(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Biodiversity Heritage Library | Children's Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

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

Google 



This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project 

to make the world's books discoverable online. 

It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject 

to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books 

are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover. 

Marks, notations and other maiginalia present in the original volume will appear in this file - a reminder of this book's long journey from the 

publisher to a library and finally to you. 

Usage guidelines 

Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the 
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing tliis resource, we liave taken steps to 
prevent abuse by commercial parties, including placing technical restrictions on automated querying. 
We also ask that you: 

+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for 
personal, non-commercial purposes. 

+ Refrain fivm automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine 
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the 
use of public domain materials for these purposes and may be able to help. 

+ Maintain attributionTht GoogXt "watermark" you see on each file is essential for in forming people about this project and helping them find 
additional materials through Google Book Search. Please do not remove it. 

+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just 
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other 
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of 
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner 
anywhere in the world. Copyright infringement liabili^ can be quite severe. 

About Google Book Search 

Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers 
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web 

at |http: //books .google .com/I 



b, Google 



I 



a^^ 



-^ 



b, Google 






b, Google 



b, Google 



b, Google 



b, Google 



-jg^gCj 



TREATISE 



CONSTITUTIONAL UMITATIONS 



WHICH BEST VrOJt 



THE LEGISLATIVE POWER OF THE STATES 
OP THE AMERICAN UNION. 



THOMAS M. COOLEY, LL.D., 



FIFTH EDITION, 

AtmrnoHa, amna rax Biamn o 



BOSTON: 
tTTTLE, BBOWN, ASH CCMPiNT. 



PrlYUt Uw Uinry 

(»' 

FrMitcIs C. Wilfon, 
Smm Fe, - Ntw Mn. 



1 by Google 



(LTr^tr 



Entarad accoTding to Act of CoDgnsi, Id th« jtMi 18T4, bf 

Ltmx, Bkow.v, ard Coutast, 
la Um Offica o[ tlie Libnrlui ol Congitw, at Waablngloii. 

Entered acmrdiDg to Act of CongiCH, in the ;car ISTS, bj 

Little, Baoim, a>d CoKrAKT, 
In tin Office of tlie Ubrarian of Congreii, at Wuhington. 

Sniand according to Act of CongTMt, in Ibc year 18SS, bj 

LiTTLK, Bainrir, amd Conpurr, 
b the Offica of the librarian of Congieae, at Washiiigtoil> 



JoH> WiLson Axr. Son, Cakbmdok. 



by Google 



PREFACE TO THE SECOND EDITION. 



In the Pre&ce to the first edition of tliia work, the author 
Btated its purpose to he, to furnish to the practitioner and the 
student of the law such a presentation of elementary constitu- 
tional principles as should serve, with the aid of its references to 
judicial decisions, legal treatises, and historical events as a con- 
venient guide in the examination of questions respecting the 
constitutional limitations which rest upon the power of the sev- 
eral State legislatures. In the accomplishment of that purpose, 
the author further stated that he had &ilhfully eadeavored to 
give the law as it had been settled by the authorities, rather 
than to present his own views. At the same time, he did not 
attempt to deny — what he supposed would be sufficiently ap- 
parent — that he had written in full sympathy with all those 
restraints which the caution of the fathers had imposed upon 
the exercise of the powers of government, and with faith in the 
checks and balances of our republican system, and in correct 
conduaions by the general public sentiment, rather than in re- 
liance upon a judicious, prudent, and just exercise of authority, 
when confided without restriction to any one man or body of 
men, whether sitting in legislative capacity or judicial. In this 
Bympathy and faith, he had written of jury trials and the other 
saf^narda to personal liberty, of liberty of the press, and of 
Tested rights; uid he had also endeavored to point out that 
there are on all sides definite limitations which circumscribe the 
legislative authority, independent of the specific restrictions 
which the people impose by their State constitutions. But while 
not predisposed to discover in any part of our system the rightful 
existence of any unlimited power, created by the Constitution, 
neither on the other hand had he designed to advance new 



by Google 



doctrines, or to do moie than state clearly and with reasonable 
conciseness the principles to be deduced from the judicial 
decisions. 

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

TH011A8 M. COOLET. 
Uhitbbsitt or Hicbiqax, 

Ann AsBOR, Julj, 18T1> 



PREFACE TO THE THIRD EDITION. 

The secolid edition being exhausted, the author, in preparing 
a third, has endeavored to give full references to such decisions 
as have recently been made or reported, having a bearing upon 
the points discussed. It will be seen on consulting the notes 
that the number of such decisions is large, and that some of 
them are of no little importance. 

THOMAS M. COOLET. 

IbmBBITT or HtCHIGlK, 

Amt AsBOB, December, 1878. 



by Google 



PBEFACE TO THE FOURTH EDITION. 

New topics in State Coostitutional Law are not numeroUB; 
bat BQch as are suggested by recent decisions have been dis- 
cussed in this edition, and it is believed considerable value bas 
been added to tbe work by further references to adjudged 
cases. 

THOMAS M. COOLBT. 
UnTxmHTT ov Uichioan, 

Jam AxBOB, April, 16T8. 



PREFACE TO THE FIFTH EDITION. 

In tbis edition numerous cases reported ranee tbe last waa 
pablisbed are referred to, and such modifications of text and 
notes as the new cases seemed to call for have been made, 

THOMAS M. COOLET. 
QnrxMiTT or Miobioiv, 

Amu Aksob, Febnniy, 1888. 



by Google 



b, Google 



TABLE OF CONTENTS. 



CHAPTER L 

DKniimoMS. 

DettDitioo of s sute, nation, people, sovereignty, and soTereign state 1 

What BOTereignt; conust« in 2 

Apportionment of sovereignty in America S 

Definition of conatitntion and conatitational government .... 2, 8 

Of anconstitntional law ^ 

The will of tlte people tiie final law 5 

CHAPTER n. 

TBK CON8TITUTIOK OF THX PKITED BTATEB. 

What the United States government the Boccesaor of ; Colonial con- 
federacies 6 

The States never in a strict sense sovereign 7 

The Continental Congress 6, 7 

Limitations npon its power ; the Articles of Confederation, and the 

supersession thereof by the Constitution 8 

Adoption of the Constitotion by North Carolina, Rhode Island, and 

the New Slates 8, 9 

United States government one of ennmerated powers 10 

General purpose of this government 11 

Powers oonderred upon Congress 11,12 

Powers under the new amendments 12-14 

Executive and judicial power of the nation 15 

Constitution, laws, and toeatiesof United Slates to be supreme! final 

decision of qnestioiu under, to rest with national judidary . . 15 
Removal of causes &^m State courts ; dedsions of State courts to be 

followed on points of State law 16>1 8 

Protection to privileges and immunities of citizens 12, 21 

Extradition of fugitives from justice 22 

Faith and credit secured to records, Ac 22, 28 



by Google 



Tlu TABLE OF CONTENTS. 

RestrictiODl npon tbe Statea SO 

Gaarantj of republican government 24 

Implied probibitiouB on the States 25 

Reserration of powers to States aad people 26 

Constraction of national bills of rights 26 

Statutes necessaiy to jurisdiction of naiitwa! ooorta 26 



CHAPTEE m. 

TBB rOBUlTtON AND AHERDHBNT OF 8TATE COnTITDTIOira. 

State goTPnimenls in existence when Goustitntion of United States 

adopted 29 

Common law in force ; what it consists in 29-31 

Eoglish and Colonial legislation 34 

Colonial charters and reToIulIoDar; constitnUons 85, 36 

Constitutions of new States 36 

Sovereignty of the people 36-39 

Who are the people, in a political sense 37 

Proceedings in the formation and amendment of constitutions . . 39—18 
Restraints imposed thereon by Constitution of United States ... 12 
What generally to be looked ibr in State constitationB .... 41-46 
Bights are protected by, but do not come from them 17 

CHAPTER IV. 

COITSTBDCTION or STATE COMBTITUTIORS. 

Interpretation and construction 19 

Who first to constme constitutions 50-^5 

Final decision generally with the coorts 55-57 

The doctrine of rei adjudicata and itan dtcitu 58-66 

Construction to be uniform 67 

The intent to govern 68 

Ttie whole instrument to be examined 70 

Effect to be given to the whole 71 

Words to be understood in their ordinary meaning 71 

Common law to be kept in .view 73 

Words sometimes employed in different senses 7^ 75 

Operation of laws to be prospective 76 

Implied powers 77, 78 

Consideration of the mischief to be remedied 7R 

Proceedings of Constitutional Convention may be examined . . 79-81 



by Google 



TABLS OF GONTBNTB. IZ 

Force ttf contempontoeona and prsc^cal constrnctioQ .... 81-^5 

UoJDst providons not invBlid 86 

Dot; in cue of flonbt on constitational questions 88 

Diredoij aod mandatory provisiona 88-98 

Constitatiooal proviaions ore imperaliTe 93-98 

Self-execatisg proTwoDB 98-101 

Danger of arbitrary rules of conBtmction , . . . 101 

CHAPTER T. 

TBB POWERS WHICH THE LEQISLATtVB DEFAATIOENT VAT KZKBCISK 

Power of American legUlatorea compared to tliat of Britosh Far- 

Uament 108-106 

Grant of l^Ulalive power is grant of the complete power . . . 106 

But not of executive or jndidal power 106-109 

Definition of l^ielative and jndidal authority 109-111 

Declaratory statutes '. 111-114 

Statnta setting aside jodgments, granting new trials, Ac. . . . 115,116 

Recitals in statntee do not bind individoals 116 

Statutes conferring power on guardians, &c., to sell laods ■ 117—125 

8(atat«e which assvme to dispose of disputed rights .... 125-129 
StatDlee validating irr^olar judicial proceedings ..... 128,129 

L^isladve divorces 130-185 

Le^lative encroachmenta upon ezecudve power 135-188 

Legislative power not to be delegated 189 

Conditional legislation 144-147 

Local option laws 147,148 

Inepealable laws not to be passed 149, 150 

Teiritofial limitations apoo State legislative authority . . . 151-153 

Inter-SUte comi^ 152 

Other limitations by express provisions 153 

linutatuHiB sprin^g from ikature of free government . . . 154, 155 

CHAPTER VL 

THE ENAOTHEKT OF LAWS. 

Importanoe of forms in parliamentary law 156,157 

Tlie two honaee of the legislaturo 157 

Differraces in powers of 158 

H eetii^ and adjoomments 158 

Contested elections, rules of procee^n^ punishing disorderly be- 
havior 159 



by Google 



Z TABLE OF COITTENIS. 

Coutempta 160,161 

Privilege! of membera 161 

Legislative committees 162 

Journal of proceedings 163 

Corrupt coDbwsta to influence legislation 164 

Counsel before legisltttore ; lobby agenta 1 65 

The introduction and passage of bills 166-169 

Evasions of constitutional provisions 167, m. 

Three readings of bills 1 68 

Yeaa and nays 169 

Vote required for the passage of a Inll 1 69 

Title of statutes 170-181 

AmendAtory statutes 181-184 

Signing of bills by presiding officers 181 

Approval of bills by the governor 184-187 

Other legislative powers of the governor 187 

When acts to take effect 188-191 



CHAPTER Til. 

THB CIRCOHBTANCBa CNDBB WHICH A LEGISLATITB ACT MAT BB 
DKCLARED tTNCOMSTITUTIOIIAL. 

Autbority to declare statutes unconstitutional a delicate one . 192-194 

Early cases of such declaration 194, n. 

Will not be done by bare quorum of conrt 195 

Nor unless a decision upon the point is necessary 196 

Nor OD objection by a party not interested 197 

Nor solely because of unjust or oppresaive provisions .... 197-202 
Nor because conflicting with fundamental prindplea .... 202-204 

Nor because opposed to spirit of the constitution 205,206 

Extent of legislative power 206 

Difl'erence between State and national governments 207 

A statute in excess of legislative power void 208-211 

Statutes iuralid as encroaching on executive or judidal authority . 209 

Or conflicting with the bill of rights 210 

Legislative forms are limitations of power 211 

Statutes unconstitutional in part 211-216 

Const itotional objection may be waived 216, 217 

Judicial doubts on constitutional questions 218-222 

Inquiry into legislative motives not permitted 222-224 

Consequences if a statute is void 224 



by Google 



TABLE OF CONTENTS. 



CHAPTEE VUL 

THB SETBKAL GBAJ>ES Or KUNlCtPAL OOTEBHVEin. 

The American sy stem one of decentralization 235-237 

State coDBtitntioDB framed in reference to it 22d 

Local government may be delegated to dtizens of the monidpality 228 

X^egislative control of mnnicipalides 230-232 

Powers of public corporationa 233 

Strict eonstmcUon of charters 281 

UuBt act through corporate aal^iorities 236-238 

Contracts uJtra vires void 235 

Corporations by pt«scriplJon and implication 288-240 

Municipal by-laws 240-249 

Delegatacm of powers b; municipality not admissible .... 249,250 
Irrepealabte munldpal legislation cannot be adopted .... 251, 252 

Presumption of correct action 254-258 

Power to indemnify officers 258-260 

Powers to be constmed with reference to purposes of their crea- 
tion 2e0-268 

Anthorily confined to corporate ImiiU 268 

Municipal subscriptions to works of internal improvement . . . 268 

Negotiable paper of corporatjons 269-274 

Municipal miliUr; bounties 271-282 

L^slative control of municipal taxation 282-289 

Legislative control of corporate proper^ 289-295 

Towns and counties 295-303 

Ifot liable for neglect of offidal duty 802 

Different rales govern chartered corporations 303 

In what respect the charter a contract 304-810 

Validi^ of corporate oi^ianizations not to be questioned collater- 
ally 811 

Hi0 State sometimes estopped from qnestioning 811, n. 

CHAPTER IX. 

FKOTECTION TO PSRSOIT AlfD FBOFKBIT ITHDEB TBS CONSTITCTIOII 
OF THE UNITED STATES. 

Bin of Rights, importance of 313-315 

Addition o£ by amendments to national Constitntion 316 

Bala of attainder S16-S21 



by Google 



Xa TABUS OF OOlfTBHlS. 

MxpoH facto Wwa 821-8S1 

LavB impfuriog the obligstion of contracta 331-357 

What charters are contracts 837, 338 

ContractiDg away powers of Bovereignty 839-341 

Grant of exclusive pririlt^es 344 

Changea in the general Imrs 34A 

Obligaljon of a contract, what it is 34&-348 

Modification of remedies always adnusnble . 849-357 

Appraisal laws , 353 

Stay lawa, when void , 855 

Laws taking away subetandal rights 355, 356 

ValidaUng imperfect contracts 857 

State insolvent laws 857 

The diirteeDth and fonrteentb amendmenta 858, 859 

CHAPTER X. 

THE CONBTtTTITIOKAI. P&OTBOTIOKS TO PEBSON^L LIBSSTT. 

Tilleinagfl in England 880^68 

In Scotland 868 

In America 863 

Impressment of seamen 365 

Unreasonable seardieB and smanres 865-369 

Every man's house his castle 365, 374 

Search warranU 369-874 

Inviolability of papers and correspondence 871-374 

Quartering soldiers in private honses 875 

Criminal accasatioDs, how mode 376 

Ball to persons accused of crime 877-879 

Prisoner standing mute 879 

l^ial to be speedy 379 

To be poblic 880 

Not to be inquisitorial 881 

Prisoner's statement and ooofieasiona 881-388 

Confronting prisoner with witnesses 388, 389 

Prisoner to be present at trial 390 

Trial to be by jury 390 

Number of jurors 391 

lUght of challenge 892 

Jury to be of the vicinage 892 

Verdict to be unanimous and free 898 

Instructions of the jadge^ how limited 898 

Power of juiy to judge of law 894-898 



by Google 



TABLB or OONTESTB. xiU 

Aceosed not to be tirice put in jeopardy 899-402 

Eicesaive fiaea and cniel and imoauHl poniBbnuinti . , , , 102—404 

Kght to coonsel 406-412 

Protection of profesBional oonfid^kOB • 408, 409 

Daty of oannsel 409-412 

Whether to address the jury on the Uw 411 

PaDishmeDt of miBcxmdHCt in attoraeys . , • 41 1 

Writ ot habaat corpvi 413-^7 

Legal restraints npon penon^ liberty ..,.,.... 414—418 

Neoeadt; of JTabeat dtrpm Act 418-421 

What conrlB issue the writ 421-4S5 

Cieiieral purpose of writ, and pracdoeapoD ....... 425-437 

Bight to dtscussioo and petition 43? 

Right to beu- arms 428 

Jealous; (rf standing armiea ..,......,.< 428, 429 

CSAPTEB XL 

OF THI PBOTSCTION OF PBOPBBTT BX TBE " LAW OF THB LAKD." 

Magna Charta, chap. 29 430 

Constitational proviuons inanring protection " by the law of the 

land" 481,n. 

Meaning of "due processor law "and "law of the land" . . 482-489 

Tested rights not to be disturbed 489 

What mx9 rested righU 440-447 

Interests in expectancy are not ..... i., ... . 440 

L^islative modification of estates . • 441 

Control of rights springing hma marriage 442 

Iic^l&tive oontrot <rf remedies ........... 443, 444 

Tested rights of action are protected 445 

Confiscation of rights and property 446, 447 

StatatM of limitation 448-451 

AlteratioD in the rules of evidence 452-456 

Rettoepeedve Uws 455-478 

Curing irregularities in legal proceedings 457—459 

Validating imperfect contracts 459-471 

Pendency of suit does not prevent healing act 470 

What the healing statute most be confined to 471-473 

Statutory privilege not a vested right 473, 474 

CoDSeqnendal injuries from dianges in the laws ...... 475 

Betterment laws 477-480 

SiUDptaary and Other like Uws 476 



by Google 



xiT lABLB OF CONTmiTS. 

Uneqtul and partial legialuion 481-19S 

Local laws may -ntj in different localities 483 

Soapension ot general laws 481 

Equality the urn of the law 486 

Strict constructios of spedal grants 488-490 

Frinlegei and immunitiea of atizeoa 491,498 

Jodicial proceedings void if jnrisdicUoo wanting 44S 

What constitutes jurisdiction 498 

Consent cannot confer it 493, 494 

Jurisdiction in divorce cases 49$-499 

Necessity for process 498-502 

Process by publication 499-502 

Courts of general and special jurisdiction 502, 508 

Effect of irr^ularities in judicial proceedings 504, 505 

Judicial power not to be delegated 508 

Must be ezerdaed under accustomed rules 506, 507 

Judge not to sit in bia own cause 507-511 



CHAPTER XIL 

LIBEBTT OF BFBECH AKD OF THE PSEBS. 

Protection of, by the Constitution of the United States .... 512 

Stale constitutional provisions 512, n. 

Kot well protected nor defined at common law 515 

CeosorBhip of the press ; publication of proceedings in Parliament 

not formerly suffered 515 

Censorship of the press in America 516 

Secret sessions of public bodies in United States 518 

What liberty of the press consists in 518-521 

Common-law rules of liability for iujurions publications . ■ . 521-525 

Cases of privileged communications 525-527, 568, n. 

Libels on the government, whether punishable 528-531 

Sedition law 529 

Further cases of privilege ; critidsm of cheers or candidates for 

office 532-^41 

Petitions and other publications In matters of public concern . . 534 

Statemente in course of judical proceedings 545-547 

by witnesses 545 

by complainant, &c 546 

by counsel .....•••• 547—549 

Privileges of legislators 550-552 

Publication of privileged conuntinioations through the press . . . 552 



by Google 



TABLE OF COSTBKTS. XT 

Aceoonts of jndidal proceedingB, how &r protected .... 552-556 

Pririh^ of pobliahera of news 556-56fi 

PaUicmtion oi legUUdve proceediuga 667, 568 

Hw joiy aa judges of the law in libel CAMS 569-573 

Mr. Fox's libel Act 569 

" Good motives and jiu^fiaUe ends," burden of Bbowing is on de- 
fendant 57S--575 

Whftt is not laffident to show . . 575, ». 

CHAPTER XnL 

BKLtOIOOS LIBKRTT. 

Cm tftken by State ccmstitutions to protect 576 

IMstingnisbed from religions tolera^on 570,571 

What it preclndea 580-582 

Does not preclude recognition of superintending Providence by 

pablic aothorides 682 

Xor appointment of chaplains, fast^lays, Ac 683 

Nor recognition of fact that the prevailing religion is Chris- 
tian 583 

The maxim that Christianity ia part of the law of the land . . 584-588 

Punishment of blasphemy 585 

And of other profanity 589 

Sunday laws, how jnstiBed. 589 

Respect for religious scruples 589-991 

Religions belief as afiectiug the oompeten^ or credibility of 

591 



CHAPTER XIV. 

THE FOWEB OF TAXATION, 

Unlimited nature of the power 593-600 

Exemption of national agencies from State Uxation .... 697-600 

Exemption of State agencies from national taxation 598 

Limitations on State taxation by national Constitntion .... 600 

Power of States to tax aubjecta of commerce 601 

Diaerinunations in taxation between citizens of different States . 602 

El«aenta essential to valid taxation 603 

Parpoaes moat be pnlilic 604 

L^slatnre to judge of purposes 604-608 

UolawfU exactions 608-612 



by Google 



Xri TABLE OF CONTENTS. 

yeceswty of apportionment €12 

Taxation wiib reference to benefits in local improvements . . 616-628 
Local aasessmenta distinguished from genenJ taxation. . . . 616, 619 

Appordoament of the burden in local assessments 620-636 

Taxatjona most be uniform throughout the taxing districts . . 622-656 

Boad taxes in labor 635 

Inequalities in taxation inevitable 636 

Legislature must select subjects of taxation 637 

Exemptions admissible 637-641 

Constitutional provisions forbidding exemptions ...... 640 

Lc^slative authority requisite for every tax 641—644 

Excessive taxation 644 

The maxim de minimit lex non curat in tax proceedings .... 644 

What erron and defects render tax sales void 645, 646 

Bemedies for collection of taxes 645 



CHAPTER XV. 

THK EUNBNT DOHAIX. 

Ordinary domain of State distinguished from eminent domain . . 647 

Definition of eminent domain 648 

Not to be bargained away ; general rights vested in the Stales . , 649 

How &r possessed by the general goTemmoDt 660 

What property subject to the riglit 651 

Legislative authority requisite to its exercise 653 

Strict compliance with conditions precedent necessary . . . 654~656 
Statutes for exercise o^ not to be extended by intendment . . . 656 

Purpose must be public 656 

What is a public purpose 657-665 

Whether milldami are 662-665 

Question of, is one of law 666 

How property to be taken 666-668 

Determining the necessity for 668, 669 

How much may be taken 670,671 

What constitutes a taking 671 

Consequential injories do not 671-676 

Appropriation of highway to plank road or railroad .... 676-691 

Whether the fee in the land can be taken 691-693 

Compensation to be made 693 

Time of making 694-697 

Tribunal for assessing 697 

Principle on which it is to be asseMod 698-705 



by Google 



TABLE OF 0ONTEHT8. XTU 

AUowiDoe of iDddeolAl injuries and beoefiU 703-705 

What the asBeument coyfira 705 

ActioD where work improperly constmcted 705 

CHAPTER XVL 

THE POLICE POWER OF THE STATES. 

IMiiitiiH) of police power 706 

PerTMling nature of 706-708 

Power where ve«ted 708, 709 

Exerdn of, in respect to charter contracts 710-718 

license or prohihitioa of sales of intoxicadDg drinks .... 718-722 
Payment of license fee to United States gives no ri^t in oppo- 

ution to State law 721 

QnaraotiDe regulations and health laws 722 

iDSpection laws ; harbor regulations 723 

Distinction hetween proper police r^nlaUon and an interference 

with commerce 724 

State taxes apon cconmerce 724-726 

Snodaj pcrfice regulations 726 

fixation of highways bj the States 727 

Ctmtrol of navigable waters 728-733 

What are navigable 728 

Congressional relations of 731 

MoQopoliea of, not to be granted by States 730 

Power in the States to improve and bridge 731 

And to establish ferries and permit dams 732 

BegulalioD of speed of vessels 733 

Destmctiou of hoildiDgB to prevent qiread <tf fire 7S9, 740 

levees and druns 73S 

Begnlation of dvil rights and privileges 734-739 

BeguUtion of business charges 734-739 

Eatablisbmeut of fire limits and wharf lines ; abatement of noi- 

sanOBs, Ac 740,741 

Other State regnlations of police 740-746 

Power of Slates to make breach thereof a crime 745 

CHAPTER XVn. 

THE EZPBESSIOlt OF THE POPtJLAB WILL. 

People possessed of the soverdgnty, bat can only exercise it 

nnder legal forms 647 



by Google 



zriti - TABLES OF OOHTEKTS. 

Elecdons the mode 748-750 

QnalificatJoDB for office 748, n, 749, n 

Officers defaeU3 aod dejvre 750, 751 

Who to participate io elecUoaa ; oondidona of residence, presence 

at the polls, &C. 752-754 

Beudence, domidle, and habitation defined 754-756 

Registration of voters 756, 757 

Other regnladoDs 758 

Preliminary action by authorities, notice, proclamation, Ac . . , 759 

Modeof voting; the ballot 760 

Importance of secrecy ; Becrecy a personal privily .... 760-763 

Ballot must be complete in itself 763, 764 

Parol explanations by voter inadmissible 765 

Names on ballot should be full 765 

Abbrevialions, initials, Sea. 766, 767 

Erroneous additions do not affect 767 

Evidence of surrounding circumstances to expltun ballot . . . 768,769 

Boxes for different votes ; errors in depositing 770 

Plurali^ to elect •. . 747, n, 770, 771 

Freedom of elections ; bribery 771 

Treating electors ; service of process 772 

Betting on elections, coutracts lo influence them, &c 772 

Militia not to be called out on election days 773 

Electors not to be deprived of votes 774 

Liability of officers for reiusing votes 775 

Elector's oath when coadusive, 776 

Conduct of election 777 

Effect of irregularities 771-779 

Effect if candidate b ineligible 779 

AdmiBsioD of illegal votes 780 

Fraud, intimidation, &c. 780-782 

Canvass and return of votes ; canvassers act ministerially . . 782-784 
Contesting electioDs; final decision upon, rests witb the courts . 785-791 
Caovaaser'B certificate coucluBive in cidlateral proceedings ; 

courts may go behind 787 

What proofs admissible 788-790 

Whether qualification of voter may be inquired into by courts . . 790 



IlTDKX 793 



by Google 



TABLE OF OASES CITED. 



^ibott r. CmnmoaiTMlUi 

p. Lindenbower 46S, 464, 4TS 

AbeU r. Douglui 
Abel* V. Snperrlian of Inghun 
AbeDdrolb v. Greenwich 
Abercromble c. Baxter 
Aberdeen v. SaDnder*on 
Aberdeen Academy d. Aberdeen 
Abington n. Korlh Bridgewater T6S 

AblemiD v. Booth 3, 424 

AckenniD c. Jane* 
Adami, Ex partt 

V. Adanu 34, 4ST 



V. Bemin 
p. ConUlaid 
V. Field 



V. SomerriDe 



p. Voee 486 

r. WwcMwt Buk SM, 800, SOS 

AdanMoa v. Davit 461 

Ad HiDe, Steamer e. IVeror 26 

Ah Fook, Hatter of 4SS 

Ah Foj, ExparU 347 

Ah Kow V. Nnnan 484 

Ahl D. Gleim ST0, 459 

Akron e. Chamberlain 262 

Alabama, &c Ini. Co. b. Bovkfn 4«6 

Alabama, Ac. B. R. Co. e. KeDiier 842 
AUbama R. B. Co. e. Kidd 207 

Albany Street, Hatter of 19T, 217, 437, 
SG7, 600, 671, 606, 703 
Albertwm p. London 127, 465 

Albrecht v. Sute 173, 178, 614, 016 

AlbritdD v. HantiTUle 304 

Akock p. Cooke 4S8 

Alconi V. Ramer 141, BS4 

Alderman v. School Director* 228 

Aldrichv.CbeabinB.R.Co. «T3,ea9,706 
r. Aldrkh 162 

kKIomx S9.HMn 



Aldrich p. PrlntiDK Co. 689 

V. Sharp 606 

Aldridse n. RaUroad C(x 466, 668 

p. WiLiama 80 

Alexander r. Alexander 621 

p. Baltimore 630 

p. Bennett 106 

V. HcKenzie 831 

i-. Hilwaukee 362, 673, 876 

u. Ht. Sterling SD6 

B. Taylor 61 

v. Worthington 68, 79 

AUbyer v. Sute 76, 466 

AUeghanj City p. HcClorican 373 

Allegheny Co. p. Gibw>n 2M 

Allegheny Connty Home'* Caie 177, 170 

Allen p. Aldrich 416 

p. Ardier 466 

V. ArmetroDg 468, 464, 47S 

V. Chippewa Fall* 266 

t>. OroiMt 646 

0. Drew esti, 638 

p. Jay 268, 368, 604, 607, 664 

p. Jonet 658 

p. Louiiiana 214 

p. HcEeen 807 

e. Staple* 870 

P. Sute 801 

e. Taunton 268 

V. Titon 176 

Allen Co. Commlanoner* d. SilTen 214, 

218 

Allen town v. Sbotj 629 

Alley p. Edgcomb 276 

Allor p. Auditon 106, 606 

Almy V. CaliromU 601 

Alston p. Newcomer 766 

Alter"* Appeal 468, 485 

Alton 0. Hope 311 

Alton Wooda, Caie of 438 

Altvaler v. Baltimore 266 

AlTJn 0. CoUin 778 

AlTOrd p. Collin 646 

Amann v. Danim 627 

Amberg p. Roger* 463 

Amboy V. Sleeper 242 

Ambrote p. Sute 2fit 

AmenU d. SUmford 686 

Fur Co. n Uniltd SUtM 730 



by Google 



TABLE OP CASES CITED. 



Ameriaw Print Work* v. Lawrence ( 
RiTer WaWr Co. v. Ann- 



V. Fort Huron Lag Drirlug and 

BoomEog Co. 447, 6 

Amej V. All^liaoy Ci^ 1' 
Amii V. Smith 

Amr D. Smith I 

Aniferdon v. Bniroiri Ti 

Andenon v. Diurn 1< 

V. Jackion i 

V. Kenu Dralninc Co. 619, 63S, 61 

e. MilUkin 41 

V. State 4 

Andorer v. Grafton 2' 

Andrei v. Wells 61 

Andrew v. Bible Society 684, 61 

Andrews, Ex parle T. 

V. Beok 61 

V. Insurance Co. 2^ 

V. Page 182, « 

tr. People II 

8. BoiwU 4< 

r. Slmmt 41 

e. Suie 107, 302, 300, 41 

t>. Wheaton 41 

Annable v. Patch 4- 

Annapolia v. Harwood II 

E. Sute i: 

Anuii V. People SI 

Anonymous 4- 

Anthonjr V. State 31 

ADtisdel B. Chicago, Ac. R. R. Co. 7 

Antoni u. Wright 197, fr 

Antonio D. Gould 177,1' 

Anifo i>. Cnrrell II 

Arbegnit o. LouisTille 6! 

Arclander, Matter of 4! 

Arimond v. Qreen Bay Co. 6^, 672, 6: 

ArminKton v. Bamet 340, 696, 062, 01 

Armstrong d. Harshaw 24, 6t 

V. Jackson 212, 4) 

ir. State a02, St 

Arnold 17. Arnold 6t 

V. Darii 7i 

V. Decatnr 664, Gt 

tr. Kelley 114, « 

D. McEellnl' U 

o. Mundj 7! 

Arrowimith v. Burlingim 41 

Arundel s. McCoUoch 71 

Asb t). Cummingi 664, 696, 6) 

c. People 246, 726, 7^ 

Ashbrook v. Commonwealth T. 

Asbcrott 0. Bourne 6( 

Ashley r. Petenon 8: 

V. Port Huron 267. 810, 6" 

Ashuelot R. R. Co. tr. Eliot 31 

Aipinwall V. Commistionen 2! 

Aitlev V, Younge 6- 

Astortr. New York 41 



Asimm V, 

AtchiM>n V. Bartholow 280 

D. King Sil 

Atchison & Nebraska R. R. Co. ■>. 
Baty 456, 716 

Atheam v. Independent District 226 

AUini V. Plimpton C9B 

V. Randolph 286, 807 

Atkinson e. Bemis 240 

V. Detroit Free Press 663 

p. Dunlop 116,440,466 

r. Marietta & Cincinnati R. R. 



Co. 



666 
706 



Chicago, &c. R. R. f ' 

Atlantic Delaine Co. v. Mason X 

Attf.-Gen. c. Barslow 788, 786, TI 

f. Barton II 

V. Brown 186, 163, 184, Z 

B. Brunst I 

r. Cambridge 21 

V. Chicago, &c. R. R. Co. 203, 84 

712,713.714,787, 71 

e. Common Council af Detroit II 

V. Detroit & Erie Plank Road Co. 6 

t>. Ean Claire 36, 221, 61 

V. Ely 764, 765, 768, 777, 788. 786, 71 
c. Exeter 21 

p. Morris i Essex B. R. Co. 6: 

V. New York 2i 

V. O'Nem H 

p. Railroad Companies 183. 839, 61 
». Supervisors of Lake Co. 2! 

e. SuperTlsora ot St. Clsir 7' 

f. Winnebago, &c. Plank Road 

Co. 6! 

Atwater t>. Woodbridge 801, 81 

Atwill V. Mackintosh (6 

Atwood B. Lincoln 2J 

D. Welion 61 

Auditor V. Holland li 
Auditor of State b. Atchison, &c 

R. R. Co. II 

Augusta e. Sweeney 8! 

Augusta, &c R. R. Co, v. Renz 7! 

Augusta Bank n. Augusta 349, K 

Augustin V. Eggleilon 71 

Aold K. Butcher 348, U 

V. Walton 7i 

Aurora d. Reed 6i 

B. West 60. h 

Ansten b. Coggeshtll 2f 

V. Miller '. 

Auatia tt id., In n 41 

V. Murray 218, 246. 24S, Si 

Austine V. State a{ 

ATery v. Tyringham G' 

Aycock V. Martin 31 

Ayen v. Orider 528, 6! 

Aynetle v. State 4! 

Ayiea tr. Methodist Church 584, 61 



by Google 



TABLE OF OASES CITED. 



Bibcock V. BttSftIa 810, 7 

BudBalopo n. CoamoaVMlth S 

Bubrider ■>. Uoota 8 

BMku i>. LebuioD S38, S40, 6 

Bhoo v. Arthor 7 

t^ Cailender 444, 470, 4 

B. Fiatwr 4 

«■. W«Tne Conntj 4 

■. York CouDty 7 

Ba^'t Appeal 116, 4 

Bunmll s. LoDdon & N. W. B. Co. 6 

Btllej >. Common wealth 

V. Fiihar 7 

V, Elike 4 
*. Geiltt7 

■1 Mayor, &«. 2 

V. HtlUnberger C 

■. New York 396, 306, 8 

V. Philadelphia, Ac. B.B.Co. 68, 1( 

713, 14, 7 

V. Wright 8 

Bafley'aCaae 4 

Bailing b. West 2 

Baird b. Hafor 6 

Baker e. Bostoa 7 

c Bnunan 107, 316, 2 

V. Cincinnati 

u. Gordon 4 

V. JohnMi) W8, 6 

V. Kelly 4 

D. Eerr 6 

nLewU 7 

p. Hattocka 

V. Panola Co. 6 

B. People 4 

«. Portland 7 
(uRaod 

■>. Suto 400, 4 

«. Stonebraker'i Adm'n 4 

v. Windham 2 

Balch r. Commiaaioneri B 

BaUwio B. Bank of Newbenr 8 

r. Chicago 2 

r. BUgg 3 

V. Gre«n 2 

[F. Hale 8 

F. Newark 849. 4 

B. New York 

D. North B.__" 

Ban B. Chadvick 

B. Gilbert 

B. Wlncheater 

Baltimore r. Baltimore, Ac. 1 

Co. 

V. Ce<net«i7 Co. 

B. Clnnet 

B. Eachbach 

B. Pendleton 



Balllmore b. Suta 70, 83, 136, 109, 206, 
218, 220, 238, 483, 708 
Baltimore, && B. R, Co. v. Magmder ~" 



,. Nesb 



666 



> D. PitEibnr^, &«. R R. Co. 671, 608 
I Baltimore, Ac Turnpike Co. o. Union 

R. R. Co. 842 

• Bancroft n. Domaa 148, 718 
1 B. Lynnfleld 200 
' B. Thayer 220 

> Handel d. Uaae 7B 
I Banga b. Snow 643, 646 
; Bank d. Hine* 610 

> B. SnperTiion 697 
i Bank of Auguita b. Earie 162 
i Bank ofChenangoD. Brown 141,144,147 
I BankafChilUcothec. Chlllicothe 234 
I BankofColambiae. Okelf 485,488 

Bank of Commerce v. New York 607, 698 
I Bank of the Dominion d. MoVeigh SSS 
I Bank ot Hamilloa b. Dudley'* Leaaee 18, 
212,444 
I Bank ofBlinoiiB. Sloo 66 

. Bank of Mich. b. WllliamB 200. 483 

'■ Bank of Republic b. Hamilton 161 

> Bankof Rome B. Village of Rome 142 

• Bank of the SUte r. Bank of Cape 

t Fear 888 

B. Cooper 466 

! 0. Dalton 24 

; Bank of United Btatea b. Halalead 83 
I t>. Daniel 10 

0. Norton IS 

i Bank of Utica b. Meraereaii 408 

I Bank Tax Caae 697,608 

I Banken' Cue 4S4 

> Bankhead b. Brown 668, 660, 660 
Bank«, Ex pari' 878 

1 Banka, The v. The Mayor 697 

I Banning b. Commonwealth 743 

: B. Taylor 482 

I Baptiit Church o. Wetherell 
I Barbemeyer b. Iowa 
i Barber b. Root 
I t>. Tmitees ofSchoola 

: Barbour d. Barbour 
I B. Camden 

I Barclay d. Howell's Letsee 
: Barker d. Clereland ob 

B. People 26, 78, 402, 748 

I B. PittBbargh 836 

Barling b. We«t 248, 240 

I Barlow b. Lambert .12 

• Bamaby v. State 
i Barnard e. Bartlett 
t Barnes B. Atchiaon, 
1 V. District of Columbia 

B. Fint Parish In Falmontb 

I V. McCrata 

I B. Pike Co. 

! B. SupeTTisors 

) Bamet b. Bamet 

' Barnett b. People 



677, 678 
14,21 

407, 498 



270,470 



728 
874 



lett B. FeopI 
f. itaiboaa 



Co. 



by Google 



TABLE 07 CASES CITED. 



BMiMit f . Ward 


IBS 




784. 776, 


BaiKum ». Gilpin 


748,780 




790 


B«rT r. Moore 


646 


Beaty n. Kuwler 


233 


Bwrett P. Cruie 


602 




107, aos 


Bwron v. BalUmora 


26 


Beandean n. Cape Girardeau 
BeaoraKard n. New Orfeant 


186 


BfttTonet, Matter of 


877,878 


IS 


B«rrow b. P«ge 


6&S 


Beck D. StilKl 


521 


Battowi p. BeU 


663,663 


Be<:kwith V. K»!ine 


860 


Bktj, Ex porta 


424 


BedardtP.HaU 


164 


v.L«d£ 


768, 760, 7T6 


Bedle 0. Beard 


230 


t>. MerceiD 
But;'! Cue 
Bartemeyer p. low* 


19, 424, 427 
427 

22,740 


Beebe b. Stata 110, 116, 201, 


100, 217 


Beecher v. Baldy 


Butlielein; t>. People 


676 


Beechlng-i CaM 


420 


B«rtiK>lome» ». Hvwintoa 


278, 279. 470 




Ca 649, 


Bartlett d. Crouer 


266,808 


tl6T, 669. 66 


,666,668 


V. KiD>ler 


237 


Beene v. Slate 


412 


«. EDighl 


28,24,600 


Beer Co. o. Hauacliaietta 348 


708. 718, 


p.L«.g 


444 


719, 720, 722. 748. 748 


c. Morri. 


70 


Beer* v. Beer* 


606,607 


Bartmeyer v. Iowa 


74« 


f. Botaford 


801 


Barlo >. Himrod 


130, 143, 144 


V. Qaugliton 


849,360 


Barton e. SynicuM 
BartruH c. Reroey 


804. SIO 


Been r. State 


88» 


460 


Behi«iu B. Allen 


664,666 




161 


Beinie b. Brown 


319, 331 


V. Na.hTille 


100,843,600 


BeU B. Clapp 


868.371 


Baiiett d. Porter 


238 


B. Monfaon 10. 20, 449 


BMten B. Carew 


604 


0. Proaty 


068 


BMcLeliior o. Batehelder 


497 


V. Bice 


870 


I'. Moore 


801 


t). State 


880,888 


Balei B. DeUTan 


600 


V. Sun Printing Co. 


646 


c. KinibnU 67 


110, 116, 102 


V. Weit Point 


811 


0. Mi:Dowell 


442 


Belleiille R. R. Co. «. Gregory 


71 


V. Relejea 


68 




t. Spooner 


69 


678, 691, 705 


Bate* Co. e. Wintera 


269 


Bellmeyer b. School District 


226 


Batman v. Hegowan 


786 


Bellow* D. ParK>n« 


66 


Batre v. SUIe 


389, 401, 408 


Bellport, Parish of v. Tooker 


677 


Battle V. Howard 


177 




636 


BaDRher v. Nelwn 


828,440 


Bemi* t. Becker 


64 


Bium V. CUnie 


622 


Benden v. Nashua 


678 


D. Rapbael 
Baxter. ftfaCter of 


188 


Bender o. Crawford 


866,460 


820 


r. State 


186 


o, Brooks 


786 


Benedict v. Qdt 


678 


r. WinooBki Tnmlriko 


303 


V. Vanderbilt 


724 


Bayard v.Kllnge 


466 


Beofordu. GibMin 


834 


748 




731 


r. Singleton 


86 


Bennett b. Bom 


202 


Bay City P. State TreMorer 


88,274,286 


286,246 


Bay City, «c. Co. v. Aaitin 


849 


B. Brook* 


727 


Bayerqne v. Cohen 


19 


B. Bull 


201 


Bajiii V. Lawrence 


678, 676 


B. Deaoon 


627 


Bayly v. Fourchy 


648 


B. Fisher 


468 


Bay« V. Slale 


sae 


V. Ham* 


442 


Beach r. Ranney 


628 


B. New Orieani 


261 


V. Vilei 


19 


D. State 


6M 


V. Walker 


466. 469 


Benoist b. St. Louis 


626 


Beal V. NatoD 


440 


Bentley r. Mountain Lake. &c. 


-io. 666 


V. State 


162 


Benton e. Albany 


206,206 


Beall r. Beall 


441, 481 


B. New York 200,292,298 


205.836. 


Beals B. Amnilor Co. 


284 




712, 717 


BennI v. Beard 


600.602 


Bentinck b. Fnnklin 


460 




623,661 


Bents e. Grare* 


493 


r. Rmilli 


206, 302, 808 


Benz B. Weber 


174 


0. TappRQ 


627 


Berlin D. Gorham 


140 



b, Google 



TABUS or CA8B8 CETED. 



V. CartBT ' 

V. RuMdell 
BfftliDld D. Fox 
BcTtho^f e. CReile? 
BerUmneaD v. School Director! 
Bethanj v. Spenj 
BathoM D. aijM 
B«*ard b. Hoflbun 
Bibb B. Janney 
Bibb Countj Loan Awodation t 

Bicbmrda 
Biddle «. Commonirealtb 
BidweU p. WhitUker 



Bit Orova r. Weil* 



iR» 



STO, 2T2 
41S 



>. Norwtcb 
BUUofa p. Detten 

e. Wing 
BilbMyer e. ETani 

BiBMler p. Damon 24, GOO, 508 

II Bridge Cm* 837, U1,47S, 
4S8 
726 



V. D*n«[t 
r. Perkin* 



t. Sun 387 

V. Wmco Conn^ IBS 

Birdull ■>. Curick 167 

Biabop p. Marki 034 

Biriinpa' CaM, The 438,483 

BiMeil p. Briggi S3, 600 

V. Jeflertonrilla 270, 272 

r. Kankakee 270 

r. P«nroM BS 

Black B. Black 499 

iL Slate 401 

Blackford v. FelUcr 461 

Blackinton c. BlacUntoa 69 

BUckman r. HalTei C6S 

BlMkwood r>. Van Vleet 76, S64 

Bladen k. Philadelphia 

Blahot V. State 

BUin V. Bailejr 

BUir B. PoTehand 

p. Kilpatrick 4H 

V. Milwankee, &c B. B. Col 
r. Ridgeler 37,819 

Blake V. Dubnqne 
B. Rick 

p. St. LoDia 304 

r. WlDooa, Ac. R. B. Co. 714, 788 
Blakemore c. Dolan """ 

Blandiard p. Bteanii 
Blaodford School Diibkt p. Gibba 780 
BlandiDK p. Burr 142. 284 

Btelcbler v. Momt 



I Bleaknev p. Bank of GrMucattle 460, 468 

"' ' J p. GaWeaton 168, 108, 280 

, Blewett V. Wvandotte, &4^ B. B. Co. 

! 716 

I Biin p. CampbeU 4^ 

Bliaa p. Commonwealth 202, 4SS 

V. Hoamer 661 

p. Kraut 220 

I Blockp. JackwnTilla 722 

Blocker b. Bum«u 691 

• Blood D. Meicelliott 176 

I Bloodsood p. Mohawk & Hndaon R. B. 

Co. 103, 665,667.6e9.6e8.6M. 006 

Bloom V. lUcharda 32, 678, 684, 690, 

726 

Bloomer v. Stolle; UH 

BloomQeld p. Trimble 242 

Bloomtleld, &c. Co. p. Calkini 679 

BloomlngtoD d. Bar 904 

Brokaw 2C3, 267, 810 

Wahl 246 

BIoHbnis, Ac. R. R. Co. p. Tion R. R. 

Co. 20 

Blomit B. JuHtTille 2ES, 4flS, 620 

BlrdenbDw v. Hilee 408, 74S 

Board of &)mmi8(ionert e Btsdtord 262 

V. Bream 279 

V. Bright 469 

p. Lucai 860 

p. Pidm 728 

Board of Education v. HcLaodiboT- 

oagh 6H 

p. Minw 46, 227, 682, 686 

p. Thompaon 226, 227 



TmDon 484 

Board of Pablio Worka p. Columbia 

College 24 

Board of Snperrtoort p. Heenan 1 72 

Boardman b. Beckwith 467 

Bode P. State 718, 710 

BodweU p. Oigood 636 

Bogardaa v. Triuilr Church 32 

Bt^ert p. IndiaoapolU 246 

Boggi B. Merced, Ac. Co. 648 

Bohannon b. Commonwealth S74 

Bohl D. SUte 690 

BohlniaiiP, Green Baj.&c.B.B. Co. 6M, 
666 
Bolce e. Boiee 866 

Boiidere b. Citizen*' Bank 221 

Boiling B. Leraner 18 

Boltman and Swartout, Expartt 426 

Bolton B. Johns 444, 467 

F. Prentice 41S 

Bombangh d. Bombangh 441 

Bonaparte, Prince Pierre Trial of 381 
Bonaparte t. Camden Ai Amboy R. R. 

Co. 26, 287 

BMd p. Appleton 64 

r. Kenoiha 619, 620, 646 

V. SUte 876 

Bonham p. Nerdlei 271 

BonuU D. Lebanon 727 

Boogher b. Knapp Ki2 

Booker p. Toong 740 



by Google 



TABUE OF CASES OrtBOy. 



. Bi*dler D. Fijhcr 



V. Trin 183 

Booth r. Booth 460 

D. Woodbury 279, 3S0, 606, 693 

Borden v. Titch 24, 497 

Boro V. PhKlipa eS4 

BotoD^ of DuDmore'i AppeaJ 232, 2S4, 
288,387 
Boroagh of Tork «. Foncht 262 

Bo«le7 V. MattiBgley f" 

BoMier b. Steele 1 

Botton V. Cammini 202, It 

D. SchkfleT 24A, a 

V. Shmw 247, 7: 

BoMon, &:. Railroad Co., Inn A 

Boaton, Coocord, A M. R. B. Co. 

n. SUle 7 

Boston & Lowell R. B. Co. n. Salem 

& Looelt R. B. Co. S 

BMtoa & Boxburr Hill-dani Corpora- 
tion V. Kewiuan 663, 664, 
Boalon Mining, Ac. Co., Matter of II 
Boaton Water Power Co. v. Boitou 

t Woreoiei- R. R, Co. 841. ft 

Boitwick: v. Ferkiaa 498, 4: 

Bo«well B. Common weal lb S 

JO. Sute S 

Botta 0. Williami 

Boucher v. New Haren 3 

Boughlon ». Carter & 

Bourland d. Eldioo fi 

i>. Uilrlretb IM, 754, 7 

BoQme t:. The Sing 4 

Bow B. Alieoitown 227, 289, 2 

Bowdoinham ». Richmond 232, 3 

Bowen D. Byme 6 

V. nixoo 7< 

D. King 2 

D. Preaton 4 

Bowie V. LotI 

Bowling Green r. Carwrn 246, 7 

Bowman v. Middleton 199, 209, 4 

G. Smiley 21T, 8 

Boyce v. Sinclair 456,408, 4 

Boyd V. Alabama 7 

K. Bryant 148, 7 



Iter V. Fi 
p. Heath 



D. State 
Boye D. Girardey 
Boyland c. New Tork 
Boyle, Matter of 

■1. Zacharie 
Braokett v. Norcrou 
Bradbarj v. DaTis 
Braddee v. Brownfield 
Bradford v. Brook* 

V. Gary 



». Buffalo, &c. R R. Co. 



179, 34S, S 



F. People 69T 

Bradjhaw v. Heath 23, 24. 497, 600 

n. Omaha 224, 280^ 622 

D. Rogen 694 
Bradt v. Towiley CSS 
Bradwell v. Blinoia 14, 22, S8^ 492 
Brady v. Bronion 666 

t>. King 472 

n. New Tork 273 

V. Northwetten Inturance Ca 346, 

740 

r. RichardKHi 498 

B. We«( 184 

Bragg e. Meyer SO 

V. People 473 

Bragg'i Case 490 

Brainard b. Coleheiler S40 

Branch r. Tomlinson S17 

Bnuicb Bank of HobHe v. Hnrphy 188 

Brandon v. Cowing 409 

.. Peoirfe 887 

'. State 176 

Branham r. Itrnge 137, 1B2, 188 

Bimnion r. FhiUdelpbla 263, 716 

Braiiard v. LangcTin 771 

Braynard v, Maraball 10 

Breilenbach v. Busb 866 

Breitung v. Lindaaer 340, 860 

Brenham e. Story ISI 

Brent b. Chapman 449 

Breroort ». Detroit 467 

>. Grace 122, 123. 124 

Brewer v. Bowman 668 

V. Darii S86 

E. Mew Glonceiler 299 
V. Weakley 640, 763 

Brewer Brick Co, c. Brewer 139, 638, 640 

Brewater v. DaTenport 266 

V. Hough 160, 840, 638 

V. SyrncoM 174, 468, 470, 608 

Brick I^byterian Chnrch r. New 

York 160, 261, 843, 741 

Bricker p. Pott* 622 

Bridge i-. Ford G02 

Bridge Co. r. Hoboken Co. 888 

Bridgeport r. Hou»atonic R. R. Co. 14^ 
440,469 
Bndgea, Ex partt 423 

r. ShallcroiB 130 

Bridgewater v. Plymouth 4T6 

Brien V. Williamaon 76, 100 

Brieawick p. Mayor, &o. of Brvni- 

wick 176 

Brig Aurora v. TJoiled Statea 140 

Brigga B. Geonria 08 

t>. Hnbbaid 440, 449, 466 

B. Johnwm Co. 225 

D. Whipple 200 

Brighatn b. Miller 86, 184 



by Google 



TABLE OF CA5SS OITED. 



Brigbt V. Boyd 


479 


Brown r. Maryland 


801, 602, 719, 725 


■. HcCulloch 


174. 616 


B. New York 


4S6 


Brishtmmn ■>. Bnstol 


742 


B. Parker 


460 




280,231 


r. People 


880 


Brimnier v. Boston 


. 848 


B.PBllt 


82 


Biinkmeyer ». ErnnSTille 


304 


V. Providence W. 4 B. R. R. Co. 706 


Brinton v. SeeTer. 


467 


V. Scofleld 


728 


Brishin o. Cleary 


782 


V. Smith 


623.630 


Briacoe v, Anketell 


362.444 


p. State 


86, 889, 881, 49* 


V. BMk of Kenmcky 10,20, 196, 108 


p. Storm 


479 


Bnrtol <,. Johnwn 


260,260 


0. Turner 


749 


0. New Chwler 


282,292 


v. Wilcox 


76 


o. Saperriwra, Ac. 


446 


e. Worcester 


696 


Britain t>, Kinnard 


608 


Browne d. ScoQeld 


728 


BritUh PlMe Manuf . Co. o 




BrownriUe v. Cook 


804,306 


BritUe p. People 


40 


242 


Britton V. Tony 




Bruffel p. Great Western R R Co. 338 


BroadbMt 0. Sbiu 


488 


Bramagim e. TiUinzhast 601 
Bruniog «. N. 0. Canal & Bankinit 


BnMdfoot'a Case 


366 






Co. 


666 


Brock ■>. Hiihea 


696 


Brans f. Crawlord 


366 


r. MilliBui 


691 


Brum wick n. Finney 


141 


Brockway u. Kinney 
Brodhead v. Milwaukee 


eo 




26a 


279,606 


V. Keelw 


772 


Brodnax ». Groom 


104 


Bryan, Ex parts 


S90 


BroU i>. Stale 


411 


V. CatiS^ 


385 


Bromage ». ProeMr 


663 


p. Page 


286 


'"f^j^rr 


151 




164 


615 


». Walker 


446 


BroMoa •>. Kiule MS, S60, SSI. 854 


Bryson v. Bry.on 


184,135 


w. Kewberry 


849,350 


V. CampbeU • 


134 


D. Wallace 


19 


Buchanan i>. Jones 


606 




548 


V. Litchfield 


269 


Brooker r. Coffin 


521,523 




511 


Kooklyn t. Brealin 


246 


0. Smith 


658,657 


Brooklyn £ Newtown R 


B. Co. V. 


Buckles i>. EUers 


82 


Coney Island R. H. Co. 


684 


Buckley v. N. T. 4 N. E. R. R Co. 718 


Brooklyn Central R. R. Co. 
lyn City R. R. Co. 


V. Brook- 


Bookmill V. Story 


644 


241,682.684 


Bndd «. Stale 


485 




BuddingtoD, Matter of 


420 




661, 602, 698 


Boell «. Ball 


268,628 


Biwkt r. Hyde 


^164 


Buffalo V. Holloway 


310 


p. Mobile School CammitaloacM 71 


V. Webster 


245, 247, 744 


Brotberton ir. People 


877 


Bnffklo, 4c. R. B. Co. v 


Ferris 506, 695 


Brow r. Uatheway 


686 


Buffalo 4 N. Y. R R. Co. t>. Brainerd 668 


Blower c. O'Brien 


783 


Buffalo & Niagara RR 


Co. e. Buffalo 714 


Brown. £r port* 


878, 877 


Bulger, In rs 


834 


v.Btmtty 


e49,600 


Bulkley i: CalUnan 


646 


B, Brown 


164 


f. H. Y. & H. H. R. 


R Co. 715, 717 




218 


Bull f. Ball 


622 


p;Cayaga.*c.RB.Co 


852,678,699 


B. Conroe 


474,484 




728,729 


B.Read 


140,141,146,203 




889.733 


Bnllock ... Cony 


2S^26» 


r. Depleuui 


680 


Dumgardner i>. Circuit Court 849 


V. ri^ld 


74 


Bum pas v. Taggart 


599 


t. FUitcbner 


144 


Bunn r. Gorgas 


866 


«, Fotler 


603 


V. People 


88 


t. Grorer 


78,763 


V. Hiker 


772 


V. HaatoD 


622 


Bnnton v. Woiley 


640 


>. Haywood 


*88, 484, 486 




I. Hilcbcodc 


849 


RCo. 


28, 267. 668 


>.Hon>toi) 


600 


Bur, Ex parte 


424 


v. Hnmniell 


887 


Burcb V. Newbury 


116 


r. Leitcb 


217 




614 


■.Lont 


761 


Bnrckhotler v. HcConnelliTiUe 22» 



b, Google 



TABLE OF CASES CITED. 



Burden n. Slein 
Burdcno d. Ampene 
Burdett d. Abbott 
Bunlick t>. Babcock 
Bureiu Co. V. R&ilrotd Co. 
Burford r. Wible 
Burgeu v. Clark 

17. Pue 83. 141, 1 

Burger, /n n 
Bargett v. Bargett 
Bni^hardt c. Tonwr 
Burke v. Elliott 

V. Mechanic!* Saving* Bank 
e. Superriwr* of Hooioe Co. 1! 

Burkett e. HcCar^ 1 

Barter "- Bute 

Burlingame v. BnrllDg»nM 6 

Btuiington r. Bnmgaraiwr S 

e. Gilbert 

K. Kellar 

V. Pntnam Ina. Co. 
Bnnnelster r. Howard 
Bumei V. Atchlaoa 
Burnet v. Sacramento 6 

Burnett, Ex parte 249, £ 

Burnhant v. Cheliea 

0. Common wealth 

u. MorrlMe; • J( 

Bumi, Bz parU 

V. Clarion Connty 2 

Burr t>. Carbondale 386, 

V. Roti 
Burrcl e. Aatociated Beform Cb. 
fiurrill V. Boalon 

B. Wert 
Burrltt V. New Raven 
Burrow* o. Bell 
Burton «. Kunlington 
Burt p. Brigham 

e. Morchanla' lu. Co. 

p. United SUtei 

V. Williami 11 

Burton e. Burton 

D. CliatlHnooga 
Buah v. Seaburr S' 

V. ShipmaD SS 

Buahel's Ca>e 

Bnihnell v. Belolt 14 

Biuhneira Case 
Buikirk d. Strickland 
Butler V. Board of Regmta 

V, Dunham 

V, Farm worth 

n. pHlmer 81B, 3C 

D. PennsylraniB Sf 

B. Porter 

V. Pultney 

B. Superriaora of Saginaw 11 

p. Toledo 
Butler'a Appeal 



X 



>weU 



Botti B. Swart wood 
Bayi B. Qillet[ne 
Bj«n V. Commonwealth 
Bjlerp. Aeber 



Cabell n. Cabell 
Cadwallader n. Hania 
Caswin b. Hancock 
Cahoon p. Commonwealth 
Cain V. Commlaalonen 
Cairo B. Brow 
Cairo, &c. R. R. Co. v. Sparta 

f. People 

>. Trout 
Calarenu Co. v. Brockway 
Calcote V. Stanton 
CaJder h. BuU 10, 10 

V. Knrbj 
Caldwell v. Alton 

B. Gale 

B. Juiticea of Burke 
Calhoun v. Fletcher 

r. McLendon 
Cal. Tel. Co. v. Alia TeL Co. 
Calking >. Baldwin 
Calkin* B. Chene)' 

->. Stole 

). Snmner 
Call V. Chadbonnie 

B. Hagger Sfil 

Callendar d. Har*h 
Callendar'i Case 
Calliaoo b. Iledrick 
CalTin B. Reed 
Calwell B. Boone 
Cambridge n. Lexington 
Camden & Amboy R. R. Co. 



2, 449, 461 
262.678 
Ea9,67a 
6M, OM 



Cameran v. SaperrlBon 


OSS 


Campau u. Detroit 


214,222 


Campbell b. ETan* 


448 


446.600 


V. Field! 


44 


n. Morria 


%493, G02 


B. Quinlin 


St 


B. Spottliwoode 


678 


B. State 


se. 402 


B. Union Bank 


127, 202, 212 


Carnhbell'i Cale 
Can^ Co. 0. R. R. Co. 


87, 104, 18S 


127 




619 


Cancerai v. People 


891, »4 


Cannon, In n 


23 


B. Brame 


69 


B. Hemphill 


177 


B. Mfttliea 


94, 96, 177 


B. New Orleana 


602 


Canton b. Nirt 


241 


Cantwelt b. Oweni 


68 




97 



b, Google 



TABLE OP CASKS CITED. 



Ckpe GInnleaii. Ac. Road v 


DeDDi*. aro 


Ciulfleld B. Buflock - 776 


Capen d. Foater 


767, 768, 776 


Cawley b. People 749 


CaMrton v. Harttn 


450 


Cayuga Bridge Co. v. tbgee 400 


CaplU. Export, 


879 


Cesrfoa. v. State 70 


Catdinn n. Page 


773 


Central, &c R. R. Co. v. People 179 
Central Branch U. P. R.B. Co. o. 


Caiey r. QUe* 
CargiU c. Power 
Catbton V. BicUord 


127, 202. 218 


216.865 


Atchiion, &c. R. R Co. 649 


24 


Cenctal Bridge Corp. b. Lowell 888, 652 


r. Goodwin'g Ei'ra 


115 


Central City Hone Railway Co. b. 

Fort Clark Horse Railway Co. 669 
Central Ohio R. B. Co. r. Holler 706 


r. Whitcher 


107 


Cariiile r. United SutM 


186, 187 


Cariton D. Peopfo 


622 


Central Park Exteoiion, Matter of 661 


761 


Central PUnk Road Co. v. Hannanun 177 


Carman v. SteubenrUIe ft 




Caotrml R R Co. b. Hetfleld 679, 690 


B.B. Co. 


676 


V. Rotkafellow 691 


Came p. Litchfield 


886 


B. State 840 


Carolhert ». Hurly 


462 


Centralia u. Scolt 811 


Oarpeoter o. Bailey 


661 


Chadboume v. New Caitle 29* 


B. Dane County 


408 


Chadwicke V. Moore 866 


,. Jenninm 


706 


Chagrin FallB, *«. Plank Boad Co. v. 


D.Landaff 


702. 708, 704 


Cane 678 




190, 228 


Chalker v. I*e» 444 


V. Oawego & Synetue R. R. Co. 678 




V. PeDmyUania 


828,465 


B. LyeU 217 


B. People 
V. SneUing 


897 


B. Sibley 138 


609 


Cbamberiain of Loudon o. Compton 213, 


H. Tarrant 


622 


247 


Carre. Georgia B.B. Co. 


837 


Chamber, b. Fiik 83 


r. Northern Libertiea 


266, 256, 310 


v- Satterlee 630 


f. St. Lonii 


241 


B. State 183 


CaiToil V. Olmitead't Lewee 


123 




B. Sute 


420 


Chance v. Marion Co. 70, 72 


e.SuLo<ii> 


256,262 


Chandler b. Maah 108, 606 


Canoo f. Blazer 


647 


Chapin B. Paper Works 490 


B. Canwn 


824,846 


Chapman v. Albany & Scbenecttdy 


ft Coleman 


694 


R. R Co. 684 


V. McPhetridga 


749. 780 


B. Calder 685 


GaittT p. B^onr 


32 


B. Gate* 696 


r. Itoir 


246,711 


B. Macon 311 


p. Dnbnqae 


263 


0. Horgui 498 


v. Walker 


504 


B. Smitli 59 


Carthage v. National Bank 


246 


Chappee c. Thomat 499 


Carton v. IlUnoii Cent R. R 


Co. 716. 738 


Chariton b. Barber 249 


Carathen d. Rawell 


773 


CharlB* Hirer Bridge e. Warren 


C.a«bonii B. People 


401 


Bridge 823. 476. 488, 607 


Caae b. l>ean 


460, 464, 644 


Charleiton v. Bet^amin 600 


V. Dun more 


217. 857 


Charleatown Branch R. R. Co. b. Mid- 


». New Orieani, tc. R. R. Co. CQ 


dleies eoe, 606 


». ReeTe 


61 


Chariton B. Alleghany City 673 


r. Rorabacker 


161 


V. Watton 664. 666 


V. State 


761 


ChsM B. Blodgett 24 


». Thnmpaon 


896 


V. Chaie 496 


B. Wildridge 


68 


B- Cheney 578 


""'i.te'S. 


120 


B. Fiah 162 


661 


B. Merrimao Bank 290 


CaM ... Dillon \i2, 183. 278, 282 


r. Miller 754 


Caaa County d. Johwon 


748 


B. People 377 


Caatellaw v. Gnilmnrtin 


69 






«2,523 


Chase'i Case 671 


Cate« B. Kellogg 


661 


Cheaney o. Hooser 140. 280, 606. 009 




728 


Cheever v. Shedd 254 


Catbcart p. RoUnMHl 


82 


B. WilNn 24 


Cailin B. HaU 


603 




B. Smith 


68 


Bridge Co. 488. 469. 400 


OtttellB Lowiy 


770 


Oieney v. Jonea 218 



b, Google 



TABLE OP GASES CITED. 



CherokM Nation v. Georgia 1, 

Cherokee Tob>cco. The 
Cheupecke, &c. Co. i: Hoard 
Ch(W4>e>ke & Ohio Cuul Co. t>. Bald- 
more & Ohio B. R. Co. 
Cheatnat v. Marah 



Chetinatwood v. Hood T4S 

Chetojnd v. Chetwrnd 427 

Chicago i;. Brophy StO 

c. Bartree 247 

v. Heaing 310 

V. I«t)gUla aio 

D Idmed 619, 622 

0. McCarthf 806 

n. McGinn 247 

V. McGiren 811 

V. O'Brennan SIO 

r. People 778 

p. Rob^ina 10, 304 

D. Rumpa 4S7 

D. Wtieeler 698 

Chicago. &c B. E. Co. B. Acklej- 738 

u. Adler 446 

e. Barrie 716 

V. Boone Co. 61& 

V. Haggert; 716 

V. lowii 14, 714, 787 

V. Joliet 244. 678, 686, 742 

V. Lake U2. 662, 663, 666, 669 

V. Mallory 756, 77B 

V. Oconto 296 

e. People 26S, 716. 788 
V. Smitli 202, 064 
V. Stein 676 
B, Triplett 717 

Cliictgo, BuriiDglon, &Q. R. K. Co. v. 

Wllwn 671 

Chicago Life Ins. Co. r. Auditor 848 

Chicago Packing, &c. Co. v. Chicago 242, 
219,348 
Chidiey r. Canton 256, 2M, 308 

Child V. BoitoD 266 

Child's Case 425 

ChildreEf k. Mavor 246 

Child! V. Shower 222. 480 

Chilei V. Drake 177 

V. Monroe 177 

Chilrere v. People 246, 614, 732 

Chinigu7 v. People 272 

Chiiholni V. Georgia 1, 7, 02 

f. Montgomerj 23i) 
Chriiman c Bruce 776 
Chriit Church v. Philadelphia 840,341, 

845, 474 
Chriitlan Union v. YounC 153 

Christian c. Commonwealth ifH 

Chriatmaa i>. Ruaiell 24 

Chriat; e CommiuJODera 885 

ChuinaKro p. Potia 138 

Church V. Chapio 60 

B. Rowcll 764 

Chute n. Winegar 271 

Qndnnati t>. Bryaon 245 

v. BQckingham 246 



ancinnatl n. Rkw BM 

CiDcinnBti, &c. B. a Co. D. Carthage S87 

D. Cook 716 

r. CommiMionert of Clinton Co. 110 
Oncinnati College c. Btate 638 

QndiuiBd Gaiette Co. o. 'HniberUke 663, 
664,666 
ClncinnaU Gaa Light Co. ir. State 246, 
614,619,620 
CindnnaCi HealEli Au'n v. Roeeothal 22 
Ciico V. Boberti 724, 720 

CitiMlu' Ini. Co. V. Paraona 11 

City Council v. Benjamin 726 

v. Pepper 240 

Cit; Na^onal Bank v. Hahan 20 

Gaflin v. Hopkinlon 2^ 275 

Clapp D. Cedar Connty 272, 27S 

r. Ely 116 

Clark, ^xnirfa 423,762 

Matter of 22, 23 

D. Billlmore 467 
r. Binnejr 661 

E. Boanl of Directora 484 
tr. Bridge I'roprietora 2S2 
p. Buclianan 784 
V. Clark 132, 134, 263, 846, 446, 467, 

496 
751 



768 

D. Crane 90 

c. DaTCnport 184, 612 

p. T>e> Moinei 288, 2S6, 270, 272 

D. Ellii 212 

17. Holme* 602, 603 

p. Jack 141 

V. JaneiTille 142, 189. 100, 273 

0. Jeffer«niTille, &c. R. K. Co. 64 

IF. Lamb 608 

c. LeCren 248.247 

t>. Martin 846, 866 

t>. McCreaiy 448 

r. McRenzie 784 

V. Miller 221, 698 

c. MoUjaeaui 668 

P. People 80, 218, 220, 300 



). Bohini 



758, 764, 767, 766, 780 



V. School Director* 

tr. State S24 

B. Washington 261 

V. White 
Clark's Case 
Clark's Adm'r b. Hannibal i 

Joseph R R. Co. 
Clarke r. Irwin 

V. Jack 

D. Rochester 

B. Smith 

V. Van Suriar 
Claaon d. Milwaukee 
CUy D. Smith 
aa)>ton B. Harris 
Ck«g B. Lafler 



by Google 



TABLE OF OA£ES CITBD. 



Clegff r. Scliool Dytriot 296 

ClMnam v. Pullawut 016 

Oeluid V. Porter 7T8 

Clem r. SUta 396 

CiMiieDt r. Coond 699 

Cleinrat e. HmtOioii 416 

OereUud r, Rogerf 602 

Oittoa V. Cook 777 

CUiib>nc.CeduB«^(l«,te.B.B.Co. 086 

v. Dnper 176 

w. RnKlebracbt S4 

V. PhiUip* 247 

CUppiDgern. Hepbansh 107 

CkMlfelier b. Stale 15 

CloDgh 0. Unit; 608 

Coatei K. Muse 19 

CoBlMTille Oaa Co. v. Cbecter Co. 99 

Coat! D. New York 161, 246, 261, 741 

Cobbett V. HadaoD 426 

Cobbetf I Case 426 

CobuTD V. EUenwood 240 

V. BarT«7 82 

Cochnw D. Dwcj 354 

D. Jonet 749 

■>. Van Sariajr .107, 122, 126, 202, 206 

Cachraii'i Can 416 

Cock r. Weatherbj 622 

Cockagne p. Hodgkueon 627 

Cocke V. Hake; 762 

Cockram b. State 420 

Coe r. ScholU T22, 741 

CoflD r. CoOn 162, 562 

r. Ricll S49 

V. State SS4 

P. Tncy 40a 

CoSnuui r. Bank irf Kentnckr S60 

V. Keighttey 279 

Coben c. BarraU 170 

u. Hoir 110 

v. Wiiftht 821 

Cobena ». Virginia 16, IT, Ki 

CiAB.ExpaTi» 618 

Colbani e. Woodirwth 60 

Colbir r. Jacktoii 707 

Coldwater v. Tucker 263 

Cote V. Bedfbid 281 

v-Cmt 124 

p. H«diiw 



676 



n WilM» 
Cctemaa v. Ballandi 
Cote* e. HadiaoD Co. 
CoBer, Ex parte 
Collaiuer d. Page 
Collector b. Da/ 
Cdler V. MerriU 
Collin- V. Frierxm 
CoUiiu B. Collini 

r. Hendenoa 

IT. PhUadelphU 
Oolman b. Holme* 

f . Tealer 
Coloma V. Earea 
C0I0D7 r. Doblin 
CaUKErea 



Coltin u. Ellii 
Colton V. Roui 
Columbia v. Gneit 
Columbia Co. f. DaTidion 



o. Peoria Bridge Co. 
Colwell B. Chamberlin U 

Comer b. Fulaom 2i 

Commercial Bank v. lola 268, OC 

Commercial Bank of Natchei r. Stats 3£ 
CommiBiionen, &c. v. Aspinwall 142, 27 
t>. Bearu 21 

V. Beckwlth 61 

V. Boirle ffi 

t>. Cox 21 

r. Dackett 266, 304, 3C 

B. Gm Co. 24 

0. Holyoke Water PowerCo. «0,7] 
E. Martin 3C 

E. Uighela 2C 

B. Morriion 6C 

V. Ketaon B] 

V. Pidge 728, 7! 

V. fieabrook ' 6( 

E. Wallace 14 

p. Wither* 7i 

CommiisioaerBofKeiulagtODD. Phila- 
delphia 2fi 
CommiMiooen of Rerenue 0. State 2E 
Commonwealth b. Alderman 4C 
D. Alger TOB, 740, 74 
D. Andrew! IE 
B. Anthea 3t 
V. Archer 81 
B. Auatin 41 
V. Atbi i^ 



a. Blanding GiO, 6 
g. Blood 

IT. Bonner 367, 6 

;. Bowden 4< 

t>. Breed 668, 7: 

r. Brenuan 3 

!<. Bricbett 4 

r. Brooks 2' 

D. Byrne 4: 

D. Chapin 648, 7 

n. CharlettowD 71 
f. Clap 624, 641, 6 
D. CUpp 211,212,719,7! 

B. Clary 1. 

B. Claly 7: 

B. Colton 7: 

B. Commluionen, Ac 4- 

B. Cook 4 
B. Oonnty CommiadoDen 4B2, 7 

D. Coyningbam 2 

B. Clotty 8 



by Google 



TABLE OF CASES CITED. 



ComrooDweallh o. Cnllen 




SS8 




an, 311 


r. CulUm 




16a 


B. MeClOikey 


201 


e. Cummiog* 




895 


B. McCluley 


780 


». Curiu 888 


884, 


388,727 


B. MeComba 


760, 777 


». D>Lley 




SOI 


B. McHale 


771, 776 


cDan* 




877 


o. McUne 


608 


D. Deui 




146 


B. MuWiiliama 


189, 142, 146 


B. Dor«e7 




380 


B.Hec»er 


787 


0. Drewr^ 




176 


B. Mitchell 


883 


V. Dnuie 




444,471 


B. Moore 


302. 218. 613 


v. Eutern B. R. Ca 




717 


B. Morey 


866 


-.Eddj 




877 




S87.886 


V. Emery 




609 


v. Morris 


644 


17. Emmmger 




784,788 


V. Mullen 


sea 


V. Erie B. B. Co. 




602 


B. Myers 


870 


0. Erie & Northeut E. E. Co. 334, 


V. Neebit 


690 


241 


678 


677, 679 


V. Me<r Bedford Btidg* 


868 


E. Brnz Co. 




8S0 


p. Newbuiyport 


332,266 


V. FeatltertUiw 




6S6 


B.Nichola 


887,661 


D. FeUe 




401 


>>. Odell 


644 


c. Fisher 




eeo,fl98 


B.Olds 


401 


D. Freaericlu 




148 


B. Painter 


141 






246 


V. Patch 241, 943, 247, 722 




887 


V. Patlon 


164 




335 


B. Penn. Canal Co. 


662, 71^ 714 


«. Germuiia L. I. Co. 




618 


V. Pittsburg 


286 


O.GoddBTd 




400 


B. Pltttbu^, 4c E. B. Co. 489, 662 


». Onen 


84, ITS, 780 


o. Pomeroy 


212 


B. H»II 




28.830 


t>. Porter 


807,411 


B. Hamilton M«nuf. Co 




482,746 


V. Potts 


812, 214 


B. Hirman 




886 


V. Putnam 


498 


B. Hmman 




207,226 


B. Randall 


417 


B. Hartnett 




04 


V. Reed 


600 


f. Hbb 




690,726 


V. Richards 


3B9 


f. HawM 




23 


B. Richter 


672 






899 


::rf 


403 


B. Hippie 




108 


897 


V. Hitching* 
V. Holbrook 




36,212 


B. Roxbnry 


227 




722 


B.Ryan 


609 


D. Holder 




162 


B. Sa Tings Bank 


644 


B. Holt 




882 


r. Scott 


887 


17. Uow« 




730 


V. Semmes 


878 


B. Hoiey 




771 


B. Snelling 


675 


V. Hunt 




32 


B. Stodder 246 


246, 727, 744 


V. Hyneoian 




726 


B. Stonell 


401 


B. Intoiicating Liquori 




718, 720 




868 


B. Jeaniielie 




720 


B. Taylor 


383,886 


V. Jones 111 


121 


408,786 


B. Tewksbury 


708,740 


B. Judge* of Qtwrter Sewona 141 


0. Towlea 


22 


B. Kendall 




720 


c. Tuck 


400 


u. Kimball 212, 877. 445. 471 




365 


D. KnaRi 


384 


3W7, 405 


V. Uprichard 
B.-v;nTnyl 


162 




68e 


666,686 


S97 


B. Knn»lu>n 




82 


B. Walte 


741 


V. Lench 




32,786 


B. Walter 


749 


t>. Leech 




169 


B. WebitOT 


408 


B. Little 




609 


B. White 


162 


B. Locke 




139 


V. Whitney 


607 


:;» 




32 


B. Wilkins 


246 




648 


B. Wilkinson 


678 


B. Lottery Heketi 




369 


B. WilJiams 


462 


e.LouiiTiUe.*c. B.a. Co. 


727 


B. Woelpcr 


761 


e. HanD 




834 


B. Wolf 


6B0 


V. MarihaU 


444 


468,471 


B.Wood 


899 


». Matthews 




216 


V. Worcester 


348,127 



b, Google 



TABLE OF CASEa CITED. 



CMDraonwettlih Bank b. Qrifflth 
CoDoord V. B<MC«weD 2 

n. FortBtnonth 8aTiDg« B«nk 2 
CoDcoid R. R. Co. B. Gre«ler 6 

Cone D- Cotton 6 

V. Hartford 6^, 631, 7 

Code/ v. Oven 4 

Coafitc&tioa Cuei 4 

CoDgdoa n. Norwich 3 

Cooker ■>' Hart 848, 361, 852, 8 

Cohd. H. L. Ins. Co. d. Cron 
Conn. KiT. R.B. Co. v. CommiuionnB 6 
ConneU c. CoDDell 4 

Connelly b. Sut« S 

Codoer, Ex porta 1 

e. EUiot 

t>. New York 173, S 

Connolly v. Boeton 7 

Connor n. Fulaom 2 

Connon p. People S 

Conrad B. Ithaca S 

Coaeerraton of Hirer Tone p. Aih 2 
Coniolidatcd Channel Co. b. Ballroad 
Co. 



CoDwaT D. Cable 

B. Taylor's Ex'r 

B. Wa*erly 
Cflnwell B. Emrie 

B. O'Brien 
Cook B. Bnrlinglon 

B. Gmy 

B, Gregg 

e. HiU 

T. Hofit 

B. Fenoiyliania 

B. Slocnm 

B. Soatb Park Com'n 

B. Vimont 
Cooley V. Board of Waideiu 

e. Fituerald 

B. Freenolden 
CooUdge B. Gutfaiio 

B. WiUiams 
Coomlw B. Roae 
CoDoey V. Hartland 
Cooper, Be 

Ex parte 

F.lUrter 

B. Board of Work* 

B. Greeley 
p. Stone 



B. Telfair 10 

B. Williama 
Coo(ier'( Caie 
Coow Hirer Steamboat Co. v. 

day 
Cope* B. Charleaton 
Copfi B. Henniker 
CeriMU B. Bradley 



CorUn V. Hill 




4M 


Corfield B. Coryell 


22, 492, 602 


Coriell B. Ham 




348 


CorUis, In n 




749 


Matter of 




780 


B. CofUh 




98 


Cornell d. State 




260,404 


Comet B. Wintun 




16,694 


Coming b. Greene 
B. McCulloDgh 




141 




340 


ConiKan b. Gage 




247 


CorwiQ B. Controller 




186 


B.HeirYork&£rieR.B.Co 
Cory V. Carter 


4S,4M 


Coatar b. Bmih 




341 


Cotter B. New Jeney R. B. Co. 


693 


Cotten B. GUia 




78 




of Leon 143, 






302,218 


V. PbilliM 

Cnoch B. McKee 




748 




440 


Cougot B. New Orleani 




744 


Coultorrille v. Gillen 




241 


Cooncil Bluff! B. Kanui 


City 


&c 


R. R. Co, 




788 




334 


Connty Conrt d. Griiwold 




661 


County Treasurer b. Dike 




139 


Courvoiiier, Trial of 




409 


Cooaina v. Sute 




618 


Coutant V. People 


80,83.218 


Cover B. Bay town 




276 


Corineton n. Bryant 

u. East Sl Louia 




804 


183 


184,241 


V. Soutligate 473, 609, 611, 621 


Covington St. B. Co. b. Coriugto 


687,688 


Cowan B. McCalcbeu 




462 


B. Milhoum 




686 


Coward v. Weliingloa 




686 


Cowen V. West Troy 




241 


Cowgill B. Long 




470 


Cowlea B. HarU 




ei 


Coi B. Bunker 




623 


B. ColeridgB 




388 


B.Co« 




498 


e. Lee 




678 


B.Loniaraie,4c.B.B.Co. 


267,670 


B. State 




164 


Coxe B. Martin 




S66 


Cozhead c. Richanla 




627 


Coyner r. Lynde 




494 


Crat\ B. State Bank 




82 


Craig V. Burnett 




213,244 






522 






689 


B. Firit Preabytertan aurcJi 


711 


B. Kline 




T80 


V. Miarauri 




20 


B. Philadelphia 




630 


B. Hochealer City & Brighto 


B. 


B. Co. 




679,683 


Craighead v. Martin 




606 


Crandall, Petiliou of 




426 



b, Google 



TABLE or CASES CrEED. 



Craadall p. Nevkda 


491,602 


Coitia V. State 8T0 


a. SMte 


22.4B2 


... Whipple 209. 609, 611, 604 




138, 136, 6ft! 


V. Whitney 849, 861 


r. W.teri 


662 


Cuniis V. Gibba 24 


CnuuoQ II. Smith 


11 


Cuahman n. Smith 691 


CraveD v. Winter 


443 


Cniic V. Douglas 360, 444 


Cr»w D. Tolono 


619 


Cutlip V. Sherifl 177. 180 


Crawford u. DeUwire 2SS 


878, 874, 888 


Cutta D. Hardee 3GS 


u. Dunbar 


749,780 


Cuyler v. Rocbeater 493 


B. Wilson 


39 


CypreM Pond Draining Co, v. Hooper 610. 


Crawfordaville », Haya 


226 


CrBW»haiir f. Roibur; 


262 




Creal V. Keokok 


262.678 




Creue u. Babcock 


140 


D. 


Creevy «. Can- 


576 




Creigliton v. Piper 


749 




0. San Francitoo 


294 


V. State 749 


Crenaliaw v. Slale Eiver Co 


202.664 


Daily V. Swope 684, 642 


Creole v. Cliicago 
Crittenden v. WLiite 


622 


Daily Po.t Co, v. McArthur 566 


11 


Dakio i;, Hudson 602 


Cromarty v. Boston 


811 


Daiby V. Wol/ 229 


Cronan ir. Colling 


66 


Dale V. Ir-in 764, 766. 768. 778 


Crone v. AngeU 


622 


0. Medcalf 466, 471 


Cronin v. People 


246,247 


p. State 397 


Cronise v. Croniie 


133,346 


D, The Goremor 340, 473 


CTOBhy D. Hanover 


662 


Dalrymple a. Mead 728 


"■ viCren 


6t0, B41 




247, 742 


Damour v. Lyons City 267 


CroMB. Hopkin. 
Croawett'i Caae 


220 


Duia-s Caae 893, 607 


632,633 


Daocaater v. Hewson 647 


Crouch V. HaU 


82 


Dane County u. Dunoingr 606 


Crow V. Bowlby 


60 


Daniel Ball. The 780 


279, 281. 608. 


Daniels o. Clegs 64 
Dank* », Quaekenbnah 349 




611 


V. Randell 


n 


Danville p. Face 64. 202, 207, 444, 456, 


Crowley v. Copley 


034,734 


46^ 


Croiler o. Cudney 
Crulkahank* v. Charleaton 


874 


Darcy v. Allain 844, 487 


436 


Dargan b. Mobile 304 

DarUng B, Gunn 016 

u. Rogers 164 


Crump V. Morgan 


36 


Cubbiaon i.. MeCreary 


691 


Cubreth, Ex porta 


23 


Darlington b. New York 294 
B, Unitpd Slates 661 


Cumberland r. Willison 


267 


Cumberland, ic. B. H. Co. 


p. Conn^ 


Darrington e, SUle Bank of Ala- 


Court 


196.466 


bama 20 


Cummerford «. McAroy 


661 


Dartt B, People 244 


Gumming y. PoUce Jury 


619 


DaH V. Houston 336, 388 


Cumminga v. Asb 


660 


Dartmouth College v. Woodward 160, 281, 


V. Mlesourl 42. 818. 821. 823, 32* 


267. 281. 307, 334, 837, 846, 482, 710 


V. National Back 


612,615 


Dash B. Van Sleek 76, 111, 114, 323. 


r. Petera 


661 


446,456 


Conninsham d. Brown 
r. Stale 


646 


DaTenport u. Bamett 60 
B, Mayor 749 


877 


Capp r. Seneca Co. 


600.696 


V. Stevenaon 266 


Currau t>. Arkaoiaa 


20 


V. Young 126 


c Shattuck 


eM.6»7 


Davenport, &c. Co, v. DavenpoTt 241 
DavidBonB.Boslon&MaineE,R,Co. 672 


Currier v. Hariette A Cindnoati R. H. 


Co. 


656 


V. Lawrence 461 


Curry r. Walter 


664 


B. New Orleaot 16,485,486,622,638. 


Curryer v. Merrill 
Cottia ». Curtia 


226 


784 


622 


Davies, Tn re 412 


V. Glbb. 


600 


B. MeKeeby 78, 438, 446 


B. Gill 


607 


B. Morgan 243 


tl. Hubbard 


886 


ITAurilliera v. De Livaudria 497 


D. UaTitt 


86T. 44^ 463 


Davis E. Bank of Fulton 172 


... MoMey . 




P-Boget 680 



b, Google 



TABLB OF CASES CITSD. 



D»Tlt p. Brown 


621 




468 


>. Dabaqoo 


623 


Delegal v. Highlej 


654 


r. DuDoui 


644 


Dell. V. Kennedy 


767 


p. H™Sreok 


S8S,886 


Deloch p. Itogen 


780 


772 




310 


e. McN«es 


548 


Delphi 0. Erani 
Do Mill e. Lockwood 


254,656 




485 


441 




440 


De Moaa p. Newton 


461 


v. Hew Tork 


254 
262,253 


Dempier v. People 
Den p. BiAton 


800 

678 


r. O'FcnaU 


44S 


v. Downam 


401 


B.R««d 


260 


V. Duboi* 


71 




59B 


p. »cheack 


71 


V. Stete 186, ITS, 170. IBS. 207. 212, 


Denh»n p. Holcnun 


178 




889.462 


Deniwn p. Hyde 


GOO 


t>. Stmt« Buk 


124, 450, 465 


Dennett, Petitioner 


188 


e. Wood 


61 


Dmning v. Corwin 


602 


0. WoolDOIIKll 


177 


>enDU p. State 


766 


DmTii'i Le»e« v PoweU 


480 


Denniaon School Diatnet p. Fadden 226 


Dbtimki p. Dudmii 


MB 


Denny v. Mattoon 


129, 478 




124,484 


V. Reynold! 


60 


V. New OHeuii 


683 


p. While 


217 


D.«kiD. r. Pftolet 


646 


Denton p. Jackson 


210,268,208 


F. Rokeby 


546 


Dentzel v. Waldie 


466 


Dawioii v. Anient 


257 


Denver v. Capelli 


265 


p. Coffmin 


SS 




V. Doiion 


661 


B.Trn.UeaofW. &E 


Canal 34, 731. 


D. ShBTer 


202 




783 


r. State 


827 


Derby p. Derby 




Oaf r. Gkllnp 


17 


Derby Tumpike Co. p. Parka 202 


p. Qicen 


727 


Deitnond p. Dnnn 


154 


p. Jonea 


754 


Deinoyer c Jorima 


442 


>. Keat 


777 


Detniold d. Drake 


216, 21T 


p. HunKm 


65 


Detroit p. Beckman 


256,266 


p. SaradBB 


608 


e. BUckeby 


304 


B. Sletooa 


164 


V. Corey 


804,306 


Dajton p. Qnigtar 


247 


e. UartiD 


224 


D.ytoii Mining Co. p. SemweU Mi 


p. Flank Road Co. 


888. 830. 714 




454.488 


Detroit Free Frew r. McArthnp ' " 666 


p.Gleuoa 


472.640 


Dettenhoferp. State 


408 


p. SnlliTSD S. B. Co. 


602, e»s 


De Varalsne p. Fox 
DcTin p. Scott 


608 


DcM) of St. AMph, Triml oT 


409 


720 




Devlin p. Brady 


167 


Hatter of 


663.066 


Devon Witchea, Caae of 


882 


Dnifaom p. BoatOD, a & M. B. R. Co. 267, 


De VoM V. Richmond 


270 




704.705 


Devoy p. New Tork 


78,232 


DntOD p. Folk Co. 


702, 701 


Devries p. ConkUn 


74 


De Ben p. Genud 


2*3 


V. Phillip. 


887 


Dchkna p. Barker 


727 


Dewarr. Peopfe 


169 


Delwkp.OhH>LifeIi>a.«TmtCo. 160 


86 


l>e Camp p. Erdand 


228 


Dewey d. Detroit 


806 


Decatnr v. Fiaher 


806 




481 


Dwalnr Co. p. Homphreyi 


654 


ne Woir p. Rabaod 


10 


De Chaaielliuc p. F^icbild 


67,110,116. 


Dial p. Bolter 


686 




130 


)ibdin p. Swan 


662 


Decorah p. Dnnttro 


246 


Ditk V. McUurin 


606 


Da Cofdo»« p. GalTBitoii 


467 


Dickena'a Com 


412 


IMhun p. Natlck 


416 




709,708 


DMdt r. Sanbom 


622 


Dickey p. Hurlbort 


779 


Dtnnp.Reid 


70 


p.'Reed 


121 




831 


p. TenniBon 


868,698 


De GnrfTn. SC Pad, te. B. B. Co. S83 


Dickin»on r. Bayea 


00 


De Jametle v. Havnea 


IBH 


Dick* V. Hatch 


403 


IV Kraft u. Btmej 


424 


Dickaon p. Dickion 


188,153 




480 


p.P0ople 


749 



b, Google 



TABLE OF 0A8EB C1T3D. 



Dkflendorf E>. Ref. Cal. Church £78 


DongUs Co. r. Botrei 


sn 


l>ikemitn n. Dikeniui 


S54. 86G 


UoDglaas r. Pike Co. 


20. IMS 


UilLinl V. CoUini 


526 




280,2^ 


JMlUDgham v. Soa* 


2S9,6I6 


V. Turnpike Co. 


678 


V. State 


382 


Dore V. School District 


484 




Dover e. Portsmouth Bridga 


731 


tion Canil 


506, 60Q, GIO 




169 


Dingle? v. Boaton 


eeLee2 


B. Norris SOS, 218, 221 


Dlihon V. Smith 2S7, T69. 773, 777, 7S8. 


Dow's Caae 


23 




7SG 


Dowdell D. Slate 


183 


Directors, &c. v. Barton 


226 


Bowling D. State 


330 


Directon of the Poorn. Schotd Direc- 


Dowlin^s Caae 


891 


tor* 


60S 


DowuinR II. Porter 


870 


District Attornef ,'ils 


748 


P.Wilson 






Doyle r. Continental Ins. Co. 
r. Hallam 
V. O'Doherty 


224 
69 
646 


DItson V. Ditson 


4ft7, 408,501 


Dively ■>. Cedar Fall* 


289, 270, 508 


Drwnage of I^ids, Matter of 


681 




164 


Draining Co. Case 


933,686 


DiTiifon or Howard Co. 


169, 177, 230 


Drake b. Gilmore 


456 


Dixon V. Baker 


267 


«. Phil. *<■. R. a. Co 


718 


D. Harmelee 


409 


Drehman b. Siifrl 818, 820, 868, 446 




Drenoan v. People 


M 


V. Slate 


401 


Drew B. DftTis 


644,646 


Dob^na B. Wen don 


779, T8H 


Diittr SnodgmH 


227 


Dodd V. Thoma* 


437 




tmd 


Dodge B. Co«n 


21 


Dniliner v. State 


761 






62S 


t.. Gridley 


183 


Drylujs v. Dridges 


88 


V. Woolaey 16. «, 150, S40 




287 


Doe .-. Beebe 


660 


Dubois V. McLean 


136 


v. Braden 


16 


Dubaqne Co. v. R. R. Co. 


221, 2-8 


V. DouBlw* 


36, 123, 202 


Ducat r. CbicKgo 


22 


V. McQuilkia 


646 


Ducliess of Kingston's Cat* 


ftl 


Dole V. Lyon 


661 


Dudley v. Hayhew 


493 




644 


Juffy V. HobioD 


599 


Dorainiok v. Bowdoln 


136 


Dutian R. HolliDi 


6.3 


Donahoe b. Richardt 


227,682 


Duke e. Rome 


Sfi6 


X>onahue t>. WIU Co. 


836 


B. Ashbee 


778 


Done D. People 


tm 


Dolany's Lessee r. Tilghman 


464,406 


Donklef. Eohn 


502 


Dunbar o. San Francisco 


661 


Donnnlier-a Case 


678, 679 


Dnncan n. Bamelt 


SGI 


Don D ell B. State 


734 


B. Thwalle. 664, 666, 674 


Donnelly c. State 


389 


Doncomhe.-. Dnniell 


639 




294 


D. Ptindle 


163, 17« 


254 


Dunden b. Snodgrua 


467 


Dure D. Milwaukee 


254 


Dunham u. Chicago 


640 


Dorgnn B. Boston 


61Q 


B. Hyde Park 


S63 


Dorian d. Eait Brandjwlne, 


Ac. It. R. 


B. Powers 


546 


Co. ' 


704 


r. Rochester SS4, 243, 246, 248 


Dorlin B. Shearer 


680 


Dnnlap t>. Glidd«n 


646 


Dorr. Ex parte 


422, 424 




627 


Dorrance Street, Matter ot 


Til 


Dunn V. Adams 


»3 


Doraey, Matter ot 


78 


e. Burleigh 


493 


V. Dorsey 


116. 486, 4U7 


D. City CoDDcU 


671 


t. Gilbert 


124 


B. Sargent 


448 


Doney's Appeal 


177. 179 


B. State 


889 


Donit K. Lockwood 


607 


V. Winten 


635 


D.«» «. Commonwealth 


307 


Dunne v. Peopla 
IlunnoTan v. Green 


12 


Dotliage H. Stuart 


m 


209,748 


Dougtierty i-. Commonwealth 800 


DuPageCo-n-Jeoks 


77 


Doughty B. Hiipe 


98,498 


Dnpy B. Wickwira 


777,778 


V. Somerville t Eaiteni R. H. 


114 


Co. 


704 


Durach'a Appeal 239. SU, 638 


Douglai V. FTNholden 


70 


Durant u. Essex Co. 


68 



b, Google 



TABLE OF CASES CITBD. 



Dsnat V. EanSbiait 


«i,es2 




679 


■.People 


88» 


EgyptiiB LevM Co. V. Hwdin 


619, 684. 


Durham c. Lewiatown UG, W2. 486 




784 




175,486 


Ehlen E. Stoeckk 


437 




T8H 




066 


DuTGi^'i Heln b. SalMr 


182 


Eimer v. Richarda 


69 


Dwjer r. Goran 


69 


Eilel V. Stale 


154,190 


DTCkuan a. New ToA 


608 


Elam V. Badger 


62« 


Djrer s. B*; ne 


70 


Elbln B. Wllion 


77« 


>. Horm 


628 


Elder D. BuDM 


728 


V. Sum 


IBS 


r. Reel 


407 


■L TwcalooM Bridga Co. 


143,490 


Eliien r. StoecUe 


437 






Eldridge, Hatter of 


413 






V. Kuehl 


460.646 






V. Smith 


651,668 


E. 




Election Law, Hatter of 


772 






Elgin «. Eaton 


263 


K.vin p. Bknb 


80 


0. Kimball 


267 


Eamei c. Whitt^ier 


686 


E laion D. Coleman 


748 




164 


E ijah V. SUte 


401 


V. QranI 


40H 


E k Point V. VMgn 


241 


r>. mcken 


SBS 


E liot V. AiUbury 


528 


Bulej o. HorM 


627 




Emod d. Sum 


218 


Co. 


882 


Eut ft Wdt lodU Dock, ftc Co. ■>. 


B. People 


404 


Gatike 


sue 


0. PhiUdelphia 


267 


But Bra>d7«liie, Ac fi. R. Co. f . 


E>. Wohlfntm 


49S 


K«i»ck 


702 


ElIU p. Jonea 


849 


EMt Hartfoid r. Hartford Bridge Co. 261. 


V. Pacific R. B. Co. 


666 




296,S3fl 


D. SUIB 


48S 


But KiDgtton V. Towlo 


456 


EHjgon, Ez poJie 


789 


But Lincoln o. Darenport 


271 


Elmendorf o. Carmlchael 


119 


Butman b. HcAlpin 


]7n 


V. New Ywk 


93 


r. Meredith 266,26,296.808 


r. Taylor 


IB 


Eart Oaklaad n. SkitueT 


288,270 


Blmwood D. Marcy 


27,270 




816 


Elae 0. Smith 


869 


Bait Saginaw Salt Mannf. Co. ■>. 


Elwell V. Shaw 


644,646 


Ea«t Saginaw 3», Mi 


345,474 


Ely D. Holton 


467 


But St. Loni* V. MuweU 


188 


A Niagara Co. 


294,743 




411 


T.. Thompion 212 
EmbDTy B. d^oer 1ST, 310, 317 


222.420 


a. W«bnmg 


260,614 


667,671 


v. Witli 


287 


Emerick ■-. Harria 


607 


Eaatem R. R. Co. d. Botton 


842 


Emeraon r. Atwater 


68.66 




840 


Emery v. Gu Co. 


619 


Baton, Hatltr of 


426,426 


u. Lowell 


269 


f. Boiton, ftc R. B. Co. 661 


608, 672, 


B. M«ri»»llto 


270 


flT6, 676, 706 


Emery'' Cwe 


163,381 


Bdwl* r. 6uta 


786 


Empire City Bank, Matter of 


•498,600 


■>. Suanton 


657 


Emporia ». Soden 
EncVing c. Simmoni 


891 


Eckhart r. Bute 


212, 214 


87 


Eddingi o. Seabrook 


872, 673 


Enfield Toll Bridge Ca v. Hartford & 


Bdd7 r. Capron 


187 


N. H. R. R. Co. 


341 




662 


Engte f. Shnrtz 


446,471 


Bd^lr D. Swain 


6S2 


Engiish V. Chicot Co. 


236 




604 


B. New Haren, &e. Co. 


479 


Bdgewood R R. Co.'i Appeal 


667,062 


o. Oliver 


163 


Edmondt t,. BanbQtT 


757 


Euawortfa b. Albln 164 


767, 768 


EdMn r. Edion 


23 


Enlinck B. CarriDgton 


868.374 


Edward, r. EIHott 


26 




B.J.ger. 


3SB 


B. New Jersey 


602 


«.J»ni« 


93 




160 


e. K»n«7 340, 360 


851,366 


Erie * N. E. R. R. Co. b. Oaej 


127 




125, 127 


Erlinger v. Booeau 141 


148, 178 


88 


Emit B. Knnkle 


629 


Bdi-.P«,pl. 


213, 215 


Errine'a Appeal 110,136,127,209.482,188 



b, Google 



TASUt OF CABEB CITED. 



Einion r. State 

Kuei Co. V. Padflc UiUa 

Kuez Witches, Mfttter of 

Eile V. Strong 

Eitep V. Hntcbm&a 134, 

Ei^ V. WeiUniniUr 

Elheridge r. Oibom 

Biutll D. Parker 

Erwii V. BrowD 

V. MontgomeiT 323, 

V. Populn* 

H. Sharpe 
Ennsville, &c. H. R. Co. d, Dick 
Evening Nevri e. Tryon 
Everett d. Council Blufli 
Evei^reen Cemetery d. New H&Ten 
Eriaton u. Cruner 
Ewing B. lliley 



V. Oirille 




'lOO 






226 


EicbangeBankr.Hine* 


212 


812, 616 


Byre ». Jacob 




218 


Enkiel B. DiuD 




68 


F. 






Fwey B. Fuller 




603,604 


Fair p. PhiUdelphia 




256 


FalTbauIt V. Misener 




88 


Fain^hild u. Adams 




636,548 


Fairfield t>, GaUatin 




1» 


I.. McNary 
V. HatcliSe 




W 




610 


Fairhnnt r. Le-i. 




416 


Fainnan v. Ite. 




636.664 


FalcoDer r, CampbeU 




20,328 






183 


Falei ». Wadsworth 




452 


Pall B. H««lrigg 




64,81 


FaWey, /n re 




168,426 






7S3 


Farley v. Done 




360 


Fartnen' & MechinicB' 


Bank 0. 


Butchera' & Drorers' Bank 


270, 271 


Farmets' & Mecbanici' 


B«*_ - ... 



Smith 88, 318, S 

Farnej p. Towle 
Fanuworth u. Stom G 

V. Vance i 

Farnsworth Co. v. Lisbon 189, 6 
Farnum v. Concotil 3 

Farr v. Rasco G 

V. Sherman 

Farrington d. Tenneiaee 840, 6 
Fausler u. Psraoni 7 

Fawcett v. Charles 6 

v. Fowlisi 603, 604 

t>. Tork &, North MIdluid R. R. 

Co. 716, 716 

Fearing v. Irwin 476, 672 
Feehheimer o. Washington 
F^tr V. Schof Ikill Nat. Ca 



144,14^843 



Fell V. Stste 

Fellows e. Mew Haveo 

Felton's Case 881 

Fenelon u. Butts TT7 

Fennell v. Bay City 213 

Feuton V. Oarlick 23, 600 

Fenwick v. Gill 480 

Fergoion v. Uadram 281, 481, 004, 611 

V. Selma 743 

Fernandez, Exparit 425 

Feiraria r. VMconcelios 677, 678 

Ferrell v. Commonwealth 152 

Ferris v. Bramble 668 

Fertilizing Co. v. Hyde Park 343, 722, 

742,748 

Fetter, Hatter of 23 

Vield e. Dee Hoines 236, 661 

D. Gibbs 24 

r. People 77, 187 

Fieldi r. Uighland Co. Com, 260, 641 

FIfletd t>. Close 698, 699 

Filber t>. Dauhterman 623 

Finney v. Boyd 69 

Fire Departnient v. Helfenalein 22, 614 

B. Noble 23 

u. Wright 22 

Fireman's Assodatiou v. Lounsbury 176, 

177 

Firat Natimal Bank d. Merchants' 

National Bank S7R 

V. Price 163 

First Pariah, &£. e. Middlesex 702, 704 

V. Steams 748. 780, 781 

Hschli v. Cowan 69 

Fiah V. Collens 780 

V. Eenoslia 272 

Fiaher v. Boston 266 

V. Deering 64 

D. Haldeman 19 

B. Hildrelh 773 

v. HorricoD Co. 601 

v.MeGirr 212,871,721,741 

Usher's Leasee v. Cockerell 17 

Fisber'a Negroes v. Dobbs 467 

Fishkill B. Fishkill & Beekmau Plank 

Road Co. 1T6 

FUk V. Kenoaha 169 

Flake B. Framingham Uannf. Co. 064 

V. Hauard 376 

Fitchburg R R. Co. d. Grand Jnno- 

tion E. a. Co. 711, 716 

Fitzgerald c. Robinson 678 

Flagg V. Worcester 266 

Flanagan v. Philadelphia 788 

Flatbush, In re 176, 620 

Fleiachner c. Cbadwick. 182, 183 

Fleishman v. Walker 496 

Fletcher p. Auburn & Syncoie B. R. 

Co. 696 

V. Baxter 162 

V. FemI 24 

B. Fletcher 707 

r. Lord Somer* 63 

V. OUver 77, 172, 615 

0. Peck 108, 202, 219, 818, 823,332,694 



by Google 



TABLB or CA3E8 OITBD, 



12a, 123 



178, 179, IBO 



aw 

Flint F. Pike £68, 6M, US 

Flint, Ac Plank Iload Ca e. Wood- 
hall 116,127,224 
Flint, Ac. Tt. R. Co, c. Dewey 226 
Flint ttiret 8te*mboAt Co. v. Foiter 201, 
218, e07 
Florentine a. Buton * 
Floumoy e. JeffertonTille 
Flojd D. Mintiey 
Fol«j V People 

e. Suie 
Folkard'i C«M 
Vcitom B. New Orletn* SM 

Folu e. Stele 728 

Foote V. Fin DepArtment 741 

Ferfaei r. Haliey 453 

e. Johnion 6SG, 548 

Ford V. Chicago t K. W. B. B. Co. 868, 

689, 679 

V. CoDDij CotnmlHlonen 690 

Foriyce r. Oodmao 163 

Foreman v. Hardwick 772 

Fonter v. Fonter 114, 467 

Fort Dodge n. District Townihip 776 

Forward t>. Hampihire, Ac Canal Co. 662 
Foadick o. PenriborK IBS 

Foai B. Uildreth 57S 

Foiter V. Bmcz Bank 218, 867, 444, 466 

B. Kenoaha 6i2 



p. Neilion 

p. BcarB 769, 776 

p. ScHppi 646 

p. St Lout* 266 

Fonle p. Mmd 48T, 440 

Fowler, Miner of 669 

p. Beebe 761, 777 

p. Chicheittt 661 

p. Danrera 27S 

p. Halbert 480 

p. Fierce 186 

Fowlei B. Bowen 62S 

Fox, Ex partt 806 

B. Sute of Ohio 30, 243 

B. W. P. Bailroad Co. 

P.Wood 

Fozcrofl B. Halle tt 

Fraio p. Stats 

Pranci* b. Railroad Co. 013, 040 

FnuKoit, Ex parte 488 

Frank, £2 parte 247, 614 

Frankfort e. Winterport 107, 263 

Frankrort. Ac. B. Co. 0. Philadelphia 246 

Franklin «. Sute 411 

Franklin Bridge Co. v. Wood 202, 218 

Frani b. Bailroad Co. 886 

Frary v. Fiary 497 

Fnuher v. State 48S 

Freeborn a. Pettlbone S66 

Fmdman e. SJgel 699 

Frte Pithere' Co. v. Qann 847 

Freeholder! d. Souez 266 

Freeholder*, ftc b. Baiber 246 

FieeUndp. Haitingi 209, S&8, 282, 604, 611 

FfMouK Price 628 



Freeport v. bbeO 3l 

p. Harki ft 

Frees n. Ford II 

Freeze b. Tripp 1 

Freleigh v. State 8' 

FreUaen v. Hahan 61 

French v. Boston 2i 

B. Braintree Hannf. Co. O 

V. Camp 7: 

V. Commonwealth 8: 

B. Bdwarda I 

0, SIrktand 6: 

0. Nolan 7: 

Fretwel] v. Troy 2' 

Friedman b. Mather II 

Friend p. BamDl 7' 

Frink V. Darat I 

Friibie B. Fawter 6! 

Frith B. Dubnque 2i 

Frolickttein r. MobUe 690, 7: 

Frommer e. BIchmond '2 

Frost V. Belmont 166, 230, 21 

Fry V. Bennett 61 

V. Booth 93, r 

V. State 714, !■ 

Fiy's Electtoa Caae 764, 766, 71 

Fryer v. Chicago, Ac R. B. Co. 71 

V. Kinneisley 6: 

Fuller V. Dame 166, 1< 

p. Eddings 8! 

V. Gould 6 

V. Groton 21 

p. UampttHi 81 

p. People 11 

Fnllerton b. Bank of United States 

Fnlmer b. Commonwealth ' 

Fulton p. Darenporl 6! 

p. McAfee 1 

Furman b. New York I 

p. mchol 3' 

FormaD 8ti«el, Matter of 61^ 673, 71 

Fumell P. St Panl I 

FomiM B. Undeoo Biver B. B. Co. O 



Oabbert p. BaOroad Co, 1 

Oabel p. HoDiton 2 

Gage V. Graham 287, 2 

p. Shelton 6 

Grwnea b. Buford 4 

p. Coates 487, 489, 7 

B. Qaine* ISS, 1 

Gale, Matter of 4 

B. Kalnmaioo 487, 722, 7 

p. Mead 

D. South Berwick 2 
Oaten d. Clyde & Boie Flank Boad 

Co, 3 



by Google 



TABLE OP CASBS CETBD. 



Gklmbnrg r. HawkiiiMn 121, 231 

Gall c. Cincinnati 744 

GalUcin e. Bradford 843, 248 

Ganimel r. Potto' 004 

GMiietc V. L«onud 124 

Guitly'i Umee r. Ewinr 864 

Garbett, £7parls 412 

Owda V. Lee 16 

D. TcrritorT- 404 

Gardner v. Collina 19 

V. Hope Ini. Co. SSQ 

«. Newbun 6G1, 681, 691, 695 

p. The CidlMtor 163 

V. Wari 775 

Oarl&nd, Ez partt 818, S30, 823, 824 

V. Brown'i Adm'r MB 

Gamer v. Gordon 427 

Qarr v. Selden 616, 650 

Ganett n. Beanmont 467 

V. CordeU 363 

D. Doe 466 

B. 8t. LooU 628 

Garrlgu «. Board of Com'n 170, 1T7 

GatriwD v. Hallini 607 

P. New York 306 

V. Tillingliut 601 

Oartin v. Fenick 578 

Gaictrigne b. Ambler 52S 

Ga> Company d. San Fnitciico 307 

D. wWlmg 71 

Gaikill V. Dudley 802 

Ga» r. Wilhite 677 

GRtiett V. Gilbert 62t) 

Gates D. Neal 776 

Oathercole t>. Hialt 641, 642, 662 

Gatlin c. Tarbora 613 

Ganlden r. State 412 

Gebhard b. RailnHid Co. 445 

Gebhardt s. Reerea 684, 693 

Gee E. WiUiamion 59 

Geebrick v. State 139, 146, 148 

Gehling V. Scliool DUtrict 226 
Gelpcke a. Dubuque 20, 142. 268. 272 

Gentile r. State 164, 738 

Genther v. Fuller 646 

Gentry i: Grifflth 161, 206 

George r George 727 

V. Gillespie 69 

r. Oxford 188, 209 

Georgia b. Stanton 1 
Georgia, &c, R. B. Co. b. Harris 493, 496 

Genird a. People 401 

Germnn, 4c. Cong. b. Prewler 677 
German Reformed Church v. Seibert 678 

Qerritli v. Broon 728 

Gerry g. Stoneham 466 

GettjB t>. Gettya 497 

Oiacomo. In r» S31 

Gibb V. Waahington 762 
GibboDt t>. Mobile, Ac R. R. Co. 142, 469 

n. Ogden 10, 71, 730 

V. United States 15 

Gibbi t>. Gale 462 

ffiboney e. Cape Oinrdeaa 022 



M7, 54&, 664 



Gibson, Ei porta 496 

B. Armstrong 678 

V. Choteao 17, 463 

B. Emersoti 108 

r. Hibbaid 466 

B. HaMm 4S6, 747 

«, School IMtlrict 226 

Giesy r. CincUmatL W. A Z. R. B.Ca. 671, 
692,704 

GUford B. Peoida S87 

e. Railroad Co. 17T 

Gil 0. Daria 167 

Gilbert d. Peo|^ 

Gildersleere t>. People 

Gilkeson e. Frederick Joaticea 229 

Gill B. Parker 720 

GiUespie t>. Palmer 746, 776. 779 

E. State 176, 180 

Gillette e. Hartford 628 

GiUiland v. Pbiliipi 463 

B. Seilen'i Adm'r 493 

Gillinwater f. Uiaaiaaippl & Atlantic 
IL R. Co. 63, 99, 664, 656 

OlUison B. Charleston 311 

Oilman e. Cntla 440 

V. Lockwood 868 

t>. LoiieU 

B. Philadelphia 10, U 
B. Sheboygan 
E. Williams 

Gilmer b. Lime Point 6E 



I, 724, 726, 780 



D, 656, 668, 696. 



142,2! 



Gina v. Rojiera 

Qirard a. Philadelphia 

Ginrd Will Case 

Girdner e. Stephens 42, 

Gladden c. State 

Gleason v. D»dd S3, 24, 

V. Gleaaoa 

B. KelelUS 
Rlouoester Ins. Co. b. Tonnger 
Glover c. Powell 676, 

Goddard, Petitioner 241, 248, 247, 
Goddard u. Jackaonrllle 
Goddin v. Crump 
Qoenen r. Suhrcader 
Goetclieus r. HatltevrsoD 
Qotr B. Frederick 
Goggani f. Tumispeed 
Gohen r. Teiai Paclflc B. R. Co. 
Gold E. File 

GoldthiraiteB. Montgomery 
Gold Water, ftc Co. o. Keyea 
Gunell E. Bier 
Good V. Zercher 
Ooodell. Matter of 

V, Jackson 
Gooilenongh, In r* 
Goodhue, lit 
Good in c. Thoman 
Goodman b. Honks 

B. Bute 
Goodrich n. Detroit 

p. Winchester, 4c Co. 
Qoodsell D. Boynlon 



by Google 



TABLE OF OASES CITED. 



GooJtide p. KIbbee 


650 




V. Otwa* 
QordoD 0. Appeal Tax Court 


63 


nald 


664 


32 


Great Weitem B. B. Co. d 


Decatur 716 


160, UO 




183 




486,488 


Green v. Aker 


100 


■>. Caldcleugb 


18 


p. Biddle 


333 


r. CoTDM 286,286,610,611 


B. Chapman 


562 


0. Funr 


776 


„. Callini 


4^ 




110 


p. Creighton 


4M 


..Peopk 


182 


p. Cuatard 


600 


V. Preston 


288 


p. Holway 


690 




m 


V. Mayor. && 


176 


0. Coopwitoita 
V. Luckett 


311 
390 


P. Neal'i Leawe 
p. PoMlmd 


19 

«8« 


0. SpringBeld 


141 


p. Beading 


252,678 


Gotumi) b. P«ci«c B. E. Co. 


839,715 


0. Sarmiento 


24 


Oormley o. Tijiot 


218 




728 


GoihM. <-. Keri 


246,614 


p. Shumway 


768 




476 


V. State 


488 


s. StoniDgtoo 


200,460 


p. Swift 


672, 73* 


Gothorn v. ParceU 


457.466 


p. Telfair 


678 


Goilin D. CunoQ 


627,646 


p. Van Buakirk 


24 


Coiling V. Voley 


248,780 


V. Waller 


71, 72, 163 


OnMlInk r. Cftmplxdl 
GoMet p. Howard 


247, 727 


Greenca«tle, &c. Co. p. State 66, IBS 


160, Ifll 






262, 673 




86.04 


Gott r. pDltihr 


066 


Greene b. Brigjn 


871, 48% 607 


Gottbehuet v. UubMhek 


622.544 


Greenfield b. Dorrii 


366 


Gough 0. Doney 


108.606 


Greenlaw p. Greenlaw 


4B6 


». Pr»tt 


114 


Greeooogh p. Greenoagh 


108, 100, 110, 


Oonld t>. EutUon BiT«r R. B 


Co. 672, 




113. 127, 467 




676 


Qreenaboro' p. MulUni 


2*2 


». Stiriing 238. 270, 271, 468 


Greenville & Colnmbla R. R. Co. p. 


GonldiDg r. Clark 


237 


Partiow 


708,701 


GoTBD t>. Jackion 


782 


Greenwood p. CuKU 


'l52 


Qdt« r. Bkthen 


641 


p. LouUTille 


266 


«. EppiDg 
GitTcmor d. Porter 
Gr«» t. McElroy 


275. 611 


B. Slate 


242 


66, 109, 114 


V. Denver Bank 


269 
349 


Graham, Ex parte 
Granimar School v. Burt 


467 

837 


Grier p. Shackieford 


2*7,738 

786 


Granbr v. Thunton 


230 


Griffln v. Cunningham 


486 


Grand Gulf B. B. Co. t. Back 


340 


V. Martin 


6Tfl 


Grand lUpida r. Hnghu 


284 


p. McKeniie 


*60 


Grand Bapida, 4c R. B. Co. f. 


HeUei 674. 


p. Mixon 


446 




686 


p. New Totk 


254 


Grand R^da Booming Co. » 


Jarrit 


V. Ranney 


699 




676 


V. Wilcol 


852, 446. 446 


Granger e. Pnlaaki Co. 


2M,30a 


V. Williamatown 


311 


Grannahan v. Hannibal, to. 


B. B. 


Grifl9n'i C«M 


14 


Co. 


711, 717 


Griffin's Ex'r p. Cnnnlnghai 


m 116, 180, 


Grant p. Brooklyn 


810 




478 


p. Conrtcr 


206 


Grifflng V. Gibb 


19 


p.Erte 


265 


Grigga p. Foote 


268 


p. Leach 


490 


Grill, p. Joneiboro- 


246 


P.Spencer 


03 


Grim p. Weiaenberg School 


Diatrict 461, 


Grattan p. Mattuon 


606 




608 


Giarea p. Blanchet 




Grimei p. Coyle 


E7, 635, 546 


V. Olu 


262,678 


p. Doe 


468 


Gray p. FinI Dirliion, Ac 


670 


(kiiwold P. Bragg 


480 


p. Hook 


773 


p. School Diatrict 


616 


p. NaTtgation Co. 


889 


Orob «. Cuihman 


164 


p. Pentland 


635 




460,454 


p. Slate 


488 


Groeach p. Stale 


148 


Gny'i L<Mee v. Aakeir 


64 


Giogan V. Sao f rancUoo 


2H,383 



b, Google 



TABLE OF CASKS CITED. 



Orogan •. State 


400 


Bale e. lAvrotee 




740 


Groome r. Gwin 


138 


>. WilkioKm 




6M 


(irou B. Bice 


404 


B^7 "- Clarke 




187 


OroiTeDor ». Ch«ler 


348 


r. Philadelptila 




118,467 


V. United Socielj 


678 


V. Taylor 




416 




646 


Hall e. Bray 




164 


r, Todd 


406,470 


e.Biiiiu 




174 


Oro»CT r. Hnckiu 


448 


p. DeCuir 


491, 716. 788. 741 


Ombb B. BoUock 


136 


■>. GsTitt 




778 


(irubb* K. Bute 


179 


>.Hufc* 




606 


(irumbioe v. Wohirgtoo 


2G7, 310 


B. Thayer 




600,610 




444 


B. Wa.hiDBt«i Co. 




406 


(ruard D. Rowaa 


466 


t>. Williama 


23. 2t. 600 


Uuenther v. People 


402 


p. WiBcouain 




£18,886 


UueriD v. Moon 


442 


Hallock r, FrankUu Ca 




688 


Qnetlgr, BUie 


877 


B. Miller 




623 


Guild B. Rogen 


848,851 


Halatead ». New York 


238,260 


263,271 


GnUe r, BrowD 


^608 


Ham p. MtClawa 




199 


GnUrord r. Cornell 


176 


p. Salem 




661 




260.280, 


B. Sniilh 




778 


284.288,88 


,469,008 


p. Sute 




23 


GeiUotte f. New Orleaoa 


247,744 


Hamenley p. New York 




606 


Gaiterrez, JEx parte 


831 


Bamilton r. Carthage 




311 


Gdickr.New 


780 


p. Eno 




644 


o.W.rf 


166 


p. Rneeland 




S2 


Gunn r. Barry 42, 43. S19. .160 


p. People 




397 




148 


p. State 




162 


Gonter r. Dale Co. 


176 


p. St. Louii County Conrt 


47,78 


Gurtiee D. CliicRBO 


620 




17 


Out f. Bute 


830,302 


p. Mighela 




296 


Gutman ... Vtrglaia Iron Co. 


202 


Haralet p. Taylor 




188 


Ou/ >>. Baltimore 


603 


UamliD V Hack 

p. Meadville 




486 
234.269 






Hammett p. Philadelphia 348, 611. 619. 


H. 








620,630 
68 
147 


Heat V. Chicago, *c B. R Co. 


716, 716 


p! People 




426 




897 






232 


Hackelt. Inrt 436 


606.045 






60S 


Hacketutown o. Svackbamer 


284 


p. McConnel 




24 


Hadden it. Chorn 


678 


V. Wilaon 




661 


V. The Collector 


170 


■mrick p. Rooaa 




161 


Hadduck'i Chh 


239 


and V. Ballon 




463 


Hadler P. Mayor, Ac. 


784,787 


and Gold Mining Co. v 


Packer 602 


Hadipll r. Kan<»ck 


269 


Handy v. Chatfleld 




352,367 


Hafford D. New Bedford 


265 


p. Stale 




.TO7 


Hagan p. Hendry 


676 


Hanenitein p. Lynham 




16 


Hagany c. Colinen 


607 


Haney p, Marahall 




22 


Hagar v. Supervlion of Tolo 


688 


m«get p. Dei Moinei 




262 


I ageratown v. D«chen 


212, 216 , Hankia. „. Lawrence 




664 


e. Suhner 


280 ; HiQuel r. Sraith 




66 


Haggard t>. Hawktria 


176 Hannibal. &c. R. R. Co. 


Hoaen 


788, 741 


HahD K. United Stelei 


86 


Hannon b. St Loul« Co. Court 


803 


HaRge V. SMte 


783 


Hanoyer p. Turner 




406,408 


Hai^t V. Oriat 


699 


Hanien p. Vernon 




604 


5.Locia 


391 


Hapgood p. Doherty 




507 


Halne* v. Le*iD 


607 


D. Whitman 




460 


t. School DUtrict 


287 


Happel p. Brethaner 




164 


Hainea- Appeal 


607 


Happy p. HortOD 




677 


Hakewell, Matter of 


427 


p Moaher 




600 


..Ingram 


573 


Harbaugh v. Cicotte 


75e 


770. 780 


Halbert ... Sparki 


228 


Harbeek p. New York 




222 


Hale V. ETerett 46, 11, 677. 678, 580, 686 


Hard c. Burton 




606 


v-Kenoaha 


6»,588 


p. Nearing 




434,486 



b, Google 



TABI.B or GASES CITED. 



Hkideman v. Downer 




860 




Buden v. Cnmatock 




660 


Hartland c. Cbarch 620 


Bvdenbu^ v. Lockvood 




676 




Hsrding 0. Alden 4BT, 49B, GOl 


602 


V. ATGline 28 


r. Fank 


664 


703 


V. Oreenbow 64, 33S 


r. Goodlet 


es4 


666 


Hortranrt'g Appeal 138 


F. Koclcford, Ac R. R. Co. 




269 


Hartt 1.. HiiiTey 783 


B. Slarolord WMer Co. 




676 


HartuDg ». People 404, 446, 471 


lUrdwick B- Pawlet 




416 


Harvey v. Lackawanna R. B. Co. 672,874. 


H>ra 17. H»re 




497 


708 


B. Mellor 




636 


p. Tama Co. 773 


HtriiD ■>. People 




26 


V. Thoma# 202, 487, 668 


Human n. Lrochbais 




267 


Harward...8l.Clalr,4c.D«iBageCo. 409 


HumoD u. Dreber 




678 


Harwood v. Aetley 6« 


e. WillBce 




864 


Hasbrouck v. MUwankee 264. 284, 288. 






740 


4a9 


Harp o. 0«^ 




417 


B. Shipman 666 


"■T"&:-f"cC. 


188.186 




10 


11. New Bedford 1B7, 217, 671 






436 


HatUogi B. Une 466 




ea6 


6Bfl 


0. Lnik 640 


f. Bowe 




472 


Baiwell'i CtM 629 


mmBaDP. LamberCo. 




738 


Hateli 0. Laoe 626, 627 






678 


o. Vermont Central E. B. Co. 078, 691. 


<>.Boaloii 




810 


705 


Hmmngton ». Conn^ Com'w 




698 


Hatcher b. Toledo, Ac. R. B Co. 466 




622 


Hatcheion o. Tilder 780 


v!sut« 




309 


Hatheway b. Sacked 227, 231 


Huri« B. Autdl 




861 


Hathom 0. Lyon 4^ 
HaUOeld 1-. Gulden 167 


V. ColoDit 




GO 


p. D«?Die 




17 


Hayerhill Bridge Prop*, v. Connty 


r. Hurii 




69 








636 


Hawbecker v. Hawbecker 68 




480 


a«ea v. Miller 764. 773 


p. HoTTil 




416 


awk B. Marion Co. 262 


::»■ 




176 


Haifkini V. Barney'. I^eee 338 




166 


B. Carroll 70 


V. Ratledge 




466 


V. Commonwealth 230 


BtniwHi D. Stltimon 




732 


B. Governor 109, 138, 192 






298 


B. Jonei 60 


r. Ba*h G26 


62 


664 


B. Uwience 664 


cHarriuD 


497 


601 




>. Leach 




74 


Hawthorne b. Calef 388, 349, 366 


..Heti 




466 


Hay B. Cohoea Company 064, 676 


>.S>Ber 




64 


Hayden v. Foster 646 


v.Sti:T 




460 


B. Goodnow 229 


V. StBlO 




202 


D, Noye* 243, 247, 248 


B. SnoerrUoM 
V. WUtU 


178 


177 
446 


Hayet d. Appleton 246 






280 


Hay^ B. Burlington 662 


Hunw e. Myen 




86 


B. Thomas 674 


Han B. Albmiy 349 


708.740 


Hayi B. Brierly 673 


V. BoAwick 




461 


B. Ri.her 669 


pIbd^^ii 


267 
306,727 


Hayward, Matter of 23 
aywood u. Savannah 241 


«.Bratia 




708 


Hazen b. Eiiex Company 664 


V. BeodenoD 




464 


ead B, Providence, 4c. R. R Co. 272 


r. HoMea 




279 


eard v. Brooklyn 684 


r. Jewatt 




80 


V. Heard 188 


0. Stale 




880 


Heath, Er parte 08, 776, 778, 781, 783 






646 


Hector i-. Stale 383, 401 


Harteaa v. Harteaa 




498 








02 


Hedeei c. Maduon Co. 808 


Hartrord Bridge Co. v. Union Ferrj 




Hedley r. Com'ra of Franklin Co. 218 


Col 


:f0:^218 


Hegariy'. Appeal 121, 120 



b, Google 



TABLE OF CASES CITED. 



Hegeman -. WMtem R E. 


Co. 711,713 


Hill, £'ipnri« 




Helenft D. ThompBQn 


310 


V. Boyland 




Heller f. Sedilia 


266 


V. CliarlQtte 




Helm V. Natioul Bank 


11 








252 


V. HigdoD 619, 628. 620 


633^089, 




17,19 




<!. Lambert 


626 


V xUler 




o. Now York 


601 


«. Kricke 




o. Oliver 


616 


r. Milea 




H(>tiderK>n> DiitiUed Spiriu 369, 616 


0. Mom 




Henilerwm'i Tobacco 
Hendrick'i Ca«e 


183 
26 


::»■ 


802; 4M, 


UendrickwD v. Decow 


678 


r.Speu- 




V. HendricksoD 


188, 190, 288 


r.SUW 




Heniiler ». Freedman 


873 


■>. Sunderlud 




Henke c. McCord 


224 


■>. Wellt 




Hei.lcy E. Ljme Begia 


804,309 


Hill'i Caae 




Henrj ». Clie.lBT 


as9 


HilliMd B. C«i«rtly 




B. Deitrich 


678 


V. HiiteT 




v, Dubuque & FadBc B. K. Co. 662, 


p. Moots 






697,702 


Hilli D. Boiton 


266. 


p. HeiiTj 


176 


». ChicaRO 
Himman e. Warren 


80.100, 


r. Tilaon 


79 




Hcnahaw v. Foaler 


102,760 






Henaley d. Force 


24 


Hindiman v. Patenon Horw B. R. Co. 


Hensley Towniliip o. People 91 1 




688,600, 


HenBoldl 0. Petenburg 


163 


V. Town 




Hen wood v. HamiKin 


544,666,666 


Hind V. Hice 




Hepban o. CujU 


444,461 


Hinde B, Vattier 




Hi-pbDro'i Ciue 


667 


Hindman c. Piper 
Hine, The e. T^ror 




Ilorbcr r. Slate 


326 




Herrick b. Bandolph 


S40. 841, 596 


Hine» i: J*BTenworth 


619, 




V. Lock port 


267. 




646,846 


Hinph.m, 4c Tumpiko Co. b. Nor 


Herahfleia d. State 


800 


folk Co. 




Ilea* V. Johtiaon 


358 


H ingle d. Sute 


171. 


B.Pegg 


64, 164, 230 


Hinman b. Cl.icago. 4c. R. B. Co. 


p. Werta 


468 


HinsonE. Lott 




HesBler o. DraiuBce Com'n 
HetttaoD tp. New Haren 


460 


Hi n ton b. Slate 




367, 294, 808 


Him V. Slate 


188. 


lleweit V. Normal School District 226 


Hiai E. Bartlett 




Hewitt B. Prince 


408 


E. Railway Co. 




Hewitt'. Appeal 
Heydenfeiifi v. Town. 


622 


Eoag b. Hutch 




611 


E. Swiiwr 




Heyfron, £x parte 


600 


Hoagland b. Creed 




Hey Sing Jeck i^. ADdenon 
Heywan^ Malter of 


871 


Hoar B. Wood 


648, 6W, 


22 


Hoare b. Silrerlocke 




K. Judd 


848.366 


Hobart c. Superriion, 4e. 


141, 142, 


V. New Vork 198,216.649,687,692,698 


lobbs & Johnion, Ex rtl. 




Hibhard V- People 


371. 721 


loboken v. Phinney 






77a 


Hodge B. Linn 


762, 


Hickey «. Hinidala 


93 


lo-lgei V. Buffalo 


233, 


Hickie -. Siarke 


17 


Hodgkin. V. Rockport 






fl68 


Hodgion V. Milward 




Hickok V. P!atl«bura 


806 


B. New Orlean. 




Hiokox V. Tallman 


462,468 


B. Scarlett 






'449 


Hoffman p. Hoftman 


24, 497, 


llipert It. Gm-n Caatle 


311 


B. r*cke 




HinKina e Cbicngo 


698 


E. State 


400, 


Higli r. Sboemaker 


480 


Hoge E, Riolway Co. 




Higl,'. Ca»o 


764 


Hogg, Ei j-arle 




Hijiliway Com. v. Martin 


266 


V. Zaoeeville Canal Uanuf. Co. ib. 


Hilbiili r. Caiherman 


282 


Hoglan E. Oupenter 




Hildretb V. LoweU 


661,727 




■-. Mdulyie 


761 







by Google 



TABLE OF CASES CITED. 



Holbraok o. FloDCT 441 

V. Humy 2S, 21 

Holden K. J&met 203, 44tt, 484. 486 

Ualder c. SUM 896 

HoUoDd D. DarU TTO 

r. DivkeTMKi 310 

r. Ocfiood US 

Hoiienbei:k n. WhineUgo Co. 257 

Holler o. Borgeu BSH 

Uollldm (.-. Hunt II 

HollingiWDTth v. Douie 891 

Holliiler c. Hdliiter 497, 498 

F. Union Co. 4T» 

HollDwav B. Shemuia S49, 444 

UoliiUJi'i fiein o. Bank of Norfolk 122, 

fiOO, 60t 

Holmei, Er porta 23 

w. Holme* 846, G02 

V. JenouoD 17, 23 

Holl II. State 827, 399 

Hoh'* Appeal 237 

Bolton u. Milirankee 629, 702. 703 

Holvoke Co. d. Lfman 389, 489 

Home V. BenUnck 545 

Home Idi. Co. r. Angiuta 245, S47 

D. Taxing District 183 

Home of the Friendleu e. Boiua 340 

Hnmealead Caiei 350 

Hood c. Finch 696 

a. Lrnn 262 

f. State 24, 4»7 

Hook IT. Haukney 522, 645 

Booker r. Hooker 115 

V. New Baxen, &c. Co. 672, 674, 676, 

696 

Hooper r. Bridgewatn 661 

«. Bmei7 8M, 004,611 

HooTer e. Barkboof 224 

V. bUlcheU 69 

V. Wood 196 

Hops V. JobiMon 444 

Hopkins 0. HopldDl 497 

Hopple r. Brown 234, 272, 296 

Hoppa T7. People 377 

Hopion, Inn 424 

Horbach r. UiUer 450 

Horn V. Atlantic &c It. K. Co. 715, 716 

K. Chicago, &c. R. R. Co. 716 

Home V. Slate 862 

Hontman e. Eauftnan 361 

Horton r. Baptist Chordt 578 

D. Walion 749 

Hotkins E, Brantler 740 

Hoamer c. LoTeland 6S6, 646, 562 

Hotcliklw r. Oiiphant 669, 660, 661 

Rotlentot VeniM Caie 425 

HoDBhtoa B. Page 32 

Boose r. While 406 

House of Refage v. Bjan 869 

HoualoQ n. Hoore 12, 35 

HouBion, &x R. B. Co. v. Odnm 163, 679 

Howard. Ex parU 187 

r. Chorcli 029 

r. McDiunid 280, 767 

p. Hoot 861 



Howard v. San FrandlCO 
V. Shields 
ti. Shoemaker 
p. Slate 
V. Thompson 
..Zeyer 



177 



Bowe V. Plainfleld 

Howell V. Briitol Va, tK» 

E. Buflalo 280 

r. Ftj 606 

Howes D. Omsh 439, 476 

Hoxie B. Wright 24, 600 

Hojt e. East Saginaw 629, 680 

V. Hudson 310 

V. Sheldon 17 

V. Spragoe 123 

Habbarcl p. Bell 729 

V. Bralnerd 446, 466 

Hubbetl E. BubbeU 497, 601 

Haber b. People 178 

r. Reilr 820, 82S, 482, 763 

Hnckle b. ISonej 874 

Hodaon n. Geaiy 246, 590, 726 

V. Sute 892 

p. Thonw 244, 247 

Hadspetli v. Darls 850 

Hufl p. Bennett 664, 601 

0. Cook 740 

Baghea, Matter of 28 

V. Ballimore 266 

V. Caanon 466 

P. Hoghes 88 

Hughey'i Lessee v. Horrell 473, 620 

Holl V. Hull 497, 601 

E. Marshall Co. 272 

E. Miller 166 

Hulseman v. Rems 764, 787 

Humboldt p. Long 271 

HomboldtCo.D.CharchUlCo.Com'rt 174, 



Home p. New Tork 
Homes p. Major, Ac 

V. Tabor 
Hnmphrej p. Peqnee 
Humphries v. Brogden 
Hangerford's Appeal 
Hunsaker p. Wright 160, 6 

Hunicom p. Ilunscom 
Hunt B. Bennett 686, 630, 5 

E. Boon Tills 

Hont't Lessee v. McMahan 
Hunter. £z parts 

p. Cobb 

V. Nolf 
Hnnting p. Johnson 
HoDtiiifrlon p. Cheesbro 
HnnUTille v. Phelps 
HuDtzinger e. Brock 
Kurtord e. Omaha 
Hurley c Powell 

B. Van Vfagnet 
Hocst P. Smith 



806 



by Google 



TABLE OF CASES OITBD. 



Huwv. 
Iluson 1^. Dole 
Hulclwion V. Peck 
UaushiofOD V. Coaootd 

I'. Wheeler 
HnlMD ■>. Hew Tork 
Button V, Camden 
HjaU v. Bate* 

tr. Rondout 

IT. Tivlor 
ayd» V. Bnuh 

V. Cogu 

!. WhiM 



Hydei 
Hfltoc 



9. Uniti 



IfCoe D. State 177 

Iltlnois, &c. Co. B. Peoria Bridge 731 

Illinois & Mich. Canal e. Ciiiuago & 

R. I. R. R. Co. S4:i 

Uiiooit Cent. R. R. Co. e. Arnold Tie 

0. Irrin R41 

D. McLean 63,9 

V. 1-eople SS8, 714 

V. Wren 164 

Illinoii Cnnt. Fem. Col. t. Cooper 241 

Ililey c. NiclioU 3e£ 

Imiay v. Union Bnutch R. R. Co. 680. 

