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

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http://www.archive.org/details/cu31924019912736 




TKEATISE ^ 

1 ff OCT 

I > f 6 

\X 1878 

ON THE \rf ■^ 



CONSTITUTIONAL LIMITATIONS 




WHICH BEST UPON 



THE LEGISLATIVE POWER OF THE STATES 
OP THE AMERICAN UNION. 



THOMAS M. ^OOLEY, LL.D., _^j.Mj- 

OHB OF THB JUSTICSS OF THE SDPRBME COURT OF UlCHIOAN, ANDI^AT PROFESSOR 
OF LAir IN THE CNirERSIIT OF UICHIGAH. 



FOURTH EDITION, 

WITH COSSISEBABLB ADDITIONS, OIYINO THB BESULTS OF THE BEOENT OASES. 



BOSTON: 
LITTLE, BEOWN, AND COMPANY. 

1878. 



Entered according to Act of Congress, in the year 1874, by 

LITTLE, BROWN, AKD COMPAKT, 

In the Office of the Librarian of Congress, at Washington. 



Entered according to Act of Congress, in the year 1878, by 

LITTLE, BROWN, AND COMPANY, 

In the Office of the Librarian of Congress, at Washington. 

H(>oo 



cambkidgb: 
press of john wilson and son. 



PREFACE TO THE SECOND EDITION. 



In the Preface to the first edition of this work, the author stated 
its purpose to be, to furnish to the practitioner and the student of 
the law such a presentation of elementary constitutional principles 
as should serve, with the aid of its references to judicial decisions, 
legal treatises, and historical events, as a convenient guide in the 
examination of questions respecting the constitutional limitations 
which rest upon the power of the several State legislatures. In 
the accomplishment of that purpose, the author further stated that 
he had faithfully endeavored to give the law as it 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 apparent — that he had written in full sympathy 
with all those restraints which the caution of the fathers had im- 
posed upon the exercise of the powers of government, and with 
faith in the checks and balances of our republican system, and in 
correct conclusions by the general public sentiment, rather than 
in reliance upon a judicious, prudent, and just exercise of au- 
thority, when confided without restriction to any one man or body 
of men, whether sitting in legislative capacity or judicial. In this 
sympathy and faith, he had written of jury trials and the other 
safeguards to personal liberty, of liberty of the press and of 
vested rights ; and he had also endeavored to point out that there 
are on all sides definite limitations which circumscribe the legis- 
lative authority, independent of the specific restrictions which the 
people impose by their State constitutions. But while not pre- 
disposed to discover in any part of our system the rightful exist- 
ence of any unlimited power, created by the Constitution, neither 
on the other hand had he designed to advance new doctrines, or 
to do more than state clearly and with reasonable conciseness the 
principles to be deduced from the judicial decisions. 

The unexpected favor with which the work has been received 
having made a new edition necessary, the author has reviewed 
every part of it with care, but without finding occasion to change 



IV PEEFACE. 

in any important particular the conclusions before given. Further 
reflection has only tended to confirm him in his previous views of 
the need of constitutional restraints at every point where agents 
are to exercise the delegated authority of the people ; and he is 
gratified to observe that in the judicial tribunals the tendency is 
not in the direction of a disregard of these restraints. The reader 
will find numerous additional references to new cases and other 
authorities; and some riiodifications have been made in the 
phraseology of the text, with a view to clearer and more accurate 
expression of his views. Trusting that these modifications and 
additions will be found not without value, he again submits 
his work " to the judgment of an enlightened and generous 
profession." THOMAS M. COOLEY. 

University of MiCHieAN, 

Ann Abbob, July, 1871. 



PREFACE TO THE THIRD EDITION. 

The second 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. COOLEY. 

Univeesitt op Michigan, 

Ann Abbob, December, 1873. 



PREFACE TO THE FOURTH EDITION. 

New topics in State Constitutional Law are not numerous ; 
but such as are suggested by recent decisions have been discussed 
in this edition, and it is believed considerable value has been 
added to the work by further references to adjudged cases. 

THOMAS M. COOLEY. 

UNIVEESITr OP MiCHIQAN, 

Ann Akbob, April, 1878. 



TABLE OF CONTENTS. 



CHAPTEE I. 

DEFINITIONS. 

Definition of a state, nation, people, sovereignty, and sovereign state 1 ^ 

What sovereignty consists in ... 2 

Apportionment of sovereignty in America 2 

Definition of constitution and constitutional government .... 2, 3 "' 

Of unconstitutionallaw 4 v^ 

CHAPTER IT. 

THE CONSTITUTION OF THE UNITED STATES. 

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

The Continental Congress 6, 7 

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

supersession thereof by the Constitution 8 

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

the new States 8, 9 

United States government one of enumerated powers 10 

General purpose of this government 11 

Powei-s conferred upon Congress 11, 12 

powers under the new amendments 12,13 

Executive and judicial power of the nation 14 

Constitution, laws, and treaties of United States to be supreme ; final 

decision of questions under, to rest with national judiciary . . 14 
Removal of causes from State courts ; decisions of State courts to be 

followed on points of State law 15-18 

Protection to privileges and immunities of citizens 13, 20 ^ 

Extradition of fugitives from justice ... . . . . . . . . 21,22 

Faith and credit secured to records, &c 22 

Restrictions upon the .States ..... . ,...■. . . . . 19 



VI TABLE OF CONTENTS. 

Guaranty of republican government 23 

Implied prohibitions on the States . . '. 24 

Reservation of powers to States and people 25 

Statutes necessary to'jurisdiction of national courts 26 



CHAPTER III. 

THE FOKMATION AND AMENDMENT OF STATE CONSTITUTIONS. 

State governments in existence when Constitution of United States 

adopted 28 

Common law in force ; what it consists in . 28-33 

English and Colonial legislation . . 33 

Colonial charters and revolutionary constitutions 35 

Constitutions of new States 35 

Sovereignty of the people ..." 36-38 

Proceedings in the formation and amendment of constitutions . 38-46 
Restraints imposed thereon by Constitution of United States . . 41, 42 
What generally to be looked for in State constitutions .... 42-46 
Rights are protected by, but do not come from them 46, 47 

CHAPTER IV. 

CONSTEUOTION OF STATE CONSTITUTIONS. 

Interpretation and construction 48 

"Who first to construe constitutions 49-54 

Final decision generally with the courts 54-57 

The doctrine of res adjudicata and stare decisis 57-66 

Construction to be uniform 67 

The intent to govern 68 

The whole instrument to be examined 70 

Effect to be given to the whole 71 

Words to be understood in their ordinary meaning 72 

Common law to be kept in view ^" 74 

Words sometimes employed in different senses 75 

Operation of laws to be prospective 76 

Implied powers 77, 78 

Consideration of the mischief to be remedied 79 

Proceedings of Constitutional Convention may be examined ... 80 
Force of contemporaneous and practical construction ..... 81-86 
Unjust provisions not invalid 87 



TABLE OP CONTENTS. vii 

Duty in case of doubt on constitutional questions 88 

Directory and mandatory provisions 89-99 

Constitutional provisions are imperative 94-99 

Self-executing provisions 99-102 

Danger of arbitrary rules of construction 102 



CHAPTER V. 

THE POWERS WHICH THE LEGISLATIVE DEPARTMENT MAT EXERCISE. 

Power of American legislatures compared to that of British Par- 
liament 104-106 

Grant of legislative power is grant of the complete power . . . 106 

But not of executive or judicial power 107-110 

Definition of legislative and judicial authority 109-112 

Declaratory statutes 112-115 

Statute setting aside judgments, granting new trials, &c.. . . 115-117 

Becitals in statutes do not bind individuals 117 

Statutes conferring power on guardians, &c., to sell lands . . 118-126 

Statutes which assume to dispose of disputed rights .... 126-129 

Statutes validating irregular judicial proceedings 129-131 

Legislative divorces 132-137 

Legislative encroachments upon executive power 138-141 

Legislative power not to be delegated 141-152 

Conditional legislation 141-152 

Irrepealable laws not to be passed 152-154 

Territorial limitations upon State legislative authority . . . 154,155 

Other limitations by express provisions 155-157 

Limitations springing from nature of free government . . . 156, 157 

CHAPTER VL 

THE ENACTMENT OP LAWS. 

Importance of forms in parliamentary law 158 

The two houses of the legislature 159,160 

Contested elections, rules of proceeding, punishing disorderly be- 
havior 161 

Contempts; privileges of members 162,163 

Legislative committees ^°^ 

Journal of proceedings 1"* 

Corrupt contracts to influence legislation 165, 166 



/ 



Viii TABLE OP CONTENTS. 

Counsel before legislature ; lobby agents 166, n. 

The introduction and passage of bills 1 67-1 69 

Three readings of bills . . ..;.■....■."■•• 1'" 

Teas and nays ■^'■'• 

Vote required for the passage of a bill I'l 

Title of statutes 172-183 

Amendatory statutes ". . . . 183-186 

Signing of bills by presiding officers 186 

Approval of bills by the governor 186-188 

Other legislative powers of the governor 189 

When acts to take effect 190-193 

CHAPTER VII. 

THE CISCUMSTANCES UNDEK WHICH A LEGISLATIVE ACT MAT BE 
DECLARED UNCONSTITUTIONAL. 

Authority to declare statutes unconstitutional a delicate one . . 194 

Will not be done by bare quorum of court 197 

Nor unless a decision upon the point is necessary 198 

Nor on objection by a party not interested 199 

•J Nor solely because of unjust or oppressive provisions . . . 200-204 
>^Nor because conflicting with fundamental principles .... 205-207 

^ Nor because opposed to spirit of the constitution 208 

Extent of legislative power 209 

Difference between State and national governments 209 

A statute in excess of legislative power void 210 

Statutes invalid as encroaching on executive or judicial authority . ' 211 

Or conflicting with the bill of rights 212 

Legislative forms are limitations of power 214 

Statutes unconstitutional in part 214-219 

Constitutional objection may be waived 219 

Judicial doubts on constitutional questions 220-225 

Inquiry into legislative motives not pe^taitted 225-226 

Consequences if a statute is void 227 

CHAPTER VIII. 

THE SEVERAL GRADES OF MUNICIPAL GOVERNMENT. 

The American system one of decentralization 223 

State constitutions framed in reference to it 230 

Local government may be delegated, to citizens of the municipality 230 



TABLE OF CONTENTS. IX 

liegislatiye control of municipalities 231-234 

Powers of public corporations 235 

Strict construction of charters 235, 236 

Contracts ultra vires void 237 

Corporations by prescription and implication 239-241 

Municipal by-laws 241-247 

Delegation of powers *by municipality not admissible 248 

Irrepealable municipal legislation cannot be adopted 251 

Presumption of correct action 253 

Power to indemnify officers 254, 256 

Powers to be construed with reference to purposes of their 

creation 257 

Authority confined to corporate limits 260 

Muuicipal subscriptions to works of internal improvement . . 260-272 

Negotiable paper of corporations 268, n. 

Municipal military bounties 273-281, 289 

Legislative control of municipal taxation 281—289 

Legislative control of corporate property 289-295 

Towns and counties 295-304 

Not liable for neglect of official duty 302 

Diflferent rules govern chartered corporations 303 

In what respect the charter a contract 304-312 

Validity of corporate organizations not to be qiiestioned collat- 
erally 312 



CHAPTER IX. 

PROTECTION TO PERSON AND PROPERTY UNDER THE CONSTITUTION 
OF THE UNITED STATES. 

Bill of Rights, importance of . . . . , 314 

Addition of, by amendments to national Constitution 317 v 

Bills of attainder 317-322 

Ex post facto \scws 323-333 

Laws impairing the' obligation of contracts 333-359 

What charters are contracts 339 

Contracting away powers of sovereignty 341-346 

Grant of exclusive privileges 346 

Changes in the general laws °*' 

Obligation of a contract, what it is 348 

Modification of remedies always admissible 351 

Appraisal laws . 



X TABLE OP CONTENTS. 

Stay laws, when void 357 

Validating imperfect contracts 359 

State insolvent laws 359,360 

The thirteenth and fourteenth amendments ., 360,361 

CHAPTER X. 

THE CONSTITUTIONAI. PROTECTIONS TO PERSONAL LIBEETT. 

Villeinage in England T . . . . 362-366 

In Scotland 366 

In America 366, 367 

Unreasonable searches and seizures 367-377 

Every man's house his castle 367-373 

Search warrants 370-377 

Inviolability of papers and correspondence 375-377r 

Quartering soldiers in private houses 378 

Criminal accusations, how made 379 

Bail to persons accused of crime . 380 

Prisoner standing mute 382 

Trial to be speedy 382 

To be public 383 

Not to be inquisitorial 384 

Prisoner's statement and confessions 384-391 

Confronting prisoner with witnesses 392 

Prisoner to be present at trial 393 

Trial to be by jury 394 

Number of jurors ; right of challenge 394, 895 

Jury to be of the vicinage . 395 

Verdict to be unanimous and free 396 

Instructions of the judge, how limited 397 

Power of jury to judge of law 398-402 

Accused not to be twice put in jeopardy 403-406 

Excessive flues and cruel and unusual punishments .... 406-408 

Bight to counsel 408-417 

Protection of professional confidence , . . . 412,413 

Duty of counsel 414 

Whether to address the jury on the law 415 

Punishment of misconduct in attorneys 416 

Writ oi habeas corpus 418-426 

Legal restraints upon personal liberty 419-422 

Necessity of Habeas Corpus Act 422-425 

What courts issue the writ 426-429 



TABLE OF CONTENTS. xi 

General purpose of writ, and practice upon 430 

Right to discussion and petition 432 

Right to bear arms 433, 434 

CHAPTER XI. 

OF THE PROTECTION OP PHOPERTT BY THE "LAW OF THE LAND." 



/ 



Magna Charta, chap. 29 435 

Constitutional provisions insuring protection " by the law of the 

land". 436, n. 

Meaning of " due process of law " and " law of the land " . . 437-440 

Vested rights not to be disturbed 442 

What are vested rights 443-448 

Interests in expectancy are not .445 

Legislative modilication of estates 446 

Control of rights springing from marriage 446, 447 

Legislative control of remedied 448 

Vested rights of action are protected 449 

Confiscation of rights and property 450-452 

Statutes of limitation 453-456 

Alteration in the rules of evidence 457 

Retrospective laws 460 

Curing irregularities in legal proceedings 463-466, 477 

Validating imperfect contracts 467 

Pendency of suit does not prevent healing act 474, 476 

What the healing statute must be confined to 477 

Statutory privilege not a, vested right 479 

Consequential injuries from changes in the laws 481 

Betterment laws 481 

Unequal and partial legislation 487 

Local laws may vary in different localities 488, 489 

Suspension of general laws 490 

Equality the aim of the law 493 

Strict construction of special grants 495-497 

Privileges and immunities of citizens 497 

Judicial proceedings void if jurisdiction wanting 498-500 

What constitutes jurisdiction 499 

Consent cannot confer it ^^^ 

Jurisdiction in divorce cases ^"1 

Necessity for process 503-505 

Process by publication ^^^ 

Courts of general and special jurisdiction 508 



Xii TABLE OF CONTENTS. 

Effect of irregularities in judicial procieedings 510,511 

Judicial power. not to be delegated ^12 

Judge not to sit in his own cause 512-517 

CHAPTER XII. 

LIBERTY OF SPEECH AND OF THE PRESS. 

Protection of, by the Constitution of the United States .... 518 

State constitutional provisions 518, n. 

Not well protected nor defined at common law 522 

Censorship of the press ; publication of proceedings in Parliament 

not formerly suffered 522 

Censorship of the press in America . . . . ■ 623 

Secret sessions of public bodies in United States 524 

What liberty of the press consists in ......... 525,526 

Common-law rules of liability for injurious publications . . . 527-532 

Cases of privileged communications . 532-534 

Libels on the government, whether punishable 534-538 

Sedition law . 535 

Further cases of privilege ; criticism of officers or candidates for 

office 539-551 

Petitions and other publications in matters of public concern . . 542 
Statements in course of judicial proceedings ....... 551-556 

by witnesses 551 

by complainant, &c 552 

by counsel 653 

Privileges of legislators 556 

Publication of privileged communications through the press . . 559 
Accounts of judicial proceedings, how far protected '. . . . 559-561 

Privilege of publishers of news 563 

Publication of legislative proceedings 569 

The jury as judges of the law in libel cases 572 

Mr. Fox's Libel Act , . 574 

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

defendant 577 

What is not sufficient to show 578 n. 

CHAPTER XIIL 

RELIGIOUS LIBERTY. 

Care taken by State constitutions to protect 580-586 

Distinguished fi-om religious toleration , . .'. i . . 581 582 n. 



TABLE OF CONTENTS. xiii 

What it precludes gg^ 

Does not preclude recognition of superintending Providence by 

public authorities ggy 

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

fact that the prevailing religion is Christian 587, 588 

The maxim that Christianity is part of the law of the land , . 588-592 

Punishment of blasphemy . . . . ; 539 

And of other profanity 593 

Sunday laws, how justified 594 

Respect for religious scruples , 594 595 

Religious belief as aflfecting the competency or credibility of 

witnesses ....;,' 595 



CHAPTER XIV. 

THE POWER OP TAXATION, 

Unlimited nature of the power 598-604 

Exemption of national agencies from State taxation .... 600-604 

Exemption of State agencies from national taxation 602 

Limitations on State taxation by national Constitution . . . 604-607 

Power of States to tax subjects of commerce 605,606 

Discriminations in taxation between citizens of different States . 606 
Elements essential to valid taxation ; purposes must be public . . 607 

Jjegislature to judge of purposes 608-610 

Unlawful exactions 611-615 

Necessity of apportionment 616 

Taxation with reference to benefits in local improvements ... 618 
Local assessments distinguished from general taxation .... 620 

Apportionment of the burden in local assessments 620-636 

Taxations must be uniform throughout the tkxing districts . . 623-628 

Road taxes in labor 637 

Inequalities in taxation inevitable 638, 639 

Legislature must select subjects of taxation 640 

Exemptions admissible ...... ^ 640-641 

Constitutional provisions forbidding exemptions 642, 643 

Legislative authority requisite for every tax 643-646 

Excessive taxation 646-648 

The maxim de minimis lex non curat in tax proceedings . . . 647 
What errors and defects render tax sales void 648 



Xiv TABLE OF CONTENTS. 

CHAPTER XV. 

THE EMINENT DOMAIN. 

Ordinary domain of State distinguished from eminent domain . . 650 

Definition of eminent domain 651 

Not to be bargained away ; general rights vested in the States . 653 

How far possessed by the general government 654 

AVhat property subject to the right 654 

Legislative authority requisite to its exercise 657 

Strict compliance with conditions precedent necessary . . . 657-660 
Statutes for exercise of, not to be extended by intendment ; pur- 
pose must be public 661 

What is a public purpose 663-669 

Whether milldams are 666 

How property to be taken . ...•.....-.•• 670-672 

Determining the necessity for 672, 673 

How much may be taken 674-676 

What constitutes a taking 676-697 

Consequential injuries do not 677-680 

Appropriation of highway to plank road or railroad .... 681-697 

Whether the fee in the land can be taken 697-699 

Compensation to be made 699 

Time of making 700-705 

Tribunal for assessing 703-705 

Principle on which it is to be assessed 705-712 

Allowance of incidental injuries and benefits 706-712 

What the assessment covers 711 

Action where work improperly constructed 712 

CHAPTER XVI. 

THE POLICE POWER OF THE STATES. 

Definition of police power 713 

Pervading nature of 713,714 

Power where vested 715 

Exercise of, in respect to charter contracts 716-725 

License or prohibition of sales of intoxicating drinks 725 

Payment of license fee to United States gives no right in oppo- 
sition to State law 729 

Harbor regulations by States 729-731 



TABLE OF CONTENTS. XV 

Distinction between proper police regulation and an interference 

with commerce ,.,....... 731 

State taxes upon commerce 732-735 

Sunday police 'regulations 734 

Regulation of highways by the States 734, 735 

Control of navigable waters 735 

What are navigable 735-737 

Congressional regulations of 737 

Monopolies of, not to be granted by States 737,738 

Power in the States to improve and bridge 738 

And to establish ferries and permit dams 738, 740 

Regulation of speed of vessels 741 

Destruction of buildings to prevent spread of fire 741 

Levees and drains 741 

Regulation of civil rights and privileges 742-746, 750 

Establishment of fire limits and wharf lines; abatement of nui- 
sances, &c 747 '^ 

Other State regulations of police 746-750 ' 

Power of States to make breach thereof a crime 750 '^ 



CHAPTER XVII. 

THE EXPRESSION OP THE POPULAK WILL. 

People possessed of the sovereignty, but can only exercise it under 

legal forms ; elections the mode 751 

Who to participate in elections ; conditions of residence, presence 

at the polls, &c 752-754 

Residence, domicile, and habitation defined 755 

Registration of voters 757 

Other regulations 758 

Preliminary action by authorities, notice, proclamation, &g. . , 759 

Mode of voting ; the ballot 760 

Importance of secrecy ; secrecy a personal privilege 763 

Ballot must be complete in itself 764 

Parol explanations by voter inadmissible 765 

Names on ballot should be full 766 

Abbreviations, initials, &c 766, 767 

Erroneous additions do not affect 768 

Evidence of surrounding circumstances to explain ballot . . 769, 770 

Boxes for different votes ; errors in depositing 772 

Plurality to elect 772 



xn TABLE OP CONTENTS. 

Freedom of elections, bribery, treating electors, calling out militia, 

service of process 773 

Betting on elections, contracts to influence them, &c 774 

Electors not to be deprived of votes 776 

Liability of officers for refusing votes 777 

Elector's oath when conclusive 777 

Conduct of election . . , 778 

Effect of irregularities ., 778-783 

Effect if candidate is ineligible 781 

Admission of illegal votes 782 

Fraud, intimidation, <&c. 783 

Canvass and return of votes ; canvassers act ministerially . . . 784 

Contesting elections ; final decision upon, rests with the^ courts . 786 
Canvasser's certificate conclusive in collateral proceedings ; courts 

may go behind 788 

What proofs admissible 789-791 

Whether qualification of voter may be inquired into by courts . . 791 



TABLE OF CASES CITED. 



Page 

Abbott V. Lindenbower 458, 459, 478 

Abell V. Douglass 31 

Abendroth v. Greenwich 231 

■ Abercrombie v. Baxter 856 

Aberdeen v. Saunderson 291 

Aberdeen Academy v. Aberdeen 295 

Abington v. North Bridgewater 756 

Ableman t>. Booth 2, 429 

Ackerman ». Jones 661 

Adams, Ex parte 394 

V. Adams 22, 432 

V. Beal 458 

V. Beman 642 

V. Coulliard 728 

V. Field 64 

V. Hackett 345, 480 

V. Palmer 136, 347, 348 

V. People 155 

V. Rankin 530 

V. Rivers 697 

V. Somerville 627 

V. Vose 431 

V. Wiscasset Bank 296, 303 

Adamson v. Davis 456 

Ad Hine, Steamer, v. Trevor 24 

Ah Fook, Matter of 441 

Ahl V. Gleim 278, 465 

Alabama, &c. Ins. Co. v. Boykin 471 

Alabama, &c. R. R. Co. v. Kenney 344 

Alabama R. R. Co. v. Kidd 264 

Albany, Street, Matter of 200. 220, 

442, 661, 673, 675, 702, 

710 

Albertson v. Landon 129, 460 

Alcock V. Cook 443 

Alcorn v. Hamer 143, 637 

Aldrich V. Cheshire R. R. Co. 677, 

705, 712 

V. Kinney 22, 23, 607 

V. Printing Co. > 645 

Aldridge v, Williams 81 



Alexander v. Alexander 628 

V. Baltimore 631 

». Bennett 109 

V. McKenzie 336 

«. Milwaukee 262, 676, 680 

e. Mt. Sterling 306 

». Taylor 61 

V. Worthington 68, 79 

AUbyer v. State 76, 462 

Alleghany City v. McClurkan 270 

Allegheny County Home's Case 179 

Allen V. Aldrich 420 

V. Archer 463 

V. Armstrong 458, 459, 478 

V. Drew 632, 635 

V. Jay 259, 265, 608, 610, 616, 

668. 
V. Jones 657 

V. McKeen 308 

V. Staples 373 

V. State 395 

B. Taunton 260 

V. Tison _ _ 178 

Allen County Commissioners v. Sil- 
vers 217, 221 
Allentown v. Henry 631 
Alley V. Edgcombe 274 
Almy V. People 605 
Alston V. Newcomer 756 
Alter's Appeal 474, 491 
Alton V. Hope 311 
Alton Woods, Case of 443 
Alvord V. Collin 648 
Amann v. Damm 634 
Amberg v. Rogers 458 
Amboy». Sleeper 243 
Ambrose v. State 243 
Amenia v. Stamford 638 
American Print Works v. Law- 
rence 656, 747 
American River Water Co. v. 

Arasden 737 

Ames V. Boland 499 



XVlll 



TABLE OF CASES CITED. 



Ames V. Lake Superior R. R. Co. 340, 

703, 719 

V. Port Huron Log Driving 

and Booming Co, 451, 516 

Amey v. Alleghany City 145 

Amis I'. Smith 17 

Amy V. Smith 21 

Anable v. Patch 446 

Anderson i>. Dunn 162 

V. Jackson 62 

V. Kerns Draining Co. 636, 

665 

V. Millikin 494 

V. State 422 

Andover v. Grafton 268 

Andres v. Wells 667 

Andrew v. Bible Society 689, 591 

Andrevis, Ex parte 734 

». Insurance Co. 242 

V. Russell 469 

V. State 108, 205, 393, 434 

Annapolis v. State 176 

Annis v. People 391 

Anonymous 448 

Antisdel v'. Chicago, &c. R. R. Co. 722 

Antoni ». Wright 199, 348 

Antonio v. Gould 179, 181 

Arbegust w. Louisville 623 

Arimond U.Green Bay Co. 655,677,680 

Armington ». Barnet 342, 599, 666, 672 

Armstrong v. Harshaw 22, 507 

V. Jackson 215, 486 

V. State 396, 401 

-Arnold V. Arnold _ 596 

V. Davis 755 

V. Decatur 658, 673 

V. Kelley 115, 492 

»i Mundy 737 

Arrowsmith v. Burlington 438 

Arundel v. McCuUoch 737 

Ash V. Cummings 668, 701, 703 

V. People 246, 732, 749 

Ashbrook ti. Commonwealth 730 

Ashcroft V. Bourne 611 

Ashley v. Peterson 373 

I). Port Huron 311 

Ashuelot R. R. Co. v. Eliot 356 

Aspinwall v. Commissioners 232 

Astley V. Yonnge 552 

Astor V. New York 463 

Astrom v. Hammond 227 

Atchison v. Bartholow 232 

V. King 311 

Atchison & Nebraska R. R. Co. 

V. Baty 460 

Atkins V. Plimpton 603 

V. Randolph 286, 308 

Atkinson v. Bemis 241 

V. Dunlap 116, 464, 461 



Atkinson v. Marietta & Cincin- 
nati R. R. Co. 660 
Atlanta v. Central R. R. Co. 712 
Atlantic & Ohio R. R. Co. v. Sul- 

livant 660 

Atlantic, &c. Telegraph Co. v. 

Chicago, &c. R. R. Co. 264, 680 
Atty.-Gen. v. Barstow 784, 786, 787 
V. Brown 138,185,186,227 
V. Brunst 64 

V. Cambridge 234 

ji. Chicago, &c. R. R. 

Co. 206, 342, 719, 
721, 745 
V. Common Council of 

Detroit 101 

V. Detroit & Erin Plank 

Road Co. 68, 71 

V. Eau Claire 224, 611 

V. Ely 766, 766, 767, 769, 
779, 784, 786, 
789, 790 
V. Exeter 298 

V. Morris & Essex R. R. 

Co. 682 

V. New York 261 

v. Railroad Companies 

185, 341 
V. Supervisors of Lake 

Co. 226 

V. Supervisors of St. 

Clair 776 

V. Winnebago, &c. 

Plank Road Co. 627 
Atwater v. Wood bridge 342 

Atwood V. Welton 596 

Auditor of State v. Atchison, &c. 

R. R. Co. 109 

Augusta V. Sweeney 336 

Augusta Bank v. Augusta 361 

Augustin V. Eggleston 781 

Auld V. Butcher 351, 456 

Aurora v. Reed 677 

V. West 68, 145 

Austen v. Miller 18 

Austin et ah. In re 416 

V. Murray 244, 247, 248 

Austine «. State 387 

Aycock V. Martin 357 

Ayers v. Grider 528 

Aymette v. State 434 

Ayres ». Methodist Church 589, 692 



B. 

Babcock v. Buffalo 

V. Camp 
Bachelder v. Bachelder 
V. Moore 



311 

58 

503 

394 



TABLE OF CASES CITED. 



XIX 



Backus ». Lebanon 340, 342, 512 

Bacon v. Arthur 740 

V. Callender 448, 476, 486 

V. Wayne County 412 

V. York County 784 

Bagg's Appeal 117, 454 

Bsgnall V. London «& N. W. R. Co. 705 

Bailey v. Commonwealth 88 

'v. Fiske 494 

V. Mayor, &c. 295 

V. Milner 19 

V. Miltenberger 654 

V. New York . 305, 838 

V. Philadelphia, &c. R. R. 

Co. 67, 194, 719, 721, 740 

Bailey's Case 420 

Bailing v. West 244 

Baker ». Braman 199, 218, 219 

V. Cincinnati 622 

V. Gordon 432 

V. Johnson , 698, 700 

V. Kelly 465 

V. Kerr 512 

V. Lewis 737 

I). Mattocks 32 

V. People 604 

V. Band 59 

V. State 404, 406 

V. Stonebraker's Adm'rs 456 

V. Windham 255 

Baldwin v. Bank of Newberry 360 

e. Green 242 

V. Hale 360 

B.Newark 351,462 

V. New York 288 

V. North Branford 231, 274 

Ball V. Chadwick 79 

V. Gilbert 774 

V. Winchester 303 

Ballou V. York Co. Commissioners 784 

Baltimore v. Baltimore, &c. R. R. 

Co. 495 

V. Cemetery Co. 640 

/ V. Clunet 142, 345 

V. Eschbach 270 

V. Pendleton 310 

V. State 80, 84, 139, 202, 

207, 221, 222, 226, 226, 

489, 714 

Baltimore, &c. R. R. Co. v. Ma- 

gruder 656 

Baltimore, &e. R. B. Co. v. Nesbit 669 
Baltimore, &c. Turnpike Co. v. 

Union R. R. Co. 344 

Bancroft ». Dumas 161,726 

V. Lynnfield 267 

Ban del v. Isaac ^0 

Bangs V. Snow 648 

Bank v. Hines 614 



Bank v. Supervisors 602 

Bank of Chenango v. Brown 144, 147, 

160 
Chillicothe v. Chillicothe 236 
Columbia v. Okely 440, 494 
Commerce v New York 601, 
602 
the Dominion v. McVeigh 340 
Hamilton v. Dudley's Les- 
see 16, 215, 449 
Mich. V. Williams 212, 439 
Republic v. Hamilton 154 
Rome 0. Village of Rome 144 
the State v. Bank of Cape 

Fear 340 

the State v. Cooper 492 

the State v. Dalton 23 

United States v. Halstead 83 

United States v. Norton 15 

Utica V. Mersereau 413 

Bank Tax Case 602 

Banker's Case 439 

Bankhead v. Brown 6^2, 671, 673 

Banks, Ex parte 381 

Banks, The, ». The Mayor 602 

Banning v. Taylor 437 

Baptist Church v. Wetherell 681, 682 

Barbemeyer v. Iowa 13, 21 

Barber v. Root 603, 604 

Barbour v. Barbour ^ 447 

V. Camden 278, 476 

Barclay v. Howell's Lessee 699 

Barker v. Cleveland 68 

V. People 26, 78, 406 

V. Pittsburgh 337 

Barlow v. Lambert 31 

Barnaby v. State 733 

Barnard v. Bartlett 377 

Barnes v. Atchison 622 

V. District of Columbia 232 

V. First Parish in Falmouth 84 

V. McCrate 652 

Barnet v. Barnet 470 

Barnett,u. People 406 

Barrett v. Crane 509 

Barring v. Commonwealth 748 

Barron v. Baltimore 25 

Barronet, Matter of 380, 381 

Barrow v. Page 657 

Barrows v. Bell 560 

Barry, Ex parte 428 

V. Lauck 769, 760, 777 

V. Mercein 17, 428, 432 

Barry's Case 432 

Barthelemy v. People 679 

Bartholomew v. Harwinton 277, 278, 

476 
Bartlet v. Knight 22, 606 

Bartlett v. Crozier 303 



XX 



TABLE 01" CASES CITED. 



Bartlett v. Lang 448 

V. Morris 70 

Barto V. Himrod 142, 146, 147, 149 

Barton v. Syracuse 254, 304, 310 

BartrufFi). Rfimey 462 

Bass V. Fontleroy 154 

Bassett ». Porter 240 

Basten v. Carew 611 

Bates V. Delavan 507 

V. Kimball 56, 110, 116, 194 

V. Releyea 62 

V. Spooner 69 

Bathold ». Fox 356 

Batman v. Megowan 786 

Batre v. State 401, 403 

Battle V. Howard 179 

Baugher v. Nelson 825, 445 

Baum V. Clause 529 

Baxter, Matter of 322 

V. Brooks 786 

V. Winooski Turnpike 303 

Bay V. Gage 461 

Bayard v. Klinge 752 

Bay City v. State Treasurer 84, 272, 

286 

Bayerque v. Cohen 17 

Baylis v. Lawrence 576 

Beach v. Ranney 530 

V. Viles 17 

V. Walker 461, 464 

Beal V. Nason 454 

Beall V. Beall 446 , 488 

Beals V. Almador Co. 283 

Beard v. Beard 606, 508 

Beardsley v. Bridgeman 580, 567 

V. Smith 296, 302,. 303 

V. Tappan 633 

Beardstown v. Virginia 68, 81, 765, 

776, 791 
Beaty v. Knowles 235 

Beauchamp v. State 108, 205 

Beauregard v. New Orleans 16 

Beck V. Stitzel 628 

Bedard v. Hall 165 

Bedle v. Beard 240 

Beebe v. State 111, 116, 204, 205, 

213 
Beecher B. Baldy 101,220 

Beeching's Case 425 

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

Co. . 652, 661, 664, 672 

Beene v. State 416 

Beers v. Beers 513 

V. Botsford 301 

V. Haughton' 351 

Behrens v. Allen 660 

BeirneK. Brown 320, 323 

Bell V. Clapp 374 

». Morrison 17, 18, 453, 464 



Bell V. Prouty 662 

V. West Point 311 

Belleville R. R. Co. v. Gregory 71 
Bellinger v. New York Cent. R. R. 

Co. 655, 677, 696, 712 

Bellows V. Parsons 66 

Bellport, Parish of, v. Tooker 681 

Bemi^ V. Becker 64 

Benden v. Nashua 678 

Bender v. Crawford 368, 455 

Benedict v. Goit 683 

r. Vanderbilt 731 

Benford v. Gibson 336 

Bennett v. Boggs . 204 

V. Borough of Birmingham 237, 

246 

V. Bull 204 

V. Deacon 634 

V. Fisher 463 

V. New Orleans 254 

V. State 696 

Benoist v. St. Louis 628 

Bensley v. Mountain Lake, &c. Co. 660 

Benson v. Albany 207, 209 

V. New York 202, 292, 293, 296, 

338, 719, 724 

Bentinck v. Franklin 464 

Berlin b. Gorham 143 

Berry v. Baltimore, &c. R. R. Co. 165, 

215 

V. Carter 529 

V. Ramsdell 466 

Bevard v. Hoffman 777 

Bibb County Loan Association v. 

Richards 170 

Biddle v. Commonwealth 613 

Bidwell V. Whittaker 68 

Bigelow V. Bigelow 25 

V. Randolph 303, 304 

V. W. Wisconsin R. R. Co. 71, 

, 224, 710 

Big Grove v. Wells 268, 270 

Biffgs, Ex parte 416 

Bill V. Norwich 311 

Billings V. Detten 478 

V. Wing 628 

Billmeyer v. Evans 869 

Bimeler v. Dawson 22, 23, 607, 509 

Bmghamton Bridge Case 340, 343, 

482 

Bird, Ex parte 734, 

V. Daggett 270 

V. Perldns 312 

V. Smith 737 

V. State 390 

V. Wasco County 186 

Birdsall V. Carrick 189 

Bishop V. Marks 637 

Bishop's Case, The 433 



TABLE OP OASES CITED. 



XXI 



Bissell V. Brings 




22, 


507 


V. Jeffersonville 






270 


». Kankakee 






268 


V. Penrose 






84 


Black V. Black 






505 


V. State 






405 


Blackford v. Peltier_ 






456 


Blackinton v. Blackinton 






58 


Blackwood v. Van Vleet 




76 


356 


Bladen v. Philadelphia 






90 


Blain v. Bailey- 






185 


Blair V. Forehand 






748 


V. Kilpatrick 






498 


V. Milwaukee, &c. 


R.R 


.Co. 


719 


V. Ridgeley 


87 


,320 


332 


Blake v. Dubuque 






704 


V. Rich 






697 


V. St. Louis 




804 


310 


Vi Winona, &c. R. 


R. ( 


3o. 


721 


Blakemore v. Dolan 






184 


Blanchard v. Stearns 






777 


Blandford School Distric 


t ». Gibbs 


782 


Blanding v. Burr 




144 


283 


Blatchley v. Moser 






243 


Bleakney v. Bank of Greencastle 


465, 








468 


Blessing v. Galveston 




165 


232 


Blin V. Campbell 






499 


Bliss V. Commonwealth 




205 


434 


Vi Hosmer 






655 


V. Kraus 






231 


Block V. Jacksonville 






729 


Blocker v. Burness 






596 


Bloodgood V. Mohawk & Hudson 




R. R. Co. 195, 669, 


661, 


663, 


672, 






700, 


701 


Bloom V. Richards 31, 


582, 


589, 


596, 



Bloomer v. Stolley 

Bloomfield, &c. Co. v. Calkins 

Bloomington v. Bay 

V. Brokaw 252, 

Blossburg, &c. R. R. Co. v. Tioga 
R. R. Co. 

Blount V. Janesville 252, 472, 

Blydenburg v. Miles 407, 

Board of Commissioners v. Bright 
V. Brearss 
V. Lucas 
». Pidge 

Board of Education ». Minor 45, 

Board of Public Works v. Colum- 
bia College 
Board of Supervisors v. Heenan 
Boardman v. Beekwith 
Bode V. State 726, 

Bodwell V. Osgood 
Bogardus v. Trinity Church 



734 
153 
684 
304 
311 

18 
631 
749 
474 
278 
266 
735 
586, 
689 

23 
174 
463 
727 
642 

31 



Boggs V. Merced, &c. Co. 651 

Bohannon ». Commonwealth 377 

Bohlman v. Green Bay, &c. R. R. 

Co. 658, 659 

Boiling V. Lersner 16 

BoUman and Swartout, .Ea; ioarie 430 
Bolton V. Johns " 448, 472 

V. Prentice 420 

Bombaugh v. Bombaugh 446 

Bonaparte, Prince Pierre, Trial of 384 
Bonaparte v. Camden & Amboy 

R. R. Co. 25, 264, 672 

Bond V. Appleton 64 

V. Kenosha 622, 648 

V. State 879 

Bonsall v. Lebanon 735 

Boon V. Bowers 62, 125 

Booneville v. Ormrod 704 

V. Trigg 185 

Booth V. Booth 464 

V. Woodbury 278, 279, 610, 699 • 

Borden v. Fitch - 23, .503 

Borough of Dunmore's Appeal 234, 

283, 288, 339 

Rosier v. Steele 179 

Bosley v. Mattingley 68 

Boston V. Cummins 206, 326 

V. Shaw 785 

Boston, &c. Railroad Co., In re 695 

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

V. State 725 

Boston & Lowell R. R. Co. v. Sfi- 

lem & Lowell R. R. Co. 343 

Boston Mill-dam ■». Newman . v 672 
Boston & Roxbury Mill-dam Cor- 
poration B. Newman 668 
Boston Water Power Co. ». Bos- 
ton & Worcester R. R. Co. 343, 666 
Bostwiek V. Perkins 499, 600 
Boswell V. Commonwealth 379 
Botts V. Williams 22 
Boucher v. New Haven 311 



656 
630 
156, 754, 779 
408 
229, 239, 
240 
Bowdoinham ». Richmond 233, 366 



Boughton V. Carter 
Bourland v. Edison 

». Hildreth 
Bourne v. The King 
Bow V. AUenstown 



Bowen v. Byrie 
V. Hixon 
Bowie V. Lott 
Bowman v. Middleton 

V. Smiley 
Boyce v. Sinclair 
Bgyd v. Ellis 
V. State 
Boyland ». New York 
Boyle, Matter of 



603 

785 

100 

201, 212, 443 

369 

463, 468, 474 

26 

845, 386 

805 

166, 192 



XXll 



TABLE OF CASES CITED. 



Boyle V. Arledge 




17 


V. Zacharie 




360 


Braeketfc v. Norcross 


448 


486 


Braddee v. Brownfield 




205 


Bradford v. Brooks 




117 


V. Gary 




337 


V. Shine 


358 


454 


V. Stevens 




726 


Bradley, Ex parte 


894, 


416 


V. Baxter 




142 



V. Buffalo, «&c. R. R. Co. 722, 
725 
V. Fisher 416 

V. Heath 533, 54^, 656, 579 
V. McAtee 231, 343, 345, 630, 
632 
». New York & N. H. 

R. R. Co. 495, 662, 672 

V. People 602 

Bradshaw ». Heath 22, 23, 503, 507 

V. Omaha 226, 232, 624 

V. Rogers 699 

Bradt ». Towsley 629, 530 

Bradwell v. Illinois 13, 21, 37, 498 

Brady ». Brunson 659 

V. New York 270 

V. Northwestern Insurance 

Co. 747 

V. Richardson 499 

V. West 186 

Bragg V. Meyer 18 

V. People 480 

Bragg's Case 605 

Brainard v. Colchester 342 

Branch Bank of Mobile v. Murphy 190 

Brandon v. Gowing 413 

V. People 390 

V. State 178 

Branham v. Lange 140, 164, 186 

Branson v. Philadelphia 722 

Braynard v. Marshall 15 

Breitenbach v. Bush 357 

Brenham v. Story 125 

Brent v. Chapman 464 

Brevotn-t .«. Detroit 463 

V. Grace 123, 126 

Brewer v. Brewer 142, 640, 641 

V. New Gloucester 299 

Brewster v. Hough 154, 342, 641 

V. Syracuse 176, 474, 475, 

476, 612 

Brick Presbyterian Church v. New 

York 154, 261, 345, 748 

Bricker ». Potts 528 

Bridge v. Ford 609 

Bridge Co. v. Hbboken Co. 340 

Bridgeport v. Housatonic R. R. 

Co. 144, 446, 474 

Bridges v. Shallcross 138 



Bridgewater v. Plymouth 481 

Brien ». Williamson 76, 100 

Brieswick v. Mayor, &c. of Bruns- 
wick 178 
Brig Aurora v. United States 142 
Briggs ». Georgia 94 
V. Hubbard 445, 454, 461 
V. Whipple 257 
Brigham v. Miller 86, 136 
Bright V. Boyd 486 
V. McCulloch 176, 618 
Brighton v. Wilkinson 232, 233 
Brimmer v. Boston 345 
Brinkmeyer o. Evansville 304 
Brinton ti. Seevers 472 
Briscoe ». Anketell 354, 448 
V. Bank of Kentucky 11, 19, 
198 
Bristol V. Johnson 266, 257 
V. New Chester 233, 292 
w. Supervisors, &c. 449, 476 
Britain v. Kinnard 509 
British Plate Manuf . Co. v. Mere- 
dith 677 
Brittle V. People * 39 
Britton v. Ferry 84 
Broadbent v. State 494 
Broadfoot's Case 367 
Broadway Baptist Church v.- Mc- 
Atee 640 
Brock V. Hishen 701 
». Milligan 696 
Brockway v. Kinney 59 
Brodnax v. Groom 165 
Brodhead v. Milwaukee 278, 610, 611 
Broil V. State ' 415 
Bromley v. People 155 
Bronson v. Kinzie 350, 352, 353, 356 
V. Newberry 351, 362- 
». Wallace 17 
Brook V. Montague 554 
Brooker v. Coffin 628, 529 
Brooklyn Central R. R. Co. v. 
Brooklyn City R. R. Co. 241, 688, 

690 
Brooklyn & Newtown R. R. Co. 

V. Coney Island R. R. Co. 690 

Brooklyn Park Commissioners v. 

Armstrong «66, 698 

Brooks V. Hyde 156 

V. Mobile School Commis- 
sioners 71 
Brower ». O'Brien 784 
Brown v. Beatty 652, 705 
V. Brown 166 
». Buzan 220 
V. Cayuga, &c. R. R. Co. 655. 
678, 705 
V. Chadbourne 735, 736 



TABLE OF CASES CITED. 



XXI 11 



Brown V. Commonwealth 


740 


V. Diiplessis 


692 


V. Fifield 


75 


V. Fleischner 


147 


V. Foster 


609 


V. Grover 


78, 754 


V. Hanson 


528 


V. Haywood 


490, 492 


V. Hummel 


340 



V. Maryland 605, 606, 726, 733 
V. New York 472 

V. Parker 454 

V. Pratt 31 

V. Providence W. & B. R. R. 

Co. 712 

V. Smith 629, 623 

V. State 393, 395, 500 

V. Storm 485 

V. Wilcox 76 

0. Worcester 702 

Browne v. Scofield 735 

Browning v. Springfield 304, 305 

Brownviile v. Cook 243 

Bruffet V. Great Western R. R. 

Co. - _ 340 

Brumagim v. Tillinghast 605 

Brunnig v. N. O. Canal & Bank- 
ing Co. 660 
Briins V. Crawford 358 
Brunswick v. Finney 144 
Brush V. Carbondale 252 
V. Keeler 774 
Bryan, Ex parte 393 
V. Cattel 337 
V. Reynolds 166 
». Walker 451 
Bryson v. Bryson 136, 137 
V. Campbell 136 
V. Philadelphia 253 
Buckingham v. Davis 517 
V. Smith 657, 661 
Buckley v. N. Y. & N. H. R. R. 

Co. 725 

Bucknall v. Story 647 

Budd V. State 491 

Buddington, Matter of 430 

Buell V. Ball 254, 624 

Buffalo V. Holloway 310 

V. Webster 749 

Buffalo, &c. R. R. Co. v. Burket 612 
V. Ferris 701 
Buffalo & N. Y. R. R. Co. v. 

Brainerd 662 

Buffalo & Niagara R. R. Co. v. 

Buffalo 722 

Buford V. Wible 530 

Bulger, In re 336 

Bulkley v. N. Y. & N. H. R. R. Co. 722, 

724. 725 



Bull V. Conroe 480, 490 

Bull V. Read 142, 143, 148, 204 

Bullock V. Curry 260, 267 

Bumgardner v. Circuit Court 351 

Bumpas V. Taggart 603 

Bunn V. (Jorgas 357 

V. People 84 

V. Riker 774 

Buonaparte v. Camden & Amboy 

R. R. Co. 26, 264, 672 

Bur, Ex parte 429 

Burch V. Newberry 117 

Burden v. Stein 665 

Burdeno v. Amperse 75 

Burdett v. Abbott 162 

Burgess v. Clarke 668 

V. Pue 84, 144, 150, 230 

Burgett V. Burgett 172 

Burghardt v. Turner 446 

Burke v. Gaines 16 

V. Supervisors of Monroe 782, 

785 

Burkett v. McCurty 112, 754 

Burley v. State 393 

Burlingame v. Burlingame 652, 563 

Burlington v. Bumgardner 617 

V. Kellar 242, 644 

V. Leebrick 122, 142 

V. Putnam Ins. Co. 246 

Burnet ». Sacramento 622, 631, 632 

Burnett, Ex parte 244, 245, 247 

Burnhain v. Chelsea 278 

V. Commonwealth 506 

V. Morrissey 162, 164 

V. Stevens 431 

Burns, Ex parte 122 

V. Clarion County 234, 283 

V. State 490 

Burr V. Carbondale 284, 6i6 

Burrel v. Associated Reform Ch. 581 

Burril v. West 61 

Burrill V. Boston 274 

Burrit v. New Haven 237 

Bursorew. Huntington 603 

Burt V. Brigham 658 

V. Merchants' Ins. Co. 654 

V. Williams 117, 357 

Burton v. Burton 528 

Bush V. Seabury 749 

V. Shipmau 337, 839 

Bushel's Case 898 

Bushnell v. Beloit 144, 272 

Bushnell's Case 431 

Butler V. Dunham 272 

V. Farns worth 21 

V. Palmer 350, 357, 476 

V. Pennsylvania 336 

V. Porter 649 

V. Pultney 278 



XXIV 



TABLE OF CASES CITED. 



Butler V. Supervisors of Saginaw 115 

V. Toledo 463 

Butler's Appeal 205, 641 

Buys V. Gillespie 529 

Byers v. Commonwealth 612 

Byler v. Asher 757, 777 

Byrne v. Missouri 19 



c. 

Cabell V. Cabell 136 

Cahoon v. Commonwealth 100 

Cairo, &c. R. R. Co. v. Sparta 267, 287 
Calaveras Co. v. Brockway 786, 789 
Cak'ote v. Stanton 16 

Calder v. Bull 11, 110, 205, 323 

V. Kurby 346 

Caldwell V. Gale 64 

V. Justices of Burke 144 

Calendar v. Marsh 262 

Calhoun v. McLendon 114 

Cal. Tel. Co. v. Alta Tel. Co. 343 

Calking o. Baldwin ' 700, 702 

Calkiils V. State 390 

V. Sumner 552 

Callu. Chadbourno 144 

V. Hagger 354, 463, 466 

Callendar v. Marsh 678 

Callendar's Case 536 

Callison v. Hedrick 700, 702 

Calvin V. Reed 603 

Cambridge ». Lexington 234 

Camden & Amboy R. R. Co. v. 

Briggs 721,723 

Cameron v. Supervisors 669 

Cainpau v. Detroit 217, 226 

Campbell v. Evans 463, 506 

V. Fields 43 

V. Morris 21, 498, 607 

V. Quinlin 64 

V. Spottiswoode 576 

V. State 25, 406 

U.Union Bank 128,205,215 

Canal Co. v. R. R. Co. 128 

Canal Trustees v. Chicago 621 

Cancemi v. People 395j 600 

Cannon v. Brame 59 

V. Hemphill 179 

V. Mathes 95, 97, 179 

». New Orleans 606 

Canton v. Nist ■ 242 

Cantwell v. Owens 68 

Cape Girardeau v. Riley 98 

Capen v. Foster 757, 759, 777 

Caperton v. Martin 455 

Carew v. Western Union Tel. Co. 244 

Carey v. Giles . 128, 206, 220 

Cargill V. Power 218, 357 



Carleton v. Bickford 23 

V. Goodwin's Ex'rs 116 

». People 227 

V. Whiteher 168 

Carlisle v. United States 139 

Carlslake o. Mapledoram _ 529 

Carman v. Steubenville & Indiana 

R. R. Co. 680 

Came v. Litchfield 389 

Carothers v. Hurly 467 

Carpenter v. Dane County , 412 

V. Jennings 711 

V. Landaff 709, 710, 711 

V. Lathrop 269 

V. Montgomery 192, 226 

V. Oswego & Syracuse 

R. R. Co. 684 

V. Pennsylvania 325, 470 

V. People 401 

V. Snelling 603 

V. Tarrant 629 

Carr v. Georgia R. R. Co. 703 

V. Northern Liberties 264, 311 

V. St. Louis 242 

Carroll v. Olmstead's Lessee 124 

V. State 434 

V. St. Louis 259 

Carson v. Carson 325, 348 

». Coleman 699 

V. McPhetridge 782 

Carter ». Balfour 31 

V. Dow 246, 748 

V. Dubuque 269 

V. Walker 511 

V. Wright 696 

Casborus v. People 405 

Case V. Dean 456, 459, 647 

V. Dunmore 359 

». New Orleans, &c. R. R. 

Co. 69 

V. Reeve 61 

V. Rorabacker 163 

». Thompson 700 

V. Wildridge 68 

Cash, Appellant 127 

V. Whitworth 665 

Cass V. Dillon 144, 185, 277, 281 

Castellow ». Guilmartin ' 59 

Castleberry v. Kelly 528, 529 

Cates t). Kellogg 667 

V. Wadlington 735 

Cathcart v. Robinson 32 

Catlin V. Hull 607 

V. Smith 38 

Caulfield v. Bullock 777 

Cayuga Bridge Co. v. Magee 497 

CearfoBs v. State 70 

Central Bridge Corporation v. 

Lowell 340, 656 



TABLE OF CASES CITED. 



XXV 



Central City Horse Kailway Co. v. 

Fort Clark Horse Railway Co. 656 
Central Ohio R. R. Co. v. Holler 711 
Central Park Extension, Matter of 666 
Central Plank Road Co. v.Hanna- 

man 179 

Central R. R. Co. v. Hetfield 684, 696 
V. Rockafellow 696 
V. State 342 

Centralia v. Scott 811 

Chadwick*!. Moore 367 

Chagrin Falls, &c. Plank Road Co. 

V. Cane 683 

Chalker v. Ives 449 

Chamberlain v. Lyell 220 

V. Sibley 141 

Chamberlain of London v. Compton 

244, 246 
Chambers v. Fisk 84 

V. Satterlee 632 

V. State 184 

Champaign v. Pattison 311 

Chance v. Marion Co. 71, 72 

Chandler v. Nash 109, 612 

Chapin v. Paper Works 497 

Chapman v. Albany & Schenectady 

R. R. Co. 690 

V. Calder 642 

■ V. Gates 700, 701 

V. Macon 311 

V. Morgan 499 

V. Smith 68 

Cl^appee v. Thomas 606 

Charles River Bridge v. Warren 

Bridge 325, 482, 495, 704 

Charleston v. Benjamin 696 

Charlestown Branch R. R. Co. v. 

Middlesex 700, 702 

Charlton v. Alleghany City 677 

V. Watton 660 

Chase V. Chase 602 

V. Cheney 682 

V. Merrimac Bank 299 

V. Miller 764 

V. People 380 

Chase's Case ' 675 

Cheaney v. Hooser 143, 279, 610, 613 

Cheever v. Wilson 23 

Chenango Bridge Co. v. Bingham- 

ton Bridge Co. 495, 497 

Cheney v. Jones 221 

Cherokee Nation v. Georgia 1, 76 

Cherokee Tobacco, The 15 

Chesapeake & Ohio Canal Co. i>. 

Baltimore & Ohio R. R. Co. 656 

Chestnut v. Marsh 92 

V. Shane's Lessee 470 

Chetwynd v. Chetwynd 432 

Chicago V. Brophy 311 



Chicago V. Langlass 
V. Larned 


621, 


311 

622, 624 


V. McCarthy 
». McGiven 




306 
311 


B. O'Brennan 




311 


V. People 
V. Robbins 




779 
17, 304 


V. Runipff 
V. Wheeler 




493 
706 



Chicago, Burlington, & Q. R. R. 

Co. V. Wilson 676 

Chicago, &c. R. R. Co. v. Adler 450 

V. Barrie 722 

V. Haggerty 722 

K.Iowa 841,721 

V. Joliet 245, 681, 692 

». Lake 344, 671, 673 

V. People 253, 722 

». Smith 204, 205, 668 

V. Stein 680 

V. Triplett 724 

Chidsey». Canton 308 

Child's Case 430 

Childs V. Shower 225, 486 

Chiles V. Drake 179 

V. Monroe 179 

Chilvers v. People 246, 740 

Chiniquy v. People 271 

Chisholm v. Georgia 1, 8, 81 

V. Montgomery 237 

Chrisman v. Bruce 777, 778 

Christ Church v. Philadelphia 842, 

347, 480 
Christian ». Commonwealth 408 

Christmas v. Russell 23 

Christy v. Commissioners 337 

Chumasero v. Potts 141 

Church ». Chapin 69 

V. Rowell 755 

Chute V. Winegar 269 

Cincinnati v. Bryson 246 

V. Rice 596 

Cincinnati College v. State 641 

Cincinnati Gazette Co. v. Timber- 
lake 569, 660, 662 
Cincinnati, &c. R. R.. Co. i). Com- 
missioners of Clinton Co. Ill 
Cincinnati Gas Light Co. o. State 246 
Cincinnati Health Ass'n v. Rosen- 
thal 21 
Cisco V. Roberts _ 781, 733 
City Council v. Benjamin 734 
City National Bank v. Mahan 19 
Claflin V. Hopkinton ' 259, 274 
Clapp V. Cedar County 272 
V. Ely 117 
Clark, Matter of 21, 22 
V. Baltimore 462 
V, Board of Directors 490 



XXVI 



TABLE OF CASES CITED. 



Clark V. Bridge Proprietors 234 

V. Buchanan 785 

V. Clark 134, 136, 348, 449, 
462, 502 
V. Crane 91 

V. Davenport 185, 644 

V. Des Moines 236, 238, 259, 
268, 270 
V. Ellis 216 

V. Holmes 509 

V. Irwin 88 

V. Janesville 144, 191, 192, 272 
V. Lamb 514 

B. Le Cren 244, 246 

V. Martin 361, 358 

V. McCreary 448 

V. McKenzie 785 

V. Miller 227, 704 

V. People 80, 221, 222, 394 

V, Sammons 58 

V. School District 236 

o. State 326, 328. 379 

V. Washington 251, 304, 308 
V. White 662 

Clark's Adm'r v. Hannibal & St. 

Joseph R. R. Co. 724 

Clarke v. Rochester 224 

V. Smith 17 

V. Van Surlay 123 

Clay V. Smith 360 

Clayton v. Harris 78 

Clegg V. Laffer 629 

Clem V. State 400 

Clemens v. Conrad 603 

Clement ». Mattison 420 

Cleveland v. Rogers 609 

Clifton V. Cook 779 

Clinton v. Cedar Rapids, &c. R. R. 

Co. 690 

V. Draper 178 

V. Englebrecht 33 

Clippinger i>. Hepbaugh 167 

Clough V. Unity 704 

Coates V. Muse 17 

Coats V. New York 154, 251, 748 

Cobbett V. Hudson 430 

Cobbett's Case 430 

Coburn v. Ellenwood 241 

V. Harvey 31 

Cochran v. Darey 356 

V. Van Surley 108, 123, 128, 

204, 209 

Cochran's Case 419 

Cock V. Weatherby 628 

Cockagne v. Hodgkisson 634 

Cockrum v. State 434 

Coe V. Schultz 730, 748 

Coffin V. Coffin 163, 558 

V. Rich 351 



Coffin V. State 


336 


V. Tracy 


499 


CofFman v. Bank of Kentucky 


367 


V. Keightley 


278 


Cohen V. Barrett 


172 


V. Ho(f 


117 


V. Wright 


322 


Cohens v. Virginia 


16, 83 


Colburn v. Woodworth 


69 


Cole 0. Bedford 


281 


V. Medina 


305 


V. Muscatine 


252 


V. Wilson 


679 


Coleman v. Carr 


126 


V. Holmes 


456 



Coles V. Madison Co. 232, 339, 450 
Collector V. Day 603 

Colley V. Merrill 31 

Collier v. Frierson 40 

Collins t>. Henderson 83 

Colony V. Dublin 462 

Colt J). Eves 26,94 

Coltin ». Ellis - 141 

Colton V. Rossi 701 

Columbia Co. o. Davidson 271 

V. King 271 

Columbus Ins. Co. v. Curtenius 740 
V. Peoria Bridge 
Co. 740 

Commercial Bank v. lola 266, 610 

Commercial Bank of Natchez v. 

State 340 

Commissioners, &c. v. Aspinwall 145, 

268 
I). Beckwith 658 
V. Bowie 701 

V. Cox 270 

V. Duckett 254, 
304, 309 
V. Gas Co. 244 
t). Holyoke Wa- 
ter Power Co. 

497, 719 

V. Martin 303 

V. Mighels 296 

V. Morrison 613 

V. Pidge 740 

V. Wallace 145 

V. Withers 736 

Commissioners of Revenue v. State 286 

Commonwealth v. Alderman 404 

V. Alger 651, 714, 

747 

V. Anthes 401 

V. Archer 381 

V. Austin 416 

V. Aves 431 

V. Bacon 336 

V. Bakeman 406 



TABLE OP CASES CITED. 



XXVU 



Commonwealth v. Bennett 151, 152 
V. Billings 403 

V. Bird 342, 480 

V. Blanding 526, 561 
V. Blood 22 

V. Bonner 390, 678 
V. Bowden 406 

V. Breed 667, 738 

V. Brennan 346 

V. Brickett 422 

V. Byrne 438 

1!. Chapin 735 

V. Charlestown 737 
V. Clapp 214,215,630. 
548, 727 
V. Colton 749 

V. Com'rs, &c. 448 
V. Cook 404 

V. County Commis- 
sioners 780 
V. Coyningham 231 
V. Crotty 373 
». Cullen 340 
V. Cummings 398 
C.Curtis 386,387,388, 
392, 734 
I). Dailey 396 
». Dana 880 
V. Dean 152 
V. Dewey 179 
V. Dorsey 332 
V. Duane 449, 477 
V. EasternR.R.Co. 724 
V. Emery 515 
V. Emminger 785, 788 
V. Erie R. R. Co. 606 
V. Erie & Northeast 
R. R. Co. 236. 
242, 681, 682, 684 
V. Fells 405 
V. Fisher 595, 698 
V. Fredericks 152 
V. Gamble 337 
V. Goddard 404 
V. Green 782. 
». Hall 22, 33'2 
V. Hamilton Manuf. 

Co. 488 

V. Harman 388 

V. Hartman 210 

V. Hartnett 64 

V. Hippie 109 

V. Hitehings 26, 215 
i. Holbrook 729 

V. Holt 886 

V. Howe 727 

V. Hunt 31 

V. 'Intoxicating Liq- 
uors 726 



Commonwealth v. Jones 112, 122, 786 
V. Judges of Quar- 
ter Sessions 144 
V. Kendall 727 

». Kimball 215, 380, 
449, 477 
V. Knapp 387, 401, 

409 
V. Kneeland 590, 692 
V. Knowlton 31 

V. Leach 31, 787 

V. Locke 142 

V. Lodge 32 

V. Look 651 

». Lottery Tickets 372 
V. Mann 336 

V. Marshall 449, 463, 

477 
V. Maxwell 205, 214 
V. McCloskey 203 

V. McCluley 781 

17. McCombs 227, 778 
V. McLane 514 

V. McWilliams 142, 
144, 151 
V. Meeser 788 

V. Mitchell 387 

». Moore 204, 221, 617 
V. Morey 388 

V. Morgan 390, 392 
V. Mullen 392 

V. Myers 380 

V. New Bedford 

Bridge 365 

V. Newburyport 234, 

285 
V. Nichols 390, 667 
V. Olds 405 

V. Painter 144 

». Patch 242,244,780, 

749 
V. Fenn. Canal Co. 

656, 720, 721 
V. Pittsburg 288 

V. Pittsburg, &c. 

R. R. Co. 496, 666 
V. Pomeroy 215 

V. Porter 401, 416 

V. Potts 216, 217 

V. Putnam 604 

V. Randall 422 

V. Reed 516 

V. Richter 677 

V. Roby 406 

V. Rock 401 

V. Roxbury 229 

V. Ryan 616 

V. Savings Bank 647 
V. Seabrook 512 



XXVIU 



TABLE OF CASES CITED. 



Gommonwealth v. .Semmes 381 

V. Snelling 579 

V. Stodder 246, 749 
V. Stowell 405 

V. Sturtivant 387 

V. Taylor 386, 388 
V. Tewksbury 714, 747 . 
V. Towles 21 

V. Tuck 404 

V. Tuckerman 388 

». Van Tuyl 401 

V. Waite 749 

V. Webster 403 

V. Whitney 513 

' V. Wilkinson 683 

I). Williams 457 

V. Woelper 762 

B. Wolf 695 

». Wood 403 

». Worcester 244, 734 
Commonwealth Bank v. Griffith 16 
Concord v. Boscawen 260 

V. Portsmouth Savings 

Bank 268 

Concord E. R. Co. v. Greeley 661 

Cone V. Cotton 506 

V. Hartford 631, 637, 735 

Coney v. Owen 486 

Confiscation Cases ^ 450 

Congdon v. Norwich " 311 

Conkey v. Hart 350, 353, 354, 

359 

Conn. M. L. Ins. Co. v. Cross 34 

Connell v. Connell 470 

Conner, Ex parte 178 

V. Elliot 20 

V. New York 176, 336 

Connor v. Fulsom 278 

Connors v. People 390, 391 

Conrad v. Ithaca 304 

Conservators of River Tone v. Ash 241 

Contra Costa.R. R. v. Moss 673 

Conway v. Cable 459, 462, 478 

V. Taylor's Ex'r 740 

V. Waverly 648 

Conwell V. Emrie 665 

V. O'Brien 242 

Cook V. Gray 356 

V. Gregg 351,463 

V. Hill 543 

V. Moffat 14, 360 

V. South Park ComVs 703 

V. Vimont 61 

Cooley V. Board of Wardens 606, 731 , 

733 

V. Freeholders • 303 

Coolidge V. Guthrie 661 

V. Williams 496 

Cooper, Be 894 



Cooper V. Barber 

V. Board of Works 

V. Cooper 

u. Greeley 

V. McJunkin 

V. Stone 

V. Sunderland 

V. Telfair 



669 
605 
603, 504 
630, 569 
421 
569 
509 
110, 205, 
220 
V. Williams 667, 661 

Cooper's Case 636 

Coosa River Steamboat Co. v. Bar- 
clay 351, 725 
Copes V. Charleston 145 
Copp V. Henniker 513 
Corbett v. Bradley 92 
Corbin v. Hill 469 
Corfield v. Coryell 20, 498, 607 
Coriell v. Ham 351 
Corliss, Matter of 781 
V. Corliss 94 
Corning v. Greene 143 
Corwin v. New York & Erie R. R. 