683 

Indiana Cent. B. R. Co. D. Fotti 98,178, 
174, 180 
Indiaoapolli && R. R. Co. v. Kerche- 

val 848, 708, 711, 716, 716 

■7. Smith 674 



p. Tom 



I. EuTdl 



Indianapolii Sun 

Inf;alli e. Cole 

Inge V. Police Jnrj 

Inglee a. Coolldm 

Inglis V. Sailors Song Harbor 

IngraliBin v. Ge; er 

r. Ke»n 
Inman u. Foster 

B. Tripp 
Inman Steamihip Co. r. Tinker 
Infurance Co. v. Morw 

s. Ritchie 

r. Treaiorer 

f. Yard 
Intendant of Greeniboro' i>. Hullini 
In toxica ling Liquon, In re 
Iowa R. R. Land Co. r. Soper 4S7, 
Ireland r. Turnpike Co. 198, 

Iron Mountnin Co. v. Haight 
Iron R. R. Co. e. Imatoo 
Imni V. Field 

Iiom V. MisaiMippi, Ac B. B. Co. 
Irerion v. Stale 



■J. 



jMkion, Ex parte 
Matter ot 


11, tl2, 878 


420,426 


e. Butler 




0. Chew 


19 




888, 369, 890 


D. Hathaway 


698 


». JackKiD 


407, G02 


I'.il^Ka 


448 
319 


B. MimiDO 


106 


e. Reere* 


177 


B. Rutland * B. R. B. Co. 698, 71« 


V. Shawl 


IM 


t.. Vedder 


01 


». Walker 


772 


B. Winn'. Hein 


e96 


t. Young 


93 


Jackiou Iron Co. •>. AndiCor-Genenl -601 


Jacob D. LouiiTiUe 


704 


Jacoba d. Cone 


390 




8&6, 866 


Jacowaj n. Denton 


^,847 




se 


V. Rowland 


118 


I-. Sloll 


SM 


Jameson d. People 


239 


Jamlion a. Borton 


04 




26 


Jane* v. Reynoldi 


434 


J.i>H>n V. Stuan 


6sa 


January e. January 


36G 


JanvFin v. Eieler 


262 


Jarnagan c. Fleming 


624 


Jarris e. Halheway 
Jelferwn Branch Bank ». S 


636,646 


(elley 20, 42, 
160 
248 




JeffersonTille. &c. B. B. Cc 


P. Ben- 


dricki 


22 


V. Nichol* 


716 


V. Parklmnt 


716 


JeSre; v. Brokaw 


646 


JellHei V. Anken J 


488,776 


V. Ldwrence 


284 


V. Willianit 


708 


Jenkini, £zp<irf( 


428 


p. AndoTcr 


254 


IF. Charleiton 


608 


tr. Ewin 


71,78 


V. Jenkins 


4*3 


V. Thomaa*ilte 


248 


r. Waldron 


776 


Jenninfts p. Paine 


646, 649. MO 


V. Stafford 


602 


Jerome v. Rosi 


6S1 


Jessup V. Caraegie 


163 




26 


Jewett V. New Baven 


266 


Joanne* c. Bennett 


627 


John B.C. R. & F. W. B. B. Co. U2 


John & Cherry Stteeta, Matter of 487, 



b, Google 



TABLE OF CASES CITED. 



John* V. State 88S, fil 

JohoMii V. Atlantic, &c. B. B. Ca & 

p. Beailej- I 

o. BcDtler 41 

p. Bond Si 

F. Brown & 

V. CampbeU 280, 4' 

*. Commoii Council 2 

V. Dminniond 61 

V. Fleicber Si 

r. Higgini 176, 228, 847, Si 

0. BndHiD R. R. Co. I 

V. Joliet & Chicago B. B. Co. 3: 

V. Jonei 446, 446, 4J 

V. ParkenbuTg 100, 6 

e. People 174, 7i 

V. Philadelphia 237, 246, 6 

V. BaUroad Co. II 

V. Rich 1' 

V. Riler 21, : 

V. School Diatrict 2: 

o. Stack 1' 

V. Stark Co. 2 

o. Sute (1 Tez. Ap.) Si 

f 10 Tex.) S' 

(29 Ark.) 41 

p. Wallace & 

JohiuoD Co. v. Janoary 2' 

jolmiton V. CoDiDiODwealth 201, 51 

p. LouUTiUe Z 

p, Bitej 

Jahnitone v. Sutton 5- 

Jdiet «. Verley 21 

Joliet, Ac. R. K. Co. p. Jonea T 

JoUr p. Ten« Haute Drawbridge Co. S 

71 

Imf V. BitA 11 

p. Boalm 629, Oi 

p. Carter 41 

p.CaTlM II 

p. Colamlma 1' 

p. Darii tl 

>. Fletcher 8^ 

V. Galena, Ac B. B. Co. 1! 

r. Haiiii 61 

V. Hatchineon 156, 163, It 

p.JoDca(18Ala.) 41 

|2 Orert.) li 

(12 FeoD. St.) 134, 224, 3! 

r. Keep'* EtUte 61 

e. Hebraaka Z 

p. Kew HaTeo 304, S09, 3: 

e. Peoirfe 719, 71 

e. Perry 111, 118, 123, 126, 4! 

p. Richnioad 221), 7' 

p. Bobbins 214, Gl 

p. State 830, 71 

p. Thmpaon 179, II 

p. Wcathenbee I 

Jordan r. Woodward 61 

Jordan'! Caie 31 

Joomeav p. Qlbaon 466, 41 

J07 B. ThompHin Si 

Jo^MT V. School Diatrict 6' 



Jodkins p. Hill 
Jodaon v. Bridgeport 

p. Reardon 
JiuticeB p. Fennlmore 



• Kaine, Hatter of 

I Kalloch D. Superior Conrt 876 

' "nev. Baltimore 

B. Commonwealth 

p. Cook 

p. People 
: Kansaa Padflc R. R. Co. p. Uowor 

• Kame; v. Paisle; 
> Kaucber p. Blinn 

1 Ka7*er p. Bremen 

I Kean v. McLanghliii 

'■ E. Stetaon 

I Eeamej, Ex port* 

I 0. Taylor 

I Keaiy p. LoniaTllle 

; KedJie P. Moore 506 

I Keenan p. Cook 

Keen p. Sute S24 

I Keene v. Clark 

• Keith p. aark 
V. Keith 
B. Kellogg 
p. Ware 

< Keller u. Corptii Christl 

V. Bute 
: Kelley r. Coraon 616, 

B. Partington 
p. Pike 
p. SheHock 613, 

< Kellinser e. Railroad Co. 

' KellogE, Ex porta 426 

p. Oihkoth 
D. Slate Treatnrer 
p. Union Co. 
Kelly u. Bemii 

p. Hanhall 263, 281, 

D. McCarthy 
P. Pittabunh 

p. Tinling 643, 644. 

' Keliey v. King 

Kemp, In re 
i Kemper u. McCleUand 644, 

Kendall, In re 

V.Dodge 

p. Kingiton 62,218,45% 

p. Sute 

D. United Statei 
I Kendillon v. Maltby 
) Kendrickt d. Slate 
I Kennard v. Loniiiana 
I Kennebec Furchaae e. Ijibom 
' Kennedy, In re 

V. Board of Health 

V. Inaurance Co. 



by Google 



TABIX OS- CASES CITED. 



KeDMdj r. Phelp* 




722.742 


King, The v. Fletcher 


404 


Kennelt'i Petition 




672,673 


K. Foicroft 


748, 779, 780 


Kent V. Kentlsnd 




615 






Kenluck7 v. Denniicm 




23 


„. Hagan 


889 


Kent worthy v. Ironton 




310 


V. Hawkiu 


780 


Kenyon ». Stew»rt 




S48 


B. Hector 


525 


Keokuk a. Packet Co. 




35 


». HoTd 


885 


Kennolt o. Ayer 




32 


■>. nhab. of Hardwicke 


299 


Kerr. SUtler of 




S41 


t.. nhnb. of UipiweU 


89 


P, Doughortj 




163 


V. nhab, of Sl Gregory 


sg 


t. Jonei 




7« 


V. InhiO.. of Wobum 


299 


«.Kerr 




497 


V. Kingiton 


384 


a. Kitchen 




124,126 


r.L«' 


654,500 


v. Union B«nk 




6B 


V. Levii 


382 






sei 




«) 


Kenluiw v, Bailey 




&36 


B. Mayor of Stimtford od 


Atod 288. 


Kentbacker i>. Clerelaml, 


4c. 


tLB. 




289 


Co. 




676 


V. Milter 


670 


Ketelmm v. Buffalo 




2S3 


B. Monday 


780 






811, 718 


■>. Moor« 


190 


Keyger d. Stiiaiifer 




677. 678 


c. Newman 


561 


Kibbe V. Ribbe 






r. Paine 


62S 


Kibby V. Chetwood'* Adm 




124 


D. Parry 


780 


Kidd •■. Guild 




4ao 


V. Partridge 
V. Richard 


383 


Kidder V. Parkhnrat 




646,646 


S8S 


Kitboume, Matter ot 




168 


I.. KiTer 


S86 


V. Woodwortli 


160. 161, 163 


V. Rowwell 


743 




23,600 


p. Simpton 


S84 


Kiigorc V. CotumoDWOalth 




183 


V. Smith 


881 


VMagee 




IH 


V. St. OlaTM 


7GS 


Kilham c. Ward 




776 


». Sotton 


lis 


Kimball o. Alinro 


812 


761. 777 


... Taylor 


686 


11. Kimball 




497 


B. Tboinaa 


884 






471,646 


o.Tinard 


748 




t>. Tnbbi 


866 


Kinibrou. Bank of Fulton 




461 


B. Waddinghm 


585,588 


r. Hardin 




257 


B. Walkley 


884 


Kinc&id'i Appeal 


161 


261, 741 


B. Webb 


382 






100 


B. Withen 


779 


Kincaid c. SeweU 




646 


B. WoodUI 


560 


King D. Almon 




S90 


p. Wotditon 


686,587 


Davenport 


246, 7<0, 712 


B. Yonnger 


68 


V. Dedham Bmk 




110,338 


Kingley b. Cnnilnl 


357 


p. Hopkini 




600 


Kingsbury'! Case 


23 


V. Hunter 




78,336 


Kinkead v. McKee 


678 


V. Moor« 




188 


Kinmundv p. Maliao 


250 


r. Reid 




144 


Kinney, A* parte 


483 


r. Root 589, 6M 


,GG9 


G61, 574 


D. BeTeriey 


488 


V, WilMin 




19 


p. O'Connor 


770 


King, The, d. Abinrion 




687 


Kinney'i CaM 


483 


c. Bailie 




664 


Kiniworthy b. MitcheU 


A44 


e. Bedford 




750 


Kip n. Paterton 


246 


p. Campbell 




526 


Kirby p. Boyliton Market 


247 


t. Carlfle 




664,685 


B. Penn.ylT»nhi R. R, Co. 716 




499 


p. Shaw 207. 


286. 287, 604 


t>. Clement 




569 


Kirk B. NowiU 


24S 


D. Cleira 




884 


p. Bhodet 


7ei 


r. Cooper 




885 


p. Sute 


892 


,. Cox*^ 




63 


KIrkpatrick b. Eagle Lodge 


636 


i>. Creevey 




664,667 


Kirtland v. Hotcbklu 14 


16, 491, 594 


V. De MaoHTille 




427 


KiBler p. Cametoa 


784 


r. Dnnn 




384 


Ki.tler p. State 


S99 


r.Ellil 




881 


KitUnniog Coal Co. p. Commonwealtb 613 


e. Enoch 




383 


Klegg p. Lafler 


522 


B.Fi.lier 




664,665 


KkiDKhQudl V. DaDphy 


391 



b, Google 



TABLE OF CASES CITED. 



KleiKT r. S7nmM 

IQewin v. Bbudmii 

KlimA r. Colbj 

KhTtg r. Ttiet 

Klamph d. Dudq 

Knkpp V. GranI 

Knc— I'l Appeal 

Kneedler «. l«De 

Knraluid v. Hllwankea 68, 

Kneetle v. Newcomb 317 

Knight r.BegDle 456 

p. FMier 624, 5U1 

D. Glbba mz 

Kniper r. LoniiTMIe 236 

Knoop e. Piqua Bank 340 

Knole D. United Stalet 13B 

KnoaltoQ v. B«deDbAagii 456 

Kuowln D. People S8T, 488 

c. Team 779 

Rnowltoa v. Saperricon of Rock 623. 

640 

Koox B. Chaloner 728 

r. CUtTeland 449 

Kooi Co. B. AapiDirall Z72 

KnoxTitle c. King 486 

KnoxTilU, to. R. R. Co. b. Stale 107 

Koba p. MinoeapolU 810 

Koetlenbader v. Fierce 70S 

Kohl B. United SUtea 650, 661 

Kohlbdmer d. State 401 

KiMiDta r. Franklin Co. S34 

p. Nabb 64 

KooniR r. Omaha 224 

Kraft V. WiL-kej 601 
Knwier v. CieTebnd, Ac R. R. Co. 651. 
667 

Krebe v. OlJTer 622 

Kreidler f. State 762 

Krone v. Krone 461 

Kroop D. Farman 664 

Knckler o. People 829 

Knhn r. Board of Education 230 

Knhna v. Kramia 170 

Knokle v. Franklin 468 
Knrta p. People 1T4, 177, 726 

KnrkendaU p. Barker 168, 778 

Kfie p. Jenkina 821 



i La Fayette, &c B. R. Co. p. Geiger 88, 

141 

D. Window 600 

I Lake Erie, £c. R. R. Co. v. Heath 26, 606 

Iceman n. Bumham 661 

) Lake Shore, &c. H. R. Co. v. Chicago, 

Ac R. R. Co. 649,^% 674 

: Lake View v. Rose Hill Cemeterv 281, 

741 

Lake View School Truiteei v. Peofle 227 

l^iub D. Lane OU, 698 

e. Ljnd IW 

1-. Schotter 6M 

Lambertaon b. Hogan 114 

Lammert v. Llclwelt 141, 148 

Lancanter n. Bnrr 486 

Lancej v. CliHotd 728 

I.ander d. Seaver 417 

Landon v. Lituhfleld 340 

Lane v. Dorman 126, 218, 433 

K. NeUon 129, 456, 458 

V. Vick IB 

Lanrear v. Mayor 510 

Langdon r. Applegate 64, 188 

Lange, Ex parte 404 

Idngfiird p. Fly 446 

B. Ramsey Co. 6S6 

p. United Statei 16 

Lan^ome v. Robiaton 620 

Langworthy v. Dubnqae 230, 021 

Lanier b. Gallatai 116, 770. 779 

Lanning «■ Carpenter 812, 776 

B. Chrlily 646 

I«n*inK V. Carpenter 646 

B. Utnaing 772 

p. Smith 674 

p. Stone 82 

p. Toolan 356 

p. Van Oorder '236 

I^inzetti, Sncceuion of 176 

Lapeyre v. United States 186 

La Flaisance Bay Harbiw Co. r. Mon- 

84 



Lacey v. DaTis 

I^ckawaua Iron Co. b. Little Wolf 
~ " ~ 9. Morth Ho. R. R. Co. 230, 



Lkcy p. DaTia 463, C 

iMttou V. Dofoe I 

L* Vayette v. Buah 2^, ( 

P- Cox 233, 284, i 

p. Fowler 262, 629, « 

r. Orphan Aiylnm ( 

Lm Fayette Flank Road Co. «. New 

Albany. Ac R. K Co. « 



i:«nlsDn n. Peoria, &e. R. R. Co. 163, 184 

LaBure v. Stale 830 

Lathropn. Mills 212 

B. Snyder 606 

LatlesB B. Holmes 188 

Lanck's Appeal 867 

'■ Laude r. Chicago, &c. R. R. Co. 76 

Laner d. Slate 177 

Layfll r. Myers 772 

Laiallc p. Strobe] 83 

i Law, Ex patU 819 

p. People 100 

I Lawler p. Earle 627 

Lawrence, /■ re 441 

K. Bom 607 

D. Great Nor. R B. Co. 699 

p. Miller 443 

Lawrenceburg b. Wueat 242 

I lAwaon v. Hicki U9 



by Google 



TABLE OF CASES CITED. 



&c 



LawioD V. JeflViM 
Lawyer v, Cipperlj' 
LaytOD t). New Orleaoa 

I'. White 
Leach b. Money 
League u. Jouraemj 
LeaTeDwortli v. Norton 

f. RankiD 
LeaveD worth Co. v, Laos 

c. HUler 
Leavitt b. Wataon 
Lebanon v. Olcolt 
Le Barron 0. Le Barron 
he Claire v. DsTenport 
Lee V. Flemingibnrgh 

V. Minneapolia 

u. Saiidy UiU 

V. Sut« 

0. Tillorton 
Leefe. Matter of 
Lefever a. Detroit 
Lefferti t). Supervlion 
Lefflngwell v. Warren 
LegR K- Aorapolii 
Leggelt K, Hunter 
Lehigh Iron Co. c. Lower Macnngie 
Lehigh V. E. B. Co. ». Do' 

B. B. Co. 
Leiiman o. McBride 1 

Leilli V. Leitli 
Leland r. Wilkinton 
Lemmnn r. Chicago, Ac. B. B. Co. 

v. People 
Lemons r. People 
I^non B. New York M4, 1 

Lenz D, CharlioD 4 

Leonard c. Wiseman 
Leprohn r. Oitawa 
I^ea Boi« p. Bramel 
Leslie r. State 
Leasley v, Phipps 
Leasee of Dulany v. Tilghman 
Letter i: Suie 

D. Tliurmotid 
LcTin* r, Sleator i; 

Levy .-. Slate a 

Lewis r. Chapman 61 

V. Clement 

ti. Com miisi oners 

V. Foiier 

II. Garrett'* Adin'r 

V. MuEKain 444, 4 

V. Oelers 6 

V. Si-hnuckelberg 7 
V, Tliomton 

V. Walter E 

V. Webb 116, 130, 202, 449, 4 

Lewis's Appeal 107, 2 



I Lexington v. Butler 270 

e. Long 702, T03, 704 

V. McQuilUn's Heirs ei9, 631 

I Lexington, &c. B. B. Co. t>. Applc- 



B«'e 



679 



663, £64, 666. 663 



: Libby B. Bnmham 

License Cases 2, 602, 708, 709, 718, 720, 

72-i, 7*1 

: IJcenie Tax Cases 20S, 709, 719, 73S 

I Lite AjsociattoD e. Auewors 00 

1 Ligat D. Commonwealth 097 

I Lightbarne b. Taxing Diilrlct 616 

I limestone Co. v. Rather OS 

• Lincoln D. Alexander 118,123 

V. Hapgood 766, 770 

V. Iron Co. 271 

V. Smith 2B, 801, 607, 719, 720 

B. Tower 24 

1 Lindenmnller v. People 726 

' Lindholm r. St. Paul SU 

' Lindsay v. Commiisiooen 193 

i Lindsey v. Hill 15S 

I V. Smith 622 

' Lindsley v. Coati S2 

' linsBi V. Hesing 778 

I Linford b. Fitiroy 878 

Lining v. Bentham 891 

Linn b. Minor 06 

' Linney n. Malon 628 

Lin Sing B. Washburn 484, 602, 626, 726 

Linsley v. Hubbard 124 

Linton t>. Stanton 18 

Tisbon E. Bath 642 

Litchfield v. McComber 848 

V. Vernon 006 

: Litowich V. Litowich 497 

Little V. FitU 498 

B. Madison 267 

B. MerriU 2ST 

B. Smith 64 

' Ltttlefleld D. Brooks 764 

' Liltlcjohn v. Greeley 644 

! Little Miami R. R. r. CoUeH 708 

I v. Dayton 662 

. Little Rock t>. WiUis 266,267 

Little Bock. &c., R. B. Co. ti. Payne 464, 

716 

Littleton v. Richardson 499 

Litilewon u. Daria 226 

Lite Stock. &c. AiBociation o. Crei- 

ceut City, &c. Co. 346, 722 

( See Slaughter Hook Catet. ) 

LlTingston v. New York 619, 629. 633 

B. Van Ingen 20 

Livingston'! Lesaee v. Moore 26 

Livingston Co. v. Darlington 286, 611 

V. Weider 286, 610 

Lloyd V. New York 805, 809, 810 

Loan AsBodation n. Topeka 104,268,698, 

607, 611, 6ia 

Lobrano v. Neltigiui 124 

Locke r. Dane ISi, 467 

Locke'a Appral 148 

Lockhart b. Horn 460 

V. Troy 177 



by Google 



TABLE OF CASaa CITED. 



loekpMt 0. Cotyloid 1' 

Uckwood n. St. Lonii 6i 

Loeb V. Hkthis ( 

Loeffner t>. State 8' 

Logtn V. Mattbewa T. 

>. Pjne 23G, 2^ 

B. Walton 44 

Logue B. Commonwealth 8' 

Loom d. St&ie 4t 

Londonderrj v. Aadorcr 2! 

Long D. Fuller 661, 61 

Lang's Caw 8t 

Long Iiland R. R. Co., Hatter of 7t 

Lonsworth r. Worthiogton 41 

Look v. DeaD T( 

LoomU B. Coleman '£ 

V. Jnckion 42, 7- 

V. Wndhami H 

Lord c. Chadboume 4< 

■>. Litchfletd 841, 4^ 

>. Steamahip Co. 1 

n. Thomaa S^ 

Lorillard v. HoonM 8( 

I.OTinf[ r. Manh ] 

Lomian v. Benton 32, T. 

V. Clarke '. 

Lothrop c. Commercial Bank IE 

B. gteadman 63, US, 127, 140, 74 

Lott B. Morgan B( 

B. Rota Bj 

Loughbridga n. Hairii 664, e( 

IjQuia B. SchnDckelberg 71 

LoDiuana Stale Lattery t). Rlchou 1( 

LooiiTille v. Commonwealth 8( 

B. Hyatt 266, 61 

B. Rolling MiU Co. 2f 

B. DniTtraity 21 

Lottiaville. &c. Co. i>. Balhtrd 1' 

LoaiiTille, Ac B. R. Co. r. Bnike 7] 

r. DaTidton 142, 7' 

V. State 613, 04 

LoiiiiTille & NaihTille B. H. Co. e. 

County Court T, 

V. Thompaon 7( 

LonitTille Citj R. R. Co. e, Lonlt- 

Tilte 268, 2f 

Lonmand b. New Orleaiu 3f 

Lore e. Moynafaan 41 

D. Sliartzar 44 

Loreland a. Detroit 2i 

loTiogitun V. Wider SS7, 489, 6( 

B. Trutteea 61 

Law B. Blanchard f 

B. Duuhata t 

B. Galena ft Chicago D. R. R. 

Co. 6'; 

V. Townt 1! 

Love o. Commonvealth 7S, SI 

Lowell V. Beaton 209, 268, 606, fH 

B. Hadley 98, 71 

B. OUrer 278, 2^ 

LoweDbnrg b. People « 

Loweree a. Newark 096, 6) 

UwDdea Co. v. Hunler 2: 

Jjawry v. frandt 81 



Lowry v. Rainwater 871 

Lucai B. Cage 58^ 678 

B. Sawyer 442 

B. Tucker 469 

Ludlow B. Johnaon 444 

Ludlow'i Heira b. Johnton 68 

LndwIgB. Cramer 668, 6G4 

V. Stewart 451 

Lnehrman d. Taxing IHttrict 224, 231 
Lumbard v. Aldncli 163 

Lumiden v. Croat 468, 607, 620, 029 

Lund ti. New Bedford 664 

Lunt't Case 202 

Loalier v. Scitet 22S 

Lather b. Borden 26, 40, 747 

Lycoming b, DniOD 466 

Lydecker «. Palisade lAnd Co. 64S 

Lyie B. Iticharda 32 

Lyman r. Botton & WorcMler R. R. 



Co. 



716 



B. Martin 




768 


V. Mower 




446 


Lynch B. Brudie 




480 


B. Hoffman 




8^1 


B. New York 




264,266 


B. Stete 




898^411 


Lynde b. County 




269 


Lyon r. Circuit Jodgo 




01 


B. Jerome 


260,661 


669,695 


::te. 




'498 
224,446 


Lyon'a Caw 




629 



Mabiy b. Baxter 349 

Machette v. W^anleta 408 

Machine Co. n. Gage 608 

Machir v. Moore T72 

Mackaboy v. Commonweallli 604 

Mackay v. Ford 648 

MacoQ V. Hill 263 

E. Macon k Weatem R R. Co. 284 
E. Patty 619, 727 

Macon t Weatem R. R. Co. b. Davia 202, 
218 
Macreadr b. Wotcott 410 

Macy D. Indtanapolit 67S 

Maddox e. Graham 69 

Madiaon Co. b. People 640 

Maditon t Ind. R. R. Co. b. lTorwi<^ 

SaTinga Society 272 

B. Wbiteneck 202, 715 

Magee b. Commonwealth 680 

B. Superriiora 784 

B. Yonns 442 

lAtLgraAnT, Ex porta 821 

B. Governor 188 

Hagnire, Matter of 746 

B.Magiiiie 846,497,406.601,603 

Mahala r. State 401 

Maher b. People 874, 888, 899 



by Google 



TABLD or CASES CITBD. 



H*Iionr.N«wTi»tCeiih«lK.B.Co. 9 
Hfthooj V. Bank of the Suu 2' 

Hiiilen d. Ingenoll 

Main 0. SULte 1S9, 148, 203, 2 

Hallorr r. HUM II 

Ualone v. Clark 6i 

r. Stewart 6: 

Malnj D. Marietta 64, 610, 628, 642, ft 
Haltua B. Shield* 61 

Manchetter, Hatter of 1 

Manley v. Mauler 497, B 

Hanlj t. Balelgh 2! 

V. State 71, 72, 80, » 

Mannins v. Yan Bonn 2: 

Maiti&erd n. Mulntyr* 497, & 

ManiSeld, Ac. a. B. Co. n. CUrk e< 

Hapei B. Weeki G> 

Harbor; n. Madiion i 

March e. Commonwealth 2' 

u, Fortimoutli, &c. R. R. Co. 6 
Harchant v, Langworthy 
Marcy v. Otwego 2 

Marietta v. Fearing 248, 3; 

Mariner v. D;er S 

Marion d. Epler 619, 6: 

Mark d. State 190, 2: 

Market e. St. LonU S 

Marki e. Morris 

D. Pardue Unlvenitj 164, £84, S 
MarUtt V. Silk 

Marlow d. Adanu 4 

Manh i>. Cheitnat 1 

n. ElUworth 64fi, 5. 

B. Folton Co. 270, 2 

r. New York & Erie R R Co. T 

B. Putnam a 

V. Superriion 6 

Uarshail n. Baltimore & Ohio R. B. 

Co. 



V. Grime* 

V. Rerni 7 

s. Silliman 

t>. Vickibars 
Marshall Co. Court v. O 

Court 
Marten v. Van Schaick 

Martin, Ex fwU 

V. Biselow 
t. Broach 
V. Brooklyn 



V. Mott 

r. Waddell 

f. Wade 
Marti n'l Appeal 
Mary Smith'* C**o 
Hasnn, Matter of 

D. Bridge Co. 

0. Haile 



Uawm s. Kennebec, &c. B. B. Co- 6M, 



V. Meisenger 

B. Wait 
Uaiterton v. Mt. Vemao 
Mather v. Chapman 

B.Hodd 
Mathew*, £1 parte 

e. Beacb 
v. Zane 

Matter of Election Law 
Mauch Chunk v. HcGe* 
Maul D. State 
Manll i>. Vaughn 
Mauran v. Smith 
Manrer p. P<?ople 
Manrice e. Worden 
Mazcy v. Loyal 
Mazey e. WilliamwHi Co. 

V. Wiie 
Maxmilian c New York 
Maxwell e. Goetcbiiu 

V. Joneaboro 

V. Newbold 

E. Reed 
May E. Fletcher 

E. Holdrldge 
Mayberry d. Kelly 
Mayer, Ex parte 

V. Schleichto- 
Mayne* v. Moore 
Mayo V. Freeland 

f. Sample 
V. WilBon 

Mayor ». Cooper 

E. Morgan 
Mayor, Ac., Hatter of 

E. Hedbnry 

B. The Queen 

E. Yuille 
Mayor of Annapoli* e. Stat 
Mayor of Hudson v. Tbomi 
Mayor of Hull r. Homer 
Mayor of London's ('aae 



Ca 



inc. Macon &W.R.R. 



Mayor of Mempliia v. WinBeld 243, 2- 

Mayor ciTMobile v. Allaire 241, ^ 

B. Dargan 20, 010, 61 

V. Rouse 2- 

Mayor of New York «. Hyatt 2' 

E. Lord 7- 

f. Nichols 241,248,2' 

Mayor of Savannah e. Rariridge 2, 

V. Sute 172, 2: 

Mayor of Wetumpka v. Winter 1^ 

Mayrant b. lUchanlion fr 

Mayi E. Cincinnati 230, 241, 34£, B- 

McAdoo E. Benbow ' 

McAflee's Heir* e. Kennedy e> 

McAlister v. Clark i- 



by Google 



TABLE OF CASES CtTBD. 



UcAntator c. Hoffmm 
McArthur v. Goddin 
HcAoley o. Boaton 
IfcAunich ,v- MiuiMippi, Jbo. I 



HeCidlert/ b. Gnyer 
HcCkll >. Feuhy 
UcCunpbeU u. State 
HcCuin V. SieiTS Co. 



llcCarthr, Hatter of 

B. Froelk« 

p. Hoffoun 
McCuliD B. Btst« 
ItcCknler D. BrookB 

V. HitrgroTei 
UeCUaj e. LoweU 
HeClaiighrj b. Wetmoi 
HcClincb V. St argil 
HcClond B. 8«lby 
HcClnre v. Oxford 

V. Redtring 
HcCluakj B. Cromwell 
HcColInm, Ex pi 
UcCombiD. 



McGJDit; B. TTew Tork 
McGinnia ti. Stats 

B. WalwD 577, 6' 

HcGlinchf b. Barrowt 
HcGooD V. Scalei 
I HcGowaD B. Sute 
I McQuflee b. State 31 

I HcGuira B. Parker 
> McUane; b. Tnutaei of Schools 
I MclDt;re v. McB««ii 
: McKay v. Gordon 
: HcKean, Ex parte 
I HcKee v. Chener 

V. McKee 2' 

V. People 
V. Wilcox 
I HcKeen B. Delaoer 
McKeona v. St. Lonii 
McKenzie b. State 
McKibUn b. Fort Smith 
I HcKim B. Odom 
McKinne; v. Carrdl 
B. O'Connor 






<. BeU 

B. Gilkey 124 

IfcCoDkle B. Biniu 678 

McCool V. Smith 183 

.IfcCormick d. Fitch 812 

B. Roach 866, 444 

McCoy B. Grandy 480 

B. Hoffman 418 

B. Hicbew 467 

HcCracken B. Hayward 847,848,861,864 

UeCready >. Sexton 464, 046 

B. Virginia 22 

HcCoen b. Lodlam 622 

HcCallocb tr. Uarytand 16, 26, 77, 694, 

696, 6OT 

B. State 9S, 168, 18t, 168, 212, 224 

KeCntcben v. Wlndnr 228 

UcDaniel b. Coirell 114, 128, 473 

HcDermoU'i Appeal 407 

McDonald b. Bowing 661, 740 



B. State 

B. Woodruff 
McDonoogh b. Hillandoa 
M'Elratb b. United Stalea 
HcElroy b. Albany 
HcBlrain n. Modd 
McFadden b. Commoowealth 
MeFarlaod b. BaUer 
HcOatn^ b. Waaon 
McGnu u. Woodrar 
HcOee r. HathU 
HcOebee b. MalhU 61 

McGhfe B. State 
McGilTert B, UoOUfert 40 



40* 



I McKnne B. Weller 

Lnehlin, Ex parte 

'. Slate 
McXaarinB b. Monroe 
M'Lean o. Hngarin 

V. State 
HcLeod'i Cue 
McM*atu B. CartnlchMl 

. O'SoUlran 
MeMaateri b. Commonwealth 
HcUath B. State 
McMerty b. Morriion 
McMillan e. Birch 

V. Boyle* 

B. Lee County 

B. McNeill 
McMillen b. Andenon 
HcMinn v. Wbelan 
McMallen b. Hodge 
McNiel, Ez parit 

V. Coromonweallh 
McPhernm u. Foiter 234, 

B Leonard 
HcRea o. Amerieni 
McReynoldi b. Smallhoase 176, 
McSpeddon t>. New York 
McVeigh B. United Statea 
Meacham b. Dow 

V. FlEchbnrg R. R. Co. 
Mead b. Connty Treainrer 

B. Derby 

r. McGnw 

B. Walker 
Meade b. Beale 

B. Depoty Manhal 
Meagher b. Storey Co. 
Mean b. Commiuionen of 



b, Google 



TAfiLB OF CASES CITED. 



Mechanics' & Trader*' Back v. De- 
bolt in, S40 
D, Thomai 3i0 
Meddock u. WillUmi 466 
Hedfoni 0. Learned i6G, 406 
Meeker i>. Van RenHeUer 722, 740 
Megnire v. Corwine 1ST, 778 
Meighen v. Strong 467 
Meister v. People 413 
Helini's Appeal 133. 442 
Hellen «. VfaiUro H. R. Corp. 073 
Memphi* D. Bolton 704 
V. Fiiher • 480 
B. Water Co. 487 
V. WinQeld 243, 247 
Memphli, &c. R. B. Co. n. Pa^ne Bfi7 
Memphis Freight Co. e. Memphli 067 
Menard Co. b. Kincaid 444 
Menuha v. Hazard 271 
Mendola d. Thompioo 311 
Meogei a. Wertman 468, 46S, 468 
MeDsendorf c, Diryer 691 
Mercer v. McWilliania B94 
Merchant!' Bank c Cook 290 
Meredith v. Ladd 167 
Meriwetlier ». Osrrelt 230, 231, 232, 293 
Merrick v. Amherat 264, 284, 611 
V. Van Santvoord 152 
MerriSeld c. Worcester 260, 267, 810 
Merrill i>. Humphrey 616 
V. FlainOeld 260, 202 
V. Sherburue 111, 116, 440 
Merrin v. Farri* 010 
Mersbon v. State S8T 
Mer«in o. Ballard 467 
MethmeierD. Slate 189,146,213,222,720. 
721 
17 



Methodi«t Church v. Ellii 

i>. Wood 
Metropolitan Board v. Banie 



B, 718. 
719 

0. HeiBter 240, 722, 742 

MetKpoliian Gaa Light Co.,Matl«r 

of 176, 179 

Metzger, Matter of 428 

Mewherter v. Price 176, 180 

Mejer v. Ktuacatine 260 

Me^en r. Cliicago, R. I. & P. Co. 246 
Miami Coal Co. v. Wigton 656 

Mlchalei v. Hine G06 

Michigan Slate Bank v. Hutingi S38 
Mlddlebrook b. State 391 

Mid<]lebrooki v. Tni. Co. 23 

Middleport r. In*. Co. 179 

Middlelon v. T«we 188 

Middletonn, Matter of 170 

Re 216 

Mifflin IT. Railroad Co. 079 

Milam Co. [-. Biteman 291 

Milan, &c P. R. Co. t>. Hoited 340 

Mnburn, Ki pane 426 

D. Cedar Rapid*. &c. R. B. Co. 686 



MUea B. CaldweU 




1» 


V. Stale 




820 


Hilhau 0. Sharp 284, 218, 263, 268, 677 


Milhollaod r. Bryant 
MillBdgeville V. Cooley 




761 




810 


Millen V. Anderson 




16 


Miller V. Birch 




743 


V. Craig 




741 


r. English 
p. Gable 




578 




677 


V. Graham 




470. 472 


V. Orandr 




aai, eos 


V. Hurtord 




186 


V. Max 




100 


V. Miller 




441 


tr. New York & Erie B. B. Co. 712. 714 


p. NichoU 




17 


B. Parish 




623 


-..i-x. 




3^ 




770 


». State (3 Ohio) 


90, 


163, 164, 168, 



(8Iiid.) 
{16 Wall.) 
V. Trooat 

MHIer*! Case 

Miller's Executor o. Miller 



GOO 



Mllliken t>. City Cooncil 240 

Mills, Matter of 412 

V. Brooklyn 256, 801. 809 
D. Chftrletonl77,17e,229,286,408,806 

V. Cook 612 

V. Duryea 24 

B. Gleaeon 238. 234. 640 
t. Jeffenon 



400 



I 369, 
606 



t. Clair Co. 
t>. Williami 230, 81 

Milne i>. Daridson 
Milner p. Fensacola 
Milirard v. Thati-her 
Milwaukee v. Gross 2^ 

Milwaukee Gm L. Co. v. Steam 

Gamecock 
Milwatikee Ind. School i>. Superriso 



Milwaukee Town v. Milwaukee Cily 282 
Miner b. I>etroit Post & Tribune 600 

Miners' Bank v, Iowa 34 

V. United States 127, 838 

Minnesota t>. Toung 121 

Minor v. Board of Edacation 681 

V. Happersett 14, g7, 38, 83, 402. 768 
Minot E. West Roxbury 167 

MisslHlppi Mills t>. Cook 90, 612 

Mississippi Society v. Mnsgrove 338 

Mitsisiippi R. R. Co. t>. McDonald 



MiMouri V. Lewis 
Mitchell B. Burlington 

V. Deeda 

B. Harmony 

B. Illinois, &c. Coal Co. 

D. Tlbbetti 
i>. Williams 



14,482 



by Google 



TABLE OP CASES CITBD. 



Utchell'* CsM 409 

Hitht^D. CuToUton eOl 

Uoberly c. Preaton 623 

UobU« E. AlUire 241, 242 

». Dargan 29, tilO, 620 

0. KimbaU 601, 724, 726 

o. RouM 242 

V. Yuille 245, 847, 744 

Mobile & Ohio R. R. Co. v. StaU 1&4, 

196, 197, 212, 216, 217 

Uoers V. RMaing 83, 142 

Uolwn V. JackMm 748 

Hohawk t HodaoD R. R. Co., Hatter of 98 

M^awk Bridge Co. d. Utica t Scb«- 

iwctadT R. R. Co. 490 

Huk e. Detroit, tc AhocUUoo 182 

Himday v. Rahway 108 

Honey n. Leach 368 

Uooford V. Barney 607 

HunoDgabela NarigBtion Co. r. Coout 672. 



776 

V. Hoffman 246, 740 

UoDlee V. ConuDOD wealth 897 

MoDtsomery e. Deeley &22 

E. KasioD 8S3, 34G 

E. Hobson 4e& 

E. Mereditli 4&7 

V. State B97, 673 

HontcomeiT Ca e. Ekton 698 

MoQticeilo Bulk e. Coffins Orave 226 

MtMitpelier v. £att Monipelier 231, 

Hootpelier Academy v. G«orge 

Hooar v. Harrey 

Hoodalay v. Eait Indian Co. 

Moody V. State 167, 16% 184 

Moon E. Darden 

Moor E. Luce 

Moore, Ex partt 

Matter of 

v. Can 

V. Detroit LocomotiTe Works 

E. HoDiton 

E. Eent 

E. Kestter 

p. Maxwell 

D. Meagher 

D. MioneapoUa 

E. Moore 
V. New Oriean* 

E. Railway Co. 
V. Saubome 738, 729 

E. Smaw 648 

E. Slate 823, 849, 878 

». StepheiiMB 674 

HaraaE-CommiMJODencrfHiamtCo. 270, 
271 



202,218 
402 

778 



Morey e. Newfane SOS, 306 

Morford e. Unger 141, 174, 176, 187, 473, 

604, 611, 621 

Morgan d. Beloit 293 

D. BufflngCon 11)7 
B. Cree 160 

E. King 32, 691, 728, 720 
V. LiringBton 522 
V. Plumb 60 
E. Quackenbuah 783, 787, 788 
D. Smilh 161 
V. Bute 889 

Morreli v. Dickey 601 

V. Fickle 222 

Morril B. Hunee T78 

Morrill V. State 614. 744 
Morril E. Barkley 

V. Stale 

V, YKnlsDingham 
Morril & Essex B. R. Co. v. Newark <. . _ 
Morril Canal &, Banking Co. e. 

Fisher 272 

Morriion v. VDooMid B90 

D. Springer 202, 764 
V. State 387 

Horrisiey t'. People 161 

Morrow v. Wood 227, 417 

Morse c, Boston 310 

V. Goold 64, 319, 850 

Morton, Matter of 371 

E. Sharkey 440, 461 
II. Sims ' 707 
B. Skinner 28 
V. The ControUer 174, 177 

Mortun v. Valentine 361 

Mow V. State 389 

Moseley e. Slate 401 

Moser u. White 116 

Uoses E. Pittsburg, Fort Wayne, & 

C. R. R. Co. 686 

MoBe« Taylor, The e. Hammoua 25 

Hosier d. Hilton 178 

Hott V. Comitock 622 

B. Dawion 544, 666 

t>. PeniwylTania B. B. Co. 150, 161. 

Motz V. Detroit 816, 481 

Mouiton V. Raymond 607 

V. Scarborough 267 

Hount E. Commonwealth 401 

Mount Caraiel v. Wabaih Co. 231 

Hount Pleasant v. Beckwlth 232, 293 

D. Breeze 234 

Mount Wasbington Road Co.'i Peti- 
tion 668, 607. 70S, 704 
Hounts D. State 400 
Mower b. Leicester 299, S03 

B. WatsoD 647, 549 

Moiley E. Ragan 217 

Mover o. Slate Ca U 

Muhlenbrinck v. Commiisioneri 246, 
246 
Hnllinex v. People 897 



by Google 



TABLE OF 0ASX8 CITED. 



HoDdt V. Sbebofgui, ic. 


R a. Co. 68, 


Ncliger B. DaTenport 


767 




170 


N«ifing B. Pontiac 


178 


Uundj V. Mimroe 


216,366 


Neill B. Eeew 


408 


HODMT r. ToD»™idm E. R. Co. 6U3 


Neh> B. State 


897 


MunlciMUtj V. Blue 


7-i7 


Nelaon b. Allen 


C3,4S0 


^TCutiig 


744 


B. Bonibeniui 


622 


». Dunn 


630 


p. Cheboygan Na». Co. 


731 


». Wheeler 


828 B. Gone " 


M 


B. White 


BI9, 832 B. MiHord 


360,260 
478 


Muon e. IlUnoU 14, 26, 202, 706, TS6, TST | e. BouDtree 


r. People 


786, 7Sa 1 B. State 


SOS 


B. PitUburg 


811 ! Neibitt B. Tnunbo 


6C8 


HaiuoD ». UungerfoTd 


728 Neimilh B. Sheldon 


20 


HarpW '■ Menud 


176 Nevini B. Peoria 


sua 


Murphj,£x parte 


780 Newark Ssringi Bank d. Furman 849 


-.ChiMBO 


SSI "•" ^aZ^- »■ 


E.CO. B. 

716 


V. CommoDwetlth 


801 V. HcNamara 


716 


D. DirectoM 


227 B. O'Daily 


674.684 


t.. People 


473 B. Tilton 


708, 716, 718 


V. SQLEe 




Ge,60 




368 , New Boeton. Petition Of 






240 




688 „ Newby v. Platte County 
490 I Newby'. Admr'o b. Blakey 


702,708 




449 


p. McQutj 


22 Newcastle, 4c. R. R. Co. 


El. Pern & 


e. Heaifee 


672, 676 Indiana it. R. Co. 


662 


e. Shsrp 




24 




664 


Murtaugh i: St. Looii 


304 1 Ne-cum b. Eirtler 


781, 785 


Mtugrove d. Vicktburg 


444 NeweU B. Newton 


600 




466 B. People 
WatU 19 B. Smith 


67, 68, 70 


MQtual Auurance Co. v. 


664 


Mut. Ben. Life lu. Co. v 


Elizabeth 468 B.Wheeler 


646 


Kjm V. EnglUh 


09, 20:^ New Jeney v. WUMn 


160,840 


V. AUnbattu) Bulk 


86 F, Yard 


iun 


p. Pwk 


486 Newlaad v. Manh 110. 302. 218. 221 


B. People 
Myg»tt..V«hban, 


162, 212 New London v. BraiiMrd 


283,261 


020 < Newman, £zparf< 


202,228 


Ujtitk V. amMej 


64 P.Ashe 


268 


cLaCnrnM 


A16 New Orleans e. Cannon 


430 






V. Caielaer 


623 






V. Clark 


260,280,284 


N. 




V. De Armaa 


17 






r. Dubany 


613 


NMhTille f. AUboip 


317 


B. Forchy 


637,640 


r. Nichol 


362 


B. Home In.. Co. 


618 


B. R»y 


284 


B. Kaufman 


614 


NMhviUe, fa:. B. B. Co. r 


Hodeet 638 


B. Miller 


248 


Matiooal B«nli i>. Common wealth 697 


B. People'. Bank 


687 


D. United Sutee 


606 


B. Poull 


S2S 


V. T.nkton 


84 


V. Saring. Bank 


614,630 


Nitioim TrMt Co. B. Murphy 16B 


V. Sontliem Bank 


188 


Nfttion) B, JohnioQ 


408,600 


V. Stafford 


744 


NMMOt« B. PesTca 


304 


B. St. Rome-. 


98 


Maylor r. Field 


188 


e. Turpin 


229 


N. C. Coal Co. r. 0. C. Coal * Iron 


Hew Orlean., **. R. R. Co 


B.Giy 666, 


Co. 


77 




693 




733 


r. New OrieaiM 


204.676 


Keal .7. Delaware 


14, 29, 762 




V. Green . 


10 


Newwm r. Cocke 


218 


Nea» B. Mercer 


861 




768 


Nebnuta v. Campbell 


804 


B. Greenwood 


444 


Neel B. State 


301 




884, 430, 476 


Heeleyr-HeniT 


217 


r. NeweU 


76^766 



b, Google 



TABLE OF CASES OITBD. 



KcvTork, Hatter crf'Haror, Ac. of 619, 
639 
c. Pune SOI 

r. UvftU 2¥2 

V. LoTd 740 

w. Miln DOS, 726 

V. KichoU 241, 243, 248 

D. Bno 229 

0. Becood Ave. R. B. Co. 245, 251, 

614 
V. Williviu S47 

H«w Tork Central, Ac B. B. Co. v. 

Gaaliglit Co. 342, 669 

N«w York, Ac B. a Co. 0. New Tork 268 
p. Vw Hom 216, 287, 460 

N. E. Screw Co. v. BUveu Ifi 

N. Y. A Harlem R. B. Co. r. Elp 667. 668 
p. New York 266, 677 

NiecolU V. RogB 678 

Nidiol V. Nuhrille 142 

Nlcbt^ Hatter of 860, 4S6 

D. Bertram 338 

1. Bridgeport 610, S29, 664, 708, TU 
v. Griffln 134 
B. Gor 622 
0. Modgett 772 
V. School Diiecton 680 
V. Somenet, &c B. B. Co. 694 

HicholMMic. B. T. ftfi.H.B.B.Co. 681, 

MiekerMB n. Boetm 784 

c Howard 416 

KtaAty r. St. Clair 271 

Nicolll V. IngerM^ 417 

Mighiingale, Petitioaer 246 

E. Biidgea 438 
KiKhtingde'i Case 744 
Nimi V. Troy RIO 
Noble r. Bichmond 804 
Noel *. EwiDtr 183, 442 
Nolaa V. State 400 
SaliD B. FrankUn 748 
Nomaqua v. People 800 
HoomaD e. Albanj 310 

V. OrtoD 6'i6 

p. State 32 

Norfolk V. Ellis 619 

Norman v. Cnny 177 

B. BeUt 484, 441, 467 

Nonii, Ei paru 762 

V. Abingdon Academf 202, 33T 

P. Beyea 443, 466 

e. Boettm 212 

V. Cljtaei 68, 121, 124 

V. Crocks 471 



North CaroUna, &«. B. B. Co. v. Car. 

Cent. Ac B. B. Co. 6 

Northern Indiana B. B. Co. n. Con- 
nelly 618, 619, 629. 6 
Northern Ltberties v. Gm Co. 'J. 
V. 8l John'i Church 6 
Northern B. B. Co. o. Concord R. R. i 
North Bempatead v. Hempetead 240, 2 
NorLh Miiraari B. B. Co. v. Gott 6 
I. Lackland 6 
J. Maguire 26, 3 
North weitem Fertilith]g Co. v. Hyde 

Park 77, 7 

North Tarmonth c. Skillingi 2 

Norton v. Dougherty 

r.Ladd 6 

1. Pettibone 4 

Norwich V. Coastj CommiBsloDen % 



ItoDipha 
Harrta 



V. Newton 4 

p. Vt. Central B. B. Co. 662, 673, 6 

Norriatown e. Rtzpatrick 2 

p. Wreuthall 3 

Noniilowii, &c Co. v. Barket G 

North & 8. Ala. B. B. Co. p. Morrfi 4 

North CiroUoa Coal Co. r. Coal & 

Iron Co. 



Norwich City 



Norwich Gae Co. v. 

Gai Co. 
Norwood r. Cobb 
Noognei v. Dougltai 
Noyea b. Buiiert 
Nugent p. Slate 
Nnnn o. Sute 



0. 

Oakland d. Carpentier 260 

Oakley d. Atpinwall 86, 610 

Gate* D. National Bank 20 

Oatman v. Bond 363 

O'Baiuion e. LonisTille, Ac R. B. Co. 461, 
716 

O'Brlan r. Commonwealth 400 

O'Brien v. Commoawealth 889 

9. St. Paol 673 

O'Conner p. Wamer 114 

O'Connor p. Pittiburg 262, 673, 706 

O'Donaghue u. McGorern 6S6 

O'Dorwelt d. BaUey 340 

CFenall d. Simplot 443 

O'FerreU b. Colby 763 

Officer D. Young 467, 466 

Ogdea V. Blackledge 111, 114 

D. Riley 622 

V. Saunden 76, 83, 219, S2S. 347, 848, 
849, 361, 368, 462 

p. Strcnx 68, 71 

O'Giady o. BamhUel 646 

O'Hara p. Carpenter 270 

r. Slack 677 

Ohio, &c B. B. Co. p. Bidge 3S7 

Ohio A Lexington B. R. Co. p. Apple- 
gate 687 
Ohio A M. R. R. Co. p. Lackey 128, 466. 
716 



O'Kane v. Treat 164, 626, 610, 645 

O'Kelly r. Athena HaunL Co. 446 

0'B«Uy p. WiUiam* 443 



by Google 



TABLB OF CASES CITBD. 



OImoo d. Oreen Baj, Ac. H. B. Co. 140, 

184, 218 

OHre D. Ingnm 749 

Olirer, /n r« 146 

0. McQure 116, 348 

e. HemphU, &c. R. R. Co. 34T 

e. Steigliu 153 

v. Wuhinghn HUU 492, 803, 603, 613 

D. Worceater 308 

OUver, Lee, t Co.'* Bank, Hatter of 43, 

47, 76 

Olmitead v. Camp 864, 686, 668 

Olmated p. Miller 623 

Olney n. Harre^ 281 

Omaha If. Olraitead 311 

Onail D. Craig 217 

Onslow e. Hocw 610 

Opiniona of JoiticM (16 He.) 134 



(16 Me.) 
(38 He. 
(46 He.) 
(62 He.) 
"8 Me. 



Oaborn T>. JaiM* 4 

V. HobUe 9 

V. Nicholaon S47, 8 

IT. 8Ut« 3 

B. United Sutei 1. 

V. United Slatei Bank 17, 6: 

Oaborae v. Hamphrej 8 

Oibum tr. Stale; 168, SOS, 2 

OlcailTan c. Aioei Co. H 

Otwald'i Cue S 

Otken D. Lamkin 2 

Ottawa L-. Paople 1 

v. Bpencer T 

Ottamwa c. Schwab 7. 

Ould D. Richmond 230, 618, C 

Our Hoiue v. State 7! 

OTentreet v. Brown 4! 

OYiatt V. Pond 7: 

Owen D. Jonian fii 

e. State 4: 

Owingi V. Norwood'i Letiee 16. 

Ownen of Ground e. Albany 6i 

Ownen of the Jame* Gnj b. Ownen 

of the John Fnuer 7! 



278 
209,607 



(62 Me., 

(6* He.) 766,783 

(4 N. H.) 

(41 N. H. 

44N. B. 

46 N. H.) 186, 764 

(62 N. H.) 163 

(63 N. H. 788 

(66 N. R) 169 

(8 R, L) llfi 

(7 Ha».) 768 

(16 Maal,) 768 

18 Pick.) 88 

jl Met.) 162, 766 

(6 Cuih.) 40 

99 Man.) 186 

116 Ham.) 749 
(117 Mmi.) 78, 884, 784 

1124 Maaa.) 763 

37 Vt.) 764 

80 Conn.) 764 

49 Ho.) 62, 64 

56 Ho.) 141 
Orange, £e. R. B. Co. v. Alexandrta 638 

Ordineal v. Barrv 167 

O'Reiler v. Eankakee Co. 688 

Oriental Bank v. Freeze 4*6, 474 

Onnlchund c Biu-ker 691 

Ormond v. Martin 480 

Orrosb; e. Douglat* 627 

Orphan Honie tr. Lawreoce 61 

Orr V. Quimbf 696 

V. SkoOeld 623 

Ortman d. Greenman 195 

Orton u. Noonan 466 

Ortwein r. Commnnwealth 876 
Oiage, &c. R. R. Co. v. Horgan Co. 272 

Oabom V. BaK 187, 668 



Pace n. Borma 
Pacheco v. Beck 
Pacific Ini. Co. v. Sonle 
Pacific R. R. Co. v. Chryrtt) 



u. Gove 

V. Haguire 42, 8 

Packet Co. v. Keokuk 6 

V. Sicklei 

E. St. Louil 6 

Pacquette b. Picknew 4 

Padmore e. Lawrence 646, G 

Page, Ez partg 4 

E. Allen 7 

E. Commonwealth S 

E. Fazackerl; 247, 7 

E. Fowler 

D. Hardin 4 

D. Uatbew'a Adm'n 1 
Paine d. Wright 

Paine'i Caie 6 

Palairet'i Appeal 8 

Pa1fre7 r. Boaton 6 
Palmer v. CommlHloneri of Cxijtr 

lioga Co. 36, 7 
V. Concord 631, 669, 6 

r. Fitia 293, 2 
V. Lawrence 

E. Napoleon 6 
E. Smith 6 
u. Stumph 019, 680, 6 

Palmer Co. b. FerrlU 7 

Palmore v. State C 
Pan^born p. WeatUke 

V. Yoang 1 

Parii r. Maoon 

Fariih v. Eagrer 4 

Pariah of Bellport B. Tooker G 



by Google 



TABLE OP CASKS CITBD. 



Vazk Comm'n o. ConHDon Council 45 

Parker i>. Bidwell 417 

e. Commonwealth ISO, 146, 148 

V. Catler Mill-dam Co. 733 

B. Hett 750 

«. Eubbud 183 

r. Kane 19 

V. HcQoeeo 601 

V. Uetropolilui B. B. Co. S41, 714, 

782, 738 

B. MilMun Ca SIS 

B. Phetleplace ID 

B. RedBeld 840 

B. SmTage 71, 850, 446 

r. School District 226 

V. Sexton 016 

V. Sbannonhonse 444 

r. Sanbur; & Erie B. R Co. 488 

PukiiM'a Cue 406 

Parkiiuon b. Sute 71, 177, 188, 191 

Fuka, Ex parte 425 

v. Boaton 702 

B. Goodwin 93 

Panaele B. Thompson lit) 

Parmelee u. Lawrence 18, 445, 450, 46S 

Fanniter p- Conpland 673 

Partoat r. Bangor 764 

B. Caier 349 

D. Ooahen 262. 203 

B. Howe 060 

B. Roaiell 432 

I^achal V. Perei 848 

I^achall V. Whiiaett 444 

FainiiKer Casea 700, 726 

Patch r. CoTington 266 

FUICD B. People 375 

Patlertim b. Barlow 53, 757 

r. Commonwealth 709 

B. Keotncky 11 

B. Mi«ci«>ippi, £c Boon Co. 661 

V. Philbrook 444, 457. 470 

v. Society 140, 141, 230, 688 

V. Wilkinaoa 623 

B. Winn 82 

Pattison B. Jonea 626 

B. Taba 68, 142 

TMoa B. Slephena 262 

PmiI B. Detroit 607,671 

B. Vitflmia 22 

e. HazelCon 22 

Fawlet r. Clark 291, 888, 337 

Pawling B. Bird'* Gxccuton 28, 497 

B. Wilaon 600 

Paiaoa v. Sweet 727 

Faroe V. TMadweU 204, 464 

Fayioo d. Payion 41)7 

F«abod7 0. School Committee 169 

Pearce c. Atwood 32, 608 

s. Olnej 24 

V. Patton 460 

Pearaall b. Kenan 460 

Pearae ». Horrioe BO 

Pearaon b. Portland 482 

B. Tewdidl 16, 436 

PeMe B. Chicago 281 



Pease v. Peck 19 

Peavey v. Robbina 776 

Pea; V. Duncan 6U 

V. Little Rock 680 

Peck D. Batavia 806 

B. Freeholders of Euex 608 

B. Hotcombe 761 

B. Lockwood 248 

B. Wtddell 140, 709 

Peddicord b. Baltimore, &c. It. R, Co. 679 

Pedrick v. Bailey 243, 347 

Peebles v. Couct; Commiiiioner 788 

Peerce b. Carakadon SIS, 821 

Peer* d. Board of EducsUon 226 

Peele d. Morgan 602 

Peik V. Cliicago, 4c a R. Co. 787, 738 

Pekin b. Breretoo 810, 074 

B. Reynolds 269 

B. Winke] 810, 074 

Pemble d. ClifEord 32 

Pendleton Co. p. Amy 270, 271 

Penliallow d. Doane'i Adminiitrator 8 

PeniniuU R. B. Co. b. Howard 611 

Penn v. ToliiBon 42, 43 

Penn's CaM 394 

Penoiman'a Case 360 

Pennoyer v. Neff 16, 436, 436 

Pennsylvania Co. c. James 246 

Pennsylvania Hall, In re 288 

PeoDsylvanta R. R. Co. b. Canal 

Commissioners 468 

Commonwealth 



n. Heist 



708,704 



V. Lewis 




716 


B. New York, &c. R. R. 


Co. 


676 


B. Rlblet 


201, 716, 718 


Pennywit d. Foote 




24 


Penrice o. Wallace 




708 


Penrose v. Erie Canal Co. 


34S 


S52 


People 0. Alameda 




284 


t^ Albany. 4o. B. H. Co. 




786 


... Albertson 45, 78, 202. 208, 312. 835 


V. Allen 86 


93, 176 


226 


V. Auditor-General 




346 


V. Austin 




608 


B. Bi^er 


24 


498 


r.Bu)g* 




751 


B. BanTard 




336 


». Barrett 




400 




287,294 


308, 
609 


V. Bates 


763, 770 


777 


V. Bennett 




606 


B. Bircham 




187 


D. Bissell 




138 


V. Blake 




78 


„. Blakely 




408 


B. Blodsett 68, 7», 220 
B. Board of EdacaUon (66 Cal.) 


764 
226 


(101 BL) 




484 


(IB Mich.) 




484 


(13 Barb,} 




226 


B. Board of Regiilntllon 




784 






2!tl 


B.B «»],&& of Nankin 




784 



b, Google 



TABLE OF CASES CITBD. 



pie V. BoitoD, &o. B. B. Co. 788 


l^ople D. Fuber Matiiew Sooie^ 176 


D. Bowen 186 


V. FerKUjoD 
V. Finby 


766,766 


r. Bwidjr 23, 488 


877 


V. Finnigan 


897 


B. BreDkbm 237, 76» 


V. Fialier 


206 


n. BrlRB* 171, 179, 212 


o. Flagg 


221, 284, 609, 611 




V. Flanagan 


886 


B. Briilin 1T7 


r.Ford 


412 


p. Brooklrn 286, 288, 696, 618. 619. 


w. Freer 


569 


627, B82, 693, 694 


r,Fri»He 


116, 486 


V. Brookljn CommoD CunneU 749 


D. Gallagher 


206, 207. 720 


0. Brown 746 


e. Oarbutt 


877,899 


0. Bull 78, 213, 334, 836, 749 


V. Gaidoer 


162 




t. Gate* 


690 


V. Burt 163 


V. Gerke 


16 


B. Butler 831 


c. German, 4c 


Cliurch 678 


V. C«mpbeU 96, 168 


P. Gie. 


79,609 


V. C«n«day 758 
V. CbubI Appraiun 691 


0. Gilbert 


462 


c Goodoia 


401,786 


r. Canty 287 


D. Gordon 


77« 


r. Carrigue 748 


V. Governor 


188, 192 


V. CmmUi 423 


t.. Gray 


270 


E. Chicuo 209, 278, 286, 287, 294, 469 


t>. Ore^n 


82, 834. 696, 696, 718 


■>. Cbung iih Cliue 389 


r. Hall 


169 


V. Cicott 68, 607,731,763,766, 797.769, 


V. Hanifan 


748 


776, 779, 780, 786, 788, 789, 791 


V. art veil 


98. 237, 769, 779 


V. CUrk 188 


«. HukeU 


886 


n. Cluta 780 


V. atcb 


168,186 


0. Coleman 22, 64 


V. Hawe* 


288 


V. CoUina 189, 146 


B. Hawley 


720 


0. Colroan 638 


V. Hayden 


696 


V. CofflmiMitmera (69 N. T.) 343. 391 


V. Hennexej 


S88 


(4 Wnll) 697 


-.-.^sr 


766, 777. 778, 786. 788 




212 


163, 164, 160 


p. HilUard 


788 




■>. Hoge 


100 


p. Common Council of Detroit 288, 


r. Bolden 


766, 761, 788 


287. 281, 809, 313, 606, 609 


B. Holley 


93 


V. Comatack 395 


■>. Hubbard 


866 


V. Cook (UBarb. andSN. Y.) 89,763, 


V. Hnrlbut 48, 


164, 175, 177. 209, 227. 


764, 787, 770, 777, 788. 




22B, 288, 294, 308 


786. 788 


i: Imlay 


22 


(10 Mich.) 400.401.766 


.-. Ingenoll 


887,847 


••. ComiDK 896 




f. Count; Bona of C«a 269 


B. Jack,on Jb M 


ichigan PUnk B. 


p. Corer 788 


Co. 


338.866,712,718 


v. Cowle. 101, 237. 759 


V, Jenkint 


727, 788 


c. Croa«eU 398 


D. JenneM 


693 


V. Curti. 28 


D. Jonea 


866, 783, 786 


V. Daniel 108 


D.Kane 


751 


V. Dawell 24, «7 


e. Keenan 


111 


r. Dayton 83 


V. Keliey 


229 


t.. Dean 487 


t>. Kennedy 


768 


V. Denahy 177, 180 


D. Kent County Canraaieta 771 


V. Devino 889 


V. KetT 


672, 682, 681, 687 


r. DeTlin 166 


r. Kildnff 


760.763 


V. Dill 396 


». Kniikem 


697 


D. Doe 98, 608 


p. Koeber 


SOS 


V. Danahne 28 


B. Kopplekom 


767 


V. Draper 67, 107, 204, 206, 228, 229. 


r. Lake Co. 


99 


230,708 


B.Lamb 


89» 


V. Doboia 885 


p. Lambert 


883,868 


B. DuiJley 176 


V. Lambier 


490 


D. Eddy 611 


e. L.wrence U, 98, 171, 212, 223, 260. 


17. f ancher 101 




262 



b, Google 



TABLE OF CASES CITED. 



People *. Lippiiwott 



asu 


467. 472 
169. 163. 164, 172. 174, 




183. 168. 204. m. 043 


UuhMUn C«. 337 


Mwtin 


768 


HattMon 


763. 769, 786. 788 


JUyi-rd 

Hk;«onii 
HcAduDi 


87, 288, 811, 776 
765 
680 


HcCallum 


174, 177, 188 


HcCtum 


176, 178. 377 


M<£r«er7 


284,041 


HcDonneU 


376 


McOowu 


400,402 


MciUr 


890 


McElimer 


78,336 


UcMahon 


882,384 


HcHmniu 


764, 768, 777, 778 


Mclfe.17 


401 




100.665 


Medical SoctotT of Brie 249 


HeiteD 


175 


H«rcrin 


427 


HeniU 


161 


HitcheU 


464,470 


MoUiler 


780 


Horrell 


67,107 


Honii 


209,881,292,807,886 




830 


MolboUsiid 


247 


Morphj 


380 


H>ii»7 


316 


N.lly 


141 




661 


487 


New York 


34% 649,661,712.783 


NkboU 


646 




748 


N.Y.CMt«lE.E.C(.. 68.7180. 




306. 307, 323 


O^rien 


179 


Oldutud 


830 


ftrkw 


68 


Pom 761. 


7®. 763. 766, 769, 776. 




783, 789. 790, 791 


Peck 


93 


S5fc 


380 
383,781 


PiM 


897 


PinkOTton 


28 


^i^lScMd 


230 

468 


PUtt 


184,383 


Porter 


888, 689, 758 


PMter 


79 


Power 


380, 284, 288, 836 


Pritchud 


183 


pBdy 


68,71,70,80,94.185 


Q-w 


176,184 



People u. BaitaoMl Co. 607 

V. Raymond 78, 336 

r. Reed 78S 

s. Renuelaer, tc R. R. Co. 197 

r. RoberUon 784, 786, 738, 788 

v. Bocbeater 176, 216 

V. Roe 727, 788 

D. Roper 841,474 

«. Ro;al S96 

V. Bncker 107, 193. 206 

B. RugglM 586, 686, 687 

v. Ruraier 100 

V. Runkel 98 

D. Sackett 786 

V. Salomon 141, 147,224,312,608, 776 
V. Sandenon 749 

V. SaztoD 764, 706 

V. Schennarhom 89 

V. SchiTTer 877 

V. Seaman 764, 766, 766 

0. Seymour 461 

V. Smith 878, 496, 668. 669 

V. Springwelli 812, 610 

V. Stante 06, 96, 168, 168 

V. State Auditor* 474 

K. SteTMi 243 

B. Siewan 897 

B. Stout 189, 144 

t. SuUiTan 280, 374 

V. Superriior, &c. (16 Mich.) 273 
V. Superriior of ODondaga 1S4, 369 
V. Superriion 270, 784 

e. SuperriwHi, &c. (20 Mich.) 470 
t>. Snperruon of Cbenango 94, 16S 

472,630 
«. Superriion of Columbia 276, 466 
V. Saperriion of £1 Dorado 270 

B. SuperTiion of Greene 784 

B. SaperriBon of La Salle 68. 88 

B. Superviion of Mew York 110, 112, 

114.388 
B. Superriion of Onondaga 184,269 
D. Saperviion of Orange 107, 202, 

207,221 
V. Rnperriton of Sa^niw 604 

B. Superviaon of San FranciMO 384 
0. Tallman 696 

■>. Tappan 294 

B. Tauwetl County 269 

F. Thacber 763 

0. Thayert 896 

V. Thoraaa 882, 388 

V. Thurber 22, 614 

V. Titdale 766, 766, 767 

0. Tompkini 93 

e. Towurcnd 620 

B. Townibip Board ofSalem 265, 487. 
604,611,666 
B. Toynbee 207 

n. Tomer 866, 860 

F. Tweed 280 

V. Tyler 386, 401 

V. United SUlu 698 

V. Van Oere 783, 786, 788 

B. Van Ept 499 



by Google 



TABLE OF CASES CITED. 



pMple r. Vu Honw I 

p. Vmn Slyok J 

>. Videto S 

e. W«iW 7 

p. Wftllaoa M, 1 

e. Walib i 

V. Wand* ] 
V. Webb 400, 401, 1 

V. WeinenbMh 4 

p. Wbitmmti ; 

p. Wliyler 6 

D. Willianu 1 

t. wiUM* 1 
D. WilMO 890, 669. 7 

r. WorthiDgtou t 

e. Wright lOT, 1 

e. Tatw 1 
r. YouM 108, S 

Peorik r. CaJbonn 248. S 

f. Kidder 619, B-2B, ti 
Peoria, &c.li.R. Co. c.Peorlft,&c Co. B 
Peoria County b. flarrey e 
Percy, in n 4 
Perdue v. Burnett t 
Pereleu d. Watertown 4 
F«kia> V. CorbiD ! 

F. Grey 4 

V. Uwit i 

tr. Milford i 

V Mitchell t 

v. Perkioi 4 

Ptmtt 0. New Orieani Unlet £ 
Feirine r. Chenpeake t Delairtre 

Canal Co. 4 

B. Farr S 
r. SeiwU 

Perry p. Kmne ! 
p. Lewii 

p. Mann I 

V. State 4 

B. WaihbDm I 

V. Wheeler E 

o. Whituker 1 

Perry'i Case 823, E 
Feraoni n. Jonei 

Peru B. French S 

PeXerfleld v. Vlcken S 

Felennen v. Hutinft 1 

Peteri b. Iron Mt R. K. Co. 711, 7 

Petenburg e. Metzker i 

Petenilea f. Stone 7 
Peter«on v. Lolhrop 
Pettibone d. La Crowe ft bfilwaakee 

R. R. Co. 6 

Fettigrew p. EvaniviUe 6 

Petty p. Tookec E 

Pharii V. Dice S 

Pbelps V. Goldthwaile 7 

r. Meade (1 

p. Phelpa S 

P. Hacey 7 

R Schroder 7 

Philadelphia p. Commonwealth 4 

B. Dickion t 

V. Dyer i 



; PhiladelphU p. Fox 230,281,906 

P. Miller ai6 

p. Rule 630 

P. Scott TOe, 734, 740 

P. Tryon 634, 727 

Philadelphia, Ac R. B. Ca r. Bowen T18, 

738 

B. Quigley 636 

Philadelphia ft BeadinK R. R Co. p. 

I Tei*er 706 

I Philadelphia ft TreDtoo R, R. Co., 

Caae of 679 

< Philadelphia Amoc, &c. p. Wood 625 

1 PhUipt r. Bury S07 

Philleo p. Uilei 612 

! Phillipi p. Allen 249 

p. Berick eo 

p. Bridge Co. 177, 179 

p. CoTington, &c. Co. 177 

p. Dunkirk, &c. R R. Co. 653 

p. People 248 

p. SteTeni 016 

p. Wickham 688 

p. Wiley 623 

Phillpoti p. Blauiel 69 

I Fhinuy c. Anguica 810 

' Phippa p. State 783 

I'hteniz Ini. Co. e. Allen 411 

D. Commonwealth 22 

; Halt p. People 777 

' Pickett p. School Diitrict 226 

Picquet, Appellant 116, 485 

Piek p. Chicago, ftc. R. R. Co. 714 

I Pierce p. Bartnim 722 

p. Be<4 236 

B. Hubbard 60e 

p. Kimball 445, 746 

p. New Bedford 256 

B. New Orleani Building Co. 237 

B. Pierce 224 

p. Sute 8»7 

1 Pierpont p. Crouch IBl 

'" ion e. State 82 

p. Mcgoun as, 776 

p. Middleton 268 

p. State 612 

I^e Co. p. Bamei 141 

p Rowland 287 

Pilkey p. Gleaion 

"' [ B. Nioholion 

e Grove p. Talcott 

Kngrey p. WMlibum 196, 712, 7 

Piper p. ChappeU 2 

I p. Moulton 2 

: Piqua Branch Bank p. Knoop 160, 837, 8 

i Piqua p. Zimmerlln 7 

PiicaCaqua Bridge v. New Rampihlre 
I Bridge 840, 841, 476, 6 

; ntman p. Bump 4 

p. Flint 

I Fittock V. O'Neil 394, 664, 656, 5 

; Fitlaburg p. Counin 



(n, 168. 181. IM 



b, Google 



TABLS OF CASES CITED. 



Piilej B. Clark 7 

Ptknte, £1: parte i 

Planten' Bftiik r. BUck 1 

>. Shmrp lEO, S 
PlMner i>. Be« 

Platterille v. BeU 2 

PIsBSUlt D. Ko«t 6 

V. Sute 8 

PleuwiU p. Rohrer i 

Pledger t>. Hathcock G 

Plenler e. Stale 343, 6 

PUmpton V. Somenet 283, 8 

Flitt B. Cox eS7, 6 

Plumb r. Sawrer 443, 4 
FlniDiiter b. Plammer 

PlymciDth F. Painter 760, 7 

Pocapion Road 6 
Pnertner e. Kusiel 

Police Commiuionen v. LooIiTille T 

Police Jai7 i^. BritUm 2 

c. Shrereport 2 

Polinakf v. People 2 

Polk c. Sute 8 
Polk'i LeMee e. Wendal 

Pollard B. Lyon G 

V. State 8 
Pollard'i Lessee v. Hasan 82, 819, S 

Pollock c. McClurken 4 

Pollock'! Adm. d. LoaisTille 2 
POoieroj e. Chicago, Ac. R. R. Co. S 
Pood r. Segla 

V. Pe<mie 8 

Ponder v. Grahiim 1 
PoDtiac i>. Carter 262, 264, 6 

Pool r. Button 2 

Pope V. Macon 464. 4 

r. Phjfer 86, 1 

V. Bute 8 

Popham D. Pickbum 6 

Porter r. Botkiiu 6 

B. HiU 

r. AUriner S 

V. Sawyer 7 
Forterfleid c. Gark 

Portland c. Bangor 14, 4 

IT. Water Co. 6 

Portland Bank v. Apthorp 6 

Port WardcDi r. Tbe Word 7 

Portwood V. Mnnlgomery 232, 2 

Poilniaaler v. EWy 1 

Poller V. Hiscoz 6 

Powell B. Board uf Edncatioa 2 

V. Brandon 

Powera e. Bean 696, fi 

B. Bergen 1 

V. Dougherty Co. 1 

«. Daboii 628^ 6 

V. Skinner I 
Pmav'i Appeal 664, 697, 6 
Pfatt r. Brown 06, 474, I1G7, 664, fl 

V. Donovan 4 

r. Jonea 4 



Pratt D. People 


778 


V. Tern 


442 


Pray ». Northern Libertiea 


638 


Prentii e. Commonwealth 


162 


Ptentiii V. Boiton 


810 


u. Holbrook 


69 


Presbyterian Society ». Anbnra 
R. fi. Co. 


&C. 


6T9 


Pre«»M E. City of Chicago 


177 


D. State 


28.866 


...Tniiteetof fllinoU & M.Canai 164 


Preston b. Bo«ton 


403 


V. flrowder 


10 


Prettyman d. Snperriton, to. 


142, 273 


Price 0. Baker 


780 


0. Hopkin 


IBB, 461 



76 

p. Kew Jersey R. R. Co. 71S 

V. Slate 400, 401, 402 

Priebard's Gate 161 

Frigg V. Pennsylraala 218 

FrimiD B. Belleville 618, 640 

Prince 17, Skillin 788, 784, 786, 787 

Prltchard v, Ciiizeot' Bank 448 

Pritchett B. Sute 401 

Priti, Ex parU 164 

Privett B. Bickford 780 

Proctor V. Andover 668 

Prohibltorv Amendmeat Ciuei 426, 746, 

748 

Ftoprieton. 4c, e. Labnree 461 

V. Na>bua& Lowell K R. Ca 662, 680, 

708,704 

Proster b. Warner 600 

D. Wappello Co. 676 

Prother d. Lexington 804 

Protho E. Orr 08, 178 

Protzman t>. Indianapolis, ftc. B. R. 

Co. 674, 684 

Proat D. Berry 116 

Providence c. Clapp Sit 

Prorhlence Bank v. Billings S40. 488. 694 
Providence Savings Institute v. Skat- 
ing Rink 849 
Pryor d. Downey 120, 478 
PuUord D, Fire Departn)eDt 169 
Pullen D. Raleigh 236 
Pnmpelly e. Green Bay, &c. Co. 672, 676 
Puruell B. Lowler 544 
Purvear v. Co nimoQ wealth 26, 722 
Puryear e. SMte 889 
Putnam v. Flint 68 
V. Johnson 764, 766 



0- 

Qusckenhusb e. Danks 
Qiung Woo, Matter of, 
Qnarrier, £1 parte 
Qoeen. The, e. Badger 

B. Collins 

E. Coaka 

V, Hennessy 

D. Jtuticea of Hertfordshire 



by Google 



TABLE OF CASES CTTBD. 



QoMO, Th* V. Jartlcn of Loodon 61 1 

r. Jiuiicet of Suffolk Ell 

V. Lefroy 669 

e. tiewaaa 6T6 

D. Piketley 882 

Quick r. Whilewiter 71 

Quimbj B. VennoDlCratnil R. R. Ca 892 

Quin V. Suie 78, 763 

Quincj V. Jonei 262 

Quong Wdo, Hmttcr of :1G0 



lUdcliffe B. Eden 


294 


Raddifffe'i Executon e. Brooklyr 


262, 2M. 

672, S7S 

231 


lUdcr V. Rotd Di.trict 


P. Union 


179 


RogaU D. Dubuqoe 


«96 


Rail p. Potu 


776 




16,S£2 


i..Be>ru 


781 


D. Brown 


15 


v.CDm'n of Clinton Co. 


139,142 


B. D«yton 


630 


e. Ferru 


604 


v. Fuller Til 


714, 787 


B.Gwrgi* 


19,27 


P. Gregorr 


177 


». Hick> 


202 


0. Huaen 


788, 741 


B. JsckMD 


008 


f. Uke 


668 


P. Maine 


839 


t> McClnre 


42 


V. Mi«iHippI 


15.17 


V. National Bank 


20 


P. PeniBtnn 


699 


P. riiiladelphia 


688 


p. Ren wick 


676 


p. Hichmond 


489,872 


o. Rock 


18 


p. Shumeir 


687 


p. Tenneiiee 


16.862 


V. Trimble 


24 


p. Warren Co- 


98 


p. Whiieneck 


176 




to. R. R. Co. 


88»,717 


lUllwar Co. p. FhUadetpMa 


841 



Railway Groia ReoelpU Tax 

Ra]«i;:li «. Sorr*n 

Kaleieh, to. R. R. Co. v. DaTii 

c. Reid 
Raliton p. Lothain 
Rnmiey p. People 
Rand p. Commonwealth 
Ranilalt p. F^item R. R. Corp. 

p. Kehlor 

r. Riiilroad Co. 
Randotpb, £z par!* 

p. Good 



Randolph Co. v. RaHa N 

Rangeiey u. Webster i 

Ranger p. Goodrich 6< 

p. Great Western R. R. K 

Raokin s. Weit "i 

Rape p. HeatoQ 24, 600, U 

Ralcliffa p. Andenon II 

Kathbone d. Bradford IE 

Ratbbua p. Wheeler 44 

Ratzky E. People K 

Rawley d. Hookar SI 

Rawnn p. Spencer 226. 232, 21 

Rar p. Gage 41 

p. Mancheater 21 

E. Sweeney i 

Ra; Co. v. Bentlej' 21 

Read v. CaH 41 

Reading p. Keppleroan 3i 

Reame* p. Keima 610, 61 

Reardon v. St Louit « 

Rearick c. Wilcox 639. & 

Reaoroe p. Chamben ] 

Recht p. Eellr 21 

Reciprocitf Bank, Hatter at 4 

Reckner p. Warner G( 

Rector p. Smith 627, 646^ ^ 

Red Rii-er Bridge Co. p. Clarkrille 61 

Reddatl P. Bryan 18, 650, G( 

Redfleld p. Florence 7' 

Reed p. Beall 3> 

p. Belfaat 21 

r. Rice : 

p. State V, 

p. Toledo 2! 

p. Tyler 41 

p. Wright 41 

Reerea p. Treasnier of Wood Co. 619, 62 

688, 657, 668, 681. 71 

Reformed Cbnrcb p. Schoolciaft 460, 6: 

Reformed P. D. Chureh v. Moll 124, Is 

Regenta of Dnirenity d. Williama 12 

161, 199, 21 

Begina. (See Quan.) 81 

Regnier p. CiUiDt 61 

Reboboth p. Hunt 31 

Reicb p. StAte 24 

Reid V. Deloniie 61 

Reimsdyke p. Kane i 

Reiier p. Tell AaMciation 118, 11 

Reitenbaugb p. Cheater Valley R. R. 

Co. Ct 

Reithmlller p. People 2( 

Reniiniilan, f a r» 8C 

p. Congdon 6! 

RemMn p. People 8t 

Renner p. Bennett 7* 

Reqna p. Rocheeter 9C 

Reiponae to Hoaie Reaolntiofi 11 

Reapublica p. Dennie 630, 61 

i: Duquet 246, 74 

p. Gibbi 771,7; 

p. Oswald 300, 6f 

p. Paitmore 61 

Berii p. Smith &t 

Rex. {S«t Kimg. Tkt.) 



by Google 



TABLE OF CASES CITED. 



B»ford V. Knight 
KerooM. o. Baler 


ees 


606,896 






37,449 


E. Bockford 14S 


230,278 


'..Btld.ln 




281 


Rolvaoa v. Brawn 


864 


•. Gmt7 




720 


Robie <-. Sedgwick 


238 


r. N«« 8*lem 




237 


E. Bank of Daiien 


422, 013 


•. 8lirB»eport 




262 


I7B, 212 


..SULie *^ 




785 


V. Bidwell 


146, 212 


«. United Statet 




682 




Rhine V. McKinney 




097 


V. Howe 


366 


Rhinehut o. lADce 




891 


e. Kalbflelih 


778 


Rhina -. CUrk 




607 


V. N. T. & Erie B. B. Co. 


675 


Rhodet B. Cineiniuti 




262 


E. Riehaniion 


874 


o. CleTclMd 




267 


E. Bobinaon 


702 


e. Otli 




728 


B. Skipworth 


176 


Rica e. Austin 




139 


p. State 


177 


r. Des Hoinei 




310 


V. Swope 


668 


V. Falter 


139, 140, 148 


V. Ward'a Ei'ra 


28,600 


V. Psrkman 




128 


r. Weit 


606 






1811 


e. While 


834 


p. Slue 




164,193 


Robj E. West 
RochealeT v. CoUiiu 


462 


r. Tunipikc Co. 




7W 


284 


Wic*'» Owe 




412 


r. Ruih 


268.608 


Ridi >. Chicago 




697 


p. Upman 


614 


r.Fbuiden 218, SGI, 440, 4^, 467, 471 


Rocheaier Water Com'ra, fl« 


063 


Riehmrd Olirer. In n 




146 


Rocbeiter White Lead Co. e. Roches 


Riclimrdi B. RajriDDDd 




226 


ter 


304.810 


p. Role 




129, 478 


Rockford. «c. R. R. Co. v. Copplnger 705 


RlchudKH r. BMton 




611 


E. Hilm«r 


716 


r-Hooooa 




124 


Rockport E. Walden 


440,450 


v.Horgui 




619, 634 


Rockwell E. Hubbell'a Adm'ta 


360.444 


p. RoberU 




623 


B. Hearing 


448,600 


p. Vennont Ceotrftl B. B. C-o. 672, 674 




889,716 


p. Welcome 




510 




60 


Biefalud o. L*«reDce 


280,232.286.298. 


Rodman e. Harcotirt 


749 






337 


Roe p. DeminB 


227 


RiebiDODd ^. Denlel 




642 


Roetlike D. Philip Beat Brewing Co. 720 


v-Long 


2GT. 304, 307 




604 




R.R.CO. 


848, 349, 


V. Burlington 


142,269 






489 


p. Coleman 


24 


Riehmond, Ac Co. v. RoRen 6T2, U74, 703 


p. Goodwin 


84 


Richmond, ftc R. R 


Co. V. LouiM, 




468 


««. R R-Co. 




488,662 


p. Jonei 


241,242 


Rickelu E. Spnker 


218 604,640 


p. Slate 


188 


RidiUe IT. Proprieiora 


of Lock* 


Ic. 296, 


E. Stephen! 


468 






290,804 


p. Vaai 


180 


Bidge Street, 7ri n 




873 


Rohrbacker p. Jadion 


762 


Bigg <-. WiltoD 




64 


Roil p. Angntta 


262 


RiggiD'i Gi'rt 0. Brown 


61 


Rome B. Ombers 


263 


Ri^r r. RoduNter 




283 


Rood B. HcCargar 


212 


Riley-iCaw 




Ml. 426 


RooieTelt v. Meyer 


18 


Rime o. Co«an 




646 


Root p. Wright 


408 


Eing, Matter ol 




426 


Roofa Case 


702 


•..Wlweler 




649 


Rope. p. Clinch 


16 


Rio Onnde, Tb* 




69 


Row B. Troai 


167 


Rbon I.. F«fT 


78, S4B, 362, 448 


Roaeberry p. Hufl 


645 




Behr 


347 


RoaenbUt. Expartt 
Roieiiburg p. l5n Molnei 


23 


Rirer. r. AegotU 




266 


S06 




267 


Roaier p. Hale 


444 


Bobbin* tr. Fletcher 






Rou V. Clinton 


267 


K Stele 




397 


E, Crockett 


287 


D. Tread w« J 


622 


644,646 


E. Dnral 


lit 


Bobffta r. Caldwell 




24 


E. IrTing 


470 


r. Chicago 


262 


264, 67S 


B.LUte? 


217 


t.Ogir^ 


247 


727, 742 


p. MoLnng 


19 


BobntNn «. BqlUona 




671 


p. Wbltwaa 


100 



b, Google 



TABLE OF CASES CITED. 



Bom'iCmo 


381,426 


Sal* F. New Orleaiu 


866 


Rotliiohild V. Grii 


06 


SaleiD B. EaiterD R. R. Co. 


742 


Ituundi B. Mumford 


2(a 


B. Maynes 


246 


t>. W»yro»rt 


183, IM 


Salem Tumpike b. Eubz Co. 2^ 




619 


SaltCo.B. Brown - 


G62 


Bouib D. W»lter 


733 


Salters d. Tobiaa 


114 


RoUttODg F. Wolf 


466 


Saltmanh v. Bow 


810 


Rowan D-Runneli 


19, 20, 100 


Saltpetre Caie 


740 


o.SUte 


892,483 


Sammoni b. Holloway 


590 


Bo«e e. Addiion 


652 


San Antonio d. Jonet 


142 


B. Granite Bridge Corpowtion 674 


B.Luie 


270 


p. Portamoalb 


267, 830 


Sanboni v. DeerfleW 


272 


Royal V. Thonms 


507 


B.Rice 


288. 610. 613 


RofBt British Bank t>. Tnrqiiaiid 273 


Saoden B. Hlllsboro' Iob. Co. 348 


Itozier u. Fagan 
Rue High'* Gate 


126 


B. Meccalf 


390 


T64 


B. Rollinion 


646 


Rugglen B. Cotli«r 


260 


Sandford „. Bennett 


660,661 


r. Nantucket 


661 


B. Nicholt 


370 


V. People 


738 


Sandi f . Kimbark 


606 




443 


tr. Riclimond 


727 


RQhl, /fe 


138 


San Frandico b. Canaran 


280. 2»* 


RuUaon p, Poit 


227 




Ruloff «. People 


886,886 


San Mateo Co. b. Sga. Pac 


RR. Co. 13, 


Rumney v. Keyei 


416 




485, 616, 628 


Rumaey v. People 


87, 812 


San Hateo Water Worki 


. Sharpi- 


RondEe t.. Foster 


4O0 




676 


Rnnndi v. Btate 


382 


San* B. Joeirii 


561 


RuTiynn b. Coster'i Lewee 


152 


Santo B. Slate 1S9, 144, 


202, 212. 218, 


Rnohi B. BuckiT 


646,649 




719, 720 


RoBch c. Darenpon 


804,306 


Sater b. Burlington & M. 


P. Pknk 


Riiali u. Cavenaugh 


412 


R. Co. 


702 


Rushing b, Sehree 


IBO 


Satterlee b. Mathewaon 


828,464,470 


Ruisell a. Antliony 


644 


B. San Francireo 


170 


r. Burlington 


262,264 


Saul B. Hi. Creditora 


162,183 


e. Burton 


ia6 


Saunders b. Banter 


664 


r. Mon of DeTon 


240, 298. 803 


«. CabaniKi 


116 


V. New York 


661,740 


r. Haynei 


780 


i>. Perry 


24 


B. Mill. 


653,576 


V. Pyland 


772 


B. Bod way 


416 


B. Rumiey 
B. Whiting 


443,466 
426 


IXX^ 


620,622 
480 


Boit V. Golt 


772 


SaTage ». WaUhe 


»3 




683 




284 


Rutl" /n re 


722 


V. State 


172, 213 


Rutland r. Mendon 


64 




f. Savan- 


Ryall. B. Uadtr 


668,665 


nah 


684 


Ryan, 1. re 


183 


Saving! Bank b. Allen 


463 


V. I.ynth 


«, 168. 169 


B. Bates 


463 


V. Tliomai 


18 


8a*ing> Society b. Philadelphia 241 


Ryckmnn v. Delavan 


525 


Sawyer v. Alton 


636 


Ryegnle v. Wardiboro' 


71 


B. Corse 


304 


KyenoTi v. Brown 


662,664,666 


B. Insurance Co. 


79 


V. UUcy 176, 177. 180. 610, 613 


P. Nortlifleld 


266 






p. Vermont, &C.R.E. Co. 716 






SaTton V. St. Joseph 


266 






Sayies b. Davis 


599 


S. 




Sayre v. Wisner 


456 






296 






Scanlari w. Childs 


83,84 


Stckett c. Sacfcett 


82 


Schenley i>. Alleghany City 


610 


SRcramento v. Crocker 


625 


B. Common wealth 


444, 466, 461 




315, 667, 668, 


Schaltner k. Kansas City 


262 




664 


Schlict V. Slate 


726 


Saffiird B. People 
SaUly V. Smi^ 


897 


Schnier v. People 


876 


868 


School Board v. Patten 


99 



b, Google 



TABIA 07 CASB6 CITED. 



SdMM) Diractort ■>. ^rt SSfl 

o. Iniumnce Co. 205 

School Distriit 0. Alherton 237 

E>. Bmtrd of Education '2SZ 

0. Cal*iD 326 

V. Fogelnuui 226 

e. Gai« 226 

V. IniuraDce Co. IM, 296 

p. MemlU 644 

V. Wood 296, 297, 298 

Sdiooner Fanliuk't Cargo v. Onited 

8titn 68 

Schoooet Bacbel c. TJoiled State* 444,471 

Schimder, Exparlt 111 

Schaclunlt b. People 749 

Scholti V. Milwaukee 266 

Behiimian t>. Mmrley 33 

Scbumieier v. St. Paal, ic B. B. Co. 679 

Sciiumte r. Weymouth 232 

Scofield V. Wktkini 640 

Scotland Co. v. TbooiM 271 

8c«tt, Er DorU 187 

t>. CUrk 190, 101 

p. Coleman 24 

i>. Detroit Youog Heu'i Sodety, 



B. Hooper G 

V. Hancheiler S 

n. MsDier 4 

>. HcKlnnlih G 
r. Sandford 

B. School Diatrict 2 

r. Smart! Ex'ra 2 

p. WillMwi 7 

SeoTille p. Canfield I 

D. Cleveland 618, 628, 6 

Screw CoDi|HU]7 v. BUyen 

Scrihoer b. Rabb E 

Serippa «. Belli; G64, G 

GcDdder a. TreutOD, 4e. Co. 6 

Scofiletown Fence Co. v. McAlUater 6 

606,7 

SeamaD'* Friend Societ; v. Boaton 6 

SeaTGjr v. Grow 7 

Seara b. Com'n of Wairen Co. 

e. Cottrell 107, 207, UB, 4 

D. Terry E 
Sceombe ir. Kittleaon 

e. Bailroad Co. 6 

Seoord r. Foulch 7 

Sedgwick o. Slauton 1 

Sedgwick Ca v. Banker 283, i 

Stely B. PitUbutg « 

Seibcrt v. Linton 1 
Sclby V. Bardon* 

Selin V. 8;nder ( 

SelaiB. ic. R. R. Co., Export* 1 

Scbnaii V. WMe ' 

Sclibjr V. RedloD 4 

BmariieV Caae t 

8«Mler, Petition of 4 

Stqoertration Caaea f 

Sc^cant V. Kahn ' 



Servaiiai p. Hcbel 61 

Servia i: Beatty : 
Seuion* v. Cruokilton 629, 6S3, 71 

Sesaumt c. Botti 2: 

e B. Van Enea 

Seven Biihopi' Ca*e, Th« 4! 

BeTen Hickory c. Ellery II 
BeTem v. Regina 4, 709, V. 

Sewall V. SewaU 4t 

>. SL Paul 3 

Sewell D. Board of Ednc«tion 2! 

Sexton D, Todd fi 

Seymour p, Hartford 61 

D. Tnmpike Co. 21 

Shackford b. Newington 279, St 

Shackteford d. Cofley 6< 

Shafer d. Mumma 242, i 

Shaffer a. Union Uiuing Co. 7' 

Shannon n. Froat 677, 6: 

Sharp p. Contm Cotta Co. 21 

J. New Tork i: 

). Spier « 

I. Thompton 71 

Sharp'i Ex'ra b. DunoTan 6t 
Sharpies* ■>. Mayor, Ac. 142, 380, 694, A 

Shartle b, Minneapolii 8 

Shattnck n. Allen 6' 

Shaw, Ex parU 4! 

9. Cliarleitown 6! 

>. Crawfiird 7: 

t. Denoii 609, K 

;. Macon li 

D. Moore ft 

9. Nachwea 4: 

^ Norfolk R. B. Corp. * 

a. Thompton 4 

Shawnee County b. Carter ' 

Shawneetown v. Maaon Si 

Sheahan e. CoUina Bt 

Shearlock e. Beardaworth 61 

Sheckel b, Jackaon & 

Sheely v. Biggi K 
Shehan'i Heira v. BameH'i Hein 1' 

Shelby v. Guy 19, 4. 
Sheldon. Ex porta 

V. KalatnasM 8 
V. Wright 602. 608, 8 

Shelny d. Detroit . 020, ft 

Shelfer b. Oooding 6 

Shelly 'a Appeal 2 
Shepardaon b. Milwaukee, Ac B. R. 

Co. 222, 696, 696, 6 

Shepherd v. Chelae* 2 

a, CommiaaioQer* 7 

V. People 8 

Sheppard'a Election Caaa 7 

Sherbonnie v. Tuba Co. 803, 3 

Sbertnan r. Buick 6 

B. Carr 2 

p. Milwaukee, ftc. R. B. Co. 6 

V. Story 1 

Sherrard e. Lafayette Co. 2 

Sherwood v. Fleming 4 

Sbielda u. Bennett 177, 188, 1 

Shifilet r. Commonwealth 8 



by Google 



TABLB OF CASES CITED. 



Shiplej 1^ Todhnnter 


627 


Slatten r. Dm Hoitwf ViUey B. B. 


Shipp V. McOnw 


621 


Co. 


673. IttS 


s. HUler 


19 




Sliipper V. Pennsylvuk B. B. Co. 22 


SlaDghter-HoQie Caaea 


243 


Sli»>W t>. People 


496 


10. 14. 23, 344. 


Shock V. McChemer 


646 


346, 860, 491, 700 


Shonk i>. Bro«a 


129, 466, 467 


SUiuon V. RaciDe 


214 


Shore B. Sum 


S78 


SlaTe Grace, The 


863 


Shorwr, Matter of 


S20 


Siayton v. Hulinga 


89 


V. People 


874 


Sif'glit V. Rane 


310 


V. Smith 


841 


Slemnier b, Wright 


412 


Shover r. State 


690,726 


Slinger o. Renneman 


141, 148 


Shr«der,£e parte 


111, 722 


Sloan V. Cooper 


69 


Shrereport o. Levy 


484.680 


». Pacific R. R Co. 


838. 712, 713 


ShniDk B, Schuylkill N*t, Co. 872 


r. State 


230 


SliuiOMyii. Bennett 


111, 121, 227 


Smaila x,. White 


177 


V. S.illro.n 


2* 


Stnall r, nantiiie 


907 


Shurbnn c. Hooper 


14a 




628 


Shurtlett V. Stpreni C3i 


664, 664, 665 




R. R.Co. 871 


Sibley «. WlJIiam. 


82 


Smith, ffr port* 


28.762 


SidgreftTe> f. MyMt 




Matter nf 


2D 


Sidwell D. Etuii 


66 


Petition of 


426 


Sielxild, fi parlt 


243, 423, 762 


El. Adrian 


147 


Itr^.r" 


£08,610 


lax-. 


866 


202,207,208 


61 


Sillinuui V. CatDinlni 


466 


r. Brown 


864 


Sills V. Bro*n 


380 


V. Bryan 


444 


Silabe r. Stockel 


472, 046 


V. Cheshire 


270 


BIlTcr Lake Bank ir. North 


168 


V. Clark Co. 


272 


Bilvaa r. Btate 


S90 


r. ClereUnd 


4M, 472 


Siromer ». St. Paul 


267 


D. Commonwealth 


178, 170, 882 


Simmonda u. Simmimdi 


11« 


t. Connelly 


664 




426 


0. Gattem B. R. Co. 


716 


V. Camden 


264 


V. Friahie 


606 




162 


V. Gould 


S64 


0. Holater 


622 


„, Howard 


646 


». Wilaon 


642 


V. Hoyt 


184,190 


Simmi r. Railroad Ca 


«05 


V. Hunter 


17 


Simondi d. Simon di 


182,486 


V. JanestUle 


144, 146 


amonda'i Ei'ri u. Grati 


690 


f. Jadge 


100,207 


Simpaon w. Bailey 


177, 17B 


«. Knoirille 


246 


0. SaringB Bank 


349, 467 


r. Lea ren worth 


311 


B. State 


82,162 


p. LeTinu) 


229 


Sima V. Irvine 


19 


t. Macon 


803 


r. Jackaon 


618 


V. Maryland 
V. McCarthy 


20 


V. Sim> 


24 


141, 107 


Sinctair 0. Jackaon 


197 


469 




t. Morriaon 


189, 461 




460 


r. Morse 


236,260 


Sinking Fund Caiei 


339 


V. Nelson 


677 


einka V. Reese 


152,756 


c. Norment 


138 


Sitilnn r. AtlibuTT 


230,284 


r. Packard 


318, 349, 866 


Sioni City v. School DUtiict 63S 


r. People 


79 


Sioux City, &u. R. B. Co. 


V. Wuh- 


■7. Wee 


602 


ei5 


>. Scott 


666 


Bkeldine v. Whitney 


69.60 


.. Sharry 


478 


Skellengerr. Smith 


466 


B. 8hen7 


206,823 


Skilding ». Eerrick 


69 


I.. Short 


699 


Skinner. £zHirt« 


427 


... ShriTer 


20 


V. Hartford Biidjre Co. 


262,673 


». 8 Icnce 


623 


Sluk V. Jacob 67, 68. 218, 219. 224 


■>. Smith 


188,497 


r. UajiTille, Ac. K. R. Co. 76, 142, 


v. Speed 


108 




278,606 


r. Stewart 


622 


fihide V. Slade 


60 


P. Swormstedl 


678 


Slater, ExpaHt 


878 


P. Thomw 


627 



b, Google 



TABLE OF CASES CITBD. 



BduO) v. Thiinbr 68 

V. Townihip Boud 226 

«. Trimble 606 

D. Vui Gilder 340 

D. Washinirton 2G2, 264, 678 

Smith, Mbit, Cbm of 882 

Smoot 0. Wetampka 804 

Smyth V. McMuten 772 

V. Titcomb HI 

Eneiiler e. Heidelbener S60 

Snawhill V. SnowhiU 124 

8tijder b. Andrew* 673 

». Bull 4«T 

D. Fulton 675 

v. PenniyivuiiB R. R. Co. 679 

V. Rockport 252, 264 

Society, &c. >'. Wheeler 19, 461, 467, 480 

Society for Saviagt n. Colte 698 

Society of Scrivener* e. Brooking 244 

Sobier b. Musuhnaett* Hotpit*! 124 

B. Trinity Church 677 

Solomon v. CuleraTille 186 

V. Comminionen 186 

SonKnet and StoyBtown Ro«d 183 

Somerriile v. Hftwkini 626 

SomerTille & Eaiton R B. Co. a(U. 

Doogbty 701, 702, 70* 

Sommen b. JohDwin 860 

SomtnemtCB Case 861 

S<^>er «, Harrard College 744 

Sorchan v. Brooklyn 08 

Sorocco e. Geary 661, 740 

Sortwell V. HughM 720 

SoQth and North Alabama B. R. Co. 704 
V. Horm 212 

Sontbud B. Central B. B. Co. 467 

South Carolina B. B. Co. b. Sleiner 679, 



South Ottawa v. Perkins 

Soathport b. Ogden 

Sonthwark Bank v. Commonwealth 

Sotub-irettarn R. R. Co. n. Faulk 

V. Telegraph Co. 696, 

Sonthwick B. Sooihwick 
Soothworth 0. Palmyra & Jackion- 

bargh R. R. Co. 
Sootier n. lladiion 
SoTereign b. State 
SpaidB B. BarreU 
Spanker b. Jacoby 
Spaugler'i Caaa 
Sparhawk b. Sparhawk 
S|wrrow r. Kingman 
Sfmnlding b. Lowell 
SiKslmaa d. Railroad Co. 
Speara v. Slate 
Specht K. Commonwealth 
Speer e. Plank Boad Co. 

B. School Director* 
SfKidel e. Schlower 
Speight e. People 
Spencer v. Boatd of Begiitntlon 

V. Dearth 

o. UcUaflen 



168, 270 



Spencer p. Slate 


68, 69, 188, 


Sperry c. Willard 




Spiering v. Andrae 
Spill B.Hanle 


644, 


Spiller V. Wobum 


227, 


Spoouer v. McConneU 


86,87. 


Spoirer v. Eifier 


10, 


8pr«gg V. Shrirer 




Sprague b. BirdaaU 




r. Brown 




p. Norway 






673, 


Sprecker b. Wakeley 


849, 860, 



Spring «. RuikII 
Springer b. Foster 19, 31 

V. United Slatai 696, 6< 

Springfield v. Coanecticnt Biver B. R 

Co. 662. a: 

b. Doyle 805, 81 

t>. Le Claire 804, 31 

Springeeld, &c R. R. Co. v. Cold 

Spring 2( 

V. Hall 61 

Spring Valley Water Works v. Ban 

Frnnciaco 4f 

StackhouBo V. I.af(yette 8( 

Bcackpole b. Hennen 6< 

Stacy D. Vermont Cetitral B. B. Ca 61 

St. Albani V. Bnah 6( 

Stamp e. Cbbb Co. 21 

Standiford e. Wingate 3! 

Stanfleld v. Bayer 6! 

Stanford d. Worn 61 

Stanltbrd v. Barry 11 

Stanley, £a: parts S) 

D. Colt 1! 

B. Daietiport 686, 61 

e. Stanley T 

B. State 11 

V. Webb 663, 654, 61 

SUnton r. Metropolitan R. R. Co. 7! 

Starbuck t>. Murray 24, 6t 

Surin V. Genoa 142, 2' 

Starkweatlier c. Bible Society II 

Starr d. Camden, &c. R. R. Co. 679, 61 

B. Peate 133. 11 

SUIe, Ei parte I 

V. Adams 116, S19, S21, 338. 460, 71 

173, v. 

398, 4S6, 607, 6\ 



96, 168, 160 


f. Ah Sam 


16.424 


V. Allen 


116, 13* 


«. Atlmond 


65 


c. Almao 


74* 


r. Amhs 


715 


0. Amery 


88* 




690,726 


e. Armingtoa 


184 


D. Arlin 


278,606 




100 


V. Ashley 


15* 


r. Atwood 


tlon 752 




00,61 


■>. Auditor 


623 


B. Bailer 



b, Google 



TABLB OF CASSa CITBD. 



8Uto 0. Baker TB. 76T, IG8 


SUte B. Caatidy 


246, «14 




445.690 


p. CaTen 


J7C\,78« 


V. Bank 


862 


B. Cawood 


«2 


.. Bank (rf SoQth Carolin* 


862 


B. Chamber! 


883 


.. Bknken', &c. ANOciation 


179 


V. Champean 


400 


■.BarbM 


78,456 


B. Chandler M, 684, 585, 686. 78S 


». Barker 


SSS,T2B 


V. Charieiton 603 


628,043 


t. Bamett 


as 


r. Chnrch 


773 




730 


.. Cindnnati 


2»6 


V. Barrett 


416 


B. Cindunati Gaa C& 268,487.677. 




1&2,3S6 




6B6 


>. Battle 


401 


>'. City CooDdl of Chaileftan 734 


V. Beal 


SS7 


■-. Clark 


154. S4S 


V. Behimer 


40S 


B. Ciarko 212, 241, 246, 748. 749, 780 


V. Beneke 136 


144,607 


V. CleaTea 


3S6 


V. Ben ham 


402 


B. Clerk of Fawaio 783. 786, 788 


V. Bennett 


ISH 


V. Click 


M 


«. Bemoudy 


821 


B. Coleinaa 


a-a 


r. Barry 


18S 


B. Coleman t Haxcy 


436 


r. Be»ick 


sse 


r. Collector of Jeraey City 


630 


r. Binder 


74^770 


B. Collier 


773 


V. BUwJell 


66 




ist 


V. Bloom 


T61 


D. Com'r* of BHltimora 


312,483 


B. Board of Edacation 


226 


e. Com'r* of Clinton Co. 


142 


r. Board of LiqnidaUon 


2« 


B. Com'ra of Hancock 


143 


t.Bond 


189, 767 


B. Com'ra of Ormaby Co. 
B. Com'n of Perry Co. 


106 


r. Bonnelt 


237 


214 


e. Bonner 


498 


», Com'ra of R, B. Taxation 38tt 


B. Boone Coomy Court 


63 


B. Corn-n of School, Ac. Land* 356 


>. Boitick 


sgs 


B. Common Conndl of Uadiaw 284 




301 


B. ConxnoD Pleaa 


590 


El. Bott 


GOO 


B. Connor 


400 


V. Botrera 


174. 176 


B. Constitutiou 


73S 


B. Bnuin 


280,231 


B.Cook« 


146.348 


r. Braaifleld 


748 


B. Cooper 


402 


V. Brennan't Llqnora 


374,507 


B. CopeUnd 130. 148. 212 


V. Brewgier 


71 


B.Core 


sai 


0. Brockman 


388 


D. Corton 


880 


D. Brook! 


401 




788 


>. Brawn lOS, 162, 395 




784 


0. Brunetto 


880 




V. Bmnit 


836 


B. Connly Court 


688 


V. Buchanan 


82 


B. County Court of Boone 


IM 


V. Banker 


388 


B. County Judge 


784 


». Burlington 


256 


V. Count; Jodgs of Davia 


173, 174 


B. Burnett 


786 


B. CoTington 


136.181 


B. Burgoyne 


848 


B. Cowan 


230,242 


r. Burnham627,685,68a,66a.6M.676 


r. Cox 


212,891 


B. Bum) 


396 


v.Cniie 


610 


D. BnCman 


561 


». Crawford 


377 


B. Buzine 


23 


V. Crotean 


397 


B. Buirard 


428 


B. Crowell 


677 


B. Cain 


18^183 


B. Crummy 


243 




400 


B. Cumberland B. E. Ca 


612 


B. Callieut 


740,746 


B. Cumtninga 82 


162,321 


B. Camden Common Plau 


164 


B. Curti. 


401 


B. Cameron 


886 


B, Daley 
V. Dan/orth 


446 


V. Campbell 


82.389 


403 


e. Cape Giratdean, ftc B. B. Co. 29, 


B, Danieli 


776 




218 


r. DiTli 


891 


V. CaHoio 


224 


B. Dean 


619 


B. Carew 


866 


B. De Gr«u 


749 


B.Carr 


311 




279 


B-Carrt. 


26 


v. Denton 


893 


B. Carroll 


761, 777 


B.D«W* 


886 



b, Google 



TABLE OF 0ABB8 OTTBD. 



State p. TSmidk 


163 


State ». GraTef 262, 268, 604, 6M 


.LDoher^ 180, 186, «5, 478 


p. Greeu 


400,748 


r.Domlwiigh 
V. DoDehej 


218 
T20 


:.sx' 


601 

764, 7G9 


p. Domwwirth 


784 


p. GoUd 


388,884,386 




68,80 


p.GuiterM 


207 


l'.V^Ug^MMt 


834 


E. Qumey 


177, 607 


v.DonNnun 


214 


0. Gut 


177 


l'.D^ 


188. 33S, 788 


V. Guttenberg 


468 


488,484,486 


V. GutUerrei 


207 


».Daiiiiiiig 


187 


o. Haben 


286, 291, 610 


^Dw>«r 


2*1 


V. H*ir.toa 


488 


^EuUibrwk 


212 


p. Hftiifax 


636 


D. EIIU 


162, 191 


p. Haiiock 


77 


D. Elwood 


763, 766. 769 


e. Hammer 


15*. 


t>. Endom 


613 




269 


V. Epbnim 


400,401 


p, Hardin 


387 




613 


r. Harrii 


282 


r. Everett 


391 


p. HarriaoD 177, 287, 783, 784 




186,224 


p. Kawtbom 


863 


'v.^^ 


678 


-. Hayne 


613, 783 


V. FeiblenMU 


748 


-. Hav. 


224 


o. Pelton 


878 




». FwgiMon 238, 284, 249, 467 




182 


..Fetter 


786 


p. Henry 


390 


t. Field 


144,148 


p. Henun 


467 


e. YiMhei 


744 


P.Herod 


246 


r. Fiike 


260 


r. Hayward 
p. Hill 


887 


o. Fleming 


115 


784 


».Fole7 


187, 727 


p. Bllnuotel 767. 788, 7B0, 7B6, 701 


V. Fonhner 


478 


p. Hitcliooclt 


6^154 


>. FiMdick 


22 


p. Hoboken 


2*6 


e. Fnunbnrg 


S89 


p. HoUaday 


100 


K Francis 


169,163 


p. Hooker 


889 


V. Franklin Falla Co. 


462 


p. Hopper 


111, 114, 116 


V. Franka 


771 


p.H<.>r 


876 


c. Frederia 


889 


p. Hudion Co. 


803,638 


r. Freemei) 


248,248,389 


p. Hudaon Co. Com'n 


130 


r. FriU 


'606 


p. HuSoTd 


23 


B. Fry 


184 


p. Hundley 


877 


V. Fuller 


616, 629 


p. Hurley 


876 


p. Gaflfacr 


608 


p. Hutt 


748 


r.G*ii>e. 


181 


p. Infterwjll 


482 




70 


182 


p.GareK:he 


821 


V. JackKin 


279,697 


•>. Oarton 


69B 


p. Jairett 


169 


r. Garrey 


386,400 


p. Jay 


672 


e. Gate* 


706, 767 


p. Jeaning* 


280 




'847 


p. JerMy OV 243, 249, 260, 619, 714. 


r. Georgia Hedicd Socfetr 241 




727 


r. Gerger 
V. G>l£a 


182 


p. Johnaon 94. 162, 880, 607, 786, 786 


784 


V. Jonc* (60 N. K) 


877 


p. Oibwia 


483 


(6 Ala.) 


898,399 


V. Gilei 


780 


121 Md.) 


440 


■>. GiloiaD 


160 


(10 iDd.) 


287, 760, 777 


e. GlMMD 


109 


P. Judge, &c. 


191. 788 


tr. Glenn 


801 


p. Judge of Co. Court 


222 


p. Goctn 


769 


r. Jumel 


420 


*. Goldatncker 


78 


V. Juatice* of Hiddleiei 


785 


v.Good 


770 


p.K>lb 


834 


p. Gordon 


242 


I'. Kaoonw 


see 


B. Gorernw (6 Ohio 8t) 188 


p. Ka«>n 


401 


(26 N. J.) 


186.783 


p. Katdeman 


402 


(89 Ho.) 


138 


p. Kaaftnan 


892 


..Onbun 


S2S 


p. Keenaa 


748 



b, Google 



TABLE OF CASES OITED. 



SUM V. Krith 


42,824 


State V. Hedbnrj 


22, 


V. Kemp 


896 






p. Keoaej 


483 


V. Meumore 




«. Kennon 


80,136 


B. HetMDBOT 


461, 


e. Kettle 


402 


B.Met^ter 




«. KJDK 


69 


B. Miller 96, 177 


179,232, 


V. KinLlU 


180 


B. Mill* 




IF. mrke 


412, 749 


B. Milwankee Om Co. 




v. KlrUejr 


140,286 


B. MitcheU 




V. Kirkwood 


138 


V. Mobile 


680, 


D. Klein 


014 


B. MotBtt 


188,163, 


0. KUnger 


877 


B. MooahaD 




V. Knight 


161 


B. MoBldair B. Co. 




489 


B. Mooney 
B. Morrill 




p. Krituchnitt 


201 


S90, 


v. Labretu Co. Coort 


177, 180 


v. Morrii 




V. Uncutei Co. 


748 


V. MoTTii Co. 




>.Luh 


74 






r, Lkthrop 


613 


B. Hurray 


748, 


1.. Urei^k 


678,687,689 


B.Neal 


42, 821! 


«. LawKDce 


386 


B. Ned 




«.Leui 


92,190 


B. Nelion 






3S0 


B.Ne«*rk 177,178,467,461,466, 


p! Le BUDch 


162 






t>. Lebre 


6% 624, 674 


0. New Bmniwick 




D. Lee 


402 


0. New Haven, Ac. Co. 


140, 


f. Leiber 


744 


V. New Orleana 


446, 


V. Leonard 


226 


V. Newton 




d. Linn Co. Court 


142 


B. Nichol. 




B. Litclifleld 


872 


B. North 




E. Little 


400 


B. Noriheni Central B. 


B.Co. 


V. Lock wood 


891 


V. Norrell 


400, 


r. Lonidde 


627 


B. Norwood 


446.466, 




172 


B. Noye. 127, 146, 147, 229, 838, 


V. Lowhorne 


886 




662; 712, 


B. Lowry 


400 


B.Ober 




». Lod-ig 


242,246 


«. OTIaherty 


830, 


v. Lapton 


607 


V. Oleson 




202 


V. Olin 


768, 771, 


72,80 


B. Olirer 




V. Micon Co. Court 


76 


B. 0-NieU 




0. Main 


161. 162 


B. OfTi* 


237, 


i>. Mdne Cent B. B. Co. 889 


V. Oikini 




V. MtnoiDg 


380,470 


B. 0«awkee 


268, 


p. Man-lleld 


891 


B. Parker 180, 140 


146, 146, 


i>. Marler 


877 


B. ParkinMn 


83, 


B. Marlow 


786 


B. PasBBic 




B. Mania 


402 




360, 


V. MUOD 


771 


X,. Pea™ 




p. Hathewa 


160, 801, 711 






V. Muwell 


640 


E. Peienon 


891, 


r. Majhe- 


83, 107. 436 


K. Petineli 




V. Mttjnard 


'l08 


B. Phalen 


84B. 


«, M«yor, &:. 


226, 268. 748 




V. Mayor of Newwk 


SS9, 487 


V. Fhillipi 




I.. McAdoo 


321 


B. Pierce 


97, 764, 


V. McBride 


41. 170 


E. Pike 




B. McCann 98, 166, 179, 483 


V. Pilibury 
E. Plainfk^ 




B. MciConnell 


163, 168 




V. McCracken 


177, 178 


V. PlaW 


167, 


r. McDaniel 


781 


E. PoUon 




V. HcGinley 


93 


E. Portag* 




V. McOlnnU 


894 


B. Pratt 




V. McNieU 


141 


B.Pr«tcott 




r.Uead 


184 


■7. Price 





b, Google 



TABLE OF OASES OITBD. 



Bute r. Prince 



7. Punly 
9. Qoaml 
p. Quick 
ti. Quimby 
v. Bukin 



'. Reid 
r. ReTDOldi 
>. Rich 



K. RicbmoDd S8S, 4 

V. Robb 7 

t. Robblna 1 

V. Robert! S4B, 3 
t. RgbitiMD 20!, 218, 882, 710, 7 

V. Bocka&llow Z 

V. RodoHU TSS, T 

17. R(«era • 87, 1 

D. RoUe C 
D. RoUint 

». Rou 4 

p. Rutledge 7 

p. R;ui S 

p. RaoTinet ] 

f. SuTBnnah 2 

V. School Board Pond 1 

*. Scott 141, E 

p.Seaj 1 

t. Sejinonr 655, 6 

0. Shsdle 1 

f. Shsltuck 4 
s. ShampeTt 

173, 174, 1 



State E>. Street CommiMioDen 
v. Stricken 
V. Stampf 
V. SulIiTan 
c. SammoDl 

n. Saperriian of ForUge 
B. Sutterfleld 
V. Sweariosen 
V. Swift 42 

t. Symondi 78 

p. Twt 

w. Tally 

V. TappaD 260, 282, 286 

V. Tavlor 

E. Telephone Co. 

e. ThoDiu 

tt. Thompioa 

V. Thornton 

e. Tiedemann 

ti. Tipton 

V. Tombeckbee Bank 

V. Towle 

V. Treuurer 

V Trenton 

c. Triuteea of Union 

V. Trnmpf 

V. Tucker 

V. Tattle 

V. Underwood 

1-. Vaiweur 
V. Vail 



>. Slack 41 

t. SnUth 138, 188, 3Td. T4S, 71 

V. Snow 212, 371, 31 

f. Soalb Caroliiw R. R. Co. O: 

D. Spier 400, 4( 

V. Sqnire* 164, 177, 180, 468, 4' 
V. Staler 31 

V. Stanler V. 

r. SlMTling 3 

t. Stale CanTMeen 71 

v. Suien 78,188,206,819,432,41 
488,4 
V. Steer* 71 

t. Steriing a 

p. Bt Joieph T' 

D. BL Lonia 1- 

r. 8l Lonii Cathedral 1' 

V. St. Loui« Ca Coort 21 

F. Stone 31 

B. Slont 6 

r. Strander 3 



174, 176, 468. 491 



n Baambach 334 

f. Van Home 142 

c. Walker 401 

0. Wapello 209, 273 

n. Warmouth 138 

0. Warrea 467, 7S4 

p. Watson 761 

0. Weir 188, 146, 148 

i>. Welch 243, 248 

». WentwoTth 887 

». Weilon 100, 748 

t>. Wheeler 212,719,720 

f. While 890, 676 

V. Wilbnni 428 
B. Wilcox 189, 141, 144, 148, 229 

r. WilketvlDe 278 

D. WilUnson 397 
t. WUliams 78, 246, 827, 830 

E. Wllminetoii City Coniidl 749 
!>. Wilton 330, 740 
t>. Wild 886 
f. WinkelmeieT 748 
p. WiKman 401 
r, Wollem 778 
V. WoodSn 800 
17. Woodruff 88 
V. Warden 892 
0. Wright 478 
V. Tonng 174, 179, 180, 769 



by Google 



TABLE 01' CASES OTTBD. 



State Andiion e. Jkcktoa Co. 

SUte Bank v. Curraa 7 
StaW Baak e. Knoup 

fitate Freight Tax Case 602, 7 

State Hallroad Tax Caan t! 
State Tax on Foreign- Held Btmdi 60S, S 

Stale Tonnage Tax Carci fl 
State Treainrer v. Auditor Q«neral 6 
StajioD B. Uuling* 

St. CharlM v. Nolle « 

Steamship Co. v. JoUiffe 724, 7 

i>. Port Wardeoi 6 

Btearai u. Qittingi 410, 4li0, i 

Stebbini b. Jenningi S 

Steokert v. Eait Saginaw 1 

Steele f . Botton ! 

V. Gellatlj i 

V. Smith 

D. Southwlck 533. G 

v. Spnianca 4 

Stein v. Burden fl 

■>. Mobile 14S. a 

Steinei v. X^anklin Co. 

Steinman, Ex parte 4 

Stephen* v. People 7 

Stetaon v. Sempton 280, 27S, 6 

Stettinui v. United Statea 3 

Bteuart v. Baltimore & 

Stevens v. Andrewi $ 

V. MiddleKx Canal 

V. Paterson, Ac. R. R. Co. 

V. Rutland, Ac. B. R. Co. S 

V. Stole 877, 4 

Sterenson c. Lexington 2 

r. School Dixrict 2 

Stewatil V. Jeflbnou 1' 

Stewart r. Blaine 1' 

c. Father Hathew Sot^tv 1 

«. Crifflth 1 

B. Hartman 6 

c. KinielU 177, 1 

t>. New Orleaiu 9 

V. Potu S18, 6 

r. Ripon S 

n. BuperriaoM 1 

D. Trevor a 

Btiilnoth'i EiUte 4S6, 4 

Biilei V. Nukei £54, 6 

StillE u. IndisnapoUi 6 

Btilwellr. Eetlogg b 

Sline 0. Bennett 1 

Stinion d. Smith 1< 

Slipp V. Brown 4 

Stiizell D. Reynold! 6 

St. Joeeph V. Anthony 6 

e. O'Donohue 819, Q 

c. Rogers 270, 2 

8t Joaeph, Ac. R. R. Co. v. Caltender 6 

V. Countj Court 78, 1 

St. Joseph School Board v. Bachanan 

Co, 1 

Bt. Louis V. Alexander 1 

V. Allen 230, 2 

p. Bents 841, 242, 2 

v. CaffertU 280, 341, 242, 7 



I St. LoDli ■>. Porter 1 

I { V. Ooebd i 

I V. Green 2' 

t , t>. Outdo SeS, 2J 

I P. Knox S' 

I I V. Oetera ft 
1 1 V. RuBiell 220, 280, 281,21 
I : V. Schniu^elberK 7' 

b6 I 0. Shielda 11 

820 1 B. TieW 172, i: 

4, 726 ! B. Weber 241, 248, 2- 
602 St. Loui«, tx. Co. o. Harbtne S- 

g, 461 St. Louii, &c a B. Co. V. Clark I 

240 *. Laftin 84 

160 1 V. Richardaoa T( 

266 ' V. Telers 61 

448 St. Mary's Industrial School n. Brown e( 
24 : Stoclfbridge v. West SCockLddge 2< 

). G23 Stockdale v. Hansard 108, E67. Bt 

480 V. Stale 4i 

662 Stockine v. Bant 948, 8^, 4- 

1, 347 B, State 202, 218, SI 

272 Stockton b. Whitmore 61 

480 Stockton, Ac. It. R. Ca v. Stockton 1^ 
768 Stockwell v. White Lake R 

5, 645 Stoddard v. Martin 7: 
307 Stoddart v. StoiOi 2( 
607 Stokes, In rv H 
366 1 V. New York 2- 
668 V. People »J 
675 1 V. Scott Co. 24 
S39 Blone v. Basset 8J 

" " i>. Charteatown 221^21 

t>. Cooper Gi 



V. Dana 



II. Hiwitaippl 
K. New York 



lippi 



New York 

V. Bclraol IHstriut 21 

Stoner v. Flonrnoy Si 

Stoney f. Life In*. Co. 2' 

Store; V. Cballands 61 

V. People SOI, 5i 

i>. Wallace 5i 

Storrs V. Utica 81 

Story D. Furman 348, Zt 

B. New York Elevated Railway 

Co. 6f 

Stoughton V. State 71 

BiDut V. Hyatt ! 

B. Keve. J 

Stover V. People 8f 

Stow D. Wise 21 

Slowell B. Lord Zoooh ' 

St. Paul B. Coulter 2< 

B. Seiti S: 

V. Smith 2i 

n. Traeger 248, 246, 2' 

SL Paul, Ac. R. B. Co. v. Oardner 61 

p. Parcber 3- 

Strader b. Graham I 

Strahl, Ex parf A'. 

Strang, Ex parte 760, T 

Strait V. Strait 4! 

Stratton B. Collins 616, 087, 8- 

Strauch v. Shoemaker 4i 



by Google 



TABLE OF OASES CITED. 



Ixziii 



Stnnder v. Wert VIrgliiU 14, 462, 4 

StnoM D. HelM 1 

V. Meyer M6, 5 

B. Pontlu a 

Street v. New Orlean* S 
Street BaUway v. CummiiUTiUe 6T4, 6i 

e 

Stieety v. Wood 585, £ 
SUeabel a. Hilvaokee, ftc B. R. Ca 4 
Striker B. Kelley 

StrinRfellow v. State 3 

Strong V. Clem 4 

V. Daniel 2 

p. Sute ezi, 8 

StTood e. Philadelphia e34, 7 

BtraDt D. Proctor 4 

Strathen d. R. R. Co. 6 

Stuart p. Blair T 

D. Clark 7 

V. CoromoDifealtli 4 

V. Hamilton 

B. KiowlU 1 

r>. Uird 81, 

c. Mechanic*', Ac. B«nk G 

a. Palmer fl 

B. School Diatrict S 

B. Warreo 4 

Sdtbba B. Lea T 



Stiipn, R 
BiwdaT* 



344, 880, S7t, 8Te 



laTaat v. Norrii 442 

Btortjcan b. Bitchint 177 

V- Kone T64 

Btorgei 0. CrowniDihield 25,68,340,360, 

851, 366, 450 

BtorgU B. Hall 456 

V. Spofford 471 

Slaroc'a Caia 56C 

StnyTeaant t. New Tork S41. 717 

Bableu B. Bedwell 748, 780 

Boeoeaalon of LanMlti 176 

Boooaaalen of Tanner lOB 

BoObtk Witche*, Caae of 882 

Saliiogi B. Shaketpeare &TG 

SnlltTan e. Adanu 222 

V. Blackwell 502 

Stmimcxu v. State 

SuDDer B. Beeler 224 

B. Bnel 524 

B. Hicks 19 

». Miller 445 

Son Matnal Ina. Co. b. ITaw Tork 1T2, 220 

B. Board of Liqnidatlon 836 

SuDltary t Erie B. R. Co. b. Cockier 2ZR 

V. Hummel 675 

Snnderlin b. Braditreet 527 

Baperrfaon b. Daria 788 

B. People 164 

B. United Sutei 19 

r. Wiacondn Cent. R. R. Co. 458 

Boperriaon of Election 111, 121 

BaperriuTa, Ac d. Keenan 104 

r. People 176 

Bnperriaara of Doddridge c Stout SO, 



Saperviaon of Da Page b. People 77B 

Superrlgon of Iroquois v. Keadj 189 

SuperTisonorjatkBOQ B. Bniili 250,272 

Snperrisors ot Koux Co. v. Davis 212 

Supervisors of Suhayler Co. b. People 168, 

169 

Sorgett 0. lA|dce 83 

SiuiiuelianDa Canal Co. b. Wright 674 

Susquehanna Depot v. Bony 280 

Sutlierlaud e. De Leon 444 

Button B. Asken 443 

B. Board 803 

B. Tiller 667 

SnttoD Hospital, Caae of 240 

Sutton's Heirs b. LooisTillo 708, 704 

Suydluun b. Broadiuut 358 

Suydim u. Hoore 711,716 

e. Williamson 19, 122 

Bwaim v. McRae 7S1 

Swain u. Mizner 365 

Swan D. Williams 84, 660, 668 

Swannti. Buck 97, 168, 183 

Swart B. Kimball 391, 392 

Swarlwout d. Railroad Co. 183 

Swayze v. Hall 167 

Swearingen, Exparte 28 

Sweeney n. Baker 540, 644 

Strilto. Fletcher 34S 

c. Newport 621 

0. Tousey 82 

B. Tyson 20, 109 

B. United States 85 

V. Williamsburg 235, 272 

Swindle b. Brooks 478 

Sydoor p. Palmer 115 

Syoionds b. Carter 523 

B. Clay Co. 303 

Syracuse Bank b. Daria 468, 462 



Tabor e. Cook 
Tafoya v. Qarcia 
Tafi V. Adams 
Tainter r. Worcester 
Talbot V. Dent 

n. Hudson 218, 6i 

Talkington b. Tomer 
Tallman b. Jsneiville 
Tanner v. Albion 
Tftppan B School District 
Tarble's Case 
Tarleton v. Baker 
Tarlton v. Fisher 

Tarpley v.Uamer 
Tash B. Adam* 
Tate B. Bell 

t>. M. K. ft T. R. R. Co. 



Tate's Execntor* b. Bell 
Taunton b. Taylor 
Tayloe, Ex parte 
Taylor a. Chamber* 



by Google 



TABLE OF CABB3 CITBD. 



B. CoramoD wealth 136 

0. Freucb 66 

B. HaU 5£J 

u. Hawkini 668. 5eR 

V. Harcy 696, 600 

V. MuCrackAQ 61 

V. Hilei 466 

V, NuhTlUe. &c R. B. Co. 667 

V. Newberae 142 

V. Peckham 266, 266 

E. PIftoe 110, 116, 130 

V. Plvmontb 661 

5. Porter 107, 111, iSi, 437, 649, 668 

u. Simple 413 

t. Skrine T6t 

v. Sute 401, 743 

V. Steami S5U 

0. St. Louii 252 

B. Taylor 80, 748. 777, 779, 788, 786 

V. Thominoil 27 9 

TecQiDMh B. PbiUipt 1T» 

Teel B. Yancey 116 

Tefl H, Teft 132, 486 

Temple r. Mesd 101, 760, 761 

Teu Eyck ». D. & R Canal 267, 667 

Tenneisee r. Daria 16, 16, 17 



Tenneuee, &c. U. R. Co. 

Tenney'a Ca«e 

TenneT e. Leni 

Terra Haute, &c R. R. Co. b. McEin- 

_le7 



706 



Terrett b. Taylor 198, 209, 291, 
Terrill b. Rankin l«o 

Territory v. Pylo BB5 

Terry b. Andersoa 461 

K. Bright 623 

f. FeUowt 643, 646, 653, 656, 668 
Teutonic In*. Co. b. O'Connor 247 

Texas v. White 1, T, 10, 26. 43 

Texas B. & I. Co. b. State 6!4 

Thai^ker v. Hawk 488 

Thainei Bank b. Lorell 731 

Thamei Manuf. Co. v. Lathrop B8, 472, 
616 
Tharp i>. Fleming 126 

Thatcher r. Powell 19 

The Slave Grace 368 

Thien V. Voegtlander 664 

Tliiitle v. Frodbury Coal Co. B4B 

Thnmai't Appeal 217 

Tbomai V. Boai4 of CommiaaioDer* 164 
B. CroBwell 



I. nnkin 



240 



B. Dunnaway 

B. Gain 615, 

V. Hubbell 

r. Leland 286,287,470,696, 

V. Railroad Co. 

i>. Rtchmond 286, 26S 

V. Scott 191, 467 



Thoma* r. Stickle 646 

ThnmaHon b. Stale 718 

Thompaon, ExparU 426 

r. Alexander 466 

V. CaldweU 449 

B. Carr Sl» 

V. Circuit Judge 788 

B. Commonwealth 862, 386 

B, Grand Gulf B. R. Co. 213 

B. Morttan 4SS, 467 

B. Pacific B. R. Ca 697 

B. Pitlaton 263, 281 

B. Read 450 

D. Schermerbom 260 

V. Sute 497, 601 

e. Steamboat Morton 493 

B. Walen 162, 163 

B. Whitman 24 

Thomion v. BooneTille 260 

B. Lee Co. 142, 270, 468 

Thorn B, Blanchard 634 

Thorndyke b. Boston 766 

Tiiame b. Cramer 139 

Tliomingtnn b. Smith 864 

Tliomtnn v. McGrath 466 

V. Turner 446, 461 

Thorpe B. Rutland t Burlington R. B. 

Co. 107, 160, 267, 840, 343, 708, 710, 

716, 717 

Throop B. LangdoD 749 

Threadgill b. Railroad Co. 763 

Thunder Bay, &c. Co. c. Speechly 691, 

781 

Thurber b. Blaukboume 24 

Thunfleld v. Jones 809 

Thurston v. little 646 

a. St. Joseph 267 

B. Thunton 69, 124 

Tide Water Co. d. Arclier 702 

V. CuBtar 611, UlS 

Tieman v. Rinker 216, 601, 002, 719, 

726 

Tiemev b. Tieroey 1S4 

TiftB.'Oriffln 464,602 

Tillinghasl o. Can 162 

Tillman e. Arllea 891 

D. Coche S14 

V. ShackletoD 74 

Tillson V. Rabbioi 646 

Tilton V. Swift 468 

Timi B. State 223, 391 

Tinicum Fishing Co. b. Carter 672 

Tinkler v. Coz 82 

Tintman b. Belviderv t Del. B. R. 

Co, 267, 676 
Tioga R. R. Co. v. Blosabarg, Ac. 

B. B. Co. 68 

Tipton p. Locomotdre Works 488 

Todd D. Birdsall 296 

B. Hawktni ^7 

V. Kankakee, &c. R. B. Co. 706 

B. Kerr 497, 498, 501 

0. Rough 521 

B, Troy 810 

Toledo Bank b. Bond 840 



by Google 



TABLE OF CASES CITED. 



Toledo, Ac R R. Co. e. Deacon 71 

f. JackMmvUk 248, B43, 71 

Tolen F. Tden 41 

Toll H. Wright H 

Tomlin D. Dubuqne, &c. B. B. Co. 6' 

Tomllnion ■>. Bniwh 3i 

r. JcMOp 3) 

Tonawanda R. R. Ca d. Munger 876, 71 

Tong D. M«TTiD 74, 44 

Toogood D. Spyrins 663, » 

Tool Company v. Sorris IE 

Torbiuh s. Norwich '21 

Toronto, An. R. Co. v. Cruiksliank 2C 

Tom]' D. Corliu il 

v. Field 547, &5S, » 

B. HilbiUT 91, 61 

Touchard b. Toncbard S( 

Tourne b. Lee 74 

Towanda Bridge Co., & 01 

Tower d. I^mb fi( 

Towie V. Fomer 1i 

V. Easum Railroad 444, 4f 

n. Marrett If 

Towler c. Chatterton 41 

Town of Pawlet o. Clark 291, SSS, 3£ 

TownMod D. De> Muiiea 81 

D. GHffln 188, 134, 5( 

r. KendaU 6C 

V. Todd ! 

V. Towmend S{ 

Tnbue v. Haji 6S 

Trade Hark Caau 1 

Trammell v. RiuiellTille 21 

Traniporlation Co. v. Chicago 439, 61 

V. Wheeling K 

Tnplej r. Hauler U 

Treadwar c R^waj Co. 71 

D. Sen Dauber E 

Treat h. Lord 7S 

Tremain t>. Cohoe* Co. Oi 

Trerett v. Weeden 36, IJ 

Trerino v. TreTino 4i 

Trice D. Hannibal, &c. B. R.Co. 71 

Trigally d. Memphit 2S 

Trim D. McPberaon 44 

T™t 17. Child I( 

Trombler f- Andi lor. General 660, 6{ 

Troppman, Trial of 8E 

Tron t>. Warren 24 

Troup V. Haight i 

Troy V. Winlen 24 

Troy & Boaton B R. Co. b. Lee 7C 

V. Northern Turnpike Co. 67 

Tmchelut v. Chu-leaton 4f 

Tme r. Plamley 6S 

Tmehart t>. Addlcki Ti 

Truman v. Taylor 5i 

Trualeea o. Bailey 110, 116, 4E 

v. McCaughy 444, 467, 4E 

B. McConnel 64 

B. Schroeder 2i 

Traatee* of Aberdeen Academy e. 

Aberdeen 2( 

Tnuteea of Caaa d. Dillon 21 

Tnuteei of Erie Academy c. Erie ii 



Tnuteea of Griiwold College v. State 638 
Trustees ofM. E. Clmrcliu. Ellia 688 
Troileea of Faria t>. Ciierry 142 

Tnuteea of Schools v. Tatman 230, 231, 
280, 29S, 336 
Trustees of Univenily v. Mclver 41 

Tnuteea of Vlncennei Unirereity v. 

Indiana 337 

Trusteei of W. & E. Canal n. Spears 676 
Truatees, &a, v. Auburn & Rochester 

B. B. Co. 267, 600 

B. Bailey 110 

D. Champayn Co. 603 

v. Shoemaker 142 

V. Tatman 336 

Tuckahoe Canal Co i;. Bailiosd Co. 4B7, 

480,662 

Tucker b. Aiken 761, 777 

r. Harria 328 

r. Magee 416 

D. Virginia City 236,263 

Tucker et at., Trials of 40T 

Tugman v. Chicago 229, 248, 247 

Tuiler, h rs 64, 466 

Tuilii D. Fleming 23 

Tully, Exparu 447 

Tuolumne Redemption Co. v. Sedg- 

Turberille v. Stampe 70S 

Turley b Logan Co. 163 

Turner, Matter of 14, 364 

B. Suie 324, 601, 746 

Turnpike b, Champney 776 

Turnpike Co. b. News Co. 661 

t>. DaTidson Co. 838 

■>. People 64 

V. SUte 476 

D. UiUon R B. Co. 842 

B. Wallace 267 

Tuacalooaa Bridge Co. o. Olmated 177, 

180,133 

Tuttle p. Gary 237 

p. Strout 176 

Twambly v. Henley 81 

Twitchell p. Comnionwealth 2d 

Tyfcr V. Beecher 611, 668, 664, 660 

V. People 161, 162, 202, 218 

B. Tyler 64 

Tyson v. School Krectors 209. 268, 281, 

282, 467, 604, 608 

Tyiee r. Commonwealth 301 



U. 

TJbrig p. St. Lonii 
UUery v. Communwealth 
Underhill u. Manchester 

B. Welton 
Underwood, Matter of 

c. Lillv 

p. McHuITce 

p. McVeigh 
CnioD V. Durkes 



by Google 



TABLB OF OASES OITED. 