Co. 722, 723 

Cory V. Carter 490 

Costar V. Brush 343 

Coster V. New Jersey R. R. Co. 698 
Gotten V. Ellis 78 

Cotton V. Commissioners of Leon 145, 

206, 221 

Couch V. McKee 464 

Cougot V. New Orleans 749 

Coulterville «. Gillen 242 

County Commissioners v. Jones 336 

County Court v. Griswold 666 

Courvoisier, Trial of 413 

Cousins V. State 617 

Coutant V. People 80, 84, 220 

Cover V. Bay town 274 

Covington ». Bryant 304 

V. East St. Louis 185, 242 

V. Southgate 479, 613, 615, 

623 

Cowan V. McCutchen 457 

V. Milbourn 690 

Coward v. Wellington 643 

Cowen V. West Troy 242 

Cowgill V. Long 476 

Cowles V. Harts 61 

Cox V. Bunker 530 

V. Coleridge 384 

V. Cox 604 

V. Lee 576 

V. Louisville, &c.*R. R. Co. 264, 

684 
Coxe V. Martin 357 

Coxhead ». Richards 634 

Coyner v. Lynde ■ 600 

Craft V. State Bank 31 



TABLE OF CASES CITED. 



XXIX 



Craig V. Burnett 


244, 245 


V. Brown 


629 


V. Dimmock 


603 


V. Kline 


738 


V. Missouri 


19 



». Rochester City & Brighton 

R. R. Co. 684, 687 

Crandall, Petition of 430 

V. James 58 

V. Nevada 606 

V. State 21, 498 

Crane v. Meginnis 136, 137, 508 

Crawford v. Delaware 252, 678, 679, 

693 
V. Wilson 38 

Creal v. Keokuk 678 

Crease «. Babcock 142 

Creevy v. Carr ■ 679 

Creighton v. San Francisco 283 

Crenshaw v. Slate River Co. 206, 668 
Creole v. Chicago 624 

Oronan v. Cotting 65 

Crone v. Angell 628 

Cronise v. Cronise 136, 348 

Crosby v. Hanover 665 

V. Lyon 642 

Cross V. Hopkins 231 

Croswell's Case 540 

Crouch V. Hall 31 

Crow V. Bowlby 69 

Crowell V. Hopkinton 274, 278, 281, 

612, 616 
V. Randall 16 

Crowley v. Copley 637, 741 

Crozier ». Cudney 877 

Cruikshanks v. Charleston 441 

Crump V, Morgan 35 

Cubbison v. McCreary 596 

Cnlreth, Ex parte 22 

Cumberland, &c. R. R. Co. v. Bar- 
ren County Court 199 
Cumberland, &c. R. R. Co. v. 
' Washington County Court 462 
Cummerford v. McAvoy 667 
Cumming V. Police Jury 622 
Cummings v. Ash 654, 700 
V. Missouri 42, 319, 322, 
323, 325 
Cunningham v. Brown 562 
Cupp V. Seneca Co. 506, 702 
Curran v. Arkansas 19 
V. Shattuck _ 699, 703 
Currier v. Marietta & Cincinnati 

R. R. Co. 660 

Curry v. Walter 660 

Curtis V. Curtis 528 

V. Gibbs 22, 606 

V. Gill 613 

V. Leavitt 359, 450, 469 



Curtis V. Mussey 645 

t'. State • 382 

V. Whipple 212, 614, 616, 668 

V. Whitney 351, 353 

Cushman v. Smith 700 

Cusic V. Douglass 352, 448 

Cutlip «. Sheriff 179, 182 

Cutts V. Hardee 368 

Cuyler v. Rorthester 499 

Cypress Pond Draining Co. v. 

Hooper 616, 610, .613 

D. 

Dade v. Medcalf 471 

Dailey v. Reynolds 530 

Daily v. Swope 637 

Daily Post Co. v. McArthur 669 

Dakin v. Hudson 509 

Dalby v. Wolf 230 

Dale V. Irwin 756, 779 

V. State 401 

V. The Governor 480 

Dalryraple v. Mead 736 

Dalton V. Water Commissioners 668 
Dana's Case 396, 513 

Dancaster v. Hewson ' 563 

Dane County v. Dunning 612 

Daniel Ball, The 788 

Daniels v. Clegg 64 

Danville v. Pace 204, 209, 210, 448, 

462, 469 
Darcy v. AUain 346, 493 

Dargan v. Mobile 305 

Darling v. Rogers 156 

Darlington ». New York 294 

V. United States 664 

Darrington v. State Bank of Ala- 
bama 19 
Darst V. People 246 
Dart V. Houston 337, 341- 
Dartmouth College v. Woodward 153, 
233, 264, 291, 308, 336, 340, 348, 
438, 718 
Dash V. Van Kleek 76, 77, 112, 116, 
325, 449, 461 
Davenport v. Barnett 59 
V. Stevenson 264 
V. Young 127 
Davenport, &c. Co. v. Davenport 241 
Davidson v. Boston & Maine R. R.. 

Co. 676, 677 

V. Lawrence 466 

Davies v. McKeeby 78, 443, 461 

V. Morgan ■ 244 

Davis V. Bank of Fulton 174 

V. Brown 628 

V. Duncan 561 

V. Holbrook 774 



XXX 



TABLE OF CASES CITED. 



Davis V. Kendallville 


269 


V. Menasba 


. 492 


V. Minor 


454 


V. New York 


261, 253 


V. Reed 


250 


0. Ricliardson 


603 



V. State 138, 175, 185, 215 

V. State Bank 126, 464, 470 

V. Wood 61 

V. Woolnough 179 

Davis's Lessee ». Powell 486 

Davison v. Duncan - 572 

V. Johonnot 125, 490 

Dawkins v. Pawlet 552 

V. Rokeby 663 

Dawson V. Coffman 31 

t'. Duncan 568 

». Shaver 205 

V. State 329 

Day V. Buffington 603 

V. Gallup 16 

V. Green 734 

V. Jones 764 

V. Kent 779 

V. Munson 65 

V. Savadge 614 

V. Stetson 165/ 

Dean v. Borchsenius 469, 474 

V. Gleason 478, 642 

V. Sullivan R. R. Co. 697, 705 

Dean of St. Asaph, Trial of 414 

Deansville Cemetery Association, 

Matter of 666 
Dearborn w. Boston, C. & M. R. R. 

Co. 264, 711, 712 

Deaton v. Polk Co. 711 

Deblois v. Barker 736 
Debolt V. Ohio Life Ins. & Trust 

Co. 154 

De Camp o. Eveland 225 

Decatur ». Fisher 306 

Decatur Co. v. Humphreys 668 

De Chastellux v. Fairchild 66, 111, 

116, 132 

De Cordova v. Galveston 462 

Dedham ». Natick 420 

De Jarnette ii. Haynes 200 

Dekraft v. Barney 428 

Delancey v. Insurance Co. 495 

' Delaplaine v. Cook 457, 458 

Delegal v. Highley 660 

Delmonico ». New York 310 

Delphi V. Evans 659 

De Mill V. Lockwood 446 

Demmg v. Houltpn 269 

De Moss V. Newton 456 

Dempsey v. People ' 393 

Den ». Bolton 582 

V. Downam 467 



Den V. Dubois 
V. Reid 
». Schenck 
Denham v. Holeman 
Denison v. Hyde 
Dennett, Petitioner 
Denning ». Corwin 
Denny v. Mattoon 
V. Reynolds 
Denton v. Jackson 

V. Polk 
Dentzel v. Waldie 



71 

70 

71 

178 

507 

141 

609 

131, 479 

59 

241, 260, 296 

709 

470, 471 



Depew V. Board of Commissioners 735 
V. Trustees of W. & E. Ca- 
nal . 34, 738, 740 
Derby v. Derby 386 
.Derby Turnpike Co. v. Parks 204 
Dergan v. Boston 622 
Detmoldp. Drake 219,220 
Detroit v. Beckman 254 
V. Blackeby 304 
V. Corey 304, 308 
V. Martin 227 
Detroit Free Press v. McArthur 569 
De Varaigne v. Fox 698 
Devin «. Scott 728 
Devlin v. Brady 169 
Devon Witches, Case of 386 
De Voss v. Richmond 268 
Devoy v. New York 79, 225 
Devries v. Conklin 75 
V. Phillips 390 
Dew V. Cunningham 170 
Dewey v. Detroit 306 
DeWolf V. Rabaud 17 
Dibdin v. Swan 569 
Dick V. MoLaurin 611 
Dickens's Case 416 
Dickenson v. Fitchburg 709, 710 
Dickey v. Hurlburt 780 
V. Reed 122 
V. Tennison 662, 704 
Dickinson v. Hayes 59 
Dicks V. Hatch 499 
Dickson v. Dickson 136 
Dietfendorf v. Kef. Cal. Church 682 
Dikeraan v. Dikeman 366, 357 
Dillard «. Collins 633 
Dillingham v. Snow 240, 648 
Dimes v. Proprietors of Grand 

Junction Canal 514, 615, 616 

Dingley v. Boston 666, 698 

Dishon v. Smith 760, 779, 784, 786 
District of Columbia v. Saville 760 
District Township v. Dubuque 68, 71, 

79,90 
Ditson V. Ditson 603, 604, 507 

Dively v. Cedar Falls 267, 514 

Division of Howard Co. 232 



TABLE OF CASES CITED. 



XXXI 



Dixon V. Parmelee 
Dobbins v. Commissioners of Erie 
Co. 
V. State 
Dobyns v. Weadon 780, 

Dodge V. CofBn 

B. County Commissioners 
V. Gridley 

V. Woolsey 14, 42, 154, 
Doe V, Beebe 
V. Braden 

V. Douglass 34, 125, 

V. Mt-Quilkin 
Dole V. Lyon 

V. Tlie Oovernor 
Dominiek ». Bowdoin 
Donahoe v. Richards 
Done V. People 
Donkle V. Kohn 

Donnaher's Case 681, 

Donnell v. State 
Donnelly ». State 
Dorgan v. Boston 
Dorian v. East Brandywine, &c. 

K. R. Co. 
Dorr, Ex parte 427, 

Dorrance Street, Matter of 
Dorsey, Matter of 

V. Dorsey 116, 492, 

V. Gilbert 
Dorsey's Appeal 
Doss V. Commonwealth 
Dothage v. Stuart 
Dougherty v. Commonwealth 



Doughty V. Hope 94, 

a. Somerville «& Eastern 
R. R. Co. 
Douglas V. Freeholders 
Douglas Co. V. Bolles 
Douglass ». Placerville 231, 

». Turnpike Co. 
Dove V. School District 
Dover 1). Portsmouth Bridge 
Dow V. Norris 204, 220, 

Dow's Case 
Dowling V. State 
Dowling's Case 
Downing ». Porter 
V. Wilson 
Doyle V. Continental Ins. Co. 
V. Hallam 
V. O'Doherty 
Drainage of Lands, Matter of 



413 

601 
405 
788 

23 
712 
•185 
342 
653 

14 
205 
648 
567 
342 
139 
686 
407 
597 
684 
742 
393 
622 

711 
428 
735 
78 
603 
125 
179 
401 
486 
393 
604 

707 
70 
269 
237 
683 
490 
738 
224 
22 
332 
396 
373 
630 
226 
69 
562 
665 



Draining Co. Case 
Drake v. Gilniore 

V. Phil., &c. 
Drehman v. Stifel 
Drennan v. People 
Drew V. Davis 



R. R. Co. 

319, 322, 

647, 



636. 638 
461 
723 
364 
64 
648 



Dronberger ». Reed 

Druliner v. State 

Drummond v. Leslie 

Dryfuss V. Bridges 

Duanesburgh v. Jenkins 

Dubois V. McLean 

Dubuque Co. v. R. R. Co. 

Ducat V. Chicago 

Duchess of Kingston's Case 

Dudley V. Mayhew 

Duffy V. Hobson 

Dugan-:;. HoUins 

Duke V. Rome' 
V. Ashbee 

Dulany's Lessee v. Tilghman 

Dunbar v. San Francisco 

Duncan v. Thwaites 

Dunconibe v. Daniell 
V. Prindle 

Duiiden v. Snodgrass 

Dunham t;. Chicago 

V. Hyde Park 
V. Powers 
V. Rochester 



702 
762 
630 

94 

287 

126 

224, 272 

21 



68 
499 
603 
62 
254 
774 
469, 470 
665 
660, 678 
546 
178 
463 
642. 643 
252 
552 
236, 244, 246, 
247 
562 
533 
283 
497 
675 
447, 448 
393 
563 
267, 762 
78 
231, 641 
63 
615 
391 
116, 205, 491 
177 



Dunlap V. Glidden 
Dunman v. Bigg 
Dunmore's Appeal 
Dunn V. Burleigh 

V. City Council 

e. Sargeant 

V. State 

V. Winters 
Dunnovan v. Green 
Du Page Co. ». Jenks 
Durach's Appeal 
Durant v. Essex Co. 
V. Kauffinan 
V. People 
Durham v. Lewistown 
Durkee v. Janesville 
Duverge's Heirs v. Salter 
Dwyer v. Goran 
Dyckman v. New York 
Dyer v. Morris 

V. State 

V. Tuscaloosa Bridge Co 



E. 



Eakin v. Racob 81 

Earle e. Grant 413 

V. Picken 386 

Easley v. Moss 534 

Easoii 0. State 220 
East & West India Dock, &c. Co. 

». Gattke 705 



185 
59 
509 
629 
190 
496' 



xxxu 



TABLE OF CASES CITED. 



East Brandywine, &e. R. K. Co. v. 

Ranek 709 

East Hartford v. Hartford Bridge 

Co. 261, 296, 338 

East Kingston v. Towle 460 

East Lincoln v. Davenport 269 

Eastman v. McAlpin 172 

V. Meredith 296, 303 

East Oakland ». Skinner 238, 268 

East Saginaw Salt Manuf. Co. ;;. 

East Saginaw 342, 347, 480 

East St. Louis i>. Wehrung 250 

V. Witts 287 

Eastern R. R. Co. v. Boston 344 

Easton Bank v. Commonwealth 342 

Eaton, Matter of 430 

V. Boston, &c. R. R. Co. 665, 

672, 677, 679, 681, 712 

V. United States 449, 477 

Echols V. Staunton 661 

Eckhart v. State 216, 217 

Eddings v. Seabrook 676, 678 

Eddy V. Capron 168, 169 

Edgerly v. Swain 528 

Edgerton v. Hart 611 

Edgewood R. R. Co.'s Appeal 661 

Edmonds v. Banbury 757 

Edson V. Edson 22 

Edward's Lessee i\ Darby 84 

Edwards v. Elliott 25 

V. Jaggers 340 

V. James 94 

V. Pope 126, 129 

Eels V. People 215, 218 

Eggleston v. Doolittle 682 

Egyptian Levee Co. v. Hardin 622, 

637, 741 

Eidemiller v. Wyandotte 669 

Eimer v. Richards 69 

Eitel V. State 166, 192 

Elam ti. Badger 633 

Elbin V. Wilson 777 

Eider V. Barrus 736 

V. Reel ' 603 

Eldridge v. Kuehl 465, 649 

». Smith 666 

Election Law, Matter of 774 

Elijah V. State 406 

Elliott V. Ailsbury 629 

V. Fairhaven & Westville 

R. R. Co. 688 

V. People 408 

Ellis V. Jones 361 

V. Pacific R. R. Co. 668 

V. State 490 

EUyson, Ex parte 786 

Elmendorf o. Carmichael 118 

V. New York 94 

B. Taylor 16 



Elmwood V. Marcy 
Else V. Smith 
Elwell B. Shaw 
Ely V. Holton 
V. Thompson 



268 

372 

647, 648 

462 

215, 224, 434 



Embury v. Conner 199, 219, 220, 661, 

676 
Emerick v. Harris 513 

Emerson v. Atwater 62, 65 

Emery v. Gas Co. 622 

V. Mariaville 268 

Emery's Case 164, 384 

Empire City Bank, Matter of * 604, 606 
Encking v. Simmons 88 

Enfield Toll Bridge Co. v. Hart- 
ford & N. H. R. R. Co. 343 
Engle V. Shurtz 450, 477 
English V. Chicot Co. 237 
V. New Haven, &c. Co. 482 
V. Oliver 165 
Enswortli v. Albin 166, 758 
Entinck v. Carrington 371, 377 
Erie R. R. Co. v. Commonwealth 343 
V. New Jersey 606 
V. Pennsylvania 154 
Erie & N. E. R. R. Co. v. Casey 128 
Erlinger v. Boneau 144, 152, 180 
Ernst V. Kunkle 632 
Ervine's Appeal 111, 128, 129, 212, 

437, 438 
Esman v. State 406 

Essex Co. V. Pacific Mills 85 

Essex Witches, Matter of 385 

Este V. Strong 61 

Estep V. Hutchman 125, 127 

Esty V. Westminster 281 

Etheridge v. Osborn 68 

Eustis V. Parker 264 

Evans v. Montgomery 326, 361 

V. Myers 84 

V. Populus 336 

V. Sharpe 179 

Evansville, &c. R. R. Coi v. Dick 679 
Evergreen Cemetery v. New Haven 666 
Ewing V. Filley -779, 787 

Exchange Bank v. Hines 215 

Eyre v. Jacob 221 

Ezekiel v. Dixon 68 

F. 

Facey v. Fuller 509, 611 

Fairchild v. Adams 650 

Fairfield v. McNarey 59 

V. Ratcliffe 622 

Fairhurst v. Lewis 420 

Fairman v. Ives 643 

Falconer v. Campbell 18, 325 

V. Robinson . 185 



TABLE OF CASES CITED. 



XXXIU 



Fairbault v. Misener 


84 


Fales V. Wadsworth 


457 


Fall V. Hazelrigg 


64, 85 


Falvey, Jn re 


164, 430 


Fanning ». Gregorie 


740 


Fansler v. Parsons 


758 


Farley v. Dowe 


362 



Farmei's' & Mechanics' Bank v. 

JButchers' & Drovers' Bank 268, 270 
Farmers' & Mechanics' Bank v. 

Smith 84, 221, 360 

Farney v. Towle 16 

Farnsworth v. Lisbon 142, 640 

V. Vance 358 

Famum v. Concord 303 

Farr v. Sherman 75 

Fawcett v. Fowliss 609, 511 

V. York & North Midland 
R. R. Co. 722, 723 

Fearing v. Irwin 481, 676 

Fehr V. Schuylkill Nav. Co. 712 

Fell V. State 146, 162, 345 

Felton's Case 384 

Fenton v. Garlick 22, 607 

Fenwick v. Gill 486 

Ferguson v. Landraw 281, 488, 608, 

' 616 

V. Loar 661 

Fernandez, Ex parte 430 

Ferraria v. Vasconcellos 581, 682 

Ferris v. Bramble 662 

Fetter, Matter of 21 

Field V. Des Moines 237, 655 

V. Gibbs 23 

V. People 78, 139 

Fifield V. Close 602, 603 

Filber i>. Dauterman 528 

Finney v. Boyd 59 

Fire Department v. Holfenstein 21 

V. Noble 21 

V. Wright 21 

Fireman's Association v. Louns- 

bury 178, 179 

First National Bank of Wheeling r. 

Merchants' National Bank 376 

First Parish, &c. v. Middlesex 709, 711 

V. Stearns 782, 783 

Fischli V. Cowan 59 

Fish V. Collens ' 781 

V. Kenosha 270 

Fisher v. Deering 64 

V. Haldeman 17 

V. Hildreth 774 

V. Horricon Co. 668 

V. McGirr 215, 374, 728, 748 

Fisher's Lessee v. Cockerell 16 

Fisher's Negroes v. Dobbs 462 

Fishkill V. Fishkill & Beekman 

Plank Road Co.. 177 



Fisk V. Kenosha 475 

Fiske V. Framingham Manuf. Co. 668 
V. Hazzard 274 

Fitchburg R. R. Co. v. Grand 

Junction R. R. Co. 719, 724 

Fitzgerald v. Robinson 682 

Flanagan ». Philadelphia 740 

Flatbush, In re 178, 623 

Fleischner v. Chadwick 186 

Fletcher v. Auburn & Syracuse 

R. R. Co. • 700 

V. Lord Somers 62 

V. Oliver 78, 173 

«. Peck 108, 205,221, 319, 

325, 334, 699 

Flint V. Pike 560 

Flint, &c. Plank Road Co. v. 

WoodhuU 116, 128, 226 

Flint River Steamboat Co. v. Fos- 
ter 204, 220, 513 
Florentine v. Barton 123, 125 
Flournoy v. Jeffersonville 512 
Floyd V. Mintsey 61 
Foley V. People 381 
». State 179, 182 
Foote V. Fire Department 748 
Forbes v. Halsey 458 
Ford V. Chicago & N. W. R. R. 

Co. 673, 684 

V. County Commissioners 695 

Fordyoe v. Godman 164 

Fort Dodge V. District Township 777 

Forward v. Hampshire, &c. Canal 

Co. 656 

Fosdick V. Perrysburg 185 

Foss V. Hildreth 577 

Foster v. Essex Bank 220, 369, 448, 

471 

V. Kenosha 644 

V. Neilson 14 

IS. Scarff 760, 776 

Fowler, Matter of 673 

V. Beebe 778 

y. Chatterton 457 

V. Chichester 667 

V. Danvers 277 

V. Halbert 486 

V. Pierce 187 

Fowles V. Bowen 633 

Fox, Ex parte 367 

■ V. State of Ohio 26, 244 

V. W. P. Railroad Co. 700 

Foxcroft V. Mallett 17 

Frain v. State 387 

Frankfort ». Winterport 169, 269 

Franklin v. State ' 415 

Franklin Bridge Co. v. Wood 205, 220 

Frary v. Frary 603 

Freeborn v. Pettibone 367 



XXXIV 



TABLE OF CASES CITED. 



Freedtnan v. Sigel 603 

Free Fishers' Co. v. Gann 660 

Freeholders, &c. v. Barber 246 

Freeland v. Hastings 212, 259, 281. 

608, 616 

Freeman v. Hardwick 774 

V. Price 530 

Freeport v. Marks 264 

Frees v. Ford 199 

Freeze v. Tripp 64 

Freleigh v. State 345 

Frellsen v. Mahan 639 

French v. Braintree Manuf. Co. 667 

V. Camp 737 

V. Commonwealth 386 

V. Edwards 93 

V. Kirkland 636 

V. Nolan 782 

V. State 449 

Friend v. Hamill 777 

Frink v. Darst 62 

Frisbie v. Fowler 529 

Frolickstein v. Mobile 695, 784 

Frost V. Belmont 166, 231, 267 

Fry V. Bennett 569 

V. Booth 94, 780 

Fry's Election Case 756, 756 

Fryer v. Kinnersley 633 

Fuller ». Dame 167, 168 

V. Eddings 676 

». Groton 255, 256 

V. Hampton 301 

FuUerton v. Bank of United States 17 

Fulton V. Davenport 624 

V. McAfee 16 

Furman v. New York 68 

V. Nichol 348 

Furman Street, Matter of 621, 677, 

709 
Furnell ». St. Paul 311 

Furniss v. Hudson River R. R. Co. 705 

G. 

Gabbert v. Railroad Co. 177 

Gage V. Graham 287, 288 

V. Shelton 528 

Gaines v. Buford 484 

V. Coates 749 

V. Gaines 136 

Gale V. Kalamazoo 493, 730, 749 

V. Mead 94 

V. South Berwick 269 

Galen v. Clyde & Rose Plank Road 

Co. 303 

Galena& Chicago Union R. R. Co. 

V. Applebjr 719, 724 

Galena & Chicago Union R. R. Co. 
.«. Dill 724 



Galena & Chicago Union R. R. Co^ 

V. Loomis 718, 724 

Galesburg v. Hawkinson 122, 232 

Gall V. Cincinnati 749, 760 

Gallatin v. Bradford 244, 247 

Gannett v. Leonard 125 

Gantley'a Lessee ». Ewing 356 

Garbett, Ex parte 417 

Garcia v. Lee 15 

Gardner v. Collins 17 

V. Hope Ins. Co. 341 

V. Newburg 655, 665, 696, 

697, 700, 701 

V. The Collector 164 

V. Ward 777 

Garland, Ex parte 319, 320, 321, 322, 

326 

V. Brown's Adm'r 361 

Garner v. Gordon 432 

Garr ». Selden 652, 556 

Garrard Co. Court ». Kentucky. 

River Navigation Co. 217 

Garrett v. Beaumont 462 

V. Cordell 364 

V. Doe 462 

V. St. Louis 630, 631 

Garrigas v. Board of Com'rs 172, 179 

Garrison v. New York 306 

V. Tillinghast 605 

Gartin v. Penick 682 

Gascoigne v. Ambler 629 

Gas Company v. San Francisco 308 

V. Wheeling 71 

Gaskill V. Dudley 302 

Gates V. Neal 777 

Gathercole v. Miall 548, 669 

Gaulden v. State 417 

Geary v. Simmons 69 

Gebhardt v. Reeves 690, 699 

Geebrick v. State 142, 149, 151 

Gelpecke v. Dubuque 18, 145, 268 

Gentile v. State 166, 741 

Genther v. Fuller 649 

Gentry v. Griffith 168, 209 

George v. Gillespie 58 

V. Oxford 267 

Georgia v. Stanton 1 

Georgia, &o. R. R. Co. v. Harris 499, 

501 
Gerard v. People 405 

German, &c. Cong. v. Pressler 581 
German Reformed Church v. Sei- 

bert 682 

Gerrish v. Brown 735 

Gerry v. Stoneham 461 

Giacomo, In re 332 

Gibbons v. Mobile, &c. R. R. Co. 14.5, 

474 
V. Ogden 10, 11, 72, 738 



TABLE OP OASES CITED. 



XXXV 



Gibbs V. Gale 


457 


Gibson, Ex parte 


431 


V. Armstrong 


682 


V. Choteau 


16, 466 


0. Emerson 


109 


e. Hibbard 


471 


V. Mason 


441, 761 



Giesy v. Cincinnati, W. & Z. R. R. 

Co. 676, 697, 711 

Gifford o. Railroad Co. 179 

Gil V. Davis 169 

Gilbert 0. People 553, 666 

Gildersleeve v. People 605 

Gilkeson v. Frederick Justices 230 
Gill V. Parker 727 

Gillespie v. Palmer 752, 777, 778, 781 
V. State 179, 182 

Gillette v. Hartford 628 

Gilliland v. Phillips 469 

V. Sellers's Adm'r 499 

Gillinwater v. Mississippi & Atlan- 
tic R. R. Co. 62, 100, 658, 669 
Gilman v. Cutts 445 
V. Lockwood 300 
V. Lowell 628 
e. Philadelphia 11,731,733, 
738 
V. Sheboygan 842 
Gilmer v. Lime Point 664, 660, 672, 

702,703 

Ginn V. Rogers 499 

Girard v. Philadelphia 232, 689 

Girard Will Case 589 

Girdner v. Stephens 42, 454 

Gladden v. State ■ 393 

Gleason v. Dodd 22, 23, 607 

V. Gleason 503 

Gloucester Ins. Co. v. Younger 18 

Glover V. Powell 681, 737 

Godard, Petitioner 242, 244, 735 

Goddard v. Jacksonville 726 

Goddin ». Crump 144, 225 

Goenan v. Schroeder . 357 

Goetcheus v. Mathewson 505, 777, 778 

GoflF V. Frederick 232 

Goggans v. Turnispeed 349 

Gohen V. Texas Pacific R. R. Co. 185 

Goldthwaite v. Montgomery 231 

Good V. Zeroher 470 

GoodelJ, Matter of 488 

V. Jackson 62 

Goodenough, In re 432 

Goodin V. Thoman 78, 337 

Goodman v. Munks 455 

V. State 392 

Goodrich v. Detroit 238 

V. Winchester, &c. Co. 622 

Goodsell V. Boynton 190 

Goodtitle V. Kibbee 653 



Goodtitle V. Otway 62 

Goodwin V. Thompson 31 

Gooselink v. Campbell 734 

Gordon v. Appeal Tax Court 154, 342 

V. Budding Association 495 

V. Caldcleugh 16 

». Cornes 284, 285, 614, 616 

V. Farrar 777 

V. Ingraham 111 

Gorham ». Campbell 779 

V. Cooperstown 311 

V. Luckett 394 

V. Springfield 144 

Gorman v. Pacific R. R. Co. 341, 723 

Gormley v. Taylor 221 

Goshen v. Richmond 481 

V. Stonineton 203, 466, 472 

Goshorn u. Purcell 462, 470 

Gosliu V. Cannon 634, 562 

Gosling jj. Veley 244, 782 

Gosset ». Howard 162 

Goszler 0. Georgetown 251, 678 

Gottbehnet v. Hubachek 629 

Gough V. Dorsey 109 

V. Pratt 115 

Gould V. Hudson River R. R. Co. 676, 

680 
V. Sterling 238, 268, 269 

Gove V. Epping 271, 616 

Governor v. Porter 115 

Gozzle V. Georgetown 251, 678 

Grace v. McElroy 65 

Graham, Ex parte 462 

Grammar School v. Burt 840 

Granby v. Thurstdn 282 

Grand Gulf R. R. Co. D. Buck 342 
Grand Rapids v. Hughes 236 

Grand Rapids Booming Co. v. Jar- 
vis 680 
Grand Rapids, &c. R. R. Co. v. 

Heisel 679 

Granger v. Pulaski Co. 296, 303 

Grannaham v. Hannibal, &c. R. R. 

Co. > 719, 725 

Grant v. Brooklyn 310 

V. Courter 209 

V. Erie 254 

V. Leach . 496 

V. Spencer 94 

Grives v. Blanchet 529 

«. Otis 252, 677 

Gray v. First Division, &c. 684 

V. Pentland 642 

V. State 494 

Gray's Lessee v. Askew 64 

Great Falls Manufacturing Co. v. 

Fernald 668 

Great Western R. R. Co. v. Deca- 
tur 722 



XXXVl 



TABLE OP CASES CITED. 



Green v. Bidde 


335 


V. Carson 


749 


V. Chapman 
V. Collins 


569 
499 


V. Custard 


607 


V. Holway 
</. Mayor, &c. 
V. Neal's Lessee 


603 

178 

17, 18 


V. Portland 


692 


V. Heading 
V. Sarmiento 


678 
23 


V. Savannah 


730 


V. Shumway 
V. Swift 


332. 754 
677, 742 


V. Telfair 


677 


V. Van Buskirk 


23 


V. Warren Co. 


94 


V. Weller 


71, 72, 166 



Greencastle, &c. Co. v. State 65, 185 
Greencastle Township v. Black 70, 71, 
72, 87, 95 
Greene v. Briggs 374, 437, 513 

Greenlaw v. Greenlaw 502 

Greenough v. Greenough 109, 110, 
111, 114, 129, 472 
Greensboro' v. Mullins 248 

Greenville & Columbia R. R. Co. ». 

Partlow 710, 711 

Gregory v. Bridgeport 266 

Grier v. Shackleford 786 

Griffin V. Martin 681 

V. McKenzie 455 

V. Mixon 460 

V. New York 264 

V. Ranney 603 

V. Wilcox 354, 449, 450 

V. Williamstown 311 

Griffin's Ex'r v. Cunningham 116, 1 32, 

479 492 
Griffing V. Gibb ' 17 

Griggs V. Foote 252 

Grim V. Weisenberg School Dis- 
trict 467, 612 
Grimes v. Coyle 634, 562 
V. Doe 469 
Grob V. Cushman 165 
Groesbeek v. Seeley 455, 469 
Groesch v. State • 161, 152 
Grogan v. San Francisco 294, 335 
V. State 404 
Groove V. Gwin 141 
Grosvenor v. Chesley 851 
V. United Society 682 
Grove V. Brandenburg 652 
U.Todd 470 
Grubb V. Bullock 139 
Grumbine v. Washington 311 
Grundy v. Commonwealth 448 
Guard V. Rowan 462 



Guenther ». People 406 

Guild V. Rogers 351, 363 

Guile V. Brown 613 

Guilford v. Cornell 177 

V. Supervisors of Chenan- 
go 257, 279, 283, 288, 
339, 475, 612 
Guillotte V. New Orleans 749 

Guiterrez, Ex parte 332 

Gulick V. New 782 

V. Ward 167 

Gunn V. Barry 42, 43, 351, 352 

Gut V. State 332 

Gutman v. Virginia Iron Co. 205 

H. 

Haas V. Chicago, &o. R. R. Co. 722, 

724 

Hackettstown v. Swackhamer 236 

Hadden v. Chorn 582 

V. The Collector 172 

Hadduck's Case 239 

Hadley v. Mayor, &c. 785, 788 

Iladsell 27. Hancock 256 

Hagan v. Hendry 579 

Hagany v. Cohnen 613 

Hagar B. Supervisors of Yolo 636 

Hagerstown v. Dechert 215, 218 

V. Schuer 232 

Haggard v. Hawkins 178 

Haight V. Grist 603 

V. Lucia 394 

Haines v. Levin . 613 

Haines' Appeal 613 

Hakewell, Matter of 432 

V. Ingram 676 

Hale V. Everett 46, 72, 581, 682, 685, - 

689 

V. Kenosha 641 

V. Lawrence 747 

V. Wilkinson 603 

Haley v. Clark 139 

V. Philadelphia 114, 462 

V. Taylor 421 

Hall V. Bray 156 

V. Bunte 176 

». DeCuir 715,722,748 

V. Marks 512 

V. Thayer 515, 616 

1). Washington Co. 412 

V. Williams 22, 23, 606 

Hallock V. Franklin Co. 704 

V. Miller 630 

Halstead v. New York 236, 267, 269, 

269 

Hami). McCJaws 201 

». Salem' 665 

Hamersley v. New York 700 



TABLE OP CASES CITED. 



XXXVU 



Hamilton v. Carthage 312 

V. Kneeland 31 

V. St. Louis County Court 47, 

80 

Hamilton Co. v. Maasacbusetts 16 

V. Migbels 296 

Hamlet v. Taylor 190 

Hamlin v. Meadville 237, 267 

Hammett v. Philadelphia 345, 6 15, 621 , 

632 

Hammond v. Anderson 62 

V. Haines 150 

V. People 431 

Hampshire v. Franklin 233 

Hampton v. Coffin 704 

». MoConnel 23 

V. Wilson 567 

Hamrick v. Rouse 154 

Hand V. Ballon 458 

Handy v. Chatfield 364, 359 

V. State 401 

Haney v. Marshall 21 

Hannel v. Smith 66 

Hannibal, &c. R. R. Co. v. Husen 716 

Hannon v. St. Loujs Co. Court 303 

Hanover v. Turner 602, 604 

Hansen v. Vernon 608 

Hapgood V. Doherty 513 

Happel V. Brethauer 166 

Happy V. Morton 581 

V. Mosher 506 

Harbaugh ». Cicotte 766, 772, 782 

Harbeck v. New York 226 

Hard B. Nearing 440, 44 1 

Hardiman v. Downer 362 

Hardenburg v. Lockwood 681 

Harding v. Alden 503, 604, 607, 

' 508 
V. Funk 668, 709 

V. Goodlet 668 

V. Rockford, &c., R. R. 

Co. 267 

V. Stamford Water Co. 681 

Hardwick v. Pawlet 420 

Hare v. Hare 503 

V. Mellor 542 

Harlan v. People 26 

Harmon v. Dreber 682 

V. Wallace 366 

Harmony v. Mitchell 747 

Harp V. Osgood 422 

Harpending i'. Haight 141, 187 

V. Reformed Church 17 

Harper Vt Commissioners 441 

V. Richardson 700, 702 

Harriman v. Boston 311 

Harrington v. County Com'rs 704 

V. Miles 628 

V. State 403 



Harris v. Colquit 59 

V. Dennie 15 

V. Harrington 642 

V. Harris 68 

V. Inhabitants of Marble- 
head 487 
V. Morris 420 
V. People 178 
V. Roof 167, 168 
V. Rutledge 471 
Harrison v. Baltimore 730 
V. Bridgeton 232, 233, 293 
V. Bush 633, 634 
V. Harrison 503, 607 
V. Leach 74 
V. Metz 462 
V. Sayer 64 
V. Stacy 465 
V. State 206 
Harrison Justices v. Holland 232 
Harrow v. Myers 66 
Hart V. Albany 249, 714, 747 
V. Bostwick 456 
V. Brooklyn 306, 736 
V. Evans 769 
V. Henderson 469 
V. Holden 278 
V. Jewett • 69 
V. State 332 
Harteau v. Harteau 604 
Hartford v. Omaha 92 
Hartford Bridge Co. v. Union Ferry 

Co. 205, 220 

Hartland v. Church 623 

Hartman, Ex parte 430 

Hartt V. Harvey 784 

Hartung v. People 408, 449, 477 

Harvey v. Lackawanna R. R. Co. 676, 

679, 709 
V. Thomas 205, 442, 662 

Harward v. St. Clair, &c. Drainage 

Co. 475 

Harwood v. Astley 547 

Hasbrouuk ». Milwaukee 261, 284, 

286, 476 

V. Shipman 367 

Haskell v. Burlington 488 

V. New Bedford 199, 220, 

676 

Hastings v. Lane 461 

». Lusk 566 

Haswell's Case 536 

Hatch V. Lane 533, 634 

V. Vermont Central R. R. 

Co. 677, 696, 712 

Hatcher v. Toledo, &c. R. R. Co. 462 
Hatcheson v. Tilden 782 

Hatheway v. Sackett 232 

Hathorn v. Lyon 447 



jcxxvm 



TABLE OF CASES CITED. 



Hatzfield v. Gulden 169 

Haverill Bridge Props, v. County 

, Commissioners 701 

Hawbecker v. Hawbecker 68 

Hawkins v. Barney's Lessee ' 336 

u. Carrol 70 

V. Commonwealth 282 

V. Governor 110, 141, 194 

V. Jones 68 

V. Lawrence 668 

Hawthorne v. Calef 358 

Hay V. Cohbes Company 668, 680 

Hayden v. Foster 648 

a. Noyes 244, .246, 247 

Hayes v. Reese 58 

Haynes v. Burlington 665 

V. Thomas 679 

Hays V. Brierly 677 

V. Risher 673 

Haywood v. Savannah 241 

Hazen v. Essex Company 668 

Head.!). Providence, &c. R. R. Co. 270 

Heard v. Brooklyn 690 

V. Heard 190 

Heath, Exparte 94, 776, 779, 783, 

784 
Hector «. State 405 

Hedgecock v. Davis 84 

Hedges v. Madison Co. 303 

Hedley v. Com'rs of Franklin Co. 220 
Hegarty's Appeal 122, 128 

Hegeman v. Western R. R. Co. 718, 

720 

Helena o. Thompson 311 

Henderson ». GrifBn 17 

V. Lambert 628 

V. Oliver 649 

Henderson's Distilled Spirits 372 

Henderson's Tobacco 185 

Hendrick's Case 26 

Hendrickson v. Decow 582 

V. Hendrickson 190, 192, 

226 

Henisler ». Freedman 376 

Henley v. Lyme Regis 304, 309 

Henry o. Chester 642 

V. Dubuque & Pacific R. R. 

Co. 697, 703, 708 

V. Henry 179 

V. Tilson 80 

Henshaw ». Foster 103,761 

Hensley «. Force 23 

Hensoldt v. Petersburg 165 

Henton v. State 378 

Henwood v. Harrison 651 

Hepburn ». Curts 448 

Hepburn's Case 661 

Berber v. State 328 

Herrick v. Randolph 342, 699 



Hersey ». Supervisors of Milwau- 
kee 642, 648 
Hershaw v. Taylor 509 
Hess ». Johnson 364 
V. Pegg 64, 156, 231, 232 
V. Wertz 468 
Hessler v. Drainage Com'rs 476 
Hewison v. New Haven 264, 294, 308 
Hewitt V. Prince 413 
Heydenfeldt v. Towns 617 
Heyfron, Exparte 607 
lieyward. Matter of 22 
V. Judd 351, 367 
V. New York 200, 219, 662, 
692, 698 
Hibbard v. People 374, 728 
Hickerson v. Benson 774 
Hiekey v. Hinsdale 94 
Hickie v. Starke 15 
Hickman's Case 662 
Hickok V. Plattsburg 305 
Hiekox ». Tallman 467, 458 
Hicks V. Steigleman 464 
Higert v. Green Castle 311 
Higgins V. Chicago 704, 705 
High ». Shoemaker 441 
High's Case 765 
Hilbish V. Catherman 281 
Hildreth v. Lowell 666, 735 
Hill, Exparte 429 
V. Boyland 98 
V. Commissioners 178 
». Higdon 622, 630, 632, 634, 636, 
641, 646 
V. Hill 786 
V. Kessler 352 
«. Krifke 455 
». Morse 59 
V. People 396, 500 
V. Spear 728 
V. Sunderland 117 
V. Wells 515 
Hill's Case 393 
Hillard v. Moore 366 
Hilliard v. Connolly 116 
V. Miller 472 
Hills V. Chicago 81, 204 
Himmelman v. Carpentier 467 
Hinchman v. Paterson Horse R. R. 

Co. 692, 695, 696, 740 

V. Town 601 

Hind 1). Rice 179 

Hindc V. Vattier 17 

Hindman v. Piper 128 

Hine, The, v. Trevor 24 

Hines v. Leavenworth 622, 632 

V. Lockport 264, 311 

Hingham, &c. Turnpike Co. v. 

Norfolk Co. 200 



TABLE OF CASES CITED. 



XXXIX 



Hingle ». State 173,175 

Hinman v. Chicago, &c. R. R.- Co. 723 
Hinsen v. Lett 606 

Him V. State 186, 345 

Hiss V. Bartlett 162 

Hoag V. Hatch 528 

V. Switzer 678 

Hoar ». Wood 665, 556 

Hoare v. Silverlocke . 559 

Hobart V. Supervisors, &c. 144, 205 
Hobbs & Johnson, Ex rd 490 

Hoboken «. Phinney 644 

Hodges V. Buffalo 235, 258 

Hodgson tf. Millward 450, 451 

V. Scarlett 554 

HoiFman v. Hoffman 22, 23, 503, 

604 

V. Locke 512 

V. State 404, 405 

Hogg, Ex parte 179 

V. Zanesville Canal Manuf. 

Co. 34, 740 

Hoke V. Henderson 439 

Holbrook ». Finney 446 

V. Murray 22, 23 

Holden ». James 205, 454, 490, 

491 
Holders. State 399 

Holland v. Dickerson 351 

V. Osgood 94 

HoUey v. Burgess 529 

HoUingsworth ». Duane 394 

Hollister v. Hollister 503, 504 

Holloway ». Sherman 351, 448 

Holman's Heirs v. Bank of Norfolk 1 23, 

606, 507 

Holmes, Ex parte 22 

V. Holmes 348, 508 

V. Jennison 16, 22 

Holt ». State 329 

Holton V. Milwaukee 630, 709 

Holyoke Co. v. Lyman 495 

Home V. Bentinck 652 

Home Ins. Co. v. Augusta 349 

Home of the Friendless v. Rouse 342 

Homestead Cases 352 

Hood V. Finch 704 

V. Lynn 268 

V. State 23 

Hook V. Hackney 629 

Hooker v. Hooker 116 

V. New Haven, &c. Co. 676, 

679, 680 

Hooper v. Bridgewater 666 

». Emery 237, 608, 616 

Hoover v. Barkhoof 227 

1). Mitchell 59 

V. Wood 199 

Hope V. Jackson 448 



Hopkins V. Hopkins 503 

Hopple V. Brown 237, 270, 296 

Hopps V. People 380 

Hopson, In re 

Horbach v. Miller 

Horn V. Chicago, &o. R. R. Co. 

Home i>. Atlantic, &c. R. R. Co. 



Horton v. Baptist Church 
Hosmer ». Loveland 
Hotchkiss V. Oliphant 
Hottentot Venus Case 
Houghton V. Page 
House V. Rochester 
Houston V. Moore 
Howard, Ex parte 

V. Church 

V. Diarmid 

». McDiamid 

V. Moot 

V. Shields 

V. State 

». Zeyer 
Howard County, Division of 
Howe V. Plainfield 
Howell V. Bristol 

V. Buffalo 

V. Fi'y 

Hoxie ». Wright 

Hoyt V. East Saginaw: 

V. Hudson 

V. Sheldon 

Hubbard v. Bell 

». Brainerd 
Hubbell V. Hubbell 
Huber v. People 

V. Reily 
Huckle ». Money 
Hudson V. Geary 

K. Thome 
Hudspeth ». Davis 
Huff V. Bennett 
Hughes o. Baltimore 

, V. Hughes 
Hughey's Lessee v. Howell 
Hull ». Hull 

. V. Marshall Co. 
V. Miller 
Hulseman v. Reras 
Humboldt v. Long 
Humboldt Co. ». Churchill 

Com'rs 
Hume V. New York 
Humes w. Mayor, &c. 

» Tabor 
Humphrey v. Peques 
Humphries v. Brogden 
Hungerford's Appeal. 
Hunsaker v. Wright 



429 

454 

724 

722, 

723 

582 

543, 5.58 

665, 567 

429 

31 

676 

25 

140 

631 

788 

232 

353 

779 

78 

■ 486 

179 

513 

627, 631 

285 

613 

23, 507 

631, 632 

311 

16 

736 

451, 461 

603, 607 

178 

322, 325, 437, 764 

377 

596, 734 

245 

367 

560, 567 

254 

84 

479, 623 

603, 607 

270 

156 

754, 788 

269 

Co. 

176, 226 
306 
262 
373 
342 
716 
69 
164, 643 



xl 



TABLE OP CASES CITED. 



Hunscom v. Hunscom 


696 


Ireland v. Turnpike Co. 


199 


358 


Hunt V. Bennett 643, 546 


577 


Iron Mountain Co. v. Haight 


187 


V. Murray- 


193 


Iron R. R. Co. v. Ironton 




673 


Hunt's Lessee v. McMahon 


486 


Irons V. Field 




529 


Hunter, Ex parte 


322 


Isom V. Mississippi, &c. R. R. Co. 


215 


V. Cobb 


603 


Iverson v. State 




185 


Huntsville v. Phelps 


246 








Huntzinger v. Brock 


351 


J. 






Hurford v. Omaha 


94 






Hurley v. Rowell 


649 








V. Van Wagner 


774 


Jaeoway v. Denton 


42 


350 


Hurst V. Smith 


431 


Jack V. Thompson 




604 


Huse V. Merriam 


647 


Jackffon, Matter of 


425 


429 


Huson V. Dale 


530 


V. Butler 




364 


Hutcheson v. Peck 


420 


V. Chew 




17 


Hutchinson v. Wheeler 


630 


V. Commonwealth 


392 


393 


Hutson V. New York 


304 


V. Hathaway 




699 


Hyatt V. Bates 


68 


V. Jackson 


503 


608 


V. Kondout 


305 


V. Lyon 




448 


V. Taylor 67, 68 


V. Munson 




321 


Hyde B. Brush 


768 


V. beeves 




179 


». Melvin 


775 


V. Rutland & B. 


R. R. 




V. White 


186 


Co. 


699 


723 


Hydes v. Joyes 


250 


V. Shawl 
V. Vedder 
V. Walker 




156 

61 

774 


I. 




V. Winn's Heirs 
V. Young 




700 
94 


Igoe ». State 


179 


Jackson Iron Co. ». Auditor-Gen- 




1 linois Cent. R. R. Co. v. Arnold 


723 


eral 




605 


V. Irvin 


343 


Jacob V. Louisville 




711 


V. Wren 


165 


Jacobs V. Cone 




393 


Illinois Conf. Fem. Col. v. Cooper 


241 


u. Smallwood 




357 


Illinois & Mich. Canal v. Chicago 




James v. Commonwealth 




25 


& R. I. R. R. Co. 


344 


V. Reynolds 




440 


Illinois, &c. Co. v. Peoria, &c. As- 




V. StuU 




356 


sociation 


738 


Jameson v. People 




239 


Imlay v. Union Branch R. R. Co. 


686, 


Jamison v. Burton 




64 




689 


Jane ». Commonwealth 




85 


Indiana Cent. R R. Co. v. Potts 


99, 


Janson v. Stewart 




629 


176, 176 


182 


Jarnigan v. Fleming 




530 


Indianapolis, &c. R. R. Co. v. Ker- 




Jarvis v. Hatheway 




662 


cheval 345, 714, 719, 722 


723 


Jefferson Branch Bank v. ' 


Skelley 


18, 


Indianapolis, &c'. R. R. Co. v. Smith 


679 




42 


154 


Indianapolis, &u. R. R. Co. v. 




Jefferson City v. Courtmire 


244 


Townsend 722 


723 


Jeffersonville, &c. R. R. 


Co. ». 




Indianapolis Sun v. Horrell 


629 


Hendricks 




21 


Ingalls V. Cole 


68 


Jeffersonville, &c. R. R. 


Co. V. 




Inge V. Police Jury 


665 


Nichols 




723 


Inglee v. Coolidge 


15 


Jeffersonville, &c. R. R. 


Co. V. 




Inglis V. Sailors' Snug Harbor 


17 


Parkhurst 




723 


Ingraham v. Regan 


64 


Jeffrey v. Brokaw 




649 


Insurance Co. v. Ritchie 


477 


Jeffries v. Ankeny 


494 


777 


V. Treasurer 


16 


V. Lawrence 




236 


V. Yard 


642 


V. Williams 




715 


Intendant of Greensboro' v. Mul- 




Jenkins ». Andover 




261 


lins 


243 


V. Charleston 




607 


Iowa R. R. Land Co. v. Soper 


463, 


V. Ervin 




72 




488 


V. Waldron 




777 



TABLE OF CASES CITED. 



xli 



Jennings v. Paine 




652, 566 


Judson V. Bridgeport 




658 


V. Stafford 




509 


V. Reardon 


245 


, 419 


Jerome v. Ross 




655 


Justices V. Murray 




25 


Jett V. Commonwealth 




25 


J 






Joannes «. Bennett 




534 








John 0. C. R. & F. W. R. R. 


Co. 145 


K. 






John. & Cherry Streets , Matter of 442, 












661 


Kaine, Matter of 




430 


Johns Island Church 




582 


Kanuher v. Blinn 




629 


Johnson v. Atlantic, &c. R. R. Co. 655 


Kane v. Baltimore 




665 


V. Bentley 




468 


V. Cook 




23 


V. Bond 




354 


V. People 




408 


V. Campbell 




279, 476 


Kansas Pacific R. R. Co. v. Mower 


722 


V. Common Council 


270 


Kaontz V. Nabb 




64 


V. Drummond 




606 


Karney v. Paisley 




467 


V. Hipgins 179, 226 


, 349, 358 


Kayser ». Bremen 




312 


V. Hudson R. R. Co 


68 


Keal V. Keokuk 




252 


V. Joliet & Chicago 


R.R. 


Kean v. McLaughlin 




663 


Co. 




86, 225 


V. Stetson 




737 


V. Jones 




450 


Kearney, Ex parte 




430 


V. Philadelphia 




237, 246 


Keasy v. Louisville " 




§62 


V. Railroad Co. 




156 


Keddie v. Moore 




513 


V. Rich 




148 


Keen v. State 


326 


332 


V. Riley 




21, 22 


Keene v. Clark 




15 


V. Stack 




144 


Keith V. Ware 




449 


V. Stark Co. 




272 


Kellar v. State 




179 


V. State 




406 


Kelley v. Corson 


647 


648 


Johnson Co. v. January 




269 


V. Marshall 269 


281 


616 


Johnston v. Commonwealth 


204 


V. Partington 




530 


V. Louisville 




237 


V. Pike 




69 


Johnstone ». Sutton 




553 


1). Sherlock 




560 


Joliet, &c. R. R. Co. V. 


Jones 723 


V. Tinling 


550 


651 


Jolly V. Terre Haute Drawbridge 


Kellogg, Bx parte 


431 


511 


Co. 




34, 740 


V. Oshkosh 




163 


Jones V. Black 




200 


V. State Treasurer 




221 


V. Boston 


630 


631, 637 ■ 


V. Union Co. 




738 


«. Carter 




486 


Kelly V. McCarthy 




448 


t;. Cavins 




192 


Kelsey v. King 




692 


V. Columbus 




178 


Kemp, In re 




394 


' V. Fletcher 




373 


Kemper v. McClelland 


647, 


648 


V. Galena, &c. R. 


R. Co. 722 


Kendall ». Canton 




336 


V. Harris 




596 


V. Dodge 




449 


V. Hutchinson 


158, 


164, 189 


V. Kingston 51 


220, 


457 


V. Jones 


136, 


226, 464 


, ». United States 




27 


V. Keep's Estate 




603 


Kendellon v. Maltby 




542 


». New Haven 


304, 


309, 311 


Kennard v. Louisiana 




14 


V. People 




727 


Kennedy, In re 




352 


V. Perry 


112. 


127, 438 


V. Phelps 




730 


V. Richmond 


231, 


257, 747 


Kennett'g Petition 


676, 


678 


V. Robbins 




217, 613 


Kentucky v. Dennison 


2] 


,22 


V. State 




332, 769 


Kentworthy v. Ironton 




311 


V. Thompson 




182 


Kenyon v. Stewart 




35 


V. Weathersbee 




59 


Kerby v. Penn. R. R. Co. 




723 


Jordan v. Woodward 




668 


Kermott v. Ayer 




32 


Jordan's Case 




385 


Kern ». Kitchen 


126, 


128 


Journeay v. Gibson 




470 


Kerr, Matter of 




343 


Joy V. Thompson 




369 


V. Kerr 




603 


Joyner v. School District 




647 


V. Union Bank 




68 


Judkins v. Hill 




782 


Kershaw v. Bailey 




642 



zlii 



TABLE OF CASES CITED. 



Eernrhacker ». Cleveland, &c. R. R. 

Co. 681 

Ketcham ». Buffalo • 235 

Kettering v. Jacksonville 3l2, 726 
Keyser v. Stansifer 581, 582 

Kibbe v. Kibbe 22 

Kibbey v. Jones 352 

Kibby v. Chetwood's Adm'rs 125 

Kidder v. Parkhurst 552 

Kilbourn, Matter of 164 

Kilburn v. Woodworth 22, 506 

Kilham v. Ward 777 

Kimball v. Alcorn 813, 779 

V. Kimball 503 

V. Rosendale ^ 649 

V. Rosenthal " 477 

Kimble v. Whitewater Valley Canal 

705 
Kimbro w. Bank of Fulton 456 

Kincaid's Appeal 154, 251, 748 

Kine v. Sewell 552 

King V. Dedham Bank 111, 840 

V. Hopkins 512 

V. Hunder 337 

V. Hunter 79 

V. Root 546, 565, 567, 677 

V. Wilson 17 

King, The, v. Abingdon 670 

u. Campbell 632 

V. Carlile 560, 590 

». Chancellor of Cam- 
bridge 605 
V. Clews 387 
V. Cooper 388 
V. Cox 62 
V. Creevey 660, 570 
V. De Manneville 432 
V. Dunn 387 
V. Ellis 384 
V. Enoch 386 
V. Fisher 660 
V. Fletcher 408 
J). Foxeroft 781, 782 
V. Gardner 309 
V. Hagan 392 
ti. Hawkins 782 
V. Howes 388 
V. Inhab. of Hardwicke 

299 
o. Inhab. of Hipswell. 90 
V. Inhab. of St. Gregory 90 
V. Inhab. of Woburn 299 
V. Kingston 387 

V. Lee 560 

1). Lewis 885 

t>. Locksdale ^ 90 

V. Mayor of Stratford 

on Avon 239 

lA Monday ' 782 



King, The, ». Moore 
V. Parrjr 
V. Partridge 
V. Ravel 
V. Richards 
V. River 
V. Simpson 
V. Smith 
i>. St. Olaves 
V. Sutton 
V. Taylor 
V. Thomas 
V. Tubbs 
V. Waddington 
V. Watkley 
V. Webb 
V. Withers 
V. Woolaston 
V. Wright 
V. Younger 

Kingsbury's Case 

Kingsley v. Cousins 

Kinkead v. MeKee 

Kinmundy v. Mahan 

Kinney v. Beverley 

Kinsworthy v. Mitchell 

Kip V. Patterson 

Kirby v. Shaw 

Kirk V. Know^ll 
V. Rhodes 
V. State 

Kisler ». Cameron 

Kloinechmidt v. Dunphy 

Klinck V. Colby 

Kling V. Fries 

Klumph V. Dunn 

Knapp V. Grant 

Kneass's Appeal 

Kneeland v. Milwaukee 



190 
782 
386 
394 
388 
885 
387 
■ 385 
766 
118 
590 
887 
367 

590, 692 
887 
885 
781 

690,692 

571 

62 

22 

359 

582 

250 

438 

647 

246 

210, 284, 286, 599 

249 



762 
396 
785 
895 
583 
728 
528 

286, 475 
128 
2, 65, 88, 
641 
462 
580 
530 
237 
342 
139 
462 

390, 494 
780 



Knight V. Begole 

i>. Foster 

II. Gibbs 
Kniper v. Louisville 
Knoop V. Piqua Bank 
Knote V. United States 
Knoulton v. Redenbaugh 
Knowles ». People 
V. Yeates 

Knowlton v. Supervisors of Rock 625 
Knox V. Chaloner 735 

V. Cleveland 454 

KnQx Co. V. Aspinwall 270 

Kobs V. Minneapolis 311 

Koestenbader v. Pierce 712 

Kohl V. United States 664 

Kohlheimer v. State 405 

Koontz V. Franklin Co. 338 

Kraft V. Wickey 607 



TABLE OF CASES CITED. 



xliii 



Kramer e. Cleveland, &c. K. R. 

Co. 667, 661 

Krebs v. Oliver 529 

Kroop V. Forman 658 

Kackler v. People 331 

Kulm V. Board of Education 232 

Kune V. Weller 759 

Kunkle v. Franklin 474 

Kurtz V. People 176, 179, 734 

Kyle V. Jenkins 323 

V. Malin 287 



Lacey v. Davis 458 

Lackland v. North Mo. R. R. Co. 231, 

237, 681, 682 

Lacy V. Davis 648 

Lackawana Iron Co. v. Little Wolf 94 

Ladd V. Adams 352 

Laefon v. Dufoe 179 

La Fayette ». Bush 252, 677 

V. Cox 235, 236, 267 

V. Fowler 252, 631, 632 

i). Jennera 220 

V. Orphan Asylum 640 

La Favette Plank Road Co. v. New 

Albany, &c. R. R. Co. 678 

La Fayette, &c. R. R. Co. v. Gei- 

ger 84, 144 

La Fayette, &c. R. R. Co. v. 

Winslow 695 

Lake Erie, &c. R. R. Co. v. Heath 25, 

612 
Lakeman v. Burnham 651 

Lake View v. Rose Hill Cemetery 233, 

748 

Lamb v. Lane 100, 704 

V. Lynd 161 

Lambertson v. Hogan 116 

Lammert v. Lidwell 144, 151 

Lancaster v. Barr 492 

Lancey v. Clifford 735 

Lander v. Seaver 422 

Landon v. Litchfield 342 

Lane v. Dorman 126, 221, 438 

V. Nelson 131, 461, 463 

V. Vick 17 

Langdon v. Applegate 64, 185 

Lange, Ex parte ' 408 

Langford v. Ramsey Co. 701 

Langhorne v. Robinson 623 

Langworthy «. 'Dubuque 232,624 

Lanier v. Gallatas 116, 772, 780 

Lanning v. Carpenter 312, 776 

Lansing v. Lansing . 774 

V. Smith 679 

V. Stone 31 

V. Van Gorder 238 



Laiizetti, Succession of 178 

Lapeyre v. United States 139 

La Plaisance Bay Harbor Co. v, 

Monroe 34 

Laramie Co. v. Albany Co. 232 

Larkin v. Noonan 642 

V. Saginaw Co. 264 

Larrison v. Peoria, &c. R. R. Co. 165 

Lasure v. State 332 

Lathrop v. Mills 215 

Latless ». Holmes 190 

Lauck's Appeal 359 

Laude v. Chicago, &(> R. R. Co. 76 

Lauer v. State 179 

Laval V. Myers 774 

Law, Ex parte 320, 822 

Lawler v. Earle 634 

Lawrence, In re 446 

V. Great Nor. R. R. Co. 705 

Lawrenceburg v. Wuest 243 

Lawson v. Hicks 666 

V. Jeffries 42, 116, 492 

Lawyer v. Clifferly 581 

Layton v. New Orleana 234, 283, 289 

Lea V. Lea 69 

V. White 666 

Leach v. Money 377 

League v. Journeay . 748 

Leary v. Mankato 311 

Leavenworth i>. Norton 237 

V. Rankin 271 

Leavenworth Co. v. Miller 145, 272 

Leavitt V. Watson 649 

Lebanon v. Olcott 672 

Le Barron v. Le Barron 35 

Lebois v. Bramel 472 

Leclaire ». Davenport 749 

Lee 17. Lee 69 

V. Murphy 140 

V. Sandy HiU 304,, 311 

V. State ♦ 47, 404 

V. Tillotson 220 

Leefe, Matter of 516 

Lefever v. Detroit 640 

Leffingwell v. Warren 18, 463, 454, 

465 
Legg V. Annapolis 159, 186 

Leggett V. Hunter 108, 125 

Lehigh Iron Co. v. Lower Macun- 

gie 100 

Lehman v. McBride 185, 765 

Leith V. Leith 603 

Leland v. Wilkinson 112 

Lemmon v. Chicago, &c. R. R. Co. 722 
V. People 21 

Lemons v. People 98 

Lennon v. New York 449, 463 

Lenz V. Charlton 441, 469 

Leonard v. Wiseman 70 



xliv 



TABLE OF CASES CITED. 



Leslie v. State 


406 


Lester «. State 


405 


V. Thurmond 


556 


Levins v. Sleator 


133, 136 


Levy 0. State 


242, 243 


Lewis V. Chapman 


633, 634 


V. Clement 


560 


V. Commissioners 


786 


V. Few 


645 


V. Foster 


469 


V. Garrett's Adm'r 


605 


V. Hawley 


529 


V. Levy ' ^ 


669, 561 


V. Lewis 


359 


V. McElvain 


448, 467 


V. Thornton 


62 


». Walter 


560 



II. Webb 116, 132, 205, 454, 491 

Lewis's Appeal 108, 205 

Lexington v. Butler 268 

V. Long 709, ,710, 711 

V. McQuillan's Heirs 622, 

633 

Libby V. Burnham 648 

License Cases 2, 606, 715, 716, 726, 

728, 729, 748 

License Tax Cases 206, 716, 729 

Life Association v. Assessors 91 

Ligat t)'. Commonwealth 703 

Limestone Go. v. Rather 94 

Lincoln v. Hapgood 755, 777 

V. Smith 26, 395, 513, 726, 

727, 728 

V. Tower 23 

LindenmuUer v. People 734 

Lindholm v. St. Paul 311 

Lindsay v. Commissioners 195 

Lindsley ». Coats 31 

V. Smith 529 

Linford v. Fitchroy 381 

Lining v. Bentham * 394 

Linn v. Minor 65 

Linney v. Malton 629 

Lin Sing v. Washburn 490, 606, 627, 

733 
Linton V. Stanton 16 

Litchfield V. McComber 351 

B. Vernon 608 

Little V. Fitts 499 

V. Smith 64 

Littlefield o. Brooks 755 

Little Miami R. R. v. CoUett 710 

Little Rock v. Willis 254 

Littleton v'. Richardson 606 

Live Stock, &c. Association e. Cres- 
cent City, &c. Co. 11, 13, 21, 846, 
347, 361, 716, 730 
Livingston v. New York 621, 631, 636 
V. Van Ingen 28 



Livingston's Lessee ». Moore 26 

Livingston Co. v. Weisler 284, 615 
Lloyd V. New York 305, 309, 310 

Loan Association v. Topeka 105, 266, 

610, 616 

Lobrano v. Nelligan 125 

Locke V. Dane 326, 463 

Locke's Appeal 151 

Lockhart v. Horn 454 

II. Troy 179 

Lockwood V. St. Louis 640 

Loeb V. Mathis 65 

Loeffner v. State 379 

Logan V. Payne 237 

Logue ii. Commonwealth 377 

Lonas v. State 490 

Londonderry v. Andover 239 

Long V. Fuller 665, 701 

Long's Case 386 

Long Island R. R. Co., Matter of 783 

Longworth v. Worthington 486 

Loomis B. Jackson 41, 779 

V. Wadhams 612 

Lord V. Chadbourne 448 

ti. Litchfield 342, 480 

«. Thomas 349 

Lorillard v. Monroe 303 

Loring v. Marsh 17 

Lorman ti. Benson 31, 735 

!i. Clarke 27 

Lothrop V. Steadman 62, 118 , 128, 142 

Lott II. Morgan 606 

Loughbridge v. Harris 668, 669, 671 

Louisiana State Lottery v. Richoux 1 65 

Louisville v. Commonwealth 309 

II. Rolling Mill Co. 252 

V. University 293 

Louisville, &c. Co. e. Ballard 179 

Louisville, &c. R. R. Co. v. Burke 725 

V. Davidson 144 

V. State 643 

Louisville & Nashville R. R. Co. v. 

County Court 776 

Louisville & Nashville R. R. Co. 

V. Thompson 711 

Louisville City R. R. Co. v. Louis- 
ville 251, 253 
Love V. Moynahan 420 
V. Sbartzer 486 
Lovingston o. Wider 287, 475, 614 
Low V. Blanchard 65 
V. Dunham 93 
V. Galena & Chicago U. R. R. 