TTdIob Bank t>. Hm fi 

V. Sum 
UnloD Imp. Co. v. Common WMlth 8 
Union Idi. Co. n. Hoge 
Union Iron Co. o. Pierce IIS, lU, 340, i 
Union Paciflc B. B. Ca v. United 

Statei 
Union Railway Co. v. Cambridge S 



Union R. R Co. i 

United Btatet v. I 

V. Aredondo 

V. Barr 
V, Batdite 

V. Callendar 
t>. Cailiiel 
c. Cailicait 
V. CiaBin 

V. Coolidge 

e. Oorueli 
p. Cox 



Trmnbe 



t. CrulkBbank 2, 10, 16, 22 859, 36 
*!», 401, 709, T 
J. DaTenpart 4< 






D. GUmi . 
p. Goldman 
c. Grentlioute 
V. Hamilton 

V. Hartwell 
V. HHtoeU 

o. Hudson 

V. Jailer of Fajette 

B. Lanuaiter 
i>. Little 



o. Marigold 

V. HcComb 

c. McKee 

V. Hino., &a R. B. Co 

B. Morriaon 

c. New Bedford Bridge 28, S 

v. Ortega 

e. Palmer 

V. Paaimora 4 

p. Perctieman 

V. Perei 

t. RaRvdale 

D. Railroad Bridge Co. 

e. Railroad Co. 

>. Rector 



United Sutei v. Reed 664, SU 

p. ReeM 14, 16, 100, 491, 7D9 

p. Reynold! 34 

P. Riley 397, 400 

p. Sacramento 380 

D. Samperyac 444 

0. Tiemey 162 

p. Tobacco Factory IS 

p. Tynen 446. 471 

V. Union Pacific R. B. Co. 170, 480 

V. Wition 28, 898 

United Slntei Bank n. Daniel 19 

p. Halitead «i 

v. Norton Ifi 

V. PItnten' Bank S07 

Unity 0. Burrage 458, 482 

UniTeraaliat Sodety p. Proridence CSS 

Umvenity s. Uliooia 840 

Univenity of N. C. p. Foy 33> 

Updegraph v. Commonwealth 685, 587 

Upjohn V. Board of Health 741 

Upihaw, Ez parte 176, 177, 179 

Upton D. South Reading Branch R. R. 71^ 

U»het r. Ciricheiter 281 

p. HcBraUiey 161 

p. Sererance 664, 666, 566 

Utiey D. CampbeU 522 



Valtn r. Ungloii lOT 

Van AUen p. Askwoti 607 

Van Alstyne e. Indiana P. ft C. 

B. R. Co. 61 

Van Anktn v. Wettfall 622 

Van Anmerp, Matter of 179 

Van Andale v. LaTCrty 58A 

Van Baalen c. People 246 

Van Baumbacli u. Bade 347, 848 

Van Bokelen v. Brooklyn City R.R. Co. 10 
Van Bokkelin r. IngersoU 01 

Van Camp v. Board of Education 488 
Vance v. Little Rock 286 

p. Vance 340 

Vanderbilt v. Adami 
Vanderliurat v. Bacon 
Vanderpoel v. O'Hanlon 
Vanderzee p. McGregor 
Van Deusen r. Newcomer 
Vandine, Petitioner 
Van Hagan, Ez partt 
Van Horn p. People 
Van Home v. Dorrance 
Van Inoagen c. Cliicago 
Van Kleek v. Eggleaton 
Van New v. Hamilton 

p. Pacard 
Van Pelt v. DaTenport 
Van Renitelaer p. Ball 

p. Kearney 
V. R«ad 



848,728 



698,741 



28, 82 
257, 810 
348,444 
S4E^444 



by Google 



TABLE OF CASES CITED. 



Y*nBipei\ 

Tan Slyke v. In*. Co. 
Tui ValkeDbOTg v. Brown 



Walker V. CiDciDiuU S4, as, IDT, 1 



1. WaddeU 

Vuick V. Smith 202, 668, t 

Vason ■. Anguiu i 

Vaxer p. Georg« t 

Vaaghan d. Seade i 

Vaime v, Lee i 
Teaaie f- China 

V. Uajo 711, 1 

r. Moore 7 

Veatie Bank c. Fenno 696, 6D6, t 

Veedcr •>. lima SStt, ! 

Tenard o. Croat ( 

Venice d. Mardock ! 
Tenier p. Canon 

r. Simmoiu 1 

Tickibnrg b. Tolnn ( 
Victory, The 

Vidal B. Girard'B Eiecatota t 
Vilu V. Milwaukee, &c. R. R. Co. t 

Tmcennes d. HichardB 266, C 
TiDceniiei Uoivenity d. Indiana 

Vioceot V. Nantucket 260, ! 

Tiolett D. Violett 4 
Virginia, Ei parte 



100, 139, IM, 146 



Viscfaer F. Vitcher 
Vi«e B. Hamilton Ca 
Vogtewing V. State 
Von Hoffman b, Qaincf 
Voorlieea, Matter of 
Toae V. Hortoa 



W. 

Wabash. &c. Co. v. Been 
Waco B. Powell 
Wade D. Richroond 

B. State 
Wadleigh u. Gilman • 

Wadaworth's Adm'r d. Smith 
Wagaman r. Byen 
Wager c. Troy Union B. R. Co. ( 
Wagner r. Biuell 
Wail p. Ray 
Waiie B. MerriU 
Wilcott F. People 



Walei r. Lyon 

r. Sletwn 

r. Walei 
Walker r. Caldwell 



14,4 



D. Trnmbull 
I Wallace, In re 

V, Menaaha 

V, Sbaron Tnuteea 

V. Sheitoti 
WbIU, £x parU 
WaUy'i Heirt v. Kennedy 
Walnnt «. Wade 
Walpole B. Elliott 
WalBchlager b. Liberty 
WsliioQ B. CommoDweahh 
Walter f. Bacon 

Walters p. l>uke 
Waltham e, Kemper 
Walther t>. Warner 
Walton p. Develing 

B. Greenwood 
Wallon'i Leiaee i>. Bailey 
Walti B. Waltz 
Wameeit Power Co. n. AUeo 
Wfimmack p. HolLoway 
Wanser d. Atkinion 
Wantlan b. White 
Wanzer u. Howland 
Wubiglee e. Lo« Angelea 
Ward p. Barnard 

p. Farwell 

V. Flood 

V. Greencastle 

ti. GreenvQIe 

V. Maryland 

D. New England, &c. Co. 

B. SUIe 

F. Warner 
Wardkw F. Bosard 
Ware b. Hylton 

p. Little 

V. Miller 

Warickshall'i Case 
Waring IT. Jackaon 

p. Saraiinah 
Warner p. Cnrran 

D. Grand Haren 

p. Paine 

p. People 

p. Scott 

p. Trow 
Warren p. Charlei town 



432,486 

7, 184, 236 

207, 478 



22, 491, 699, 008 



by Google 



TABLE OF 0A8BS CITED. 





330 


B. Gtjnn 


605 


V. Henley 631 


833,086 


::&„?;' 


292 
21 


V. P.tH 


699 


r. Shuman 


71 


17. fiute 


898 


V. St. 1-iul, tc R. S. Co. 


660.669 


WuTCD Manuf. Co. v. £tiia lu. Co. 22 


Warlman p. Fliiladelpbia 


744 




60 


Wa^bnm v. Franklin 


446,468 


WMhbnme ». Cooke 


627,686 


W„U,.^on..H.„.». 


243 


741 


0. NaaliTiUe 


7OT 


ir. Page 83, 97. 181 


Waihington ATenoe 604. 018. 619, 633 




712, 714 


Wa»liin«ton Co, r. Berwick 


278 


V. Franklin B. H. Co. 


174 


Washington Ii». Co. r. Price 608. 600. 611 


WftBhington Univenily v. Rou«e 840 


Wa«on V. Waller 617, 643, 644 


565,563 


Water, V. Leech 


843 


Walertown i: Mayo T22 


741. 748 


Walertown Bink, Ac. r. Mix 


607 






232 


Water Worki Co, v. Burkhart 


183. 649, 


606,668 


684, 69S 


Watkini, Ex parte 


428 


„. Haight 


460 


D. Holman-i Leiaee 


123 


». Inae 


761 


r. Walker Co, 


661 


Walton B. Arery 


677 


V. Farri. 


676 


r. Jone* 


577,678 


r. McCarlhy 




r, Mercer EE8. 404, 485, 470 


r. New York Cent. K.R. Co 


349,861 


f. State 


162 


V. ThnTber 


74 


Watson's Caae 


151 


Watts V. Greenlee 


523 



Way V. T^wii 69 

V. Way 70, 71 

Waytand v. Connty CoranitHionert 603 
Wayman v. Southard "" 

Wayne Co. d. Waller 
Wayrick p. People 
Weaver v. Cherry 

B, Lapsley 08.116,177.179.180 

Webb f, Baird 408, 487 

V. Den 452, 463 

(T, State ST8 

Weber p. noiinelly 

p. Harbnr Commissioner* 

D. Morris. St. 

D. Reinhard SOZ, 613, 620 

Webster d, French 



Webster v. Harwlnton 227, 230, 876 

v. Held 600, 608 

e. Rose 866,856 

Webtter, Pn»fiN*or, Trial of 899 

Wecherley v. Onyer 776 

Weckler ». Chicago 694 

Weed r. Black 167 

e. Donovan 468 

V. Fost«r 633 

Weeks v. Milwaakee S3D, 472. 610, 620, 

622. 626, 681, 633, 639, 648, 741, 748 

Weet r. Brockport 304. 305 

Wehn V. ConmiistioneTi 265 

Welitenger v. Spnuinoe 349, 440 

Weightnian v, Washington 258, 267, SOS, 

804 

Weil c. Iticord 748 

Weill t>. Kenfield 168, 181 

Weimer e. Banbnry 202, 436, 645 

Weir V. Cram 218 

p. Day 236 

B. St. Paul, *c E. R. Co. 649 

Weise v. Smith 728, 720 

Weiamer u. Dongia* 268. 604, 607 

Weiss p. Whittemore 622 

WeUterp.Hade 10.207,218,270,280,469, 

470,694 

Welbom p. Aikin 863 

Welch p- HotchkiM 246, 246, 614 

V. Po«t 179 

V. Stowell 246, 742 

p. Syke* 23 

e. Widsworth 857, 446, 450, 46S 

Welker p. Potler 154 

Welitiigton, Petitioner 1S7, 212, 218 

Wellman, In re 163, 188 

V. Weckerman 667 

Weils V. Batn 40, 42 

V. Burbank 644 

p. McClenning 60 

r. Peold* 23S 

p. Scott 606 

p. Somercet, Ac, R. R. Co. 651 

e. SuperTisor* 270 

p. Weston 472 

Welsh p, St, Louis 306 

Welton p, MiHOuri 601, 603 

Wendiil B. Durbin 02 

Wenner v. Tliomton 184 

Wenzler v. People 176 

Wemnsg p. Pawling 24 

West V. Bancraa 687 

p, Sansom 852 

West Branch, Ssc Canal Co. p. Mnlli- 

ner 673 

West Hartford p. Water Commla- 

■lonert 003 

West Jersey R. R. Co. v. Cape May, 

*«. R. R. Co. 676 

West River Bridge Co, v. D\x 341, 662 
West Virginia Trans. Co. r. Volcanic 

Oil Co. 666. G66, 662 

West WiKoniln R. Co. r. SnpeTvisors 

ofTrempeleauCo. 830,310 

Westbrook d. Deeting 167 



by Google 



TABLE OF CASfiS CITED. 



Weitm CoHece r. CleTeUnd 254. 294, 808 
Wertem FunS 8.ying. Society >,. 


Whitehnrst t- . Coleen 








Pliibdetpliit 


309 


Whiteley v. Adams 


K6. 


Wwtern H. B. Co. p. De Orsff 


ISO 




Western UnLon Telegwpli Co. ». 


R. R. Co. 


63, 


Cw*w 


243 




. White 


V. M»yer 


696 


HonntainsR. R.Co. orN. 


H. 




154 


White RiTer Turnpike Co. v 


Central 




RRCo. 


652. 


... Lewi. 


24 


White School House v. Post 




Weftrall V. Preaton 


(wa 


Whitfleld V. Longest 


247, 727, 




68,109 


Whiting D. Barney 






697,698 


«. Esrle 




e. Foster 


692 


p. Mt. Pleasaot 




WethercU b. SLillman 


24 


Whitley p. State 






612 


Whitn.«n c. Boston, 4e. R B 


.Co. 


Weynunn b. Jefferson 


252.257 


p. Hapgood 






Whitney t.. Allen 
p. nagtdate 




t.. County Com'ri 23! 


232,293 




Weyrich V. People 


876 






WhsliD ». M.eomb 


98 


p. SUt« 




Wheat B. R«{r<dftt« 
WheMon pTpeten 


788 
28,82 


p. Stow 
p. Wyman 




Whe*ler o. Chiciigo 


01 


Whitson p. Franklin 


246, 


». Chnbbudt 


188. 1B« 


Wlitttaker v. Johnson Co. 




■>. CiDcinnati 


265 


Whitlemore v. Weiss 






776 


Whittier v. Wendell 




D. PhiUdelphia 


154 


Wliittlngham v. Bowen 






693 




58,192. 


r. Shields 


501 


Wliorton p. Morsnge 




». Spenuer 


772 


Whyie V. NashTille 




n. Slate 


178, .wa 


Wick p. The Samuel Strong 




■>. Wall 


20S 


Wicks V. De Witt 




Wheeling Bridge Case 
Wlieeluck v. loung 


730. 7112 


Wider p. Eait St. Lonia 




651 


Wiggins B. Chicago 




Whe«lock'g Election Cue 


778 


Wiggins Ferry Co. n. East St. I..ouit 


Whipley p. HcCune 


777 


Wilbraham v. Ludlow 




Whipple >. Fairar 


444 


WUby D. Eliton 




Whitoomb's CaM 


391 


Wilcoi r. Deer Lodge Co. 




White, AVpiirti 




p. Jackson 




p. Buchanan 


493.494 


r. Kassick 


23, 


c. Carroll 


645 


P. NolM 




». Charleston 


651 


p. Smith 




t..Clai* 


658 


P. Wilcor 




V. Cnm'rs <rf Norfolk Co. 


704 


Wild D. Deig 
WUder V. Ciie 




V. Flynn 


454 




r.n«t 


48.847 


B. Maine Cent. R. R. Co 




■. Kendrick 


486 


Wilde. V. Van Voorlils 




0. Kent 


216, 7M 


W!ldey p. Collier 




V. The Mayor 


243 


Wiley t.. Fiournoy 




c. Nashrille, &c S. It. Co. 


695 


K. Parmer 




K. Nichols 


626.627 


Wilkes r. Wood 




F. People 61B, 619, 630, 633 


Wilkes's Case 




r. PhlllipMon 


266 


Wilkin. V. Detroit 




p. Scott 


196 


p. Miller 




p. Stamford 


205,263 


WilkiDion K. Cheatham 


474. 


p. Tallman 


249 


D. Leiand 111, 


123, 199. 


0. Wliite 132, 400, 657 


Wlllard p. HarTey 




B. Taxoo aty 


252,256 


p. Killtngworth 


280, 


f.Zane 


74 






WhiEebread o. Tlie Queen 


404 


p. People 


812. 


Whited p. UwU 


177, 170 


0. Presbury 


020, 


Whiiehe^ p. Latham 


849 


Willcoxp. KflMick 


24, 




Wrlley d. Belfast 




Co. 


705 


Williams V. AuguaU 





b, Google 



TABLE OF CASES CITED. 



Willwmi D. Bank of Mlchlsu 


84 


WinoiM, 4c B. R. Co. v. DenmMi 704 


t>. Btdlemtn 




154 


1-. Waldron 


702, 715 


B. Bryant 






Winslow, Ez parte 
V. GrindiJl 


426 






382,400 


59 


!>. UtIvidlOQ 




234.236 


Winaor i;. Tlie Queen 


401 


V. Detroit M, a02. SIB, ^9, 034 


Winter v. Jonea 


S46 


0. Haina 




M9 


r. ThUtlewood 


786 


r. Hill 






Wirea r. Farr 


449 


D. Jobn*OD 




467 


Wirth e. WilminjTtMi 


241 


e. Kirldjuid 




19 


Wiaconain Cent. R B. Co. d 


Taylor 


V. Nuural Bridge Flank B. Co- 678 


Co. 


80, 613. 637 


«.N. Y. CentndR.E.&>. 


678,690 


Wiicooaln Ri»er Tninp. Co. 


„.L>on. 36 


r. Newport 
r. Non-U 




334,336 


Wianen v. Monroe 


177, 179 




17 


Witham r. Oibom 


658 


r. OliTM 




17 


Withe™ w. Stale 


418 


p. Pay»on 


177 


179, 212 




480 


... Pwpte 




176 


Witnwa- 0. Schlatter 


69 


». HobSrto 




23B 


Witt «. State 


390 


». School Diitrict 


98, 806, 639, 661 


Wixon V. Newport 


257 


p. SUtB 




177. 891 


WoarCtF. Winnick 828, 


824, 449, 467 


D. Stein 




7((1 


Wolcott V. Bickej 


416 






197 


V. Wigton 
Wotcott Hanut. Co. v. tJpha 
Wolfe I'. CoTinKton, 4c B. R 
Woia r. New Orleana 


71.94 


v.Uiu- 




607,786 


n 662 


r. Sufdam 




122 


Co. 679 


r. WilllansoB 




124 


366 


WilUar v, Baltimora 




44C 


Wood n. Brooklyn 


241 


Willis r. Jelineck 




866 


V. Filzgerald 


14 


D. Owen 




06,139 


u. Fort 


188 


c. State 




896 


B. Kennedr 


367,468 


Wi liiton p. Colkett 




467 


p. McCann 


106, 167 


Wi marlh u. Burt 




163 


V. RandaU 


606 


Wi raington e. Macka 




616 


B. Stephen 


61 


Wi mlngion R. R. Co. 


>.Beld 


840 


r. Watkinaon 


23 


Wilmot V. Morton 




294 


Wood'i Appeal 


42 


Wilaon V. Blackbird Creek Haiah Co. BOl. 


Woodbridge B. Detroit 61B, 622, 681, 693. 




660,068,780^738 




727 


D. Brown 




860 


Woodbnm V. Mannf . Co. 


86,738 


V. ColliM 




646 


Woodbory i.. Grime* 


840 


V. Crockett 




667 


V. Thompson 


m 


I.. Filth 




644 


Woodcock V. Bennett 


4St 


t.. Franklin 




667 


Woodfair. Caw 


660 


tp. HaKle»ty 




463 


Woodfolk B. NaahTflte R. R. Co. 70* 


V. Jackeon 




24 


WoodhuU V. Wagner 


300 


V. King 




1*8. 751 


Woodlawn Cemetery v. Everett 741 


r. Johna bland Chnreh 


678 


Woodruff e. Fiihw 


688 


p. McKenna 




446,464 


D. Neal 


676 


V. HcNaoee 


601 


724. 728 


V. Parham 


601,808 


0. New York 




688,678 


V. Scrugga 


446,468 






644,675 


V. Trapnall 
Wooda V. State 


20,846 


V. Ohio. 4c. B. B. Co. 


828 


718 


P. People 




4M 


Woodiide V. Wagg 


761 


V. Roctlbrd, 40. R. R. Co. 


706 


Woodion 0. Murdock 


10a,]T4 


V. Runran 




528 


Woodward b. Lander 


536 


P. Salamanca 




271 


r. Worcester 


310 


B. School Di.irict 




226 




601 


i>. Simonton 




507 


e. Tremere 


23 


V. State 


886,899 


412, 420 


Wool, Matter ol 


412 






Wootaoy b. Comraerclal Bank 224 


Wilaon'i Caw 




421 


WorcCTter i: Norwich, 4c. R. B. Co. SS9 


Winbigler v. Lot Adto 




811 


Worceiter Co o. Worceitec 


603 


Winchelt v. State 




390 


Work B. Corrington 


38 






496,606 


D. State 


891,494 


Windlinm v. Portland 




282 


Worth B. Butler 


623 


Wingatc V- Siuder 




504 


Worthen v. Badge! 


193 


Winniboro v. Smart 




245 




17 



b, Google 



TABLE OF CASES CITED. 



Wnr, Export, 


378 


Teatman r. CraodeU 619, 634, 7S4 


;. KttibDrg 


619,630 


Yeaton r. Bank o( Old Dommion 889 


Wicford V. The Feopla 


246, 248, 742 


V. Dnited Statei 444, 471 


17right V. Bona 


6oe 


Teazel n. Alexandn' 741 


.. Boaton 


020,634 


Yerger v. BaiDi 100 


B. Carter 


678,690 


Yonoiki i>. SUte 727 


v.Chia80 


619 


York V. Feue 636 


r. Cntdlebaugh 


464 


Yott II. Stont e£7 


p.DaFm. 


223,224 


Yott'* Report 468 
Yoimg B. Beuditer 456 


r.Duiluui) 


46S 


r. Hkwkiu 


«6,46T 


v. Black 60 


cLeCbira 


69 




».Uwbv 


622 


IT. Barriaon 604 


v!o^r 


487 


V. HuKenzie 668 


449 


V. Miller 621 


..F«opt; 


376 


». 8t«te BKDk 116 


r.Sttto 


400,401 


V. ThoniM 614 


r. Woodgata 


628 


B. Woloolt 443 


p. Wrlglit 


138 


Yotiagbtood V. Betum 230, 246. 2B4, 618. 
614. 016, 'n^ 743 


Wroth V. Johnwn 


772 


Wymadotw p. Drennto 


334 




Wy»t» V. BoeU 


646 




WjDebamer r. People 


106, 202, 206, 200. 




434, W6 


448, 706, 720, 721 


Z. 


Wjime, I* n 


188 


Zkbriike ►. R. B. Co. 142, 279 


T. 




Zeiler o. ChapmaD 767 






Twcy B. T»iic7 


3D2.44B 




TatM e. I^iuing 


880 


788 


t. Milw.nkM 


247, 676, 67e, 742 


ZiUke D. Goldberg 231 


V. P»ople 


874 


Zottnun t>. San Frandico 262 


e. T«t«s 


497 


Znmboff v. State 720 


TeOeTB-Teite 


16 


ZjUtn'i Caw 486 



b, Google 



b, Google 



CONSTITUTIONAL LIMITATIONS. 



b, Google 



b, Google 



CONSTITUTIONAL LIMITATIONa 



CHAPTER I. 

DEmnnONS. 

A State is a body politic, or socsiety of men, united together 
for the purpose of promoting tfaeir mutual safety and advautage 
by the joint efforts of their combined strength.^ The tenns 
nation and State are frequently employed, not only in the law of 
Dations, but in common parlance, as importing the same thing ;* 
but the term nation ie more strictly synonymous with people, and 
while a UDgle State may embrace different nations or peoples, a 
mgle nation will sometimes be so divided politically as to consti- 
tute several States. 

la American constitutional law the word St<ae is applied to the 
BBTeral members of the American Union, while the word notion 
is applied to the whole body of the people embraced within the 
jnrisdiction of the federal goyemment. 

<Sin>ere^!)Wly, as 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 
itsdf, whether resting in a single individual, or in a number of 

1 Vattd, b. 1. c. 1 S I ; stars o" Conit Georgia, G Pet. I, 62 : Chat*. Cb. J.. In 

|«7j WlMt Int. L«w, pt. 1, c. 2, { 2; Teiu b. White, 7 W»U. 700, 720 ; VMtel. 

HaHMk, Lit. Law, S3; Boar. L*« Diet tupra. 

"State." " A mnltittide of people united ■ Stoi; on ConiL } 207,' 1 Black. 

tofMfaer bjr a eomniDnian of intereit, and Com. 40; Wheat. Int. I«w, pt. I, c. 2, 

bj oommoa lam, to wliich they labmit | G ; Halleck, Int. Lair, 63, S4 ; Auitin, 

iritb one accord." Borlamiqai, Politic ProTinoe of Juriipradence, Lee. VI. ; 

Law, c h. See CbUliolm d. Georgia, 2 Chipman on Qovernmeiit, 137. "The 

Ball. 4ST ; Georgia c. Stanton, 6 WalL riglit of commanding finallj In dvil 

K sodetr-" Borlaroaqui, Politic Lair, o. 6. 

■ Tltmptvn, J., in Cherokee Nation c. 
1 



by Google 



2 OONaTITDTrOKAL LIMITATI0N8. [CH. I. 

indmduals, or in the whole body of the people.^ In the view of 

internatioDal law, all eovereiga Statae are and mnet 

[• 2] be equal in rights, * because from the very definition of 

sovereign State, it is impossible that there should be, in 

respect to it, any political snperior. 

The sovereignty of a State commonly extends to all the sub- 
jects of government within the territorial limits occupied by the 
associated people who compose it ; and, except upon the high 
seas, which belong equally to all men, like the air, and no part of 
which can rightfully be appropriated by any nation,^ the dividing 
line between sovereignties is usually a territorial line. In Amer- 
ican constitutional law, however, there is a division of the powers 
of sovereignty between the national and State governments by 
subjects : the former being possessed of supreme, absolute, and 
uncontrollable power over certain subjects throughout all the 
States and Territories, while the States have the like complete 
power, within their respective territorial limits, over other sub- 
jects.' In regard to certain other subjects, the States possess 
powers of regulation which are not sovereign powers, inasmuch 
as they are liable to be controlled, or for the time being to become 
altogether dormant by the exercise of a superior power vested in 
the general government in respect to the same subjects. 

A con8titviion is sometimes defined as the fundamental law of 
a State, containing the principles upon which the government is 
founded, regulating the division of the sovereign powers, and 
directing to what persons each of these powers is to be confided, 
and the manner in which it is to be exercised.* Perhaps an 

1 T*tlel, b, 1, c. 1, S Si Storj oo or k 8t«t« court, m if the line of dirinoa 

CoiiitS20T; Halleck, Iiit I«w, 05. In wu traced b/ landmarkt mod moau- 

other words, when it ii ui independent menta Tuibl« to the eje." Tanry, Cb. J., 

8ut«. Chipman on GoTernment, 1S7. in Ablemtui d. Booth, 21 How. GOO, 614. 

" Vattel, b. 1, c. 23. J Ml ; Whe«t. Int. See Twbto'i Cue. 13 W»U. 897. Tliat 

LftW, pt. 2, c. 4, S 10. the general diTiaion of powen between 

' 3/<:Z«iii, J., in Ijcenie CkwB, 5How. the federal uid State goreninienti haa 

604, 6SS. "The power* of the geneml not been disturbed b; the new imend- 

govemment and of the State, although ments to the federal ConrtiCation, aee 

both exiit and are exercised within the United Sutei v. Cruikihank, OS U. 8. 

tame territorial limits, are yet teparate Bep. 642. 

anddiBlinctioTereigntiea,actinKBeparate- * 1 Bout. Insti 0; Duer, Const Joris. 

I7 andindependentljof each other, witfain 26. "B7 the constitution of a State I 

their respective spheres. And the sphere mean the body of those written or uo- 

of action appropriated to the United written fundamental laws which legokte 

States is as far beyond the reach of the the roost important rights of the higiier 

Judicial process issued bj a Slate judge magistrates and the most eMential ptlri- 



b, Google 



CH. LJ DBFDrrriONS. 8 

equally complete and aocorate definitioo would be, that body of 
roles and maxims in accordance with which the powen of sove- 
reignty are habitually exercised. 

In a mnch qualified and very imperfect sense every State may 
be said to possess a constitution ; that is to say, some leading 
principle has prevailed in the administratioa of its government, 
until it has become an understood part of its sjmtem, to 
which obedience * is expected and habitually yielded ; [* S] 
like the hereditary principle in most monarchies, and the 
euBtom of choosing the chieftain by the body of the people which 
prevails among some barbarous tribes. But the term conttitit- 
Honal government is applied only to those whose fundamental rules 
or maxims not only locate the sovereign power in individuals or 
bodies designated or chosen in some prescribed manner, but also 
define the limtta of its exercise so as to protect individual rights, 
and shield them against the assumption of arbitrary power.' The 
number of t^ese is not great, and the protection they afford to 
individual rights is &r from being oniform.' 

In American constitutional law, the word conttitution is used 
in a restricted sense, as implying the written instrument agreed 
upon by the people of the Union, or of any one of the States, as 
the absolute rule of action and decision for all departments and 
officers of the government, in respect to all the points covered by 
it, which must control until it shall be changed by the authority 
which established it, and in opposition to which any act or regu- 
lation of any such department or officer, or even of the people 
themselves, will be altogether void. 

The term wicomtitnAvmal law must have different meanings in 
different States, according as the powers of sovereignty are or are 

lafH of the labjecU." Hackmto«b on ititution does Dot mske the gOTennDcnt 

ttie Stodj of tbe Law of Naidk lod » conititntional goTernmeDt, until the 

lUtioii*. tnonftrch is deprived of power to ut It 

> CdbODii'i DtMiniiiUon on QoTom- adda at will. The gnxti of Magna 

■ent. Works, I. p. 11. Charto did not make the Engliih a con- 

■ AbaolDtenionarch«,ntidera preMon ttitiitional monarehy; it wat onl; after 

of necewitj, or to win the ^tat of their repealed TlolationB and conflrmalion* of 

people, lometiniea grant them what i* that in«trnnieiit,^d when a forllierdl*- 

eaOed a conatitntioD ; bot thii, lo long at regard of ita pTOTiiiooi had become 

the power of the monarch Ic recogniied dsigeroni to the Crown, that fondamen- 

aa lupreme, can be no mot* than hi« tal righta could be laid to have cooHito- 

jTo m ie e that he will obeerva it« ^m- tional gnarantie*, and the goTemment to 

tUodi, and condact the goTemment be conitltutlonaL 
accwdtD^r- The mere grant of a oob- 



by Google 



4 OONBTITDTIOKAL LQflTATIONS. [cO. I. 

not poesesaed hj the iDdividoal or body which exercises the paw- 
ers of ordinary l^islation. Where the law-makiDg department 
of a State is restricted in its powers by a written fundamental 
law, as in the American States, we nnderstand by nnconstita- 
tional law one which, being opposed to the fundamental law, is 
therefore in excess of legislative authori^, and void. Indeed, 
the term unoonatitutional law, as employed in American jurispru- 
dence, is a misnomer, and implies a contradiction ; that enactment 
which is opposed to the oonstitction being in fact no law at all. 
But where, by the theory of the government, the exercise of 
complete sovereignty is vested in the same individual or body 
which enacts the ordinary laws, any enactment, being an exercise 
of power by the sovereign authority, must be obligatory, and, if it 
varies from or conflicts with any existing constitutional principle, 
it must have the effect to modify or abrogate such principle, in- 
stead of being nullified by it. This most be so in Great Britain 
with every law not in harmony with pre-existing constitutional 
principles ; since, by the theory of its government, Parliament ex- 
ercises sovereign authority, and may even change the Con- 
[* 43 stitntion * 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 oooatiturioQ resides in the ordi- 
nary law-making power of the State, the term unconttitutional late 
can mean no more than this : a law which, being opposed to the 
settled maxims upon which the government has habitually been 
conducted, ouyht not to be, or to have been, adopted.' It follows, 
tiierefore, that in Great Britain constitutional questions are for the 
most part to be discussed before the people or the Parliament, 
since the declared will of the Pariiament 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 

> 1 BUdi, Com. lei : De TocqaeTill^ um in the United State*. Serem r. So- 

DemocrMf Id AmeiioL, c. 6; Broom, g<Dft. 2 Bop. Ct. R.(Ont.) 70; Leprohn v. 

Contl. Iaw, T9e ; Flichd, English Con- Ottawa, 3 App. R. 622. 
ttltution, b. 7, c. 6. In the Dominion of > Mr. Auitln. In hU ProTiiicc of Jnrit- 

CanndA. where the power* of eoTerelgittj prudence, Lee. VI., eiplaioi and enlargea 

■re confided for exerciae, In part to the apoo thii idea, and givea illuatratioiu to 

Dominion Parliament and in part to the ahow that in Enftlaud, and Indeed onder 

ProTinciai Parliamenta, with a aaperin- mott govemmeaE*, a rule pretcribed b^ 

tending authority OTer all in the imperial the law-making anttaorltr may be nn- 

goTemmenl, the term unconatitational conatltnUoiial, and yet legal and obliga- 

law bat a meaning correiponding to ita toT7. 



by Google 



OH. I.] DEFIHIIIONS. 6 

courts wheD it is attempted to put the will of tbe l^Dlature in 
force. For the will of the people, as declared in the Constitu- 
tioQ, is the final law ; and the will of the legislature is law only 
when it is in harmony witJi, or at least is not opposed to, that 
controlling instrument which governs the legislative body e<^uaUy 
with the private citizen.^ 

^ See Cbapter TIL /nit. 



by Google 



OONSTITDTlOlIAIj LDUTAIIONS. [CH. II. 



[•5] •CHAPTER II. 

THB CO^tSTITnriON OF THB UNITBD STATES. 

The govemment of the United Statea is the ezifitiog repre- 
seotative of the national government which has always in some 
form existed over the American States. Before the Revolution, 
the powers of government, which were exercised over all the 
colonies in common, were so exercised as pertaining either to the 
Crown of Great Britain or to the Parliament ; but the extent of 
those powers, and how far vested in the Crown and bow far in 
the Parliament, were questions never definitely settled, and which 
constituted subjects of dispute between the mother country and 
the people of l^e colonies, £nally resulting in hostilities.' That 
the power over peace and war, the general direction of commer- 
cial intercourse with other nations, and the general control of 
such subjects as fall within the province of international law, 
were vested in the home government, and that the colonies were 
not, therefoi'e, sovere^n States in the full and proper sense of 
that term, were propositions never seriously disputed in America, 
and indeed were often formally conceded ; and the disputes 
related to questions as to what were or were not matters of inter- 
nal 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 circnmBtances of 
danger threatened them ; and this tendency led to the New Eng- 
land Confederacy of 164S, to the temporary Congress of 1690, to 
the plan of anion agreed upon in Convention of 1754, but rejected 
by the Colonies as well as the Crown, to the Stamp Act Con- 

I 1 PitkiD'i Eiit U. 8. c. S ; Lift and CoIodIbI CongreM of 1766 ; BMiua;'i 

Worki of John Adami, Vol. I. pp. 122, BevolDtlon in Sooth Carolina, pp. 0-11 ; 

161 i Vol. n. p. 811 ; Work! of JeOenoD, 6 Bincroft'i U. S. c. 18 ; 1 Webaler** 

Vol. IX. p. 294 i 2 Manh*ir» Wuhing. Worki, 128 ; Von Holit, Cotiit. Hist. c. 

ton, c. S; Declaration ot Bigfat* b; 1 ; Stor/ on Contt. { 18S s( m;. 



by Google 



CH. U.] THE OOSBTITDTION OF THE DNITBD STATES. 7 

gresB of 1765, &iid finally to the CoutineDtal CongreBS of 1774. 
When the diffiuulties with Great Britain culminated in actual 
war, the Congress of 1775 asBomed to itself those powers of 
eztemal control which before had been conceded to the 
Crown or to the * Parliament, together with such other [* 6] 
powers of sovereignty as it seemed essential a general 
government should exercise, and thus became the national gov- 
ernment of the United Colonies. By this body, war was con- 
ducted, independence declared, treaties formed, and admiralty 
jurisdiction exercised. It is evident, therefore, that the States, 
though declared to be " sovereign and independent," were never 
strictly so is their individual character, but were always, in 
respect to the higher powers of sovereignty, subject to the control 
of a centi'al authority, and were never separately known as mem- 
bers of the fiunily of nations.^ The Declaration of Independence 

1 " All the coontrj now pouetud by it wm not then an oncommoa opinioti 

Ibe Uailed States wbm [prior to the Revo- that the niiappropriated lands which be- 

lallonj a part of the dominioDi appertain- longed to the Crown pueed, not to the 

ing to tbeCrownof GreatBritaJn. E^ery people of ttie colony or Slate withiD 

acre of land in tbii coontry was then wboae limits tbey were situated, bat to 

held, mediately or immediately, by graDta the whole people. On whatever prioci- 

trom tliat Crown. All the people of this plea this opinioD rested, it did not give 

connlry were then salgecls ot the King way to the other, atid thirteen sove- 

of Great Britain, and owed allegiance to reignties were considered as emerged 

him; and all the civil authority then ex- trttat the printnples of the Kerolntion, 

bting or exercised here flowed from the combiaed with local conveoience and 

bead of the British empire. They were conaiderations ; the people, neverthelen, 

to a strict sense feUow-iubJecta, and in a continued to consider tliemselves, in a 

variety of leapeda one people. When natloaal point of view, as one people; 

tke Revolution commenced, the patriots and they continued without interniption 

did not awert tliat only the same afBni^ to manage their national concems accord- 

and bo(3b1 connection tnbslsted between Ingly. Afterwards, in the harry of the 

Ibe people of the colonies, which subsis- war, and in the warmth of mutual confl- 

ted iKtween the people of Gaul, Britain, dence, they made a confederation of the 

and Spain while Roman provinces, name- Stales the basis of a general goremmenL 

ly, only tbat affinity and social connec- Experience dis&ppointed the expectations 

tion which result Ih>m the mere circam- they had formed from it; and then the 

stance of l>eing governed by one prince ; people, in their collective capacity, eitab- 

diOcrent ideas prevailed, and gave occa- lished the present Constitution." Per 

Mon to the Congress of 1774 and ITTG. Ja^, Cb. J., in Chishotm v. Georgia, 2 

"The Kevolntion, or rather the Dall.419,4T0. See tliis point forcibly pnt 

Declaration of Independence, found the and elaborated by Mr. A. J. Dallas, in 

people already nnited for general par- his Life and Writings by O. H. Dallas, 

pews, and at the same time providing 200-207. Alio in Texas v. White, 7 

for their more domeetic concems by Wall. 724. Professor Von Hoist, in his 

State conventions and other temporary Constitutional Eiitory of the United 

arrangements. From the Crown ol States, c. 1, presents the same view 

Great Britain the sovereignty of their clearly and fully. Compare Hard, 

eonntry pwsed to the people <^ it ; and Theory o( National Existence, 1S6. 



by Google 



8 CONSTETDTIONAL LIMITATIONS. [OH. U, 

made them sovereign and independent StAtee, bj alU^etber abol- 
ishing the foreign jurisdiction, and substituting a national govern- 
ment of their own creation. 

But while national powers were assumed by and con- 
[* 7} ceded to* the Congress of 1775-76, that body was uever- 
theless strictly revolutioaary in its character, and, like all 
rcTolutioaaty bodies, its authority was undefined, and coold be 
limited only, firtt, by instructions to individual delegates by the 
States choosing them ; geamd, by the will of the Congress ; and 
third, by the power to enforce that will.' As in the latter par- 
ticular it was essentially feeble, the necessity for a clear specifi- 
cation of powers which should be exercised by the nataonal 
government became speedily apparent, and led to the adoption of 
the Articles of Confederation. But those articles did not concede 
the full measure of power essential to the efficiency of a national 
government at home, the enforcement of respect abroad, or the 
preservation of the public faith or public credit ; and the difficul- 
ties experienced induced the election of delegates to the Consti- 
tutional Convention held in 1787, by which a constitution was 
formed which was put into operation in 1789. As much larger 
powers were vested by this instrument in the general government 
than had ever been exercised in this country by either the 
Crown, the Parliament, or the Revolutionary Congress, and 
larger than those conceded to the Congress under the Articles of 
Confederation, the assent of the people of the several States was 
essential to its acceptance, and a provision was insei'ted 
[* 8] in the Constitution that the ratification • of the conven- 
tions of nine States should be sufficient for the establish- 
ment of the Constitution between the States so ratifying the 
same. In fact, the Constitution was ratified by conventious of 
delegates chosen by the people in eleven of the States, before the 
new government was organized under it ; and the remuning two. 
North Carolina and Rhode Island, by their refusal to accept, imd 
by the action of the others in proceeding separately, were ex- 
cluded altogether &om that national jurisdiction which before 
had embraced them. This exclusion was not warranted by any- 
thing contained in the Articles of Confederation, which purported 

> See remark* of /rmM, J., inPenhal- troedoctrineon thUinbject ii Terj ciMTljr 
low V. DiMUie'* Adm'r, 8 Dall. M, 01, uid eitpUined hj Ckaie, J., Id Wue d. Hjlton, 
of Blak, J., in the lung cate, p. 111. The 8 DalL 189. 231. 



by Google 



OH. n.] THE CONSTITUTION OF THB TINITBD 8TATKS. 9 

to be articles of " perpetual union ; " and the action of the eleven 
States in making radical revision of the Constitution, and exclud- 
ing their associates for refusal to assent, was really revolutionary 
ID character,^ and only to be defended on the same ground of 
necessity on which all revolutionary action is justified, and which 
in this case was the absolute need, fully demonstrated by experi- 
ence, of a more efScieut general governmeut.* 

• Left at liberty now to assume complete powers of sov- [* 9] 
ereignty as independent governments, these two States 
saw fit soon to resume their place in the American family, under 
a permission contained in the Constitution ; and new States have 
since been added from time to time, all of them, with a single 

1 Hr. Vmi Boren hM Mid of It that it brMchof uironeuticleliabTMchof the 
WM"uiberoic,tbO[ighp«rhapaalawl«w, whole treaty; and that a breach coIDIl>l^ 
■cL" Political Pttrtiei, p. 60. ted bj either of the partiei abaoNei the 

■ "Two qtieatioiu o( a rerj delicate otheri.BDdaDthoriietlhem, Ifthejpleate, 
■store preaent themiel*ea on thii ocot- to pronounce the compact violated and 
iiMi ; 1. On what principle the confedera- void. Sliould it onhappiij he neceuarj 
tkin, which atandi in the /ormof ftiolemn to appeal to these delicate truChi for ft 
coinp*ct among the State*, can be niper- joatiiBcatlon tbr diapenBing with the con> 
•eded witbont the tutanimoai conieDt of aent of partlcnlar Statei to a diuolution of 
the partie* to it ; 2. What relation !■ to the federal pact, will not the cooiplaining 
nbatat between the tiitie or more Statea, paitiea find It a difficult task to aniwer 
ntifying the Conttitntloo, and ths re- tbe multiplied and Important tntroctioDi 
maining few who do not become partie* with which the? may be coofrontedl The 
to it Tbe flnt qneaUon ii antwered at time haa been when it was incumbent on 
MIC* hj Tecnning to the abaolnle nece*- oa all to Teil tbe ideoa which thli par*- 
li^j of tbecaie; to the great ptinciple of graph exhibits. The scene ii now changed, 
aetf-prMerraUon ; to (he transcendent law and with it the part which the same mo- 
«f nature and of nature's God, which de- tlTei dictate. The lecond qnestion is not 
oterea that the safety and liappineai of leas delicate, and the flattering prospect 
•odetr are the object* at whlchallpoliti- of it* being merely hypothetical forbid* 
eal inatitDtioiia aim.and to which all *iich an OTer-cnriooa discussion of It. It Is one 
laatlnitioii* miwt be tactiflced. Perhapt, of those case* which mn*t be left to pro- 
alao, an aoswer may be found witbont Tide fbr iteelt. In general it may be ob- 
•eaiching beyond tbe principles of the serred, that although no political relation 
eompact itself. It ha* been heretofore can *nhsi*t between tbe ■isenting and 
■oted, among the defect* of the coofed- dissenting Sutes, yet the moral relations 
eration, that in many of the States it bad will nmain tucanoelied. The claim* of 
receiTcd no higher sanction than a mere jnstice. both on one side and on the other, 
la^alatire latiflcation. The principle of will be In force, and mnst be fulfilled ; the 
teaprocality seem* to require that it* right* of humanity rnust in all cues be 
ebligatioQ on (he other Stale* should be duly and mutually respected ; whilit con- 
reduced to tile aame *tandBrd. A com- sidetations of a common Interest, and 
pact between independent sorereigns, abore all the remembrance of the endeai> 
bonded on act* of legiilative antliority, log scenes which are past, and the antid- 
caD pretend to no higher ralidity than patlon of a speedy triumph over the ob- 
a leagne or treaty between the partie*. staclea to reunion, will, it is hoped, not 
It ia an eatahliahed doctrine on the sub- arge in fain iRoderatiim on one side, and 
jeet «r tt«atlM, (bat all irf tbe artides are pmUmx on tlie other." Federaliat, No. 
rnDtoallyconditioiis of each other; that a 48 (by Vtufuoa). 



by Google 



10 CONSTITCJTIOHAl, UMlTATIONa. [CH. n. 

exception, organized by the conseBt of tbe general government, 
and embracing territoiy previouBljr andet ita control. The ex- 
ception was Texas, vbich bad previoosly been an independent 
sovereign State, but which, by tbe conjoint action of its govern- 
ment and that of the United States, was received into the Union 
on an equal footing with the other States. 

Without, therefore, discussing, or even designing to allnde to 
any abstract theories as to the precise position and actual power 
of the several States at the time of forming the present Constita- 
tioD,* it may be said of them generally that they have at all times 
been subject to some common national government, which has 
exercised control over tbe subjects of war and peace, and other 
matters pertaining to external sovereignty ; and that when the 
only three States which ever exercised complete sovereignty 
accepted the Constitution and came into the Union, on an equal 
footing with all the other States, they thereby accepted the same 
relative position to the general government, and divested them- 
selves permanently of those national powers which the others had 
never exercised. And the assent once given to the Union was 
irrevocable. " The Constitution in all its provisions looks to an 
indestructible Union composed of indestructible States."* 

The government of the United States is one of enumerated 
power*; tbe national Constitution being the instrument which 
specifies them, and in which authority should be found for tbe 
exercise of any power which the national government assumes 
to possess.* In this respect it differs from tbe constitutioas of 

> 6m thti tDbjwl dlMONed In 01b- Wmll. 718; United 8l*M r. Craikahank, 

bom V. Ogden, 9 Wheat 1. 92 U. 6. Rep. 642, 660. 661, per WaOt, 

* Chat, Ch. J., in TezM v. Wbite, Ch. J. ; Wetotor d. Bade, 62 Penn. Si. 474 ; 

7 Wsll. 700, 725. 6«e Dniled Bute* >. Bpoirerc.Eifler,! Heisk.SSS. Thetentli 

Cathoart, 1 Bond, 660. ■mendment to the Conititntion proTidn 

■ "The gaTeniin«iit of the United thmt "the poweti not delegated to the 

State* can claim no powen which are United Slalei b^ the Conititntion, nor 

not granted to it bj the Conititntion ; prohibited hy It to the Statei, are re- 

and the power* actnally granted mnii wired to the Btatei refpectirety, or ut 

be inch h are expreailr given, or given the people." No power ii conftrred hj 

by neeeuar; ImpltL-ation." Per Mart/mil, the Conititntion npon CongreM to Mtab- 

Ch. J., in Martin s. Hunter'i Letaee, 1 lUh mere polioe regnlationi within tlie 

Wheat. 301, 826. " This Inatrument con- Sutei. United Stitee b. Dewitt, 8 WaiL 

tatni an enumeration of the powen ex- 41. See Slaughter Honae CasM, 10 Wall 

preMlygrantedby the people to theiTgoT- SO. Or topioTide for copyrightinj; trade- 

ernment." UanlmU, Ch. J., in Oibboni v. marki. Tnd»4Mfk CaK*, 100 U. S. 

OKden,8WheaLl,18T. SeeOalderE.BnU, 82, 
SDall.SSO; Briieoer. Bank ot Saitvckj, Aa to the general diridon of pow«n 

11 PeL 267; GUman o. Philadelphia, 3 betweendwDomltiionof Cmadaand tbe 



by Google 



OH. n.] THE CONSTITUTION OF THE DSITED STATES. 11 

the * several States, which are not grants of powers to ( * 10] 
the States, but which apportion and impose reBtrictions 
upon the powers which the States inherently possess. The 
general purpose of tlie Constitution of the United States is 
declared by its foundeis to be, '* to form s more perfect union, 
establish justice, insure domestic tranquillity, provide for the 
common defence, promote the general wel&re, and secure the 
blessings of liberty to ourselves and our posteiity." To &ccom> 
pUsh these purposes, the Coi^^ss is empowered by the eighth 
sectioQ 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 throughout the United States. 

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

8. To regulate commerce with fore^u 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. 

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

6. To provide for the punishment of counterfeiting the securi- 
ties and current coin of the United States. 

7. To establish post-o£Sces and post-roads.' 

8. To promote the progress of science and the useful arts, by 
secnring 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 punish piracies and felonies committ^ upon the high 
seas, and offeuces against the law of nations. 

pmrincci, Me Citizeu' Ini. Co. s. Par- p&Ient). Helm r. Natiotud Bank. 43 Ind. 

MM, 4 C«it. Sup. Ct 816. 167 ; s. c. IS Am. Rep. 396 ; BoHida v. 

I Commerce on the high wu, though Hnnt, 70 IIL 100 ; s. c. 22 Am. Bep. 63 ; 

between ports of the tame Stale, ii held Crittenden v. White, 23 Minn. 24 ; t. c. 23 

to be under the coalrolling power of Con- Am. Rep. 076 ; Craoton d. Smith, 37 Mioh. 

greu. Lord v. Stesnuhip Co.,102 U. S. 809; *.0. 20 Am. Rep. 614. Butthe&Uitei 

641. nay paei Itwt Tegnl&ting the use of 

' Aa to the power to exclude mstter patented article!. Fatteraon v. Kentucky, 

(nm the mail, §t»Expartt Jackion, X llBiuh.Sll; s.c. 31 Am. Rep. 220 ; ■. o. 

D. 8. 727. in error, 97 TJ. S. 601 ; State v. Telephone 

* Thi« power ftezclniiTe. The State* Co., 36 Ohio St. 296; a. o. B8 Am. Rep. 

cuBot pMt Iftwi TdgulaUng the tale of 688. 



by Google 



12 OOHSTITDTIONAI. LIMITATIONS. [CH. H. 

10. To declare war, grant letters of marque and reprieal, and 
make rules concerning captures on land and water. 

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

12. To provide and maintain a navy. 

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

land and naval forces. 
[* 11] * 14. To provide for calling forth the militia to execute 

the laws of tiie oation, suppress insurrections, and repel 
invasions. 

15. To provide for organizing, arming, and disciplining the 
militia, and for governing such part of them as may be employed 
in the service of the United States, reserving to the States re- 
spectively the appointment of the officers, and the authority of 
training the militia according to the discipline prescribed by 
Congress. 

16. To exercise exclusive legislation in all cases whatsoever, 
over such district not exceeding ten miles square as may, by oea- 
sion of particular States, and the acceptance of Congress, become 
the seat of government of the United States; and to exercise like 
authority over all places purchased by the consent of the legis- 
lature of the State in which the same shall be, for the erection of 
forts, m^azines, arsenala, dockyards, and other needful buildings. 

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

Congress is also empowered by the thirteenth, fourteenth, and 
fifteenth amendments to the Constitution to enforce the same by 
appropriate legislation. The thirteenth amendment abolishes 
slavery and involuntary servitude, except aa a punishment for 
crime, throughout the United States and all places subject to 
their jurisdiction. The fourteenth amendment has several ob- 
jects. 1. It declares all persons born or naturalized in the United 
States, and subject to the jurisdictioa thereof, to be citizens 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 privileges or immunities of citizens of the United States, or 



by Google 



CH. n.] THE COHSTIT0TIOH OP THE UHITED STATES. 18 

to deprive any person of life, liberty, or property, without due 
process of law, or to deny to any person within its jurisdiction 
tlie equal protection of the laws. 2. It provides that when the 
right to vote at any election for the choice of electors for Presi- 
dent or Vice-President of the United States, representatives in 
CoDgress, the executive and judicial officers of a State, or the 
members of the legislature thereof, is denied to any of the male 
inhabitants of such State, being twenty-one years of a^, and 
citdsens of the United States, or is in any way abridged, except 
for participation in rebellion or other crime, the basis of congres* 
Eional representation therein shall be reduced in the proportion 
which the number of such male citizens shall bear to the whole 
number of male citizens twenty-one years of age in such State. 

3. It disqualifies from holding Federal or State offices certain 
penons who shall have engaged in insurrection or rebellion against 
the United States, or given aid or comfort to the enemies thereof. 

4. It declares the inviolability of the public debt of the United 
States, and forbids the United States or any State assuming or pay- 
ing any debt or obligation incurred in aid of insurrection or rebellion 
gainst the United States, or any claim for the loss or emancipa- 
tion of any slave.' The fifteenth amendment declares that the 

' " That ameDdmeDt wu nndoubtedlj and compl&inti went made lliat, notwltb- 

pnqtoKd for the pnrpOM of ftally pn>t«ct ituiding the abolitinn of Hnety uid in- 

ing iht newly-made cIiImiu of tlie Afri- Tolntiur; tervitude, the freedmen were 

caa iBce In the enjoyment of their free- In lome portioDi of the conntry tnbjected 

dam, and to preTent dUciimlnatiDK State to diubiiitie* from which others were ex- 

lefftdatioD against them. The generality empt. There were alio comptainia of the 

of ttie langnage naed neceaaarily extendi existence In certain section! of tlie South- 

lUproTi*k>ii* to all petsons, of every race ern Stales of « feeling of enmity, growing 

tod color, FreviODily to iti adoption, the oat of the collisions of the war, lowardi 

GfU Rights Act had been passed, which citiunf of the Northi Whether these 

declai«d that cltiiena of the Uail«d States complainU had any Just foundation, is im- 

(^erery ruse and color, wlthoutregard to material; they were belieTed hy many 

•oy prerions condition of slaTery or ia- to be well founded, and to prevent any 

rolnntary wrritude, except as a paniih. possible legislation hostile to any cIms 

ment for crime, tbotild hare the same from the CAOses mentioned, and to obTi- 

rtghts in every State and Territory to make ate objections to legislation similar to 

snd enforce contracts, to ine, be parliea, that embodied in the Civil Right* Act, 

sod give evidence, to inherit, purchase, the fourleenth amendment was adopted, 

lease, sell, own, and convey real and per> This la manifest from the ditcnisioni in 

tonal property, and to ftill and equal beo- CongreM with referenoe to it There was 

ffil of all laws wad proceedings fbr the no diversity of opinion as to its object 

•ecori^ of penoti and property as is en- between those who favored and those who 

joyed by white dtiiens, and sboald be opposed its adoption." Ur. Justice Fidd 

iDbjBct to like pnniahments, pains, and pen- in San Hateo County c. Bod. Fac. R. R. 

iltiea, and to none other. The vaUdity of Co. U. S. Ct Ct. Cal. July, 1882. 

Ibis Mt WW questioned in niany quartert, " A Stale acts by Its leglalatiTe, ite 



by Google 



14 COKSTirtmONAL LUITATIOHa. [OB. n. 

right of citizena of the United States to vote sball not be denied 
or abridged bj the United States or by any State, on account of 

race, color, or previous condition of servitude.' 

execatlTe,or iU judicial ButhoritiM. It KirCkndv. Hotchkiu, 100 U. S. 491 ; nw 
can act id do other way. The conititu- tromregulatingwarehouiechargei: Mnnn 
tioiMl proTiaion, therefore, niut mean o. Illinoli, 04 D. B. 118; or charts for 
that no igenty of the State, or of tlie the traiuportatioD of freight and paaaeo- 
ofBcera or agents by whom ita powen are gen ti; common caniert : Chicago, &c. 
executed, «haU deny to any person iritliio It. R. Co. ». Iowa, 04 U. S. l&G. 
ita jurisdiction the equal protection of the The ftonrieeDth ftmendment doe* not 
laiTt. Whoever by virtue of public poiU profeM to aecure to all penona in the 
tion under a State government deprives United States tlie benefit of tlie ume 
another of property, life, or liberty with- laws and the same remedies. Great di- 
oat due procesa of law, or denies or takes venities may aiul do exist in ttiese ra- 
away tlie equal protection of t!ie tawi, specta in different Stales. One may hare 
violates the constitutional inhibition ; and the common lair and trial by jnry ; an- 
as he acts in the name and for the State, other the civil law and trial by the conrt 
and is c:lot]]ed with the State's auihoriij, But like diversities may also exist in dit 
■lis set is that of the State. This must fcrent parts of the same State. TlieSutes 
be BO, or the constitutional prohibition baa frame their laws and organize their courts 
no meaning." Strong, i,,ia Expartt Yit- with some regard to local pecniiarities 
ginia, 100 U. S. 339. Approved, Neat v. aod special needs, und this violates do 
Delaware, 103 U. S. 370, S9T. conltitntionai requirement. All that one 
' See, OB to these amendments, Story can demand nnder the last clause of j I 
on Const, (4th ed.) c. 40, 47, 48, and App. of the fourteenth amendmeDt is, that he 
to Vol. II. The adoption of an amend- shall not be denied the same protection of 
ment to the federal constitution has the the laws which is enjoyed by other pet> 
effect to nullify all provision* of State sons or otlier classea in the same place 
constitutions and Stale law* which con- and under like circnnutancea. Missouri 
met therewith. Ex parte Turner, Chase v. Lewis, 101 U. S. 22. 
Dec. 157 i Neal c. Delaware, 103 U. S. The fonrteenth amendment not only 
870; Wood V. Fitzgerald, 3 Oreg. 568; gave citiEenship to colored persons, but 
Portland v. Bangor, 65 Me. 120; a. c. 20 by necessary implication it conferred 
Am. Rep. 081. See Griffin's Case, Chase upon them the right to exemption from 
Dec. SOB. The new amendments do not nafriendly legislation against them dis- 
enlarge the privilege of suffrsge so as to tinclively as colored. — exemption fhim 
entitle women to vote. Bradwell v. State, discriminations imposed by public author- 
16 Wall. 180; Minor p. Happersett, 21 ity which imply legal inferiority in civil 
Wall. 162. The fourteenth amendment society, lessen the security of their right*, 
does not entitle persons as of right to sell and are steps towards reducing them to 
intoxicating drinks against the prohibl- the condign of a subject race. The de- 
tions of Stale laws ; Barbemeyer v. Iowa, nial by Slate aatbority of the right and 
18 Wall. 120; it is not violated by the privilege in colored persons to participate 
grant by a State, under its police power, as jurors in the administration of justice 
of an exclusive right for a term of year* Is a violation of this amendment. Strau- 
to have and maintain slaughter- houses, der r. West Virginia, 100 U. S. 303; Vir- 
landing* for cattle, and yards for inclosing ginia v. Rives, 100 U. 8. 81S ; Ex pari* 
cattle intended fnr slaughter, with in certaiif Virginia. 100 V. 8. S80; Neal d. Dela- 
specifled parishes: Slaughter House Cases, ware, 103 U. S. 370. Bee. fortlier. United 
16 Wall. 80 ; nor by denying the right of States k. Reese, 92 U. S. 214. Since these 
jury trial in Stale courts; Walker u. San- amendmenis, as before, sovereignty for 
vlnet, 92 U. S Bep. 90: it does not pre- the protection of life and personal liberty 
elude a Slate from taxing its citizens for within the reepective States rests alorw 
debt* owing lo them tVom foreign debtors: with the States; and tlie United States 



by Google 



OH. II.3 THE OOH8TITUT10N OF THE UNITBD STATES. 15 

The execQtiTe power ia vested In a president, who is made 
eommander-in-cfaief of the army and navy, and of the militia of 
tiie several States when called into the service of the United 
States ; and who has power, b; and with the consent of the Sen- 
ate, to make treaties, provided two-thirds of the Senate concur, 
aod, with the same advice and consent, to appoint ambaasodors and 
dther public ministers and consuls, judges of the Supreme Court, 
and other officers of the United States, whose appointments are 
not otherwise provided for.^ 

The judicial power of the United States extends to all cases in 
law and equity arising under the national Constitution, the laws 
of the United States, and treaties made, or which shall be made, 
ander their authority ; to all cases affecting ambassadors, other 
public ministers and consuls ; to all cases of admiralty and mari- 
time jurisdiction ; to controversies to which the United States 
shall be a party ; to controversies between two or more States ; 
between a State and citizens of another State ; between citizens 
of different States ; between citizens of the same State claiming 
lands under grants of different States ; and between a 
• State or citizens thereof and foreign States, citizens [* 12] 
or subjects.' But a State is not subject to be sued in 
the courts of the United States by citizens of another State, or 
by citizens or subjects of any foreign State.^ 

The Constitution and the laws of the United States, made in 
pursuance thereof, and all treaties made under the authority of 
the United States, are declared to be the supreme law of the 
land ; * and the judges of ever; State are to be bound thereby, 

oaoDOt take cogninace ot Invuioiu of the a party, may be remoTed to the feietti 

priTilege of anffrage when ntx, color, or oonn for trial, if % federal qnestion ig in- 

previoiueoDditioDiiDolthegToandtlieTe- toItmI. Railroad Co o Mi»iMitip1 102 

of. United Sutes v. Beete, 92 U. S. 214; TJ. 8. 186. That State* are not laable 

Uoited Stalei v. Craikihank, 92 U. S. 642. except with their own consent ipb TUil- 

8«e, fortber, Bailroad Co. o. Brown. 17 toad Co. ■>. Teonewee, 101 U. S. 887; 

Wall.4«; Kenn«rdD.Loniii«na,92U.8. Railroad Co. v. Alabama, 101 D. S, 882. 

480; Pennoyer d. HbH. 06 D. 8, 7U; Noelaim arite* against any ftoTemment 

PearMn v. Yewdall, 96 U. S. 294; Mo- infkvor of an individual, by re«it>n of the 

Millen 0. AndeMon, 96 D. 8. 37 ; Darid. mitftatance. lachei, or unauthorized ener- 

•on B. New Oriesnt, 96 U. S. 97; Kirt- die of power by ita offloe™ or agenti. 

land V. Holchkiai. 100 U. 8. 491; Ten- Oibboni v. United Btatee, 8 Wall. 269; 

■MMre p. DaTw, 100 U. 8. 267. Clodfelter ». Stale, Hfl N. C, 51. 53 ; Lang- 

' U. S. Cooit. art. a. ford B. United Statea. 101 U. 8. 841. 
* V. 8. Conat. art. S, { 3. • "The United States in agnreniment 

■ U. 8. Const. Ilth Amendment Bnt with aiithority eTirnding orer the whole 

a suit in a Sralecoart,towbioba State is territory ot die Union, acting npon tba 



by Google 



16 COySTITUTIONAL LUOTATIONS. [OH. n. 

any thing in the constitutioQ or laws of any State to the con* 
trary notwithstanding.* 

It is essential to the protection of the national jurisdiction, and 
to prevent collision between State and oational 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, providon is made 
by the Judiciary Act for removing to the Supreme Court of the 
United States the final judgment or decree in any suit, rendered 
in the highest court of law or equity of a State in which a de- 
cision could be had, in which is drawn in question the validity 
of ft treaty, or statute of, or authority exercised under the United 
States, and the decision is against their validity ; or where is 
drawn in question the validity of a statute of, or an authority 
exercised under any State, on the ground of their beii^ repug- 
nant to the Constitution, treaties, or laws of the United States, 
and the decision is in favor of their validity ; or where any title, 
right, privilege, or immunity ia claimed under the Constitution 
or any treaty or statute of or commission held or authority exet- 

SUtet Mid the p«ople of tha Sbitei. awftj private property vithout compen- 

While It i* limiled in Uie nnmber of ita sation. Cornet b. Winton, 2 Terg. 148. 

powen, Ki far u its lovereignlj extendi It in*7 opeMte retrooctiTel;. Hanen- 

it U gnpreme. So St&te gOTemmeDt c«d aiein r. Lynham, lOD U. S. 483. A Stale 

exclude it from the exerciie of an; an- law in conflict vitb it mn«t give wa; to 

Uiority conferred upon it bj the Contti- ita anpetior autJiority. Ware v. Hyllon, 

tution, obatTQct its authoriied offluera 8 Dall. 99; Teaker v. Teaker, 4 Uet 

againat ita will, or withhold from It for (K7.) 33; People v. G«rke, 6 Cat. 881. 

a moment the cognizance of an; nibject See, farther, United Statei t>- Aredondo, 

which that inatrument baa committed to S Pet 031 ; United Btatea b. Ferchemaii, 

IL" 5ln»ij,J.,inTenneaweo.DaTia,100 ^ Pet. 51; Garcia ». Lee, 12 PaL 611; 

V. S. 357, 203. Haaenatein u. Lynham, 100 TJ. S. 483 ; 

' U. S. Conit. art. 8; Owing* k. No^ Bopea v. Clinch, 8 Biatch. 304; United 

wood'i Leaaee, 6 Cranch, 844 ; MoCuUoch Sutoa d. Tobacco Factory, 1 DilL mt ; 

p. Uaryiand, 4 Wheat. 810; Foater p. The Cherokee Tobacco, 11 WaU. 616. 

NeilaoD, 2 Pet. 263, S14 ; Cook ». Hoffat, li thla laat caae it ia decided, aa before it 

£ How. 29g ; Dodge v. Wooliey, 18 How. had been at the Circuit, that a law of Con- 

881. When a treaty haa been latiflcd by greai repugnant to a treaty, to that extent 

the proper formallciea, it ia, by the Con- abrogatea it. 

Btitutton, the lupreme law of the land, * Martin v. Hunlor'a Leaiee^ 1 Wheat, 

and the conrla have ro power to inquire BOt. 834; Cohena v. Virginia, S Wheat 

Into the authority of the penona hy whom 2S4 ; Bank of Uufted St«t«a v. Norton, S 

it wa« euteted into on behalf of the fbr- Harah. 423 ; Braynard n. Harthall, 8 Pick, 

eign Ration : Doe v. Braden, 16 How. 6S6, 194, per Parlor, Ch. J. ; Spangler'a Case, 

667; or the power* or rlghU racogniaed 11 bCch. 296,; Ttrble'i Caae, 13 Wall, 

by It in the nation with which it waa S97; TenDeawe n. DaTb, 100 U. S. 

made : Uatden ■;. Ingeraoil, 6 Hich. 873. 267. 
It* foroe la auch that it may erea take 



by Google 



OH. n.] THE COKBTirDTTON OF THE D-SITBD STATES. IT 

cised under the United States, and the decisioD is against 
the * title, right, privU^e, or immunity specially set up [* 13] 
or clfumed by either party under such Constitution, treaty, 
statute, commia^OD, or authority-^ 

But to authorize the lemoval under that act, it must appear by 
the record, either expressly or by clear and necessary intendment, 
that some cme of the enumerated questions did arise In the State 
court, and was there passed upon. It is not sufficient that it 
m^ht have arisen or been applicable.' And if the decision of 

> Act* 1789 mkI 1867 ; B. B. IS73, title ita origiuiJ or sppellste form, or both, ■■ 

U; ch. U. the witdom of CongreH nwj direct ; and 

" It b Mttlod law, u eitabliihed b; laitlj, — 

wetl-coDiidered d«cii<oni of thii court, "That it ii not lufllcienl to exclode 

pimonnced upon fiill ergaiiMnt, and after t)ie Judicial power of tbe United Statei 

mmture deliberation, notably in Gobeni v, from a particular case that it iuTolTes 

Tirginia, 6 Wheat. 204 ; Oabom e. Bank qoeitiana which do not at all depend on 

eT United Statea, 9 Wheat. 786 ; Mayor the Coeatitutioi) or laws of the United 

>. Cooper, 6 Wall. S4T ; Gold Water ft Btatea ; but when a queation to which the 

WaahinK Co. n. Kejea, 06 U. 8. ISS ; and judicial power of the Union i« extended 

Tenneaife r. DaTia, lOO V. S. S67 ; bj the Conititntion forma an ingredient 

"Hikt while Uie eleventh amendtnent of the ori^al can«e, it i« within the 

of tfaemitiaiMl Conttitution ezdudea the power of CoDgresi to give the circuit 

jndiciBl power of the United State* from eonrta Juriidiction of that canae, aJchongh 

toita, in law or equity, commenced or other qneitioua of fact or law may be in- 

I^oaecuted aguDtt one of the United rolved in ft." AaWon, J,, in Railroad Co. 

BtBle* by citiieni of another State, inch v. HiulMippi, 102 U. S. 135, I4a 

power ia extended by the Conatitntion to * Owinga v. Norwood's Leaaee, 6 

toita coDimencedorproaeeutedbyaSlate Craneh, 344; Martin v. Hunter*! Les- 

againat an individual, in which the latter tee, 1 Wheat. 804 ; Inglee r. Coolidge, 

dtmanda nothing from the former, but 2 Wheat. 363; Miller e. Nicfaolli, 4 

only aeeki the protection of the Cotitti- Wheat. 811 ; Witliamt b. Nortis, 12 

tatloB and lawi of the United Statea Wheat 117; Bickie v. Btarke, 1 Pet. 

againit the cbUm or demand of the Stale; 94; Harrii r. Dennie, 3 Pet. 292; Fiih- 

" That a caie in law or equity coDdatf er*! Leatee o. Cockerell, 6 Fet. 246 ; New 

•r tbe right of one part?, aa welt ai of OrleatM v. De Armai, 9 Pet. 223, 234 ; 

the other, and may properly be aaid to Keene 9. ClaAe, 10 Pet. 291 ; Crowell i>. 

arise tmder the Conatitntion, or a law of Bandell, 10 Pet. 866 ; McKinny v. Car- 

Ae United Staiea, wbenever ita correct roll, 12 Fet. 66 ; Holmei «. Jenniion, 14 

dcanoD depend* upon a oonetrnction of Fet fi40; Scott ». Jonea, 6 How. 343; 

ehber: Smith v. Botiter, 7 How. 7S8; Willlama 

" That caMi arlaing under the law* of v. Oliver, 13 How. Ill ; Calcote b. Stan- 
die United Stetea are audi a* grow out of ton, IB How. 248 ; Maxwell v. Newbold, 
Oe legielation of Coogreaa, wbeiher they 18 How. 611 ; Hoyt i'. Shelden, 1 Black, 
Mutitnle the right, or privilege, or claim, 616; Faroey c. Towle, 1 Black, 850; Day 
er protection, or dsfenoe of the party, p. Oallup, 2 Watt. 97 ; Walker v. Villa- 
li whole or in part, by whom they are raao, 6 Wall. 124; The Victory, 6 Wall. 
averted; 882 ; Hamilton Co. r. Maia., S Wall. 682; 

"That exeept in the caaee of which Olbconc. Chouteau, 6 Wall.314; Worthy 

thii court ia gives by Hie Conatltntlaa v. CommlitioiMra, 9 Wall. 611 ; Measen- 

flriginal jnriadictian, the jndlcl^d power ger v. Maaou, 10 Wall. 607 ; Iniurance 

•t dM Didted Stsiea it to be «ieiciaed in Co. r. lyeatBrer, 11 Wall. 204 ; HoHanna 



by Google 



18 CONSTTTDTIOKAL LtMITATIONS. [CH. H. 

the State court is in favor of the right, title, privilege, or exemp- 
tion BO claimed, the Judiciary Act does not authorize such re- 
moval.' Neither doea it where the validity of the State lav is 
drawn in question, and the decision of the State court is t^ainst 
its validity.' 

But the same reasons which require that the final decision upon 
all questions of national jurisdiction should be left to the national 
courts will also hold the national courts bound to respect the 
decisions of the State courts upon all questions arising under the 
State constitutions and laws, where nothing is involved of national 
authority, or of right under the Constitution, laws, or treaties of 
the United States; and to accept the State decisions as correct, 
and to follow them whenever the same questions aris,e in the 
national courts." With the power to revise the decisions of the 

ff. O'Snllivaii, 91 U. 6. 678 ; Boiling v. common Uw of tbe State, Mpeciall; when 

Lenner, 91 U. S. 5M. It ii not tat- applied to the title of landt." In Buk 

Bcient that the preaidlng judge of tlie of Hamiltoni;.DudIe7'BLeMee,2Fet 49*^, 

State coQTl certiflet that a right claimed 524, it «u urged tbat Ibe eicliuire power 

under tfae national authority n ai brought of State court* to conttme legitlatire act« 

in qneation. Railroad Co. e. Bock, 4 did not extend to the pAramoant law, m 

Wall. ITT ; Parmelee v. Lawrence, 11 m to enable them to give efficacy to an 

Wall. 86. act which wai contrary to the State con- 

' Gordon v. Caldcleugh, S Cianch, 263 ; etitution ; but MarAaa, Ch. J., lald : " We 

McDonogh u. Hillaudon, 3 How. 098; cannotadinitthtBdiatinction. Tliejadicial 

Fallon V. McAfike, IS Pet. 149 ; I.inton v. department of every goTemment li the 

Stanton, 12 How. 423; Burke v. Gaioei, rightful ezpotitorofitalawi.andemphati- 

19 Bow. SBB ; Reddall v. Bryan, 24 How. cally of ita tnpreme Uw." Again, In Elm- 
420 ; Boo«evelt v. Heyer, 1 WaU. 612 ; endorf u. Taylor, 19 Wheat. 162, 169, the 
Ryan v. Thomai, 4 Wall. 603. same eminent judge «aya ; " The judicial 

■ Commonwealth Bank v. Griffith, 14 department of cTery govemraent, where 

Pet 66; Walker c Taylor, 6 How. 64. We inchdepartmenteiiati.U the appropriate 

take no notice here of the itatutea for the organ for conitming the legislative acU 

removal of causei from the State to the of that goTemment. Thui no court in 

federal coarta for the purpo«e« of origi- the univene which proposed to lie gor- 

Dal trial, as they are not important to any erned by principle would, we presume, 

discussion we shall have ocasion to en- nndertake to say that the courts of Great 

ter upon in this work. See Rev. Stat, of Britain or France, or of any other nation, 

U. S. 18TS, title 13, ch. T ; Cooley, Const!- had misunderstood their own statutea, 

tutiooai I^ciples, 122-128. Judge Dil- and therefore erect Itself into a tribunal 

Ion has published a convenient manual on which should correct such misuoderatand- 

this subject. Ing. We receive the construction given 

* In Beauregard v. New Orleans, 18 by the courts ol the nation as the true 
How. 4gT, 602, Mr. Justice CampicU sayi : sense of the law, and feel ourselves no 
"The constitnticD of this court requires more at liberty to depart from that con- 
it to follow the laws of the several States slruction than to depart from the word* 
as roles of decision wherever they apply, of the statute. On this principle, the eon- 
And the habit of the court has been to itracUon given by this court to the Con- 
defer to the decisions of their judicial tti' stitntion and laws of the United States is 
banal* upon questions arising out of the rectired by all as the tme construction ; 



by Google 



CH. n.] THE CONSTITOTION OF THE UNITED STATES. 19 

State 'ooartB in the cases already poiated out, the due [*14] 
observBDoe of this rule vill prevent those collisions of judicial 

and on the nine principle tlw conitmc- Hubor Com'ra, 17 Wall. 648 ; Snperri- 
don giTen b; Uie conrti or the sevenl eon c Uaited Statei, 18 Wall 71 ; Fair- 
State* to the legiihttive acta of those field c. Gallatin, 100 U. 8.47; Springer t>. 
8ute« U recrived aa tme, nnleu the^ Foater, 2 8I017 C. C. S8S ; Neal b. Green, 
coma in txnUUct with the Conatitailon, 1 McLean, 18^ Paine f. Wrigbt, 6 McLean, 
lawt, or Ueatiei of the United StateB." SQSj Bo^le v. Arledge, Hemp. 020 j Grif- 
In Qrwn B. Heal'i Lewee, 6 Pet. 291, 298, fing n. Gibb, McAU. 212; Ba^erqne t>. 
it it nid b^JfcLtaa, J.; "The decision Cohen, McAIL 118; Wicks. The Samud 
of the tiigbeit judicial tribunal of a Sute Strong, Newb. 187 ; N. P. Screw Co. v. 
•hooldlMOonuderedaaflnalby thiiconrt, Bliten, SBUIch. SIO; BrooBOuti. Wallace, 
not becanae the State tribaoal in nch a 4 Blatch. 466; Van Bokelen e. Brooklyn 
case ba« any power to bind thii court. City B. R. Co., 5 BUtch. 879] United 
bat becauae, in the language of the court States v. Mann, 1 Oall. 8; Society, &a. e. 
tn Shelby V. Gnr, 11 Wheat. 861, a flxed Wheeler, 2 Oall. 105; Coatea v. Mnie, 
and received conitrnction by a Slate in Brock. S20; Meade b. Beale, Taney, 839 ; 
ill own conrts mabet a part of the statute Loring c. Marah, 2 Cliff. 811 ; Parker v. 
law." And aee Jackaon r. Chew, IS Fhetieplace. 2 Ctift. TO; King 0. Wilson, 
Wheat 168, 162, per T^bMpam, J.; alio the I BiU. 656. The decision of the State 
foltowing caaea: Sims o. Irrine, B Dall. eoart.thataStateitatntehasbeenenacted 
426 ; McKeen v. Delancy, G Cranch, 22 j in accordance with the SUte oonstltuUon, 
Polk's Leasee r. Wendal, 9 Cranch, 87; it binding on the federal courts. Bail- 
Preatoti a. Browder, 1 Wheat. 116 ; Ma- road Co. v. Georgia, 98 U. S. SG9. In 
taal Aanirance Co. e. Watts, 1 Wheat. Green e. Neal's Lesaee, 6 Pet. 261, an Im- 
270; Shlpp v. Miller, 2 Wheat. BIS; portant question was presented aa to t)ie 
Thatcher ■>. Powell, e Wheat 119; Bella, proper course to be pursued by the 8a- 
Morriaon, 1 Pet S61 ; Waring e. Jackson, preme Conrt of the United States, under 
1 Pet 670 ;De Wolf ■^Babaud,l Pet 476; lomewhat embarraafing circumstances. 
Pullerton ■>. Bank of Doited States, 1 Pet That conrt had been called upon to put a 
MM ; Gardner t>. Collins, 2 Pet. 68 ; Beach constracUon upon a State statute of limi- 
p. Vilea, BPete76; Inglisti. Sailors' Snug tations, and had done so. Afterwards 
Harbor, 8 Pet 99; United States v. Hor- the same question had been before the 
riaon, 4 ftt 124 ; Henderaon v. Griffln, Supreme Court of the State, and in re- 
ft Pet. 161 i Hiude v. Vattier, 6 Pet 86B ; peated cases bad been decided otherwise. 
Boaa V. ''McLong, t Pet 288 ; Uarlatt r. The qnesUon now was whetiier tlie 8n- 
SUfc, 11 Pet 1 ; Bank of United Statei v. preme Court would follow its own ded- 
Daniel, 12 P«t 82; Clarke a. Smith, 18 slon, or rererae that, in order to pnt itself 
Fet.lOe; RoasD. Duval, 13PeL46; Wit in harmony with the Btate decisions. 
coi v. Jaiiaon, 13 Pet. 498; Harpeoding The aulgect is conudered at length bj 
>- Refonned Church, IS Pet 466; Martin McLtan, J., who Justly concludes that 
V. Waddell, IB Pet 867 ; Amis v. Smith, •■ adherence by the federal to the exposi- 
16 Pet 908 ; Portarfleld i>. Clark, 2 How. Hon of the local law, as given by the 
76 ; Lane ■>. Vick, 8 How. 464 ; Foxcroft conrta of the State, will greatly tend to 
e. Hallett, 4 How. 868 ; Barry v. Mercein, preserve harmony in the exercise of the 
6 How. 103; Rowan d. Runnella, 6 How. Judicial power in the State and federal 
134; TaiiReUBtelaerv.Keame7,llHow. tribunals. This rule is not only recom- 
297 ; Pease b. Peck, 18 How. 606 ; Ksher mended by strong considerations of pro- 
r. Haldemao, 20 How. 186; Parker 0. priety, growing out of our system of 
Kane, 22 How. t ; Suydam v. Williamson, Jurisprudence, but it ii sustained by prin- 
21 How. ^7 ; Snmner v. Hicks, 2 Black, ciple and authority." The court, accord- 
M2; Chicago r. Bobbins, 3 Black, 418; Ingjy, revened its rulings to make tbem 
HOea V. Caldwell, % Wall. 86 ; Williams conform to those of the SUte conrt See 
a. Klrklaad, 18 WaU. 806; Walker v. also Soydam v. Williamson, 34 Hew. 437; 



by Google 



20 fX>N HTIVUTKHTAL UMTTATIONS. [OH. n. 

aatbority whicli woald otherwia* be ineritable, and which, 
[* 15j beddes bdog unseemly, * would be daogeroiu to the peace, 

harmony, and stability of the Union. 
Besides conferring specified powers upon ihe national gorern- 
inent, the Constitution contains also certain restrictions upon the 
action of the States, a portion of them designed to prevent eo- 
croachments upon the national au^ority, and another portion to 
protect individual rights gainst possible abuse of State power. 
Of the first class are the following : No State shall enter into any 
treaty, alliance, or confederation, grant letters of marque or re- 
prisal, coin money, emit Inlls of credit,^ or make anything but 
gold and silver coin a tender in payment of debts. No State 
shall, without the consent of Congress, lay any imposts or duties 
upon imports or exports, except what may be absolutely necea- 

LefflDsirel]e.W>rreQ,2Black,599;Bk)M- S22 ; Bragg ti. Mefer. HcM. 408. And 

bnrg, &c. R. S. Co. e. Tiogs R. It. Co., 6 of cotme caaei preseDtiiig qneiliani of 

Blatch. 867; Bmith v. Shiiver, 3 WkU. conflict irltli the CoiwIituUon of the Unl- 

Jr. 21&. It u, of conne, immaterial that ted States cannot be within it State 

Hie court ma; ttjll be of apinian that the Bank o. Kooop, IB How. 3S9 ; Jeffanon 

SlAta court haa erred, or that the dad- Branch Bank v. Skelle/, 1 Black, 486. 

■ionieliewhere are different. Belln. Uor- And where a contract had been made 

riioa, 1 Pet. 3fil. But where the Sopreme nnder a letlled conttniction of the State 

Court had held that certain contracts fbr constitution bjr iti highest conrt, the So- 

the price of slATes were not caade Toid b7 preine Conrt roitained it, notwithtcand- 

the Stale constitution, and aflerwnrd the Ing the Slate court had since overruled 

State conrt held otherwise, the Supreme its former decision. Oelpcke v, Dnbuque, 

Court, regarding this decision wrong, de- I Wall. 175. Bee Olcott v. Sopervliois, 

^ned to reverse their own mting. Bowin 10 Wall. 078; Donglaas v. Rke Connt^, 

e. Runnels, B How. 134. Compare this 101 U. 8. 077. 

with Nesmith v. Sheldon, 7 How. 812, In i To oonstltate a bUl of credit within 
which the court followed, without ejiam- the meaning of the Constitution, it must 
illation or question, the State decision be issued b; a State, iovolre the faith 
that a State general banking law was In of the State, and be designed to circulate 
fiolation of the constitution of the Slate, as money on the credit of the State, in tiie 
The Cnited States Circuit Court had held ordinarj uses of bnstness. Briscoe d. 
otherwise previous to the State decision. Bank of Kentucky, 11 Pet. 267 ; Wood- 
Falconer D. Campbell, 2 McLean, 186. mfl v. TrapnaU, 10 How. 190. The fkcta 
This doctrine does not apply to qnee- that a State owns tlie entire capital stock 
tions not at all dependent upon local of a bank, elects the directors, makes its 
•tatntes or usages ; u, for instance, to bills teoelTable for the public dues, and 
contracts and other instruments of a com- pledges its &ith for their redemptiM], do 
mercial and general nature, like UUa of tiot make the bills of such bank " bills at 
exchange: Swift v. Tjitm, 10 Pet. 1; credit" in the conslitutlooat sense. Dar- 
Oate* e. National Bank, 100 U. S. 380 ; ringlon v. State Bank of Abbama, 18 
Railroad Co. v. National Bank, 102 U. S. How.12. See, further, Craige. Uissonri, 
14 ; and iniurance contracts, Robinson n. 4 Pet. 410 ; Byrne v. Missouri, 8 Pet 40 ; 
Commonwealth Ins. Co., 8 Sam. 220. Cturane. Arkansas, 16How,304; Morean 
And see Beimsdyke b. Kane, 1 Oall. 876 ; t>. Detchamendy, 41 Ho. 481 ; Bailey d. 
Austen •>. Miller, 6 McLean, IfiS; OIov- Hiliier,36 Oa.'SS0; City National Bank 
oealer Ins. Co. ■>. Tounger, 2 Cnrt. C. C b. Mabiaa, 21 La. Add. 761. 



by Google 



CH. n.] THK CONSTITUTION OT THE UNITED STATES. 21 

aarj for ex«flotdi^ its inspectioD laws ; and the net produce of 
all duties and imposts laid by any State oa imports or exports 
shall be for the use of the treasuiy of the tJuited States, and all 
BoeH laws Bhall be sabjeot to the revision and control of Congress. 
Mo State shall, without the consent of Congress, lay any duty of 
tonnage, keep troops or ships of war in time of peace, enter into 
any agreement or compact with another State or with a foreign 
power, or engage in war, unless actually invaded, or in such im- 
minent danger as will not admit of delay. Of the second class 
are the following : Mo State shall pass any bill of attainder, 
tx poat facto law, or law impairing the obligation of contraotB,' 
or make or enforce any law which shall abridge the privileges or 
immunities of latizens of the United States ; nor shall saxy State 
deprive any person of life, liberty, or property without due pro- 
cess of law, nor deny to any person within its jurisdiction the 
equal protection of the laws,' nor base discriminations in sufEn^e 
on race, color, or previous condition of servitude.' 

Other provisions have for their object to prevent discriminations 
by the several States ^^inst 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 inunumties of citizens in the several States;* that fugi- 

> Conit.of n. S. art.!,! 10; Story on right to acqnEre «nd poaieH propertj of 

Convt. c. 88, 84. eveiy kind, and to punae and obtain hap- 

* CooM. of D. 8. 14th Atomdiaetit; pineii and wfety, iuliject neiertbeleM to 

Blarjf oa Conit. (4th ed.) c. 47. * tuch re«tra!iiti a* the goTOTnmeDt may 

■ CoDit. of n. 8. lAth Amendment; jaitly prescribe for the general good of 

Story on Oomt. (4th ed.) e. 48. the whole. The right of a dilBea of on* 

« Omit of O. B. art 4. » What are the State to pan through or to realdo In any 

priTilegei and immnnitlet of cltlsent In other State.forporpoaei of trade, agrictj- 

Oe wreral StUeal We ^1 no heiita- tore, profenkmal ponoiti, or otherwise; 

tfam in confining these ezpresiions to those to daim the benefit of the writ at habtat 

priTilegea and immunltlea which are in eor^nt ; to Inttltote and maintain actioas 

tlwir natnr« fimtlamtJilal ,- which belong of eyery kind in the comta of the State ; 

of right to the dtizens of all free gOTern- to take, hold, and dispose of property, 

nentt, and wtiich have at all times been rither real or penoual ; and an exemption 

cnjojed by the dtlxens of the MTeral from higher taxes or impositions than are 

States which compose thU Union, from paid by the citUens ot the other 8t«te, — 

the time ot their becoming free, Indepen- may tie mentioned as lome of the particn- 

dent, and sorereign. What those fnnda- )ar priTilegei and immunities of citizens, 

mental principlet are, it wonld perhaps whtcharedeariyembracedby thegeneral 

be more tedious than difficult to ennme- description of privileges deemed to be 

rate. Tbey may, liowever, be all com- ftindamental; to which may be added 

pRbended under tlie fbllowing general the elecllre franchise as regolated and 

beads ; Protection by the goremment, the established by the laws or constitution of 

enjoyment of life and liberty, "ith the the State in which It is to be exercised. 



by Google 



22 cuHSTnnmoHAL ldoiatiohs. [oh. n. 

[*16] tiTSB from justice shall *be delivered up,' and that full 

TbeM, Mid nuu)7 other* which might ba People v. Coleman, i C*L 4C; People r. 

mentioned, ire, atrictlj ipeaking, prirl- Tliurber, 18 UL 544 ; Phonix loiumKa 

legeiuidimmunitie*; and the enuojment Co. v. Commoiiwe»llh, 5Baih,0S; Ducat 

of them hf the citizeni of sach Slate in t. Chicago, 48 IlL 172; Fire Depaitmoit 

every other State wai maniieitlj calcu- r. NoUe, 3 E. D. Bmith, 441 ; Suae v. 

iatsd (to DM tbe eipreeuoot of the pre- Wright, 3 E. D. Smith, U3 ; Same «. 

amble at the correepoDding pcoTiiioD in HelfeniteiD, 16 Wii. 1S6 ; Seara v. Com- 

tbe old Article* of Confederation) 'the miMionera of Warrea Co., 30 lad. 267; 

better to eecnre and perpetoale mutual JefferaonTille, Ac. B. K. Co. v. Hendricki, 

friendahip and inlerooime among the 41 Ind, 48 ; Cincinnati Health AMociation 

people of tbe ditferent SUte* of the d. Raacothal, 66 IlL 86 ; State v. f oadick, 

Dnion.' " H^uMo^m, J., in Corfield v. 21 L^. Ann. 4B4 ; Slangier Hoiue Caaei, 

Coryell, 4 Waah. C. C. S80. The Su- la Wall 86 ; BtadwcU e. Stale, le Wall, 

preme Court will not deBcrilM aod doOne ISO ; Barteme jer v. Iowa, 18 Wall. 120 ; 

thoie prlrilegei and immonitiei in a gen- United Statu c. Cruikihank, 92 TJ. S. &42. 

oral cUulBcation ; preferring to decide The conititutional proviilon. doei not 

each caae ai it may oome up. Con- apply to corporation!. Wamn Uanuf. 

ner v. Slliolt, 18 How. 6Q1 ; Ward v. Co. v. Mta* Ins. Co., 2 Paine, fiOl ; Paul 

Uatyland, 12 Wall. 418; McCrvady r. e. Virginia, 8 Wail. 168. A ditcrimina- 

Virginia, 94 U. S. 891. The queition tiontwtweenlocalfreightonrailroadiaiid 

Id tbi* laat caae wa* whether the State that which is extra-territorial ii not per- 

of Virginia could prohibit dtiieni of tonal, and therefore not forbidden by thi« 

other Stale* from planting oyster* in dante of the Constitution. Shipper v. 

Ware RiTer, a itreamin that Stale wher« PenniylvanU R. B. Co., 47 Penn. St. S3S. 

the tide ehbs and flows, and the right be See, for taxes which are forbidden by it, 

granted by the State to ili own citizens post, * 486, note. 

exduilTely. Waite, Ch. J., In answering i Extradition ai betmem tie Siala. Tbe 

tbe qneition in the afhrmatiTe, said ; " The return by one State of fugitives from jna- 

rigbt thus granted li not a privilege or Uce which have fled to it ttma another 

immunily of general, but of special citi- State is only made a matter of rightful 

■eotbip. It does Dot belong of right to dem&nd by tiie proTisions of the federal 

the dtiteoi of all free goTemmcnts, but Cooitltution. In the absence of sncb 

only to tbe dtiiens of Virginia, on ac- provisions, it might be provided tor hy 

count of tbe peculiar circumstances In State law ; but tlie Corutitnlion makes 

which they are placed ; they, and they tbat obligatory which otlierwiie would 

■loDe, owned the property to be sold or rest in the imperfect and d 



used ; and they alone bad the power to qairementa of iuter-state comity. The 

ditpoae of it as they saw fit. They owned subject has received much attention titan 

it, not by vuiaa of citiienship merely, tbe courts when having occasion to eoa- 

but of citiienihip and domicile united ; sider the nature and extent of the consti- 

that is to say, by virtue of a citizenship, tucional obligation. It has also been the 

confined to that particular locality." See subject of many executive papers; — ■" 



also Paul B. Haielton, 87 N, J. lOfl. For several controversions between the execu- 
other difcuasiona upon thia subject, see tivos of New Torit and those of more 
Murray p. McCarty, 2 Munf. 893; Lem- southern Sutes are referred to in the re- 
mono. People, 28 Barb. 270, and 20 N.T. cent Life of William H. Seward, by hU 
662 ; Campbell v. Morris, 8 Har. 4 M'H. son. The following are among the judU 
&64 : Amy o. Smith, 1 Lit. 326 ; Crandail cial decUions : The oflenoe for which ex- 
0. State, 10 Conn. 840 ; Butler v. Fama- trailitiou may be ordered need not have 
worth, 4 Wash. C.C. 101; Commonwealth been an offence either at the common law 
t>. Towles, 6 Leigh, 743 ; Haney v. Mai^ or at the lime the Constitution was 
•hall, 9 Hd. 194 ; Slaughter v. Common- adopted : it ia aufficient that it waa so at 
wealth, 18 Gratt. 767 ; Stale v. Medbury, the time the act waa conimitled, and when 
SB.! 188; People n-Imlay, SO Bait. 68; demand is made. Matter of Clark, 9 



by Google 



CH. II.] THB COMBTrrnriOH OF THE UNITED STATES. 28 

&ith and credit shall be given in * each State to the [' 17] 

public acts, lecords, and judicial proceedings of eveiy 

other State.* Many casea have been decided imdei these several 

Veod 313; Peoples. Donohne, 84 N.T. 434; State i>. Enflord, 28 Iowa, 391; 
438 ; JohnatoD v. Bilej, 13 Qa. BT ; tiM- People v. Bnij, 66 N. Y. 182 ; Klnga- 
ter of FeUer, 28 S. J. 811; Matter of bury '■ CaM, 106 Mau. 223; ExparUiio- 
Toorbeei, 32 N. J. 141 ; Mi»toi) n. Skinner, Eean, 8 Haghes, 23 ; Joaet v. Leonard, 50 
4B Ind. 123; Matter uf Hugh«i, FhiU. Iowa, 106; so. S2 Am. Rep. 116. Alio 
(N. C.) 67; Kentnckj b. Deiuiton, 24 theihowiDgrequired, see Slate u. Swope, 
How. 66. The oBenoe miut have been 72 Mo. 390; Ex pate Sheldon, 84 Ubio 
actuaU^ commuted witblu the State St. 319; Ham v. State, 4 Tex. App. 646. 
mekiog the demand. and the accnsed mnit The federal court* have no power to com- 
hare Bed thereCroin. Ex parte Smith, pel Uie State anthoritiei to falfll their 
3 McLean, 121 ; Jonei r. Leonard, GO duUei under thia claase of the CunBtitu- 
Iowa, 100; s. c. 32 Am. Bep. 116; Hart tion. Eentnck; t>. Denniion, 24 How. 
man v. AveliDe, 03 Ind. 844; Wilcox o. 66. The executive ma; revoke hii war- 
MolK, 34 Ohio Bt. 620. The accused ma; rant, if aatiifled it ought not to have ia- 
be atrefted to await demand. Slate t. lued. Work d. Corrington, 34 Ohio St 
Bozine, 4 Harr. 572; Ex partt Cubreth, 64; s. a. 32 Am. Bep. 345. 
49 Cal. 486 ; Ex parte Botenblat, 61 CaL Exlradition lo/onign camtriei ii purely 
285. See Tnllia d. Fleming, 99 Ind. 16. a national power, to be exercised tinder 
But lie cannot be nirrendered before for- treaties. Holmes v. JennlBan,14PeL 640; 
ma] demand is made, and parties who Ex parte Hoimes, 12 Vt. OSl ; People «. 
sriie and deUTsr him up without demand Curtis, 60 N. Y. 321. That where a per> 
will be liable for doing so. Bottsn.Wil- son is extradited on one cliaige, he should 
liama, IT B. Honr. 6TT. Still, If be is re- be discharged if not lield upon that, see 
tnrned withont proper papers to the Stale Commonwealth v. Hawea. 13 Bush, 607 ; 
from whence he tied, this will be no snf- in re Cannon, 47 Mich. 481. 
Odent ground for his discharge from cm- ' Coast, of U. S. art. 4. This clause 
todj. Dew's Case, 16 Fenn. St. ST. The of the Constitution has been the sutyect 
demand is to be made b; the executive of a good deal of discussion In the courts, 
of the State, b; which ii meant the goy- It ii well settled that if the record of a 
enior: Commonwealth v. HsU, 9 Gra;, Judgmentshowsthatit wasreodered with- 
962 ; and it Is the dnt; of the eiecutire out serrice of process or appearance of 
of the State to which the offender has thederendant,orif that fact cnn be shown 
Bed to compi; : Johnston v. Bile;, 13 Ga. withont contradicting the recitals of the 
07 ; Ex plate Swearingen, 13 8. C. 74 ; record, it will be treated as void in im; 
P«ople V. Pinkerton, 77 N. T. 245 ; Work other State, notwithstanding this coneti. 
*. Corrington, 84 Ohio St. 04 ; a. o. 82 tutional provision. Kibbe v. Kibbe, Kirb;, 
Am. Rep. 845; bnt If he refuses to do so, 119; Aldrich v. Kinne7,4Crain. 880; Mid- 
tbe court* have no power tocompelhim: dlebrooki n. Ins, Co., 14 Conn. 801; Wood 
Kentuck; r. DennisoD,24How.OO; Hat. o. Watkinson, IT Conn. 600; Bartlett v. 
ter ol Manchester, 6 CaL 287. There Knight, 1 Mass. 401 ; BisseU r. Briggs, 9 
must be a showing of sofBdetit cause for Mass. 462 ; Hail u. Williams, 6 Pick. 282 ; 
tbearrestbefore therequisitioncanlssue; Woodworth u. Tremere, Q Pick. 864; 
but after it is issued and complied with, Gleason e. Dodd, 4 Met. S38; Common- 
it is competent for the coort* of either wealth v. Blood, 9T Mass. 638 ; Edaon v. 
State on habeae carpve to look loto the - Edaon, 108 Mass. 690 ; s. a. 11 Am. Bep. 
I«pen,andff the;sbownosuffldeiitlegal 8S3; Kilbum v. Woodworth, 6 Johns, 
cause, to order the prisoner's discharge. 87 ; Bobinson r. Ward's Executors, 6 
Ex parte Smith, 8 McLean, 121 ; Matter Johns. 86 ; Fenton i>. Oarlick, 8 Johns. 
of Clark, 9 Wend. 212; Matter of Man- 194; Pavrling o. Bird's Executors, 13 
Chester, 6 Cal. 387 ; Matter of He;wsrd, Johns. 192 ; Holbook u. Murra;, 6 Wend. 
1 Saodf. 701 ; Ex parU White, 49 CaL 161 ; Bradthaw ». Beatb, 18 Wend. 407 ; 



by Google 



24 CONSTITUTIOMAL LDaTATIONS. [CH. IL 

pi^oviaions, the piost important of which are collected in the mar- 
ginal notes. 

The last provision that we shall here notice are that the 
United States shall guarantee to every State a republican form 

of goTernment,' and that no State shall grant anj title of 

Nojeic. Butl«r,OB»rb. 618; Hoffmutv. Qleuan e. Dodd, 4 HeL 383; Kane v. 

HofFniRD, 46 N. Y. 80; ■. 0. 7 Am. Rep. Cook, 8 Cal. 449; Norvood v. Cobb, 24 

WB; Thurber r. BlackbonriM, 1 N. H. Teiu, 5£t; RnMell v. Fetry, 14 N. H. 

242; WbilUer r. Wendell, 7 N. B. 2GT ; 162; Saft t>. Hestui, 9 Wia. 328; Cwle. 

Rangelj d. W«biter, 11 N. H. 396 ; Adam* ton n. Blckfocd, 18 Gny, 601 ; McKtj v. 

V. Adams, 61 N. H. 388 ; s. c. 12 Am. Bep. OordoD, 84 N. J. 266 ; Tbnaptoti v. Whit- 

184 ; Wibon v. Jackion, 10 Mo. 884. Sm man, 18 Wall. 467. In Pei^e ti. Dawell, 

HcLaorfaie v. Monroe, 80 Mo. 462 ; Bim- 2G MIcfa. 247,on an Indictment for bigunj, 

eler d. Dawaon, 6 Hi. 636; Warren v. inwhich the defendant relied on a foreign 

McCartbr, 25 HL 95; Cmtiai u. Gibbi, 1 divorce from bU flnt wife, it urat held 

Fenn. 406 ; Rogen v. Coleman, Haid. 416 ; competent to ihow, In oppoiition to tbe 

AnuBtrong t>. Uanhaw, 1 Der. 187 ; Nop- redtala of the record, that the parties 

wood V. Cobb, 24 Texaa, 651 ; Rape e. never reaided in tbe foreign State, and 

HcfltoD, 9 WU. 328 ; McCaulej b. Har- thai tbe proceediDg* were a fraud. Te 

grovea, 48 Ga. 60 ; a. c. 16 Am. Rep. 660 ; the tame eflect an Hood n. Scal«, 56 lud. 

People V. Dawell, 26 Micb. 247 ; a. o. 12 263 ; i. o. 26 Am. Rep. 21 ; Pennywic v. 

Am. Rep. 260; Hood u. 8tate.&6Ind. 263; Foote, 27 Ohio St. 600; People v. Baker, 

iJDColno. Tower, 8 McLean, 4T8; Weiter- 76M. T.7B; a. o. S2 Am. Bep. 274. Mr. 

veil D. I.ewii, 2 McLeaa, 611; Railroad Freeman <Uacaa»e* thia general anbject in 

Co. D. Trimble, 10 Wall. S67 ; Board of hia treatiae mi Judgmenu, c. 26. The 

Public Worics D. Columbia College, 17 aame defencea maj' be made to a Judf. 

WalL621. Bnt wlielber it would be com- ment, when auedin another State, wliich 

petent 1o ahow, in oppoaition to the re- could bave been made to it in the State 

citala of the record, that a Jodgment of where rendered : Hampton v. McCoonel, 

another State waa rendered without juria- 8 Wheat. 234 ; Mills d. Dnryca, 7 Cranch, 

diwion hariag been obtained of the pei^ 481 ; Steele v. Smith, 7 W. & 8. 447 ; 

aon of the defendant, the authorttlei are Bwik of the State e. Dalton, 9 How. 522 ; 

not agreed. TOany caaea hold not. Field Scott e. Coleman, 6 Utt. 349 ; a. c. 15 

V. Gibba, 1 Pet. C. C. 156; Oreen d. 8ar- Am. Dee. 71; bat no othera : Green ■>. 

mlento, I Pet. C. C. 74 ; Lincobi b. Tower, Van Baakirk, 7 Wall. 189 ; Chrietmai e. 

2 McLean, 473; Weaterrelt e. Lewia, 2 Rtutell, 6Waa 290; Cbeerert>. Wilson, 

McLean, 511 ; Roberts t>. Caldwell, 6 9 WaU. 108; Wemwag u. Pawling, 5 GUI 

Dana,512; Hensley r. Force,7 Eng.766i ftj.600; a.o. 26 Am. Dec.817; Fletcbw 

Pearce o. Olney, 20 Conn. 544 ; Hovia v. e. Ferrel, 9 Daiui, 878 ; a. c. H6 Am. Dee. 

Wright, 2 Vt. 203; Newcomb n. Peck, 17 148; People o. Dawell, 25 Mich. 247; 

Vt.302;Willcoxi'.Kas>ick, 2Mlch. 165; s. o. 12 Am. Rep. 260; Dodge b. Coffin. 

Bimeler v. Dawson, G 111. 686; Welch v, 16Eaus. 277. 

Sykea, 8 III. 197 ; Wetherell v. 6tillman, Thia prorialon of tbe ConatitutioQ (rf 

66 Fenn. St. 105. Other cates admit aucfa the United Stalea doe* not require that dia- 

evldence. Stnrbnck c. Murray, 6 Wend, atalities impoaed upon a person convicted 

148 ; a. a. 21 Am. Dec 172 ; Hotbrook v. of crime In one State abonld follow lUm 
Mum7, 5 Wend. ISl ; Slinrnwa; u. Still- ' and be enforced in other Sute*. Sima r. 

man, 6 Wend. 447 ; Borden t>. Filch, 15 Sima, 76 N. T. 466, approving Common- 

Johna. 121 ; Bartlet b. Enigbt, 1 Maaa. wealth n. Gteen, 17 Mu«. 515. and diaap- 

401 ; a. c. 2 Am. Dec. 86 ; Hall v. Wil- proving Chase b. Blodgett, 10 N. H. 22, 

liama, 6 Pick. 232 ; Aldrich e. Einnej, 4 and State «. Chandler, 3 Hawka, 898. 

Conn. 880; Bradshaw i>. Heath, 13 Weod. i Cooat. o( D. S. art 4, { 4. 
407; Hoflman tp. HoIEman, 46N. T.30; 



by Google 



OH. n.] TBB C0N8TITDTI0H OF THE OHITED STAIBS. 25 

nobility.^ The purpose of these ia to protect a Umon found- 
ed on repablican principles, and composed entirely of 
'rapublicaD members against aristocratic and monarchi- [* 18] 
cal iniioTations.^ 

So &r as a particular consideration of the foregoing provisions 
&Ils within the plan of our present vrork, it will be more con- 
venient to treat of tbem in another place, especially as all of them 
which have for their object the protecUon of person or property 
are osnally repeated in the bills of rights contained in the State 
conatitutionB, and will requii'e some notice at our hands as a part 
of State conatitotional law. 

Where powers are conferred upon the general government, the 
exercise of the same powers by the States is impliedly prohibitedi 
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 ; nnce the power to tax, if possessed by the States 
in r^ard to these objects, might be ao exercised as altogether to 
destroy such agencies, and impair or even destroy the national 
credit.' And where by the national Constitution jurisdiction ia 
given to the national courts with a view to the more efficient 
and harmonious working of the system oi^nized nnder it, it is 
competent for Congress in its wisdom to make that jurisdiction 
exclusive of the State courts.* On some other subjects State laws 
may be valid until the power of Congress is exercised, when they 
become superseded, either wholly, or so &r as they are found 
inconsistent. The States may legislate on the subject of btmk- 
niptcy if there be no national bankrupt law." State laws for 
organizing and disciplining the militia are valid, except as they 
may conflict with national legislation ; ^ and the States may con- 

1 Conit. of TJ. a art. 1, f 10. State Uwi cannot regulate the ule of 

* FedeTBlkt, NtM. 43 and 44. It doet not pstenti, the whole lubject belonginff ei- 
Ul within ooT prorinee ta dlacim theie clnsiTel; to Congrau. Ex parte Bobin- 
proTiaioni. The; hare been innch di»- aon, a BUa. 800. 

eoMcd Id CoDgKM witiiln a few yean, ' Martin c. Hnnter'i Leiiee, 1 Wkeat 

bat in a par^, rather than a Jadkdal, 904 ; The Hoaet Tajlor t>. IlammoUB, 4 

apMt See Blorj on Conat (4th ed.) Wall. 411; The Ad BIh o. Trevor, 4 

e.41; iMther p. Borden, 7 How. 1 ; Tsxat Wail. 665. And ««e note to thete catea 

», White, 7 Wall. 700 ; Coolej, Conatitii- In the Weitem Juriat, Vol. I. p. 241. 

tiaoal Pritidplee, ch. li. ' Stargei v. Crvwoin^leld. 4 Wheat. 

• HcCnllocb V. Hatrland, 4 Wheat. 122; McMillan ». HcNeiU. 4 Wheat 'JOB; 
n«, 437 ; Weaton c. Chariealoti, 3 Pet And wepHt. pp. • 39S-2M. 

44a Sea oaaea coUMted, pM, p. •ISH. « Houaton it. Hooce, ft Wbut 1, 61. 



by Google 



26 OONSTTTCTIOKAL LlHItATIOire. [OH. II. 

BtitutioDally provide for puuiBhing the oouDterfeiting of coin * and 
the passing of counterfeit monej,^ siaoe these acts are offences 
against the State, notwithstanding they may be offences against 

the nation also. 
[* 19} * The tenth amendment to the Constitution provides 

that the powera not delegated to the United States by 
the Constitution, nor prohibited by it to the States, are reserved 
to the States respectively, or to the people. And it is to be 
observed of this instrument, that being framed for the establish- 
ment of a national government, it is a settled rule of construction 
that the limitations it imposes upon the powers of government are 
in all oases to be understood as limitations upon the government 
of the Union only, except where the States are expressly men- 
tioned.^ As illustrations, the sixth and seventh amendments to 
the Constitution ma; be mentioned. These constitute a guaranty 
of the right of trial by jury ; but, as they do not mention the 
States, they are not to be nnderstood as restricting their powers ; 
and the States may, if they choose, provide for the tiial of all 
offences against the States, as well as for the trial of civil cases in 
the State courts, without the intervention of a jury, or by some 
different jury from that known to the common law.* 

With other rules for the construction of the national Constitu- 
tion we shall have little occasion to deal. They have been the 
subject of elaborate treatises, judicial opinions, and legislative 
debates, which are familiar alike to the legal profession and to the 

1 Hulan p. People, 1 Dong. (Mich.) Dec. 122 ; North. Mo. R. U. Co. v. M»- 

207. gam, 49 Mo. 490 ; Lake Eiie, &c R. R. 

* Fox V. Ohio, e How. 410; United Co.o. Heath.Q Ind.&GS; Pretcott n. State, 

States V. Marigold. 9 How. 660. Aod «ee IB Ohio Sc. 184 ; Stale v. Shtuupert, 1 So. 

Hendrlck'a Caie, 6 Leigh, 707; Jetl v. Car. 85; Commonwealth o. Hitchingi, 6 

Conimonwealtii. 18 Grat. 988 ; State v. Gray, 482 ; Bifte'ow "■ Bigelow, 120 Htat. 

Rankin, 4 Cold. 146; Hoore d. People, 14 820; Boyd o. Ellis, 11 Iowa, B7 ; CampbcU 

How. la "■ SUte, 11 Ga. 863; State e. Carro, 26 

■ Barron v. Baltimore, 7 Pet. 24S ; Li*- La. Anti. 877 ; Purvear v. Com moD wealth, 

ingston'* Leasee v. Moore, 7 Pet. 469; Fox 6 Wall.476; Twitcheliv. CommoowMlUi, 

V. Ohio, 6 How. 410 ; Smith v. Marylaod, 7 Wall S21. 

18 How. 71 ; Buonapu^ p. Camdeo & ' Twitchell o. Commonwealth, 7 WalL 

Amboy R. R. Co., Baldw. 220 ; James r. 321 ; Jnaticei t>. Murray, 9 WaU. 274 ; 

Commonwealth, 12 S. & H. 220 ; Barker Edwards r. Elliott, 21 Wall. 632 ; Walker 

B. People, 8 Cow. 688 ; Colt o. Eves, 12 o. SanTinet, B2 D. S. 90 ; Mnnn o. Illinoia, 

Conn. 243; Jane c. Commonwealth, 3 94 U. S. 118. The seventh amendment 

Met. (Ky.) 18; Lincoln o. Smith, 27 Tt has no application to demands against 

328; Matter of Smith, 10 Wend. 44B; the itovernment, or to counterclaims. 

State «. Bamett, 3 Kansas, 260; Reed «. McElrath e. Dnlted Statea, 102 U. S. 

Bice, 2 J. 3. Marsh, ifi; b. c. 19 Am. 426. 



by Google 



CH. U.3 TUB CONSTITUTION OF THB UNITBD BTATBS. 27 

public at large. So f ar aa that inBtrumeot apportions powers to 
the national judiciarj, it must be understood, for the most part, 
aa simplj authorizing Congress to pass the necessary legislation 
for the exercise of those powei-s by the federal courts, and not as 
directly, of its own force. Testing them with that authority. The 
Constitution does not, of its own force, give to national courts 
jarisdictioD of the several cases which it enumerates, but an act 
of Congress is essential, first, to create courts, and afterwards to 
apportion the jurisdiction among them. The exceptions are of 
those few cases of which the Constitution confers jurisdiction 
upon the Supreme Court by name. And although the courts of 
the United States administer the common law in many cases,^ 
they can recognize as offences f^inst the nation only those acts 
which are made criminal, and their punishment provided for, by 
acts of Congress.' It is otherwise in the States ; for the State 
courts take notice of, and punish as crimes, those acts which 
were crimes at the common law, except in a few States where it 
is otherwise expressly provided by statute or Constitution. 



> Towtuead v. Todd, 91 U. S. 4^; which the legUlatire power cutoot de- 
Eliiiwood B. iSxTcj, 92 U. 8. 2SB ; Eail- prive it All other coiirM created by the 
tMd Co. 0. GeorgWi BS U. S. S69. general icoyeniment pOMett no ]uii«dio- 
1 DetmuTer to an indictroeot for a libel lion bnt what ii given them hy the power 
upon the President and ConEreu. Bj that created (hem, and can be Teited with 
the court: "The only queition which none but what the power ceded to the 
thia case prewnta \», whether the circuit general goTemineDt will authorize it to 
count can exercise a common-iaw jaria- confer. It ii not neceaiary to inquire 
diction in criminal caaea. . . . The gen- whether the general government, in any 
eral acquieicence of legal men ihowi tlie and what extent, poBseuei the power of 
'alence of opinion in favor of theneg- conferring on itt courts a jurisdiclion in 
e of the proposition. The cooree of caaes tintihiT to the present ; it is enough 
oniog which lead* to thia conclusion that such jurisdiction has not been con- 
is aimple, obvious, and admits of but little ferred by any legislative avt, if it does 
UlnatTation. The powers of the general not re«ult to those courts as a conse- 
goreniineiit are made up of concessions quence of their creation." United Stales 
from the several Sutet : whatever ig not v. Hudson, 7 Cranch, 32. See United 
expreasly pven to the former, the latter States d. Cootidge, 1 Wheat. 416. " It it 
espreasly Teserve. The Judicial power clear there can be no common law of the 
of the United Stales it a consdtntional United States. The federal government 
part of these concessions : that power is is composed of tweaty-four tovereign and 
to be exercised by conrta organiied for independent States, each of wlilch may 
the porpote. and brought into existence have its local usages, customs, and com- 
by an effort of the legislative power of mon law. There it no principle which 
the Union. Of all the courts which the pervades (he Union, and has the authority 
Unitbd Statet may, under their general of law, that is not embodied in the Con- 
powert, conttitute, ooe only, the Supreme ttitntion or laws of (he Union. The corn- 
Court, poteas c a jurisdiction derived im- mon law could be made a part of our fed- 
■tediatdy from the CrattitutioD, and of eral syttem only by legitlative adoption." 



by Google 



28 COMSTITCTIONAL UlUTATIONB. [CH. H. 

P«ri/i:£«(M,J^WbMlonB.PeWiT,8I'et. v. Wllion, 8 Blateh. 130; United State* 

501. &«ealBaKeDdiIlD.Uiul«d StUei,l2 t>. Bune/, 6 Bktch. 2IM. Ai to the 

Pet fi24 ; Lorman v. Clarke, 2 McLean, adoption of the common law by the 

608; United Sutei v. Ltnctata, 2 He- Statei.iee VaDNeMii.PBcaid,2FeL 1ST, 

Lean, 431 ; United SUtes d. Nev Bedford 144, per Stwy, J. ; and poU, p. • 23, and 

Bridge, 1 Wood. & H. 408 i United State* caiei cited in notei. 



by Google 



CO. m.'] FOBHATIOK AND AUKNDMEKT OF COKSTITUTIOIfS. 29 



• CHAPTER in. t* 21] 

IHK FOEMATION AND AMENDMBajT OF STATB CONBTITDTIOllS. 

The Constitution of the United States asBames the existence 
of thirteen distinct State goTernmente, over whose people its 
anUiority was to be extended if ratified by conventions chosen 
for the purpose. Each of these States was then exercising the 
powers of goremment under some form of written constitution, 
and that instrument would remain unaffected by the adoption of 
the national Constitution, except in those particulars in which 
the two would oome in conflict ; and as to those, the latter would 
modify and control the former.^ But besides this fundamental 
law, every State had also a body of laws, prescribing the r^htR, 
duties, and obligations of persons within its jurisdiction, and 
establishing those minute rules for the various relations of life 
which cannot be properly incorporated in a ooustitutaon, but 
must be left to the regulation of the ordinary law-making 
power. 

By far &e lai^er and more valuable portion of that body of 
lawa consisted of the common late of Ei^lavd, which had been 
transplanted in the American wilderness, and which the colonists, 
now become an independent nation, bad found a shelter of pro- 
tecUon during all the long contest with the mother country, 
brought at last to so fortunate a conclusion. 

The oommon law of England consisted of those maxims of 
freedom, order, enterprise, and thrift which had prevailed in the 
eondact of public albirs, the mani^ement of private business, the 
regolation of the domestic institutions, and the acquisition, con- 
trol, and transfer of property from time immemorial. It was the 
ont^owth of the habits of Uiought and action of the people, and 

> Urhigrton t>. Tan Ingen, 9 Johm. Dargui, 4S Ate. 810 ; KmI v. Delamn, 
iOT ; Bute b. Cape Olrmrdeta, Ac. B. R. 103 U. 8. STO. 
Co., 48 Ho. 408; Hqvr, ««. of Mobile e. 



by Google 



80 OONSTirnTIONAL LUUTATIOKfl. [CH. m. 

was modified gradually and iDsensibly from time to time tu those 
habits became modified, and as civilization adranced, and Dew in- 
ventions introduced new wante and oonveniencesi and new modes 
of business. Springing from the veiy nature of the people th^- 
selves, and develpped in their own experience, it was obviously 
the body of laws best adapted to their needs, and as they took 
with them their nature, so also they would take with them these 
laws whenever they should transfer their domicile fi-om one couo- 

tty to another. 
[• 22] • To eulogize the common law is no part of our pres- 
ent purpose. Many of its features were exceedingly harsh 
and repulsive, and gave unmistakable proofs that they had theic 
origin in times of profound ignorancei superstition, and barbarism. 
The feudal system, which was essentially a system of violence, 
disorder, and repine,^ 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, especially in the 
rules which govern the acquisition, control, and enjoyment of 
real estate. The criminal code was also marked by cruel and 
absurd features, some of which have clung to it with wonderful 
tenacity, even after the most stupid could perceive their iucon- 
sistency with justice and civilization. But, on the whole, the 
system was the best 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 independent 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 uncon- 
trolled authority were not recognized in its principles. Awe 
surrounded and majesty clothed the king, but the humblest 
subject might shut the door of hia cottage i^inst him, and 
defend from intrusion that privacy which was as sacred as the 
kingly prerogatives.' The system was the opposite of servile; 
its features implied boldness and independent self-reliance on 

1 "A feudal kingdom was k confed- wm either a cipher or a tyrant, and a 

eraty of a nnmeroua body, who lired in great portion of the people w«ra r*dnoed 

a alale of var agatnat each other, and of to peraonal ilaver;." Hackintoab, Hil- 

rapine towarda all mankind ; Id which the torj of £ ' ' 
king, according to bi« ability and Tlgor, 



by Google 



OH. m.] rOBMATION AND AMENDMENT OP CON3TIT1JTIONB. 81 

the part of the people ; and if the criminal code was harsh, it at 
least escaped the inquisitorial features which were apparent in 
criminal procedure of other civilized countries, and which have 
ever been fruitful of injustice, oppression, and tenor. 

For several hundred years, however, changes had from time to 
time been made in the common law by means of statutes. Origi- 
nally the purpose of general statutes was mainly to declare and 
reaffirm such common-law principles as, by reason of usurpations 
and abuses, had come to be of doubtful force, and which, 
therefore, " needed to be authoritatively announced, that [• 23] 
king and subject alike might understand and observe 
them. Such was the purpose of the first great statute, promul- 
gated at a time when the legislative power was exercised by the 
king alone, and which is still kuown as the Magna Charta of King 
John.' Such also was the purpose of the several confirmations of 
that charter, as well as of the Petition of Right,' and the Bill of 
Rights,^ each of which became necessary by reason of usurpations. 
But further statutes also became needful because old customs and 
modes of business were unsuited to new conditions of things when 
property had become more valuable, wealth greater, commerce 
more extended, and when all these changes had brought with 
them new desires and necessities, and also new dangers agunst 
which society as well as the individual subject needed protection. 
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 bo much to change the law,^ as to 
secure existing principles of the common law against being habit- 
oally set aside and violated by those in power. 

From the first the colonists in America claimed the benefit and 
protection of the common law. In some particulars, however, the 

I It b Jnitly obierrea by Sidney that ' 1 William & Mary, ku. 2, c. 2. 

" HagtiB CharU wu not made to rettn^n < S2 Henry VIII. c. 7, and SI £ 86 

the abMlDte anthority, for no inch thing Heniy VIII. c. S. 

wa« in being or pretended (the folly of ■ 29 Charleg II. c. S. 

■Dch TJiioni aeeraing to haTe been re- 'SI Charlei II. g. 2. 

Mrred to complete the miifortnnei and ^ "I dare not advite to cast the lam 

ignominy of our age), butlt «■» to anert into a new monid. The irork which I 

the itatire and original liberties of our propound tendeth to tbe pruning and 

Baiion by the confeuloa of t)ie king then grafting of the law, and not Che plowing 

bwng - fhat neither he nor hii ■ucceuon up and planting it again, for luch a re- 

dMMld any way encroach upon them," move I should hoM for a periloui innova- 

Sidney on OoTernment, c. S, lec 27. tlon." Bacon's Worka, Vol. II. p. 231, 

I I Chariei L c I. FbU. ed. 1863. 



by Google 



82 CONSTITUnOHAI. LOirTATIONS. [CH. HI. 

oommOQ law as then existing in EDgland vas not suited to their 

condition and ciroumfitances in the new coantrj, and those partic- 
ulars they omitted as it was put in practice bj them.^ 

[* 24] Tfaey also claimed the benefit of * such statutes as from 

time to time had been enacted in modification of this 

body of rules.' And when the difficulties with the home govem- 

> " Tbe common l*w of England ii not Brdt, 2 Ohio St. 287 ; Lyle v. Richnrdi, 9 

to be Uken, in all rMpecti, to be tbat of B. & R. 822 ; State v. Campbell, T. U. P. 

Aroeriua. Our anoeiton brought with Cbarlc. 166 ; Craft u. Bute Bank, 7 Ind. 

them it* general principles, and claimed 219; Dawion n. CofFmHn, 28 Ind. 220; 

It ai their birthright ; but tbey brought Bogardai d. Trimly Church, 4 Sandf Ch. 

with tliem and adopted odIj that portion 633 ; Morgan v. King, SO Barb. 9 ; Lan- 

wMcb wu applicable to their condition." ilng v. Stone, 37 Barb. 15 i Simpson c. 

Story, J., in Van Neu t>. Facard, 2 Pet State.G Yerg. 366; Crouch n. Hall, 16 III. 

187. "TheMtdera ot coloniet in Amer- 268; Brown d. Pratt, SJonea (N. C.) Eq. 

ica did not carry with them the lawi of 202; Stouts. Keja», 2 Dong. (Mich ) 184; 

the land aa being bound hy them wher- Lorman v, Benaon, B Mich. IS; Piergon 

crer tbtj should aetlle. Thej left the r. State, 12 Cal. 146; Nonii v. Harrii, 16 

realm to avoid the inconreniencei and Cal. 220; Powell n. Simi, 6 W. Va. 1; 

liardshipa they were under, where aame Colley b, Merrill, 6 Me. 5G; State c. Ca- 

of these laws were in force; particularly wood, 2 Stew. 860; Cnrt«r n. Balfour, 19 

eccleaiaatical lawi, tliow for payment of Ala. 814; Bartow v. Lambert, 28 Ala. 

tithei, and othen. Hod it been under- 704; Goodwin o. Thomp«>D, 2 GreeiM 

itood that they were to carry the»e law* (Iowa), 329; Wagner v. Biuell, 8 Iowa, 

with them, they liod better hare stayed SOS; Noonan v. State, 9 MiM. 662; Pow- 

at home among their triendi, unexposed ell v. Brandon, 24 Miu. 343 ; Coburn v. 

to the risks and toila of anew Beltlemenl. Harvey, 18 Wis. 147; Beaume v. Cham- 

They carried with them a right to such bers, 22 Mo. 36 ; Hamilton d. Kneeland, 1 

parU ot laws of the land as they should Nev. 40; People v. Green, I Utah, 11 ; 

judge advantageous or useful to them ; a Thomas v. Railroad Co., 1 Utah, 233. 

right to be free f^m those they tliought The courU of one State will presume the 

hurtful, and a right to make such others common law ot a sister State to be the 

as they should think necessary, not in- same as their own, in the abaenoe of evi- 

fringing the general righta of English- dente to the contrary. Dunn n. Adams, 

men ; and such new laws they were to 1 Ala. 627, s c, 86 Am. Dec. 42 ; Abell o. 

form as agreeable as might be to the laws Douglass, 4 Uenio, 806 ; Kermott n. Ayer, 

ofEnBiand." Franklin, Works by Sparks, 11 Mich. 181; Schurmano.Marley,29Ind. 

Vol. IV. p. 271. See also Chisholm p. 45S; Buckles u. Ellers, 72 Ind. 220; Tmk- 

Oeorgia,2Dall. 419; Patterson r. Winn, ler u. Cojt, 68 HI. U9. 

6 Pel. 283 ; Whealon v. Peters. 8 Pet, 691 ; ' The acts of Parliament passed after 

Pollard u. Hagan, 3 How. 212 ; Common- the settlement of a colony were not in 

wealth II. Leach, 1 Mass. 69; Common- force therein, uulesi made so by express 

wealthu. Knowlton, 2 Mass. 630; Com- words, or by adoption. Commonwealth 

monwealth v. Hunt, 4 Met 111 ; Pearoa v. Lodge. 2 Grat. 679 ; Pemble v. Clifford, 

V. Atwood, 13 Mass. 324 ; Sackett e. 2 McCord, 31. See Swift d. Tousey, 6 

Sackett, 8 Pick. 809; Marks u. Morris, Ind. 196; Baker o. Mattocks, Quincy, 72; 

4 Hen. 4 M. 463; Mayo b. Wilson. 1 N.H. Fechheimer c. Washington, 77 Ind. 366; 

63; Houghton D. Page, 2 N. H. 42; State Hay i>. Sweeney, 14 Bush, 1; Ij«»alle d. 

r.Rollin*,BII.H.660; State n. Buchanan, Btrobel,S9I11.8T0; Calhcart o. Robinson, 

6H. &J. 356; Sibley n. Williams, 3 Q. 4 6 Pet 264. Those amendatory of the 

J. 62 ; Bute d. Camming!, 33 Conn. 260 ; common law, if suited to tlie condition of 

Martin v. Bigelow, 2 Aiken, 187; Linds- things In America, were generally adopted 

leyp. Coats, 1 Ohio, 248; Bloom t^ Rich- by tacit consent. For the dUfcrlng vlewi 



by Google 



OH. in.} POBUATIQN AMD AHEKDMENT OF CONSTITUTION'S. 88 

ment sprang up, it vas a souioe of itumense moral power to the 
coloDiBta that they were able to show that the rights they claimed 
were oouTerred bj tlie common law, and that the king and Par- 
liament were seeking to deprive them of the common birthright 
of Ei^^lishmea. Did Parliament attempt to levy tazea in Amer- 
ica, the people demanded the benefit of that maxim with which 
for many generatdoDB every intelligent aubject had been &miliar, 
that those most vote the tax who are to pay it.' Did Parliament 
order offendeis against the laws in America to be sent to England 
for trial, every American was roused to indignation, and [h^>- 
tested against the trampling under foot of that time-honored prin- 
ciple, that trials for crime must be by a jury of the vicinage. 
Contending thus behind the bulwarks of the common law, Eng. 
lishraen would appreciate and sympatbize with their position, and 
Americans would feel doably strong in a cause that not only was 
right, but the jostioe of which must be confirmed by an appeal to 
the conaciousneBS of their enemies themseliws. 

The evidence of the oommon law consisted in part of the declar- 
atory statutes we have mentioned,^ in part of the commentaries 
of such men learned in the law as had been accepted as authority, 
but mainly in the decisions of the courts applying the 
•law to actual controversies. While colonization con- [•25] 
tinued, — that is to say, until the war of the Revolution 
actnally commenced, — these decisions were authority in the 
colonies, and the changes made in the common law up to the 
same period were operative in America also if suited to the con- 

tMkat hy EngiUb Mtd American tUitw- tboogh the iune tribute or tax Uid bj 

■wn upon the geneiKl qoMttODi here di>- ooiuent or b}r imposing be kU ope to the 

COMed, M« th> obMTTmtiaiii bj OoTetnor pnne, jet it worki diTenely npoii the 

Pownall, and Uw commenU of Franklin courage. So that you maj conclude th&t 

fteieoD, A Weib of FianUln, by Bparka, no people oTercherged with tnbaU i« fit 

til. fbr empire." Lord Bacon on tbe Tma 

1 " Tbe bleeeing of Jadab and bwobar Greatneu of Kingdomi. 
will nerer meet ; tbat tbe aaiue people or * Theie ttatnte* upon the point! 

■alion ibonld be both tbe Uon'a wbelp which are corered by them are the beat 

and tbe aaa between bnrdena ; neither eridence ponible. They are the UTing 

wiD It be that a people OTarlaid with taset charter* oTEogliah liberty, lo tbe preaent 

■bonld erer become TiliaDt and martial, day ; and aa tbe fbremnnen of the Amer- 

It b but tliat taxes levied by conieni lean conititntioni and tlie Bonrce from 

•f the Stale do abate men't oonrage leu, which hare been derived many of the 

as it bath been seen notably in the exei« moat Important ardcles in their bills of 

ebe of tbe Low Conntries, and in aonte righti, they are constantly appealed to 

degree is the Buhaidic* of England, for when personal liberty or private rights 

yen must note that we speak now of the are placed in apparent antagonism to tha 

btart and not of tbe purse ; so that at alainw of govenuDent 



by Google 



84 O0N8TITDTI0NAL LmrTATIOHB. [OH. m. 

ditioa of things here. The opening of the war of the Revolu- 
tion is the point of time at which the oontinuouB stream of the 
common law became divided, and that portion which had been 
adopted in America flowed on by itself, no longer subject to 
changes from across the ocean, but liable still to be gradually 
modified through changes in the modes of thought and of busi- 
ness among the people, as well as through statutory enactments. 
The colonies also had legislatures of their own, by which laws 
had been passed which leere in force at the time of the separa- 
tion, and which remained unaffected therel^. When, therefore, 
they emerged from the colonial condition into that of indepen- 
dence, the laws which governed them consisted, firit, of the com- 
mon law of England, so far as they had tacitly adopted it as 
suited to their condition ; gteond, of the statutes of England, or 
of Great Britain, amendatory of the common law, which they Iiad 
in like manner adopted ; and, third, of the colonial statutes.* 
The first and second constituted the American common law, and 
by this in great part are rights adjudged and wrongs redressed 
iu the American States to this day.' 

> The like condition of tblngiii found B&ok o. Tiakton, 101 U. S. 129. In 
to eziit in tlie new Sutea formed and ad- Treadwaj c. Schnauber, 1 Dak. 286, it 
mitted to the Union lince the Conatitu- *tu decided that without express antlior. 
tion mtM adopted. CoDgreii createa ter- itj a territorial leglilaturB could not Tola 
rilorial gorernmenta of different grades, aid to a railroad compan;. 
but generall}- with plenary leg^alatira ' A few of the State*, to get rid of 
power either in the goremor and judges, confUaion in the law, deemed it desirable 
a territorial council, or a territorial legi*- to repeal the acta of Parliament, and to 
lature choaen hy the people; and the re.enact mch portlona of them «a were re- 
authority of tliia body exCenda to all right- garded important here. See the Micbi- 
ful aubjecta of legi^alion, subject, how- gan repealing itatnte, copied f^om that of 
erer, tothediaapproTalofCoDgreaa. Via- Virginia, in Code of 1620, p. 469. Othen 
oennea UoiTenit J r. Indiana, 14IIow. 2S8; named a date or erent, and proTlded by 
Minora' Bank r. Iowa, 12 How. 1. The law that English itatntei pasted anbae- 
legislation, of course, must not be in con- quently should not be of force within 
Sict witli the law of Congress conferring their limits. In some of the new States 
the power to legislate, but a Toriance there were also other law* in force than 
fh>m it may be supposed approved by those to which wa have above alluded. 
that body, if suffered to remain without Although It bog been aaid in La PlsLsunce 
disapproval for a series of years after Bay Harbor Co. u. The City of Monroe, 
being duly reported to it. ainton e. En- Walk. Oh. 156, and Depew v. Trustees 
glebrect, 13 Wall. 484, 448. See Williama of Wabash & Erie Canal, 5 Ind. 8, that 
p. Bank of Hichigan, T Wend. 639 ; Swan the ordinance of ITST was superseded in 
B. Williams, 2 Mich. 427 ; Stoat r. Hyatt, each of the States formed out of the 
13 Kan. 232 ; Himman o. Warren, 8 North- West Territory by the adoption of 
Orag. 406. As to tlie complete control of a Stale constitution, and admission to the 
Congrett over the territories, see United Union, yet the weight of jndioial author- 
States f. Reynolds, 98 U. & 146 ; NsUodbI ity is probably the oUier way. In Hogg 



by Google 



CH. lU.] FORMATION AND AUENDHENT OF CONSTITUTIONS. 35 

* Every coloDj had also it« charter, emanating &om the [* 26] 
Ciown, and constituting its colonial constitution. All 
bat two of these were swept away by the whirlwind of revolu- 
tion, and others substituted which had been framed by the people 

V. The Zaneivllle Ouul Mannfactaring New Bedford Bridge, 1 Wood. & M. Ul ; 

Co., 6 Ohio, 410, it wu held that the pro- Sttkder r. Graham, 10 Hov. 82 ; Doe v. 

Tiaion of the ordinaace that Uie oaTigb- DougUis, 8 filackf. 12 ; Connecticut Ma- 

Ue iriten of the Teiritory and the cairj- Rial Life In*. Co. v. Crou, 18 Wii. 109; 

bi^-placea between «hoald be oommon Milwaukee Gaalight Co. n. Schooner 

highwa^a, aod for ever free, waa perma- Gamecock, 23 Wli. 114 ; Wlaconain River 

Denl in ita obligatloo, and could not be ImproTement Co. b. Lyona, 3D Wie. 61 ; 

altered without the coQUOt both of the Atlcrney Oeueral v. £^a Claire. 87 Wia. 

people of the State and of the United 400; Keokuk n. Packet Co., 46 Iowa, 190. 

Statea, given through their repreaenu- Compare Woodbum v. Kilbourn Mannf. 

tivea. •■ It ii an arlicte of compact; and Co.. 1 Abb. U. 8. 158; a. c. 1 Blaa. MO. 

until we aiaume the principle that the Id the uasee in the first and tliird McLean, 

aoTereign power of a Slate is not bound however, the opinion was eipreaied that 

bj compact, thii clauie mutt be condd- the States might lawfully improve the 

Med obligUoiy." Jnitice McLeait and navigable waten and tlie carrying placet 

Jvige LeauSi, in Spooner v. McCoDnell, between, and charge tolti npon the nae 

1 McLean. 337, examine this tubject at of the improvement to obtain reimburee- 

eoniiderable length, and both arrive at menc of their expenditure*. See also 

the tame coodoilon with the Ohio court, pet, *592. 

The view taken of the ordinance in that In tome of the States formed oat of 

caae was, that such parti of it as were the territory acquired by the United State* 

dMigned temporarily to regnlate the gov- from foreign powers, traces will be found 

erement of the Territory were abolished of the laws existing before the change of 

by the change from a territorial to a Stale government. Louisiana has a code peco- 

govemment, while the other parta, which liar to Itself, baaed upon the civil law. 

were designed to be permanent, ue nn- Much of Mexican law, and especially as 

alterable except by common consent, regards lands and land title*, is retained 

Someof these,however,belngguaranteed in the systems of Texas and California. 

by the federal Conititution, afterwards In Michigan, when the acta of Parlia- 

adopted, may be regained as practically ment were repealed, it was also deemed 

annulled, while any others which are op- Important to repeal all lawa derived from 

poeed to the conatitotion of any Stat« France, through the connection with the 

formed oot<rf the Territory must also be Canadian provinces. Inclndingthe Coutuns 

eoosidered ■• annulled by common con- de ParU, or ancient French common Uw. 

•ent; the people of the Sute assenting In In the mining States and Territories a 

(farming their constitution, and Congress peculiar spedet of common law. relating 

Id admitting the State into the Union nn- to mining rights and titles, has sprung up, 

der it. The article In iwgard to oaviga- having ita origin among the miners, but 

Ue water* it therefore still in force. The recognized and enforced by the conrta. 

tame waa also taid in regard to the arti- Regarding the canon and ecclesiastical 

cle prohibitliig slavery, tbough that aUo law, and their force in thia country, see 

may now be regarded as practically ad- Crump r. Morgan. 8 Ired. Eq. 91 : Le Bar- 

noUed by the amendment to the federal ron n. Le Barron, 3fi Vt. 866. That con- 

CoDvtitation covering the same ground, itltnllon* are lupposed to be framed in 

The like opinion was subsequently ex- referencetoexiitinginBtitntions,«eePope 

peated in Palmer i.. Commiaiionen of v. Phiftr, 3 Heisk. 686. A change in a 

Cayahoga Co., 8 HcLesn, 2S6, and in conatilniion cannot retroact upon le^alv 

Jolly D. Terre Haute Drawbridge Co., 6 tJ on so at to enlarfre its scope. Dewar d. 

"-'-11,237. See alM> United Sutet v. People, 40 Hicfa. 401. 



by Google 



86 coNSTirnTioyAL lihitationb. [ch. m. 

themselves, tbroagli the agenoy of conventioiiB wfaicfa they bad 
chosen. The exceptions were those of Connecticut and Rhode 
Island, each of which States had oontinued its govemment 
under the colonial chartw, finding it sufficient and satisfactory 
for the time being, and accepting it aa the constitution for the 

State.' 
[• 27] New States have since, from time • to time, formed con- 
stitutions, either regularly ia pursuance of enabling acts 
passed by Congress, or irregularly by the spontaneous actitm of 
the people, or under the direction of the legislative or executive 
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 plausible reasons for insisting that such admission 
[* 28] * had become a matter of right, and that the necessity for 
an enabling act by Congress was dispensed with by the pre- 
vious stipuladons of the national govBrnment in acquiring the 
territory from which such States were formed.' Some of these 
constitutions pointed out the mode for their own modification ; 
others were silent on that subject ; hut it has been assumed that 
in such cases the power to originate proceedings for that purpose 
rested with the legislature of the State, as the department most 
nearly representing its general sovereignty ; and this is doubtless 
the correct view to take of this subject.^ 
The theory of our political system is that the ultimate sover- 

1 It i« worthj of DOte that the Snt quired th« reqaiiite popalHtioa, hid in 

cue in which ft iegiilKtiTe enKctmentwu kbiolnte right to fbrm » conititntian uid 

declared nncooatitational and void, on tlie be admitted to the Union onder it. See 

gronnd of incompatlbililj with the con- Scott b. Detroit Toung Uen'e Society'* 

(titutionof the fiuie, wm decided nnder Leoee, 1 Dong. (Mich.) UB.andtheooa- 

one of tbeie rojal chartera. The caw trary opinion in Hjen n. Manhattan 

wai that of Trerett p. Weedeo, decided Bank, 20 Ohio, 383. The debates in th« 

bf the Snperior Court of Shode Iiland Benateof the United Statei on the admlB- 

In llsa. See Arnold'* HIrtor; of Rhode tlon of Michigan to the Union go fully 

Iiland, Vol. 11 c. 24. The caae is ftirthei into thii queition. See Beoton'* Abridg- 

referred to, ;Mif, p. * ISO, note. The next mcnt of Congre««!onal Debates, Vol. 

L-a*e to meet the eame fate wai Bayard n XIII. pp. 09-72. Aod a* to the rigiit 

Singleton, Martin (N. C), 48, decided in of the people of a Territory to originals 

NoTember, 1T89. measure* looking to an application for 

* This was the claim made on belulf admission to the Union, see opinion* of 

of Jlicbigan; it being insisted that the Attomeyt.Qeiieral, Vol. II. p. 7S6. 

citizens, under the prorislons of the ordi- * See Jamesoa on CoDStitntional Con- 

naoce of 1787, whenerar tbe territorr ao- veotiona, c. 8. 



by Google 



CH. m.] FOBKATION AND AMENDMENT OF CONSTITUTIONS. 87 

eignt^ is io the people, ^m whom Bpriogs all legitimate Etntlior- 
ity.' The people of the Uuion created a national constitutiou, and 
conferred upon it powers of sovereignty over certain subjects, and 
the people of esoh State created a State government, to exercise 
the remaining powers of sovereignty bo far as they were disposed 
to allow them to be exercised at all. By the constitution which 
they establish, they not only tie np the hands of their official 
mgeooies, but their own hands as well ; and neither the officers of 
the Stats, nor the whole people as an f^gregate body, are at lib- 
erty to take action in opporation to this fundamental law. But in 
STsry Stat«, although sJl persons are under the 'protecHon of the 
goTemment, and obliged to conform their action to its laws, there 
are always some who are altt^ther excluded from participation 
in the government, and are compelled to submit to be ruled by 
an authority in the creation of which they have no choice. The 
politieal maxim, Uiat government rests upon the consent of the 
governed, appears, therefore, to be practically subject to many 
exceptions; and when we say the sovereignty of the State is 
vested in the people, the qoestion very naturally presents itself, 
What are we to understand by The People as used in this con- 
nection ? 

• What ihmid be the correct rule upon this subject, it [* 29] 
does not fall within our province to consider. Upon this 
men will theorise ; but the practical question precedes the for- 
mation of the Ccmstitution and is addressed to the people them- 
selves. As a practical fact the sovereignty is vested in those 
persons who are permitted by the constitution of the State to 
exercise the elective franchise.' Snch persons may have been 
designated by description in the enabling act of Congress permit- 
ting the formation of the constitution, if any such there were, or 
the convention which framed the constitution may have deter- 
mined the qualifications of electors without external dictation. 
In either case, however, it was essential to subsequent good order 
and contentment with the government, that those classes in gen- 
eral should be admitted to a voice in its administration, whose 

i McLtn, J., In ^Moner v. HcCod- Geld. 221 ; PotteT*! Dwarrb on Btat 

hU, 1 UcLMn, 847 ; (Fai'to, Ch. J., tn c. 1. 

Hbior V. HsppeiMtt, 21 Wall. 163, 173 ; * " The people, for politieal pnrpoeet , 

OmpbeU'e Cue, 2 Blmnd Ch. S09 ; •. o. miut be eoniidered u ■ynonyniDui with 

£) Am. Dec. 800; B«7nold* «. Baker, qnalifled TOten." BUir v. Ridgetr, il 

Mo.es. 



by Google 



88 CONSTITUTIONAL LIMITATIONB. [CH. m. 

exclneion on the ground of want of capacity or of moral fitness 
could not reasonably and to the general aaUBfoction be defended. 

Certain classeB have been almost uoiTeraally excluded, — the 
slave, because he is assumed to be wanting alike in the intelli- 
gence and the freedom of will essential to the proper exercise of 
the right; the woman, from mixed motives, but mainly, perhaps, 
laeoause, in the natural relation of marriage, she was supposed to 
be under the influence of her husband, aud, vrhere the common 
law prevailed, actually was in a condition of dependence upon 
and subjection to him ; ' the infant, for reasons similar to those 
which exclude the slave ; the idiot, the lunatio, and the felon, on 
obvious grounds ; and sometimes other classes for whose exclusion 
it is difficult to assign reasons so generally satisfactory. 

The theory in these cases we take to be that classes are ex- 
cluded because they lack either the intelligence, the virtue, or the 
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 end easy of application, and 
it must be made permanent, or an accidental majority may at any 
time change it, so as to usurp all power to themselves. But to 
be definite and easy of application, it must also be arbitrary. The 
in&nt of tender years is wanting in competency, but he is daily 
acqnirii^ it, and a period is fixed at which he shall conclusively 
be presumed to possess what is requisite. The alien may know 
nothing of our political system and laws, and he is ex- 
[* 30] eluded until * he has been domiciled in the country for a 
period judged to be sufficiently long to make him familiar 
with its institutions ; races are sometimes excluded arbitrarily ; 
and at times tn some of the States the possession of a certain 
amount of property, or the capacity to read, seem to have been 
regarded as essential to satisfactory proof of sufficient freedom of 
action and intelligence.' 

' Soma T«ference ii made to tho re»- croft'i ijnoptu of tbe flnt conitita- 

■oni Tor the exclusion In the oplntoa* in tion* of the oiigiiMl State*, In bia 

Bradwell v. Stftt«, 16 Wall. 180, and Biitorj of the Americaa ReTolatioa, 

MiDOT c Happenett, 21 WaU. 162. c 6. For tome local electlona it U 

* State II. Woodrnff, 2 Da7, GOl; Cat- quite common lUll to require t^"^ 

lin V. Smith, 2 8. & R, 267 i Opinion! ert; qusliSciition or the pajment of 

of Judge*, IB I^ck. 575. See Mr. Ban- taxei in the TOler; bnt atatntM of thli 



by Google 



OB. m.] FOBHATIOIT Aim AMENDHSyT OF CONSTIXnTIOlTS. 89 

Whatever rule is once established must remain fixed until 
those vho by means of it haTe the power of the State pat into 
Uieir hands see fit to invite others to participate with them in its 
exercise. Any attempt of the excluded classes to asseit their 
right to a share in the government, otherwise than by operating 
upon the public opinion of those who pOBsess the right of suf&age, 
would be regarded as an attempt at revolution, to be put down 
by the strong arm of the government of the State, aseisted, if 
need be, by the military power of the Union.^ 

Id regard to the formation and amendment of State coDBtitu- 
tions, the following appear to he settled principles of American 
constitutional law : — 

I. The people of the several Territories may form for them- 
selves State constitutions whenever enabling acta 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 eo- 
abling acta ahall clothe with the elective franchise to that end. 
If the people of a Territory shall, of their own motion, without 
such enabling act, meet in convention, frame and adopt a consti- 
tution, and demand admiHsion to the Union under it, such action 
does not entitle them, as matter of right, to be recognized as a 
State ; but the power that can admit can also refuse, and the 
territorial status must be continued until Congress shall be satis- 
fied to suffer the Territory to become a State. There are always 
in these cases questions of policy aa well as of constitutional law 
to be determined by the Congress before admission becomes a 
matter of right; — whether the constitution formed is repubhcan; 
whether suitable and proper State boundaries have been fixed 
upon ; whether the population is suflScient ; whether the proper 
qualifications for the exercise of the elective franchise have been 
^^ed to; whether any inveterate evil exists in the Territory 
which is now subject to control, but which might be perpetuated 
under a State government ; — these and the like questions, in 
which the whole country is interested, cannot he finally solved 

deMriptUm mre g«nerftllj conitnieil VHter- ' Th« cam of Bhode I«Und and tha 

allj. See Crawford ■>. Wilton, 4 Barb. "Dorr BebeUiim," w> popularlj known, 

6M. Hanj cpecial itatDtet, Teferring to will be freah in the mindi of all. For 

(be pe<^le of ■ manicipalitj the qaeition m diiCDUiou of lome of the legal w- 

of TottDg aid to internal improTementi, pecti of the CMe, lee Lather o. Borden, 

hare conflned (be liglit of Toting on tha 7 How. 1. 
qnettioii to tftxpv*"- 



by Google 



40 OONBTITUTIOITAL LDnTATIONB. [CH. ID. 

l>y the people of the Territory for themselveB, bat' tlie final deci- 
Bion must rest with Congress, and the judgment mnst be faToraUe 
before admission can be claimed or expected.^ 

II. Iq the original States, and all others sabsequently admitted 
to the Union, the power to amend or revise their constitutions 
resides in the great body of the people as an organised body poli- 
tic, who, being vested with ultimate sovere^nty, and the source 
of all State authority, have power to conCrol and alter at will the 
law which they hare made. Bat the people, in the legal sense, 
must be understood to be those who, by the existing oonstitution, 
are clothed with political rights, and who, while that instrument 
re:nnins, will be tlie sole organs through which the will of the 
body politic can be expressed.' 

III. But the will of the people to this end can only be ex- 
pressed in the legitimate modes by which such a body politic 
can act, and which must either be prescribed by the oonstitution 
whose revision or amendment ia sought, or by an act of the legis- 
lative department of the State, which alone would be author- 
ized to speak for the people npon this subject, and to pMnt out a 
mode for the expression of their will in the absence of any pro- 
vision for amendment or revision contained in the constitution 
itself.* 

' When a oonitltuUon hu been tmr to cbU « conrention for KTbion, tod 

adopted bj ths people of a Territory, ai to the mode of sobmittiBK'.iti work to 

preparatai7 to ndin»»EaD m a State, and the people. In Collier v. Frterion, 24 

Congres* preicribee certain changes and Ala. 100, it appeared tliat tlie legiBlalttre 

additions to be adopted h7 the Irgiila- bad propoeed eight different imendmeBtt 

ture aa part of the conititution, and to be labmitted to the people at the aame 

declares such chRngei and addition! to be time; the people had approred Ihem, 

fnndamentalconditioniofadnilHionof the and «tl ttie raquiaite proccedingi ta 

State, and the legiilatare accept* inch make them a part of the oonititation ba4 

changea and additiona, and it ia admitted, been had, except that in the subsequent 

tbechangesbecome a partof thecon»titD- legislature the resolation for their tvCii- 

tjoo, and binding as snch, althongh not cation had, bj mistake, omitted to redt« 

submitted to the people for approval, one of them. On the question whether 

Brittle V. People, 2 Neb. IBS ; Secombe c. this one had been adopted, we quote fh>m 

Kittleson (Minn.) 12 N. W. Re^. £19. the opinion of the court: "Tlia conitit» 

* Luther v. Borden, 7 Bow. 1; Well* tion can be amended in but two «»;•: 

r. Bain, TS Penn. St. S9. either by the people who originally 

■ Optnioosorjadi[es,eCu«h. ET3. The framed it, or in the mode preecribed hj 
8nt coinxUtation of New York contahied the instrameot itself. If the last mode is 
no provision for its own amendment, and punned, tbe Bmeodmenta must be pro- 
Mr. Hammond, in his Political Hisl«r; of posed bj two thirds of each hODte of tbe 
K«w York, Vol. L a. 26, gives a rerj general aMembly ; they mast be pvb- 
Interesting account of tbe cotitrorersj Hslied in print, at least three montht 
before the legislature and in the eosmcH keTore tlN next general election for rep- 
of rerition m to the power of the legist*- reeentatiTes ; U mart a^ear fnm dN 



by Google 



CH. m.] FOKMATION AMD AMKNDHBUT OP CONSTITUTIONS. 41 

" IV. In accordance with Hniveraal practice, and from [• 82] 
the vetj neoeasitj of the case, ainendmentB to an exist- 
ing coDatitatioQ, or entire revisions of it, must be prepared and 
matured by some body of representatives ohosen fiar the purpose. 
It is obviouBly impossible for the whole people to meet, prepare, 
and discuss the proposed alterations, and there seems to be no 
feasible mode by which an expression of their will can be obtained, 
except by asking it npon tiie single point of assent or disapprovul. 
Bat no body of representatives, unless specially clothed with 
power for that ptirpose by the people when choosing tliem, can 
nghtfnlly take definitive -action upon amendments or revisions ; 
tbey most submit the result of their deliberations to the people — 
who alone are competent to exercise the powers of sovereignty in 
framing the fnndamental law — for ratification or rejection. The 
ooDstitutional convention is the representative of sovereignty only 
in a very qualified sense, and for the specific purpose, and with 
the restricted authority to put in proper form the questions of 
amendment upon which the people are to pass ; but the 
changes in the * fundamental law of the State must be [* 3S] 
enacted by tbe people themselveB.' 

Tetnnu made to tbe Secretu? of State dUpente with tbem t To do to wonld be 

ttiKl a mRJoritj of thoae voting tat repre- to violate the initrnment vhich thej are 

•Mitali*«a have voted in faror of the pro- awom (o mpport, and ereiy principle of 

pond mmeadmentB, and the7 mart be ptiblic law and iouod conititDltonal pol- 

laliied bjr two tlibda of ewdi faooM of the 107 require* tbe coorti to proDonDce 

ncxtg«tietBlaaKniU;aft«riiichriectioi], agalmt anj anMndment which ig not 

rMag hj yeat and naji, the propo«ed ihown to hare been made In acoordance 

■■ widw entt baviDK be«i) lead at each with the mka preuribed hy tbe fanda- 

•eaaioo three timei on three wrerat dajt mental law." See alio State v. McBriile, 

ia «at^ hoaae. We entertain no doubt 4 Mo, SOS. But where tbe conttltutinn 

that la ehange tbe oonititntlon in any pit>*ided that amendmenti ihould be pro- 

Mher mode than bj a canvcMion, every po*ed bj one general aaaembi}', and ap- 

n^Nkttioa which b demanded hj the proved and aDbmitled to popnlar vote hy 

iaalrMncnt itieir mnat be obaerred, and a lecond, and wventeen amendmenta 

the iMniaaion of any one i« &tal to tbe were thai approved together, and the 

MMndinent. We acarcely deem any lecond general aaaenibly passed npon and 

argnm«Dt neceaavy to enforce thii prop- nbmitted eight by one hill uni nhie by 

MitJ^. The conatttntlon ii the anpreme another, the labmiasion waa held siiffl- 

aadparamoimtlaw. Tbe mode by which cfent and valid Tniateee of University 

amendnKnts are to be nade under It t* v. Mclver, 72 N. C. 78. And *ee further 

daariy deftned. It hu been mM 4iat State b. Timme, (Wis.) 11 N. W. Rep. 

oMtain acta are to be done, certain ■«. 786. 

qoWrions are ta be observed, before a ' See, apon this subject, Jameson 00 

rtiaagu can be effected. Bat to what the Cnmstltutfonal Convention, }§ 416-118, 

fHpoae am ttwae acts leqalrfd or thoae and 479-620. Tliis work Is so complete 

NqaUliaa* eiqrined, if the letpslature or taii sstiaractory In its trentment of the 

■ay department of tbe government can geaeral subject as to leave little to be 



by Google 



42 CONSTITDTIONAL LIMITATIOK8. [CH. HI. 

v. The power of the people to amend or revise theii constitu- 
tions is limited by the CoDBtitution of the United States in the 
following particulars : — 

1. It must not abolish the republican form of government, since 
such act would be reyolutionary in its character, and would call 
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 peisons of crime, or pro- 
vide ex poit facto for the punishment of acts, by the courts, which 
were innocent when committed, or contain any other provi^on 
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 
dii-ect and forcible intervention of the government of the Union, 
it would be the duty of the courts, both State and national, to 
refuse to enforce them, and to declare them altogether void, as 
much when enacted by the people in their primary capacity as 
makers of the fundamental law, as when enacted in the form of 
statutes through the delegated power of their legislatures.^ 

VI. Subject to the foregoing principles and limitations, each 
State must judge for itself what provisions shall be inserted in its 

raid b; one who ihall afterwardi attempt sppean (hat they do not conititste a 

10 coTer the MOie ground. Where & majority of all who rated at tlie lame 

convention to frame amendmenti to tlie elecliau. SeeBtats v. Sirlfl, Sdlnd. 606; 

coiutitution !■ gittlng under a legialatiTe and catei cite<), paU, * G6S. 
act from which all ita aalhority ia de- ■ Conit. of U. S. art. 4, g 4 ; F«der«l- 

rjved. the lubmitaion of ita labora to a iat, No. 4S. 

vote of the people in a muiner diflferent * Cnmminga v. Miaaonri, 4 Wall. 277 ; 

from that preacribed b; the act ii nnga- JeSenon Branch Bank p. Skellj, 1 Black, 

tory. Wella u. Bain, 75 Penn. St 89. 480; State v. Keith, 6S K. C. 140; Jac- 

Suchaconvenlion haaiioinhereni rigbta; oway v. Denton, 25 Ark. 626; Daion 

it haa delegated powera only, and muat Bank e. State, B Terg. 490; Ginliwr v. 

keep within them. Wooda'a Appeal, 75 Stephena, 1 Heiak. 280; Lawaon b. Jef- 

Peno. Sl 69. Compare Loomia i-. Jack- friea, 47 Mlaa. 666 ; s. o. 12 Am. Bep. 

aon, fl W. Va. 61S, 708. The Supreioe S42; Penn •>. ToUiaon. 26 Ark. 646; 

Court of Hitaouri hare eipreaied the Dodge e. Woolaey, 18 Bow. 331 ; Faclflo 

opinion tliat it waa competent for a con- B. R. Co. v. Maguire, 20 Wall. SB ; Bail- 

ventlon to put a new conatitution in road Co. d. McClure, 10 Wall. 611 ; While 

force without aubmltting it to the people, e. Hart, IS Wall. 64B. The fact that tha 

State r. Neal. 42 Mo. 119. But this waa conatitution containing the obnoxiou* 

tAiler. Where propoaed amendmenta are proviaion waa aubmitted to Congreaa, 

required lo be aubmitted to the people, and the State admitted (o full righta tn 

and approved by a majority tote, It ia a the Union under it, cannot make auch 

mooted queation whetlier a majority of proriiion valid. Gqdq d. Bany, 16 Wall. 

thoM voting tiierean ii aufflclent, when it 610. ' 



b, Google 



Ce. m.} FORMATION AND AMENDMENT OP CONSTITUTIONS. 48 

cODStttufdoD ; how the powers of govemmeDt shall be apportioned 
ID Older to their proper exercise ; what protection shall be thrown 
around the person or property of the citizen ; aad to what extent 
private rights shaU be required to yield to the general 
good.' 'And the courts of the State, still more the [• 34] 
courts of the Union, would be precluded from inquiring 
into the justice of their action, or questioning ita validity, because 
of any supposed confiict with fundamental rules of right or of 
government, unless they should be able to show collision at some 
point between the instrument thus formed and that paramount 
law which constitutes, in regard to the subjects it covers, the 
fundamental rule of action throughout the whole United States.' 

' Matter of the Redprocilj Bank, 22 p*rt allow the legiaUture to msttire ipe- 

H. T, 9 ; McMallen v. Hodge. G Teiu, ciflc unendineDta to be lubmitted to the 

H; Pmn V. ToltiMO, 26 Ark. 546; Mat- people Mpar&t«I]', and llicBe become a 

Mr ol OliTer Lee & Co.'i Bank, 21 N. Y. part ot th« camtitacioD if adopted b; the 

B- In the cue Lut cited, iJnio, J., laj* : requitile vote. 

" The [coDititutiDiial] coDTcntion wai not When the Ute rebellion had been pat 
obliged, like tbe legLsUtire bodie*, to look dowa by the military forces of the United 
cafefoUy to tbe preierTation of veited Stalei, and the State goverumenlg wlilch 
light*. It wa* competent to deal, lubject congtituted a part •>( the dieloyal lyilem 
lonlifleation by the people and to the bad been displaced, lerioui queitioni 
CoMtitntiOD of tbe (edeial govemiDent, were tiiaed as to the proper steps to be 
with all prirnte and social rights, and taken in order to restore the States to 
with all the existing laws and institutions tiieir hanoonious relations to the Union. 
tl the State. If the conTention had so These questions, and the controversy 
vQled, and the people had concnired, all over tliem, constitnled an important part 
famer charters and grant* might ha*e of the history of our country during the 
keen annihilated. When, tberefore, we administration of President Johnson ; but 
era seeking for tbe true construction of a a* it is the hope and trust of our people 
constitutional provision, we are constantly that the occasion for discussing such 
lo bear in mind that its authors were not questions will neTer arise again, we do 
ttectiting ■ delegated authority, limited not occupy space with them in this work, 
by other coDBtitn^onal restrainU, but are It suffices for the present to say, that 
to look upon them as the founders of a Congress claimed, insisted upon, and en- 
State, intent only npon establishing such forced the right to prescribe the steps to 
principles as seemed best calculated (o pro. be taken and the conditions to be ob- 
dnoe good government and promote the served in order to restore these States to 
public happijiew, at the expense of any their former positions in the Union, and 
aad all exiating institutions which might the right aiio to determine when the pre- 
Stood in their way." scribed condition* had been complied 
* All the State constitutions now con- with, so as to entitle them to representa- 
tafai within themselves provlsiom for tion In Congress. There is some discos- 
tiieir amendment. Some require the sion of the general subject In Texas v. 
question of calling a convention to re- While, 7 Wall. 700. And see Gnnn o. 
vise the constitation to be submitted Barry, 16 Wall. 610. 
lo tbe people at stated periods ; othen It tau been decided in some cases that 
leave it to tbe legislature to call a con- a constitution is to have effect from the 
vcniian, or to (ubmlt to the people the time of its adoption by the people, end 
qntatloa of calliog one ; while the ia*iot not from the time of the admimon of tlie 



by Google 



44 ooNBTrnmoNAL LnnrATioNB. [ch. ni. 

How far the conatitatioQ of a State shall descend into the par- 
tictilara of govei-nment, is a questioa of policy addressed to the 
ooDventioo which forms it. Certain things are to be looked for 
in all these instruments ; though even as to these there is great 
variety, not only of substance, but alao in the minuteness of their 
provisions to meet particular cases. 

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

II. Generally the qualifications for the right of Buf&i^ will 
be declared, as well as the conditions nnder which it shall be 
exercised. 

III. The usual checks and balances of republican government, 
in which consists its chief excellence, will be retained. The most 
important of these are the separate departments for the exercise 
of legislative, executive, and judicial power ; and these are to be 
kept as distinct and separate as possible, except in so far as the ac- 
tion of one is made to constitute a restrunt upon the action of the 

others, to keep them within proper bounds, and to prevent 
[' 35] hasty and improvident action. * Upon legislative action 

there is, first, the cheek of the executive, who will generally 
be clothed with a qualified veto power, and who may refuse to ex- 
«cute laws deemed unconstitutional ; and, second, the check of the 
judiciary, who may annul unconstitutional laws, and punish those 
concerned in enforcing them. Upon judicial action there is the 
le^lative check, which consists in the power to prescribe rules for 
the courts, and perhaps to restrict their authority ; and the execu- 
tive check, of refusing aid in enforcing any judgments which are 
believed to be in excess of jurisdiction. Upon executive action the 
legislature has a power of restraint, corresponding to that which 
it exercises upon judicial action; and the judiciary may punish 
executive i^ents for any action in excess of executive authority. 
And the legislative department has an important restraint upon 
both the executive and the judiciary, in the power of impeach- 
ment for illegal or oppressive action, or for any failure to perform 
oflBcial duty. The executive, in refusuig to execute a legislative 

SUta into th« Union by CongNM. Scott (Hiidi.) 119 i OnnplMU v. Slekb, S6 
p. Tonng H«d'i Sodetj'a LeMee, 1 Dong. Tan*, 761. 



by Google 



CB. in.] FOBHATION AND AMBSDUSST OF OONSTITITTIONS. 45 

enactment, will always do so with the peril of impeaohmeut in 
view. 

IV. Local Bclf-govemment havii^ always been a part of the 
English and Amerioaii systems, we shall look for its recognitioo 
in any such iostj'ument. And even if not expressly recognized, it 
id still to be understood that all these instrameotfi are framed with 
its present existence and anticipated continuance in view.^ 

V. 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 
goverameDt ; such as, that all freemen, when they form a social 
eompact, are equal, and no man, or set of men, is entitled to ex- 
cluaiTe, separate public emoluments or privileges from the com- 
munity but in consideration of public services ; that absolute, 
ubitrsry power over the lives, liberty, and property of freemen 
exists nowhere in a republic, not even in the largest majority ; 
that all power is inherent in the people, and all free governments 
are founded on their authority, and instituted for their peace, 
safety, happiness, security, and the protection of property ; that 
for the advancement of these ends they have at all times an in- 
alienable and indefeasible right to alter, reforai, or abolish their 
goTemment in such manner as they may think proper ; that all 
elections ahall be ^e and equal ; that no power of suspending 
the lawH shall be exercised except by the legislature or its anthor- 
it^- ; that standing armies are not to be maintained in time of 
peace ; that representation shall be in proporticn to population ; 
that the people shall have the right freely to assemble to consult 
of the common good, to instruct their representatives, and petition 
for redreas of grievances ; and the like. 

2. Those declaratoiy of the fundamental rights of the citizen : 
as that all men are by nature free and independent, and have 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 con- 
stitutional 'sanction ; that the free exercise and enjoy- [* S6] 
ment of religions profession and worship, without discrim- 

8 Ulch. 228 ; Pmpla v. 



by Google 



46 CONSTITUTIONAL LIMITATIONS. [CH. IlL 

ination or preference, shall for ever be allowed ; • that every man 
may freely epeak, write, and publish his sentiments on all 8ub> 
jects, being responsible for the abuse of that right ; that every man 
may bear arma for the defence of himself and of the State ; that 
the right of the people to be secure in their persons, honses, papers, 
and effects i^ainst unreasonable searches and seizures shall not 
be violated, nor shall soldiers be quartered upon citizens in time 
of peace ; and the like. 

3. Those declaratory of the principles which ensure to the citizen 
an impartial trial, and protect him in his life, liberty, and property 
against the arbitrary action of those in authority : as that no hill 
of attainder or ex pott facto law shall be passed ; that the right 
to trial by jury shall he preserved ; that excessive bail shall not 
he required, nor excessive punishments inflicted ; that no person 
shall be subject to be twice put in jeopardy for the same offence, 
nor be compelled in any criminal case to be a witness f^inst 
himself, nor be deprived of life, liberty, or property without due 
process of law ; that private property shall not be taken for pub- 
lic use without compensation ; and the like. 

Other clauses are sometimes added declaratory of the prin- 
ciples of morahty and virtue ; and it is also sometimes expressly 
declared — what indeed is implied without the declaration — that 
everything in the declaration of rights contained ig excepted out 
of the general powers of government, and all laws contrary thereto 
shall be void. 

Many other things are commonly found in these charters of 
government ; " 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 the State or of its people may vary from time to time, and 
which are therefore more properiy left to the control of the legis- 



> Hale r. Ererett, 68 N. H. 9; BMrd to provide for the choice of thete tgenti 

of Education v. Minor, 23 Ohio 8C 211. bj the people ; to Mcertain, limit, and 

■ "Thii,theD,ii the office of B writlen define the extent of the KOthonV thai 

[free] conititution : to delegate to rarioui delegated ; and to reeerve to the people 

public iDnctionarie* snch of tlie powert of their soTereigntj over ail thingt not tx- 

government ai the people do not intend prenly committed to their repreaentB' 

to exerci«e tor thennelrei ; to claasify tiTes." E. P. Huribot in Human Bighti 

these powera, according to tbdr nature, and th^ PoUtical Gnaratitie*. 
and to commit them to leparate agenti ; 



b, Google 



CH. III.] PORUATIOK AND AHELNDUBHT OF OONSTITTJTIOITa. 47 

lature, which can more eaaily and speedily make the required 
chaDges. 

Iq considering State constitutions we must not commit the 
mistake of supposing that, because individual rights are guarded 
and protected by them, they must also be considered as owing 
their origin to them. These instruments measure the powers of 
the rulers, but they do not measure the r^hts of the 
governed. * " What is a constitution, and what are its [• 87] 
objecU ? It ia 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 ia not the fountain of law, nor the incipient 
state of gOTernment ; it is not the cause, but consequence, of 
personal and political freedom ; it grants no rights to the people, 
but is the creature of their power, the instrument of their con- 
Tenience. Deigned 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 based upon the pre-existing condition of laws, 
rights, habits, and modes of thought. There is nothing primitive 
in it : it is all derived from a known source. It presupposes an 
<»ganized society, law, order, property, personal freedom, a love 
of political liberty, and enough of cultivated intelligence to know 
how to guard it against the encroachments of tyranny. A written 
constitution is in every instance a limitation upon the powers of 
government in the hands of (^ents ; for there never was a written 
republican constitution which delegated to functionaries all the 
latent powers which lie dormant in every nation, and are bound- 
leas in extent and incapable of definition." ^ 

I HuniltoD V. St. Looii County Court, of thoi^ht, method* of trying facti by 

16 Mo. 13, per BaUt, argueado. And we the neighborbood, and mutual rapoDsi- 

Mattcr of Oliver Lm & Co.'* Bulk, 31 bllity In neighborhood intereit* ; Che pre- 

K. T. 9 ; Lee v. State, 29 Ark. 266-0. cepti that hare come to ni ttom the rero- 

" Written conctitatian* *mDCtify and con- lutioni which overtumed tjninnie*; the 

Ann great principles, but the latter are lentimenC* or maDly Independence and 

prior Id eiiatence to the forawr." 3 Web- ielf-conlrol which impelled our anceiton 

rt«r*a Worka, S92. See alto 1 BI. Com. to*umman thetocalcommnnityloredre** 

124 ; 2 Storj, Life and Letter*. 278 ; Sid- local ctUb, imtead of reljing upon king 

ntj on Oaremment, c. 3, mm. 27 and SS. or leglilature at a distance to do lo, — if 

"U ttaia charter of State goTemment a recognition of all theae were to be 

wbicti we call a coiutitnlion were all there itricken from the bodj of oar conititn- 

waa of Gonttltutioiial command; if the tional law, a lifelesi ikeleton might te- 

Higes, tb« ctittoma, Che mazimi that main, but the lirins apirit; that which 

have (pmag (him thebabltaof Ufb, mode* gire* it force and attraction, wbkh raakee 



by Google 



48 CON8TIT0TIONAL UMITATIONS. [OH. UL 

It vnlualile and drawi to it the aSbctiant equal promiK with ouia, and bava on); 

of tlie people; thai nliich distiuguiahei been wanting in Che lupport and vitalitj 

it t'ruin tlie uuniberlesi cunititudoni, to wbich these alone can giTe, — thl* liTlog 

called.which is Europe bare be«i Mt Dp and breathing (pirit which lupptiM the 

and thrown down within the hut hundred Inlerpratation of the words at the wntteii 

years, many of which, in their expres- charter would be utterlj lo*t and gODt." 

tiona, Kened equallf fiur and to potwM People r. Hnrlbnt, 21 Mich. 44, lOT. 



by Google 



OH. IT.} CONSTBUCnON 07 STATE CONBTITI7TI01T8. 



•CHAPTER IV. [•88] 

OF THE COKSTBUCTION OF STATE CONSTITUTIONS. 

The deficienoies of humaD language are such tbat, if written 
instrnments were always prepared catefull; by persons skilled in 
tbe use of words, we should still expect to find their meaning 
often drawn in question, or at least to meet with difficulties in 
their practical application. But when draughtsmen are careless 
or iDCompet«at, these difBculties are greatly increased ; and they 
multiply rapidly when the instruments are to be applied, not only 
to the subjeetB directly within the contemplation of those who 
framed them, but also to a great variety of new circumstances 
which could not have been anticipated, but which must never- 
theless be governed by the general rules which the instruments 
establish. Moreover, the different points of view from which 
different individaals regard these instruments incline them to 
different views of the instruments themselves. All tbese oircum- 
■tances tend to give to the subjects of interpretation and con- 
struction great prominence in the practical adtotnistration of the 
law, and to suggest questions which often are of no little difficulty. 

Interpretation differs from construction in that the former is 
the art of finding out the true sense of any form of words ; that 
is, the sense which their author intended to convey ; and of 
enabling others to deiive from them the same idea which the 
author intended to convey. Construction, on the other hand, is 
the drawing of conclusions, respecting subjects that lie beyond 
the direct expressions of the text, &om elements known from and 
given in the text ; conclusions which are in the spirit, though not 
within the letter of the text Interpretation only takes place if the 
text conveys some meaning or other. But construction is resorted 
to when, in comparing two different writings of the same indi- 
vidual, or two differeht enactments by the same legislative body, 
there is found contradiction where there was evidently no inten- 



by Google 



60 OOXaTlTOTIOKAL LIMITATfOirS. [OH. IT. 

tion of Bach contradiction one of another, or where it happetiB 
that part of a, -writing or declaration contradicts t^e rest. When 
this ia the case, and the nature of the document or declaration, 
or whatever else it may be, is such as not to allow us to consider 
the whole as being invalidated by a partial or other contradiction, 
then resort must be had to construction ; so, too, if required to act 
in cases which have not been foreseen by the framers of those 
rulea, by which we are nevertheless obliged, for some binding 
reason, faithfully to regulate as well as we can our action respect- 
ing the unforeseen case.' In common use, however, the word 
tonttrtiction is generally employed in the law in a sense embra* 
cing all that is properly covered by both when each is used in a 
sense strictly and technically correct ; and we shall so employ it 

in the present chapter. 
[•89] From the earliest periods in the history of •written 
law, rules of construction, sometimes based npon sonnd 
reason, and seeking the real intent of the instrument, and at 
other times altogether arbitrary or fanciful, have been laid down 
by those who have aisumed to instruct in the law, or who have 
been called upon to administer it, by the aid of which the mean* 
ing of the instrument was to be resolved. Some of these rules 
have been applied to particular classes oE instruments only ; 
others are more general in their application, and, so far as they 
ore sound, may be made use of in any case where the meaning of 
a writing is in dispute. To such of these as seem important in 
constitutional law we shall refer, and illustrate them by references 
to reported oases, in which they have been applied. 

A few preliminary words may not be out of place, upon the 
questions, who are to apply these rules ; what person, body, or 
department is to enforce the eonstroction ; and how far a deter- 
minatiou, 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 

I Lieber, Legal and Political Hennen- convej' ideu." " CaiulTveliafi, in practic*, 

entict. 8e« Smith on 8ts.t. and Contt. deiennining the meaDing and application 

Cooatnietioii, SM Bonvier deflnea the aa to die caae in qoaatlon of the proTi- 

twn t«rm> inccinctlj aa follow*: "Inter- iloni d[ a conititution, atatute, wiU, or 

pr*fnCidn,ihe ditcoTerfandrepreMntatlon other inatrument, or of an oral agre»- 

of ihe true meaning o( anj aigni naed to meat." Law Diet 



by Google 



OH. IV.] CONSTBUonoK OF 8IATB C0HSTITCITC10N8. 61 

well as upon Bpeeified o£Boem Id each, and we shall likewise die- 
cover that the constttatioQ has sought to hedge about their action 
in Tarioos ways, with a view to the protection of individoal 
righta, and l^e proper separation of duties. And wherever any 
one is called upon to perfonn any oonstitatLODal duty, or to do 
any act in respect to which it can he supposed that the oonatito- 
tioD has spoken, it is ol>vious tiiat a question of constrnction may 
at once arise, npon which some one must decide before the duty 
is performed or the act done. From the very nature of the case, 
this deoifflon must commonly be made by the person, body, or 
department upon whom the du^ is imposed, or from whom the 
aet is required. 

Let us suppose that the constitution requires of the 
l^islatore, * that, in establishing municipal corporations, [* 40] 
it shall restrict their powers of taxation ; and a oi^ char- 
ter is proposed which confines the right of taxation to the raising 
of money for certain specified purposes, but in regard to those 
purposes leaves it unlimited ; or which allows to the munioipalitT' 
unlimited choice of purposes, but restricts the rate ; or which per- 
mits persons to be taxed indefinitely, but limits the taxation of 
property: in either of these cases the question at once arises, 
whether the limitation in the charter is such a restriction as the 
oonstitution intends. Let us suppose, again, that a board of bo- 
pervisors is, by the constitution, authorized to borrow money 
upon the credit of the county for any county purpose, and that it 
is asked to issue bonds in order to purchase stock in some railway 
company which proposes to construct a road across the county ; 
and the proposition is met witii the query. Is this a county pnr> 
pose, and can the issue of bonds be regarded as a borrowing of 
money, within the meaning of the i>eople ss expressed in the con- 
stitution ? And once again : let us suppose that the governor is 
empowered to convene the legislature on extraordinary occasions, 
and be ts requested to do so in order to provide for a class of 
private claims whose holders are urgent ; can this with any pro- 
{triety be deemed an extraordinary occasion 7 

In these and the like cases our constitutions have provided no 
tribunal for the specific duty of solving in advance tbe queBtions 
which arise. In a few ot the States, indeed, the legislative de- 
partment has been empowered by the constitution to call upon 
the courts for their opinion upon the oonstitutional validity of a 



by Google 



68 oosBTTixmasAL luiitatioms. [ch. it. 

proposed law, in order that, if it be adjudged without warrant, 
the legislature may abstain from eoaotiDg it.' But those pro- 
Tinona are not often to be met with, and judicial decisions, espe- 
cially upon delicate and difficult questions of conBtitutional law, 
can seldom be entirely satisfactory when made, as they commonly 
will be under such calls, without the benefit of argument at the 

bar, and of that light upou the questions involved which 
[* 41] might * be afforded by counsel learned in the law, end 

interested in giving them a thorough investigation. 
It follows, therefore, that every department of the government 
and every ofQcial of every department may at any time, when a 
duty is to be performed, be required to pass upon a question of 
constitutional construction.' Sometimes the case will be such 
that the decision when mode 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 ofBcers ; 
but in other cases Uie same question may be required to be passed 
upon again before the duty is completely performed. The first 
of these classes is where, by the constitution, a particular ques- 
tion is plainly addressed to the discretion or judgment of some 
one department or officer, so that the interference of any other 
department or officer, with a view to the substitution of its own 
discretion or jui^ment in the place of that to which the constitu- 
tion has confided the decision, would be impertinent and intru- 
sive. Under every constitution, cases of this description are to 
be met with ; and, though it will sometimes be found difficult to 

' By the constitnlioDi of Maine, New od tlie jndgei for their opinion, thpj mmt 

Hunpahlre.KDd MMMU!hiuetti,thejadgei decide for (hemselrea whether the occm- 

of tbe Saprema Court are required, wlien sion wna lutli na to warrant the governor 

Cktled npon bj the governor, coancil, or in making the call. Opinions of Judge*, 

either hoiiM of the legislature, to give 49 Ho. 216. 

thei^opinioD* " upon important qocttioni * "It ii argned that Uie legialature 

of law, and apon solemn occaaioni." In cannot give a constmction to the consti- 

Plorida the ^Temor, and in Rhode Island tution relative to private right* secoted 

the goreraor or either hooie of the gen- b; it. It ii true that the legiilatare, ia 

eral assembly, may call fbr the opinion* of consequence of their constniciion of (he 

the judges of the Supreme Court upon constitu^on, cannot make laws repugtiant 

anyqueslionoflaw. In Hissonri, previoos to it But every department of govem- 

to the constitution of 1676, the judges ment, invested with certain constitutiotiRl 

were required to give their opinions "upon powers, must, in the first inslance, but 

important qneslioni of constitutional law, not eiclnsively. be the Judge of its pow- 

and upon solemn occasions ; " and the So- en. or it could not act" Partmi, CIi. J., 

preme Court held thai while the (lovemor in Kendall v. Inhabitanta of KlDgiton, 6 

determined for himself whether the occa- Uaa*. ^4, 688. 
■ion wa« tBab a* to antboriie him to call 



by Google 



CH. IV.] OOM8TBD0II0M OF STATE OOMSTITUTIONS. 58 

classify them, there can be do doubt, when tiie case is properly 
determined to be one of this character, that the rule must prevail 
i^ch makes the deoisioii final. 

We will soppoBe, ^ain, that the constitutioti empowers the 
execntive to coDTene the I^^lature on extraordinary occasions, 
ind doea not in terms authorixe the intervention of any one else 
in determining what is and what is not such an occasion in the 
conatitutionsl sense ; it is obvious that the question is addressed 
exclusively to the executive judgment, and neither the legislative 
nor the judicial department can intervene to compel action, if the 
executive decide against it, or to enjoin action if, in his opinion, 
the proper occasion has arisen.' And again, if, by the 
constitution, * laws are to take e£Eeot at a specified time [* 42] 
after their passage, unless the legislature, for urgent 
reasons, shall otherwise order, we must perceive at once that the 
]^;islatui-e alone is competent to paas upon the urgency of the 
alleged reasons.' And to take a judicial instance : If a court is 

> Whitemui n. Railroad Co., 2 Bwr. Hon Impowd Dpoa nilroftd corparRtion* 
(Del.) 614; t-cSS Am. Dec. 411. Id ex- bj the general tailroad law wm s tioU- 
ciciting hia power to call out the mQida tion of the proruion of tho conetitutEon 
in certain exigencic*, the Freildent ii the which enjoin* it upon the legiilalare " to 
eiduiiTB and final jadge when the exi- encourage internal improTementi by pue- 
gencj' haa ariien. Hartln d. Mott, 13 ing liberal general laws of incorporation 
Wheat 10. In People r. FBrker, 3 Nob. tor that purpou." The coen «aj of thia 
m, a. c. IB Am. Rep. 034, it appeared proviiion : " Thii it a coiutitational corn- 
that BD officer aMuming to act m gOTer- mand to the logiBlatore, at obligatory on 
■or In the abeence of the gorenior fl'oni it ai any other of the proTiiiona of that 
the State, had iaaned a pradamation con- initmraent; bnt it U one which cannot 
*ening the letpalatarn in extnordinary be enforced by the courts of Juitice. It 
■eidon. The governor returned preTion* addreiiea itielf to the legEilature atone, 
10 tbe time named fbr the meeting, and and it 1* not for na to lay whether It hai 
iMoed a aecond proclamation, revoking obeyed the beheat in ita true apirit. 
the flrat. Held, that the power of coo- Whether the proTJgiona of this law are 
tming the legialatnre being a diacretion- liberal, and tend to encoange internal 
aiy power, it might be recalled before tlie improTementa, i« matter of opinion, abont 
BeetiDK took place. which men may differ ; and ai we have 
It ia undoubted that, when a caae ii no authority to reviae legtalalire action 
within the legtilatirediacretion, the coarta on theanbject, it would not become n* to 
cannot interfere willi iU exerciae. State ezpreia our riewa in relation to it The 
«. Hitchcock, 1 Kan. 178 ; Sute o. Boone law mnkea no provliion for the conitroo- 
Connty Court, 50 Mo. 817 ; Pattenon o. tionof canal* and turnpike road»,and yet 
Bariow, SO Fenn. St 6*. The itatement they ate aa much internal improvements 
of Icgialatlve reatona in the preamble of aa railroada, and we might aa well be 
an act wiU not affect ita validity. Loth- aaked to extend what we might conaider 
rap a. Steadman, 42 Conn. ESS. the liberal proviaiona of thia law to them, 

■ Bee poU, p. • 167. In Giltinwater a. beeauae tbey are embraced in tlie conati- 

Wadauppi k Atlantic Railroad Co., 18 tntional proTlaion, aa to aak na to diare- 

IlL 1, h waa urged that a certain reatric- gard aach proviilon* (rf it ai wa might 



by Google 



64 ooKSTiTmmiAi. luiiti.iion8. [oh. it. 

required to give an aooosed person s tzial at the firat (eim after 
indictment, uoleBS good cause be ahown for continaanoe, it is 
obviouB that the question of good cause ia one for the court alone 
to paaa upon, and that its judgment when exercised is, and must 
be from the nature of the case, final. And vhen in these or aoj 
similar case the decision ia once made, other departments or other 
officers, whatever may have been their own opinions, must assume 
the decision to be correct, and are not at liberfy to raise any 
question coocemiag it, unless some duty is devolved upon them 
which presents the same question anew. 

But there are eases in which the question of oonstaruction is 
equally addressed to two or more departments of the government, 
and it then becomes important to know whether the decision by 
one is binding upon the others, or whether each is to act upon its 
own judgment. Let us suppose once more that the governor, 

being empowered by the constitution to convene the 
[* 43] * legislature upon extraordinary occasions, has regarded 

a particular event as being such an occasion, and has 
issued his proclamation calling them together with a view to the 
enactment of some particular legislation which the event seems 
to call for, and which he specifies in hia proclamation. Now, the 
legislature are to enact laws upon their own view of necessity 
and expediency ; and they will refuse to pass the dewred statute 
if they regard it as unwise or unimportant. But in so doing they 
indirectly review the governor's decision, especially if, in refusing 
to pass the law, they do so on the ground that the specific event 
was not one calling for action on their part. In such a case it is 
clear that, while the decision of the governor is final so far as to 
require the legislature to meet, it is not fiual in any sense that 
would bind the legislative department to accept and act upon it 
when they enter upon the performance of their duty in the mak- 
ing of laws.^ 

So also there are cases where, after the two houses of the legis- 
lature have passed upon the question, their deci^on is in a certain 

Kgard M lUibenil. The arfnuDent pro- be." It !« dear that conrti eaanot inter- 

ceeds upon the idea that we ihonld cmc fare with m«tten of le^alaltTe difcNtkm. 

■Ider that Bi dona which oaght In be done; Maloj v. Marietta, 11 Ohio 6t. 686. Aa 

bnt that principle hai no application here, to telf-execulmK provialotu in general, eea 

Like law! upon other lubjecti within ieg- pnt, p. *SB. 

Illative jariidiotion. It ii for the conrti to > Bee Opinloni of Judge*, 49 Ho. 21S. 
M7 What the la« U, not wbu II abonld 



by Google 



OH. IT.] OOHSTBnOTIOS OF STATE OOS8TITOT10N8. 55 

aetise subject to review by the ^vemor. If a bill is introduced 
the constitutioDalit; of which is disputed, the passage of the bill 
by the two houses must be regarded as the expression of their 
jodgment that, if approved, it will be a valid law. But if the 
OODStitutioD confers upou the governor a veto power, the same 
qaestioD of constitutional authority will be brought by the bill 
before htm, since it is manifestly his duty to withhold approval 
&oni any bill which, in bis opinion, the legislature ought not for 
any reason to pass. And what reason so forcible as that the con- 
stitution confers upon them no authority to enact it ? In all 
these and the like cases, each department must act upon its own 
judgment, and cannot be required to do that which it regards as 
a violation of the constitution, ou the ground solely that another 
department which, in the course of the discharge of ito own duty, 
was called upon first to act, has reached the ooaclusion that it 
vrill not be violated by the proposed action. 

But setting aside now those cases to which we have referred, 
where from the nature of things, and perhaps from explicit 
terms of the constitution, the judgment of the department or 
officer acting must be final, we shall find the general rule to 
be, that whenever action is tuken which may become the sub- 
ject of a suit or proceeding in court, any question of constitu- 
tional power or right that was involved iu such action 
will be *open for consideration in (iuch suit or proceed- [* 44] 
iog, and that as the courts must finally settle the particu- 
lar controversy, so also will they finally determine the question 
of constitutional law. 

For the constitution of the State is higher in authority than any 
law, direction, or order made by any body or any officer assuming 
to act under it, unce 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 in conflict 
with it must be treated as of no legal validity. But no mode 
has yet been devised by which these questions of conflict are to 
be discussed and settled as abstract questions, and their determi- 
nation is necessary or practicable only when public or private 
rights would be affected thereby. They then become the subject 
of legal controversy ; and legal controverues must be settled by 



by Google 



66 00N8TITDT10NAL LIMITATIONS. [OH. IT. 

the courts.' The courto have thus dflvolved upon them the 
duty to pass upon the conBtitutional validitj, Bometimes of legis- 
lative, and sometimes of executive acts. And aa judicial tribu- 
nals have authority, not only to judge, but also to enforce their 
judgments, the result of a decieion against the constitutionality 
of a legislative or executive act will be to render it invalid throi^h 
the enforcement of the paramount law in the controversy which 

has i-aised the question.^ 
[* 45] * The same conclusion is reached by stating in consec- 
utive oi-der a few familiar, maxima of the law. The 
administration of public justice is referred to the courts. To per- 
form this duty, the first requisite is to ascertain the facts, and the 
next to determine the law applicable to such facts. The consti- 
tution is the fundamental law of the State, in opposition to which 
any other law, or any direction or order, must be inoperative and 

1 GoTernor v. Porter, G Humph. 165. ute duwdw, according to tlie principle of 

Tlie legitlatnre cannot by atatnte define the tapretnacy o( the law and the depend- 

the worda of the conatitotion for the ence of juatioa. It 1* one of the moat in- 

courta. Weitinghanaen . i>. People. 44 tereating and important eTolationa of the 

Mich. S66. Compare People v. Seper- government of law, and one of the great- 

liaora of La Salie, 100 m. 495. And tee eatprotectlonaof thedtiEen. Itmaywell 

/Mat, * 94, note. be called a rer; jewel of Anglican lihertj', 

* " When laws conflict in actunl caaea, and one of the t>est fruila of our political 

tliey [tlie courta] muat dedde which la idTillzation." Ueber, Civil libertj and 

the auperior law, and which muat yield; Self -Government. 

and aa we hare aeen that, according to " Whenever a law which the Judge 
OUT princi[dea, every offlcer remaina an- bolda to be nnconalitntlonal ia argued in 
awerable for what he officially doe*, a atribnnalof the United State*, be may re- 
dUten, belieTing that the law heenforce* Aiae to admit iiuarule; thia power ia the 
ia incompatibJe with the auperior law, tlie only one nliicli ia peculiar to the Ameri- 
conatitution, limply *uea the officer beFore can mngiatrale, but it givea riae to im- 
the proper coort aa having unlawfully menie pohtJcal influence. Few lawa can 
aggrieved him in the particular caae. eacape the learching analyaia ; for there 
Tlie conrt, bound to do juilice to every are few which are not prejudicial to aome 
one, ii bound alao to decide thia caae aa a private inlereat or other, and none which 
ilmple case of conflicting law*. The may not be brought before a court of Jut- 
court doea not decide directly apon the tice by the choice of partiea, or by the 
doing* of the legialature. It aimply de- neceaaity of the caae. But from the time 
ddea for the caae in hand, whether there that a judge haa refoaed to apply any 
actually are conflicting lawa, and, if ao, given law in a caae, that law loaea a par- 
whlch ia the higher law that demanda tion of ita moral aanction. Ttte peraona 
obedience, when both may not be obeyed to whoae intereat It ia prejudicial learn 
at the iRine time. Aa, however, thii de- thatmeanieiiatforevadingftaauthority; 
ciaionbecomea the leading dedaion for all and aimilar aulta are multiplied until it 
future caae* of the aame import, until, in- becomee powerleaa. One of two altema- 
deed, proper and legitimate authority tive* muat then be reaorted to, — tbe 
ahonld rererte it, tlie queatinn of consti- people ratut alter the congtiiution, or the 
tntionality ia virtaelly decided, and it ia legislature muat repeal the law." De 
decided in a natural, eaay, li^gitimaie and Tocqueville, Democracy in America, c. 6. 



by Google 



CH. IT.} C»H8TEU0TI0N OF STATE CONSTITUTIONS. 67 

void. If, therefore, Buch other law, direction, or order eeems to 
be applicable to the facta, but on comparison -with the funda* 
mental law the latter is found to be in conflict with it, the court, 
in declaring what the law of the case is, must necessarily deter- 
mine its invalidity, and thereby in effect annul it' The rigitt 
and the power of the courte to do this are so plain, 
• and the doty is bo generally — we may almost say uni- [• 46] 
versally — conceded, that we ebould not be justilied in 
wearying the patience of the reader in quoting from the very 
nomeiODs authorities upon the eubject.' 

' "It it idle la m; that tht attthoritf moctnobleandthemeancatof Ma vorki." 

of emch braouli of the gaTernmeDt U de- Balei e. Kimball, 2 Chip. 77. See Baitej 

•Ded ud limited by the conitltation, if n. Geatrf, 1 Mo. 104 ; s, c. 13 Am. D»e. 

tliere be not an iodeprndent power able 484. 

and wilting to enforce the limitatiana. " Without the limitatlona and reatrainU 

Experience proTta that the conititntlan nanallj fotitid In written conalilDtirau, the 

ie thonghtiml; bnt haldlualij violated j goremment coald hare no elementa of 

and the laeriflce ol indiviiloiu righi* ii permanence and darabiiity ; and the dia- 

too remotel; connected with tlie ol^ecta tribntion of ita powera, and. ttie veating 

and oooteati of tlie maaaea to attract their their ezerclie in aeparate department*, 

atlentloa. From ita tbtj poaition it U would be an idle ceremony." Brointi, J., 

apparent that the conaerTatiTs power it in People r. Draper, 16 K. Y. 6S2, 568. 

lodged in the Jndiciary. wliich, in the ax- * 1 Kent, £00-607 : Marbuiy d. Madi- 

wciee of it* nndoubted righta, 1* bonnd ion, 1 Cranch, 1S7 ; Webater on the Inde- 

lo meet any emergency ; elte caoaei would pendence of the Judiciary, Workt, vol. 

b* dedded, not only by the iegialatnre, Ul. p. 20. In thia apeecli, Mr. Webster 

bat Bomctimee without hearing or eri- haa forcibly aet forth the necesiity of 

deuce." Per GSaan, Cb. J., in De Cliat- leaving with the conrta the power to eo- 

MlDx r. PaiKhild, 16 Fenn. St. 18. forte coDStitatianal reatrictlona. " It cai>. 

"Mot will tliia OMicluaion, to oae the not be denied," taya lie, " that one great 

laBgnage of one of oar moet eminent otqect of written conttitnlion* la, to keep 

j«riate aad atateamen, by any meana anp- the departmeata of government ai diitinut 

pOM a eoperiority of the Judicial to the at poaiible ; and tor thit purpote to im- 

lefialatiTe power. It will only be tap- poee rettrainit deaigned to have that ef- 

poMiig tiMt tlM power of the people it ted. And it ia equally true that there it 

•■parier to both ; and that where ttie will no department od which it it more necee- 

of Ifaa legiaiatnte, declared in il* itatntaa, tary to impoie reitrainti tiian upon tlie 

atanda ia oppoaition la that declared by legiaiature. The tendency of thioga it 

the people in the conttitntion, the jud^a altnott alvaya to augment the power of 

ODgbt lo be governed by the latter rather that department in lit relation to the judi- 

than Ibe fanner. They ought to regulate ciary. The Judiciary ia compoaed of few 

Ihair dedaioDi by the fnadaineiitBl lawi pertotu, and thoae not tuch ai mix habit- 

nubef iban by thoae which are not fun- oally in the purauita and otgecta which 

damaotal. Neither would we, hi doing mott engage pnlilic men. They are oat, 

tbia, ba Daderalood aa Impugning the or never thouid be, political men. Tbey 

boOMtiaieiilioiit, or tacred regard to Jut- have often unpleasant dutiea to perform. 

He*, wbich we moat cheerfully accord to and their conduct ia often liable lo l>e can. 

the Ifgielatnrr Bat to be alioTe error It vatted and oeiuored where their reatont 

to pouMte an Mitire attribnte of tha for it are not known or cannot t>e under- 

Deity; aad to (pDm ita correction ia lo atood. The le^latnre holda the public 

Kdaee to the aame d^raded level tba puree. It &saa the compeuaatkHi of all 



by Google 



OOMSIITCTIONAL LUUTATIOMB. [OH. VT, 



[• 47] • Conclunveneta ({f Judicial Decitiont. 

But a question which has arisen and been passed upon id one 
case may arise i^in in another, or it may present itself imdei 
different circumstances for the decision of some other department 
or o£Scer of the goTerumeot. It therefore becomes of the high- 
est importance to knov whether a principle once authoritatively 
declared is to be regarded as concluHively settled for the guidance, 
not only of the court declaring it, but of all courts and all depu^ 
ments of tiie government ; or whether, on the other hand, the 
decision settles the particular controversy only, so that a different 
decision may be possible, or, considering the diversity of human 
judgments, even probable, whenever in any new controversy other 
tribunals may be required to examine and decide upon the same 
question. 

In some cases and for some purposes the conclusiveness of a 
judicial determinatian is, beyond question, final and absolute. A 
decision once made in a particular controversy, by the highest 
court empowered to pass upon it, is conclusive upon the parties 
to the litigation and their privies, and they are not allowed after- 
wards to revive the controversy in a new proceeding for tlid pur- 
pose of raising the same or any other qnestions. The matter in 

other departmenti ; It appllM u veil u mtmitoTf or adrlMiy onlj, not l^all; 

niaei all rerenne. It it » nnmenini binding; b«cauu if tlie conttractlon of it 

body, and neceiuril^ c&rriei along with tmU wholly with them, tlieir discretion, 

it & great forue of puUlc opinion. Iti in particular cuei, maj be lo fkTor of 

inembera are public men, In ooDitsnt con- Tory erroneoai and dangerona conitruo- 

tact with one another and with their con- tioni. Hencs the conru of law, necet- 

stituenti. It wouid teem lo be plain aarily, when the caie ariHs, moil decide 

enough that, without conttitntlonal pro- on the Talidlt; of particular acta." 

viatoni which should be fixed and certain, " Without thii check, no certain limlt*- 

•nch a department, in caw of exdtemeni, tion could exist on the exerdM of legiala- 

would be alile lo enuroaeh on the judi- live power." See also, as to the dangers 

clary." "The constilutlon being the of iegislattte encroachments, De Tocqne- 

supreme law, it follow*, of conrse, that Ttlle, Democracy in America, c. 0. ; Story 

every act of the legislature contrary to on Const. (4th ed.) % 662 and now. Tlie 

tliat law must l>e void, But who thaU le^lature, thou){h possessing a larger 

decide this qaeitJonI Shall the legiila- share of power, no more represents the 

tare ItMlf decide it f If so, then the con- soTereigntj of the people than either ol 

stllutionceases to be a legal, and becomes the other department*; it derives Itl 

only a moral, restraint upon tlie legltla- authority IWim the same high sourae. 

tnre. If they, and tliey only, are to judge Bailey t>. Fhiladeli^ia, Ac. Railroad Co., 

whether their acts be conformable to the 4 Harr. 889; Whittington >. Polk. 1 H. 

ooHtitution, then the conatitatiou it a^ 4J.236i MoCaakyn. Brooks, 16 CaL 11. 



by Google 



CH. IT.] CONBTBUCnON OF STATE 00N8T1TDTIONS. 59 

dispute has become ret Judicata ; a thing definitely gettled by 
jadicial decision ; and the judgment of the court imports absolute 
Terity. Whatever the question involved, — whether the inter- 
pretation of a private contract, the l^ality of an individual act, 
or the validity of a legislative enactment, — the rule of finality is 
the same. The controversy has been adjudged ; and, once finally 
passed upon, it is never to be renevred.^ It must frequently 
happen, therefore, Uiat a question of constitutional law vrill be 
decided in a private litigatioii, aod the parties to the controversy, 
and all others subsequently acquiring rights under them, in the 
Subject-matter of the suit, will thereby become absolutely and for- 
ever precluded from renewing the questioii in respect to the mat- 
ter then invdved. The rule of conclusiveness to this 
extent is one of the most inflexible principles * of the [* 48] 
law ; insomuch that even if it were subsequently held by 
the courts that the decision in the particular case was erroneous, 

' DocbcM of Kingttoi)'* Cue, 11 State 12 lowi, 86B ; Whituker v. Johnson Co., 

Triali, 261 ; h. a. B Smith, Lead. Cu. 13 lowft, e9G ; Dwj'er u. Goran, 39 Iowa, 

421: Toimg c. Black, 7 Cnnch, Cd6; 126; Fairfield v. UcNany, 8T Iowa, TG; 

Oiapmao ti. Smith, 16 How. 114 ; Aurora Eimer v. Ricliardg. 26 III 289 ; Weil* v. 

City V. Weat, 7 Wall. 82 ; Tioga R. R McCtenning, 28 111. 409 ; Crow v. Bowlby, 

Co. V. BloBtburg, && R. R. Co., 30 Wall. 08 111. 38 ; Peay v. Duncan, 90 Ark. 86 ; 

IXJ; The Rio Qrande, 23 Wall, 45B; Perrine f. Serrell, 30 N. J. 454 ; W«berc. 

SkekUng ■>. Whitney, 3 Weod-IM; Eth- Morria, &c., 36N. J. 21S; Fiachli v. Cow- 

«rBdge V. Oabom, IS Wend. 899; Hayei an, 1 Blackf. 850; Denny v. Reynolda,a4 

w. Recae, 84 Barb. 161 ; Hyatt v. Batea, Ind. 248 ; Bates u. Spooner, 45 Ind, 480; 

SG Barb. 806 ; Hairii c. Harria, SG Barb. Davenport v. Burnett, 51 Ind, S29 ; War- 

88 ; Maddox v. Qnhain, 2 Met. (Ky.) 66 ; wick b. Underwood, S Head, 2SB ; Jonee 

Porter D. BUI, 9 Uaaa. 84; Norton v. v. Weatherabee, 4 Strob. 60 j Roorer i>. 

Dobarty, 8 Qray, 872 ; Tharaton v. Mitchell, 26 Qiall. 367 ; Hungerfbrd'i Ap- 

Tliaraton, 9B Maaa. 89 ; Way v. Lewia, peal, 41 Conn, S22 ; Union H. K Co. ». 

116 lUaa. 28; Blackinton v. Blackhilan, Traube, G9 Ma 866; Perry v. Lewia, 49 

118 Uaaa. 281 ; Witmer *. Schlatter, 16 Hiaa. 448 ; Harria «. Colqnit. 44 Ga. 

8. 4 R. 160 ; Warner r. Scott, 39 Penn. 068 ; McCauley e. HargroTea. 48 Oa. 60 ; 

St S74; Vamer v. Carton, 86 Penn. b. c. 16 Am. Rep. 660; CaatalUw r. Onil- 

Bt. 440 ; Karr d. Union Bank, 18 Md. martin, 64 Ga. 200 ; Sloan r. Cooper, 64 

•06; Wbitehnrat v. Rogera, 88 Md. 608; Oa.486; Doyle p. Hallani, 21 Minn. 

Waleav. Lyon, 2 Mich. Z7Sj Pr«Dtiaa *. 616; PlilUpotU b. Blaadel, 10 NeT. 19; 

Holbrook, 2 Mich. 872; Van EJeek Caae k. New Orleana, ftc. R. R., 2 Wooda, 

>. Eggfeaton, 7 Mich. 611; Newberry*. 386; Oeory e. Simmons, 39 Cal. 224; Om 

Trowbridge, 18 Mich. 278; BaAer v. e. Williamson, 1 Fort. (Ata.) 313; a. o. 

Clerdaml, 10 Micti. 230; Winalow v. 37 Am. Dec 628; Cannon c. Brame, 45 

Orindall, 2 He. 64 ; Slade v. Blade, Ata. 26S ; Finney t>. Boyd. 26 Wis. 866 ; 

68 Me. 167 ; Cranciall t. Janiea. 6 R. L Wamer v. Trow. S6 Wia. 105 ; Ram on 

144; B^icock tr. Camp, 12 Ohio St. 11; Legal Judgment, c. 14. A judgment, 

Bawkioa r. Jones, 19 Ohio St. 22 ; George however, la concloaiTe as an eatoppet at 

V. Qilleapie, 1 Greene (Iowa), 431; Tay- to thoee Acta only without the eziateoee 

lor r. Cbanliert, I Iowa, 124; Wright*, and proof of which itoonid not liara been 

Ledair, 8 lows, 321 ; Ckik >. SwDinoiis, nnderad ; uid if it might have been 



by Google 



60 CONSTITUTIONAL LOHTATIOKB. [CH. IV. 

such holding would not authorize the reopening of the old con- 
ifers; in order that the final concluBion might be applied 
thereto.* 

But if important principles of constitutional law can be thus 
disposed of in suits involving only private rights, and when pri- 
vate individuals and their counsel alone are heard, it becomes of 
interest to know bow t&r, if at all, other individuals and the pub- 
lic at large are affected by the decision. And here it will be dis- 
covered that quite a different rule prevails, and that a judicial 
decision has no such force of absolute conclusiveness as to other 
parties as it is allowed to possess between the parties to the liti- 
gation in which the decision has been made, and those who have 
succeeded to their rights. 

A party is concluded by a judgment against him from disput- 
ing its correctness, so far as the point directly involved in the case 
was concerned, whether the reasons upon which it was based were 
sound or not, and even if no reasons were given therefor. And 
if the parties themselves are concluded, so also should be all those 
who, since the decision, claim to have acquired interests in the 
subject-matter of the judgment &om or under the parties, as per- 
sonal representatives, heirs-at-law, donees, or purchasers, and who 
are therefore considered in the law as privies.' But if strangers 
who have no interest in that subject-matter are to be in like man- 
ner concluded, because their controversies are supposed to involve 
the same question of law, we shall not only be forced into a series 
of endless inquiries, often resulting in little satisfaction, in order 

given on taij one of lerenl gronndi, ft Hart v. Jewett, 11 Iowa, 2T0 ; Colbum «. 
ii concliuire between Eh« parties u to Woodworth, 81 Barb. 881 ; Newberry >. 
neilber of them. Lea v. Lea, 90 Uim. Trowbridge, IS Micli. 276 ; Skeldia d. 
493. And ■«« Dicklnion b. HayeB, 31 Whitney, 3 Wend. 164 ; Brockway v. Kin- 
Conn. 417; ChnKh v. Chapin. 36 Vt. oey, 2 Johns. 210; Plainer v. Beit, U 
223 ; Packet Co. v. Sickle*, 6 Wall. 680 ; Johni, 630 ; Phillip* v. Berick, 16 Johni. 
Spencer v. Dearth, 43 Vt. OS ; Hill r. ISd ; Page c. Fowter, 37 Cal. 100, 
MoT«e.61 He. 641. A Judicial lale by an * Tlie queition whether a judgment, 
administrator will pan title thongli the by force of iu recilali, shall operate as • 
■uppo*ed Inteilale prorea to be ItTlng. technical eatoppel, or wliether it shall 
Roderigat c SavinKi Inititution, 63 N. Y. operate as a bar only after the proper 
460; a. c, 20 Am. Rep. 666; amira, Johti- parol evidence shall have been giteo to 
■on v. Beuley. Gfi Mo. 2fiO; a. o. 27 Am. identify the subject of litiga^on, ia one 
Rep. 286, and note. which onr subject doe* not require us to 
1 McLean r. Hugnrin, 18 Johns. 184; dlscuis. The cases are examined fully 
Morgan t>. Plumb, 9 Wend. SS? ; Wilder and with discrimiDation in Robinson's 
e. Case, 16 Wend. 683 : Baker v. Rand, 18 Pimctice, Vol. VL ; and ar« alM> diicuiwd 
Rarb. 162 ; KeUey v. Pike, 6 Cnth. 484 ; In Bigeluw on Eatoppel. 



by Google 



C^ IV.] CONSTBDOTION OF 8TATK OONBTTTnTIOKS. 61 

to ascertain whether the question is Uie same, but we shall also 
be met by the query, whether we are not concluditig parties by de- 
cisions which othere have obtained in fictitious controversies and 
by collusion, or have Buffered to pass without Bufficientoonsideration 
and discussion, and which might perhaps have been given other- 
wise had other parties had an opportunity of being beard. 

• We have already seen that the force of a judgment [• 49] 
does not depend upon the leaeona given therefor, or upon 

^e 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, though somewhat similar in its facts, 
and apparently resembling it in its legal bearings, grave doubts 
might arise whether it ought to fall within the same general prin- 
ciple. If one judgment were absolutely to conclude the parties 
to any similar controversy, we ought at least to be able to look 
into the judicial mind, in order that we might ascertain of a surety 
that all those facta which should influence the questions of law 
were substantially the same in each, and we ought also to be able 
to see that the first litigatioQ was conducted in entire good faith, 
and that every consideration was presented to the court which 
could properly have weight in the construction and application of 
die law. All these things, however, are manifestly impossible ; 
tad the law therefore wisely excludes judgments from being used 
to the prejudice of strangers to the controversy, and restricts their 
conclusiveness to the parties thereto and their privies.' Even 
parties and privies are bound only so far as regards the subject- 
matter then involved, and would be at liberty to raise the same 
questions anew in a distinct controversy affecting some distinct 
SQbjeot-matter.' 
All judgments, however, are supposed to apply the existing 

* Bmrill r. Weat, 3 N. H. 190 ; BsrU Minttej, 6 Rich. S61 ; Rl^nt'i Es'ra v. 
•. Wood, 1 Wheat. «; Jukwn v. Vedder, Brown, 12 Oca 271 ; Peraoni e. Jonet, 12 
t Johni. 8: Cise v. Ree*e, li Jolmi. 79; Geo. STl ; Bobjntnn'B Prnclice, Vol. VII. 
Alexander D. Taylor, 4 Dento, 302; Van 134 to 158; Bigelow on Estoppel, 46 tt 
Bokkeliiir.InKerM>U,5WeDd.81G; Smith teg. 

9. Ballant;ne, 10 Paige, 101 ; Orphan > Vaa Alitine v Railroad Co., 84 Barb. 

HooM B. I^wrence, 11 Paige, 80 ; Thoouu 28 ; Taylor v. McCrnckln, 2 Blackf. 260 ; 

*.Babbell,15N. T.40G; Wood v. Stephen, Cook e. Viniont, 6 T. B. Monr. 284. See, 

1 Seis- fr R' n^; Peterton b. Lothrop, 84 for a dliciuiian of thii doclrine, ila mean- 

Fcfm. St. 223; Twambly v. Beulej, 4 ing and extent, Spencer k. Dearth, 43 Vt. 

Mali. 441 ; Eale b. Strong, 2 Ohio, 402; 98, and the very full and eihanttive dti- 

Cowlu V. Harti, 8 Conn. 616; Floyd v. cnaaion in Robinaoa's Practice, Vol. VII. 



by Google 



62 OONSTITDTIOHAL LIMITATIOBS. [CH. IV. 

law to the fftots of the caae ; and the reasona which are Boffioient 
to influence the court to a particular conclusion in one case ought 
to be sufficient to bring it or any other court to the eame concln- 
Bion in all other like cases where no modification of the law has 
intervened. There would thus be anifonn rules for the adminis- 
tration of justice, and the same measure that ia meted 
[• 60j out * to one would be received by all others. And even 
if the same or any other conrt, in a subsequent case, 
should be In donbt concerning the correctness of the decision 
which has been made, there are consequences of a very grave 
character to be contemplated and weighed before the experiment 
of disregarding it should be ventured upon. That state of things, 
when judicial decisions conflict, so that a citizen is always at a 
loss in regard to his rights and his duties, is a very serious evil ; 
and the alternative of accepting adjudged cases as precedents in 
future controversies resting upon analogous facts, and brought 
within the same reasons, is obviously preferable. Precedents, 
therefore, become important, and counsel are allowed and ex- 
pected to call the attention of the court to them, not as conclud- 
ing controversies, but as guides to the judicial mind. Chancellor 
Kent says : " A solemn decision npon a point of law arising in 
any given case becomes an authority in a like case, because it is 
the highest evidence which we can have of the law applicable 
to the subject, and the judges are bound to follow that decision 
so long as it stands unreversed, unless it can be shown that the 
law was misunderstood or misapplied in that particular caae. If 
a decision has been made npon solemn argument and mature de- 
liberation, the presumption ia in favor of its correctness, and the 
community have a right to regard it as a just declaration or ex- 
position of the law, and to regulate their actions and contracts 
by it. It would therefore be extremely inconvenient to the pub- 
lic if precedents were not duly regarded, and implicitly followed. 
It is by the notoriety and stability of such rules that profesedonal 
men can give safe advice to those who consult them, and people 
in general can venture to buy and trust, and to deal with each 
other. If judicial decisions were to be lightly disregarded, we 
should disturb and unsettle the great landmarks of property. 
When a rule has once been deliberately adopted and declared, it 
ought not to be disturbed unless by a court of appeal or review, 
and never by the same court, except for very urgent reasons, and 



by Google 



OH. IT.] CON8TEUCTION OP BTATB COHSTITUTIONS. 68 

upon a clear manifestati^m of error ; and if the practice were 
otherwise, it would be leaving hb in a perplexing uncertaintj as 
to the law." ' 

■ 1 Emt, 476. And lee Cro. Jac. 627 ; the point again In contrOTen;, fonniog 
ItexD. Cox, 2 Burr. 787; Kingn. Younger, a complete RcqaieBcence, would be, at the 
fi T. R. 4fiO ; Ooodtitle ». Otwaj, 7 T. R. lestt, incontiBtent, perliapt miicbieTooa, 
410 ; Selby e. Birdooi, 3 B. & Ad. 17 ; and uncalled for bj a coirect diicharge of 
Fleieher v. Lord Somert, S Bing. 688 ; official duty. Much respect tiM alwaj* 
Ramnond v. Andenon, 4 Boa. 4 F. 69 ; been paid to the conlemporaneouB con- 
Lflwiaa^ Thornton, 6MunC1M; Dugan s. ttmctioD of ttaUitei, and a forbidding 
Hollini, 13 Md. 149; Andenon c Jatk- caution hath alwaj's accompanied any ap- 
toa, IS Johoa. 382 ; Goodell b. Jackion, proacii towarda unsettling it, dictated, no 
90 Johna. 698 ; Bates c. Releyca, 23 Wend, doubt, by easily foreseen cooseqneoce* 
S36 ; Emerson n. Atwater. 7 Micti. 12 ; attending a sudden change of a rule of 
Kdson V. Allen. 1 Terg. 860; Paimer d. property, necessarily introductory at least 
lAwrence, 5 N, Y. 869 ; Kneeland n. Mil- of confusion, increased litigation, and the 
wankce, 16 Wis. 461; Boon v. Bowera, disturbance of the peace irf lodety. The 
SOUisa. 246; Frink n. Darst, 14111. 301; most able judges and the greatest names 
Broom's Maxims, 109. Dr. Lieber thinks on tlie bench have held this view of the 
the doctrine of the precedent especially snbjeet, and occasionally eipreased them- 
Tilnable In a ftee coantt?. " Liberty and seWes to that efiect, either tacitly or open- 
steady progression require the principle ly, iatlmaUng that If they bad held a 
•f the precedent In all spheres. It is one part in the flnt coniiruction they would 
of the roots with which the tree of liberty have been of a different opinion : but tiM 
bsieos in the soil of real life, and tlirongh construction haring been made, tliey give 
which It receives the sap of fresh exis^ their assent thereto. Thus Lord EUm- 
CBce. It is tlie weapon by which inter- banmgti, in 2 East, 802, remarks : ' I thiuli 
fnence is warded off. The principle of it is better to abide by that detennina- 
the precedent is emineotty phiEosophical. tion, than to introduce uncertainty into 
Tbe English Constitution would not hare this bianch of the law, it being often more 
fcrdoped Itself without it Wbatis called important to hare tlie rule settled, than 
the English Constitution consists of the to determine what it shall be. I am not, 
fluidaineDtats of Uie British polity, laid howerer, conrinced by the reasoning in 
dswn in eastom, precedent, decisions, and this case, and if the point were new I 
aUtatea; and the common law in it is a should think otherwise.' Lord MaMjUd, 
tu Kt««ter portion than the statute Jaw. in 1 Rurr. 410. lays ; ' Where solemn de- 
Tke Eagllsh Constitution is chiefly a com- terminations acquiesced under had settled 
■aoo-Uw constitution; and this reflex of precise cases, and a rule of property, they 
« coatinoous society in a continuous law ought, for the sake of certainty, to be ob- 
is more truly philosophical than tbe tbeo- aerved, as if they had originally formed a 
tetic and systematic, bnt lifelet*, const!- part ofthe text of the atatnie.' And Sir 
tatioos of recent France." Civ. Lib. and Jama Uan^td. in 4 B. & P. 6^, says : 
SelfGov. See also his chapter on prece- 'I do not know how to distinguish this 
denta in the Hertneneutics. In Nelson v. Irom the case before decided in the court 
Alien,) Yerg.360,376,whei« theconstitu- It is of greater conseque 
tionality of the " Betterment Law " came should be as uniform i 
KidcT consideration, the court ( White, J.) that the eqnltaUe claim 
say : " Whale»er might be my own opiit- ahould be attended to.' " And ree People 
loD upon tills qoeslioQ, not to assent to d. Cicotte, 16 Mich. 2S.S. 
its eetilement now, sfier two solemn deci- How Or a Judgment rendered by a 
tioiia of this oonrt, the last made upwards court concludes, notwithstanding it was 
of fonrteen years ago, and not only do one given nnder the law of neccHlly, It) 
opposing decbion, but do attempt even consequence of an equal difisiou i^ the 
by any case, during all this tiow, to call court, se« Dnraat n. Esses Co., 7 Wall. 



by Google 



64 CONBTITQTIONAI. LIHITATIONB. [CH. IT. 

[* 51] * The doctrine of Uare deciaii, hovever, is on\y applies' 
ble, in its full force, within the territorial juriBdiction of 
[* 52] the courts making * the decisions, since there alone can 
8ucb deoisiona be regarded as having established any rules. 
Rulings made under a similar legal system elsewhere may be 
cited and respected for their reasons, but are not necessarily to 
be accepted as guides, except in so far as those reasons commend 
themselves to the judicial mind.' Great Britain and the thirteen 
original States bad each substantially the 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 ia 
certainly 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 ua the opinions of able judges as to what the law is, but 
lis foree as an authoritative declaration must be confined to the 
country for which the court sits and judges. But an English de- 
cision before the Revolution is in the direct line of authority ; and 
where a particular statute or clause of the constitution has been 
adopted in one State from the statutes or constitution of another, 
after a judicial construction has been given it in euch last-men* 
tioned State, it is but just to regard the construction as having been 
adopted, as well as the words ; and all the mischiefs of disregarding 
precedents would follow as legitimately here as in any other case ,• 

107 ; B. a. 101 U. S. 666 ; Hutman ■>. Oreen- 28 Mich. SS ; HanliOQ v. Siger, 2T Hidi. 

boT, 102 U. 8. 672; Mone v. Ooold, 11 470; Pugborn v. We«tUk«, 86 Iowa, 

N. r.281; Lyon v. Circuit Judge, ar Mich. 548; Attorney -Oeneml b. Bmnit, 8 Wn. 

877 ; and the cuea collected in Norlhera 7S7 ; Poertner p. Rn»ell, S8 Wit. IBS ; 

R. R. V. Concord H. R., 50 N. H. ITS. Myrick t. Huey, 27 Me. S j People p. 

1 Cald«ellr.GK]e, llMicli.77; Koonti ColemBn, 4 Cat, 46; Bemii v. Becker, 1 

B. Nabb, IS Md. 649 ; Nelson d. Goree, 34 Kan, 220 ; Walker tr. ancinnati, 21 Ohio 

Ala. 666; JamUnnc. Burton, 48 Iowa, 382. St. 14; Het* o. Pegg, 7 Nev. 28; Pieese 

' Bond D. Appleton, S Mmi. 472; Rul- v. Tripp, 70 III. 496; In n Toiler, 79 111. 

land e. Mendon, 1 Pick. 164 ; Common- 09 ; Ex parte Mathewi, 62 Ala. 61 ; Dan. 

wealth p. Hartnett, 3 Gray, 460; Turn- ville v. Pace, 26 GratL 1; Bradbmj 

I^ke Co. V. People. 9 Barb. 167 ; Campbell Davii, 6 CoL 2S6. But it doei not n<x* 

D. Quinlin, 4 III. 288 ; Little d. Smith, larilj follow that the prior deeigion cc 

6 III. 400; Rigg c, Witton, 13 III. 16; atraing the law tniut be infleziU.r tol- 

Tjlerv. Tyler, 19 111. 151; Piahem.Deei^ lowed, lines the circumatances in the 

ing, 60 111. 114; Langdon v. Applegate, 6 Stale adnpting it may be ao dififercnt aa 

Ind. 327 ; Clark t>. JeSeraonTille, ftc. R. B. to require u different conBtruction. Little 

Co., 44 Ind. 248 ; Fall v. Hazelrigg, 45 Ind. v. Smith, 6 Hi. 400 ; Lenee of Gray e. 

676 ; Ingraliam v. Regan, 28 MiM. 218 ; Aakew, 3 Ohio, 46A ; Jamlaon v. Burton, 

Adama r. Field, 21 Vt. 256 ; Drennan v. 43 Iow«, S82. It hai very properly beeu 

People, 10 Mich. ISO; Daniel* r. Clegg, held that tb« leglalature, by enacting, 



by Google 



CH. IT.] COKSTBTTOnON OF BTATB OOlTSTIItTTIONS. S6 

It will of course BOmetimes happen that a court will find a 
former decision bo unfounded in law, bO unreasonable in its deduc- 
done, oc BO mischieyouB in its conseqnenceB, as to feel oompelled 
to disregard it. Before doing so, however, it will be well to con- 
rider whether the point iuTolved is such as to have become a 
rale of property, so that titles have been acquired in reliance 
upon it, and vested rights will be disturbed by any change ; for in 
anch a case it may be better that the correctioD of the error 
be left to the legislature, which can control its action so * as [' 53} 
to make it prospective only, and thus prevent unjust con- 
sequences.^ 

Whenever t^e case is such that judicial decisions which have 
been made are to be accepted as law, and followed by the courts 
in future cases, it is equally to be expected that they will be fol- 

wltlioDt mmteiul alMntion, a atatnte the remit lo long eatabtlilwd. Batvhen 

■bicb had been jadiciallj' eipoimded by it !■ apparentl; iadiflerent which of two 

the highest coart of the State, must be or more nilei ii adopted, the one which 

preaamrd to hare iDtended that the aanie iball hare been adi^led hjr judicial lanc- 

worde (hould be receired in the new itat- tion will be adhered to, thougli It mar 

mte ia the eenie which had been altrib- not, at the moment, appear to be the 

Bted to them In the old. Grace v. McEl- preferable rtile. But when a qnestion in- 

niT, 1 Alleo, 6eS; Cronao n. Cotting, 101 tolTing important public or private 

Mbm. ZK; Low r. Blanchard, IIS Haaa. right*, extending thron)(h all coining 

272. It ia alwBjTB proper to accept and time, baa been poued upon on a single 

follow the dedaioDB of eonrte of another occaalon, and which dedsion can Id no 

StUe npoQ the construction and TtUldit; just aenie be said to have bm>n acqui- 

of their own atatates. Sidwell n. Evans, eH»d In, it li not only the right, but the 

1 Pen. ft W. 388 ; s. c. 21 Am. Dec. 887 ; duly, of the coort, when properly called 

Bankof niinoisr. Sloo, IS La. &8S; B.O. npon, to t&«xamine tlie qoeition* in- 

S5 Am. Dec. 228. volved, and again subject them to 

' "After an erroneoni decision tooch- judicial icraCinj. We are by no means 

lag rtgfaU of property ha* been followed unmindful of the salucary tendency of 

thirty or forty yean, and even a much the rule itan decmi, but at the same 

len time, the court* cannot retnun time we cannot he nnmindfhl of tlw les- 

Iheir step* without committing a new aon* furnished by onr own coaiciousness, 

eiTOT nearly as great a* the <nie at the aa well as by Judicial history, of the li>- 

flr*t." £r(<nMn.J.,inSpeiTO»i>.Kingman, bllity to error and the advantages of 

1 H. Y. 246. 260. 8ee also Emerson b. review." Per Smilh, J., Pratt v. Brown, 

Atwat«r, 7 Hich. 12 ; Botbichild v. Gris, 8 Wi*. 608, 609. And see EneeUnd i>. Mil- 

31 Mich. 190 ; Loeb r. Matbli, 87 Ind. wankee, 15 Wt*. 454 ; Taylor s. Prend), 

m. " It i* true that when a principle of 19 Vt 49 ; Bellows v. Parsons, 18 N. H. 

law, donbtftd in it* oharacler or oncer- 266 ; Hannel t>. Smith, 15 Ohio, 1S4 ; Day 

Wn in the tabject-matter of it* applica- v. Mnnaon, 14 Ohio St. 488; Oreen C*«- 

tloB, haa been settled by a series of judi- tie, && Co. i>. State, 28 Ind. 882 ; Barrow 

del dedeion*, and aequieaced in for a v. Myers, 29 Ind. 460 ; Mead v. McGraw, 

eoMidermble time, and important right* 10 Ohio St 66; Linn v. Minor, 4 Nev. 

*ad iDtereeU hare become estaUisbed 462; Willis i>. Owen, 43 Tex. 41, 48; Ham 

Bnder auch decisions, courts will hesitate on Legal Judgment, c. 14, f S. 
bag before tbey will attempt to overtora 



by Google 



66 COKSTirUTIOMAL LIMITATIONS. [OH. IT. 

lowed by other departmente of the goTernment alao. Indeed, in 
the great majority of cases, the 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 follow it in one case would only create a necessity for 
new litigation with similar result. Nevertheless, there are ex- 
ceptions to this rule which embrace all those cases where new 
action is asked of another department, which that department is 
at liberty to grant or refuse for any reasons which it may regard 
as sufiGcient. We cannot conceive that, because the courts have 
declared an expiring corporation to have been oonBtitutionally 
created, the l^slatnre would be bound to renew its charter, or 
the executive to sign an act for that purpose, if doubtful of the 
constitutional authority, even though no other adverse reasons 
existed.' In the enactment of laws the legislature must act upon 
its own reasons ; mixed motives of power, justice, and policy in- 
fluence 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 reft^n from declaring a 
[* 54] statute * unconstitutional, because not clearly satisfied 
that it is BO, though, 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 sub- 
ject. The dnty is different in the two cases, and presumptions 
may control in one which do not exist in the other. But those 
eases where new legislation is sought stand by themselves, and 
are not precedents for those which involve only considerations 
concerning the constitutional validity of existing enactments. 
The general acceptance of judicial dec&iona as authoritative, by 
each and all, can alone prevent confudon, doubt, and uncer- 
tainty, and any other course is incompatible with a true govern- 
ment of law. 

' In the celebrated cMe of the »ppli- upon cxecntire and legulatiTe action. 

cation of the Bank of the Unlled Stale* See Story on Con»t. {4th ed.) § 876. note, 

for a new charter, Pretldent Jackion felt It Is notorioo* that while the recnutnic- 

himielf at liberty to act Dpon hii own tion of Siatei wai going on, after the late 

Tlew of coiutitDtional power, In oppori- ci*il war, Congreu took especial pain* In 

Hon to that previontlj declared by the lome caiet to ao ihape it* legiilation that 

Supreme Court, and Preildent Lincoln the fedenl Supreme Court ihoald hare 

expretMd«imilar*IeiTiregRTdtngthecon- no opfMrtnnlty to que*lloo sod deny its 

cliuiveneH of the Dred Scott deciiintt ralidlly. 



by Google 



OB. IT.] CX3HSTEUCTIOH OF BTATB OONBTITUTIOHS. 



Cotutruetion to he Un^orm, 

A cardinal mle m dealing with written instraments is that 
they are to receive an unvarying interpretation, and that their 
practical construction ia to be uniform. A constitution is not to 
be made to mean one thing at one time, and another at some subse- 
queot time whan the oiroumstances may have bo changed as 
perhaps to make a different rule in the case seem desirable. A 
priocipal share of the benefit expected from written constitutions 
would be lost if the mlea they established were so flexible as to 
bend to circumstances or be modified by public opinion. It is 
with special reference to the varying moods of public opinion, and 
with a view to patting the fundamentals of government beyond 
their control, that these instruments are framed ; and there can 
be no such steady and imperceptible charge in their rules as in- 
heres in the principles of the common law. Those beneficent 
maxims of the common law which guard person and property 
have grown and expanded until they mean vastly more to us than 
they did to our ancestors, and are more minute, particular, and 
pervading in their protections ; and we may confidently look for- 
ward in the future to still further modifications in the direction of 
improvement. Public sentiment and action effect such changes, 
and tJie courts recc^ize them ; hut a court or legislature which 
should allow a change in public sentiment to Influence it in 
giving to a written constitution a construction not warranted by 
the intention of its founders, would be justly chargeable with 
reckless disregard of official oath and public daty ; and if its 
course could become a precedent, these instruments would 
be of • little avail. The violence of public passion is [* 55] 
quite as likely to be in the direction of oppression as in 
any other ; and the necessity for bills of rights in our fundamen- 
tal laws lies mainly In the danger that the legislature will be 
influenced, by temporary excitements and passions among the 
people, to adopt oppressive enactments. What a court is to do, 
therefore, is to declare the late at written, leaving it to the people 
themselves to make such changes as new circumstances may 
lequire.* The meaning of the constitution is fixed when it is 

1 hopk «. KomU, 21 Weod. G«8 ; 
Bcvd V. F*opI«, T N. T. 9; Ejtn ■ 



by Google 



68 OONBTITUTJONAL LIHITATIONa. [CH. IT. 

adopted, and it ia not different at any sabaequent time viien a 
court baa occasion to pass upon it.' 

The Intent to Govern. 

The object of construction, as applied to a written constitntioa, 
is to give effect to the intent of the people in adoptit^ it. In tbe 
case of all written taws, it is the intent of the law-giver that is 
to be enforced. But this intent is to be found in the instrument 
iteelf. It is to be presumed that languE^ has been employed with 
sufficient precision to convey it, and unless examination demon* 
strates that the presumption does not bold good in the particular 
case, nothing will remain except to enforce it. *' Where a law is 
plain and unambiguous, whether it be expressed in general or 
limited terms, the legislature should be intended to mean what 
they bare plainly expresaed, and consequently no room ia left for 
construction." ' Possible or even probable meanings, when one 

t C<nijDica,J..inFeoplav.BlodK«tt,13 Lonli, Ac. R. B.Co. o.Cl&rk, GSMo-SU; 

Hich.l2T,lS8; ScoUb. 6andford,lSHoiT. Hundt v. Sheboygui, &c. R. R. Ca, 81 

eea Wl». 41 ; SUc-k ». Jacob, 8 W. Vs.. 012 ; 

* United SUtei v. Fiiher, 2 Cranch, Bswbecker v. H«wbecker, 43 Md. 618. 
868; BmIs^ v. Mkttinglej, 14 B. Monr. The Temmrki of Mr. Jnatlce Brmnm In 
89; SturgU v. Crowninitiield, 4 Wheat. People o. Putdy, 2 Hill, S6, ue very forci- 
122 ; Schooner PaaliDB'i Cargo v. United ble la ihowiiiK the impolicy and danger 
State*, T Cranch, 62; Ogden v. Strong, 2 of lt>oking beyond tlie inatrument itiell 
Paine, C. C. 584; United Statei d. Itag«- to ascertain Its meaning, when the terma 
dale, 1 Hemp. 4BT ; Soulhwark Bank d. employed are positiTe and frtse from all 
Common wealth, 2a Penn. St 446 ; Ingalla ambiguity. " It i« t«[d that the ConiH- 
n. Cole, 47 Me. 530; HcCliukey d. Crom- tuUon doea not extend to public corpon- 
well, 11 N. Y. 508 ; Furmaa v. New York, tiona, and therefore a majority rote wu 
6 Sandt. 16 ; Newell v. People, 7 N. Y. 9; anfficient. I do not lO read the Craititn. 
People n. N, T. Central R. B. Co., 24 N. Y. tion. The langoage of the clan** if: 
486; BidwoU n. Whittsker, 1 Mich, 489; 'Tlie aiaent of two-thirda of the mem- 
Alexander p. Worthington, 6 Md, 471; ben elected to each branch of the legia- 
Canlwell d. Owena, 14 Md, 215; Caae i". latnre ahaU berequiaitetorrerjibili creat- 
WUdridge, 4 Ind. 61 ; Spencer o. State, inn, oonlinuing, altering, or renewing ant 
C Ind. 41 ; Pitman o. Flint, 10 Pick. 604 ; body politic or corporate,' These word* 
Heir* of Ludlow b. Johnaon, 8 Ohio, 653 ; are a« broad in their ligniflcation na any 
Diatrict TowQihIp v. Dnbaqne, 7 Iowa, wMch could hare been selected (br the 
262 ; Patliion o. Yub«t, 13 Cal. 176 ; Eto- occasion from onr rocabulary, and there 
kiel B. Dixon, 3 Geo. 148; In n Murphy, ia not a syliable in the whole initmmen( 
2S N. J. IBO ; Attomey-Oenenl v. Detroit tending in the illghtest degree to limit or 
aod EHn P. R. Co., 2 Mich. 138; Smith quality the anirenaUty ol the language. 
V. Thureby, 28 Md. 244; State r. Bias- If the claate can be so eonatrued that it 
det,4NeT.241; State <i.DoTon.6Ner. 899; shall not extend alike to aii corporations, 
Hyatl p. Taylor, 42 N. Y. 268 ; Johnson whether, pub lie or priiate, It may then, I 
r. Hndaon H. R. Co., 49 N. T. 465; think, be set tlown as an eslablUbed &ct 
Beardstown e. Vii^oia, 7« lU. U; St Um( tlM English lugiuge la too poor for 



by Google 



CB. IV.] CONBTBVOTIOM 0» STATE COKBTmTTIONB. 69 

u * plainly declared in the inatTDment itself, the courts [* 66] 
ue Qot at liberty to search for elsewhere. 

* ** Whether we are considering an agreement between [* 57] 
parties, a statute, or a coustitatioD, with a view to ita iu- 
teipretation, the thing whioh we are to seek ie the thought which 
ittzprenea. To aacertaia this, the first resort in all cases is to the 

Dm fruuing of ftaDduDental Uw* which people who adopted It, did not under- 
riuB limit the power* of the leBi*liUi*a •land the force of Ungnage." See rIm 
l)nu>cb of the goveromeDL No one hai, tame caie, 4 Hill, 364, aod fitate v. King, 
IbFUcTe.prelended that the Consittntion, 44 Mo. 286. Another conrt haa aaid: 
looking at that alone, can be reatrlcted to " Thli power of aanetrnction in couttt i« 
aoj partknlar dan or deMXiption of cor- a might; one, and, nnreBtrained h; settled 
porationa. But it Is laid that we may nilet, would tend to throw a painful un- 
look bcjond the initrnment for the por^ certaintj orer the etkct tliai might be 
poae of aicertalning the miichief againit glTen to the moat plainly worded BtatDles, 
which the clanie waa direuted, and that and i«nder conrta, in reality, the legislai- 
restrict ita operation. Bat wbo ahall teU tire power of the State. Iniuncm m« 
B* what that miachief wail Althongh not wanting to confirm Ihla. Judge-made 
moat men in public lite are old euoagh to law haa overrode the legrtatatiTe depart- 
reaieDiber the tinM when the ConaUtnUon ment. It waa the boaat of Chief Juatioe 
waa framed and adopted, they are not Paai6nton, one of the Judgea of the dea- 
agreed concerning the particular erlla pot Charletll., and not the worateven of 
againat which tbij clante waa directed, thoae timei, that be had entirely outdone 
Booie auppoae the clanae waa intended to the Parliament in making law. We think 
gnard agaiiMt lexialative corruption, and tliat ayatem of juri«prudeuce beat and 
olbeta that it waa aimed at motiopoliei. aafett which controls moat by fixed rulea. 
Some are of opinion that It only extend* and learea leaat to the discretion of the 
to private wiihont lotidiing public cor- judge; a doctrine eonaliCuling one of the 
poratian*, while other* loppote that it point* of auperiority In the common law 
ealy rcatricCa the power of the leglalatare orer that syitem which haa been admin- 
whin creating a shigle eorporaiion, and isteied la France, where anthoritiet had 
not when they are made by the htmdred. no force, and the law of each case waa 
la Ifaia way a solemn initmment — for lO what tlie judge at the case saw fit to 
I think tbe Ccmalitntioa ebonid be con- make it We admit that the exercise 
tidered — ia made to mean one thing of an unlimited discretion may. In * par- 
by me man and lomething eke by an- ticular Instance, be attended with a salu- 
ocbtr, tintll, in the end. It la in danger of i«ry result ; still history informs n« that 
being rendered a mere dead letter ; and It bai often been the case that the arbi- 
that, loo, where the Unguage Is so plain trary discretion of a Judge wa* the Uw of 
and explicit that it la {mpo**iUe to mean a tyrant, and wami u* that it may be so 
Mora than one thing, onlet* we flrat lote again." Paiint, J., in Spencer «. Slate, fi 
light of the inatniment i(*elf, and allow Ind. 41, 46. " Jndge-made law," a* the 
■wrielTe* to roam at large in the bound- phnae is here employed, I* that made by 
l*«*fleUaorspecnlatioQ. Forone.Idara jodidal decision* which conitrue away 
not Tentore opon >Dch a coorte. Written the meaning of atatute*, or find meaning* 
cnotitntiona of goTemment will toon In them the legislatuiw nerer held. The 
eoow to ba regarded aa of little ralne If phnua I* sometiniea used a* meaning, 
tbeirhijiActioDsmay bethaaligfillyorer- simply, the law that becomes establiihed 
looked ; and the experiment of setting a by precedent The uses and neceaalty of 
houdHy to power will prare a failure, judicial legiilation are considered and ex- 
Wc an not at liberty to presume that plained at length by Hr. Anatln, Id hi« 
(he fnmttn of the ConatitotioD, or tba ProTime of Jniiq)radene«. 



by Google 



70 oos8TrnmoNAL xjjotatiohb. [oa. it. 

Datural significatioD of the words employed, in the oider of graio- 
tnatical arrangemeiit in which the fiameis of the ioBtrument hare 
placed them. If, thus regarded, the words embody a definite 
meaning, which iovolves no absurdly and do contradiction be< 
tween different parts of the same writing, then that meaning, 
apparent on the face of the instrument, is the one which alone we 
are at liberty to say was intended to be conveyed. In such a 
case there is no room for construction. That which the words 
declare is l^e meaning of the instrument, and neither courts nor 
legislatures have a right to add to or take away from that mean- 
ing."^ 

The whole Inthvment to he examined. 

Nor is it %htly to be inferred that any portion of a written law 
is so ambiguous aa to require extrinsic aid in its conetiuotion. 
Every such instrument is adopted as a whole, and a clause which, 
standing by itself, might seem of doubtful import, may yet be 
made plain by comparison with other clauses or portions of the 
same law. It is therefore a very proper rule of construction, that 
the whole ti to be examined mth a view to arriving at the true tnten- 
tion of each part; and this Sir Edward Coke regards as the most 
natural and genuine method of expounding a statute.* If any 
section of a law be intricate, obscure, or doubtful, the proper 
mode of discoTering its true meaning is by comparing it with the 
other sections, and finding out the sense of one clause by the 
words or obvious intent of another.^ And in making this com- 
parison it is not to be supposed that any words have been em- 
ployed without occa»on, or without intent that they 
[* 58] should have effect as part of " the law. The rule appli- 
cable here is, that effect it to he given, (f postihle, to the 
whole initrument, and to every section and clause. If different 
portions seem to conflict, the courts must harmonize them, if 

> NeweU e. People, 7 S. T. S, 97, per holders, ka., 88 N. J. 211 ; Gold e. Fite, 

Jo/uiunt, 3. AndieeDenn ti. Beid, lOPet. 3Bai. SST; Btatflr.QBmmon, 78H(i. 4S1; 

624 ; Qreencutle Tovnihlp n. Blnck, E Broom'i Hnxlms (6th Am. ed.). 561, . 

Ind. 666 ; Bartlett v. Horria, 9 Port. 266 ; mug. 
Leonard v. Wliaman, 31 Hd. SOI, per > Co. lit. SSI a. 

Boriof, Ch. J. ; War d. Waj, 64 111. 406; • Stowell ■>. Loid Zoneh, Plowd. 866; 

HcAdoo V. Benbow, 63 N. C. 461 ; Haw. Chance v. Marlon Coimtj, 64 Bt. 66 ; 

kini V. Carrol, 60 Misi. 736 ; Cearfbaa e. Dyer v. Bajne, 64 Ud. 87 ; Brorau'a 

State. 42 Ud. 403i Dongla* v. Fne- Haximi, GSl. 



by Google 



OH. IT.] CONBTBUOnON OF STATE CONSTITUTIONS. 71 

practioable, and miut lean in favor of a coDstruction which will 
render every word operatiTe, rather than one which may make 
•ome words idle and nngatory.' 

This rule is applicable with special force to written constitu- 
tions, in which the people will be presumed to have expressed 
themselves in careful and measured terms, corresponding with 
die immense importance of the powers delegated, leaving as little 
as possible to implication.' It is scarcely conceivable that a case 
ean arise where a court would be justified in declaring any por- 
tioD of a written constitution nugatory because of ambiguity. 
One part may qualify another so aa 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 
anoUier, if by any reasonable construction the two can be made 
to stand together.' 

In interpreting clauses we must presume that wordM have been 
employed in their natural and ordinary meaning. As Marthail, 
Ch. J., says : The framers of the Constitution, and the people who 
adopted it, " must be understood to have employed words in their 
natural sense, and to have intended what they have said."* This 
is but saying that no forced or unnatural conatruction is to be put 
upon their language ; and it pcems so obvious a truism 
that one * expects to see it universally accepted without [* 59] 
question ; but the attempt is made so often by interested 
subtlety and ingenious refinement to induce the courts to force 
{rem these instruments a meaning which their framers never held, 

1 Attamer'aeiienl B.Detroit ind Erin tioo of writiogi, tbftt, a geneni infant 

Ftuk Road Co., S Uiol). 188 ; People «. appearing, it iliall control tha particalar 

Bnnx, 5 Mich. 114; District Toviwhip v- intent; but thii rule mutt (ometimMgiTe 

Dnbaqoe, 7 lona, 262; Hanly v. StaW, 7 waj, and effect miut be giTCn to apartlcn- 

Ud. 185;Parkinionii. State, 14 Md. 184; lariDMntplainlyexpreuediDonepartof a 

Belleville Railroad Co. v. OregoTj, 16 DL constitution, thonghappareutl; opposed ta 

K; Ogdenc. Strong, 2 Paine, C. C. 6&4; agenerat ioteDtdedncedfromotherparti. 

Rregaiep. Wardiboro, 30 Vt. 746 ; Brooki Warren t>. Shnman, 5 Tex. 441. In Quick 

». Mobile School CommiialoDera, 81 Ala. t>. Whitewater Toiriiship, 7 Ind. 670, It 

tt7 ; Den n. Daboit, IS N. J. 286 ; Den e. was said that if two prorisions of a writ- 

Sdeo^, B N. J. 39 ; Bigetow v. VT. Wie- ten oonstitntion are irraconcilablj repug- 

coDtin R. R., 27 Wia. 478 ; Oa* Companj nant, tliat whlcb is last in order of time 

■. Wheeling, 8 W. Tb. 820 ; Parker v. and In local position is to be preferred. 

Savage, Lea, 406. < Gibbon* v. C^en, 9 Wheat 1, 168. 

* Wolcotti>.WigtoD,T Ind. 44; People Bee Settle d. Tan Errea. 49 N. T. 281; 
>. PnrdT, 2 HUl, 81, per BnmoK, 1.; Jenkins V. Ewin, B Seiti. 466; Way v. 
Ore»cMtla TowMhip v. Black. & Ind. Way, 64 111. 406; Stuart e. Hamilton, 66 
«7: Onen«.Welier,S2Hl«s.«60. DU S58; Hale «. BTerett, 68 N. H. S; 

* It ii a geoanl rala in lb* canatnw- Stst« v. Bt«wstflr, 43 K.J. 126. 



by Google 



72 00N8TITUTI0KiL LUttTATTOHa. [OH. IT. 

that it freqaentlj becomea necesBary to re-dedare this fundamen- 
tal mazim.^ Narrow and technical reasoning is misplaced wben 
it is brought to bear upon an instroment framed by the people 
themselTes, for themselves, and designed as a chart upon which 
every man, learned and nnleamed, may be able to trace the lead- 
ing principles of government. 

But it must not be foi^tten, in construing our constitutions, 
that in many particulars they are but the legitimate auccessore of 
the great charters of English liberty, whose provisions declaratory 
of the rights of the subject have acquired a well-understood mean- 
ing, which the people must be supposed to have bad in view in 
adopting them. We cannot understand these provisions unless 
we understand their history ; and wben we find them 
[* 60] expressed in * technical words, and words of ait, we must 
suppose these words to be employed in their technical 
sense. Wben the Constitution speaks of an ex pott facto law, it 
means a law teobnically known by that designation ; the meaning 

> State V. Hace, 6 Hd. 837 ; VLniAj n. ezcepUon to th« geoenl mMnlng indi- 
Slate, T Hd. 1S6; Green r. Welter, 32 caled. Dwvri), lOtelteq. When word* 
Mils. 6G0; Oreencutle Township o. are oied to which the legltlature hat 
Black, G Ind. 666 : People v. N. Y. Cea- ^Ten a plain and defloite import In the 
tral Railroad Co., 31 Barb. 123, and 24 act, it would he daegeroua to put epon 
K. Y. 4SS ; 8toT7 on ConiL { 463. " Tlie them a constmction which wontd amount 
trae wnte in which words are Died in a to hotditig that tli« legialatnre did not 
itatute la to be aicertalned gsnerallj by mean whet it baa expieued. It followi 
taking tbem In thrir ordinarjand popa- from theae prindplei that the (tatuie 
lar algniflcation, or, if thej be termi of ilaelt InmlBliei the beat meani of iti own 
art, Id their tech dIcbI ilgniflaatloD. But ezpoiitioni and if tbe Knee in which 
it a alio a cardinal rule of expoiition, words were Intended to be naed caD be 
that the Intention 1* to be dednced from clearly aaoerlalDed from alt ita parts and 
the whole and cTery part of the itatote, provliions, the iDteotlon thui indicated 
taken and compared together, from the (hall prevail, witbont reiorting to otbcr 
word* of the context, and inch a con- mean* of aiding in the coniiraction. And 
•trDCtiOD adopted ai will beat effectaata theie familiar ralei of oonatruction apply 
the intention of the lawglrer. One with at leait aa mnch force to the con- 
part ii referred to In order to help the itntctlon of written cooatitDtion* as to 
construction of another, and the intent of itatDtea ; the former beieg preiDined to be 
the legisUtare is not to he collected from framed with mucli greater care and ootk- 
any particalar eipre(*ion, bnt Irom a aideration than the latter." Green *. W^ 
general view of the whole act. Dwarrli, ler, 82 Hiss. 660, 6TD. Words re-enacted 
068,608, 702, 703. And when it appeara after they have acqaired a aeltled mean- 
tbat the framers hare used a word In a Ing will be undentood in that meaning 
particular seose gCDerally la the act, It Futmer v. Commonwealth, 97 Penn. SL 
will be presanvd that It was inteDded to E03. The argnment ab ineaneauMti can- 
be lued in the same aenee throughout the not be suffered to inflnence the conrta 
act, DDlesa an intention to gire it a differ- by conatradloa to prevent the evident 
ent atgniflcation plainly appears in the Intentico. Chance v. Marian County, U 
particular part of the act alleged to be an Ql. 06. 



by Google 



OH. IV.J OOSBIBUanOS of state CONSTITITTIOHa. 78 

of the phrase ha^ng become defined in the history of conBtitu- 
tioaal law, and being so familiar to the people that it is not necee- 
■ary to employ language of a more popular character to designate 
it. The technical sense in these oases is the sense popularly un- 
deistood, because that is the sense fixed upon the words in legal 
and constitutional history where they have been employed for the 
proteotaoD of popnlar rights.' 

The Common Law to he kept in View. 

It is also a very reasonable rule that a State constitution shall 
be understood and construed in the light and by the assistance of 
the common law, and with the fact in view that its rules are still 
left in force. By this we do not mean that the common law is to 
control the constitution, or that the latter is to be warped and 
perverted in its meaning in order that no inroads, or as few as 
posuble, may be made in the system of common-Iaw rules, but 
only that for itu definitions we are to draw from that great 
fountaiii, and that in judging what it means, we * are to [' 61] 
keep in mind that it is not the beginning of law for the 
State, but that it assumes the existence of a well-underatOod 
■ystem which isatillto remain in force and be administered, but 
nnder anch limitations and reatrictionB as that instrument impoHes. 

> Be* Jenkini v. Gwln, 8 B«uk. 470. Kent, of which the thirteen proTincei 

It ii qnite ponlble, howcTer, In ftpplylnK were n part and parcel ; for in their chat^ 

conatitotiaiiBl maximi, to overtook en- ten the; were to hold of the manor o( 

linly the reuon npoa which th«7 leat, Greenwich in Kent, of whiuh manor the<r 

and " coDudering merel; the letter, go but were Xtj charter to be pared I The opin- 

■kia deep into the meaning." On the Ion, it ii caid, " raised a ver; land laugh," 

gnat debate on the motion for withdraw- but Sir Jamea continued to lapport it, 

faf the confldenceof Parliament from the and condnded by declaring that he woald 

i^nlatcn, after the aDrrender of Com- give the motioD a heart; negatlTe. Thni 

wallia, — a debate which called out the would he-haToaettled a great principle of 

kcat abilltiea of Fox and Pitt a* well ai of conttitatlonal right, for which a wTen 

t)M miniatr;. and DCCCMarilj led to the yean' blood; war had been waged, b; 

^aCMiltM of the primar; principle in pntting It in the fbrm of a meaningleu 

&«• goTvnment, that taxation and repre- Irgal Action. Uaniard'a Debate*, Tol. 

Mntadoa ahall go together, — Sir Jamei XUI. p. 11S4. Lord Hahon. toUowiog 

Mariott roae, and with great grarit; pro- Lord Campbell, refen the origin of tbit 

BiitUi to •«;, that if taxation and repre- wonderful arfrument to Hr. Hardinge, a 

MMatkn were to go band in hand, then Welah judge, and nephew of Lord Cam- 

Utaia bad an undoubted right to tax den; 7 Hahon'i Hist 139. He wat Hid 

America, becanae she waa tcproMnted in to hare been a good Iaw;er, but must 

Oa British Parliament She was repre- have read the histor; of his countr; to 

HBtad b; tbe members for the count; of little purpose. 



by Google 



74 CONSTITUTIONAL LIICETATIONS. [CH. IT. 

It is a maxim with the coavts that Btatut«s in derogation of the 
common law ahall be construed ettictly,' — a maxim which we fear 
is sometimes perverted to the overthrow of the legislative intent ; 
but there can seldom be either propriety or safety in applying this 
maxim to constitutions. When these instruments assume to make 
any change in the common law, the change designed ia generally 
a radical one ; but as they do not go minutely into particulars, as 
do statutes, it will sometimes be easy to defeat a provistoo, if 
courts are at liberty to say that they will presume against any 
intention to alter the common law further than is expressly de- 
clared. A reasonable oonstruction is what such an instrument 
demands and should receive ; and the real question is, what the 
people meant, and not how meaningless their words can be made 

by the application of arbitrary rules.^ 
[" 62] * As a general thing, it is to be supposed that the same 

word is used in the same sense wherever it occurs in a 

I Broom's Haximt, 33; SedK. on Stat, lan that, m b remedial proTidon, In 

ft Conat. Law, S18. See Uarriton o. fbrtbenuice of ofttural liglil and juitioe, 

Leach, i W. Va. 883. it ahoald bs liberally conitnied, to effect 

* Under a clanie of the conBtitution the beneficial pnrpoae had in view. Thiu 
of Michigan which prorided that "the aiUtnrj rulei, of directly opposite ten- 
Teal and personal estate of ererj female dene; and force, woald be contending for 
acquired before marrin ge, and all property the mastery in Ibe same case. The sab- 
to which she may afterwards become en- sequent decisions ander the same provi' 
titled, by gift, grant, inheritance, or de- tioa do not appear to have followed (hit 
rise, shall be and remain the estate and lead. Sea White d. Zane, 10 Midi. SSSj 
property of ancb female, and shall not be McKee v. Wilco(, 11 Mich. 368; Farr ». 
liable for the debts, obligations, or en- Sherman, 11 Mich. 33; Wataon v. Thni^ 
gi^emenU of her huiband, and may be her, 11 Mich. iS7; Burdeno s. Amperae, 
deriaad or bequeathed by her a* if she UMich.Ql; TongcMarrin, 16Mich-eO; 
were unmarried," it was held tlial a mar- Tillman n. Shackleton, IS Mich. MT; 
ried woman conid not sell her personal DeTrles e. Conklin, 22Hich. 266; Rankin 
property without the consent of her htis- v. West, 26 Mich. 195. The common law 
band, inasmuch as the power to do so was is certainly to be kept in Tiew in tlie in- 
Dotexpressly conferred, and the clause, terpretation of sach a clause, since other- 
being in derogation of the common law, wise we do not ascertain the eril de- 
was not to be extended by conitmctloa. signed to be remedied, and pethapa are 
Brown v. FiSeld, 4 Mich. 322. The dan- not able fully to understand and explain 
ger of applying arbitrary rule* in the the terms employed ; but it i« to be 
construction of constitutiraial principles looked at with a view to the real Intent, 
might well, as it seems to us, be iUustra- ratber than for the purpose of arbitraiily 
ted by this case. For while on the one reatntining it. See Bishop, l4iw of Mar- 
hand it might be contended that, as a rled Women, JS 1&-30 and eases cited; 
proTisioo Id derogation of the common HcGlnnis d. State, ft Humph. 4S ; Stale 
Uw, the one quoted should recelre a v. Lash, 19 N. J. SSO ; a. o. S3 Am. Dae. 
strict construction, on the other hand it 397 ; Cadwallader v. Harris, 76 IlL -S70; 
mightbe iusisted with perhap* equal rea- Hoyer n. Slate Co., Tl Fenn. St 393. 



by Google 



CH. IV.] OONBTBDOTIOK 07 8TATB CONBTITtmONS. 75 

CODstitntioD.^ Here again, however, great caution must be ob- 
served in applying an arbitrary rule; for, as Mr. Justice Story 
has well observed : " It does not follow, either logicaUy or gram- 
maticallj, that because a word ia found in one connection in the 
Couatitution with a definite sense, therefore the same sense is to 
be adopted in every other cotmeotion in which it occurs. This 
would be to suppose that the fmrnera weighed only the force of 
uugle words, as philolc^ts or critics, and not whole clauses and 
objects, as statesmen and praotioal reasoners. And yet nothing 
has been more oommoD than to subject the Constitution to this 
narrow and mischievous critioism.* Men of ingenious and subtle 
minds, who seek for symmetry and harmony in language, having 
found in the Constitution a word used in some sense which falls 
in with their &vorite theory of interpreting it, have made that 
the standard by which to measure its use in every other part of 
the instrument. They have thus stretched it, as it were, on the 
bed of Procrustes, lopping off its meaning when it seemed too 
lai^e for their purposes, and extending it when it seemed too 
short. They have thus distorted it to the most unnatural shapes, 
and crippled where they have sought only to adjust its proportions 
according to their own opinions." ' And he gives many ioatances 
where, in the national Constitution, it is very manifest the same 
word is employed in 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. 

Where a constitution is revised or amended, the new provisions 
come into operation at the same moment that those they take the 
place of cease to be of force ; and if the new instrument re-enacts 
in the same words provisions which it supersedes, it is a reason- 
able presumption that the purpose was not to change the law in 
those particulars, but to continue it in uninterrupted operation. 
This ia the rule in the case of statutes,* and it sometimes becomes 
important, where rights had accrued before the revision orameud- 
isent took place. Its application to the case of an amended or 
revised constitution would seem to be unquestionable. 

< Brien v. WiUlamion, 8 UIm. 14. • Lande v. Clifogo, &c. R. B. Co., 38 

* 8MreinM-kia(JalRjgn,J.,iiiOgdeii WU. 640; BUckwood v. Tan Tleit, 80 

». Sumden, 12 Wheat. 218. 290. Hick 118. 

■ Sun? on CoiMt } 464. And lee 

CbmikM Nation c. OeMyl^ 6 Fat 1, IB. 



by Google 



(xwaTiiuTioNAii uunx-noss. [go. it. 



Operation to he Protpeetive. 

We Bball Tenture alao to express the opinioo that a eonititution 
ihouid operate protpectively onZy, noleaBthe 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 soch obvious con- 
venieuce and justice, that it must always be adhered to in the con- 
Btraction of statutes, unless in cases where there is something on 
the face of the enactment putting it beyond doubt that the legis- 
lature meant it to operate retrospectively." ^ Retrospective 
[* 63] legislation, except *when designed to cure formal defects, 
or otherwise operate remedially, is commonly objectionable 
io principle, and apt to result in injustice ; and it is a sound rule 
of construction which refuses lightly to imply an intent to enact it. 
And we are aware of no reasons applicable to ordinary legislation 
which do not, upon this point, apply equally well to constitutions.' 

1 Moon V. Darden, 2 Excb. SS. See Co., IS B. Honr. 1; StaU v. Macon 

DMh s. Van Eleek, T Johni. 4TT; Brown Couniy Conrt. 41 Mo. 463; N. C. CmI 

r. Wilcox, 22 Miai. 127 ; Fries r. Hott, Co. v. Q. C. Coal & Iron Co., S7 Md. 657. 

62 Penn. St. S16j Broom'* Maximi, 28; In matterof Olirer Lee A Co.'i Bank, 21 

potl. p. ■ S70 and note. N. T. 9, 12, Deni'a, J., tay) : " The n)l« Uid 

* In Allbjer v. State, 10 Ohio 6L 588, down in Daah d. Tan Kleek, T Johni, 477, 

a question aroie under the proTiaion of and oclier caiei of that clasi, by wliitb 

tbeconitltntion thafaillawiof Bgenei*! tbe conrti an admontihed to aroid, if 

nature shall have a uniform operatian pouible, tnch an interpretation ai would 

throughout the State." Another clauae giTe a itatuta a retroipectire operation, 

provided that all lawi then in force, not baa but a limited application, it any, to 

inconsiitent with the conatitntion, abould tbe conitniolion of a constitution. When, 

continue in force Dntil amended or re- therefore, we read in the proviiion under 

pealed. AUbjer waa con-rtcted and len- consideration, tliat the ilockbolden of 

tenced to impriionment under a errmea erery hanking corptntion iball be inb- 

act prarlouily in force applicable to Ham- Ject to a certain liabilitj', we are to attrib- 

ilton County oiil;, and the question wu, ute to the language iti natural meaning, 

whetherthat actwai notinconiiitentwith without Inquiring whether prirste Intei^ 

the pTOTlilon aba*e quoted, and tiMrefore eat* may not be prejudiced bj anch a 

repealed hj It. The uourt held that the iweeping mandate." The remark wa« 

proTiaioo quoted eridentlj' bad regard to oiiMr.M it waa found that enoDghappeared 

future and not to pait legislation, and In the constitution to ahow clearjj that it 

tlierefore was not repealed. A aimllar wai intended to apply to existing, as well 

decision was made In Sute v. Barbee, 8 as to subsequently created, banking inati- 

Ind. 268. See alao State V. Thompson, 3 tattona. 
Kan. 433; 8bck v. MayiTille, «c B. B. 



by Google 



OH. 17.] COKSTBDOnOK OF 8TATB CONSTtTDTJONS. 7T 

Jmplicatiotu. 

The implicataoDs horn the provisions of a oonstitntion are some- 
times exceedingly impoitant, and have large iDflueuce npoa its 
Gonstroction. In regard to the Constitution of the United States 
the rule has been laid down, that where a general power is con- 
ferred or duty enjoined, every particular power necessary for the 
exercise of the one or the performance of the other is also con- 
fezred.^ The same rule has been applied to the State constitution, 
with an importaJit modification, by the Supreme Court of Illinois. 
" That other powers than those expressly granted may be, and 
often are, conferred by implication, is too well settled to he 
'doubted. Under every constitution the doctrine of impti- [* 64] 
cation must be resorted to, in order to carry out the gen- 
eral grants of power. A constitution cannot from its very nature 
enter into a minute specification of all the minor powers naturally 
and obviously included in it and flowing from the great and impor- 
tant ones which are expressly granted. It is therefore establisbed 
as a general rule, that when a constitution gives a general power, 
or enjoins a duty, it also gives, by implication, every particular 
power necessary for the exercise of the one or the performance of 
the other. The implication under this rule, however, must be a 
necessary, not a conjectural or argumentative one. And it is 
farther modified by another rule, that where the means for the 
exercise of a granted power are given, no other or different means 
can be implied, as being more effectual or convenient." ^ The 
rule applies to the exercise of power by all departments and all 
officers, and will be touched upon incidentally hereafter. 

Akin to this is the rule that " where the power is granted in 
general terms, tiie power is to be construed as coextensive with 
die terms, unless some clear restriction upon it is dedacible [ex- 
preealy or by implication] from the context." ' This rule has 
been so ^qnentiy applied as a restraint upon legislative en- 

' StOTT OD ConiL S 430. See «Uo v*da it hu been held that a conitltutloiuil 

United SUtea v. Titber, 3 Cimnch, 366 ; proTiiion that the countiei (hftll prorida 

KcCBlloeh V. Mtrjimi, 4 Wheat 810 ; for their paapen niU preclude a Stale 

Korthveeteni FertUUng Co. «. fiyda ■aflnm for the poor. Suteo. HaUock,14 

h(k.70in.«S4. Ner. a02; 1.0,88 Am. Hep. 560. 

* Retd V. People, 8 ni. 79, 83. See * Storr on Coiiit.S§ 424-420. 8e«Da 

Irtdier V. OUver, 26 Ark. 289. In Ne- Fnge Coon^ n, Jenka, 66 UL 87<>. 



by Google 



78 OONSTITtJTIONAL LIMITATIONS. [CH. IV. 

CToaohment upon the grant of power to the judiciaij, Uiat ve 
shall content ourselves in this place with a reference to the cases 
coUected upon this subject and given in another chapter.^ 

Another rule of construction is, that when the constitution 
defines the circumstances under which a right may be exercised 
or a penalty imposed, the specification is an implied prohibition 
agaiiist legislative interference to add to the condition, or to 
extend the penalty to other cases. On this ground it has been 
held by the Supreme Court of Maryland, that where the consti- 
tution defines the qualifications of an officer, it is not in the power 
of the legislature to change or superadd to them, unless the power 
to do BO is expressly or by necessary implication conferred by the 
constitution itself.' Other cases reci^nizing the same principle 
are referred to in the note.* 

[" 66] • The JAght which the Purpote to be aceomplUhed may 
afford in Cotutruction. 

The considerations thus far suggested are such as have no 
regard to extriusic circumstances, but are those by the aid of 
which we seek to arrive at the meaning of the constitution from 
an examination of the words employed. It is possible, how- 

< Bee pott, pp. •87-116. ground) for remoTing an ofBcer : Lowe d. 

* Thoma» v.Oweat.A Md. 189. And CommoDvesllh.S Het. (Ej.) 237; Brown 
■ee Barker c. People, 8 Cow. 6S6; Mxtter ■>. QroTer,6Baili,l ; nor change the com- 
of Donej, 7 Port. 293. peniatloo preacribed by the conititutioD : 

* The legitlature cannot add to the Ring n. Hunter, 6S N. C. SOS ; not pro- 
conititulional qnaliflcationi of Toten : Tide for the choice of offlcera a different 
Riion D. Fair, 24 Aik. 161 ; St Joaeph, mode from that preicribed by the conati- 
&c. B. R. Co. EF. Buchanan County Court, tntion: People n. Raymond, S7 M. Y.428: 
89 Mo. 486; SMte d. William*, 5 Wit. Dgtoj d. Kgw York, 36 Barb. 264; 22 
308; State t>. Baker, 88 Wii. 71 ; Hon- How. Pr. 226; People v. Blake, 49 Barb, 
roe V. CoUini, 17 Ohio St. G6fi ; Sute e. 9 ; People v. Albertion, &£ N. T. GO; 
Sjmondi, G7 Me. 148 ; Siale v. Statcn, 6 Oplnioot of Juticet, 117 Haia. 603 ; 
Cold. 238; Daiie* <:. McKeeby, 6 Nev. State v. Oolditncker, 40 Wu. 124; tee 
86ft ; McCafferty v. Onyer, 69 Penn. St. pott, p. • 277, note. A lepilatiTe exten- 
109 ; Quinn c. Stale, 86 Ind. 486 ; Clayton tion of an elective office it Told at 
V. Hairii, 7 Nev. 64 ; Randolph e. Good, applied to incumbenU. People n. Mc- 
8 W. Va. 661 ; nor ihorten the conilitii- Kinney, 62 N. Y. 874, 

tional term of an office: Howaid ■>. State, It is not nncwnaUtntional to allow tbe 

10 Ind. 09 ; Cotten ■>. Elllt, 7 Jonet, N, C. goTernor to tupply temporary racaiidet 

646 ; and tee poM, p. ' 276, note ; nor ex- in offlcei which under the conatltntion 

tend the conMltutlonal term : People r. ai« electire. Spragne v. Brown, 40 Wia. 

BuU,4elf. Y. 67; Ooodln d. Thoman, 10 S12. 
Kan. 191 ; nor add to tbe emuUtotional 



by Google 



CH. IV.] COHSTBOOnON OP STATE CONflTITUTIOKS. 79 

eTer, that after we shall have made nse of all the lights which 
the iDstraraent itself affords, there may still be doubts to clear 
up and ambigaities to explain. Then, and only then, are we 
warranted in seeking elsewhere for aid. We are not to import 
difficulties into a constitution, by a consideration of extrinsic 
&ct8, when none appear upon its face. If, however, a difficulty 
really exists, which an examination of every part of the instru- 
ment does not enable us to remove, there are certain extrinsic 
fuds which may be resorted to, and which are more or less satis- 
factory in the light tbey afford. Among these aids is a contem- 
plation of the object to be aeeompliahed or the mischief designed to 
be remedied or guarded agaiiut by the clause in which the ambigu- 
ity is met with.' " When we once know the reason which alone 
detennined the will of the law-makers, we ought to interpret and 
apply the words used in a manner suitable and consonaut to that 
reason, and as will be best calculated to effectuate the intent. 
Great caution should always be observed in the application of 
this role to particular given cases ; that is, we ought always to be 
certain that we do know, and have actually ascertained, the true 
and only reason which induced the act. It is never allowable to 
indulge in vague and uncertain conjecture, or in supposed rea- 
sons 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 furnish the due to the real meaning of the 
ambiguous provision," and it is especially important to look into 
it if the constitntion is the successor to another, and in the par- 
ticular in questJon essential changes have apparently been made.* 



• Proceeding) of the Constitutional Convention. [• 66 j 

When the inquiry is directed to ascertwning the mischief de- 
ugned to be remedied, or the purpose sought to be accomplished 
by a particular provision, it may be proper to examine the 

1 Alexander r. Worth inKton, 6 Hd. * Bdtimore e. State, 16 Hd. 876; 

471; Dktrict TowMliip c. Dnbnqiie. 7 Henr; n. Tilinn, 19 Vt. 447; HBm[I[(iii 

IOW&.382. See Smith v. People, 47 K. v. SL LonSj Countj Conrt, 16 Ho. 3; 

T. 830 ; People p. Potter, 47 N. T. 876 ; People d. Glee. 26 Midi. 88 ; BerrU o. 

iUll V. Chadwick, 46 IIL 28 ; Skwjar e. Beattf, 82 MiM. 52 ; Bandel ». Iiuc, IS 

buanacm Co., 4» VL 007. lid. 202 ; Btor.T on Conit. { 428. 

■ Smith on Sut and Gout Conatmo- * People c. Blodgett, 18 MitdL I2T, 

tioa, OM. See ilio remark* of Srannn, 147. 
J., te FMple r. Purdj, 2 HiU, 35-«7. 



by Google 



80 CONBTTTDTIONAI. LIUIXATIOKS. [CO. IT. 

proceedings of the conveDtion whioh framed the instrument.' 
Where the proceedings clearly point out the purpose of the i»o- 
visioQ, the aid will be valuable and satisfactory ; but nhere the 
question is one of abstract meaning, it will be difficult to derive 
from this source much reliable aasistancQ in interpretation. 
Every member of such a convention acts upon such motives and 
reasons as influence him personally, and the motions and debates 
do not necessarily indicate the purpose of a majority of a conven- 
tion in adopting a particular clause. It ia quite possible for a clause 
to appear so clear and unambiguous to the members of a con- 
veotiou as to require neither discussion nor illustration ; and the 
few remarks made concerning it in the convention might have a 
plain tendency to lead directly away from the meaning in the 
minds of the majority. It is equally possible for a part of tbe 
members to accept a clause in one sense and a part in another. 
And even if we were certain we had attained to the meaning of 
the convention, it is by no means to be allowed a controlling force, 
especially if that meaning appears not to be the one which the 
words would most naturally and obviously convey.' For as 
tbe constitution does not derive its force from the convention 
which framed, but from the people who ratified it, the intent to 
be arrived at is that of the people, and it is not to be supposed 
that they have looked for any dark or abstruse meaning in the 
words employed, but rather that they have accepted them in the 
sense most obvious to the common understanding, and ratified 
the instrument in the belief that that was tbe sense designed to 
be conveyed.' These proceedings therefore are less conclu^ve 
of the proper constroction of the instrument than are legislative 

proceedings of the proper construction of a statute ; since 
[* 67] in the latter case it is the intent of the * legislature we 

seek, while in the former we are endeavoring to arrive at 
the intent of the people through the discussions and deliberations 
of their representatives. The hietory of the calling of the con- 
vention, the causes which led to it, and the discussions and issues 

> P«r WidmnA, ChsncelloT, CoutaDt ■ Tarlor v. Tajlor, 10 Minn. 107. And 

B. People. 11 Wenrl. Gil. 618, and Clark i>. lee Eakin o. Baub, 1 J 8. & R. S63 ; Ald- 

Peaple,26Wend.699.002;perCmiJon,J., ridge v. WilUanu, 8 How. 1; Suto o. 

People V. FuTdj, 2 Hill, 31 ; People o. S. Doron, & Nev. S09. 

T. Central Railroad Co., 2i S. T. 485. « State c Mace, e Hd. 38T; Hanlf a. 

See State <'. Kennon, 7 Ohio 8t. 6M; Slate, 7 Hd. 135; HiUi t>. Chicago, 00 HI. 

Wiiconain Cent. R. R. Co. ■>. Taylor Co. 86; Baardalown e. Virgliiia, 76 HL 84. 
1 Am. & Eng. R. R. Co*. 032. 



by Google 



CH. IV.] CONSTBDCTION OF STATE OONSTPTUTIONS. 81 

before the people at the time of the election of the delegates, will 
Bometimes be quite as instructive and satisfactory as anything to 
he gathered from the proceedings of the convention. 

Contemporanetnu and Practical Conatmction. 

An important question which now suggests itself is this : How 
£u the contemporaneous interpretation, or the subsequent practi- 
cal coDstruction of any particular provision of the constitution, is 
to have weight with the courts when the time arrives at which a 
jadicial decision becomes necessary. Contemporaneous interpre- 
tation may indicate merely the understanding with which the 
people received it at the time, or it may be accompanied by acts 
done in putting the instrument in operation, and which neces- 
sarily assume that it is to be construed in a particular way. In 
the first case it can have very little force, because the evidences 
of the public understaudiug, when nothing has been done under 
the provision in question, must always of necessity be v^ue and 
indecisive. But where there has been a practical construction, 
which has been acquiesced in for a considerable period, consider-, 
ations in favor of adhering to this construction sometimes present 
themsetves to the courts with a plausibility and force which it is 
not easy to resist. Indeed, where a particular construction has 
been generally accepted as correct, and especially when this has 
occurred contemporaneously with the adoption of the constitution, 
and by those who had opportunity to understand the intention of 
the instrument, it is not to be denied that a strong presumption 
exists that the construction rightly interprets the intention. And 
where this has been given by officers in the discharge of their 
official duty, and rights have accrued in reliance upon it, which 
would be divested by a decision that the construction was erro- 
neous, the argument ab inconv^ntenti is sometimes allowed to have 
very great weight. 

The Supreme Court of the United States has had frequent 
occasion to consider this question. In Stuart v. Laird,' decided 
in 1803, that court sustained the authority of its members to sit as 
circuit judges on the ground of a practical construction, 
* commencing with the oi^nization of the government. [* 68] 

In Martin v. Hunter's Lessee,^ Justice Story, after 
1 1 Craocb, 2». * 1 Wheat 301, 861. See Storj on Conat H 406-408. 



by Google 



8S COMSTITUTIONAL UMITATIONS. [CH. IV. 

balding that the appellate power of the United States extends to 
cases pending in the State courts, and that the 25th section of the 
Judiciaiy Act, which authorized its exercise, was supported b^ 
the letter and spirit of the CooBtitution, proceeds to say : " Strong 
as this conclusion stands upon the general language of the Con- 
stitution, it may still derive support from other sources. It is an 
historical fact, that this exposition of the Constitution, extending 
its appellate power to State courts, was, previous to its adoption, 
uniformly and publicly avowed by its friends, and admitted by 
its enemies, as the basis of their respective reasonings both in and 
out of the State conventions. It is an historical fact, that at the 
time when the Judiciaiy Act was submitted to the deliberations 
of the First Congress, composed, as it was, not only of men of 
gteat learning and ability, but of men who bad acted a principal 
pai-t in framing, supporting, or opposing that Constitution, the 
same exposition was explicitly declared and admitted by the 
friends and by the opponents of that system. It is an historical 
fhot, that the Supreme Court of the United States have from time 
to time sustained this appellate jurisdiction in a great variety of 
oases, brought from the tribunals of many of the most important 
States in the Union, and that no State tribunal has ever breathed 
a judicial doubt on the subject, or declined to obey the mandate 
of the Supreme Court, until the present occasion. This weight 
of contemporaneous exposition by all parties, this acquiescence 
by enlightened State courts, and these judicial decisions of the 
Supreme Court through so long a period, do, as we think, place 
the doctrine npon a foundation of authority which cannot be 
shaken without delivering over the subject to perpetual and 
irremediable doubts." The same doctrine was subsequently sup- 
ported by Chief Justice MarthaU in a case involving the same 
p<nnt, and in which he says that "great weight has always been 
attached, and very rightly attached, to oontempoianeous exposi- 
tion."^ 

In Bank of United States v. Halstead ' the question was made, 

whether the laws of the United States authorizing the courts of 

the Union so to alter the form of process 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 con- 

1 Cobmi p. Vtagiaia. 8 Wbeat SM, 41& < 10 Wheat. 51, OS. 



by Google 



CB. IV.] CONSTBDCTIOK Ot 8TATX OONSTITDTIOKS. 83 

■titatioDal ; and Mr. JuBtice Th<mipton, in language similar to 
that of Chief Jastice Mankall in the preceding case, says : " If 
any doubt existed whether the act of 1792 Teste snob power in 
ibe conrta, or with respect to its constitutionality, the practical 
emsbtlction given to it ought to have great weight in deteimining 
both qaeations." And Mr. Justice Johngon assigns a reason for 
diis in a subsequent case : " Every candid mind will admit that^ 
thb is a very different thing from contending that the freqnenf 
repetition of wrong will create a right. It proceeds upon the 
presumption that the oontemporaries of the Constitution have 
claims to onr deference on the question of right, because they had 
the best opportunities of informing themselves of the understand- 
ing of the framera of the Constitntaon, and of the sense put upon 
it by the people when it was adopted by them." * Like views have 
been expressed by Chief Justice Wa^ in a recent deci^on.* 

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

Where, however, no ambiguity or doubt appears in tbe law, we 
tiiink the same rule obtains here as in other oases, that the court 

1 Ogden e. SiiDnden, 12 Wbeat. 200. 68; Norrii n. Cljmar, 2 Penn. St 27?; 

Sea Flk* v. Xxgmm, U Ho. IBl ; Slate n. Hoen v. City at BeuUng. Zl Peon. 8>. 

Faikii»on,& Ner. 16. 1B8; WuhingtOD v. Pige, 4 Cal. 88S; 

* Minor ■>. Happertett, 21 WtSL 102. Soi^tt v. Laplce, 8 How. 48 ; Biuell v. 