Co. 676 

V. Towns 141 

Lowe II. Commonwealth 78, 337 

Lowell ti. Boston 212, 266, 610 

II. Hadley 94, 735 

V. Oliver 277, 278 



TABLE OF CASES CITED. 



xlv 



Lowenburg ». People 
Loweree v. Newark 


408 


701, 702 


Lowndes Co. v. Hunter 


215 


Lowry V. Francis 


335 


Lucas V. Case 


682 


V. Sawver 


447 


0. Tueter 


464 


Ludlow V. Jackson 


449 


Ludlow's Heirs v. Johnson 


68 


Ludwig V. Stewart 


456 



Lumsden v. Cross 458, 611, 622, 632 

Lund ». New Bedford 658 

Lunt's Case 205 

Lusher v. Scites 225 

Luther v. Borden 38, 39, 751 

Lycoming v. Union 471 

Lyle u. Richards 31 

Lyman v. Boston & Worcester 

R. R. Co. 723 

V. Mower 449 

Lynch V. Brudie 486 

V. Hoffman ' 323 

V. State 401, 415 

Lynde v. County 267 

Lyon V. Jerome 250, 655, 673, 700 

V. Lyon 504 

V. Norris 226, 460 

Lyon's Case 636 

M. 

Machette v. Wanless 413 

Machir o. Moore 774 

Mackaboy v. Commonwealth 611 

Mack ay v. Ford 554 

Macon v. Macon & Western R. R. 

Co. 237 

Macon & Western R. R. Co. v. 

Davis 206, 220 

Macready w. Wolcott ,420 

Macy V. Indianapolis 677 

Madison Co. v. People 643 

Madison & Ind. R. R. Co. v. Nor- 
wich Savings Society 269, 270 
Madison & Ind. R. R. Co. v. White- 

ntfck 204, 722 

Madox V. Graham 68 

Magee u. Commonwealth 632 

V. Supervisors 785 

Magruder, Ex parte 322 

V. Governor 141 

Magnire v. Maguire 348, 603, 604, 

507, 508 
Mahala v. State 405 

Maher v. People 377, 391, 403 

Mahon V. New York Central R. R. 

Co. 684 

Mahoney v. Bank of the State 241 
Maiden v. Ingersoll 14 



Maize v. State 142, 151, 206, 216 

Mallory v. Hiles 190 

Malone v. Clark 612 

V. Stewart 529 

Maloy V. Marietta 53, 622, 630, 646 
Maitus v. Shields 613 

Manchester, Matter of 22 

Manley v. Manley 503, 507 

V. Raleigh 231 

Manly v. State 71, 72, 81 

Mansfield v. Mclntvre 603, 507 

Mansfield, &c. R. ft. Co. v. Clark 673 
Mapes V. Weeks 667 

Marbury v. Madison 57 

March v. Commonwealth 242 

V. Portsmouth, &c. R. R. 

Co. 666 

Marchant v. Langworthy 94 

Marcy V. Oswego 269 

Marietta v. Fearing 247, 337 

Mariner v. Dyer 394 

Marion v. Epler 622, 630 

Mark «. State _ 192, 226 

Marks v. Morris 31 

V. Pardue University. 166, 284, 

616 

Marlatt v. Silk 17 

Marlow V. Adams 486 

Marsh v. Chestnut 91 

t>. Ellsworth 651 

V. Fulton Co. 268, 270 

f . New York & Erie R. R. 

Co. 723 

V. Putnam 360 

Marshall v. Baltimore & Ohio R. R. 

Co. 168 

V. Donovon 199, 366 

V. Grimes 224, 740 

V. Gunter 556 

V. Harwood 164 

V. Kerns 776, 784, 786, 789 
V. SiUiman 287, 475 

I). Vicksburg 606 

Marshall Co. Court v. Calloway 

Co. Court ' 233 

Marten v. Van Schaick 667 

Martin, Exyarte 606 

0. Bigelow 31 

V. Broach 178 

V. Brooklyn 305 

V. Dix 204, 232 

0. Hunter's Lessee 11, 16, 24, 

82, 110 

I). Mott 62 

V. Waddell 17 

V. Wade 169 

Martin's Appeal 128 

Mary Smith's Case 385 

Mason, Matter of 431 



tlvi 



TABLE OP CASES CITED., 



Mason V. Haile 352, 354 
V. Kennebeck, &c. R. B. 

Co. 705, 712 

V. Mason 567 

V. Messenger 606 

V. Wait 108, 127 

klasterton v. Mt. Vernon 811 

Mather v. Chapman 464, 476 

V. Hodd 611 

Mathews v. Beach 660 

V. Zane 190 

Matter of Election Law . 774 

Mauch Chunk v. McGee 176 

Maul V. State 326 

Mauran v. Smith 141 

Maurer». People 393 

Maxey v. Loyal 362 

V. Williamson Co. 269 

V. Wise 469 

ilaximilian v. New iTork 305 

ilaxwell V. Newbold 16 

ilay V. Holdridge 474 

tlayberry v. Kelly 198 

tlayer, Ex parte 480 

0. Schleichter 580 

ilaynes v. Moore 361 

ilayo V. Freeland 784 

V. Wilson 31 

ilayor, &o., Matter of 621, 640 

V. Horn 116, 116 

V. Medbury 735 

ilayor of Annapolis v. State 176 

ilayor of Hull v. Horner 239, 240 

layor of London's Case 426 

ilayor of Lyme v. Turner 804, 809 

layor of Wetumpka v. Winter 144 

dayrant u. Richardson 561 

lays V. Cincinnati 231, 242, 246, 644 

IcAdoo V. Benbow 70 

IcAffee's Heirs v. Kennedy 668 

IcAHister «. Hoffman 774 

IcArthur «. Goddin 448 

IcAuley b. Boston 311 

IcAurich v. Mississippi, &c. R. R. 

Co. 166, 179 

IcBrayer v. Hill 530 

IcBride ». Chicago 622 

IcCafferty v. Guyer 78, 322 

IcCann v. Sierra Co. 701 
IcCardle, Ex parte 116, 226, 477, 481 

luCarthy v. Hoffman 472 

IcCaslin v. State 179 

loCauley v. Brooks 67, 356 

V. Hargroves 23, 59 

IcCIaughry v. Wetraore 568 

IcCloud V. Selby 802 
IcClure V. Oxford 190, 268, 270 

IcClusky V. Cromwell 68 

IcCoUum, Ex parte 220 



MoComb V. Akron 262, 678 

V. Bell 627 

V. Gilkey ' 125, 126 

McConkle ». Binns 677 

McCool V. Smith 186 

McCormick v. Rusch 368, 448 

McCoy V. Grandy 486 

V. Huffman 420 

V. Michew 463 

McCracken v. Hayward 349, 360, 368, 

365 

MoCready e. Sexton 459, 649 

V. Virginia 20 

McCuen v. Ludlum 528 

MoCuUoch V. Maryland 14, 24, 77, 599, 

600, 601 

B, State 97, 164, 166, 170, 

215 226 

McDaniell b. Correll 115, 13o! 479 

McDermott's Appeal 503 

McDonald b. Redwing 666, 747 

0. Schell , 613 

V. State 408 

McDonough v. Millaudon 16 

McElvain I). Mudd 603 

McFadden v. Commonwealth 404 

McFarland v. Butler 364, 450 

McGatrick v. Wason 695 

McGear b. Woodruff 394 

McGee v. Mathis 342, 622 

McGehee b. Mathis 637, 741 

McGiffert 0. McGiffert 602, 603, . 504 

McGinnis v. Watson 682^ 590 

McGinnity v. New York 306 

McGlinchy ^). Barrows 373 

McGowan v. State 401 

McGuffie V. State 397, 400 

McHaney v. Trustees of Schools 462 

McKoe V. McKee , 230, 734 

V. People 406 

V. Wilcox 76 

McKeen v. Delanoy's Lessee 17 

McKenzie v. State 879 

McKim V. Odorn 282 

o. Weller 94 

McKinney b. Carroll 16 

V. O'Connor 772, 779 

V. Springer 454 

McKune v. Weller 769 

McLaughlin, Ex parte 406 

V. Correy 311 

McLaurine v. Monroe . 22 

McLean v. Hugarian 69 

McLeod's Case 428 

McManus v. Carmichael 736 

V. O'Sullivan 16 

McMasters b. Commonwealth 681 

McMerty v. Morrison 455 

McMillan v. Birch 555 



TABLE OP CASES CITED. 



xlvii 



McMillan ». Boyles 474 

V. Lee County 235 

0. McNiell 24, 360 

McMinn v. Whelan 649 

McMullan v. Hodge ^ 42, 88 

McPherson ». Foster 236, 268, 270 
V. Leonard 98 

V. State 401 

McReady v. Sexton 459, 649 

McReynolds v. Smallhonse 738 

McSpeddon v. New York 259 

McVeigh V. United States 505, 506 
Meacham v. Dow 774 

V. Fitchburg R. R. Co. 710 
Mead v. Derby 311 

V. McGraw 65 

o. Walker 612 

Meade v. Beale 17 

I). Deputy Marshall 605 

Meagher v. Storey Co. 227 

Mears v. Commissioners of Wil- 
mington 304 
Mechanics', &c. B&nk Appeal 351 
Mechanics' & Farmers' Bank v. 

Smith 247 

Mechanics' & Traders' Bank v. 

Debolt 154, 342 

Mechanics' & Traders' Bank v. 

Thomas 342' 

Meddock v. Williams 470 

Medford v. Learned 460, 461 

Meeker v. Van Rensselaer 729, 747 
Meighen v. Strong 472 

Meister v. People 418 

Melizet's Appeal 136 

Mellen v. Western R. R. Corp. 678 
Memphis v. Winfield 244 

Memphis, &c. R. R. Co. v. Payne 703 
Menard Co v. Kincaid 449 

Mendota v. Thompson 312 

Menges v. Wertman 463, 465, 468 

Mercer v. McWilliams 700 

Meredith u. Ladd 168 

Merrick ». Amherst 261, 284, 615 

Merrifield v. Worcester 254, 311 

Merrill v. Plainfield 257, 259 

. V. Sherburne 112, 116, 445 
Merritt v. Farris 642 

Merwin v. Ballard 462 

Meshmeier v. State 142, 152, 216, 224, 

727, 728 

Messenger v. Mason 16 

Methodist Church v. Ellis 640 

V. Wood 682 

Metropolitan Board v. Barrie 345, 480, 

726,727 

V. Heister 730 

Metzger, Matter of 430, 431 

Mewherter v. Price 179, 182 



Meyer v. Muscatine 267 

Miami Coal Co. ». Wigton ,660 

Michigan State Bank v. Hastings 340 

Middlebrook v. State 394 

Middlebrooks v. Ins. Co. 22 

Middleton v. Lowe 141 

Milan, &c. P. R. Co. v. Husted 342 

Milburn, Ex parte 430 

V. Cedar Rapids, &c. R. R. 

Co. 690 

Miles II. Caldwell 17 

V. State 331 

Milhau V. Sharp 237, 247, 253, 264, 

682 
Milledgeville v. Cooley 311 

Miller v. Craig 747, 748 

V. English 682 

V. Gable 581 

V. Graham 476, 479 

V. Grandy 281, 612 

V. Miller 446 

V. New York & Erie R. R. 

Co. 719, 721 

V. Nichols 15 

V. Parish 529 

V. People 385 

V. Rucker 777 

V. State (3 Ohio) 97, 165, 170, 

183, 198 

e. State (358 Ala.) 164 

V. State (8 Ind.) 405 

V. Troost 668 

Miller's Case 573 

Miller's Executor v. Miller 506 

MillhoUand v. Bryant 762 

Mimg&n, Ex parte 379,394 

Mills, Matter of 417 

V. Brooklyn 264, 304, 309 

V. Charlton 179, 180, 231, 286, 

75, 610 

V. Duryea 23 

V. Gleason 235, 236, 648 

V. Jefferson 192 

V. St. Clair Co. 497 

'v. Williams 232, 337, 340, 341 

Milner v. Pensacola 232 

Milwaukee v. Gross 730 

Milwaukee Gas L. Co. v. Steamer 

Gamecock 34 

Milwaukee Town v. Milwaukee City 233 

Miners' Bank v. Iowa 33 

«. United States 128,340 

Minor V. Board of Education 586 

V. Happerstett 13, 36, 37, 83, 

498, 753 

Minot V. West Roxbury 168 

Mississippi Society v. Musgrowe 340 

Mitchells.' Burlington 267 

V. Deeds 463, 467 



xlviii 



TABLE OP CASES CITED. 



Mitchell V. Harmony, 661 

V. Illinois, &c. Coal Co. 101, 

658 

V. Rome 353 

». Williams 748 

Mitchell's Case 413 

Mi<hoff «. Carrollton 665 

Moberly v. Preston 629 

Mobile V. Allaire 242, 243 

V. Dargan 28, 614, 622 

V. Rouse 243 

V. Yuille 246, 749 

Mobile & Ohio R. R. Co. v. State 186, 

199, 215, 219, 220 

Moers V. Reading 84, 145 

Mohawk Bridge Co. v. Utica & 

Schenectady R. R. Co. 497 

Mohawk «& Hudson R. R. Co., 

Matter of 94 

Mok V. Detroit, &c. Association 184 
Monell V. Dickey 607 

Money ». Leach 371 

Montbrd ». Barney 613 

Monongahela Navigation Co. v. 

Coons 76, 679 

Monopolies, Case of 493 

Monroe ». Collins 78, 217, 494, 759,777 

Montee v. Commonwealth 401 

Montgomery v. Deeley 628 

V. Kasson 835, 347 

». Meredith 463 

V. State 401, 676 

Montgomery Co. v. Elston 602 

Monlpelier v. East Montpelier 332, 

233, 293, 339 

Montpelier Academy V. George 232, 233 

Moodalay v. East Indian Co. 308 

Moody V. State 159, 164, 186 

Moon V. Durdeq 76 

Moor ti. Luce 454 

Moore, Matter of 416 

». Cass 480 

V. Detroit Locomotive 

Works 500 

V. Houston 205 

». Maxwell 126 

V. Meagher 630 

V. Minneapolis 311 

V. Moore 603 

V. New York 447 

V. People 26, 244 

V. Quirk 603 

V. Railway Co. 668 

V. Sanbourne 785, 736 

V. Smaw 651 

V. State 381 

V. Stephenson 678 

Moran v. Commissioners of Miami 
Co. 269 



Moreau v. Detchamendy 19 

Morehead v. State 386 

Morey v. Brown ' 748 

». Newfane 303, 305 

Morford ». Unger 143, 176, 178, 189, 

479, 608, 615, 623 

Morgan v. Buffington 139 

V. Cree 154 

W.King 31,697,735,736,737 

V. Livingston 528 

V. Plumb 59 

». Quackenbush 784, 788, 789 

V. Smith 154 

V. State 393 

Morril v. Haines 780 

Morrill v. State 617, 749 

Morris v. Barkley 530 

V. People 204, 221 

». State 406 

V. Vanlaning 779 

Morris Canal & Banking Co. v. 

Fisher 270 

Morris & Essex R. R. Co. v. New- 
ark 684 
Morrison v. M'Donald 394 
V. Springer 305 
Morrissey ». People 155 
Morrow v. Wood 422 
Morse v. Boston 311 
V. Goold 63, 351, 352 
Morton, Matter of 374 
». Sharkey 464, 456 
V. The Controller 177, 179 
Mortun V. Valentine 362 
Mose V. State 393 
Moseley v. State 405 
Moser v. White 116 
Moses V. Pittsburg, Fort Wayne, & 

C. R. R. Co. 690 

Moses Taylor, The, v. Hammons 24 

Mosier v. Hilton 180 

Mott V. Comstock 639 

». Pennsylvania R. R. Co. 154, 

342 
Motz V. Detroit 488 

Moulton V. Raymond 611 

Mount ». Commonwealth 405 

Mount Carmel v. Wabash Co.. , 233 
Mount Plea:sant v. Breeze 237 

Mount Washington Road Co.'s 

Petition 672, 703, 710, 711 

' Mounts V. State 404 

Mower v. Leicester , 803 

». Watson 653, 656 

Mundt V. Sheboygan, &c. R. R. Co. 172 

Mundy v. Monroe 218, 356 

Munger v. Tonawanda R. R. Co. 698 

Municipality ». Blanc 734 

V. Cutting 



TABLE OF CASES CITED. 



xlix 



Municipality v. Wheeler 325 

V. White 622,63-1 

Munn V. Tllinois 25, 204, 444, 715, 743 
V. People 744, 746 

V. Pittsburg 311 

Munson v. Hungerford 735 

Murford v. Barnes 513 

Murphey t>. Menard 178 

Murphy, Ex parte 782 

In re 68, 326 

V. Chicago 262, 677 

V. Commonwealth 395 

B. People 480 

u. State 416 

Murray v. Commissioners of Berk- 
shire 683, 688 
V. Hoboken Land Co. 437, 506 
V. McCarty 21 
V. Menilee 676, 680 
ti. Sharp 680 
Murray's Lessee v. Hoboken Land 

Co. 437, 605 

Murtaugh v. St. Louis 264, 304 

Musgrove v. Vicksburg 449 

Musselman v. Logansport 463 

Mutual Assurance Co. v. Watts 17 

Myers v. English 100, 206 

V. Manhattan Bank 36 

V. People 216 

Mygatt V. Washburn 623 

Myrick v. Hasey 64 

V. La Crosse 648 



N. 

Nashville v. Ray 236, 237 
National Bank v. Commonwealth 601 

Nations v. Johnson 504, 606 

Naylor v. Field 185 
N. C. Coal Co. V. G. E. Coal & 

Iron Co. 77 

Neaderhouser v. State 740 

Neal V. Green 17 

Neass v. Mercer 353 

Nebraska v. Campbell 304 

Nefzeger v. Davenport 768 

Neifing v. Pontiac 180 

Npill V. Keese 499 

Nels V. State 401 

Nelson V. Allen _ 62, 63, 486 

V. Borchenius 629 

V. Goree 64 

V. Milford 256, 257 

V. Rountree 479 

». State 401 

Nesbitt V. Trumbb 662 

Nesmith v. Sheldon 18 

Nevins v. Peoria 262 



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

O'Daily 679, 690 

New Albany & Salem R. R. Co. 

V. Maiden 722 

New Albany & Salem R. R. Co. . 

V. McNamara 722 

New Albany & Salem R. R. Co. 

V. Tilton 714, 722, 725 

Newbeiry v. Trowbridge 68, 59 

New Boston, Petition of 514 

V. Dunbarton 240 

Newby v. Platte County 709, 710 

Newby's Adm'rs v. Blakey ' 454 

Newcastle, &c. R. R. Co. v. Peru 

& Indiana R. R. Co. 656 

Newcomb v. Peck 23 

Newcorae v. Smith 668 

Newcum v. Kirtley 782, 786 

Newell V. Newton 507 

V. People 67, 68, 70 

V. Smith 668 

V. Wheeler 649 

New Jersey v. Wilson 154, 342 

Newland v. Marsh 111, 205, 221, 224 

New London v. Brainerd 235, 258 

Newman, Mx parte 206, 226 

New Orleans v. De Armas 15 

V. Poutz 326 

V. Southern Bank 185 

V. Stafford 749 

V. St. Rowe's 94 

V. Turpin 230 

New Orleans, &c. R. R. Co. v. 

New Orleans 294, 681 

Newsom v. Cocke 221 

V. Greenwood 449 

New York, Matter of 621, 640 

■». Furze 304 

V. Hyatt 243 

V. Kerr 690 

V. Lord 747 

V. Miln 606, 733 

V. Nichols 242, 214, 247 

V. Ryan 231 

V. Second Ave. R. R. 

Co. 246, 251 

New York Central, &o. R. R. Co. 

V. Gaslight Co. 344, 673 

New York, &c. R. R. Co. v. Van 

Horn 221, 287, 472 

N. E. Screw Co. v. Bliven 17 

N. Y. & Harlem R. R. Co. v. Kip 661, 

662, 
N. Y. & Harlem R. R. Co. v. New 

York 254, 682 

Niccolls V. Rug^ 682 

Nichol V. Nashville 144 

Nichols, Matter of 362 

V. Bertram 340 



d 



TABLE OP CASES CITED. 



Nichols V. Bridgeport 621, 631, 668, 

709, 711 

V. Guy ,529 

V. Mudgett 774 

V. Somerset, &c. R. R. Co. 700 

Nicholson v. N. Y. & N. H. R. R. 

Co. 687, 709 

Nickerson v. Howard 421 

Nieolay v. St. Clair 269 

Nicolls V. IngersoU 422 

Nightingale's Case 749 

Nightingale v. Bridges 443 

Nims V. Troy 311 

Noel V. Ewing 136, 447 

Nolan V. State 404 

Nolin V. Franklin 749 

Nomaque v. People 393 

Noonan v. Orton 633 

V. State 31 

Norman v. Curry 179 

V. Heist 439, 446, 472 

Norris v. Abingdon Academy 205, 

340 

V. Beyea _ 448, 461 

V. Boston ' ■ 215 

V. Clymer 84, 123, 126 

V. Crocker 477 

V. Doniphan 449, 461 

V. Harris 31 

V. Newton 429 

V. Vt. Central R. R. Co. 656, 

678 

Norristown, &c. Co. v. Burket 513 

Northern Indiana R. R. Co. v. 

Connelly _ 620, 622, 631, 632, 645 
Northern Liberties v. St. John's 

Church 622 

Northern R. R. Co. v. Concord 

R. R. 63 

North Hempstead ». Hempstead 241, 

260 
North Missouri R. R. Co. v. Gott 673 
North Missouri R. R. Co. v. Lack- 
land 673 
North Missouri R. R. Co. v. Ma- 
^guire 26, 343 
North-western Fertilizing Co. v. 

Hyde Park 77, 719 

North Yarmouth v. Skillings 293 

Norton V. Pettibone 464 

Norwich V. County Commissioners 

206, 220 
Norwich Gas Co. v. Norwich City 

Gas Co. 493 

Norwood V. Cobb 23 

Nougues V. Douglass 99 

Noyes V. Butler 22 

Nugent V. State 405 

Nunn V. State 434 



O. 

Oakland v. Carpentier 260 

Oakley v. Aspinwall 87, 616 

Oatman v. Bond 356 

O'Bannon v. Louisville, &c. R. R. 

Co. 456, 723 

O'Brian v. Commonwealth 404 

O'Conner v. Warner 116 

O'Connor v. Pittsburg 252, 678, 

712 

O'Donaghue v. McGovern 542 

O'Donnell v. Bailey 342 

O'Farrell v. Colby 784 

Officer V. Young 462, 492 

Ogden V. Blackledge 112, 115 

V. Riley 528 

V. Saunders 75, 83, 221, 325, 

349, 350, 361, 363, 360, 457 

V. Strong 68, 71 

O'Grady v. Barnhisel 647 

O'Hara v. Carpenter 278 

Ohio, &c. R. R. Co. V. Ridge 264 

Ohio & Lexington R. R. Co. v. • 

Applegate 692 

Ohio & M. R. R. Co. v. Lackey 129, 

723 
Ohio & M. R. R. Co. v. McClel- 
land 346, 714, 722, 724, 726 
Ohio Life Ins. & Trust Co. v. De- 
bolt 154, 342 
O'Kane v. Treat 627, 643, 647 
O'Kelly V. Athens Manuf. Co. 450 
Olcott V. Supervisors 18 
Oldknow V. Wainwright 781 
O'Leary v. Cook Co. 180 
Oleson V. Green Bay, &c. R. R. 

Co. 153, 185, 221 

Oliver V. McClure 116, 351 

V. Memphis, &c. R. R. Co. 349 

V. Washington Mills 498, 607, 

617 

V. Worcester 308 

Oliver, Lee, & Co.'s Bank, Matter 

of 42, 47, 77 

Olmstead ». Camp 668, 670, 671, 672 

Olmsted v. Miller 530 

Olney v. Harvey 233 

Omaha v. Olmstead 311 

One House v. State 727, 728 

Onslow V. Hone 647 

Opinions of Judges, (6 Shep.) 96 ; (16 

Me.) 136 ; (18 Me.) 99 ; (38 Me.) 

768,781; (46 Me.) 762; (52 Me.) 

277; (68 Me.) 212, 610, 611; (62. 

Me.) 753; (64 Me.) 768, 784; (4 

N. H.) 123; (41 N. H.) 395, 512; 

(44 N. H.) 764; (45 N. H.) 187, 

764 ; (52 N. H.) 165 ; (63 N. H.) 



TABLE OF CASES CITED. 



li 



784; (66N. H.)161; (3R. I.) 116; 
(7 Mass.) 769; (16 Mass.) 7fi9 ; (18 
Pick.) 38; (6 Gush,) 40; (1 Met.) 
766; (99 Mass.) 187; (117 Mass.) 
79, 336, 786; (37 Vt.) 764; (30 
Conn.) 754; (49 Mo.) 61, 64; (55 
Mo.) 144. 
Orange, &c. R. R. Co. v. Alexan- 
dria 641 
Ordioeal v. Barry 169 
O'Reiley v. Kankakee Co. 636 
Oriental Bank v. Freeze 460, 480 
Ormichund v. Barker 696 
Ormond v. Martin 486 
Orphan House v. Lawrence 61 
Orr V. Quimby 700 
V. Skofield 629 
Ortman v. Greenman 198 
Orton V. Noonan 471 
Osage, &c. R. R. Co. v. Morgan 

Co. 271 

Osbom V. Hart 442, 662 

V. Jaines 456 

V. Mobile 606 

V. Nicholson 350, 364 

V. State 396 

V. Staley 164, 205, 222 

V. United States 139 

V. United States Bank 601 

Osborne v. Humphrey 342 

Oswald's Case 394 

Ottawa V. People 179 

Ould V. Richmond 231, 618 

Overstreet v. Brown 499 

Oviatt V. Pond 727, 728 

Owen V. State 434 

Owings V. Norwood's Lessee 14, 15 

Owners of Ground v. Albany 666 

Owners of the James Gray v. 

Owners of the John Frazer 731 



Pacific R. R. Co. V. Chrystal 709, 710 

V. Maguire 42, 342 

Packet Co. v. Sickles 59 

Pacquette v. Pickness 486 

Pailmore v. Lawrence 552, 566 

Page, Ex parte 408 

.. A^len 767 

V. Commonwealth 385 

B. Fazaokerly 749 

V. Fowler 59 

V. Hardin 451 

V. Mathew's Adm'rs 116 

Paine v. Wright 1*^ 

Paine's Case 536 

Palairet's Appeal 349 



Palfrey ». Boston 602 

Palmer u. Commissioners of Cuya- 
hoga Co. 34, 738 
V. Concord 531, 666 
V. Fitts 294, 296 
V. Lawrence 62 
V. Napoleon 648 
V. Smith 679 
V. Stumph 622, 632, 641 
Palmer Co. v. Ferrill. 710 
Palmore v. State 613 
Pangborn «. Westlake 64 
Paris ». Mason 659 
Parish B. Eager 454 
Park Commissioners v. Common 

Council 44 

Parker v. Bidwell 422 

V. Commonwealth 142, 149, 

161 

V. Cutler Mill-dam Co. 740 

V. Kane 17 

V. McQueen 567 . 

V. Metropolitan R. R. Co. 341, 

721, 740' 

0. Phetteplace 17 

V. Redfield 842 

V. Sexton 647 

V. Shannonhouse 449 

V. Sunbury & Erie R. R. 

Co. 496 

Pai;kins's Case 410 

Parkinson v. State 71, 179, 190, 

193 
Parks, Ex parte 430 

V. Boston 709 

V. Goodwin 94 

Parliamentary Cases ^ 164 

Parmele v. Thompson 118 

Parmelee v. Lawrence 16, 450, 466, 

469 

Parmiter v. Coupland 676 

Parsons v. Bangor 765 

V. Casey 351 

V. Goshen 259, 260 

V. Howe 660 

V. Russell 437 

Paschal v. Perez 351 

Paschall v. Whitsett 448 

Passenger Cases 716, 733 

Patten v. People 378 

Patterson v. Barlow 757 

V. Commonwealth 715 

V. Mississippi, &c. Boom 

Co. 666 

V. Philbrook 449, 463, 476 
B. Society 143,144,232, 
641 
B. Wilkinson 6:^0 

B. Winn 31 



lii 



TABLE OF CASES CITED. 



Pattison V. Jones 






533 


V. Yuba 




68, 


144 


Paul V. Detroit 




513, 


675 


V. Virginia 






21 


V. Hazelton 






21 


Pawlet V. Clark 


291, 


335, 


839 



Pawling V. Bird's Executors 22, 603 

V. Wilson 606 

Paxson V. Sweet 735 

Payne v. Treadwell 294, 469 

V. Wright 17 

Paj'son V. Payson 603 

Pearce v. Atwood 31, 514 

I). Olney 23 

V. Patton , 455 

Pearse v. Morrice 90 

Pease v. Chicago 281 

V. Peck 17 

Peavey v. Robbins 777 

Peay v. Duncan 59 

Peck V. Batavia 306 

V. Chicago, &c. R. R. Co. 721 

V. Freeholders of Essex 514 

V. Lockwood 247 

V. Weddell 142, 771 

Pcddicord ». Baltimore, &c. R. R. 

Co. 684 

Pedrick v. Bailey ■ 244 

Peerce v Carskadon 820, 323 

Pekin B. Brereton 311,679 

V. Reynolds 267 

V. Winkel 311 

Pemble v. Clifford 32 

Psftidleton Co. v. Amy 268, 269 

Penhallow v. Doane's Administrator 8 
Peninsula R. R. Co. v. Howard 517 
Penn v. ToUison 42 

Penn's Case 397 

Pennsylvania Hall, In re 289 

Pennsylvania R. R. Co. v. Canal 

Commissioners 496 

Pennsylvania R. R. Co. v. Common- 
wealth 606 
Pennsylvania R. R. Co. v. Lewis 722 
Pennsylvania R. R. Co. v. New 

York, &c. R. R. Co. 680 

Pennsylvania R. R. Co. v. Reily 710, 

711 
Pennsylvania R. R. Co. v. Riblet 204, 

722, 726 

Pennywit v. Foote 23 

Penrice v. Wallace 710 

Penrose v. Erie Canal Co. 351, 364 

People V. Alameda 283 

V. Albany, &c. R. R. Co. 787 

V. Albertson 44, 79, 204, 211, 

313 

V. Allen 52, 86, 94, 178 

V. Auditor-General 347 



People V. Banvard 337 

V. Barrett 404 

V. Batchellor 212, 286, 287, 
294, 308, 614 
». Bates 766, 772, 779 

V. Bircham 139 

V. Bissell 141 

V. Blake 79 

V. Blakely 413 

V. Blodgett 68, 80, 223, 754 
V. Board of Education 490 

V. Board of Registration 785 
V. Board of Supervisors 291 
V. Board, &c. of Nankin 785 
V. Bowen 187 

V. Brady 22, 494 

V. Bradley 101 

V. Brenahm 760 

V. Briggs 176, 181, 215 

V. Brighton 658 

V. Brooklyn 285, 288, 599, 

620, 621, 686, 636, 699 
V. Bull 78, 216, 336, 337 

V. Burns 71 

V. Burt 165 

V. Butler 332 

«. Campbell 97, 170 

V. Canaday 754 

V. Canal Appraisers 696 

V. Canty 287 

V. Cassells 431 

V. Chicago 212, 272, 286, 287, 
294, 475 
V. Cicotte 63, 613, 762, 764, 
766, 768, 770, 780, 782, 787, 
789, 790, 792 
V. Clark 190 

V. Clute 782 

V. Coleman 21, 64 

V. Collins 142, 149 

V. Commissioners (59 N. Y.) 

345. 394 
V. Commissioners (4 Wall.) 602 
I). Commissioners of High- 

ways_ 159, 165, 171 

V. Commissioners of Taxes 342 
V. Comstock 398 

V. Common Council of De- 
troit 44, 282, 287, 291, 
309,813, 610, 614 
V. Cook (14 Barb, and 8 

N. Y.) 90, 765, 766, 767, 
768, 772, 784, 786, 789 
V. Cook (10 Mich.) 404, 405 
V. Corning ■ 398 

V. County Board of Cass 267 
V. Cover 789 

V. Cowles 102, 760 

V. Croswell 401 



TABLE OF CASES CITED. 



liii 



People V. Curtis 






22 


V. Daniel 






109 


V. Dawell 






23, 503 


■ V. Dayton 






84 


V. Dean 






494 


V. Denahy 






179, 182 


V. Devlin 






187 


V. Dill 






398 


V. Doe 






94 


V. Draper 


57, 


108, 


206, 207, 


, 


226 


, 230 


232, 714 


V. Dubois 






337 


V. Dudley 






178 


V. Fancher 






102 


V. Ferguson 




766, 


767, 794 


V. Finnegan 






401 


V. Fisher 






208 



V. Flagg 226, 283, 614, 616 
V. Flanagan 337 

V. Ford 417 

V. Frisbie 116, 492 

V. Gallagher 209, 210, 727 

V. Garbutt 403 

V. Gates 141, 603 

V. Gerke 16 

V. German, &c. Church 682 
V. Gies 80, 516 

V. Gilbert 456 

». Goodwin 405, 786 

V. Gordon 778 

V. Governer 141, 194 

V. Gray 268 

V. Green 336, 700, 702 

V. Hartwell 94, 760, 781 

V. Haskell 337 

V. Hatch 160, 188 

V. Hawes 288 

V. Hawley 727 

V. Hayden 700, 701 

V. Hennessey 386 

V. Higgins 768, 779, 780, 786, 
789 
V. Hill 215 

V. Hilliard 784 

V. Holden 756, 766, 789 

V. Holley 94 

V. Hurlbut 47, 166, 179, 212, 
229, 231, 282, 294, 308 
V. Tmlay 21 

V. IngersoU 339, 349 

V. Institution, &c. 175 

V. Jackson & Michigan 

Plank R. Co. 340, 358, 
719, 720 
V. Jenkins 734, 741 

V. Jenness 596 

V. Jones 786 

V. Keenan 415 

V. Kelsey 231 



People V. Kent County Canvassers 773 
V. Kerr 676, 688, 689, 690, 692 
V. Kilduff 761, 784 

ti.'Kniskern 703 

». Koeber 509 

V. Kopplekom 757, 758 

V. Lake Co. 100 

V. Lamb 403 

V. Lambert 386, 392 

». Lambier 497 

V. Lawrence 95, 99, 173, 215, 
225, 257, 259 
V. Lippincott 336 

V. Liscomb 430 

V. Looaiis 766 

V. Lothrop 313 

t!. Lott 605 

V. Lvnch 463, 478 

V. Mahaney 161, 164, 174, 176, 
184, 186, 207, 294, 645 
V. Manhattan Co. 340 

V. Martin . 759 

V. Matteson 766, 771, 786, 789 
V. Maynard 88, 239, 312, 776 
». Mayworm 766 

V. McCallum 176, 179, 186 

»..McCann 178, 180 

V. McCreery 283 

V. McGowan 404, 406 

V. McKay 393 

V. McKinney 79, 837 

V. McMahon 385, 387, 888 

V. McManus 766, 771, 779 

V. McNealy 406 

V. McRoberts 101, 659 

V. Medical Society of Erie 249 
V. Mellen 177 

V. Mercein 432 

V. Merrill 155 

V. Mitchell 469, 476 

V. MoUiter 781 

V. Morrell 67, 108 

V. Morris 212, 2.33, 292, 308, 

337 
V. Mortimer 332 

V. Murray 220 

V. Nally 144 

V. Nearing 665 

V. New York 344, 662, 654, 720, 

740 
V. Nichols 647 

i>. N. Y. Central R. R. Co. 

68, 72, 80, 209, 210, 225 
V. Parker 62 

V. Pease 762, 763, 764, 768. 770, 
778, 784, 790, 791, 
792, 794 
V. Peck 94 

V. Phelps 332 



liv 



TABLE OP CASES CITED. 



People i>. Phillips 


387, 783 


V. Pine 


401 


V. Pinkney 


232 


V. Piatt 


186, 335 


V. Porter 


386, 593, 759 


V. Potter 


79 


V. Power 


232, 283, 289, 




i 339 


V. Pritchard 


185 


V. Purdy 


68, 71, 95, 187 


V. Quigg 


178, 185 


V. Raymond 


79, 337. 


V. Reed 


741 


V. Robertson 


785, 786, 788 


V. Rochester 


178, 218 


V. Roe 


784, 741 


V. Roper 


342 


V. Royal 


398 


V. Ruggles 


590, 592 


V. Rumsey 


101 


V. Runke 


94 


V. Sackett 


789 



V. Salomon 144, 150, 227, 318, 
777 
V. Saxton 765 

V. Schermerhorn 90 

V. Schryver . 380 

V. Seaman 765, 767, 786 

V. Seymour 467 

V. Smith 371, 881 

V. Springwells 813, 614 

V. Starne 97, 99, 170 

V. State Auditors 480 

V. Stevens 243 

V. Stewart 401 

V. Stout 142, 147 

». Sullivan 377 

V. Supervisor, &c. 115 

V. Supervisor of Onondaga 

186, 256 
V. Supervisors, &c. 785 

V. Supervisors of Chenango 95, 

164, 479, 623 
V. Supervisors of Columbia 

274, 461 
V. Supervisors of El Dorado 267 
V. Supervisors of Greene 785 
V Supervisors of New York 111. 
118, 288 
V. Supervisors of Orange 108, 

204, 210, 224 
V. Sufiervisors of Saginaw 608 
V. Supervisors of San Fran- 
cisco 283 
V. Tallman 704 
V. Tappan. 294 
V. Tazewell County 267 
V. Thacher 764 
V. Thayers 401 



People ». Thomas 386, 391 

V. Thurber 21 

V. Tisdale 766, 768 

V. Tompkins 94 
V. Township Board of Salem 

261, 493, 608, 615, 669 

». Toynbee 210 

V. Turner 367 

V. Tweed 232 

V. Tyler 221, 389, 404 

V. Van Cleve 784, 786, 
789 

V. Van Eps 505 

V. Van Home 381 

V. Van Slyck 784 

V. Videto 401 

V. Waite 780 

V. Wallace 97,156 

V. Webb 404, 405, 406 

V. Weissenbach 432 

V. Whyler 689 

V. Williams 155 

V. Willsea 178 

V. Wilson 394, 565, 779 

V. WoTthington 640 

V. Wright 108, 184 

V. Young 109, 303 

Peoria v. Calhoun 249 

V. Harvey 704 

V. Kidder 621, 630, 641 

Peoria County v. Harvfiy 704 

Peoria, &e. R. R. Co. v. Peoria, 

&c. Co. 344 

Percy, In re 417 

Perdue v. Burnett 528 

Pereless v. Watertown 456 

Perkins v. Corbin 836 

V. Lewis 272 

V. Milford 281 

V. Mitchell 552 

V. Perkins 461 

Ferret ». New Orleans Times 569 

Perrine v. Chesapeake & Delaware 

Canal Co. 495 

i;. Farr 509 

V. Serrell 59 

Perry v. Keene 206 

V. Tie wis 59 

V. Mann 528 

V. State 430 

V. Whittaker 785 

Perry's Case 325, 596 

Persons v. Jones 61 

Peru V. French 304 

Pesterfield v. Vickers 242 

Peterman v. Ruling 193 

Peters v. Iron Mt. R. R. Co. 719, 725 

Petersburg v. Metzker 242 

Peterson v. Lothrop 61 



TABLE OB" CASES CITED. 



Iv 



Pettibone v. La Crosse & Mil- 
waukee R. R. Co. 705 
Pettigrew v. Janesville 655 
Petty V. Tooker 682 
Pharis v. Dice 356 
Phelps V. Goldtbwaithe 771 
V. Meade 649 
V. Racey 747 
V. Schroder 784, 785 
Philadelphia v. Commonwealth 605 
V. Dickson 704 
V. Dyer 704 
V. Fox 232, 308 
V. Scott 715, 741, 747 
V. Tryon 637, 736 
Philadelphia, &c. R. R. Co. v. . 

Bowers 721 

Philadelphia Assoc, &c. v. Wood 627 
Philadelphia & Reading R. R. Co. 

V Yeiser 712 

Philadelphia & Trenton R. R. Co., 

Case of 684 

Phillips V. Allen 249 

V. Berick 69 

V. Bridge Co. 179, 181 

V. Bury 308 

V. Covington, &c. Co. 179 

V. Dunkirk 657 

V. People 244 

V. Wickham 686 

V. Wiley 530 

Phillpots V. Bladsdel 59 

Phiniz;^ v. Augusta 311 

Phipps V. State 741 

Phoenix Ins. Co. v. Allen 416 

V. Commonwealth 21 

Piatt V. People 779 

Picquet, Appellant 116, 491 

Pierce v. Bartrum 730 

V. Pierce 227 

V. State 401 

Pierson v. State ^1 

Pike V. Megoun 83, 777 

V. Middleton 256 

Pike Co. V. Barnes 144, 779 

Pilkey v. Gleason 193 

Pim V. Nicholson 98, 170, 183. 

198 
Pingrey v. Washburn 167, 719, 720 
Piper V. Chappell 246 

Piqua Branch Bank v. Knoop 164, 340, 

342 
Piscataqua Bridge v. New Hamp- 
shire Bridge 342, 343, 482, 665 
Pitman v. Bump 454 
Pittock V. O'Neil _ 397, 560, 661, 576 
Pittsburg V. Coursin 90 
V. Grier 304 
V. Scott 661, 662 



Pittsburg, &c. R. R. Co. v. S. W. 

Penn. R. R. Co. 724 

Pixley V. Clark 716 

Plant, Ex parte 430 

Planter's Bank v. Black 116 

V. Sharp 163, 340 

Plainer v. Best 59 

Pleasant v. Kost 638 

V State 401 

Pleasants v. Rohrer 454 

Pledger v. Hitchcock 530 

Plimpton V. Somerset 288, 394 

Plitt V. Cox 692, 698 

Plumb V. Sawyer 448, 461 

Plummer v. Plummer 84 

Pocopson Road 662 

Poertner v. Russel 64 
Police Commissioners v. Louisville 716 

Police Jury v. Britton 267 

V. Shreveport 232,-233 

Polk V. State 380 

Polk's Lessee v. Wendal 17 

Pollard V. Lyon * 528, 529 

V. Pleasant Hill 269 

Pollard's Lessee v. Hagan 31, 652, 

653 

Pollock V. McClurken 488 

Pomeroy v. Chicago, &c. R. R. 

Co. 684 

Pond V. Negus 93 

V. People 377, 378 

Ponder v. Graham 136 

Pontiac v. Carter 252, 678 

Pope V. Macon 459, 486 

V. Phifer 179 

Popham V. Pickburn 571 

Porter w. Bothius 630 

V. Hill 58 

V. Marriner 351 

V. Sawyer 774 

Porterfield v. Clark 17 

Port Huron v. Ashley 680 

Portland v. Bangor 497 

Portlapd Bank v. Apthorp 699 

Port Wardens v. The Ward 731 

Portwood V. Montgomery 233, 289 

Postmaster v. Early 115 

Potter V. Hiscox 607 

Powell V. Brandon 31 

V. Sims 31 

•Powers V. Bears 701, 702 

V. Bergen 127 

V. Dougherty Co. 144 

V. Dubois 580 

V. Skinner 169 

Powers's Appeal 658, 703, 704 

Pratt V. Brown 65, 481, 661, 668, 672 

V. Donovan 605 

V, Jones 457 



Ivi 



TABLE OF CASES CITED. 



Pratt u. People 


774 


V. TefFt 


447 


Pray v. Northern Liberties 


640 


Prentiss v. Boston 


3U 


V. Holbrook 


68 



Presbyterian Society v. Auburn, 

&c. R. R. Co. 684, 696 

Prescott V. City of Chicago 179 

V. State 25, 367 

V. Trustees of Illinois & 

M. Canal 165 

Preston v. Boston 499 

«. Browder 17 

Prettyman v. Supervisors, &c. 144, 

272 

Price V. Hopkin 191, 456 

V. Mott 76 

V. New Jersey R. R. Co. 723 

V. State 404, 405, 406 

Priehard's Case 163 

Prigg V. Pennsylvania 218 

Primm v. Belleville 642 

Pritchett v. State 405 

Pritz, Ex parte 156 

Proctor V. Andover 662 

Proprietors, &c. v. Laboree 456 

Proprietors, &c. v. Nashua & 

Lowell R. R. Co. 655, 694, 710, 

711 
Prother v. Lexington 305 

Protho V. Orr 99, 178 

Protzman v. Indianapolis, &c. R. R. 

Co. 679, 690 

Prout V. Berry 116 

Providence v. Clapp 311 

Providence Bank v. Billings 342, 495, 

599 
Pryor«. Downey 131, 479 

Pulford V. Fire Department 170 

Pull'en V. Raleigh 237 

Pumpelly v. Green Bav, &c. Co. 677, 

680 
Purcell V. Lowler 651 

Purdy V. People 80 

Purvear v. Commonwealth 26, 729 
Putnam v. Flint 68 

V. Johnson 755 



Q. 

Quackenbush v. Danks 351, 352, 461 
Quarrier, Ex parte 322 
Queen, The, v. Badger 381 
V. Collins 635, 536 
V. Cooks 782 
r. Hennessy 166 
)). Justices of Hert- 
fordshire 616 



Queen, The, v. Justices of London 517 
V. Justices of Suffolk 617 
V. Lefroy 666 

V. Newman 579 

V. Pikesley 385 

Quick V. Whitewater 71 

Quimby v. Vermont Central R. R. 

Co. 697 

Quin w. State 78, 754 

Quincy v. Jones 252 



E. 



Radcliflfe's Executors v. Brooklyn 252, 
254, 676, 677 
Rader v. Road District 232 

Ragatz V. Dubuque 701 

Rail V. Potts 777 

Railroad Co. v. Brown 14 

V. Com'rs of Clinton 

Co. 142, 144 

V. Dayton 695 

V. Ferris 699 

V. Fuller 719, 721 

V. Gregory 179 

V. Jackson 607 

V. Lake 657 

V. McCIure 42 

V. Peniston 603 

V. Rock 16 

V. Shurmeir 692 

V. Trimble 23 

t). Whiteneck 178 

Railroad Commissioners v. Port- 
land, &c. R. R. Co. 340, 341, 

724 
Railway Gross Receipts Tax 606 

Raleigh v. Sorrell , 749 

Raleigh, &c. R. R. Co. v. Davis 672 
V. Reid 342 
Ralston v. Lotbain 448 

Ramsey v. People 88 

Rand v. Commonwealth 332, 333 

Randall v. Eastern R. R. Corp. 254 
V. Kehlor 613 

Randolph, Ex parte 199 

V. Good 78, 320 

Randolph Co. v. Ralls 612 

Rangeley v. Webster 22 

Ranger v. Goodrich 630 

V. Great Western R. R. 616 
Rankin v. West 75 

Rape V. Heaton 23, 507, 609 

Rathbone v. Bradford 190 

Rathbun v. Wheeler 449 

Ratzky V. People 331 

Rawley v. Hooker 365 

Rawson v. Spencer 234 



TABLE OF CASES CITED. 



Ivii 



Ray I'. Gage 461 

Ray Co. v. Bentley 296 

Read v. Beall 349 

Read's Case 422 

Reading v. Keppleman 252 

Reames v. Kerns 517 

Reardon v. St. Louis 303 

Reariiiic v. Wilcox 546 

Reaume v. Chambers 31 

Reciprocity Bank, Matter of 42 

Reckner v. Warner 513 

Rector v. Smith 534, 552, 553 

Red River Bridge Co. v. Clarkville 

656 

Reddall v. Bryan 16, 653, 666 

Redfield v. Florence 774 

Reed v. Rice 25 

V. State 179 

V. Toledo 236 

V. Tvler 469 

V. Wright 438 

Reeves v. Treasurer of Wood Co. 622, 

630, 636, 661, 662, 665, 741 

Reformed Church v. Schoolcraft 454, 

582 
Eegents of University v. Williams 128, 

154, 201 
Regnier v. Cabot 530 

Rehoboth V. Hunt 335 

Reid V. Delorme 542 

Reimsdyke v. Kane 18 

Reiser v. Tell Association 114, 115 

Beitenbaugh v. Chester Valley 

R. R. Co. 658 

Remington, In re 394 

Remsen v. People 4Q3 

Renner v. Bennett 783 

Requa v. Rochester 306 

Respublica v. Dennie 626, 538 

V. Duquet 747 

V. Gibbs 774 

Revis V. Smith 552 

Rex. See King, The. 

Rexford v. Knight 698, 700, 702 

Reynolds v. Baldwin 232, 233 

V. Geary 727 

V. Shreveport 262 

V. Smallhouse 738 

Rhines v. Clark 513 

Rhodes v. Cincinnati 262 

V. Otis 786 

Rice V. Des Moines 311 

^. Foster 142, 149, 161 

V. Parkman 128 

V. Ruddiman 191 

V. State 166, 195 

V. Turnpike Co. 711 

Rice's Case 416 

Rich V. Chicago 703 



Rich V. Flanders 220, 353, 445, 457, 

462, 477 

Richard Oliver, In re 148 

Richards v. Rote 131, 479 

Richardson v. Boston 617 

V. Monson 125 

V. Morgan 622, 637 

V. Roberts 630 

V. Vermont Central R. 

R. Co. 676, 679 

V. Welcome 616 

Richland v. Lawrence 232, 233, 286, 

298, 339 
Richmond v. Long 304, 305, 308 

V. Richmond, &c. R. R. 

Co. 350, 351, 495 

Richmond, &c. Co. v. Rogers 676. 

678, 709 
Richmond, &c. R. R. Co. v. Lou- 
isa, &c. R. R. Co. 495, 656 
Riddle v. Proprietors of Locks, 

_&c. 296, 304 

Ridge Street, In re 678 

Riggin's Ex'rs v. Brown 61 

Riggs V. Wilton 64 

Rilev V. Rochester 260 

Riley's Case 333, 431 

Rima v. Cowan 649 

Ring, Matter of 431 

V. Wheeler 556 

Rison V. Farr 78, 351, 354, 450, 451 
Roanoke, &c. R. R. Co. v. Davis 

264 
Robbins v. Fletcher 529 

V. State 401 

V. Treadway 529 

Roberts v. Caldwell 23 

u. Chicago 252, 677 

V. Ogle 734 

Robertson v. Bullions 581 

V. Rockford 144, 232, 272 
Robeson v. Brown 356 

Robie V. Sedgwick 289 

Robinson, Ex parte 24, 427 

V. Bank of Darien 215 

V. Bidwell 148, 215 

V. Commonwealth Insur- 
ance Co. 18 
V. Howe 357 
V. N. Y. & Erie R. R. 

Co. 679 

V. Richardson 377 

V. Robinson 709 

V. Skipworth 177 

V. State 179 ' 

V. Swope 662 

V. Ward's Ex'rs 22, 506 

V. West 512 

V. White 336 



Iviii 



TABLE OJF CASES CITED. 



Rochester v. Collins 236 

Rochester White Lead Co. v. Roch- 
ester 304, 310 
Rockford, «&c. R. R. Co. v. Cop- 

pinger 711 

Rockford, &c. R. R. Co. v. Kil- 
mer 724 
Rocfcport V. Walden 454 
Rockwell V. Hubbell's Adm'rs 351, 

352, 448 

V. Nearing 452, 606 

Rodemacher v. Milwaukee 340, 723 

Roderigas v. East R. Sav. Inst. 59 

Roethke v. Philip Best Brewing 



Co. 


728 


Rogers v. Bradshaw 


700 


V. Burlington 


145, 267 


V. Coleman 


22 


V. Collier 


250 


V. Goodwin 


86 


V. Greenbush 


■461 


V. Jones 


242 


V. State 


185 


V. Vass 


191 


Rohrbacker v. Jackson 


763 


Roll V. Augusta 


262 


Rome V. Ombeig 


252 


Rood ». McCargar 


215 


Roosevelt ». Meyer 


16 


Root's Case 


709 


Ropes V. Clinch 


15 


Rose V. Lonax 


169 


Roseberry v. Huff 


648 


Rosenburg v. Des Moines 


306 


Rosier v. Hale 


448 


Ross V. Duval 


17 


». Irving 


486 


V. McLung 


17 


V. Whitman 


110 


Ross's Case 


332, 431 


Rothschild v. Grix 


66 


Rounds V. Mumford 


252 


B. Waymart 


186 


Roush V. Walter 


740 


Routsong V. Wolf 


470 


Rowan V. Runnels 


17, 18 


V. State 


438 


Rowe V. Addison 


656 


V. Granite Bridge Corpora- 


tion 


679 


V. Portsmouth 


311 


Royal British Bank v. Turquand 270 


Rozier v. !f agan 


127 


Rue High's Case 


755 


Rugples V. Nantucket 


665 


Ruloff ». People 


386, 389 


Rumney v. Keyes 


420 


Rumsey v. People 


312 


Runnels v. State 


385 



Ruohs V. Backer 

Rusch V. Davenport 

Rush V. Cavenaugh 

Rushing v. Sebree 

Russell V. Burlington 
'». Burton 
V. Jeffersonville 
41. Men of Devon 
V. New York 
V. Pyland 
V. Rumsey 
V. Whiting 

Rust V. Gott 
V. Lowe 

Ruth, In re 

Rutland v. Mendon 

Ryalls V. Leader 

Ryan v. Lynch 
V. Thomas 

Ryckman v. Delavan 

Ryegate ». Wardsboro' 

Ryerson ». Brown 

V. Utley 177, 



S. 



556 

304, 305 

417 

182 

252 

166 

268 

241, 303 

656, 747 

774 

470, 471 

431 

774 

699 

729 

64 

669, 661 

97, 170, 171 

16 

531 

71 

667, 668 

182, 614, 617 



Sackett v. Sackett 31 

Sacramento v. Crocker 627 

Sadler v. Langham 84, 86, 218, 661, 

662, 668 
Safford v. People 401 

Sailly V. Smith 371 

Salem Turnpike v. Essex Co. 233 

Salters o. Tobias 115 

Saltmarsh v. Bow 311 

Saltpetre Case 747 

Sammons v. HoUoway 603 

San Antonio v. Jones 144 

V. Lane 268 

Sanborn v. Deerfield 270 

V. Rice 288, 614, 617 

Sanders v. Hillsboro' Ins. Co. 351 

V. Metcalf 394 

Sandford v. Nichols 373 

Sands v. Kimbark 512 

Sanford v. Bennett 567, 568 

San Francisco ». Canavan 232, 294 
Sangamon Co. v. Springfield 339 

San Mateo Water Works v. Sharp- 
stein 681 
Sans V. Joerris 567 
Santo V. State 142, 147, 205, 215, 216, 

727 
Sater ». Burlington & M. P. Plank 

R. Co. 708 

Satterlee v. Mathewson 325, 469, 

476 
V. San Francisco 172 



TABLE OF CASES CITED. 



lix 



Saunders v. Baxter 


660 


V. Cabaniss 


116 


V. Haynes 


781 


V. Mills 


560, 679 


V. Rodway 


420 


V. Springstein 
V. Wilson 


622 


486 


Savage v. Walshe 


94 


Savannah v. Hartridge 


286 


V. State 


174, 216 



Savannah, &c. R. R. Co. v. Savan- 
nah 690 
Savings Bank v. Allen 469 
V. Bates 468 
Savings Society v. Philadelphia 241 
Sawyer v. Alton 638 
V. Corse 304 
V. Insurance Co. 79 
V. Vermgnt, &c. R. R. Co. 722 
Sayles v. Davis 603 
Sayre v. Wisner 461 
Suales ». Chattahoochee Co. 296 
Si'anlan v. Childs 84, 86 
Schenley v. Alleghany City 621 
V. Commonwealth 448, 461, 
467 
Schiner v. People 378 
School District v. Merrills 647 
V. Wood 296, 297, 298 
Schooner Paulina's Cargo v. United 

States 68 

Schooner Rachel v. United States 449, 

477 
Schrader, Ex parte 112 

Schurman v. Marley 32 

Schurmeier v. St. Paul, &c. R. R. 

Co. 684 

Scituate v. Weymouth 234 

Scofield V. Watkins 642 

Scott, Hx parte 140 

V. Clark 192, 193 

V. Detroit Young Men's 

Society Lessee 36, 43 

V. Jones 16 

V. Manchester 304 

V. Mather 486 

V. McKinnish 630 

V, Sand ford 68 

V. Smart's Ex'rs 205 

V. Willson 735 

Scoville V. Cleveland 620, 630, 632 
Scripps V. Reilly 569 

Scuffletown Fence Co. v. McAllis- 
ter 516, 610, 741 
Seaman's Friend Society v. Boston 641 
Sears v. Com'rs of Warren Co. 21 
V. CottreU 108, 210, 221, 441 
V. Terry 609 
Secombe v. Railroad Co. 667 



Sedgwick v. Bunker 


233 


448 


V. Stanton 




167 


Seely v. Pittsburg 




632 


Seibert v. Linton 




116 


Selby V. Bardons 




62 


Selin V. Snyder 




609 


Selma, &c. R. R. Co., Ex parte 


145 


Selman v. Wolfe * 




737 


Selsby v. Redlon 




465 


Semayne's Case 




371 


Semler, Petition of 




43Q 


Sequestration Cases 




358 


Sergeant v. Kuhn 




125 


Serrill v. Philadelphia 




628 


Servis v. Beatty 




80 


Sessions v. Crunkilton 630, 


636 


741 


Sessurus v. Botts 




227 


Settle V. Van Enrea 




72 


Seven Bishops' Case, The. 




433 


Sewall V. St. Paul 




311 


Sexton V. Todd 




529 


Seymours. Hartford 




641 


V. Turnpike Co. 




264 


Shackford v. Newington 


278 


612 


Shackleford v. Coffey 




668 


Shafer v. Mumma 




243 


Shannon v. Frost 


581 


682 


Sharp V. Contra Costa Co. 




283 


V. New York 




180 


V. Spier 




621 


Sharp's Ex'rs v. Dunovan 




613 


Sharpless v. Mayor, &c. 144, 279, 


699, 






611 


Shartel v. Minneapolis 




311 


Shattuck V. Allen 




576 


Shaw, Ex parte 




430 


V. Charlestown 




704 


V. Crawford 




735 


V. Dennis 


613 


,689 


V. Macon 




164 


V. Moore 




696 


V. Nachwes 




432 


V. Norfolk R. R. Corp 




474 


V. Thompson 




420 


Shawnee County v. Carter 




91 


Shearlock v. Beardsworth 




532 


Sbeckel v. Jackson 




665 



Shehan's Heirs v. Barnett's Heirs 125 
Shelby v. Guy 17, 465 

Sheldon v. Kalamazoo 311 

V. Wright 509, 611 

Shepardson v. Milwaukee, &c. R R. 

Co. 226,701,702,703 

Shepherd v. People 331 

Sheppard's Election Case 779 

Sherburne v. Yuba Co. 303, 305 

Sherman v. Buick 662 

V. Milwaukee, &c. R. R. 
Co. 659 



Ix 



TABLE OF CASES CITED. 



Sherman v. Story 


165 


Slinger v. Henneman 


144, 152 


Sherrard v. Lafayette Co. 


268 


Sloan V. Cooper 


59 


Sherwood v. Fleming 


472 


V. Pacific R. R. Co. 


340, 719 


Shields V. Bennett 


179, 185 


v. State 


232 


Shifflet V. Commonwealth 


385 


Smails v. White 


179 


Shinner v. Hartford Bridge Co. 252 


Small V. Danville 


308 


Shipley v. Todhunter 


534 


Smalley v. Anderson 


530 


Shipp V. Miller 


17 


Smead v. Indianapolis, &c. 


R. R. 


Shipper v. Pennsylvania R. R 


. Co. 21 


Co. 


269 


Shore V. State 


381 


Smith, Ex parte 


21,22 


Shorter, Matter of 


322 


Matter of 


25 


V. People 


377 


Petition of 


431 


V. Smith 


343 


V. Adrian 


150 


Shouk V. Brown 131 


461, 473 


V. Appleton 


■368 


Shover v. State 


596, 734 


u. Ballantyne 


61 


Shrader, Ex parte 


730 


u. Brown 


366 


Shreveport v. Levy 


684 


V. Bryan 


448 


Shrunk v. Schuylkill Nav. Co 


676, 


V. Cheshire 


268 




677 


V. Clark Co. 


271 


Shumway v. Bennett 


112, 122 


V. Cleveland 


469, 478 


V. Stillman 


23 


V. Commonwealth 


180, 181, 


Sibley v. Williams 


31 




385 


Sidgreaves v. Myatt 


629 


u. Connelley 


668 


Sigourney v. Sibley 


614, 516 


V. Eastern R. R. Co. 


722 


Sill V. Corning 


204, 210 


V. Gould 


366 


Silliman v. Cummins 


470 


V. Howard 


551 


Sills V. Brown 


392 


V. Hoyt 


186, 192 


Silvus ». State 


403 


V. Hunter 


16 


Simmons v. Holster 


528 


V. Janesville 


146, 148 


Simonds's Ex'rs v. Gratz . 


595 


V. Judge 


110, 210 


Siraonds v. Siraonds 117, 


134, 491 


V. Leavenworth 


311 


Simpson v. Bailey 


179, 180 


V. Levinus 


230 


:;. Savings Bank 


361, 462 


V. Macon 


206 


». State 


31 


V. Maryland 


25 


Sims V. Irvine 


17 


V. McCarthy 


144, 199 


Sinclair v. Jackson 


199, 200 


V. McMasters 


774 


Single V. Supervisors of Marathon 179, 


V. Merchand's Ex'rs 


466 




476 


V. Morrison 


191, 456 


Sinks V. Reese 


766 


V. Morse 


237, 260 


Sinton V. Ashbury 


232, 283 


V. Nelson 


581 


Skelding «. Whitney 


58 


V. Packard 


351, 357 


Skilding v Herrick 


59 


V. People 


79, 500 


Skinner, Ex parte 


432 


V. Rice 


609 


V. Hartford Bridge Co. 678 


V. Scott 


561 


Slack V. Jacobs 67, 68, 


221, 226 


V. Short 


603 


V. Maysville 


610 


V. Shriver 


18 


V. Railroad Co. 77, 


145, 271 


V. Silence 


6S0 


Slade V. Slade 


58 


V. Smith 


190, 603 


Slatter v. Des Moines Valley R. R 


V. Speed 


199 


Co. 


678, 712 


V. Stewart 


529 


Slaughter v. Commonwealth 


21 


u. Swormsted 


582 


V. People 


244 


V. Thomas 


633 


Slaughter-House Cases. ' See Live- 


V. iThursby 


68 


stock, &c. Association v. Cres- 


V. Van Gilder 


351 


cent City, &c. Co. 




V. Washington 


252, 678 


Slauson V. Racine 


217 


Smith, Mary, Case of 


385 


Slave Grace, The 


366 


Smoot V. Wetumpka 


304 


Slayton v. Rulings 


• 90, 94 


Smyth V. McMasters 


774 


Sleght V. Kane 


320 


V. Titcomb 


144 



TABLE OF CASES CITED. 



Ixi 



R. R. Co. 

707, 709, 
365. 

655, 



Sneider v. Heidflberger 
Snowhill V. Snowhill 
Snyder v. Andrews 

V. Bull 

V. Fulton 

V. Pennsylvania R. R. Co. 

V. Rockport 
Society, &c. v. Wheeler 17, 466, 
Society for Savings v. Coite 
Society of Scriveners v. Brooking 
Sohieru. Massachusetts Hospital 

V. Trinity Church 
Solomon v. Cartersville 
Somerset v. Stoystown Road 
Soraerville v. Hawkins 
Somerville & Easton 

ads. Doughty 
Sommersett's Case 
Sorchan v. Brooklyn 
SoroL-co V. Geary 
Sortwell V. Hughes 
Southard v. Central R. R. Co. 
Soutli Carolina R. R. Co. v. Steiner 

684, 
South Ottawa v. Perkins 164, 

Southport V. Oaden 
Southwark Bank v. Commonwealth 

South-western R. R. Co. v. Paulk 
South-western R. R. Co. v. Tele- 
graph Co. 701, 
Southwick V. Southwick 
Southworth v. Palmyra & Jackson- 
burgh R. R. Co. 
Soutter V. Madison 
Spangler v. Jacoby 
Spangler's Case 
Sparhawk v. Salem 

V. Sparhawk 
Sparrow v. Kingman 
Spaulding v. Lowell 
Spears V. State 
Specht V. Commonwealth 
Speer v. Plank Road Co. 
V. School Directors 
Spencer v. Board of Registration 
V. Dearth 69 

V. McMasters 
V. State 68, 70, 185, 

Spiller V. Woburn 
Spooner v. McConnell 
Sporrer v. Eifler 
Spragg V. Shriver 
Sprague v. Birdsall 
V. Brown 
V. Norway 
V. Worcester 
Sprecker v. Wakeley 
Spriggins v. Houghton 



97, 164, 
16, 

' 116, 



595, 

277, 



34, 36, 



• 678, 
351, 362, 



352 
125 
577 
472 
579 
684 
252 
462 
602 
245 
125 
581 
187 
185 
533 

711 
366 
94 
747 
728 
472 

687 
268 
242 
68, 
164 
726 

703 
467 

171 
868 
171 
429 
254 
136 

65 
760 
387 
734 
186 
610 
753 
,61 
629 
186 
586 
164 
603 
131 
496 

79 
779 
679 
454 
778 



Spring V. Russell 


610 


Springer v. Foster 


17, 360 


Springfield v. Connecticut River 


R. R. Co. 


656, 682, 684 


Springfield v. Doyle 


306, 811 


V. Le Claire 


304, 310 


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


Sprmg 


267 


Springfield, &c. R. R. Co. v. Hall 668 


Stackhouse v. Lafayette- 


304 


Stacy V. Vermont Central R. R. 


Co. 


659 


St. Albans v. Bush 


507 


Standiford v. Wingate 


337 


Stanfield v. Boyer 


529 


Stanford v. Worn 


668 


Staniford v. Barry 


116 


Stanley, Ex parte 


382 


V. Colt 


125 


V. Stanlev 


726 


V. Webb" 


559, 560, 662 


Starbuck v. Murray 


23, 507 


Starin v. Genoa 


144, 267 


Starr v. Camden, &c. R. 