And ns CdUni r. Handenoii, 11 Bath, Penrow, 8 How. S17 ; Troop c. Haight. 

74,03. Hopk. 239; United Statai v. Oilmon. 8 

■ DnioaIiininiK«Co.ti.Hoge,21How. WhU. 830; Hedgecock c. DitIi, S4N. C 

85, 66; Edw«rd'( Leuea v. Darby, 12 860; Lafiiyetto, ftc. R. R. Co. i. G«iger, 

WhMt. sot ; Haghea v. Hngbea, 4 T. B. 84 ImL ISfi ; Bonn v. People, 4& HI. 897 ; 

■onr. 42 ; Chamber* v. Fltlt, 22 Tex. Scanlan d. Child*, S3 Wl«. 66S ; Pairtaolt 

KM ; Britton r. Ferry, 14 Hich. 58 ; Bay v. Miaener. 20 Minn. S9fl. Where the 

□ty c. Bute Treainrer, 23 Hich. 409; conititutlon has been conatnied by tbe 

PhuMiMr V. Flmmier, 87 Mlu. 186 ; Bur- polHieal departmetiu of the government 

gtn o. Pne, 2 OiU. 11 ; Stale v. Hayhew, in iu application to a political qaeition, 

1 OiU, 487 ; Content v. People. 11 Wend, the coarta will not oni^glTe great condd- 

611 ; People v. Dayton, 66 N. T. 367 ; eratlon to their action, bnt wilt generally 

BaltfanM p. Bikte, 16 Ud. STB ; Pamen' Mk>« tbe eonttniction implidtly. Peo. 

aod Itoehwik*' Bank v. Smith, 8 8. * B. pte «. Superriion of U SaUe, 100 HL 496. 



by Google 



84 CONBTITUTIONAL LTMITATIOire. [CH. IV. 

should confine its attention to the law, and not allow extrinsic 
circumstances to introduce a difiBcuIty 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- 
[* 70] pose of the * law-makers. " Contemporar; construction 

. . . 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." ' While 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 limitationa. In the case of Stuart v. Laird,* 
above referred to, the practical construction was regarded as con- 
clusive. To the objection that the judges of the Supreme Court 
had no right to sit as circuit ju^es, the eoart say: " It is suffi- 
cient to observe that practice and acquiescence under it for a 
period of several years, commencing with the organization of the 
judicial system, affords an irresistible answer, and has indeed fixed 
the construction. It is a contemporary interpretation of the most 
forcible nature. This pi-actical exposition is too strong and obsti- 
nate to be shaken or controlled. Of course the question is at rest, 
and ought not now to be disturbed." This is certainly very strong 
language ; but that very similar in character was used by the Su- 
preme Conrt of Massachusetts iu one case where lat^e and valu- 
able estates depended upon a particular construction of a statute, 
and very great mischief would follow from cbaDging it. The court 
said that, " although if it were now ret irUegra, it might be very 
difficult to maintain such a construction, yet at this day the argu- 
ment ah inconvenienti applies with great weight. We cannot 
shake a principle which in practice has so long and so extensively 
prevailed. If the practice originated in error, yet the error is now 
80 common that it must have the force of law. The legal ground 
on which this provision is now supported is, that long and contin- 
ued usage furnishes a contemporaneous construction which must 
prevail over the mere technical import of the words." ' Language 
nearly as strong was also used by the Supreme Court of Maryland, 

I Story OD ConiU S *')^■ -And m« of CI. Hep. 613 ; a. o. in emiT, 91 U. S. 
Eruw f. Mjen, 2& Penn. St. 116 ; Sadler Bep. 72. 
D. Langham, U Ala. 311 ; Baron v. Firat * 1 Cranch, 2M. 

PuUh in Falmaath, 6 Mau. 401 ; Uoion * Rogen v. Goodwin, 2 MaM. 476. 

Paciflc R. R. Co. o. Uolud SutM, 10 Ct. See alio FaU r. Hanlrigg, 4S Lid. 676 ; 
ScMiUn V. Child*, 83 Wis. 603. 



by Google 



OH. rr.] coHSTBUcnoH of btatb oonstetutions. 85 

where the point involved was the poasession of a certain power by 
the legislature, which it had coastantly exeroiaed for nearly sev- 
enty years.' 

It is believed, however, that in each of these cases an examina- 
tion of the Constitution left in the minds of the judges 
sufficient ' doubt upon the question of its violation to [ *71] 
warrant their looking elsewhere for aids in interpretation, 
and that the cases are not in conflict with the general rule as 
above laid down. Acquiescence for no length of time can legalize 
a clear usurpation of power, where the people have plainly ex- 
pressed their will in the Constitution, and appointed judicial tri- 
bunals to enforce it A power is frequently yielded to merely 
because it is claimed, and it may be exercised for a long period, 
in violation of the constitutional prohibition, without the mischief 
which the ConstitntdoD was designed to guard against appearing, 
or without any one being sufBciently interested in the subject to 
raise the question ; but these circumstances cannot be allowed to 
sanction a clear infraction of the Constitution.' We think we 
allow to contemporary and practical construction its full legiti- 
mate force when we suffer it, where it is clear and uniform, to 
solve in its own favor the doubts which arise on reading the 
inatroment to be construed.' 

I Stata V. Hajrhe*, 2 Oill, 187. In than when tt concern* th« lubitance of 

Em«x Co. e. Pacific Hilli, 14 AUen, 389, legfilatlon; and if the objection is parel^ 

tbs Bnpreme Court of Mutachuaetta ex- teclinica], long acquieacence will be con- 

pr«Mcd the opinion tliat Ihf constitnttoa- cluiire agabtt It Continental Inlp. Co. 

■Iit7 of the «cu of ConjrreM making tr. Phelps, 47 Mich. 299. 
tremimj notei a legal tender ought not to * There ara csaes which clearlj go 

be fa«Bted bj a State court aa open to fnrther than an; we have quoted, and 

diacDMion after the noiei had practically which lostain tepilative action which 

constituted the carrencj of the country they hold to be tuurpation, on the lote 

forflrejeara. At a ilill later day, how- ground of long acquiescence. Thna in 

exer, the jndget of the Supreme Court of Brigham d. Miller, 17 Ohio. 440, the que*- 

tlie United Slates held these acts void, tlon wai, Has tlie leglslatore power to 

thoDgh they afterward! receded from thla grant divorces ! The court eay : " Oor 

poaitJoii. legislature have aasumed and ezerciied 

■ Bee further, on this subject, the case this power for a period of niore than forty 

of Sadler a. Langham, 34 Ala. SIl, 834 ; yeara, although a clear and palpable aa- 

Pe<9le B. Allen, 43 N. Y. STB ; Brown c. sumption of power, and an encroachment 

State, 6C^ GS5; Hahn v. Cnlted States, upon the judicial department, in violation 

14 Ct. of CI. 306; Swift v. United States, of the Conatttatlon. To deny this Iong> 

14 Ct. ot CI. 461. Practical acquieacence exercised power, and declare all the cou- 

in a supposed tmconaUtutional law is en- sequences leaulcing from it void, is preg- 

lilled to mnch greater weight when the nant with fearful consequences. If it 

defect which ia pointed out relatea to affected only the rights of property, we 

waw forms of espteasi<M) or elMctiiient ahonld not heajtate; but second marriages 



by Google 



OONSIirUIUUIAI. LDUXAZIOHB. £{3H. IT. 



[* 72] • Ui^'utt ProvittoM. 

We hsTe elsewhere expreased the opinion that a statnto caitnot 

be declared void on the ground solely that it is repugnant 

[* 78] to a supposed general intent or * spirit which it is thought 

pervades or lies concealed in the Constitution, but vholly 

h*Te been oontrftcted and children bom, aixler tbe general \aw, uid thii wittiaal 
and it wouM butardize all theie, although any recital bj way of preamble, a* la the 
bom under the 011011011 of an apparent act lo incorporate the Central Railroad 
wedlock, Mitborixed by an act of the legi*- Company. That preamble waa placed 
lature before they were bom, and in con- there by the writer o( thli opinion, and a 
•equenceofwhich the retatian waa formed itrict compliuice with thit claiue of the 
whk^ piTe them l^b. On ■eoount of ConititatioD would hare rendered It no- 
jAeie ehildren, and lor them only, we cetMry Jo erei; aubtequent Act But tbe 
be«LUte. And In view of this, we are leglslatare, [o their wisdom, hare tliougbt 
constrained to content oonelTei with aiiD* differently, and hare acted differently, 
ply declaring that the eierciae of the pow- nntit now our (pedal legislation and ila 
er of granting diTorces, on the part of the mischiefs are beyond recovery or rem- 
legislatm^, is anwarranted and nnconsti- edy." These cases certainly presented 
(ntional, an encroachment upon the dutie* very strong motives for declaring ti» law 
of tlie Judiciary, and a striking down of to be what it was not ; but it wouLd have 
the dearest rights of individjals, without been interesting and useful if either o( 
«ntbority of law. We tnitt we have said these iearsed courts had enumerated die 
enough to vindicate the Constitution, and evils that must be placed in the oppceila 
feel confldent tliat no department of state scale whea the question is whether a con- 
has any disposition to violate it, and that stitutional rale shall be disregarded ; not 
the evil will cesse." So In Johnson r. the least of which is, (he encaur^^ment 
Joliel & Chicago Railroad Co., 28 III. 202, of a disposition □□ the part of legislative 
207, the question was whether railroad bodies lo set aside constitntional restric- 
corporatiDns could be created by special tioni, in the belief that, if the uncoostito- 
law, without a special declaration by way tloiud law cau once be pnt in force, and 
of preamble that the object to be acoom- large interests enlisted under it, the conrtt 
plished could not be attained by gmeral will not venture to declare it void, but 
law. The court tay : " It is now too late will submit to the tisurpation, bo mattw 
to make this objection, since, by the ao- how grossand daring. We agree with tbe 
tion of the general assembly under this Supreme Court of ludiaoa, that, in constra- 
claase, special acts have been so long the ing constitutions, courts have nothing to 
order of the day and the ruling passion do with ihe argument ab inronrtrdaiti, and 
with every legislature which has con- should not " bend the Constitution to suit 
vened under the Constitution, until their the law of the hour:" Greencaslle Town- 
acts of this description flU a huge and ship r. Black, 6 Ind. 567, 666; and with 
misshapen volume, and important and BronsM, Ch. J., in what he says in Oakley 
valuable HgliU are claimed under them, v, Aspinwali, 3 M.T. 54T, 668 :" It Is hi^ 
The clause has been wholly disregarded, ly probable thatinconvenienceewiUiesulI 
and it would now produce far-spread ruin from following the Constitution as it ia 
to declare snch acts unconstitutional and written. But that consideration can hcve 
raid. It is now safer and more just to no force with me. It is not for ni, but for 
•11 parties to declare that it must be un- those who maile the inttrument, to supply 
deratood that, in tlie opinion of the gen- its defects. If the legislature or tbe conrtt 
eral assembly a( tite time of passing the may take that office upon themselvea, or 
■pedal act, its object could not be attained it, under color of comtruction, or upon 



by Google 



OH. IT.] CONSTBUCnON OF STA.TE OOHSTITUTIONS. 8T 

nnexpressed, or beoaase, in the opimoQ of the court, it violaUs 
fondameatal rights or principles, if it was phased in the exercise 
of a power which the Constitution confers.^ Still less will the 
iDJustice of & constitutional provision authorize ttie courts to dis- 
T^ard it, or indirectly to annul it by construiog it away. It is 
quite possible tliat the people may, under the influence of tempo- 
my prejudice, or a mistaken view of public policy, incorporate 
provigione in their charter of government, infringing upon the 
proper rights of individual citizens or upon principles which ought 
ever to be regarded as sacred and fundamental in republican 
government ; and it is also pos^ble that obnoxious classes may be 
unjustly disfranchised. The remedy for each injuBtice must be 
found in the action of the people themselves, through an amend- 
ment of their work when better counsels pieviul. Such provi- 
Bons, when free from doubt, must receive the same coDstruction 
as any other. We do not say, however, that if a clause should be 
Jbund in a oonBtitotion which should appear at first blush to 
demand a construction leadii^ to monstrous and absurd conse- 
qoences, it might not be the duty of the court to question and 
erossqnestiou such clause closely, with a view to discover iu it, 
if possible, some other meaning more consistent with tbe general 

anj other apedotu ground, tbe^ ma; de- defects hj forced uid nnnalaral conatrqo- 
ptrt from that which ii plilnly declared, tioni, thej Inflict a wound upoD the Con- 
^people maxwell deapiir of erer being ttitution which noihiDg qui heal. One 
•bte to ■«! anj boiindu7 tc the powen of ilep taken by the legislature or tbe judi- 
tbe goremmant. Written const! tutioDi ciary, in enlarging the powers of the gOT- 
will be more than useless. Belieringas emment, opens the door for ftnoEtier which 
I do tbu the incceaa of free institatioDs will be sure to follow ; and lo tbe procew 
d^ends apoa *, rigid adhereoce lo the goes on until all respect for the funda- 
ftudamental law, I have nerer yielded to mental law is lost, and the powera of the 
eoDdderationi of expediency in expound- goTemment are Just what those in tiathor- 
lag it. Thwa ia alwayt mom plausible Ity please to caU them." Bee also Enck- 
naaoD for latitodinarian constrnctioni Ing v. gimmons, 28 Wis. 273. Whether 
which are resorted to ftir the purpose of there may not be dream a lances uoder 
■cqniringpower; someetil tobearoided which the State c«n he held Justly es- 
er amne good to be attained by pushing toppeil from alleging the invalidilf of iU 
the power* of the gOTertiment beyond own action In apportioning the political 
tbeir legitimate boundary. It is by yield- dlTlsions of the State, and Impoeing bur- 
iag to snoh influences that OMistitDtions d<aii on citlcens, where such action has 
are gradtuUly UDdetmlned and Anally been acquiesced in for a considerable 
oTerthrown. My rule lia* e»er been to period, and rights have been ai:quired 
faUowttwflindamental law asit Is written, through bearing the burdens under it, MS 
Rgardle** of ooDsequoDces. If the law Rumsey e. People, 19 N. Y. 41 ; People *. 
does not work well, the peotrie can amend Uajnard, 16 Mich. 470 ; Kneeland v. Mil- 
it; Md incoDTeniences can be home long wankee, 16 Wii. 464. 
imoo^ to await that prooett. Bnt if the 'See pott, p. ■ 171, and caaee Kfaned 
■•Vihmn or tb* coorU undertake to <we to in notee. 



by Google 



88 coNSTrrnrioiTAL ldutations. [ch. it. 

purposes and aims of these iDstrumeDta. When sach a case arises, 
it will be time to consider it.^ 



Dutg in Cote of Doubt. 

But when all the legitimate lights for ascertuiuDg the mean- 
ing of the Constitution have been made use of, it may still happen 
that the construction remains a matter of doubt. In such a case 
it seems clear that eveiy one called upon to act where, 
[* 74] in his * opinion, the proposed action would be of doubtful 
constitutionality, is bound upon the doubt alone to abstain 
from acting. Whoever derives power from the Constitution lo 
perform any public function is disloyal to that instrument, and 
grossly derelict in duty, if he does that which he is not reasonably 
satisfied the Constitution permits. Whether the power be legisla- 
tive, executive, or judicial, there is manifest disregard of consti- 
tutional and moral obligation by one who, haying taken an oath to 
observe that instrument, takes part in an action which he cannot 
say he believes to be no violation of its provisions. A doubt of 
the constitutionality of any proposed legislative enactment should 
in any case be reason sufficient for refusing to adopt it ; and, if 
legislators do not act upon this principle, the reasons upon which 
are based the judicial decisions sastaiuing legislation in very 
many cases will cease to be of force. 

Direetoty and Mandator;/ Promttont. 

The important question sometimes presents itself, whether we 
are authorized in any case, Vf hen the meaning of a clause of the 
Constitution is arrived at, to give it such practical construction 
as wiU leave it optional with the department or officer to which it 
is addressed to obey it or not as he shall see fit. In respect to 
statutes it has long been settled that particular provisions may be 
regarded as directory merely ; by which is meant that they are to 
be considered as giving directions which ovght to he followed, but 
not as so limiting the power in respect to which the directions 
are given that it cannot effectually be exercised without observing 



by Google 



OB. IV.] C0K8TBD0T10N OF flTATB OOBSTTTUTIOITS. 89 

them. The force of many of the decisions on this subject will be 
lesdily assented to by all ; while others are sometimes thought to 
go to the extent of nullifying the intent of the legislature in essen- 
tial particulars. It is not our purpose to examine the several 
cases critically, or to attempt — what we deem impossible — to 
reconcile them all ; but we shall content ourselves with quoting 
from a few, with a view, if pi-acticable, to ascertaining some line 
of princi[^e opon 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 fuling to employ negative words plainly importing that the 
act should be done in a particular manner or time, 
and not * otJurvrite.^ The use of such words is often [* 75} 
conclusive of an intent to impose a limitation ; but their 
absence is by no means equally conclusive that the statute was 
not designed to be mandatory.' Lord Manifield would Iiave the 
questiou whether mandatory or not depend upon whether that 
which was directed to be done was or was not of the essence of the 
thing required.' The Supreme Court of New York, in an opinion 
afterwards approved by the Court of Appeals, laid down the rule 
as one settled by authority, that " statutes directing the mode of 
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 gen- 
eral, and as likely to include within its scope, in many cases, things 
which are of the very essence of the proceeding. The questions 
in chat case were questions of irregularity under election laws, not 
in any way hindering the complete expression of the will of the 
electors ; and the court was doubtless right in holding that the 
election was not to be avoided for a failurein the officers appointed 
for its conduct to comply in all respects with the directions of 
the statute there in question. The same court in another case 
say : " Statutory requisitions are deemed directory only when they 
relate to some immaterial matter, where a compliance is a matter 
(tf convenience rather than of substance." ' The Supreme Court 

I SlaTloa b. Haling*, 7 Ind. 144 ; King ■ Bex v. Lockidale, 1 Butt. 44T. 

*; InlwIiiUDU of SL Oregoiy, 2 Ad. & EU. • People r. Cook, 14 Barb. 390 ; ■. o. 

Mi KiDf V. InhaUunu of HipiwHll, 8 8 If. T. 67. 

B. AC. 460. * People b. Scherroerhorn, 19 Qarb. 

* Diatrict Town«hlp b. Dnbnqae, 7 HO, US. If a lUtate impoiet a dul; and 

bwa, S6S, 9S4. gj*u Um munt of performing tbatdul^. 



by Google 



90 OOHBTITUTIONAL LQUTATIONS. [OB. IV. 

of Michigan, in a caae ioTolving the validity of proceedings on tho 
sale of land for taxes, lud down the role that " what the law 
requires to be done for the protection of the taxpayer in mandatory, 
and cannot be i-^arded as directory merely." ' A similar rule wat 
recognized in a recent case in Illinois. Commissioners had been 
appointed to ascertain and assess the damt^e and recompense due 
to the owners of land which might be taken, on the real estate of 
the persons benefited by a certain local improvement, in proportion 
as nearly as might be to the benefits resulting to each. By the 

statute, when the assessment was completed, the com- 
[* 76] missionera were to sign and return the same to the * city 

council within forty days of their appointment. This 
provision was not complied with, but return was made afterwards, 
and the question was raised as to its validity when thus made. 
In the opinion of the court, this question was to be decided 
by ascertaining whether any advantage would be lost, or right 
destroyed, or benefit sacrificed, either to the public or to any 
individual, by holding the provision directory. After remarking 
that they had held an assessment under the general revenue law, 
returned after the time appointed by law, na 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 
no negative words used declaring that the functions of the com- 
missioners shall cease after the expiration of the forty days, or 
that they shall not make their return after that time ; nor have 
we been able to discover the least right, benefit, or advantage which 
the property owner could derive from having the return made 

it romt be held to be mandatarj. Vewiie matter of dlicretioii uid no more; bat 
V. China, 60 Me. 618. " It would not per- oot lo when tliey are followed by wordi 
biipi be easy to ley down any genetal rule of poaitire prohibitioiv' PearM *. Mor- 
al to when the proviiioni ef a etalute are rive, 2 Ad. & EL 06." Per Siametod, J., 
merely directory, and when mandatory in Bladen n. Fhiladetphia, 60 Penn. Sl 
or ImperatJTe. Where the wnrdi are 4S4, 460. And see Pittsbiirg e. Covntn, 
afflrmative, and relate to the manner io 74 Penn. St. 400. 

which power or juriadiction veited in a ' Clark d. Crane, 6 Mich. 160, IM. See 

public officer or body is to he exerciled, alio Shawnee County v. Carter, S Xana. 

and not totheUmitaof thepowerorjtnris- 115. In Ute Awociation v. Board of 

diction itaelf, they may, and often have Asaeaiore, 19 Mo 612, it ii held that a 

been, conitnwd to be directory ; bnteeg- conititutional proviilon that "all pn>p- 

Btive wordi, which go to tlie power or erty sobjecl to taxation ought to be taxed 

juriadiction Itaelf, have never, that I an in proportion Co iti Talue " ia a prohiU- 

aware of, been brought witbln that cats- tion agalnit tt« being taxed in any other 

gory. ' A daue ii directory,' aayi Tom- mode, and the word ouglit ii mandatory. 
(<m, J, 'when the protiaioBt contain m«n * Harth e. Ciieinat, 14111.228. 



by Google 



CH. IV.J OOMBTBCOnON OF STATB OONSXrnjTIONS. 91 

vithiD that time, and not after. No tune is limited and made 
dependent on that time, within which the owner of the property 
may i^ply to have the assessment reviewed or corrected. The 
next section requirea the clerk to give ten days' uotioe that the 
aaseaament has been returned, specifying the day when objections 
may be made to the aasesBment before the common counoil by 
parties interested, which hearing may be adjourned from day to 
day ; and the common council is empowered in its discretion to 
coafinn or annul the aeaeesment altogether, or to refer it back to 
ihe same commisuoners, or to obhers to be by them appointed. 
Aa the propwty owner has the same time and opportunity to 
prepare.bimBelf to object to tiie assesament and have it corrected, 
whether the return be made before or after the expiration of the 
forty days, the case differs from that of Chestnut v. Marsh,' at 
the very point on which that case turned. Nor is there any other 
portion of the chapter which we have discovered, bringing it 
within the principle of that case, wluoh is the well'recognieed 
rule in all the books." ' 

The rule is nowhere more clearly stated than by Chief Justice 
jS&iv, in Torrey v. Milbury,^ which was abo a tax case. 
" In • considering the various statutes regulating the as- [" 77] 
aessment of taxes, and the measures preliminary thereto, 
it is not always easy to distinguish which are conditions precedent 
to the legality and validity of the tax, and which are directory 
merely, and do not constitute conditions. One rule is very plain 
and well settled, that all those measures that are intended for the 
security of the citizen, for ensuring equality of taxation, and to 
caable every one to know with reasonable certainty for what polls 

' 14 111.223. to hold kdj requirement of > law miDe- 

* Wbecier t>. Chlc^a, 94 HI. lOG, lOB. cenu? to be complied with, hdIsh it be 

* SI Pidi. 64, 67. We commeiul In the inanireit the l^Ul&ture did not intend t« 
•atue connectiDa the riewi o[ LticU, Ch. impoie the coniequence which would nat- 
J., in Corbett *. Bndlej, T Ner. 106; uralt; follow from ■ non-compliance, or 
" When uij teqnlremcBt of a italate it which would remit from holding the re- 
bell) to be directorj, and therefore not qnirement mandatory or indiipensable. 
nuteriat tobe followed, ii ti upon the M- If it be clear thftt no pennltj waa intended 
•wnption that the legiilature itielf lo to be impo«ed (or a non-compliance, then, 
oonaidered it, and did not make the right ai a matter of coarte, it it but cwTjing 
coolemd dependent upon a compliance o&t the will of the legiilatnre to declare 
with the form preicribed for lecuring it. the sUlute in that retpect to be simplj 
It la upon Ihi* principle that the coortt directory. Bat if there be anything t« 
«Aen hold the time deiignaied in a itat Indicate the contrarr, a fhU compllanoe 
ntc, where a thing ii te be done, to be dl- with it moat be enfoiced." Bee alio Unr- 
wnetarj. No oanrt certain!; hu th« ri^t fiwd v. Omaha, 4 Sab. 830. 



by Google 



92 CONSTirUTIOKAL LUIITATI0H8. [OH. IV. 

and for what real and personal estate he is taxed, and for what 
all those who are liable with him are taxed, are conditions prece- 
dent ; and if thej are not obeerred, he is not legallj taxed ; and 
he may resist it in any of the modes authorized by law for con- 
testing the validity of the tax. But many regulations are made hj 
statutes designed for the information of assessors and officers, and 
intended to promote method, system, and uniformity in the modes 
of proceeding, a compliance or non-compliance with which does 
in no respect affect the r^hts of tax-paying citizens. These may 
be considered directory ; officers may be liable to legal animad- 
version, perhaps to punishment, for not observing them ; but yet 
their observance is not a condition precedent to the validity of 
the tax." 

We shall quote further only from a single other case upon this 
point. The Supreme Court of Wisconsin, in considering the va- 
lidity 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 
injury or wrong, nothing in the act itself, or in other acta relating 
to the same subject-matter, indicating that the legislature did not 
intend that it should rather be done after the time prescribed than 
not to be d^ne at all, there the courts assume that the 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 ai-e to be made use of 
in determining whether the provisions of a statute are mandatory 
or directory. Those directions which are not of the essence of the 
thing to be done, but which are given with a view merely 
[* 78] * to the proper, orderly, and prompt conduct of the busi- 
ness, and by a failure to obey which the rights of those 

> SUte «. Lean, Wii. 270, 282. ^ •talnte is laid to be mandaloir where 

ftarther, for the Tiew« of thit coDrt on the public IntereaU or rigliti ste concerned, 

tubject liere diMDued, Wendel e. Dur- and the public or third pereoni hare a, 

bin, 26 Wii. 890. Tlie general doctrine claim dejan that the power ihali be ex- 

of llie ciaes above quoted il approved and erdied. And aee Wiley v. Flourno]', 80 

followed In French v. Edwardi, 18 WalL Ark. 009 ; State Auditor «. Jackuia Co., 

606. In Law «. Dunham, 61 lie. sae, a 66 Ala. 143. 



by Google 



CH. IV.] CONSTBUCTIOH OF STATE CON8TITDTION8. 93 

intereated will not be prejudiced, are not commonly to be regarded 
as mandatorj ; and if tbe act is perfonned, but not id tbe time or 
in tbe precise mode indicated, it maj still be sufiScient, if tbat 
vbich ia done acoomplishea the snbstantial purpose of the statute.' 
Bat this rule presupposes tbat no negative words are employed iu 
the statute which expressly or by necessary implication forbid tbe 
doing of the act at any other time or in any other manner than as 
directed. Even as thus laid down and restricted, the doctrine is 
one to be applied with much circumspection ; for it is not to be 
denied tbat tbe courts have sometimes, in their anxiety to sustain 
the proceedings of carelesa or incompetent officers, gone very far 
in substituting a judicial view of what was essential for that de~ 
dared by the legislature.' 

Bat the courts tread upon very dangerous ground when tbey 
Tenture to apply the rules which distinguish directory and mandar 
toty statutes to the provisions of a constitution. Constitutions do 
not usually undertake to prescribe mere rules of proceeding, ex- 
cept when such rules are looked upon as essential to the thing to 
be done ; and tbey must then be regarded in the light of limita- 
ttons upon tbe power to be exercised. It is the province of an 
instrument of this solemn and permanent character to establish 
tiiose fundamental maxims, and fix those unvarying rules by 

> The foUowiDg, tn adiiitjon to thoM 4 Ind. 7 ; SUyton v. HalinKi, 7 Ind. 144 ; 

dted, are lome ol the catea in thii coun- New Orlcaoi v. St. Rnmn, 9 I«. An. ET3 ; 

trj in which ttatatei hare been declared Edwarda v. Jamea, 18 Tex. 52 ; State t>. 

director? only: Fond c Negni, 3 Maai. Click, 2 Ala. 26; Snvnge d. Walehe, 26 

»80; Williaman. School District, 21 Rck. Ala. 630 ; Sorchan c. Brooklyn, 62 N, T- 

75jatj of Lowell D. Hadley.SMet. 180; .139; People b. Tompkins, 64 N. Y. 6S; 

HoUand r. 0*p>od, 8 Vl. 276 ; Corllai r. Llmeatone Co. b. Rather, 48 Ala. 433 ; 

CorliM, 8 Vt. 373 ; People v. AUea, S Webtter b. French, 12 III. 302 ; McKune 

Wend. 4B6 ; Marchant f. Langworthy, 8 v. Weller, 11 Cal, 49 ; Stale i>. Co. Com- 

HUl, 64S ; Ex porit Heath, 8 Ilni, 42 ; miiilooera of Baltimore, 29 Md. 518 ; 

Pct^ r. HoUcy, 12 Wend. 481 ; Jackaon Ftj v. Booth, 19 Ohio St. 25 ; Whalin t>. 

». Toong, 5 Cow. 269 ; Striker r. Kelley, Macomb, 7fi III. 49 ; Hurtord v. Omaha, 4 

7Hi11,»; People e. Peek, 11 Wend. 601; Heb, 888 ; Lackawana Iron Co. u. Little 

Hatter of Hohawk and Hudaon Railroad Wolf, 3B Wig. 152; R. K. Co. u. Warren 

Co., 19 Wend. 185 ; People v. Sunkel, 9 Co., 10 Bu>h, 711 ; Grant n. Spencer, 1 

Johoi. 147; Qaler. Head, 2 Denio, 160; Hontaoa, 136. The liit might eaiily be 

Doaghtj V. Hope, 3 Denio, 249; Elmen- largely increaaed. 

A)rf e-Ha7or,&c.or New York,2fi Wend. ■ Bee tipon thU iubject the remarki 

0B2 ; Tbamei Uannfactnring Co. p. Utth- of Mr. Sedgwick in liia work on Stalntory 

nip, 7 Coon. 650 ; Colt v. Evei, 12 Conn, and Conttitntional Law, p. 375, and IhoM 

213 : People v. Doe, I Mich. 461 ; Parka of Hubbard, J„ in Briggt v. Qeorgta, 16 

V. Goodwin, 1 Dong. (Hich.>g6; Hickey Vt. 61. Alto aee Drjfua v. DridgM, 46 

■. Hioadale, 8 Hich. 267 ; People v. Hart- HiM. S47. 
wall, 13 Uch. C06i Stata p. HcQInley, 



by Google 



M OOHBHTUTIOirAL LUOTATIONS. [CH. IT. 

[* 79] which all * departments of the governmeat maet at all 
times shape their oonduot ; and if it desoenda to prescrib- 
ing mere rules of order in unessential matters, it is lowering the 
proper dignity of such an instrament, and usurping the proper 
province of ordinary legislation. We are not therefore to expect 
to find in a constitution provisions which the people, in adopting 
it, have not regarded as of high importance, and worthy to be 
embraced in an instrument which, for a time at leasts is to control 
alike the government and the governed, and to form a standard 
by which is to be measured the power which can be exercised as 
well by the delegate as by the sovereign people themselves. If 
directions are given respecting the times or modes of proceeding 
in which a power should be exercised, there is at least a strong' 
presainptioQ 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 that such directions are given to any 
otiier end. Especially when, as has been already said, it is but 
fair to presume that the people in their constitution have ex- 
pressed themselves in careful and measured terms, corresponding 
with the immense importance of the powers delegated, and with 
a view to leave as little as possible to implication.' 

There are some cases, however, where the doctrine of directory 
statutes has been applied to constitutional provisions ; but they 
are so plainly at variance with the weight of authority upou ihe 
precise points considered that we feel warranted in saying that 
the judicial decisions as they now stand do not sanction the ap- 
plication. In delivering the opinion of the New York Court of 
Appeals in one case, Mr. Jnstice WiUard had occasion to con- 
sider the constitutional provision, that -on the final passage of a 
bill the question shall be taken by ayes and noes, which shall be 
duly entered upon the journals; and he expressed the opinion that 
it was only direotory to the legislature.' The remark was obiter 

' 8«e Sut« B. Johnion, 20 Ark. 281. behtg restrietire upon the poweri of Iht 

■ Wolcott V. Wigton, 7 Ind. 44 ; per levenil departmenti of gorsmTnent, it i* 

Bnmmm, J., in People v. Pardy, 2 Hilt, dlffli^t to comprehend how its providoiM 

81:0reeiioitIeTa»nshipD. Black, Slnd. can be Tef;>rded M nerel; dlrectorr." 

fiflfl; Opinions of Judges, 18 Me. 468. See NitMtoH.Ch.S., in Cannon e. MsthM, 8 

People V. Lawrence, 86 Barb. 177 ; State Heigk. 604, 617. 

v. Johnton, 26 Ark. 281. " The enential ■ People v. Superriton of Chenango, 

nature and object of coutitnticiial law 8 N. ¥. 317. 



by Google 



CH. IF.] OONSTBCOTION OF STATE CCMSTITXTTIONa. 95 

dietHm, aa the oonrt had already decided that the provision had 
been fullj complied with ; and thoee familiar with the reasons 
which have induced the insertion of this clause in our 
* constitutions will not readily concede that its sole design [* 80] 
was to establish a mere rule of order for legislative pro- 
ceedings which might be followed or not at discretion. Mr. Chief 
Justice Tkurman, of Ohio, in a case not oftlling for a diHCussion of 
the subject, has coosidered a statute whose validity was assailed 
(m 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 ioclade the authoritff in which the law-making power resides, or 
the Dumher of votes a bill mast receive to become a law. That 
the power to make laws is rested id the assembly alone, and that 
no act has any force that was not passed l^ the number of votes 
required by the constitution, are nearly, or quite, self-evident 
propositions. Tliese essentials reUte to the authority by which, 
nther than the mode in which, laws are to bo made. Now to 
seeore the careful exercise of this power, and for otlier good rea- 
sons, the constitution prescribes or rect^izes certain things to be 
done in the enactment of laws, which things form a coarse or mode 
of legUative procedure. Thus we find, inter alia, the provision 
before quoted that every hill shall be fully and distinctly read 
on. three different days, unless, in case of uigeocy, three-fourths 
of the house in which it shall he pending shall dispense with this 
role. Tliia ia an importuit provision without doubt, but, never- 
theless, there is much reason for saying that it is merely directory 
in ita character, and that its observance by the assembly is 
secured by their sense of duty and official oaths, and not by any 
mpervisory power of tjie courts. Any other construction, we 
incUne to tliink, would lead to very absurd and alarming conse- 
qaeoces. If it is in the power of every court (and if one has the 
power, every one has it) to inquire whether a bill that passed the 
assembly was ' fully' and 'distinctly ' read three times in each 
hoQse, and to hold it invalid if, upon any reading, a word was acci- 
dentally omitted, or the reading was indistinct, it would obviously 
be imposable to know what ia the statute law of the State. 
Now the requiution that bills shall be fuUy and distinctly read is 
jast aa imperative as that requiring them to be read three times ; 
sod as both relate to the mode of procedure merely, it would be 
difficalt to find any sufficient reason why a violation of one of 



by Google 



96 coNSTrnmoNAL limitations. [ca it. 

them woald be less total to an act than a violation of the 
other." ' 

A requirement that a law shall be read dUtinctly, 
[• 81] whether • mandatory or directory, is, from the Tery na- 
ture of the case, addressed to the judgment of the legis- 
lative body, whose decision as to what reading is sufficiently 
distinct to be a compliance cannot be subject to review. But in 
the absence of authority to the contrary, we should not have 
supposed that the requirement of three successive readings on 
different days stood upon the same footing.^ 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 oth- 
erwise. The requirement has an important purpose, in making 
legislators proceed in their action with caution and deliberation ; 
and there cannot often be difficulty in ascertaining from the leg- 
islative records themselves if the constitution has been violated 
in this particular. There is, therefore, no inherent difficulty in 
the question being reached and passed upon by the courts in the 
ordinary mode, if it is decided that the constitution intends 
legislation shall be reached through the three readings, and not 
otherwise. 

The opinion above quoted was recognized as law by the Su- 
preme Court of Ohio in a case soon after decided. In that case 
the court proceed to say : *' The . . . provision . . . that no bill 
shall contain more than one subject, which shall be clearly ex- 
pressed in its title, is also made a permanent rule in the introduc- 
tion and passage of bills through the houses. The subject of the 
bill is required to be clearly expressed in the title for the purpose 
of advbing 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 the General Assembly, it is manifestly 

1 Miller D. Stite, 3 Ohio 3L 476, 463. * Se« People r. Campbell, 8 HI. 400; 

The proTigion far three re^dinga on lep- McCnlloch t>. Stftte, 11 Ind. 424 ; Cannon 

urate da;a doea not apply to amendment* v. Hatliei, 8 Heiik. 604 ; Spangler v. Jao- 

made in the profrreaa at the bill throQRh nbj, 14 III. 297 ; People c. Stame, 36 DL 

the hooica. People v. Wallace, 70 III. CSa 121 ; yiyta v. Lyndi, OS Ul. IW. 



by Google 



CH. IV .3 CONSTBDCTION OP 8TATB COltSTlTDTlONa. 97 

an important one. But if it was intended to effect any practical 
object for the beuefit of the people iu the examination, construc- 
tion, or operation of act» pasHed and pablished, 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 auch a purpose the Constitutional Convention 
adopted the rule under conaideration would impute to them a 
most minute provision for a very imperfect headiug of the 
chapters of laws and their subdivision. This * provision [* 82] 
being intended to operate upon bills in their prepress 
through the General Assembly, it must be held to be directory 
only. It relates to bills, and not to acts. It would be most mis- 
chievous in practice to make the validity of every law depend upon 
the judgment of every judicial tribunal of the State, as to whether 
an act or a bill contained more than one subject, or whether this 
one subject was clearly expressed in the title of the act or bill. 
Such a question would be decided according to the mental pre- 
ei^on and mental discipline of each justice of the peace and judge. 
No practical benefit could arise from such inquiries. We are there- 
fore of the opinion that in general the only safeguard against the 
violation of these rules of the houses is their regard for, and their 
oalii to support, the constitution of the State. We say, in ffen- 
eralt the only safeguard ; for whether a manifestly gross and 
fraudulent violation of these rules might authorize the court to 
prODOunce a law unconstitutional, it is unnecessary to determine. 
It is to be presumed no such case will ever occur." ' 

I Firo a. ITicholton, Ohio St 176, conclade, " (tg«in«t tlie peace nnd dl^ty 

179. 8«B i.lao the ewe of Wuhington v. of the people of WeK Virginia," wm held 

Page, 4 C»l. 888, for (imlUr Tlew*. In to Lemoni b. People, 4 W. V». 755, b. c. 1 

Bill V. Borland, 40 Hiu. 018, a provitioi) Green Cr. H. 606, to be mandatorj, mhI 

teqniring of all offlvert an oath toinpporE an indictment which complied with it, 

tlie conititnlion waa lield not to invali- except in abbreviating the name ot the 

date tbeactaof <Acia]swhohtid neglected State, waa held bad. 

to take aoch an oath. And in Hcf lierton v. A itatate which ii paised In obedience 

Leonard, 39 Md. 377, the proviiion that to a conatitutional requirement must be 

tbe ityle of all lair* ahsll be, '■ Be It en- held mandator]'. Stale v. Pierce, S6 Wi«. 

acted hj the General Auembl; of MaTf- 93, M. 

land," wai held directory. Similar mlinga It a conititntion proTidea "that when 

were made in Cape GlrardeaQii.Hile7,G'2 an; bill i« prewnted for an act of in- 

Ho. 424; St- Looit c, Patler,fi2 Ho.SlS; corporation, it ihall be contlnaed until 

Swano r. Bock, 40 MJii. 268. another election of members of Auemblj 

DimcU; llie oppoaite ha* I>een Iteld lit thall hare taken place and public notice 

Kerada. State i>. Bogen, 10 Hev. 2G0. of the pendency thereof giTcn, it doea 

So a nqaircmenl tliai li>dictinHili (hall not oeoettaril/ follow that the orgaoiia- 



by Google 



98 CONBTITUTIONAL LIMtTATIOHS. [CH. IV, 

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 aa to make the provision mandatoiy even in a statute. 
But we shall not enter upon that subject here, as elsewhere we 
shall have occasion to refer to decisions made by the highest 
judicial tribunals in nearly all the States, recognizing similar 
provisions as mandatory, and to be enforced by the courts. And 
we concur fully in what was said by Mr. Justice Emmot in speak- 
ing of this very proviMon, that '* it will be found upon full con- 
sideration to he difficult to treat any constitutional provision as 
merely directory and not imperative." ' And with what was said 
by Mr. Justice Lumpkin, as to the duty of the courts: "It has 
been suggested that the prohibition in the seventeenth section of 
the first article of the constitution, ' Nor shall any law or ordi- 
nance pass containing any matter different from what is expressed 
in the title thereof,' is directory only to the legislative and execu- 
tive or law-making departments of the government. But we do 
not so understand it. On the contrary, we consider it as 
. [* 88] much a * matter of judicial cognizance as any other pro- 
vision in that instrument. If the courts would refuse to 
execute a law suspending the writ of haheaa corpus when the pub- 
lic safety did not require it, a law violatory of the &eedom of the 
press or trial by jury, neither would they enforce a statute which 
contained matter different from what was expressed in the title 
thereof." * 

Self-executing Provitiont, 

But although none of the provisions of a constitution are 
to be looked upon aa immaterial or merely advisory, there 
are some which, from the nature of the case, are as incapable 
of compulsory enforcement as are directory provisions in gen- 

tloD Dnder the charter U not m to all a corpor>tk>ii de/tuioor dt jure. Ibid." 

practical paquiei valid. The pro*isioii UcClinch r. Sturgia, T2 Me. 28B, 29S. 

» directoTT to the AnetnUy.and id the ' Peoplei'.LBwreiiM,36Bftrb.l7T,186. 

abaence of maj dann fortiidding the en- * Protlio n. Orr, 12 Ga. 86. See alwi 

Bctment, doM not nSect the oorponitori Opininni of Jadgea, IB Me. 468 ; Lidiana 

nnleaa the Sute itself inter*ene». Whit- Central Railroad Co. t>. folts, T Ind. 681 ; 

nej f. Wrmui, 101 U. 8. 892, 897. The Feiple v. 8C«rne, 36 IIL 121 ; State v. 

State ma}' mire candlliona, and lo long Hllter, 46 Mo. 19G ; Weaver b. Lapilej, 

aa the State raite* no objection it ia 48 Ala. 224 ; Nonguea ir. Douglaaa, 7 Ca). 

immaterial to other paitiea whether it ia 06 ; Slate v. HcCann, 4 I««, 1. 



by Google 



CH. IV.] CONSTBDCnON OV STATE OONSTmJTIOtTB. ' 99 

enl.* The reason is that, while the purpose may be to 
establidk rights or to impose duties, they do not in and of 
themaeWes constitute a sufficient rule by means of which such 
right may be protected or such duty enforced. In such cases, 
before the constitutional provision can be made effectual, supple- 
mental legislation most be had ; and the provision may be in its 
nature mandatory to the legislature to enaot the needful legisla- 
tion, though back of it there lies do authority to enforce the 
command. Sometimes the oonstitutioa in terms requires the 
I^islature to enact laws on a particular subject ; and here it is 
obvious that the requirement has only a moral force : the legisla- 
ture ought to obey it ; but the right intended to be given is only 
assured when the legislation is Toluntarilyenacted.* Illustrations 
may be found in constitutional proviuons requiring the legislature 
to provide by law uniform and just rules for the assessment and 
collection of taxes ; these must lie dormant until the legielatioa 
is had ;* they do not displace the law previously in force, though 
the purpose may be manifest to do away with it by the legisUtion 
required.* So, however plainly the constitution may recognize 
the right to appropriate private property tor the general bene- 
fit, the appropriation cannot be made until the law has pointed 
ont the cases, and given the means by which compensation may 
be assured.' A different illustration is afforded by the new 
amendments to the federal Constitution. The fifteenth amend- 
ment provides that " the right of eitlzena of the United States 
to vote shall not be denied or abridged by the United States, or 
by any State, on account of race, color, or previous condition of 
•ervitude." To this extent it is self-executing, and of its own 
force it abolishes all distinctions in suffrage based on the particu- 
tora enumerated. But when it further provides that *' Congress 
shall have power to enforce this article by appropriate legislation," 

> ThetB «re ilao nunj which merely v. Cook, £6 UIm. 40; CofttMritla Om Co. 

eontraipUle the exerdte of powen con- v. Cheiter Co., 97 Fenn. St. V6. 
fciTBd, when the legiilmtora Id iti dlicre- ' Moan, }., in SuperriMm of Dodd- 

tioa iImU deem It wIm; like the prarl- ridgec.Bt(»it,9W.Vii. 703,706; Cahooo 

tioiithat "aait* msj be bronght agmiiut v. Common wealth, SOOiutt. 733; Lehifrh 

tlM Stata in (och eonrti u may be bj Iron Co. v. Lower MaoniiBie, 81 Penn. St 

bw provided." Et parti Stale, 62 Ala. 482. 
UL * Lamb u. Lane, 4 Ohio St. 167. Bee 

* Sduwl Bouid D. Patten, 68 Uo. 444. School Board v. Patten, 62 Mo. 444 ; 

* WiUiuD* «. Detroit, 3 Hich. 680; Hyen v. Engliih, Cal. 841 ; OfUinwatpr 
Fcopb V. Z^ke Co., SS CaL 487; Bowie v. UlnUalppi, &<:. R. R. Co., IS 111. 1 ; 
». LMt.24 La. Aim.8Ui HlMiadpptMUla Ciaro,«e. B. R. Co. a. Trout, 82 Ark. 17. 



by Google 



100 CONSTirOTIOHAL LIMITATIONS. [CH. IV. 

it iudicates the possibility that the rule may Dot be found BufB- 
cieutly comprehensive or particular to protect fully this right to 
equal suffice, and that legislation may be found necessary for 
that purpose.' Other proTisions are completely self-execating, 
and manifestly contemplate no legislation whtitever to give them 
full force and operation.^ 

A constitutional provision may be said to be self-executing if 
it supplies a Buffioient rule by means of which the right given may 
be enjoyed and protected, or the duty imposed may be enforced ; ^ 
and it is not self-executing when it merely indicates principles, 
without laying down rules by means of which thoae principles 
may be given the force of law. Thus, a constitution may very 
clearly require county and town government ; but if it fails to 
indicate its range, and to provide proper machinery, it is not in 
this particular self-executing, and legislatioa is essential.* Rights 
in such a case may lie dormant until statutes shall provide for 
them, though in so far as any distinct provision is made which by 
itself ia capable of enforcement, it is law, and all supplementary 
legislation must be in harmony with it. 

The provisions exempting homesteads from forced sale for the 
satisfaction of debts furnish many illustrations of self-executing 
provisions, and also of those which are not self-executing. Where, 
as in California, the constitution declares that "the legislature 
shall protect by law from forced sale a certain portion of the 
homestead and other property of all heads of families," the de- 
pendence of the provision on subsequent legislative action is mani- 

1 United States f . ReeK, 92 U. S. it«p. 64 Mo. 526 ; Miller v. Max, 55 AU. 822 ; 

214. Any conititntional provision ia (elf- Hills v. CliicagD, GO UL 86 ; Kiue v. Det- 

execating to tliti extent, that everything enbaagb, 64 III. 291 ; People o. Hoge, 55 

done in violation of it is raid. Brien i>. Cal. 612 ; Kowtm v. Ranneli, 5 How. 134 ; 

Williamson, 8 MIsb. 14. A proiiilon that Friedman n. Mathei, 8 Heiek. 488 ; John- 

"jtiie legislature shall have no power to son v. Parkersburgh, 16 W. V«, 403; 

authorize lotteries for any purpose, and a. c. 3T Am. Rep. TT9. 
shall pass laws to prohibit the sate of lot- * Friedman o. Malhes, 8 Heitk. 488 ; 

tei7 tickets in this State," was held tohe State e. Wetton, 4 Neb. 216 ; People v. 

of iuelf a prohibition of lotteries. Bass Hoge, 65 Cal. 612 ; Ewing e. Orville M. 

1.. Nashville, Meigs, 421 ; Terger v. Rains, Co., 66 Cal. 649 ; Hills ». Chicago, 64 El. 

4 Humph. 269. All negatlre or prohlb- B6. 

itlve provisions in a coDttltntion are self- < Wall,£rz;n7f«,:48Cal.2T9i Attoraer- 

executing. Law w- People, 87 111. 385. General v. Common Council of Detroit, 

* See People v. Bradle]'. 60 III. 890 ; 29 Mich. 108. For exemption provisions. 

People V. McRobertt, 62 III. 88; Mitchell not self-executing, see Oreen r. Aker, 11 

v. Illinois, «c. Coal Co., 68 III. 286; Ind. 228 ; Speidcl e. Schlosser, 18 W. Va- 

Beeclier v. Baldy, 7 Mich. 488 ; People 686. 
V. Ramsey, 64 lU. 41 ; StaU b. HoUadaj', 



by Google 



CH. IT. "J COSSTEUCTION OP STATE CONSTITUTIONS. 101 

feat. But where, as in some other States, the constitution defines 
the extent, in acres or amonnt, that shall he deemed to constitute 
It homestead, and expressly exempts from any forced sale what 
is thus defined, a rule is prescribed which is capable of enforce- 
ment. Perhaps even in such cases, legislation may be desirable, 
by way of providing convenient remedies for the protection of the 
right secured, or of regulating the claim of the right so that its 
exact limits may be known and understood ; but all such legisla- 
tion must be subordinate to the constitutional provision, and in 
furtherance of its purpose, and must not in any particular attempt 
to narrow or embarrass it. The provision of a constitution which 
defineti a homestead and exempts it from forced sale ia self* 
executing, at least to thia extent, that, though it may admit of 
supplementary legislation in particulani where in itself it is not as 
complete as may be desirable, it will override and nullify what- 
ever legislation, either prior or subsequent, would defeat or limit 
the homestead which is thus defined and secured. 

We have thus indicated some of the rules which we think are 
to be observed in the oonstructiou 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 attentiou is 
sometimes giveu, and which savor rather of the closet than of 
practical lifa Our observation would lead us to the conclusion 
that they are more often resorted to as aids in ingenious attempts 
to make the constitution seem to say what it does not, than with 
a view to make that instrument express its real intent. All ex- 
ternal aids, and especially all arintrary rules, applied to instru- 
meats of this popular character, are of very uncertain value ; and 
we do not regard it as out of place to repeat here what we have 
had occasion already to say in the course of this chapter, that 
they are to be made use of with heiutation, and only with much 
etroumspeotion.' 

1 Be* People r. CowIm, 18 N. T. 8G0, lead lu wide from Cha troa mdm and 

rtiJtIauam, J. ; Teoiple t>. Head, 1 Tt 686, iplrit of the tD*tn)nient, nor, on the other, 

SM.per Wiiliamt,].; People o. Fancher, toapptj' tottinchnarroii^andcoiutTaiiied 

M S. T- 391. " Ja MMntroing to Import- vieiri as maj exclude the teal object ind 

ant an initrnineDt ai a coutltuUoD, etpe- intent of thoie who framed it. We are 

dally [hoM parta which atfect the rital to snppote that the anthon of inch an 

priadple ol a i«pahUcan government, the Instmment had a thoroagh knowledge of 

electiTefrmnchiie, or the manner of exer- the force and extent of the worda they 

anng It, we are not, on the one hand, to employ ; that they had a beneficial end 

iodD^iagenknuipecnlaUoDi whichmay and pnrpoee in view; and that, more ea- 



by Google 



lost CONSTTTDTIOHAI. UUtTAIIOHB. [OH. IT. 

padrilj in taj tpptreat reatrictlon vpm Ibe tben exiBtiii{ itate of the comnmnltj, 

the mode of exercuing the right of ml- and at the ume time captible of being 

frage, thers «m uime eziatiDg or aoUd- expanded to embrace more eitenu* e 

paied eTil whkfa it wa* Uieir pnrpoM to niatiooa, ahonldnot berettraiiwdtotbeir 

aToid. ir An enlarged HnM of anj par- more obvioiu unA immediate lenae, if, 

ticnlarftHiDofeipreMionBhouldbenccea- coTuistentlj with the geoeral object of 

tuj to accompUah n gtckt an object m the aotbon and the troe piindplea of the 

aconveoient exerciaeof the foDdamental compact, they can be extended to other 

priTilege or right, — that of election, — relations and circumitancei which an 

each aenw moit be attributed. We an improTed itate o[ Ktcietf maj prodore. 

to inppote that Ihoie who were del^ated ^ kanl u titera hasrtt n coiiiet la a fa- 

l« the great buiineti of dlttrjbnting iIm miliar maxim of tlie law. The letter kilt 

power* which emanated from tlie toT- etfa, bnt the iplrit maketh ali*e, ii the 

ereigntf of tlw people, and to the eetab- more fon3l>le expreiaion of Scriptnre." 

UtfameDl of the rtile* for the perpettwl Parher, Ch. J., in Henahaw a. Foater, 

•ecnri^ of the right* of peraon and prop- Fick. 312, 316. There ai« tome itrj per- 

ertj, had the wudom to adapt their tinent and fordble temarki by Mr. Jni- 

language to fntnie aa well •• exiatiDf ti«e M2itr on thia general tabject in 

•mergenmet, ao that woida competent to Woodaon c. Muidock, 22 WaU. 361, SSL 



by Google 



OH. T.] POWERS XZSB0I8BD BT LBQI8I.AT1VB DEPABTUBHT. 108 



•CHAPTER V. [-86] 

OF THB VaWVSa WHICH THB LBOISLAHTB DKPABTHENT IS^Y 

BZBBOISB. 

In consideriDg the powera which may be exercised by the l^is- 
Utive department of one of the American States, it is natural that 
we should recur 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 usagea 
and customs, or parliamentary common law, as well as the 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 legislative department in America by 
the power of the like department in Britain ; and to concede 
without reflection that whatever the legislature of the country 
from which we derive our laws cau do, may also be done by the 
department created for the exercise of legislative authority in 
this country. But to guard against being misled by a comparison 
between the two, we most bear in mind the important distinction 
already pointed out, that with the Parliament rests practically 
the sovere^ty 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 l^islatures 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 
OD all sides by important limitations, some of which are imposed 
in express terms, and others by implications which are equally 
iiuperaUve. 

** The power and jurisdiction of Parliament, says Sir Edteard 
Coie,' is BO transcendent and absolute, that it cannot be confined, 
eiUier for persons or causes, within any bounds. And of this high 
court it may truly be said : * Si antiquitatem spectes, eat vetustis- 



by Google 



104 CONSTITirTIOHAL LDflTATIOMS. [CH. V. 

sima ; bi dignitatem, est honoratiasima ; bi jurudictionem, est ca- 
pacisHima.' It hath sovereign and uncontrolled authority in the 
making, confirming, enlarging, restraining, abrogating, repealing, 

reviving, and expounding of lawa, concerning matters of all 
[* 86J posftible denominations, ecclesiastical or temporal, *civil, 

military, maritime, or criminal; this being the place where 
that absolute despotic power, which must in all governments re- 
side somewhere, is intrusted by the constitution of these king- 
doms. All mischiefs and grievances, operations and remedies, that 
transcend the ordinary course of the laws, are within the reach o£ 
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 JIT. It can alter the established religion of the land, 
as was done in a variety of instances, in the reigns of King Henry 
yill. and his three children. It can change and create afresh 
even the constitution of the kingdom and of Parliaments them- 
selves, as was done by the Act of Union, and the several statutes 
for triennial and septennial elections. It can, in short, do every 
thing that is not naturally impossible ; and therefore some have 
not uorupled to call its power, by a figure rather too bold, the 
omnipotence of Parliament. True it is, that what the Parliament 
doth, no authority upon earth can undo ; so that it is a matter 
most essential to the liberties of this kingdom that such members 
be delegated to this important trust aa are most eminent for their 
probity, their fortitude, and their knowledge; for it was a known 
apothegm of the great Lord Treasurer, Burleigh, Hhat England 
could never be ruined but by a Parliament ; ' and as Sir Matthew 
Sale observes : ' This being the highest and greatest court, over 
which none other can have jurisdiction in the kingdom, if by any 
means a mi^overnment should anyway fall upon it, the subjects 
of this kingdom are left without all manner of remedy.' " ' 



I 1 BI. Com. 160; Austin on Jariipra- conitttution, and itrictly (nbordinste to 

dence, Lee. 0; Fitcliel on EngllBh Con- it. It maj p«rtidp>Ie in making chingei 

lUtution, b. 7, ch. 7. Tlie Britiili legiiU- aa the conititution Itaelf may provide, bat 

ture ii above the conatltation, and moulds not otherwiM, and conBtltulional prin- 

and modiflei it at diicretion aa public ez- ciplei which the Britiih Parliament will 

igenciet and the need« of the lime may deal with at ihall aeem needtbl are in- 

require. But in the American ifBtem lach flexibl* lawt In America until the people, 

R thing as unlimited power ii unknown, under the forma provided for conatitn- 

tjoan AuDciation n. Topeks, SO Wall, tionalamendmenta.ieeflttochangetlwn). 

S5S, 6flS; Campbell'! caie, 2 Bland Cb. Such radical changei, tor example, aa ara 

209 ; a. c. SO Am. Dec. S60. Ever; Am- now being made in the Iriah land lawt, 

erivan legialatuie it the creatoM of tbe and inch forced modification la contract*, 



by Google 



CB. T.] POWBBS BXBBCiaBD BT LEQISLATIVB DBPABTHENT. 105 

The strong laagn^ in which the complete jurisdiction of Par- 
liament is here described is certainly inspplicable to any authority 
in the American States, unless it be to the people of the States 
when met in their primary capacity for the formation of their fun< 
damental law ; and even then there rest upon them the restraints 
of the Constitution of the United States, which bind them as ab- 
solutely as they do the governments which they create. It be- 
comes important, therefore, to ascertain in what respect the State 
legislatures resemble the Parliament in the powers they ex- 
ercise, and how fJEtr we may extend the comparison without 
losiog 8^;ht of the fundamental ideas and principles of the 
American system. 

* The first and most notable difference ia that to which [* 87] 
we have already alluded, and which springa from the dif- 
ferent theory on which the British Constitution rests. So long as 
the Parliament is recognized as rightfully exercising the sovereign 
authority of the country, it is evident that the resemblance be- 
tween it and American legislatures in regard to their ultimate 
powers cannot be traced very far. The American legislatures 
only exercise a certain portion of the sovereign power. The sove- 
reignty is in the people ; ' and the legislatures which they have 
created are only to dischai-ge a trust of which they have been 
made a depositary, but which has been placed in their hands with 
well-defined restrictions. 

Upon this ditTerence it is to be observed, that while Parliament, 
to any extent it may choose, may exercise judicial authority, one 
of the moat noticeable features in American constitutional law is 
the care which has been taken to separate legislative, executive, 
and judicial functions. It has evidently been the intention of the 
people in every State that the exercise of each should rest with a 
tieparate department. The different claasea of power have been 
apportioned to different departments ; and as all derive their 
authority from the same instrument, there is an implied exclusion 
of each department Irom exercising the functions conferred upon 
the others. 

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

1. In creating a legislative department and conferring upon it 

wonld be impoMlble In the United Slatei wlthont k change in both federal and State 
conMitniioiM. >Aiit«^*28. 



by Google 



106 COMSTITDTIOBAL LOUTATIONS. [OB. V. 

thn legislKtive power, the people must be uuderstood to have 
conferred the full aad complete power as it rest« in, and maj 
be exercised by, the BOvereigD power of any country, subject 
only to such restrictioDs as they may bare seen fit to impose, 
and to the limitations which are contained in the Constitution 
of the United States. The legislative department is not mode a 
special agency for the exercise of specifically defined legislaUve 
powers, but is intrusted 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 funo- 
tions, except in those cases, warranted by parliamentary usage, 
where they arc incidental, necessary, or proper to the exercise of 
legislative authority, or where the constitution itself, in specified 
cases, may expressly permit it.* Executive power is so intimately 
connected with legislative, that it is not easy to draw a line of 
separation ; but the grant of the judicial power to the de- 
[• 88] partment *createdfor the purpose of exercising it must be 
regarded as an exclusive grant, covering the whole power, 
subject only to the limitations which the constitutions impose, and 
to the incidental exceptions before referred to.' While, therefore, 
the American le^slatures may .exercise the legislative powers 
which the Parliament of Great Britain wields, except as restric- 
tioiis are imposed, they are at the same time excluded from other 
functions which may be, and sometimes habitually are, exercised 
by the Parliament. 

"The people in framing the constitution," says Denio, Ch. J., 
" committed to the legislature the whole law-making power of the 
State, which they did not expressly or impliedly withhold. Plen- 
ary power in the legislature, for all purposes of civil government, 
is the rule. A prohibition to exercise a particular power is an ex- 
ception, la inquiring, therefore, whether a given statute is con- 
stitutional, 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 legis- 
lative power contained in the instrument. The first article lays 
down the ancient limitations which have always been considered 
essential in a constitutional government, whether monarchial or 
popular ; aud there are scattered through the instrument a few 

' 8m|»»(, pii.«98to*114, "STi i 8m pM, p. « 00, note. 



by Google 



OH. v.] POWBK8 XZBBOISED BT LEOIBLATITB DBPABTMXin. 107 

otfaer provisions in restraint of legitdstire authority. Bat the 
affirmative prescriptions and ttie general arraDgements of the 
constitutioD are far more fruitful of restraints upon the legisla- 
ture. Every positive direction contains an implication agiunat 
tDfthing contrary to it, or which would frustrate or disappoint 
the purpose of that provision. The frame of the government, the 
gtBot of legislative power itself, the organization of the esecuUve 
authority, the erection of the piincupal courts of justice, create 
implied limitations upon the law-making authority as sbnng as 
though a negative was expressed in each instance ; but indepen- 
dently of these restraints, express or implied, every subject within 
ttie scope of civil government is liable to be dealt vnth by iho 
l^fidature." * 

" It has never been questioned, so fitr as I know " says Redfield, 
Ch. J., " that the American legislatures have the same unlimited 
power in regard to legislation which resides in the British Parlia- 
ment, 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 o^anizationa of the Ameri- 
can States. We cannot well comprehend how, upon principle, it 
should be otherwise. The people must, of course, possess all legis- 
lative power originally. They have committed this in the most 
general and unlimited manner to the several State legislatures, 
saving only saoh restrictions as are imposed by the Constitution of 
Uie United States, or of the particular State in question." > 

"I entertain no doubt," says Comttoek, J., " that, aside from 
the special limitataous of the constitution, the l^Lslature cannot 
exercise powers which are in their nature essentially judicial or 
executive. These are, by the constitution, diiitributed to other 
departments of the government. It is only the* legislative power' 
which is vested in the senate and assembly. But where the con- 

1 People r. IHaper, 16 N. T. 532, 64a Btate v. Beid, 1 Ala. 012, ■. a. 86 Am. 

* Thorpe d. Batland k Burlinglon Rail- Dec. 44 ; Andrewa r. State, 3 Heiik. 166 ; 

RMd Co., 27 Yt 140, 142 See alto A<lanu KnozTille, Ac. R. a Cn. ■>. Hicki, 9 Bu. 

V. Howe, 14 Man. 340, s. c. 14 Am. Dec. 443; Lewu'i Appeal, 67 Penn. St 15S; 

ai6; People D.Rucker, 6 CoL 466; Leg- Walker d. Cincinnati. 21 Oliio St. 14; 

sett B. Hunter, 19 N. Y. 446 ; Cochran «. People v. Wright, 70 III. S88. That the 

Tan 8011*7,20 Wend. 86G; People D.Mor- nile as to the extent of legislative power 

nil, 31 Wend. 663 ; Sean v. CottreU, 6 is substantially the same in Canada, lee 

Ifich. 261 ; Beachamp v. Stale, 6 Blackf. Talin v. Langlois, S Can. Snp. Ct. 1 ; 

»B ; Haion v. Wait, 6 111. 127 ; People v. Msyor, 4c. v. The Queer, 8 Can. Sop. Ct. 

SBpervlion of Oninge, 27 Barb. 676 ; Tay- 606. 
Vwv. Poner,4 Hill, 140, per Awwm, J. ; 



by Google 



108 CONSTITtrriOSAL LIMITATI01T8. [CH. V. 

Btitution 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 limita of 
this power. Chief Justice Mamhalt 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, alleged to be founded in natural reason or inalienable righta, 
but subversive of the just and necessary powers of government, 
attract the belief of considerable classes of men, and when too 
much reverence for government and law is certainly among the 
least of the perils to which our institutions are exposed. I am 
reluctant to enter upon this field of inquiry, satisfied, as I am, 
that no rule can be lud down in terms which may not contain the 
germ of great mischief to society, by giving to private opinion and 
speculation a license to oppose tbemselres to the just and legiti- 
mate powers of government." ' 

Other judicial opinions in great number might be cited in 
support of the same general doctriue ; but as there will 
[* 90] be 'occasion to refer to them elsewhere when the circum- 
stances under which a statute may be declared uncon- 
stitational are considered, we refrain from further references in 
tiiis place.' Nor shall we enter upon a disoussion of the question 
suggested by Chief Justice Marshall as above quoted ; * since, 

1 Fletcber n. Peck, 6 Cranch, ST, ISS. sioD of TiLQner, 22 La. Ann. 90; Qongh 

* Wjnehuner i>. People, 13 N. Y. STS, v. Dnnej, 27 Wis. 11» ; Tin Slyke c. Inf. 

SQl. Co., SO WU. 300; ■. o. 20 Am. Rep GO; 

■ Se« DOt p. * leS Mid cuet cited In Aleiuider d. Bennett, 60 N. Y. 204 ; Peo- 

note*. ' pie D. Young, 72 III. Hit. But • |[ener»l 

» The power to diitribnte the jndiciBl pro»i»ion in the conititatloQ for the dii- 

power. except lo far u that ha* been done tribution of the judicial power, not reter- 

by the comlilution, re«M with the leRiiia- ring to coorU-martial, would not be beld 

ture : Commonwealth v. Hippie, 69 Penn. to forbid inch courti by implication. Peo- 

8t 9 : State u. New Bnin»wick, 42 N. J. pie v. Daniell, 60 N. Y. 271. Nor would it 

61 ; Bute v. Brown, 71 Mo. «* : Jackwn be beld to embrace admiaiatt«tive func- 

0. Nimroo, 3 Lea, 608 ; but when the con- tion» of a guati judicial nature, inch at 

ititution ba» conferrod it upon certain the aisewment of property tor taxation, 

ipedfled conrti, thit miut be nndentood SuieD.CommlMlonenoIOranbyCounty, 

to embrnce the whole judicial power, and 7 Ner. 892, and ca«ei cited. See Auditor 

the Icgiilature cannot ve«t any portion of of State v. Atchiion, &c. R, R. Co., 6 Ran. 

it eliewhere. Greenough v. Gfeenotigh, 600 ; a. 0. 7 Am. Rep, 676. It ii not com- 

11 Penn. St. 489; Slate e. Maynard, U petent to confer apon the court* the power 

HI. 420 ; Gibion t-. Emerton, 7 Ark. 172 ; to tax. Monday v. Bahway, 48 N. J. 

Chandler v. Natb, 6 Hich. 409; Sncoe^ 88S. 



by Google 



CH. T.] POWBES EXBECISBD BT LEGISLATIVE DBPAETMEaiT. 109 

however interesting it may be as an abstract question, it ia made 
practically unimportant by the careful sepaiation of powers and 
duties between the several departments of the government which 
has been made by each of the State constitutions. Had no such 
separation been made, the disposal of executive and judicial duties 
must have devolved upon the department vested with the general 
authority to make laws ; ' but assuming them to be apportioned 
already, we are only at liberty to liken the power of the State 
l^islature to that of the Parliament, when it confines its action 
to an exercise of legislative functions ; and such authority as is in 
its nature either executive or judicial is beyond its constitutional 
powers, with the few exceptions to which we have already referred. 

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

The legislative power we understand to be the autliority, under 
the constitution, to make laws, and to alter and repeal them. 
Laws, in the sense in which the word is here employed, are rules 
of civil conduct, or statutes, which the legislative will has pre- 
scribed. "■ The laws of a State," observes Mr. Justice Story, 
" are more usually understood to mean the rules and enactments 
promulgated by the legislative authority thereof, or long- 
established local customs having * the force of laws." ' [* 91] 
"The diCFerence between the departments undoubtedly 
is, that the 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 what the existing law is in relation to some 
existing thing already done or happened, while the other is a 
predetermioation of what the law shall be for the regulation of 

I Calder e. Boll, 2 Root, 860. ana 3 Soalhud.lOWhett-M; perf^i'KMn.Ch. J., 

DaU. SS6 ; Rdh v. Whitman, 6 C>1. 801 ; in GreenoDgh v. Greenongh, 11 Penn. St. 

Snithr. Judge, 17 Cal. 547; perPoiMrMM, 4M. 6ce Ooremor v. Porter, 7 Humph. 

J., in Cooper V. T«1hir, 4 Dall. 19; WMt- IftC; Suta n. Oleuon, 12 FU. 190; Haw- 

du I. Hnnler'i Leawe, 1 Wlieat. 304. kins r. Gnrenior, 1 Ark. STO ; Weiling- 

* Swift V. T.Tton, 16 Pet. 18. haDien v. People, 44 Ulch. 266. 

' Per ilanhaU, Ch, J., ia WaTnuui v. 



by Google 



110 OONBTTTDTIOKAL UMtTATIOKS. [CH. T. 

all future cases falling under its provisioDB.' And in aootfaer 
case it is said : " The legtalatire power extends only to the 
making of laws, and in its exercise it is limited and restrained 
by the paramount authority of the federal and State constitutfons. 
It cannot directly reach the property or Tested rights of the 
citizen by providing for their forfeiture or transfer to another, 
without trial and judgment in the courts ; for to do so would be 
the exercise of a power which belongs to another branch of the 
government, and is forbidden to the legislative." ' " That ia not 
legislation which adjudicates in a particular case, prescribes the 
rule contrary to the general law, and orders it to be. enforced. 
Such power assimilates itself more closely to despotic rule than 
any other attribute of government." * 

On the other hand, to adjudicate upon, and protect, the rights 
and interests of individual citizens, and to tiiat end to construe 
and apply the laws, is the peculiar province of the judicial depart- 
ment.* " Ko particular definition of judicial power," says Wood- 
bttiy, J., *' is given in the constitution [of New Hampshire], and, 
considering the general nature of the instrument, none was to be 
expected. Critical statements of the meanings in which a^ im- 
portant words were employed would have swollen into volumes ; 
and when those words possessed a customary significadon, a defi- 
nition of them would have been useless. But ' powers 
[*92] judicial,' •'judiciary powers,' and 'judicatories' are all 
phrases used in the constitution ; and though not parti- 
cularly 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 judidal 
acts. Nor can they be both judicial and legislative ; because a 
marked difference exists between the employments of judicial and 
legislative tribunals. The former decide upon the legality of 

> Batei e. KimbiU, 3 Chip. 77. nilulmen of Clinton Co., 1 Ohio St. 77. 

* Newland v. Manh, IS III. 868. Se« liso King v. Dedbsm Bank, 16 Hua. 

> Errine'i Appeal, 16 Penn. St. 266, 447; Qordon v. InKraliam, 1 Gnnt'a 
S6S. 8«e aUo Gre«nougli v. Oreenough, 11 Caaei, 162 ; People e. Saperriaon of New 
Penn. St. 489 : Decbattellui n. Falrchild, York, ia 14. T. 124; Becbe ■>. State, S 
16 Penn. Sc 18; Trustees, Ac. o. Bailey, Ind. 601; Oreenough d. Greenoagti, 11 
lOFIa. 238. Penn. St 489; Tajlor b. Place, 4 R.L 

* Cincinnati, tc. Railroad Co. v. Com- 224. 



by Google 



CH. T.] POWERS EXBECI8ED BY LKGISLATIVE DEPAKTMENT. Ill 

cUims and conduct, and the latter make rales upon wbich, in con- 
nection -with tlie constitution, tlioae decisions should be founded. 
It is tlie province of judges to determine what is the law upon 
existing cases. In fine, the law is applied by the one, and made 
b; tke other. To do the first, therefore, — to compare the claims 
of parties with the law of the laod before established, — is in its 
nature a judicial act. But to do the last — to pass new rules for 
tlie 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 mle 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 regnlate public concerns, and to make laws for tlie benefit and 
welfare of the State. Nor 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 they forbear to interfere with past transactions and vested 
i^hts." • 

With these definitions and explanations, we shall now proceed 
to conuder some of the cases in which the courts have attempted 
to draw the line of distinction between the proper functions of the 
l^islative and judicial departments, in cases where it has been 
claimed that tlie legislature have exceeded their power by' invad- 
ing the domain of judicial authority. 



• Itedaratory StattOet. [• 93] 

Legislation is either introductory of new rules, or it is declar- 
atory of existing rules. " A dechiratory statute is one which 

1 I BI. CoDim. M. Tha dittinctionbe. wealth ti.Jonei, 10 Bnih.TZS; Bnrkett ■'. 

IwcenlegiilitiTe Bnd Judicial power Ilea McCurt;, 10 Bush, 758. 
betvecn a role and a lentence. 6hrad«r, * Merrill v. Slierburne. 1 N. H. 199, 203. 

Ex parte, 83 Cal. 270. Se« Shumway p. See Jonei e. Perrj, 10 Yerg. 69 ; Taylor 

Bmnelt, 39 Mich. 461; SuperTiion of b. Porler, 4 Hill, 140; Ogden b. Black- 

Btocllon, 114 Maaa. 247. The legtilatnre ledge, 2 Cranch. 272 ; Daih v. Van Eleek. 

oamiot empower olection board* to decide T Johns. 477 j Wllkinton d. Leland, 2 

whether one by dDellinK has forfeited hi* Pet 6ST; Leland v. Wilkinson, 10 Pet. 

right to vote or bold oOce. CMnmoD- 204; State v. Hopper, 71 Uo. 425. 



by Google 



112 COSSTITUTIONAL LMITATIOMB. [CH. V. 

is passed in order to put an end to a doubt as to what is the com- 
mon law, or the meaning of another statute, and which declares 
what it is and ever has been." ^ Such a statute, therefore, is Eilways 
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 iu those cases where doubts have already arisen, 
the statute, when passed, may be fouud to declare tbe law to be 
different from what it has already beeu adjudged to be by the 
courts. Thus Mr. Fox's Libel Act declared that, by the law of 
England, juries were judges of the law in prosecutions for libel ; it 
did not purport to introduce a new rule, but to declare a rule 
already and always in force. Yet previous to the passage of this 
act the courts had repeatedly held that the jury in these cases 
were only to pass upon the fact of publication and the troth of 
the innuendoes ; and whether the publication was libellous or not 
was a question of law which addressed itself exclusively to the 
court. It would appear, therefore, that the legislature declared 
the law to be what the courts had declared it was not So in tbe 
State of New York, after the courts had held that insurance com- 
panies were taxable to a certain extent under an existing statute, 
the legislature passed anotlier act, declaring that such companies 
were only taxable at a certain other rate ', and it was thereby 
declared that such was the intention and true construction of tlie 
original statute.^ In these cases it will be perceived that tbe courts, 
iu the due exercise of tlieir authority as interpreters of tbe laws, 
have declared what the rule established by the common law or by 
statute i», and that the legislature has then interposed, put its own 
construction upon the existing law, and in effect declared the 
judicial interpretation to be unfounded and unwarrantable. The 
courts in these cases have clearly kept within the proper limits of 
their jurisdiction, and if they have erred, the error has been one 
of judgment only, and has not extended to usurpation of power. 
Was the legislature also within the limits of its authority when it 

passed the declaratory statute? 
[*94] • The decision of this question must depend perhaps 

upon the purpose which was in the mind of the legisla- 
ture in passing the declaratory statute ; whether the design was 
to give to the rule now declared a retrospective operation, or, on 



by Google 



CH. T.J POWEBS EXERCISED BY LEGISLATIVE DEPARTMENT. 113 

the other hand, merely to OBtabliah a coustruction of the doubtful 
law for the determiDatioD of cases that may arise in the future. 
It is always competent to change an existing law by a declaratory 
statute ; and where the statute- is only to operate upoa future 
cases, it is no objeotioD to its validity that it assumes the law to 
have been in the past what it is now declared that it shall be io 
the future.^ But the legislative action cannot be made to retroact 
upon past COD trovers! es, and to reverse decisions which the courts, 
in the exercise of their undoubted authority, have made ; for this 
would not only be the exercise of judicial power, but it would be 
ite exercise in the most objectionable and oEfensive 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.* 

1 UnioD Iron Co. r. lieree, 4 Biu. B2T. thii caae waa held roiil to far m ill oper- 

■ Id tereral different ca>e« the coartt ation wai retroapectiTe, but valid a> to 

of PeniujWsnia had decided that a testa- fature caiea. And see Jamea ». Rowland, 

tor'i mark to liia name, at the font of a 42 Md. 462 ; Beiaer v. Tell AsKiciatioD, 

taatamentaT? paper, bat vithout proof 39 Penn, St, 137. The constitution of 

that the name wu written by hia eipreta Georgia entitled the head of a familj to 

direction, waa not the aignatnre required enter a homei lead, and the court! decided 

bj the ttatute, and Ihe legiilature, to uie that a lingle person, having no other* 

the language of Chief Jaatice Giban, dependent upon ^im, could not be re- 

"declared, in order to OTerrule it, that garded the head of a family, though 

•*ei7 lut will and teitament heTetofure keeping house with serTaoti. Attei- 

made, or hereafter to be made, except wards, the legislature paased an act, de- 

•och aa may have been full; a4)udicated ctaring that Hny single per»on living 

prior to tbe paasage of thii act, to which habitually as housekeeper to himself 

the tettator's name is labtcribed b; his should be regarded as the head of a 

directioD, or to which the testator has family. Held Toid as an exercite of 

made his nark or croas, shall be deemed judicial power. Calhoun t>. McLendon, 

a«d taken to be valid. How this man- 42 Ga. 406. The fact that the court* 

date to the courts to establish a partlcnlar had previously given a construction to 

iBterpretation of a particular statnla can the law may show more clearly a purpose 

be taken for anything else than an eier- in the legialature to exercise judicial 

dae of judicial power in settling a qnes- authority, bat it would not he essen- 

tiao of iDterpretation, I know not. Tlie tial to that end. As is well said in Haley 

jndiciaij had certainly recognized a leg- u. Philadelphia, 68 Fenn. St. 46, 47 : " It 

tslative interpretation of a statute before would be monstrous to maintain that 

it had itaelf acted, and cousequeatly be- where the words and intention of an act 

fore a purchaser could be misled by its were so plain that no court hnd ever been 

jadgment ; but he might have paid for a appealed to for the purpose of declaring 

title on the unmistakable meaning of their meaning, it was therefore !□ the 

plain wirds ; and for the legislature sub- power of the legislature, by a retrospeo- 

wqnently to distort or pervert it, and to tive law, to put a construction upon them 

•DACt that white meant black, or that contrary to the obvious letter and apirit. 

blad meant white, wonld in tbe same de- Reiser d, William Tell Fund Assoclatinn, 

gree be an exercise of artntrary and uncon- 39 Penn. St, 137, is an authority in point 

•titotional power," Orecnongh b. Oreen- against such a doctrine. An expository 

OBsfa,!! Penn, 81.489,494. Tbe act in act of assembly la destitute of retroactive 



by Google 



114 COHSTITDTIONAL UMrTATlOMI. [CH. T. 

As the legislature cannot set apide the construction of the law 
already applied by the courts to actual cases, neither can it compel 
the courts for the future to adopt a particular construction of a law 
which the legislature permits to remain in force. " To declare 
wliat the law is, or ha» been, is a judicial power ; to declare what 
the law tkall be, is legislative. One of the fundamental principles 
of all our governmento is, that the legislative power 
[" 95] ■ shall be separate from the judicial." * If the legislature 
would prescribe a different rule for the future from that 
which the courts enforce, it must be done by statute, and cannot he 
done by a mandate to the courts, which leaves the law unchanged, 
but seeks to compel the courts to construe and apply it, not ac- 
cording to the judicial, hut according to the legislative judgment.* 
But in any case the substance of the legislative action should 
be regarded rather than the form ; and if it appears to be the in- 
tention to establish by declaratory statute a rule of conduct for 
the future, the courts should accept and act upon it, without too 
nicely inquinng whether the mode by which the new rule is estab- 
lished is or is not the best, most decorous, and suitable that could 
have been adopted. 

If the legislature cannot thus indirectly control the action of the 
courts, by requiring of them a construction of the law according 
to its own views, it is very plain it cannot do so directly, by set- 
force. becsQH It t* an set of judicial directing the lery aod collection of a, tax 
power, and ii in contravention of the which ha* already been deulared illegal 
ninth lection of tlie ninth article of Iha hy the judiciary, is void, ai an attempted 
conBticution, which declare* that no man reTenal of Jadicial action. Mayor, Ac. r. 
can be deprived of hi» property nnlen* Horn, 'J& Md. IM ; Bntler r. Superriion 
'by tlie judgment of hii peen or the law of Saginaw, 26 Mich. 22. See Fontem. 
of the tand.' " See 8 Am. Rep. 155, 156. Fonter, 129 Maai. 669. Thit doctrine. 
And on the fbrce and eSevI of declaratory however, would not prevent the correo- 
law« in general, eee Salleri v. Tobiai, 8 tion of mere erron in taxation by legiila- 
Paige, 338i Postmaaler-Oeneral d. Early, tion of a retnxpective character. Sea 
12 Wheat. ISA; Union Iron Co. f. Pierce, potf, p.*S71. 

4 BIh. S27 ; Planters' Bank e. Black, 19 ' Ooventor v. Porter, S Hnmph. 106 ; 
Miu. 43 i Oough e. PraU, Hd. 626. People *. 8nper*i*or«, Ac., 16 N. T. 434 ; 

1 Daihv.VanKleek,TJohni. 477,498, Reieer p. Tell Auociation, 89 Penn. St. 
per Thomptm, J.; Ogden v. Blnckledge, 187; O'Conner r. Warner, 4 W. &8.22S; 
2 Cranch, 272; Lambertmn d. Hnpan. S Lainbertson d. Hogan, 2 Penn. Sc 22. 
Pcnn. St. 22; Setbert v. Linton, 6 W. Ta. An act directing that a certain depoaition 
67; Arnold v. Selley, 6 W. Va- 446; which had previously been taken ihoald 
McDaniel v. Correll, 10 HI. 226. The be read in evidence on the trial of a cer- 
legislatnre cantMl dictat« what ingtruc- tain canae, notwithstanding inforraalitlea, 
tioni shall be given by the court to a li void. Dupy v. Wickwire, 1 I>. Chip, 
jury, except hy general law. State o- 2S7i a. o. 6 Am. Dec. 729. 
Hopper, 71 Ho. 425. A legislative act 



by Google 



CH. v.] POWERS EXEBCI8ED BY LBGiaUATITl! DEPARTMEKT. 115 

ting aside their judgments, compelling them to grant new trials,^ 
ordering the dischatge of offenders,^ or directing what particu- 
lar steps shall he taken in the progress of a judicial in- 
qaiiy.' *And as a court most act aa an oi^nized body [*96] 

< Lawt* V. Webb, 8 He. 336 ; Dnriiam thkt there htw been • Tlolatlon by th« 

K [«irUton. 4 He. 140 ; AtkinMn v. Duo- compan; of Mtne of Its proTUioDB," csn 

kp,60He. Ill ; BkImd. Eimbill, 2 Chip, there be arepeal before a Judidd inquiry 

77 ; Suuiiford e. Barry, 1 A<k. 314 ; Mer- into the TJolation. Flint, ic. Plank Road 

riU a Slwrbaine, 1 N. H. 199 ; Opinion of Co. n. Woodholl, 26 Midi. 99. A le^ila- 

Judges In Matter of Dorr, 8 R. L 299; tire act cannot turn diTorcet nin* into 

Taylor <r. Place, 4 R. L 32f ; De Chaatel- abeolute divorces, of ita own fi>Tce. Sptr- 

lai c. Fairehild, IG Penn. St. IB \ Toting hawk t>. Sparhawk, 118 MaH. 315. But 

V. State Bank, 4 lad. 301 ; Beebe v. State, to take away hy itatute a itfttatory right 

Bind. 601 ; Lanier r.Gallatai, 13 La. Ann. of appeal ii not an exerclie of judicial 

175; Uayor, 4c. v. Horn, 26 Md, 194; authority. Ex parte HcCardle, 7 Wall. 

Weaver v. Lap^y, 4S Ala. 224 ; San- 600. And it ha* been held that a (tatnt* 

der« r. Cabaniw, 43 Ala. ITS; Moier n. allowing an appeal in a particular case - 

White, 39 Hich.69; Sydnor f. Palmer, wai xalid. Proat v. Berry, 2 Gill, 147; 

S9 Wia. 406; Peopte o. Fiiibie, 2S Cal. Sute v. Northern Central R. B. Co., 18 

186; LawMKi v. Jeffries, 47 Mill. 686 ; Md. 198. A retroactive itatute, ^ring 

s. c. 12 Am. Rep. 342 ; RatcliSe d. Ander- tlie right of appeal in CMei in which it 

MO, 81 Oratt 106 ; i. c 31 Am. Rep. 71S, had previotuly been loet by lapM of time. 

And Me paK, P(i.*391-*3»S and note*, wai instained in Page a. Matbewa's 

Jt i« not competent by legiilation to au- Adm'r, 40 Ala. 647. Bat En Carleton v. 

thoriie the court of final resort to reopen Goodwin's Ex'r, 41 Ala. 16S, an act the 

and rehear caaespreTionily decided. Dor- effect of which wonld have been to revive 

aey ■. Doraey, 37 Hd. 64 ; a. c. 11 Am. discontinDed appeals, wa« held void as an 

Rep. 628. The legislature may control exercise ol Judicial authority. Seecaees 

rasnediee, 4c., bat, when the matter ha* cited in next note, 

ptoeeaded to judgment, it has passed be. ■ Opinionaof Judge* on the Doit Caae, 
yoad legislative control. Oliver n. Ho- 8 R. I. 299 ; Bute v. Hopper, 71 Mo. 436. 
CInre, 28 Ark. 666 ; Oriffln's Execntor r. In the ca«e of Picqoet, Appellant, 6 Pick. 
Ctmningham, 20 Gratt. 31 ; Teel ir. Tan- 04, the judge of probate had ordered let- 
cay, 23 Gratt. 690 ; Hooker d. Hooker, 18 ten of administration t« issue to an ippll- 
Ui>*. 609. cant therefor, on his giving bond ta the 

■ In State «- Flemfaig, 7 Humph. 162, penal sum of 960,000, with sureties with- 
a I^islative resolve that " no fine, for. in the Commonwealth, for the faithful 
feitnre, or imprisonment should be Im- perfbrmance of his duties. He wai nn- 
poaed or recovered under the act of 1837 able to give the bond, and applied to the 
(then in force], and that all cauws pend- legislature for reUef . Therenpon a re- 
ii^ in any of the couru tbr sach offence solve was passed "empowering" tha 
(koald be dismissed," was bddvoidaaan judge of probate to grant the letters of 
iavaaioa of jndidia anthority. The leg- admioiatratloa, provided the petitioner 
idatnre cannot deehire a forfeiture of a should give bond with hit brother, a real- 
tight to act as curators of a college. State dent of Paris, France, aa surety, and 
V. Adama, 44 Ha 670. Korean It author- " that such bond should be in lien of any 
iae the governor or any other State officer ud all bond or bonds by any Uw or staC- 
to paas npon the validity of Stale grants nte Id this Commonwealth now in foixn 
and correct errors therein ; this being required," 4c. The judge of probate re- 
]a^daL HilUard v. ConDelly, 7 Oa. 172. fused to grant the letters on the terms 
Nor, wbena a corporate charter provldea ipedSed in this resolve, and the Supreme 
IlMt it abaU not be repealed " unless it Court, while holding that it was not com- 
skidlbenMideloappeartolbelegislatnra pnlsory upon him, abo declared their 



by Google 



116 CONSTITOTIOITAL LIM1TATI0N8. [OH. T. 

of judges, and, where differences of opinion arise, they can 
only decide hy majorities, it has been held that it would not be in 
the pOwer of the legislature to provide that, in certain contin- 
gencies, 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.' 

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

opinion that, if it «ere lo, it would be Appeal*, imleM a m^ontr ot tlbote mem- 
inoperative and void. In Bradford v. ben of the court who were competent lo 
Brooki, 2 Aik. 284, it wa* decided that ait on tbe hearing and decision ihonld 
the legislature had no power lo revlre a cuncnr in the reversal, waa oncoOBtitn- 
ctHnmiuion for proving claimi against an tional. Its effect would be, if tbe conrt 
eatate after it bad once expired. See also were not full, to make the opinion of the 
Bagg's Appeal, 43 Penn. SL 612 ; Trus- minoritj In favor of afflnnance control 
tees D. Bailej, 10 Fla. 238. In Hill v. that of the majorily in favor of reversal, 
Sunderland, 8 YL GOT, and Burch b. New- unless the latter were a majority of the 
berrj, 10 N. T. 874, it was held that the whole court. Such a provision in the 
legislature had no power to grant to par- constitution. might be proper and noei- 
ties a right to appeal after it was gone ceptionablei but it the constitution baa 
under the general law. In Burt v. Wil- created a court of appeala, without anj 
liams, 24 Ark. 91. it was held that tlie restriction of tliii character, the ruling of 
granting of contiauances of pending cases this cue is that tlie legislature cannot im- 
waBtheejert:i»e«jf judicial authority, and pose it. The court was nearly eqnaUj 
a legislative act assuming to do this was divided, standing (even to six. A statota 
void. And where, by the general law, the authorizing an nnofflcial person to ait in 
conrts have no authority to grant a di- the place of a judge who is disqtialiSed 
Torce for a given cause, the legislature was held void in Tan Slyke t^. Insurance 
c^annot confer the authorily in a partica- Co. 89 Wis. 890 ; s. c. 20 Am. Rep. 60. 
lar case. Bimmonds o. Simmonds, 108 That judicial power cannot be driegated, 
Mass. 572; s. □. 4 Am. Rep. 576. And see Cohen v. Hoff, S Brev. GOO. 
see;»«t, pp •110, note, •392 and note. * Rex d, Satton, 4 M. ftS. 632. 

1 In Ciapp V. Ely, 27 N. J. 622, it waa * Elmendorf n. Carmicbae!,3 I.itt47$; 
held that a sUtate which provided that a. o. 14 Am. Dec. 86 ; Parmelee r. Thomp- 
no Judgment of the Supreme Court should son, 7 HIU, 77 ; Lothrop v. Bteadman, 42 
l>e reversed by the Court of Errora and Conu. 6S3, 692. 



by Google 



CE. v.] POWERS EXEBCISBD BT LBOISLATIVB DEPABTHBHT. 117 

* We come now to a class of oases in regard to which [• 97] 
there has been serious contrariety of opinion ; springing 
from the fact, perhaps, that the purpose sought to be accomphahed 
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 which the courts usually occupy under 
general laws conferring the jurisdictiou upon them. We refer to 

Slatutet empowerir^ Guardians artd other Trutteea to seU Land*. 

Whenever it becomes necessary or proper to sell the estate of 
a decedent for the payment of debts, or of a lunatic or other 
iQcompet«nt person for the same purpose, or for future support, 
or of a minor to proTide the means for his education and nurture, 
or for the most profitable investment of the proceeds, or of ten- 
ants in common to effectuate a partition between them, it will 
prol>ably be found in every State that some court is vested with 
jurisdiction to make the necessary order, if the &ctB after a 
hearing of the parties in interest seem to render it important. 
The case is eminently one for judicial investigation. There are 
&ct8 to he inquired into, in regard to which it is always possible 
that disputes may arise ; the party in interest is often incompetent 
to act on his own behalf, and his interest is carefully to be in- 
quired into and guarded ; and as the proceeding will usually be 
exparte, 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 such laws should require notice to all 
proper parties, and afibrd an opportunity for the presentation of 
any &cts which might bear upon the propriety of granting the 
applications. 

But it will sometimes be found that the general laws provided 
for these cases are not applicable to some which arise; or, if 
applicable, that they do not accomplish fully all that in some 
cases seems desirable ; and in these cases, and perhaps also in 
some others without similar excuse, it has not been unusual for 
legislative authority to intervene, and by special statute to grant 
the permission which, under the general law, would be 
granted by the oourta. The * power to pass such statutes [* 98] 



by Google 



118 COKSTETDTIOSAIi LtBHTATIONa. [CH. T, 

has often been disputed, and it may be well to Bee upon what 
basia of authority, as well as of reason, it resta. 

If in fact the inquiry which precedes the grant of authority is 
in its nature judicial, it would &eeni clear that such statutes must 
be ineffectual and void. But if judicial inquiry is not essential, 
and the legislature may confer the power of sale in such a case 
upon an ex parte presentation of evidence, or upon the represen- 
tationa of the parties without any proof whatever, then we must 
consider the general laws to be passed, not because the cases fall 
necessarily within the province of judicial action, but because 
the courts can more conveniently consider, and more properly, 
safely, and inexpensively pass upon such cases, than the legisla- 
tive body to which the power primarily belongs.' 

The rule upon this subject, which appears to be deducible from 
the authorities, is this : If the party standing in position of trustee 
applies for permission to convert by a sale the real property into 
personal, io oi-der to effectuate the purposes of the trust, and to 
accomplish objects in the interest of the cestui que tnut not other- 
wise attainable, there is nothing in the granting of permiasioa 
which is in it« nature judicial. To grant permission is merely to 
enlarge the sphere of the fiduciary authority, the better to ac- 
complish the purpose for which the trusteeship exists ; and 
while it would be entirely proper to make the questions which 
might arise assume a judicial form, by referring them to some 
proper court for consideration and decision, there is no usurpa- 
tion of power if the legislature shall, by direct action, grant the 
permission. 

In the case of Rice v. Parkman,* certain minors having become 
entitled to real estate by descent from their mother, the legisla- 
ture passed a special statute empowering their &ther as guardian 
for them, and, after giving bond to the judge of probate, to sell 

> There are conslitulJonal proTisioiu plicable, might liaa be lield to exclude 

in Kentucky, Virginik, Miuouii, Oregon, luch ipecUl antliorii«tion. 

Nevida, Indiana, Maryland, New Jeraey, * 16 Ma^i. 82S, See the crilJdam of 

ArkanaoB, Florida, lilinoit, Wiaconain, Ihli cnie in Jones v. Perry, 10 Terg. 66; 

TexM, West Virginia, Michigan, and Col- 8. c. 80 Am. Dec 48a That can ii out 

orado, forbidding special law« liceniing of liarmonj with the current of authority 

the tale of the land* of minors aod other on the subject here conaidered. In Cali- 

penona under legal disabilitj. Perhapa fbniia It has been held that where a minor 

the general provision io some other con- has a guardian, it is not competent for the 

ititutiona. forbidding special laws in cases legislature to empower anotlieT to sell his 

where a general law could be made ap- lands. Lincoln ». Alexuider, ^ Cal. 4^ ; 
B. c. S8 Am. Bep. 6S9. 



by Google 



CH. v.] POWERS BXBKCIS&D BY LBGI8LATIVB DEPABTMENT. 119 

and cODvey the lands, and put the proceeds at interest on good 
security for the benefit of the minor owners. A sale was made 
kccordingly ; but the children, after coming of age, brought suit 
against the party claiming under the sale, insisting that the 
special statute wtut void. Tliere 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 
tall * and complete control over such cases which it would [* 99] 
htfve possessed had do such statute existed. "If," say 
the court, " the power by which the resolve authorizing the sale 
in this case was passed were of a judicial nature, it would be very 
clear that it could not have been exercised by the legislature 
without violating an express provision of the constitution. But 
it does not seem to us to be of this descriptjon of power ; for it 
was not a case of contioverey between party and party, nor is 
there any decree or judgment affecting the title to property. The 
only object of the authority granted by the iegi^ture was to 
transmute real into personal estate, for purposes beneficial to all 
who were interested therein. This is a power frequently exercised 
by the legislature of this State, since the adoption oC the consti- 
tution, and by the legislatures of the province and of the colony, 
while under the sovereignty of Great Britain, analogous to the 
power exercised by the British Parliament on amilar subjects 
time out of mind. Indeed it seems absolutely necessary for the 
interest of thoee who, by the general rules of law, are incapaci- 
tated from disposing of their property, that a power should exist 
somewhere of converting lands into money. For otherwise many 
minors might suffer, although having property ; it not being in a 
conditioo to yield an income. This power must rest in the legis- 
lature, in this C(«nmonwealth ; that body being alone competent 
to act as the general guardian and protector of those who are 
disabled to act for themselves. 

** It was undoubtedly wise to delegate this authority to other 
bodies, whose sessions are regular and constant, and whose struc- 
ture may enable Utem more easily to understand the merits of the 
particular application brought before them. But it does not fol- 
low that, because the power has been delegated by the legislature 
to courts of law, it is judicial in its character. For aught we see, 
the same authority might have been given to the selectmen of 



by Google 



120 OOKSTITUIIONAL LUHTATIOBS. [OH. V. 

each town, or to the clerks or registers of the counties, it being a 
mere ministerial act, certainly requiring discretion, and sometimes 
knowledge of law, for its due exercise, but still partaking in 
no degree of the characteristicsof judicial power. It is doubtless 
included in the general authority granted by the people to the legi»- 
lature by the constitution. For full power and autliority is given 

from time to time to make, ordain, and establish all majiaer 
[* 100] of wholesome and reasonable orders, laws, statutes, * and 

ordinances, directions, and instructions (so as the same 
be not repugnant or contrary to the constitution), as they shall 
judge to be for the good and welfare of the 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 raluable contract in which he might be 
interested. But there seems to be no reason to doubt that, upon 
his application, or the application of those who pioperly represent 
him, if disabled from acting himself, a bene^cial 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 &ct, protecting him in his property, 
which the legislature is bound to do, and enabling him to derive 
subsistence, comfort, and education from property which might 
otherwise be wholly useless duriug that period of life when it 
might be most beneficially employed. 

" If this be not true, then the general laws, under which so 
many estates of minors, persons non compot mentiB, and others, 
have been sold and converted into money, are nnauthorized by 
the constitution, and void. For the courts derive their authority 
from the legislature, and, it not being of a judicial nature, if the 
legislature had it not, they could not communicate it to any 
other body. Thus, if there were no power to relieve those from 
actual distress who bad unproductive property, and were disabled 
from conveying it themselves, it would seem that one of the 
most essential objects of government — that of providing for the 
welfare of the citizens — would be lost. But the argument which 
has most weight on the part of the defendants is, that the legisla- 
ture has exercised its power over this subject in the only consti- 
tutional way, by establishing a genei'al provision ; and that, having 
done this, their authority has ceased, they having no right to 
interfere in particular cases. And if the question were one of 



by Google 



CH. v.] POWEES EIEECISED BY LEQISLATIVB DEPARTMENT. 121 

expedieucy only, we should perbaps be convinced by the argu- 
ment, that it would be better for all such applications to be made 
to the courts empowered to sustain them. But as a question 
of right, we tbiuk the ai^ument fails. The constituent, when he 
has delegated an authority without an interest, may do the act 
himself which be has authorized another to do; and especially 
when that constituent is the legislature, and is not pi-ohibited by 
the comtitutiou from exercising the authority. Indeed, 
the * whole authority might be revoked, and the legisla- [* 101] 
ture resume the burden of the business to itself, if in its 
wisdom it should determine that the common welfare requured 
it. It is not legislation which must be by general acta and rules, 
but the use of a parental or tutorial power, for purposes of kind- 
ness, without interfering with or prejudice to the rights of any but 
those who appl}' for specific relief. The title of strangers is not 
iu any degree affected by such an interposition." ' 

A similar statute was sustained by the Court for the Correction 
of Errors in New York. " It is clearly," says the Chanoellor, 
" within the powers of the legislature, as parens patricB, to pi-escribe 
such rales and regulations as it may deem proper for the superin- 
tendence, disposition, and management of the property and effects 
of infants, lunatics, and other persons who are incapable of manag- 
ing their own affairs. But even that power cannot constitutionally 
he BO far extended as to transfer the beneficial use of the property 
to another person, except in those cases where it can legally be 
(ffesuoied the owner of the property would himself have given the 
use of his property to the other, if he had been in a situation to 

* In ShumwBj e. Bennett, 29 Mlcb. Am. & Eng. R. R. Cm. 848. In Snper- 

461, tfae dUtiDCtioD between Judicial uid viion of Election, 114 Uui. 247, a. o. 

■dminlatratiTe power is pointed out, and 19 Am. Rep. 341, it is decided tliat the 

it it held lliat tlie quettion of incorporal- courti cannot be TMted with aathotit; to 

iog tenitorj m ■ Tillage cannot be made appoint inipecton of election. For the 

a Jodtcial qoeition. A like dediion U ditiinction between political aad judicial 

made hj Chancellor Cooper, in Ex part» power, kc further, Dickey r. Reed, 78 Bl. 

Bonit, 1 Tenn. Ch. R. 63, though it la 261 ; Commonwealth v. Jone«, 10 Buih, 

Mid in that caae that tbe organization of 726. And aee fiml, p. * 106 and notes. In 

oorporatioDB which are created by legiila- Regarty'i Appeal, 75 Penn. St. SOS, the 

tiire anthoritf maj be referred to the power of a legialatnre to authorize a tnia- 

conrti. See, on the same subject, State tee to sell the landi of parties who were 

f. Annalrong, 3 Sneed, 634 i Galeiburg t>. (ui jurii, and might act on their own be- 

BawUnaon, 76 III. 162. Compare Bur- half, waa denied, and the case was dislin- 

liBgton B. Leebrick, 4J{ Iowa, 262. That guished from Norris r. Clymer, 2 Peno. 

Ite coarts cannot b« clothed with legisla- St. 277, and others nhich had followed 

Inc anthoritj, see Hinnesot* v. TouDg, 2 it 



by Google 



122 C0N8UTDTI0NAI. LIMITATIONS. [CH. T. 

act for himself, as in the case of a provision out of the estate of an 
infant or lunatic for the support of an indigent parent or other 
near relative." ^ 

1 Cochran b. Van Snrla^, SO Wend. 306, extenaiTe jariadiclion to [icenie tlie nle of 
373. See tlie isnie case in the Supreme theresleatateof mlnorBbjlheirguftrdiaiiB. 
Court, lai nom, Clarke v. Van Surlaj, 16 If tlie jnrltdictian of the judgei of probate 
Wend. 436. See also Suydam p. William- be not sufflcieutiy extensire to reach «U 
son, 24 How. 427 ; Williamson v. Suy dam, proper caies. it ma; be a good reaion irhy 
S WaU. 723; Heinof Holnian u. Back of that jaritdicllon ehouid be extended, bnt 
Norfolk, 12 Ala. 3S9 ; Florentine v. Bar- can hardly be deemed a suBicient rea«0D - 
ton, 2 WaU. 210. In Uojt d. Spragiie,10S for the particular interposition of the 
U. 8. 013, it iraa held competent, b; iegielature inan mdividual case. If there 
■pecial statute, to proTlde for the itt*et(- be a defect in the lavs, they should be 
ment of the estate of minors In a manu- amended. Under our instituUoos all men 
flacturitig corporation, and that, after the are viewed aa equal, entitled to enjoj 
iDvestment was accordingly made, no ao- equal priTileges, and to be governed by 
count could be demanded on their behalf, equal laws. If it be flt and pt«per that 
except of the stock and ita dividend*. But Ucense should bet^ven to one guardian, 
the legislature cannot empoirer the guar- under particular circumstances, to sell the 
dian of infants to mortgage their lands to estate of hit wanl, it is fit and proper that 
pay demands which are not obligations all other guardians should, under similar 
against them or their estate. Burke v. circumstances, have the same license- 
Mechanics' Saving* Bank, 12 H. I. 613. This is the very genius and spirit of our 
Id Brevoort r. Qraoe, IS N. Y, 246, the institutions. And we are of opinion that 
power of the legislature to authorize the an act of the legislature to auihoiiie the 
sale of lands of tofants by special statute sale of the land of a particular minor by 
was held to extend to the future contin- his guardian cannot be easily reconciled 
gent interests of those not in being, but with the spirit of the article in the Bill of 
not to the interests of noti-consenting Bights which we have just died. It la 
adults, competent to act on their own be- true that the grant of such a license by 
half. In Opinions ofthe Judges, 4 K.H-5ttG, the legislature to the guardian is intended 
572, the validity of such a special statute, as a privilege and a benefit to the ward. 
under tlie constitution ot New Hatnpiliire, But by the law of the land no minor is 
was denied. The judges say : " The ob- capable of assenting to a sale of his real 
jection to the exercise of such a power estate in such a manner as to bind him- 
by the legislature is, tlial it Is in its na- self. And no guardian is permitted by 
ture both legislative and judicial. It is the same law to determine when the ea- 
the province of the legislature to pre- tate of his ward ought and when it onght 
scribe the rule of law, but to apply it to not to be sold. In the contemplation of 
particular cases is the business of the the law, the one has not sufBcient discre- 
courts of law. And the thirty-eighth ar- tion to jndge of the propriety and expe- 
ticle in the Bill of Rights declares that diency of a sale of his estate, and the 
'in the government of this State the Ibree otheris not to be intrusted with the power 
essential powers thereof, to wit, the legis- of judging. Such being the general law 
lalive, executive, and judicial, ought to of the land, it is presumed that the leg- 
be kept as separate from, and independ- Islature would be unwilling to rest the 
ent of, each other as the nature of a free jostiflcation of an act authorizing the sale 
government will admit, or as is consistent of a minor's estate npon any assent which 
with that chain of connection that binds the guardian or the minor could give in 
the whole fabric of the constitution in one the proceeding. Tlie qnestion then b, a* 
indissoluble bond of union and amity.' it seems to ns. Can a ward be deprived of 
The eiercise of such a power by the legis- his inheritance without his consent by an 
Uture can never be necessary. By the act of the legislature which is itileniled to 
exlstinglaws,judgesof probateliavevery api^y to no other individual? The flf- 



by Google 



CH. v.] POWEB8 BXEBCI8BD BY l^BQlSLATIVm DBPABTMENT. 128 

* The same ruling has often been made in analogous [* 102] 
cases. Id Ohio, a special act of the legislature author- 
izing commissioDers to make sale of lands held in fee tail, by 
devisees under a will, in order to cut off the entailment and 
effect a partition between them, — the statute being applied for 
by the mother of the devisees and the executor of the will, and 
on behalf of the devisees, — was held not obnoxious to consti- 
tutional objection, and to be sustainable on immemorial legislative 
usage, and on the same ground which would support general laws 
for the same purpose.^ In a case in the Supreme Court of the 
United States, where an executrix who bad proved a will in New 
Hampshire made sale of lands without authority in Rhode Island, 
for the purpose of satisfying debts against the estate, a 
subsequent act of the Rhode Island legislature, * con- [* 108] 
finning the sale, was held not an encroachment upon 
the judicial power. The land, it was said, descended to the heirs 
subject to a lieu for the payment of debts, and there is nothing 
in the nature of the act of authorizing a sale to satisfy the lien, 
which requires that it should be performed by a judicial tribunal, 
or that it should be performed by a delegate rather than by the 
legislature itself. It is remedial in its nature, to give effect to 
existing rights.^ The case showed the actual existence of debts, 
and indeed a judicial license for the sale of lands to satisfy them 
had been granted in New Hampshire before tlie sale was made. 
The decision was afterwards followed in a carefully considered 
ease in the same court.^ In each of these cases it is assumed that 
the legislature does not by the special statute determine the 
existeDce or amount of the debts, and disputes concerning them 

Uenth BTtide in the Bill of Bighti de- preHon theqoestion lubmitled tom, that 

cUn* that DO inbject (hall be deprived of the legialature cannot ■utlioriieagiurdian 

kU property but by the jodgment of hii of minor*, hy a ipecial act or resoNe, to 

pern or the law of the land. Can an act make a ralid conveyance of the real es- 

of the legialanire, intended to authorize tate of hia wardi. " See alio Jones v. 

«ae man toaell the land of another with- Perry, 10 Terg. 5G; a. c. SO Am, Dec.4S0; 

oat hia conient be ' the law of the land' Lincoln B.Alexander, 52 CaL 482; a.c.SB 

•ithin the meaning of the conatitution ! Am. Bep. 689. 

can It be the law of the land in a fl-ee > CarroU d. Leasee of Olmited, 16 

ootuitry I If the queatian proposed to ui Ohio, 2E1. 

can be reaoUed into these quMlione, ai it » Wilkinaon v. Leland, 2 Pet. 627, 600. 

appears lo ns it may, we feel etitirely Compare Brevoort b. Grace, 53 H. T. MB. 

oonfldeDt that the repreaentaiives of the • Walkini v. Bolmaa'a Lessee, 16 Pel. 

pwple of thU State will agree with us in 35. 6a See also Florentine v. Barton, 2 

tbe opinion we feel ouraelTes bound to ex. Wall. 310 ; Doe a. Dougbua, 8 Blockf. 10. 



by Google 



134 COWSTITDTIOKAL LIMITATIONS. [CH. Y. 

would be determinable in the usual modes. Many other decisions 
have been made to the same effect.' 

This species of legislation may perhaps be properly called pie- 
relative remedial legislation. It hears and determines no rights; 
it deprives no one of his property. It simply authorizes one's 
real estate to be turned into personal, on the application of the 
person representing his interest, and under sach circumstances 
tliat the consent of the owner, if capable of giving it, would be 
presumed. It is in the nature of the grant of a pnyilege to one 
person, which at the same time afEects 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 
[* 104] relation to * the owner, to make sale of real estate, to 
satisfy demands which he asserts, but which are not 
judicially determined, or for any other purpose not connected 
with the convenience or necessity of the owner himself. An act 
of the legislature of Illinois undertook to empower a party who 
had applied for it to make sale of the lands pertaining to the 
estate of a deceased person, in order to raise a certain specified 
sum of money which the legislature assumed to be due to him 
and another person, for moneys by them advanced and liabilities 

1 Thonton b. Thunton, S R. I 206, 46g, « ipedal ttatute ftDthoriting the ad- 

802; WilliamBOD d. Williamaon, 11 Miu. miDlstrator □[ one who held tlie mere 

715; HcComb v. Gilkej, 29 Miu. 146; naked legal title to eoatej to the owner 

Boon D. Boweri, 80 Miu. 248; Stevart of the equiuhle title wu held rslid. To 

v. Griffith, 38 Mo. 13 ; Eitep n. Hutchman, the same e%ct U lieformed P. D. Church 

14 S. & H. 435 ; Snowhill v. Snooliill, IT e. Mott, 7 Paige, 77 ; a. o. 32 Am. Dec 

N.J. Eq. 80; Done? a, Gilbert, 11 G. & J. 618. In Stanley n. Colt, 6 Wall. IIS, aa 

87; Norri» e. Clfmer, 2 Penn. Sl 277; act permitting the rale of real ettate 

Sergennt It. Kulin,2 Penn. St. 893; Ken- o. wbich had beendeTiaed to charitable am 

Kitchen, 17 Penn. St, 433; Coleman n. waa BDilained, — no diveraion of the gift 

Carr. 1 Mii>. 25S ; Davison v. Jnhonnot, 7 being made. A more doubtful cue it 

Uet38e;TowIe u. Fame}', 14 N. Y. 423; that of Unsle^ f. Hubbard, 44 Conn. 109; 

Leggett s. Hunter, IS N, Y. 44fi; Bre- a. o. 26 Am. Rep. 431, in which it waa 

Toort D. Grace, 63 N. Y. 245; Gftnnett u. lield competent, on petition of tenant 

Leonard, 47 Mo. SOS; Kibbj- v, diet- for life, to order a sale of landi for 

wood'i Adm'n. 4 T. B. Monr. 91 ; She- the heneflt of all concerned, thongh 

han't Heirt v. Bamett'i Heira, T. B. agRioaC remonatrance of ownera of t)ie 

Monr. eiH; Daria i.-. State Bank, 7 Ind. rerereion. 

81Q ; Richardson v, Monson, 23 Conn. 04 ; * It would be equally competent for 

Ward r. New England, Ac. Co., 1 Cliff, the legialatnretoauthoriieapeiiou under 

665; Sohier V. Masaacliutetts. &c. Hoapi- legal di a ability — «.;. an infant — to cod- 

tal. 8 Cush. 433; Ijobrano n. Nelligan, S rey hit estate, at to suthoriEe It to be 

Wall. 296. CotOi-a, Brenhsm r. Slnry, 30 convejed hy guardian. McComb d. Oil- 

CaL 170. Id Moore o, MaxweU, IB Ark. key, 29 Miu. 140. 



by Google 



CH. v.] POWERS EXEECIBED BY LBGI8LATIVE DEPAETMEST. 125 

incarred on behalf of the estate, and to apply the same to the- 
extinguishment of their claims. Now it is evident that this act 
was in the nature of a judicial decree, passed on the application 
nf parties adverse in interest to the estate, and in effect adjudg- 
ing a certain amount to be due them, and ordering lands to be 
sold for its satisfaction. As was well said by the Supreme Court 
of Illinois, in adjudging the act void : " If this is not the exercise 
of a power of inquiry into, and a determination of, facts between 
debtor and creditor, and that, too, ex parU and summary in its 
character, we are at a loss to understand the meaning of terms; 
nay, that it is adjudging and directing the application of one per- 
son's property to another, on a claim of indebtedness, without 
notice to, or hearing of, the parties whose estate is divested by 
the act. That the exercise of such power is in its nature clearly 
judicial, we think too apparent to need argument to illustrate its 
truth. It is so self-evident from the &cts disclosed that it proves 
itself." 1 

*A case in harmony with the one last referred to [* 105] 

' Lane V. Dorman, 4 HI. 2SB, 242 ; b. a deemed a judicial inqniry. It neither ei- 

3B Am. Dec. 64S. Id Dubois v. Mc- amined proof, nor determined tlie nature 

Lmd, 4 UcLean, 486, Judge Pope aa- orextent of ctaimt ; it merely aulhorlied 

niinea that the can of LAae v. Dorman the application of the real eitale to the 

decide* tiiat a ipecial^act, authorizing an payment of debts generally, diicrimiuat- 

txecntor to leU landa of the teitator ing in fa'or of no one creditor, and giring 

to pay debts agalrut hit estate, would no one a preference over another. Not 

be oDconititntional. We do not ao vd- bo in the caw before ni ; the amount ia 

dantand that decision. On the con- iuTesliBBted and ascertained, and the sale 

trary, another due in the tame Tolame, is directed for the benefit of two persons 

Rdwardi t. Pope, p. 46E^ folly laitains exclnilTely. The proceeds are to be ap- 

lb> caaea before decided, diitingnishing plied to the pajment of such claims and 

Ihem from Lane v. Dorman. But that none other, for liabilities said to be in- 

indeed ia also done In the principal case, cnrred, bnt not liquidated or satisfied; 

whare the court, after referring to timilar and those, too, created after the death of 

caws in Kentucky, say: "These cases the inleatate." See also Mason v. Wail, G 

are clearly diatingnished from the case 01. I2T. 134 ; Darenport v. Tounf;, 16 111. 

at bar. The acts were for the benefit of 648 ; Roiier v. Fagan, 40 HI. 404. The 

•U the ereditora of the estates, without case of Batep k. Hutchmnn, 14 S. &. R. 

distlDCtion ; and in one case, in addition. 4S6, would seem to be more open to 

fcr the porpoM of perfecting titles con- question on this point than any of the 

Iracted to be made by the intestate. The others before cited. It was the case of a 

daims of the creditors of the intestate ipecial statute, authorizing the guardian 

were tobecatabljshedfay judidsl orother of infant hein to conrey their landa in 

Mtisfaetory legal pmceedings, and, in aatiafactlon of a contract made by their 

tnilb, in the last caae'dted, the commia- ancestor ; and which was sastained. Com- 

sUmera were nothing mot« than special pare this with Jones v. Ferry, 10 Terg. 

adniniiiratoia. The legialative depart- 59, where an act authorizing a guardian 

ment, in paasing these acts, tnrestigated to sell landi to pay the anceator's debts 

Dothii^ oor did as act which cmild i>e wea lieid void. 



by Google 



12fi CONSTITDTIONAL LIMTTATIONS. [CH. Y. 

was decided by the Supreme Court of Michigan. Uuder the 
act of Congreua " for the relief of citizens of towns upon the 
lands of the United States, ander certain circuniBtances," ap- 
proved May 23, 1844, and which provided that the trust under 
said act should be conducted '* under such rules and regulations as 
may be prescribed by the legislative authority of the State," ic, 
the legislature passed an act authorizing the trustee to give deedy 
to a person named therein, and those claiming under him ; thus 
undertaking to dispose of the whole trust to the person thus 
named and his grantees, and authorizlDg no one else to be con- 
sidered or to receive any relief. This was very plainly an at- 
tempted adjudication upon the i-ights of the parties concerned ; 
it did not establish regulations for the administration of the 
trust, but it adjudged the trust property to certain claimants 
exclusively, in disregard of any rights which might exist in 
others; and it was therefore declared to be void.' And it has 

1 Caih, Appellant, S M!ch. 19S. The no neceuity. and altogether void, u de- 
case of Powen v. Bergen, 6 N. T. 858, ia priTlng the owners ot their property con- 
perhaps to be referred to anothpr princi- trary to the " law of the land." At the 
pie than that of encroachment upon judi- aame time the authoritj of thote casei, 
cial authority. That waa a case where where It haa been held that the legiala- 
the legiilature, b; special act, had nnder- ture, acting aa the guardian and protector 
taken to authorise the aie of property, of thote who are disabled to act for 
not for the purpose of satisfying lieni themselTes by reason of iofancy, lunacy, 
iq)on it, or of meeting or in any way pro- or other like cause, may constituiionaUy 
Tiding fbr the neceuities or wants of the pass either general or private laws, under 
owners, but solely, after paying expeoaea, which an effectual disposition of titeir 
for the iuTestment of the proceeds. Jt property might be made, was not quet- 
appears fhim thai case (hat the executors tioned. The court cite, with apparent 
under the will of the former owner held approval, tlie cases, among others, of 
the lands in trust for a daughter of the Kice k. Parkman, 16 Haaa. 326 ; Cochran 
testator during iier natural lite, with a v. Van Surlay, 20 Wend. 366 ; and Wil- 
Tested remainder In fee in her two chll- kinson v. Inland, 2 Pet. 637. The caae of 
dren. The special act assumed to em- Ervine's Appeal, IB Penn. St. 266, waa 
power tliem to sell and convey the similar, in the principles Involved, to 
complete fee, and apply the pruceeda, Powers e. Bergen, and was decided in Ibe 
jfrit, to the payment of their comniis- same way. See also Kneaaa's Appeal, 31 
aions, costs, and expenses ; ireond, to the Penn. St 87 ; Maxwell d. Goelachius, 40 
discharge of aasesiments, liens, diarges, N. J. 38S; e. o. 29 Am. Rep. 242, and 
and incumbrances on the land, of which, compare with Eer t. Kitchen, IT Penn. 
however, none were shown to exist ; and St. 433 ; Martin's Appeal, 23 Penn. 483 ; 
Aird, to Invest Ihe proceeds and pay over Hegarty's Appeal, 75 Penn. St. 508 ; 
the income, after deducting taxes and Tharpo. Fleming. 1 Houston, 580. There 
charge*, to the daughter during her life. Is no consUtutional objectioii to a statute 
and after ber decease to convey, assign, which tranafen the mere legal title of a 
or pay over Ihe same lo tlie parsons who trustee to the benefldary. RefonDed P. 
would be Hidlled nnder the will. The D. Church ■>. Uott, T Paige, 17 ; a. o. 8S 
cotirt regarded this at an unauthorixed Am. Deo. 013. 
ioterfeieiice with private proper^ upon 



by Google 



OH. v.] POWERS EXKECISEaS BY LEQISLATTVE DBPAETMBNT. 127 

also been held that, whether a * corporation has been [* 106] 
guilty of abnse of authority under its charter, ao as justly 
to subject it to forfeiture,' and ■whether a widow la entitled to 
dower in a specified parcel of land,> axe judicial questions which 
caoDot be decided by the l^slature. In these cases there are 
necessarily adverse parties ; the questions that would arise are 
essentially judicial, and over them the courts possess jurisdiction 
at the common law ; and it is presumable that legislative acts of 
this character must have been adopted carelessly, and without a 
due consideration of the proper boundaries which mark the sep- 
aration of tegislatiye from judicial duties." As well might the 
legislature proceed to declare that one man is indebted to another 

> Sute V. 'Sojti, 47 He. 18n ; Citmp- dple tee AJbertaon v. Landau, 42 Conn, 

belle. Uaion Bank, 6 How. (MiM.) SQl ; 206. And see p«f, p. 'SBfi. 

Canal Co. e. Railroad Co., 4 G. A J. 1, 22 ; * Edwards i>. Fope, 4 HI. 4B6. 

Regenta of Unirenitj d, Williami, G. * Tbe unjiut and dangennu character 

& J. 386. In Mioert' Bank of Dubnque of legislation of Chia description ii well 

». L'nited States, 1 Morris, 48^, a clauM itated by the Supreme Court of Pennsjl- 

la m charter antborizlng the legiilatare to ranla: " When, in the eiercise of proper 

repeal it for any abiue or nii>n*er of cor- legislative poweri, genera] laws are enact' 

porata priTileges was held to refer the ed which bear, or maj' bear, on the whole 

qoeationot abuse to the legislative judg- cominunlt7,if tbejarennjusCaDdagainat 

stent. In Erie t North East R. R. Co. the «pirit of the Constitution, the whole 

r- Catef. 26 Fenn. St. 287, on the other communitr will be Interested to procure 

hand, it was held that tbe legislature tlieir repeal bj a voice potential. And 

could not conclude the corporation hy ita that is the great security for just and 

repealing act, but that the question of fair legislation. Bat wlien Individuala 

abnae of corporare atitbority would be are selected from the mass, and laws are 

one <if Hct to be passed upon, if denied, eniuted sAcling their properly, without 

by a jury, so that the act would be valid summons or notice, at the instigation of 

or void as the jaty should find. Com- an interested party, who is to stand up 

pare Flint & Fentonville P. R. Co. b, toi them, thus isolated from the moss, in 

Woodbnll, 86 Midi. 98; h. c. 12 Am. Rep. injury and injustice, or where are they 

2S3, in wliich it was held that the reser- to seek relief from such acts of despotic 

ration of a power to repeal a charter power) They have no refuge but In the 

for vioUtion of its provisions necessarily courts, the only secure place for deter- 

p reac oted a jndicinl question, and the mining conSicting rights by due course of 

repeal must be preceded by a proper ju- law. But if tlie judiciary give way, and 

dicial finding. In Carey it, Giles, 9 Qa. In the longoage of the Chief Justice In 

253, tbe appointment by tbe legislature of Greenoagh v. Oreenough, in 11 Penn. St. 

a receiver for an lusolveitt bank was an«- 489, 'confesses Itself too weak to stand 

tsined ; and in Hindman t>. Piper, 50 Mo. against the antagonism of the legislature 

S92, a legiilative appointment of a trustee and the bar,' one independent co-ordloale 

waa also sustained in a peculiar case. In branch of the government will become 

Lolhrop s. Sleadman, 42 Conn. 6B3, the tbe subtervlent handmaid of another, and 

power of tba legislature as an administra- a qniel, insidious revolution be efTect. 

live measure to appoint a trustee to take ed in the administration of the govern- 

diBTge of and manage the affairs of a ment, whilst its fbrm on paper remains 

enrpontion whose charter had been re- the ssme " Ervine's Appeal, 16 Penn. 

peated, was afflrmed. For a slmUar prin- St 266, 268. 



by Google 



128 CONSTITUTIONAL LIMITATIONS. [CH. V. 

in a sum specified, and establish by enactment a conclugive de- 
mand against him.^ 
[• 107] * We bave elsewhere referred to a number of cases where 
statutes have been held unobjectionable which validated 
legal proceedings, notwithstanding irregularities apparent in them.* 
These statutes may as properly be made applicable to judicial ss 
to ministerial proceedings ; and although, when they refer to such 
proceedings, they may at first seem like an interference with 
judicial authority, yet if they are only in aid of judicial proceed- 
ings, and tend to their support by precluding parties from taking 
advantage of errors which do not affect their substantial rights, 
they cannot be obnoxious to the chaige of usurping judicial power. 
The legislature does, or may, prescribe the rules under which the 
judicial power is exercised by the courts ; and in doing so it may 
dispense with any of those formalities which are not essential to the 
jurisdiction of the court ; and whatever it may dispense with by 
statute anterior to the proceedings, we believe it may also dispense 
with by statute after the proceedings have been taken, if the court 
has failed to observe any of those formalities. But it would not 
he competent for the legislature to authorize a court to proceed 
and adjudicate upon the rights of parties, without giving them an 
opportunity to be heard before it ; and, for the same reason, it 
would be incompetent for it, by retrospective legislation, to make 
valid any proceedings which had been had in the courts, but 
which were void for want of jurisdiction over the parties. Such a 
legislative enactment would be doubly objectionable : jirat, as an 
exercise of judicial power, since, the proceedings in court being 
void, it would be the statute alone which would constitute an 
adjudication upon the rights of the parties ; and second, because, 
in all judicial proceedings, notice to parties and an opportunity 
to defend are essential, — both of which they would be de- 
piived of in such a case.' And for like reasons a statute vali- 

1 A slalute is Toid which nndertake* * In HcDaniel d. Correll. 19 HI. 22S, it 

to make niLlroiid companies liable for the appeared that a itatute liad been pused 

expense of coroneri' inquesta and of tbe to make valid certain legal proceedinfta 

burial of peraotis djiag on the cars, or bj which an alleged vil! irag adjndged 

killed by col iiaion or other accident occur- TOid, and vhich were had againit non. 

ring to the care, iireipective of any quea- resident defendnnti, over whom the coitrti 

tion of negligence. Ohio & M. R. R. Co. had obtained no jurisdiction. The court 

D. Lacke.v, 78 III. 65; a. o. 20 Am. Rep. aay: "If it was competent for the tegis- 

256. latnra to make a void proceeding ralid, 

■ SeeposI, pp. *8T1-*3B1. then it has been done in this case. Upon 



by Google 



OB. T.3 POWSaS EXEBCiaSD BY LEGIBlJLTIVE DEPARTMENT. 129 

dating proceedings • had before an intruder into a judicial [• 108] 
office, before whom no one is authorized or required to 
appear, and who could have jurisdiction neither of the parties oor 

of the Buhject-matter, would also be void.' 

Uiii qvHtion we cannot for a monwnt dedared 10 be void. The Iegi«latare then 
doubt or hesitate. The; can no moro im- psiied an act declaring that they " are 
part a binding efficacy (o a coid proceed- hereby uonfirmed, and the aame ihall be 
ing, tlian they can take one mao'i prop- talien and deemed good and valid in lav, 
erty IVom him and give it to anotlier. to all inlenta and pnrpo«e* nhatioever." 
Indeed, to do the one ii to accomplish the Un the question o( the validity of chis act 
otiier. By ttie decree in this case tlie irill the court say : " The precise question is, 
in qoeitian waa declared void, and, con- whether it can be held to operate bo as to 
•eqaentJy. if effect be given to the decree, confer a jurisdiction over parties and pro- 
Ibe l^adea given to those absent defend- eeedings which it has been judicially de- 
•au by the will are taken from them and tennined did not exist, and give valid- 
given to others, according to our itatnle ity to acts and processas which have been 
<rf descents. Until the passage of tlie aiiliudged void. The sCatement of this 
act iD ques^n, they were not bound by question seems to us to suggest tlie ob- 
Ihe verdict of the Jury in Ihis case, and vious and decisive objeution to any con- 
it coald not form the basis of a valid atmction of the statute which would lead 
decree. Had the decree been rendered to such a conclusion. It would be a di- 
before the passage of tlie act, It would rect eierciia by tlie legislature of a pow- 
hare been as competent to make that er in ita nature clearly judicial, from the 
valid at it was to validate the antecedent use of which it is expressly prohibited by 
proceedings upon which atone the decree the thirtieth article of the Declaration of 
endld rett The want of jurisdiction over Rights. The line which marks and sepa- 
tke defendants waa as fatal to the one as rates judicial from legislative duties and 
it coald be to tlw other. If we assume fbnctions is often indistinct and uncertain, 
the act to be valid, then the legacies and It is sometiines difficult to decide 
which before belonged to the legatees within which of the two classes a particu- 
have now ceased to be theirs, and this lar autgect fUls. All statutes of a decla- 
reanll ha* been brought about by the ratory nature, which are designed lo in- 
legislative act alone. The effect of the terpret or give a meaning to previous en- 
act upon ttiern is precisely the same as if actments, or to confirm the rights of par- 
it had declared in direct terms that the ties either under their own contracts or 
legacies bequeathed by this will to these growing out of the proceedings of courts 
defendants shonld not go to them, but or publicbodieii. which lack legal validity, 
shonid descend to the heira-at-law of the involve in a certain sense the exercise of 
teatalor, according to our law of descents, a judicial power. They operate upon 
This it will not be pretended that they subjects which might properly come with- 
eould do directly, and they had no more in the cognizance of die courts and fortn 
■athority to do it indirectly, by making the basis of judicial consideration and 
ptoee c diags binding upon them which judgment. But they may, nevertheless, 
were void in law." See, to the same ef- be supported at being within the legiti- 
fect, Richards b. Rote. 68 Fenn. St. 248 ; male sphere of legislative action, on the 
Pryor p. Downey, 60 Cat. S88; s. o. 10 ground that they do not declare or deler- 
Am, Rep. 66a ; Lane p. Nelson, 79 Penn, mine, but only confirm rights ; that they 
8t 407; Shook n. Brown, 61 Peon. St. give effect to the acts of parties according 
220; Spra^ s. Sfariver, 25 Penn. St. 282. to their intent; that they furnish new and 
' In Denny v. 'Mattoon, 2 Allen, SOI, more efflcatdons remedies, or create a 
■ judge in insolvency liad made certain more beneficial interest or tenure, or, 
onlerf in a caae pending in another juris- by aupi^ying defects and curing infbnnal- 
dietJoa, and wbiiJi tha courts subsequently itiea in the proceedings of courts, or of 



by Google 



OONSTITUTIONAI, LIMITATIONS.- 



[* 109] ' * Zeffiilaiive Divorce; 

There is another daaa of cases in vhich it woald seem that 
actioD ooght to be refened exclusively to the judicial tribuoals, 

but in respect to which the prevailing doctrine seems to 

[* 110] be that the legislature * has complete control unless spe- 
cially restrained by the State constitution. The granting 

pablic oScen ftcting within the «cop« of tioo In inch nuuiaet u to change the 
their authority, thej ^ve eOect to acta to decivioti of caaea pending before coarta, or 
which ihete wai tlie expreti or implied to Impair or ict a«ide their Jndgmenta, or 
aiasnt at the partiM inlereated. StatntM to take caaet ont of the aeltled courw of 
which are intended lo accompliih auch jadioiai proceeding. It ii on thia prin- 
purpotea do not neceiaarilr inrade the ciple that it haa been Ueld that the legla- 
proTince, or direotljr interTsre with the ao- lature have no power to grant a new 
tion of judicial trlbnnala. But if we adopt trial or direct a rehearing ofa canw which 
the broadest and moct compreheniive haabeenoncejadicialtjKttled. Theriglit 
Tiew of the power of the legialatore, ne to a review, or to tr; anew facts which 
muit place (oroe limit beyond whicli the haTe been determineil by a verdict or de- 
anthorily of the legiilatnre cannot go cree, depends on fixed and well-aettled 
without trenching on the clear and well- priuciple*, which it I* the duty of tlie 
deSned boundariea o( judicial power." court to apply in the exercise o( a sound 
"Although It may 1m difflenlt, if not im- judgment and discretion. These cannot 
possible, to lay down any general mle be regalated or goremed by legltlatire 
which may serve todetennine. in all cases, action. Taylor e. Place, 4 R. I. 324, 837 ; 
whether the limits of constitutional re- Lewis b. Webb. 8 Me. 830 ; Dechastellux 
straint are overetepped by the exercise by v. Fairchild, 16 Penn. St. IS. A foriiari, 
one branch of the government of powers an act of the legislainre cannot set aside 
exclnsively delegated to another, It ce> or amend flnal Judgment* or decrees." 
talnly is practicable to ^jply to each ca«e The court fnrther oonslder the general 
as it arises some test by which to aacer- sabject at length, and adjudge tlie partio- 
taln wlielher this fundamental principle is nlar enactment under consideration vmd, 
violated. If, for example, the practical both as an exercise of judlciai authority, 
operation of a statute it to determine and also becanse, in declaring valid the 
advenary suits pending between parly void proceedings In Insolvency against 
and party, by substituting in plsce of the the debtor, under which asaigneet had 
well-aettied rnles of law the arbitrary will been appointed, it took away tW>m the 
of the legislature, and thereby controlling debtor his property, " not by due process 
the action of the tribunal before which of law or the law of the land, bat by an 
the aoita are pending, no one can doubt arbitrary exercise of legislative will." 
that it would be an unauthorized act irf See, further. GrifBn'i Executor o. Can- 
legislation, because it directly infringes on ningharo, 30 Grat. 109 ; State v. lirAienj, 
the peculiar and appropriate ftanetinns of 60 Me. £04. In proceedings by tenants 
the Judiciary. It is the exclusive province for life, the estate in remainder was or- 
of courts of justice to apply established dered to be sold ; there was at the time IM 
principles to cases within their jusisdio. authority for ordering sn(A a sale. Ilwaa 
tion, and to enlbice their deci^ons by held tobevidd,*nd inuipableofconflnna- 
TendwIng Judgments and executing them tion. Maxwell >. Qoetsehins, 40 H. J, 
by suitable process. The legislature have 388 ; i. o. 29 Atn. Bep. 343. 
no power to Inteifcre with this Jurisdio- 



by Google 



CB. v.] POWKR8 ESEEcaSBD BY LBQ18LAT1TB DBPABIMBHT. 181 

of divoroes from the bonds of matrimony was not confided to the 
oonrts in England, and £rom the earliest days the Colonial and 
State legislatures in this countiy have assumed to possess the same 
power over the subject which was possessed by the Parliament, and 
from time to time they have passed special laws declaring a disso- 
lution of the bonds of matrimony in special cases. Now it is 
clear that " the qaeation of divorce iovolTes iuTestigations which 
are properly of a judicial nature, and the jurisdiction over di- 
Torces ought to be confined exdusiTely to the judicial tribunals, 
under the limitations to be prescribed by law ; " ' and so strong is 
the general conviction of this fact, that the people in Aiming 
their conetitations, in a majority of the States, have positively 
forbidden any snch special laws.' 