R. Co. 684, 


» 


696 


V. Pease 


135, 137 


State V. Adams 116, 320 


,322,341,789 


!). Allen 401, 


441, 613, 576 


V. Allmond 


726 


V. Alman 


393, 404 


V. Ambs 


696, 734 


V. Arlin 


326 


V. Ashley 


205 


V. Atwood 


462 


V. Avery 


786 


V. Auditor 


449, 462 


V. Bailey 


192 


V. Baker 


78. 757, 758 


V. Bank of South Carolina 354 


0. Barbee 


77, 462 


V. Barker 


335 


V. Barnett 


26 


V. Barrett 


420 


V. Bartlett 


389 


V. Battle 


405 


V. Behimer 


406 


V. Beneke 


142, 147, 513 


V. Benham 


406 


V. Bernoudy 


823 


V. Berry 


185 


V. Binder 


752, 781 


V. Bladsdell 


68 


V. Bond 


191, 767 


V. Bonny 


499 


V. Boone County Court 52 


V. Bostick 


386 


V. Bowers 


178 


V. Branin 


232, 283 



V. Brennan's Liquors 877, 613 



Ixii 



TABLE OF CASES CITED. 



State V. Brockman 


387 


State V. County Judge of Davis 176, 


V. Brooks 


405 




176 


V, Brown 


399 


V. Covington 


138 


V. Brunetto 


393 


V. Cowan 


232, 243 


V. Brunst 


337 


tf. Cox 


215, 395 


V. Buchanan 


31 


V. Crane 


616 


V. Bunker 


239 


V. Croteau 


401 


V. Burlington, &c. R. R. Co. 


709 


V. Crowell 


582 


V. Burnett 


787 


V. Cummings 


31, 323 


V. Burnham 534, 543, 658 


579 


V. Curtis 


405 


V. Burns 


399 


V. Daley 


449 


V. Butman 


567 


V. Danforth 


407 


V. Buzine 


22 


V. Daniels 


777 


V. Buzzard 


434 


V. Dean 


622 


V. Cain 


185 


V. Demorest 


278 


V. Callendine 


404 


V. Denton 


396 


V. Cameron 


389 


V. Dews 


337 


V. Campbell 


31 


e. Doherty 132, 139 


, 441, 479 


V. Cape Girardeau, &c. R. R. 




V. Dombaugh 


216 


Co. 28 


221 


V. Donehey 


727 


V. Cardozo 


226 


V. Donnewirth 


785 


V. Carew 


367 


V. Dorori 


68,81 


V. Carr 


312 


0. Douglass 


336 


V. Carro 


25 


V. Douseman 


217 


V. Carroll i 


778 


V. Draper 185, 


337, 789 


V. Cavers 771 


784 


V. Duffy 


490, 491 


V. Cawood 


31 


V. Dunning 


140 


V. Chambers 


386 


V. Easterbrook 


215 


V. Chandler 589, 590 


691 


V. Ellis 


193 


V. Charleston 606, 631, 741 


784 


V. Elwood 765, 


768, 771 


V. Cincinnati Gas Co. 254, 


493, 


V. Ephraim 


404, 405 


682 


690 


V. Everett 


896 


V. Clark 


215 


V. Pagan 


226 


V. Clarke 


242 


V. Felton 


379 


V. Cleaves 


389 


V. Ferguson 235,. 236, 


249, 462 


■V. Clerk of Passiac 784, 786 


789 


V. Fetter 


786 


V. Click 


94. 


V. Field 


147, 151 


V. Coleman & Maxy 


440 


V. Fisher 


750 


V. Collector of Jersey City 


642 


V. Fiske 


260 


V. Commissioners 


186 


V. Fleming 


116 


V. Com'rs of Baltimore 


216 


V. Foley 


734 


V. Com'rs of Clinton Co. 


144 


V. Forshner 


480 


V. Com'rs of Hancock 


144 


V. Fosdick 


21 


V. Com'rs of Ormaby Co. 


109 


V. Framburg 


393 


V. Com'rs of Perry 


217 


V. Franklin Falls Co. 


456 


V. Com'rs of School, &c. 




V. Freeman 244, 


393, 749 


Lands 


367 


V. Fry 


136 


V. Common Council of Mad- 




V. Fuller 


630 


ison 


236 


u. Garesche 


322 


V. Conner 


404 


V. Garton 


603 


V. Constitution 


733 


V. Garvey 


404 


V. Cooper 


406 


V, Gatzweiler 


350 


V. Copeland 142, 151 


215 


t!. Gates 


768 


V. Corson 


332 


!i. Georgia Medical Soci 


ety 242 


V. County Com'rs of Balti- 




V. Gibbs 


785 


more 94 


488 


V. Gibson 


490 


V. County Court 


641 


V. Giles 


781 


V. County Court of Boone 


156 


B. Gleason 


110 


V. County Judge 


785 


V. Goetze 


760 



TABLE OF CASES CITED. 



Ixiii 



State V. Goldspecker 






79 


State V. Knight 


166 


V. Governor 






141, 784 


V. Krebs 


495 


V. Graves 251 


253, 


699, 702 


V. Kruttshnitt 


204 


V. Green 






404 


V. Lafayette Co. Court 


179, 182 


V. Griflfey 






765, 770 


V. Laverack 688, 


692, 694 


V. Guild 




386, 


387, 888 


V. Lawrence 


389 


V. Guiterez 






210 


V. Lean 


93, 192 


V. Gurney 






179, 513 


V. Learned 


332 


V. Gut 






179 


V. Lehre 


626 


V. Guttenberg 






468 


V. Lee 


406 


V. (iuttierrez 






210 


V. Leiher 


749 


V. Haben 




284, 


291, 614 


V. Linn Co. Court 


145 


V. Hairston 






490 


V. Litchfield 


376 


V. Halifax 






688 


V. Little 


404 


V. Hammonton 






266 


V. Lowhorne 


388 


V. Harris 






281 


V. Lyles 


205 


V. Harrison 




179 


784, 785 


V. Mace 


72, 81 


V. Hawthorn 






346, 365 


V. Macon Co. Court 


77 


V. Hay 






749 


v.. Main 


155 


V. Hayne 






617 


V. Manning 


332, 477 


V. Hays 






226 


V. Mansfie d 


395 


V. Henry 






403 


V. Marlow 


786 


V. Herod 






246 


V. Marler 


380 


V. Heyward 






340 


V. Martin 


406 


V. Hilmantel 757, 


764, 


782, 789. 


V. Mathews 


162. 719 








792 


V. Mayhew 84, 85^ 441 


V. Hitchcock 






62, 166 


V. Maynard 


109 


V. Hudson Co. 




142, 


303, 640 


V. Mayor, &c. 


263, 752 


V. Hufford 






22 


V. McAdoo 


323 


V. Hundley 






380 


V. McBride 


40, 171 


». Ingersoll 






184 


V. McCann 


157, 490 


V. Jackson 






278, 602 


V. McCracken 


179, 181 


V. Jarrett 






161 


V. McDaniel 


783 


V. Jay 






676 


V. M-cGinley 


94 


V. Jennings 






232 


V. McGinnis 


897 


V. Jersey City 




244, 


248, 260, 


V. McNiell 


144 






622 


722, 735 


V. Medbury 


21, 498 


V. Johnson 


95 


513, 


786, 787 


V. Merchants' Ins, Co. 


627 


I'. Jones (50 N 


H. 


) 


380 


V. Messmore 


837 


V. Jones (6 Ala 


.) 




401, 403 


V. Metzger 


609 


V. Jones (21 Md.) 




454 


V. Miller 99, 


179, 480 


V. Jones (19 Md.) 




760, 779 


V. Mills 


640 


V. Judge, &c. 




193, 


788, 789 


V. Milwaukee Gals Co. 


493 


V. Judge of Co. 


Court 


225 


V. Mitchell 


434 


V. Jumel 






434 


V. Mobile 


694, 696 


V. Justices of Middlesex 


786 


V. Moffit 141, 


164, 737 


V. Kanouse 






399 


V. Montclair R. Co. 


696 


V. Kason 






406 


V. Morrill 


394 


V. Kattleman 






406 


V. Morris Co. 


152 


V. Keith 






42, 326 


V. Morristown 


'235 


V. Kemp 






398 


V. Neal 41, 323 


332, 404 


V. Kennon 






80, 138 


V. Ked 


754 


V. Kettle 






406 


V. Neill 


231 


V. King 






69 


V. Nelson 


404 


V. Kinsella 






182 


V. Newark 179, 180, 


463, 467, 


V. Kirke 






416 


472, 493 


647, 741 


V. Kirkley 






142, 238 


17. New Haven 


142, 719 


V. KIrkwood 






141 


V. Newton 


403 


i;. Klinger 






380 


V. New York 


253 



Ixiv 



TABLE OP CASES CITED. 



State V, Nichols 
V. North 



140 
641 



V. Northern Central R. R. 

Co. 116 

V. Norwell ' 404, 405 

V. Norwood 449, 471, 477 

V. Noyes 128, 148, 150, 230, 
340, 345, 656, 719, 721 



V. Ober 
V. O'Flaherty 
V. Olin 
V. Oliver 
V. O'Niell 
V. Orvis 
V. Oskins 
ti. Osawkee 
V. Parker 

V. Parkinson 
V. Passaic 
V. Patterson 
V. Peace 
V. Pendergrass 
V. Peterson 
V. Phalen 
V. Philadelphia 
V. Pierce 
V. Pike 
V. Piatt 
V. Portage 
V. Powers 
V. Prescott 
V. Prince 
V. Pritchard 
V. Purdy 
V. Quarrel 
V. Quick 
V. Quimby 
V. Redman 
V. Reed 
V. Reynolds . 
V. Rich 
V. Richland 
V. Richmond 
V. Robb 
V. Robbins 
V. Roberts 
V. Robinson 



391 
379 
764, 773, 791 
393 
149 
760 
' 153 
266, 610 
142, 147, 149, 
641 
83, 156 
449 
250, 403 
401 
421 
394, 512 
345, 355 
606 
98, 765, 789 
380 
159, 164 
635 
176 
727 
405 
451 
773 
395 
393 
480 
405 
404, 434 
144, 148, 398 
200 
462 
340, 431 
778 
156 
246, 388 
205, 221, 396, 726, 
728 
V. Rockafellow 381 

V. Rodman 784, 785 

V. Roj);ers 98 

V. Rollins 31 

V. Ross 406 

V. Rutledge 773 

V. Ryan 332 

V. Sauvinet 139 

V. School Board Fund 193 

V. Scott 144, 511 



State V 

V 
V 
V 

V 

V. 
V. 
V. 
V. 
V. 
V. 
V. 



659, 700 
179 
431 
25 
175, 176 
230 
437, 440 
405 
140, 781 
215, 374, 401 
404, 405 
166, 179, 182, 461, 
476 
387 
138 
State Canvassers 784 

Staten 78, 208, 320, 437, 440, 
443, 451 



. Seymour 
. Shaildle 
. Shattock 
, Shumpert 
, Silver 
Simonds 
Simons 
Slack 
Smith 
, Snow 
Spier 
Squires 

Staley 
Stanley 



V. 
V. 
V. 
V. 

V. 
V. 
V. 

v. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
l'. 
V. 
V. 
V, 
u. 
V. 
V. 
V. 



Steers 

Sterling 

St. Joseph 

St. Louis Cathedral 

St. Louis Co. Court 

Stone 

Stumpf 

Sullivan 

Summons 

Sutterfield 

Swearingen 

Swift 

Swisher 

Svmohds 

Tait 

Tappan 



784 
345 
781 
180 
293 
395 
779 

279, 476 

380, 381 
271 
781 
165 

142, 147 
78, 322, 754 

398, 406 

257, 281, 286, 613, 

614 



Taylor 

Thomas 

Thompson 

Tipton 

Tombeckbee Bank 

Towle 

Treasurer 

Trenton 

Trustees of Union 

Tucker 

Turner 

Union 

Vaigneur 

Vail 

Van Baumbach 

Van Home 

Walker 

Wallem 

Wapello 

Warren 

Weir 

Welch 

Wentworth 

Wheeler 



399 

392 

77 

394 

340, 858 
431 
. 186 
682 
144 
156 
600 
176, 463, 467 
388 

513, 781 
336 
144 
405 
780 

267, 272 

472, 785 

142, 149, 151 

244 

391 

215, 727 



TABLE OF CASES CITED. 



Ixv 



State B.Wliite S94, 579 

V. Wilcox 142, 144, 147, 162, 

231 

V. Wilkesbarre 277 

V. Wilkinson 401 

V. Williains 78, 328, 332 

V. Wilson 832 

V. Wiltz 337 

V. Wiseman 405 

V. Woodfin 394 

V. Woodrufif 38 

V. Wright 480 

V. Young, 176, 182, 760 

State Bank v. Knoup 18 

State Freight Tax Case 606 

State Tax on Foreign Held Bonds 607, 

623 

State Tonnage Tax Cases 606 

St. Charles v. Noble 623 

Steamship Co. v. Jolliffe 731, 733 

!'. Port Wardens 606 

Steams v. Gittings 454^ 455, 456 

Stebbins ii. Jennings 241 

Steckert v. East Saginaw 171 

Steele v. Smith 23 

V. Southwick 529, 530 

1'. Spruance 486 

Stein V. Burden 666 

V. Mobile ' 144, 349 

Steines v. Franklin Co. 271 

Stephenson v. Osboru 352 

Stetson V. Kempton 231, 274, 648 

Steuart v. Baltimore 513 

Stevens v. Andrews 357 

V. Middlesex Canal 672 

V. Paterson, &c. R. R. 

Co. 680 

V. State 380 

Steward v. Jeiferson 144 

Stewarts. Blaine 162 

V. GrifBth 125 

V. Hartman 662 

V. Kinsella 179, 182 

V. Mechanics' and Farm- 
ers' Bank 516 
V. New Orleans 305 
V. Ripon 311 
V. Supervisors 145 
Sticknoth's Estate 470 
Stiles V. Nokes 660, 561 
Stilwcll V. Kellogg 512 
Stine V. Bennett < 191 
Stinson v. Smith 187 
Stipp V. Brown 454 
Stittinus V. tTnited States 401 
Stitzell V. Reynolds 528 
St. Joseph w. Anthony 622 
V. O'Donohue' 622, 632 
W.Rogers 268,269 



St. Joseph, &c. R. R. Co. v. Cal- 

lender 669 

St. Joseph, &c. R. R. Co. v. 

Cotinty Court 78, 145 

St. Joseph School Board v. Bu- 
chanan Co. 100 
St. Louis V. Alexander 146 
V. Allen 232, 234 
V. Bentz 242, 243 
V. Caflferata 232, 242, 243, 
734 
V. Foster 98 
V. Gurno 262, 264 
V. Oeters ■ 637 
V. Russell 231, 232, 233, 
295 
V. Shields 166 
V. Tiefel 174, 177 
V. Weber 242, 244 
St. Louis, &c. R. R. Co. V. Clark 68 
V. Loften 342 
St. Louis, (fee. R. R. Co. v. Rich- 
ardson 710 
St. Louis, &e. R. R. Co. v. Teters 659 
St. Mary's Industrial School v. 

Brown 609 

Stockbridge v. West Stockbridge 240 
Stockdale v. Hansard 164 

V. State 434 

Stocking V. Hunt 850, 364, 449 

V. State 206, 220, 401 

Stockton I'. Whitmore 668 

Stockton, &c. R. B. Co. ». Stock- 
ton 145 
Stoukwell V. White Lake 514 
Si oddard w. Martin 774 
Stoddart V. Smith 205 
Stokes, Li re 430 
V. People 332 
V. Scott Co. 267 
Stone V. Basset 357 
V. Cooper 630 
V. Dana 372 
V. New York 655 
Stoney «. Life Ins. Co. 268 
Storey v. Eager 566 
v. Furman 351 
V. People 394, 666 
V. Wallace 560 
Storrs V. Utica >310 
Story V. Challands 533 
Stoughton V. State 740 
Stout V. Hyatt 33 
V. Keyes ' 31 
Stove V. Charlestown 233 
Stover V. People 390 
Stowell V. Lord Zouch 71 
St.Paul«. Coulter 249 
V. Leitz 310 



Ixvi 



TABLE or CASES CITED. 



St. Paul, &c. R. R. Co. f. Gardner 512 
V. Pareher 342 
Strader v. Graham . 34 

Strahl, Ex parte 431 

Strauch v. Shoemaker 463 

Strauss V. Meyer 652 

V. Fontiac 247 

Strang, Ex parte 778 

Street Railway v. Cummlnsville 679, 

690, 693 
Streety v. Wood 642, 543 

Streubel v. Milwaukee, &c. R. R. 

Co. 449 

Striker v. Kelley 94 

Stringfellow v. State 386 

Strong V. Paniel 227 

V. State 326 

Stroud V. Philadelphia 637, 735 

Stuart V. Clark 735 

V. Commonwealth 406 

I). Hamilton 72 

V. Kinsella 179, 182 

V. Laird 82, 84 

V. Warren 474 

Stupp, Me 430 

Sturgeon v. Hitchins 179 

Sturges V. Crowninshield 24, 68, 351, 

362, 353, 360, 455 

V. Hull 461 

Sturgis V. Spofford 477 

Stuyvesant v. New York 241, 724 

Sublett V. Bedwell 781 

Succession of Lanzetti 178 

Succession of Tanner 109 

Suffolk Witches, Case of 385 

Sullivan v. Adams 225 

M. Oneida 245, 374, 378 

Sumner v. Beeler 227 

V. Hicks 17 

V. Miller 449 

Sun Mutual Ins. Co. v. New York 174, 

222 
Sunbury and Erie R. R. Co. v. 

Cooper 226 

Sunbury and Erie R. R. Co. v. 

Hummel ggO 

Sunderlin v. Bradstreet 633 

Supervisors v. People 165, 177 

V. United States 17 

V. Wisconsin Cent. R. 

R. Co. 463 

Supervisors, &c. v. Heenan 174 

Supervisors of Doddridge v. Stout 100, 

658 
Du Page V. People 779 
Election 112, 122 

Iroquois v. Keady 191 
Jackson v. Bfush 250, 
271 



Supervisors of Knox Co. v. Davis 215, 

789 
Schuyler v. People 170, 
171 
Surgett V. Lapice 84 

Susquehanna Canal Co. v. Wright 679 
Susquehanna Depot v. Barry 279 

Sutherland v. De Leon 448 

Sutton V. Asker 448 

V. Board 303 

V. Tiller 661 

Sutton- Hospital, Case of 241 

Sutton's Heirs v. Louisville 710, 711 
Suydham v. Broadnax 360 

Suydam v. Moore 718, 723 

V. Williamson 17, 18, 123 

Swan V. Williams 33, 653, 672 

Swann v. Buck 98, 185 

Swayze v. Hull 169 

Swift V. Fletcher 351 

V. Newport 623 

V. Tousey 32 

■/. Tyson 18, 110 

V. Williamsburg 237, 270 

Swindel v. State 404 

Swindle v. Brooks 480 

Sydnor v. Palmer 116 

Symonds v. Carter 630 

V. Clay Co. 303 

Syracuse Bank v. Davis 463, 468 



T. 



Tabor v. Cook 
Taft V. Adams 
Talbot V. Dent 

V. Hudson 

Talkington v. Turner 

Tallman v. Janesville 

Tanner v. Albion 

Tarble's Case 

Tarleton v. Baker 

Tarlton v. Peggs 

Tash V. Adams 

Tate V. M. K. & T. R. R. Co. 254 
V. Stooltzfoos 470 

Tate's Executors ». Bell 205 

Taunton v. Taylor 730 

Tayloe, Ex parte 330 

Taylor i>. Chambers 68 

V. Church 633 

V. Commissioners . of Ross 

County 211,217 

V. Commonwealth 188 

V. French 65 

V. Hall 629 

V. Marcy 700, 702 



612 

337 

146, 261 

220, 608, 665, 

701 

768 

473, 478 

230, 749 

2, 16, 429 

774 

188 

258 



TABLE OF CASES CITED. 



Ixvii 



Taylors. McCracken 61 

V. Miles 460 

V. Nashville, &c. R. R. Co. 661 

V. Newberne 144 

V. Place 111, 116, 132 

V. Plymouth 655 

V. Porter 108, 112, 438, 442, 

652, 662 

V. State 749 

V. Stearns 367 

V. St. Louis 252 

V. Taylor 81, 752, 779, 780, 

784, 786 

V. Thompson 278 

Teel 0. Yancey 116 

Teft V. Griffin 609 

V. Teft - 134, 491 

Temple v. Mead 102, 761, 762 

Ten Eyck o. D. & R. Canal 264 

Tennessee, &c. R. R. Co. v. Adams 681 

V, Moore 141 

Tenney v. Lenz . 24^ 

Terre Haute, &c. R. R. Co. v. 

McKinley 712 

Terretti;. Taylor 201, 212, 291, 335, 339 
Terrill v. Rankin 449 

Territory v. Pyle 337 

Terry v. Bright 529 

V. Fellows 660, 651, 560, 561 
Texas V. White 1, 8, 10, 43 

Thacker v. Hawk 494 

Thames Bank v. Lovell 738 

Thames Manuf. Co. v. Lathrop 94, 478 
Tharp v. Fleming 128 

Thatcher v. Powell 17 

The Cherokee Tobacco 15 

The Rio Grande 68 

The Slave Grace 366 

Thien v. Voegtlander 668 

Thistle V. Frostbury Coal Co. 351 

Thomas v. Board of Commission- 
ers 156 
V. Dakin 241 
V. Dunaway 530 
V. Hubbell 61 
V. Leland 285, 287, 475, 476, 
699, 612, 636 
V. Owens 78 
V. Richmond 267 
V. Scott 193, 462 
V. Steckle 649 
Thomasson ». State 726 
Thompson v. Alexander 462 
V. Caldwell 454 
V. Carr 320 
V. Circuit Judge 784 
V. Commonwealth 354, 388 
C.Grand Gulf R.R. Co. 216 
V. Lee County 145, 267, 474 



Thompson ii. Morgan 469, 472 

V. Pacific R. R. Co. 601 

V. Pittston 259, 281 

V. Reid 454 

V. Suhermerhom 250 

V. State 603, 607 

V. Steamboat Morton 499 

V. Whitman 23 

Thomson v. Booneville 250 

Thorn v. Blanchard 642 

V. Com'rs of Miami Co. 268 

Thorndyke v. Boston 766 

Thorne t\ Cramer 142 

Thornington v. Smith 866 

Thornton «. McGrath 461 

V. Turner 449, 456 

Thorpe V. Rutland & Btirlington 

R. R. Co. 108, 154, 264, 342. 345, 

716, 717, 722, 724 

Thunder Bay, &o. Co. v. Speechly 696 



Thurber v. Blackbourne 




22 


Thursfield v. Jones 




309 


Thurston v. Little 




648 


i>. Thurston 


68, 


125 


Tide Water Co. v. Archer 




709 


V. Costar 


616, 


617 


Tift V. Griffin 




469 


Tillinghast v. Carr 




164 


Tillman v. Arlles 




395 


V. Shackleton 




75 


Tilton V. Swift 




463 


Tims V. State 


225, 


394 


Tinicum Fishing Co. v. Carter 




676 


Tinsman v. Belvidere & Del. R. R. 




Co. 


264, 


680 


Tioga R. R. Co. v. Blossburg 


, &c. 




R, R. Co. 




68 


Todd V. Hawkins 




534 


V. Kankakee, &c. R. R 


Co. 


711 


V. Kerr 503, 


604 


607 


V. Rough 




628 


V. Troy 




311 


Toledo Bank v. Bond 




342 


Toledg, &c. R. R. Co. v. Deacon 


719 


Toledo, &c. R. R. Co. v. Jackson- 




ville 


345 


724 


Tclen V. Tolen 




603 


Tomlin V. Dubuque, &c. R. R. Co. 


680 


Tonawanda R. R. Co. v. Munger 


681, 






723 


Tong V. Marvin 


76 


447 


Torrev v. Corliss • 




461 


' V. Field 


553, 


659 


V. Milbury 


92, 


648 


Touchard v. Touchard 




308 


Tower V. Lamb 




512 


Towle V. Forney 




125 


V. Eastern Railroad 


449 


461 


Townsend v. Des Moines 




311 



Ixviii 



TABLE OP CASES CITED. 



Townspiid V. GrifBn 


136, 508 


V. Kendall 


5U7 


Trabue v. Mays 


628 


Trapley v. Haraer 


351 


Treat v. Lord 


736, 737 


Tremain v. Cohoes Co. 


680 


Trevett v. Weeden 


35 



Trice v. Hannibal, &c. R. R. Co. 723 
Trigally v. Memphis 231 

Trombley v. Auditor-General' 661 

Troppman, Trial of 881 

Trott V. Warren 210 

Troup V. Haight 81 

Troy & Boston R. R. Co. v. Lee 709 
Troy & Boston R. R. Co. v. North- 
ern Turnpike Co. 678 
Truchelot v. Charleston 474 
'J'rue V. Plumley 628 
Truehart v Addieks 779 
Truman v. Taylor 580 
Trustees v. Bailey 117, 492 
V. McCaughey 448, 463, 468 
V. McConnel 643 
Trustees of Cass v. Dillon 277 
Erie Academy v. Erie 232 
Paris V. Cherry 114 
Schools V. Tatman 232, 238, 
286, 293, 337 
W. & E. Canal i-. Spears 679 
Trustees, &c. v. Auburn & Roth- 
eater R. R. Co. 264 
V. Bailey 111 
V. Mclver 40 
V. Shoemaker 144 
Tucker v. Aiken 778 
V. Coldwater 260 
V. Harris 326 
V. Magee , 421 
V. Virginia City 237, 260 
Tucker c<ai., Trials of 411 
Tugman v. Chicago 231, 244 
Tuller, In re 462 
Tuolumne Redemption Co. v. Sedg- 
wick 355 
Turbeville «. .Stamps 715 
Turley v. Logan Co. 164 
.Turner, Matter of 366 
V. State 1 326 
Turnpike v. Charopney 777 
Turnpike Co. v. People 64 
V. State 482 
V. Wa41ace 264 
Tuscaloosa Bridge Co. v. Olmsted 179, 

182, 185 
Tuttle V. Strout 179 

Twombly v. Henley 61 

Twitchell V. Commonwealth 25 

Tyler V. Beacher 616, 662, 669, 671 
V. People , 156, 205 



Tyler v. Tyler 64 

Tyeon v. School Directors 212, 269, 

281, 462, 608, 611 

Tyzee v. Commonwealth 395 



U. 

Uhrig V. St. Louis 630 

Ullery v. Commonwealth 881 

Underbill v. Welton 628, 629 

Underwood, Matter of 480 

V. Lilly 466, 470, 473 

V. McVeigh 605 

Union V. Durkees 264 

Union Bank v. Hill 603 

V. State 42 

Union Ins. Co. v. Hoge 84 

Union Iron Co. v. Pierce 114, 116, 477 

Union Pacific R. R. Co. v. United 

States 84 

Union R. R. Co. v. Traube 69 

United States v. Aredondo 16 

V. Barney 27 

V. Battiste 401 

V. Benner. 892 

I. Brown 204 

V. Callendar 416 

V. Cathcart 10 

V. Conway 354 

V. Coolidge 26 

V. Cox 385 

V. Cruiksbanks 2, 11, 14, 
21, S^, 366, 433, 
715 
V. Davenport 406 

V. DeVVitt 11, 715 

V. Fibber 68, 77 

V. Frertch 428 

I'. Gilmore 84 

V. Hamilton 381 

V. Harris 673 

V. Hoar. 456 

V. Hudson 26, 394, 536 
1^. Jailer of Fayette 427 
V. Jones 381 

V. Lancaster 27 

V. Little 392 

V. Lyon 636 

V. Mann 17 

V. Marigold 25 

V. Minn. &c. li. R. 

Co. 699 

V. More 398 

V. Morris 401 

V. Morrison 17 

V. New Bedford 

Bridge 27, 394, 740 
V. Ortega 392 



TABLE OP CASES CITED. 



Ixix 



United States v. Palmer 172 


Van Rensselaer v. Read 




449 


V. Passmore 449, 477 


u., Snyder 


850, 


353, 


V. Percheman 15 






354 


V. Perez 406 


Van Slyke v. Ins. Co. 


109 


, 117 


V. Ragsdale 68 


Van Valkenburg v. Brovfn 


497 


, 763 


V. Railroad Bridge 


Van Wormer ». Albany 




730 


Co. 6/53 


Van Wyck v. Aspinwall 




643 


V. Railroad Co. 604 


Vanzant v. Waddell 437 


440, 


441, 


V. Rector 429 






492 


V. Reed 658 


Varich v. Smith 


204 


, 680 


V. Reese 13, 100, 715 


Vaughan v. Seade 




395 


». Riley 401, 404 


, Veazie v. China 




90 


V. Samperyac 448 


». Mayo 


719 


, 724 


V. Tobacco Factory 15 


V. Moore 




738 


V. Tyner 450, 477 


Veazie Bank v. Fenno 


601 


, 604 


V. Union Pacific R. 


Veeder v. Lima 


238 


, 270 


R. Co. 172 


Venard v. Cross 




668 


V. Wilson 27 


Venice v. Murdock 




269 


United States Bank v. Daniel 17 


Verner v. Carson 




68 


V. Halstead 83 


Vicksburg u. Lombard 




269 


v. Norton 15 


Victory, The 




16 


V. Planters' 


Vidal V. Girard's Executors 




689 


Bank 308 


Vilas V. Milwaukee, &e. II. R. Co. 


706 


Universalist Society v. Providence 641 


Vincennes v. Richards 




677 


University of N. C. v. Foy 335 


Vincennes University v. Indiana 


83, 


Updegraph v. Commonwealth 590, 692 






340 


Upshaw, Ex parte 179, 181 


Vincent v. Nantucket 


267 


259 


Upton B. South Reading Branch 


ViolettB Violett 




484 


R. R. 710 


Vischer v. Vischer 


502 


504 


Usher V. Colchester 281 


Vise V. Hamilton Co. 




412 


V. Severance 660, 561 


Voglesong V. State 


695 


734 


Utley V. Campbell 529 


Voorhies, Matter of 




21 


V. 


Vose V. Morton 




601 


Van Allen i>. Assessors 602 


W. 






Van Alstyne v. Indiana P. & C. 


Wabash, &c. Co. v. Beers 




335 


R. R. Co.. 61 


Wade ». Richmond 




232 


Van Ankin ». Westfall 629 


V. State 




893 


Van Arsdale v. Laverty 542 


Wadleigh v. Gilman 




747 


Van Baurabach v. Bade 349, 350 


Wads\yorth's Adm'r v. Smith 




736 


Van Bokclen v. Brooklyn City 


Wager u. Troy Union R. R. 


Co. 


684, 


R. R. Co. 17 






687 


Van Bokkelin v. IngersoU 61 


Wagijer v. Bissell 




31 


Van Camp u. Board of Education 494 


Wagoman v. Byers 




528 


Vance v. Little Rook 237 


Wali'ott V. Wigton 




95 


Vanderbilt v. Adams 345, 731, 747 


Waldo «. Port and 




277. 


Vanderzee v. McGregor 642, 543 


Waldron v. Rensselaer, &c. R. R. 




Van Hagan, Ex parte 430 


Co. 


718, 


723 


Van Hoffman v. Quincy 368 


Wales «. Lyon 




68 


Van Home v. Dorrance 205 


V. Stetson 


340, 


496 


Van Inwagen v. Chicago 450 


D. Wales 




351 


Van Kleek v. Eggleston 68 


Walker v. Caldwell _ 


173, 


185 


Van Ness o. Hamilton 629 


V. Cincinnati. 64 


88, 


108, 


V. Pacard 27, 31 


145, 156, 


204, 


208 


Van Pelt v. Davenport 254, 311 


V. Dunham 




176 


Van Rensselaer w. Ball 351, 448 


V. Harbor Commissioners 


17 


V. Hays 351, 448 


II. Peelle 




337 


V. Kearney 17 


. V. Sauvinet 


13, 25 



Ixx 



TABLE 01" CASES CITED. 



"Walker v. State 179, 416 

V. Taylor , 16 

- B. Villavaso 16 

V. Whitehead 364, 855 

Wall, £a; parte 101,142,147,151 

V. State 153 

V. Trumbull 609, 611 

Wallace, In re 416 

V. Shelton 622, 637 

AVally's Heirs v. Kennedy 437, 492 

Walpole V. Elliott 210, 479 

Walschlager v. Liberty 274 

Walston J). Commonwealth 332 

Walter v. Bacon 463 

.,. People 332 

Waltham v. Kemper 303, 304 

Walther v. Warner 700, 703 

Walton V. Beveling ~ 760 

V. Greenwood 142 

Walton's Lessee v. Bailey 470 

Waltz V. Waltz 603 

Wamesit Power Co. v. Allen 658 

Wammack v. HoUoway 786 

Wantlan v. White 469 

Wanzer v. Howland 511 

Ward V. Brainerd 449 

V. Flood 490 

V. Maryland 20, 21, 603, 604, 

606, 607 

V. Morris 607 

V. New England, &c. Co. 126 

V. State 388 

V. Warner 736 

Wardlaw v. Buzzard 455 

Ware v. Hylton 8, 15 

V. Little 649 

Warickshall's Case 388 

Waring v. Jackson 17 

Warner v. Grand Haven 037 

V. Paine 652, 656 

V. People 79, 336 

V. Scott 68 

V. State 401 

V. Trow 159 

Warren v. Charlestown 215, 217 

u. Commonwealth 332 

V. Glynn 612 

V. Henley 633, 636, 639 

V. Lyons City 292 

V. McCarthy 22 

V. Paul 603 

V. Sherman 71 

V. State 401 

V. St. Paul, &c. R. R. Co. 663, 

673 

Warren Manuf. Co. v. JEtna Ins. Co. 21 

Wartman v. Philadelphia 750 

Warwick v. Underwood 69 

Washburn v. Cooke • 634 



Washburn v. Franklin 


450, 


469 


Washington v. Meigs 




748 


V. Murray 


98, 


183 


V. Nashville 


734, 


735 


V. Page 




84 



Washington.Avenue 608, 620, 622, 

632, 635 
Washington Bridge Co. v. State 719, 

721 

Washington Co. v. Berwick 277 

V. Franklin R. R. 

Co. 176 

Washington Ins, Co. w. Price 614,515, 

517 
Washington University v. Rouse 342 
Wasonw. -Walter 623,550,561, 

661 
Waters v. Leech 244 

Watertown v. Mayo , 730, 748, 749 
Watertown Bank, &c. s.'Mix 613 

WaterVille v. County Commission- 
ers 283, 286 
V. Kennebeck Co. . 234 
Water Works Co. v. Burkhart 185, 652, 
671, 673, 690, 699 
Watkins, Ex parte 430, 431 
V. Haight 461 
V. Holman's Lessee 125 
V. Walker Co. 655 
Watson V. Avery 581 
V. Farris 682 
V. Jones 581, 682 
V. McCarthy 529 
V. Mercer 325, 469. 470, 476 
V. New York Cent. R. R. 

Co. 351j 362 

V. Thurber 75 

Watts V. Greenlee , 530 

V. State 383 

Way I). Lewis 58 

V. Way 72 

Wayman v. Southard 110 

Weaver v. Cherry 260 

V. Lapsley 99, 116, 179, 182 

Webbw. Baird 412,494 

V. Den 467, 458 

Weber v. Donnelly 728 

V. Harbor Commissioners. 653 

V. Morris 69 

B.Reinhard 204, 631 

Webster v. French 94 

V. Harwinton 229, 231. 274 

V. Reid 507, 509 

V. Rose 358 

Webster, Professor, Trial of 403 

Wecherley v. Guyer 777 

Weckler v. Chicago 699 

Weed V. Donovan 463 

V. Foster 630 



TABLE OB" CASES CITED. 



Ixxi 



Weeks v. Milwaukee 232, 478, 614, 
622, 627, 633, 637, 641, 645, 748 
Weet V. Brockport 304, 305 

Wegmann v. Jefferson 252, 254 

Weightman v. Washington 254, 303, 

304 

Weiraer ». Bunbury 205 

Weir V. Cram 216 

Weise v. Smith 736, 737 

Weisraer ». Douglas 266, 610 

Weiss V. Whittemore 629 

Weister v. Hade 11, 210, 221, 278, 

279, 465, 476, 599 

Welborn v. Aikin 355 

Welch V. Stowell 728 

V. Sykes 23 

V. Wadsworth 359, 450, 464, 

469 

Welker v. Potter 156 

Wellington. Petitioner 200, 215, 220 

Wells V. Bain 39, 41 

V. Burbank 647 

V. McClenning 69 

». Scott 512 

V. Somerset, &c. R. R. Co. 655 

V. Weston 479 

Welman, In re 190 

Wendel v. Durbin 93 

Wenzler ». People 178 

West V. Bancroft 692 

V. Sansom 354 

Wesl Branch, t&c. Canal Co. v, 

Mulliner 677 

Westbrook v. Bearing 168 

Western College v. Cleveland 264, 

308 
Western Fund Savings Society v. 

Philadelphia 309 

Western Union Telegraph Co. v, 

Mayer 599 

Westervelt v. Gregg 440, 447, 448, 

449 

V. Lewis 23 

Westfall ». Preston 649 

Weston V. Charleston 24, 601, 602 

. V. Foster 697 

West River Bridge Co. v. Dix 343, 

656 
West Virginia Trans. Co. v. Vol- 
canic Oil Co. 658,660,666 
West Wisconsin R. Co. v. Super- 
visor of Trempeleau Co. 342 
Wetherell v. Stillman 23 
Weymouth & Braintree Fire ComVs 

V. County Com'rs 232, 234, 293 

Whalin v. Macomb 94 

Wheat V. Ragsdale 789 

Wheaton v. Peters 27, 31 

Wheeler v. Chicago 92 



Wheeler v. Chubbuck 190, 191 

V. Cincinnati 254 

V. Patterson 777 
V. Rochester, &c. R. R. 

Co. 698 

V. Shields 667 

V. Spencer 774 

V. State 178, 396 

V. Wall 206 

Wheeling Bridge Case} 737, 740 

Wheelock v. Young 655 

Wheclock's Election Case 779 

Whipley v. McCune 779 

Whipple V. Farrar 448 

Whitcomb's Case 394 

White, Ex parte ^2 

». Buchanan 499, 500 

V. Carroll 652 

V. Charleston 665 

e. Clark 662 

V. Com'rs of Norfolk Co. 711 

V. Flynn 459 

V. Hart 42, 350 

V. Kendrick 440 

V. Kent 749 

V. The Mayor 244 

V. Nashville, &c. R. R. Co. 700 

». Nichols . 633 

V. Scott 199 

». Stamford 207, 260 

V. Tallman 249 

i>. White 134, 465, 662 

V. Yazoo City 262 

V. Zane 76 

Whitebread v. The Queen 408 

Whited V. Lewis 179 

Whitehouse v. Androscoggin R. R. 

Co. 712 

Whitehurst ». Cohen 605 

V. Rogers 58 

Whiteley v. Adams 533 

Whiteman's Ex'rs ». Wilmington, 

&c. R. R. Co. 672 
White Mountains R. R. Co. v. 
White Mountains R. R. Co. of 
N. H. 473 
While River Turnpike Co. v. Cen- 
tral R. R. Co. 656, 672 
AVhite School House v. Post 448 
Whitfield ». Longest 734 
Whiting V. Barney 413 
V. Earle 420 
V. Mt. Pleasant 176 
Whitley v. State 393 
Whitman v. Boston, &c. R. R. Co. 711 
V. Hapgood 461 
Whitney v. Allen 642 
V. Richardson 486 
». Stow 233 



Ixxii 



TABLE OF CASES CITED. 



Whitson 0. Franklin 
Whittaker v. Johnson Co. 
Wliittemore ti^ Weiss 
Whittier v. Wendall 
Whittingham v. Bowen 
Whittington v. Polk 



722 

68 

679 

22 

662 

67, 194, 

205 

Whyte V. Nashville ~ 250 

Wick V. The Samuel Strong 1 7 

Wider v. East St. Louis 287 

Wier V. St. Paul, &c. R. R. Co. 652 

Wilbraham v. Ludlow 755 

Wilby V. Elston 629 

Wilcox V. Deer Lodge Co. 287 

V. Jackson 17 

V. Kassick 23, 509 

V. Wilcox • 503 

Wild V. Deig 662 

Wilder v. Case 69 

V. Maine Cent. R. R. Co. 722 

Wildes V. Van Voorhies 446 

Wildeyu. Collier 166 

Wiley V. Flournoy 93 

V. Parmer 606 

Wilkes V. Wood 376 

Wilkes's Case 368 

Wilkins v. Miller 178 

Wilkinson v. Cheatham ' 480, 481 

V. Leland 112, 125, 128, 

201, 212 

Willar V. Baltimore 460 

Willard v. Harvey 462 

B. Killingworth 231, 246 

V. Longstreet 356 

V. People 216, 218 

V. Presbury 632 

Willcox V. Kassick 23, 609 

Willey ». Belfast 311 

Williams v. Augusta 748 

V. Bank of Michigan S3 

V. Bidleman 156 

V. Bryant 630 

V. Commonwealth 385, 404 

V. Davidson 236, 237 

V. Detroit 100, 205, 620, 

621, 632, 636 

V. Haines 361 

V. Hill 630 

V. Johnson 462 

V. Kirkland 17 

V. Natural Bridge Plank 

R. Co. ■ 683 

V. N. Y. Central R. R. 

Co. ■ 684, 696 

». Newport 336, 337 

V. Norris ■ 16 

V. Oliver 16 

V. Payson 179, 216 

V. People 178 



Williams v. School District 


94, 


610, 




642 


665 


V. State 




179 


V. Stein 




762 


V. Wickerman 




661 


Williamson v. Carlton 




20O 


V. Suydam 




123 


V. Williamson 




125 


Willis V. Owen 


65 


142 


Williston V. Colkett 




463 



Wilmington R. R. Co. v. Reid 342 
Wilson B. Blackbird Creek Marsh 

Co. 606, 664, 672, 737, 

740 

V. Collins 652 

V. Crockett 661 

V. Fitch 561 

V. Franklin 661 

V. Hardesty 469 

V. Jackson 22 

V. McKenna 451, 459 

V. New York 641, 677 

c. Noonan 579 

V. Ohio, &c. R. R. Co. 325 

V. People 408 

V. Rockford, &c. R. R. Co. 711 

V. Runyan 529 

V. Siraonton 513 

V. State 417 

V. Supervisors of Sutter 640 

Wilson's Case . 426 

Winbi'gler v. Los Angelos 311 

Winchell v. State 393 

AVinchester v. Ayres 601 

Windham v. Portland 233 

Wingate v. Sluder 699 

Winona, &c. R. R. Co. ». Denman 711 

V. Waldron 709, 

722 

Winsor «. The^ Queen 405 

Winslow, Ex parte 430 

V. Grindall 68 

Winter i>. Jones 848 

Wires v. Farr 454 

Wirth V. Wilmington 242 

Wisconsin River Turnp. Co. v. 

Lyons 34 

Wisners B. Monroe 179 

Witham v. Osborn 662 

Withers v. State 416 

Withington b. Corey 486 

Witmer v. Schlatter 58 

Witt V. State 393 

Woart B. Winnick 325, 326, 464, 462 
Wolcott V. People 606 

V. Rickey 420 

V. Wigton 71 

Woleott Manuf. Co. b. Uphaiji 667 
Wolfe B. Covington, &c. R. R. Co. 684 



TABLE OF CASES CITED. 



Ixxiii 



Wood V. Brooklyn 




242 


Wright V. Oakley 






454 


V. Fort 




190 


V. State 




404 


405 


V. Kennedy 




469 


V. Woodgate 






633 


V. McCann 


167, 


169 


V. Wright 






186 


V. Randall 




512 


Wroth V. Johnson 






774 


V. Stephen 




61 


Wyatt ». Buell 






652 


V. Watkinson 




22 


Wynne, In re 






190 


Wood's Appeal 




41 


Wynehanier v. People 


109, 


204, 


207, 


Woodbridge v. Detroit 621 


633, 


699, 
736 
740 


:i09, 439, 441, 453, 716 


727 


,728 


,730 


Woodburn v. Manuf. Co. 


34, 










Woodbury v. Grimes 




351 


Y. 








V. Thompson 


529, 


630 




• 






WoodcoA V. Bennett 




438 


Yale, Ex parte 






322 


Woodfall's Case 




672 


Yancy v. Yancy 




205 


464 


Woodfolk V. Nashville R. R. 


Co. 


711 


Yates V. Lansing 






394 


Woodhull V. Wagner 




360 


V. Milwaukee 






680 


Woodlawn Cemetery v. Everett 


748 


V. People 






877 


Woodruff V. Fisher 




636 


V. Yates 






603 


V. Neal 




681 


Yeaker v. Yeaker 






16 


V. Parham 




605 


Yeatman v.' Crandell 


622, 


637 


741 


V. Scruggs 


450 


469 


Yeazel v. Alexander 






748 


V. Trapnall 


19 


348 


York V. Pease 






553 


Woodson V. Murdock 


103, 


176 


Yost V. Stout 






661 


Woodward v. Landor 


642 


543 


Yost's Report 






463 


V. Worcester 




311 


Young V. Beardsley 






460 


Woodworth v. Spring 




607 


V. Black 






58 


V. Tremere 




22 


V. Commissioners 


, &c 




303 


Woolsey V. Commercial Bank 


227 


V. Harrison 






699 


Worcester v. Norwich, &c. 


R. B. 




i;. McKenzie 






662 


Co. 




340 


V. Miller 






628 


Work V. State 


396 


,500 


V. State Bank 






116 


Worih V. Butler 




630 


Youngblood v. Sexton 


231 


284 


729 


Worthy V. Commissioners 




16 










Wray, JSx parte 




381 


z. 








V. Pittsburg 


621 


632 










Wreford v. The People 


246 


248 


Zabriske o. R. R. Co. 




145 


,270 


Wright V. Boston 


631 


637 


Zanesviile v. Auditor of Muskingum 


643 


V. Carter 




683 


Zeiler v. Chapman 






758 


V. Chicago 




621 


Zersweiss v. James 






690 


V. Cradlebaugh 




459 


Zimmermann v. Union Canal Co. 


676, 


V. DeFrees 


226 


227 






738 


,740 


V. Dunham 




458 


Zitske V. Goldberg 






233 


V. Hawkins 


450 


472 


Zottnjan v. San Francisco 




259 


V. Le Claire 




68 


Zumhoffi). State 






727 


V. Lindsay 




528 


Zylstra's Case 






440 



CONSTITUTIONAL LIMITATIONS. 



CONSTITUTIONAL LIMITATIONS. 



CHAPTER I. 



DEFINITIONS. 



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

In American constitutional law the word State is applied to the 
several members of the American Union, while the word nation 
is applied to the whole body of the people embraced within the 
jurisdiction of the federal government. 

Sovereignty, as applied to States, imports the supreme, absolute, 
uncontrollable power by which any State is governed.* A State 
is called a sovereign State when this supreme power resides within 
itself, whether resting in a single individual, or in a number of 

1 Vattel, b. 1, 0. 1, § 1; Story on tion!;. Georgia, 5 Pet. 52; Chase., Ch. 

Const. § 207; Wheat. Int. Law, pt. J., in Texas v. White, 7 Wall. 720; 

1, c. 2, § 2; Halleck, Int. Law, 63; Y&ttel, supra. 

Bouv. Law Diet. " State." " A mul- ' Story on Const. § 207; 1 Black, 

titude of people united together by a Com. 49 ; Wheat. Int. Law, pt. 1, c. 

communion of interest, and by com- 2, § 5 ; Halleck, Int. Law, 63, 64 ; 

mon laws, to which they submit with Austin, Province of Jurisprudence, 

one accord." Burlamaqui, Politic Leo. VI.; Chipman on Government, 

Law, c. 5. See Chisholm ». Georgia, 137. " The right of commanding 

2 Dall. 457 ; Georgia v. Stanton, 6 finally in civil society." Burlamaqui, 

Wall. 65. Politic Law, c. 5. 

" Thompson, J., in Cherokee Na- 

1 



2 CONSTITUTIONAL LIMITATIONS. [CH. I. 

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

international law, all sovereign States are and must be 

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

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

respect to it, any political superior. 

The sovereignty of a State commonly extends to all the sub- 
jects of government within the territorial limits occupied by the 
associated people who compose it; and, except upon the high 
seas, which belong equally to all men, like the air, and no part of 
which can rightfully be appropriated by any nation,^ 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, iabsolute, 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 vregulation which are not sovereign powers, inasmuch 
as they are liable to be controlled, or for the time being to become 
altogether dormant by the exercise of a superior power vested in 
the general government in respect to the same subjects. 

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

^ Vattel, b. 1, c. 1, § 2; Story on appropriated to the United States is 

Const. § 207 ; Halleck, Int. Law, 65. as far beyond the reach of the judicial 

In other words, when it is an inde- process issued by a Stat'' judge or a 

pendent State. Chipman on Govern- State court, as if the line of division 

ment, 137. was traced by landmarks and monu- 

" Vattel, b. 1,0. 23, §281; AVheat. ments visible to the eye." Taney, 

Int. Law, pt. 2, c 4, § 10. Ch. J., in Ableman«. Booth, 21 How. 

' McLean, J., in License Cases, 5 516. See Tarble's Case, 13 Wall. 

How. 588. " The powers of the gen- 406. That the general division of 

eral government and of the State, powers between the federal and State 

although both exist and are exercised governments has not been disturbed 

within the same territorial limits, are by thenew amendments to the federal 

yet separate and distinct sovereignties, Constitution, see United States v. 

acting separately and independently Cruikshanks, 92 U. S. Rep. 542. 
of each other, within their respective ■• 1 Bouv. Inst. 9; Duer, Const, 

spheres. And the sphere of action Jm'is. 26. " By the constitution of 



CH. I.] DEFINITIONS. 3 

equally complete and accurate definition would be, that body of 
rules and maxims in accordance with which the powers of sover- 
eignty are habitually exercised. 

In a much qualified and very imperfect sense every State may 
be said to possess a constitution ; that is to say, some leading 
principle has prevailed in the administration of its government, 
until it has become an understood part of its system, to 
which obedience * is expected and habitually yielded ; [* 3] 
like the hereditary principle in most monarchies, and the 
custom of choosing the chieftain by the body of the people which 
prevails among some barbarous tribes. But the term constitu- 
tional government is applied only to those whose fundamental rules 
or maxims not only locate the sovei-eign power in individuals or 
bodies designated or chosen in some prescribed manner, but also 
define the limits of its exercise so as to protect individual rights, 
and shield them against the assumption of arbitrary power.^ The 
number of these is not great, and the protection they afford to 
individual rights is far from being uniform.^ 

In American constitutional law, the word constitution is used 
in a restricted sense, as implying the written instrument agreed 
upon by the people of the Union, or of any one of the States, as 
the 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 sueh department or officer, or even of the people 
themselves, will be altogether void. 

a State I mean the body of those he will observe its proviaons, and 

■written or unwritten fundamental conduct the government accordingly, 

laws which regulate the most impor- The mere grant of a constitution does 

tant rights of the higher magistrates not make the government a constitu- 

and the most essential privileges of the tional government, until the monarch 

subjects." Mackintosh on the Study is deprived of power to set it aside at 

of the Law of Nature and Nations. will. The grant of Magna Charta 

1 Calhoun's Disquisition on Gov- did not make the English a constitu- 

ernment, Works, I. p. 11. tional monarchy; it was only after 

^ Absolute monarchs, under a repeated violations and confirmations 
pressure of necessity, or to win the of that instrument, and when a fur- 
favor of their people, sometimes grant ther disregard of its provisions had 
them what is called a constitution; become dangerous to the Crown, that 
but this, so long as the power of the fundamental rights could be said to 
monarch is recognized as supreme, have constitutional guaranties, and 
can be no more than his promise that the government to be constitutional. 



4 CONSTITUTIONAL LIMITATIONS. [CH. T. 

The term unconstitutional law must vary in its meaning in dif- 
ferent States, according as the powers of sovereignty are or are 
not possessed by the individual or body which exercises the pow- 
ers of ordinary legislation. Where the law-making department 
of a State is restricted in its powers by a written fundamental 
law, as in the American States, we understand by unconstitu- 
tional law one which, being opposed to the fundamental law, is 
therefore in excess of legislative authority, and void. Indeed, 
the term unconstitutional law, as employed in American jurispru- 
dence, is a misnomer, and implies a contradiction ; that enactment 
which is opposed to the constitution being in fact no law at all. 
But where, by the theory of the government, the exercise of 
complete sovereignty is vested in the same individual or body 
which enacts the ordinary laws, any law, being an exercise of 
power by the sovereign authority, must be obligatory, and, if it 
varies from or conflicts with any existing constitutional principle, 
must have the effect to modify or abrogate such principle, instead 
of being nullified by it. This must be so in Great Britain with 
every law not in harmony with pre-existing constitutional princi- 
ples ; since, by the theory of its government. Parliament exercises 

sovereign authotity, and may even change the Constitu- 
[* 4] tion * at any time, as in many instances it has done, by 

declaring its will to that effect.^ And when thus the' 
power to control and modify the constitution resides in the ordi- 
nary law-making power of the Stale, the term unconstitutional law 
can mean no more than this : a law which, being opposed to the 
settled maxims upon which the government has habitually been 
conducted, ought not to be, or to have been, adopted.^ It follows, 
therefore, that in Great Britain constitutional questions are for the 
most part to be discussed before the people or the Parliament, 
since the declared will of the Parliament is the final law ; but in 
America, after a constitutional question has been passed upon, 
by the legislature, there is generally a right of appeal to the 
courts when it is attempted to put the will of the legislature in 

1 1 Black. Com. 161 ; De Tocque- illustrations to show that in England, 
ville, Democracy in America, c. 6; and indeed under most governments, 
Broom, Const. Law, 795. a rule prescribed by the law-making 

2 Mr. Austin, in his Province of authority may be unconstitutional; 
Jurisprudence, Lee. VI., explains and and yet legal and obligatory, 
enlarges upon this idea, and gives 



CH. I.] DBPESriTIONS. S 

force. For the will of the people, as declared in the Constitu- 
tion, is the final law ; and the will of the legislature is only law 
when it is in harmony with, or at least is not opposed to, that 
controlling instrument which governs the legislative body equally 
with the private citizen.^ 

1 See Chapter VII. post. 



OONSTITtTTIONAIi LIMITATIONS. [CH. H. 



[*5] * CHAPTER 11. 

THE CONSTITUTION OF THE UNITED STATES. 

The government of the United States is the existing repre- 
sentative of the national government which has always in some 
form existed over the American States. Before the Revolution, 
the powers of government, which were exercised over all the 
colonies in common, were so exercised as pertaining either to the 
Crown of Great Britain or to the Parliament; but the extent of 
those powers, and how far vested in the Crown and how far in 
the Parliament, were questions never definitely settled, and which 
constituted subjects of dispute between the mother country and 
the people of the colonies, finally resulting in hostilities.^ That 
the power over peace and war, the general direction of commer- 
cial intercourse with other nations, and the general control of 
such subjects as fall within the province of international law, 
were vested in the home government, and that the colonies were 
not, therefore, sovereign States in the full and proper sense of 
that term, were propositions never seriously disputed in America, 
and indeed were often formally conceded; and the disputes 
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 circumstances of 
danger threatened them ; and this tendency led to the New Eng- 
land Confederacy of 1643, to the temporary Congress of 1690, to 
the plan of union agreed upon in Convention of 1764, but rejected 
by the Colonies as well as the Crown, to the Stamp Act Con- 

1 1 Pitkin's Hist. U. S. c. 6; Life of 1765; Ramsay's Revolution in 

and Works of John Adams, Vol. I. South Carolina, pp. 6-11; 5 Ban- 

pp. 122, 161; Vol. II. p. 311; Works, croft's U. S. c. 18; 1 Webster's 

of Jefferson, Vol. IX. p. 294; 2 Works, 128; Von Hoist, Const. Hist. 

Marshall's Washington, c. 2; Deola- c. 1; Story on Const. § 183 et seq. 
ration of Rights by Colonial Congress 



CH. n.] THE CONSTITUTION OF THE UNITED STATES. 



gress of 1765, and finally to the Continental Congress of 1774. 
When the difiBculties with Great Britain culminated in actual 
war, the Congress of 1775 assumed to itself those powers of 
external control which before had been conceded to the 
Crown or to the * Parliametit, together with such other [* 6] 
powers pf 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 in their individual character, but that they were 
always, in respect to the higher powers of sovereignty, subject to 
the control of a central authority, and were never separately 
known as members of the family of nations.^ The Declaration 



' " All the country nbw possessed 
by the United States was [prior to the 
Revolution] a part of the dominions 
appertaining to the Crown of Great 
Britain. Every acre of land in this 
country was then held, mediately or 
immediately, by grants from that 
Crown. All the people of this country 
were then subjects of the King of 
Great Britain, and owed allegiance to 
him ; and all the civil authority thei^ 
existing or exercised here flowed from 
the head of the British empire. They 
were in a strict sense fellow-subjects, 
and in a variety of respects one peo- 
ple. When the Revolution com- 
menced, the patriots did not assert 
that only the same aflSnity and social 
connection subsisted between the peo- 
ple of the colonies, which subsisted 
between the people of Gaul, Britain, 
and Spain while Roman provinces, 
namely, only that affinity and social 
connection which result from the mere 
circumstance of. being governed by 
one prince ; different ideas, prevailed, 
and gave occasion to the Congress of 
1774 and 1775. 

"The Revolution, or rather the 
Declaration of Independence, f&und 
the people already united for general 



purposes, and at the same time pro- 
viding for their more domestic con- 
cerns by State conventions and other 
temporary arrangements. 'Froin the 
Crown of Great Britain the sover- 
eignty of their country passed to the 
people of it ; and it was not then an 
uncommon opinion that the unappro- 
priated lands which belonged to the 
Crown passed, not to the people of 
the colony or State within whose 
limits they were situated, but to the 
whole people. On whatever princi- 
ples this opinion rested, it did not give 
way to the other, and thirteen sover- 
eignties were considered as emerged 
from the principles of the Revolution, 
can:di>ined with local convenience and 
considerations; the people, neverthe- 
less, continued to consider themselves, 
in a national point of view,, as one 
people; and they continued without 
interruption to manage their national 
concerns accordingly. Afterwards, 
in the hurry of the war, and in the 
warmth of mutual confidence, they 
made a confederation of the States 
the basis of a general government. 
Experience disappointed the expecta- 
tions they had formed from it; and 
then the people, in their colleotive 



8 CONSTITUTIONAL LIMITATIONS. [CH. XL. 

of Independence made them sovereign and independent States, 
by altogether abolishing the foreign jurisdiction, and substituting 
a national government of their own creation. 

But while national powers were assumed by and con- 
[* 7] ceded to * the Congress of 1775-76, that body was never- 
theless strictly revolutionary in its character, and, like all 
revolutionary bodies, its authority was undefined, and could be 
limited only, first, by instructions to individual delegates .by the 
States choosing them ; second, 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 national 
government became speedily apparent, and led to, the adoption of 
the Articles of Confederation. But those articles did not concede 
the full measure of power 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 inserted 
[* 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 conventions of 
delegates chosen by the people in eleven of the States, before the 
new government was organized under it ; and the remaining two, 

capacity, established the present Con- c. 1, presents the same view clearly 

stitution." Per Jay, Ch. J., in Chis- and fully. 

holm ». Georgia, 2 Dall. 470. See this i See remarks of Iredell, J., in 

point forcibly put and elaborated by Penhallow v. Doane's Adm'r, 3 Dall. 

Mr. A. J. Dallas, in his Life and 91, and of SteV, J., in the same case, 

Writings, by G. M. Dallas, 200-207. p. 111. The true doctrine on this 

Also in Texas v. White, 7 Wall. 724. subject is very clearly explained by 

Professor Von HoLst, in his Constitu- Chase, J., in Ware v. Hylton, 3 Dall. 

tional History of the United States, 231. 



CH. II.] THE CONSTITUTION OP THE UNITED STATES. 9 

North Carolina and Rhode Island, by their refusal to accept, and 
by the action of the others in proceeding separately, were ex- 
cluded altogether from that national jurisdiction which before 
had embraced them. This exclusion was not warranted by any 
thing contained in the Articles of Confederation, which purported 
to be articles of " perpetual union ; " and the action of the eleven 
States in making radical revision of the Constitution, and exclud- 
ing their associates for refusal to assent, was really revolutionary 
in character,^ 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 experir 
ence, of a more efficient general government.^ 



^ Mr. Van Buren has said of it 
that it was " an heroic, though per- 
haps a lawless act. " Political Parties, 
p. 50. 

^ " Two questions of a very delicate 
nature present themselves on this oc- 
casion : 1. On what principle the con- 
federation, which stands in the form 
of a solemn compact among the 
States, can be superseded without the 
unanimous consent of the parties to 
it; 2. What relation is to subsist 
between the nine or more States, rat- 
ifying the Constitution, and the re- 
maining few who do not become 
parties to it. The first question is 
answered at once by recurring to the 
absolute necessity of ■ the case ; to 
the great principle of self-preserva- 
tion ; to the transcendent law of 
nature and of nature's God, which 
declares that the safety and happi- 
ness of society are the objects at 
which all political institutions aim, 
and to which all such institutions 
must be sacrificed. Perhaps, also, an 
answer may be found without search- 
ing beyond the principles of the com- 
pact itself. It has been heretofore 
noted, among the defects of the con- 
federation, that in many of the States 
it had received no higher sanction 
than a mere legislative ratification. 
The principle of reciprocality seems 
to require that its obligation on the 



other States should be reduced to the 
same standard. A compact between 
independent sovereigns, founded on 
acts of legislative authority, can pre- 
tend to no higher validity than a 
league or treaty between the parties. 
It is an established doctrine on the 
subject of treaties, that all of the 
articles are mutually conditions of 
each other; that a breach of any one 
article is a breach of the whole 
treaty; and that a breach committed 
by either of the parties absolves the 
others, and authorizes them, if they 
please, to pronounce the compact vio- 
lated and void. Should it unhappily 
be necessary to appeal to these deli- 
cate truths for a justification for dis- 
pensing with the consent of particular 
States to a dissolution of the federal 
pact, will not the complaining parties 
find it a diificult task to answer the 
multiplied and important infractions 
with which they may be confronted? 
The time has been when it was in- 
cumbent on us all to veil the ideas 
which this paragraph exhibits. The 
scene is now changed, and with it the 
part which the same motives dictate. 
The second question is not less deli- 
cate, and the flattering prospect of its 
being merely hypothetical forbids an 
over-curious discussion of it. It is 
one of those cases which must be left 
to provide for itself. In general it 



10 CONSTITUTIONAL LIMITATIONS. [CH. II. 

[* 9] * Left at liberty now to assume complete powers of 

sovereignty as independent governments, these two States 
saw fit soon to resume their place in the American family, under 
a permission contained in the Constitution ; and new States have 
since been added from time to time, all of them, with a single 
exception, 'organized by the consent of the general government 
and embracing territory previously under its control. The ex- 
ception was Texas, which had previously been an independent 
sovereign State, but which, by the conjoint action of its govern-i 
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 allude to 
any abstract theories as to the precise position and actual power 
of the several States at the time of forming the present Constitu- 
tion,i it may be said of them generally that thiey have at all times 
been subject to some common national government, which has 
exercised control over the 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 
powers ; the national Constitution being the instrument which 
specifies them, and in which authority should be found for the 
exercise of any power which the national government assumes 

may be observed, that although no are past, and the anticipation of ,a 

political relation can subsist between speedy triumph over the obstacles to 

tke assenting and dissenting States, reunion, will, it is hoped, not urge in 

yet the moral relations will remain vain moderation on one side, and pru- 

uncancelled. The claims of justice, rfence on the other." Federalist, No. 

both on one side and on the other, 43 (by Madison). 
will be in force and must be fulfilled ; ^ See this subject discussed in Gib- 

the rights of humanity must in all bons v. Ogden, 9 Wheat. 1. 
cases be duly and mutually respected ; ^ Chase, Ch. J., in Texas v. White, 

whilst considerations of a common 7 Wall. 700, 725. See United States 

interest, and above all the remem- v. Cathcart, 1 Bond, 556. 
brance of the endearing scenes which 



CH. II.] THE CONSTITUTION OF THE UNITED STATES. 11 

to possess.^ In this respect it differs from the consti- 
tutions of the * several States, which are not grants-^ of [* 10] 
powers to the States, but which apportion and impose 
restrictions upon the powers which the States inherently possess. 
The general purpose of the Constitution of the United States is 
declared by its founders to be, "to form, a more perfect union, 
establish justice, insure domestic tranquillity, provide for the 
common defence, promote the general welfare, and secure the 
blessings of liberty to ourselves and our posterity." To accom- 
plish these purposes, the Congress is empowered by the eighth 
section of article one : — 

1. To lay and collect taxes, duties, imposts, and excises ; to 
pay the debts and provide for the common defence and general 
welfare 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. 

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

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

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

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

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

8. To promote the progress of science and the useful arts, by 

1 " The government of the United United States v. Cruikshanks, 92 
States can claim no powers which are U. S. Eep. 542, 550, 551, per Waite, 
notgranted to it by the Constitution; Ch. J.; Weister v. Hade, 52 Penn. 
and the powers actually granted must St. 477. The tenth amendment to 
be such as are expressly given, or the Constitution provides that "the 
given by necessary implication." powers not delegated to the United 
Fei Marshall, Ch. J.,, in Martin v. States by the Constitution, nor pro- 
Hunter's Lessee, 1 Wheat. 326. hibited by it to the States, are reserved 
' ' This instrument contains an enu- to the States respectively, or to the 
meration of the powers expressly people." No power is conferred by 
granted by the people to their gov- the Constitution upon Congress to 
ernment."' Marshall, Ch. J., in Gih- establish mere police regulations 
bons 0. Ogden, 9 Wheat. 187. See within the States. United States v. 
Calder v. Bull, 3 Dall. 386 ; Briscoe Dewitt, 9 Wall. 41. See Live Stock, 
V. Bank of Kentucky, 11 Pet. 257 ; &c. Association v. Crescent City, &e. 
Gilman v. Philadelphia, 3 Wall. 713 ; Co., 16 WaU. 36. 



12 CONSTITUTIONAI. LIMITATIONS. [CH. H. 

securing for limited terms to authors and inventors the exclusive 
right to their respective writings and discoveries. 