> i Kent, loe. See Levin* c. 81«ator, or ipecial law on the following tpecifled 

S Oreene (Iowa), 007. object* ; . . . Ormatiag dirorcei. Mcuta- 

' The following weconitltDtJoDiI pro- ciiuettt: All caiuei of marTiage, diTorce, 
Tiuoiu: — Aiahama: Divorce* from the and alimony , . . (ball be beard and de- 
iMndi of matrimonj ihsll not be granted tennined \>j the OoTemor and Council, 
bat in the caae* by law provided for, and ontU the legiilature ihall bj law make 
bjr init In cbaocerjr ; but decre«* in chan- other proviaion. Mimnippi .■ IHvorce* 
ceiy for divoroe ifaall be final, unlets ap- from the bond* of niatrimoQj shnlt not 
pctUed from in the manner pretcribed by be granted but in caiei provided for bj 
law, within three month* ftom the dale of Uw, and by init in cbancer;. Miitauri: 
tbe enrolment thereof. ArkaJoa* : The The General Aieembl; ihall not paia anj 
General Aasemblj *hall not have power local or apecial law . . . granting divorce*. 
to paaa an; bin of divorce, bat may pre- In Colorado the provitionii the same. Naa 
•eribe by law the manner in which aoch Haiapilun! All cauee* of marTtage, di* 
caae* may be inveitigated in the coort* of vorce, and alimony . . . shall be heard and 
Jostice, and divorces granted. CaUJonua: tried by the Superior Court, until the leg- 
Mo divorce shall be granted b; the legts- Islature shall by law make other provision, 
ktnre. The proviaton i< the same or aim- Neic York i . . . nor shall any divorce be 
Daria Iowa, Indiana, Maryland, Michigan, granted otherwise than by due judicial 
Hinneaota, Nevada, Nebraska, Oregon, proceeding*. North Carolina : The Qen- 
New Jertey, Teia*, and Wiiconsin. Flor- eral Assembly shall have power to pas* 
s^.- DivoTCSs from the bonds of matrt- general taw« regnlating divorce and al>> 
moaj iball not b« allowed bat by the mony, but aliall not have power to grant 
JudgawDt«f a coort, a* shall be prescribed a divorce or secure alimony in aoy pai^ 
by law. Gmnyia: Tbe Saperior Court ticularcaM, Ohio: The General Assem- 
■hall havB ezdnsive Jurisdiction In all biy shall grant no divorce nor exercise 
ease* of divorce, both total and partial, any jndldal power, not herein expressly 
Itaeu; Tbe General Assembly shall not conferred. Pemtylrania : The legislature 
paaa . . . apecial laws ... for granting shall not have power to enact laws annnl- 
divoreea. JToiuiu: And power to grant ling the contract of marriage in any case 
divorcea is vested in tbe DiUrict Conrt* where by law the courts of this Common- 
•vbject toregnlatlonsbylaw. Kmbtdeg; wealth are, or hereafter may be, em* 
Tbe General Assembly shall have no powered to decree a divorce. TVriwssmi 
power to grant divorces, . - . bat by gen- The legislature shall have no power to 
era] laws shall etmfer inch powen on the grant divorces, bat may authorize the 
«MDts of joaiice. Lcumatta: The Gen- court* of jottice to grant them for inch 
cfmt rt *siiiiihlj ihall not pa** any local oanaea ■■ m^ be spedfled by law ; bnt 



by Google 



182 CONBTITOTIONAL LIMITATIONB. [CH. V. 

[" 111] * Of the judicial decisions on the subject of legislative 
power over divorces there seem to be three da^es of 
oases. The doctrine of the first claas seems to be this : The 
granting of a, divorce maj be either a legislative or a judicial act, 
according as the legislature shall refer its consideration to the 
courts, or reserve it to itself. The legislature has the same full 
control over the ttatus of husband and wife which it possesses 
over the other domestic relations, and may permit or prohibit it, 
according to' its own views of what is for the interest of the par- 
ties or the good of the public. In dissolving the relation, it 
proceeds upon such reasons as to it seem sufficient ; and if in- 
quiry is made into the facte of the past, it is no more than is 
needful when any change of the law is contemplated, 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 misconduct oi 
unfitness in the parties. As in other cases of legislative action, 
the reasons or the motives of the legislature cannot be inquired 
into ; the relation which the law permitted before is now forbid- 
den, and the parties are absolved firom the obligations growing 
out of that relation which continued so long as the relation 
existed, but which necessarily cease with its termination. Mar- 
riage is not a contract, but a status ; the parties cannot have vested 
r^hta of property in a domestic relation ; therefore the legislative 

■nch liwi ihall be gcDerml and uniform culiar. A wom&n procured a divorce from 

In tbeir operation throughout the State, lier huabnnd, and by the ta* then in force 

Virginia: The legitlature shall confer on he wm prohibited from marryirg again 

tbe courts the power to grant dirorCBt, eiceptuponleaTeprocnredfromthecourt. 

. . . but Bball not by ipecial legislation He did marry again, however, and tlie 

gnuit relief in such cases. iVetl Virginia; legislatnre passed a special act to affirm 

The Circuit Courts shall have power, this marriage. In pursuance of » require- 

nnder such general regnUCioni ai may be ment of the constitution, jurisdiction of all 

prescribed by law, to grant divorces, . . . cMesofmarriageanddiTorcehadpreviou*- 

but relief shall not be granted by special ly been Tested by law in the courts. Held, 

legislation in «uch cases. Under the Colt- thatthislook(h>mthelegislaloreallpower 

stitulion of Michigan, it was held that, as to net upon the subject in special caies, 

the legislatnre was prohibited from grant- and the attempt to validate the marriage 

ing divorces, they could pass no special was consequently ineftectnal. That the 

act authorizing the canrti to divorce for a legislature possesses antborily to validate 

cause which was not a legal cause for marriages and to give legitimacy to the 

divorce under the general laws. Teft v. children of invalid malriBgea, where the 

Teft, 8 Mich. 07. See also Clark ». Clark, constitution bB« not taken it away, see 

10 N. H. 880; Simonds v. Simonds, 108 Andrew* v. Fa«e. 3 Heisk. 053; poU, 

Mass.6T2;B.ci.4 Am.Rpp.6T6. Thecase *S78. 
of TThite V. White, 105 Uass. 825, was pe- 



by Google 



CH. T.] POWERS BXBSCISBD BT UeOISLATITB DEPABTUBNT. 183 

act does not come under coDdemnation as depriTing parties 
of * rights oontrttry to the law of the land, but, as io other [' 112] 

cases witbia the scope of the legislative authority, the 
legiiilative Trill must be regarded aa sufficient reason for the rule 
which it promulgates.' 

I Tbe tekdiDg cue od tliii labject ia aeven jean' abieoce uoheanl of. The 
StacT B. Feue, 8 Conn. 641. On the que*- law liu reniRined in nbataDCe Ihe aame 
lioii whether * divorce ii neceauuily t, m il woa when enacted in 1667. During 
jndlcul act, tbe court aa j : "A furtbei all thii period the lEgiilature has ioler- 
objcction ia ui^ied agaJnat thiaact; Tii., fered like the ParliameotofGreatBtiUin, 
that bf the new conililmion of 181S, and ptuied apecial acta of divorce a mn- 
there is an entire aeparation of the legii- cu!o matrinonii ; and at almost ererj aea- 
lati*e and judicial department!, aod that aion iince the ConstituUoo of the United 
die legiilature can now paaa no act or Stalea went Into operation, now fort;-two 
reratntion not clearly warranted bj tliat J.ean, and for tbe thirteen yeart of the ex- 
conalitution ; that the conatitulloo U a iatence of the CoDaCitution of Connecticut, 
grant of power, and not a limitation of tuch acta hare been, in mulliplied caaea, 
{Mwen already posaeaaed; and, in short, paued and lanctioned by the conatitnted 
that lliere ia no reaerved power in the auLhuritiea of our State. We are not at 
kgiilature aince tlie adoption of thia con- liberty Io inquire into tbe wiadom of oor 
aliiulion. Freciaely tbe opposite of thia exiating law on thii snbject; nor into 
b true. From the lettlemeut of the Slate the expediency of such frequent interfer- 
there hare been certain fundamental rulee ence by the legislature. We out onl;^ 
by which power haa been exercised. These inquire into the conatitutionality of the 
mips were embodied in an instrument act under consideratioh. Tlie power ia 
called by some a canatiiution, by othera a not prohitnted either by the Conatituti<Hi 
charter. All agree that It was the first of the United Sutea or by that of thii 
Donatitntinn ever made in Connecticut, State. In view of the appalling eonse- 
and made, too, by the people themielves. quences of declaring the general law 
It gave very exlenalve powers to the of tlie State or the repeated acta of 
legislature, and left too much (for it left our legislature onconstilutiona] and void, 
everything almoet) to their will. The cunsequeDcea easily conceived, but not 
constitution of 1818 proposed to, and in easily expressed, — such m bastardttiiig 
bet did, bioil tliat will. It adopted cer- the iiaue and auhjecting the parties to 
lain general principlea by a preamble punishment ftor adultery, — the court 
called a Declaration of Rights ; provided should come to the reault only on a *r4- 
fbr the election and appointment of cer- emn conviction that their oatha of office 
tainorgansof Ihegovemment.sDch aa the and these conatltutlona imperiously de- 
legislative, executive, and judidal depart- mand it. Feeling myself no such convio- 
Menis; and imposed upon them certain tlon, I cannot pronounce tbe act void." 
realraints. It found the Sute aovereign Per Dagjttt, J ; Hoiner, Ch. J., and Bittell, 
and independent, with a legialatiTe power J., concurring. PeCa^, J., dissented. Upon 
capable of malting all laws necessary for the same subject see Crane u. Meginnis, 
tbe good of the people, not forbidden by 1 G. A J. 463 ; Wright c Wright, 2 Md. 
Ihe Constitution of the United States, nor 429; Gaines b. Gaines, 9 B, Monr. 205; 
opposed to the lonnd maxims of legisla- Cabell e. Catiell, I Uet. (Ky ) 819 : Dick- 
on ; and it left them in the aame condi- son r. Dickson, 1 Yerg. 110 ; Melizet's 
tion, except *o f ar aa limitations were Appeal, IT Penn. St. 440; Cronise v. 
provided. There Is now and has been a Oonise, 54 Penn. St. 256; Adama t. 
law in force on the subject of divorces. Palmer, 61 Me. 480 ; Townsend v. Griffln, 
TbelawwaapassedonebuadredHRdthlrty 4 Harr, 440; Noel e. Swing, 9 Ind.ST; 
years ago. It providca for divorces a n'n- and the examination of the whole subject 
(Mlswufrnmii in Ibnr cases; via., adultery, by Mr. Bishop, Ilk his work on Marriage 
It eontract, wlUol desertioii, and and Divorce. 



by Google 



184 OOBSIXIUTIOKAL LUCITATKUn. [CH. T. 

[" 118] * The Beoond clmss of oases to which we have alladed 
hold that divoroe is a judicial act in those cases apon 
whic)i the general laws confer on the courts power to adjudicate ; 
and that oonsequently in those oases the legislatnre cannot pass 
special laws, but its foil control over the relation of marriage will 
leare it at liberty to giant divorces in other cases, for such causes 
aa shall appear to its wisdom to justify them.^ 

A third class of cases deny altogether the authority of these 
special legislative enactments, and declare the act of divorce to 
be in its nature judicial, and not properly within the province of 
the legislative power.' The most of these decisions, however, 
lay more or less stress upon clauses in the ooQBtitutions other 
than those which in general terms separate the legislative and 
judicial functions, and some of them would perhaps have beea 
differently decided but for those other clauses. But it is safe to 
say that the general sentiment in the legal profession is against 
the rightfulness of special legislative divorces ; and it is believed 
that, if the question could originally have been considered by the 
courts, unembarrassed by any considerations of long acquiescence, 
and of the serious consequences which must result ^m affirming 
their unlawfulness, after so many had been granted and new re- 
lations 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 eioce been introduced. Fortunately 
these provisions render the question now discussed of little prac- 
tical importance ; at the same time that they refer the deoisioD 

' LeriDi n. SlwtM, 2 OneiM (low*), * Brigbmm i>. MiUer, 17 Ohio, 445; 

6Hi Opiniou of Jndgei, la He. 479; CUrk ». Cluk, lON.H. 380; Ponder ,. 

Adsmi V. Palmer, &1 Me. 480. See iU*o Graliam, 4 fla. 23 ; Suue v. Frj, i Uo. 

TowKMDd V. GrUBii, 4 Hur. 440. In • ISO; Brjion d. Campbell, 12 Mo. 4Sei 

well-reaioned case in Kentucky, ic wu Btyion v. Bryion, IT Mo. 690; Same v. 

held that a legiilatiTs dirorce obtained Same, 44 Mo. 232. Seealio JoQe*i>. Jonea, 

on the application of one of tiie parClei 12 Penn. St. SBO, SU. Under the Conati. 

while init for diTorce «a* peadiag in a tntion of Haiaadiusetti, the power ctf the 

court of competent joriadiction would legialature to grant diTorcei is denied, 

not aSect the rigliU to property of the Sparhawk b. Sparhawk, 116 Maa«. 316. 

ot)>er,gTowlng outof therelation. Qaloea See clause in conititutloD, fin's, p.*110, 

E>. Qaioes, 9 B. Moar. 2B6. A. atatate per- note. Where a court is given appeliats 

mitting divorces for oflbnce* committed jurtidiction in all caaea, it ia not compe- 

liefore ita pasaage ia not an tx poMt facU tent hj statute to forbid its reTening > 

law in the oon«titnti(H>al sense. Jones v. decree of dirorce. Tiemej e. Tierney, 1 

Jones, 8 OTerton, 2 ; i. o. 6 Am. Deo. Wash. Ter. fi6B. See Nichola v. Grifl^ 

016. 1 Wuh. Ter. S74. 



by Google 



Ca. v.] FOWKB8 BXXSCiaED BT I.BOiaLATITB DBPABTMEKT. 135 

* upon applications for dirorce to those triban&ls which [* 114] 
mast proceed upoD inquiry, and caiuiot condcmo with- 
out a hearing.^ 

The force of a legislative divorce most io any case be confined 
to a dissolution of the relation ; it can only be justified on the 
ground that it mei«ly lays down a rule of conduct for the parties 
to observe towards each other for the future. It cannot inquire 
into the past, with a view to punish the parties for their ofiences 
against the marriage relation, except so &r as the divorce itself 
oan be r^arded as a punishmeDt. It cannot order the payment of 
alimony, for that would be a judgment ;* it cannot adjudge upon 
confiictiug claims to property between the parties, but it must 
leave all questioos of this character to the courts. Those rights 
of property which depend upon the continued existence of the 
relation will be terminated by the dissolution, but only as in any 
other case rights in the future may be incidentally affected by a 
obaoge in the law.' 

Legislative Sneroachmentt upon Executive Power. 

If it IB difficult to point out the precise boundary which sepa- 
rates legislative from judicial duties, it is still more difficult to 
discriminate, in particular cases, between what is properly legis- 
lative and what is properly executive duty. The authority that 
makes the laws has large discretion in determlniug the means 
dirough which they shall be executed ; and the perform- 
ance of * many duties which they may provide for by law (_• 116} 
they may refer eitbeP to the chief executive of the State, 

^ If marriage i«a iDRtter of right, then "rightful powers of legiatatioii " which 

It woold teeiD that any particular mar- our eonatitatioai oonfer upon the le^U- 

riage that partie* might Iswfully form tire department, a relation eKential to 

ibey raiut have a lawful right to coDCinae organised d ill aodety might be abrogated 

In, nnleu by mltbehayior they inbject entirely. Single le^tatlve dWorcea are 

tbem«el*es to a fbrfeitare of the right, bnt ilngle itepi towards thii barbarlim 

And if the legislature can annnl the rela- which the application of the same piln- 

tioD in one caae, withoat any finding that clpte to erery indivldnal case, by a gen- 

a breach of the marriage contract hai eral law, would neoeiMrilj bring npon hi. 

been committed, then It would teem that Bee what ii Mid by the Supreme Court 

tbey might annul it in every caie, and of HiMotvi in Bryson v. Bryion, 17 Mo. 

•*en prohibit all partie* from entering fiOO, 6M. 

bito the aame relation in the ftitnre. The * Crane v. Heginnls. I Q. ft J. 468; 

recognition of a (all and complete con- Potter's Dwarrli on Statutes, 486; po*, 

ml of the relation in tbe legislature, to p. * 406. note. 

be eiercisBd at its will, lead* loeritAbly ■ Slur >. Peaie, B Coon. 61L 



by Google 



186 CONSTITUTIONAL LIMITATIONS. [CH. T, 

or, at their option, to any other ezecutire or ministerial officer, or 
even to a person specially named for the duty.* What can be 
definitely said on thia subject is this: That such powers as are 
specially conferred by the coDstitutiou upon the governor, or 
upon any other specified officer, the legislature cannot require or 
authorize to be performed by any other officer or authority ; and 
from those duties which the constitution requires of him he can- 
not be excused by law.' But other powers or duties the executive 

* Thii ii iffinned in the recent uue of office wu «aid, in T«.ylor c. Common- 

BridgcB V. SliMllccoM, 6 W. V». 682. The wealih, 8 J. J. Mareh. 401, to be intrino- 

GODBtitution of tint Sute proTtdea Chat the callj sn eiecKtive act. In a certain eenae 

fo»eroor ahail nominate, and by nnd with thi» is doabtlna lo, but it would not fol- 

tlie advice and consent of the Senate ap- low Ibat tlie legislature conld eierciae no 

point, all offlcerg whoae offlcea ere eatab- appointing p*wer, or could confer ncne 

liahed hy the Conilitntion or shall be on ochera than the chief execative of the 

createdby law.andwhoBoappoinlnientor Stale. Where llie constitution conlaini 

election ianototherwiseproTidedfor, and no ne^tiie worda to limit the legisUtir* 

Uiat no luch offlcera alull be appointed or authority in this reicard, the legiglatnre 

elected by the legislature. The court de- in enacting n 1r w must decide for itself 

cided thai this did not precludu the legia- wliat are the suitable, convenient, or ne- 

lature from creating a board of public cesaary agencies for ita execution, and (he 

workt of which the State officera should authority of the eieculive mnat be limited 

be ez officio the members. And see State to taking care timt the law is executed by 

V. CoTiugton, 2Q Ohio Sc 102. such agencies. See Baltimore v. State, 

« Attorney-General v. Brown, 1 Wis. 15 Md. 876. 
613. " Whatever power or duty i* ex- Wlibre the goremor has power lo nt- 

preaaly given lo, or imposed upoD, the move bo officer for neglect of duly, he ia 

executive department, ia altogether free the sole judge whether Ihe duty lias been 

from tiie interference of the other branch- neglected. Slate v. Doherty, 25 La. Add. 

es of the government. Especially ia thia lit); b. c. 13 Am. Rep. 181. See, as to 

the case where the subject ia committed discretionary powers, ante, p, *41, note- 
to the ditcrttton of the chief executive offl- The executive, it has been decided, liaa 

cer, either by the constitution or by the power to pardon for contempt of court 

laws. So long as the power is vested in State u. Saavinet, H La. Ann. 119 ; s. c 

him, it is to be by him exercised, and do 13 Am. Rep. 116. A general power 

other branch of Che trovemment can con- to pardon may be exercised before as 

trol its exen:ise." Under the Constitu- well aa after conviction. Lapeyre v. 

tion of Ohio, which forbids the exercise United States. IT Wall. 191 ; Dominick 

cf any uppoin ting power by the iegisla- c Bowdoin, 44 Ga. 367 ; Grubb v. Bui- 

ture, except aa therein authoriied, it was lock, 44 Ga. 379. The President's power 

held that tiielegialature could not, by law, to pardon does not extend to the restora- 

constitute certain designated persons a tion of property which has been judicially 

State board, with power to appoint com- forfeited. Knotc v. United States, 10 Ct. 

misslonen of the State House, and direc- of CI. 897, and 95 U. S. 149 ; Osbom v. 

ton of the penitentiary, and lo remove United Slates, 01 U. S. Rep. 474. The 

such directors fur cause. Stale v. Ken- pardon may be granted by general proc- 

non, 7 Ohio St. 546. And see Davis n. lamaCion. Carlisle d. United States, 16 

Stale, 7 Md. 161 ; also Bridges e. Shall- Wall. 147 ; Lapeyre o. United Slates, 17 

croas and State v. Covington, referred lo Wail. 181, One receiving a full pardon 

in preceding note. Aa lo what are public from the Preaident cannot afterwards be 

officers, see State r. Sunley, 86 N. C. 6a ; required by law to establish loyalty as a 

s. c. B Am. Rep. 488. An appointment to condition to the assenion of legal rtglits. 



by Google 



OH. T.] POWEBS EXBBOISBD BY LEaiSLATlVE DBPABTMEHT. 1S7 

eanaot exercise or assume except by legislaUve authoTity, and the 
power which in its discretion it confers it may also in itu diii- 
cretioD withhold, or confide to other hands.' Whether in those 
cases where power is given by the constitution 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 govern 
the proceedings in the courts, may perhaps he a question.' 

CuUila V. United Stale*, 10 Wmll. 147. been •ctiullj earned bj attendance or 
Not Ik prasccoted in ■ civil action for not. The leguUtive rule, therefore, can- 
tbe ume >i:U fur wliich ha it pardoned, not go to the extent of compelling an ex- 
United States D. McKee, i Dill. 128. Par- eculite offluer lo do lometliing elw than 
doa remoTe* all ditabilitieareaolting from tua duQ', under any pretence of tegola- 
cuDTiction, and may be (rranled after len- lion. TLe power lo pardon oSendera is 
tence exeunted. Stale c. Foley, 16 Kev. veeted by the leTeral State conatitutioDi 
M; B.C. 87 Am. 'Rep.4^. in the goTemor. It i« not, however, a 

> " Id deciding Ihie qaealion [as to the power which neceuarily inherei in the ei> 

aatliority of Die governor], recurrence ecutive. State c. Dunning, Ind. 20. And 

mut be lL«d to ilie constitution. That aeTeral of the State vongtitutioue have 

fnrniihn the only rule by which tlie proTlded that itahall l>e exeruiied under 

ooart can be governed. Tliat !■ the char- luuh regulalioni ag iliall be pre«ciibed by 

tar of tlie goveraor'a authority. All the law. Tliere are proviaioni more or leu 

powers Jetegaled to him by or in accord- broad to thii purport in thoM of Kan«a«, 

aoce witli that inatrument, he is entitled Florida. Alabama, Arkansai, Texaa, Uia- 

loexerciae, and no otiieri. Tlie conatitu- aiuippi, Oregon, Indiana, Iowa, and Vir- 

tiOD ia a limitation npon the powera of ginia. In State d. Dunning, 9 Ind. 20. an 

Ae legialative department of the govern- act of tlie legiaUture requiring the nppll- 

ment. bui it i« to be regarded a> a grant cant for the remitaion of a flne or torfei- 

of powera to the other departmcnta. ture lo forward to the governor, with Ilia 

Kcither the execnlive nor tlie judiviary, applitsiion, tlie opinion of certain county 

therefore, can exercise any authority or offlcera aa to the propriety of the remia- 

pewer except anch aa is clearly granted aion, was auatained as an act within the 

by the conatitntlon." Field d. People, 8 power conferred by the conatitotinii upon 

U. 79. 80. the legislature to prescribe regulations in 

* Whether the legislature can consti- these cases. And see Branham v. Lange, 

tutlonally remit a fine, when the pardon- Ifl Ind. 407. The power lo reprieve i* 

JBg power is rea>ed in the governor by not Inclnded in the power lo pardoa Ex 

Ibe constitution, baa been made a ques- jxtru Howard. 17 N. H. 645. It lisa been 

lioa; and the caaes of Haley D.Clarke, 26 decided thattogiveparlieswha have been 

Aim. 489, and People d. Bircham. 12 Cal. convicted and fined tlie benefit of the In- 

fiO. are opposed to each other npon ^a solvent laws is not an eien:ise of the pa^ 

point. If the fine is payable to the State, doning power. Ex parte Sent t, ID Ohio 

perhaps tlie legialature shonld be consid- St. 581. And where the constitution pro- 

eredaa havingthesamerightlodtscharge vided that "In all criminal and penal 

It that they would have to release any cases, except those of treason and im- 

olber debtor to the State fhim his obliga- peachment, [the governor] shall have 

tion. In Morgan v. Bufflngton, 21 Ho. power to grant pardons after conviction. 

(W, it was held that the Suie auditor was and remit fines and forfeltnres." &c.. it 

■ot obliged to accept as canclusive the was held that tlils did not preclude the 

etftiflcala fhim the Speaker of the Houae legislature from passing an act of pardon 

as to the turn due a member of the Bonae and amneaty for partiea liable to prosecu- 

tir attendance upon it. but tliat he might tlon. but not yet convicted. State c 

UwbUy inquire wbethartbaamoont bad NichoU, 36 Ark. 74 ; a. c. 7 Am. Bep. 60a 



by Google 



188 CONBTITQTIONAL LIMITATIONS. [OH. T. 

[" 116] It vould Beem * that this must depeod generally upon the 
nature of the power, and upon the question whether the 
constitution, in conferring it, has furnished a sufficient rule for 
its exercise. Where complete power to pardon is conferred upon 
the executive, it may be doubted if the legislature can impose 
rastrictions under the name of rules or regulations ; but where 
the governor is made commander-in-chief of the military forces 
of the State, it is obvious that his authority must be exercised 
under such proper rules as the legislature may prescribe, because 
the militaiy forces are themselves under the control of the legis- 
lature, and military law is piescribed by that department. There 
would be this clear limitation upon the power of the legislature 
to prescribe rules for the executive department ; that they must 
not be such as, under pretence of regulation, divest the executive 
of, or preclude his exercising, any of his constitutional prerog- 
atives or powers. Those matters which the constitution specifi- 
cally confides to him the legislature cannot directly or indirectly 
take from his control. And on the other hand the legislature 
cannot confer upon him judicial authority ; euch as the authority 
to set aside the registration of voters in a municipality;' or 
clothe him with any authority, not executive in its nature, which 
the legislature itself, under the constitution, is restricted from 
exercising.' 

It may be proper to say here, that the executive, in the proper 
discbaige of his duties, under the constitution, is as independent 
of the courts as he is of the legislature.' 

Pardoni maj be made coadidoDal, and Hd. 673 ; TenneNW, Ac. R. R. Co. •. 

forfeited if tb« coudition tt not obaerved. Hoor«, 813 Ala. STt ; Hiddlelon v. Lowe, 

StaW ti. Smith, 1 Bailey, 288; Lee ■>. 30 CaL 690; Harpending r, Halght, 89 

Hurphj, 22 OnU. 789 ; Re RuU, 6 Saw- Cal. ISS ; i. c. 2 Am. Rep. 43-J ; Chnma- 

ja, 183. KN B. FolU, 2 Montana, 243. In t)M 

1 State e. Suten, 6 Cold. 3S3. following caie* the power haa been de- 

* Smith 0. Norment, 6 Yerg. 271. nied : Hawkini v. Gorernor, 1 Ark. 670 ; 

■ It hai been a diiputed queetton Low *. Towm, d Oi. S60; State r. Kirk- 

whether the writ of mandamvi will lie wood, 14 Iowa, 162 ; Dennett, Peiittoner, 

to compel the performance of ekecutiTfl 82 He. 610; People n. Bitsell, 16111.229; 

duties. In Che following caies the power People b. Tates, 40 III. 126 ; State o. Oot- 

bai either been exprettl; affirmed, or iC emor, 25 V. J. 831 ; Mannn v. Smith, 8 

h«« been exerdaed without being qnea- R. I. 102; 8t«te d. Warnioth,22 La. Ann. 

tioned. State v. Uoffltt, 6 Ohio, 366; 1 ; e. c. 2 Am. Rep. 712; Same ». Baim, 

State D. GoTernor, 6 Ohio fit. 620 ; Coltin 24 La. Ann. 861 ; a. c. 13 Am. Rep, 120 ; 

v. Gllla, 7J(inea (K.C.),546; Chamberlain People d. Oovernor, 20 HiiA. 820; a. o. 

t). Sibley, 4 Minn. 809 ; Magrn^r d. Oot- 18 Am. Rep. 89 ; Stale v. OoTernor, 80 

ernor, 26 Md. 173 ; Groome p. Qwinn, 48 Uo. 888. In Hartranfc'i A]^^, 86 Penn. 



by Google 



CH. Y.^ POWBBS SXBBCISED BY LBQISLAIIVB DBFABTMBNT. 189 



Lelegating Lfgislative Pover. 

One of the settled maxims in constitutional law ia, that the 
power conferred upon the legislature to make laws cannot be 
del^ated hj that department to any other body or authority. 
Where the sovereign power of the State has located the authority, 
there it must remain ; and by the constitutional agency 
alone * the laws must be made until the constitution [* 117] 
itself is changed. The power to whose judgment, wis- 
dom, and patxiotiBm this high prerogative has been intmsted 
cannot relieve itself of the reaponubili^ by choosing other agen- 
oies upon which the power shall be devolved, nor can it substi- 
tute the judgment, wisdom, and patriotism of aay other body 
for those to which alone the people have seen fit to confide this 
sovereign trust.' 

St. 433 ; s. c. S7 Am. Bep. 667, It wu daputiM, to be from time to time choKO 

dadded thst the goTciDor wu not labject bj themidTet. 

to the tubpoD* of tb« gnnd Jnrj. In " Foarthlg. The legUUtire neLther 

MiDncwta it teemt tliat offlcen of the mait nor c&d transfer the power of 

■lecatlre department are exempt from making Uwi to injbody elw, or place 

jndid*! procsM erea in the caie of minis- it anj'wbsre but where the people haTe." 

terial dntiM. Bice v. Anitin, 19 HiniL Locke on Civil Ooremment, j 113. 
103; Connt^Treaanrerv. Dike, 20 Minn. That leBiilaUve power cannot be del- 

aSS; Wcatem B. R Co. ■. De Graff, 27 egaied, tee Thonw v. Cramer, 16 Barb. 

Minn. I. 112; Bradley «. Bailer, 15 Barb. 122; 

1 " Theae are tba twunda which the Barto n. Himrod, 8 N. T. 46S ; People r. 

tnut that ia put in them b; the awnetj, Stont, 33 Barb. US ; Bice tr. Foaler, 4 

and tlw law of God and nature, hare Harr. 479 ; Santo v. State. 2 Iowa, 16fi ; 

Mt to the legialatire power of every Oeebrick v. SuU, 5 lona. 491 ; Stale v. 

Common wealth, bi all fbrmi of goTem- Beneke, 9 Iowa, 203 ; Slate b. Weir, S8 

■anl :— Iowa, 134 ; a. c. 11 Am. Sep. 116 ; Pe^ 

" FittL They are (o govern by pro- b. Collina, 8 Mich. 348 ; Bailroad Com- 

mnigated eatabtiahed law*, not to be pany e.Comniiuionenof CUntonCouniy, 

mied in partknlar caaei, but to ha»e 1 Ohio St. 77 j Parker v. CnmmoD- 

one nile for rich and poor, for the fa- wealth, S Penn. St. 507 ; Commonwealth 

Torite at coort and the coniiti7man at r. HcWilliami, 11 Penn. St. 61 ; Haiie v. 

piMVli- State, 4 Ind. S42 ; Meshmeier k. Sute, 11 

" Stawfijr. Tbeae laws alio ought to Ind. 4S2 ; State v. Parker, 26 Vl. 367 ; 

be deaignad for no otliei end nltimately Stale d. Swiaher, 17 Tet. 441 ; Sute v. 

bat the good of tiia people. CopeUnd, 3 R. I. SS ; Slate *. Wilcox, 46 

** TVrdL/. They muat not raiie taxea Mo. 468 ; Commonwealth o. Locke, 72 

BO the proper^ of the people without the Penn. St. 491; Ex parte Wall, 48 CaL 

conaeot of the pei)p]e, given by tliem- 279; Willi* «. Owen, 48 Tex. 41 ; Farn*. 

lelrea ot their d^utiea. And thii prop, worth Co. ». Liibon, 62 Me. 461 ; Brewer 

erty concemi oolj *nc)i government* Brick Co. v. Brewer, 62 He. 62 ; State r. 

when the legi*Utive U alwayi in being, Hndtoo Co. Com'r*, 87 B. J. 13 1 Andiloi 

or at least where the people tiave not re> k Holland, 14 Boah, 147. 

served ai^ part of the leglilatiTe to 



by Google 



140 COKSTITOTIONAI. LUUTATIONB. [CH. V. 

But it is not always essential that a legislative act should be a 
completed statute which must in any event take eGTect as law, at 
the time it leayes the hands of the legislative department. A 
statute may be conditional, aud its taking effect may be made to 
depend upon some subsequent event.' Affirmative legislation 
may iu some cases be adopted, of which the parties interested 
are at liberty to avail themselves or not at their option. A private 
act of incorporation cannot be forced upon the corporators ; they 

may refuse the franchise if they so choose.' In these 
[• 118] cases the legislative • act is regarded as complete when it 

has passed through the constitutional formalities necessary 
to perfected legislation, notwithstanding its actually going into 
operation as law may depend upon its subsequent acceptance. 
We have elsewhere spoken of municipal corporations, and of the 
powers of legislation which may be and commonly are bestowed 
upon them, and the bestowal of which is not to be considered as 
trenching upon the maxim that legislative power must not be del- 
egated, since that maxim is to be understood in the light of the 
immemorial practice of this country and of England, which has 
always recognized the propriety and policy of vesting in the 
municipal organizations certain powers of local regulation, in 
respect to which the parties immediately intei'csted may fairly be 
supposed more competent to judge of their needs than any central 
authority. As municipal organizations aie mere auxiliaries of the 
State government in the important business of municipal rule, the 
legislature may create them at will from its own views of pro- 
priety or necessity, and without consulting the parties interested ; 
and it also poBsesses the like power to abolish them, without 
stopping to inquire what may be the desire of the corporators on 
that subject.^ 

> Brig Aurora v. United StatM, 7 Babcoek, 28 Pick. S8i, S44. Not to nter 

Cnnch, 8S2 ; Bull n, Send, IS Grai. TS ; the queBCion of extending manidpal 

Btate r. Parker, 20 Vt. 367 ; Peck v. Wed- boundariei to a cnart where iunei may 

dell, IT Ohin Sl 271 ; State v. Kirkle7.20 be formed and disputed &ct« tried. But- 

Md. 86: Walton b. Greenwood, 60 Me. linglon v. Leebrick, 48 Iowa, 262. Il la 

S56 ; Baltimore d. Clunet, 23 Md. 449. competent to mnke an act take effect on 

It il nut a delegation of legitlative povrer condition Ehkt thoie applying for it ihall 

(□ make the repeal of a charier depend erect ■ sta^on at a place named. Stat* 

upon the failure of the corporation to v. New Haren, &c. Co., 48 Conn, flfil. 
make up a deflciencj which is to be * Angell and Aniea on Corp. S 81. 
•uertained and determined hy a tribunal * Cit; of Patterion n. Socletj, &c., 84 

prorided b; the repealing act. Iiothrop N. J. 386 ; Cbeany v. Hooeer, S B. Monr. 

e. Stedmui, 42 Conn. 688. See CteaM d. 830 ; Berlin o. Gorham, 34 N. H. 266. Tbe 



by Google 



CH. v.] POWCUS EXERCISED BY LEGIBLATIVE DEPARTMEKT. 141 

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, aa well as in the general quei»- 
tion whether they shall originally be or afterwards remain incor- 
porated at all or not, and aa the burdens of municipal government 
muat rest upon their shoulders, and especially as by becoming 
incorporated they are held, in law, to undertake to dischai^e the 
duties the charter imposes, it seems eminently proper that their 
voice should be heard on the question of their inoorporation, and 
that their decisions should be conclusive, unless, for strong rea- 
sons 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 pecu- 
liarly interested does not seem to be questioned, and the reference 
is by DO means unusual' 

* For the like reasons the question whether a county [* 119] 
or township shall be divided and a new one formed,' or 
two townships or school districts formerly one be reunited,* or a 
city charter be revised,* or a county seat located at a particular 
place, or after its location removed elsewhere,' or the municipality 

qDwtianof * leree tax ninj tnwftiUj be comb, SI Me. ST2 ; Erlinger v. Boneaii, 

ntmei to the *otera of the diitrict of 61 HI. 04 ; Lammerl u. Lidwell, S2 Mo. 

lenitory over which it ii propoied to IBS ; State t. WilL'OX, 45 Mo. 468 ; Bran»- 

•prtad tb« tax, regaHlec* of mnnicipal wick c. Finne}', 64 Qa. 317 : Reiponse to 

dtriiioiw. Alcorn o. Hamer, 3B Hiu. House Heiolulion, 66 Mo. 296. 
CeX. And aee, in general, Angell and ^ State b. Refnolda, 10 111. I. See 

AiDte iKi Corp. S 81 and note ; alio pod, SUte p. McNiell, 24 Wit. 14g. Responae 

p^* 190-* 192. to Houae Reiolution, 65 Mo. 296. For 

1 Boll V. Read, IS Orat. 78 ; Coning other caiei on the ume general tubjecl, 

p.GTeene,23Barb.S3;Moiforde. Unger, lee People v. Nail;, 49 Cal. 478; Pike 

8 Iowa, 82 ; City of Fatterwin c. Society, Coonty v. Bames, 61 Miia. 805 : Briint- 

Cc, 24 N. J. 886; Gortiam c Springfield, wick u. Finney, 64 Ga. S17. The quea- 

Sl Me. 68 ; Commonwealth v. Judgei of tion whether a general achool law ihall 

Qnarter SeMiom, 8 Penn. 8t 891 ; Com- be accepted in a particniar municipality 

Monwealth d. Fainter, 10 Fean. St. 214 ; may be referred to iu voten. State v. 

Call V. CludboQnie, 46 He. 206 ; State v. Wilcox, 46 Ho. 468. 
Scott, 17 Mo. 621 ; Stale r. Wilcox, 46 ■ Comm<HiweaUli d. Jndgpi, &c, 8 

Mo. 468 ; Hohwt b. Snperviaon, Im., 17 Penn. St. 891 ; Call v. Chadbonme, 40 

CaL 33; Bank of Chenango v. Brown, 26 Me. 206 ; People v. Nally, 48 Cal. 478; 

N. T. 467 ; Steward f. JefTetvon, 8 Harr. Erlinger c. Boneau, 51 III. 94. 
IU; Bnrgen r. Fue, 2 Gill, 11 ; Ufay- • Branawiclc v. Finney, 64 Oa. 817. 
MIe, ftc R. R. Co. v. Geiger, 84 Ind. 186. * Common weallh v. Painter, 10 Penn. 

Ttic Tight to refer to the people of leTeral St. 214 ; Oarke v. Jack, 60 Ala. 271. See 

■midpalitiea the qneation of their con- People v. Salomon, 61 111. 37 ; Slinger v. 

nUdation waa di^ioted in Smith t. Mc- Henneman, 88 Wii. 604 ; patt, pp. • 124- 

Canhy, 66 Penn. Sl 866, hot •oitaiDed *l^ 
^ the coon. And aea Smyth v. Til- 



by Google 



142 CONSTITDTIOKAL LOnTATIOlia. [CH. V. 

contract particalar debts, or esgnge in a particular imprOTement,^ 
is alwaya a question which may with propriety be referred to tlie 
voters of the municipality for decision.' 

The question then arieeR, whether that which may be 
[* 120] done in * reference to any municipal oi^anization within 
the State may not also be done in reference to the State 
at large ? May not any law framed for the State at large be 
made conditional on an acceptance by the people at large, declared 
through the ballot-box ? If it is not unoonsdtational to delegate 
to a single locality the power to decide whether it will be gov- 
erned by a particular charter, mast it not quita as dearly be 

^ There are many cue* in which Anror* c. Weat, 9 Ind. 74 ; Cotton v. Com- 

monitipal labtcripliont to works of inter- miMionera of Leon, 6 !Fla. 610 ; Cope* o. 

■Ml Improvement, Duder tUtutei empaw- Chvleiton, 10 Rich. 461 ; Commiwlonen 

ering them to be mkde, hare been lus- of Knox Cuuntj v. Aiplnwall, 21 Hoir. 

lamed ; among others, Qoddio k. Crump, 539, and 24 How. 326 ; Same v. WalUce, 

8 Leigh, 120; Bridgeport e- HouMtonic 21 Hon. 647; Zabriakier. Railroad Co., 28 

Railroad Co., 16 Conn. 476; StArin o. How. 381 ; Ame7 e. Mayor, &c, 24 How. 

Oenoa, 29 Barb. 442, and 23 S. Y. 4S9 ; Set ; Gelpcke v. Dubuqoe, 1 Wall. 175 ; 

Bank of Rome v. Village of Rome, 18 Thonuon v. Lee Coontr, 3 WalL 827 ; 

N. T. 38 ; Pretlyman e. Saperviaon, Ac, Rogers v. Burlington, 3 Wall. 664 ; Gib- 

19111.406; RobertioDD. Hockford, 21 111. bona d. Mobileft Great Northern Railroad 

461; Johnson t>. Stack, 24 111.76; Bush- Co., 36 Ala. 410 ; Si. Joseph, ftc. Railroad 

nell B. Belolt, 10 Wis. 105 ; Clark e. Janes- Ca d. Buchanan Ca Court, 30 Mo. 48S ; 

*ille, 10 Wis. 186; Stein e. Mobile, 24 State u. Linn Co. Court, 44 Mo. 604; 

AU. 691 ; Mayor of Wetumpka v. Win- Stewart u. Saperrison of Polk Co., 80 

ter, 29 Ala. 661 ; Pattisou p. Tnba, 13 Iowa, ; John a. C. R. A F. W. R. R. Co., 

Cal. 176; Blnndinft r. Burr, 13 Cal. 34S; 35 Ind. 589; Leavenworth County •. 

Uobart V. Supervisors, Ac, 17 Cal. 28; Miller, 7 Kan. 479 ; Walker e. CiscinDati, 

Taylor d. Newberne, 2 Jonea £q. 141; 21 Ohio Bt. 14; £> parte Sdma, &o. R. R. 

Caldwell d. Juaticas of Burke, 4 Jones Co., 46 Ala. 896 ; S. ft V. R. R. Co. ■>. 

t:q.323; Louisville, Ac Railroad Co. d. Stockton, 41 Cal. 149. Insereralof ttien 

Davidson, 1 Sneed, 687 ; Nicho] v. Mayor the power to anlhorize the municipalJtiea 

of Nashville, 9 Humph. 262; Railroad to dedde upon itich anbacrtptlons haa 

Co. *. Contmiuionera ot Clinton Co., 1 been contested aj a delegation of legialn- 

Ohio St. 77 : Truateea oF Paris e. Cherry, live authority, bat the courts — even 

8 Ohio St. 661 ; Caas c. Dillon, 2 Ohio St. those which hold the snbMsriptiona Toid 

607; Slate e. Commlisioners of Clinton on other grounds — do not look upon 

Co., 6 Ohio St. 260 ; Slate d. Van Home, theae cuea aa bdng obnoxiona to theooa- 

TOhioSt.8Z7; Slateu.TrosteesofUnioa, stilutional prineipta refeired to In the 

8 Ohio St. 894 ; Trustees, Ac. t>. Sho«- text 

maker, 12 Ohio St 624; Slaie r. Com- 'WhaleTer powers the legislature may 

mlssioneti of Hancock, 12 Ohio St. 506; delegate toany ptiUicagency for eserciae. 

Power* V. Dougherty Co., 23 Ga. 66; it may itielf reaume and exercise. Dyer 

San Antonio e>. Jonea, 28 Texas, 19; Com- d. Tuscaloosa Bridge Co., S Port 396; 

monwealth v. HcWilUams, 11 Penn. St. e. c. 27 Am. Dec 666. But this must be 

81 ; Sharpleaa v. Mayor, Ac, 81 Penn. St. nnderatood with the exception of thoae 

147 ; Moers r. Reading, 21 Penn. St. IBS ; caaea io which the CoMHtntlon of tbe 

Talbot c Dent, 9 B. Uonr. 626 ; Slack n. Slate reqnirca local matt«n to be rego- 

Railroad Co., 13 B. Honr. 1 ; City of St. lated by local authority. 
Loois V. Alexander, 23 Ho. 483; City of 



by Google 



CH. V.} POWERS BXEECISBD BY LBOI8LAITYB DEPASTUENT. 148 

vithin the power of the legislature to refer to the people at large, 
from whom all power is derived, the deoiaion upon any proposed 
statute a£Fecting the whole State ? Aod can that be called a del- 
egation of power which GODsistB only in the agent oi trustee refer- 
ring back to the principal the final decision in a case where the 
principal is the party concerned, and where perhaps there are 
questions of policy and propriety invcWed which no authority can 
decide so satisfactorily and- so conclusively as tiie principal to 
whom they are referred ? 

If the decision of these questions is to depend npon the weight 
of judicial authoi-i^ up to the present time, it must be held that 
there is no power to refer the adoption or rejection of a general 
law to the people of the State, any more than there is to refer it 
to any other authority. The prevailing doctrine in the courts 
appears to be, that, except in those cases where, by the constitu- 
tion, the people have expressly reserved to themselves a power of 
decuiioQ, the function of l^slation cannot be exercised by them, 
even to the extent of accepting or rejecting a law which has been 
framed for their consideration. . " The exercise of this power by 
the people tn other cases ia not expressly and in terms prohibited 
by the constitution, but it is forbidden by necessary and unavoid- 
able implication. The Senate and Assembly are the only bodies 
of men clothed with the power of general legislation. They 
poasess the entire power, with the exception above stated. The 
people reserved no part of it to themselves [with that exception], 
and can therefore exercise it in no other case." It is therefore 
held that the I^islatnre have no power to submit a proposed law 
to the people, nor have the people power to biud each other by 
acting upon it. They voluntarily surrendered that power when 
they adopted the constitution. The government of the State is 
democratic, but it is a representative democracy, and in passing 
(:eneral laws the people act only through their representatives in 
the legislature.' 

1 Par Atg^ht, Ch. J., hi Baito b. Blm- tickble and inconilitent with tin raprr- 

rod, 8 N. r. 481 It ii worthy of conild- HnUHve (jileoi ; but tn take ths opinion 

Mation, howeTer. whether then it an; ot the people upon a hill already framed 

tbiOK in the nleicnce of a itataie to the bj reprawntatiTM and lubmittad to them, 

people for acceptance or rejection which ia not only practicable, bat is in predte 

ia inoonaiitent with the repreAentatire accordance with the mode in which the 

■TMm of BOTcnimeiit. To refer it to the conrtitatioa of the State 1* adopted, and 

people to frame and agree npon a itatnte with the action which ia taken in many 

Sir tbaiMdvM would be eqaallj imprao- other caaea. The repretentatlre in tbeee 



by Google 



144 CONSTITUTIONAL LIMITATIONS. [CH. V. 

[* 121] * Nor, it aeems, can such legialatiou 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 on which a law may be made to take efifeot maat 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 the opinion of the law-mabers depends. On this ques- 
tion of expediency the legislature must exercise its own judg- 
ment definitively 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 hftppen. They appeal to no other man or 
men to judge for them in relation to its present or future expedi- 
ency. They exercise that power themselves, and then perform 
the duty which the Constitution imposes upon them." But it 
was held that in the case of the suhmis^on of a proposed free-, 
school law to the people, no such event or change of circumstances 
affecting the expediency of the law was expected to happen. The 
wisdom or expediency of the School Act, abstractly considered, 
did not depend on the vote of the people. If it was unwise or 
inexpedient before that vote was taken, it was equally so after- 
wai-ds. The event on which the act was to take effect was noth- 
ing else than the vote of the people on the identical question which 
the constitution makes it the duty of the legislature itself to 

decide. The legislature has no power to make a statute 
[* 122] dependent on such a * contingency, because it would be 

confiding to others that le^slative discretion which 
they are bound to exercise themselves, and which they cannot 
delegate or commit to any other man or men to be exercised.* 

cases hut nilfllled preciBel? thote function! bimKlf. 8«e Smith a. Jmeirille, 26 Wit. 

which tlie pniple ai ■ democracy could 291; Fell r. State, 42 Md. 71 ; B.C. 20 Am. 

not fulfll ; and where the cue hai reached Bep. 83 ; King v. Reed, 43 N. J. 186. 
a stage irhcn the bodj of tlie people can ' Per Ruijgln, Ch. J.. In Barto o. Him- 

act withont confaiion, the representatiT* rod, 8 N. Y. ^8. And lee Santn a. State, 

has stepped aside to allow their opinion to 2 Iowa, 1% ; Stale d. Beneke, 9 Iowa, 208; 

be eipresEed. The tegislatuie is not at- State v. Swisher, 17 Tez. 441 ; Sute «. 

tempting in soch a case to tlelegate its Field, 17 Mo. 629; Bank of Chenango o. 

authoritytoanewflgenc}', but the trustee. Brown, 20 N. Y. 467; People c. Stoat, 23 

Tested with a large diicrellonaTy author Barb. 846 ; State v. Wilcox, 4b Mo. 468 ; 

itj, it Uklng the opinion of the principal £x pant Wall, 48 Cal. 279, SIS; Brown 

upon the necessity, policy, or propriety n. Fleischner, 4 Greg. 132. The power 

of an act which is to goTem tlie principal to tax cannot be delegated except as by 



b, Google 



CH. v.] POWEEB EXBBOISBD B7 LBGlSLATrVB DEPABTMENT. 145 

* The same reasons which preclude the original enact- [* 123] 
ment of a law from being referred to the people would 

the Conititntioii iiparmitted. Where the contiiiKeiicIei ii without all Jnit flmnilm- 
Conititution prorided tb»t the Oenend tion in lound policy or tound mtoninB, 
Anemblf ihkll hsTe power to anthorize and that it hu too often been made more 
tin lereral coaulice and incorporated from Deceiaity than choice, — rather to 
town* to impowtaxei forcooDtyand COT- eicape from an oTerwhelming atialo)or 
poration purposes reapectiTelf, it wa> held than from any obTJoui difTerence in prin- 
not competent to delegate the power to dpie in the two classei of caaei ; for , . . 
a lefaool board. Walerlioon v. Public one maj find any number of caaei in the 
Schooli, BBai, 898. But upon tbi* point legislation of Congreis, where (tatulea 
tlieie is gfeat fon:e in what ii said by hare been madedependentopon tbeihift- 
AfiOEeU.Ch. J.,in State d. Parker, SBTt ing character of the revenae laws, or 
357: "If the operation of a law may fairly the navigation laws, or commercial rules, 
be made to depend upon a ftature contin- edictt, or restrictions of other countries. 
gracy, then, in my apprehension, it makes In some, perhaps, these laws are made by 
no MaenUal dilfcrence what is the nature reprefentative bodies, or. it may be, by 
of the contingency, so it be an equal and the people of tfaete Stales, and in other* 
fair one, a moral and legal one, not op- by the lords of the treasury, or the boards 
posed to sotind policy, and so far con- of trade, or by the proclamation of the 
Bected with the object and purpote of the toTereign : and in all these cases no ques- 
statnte as not to be a mere idle and arbi- tion can be made of the perfect legality 
trary one. And to us the contingency, of our acts of Congress being made de- 
npon which the present statute was to be pendent upon such contingencies. It Is. 
mspeniled until another legislature should in ftct, the only posalble mode of meeting 
meet and haTe opportunity of reconsider- them, unless Congress ia kept constantly 
ing it, waa not only proper and legal, and In aesaion. Tfae tame ii true of acta of 
Just and monl, but highly commendable Congress by which power ia Tested in the 
aodcreditabletothelegislalurewhupaued President to levy troops or draw money 
the (tatnie; far at the rery threshold of fhim the public treasury, upon the con- 
inquiry into the expediency of such a law tlngency of a declaration or an act of war 
ties the other and more important inquiry, committed by some foreign state, empire. 
Are th« people prepsred for soch a law 1 kingdom, prince, or potentate. If these 
Can it be successfully enforced 1 These illustrations are not sufficient to show the 
qncatiDfu being answered In the affima- iklUcy of the argnment, more would not 
ii*e, be most be a bold man who would aralL" See also Slate e. Noyes, 10 Fost. 
emt Tote against the law ; and something 379 ; Ball d. Read, 18 Gral. 78 ; Johnson 
tDore moat he b« who would, after it had v. Rich, 9 Barb, 080 ; Stale v. Reynolds, 
been pMased with that assurance, be will- 10 III. 1 ; Robinson r. Bidwell, 22 Cal. 
JBg to embams* its operation or rejoice S79. In the recent case of Smith c. Jsnes- 
atiUdefeaL rille, 26 Wis. 201, Chief Justice Dixon 
" After a foil examination of the ar- discnatea this subject in the following lan- 
gumeitta by which it ia attempted to be gnage : " But it is said that the act is 
sustained that aiatutes made dependent roid, or at least so much of it as pertains 
npmi sDch contingencies are not ralld tothetaxstionot stiaresinnationalbaDhs, 
laws, and a good deal of study and reflec- because it was submitted to a vote of the 
liosi, I RiDst dedare that I am ftilly con- peo|de, or prorided that it should take 
TiBoed — although at flrst, without much effect only after approval by a majority 
eaamination, aowewhat indined to the of the electors voting on the subject at 
sanw opinion — that the opinion ia the re- the next general election. This was no 
*altirffidseanalDgies,and«ofonndedupon more than providing that the act should 
a latent fallacy. It seems to me that the lake effect on the happening of a certain 
diatiftctioD attempted between the contin- future contingency, that contingency be- 
ftaej of ■ popular Tola aitd other future ing a popular vote in it* favor. No one 



by Google 



146 COKBTIXnTIONAL LIHITATIOHB. [OH. T. 

render it equally inootnpetent to refer to their deciuoo the ques- 
tion whether an existing law should be repealed. If the one is 
" a plain surrender to the people of the law>making power,'* so 
also is the other.' It would seem, however, that if a legislative 
«ct is, by its terms, to take effect in any contingency, it is not 
unconstitutional to make the time when it shall 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 
tlie latter contingency.' It would also seem that if the question 
of the acceptance or rejectiou of a municipal charter can be re- 
ferred to the voters of the locality specially interested, it would 
be equally competent to refer to them the question whether a 

donbU the genentl power of the legiila- be any. The whole reuonlDn of tht^t 
tura to make lucli regulationi and condi- cue goei Co ahow Chat lliii act miut be 
tioni M it plewes with regard to the valid, and to it bu been held in tlie bett- 
laking effect or operation of laws. Thej coniidered caiei, aa will be seen hy refer- 
may be abioluCe, or conditional and con- ence to that opinion. We are conitrained 
tintrent : and if the latter, they ma; take to hold, therefore, that this act ig and was 
eflect oti the happening of any erent in alt reapecCs valid front tlie time it took 
whiuh ia future and uncertain. Inttancea effect, in NoTember, 1866; and come- 
of thi* kind of legialation are not unfre- quentl; that there waa no want of author- 
quent. Tlie law of Congreaa auapending Ity for (he levy and collection of the taiet 
the writ of Aoifua corpm during the late in queilion." Thi* deciiiion. tliough op- 
rebellion is one. and aeveral olliera are re- poaed to many ottiert, appean to ua en- 
ferred to in the caae In n Richard Oliver, (irely tound and reaaonahle. 
IT Wia. 8S1. I( bein^ conceded that the > Geebrick u. State. 6 Inwa, 491 ; Rice 
legidaCura poiaeaaea thia general power, v. Foater, 4 Harr. 47B ; Parker c, Com- 
the only question here would aeein to be, monwealth, Penn. St. 507. The caae in 
whether a vote of Che people in ftvor of G Iowa waa followed in State o. Weir, SS 
a law la to be excluded from the number Iowa, 134 ; a. c. 11 Am. Rep. 116. 
of thoae future contingent evenCa upon ' State v. Parker, 26 Vt. 357. The 
which it may be provided that it thall act under contidenttion in Chat ca*e waa, 
take effect. A aimilar queation waa be- by ita terma, to take effect on tlie aecond 
fore thia court in a late caae (State tx rel. Tueaday of March after ita paaaage, ui»- 
Attorney- General v. O'Neill, Mayor, &c., leaa the people Co wboae votea it waa aub- 
24 Wis. 143), and wsi very elaborately dia- mitted ahouid declare againar it, in which 
cnaaed. We cnrae unnninioiialy to the con- caae it ahould cake eflbct in the following 
cluaion in that case that a proviBian for a December. The caae was diatinguished 
ToteoftheelecCoraofthecityof Milwaukee from Barto v. liimrod, 8 N. Y. 488, and 
In favor of an act of (he legislature, before the act auatalned. At the same time the 
it ahould take effect, wa« a lawful contio- court ezpreat their diasent from (lie rea- 
geocy, and tliat the act waa valid. That soning upon which the New York caie 
waa a law afTecting the people of Mil- reata. In People t>. Collins, 3 Mich. 34S, 
wankee particularly, while (his was one the court was equally divided in a caae 
affecting the people of the wliole State, similar to that in Vermnnt, except that 
Therethelaw was aubmit(ed to the voters in the Michigan case the law which waa 
of (hat city, and here it waa submitted to paised and submitted cd the people in 
thoae of ihe State at large. What ia the 1853 waa not to go inco effect until 1870^ 
difference between (be (wo caaea ? It it if the vote of the people waa a^nat it. 
manifett, on principle, that there cannot 



by Google 



OH. v.] FOWKBS ZXXROIBXD BY LBQIBLATirB DBPABTHBNT. 147 

State law eatftblishiog a particular police regulation should be of 
force in sacb locality or not. Municipal charters refer most 
questions of local goTemment, including police regulations, to the 
local authorities ; on the supposition that tfaey are better able to 
decide for thentselves upon the needs, as well as the sentiments, 
of their constituents, than the legislature possibly can be, and are 
therefore more competent to judge what local regulations are 
important, and also bow tat the local sentiment will assist in their 
enforcement. The same reasons would apply in favor of permit- 
ting the people of the locality to accept or reject for themselTes a 
particular police regnlation, since this is only allowing them less 
extensive powers of local government than a mnnicipal charter 
would confer ; and the fact that the rule of law on that 
subject might be different in different * localities, accord- [* 121] 
ing as the people accepted or rejected the regulation, 
would not seem to affect the principle, when the same result is 
brought about by the different regulations which municipal cor- 
porations estaUish for themselves in the exercise of an undisputed 
authority.' It is not to be denied, however, that there is consid- 
erable authority against the right of legislative delegation in these 
cases. 

The legislature of Delaware, in 1847, passed an act to authorize 
the citizens of the several counties of the State to decide by bal- 
lot whether the license to retail intoxicating liquors should be per- 

' In N«w HamiMhlTe mn kct wM psMed illeyi.aiid otherplaceioTgunbling, the^ 

dedwing bowliiig'«lle7i, titnale witbin bmj aarelj pui !■■■ b> punith the Hune 

Iwcnty-llve rodi of k dweUing-honie, nnl- kcU, *nbject to be adopted bj tbe town 

MUKca, but tbe itatDte wu to be Id (brce before tbej can be of force in it." And 

odIj ia tlwM towni in wbieb it ihonld be it Kems to n* difflcult to sniwer Ihli m- 

ulopted in town meeting. Id Bt»te o, Moiog, If it be confined to inch lawa u 

Ho/ee, 10 FoaL STB, thi« «ct wu held to fill within the proper proTinoe of loc«l 

be ooiwtitalioaiL " AnaminK," m^ the goTernment, and which are therefore ud- 

mwt, " that tbe legitJatare hai the right all7 referred to the judgment of the mn- 

to coofer tlie power of local regulation olcipal anthoritiei or their cotiititueDCj. 

^oa citiee tad townt, that ii, tlie power A timilar queition aroea in Smith e. Vil- 

to psaa ordioancea and b^-lawi, in «nch lege of Adriui, 1 Mich. 496, but wa* Dot 

terme and with inch proriaioni, in the decided. Id Bank of Chenango v. Brown, 

duMt of caae* to which the power ex- 2S N. T. 407, It waa held competent to 

tcnda, aa tbej maj tliink proper, It leemi BuIbOTiie tlie elector* of an incorporated 

to oa hardlj poaiible aerioual; to contend Tillage to determine for thenuelTea wliat 

that tbe legtilature maj not confer the aecUoD* of the general act for the incor- 

power to Adopt wilbin inch monicipaljtj poration of viUsge* ihould tp^y to their 

a kw drawn np and framed 1^ them- Tillage. See, Ibrther, People d. Salomon, 

•elrca. It tbcr mar paaa a law aatbor- 61 HI. 37 ; Bnrgen r. Fue, 2 Gill, 11 ; 

izing town* to make ordinance* to punlth Bajumond «. fiainea, 26 Hd. Ml. 
tke keeping of biUiaidfooma, bowling- 



by Google 



148 ooNBTrrnnoNAL limitatioks. [ch. t. 

mitted. By this act a general election was to be held ; and if a 
majority of votes in any county should be cast against license, it 
should not thereafter be lawful for any person to retail intoxicat- 
ing Uquors within such county ; but if the majority should be cast 
in &vor of license, then licenses might be granted in the coun^ 
so voting, in the manner and under the regulations iu said act 
prescribed. The Court of Errors and Appeals of that State held 
this act void, as an attempted delegation of the trust to make laws, 
and upon the same reasons which support the cases before cited, 
where acts have been held void which referred to the people of the 
State for approval a law of general application.^ A like deci- 
sion was made near the same time by the Supreme 
[" 125] • Court of Penosylvania,* followed afterwards by others 
in lowa,^ Indiana,* and California.' But the decision in 
Pennsylvania was afterwards overruled on full discussion and 
consideration,^ and that in Indiana must, as we think, he deemed 
overruled also.' In other States a like delegation of authority to the 
local electors has generally been austfuned. Such laws are known, 
in common parlance, as Local Option Laws. They relate to sub- 
jects which, Uke the retailing of intoxicating drinks, or the run* 
ning at large of cattle in the highways, may be differently 
i^arded in different localities, and they are sustained on what 
seems to us the impregnable ground, that the subject, though not 
embraced within the ordinai-y power of the municipalities to make 
by-laws and ordinances, is nevertheless within the class of police 
regulations, in respect to which it is proper that the local judg- 
ment should control.* 

1 Ric« D. Foiler, 4 Hut. 479. 87; Com mon wealth n. Dean, ItO Mbbi. 

^ Parker v. CoTDDion«e»ltb, 6 F«nii. 867; Con raon wealth v. Frederick*, IIS 

St. GOT. See Commonwealth u. HcWil- Misa. 199; Bancrott v. Duma*, 21 Vt. 

liama, II Penn. St. 61. 466; Stinger o. Henneman, 38 Wis. 604; 

■ Geebrick D. Slate, 6 Iowa, 491. See EtUngeru.Boneau.Sllll.MjGunnai-Mobn 

SUte V. Weir, 83 Iowa, 184 ; s. o. II Am. r. Sleriing, 92 UI, 669 ; SMte v. Morria 

Bep. 116. Count7, 88 N. J. 72; s. c. 13 Am. Bep. 

* Maize a. SMte, 4 Ind. S42 ; Meah- 422; State v. Wilcox, 42 Conn. 804 ; a. c. 
meier p. State, 11 Ind. 4S2. See alio 19 Am. Bep. 636; Fell u. Sute, 42 Hd. 
State D. Held, IT Mo. 629; Lammert e. 71; a. C. 20 Am. Itep. B3 ; State v. 
Lidweil, 62 Ho. 168 ; Stale r. Copeland, 3 Cooke, 24 Hlnn. 247 ; a. c. SI Am. Rep. 
R. L 33. 844 ; Cain v. Commiuionera, 86 N. C 8 ; 

* £1 porta WaU, 48 Cal. 279; a. c. 17 Boyd n. Bryant, 35 Ark. 69; 8. c. 37 Atd. 
Am. Rep. 426. Bep. 6. Local option, u applied to the 

* Locke't Appeal, 72 Penn. St. 491 ; a. o. tale of liquors, has also been lattained in 
13 Am. Rep. 716. Canada. Mayor, &c. v. The Qneen. 8 

'> Oroesch b. State, 42 Ind. 647. Can. Sup. Ct. 606. 

* Commonwealth v. Bennett, 108 Uui. 



by Google 



CH. v.] POWBBS XXEBCIfiED BX LBGISLATITE DBPABTMENT. 149 



Irrejiealahle Laws. 

Similai reasons to those whicli forbid the legisIatiTe department 
of the State from delegating its authority will also forbid ita pass* 
ing any irrepealable law. The constitution, in conferring the leg- 
iskitive authority, has prescribed to its exercise any limitations 
which the people saw fit to impose ; and no other power than the 
people can superadd other limitations. To say that the legislature 
may pass irrepealable laws, is to say that it may alter the very 
constitution from which it derives its 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 
successors ; and the process might be repeated, until, one by one, 
the subjects of legislation would be excluded altogether from 
their control, and the constitutional provision that the 
'legislative power shall he veated in two houses would [* 126] 
be to a greater or less degree rendered ineffectual.' 

" Acts of Parliament," says Blackstone, " derogatory from the 
power of subsequent Parliaments, bind not ; so the statute 11 
Henry VII. c. 1, which directs that no person for assisting a king 
de facto shall be attainted of treason by act of Parliament or 
otherwise, is held to be good only as to common prosecution for 
high treason, but it will not restrain nor clog any parliamentary 
attainder. Because the l^islature, being in truth the sovereign 
power, is always of equal, always of absolute authority ; it ac- 
knowledges no superior upon earth, which the prior legislature 
most have been if its ordinances could bind a subsequent Parlia- 

■ "Ualike the decbioD of a court, *. not deatroj, the publ[c proiperitr- Everf 

legiilatiTe act doei not bind a subaequent legiBlalive body, unless reatrioted by the 

itgUlatarc. Each body poneuee the same conititution, ma; modify or aboliih the 

power, and hat a right to eierciie the acti of its predeceason ; irhnher it 

Mae diacretion. Heatares, though often would be «iie to do to ia a matter 

refected, DiayreceiTe legiilatiTeuDction. for legiatative discretion." Bloomer r. 

There ia no mode by which a legiilalive Stollej, 6 McLean, ]5S. See this *nb- 

td can be made irrepealable, except it ject considered in Wall r. State, 23 

aMame the form and tab»lance ot a con- Ind. ISO. and Stale f. Oskina, 29 Ind. 

tract. If io any line of iegialation a per- 364 ; Oleaon v. Green Bay, &c. R. R. Co., 

Btnent character coald be giren to act«, S« Wis. SS8. In Kellogg v. Oshkoth, 14 

(he most injDrious (smaequences would Wis, 623. it was held that one legislature 

molt to the cooDtry. Its policy would could not bind a fntore one to a pwticnlH 

bMome fixed and unchangeable on great mode of appeal. 
■atiMMl inlOMti, whldi might retard, tf 



by Google 



ISO ooHBTntmoHAL LoaiATiONB. [oh. t. 

ment And upon the same principle, Cicero, in Lis letters to 
Atticus, treats with a proper contempt these restraining clauses 
which eudearor to tie up the hands of succeeding legislatures. 
' When you repeal the law itself,' says he, ' you at the same time 
repeal the prohibitory clause which guards against such repeal.'" * 
Although this reasoning does not in all its particulars apply to 
the American legislatures, the principle applicable in each case 
ia the same. There is a modification of the principle, however, by 
an important provision of the Constitution of the United States, 
forbidding the States paflsing any laws impairing tlie obligation of 
contracts. Legislative acts are sometimes in substance contracts 
between the State and the party who is to derive some riglit under 
them, and they are not the less under the protection of the clause 
quoted because of having assumed this form. Charters of incor- 
poration, except those of a municipal character, — and which, 

as we have already seen, create mere agencies of govern- 
[*127] ment, — * 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 set- 
tled, by the decisions of the Supreme Court of die United States, 
that a State, by contract to tliat effect, based upon a consideration, 
may exempt the property of an individual or corporation from 
taxation for any specified period, or even permanently. And it is 
also settled by the same decisions, that where a charter containing 
an exemption from taxes, or an agreement that the taxes shall be 
to a specified amount only, is accepted by the corporators, the 
exemption is presumed to be upon sufficient consideration, and 
consequently binding upon the State.^ 

> I B). Com. W. 80 ni. 1« ; Morgm h. Cree. M Vt. 778; 

" Dutinoath College t>. Woodwud, 1 Spooner v. McConael], 1 McLean, 347; 

Wheot.^lB; PlanWn' Bank n. Sharp, 6 pott, p. •280. The right of a Bute legU- 

Bow. 301. kture to gr».nt away the rigbt of tan- 

* Gordon d. Appeal Tax Court, 3 How. tion, which U one of tlie euential attci- 

133; New Jer«ey v. Wilson, 7 Crauch, butes of loverei^tj, has been streDU' 

164 ; Piqoa Branch Bank i-. Knoop, IS ously denied. See DcIk^I d. Ohio Life 

How. 869; Ohio Life Ina. and Tniat Co. Ina. and Truit Co., 1 Ohio St. 563; He- 

r. Debolt, 16 How. 416, 432; Dodge e. chaniia' and Traders' Bank v. Debolt, 1 

Woolaer, 18 How. 331 ; Mechanici' and Ohio St. G91 ; Brewster v. Hough, 10 N. 

Trader*' Bank v. Debolt, 18 How. 381; H. 138; Mott v. Pennsrlvaiila Railroad 

Jpfferaon Branch Bank n. Skellj, 1 Black, Co., 80 Penn. St. 0. And see Thorpe v. 

436 ; Erie R R. Co. c. PennsjlTania, 21 Rutland and B. Railroad Co., 27 Vt 140 ; 

Wall. 492. See alto Hnnsaker v. Wright, ptM, p. '280 and note. In Brick Preiby- 



by Google 



;. v.] POWEBS EIBK0I8ED BX LEGISLATIVE DEPAETMENT. 161 



Ttrritoriat Limitation to State Leffislative AutKoritjf. 

Tbe legislative authority of everjr State mast spend its 
force * within the territorial limits of the State. The leg- [* 128} 
i&latnre of oae State cannot make laws hj which people 
outside the State must govern their actions, except as they may 
have occasion to resort to the remedies which the State provides, 
or to deal with property situated within the State. It can have no 
aathority upon the high seas b^ond State lines, because there is 
the point of contact with other nations, and all internatioQal ques- 
tions belong to the national government.' It canuot provide for 
the punishmeut as crimes of acta committed beyond the State 
IxHindary, because such acts, if offences at all, muat be offences 
against tbe sovereignty within whose limits they have been done.' 

leriMi Church 0. Major, Ac of Sew •. c. 6 Adl Rep. 877; Hamrick n. Roiua, 

Tork, 6 Cow. 638, it wu held that a mn- 17 Ga. 66, where It was held that tbe leg- 

oidpal corporation bad no power, ai a JtlMure could not lund its ■ucceason not 

party, to make a contract which ihould to remoTO a county seat j Baia d. FoDtle- 

eontrcdoremliarraMiti dlKbargeof legi>- roy, 11 Tex. 096; Shaw d, Hacon, 31 

ktlTe dntiei. And aee pmt, p. *30e. In Ga. 280; Regents of UniTenity e. Wil- 

CoMa V. Mayor, ftc. of New Tork, 7 Cow. liamt, 9 O. A J. 366 ; Mott d. FenniylT*. 

C66, it was decided that though a mnnici- nia Railroad Co., SO Penn. St. 9. In 

;■■ corporation grant landi for cemetery Bank of Republic v. HamlltoD, 21 UL 53, 

pnrpoau.and coTCTMnt for tbelrquleten- it wa« held that, in conatroiog a ital- 

JoyiDent, it will not thereby be eitopped ute, it will not be intended that the legii- 

aflerwardi to forbid by by-law the nse of lature deaigoed to abandon ita right aa to 

tbe land for that porpoae, when inch oie taxation. Thii lubjeot b coniideied fnr> 

beoomei or 1« likely to became a nDitanoe. thcr, pmt, pp. •2SO-'284. 
In Stone p. MiniMippi, 101 U. S. B14, tM, 1 1 Bith. Cr. I«w, { 120. 
Chief Jnatice Waite aaya : " The power > State v. Knight, 2 Hajw. 109 ; Peo- 

td go*eming ia a tnW committed by the pie o, Menill, B Park. Cr. R. 690 ; Adama 

people to tbe gorwnment, no part of p. People, 1 N. T. 17S ; Tyler r. People, 

^liefa can be granted away. The people, 8 Mich. S20 ; Horriuey v. People. 11 

ia their torereign capadty, have eiUb- Mich, 327 ; Bromley b. People, 1 Mloh. 

Babed their agencUi fcr the preaerratlon 472; Slate v. Main, 16 Wii. 898; Wat 

ef the poblic health and tbe pnblic mor- aon'* Caae, ») Miw. 693. The Conatita- 

Bb, and the protection of public and prU tion of the United Statei enipowera Cod- 

Taterighta. TheaeaeTeral a«encief can grew to exerdte erclmlre juriadictinn 

piren aoccrding to their diicretion, if over placet purchaeed by content of the 

within tbe acope of their general author- ieglilatnre of the State In which the 

1^, while in power; bat they cannot give aame ihall be, for the erection of fbrta, 

■way POT teil tbe diacretion of tboae that magazinei, arsenal*, dockyarda, and other 

■re to come after them, in reapect to mat- needful bnllding*. When the United 

tef* tbe gOTemment of which, ftnm the Sutee *cquhs« landi without aauh eon. 

Twy nature (rf things, must Tary with sent, the State jnritdictlon Is as complete 

va^ng eircanutancet." See alio, on the at if the lands were owned l>y priTata 

■ame tnltiect. Morgao v. Smith, i Minn, citiaent. But the State, in giving con- 

MM; KiDCMd't Appeal, ea Pewi.St.411; sent, may leterre the right to awTe Statt 



by Google 



162 CONSTITUTIONAL LU1ITATI0M8. [CH. V. 

But if the consequences of an unlawful act committed oatside 
the State have reached their ultimate and injurious result within 
it, it seems that the perpetrator may be puoished as an offender 
against such State.^ 

Upon the principle of comity, however, which ia a part of the 
law of nations, recognized as such by every civilized people, effect 
is given in one State or country to the laws of another in a great 
variety of ways, especially upon questions of contract rights to 
property, and rights of action connected with and dependent upon 
Bucli foreign laws ; without which commercial and buginesa intei^ 
course between the people of different States and countries could 
scarcely esist.^ In the making of contracts, the local law enters 
into and forms a part of the obligation ; and if the contract is 
valid in the State wliere it is made, any other State will give rem- 
edies for its enforcement, unless, according to the standard of such 
latter State, it is bad for immorality, or is opposed in its provisions 
to some accepted principle of public policy, or unless its enforce- 
ment would be prejudicial to the State or its people." So, though 

proceai within the territory. Stat« v. HatniltOD v. St&te, 11 Ohio, 436; Sute d. 
Dimick, 12 N. U. 104 ; CommonneaUh i-. Seaj, 3 Slew. 123 ; a. c. 20 Am. Dec. 66 ; 
Clary, 8 Maas. 72 ; United Sutea v. Cor- State v. Jobtiioii, 2 Oreg. 116 ; Myen v. 
nell. 2 Mrs. 60 ; OpiniOQ ol Judgei, 1 People, 26 III. ITS ; Wation a. Stale, 86 
Mel. 6S0. OCeuces within the pnrchaaed Miu. &gS; State b. Underwood, 49 M«. 
territory can only be punished by the 181; Ferrell v. Commonwealth, 1 DaT. 
United State* : United Stalei n. Amea, 1 153 ; Begins v. Uemietay, 36 Up. Can. K. 
Wood. 4 M. 78 ; Mitchell p. TibbetU, 17 003. Contra, Stale v. Brown, 1 Uay». 
Pick. 298; and reaidenta within such ler- 100; i. c. 1 Am. Dec 54B; People r. 
rltory are not citizena of the State i Com- Gardner, 2 Jofana. 477 ; Simmona v. Com- 
monwealth u. Clary, 8 Maia. 72; Sinks r. moDwealth, S Binn. 617; Simpeon d. 
Roeie, 19 Ohio St. 306. Aa to juriidic- Slate, 4 Humph. 456; Beal v. State, 16 
tion oTer military campa within a State, Ind, 378; Stale e. Le Blanch, El N. J. 82; 
for military purpoaea, see United State* o. and where tbe larceny took place in a 
Tierney, 1 Bond, 671. foreiftn country; Stanley v. State, 24 
1 Tyler v. People, 8 Mich. 820. That Ohio St. 166 ; a. c. 16 Am. Rep. 604 ; 
where a larceny is committed in one Commonwealth d. Uprichard, 3 Gray. 434. 
Stale and the properly carried by the » Thompaon d. Waten, 26 Mieh. 214, 
thief into another, thU may be treated as a 226 ; Bank of Ausaitac. Earle, IB Pet.619. 
continuoualarceny wherever the property ' Runyon v. Coater'a Lessee, 14 Pet. 
i( taken, aee Commonwealth v. Cullina, 122 ; Merrick v. Van SantToord, 84 N. T. 

1 Mata. lia ; Commonwealth v. Andrews, 208 ; Sanl b. Hia Creditors, 6 Mart m. a. 

2 Mags. H ; B. c. 8 Am. Dec. 17 ; Com- 669 ; i. o. 16 Am. Dec. 212 ; Greenwood 
monwealth v. Holder. 9 Grey, 7 ; Com- b, Curtia, 6 Maaa. 268 ; a. c. 4 Am. Dec 
monwealth r. White, 123 Maai. 430 ; State 146. In this last caae, Paraons, Oh. J.. 
f. Ellis, SConn. 186; a. c. 8 Am. Dec. ITS; says the rule that foreign contract* will 
Stale V. Cummings, 33 Conn. 260 ; State be enforced in our own courts is lubject 
c. Bartlett, 11 Vt. 660; State c. Bennett, to two exceptions. One i», when the 



by Google 



CH. v.] POWEKB EXEECI8ED BT LEGIBLATIVB DEPARTMENT. 158 

h corporation created by or under Uie laws of one State has, in 
Btrictness, no extra-territorial life or anthority, and cannot of right 
insist upon extending its operations within the limits of another, 
yet this will be suffered without objection where no local policy 
forbids ; and the corporation may make contracts, and acquire, 
hold, and convey property as it would liave a right to do in the 
State of its origin.' Real estate, however, it can only take, hold, 
and transmit in accordance with the rules prescribed by the law of 
the State in which tlie estate is situate ;^ and the principle of comity 
is never so far extended as to give force and effect to the penal 
laws of one political society within the territory of another, even 
though both belong to one political system.^ 



Oiher Limitationa of Legialative Authortttf. 

Besides the limitations of legislative authority to which we have 
referred, others exist which do not seem to call for special 
remark. Some of these are prescribed by constitutions,* but 

tract bj K judgment iD our conrt<; and eminent itself. United States v. Fox, M 

tbe other ii, when tlie giving of legal ef- U. 8. 816. 

feet to the contract would exhibit to the ' Diokaon o. Dickton, 1 Terg. 110; i.e. 

eitiieiu of the Slate an example perni- 24 Am. Dec 4M; ScoTille v. Cantletd, 14 

rioiu and delegable. The flrit he illiu- Johat. 338 ; e. o. T Am. Dec. 467 ; first 

trates with ■ contract for an importation National Bank d. Price. 88 MJ. 487 ; a. c. 

■irbidden by the local law, and the Mu- 8 Am. Rep. 204 ; Lindrey i>. Hill, 66 Mo. 

and hj an agreement for an inceilnaus 212 ; i. c. 22 Am. Rep. 664. 

nartiage. Another illostra^on under the < The restrictions upon State leglsla- 

Bnt head i*, where enforcing the foreign tive amhoriij are much more ezlenilve 

contract woald deprive a home creditor in some conatitutiona than in others. The 

of a lien. Ingraham ». Geyer, 13 Mass. Consiitution of Missonri of 1885 had the 

146. Compare OliTerD.Steiglili, 27 Ohio following proTision: "Tiie General As- 

St. 856; s. c 22 Am. Rep. 312; Arayo n. icmbly shall not pau special laws divor- 

Carrell, 1 I^. 628 ; h. c. 20 Am. Dec. 286. dng any named parties, or declaring any 

• Silver LaJie Bank u. North, 4 Johns, named person of age, or authorizing any 
Ch. 870 ; Jesanp d. Carnegie, SO N. T. 441 ; named minor to gell, leue, or encumber 
Lnmbud e. Aldrlch, 8 N. H. 81 ; Lothrop bis or her property, or proriding for the 
■. Commercial Bank, 8 Dans, 114; Na- aale of the teal estate of any named 
Itonal Trust Co. d. Murphy, SO N. J. Eq. minor or other peraon laboring under 
408; Christian Union v. Yonnt, 101 U, S. legal disability, by any executor, admin- 
tH. But powers not allowed to it in the iatrator, guardian, trustee, or other pe^ 
Slate where created, it will not be iuf- son, or eatabliahing, locating, altering 
fercd to ezen:iae elsewhere. Starkweather the coarse, or effecting the conatruction 
r. Bible Society, 72 111. 60; a. c. 22 Am. of rosds, or the building or repairing of 
Hep. ISS; Kerr a. Dougherty, 79 N.Y. 827 ; bridges, or eetabliahing, altering, or Tacat- 
TboinpMn o. Waters, 26 Mich. 214. Ing any street, avenue, or alley in any 

* Anile which appUeaeTen totbegor- city or town, or extending the time for th« 



by Google 



154 0OM8TITDTIONAL LIMITATIONS. [CH. T. 

[* 129] 'others Bpring from the very nature of free govern- 
ment. The latter must depend for their euforcement upon 

Maeument or collection of laxei, or other- an equitible one, cannot be aadiled bf 

wiM relieving any aaaaaior or collector any exiiting board. Williaoii f. Bidle- 

ot tBxei Irom the doe perfonnuice of iunii, T Nct. 08. See Darling v. Bogera, 

iiii offlcisl duliei, ar giving eSeut to iii- 7 Kan. S92. An act creating a criminal 

fomml or invalid Willi or deeda, or legal- court for a psnicular t-ount; ii not in cod- 

lling, except ai agunit the Slate, the un- llict with the Conatitutional prohibition 

aatharizcd or invalid acta of an; <^cer, of apecial legiiUtion. Eitel v. State. 33 

or granting to an; individual or compaar Ind. 201. See Malterof Boyle, 9 Wis. 264. 

Uie right to lay down railroad tracka in A Sunday law making It a miademeanor 

the street* of any city or town, or ex- for a baker lo engage in the boainen of 

«nipting any property of any named per- baking on Sunday is a special law and 

(OD or corporation from taxation. The nnconililnlJona] in California. Ex parU 

Oeneral AMcmbiy ihall pan no apecial Weaterfleld, 56 Cal. MO; b.c.80 Am.Bep. 

law for any uaae for whicli provision can 47. Wliere apecial acta conferring cor- 

be made by a general law, but ahall paaa porate powen are proliibiied, the Stats 

general laws providing, ao far aa it may cannot apedally anthoriie a acboot di>- 

deem necessary, for the caaea enumerated trict to issue bonda to erect a scliool-houae. 

in this section, and for all other cues SchoolDlstrict c. InsannceCo, lOSD, S. 

wliere a geoeral law can be made applica- TOT. A constitutional provision that re- 

ble." Art. 4, g 27. We ahould suppose quires all laws of a general natui« to have 

that ao stringent a proviaion would, in uniform operation throughout the State 

■ume of these caaea, lead to the paasuge b complied with in a atatnle applicable 

of general laws of doubtful ntility in or- to all cities of a oertaia claaa having lets 

der to remedy the hardships of particular than one hundred thousand inhabitants, 

cases ; but the Constituliun adopted In thougli in fact there be but one city in 

1ST6 ia still more reatrictlve. Art. 4, J 63. the State of tliat class. Welker d. Potter, 

As to when a general law can be made 18 Ohio St. SG ; Wheeler v. Philadelphia, 

applicable, see Tliomas d. Board of Com- 77 Fenn. St. S88; Kilgore v. Mugee, 86 

misaionera, 5 Ind. 4; State v. Squirea, 26 Penn. St 401. Contra, Divine v, Com- 

lowa, 340; Johnson v. Railroad Co., 28 mUsioners, 84 111. G90, And see Desmond 

HI. SOZ In Slate v. Hitchcock, I Kan. n. Dunn, 66 CaL 24 ; Earie b. Board of 

17B, it WM held that the Constitutional Education, 56 Cal. 48Q ; Van Eiper p. 

provision, that "in all cases wlier« ■ gen- Parsons, 40 N. J, 123; a. c. 29 Am. Bep. 

era! law can ba made applicable, no spe- 210 ; State d. Trenton. 42 N. J. 486 ; SUte 

da! law ahall be enactfd," left a discretion o- Hammer, 42 S. J. 486. And on th« 

with the legislature lo determine the cases general subject see ftirther. Booriand v. 

in which special laws should be pasaed. Hildretli, 28 Cal. 161 ; Brooks p. Hyde, 

See, to the same effect. Gentile v. Slate. 29 S7 Cal. 866 ; McAonich v. Mississippi, &c 

Ind. 409, and Harksv. Trualeea of Pardae ^- Ii-Co.,20 Iowa, 83S; Rice t>. State, 3 

University, 87 Ind. 156 ; State v. Tucker, Kan. 141 ; Jackson v. Shawl, 29 Cal. 267 ; 

46 Ind. 866, overruling Thomas v. Board Genflle v. State, 39 Ind. 409; Slate v. 

of Commieaionert, (upn; Slate p. foimty Parkinaon.GNev. 15; Enaworth n. Atbin, 

Court ofBoone. 60 Mo.SlT; s. c. 11 Am. 46 Mo. 460; People e. Wallace, 70 Dl. 

Rep. 415; Stale «. Robbint, 61 Mo. 82; 680; State v. Camden Common Pleas, 41 

Hall t>. Bray. 61 Mo. 288; St, I^uia o. N. J. 4B6; O'Kane u. Treat, 26 HL 667; 

Sliields, 62 Mo. 247. Compare Hesa v. Commonwealth o. Patton. 88 Penn. St. 

Pegg.TNev 28: DaHlnKr.Ropera.TKan. 268; Cox b. Stale, B Tex. Ct. Ap. 264; 

832; Ex parte Priti. B Iowa, 80, Where State p. Honahan, 69 Mo, 666; State r. 

the legialature ia forbidden to pass special Clark, 23 Minn. 42 ; Speight r. People, 

or local law* regulating county or town- 87 III. 596. Bo where the legislature, for 

ship business, a special act allowing and argent reasons, may suspend tlie nilet 

ordering payment of ■ pardcnlar claim it fcnd allow a bill to be read twice on the 

void,eveathougbti)eclBim,b«lnginereIj tame day, irh«t conatitnlei 4 cam of 



by Google 



OH. T.] POWEB8 EXERCISBD BT LB6I8LATITB DEPAKTMBNT. 155 

legislative wisdom, discretion, and conscience.' The le^slature 
is to make laws for tbe public good, and not for the benefit of 
individuals. It has control of the public moneys, and should 
provide for disbursing 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 l^slature must decide upon its 
own judgment, aud in respect to which it is vested with a large 
discretion which cannot be controlled by the courts, except, per- 
haps, where its action is clearly evasive, and where, under pretence 
of a lawful authority, it has assumed to exercise one that is un- 
lawful. Where the power which is exercised is legislative in its 
character, the courts can enforce only those limitations which the 
constitution imposes ; not those implied restrictions which, restr 
ing in theory only, tbe people have been satisfied to leave to tbe 
judgment, patriotism, and sense of justice of their representa- 
tives.' 

Btgenc^la b qneailon tot the le^il«tit« * Sute v. McCuin, 21 Ohio St 19e^ 
dbcntioD. Hull D. Miller, 4 Neb. 603. S12j Aduna v. Howe, 14 Ham. StDi S. 0. 
I Watkeri>.aticiiiimti.3tOhioSt.H T Am. Dec. 21ft 



by Google 



OONBTITDriONAL LIMITATIONS. [CH. VI. 



[*130] "CHAPTER VI. 

OF THE ENACTMENT 07 LAWS. 

When the supreme power of a country is wielded hj a single 
man, or by a single body of men, any discussion, in the courts, of 
the rules which should be observed in the enactment of laws 
must generally be without practical value, and in fact imperti- 
nent ; for, whenever the unfettered sovereign power of any coun- 
try expresses its will in the promulgation of a rule of law, the 
expreseion must be conclusive, though proper and suitable forms 
may have been wholly omitted in declaring it. It is a necessary 
atti-ibute of sovereignty that the expressed will of the sovereign 
is law ; and while we may question and cross-question the words 
employed, to make certain of the real meaning, and may hesitate 
aud doubt concerning it, yet, when the intent is made out, it 
must govern, and it is idle to talk of forms that should have sur- 
rounded the expression, but do not. But when the legislative 
power of a State is to be exercised by a depaitment composed of 
two branches, or, as in most of the American States, of three 
branches, and these branches have their several duties marked 
out and prescribed by the law to which they owe their origin, and 
which provides for the exercise of their powers in certain modes 
and under certain forms, there are other questions to arise than 
those of the mere intent of the law-makers, and sometimes forms 
become of the last importance. For in such case not only is it 
important that the will of the law-makers be clearly expressed, 
but it is also essential that it be expressed in due form of law ; 
since nothing becomes law simply and solely because men who 
possess the legislative power will that it shall be, unless they ex- 
press 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 



by Google 



CH. TL^ OF THE ENACTMENT OF LAWS. 157 

if, vhen the conslitution was adopted, there were known and set- 
tled rules and usi^es, forming a part of tlie law of the country, 
in reference to which the constitution has evidently been framed, 
and these rules and usages required the obserrance of particular 
forms, the constitution itself must also be understood as requir- 
ing them, because in assuming their existence, and being 
• framed with reference to them, it has in effect adopted [• 131] 
them as a part of itself, as much as if they were expressly 
incorporated in its provisions. Where, for an instance, the legis- 
lative power is to be exercised by two houses, and by settled and 
well-understood parliamentary law, these two houses are to hold 
separate sessions for their deliberations, and the determination of 
the one upon a proposed law is to be submitted to the separate 
determination of the other, the constitution, in providing for two 
houses, has evidently spoken in reference to this settled custom, 
incorporating it as a rule of constitutional interpretation ; so that 
it would require no prohibitory clause to forbid the two houses 
from combining in one, and jointly enacting laws by the vote of a 
majority of all. All those rules which are of the essentials of 
law-making must be observed and followed ; and it is only the 
customary rules of order and routine, such as in every delibera- 
tive body are always understood to be under its coutrol, and sub- 
ject to constant change at its will, that the constitution can be 
anderstood to have left as matters of discretion, to be established, 
modified, or abolished by the bodies for whose government in 
non-essential matters they exist. 



Of the two Bou»e8 of the Legislature.^ 

In the enactment of laws the two bouses of the legislature are 
of equal importance, dignity, and power, and the steps which 

State r. FUtt. 2 8. C. 160; b. o. 16 Am. See D« Lolme, Contt. o( Enfrland, b, 2, 

Bep. 647; People v. Conimiuionen of c. Sj FEderalitt, No. 22; 1 Kent. 208 1 

Hi^wkji, U S. T. 27a ; Mood; b. State, Story on Const. %% 646-570. The early 

48 Ala. 115; a. c. IT Am. Rep. 26 ; Legg experimenliinPennsytTaniaandOeoi^tt, 

p. AmiBpolii, 42 Hd. 208; Walnnt «. bawd on Franklin's views, for which aee 

Wade, 103 D. a 688. hit Works, Vol. V. p. 166, were tlie only 

> The wi«dom of a diriilon of the legU- onet oiade by any ol the original State* 

latiTe depAKawnt has been demonstrated with a single house. The SnI ConstitD- 

bjr the leading writers on conititntlonal lion of Vermont alto prorided for a lingie 

law, M waU M by genenU experience, legiilatire body. 



by Google 



158 CONSTtTDTIOMAL LIMITATIOKB. [CH. TI. 

result ia lavs may originate indifferently in either. This is tbe 
general rule ; but as one body is more numerous than the other, 
nnd more directly represents the people, and in mauy of the 
States is renewed by more frequent elections, the power to origi- 
uate all money bills, or bills for the raising of revenue, is left 
exclustvelj, by the constitutions of some of the States, with this 
body, in accordance witii tbe custom in England, which does not 

permit hills of this character to originate with the House 
[• 182] of Lords.' To these • bills, however, the other house may 

propose alterations, and tliey require the assent of that 
house to their passage, the same as other bills. The time for 
the meeting of the legislature will he 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 prori^ue 
and adjourn them. And if the executive in any case undertake 
to exercise this power to pron^ue and adjourn, on the assumption 
that a disagreement exists between the two houses which warrants 
his interference, and his action is acquiesced in by those bodies, 
who thereupon cease to hold their regular sessions, the legislature 
must be held in law to have adjourned, and no inquiry can be 
entered upon as to the rightfulness of the governor's assumption 
that such a disagreement existed.^ 

I Tliere are proTtiion* In ttie Coniti- 6th and 6th July, 1860, the Common* 
tutioDi of KlsisachusetCs, Delaware, Hin- denj their right even to reject them, 
nemta, Miieiiaippi, New Hampihire, New * Thi* queetion became Important, and 
Jeney, PennEylrania, South Carolina, was paiud upon in People n. Hatch, S8 
Vermont, Indiana, Ore^n, Kentucky, IlL S. Tlie Senate liad paiaed a reaolution 
Louiaiana, Alabama, ATkanaai, Oeorgia, for an adjonrnment of tlie teMion tine die 
YirKinia, Maine, and Colorado, reqnir- on a day named, which waa amended by 
Ing rerenne hilli to origfinate in the (he Hodn hj flxingadiflerent day. Tlie 
mere popular branch of the legiilatnre. Senate lefuied to concur, and the Bonse 
but allowing the Senate the power of then passed a retolntion expresiing a 
amendment uiual In other easel. During desire to recede from Ita action In amend- 
the lecond lession of ihe forty-flnt Coo- Ing the retolution, and requetllng a re- 
gress, the House of RepresentatiTes by Inm of the resolution hy the Senate, 
their ToCe denied the right of Ihe Senate While mattera stood thus, the govemor, 
under the Constitution to originate a bill assuming that such a disagreement es- 
repealing a law imposing taxes ; but the iited as empowered him to interfere, sent 
Senate did not assent to this conclusion. In his proclamation, declaring the legia- 
In England tbe Lords are not allowed to lature a<]}onmed to a day named, and 
amend monej' hills, and by RMdatiotM of whieh waa at the Tery end of tbe oBbAti 



by Google 



CH. VI.3 OF THB ENACTHBlfT 07 LAWS. ISO 

* Tbere are certain matters wbicti each house deter- [* 188] 
miaes for itself, and in respect to which ite decision is 
concluaive. It chooBea its own officers, except where, hy consti- 
tution or statute, other provision is made ; it determines its own 
rules of proceeding ; it decides upon the election and qualiGcation 
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 
sprung from precedents in similar cases, and no other authority is 
at liberty to interfere. 

Each house has also the power to punish members for disor- 

Imn of the mcmben. The me«Mg« (ton hj one of the houMt, thM cert&lB 

created excitement ; it doM not lemi to penoii* had been choMn tnembeTi, could 

hare been at once acquieiced in, and a not be Inqoired inio bj the court*. la 

proteai against the govemor'i authoritj that uue a law irai assailed as void, on 

was entered upon the joamal; but for the ground that a portion of the members 

eleTCD days in one house and twelve in ttie who voted for it, and without whose 

otlier no entriFS were made upon their votes it would oat hare had the reqnieile 

joamals, and it was anqnettianable that majodly, had been given tlieir seats in 

practically tJiey had acqoieMed in the the boDM in defiance of law, and to the 

■ciiun of the governor, and adjoamed. exclusion of others who had a m^oritj 

Attheexpirationof the twelve days, a por- of legal voles. See tlie same principle in 

tion of the members came together a^Un, State r. Jarrett, IT Md. yw. See also 

and it was claimed by them that the Lamb r. Ljnd. 44 Fenn. St. 386 ; Opinion 

message of the governor was without of Justices, £6 S. H. 670. In Kansas a 

aathority, and the two house* must be question having come resemblance was 

considered as having been, in point of disposed of dlflerently. Tlie legislature 

law, in session during the intervening gnve seals to several persons as represent- 

period, and that consequently sny bills atlves of districts not entitled to repre- 

«hlcb bad before been passed by them sentation at all. By the concurrent vote 

•nd sent to the govemar for his approval, of four of these a certain bill was passed, 

•od which he had not returned witliin ten Held, that it was illegnlly pnsBcd, and did 

days, Sundays excepted, had become laws irat become a law. State s. Francis, 26 

ander the con si i I u tion. The Supreme Kan. 724. Tlie legislature cannot trana- 

Coort held tliat, as tiie two houses had fer its power la judge nf the election of 

practically acquiesced in the aGftbn of the its meml>ers lo the courts. State r. Gil- 

goTemor, the seuion had come to an end, man, 20 Kan. 651 ; s. u. 27 Am. Rep. 189. 

aad that the members had no power to The legislative powrr to judge of the 

reeoDvene cm their own motion, as had election of members is not possessed by 

been attempted. The case is a very full municipal bodies: People d. HhII, 60 N. 

and valaaUe one on several poinu per- Y. 117. Except when conferred by Uw : 

taining U> legislative proceedings and au- Mayor b. Morgan, 7 Marl. x. s. 1 ; s. c. 18 

thoriiy. As to the governor's discretion Am. Dec 232 ; Feabody u. School Com- 

in calling an extra season and revoking mitiee, 1 16 Mass. 888 ; Cooley v. Fitzger- 

the call, •eeoafe.p.'Ufi, note. aid, 41 Mich. 2. See Commonwealth b. 

> In Feopl« D. Mabaney, 18 Mich. 481, Leech, 44 Peon. St. 882. 
It was held that the coiTeoIne** of ■ dec^ 



by Google 



160 CONSTITDTIONAL I.IMITATION8. [CH. VI. 

derly behavior, and other contempts of its authority, as well as to 
expel a member for any cause which Beems to the body to render 
it unfit that he continue to occupy one of its seats. This power 
18 generally enumerated in the constitution among those which 
the two hoases may exercise, but it need not be specified in that 
instrument, since it would exist whether expressly conferred or 
not. It is " a necessary and incidental power, to enable the house 
to perform its high functions, and is necessary to the safety of 
the State. It is a power of protection. A member may be phys- 
ically, mentally, or morally wholly unfit ; he may be affected with 
a contagious disease, or insane, or noisy, violent, and disorderly, 
or in the habit of using profane, obscene, and abusive langu^e." 
And, " independently of parliamentary customs and usages, our 
legislative houses have the power to protect themselves by the 
punishment and expulsion of a member ; " and the courts cannot 
inquire into the justice of the decision, or even so much as examine 
the proceedings to see whether or not the proper opportunity for 

defence was furnished.' 
[• 134] • Each house may also punish contempts of its authority 

by other persona, where they are committed in its pres- 
ence, or where they tend directly to embarrass or obstruct its 
legislative proceedings ; and it requires for the purpose no express 
provision of the constitution conferring the authority.^ It is not 
very well settled what are the limits to this power ; and in 
the leading case in this country the speaker's warrant for the 
arrest of the person adjudged guilty of contempt was sustained, 
though it did not show in what the alleged contempt consisted.' 
In the leading English case a libellous publication concemii^ 
the house was treated as a contempt;* and punishment has 
sometimes been inflicted for assaults upon members of the 
house, not committed in or near the place of sitting, and for the 
arrest of members in disregard of their constitutional privilege.^ 

1 Hii* V. Bartlett. 3 Gray, 403, And U. S. 168. And tee OoiMt v. Howard, 10 

•ee Anderson a. Dunn, 6 Wheat. 204. Q. B. 461 ; Stewut v. BUIne, 1 McA^ 

1 Andenon i: Dunn, 6 Wheat. 204; thur, 453. 
Bardett v. Abbott, U Rut, 1 ; Burnham * Burdetl v. Abbott, 14 Eoit, 1. 

V. Morrisiey, 14 Gray, 226; State e. Mat- ' Mr. Potter discuBies anch • caae In 

thewa, 37 N. H. 460. See poU, p. ' 458, hii editinn of DwarrJa on Statntea, c. 18, 

note. and Mr. Robinmn deals with tlie ca*e of 

■ Andenon s. Dnnn, S Wheat 201 ; an arreat for a criminal act, not com- 

quettioned and rejected m to some of its milted in the prescnee of tlie honte, in 

reasoning In Kilbarn v. Thompson, 103 tbe preface to th« tixtli Toluina of fail 



by Google 



OH. TI.3 or THE BKAOTUEirT OF LAWS. 161 

But in America the authority of legislative bodies in this regard 
u much less extenHive than in England, and we are in danger, 
perhaps, of being misled by Kngtish precedents. The parliament, 
before its separation into two bodies, was a high court of judica- 
tare, poaaessed of the general power, incident to such a court, of 
punishing contempts, and after the separation the power re- 
mained with each body, because each was considered to be a 
eoart of judicature and exercised the fanctions of such a court. 
American legislative bodies have not been clothed with the 
judicial function, and they do not therefore posaeas the general 
power to punish for contempt ; but, as incidental to their legisla- 
tive authority, they have the power to punish as contempts those 
acts of members or others whioh tend to obstruct the performance 
of legislative duty, or to defeat, impede, or embarrass the exercise 
of legislative power.* 

When imprisonment is imposed as a punishment, it most ter- 
minate with the final adjournment of the house, and if the prisoner 
be not then discharged by its order, he may be released on ha&eat 
eorput.* 

By common parliamentary law, the members of the legislature 
are privileged from arrest on civU process daring the session of 
that body, and for a reasonable time before and after, to enable 
them to go to and return from the sune. By the constitutions of 
w>me of the States this privil^e has been enlarged, so as to 
exempt the persons of legislators from any service of civil pro- 
cess,' and in others their estates are exempt &om attachment for 
some prescribed period.* For any arrest contrary to the parlia- 

PMcUce. A* 10 the general riRht of drt procMi darinit the iCMion of the !bb- 

P>rU>ment to puniih tor coalempt, we rilatare. or tor Mteen davi next before 

GoMCl D. Ho».rd, 10 Q. B. 411. the oonniencement n,i «fler the termSn*. 

» See the »abject couidered folly and Bon of cMh reiiion." Conit. of Mich. 

leunedlr in Kilbuni v. Thompeon, 103 art. 4, 5 7. A like exemption from ci»n 

U. 8. 188. A honw of CongreM cannot proceu It fonod in the Cotntltutlon« of 

paniib at fin- a contempt the refmal of a Raniai, Nebraalta, AUbama, ArkanBtu, 

witiMH before one of iti committeet to California, Mi«goari, MiirfMippi, Wlscnn- 

testify concerning matters foreign to any tin. Indiana, Oregon, and Colorado. Ex- 

IcgilUtiTe meainre or inquiry, lUd. emption trota arreit ii not vioUted by 

* JeKraon'i Mannal, j 18 ; Prichard'a the sen-ice of citation* or iJeclarationB in 
C«ae, 1 I*r. 168; 18id. 246;T. Raym. dril catea. Gentry e, Griffith, 27 Tex. 
1*^ 481 ; Caie p. Rnrabacher, 16 Mich. 5fl7. 

* "Senator* and repreaeDtatiTeiiball. ' The Conalltution of Rhode Iiland 
in all caM* except treaaon, felony, or proWdei that " the pereon ofeTerv mem- 
btcach of the peace, be pdvileged from ber of the General Aeaemblv nimll ^e 
tnt». They ahall not be anl^ to tcy exempt from arreat, and hl» estate from 

II 

Digit zed by Google 



162 CONBTTTUTIONAL UMITATIONS. [CH. VI. 

mentaiy law or to these provisioiiB, the house of wliich the person 
arrested is a member may give summary relief by ordering his 
discharge, aad if the order is not complied with, by punishing 
the persons concerned in the arrest as for a contempt of its au- 
thority. 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 dis- 
charge the trust confided to him by his constituents ; ^ and if the 
house neglect to interfere, the court from which the process issued 
should set it aside on the facts being represented,' and any court 
or ofBcer having authority to issue writs of habeat eorput 
[" 185] may also "inquire into the case, and release the party 
&om the unlawful 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 dischai^e of its functions,* and whenever it is deemed 
desirable that witnesses should be examined, the power and 
authority to do so is very properiy referred to a committee, with 
any such powers short of final legislative or judicial action as 
may seem necessary or expedient in the particular case. Such a 
committee has no authority to sit during a recess of the house 
which has appointed it, without its permission to that effect ; but 
the house is at liberty to confer such anthority if it see fit.^ A 
refusal to appear or to testify before such committee, or to pro- 



.tUchmem.ip«nyciTil«cHon,dnringthe ot, 7 To.daHe; and in genenilthe party 

.e..inn of th« General A.iembly, and will waive the privilege nnlew to appHe. 

two day. before tha eommencrement and for ducharge by motion or oo Aat^ 

two d«V. after the terminatbn thereof, ^T"-- ^"1*"^ "" ?*?".!'• i^T'^i. '" ' 

and all prooeai »rved contrary hereto Fletcher .. Baiter 2 A.k. 2M; Fo, p. 

.hall be void." Art. i, 8 5. Wood, 1 R*"!?. .« ; Sparry ^-^W'l^ 

i Coffin V. Coffin. * Maw. 27; a. c 1 Wend. 82; W.lmarlh .. Bart, 7 MeL 

8 Am Dm 189 257; Aldrieh b. Aldrich. 8 Met. 102; 

» Court, do not, however. = officio Chaee «. Fiah, IB Ma 132. But where 

notice the privileges of tnemhera ; tbey the privilege ia given on public grounda, 

moat be brought to their attention by or for the benefit of otliera, diicharge 

aome proper motion. Prentia v. Cora- may be obtained on the motion of any 

monweallh, 6 Rnnd. 697 ; b. c. 16 Am. party concerned, or made by the court 

Dec. 782, Rud note. "" 'P"'^- , ,, r. ... 

• Onthi«sohject,Cu»hingonLawand * See Tilljnghaat v. Can, 4. McCori, 
Practice of Parliamentary AMembliei, 162. 
|lSS46-S97,will he coniulted with profit. It 
i» not a treapaas to arreet a person privi- 
leged from arrest, even though the officer also parliamentary caaes, 5 Grey, 374; 9 
may be «wat« of the (act The arreat ia Grey, 350 ; I Chandler, 60. 



by Google 



CH. TI.] OF THE ENAOTHBNT OF I^WS. 163 

dace books or papers, would be a coDtempt of the house ; ^ but 
the committee cannot punish for contempts ; it can only report 
the conduct of the offending party to the house for its action. 
The power of the committee will terminate with the final 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 

> Za n Fmlre/,? Wli. 680 j BoinbHii Ind. 480; O«boni t>. Staler, 6 W. Ta.a6; 

>. MorriMe J, 14 Onij, 2jSl But the piiv- i. c. 13 Am. Bep. 040 ; Suite u. PUtt, 2 S. C. 

nege of ■ witoeas to be exempt from ■ R. a. 160 ; s. o. 16 Am. Rep. 647 ; Moody p. 

eompiUtoryditcIoiiireof hUownmmiml State, 48 AU. 11 5; Hontton, &«. B.E. Co. 

eoadoct ia the ratne when extmined bj a ir. Odom, 5S Tex. 343; Gardner v. The 

lagulatire body or committee u irlien Collector, Wall. 499; South Ottawa 

sworn in court. Emer7'BCBie,107Hau. v. Perklm, 94 U. B. 260. The pre- 

172. Id the Matter ol Kilboura (Haj, inmptlon alwaj* it, when the act, a« 

1876), Chief Jnitice Carter, of the So- signed and enrolled, does not ahow the 

prame Court of the Diitrict of Cotamhia, contrary, that it haa gone tbroagh all ne- 

diacharged on AaAcai eorptiM a perwn com- ceaaary fonnalitie), titate e. McConnetl, 8 

tnitled by the Houae of Repreaentatire* Lea, 341; Bleaaing v. Galveston, 42 Tex. 

for a contempt in refhalng to tettif y ; 641; State e. Franda, 26 Kan. 724; and 

boMing that aa the refnaal waa an indict- aome caaei bold that the enndled itatute 

aUe offence by atatate, a trial therefor ia concluaiTe eridence of Ita due pasaags 

miiat be in the conrta, and not elaewhere. and validity. See Sherman v. Story, 30 

If Uiia ia correct, the neceaaltlea of legia- Cat. 253 ; People v. Bnrt, 43 Cal. 660 ; 

lation will require a repeal of the itatute ; I^onlaiana Lottery Co. v. Bicboox, 2S La. 

for if, in political caaet, the qneation of An. 743; a. c. 8 Am. Rep. 602; Greea v. 

poidahment for failnre to give informa- Weller, 32 Miai. 060; Swan c. Back, 40 

ttonmiiBt be left to a jnry, few convic- Hiaa. 308; Padflc R. R. Co. i>. OoveniM, 

tiona are to be expected, and no wholeaome 23 Mo. S£3 ; State v. Swift, 10 Nev. 176 ; 

fcar of the conaeqaenoea of a refnaaL Pangbom a. Toang, 82 N. J. 30; Erana 

Tbe legality of the aame arreat waa con- v. Brown, SO Ind. 614 ; Dnncombe v. Prin- 

rideredafterwaida by the federal Supreme die, 12 Iowa, 1 ; othera hold that the pn'mj 

CodH and waa not atiataioed, the court /odie case may be overthrown by the jonr- 

boldiDg that the houae exceeded ita an- nalaiSpanglercJacoby, 14111297; Houa- 

tbority in the attempted inveatigation. ton, Ac. R. R. Co b. Odum, 63 Tex. 348; 

KUboiiRiD.Thompson,103n. S. 168. On Bnrro. Roia,lS Arlc.260; Jones D.Hnlch- 

queatiaii* of eonSict between the legiaU- inaon,43Ala.721; Ben?!). Baltimore, Ac. 

ton and the conrta in mattera of coo- R.R.Co.,41Md.446;B.o.20Am.Rep.6e; 

tunpt, the great caae of Stockdale a. Oreen v. Weller, 32 Miaa. 6S0. And aee 

Hanaaid, 9 Ad. & El. 1, a. o. 8 Per. t Dar. Opinioni of Juaticea, 62 N. E. 622 ; Ben- 

S30, i« of the highest intereat See tfay, aoldt a. Petersburg, 63 111. 167 ; Larrlion 

Coaiat. Hial. c 7. n. Peoria, &c. R. R. Co., 77 HI. 11 ; People 

• Spangler b. Jacoby, 14 III, 207 ; Tnr- tr. CommiagioDeri of Highways, 64 H. T. 

ley g. L(^an Co., 17 111. IGl ; Jonea b. 376; Engliah n. Oliver, 28 Ark. 317; In rt 

HotcbiiiaoD, 43 Ala. 721; State b. Mofflt, Wellman, 20 Vt. 66S; Oabome v. Staley, 

5 Ohio. 868; Miller o. SUte, 8 Ohio St. 6ff. Va.86; Moody o. State, 48 Ala. 116; 

47S; Fordyce c. Godman, 20 Ohio St. s. o. 17 Am. Rep. 28; State e. Flatt, 2 

1 : People B. Snperviaora of Chenango, 8 S. C. 160 ; s. c. 16 Am. Rep. M7 ; Worthen 

n. r. 817; People r. Hahaney, 13 Mich. r. Badget, SB Ark. 406; South wark Bank 

ttl ; Soathwark Bank e. Commonwealth, k. Commonwealth, 26 Fenn. St 446 ; For- 

1 Pmt. Bl 446; HeCallocb v. Stale, U dyce •>. Godman, SOOhlo St. 1 ; People tr. 



by Google 



164 oosrsTrnmoNAi. luoiations. [ch. tl 

Dot receive the requisite majority, or Uist in respect to it the leg- 
ialature did oot follow uiy requirement of the conatltiition, or 
that in any other respect the act was not conBtitutionally adopted, 
the coarte may act apon this evidence, and adjudge the statute 
TOtd.' But whenever it is acting in the apparent performance 
of l^al functions, ever; reasonable presumption is to be made 
in favor of the action of a legislative bod; ; it will not be pre- 
sumed in any case, &om the mere silence of the journals, that 

either house has exceeded its authority, or disregarded a 
[* 186] * constitutional requirement in the pass^e of legislative 

acts, unless where the constitutioQ 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 east its protection around legislative ses- 
sions, and to shield them agunst 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 fects, arguments, and appeals to reason as 
are recognized as proper and legitimate with all public bodies. 
While counsel may be properly employed to present the reasons 
in favor of any public measure to the body authorized to pass 
upon it, or to any of its committees empowered to collect facta 
and hear arguments, and parties interested may lawfully contract 
to pay for this service," yet to secretly approach the members of 

Starne, Sfi HI. 131 ; Snperriion a. Keeoao, tbe act od flk that mch a vote wai had. 

a Hum. S21 ; People d. Mahaney, 13 Uich. P«o{il« v. ComaiiMlonen of B^hwayi, 64 

481 ; Berry d. Doane Point K. R. Co., 41 H. r. 276. It wenii that, in Illinois, if 

Md. 44d. Coaipara Broduas r. Groom, one claim* that a anppoaed lair was neTer 

64 N. C. 244] Anoapolis b. Hanrood, S9 pMaed, and reliei upon tiie ncardi to 

Hi. 471. It lia« been held that wbera show it, he moat prore them. Illinoit 

the conatiiuiou rcqairet previoni notice Cent R. R. Co v. Wren, 48 111. TT; Grab 

of an application for a private act, the n. Cnahman, 4fi III 110; Bedard v. Ball, 

court! cannot go behind the act to Inqnin 44 III. 91. Tbe conrt will not act upon 

whether the notice was given. Brodnax tbe admiiaion of parties that an act iraa 

V. Groom, 64 N. C. 214. See Peot^ v. not paiied in the constitutional maoRcr. 

Hurlbut, 24 Mich. 44 ; Daj n. SletaoD, 8 Happd n. Brethsoer, 70 ni. 166. 
Me. 366; U'CUuoh d. Stnrgia, 73 He. The Conetltnlion uf Alabama, art. 4. 

288. S ^r regnirea tbe presiding officer of each 

1 See raicia cited in preceding note; bonte, In the pretence of tlie house, to 

also Preecott v. Tnulees. tie., 19 lU. 324. aign them " after the Uttea have been pnb- 

" Miller D. 8tate,80hio Sl 475; Mo- lldy read immediatelj before signing, and 

Culloch V. State, II Ind. 424; Snperri- tbe fbcl of signing shall be entered on the 

aors B. People, 26 111. 181. But where a Journal." This seems a very imperatiTe 

atatoCe can onlj lie enacted by a certain regalrement 

majority, e. 7. two-thirds, it most afBrma- ■ See Wildey n. Collier, 7 Hd. 278 ; 

tivel/ appear b; the printed atatvie or Bryan v. Bejnoldt, 6 Wis. 300 ; Brown *. 



by Google 



CH. V1.3 OF tb:b enactment op laws. 165 

HQch a body with a view to influence their action at a time and 
in & manner that do not allow the presentation of opposite views, 
is improper and nnfair to the opposing interest ; and a contract 
to pay for this in-egular and improper service would not he en- 
foiced by the law.' 

BrowD, 84 Barb. 688; Roudl r. Barton, of h!« political or per«on>l iofltiance, it 

U Barb. 689. aggr&TBtes the wrong. If his bnilneu ii 

I Thii whole inbject was very full7 to unite varioni inCereats hy meana of 

coniidered in tlic cue of Froat b. Inhab- pnyecta that are called 'log-rolling,' It i* 

itantaof Belmont, 6 Allen, 152, which waa ttillworae. The piactlce of procuring mem- 

• bill Bled to rettrain the payment by the bera of the legialatare to act nnder the In- 

town of deraandi to die amount of nearlj flaence of what they bare eaten and 

9!),000, which the town had voted to paf drank at hoDsea of entertainment, tendi to 

sa ezpenwa in obtaining their act of in- render thoae of them who yield to andi 

corpOTSiion. By the court. Chapman, 3. : influencei wholly nnflt to act In luoh 

"It ii to be regretted that an^r peraona casea. They are diiqualified from acting 

•hould hare attempted to procure an act fairly t^warda inlereated partie* or tow- 

of legislation in ibii Commonwealth, by arda the public. The tendency and oljject 

■och meana aa lome of tlieae Itema indi- of theae Influences are to obtain by oor. 

cale- By the re^iular course of legiala- ruption what it ia auppoaed cannot be ol>- 

tion, organa are provided through which tained AUriy. 

any parties may fairly and openly ap- " It ia a well-egtabliihed principle, that 
proach the l^iilature, and be heard with all cootracta which are opposed to public 
proofs and argameats respecting any leg- policy, and to open, upright, and UAt 
Ulatire acta which they may be interested dealing, are illegal and Toid. The prin- 
in, whether public or pritnte. These or- ciple was fully discussed in Fnller e. 
ganaaretheTariooacommltteesappoinled Dame, IB Pick. 472. In aeveral other 
to consider and report upon the matters States it has been applied to oases quite 
to be acted upon by the whole body, analogoni to the present case. 
When priTate intereals are to be affected, " In Fingrey v. Washburn, 1 Aik. 2M, 
iKiticeiagi*enot thehearingsbeforethese it was held In Vermont that an agree- 
comiaitteea; andthusopportnoityisgiren ment, oa the part of a corporation, to 
to adTcree pardea to meet fkce to face and grant to indlTidtials certain prlrilegea in 
obtain a fair and open hearing. And consideration that they would withdraw 
tfaongtithesecomnutleesproperlydispaise their opposition to the passage of a legit- 
with many of the rules which regulate lative act touching the interests of the 
heariiigaberorejadicialtrihnnali,yetcom- corporation. Is againat sound policy, pre- 
■•on fitimess requires [hat neither party Judicial to correct and jnit legislation, 
abaU ba permitted to have secret consul- and void. In Gulick r. Ward, 6 Halst 87, 
latiaaB, and ezereise secret inBuencea that it was decided in New Jersey that a con- 
are kept from the knowledge of the other tract which contravenes an act of Con- 
party. The buwnes* of ' lobby mem- gresa, and tends to defland the tTnited 
bera ' U not to go fairly and openly be- States, ts void. A. had agreed to give B. 
tan the committeea, and present state- $100, on condttlon that B. would forbear 
■oenta, proofa, and argumenta that the to propose or offer himself to the Post- 
other side has an opportunity to meet and master-General to carry the mail on ■ 
refute if they are wrong, but to go se- certain mall route, and it was held that 
a«tly to the members and ply tliem with the contract was against public policy 
atatemeota and arguments that the other and void. The general principle as to 
dde cannot openly meet, however erro- contracts contravening public policy was 
DeoD* tbey may be, and to bring illegiti- discussed In that case at much length. In 
nate inflaences to bear upon them. If Wood v. McCann, 6 Dana, 800. the de- 
thc'bibby member' is selected because fendant had employed the ^ntiH to 



by Google 



OONSTITUnONAL LIlflTATIONS. [CB. TL 



[• 187] • 1^ Introduction and Pottage of BUli. 

Any member may introduce a bill in the honae to Thich he 
belongs, in accordance with ita rules ; and this he may do 

Miiit him in obt&iaing k legiilatire act In bold that one wbo hu ft cUlm tgaiiut the 
Kentucky legalizing hit divorce from a State may not employ competent penoni 
fonner wife, and hli marriage with hii to aid him in properly prMcnting tnch 
preMDt wite. The court say : ' A lawyer claim to the lepilature, and In supporUng 
tD»j be entitled (o compentatloQ for writ- it nith the neceiuuy proofi and argu- 
iug a peUtion, or erea for making a pnb- meota. Hr. Justice Band, who delirered 
Uc argument before the lepilature or a the opinion of the court, very Justly di>- 
committee thereof; but the law ihonld tinguithe* between serricei of the nature 
not help him or any other perton t« a of thoM rendered in that eaae, and the 
recompenie for eierdilng any personal procuring and preparing the neceasary 
influence, in any way, in any act of legia- document* In lupport of a claim, or act- 
lation. It ii certainly important to juit Ing aa couniel before the legiilalnre or 
and wbe legialation, and tiierefore to the lome committee appointed by that body, 
most eiMDtial intereiti of the public, that Penonj may, no doubt, be employed to 
the legislature ihoutd be perfectly free conduct an application to the legiilanue, 
from any extraneoui influence which may aa well ai to conduct a init at law ; and 
rather corrupt or deceive the ineinbert, or may contract for and receive pay for their 
any of them.' eerrices in preparing documenta, collect- 
" In Clipplnger d. Eepbaugh, 5 Watts ing evidence, making itatementa of facta, 
& S. 316, it wBi decided in Penniylvania or preparing and making oral or written 
that a contract to procure or endeavor to argumenta, provided all these are uied or 
procure the passage of an act of the legis- designed to be used before the legialatnro 
lature by tising personal influence with or some committee thereof aa a body; 
the members, or by any sinister means, but they cannot, with propriety, be em- 
waa void, as being Inconsistent with pub- ployed to exert their personal infloeDce 
lie policy and the integrity of our politicai with individual members, or to labor in 
institutiona. And aa agreement for a any tOno privately with such member* 
contingent fee to be paid on the passage out of the legislative lialla. Whatever ia 
at a legislative act was held to be illegal laid before the leglslatare in writing, or 
and void, because It would be a strong spoken openly or publicly In its preeence 
incentive to the exercise of personal and or that of a committee, If false in fact, 
■Inisler Influences to e&ect the object. may be disproved, or If wrong in argu. 
"The subject has been twice adjudi- ment may be refuted j but that which ia 
cated upon in New York. In Harris v. whispered into the private ear of indivld- 
Boot, 10 Barb. 489, the Supreme Court ual members is frequently beyond the 
held tliat one could not recover for ser- reach of correction. The pmnt of objec- 
vices performed in going to see individual tion in this class of cases, then, is, the 
members of the house, to get them to aid penonal and private natoi* of the ser- 
in voting for a private claim, (he services vices to be rendered.' 
not being performed before the house as a "In Fuller d. Dame. cited above, Sbno, 
body nor before ita authorized comml^ Ch.J.,recognite8 thewell-eatablishedright 
teea. In Bedgwick b. Stanton. 4 Keman, to contract and pay for professional ser- 
2B9, the Court of Appeals held the same vices when the promisee Is to act aa at- 
doctrine, and stated its proper limits. Stl- tomey and counsel, but remarka that 
den, J., makes the following comments on ' the fact appearing that persona do so act 
the ease of Harris v. Roof: 'Now, the prevents any iryurious effects trota anch 
court did not mean by this decision to proceeding. Such counsel la conaidered 



b, Google 



OH. TL.'l or THB BNACTUEin OF LAWS. 167 

at any * 'time -when the house is in sessioD, iinlotia tbe [* 188] 
eonstitation, the law, or the rules of the house forbid. 
Tbe Coustitution of Michigan * provides that no new hill [* 189] 
shall be introduced into either house of the legislature 
after the first fifty days of the session shall have expired ; ^ and 
tbe Constitution of Maryland provides that no bill shall originate 
in either house within the last ten days of tbe session.* The pur- 
pose of these daoses is to prevent hasty and improvident legisla- 
tion, and to compel, so far as any previous law can accomplish 
that result, tbe carefid examination of proposed laws, or at least 
tiie affording of opportunity for that purpose ; which will not 
always be doue when bills may he introduced up to the very hour 
of adjournment, and, with the concurrence of the proper majority, 
put immediately upon their p 



M itanding in tha plkca of bis principd, v. We«t Roxboir, 112 Hmi. 1 ; a. o. 17 
and bit argamenU and rapretenlatioDi Am. Hep. 62. That contracla tor lobbj 
are weighed and coo*idered accordinglj.' ierricc* in procuring or prerentinfi leg^ 
He alio admit! tbe rigbt of disintMetled latioa ai« void, lee Dabei v. HcBratnef, 
penoH to TolnntMr adrice ; ai when a 8 Dill. S8S ; Triit i;. Child, 21 Wall. 441 ; 
penon it abont to make a will, one mar McEee d. Cbenej, (& How. (N. T.) 144; 
npreaent to him tbe proprieiy and expe- Weed b. Black, 2 MacArihnr, 268. Or tin 
dienejol nuking a beqneet toaparlicu- influence in procnring contract*. Tool 
lar penon ; and n ma; one Totnoteer ad- Co. v. Norrig, 2 Wall. 46. And anj con- 
rice to another to mairj another person ; tract the pnrpoie of which ii to laflneDoa 
bat a promiM to paj for inch ferrice ii a public officer or bod; to fiiTOr penoni 
Toid. in the performance of hii public du^ 

"Applying tbe principle* *tated in ii roid, on gmund* of public policy. Or- 

tbeee caae* to the bill* whicb the town dineal n. Barrj, 24 Mi«t. 9. The *ame 

voted to pay, it ii manifeit tbal aome of general principle will be found applied In 

tite mmwy wai expended for object! that the fallowing caaei : Swayze v. HqU, 8 N. 

are contrary to public policy, and of a J. 54; a. c. 14 Am. Dec. 899; Woodn. 

■nat reprehenaible character, and which McCuin, 6 Dana, 366 ; Hatzfield i>. Oulden, 

contd not, therefore, fhrm a legal conttd- T Watu, 162 ; Oil d. Davli, 12 La. Ann. 

VBtioD for a contract." 219; Power* „. Skinner, 34 Vt. 274; 

See, further, a fall diicauion of the Frankfort v. Wiuterport, 54 Me. 250; 

auDC subject, and reaching the aame con- Boae r. Trout, 21 Barb. 861 ; Devlin v. 

doaion, by Mr. Joitice Grier,\n Marshall Brady,. 82 Barb. 618; Oicanyan s. Arm* 

V. B^timore & Ohio R. It. Co., 16 How. 314. Company, lOS U. 8. 261 ; Meguire d. Cot- 

A >ale of a town ofHce, tlioagh by tbe win, S UacArthur, 81. See further, po$t, 

town itsdf, camiot be tbe conaideration *616, note. 

for a contract. Meredith r. Ladd, 2 N. H. ' Art. 4, j 28. 

U7. See Carleton s. Whilcher, 5 N. H. ' Art. 8, § 26. In Arkania* there ia a 

196; Eddy v. Capron, 4 R. L 804. A *lmilar proviaion, limiting the time to 

town cannot incur expeoM* in oppoaing ttiree day*. Art. 6, g 24. 

before a leglaUtiTc eomiultEee a dirlaion * A practice haa sprung up of evading 

of tbe territorial limits : Weatbrook v. these conititutional proTJaiona by inlro- 

Dccring, 68 Me. 231 ; or to pay the ex- ducing a new bill after the time ha* ex- 

penses at a committee to procure the an- pired when it may constitutionally be 

naxalkat of tfao town to another ; Mlnot done, a* an amendment to some pending 



by Google 



168 OOMBnTDTKMIAI. UHITATlONa. [CH. T1. 

For the same reason it is required by the constitntioiis of seTergl 
of the States, ihat no bill shall have ihe force of law until on three 
several days it be read in each house, and free discussion allowed 
thereon ; unless, in case of urgency, four-fifths or some other 
specified majority of the house shall deem it expedient to dispense 
with this rule. The jounials which each house keeps of its pro- 
ceedings ought to show whether this rule is complied with or not; 
but in case they do not, the passage in the manner provided by 
the constitutioD must be presumed, in accordance with the gen- 
eral rule which presumes the proper discbarge of official 
[* 110] duty.^ * In the reading of a bill, it seems to be sufficient 

bill, the whole of which, except tlie enact- of the conatitution hu been utufled. 
tag cUiue, i« itruek oat to make wa; for And tee R<nui v, Lyoch, 68 DL 180. Cat- 
it Thiu, the member who thinlu he ma; tra. Slate v. McConnell, 3 Lea, MI ; 81e«- 
poadblj have occaaion for the iimtiduu- (ing ii. GalveitOD, 42 Tex. 641. The 
tioD of a new bill after the coDilitutioDal clauie in the ConidtutioD of Ohio It: 
period hai expired, takei care to intro- "BTeiy bill thall befQllj and dlatJnetlT 
dvce aham billi in due aeaioD which be read on three different dayi, unleai, ia 
on uaeai Itoclu to graA upon, and wliich uaaeof nrgencj, three foonbg of IhehMlM 
he naea irreipecliTe of their oharacter or in whichltthaUbepeDdiogihalldiapeaiA 
ooDtent*. The iham bill is perhap* a bill with thb rule i " and In Hiller v. State, 8 
to incorporate the citj' of Blem. One of Ohio St. 4T6, and Pim r. Hichol»)n, 
the member'a conitiiuenlj i^plle* to him Ohio St. 170, thle provulon wai held to 
for legiilatire permiuion to conitrnct a t>e merely diFector;. The diititKitum 
dam BcrotB the Wild Cat River. Forth- with which uiy bill niuit be read cannot 
with, b7 amtudmrnt, the blU entitled a bill potaibly be deOned hj any taw ; and it 
fo incorporate the ci^ of Stam hai all mnit alwaji, from the nccetaity of tiie 
after the enacting clanae itricken ont, and caie, reit with the booie to determine 
it U made Co prorlde, a« Iti lole object, flnalty whether in this particular the con- 
that John Doe majconitnict a dam acroaa Blitution ha* been complied with or not; 
the Wild Cat. With tbii title and in thit but the rale mpectlng three leTeral read- 
form it It pM*ed ; but the home then tngi ondiflerent da]'iiiipeciflc,andcapa- 
conilderatelj amendt the title lo corre- ble of being predaely complied with, and 
•pond with the porpote of the bill, and we do not lee bow, eren under the thIm 
the law 1) paawd, and the conititution at applied to ilatutei, it can be regarded ma 
the aame time saved 1 Thli trick i« ao director/ merely, provided it has a pnr- 
traniparent, and so clearly in violalion of pose beyond the mere regular and orderly 
tlte constitution, and the evidence at the trannction of buslneas. That it hai «nch 
same time Is so fully spread upon the a purpose, that it is designed to prevent 
record, that it It a matter of turprise lo hasty and Improvident legisUtlon, and U 
find it to often r«>wled to. At to what therefore not a mere rule o* order, but 
is admlsiibU at an amendment, tee At- one of protection to the publio interesta 
tomey-Oeneral e. Barton (Hlch.), 11 N. and to the citiaens at large, is very clear; 
W. Rep. 867. and independent of the qnettion whether 
1 Supervisors of Schayler Co. b. Peo- definite oonadtntional principles can be 
pie, 36 Hi. 181; Miller a. Sute, S Ohio dispensed with in anyeate on the gronnd 
St. 476. In People o. Statue, 86 RL 121, of their being merely directory, we can- 
it it laid the courts should not enforce a not tee how tliis can be treated at any- 
legislative act unless there Is record evi- thing bat mandatory. See People b. 
dence, from the jonmals of the two Campbell, Slit. 466; HcCnlioch r. Sute, 
houses, that every material requirement 11 Ind. 424; WeiUi>.K«nfleld,64Cal.lll. 



by Google 



CH. VI.] OF IHS EKAOTUBNT OF LAWS. 169 

to read the written document that is adopted by the two 
houses ; even though Homethiiig else becomes law in consequence 
of its poeeage, and by reaaon of being referred to in it.' Thus, & 
Btntute which incorporated a military compajiy by reference to 
its constitution and by-laws, was held valid notwithBtanding the 
constitutJon and by-laws, which would acquire the force of law 
by it« passage, were not read in the two houses as a part of it.* 
Bat there cannot be many cases, we should suppose, to which 
tiiis ruling would be applicable- 
It is also provided in ^e constitutions of some of the States that, 
on the final passage of every bill, the yeas and nays shall be entered 
on the joDrnal. Sach a provision is designed to serve an impor- 
tant 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 
reqtuaite number of members vote in the affirmative. The office 
of the journal is to record the proceedings of the house, and 
autJienticate and preserve the same. It must appear on the face 
(rf the journal that the bill passed by a constitutional majori^. 
These directions are all clearly imperative. They are 
* expressly enjoined by the fundamental law as matters [• 141] 
of substance, and cannot be dispensed with by the legis- 
Uture." * 

For the vote required in the passage of any particular law 
the reader is referred to the constitutiom of his State. A simple 
majority of a quorum is sufficient, unless the constitution estab- 
lishes some other rule ; and where, by the constitution, a two- 
thirds or three-fourths vote is made essential to the passage of any 

> D«w >. CnnniiiBhuti, 28 Ala. 468. put go their pasaage logetber, the 7eai 

* Bibb County Loan Atiaciation v. and naji being once called for them all, 
Kicharda. SI Oa. 6B2. Aod aeo Fulford thongh the joonutl li made to itnle 
K Fir* Department, 81 Mich. 158. falnl; a aeparate ToCe on each. We 

* Spangler r. Jmcabj, li HI. 397 i Bu- need hardly taj Uiat thii i> a manileM 
perviaon of Schoyler Co. u. People, 26 vioLation of tbe conititntiDn, which re- 
lU. 18S; Byan c. Lfnch, 86 HI. 160; qnirei aeparate action in STery caie, and 
Steckcrt v. Eait Saginaw, 22 Mich. 104 ; that, when raurted to, It ii tunall]' for the 
People r. Commiaiionen of Bigbwafc, M purpose of avoiding another provlBion of 
M. T. 276. For a peculiar case see Diri- the conititntiDD which leeka to preclude 
■ioQ cf Howard Conntj, 15 Kan. 1D4. "log>n)lling" legiilatlon, bj forbidding 
Tbere have been caaea, as we liappen to the Ineoipontion of distlnat nieaanrei Id 
bow, in which leTeral billi haTc been one and the aame ttatute. 



by Google 



170 ooKSTrruTiONAi. LuciTATioNa. [oh. vl 

particular class of bills, two-thirds or three-fourths of a quorum 
will be understood, unless the terms employed clearly indicate 
that this proportion of all the members, or of all those elected, is 
intended.' 

The lUie of a StatiOe. 

The title of an act was formerly considered no part of it ; and 
although it might be looked to as a guide to the intent of the law- 
makers when the body of the statute appeared to be in any respect 
ambiguous or donbtful,^ yet it could not enlarge or restrain the 
provisions of the act itself,' and the latter might therefore bo 
good when that and the title were in conflict. The reason for 
this was that anciently titles were not prefixed at all, and when 
afterwards they came to be introduced, they were usually pre- 
pared 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 httle insight into the legislative inten- 
tion. Titles to legislative acts, however, have recently, in some 
States, come to possess very great importance, by reason of con- 
stitutional provisions, which not only require that they shall cor- 
rectly indicate the pui-pose of the law, but which absolutely make 
the title to control, and exclude everything from effect and oper- 
ation as law which is incorporated in the body of the act, but is 
not within the purpose indicated by the title. These provisions 
are given in the note, and it will readily be perceived that they 
make a very great change in the law.* 

' SonChwortb e. Palmjra & JackioD- aceoiiDt to be excluded in the count 
burg R. B. Co., 2 Mich. 287 ; Stfte v. 8>n«rlee v. Stn Franciico, 22 Cftl. 314. 
HcBdde, 4 Ma. 803; b. c. 29 Am. Dec. > Unltei] Butei ». Patmer, S Wheat. 
636. By moat of the conititulion* either filO; Burgett o. But^II, 1 Ohio, 460; 
■11 the laws, or lam on aome particalar Mundt v. Sheboygan, &c. R. R. Co., 31 
■ubjects, are required to he adopted by a Wis. 461 ; Eaatman b. McAlptn, 1 Oa. 
majority tdIb or lome other proportion 1G7 ; Cohen n. Barrett, 6 Call. 196 ; Qtr- 
of " sU the member! elected," or of " the rigas v. Board of Com'n. SS Ind. 66 ; Mat- 
whole repreaen Cation." These and limilar ter of Hiddietown, 62 N. T. 196. See 
phra«ea require all the memtKn to be Uwarria on Statutea, 602. 
taken into acconnt whether preaent or ■ Hadden c. The Collector, 6 WalL 
□oL Where a majority of all the mem- 107. Compare United State* d. Union 
bera elttUd la required In tlie pasaage of a Fadfle R. R. Co., 91 D. S. Rep. 72. 
law, an ineligible person li not on tbat * The ConatitntlonB of MinneMta, Kan- 



by Google 



OH. yi.] OF THE ENAOTHBNT OF LAWS. 171 

* Id oon^deiing these proTisiona it is impoitant to [* 142j 
regard, — 

1. Z^ evilt designed to be remedied. Tlie Constitution of Nev 
Jeraey refers to thege as " the improper influences which may 
result from intermixing in one and the same act suoh things as 
have DO 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 cine to its contents. Im- 
portant general principles were found placed in acts private or 
local in their operation ; provisions conceruing 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 od maDy important subjects the statute law had become 
almost uDintelligible, as they whose duty it has been to examine 
or act under it can well testify. To prevent any further acou- 
mulatioD to this chaotic mass was the object of the constitutional 

Ma, Muyland, Kentnckj, Nebraska, and an act which ihall not be expreased In 

Ohio proTide that " no lav shall embrace the title, iucb act ahall be void onl;' aa to 

more tban me inbject, irhich shall be lO nucli thcreot as iliall not be expreated 

eiprawd in It* title." TboM of Hichl- in the title." The Conatitulion of Nevada 

gan, New Jenef, Louiiiana, and Texas provides that "eTerj law enacted by the 

•re aimilar, inbttitutingf the word ofrr'aet legiilature ihall embrace but one labjec^ 

fbc BibjeeL The Coaitltntioiii of South and matten properly connected therewith, 

Camlina, Alabama, Tenneeiee, Arkansas, which anbject sliall be briefly eiprewed 

wA California contain timilar provisions, in the title." The Constilations of New 

Hw CoQstitatimi of New Jersey provide* York and Wisconain provide that "do 

IImU," to avoid improper Infiaences which private or toca! bill which may be passed 

may result from intermixing in one and by the legislatare shall embrace more 

tbe same act sach things aa baVe uc than one aubject, and that shall be ei- 

propw rebttioD to each other, ever? law preased in the title." Tbe Constitution 

•hall embrace but ooe object, and that of Liinois la similar to that of Ohio, with 

•ball be expreased in the title.'' The Con- the addition of the saving clause found in 

•titntion of Mlssonri contains the follow- the Constitution of Indiana. The pro- 

ioK inovision : "No bill (except general vision in tlie Constitntioii of Colorado la 

qipropriation bills, which maj embrace similar to that of Mtssonri. In Pennsyl. 

tbe variona subjects and accounts for aod vania the provision is that " no bill except 

on Boconnt of which moneys are appro- general appropriation bills shall be passed 

prialed, and except bills passed under the containing more than one subject, which 

third subdivision of section 44 of this arti- ahail be clearly expressed In its title." 

cle) ahall contain more than one subject. Const, of IS&S. Whether the word oAj'n* 

which sliall be clearly expressed in ita is to have any different construction from 

title." The exception secondly referred the word mAjecf, as used in these provi- 

lo i* to bills for Fi'ee public-school pur- sions, is a question which may some tine 

poaes. The Constitutions of Indiana, Ore- require discussion ; but a* it is evidently 

gon, and low* provide that " every act employed for precisely the tame purpose, 

shall embrace but one subject, and mat- it would seem that it ought not to have. 

tei« property connected therewith, which Compare Hingle v. State, 24 Ind. 28, and 

•abject ahall b« expressed in the title. People v. I«wrenoe, S6 Barb. 177. 
Bui if an; sabjeci shall be embnced fa) 



by Google 



172 CONSTITUTIONAL LOnTATIONa. [OH. TI. 

prorisioB aoder coosideratioD." ^ The Supreme Court of Michigan 
say: " The history and purpose of this conBtitutiooal pro- 
['1483 'iBion are too well understood to require any • elucidation 
at oar ha^ds. The practioe of bringing together into one 
bill Bubjecta diverse in their nature and having no necessary con- 
nection, with a view to combine in their favor the advocates of all, 
and thus secure the passage of several measures, no one of which 
could succeed upou its own merits, was one both corruptive of the 
legislator and dangeroos to the State. It was scarcely more so, 
however, than another practice, also intended to be remedied by 
this provision, by which, through dexterous manf^ement, clauses 
were inserted in bills of which the titles gave no intimation, and 
their paes^e secured through legislative bodies whose members 
were not generally aware of their intention and effect. There was 
no design by this clause to embarrass legislation by making laws 
unnecessarily restrictive in their scope and operation, and thna 
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 re- 
quire that in every case the proposed measure should stand upon 
ita own merits, and that the legislatura 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 bo 
" that neither the members of the legislature nor the people should 
be misled by the title."' The Supreme Court of Iowa say : *' Tho 
intent of this proviuon of tlie constitution was, to prevent the 
union, in the same act, of incongruous matters, and of objects 

* Walker n. Caldwell, 4 La. Ann. 208. of G«iiend Junes Jacluoa, and that ita 

See Fletclier d. Oliver, 25 Ark. 208; Al- neoeuity wai ■aggeited bj the Yazoo act. 

brecht D. State, 8 Tex. Ct. Ap. 210 ; a. a That memorable meMore of the 17th of 

84 Am. Rep. 737. Jannar}'. 1796, aa it well knowo, »aa 

' People E. Mabaney, IS Hiub. 481. amugeled throagh the legiilature under 

And see Board of Snperrlion n. Heenan, the caption of an act "for the payment 

2 Mich. 886 1 Davii v. Bank of Fulton, 81 of the late Stale troop*," and a deelara- 

Ga. 69; Si. Louii c. Tiefet, 42 Mo. ^76; Uon in it« title of the right of the Sute 

State D. Loaatee, 9 Bazt, 6S4. The Con- to the unappropriated tetrilorj thereof 

■tilution of Georgia provided that "no "for the protection and lupport of the 

lawoTordinanceihalipasicontaiDlngany fh>ntler aeltlemenCt." The Yazoo act 

matter different from what la expreaied in made a large grant of landt to a coinpan;^ 

the title thereof." In Hayor,&c. of Savan- of ipeculatora. It oonatitDted a prom- 

nah V. State, 4 Ga. 38, Lvmpkin, J., aayi : Inent subject ot controveriy in State 

"Iwould obierve that the traditionary hia- politici for many yeara. 
tory of thli clanie It that it wai Inserted ■ Sun Mntual Iniuraoce Co. v. Mayor, 

Id (be ConititatioD of 1796 at the Instance Ao. of New York, 8 N. T. 339. 



by Google 



CH. yi.3 OF THE SHACTHBNT OF LAWS. 178 

liftvii^ CO cotmectioD, no relation. And with tbis it was designed 
to prevent surpriae in legialation, by having matter of one nature 
embneed in a bill whose title expressed another." ^ And similar 
expressions will be found in many other reported cases.' It may 
thwefore be assumed as settled that the purpose of these provi- 
sions was ; jirtt, to prevent hodge-podge, or " log-rolling " legis- 
lation ; aeeond, to prevent surprise or &aud upon the legislatai6 
by means of provisions in bills of which the titlea 
* gave no intimation, and which might therefore be over- [* 144] 
looked and carelessly aud unintentionally adopted ; and, 
tlurd, to &irly apprise the people, through such publication of 
legislative proceedings as is usutdly made, of the subjects of leg- 
islation that are being considered, in order that they may have 
opportunity of being heard thereon, by petition or otherwise, if 
they shall so desire. 