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

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

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

, 12. To provide and maintain a navy. 

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

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

the laws of the nation, suppress insurrections, and repel 
invasions. 

15. To provide for 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 authoiity of 
1 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 ces- 
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 ^all be, for the erection of 
forts, magazines, arsenals, dock-yards, and other needful buildings. 

17. To make all laws which shall be necessary and proper for 
carrying into execution 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 as a punishment for 
crime, throughout the United States and all places subject to 
thsir jurisdiction. The fourteenth amendment has several ob- 
jects. 1. It declares all persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, to be citizens of 



CH. n.] THE CONSTITUTION OF THE UNITED STATES. 13 

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 
to deprive any person of life, liberty, or property, without due 
process of law, or to deny to any person within its jurisdiction the 
equal protection of the laws. 2. It provides that when the right 
to vote at any election for the choice of electors for President or 
Vice-President of the United States, representatives in ■ Congress, 
the executive and judicial officers of a State, or the members of 
the legislature thereof, is denied to any of the male inhabitants 
of such State, being twenty-one years of age, and citizens of the 
United States, or is in any way abridged, except for participation 
in rebellion or other crime, the basis of congressional representa- 
tion therein shall be reduced in the proportion which the number 
of such male citizens shall bear to the whole number of male citi- 
zens twenty-one years of age in such State. 3. It disqualifies 
from holding Federal or State offices certain persons who shall 
have engaged in insurrection or rebellion against the United 
States, or given aid or comfort to the enemies thereof. 4. It 
declares the inviolability of the public debt of the United States, 
and forbids the United States or any State assuming or paying 
any debt or obligation incurred in aid of insurrection or rebellion 
against the United States, or any claim for the loss or emancipa^ 
tion of any slave. The fifteenth amendment declares that the 
right of citizens of the Uiiited States to vote shall not be denied 
or abridged by the United States or by any State, on account of 
race, color, or previous condition of servitude.^ 

1 See, as to these amendments, closing cattle intended for slaughter. 

Story on Const. (4th ed.) c. 46, 47, 48, within certain specified parishes: Live 

and App. to Vol. II. The new amend- Stoc^, &c. Association v. Crescent 

ments do not enlarge the privilege of City, &c. Co., 16 Wall. 36; nor by 

suffrage so as to entitle women to denying the right of jury trial in 

vote. Bradwell v. State, 16 Wall. State courts: Walker v. Sauvinet, 92 

130 ; Minor v. Happersett, 21 Wall. U. S. Kep. 90. Since these amend- 

162.' They do not entitle persons as ments, as before, sovereignty for the 

of right to sell intoxicating drinks protection of life and personal liberty 

against the prohibitions of State laws, within the respective States rests 

Barbemeyer ». Iowa, 18 Wall. 129. alone with the States, and the Ijiited 

They are not violated by the grant by States cannot take cognizance of inva- 

a State, under its police power, of an sions of the privilege of suffrage when 

exclusive right for a term of yeafs to race, color, or previous condition of 

have and maintain slaughter-houses, suffrage is not the ground thereof, 

landings for cattle, and* yards for in- United States v. Reese, 92 U. S. Rep, 



14 CONSTITTTTIONAIi LIMITATIONS. [CH. n. 

The executive power is vested in a president, who is made 
commander-in-chief of the army and navy, and of the militia of 
the several States when called into the service of the United 
States ; and who has power, by and with the consent of the Sen- 
ate, to make treaties, provided two-thirds of the Senate concur, 
and, with the same advice and consent, to appoint ambassadors 
and other public ministers and consuls, judges of the Supreme 
Court, and other officers oi the United States, whose appoint- 
ments 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, 
under 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 
[* 12] * State or citizens thereof and foreign States, citizens 
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 every State are to be bound thereby, 
any thing in the constitution or laws of any State to the con- 
trary notwithstanding.* 

214; United States v. Cruikshanks, Dodge v. Woolsey, 18 How. 331. 

92 U. S. Rep. 542. See, further, When a treaty has been ratified by 

Kennard v. Louisiana, 92 U. S. Rep. the proper formalities, it is, by the 

480; Railroad Co. v. Brown, 17 Wall. Constitution, the supreme law of the 

446. land, and the courts have no power 

^ U. S. Const, art. 2. to inquire into the authority of the 

2 U. S. Const, art. 3, § 2. persons by whom it was entered into 

' U. S. Const. 11th Amendment. on behalf of the foreign nation: Doe 

« U. S. Const, art. 6; Owings v. v. Braden, 16 How. 635, 657; or the 

Norwood's Lessee, 5 Cranoh, 848; powers or rights ^f cognized by it in 

McCullooh V. Maryland, 4 Wheat, the nation with v^ich it was made: 

316; Foster v. Neilson, 2 Pet. 253, Maiden w. Ingersqll, 6 Mich. 373. A 

314; Cook B. Moffat, 5 How. 295; State law in conflict with it must give 



CH. n.J THE CONSTITTJTION OF THE UNITED STATES. 15 

It is essential to the protection of the national jurisdiction, and 
to prevent collision between State and national authority, that 
the final decision upon all questions arising in regard thereto 
should rest with the courts of the Union ; ^ and as such questions 
must frequently arise first in the State courts, provision is made 
by the Judiciary Act 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 wWch is drawn in question the validity 
of a treaty, or statute of, or authorily 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 being 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 is claimed under the Constitution 
or any treaty or statute of or commission held or authority exer- 
cised under the United States, and the decision is against 
the * title, right, privilege, or immunity specially set up [* 13] 
or claimed by either party under such Constitution, treaty, 
statute, commission, or authority.^ 

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

way to its superior authority. Ware ». Norton, 3 Marsh. 423; Braynard v. 

V. Hylton, 3 Dall. 99; Yeaker v. Marshall, 8 Pick. 196, per Parker, 

Yeaker, 4 Met. (Ky.) 33; People v. Ch. J.; Spangler's Case, 11 Mich. 

Gerke, 5 Cal. 381. See, further, 298;, Tarble's Case, 13 Wall. 897. 
United States v. Aredondo, 6 Pet. " Acts 1789 and 1867; R. S. 1875, 

691; United States ». Percheman, 7 §709. 

Pet. 51; Garcia v. Lee, 12 Pet. 511; ' Owings v. Norwood's Lessee, 5 

Ropes V. Clinch, 8 Blatch. 304; United Cranch, 844; Martin v. Hunter's Les- 

States V. Tobacco Factory, 1 Dill, see, 1 Wheat. 304; Inglee v. Coolidge, 

261;The Cherokee Tobacco, 11 Wall. 2 Wheat. 363; Miller v. NichoUs, 4 

616. In this last case it is decided. Wheat. 811; WilUams v. Norris, 

as before it had been at the Circuit, 12 Wheat. 117 ; Hickie v. Starke, 1 

that a law of Congress repugnant to Pet. 98; Harris v. Dennie, 3 Pet. 292; 

a treaty, to that, extent abrogates it. Fisher's Lessee v. Cockerell, 5 Pet. 

1 Martin v. Hunter's Lessee, 1 256; New Orleans v. De Armas, 9 

Wheat. 304, 334; Cohens ». Virginia, Pet. 523, 234; Keene v. Clarke,. 10 

6 Wheat. 264; Bank of United States Pet. 291; Crowell v. Randell, 10 Pet. 



16 



CONSTITUTIONAL LIMITATIONS. 



[CH. IL 



the State court is in favor of the right, title, privilege, or exemp- 
tion so claimed, the Judiciary Act does not authorize such re- 
moval.^ Neither does it where the validity of the State law is 
drawn in question, and the decision of the State court is against 
its validity.^ 

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 no question of national 
authority is involved, and to accept those decisions as correct, 
and to follow them whenever the same questions arise in the' 
national courts.^ With the power to revise the decisions of the 



368; McKinny v. Carroll, 12 Pet. 66; 
Holmes v. Jennison, 14 Pet. 540; 
Scott V. Jones, 5 How. 343; Smith v. 
Hunter, 7 How. 738; Williams v. 
Oliver, 12 How. Ill; Calcote v. Stan- 
ton, 18 How. 243; Maxwell v. New- 
bold, 18 How. 511; Hoyt v. Shelden, 
1 Black, 518; Farney v. Towle, 1 
Black, 850; Day v. Gallup, 2 Wall. 
97; Walker v. Villavaso, 6 Wall. 124; 
The Victory, 6 Wall. 382 ; Hamilton 
Co. V. Mass., 6 Wall. 632; Gibson v. 
Choteau, 8 Wall. 314; Worthy v. 
Commissioners, 9 Wall. 611; Messen- 
ger V. Mason, 10 Wall. 507; Insur- 
ance Co. V. Treasurer, 11 Wall. 204; 
McManus 11. O' Sullivan, 91 U. S Rep. 
578 ; Boiling v. Lersner, 91 U. S. Rep. 
594. It is not sufficient that the pre- 
siding judge of the State court certifies 
that a right claimed under the national 
authority was brought in question. 
Railroad Co. v. Rock, 4 Wall. 177; 
Parmelee v. Lawrence, 11 Wall. 36. 

1 Gordon v. Caldcleugh, 3 Cranch, 
268; McDonough v. Millaudon, 3 
How. 693; Fulton v, MoAfEee, 16 Pet 
149; Liuton v. Stanton, 12 How. 423; 
Burke u. Gaines, 19 How. 388; Red- 
dall V. Bryan, 24 How. 420; Roose- 
velt V. Meyer, 1 Wall. 512; Ryan v. 
Thomas, 4 Wall. 603. 

2 Commonwealth Bank v. Griffith, 
14 Pet. 5&; Walker v. Taylor, 5 How. 



64. We take no notice here of the 
statutes for the removal of causes 
from the State to the Federal courts 
for the purposes of original trial, as 
they are not important to any discus- 
sion we shall have occasion to enter 
upon in this work. 

* In Beauregard v. New Orleans, 
18 How. 502, Mr. Justice Campbell 
says : " The constitution of this court 
requires it to follow the laws of the 
several States as rules of decision 
wherever they apply. And the habit 
of the court has been to defer to the 
decisions of their judicial tribunals 
upon questions arising out of the com- 
mon law of the State, especially when 
applied to the title of lands. ' ' In Bank 
of Hamilton v. Dudley's Lessee, 2 Pet.. 
524, it was contended that the exclu- 
sive power of State courts to construe 
legislative acts did not extend to the 
paramount law, so as to enable them 
to give efficacy to an act which was 
contrary to the State constitution ; but 
Marshall, Ch. J., said : " We cannot 
admit this distinction. The judicial 
department of every government is 
the rightful expositor of its laws, and 
emphatically of its supreme law." 
Again, in Elmendorf v. Taylor, 10 
Wheat. 159, the same eminent judge 
says : " The judicial department of 
every government, where such depart- 



CH. II.J THE CONSTITUTION OF THE UNITED STATES. 



17 



St^te * courts in the cases already pointed out, the due [* 14] 
observance of this rule will prevent those collisions of 



ment exists, is the appropriate organ 
for construing the legislative acts of 
that government. Thus no court in 
the universe whibh proposed to be gov- 
erned by principle would, we presume, 
undertake to say that the courts of 
Great Britain or France, or of any 
other nation, had misunderstood their 
own statutes, and therefore erect it- 
self into a tribunal which should correct 
such misunderstanding. We receive 
the construction given by the courts 
of the nation as the true sense of the 
law, and feel ourselves no more at lib- 
erty to depart from that construction 
than to depart from the words of the 
statute. On this principle, the con- 
struction given by this court to the 
Constitution and laws of the United 
States is received by all as the true 
construction; and on the same princi- 
ple the construction given by the courts 
of the several States to the legislative 
acts of those States is received as true, 
unless they come in conflict with the 
Constitution, laws, or treaties of the 
United States." And in Creen v. 
Neal's Lessee, 6 Pet. 298, it is said by 
McLean, J.; "The decision of the 
highest judicial tribunal of a State 
should be considered as final by 'this 
court, not because the State tribunal 
in such a case has any power to bind 
this court, but because, in the lan- 
guage of the court in Shelby v. Guy, 
11 Wheat. 361, a-fixed and received 
construction by a State, in its own 
courts, makes a part of the statute 
law." And see Jackson v. Chew, 12 
Wheat. 162, per Thompson, J. ; also 
the following cases : Sims v. Irvine," 
3 Dall. 425; McKeen v. Delancy, 5 
Cranch, 22 ; Polk's Lessee v. Wendal, 
9 Cranch, 87 ; Preston v. Browder, 1 
Wheat. 115; Mutual Assurance Co. v. 
Watts, 1 Wheat. 279 ; Shipp v. Miller, 
2 Wheat. 316 ; Thatcher v. Powell, 6 
Wheat. 119; Bell v. Morrison, 1 Pet. 



351; Waring v. Jackson, 1 Pet. 570; 
DeWolf V. Rabaud, 1 Pet. 476; Ful- 
lerton v. Bank of United States, 1 
Pet. 604; Gardner w. Collins, 2 Pet. 
58; Beach v. Viles, 2 Pet. 675; Inglis 
V. Sailors' Snug Harbor, 3 Pet. 99; 
United States ». Morrison, 4 Pet. 124 ; 
Henderson v. Griffin, 5 Pet. 151; 
Hinde v. Vattier, 5 Pet. 398; Boss v. 
McLung, 6 Pet. 283; Mariatt v. Silk, 
11 Pet. 1 ; Bank of United States v. 
Daniel, 12 Pet. 32 ; Clarke v. Smith, 
13 Pet. 195 ; Ross v. Duval, 13 Pet. 
45; Wilcox v. Jackson, 13 Pet. 498; 
Harpending v. Reformed Church, 16 
Pet. 445; Martin v. Waddell, 16 Pet. 
367 ; Amis u. Smith, 16 Pet. 303 ; Por- 
terfield ». Clark, 2 How. 76; Lane ». 
Vick, 3 How. 464; Foxcroft v. Mal- 
lett, 4 How. 353; Barry v. Mercein, 5 
How. 103 ; Rowan o. Runnells, 5 How. 
134; Van Rensselaer v. Kearney, 
11 How. 297; Pease v. Peck, 18 How. 
595 ; Fisher v. Haldeman, 20 How. 
186; Parker v. Kane, 22 How. 1; Suy- 
dam V. Williamson, 24 How. 42/ ; 
Sumner v. Hicks, 2 Black, 532; Chi- 
cago !). Robbins, 2 Black, 418; Miles 
». Caldwell, 2 Wall. 35 ; Williams v. 
Kirkland, 13 Wall. 306; Walker v. 
Harbor Com'rs, 17 Wall. 648; Super- 
visors V. United States, 18 Wall. 71; 
Springer b. Foster, 2 Story C.C. 383; 
Neal 0. Green, 1 McLean, 18 ; Paine 
V. Wright, 6 McLean, 395; Boyle v. 
Arledge, Hemp. 620 ; Grifling o. Gibb, 
McAU. 212 ; Bayerque w. Cohen, Mc All. 
113; Wick v. The Samuel Strong, 
Newb. 187; N. F. Screw Co. v. Bliveu, 
3 Blatch. 240 ; Bronson v. Wallace, 4 
Blatch. 465 ; Van Bokelen v. Brooklyn 
City R. R. Co., 5 Blatch. 379; United 
States V. Mann, 1 Gall. 5 ; Society, &c. 
V. Wheeler, 2 Gall. 105; Coates v. 
Muse, Brock. 539; Meade v. Beale, 
Taney, 339 ; Loring u. Marsh, 2 ClifE. 
311; Parker v. Phetteplace, 2 Cliff. 
70) King V. Wilson, 1 Dill. 555. In 



2 



18 



CONSTITUTIONAL LIMITATIONS. 



[CH. II. 



judicial authority which would otherwise be inevitable, 
[* 15] and whiuh, besides being unseemly, * would be danger- 
ous to the peace, harmony, and stability of the Union. 



Green v. Neal's Lessee, 6 Pet. 291, 
an important question was presented 
as to the proper course to be pursued 
by the Supreme Court of the United 
States, under somewhat embarrassing 
circumstances. That court had been 
called upon to put a construction upon 
a State statute of limitations, and had 
done so. Afterwards the same ques- 
tion had been before the Supreme 
Court of the State, and in repeated 
cases had been decided otherwise. The 
question now was whether the Su- 
preme Court would follow its own 
decision, or reverse that, in order to 
put itself in harmony with the State 
decisions. The subject is considered 
at length by McLean, J., who justly 
concludes that " adherence by the fed- 
eral to the exposition of the local law, 
as given by the courts of the State, 
will greatly tend to preserve harmony 
in the exercise of the judicial power 
in the State and federal tribunals. 
This rule is not only recommended by 
strong considerations of propriety, 
growing out of our system of juris- 
prudence, but it is sustained by 
principle and authority." The court 
accordingly reversed its rulings to 
make them conform to those of the 
State court. See also Suydam v. Wil- 
liamson, 24 How. 427 ; LefBngwell v. 
Warren, 2 Black, 599; Blossburg, &c. 
R. R. Co. V. Tioga R. R. Co., 5 Blatch. 
387; Smith v. Shriver, 3 Wall. Jr. 
219. It is of course immaterial that 
the court may still be of opinion that 
the State court has erred, or that 
the decisions elsewhere are diflerent. 
Bell V. Morrison, 1 Pet. 360. But 
where the Supreme Court had held 
that certain contracts for the price of 
slaves were not made void by the 
State constitution, and afterward the 
State court held otherwise, the Su- 
preme Court, regarding this decision 



wrong, declined to reverse their own 
ruling. Rowan v. Runnels, 5 How. 
134. Compare this with Nesmith v. 
Sheldon, 7 How. 812, in which the 
court followed, without examination 
or question, the State decision, that a 
State general banking law was in vio- 
lation of the constitution of the State. 
The United States Circuit Court had 
held otherwise previous to the State 
decision. Falconer v. Campbell, 2 
McLean, 195. 

This doctrine does not apply to 
questions not at all dependent upon 
local statutes or usages; as, for in- 
stance, to contracts and other instru- 
ments of a commercial and general 
nature, like bills of exchange: Swift 
V. Tyson, 16 Pet. 1; and insurance 
contracts : Robinson v. Common- 
wealth Ins Co., 3 Sum. 220. And 
see Reimsdyke v. Kane, 1 Gall. 376; 
Austen v. Miller, 5 McLean, 153; 
Gloucester Ins. Co. v. Younger, 2 Curt. 
C. C. 322; Bragg v. Meyer, McAll. 
408. And of course cases presenting 
questions of conflict with the Consti- 
tution of the United States cannot be 
within it. State Bank v. Knoup, 16 
How. 369 ; JefEerson Branch Bank v. 
Skelley, 1 Black, 436. And where a 
contract had been made under a set- 
tled construction of the State constitu- 
tion by its highest court, the Supreme 
Court sustained it, notwithstanding 
the State court had since overruled its 
former decision. Gelpecke «. Du- 
buque, 1 Wall. 176. See Olcott v. 
Supervisors, 16 Wall., 678. Of late it 
has seemed that new and doubtful 
grounds were being taken for disre- 
garding State decisions, and in several 
cases nearly one-half the members 
of the federal Supreme Court have 
deemed it necessary to protest against 
an abandonment of- the sound . and 
safe doctrine of the earlier decisions. 



CH. II.] THE CONSTITUTION OF THE UNITED STATES. 19 

Besides conferring specified powers upon the national govern- 
ment, the Constitution contains also certain restrictions upon the 
action of the States, a portion of them designed to prevent en- 
croachments upon the national authority, and another portion to 
protect individual rights against possible abuse of State power. 
Of the first class are the following : No State shall enter into any 
treaty, alliance, or confederation, grant letters of marque or re- 
prisal, coin money, emit bills of credit,^ or make any thing 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 neces- 
sary for executing its inspection laws ; and the net produce of all 
duties and imposts laid by any State on imports or exports' shall 
be for the use of the treasury of the United States, and air such 
laws shall be subject to the revision and control of Congress. No 
State shall, without the consent of Congress, lay any duty of 
tonnage, keep troops or ships of war in time of peace, enter into 
any agreement or compact 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 : No State shall pass any bill of attainder, ex 
post facto law, or law impairing the obligation of contracts,^ or 
make or enforce any law which shall abridge the privileges or 
immunities of citizens of the United States; nor shall any 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 suffrage 
on race, color, or previous condition of servitude.* 

1 To constitute a bill of credit constitutional sense. Damngton v. 

within the meaning of the Constitu- State Bank of Alabama, 13 How. 12. 

tionvit must be issued by a State, See, further, Craig ». Missouri, 4 Pet. 

involve' the faith of the State, and be 410; Byrne v. Missouri, 8 Pet. 40; 

designed to circulate as money on the Curran v. Arkansas, 15 How. 317 ; 

credit of the State in the ordinary Moreau v. Detchamendy, 41 Mo. 431 ; 

uses of business. Briscoe v. Bank of Bailey v. Milner, 85 Geo. 330 ; City 

Kentucky^ 11 Pet. 257 ; Woodruff v. National Bank v. Mahan, 21 La. Ann. 

Trapnall, 10 How. 209. The facts 751. 

that a State owns the entire capital ^ Const, of U. S. art. 1, § 10; 

stock of a bank, elects the directors, Story on Const, c. 33, 34. 

makes its bills receivable for the pub- » Const, of U. S. 14th Amend- 

lic dues, and pledges its faith for their ment ; Story on Const. (4th ed.) c. 47. 

redemption, do not make the bills of * Const, of U. S. 15th Amend- 

such bank " bills of credit " in the ment; Story on Cotost. (4th ed.) c. 48. 



20 



CONSTITUTIONAL LIMITATIONS. 



[CH. n. 



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



1 Const, of U. S. art. 4. " What 
are the privileges and immunities of 
citizens in the several States? We 
feel no hesitation in confining these 
expressions to those privileges and 
immunities which are in their nature 
fundamental; which belong of right 
to the citizens of all free governments ; 
and which have, at all times, been 
enjoyed by the citizens of the several 
States which compose this Union, 
from the time of their becoming free, 
independent, and sovereign. What 
those fundamental principles are, it 
would perhaps be more tedious than 
difficult to enumerate. They may, 
however, be all comprehended under 
the following general heads: protec- 
tion by the government, the enjoy- 
ment of life and liberty, with the 
right to acquire and possess property 
of every kind, and to pursue and 
obtain happiness and safety, subject 
nevertheless to such restraints as the 
government may justly prescribe for 
the general good of the whole. The 
right of a citizen of one State to pass 
through or to reside in any other 
State, for purposes of trade, agricul- 
ture, professional pursuits, or other- 
wise ; to claim the benefit of the writ 
of habeas corpus; to institute and 
maintain actions of every kind in the 
courts of the State ; to take, hold, 
and dispose of property, either real or 
personal; and an exemption from 
higher taxes or impositions than are 
paid by the citizens of the other State, 
— may be mentioned as some of the 
particular privileges and immunities 
of citizens, which are clearly embraced 
by the general description of privi- 
leges deemed to be fundamental ; to 
which may be added the elective 



franchise as regulated and established 
by the laws or constitution of the 
State in which it is to be exercised. 
These, and many others which might 
be mentioned, are, strictly speaking, 
privileges and immunities, and the 
enjoyment of them by the citizens of 
each State in every other State was 
manifestly calculated (to use the ex- 
pressions of the preamble of the cor- 
responding provision in the old Arti- 
cles of Confederation) ' the better to 
secure and perpetuate mutual friend- 
ship and intercourse among the peo- 
ple of the different States of the 
Union.' " Washington, J., in Cor- 
field V. Coryell, 4 Wash. C. C. 380. 
The Supreme Court will not describe 
and define those privileges and immu- 
nities, in a general classification ; pre- 
ferring to decide each case as it may 
come up. Conner v. Elliott, 18 How. 
591; Ward v. Maryland, 12 Wall. 
418; McCready v. Virginia, 94 U. S. 
Rep. 391. The question in this last 
case was whether the State of Vir- 
ginia could prohibit citizens of other 
States from planting oysters in Ware 
River, a stream in that State where 
the tide ebbs and flows, and the right 
be granted by the State to its own 
citizens exclusively. Waite, Ch. J., 
in answering the question in the 
affirmative, said: " The right thus 
granted is not a privilege or immunity 
of general but of special citizenship. 
It does not belong of right to the citi- 
zens of all free governments, but only 
to the citizens of Virginia, on account 
of the peculiar circumstances in which 
they are placed; they, and they alone, 
owned the property to be sold or 
used, and they alone had the power 
to dispose of it as they saw fit. 



CH. II.] THE CONSTITUTION OF THE UNITED STATES. 21 

tives from justice shall * be delivered up,i and that full [* 16] 



They owned it, not by virtue of 
citizenship merely, but of citizenship 
and domicile united; that is to say, 
by virtue of a citizenship confined to 
that particular locaUty." See also 
Paul V. Hazelton, 37 N. J. 106. For 
other discussions upon this subject, see 
Murray v. McCarty, 2 Munf. 393; 
Lemmon v. People, 26 Barb. 270, and 
20 N. Y. 562; Campbell v. Morris, 

3 liar.. & M'H. 554; Amy v. Smith, 
1 Lit. 326; Crandall v. State, 10 
Conn. 310 ; Butler v. Farnsworth, i 
Wash. C. C. 101 ; Commonwealth v. 
Towles, 5 Lteigh, 743; Haney v. Mar- 
shall, 9 Md. 194; Slaughter v. Com- 
monwealth, 13 Grat. 767; State v. 
Medbury, 3 R. I. 138; People i». Im- 
lay, 20 Barb. 68; People v. Coleman, 

4 Cal. 46; People v. Thurber, 18 111. 
544; Phoenix Insurance Co. v. Com- 
monwealth, 5 Bush, 68; Ducat v. 
Chicago, 48 111. 172 ; Fire Department 
V. Noble, 3 E. D. Smith, 441 ; Same v. 
Wright, 3 E. D. Smith, 453; Same 
V. Holfenstein, 16 Wis. 136; Sears v. 
Commissioners of Warren Co., 36 
Ind. 267; Jefferson ville, &c. R. R. Co. 
B. Hendricks, 41 Ind. 71 ; Cincinnati 
Health Association v. Rosenthal, 55 
III. 85 ; State ». Fosdick, 21 La. Ann. 
434; Live Stock, &c. Association v. 
Crescent City, &c. Co., 16 Wall. 36; 
Bradwellw. State, 16 Wall. 130;Barbe- 
meyer v. Iowa, 18 Wall. 129; United 
States V. Cruikshanks, 92 U. S. Rep. 
542. The constitutional provision 
does not apply to corporations. War- 
ren Manuf. Co. v. Mtna, Ins. Co., 2 
Paine, 501 ; Paul v. Virginia, 8 Wall. 
168. A discrimination between local 
freight on railroads and that which is 
extra-territorial is not personal, and 
therefore not forbidden by this clause 
of the Constitution. Shipper v. 
Pennsylvania R. R. Co., 47 Peun. St. 
338. A State cannot impose, for the ' 



, privilege of doing business within its 
limits, a heavier license tax upon 
non-residents than is required of resi- 
dents. Ward V. Maryland, 12 Wall. 
418. 

' Extradition as between the States. 
The return by one State of fugitives 
from justice which have fled to it from 
another State is only made a matter 
of rightful demand by the provisions 
of the federal Constitution. In the 
absence of such provisions, it might 
be provided for by State law ; but the 
Constitution makes that obligatory 
which otherwise would rest in the im- 
perfect and uncertain requirements of 
inter-state comity. The subject has 
received much attention from the 
courts when having occasion to con- 
sider the nature and extent of the 
constitutional obligation. It has also 
been the subject of many executive 
papers; and several controversions be- 
tween the executives of New York anJ 
those of more southern States are re- 
ferred to in the recent life of William 
H. Seward, by his son. The follow-, 
ing are among the judicial decisions: 
The offence for which extradition may 
be ordered need not have been an 
offence either at the common law or 
at the time the Constitution was 
adopted ; it is sufficient that it was so 
at the time the act was committed, 
and when demand is made. Matter 
of Clark, 9 Wend. 221; Johnston v. 
Riley, 13 Geo. 97 ; Matter of Fetter, 

23 N. J. 311; Matter of Voorhies, 
32 N. J. 141; Morton v. Skinner, 48 
Ind. 123; Matter of Hughes, Phill. 
(N. C.) 57; Kentucky v. Dennison, 

24 How. 66. The offence must have 
been actually committed within the 
State making the demand, and the 
accused must have fled therefrom. 
Ex parte Smith, 3 McLean, 133. The 
accused may be arrested to await 



22 



CONSTITUTIONAL LIMITATIONS. 



[CH. II. 



[* 17] faith and credit shall be given in * each State to the 

public acts, records, and judicial proceedings of every 

other State.i Many cases have been decided under these several 

nison, 14 Pet. 540 ; Ex parte Holmes, 
12 Vt. 631 ; People v. Curtis, 50 N. Y. 
321. 



demand: State v. Buzine, 4 Harr. 
572; Ex parte Culreth, 49 Cal. 436; 
but he cannot be surrendered before 
formal demand is made, and parties 
who seize and deliver him up without 
demand will be liable for doing so: 
Botts V. Williams, 17 B. Monr. 677. 
Still, if he is returned to. the State 
from whence he fled without proper 
papers, this will be no sufficient 
ground for his discharge from custody. 
Dow's Case, 18 Penn. St. 39. The 
demand is to be made by the execu- 
tive of the State, by which is meant 
the governor: Commonwealth v. Hall, 
9 Gray, 262; and it is the duty of the 
executive of the State to which the 
ofEender has fled to comply: Johnston 
V. Riley, 13 Geo. 97; but if he refuses 
to do so, the courts have no power to 
compel him: Kentucky v. Dennison, 
24 How. 66; Matter of Manchester, 
5 Cal. 237. There must be a show- 
ing of suflioient cause for the arrest 
before the requisition can issue ; but, 
after it is issued and complied with, 
it is competent for the courts of either 
State on habeas corpus to look into 
the papers, and, if they show no suffi- 
cient legal cause, to order the pris- 
oner's discharge. Ex parte Smith, 
3 McLean, 121; Matter of Clark, 9 
Wend. 219; Matter of Manchester, 
5 Cal. 287; Matter of Heyward, 1 
Sandf. 701; Ex parte White, 49 Cal. 
434; State v. Hufford, 28 Iowa, 391; 
People V. Brady, 56 N. Y. 182 ; Kings- 
bury's Case, 106 Mass. 223. The 
federal courts have no power to com- 
pel the State authorities to fulfil 
their duties under this clause of the 
Constitution. Kentucky ». Dennison, 
24 How. 66. 

Extradition to foreign countries is 
purely a national power, to be exer- 
cised under treaties. Holmes v. Jen- 



1 Const, of U. S. art. 4. This 
clause of the- Constitution has been 
the subject of a good deal of discus- 
sion in the courts. It is well settled 
that if the record of a judgment shows 
that it was rendered without service 
of process or appearance of the de- 
fendant, or if that fact can be shown 
without contradicting the recitals of 
the record, it will be treated as void 
in any other State, notwithstanding 
this constitutional provision. Kibbe 
V. Kibbe, Kirby, 126; Aldrich v. Kin- 
ney, 4 Conn. 380 ; Middlebrooks v. 
Ins. Co., 14 Conn. 307; Wood ». 
Watkinson, 17 Conn. 500; Bartlett 
V. Knight, 1 Mass. 409; Bissell v. 
Briggs, 9 Mass. 462; Hall v. Wil- 
liams, 6 Pick. 232; Woodworth v. 
Tremere, 6 Pick. 354; Gleason v. 
Dodd, 4 Met. 333 ; Commonwealth 
V. Blood, 97 Mass. 538; Edson v. 
Edson, 108 Mass. 590; s. c. 11 Am. 
Rep. 393; Kilbourne v. Woodworth, 
5 Johns. 37 ; Robinson v. Ward's Exec- 
utors, 8 Johns. 86; Fenton v. Gar- 
liok, 8 Johns. 194 ; Pawling v. Bird's 
Executors, 13 Johns. 192; Holbrook 
u. Murray, 5 Wend. 161; Bradshaw 
V. Heath, 13 Wend. 407; Noyes v. 
Butler, 6 Barb. 613; Hofem'an v. 
Hoffman, 46 N. Y. 30; s. c. 7 Am. 
Rep. 299 ; Thurber v. Blackbourne, 
1 N. H. 242 ; Whittier v. Wendell, 7 
N. H. 257 ; Rangely v. Webster, 11 
N. H. 306; Adams m. Adams, 51 N. H. 
388; 8. c. 12 Am. Rep. 134; Wilson «. 
Jackson, 10 Mo. 334. See McLau- 
rine o. Monroe, 30 Mo. 462 ; Bimeler 
V. Dawson, 4 Scam. 536 ; Warren v. 
McCarthy, 25 111. 95 ; Curtiss v. Gibbs, 
1 Penn. 406; Rogers v. Coleman, Hard. 
416; Armstrong v. Harshaw, 3 Dev. 



OH. 11.] THE CONSTITUTION OF THE UNITED STATES. 



23 



provisions, the most important of which are collected in the mar- 
ginal notes. 

The last provisions that we shall here notice are that the 
United States shall guarantee to every State a republican form 
of government,^ and that no State shall grant any title of 
nobility.^ The purpose of these is to protect a Union 
founded on republican principles, and composed entirely of 



187; Norwood o. Cobb, 24 Texas, 551 ; 
Rape V. Heaton, 9 Wis. 328; Mc- 
Cauley v. Hargroves, 48 Geo. 50; s. c. 
15 Am. Rep. 660; People v. Dawell, 
25 Mich. 247; s. c. 12 Am. Rep. 260; 
Hood V. State, 5 Cent. Law Journ. 
35; Lincoln v. Tower, 2 McLean, 473 ; 
Westerwelt v. Lewis, 2 McLean, 511; 
Railroad Co. v. Trimble, 10 Wall. 877; 
Board of Public Works v. Columbia 
College, 17 Wall. 521. But whether 
it would be compptent to show, in 
opposition to the recitals of the record, 
that a judgment of another State 
was rendered without jurisdiction 
having been obtained of the person 
of the defendant, the authorities are 
not agreed. Many cases hold not. 
Field V. Gibbs, 1 Pet. C. C. 156; 
Green v. Sarmiento, 1 Pet. C. C. 76; 
Lincoln v. Tower, 2 McLean, 473; 
Westerwelt v. Lewis, 2 McLean, 
511; Roberts v. Caldwell, 5 Dana, 
512; Hensley v. Force, 7 Eng. 756; 
Pearce v. Olney, 20 Conn. 544; 
Hoxie V. Wright, 2 Vt 263; New- 
comb V. Peck, 17 Vt. 3(12; Willcox v. 
Kassick, 2 Mich. 165; Bimeleru. Daw- 
son, 4 Scam. 536; Welch ». Sykes, 
3 Gil. 197; Wetherell v. Stillman, 
65 Penn. St. 105. Other cases admit 
such evidence. Starbuck v. Murray, 
5 Wend. 148; Holbrook v. Murray, 5 
Wend. 161; Shumway v. Stillman, 6 
Wend. 447; Borden v. Fitch, 15 
Johns. 121 ; Hall v. Williams, 6 Pick. 
232; Aldrich v. Kinney, 4 Conn. 380 
Bradshaw v. Heath,. 13 Wend. 407 
Hoffman v. HofEman, 46 N. Y. 30 
Gleason v. Dodd, 4 Met. 333; Kane 



V. Cook, 8 Cal. 449; Norwood u. 
Cobb, 24 Texas, 551; Russell v. 
Perry, 14 N. H. 155; Rape v. Heaton, 
9 Wis. 328; Carleton v. Bickford, 13 
Gray, 596; Mackay ». Gordon, 34 
N. J. 286; Thompson v. Whitman, 
18 Wall. 457. In People v. Dawell, 
25 Mich. 247, on an indictment for 
bigamy, in which the defendant relied 
on a foreign divorce from his first 
wife, it was held competent to show, 
in opposition to the recitals of the 
record, that the parties never resided 
in the foreign State, and that the 
proceedings were a fraud. Recent 
decisions of the Supreme Court of 
Indiana, and of the Supreme Court 
of Commission of Ohio, are to the 
same effect. See Hood v. State, re- 
ported in Central Law Journal, July 
13, 1877, and Pennywit v. Foote, 27 
Ohio, N. s. 600. Mr. Freeman dis- 
cusses this general subject in his 
treatise on Judgments, c. 26. The 
same defences may be made to a 
judgment when sued in another State 
which could have been made to it in 
the State where rendered: Hampton 
V. McConnel, 3 Wheat. 234; Mills v. 
Duryea, 7 Cranch, 484; Steele v. 
Smith, 7 W. & S. 447; Bank of the 
State V. Dalton, 9 How. 528; but no 
others: Green v. Van Buskirk, 7 Wall. 
139; Christmas v. Russell, 5 Wall. 
290; Cheever v. Wilson, 9 Wall. 108; 
People V. Dawell, 25 Mich. 247; s. c. 
12 Am. Rep. 260; Dodge, v. Coffin, 
15 Kan. 277. 

1 Const, of U. S. art. 4, § 4. 

2 Const, of U. S. art. 1, § 10. 



24 CONSTITUTIONAL LIMITATIONS. [CH. n. 

[* 18] * republican members against aristocratic and monarchica;! 
innovations.^ 

So far as a particular consideration of the foregoing provisions 
falls within the plan of our present work, it will be more conven- 
ient to treat of them in another place, especially as all of them 
which have for their object the protection of person or property- 
are usually repeated in the bills of rights contained in the State 
constitutions, and will require some notice at our hands as a part 
of State constitutional law. 

Where powers are conferred upon the general government, the 
exercise of the same powers by the States is impliedly prohibited, 
wherever the intent of the grant to the national government 
would be defeated by such exercise. On this ground it jis held 
that the States cannot tax the agencies or loans of the general 
government ; since the power to tax, if possessed by the States 
in regard to these objects, might be so exercised as altogether to 
destroy such agencies and impair or even destroy the national 
credit.^ And where by the national Constitution jurisdiction is 
given to the national courts with a view to the more efficient 
and harmonious working of the system organized under it, it is 
competent for Congress in its wisdom to make that jurisdiction 
exclusive of the State courts.^ On some other subjects State laws 
may be valid. until the power of Congress is exercised, when they 
become superseded, either wholly, or so far as they are found 
inconsistent. The States may legislate on the subject of bank- 
ruptcy if there be no national bankrupt law.* State laws for 
organizing and disciplining the militia are valid, except as they 

1 Federalist, Nos. 43 and 44. It p. *482. State laws cannot regulate 
does not fall within our province to the sale of patents, the whole subject 
discuss these provisions. They have belonging exclusively to Congress, 
been much discussed in Congress Bz parte Robinson, 2 Biss. 309. 
within a few years, but in a party, « Martin v. Hunter's Lessee, 1 
rather than a judicial, spirit. See Wheat. 334; The Moses Taylor v. 
Story on Const. (4th ed.) c. 41, and Hammons, 4 Wall. 411; The Ad Hine 
notes, and article in International v. Trevor, 4 Wall. 555. And see 
Review for January, 1875, on " The note to these cases in the Western 
Guaranty of Order and Republican Jurist, Vol. I. p. 241. 
Government in the States." * Sturgis v. Crowninshield, 4 

2 McCullochw Maryland, 4 Wheat. Wheat. 122; McMillan w. McNeill, 
316, 427; Weston v. Charleston, 2 4 Wheat. 209. And see post, pp. 
Pet. 449. See cases collected, post, * 293-294. 



CH. II.] THE CONSTITUTION OP THE UNITED STATES. 25 

may conflict with national legislation ; ^ and the States may con- 
stitutionally provide for punishing the counterfeiting of coin ^ and 
the passing of counterfeit money,' since these acts are offences 
against the State, notwithstanding they may be offences against the 
nation also. 

* The tenth amendment to the Constitution provides [* 19] 
that the powers not delegated to the United States by - 

the Constitution, nor prohibited by it to the States, are reserved 
to the States respectively, or to the people. And it is to be 
observed of this instrument, that being framed for the 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 cases 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 may be mentioned. These constitute a guaranty 
of the right of trial by jury ; but, as they do not mention the 
States, they are not to be understood as restricting their powers ; 
and the States may, if they choose, provide for the trial of all 
offences against the States, as well as for the trial of civil cases in 
the State courts, without the intervention of a jury, or by some 
different jury from that known to the common law.^ 

With other rules for the construction of the national Constitu- 

1 Houston!;. Moore, 5 Wheat. 1, 51. Reed ». Rice, 2 J. J. Marsh. 45; 

2 Harlaji v. People, 1 Doug. North. Mo. R. R. Co. v. Maguire, 49 
(Mich.) 207. Mo. 490; Lake Erie, &c. R. R. Co. v. 

' Fox V. Ohio, 5 How. 410 ; United Heath, 9 Ind. 558; Prescottu. State, 19 

States V. Marigold, 9 How. 560. And Ohio, n. s. 184 ; State v. Shumpert, 

see Hendriok's Case. 5 Leigh, 707; 1 So. Car. n. s. 85; Commonwealth 

Jett «. Commonwealth, 18 Grat. 933; v. Hitchings, 5 Gray, 482 ; Bigelow v. 

Moore v. People, 14 How. 13. Bigglow, 120 Mass. 320; Boyd v. 

* Barron v. Baltimore, 7 Pet. 243; Ellis, 11 Iowa, 97; Cambell v. State, 
Livingston's Lessee v. Moore, 7 Pet 11 Geo. 353; State v. Carre, 26 La. 
551 ; Fox V. Ohio, 5 How. 432 ; Smith Ann. 377 ; Purvear v. Commonwealth, 
V. Maryland, 18 How. 71; Buona- 5 Wall. 475; Twitchell v. Common- 
parte v. Camden & Amboy R. R. Co., wealth, 7 Wall. 321. 

Baldw. 220; James w. Commonwealth, ^ Twitchell v. Commonwealth, 7 

12 S. & R. 221 ; Barker v. People, 3 Wall. 321 ; Justices*'. Murray, 9 Wall. 

Cow. 686; Colt v. Eves, 12 Conn. 274; Edwards v. ^lliott, 21 Wall. 532; 

243; Jane v. Commonwealth, 3 Met. Walker v. Sauv|yt, 92 U. S Rep. 

(Ky.) 18 ; Lincoln v. Smith, 27 Vt. 90 ; Munn v. Illinois, 94 U. S. Rep. 

336; Matter of Smith, 10 Wend. 113. ,|^ 

449; State v. Barnett, 3 Kansas, 250; 



CONSTITUTIONAL LIMITATIONS. 



[CH. n. 



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 
public at large. So far as that instrument apportions powers to 
the national judiciary, it must be understood, for the most part, 
as simply authorizing Congress to pass the necessary legislation 
for the exercise of those powers by the federal courts, and not as 
directly, of its own force, vesting them with that authority. The 
Constitution does not, of its own force, giv£ to national courts 
jurisdiction of thie Beveral 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 
do not derive authority from the common law to take cognizance 
of and punish offences against the government. Offences against 
the nation are defined and their punishment prescribed by acts of 
Congress.^ 



1 Demurrer to an indictment for a 
libel upon the President and Congress. 
By the court: " The only question 
which this case presents is, whether 
the circuit courts can exercise a com- 
mon-law jurisdiction in criminal cases. 
. . . The general acquiescence of 
legal men shows the prevalence of 
opinion in favor of the negative of the 
proposition. The course of reasoning 
which leads to this conclusion is sim- 
ple, obvious, and admits of but little 
illustration. The powers of the gen- 
eral government are made up of con- 
cessions from the several States: 
whatever is not expressly given to 
the former, the latter expressly re- 
serve. The judicial power of the 
United States is a constitutional part 
of these concessions: that power is to 
be exercised by courts organized for 
the purpose, and brought into exist- 
ence by an efiort of the legislative 
power of the Union. Of all the 
courts which the United States may, 



under their general powers, consti- 
tute, one only, the Supreme Court, 
possesses jurisdiction derived imme- 
diately from the Constitution, and of 
which the legislative power cannot 
deprive it. All other courts created 
by the general government, possess no 
jurisdiction but what is given them 
by the power that created them, and 
can be vested with none but what the 
power ceded to the general govern- 
ment will authorize them to confer. 
It is not necessary to inquire whether 
the general government, in any and 
what extent, possesses the power of 
conferring, on its courts a jurisdiction 
in cases similar to the present; it is 
enough that such jurisdiction has not 
been conferred by any legislative act, 
if it does not result to those courts as 
a consequence of their creation." 
United States v. Hudson, 7 Cranch, 
32. See United States v. Coolidge, 1 
Wheat. 415. "It is clear there can 
be no common law of the United 



CH. II.] THE CONSTITUTION OF THE UNITED STATES. 



2T 



States. The federal government is 
composed of twenty-four sovereign 
and independent States, each of 
■which may have its local usages, cus- 
toms, and common law. There is no 
principle which pervades the Union, 
and has the authority of law, that is 
not embodied in the Constitution or 
laws of the Union. The common law 
could be made a part of our federal 
system only, by legislative adoption." 
Per McLean, J. , Wheaton v. Peters, 8 



Pet. 658. See also Kendall v. United 
States, 12 Pet. 524; Lorman v. 
Clarke, 2 McLean, 568; United 
States V. Lancaster, 2 McLean, 433 ; 
United States v. New Bedford Bridge, 
1 Wood. & M. 435; United States v. 
Wilson, 3 Blatch. 435; United States 
V. Barney, 5 Blatch. 294. As to the 
adoption of the common law by the 
States, see Van Ness v. Pacard, 2 
Pet. 144, per Story, J.; and post, 
p. * 23, and cases cited in notes. 



28 CONSTITUTIONAL LIMITATIONS. [CH. HL 



[*21]. * CHAPTER III. 

THE FORMATION AND AMENDMENT OF STATE CONSTITUTIONS. 

The Constitution of the United States assumes the existence 
of thirteen distinct State governments, over whose people its 
authority was to be extended if ratified by conventions chosen 
for the purpose. Each of these States was then exercising the 
powers of government under some form of written constitution, 
and that instrument would remain unaffected by the adoption of 
the national Constitution, except in those particulars in which 
the two would come in conflict ; and as to those, the latter would 
modify and control the former.^ But besides this fundamental 
law, everj-- State had also a body of laws, prescribing the rights, 
duties, and obligations of persons within its jurisdiction, and 
establishing those minute rules for the various relations of life 
which cannot be properly incorporated in a constitution, but 
must be left to the regulation of the ordinarj'^ law-making 
power. 

By far the larger and more valuable portion of that body of 
laws consisted of the common law of Ungland, which had been 
transplanted in the American wilderness, and which the colonists, 
now become an independent nation, had found a shelter of pro- 
tection during all the lon'g contest with the mother countiy, 
brought at last to so fortunate a conclusion. 

The common law of England consisted of those maxims of 
freedom, order, enterprise, and thrift which had prevailed in the 
conduct of public affairs, the management of private business, the 
regulation of the domestic institutions, and the acquisition, con- 
trol, and transfer of property from time immemorial. It was the 
outgrowrth of the habits of thought and action of the people, and 

1 Livingston v. Van Ingen, 9 &c. of Mobile v. Dargari, 45 Ala. 
Johns. 507 ; State ». Cape Girardeau, 310. 
&c. R. R. Co., 48 Mo. 468; Mayor, 



CH. III.] FOEMATION AND AMENDMENT OF CONSTITUTIONS. 29 

was modified gradually and insensibly from time to time as those 
habits became modified, and as civilization advanced, and new in- 
ventions introduced new wants and conveniences, and new modes 
of business. Springing from the very nature of the people them- 
selves, and developed in their own experience, it was pbviously 
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 from one coun- 
try to another. 

* To eulogize the common law is no part of our pres- [* 22] 
ent purpose. Many of its features were exceedingly harsh 
and repulsive, and gave unmistakable proofs that they had their 
origin in times of profound ignorance, superstition, and barbarism. 
The feudal system, which was essentially a system of violence, 
disorder, and rapine,^ gave birth to many of the maxims of the 
common law ; 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 incon- 
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 affairs ; 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 his cottage against him, and 
defend from intrusion that privacy which was as sacred as the 
kingly prerogatives.^ The system was the opposite of servile ; 

1 " A feudal kingdom was a con- cipher or a tyrant, and a great por- 

federacy of a numerous body, who tion of the people were reduced to 

-lived in a state of war against each personal slavery." Mackintosh, His- 

other, and of rapine towards all man- tory of England, c. 3. 

kind, in which the king, according to " See post, p. * 299. 
his ability and vigor, was either a 



30 CONSTITUTIONAL LIMITATIONS. [CH. in. 

its features implied boldness, and independent self-reliance on 
the part of the people ; and if the criminal code was harsh, it at 
least escaped the inquisitorial features which were apparent in 
criminal procedure of other civilized countries, and which have 
ever been fruitful of injustice, oppression, and terror. 

For several hundred years, however, changes had from time to 
time been made in the common law by means of statutes. Origi- 
nally the purpose of general statutes was mainly to declare and 
reaffirm such common-law principles as, by reason of usurpations 

and abuses, had come to be of doubtful force, and which, 
[* 23] therefore, * needed to be authoritatively announced, that 

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 known 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 against 
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 so much to change the law,^ as to 

1 It is justly observed by Sidney » 1 William & Mary, sess. 2, c. 2. 

that "Magna Charta was not made * 32 Henry VIII. c. 7, and 34 & 

to restrain the absolute authority, for 35 Henry VIII. c. 5. 

no such thing was in being or pre- ' 29 Charles II. c. 3. 

tended (the folly of such visions ' 31 Charles II. c. 2. 

seeming to have been reserved to 7 n j jare not advise to cast the 

complete the misfortunes and igno- laws into a new mould. The work 

miny of our age), but it was to assert which I propound tendeth to the 

the native and original liberties of pruning and grafting of the law, and 

our nation by the confession of the not the plowing up and planting it 

king then being ; that neither he nor again, for such a remove I should 

his successors should any way en- hold for a perilous innovation." Ba- 

croach upon them." Sidney on Gov- con's Works, Vol. II. p. 231, Phil, 

ernment, c. 8, sec. 27. ed. 1852. 

» 1 Charles I. c. 1. 



CH. III.] FORMATION AND AMENDMENT OP CONSTITUTIONS. 31 



secure existing principles of the common law against being 
habitually set aside and violated by those in power. 

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



1 " The common law of England 
is not to be taken, in all respects, to 
be that of America. Our ancestors 
brought -with them its general princi- 
ples, and claimed it as their birth- 
right; but they brought with them 
and adopted only that portion which 
was applicable to their condition." 
istory, J., in Van Ness v. Paoard, 2 
Pet. 144. " The settlers of colonies 
in America did not carry with them 
the laws of the land as being bound 
by them wherever they should settle. 
They left the realm to avoid the incon- 
veniences and hardships they were 
under, where some of these laws were 
in force; particularly ecclesiastical 
laws, those for payment of tithes, and 
others. Had it been understood that 
they were to carry these laws with 
them, they had better have stayed at 
home among their friends, unexposed 
to the risks and toils of a new settle- 
ment. They carried with them a right 
to such parts of laws of the land as 
they should judge advantageous or 
useful to them ; a right to be free 
from those they thought hurtful, and 
a right to make such others as they 
should think necessary, not infringing 
the general rights of Englishmen; and 
such new laws they were to form as 
agreeable as might be to the laws 
of England." Franklin, Works by 
Sparks, "Vol. IV. p. 271. See also 
Chisholm v. Georgia, 2 Dall. 435; 
Patterson u. Winn, 5 Pet. 241; 
Wheaton v. Peters, 8 Pet. 6.59; Pol- 
lard V. Hagan, 3 How. 212; Com- 
monwealth V. Leach, 1 Mass. 59; 
Commonwealth v. Knowlton, 2 Mass. 



534"; Commonwealth v. Hunt, 4 Met. 
122; Pearoe v. Atwood, 13 Mass. 
354; Sackettw. Sackett, 8 Pick. 309; 
Marks v. Morris, 4 Hen & M. 463; 
Mayo V. Wilson, 1 N. H. 58; Houghton 
V. Page, 2 N. H. 44; State v. Rollins, 
8 N. H. 550 ; State v. Buchanan, 5 
H. & J. 356 ; Sibley v. Williams, 3 
G. & J. 62 ; State v. Cnmmings, 33 
Conn. 260; Martin v. Bigelow, 2 
Aiken, 187; Lindsleye. Coats, 1 Ohio, 
245; Bloom v. Richards, 2 Ohio, n. s. 
390; Lyle v. Richards, 9 S. & R. 
330; State v. Campbell, T. U. P. 
Charit. 167 ; Craft v. State Bank, 7 
Ind. 219 ; Dawson v. Coffman, 28 Ind. 
220; Bogardus v. Trinity Church, 4 
Sandf. Ch. 757 ; Morgan v. King, 30 
Barb. 9; Lansing v. Stone, 37 Barb. 
15 ; Simpson v. State, 5 Yerg. 356 ; 
Crouch V. Hall, 15 111. 263; Brown v. 
Pratt, 3 Jones (N. C.) Eq. 202; 
Stout. ». Keyes,'2 Doug. (Mich.) 184; 
Lorman v. Benson, 8 Mich. 18; Pier- 
son V. State, 12 Cal. 149; Norris ». 
Harris, 15 Cal. 226 ; Powell v. Sims, 
5 W. Va. 1 ; Colley v. Merrill, 6 Me, 
55; State v. Cawood, 2 Stew. 362; 
Carter v. Balfour, 19 Ala. 814; Bar- 
low V. Lambert, 28 Ala. 704; Good- 
win V. Thompson, 2 Greene (Iowa), 
329; Wagner v. Bissell, 3 Iowa, 396; 
Noonan v. State, 9 Miss. 582 ; Pow- 
ell II. Brandon, 24 Miss. 343 ; Coburn 
V. Harvey, 18 Wis 147; Reaume v. 
Chambers, 22 Mo. 36; Hamilton v. 
Kneeland, 1 Nev. 40. The courts of 
one State will presume the common 
law of a sister State to be the same as 
their own, in the absence of evidence 
to the contrary. Abell v. Douglass, 



32 CONSTITUTIONAL LIMITATIONS. [CH. IH. 

[* 24] They also claimed the benefit of * such statutes as from 
time to time had been enacted in modification of this 
body of rules.i And when the difficulties with the home govern- 
ment sprung up, it was a source of immense moral power to the 
colonists that they were able to show that the rights they claimed 
were conferred by the common law, and that the king and Par- 
liament were seeking to deprive them of the common birthright of 
Englishmen. Did Parliament attempt to levy taxes in America, 
the people demanded the benefit of that maxim with which for 
many generations every intelligent subject had been familiar, that 
those must vote the tax who are to pay it.^ Did Parliament 
order offenders against the laws in America to be sent to England 
for trial, every American was roused to indignation, and protested 
against the trampling under foot of that time-honored principle, 
that trials for crime must be by a jury of the vicinage. Contend- 
ing thus behind the bulwarks of the common law, Englishmen 
would appreciate and sympathize with their position, and Ameri- 
cans would feel doubly strong in a cause that was right not only, 
but the justice of which must be confirmed by an appeal to the 
consciousness of their enemies themselves. 

The evidence of the common law consisted in part of the declar- 
atory statutes we have mentioned,^ in part of the commentaries 

4 Denio, 305; Kermott r. Ayer, 11 Issachai -will never meet; that the 

Mich. 181; Sohurman v. Marley, 29 same people or nation should be both 

Ind. 458. the lion's whelp and the ass between 

^ The acts of Parliament passed burdens; neither will it be that a 

after the settlement of a colony were people overlaid with taxes should ever 

not in force therein, unless made so become valiant and martial. It is 

by express words, or by adoption, true that taxes levied by consent of 

Conimonwealth v. Lodge, 2 Grat. the State do abate men's courage less, 

579 ; Pemble v. Chfford, 2 McCord, as it hath been seen notably in the 

31. See Swift v. Tousey, 5 Ind. 196 ; exercise of the Low Countries, and in 

Baker e. Mattocks, Quincy, 72 ; Cath- some degree in the subsidies of Eng- 

cart V. Robinson, 5 Pet. 280. Those land, for you must note that we speak 

amendatory of the common law, if now of the heart and not of the 

suited to the condition of things in purse; so that although the same 

America, were generally adopted by tribute or tax laid by consent or by 

tacit consent. For the difiEering views imposing be all one to the purse, yet 

taken by Enghsh and American it works diversely upon the courage, 

statesmen upon the general questions So that you may conclude that uo 

here discussed, see the observations people overcharged with tribute is fit 

by Governor Pownall, and the com- for empire." Lord Bacon on the 

ments of Franklin thereon, 4 Works True Greatness of Kingdoms, 

of Franklin, by Sparks, 271. » These statutes upon the points 

^ " The blessing of Judah and which are covered by them are the 



CH. in.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 33 

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 
actually commenced, — these decisions were authority in the 
colonies, and the changes made in the common law up to the 
same period were operative in America also if suited to the con- 
dition of things here. The opening of the war of the Revolution 
is the point of time at which the continuous stream of the common 
law became divided, and that portion which had been adopted 
in America flowed on by itself, no longer subject to changes from 
across the ocean, but liable still to be gradually modified through 
changes in the modes of thought and of business among the peo- 
ple, as well as through statutory enactments. 

The colonies also had legislatures of their own, by which laws 
had been passed which were in force at the time of the separation, 
and which remained unaffected thereby. When, therefore, they 
emerged from the colonial condition into that of independence, the 
laws which governed them consisted, first, of the common law of 
England, so far as they had tacitly adopted it as suited to their 
condition ; second., of the statutes of England, or of Great Britain, 
amendatory of the common law, which they had in like manner 
adopted ; and, third, of the colonial statutes.^ The first and 
second constituted the American common law, and by this in 

best evidence possible. They are the islature chosen by the .people; and 

living charters of English liberty, to the authority of this body extends to 

the present day ; and as the forerun- all rightful subjects of legislation, 

hers of the American constitutions subject, however, to the disapproval 

and the source from which have been of Congress. Vincennes University 

derived many of the most important v. Indiana, 14 How. 273; Miners' 

articles in their bills of rights, they Bank o. Iowa, 12 How. 1. The legis- 

are constantly appealed to when per- lation, of course, must not be in 

Bonal liberty or private rights are conflict yi'ith the law of Congress con- 

. placed in apparent antagonism to the ferring the power to legislate, but a 

claims of government. variance from it may be supposed 

1 The like condition of things is approved by that body, if suffered to 

found to exist in the new States remaiti without disapproval for a 

formed and admitted to the Union series of years after being duly re- 

since the Constitution was adopted, ported to it. Clinton ». Englebrect, 

Congress creates territorial govern- 13 Wall. 434, 446. See Williams v. 

ments of different grades, but gener- Bank of Michigan, 7 Wend. 539 ; 

ally with plenary legislative power Swan u. Williams, 2 Mich. 427; Stout 

either in the governor and judges, a ». Hyatt, 13 Kan. 232. 
territorial council, or a territorial leg- 

8 



34 



CONSTITUTIONAL LIMITATIONS. 



[CH. HI. 



great part are rights adjudged and wrongs redressed in the 

American States to this day.^ 

designed temporarily to regulate the 
government of the Territory were 
abolished by the change from a terri- 
torial to a State government, while 
the other parts, which were designed 
to be permanent, are unalterable ex- 
cept by common consent. Some of 
these, however, being guaranteed by 
the federal Constitution, afterwards 
adopted, may be regarded as practi- 
cally annulled, while any others which 
are opposed to the constitution of any 
State formed out of the Territory 
must also be considered as annulled 
by common consent; the people of 
the State assenting in forming their 
constitution, and Congress in admit- 
ting the State into the Union under 
it. The article in regard to naviga- 
ble waters is therefore still in force. 
The same was also said in regard to 
the article prohibiting slavery, though 
that also may now be regarded as 
practically annulled by the amendment 
to the federal Constitution covering 
the same ground. The like opinion was 
subsequently expressed in Palmer v. 
Commissioners of Cuyahoga Co., 3 
McLean, 226, and in Jolly v. Terre 
Haute Drawbridge Co., 6 McLean, 
237. See also Strader v. Graham, 10 
How. 82 ; Doe v. Douglass, 8 Blackf . 
12 ; Connecticut Mutual Life Ins. Co. 
V. Cross, 18 Wis. 109; Milwaukee 
Gaslight Co. v. Schooner Gamecock, 
23 Wis. 144; Wisconsin River Im- 
provement Co. 0. Lyons, 80 Wis. 61. 
Compare Woodburn v. Kilbourn 
Manuf. Co., 1 Abb. U. S. 158; s. c. 
1 Biss. 546. In the cases in the first 
and third McLean, however, the opin- 
ion was expressed that the States 
might lawfully improve the navigable 
waters and the carrying-places be- 
tween, and charge tolls upon the use 
of the improvement to obtain reim- 
bursement of their expenditures. 

In some of the States formed out 
of the territory acquired by the 



1 A few of the States, to get rid 
of confusion in the law,- deemed it 
desirable to repeal the acts of Parlia- 
ment, and to re-enact such portions of 
them as were regarded important 
here. See the Michigan repealing 
statute, copied from that of Virginia, 
in Code of 1820, p. 459. Others 
named a date or event, and provided 
by law that English statutes passed 
subsequently should not be of force 
within their limits. In some of the 
new States there were also other laws 
in force than those to which we have 
above alluded. Although it has been 
said in La Plaisance Bay Harbor Co. 
V. The City of Monroe, Walk. Ch. 155, 
and Depew v. Trustees of Wabash & 
Erie Canal, 5 Ind. 8, that the ordi- 
nance of 1787 was superseded in each 
of the States formed out of the 
North- West Territory by the adop- 
tion of a State constitution, and ad- 
mission to the Union, yet the weight 
of judicial authority is probably the 
other way. In Hogg v. The Zanes- 
ville Canal Manufacturing Co., 5 
Ohio, 410, it was held that the provi- 
sion of the ordinance that the naviga- 
ble waters of the Territory and the 
carrying-places between should be 
common highways, and for ever free, 
was permanent in its obligation, and 
could not be altered without the con- 
sent both of the people of the State 
and of the United States, given 
through their representatives. " It 
is an article of compact; and until 
we assume the principle that the sov- 
ereign power of a State is not bound 
by compact, this clause must be con- 
sidered obligatory." Justice McLean 
and Judge Leavilt, in Spooner ». Mc- 
Connell, 1 McLean, 337, examine 
this subject at considerable length, 
and both arrive at the same conclu- 
sipn with the Ohio court. The view 
taken of the ordinance in that case 
was, that such parts of it as were 



CH. m.] FORMATION AND AMENDMENT OP CONSTITUTIONS. 35 

* Every colony had also its charter, emanating from the [* 26] 
Crown, and constituting its colonial constitution. All 
but two of these were swept away by the whirlwind of revolu- 
tion, and others substituted which had been framed by the people 
themselves, through the agency of conventions which they had 
chosen. The exceptions were the States of Connecticut and 
Rhode Island, each of which had continued its government as a 
State under the colonial charter, finding it sufficient and satisfac- 
tory for the time being, and accepting it as the constitution for 
the State.^ 

New States have since, from time * to time, formed con- [* 27] 
stitutions either regularly in pursuance of enabling acts 
passed by Congress, or irregularly by the spontaneous action of 
the people, or under the direction of 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 Con- 
gress ; and there were not wanting in the case of some States 
plausible reasons for insisting that such admission * had [* 28] 
become a matter of right, and that the necessity for an 
enabling act by Congress was dispensed with by the previous 
stipulations of the national government in acquiring the Territory 
from which such States were formed.^ Some of these constitu- 

United States from foreign powers, ing the canon and ecclesiastical law, 

traces will be found of the laws exist- and their force in this country, see 

ing before the change of government. Crump v. Morgan, 3 Ired. Eq. 91; Le 

Louisiana has a code peculiar to itself, Barron v, Le Barron, 35 Vt. 365. 

based upon the civil law. Much of ^ It is worthy of note that the 

Mexican law, and especially as re- first case in which a legislative enact- 

gards lands and land titles, is retained ment was declared unconstitutional 

in the systems of Texas and Call- and void, on the ground of incompati- 

fornia. In Michigan, when the acts bilfty with the constitution of the 

of Parliament were repealed, it was State, was decided under one of these 

also deemed important to repeal all royal charters. The case was that of 

laws derived from France, through Trevett o. Weeden, decided by the 

the connection with the Canadian Superior Court of Khode Island in 

provinces, including the Coutume de 1786. See Arnold's History gf Rhode 

Paris, or ancient French common Island, Vol. II. c. 24. The case is 

law. In the mining States and Ter- further referred to,i)osf, p. * 160, note, 

ritories a peculiar species of common " This was the claim made on be- 

law, relating to mining rights and half of Michigan; it being insisted 

titles, has sprung up, having its ori- that the citizens, under the provisions 

gin among the miners, but recognized of the ordinance of 1787, whenever 

and enforced by the courts. Regard- the Territory acquired the requisite 



86 CONSTITUTIONAL LIMITATIONS. [OH. HI. 

tions pointed out the mode for their own modification ; others 
were silent on that subject ; but it has been assumed that in such 
eases 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- 
eignty is in the people, from whom springs all legitimate author- 
ity.^ The people of the Union created a national constitution, and 
conferred upon it powers of sovereignty over certain subjects, and 
the people of each State created a State government, to exercise 
the remaining powers of sovereignty so far as they were disposed 
to allow them to be exercised at all. By the constitution which 
they establish, they not only tie up the hands of their oflBcial 
agencies, but their own hands as well ; and neither the officers of 
the State, nor the whole people as an aggregate body, are at lib- 
erty to take action in opposition to this fundamental law. But in 
every State, although all persons are under the protection of the 
government, and obliged to conform their action to its laws, there 
are always some who are altogether excluded from participation 
in the government, and are compelled to submit to be ruled by 
an authority in the creation of which they have no choice. The 
political maxim, that government rests upon the consent of the 
governed, appears, therefore, to be practically subject to many 
exceptions ; and when we say the sovereignty of the S ate is 
vested in the people, the question very naturally presents itself. 
What are we to understand bji- The People as used in this con- 
nection? 
[* 29] * What should he the correct rule upon this subject, it 
does not fall within our province to consider. Upon this 

population, had an absolute right to as to the right of the people of a 
form a constitution and be admitted Territory to originate measures look- 
to the Union under it. See Scott ». ing to an application for admission to 
Detroit Young Men's Society's Lessee, the Union, see opinions of Attorneys- 
1 Doug. (Mich.) 119, arid the contrary General, Vol. II. p. 726. 
opinion in Myers v. Manhattan Bank, i See Jameson on Constitutional 
20 Ohio, 283. The debates in the Conventions, c. 8. 
Senate of the United States on the ^ McLean, J., in Spooner u. Mo- 
admission of Michigan to the Union Connell, 1 McLean, 347 ; Waite, Ch. 
go fully into this question. See Ben- J., in Minor v. Happersett, 21 Wall, 
ton's Abridgment of Congressional 162, 172; Potter's Dwarris on Stat. 
Debates, Vol. XIII. pp. 69-72. And c. 1. 



CH. m.] FORMATION AND AMENDMENT OP CONSTITUTIONS. 37 

men will theorize ; but the practical question lies back of the for- 
mation of the Constitution, 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.^ Such 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 
exclusion on the ground of want of capacity or of moral fitness 
could not reasonably and to the general satisfaction be defended. 

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

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

1 " The people, for political pur- reasons for the exclusion in the opin- 

poscs, must be considered as synony- ions in Bradwell v. State, 16 Wall, 

mous with qualified voters.'^ Blair 130, and Minorw. Happersett, 21 Wall. 

V. Ridgely, 41 Mo. 63. 362. 

^ Some reference is made to the 



38 CONSTITUTIONAI, LIMITATIONS. [CH. ECT. 

infant of tender years is wanting in competency, but he is daily 
acquiring it, and a period is fixed at which he shall conclusively 
be presumed to possess what is requisite. The alien may know 
nothing of our political system and laws, and he is 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 in 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.^ 

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

In regard to the formation and amendment of State constitu- 
tions, the following appear to be settled principles of American 
constitutional law : — 

I. The people of the several Territories may form for them- 
selves State constitutions whenever enabling acts for that purpose 
are passed by Congress, but only in the manner allowed by such 
enabling acts, and through the action of such persons as the en- 
abling acts shall clothe with the elective franchise to that end. 
If the people of a Territory shall, of their own motion, without 
such enabling act, meet in convention, frame and adopt a consti- 

1 State V. Woodruff, 2 Day, 504; ford v. Wilson, 4 Barb. 504. Many 

Catlin V. Smith, 2 S. & R. 267; special statutes, referring to the peo- 

Opinions of Judges, 18 Pick. 575. See pie of a municipality the question of 

Mr. Bancroft's synopsis of the first voting aid to internal improvements, 

constitutions of the original States, have confined the right of voting on 

in his History of the American Rev- the question to tax-payers, 
olution, c. 5. For some local elec- ^ The case of Rhode Island and 

tions it is quite common still to the "Dorr Rebellion," so popularly 

require property qualification or the known, -will be fresh in the minds of 

payment of taxes in the voter; but all. For a discussion of some of the 

statutes of this description are gener- legal aspects of the case, see Luther 

ally construed liberally. See Craw- v. Borden, 7 How. 1. 



CH. in.] FORMATION AND AMENDMENT OP CONSTITUTIONS. 39 

tution, and demand admission to the Union under it, such action 
does not entitle them, as matter of right, to be recognized as a 
State ; but the power that can admit can also refuse, and the 
territorial status must be continued until Congress shall be satis- 
fied to suffer the Territory to become a State. There are always 
in these cases questions of policy as well as of constitutional law 
to be determined by the Congress before admission becomes a 
matter of right ; — whether the constitution formed is republican ; 
whether suitable and proper State boundaries have been fixed 
upon ; whether the population is suflBcient ; whether the proper 
qualifications for the exercise of the elective franchise have been 
agreed to ; whether any inveterate evil exists in the Territory 
which is now subject to control, but which might be perpetuated 
under a State government; — these and the like questions, in 
which the whole country is interested, cannot be finally solved 
by the people of the Territory for themselves, but the final deci- 
sion must rest, with Congress, and the judgment must be favora- 
ble before admission can be claimed or expected.^ 

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

III. But the will of the people to this end can only be ex- 
pressed in the legitimate modes by which such a body politic 
can act, and which must either be prescribed by the constitution 
whose revision or amendment is sought, or by an act of the legis- 

1 When a constitution has been the legislature accepts such changes 

adopted by the people of a Territory, and additions, and it is admitted, the 

preparatory to admission as a State, changes become a part of the consti- 

and Congress prescribes certain tution, and binding as such, although 

changes and additions to be adopted not submitted to the people for ap- 

by the legislature as part of the con- proval. Brittle v. People, 2 Neb. 

stitution, and declares such changes 198. 

and additions to be fundamental con- " Luther v. Borden, 7 How. 1 ; 

ditions of admission of the State, and Wells v. Bain, 75 Penn. St. 39. 



40 



CONSTITUTIONAL LIMITATIONS. 



[CH. in.. 



lative department of the State, which alone would be author- 
ized to speak for the people upon this subject, and to point out 
a mode for the expression of their will in the absence of any pro- 
vision for amendment or revision contained in the constitution 
itself.i 



1 Opinions of the Judges, 6 Cush. 
573; Collier v. Frierson, 24 Ala. 100. 
The first constitution of New York 
contained no provision for its own 
amendment, and Mr. Hammond, in 
his Political History of New York, 
Vol. I. c. 26, gives a very interesting 
account of the controversy before the 
legislature and in the council of revi- 
sion as to the power of the legislature 
to call a convention for revision, and 
as to the mode of submitting its work 
to the people. In Collier v. Frierson, 
24 Ala. 108, it appeared that the leg- 
islature had proposed eight different 
amendments to be submitted to the 
people at the same time ; the people 
had approved them, and all the requi- 
site proceedings to make them a part 
of the constitution had been had, 
except that in the subsequent legisla- 
ture the resolution for their ratificEi- 
tion had by mistake omitted to re- 
cite one of them. On the question 
whether this one had been adopted, 
we quote from the opinion of the 
court: " The constitution can be 
amended in but two ways: either by 
the people who originally framed it, 
or in the mode prescribed by the in- 
strument itself. If the last mode is 
pursued, the amendments must be 
proposed by two-thirds of each house 
of the general assembly; they must 
be published in print, at least three 
months before the next general elec- 
tion for representatives ; it must appear 
from the returns made to the Secre- 
tary of State that a majority of those 
voting for representatives have voted 
in favor of the proposed amendments, 
and they must be ratified by two- 
thirds of each house of the next gen- 
eral assembly after such election, 



voting by yeas and nays, the proposed 
amendments having been read at each 
session three times on three several 
days in each house. We entertain no 
doubt that to change the constitution 
in any other mode than by a conven- 
tion, every requisition which is de- 
manded by the instrument itself must 
be observed, and the omission of any 
one is fatal to the amendment. We 
scarcely deem any argument necessary 
to enforce this proposition. The con- 
stitution is the supreme and para- 
mount law. The mode by which 
amendments are to be made under it 
is clearly defined. It has been said 
that certain acts are to be done, cer- 
tain requisitions are to be observed, 
before a change can be effected. But 
to what purpose are those acts re- 
quired or those requisitions enjoined, 
if the legislature or any department 
of the government can dispense with 
them? To do so would be to violate 
the instrument which they are sworn 
to support, and every principle of 
public law and sound constitutional 
policy requires the courts to pro- 
nounce against any amendment which 
is not shown to have been made in 
accordance with the rules prescribed 
by the fundamental law." See also 
State V. McBride, 4 Mo. 303. But 
where the constitution provided that 
amendments should be proposed by 
one general assembly, and approved 
and submitted to popular vote by a 
second, and seventeen amendments 
were thus approved together, and the 
second general assembly passed upon 
and submitted eight by one bill and 
nine by another, the submission was 
held sufficient and valid. Trustees 
of University v. Mclver, 72 N. C. 76. 



CH. in.] FOBMATION AND AMENDMENT OF CONSTITUTIONS. 41 

* IV. In accordance with universal practice, and from [* 32] 
the very necessity of the case, amendments to an existing 
constitution, or entire revisions of it, must be prepared and 
matured by some body of representatives chosen for the purpose. 
It is obviously impossible for the whole people to meet, prepare, 
and discuss the proposed alterations, and there seems to be no 
feasible mode by which an expression of their will can be obtained, 
except by asking it upon the single point of assent or disapproval. 
But no body of representatives, unless specially clothed with 
power for that purpose by the people when choosing them, can 
rightfully take definitive action upon amendments or revisions ; 
they must submit the result of their deliberations to the people" — 
who alone are competent to exercise the powers of sovereignty in 
framing the fundamental law — for ratification or rejection. The 
constitutional convention is the representativeof 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 [* 33] 
enacted by the people themselves.^ 

V. The power of the people to amend or revise their constitu- 
tions is limited by the Constitution of the United States in the 
following particulars : — 

1. It must not abolish the republican form of government, since 
such act would be revolutionary in its character, and would call 
for and demand direct intervention on the part of the government- 
of the United States.^ 

2. It must not provide for titles of nobility, or assume to violate 

1 See, upon this subject, Jameson Penn. St. 39. Such a convention has 
on the Constitutional Convention, no .inherent rights; it has delegated 
§§ 415-418, and 479-520. This work powers only, and must keep within 
is so complete and satisfactory in its them. Wood's Appeal, 75 Penn. St. 
treatment of the general subject, as 59. Compare Loomis v. Jackson, 6 
to leave little to be said by one who W. Va. 613, 708. The Supreme 
shall afterwards attempt to cover the Court of Missouri have expressed the 
same ground. Where a convention opinion that it was competent for a 
to frame amendments to the consti- convention to put a new constitution 
tution is sitting under a legislative in force without submitting it to the 
act from which all its authority is people. State v. Neal, 42 Mo. 119. 
derived, the submission of its labors But this was obit^. 
to a vote of the people in a manner ^ Const, of U. S. art. 4, § 4 ; Fed- 
different from that prescribed by the eralist, No. 43. 
a<!t is nugatory. Wells v. Bain, 75 



42 



CONSTITUTIONAL LIMITATIONS. 



[CH. in. 



the obligation .of any contract, or attaint persons of crime, or pro- 
vide ex -post facto for the punishment of acts by the courts which 
were innocent when committed, or contain any other provision 
which would, in effect, amount to the exercise of any power ex- 
pressly or impliedly prohibited to the States by the Constitution 
of the Union. For while such provisions would not call for the 
direct and forcible intervention of the 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 
constitution ; how the powers of government shall be apportioned 
in order to their proper exercise ; what protection shall be thrown 
around the person or property of the citizen ; and to what extent 
private rights shall be required to yield to the general 
[* 34] good.2 * And the courts of the State, still more the 



1 Cummings ». Missouri, 4 Wall. 
277 ; Jefferson Branch Bank v. Skelly, 
1 Black, 436 ; State v. Keith, 63 N. C. 
140; Jackoway v. Denton, 26 Ark. 
525; Union Bank ». State, 9 Yerg. 
490; Girdner v. Stephens, 1 Heis. 280 ; 
Lawson v. Jeffries, 47 Miss. 686; s. c. 
12 Am. Rep. 342 ; Penn ». Tollison, 
26 Ark. 545; Dodge ». Woolsey, 18 
How. 331; Pacific R. R. Co. v. Ma- 
guire, 20 Wall. 36; Railroad Co. v. 
McClure, 10 Wall. 511; White «. 
Hart, 13 Wall. 649. The fact that 
the constitution containing the ob- 
noxious provision was submitted to 
Congress, and the State admitted to 
full rights in the Union under it, can- 
not make such provision valid. Gunn 
». Barry, 15 Wall. 610. 

2 Matter of the Reciprocity Bank, 
22 N. Y. 9; McMuUen «. Hodge, 5 
Texas, 34 ; Penn v. Tollison, 26 Ark. 
545; Matter of Oliver Lee & Co.'s 
Bank, 21 N. Y. 9. In the case last 
cited, Denio, J., says: " The [consti- 
tutional] convention was not obliged, 



like the legislative bodies, to look 
carefully to the preservation of vested 
rights. It was competent to deal,' 
subject to ratification by the people 
and to the Constitution of the fed- 
eral government, with all private 
and social rights, and with all the 
existing laws and institutions of the 
State. If the convention had so 
willed, and the people had concurred, 
all former charters and grants might 
have been annihilated. When, there- 
fore, we are seeking for the true 
construction of a , constitutional pro- 
vision, we are constantly to bear in 
mind that its authors were not exe- 
cuting a delegated authority, limited 
by other constitutional restraints, but 
are to look upon them as the founders 
of a State, intent only upon establish- 
ing such principles as seemed best 
calculated to produce good govern- 
ment and promote the public happi- 
ness, at the expense of any and all 
existing institutions which might 
stand in their way." 



CH. m.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 43 



courts of the Union, would be precluded from inquiring into 
the justice of their action, or questioning its validity, because 
of any supposed conflict with fundamental rules of right or of 
government, unless they should be able to show collision at some 
point between the instrument thus formed and that paramount 
law which constitutes, in regard to the subjects it covers, the 
fundamental rule of action throughout the whole United States.^ 

How far the constitution of a State shall descend into the par- 
ticulars of government is a question of policy addressed to the 
convention which forms it. Certain things are to be looked for 
in all these instruments ; though even as to these there is great 
variety, not only of substance, but also in the minuteness of their 
provisions to meet particular cases. 

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

dent Johnson; but as it is the hope 
and trust of our people that the occa- 
sion for discussing such questions will 
never arise again, we do not occupy 
space with them in this work. It 
suffices for the present to say, that 
Congress claimed, insisted upon, and 
enforced the right to prescribe the 
steps to be taken and the conditions 
to be observed in order to restore 
these States to their former positions 
in the Union, and the right also to 
determine when the prescribed condi- 
tions had been complied with, so as 
to entitle them to representation in 
Congress. There is some discussion 
of the general subject in Texas v. 
White, 7 Wall. 700. And see Gunn 
V. Barry, 15 Wall. 610. 

It has been decided in some cases 
that a constitution is to have effect 
from the time of its adoption by the 
people, and not from the time of the 
admission of the State into the Union 
by Congress. Scott v. Young Men's 
Society's Lessee, 1 Doug. (Mich.) 
119; Campbell v. Fields, 35 Texas, 
751. 



1 All the State constitutions now 
contain within themselves provisions 
for their amendment. Some require 
the question of calling a convention 
to revise the constitution to be sub- 
mitted to the people at stated periods; 
others leave it to the legislature to 
call a convention, or to submit to the 
people the question of calling one; 
while the major part allow the legis- 
lature to mature specific amendments 
to be submitted to the people sepa- 
rately, and these become a part of the 
constitution if adopted by the requi- 
site vote. 

When the late rebellion had been 
put down by the military forces of 
the United States, and the State gov- 
ernments which constituted a part of 
the disloyal system had been dis- 
placed, serious questions were raised 
as to the proper steps to be taken in 
order to restore the States to their 
harmonious relations to the Union. 
These questions, and the controversy 
over them, constituted an important 
part of the history of our country 
during the administration of Presi- 



44 CONSTITUTION Ali LIMITATIONS. [CH. III. 

II. Generally the qualifications for the right of suffrage will 
be declared, as well as the conditions under which it shall be 
exercised. 

III. The usual checks and balances of republican government, 
in which consist its chief excellencies, will be retained. The most 
important of these are the separate departments for the exer- 
cise of legislative, executive, and judicial power ; and these are to 
be kept as distinct and separate as possible, except in so far as 
the action of one is made to constitute a restraint upon the action 
of the others, to keep them within proper bounds, and to prevent 
hasty and improvident action. Upon legislative action there is, 
first, the check of the executive, who will generally be clothed 
with a qualified veto power, and who may refuse to execute 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 legislative 
check, which consists in the power to prescribe rules for the 
courts, and perhaps to restrict their authority ; and the executive 
check, of refusing aid in enforcing any judgments which are be- 
lieved to be in excess of jurisdiction. Upon executive action the 
legislature has a power of restraint, corresponding to that which 
it exercises upon judicial action ; and the judiciary may punish 
executive agents for any action in excess of executive authority, 
And the legislative department has an important restraint upon 
both the executive and the judiciary, in the power of impeach- 
ment for illegal or oppressive action, or for any failure to perform 
official duty. The executive, in refusing to execute a legislative 
enactment, will always do so with the peril of impeachment in 
view. 

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

V. We shall also expect a declaration of rights for the pro- 
tection of individuals and minorities. This declaration usually 
contains the following classes of provisions : — 

1. Those declaratory of the general principles of republican 

' Park Commissioners v. Common Council of Detroit, 28 Mich. 228 ; 
People V. Albertson, 55 N. Y. 50. 



CH. ni.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 45 

government; such as, that all freemen, when they form a social 
compact, are equal, and no man, or set of men, is entitled to ex- 
clusive, separate public emoluments or privileges from the com- 
munity, but in consideration of public services ; that absolute, 
arbitrary power over the lives, 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, reform, or abolish their 
government in such manner as they may think proper ; that all 
elections shall be free and equal ; that no power of suspending 
the laws shall be exercised except by the legislature or its author- 
ity ; that standing armies are not to be maintained in time of 
peace ; that representation shall be in proportion to population ; 
that the people shall have the right freely to assemble to consult 
of the common good, to instruct their representatives, and petition 
for redress of grievances ; and the like. 

2. Those declaratory of the fundamental rights of the citizen : 
as that all men are by nature free and independent, and have cer- 
tain inalienable rights, among which are those of enjoying and 
defending life and liberty, acquiring, possessing, and protecting 
property, and pursuing and obtaining safety and happiness ; that 
the right to property is before and higher than any consti- 
tutional * sanction ; that the free exercise and enjoyment [* 36] 
of religious profession and worship, without discrimination 

or preference, shall for ever be allowed ; ^ that every man may 
freely speak, write, and publish his sentiments on all subjects, being 
responsible for the abuse of that righj ; that every man may bear 
arms for the defence of himself and of the State ; that the right 
of the people to be secure in their persons, houses, papers, and 
effects against unreasonable searches and seizures, shall not be 
violated, nor shall soldiers be quartered upon citizens in time of 
peace ; and the like. 

3. Those declaratory of the principles which ensure to the citizen 
an impartial trial, and protect him in his life, liberty, and property 
against the arbitrary action of those in authority : as that no bill 

1 Hale V. Everett, 53 N. H. 9 ; Board of Education v. Minor, 23 Ohio, N. s. 
211. 



46 CONSTITUTIONAL LIMITATIONS. [CH. HI. 

of attainder or ex post facto law shall be passed ; that the right to 
trial by jury shall be preserved ; that excessive bail shall not be 
required, nor excessive punishments inflicted ; that no person shall 
be subject to be twice put in jeopardy for the same offence, nor 
be compelled in any criminal case to be a witness against himself, 
nor be deprived of life, liberty, or property without due process of 
law ; that private property shall not be taken for public use with- 
out compensation ; and the like. 

Other clauses are sometimes added declaratory of the principles 
of morality and virtue ; and it is also sometimes expressly de- 
clared — what indeed is implied without the declaration — that 
every thing in the declaration of rights contained is excepted out 
of the general powers of government, and all laws contrary thereto 
shall be void. 

Many other things are commonly found in these charters of 
government ; ^ 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 properly left to the control of the legis- 
lature, which can more easily and speedily make the required 
changes. 

In considering State constitutions we must not commit the mis- 
take of supposing that, because individual rights are guarded and 
protected by them, they must also be considered as owing their 
origin to them. These instruments measure the powers of the 
rulers, but they do not measure the rights of the governed. 
[*37] * " What is a constitution, and what are its objects ? It is 
easier to tell what it is not than what it is. It is not the 
beginning of a community, nor the origin of private rights ; it 
is not the fountain of law, nor the incipient state of government ; 

1 "This, then, is the office of a the people; to ascertain, limit, and 

written [free] constitution: to delegate define the extent of the authority thus 

to various public functionaries such of delegated ; and to reserve to the peo- 

the powers of government as the peo- pie their sovereignty over all things 

pie do not intend to exercise for not expressly committed to their 

themselves; to classify these powers, representatives." E. P. Hurlbut in 

according to their nature, and to com- Human Rights and their Political 

mit them to separate agents; to pro- Guaranties, 
vide for the choice of these agents by 



CH. III.] POBMATION AND AMENDMENT OF CONSTITUTIONS. 47 



it is not the cause, but consequence, of personal and political free- 
dom ; it grants no rights to the people, but is tlie creature of their 
power, the instrument of their convenience. Designed for their 
protection in the enjoyment of the rights and powers which they 
possessed before the constitution was made, it is but the 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 organized society, law, order, property, 
personal freedom, a love of political liberty, and enough of culti- 
vated intelligence to know how to guard it lagainst the encroach- 
ments of tyranny. A written constitution is in every instance a 
limitation upon the powers of government in the hands of agents ; 
for there never was a written republican constitution which del- 
egated to functionaries all the latent powers which lie dormant 
in every nation, and are boundless in extent, and incapable of 
definition." ^ 



1 Hamilton v. St. Louis County 
Court, 15 Mo. 13, yeT Bates, arguendo. 
And see Matter of Oliver Lee & Co. 's 
Bank, 21 N. Y. 9 ; Lee ». State, 26 
Ark. 265-6. "Written constitutions 
sanctify and confirm great principles, 
but the latter are prior in existence to 
the former." 2 Webster's Works, 
392. See also 1 Bl. Com. 124; 
2 Story, Life and Letters, 278; Sidney 
on Government, c. 3, sees. 27 and 33. 
" If this charter of State government 
■which we call a constitution were all 
there was of constitutional command; 
if the usages, the customs, the max- 
ims, that have sprung from the habits 
of life, modes of thought, methods of 
trying facts by the neighborhood, and 
mutual responsibility in neighborhood 
interests ; the precepts that have come 
to us from the revolutions which over- 
turned tyrannies; the sentiments of 
manly indipendence and self-control 
■which impelled our ancestors to sum- 



mon the local community to redress 
local e-vils, instead of relying upon 
king or legislature at a distance to do 
so, — if a recognition of all these were 
to be stricken from the body of our 
constitutional law, a lifeless skeleton 
might remain, but the living spirit, 
that which gives it force and attrac- 
tion, which makes it valuable, and 
draws to it the afEections of the peo- 
ple; that which distinguishes it from 
the numberless constitutions, so called, 
which in Europe havC' been set up and 
thrown down within the last hundred 
years, many of which, in their ex- 
pressions, seemed equally fair and to 
possess equal promise with ours, and 
have only been wanting in the sup- 
port and vitality which these alone 
can give, — this living and breathing 
spirit which supplies the interpreta- 
tion of the words of the written char- 
ter would be utterly lost and gone." 
People V. Hurlbut, 24 Mich. 44-107. 



48 CONSTITUTIONAL LIMITATIONS. [CH. IV. 



[*38] * CHAPTER IV. 

OP THE CONSTRUCTION OF STATE CONSTITUTIONS. 

The deficiencies of human language are such that if written 
instruments were always prepared carefully by persons skilled in 
the use of words, we should still expect to find their meaning 
often drawn .in question, or at least to meet with difficulties in 
their practical application. But when draughtsmen are careless 
or incompetent, these difficulties are greatly increased, and they 
multiply rapidly when the instruments are to be applied, not only 
to the subjects directly within the contemplation of those who 
framed them, but also to a great variety of new circumstances 
which could not have been anticipated, but which must never- 
theless be governed by the general rules which the instruments 
establish. Moreover, the different points of view from which 
different interests regard these instruments incline them to differ- 
ent views of the instruments themselves. All these circumstances 
tend to give to the subjects of interpretation and construction 
great prominence in the practical administration of the law, and 
to suggest questions which often are of no little difficulty. 

Interpretation differs from construction in that the former "is 
the act of finding out the true sense of any form of words ; that 
is, the sense which their author intended to convey ; and of 
enabling others to derive from them the same idea which the 
author intended to convey. Construction, on the other hand, is 
the drawing of conclusions respecting subjects that lie beyond 
the direct expressions of the text, from elements known from 
and given in the text ; conclusions which are in the spirit, though 
not in 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 
individual, or two different enactments by the same legislative 
body, there is found contradiction where there was evidently no 



CH. IV.] CONSTRUCTION OP STATE CONSTITUTIONS. 49 

intention of such contradiction one of another, or where it hap- 
pens that part of a writing or declaration contradicts the rest. 
When this is the case, and the nature of the document or dec- 
laration, 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 con- 
tradiction, then resort must be had to construction ; so, too, if 
found to act in cases which have not been foreseen by the framers 
of those rules, by which we are nevertheless obliged, for some 
binding reason, faithfully to regulate as well as we can our action 
respecting the unforeseen case."^ In common use, howevei-, the 
word construction is generally employed in the law in a sense era- 
bracing all that is properly covered by both when each is used in 
a sense strictly and technically correct ; and we shall so employ 
it in the present chapter. 

From the earliest periods in the history of * written [* 39] 
law, rules of construction, sometimes based upon sound 
reason, and seeking the real intent of the instrument, and at 
other times altogether arbitrary or fanciful, have been laid down 
by those who have assumed to instruct in the law, or who have 
been called upon to administer it, by the aid of which the mean- 
ing of the instrument was to be resolved. Some of these rules 
have been applied to particular classes of instruments only ; 
others are more general in their application, and, so far as they 
are sound, may be made use of in any case where the meaning 
of a writing is in dispute. To such of these as seem important 
in constitutional law we shall refer, and illustrate them by refer- 
ences to reported cases, in which they have been applied. 

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

We have already seen that we are to expect in every constitu- 
tion an apportionment of the powers of government. We shall 

1 Lieber, Legal and Political Her- " Construction, in practice, defcermin- 

meneutics. See Smith on Stat, and ing the meaning and application as to 

Const. Construction, 600. Bouvier the case in question of the provisions 

defines the two terms succinctly as of a constitution, statute, will, or 

follows: " Interpretation, the discovery other instrument, or of an oral agree- 

and representation of the true mean- ment." Law Die. 
ing of any signs used to convey ideas." 



50 CONSTITUTIONAIi LIMITATIONS. [CH. IV. 

also find certain duties imposed upon the several departments, as 
■well as upon specified ofiicers in each, and we shall likewis^e dis- 
cover that the constitution has sought to hedge about their action 
in various ways, with a view to the protection of individual 
rights, and the proper separation of duties. And wherever any- 
one is called upon to perform any constitutional duty, or to do 
any act in respect to which it can be supposed that the constitu- 
tion has spoken, it is obvious that a question of construction may 
at once arise, upon which some one must decide before the duty 
is performed or the act done. From the very nature of the case, 
this decision must commonly be made by the person, body, or 
department upon whom the duty is devolved, or from whom the 
act is required. 

Let us suppose that the constitution requires of the 
[*,40] legislature, * that, in establishing municipal corporations, 
it shall restrict their powers of taxation ; and a city 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 municipality 
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 
constitution intends. , Let us suppose, again, that a board of su- 
pervisors is, by the constitution, authorized to borrow money upon 
the credit of the county for any county purpose, and that they are 
asked to issue bonds in order to purchase stock in some railway 
company which proposes to construct a road across the county ; 
and the proposition is met with the query. Is this a county pur- 
pose, and can the issue of bonds be regarded as a borrowing of 
money, within the meaning of the people as expressed in the con- 
stitution ? And once agein : let us suppose that the governor is 
empowered to convene the legislature on extraordinary occasions, 
and he is requested to do so in order to provide for a class of 
private claims whose holders are urgent ; can this v^ith any pro- 
priety fee deemed an extraordinary occasion ? 

In these and the like cases our constitutions have provided no 
tribunal for the specific duty of solving in advance the questions 
which arise. In a few of the States, indeed, the legislative de- 
partment has been empowered by the constitution to call upon 



CH. IV.J CONSTRtJCTION OP STATE CONSTITUTIONS. 61 

the courts for their opinion upon the constitutional validity of a 
proposed law, in order that, if it be adjudged without warrant, 
the legislature may abstain from enacting it.^ But those pro- 
visions are not often to be met with, and judicial decisions, espe- 
cially upon delicate and difficult questions of constitutional law, 
can seldom be entirely satisfactory when made, as they commonly 
will be under such calls, without the benefit of argument at the 
bar, and of that light upon the questions involved which 
might *be afforded by counsel learned in the law, and [*41] 
interested in giving them a thorough investigation. 

It follows, therefore, that every department of the government 
and every official of every department may at any time, when a 
duty is to be performed, be required to pass upon a question of 
constitutional construction.^ Sometimes the case will be such 
that the decision when made must, from the nature of things, be 
conclusive and subject to no appeal or review, however erroneous 
It may be in the opinion of other departments or other officers ; 
but in other cases the same question may be required to be passed 
upon again before 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 

^ By the constitutions of Maine, as to authorize him to call on the, 

New Hampshire, and Massachusetts, judges for their opinion, they must 

the judges of the Supreme Court are decide for themselves whether the 

required, when called upon by the occasion was such as to warrant the 

governor, council, or either house of governor in making the call. Opin- 

the legislature, to give their opinions ions of Judges, 49 Mo. 216. 
"upon important questions of law, ^ " It is argued that the legislature 

and upon solemn occasions." In cannot give a construction to the 

Florida the governor, and in Rhode constitution relative to private rights 

Island the governor or either house secured by it. It is true that the 

of the general assembly, may call legislature, in consequence of their 

for the opinions of the judges of the construction of the constitotian, cani- 

Supreme Court upon any question of not make laws repugnant to it. But 

law. In Missouri, previous to the every departm£nt of government, 

constitution of 1875, the judges were invested with certain constitutional 

required to give their opinions " upon powers, must, in the first instance, 

important questions of constitutional but not exclusively, be the judge of 

law, and upon solemn occasions;" its powers, or it could not act." 

and the Supreme Court held that Parsons, Ch. J., in Kendall v. In-, 

while the governor determined for habitants of Kingston, 5 Mass. 533. 
himself whether the occasion was such 



62 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

discretion or judgment 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 
classify them, there can be no doubt, when the case is properly 
determined to be one of this character, that the rule must prevail 
which makes the decision final. 

We will suppose, again, that the constitution empowers the 
executive to convene the legislature on extraordinary occasions, 
and does not in terms authorize the intervention of any one else 
in determining what is and what is not such an occasion in the 
constitutional sense ; it is obvious that the question is addressed 
exclusively to the executive judgment, and neither the legislative 
nor the judicial department can intervene to compel action if the 
executive decide against it, or to enjoin action if, in his opinion, 

the proper occasion has arisen.^ And again, if, by the 
[* 42] constitution, * laws are to take effect at a specified time 

after their passage, unless the legislature, for urgent 
reasons, shall otherwise order, we must perceive at once that the 
legislature alone is competent to pass upon the urgency of the 
alleged reasons.^ And to take a judicial instance : If a court is 

1 In exercising his power to call lative discretion, the courts cannot 
out the militia in certain exigencies, interfere with its exercise. State 
the President is the exclusive and v. Hitchcock, 1 Kan. 178; State v. 
final judge when the exigency has Boone County Court, 50 Mo. 317; 
arisen. Martin v. Mott, 12 Wheat. Patterson v. Barlow, 60 Penn. St. 54. 
29. In People v. Parker, 3 Neb. 409, The statement of legislative reasons 
s. c. 19 Am. Rep. 634, it appeared that in the preamble of an act will not 
an officer assuming to act as governor, affect its validity. Lothrop b. Stead- 
in the absence of the governor from man, 42 Conn. 583. 
the State, had issued a proclamation ^ See post, p. * 157. In Gillinwater 
convening the legislature in extraor- v. Mississippi & Atlantic Railroad 
dinary session. The governor re- Co., 13 111. 1, it was urged that 
turned previous to the time named for a certain restriction imposed upon 
the meeting, and issued a second proc- railroad corporations by the general 
lamation, revoking the first. Held, railroad law was a violation of the 
that the power of convening the legis- provision of the constitution which 
lature being a discretionary power, enjoins it upon the legislature "to 
it might be recalled before the meet- encourage internal improvements by 
ing took place. passing liberal generall laws of incor- 
How far the decision of the legisla- poration for that purpose." The 
ture that a certain act is a local act court say of this provision: " This is 
concludes the courts, see People v. a constitutional command to the leg- 
Allen, 1 Lans. 248. It is undoubted, islature, as obligatory on it as any 
that, when a case is within the legis- other of the provisions of that instru- 



CH. IV.] COKSTRUCTION OF STATE CONSTITUTIONS. 53 

required to give an accused person a trial at the first term after 
indictment, unless good cause be shown for continuance, it is 
obvious that the question of good cause is one for the court alone 
to pass upon, and that its judgment when exercised is, and must 
be from the nature of the case, final. And when in these or any- 
similar case the decision is once made, other departments or other 
officers, whatever may have b'een their own opinions, must assume 
the decision to be correct, and are not at liberty to raise any 
question concerning it, unless some duty is devolved upon them 
which presents the same question anew. 

But there are cases in which the question of construction is 
equally addressed to two or more departments of the government, 
and it then becomes important to know whether the decision by 
one is binding upon the others, or whether each is to act upon its 
own judgment. Let us suppose once more that the governor, 
being empowered by the constitution to convene the 
* legislature upon extraordinary occasions, has regarded [* 43] 
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 his proclamation. Now, the 
legislature are to enact laws upon their own view of necessity 
and expediency ; and they will refuse to pass the desired statute 
if they regard it as unwise or unimportant. But in so doing they 
indirectly review the governor's decision, especially if in refusing 

meut; but it is one which cannot be sider the liberal provisions of this law 

enforced by the courts of justice. It to them, because they are embraced 

addressesitself to the legislature alone, in the constitutional provision, as to 

and it is not for us to say whether it ask us to disregard such provisions of 

has obeyed the behest in its true spirit, it as we might regard as illiberal. 

Whether the provisions of this law are The argument proceeds upon the idea 

liberal, and tend to encourage internal that we should consider that as done 

improvements, is matter of opinion, which ought to be done'; but that 

about which men may differ; and as principle has no application here, 

we have no authority to revise legis- Like laws upon other subjects within 

lative action on the subject, it would legislative jurisdiction, it is for the 

not become us to express our views in courts to say what the law is, not 

relation to it. The law makes no what it should be." It is clear that 

provision for the construction of ca- courts cannot interfere with matters 

nals and turnpike roads, and yet they of legislative discretion. Maloy v. 

are as much internal improvements as Marietta, 11 Ohio, n. a. 639. As to 

railroads, and we might as well be self-executing provisions in general, 

asked to extend what we might con- see post, p. * 83. 



64 CON^tlTTJTIONAL LIMITATIONS. [CH. IV. 

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 final in any sense that 
would bind the legislative department to accept and act upon it 
when they are called to enter upon the performance of their duty 
in the making of laws.^ 

So also there are cases where, after the two houses of the legis- 
lature have passed upon the question, their decision is in a certain 
sense subject to review by the governor. If a bill is introduced 
the constitutionality of which is disputed, the passage of the bill 
by the two houses must be regarded as the expression of their 
judgment that, if approved, it will be a valid law. But if the 
constitution confers upon the governor a veto power, the same 
question of constitutional authority will be brought by the bill 
before him, since it is manifestly his duty to withhold approval 
from any bill which, in his opinion, the legislature ought not for 
any reason to pass. And what reason so valid as that the con- 
stitution confers upon them no authority to that end ? In aU 
these and the like cases, each department must act upon its own 
judgment, and cannot be required to do that which it regards as 
a violation of the constitution, on the ground solely that another 
department which, in the course of the discharge of its own duty, 
was called upon first to act, has reached the conclusion that it 
will not be violated by the proposed action. 

But setting aside now those cases to which we have referred, 
where from the nature of things, and perhaps from explicit terms 
of the constitution, the judginent of the department or oflScer 
acting must be final, we shall find the general rule to be, that 
whenever an act is done which may become the subject of a suit 
or proceeding in court, any question of constitutional authority 
that was raised or that might have been raised when the act 
[*44] was done will be* open for consideration in such suit or 
proceeding, and that as the courts must finally settle the 
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, since such body or officer must exercise a dele- 
1 See Opinions of Judges, 49 Mo. 216. 



CH. rV.] COKSTETJCTION OP STATE CONSTITUTIONS. 



55 



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 determination 
is necessary or practicable only when public or private rights 
would be affected thereby. They then become the subject of legal 
controversy ; and legal controversies must be settled by the courts. 
The courts have thus devolved upon them the duty to pass upon 
the constitutional validity, sometimes of legislative, and some- 
times of executive acts. And as judicial tribunals have authority, 
not only to judge, but also to enforce their judgments, the result 
of a decision against the constitutionality of a legislative or execu- 
tive act will be to render it invalid through the enforcement of the 
paramount law in the controversy which has raised the quettion.^ 



1 " When laws conflict in actual 
cases, they [the courts] must decide 
which is the superior law, and which 
must yield; and as we have seen that, 
according to our principles, every 
ofScer remains answerable for what 
he oflScially does, a citizen, believjng 
that the law he enforces is incompati- 
ble with the superior law, the con- 
stitution, simply sues the officer before 
the proper court as having unlawfully 
aggrieved him in the particular case. 
The court, bound to do justice to 
every one, is bound also to decide this 
case as a simple case of conflicting 
laws. The court does not decide 
directly upon the doings of the leg- 
islature. It simply decides for the 
case in hand, whether there actually 
are conflicting laws, and, if so, which 
is the higher law that demands obedi- 
ence, when both may not be obeyed 
at the same time. As, however, this 
decision becomes the leading decision 
for all future cases of the same import, 
until, indeed, proper and legitimate 
authority should reverse it, the ques- 
tion of constitutionality is virtually 
decided, and it is decided in a natural, 
easy, legitimate, and safe manner, 



according to the principle of the 
supremacy of the law, and the de- 
pendence of justice. It is one of the 
most interesting and important evo- 
lutions of the government of law, and 
one of the greatest protections of the 
citizen. It may well be called a very 
jewel of Anglican liberty, and one of 
the best fruits of our political civiliT 
zation." Lieber, Civil Liberty and 
Self- Government. 

" Whenever a law which the judge 
holds to be unconstitutional is argued 
in a tribunal of the United States, he 
may refuse to admit it as a rule ; this 
power is the only one which is peculiar 
to the American magistrate, but it 
gives rise to immense political influ- 
ence. Few laws can escape the 
searching analysis; for there are fevf 
which are not prejudicial to some 
private, interest or other, and none 
which may not be brought before a 
court of justice by the choice of p'ar- 
ties, or by the necessity of the case. 
But from the time that a judge haa 
refused to apply any given law in a 
case, that law loses a portion of its 
moral sanction. The persons to 
whose interest it is prejudicial learn 



56 



CONSTITUTIONAL LIMITATIONS. 



[CH. IV. 



[* 45] * The same conclusion is reached by stating in consecu- 
tive order a few familiar maxims of the law. The admin- 
istration of public justice is referred to the courts. To perform 
this duty, the first requisite is to ascertain the facts, and the 
next to determine the law applicable to such facts. The 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 
void. If, therefore, such other law, direction, or order seems to 
be applicable to the facts, but on comparison with the funda- 
mental law the latter is found to be in conflict with it, the court, 
in declaring what the law of the case is, must necessarily deter- 
mine its invalidity, and thereby in effect annul it.^ The right 
and the power of the courts to do this are so plain, 
[* 46] * and the duty is so generally — we may almost say uni- 
versally — conceded, that we should not be justified in 



that means exist for evading its au- 
thority; and similar suits are multi- 
plied until it becomes powerless. One 
of two alternatives must then be re- 
sorted to, — the people must alter the 
constitution, or the legislature must 
repeal the law." De Tocqueville, 
Democracy in America, c. 6. 

1 "It is idle to say that the au- 
thority of each branch of the govern- 
ment is defined and limited by the 
constitution, if there be not an in- 
dependent power able and willing 
to enforce the limitations. Experi- 
ence proves that the constitution is 
thoughtlessly but habitually violated; 
and the sacrifice of individual rights 
is too remotely connected with the 
objects and contests of the masses to 
attract their attention. From its 
Very position it is apparent that the 
conservative power is lodged in the 
judiciary, which, in the exercise of its 
undoubted rights, is bound to meet 
any emergency; else causes would be 
decided, not only by the legislature, 
but sometimes without hearing or 
evidence." Per Oibson, Ch. J., in 
De Chastellux v. Fairohild, 15 Penn. 
St. 18. 

"Nor will this conclusion, to use 



the language of one of our most emi- 
nent jurists and statesmen, by any 
means suppose a superiority of the 
judicial to the legislative power. It 
will only be supposing that the power 
of the people is superior to both ; and 
that where the will of the legislature, 
declared in its statutes, stands in 
opposition to that declared by the 
people in the constitution, the judges 
ought to be governed by' the latter 
rather than the former. They ought 
to regulate their decisions by the fun- 
damental laws rather than by those 
which are not fundamental. Neither 
would we, in doing this, be under- 
stood as impugning the honest inten- 
tions, or sacred regard to justice, 
which we most cheerfully accord to 
the legislature. B ut to be above error 
is to possess an entire attribute of the 
Deity; and to spurn its correction, 
is to reduce to the same degraded 
level the most noble and the meanest 
of his works." Bates v. Kimball, 
2 Chip. 77. 

"Without the limitations and re- 
straints usually found in written con- 
stitutions, the government could have 
no elements of permanence and dura- 
bility; and the distribution of its 



CH. IV.J CONSTKXTCTION OP STATE CONSTITUTIONS. 



57 



wearying the patience of the reader in quoting from the very 
numerous authorities upon the subject.^ 

* Conclusiveness of Judicial Decisions. [* 47] 

But a question which has arisen and been passed upon in one 
case may arise again in another, or it may present itself under 



powers and the vesting their exercise 
in separate departments would be an 
idle ceremony." Brown, J., in Peo- 
ple V. Draper, 15 N. Y. 558. 

1 1 Kent, 500-507; Marbury u. 
Madison, 1 Cranch, 137; Webster on 
the Independence of the Judiciary, 
Works, Vol. III. p. 29. In this 
speech Mr. Webster has forcibly set 
forth the necessity of leaving with the 
courts the power to enforce constitu- 
tional restrictions. "It cannot be 
denied," says he, " that one great 
object of written constitutions is, to 
keep the departments of government 
as distinct as possible ; and for this 
purpose to impose restraints designed 
to have that efEect. And it is equally 
true that there is no department on 
which it is more necessary to impose 
restraints than upon the legislature. 
The tendency of things is almost 
always to augment the power of that 
department in its relation to the 
judiciary. The judiciary is composed 
of few persons, and those not such as 
mix habitually in the pursuits and 
objects which most engage public 
men. They are not, or never should 
be, political men. They have often 
unpleasant duties to perform, and 
their conduct is often liable to be can- 
vassed and censured where their rea- 
sons for it are not known or cannot 
be understood. The legislature holds 
the public purse. It fixes the com- 
pensation of all other departments ; it 
apphes as well as raises all revenue. 
'It is a numerous body, and necessa- 
rily carries along with it a great force 
of public opinion. Its members are 
public men, in constant contact with 
one another and with their constit- 



uents. It would seem to be plain 
enough that, without constitutional 
provisions which should be fixed and 
certain, such a department, in case of 
excitement, would be able to encroach 
on the judiciary." "The constitu- 
tion being the supreme law, it follows, 
of course, that every act of the legis- 
lature contrary to that law must be 
void. But who shall decide this ques- 
tion ? Shall the legislature itself de- 
cide it? If so, then the constitution 
ceases to be a legal, and becomes only 
a moral, restraint upon the legislature. 
If they, and they only, are to judge 
whether their acts be conformable to 
the constitution, then the constitution 
is admonitory or advisory only, not 
legally binding; because if the con- 
struction of it rests wholly with them, 
their discretion, in particular cases, 
may be in favor of very erroneous 
and dangerous constructions. Hence 
the courts of law, necessarily, when 
the case arises, must decide on tiie 
validity of particular acts. " "With- 
out this check, no certain limitation 
could exist on the exercise of legisla- 
tive power." See also, as to the 
dangers of legislative encroachments, 
De Tocqueville, Democracy in Amer- 
ica, c. 6; Story on Const. (4th ed.) 
§ 532 and note. The legislature, 
though possessing a larger share of 
power, no more represents the sover- 
eignty of the people than either of the 
other departments; it derives its au- 
thority from the same high source. 
Bailey v. Philadelphia, &c. Railroad 
Co., 4 Harr. 402; Whittington v. 
Polk, 1 H. & J. 244; McCauley v. 
Brooks, 16 Cal. 11. 



58 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

different circumstances for the decision of some other department 
or officer of the government. It therefore becomes of the high- 
est importance to know whether a principle once authoritatively 
declared is to be regarded as conclusively settled for the guidance, 
not only of the court declaring it, but of all courts and all depart- 
ments of the government ; or whether, on the other hand, the 
decision settles the particular controversy only, so that a different 
decision may be possible, or, considering the diversity of human 
judgments, even probable, whenever in any new controversy other 
tribunals may be required to examine and decide upon the' same 
question. 

In some cases and for some purposes the conclusiveness of a 
judicial determination is, beyond question, final and absolute. A 
decision once made in a particular controversy, by the highest 
court empowered to pass upon it, is conclusive upon the parties 
to the litigation and their privies, and they are not allowed after- 
wards to revive the controversy in a new proceeding for the pur- 
pose of raising the same or any other questions; The matter in 
dispute has become res judicata; a thing definitely settled by 
judicial decision ; and the judgment of the court imports absolute 
verity. Whatever the question involved, — whether the inter- 
pretation of a private contract, the legality of an individual act, 
or the validity of a legislative enactment, — the rule of finality is 
the same. The controversy has been adjudged ; and, once finally 
passed upon, it is never to be renewed.^ It must frequently 

1 Duchess of Kingston's Case, 11 v. Schlatter, 15 S. & R. 150; Warner 
State Trials, 261; a. c. 2 Smith, v. Scott, 39 Penn. St. 274; Verner «. 
Lead. Cas. 424-; Young v. Black, 7 Carson, 66 Penn. St. 440; Kerr v. 
Cranch, 567; Chapman v. Smith, 16 Union Bank, 18 Md. 396; Whitehurst 
How. 114; Aurora City v. West, 7 ». Rogers, 38 Md. 503; Wales w. Lyon, 
Wall. 82; Tioga R. R. Co. v. Bloss- 2 Mich. 276; Prentiss v. Holbrook, 2 
burg, &c. R. R. Co., 20 Wall. 137; Mich. 372; Van Kleek v. Eggleston, 7 
The Rio Grande, 23 Wall. 458 ; Skeld- Mich. 511 ; Newberry v. Trowbridge,- 
ing V. Whitney, 3 Wend. 154 ; Ether- 13 Mich. 278; Barker v. Cleveland, 19 
edge V. Osborn, 12 Wend. 399 ; Hayes Mich. 230; Winslow v. Grindall, 2 
I). Reese, 34 Barb. 151 ; Hyatt ». Bates, Me. 64; Slade v. Slade, 58 Me. 157; 
35 Barb. 308; Harris v. Harris, 36 Crandall ». James, 6 R. I. 144; Bab- 
Barb. 88; Madox K. Graham, 2 Met. cock v. Camp, 12 Ohio, n. s. 11; 
(Ky.) 56; Porter ». Hill, 9 Mass. 34; Hawkins b. Jones, 19 Ohio, n. s. 22; 
Norton v. Doherty, 3 Gray, 372; Thur- George v. Gillespie, 1 Greene (Iowa), 
ston V. Thurston, 99 Mass. 39; Way 421; Taylor u. Chambers, 1 Iowa, 124; 
V. Lewis, 115 Mass. 26 ; Blackinton v. Wright v. Leclair, 3 Iowa, 241 ; Clark 
Blackinton, 113 Mass. 231; Witmer u. Sammons, 12 Iowa, 368; Whittaker 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 



59 



happen, therefore, that a question of constitutional law will be 
decided in a private litigation, and the parties to the controversy, 
and aU others subsequently acquiring rights under them, in the 
subject-matter of the suit, will thereby become absolutely and for 
ever precluded from renewing the question in respect to the mat- 
ter then involved. 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, 
such holding would not authorize the reopening of the old con- 
troversy in order that the final conclusion 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 how far, if at all, other individuals and the pub- 

V. Johnson Co., 12 Iowa, 595; Dwyer 
V. Goran, 29 Iowa, 126; Fairfield ». 
McNarey, 37 Iowa, 75; Eimer v. Rich- 
ards, 25 III. 289; Wells v. McClen- 
ning, 23 III. 409 ; Crow v. Bowlby, 68 
111. 23; Peay v. Duncan, 20 Ark. 85; 
Perrine v. Serrell, 30 N. J. 458; 
Weber v. Morris, &c., 86 N. J. 213; 
Fischli V. Cowan, 1 Blackf. 350; 
Denny v. Reynolds, 24 Ind. 248; Bates 
V. Spooner, 45 Ind. 489; Davenport 
V. Barnett, 51 Ind. 329; Warwick o. 
Underwood, 3 Head, 238; Jones v. 
Weathersbee, 4 Strob. 50; Hoover 
V. Mitchell, 25 Gratt. 387; Hunger- 
ford's Appeal, 41 Conn. 322; Union 
R. R. Co. V. Traube, 59 Mo. 355; Perry 
0. Lewis, 49 Miss. 443 ; Harris v. Col- 
quit, 44 Geo. 663 ; McCauley ». Har- 
groves, 48 Geo. 50; s. c. 15 Am. Rep. 
660 ; Castellow v. Guilmartin, 54 Geo. 
299; Sloan v. Cooper, 54 Geo. 486; 
Doyle V. Hallam, 21 Minn. 515 ; Phill- 
pots ». Bladsdel, 10 Nev. 19; Case ». 
New Orleans, &c. R. R., 2 Woods, 236; 
Geary v. Simmons, 39 Cal. 224; Can- 
non V. Brame, 45 Ala. 262 ; Finney v. 
Boyd, 26 Wis. 366 ; Warner u. Trow, 
36 Wis. 195 ; Ram on Legal Judgment, 
c. 14. A judgment, however, is conclu- 



sive as an estoppel as to those facts only 
without the existence and proof of 
which it could not have been rendered ; 
and if it might have been given on 
any one of several grounds, it is con- 
clusive between the parties as to nei- 
ther of them. Lea v. Lea, 99 Mass. 
493. And see Dickinson o. Hayes, 31 
Conn. 417 ; Church v. Chapin, 35 Vt- 
223; Packet Co. v. Sickles, 5 Wall. 
580; Spencer v. Dearth, 43 Vt. 98; 
Hill V. Morse, 61 Me. 541. A judicial 
sale of property by an administrator 
held conclusive in-Roderigas v. East 
R. Sav. Inst., 63 N. Y. 460, as against 
the supposed intestate himself, who 
proved not to be dead. 

^ McLean v. Hugarian, 13 Johns. 
184 ; Morgan v. Plumb, 9 Wend. 287 ; 
Wilder v. Case, 16 Wend. 583; Baker 
V. Rand, 13 Barb. 152 ; Kelley b. 
Pike, 5 Cnsh. 484 ; Hart v. Jewett, 11 
Iowa, 276; Colburn ». Woodworth, 31 
Barb. 381 ; Newberry v. Trowbridge, 
13 Mich. 278; Skildin ». Herrick, 3 
Wend. 154; Brockway v. Kinney, 2 
Johns. 210 ; Platner v. Best, 11 Johns. 
530; Phillips v. Berick, 16 Johns. 
136 ; Page v. Fowler, 37 Cal. 100. 



60 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

lie 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 from 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 
to ascertain whether the question is the same, but we shall also 
be met by the query, whether we are not concluding parties by de- 
cisions which others have obtained in fictitious controversies and by 
collusion, or have suffered to pass without sufficient consideration 
and discussion, and which might perhaps have been given other- 
wise had other parties had an opportunity of being heard. 
[* 49] * We have already seen that the force of a judgment 
does not depend upon the reasons given therefor, or upon 
the circumstance that any were or were not given. If there were, 
they may have covered portions of the controversy only, or they 
may have had such reference to facts peculiar to that case, that 
in an}' 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 

1 The question whether a judg- of litigation, is one which our subject 

ment, by force of its recitals, shall doeS not require us to discuss. The 

operate as a technical estoppel, or cases are examined fully and with 

whether it shall operate as a bar only discrimination in Robinson's Prac- 

after the proper parol evidence shall tice, Vol. VI. ; and are also discussed 

have been given to identify the subject in Bigelow on Estoppel. 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 61 

into the judicial mind, in order that we might ascertain of a surety 
that all those facts 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 litigation was conducted in entire good faith, 
and that every consideration was presented to the court which 
could properly have weight in the construction and application 
of the law. All these things, however, are manifestly impossi- 
ble ; and the law therefore wisely excludes judgments from being 
used to the prejudice of strangers to the controversy, and restricts 
their^ conclusiveness to the parties thereto and their privies.^ 
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 dis- 
tinct subject-matter.^ 

All judgments, however, are supposed to apply the existing 
law to the facts of the case ; and the reasons which are sufficient 
to influence the court to a particular conclusion in one case ought 
to be sufficient to bring it or any other court to the same conclu- 
sion in all other like cases where no modification of the law has 
intervened. There would thus be uniform rules for the adminis- 
tration of justice, and the same measure that is meted 
out * to one would be received by all others. And even [* 50] 
if the same or any other court, in a subsequent case, 
should be in doubt concerning the correctness of the decision 
which has been made, there are consequences of a very grave 
character to be contemplated and weighed before the experiment 
of disregarding it should be ventured upon. That state of things, 
when judicial decisions confiict, so that a citizen is always at a 
loss in regard to his rights and his duties, is a very serious evil ; 

1 Burrill v. West, 2 N. H. 190; 516; Floyd u. Mintsey, 5 Rich. 361; 

Davis V. Wood, 1 Wheat. 6 ; Jackson Riggins's Ex'rs v. Brown, 12 Geo. 

V. Vedder, 3 Johns. 8; Case a. Reeve, 271; Persons v. Jones, 12 Geo. 371; 

14 Johns. 79; Alexander v Taylor, 4 Robinson's Practice, Vol. VII. 134 to 

Denio, 302 ; Van Bokkelin ». Inger- 156 ; Bigelow on Estoppel, 46 et seq. 
soil, 5 Wend. 315; Smith v. Ballan- ^ Van Alstine v. Railroad Co., 34 

tyne, 10 Paige, 101; Orphan House Barb. 28; Taylor v. McCracken, 2 

V. Lawrence, 11 Paige, 80; Thomas v. Blackf. 260; Cook v. Vimont, 6 T. B. 

Hubbell, 15 N. Y. 405; Wood ». Ste- Monr. 281. See, for a discussion of 

phen, 1 Serg. & R. 175; Peterson v. this doctrine, its meaning and extent, 

Lothrop, 34 Penn. St. 223; Twambly Spencer v. Dearth, 43 Vt. 98, and the 

V. Henley, 4 Mass. 441; Este ». Strong, very full and exhaustive discussion in 

2 Ohio, 401 ; Cowles v. Harts, 3 Conn. Robinson's Practice, Vol. VII. 



62 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

and the alternative of accepting adjudged cases as precedents in 
future controversies resting upon analogous facts, and brought 
mthin the same reasons, is obviously preferable. Precedents, 
therefore-, become important, and counsel are allowed and ex- 
pected to call the attaation of the court to them, not as conclud- 
ing controversies, but as guidea to the judicial mind. Chancellor 
Kent says : " A solemn decision upon a point of law arising in 
any given case becomes an authority in a lifee ease, because it is 
the highest evidence which we can have of the law applicable to 
the subject, and the judges are bound to follow that decision so 
long as it stands unreversed, unless it can be shown that the law 
was misunderstood or misapplied in that particular case. If a 
decision has been made upon solemn argument and mature delib- 
eration, the presumption is 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 professional 
men can give safe advice to those who consult them, and people 
in general can venture to buy and trust, and to deal with each 
other. If judicial decisions were to be lightly disregarded, we 
should disturb and unsettle the great landmarks of property. 
When a rule has once been deliberately adopted and declared, it 
ought not to be disturbed unless by a court of appeal or review, 
and never by the same court, except for very urgent reasons, and 
upon a clear manifestation of error ; and if the practice were 
ptherwise, it would be leaving us in a perplexing uncertainty as 
to the law." i 

1 1 Kent, 475. And see Cro. Jao. 1 Yerg. 376 ; Palmer v. Lawretioe, 

527 ; Rex ». Cox, 2 Burr. 787 ; King 5 N. Y. 389 ; Kneeland v. Milwaukee, 

V. Younger, 5 T. R. 450 ; Gopdtitle v. 15 Wis. 458 ; Boon v. Bowers, 30 

Otway, 7 T. R. 416; Selby v. Bar- Miss. 246; Frink ». Darst, 14 111. 

dons, 3 B. & Ad. 1? ; Fletcher v. 311 ; Broom's Maxims, 109. Dr. 

Lord Somers, 3 Bing. 588 ; Hammond Lieber thinks the doctrine of the 

V. Anderson, 4 Bos. & P. 69 ; Lewis precedent especially valuable in a free 

V. Thornton, 6 Munf . 94 ; Dugan «. country. "Liberty and steady pro- 

HoUins, 13 Md. 149; Anderson v. gression require the principle of the 

Jackson, 16 Johns. 402 ; Goodell precedent in all spheres. It is one of 

V. Jackson, 20 Johns. 722 ; Bates v. the roots with which the tree of lib- 

Releyea, 23 Wend. 340; Emerson v. erty fastens in the soil of real life, 

Atwater, 7 Mich. 12 ; Nelson v. AUen, and through which it receives the sap 



CH. IV.] CONSTETTCTION OP STATE CONSTITUTIONS. 



63 



* The doctrine of stare decisis, however, is only applicar [^* 51] 
ble, in its full force, within the territorial jurisdiction of 
the courts making * the decisions, since there alone can [* 52] 



of fresh existence. It is the weapon 
by which interference is warded off. 
The principle of the precedent is emi- 
nently philosophical. The English 
Constitution would not have devel- 
oped itself without it. What is called 
the English Constitution consists of 
the fundamentals of the British pol- 
ity, laid down in custom, precedent, 
decisions, and statutes ; and the com- 
mon law in it is a far greater portion 
than the statute law. The English 
Constitution is chiefly a common-law 
constitution ; and this reflex of a con- 
tinuous society in a continuous law 
is more truly philosophical than the 
theoretic and systematic, but lifeless, 
constitutions of recent France." 
Civ. Lib. and Self-Gov. See also his 
chapter on precedents in the Her- 
meneutics. In Kelson v. Allen, 1 
Yerg. 376, where the constitution- 
ality of the " Betterment Law " came 
under consideration, the court (^White, 
J.) say : " Whatever might be my 
own opinion upon this question, not 
to assent to its settlement now, after 
two solemn decisions of this court, 
the Ijst made upwards of fourteen 
years ago, and not only no opposing 
decision, but no attempt even by any 
case, during all this time, to call the 
point again in controversy, forming 
a complete acquiescence, would be,, 
at the least, inconsistent, perhaps 
mischievous, and uncalled for by a 
correct discharge of oflBcial duty. 
Much respect has always been paid 
to the contemporaneous construction 
of statutes, and a forbidding caution 
hath always accompanied any ap- 
proach towards unsettling it, dictated 
no doubt by easily foreseen conse- 
quences attending a sudden change 
of a rule of property, necessarily in- 
troductory at least of confusion, in- 
creased litigation, and the disturbance 



of the peace of society. The most 
able judges and the greatest names 
on the bench have held this view of 
the subject, and occasionally ex- 
pressed themselves to that effect, 
either tadtly or openly, intimating 
that if they had held a part in the 
first construction they would have 
been of a different opinion ; but the 
construction having been made, they 
give their assent thereto. Thus Lord 
Ellenhorough, in 2, East, 302, re- 
marks : ' I think it is better to abide 
by that determination, than to intro- 
duce uncertainty into this branch of 
the law,, it being often more impor- 
tant to have the rule settled, than to 
determine what it shall be. I am 
not, however, convinced by the rea- 
soning in this case, and if the point, 
were new I should think otherwise.' 
Lord Mansfield, in 1 Burr. 419, says: 
' Where solemn determinations ac- 
quiesced under had settled precise 
cases, and a rule of property, they 
ought, for the sake of certamty, to 
be observed, as if they had originally 
formed a part of the text of the 
statute.' And Sir James Mansfield, 
in 4 B. & P. 69, says: ' I do not know 
how to distinguish this from the case 
before decided in the court. It is of 
greater consequence that the law 
should be as uniform as possible, 
than that the equitable claim of an 
individual should be attended to.' " 
And see People v. Cicotte, 16 Mieh. 
283. 

How far a judgment rendered by a 
court concludes, notwithstandingit was 
one given under the law of necessity, 
in consequence of an equal division ef 
the court, see Durant v. Essex Co. , 7 
Wall. 107; Morse v. Goold, 11 N. Y. 
281 ; and the cases collected in North- 
ern R. R. ». Concord R. R., 50 N. H. 
176. 



64 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

such decisions be regarded as having established any rules. 
Rulings made under a similar legal system elsewhere may be 
cited and respected for their reasons, but are not necessarily to 
be accepted as guides, except in so far as those reasons commend 
themselves to the judicial mind.^ Great Britain and the thirteen 
original States had 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 is 
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 us the opinions of able judges as to what the law is, but its 
force as an authoritative declaration must be confined to the coun- 
try for which the court sits and judges. But an English decision 
before the Revolution is in the direct line of authority ; and where 
a particular statute or clause of the constitution has been adopted 
in one State from the statutes or constitution of another, after a 
judicial construction had been put upon it in such last-mentioned 
State, it is but just to regard the construction as having been 
adopted, as well as the words ; and all the mischiefs of disregard- 
ing precedents would follow as legitimately here as in any other 
case.^ 

1 Caldwell v. Gale, 11 Mich. 77 ; 193 ; Myrick v. Hasey, 27 Me. 9 ; 
Eaontz v. Nabb, 18 Md. 549; Nel- People ». Coleman, 4 Cal. 46; Bemis 
son V. Goree, 34 Ala 565 ; Jamison v. Becker, 1 Kan. 226 ; Walker v. 
V. Burton, 43 Iowa, 282. Cincinnati, 21 Ohio, N. 8. 14 ; Hess 

2 Bond V. Appleton, 8 Mass. 472 ; v. Pegg, 7 Nev. 23 ; Freeze v. Tripp, 
Rutland v. Mendon, 1 Pick. 154; 70 111. 496; In re TuUer, 79 111. 99; 
Commonwealth v. Hartneit, 3 Gray, Ex parte Mathews, 52 Ala. 51 ; Dan- 
450 ; Turnpike Co. b. People, 9 Barb, ville v. Pace, 25 Gratt. 1. But it does 
167 ; Campbell v. Quinlin, 3 Scam, not necessarily follow that the prior 
288; Little ». Smith, 4 Scam. 402; decision construing the law must be 
Riggs V. Wilton, 13 111. 15 ; Tyler v. inflexibly followed, since the circum- 
Tyler, 19 111. 151 ; Fisher v. Deering, stances in the State adopting it may 
60111. 114; Langdon u. Applegate, 5 be so different as to require a differ- 
Ind. 327 ; Clark v. Jefferson ville, &c. ent construction. Little v. Smith, 
R. R. Co., 44 Ind. 248; Fall w. Haz- 4 Scam. 402; Lessee of Gray v. 
elrigg, 45 Ind. 576; Ingraham v. Askew, 3 Ohio, 479; Jamison v. 
Regan, 28 Miss. 213; Adams K. Field, Burton, 43 Iowa, 282. It has very 
21 Vt. 266; Drennan v. People, 10 properly been held that the legislature, 
Mich. 169 ; Daniels v. Clegg, 28 Mich, by enacting, without material altera- 
32; Harrison v. Sayer, 27 Mich. 476; tion, a statute which had been gradn- 
Pangborn o. Westlake, 36 Iowa, 546 ; ally expounded by the highest court 
Attorney-General v. Brunst, 3 Wis. of the State, must be presumed to 
787 ; Poertner v. Russell, 33 Wis. have intended that the same words 



CH, 



rv.] 



CONSTKUCTION OP STATE CONSTITUTIONS. 



65 



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

Whenever the case is such that judicial decisions which have 
been made are to be accepted as law, and followed by the courts 
in future cases, it is equally to be expected that they will be fol- 
lowed by other departments of the government also. Indeed, in 



should be received in the new statute 
in the sense which have been attrib- 
uted to them in the old. Grace v. 
McElroy, 1 Allen, 563; Cronan v. 
Getting, 104 Mass. 245 ; Low v. Blan- 
chard, 116 Mass. 272. 

1 " After an erroneous decision 
touching rights of property has been 
followed thirty or forty years, and 
even a much less time, the courts 
cannot retrace their steps without 
committing a new error nearly as 
great as the one at the first." Bran- 
son, J., in Sparrow ». Kingman, 1 
N. Y. 260. See also Emerson v. At- 
water, 7 Mich. 12; Rothschild v. Grix, 
31 Mich. 150; Loeb v. Mathis, 37 
Ind. 306. " It is true that when a 
principle of law, doubtful in its char- 
acter or uncertain in the subject- 
matter of its application, has been 
settled by a series of judicial deci- 
sions, and acquiesced in for a con- 
siderable time, and important rights 
and interests have become established 
under such decisions, courts will hesi- 
tate long before they will attempt to 
overturn the result so long established. 
But when it is apparently indifferent 
which of two or more rules is adopted, 
the one which shall have been adopted 
by judicial sanction will be adhered 



to, though it may not, at the moment, 
appear to be the preferable rule. But 
when a question involving important 
public or private rights, extending 
through all coming time, has been 
passed upon on a single occasion, and 
which decision can in no just sense be 
said to have been acquiesced in, it is 
not only the right, but the duty of the 
court, when properly called upon, to 
re-examine the questions involved, 
and again subject them to judicial 
scrutiny. We are by no means un- 
mindful of the salutary tendency of 
the rule stare decisis, but at the same 
time we cannot be unmindful of the 
lessons furnished by our own con- 
sciousness, as well as by judicial his- 
tofy, of the liability to error and the 
advantages of review." Per Smith; 
J., Pratt V. Brown, 3 Wis. 609. And 
see Kneeland v. Milwaukee, 15 Wis. 
458; Taylor v. French, 19 Vt. 49; 
Bellows V. Parsons, 13 N. H. 256 ; 
Hannel y. Smith, 15 Ohio, 134; Day 
V. Munson, 14 Ohio, N. s. 488; Green 
Castle, &c. Co. t-. State, 28 lud. 382 ; 
Harrow v. Myers, 29 Ind. 469 ; Mead 
V. McGraw, 19 Ohio, n. s. 62 ; Linn 
V. Minor, 4 Nev. 462 ; Willis v. Owen, 
43 Tex. 41, 48 ; Ram on Legal Judg, 
ment, c. 14, § 3. 