2. The particularity required in ttating the o^'eet. The gen- 
end purpose of these provisions is accomplished when a law has 
but one general object, which is fairly indicated by its title. To 
require every end and means necessary or convenient for the 
accomplishment of this general object to be provided for by a 
separate act relating to that alone, would not only be unreason- 
able, but would actually render legislation impossible. It has 
accordingly been held tliat the title of " an act to establish a 
police government for the city of Detroit," vres not objectionable 
for its generality, and that all matters properly connected with 
tiie establishment and efficiency of such a government, including 
taxation for its support, and courts for the examination and triaJ 
of offenders, might constitutionally be included in the bill under 
this general title. Under any different ruling it was said, " the 
police government of a city could not be organized without a dis- 
tioct act for each specific duty to be devolved upon it, and these 
eonid not be passed until a multitude of other statutes had taken 
the same duties from other officers before performing them. And 
these several statutes, fragmentary as they must necessarily be, 

> Sute D. Count; Jadge of D&tU Co., otber tliingt, to Mti«t in tbe codiflcation 

2 iDWk, 28a See Sute v. Silver, 9 fie*, of tbe Ibwb. Indiuu Central RailrMtd 

SZT. Co. e. Pott*, 7 Ind, 681 ; Hingle e. SUIe, 

•See Conner v. Mayor, Ac. at Xeir 24 Ind. 28. See People v. Inilitution.&c., 

To^ 5 N. Y. 293 ; DftTi* «. SUIe, T Md. 71 lU. 229 ; Sute r. Ah Sun. 1& Ser. 27 ; 

Ul. The Supreoie Court of Indian* alto a. c. 87 Am. Bep. 454 ; Barriaon v. Snper- 

mdaratuid the prorinon in the Cooatitn- viaon, 61 WU, 646; Albreclit u. SUle, 8 

tioM of that State to be deaipied, aoaons T«x.Ct Ap. 216; a. c. 84 Aoa. Bep. 7S7. 



by Google 



174 OONSTITUTIONiL LIMITATIONS. [CH. VI. 

would often fail of the intended object, from the inherent diffi- 
culty in ezpressiog the legisUtive will when restricted to such 
narrow bounds." ' The generality of a title is therefore no objec- 
tion to it, so long as it ia not made a cover to legislation inoongm- 
ous 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 em- 
ployed in the title in defining it.° One thing, however, is 

> People ti.MmhaDer,13Mich.481,496. roadi, rusted (ome, and prorided for the 

See bIm Horford n. Unger, 6 lowk, B3, re-location of othera. The court tnatuned 

and Whitinf; tr. Mount Pleasant, II Iowa, tbe act. " The object of aa act may be 

462 ; BHght d. McCullocli, 27 Ind. 228 ; broader or narrower, more or leu exten- 

Hayor, &c. of Annapoiit d. State, 80 Hd. iiTe ; and the broader it la, the more par- 

112 ; State v. Union, 33 N. J. 3£0i Hum- ticaUn wlU it embrace. . . . There ia 

boldt County c, Churchill Co. Commla- nndoubtedl; ^reat objection to uniting so 

sionen, 6 Ner. 30 ; 8uie d. SitTer, 9 Ner. many particular! in one act, bat to long 

227 ; State v. Banion, 73 Mo. 76. as the; are of the aame nature, and com« 

* IndlanaCcntratKailroadCo. u.Potta, legitimately under one general determi- 
7 Ind. 661; People d. Briggt, 60 N.Y. 56S; nation or object, we cannot lay that tb« 
Feoplef. Wandi, 23Hicb. 386; Washing act It iinconilitutional." P. 284. Upon 
ton Co. i>. Franklin R. R. Co., 34 Md. 169; thii luhject see Indiana Central Railroad 
Bern t>. Weber, Bl Dl. 288; Johnian n. Co. v. Folta, 7 Ind. 681, where it ia con- 
People, 8S III. 481; Fuller D. People, 92 lidered at length. AlaoBrewgteri:. Sjra- 
IU.182; KurU D. People, 33 Mich. 279. cuw, 19 N. Y. 110; Hall o. Bnnle, 20 Ind. 

* Woodaon v. Murdock, 22 Wall 861. 801; People r. McCallum, 1 Neb. 182; 
Id State c. Bowera, 14 Ind. 196, an act Mauch Chunk s. McGee, 81 Penn. St 438. 
came under cooaide ration, the title to An act entitltd "An act filing the time 
which wai, " An act to amend the fint and mode of electing State printer, defln- 
■ectton of an act entitled ' An act con- ing hii dutiea, fixing compeniaiion, and 
ceming licemes to vend foreign merclian- repealing all lawi coming in conflict with 
dice, to eiliibit any caravao, tnenagerie, thia Act," was aiutained in Walker v. Dun- 
clrcni, rope and wire dancing puppet ham, 17 Ind. 483. In State u. Young, 
■howi, and legerdemain,' approred June 47 Ind. 160, the lomewhat atrict ruling 
16, 1862, and for the encouragement of waa made, that proriilona paniahing in- 
agricutture, and concerning the liceniing toiicatinn could not be embraced in an 
of «tock and exchange brokers." It wa* act entitled "To regulate the sale of in- 
held that the subject of the act «m li- toxicating liquor*." In Snrtx r. People, 
cenaes, and that it was not nnconatita- 33 Mich. 279, tbe conititutional proTiaioD 
tional aa containing more than one sub- i* said to be " a rery wire and wholesome 
Ject. But it wai held also that, as the proTlaion, Intended to prevent legislalora 
licenses which it authorised and required from being entrapped into the careless 
were specified in tbe title, the act conld paaaage o( bills on matters foreign to the 
embrace no others, and consequently a ostensible purpose of the statute aa enti- 
proTiaion in the act requiring concerts to tied. Bat it is not designed to require 
be licenaed was void. In State t>. County the body of the bill to be a mere repeti- 
Jndge of DatIs County, 2 Iowa, 280, tbe tion of the title. Neither ia it intended 
act in queatlon wa* entitled "An act in to prevent including in the bill such tneana 
relation to certain State road* therein a* are reasonably adapted to aecnre the 
named." 'It contained alxty-sii *ectlon*, objects indicated by the title." And aee 
in whlcb It esUbUafaed tone for^-alx Horton a. The Controller, 4 B. C. 480. 



by Google 



ffl.TI.} OP THE ENACTMENT OF LAWS. 175 

«ry • plain ; that the nse of the words " other purposes," [* 145] 
which has heretofore been so common in the title to acts, 
with a view to cover anj and ever; thing, whether connected 
with the main purpose indicated by the title or not, can no longer 
be of any avail where these provisions exist. As was said by the 
Supreme Court of New York in a case where these words had 
been made use of in the title to a local bill : " The words ' for 
other purposes ' must be laid out of consideration. Tbey express 
DOthing, and amount to nothing as a compliaQce with this consti- 
tutional requirement. Nothing which the act could not embrace 
without them can he brought in by their aid." ' 

S. WJuU u end/raced hy 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 re- 
pealing section in the new statute is valid, notwithstanding the 
title is silent on that subject.' So an act to incorporate 
a railroad * company, it has been held, may authorize [* 146] 
counties to subscribe to its stock, or otherwise aid the 
construction of the road.' So an act to incorporate the Firemen's 
Benevolent Association may lawfully include under this title pro- 
No provuion in k ititala harlng Ditnrkl Title, bat entitled merely "Ad KCt to 
connectioD with th« iabject exprened la tegBlize and KUtliorixe tlie aiKMinent of 
Ifae tille mad not foreign to it, la to be itreet im prove men ts Kod ■■■eMmetita," 
decaicd within the conititutionil inhibi- wsi held not to expreti the lubject, be- 
lioD. Johnton d. Higgiiu, B Met. (K7.) canae fkiling to ipecify the locality. Dar- 
fiSO; HcRejnoldi v. KmmllluniM, 8 Buih, kee t>. JaneiTille, 26 Wli. 697. 
4TT ; Annapolii e. State, 30 Hd. 112; Tut- > Gabbert n. RAilrond Co., 11 Tnd. 866. 
lie V. Stroat, T Minn. 466 ; Ounler o. Dale The conititatlon ander which this decision 
Co, 44 Ala. 639 ; Ex parte Upihaw, 45 wa* made required tlie Uw to contain bot 
Al*. at; State H. Price, 60 Ala. 66»; one lubject, anrf matlen properfy amntelid 
Commonwealth v. Drewty, 15 Gratt. 1 ; lierarith; bat the ume decision wa( made 
^ople D. Hnrlbnt, 24 Mich. 44; State under the New Tork Conititution, which 
*. Dnion, 88 H. J. SfiO; State c Silrer, omiti the words here llaliciced; and it 
9 NeT. S27 ; Burke d. Monroe Co., 77 HI. may well be doubted whether the legal 
910; Blood v. Hercelliott, 63 Penn. St. effect of the proTislon it Taried by the 
801; CommoDwealth r. Qreen, 68 Penn. addition of those words. See GtiUford d. 
Sc 2X; Walker 0. Dnobam, 17 Ind. Cornell, IS Barb. 616; People o. Father 
483. Matthew Society, 11 Mich. 6T. 

■ Town Ot FUhkill v. Fishklll and ■ SuperTisori, &c. r. People. 25 Dl. 181. 
Beakmati Plank Road Co., 22 Barb. 634. 80 a provision for the coals on appeal 
See, to the same effect, Rjerson r. Utley, f^m a Jostice it properly connected with 
IS Uieb. 26S; St. Loali v. Tiefel, 42 Mo. the anl^ect of an act entitled "ot the 
678. An act entitled "An act to repeal cer- election and qualiflcation of Jiiatieea of 
lain acta therein named," ia vmd. People the peace, and deflning their jurisdiction, 
V. Mellen, 82 111. 181. An act, having for powers, and duties in ciril caaes." Rob- 
tos sole object to legalise certain proceed- inson e. SUpworth, 28 Ind. 811. 
tafa of lb* Commoa CoancU of Janet- 



by Google 



176 CONSTITUTIONAL LIHITATIONS. [CH. TI. 

visions for lerjing a tax upon the income of foreign insanuce 
companies at the place of its location, for the benefit of the cor- 
poration.^ So an act to provide a homestead for widows aod 
children was held valid, though what it provided for was the 
pecuniary means sufficient to purchase a homestead.^ So an act 
" to regulate proceedings in the 000017 oi^i^ " was held to prop- 
erly embrace a provision giving an appeal to tlie District Court, 
and regulating the proceedings therein on the appeal.^ So an act 
entitled "An act for the more uniform doing of township business " 
may properly provide for the organization of townships.* So it is 
held that the changing of the boundaries of existing counties is a 
matter properly connected with the subject of forming new coon- 
ties ont of those existing.' So a provision for the organization and 
sitting of ooorts in new counties is properly connected with the 
subject of the formation of such counties, and may be included 
in " an act to authorize the formation of new counties, and to 
cliange county boundaries.*'* Many other cases are referred to in 
the note, which will further illustrate the views of the courts upon 
this subject. There has been a general disposition to construe 
tile constitutional provision liberally, rather than to embarrass 
legislation by a construction whose strictness is unnecessary to 
the accomplishment of the beneficial purposes for which it has 
been adopted.^ 



I Firemen'! Auociation r. LonuBbaiy, tho a. Orr, 12 G*. 86 ; Wheeler e>. Bute, 

21 lit. 511. 28 Qt. e i Hill V. Commiwioners, 23 

* SacceuiMi of I^iueUl, 9 L*. Ann. Ga. 203 ; Jcaea v. Colrnnboi, 26 Gs. 
320. aiO; D«nh«m v. Holeman, 26 Ga. 183; 

* Hurpbe; b. Menard, 11 Tex. 678. Allen c. Tiion, 00 0*. 8T4 ; Ez pane 
See State V, Ah Sun, 15 Nev. 27; i. o. Conner, 61 Ga. 671; Biieiwick t>. Mnror, 
87 Am. Rep. 464. &c. of Brniuirkk, 61 Ga. 639 ; People r. 

* Clinton D. Draper, 14 Ind. 396. HcConn, 16 N. Y. 68 ; WiUiami v. People, 
■ Haggard v. Bawkini, 14 Ind. 299. 24 S. Y. 406; People it. AUen, 42 N. T. 

And lee Dancombe e. Prindle, 12 Iowa, 1. 404 ; Huber d. People, 49 N. T. 132 ; Peo- 

* Brandon t>. Sule, 16 Ind. 197. In pie v. RovheBter, 50 S. Y. 626 ; Wenzler 
this cate, and atw in State i>. Bowen, U v. People, 68 N. Y. 61fl; People v. Dud- 
Ind. 196. it waa held that U the title to ley, 68 N. T. 323 ; People i>. QnEgg. fi» 
an original act ia aufflcient to embrace N.Y.S3; Harrliii. People, 69 N. Y. 699; 
the matters covered by the provisioni of In n, Flatboih, 80 N.T. 398; People o. 
an act amendatary thereof, it ia nnneoea- WiUaea, 60 N. Y. 607 ; Matter ot Met. 
larf to inquire whether the title ol an GaaUght Co.,e&N. Y. 526; llailroad Co. 
amendatory act would, of Itself, be lulH. r. Whlteneuk, 8 Ind. 217; Wilkina v. 
cienL And aee Morford v. Unger, 8 Iowa, Miller, 9 Ind. 100 ; Foley v. Sute, 9 lod. 
82. 86S ; Gilleipie t>. Stale, 9 Ind. 880; Me- 

I Green It. Mayor, &&, R. M. Charlt •rberterii.Price,llInd.l99;Iteedv.State, 

863; UarUo t>. Broach, 6 Ga. 21; Fro- 13Iiid.eii; Bamjv. Heory.U Ind.SfiO; 



by Google 



CH. Tl.] OP THB BNACTMINT OP LAWS. 177 

• 4. The effect if the title emhraee more than one ohgect. [* 147] 
FerhapB in those States where this constitutional provision 

Igoe r. SUte. U Ind. 289; Sturgeon n. 269; People d. Denaliy, SO Hich. 340; 

Hitcbeni, 22 Ind. lOT : Laner v. State, 22 People v. Uurlbut, 24 Mich. 44 ; Eurtz v. 

lud. 401; Central Flank Road Co. v. People, 83 Mich. 270; Dorsej'i Appeal, 

Hannainui,22Ind.484;GatTigiilii.Board 72 Penn. St. 192; Allegbeny County 

oT Commiuionen, S9 Ind. 66 ; McCaalin Home'i Ca>9, 77 Peon. St, 77 ; Morton c. 

p. State, 44 Ind. 161; WiUiama c. State, Comptroller-General, 4 S.C. 430; Stale v. 

4S Ind. 300; Jackson v. BeeTei, 68 Ind. Gnn)ej',4S. C. 620; Norman r.CurT}-,2T 

231; Railroad Co. c. Gregor;, IS III. 20; Ark. 440; Di Tig ion of Howard County, 16 

Flremen'a Araociation v. LounsbDry, 21 Kan. 194 ; Simpson v. Baiiej, 3 Greg. 516. 

DL 611 ; Ottawa v. People, 46 IIL 233; In DavU ir. Wooltwngh, 9 Iowa, 104, 

Presoott c Cilj of Chicago, 60 Ul. 121 ; «d act entitled " An act for reiising and 

People V. Brislin, BO III. 428; McAmiich consolidating the laws incorporating the 

p. HtsaiMippi, Ac. R. R. Co., 20 low*, city of Dnbuque, and to establish a city 

388; SuieD.Sqnirei, 26 Iowa, 340; Chiles court therein," was held to express by iu 

B. Drake, 2 Met. (Ky.) 146; PbiUipi o. title but one object, which was, the re»is- 

Btidge Co., 2 Met. (Ky.) 219; LouisTJlle, ing aod congolidating the laws iocorpo- 

Ac. Co. B. BAllard, 2 Met. (Ky.) 177; rating the dty; and tlie city court, not 

Phillips V. Covington, &c. Co., 2 Met. bang an nnuiual tribunal in such a ma- 

(K7.)219: Chilesr. Monroe, 4Met.(K7,) nicipality, might be proTided for by the 

7S; Hind D. Rice, 10 Butb, 628; Cannon act, whe^er mentioned in the title or not. 

V. Hemphill, 7 Tex- 1S4 ; Battle n. How- " An act to enable the superrison of tha 

*rd, 13 Tex. 846; Robinson d. State, 16 city and county of New York to raise 

Tex. 811: Antonio d. Gould, 34 Tex. 49 ; money by tax," proTided for raising 

Ex pane Sogg, 86 Tex. 14; State n. Sha. money to pay judgments then existing, 

die. 41 Tex. 404; State a. McCracken, 42 and also any thereafter to be recovered; 

Tex. 883 : lAefon n. Dufoe, La. Ann. and it also contained the further prori- 

SS9; State v. Harrison, 11 La. Ann. 722; aion, that whenever the controller of the 

Bonier p. Steele. 13 I^. Ann. 433; Wil- city «faould have reason to believe that 

Uama e. Payson. 14 La. Ann. 7 ; Wisnen any judgment then of record or tliere- 

r. Monroe, 26 La. Ann. 698 ; Whited e. after obtained had been obtained by cot- 

If wil, 36 Im. Ann. 668 ; State v. Lafayette lusion, or wa< founded in fraud, he should 

Comity Court, 41 Mo. 221 ; State v. Mil- take the proper and necessary means to 

ler, 46 Ho. 495; State o. Gut, 13 Minn, open and reverse the same, &c. Thit 

Ml; Stiurt d. RintelU, 14 Minn. 624; provision was lield constilutionai, as prop- 

kfUls tr. CharietOD, 29 Wis. 400 ; Evans v. erly connected with the subject indicated 

Sbaipe, 29 Wis. 664; Single e. Super- by the title, and necessary to conflne the 

vison of Marathon, 38 Wis. 363; Harrl- payment* of the tax to the objects for 

•on r. Supervisors, 61 Wis. 645 ; People v. which the moneys were intended to be 

McCallum, 1 Neb. 182; Smails B.White, raised. Sharpo.Mayor,&c.of New York, 

4 Neb 358; Cutlip r. The Sheriff 3 W. 31 Barb. 572. In O'Leary v. Cook Co., 
Va. 688 ; ShieldT v. Bennett, B W. V». 28 HI. 684, it was held that a clause in an 
74; Tuscaloosa Bridge Co. n. Oimstead, act incorporating a college, prohibiting 
41 Ala. B; Weaver o. T.«piely, 48 Ala. the sale of ardent spirits within a dis- 
S4 ; Ex parte Upshaw, 45 Ala. 234 ; tance of four miles, was so germane to 
Lockhart o. Troy, 48 Ala. 678; Walker the primary object of the charter as 
r. State, 49 Ala. 329; Simpson v. Bailey, to be properly included within It. By 

5 Oreg. 615; Pope o. Phifer, S Heisk. tlie firat section of "an act for the relief 
«82; Cannon b. Mathes, 8 Heisk. 604; of the creditora of the Lockport and Ni- 
Stete r. Newark, 34 H. J. 264; GiObrd agara Falls Railroad Company," it waa 
V. B- H. Co, 10 N. J. Eq. 171 ; Keller made the duty of the president of the 
v.8tate,n Md.626; Parkinson p. State, corporation, or one of the ditecton to be 
U Hd 184; Ryerson v. Utley, 16 Mich, appointed by the president, to advertise 

13 



by Google 



178 OONSTITVTtONAL UMTrASlOSa. [CH. Tt. 

[* 148] is limited * in its operation to jmrBte and local bills, it 
might be held that an act was not void for embraoiog two 
or more objects which were indicated by its title, provided one 
of them only was of a private and local nature. It has been held in 
New York that a local bill was not void because embradng general 
provisions also ; ' and if they may constitutionally be embraced in 
the act, it is presumed they may also be coustitutionally embraced 
in the title. But if the title to the act actually indicates, and tlie 
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 impossibility in the court choosing 
between the two, and holding the act valid as to the one and 
void as to the other.' 

5. rfie effect where the act is broader than the title. But if the 
act is broader than tlie title, it may happen that one part of it can 
stand because indicated by the title, while as to the object not 
indicated by tbe title it must fail. Some of the State constitu- 
tions, it will be perceived, have declared tiiat this shall be the 
rule ; but the declaration was unnecessary ; as the general rule, 
that so much of the act as is not in conflict with the constitution 
must be sustained, would have required the same declaration 
from the courts. If, by striking from the act all that relates to the 

and ■ell the real and penonal eitate, in- ftmendmeiita tiiereto; tnd to appoint an 

duding the fHmchiie of the companj, at ^lectton, cliaoie directors, and orgsnlw ■ 

patdic anctioD, to the highest bidder. It corpontdon anew, with the lante power* 

waa then declared that the lale ahould be ai the eiiiting company. There was 

abaolate, and that It ahould reit in the Mien a proTiao. that nothing in the act 

parchaaer or pamhuer* of tlie ptttperly, ahould impair or affect the anbacriptioDa 

real or peraonal, of the company, all the for new itock, or the oUigationa or Uabil- 

ftanchiM, rights, and pnrilegea of the itie* of the company which had been 

corporation, aa fallf and ai abgolutelj ai made or incurred In the exteniion of the 

the aame were then poaaeaied by the road l^om Lockport to Kocheiler, &«. 

company. The money ariaing from the Hie whole act waa held to be conatitn- 

aale, after paying cosU, woi to be applied, tlonal. Moaier ■>. Hilton, 16 Barb. 667. 

first, to the payment of a certain jndg. AodaeeMiilan. Charlelon,29 Wis. 400. — 

ment,and then tootlierlleni according to a rery liberal caae; Erlinger r. Boneaa, 

priority ; and the anrplua, if any, waa to 61 II). 94 : State e. Newark, SI N. J. 2SS ; 

be divided mlahly among the other cred- Smith i:. Commonwealth, H Bash, 108; 

itors, and then, if there ilionld be an orei^ State R. St. Loaia Cathedral, 28 Im. Aon. 

ping, it wM to be divided ratably among 720; Simpson d. Bailey, 8 Oreg, 616; 

the then itockholders. By the set.-ond Ndflng v. Pontiac, 60 Dt. 172. 

section of the act, it was declared that ' People o. McCann, 16 N. T, 68. 

the purchaser or purchasers shoald have * Antonio o. Gould, 84 Tei. 49 ; State 

the right to sell and distribute stock to the d. HcCracken, 42 Tex 888. All the 

fall amount which waa authorized by the cases mMgnise this doctrine. 
■ut of incorpwatioB, and the aererld 



by Google 



CH. YI.] or THB KSiCTMXST Or LAITS. 179 

object not indicated b; the title, that which is left is complete in 
itself, sensible, capable of being executed, and vholly independent 
of that which is rejected, it must be Bustained as consti- 
tutional. 'The principal questions in each case will [•149] 
therefore be, whether the act is in troth broader than 
the title ; and if so, then whether the other objects in the act are 
BO intiinately connected with the one indicated by the title that 
the portion of t^e act relating to them cannot be rejected, and 
leave a complete and sensible enactment which is capable of being 
execnted.* 

As the legislature may make the title to an act as restrictire as 
they please, it is obvious that they may sometimeB so frame it as 
to preclude many matters being included in the act whiijh might 
with entire propriety have been embraced in one enactment with 
the matters indicated by the title, bat which must now be 
excluded because the title has been made unnecessarily restrictive. 
The courts cannot enlarge the scope of the title ; they are vested 
with no dispensing power ; the constitution has made the title the 
conclusive index to the legislative intent as to what shall have 
operation ; it is no answer to say that the title m^ht have been 
made more comprehensive, if ia fact the legislatnre have not seen 
fit to make it so. Thus, " an act concerning promissory notes 
and bills of exchange " provided that all promissory notes, bills oi 
exchange, or other inttmmenU in writif^, for the payment of 
money, or for the delivery of specific articles, or to convey prop- 
erty, or to perform any other stipulation therein mentioned, 

1 Pec^b IL Brigg*, 60 N. T. 56s. See Lockport c. OajIord.Ol HI. 276; Middle- 

Vu Riper p. North Fldoaeia, 43 K. J. port e. Imurance Co.. 82 IIL G62 ; Welch 

Ua ; Central, Ac B. R. Co. v. People, v. Post, 9B UL 471 ; Davu r. SUte, 7 Md. 

6 CoL 89 ; folej v. State. S Ind. 363 ; 161 ; State v. B»nkeri', &c. Amu., 23 Kan. 

Knhna v. Krainis, SO Ind. 490 ; Grubba e. 499 ; Rader v. Union, 89 N. J. SOS : Jone* 

Slate, 24 Ind. SSB ; Stat« n. Toung, 47 d. Thompton, 12 Bnth, SM. In Tmnea- 

Ind. UO ; Robinion t>. Bank of Daden, 18 aee it Is held that if an act contatna more 

Ga. 66 ; Williami e>. Payaon, ]4 La. Ann. than one aubject, it is roid. State v. Mc- 

T; Wearer v. Lapile?, 43 Ala. 224; CaDn,4Lea,l. " None of the proTiaiotu 

Walker v. State, 49 Ala. 829 ; Bojd v. of a atatute ihoold be regarded as uncon- 

8<al«, 63 Ala. 601 ; Ex ptrle Moore, 0S idtutioDal whfre thej all relate, direotlj 

Ala. 471 ; Sute v. Miller, 46 Ho. 486 ; or indiractlj, to the Mme lubJecC, hare a 

Widten o. Honroe, 2& I^. Ann. 596; natural connection, and are not foicien to 

DoTvey'i Appeal, 72 Peno. St. 192 ; Alls- the inhject expreaaed In the title." Ph9- 

ffaenr Omntj Horae*! Caae, 77 Penn. Hp« o. Bridge Co., 1 Mel. {Kj.] 219, ap- 

8t. 77; Tecnmieb c. Philllpa,6Neb.S0S; proTed, 6mltb v. Commonwealth, 8 Badi, 

Matter of Van Antwerp, 66 N. r. 361 ; 1)2. See £r parte Upehsw, 46 Ala. 2U; 

People s. O'Brien, 38 M. T. 193 ; Matter Stewart *. Father MalUiaw Sodetf, 41 

or MatropoUtwi Gaa Co^ 86 K. T. 626 ; Mich. 67. 



by Google 



180 CONSIITCTIONAL LIHITATIONa. [CH. TI. 

shoald be negotiable, and assignees of the eame might eue thereon 
in tbeir own names. It was held that this act was void, as to all 
the instruments mentioned therein except promissorj' 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 embraced them 
all, and which would hare been unobjectionable. It has also been 
held that an act for the preservation of the Muskegon River 
Improvement could not lawfully provide for the levy and coHeo- 
tton of tolls for the payment of the expense of eoiutructing 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 numbers of grand jurors, and to point out the mode of 
their selection, defining their jurisdiction, and repealing all laws 
inconsistent therewith," could not , constitutionally contain pro- 
viuons which should authorize a defendant in a criminal case, on 
a trial for any offence, to be found guilty of any lesser 
[* 160] offence necessarily * included therein.' These cases 
must suffice upon this point ; though the cases before 
referred to will fumiah many similar illustrations. 

In all we have said upon this subject we have assumed the 
constitutional provision to be mandatory. Such has been the 
view of the courts almost without exception. In California, how- 
ever, a different view has been taken, the court saying : " We 
regard this section of the constitution as merely directory ; and, 
if we were inclined to a different opinion, would be careful how 
we lent ourselves to a construction which must in effect obliterate 
almost every law from the statute-book, unhinge the business and 
destroy the labor of the last three years. The first legislature 
that met under the constitution seems to have considered thb sec- 
tion as directory ; and almost every act of that and the subse- 
quent sessions would be obnoxious to this objection. The 
contemporaneous exposition of the first legislature, adopted or 

> Mewherter p. PHoe, II Ind. 199. held that if an act embracei two olyects, 
See alu) State v. Toang, 47 Ind. 160; oalj one of which li tpedfled in the title, 
Jonei B. Thompeon, 12 Biuh, 3M ; Ruah- the whole ii Toid : bat this it opposed to 
ing u. Sebree, 12 Boih, 198 ; Bute i>. Kin- the Mthorltlei generaity. 

Mlla, 14 Mltin. 624. ■ Foley v. Slate, 9 Ind. 363 ; Gilleiple 

> Rjereonn.Utler, ISMich. 269. See d. State, 9 lod. 380. See alio Indiana 
fhrther Wearer o. Laprier, 43 Ala. 224 ; Cent. Railrond Cn. v. Potti, T Ind. 68J ; 
Tnacaloou Bridge Co. g. 01m«te«d, 41 State v. Squires, 26 Iowa, 340 ; State r. 
Ala. e ; Stuart v. Kbielia, 14 Minn. 624. l*hjette Co. Court, 41 Ho. 39 ; People 
In CnUip 0, Sheriff, 8 W. Ta. &88, it waa v. Denahjr, 20 Hich. 849. 



by Google 



CH. VI.'^ OP THE BNACTMBIfT OP LAWS. 181 

acquiesced in by every subsequent legislature, and tacitly assented 
to by the courts, taken ia connection with the fact that right* 
have grown up under it, so that it has becoma a rule of property, 
must govern our decision."^ Similar views have also been 
expressed in the State of Ohio.* These cases, and especially 
nhat is Bfud by the California court, bring forcibly before our 
minds a fact, which cannot be kept out of view in couaidering 
this subject, and which has a very important bearing upon the 
precipe point which these decisions cover. The fitct is this : that 
whatever constitutional provision can be looked upon as directory 
merely is very likely to be treated by the legislature as if it was 
devoid even of moral obligation, and to be therefore habitually dis- 
regarded. 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 bo must be conceded ; that it is so we have 
abundant reason and good authority for saying. If therefore, a 
constitutional provision is to be enforced at all, it must be treated 
as mandatory. And if the legislature habitually disregard it, it 
seems to us that there is all the more urgent necessity that the 
courts should enforce it. And it also seems to us that 
there are few evils which • can be iuflicted by a strict [• 151] 
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 scrupulously observed 
and obeyed. Upon this subject we need only refer here to what 
we have said concerning it in another place.' 



Amendatory Statutet. 

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 
Gection amended shall be set forth and published at full length." * 

1 WuhlngtoD «. Page, 4 Cal. 888. * Aatt, p. "Tf. 

See Herpont v. Cnoch, 10 C>1- 816; 4 This ia the proviiioQ u it it fonod in 

Matter of Boston Mining, Ac, Co., CI C*l. the Conidtntions of Indiins, Nevada, Ore- 

«U: Weilln. KenBetd, 64Ca1..1Il. gon, Teiat, and Virginia. In Kansas, 

* HiUer p. SUte, 3 Ohio St.4TS; Pirn Ohio, Hiubigan, Louisiana, Wiiconein, 

r. NkhfdKin, 6 Ohio St. 177 ; 8Ute v. Mlisouri, and Maryland there are pn>*l- 

CoTington, 20 Ohio 8t lOS. aioiu of aimilar import. In TenneMce 



by Google 



183 O0N8TITUTIOKA1. UmTATIOlfB. [OH. TI. 

UpoD this proTision an important query arises. Does it mean 
that the act or aeotion revised or amended shall be set forth and 
published at full length as it stood before, or does it mean only 
that it shall be set forth and published at full length as amended 
or revised ? Upon this question perhaps a consideration of the 
purpose of the proTision m&j throtr some Hght. "The mischief 
designed to be remedied was the enactment of amendatory stat- 
ntes in terms bo blind that legislators themselves were some- 
times deceived in regard to their efFeots, and the public, from the 
difficulty in making the necessary examination and comparison, 
foiled to become apprised of the changes made in the laws. An 
amendatory act which purported only to insert certain words, or to 
substitute one phrase for another in an act or section which was 
only referred to, but not published, was well calculated to 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- 
hibited 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 
law as amended is given in full, with such reference to the old 

law as will show for what the new law is substituted. 
[* 152] Nevertheless, * it has been decided in Louisiana that tlie 

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< 

tbe provUion ii : " All acU which Terire, anieiidBtoi7 iectlon m aet forth and pab- 
lepeal, or amend former lawi, itiall r«- lished It repealed. Stats n, iDgersoll, IT 
cite. In their caplion or otherwiae, the Wii. 6S1. Further on thli subject le* 
title or BulMtance of tbe Ian repealed, re- Blakemore v. Dolan, 60 Ind. 191 ; People 
vired, or aroeDded." Art, 1, g IT, See d. Wright, TO 111. 3S8; Jones v. Darii, S 
State V. Gainea, 1 Lea, TS4 ; McGhee v. Neb. 83 ; Sorerei^ v. State, 7 Neb. 409 ; 
State, 2 Lea, 022. The proviiion in Ne- Gordon v. People, 44 Mich. 4S5; Sute n. 
bruka I CoDlt. of 18T5] il peculiar. " No Gerger, G6 Mo. 800 ; Vau Riper ■>. Pai- 
law shall be amended unleu the new act son*, 40 N. J. 123; b. c. 20 Am. Rep. 210; 
contains the section or sections so amend- Fleishner n- Chadnic;k. 5 Oreg- 152 ; Slate 
ed, and the section or leclloos so amended n. Cain, 8 W. Va. T2Di Sute v. Hender^ 
shall be repealed." Art. 8, § 11. son,32 Ls- Ann. 7TB; Colnell f- Chamber- 
In Texas it appears to be heid that the lin, 43 N- J. 387. 
legislature maf repeal a definite portion ' People v. Mahaner, 13 Mich. Jt>T. 
of a section without the re-enactment of See Mok e. Detroit, io. AModation, 30 
the section with souh portion omitted. Mich- 511. 

Cbambers v. SUte, 26 Tex. SOT. But * Walker n. Caldwell, 4 La. Ann. 307 ; 

f«ar« of this. Any portioa of a secUon Hdra of Durerge v. Salter, 6 La. Add. M. 

amended which !• not contained in tbe Contra, Shiehla p. Bennett, 8 W. Va. 74. 



by Google 



OH. Yt.'] OF THB BNAOTHBNT OF LAWS. 183 

siona referred to had been made, at one time adopted and followed 
them as precedents.^ It ib believed, however, that the general 
imderstaodiDg of the provisiou in question ia difTerent, and that 
it id full; complied with ia letter and spirit, if the act or aeo- 
tion revised or amended ia set forth and published as revised or 
amended, and that anything more only tends to render the statute 
unnecessarily cumbrous.' It should be observed that atatutea 
which amend others by implication are not within this provision ; 
and it is not essential that they even refer to the acts or sections 
which by implication they amend.* But repeals by impUcatJon 
are not favored ; and the repugnancy between two statutes should 
be very clear to warrant a court in holding that the later in time 
repeals the other, when it does not in terms purport ta do so.* 
This rule has peculiar foroe in the case of laws of special and 
local application, which are never to be deemed repealed by 
general legislation except upon the most unequivocal manifesta- 
tion of intent to that effect.^ 

> lADKdon v. Ap^degate, 5 Ind. 837; Worka Co. v. Barkhart, 41 Ind. 864; 

Bogen p. Stale, e Ind. SI. Theie ckmi Swann v. Buck, 40 MisB. 208; Darii v. 

vera orprniled in Greencutle, &l Co. v. Blate, T Md. 151 ; State p. The Treasurer, 

Stale, 28 lod. 882. 41Mo. 16; SomenetandStoirstonaRoad, 

■ See Ttucaloou Bridge Co- v. 01m- 74 Fenn. St (II ; Kilgore v. CommoD- 
•lead,41 Ala. 9; People c. Prilchard, !il wealth, 94 Penn. St. 466; McCool e. Smith, 
Mich. 236 ; People v. HcCalltun, 1 Neb. 1 Black, 4£9; Suie v. Cain, 8 W. Va. TSO; 
UB; Stale e. Draper, 47 Ho. 29; Boon. Fleiicbner t>. Cliadwick, C Oreg. 162; 
rille «. Trigg, 46 Ho. 288. Under inch Covingtoa e. Eaat St. Lauii, 7S 111. 548 ; 
a conttitutional pniTiiioii wbere a itatute Ea«t St. Loaii e. Hazwell, 00 III. 439 ; /n 
■imply repeala othen, it ia Dot neeeaaai; n By an, 46 Hich. 178 ; Parker v. Hub- 
to Mt tiMm out. Falconer r. Robinson, bard, 64 AU. 208; IvertDu b. State, G3 
46 Ala. Ma Compare Bird v. Waico Ala. 170; Gohen r. Texai Pacific R. R. 
Coimtj, 8 Oreg. 283. Co.,2Woodi,346; Slate e. CommiMlonen, 
* Spencer v. Bute, fr lad. 41; Bnu- 37 N. J. 240; AttonKy-General v. Rail- 
ham V. Lange, 10 Ind, 4DT; FMple v. road Companiei, 36 Wis. 426; Ronndi d. 
HataDBj, 13 Uiuh. 461; Lehman v. Mo- Wafmart, 81 Fenn. St. 396; Greelej c. 
Bride, 16 Obio St 678 ; Sblelda d. Ben- JackiouTilie, 17 Fla. 174 ; State c. Smith, 
aett, 6 W. Va. 74 ; Baum v. Raphael, G7 44 Tex. 448 ; Henderaon'a Tobacco. 11 
CaLSSI; Home ^u. Ca n. Taxing I>it. Wall. 662. It iia famUiarrule.howeTer, 
tilcl, 4 Lot, 644; Swartiront v. Bailroad that irhen a new atatuCe ia eridentl^ in- 
Co., 24 lOch. 889. tended to coTer the whole lubject to which 
' See eaaea died In laat note ; alto it relates, it will hj implication repeal all 
Tewlei'. HaR«tt,8Ue. 23; a. c. 14Am. priortutoteaonthataubject, SeeUniled 
Dk. 900 ; Najlor v. Field. 29 N. 1. 2S7 ; Statea v. Barr, 4 Saw;er, 264 ; United 
Stale r. Berrjr, 12 Iowa, 68; Attorney- State* v. ClaSin, 97 D. S. 646; Dowdell 
Ocaeial*. Brown, IWU. 613; Dodge n. r. SUte, 68Ind. 838; Stale e. Rogen, 10 
Oridlaj. 10 Ohio. 178; Him v. State, 1 Ner. 319; Tafoja «. Garcia, 1 New Mex. 
Ohio St SO i Sanl v. Credliore, 6 Mart 480 ; Campbell'i Cara, I Dak. 17 ; An- 
>. 1. 669; B. c. 10 Am. Dec. 212; New drewi d. People, 76 HI. 006. 
Orieaaa v. Soiltbeni Bank, IS La. Add. • Caaa v. Dillon, 2 Ohio St 607; Foe- 
89; Bkin <t. Baikj, 26 iDd. 166; Water dick v. Perrjibiirg, 14 Ohio St 472; Peo- 



by Google 



184 coNBTrrnxioNAL limitatiohs. [ch. ti. 

It was a parliameDtarj rule that a statute should not bs re- 
pealed at the same session of its enactment, unless a clause per- 
mitting it was inserted in the statute itself;^ but this rule did 
not apply to repeals bj in^lication,^ and it is possibly Dot recog- 
nized in this country at all, except where it is inoorpotated in the 
State constitution.^ 

Signing of BiUa. 

When a bill has passed the two houses, it is ei^^roeBed for the 
signatures of the presiding officers. This is a constitutional 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 con- 
[* 153] stitution of * the State, the governor is a compooent part 

of the legislature, the bill is then presented to him for 
his approval. 

Approval of Law*. 

The qualified veto power of the governor is regulated by the 
constitutions of those States which allow it, and little need be 
said here beyond referring to the constitutional provisions for 
information concerning them. It has been held that if the gov- 
ernor, by statute, was entitled to one day, previous to the ad- 
journment of the legislature, for the examination and approval 

pie !>. Quigg, 69 N. T. 83 ; Oork v. Daren- Am. lUp. 28 ; State v. Mead, 71 Ho. 266. 

port, 14 Iowa, 494 ; OlesoQ v. Green Bsj, The bill u signed niiut be tlie «ame u it 

Ac. S. R. Co., 86 Wis. 888; Covington d. puced the two houges. People v. Piatt, 

Bait St. Louie, 78 111. &48: Chesapeake, 2 8. C. n. s. 160; Legg v. Annapolu, 42 

&c. Co. V. Hotrd, IQ W. Va. 270; Kounds Md. 20S ; Bndy v. West, CO Miti. 6& 

V. Wajmart, St Fenn. St. 896. But a clerical error that would not mia- 

1 Dwarris on Statutes, Vol. I. p. 260 ; lead is to be overlooked. People n. 8u- 

Sedgw. on Stat, and ConeC. Law, 122; perTisorofOiiondaga,16Mich.^, CiMn~ 

Smith OD Stat, and Const ConitractioD, pare Smith n. Hoyt, 14 Wis. 262, where 

008. the error was in publication. And ao 

■ Ibid. And «ee Spencer v. State, 6 should accidental but Immaterial changes 

Ind. 41. in the tranamiieion of the bill from otM 

* Spenceru. Stale.SInd. 41; Attorney- honse to the other. Larriion v, Hailroad 
General v. Brown, 1 Wis. 6IS; Smith Co.,7TLI.lli Walnnt d. Wade, 108 U. 8. 
on Slat, and Const. Construction, SOB ; 683. See Wenner v. Ttioniton, 08 HI. 
Mobile & Ohio Railroad Co, v. State, 2B 166. 

Ala. 673 ; Strauss c. Heiss, 48 Md. 202. ■ Speer d. PUnk Boad Co., S3 Penn. 

• MoodjD. State,48AU. 116; B. c. 17 St 876. 



by Google 



Oa.TL3 OF THE BNACTMBNX OP I^WS. 185 

of laws, this is to be understood as a full day of twenty-four 
boars, before the hour of the final adjournment.' It has also 
been held that, in the approval of laws, the governor is a compo- 
nent part of the legislature, and that unless the constitution allows 
'further time for the purpose, he must exercise his power of ap- 
proval before the two houses adjourn, or his act will be void.' 
But under a provision of the Constitution of Minnesota, that the 
governor may approve and sign "within three days of the adjourn- 
ment of the legislature any act passed during the last three days 
of the session," it has been held that Sundays were not to be 
included as a part of the prescribed time;' and under the Con- 
stitution of New York, which provided that, "if any bill shall not 
be retui-ned by the governor within ten days, Sundays excepted, 
after it shall have been presented to him, the same shall be a law, 
in like manner as if be 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 

1 Hyde ». While, 24 Tex. 187. The approred before the actual adjournmeDt, 
fl*« day a alloired in New Hampahiie for it waa competent to show by parol evi- 
tbe goTemor to return bllla which baye denL'c that the acloal approrai wat not 
not receired liii assent, include daji on until the next daj. Jn «upport of this 
which the legislature 1> not in seision, it ruling, People c. Furdy, 2 Hill, 31, wat 
h hM not flnatl; adjouroed. Opinions of died, where it waa held that [he court 
Judges, tt N. H. 60T. But the day of might go behind the statute-book and iu- 
pnsenting the bill to the goremor should quire whetiier an act to which a two- 
be ezdnded. Opinions of Judges, 45 N. H. thirds rote was essential had constitutioo- 
607 ; Iron Mountain Co, t. Haight, 89 Cal. ally passed. That, however, would not 
HO. As to the power of the governor, be in direct contradiction of the record, 
ifafived from long usage, to approve and but it would he inquiring into a fact con- 
rifn bills aner the adjournment of the ceming which the statute was silent, and 
legislature, see Solomon n. Cartenville, 41 other recorda supplied the needed InfbF' 
G*. 1&7. mation. In Indiana it Is held that the 

Nrilberhoiuerain. irithoQt the conMOt courts cannot look beyond the enrolled 

of tlw other, recall a bill after its trans- act to ascertain nhetber there but been 

mitsloa to the goremor. People v. Dev- compliance with the requirement of the 

Kd, S3 N. T. 269. Constitution that no bill shall be pr«- 

Tlie delivery of a bill passed by the sented to the governor within two days 

two bouse* to the eecretary of the com- next precious to the Hnal adjournment, 

■onweallh according lo custom, is not a Bender n. State, 63 Ind. 254, 
preaentation to the governor for his ap- ■ Stinson v. Smith, 8 Minn. 866. See 

proval, within tlie meaning of the consti- also Corwin b. Comptroller, 6 Rich. S90. 

tntioDal clause which limits him to a In South Carolina a bill sent to the gov- 

certain number of days after the presen- emor on the last day of the first session 

lalion oT the bill to veto it. Opinions of may be signed by him on the first day of 

Uw Justices, 99 Uass. 686. the next regular session, notwithstanding 

■ Fowler v. Peirce, 2 Cal. 166. The an amounted session has intervened. Ar- 

CMTt also held in this case that, notwith- nold u. McKellur, 9 S. C. SS6. 
standing an act purported to have been • See McNlel o. Commonwealth, IS 



by Google 



186 CONSTITUTIONAL UlUTATIONB. [CU. VI. 

after the adjoarament, at any time within the ten days.i The 
governor's approval is not complete until the biU has 

[* 1&4] passed beyond his control * hy the constitutional and cus- 
tomary mode of legislation ; and at any time prior to that 

he may reconsider and retract any approval previously made.' His 

Bnih, 727. Id computlnfi the ten diyi, at the time of tigning hb approvkl, uid 

the Brit daj should be excluded. Bean- tranaaiiited it to the house where the bill 

deiD B. Cape Ginrdetu, 71 Mo. SltS. originated, haring firit erased hii ligna- 

1 People V. Bowen, 30 Barb. 24, and ture and approTaL It wai held that tha 

21 N. Y. 617. See alio State v. Fagan, bill had not become a law. It had neTer 

22 La, Ann. MS ; Solomon c. Commiuian- pasted out of the goTemor's poKesiion 
en, 41 Ga. 167 ; Seren Hickory f. EU after tt wm reccired by him until after 
larj, 103 U. 8. 423. It aeemi that in bebaderaKdhii liguatureuid apprOTal; 
Nebraska, in a aimilar provision, by " ad- and tlie court was of opinion that it did 
joumment"ii meant the final at^oum- not pais from hii control nntil it had be- 
meat; and if the lame seaiion ii ad- come a law by the lapae of ten days nnder 
Jourued for a time — in this case two the constitution, or by his depositing it 
montbj — tbe governor must act upon the with his approval In the ofBce of the sec- 
bill within the specified number of days, retary of state. It had long been the 
Hiller V. Hurtord, 11 Neb. 377. Where practice of the governor to report, lor- 
on the tenth day the governor sent a bill merly through the secretary of state, but 
with hii objection! to the hotue with recently through his private *ei.Tetary, to 
which it originated, bnt tbe messenger, the house where bills originated, his ap- 
BndlDg the house had adjaumed for tha proval of them ; bnt this was only a 
day, returned it to the governor, who re- matter of formal courtesy, and not m 
talned it, it was held that to prevent the proceeding Decessary to the making at 
bill becoming a law it should have been imparting vitality to the law. Byitnokct 
left with the proper officer of the house coald beoome a law which without it 
instead of being retained by the gover- would not be a law. Had the governor 
nor. Harpendiog d. Haight, SO Cal. 180. returned tbe bill itself to the bouse, with 

■ People V. Hatch, 10 III. 283, An his ntasige of approval. It would haT« 

act apportiuning the representatives was pacsed twyond hi* control, and tbe ap- 

passed by tbe legislature and traniraitled proval could not hare been retracted, 

to tlie governor, who signed his approval imless the bill had been withdrawn by 

thereon by mistake, sapposing at the consenlof Uiehonse; and tbe same reinlt 

time that he was subicribing one of lev- would have followed his filing the bill 

eral other bills then lying before him, and with the secretary of state with his ap- 

claiming his official attention ; bis private proval subscribed. 

secretary thereupon reported the bill to The Constitution of In^ana provldea 

tbe legislature a« approved, not by the {art. 6, f 14) that, "If any bill shall not 

special direction of tbe governor, nor be returned by the governor within thrett 

with his knowledge or special assent, but days, Sundays excepted, after it shall 

merely in bis usual routine of cnsiomary have been presented to htm, it shall be a 

duty, the governor not being conscious law without his signature, unless the gen- 

that he had placed his signature to the eral adjournment shall prevent its return; 

bill until after information wa* brought in which case it shall be a law unlese the 

to him of its having been reported ap- governor, within five days nest after tha 

proved ; whereupon be sent a message to adjournment, shall file such bill, with hU 

tbe speaker of the bonse to which it wai objections therato, in tbe ^Bca of tb« 

reported, stating tlut it had been inad- secretary of state," &o. Under this pro- 

vertently aipied and not approved, and vision it was held that where the gover- 

on the same day completed a veto mes- nor, on the day of the final adJoummeBl 

■age of tbe IhU which was partially written of the legialature, and after tlie adjoam- 



by Google 



OH. YI.3 or THB BKACTMENT OF LAWB. 187 

^sapproval of a bill is communicated to the faouae in which it 
(Higinat«d, with hia reasons; and it is there reconaidered, and 
may be again passed ovet the veto by such Tot« as the constitu- 
tion presoibes.* 

• Other Powert of the Governor. [* 155] 

The power of the governor as a branch of the legislative depart- 
ment is almost exclusively confined to the approval of bills. As 
executive, he communicates to the two houses infonnation con- 
cerning the condition of the State, and may recommend measures 
to their consideration, but he cannot originate or introduce bills. 
He may convene the l^islature in extra session whenever extraor- 
dinary occasion seems to have arisen ; but their powers when con- 
vened are not confined to a consideration of the subjects to 
which their attention is called by his proclamation or his message, 
and they may legislate on any subject as at the regular sessions.^ 

nient,fil«d » bill received that daj-, in tbe ing to the people, — it miut follow thkt 

offlce o( tlie KcreUrj of itale, withoat ksybilt which the two hoiuei have passed 

api»oval or objections thereto, it thereby must be approTsd b^ tlie monarch. The 

beckme a Uw, and he conld not Sle ob- approTal hM become ■ rnatter of couna, 

Jecliona afterwards. Tarllon c. Peggi, 16 and Che goreming power in Great Bniain 

Iitd. 24. is (ubauntiatly in the House of Commons. 

An act oT the le^slatnre takes effect 1 B\. Com. 184-IB5, and notes. 
•ben the gorenor signs it. anless the ' The Constitution of Iowa, ttrt. 4, 

coDstilalioD contains some diflbrent pro- { 11, proTJdes that the goremor "may, 

Tinon. Hiii v. Stale, 6 Lea, 726. on exiraorditiary occasioni. convene tlie 

' A bill which, as approved and signed, General AMembljr bf proclamation, and 

difien in important pajliculars from the shall state to both houses, when assem- 

ODe signed, is no law. Jones ■>. Hatcluu- bled, the purpose for which they have 

SOD, 13 AIjl 721. been convened." It was held io Morford 

If the govenior sends bacic ft bill r. Unger, 8 Iowa, 82, that the General 

•iilch bas been submitted to him, stating Assembly, when thus convened, were not 

that he cannot act upon it because of cooflned in their legislation to the pap- 

•Otoe snpposed informality in its passage, poses ipeciflsd in the message. " When 

tUa Is in effect an objection to the bill, lawfully convened, whether in virtue of 

and it can only become a law by further the provision In the conititution or the 

•ctiim of the leglslatnrD, even though the governor's proclamation, it is the ' General 

governor may have been mistaken as to Assembly ' of the Sute, in which the full 

llie supposed infonnality. Btrdsall v. and eicluaire legislative authority of tba 

Carrick, S Nev. IbL Sute is vested. Where its business at 

Id practice the veto power, although such session Is not restricted by some con- 

Tery great and exceedingly important In stJtutional provision, the General Assem- 

this country, is obsolete in Great Britain, bly may enact any law at a special or ex- 

aud DO king now ventures to resort to it. tra aesalon that It might at a regular ses- 

As Uie Ministry must at all titues be in sion. Its powers, not being derived from 

accord with the House of Commons, — the governor's proclamation, are not con- 

eicept wher« the reaponiibility is taken Bned to the special purpose for wbich it 

irf d^aolring the Farliament and a^Mal- may have be«i oonvened bjr him." 



by Google 



188 CONSTITCtTIONAL LIMITATIONS. [CH. VI. 

An exception to this statement exists in those States where, hj 
the express terms of the constitution, it is provided that when 
convened in extra session the legislature shall consider no subject 
except that fui which they were specially called together, or 
which may have been submitted to them by Bpecial message of the 
gOTemor.^ 

When Acta are to take Effect. 

The old rule was that statutes, unless otherwise ordered, took 
effect from the first day of the session on which they 
£• 156] were passed ; ' • but this rule was purely arbitrary, based 
upon no good reaaon, and freq^uently working very 
serious injustice. The present rule is that an act takes effect 
from the time when the formalities of enactment are actually com- 
plete under the constitution, unless it is otherwise ordered, or 
unless there is some 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 aixty days after the passage thereof." By the Con- 
stitution of Illinois,'^ no act of the General Assembly shall take 
effect until the first day of July next after its passage, unless in 

I ProvUiont to thli effect will be d>;. In n Welinan, 20 V(. 953; Mal- 

fbnnd in the ConstitDtioni of niinoia, lory v. Hilee, 4 Met (K7.) 53; Wood v. 

Michigan, MiMOuri, lud Kevkda; per- Fort, 12 Al*. 611. Others hold that it 

lupa in Bome othen. haa eSect from the momeDt of iU ftp- 

* 1 Lev. 01 ; Latleu v. Holmei, 4 T. proral by Che goirenior. People v. Clark, 
R.660; SmilhcSmith, Mart. (N. 26; 1 Cal. 406. See /n re Wjime, Chaae, 
Hamlet e. Tajlor, E Jonei, L. 36. This Dec. 22T. 

ii changed bj 33 Qeo. III. c. IS, by which • Art. T, S 6. 

(taintes aince puBed take effect tiota the * Art. S, $ !3, The intention that an 

day when they rceeiTe the royal auent, act ihall take eflect looner mtiit be ez- 

nnleiR otherwise ordered therein preued clearly and unequivocally ; It ii 

* Matthew ■ v. Zane, 7 Wheat. 1S4; not to be gathered by intendment and in- 
Rathbone t. Bradford, I Ala. 312; ference. Wheeler v. Chubbuck, 16 IIL 
Branch Bank of Mobile e. Murphy, 8 361, See Hendricktoa v. Hendrickion, T 
Ala. 119; Heard v. Heard, B Qa. S80; Ind. la 

Goodsell e. Bnynton, 2 111. 566 ; Dyer v. Where an act is byita exprets tenna to 

State, Meiga. 237 ; Parkinaon u. State, 14 take effect after publication in a apecifled 

Md. 184. An early Virginia ca«e de- newspaper, every one I1 bound to take 

cidea that " IVom and after the paaatng notice of thig fact ; and if before anch 

of thl» act" would exclude the day on publicadon negotiable paper ii i«aned 

which it was passed. King v. Moore, under it, the purchasers of such paper 

Jefferson, 9. On the other hand, it is can acquire no rights thereby. McClnre 

held in some caies that a itatute which e. Oxford, 94 U. S. Rep. 120; following 

takes effect from and after its passage, George b. Oxford, 16 Eao. 78. 
has relation to the Irat moment of that 



b, Google 



CH. VI.3 OP THE ENACTMENT OF LAWS. 189 

case of emergeDcy (which emergency shall he expressed in the 
^eamble or body of the act) the Genera] Assembly shall, by a 
'vote oE two-thirds of all the members elected to each house, oth- 
erwise direct By the ConstitutioB of Michigan,' no public act 
shall take effect, or be in force, until the expiration of ninety days 
fi'om the end of the session at which the same is passed, unless 
the legislature shall otherwise direct by a two-thirda vote of the 
members elected to each house. These and similar provisions are 
designed to secure, as far as possible, the public promulgation of 
the law before parties are bound to take notice of and act under 
it, and to obviate the injustice of a rule which should compel pat- 
ties at their peril to know and obey a law of which, in the nature 
of things, they could not possibly have heard ; they give to all 
parties the full constitutional period in which to become ac- 
quainted with the terms of the statutes which are passed, ezoept 
when the legislature has otherwise directed ; and no one is bound 
to gOTem his conduct by the new law until that period has 
elapsed.* And the fact that, by the terms of the statute, some- 
thing is to be done under it before the expiration of tbe constitu- 
tional period for it to take effect, will not amount to a legisla- 
tive direction that the act shall take effect at that time, if 
the act itself is silent as to the period when it shall go into 
operation.' 

• The Constitution of Indiana provides' that " no act [• 157] 
shall take effect until the same shall have been published 

and circulated in the several counties of this State, by authority, 
except in case of emeigency ; which emei^ency shall be declared 
in the preamble, or in the body of the law." Unless the emer- 

< Art. t, { 20. tiroe it tboald take efEect, and tt wh 

« PricB D. HopkfD, 18 Mich. 318. See, tlierefore lieLd that it would not Uke 

koweTer,Smilhir.Momaon,22Pick.430; efiect until «iity days from the end of 

Stine B- Bennett, 13 Minn. 153. Compare tlw •eu[aD, and a Tote ot the electori 

State ■- Bond,* Jone«(N. C), 9. Where taken on the 17th of March wai void, 

a Uw haa failed to take effect for want See alto Rice 0. Ruddiman, 10 Mioh. 125; 

of publication, all partiea are chai^eable Rogers r. Vasi, 6 Iowa, 406. And it wat 

with notice of that fact. Clark f. Jane*- alao held in the cok first named, and In 

Tilta, 10 Wia. 136. Wheeler v. Chubbuck, 16 111, S61, (hat 

• SopenisonoflroqnotaCo.!'. Eeady, "the direction muit be made in a clear, 
H in. 293. An act for tbe removal of a distinct, and noequiTocal prorision, and 
coonty (cat provided for taking the vote coold not be helped out by any sort of 
of Qte eledora of the county upon it on intendment or implication," and that tba 
tbe 17lh of March, 1863. at which time act must ail take effect at ooce, and not 
llw legJilatDie had not adjouraed. It wa« by piecemeal. 

not ezpreialj declared in the act at what * Art. 4, ) 28. 



by Google 



190 COKSTITUTIOMAI. UMTTATIONB. [CH. VI. 

geooy is thus declared, it is plain that the act cannot take earlier 
effecL' But the courts will not inquire too nicely into the mode 
of publication. If the laws are distributed in bound volumea, in 
a manner and shape not substantiallj contrary to the statute on 
that subject, and by the proper authority, it will be held soffi- 
cieat, notwithstanding a failure to comply with some of the direo- 
tory provisions of the statute on the subject of publication.* 

The Constitution of Wisooosin, on the other hand, provides' 
that '* no general law shall be in force until published ; " thus 
leaving the time when it should take effect to depend, not alone 
upon the legislative direction, but upon the further fact of publi- 
cation. But what shall be the mode of publication seems to be 
left to the legislative determination. It has been held, however, 
that a general law wag to be regarded as puAlithed although 
printed in the volume of private laws, instead of the volume of 
public laws as the statute of the State would require.* But an 
UDautborized publication — as, for example, of an act for the 
incorporation of a city in two local papere instead of the State 
paper — is no publication in the constitutional sense.' The Con- 
stitution of Louisiana providea that *' No law passed by the 
General Assembly, except the general appropriation act, or act 
appropriating money for the expenses of the General Assembly, 
shall take effect until promulgated. A law shall be considered 
promulgated at the place where the State journal is published the 
day after the publication of such law id the State journal, and in 
all other parts of the State twenty days after such publication." 

1 Cirpenter v. Hontgomerj, 7 BLtckf. thli proTiiioii it ha* been dedded SxU a 

416; Hendrickion v. Hendrickaon, 7 Ind. Imw «Ubli«hiDg a municipal court Jd a 

IS ; Mark v. SUte, 16 Ind- 08. The 1e^ city 1b a general law. Hatter of Boyle, 

itlature muit neceiMTily in thete cans tupra. See Gitel d. Sute, 33 Ind., 201. 

be judge of the existence of the eroer- Alio a itatute tar the removal of a connty 

geacj. Carpenter v. Montgotmrj. tvpra. leat Btate v. Lean, 9 Wis. 279. AIm a 

The ConiHlutlon of Tenneteee provide! atatute incorporating a mnnicipality, or 

that "No law of a general nature shall anChoHzing it to tuue bondi in aid of a 

take tCect until forty day* after iti paa- railroad, Clark c. JanciriUe, 10 Vis. 

■age, unlcM the same, or the caption, 138. And see Scott i>. Clark, 1 Iowa, 70. 

■hall state thatthepnblleirelfsre require* An inaccuracy in the publication of a 

that It should Uke eflbct looaer." Art. 1, sUtute, which does not change Its lub- 

j aO. stance or legal eOeet, will not InTalidate 

* Bute B. Batley, 19 Ind. 4S. Se« the pablioation. Smith v. Hoyt, 14 Wis. 
fhrtber, a* to this constitutiotial prori- 2S2. 

■ion, Jones b. Gavins, 4 Ind. 806. • Clark s. JanesvUle, 10 Wis. IM. 

* Art. T, S 21. See, further, HiUt v. Jefferson, 20 ^ii. 

* Matter o( Boyle, eWl«.S64. Under GO. 



by Google 



Ca. ▼!■] OP THE EKACTHEMT 07 LAWS. 191 

Under similar provisions in the Civil Code, before the adoption of 
this Couslitution, it was held that *' the promulgation of lawtt is 
an executive function. The mode of promulgation may be pre- 
scribed by the legislature, and differs in different countries and at 
different times. . . . Promulgation is the estriosio act which 
gives a law, perfect in itself, executory force. Unless the law 
prescribes that it shall be executory from its passi^, or from a 
certain date, it is presumed to be executory only from its promul- 
gation." 1 But it is competent for the legislature to provide in an 
act that it shall take effect from and after it« passage ; and the 
I act will have operation accordingly, though not published in the 
official gazette.' In Pennsylvania, whose constitution then in 
force also failed to require publication of laws, the publication 
was nevertheless held to be necessary before tbe act could come 
into operation ; but as the doings of the legislature were public, 
and the journals published regularly, it was held that every enact- 
ment must be deemed to be published in the sense necessary, and 
the neglect to publish one in the pamphlet edition of the laws 
would not destroy its validity.' 

• The Constitution of Iowa provides that "no law of [• 158] 
tbe General Assembly, passed at a regular session, of a 
public nature, shall take effect until the fourth day of July next 
after the passage thereof. Laws passed at a special session shall 
take effect ninety days after the adjournment of the General As- 
sembly 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 le^s- 
lature to confer upon the governor the discretionary power which 
tbe constitution gives to that body, to fix an earlier day for the 
law to take effect.' 

I State B. Ellti, IT I^ Abd. 890, S92. ture require! the wme publication m uf 

• 8t«» r. Jndge, 14 I*. Ann. 486 ; other law. SUte v. School Board Fund, 
Tbocnaa d. Soott, S3 La. Ann. 6B0. In 4 Kan. 261. 

Hat7laDd a limilar condniion i* reached. * Art. S, j 26. See Hast n. Mnrraj, 

Paikiniun c. Slate, 14 Hd. 1S4. 17 Iowa, 313. 

• PMerman v. Ruling, 31 Penn. St * Scott n. Clark, 1 Iowa, 70; mkej c 
4(2. A jdnl Ktolatioa of a geiieml na. Qleuoa, 1 Iowa, ^i. 



by Google 



COKSTITUTIONAL LUUTATIOSS. [CH. Vn. 



[•159] •CHAPTER VII. 

OP THE CIECUM8TANCK8 UNDER WHICH A LEGISLATIVE BHACIV 
MBNT MAY BE DECLARED UNCONSTITDTIONAL. 

In the preoeding chapters we have examined somewhat briefly 
the legislative power of the State, and the bounda which expressly • 
or by implication are set to it, and also some of the conditions 
necessary to its proper and valid exercise. In so doing it has 
been made apparent that, under some circumstances, it may be- 
come the duty of the courts to declare that what the legialatare 
has assumed to enact is void, either from want of constitutional 
power to enact it, oi because the constitutional forms or condi- 
tions have not .been observed. In the further examination of our 
subject, it will be important to consider what the circumstances 
are under which the courts will feel impelled to exercise this high 
prerogative, and what precautions should be observed before 
assuming to do so. 

It must be evident to any one that the power to declare a leg- 
islative 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 ofEcial oath decline the responsibility. The legislative 
and judicial are co-ordinate departments of the government, of 
equal dignity ; each is alike supreme in the exercise of its proper 
functions, and cannot directly or indirectly, while acting within 
the limits of its authority, be subjected to the control or super- 
vision of the other, without an unwarrantable assumption by that 
other of power which, by the constitution, is not conferred upon 
it. The constitution apportions the powers of government, but it 
does not make any one of the three departments subordinate to 
another, when exercising the trust committed to it.' The courts 
may declare legislative enactments unconstitutional and void in 

> B«te» V. Kimball, 2 Chip. 77 ; Bailey Hswldm v. Oovenior, 1 Ark, 570 ; Peo- 
V. Philddelphia, &c. R. R. Co., * Hnrr. pie v. QoTemor, 29 Mich, 320; i, o. 18 
889i Whittinglon D. Folk, 1 U.&J.ZSa; Am. Rep. 80, 



by Google 



CH. YU.] DZCLABQfG STATUTES UNCONSTITUTIONAL. 198 

some cases, but not because the judicial power ia superior in 
degree or dignity to the legislative. Being required to declare 
vbat the law is m the cases which come before them, they must 
enforce the constitution as the paramount law, whenever 
a legislative * enactment comes in conflict with it.' But [* 160] 
the courts sit, not to review or revise the legislative ac- 
tion, but to enforce the legislative will ; and it is only where they 
find that the 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^igh authority, the judges claim no judicial supremacy ; they 
are only the administrators of the public will. If an act of the 
legislature is held void, it is not because the judges have any con- 
trol 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 representaUves 
expressed in any law." ' 

Kevertheless, in declaring a law unconstitutional, a court must 
necessarily cover the same ground which has already been cov- 
ered by the l^islative department in deciding upon the propriety 
of enacting the law, and they must indirectly overrule the deci- 
rioD of that coordinate department. The task is therefore a 
delicate one, and only to be entered upon with reluctance and 
bedtation. It is a solemn act in any case to declare that that 
body of men to whom the people have committed the sovereign 
function of making the laws for the commonwealth have delib- 
erately disregarded the limitations imposed upon this delegated 
authority, and usurped power which the people have been careful 
to withhold ; and it is almost equally so when the act which is 
adjudged to be unconstitutional appears to be chargeable rather 
to careless and improvident action, or error in judgment, than to 
intentional disregard of obligation. But the duty to do this in a 
proper case, though at one time doubted, and by some persons 
perastently denied, it is now generally i^;reed that the courts 
cannot properly decline, and in its performance they seldom &il 

> Bica «. 8Ute, 7 Ind S82 ; Bloodgood ■ Uodwj p. Commiwioaen, ke-, 3 Bay, 
i>- Hohask and BodMO KailTOAd Co., 18 88, 01 ; pMple v. Eucker, 6 CoL 6. 
Tend.*. 



by Google 



194 CONSTrrUTIONAL LTMITATI0B8. [CH. VJI. 

of proper support if they proceed with due caution and circam- 
spection, aud under a proper sense as well of their own respon- 

sibility, as of the respect due to the action and judgment of the 
law-makers.' 

' There are st leut two ca«ea in Amer- April, 1803, and thongh nearly tirentj- 
IcMi JDdidiO hl*(or7 wlwre Jadget have WTen jtan old, he wu veiy youthful In 
been impeached ■■ criininiUa for refVising his Appearance. He held the office nntU 
lo enforce unconttitutional enactment*. March t, 1810, when he leiit hi* reiignk- 
One of theae — the ca«e of Treretc v. llon to Ooiemor Huntingdon. . . . Dur- 
WeedoQ, decided bj the Superior Court ing his term of lerriee upon the bench 
of Rhode Itlandin 1786 — it particularly many iateteMJngqoeatioDi were presented 
interesting as being tlie first caae in which for decision, and among them the consli- 
a legiilatWe enactment waa declared nn- tutlonality of some portion of the act of 
cotutitntional and void on the ground of 1S06, deflniog the duties of justicos of the 
Incompatibility with the State conatitu- peace ; and he decided that so mpch of 
tion. Hr. Arnold, in his history of Khode the Sfth section as gave juatices of the 
Island, VoL IL c. 24, givea an account of peace jurisdiction eiceediug fSO, and aa 
tills case ; and llie printed brief in oppn- much o( the twoiity-ninlli section as pre- 
aition Ui the law, and in defence of the vented plainti&s from recovering casta in 
impeached judge*, is in posMMbn of th« actions commenced by original writ* in the 
present writer. The act in qneation was Court of Common Pleas, for sums between 
one which imposed a heavy penally on (20 and 9M, were repugnant to the Con- 
any one who should refuse to receive on stltution of the Uniied Statei and □( the 
the same Cermi as apecie the bills of a State of Ohio, and therefore null and 
bank chartered by the State, or who void. . ■ ■ The clamor and abuse to 
should in any way diioourage the ciicu- which this deciaion gave riae wns not in 
latloQ of such hilU. The penalty was the least mitigated or diminished by tlie 
made collectible on summary cnnvictioii, circumstance (bat it was concurred in 
without jury trial; and the act wsa held by a majority of the judgea of the 
void on tlie ground that jury trial was Supreme Court, Messrs. Huntingdon and 
expressly given by the colonial charter. Tod. ... At the aession of the leg- 
which then constituted the conatitution of iaUture of 1807-8, step* were taken to 
theState. Although the judges were not impeach him and tlie judges of the 
removed on impeachoient, the legialature Supreme Coort who concurred with 
refused to re-elect them when their terms him ; but the resolutions introduced 
expired at the end of the year, and sup- into the house were not acted upon 
planted them by mora pliant tools, by during the session. But the scheme 
whose assistance the paper money was was not abuidoned. At an early day 
fbrced into circulation, and public and of the next session, and with almost Inde- 
private debts extinguished by means of cent haste, a committee waa appointed to 
it. Concerning the other case, we copy inquire into the conduct of the offending 
tron the Western Law Monthlj'. " Sltett:h judges, and with leave to exhibit articles 
of Hon. Calvin Pease," Vol, V. p 3, of impeachtnent, or report otherwise, as 
June,1803: "Tbe first session of Die Su- the hcta might joitlfy. The committee 
preme Court [of Ohio] under the consii- without dday reported articles of im- 
tution was held at Warren. Trumbull peachnientagainstMessrs.PeaseandTod, 
County, on the first Tuesday of June, but not against Huntingdon, wlio in the 
1808. The St^te was divided into iht«e mean time l«d been elected governor of 
drcuita. . . . The tliird circuit of tlie tlie Slate. . . . The articles of impeach- 
State waa cotnpoaed of the counties of ment were preferred by the House of Rep- 
Washington, Belmont, JefEerson, Colam- reaentatives on the 23d dny of December, 
biana, and Trumbull. At this session of 1806. He waa summoned at once to ap- 
the legislature, Mr. Pease was app<^nted pur before the Senate as a high court of 
President Judge of the Third Circuit in impeacbmeot, and he promptly obeyed 



by Google 



CH. TIT.;i DECLABIKG STATUTES DHOONSTTTOTIONAL. 195 

• I. In view of the coniiiderations which haye been sog- [" 161] 
gested, the rule which is adopted by some courts, that they 
will not* decide a legislative act to be unoonstituldoaal [*162} 
by a majority of a bare quorum of the judges only, — 
less than a majority of all, — but will instead postpone the argu- 
ment nntil the bench is full, seems a very prudent and proper 
precaution to be observed before entering upon questions bo deli- 
cate and eo important. The benefit of the wisdom and delibera- 
tion of every judge ought to be had under circamBtancea so grave. 
Something more than private rights are invidved ; the funda- 
mental law of the State is in question, as well as the correctness 
of legislative action ; and considerations of courtesy, as well as 
the importance of the question involved, should lead the court to 
decline to act at all, where they cannot sustain the legislative 
action, until a full bench has been consulted, and its deliberate 
opinion is found to be against iL But this is a rule of propriety, 
not of constitutional obligation ; and though generally adopted 
and observed, each oourt will r^ulate, in its own discretion, its 
practice in this particular.' 

tte nimnioiu. The nunagera of the pro Iktara at that time, CalTin Cone, E«q., 

•rcmtion od the part ol the Boum were took no pains to loothe the otlended Hg- 

Tbomaa UortU, afterwuili MDator in nil; of the membera of that bodf , or their 

CoBgren from Ohio, Joteph Sharp, Jamei BfoipathiDDg uonitituenti, but preiaed a 

FritdMTd, Ssmnel Marrett, and Othaiel contrarj line of conduct The Judge* 

Tooker Seretal days were coo- mut be hrooglit to Justice, he insiiled 

■amed in tfae ioTeiUgBtioD, bat the trial TebemeDtlr, and be puniihed, to that 

rMoltad in th« acquittal of the rMpou- others might be terriSed hj the example, 

dcnL" Sketch of Bon. George Tod, and deterred tram committing timilar of- 

AngTut number of umeTolume; "At the fence* in the (utnra. The chargea againit 

•Mtioo of tlte legislature of \fm~Q, he Mr. Tod were aubstantially the same •• 

was impeached for concurring in decisions tliose against Mr. Pease. Mr. Tod was 

made bj Jadge Pease, in the counties of first tried, and acquitted. The managers 

Trumbull and Jefferson, that certain pro- of the impeachment, ss well as the result, 

TisioDa of the act of the legislature, passed were the same in both cases," 
in 1S06, defining (tie duties of Justices of ' Briscoe e. Commonweatth Bank of 

the peaces were in conflict with the Coo- Kentocky, 8 Pet 118. It has been in- 

UiMiioa of the United Sutes and of the timated that inferior courU should not 

State of Ohio, and therefore Toid. These presume to pass upon constitutional que*- 

decisiona of the courts of Common Ptau tlons, but ought in all cases to treat atat- 

and of the Supreme Court, it was [ntiited, ntes as valid. Ortmsn v. Greenmau, 4 

wcfe not onlj an assault upon the wisdom Mich. 391. But no tribunal can exercise 

and dignitj, but alio upon the lupremacj judicial power unless It is to decide ac- 

of the legislature, which passed the act cording to it* judgment; and it is difficult 

te qoeatioa. This could not be endnredj to ditcover an; principle of justice which 

aad the popular tarj against the judge* can reqiure a magistrate to enter upon 

roa* to a.verj high pitch, and the senator the execntioo of a statute when he be- 

fton the com^ of Tnuobalt In the legis- Uerai It to be luTaiid, especiallj when he 



by Google 



196 CONSTITUTIONAL LIMITATIONS. [OH. VH. 

[^ 168] * II. K'either will a court, as a general rule, pasa upon 
a coDstitutional question, and decide a statute to be io- 
valid, unless a decision upon that veiy point becomes neoessary 
to the determination of the cause. " While courts caunot shun 
the discussion of constitutional questiooa when fairly presented, 
they will not go out of their way to find such topics. They 
will not seek to draw in such weighty matters collaterally, nor 
on trivial occasions. It ia both more proper and more respect- 
ful to a cOK>rdinate department to discuss constitutional questions 
only when that is the very lit mota. Thus presented and deter- 
mined, the decision carries a we^ht with it to which no extra- 
judicial disquisition is entitled." ' In any case, therefore, where 
a constitutional question is raised, though it may be legitimately 
presented by the record, yet if the record also presents some 
other and clear ground upon which the court may rest its judg- 
ment, and thereby render the constitutional question immaterial 
to the case, that course will be adopted, and the question of con- 
stitutional power will be left for consideration until a case arises 
which cannot be disponed of without considering it, and when 
consequently a decision upon such question will be unavoidable.* 

tnuit tberebj But^ect himself to proeecn- gard the constitution in forming Iti opin- 
tion, without any indemnity in the law if ioni. The constitntion ii law, — the fan- 
It prorei to be invalid. Undoubtedly damental law, — and muBt aa much bo 
when the iiigheat courts in the land heai- taken into cx>nsidemion by a Joitice of 
t>t« to declare a law unconstitutional, and the peace u by any other tribunal. When 
allowmuch weight to the le^slaliTejudg- two laws apparently conflict, it it the 
ment, the inferior courts should be atill duty of all courts to construe them. If 
mote reluctant to exercise this power, and the conflict is irreconcilable, tliey ninit 
a becoming modesty would at least be decide which is to preTail ; and the con- 
expected of those judicial officers who stitudon is not an exception to this rule 
have not been trained to the investigation of construction. If a law were passed in 
of legal and cons lltutional questions. But open, flagrant riolation of the contlita- 
In any case a Judge or juMice, being free tion. should a justice of the peace regard 
from doubt In his own mind, and unfet- the law. and pay no attention to the cen- 
tered by any judicial decision properly *titutlonal proTiaion? If that is hli duty 
binding upon him, mu»t follow his own In a plain cbm, ia it lets so when the con- 
sense of duty upon constitutional as well sWnctioo becomes more difficult ! " 
■auponanyotherquestions. SecMillerr. ' HooTer P. Wood, 9 Ind. 286,287; Ire- 
State, 8 Ohio St. 475; Pim b. Nicholson, Und v. Turnpike Co., 19 Ohio St 889; 
S Ohio St. 176; Mayberry o. Kelly. 1 Kan. Smith v. Speed, SO Ala. 2T6; AUor n- 
116. In the case last cited it is said : "It Auditors. 43 Mich. 76. 
)« claimed by counael for the plaintiff in * Ex parlt Randolpli, 2 Brock. 447 ; 
error, that the point raised by the Initruc- Frees p. Ford, 6 N. Y. 178, 178 ; Cumber^ 
tion it, that inferior courts and ministerial land, *c. B. R. Co. v. County Court, 10 
officer* hare no right to jud|:;e of the con- Bush, 604 ; White v. Scott, 4 Barb. 66 ; 
stitutionatity of a law passed by a legis- Mobile and Ohio Railroad Co. v. State, 29 
Uture. But is this law! If so. a court Ala. S73. 
created to interpret tbe law must disrv- 



by Google 



CB. VU.] DBCLABIKa 8TATIITB8 DSC0N8TITUTI0NAL. 197 

III. Nor will a court listen to an objection made to the consti- 
tntionality of an act by a party whose rights it does not a£fect, 
and who has therefore no interest in defeating it.^ On this 
ground it has been held that the abjection that a legislative act 
was unconstitutional, because divesting the rights of remainder- 
meti against their will, could not be successfully urged by the 
owner of the particular estate, and could only be made 
OQ behalf * of the remainder-men themselves.^ And a [* 164] 
party who has assented to bis property being taken under 
a statute cannot afterwards object that the statute is in violation 
of a provision in the constitution designed for the protection of 
private property.' The statute is assumed to be valid, until some 
one complains whose rights it invades. ** Prima facie, and upoo 
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 hia rights, that the 
objection of unconstitutionality can be presented and sustained. 
Respect for the legislature, therefore, concurs with well-estab- 
lished principles of law in the conclusion that such an act is not 
void, but voidable only ; and it follows, as a necessary legal infer- 
eitce from this position, that this ground of avoidance can be taken 
advanti^e of by those only who have a right to question the 
validity of the act, and not by strangers. To this extent only is 
it necessary to go, in order to secure and protect the rights of all 
persons gainst the unwarranted exercise of legislative power, 
and to this extent only, therefore, are courts of justice called on 
to interpose." * 

rV. Nor can a court declare a statute unconstitutional and 
void, solely on the ground of unjust and oppressive provisions, or 
because it is supposed to violate the natural, social, or political 
rights of the citizen, unless it can be shown that such injustice is 

> People V. Benwelaer, «c. R. R. Co., * Wellington, Fetitioaer, IS Pick. BT, 00. 

15 Wend. 113; a. c. 30 Am. Dec SS. And see Uiagham, £c. Turnpike Co. v. 

1 SiDclAir B. Jackion, 8 Cow. 648. See tlarfo\k Co., S Allen, 36S ; De Jamette o. 

iIm Smith V. McCiflhj, £6 Fenn. St. 869; RBynes, 23 Miii. BOO : Sinclair i>. Jackaon, 

Aatonir. Wright, 22 Grat.S67; HanbaU 8Cow. 543, 679; Heyward b. WRyor.kc 

■.DonoTon, 10 B nth, 681. ofNen York, 8 Barb. 48S ; Matter of A). 

• Emborr B. Conner, 8 N. T. 611; baay St, 11 Wend. 140; WlUlamaon v. 

Baker r. Braman, 9 Hill, 47 ; Mobile and Carlton, 6] He. 449 ; State v. Rich, 30 

Ohio Railmid Co. v. State, 29 AU. 686 ; Hiat. S93; Jonei a. Black, 48 Ala. 610. 
Ha^U p. Hew Bedfwd, 108 Haa*. 208. 



by Google 



198 COKBHTDTIONAL LDOTATIONS. [CH. Vn. 

prohibited or Buch rights guaranteed or protected bj the cODBti- 
tution. It ia true there are some reported cases, io which judges 
have been understood to intimate a doctmie 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 unreasoDableness of puttiug upon consti- 
tutions such s 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 
[" 1G5] view to * discover in it, if possible, some more just and 

reasonable legislative intent, than as laying down a rule 
by which courts would be at liberty to limit, according to their 
own judgment and sense of justice and propriety, the extent of 
legislative power in directions in which the constitution bad im- 
posed no restraint. Mr. Justice Story, in one case, in examining 
the extent of power granted by the charter of Kliode Island, 
which authorized the General Assembly to make laws in the most 
ample manner, " so as such laws, &a., be not contrary and repug- 
nant unto, but as near as may be agreeable to, the laws of Eng- 
land, consideiing 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 
usf^e as by construction of the terms in which 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 sub- 
ordination to the general laws of England, it would not lightly 
be presumed that the great principles of Magna Charta were to 
be disregarded, or that the estates of its subjects were liable to be 
taken away without trial, without notice, and without offence. 
Even if such authority could be deemed to have been confided by 
the charter to the Greneral Assembly of Rhode Island, as an exer- 
cise of transcendental sovereignty before the Revolution, it can 
scarcely be im^ined that that great event could have left tiie 
people of that State subjected to its uncontrolled and arbitrary 
exercise. That government can scarcely be deemed to be free, 
where the rights of propierty are left solely dependent upon the 
will of a legislative body, without any restraint. The fundamen- 
tal maxims of a free government 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 



by Google 



CH. TU.] DECLABINO STATUTSS UMCONSTITDTIONAL. 199 

assuming that the power to violate and disregard them — a power 
■0 repugnant to the common piinciples of justice and civil liberty 
— larked under any general grant of legislative authority, or 
ought to be implied from any general expressions of tlie wUl of 
the people. The people ought not to be presumed to part with 
rights so vital to their security and well-being, without very strong 
and direct expressions of such au intention." " We know of no case 
Id which a legislative act to transfer the property of A. to B. with- 
out his consent has ever been held a constitutional exer- 
ciite of l^slative power in any State in * the Union. On [* 166] 
the contrary, it has been constantly resisted, as incon- 
sistent with 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 confor- 
mity with the Laws of England ? Whatever he says is pertinent 
to that question ; and the considerations he su^ests are by way 
of argument to show that the power to do certain unjust and 
oppressive acts was not covered by the grant of legialative power. 
It is not intimated that if they were within the grant, they would 
be impliedly prohibited because unjust and oppressive. 

In another case, decided in the Supreme Court of New Tork, 
one of the judges, in consideriDg the rights of the city of New 
York to certain corporate property, used this language : " The 
inhabitants of the city of New York have a vested right in the 
City Hall, markets, water-works, ferries, and other public prop- 
erty, which cannot be taken from them any more than their indi- 
vidual dwellings or storehouses. Their rights, in this respect, 
rest not merely upon the amititution, but upon the great principles 

1 Wilkiiuon v. Leland,2 Pet. Q2T, 667. Teited k man of bl« freehold uid pM«ed 

Se«BlM«tuU Iitkldb^tbeMme judge in ft orer touiother, to be roid "u iguntt 

Terrett «. TAjrior, B Cnmch, 48. "It is coamon rigbt ai well u againit Magna 

riekr that itaCutea paiied againat plain Charta." In Hegentt of UniTeraity o^ 

and obrioM principle* of oommon right Wllliama, 9 Gill & J. 366; b. o. 81 Am. 

and coDimoD reaaon are abaolutel; null Dec. 72, it waa aaid that an act waa void 

and TOid, ao far aa thej are calculated U) aa oppoied to fundamental principle* of 

operate agaiiut those principles." Bam right and jnalice Inlierent in the nature 

«. IfcClawi, 1 Bay, 98. But ^e qnntion and iplrit of the aocial corapacL But tha 

in that caM waa one of conitruction ; coort had already decided that the act 

wbetber the conrt tliould give loaBUtola «■* oppoied, not 00I7 to the coottitution 

a cdulrnction which would make it oper- of the State, but to that of the United 

ate a«ainit common right and common Stateialao. See Major, &c of Baltimore 

rtMOB. In Bowman b. MiddJeton, 1 B»j, v. State, 16 Md. 878. 
Sa^ (he court held u act which <U- 



by Google 



200 COMSTITUTIONAL LIHITATIONB. [OH. VU. 

of eternal justice which lie at the foundatiOQ of all free govem- 
menU." ' The great principles of eternal justice which affected the 
particular case had been incorporated in the constitution ; and it 
therefore became uunecessaty 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 
[* 167] case, to find * that the principles of right and justice had 

been recognized and protected by the constitution, and 
that the people had not assumed to confer upon the legislature a 
power to depriire the city of rights which did not come from the con- 
stitution, but from principles antecedent to and recognized by it. 

So it is said by Moamer, Ch. J., in a Connecticut case : " With 
those judges who assert the omnipotence of the legislature in all 
cases where the constitution has not interposed an explicit re- 
straint, I cannot t^ee. 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 
questioned and too unjust to admit of vindication, I could not 
avoid considering it as a violation of the social compact, and within 
the control of the judiciary. If, for example, a law were made 
without any cause to deprive a person of his property, or to sub- 
ject him to imprisonment, who would not question its legality, 
and who would aid in carrying it into efifect ? On the other hand, 
I cannot harmonize with those who deny the power of the legis- 
lature to make laws, in any case, which, with entire justice, operate 
on antecedent legal rights. A reti-ospective law may be just and 
reasonable, and the right of the legislature to enact oue of this 
description I am not speculatist enough to question."' The cases 
here supposed of unjust and tyrannical enactments would probably 
be held not to be within the power of any legislative body in the 
Union. One of them would be clearly a bill of attainder ; the 
other, unless it was in the nature of remedial legislation, and sus- 
ceptible of being defended on that theory, would be an exercise 
of judicial power, and therefore in excess of legislative authority, 
because not included in the apportionment of power made to that 
department. No question of implied prohibition would ai-ise in 
either of these cases ; but if the grant of power had covered them, 
and there had been no express limitation, there would, as it seems 
* Qoiheti V. Btoninglon, 4 Conn. 209, 



by Google 



OB. Til.] DECLAKINO STATUTES UNCOHSTITnTIONAL. 201 

to US, be very great probability of nnpleaEant and dangerous con- 
ffict of authority if the courU were to deny validity to le^slative 
action on subjects within their control, on the assumption that the 
legislature had disregarded justice or sound policy. The moment 
a court ventures to substitute its own judgment for that of the 
legislature, in any case where the constitution has vested the leg- 
islature with power over the subject, that moment it 
enters * upon a field where it is impossible to set limits [* 168} 
to its authority, and where its discretion alone will 
measure the extent of itd interference.' 

The rule of law upon this subject appears to be, that, except 
where the constitution has imposed hmits upon the legislative 
power, it must be considered as practically absolute, whether it 
operate according to natural justice or not in any particular case. 
The courts are not the guRrdians of the rights of the people of the 
State, except as those rights are secured by some constitutional 
provision which comes within the judicial cognizance. The pro- 
tection f^ainst unwise or oppressive legislation, within constitu- 
tional bounds, is by an appeal to the justice and patriotism of the 
representatives of the people. If this fail, the people in their sov- 
ereign capacity can correct the evil ; but courts cannot assume 
their rights.* The judiciary can only arrest the execution of a 

1 " If the legiilatOTB thoald piM « law witdom and iDtegrity of public lerTRnU, 

ia ^kin and luiequiTocal language, wltlilu and their idantity with the people. Got- 

Ibe general acope of their constitutional ernmenti cannot be administered withoat 

powera, I know of do authoritj in thli committing powers in trust and confl- 

foTCTDineDt to proaonnce such an act denue." Beeba r. State, 6 Ind. 601. 626, 

Toid, merel; because, in Ibe opinion of per Stuart, J. And see Jofaiuton v. Com- 

tbe Jodicial tribunals, it was contrar/ to monweaith, 1 Bibb, 603 ; Flint Biver 

tbe ^inciptes at natural justice ; for tbis Steamboat Co. b. Foster, 6 Ga. 104 ; Sute 

Kould be Teiting in the court a latitudi- k. Eruttschnitt. 4 Her. ITS ; Walker v. 

maiimn aothority which might be abused, Cincinnati, 21 Ohio St. 14 ; Hills v. Chi- 

aad would necesaarilj lead to colliiioni cage, 80 III. 86. 

b«twe«n (he legislallTe and judicial de- * Bennett v. Bull, Baldw. 74 ; Walker 

partmenta, dangerous to the well-being of p. Cincinnati, 21 Ohio St. 14, "It tlie 

•oeietj, or at least not in harmony with act itself is within the scope of their au- 

tfae •tmetiue of our Idea* of natural gov- thority, It must stand, and we are bound 

emmenL" Per Rcgtn, J., in Common- to make it stand, if it will upon any in- 

wealtb c. HcCloskejr, 2 Rawle, S74. " All tendment It Is iu effect, not its pnrpose, 

the ooDTU can do with odioas statutes is which mast determine its validity. Notb- 

to chasten their hardness by construction, fng but a clear riolstion of the conitito- 

Such la the imperfection of the best hu- tion — a tlear nsnrpation of power pro- 

man inatitutiaiu, that, mould them as we hibited — will justify the judicial depart- 

■Bay, a large diacretion must at last be ment in pronouncing an act □( tlie legit- 

H [Miseil somewbere. The best and in latlre department unconstitutional and 

BMny eases tbe only Mcority Is la tb« void." PenasylTania B. R. Co. v. Btb- 



by Google 



202 COMBTITUTIONAL LUnTATIOSS. [OH. VUi 

statute wheD it conflicts with the constitutioD. It cannot run a 
race of opinionB npon points of r%lit, reason, aiid expediency 
with the law-making power.' Any legislative act which does 
not encraach upon the powers apportioned to the other depart- 
ments of the government, being prima facie valid, must be en- 
forced, unless restrictions upon the legislative authority can be 
pointed out in the constitution, and the case shown to come within 

them.' 
[' 169] * V. If the courts are not at liberty to declare statutes 

void because of their apparent injustice or impoUcy, neither 
can they do so because they appear to the minds of the judges to 
violate fundamental principles of republican government, unless 

let, 66 Penn. 8L IM, 189. See Weber b. 268 ; Gnbnan n. Virginia Iron Co., 6 

Beinlurd, 73 Peon. St. 870 ; ChicBgo, &c. W. r*. 23 ; Oibum b. Suiej, G W. Ya. SC ; 

R. R. Co. n. Smiih, 02 III. 268 ; People e- Ykdcj v. Taney, 5 Heisk. 363 ; BLisi d. 

AlbertioD, 5fi N. T. 60; per AUta, J., Commonwealth, 2 Litt. 00; Slate c.Aih- 

Martin v. Diz, 62 Hiii. fj2, 64 ; per Clial- ley, 1 Ark. 513 ; CampbeU b. Union B«ik. 

ns>, J., Beonett v. Boggi, Baldw. 60, 74; 7 Miu. 626; Tate's Ex'r c Bell, 1 Yerg. 

United Slatea v. Brown, 1 Deady, 666 ; 202 ; b. o. 2fi Am. Dec. 221 ; Andrewt rr. 

Commonwealth v. Hoora, 26 Gratt. 961 ; St«te, 3 Heitk. 166; a. c. 8 Am. Rep. 8; 

Danrille v. Pace, 26 Qratt. 1, 8 ; Beith* K^lroad v. Hick*, » B«i. MS ; WhitUng. 

tniller v. People, 44 Mich. 280; Muna s. ton r. Polk, 1 Hair, i J. 236; Norrii o. 

Illinola, 04 U, S, Rep. 113. Abingdon Academy,? Gill & J. 7; Harri- 

> PerkiM, J., in Madiion t lodUn- nn t>. State, 22 Md. 46B; State v. Lytca, 

apolii Railroad Co. v. Whileneck. 8 Ind. 1 McCord, 288 ; Myen v. EnglUh, 9 CaL 

217; Ball p. Read, 13 Gralt 78, perl*!, 841; Ex pant Newm.n, 9 Cal. 602; Ho- 

J. So in Canada It i> held that an act bart v. Superviton, 17 Cal. 23 ; Crenahaw 

within the icape of le^latlre power can- b. Slate RirerCo., S lUnd. 245; Lewii c. 

not be objected to ai contrary to reaaon Webb, 8 Me. 926; Durliam r. LewUton, 

and jostlce. Re Goodhne, 19 Ch> 4 Me. 140; Lunt'* Caae, 6 Me. 412; Scott 

(Ont.). 866 ; Toronto, «c. R Co. v. v. Smart'i Ei'ra, 1 Mich. 2S6 ; WillUma 

Crookahaok, 4 Q. B. (Ont.) 818. t>. Detroit, 2 Mich. 660; Tylers. People, 

* Sill f. Village or Coming, 16 N. T. 6 Mich. S20; Weltner v. Bnnbory, SO 

297 ; Variuk v. Smith, 6 Paige, 136 ; Cocb- Mich. 201 ; Cotton v. Commlaaioner* of 

ran e. Van Sarlay, 20 Wend. 866 ; Morria Leon County, d Fla. 610 ; State b. Robin- 

B. People, 8 DenJn, 381 ; Wynehamer b. ion, 1 Kan. 17 ; Santo v. State. 2 Iot«, 

People, 13 N. T. S78 ; People n. Superrii- 165 ; Mornion v. Springer, 16 Iowa, 304 ; 

on of Orange, 17 N. Y. 236 ; Dow v. Nor- Sloddart v. Smith. 6 Binn. 855 ; Moore b. 

ri>, 4 N. H. 16 ; Derby Tornpike Co. b. Houaton, 3 S. & R. 169 ; Braddee v. Brown- 

Parki,10Conn.622,643; Hartford Bridge field, 2 W. & S. 271 ; Harvey B.Thooiaa. 

Co. D. Union Ferry Co., 29 Conn. 210; 10Watta,63; Commonwealth v.l/laxwM. 

Holden V. Jamei, 11 Man. B96; Adam«D. 27 Penn. St. 444; Lewii'i Appeal, 67 

Howe, 14Mau.310;a. c. 7 Am. Dec.2ia; Penn. St. 15S; Butler't Appeal, 78 Penn. 

Norwich b. County Comml»ionert, 18 St. 448; Carey ir. Giles, Q Ga. 253; Macon 

Pick. 60; Dawion v. Sharer, 1 Blackf. and Weitern Railroad Co. e. DbtI*, 18 Oa. 

206 ; Beaoch&mp c. Stale, 6 Blackf. 299 ; 68 ; Franklin Bridge Co. r. Wood, 14 Ga. 

Doo u. DongUu, 8 Blackf. 10; Maice v. 80; Botton v. Cummini, 16 Qa. 102; Vm 

Sute, 4 Ind. 342; Slocking v. State, Borne o. DorraiKw, 2 Dall 809 ; Calderr. 

7 Ind. 827; Beebe e. State. 6 Ind. Bull, 8 Ball. 886; Cooper r. Telfair, 4 

601 ; Newland v. Marsh, 19 111. 376, 384 ; DalL 14 ; Fletcher r. Pack, e Craneli. 

Chicago, Jbc B. B. Co. K. Smith, 62 III. 87. 



by Google 



OH. Vn.] DECIUAEIHQ Bl'ATDTEB UNCOK8TITUTIONAL. 208 

it shall be found that those principles are placed beyond legisla- 
tive eDcroachment by the constitution. The principles of repulr 
licaD gOTernment are not a set of inflexible rules, vital and active 
in the constitution, though uoexpressed, but they are subject to 
variation and modification &om motives of policy and public 
necessity ; and it is only in those particulars 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 constitutioD in such form as to make them definite 
roles of action under all circumstances. It is undoubtedly a 
maxim of republican government, as we understand it, that taxa- 
tion and representation should be inseparable ; but where the 
l^islatare 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 
and very imperfect sense only, since the * representation [* 170j 
of the h>cality taxed is but slight in the body imposing 
the tax, and the burden may be imposed, not only against the 
protest of the local representative, but against tiie general opposi- 
tion of the municipality. The property of women is taxable, 
notwithstanding they ore not allowed a voice in choosing repre- 
sentatives.' The maxim ia not entirely lost sight of in such cases, 
but its application in the particular case, and the determination 
bow far it can property and justly be made to yield to considera- 
tions 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 
upon legislative authority.^ It is also a maxim of republican gov- 
ernment that local concerns shall be managed in the local dis- 

1 Wheel«rc.W«U,6AlleD,6G8:Smi[h inexpedieDt, u politic or Impoltttc. Con- 

>. Mwoo, 20 Ark. 17. lidentioni of th*t lorl must in general b« 

* "TbcreueondoubtedlrflinduneDtal addreiwd to the le^tUture. Quntiona 
principle* of monlitj and Jiutice which of policy there are concluded here." Clmt, 
BO le^lature ii at liberty to disregard, Ch. J., in Licenie Tai Owea, 5 Wril. 
but it i« eqnallj undoubted that no court, 462, 469. " All mere queitiona of expe- 
Mcept ia theclearett caiei, can properly dienc;, and all questioni respecting the 
tmpnte the diiregsrd of those principle! ju«t opemtion of the law within Che limila 
to the legitUtnre. . . . This court can prescribed by the constitution, were set- 
know nothing of public policy except tied by the lefpslatnre when it was en- 
from the consUlntion and the laws, and acted," Ladd, J., in Perry v. Keene. 60 
tbe coarse of administration and decision. N. H. 514, 6S0. And see remarks of Sgan, 
It has DO legislatire powers. It cannot Ch. J., in Attorney General v. CbicmgOt 
uwod or iDodilPr auf legislatiTe acts. It Ac. R. B. Co., 85 Wis. 426, 660. 
csnoot examine questions as expedient or 



b, Google 



S04 ooKSTrnjTioNAi, umitations. [ch. vn. 

tricts, which shall choose their own ndministrBtive and police 
officeis, and establish for themselves police regulations ; but this 
mazim is subject to such exceptions as the legislative power of 
the State shall see fit to make ; and when made, it must be pre- 
sumed that the public interest, convenience, and protection are 
subserved thereby.^ The State may interfere to establish new 
regulations against the will of the local constituency ; and if it 
shall think proper In any case to assume to itself those powers of 
local police which should be executed by the people immediately 
concerned, we must suppose it has been done because the local 
administration has proved imperfect and inefficient, and a regard 
to the general well-being has demanded the change. In these 
eases the maxims which have prevailed in the government address 
themselves to the wisdom of the legislature, and to adhere to them 
as far as possible is doubtless to keep in the path of wisdom ; 
but they do not constitute restrictions so as to warrant the other 
departments in ti'eating the exceptions which are made as uncon- 
stitutional.' 

1 People V. Draper, 16 N. T. S32. Sm incb only u iu witdoni iball prcKiJlM 

pc^, pp. 'ISl, 'm. within the conititutLontd limit. Tbej 

* Id People v. Mahanej, 18 Mich. 4B1, were repretenled in ttiat body when tlie 

600, where the MetropoUta.n Police Act of pretent police board were ftppointed bj 

Detroit wu claimed to be unconttitution- il, and the governor, who is lierenfier to 

kl OD tarioiu groundB, the court taj : "Be- fill vncanciei, will be choeen by the State 

lidea the tpeciflc objection* made to the at Urge, including their dty. There ia 

act at oppoied to tlie proviiiona of tlie notliing in the mazim that taxation aod 

conBlitnlion, the counsel for respondent representation go together which requires 

attacks it on ' genentl printiples,' and that the body paying the tax shall aloM 

especially because riolsting fundamental be consulted in its assessment; and it 

principlesofourBysteni, thatgovemments there were, we should find it rlolaied m 

exist by the consent of the governed, and erery turn in our ayitem. The State 

that toialion and representation go to- legislature not only has a control in this 

gether. The taxation under the act, it Is respect over inferior muncipalities, which 

said, il really in the hands of a police it exercises by general laws, but it some- 

board. a body in the choice of which the tbnes finds it necessary to inlerpoae it* 

people of Detroit have no voice. This power in special cases to prevent unjust 

argument is one wlilch might be prassed or burdensome Uxation, as well as to 

upon the legislative department with compel the performance of ft clear duty, 

great force, if it were true in point of The constitution itself, by one of the 

fret Bat as the people of Detroit are cUnses referred to, requires the legisla- 

really represented throughout, the difB- ture to exercise its control over tlie taxft- 

cutty suggested can hardly be regarded tion of municipal corporations, by re- 

as fundamental. They were represented striding It to what that body may regard 

in the legislature which passed the act, as proper bounds. And monldpal bodies 

and had the same proportionate voice are frequently compelled most unwillingly 

there with the other municipalities in the to levy taites for the payment of claims. 

State, all of which receive firam that body by the Judgments or mandates of courts 

tbair powers of local goTemment, and In which tbeli represestadon is qnlte as 



by Google 



CH. Vn.] BECLABIlfG STATDTES UNCONSTITUTIONAL. 205 

• VI. Nor are the courts at liberty to declare an act [" 171] 
TOid, because in their opinion it is opposed to a gpirit 
sapposed to pervade the constitution, but not expressed in words. 
"When the fundamental law has not limited, either in terms or 
by necessary implication, the general powers conferred upon the 
legislature, we cannot declare a limitation under the notion of 
having discovered something in the gpirit of the constitution 
which is not even mentioned in the instrument." ^ " It is difiS* 
cult," says Mr. Senator Verplanct, "upon any general principles, 
to limit the omnipotence of the sovereign l^islative power by 
judicial interposition, except so far as the express words of a 
written constitution give that authority. There are indeed many 
di^a and some great authorities holding that acts contrary to the 
first principles of right are void. The principle is un- 
questionably • sound as the governing rule of a legislature [* 172] 
ID relation to its own acts, or even those of a preceding 
legislature. It aluo affords a safe rule of construction for courts, 
in the interpretation of laws admitting of any doubtful construc- 
tion, to presume that the legislature could not have intended an 
unequal and unjust operation of its statutes. Such a construc- 
tion ought never to he given to legislative language if it be sus- 
ceptible of any other more conformable to justice; but if the 
words be positive and without ambiguity, I can find no authority 
for a court to vacate or repeal a statute on that ground alone. 
Bat it is only in express constitutional provisions, limiting legis- 
lative power and controlling the temporary will of a majority, by 
s permanent and paramount law, settled by the deliberate wisdom 
of the nation, that I can find a safe and solid ground for the 
anthority of courts of justice to declare void any legislative enact- 
ment. Any assumption of authority beyond this would be to 
place in the bands of the judiciary powers too great and too un- 
defined either for ita own security or the protection of private 

mDoU M (bat of the people ot Detroit in lee Wynehamer v. People, 13 N. T. 878, 

this police board. It cannot tliereTore be per Sddea. 3. ; Benion v. Mafor, &e. of 

•aid tbat the maxima refeired to hare Albanr, 24 Barb. 24B <( n^. ; Baltimore n. 

be«ii entirclr diiregarded bj the lesliia- State,'l5 Md. ST6; People c. Draper, 16 

tore in the pawage of this act. But aa N. T. SS2; White e. Stamford, S7 Conn. 

conmel do not claim that, in «> &r aa 578. 

Utej bare been departed from, the conitl- > People e. Hiber, 24 Wend. 316. ZSO; 

tstioo ha* been violated, we cannot, witli State c.Staten.e Cold. 238; Walker cCin. 

penprictj, be aaked to declare the act donaU, 21 Ohio St H ; People v. Bucket, 

TotdODBnytachguieralotaectlDii." And fiCoLUC 



by Google 



206 CONSTITUTIONAL LIMITATIOIIB. [OH. TU. 

rights. It is therefore a most gntiiyiug circamstance to the 
friends of regulated liberty, that in every chaage in their consti- 
tutional polity which has yet taken place here, whilst political 
power has been more widely diffused among the people, stronger 
and better-defined gnards have been given to the rights of prop- 
erty." And after quoting certain express limitations, he pro- 
ceeds : " Believing that we are to rely upon these and similar 
provisions as the best safeguards of our rights, as well as the 
safest authorities for judicial direction, I cannot bring myself to 
approve of the power of courts to annul any law solemnly passed, 
either on an assumed ground of its being contrary to natural 
equity, oi from a broad, loose, and vague interpretation of a con- 
stitutional provision beyond its natural and obviotis 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 Great Britain this complete power rests 
in the Parliament ; in the American States it resides in the people 

themselves as an organized body politio. But the people, 
[• 173] by " creating the Constitutiou of the United States, have 

delegated this power as to certain subjects, and under 
certain restrictions to the Congress of the Union ; and that por- 
tion 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 
State constitution, a legislative department upon which they con- 
fer 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, therefore, the Parliament of Britain possesses completely 
the absolute and uncontrolled power of legislation, the legislative 
bodies of the American States possess the same power, except, 
firat, as it may have been limited by the Constitution of the United 
States ; and, tecond, as it may have been limited by the constitu- 
tion of the State. A legislative act cannot, therefore, be declared 
void, unless its condict with one of these two instruments can be 
pointed out.^ 

» Coch™nD.VanSoriar,20Wend.a86. 18 N. T. 878, per Coi**)dt, J.; 18 N. T. 

381, SSa See ilin People v. Oallagher. 4 US, per StUa. J. ; IS N. T. 477, per 

Mich. 244; Bunion b. Hikjor, Ac. of Al- Jahnan,]. 

b«nr, 24 Barb. 248; Orwit v. ConrUr, « People v. New York Central lUfl- 

24 Bub. 28S i W;n>«b*>neT «■ People, ima Co., 84 Bub. 138; GentiT d. Qrit- 



by Google 



CH. Vn.] DKCLABIHG 8TATDTE3 DHCONSTITUTIONAL. 207 

It is to be borne in mind, however, that there is a broad dif- 
ference between the Constitution of the United States and the 
oouBtitatioDS of the States as regards the powers which may be 
exerdsed onder them. The government of the United States 
is ooe of enumerated powers ; the govemmento of the States are 
possessed of all the general powers of legislation. When a law 
of Congress i^ assailed as void, we look in the national Constitu- 
tion to see if the grant of specified powers is broad enough to em- 
brace it ; but when a State law is attacked on the same ground, 
it is presumably valid in any case, and this pi-esumption is a con- 
climve 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 grant* of legislative 
power, but in the constitution of the State to ascertun if any 
limitationa have been imposed upon the complete power with 
which the legislative department of the State was vested in its 
creation. Congress can pass no laws but such as the Constitution 
authorizes either expressly or by clear implication ; while the 
State legislature has jurisdiction of all subjects on which its 1^- 
islaliou is not prohibited.' '* The law-making power of 
tfae * State," it is said in one case, " recognizes no re- [* 174] 
straints, and is bound by none, exoept such as are im- 
posed by the Conetitation. That instrument has been aptly 
termed a legislative act by the people themselves in their sover- 
eign capacity, and is therefore the paramount law. Its object is 
not to grant legislative power, but to confine and restrain it. 
Without the constitutional limitations, the power to make laws 
would be absolute. These limitations are created and imposed 
by express words, or arise by necessary implication. The leading 
feature of the constitution is the separation and distribution of 
the powers of the government. It takes care to separate the ex- 
ecndve, legislative, and judicial powers, and to define their limits. 



ttK 27 Tex. «l ; DaiiTine p. Fmw, 26 24 N. T. 49T. G04 ; People v. To^nbee. 8 

Gnt. 1; s. c. 18 Am. Rep. 663; DstIb k. Pnrk. Cr. R. 49(1; Sute o. Guiierrez. 15 

8utg,3U>,877. And lee the chsi cited, L«. Ana. 190; Walpole i-. Elliott. IB Ind 

ante, p. • 108, note S. 268 ; Smith t. Judge, IT CrI. 647 ; Com- 

> Sill e. Village of ConiinK. 15 N. T. mouirMtth v. Hartman, 17 Penn. SL 118; 

297 ; Penple c. Snperviaora of Orange, 27 Kirhj v. Bhaw, ID Penn. St. 356 ; Weitter 

Bart. 676; People r. Gallasher. 4 Hich. v. Hade, 52 Penn. St 474; DanTille v. 

M4: Sean v. CoUrell. 6 Ulch. 260; Peo- Pace, 26 Qnt. 1, 9; a. o. 18 Am. Rep. 

pla r. New York Central Railroad Co., 668. 



by Google 



208 CONSTITUTIONAL LIMITATIONS. [CH. VH. 

The execative can do no legiaUtive act, nor the legislature any 
executive act, and neither cun exercise judicial authority." ^ 

It does not follow, however, that in every case the coarta, 
before they can set aside a law as invalid, must be able to find in 
the constitution some specific inhibition which has been disre- 
garded, or some express command which has been disobeyed.' 
Prohibitions are only important where they are la the na- 
ture of exceptions to a general grant of power; and if the 
authority to do an act has not been granted by the sovereign to 
its representative, it cannot be necessary to prohibit its being 
done. If in one depaitment was vested the whole power of the 
government, it might be essential for the people, in the instra- 
ment delegating t^is complete authority, to make careful and 
particular exception of all those cases which it was intended to 
exclude from its c(^nizance ; for without such exception the 
government might do whatever the people themselves, when met 
in their sovereign capacity, would have power to do. But when 
only the legislative power is delegated to one department, and the 
judicial to another, it is not important that the one should be 
expressly forbidden to try causes, or the other to make laws. The 
assumption of judicial power by the legislature in such a case is 
unconstitutional, because, though not expressly forbid- 
[* 175] den, it is nevertheless * inconsistent with the provisiona 
whitjh have conferred upon another department the power 
the legislature is seeking to exercise.^ And for similar reasons a 
legislative act which should undertake to make a judge the arbiter 
in his own controversies would be void, because, though in form 
a provision for the exercise of judicial power, in substance it 
would be the creation of an arbitrary and irresponsible authority, 
neither legislative, executive, nor judicial, aud wholly unknown 
to constitutional government.^ It could not be necessary to for- 
bid the judiciary to render judgmeut without suffering the party 
to make defence ; because it is implied in judicial authority that 
there shall be a hearing before condemnation.^ Taxation cannot 

I Bill V. Corning, 16 N. T. 207, BOS. Ohio fonnd itMlf under th« neceMitr of 

■ A retnftrkftble case of evMlon to dectarmg that that which wm forbidden 

aTO[d the purpose of the conatltution, and hy the coDBtitntion could do more be done 

■till keep irithin ita termi, wai conildered indirectly than directly. 

In People V. Alliertion, 65 N. T. 60. In ■ Anlt, pp. •87-*114, and caaet cited. 

Taylor B. Comniiiiionen of Rou County, ' Poit, pp, *410-*4IS, and caiea cited. 

2« Oliio St. 22, the Supreme Court of * PtH, pp. "853-* SM. On tbia lub- 



by Google 



OH. Vn.] DECLAKING STATUTES DNC0N8TITUTIONAL. 209 

be arbitrary, l>ecause its very definition includes apportionment, 
nor can it be for 8 purpose not public, because that would be a 
ooDtradiction in terma.^ The right of local self-govemment can- 
not be taken away, because all out constitutionij assume its 
continuance as the undoubted right of the people, and as an in- 
separable incident to republican government.' The bills of rights 
in the American constitutions forbid that parties shall be deprived 
of property except by the law of the land; but if the prohibition 
had been omitted, a legislative enactment to pass one man's prop- 
erty over to another would nevertheless be void. If the act pro- 
ceeded upon the assumption that such other person was justly 
eotitled to the estate, and therefore it was transferred, it would 
be void, because judicial in its nature ; and if it proceeded with- 
out reasons, it would be equally void, as neither legislabive nor 
judicial, but a mere arbitrary 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 constitution and 
void. It is assuming a power which the people, if they have not 
granted it at all, have reserved to themselves. The maxims of 
Hagua Charts and the common law are the interpreters of con- 
stitutional grants of power, and those acts which by those maxims 
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 those departments. 
The Parliament of Crreat Britain, indeed, as possessing 
the sovereignty • of the country, has the power to dis- [• 176] 
T^ard fundamental principles, and pass arbitrary and 

Jcct ia general, reference f* made to ered an tmirenil and randamental prop- 
thoM TCry coraptete recent works, Bipe- o»itlon in e»ery well-regnlaleil and prop- 
low OD Eitoppel, and Freeman on Judg- erly adminixered goTemmenl, whether 
■•eota. embodied in a conititutional form or not, 

' Pot, ob. 14. And lee Cnrtii v. that prirate property cannot be taken 

■miipple, 24 Wis. 860 ; Tyion r. School for strictly priTste purposes at all, nor 

Directors, 61 Penn. St. 9; Freeland e. for public without a just compensMion ; 

BkMingi, 10 Allen, 570; Opinions of «nd that the oblipillon of contracts 

Jndices, 68 Me. 500 ; People f. Batuhel- cannot be abrogated or essentlaliy im- 

lor, 63 N. T. 128 ; I«well v. Boston, 111 paired. Tliese »nd other vested rights 

HaM. 454. of the dliien are held sacred and inTJola- 

" People V. Mayor, Ac. of Chicago, 61 We, eren against the plenitude of power 

DL IT ; People v. Hurlbut, 24 Mich. 44, of the legislaiive department" Neltm, 

■ Bowman e. MiHdleton. 1 Bay. 262 ; J., in People v. Morris, 18 Wend. 826. 

Wllkinioo B. LeUnd. 2 PeL 627 ; Terrett 828. See Bank o( Michigan t.. WUlUaii. 

r. T«ylor, 9 Cranch, «; Errine's Ap- 6 Wend. 478. 
pMd,ieFeim.8t.266. "It lanowcotuld- 
U 



by Google 



210 CONSTrrUTIOKAL LIMITATIONS. [OH. VH. 

unjust enactments; but it cannot do this rightfully, and it has 
the power to do so simply because there is no written constitution 
from which ita authority springs or on which it depends, and by 
which the courts can test the vahdity of its declared will. The 
rules which confine the discretion of Pariiament within the an- 
cient landmarks are rules for the oonstiuction of the powers of 
the Ameiican legiulatures ; and however proper and prudent it 
may be expresaly to prohibit those things which are not understood 
to be within tJie proper attributes of l^slative power, such pro- 
hibition can never be regarded as essential, when the extent of the 
power apportioned to the legislative department is found upon 
examination not to be broad enough to cover the obnoxious 
authority. The absence of such prohibition cannot, by implica- 
tdon, confer power. 

Nor, where fundamental rights are declared by the constitu- 
tiou, ia it necessary at the same time to prohibit the legislature, 
in express terms, from taking them away. The declaration is 
itself a prohibition, and is inserted in the constitution for the ex- 
press purpose of operating as n restriction upon legislative power.' 
Many things, indeed, which are contained in the bills of rights to 
be found in the American constitutioDS, are not, and fi-om the 
very nature of the case cannot be, so certain and definite in char- 
acter as to form rules for judicial decisions ; and they are declared 
rather as guides to the legislative judgment than as marking an 
absolute limitation of power. The nature of the declaration will 
generally enable us to determine without difficulty whether it is 
the one thing or the other. If it is declared that all men are 
free, and no man can be slave to another, a definite and certain 
rule of action is laid down, which the courts can administer ; but 
if it be said that " the blessings of a free government can only be 
maintained by a firm adherence to justice, moderation, temper- 
ance, frugality, and virtue," we should not be likely to commit 
Uie mistake of supposing that this declaration would anlhorize 
the courts to substitute their own view of justice for that which 
may have impelled the legislature to pass a particular law, or 
to inquire into the moderation, temperance, frugality, and vir- 
tue of its members, with a view to set aside their action, if it 
should appear to have been infiuenced by the opposite qualities. 

1 Beebe c. Bute, S Ind. GDI. This principle ii Terj oftea Mted npoa when not 
exprcMlj' dedued. 



by Google 



CH. VII.3 DBCLABINO BTATTJTB8 USCOSBTITUTIOKAL. 211 

It is plain that * what in the one case is a rule, in the [* 177] 

other is an admonition addressed to the judgment and 

the conscience of all persons in authority, as well as of the people 

themselves. 

So the fonns prescribed for legislative action are in the natore 
of limitations upon its authority. The constitutional proviaions 
which establish them are equivalent to a declaration that the leg- 
islative 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.' 



Statutes uncoTiititutional in Part. 

It will sometimes be found that an act of the legislature is 
opposed in some of its provisions to the constitution, while oth- 
ers, standing by themselves, would be unobjectionable. So the 
forms observed in passing it may be sufficient for some of the 
purposes sought to be accomplished by it, but insufficient for 
others. In any such case the portion which conflicts with the 
constitution, or in r^ard to which the necessary conditions have 
not been observed, mast be treated as a nullity. Whether the 
other parts of the statute must also be adjudged void because of 
the association must depend upon & consideration of the object of 
the law, and in what manner and to what extent the unconstita- 
tional portion affects the remainder. A statute, it has been said, 
is judicially held to be unconstitutional, because it is not within 
the scope of legislative authority ; it may either propose to ac- 
complish something prohibited by the constitution, or to accom- 
plish some lawful, and even laudable object, by means repugnant 
to the Constitution of the United States or of the State.* A stat- 
ute may contain some such provisions, and yet the same act, hav- 
ing received the sanction of all branches of the legislature, and 
being in the form of law, may contain other useful and salutary 
provisions, not obnoxious to any just constitutional exception. 
It would be inconsistent with all just principles of constitutional 

> See oitfe, p. * 130 tt teg. ckVM It U tnconilitent with wme prOTt- 

* Coumonwe^th v. Chpn ^ Ot%j, iton of Hie federal or State conttitntjon." 

07. " A law tlwt it nncoDttltotional li Wmlaorlk, J., Id Commonwealth s. Hai- 

■o beeaiue It fi either an aMnmption of well, 27 Fenn. 8t 4M, 460. 
power not legiilatl*e in ita nature, dt be- 



by GoOglc 



212 CONSTITimOKAL LIMITATtOtilB. [CH. VII. 

law to adjudge these enactments void because they are associated 
in the same act, but not connected with or dependent on others 
which are unconstitutional.' Where, therefore, a part of 
[* 178] a " statute is unconstitutional, that fact does not author- 
ize the courts to declare the remainder void also, unless 
all the provisions are connected in Bubject>matter, depending on 
each other, operating tt^ether for the same purpose, or otherwise 
so connected together in meaning, that it cannot be presumed the 
legislature would have passed the one without the other.' The 
constitutional and unconstitutional provisions may even be con- 
tained in the same section, and yet be perfectly distinct and sep- 
arable, so that the first may stand though the last fall. The point 
is not whether they are contained in the same section ; for the 
distribution into sections is purely artificial ; but whether they 
are essentially and inseparably connected in substance,^ If, when 
the unconstitutional portion is stricken out, that which remains 
is complete in itself, and capable of being executed in accordance 
with the apparent legislative intent, wholly independent of that 
which was rejected, it must be sustained. The difficulty is in 

' Commonwealth e. Clapp, 6 Gray, 97. State, 7 Md. ISl; State c. CommiMionen 

See, to the lame effect, Fisher i>. McGirr, of Baltimore. 29 Md. 621 ; Ha(Knto<rn r. 

1 Graj, 1; Warren v. Mafor, &c. of Decliert, 82 Md. 369 ; Berr; d. Baitimore, 

Charleslown, 2 Gray, 84; WeUingloD, &c. R.Il.Co,41 Md. 446; e. c. 20 Am. 

Petitioner, 16 Pick. S7; Commonwealth Rep. 69; SUie n. Clarke, 64 Ho. 17; 

v. HilcUingi, G Gray, 482 ; Common- Lowndei Co. v. Hunter, 49 Ala. 607 ; bom 

wealth V. Pomeroy, 6 Gra;, 486; State i>. v. MiiiiBsippi, &c R. R Co., 38 Miii. 300; 

Copeland, S R. L 33 ; Slate n. Snow, 8 Bank of Hamillon v. Dudlej'a I..eMee, 

R, 1 64 ; Anailrang v. Jacksoi), 1 Blackf, 2 Pet. 492. " To tlie extent of the colU- 

874 ; Clark d. Ellie, 2 BInckr. 8 ; McCul- gion and repugnancy, the Uw of the 

loch c. State, 11 Ind. 424; People v. Stale must yield; and to that extent, and 

Hill, 7 Cal. 97 ; Latlirop b. Mllli, 10 Cal. no flirtlier, it ii rendered hy »nch repug- 

613; Rood v. McCargar, 49 Cat. 117; nancy inoperative and void." Common- 

Supervisors of Knox Co. >: DaTia, 63 lit. wealth i*. Kimball. 24 Pick. 36», 961, per 

406 ; Myeri u. People, 67 I!l. 608 ; Thom- Shav, Cli. J. ; Sorrie r. Boaton, 4 Met 282 ; 

■on V. Grand Gulf Railroad Co., 3 Bow. Eckhart e. State, 5 W. Va. 616. 
(Mill.) 210; Campbell u. Union Bank, 7 * Commonwealth i>. Hiteliinga, 5 Gray, 

Miaa. 625; Mobile &. Ohio Railroad Co. 482. See People v. Bnggt, 60 N. T. 66.1. 

D. State, 29 Ala. 678 ; South t N. Ata. Although a proviso is ineffectual because 

R. R. Co. V. Morrii, 66 Ala. 198 ; Santo v. unconititutlonal, It cannot be diaregarded 

Slate, 2 Iowa, 166 ; State v. Cox, 3 Eng, when the intention of the legislature is in 

430; Mayor, &c. of Savannah d. State, 4 question. Commonwealtli d. Fotta, 79 

Ga. 26; Exchange Bank i-, Hines, 3 Ohio Penn. St. 164. 

St. 1 ; Robinson v. Bank of Darien, 18 ' Commonwealth v. Hitching*, 5 Gny. 

Ga. 66 ; Slate v. Wheeler, 26 Conn. 290 ; 482 : Willard n. I'eople, 6 III. 461 ; Eella 

People V. Lawrence, 86 Barb. 177; Wil- v. People, 6 111.498; Robinson v. Bidwell, 

liams D. Payson, 14 La. Ann. 7 ; Ely v. 22 Cal. 879 ; State r. Easterbrook, S Ifev. 

ThompBon, S A. K. Manh. 70 ; Davis b. 173 ; Uagerttown d. Decberl, S2 Ud. 869. 



by Google 



CH. Vn.] DBCLAEINQ BTATDTES DNCOHSTITDTIONAL. 213 

determining whether the good and bad parta of the statute are 
capable of being separated within the meaning of this rule. If 
a 8tatat« 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 purpoee is to accomplish a single object 
only, and some of its provisions are void, the whole must fail 
Qnless sufficient remains to effect the object without the aid of 
the invalid portioD.' And if tbej are so mutually con- 
oected with and * dependent on each other, as condi- [* 179] 
tioDS, considerations, or compensations for each other, as 
to warrant the belief that the legislature intended them as a 
whole, and if all could not be carried into effect the legidlature 
would not pass the residue independently, then if some parts are 

1 Santo r. State, 2 Iowa, 165. Bat whereitWM held compelentto conitrnea 

pcrtupa the doctrine of suatkining one part of an aut held to be Tnlid bj another 

fan of » »Uiute when tlie other i( void part adjudged QOCDnititulional, though 

wai carried to an extreme in thia caae. the court coniiilered it "quite probable" 

A prohibitorj liquor law bad been paued that if the tegiilature had luppoaed ihe7 

which wtM not objectionable on conitilo- were without power to adopt the roid 

tional gronndt, eicept that the laat aec- part of the act, the^ would have made 

tion provided that " the quedion of pro- an euentiallj different provialan by the 

hibiiing the lale and manufacture ot other. See also People u. Bull, 4S N. Y. 

intoxicating liquor" ihonld be aubmitted G7, where part of an act waa tustained 

to the electora of the State, and If it wliich probably would not have been 

■hould appear " that a majority of the adopted by Ibe legislature separately. It 

TOlet cast aa aforesaid, npoo aaid ques- must be obTious in any caae where part 

Hon of prohibition, iball be fbr the pro- of an act ia set aalde as uncoustitulional, 

bibitory Ibqnor law, then this act aliall that It I* unsafe to indulge in the same 

takeeffect on theflnt day of July, 1S66." extreme presumptions in support o{ the 

The court held this to be an attempt by remainder that are allowable in support 

tbe IeK>alatare to shift the exercise of of a complete aut when some cause of 

legislatiTe power fhim themselves to the invalidity is suggested to the whole of it. 

people, and therefore void; but they also In the latter caae, we know the legisla- 

bcld that tha reoMltider of tbe act «ra* tnre designed tlie whole act to hare eOeot, 

complete without this section, and must and we ahould euetain it if possible: in 

therefore be sustained on Ibe rule above the former, we do not know that the leg- 

fiven. Tbe reasoning of the eonrt by islature would have been willing that a 

which they are brought to thia conclusion part ot the act should be sustained if 

is ingenioBi ; hut one cannot avoid feel- the remainder were held void, and there 

fa^.especialljafterreadinit thedisMt)llng ii generally a presamption more or lesa 

opinion of Chief Justice ]Vright, that by strong to the contrary. While, there- 

tbede«)sion the court gave effect to an act fore, in the one caae the act should be 

whichthetegislatnredid not design ihoQld lostalned unless the invalidity ii clear, in 

takeefTect aalet the result of Iheuncon- the other the whole should fall unless it is 

•litntlonal sabinission to the people was manifest the portion not opposed to the 

in ita hTor. Sec alio Weir v. Cram. 37 constitution can stand by Itself, and that 

Iowa, 649. For a similar ruling, see Maize in the le^lative Intent It was not to be 

r. State, 4 Ind. 842; overruled In Mesh- controlled or modified in its conati 

■leter r. Bute, U Ind. 4ffi. And see tion and effect by the part which < 

8tat« V. DombBQgh, SO Ohio St. 167, ti^ 



by Google 



214 coKSTmmoNAi. liuitations. [oh. til 

□noonstitutioDal, all the proTisious which are thus dependent, 
conditioDal, or connected must fall with them.' 

It has acoordingly been held where a statute eahmitted to the 
voters of a county the question of the lemoval of tfaeii county 
seat, and one section impoaed the forfeiture of certain vested 
rights in case the vote was gainst the removal, that this portion 
of the act being void, the whole must fall, inasmuch as the whole 
was submitted to the electors collectively, and the threatened 
forfeiture would naturally affect the result of the vote.' 

And, where a statute annexed to the city of Racine certmn 
lands previously in the township of Racine, bat contained an 
express provision that the lauds so annexed should be taxed at a 
different and less rate than other lands in the city ; the latter 
provision being held unconstitutional, it was also held that the 
whole statute must fail, inasmuch as such provision was clearly 
intended as a compensation for the annexation.' 

And where a statute, in order to obtain a jury of »x 
[* 180] persons, * provided for the summoning of twelve jurors, 
from whom six were to be chosen and sworn, and under 
the constitution the jury must consist of twelve, it was held that 
the provision for reducing the number to six could not be 
rejected and the statute sustained, inasmuch as this would be 
giving to it a construction and effect different &om that the legis- 
lature designed ; and would deprive the parties of the means of 
obtaining impartial jurors which the statute had intended to give.* 

On the other hand, — to illustrate how intimately the valid and 
invalid portions of a statute may be associated, — a section of the 
criminal code of Illinois provided that " if any person shall 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 Terri- 
tory, or district, within the limits and under the jurisdiction of 
the United States, or shall in any wise hinder or prevent the 

1 Wurm n. Mkyor, Ac. of Cbarleftown, County, 6 Ohio St. 497. And tee Jonei d. 

8 <3t%j, 64; State n. Commiuionen of Robbio*, 8 Gray, 399; H<Hiroe ir. Colllni, 
Perty Conaty, G Ohio St. 407 ; SUtuon IT Ohio St. 666, 684 ; Tftylor r, CotDmi^ 
V. lUcine, 18 Wii. 398; Allen County aionen of Rom County, 2S Ohio 61.23, S4. 
CoromiMionen t>. Silren, 23 Ind. 491 ; ■ SlaoKHi d. Racine, 18 Wi*. 898, (bl- 
Eukliart v. State, 5 W. Ta. 616 ; Allen d. lowed in Bute d. Doniman, 38 WU. 641. 
Loui*iana,l08U.8.S0; lillmanv.Coche, « Campaa v. Detroit, 14 Hich. 360. 

9 Bai. 429. See Commonwealth v. Potti,79 Penn. St. 

* State n. Comnbtioiien of Feiry 101. 



byCoogle 



Ca. VII.} DBCLABIMG STATUTES tJKCOMSTlTUXIOHAL. 215 

lawful owner or ownerg of such slaves or servants from retaking 
them in a lawful manner, every person 8o 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 iu Prigg v. Pennsylvania,^ yet that the first portioD, being 
a police regulation for the preservation of order in the State, 
and important to its well-being, and capable of beiog enforced 
without reference to the rest, was not affected by the invalidi^ 
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 puo- 
isbment of offences, which should endeavor to reach, by its retro- 
active operatioD, acts before committed, as well as to prescribe a 
mle of conduct for the citizen in the future, would he void so for 
as it was retrospective ; but such invalidity would not affect the 
operation of the law in regard to the cases which were within the 
l^islative control. A law might he void as violatiog the obliga- 
tion of existing contracts, but valid as to all contracts which 
should be entered ioto 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 unconstitutional law must 
operate as &r as it can,* and it will not be held invalid 
OD the objection * of a par^ whose interests are not [* 181] 
affected by it in a manner which the constitution forbids. 
It there are any exceptions to this rule, they must be of cases 
only where it is evident, from a contemplation of the statute and 
of the purpose to be accomplished by it, that it would not have 
been passed at all, except as an entirety, and that the general 

> 16 Pet. 689. lud« of indiriduali. The act rntde no 

* WilUrd D. Peopia, 6 HI. Ul ; E«lli v. proTiiion for compeniktion. The coin- 
People, 6 ni. 493. S«e HdgentowD o. miMionen elected (o take Undi belonging 
Dechcrt, 88 Md. 869. to the cit;. Held, that the act wai not 

* Hook p. New Orleuu, 82 La. An. wholly Toid for the omiuion to proTide 
79$. A law fiirbiddiDg the tale o( liqnon compeoiatlon in ca«e the l«nd« of iodlTid- 
at.y be TtritI aa to imported liqaon and nali had been letected. 

mid aa to all othen. Ilernan e. REnker, ■ Baker e. Braman, 6 Hill, 4T ; Re- 

102 n. 8. 123; Blue e. Amery, 12 K. I. genu of TJnlvenitj v. Williama, 9 GUI ft 

M. J. 366 ; i. o. 81 Am. Dec. 72 ; An Middle- 

* Hand/ v. Honroe, 1 Hich. 68; Cai^ town, 82 H. T. 196. The caae of Sadler 
fiU B. Power, 1 Mich. 868. In People v. v. Langham, M Ala. 811, appean to be 
Rochealer, GO H. T. 626, certain couimU- opposed to thli principle, but It aI»o ap- 
aionen were appointed to take for a dty pean to ui to be baaed npon caaea whidi 
ball, either landa belonging to the dtj or are not applicable. 



by Google 



216 CONSTITOTIONAL LIMITATIONS. [CH. VII. 

pnrpose of the legislature will be defeated if it shall be held v^d 
as to some cases aod void as to others. 



Waiving a Ootutttutional Objection. 

There are cases where a law in its application to a particular 
case must be sustained, because the party who makes objection 
lias, bj prior action, precluded himself from being heard against 
it. Where a constitutional provision is designed for the protec- 
tion solely of the property rights of the citizen, it is competent 
for him to waive the protection, and to consent to such action as 
would be invalid if taken against his will. On this ground it baa 
been held that an act appropriating the private property of one 
person for the private purposes of another, on compensation 
made, was valid if he whose property was taken assented thereto ; 
and that he did assent and Waive the constitutional privilege, if 
he received the compensation awarded, or brought an action to 
recover it.^ So if an act providing for the appropriation of prop- 
erty for a public use shall authorize more to be taken than the 
use requires, although such act would be void without the 
owner's assent, yet with it all objection on the ground of uncon- 
etitutiouality is removed.' And where parties were authorized 
by statute to erect a dam across a river, provided they should 
fii-st execute a bond to the people conditioned to pay such dam- 
ages as each and every person might sustain in consequence of 
the erection of the daro, the damages to be a^essed by a justice 
of the peace, and the dam was erected and damages assessed as 
provided by the statute, it was held, in an action on the bond to 
recover those damnges, that the party erecting the dam and who 
had received the beneiit 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 juiy.^ In these and 
[* 182] the like cases the statute must be read with ' an implied 

proviso that the party to be affected shall assent thereto; 

' Baker v. Braman, 8 Hill, 47. tax casei resting od k limilar principle, 

' Embury r. Conner, 3 N. T. 611. And lee MoU c. Detroit, 18 Midi. 495 ; Rick- 

lee Heyward v. Mayor, &xs. of New Tork, elt< v. Spnker, 77 Ind. 871. 