66 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

tiie great majority of cases, the officers of other departments ha-ve 
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 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 sufficient. We cannot conceive that, because the courts have 
declared an expiring corporation to have been constitutionally 
created, the legislature would be bound to renew its charter, or 
the executive to sign an act for that purpose, if doubtful of the 
constitutional authority, even though no other adverse reasons 
existed.^ 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 refrain from declaring a 
[* 64] statute * unconstitutional, because not clearly satisfied 
that it is so, 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 duty is different in the two cases, and presumptions 
may control in one which do not exist in the other. But those 
cases where new 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 decisions as authoritative, by 
each and all, can alone prevent confusion, doubt, and uncer- 
tainty, and any other course is incompatible with a true govern- 
ment of law. 

1 In the celebrated case of the ap- cision upon executive and legislative 
plication of the Bank of the United action. See Story on Const. (4th ed.) 
States for a new charter, President § 375, note. It is notorious that while 
Jackson felt himself at liberty to act the reconstruction of States was go- 
upon his own view of constitutional ing on, after the late civil war, Con- 
power, iu opposition to that pre- gress took especial pains in some 
viously declared by the Supreme cases to so shape its legislation that 
Court, and President Lincoln ex- the federal Supreme Court should 
pressed similar views regarding the have no opportunity to question and 
conclusiveness of the Dred Scott de- deny its validity. 



CH. IV.J CONSTETICTION- OF STATE CONSTITUTIONS. 67 



Construction to be Uniform. - 

A cardinal rule in dealing with written instruments is that 
they are to receive an unvarying interpretation, and that their 
practical construction is to be uniform. A constitution is not to 
be made to mean one thing at one time, and another at some sub- 
sequent time when the circumstances may have so changed as 
perhaps to make a different rule in the case seem desirable. A, 
principal share of the benefit expected from written constitutions, 
would be lost if the rules they established were so flexible as to 
bend to circumstances or be modified by public opinion. It is 
with special reference to the varying moods of public opinion, and 
with a view to putting the fundamentals of government beyond 
their control, that these instruments are framed ; and there can 
be no such steady and imperceptible change in their rules as 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 the courts recognize them ; but a court or legislature which 
should allow a change in public sentiment to influence it in 
giving to a written constitution a construction not warranted by 
the intention of its founders, would be justly chargeable with 
reckless disregard of official oath and public duty ; and if its 
course could become a precedent, these 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 law as written, leaving it to the people 
themselves to make such changes as new circumstances may 
requu-e.^ The meaning of the constitution is fixed when it is 

1 People ». Morrell, 21 Wend. 584 ; v. Taylor, 42 N. Y. 259; Slack v. 
Newell V. People, 7 N. Y. 109; Hyatt Jacobs, 8 W. Va. 612, 650. 



68 CONSTITUTIONAL LIMITATIONS. [CH. IT. 

adopted, and it is not different at any subsequent time when a 
court has occasion to pass upon it.^ 

The Intent to govern. 

The object of construction, as applied to a written constitution, 
is to give effect to the intent of the people in adopting it. In the 
case of all written laws, it is the intent of the law-giver that is 
to be enforced. But this intent is to be found in the instrument 
itself. It is to be presumed that language has been employed with 
sufficient precision to convey it, and unless examination demon- 
strates that the presumption does not hold good in the particular 
case, nothing will remain except to enfor^ce it. " Where a law is 
plain and unambiguous, whether it be expressed in general or 
limited terms, the legislature should be intended to mean what 
they have plainly expressed, and consequently no room is 
left for construction."^ Possible or even probable meanings, 

1 CampJeZ/, J., in People u.Blodgett, 394; Smith v. Thursby, 28 Md. 244; 

13 Mich. 188; Scott v. Sandford, 19 State u. Bladsdel, 4 Nev. 241 ; State ». 

How. 393. Doron, 5 Nev. 399; Hyatt ». Taylor, 

' United States!). Fisher, 2 Cranoh, 42 N. Y. 259; Johnson v. Hudson 
399; Bosley 0. Mattingley, 14 B. R.R. Co., 49 N. Y. 455; Beardstown 
Monr. 89 ; Sturgis v. Crowninshield, ». Virginia, 76 111. 34; St Louis, «S:c. 
4 Wheat. 202; Schooner Paulina's R. R. Co. ». Clark, 53Mo. 214; Mundt 
Cargo V. United States, 7 Cranch, 60; v. Sheboygan, &o. R. R. Co., 31 Wis. 
Ogden V. Strong, 2 Paine, C. C. 584; 45; Slack v. Jacobs, 8 W. Va. 612; 
United States v. Ragsdale, 1 Hemp. Hawbecker v. Hawbecker, 43 Md. 516. 
497; Southwark Bank v. Common- The remarks of Mr. Justice Branson 
wealth, 26 Penn. St. 446; Ingalls v. in People v. Purdy, 2 Hill, 35, are 
Cole, 47 Me. 530 ; McCluskey v. very forcible in showing the impolicy 
Cromwell, UN. Y. 593; Furman and danger of looking beyond the 
». New York, 5 Sandf. 16; Newell w. instrument itself to ascertain its mean- 
People, 7 N. Y. 83; People v. N. Y. ing, when the terms employed are 
Central R. R. Co., 24 N. Y. 492; positive and free from all ambiguity. 
Bidwell V. Whittaker, 1 Mich. 479; " It is said that the Constitution does 
Alexander o. Worthington, 5 Md. 471; not extend to public corporations, and 
Cantwell v. Owens, 14 Md. 215 ; Case therefore a majority vote was suffi- 
»., Wildridge, 4 Ind. -51.; Spencer v. cient. I do not so read the Constitu- 
State, 5 Ind. 49; Putnam v. FUnt, tion. The language of the clause is: 
10 Pick. 504 ; Heirs of Ludlow v. ' The assent of two-thirds of the mem- 
Johnson, 3 Ohio, 553; District Town- bers elected to each branch of the 
ship V. Dubuque, 7 Iowa, 262; Patti- legislature shall be requisite to every 
son V. Yuba, 13 Cal. 175; Ezekiel v. bill creating, continuing, altering, or 
Dixon, 3 Kelly, 146; Fn re Murphy, renewing any body politic or cor- 
3.Zab. 180; Attorney- General v. De- porate.' These words are as broad 
troit and Erin P. R. Co., Walk. Ch. in their signification as any which 



CH. IV.] CONSTRUCTION OP STATE CONSTITUTIONS. 



69 



when one is * plainly declared in the instrument itself, the 
courts are not at liberty to search for elsewhere. 

could have been selected for the occa- 
sion from our vocabulary, and there 
is not a syllable in the whole instru- 
ment tending in the slightest degree 
to limit or qualify the universality of 
the language. If the clause can be so 
construed that it shall not extend alike 
to all corporations, whether public or 
private, it may then, I think, be set 
down as an established fact that the 
English language is too poor for the 
framing of fundamental laws which 
shaR limit the powers of the legisla- 
tive branch of the government. No 
■one has, I believe, pretended that the 
Constitution, looking at that alone, 
can be restricted to any particular 
class or description of corporations. 
But it is said that we may look be- 
yond the instrument for the purpose 
of ascertaining the mischief against 
which the clause was directed, and 
thus restrict its operation. But who 
shall tell us what that mischief was? 
Although most men in public life are 
old enough to remember the time 
when the Constitution was framed 
and adopted, they are not agreed 
concerning the particular evils against 
which this clause was directed. Some 
suppose the clause was intended to 
guard against legislative corruption, 
and others that it was aimed at mo- 
nopolies. Some are of opinion that 
it only extends to private without 
touching public corporations, while 
others suppose that it only restricts 
the power of the legislature when cre- 
ating a single corporation, and not 
when they are made by the hundred. 
In this way a solemn instrument — 
for so I think the Constitution should 
be considered — is made to mean one 
thing by one man and something else 
by another, until, in the end, it is in 
danger of being rendered a mere dead 
letter; and that, too, where the lan- 
guage is so plain and explicit that it 



[*56] 



is impossible to mean more than one 
thing, unless we first lose sight of the 
instrument itself, and allow ourselves 
to roam at large in the boundless 
fields of speculation. For one, I 
dare not venture upon such a course. 
Written constitutions of government 
will soon come to be regarded as of 
little value if their injunctions may 
be thus lightly overlooked ; and the 
experiment of setting a boundary to 
power will prove a failure. We are 
not at liberty to presume that the 
framers of the Constitution, or the 
people who adopted it, did not under- 
stand the force of language." See 
also same case, 4 Hill, 384, and State 
V. King, 44 Mo. 285. Another court 
has said: " This power of construc- 
tion in courts is a mighty one, and, 
unrestrained by settled rules, would 
tend to throw a painful uncertainty 
over the effect that might be given 
to the most .plainly worded statutes, 
and render courts, in reality, the leg- 
islative power of the State. Instances 
are not wanting to confirm this. 
Judge-made law has overrode the 
legislative department. It was the 
boast of Chief Justice Pemberton, one 
of the judges of the despot Charles II., 
and not the worst even of those times, 
that he hadr entirely outdone the Par- 
liament in making law. We think 
that system of jurisprudence best and 
safest which controls most by fixed 
rules, and leaves least to the discretion 
of the judge; a doctrine constituting 
one of the points of superiority in the 
common law over that system which 
has been administered in France, 
where authorities had no force, and 
the law of eaich case was what the 
judge of the case saw fit to make it. 
We admit that the exercise of an un- 
limited discretion may, in a particular 
instance, be attended with a salutary 
result; still history informs us that 



70 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

[* 57] * " Whether we are considering an agreement between 
parties, a statute, or a constitution, with a view to its in- 
terpretation, the thing which we are to seek is the ihov^ht which it 
expresses. To ascertain this, the first resort in all cases is to the 
natural signification of the words employed, in the order of gram- 
matical arrangement in which the framers of the instrument have 
placed them. If thus regarded the words embody a definite 
meaning, which involves no absurdity and no contradiction 
between 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 the meaning of the instrument, and neither courts nor 
legislatures have a right to add to or take away from that mean- 
ing." i 

The whole Instrument to he examined. 

Nor is it lightly to be inferred that any portion of a written law 
is so ambiguous as to require extrinsic aid in its construction. 
Every such instrument is adopted as a whole, and a clause which, 
standing by itself, might seem of doubtful import, may yet be 
made plain by comparison with other clauses or portions of the 
same law. It is therefore a very proper rule of construction, that 
the whole is to he examined with a view to arriving at the true inten- 
tion of each part ; and this Sir Edward Coke regards the most 
natural and genuine method of expounding a statute.^ " If any 
section [of a law] be intricate, obscure, or doubtful, the proper 

it has often been the case that the length by Mr. Austin, in his Province 

arbitrary discretion of a judge was of Jurisprudence, 

the law of a tyrant, and warns us that i Newell ». People, 7 N. Y. 9, 97, 

it may be so again." Perfcms, J., in per Johnson, J. And see Den v. 

Spencer u. State, 5 Ind. 41, 46. Reid, 10 Pet. 524; Greencastle Town- 

" Judge-made law," as the phrase is ship u. Black, 5 Ind. 569; Bartlett v. 

here employed, is that made by judi- Morris, 9 Port. 266 ; Leonard v. Wise- 

cial decisions which construe away man, 31 Md. 204, per Bartol, Ch. J. ; 

the meaning of statutes, or find mean- Way v. Way, 64 111. 406 ; Mc Adoo 

ings in them the legislature never v. Benbow, 63 N. C. 464; Hawkins v. 

held. The phrase is sometimes used Carrol, 50 Miss. 735; Cearfossw. State, 

as meaning, simply, the law that be- 42 Md. 403; Douglas n. Freeholders, 

comes established by precedent. The &c., 38 N. J. 214; Broom's Maxims 

uses and necessity of judicial legisla- (6th Am. edi), 551, marg. 

tion are considered and explained at ^ Co. Lit. 381 o. 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 71 

mode of discovering its true meaning is by comparing it with the 
other sections, and finding out the sense of one clause by the 
words or obvious intent of another." ^ And in making this 
comparison it is not to be supposed that any words have been em- 
ployed without occasion, or without intent that they should 
have effect as part of * the law. The rule applicable here [* 58] 
is, that effect is to be given, if possible, to the whole instru- 
ment, and to every section and clause. If different portions seem 
to conflict, the courts must harmonize them, if practicable, and 
must lean in favor of a construction which will render every 
word operative, rather than one which may make some idle and 
nugatory.^ 

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

1 Stowell V. Lord Zonch, Plowd. Branson, J. ; Greencastle Township v, 

365; Chance v. Marion County, 64 111. Black, 5 Ind. 557 ; Green v. Weller, 

66 ; 'Broom's Maxims, 521. 32 Miss. 650. 

" Attorney- General ». Detroit and * It is a general rule, in the con- 
Erin Plank Road Co., 2 Mich. 138; struction of -writings, that, a general 
People V. Bums, 5 Mich. 114; District intent appearing, it shall control the 
Township v. Dubuque, 7 Iowa, 262 ; particular intent ; but this rule must 
Manly v. State, 7 Md. 135 ; Parkinson sometimes give way, and effect must 
t). State, 14 Md. 184 ; Belleville Rail- be given to a particular intent plainly 
road Co. v. Gregory, 15111. 20; Ogden expressed in one part of a oonstitu- 
V. Strong, 2 Paine, C. C. 584; Ryegate tion, though apparently opposed to a 
V. Wardsboro, 30 Vt. 746; Brooks u. general intent deduced from other 
Mobile School Commissioners, 31 Ala. parts. Warren v. Sherman, 5 Tex. 
227; Den v. Dubois, 16 N. J. 985; 441. In Quick u. Whitewater Town- 
Den V. Schenck, 8 N. ,1. 34; Bigelow ship, 7 Ind. 570, it was said that if 
V. W. Wisconsin R. R., 27 Wis. 478; two provisions of a written coustitu- 
Gas Company v. Wheeling, 8 W. Va. tion are irreconcilably repugnant, that 
320. which is last in order of time and in 

* Wolcott V. Wi'gton, 7 Ind. 49; local position is to be preferred. 
People V. Purdy, 2 Hill, 36, per 



72 



CONSTITUTIONAL LIMITATIONS. 



[CH. rv. 



In interpreting clauses we must presume that words have been 
employed in their natural and ordinary meaning. Says Marshall, 
Ch. J.: "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 understood what they meant." ^ This 
is but saying that no forced or unnatural construction is to be put 

upon their language ; and it seems so obvious a truism 
[* 59] that one * expects to see it universally accepted without 

question ; but the attempt is made so often by interested 
subtlety and ingenious refinement to induce the courts to force 
from these instruments a meaning which their framers never held, 
that it frequently becomes necessary to re-declare this fundamen- 
tal iiiaxim.^ Narrow and technical reasoning is misplaced when 



1 Gibbons v. Ogdeh, 9 Wheat. 
188. See Settle v. Van Enrea,' 49 
N. Y. 281 ; Jenkins v. Ervin, 8 Heisk. 
456 ; Way v. Way, 64 111. 406 ; Stuart 
V. Hamilton, 66 111. 253; Hale v. 
Everett, 53 N. H. 1. 

2 State V. Mace, 5 Md. 337 ; Manly 
V. State, 7 Md. 135 ; Green ». Weller, 
32 Miss. 650; Greencastle Town.ship 
V. Black, 5 Ind. 570; People v. N. Y. 
Central Railroad Co., 34 Barb. 137, 
and 24 N. Y. 488; Story on Const. 
§ 453. " The true sense in which 
■words are used in a statute is to be 
ascertained generally by taking them 
in their ordinary and popular signifi- 
cation, or, if they be terms of art, in 
their technical signification. But it 
is also a cardinal rule of exposition, 
that the intention is to be deduced 
from the whole and every part of 
the statute, taken and compared to- 
gether, from the words of the context, 
and such a construction adopted as 
■will best effectuate the intention of 
the law-giver. One part is referred 
to in order to help the construction of 
another, and the intent of the legis- 
lature is not to be collected from any 
particular expression, but from a 
general view of the whole act. 
Dwarris, 658, 698, 702, 703. And 
when it appears that the framers 
have used a word in a particular sense 
generally in the act, it will be pre- 



sumed that it was intended to be used 
in the same sense throughout the act, 
unless an intention to give it a dif- 
ferent signification plainly appears in 
the particular part of the act alleged 
to be an exception to the general 
meaning indicated. Dwarris, 704 et 
seq. When words are used to which 
the legislature has given a plain and 
definite import in the act, it would 
be dangerous to put upon them a 
construction which would amount to 
holding that the legislature did not 
mean what it has expressed. It fol- 
lows from these principles that the 
statute itself furnishes the best means 
of its own exposition ; and if the 
sense in which words were intended 
to be used can be clearly ascertained 
from all its parts and provisions, the 
intention thus indicated shall prevail, 
without resorting to other means of 
aiding in the construction. And 
these familiar rules of construction 
apply -with at least as much force 
to the construction of written con- 
stitutions as to statutes; the former 
being presumed to be framed ■with 
much greater care and consideration 
than the latter." Green v. Weller, 
32 Miss. 678. The argument ah 
inconvenienti cannot be suffered to 
influence the courts by construction 
to prevent the evident intention. 
Chance v, Marion County, 64 111. 66. 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 73 

it is brought to bear upon an instrument framed by the people 
themselves, for themselves, and designed as a chart upon which 
every man, learned and unlearned, may be able to trace the lead- 
ing principles of government. 

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

1 It is quite possible, however, in . liament. She was represented by the 
applying constitutional maxims, to members for the county of Kent, of 
overlook entirely the reason upon which the thirteen provinces were a 
which they rest, and "considering part and parcel ; for in their charters 
merely the letter, go but skin deep they were to hold of the inanor of 
into the meaning." On the great Greenwich in Kent, of which manor 
debate on the motion for withdrawing they were by charter to be parcel I 
the confidence of Parliament from^ The opinion, it is said, "raised a 
the ministers, after the surrender of v^y loud laugh," but Sir James con- 
Cornwallis, — a debate which called tinued to support it, and concluded 
out the best abilities of Fox and Pitt by declaring that he would give the 
as well as of the ministry, and nee- motion a hearty negative. Thus 
essarily led to the discussion of the would he have settled a great princi- 
priraary principle in free government, pie of constitutional right, for which 
that taxation and representation shall a seven years' bloody war had been 
go together, — Sir James Mariott waged, by putting it in the form of 
rose, and with great gravity pro- a meaningless legal fiction. Han- 
ceeded to say, that if taxation and sard's Debates, Vol. XXII. p. 1184. 
representation were to go hand in Lord Mahon, following Lord Camp- 
hand, then Britain had an undoubted bell, refers the origin of this won- 
right to tax America, because she derful argument to Mr. Hardinge, a 
was represented in the British Par- Welsh judge, and nephew of Lord 



74 CONSTITUTIONAL LIMITATIONS. [CH. IV. 



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 
possible, may be made in the system of common-law rules, but 

only that for its definitions we are to draw from that great 
[* 61] fountain, and that, in judging what it means, we * are to 

keep in mind that it is not the beginning of law for the 
State, but that it assumes the existence of a well-understood 
system, which is still to remain in force and be administered, but 
under such limitations and restrictions as that instrument imposes. 
It is a maxim with the courts that statutes in derogation of the 
common law shall be construed strictly ; ^ a maxim which we 
fear is sometimes perverted to the overthrow of the legislative 
intent ; but there can seldom be either propriety or safety in 
applying this maxim to constitutions. When these instruments 
assume to make any change in the common law, the change 
designed is generally a radical one ; but as they do not go min- 
utely into particulars, as do statutes, it will sometimes be easy to 
defeat a provision, if courts are at liberty to say that they will 
presume against any intention to alter the common law further 
than is expresslj'- declared. A reasonable construction is what 
such an instrument demands and should receive ; and the real 
question is, what the people meant, and not how meaningless their 
words can be made by the application of arbitrary rules.^ 

Camden ; 7 Mahon's Hist. 139. He inheritance, or devise, shall be and 

was said to have been a good lawyer, remain the estate and property of 

but must have read the history of his such female, and shall not be liable 

country to little purpose. for the debts, obligations, or engage- 

1 Broom's Maxims, 33 ; Sedg. on ments of her husband, and may be 

Stat. & Const. Law, 313. See Har- devised or bequeathed by her as if 

rison ». Leach, 4 W. Va. 883. she were unmarried," it was held that 

* Under a clause of the constitu- a married woman could not sell her 

tion of Michigan which provided that personal property without the consent 

" the real and personal estate of every of her husband, inasmuch as the 

female acquired before marriage, and power to do so was not expressly 

all property to which she may after- conferred, and the clause, being in 

wards become entitled, by gift, grant, derogation of the common law, was 



CH. IV.] CONSTETJCTION OF STATE CONSTITUTIONS. 75 

*As a general thing, it is to be supposed that the same [* 62] 
word is used in the sam^ sense wherever it occurs in a 
constitution.^ Here again, however, great caution must be ob- 
served iu applying an arbitrary rule ; for, as Mr. Justice Story 
has well observed, " It does not follow, either logically or gram- 
matically, that because a word is found in one connection in the 
Constitution with a definite sense, therefore the same sense is to 
be adopted in every other connection in which it occurs. This 
would be to suppose that the framers weighed only the force of 
single words, as philologists or critics, and not whole clauses and 
objects, as statesmen and practical reasoners. And yet nothing 
has been more common than to subject the Constitution to this 
narrow and mischievous criticism.^ Men of ingenious and subtle 
minds, who seek for symmetry and harmony in language, having 
found in the Constitution a word used in some sense, which falls 
in with their favorite theory of interpreting it, have made that the 
standard by which to measure its use in every other part of the 
instrument. They have thus stretched it, as it were, on the bed 
of Procrustes, lopping off its meaning when it seemed too large 
for their purposes, and extending it when it seemed too short. 
They have thus distorted it to the most unnatural shapes, and 
crippled where they have sought only to adjust its proportions 

not to be extended by construction. 10 Mich. 333; McKee v. Wilcox^ 
Brown «. Fifleld, 4 Mich. 322. The 11 Mich. 358; Farr v. Sherman, 11 
danger of applying arbitrary rules Mich. 83 ; Watson v. Thurber, 11 
in the construction of constitutional Mich. 457; Burdeno v. Amperse, 
principles might well, as it seems to 14 Mich. 91; Tong v. Marvin, 15 
us, be illustrated by this case. For Mich. 60; Tillman v. Shackleton, 
while on the one hand it might be 15 Mich. 447; Devries v. Conklin, 22 
contended that, as a provision in Mich. 255; Rankin k. West, 25 Mich, 
derogation of the common law, the 195. The common law is certainly 
one quoted should receive a strict to Be kept in view in the interpre- 
construction, on the other hand it tation of such a clause, since other- 
might be insisted with perhaps equal wise we do not ascertain the evil 
reason that, as a remedial provision, designed to be remedied, and perhaps 
in furtherance of natural right and are not able to fully understand and 
justice, it should be liberally con- explain the terms employed; but it 
strued, to effect the beneficial pur- is to be looked at with a view to the 
pose had in view. Thus arbitrary real intent, rather than for the pur- 
rules, of directly opposite tendency pose of arbitrarily restraining it. See 
and force, would be contending for Bishop, Xaw of Married Women, 
the mastery in the same case. The §§ 18-20 and cases cited, 
subsequent decisions under the same ^ Brien v. Williamson, 8 Miss. 14. 
provision do not appear to have fol- ^ See remarks of Johnson, J., in 
lowed this lead. See White v. Zane, Ogden v. Saunders, 12 Wheat. 290. 



76 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

according to their own opinions." ^ And he gives many instances 
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-en- 
acts in the same words provisions which it supersedes, it is a rea- 
sonable presumption that the purpose was not to change the law 
in those particulars, but to continue it in uninterrupted opera- 
tion. This is the rule in the case of statutes,^ and it sometimes 
becomes important, where rights had accrued before the revision 
or amendment took place. Its application to the case of an 
amended or revised constitution would seem to be unquestionable. 

Operation to be Prospective. 

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

1 Story on Const. § 454. And Broom's Maxims, 28; post, p. *370 

see Cherokee Nation !>. Georgia, 5 and note. 
Pet. 19. * In Allbyer v. State, 10 Ohio, 

^ Laude v. Chicago, &c. R. R. Co., n. s. 588, a question arose under the 

33 Wis. 640 ; Blackwood «. Van Vleit, provision of the constitution that " all 

30 Mich. 118. laws of a general nature shall have a 

* Moon V. Burden, 2 Exch; 22. uniform operation throughout the 

See Dash v. Van Kleek, 7 Johns. State." Another clause provided 

477 ; Brown v. Wilcox, 14 S. & M. that all laws then in force, not incon- 

127; Price v. Mott, 52 Penn. St. 31S; sistent with the constitution, should 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 77 



Implications. 

The implications from the provisions of a constitution are some- 
times exceedingly important, and have large influence upon its 
construction. In regard to the Constitution of the United States 
the rule has been laid down, that where a general power is con- 
ferred or duty enjoined, every particular power necessary for the 
exercise of the one, or the performance of the other, is also con- 
ferred.^ The same rule has been applied to the State constitu- 
tion, with an important modification, by the Supreme. Court of 
Illinois. " That other powers than those. expressly granted may 
be, and often are, conferred by implication, is too well 
settled to be * doubted. Under every constitution impli- [* 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 and flowing from the great and impor- 
tant ones which are expressly granted. It is therefore established 
as a general rule, that when a constitution gives a general power, 
or enjoins a duty, it also gives, by implication, every particular 

continue in force until amended or ished to avoid, if possible, such an 
repealed. Allbyer was convicted and interpretation as would give a statute 
sentenced to imprisonment under a a retrospective operation, has but a 
crimes act previously in force, ap- limited application, if any, to the con- 
plicable to Hamilton County only, struction of a constitution. When, 
and the question was, whether that therefore, we read in the provision 
act was not inconsistent with the under consideration, that the stock- 
provision above quoted, and therefore holders of every banking corporation 
repealed by it. The court held that shall be subject to a certain liability, 
the provision quoted evidently had we are to attribute to the language its 
regard to future and not to past leg- natural meaning, without inquiring 
islation, and -therefore was not re- whether private interests may not be 
pealed. A similar decision was made prejudiced by such a sweeping man- 
in State V. Barbee, 3 Ind. 258. See date." The remark was obiter, as it 
also State v. Thompson, 2 Kan. was found that enough appeared in 
432; Slack v. Maysville, &c. R R. Co., the constitution to show clearly that 
13 B. Monr. 1; States. Macon County it was intended to apply to existing, 
Court, 41 Mo. 453; N. C. Coal Co. v. as well as to subsequently created, 
G. C. Coal & Iron Co., 37 Md. 557. banking institutions. 
In Matter of Oliver Lee & Co. 's Bank, i Story on Const. § 430. See 
21 N. Y. 12, Denio, J., says: "The also United States «. Fisher, 2 
rule laid down in Dash u. Van Kleek, Cranch, 358; McCuUoch v. Maryland, 
7 Johns. 477, and other cases of that 4 Wheat. 428; North-western Fertil- 
class, by which the courts are admon- izing Co. v. Hyde Park, 70 111. 634. 



78 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

power nec essary for the exercise of the one or the enjoyment of 
the other. The implication under this rule, however, must be a 
necessary, not a conjectural or argumentative one. And it is 
further modified by another rule, that where the means for the 
exercise of a granted power are given, no other or different means 
can be implied, as being more effective 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 a power is granted in 
general terms, the power is to be construed as coextensive with 
the terms, unless some clear restriction upon it is deducible [ex- 
pressly or by implication] from the context."^ This rule has been 
so frequently applied as a restraint upon legislative encroachment 
upon the grant of power to the judiciary, that we shall content 
ourselves in this place with a reference to the cases collected 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 
against legislative interference, to add to the condition, or to 
extend the penalty to other cases. On this ground it has been 
held by the Supreme Court of Maryland, that where the consti- 
tution defines the qualifications of an officer, it is not in the power 
of the legislature to change or superadd to them, unless the power 
to do so is expressly or by necessary implication conferred by the 
constitution itself.* Other cases recognizing the same principle 
are referred to in the note.^ 

1 Field ». People, 2 Scam. 83. See State v. Staten, 6 Cold. 243; Davies 
Fletcher v. Oliver, 25 Ark. 298. ». McKeeby, 5 Nev. 369 ; McCafferty 

2 Story on Const. §§424-426. See v. Guyer, .59 Penn. St. 109; Quin v. 
Du Page County v. Jenks, 65 111. 275. State, 35 Md. 485; Clayton v. Harris, 

8 See post, pp. * 87-116. 7 Nev. 64; Randolph v. Good, 3 W. 

* Thomas v. Owens, 4 Md. 189. Va. 551 ; nor shorten the constitu- 
And see Barker t). People, 3 Cow. 686; tional term of an office: Howard v. 
Matter of Dorsey, 7 Port. 293. State, 10 Ind. 99; Gotten v. Ellis, 7 

* The legislature cannot add to the Jones, Law, 545 ; and see po.< p. * 276, 
constitutional qualifications of voters: note; nor extend the constitutional 
Risono.Farr, 24 Ark. 161; St. Joseph, term: People v. Bull, 46 N. Y. 57; 
&c. R. R. Co. V. Buchanan County Goodin v. Thoman, 10 Kan. 191; 
Court, 39 Mo 485; State v. Williams, nor add to the constitutional grounds 
5 Wis. 308; State v. Baker, 3S Wis. for removing an officer: Lowe w. Com- 
71; Monroe u. Collins, 17 Ohio, n. s. monwealth, 3 Met. (Ky.) 237; Brown 
665; State v. Symonds, 57 Me. 148; v. Grover, 6 Bush, 1; nor change the 



CH. IV.] CONSTKUCTION OF STATE CONSTITUTIONS. 79 



* The Light which the Purpose to be accomplished may [* 65] 
afford in Construction. 

The considerations thus far suggested are such as have no 
regard to extrinsic circumstances, but are those by the aid of 
which we seek to arrive at the meaning of the constitution from 
an examination of the words employed. It is possible, how- 
ever, that after we shall have made use of all the lights which 
the instrument itself affords, there may still be doubts to clear 
up and ambiguities to explain. Then, and only then, are we 
warranted in seeking elsewhere for aid. We are not to import 
difficulties into a constitution, by a consideration of extiinsic 
facts, 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 
aids which may be resorted to, and which are more or less satis- 
factory in the light they afford. Among these aids is a contem- 
plation of the object to be accomplished or the mischief designed to 
be remedied or guarded against by the clause in which the ambigu- 
ity is met with.^ " When we once know the reason which alone 
determines the will of the law-makers, we ought to interpret and 
apply the words used in a manner suitable and consonant to that 
reason, and as will be best calculated to effectuate the intent. 
Great caution should always be observed in the application of 
this rule to particular given cases ; that is, we ought always to be 
certain that we do know, and have actually ascertained, the true 
and only reason which induced the act. It is never allowable to 

compensation prescribed by the con- note. A legislative extension of an 

stitution: King v. Hunter, 65 N. C. elective office is void as applied to 

603; nor provide for the choice of incumbents. People u. McKinney, 52 

officers a different mode from that N. Y. 374. 

prescribed by the constitution: Peo- It is not unconstitutional to allow 

pie ». Raymond, 37 N. Y. 428; Da- the governor to supply temporary 

voy V. New York, 35 Barb. 264 ; 22 vacancies in offices which under the 

How. Pr. 226; People v. Blake, 49 constitution are elective. Sprague u. 

Barb. 9 ; People v. Albertson, 55 N. Brown, 40 Wis. 612. 

Y. 50 ; Opinions of Justices, 1 17 Mass. ^ Alexander «. Worthington, 5 Md. 

603; State «. Goldspecker, 40 .is. 471; District Township v. Dubuque, 

124; nor confer the characteristic 7 Iowa, 262. See Smith ». People, 

duties of an officer upon another: 47 N. Y. 330; People v. Potter, 47 N. 

Warner v. People, 2 Denio, 272; Peo- Y. 375; Ball v. Chad wick, 46 Ul. 28; 

pie V. Albertson, iupra ; post, p. * 277, Sawyer v. Insurance Co., 46 Vt. 697. 



80 CONSTITTTTIONAIi LIMITATIONS. [CH. IV. 

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 clue to the real meaning of the 
ambiguous provision,^ and it is especially important to look into 
it if the constitution is the successor to another, and in the par- 
ticular in question essential changes have apparently been made.^ 

[* 66] * Proceedings of the Constitutional Gonvevition. 

When the inquiry is directed to ascertaining the mischief de- 
signed to be remedied, or the purpose sought to be accomplished 
by a particular provision, it may be proper to examine the pro- 
ceedings of the convention which framed the instrument.* 
Where the proceedings clearly point out the purpose of the pro- 
vision, the aid will be valuable and satisfactory ; but where the 
question is one of abstract ineaning, it will be difficult to derive 
from this source much reliable assistance in interpretation. 
Every member of such a convention acts upon such motives and 
reasons as influence him personally, and the motions and debates 
do not necessarily indicate the purpose of a majority of a conven- 
tion in adopting a particular clause. It is quite possible for a clause 
to appear so clear and unambiguous to the members of a con- 
vention as to require neither discussion nor illustration ; and the 
few remarks made concerning it in the convention might have a 
plain tendency, to lead directly away from the meaning in the 
minds of the majority. It is equally possible for a part of the 
members to accept a clause in one sense and a part in another. 
And even if we were certain we had attained to the meaning of 
the convention, it is by no means to be allowed a controlling force, 
especially if that meaning appears not to be the one which the 

1 Smith on Stat, and Const. Con- s People v. Blodgett, 13 Mich. 127, 
struction, 634. See also remarks of 147. 

Branson, J., in Purdy v. People, 2 * Per Walworth, Chancellor, Cou- 

Hill, 35-37. tant v. People, 11 Wend. 518, and 

2 Baltimore!). State, 15 Md. 376; Clark v. People, 26 Wend. 602; per 
Henry v. Tilson, 19 Vt. 447; Hamil- Branson, J., Purdy v. People, 2 Hill, 
ton 0. St. Louis County Court, 15 Mo. 37; People v. N. Y. Central Railroad 
30; People v. Gies, 25 Mich. 83; Ser- Co., 24 N. Y. 496. See State w. Ken- 
vis V. Beatty, 32 Miss. 52; Bandel v. non, 7 Ohio, n. s. 563. 

Isaac, 13 Md. 302 ; Story on Const. 
§428. 



CH. IV.J CONSTETTCTION OF STATE CONSTITUTIONS. 81 

words would most naturally and obviously convey.^ For as 
the constitution does not derive its force from the convention 
which framed, but from the people who ratified it, the intent to 
be arrived at is that of the people, and it is not to be supposed 
that they have looked for any dark or abstruse meaning in the 
words employed, but rather that they have accepted them in the 
sense most obvious to the common understanding, and ratified 
the instrument in the belief that that was the sense designed to 
be conveyed.2 These proceedings therefore are less conclusive 
of the proper construction of the instrument than are legislative 
proceedings of the proper construction of a statute ; since 
in the latter case it is the intent of the * legislature we [* 67] 
seek, while in the former we are endeavoring to arrive at 
the intent of the people through the discussions and deliberations 
of their representatives. The history of the calling of the con- 
vention, the causes which led to it, and the discussions and issues 
before the people at the time of the election of the delegates, will 
sometimes be quite as instructive and satisfactory as any thing to 
be gathered from the proceedings of the convention. 

Contemporaneous and Practical Construction. 

An important question which now suggests itself is this : How 
far the contemporaneous interpretation, or the subsequent practi- 
cal construction of any particular provision of the constitution, is 
to have weight with the courts when the time arrives at which a 
judicial decision becomes necessary. Contemporaneous 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 understanding, when nothing has been done under 
the provision in question, must always of necessity be vague and 
indecisive. But where there has been a practical construction, 
which has been acquiesced in for a considerable period, consider- 
ations in favor of adhering to this construction sometimes present 

1 Taylor v. Taylor, 10 Minn. 126. = State v. Mace, 5 Md. 348; Itianly 
And see Eakin v. Racob, 12 S. & R. v. State, 7 Md. 147 ; Hills v. Chicago, 
352; Aldridge v. Williams, 3 How. 1; 60111. 86; Beardstown v. Virginia, 76 
State ». Doron, 5 Nev. 399. 111.* 34. 

6 



82 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

themselves 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 inconvenienti 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, 
[* 68] * commencing with the organization of the government. 
In Martin v. Hunter's Lessee,^ Justice Ay^ory, after hold- 
ing that the appellate power of the United States extends to cases 
pending in the State courts, and that the 25th section of the 
Judiciary Act, which authorized its exercise, was supported by 
the letter and spirit of the Constitution, proceeds to say : " Strong 
as this conclusion stands upon the general language of the Con^ 
stitution, it may stiU derive support from other sources. It is an 
historical fact, that this exposition of the Coiistitution, 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 Judiciary Act was submitted to the deliberations 
of the First Congress, composed, as it was, not only of men of 
great learning and ability, but of men who had acted a principal 
part in framing, supporting, or opposing that Constitution, the 
same exposition was explicitly declared and admitted by the 
friends and by the opponents of that system. It is an historical 
fact, that the Supreme Court of the United States have from time 
to time sustained this appellate jurisdiction in a great variety of 
cases, brought from the tribunals of many of the most important 

1 1 Cranch, 299. 

2 1 Wheat. 351. See Story on Const. §§ 405-408. 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 83 

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 by the Su- 
preme Court through so long a period, do, as we think, place the 
doctrine upon a foundation of authority which cannot be shaken 
without delivering over the subject to perpetual and irremediable 
doubts." The same doctrine was subsequently supported by 
Chief Justice MargJiall in a case involving the same point, and 
in which he says that " great weight has always been attached, 
and very rightly attached, to contemporaneous exposition." ^ 

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 
subject to * execution lands and other property not thus [* 69] 
subject by the State laws in force at that time, were con- 
stitutional ; and Mr. Justice Thompson,in language similar to that 
of Chief Justice Marshall in the preceding case, says : " If any 
doubt existed whether the act of 1792 vests such power in the 
courts, or with respect to its constitutionality, the practical con- 
struction given to it ought to have great weight in determining 
both questions." And Mr. Justice Johnson assigns a reason for 
this in a subsequent case : " Every candid mind will admit that 
this is a very different thing from contending that the frequent 
repetition of wrong will create a right. It proceeds upon the 
presumption that the contemporaries of the Constitution have 
claims to our deference on the question of right, because they 
had the best opportunities of informing themselves of the under- 
standing of the framers of the Constitution, and of the sense put 
upon it by the people when it was adopted by them." " Like 
views have been expressed by Chief Justice White in a recent 
decision.* 

Great deference has been paid in all cases to the action of the 

1 Cohens v. Virginia, 6 Wheat. 418. * Minor w. Happersett, 21 Wall. 

2 10 Wheat. 63. 162. And see Collins v. Henderson, 
8 Ogden V. Saunders, 12 Wheat. 11 Bush, 74, 92. 

290. See Pike ». Megoun, 44 Mo. 499 ; 
State V. Parkinson, 5 Nev. 15. 



84 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

executive department, where its officers have been called upon, 
under the responsibilities of their official oaths, to inaugurate a 
new system, and where it is to be presumed they have carefully 
and conscientiously weighed all considerations, and endeavored 
to keep within the letter and the spirit of the Constitution. If 
the question involved is really one of doubt, the force of their 
judgment, especially in view of the injurious consequences that 
may result from disregarding it, is fairly entitled to turn the scale 
in the judicial mind.^ 

Where, however, no ambiguity or doubt appears in the law, we 
think the same rule obtains here as in other cases, that the court 
should confine its attention to the law, and not allow extrinsic 
circumstances to introduce a difficulty where the 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. " Contemporary 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 limitations. 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 judges, the court say : " It is suffi- 
cient to observe that practice and acquiescence under it for a 

1 Union Insurance Co. v. Hoge, Lapice, 8 How. 68 ; Bissell v. Penrose, 

21 How. 66; 'Edward's Lessee o. 8 How. 336 ; Troup u. Haight, Hopk. 

Darby, 12 Wheat. 210; Hughes v. 267; United States v. Gilmore, 8 

Hughes, 4 T. B. Monr. 42; Chambers Wall. 330; Hedgecook v, Davis, 64 

V. Fisk, 22 Tex. 504; Britton v. N. C. 652; Lafayette, &o. R. R. Co. 

Ferry, 14 Mich. 66; Bay City v. State v. Geiger, 34 Ind. 203; Bunn v. Peo- 

Treasurer, 23 Mich. 499; Plummer v. pie, 45 111. 397; Scanlan v. Childs, 33 

Plummer, 37 Miss. 185 ; Burgess v. Wis. 663 ; Fairbault v. Misener, 20 

Pue, 2 Gill, 11; State v. Mayhew, Minn. 396. 

2 Gill, 487; Coutant ». People, 11 » Story on Const. § 407. And see 

Wend. 511; People ». Dayton, 55 N. Evans v. Myers, 25 Penn. St. 116; 

Y. 367; Baltimore v. State, 15 Md. Sadler v. Langham, 34 Ala. 311; 

376 ; Farmers' and Mechanics' Bank Barnes v. First Parish in Falmouth, 

V. Smith, 3 S. & R. 63; Norris». Cly- 6 Mass. 417; Union Pacific R. R. Co. 

mer, 2 Penn. St. 277 ; Moers v. City v. United States, 10 Ct. of CI. Rep. 

of Reading, 21 Penn. St. 188; Wash- 548; s. c. in error, 91 U. S. Rep. 72. 
ington V. Page, 4 Cal. 388; Surgett v. » 1 Cranch, 299. 



CH. IV.] CONSTRUCTION OF STATE CONSTITXTTIONS. 86 

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 practical 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 Court of Massachusetts in one case where large and valu- 
able estates depended upon a particular construction of a statute, 
and very great mischief would follow from changing it. The court 
said that, " although if it were now res integra, it might be very 
difficult to maintain such a construction, yet at this ,day the argu- 
ment ab inconvenienti applies with great weight. We cannot shake 
a principle which in practice has so long and so extensively pre- 
vailed. If the practice originated in error, yet the error is now so 
common that it must have the force of law. The legal ground on 
which this provision is now supported is, that long and continued 
usage furnishes a contemporaneous construction which must pre- 
vail over the mere technical import of the words." ^ Language 
nearly as strong was also used by the Supreme Court of Maryland, 
where the point involved was the possession of a certain power by 
the legislature, which it had constantly exercised for nearly seventy 
years.^ 

It is believed, however, that in 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 judical tri- 
bunals to enforce it. A power is frequently yielded to merely 

1 Kogers v. Goodwin, 2 Mass. 478. legal tender ought not to be treated 
See also Fall o. Hazelrigg, 45 Ind. by a State court as open to discussion 
576; Scanlan v. Childs, 33 Wis. 668. after the notes had practically con- 

2 State V. Mayhew, 2 Gill, 487. stituted the currency of the country 
In Essex Co. t>. Pacifiq Mills, 14 Allen, for five years. At a still later day, 
389, the Supreme Court of Massa- however, the judges of the Supreme 
chusetts expressed the opinion that Court of the United States held these 
the constitutionality of. the acts of acts void, though they afterwards 
Congress making treasury notes a receded from this position. 



■86 



CONSTITUTIONAL LIMITATIONS. 



[CH. IV. 



because it is claimed, and it may be exercised for a long period, 
in violation of the constitutional prohibition, without the mischief 
which the Constitution was designed to guard against appearing, 
or without any one being sufficiently interested in the subject to 
raise the question ; but these circumstances cannot be allowed to 
sanction a clear infraction of the Constitution.^ We think we 
allow to contemporary and practical construction its full legitimate 
force when we suffer it, where it is clear and uniform, to solve in 
its own favor the doubts which arise on reading the instrument 
to be construed.^ 



' See further, on this suhjeot, the 
case of Sadler v. Langhara, 34 Ala. 
311, 334; People v. Mien, 42 N. Y. 
384. 

^ There are cases which clearly go 
further than any we have quoted, and 
which sustain legislative action which 
they hold to he usurpation, on the sole 
ground of long acquiescence. Thus 
in Brigham v. Miller, 17 Ohio, 446, 
the question was, Has the legislature 
power to grant divorces? The court 
say: " Our legislature have assumed 
and exercised this power for a period 
of more than forty years, although a 
clear and palpahle assumption of 
power, and an encroachment upon 
the judicial department, in violation 
of the Constitution. To deny this 
long-exercised power, and declare all 
the consequences resulting from it 
void, is pregnant with fearful conse- 
quences. If it affected only the rights 
of property,, we should not hesitate; 
but second marriages have been con- 
tracted and children born, and it 
would bastardize all these, although 
born under the sanction of an apparent 
wedlock, authorized by an act of the 
legislature before they were born, and 
in consequence of which the relation 
was formed which gave them birth. 
On account of these children, and for 
them only, we hesitate. And in view 
of this, we are constrained to content 
ourselves with simply declaring that 
the exercise of the power of granting 
divorces, on the part of the legislature, 



is unwarranted and unconstitutional, 
an encroachment upon the duties of 
the judiciary, and a striking down of 
the dearest rights of individuals, with- 
out authority of law. We trust we 
have said enough to vindicate the 
Constitution, and feel confident that 
no department of state has any dis- 
position to violate it, and that the evil 
will cease." So in Johnson v. Joliet, 
and Chicago Railroad Co., 23 111. 207, 
the question was whether railroad 
corpoi'ations could be created by 
special law, without a special declara- 
tion by way of preamble that the ob- 
ject to be accomplished could not be 
attained by general law. The court 
say: " It is now too late to make this 
objection, since by the action of the 
general assembly under this clause, 
special acts have been so long the 
order of the day and the ruling pas- 
sion with every legislature which has 
convened under the Constitution, until 
their acts of this description fill a huge 
and misshapen volume, and important 
and valuable rights are claimed under 
them. The clause has been wholly 
disregarded, and it would now pro- 
duce far-spread ruin to declare such 
acts unconstitutional and void. It is 
now safer and more just to all parties, 
to declare that it must be understood, 
that in the opinion of the general 
assembly, at the time of passing the 
special act, its object could not be 
attained under the general law, and 
this without any recital by way of 



CH. IV.J CONSTETJCTION OP STATE CONSTITUTIONS. 



87 



* Unjust Provisions. [*72] 

We have elsewhere expressed the opinion that a statute cannot 



be declared void on the ground solely that it is repugnant 
to a supposed general intent or * spirit which it is thought 
pervades or lies concealed in the Constitution, but wholly 



[ns] 



preamble, as in the act to incorporate 
the Central Railroad Company. That 
preamble was placed there by the 
■writer of this opinion, and a strict 
compliance with this clause of the 
Constitution would have rendered it 
necessary in every subsequent act. 
But the legislature, in their wisdom, 
have thought differently, and have 
acted differently, until now our special 
legislation and its mischiefs are be- 
yond recovery or remedy." These 
cases certainly presented very strong 
motives for declaring the law to be 
what it was not ; but it would have 
been interesting and useful if either 
of these learned courts had enumer- 
ated the evils that must be placed in 
the opposite scale when the question 
is whether a constitutional rule shall 
be disregarded ; not the least of which 
is, the encouragement of a disposition 
on the part of legislative bodies to set 
aside constitutional restrictions, in the 
belief that, if the unconstitutional law 
can once be put in force, and large 
interests enlisted under it, the courts 
will not venture to declare it void, 
but will submit to the usurpation, no 
matter how gross and daring. We 
agree with the Supreme Court of 
Indiana, that in construing constitu- 
tions, courts have nothing to do with 
the argument ab inconvenienli, and 
should not "bend the Constitution 
to suit the law of the hour." Green- 
castle Township ». Black, 5 Ind. 565; 
and with Bronson, Ch. J., in what he 
says in Oakley v. Aspinwall, 3 N. Y. 
568: "It is highly probable that in- 
conveniences will result from follow- 
ing the Constitution as it is written. 
But that consideration can have no 



force with me. It is not for us, but 
for those who made the instrument, 
to supply its defects. If the legisla- 
ture or the courts may take that office 
upon themselves, or if, under color of 
construction, or upon any other spe- 
cious ground, they may depart from 
that which is plainly declared, the 
people may well despair of ever being 
able to set any boundary to the powers 
of the government. Written consti- 
tutions will be more than useless. 
Believing as I do that the success of 
free institutions depends upon a rigid 
adherence to the fundamental law, I 
have never yielded to considerations of 
expediency in expounding it. There 
is always some plausible reason for 
latitudinarian constructions which are 
resorted to for the purpose of acquir- 
ing power; some evil to be avoided 
or some good to be attained by push- 
ing the powers of the government 
beyond their legitimate boundary. It 
is by yielding to such influences that 
constitutions are gradually under- 
mined and finally overthrown. My 
rule has ever been to follow the fun- 
damental law as it is written, regard- 
less of consequences. If the law does 
not work well, the people can amend 
it; and inconveniences can be borne 
long enough to await that process. 
But if the legislature or the courts 
undertake to cure defects by forced 
and unnatural constructions, they in- 
flict a wound upon the Constitution 
which nothing can heal. One step 
taken by the legislature or the judi- 
ciary, in enlarging the powers of the 
government, opens the door for an- 
other which will be sure to follow; 
and so the process goes on until all 



88 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

unexpressed, or because, in the opinion of the court, it violates 
fundamental rights or principles, if it was passed in the exercise 
of a power which the Constitution confers.^ Still less will the 
injustice of a constitutional provision authorize the courts to dis- 
regard it, or indirectly to an^ul it by construing it away. It is 
quite possible that the people may, under the influence of tempo- 
rary prejudice, or a mistaken view of public policy, incorporate 
provisions 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 possible that obnoxious classes may be 
unjustly disfranchised. The remedy for such injustice must be 
found in the action of the people themselves, through an amend- 
ment of their work when better counsels prevail. Such provi- 
sions, when free from doubt, must receive the same .construction 
as any other. We do not say, however, that if a clause should be 
found in a constitution which should appear at first blush to 
demand a construction leading to monstrous and absurd conse- 
quences, it might not be the duty of the court to question and 
cross-question such clause closely, with a view to discover in it, 
if possible, some other meaning more consistent with the general 
purposes and aims of these instruments. When such a case arises, 
it will be time to consider it.^ 

Duty in Case of Doubt. 

But when all the legitimate lights for ascertaining the mean- 
ing of the Constitution have been made use of, it may still happen 
that the construction remains a matter of doubt. In such a 
case it seems clear that every one called upon to act where, in 

respect for. the fundamental law is quiesced in for a considerable period, 
lost, and the powers of the govern- and rights have been acquired through 
ment are just what those in authority bearing the burdens under it, see 
please to call them." See also Ramsey ». People, 19 N. Y. 41 ; Peo- 
Encking v. Simmons, 28 Wis. 272. pie v. Maynard, 15 Mich. 470 ; Knee- 
Whether there may not be circum- land v. Milwaukee, 15 Wis. 454. 
stances under which the State can be i See post, p. *171, and cases re- 
held justly estopped from alleging the ferred to in notes, 
invalidity of its own action in appor- " McMuUen ». Hodge, 5 Tex. 34. 
tioning the political divisions of the See Clarke r. Irwin, 5 Nev. Ill; Walter 
State, and imposing burdens on citi- *. Cincinnati, 21 Ohio, n. s. 14; Bailey 
zens, where such action has been ac- v. Commonwealth, 11 Bush, 688. 



CH. IV.] CONSTRTJCTION OF STATE CONSTITUTIONS. 89 

his * opinion, the pi-oposed action would be of doubtful [* 74] 
constitutionality, is bound upon the doubt alone to abstain 
from acting. "Whoever derives power from the Constitution to 
perform any public function is disloyal to that instrument, and 
grossly 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 constitu- 
tional and moral obligation by one who, having taken an oath to 
observe that instrument, takes part in an action which he cannot 
say he believes to be no violation of its provisions. A doubt of 
the constitutionality of any proposed legislative 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 sustaining legislation in very 
many cases will cease to be of force. 

Directory and Mandatory Provisions. 

The important question sometimes presents itself, whether we 
are authorized in any case, when the meaning of a clause of the 
Constitution is arrived at, to give it such practical construction as 
will leave it optional with the department or officer to which it 
is addressed to obey it or not as he shall see fit. In respect to 
statutes it has long been settled that particular provisions may be 
regarded as directory merely ; by which is meant that they are to 
be considered as giving directions which ought to be followed, but 
not as so limiting the power in respect to which the directions 
are given that it cannot effectually be exercised without observing 
them. The force of many of the decisions on this. subject will be 
readily assented to by all ; while others are sometimes thought to 
go to the extent of nullifying the intent of the legislature in 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 practicable, to ascertaining some line 
of principle upon which they can be classified. 

There are cases where, whether a statute was to be regarded as 
merely directory or not, was made to depend upon the employing 
or failing to employ negative words plainly importing that the 
act should be done in a particular manner or time, and not 



90 CONSTITUTIONAL LIMITATIONS. [CH. TV. 

[* 75] * otherwise.^ The use of such words is often very con- 
clusive 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 Mansfield would have the 
question 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 general, 
and as likely to include within its scope, in many cases, things 
which are of the very essence of the proceeding. The questions 
in that case were questions of irregularity under 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 failure in the officers appointed 
for its conduct to comply in all respects with the directions of 
the statute there in question. The same court in another case 
say : " Statutory requisitions are deemed directory only when they 
relate to some immaterial matter, where a compliance is a matter 
of convenience rather than of substance." ^ The Supreme Court 
of Michigan, in a case involving the validity of proceedings on the 

' Slayton v. Hulings, 7 Ind. 144; affirmative, and relate to the manner 

King V. Inhabitants of St. Gregory, in which power or jurisdiction vested 

2 Ad. & El. 99 ; King v. Inhabitants in a public officer or body is to be 

of Hipswell, 8 B. & C. 466. exercised, and not to the limits of the 

^ District Township v. Bubnque, power or jurisdiction itself, they may 

7 Iowa, 284. and often have been construed to be 

" Rex V. Locksdale, 1 Burr. 447. directory; but negative words, which 

* People V. Cook, 14 Barb. 290; go to the power or jurisdiction itself, 

s. c. 8 N. Y. 67. have never, that I am aware of, been 

^ People ». Schermerhorn, 19 Barb, brought within that category. 'A 

558. If a statute imposes a duty and clause is directory,' says Taunton, J., 

gives the means of performing that ' when the provisions contain mere 

duty, it must be held to be mandatory, matters of direction and no more; but 

Veaaie v. China, 50 Me. 518. "It not so when they are followed by 

would not perhaps be easy to lay words of positive prohibition. ' Pearse 

down any general rule as to when v. Morrice, 2 Ad. & El. 96." Per 

the provisions of a statute are merely Sharswood, J. , in Bladen v. Philadel- 

directory, and when mandatory or phia, 60 Penn. St. 464, 466. And see 

imperative. Where the words are Pittsburg v. Coursin, 74 Penn. St. 400. 



CH. rv.] CONSTECrCTION OP STATE CONSTITUTIONS. 91 

sale of land for taxes, laid down the rule that " what the law 
requires to be done for the protection of the tax-payer is mandatory, 
and cannot be regarded as directory merely." ^ A similar rule was 
recognized in a recent case in Illinois. Commissioners had been 
appointed to ascertain and assess the damage and recompense due 
to the owners of land which might be taken, on the real estate of 
the persons benefited by a certain local improvement, in proportion 
as nearly as might be to the benefits resulting to each. By the 
statute, when the assessment was completed, the com- 
missioners were to sign and return the same to the * city [* 76] 
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, as void, because the 
person assessed would lose the benefit of an appeal from the 
assessment,^ thej' 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 
within that time, and not after. No time is limited and made 
dependent on that time, within which the owner of the property 
may apply to have the assessment reviewed or corrected. The 
next section requires the clerk to give ten days' notice that the 
assessment has been returned, specifying the day when objections 
may be made to the assessment before the common council by 
parties interested, which hearing may be adjourned from day to 
day ; and the common council is empowered in its discretion 
to confirm or annul the assessment altogether, or to refer it back to 

1 Clark V. Crane, 5 Mich. 154. ought to be taxed in proportion to its 

See also Shawnee County v. Carter, value " is a prohibition against its 

2 Kan. 115. In Life Association v. being taxed in any other mode, and 

Board of Assessors, 49 Mo. 512, it the word ought is mandatory, 
is held that a constitutional provision ^ Marsh v. Chestnut, 14 111. 223. 
that " all property subject to taxation 



92 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

the same commissioners, or to others to be by them appointed. 
As the property owner has the same time and opportunity to 
prepare himself to object to the assessment and have it 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, which is the well-recognized 
rule in all the books." ^ 

The rule is nowhere more clearly stated than by Chief Justice 
Shaw, in Torrey v. Milbury,^ which was also a tax case. 
[* 77] " In * considering the various statutes regulating the as- 
sessment of taxes, and the measures preliminary thereto, 
it is not always easy to distinguish which are conditions precedent 
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 insuring equality of taxation, and to 
enable every one to know with reasonable certainty for what polls 
and for what real estate he is taxed, and for what all those who are 
liable with him are taxed, are conditions precedent ; and if they 
are not observed, he is not legally taxed ; and he may resist it in 
any of the modes authorized bj' law for contesting the validity of 
the tax. But many regulations are made by statutes designed for 
the information of assessors and officers, and intended to promote 

• 
* 14 111. 223. of a law unnecessary to be complied 

2 Wheeler v. Chicago, 24 111. 108. with, unless it be manifest the legisla- 
' 21 Pick. 67. We commend in ture did not intend to impose the cou- 
the same connection the views of sequence which would naturally fol- 
Lewis, Ch. J., in Corbett ». Bradley, low from a non-compliance, or which 
7 Nev. 108: " When any requirement would result from holding the re- 
of a statute is held to be directory, quirement mandatory or indispensa- 
and therefore not material to be fol- ble. If it be clear that no penalty 
lowed, it is upon the assumption that was intended to be imposed for a 
the legislature itself so considered it, non-compliance, then, as a matter of 
and did not make the right conferred course, it is but carrying out the will 
dependent upon a compliance with the of the legislature to declare the statute 
form prescribed for securing it. It is in that respect to be simply directory, 
upon this principle that the courts But, if there be any thing to indicate 
often hold the time designated in a the contrary, a full compliance with it 
statute, where a thing is to be done, must be enforced." See also Hart- 
to be directory. No court certainly ford v. Omaha, 4 Neb. 336. 
has the right to hold any requirement 



OH. rv.] CONSTRUCTION OP STATE CONSTITUTIONS. 93 

method, system, and uniformity in the modes of proceeding, a 
compliance or non-compliance with which does in no respect 
affect the rights of tax-paying citizens. These may be consid- 
ered directory. OfBcers may be liable to legal animadversion, 
perhaps to punishment, for not observing them ; but yet their 
observance is not a condition precedent to the validity of the 
tax." 

We shall quote further only from a single other case upon this 
point. The Supreme Court of Wisconsin, in considering the 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 acts relating 
to the same subject-matter, indicating that the legislature did not 
intend that it should rather be done after the time prescribed than 
not to be done at all, there the courts assume that the intent was, 
that if not done within the time prescribed it might be done 
afterwards. But when any of these reasons intervene, then the 
limit is established." ^ 

These cases perhaps sufficiently indicate the rules, so far as any 
of general application can be declared, which are to be made use of 
in determining whether the provisions of a statute are mandatory 
or directory. Those directions which are not of the essence of the 
thing to be done, but which are given with a view merely 
* to the proper, orderly, and prompt conduct of the busi- [* 78] 
ness, and by a failure to obey which the rights of those 
interested will not be prejudiced, are not commonly to be regarded 
as mandatory ; and if the act is performed, but not in the time or 
in the precise mode indicated, it may still be sufficient, if that 
which is done accomplishes the substantial purpose of the statute.* 

1 State V. Lean, 9 Wis. 292. See or rights are concerned, and the pub- 
further, for the views of this court on lie or third persons have a claim de 
the subject here discussed, Wendel v. jure that the power shall be exercised. 
Durbin, 26 Wis. 390. The general And see Wiley v. Flournoy, 30 Ark. 
doctrine of the cases above quoted is 609. 

approved and followed in French v. ^ The following, in addition to 

Edwards, 13 Wall. 506. In Low v. those cited, are some of the cases in 

Dunham, 61 Me. 566, a statute is said this country iu which statutes have 

to be mandatory where public interests been declared directory only : Pond ». 



94 CONSTITUTIONAL LIMITATIONSi [CH. IV. 

But this rule presupposes that no negative words are employed: in 
the statute which expressly or by necessary implication forbid the 
doing of the act at any other time or in any other manner than as 
directed. Even as thus laid down and restricted, the doctrine is 
one to be applied with much circumspection ; for it is not to be 
denied that the courts liave sometimes, in their anxiety to sustain 
the proceedings of careless or incompetent officers, gone very far 
in substituting a judicial view of what was essential for that 
declared by the legislature.' 

But the courts tread upon very dangerous ground when they 
venture to apply the rules which distinguish directory and manda- 
tory 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 they must then be regarded in the light of limita- 
tions upon the power to be exercised. It is the province of an 
instrument of this solemn and permanent character to establish 

those fundamental maxims, and fix those unvarying rules, 
[* 79] by which all * departments of the government must at all 

times shape their conduct ; and if it descends to prescrib- 

Negus, 3 Mass. 230; Williams v. 144; New Orleans v. St Rowes, 9 

School District, 21 Pick. 75; City of La. An. 573; Edwards u. James, 13 

Lowellu. Hadley, 8Met. 180; Holland Tex. 52; State w. Click, 2 Ala. 26; 

«. Osgood, 8 Vt. 280 ; Corliss u. Cor- Savage v. Walshe, 26 Ala. 620; 

liss, 8 Vt. 373; People v. Allen, 6 Sorchan v. Brooklyn, 62 N. Y. 339; 

Wend. 486 ; Marchant u. Langworthy, People v. Tompkins, 64 N. Y. 53; 

6 Hill, 646 ; Ex parte Heath, 3 Hill, Limestone Co. v. Rather, 48 Ala. 

43; People u. HoUey, 12 Wend. 481; 433; Webster v. French, 12 111. 302; 

Jacksohu. Young, 5 Cow. 269; Striker McKim v. Weller, 11 Cal. 47; State 

V. Kelley, 7 Hill, 9 ; People v. Peck, v. Co. Commissioners of Baltimore, 

11 Wend. 604; Matter of Mohawk and 29, Md. 516; Fry v. Booth, 19 Ohio, 
Hudson Railroad Co., 19 Wend. 148; sr. s. 25; Whalin v. Macomb, 76 111. 
People B. Runkel, 9 Johns. 147; Gale 49; Hurford v. Omaha, 4 Neb. 336; 
V. Mead, 2 Denio, 160; Doughty v. Lackawana Iron Co. v. Little Wolf, 
Hope, 3 Denio, 252; Elmendorf v. 38 Wis. 152; Green v. Warren Co., 
Mayor, &c. of New York, 25 Wend. 10 Bush, 711; Grant v. Spencer, 
696; Thames Manufacturing Co. v. 1 Montana, 136. The list might 
Lathrop, 7 Conn. 550; Colt v. Eves, easily be largely increased. 

12 Conn. 243 ; People v. Doe, 1 Mich. i See upon this subject the remarks 
451; Parks v. Goodwin, 1 Doug, of Mr. Sedgwick in his work on 
(Mich.) 56; Hickey v. Hinsdale, Statutory and Constitutional Law, 
8 Mich. 267; People v. Hartwell, p. 375, and those of Hubbard, J., in 
12 Mich. 508; State v. McGinley, Briggs v. Georgia, 15 Vt. 72. Also 
4 Ind. 7; Slayton v. Rulings, 7 Ind. see Dryfuss v. Dridges, 45 Miss. 247. 