8 Barb. 486; Mobile & Oliio Railroad ■ People v. Murraj. 6 Hill, 46a See 

Co. p. Scftie. 2» Ala. 673; Detmold d. Lee d. Tillottoo, 24 Wend. S87. 

Drake, 46 N. Y. S18. For a waiver in 



by Google 



CH. Vn.] DBCLAEINQ STATDTE8 UNCONSTITUTIONAL. 217 

and such consent removes all obstacle, and lets the statute in to 
operate the same as if it hud in terms contained the condition.' 
Under the tenns of the statutes which esempt property from 
forced sale on execution, to a specified amount or value, it is 
Bometimea necessary that the debtor, or some one in hia behalf, 
shall appear and make selection or otherwise participate in the 
setting off of that to which be is entitled ; and where this is the 
case, the exemption cannot be forced upon him if he declinea or 
neglects to cWm it.' In PennsylTania and Alabama it has been 
decided that a party may, by executory agreement entered into 
at the time of contracting a debt, and as a part of the contract, 
waive his rights under the exemption laws and preclude himself 
from claiming them as against judgments obtained for such debt;^ 
but in other States it is held, on what seems to be the better rea- 
son, that, as the exemption is granted on grounds of general policy, 
an executory ^reement to waive it must be deemed contrary to 
the policy of the law, and for that reason void.* In criminal cases 
the doctrine that a constitutional privilege may be waived must 
be true to a very limited extent only. A party may consent to 
waive rights of property, but the trial and punishment for pub- 
lic offences are not within the province of individual consent or 
agreement.' 

1 EmbnrjB. Conner, 3 N.T. 611. And p. Cr«ig. 66 Penn. St 161 ; Thomai'g Ap- 

•ee Halter of Albany St, 11 Wend. 149 ; peal, 69 Penn. St. 120 ; Bibb v. Janoef , 46 

Chamberlaini!.Lyell,8Uich.448;Beecher Ala. S29; Brown v. LeiCrh, 60 Ala. 313; 

p. Baldy. 7 Mich. 488; Mobile ft Ohio s. c. 81 Am, Rep. 42; Neely v. Henry, 63 

Bailroad Co. v. SUle, 20 Ala. GT3; Det- AU. 261. And lee Hoiiinglon i>. Huff, 

motd p. Drake, 46 N. 7. 318; Haatell v. 24 Kan. 879. 

New B«drord, 108 Maat. 206; Waneer d. * Maxwell k. Reed, 7 VTia. 682: Knee- 

AtklmoD, 43 N. 3. 671. tie v. Newcomb, 22 N. Y. 249 ; Reuht u. 

■ In tome Stales the officer miut make Kelly. 82 111. 147 ; a. o. 26 Am. Rep. 301 ; 

the teleciion when the debtor faiU to do Moxle; d. Ragan. 10 Bush. 156 ; s. c. 19 

•o, and in aome the debtor, if • married Am. Hep. 61 ; Denny v. White. 2 Cold. 

mail, ia precladed from waiving the priv- 283 ; Branch v. Tomlinson, 77 If. C. 388. 

ilege except with the conient of hit wife, A woman cannot by ante-nuptial agree- 

^ren in writing. See Denny r. White, ment releaee the ipecial allowance made 

8 Cold. 283; Roai v. Lister, 14 Tex. 469; to her ai widow by statute; It being 

Taoderhitnt p. Bacon, 88 Mich. 869 ; b. c. againgt public policy. Phelpa o. Phelpi, 

SlAm. Rep. 828; QUmKU r, WillUm*. 7 72111.646, 
ma.329., ' See pod,* 319. And as to the waiver 

* Ca*e e. Danmore, 23 Penn. St 08; ofthe right to jary trial iDdTilcMei,pa<(, 

Bowman r. Smllej, Bl Penn. St 226; •410. 
SbeUy'i Appe^, 86 Penn. St 878 ; Ollul 



by Google 



OONSTITUTIOHAIi LIUITATIONS. [CH. YIL 



Jvdieial DovAtt on Conttitvfioncd Quettumt. 

It has been aaid by an eminent jurist, that when courts are 
called upon to pronounce the invalidity of an act of legislation, 
passed with all the forms and ceremonies requisite to give it the 
force of law, they will approach the question with great caution, 
examine it in every possible aspect, and ponder upon it as long as 
deliberation and patient attention can throw any new light upon 
the subject, and never declare a statute void, unless the nullity 
and invalidity of the act are placed, in their judgment, beyond 
reasonable doubt.' A reasonable doubt must be solved in favor 
of the legislative action, and the act be sustained.* 

'* The queatioQ whether a law be void for its repugnancy to 
the constitution is at all times a question of much delicacy, which 
ought seldom, if ever, to be decided in the affirmative in a doubt- 
ful case. The court, when impelled by duty to render such a 
judgment, would be unworthy of its station could it be 
[• 18S] unmindful • of the solemn obligation which that station 
imposes ; but it is not on slight implication and vague 
conjecture that the legislature is to be pronounced to have tran- 
scended its powers, and its acts to be considered as void. The 
opposition between the constitution and the law should be such 

1 WellingtoD, PetltloDer, 10 Pick. 87, 836; La Fajette v. Jennen, 10 bd. 74; 

per SiatB, Ch, J, See Brown v. Buzan, Ex parte McCoHum, 1 Cow. 6fiO; Contaat 

24 Ind. 104. If an set may be Tilid or n. People, 11 Wend Sll; Clark v. People, 

not acL-ording to the drcumituicei, ■ 26 Wend. 5SQ ; Morrii v. People, 3 Dealo, 

conrt would be bound to precume that 878 ; K. T., Ac B. R. Co. v. Van Horn, 

■uuh circuoiBtances exiited as would reo- 57 N. Y. 47S ; Baltimore r. State, 15 Ud. 

der it TiUid. Talbot n. Hudaon, ISGraj, 376; Coltouf. Commiuionereof LeonCo., 

417. e Fla. 610 ; Cheney u. Jonei. 14 Fla. 587 ; 

* Cooper V. Telfair, 4 Dall. 14; Dow Lane u, Dorman, 4 111. 238; i. c. 36 Am. 

D. Nonii,4N. H. 16; Hint River Steam- Dec. 543; Ne w land n. Marsh, 19111.876; 

boat Co. V. Foaler, 6 Ga. 194 ; Carey t>. Farmers' and Mechanics' Bank v. Smith, 

Gilei, 9 Ga. 263 ; Macon and Western 3 S. & R. 63; Weiitar v. Hade, 52 Peon. 

Railroad Co. u. Davii, 13 Ga. 68 ; Frank- St. 474 ; Sears v. Cottretl, 5 Hicti. 261 ; 

lin Bridge Co. r. Wood, 14 Ga. 80; Ken- TylerE. People, SMicti. 320; Allen County 

dnlt B. Kinfriton, G Mass. 524; Foster d. ComEuissionen d. SJlTeri, 22 Ind. 401; 

Essex Bank, 16 Mass. 246; Norwich n. Sute u. Robinson, 1 Kan. 17; Eyn v. 

Connt; Commissioners of Hampshire, 13 Jacob, 11 GraL 422; Gormlej v. Taylor, 

Piuk. 60; Hartford Bridge Co. v. Union 44 Ga. 76; State c. Cape Girardeau, ftc 

Ferry Co., 29 Conn. 210; Rich v. Flanders, R. R. Co., 48 Mo. 468; OleMn v. Railroad 

S9N.H.S04; Eason u. State, 11 Ark. 481; Co., 36 Wis. 388; Newsom e. Covke, 44 

Redlej V. Coramisaionen of Franklin Co.. Misi. 352 ; Slack v. Jacob, 8 W. Va. 612 ; 

4 Blaukt U6; Stocking r. State, 7 Ind. Commonwealth v. Moore, 25 Grat. 961. 



by Google 



CH. Vn.] DECLABJSQ STATUTES nNCONSTTtDTIONAL. 219 

that the judge feela a clear and strong coaviction of their iiicom- 
patibilitj vith each other." ' Mr. Justice Waahington givea a 
reaaOD for this role, which has been i-epeatedly recognized in 
other cases vrhich we have cited. After expressing the opinion 
that the particular question there presented, and which regarded 
the constitutionality of a State law, was involTed 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 which any law is passed, 
to presume in &vor of its validity, until its violation of the con- 
stitution is proved beyond all reasonable doubt." * 

The constitutionality of a law, then, is to be presumed, because 
the legislature, which was first required to pass upon the ques- 
tion, acting, as they must be deemed to have acted, with tnteg^ 
rity, and with a just desire to keep within the restrictions laid 
by the constitution upon their action, have adjudged that it is so. 
They are a co-ordinate department of the government with the 
judiciary, invested with very high and respousible duties, as to 
some of which their acts are not subjeot to judicial scrutiny, and 
they legislate under the solemnity of an official oath, which it is 
not to be supposed they will disregard. It must, therefore, be 
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, 
08 one based upon their best judgment. For although it is plain, 
upon the authorities, that the courts should sustain legislative 
action when not clearly satisfied of its invalidity, it is equally 
plain in reason that the l^slature should abstain from adopting 
such action if not fully assured of their authority to do so. Re- 
spect for the instrument under which they exercise their 
power should impel the • legislature in every case to solve [• 184] 
their doubts in its favor, and it is only because we are to 
presume they do so, that courts are warranted in giving weight 

" Fletcher ». Peck, 6 Cnu«b. 87, 128, 7 Am. Dec. 216 ; Kellore "■ Bute Tn»»- 

p» tfanhaU, Ch. J. nrer, 44 Vt, 866. 869; Stack ». Jtcob, B 

* Ogdao p. Saandera. 12 Wheat 3ia W. Ym. 612. 
SMAdant «>. Bow*, 14Hut.S40; ■. c. 



by Google 



220 CONaTITUTIONAL LIMITATIONS. [CB. VTI. 

in iiny case to their decision. If it were underetood that legisla- 
tors refrained from esei'cising their judgment, or that, in cases of 
doubt, they allowed themselves to lean in favor of the action they 
desired to accomplish, the foundation for the cases we have cited 
would be altogether 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 spiings 
from an endeavor to arrive at the true interpretation of the con- 
stitution, or from a conalderation of the law after the meaning of 
the constitution has been judicially determined. It has sometimes 
been supposed that it was the duty of the court, first, to interpret 
the constitution, placing upon it a construction that must remain 
unvarying, and then test the law in question by it ; and that any 
other rule would lead to differing judicial decisions, if the legisla- 
ture should put one interpretation upon the constitution at one 
time and a different one at another. But the decided cases do not 
sanction this rule,' and the difficulty suggested is rather imagin- 
ary than real, since it is but reasonable to expect that, where a 
construction has once been placed upon a constitutional provision, 
it will be followed afterwards, even though its original adoption 
may have sprung from deference to legislative action i-ather than 
from settled convictions in the judicial mind.' 

The duty of the court to uphold a statute when the conflict 
between it and tlie constitution ie not clear, and the implication 
which must always exist that no violation has been intended by 
the legislature, may require it in some cases, where the meaning 
of the constitution is not in doubt, to lean in favor of such a con- 
struction of the statute as might not at first view seem most ob- 
vious and natural. For as a conflict between the statute and the 
constitution is not to be implied, it would seem to follow, where 
the meaning of the constitution is clear, tftat the court, if postible, 
muit give the statute lueh a construction as will enable it to have 
effect. This is only saying, in another form of words, that the 

court must construe the statute in accordance with the 
[• 185] legislative •intent ; since it is always to be presumed the 

legislature designed the statute to take effect, and not to 
be a nullity. 

> See upon tliii lutyecl what U Mid in Tork, 6 SandE 10; Gark v. People, SB 

Otbum V. Scalej, 6 W. Ta. 66 ; TaU b. Wend. 609 ; Baltimore v. Stale, 16 Hd. 

Bell, 4 Yeiv. 202 : b. c. 2Q Am. Dec. 221. 8TS. 

* SuD Hutual Inaunnca Co. ■>. New • Fettle e. Blodgett, 18 Ulch. 1Z7. 



by Google 



CH. VII.3 DECLABING STATUTES UHCONSTITUTIONAL. 221 

Tlie rule upon this subject is thus stated by the Supreme Court 
of llliuois : *^ Whenever an act of the legislature can be so con- 
strued aod applied as to avoid conflict with the constitution and 
give it the force of law, such oonetruction will be adopted by the 
conrte. Therefore, acts of the legislature, in terras retrospective, 
and which, literally interpreted, would invalidate and destroy 
vested rights, are upheld by giving them prospective operation 
only ; for, applied to, and operating upon, future acts and transac- 
tions only, they are rules of property under and subject to which 
the citizen acquires property lights, and are obnoxious to no con- 
stitutional limitation ; but as retroactive laws, they reach to and 
destroy emitting rights, through force of the legislative will, with- 
out a hearing or judgment of law. So will acte of the legislature, 
having elements of limitation, and capable of being so applied 
and administered, although the words are broad enough to, and 
do, literally read, strike at the right itself, be construed to limit 
and control the remedy ; for as such they are valid, but as weap- 
ons destructive of vested rights they are void ; and such force 
only will be given the acts as the legislature could impart to 
them." ' 

The Supreme Court of New Hhmpshire, a similar question 
being involved, recogaizing their obligation "so to construe every 
act of the legislature as to make it consistent, if it be possible, 
with the provisions of the constitution," proceed to the examina- 
tion of a statute by the same rule, " without stopping to inquire 
what construction might be warranted by the natural import of 
the language used." * 

And it is said by ffarrU, J., delivering the opinion of the ma- 
jority of the Court of Appeals of New York : " A legislative act 
is not to be declared void upon a mere conflict of interpretation 
between the legislative and the judicial power. Before proceed- 
ing to annul, by judicial sentence, what has been enacted by the 
law-making power, it should clearly appear that the act cannot 
be supported by any reasonable intendment or allowable 
presumption." « And this after all is only • the applica- [• 186] 

> Newland o. Hu*b, 19 lU. 876, 884. Dubuque v. lUinois Cent R. R. Co., 39 

Sm klM Kgelow V. Vfet WJKonilD R. R. lova, 60. 

Co., 27 Wi#, 478 ; AMornej'-Generml v. • People 0. Superclaon of OraDge. IT 

Sm Clure. 87 Wii. MO ; CoUnutn v. N. T. 236, 211. See alio Boledere v. Clti- 

Tnkr, 1 Wwb. Ter. 691. zen*' Baak, 9 L*. GOe ; •. c. 29 Am. Dec. 

* Dow p. HortiM, 4 N. H. ItK 1& 8m 468. 



by Google 



222 coNSTirnTioNAi. uuitaiioks. [ch. vn. 

tion of the familiar rule, tbat in the exposition of a statute 
it is the duty of the court to seek to ascertain aod carry out 
the intention of the legislature in its enactment, and to give fall 
effect to such intenUon ; and they are bound so to cooBtrue the 
statute, if practicable, as to give it force and validity, rather than 
to avoid it, or render it nugatory.' 

The rule is not different when the question is whether any 
pordon of a statute is void, than when the whole is assailed. The 
excess of power, if there is any, is the same in either case, and is 
not to be applied in any instance. 

And on this ground it baa been held that where the repealing 
clause ID an unconstitutional statute repeals all inconsistent acts, 
the repealing clause is to stand and have effect, notwithstanding 
the invalidity of the rest.^ But other cases hold that such repeal- 
ing clause is to be understood as designed to repeal aU conflicting 
provisions, in order tbat those of the new statute can have effect ; 
and that if the statute is invalid, nothing can conflict with it, and 
therefore nothing is repealed.^ Great caution is necessary in some 
cases, or the rule which was designed to ascertain and effectuate 
the legislative intent will be pressed to the extreme of giving 
effect to part of a statute exclusively, when the legislative intent 
was that the part should not stand except as a component part 
of the whole. 

Inquiiy into Legislative Sfotwet, 

From what examinaUon has been given to this subject, it 
appears that whether a statute is oonstitutionol or not is always a 
question of power ; that is, a question whether the legislature 
in the particular case, in respect to the subject-matter of the act, 
the manner in which its object is to be accomplished, and the 
mode of enacting it, bos kept within the constitutional limits and 
observed the constitutional conditions. In any case in which this 
question is answered in the affirmative, the courts are not at lib- 
erty to inquire into the proper exercise of the power. They must 

1 Clarke v. SocbeBler, 24 Bnrb. 446. of Coant^ Conrt, 11 WU. GO; Umi r. 

Bee HanhiU b. Orimet, 41 MIm. 37 ; Bute, 26 Al*. lU ; SoIUtui v. AduD*. 8 

Morrell t;. Fickle, 3 Lea, 79. Graj, 476 ; Devor "■ Mayor, Ac. ot Hew 

1 Meihineler n. SUte, 11 Ind. 482 ; York, 86 Bkrb. 264 ; Campan p. Detrotl, 

EI7 P. Thompeon.S A. K. MM*h. 70. 11 Mich. 276 ; Childi n. Shower, 18 low*, 

• Sbepardeon v. Hilwaakee and Belolt 261 ; Earbeck v. New Tork, 10 Boiw. 

RailKMd Co., 6 Wl*. eD5; State v. Judge 866. 



by Google 



CH. VII.] DECLAEINQ STATUTES UNCONSTrnTTIONAL. 223 

assume that legislative discretion has been properly exer- 
cised.^ * If evidence was lequired, it must be supposed [* 187] 
that it was before the l^slature when the act was 
passed ;* and if any special finding waa 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 that the courts 
ought to inquire into the motives of the legislature where fraud 
and corruption were alleged, and annul their action if the allega- 
tion were established, the argument has in no case been acceded 
to by the judiciary, and they have never allowed the inquiry to 
be entered upon.^ The reasons are the same here as those which 

> People V. Lawrence, 96 Barb. 177 ; Hark r. Stale, 16 Ind. 98 ; Hendrickion 

People r. New Tork Cenltal Railroad Co, o. HendrickKHi, 7 Ind. 13. 
U Barb. 123 ; Baltimore v. State, 15 Md. * S<uibnrj and Erie Railroad Co. v. 

87S : Ooddin s. Crump, 8 Leigh, 161. Cooper,' SB Penn. St. 278 ; Ex parte New- 

■ De Camp n. EreUnd, 19 Barb. 81 ; man, 9 0*1. 602 ; Baltimore v. State, 16 

Lmfaerv. Scitea,4 W. Va. 11. Md. 876; Johoioii c Uiggiiu, 8 Met. 

* Johnion ■>. Joliet and Chicago Bail- (Ey.) 666. "The courti cannot impnte 

road Co., 23 III. 202. The Conititntion of to the legleUture any other than public 

miiioia proTlded that " corporationa not motivei for their act«." Peopled. Draper, 

poawaaing banking pawen or priTJlegee 16 N. Y. 682, 646, per Dmio, Ch. J. " We 

may ba formed under general lawi, but are not made judgei of the motirei of tlie 

•ball not be created by ipecial acta, except legiilatnre, and the court will not aanrp 

formuDicipal purpoiei, and in caaet Where, the ioquiBitorial offite o( inquiring into the 

in the judgment of the General Aisembty, bona Jida of that body in diichsrging ita 

the objects of the corporation cannot be dutiea." ShanUaad, J.. In the Mme cue, 

attained under general laws." A tpecial p. 666. " The powera of the three depart- 

cfaarter being psiied without any legiila- menti are not merely equal ; they are 

ttTc declaraiion that Ita olject could not exduaWe in reapect to the datlei aseigned 

to attained under a general law, the Su- to each. They are abaolutely Indepettd- 

preme Court auitained it, but placed their cnt of each other. It it now proposed 

dcdaion mainly on the ground that the that one of the three powers ihall Insti- 

danae had been wholly diiregarded, "and tute Mn inquiry Into the conduct of anoth' 

it wonk) now produce tar-spread ruin to er department, and form an iuue to trj 

dedare snch acts unconstitutional snd by what motives the legislature were goT- 

•rmd." It ia very clearly intimated in the emed in the enactment of a law. If this 

opinion, that the legiilatlTc practice, and may be done, we may alio inquttv by 

Ihia decision siutainjng it, did Tinlenoe to wl>at motives the executive is Induced to 

Uw intent of the constitution. A proTi- approve a bill or withhold his approval, 

sioD in the Constitution of Indiana that, and in case of withholding it corruptly, 

" no act shall take effect until the tame by our mandate compel its approval. To 

thaH have been published and circnlated institute the proposed Inquiry would be 

ki the MTeral counties of this Stale, by a direct attack upon the independence of 

anthori^, except In case of emergency," the legislature, and a usurpation of power 

mUt the worda, " which emergency shall subversive of the constitution," Wrighl 

be dedand in the preamble, or in the v. Defrees, B Ind. 208, 802, per Gmkin; J. 

body of tlie law ; " thus clearly making " We are not at liberty to Inquire into the 

Ibe legialatlTe declaration necessary, motives of the legislature. We can only 

Caipntorv. Honlgomety, TBlackf 416i examine loloits power under the coniiitu- 



by Google 



224 CONSTITUTIONAL UMITATI0N8. [CH. vn. 

preclude an inquiry into the motivea of the governor in the exer- 
cise 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.' 

[• 188] • CoTiBe^neeB if a Statute it Void. 

When a statute is adjudged to be unconstitutional, it is as if it 
had never been. Rights cannot be built up under it ; contracts 
which depend upon it for their consideration are void ; it consti- 
tutes a protection to no one who has acted under it, and no one 
can be punished for having refused obedience to it before the 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. 

lion." Per ChoK, Ch. J., In Ezparle McCaT- ■ Sirong r. Dimiel, fi Ind. MS ; Smn- 

dle, T Wall. 606, 514. The aame doctrine oer v. Be«ler, 60 Ind. 841 ; Aatrom v. 

it rettated by Mr. Jiutice HaiU, In Doyle HfimmoDd, 3 McLean, 107 ; Wooliey ». 

V. Continenul In>. Co., 9i V. S. Rep. 685. Commercial Bank, 6 McLean, IK ; De- 

And iteMcCullochv, State, lllnd. 424; troit v. Martin, 34 Mich. 170; Kelly p. 

Bradsliaw v. Umaha, 1 Neb. 16 ; Lyon d. Bemig, 4 Gray, 83 ; HoTer v. Barkhoof, 

Morrli, ]5 Ga. 480; People v. Flagg, 4S 44 N. Y. IIB; Clark n. Miller, 64 N. Y. 

N. V. 401 ; Slack v. Jacob, 8 W. Va. 612, 686 ; Meagher «. Storey Co., 6 Net. 244. 

6S&; State n. Cardoto. 6 S. C. 267; In People c. Salomon, 54 Til. 46, a miniite- 

Humboldt County v. Churchilt County rial officer waa wverely ceniured for pre- 

Comm'rB, Nev. SO ; Flint, &c. Plank iuming to diiregard a law si unconititn- 

Road Co. V. Woodhull, 26 Mich. M ; tional. Tbe coart found the law to be 

Slate V. Fagao, 2-i La. Aon. 545 ; State valid, but they could not have found otli- 

r. Hay*, 40 Mo. 604 ; Lnehnoan e. Tai- erwiie without juitllying the offlcer. In 

ing District, 2 Lea, 425 ; Kountze r. Oma- Texas It baa been held that an uiMMHUti- 

hn. 6 Hitl. 448. In Jones v. Jonei, 12 lutlonal act hat the force of lair for the 

I'enn. St. 360, the general principle was protectioa of officers acting under it. 

recognized, and it was decided not to be Seisumi r. Botts, 34 Tex. 835. In Iowa, 

cnmpetent to declare a legislalire divorce a magistrate who had issued a wamint, 

Toid fnr frand. It was nevertheless held and the offlcer who had served It, for tlie 

corapett^nt to annul it. on the ground that destruction of liquors under a city ordl- 

it had heen granted (as shown by parol nance which the city had no power to 

evidence) for a cnuse whicli gave the leg- adopt, were held to be protected, no^ 

ivlatnre no jurisdiclinn. Tlie legislalnre withstanding this want of power in the 

was refiarded as being for the purpnee a city. Henke v. McCord, 55 Iowa, 878. 

court of limited jurisdlctinn. In Atlor- The warrant seems to have been consid- 

ney.GeneralD. Supervisors of LakeCo., S3 ered "fiiir on its face;" bat can process 

Mirh. 289, it is decided that when supei^ ever be hit on its face when it commands 

vi*or« and people, having fbll authority that which Is illegal 1 If a decision ad. 

over the sabject, have acted upon the Judging a statute nnconititational it af- 

question of removal of a county seat, no terwards oTerraled, tbe statute is to be 

question of motive can be gone into to in- considered as having been in force for 

validate their acitnn. the whole period. Karce v. I^erce, 4S 

1 Altomey-General v. Brown, I Wis. lad. 86. 
G18 ; Wright c. Derreet, 8 Ind. 298. 



by Google 



CH. V1II.J THE QBADE8 OS MUSICIPAL GOVSBNMENT. 



•CHAPTER Vm. [•189] 

THE SEVERAL GBADE8 OP MDMCIPAL GOVERNHBNT. 

Ik the examination of American constitutional law, we stall 
not &il to notice the care taken and the means adopted to bring 
the agencies hj which power ia to be exercised as near as pos- 
uble to the subjects upon which the power is to operate. 

In contradistinction to those governments where power is con- 
centrated in one man, or one or more bodies of men, whose 
supervision and active control extends to all the objects of gov- 
ernment within the territorial limits of the State, the American 
system is one of complete decentralization, the primary and vital 
idea of which is, that local affairs shall be managed by local au- 
thorities, and general affairs only by the central authority. It 
was onder the control of this idea that a national constitutioQ 
was formed, under which the States, while yielding to the na- 
tional government complete and exclusive jurisdiction over external 
affairs, conferred upon it such powers only, in regard to mattei-a 
of internal regulation, as seemed to be essential to national union, 
strength, and harmony, and without which the purpose in organ- 
izing the national authority might have been defeated. It is this, 
also, that impels the several States, as if by common arrangement, 
to subdivide their territory into counties, towns, road and school 
districts,' and to confer powers of local legislation upon the people 

> The K^neml rolM nipectiDg ichooli common bniDChM of learning ; bat thi* 

minfflcieiillralikBia [beietenl Stittes notion ti exploded. High acliooli may 

to jiwtlf; bringing together in ihii place be eatabliihed : Stoart e>. School IXftrlet, 

die leadiDg anUiorltie* eoni«rning Uiem. 30 Mich. 8S ; R!chan1» d. Raymond, fQ 

To what degree Ibe I^slalare ihall pro- HI. eiS ; e. e. Si Am. Kcp. Itil ; and 

TideCoTlheedncailonof ttiepenpleat the k> maj' normal ichooli and colleges; 

eaat of the State or at ita mnnlcEpalitiei, Powell v. Board of Education, 97 III. 

iiB qneation which, except ai regulated 37b; Briggi v. Johnton Co., 4 Dill. 148; 

bj the contdttillon, addiciaei Itaelf lo the muaic maj be taught ; Bellmej'er v. 

legiiUtiTe judgment excluiively. Com- School District, 44 Iowa, 664; and the 

Bonwealih d. Hartman, IT Penn. 6t. 11B. State may confer upon the goreming 

n ha* been lometimei contended that It boardi auch authority as it shall deem 

wa* bicompetent lo go beyond making wt»e, bat lubject to alteration at all 

iroTUon for general edoeatioii in the times, and to be taken away at the dto- 
IS 



by Google 



226 CONSTITDTIONAL LIMITATIONS. [CH. YIII. 

of each sabdivision, and also to incorporate cities, boroi^ha, and 
villages wherever the circumstances and needs of a dense popula- 

CKlion of the State. Rawion o. Spen- the dutrict. Schtxd District c. Fogelmaa. 
cer, 113 Mbu. 40. H&dt of tbe Sute 70 HI. IBQ ; Johnson v. School DUtrict. 67 
comtitntion* provide commoD-achool Ho. HIS ; Board of Education v. Thomp- 
fands, and lome provide a fund for ion, 3S Ohio St. S21 ; Gehling r. School 
liigher education witb certain reatric- Diitrict, 10 Neb. 289 ; Gibaoa d. School 
tion> : whatever thete are they muit l>e Dittiict, 30 Mich. 40i; Weill n. People, 
obierTed. People v. Board of EducatitKi, 71 HI. 632. The general control of » 
13 Bsrb. 400; People e. Alien, 42 N. Y. ichool building Ii in the board, whicit 
404 ; Halbert u. Sparks, 9 Buili, 259 ; may maintain all proper snita for posaea- 
Coitini V. Uendenon, 11 Buih, 74 ; State iton. Baiber «. Tnuleei of Schools, 61 
B. Graliam, 26 La. Ann. 440; State v. HL 89tli Aldennaa v. School Diracton, 
Board of Liquidation, 29 La. Ann. 77; 91 Hi. 179. The board moat not enter 
Sun HuL Ini. Co. v. Board of Liquida. into contracts with IM own raemben, a* 
tlon, 81 La. Ann. 176; Llttleirort t>. Da- theae would be void. Pickett n. School 
Til, 60 AUas. 403; Weir v. Day, S6 Ohio District, 26 Wis. 661 ; Hewett v. Normal 
6ul4a; Otken r. Lamkin, 66 Miu. 758. S<:hool District, 94 lU. 628; Flint AcR. R. 
Although it it cnstomary to leare the Co. e. Dewej, 14 Mich. 477. Tbe board 
control of schooli in the hands of the Is enlruited with the anthority to employ 
■cliool authorities, it it held competent teachers, and to remore them under the 
tor the State to contract with a publisher rules prescribed bf statute. Crawforda- 
lotnppl;all the tchooU of the Stale with ville e. Hays, 42 Ind. 200; School Dia- 
text-books of a uniform charinter and trict v. Colvin, 10 Kan. 2S8 ; Directora, 
price : Currjer v. Merrill, 26 Minn. 1 ; a. &c. d. Burton, 28 Ohio St, 421 ; Jones r. 
o. 83 Am. Sep. 450 ; Bancroft v. Thayer, Nebraaka, 1 Neb. 176 ; Bays v. State, S 
eSawy. 602; People c. Board of Ednca- Neb. 167; Parker v. School District, & 
tion, 56 CaL 831. Tlie governing school Lea, 506. If a teacher is rightfully di»- 
boards derive all their authority from the mlsseii, he cannot r^corer fbr serricea 
atatute, and can exerciie no powers ez- performed thereafter, though he take* 
cept those expressly granted, and those poMessionof the ichool-houie and contin- 
which result by necessary implication ue* to teach. Pierce r. Beck, 61 Ga. 418. 
f^om the grant : Peers u. Board of Educa- But if he is wrongfully dismissed, or if he 
Hon, 72 111. 608 ; Clark v. School Direct- leaves school because of the unjustifiable 
ors, 78 111. 474 ; Adams v. State, 62 III. action of the bond, he may recover for 
183; Stevenson o. School Directors, 87 his whole time. Ewing n. Sohooi Direct- 
Hi. 266 ; Manning e. Van Buren, 28 Iowa, on, 2 HI App. 458 ; Scott r. School Dia- 
S82; Monticello Bank v. Coffin's Orove, trict, 46 Yt. 462. See McCutchen v. 
61 Iowa. 850; State e. Board of Ednca- Windsor, 56 Mo. 149. Omtracis for > 
ton. 36 Ohio St 368 ; Stale v. Mayor, £c., stated time are subject to tbe observance 
7 Neb. 267 ; Qehling d. School District, 10 of public holidays, and the teacher is en- 
Neb. 289. The board, in exercising Its titled to these without deduction rrotn 
authority, must act as aoch. In regular his salary. School District v. Gage, 39 
meetings convened for the purpose ; It is Mich. 484. The school board may make 
not sufBcient that the members severally the contract for teaching extend beyond 
give their assent to what is done. State their own term of office : Wilson c. School 
I-. Leonard, 8 Tenn. Ch. 117 ; State d. District, 36 Conn. 280 ; Wait v. Ray, 97 
Tiedemann, 69 Mo. 515; Smiths. Town- N. T. 36; provided they act in good faitb 
ship Board, 68 Mo. 297 ; Dennison School and do not unreasonably fortetall tbe a^ 
District i>. Piidden, 89 Penn, St 396. Hie- lion of thetr successors : Loomis c. Cole- 
gal or nnaullinrized aclion bj the board man, 61 Mo. 21 ; Stevenann v. School 
cannot be ralifled by it, and the fact that l>ittrict, 87 HI, 266 ; Hewitt v. School 
tha district lias the benefit of what is District, 91 Bl. S28 : Schotri Diracton r. 
done, will not amount to a ratiacation by Hart, i lU. App. 224. See Tappan v. 



by Google 



CH. Vm.] THB OBADB8 OT MnSICIPAL GOVIBNMEST. 227 

tion seem to reqnire other r^nlations than those which are need- 
ful fot the rural districts. 

The system is one which almost seems a part of the very nature 
of the race to which we belong. A. similar subdiTision of tiie 
zealm for the purposes of municipal goTemment has existed in 
England from the earliest ^es ; ^ and in America, the first set- 
tleiB, as if instinctiTely, adopted it in their frame of gov- 
ermnent, 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 least the towns preceded and created the central author- 
ity;* but in all, the final result was substantially the same, that 

School Dlitriet, U Hlch. 600 ; Athearn e. In tmit mone;* gireo for edacktloD, tet 

IndependeDt DUtrfL-t, 8S Iowa, 106. The Fiper v. Houlton, 72 He. 15&; Hnthewmj 

board bM graertl authority to eitabliih v. Saukett. 82 Mich. 97. 
fbr tbe icbool inch rule* and regulation* > Crabbe'i Hlitorj of Bngllih t«w, 

M it ihaU deem wIm. Donahoe r, lUuh- c. 2 ; 1 BL Com. 114 : HalUm'i Middle 

Kfd*, S8 Me. 87a ; Spiller v. Wobum, 12 Agei, c. 8, pL 1 ; 2 Kent, 2T8 ; Vaughan't 

Allen, 127; Board of Education r. Minor, Refolatloni in Engliah Biatory.b. 2,0.8] 

33 Ohio St 211. The rule* may be en- Frotbingham'i RUe of the Republic, 14, 

foToed by ■nipeniiom and expnliionf If 16. The earlj local inititotioni of Bng- 

neeeitary. Hodgkini v, Rockport, lOG land are preiented vilh great fulneei and 

Haia. 476; Murphy o-Directori, 30 Iowa, erudition in the CoTutitational Hiatory of 

4S&; Bnrdiek v. Babcock, 81 Iowa, 602 ; ProfeMor SEnbbi. 

Board of Education e, Thompaon, 83 ' For an intereiting hiitory of the leg. 

Ohio St 321 ; Rnluoo e. Foat, 79 111. iaiation Id Connecticut on thi* aobject, 

H7; Seirell v. Board of Education, 29 lee Webiter v. Harwinton, 32 Conn. 131. 

Ohio Sl 80. But Ihii poirer ia tntyect to In New Hampahire, lee Bow d. AUetM. 

tbe genena principle that the by-laws of town, 84 N. H. 361. Tbe learned note to 

■II corporationi moil be 'reatonable ; ifa Commonwealth v. Roibnry, 9 Gray, 608, 

mle i« nnreaionable, and a pnjdl ia pun- will gire limilar infonnation concerning; 

iihed for refntal to lubmit to it, an action tbe organlntioa and anthority of towna 

will lie. Roe v. Deming, 21 Ohio St 6M. in the Maaaachnaettt provinoei. And 

See Ward t>. Flood, 18 CaL 36. The aee People v. Huribut, 24 Mlcb. 9B ; a. c. 

board and tbe teacher hare no CMiCrol of Am. Bep. 108; Shumway v. Bennett, 

pnpili after they have returned to their 29 Mich. 461. Mr. Elliott well aayi: 

homet. Dritt v. Snodgrau, 66 Mo. 286. " Tbe prime itrength of New England 

It la held in Wiacondn and lUlnoit that and of the whole lepubUc wat and ia hi 

P«reDta have a right to excnat their chil- the mncicipal gorenimenta and in tbe 

dren from taking any particular atudy in homei." And he addi, that among tbe 

B oonrae, and that teacher* cannot refnae earliett thlcgi decided in Maaiachuaetta 

to giTe inilrucdon to the papila thui wai, " that trivial thlnga ibould be ended 

Hcnied. Mcnow r. Wood, 86 Wia. 69 ; In towni." (1S3G.) BlUoK'i New Eng- 

S. c. IT Am. Rep. 471 ; Rnliaon v. Pmt, 79 land. Vol. I. p. 182. 
DL e«7 ; L«ke View School Truatee* e. ■ Rbode Island ; lea Amold'i Hiitory, 

People, 87 DL 803. Ai to the power to c. 7. It ia remarked by thia antfaor that, 

Afcrlndnate between colored and other when the charter of Rhode Iiland waa 

children fa achoola, aee pM, * 801, note, auapended to bring tbe Colony under the 

Ai (o devoting achool fundi and achool dominion of Androa, " lia Anerioaii iyi<m 

bnildiagi to reKgioua parpoaei, lee pari, a^ lawn gwenimaiti, which oeceuity bad 

*1M, note. Hut town*, &c., may hold eompdled Bhode laland to Initiate fif^ 



by Google 



228 CONSTITDTIONAL LIHITATIOHa. [OH. Vin. 

towns, Tillages, boroughs, cities, and counties exeiciaed the powers 
of local goTeromeot, aod the Colony or State the powers of a 
more general nature.^ 

The several State constitutions have been framed with this sys- 
tern in view, and the delegations of power which they make, and 
the express and implied restraiute which they impose thereupon, 
can only be correctly understood and construed by keeping in 
view its present existence and anticipated continuance. There 
are few of the general rules of constitutional law that are not more 
or less affected by the foct that the powers of government, instead 
of being concentrated in one body of men, are carefully distrib- 
uted, with a view to being exercised with intelligence, 
[* 191] * economy, and &cility, and as far as possible by the 
persons most directly and immediately interested. 
It has already been seen that the legislature cannot delegate its 
power to make laws ; bat fundamental as this maxim is, it is so 
qualified by the customs of oar 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 npon them 
the powers of local government, and especially of local taxation 

jtatt before, becuno the meuu of [««■ U made bj tbe State, It nitut be eaCoroed 

•erring tbe IndiTldnal liberty of the citi- by the towD. A uniform ijitem of in- 

■en when that of tbe State or Colony wu ttructlon it organised all orer the countTj, 

crathed." Arnold, Vol. L p. 487. and every lown Ti bound to eetabliah tbe 

' "The tovnihiiM," laya De Tocque- scboolt which the iawordaini. . ■ . Strict 

Tllle. "are only lubordinaM to the Stale ai this obligation i>, the goTernment of 

In (liose intereatt wfaich I ihall term the Slate impoeee it in principle only, 

midal. at they are common to all the and in its pertbnDanca the townaliip aa- 

dtiiena. They are Independent in all tumei all itt independent rigiitL Thoa 

that concern* themielTei, tuid among the taxe* are Toted by tlie State, but they 

inhabitant! of Kew England I believe are aiMited and oollected by tbe town- 

that not a man it to be found who would ihlp ; the exittence of a cchool it oblig»- 

•cfcnowledge that the State hu any right tory, but the township buJLda, payt, and 

to interfere in their local intereita. The tuperintendt it. In France, the State 

towntof New England buy and lell, pro*- collector receive! tbe local Impost*; in 

ecQleorare indicted, angmentordimiaiih America, the town collector receive* tlia 

dieir rate*, without the tlightest oppoai- taiea of the Slate. Thui the French 

tion on the part of the adminiatrative an- government lend* it* tgenli to the com- 

thority of the State. They are bound, mnne ; In America, the townihip it the 

however, to comply with the demand* of agent of the government. Thli fact aloiw 

the commnnity. ^ a State I* in need of ihow* the extent of the diSerencet which 

money, a town can netther give nor with- exitt between the two nationi." Demoo- 

bold the auppiie*. It a State project* a racy in America, c. $. See Fh>tbiiig> 

road, the townahip cannot refuae to let it ham't Riae o( tbe BepnbUc, 11-28. 
croai It* territory ; if a police regolatioa 



by Google 



OH. Vm.] THE GBADE8 OF MUNICIPAL QOTBBNMGNT. 229 

aDd polic« regulation naaal with Buch corpoiationa, would always 
pass UQchaUenged. The l^slatnre in these cases is not regarded 
as del^ating its authority, because the r^^latioo of such local 
a&iis as are commonly left to local boards and officers is not 
understood to belong properly to the State ; and when it inter- 
feres, as sometimes it must, to restrain and control the local 
action, there should be reasons of State policy or dangers of local 
abuse to warrant the interposition.' 

The people of the municipalities, however, do not define for 
tbemselvea their own rights, privileges, and powers, nor is there 
any common law which draws a definite line of distinction be- 
tween the powers which may be exercised by the State, and those 
which must be left to the local governments.^ The municipalities 
must look to the State for such charters of government as the 
legislature shall sea fit to provide ; and they cannot prescribe for 
themselves the details, though they have a right to expect that 
those charters will be granted with a recognition of the 
general 'principles with which we are &miliar. The [*192] 
charter, or the general law under which tbey exercise 
their powers, is their constitution, in which they must be able to 
show authority for the acts they assume to perform. They have 

> "It Memi to be gencrany conceded The Frederick JntUcee, 13 Gnt. C77; 

tbtt powen of local tegtilniikin may be Hayor, Ac ot New Tork e. Ryan, 2 E. IX 

granted to citiee.tOKDi, and other munlci- Smith, HOB; St LonU v. Ratwll, 9 Mo, 

pal corporattoni. And It vould require G07 ; Bllu n. Knta, 16 Ohio St Sfi ; Tri- 

ettong reatOD* to *atl*fy ni Chat it conid gaily ir. Menphii, 6 Cold. 8S9 ; Durach'* 

hsre been the dasigii of the franker* of Appeal, m Peno. St 401; State e. Wtl. 

oor conitltntlon to take from the legiilar coi, 46 Mo. 466 ; Jonee r, Riciiiiiond, IB 

tore a power which bM been eierciMd hi Grat 617 ; State v. O'NdU. 24 Wia. 140 ; 

Europe by goTeranieiita of all clauea Brattlej v. H'Atee, 7 Both, 667 ; a. a. S 

froiD the earlieat history, and the exerdM Am. Kep. 800 ; Bnrckholler v. H'Connell*- 

«f which hai probably done more to pro- Tllle, 20 Ohio St 308; People d. Hari> 

note cWUlBttkKi than ^I other caiuea bnt, M Mich. 44; a. c. Am. Rep. lOS; 

combined; whidi ha* been cofutantly Hilt* D.Charleton,20 Wii.4D0; CVminoiy 

emdied In BTery part of our eoanttj wealth v. Coyaingham, 06 Fenn. St 70; 

ttam It* earllett Mttlement, and which People n. Kelaay, 84 Cal.470i Tdgman e. 

hai railed np among tu many ot onr mo*t Chicago, 7B IlL 406 ; Manly r. Baleigb, 

Taiuable Inititntlona." State f. Noye*, 80 4 Jone* Eq. S70; Stone b. Chariettown, 

ll.H.279,292.peratf,J. SeealaoTanner 114 Ma**. 214 ; Hayden v. Ooodnow, 80 

V. Trstteei o( Albion, 6 Bill, 121 ; Dalby Conn. 164; QoldtfawaUe e. Montgomery, 

e. Wolf, 14 Iowa, 228; State tr. Simondi, A0Ala.4B8; Cra** v. Htqtlin*, 6 W. Ta. 

3 Ho. 414 ; HcKee >. HcKee, 8 B. Uonr. 828. 

4S3; Smith t>. LcTinna, 8 N. T.472; Fee- ■ A*to the cnrnmon law affecting thete 

pie V. Draper, 16 S. T. 682; Bnrgeai corporate ezlitence*, and the effect of 

». Foe, 3 QUI, 11; New Oriean* t. wage, *ec 2 Kent, 278, 279. 
Tnpin, 18 La. Am. »( OiUnaon v. 



by Google 



230 CONSTITDTIONAI. LDUTATIOKa. [CB. Till. 

no inherent jurisdiction to make I&wb or adopt r^[iilationB of 
government ; they are goTemmenta of ennmerated powers, aot> 
ing by a delegated authority ; bo that while the State legialature 
may exercise eucb poweis of government coming within a proper 
designation of legislative power as are not ezpressly or impliedly 
prohibited, the local authoritieB can exercise those only which 
are expressly or impliedly conferred, and subject to such r^ul»- 
tions or restrictiona as are annexed to the grant.' 

The creation of municipal corporations, and the conferring 
Qpon them of certain powers and subjecting tbem to correspond- 
ii^ duties, does not deprive the legislature of the State of that 
general control over their citizens which was before possessed. 
It still has authority to amend their charters, enlarge or diminiah 
their powers, extend or limit their boundaries, consolidate two 
or more into one, overrule their legislative action whenever it is 
deemed unwise, impolitic, or unjust, and even abolish them alto- 
gether in the legislative discretion, and substitute those which are 
different.' The rights and franchises of such a corporation, 

1 StetioD V. Eemplon, IS Mus. ST3 ; v. CnffeniU, 24 Mo. M ; People b. Draper, 

WiUvd V. EilliDgworth, 8 Conn, ail; 16N.T.fi32; Hawking n. Common wealth, 

Abendroth r. Greenvich, 29 Conn. 366; 76 I'eon. St. 16; People d. Tweed, 63 

Baldwin v. Noitb Branford, 82 Conn. 47; N. Y. 202; Barnei ■>. Diitiict of Colam- 

Webtter d. Harwinton, 82 Conn. 181; bia, SI U. 8. Bep. 540; Luamie Co. v. 

DoQglaBtv.FlacerTitle,18C>1.648: Lack- Albuij Co., BS U. S. Bep. 807; Aipin- 

land c. Northern MUiouri Ballroad Co., wkU tt. CommlMionen, &c, 22 How. 804 ; 

81 Mo. 180; Ma^i o. Cincinnall, 1 Ohio Howard b. McDiamld, 26 Ark. 100; Phil- 

St. 268; Frott b. Belmont, 6 Allen, 162; wlelphia v. Fox. 64 Penn. St. 169; Brad- 

Heai B. Pegg, 7 Her. 28 ; Quid v. Rich- ahaw v. Omabm 1 Neb. 16 ; Enhn v. Boud 

rooad, 23 Gntt. 464; Youngblood v. Sex- of EdncatioD, 4 W. Va. 499; Sialon v. 

ton, 32 Hlcb. 406; i. c. 20 Am. Rep. 666. Aibbnir, 41 C«l. 626; Hesi p. Pegg, 7 

1 8l. Lonii 0. Allen, 18 Ho. 400 ; Colei tier. 23 ; Hagentown v. Bcbaer, 37 Md. 

e. Madiaon Co., Breeae, 11G ; BichUnd 180; 6«ii Fnnciaco b. Canaran, 42 CaL 

Coontj a. I«wrence Ceaatj, 12 111. 1; &41; Bitten. Jenoingi, 27 Ark. 419; Diri- 

Tnuleei of Schooli v. TKtmttn. 13 ni. 27 ; alon of Eoward Co., 15 Kan. 104 ; Martin 

RobertMui t>. Rockford, 21 U] . 451 ; People e. ■•. TAx, 62 HiM. 68 ; Goff v. Frederick. 44 

Power, 25 lU. 187; St. Louis v. RuweU, Md. 67; Bleuing v. GaUetton, 42 Tex. 

PMo. 607; State f. Cowan, 29 Mo. 880; 641. The legitlatare maj in ita discM- 

HcKIm B. Odom, 3 Bland, 407 ; Oranbj tion reoall to iltelf and exerdw to much 

B. Thnnlon, 28 Coon. 416 ; Harriion Jat- of inch powen aa it bM conferred upon 

ticei V. Holland, 3 Gratt. 247; Brighton roaotdpal corporationa aa ii not aecured 

r. WilkioMm, 2 Allen, 27 ; Sloan b. State, to tbem by the conititntion. Peojde «. 

8 Blaokf. 861 ; Mill* c. Williama, 11 Ired. Plnkney, 32 N. T. 877. Tbe lubject wm 

658; Langwnrthj v. Dubuqoe. 16 Iowa, eoDBldered at lengtb In Meriwether d. Gar- 

271; Weeki v. Milwankee. 10 Wli. 242; relt, 102 U. S. 472, in which wai cocafd- 

Slate El. Bninin, 28 N. J. 4B4; PBttetemi et«d the etfect of tlie legialation which 

V. Sodety, &o., 24 N. J. 886 ; AtchiaoD e. aboliihed the cit; goTerament of Mem- 

Bartholow, 4 Kan. 124 ; Cilj' of St. Louia phb. The crediton of a county cannot 



by Google 



Ca. TUI.} THB aEADES OF MUNICIPAL OOTEBHUENT. 281 

bein^ granted for the purpoees of govemment, csn neirer 

* become sucb veeted rights as ^Hiuut the State that they [* 198} 

caonot be taken away ; nor does the charter constitute 

a conCnuit in the sense of the constitutional provision which 

prohibits the obligation of contracts being violated.' Reatrainta 

on the legislative power of control must be found in the consti- 

tatioD of the Stat«, or they must rest alone in the legifilatave 

disoretioQ.' If the legislative action in these cases operates inju- 

preTent the legiiUtoTB radncing iU limit*, » d«nM hi ft mnnicliMil efaarter on Ihe 

BotwitlwUuidiag tbeir tecuiit^ may b« (ame anlyect. State v. BianiD, 23 N. J. 

diffilDiihed therebf. Wade v. Richmond, 484. 

18 Qi*t. 688 ; Luerliman t>. Taxing Dia- i Tbl* prindple waa recogniied bj the 

trict, 2 Laa, 426. Compare Hilner v. aereml Jodgea In Darlnwuth College v. 

PWMacola, a Woodi, 682; O^aatiurg v. Woodward, 4 WheaL 618, and ia Hni- 

BawkUuon, T& til. 168 ; Rader ■>. Bowl wether v. Oarnitt, 102 U. 8. 472. And 

DUtrict, 86 N. J. 278; WalUca v. Sharon iM People o. Morris, 18 Weod. 826; Bt 

Tmaleea, M N. C. lU. This power i( Lonii v. Knaaell, Mo. GOT ; MoDtpdier s. 

not defeated or aaeeted bj the circiim- Eaat Montpeller, SB Vt. U; TniBieei of 

etancc that the moDJcipal corpot«tion wm Sdioola v. Tatmui, 13 III. 27 ; Brighton 

b; iti charter made the tniitae of a cha> v. Wilklnion, 2 Alleo, 27; Kejnaldt «. 

it; ; and in each caae, if the coiporation Baldwin, 1 La. Ado. 162 ; Polioe Jaij v. 

ia aboliilied, the Court o( Cliaiw«7 ma; Shrareport, 6 La. Ann. 606; Ht. Carmel 

be empowered and directed b; the ra- e. Wahaah Connty , 60 IlL 69 ; Lake View 

yealing aet to appoint a new trwEee to e. Bok Hill Cemetery, 70 111. lUI ; Zitaka 

take charge of the property and esecnte d. Qoldberg, SB Wii. 216; Dillon, Mun. 

thelmat. Montpeller d. Eaat HoDtpelier, Corp. )f ^> BO, 87. 

SQ Vt. 12. And lee Uarriaon s. Bridgo- * See ante, p. »S&; poU, pp. *280, *2SS. 

tcoi, 10 Ma«*. 16 ; Montpeller Academy e. " Where a corporation ii the men erea- 

George, 14 La. Ann. 406; Beynoldt v. ture of legiilative will, eilablithed for 

Baldwin, 1 I*. Ann. 162 ; Polioe Jury v. the general good and endowed by the 

BhreTeport,6La. Ann. 666; Philadelphia Slate alma, the legUlatare may, at plea- 

p. Fox, 54 Penn. 8t 16B; Weymouth and »ure, modifr the law by which It wa« 

Braintree Fire CommiMionen v. Cotatj created. For in that c««e there would be 

Commi»Honen,106Maaa.l42. Aatoex- but one party affected, — the goremment 

taot of power to hold proper^ In troat, iieelf. — and therefore not a contract 

•ee Batheway ». Sackett, 32 Mich- 97. within the meaning of the conilitutioii. 

fiat neither the Identity ot a corporation. The trartees of inch a corporation would 

Dor ii* right to lake pnqierty by deviie, be the mere mandatorle* of the State, 

ia deetroyed by a change in ita name, or hating no peraoual Interest inTolred. and 

enlargement of it* area, or an increaae in eonld not complain of any law that might 

the number of ita corporatora. Oirard abridge or deitroy their airency." Hont- 

B. Philadelphia, 7 Wall. 1. Changing a peiier Academy e. George. 14 La. Ann. 

borough into a city doe* not of f taelf abol- 406. In Trofteei of School* v. Tatmao, 

iah or affect the esiatlnK borongh ordi- 18 HI. 27, 80, the conrt aay r " Public cor- 

nancea. Tnuieea of Erie Academy e. poratioDi are but parti of the machinery 

City of Erie, 81 Penn. St. 616. Nor wlU employed in Mirying on the alUn of 

It aflhrt the Indebtadneai of Ihe corpora- the Slate ; and they are subject to be 

Hon, which will continue to be Iti indebt- changed, modified, or deetroyed, ai tbe 

edoen under iti new organlcation. Olney exigenciei of the public may demand. 

e. Harrey, MHI. 468. A general itatule, The State may eierdie a general luper- 

coalaining a danie repealing Ul itatntet Intendence and control over them and 

contrarj to iti pnTWou, doe* not repeal ttaair rlghla and eOeci*, m> that ibeir 



by Google 



SSS coNSTcrnrioNAL umitatiohs. [cb. viu. 

riously to the maoicipalities or to individuals, the remedy is not 
with the courts. The courts have no power to interfere, and the 
people must be looked to, to right through the ballot-box all 
these wrongs.^ This is the general rule ; and the exceptions to 
it are not numerous, and will be indicated hereafter. 

property li not direrted ftoni the uMi nnd «. Lexio^n. IT Pick. 222; Aitonwy- 

objecti for nhicb it wai giTen or pur- Oen«ralD.Cuiibridge,ieGra7,24T; CUrk 

chMed." And lee 8lst« b. Miller, 66 Mo. r. Csmbiidge, Ac. Bridge Proprieuwi, IM 

60. As to tbe effect of legiilatioo abol- Mui. 236. The legislature hu poner to 

bhing B corporation upon iti property and Uy oat a road through lereral towna, and 

debts, see Uonnt Pleaeant d. Beckirlth, apportion the ezpenee between then. 

100 U. S. 614 i Meriwetber o. Garrett, 102 WaterrUIe v Kennebeck County, 69 He. 

U. 8. 1T2; lUwson et. Spencer, 118 Mau. 80; Commonwealth c. Newbnryport, 103 

40. It is a lawful exercise of legislative Hau. 129. And it may cliaoge the law 

autliority upon tbe diTiiioo of (.-ountiee, and redUtribnte the burden afterwardi, 

towns, &c., to conler a part of the corpo- if from a change of circumstiacce or 

rate property of the old oorporation upon other reMoni it is deemed just and proper 

the new, and to direct the old body to pay to do so. Scitoale v. Weymouth, 108 

It orer to tbe new. Harrison v. Bridge- Mais. 128, and cases cited. A aUtnte 

ton, 16 Mass. 16 ; Salem Turnjuke v. E«- abolishing sdiool diatrictt Is not Toid on 

lei Co., 100 Mass. •JSi; Whitney v. Stow, grannds like tbe following : that it Ukea 

111 Mass. 368 J Stone K.Charieatowu, 114 the property of the districts without com- 

Msaa. 214; Sedgwick Co. t>. Bunker, 14 pensatlon; that the taiea imposed will 

Kan. 498 ; Portwood v. Montgomery, 62 not be proportional and reaionabte, or 

Hiaa. 623; Bristol e. New Cheater, 3 N. H. that contracts will be aff'ected. Rawioli 

624; MilwBUkeeTownu.MiiwaukteCity, tt.Spmcer, 118Maas.40. SeeWeymontb. 

12 Wis. 93; Msrshall Co. Court p. Callo- Ac.FireDistriL-to. County Commissionen, 

way Co. Court, S Bush, 9B. Bat it seems 108 Mass. 142. 

that an apportiunmeut of property can ' "Thecorreetlon of these abuse) is ■• 
only be made at tlie time of tbe diTision. readily attained at tbe ballot-box as it 
Windham V. Portland. 4 Mass. 384; Hamp- would be by mbjectlng it to judicial re. 
shire e. Franklin, 16 Mass. 76. See Rich- rision. A citicen or a nomber of citiient 
land V. Lawrence, 12 III. 1 ; Bowdolnliam may be subtracted from a coonty free 
V. Richmond, 6 Me. 112. In the Utter fnm debt, haring no taxation (br county 
caae it was held that the apportionment pnrpoaes, and added to an adjacent one, 
of debts between an old town and one wbosa debts are heary, and whose taxing 
created tVom it waa in the nature of a powers are exercised to the utmost ex- 
contract; and it was not in the power of lent allowed by law, and this, too, with- 
the legiiliture afterwards to release the out consulting their wishes. It la done 
new township from payment of its share every day. Perhaps a majority of the 
as thus deteruiined. But the case of people thus annexed to an adjacent or 
lAyton e. New Orleans, 12 La. Ann. 616, thrown into a new county by the divl- 
jacontni. See also Borough of Duumore's aion of an old one may liare petitioned 
Appeal, 52 Peno. St. ST4, and School the legislature for this ciiange; but this 
District ". Board of Education, 73 Mo. is no relief to the nutroted minority, or 
fStl, which in principle eeem to accord the indlTldual who deems himself op- 
with the Louisiana Case. In Bami v. pieesed and vexed by the change. Must 
Clarion County, 62 Penn. St. 422, It waa we, then, to prevent auoh occasional herd- 
held the legislature had the power to ehtps, deny the power entirely 1 
open a settlement made by county audi- "It moat be borne in mind that tlieee 
tors with the county treaanrer, and to corporations, whether estnblithed over 
f»mpel them to settle with him 00 prin- dties, counties, or townships (where luch 
eiple* of equity. See further, Cambridge incoiporatvl eubdirisioas exist ), are never 



by Google 



CH. yni.J THB 6BAD£a or MUNICIPAL GOVBBNMBNT. 



• Povert of Public Corporatiotu. [• 194] 

The powers of these corporations are either express or implied. 
The former are those which the legislative act uuder which they 
exist confers in express terms ; the latter are such as are neces- 
sary in order to carry into effect those expressly granted, and 
which most, tlierefore, be presumed to have been within the 
intention 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 manicipal corporation has at common law few powers beyond 
those of electing, governing, and removing its membera, and reg- 
ulating its franchises and property. The power of its governing 
officers can only extend to the administration of the by-laws and 
oljier ordinances by which the body is regidated." * But without 
being expressly empowered so to do, they may sue and be sued ; 
may have a common seal ; may purchase and hold lands 
and other • property for corporate purposes, and convey [• 195] 
the same ; may make by-laws whenever necessary to ac- 
complish the design of the incorporation, and enforce the same by 
penalties ; and may enter into contracts to effectuate the corporate 
purpoites.* 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 

Intawtod uid can neTcr be intnuted with loii, 83 N. H. 424 ; HcMillu d. Lee 

WBj IcgJiletJTe power incontiiteDt or <Mn- Conniy, 8 Iowa, 811 ; La Fajrette v. Cnx, 

ttctiag with the Keaeral lawi of the land, 6 Lid. 38 ; Clark v. Dei Hoines, 19 Iowa, 

at dengntorj to thoae righu, either of 199; State n. Horriitown, 83 N. J. 67; 

paion DC property, which Itae coiutitutian Beaty v. Knowler, 4 Pet. IGS; Milli v. 

•ad ihe Keaeral lawi gnarantefl. They Gleaaon. 11 Wit. 470. In thia laat caie, it 

B* llrictly tubordinate Co tlie general waa held that theie corporadoni had lin- 

!■«>, and merely crMted la carry oat tlie plied power to borrow money Tor corpo- 

p or poeea of thoae lawi with more oertain- rate porpoiei. And Me ako Ketchum *. 

ty md riBeieocy. They may be and Mtme- Buffalo, U N. Y. 866. 
titBei are Intruited with powera which * Wlilcock cm Monidpal Corporalioni, 

properly appertain to priiate corpora- lit. 760. 

tieu, end in inch maEten their power ■ Angell & Amu on Corp. jj 111,239; 

aa Bwre manicipal corporBtiooi ceaaei." S Byd on Corp. IQZ; Stale v. Ferguion, 

GtT ot St Lonii >. Allen. IS Ho. 40a S8 S. U. 424. See Dillon, Man. Corp., 

13 Kent, 278, note i Ualitead f. Mayor, for an examination, in the light of (he 

te. of New Tork, 8 N. T. 430; Hodge* authoHtie*, ot the lereral power* here 

>■ BvCalo. 3 Denio, 110; New London v. Bwutioned. 
Bnlnwd, 22 Coon. US ; BUIa v. Fmga- 



by Google 



2S4 CONSTITnriONAI. liAiiations. [ch. vui. 

measure of the authority to be exercised. And the general dis- 
position of the courts in this country has been to confine munici- 
palities within the limits that a strict construction of the grants 
of powers in their cliartere will assign to them ; thus applying 
substantially the same rule that is applied to charters of private 
incorporation.^ The reasonable presumption is that the State has 

1 Under a dt^ charter which andior- caae. If thl* be wutiDg. Uieir proceed- 

ized the common couQCil to appoint iagt must be holden roid whenerer thej 

auettort tor the parpoM of awarding come in qneation, even collaterallj ; for 

damagM lo thoM through wboM propertj they are not Jadidal and luhjert to direct 

a street miglit be opened, and to aueii review on cntioran'. 2 Kyd on Corp. 101- 

■uch damage! on the property benefited, lOT." The power to create indebtednoa 

it wa* decided that the council were not doea not by impIicatioD cany with it a 

empowered to levy a tax to paj for the power to tftx for ita payment. JeflHet v. 

ether expenlei of opening the itreet Lawrence, 42 Iowa. 498. The approTing 

Reed t. Toledo, 18 Ohio, 161. So a power vote of tliecitlcen* cannot give an anthor- 

to enact by-laws and ordinance! to abate ity the law hai not conftrred. McPheraon 

and remove nuiiancea will not anthorize f. Foiter, 48 Iowa, 48. See Hackettitown 

the palling of an ordinance to jtrtoent v. Swackhamer, 87 N. J. 191. The power 

nuisancea, or to impoie penaltiei for the " to enact ordinance* neoeaaary Iot gov- 

creation thereof. Rocheater v. Collins, 12 eroment" doe« not authoriie (he grant of 

Barb. GfiB. A power to impote penalties the franchiae of a toll-bridge. WiUiama 

forcAffmefiMutoatreets would not anthor- v. Davidson, 48 Tex- I. In NaahTille v. 

ise tlie like penaltiei for ouTwicAnwnlf Bay, IB Wall 486, four of the eight joa- 

npon streets, where, under the general tices of the Supreme Court denied Iha 

laws of the Stale, the offences are recog- power of manicipalcorparalioos to borrow 

nixed as diScrent and distinct. ' Oiand money or issoe lecaiitic! unlesa eipreHly 

Rapidi V. Hughes, 16 Mich. M. Authority auUioriied. Says Bradta/, 1, : " Such ■ 

to levy a tax on real and personal estate power does not belong to a municipal 

would not warrant an income tax, eape- corporation as an incident of its CTealion. 

cially when such a tax is uniisaal in the To l>e potseseed it must be conferred by 

Slate. Mayor of Savanoab d. Hartridge, legislation, either express or implied. It 

6 Ga. 23. It will appear, therefore, that does not belong, as a mere matter of 

powers near akin to those expressly can- conrae, to local government to raise loana. 

ferred are not, for that reason, to be talien Such goverttments are not created for any 

by implication. And see Commonwealth such puiTHwe. Their powers are pre- 

E. Erie and N. £, Railroad Co., 27 Pena. scribed by their charters, and thon cbar- 

St. SSe. Tills rule has often been applied ters provide the means tor exercising tba 

where authority has been asserted on be- powers; and thecreationof speciflcioeana 

half ol a municipal corporation to loan excludes others." Compare Bank of 

its credit to corporations formed to con- Chillicothe v. Cbilllcothe, 7 Ohio, 864; 

atract works of internal improvement CUrk b. School District, 8 B. I. 199 ; Suie 

See La Fayette u. Cox, 6 Ind. S8. A r. Common Council of Madison, 7 Wia. 

power to paas ordinance* to prohibit the SSS; Hills v. OleaMn, 11 Wis. 470; Ham- 

saleorgiTingawayofintoxicatUig liquor* lin d. Headvilie, 6 Neb. 227. See alao 

in certain special cases is an implied NashvEUe u. Ray, IB Wall. 408; HUbaa v. 

exclusion of tbe power to prohltut the Slurp, 17 Barb. 486, 28 Barb. 228, and 27 

sale or giving away in other eaaes. SUto N. T. 011; Douglass i>. Plaoerville, 18 

V. Ferguson, 33 N. H. 424. In Dunham v. Cal. MS; Mount Pleasant «. Breeia, 11 

Rochester. 5 Cow- 462, 465, it Is udd: Iowa, SOD; Hooper c. Em«ry,14 Me.87&; 

"For all the purposes of jurisdiction. COP- Mayor, &c. of Macon r. Macon and 

poration* are like the inferior court*, and Weatem R. R. Co., 7 Oa. 221 ; Hopple b. 

most show thepowergiven them inevery Brawn, 18 Ohio St. 811; Lackland «. 



by Google 



CH. VUI.] THE O&ADBB OF MUNICIf AL QOVEBNMBHT. 235 

granted in dear and unmistakable terma all it has designed to 
grant at all. 

• It mufit follow that, if io any case a party assumes to [• 196] 
deal with a corporation on the supposition that it poa- 
sesses powers which it does not, or to contract in any other man- 
ner than is permitted by the charter, he will not be allowed, 
even though he may have complied with the undertaking on 
his part, to maintain a suit against the corporation baaed upon 
its unauthorized action. Even where a party is induced to enter 
upon work for a corporation by the false representaliooa of corpo- 
rate oflScera in regard to the existence of facto on which by law 
the power of the corporation to enter upon the work depends, 
these false repre&eutations cannot have the effect to give a power 
which in the particular case was wanting, or to vaUdate a con- 
tract otherwise void, and therefore can aSbrd 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 general rule, and the cases of unan- 

NorthFTD HiMonri StUroad Co., SI Mo. mutera of record, all penon* ««ra chargs- 
160; Smith r.Hone, 8 C»l. 624 ; Bennett able iricb notice or the law and inch pro- 
B, Borough of Birmingham, 81 Penn. St. ceedingi ; and that, nolwithitanding tbe 
16; Tncker v. Virginia Citjr, 4 Ner. 20; fiilse reprcMnutiont, no action would lie 
Leavenworth v. Norton, 1 Kan. 482 ; Kyle againat the citj for work done under the 
V. Halin, 8 Ind. 84 ; Jobnton v. Fblbidol- contract Swift v. Williuniburg, 24 
phia, 60 Penn. St 445 : Kniper v. Louia- Barb. 427. " If the plaintiff can reooTer 
ville, 7 Bnth, 696 ; Johnalon v. Louiirllle, oo the aUte of facta ho baa stated in hli 
11 Biuh, 627 ; Williamt v. DBTidion, 48 complaint, the mtiictiona and limllaliona 
Tez. 1 ; Borritt v. New HaTen, 42 Coon, which the legUlatarB. sought to impote 
174 ; Logan a. PTiie, IS Iowa, 524 ; upon the powen of the common council 
Keld V. Dea VtAom, 89 Iowa, 675; Vanoe wUI go for nothing. And yet these pra- 
V. Uttle Bock, 90 Ark. 4S6; English v. Tisions are matl«rs of substance, and were 
Cblcot Conntj, 2S Ark. 464; Pulleo v. designed to be of some serrice to tbe 
Baleigb, S8N. C. 451; Chi«holm d. Mont constituenU of the common conncil. Thej 
gomery, 8 Wooda, 664; Burmelster «. were Intended to protect the owners of 
Howard, 1 Wash. Ter. 207. lands and tbe ux-pajen of the cit;, at 
> The common conncil of Williama- well against the ftauda and impositions of 
burg had power to open, regulate, grade, (he contractor* who might be emplojed ti> 
and pare streeti, but only upon petition make these local lnipro«ement«,asagiiiwt 
^gned by one-tbtrd of the penoni own- tbe illegal acts of the common conndl 
ing lands within the assessment limit*. IhemselTes in employing the contractor!. 
A party entered into a contract with But if tbe plaintiS can recover in thli •«■ 
the corporation for improring a street, tion, of what value or efiect are all these 
npon the false representations of the safeguards! If the common council de- 
council that inch a petition had been aire to make a local improvement, which 
presented. Held, that the provision of tbe persons to be benefited thereby, and 
law being public, and all tlie proceedings to be assessed therefor, are onwiUing l« 
leading to a determination by the conndl have made, the conaent of the owner* 
to make a partionlar Improvement being my be whoUy dispeoted wilb, according 



by Google 



286 CONSTITUTIOKAI. LDHTATIOIira [CH. VIH. 

thorized actioD which may bind the corporation are exceptional, 
and will be referred to further on- 
Municipal coi-ponitions exercise the authority conferred upon 
them by law through votes of the corporators at public meetings, 
and through ofBcera and agents duly elected or chosen. The cor- 
porators are the resident electors, who, under the general laws of 
the State, may vote at the ordinary elections, though sometimes, 
in special cases, the franchise has been conferred npon taxpay- 
ers exclusively. A meeting of corporators for any purpose of 

hi the pbdotUTi tbeoty. Th« commoD pen«e, and to throw it od otben mbo are 

conocil hftve only t« represeot thu the Dot liable either in Ikw or moralt." 

proper petition ba» been preiented uid So, where the charter of DelrofI pro- 

tiie piapKT prooeedtngi have been taken, Tided that no public work ahould be 

la warrant the improTemuit. They then contrauled for or commenced until an 

enter into the coDtract. The improve- Baieaiment had been levied to defray the 

ment ia made. Thoie otiier lafe^uardR eipente, and that no EOch work BboDld 

for an aMewment or the eipente* and for be paid or contracted to be paid for, ex- 

reviewing the proceedingi may or may cept oat of the proceed* of the tax thna 

not be taken. But when the work I* com- levied, it wai held that the city corpora- 

pleted and U to be paid tor. It it found tion bad no power to make itwlf reipon- 

tliat the common council have no author- Bible for the price of any public work, 

ity to lay any aneatment or collect a dot- and that aucb work could only be paid 

lar from tlie properly beneQted by (helm- for by fundi actually in the hands of 

provement. The conu-aclor then briuga the dty treasurer, provided for the ape- 

his action, and recovera from the city the oific purpose. Ooodridi d. Detroit, 12 

damages he has luttained by the failure Mich. 279. But if the city receives the 

of the dty to pay him the contract price, fbnd and miaappropriates it, it will be 

The ground of his action is the falsity of liable. I^nsing r. Van Gorder, 2i Midi, 

the representationa made to him. But U6. 

the trutli or falaity of such repreaenta- Parties dealmg with &e agents or o0l- 

tloni might have been aacertnioed by the eers of municipal corporatloni most, at 

party with the use of the most ordinary their own peril, take notice of the limtta 

care and dlligenoe. The edstenoe of the of the poweri both of the municipal 

proper petition, and the taking of the ne- corporation, and of tiKise atsuming to 

oeseary initiatory step* to warrant the act on ita behalf. State v. KIrkley, 

improvement were doubtless referred to 20 Hd. 86; Oould b, Blerllng, 28 N. T. 

and recited in tlie contract made with the 456 ; Clark v. Dea Moines, 19 Iowa, IM ; 

pUintiir. And he thus became again Veeder d. Lima, 10 Wis. 280 ; Bryan 

directly chargeable with notice of the v. Page, 61 Tex, 682; a. c. 82 Am. Rep. 

content* of all Ibese papen. It la obvi- 687; Tainler v. Worcester, 12S Mass. 311; 

ons that the restrictions and limitations e. o. 25 Am. Sep. 00; Tliamas d. liich- 

imposed by the law cannot thtis be evaded, mond, 12 Wall. 840; East Oakland v. 

The consent ot the parties interested In Skinner, 04 U. S. Rep. 266; Dillon, Hm. 

•nch improvements cannot be dispensed Corp. $ S81. But a bona JiAe holder of 

with ; the respongibilily, which the con- municipal obligstioni has a right to rely 

ditions pretvdeni created by the itatute upon the truth of their i«citali, if they 

impose, cannot be thrown oCT in tliia appear to be warranted by the legiilatlon 

manner. For the efTect of doing so is to nnder whitA they are Issued. Coloma d, 

shift entirely the burden of making theM Eaves, 92 U. 8. 484 ; Walnut r. Wade, 

local improvement*, to relieve those on 103 U. 8. 688. 
wliom the law wught to Impote tlie vir 



by Google 



CH. YIII.3 THE GBADE8 OF MDNICIFAL OOTEBKUGyT. 287 

legal action must be regularly oooTened id sucb manner or at Buch 
time as maj have been preecribed by law. If the corporators 
were to come tc^ether at any time without legal permission and 
assome to act for the corporation, their action would be of no 
legal force or validity whatever. The State permits them to 
wield a part of the gOTerumeutal authority of the State, but only 
on the conditiona which the law has prescribed, and one of these 
is that it shall be exercised in an orderly manner, at meetings as- 
Kmbled upon due notice and conducted according to legal forms, 
in order that there may be opportunity for reflection, coosulta- 
tion, and deliberation.^ The notice may be either general, and 
given by the law itself, or it may be-special, and given by some 
corporate officer or agent. Annual meetic^ are commonly pro- 
vided for by general law, which names a time, and perhaps a 
place for the purpose. Of this general law every corporator must 
take notice, and the meetings held in pursuance of it are legal, 
even though a further notice by publication, which the statute 
directs, has been omitted.' But for special meetings the require- 
ment of special notice is imperative, and it must be given as the 
statate requires.' Sometimes it is directed to be given by publi- 
cation, sometimes by posted notice, and sometimes by personal 
notification. If the law requires the order or warrant for the 
meeting to spedfy its object, compliance is imperative, and the 
business which can be lawfully done at the meeting will be 
strictly limited to the object stated.* 

Special charters for corporations usually provide for some gov- 
erning body who shall be empowered to make laws for them 
vrithiD the sphere of the powers conferred, and perhaps to appoint 
some portion or all the ministerial and administrative officers. 

' Chamberikin b. DoTer, 18 Me. 466 ; s. c. 29 Am. Dec. 448 ; AtUnlic De Lalna 

•. C. 29 Am. Dec. 617 ; E*ana v. Oigood, Co. v. Ma«on, 6 R, I 46-3, 
ISMcSlS; School DUtrict ». AthertoD, ■ See People v. Co«lea, 13 N. T. S50; 

1! Uet. 106 ; Stone c. School District, 8 People i'. Uartwell, 12 Mich. 608 ; People 

CnrfL 592 ; Bethany v. Speiry, 10 Conn. v. Brenahm, 8 Cal. 477 ; SUte v. Orrw, 

300 ; State v. Harriion, 07 Ind. 71 ; Pike EG Wii. 285 ; Diahon v. Smith, 10 Iowa, 

Couatr r. Bowlaod, 04 Fenn. St. 288; SI2 ; State d. Jonei, IS Ind. 366. 
SUIe r. Pettinelt, 10 NeT. 181 ; Slate v. * Tattle v. Cary, 7 Me. 429. 
BoBtiell,S5 0bIoSt.lO; Rom >. Crockett, • Little e. Merrill, 10 Pick. 54S; Bart- 

14 La. Ann. 811 ; GoDldioK t>. Clark, 84 lett c. Eintley, 16 Conn. 827 ; Atwood v. 

H. H. 146. See Stow ■>. WIk, 7 Conn. Lincoln. 44 Vt. 332 ; Holt'a Appeal, 5 B. 

S14; B. c. 18 Am. Dec. 90; Pierce v. LOOS; Reynold* v. New Salem, 6 Met. 

New OrloUM BuUOiig Co., 9 La. 897 ; 840 ; Bowen e. King, 84 Vt. 156 ; Hainet 
e. School DliUict, 11 U«, 240. 



by Google 



288 C0B8TIIUTI0BAL LIUIIATIOB8. [OH. VIU, 

In the C8M of towns, school districto, &o., the power to make 
laws is largely confided to the corporators assembled in annual 
meeting ; ^ and in the case of counties, in some coanty board. 
The laws, whether designated orders, resolutions, or ordinances, 
are more often in law spoken of as by-laws, and they most be jus- 
tified by the grant of power which the State has made. What- 
ever is ultra viret in the case of any delegated authority, is of 
course void. 

Whatever is said above respecting notice for corporate meet- 
ings is equally appUcable to meetings of the official boards, with 
this exception : that as the board ia composed of a definite num- 
ber of persons, if these all convene and act they may thereby 
waive the want of notice. But the meeting of a mere majority 
without notice to the others would be without legal authority.* 



[• 197] * Corporationt hy PreBcription and Implication. 

The origin of many of the corporate privileges asserted and en- 
joyed in England is veiled in obscurity, and it is more than prob- 
able that in some instances they had no better foundation than 
an uainterruptod user for a considerable period. In other cases 
the royal or baronial grant became lost in the lapse of time, and 
the evidence that it had ever existed might reat exclusively upon 
reputation, or upon tiie 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 
pretcription ; that is to say, the exercise of corporate rights for a 
time whereof the memory of man runneth not to the contrary ia 
sufficient evidence that such rights were once granted by compe- 
tent authority, and are therefore now exercised by right and not 
by usurpation.' And this presumption concludes the crown, not- 
withstanding the maxim that the crown shall lose no rights by 
lapse of time. If the right asserted is one of which a grant might 
be predicated, a jury is bound to presume a grant from that pre- 
scription.* In this particular the claim to a corporate franchise 

1 Sw WllUuni D. RoberU. SS nt. 11. Robie v. S«dgir1ck, SG Barb. 819. Sea 

■ Gordon n. PrNton.lWktto, 886; S.O. Londonderry n Andorer, 28 Vl. 418. 

26 Am. Dec 75. * Mnjor of Hall v. Horner, Cowp. 104, 

* Inbodtiction to Willcock on Mootci- per Lord MmuJUd. Compare People v. 

pal Corporatioiu ; The Kin^ v. Major, Haynard, 16 Wch. 463 ; SUte e. Bunker, 

&C. of Stratford upon Atod, 14 Ban, 848; 69 He. 866. 



by Google 



CH. vni.] THE GRADES OF MUNICIPAL OOYERNimNT. 239 

stMida on the same ground as any claim of private right which 
requires a grant for its support, and la to be sustained under the 
aame circumstances of continuous assertion and enjoyment.^ And 
even the grant of a charter hy the crown will not preclude the 
claim to corporate rights by prescription ; for a new charter does 
not extinguish old privileges.* 

A cor[K>ration may also be established upon presumptive evi- 
dence that a charter has been granted within the time (^ 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 verdiot finding the corporate existence. " There is a 
great difference," says Lord Matufield, " between length of time 
which operates as a bar to a claim, and that which is only nsed by 
way of evidence. A jury is concluded by length of time which 
operates as a bar ; as where the Statute of Limitatbns is pleaded 
in bar to a debt : though the jury is satisfied that the debt is due 
and unpaid, it is still a bar. So in the case of prescription. If 
it be time out of mind, a jury is bound to preclude the right from 
that prescription, if there could be a legal commencement of the 
right. But any written evidence, showing that there was a time 
when the prescription did not exist, is an answer to a claim 
founded on prescription. But length of time used merely by way 
of evidence may be left to the consideration of the jury, to be 
credited or not, and to draw their inference one way or the 
other according to circumstanoea." " The same ruling has been 
had in several cases in the courts of this country, where corporate 
powers had been exercised, but no charter could be produced. In 
one of these cases, common reputation that a charter had once 
existed was allowed to he given to the jury ; the court remarking 
upon the notorious &ot that two great firea in the capital of the 
colony had destroyed many of the public records.* In other 
cases there was evidence of various acts which could only law- 
fnily and properly be done by a corporation, covering a period of 
thirty, forty, or fifty years, and done with the knowledge of the 

I 2 KeDt, 277 ; Angell and Anm on ■ Major of Hull v. Hornw, Cowp. IH, 

Corp. ) 70 ; 1 Kyd on Corp. U. 108 ; citing, kmoDK otbvr bum, Bcdla o. 

* Haddock'! Caie, T. RaTin. 489 ; B«ftrd. Vl Co. 6. 

Tbe King v. Hajor, Ac. of Stratford * Dillinghaia v. Snow, 5 HaM. M7. 

apon Atod, 14 Eaat, 84S ; Bow v. All«n>- And m« Bow v. AUenatoura, S4 N. H. 

town, 34 N. H. 861. Bet Janeioii n. Feo- 861 ; BaiMtt v. Porter, 4 Cu«h. 487. 
pie, 19 ni. 257. 



by Google 



240 CONSTITDTIOKAL LIHITATIONS. [CH. VXU. 

State and without question.^ The iofereoce of corporate powers, 
however, is not one of law ; bnt is to be drawn as a fact bj the 
jury." 

Wherever a eorponttion ia foand to exist by prescriptioD, the 

same rule as to construction of powers, we apprehend, 

[• 198] would apply as in other oases. * The presumption as to 

the powers granted would be limited by the proof of the 

usage, and nothing could be taken by intendment which the 

usage did not warrant. 

Corporations are also said sometimes to exist by implication. 
When that power in the State which can create corporations 
grants to individuals such property, rights, or franchises, or im- 
poses upon them such burdens, as can only be properly held, 
enjoyed, contiuned, or borne, according to the terms of the grant, 
by a corporate entity, the intention to create such corporate entity 
ia to be presumed, and corporate capacity is held to be conferred 
so far as is necessary to effectuate the purpose of the grant or 
burden. On this subject it will be sufficient for our purpose to 
refer to authorities named in the note.' In these cases the rule 
of strict construction of corporate powers applies with unusual 
force. 



Municipal By-Lawi. 

The power of municipal corporations to make by-laws is limited 
in various ways. 

1. It is controlled by the Constitution of the United States and 
of the State. The restrictions imposed by those instruments, 
which directly limit the legialative power of the State, rest equally 
upon all the instruments of government created by the State. If 
a State cannot pass an ex pott facto law, or law impairing the obli- 

1 Stockbridge v. Wnt Btookbridge, 12 pontlon : " Comerraton of Birar Tone 

Mau. 400 ; New Boiton r>. Danbarton, c Ash, 10 B. & C. S49 ; b. o. 10 B. ft C. 

12 N. H. 409, and 16 N. H. 201 ; Bow 383, dting cue of Sutton Hoapilal, 10 Co. 

v. AUenMown, 34 N. H. 361 ; Trott «. 28 ; per KfM, Chancellor, in Denton d. 

Warren, 11 He. 227. Jacluon. 2 Jobna. Ch. 320; Cobum r. El- 

* New Boaton b. Dnnbaitan, 16 H. H. lenvrood, 4 N. H. 99; Alkiiwon v. Bemia, 

201 ; Bow u. Allenstown, S4 N. H. 361 ; II N. H. 44 ; Nonh Herapatead e. Hemr>- 

Mayor of Hull v. Horner, 14 Eaat, 102. atead. 2 Wend, 100 ; Thonua r. Piikin, 2S 

■ Dyer, 400. cited by Lord f rayon, in Wend. 9 ; per Shaw, Ch. J., In Stebhin* r. 

BoMell V. Men tti Devon, 2 T. B. 607, and Jennlnga, 10 Pick. 172 ; Mabon; v. Bnik 

io 2 Kent, 276 ; Vmer'i Abr. tit " Cor- of the Sl*l«, 4 Ark. 620. 



by Google 



OH. Tin.] TBB QBADSS OF HDNICIPAL QOVEBKMBNT. 241 

gatioQ of contracts, neither can any agency do bo which acts under 
the State with del^ated authority.' By-laws, therefore, vhich in 
their operation would be ex post facto, oi violate coatracts, are 
not within the power of municipal corporations ; and whatever 
the people by the State constitution have prohibited the State 
government from doing, it cannot do indirectly through the local 
governments. 

2. Municipal by-laws must also be in harmony with the general 
lawe of the State, and with the provisions of the municipal char^ 
ter. Whenever they come in conflict with either, the by-law 
must give way.* The charter, however, may expressly or by 
necessary implication exclude the general laws of the State on 
any particular subject, and allow the corporation to pass local 
laws at discretion, which may differ from the rule in force else- 
where.' But in these cases the control of the State is not ex- 
eluded if the l^slature afterward see fit to exercise it ; 
nor will conferring a power upon a * corporation to pass [* 199] 
by-laws and impose penalties for the regulation of any 
specified subject necessarily supersede the State law on the same 
subject, but the State law and the by-law may both stand tc^ether 
if not inconsistent.* Indeed, an act may be a penal offence under 
the laws of the State, and further penalties, under proper legisla- 

> AngeU&AmMon Corporation*, S 882; 69; CoDweU v. O'Brieti, 11 Ind. 419; 

StajveuDt V. Mayor, Ac. of New York, T March v. Commonwealth, 12 B. Honr. 26. 

Cow.588; Brooklyn Central RtOlrMul Ca See B«]dwipB. Gran, lOMo.410; Cowen 

V. Brookljn Citj Hailroul Co., 82 Barb. r. Weit Troj, 43 Barb. 4Bi State v. 

S6Bi Illinoii Conference Female College Georgia Medinl Society, B8 Oa. 608; 

>. Cooper, 26 01. 148. The la«t waa a Peit«t«eld ■>. Tickm, 3 Cold. 206; Maya 

can where a by-law of an adDOIional r. Cincinnati, 1 Ohio SL 208; Wirth ■. 

oorpontion waa held Told, ai vloladng Wilmington. 68 N, C. 24 
the obligation of a contracl preiioualy ■ State v. Clarke, 1 Dutch. 64; Stat* 

eotered into by the corporation in a cer- ti. Dwyer, 21 Uinn. 612; Covington b. 

tiftcaie of tchoLanhip wliich it had iMned. Eaat St Looit, 78 lU. 648 ; CoulterTllle 

See bIbo Davenport, &c. Co. d. Darenport, v. Gillen, 72 III. 699. Fecoliar and excep- 

13 Iowa, 229 ; Saving Society v. Philadel- tinnal regulatioiw may even be made ap- 

phi«, 31 Penn. St. 176; Haywood e. S»- plicable to particular portloni ot a dty 

vannab, 12 Ga. 404. , only, and yet not be invalid. Goddard, 

I Wood V. Brooklyn, 14 Barb. 426; Petitioner, 16 Pick. 604; Commonwealth 

Mayor, Ac of Hew Tork s. Kicboli, 4 b. Patch, QT Haai. 221, per Boar, J.; 8t 

Rill. 209 ; Pelertbnrg >. Metiker, 21 BL Louis v. Weber, 44 Ha 647. 
S06; Sonthport v. Ogden, 23 Conn. 128; * City of St. LonU ■. Benti, 11 Mo. 

Andrewa v. Ininrance Co., 37 Me. 266 ; Si ; City of St Lonli v. CaSeraU, 24 Mo. 

Canton v. Nlrt, 9 Ohio St 439 ; Can v. H ; Boger* u. Jaatt, 1 Wend. 2B1 ; Levy 

St. Loaia, 9 Ho. 191 ; Commonwealth e. d. State, 6 Ind. 281 ; Mayor, Jic. of Mo- 

Erie and NortlieMt Railroad Co., 27 Peon, bilee. Allaire, 14 Al*. 400; Elk Pmnt d. 

St. 889; Burlinftoo v. KeUar, 18 Iowa, Tangn, 1 Dak. 113. 

a 



by Google 



242 CONSTITDTIOKAL LIHITATI0N8. [CH. TQI. 

tive authority, he imposed for 'ita commission by munioipa} by- 
laws, and the enforcemeut of the one would not preclude the 
enforcement of the other.^ 

' Sach i* the cleu" weight of ^nthot- Ji alike nnimporunt. Tlie oAnce kgminat 

ity, thojgh the dedalona are not uniform, the corporaiion and the State we have 

We quote from Rogen v, Jonei, 1 Wend, leen are dUtiDgaiihable and wholl; dU- 

261 : " But It i> aaid that tlie bj-la« of a connected, and tlie proaecution at the aait 

town or corporaiion is void, if the legisLa- of eacli proveeda npoQ a diSerent hypoth- 

ture l:ave regulated Hie lubject by law. eiii ; the one contemplatea the obaerr- 

It tlie legialalure have paaacd a law regu- ance of the peace and good order of the 

lating aa to certain things in a cltj, I city; the other baa a more enlarged ob- 

appreliend Ihe corporation are not there- ject in view, the maintenance of tlie peace 

by restricted from making further regu- and dignity of the State. " See also 

tationa. Caaea of this kind have oo- Mayor, &c of Uobile v. Rouse, 8 Ala. 

curred and never been questioned nn 616 ; Intendant, &c of Greensboro' r. 

that fTonnd; it is only to notice a case Mullini, 13 Ala. 841; Mayor, Ac. of New 

or two out of many. The legislature York b. Hyntt, 3 E. T>. Smith, 15a i 

have imposed a penalty of one dollar for People v. Stevens, 13 Wend. 341 ; Blatcl^ 

aervile labor on Sunday ; the corporation ley v. Moser, 15 Wend. 215 ; Amboy o. 

of New York have passed a by-law im- Sleeper, 81 HI. 409; Slate c. Crummey, 

poaing the penalty of Ave dollars for the 17 Minn. 72; Slate d. Oleson, 26 Minn, 

tame offence. Ae to storing gnnpowiler 507 ; Greenwood c. Stale, B Bax. LOT ; a. c. 

in New York, the legislalure and corpora- 32 Am. Itep. 639; Brownville r. Cook, 4 

Hon hare each imposed (he same penalty. Neb. 101 ; Levy v. State, 6 Ind. 281 ; Am- 

Suits to recover the penalty have been bnise u. Stale, G Ind. Sfil ; Lawrencebnrg 

■lutained under the corporation law. It ii. Wuest, 16 Ind. 337 ; St Louis i>, Bentz, 

la believed that the ground baa never 11 Ho. 61 ; St, Louis c, Cafierala, 24 Mo. 

been talcen that there was a conflict with M ; State r. Gordon, 60 Mo. 3B3 ; Sliafer 

the Sutelaw. One of llieae cases ia re- e. Mumnia, 17 Md. 331; Brownville ». 

ported in 12 Johns, 122. The question Cook, 4 Neb. 101; State c Ludwig, 21 

was open far diacuaaion, hut not noticed." Minn. 202; Bloomflelil b. Trimble, 64 

In Mayor, ka. of Mobile v. Allaire, 14 Jowa, 399; s. c. S7 Am, Rep. 212; Chi- 

Ala. 400, the validity of a municipal by- cago Packing, &c Co. v. Chicago, 88 Dl. 

Uw, imposing a fine of fifty dollars for 221 ; s. o. 30 Am. Rep. 646 ; Fennell r. 

an assault and battery committed within Bay City, 86 Mich. 180; Hcltea t>. Ainel^ 

tlie city, waa brought in question. Coliier, [cos, 69 Ga. 168, On the other hand, it 

Ch, J., iaya(p. 40S): " The abject of the was held in SUte c. Cowan, 29 Mo. 330, 

power conferred by the charter, and the thatwliere amumcipalcorporatiomraaaii- 

pnrpose of the ordinance Itielf, was not to tliorized to take cogiiiiance of and puniah 

puntah for an ofience against the criminal an act as an offcnue against its ordinances 

JDstice of the country, but to provide a which was also an offence against the 

mere paiia regulntion, fbr the enforcement general laws of the State, and this power 

of good order and quiet within the limits was exercised and the party punished, he 

of the corporation. So far na an offence could not afterwards he proceeded against 

hit been committed againat the public -under the Slate law. "The conslitu- 

peace and morals, the corporate author!- lion," aay the court, "forbids that a pet^ 

ties have no power to inflict punishment, son shall he twice punished for the same 

and we are not informed that they have offence. To hold that a party can be 

attempted to HTTogate it. It is altogether prosecuted for an act under Ihe State 

immaterial whether the State tribunal has laws, after he haa been punished far the 

interfered and exercised its powers in same act by the municipal corporaiion 

bringingihedefendant heforeit toanawer within whoae limits the act was done, 

for Ihe nesnult and battery ; for whether would he to overthrow the power of the 

he ha« there been punished or acqnitted Oeneral Awembly to create corporatioiu 



by Google 



CH. Tin.] THE Q&ADBS OP UXTNICIFAL OOTEBNMBNT. 248 

*8. Municipal by-1awB must also be reasonable. When- [* 200j 
ever they appear not to be bo, the court must, aa a mat- 
ter of law, declare them void.' To render thera reasonable, they 
should tend ia some degree to the accomplisbmeat of t^e 

to aid Id the muag^meat of the idlain of or anj ottxr ttandard weight that thonld 

the State. Fora power in the State In pan- be agreed upon. It wai held thM th« 

iah, after a pnoUhmenl had been inflicted city of New York had no power to pro- 

b; the corporate authoritiea, conid only hibit under a penalty the aale of such hay 

And a aupport in the aMamplion that all without inapection ; thia being obrionily 

theproceedingt on thepartof thecorpora- inconuttent with the ■ tat Dt« which gare 

lion were null and Told. The circnmatance a right to lell if its regulations were com- 

that the mnnicIpAl authoritle* have not plied with. Mayor, Ac of New York e. 

exduiiTe juriidiction over the acts which Nichols, 4 Hill, 209. 

coQititute offence* within their limits does The penal enactments of a corpora- 

not aDect the question. It ia enough that tion, like thoae of the State, must be seV' 

their jurisdiction is not eicluded. If it eral (De Ben b. Qeraid, i Ia Ana. 80), 

exists, — although it may be concurrent, — and will be itrictly construed. St LoniB 

If it Is eierdsed, it is Talid Hnd binding so b. Goebel, 82 Ho. 295. 

long as it is a constitutional principle that ' 2 Kyd on Corporations, lOT ; DaTies 

DO man mi^' be punished twice for the v. Morgan, 1 Cromp. £ J. 687; ChambeF- 

same oDtnce." This case seems to be lain of London n. Complon, 7 D. & R. 

•upportcd by Bute n. Welch, 86 Conn. 697; CUrk e. LeCren, SB. AC. 62; Gas- 

316, and the case of Slaughter v. People, ling n. Teley, 13 <). B. 828 ; DDDham v. 

cited helow, goes stiJl farther. Those Rochester, 6 Cow. 462; Mayor, Ac. of 

which hold that the party may be pun- Memphtsv. WInSeld,8Humph.T07i Hay- 

lahed under both the State and the mu- den v. Noyes, 6 Conn. 891 ; Waters v. 

nicipal law are within the principle o( Leech, 8 Ark. 110; White b. Mayor, 3 

Fox V. State, 6 How. 410; Moore v. Peo- Swan, 864; Ez parte Burnett, 30 Ala. 

pie, 14 How. 13. And see Phillips t>. Ml; Craig v. Burnett, 32 Ala. 728; An*. 

People, 56 m. 429 ; State b. Rankin, 4 tin r. Murray, 16 Pick. 121 ; Ooddard. Pe- 

Cold. 145: Ex parU Biebold, 100 U. S. tictoner, 10 Pick. 604; Commonwealth e. 

871. Id Jeflhrson City n. Courtmire, 9 Worcester, B Pick. 461; Commissionen 

Uo. as:; it was held that anihority Ma t>. Oas Co., 13 Penn. St. 818; State v. 

municipal corporation to "regolala the Jersey City, 29 N. J. 170; Gallatin v. 

police of the city" gaxe it no power to Bradford, 1 Bfbb, 209; Western Union TeU 

paag an ordinance for the punlihraent of egraph Co. a. Carew, 16 Mich. 626; 5tat« 

indictable oOtnces. To the same effect v. Freeman, 86 N. H- 426; Pedrick «. 

is Stale B. SaTannah, 1 T. U. P. Charl. Bailey, 13 Gray, 161 ; SL Lonis c. Weber, 

SS5; a.o.4 An). Dec 708; Slanghtero. 44 Ho. 660; Peoria o. Calhoun, 29 III. 

People, 2 Doug. (Mich.) 334; Jenkins e. 817; SL Paul h. Traeger, 28 Minn. 348; 

Thomasiitle, 36 Ga. 146; Tason o. An- a. c. 83 Am. Bep. 403. But when the 

fosta, 88 Oa. 542; Reich n. State, 68 Ga. question of the reasonableness of a by- 

78; Washington v. Bammond, 76 N. C. law depend* upon evidence, and it relatea 

88; N^ew Orleans v. Miller, 7 La. Ann. to a subject within tlie jurisdiction of the 

WI- corporation, the court will presume it to 

Wherean act is expressly or by implies- be reasonable until the contrary is shown, 

tion permitted by the State law, it cannot Commonwealth e. Patch, 97 Mass. 221. 

be forbidden by the corporation. Thus, And see St. Lonis n. Weber. 44 Mo. 547; 

the statutes of New York esUblished eer- Oluon r. Mtlwsukee, 30 Wis. 316 ; St. 

tain reguUlions for tho putting np and Louis r. Knox, 6 Mo. App. 347. To be 

markingofpressedhay.andproTidedthat reasonable, by.laws should be eqnal in 

such hay might he sold without dednc- their operation. Tugman tr. Chicago, 78 

tion for tare, and by the weight h marked. Hi. 405 ; Barling e. Wesl^ 20 Wis. 807. 



by Google 



844 ocmiffiTUTioNAi. LoniAiiom. [oh. Tin. 

[* 201] objects for wfaich the corporstion * was created and its 
powers conferred. A by-law, that peraons chosen anna- 
allj as stewards of the Society of Scriveners should furnish a 
dinner on election day to the freemen of the society, — the free- 
meo not being the electors nor required to attend, and the office 
of steward being for no other purpose but that of giving the din- 
ner, — was held not connected with the business of the corporation, 
and not tending to promote ite objects, and therefore anreasonable 
and void.' And where a statute permitted s municipal corpora- 
tion to license the sale of intoxicating drinks and to charge a 
license fee therefor, a by-law requiring the payment of a liceDse 
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 baa power to prohibit the eanying on of danger- 
ous 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.' And a right to license an employment does not 
imply a right to charge a license fee therefor with s view to reve- 
nue, unless such seems to be the manifest purpose of the power ; 
but the authority of the corporation will be limited to such a 
charge for the license as will cover the necessary expenses of i^u- 
ing 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 

> Society or Scrlreiwn r. Brooking, S dmDgBrooi lo c&uiing or promoting Htm 

Q. B. 96. Se«, on tbii gmeral labject, doea not ftutborite ui nrdinftnce prohib- 

DUloD, Hno. Corp. Sf 261-204. fting th« erection of wooden building! 

» £xparf<Bnmett, 90AU.461;Cnig within the rity, or to limit the ain of 

e. Bnmett, S2 A1*. 72a A b;-Uw do- bnildinge which Individnek ihall be pe> 

duingtlielceepiDgonhandofintoKtcadng mitted to erect on tlidr own premiiet. 

liquon m nnfianoe wa* held unreuonable Ibid. An ordinance for the deitraction 

and void In SnliiTtu) p. Onetda, 01 III. 243. of property m a nniunce withoat a judi- 

Tliat which is not a nuiaence In fkct can- etal liearing ia void. Du«t r. People, 61 

not he made tnch by mnnlcipal ordinance. HI. 260. An ordinanoe tar the arreat and 

Chlcatio. to. B. E. Co. i-. Joliet, 79 Bl. 26 ; Imprieonment without warrant of a per- 

pM(, ■696, note. eon refotlag lo auiat In eitinguiihlnK a 

' Uayor, &e. of Hadion o. Thome, 7 Are i* roid. Judeon v. Beardon, IB Minn. 

Paige, 301. A power to prerent uid ng- 481. 
ulate the canyiog oa of nwaafactwea 



by Google 



oa. Vm.] THE GRADES OF MONIOIPAL QOVEBKHBirr. 245 

plainly show an intent to confer that power, or the municipal 
corporation cannot aaaume it.' 

• A by-law, to be reasonable, should be certain. If it [• 202] 
affixes a penalty for ita violation, it would seem that such 
penalty should be a fixed and certain sum, and not left to the 
discretion of the officer or court which is to impose it on oonvio- 
tion ; though a by-law imposing a penalty not exceeding a certain 
Bum 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- 

I Sute r. Koberta, 11 Qitl & J. 606 ; oouf mlon and difficulty to refer die coi^ 

liaji t>. CindniiKtl, 1 Obio 8t. 268; Cin- porate snihority to die tuiog power, 

dnn»li v. Biytoa, 16 Ohio, 026; Free- rather tbsD ezclusirely to the power of 

holden v. Bu-ber, N. J. Eq. U; Kip e. reguiation. See DuQliam v. Tnuteea of 

Paterwn.SQN. J.^iOe; State d. Hoboken, Rochester, 6 Co«. 46-2, npon the extent 

41 N. J. 71 ; Bennett v. Boroagh of Bir- of the police power. Feea which are im- 

mingham, 81 Penn. Bt. 16; Common- posed under the impection lawi of the 

wealth V. Studder, 2 Cuah. 562; Chilren Sute are akin to license fees, and if ex- 

V. People, 11 Mich. 43; Mayor, Ac. of acted not for reTenae, but to meet the 

Mobile V. Tuille, S Ala. 187 ; Juhnion v. expenses of regulation, are to be referred 

Philadelphia, 60 Penu. St. 44G; State v. to the police power. Cincinaati Gsa Light 

Herod, 20 Iowa, 128 ; Burlington d. Bam- Co. c. State, IB Ohio St. 237. A city can- 

gardner, 42 Iowa, 078 ; Mayor, Ac of not exact a license fee from a national 

New York e. Second Arenue R. R. Co., bank. Carthage p. National Bank, 71 He. 

82 K. Y. 261 ; Home Ins. Co. v. Auguita, 60B ; «. o. 86 Am. Rep. 494. On this svb- 

fiO Oa. 630; Cairo v. Broas, 101 111. 476; ject in genera), see petl, •496; Dillon, 

Unhlenbrinck n Conmlstioocrs, 42 M. J. Mnu. Corp. {§ 291-808. 
864; e. a 36 Am. Rep. 618. Nererthe- * Mayor, &c. of HunUvlIle n. Phelps, 

teaa, tlie coarts will not inqnire rery 27 Ala. 66, orerruling Mayor, &e. of Ho- 

doeely Into the expense of a license with biie n. Ynille, 3 Ala. 137. And see Flpar 

« view to adjudge it a tax, where it doea v. Cliappell, 14 H. ft W. 824. 
Dot appear to be unreaaonable in amount * The following are cases In whidi 

in view of its purpose a* a regnlaliou. municipal ordinances hare been passed 

Ash r. People, 11 Mich. 347 ; Tan Baaien upon and their reasonablenets dete^ 

V. People, 40 Mich. 468 ; Johnson v. Pliil- mined : MarkeU .- Prohibiting sales outside 

adelpliio, ao Penn. Sc44&; Buiiington v. ol. Reasonable — Buffalo n. Webster, 10 

Putnam Ins. Ca, 81 lows, 102 ; Bosun c. Wend. 96 ; Bash v. Seabury, 8 Johns. 418; 

Schaffer, 9 flck. 415; Welch r. Hotch- BowUng Green v. Canon, 10 Buih, 64; Le 

kiss, 89 Conn. 140; Sute v. Hoboken, Claire d. Davenport, 18 Iowa, 210; Winns- 

41 N. J. 71. And in some cases it has bora d. Smut, 11 Rich. L. 561 ; St. Louis 

been held that license fee* might be d, Weber. 14 Ho. 647. Unreasonable — 

imposed under the police power with a Caldwell n. Alton, 88 III. 416; Blooming- 

<riew to operate aa a realriction upon the ton d. Wah1,4dni.48e; Bethunev. Hayes, 

business or thing licensed. Carter d. Dow, 26 Qa. 600; Requiring pemiisslon to oiy 

le Wis. 299 ; Tenney c. Len^ 19 WU. 666. cupy stands. Reasonable — Nightingale. 

See State i>.Cassid7,22 Minn. 312; Yonng> petitioner, II Pick. 167. Imposing tax on 

Mood a. Sexton, 82 Mich. 406; B.a20Am. stands. Reasonable — CincinnatiD.Bock- 

Bep. 664. But in sudi cases, where the Ingham, 10 Ohio, 267. Unreasonable — 

right to impose such license fees on be Kip a. Patenan, 26 N. J. 296. LieeiuiMfi 

fairly dednced from the charter, it would JUobtm .- Dnraasonable — Dunham v. 

pertwpa be safer and leas liable to lead to Rochester, 6 Cow. 462; St FkdI e. Tne- 



1 by Google 



246 CONSTITQTIONAI. UMIIATIONS. [CH. VOL 

Btcaint of trade, — like the by-law that no person shall exercise 
the art of paintei in the city of London, not beii^ free of the 

gM, 25 Minn. 248 ; ». o. 83 Am. R. 462 ; Meyerm b. Chic«go. B. I. & P. Co. (Iow»), 

MnhleobriDck v. CommuaioDon, i'i S. J. 10 S. W. Bep. 896. Kequiring flagmui 

364; s. 0.36 Am. Hap. 618; Fromoier d. «t croiBin^ which is not dangeroiu. Dn- 

Bichmond, 81 Gnlt. 648; Buliug v. reaionable — Toledo, Ac. R.B.Co.o.Jack. 

Wm(, 29 Wi«. 807; •. o. 9 Am. Rep. Bonyille.e; I1L87,- b. c. 16 Am. Rep. 811. 

578. FrohibiliogwKgoniituidiDginnMr- Frotaibiting remaral of mow by atreet 

ket Unresionable — CommoDwealth n. nilway companie* wicboat coaunt of 

Brook«,109MaH,&66; Commonwealths, atreet superintendant. ReaaonabiB — Un- 

Wilkiii»,121MaBB.36a. Auction :Pm]iih- ion Railway Compdny o. Cambridge, 11 

iting lale* at, on (treela. Rea*oiuble— Allen, 287. Burial*: Prohibiting in 

White«..Kent,110Mo8t.650. Aftoraun- town. Unreasonable — Aub tin r. Mor- 

leL Unreaaonable — Hftyeap, AppleWn, ray. 16 Pick. 121. Prohibiting within oer- 

24 Wit. 642. Impoatng heary Ucenie on. tain limiu. ReaaoDable — Coatei v. New 

Reaaonable — Decorah s. Douitan, 38 York. 7 Cowen, 68& Subjecting private 

Iowa, 96 ; Wiggina e. Cblc«go, 68 111. ST2. oemeteriei to control of city ieiton. Un- 

Fretwell e. Troy, 18 Kan. 271. Making reaaonable — Bogert v. IndianapoLii, 13 

it penal to lell without a licenie. Goslien Ind. 184. Reqairing city lezlon to ei- 

V. Kern, 63 Ind. 468. Saiootu and Batau- pend 9600 on the cemetery and to bury 

nwCc Cloaing {br the night. Reaaon- paupers fi«e. Unreaaonable — Beroujolin 

able — PlaCterille B. Bell, 48 Wii. 488; e. Mobile, 27 Ala. 68. FinLlmiU: Bt- 

Smith B. Knoiville, 8 Head, 246; fitKte t«bli»hing. Reaaonable — Ring b. Dsren- 

B. Welch, 86 Conn. 215; SUte o. Fr«e- port, 98 III. 806; n. o. 38 Am. R. 89; 

man, 38 N. H. 426 ; Maxwell v. Joneaboro, Monroe b. Hoffman, 29 Ia. Aon. 661 ; b. c. 

11 Heiak. 267 ; Baldwin v. Chicago, 68 Ul, 29 Am. Bep. 346 ; Reapublica v. Dnquet, 

418. Unreaaonable — WacdD.GreenTiile, 2 Yeatea, 493; Wadleigb o. Gilman, 12 

8 Baxt. 228; a. c. 36 Am. Hep. 700. Cloa- Me. 403; s. o. 28 Am. Dec. 188; Brady 

Ing on certain daya. Unreaaonable — b. Northweatem Ina. Co., 11 Mich. 426; 

aiillar.Joneaboro,8Baxt. 247. On Sun- Salem b. Maytiea, 123 Maai. 3T2 ; Troy b. 

day. Reaaonable — GabelB. HoDalon,29 Winlert, 4 Thomp. & C. (N. Y.) 266; 

Tex. 836; Stats d. Ludwig, 21 Minn. 202; McKibbin n. Fort Smilb, 86 Ark. 362. 

HudtOQ B. Geary, 4 B. I. 486, Forbid- Bequiring a bnilding ticenae fee, Rea- 

db)g aale of liquor at reataurantB. Bea- aonable — Welch b. Holchkiaa, 39 Conn. 

aonable — State e. Clark, 28 N. H. 176. 140; a. o. 12 Am. B. S83. Eo<aa of m 

Haehiq Caniagti .■ Reaaonable — To reg- Faae: Reaaonable — ProhiblUng keep- 

Ulate fai«t. Commonwealth o. Gage, 114 ing of. Stale o. Williams, II S. C, 288 ; 

Haas. 828. To put under direction of Childreas b. Mayor, 8 Sneed, 358. Iro- 

police. Commonwealth o. Mallhews. 122 posing penalty on owner of, McAlister b. 

Maaa, 60: St. Paul u. Smith, 27 Minn. .164! Clark, 33 Conn. Bl. Licenaing. State d. 

». o. 88 Am, Rep. 296. To exclnde ft^m Clarke, 64 Mo. 17 ; b. c. 14 Am. Rep. 471 ; 

certain a Ireeta. Commonwealth B.Stodder, Arresting and fining lewd women. Shafer 

2 Gush. 602. To require a license. Brook- n. Mumma, 17 Md. 881. Unreasonable- 

lyo e. Brealin, 67 S. T. 691 ; City Coun- Demoliahing. Welch b. Stowell, 2 Doug, 

oil B. Pepper, 1 Rich. L. 864; Frankfort, Mich. 832. Forbidding proatitute occn- 

&c. K. Oo. r. Philadelphia, 68 Penn. St. pying any room in city. MiUikeo u. City 

119; Si. Louia b. Green, 70 Mo. 662. Council, 64 Tex 388; ». c. 38 Am. Rep, 

Unreasonable- To grant one peraon ex- 629. Slaughter Hcatai Prohibitingin cer- 

cloaiTc right to run omnibuaea in the city, tain parta of city. Reasonable — Cronin 

Logan V. Pyne. 48 Iowa, 624 ; 8. c. 22 Am. v. People, 82 N. Y. 818 ; i. c, 37 Am. Rep, 

Rep. 261. RnilroadM.- Regulating apeed 664; Metropolitan Board of Health b. 

of. ReaK)nab1e—Penn>y Iran I a Company He later, 37 N. Y. 661 ; Milwaukee b. Gross, 

B. Jamea, 81} Penn. St. 194 ; Whilson 21 Wis. 241. See Wreford v. People, 14 

B. Franklin, 84 Ind. .'192. Unreasonable, Mich. 41. 

ontaide of inbabiied portion of city, — The Allowing ar« cue* In which mu- 



by Google 



CH. Tin.] THE GBADES OF MUNICIPAL 60VEBKMEHT. 24T 

company of paintera, — it will be void on thi^i ground.^ To take 
an illustration from a private corporation : It has been held that 
a by-lav of a bank, that all payments made or received by the bank 
must be examined at the time, and midtakes corrected before the 

dealer leaves, was unreasonable and invalid, and that a recovery 

might be had f^^ainst the bank for an ovei-payment ditwovered 

nicipkl ordinftncet hare been decUred The following hsTe been held unreaton- 
remaoDBble — ProhibitiDgkeepuiKDfiwine able, — Prohibiting putting ap of (te*in 
in a citj. Commonwealth n. Patch, 07 engine in city. Baitimore u. Redecke, 19 
Hbm. 221. Prohibiting avinerunDiDB at Md. 2t7; b. o. 33 Am. Rep. 289. Pro- 
large. Waco tr. Powell, 82 Tex. 2I>8; hibi^ng one person carrying on a ctf tain 
Cniaby r. Wanea, 1 BIch. 386; Wbitfleld bnunew and allowing another to otrtj 
a. Lopgeit, e Ired. L. 268 ; Roberts v. on Die lame bnsineu. Hudson i>. Thome, 
Ogle, 90 m. 459 ; Gosaelink r. Campbell, 7 Paige, '^t ; Tugman d. Cliicago, 78 HI. 
4 Iowa, 296. Prohibiting cattle nmniitg 406. Proliibi ting laying of gas-pi pes acroai 
«t large. CommoDwealth v. Bean, 14 the streets. Northern Liberties d. Oaa 
Gray, 62. Granting exclusire righta to Co., 12 Penn. St. 318. Levying tax loT 
niaoTeearcaHet of anlmaU, dirt, or offsJ building a sidewalk in uninhabited por- 
from city. River Rendering Co. v, Behr, Uon of the city. Corrigan d. Gage. 68 
T Mo. App. 345; Vandine, petitioner, Mo. 641. Prohibiting use of Babcock's 
8 Pick. 187; a. c. 17 Am. Dec. 351. Re- fire extinguishers and imprisoning those 
qoiriog consent of mayor to maintain an who used them. Teutonia Ins. Co. d. 
awning. Pedrick o. Bailey, 12 Gray, leL O'Connor, 27 la. Ann. B71. Requiring 
Kcqniring sidewalk to be cleared of snow, every person entering his drain In a leoer 
Goddard, petitioner, 16 Pick. 504 ; s. a. 28 to pay his ghare of tlie expense of making 
Am. Dec. 259; Kirby v. Boylston Market such sewer. Boston v. Shaw, 1 Mete. 
Aaa'n. 14 Gray, 249. Contra.- Gridley e. 130. Refusing to supply water to certain 
Bloomington, 68111.666. Requiring hoist- premise*. Daytoo tr. Quigley, 29 N. J. 
way to be cloeed after business hours. Eq. 77. Arresting free negroes found on 
NewYorkp.WillUms, 15N. Y. 502. Re- street after 10 p. m. Mayor p. Winfleld. 
quiring a drawbridge to be closed after a 8 Humph. 707. Requiring druggist to 
Teliide had been kept waiting ten min- furnish the names of parties to whom lie 
atea. Chicago v. McGinn, 61 111. 206. sells liquors. Clinton v. Phillipi, 58 HL 
Prohibiting laying of gas mains in win- 102; s. c. 11 Am. Rep. 52 Uiscriminat- 
»«r. Northern Liberties r. Gas Co., 12 ing between deaien within and wiihonl 
Penn. Sl 818. Requiring bay or coal to the city. Naihvllle p. Althorp, 5 Cold. 
be weighed by city weighers. Stokes v. fi6i; Ex partt Frank, 62 Cat. 606 ; a. o. 
Mew York, 14 Wend. 87; Tates n. Mil- 28 Am. Rep. 642. 

wankee, 12 Wii. 073. R^ulating price i Clark v. Le Cren, 9 B. £ C. 62 ; 

and weight of bread. Mayor d. TniUe, 3 Chamberlain of London v. Complon, 7 

Ala. 137 ; 8. c. 86 Am. Deo. 441 ; Page i-. D. & R. 597. Compare Hayden o. Noye^ 

Rucrckeiiy, 36 Barb, 892 ; GaiUotle h. 6 Conn. 891 ; Willard n. KiUingworth, 8 

New Orleans, 12 La. Ann. 432. Prohibit- Conn. 247. But a by-law is not void, a* 

ing peddling without a license. Hun- inreatraint of trade, which requires loaves 

tinginn r. Cheeabro, 67 Ind. 74. Frohib- of bread baked tor sale to be of specified 

iting tale of adulterated milk. Polintky weight and properly stamped, or which 

>. People, 7S N. T. 66. Prohibiting sale requires bakers to be licensed. Mayor, 

of milk without license. Chicago v. Bar- Ac. of Mobile s. Yuille, 8 Aia. 137. See 

tree, 100 UL 67 1 People e. Mulholland, 19 Buffalo u. Webster, 10 Wend. 99. Aby- 

Hun,M8; 82 N. Y. 324 ; a. o. 87 Am. Rep. law forbiddiog the mainleoance of slaugb. 

SAB. Pnnishing vagrants. St. Louis d. ter-housea within a city ia not void as in 

BeoC^ II Ho. fll. Inpoaing license tax restraint of trade. Cninin v. People, 82 

oapeddlerfc fr porta Ah Foy, 67 CaL 93. H. T. 818; a. o. 31 Am. Rep. 664. 



by Google 



248 OONSTITUTIONAL LIHITATIONa. [CB. VUI. 

afterwards, Dotwithstanding the bj-law.i So a by-law of a town, 
which, under pretence of regulating the fishery of clams and 
oysteiH within its liiuita, prohibits all persons except the inhabi- 
tants of the town from taking shell-fish in a navigable 
[* 208] river, is void as in contravention of common right.' ' And 
for like reasons a by-law is void which abridges the rights 
and privileges conferred by the general laws of the State, unless 
express authority therefor can be pointed out in the corporate 
charter.' And a by-law which assumes to be a police regula- 
tion, but deprives a party of the use of his property without re- 
gard to the public good, uader the pretence of the preservation of 
health, when it is manifest that such is not the object and purpose 
of the regulation, will be set aside as a clear and direct infringe- 
ment of the right of property without any compensating advan- 
tages.* 

> Hecliuiic*' ud Fumen' Bank c "A bf-law, to be Tilid, muit be reuoa- 

Smith, 19 Johni. IIG; Oallatin v. Bnd- Mv; it mutt be legi fidti rntioni conma. 

ford, 1 Bibb, 209. Althoagh theie are Now if thli regulatioD or prohibition had 

catei of priT&te coTpontioni, they are been limited to the populooi part of the 

died liere because the rule* gorerniiig town, and vera mnde In good faitb for 

the authority to make bylaws are the the purpose of preserving the health of 

■ame witli both claiuei ol corporation!. the inhabitanti, which may be in loioe 

» Ilayden r. Noyei, 6 Conn. 301. A» degree eipo»ed to danger by the allow- 
It had been proriouily held that every anoeorintennenti in the miditofBdenae 
peraon hu a common-taw right to lUh in population, it woold bare been a Tei7 
a navigable river or arm of the >ea, until reaaonable regulation. But it cannot be 
by acme legal mode at appropriation thi« pretended that thii by-law waa made for 
common right waa eitinguiahed (Peck tlie prciervation of the health of the In- 
r. Lockwood, 6 Day, 22], the by-law in habitaota. Ita reitrainta extend many 
eCFcct deprived every citizen, except tetl- milei into the country, to the utmoit lim- 
denta of the townghip. of righli which It* of tlie town. Now inch an unnecea- 
were vetted, *o fkr as from the nature of aary restraint upon the right of interring 
the case a right could be vetted. See the dead we think esaentially nnreason- 
also Marietta u. Fearing, 4 Ohio, 427. able. If Cliarleitown may lawfully make 
That a right to ngalatt does not include a auch a by-law as this, all the towns ad- 
right to prohibit, aee also Ex parte Bur. Joining Botton may impute similar re- 
nett, 30 Ala. 461 ; Austin e. Murray, 16 strainla, and consequently alt tlioae who 
Pick. 121. And see Milhan d. Sharp, 17 die In Boston must of necessity be in- 
Barb. 4Sfi, 28 Barb. 228, and 27 N, Y. 611. terred wlUiin the precinct* of the city. 

* Dunham r. Trustees of Rochester, 5 That thit would be prejudicial to tiM 

Cow. 462; Mayor, &c. of New York d. health of the inliabilants, especially in 

Nichols, 4 Hill, 209; St. Paul u. Tracger, the hot season of the year, and when 

2S Minn. 248; a. c. 83 Am. Rep. 462. epidemic diaeaaei prevail, seem* to be 

SeeStraUBi r. Pontiac, 40IIL 301. a well.established opinion. Intermenu, 

< By a by. law of the town of Charles- therefore, in cities and large populous 

town ail persons were prohibited, without towui, ought to be discountenanced, and 

license from the selectmen, from burying no obstacles should be permitted to the es- 

any dead body brought Into town on any tabllshmentofcameterles at suitable places 

part of their own premises or elsewhere in the tidnity. The by-law in question 

within the town. By theoourt, (F(f<'e,J.i i« tlierefore an uiu«Monable i 



by Google 



OH. Tin.] THE 0BADS8 OT HDNIOIPAL OOVZEITHENT. 



• lieUgalxon tf Mumeipal Powen. [* 204] 

Aoother utd very important limitation which rests upon mu- 
tdoipal powers is that they shall be executed by the municipality 
' itself, or by snob agencies or oEBoers as the statute has pointed 
out. So far as its functions ai-a l^inlative, they rest in the dis- 
cretion and judgment of the municipal body intrusted with them, 
and that body cannot refer the exercise of the power to the dis- 
cretion and judgment of its subordinates or of any other author- 
ity. So strictly is this rule applied, that when a city charter 
authorized the common council of the city to make by-laws and 
ordinances ordering and directing any of the streets to be pitched, 
levelled, paved, flawed, &c., or for the altering or repair^ 
iog the * same, " within such time and in such manner as [* 205] 
they may prescnbe under the superintendence and direo- 
tioQ 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 left to the city superintendent and the committee of the com- 

■pon auuij of the eitltent of Boalon, who note to Ward v. Greenojtle, S& Am. Hep. 

an drairoDi of burjing their dead with- 702. Municipal by-lawa may impoae pen- 

aot the city, and for that reaaon ia Toid." altiei on parliei guiltj of « riolation 

Aiwlinr. Murray, 10 Pick. 121, 12G. Sain thereof, but thej cannot impoae forfeitur* 

Wrefordr.People,14Mich.ll,theoomai<ai of property or rightt, without eipreaa 

eotmcil of Detroit, nnder a power granted tegialatire anthority. State b. Fergtuon, 

b; lUtDte to compel llie ownen and occo- 83 N. H. 4M ; PliiUipa u. Allen, 41 Penn. 

psDta of ilaugliteF'lioaiei to cleanae antt &L 481. Nor can niunlcipal corporationa, 

•hate tbem whenerer Decenary for the by their by-lawa, take into their own hinda 

hMlthof the inhabitanla,aaiumed topa« the pnaiihment of offencea aKainat the 

>D ordinance altogether prohibiting the general law* of the Slate, Bee Chariton 

•UogblertDK of animals within certain c Barber, 54 Iowa, saO; a. c. 87 Am. 

Umiti in the city; and it wa« held *oid. Kep. 20B; Kirk v. Nowili, 1 T. R. 118; 

See further. State r. Jertey City, 29 N. J. While v. Taliman, 26 N. J. 67 ; Hart b. 

170. Dpon the whole aubjecl of mnnlci- Albany. 9 Wend. 671 ; Peoria r. Cathonii. 

pal by-lawi, see Angell & Ame* on Corp. 2B HI, 317 ; St. Paul o. Coulter, 12 Minn. 

c lOj GraDt on Corp, 76 « (Of. See alio 41. In Chicago, where there i* both a 

Kedfield on Kailwaf a {8d ed.) Vol. I. aty and a town organiiation, it hai been 

f. 88; Dillon, Hnn. Corp. c. 12. The heU competent for both to require thoae 

•■bject of the iwaaonablenea* of by-lawa who carry on a noUome trade to take ont 

wai oonaidcred at tome length in People a Hceti»e. Chicago Packing. Ac. Co. c. 

V. Medical Boctety of Erie, 34 Barb. 670, Chicago, B8 IIL 221 ; a. o. BO Am. R^ 

aad 8mm ». Same, 8S N. T. 1B7. 8e« M6. 



by Google 



250 CONSTITDTIOHAL LIMITATIONS. [CH. TUL 

mon council the decision wliich, under the law, must be made by 
the council itself. The trust wan an importaut 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 
mude. It was in effect a power of taxation ; and taxation is the 
exercise of sovereign authoiity ; and nothing short of the most 
positive and explicit language could justify the court in holding 
that the legislature intended to confer such a power, or permit it 
to be conferred, on a city officer or committee. The statute iu 
question not only contained no such langu^e, but, on the con- 
trary, cleaily expressed the intention of confining the exercise of 
this power to tlie common council, the members of which were 
elected by and responsible to those whose property tbey were thus 
allowed to tax.' 

This restriction, it will be perceived, is the same which restA 
upon the l^islative power of the State, and it springs from the 
same reasons. The people in the one case in creating the legisla* 
tive department, and the legislature in the other iu conferring the 
corporate powers, have selected the depository of the power which 
they have designed should be exercised, and in confiding it to 
such depository have impliedly prohibited its being exercitied by 
any other agency. A trust created for any public purpose cannot 
be assignable at the will of the trustee.* 

1 Tliompian c, Schennerhorn, 6 N. T. shall not exceed ten Ihouund doUsn. 

92. See alio Smilh v. Mor»e, 2 Cat G24 ; And provided alio tliat the object for 

Oaklandu. Carpentier, ISCal. SWjWhjto wbich tbe monej ii inteoded to be 

V. NaahviUe, 2 Swan, 364 ; Eaat St. Lou- nuaed ehall be flnt gubmitted to tbe 

U D. Wehrung. 60 III. 2S ; Rugglea v. Col. Preaideot of the Uoited Statei, and 

lier, 43 Ho. 363 i Sute c. Jene? Cil;, 2& ihall be approved bj him." MartluJ!, 

N. J. 309 ; Hydei v. Joyes, 4 Biuh, 464 ; Ch. J,, speaking of thii aalhotity, tAy : 

lijan V. Jerome, 3S Wend. 4S& ; Srate if. " There it great weight in the argument 

Patenon, S4 N. J. 168; State b. Fiike. 9 that it Is a trust, and an important trott, 

R. I. 94 ; Kinmund; u. Mahan, 72 IU. conSded to the corporation itseir, for 

462 ; Davis v. Reed, 66 N. Y. 566 ; Su- the purpose of effecting important ira- 

perviaora of Jackson v. Brush, 77 HI. 60 ; provements in tlie city, and ought, 

Thomson n. Booneville, 61 Mo. 282 ; therefore, to be eieculed under the im- 

Mutter of Quong Woo, U. S. Ct. Ct. Cal., mediate autliorily and inipection of the 

Pac. Law Jour. Aug. 12, 1882 ; Cornell n, corporation. It is reasonable to suppose 

State.S Lea. 624; Dillon, Mun. Corp £60. that Congress, when granting a power lo 

* The charter of Washington gave tlie authoriie gaming, would feel eome aolici- 

corporation authority " to authorize the tude respecting the fairness with wliich 

drawing of lotteries, for eOfecting any the power should be used, and would take 

important improvement in the dty. as many precautions against its abuse aa 

which the ordinaiy funds oc revenue was compatible with its beneflcial eial^ 

thereof will not accomplish ; provided cise. Accordingly, we find a limitation 

tliat the amount raiaed in each year upon the amoaot to be ruaed, and on (be 



by Google 



CH. VIII.] THE GBADE8 OF HDNICIPAL GOVEBNMKKT. 251 

* Equally incumbent upon the State legislature and [* 206] 
these municipal bodies is the restrictioD that they shall 
adopt DO irrepealable legislation. Ko 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 exei-cise them again and 
^ain, as often as the pablic interests require.' Such a body has 
no power, even by contract, to control and embarrass its legisla- 
tive powers and duties. On this ground it has been held, that a 
grant of land by a municipal corporation, for the purposes of a 
cemetery, with a covenant for quiet enjoyment by the grantee, 
could not preclude the corporation, in tlie exercise of its police 
powers, from prohibiUng any further use of the land for cemetery 
purpoBCB, when the advance of papulation threatened to make such 
use a public 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 progress of popula- 
tion, it becomes dangerous to the property, the safety, or the lives 
of hundreds ; it cannot be that the mere form of the grant, be- 
cause 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 
In this way the legislative powers essential to the comfort and 
preservation of populous communities might be frit- 
tered away into • perfect insignificance. To allow rights [• 207] 
thus to be parcelled out and secured beyond control would 
fix a principle by which our cities and villages might be broken 
up. Nuisances might and undoubtedly would be multipUed to an 
intolerable extent."' 

object for which the lotterj m^ be an- from It than li inwparable from the thing 

IboriEed. It ii to be for any important itself. Bot if the nianagemenE, control, 

improTement id the city, which the ordi- and reipontibilitj may be trRmferred lo 

Darj fundi or reTCDue thereof will not ac- any adTenCurpr who will purchaae, all 

oompliih ; and ii rabjected to the judg- tbe tecniity for fairneH wliich ii for- 

ment of the Pretident of the United nlahed by character and reiponiibility la 

Bute*. Thepowerthnicautiouilygrant- lost." Clark b. Waihlngton, 12 Wheat. 40, 

ed ii depoaited with tbe corporation it- 61. 

*elf, without an iodicatioD that it is i Kaat Hartford d. HitrtTor^Brid^ce Co., 

anignable. It i* to be ezercited, like 10 How. 611 ; Dillon, Miin. Corp. } 01. 
Other corporate powers, by the agenta of » Brick Preabyterian Church u. City 

tbe corporation nnderila control. While of New York, 6 Cow. 538; New York v. 

it remaitia where CongreH haa placed it, Second Avenue R. R. Co., 32 N. Y. 261. 

tbe character of the corporation afford* Compare Kiocaid'a Appeal, OS Fouo. 8t 

•ome •ecnrily againtt ita abuH, — lome 411 ; i. c. 6 Am. Rep. 377. 
Mcuiit/tliataootlier mliduet wiUreittlt * Coat* p. Mayor, &«. of New York, 7 



by Google 



262 CONSTrrOTIONAI. LIlflTATIONB. [CB. VIH. 

And on the same ground it is Iield that a muDicipal corpora- 
tion, having power to establish, make, grade, and improve streets, 
does not, by once establishing the grade, preclude itself from 
changing it aa the public needs or interest may seem to require, 
notwithstanding the incidental injury which must result to those 
individaals who have erected buildings with reference to the first 
grade.' So a corporation having power under the charter to es- 
tablish and regulate streets cannot under this authority, witboat 
explicit legidative consent, permit individuals to lay down a rail- 
way in one of its streets, and confer privileges exclusive in their 
character and designed to be perpetual in duration. In a case 
where this was attempted, it has been said by the court: "The 
corporation has the excluuve right to control and regulate the 
use of the streets of the ctty. In this respect it is endowed 
with legislative sovereignty. The exercise of that sovereignty 

Co*, ess. See alio Daria v. ittyor. tic. ui Citr, £3 Ho. 162 ; Keuj b. LonUTille, 

at New York, U N. Y. G06; Attorney- 4 Dan*, 154; s. c. 29 Am. Dec. 806; 

General n. Mayor, tc of New York,! Smith v. WmMngton, 20 Haw. 136; 

Uuer, IIH ; Stale v. Orare*, 10 Mil. 361 ; BIoudI c. JaneiTille, 31 Wii. 64S ; Neiiai 

Quizler a. Georftctnwn, 6 Wheat. 508; v. Feoria, 41 111 602; Shawneetowa t>. 

Ixiuiaville City R. B. Co. v. LouLiTille, 8 Maion, 82 III. 337 ; Pontiac r. Caner, 32 

Bub. 416. Mich. 164 ; Weymann t>. Jefferion, fll 

> Callendar s. Manti, 1 ^ck. 417; Mo. 66. Compare LoniiTille tr. Rolling 

Origgi p. Foole, 4 Allen, 196; BadcliSe'R MiU Co., 3 Biuh, 4ie. The law would 

Executor* e. Brooklyn, 4 N. T. 106; Mem In be olherwlie declared io Ohio. 

Oravea v. Ocii, 2 Hill, 460 ; Oraen v. See Rhode* r. ClDdnnati, 10 Ohio, ISO ; 

ReadioK, 9 Watts, 362 ; i. c. 86 Am. McComb* v. Akron, 16 Ohio, 474 ; s c. 

Dec. 127; O'Connor v. ^ttabiirg, 18 18 Ohio, 22B ; Crawford r. Delaware, T 

Fenn. Bt. 187 ; Reading t>. Keppleman, Ohio Bt 469 ; Akron b. Chamberlain 

61 Penn. St. 233 ; Skinner •>. Hartford Co., 34 Ohio St. 328 ; s. o. 32 Am. Rep. 

Bridge Co., 20 Conn. 623; Fellows v. 807. See also NBihrille v. ITichol, 69 

New HiTen, 44 Conn. 240 ; a. c. 26 Am. l^nn. 338. It ii alio otherwise in mined* 

Rep. 447 ; Snfdar d. Rockport, 6 Ind. noder ita preaent Conititution. Elgin v. 

237 ; La Fayette d. Bmh, 19 Ind. 328 ; La Eaton, 88 III. 586. Compare Alexander 

Fayette v. Fowler, 34 Ind. 140; Creal r. v. Milwaukee, IS Wis. 247. Court* will 

Keokuk, 4 Greene (Iowa), 47; Cole v. not undertake to control municipal di*- 

HuBcatlne, 14 Iowa. 296 ; Rniaelt v. Bur- cretion in the matter of ImproTingaireet*. 

lington, 30 Iowa, 262 ; Henderahott r. Ot- Dunham v. Hyde Park, 76 III 871 ; 

tumwB, 46 Iowa, 666 ; Roberta d. Chlca- Bruah i>. Carbondale, 78 HI. 74. The 

go, 26 lU 249 ; Hnrphy n. Chicago, 29 owner of a lot on a city itreet acquire* no 

HI. 279; Qurney v. Jonea, 76 III. 231; prewriptive right to collateral aupport for 

Round* V. Mumford, 2 R. I. 164 ; Rome hi* building* which can render the dtj 

V. Omberx, 28 Ga. 46 ; Roll v. Augu*ta, 34 liable for injuriea canaed by grading tbe 

Ga. 828; Macon d. Hill, 68 Ga. 696; Rey- atreet. Mitchell r. Rome, 40 O*. 19; a. 

nolda p. Shreveport, 13 La. Ann. 428; c. IS Am. Bep. 060; Quincy ti. Jonea, 70 

White V. Yaxoo City, 27 HI**. 357 ; HI. 331 ; h. o. 20 Am. Bap. 248. But Uia 

Boniie* ■>. Mayor, Ac,, I Humph. 408; St failoK to nae due care and pmdenm 

tioni* D. Gumo, 12 Mo. 414 ; Taylor e. In grading may render the ctty liablBk 

St Louia, 14 Mo. 20 ; Schattaer v. Kan- Bloaningtoo «. Biokaw, 77 HL 101 



by Google 



OH. Tin.] THB GRADES OF HDNICIFAL OOTBBITMENT. 253 

has no limit, bo loog as it is within the objects and trusts 
for which the power is conferred. An ordinance regulating a 
street ia a leg^slatiTe act, entirely beyond the control of the 
judicial power of the State. But the resolution in question 
is not such an act. Though it relates to a street, and very ma- 
terially affects the mode in which that street is to be used, yet 
in its essential features it is a contract. Privileges exclusive in 
their nature and designed to be perpetual in their duration are 
coaterred. 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 considera- 
tion, the corporation has assumed to surrender a portion of their 
municipal authority, and baa in legal effect ^reed with the de- 
fendants that, so far as they may have occasion to use the street 
Cor the purpose of constructing and operating their rail- 
road, the right to regulate * and control the use of that [* 208] 
street shall not he exercised. ... It cannot be that 
powers vested iu 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 the public right of eminent domain in respect to the 
streets witliin its limits, subject only to the higher control of the 
State and the use of the people ; and therefore a written license 
granted by the city, though upon a valuable consideration, au- 
thorizing the holder to connect his property wilh the city railway 
by s turnout and track, was not such a contract as would prevent 
the city from abandoning or removing the railway whenever, in 
the opinion of the city authorities, such action would tend to the 
benefit of its police.' 

While thns held within the limitations which govern the legis- 

1 IfiUwnv. Sharp, IT Barb. 436; B.O. 16. In Milhan e. Bharp, npro, It wm 

98Barb.22a,atM]27N.T.611. Seealto alto held thnt a corporatloo, with anthor- 

DaTic D. Majot, tc. of Neir York, 14 Itj ''from time to time to r^ipilale the 

H. T. GOB; Sui« v. Hijror. Ac, 8 Dner, rate* of fare to be charged for the cai- 

119; Slale V. GraTM, 1ft Md. 361. Com- liageof pmoni," conld not b^ reK>ltitlon 

pare Chioago, &c. R. R. Co. «. People, TS diveit iUelf thereof a« to the carriagea 

m. 641. The conient of the legiihiture emplojed on a ■lree^railwar. 
In any inch case woaid rellere it of all