CH. IV.] COKSTRTJCTION OP STATE CONSTITUTIONS. 95 

ing mere rules of order in unessential matters, it is lowering the 
proper dignity of such an instrument, and usurping the proper 
province of ordinary legislation. We are not therefoije to expect 
to find in a constitutioa provisions which the people, in adopting 
it, have not regarded as of high importance, and worthy to be 
embraced inan instrument which, for a time at least, is to control 
alike the government and the governed, and to form a standard 
by which is to be measured the power which can be exercised as 
well by the delegate as by the sovereign people themselves. If 
directions are given respecting the times or modes of proceeding 
in which a power should be exercised, there is at least a strong 
presumption that the people designed it should be exercised in 
that time and mode only ; ^ 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 
other 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 upon the 
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. Justice Willard 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 directory to the legislature.* The remark was ohiter 



1 See State v. Johnson, 26 Ark. law being restrictive upon the powers 
281. of the several departments of govern- 

2 Wolcott V. Wigton, 7 Ind. 49; ment, it is difficult. to comprehend 
per Branson, J. , in People v. Purdy, how its provisions can be regarded as 
2 Hill, 36; Greencastle Township v. merely directory." Nicholson, Ch.. 3., 
Black, 5 Ind. 566; Opinions of Judges, in Cannon v. Mathes, 8 Heisk. 504, 
6 Shep. 458. See People ». Law- 517. 

rence, 36 Barb. 177 ; State v. John- « People v. Supervisors of Che- 
son, 26 Ark. 281. " The essential nango, 8 N. Y. 328. 
nature and object of constitutional 



96 CONSTITUTIONAL LIMITATIONS, [CH. IV. 

dictum, as the court had already decided that the provision had 
been fully complied with ; and those familiar with the reasons 

which have induced the insertion of this clause in our 
[* 80] * constitutions will not readily concede that its sole design 

was to establish a mere rule of order for legislative pro- 
ceedings, which might be followed or not at discretion. Mr. Chief 
Justice Thurman, of Ohio, in a case ijot calling for a discussion of 
the subject, has considered a statute whose validity was assailed 
on the ground that it was not passed in the mode prescribed by 
the constitution. " By the term mode^'' he says, " I do not mean 
to include the authority in which the law-making power resides, or 
the number of votes a bill must receive to become a law. That 
the power to make laws is vested in the assembly alone, and that 
no act has any force that was not passed by the number of votes 
required by the constitution, are nearty, or quite, self-evident 
propositions. These essentials relate to the authority by which, 
rather than the mode in which, laws are to be made. Now 
to secure the careful exercise of this power, and for other good 
reasons, the constitution prescribes or recognizes certain things to 
be done in the enactment of laws, which things form a course 
or mode of legislative procedure. Thus we find, inter alia, the 
provision that every bill shall be fully and distinctly read on 
three different days, unless, in case of urgency, three-fourths of 
the house in which it shall be pending shall dispense with this 
rule. This is an important provision without doubt, but, never- 
theless, there is much reason for saying that it is merely directory 
in its character, and that its observance by the assembly is 
secured by their sense of duty and official oaths, and not by any 
supervisory power of the courts. Any other construction, we 
incline to think, would lead to very absurd and alarming conse- 
quences. If it is in the power of every court (and if one has the 
power, every one has it) to inquire whether a bill that passed the 
assembly was ' fully' and ' distinctly ' read three times in each 
house, and to hold it invalid if, upon any reading, a word was acci- 
dentally omitted, or the reading was indistinct, it would obviously 
be impossible to know what is the statute law of the State. 
Now the requisition that bills shall be fully and distinctly read is 
just as imperative as that requiring them to be read three times ; 
and as both relate to the mode of procedure merely, it would be 
difl&cult to find any sufficient reason why a violation of one of 



CH. IV.] CONSTKUCTION OP STATE CONSTITTJTIOKS . 97 

them would be less fatal to an act than a violation of the 
other." 1 

A requirement that a law shall be read distinetly, 
whether * mandatory or directory, is, from the very na- [* 81] 
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 advising members of its subject, when voting in cases in which 
the reading has been dispensed with by a two-thirds vote. The 
provision that a bill shall contain but one subject was to prevent 
combinations by which various and distinct matters of legislation 
should gain a support which they could not if presented separately. 

1 Miller V. State, 3 Ohio, n. s. 483. * See People v. Campbell, 3 Gilm. 

The provision for three readings on 466; McCuUoch v. State, 11 Ind. 432; 

separate days does not apply to Cannon v. Mathes, 8 Heisk. 504; 

amendments made in the progress of Spangler ». Jacoby, 14 111. 297; Peo- 

thebill through the houses. People pie v. Starne, 35 111. 121; Ryan v. 

V. Wallace, 70 111. 680. Lynch, 68 111. 160. 



98 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

As a rule of proceeding in the General Assembly, it is manifestly 
an important one. But if it was intended to effect any practical 
object for the benefit of the people in the examination, construc- 
tion, or operation of acts passed and published, we are unable to 
perceive it. The title of an act may indicate to the reader its 
subject, and under the rule each act would contain one subject. 
To suppose that for such a purpose the Constitutional Convention 
adopted the rule under consideration, would impute to them a 

most minute provision for a very imperfect heading of the 
[* 82] chapters of laws and their subdivision. This * provision 

being intended to operate upon bills in their progress 
through the General Assembly, it must be held to be directory 
only. It relates to bills, and not to acts. It would be most 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 precision 
and mental discipline of each justice of the peace and judge. No 
practical benefit could arise from such inquiries. We are there- 
fore of opinion that in general the only safeguard against the 
violation of these rules of the houses is their regard for, and their 
oath to support, the constitution of the State. We say, in gen- 
eral, the only safeguard ; for whether a manifestly gross and 
fraudulent violation of these rules might authorize the court to 
pronounce a law unconstitutional, it is unnecessary to determine. 
It is to be presumed no such case will ever occur." ^ 

1 Pirn V. Nicholson, 6 Ohio, n. s. Directly the opposite has been held 

179. See also the case of Washing- in Nevada. State ». Rogers, 10 Nev. 

ton V. Murray, 4 Cal. 388, for similar 250. So a requirement that indict- 

views. In Hill v. Boyland, 40 Miss, ments shall conclude " against the 

618, a provision requiring of all offl- peace and dignity of the people of 

cers an oath to support the constitu- West Virginia," was held in Lemons 

tion, was held not to invalidate the v. People, 4 W. Va. 755, s. c. 1 

acts of officials who had neglected Green Cr. R, 666, to be mandatory, 

to take such an oath. And in Mc- and an indictment which complied 

Pherson v. Leonard, 29 Md. 377, the with it, except in abbreviating the 

provision that the style of all laws name of the State, was held bad. 
shall be, " Be it enacted by the Gen- A statute which is passed in obe- 

eral Assembly of Maryland," was dience to a constitutional requirement 

held directory. Similar rulings were must be held mandatory. State v. 

made in Cape Girardeau v. Riley, Pierce, 35 Wis. 93, 99. 
52 Mo. 424; St. Louis v. Foster, 52 
Mo. 513; Swannv.Buck, 40 Miss. 268. 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 99 

If the prevailing doctrine of the courts were in accord with this ■ 
decision, it might become important to consider whether the object 
of the clause in question, as here disclosed, was not of such a 
character as to make the provision mandatory even in a statute. 
But we shall not enter upon that subject here, as elsewhere we 
shall have occasion to refer to decisions made by the highest 
judicial tribunals in nearly all of the States, 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 provision, that " it will be found upon full con- 
sideration to be difficult to treat any constitutional provision as 
merely directory and not imperative." ^ And with what is said 
by Mr. Justice Lumpkin, as to the duty of the courts : " It has 
been 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 
much a * matter of judicial cognizance as any other pro- [* 83] 
vision in that instrument. If the courts would refuse to 
execute a law suspending the writ of habeas corpus when the pub- 
lic satety did not require it, a law violatory of the freedom of the 
press, or trial by jury, neither would they enforce a statute which 
■contained matter different from what was expressed in the title 
thereof." 2 

Self-executing Provisions • 

But although all the provisions o£ a constitution are to be re- 
garded as mandatory, there are some which, from the nature of 
the case, are as incapable of compulsory enforcement as are direc- 
tory provisions in general. The reason is that, while the purpose 
may be to establish rights or to impose duties, they do not in and 
of themselves constitute a sufficient rule by means of which such 
right may be protected or such duty enforced. In such cases, 

1 Peoples Lawrence, 36 Barb. 186. 7 Ind. 683; People v. Starne, 35 111. 

2 Protho V. Orr, 12 Geo. 36. See 121; State v. Miller, 45 Mo. 495; 
also Opinions of Judges, 18 Me. 458 ; Weaver v. Lapsley, 43 Ala. 224; 
Indiana Central Railroad Co. v. Potts, Nougues v. Douglass, 7 Cal. 65. 



100 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

before the constitutional provision can be made effectual, supple- 
mental legislation must be had ; and the provision is in its nature 
mandatory to the legislature to enact the needful legislation, 
though back of it there lies no authority to enforce the com- 
mand. Sometimes the constitution in terms requires the legisla- 
ture to enact laws on a particular subject ; and here it is obvious 
that the requirement has only a moral force : the legislature ought 
to obey it ; but the right intended to be given is only assured 
when the legislation is voluntarily enacted. Illustrations may be 
found in constitutional provisions requiring the legislature to 
provide by law uniform and just rules for the assessment and 
collection of taxes ; these must lie dormant until the legislation 
is had ; ^ they do not displace the law previously in force, though 
the purpose may be manifest to do away with it by the legislation 
required.2 So, however plainly the constitution may recognize the 
right to appropriate private property for the geiieral benefit, 
the appropriation cannot be made until the law has pointed out 
the cases, and given the means by which compensation may be 
assured.^ A different illustration is afforded by the new amend- 
ments to the federal Constitution. Thus, the fifteenth amend- 
ment provides that " the right of citizens of the United States 
to vote shall not be denied or abridged by the United States, or 
by any State, on account of race, color, or previous condition of 
servitude." To this extent it is self-executing, and of its own 
force it abolishes all distinctions in suffrage based on the particu- 
lars enumerated. But when it further provides that " Congress 
shall have power to enforce this article by appropriate legislation," 
it indicates the possibility that the rule may not be found suffi- 
ciently comprehensive or particular to protect fully this right to 
equal suffrage, and that legislation may be found necessary for 
that purpose.* Other provisions are fully self-executing, and 

1 Williams v. Detroit, 2 Mich. Buchanan County, 62 Mo. 444; 
560; People v. Lake Co., 33 Gal. 487 ; Myers v. English, 9 Gal. 341; Gillen- 
Bowie V. Lott, 24 La. Ann. 214. water v. Mississippi, &c. R. R. Co., 13 

2 Moore, J., in Supervisors of 111. 1. 

Doddridge v. Stout, 9 W. Va. 703, * United States b. Reese, 92 U. S. 

705 ; Gahoon v. Commonwealth, 20 Rep. 214. Any constitutional pro- 

Gratt. 733; Lehigh Iron Co. v. Lower vision is self -executing to this extent, 

Macungie, 81 Penn. St. 482. that every thing done in violation of 

8 Lamb v. Lane, 4 Ohio, n. s. 167. it is void. Brien v. Williamson, 8 

See St. Joseph School Board v. Miss. 14. 



CH. IV.] CONSTEUCTION OF STATE COKSTITUTIONS. 

manifestly contemplate no legislation whatever to give them full 
force and operation.^ 

A constitutional provision may be said to be self-executing if 
it supplies a sufficient rule by means of which the right given 
may be enjoyed and protected, or the duty imposed may be en- 
forced ; and it is not self-executing when -it merely indicates 
principles, without laying down rules by means of which those 
principles may be given the force of law. Thus, a constitution 
may very clearly require county and town government ; but if it 
fails to indicate its range, and to provide proper machinery, it is 
not in this particular self-executing, and legislation is 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 is capable of enforcement, it is law, and all supplemen- 
tary 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 dependence of the provision on subsequent legislative action 
is manifest. But where, as in some other States, the constitution 
defines the extent, in acres or amount, that shall be deemed to 
constitute a homestead, and expressly exempts from any forced 
sale what is thus defined, a rule is prescribed which is capable of 
enforcement. Perhaps even in such cases legislation may be de- 
sirable, by way of providing convenient remedies for the protec- 
tion of the right secured, or of regulating the claim of the right 
so that its exact limits may be known and understood ; but all 
such legislation must be subordinate to the constitutional -provi- 
sion and in furtherance of its purpose, and must not in any par- 
ticular attempt to narrow or embarrass it. The provision of a 
constitution which defines a homestead and exempts it from 

1 See People v. Bradley, 60 111. ^ Wall, Ex parte, 48 Cal. 279; At- 

390 ; People v. McRoberts, 62 111. torney-General v. Common Council of 
38; Mitchell v. Illinois, &c. Coal Co., Detroit, 29 Mich. 108. 
68 111. 286; Beecher v. Baldy, 7 Mich. 
488; People v. Rumaey, 64 111. 41. 



102 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

forced sale is self-executing, at least to this extent, that, though 
it may admit of supplementary legislation in particulars where in 
itself it is not as complete as may be desirable, it will override 
and nullify whatever legislation, either prior or subsequent, 
would defeat or limit the homestead which is thus defined and 
secured. 

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

1 See People v. Cowles, 13 N. Y. ent restriction upon the mode of ex- 
360, per Johnson, J. ; Temple «. Mead, ercising the right of suffrage, there 
4 Vt. 540, per Williams, J. ; People was some existing or anticipated evil 
V. Fancher, 50 N. Y. 291. - " In cod-' which it was their purpose to avoid, 
struing so important an instrument If an enlarged sense of any particular 
as a constitution, especially those form of expression should be neces- 
parts which affect the vital principle sary to accomplish so great an object 
of republican government, the elective as a convenient exercise of the fun- 
franchise, or the manner of exercising damental privilege or right, — that 
it, we are not, on the one hand, to of election, — such sense must be at- 
indulge ingenious speculations which tributed. We are to suppose that 
may lead us wide from the true sense those who were delegated to the great 
and spirit of the instrument, nor, on business of distributing the powers 
the other, to apply to it such narrow which emanated from the sovereignty 
and constrained views as may exclude of the people, and to the establish- 
the real object and intent of those ment of the rules for the perpetual 
who framed it. We are to suppose security of the rights of person and 
that the authors of such an instru- property, had the wisdom to adapt 
ment had a thorough knowledge of their language to future as well as 
the force and extent of the words they existing emergencies, so that words 
employ ; that they had a bene- competent to the then existing state 
ficial. end and purpose in view; and of the community, and at the same 
that, more especially in any appar- time capable of being expanded to 



CH. IV.] CONSTRTTCTION OP STATE CONSTITUTIONS. 



103 



embrace more extensive relations, 
should not be restrained to their more 
obvious and immediate sense, if, con- 
sistently with the general object of 
the authors and the true principles 
of the compact, they can be extended 
to other relations and circumstances 
■which an improved state of society 
may produce. Qui hwret in litera 



hasret in cortice is a familiar maxim of 
the law. The letter killeth, but the 
spirit maketh alive, is the more forci- 
ble expression of Scripture." Parker, 
Ch. J. , in Henshaw v. Foster, 9 Pick. 
316 . There are some very pertinent and 
forcible remarks by Mr. Justice Mil- 
ler on this general subject in Wood- 
son B. Murdock, 22 Wall. 351 , 381. 



104 CONSTITUTIONAL LIMITATIONS. [CH. V. 



[* 85] * CHAPTER V. 

OF THE POWERS WHICH THE LEGISLATIVE DEPARTMENT MAY 

EXERCISE. 

In considering the powers which may be exercised by the legis- 
lative 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 usages 
and customs, or parliamentary comnion 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 can do, may also be done by the 
department created for the exercise of legislative authority in 
this country. But to guard against being misled by a comparison 
between the two, we must bear in mind the important distinction 
already pointed out, that with the Parliament rests practically 
the sovereignty of the country, so that it may exercise all the 
powers of the government if it wills so to do ; while on the other 
hand the legislatures of the American States are not the sovereign 
authority, and, though vested with the exercise of one branch of 
the sovereignty, they are nevertheless, in wielding it, hedged in 
on all sides by important limitations, some of which are imposed 
in express terms, and others by implications which are equally 
imperative. 

" The power and jurisdiction of Parliament, says Sir Edward 
Coke,^ is so transcendent and absolute, that it cannot be con- 
fined, either for persons or causes, within any bounds. And of 
this high court it may truly be said : ' Si antiquitatem spectes, 

1 4 Inst. 36. 



CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 105 

est vetustissima ; si dignitatem, est honoratissima ; si jurisdic- 
tionem, est capaeissima.' It hath sovereign and uncontrolled 
authority in the making, confirming, enlarging, restraining, abro- 
gating, repealing, reviving, and expounding of laws, concerning 
matters of all possible denominations, ecclesiastical or 
temporal, * civil, military, maritime, or criminal ; this [* 86] 
being the place where that absolute despotic power, which 
must in all governments reside somewhere, is intrusted by the 
constitution of these kingdoms. All mischief and grievances, 
operations and remedies, that transcend the ordinary course of 
the laws, are within the reach of this extraordinary tribunal. It 
can regulate or new-model the succession to the Crown, as was 
done in the reign of Henry VIII. and William III. It can alter 
the established religion of the land ; as was done in a variety of 
instances, in the reign of King Henry VIII. and his three children. 
It can change and create afresh even the constitution of the king- 
dom and of Parliaments themselves, as was done by the Act of 
Union, and the several statutes for triennial and septennial elec- 
tions. It can, in short, do every thing that is not naturally im-5 
possible ; and therefore some have not scrupled to call its power,\ 
by a figure rather too bold, the omnipotence of Parliament. 
True it is, that what the Parliament doth, no authority upon 
earth can undo ; so that it is ''a matter most essential to the 
liberties of this kingdom that such members be delegated to this 
important trust as are most eminent for their probity, their forti- 
tude, and their "knowledge; for it was a known apothegm of the 
great Lord Treasurer, Burleigh, ' that England could never be 
ruined but by a Parliament ; ' and as Sir Matthew Hale observes : 
' This being the highest and greatest court, over which none other 
can have jurisdiction in the king-dom, if by any means a mis- 
government should fall upon it< the subjects of this kingdom are 
left without all manner of remedy.' " ^ 

The strong language in which the complete jurisdiction of 
Parliament is* here described is certainly inapplicable to any 
authority in the American States, unless it be to the people of 
the States when met in their primary capacity for the formation 
of their fundamental law ; and even then there rest upon them 

1 1 Bl. Com. 16*0. See Austin on power is unknown. Loan Association 
Jurisprudence, Lee. 6. In the Araer- v. Topeka, 20 Wall. 663. 
ican system such a thing as unlimited 



106 CONSTITUTIOSTAL LIMITATIONS. [CH. V. 

the restraints of the Constitution of the United States, which 
bind them as absolutely as they do the governments which they 
create. It becomes important, therefore, to ascertain in what re- 
spect the State legislatures resemble the Parliament in the powers 
they exercise, and how far we may extend the comparison with- 
out losing sight of the fundamental ideas and principles of the 

American system. 
[* 87] * The first and most notable difference is that to which 
we have already alluded, and which springs from the dif- 
ferent theory on which the British Constitution rests. So long 
as the Parliament is recognized as rightfully exercising the sov- 
ereign authority of the country, it is evident that the resemblance 
between it and American legislatures in regard to their ultimate 
powers cannot be traced very far. The American legislatures 
only exercise a certain portion of the sovereign power. The 
sovereignty is in the people ; and the legislatures which they have 
created are only to discharge a trust of which they have been 
made a depository, but which has been placed in their hands with 
well-defined restrictions. 

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

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

1. In creating a legislative department and conferring upon it 
the legislative power, the people must be understood to have 
conferred the full and complete power as it rests in, and may 
be exercised by, the sovereign power of any country, subject 
only to such restrictions as they may have seen fit to impose, 
and to the limitations which are contained in the Constitution 
of the United States. The legislative department is not made a 
special agency, for the exercise of specifically defined legislative 



CH. v.] POWERS EXERCISED BY LEGISr.ATIVB DEPARTMENT. 107 

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 func- 
tions, except in those cases, warranted by parliamentary usage, 
where they are incidental, necessary, or proper to the exercise of 
legislative authority, or where the constitution itself, in specified 
cases, may expressly permit it.' Executive power is so intimately 
connected with legislative, that it is not easy to draw a line of 
separation; but the grant of the judicial power to the 
department * created for the purpose of exercising it must [* 88] 
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 legislatures may exercise the 
legislative powers which the Parliament of Great Britain wields, 
except as restrictions are imposed, they are at the same time ex- 
cluded from other functions which may be, and sometimes habit- 
ually 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. 
Plenary power in the legislature, for all purposes of civil govern- 
ment, is the rule. A prohibition to exercise a particular power is 
an exception. In inquiring, therefore, whether a given statute is 
constitutional, it is for those who question its validity to show that 
it is forbidden. I do not mean that the power must be expressly 
inhibited, for there, are but few positive 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 monarchical or 
popular ; and there are scattered through the instrument a few 
other provisions in restraint of legislative authority. But the 
affirmative prescriptions and the general arrangements of the 
constitution are far more fruitful of restraints upon the legisla- 
ture. Every positive direction contains an implication against 
every thing contrary to it, or which would frustrate or disappoint 
the purpose of that provision. The frame of the government, the 
grant of legislative power itself, the organization of the executive 

1 See post, pp. *87 to *114, *372. =" See post, p. *90, note. 



108 CONSTITUTIONAL LIMITATIONS. [CH. V. 

authority, the erection of the principal courts of justice, create 
implied limitations upon the law-making authority as strong as 
though a negative was expressed in each instance ; but indepen- 
dently of these restraints, express or implied, every subject within 
the scope of civil government is liable to be dealt with by the 
legislature." ^ 

" It has never been questioned, so far as I know," says Bedfield, 
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- 
[* 89] tutions. * That must be conceded, I think, to be a 
fundamental principle in the political organization of the 
American States. We cannot well comprehend how, upon prin- 
ciple, it should be otherwise. The people must, of course, possess 
all legislative power originally. They have committed this in the 
most general and unlimited manner to the several State legis- 
latures, saving only such restrictions as are imposed by the Con- 
stitution of the United States, or of the particular State in 
question." ^ 

" I entertain no doubt," says Comstock, J., " that aside from 
the special limitations of the constitution, the legislature cannot 
exercise powers which are in their nature essentially judicial or 
executive. These are, by the constitution, distributed to other 
departments of the government. It is only the ' legislative power ' 
which is vested in the senate and assembly. But where the con- 
stitution is silent, and there is no clear usurpation of the powera 
distributed to other departments, I think there would be great 
difSculty and great danger in attempting to define the limits of 
this power. Chief Justice Marshall said : ' How far the power of 
giving the law may involve every other power, in cases where the 
constitution is silent, never has been, and perhaps never can be, 
definitely stated.' ^ That very eminent judge felt the difficulty ; 

1 People V. Draper, 15 N. Y. 543. pervisors of Orange, 27 Barb. 593; 

2 Thorpe v. Rutland & Burlington Taylor v. Porter, 4 Hill, 144, per 
Railroad Co., 27 Vt. 142. See also Branson, J. ; Andrews v. State, 3 
Leggett V. Hunter, 19 N. Y. 445; Heisk. 165 ; Lewis's Appeal, 67 Penn. 
Cochran v. Van Surlay, 20 Wend. St. 153; Walker v. Cincinnati, 21 
365; People v. Morrell, 21 Wend. 563; Ohio, n. s. 14; People v. Wright, 70 
Sears v. Cottrell, 5 Mich. 251 ; Beach- 111. 888. 

amp V. State, 6 Blackf. 299 ; Mason s Fletcher v. Peck, 6 Cranch, 136. 

V. Wait, 4 Scam. 184; People e. Su- 



CH. V.j POWERS EXEKCISED BY LEGISLATIVE DEPAETMENT. 109 

but the danger was less apparent then than it is now, when theo- 
ries, alleged to be founded in natural reason or inalienable rights, 
but subversive of the just and necessary powers of government, 
attract the belief of considerable classes of men, and when too 
much reverence for government and law is certainly among. the 
least of the perils to which our institutions are exposed. I am 
reluctant to enter upon this field of inquiry, satisfied, as I ara, 
that no rule can be laid down in terms which may not contain the 
germ of great mischief to society, by giving to private opinion and 
speculation a license to oppose themselves to the just and legiti- 
mate powers of government." ^|Mltv"^ ' 

Other judicial opinions in great number might be cited in 
support of the same general doctrine ; but as there will 
be * occasion to refer to them elsewhere when the circum- [* 90] 
stances under which a statute may be declared uncon- 
stitutional are considered, we shall refrain from further references 
in this place.2 Nor shall we enter upon a discussion of the ques- 
tion suggested by Chief Justice Marshall as above quoted ; * since, 
however interesting it may be as an abstract question, it is made 
practically unimportant by the careful separation of 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 

1 Wynehamer «. People, 13 N. Y. Gough v. Dorsey, 27 Wis. 130; Van 
391. < Slyke.u. Ins. Co., 39 Wis. 390; s. c. 

2 See ^o«<, p.* 168, and cases cited 20 Am. Rep. 50; Alexander v. Ben- 
in notes. netib, 60 N. Y. 204 ; People v. Young, 

* The power to distribute the judi- 72 111. 411. But a general provision 

cial power, except so far as that has in. the constitution for the distribution 

been done by the constitution, rests of the judicial power, not referring 

with the legislature : Commonwealth to courts-martial, would not be held 

V. Hippie, 69 Penn. St. 9 ; but when to forbid such courts by implication, 

the constitution has conferred it upon People v. Daniel, 50 N. Y. 274. Nor 

certain specified courts, this must be would it be held to embrace adminis- 

understood to embrace the whole ju- trative functions of a quasi judicial 

cial power, and the legislature can- nature, such as the assessment of 

not vest any portion of it elsewhere, property for taxation. State v. Com- 

Greenough v. Greenough, 11 Penn. missioners of Ormsby County, 7 Nev. 

St. 489 ; State ». Maynard, 14 111. 392, and cases cited. See Auditor of 

420; Gib.«on v. Emerson, 2 Eng. 173; State v. Atchison, &c. R. R. Co., 6 

Chandler w. Nash, 5 Mich. 409; Sue- Kan. 500; s. c. 7 Am. Rep. 575. 
cession of Tanner, 22 La. Ann. 91; 



110 CONSTITUTIONAL LIMITATIONS. [CH. V. 

to make laws ; ^ but assuming them to be apportioned already, we 
are only at liberty to liken the power of the State legislature to 
that of the Parliament, when it confines its action to an 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 has been questioned as encroaching upon judicial 
authority; and to this end it may be useful, at the outset, to 
endeavor to define legislative and judicial power respectively, that 
we may the better be enabled to point out the proper line of dis- 
tinction when questions arise in their practical application to ac- 
tual cases. 

The legislative power we understand to be the authority, under 
the constitution, to make laws, and to alter and repeal them. 
Laws, in the sense in which the word is here employed, are rules 
of civil conduct, or statutes, which the legislative will has 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- 
[*91] established local customs having *the force of laws." ^ 
" The difference 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 
predetermination of what the law shall be for the regulation of 
all future cases falling under its provisions.* And in another 
case it is said: "The legislative power extends only to the 
making of laws, and in its exercise it is limited and restrained 
by the paramount authority of the federal and State constitutions. 
It cannot directly reach the property or vested rights of the 
citizen by providing for their forfeiture or transfer to another, 

1 Calder v. Bull, 2 Root, 350, and » Per Marshall, Ch. J., in Wayman 
3 Ball. 386 ; Ross v. Whitman, 6 Cal. ». Southard, 10 Wheat. 46 ; per Gib- 
361; Smith v. Judge, 17 Cal. .'547; son, Ch. J., in Greenough v. Green- 
per Patterson, J., in Cooper v. Tel- ough, 11 Penn. St. 494. See State v. 
fair, 4 Ball. 19; Martin «. Hunter's Gleason, 12 Fla. 190; Hawkins o. 
Lessee, 1 Wheat. 304. Governor, 1 Ark. 570. 

2 Swift V. Tyson, 16 Pet. 18. « Bates v. Kimball, 2 Chip. 77. 



CH. v.] POWERS EXEECISED BY LEGISLATIVE DEPARTMENT. Ill 

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 is not 
legislation which adjudicates in a particular case, prescribes the 
rule contrary to the general law, and orders it to be enforced. 
Such power assimilates itself more closely to despotic rule than 
any other attribute of government." ^ 

On the other hand, to adjudicate upon, and protect, the rights 
and interests of individual citizens, and to that end to construe 
and apply the laws, is the peculiar province of the judicial depart- 
ment.^ " No particular definition of judicial power," says Wood- 
bury, J., " is given in the constitution [of New Hampshire], and, 
considering the general nature of the instrument, none was to be 
expected. Critical statements of the meanings in which all im- 
portant words were employed would have swollen into volumes ; 
and when those words possessed a customary signification, a defi- 
nition of them would have been useless. But ' powers 
judicial,' *' judiciary powers,' and ' judicatures ' are all [*92] 
phrases used in the constitution ; and though not particu- 
larly defined, are still so used to designate with clearness that 
department of government which it was intended should inter- 
pret and administer the laws. On general principles, therefore, 
those inquiries, deliberations, orders, and decrees, which are 
peculiar to such a department, must in their nature be judicial 
acts. Nor can they be both judicial and legislative ; because a 
marked difference exists between the employment of judicial and 
legislative tribunals. The former decide upon the legality of 
claims and conduct, and the latter make rules upon which, in con- 
nection with the constitution, those decisions should be founded. 
It is the province of judges to determine what is the law upon 
existing cases. In fine, the law is applied by the one, and made 
by the other. To do the first, therefore, — to compare the claims 
of parties with the law of the land before established^ — is in its 

1 Ne-wland v. Marsh, 19 111. 382. n. s. 81. See also King v. Dedham 

2_Ervine's Appeal, 16 Penn. St. Bank, 15 Mass. 454; Gordon v. In- 

266. See also Greenough v. Green- graham, 1 Grant's Cases, 152 ; People 

ough, 11 Penn. St. 494; Dechas- v. Supervisors of New York, 16 N. 

telluxD. Fairchild, 15 Penn. St. 18; Y. 432; Beebe v. State, 6 Ind. 515; 

Trustees, &c. v. Bailey, 10 Fla. 238. Greenough v. Greenough, 11 Penn. 

» Cincinnati, &c. Eailroad Co. v. St. 494; Taylor v. Place, 4 R. I. 324. 

Commissioners of Clinton Co., 1 Ohio, 



112 CONSTITUTIONAL LIMITATIONS. [CH. V. 

nature a judicial act. But to do the last — to pass new rules for 
the regulation of new controversies — is in its nature a legislative 
act ; and if these rules interfere with the past, or the present, and 
do not look wholly to the future, they violate the definition of a 
law as 'a rule of civil conduct ; '^ because no rule of conduct can 
with consistency operate upon what occurred before the rule itself 
was promulgated. 

" It is the province of judicial power, also, to decide private 
disputes between or concerning persons ; but of legislative power 
to regulate public concerns, and to make laws for the benefit and 
welfare of the State. 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 
rights." 2 

With these definitions and explanations, we shall now proceed 
to consider some of the cases in which the courts have attempted 
to draw the line of distinction between the proper functions of thd 
legislative and judicial departments, in cases where it has been 
claimed that the legislature have exceeded their power by invad- 
ing the domain of judicial authority. 



[* 93] * Declaratory Statutes. 

Legislation is either introductory of new rules, or it is declar- 
atory of existing rules. "A declaratory statute is one which 
is passed in order to put an end to a doubt as to what is the com- 
mon law, or the meaning of another statute, and which declares 
what it is and ever has been." ^ Such a statute, therefore, is always 
in a certain sense retrospective ; because it assumes to determine 

.1 1 Bl. Comm. 44. The distinc- 725; Burkett v. McCurty, 10 Bush, 

tion between legislative and judicial 758. 

power lies between a rule and a sen- ' Merrill v. Sherburne, 1 N. H. 

tence. Shrader, Exparte, 33 Cal. 279. 204. See Jones v. Perry, 10 Yerg. 

See Shumway v. Bennett, 29 Mioh. 69; Taylor v. Porter, 4 Hill, 144; 

451 ; Supervisors of Election, 114 Ogden v. Blackledge, 2 Cranch, 272 ; 

Mass. 247. The legislature cannot Dash v. Van Kleek, 7 Johns. 498; 

empower election boards to decide Wilkinson r. Leland, 2 Pet. 657 ; Le- 

whether one by duelling has forfeited land v. Wilkinson, 10 Pet. 297. 
his right to vote or hold office. ' Bouv. Law Diet. "Statute;" 

Commonwealth v. Jones, 10 Bush, Austin on Jurisprudence, Lee. 87. 



CH. V.]' POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 113 

what the law was before it was passed ; and as a declaratory statute 
is important only in those cases where doubts have already arisen, 
the statute, when passed, may be found to declare the law to be 
different from what it has already been adjudged to be by the 
courts. Thus Mr. Fox's Libel Act declared that, by the law of 
England, juries were judges of the law in prosecutions for libel ; it 
did not purport to introduce a new rule, but to declare a rule 
already and always in force. Yet previous to the passage of this 
act the courts had repeatedly held that the jury in these cases 
were only to pass upon the fact of publication and the truth of 
the innuendoes; and whether the publication was libellous or not 
was a question of law which addressed itself exclusively to the 
court. It would appear, therefore, that the legislature declared 
the law to be what the courts had declared it was not. So in the 
State of New York, after the courts had held that insurance com- 
panies were taxable to a certain extent under an existing statute, 
the legislature passed another act, declaring that such companies 
were only taxable at a certain other rate ; and it was thereby 
declared that such was the intention and true construction of the 
original statute.^ In these cases it will be perceived that the courts, 
in the due exercise of their authority as interpreters of the laws, 
have declared what the rule established by the common law or by 
statute is, and that the legislature has then interposed, put its own 
construction upon the existing law, and in effect declared the 
judicial interpretation to be unfounded and unwarrantable. Thie 
courts in these cases have clearly kept within the proper limits of 
their jurisdiction, and if they have erred, the error has been one 
of judgment only, and has not extended to usurpation of power. 
Was the legislature also within the limits of its authority when it 
passed the declaratory statute ? ■* 

*The decision of this question must depend perhaps [*94] 
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 
the other hand, merely to establish a construction of the doubtful 
law for the determination of cases that may arise in the future. 
It is always competent to change an existing law by a declaratory 
statute ; and where the statute is only to operate upon future 

1 People V. Supervisors of New York, 16 N. Y. 424. 
8 



114 



CONSTITUTIONAL LIMITATIONS. 



[GH. 



cases, it is no objection to its validity that it assumes the law to 
have been in the past what it is now declared that it shall be in the 
future.^ But the legislative action cannot be made to retroact 
upon past controversies, and to reverse decisions which the courts, 
in the exercise of their undoubted authority, have made ; for this 
would not only be the exercise of judicial power, but it would be 
its exercise in the most objectionable and offensive form, since 
the legislature would, in effect sit as a court of review to which 
parties might appeal when dissatisfied with the rulings of the 
courts.^ 



1 Union Iron Co. v. Pierce, 4 Biss. 
327. 

^ In several different cases the 
coui'ts of Pennsylvania had decided 
that a testator's mark to his name, 
at the foot of a testamentary paper, 
hut without proof that the name was 
written by his express direction, was 
' not the signature required by the 
statute, and the legislature, to use 
the language of Chief Justice Gibson, 
' ' declared, in order to overrule it, 
that every last will and testament 
heretofore made, or hereafter to be 
made, except such as may have been 
fully adjudicated prior to the passage 
of this act, .to which the testator's 
name is subscribed by his direction, 
or to which the testator has made bis 
mark or cross, shall be deemed and 
taken to be valid. How this man- 
date to the courts to establish a 
particular interpretation of a particu- 
lar statute can be taken for any thing 
else than an exercise of Judicial power 
in settling a question of interpreta- 
tion, I know not. The judiciary had 
certainly recognized a legislative in- 
terpretation of a statute before it had 
itself acted, and consequently before 
a purchaser had been misled by its 
judgment; but he might have paid 
for a title on the unmistakable mean- 
ing of plain words ; and for the legis- 
lature subsequently to distort or 
pervert it, and to enact that white 
meant black, or that black meant 
white, would in the same degree be 



an exercise of arbitrary and uncon- 
stitutional power." Greenough v. 
Greenough, 11 Penn. St. 494. The 
act in this case was held void so far 
as its operation was retrospective, but 
valid as to future cases. And see 
Reiser v. Tell Association, 39 Penn. 
St. 137. The constitution of Georgia 
entitled the head of a family to enter 
a homestead, and the courts decided 
that a single person, having no others 
dependent upon him, could not be 
regarded the head of a family, though 
keeping house with servants. After- 
wards, the legislature passed an act, 
declaring that any single person living 
habitually as housekeeper to himself 
should be regarded as the head of a 
family. Held void as an exercise of 
judicial power. Calhoun v. McLen- 
don, 42 Geo. 405. The fact that the 
courts had previously given a con- 
struction to the law may show more 
clearly a purpose in the legislature 
to exercise judicial authority, but it 
would not be essential to that end. 
As is well said in Haley v. Philadel- 
phia, 68 Penn. St. 45 : "It would be 
monstrous bo maintain that when the 
words and intention of an act were so 
plain that no court had ever been 
appealed to for the purpose of declar- 
ing their meaning, it was therefore in 
the power of the legislature, by a ret- 
rospective law, to put a construction 
upon them contrary to the obvious 
letter and spirit. Reiser o. William 
Tell Fund Association, 39 Penn. St. 



CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 115 

As the legislature cannot set aside the construction of the law 
already applied by the courts to actual cases, neither can it compel 
the courts for the future to adopt a particular construction of a law 
which the legislature permits to remain in force. " To declai-e 
what the law is, or has been, is a judicial power ; to declare what 
the law shall be, is legislative. One of the fundamental principles 
of all our governments is, that the legislative power 
* shall be separate from the judicial." ^ If the legislature [* 95] 
would prescribe a different rule for the future from that 
which the courts enforce, it must be done by statute, and cannot be 
done by a mandate to the courts, which leaves the law unchanged, 
but seeks to compel the courts to construe and apply it, not ac- 
cording to the judicial, but 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 
intention to establish by declaratory statute a rule of conduct for 
the future, the courts should accept and act upon it, without too 
nicely inquiring whether the mode by which the new rule is 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- 

137, is an authority in point against son v. Hogan, 2 Penn. St. 25; Seibert 

such a doctrine. An expository act v. Linton, 5 W. Va. 57 ; Arnold v. 

of assembly is destitute of retroactive Kelley, 5 W. Va. 448 ; McDaniel v. 

force, because it is an act of judicial Correll, 19 111. 226. A legislative act 

power, and is in contravention of the directing the levy and collection of a 

ninth section of the ninth article tax which has already been declared 

of the constitution, which declares illegal by the judiciary, is void, as an 

that no man can be deprived of his attempted reversal of judicial action, 

property unless ' by the judgment of Mayor, &c. v. Horn, 26 Md. 194 ; 

his peers or the law of the land.' " Butler v. Supervisors of Saginaw, 

See 8 Am. Eep. 155, 156. And on the 26 Mich. 25. This doctrine, however, 

force and effect of declaratory laws in would not prevent the correction of 

general, see Salters v. Tobias, 3 mere errors in taxation by legislation 

Paige, 388 ; Postmaster-General v. of a retrospective character. See 

Early, 12 Wheat. 148 ; Union Iron post, p. * 371. 

Co. V. Pierce, 4 Biss. 827 ; Planters' ^ Governor v. Porter, 5 Humph. 

Banku. Black, 19 Miss. 43; Gough 165; People v. Supervisors, &c., 16 

i>. Pratt, 9 Md. 526. N. Y. 424; Reiser v. Tell Association, 

1 Dash V. Van Kleek, 7 Johns. 39 Penn. St. 137; O'Conner v. War- 

498, per Thompson, J. ; Ogden v. ner, 4 W. & S. 227; Lambertson v. 

Blackledge, 2 Cranoh, 272 ; Lambert- Hogan, 2 Penn. St. 25. 



116 



CONSTITUTIONAL LIMITATIONS. 



[CH. V. 



ting aside their judgments, compelling them to grant new trials,^ 
ordering the discharge of offenders,* or directing what particu- 
lar steps shall be taken in the progress of a judicial inquiry .^ 



1 Lewis V. Webb, 3 Me. 326; Dur- 
ham b. Lewiston, 4 Me. 140; Atkin- 
son V. Dunlap; 50 Me. Ill; Bates v. 
Kimball, 2 Chip. 77; Staniford v. 
Barry, 1 Aik. 314; Merrill v. Sher- 
burne, 1 N. H. 199 ; Opinion of 
Judges in Matter of Dorr, 3 R. I. 
299; Taylor v. Place, 4 R. I. 324; 
Dechastellux v. Fairchild, 15 Peun. 
St. 18 J Young V. State Bank, 4 Ind. 
301; Beebe v. State, 6 Ind. 515; 
Lanier v. Gallatas, 13 La. Ann. 175; 
Mayor, &c. v. Horn, 26 Md. 194; 
Weaver v. Lapsley, 43 Ala. 224; 
Saunders v. Cabaniss, 43 Ala. 173; 
Moser v. White, 29 Mich. 59 ; Sydnor 
B. Palmer, 32 Wis. 409; People v. 
Frisbie, 26 Cal. 135; Lawson v. Jef- 
fries, 47 Miss. 686 ; s. c. 12 Am. Rep. 
342. And see post, pp. » 391-* 393 and 
notes. It is not competent by legis- 
lation to authorize the court of final 
resort to reopen and rehear cases pre- 
viously decided. Dorsey v. Dorsey, 
37 Md. 61; s. c. 11 Am. Rep. 528. 
The legislature may control remedies, 
&c., but, when the matter has pro- 
ceeded to judgment, it has passed 
beyond legislative control. Oliver 
V. MeClure, 28 Ark. 655; Griffin's 
Executor v. Cunningham, 20 Gratt. 
31; Teel v. Yancey, 23 Gratt. 691; 
Hooker v. Hooker, 18 Miss. 599. 

2 In State v. Fleming, 7 Humph. 
152, a legislative resolve that " no 
fine, forfeiture, or imprisonment, 
should be imposed or recovered under 
the act of 1837 [then in force], and 
that all causes pending in any of the 
courts for such offence should be 
dismissed," was held void as an 
invasion of judicial authority. The 
legislature cannot declare a forfeiture 
of a right to act as curators of a 
college. State v. Adams, 44 Mo. 
570. Nor can it authorize the gov- 
ernor or any other State officer to 



pass upon the validity of State grants 
and correct errors therein ; this being 
judicial. Hilliard v. Connelly, 7 Geo. 
172. Nor, where a corporate charter 
provides that it shall not be repealed 
"unless it shall be made to appear 
to the legislature that there has been 
a violation by the company of some of 
its provisions," can there be a repeal 
before a judicial inquiry into the 
violation. Flint, &c. Plank Road Co. 
V. WoodhuU, 25 Mich. 99. A legis- 
lative act cannot turn divorces nisi 
into absolute divorces, of its own 
force. Sparhawk v. Sparhawk, 116 
Mass. 315. But to take away by 
statute a statutory right of appeal is 
not an exercise of judicial authority. 
Ex parte McCardle, 7 Wall. 506. 
And it has been held that a statute 
allowing an appeal in a particular 
case was valid. Prout v. Berry, 2 
Gill, 147 ; State v. Northern Central 
R. R. Co., 18 Md. 193. A retro- 
active statute, giving the right of 
appeal in cases in which it had pre- 
viously been lost by lapse of time, 
was sustained in Page v. Mathews's 
Adm'r, 40 Ala. 547. But in Carleton 
V. Goodwin's Ex'r, 41 Ala. 153, an 
act the effect oi which would have 
been to revive discontinued appeals 
was held void as an exercise of judi- 
cial authority. See cases cited in 
next note. 

* Opinions of Judges on the Dorr 
Case, 3 R. I. 299. In the case of 
Picquet, Appellant, 5 Pick. 64, the 
judge of probate had ordered letters 
of administration to issue to an ap- 
plicant therefor, on his giving bond 
in the penal sum of $50,000, with 
sureties within the Commonwealth, 
for the faithful performance of his 
duties. He was unable to give the 
bond, and applied to the legislature 
for relief. Thereupon a resolve was 



CH. V.J POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 117 

* And as a court must act as an organized body of judges, [* 96] 
and, where diiferences of opinion arise, they can only 
decide by majorities, it has been held that it would not be in the 
power of the legislature to provide that, in certain contingencies, 
the opinion of the minority of a court, vested with power by the 
constitution, should prevail, so that the decision of the court in 
such cases should be rendered against the judgment of its mem- 
bers.^ 

Nor is it in the power of the legislature to bind individuals by 
a recital of facts in a statute, to be used as evidence against the 
parties interested. A recital of facts in the preamble of a statute 



passed "empowering" the judge of 
probate to grant the letters of ad- 
ministration, provided the petitioner 
should give bond with his brother, 
a resident of Paris, France, as surety, 
and " that such bond should be in 
lieu of any and all bond or bonds by 
any law or statute in this Common- 
wealth now in force required," &c. 
The judge of probate refused to 
grant the letters on the terms speci- 
fied in this resolve, and the Supreme 
Court, while holding that it was not 
compulsory upon him, also declared 
their opinion that, if it were so, it 
would be inoperative and void. In 
Bradford v. Brooks, 2 Aik. 284, it 
was decided that the legislature had 
no power to revive a commission for 
proving claims against an estate after 
it had once expired. See also Bagg's 
Appeal, 43 Penn. St. 512: Trustees v. 
Bailey, 10 Fla. 238. In Hill v. Sun- 
derland, 3 Vt. 507, and Burch v. 
Newberry, ION. Y. 374, it was held 
that the legislature had no power to 
grant to parties a right to appeal 
after it was gone under the general 
law. In Burt v. Williams, 24 Ark. 
91, it was held that the granting of 
continuances of pending cases was 
the exercise of judicial authority, and 
a legislative act assuming to do this 
was void. And where, by the gen- 
eral law, the courts have no authority 
to grant a divorce for a given cause. 



the legislature cannot confer the au- 
thority in a particular case. Sim- 
monds v. Simmonds, 103 Mass. 572; 
s. c. 4 Am. Rep. 576. And see post, 
pp. * 110, note, *392 and note. 

1 In Clapp 0. Ely, 8 Dutch. 622, 
it was held that a statute which pro- 
vided that no judgment of the Su- 
preme Court should be reversed by 
the Court of Errors and Appeals, 
unless a majority of those members 
of the court who were competent to 
sit on the hearing and decision should 
concur in the reversal, was unconsti- 
tutional. Its effect would be, if the 
court were not full, to make the 
opinion of the minority in favor of 
affirmance control that of the majority 
in favor of reversal, unless the latter 
were a majority of the whole court. 
Such a provision in the constitution 
might be proper and unexceptionable; 
but if the constitution has created a 
court of appeals, without any re- 
stiiction of this character, the ruling 
of this case is that the legislature 
cannot impose it. The court was 
nearly equally divided, standing 
seven to six. A statute authoriz- 
ing an unofficial person to sit in the 
place of a judge who is disqualified, 
was held void in Van Slyke v. Insur- 
ance Co., 39 Wis. 390; s. c. 20 Am. 
Rep. 50. That judicial power can- 
not be delegated, see Cohen v. Hoff, 
3 Brev. 500. 



118 CONSTITtJTIONAX, LIMITATIONS. [CH. V. 

may perhaps be evidence, where it relates to matters of a public 
nature, as that riots or disorders exist in a certain part of the 
country ; ^ 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.^ 
[* 97] * We come now to a class of cases in regard to which 

there has been serious contrariety of opinion ; springing 
from the fact, perhaps, that the purpose 'sought to be accomplishd 
by the statutes is generally effected by judicial proceedings, so 
that if the statutes are not a direct invasion of judicial author- 
ity, they at least cover ground which the courts usually occupy 
under general laws conferring the jurisdiction upon them. We 
refer to 

Statutes empowering Guardians and other Trustees to sell Lands. 

Whenever it becomes necessary or proper to sell the estate of 
a decedent for the payment of debts, or of a lunatic or other 
incompetent person for the same purpose, or for future support, 
or of a minor to provide the means for his education and nurture, 
or for the most profitable investment of the proceeds, or of ten- 
ants in common to effectuate a partition between them, it will 
probably be found in every State that some court is vested with 
jurisdiction to make the necessary order, if the facts after a 
hearing of the parties in interest seem to render it important. 
The case is eminently one for judicial investigation. There are 
facts to be inquired into, in regard to which it is always possible 
that disputes may arise ; the party in interest is often 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 
ex parte, there is mor.e than the ordinary opportunity for fraud 
upon the party interested, as well as upon the authority which 

1 Rexu. Sutton, 4M.-&S. 532. 80; Lothrop v. Steadman, 42 Conn. 

2 Elmendorf v. Carmiohael, 3 Litt. 583, 592. 
478 ; Parmelee v. Thompson, 7 Hill 



CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 119 

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 afford an' opportunity for the presentation of 
any facts which might bear upon the propriety of granting the 
applications. 

But it will sometimes be found that the general laws provided 
for these cases are not applicable to some which arise ; or, if appli- 
cable, 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. legis- 
lative authority to intervene, and by special statute to grant 
the permission which, under the general law, would be 
granted by the courts. The * power to pass such statutes [* 98] 
has often been disputed, and it may be well to see upon 
what basis of authority as well as of reason it rests. 

If in fact the inquiry which precedes the grant of authority is 
in its nature judicial, it would seem clear that such statutes must 
be ineffectual and void. But if judicial inquiry is not essential, 
and the legislature maj' confer the power of sale in such a case 
upon an ex parte presentation of evidence, or upon the represen- 
tations 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 suoh cases, than the legislative 
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 prop- 
erty into personal, in order to effectuate the purposes of the 
trust, and to accomplish objects in the interest of the cestui que 
trust not otherwise attainable, there is nothing in the granting of 

1 There are constitutional provi- persons under ,legal disability. Per- 

sionsin Kentucky, Virginia, Missouri, haps the general pi-ovision in some 

Oregon, Nevada, Indiana, Maryland, other constitutions, forbidding special 

New Jersey, Arkansas, Florida, Illi- laws in cases where a general law 

nois, Wisconsin, Texas, West Vir- could be made applicable, might also 

ginia, Michigan, and Colorado, be held to exclude such special au- 

forbidding special laws licensing the thorization. 
sale of the lands of minors and other 



120 CONSTITUTIONAL LIMITATIONS. [CH. V. 

permission which is in' its nature judicial. To grant permission is 
merely to enlarge the sphere of the judiciary authority, the better 
to accomplish 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 usurpation 
of power if the legislature shall, by direct action, grant the per- 
mission. 

In the case of Rice v. Parkman,i certain minors having become 
entitled to real estate by descent from their mother, the legisla- 
ture passed a special statute empowering their father as guardian 
for them, and, after giving bond to the judge of probate, to sell 
and convey the lands, and put the proceeds at interest on good 
security for the benefit of the minor owners. A sale was made 
accordingly ; but the children, after coming of age, brought suit 
against the party claiming under the sale, insisting that the 
special statute was void. There was in force at the time this 
special statute was passed a general statute, under which license 
might have been granted by the courts; but it was held that 

this general law did not deprive the legislature of that 
[* 99] full * and complete control over such cases which it would 

have possessed had no such statute existed. '• If," say 
the court, " the power by which the resolve authorizing the sale in 
this case was passed were of a judicial nature, it would be very 
clear that it could not have been exercised by the legislature with- 
out violating an express provision of the constitution. But it 
does not seem to us to be of this description of power ; for it was 
not a case of controversy between party and party, nor is there 
any decree or judgment affecting the title to property. The 
only object of the authority granted by the legislature was to trans- 
mute real into personal estate, for purposes beneficial to all who 
were interested therein. This is a power frequently exercised by 
the legislature of this State, since the adoption of the constitution, 
and by the legislature of the province and of the colony, while 
under the sovereignty of Great Britain, analogous to the power 
exercised by the British Parliament on similar subjects, time out 
of mind. Indeed, it seems absolutely necessary for the interest of 
those who, by the general rules of law, are incapacitated from dis- 
posing of their property, that a power should exist somewhere of 

1 16 Mass. 326. 



CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 121 

converting lands into money. For otherwise many minors might 
suffer, although having propert/; it not being in a condition to yield 
an income. This power must rest in the legislature, in this Com- 
monwealth ; that body being alone competent to act as the general 
guardian and protector of those who are disabled to act for them- 
selves. 

" It was undoubtedly wise to delegate this authority to other 
bodies, whose sessions are regular and constant, and whose struc- 
ture may enable them 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 
each town, or to the clerks or registers of the counties, it being 
a mere ministerial act, certainly i-equiring discretion, and some- 
times knowledge of law, for its due exercise, but still partaking 
in no degree of the characteristics of judicial power. It is doubt- 
less included in the general authority granted by the people to 
the legislature by the constitution. For full power and authority 
is given from time to time to make, ordain, and establish all 
manner of wholesome and reasonable orders, laws, stat- 
utes, *and oi-dinances, directions, and restrictions (so as [*100] 
the same be not repugnant or contrary to the constitu- 
tion), as they shall judge to be for the good and welfare of the 
Commonwealth, and of the subjects thereof. No one imagines 
that, under this general authority, the legislature could deprive a 
citizen of his estate, or impair any valuable contract in which he 
might be interested. But there seems to be no reason to doubt 
that, upon his application, or the application of those who properly 
represent him, if disabled from acting himself, a beneficial change 
of his estate, or a sale of it for purposes necessary and convenient 
for the lawful owner, is a just and proper subject for the exercise 
of that authority. It is, in fact, protecting him in his property, 
which the legislature is bound to do, and enabling him to derive 
subsistence, comfort, and education from property which might 
otherwise be wholly useless during that period of life when it 
might be most beneficially employed. 

" If this be not true, then tlie general laws, under which so 
many estates of minors, persons non compos mentis, and others, 
have been sold and converted into mone-y, are unauthorized by 



122 CONSTITUTIONAL LIMITATIONS. [CH. V. 

the constitution, and void. For the courts derive their authority 
from the legislature^ and, it not being of a judicial nature, if the 
legislature had it not, they could not communicate it to any 
other body. Thus, if there were no power to relieve those from 
actual distress who had unproductive property, and were disabled 
from conveying it themselves, it would seem that one of the 
most essential objects of government — that of providing for the 
welfare of the citizens — would be lost. But the argument which 
has most weight on the part of the defendants is, that the legislaT 
tiire has exercised its power over this subject in the only consti- 
tutional way, by establishing a general provision ; and that, having 
done this, their authority has ceased, they having no right to 
interfere in particular cases. And if the question were one of 
expediency only, we should perhaps be coilvinced by the argu- 
mentj that it would be better for all such applications to be made 
to the courts empowered to sustain them. But as a question 
of right, we think the argument fails. The constituent, when he 
has delegated an authority without an interest, may do the act 
himself which he has authorized another to do ; and especially 
when that constituent is the legislature, and is not prohibited by 

the constitution from exercising the authority. Indeed, 
[* 101] the * whole authority might be revoked, and the legisla^ 

ture resume the burden of the business to itself, if in its 
wisdom it should determine that the common welfare required 
it. It is not legislation which must be by general acts and rules, 
but the use of a parental or tutorial power, for purposes of kind- 
ness, without interfering with or prejudice to the rights of any but 
those who apply for specific relief. The title of strangers is not 
in any degree affected by such an interposition." ^ 

1 In Shumway B.Bennett, 29 Mich, subject, Galesburg o. Hawkinson, 
451, the distinction between judicial 75 111. 152. Compare Burlington v. 
and administrative power is pointed -Leebrict, 43 Iowa, 252. In Super- 
out, and it is held that the question of visors of Election, 114 Mass. 247, 
incorporating territory as a village s. c. 19 Am. Rep. 341, it is decided 
cannot be made a judicial question; that the courts cannot be vested with 
A like decision is made by Chancellor authority to appoint inspectors of 
Cooper, in Ex parte Burns, 1 Tenn. election. For the' distinction between 
Ch. R. 83, though it is said in that political and judicial power, see fur- 
case that the organization of cor- ther, Dickey v. Reed, 78 111. 261; 
porations which are created by leg- Commonwealth v. Jones, 10 Bush, 
islative authority may be referred 725. And see ^osf, p. * 106 and notes, 
to the courts. See, on the same In Hegarty's Appeal, 75 Penn. St. 



CH. v.] POWERS EXEECISED BY LEGISLATIVE DEPARTMENT. 123 



A similar statute was sustained by the Court for the Correction 
of Errors in New York. " It is clearly," says the Chancellor, 
" within the powers of the legislature, as parens patrioB, to prescribe 
such rules 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 
be so far extended as to transfer the beneficial use of the property 
to another person, except in those cases where it can legally be 
presumed the owner of the property would himself have given the 
use of his property to the other, if he had been in a situation to 
act for himself, as in the case of a provision out of the estate of an 
infant or lunatic for the support of an indigent parent or other 
near relative." ^ 



503, the power of the legislature to 
authorize a trustee to sell the lands of 
parties 'who were sui juris, and might 
act on their own behalf, was denied, 
and the case was distinguished from 
Norris v. Clymer, 2 Penn. St. 277, 
and others which had followed it. 

1 Cochran v. Van Surlay, 20 Wend. 
373. See the same case in the Su- 
preme Court, sub nom. Clarke v. Van 
Surlay, 15 Wend. 486. See also 
Suydam v. Williamson, 24 How. 427; 
Williamson v. Suydam, 6 Wall. 723 ; 
Heirs of Holman v. Bank of Norfolk, 
12 Ala. 369 ; Florentine v. Barton, 
2 Wall. 2:0. In Brevoort ». Grace, 
53 N. Y. 245, the power of the legis- 
lature to authorize the sale of lands 
of infants by special statute was held 
to extend to the future contingent 
interests of those not in being, but 
not to the interests of non-consenting 
adults, competent to act on their own 
behalf. Tn Opinions of the Judges, 
4 N. H. 572, the validity of such a 
special statute, under the constitution 
of New Hampshire, was denied. The 
judges say: " The "objection to the 
exercise of such a power by the legis- 
lature is, that it is in its nature both 
legislative and judicial. It is the 
province of the legislature to pre- 
scribe the rule of law, but to apply it 



to particular oases is the business of 
the courts of law. .And the thirty- 
eighth article in the Bill of Rights 
declares that ' in the government of 
the State the three essential powers 
thereof, to wit, the legislative, execu- 
tive, and judicial, ought to be kept as 
separate from, and independent of, 
each other as the nature of a free 
government will admit, or as consist- 
ent with that chain of connection 
that binds the whole fabric of the 
constitution in one indissoluble bond 
of union and amity.' The exercise 
of such a power by the legislature 
can never be necessary. By the ex- 
isting laws, judges of probate have 
very extensive jurisdiction to license 
the sale of real estate of minors by 
their guardians. If the jurisdiction 
of the judges of probate be not suffi- 
ciently extensive to reach all proper 
cases, it may be a good reason why 
that jurisdiction should be extended, 
but can hardly be deemed a sufficient 
reason for the particular interposition 
of the legislature in an individual case. 
If there be a defect in the laws, they 
should be amended. Under our in- 
stitutions all men are viewed as equal, 
entitled to enjoy equal privileges, and 
to be governed by equal laws. If it 
be fit and proper that license should 



124 



CONSTITUTIONAL LIMITATIONS. 



[CH. V. 



[* 102] * The same ruling has often been made in analogous 
cases. In Ohio, a special act of the legislature author- 
izing commissioners to make sale of lands held in fee tail, by 
devisees under a will, in order to cut off the entailment and 
effect a partition between them, — the statute being applied for 
by the mother of the devisees and the executor of the will, and 
on behalf of the devisees, — was held not obnoxious to 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 had proved a will in New 
Hampshire made sale of lands without authority in Rhode Island, 
for the purpose of satisfying debts against the estate, a 
[* 103] subsequent act of the Rhode Island legislature, * con- 
firming the sale, was held not an encroachment upon 

be given to one -guardiS/n, under par- 
ticulai' circumstances, to sell the estate 
of his ward, it is fit and proper that 
all other guardians should, under 
similar circumstances, have the same 
license. This is the very genius and 
spirit of our institutions. And we 
are of opinion that an act of the leg- 
islature to authorize the sale of the 
land of a particular minor by his 
guardian cannot be easily reconciled 
■with the spirit of the article in the 
Bill of Rights which we have just 
cited. It is true that the grant of 
such a license by the legislature to 
the guardian is intended as a privi- 
lege and a benefit to the ward. But 
by the law of the land no minor is 
capable of assenting to a sale of his 
real estate in such a manner as to 
bind himself. And no guardian is 
permitted by the same law to deter- 
mine when the estate of his ward 
ought and when it ought not to be 
sold. In the contemplation 6f the 
law, the one has not sufficient discre- 
tion to judge of the propriety and 
expediency of a sale of his estate, and 
the other is not to be intrusted with 
the power of judging. Such being the 
general law of the land, it is pre- 
sumable that the legislature would be 



unwilling to rest the justification of 
an act authorizing the sale of a mi- 
nor's estate upon any assent which 
the guardian or the minor could give 
in the proceeding. The question then 
is, as it seems to us, Can a ward be 
deprived of his inheritance without 
his consent by an act of the legisla- 
ture which is intended to apply to no 
other individual? The fifteenth ar- 
ticle of the Bill of Rights declares 
that no subject shall be deprived of 
his property but by the judgment of 
his peers or the law of the fand. Can 
an act of the legislature, intended to 
authorize one man to sell the land of 
another without his consent be ' the 
law of the land ' in a free country ? 
If the question proposed to us can be 
resolved into these questions, as it 
appears to us it may, we feel entirely 
confident that the representatives of 
the people of this State will agree 
with us in the opinion we feel our- 
selves bound to express on the 
question submitted to us, that the 
legislature cannot authorize a guar- 
dian of minors, by a special act or 
resolve, to make a valid conveyance 
of the real estate of his wards." 

1 Carroll v. Lessee of Olmsted, 
16 Ohio, 251. 



CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 125 

the judicial power. The land, it was said, descended to the 
heirs subject to a lien for the payment of debts, and there is 
nothing in the nature of the act of authorizing a sale to satisfy 
the lien, which requires that it should be performed by a judicial 
tribunal, oi'.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 the sale 
was made. The decision was afterwards followed in a carefully 
considered case in the same court.^ In each of these cases it is 
assumed that the legislature does not by the special statute de- 
termine the existence or amount of the debts, and disputes con- 
cerning them would be determipable in the usual modes. Many 
other decisions have been made to the same effect.^ 

This species of legislation may perhaps be properly called pre- 
rogative 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 such circumstances 
that the consent of the owner, if capable of giving it, would be 
presumed. It is in the nature of the grant of a privilege to one 

i Wilkinson v. Leland, 2 Pet. 660. Grace, 53 N. Y. 245; Gannett v. 

Compare Brevoort b. Grace, 53 N. Y. Leonard, 47 Mo. 205; Kibby v. Chet- 

245. wood's Adm'rs, 4 T. B. Monr. 94; 

" Watkins v. Holman's Lessee, Shehan's Heirs v. Barnett's Heirs, 

16 Pet. 25-60. See also Florentine 6 T. B. Monr. 594 ; Davis v. State 

«. Barton, 2 Wall. 210; Doe u. Doug- Bank, 7 Ind. 316; Richardson v. 

lass, 8 Blackf. 10. Monson, 22 Conn 98; Ward v. New 

» Thurston v. Thurston, 6 R. I. England, &c. Co., 1 Cliff. 565; Sohier 

296, 302; Williamson u. Williamson, u. • Massachusetts, &c. Hospital, 3 

3 S. «& M. 715; McComb v. Gilkey, Cash. 483; Lobrano v. Nelligan, 9 

29 Miss. 146; Boon v. Bowers, 30 Wall. 295. Contra, Brenhamu. Story, 

Miss. 246; Stewart v. Griffith, 33 Mo. 39 Cal. 179. In Moore v. Maxwell, 

13 ; Estep v. Hutchman, 14 S. & R. 18 Ark. 469, a special statute author- 

435; Snowhill v. Snowhill, 2 Green, izing the administrator of one who 

Ch. 20; Dorsey ». Gilbert, 11 G. & J. held the mere naked legal title to 

87; Norris v. Clymer, 2 Penn. St. convey to the owner of the equitable 

277; Sergeant v. Kuhn, 2 Penn. St. title was held valid. In Stanley v. 

393; Kero. Kitchen, 17 Penn. St 433 ; Colt, 5 Wall. 119, an act permitting 

Coleman v. Carr, Walker, 258; Davi- the sale of real estate which had been 

son V. Johonnot, 7 Met. 388; Towle devised to charitable uses was sus- 

V. Forney, 14 N. Y. 423; Leggett tained, — no diversion of the gift being 

V. Hunter, 19 N. Y. 445 ; Brevoort v. made. 



126 CONSTITUTIONAL LIMITATIONS. [OH. V. 

person, which at the same time affects injuriously the rights of 
no other.i 

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 
incurred on behalf of the estate, and to apply the same to the 
extinguishment of their claims. Now it is evident that this act 
was in the nature of a judicial decree, passed on the application 
of parties adverse in interest to the estate, and in effect 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 
pf a power of inquiry into, and a determination of facts, between 
debtor and creditor, and that, too, ex parte aiid 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 facts disclosed that it proves 
itself." 2 

1 It would be equally competent of the testator to pay debts against 
lor the legislature to authorize a per- his estate would be unconstitutional, 
son under legal disability — e.g. an We do not so understand that decision, 
infant — to convey his estate, as to On the contrary, another case in the 
authorize it to be conveyed by guar- same volume, Edwards' ». Pope, p. 
dian. McComb v. Gilkey, 29 Miss. 465, fully sustains the cases before 
146. decided, distinguishing them from 

2 Lane v. Dorman, 4 111. 242. In Lane ». Dorman. But that indeed is 
Dubois B. McLean, 4 McLean, 486, also done in the principal case, -where 
Judge Pope assumes that the case of the court, after referring to similar 
Lane v. Dorman decides a special act, cases in Kentucky, say: " These cases 
authorizing an executor to sell lands are clearly distinguished from the case 



CH. v.] POWEES EXERCISED BY LEGISLATIVE DEPARTMENT. 127 



* A case in harmony with the one last referred to was [* 105] 
decided by the Supreme Court of Michigan. Under the 
act of Congress "for the relief of citizens of towns upon the 
lands of the United States, under certain circumstances," 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," &c., 
the legislature passed an act authorizing the trustee to give deeds 
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 authorizing no one else to be con- 
sidered or to receive any relief. This was very plainly an at- 
tempted adjudication upon the rights of the parties concerned ; 
it did not establish regulations for the administration of the 
trust, but it adjudged the trust property to certain claimants 
exclusively, in disregard of any rights which might exist in 
others ; and it was therefore declared to be void.^ And it has 



at bar. The acts were for the benefit 
of all the creditors of the estates, 
without distinction ; and in one case, 
in addition, for the purpose of per- 
fecting titles contracted to be made 
by the intestate. The claims of the 
creditors of the intestate were to be 
established by judicial or other satis- 
factory legal proceedings, and, in 
truth, in the case last cited, the com- 
missioners were nothing more than 
special commissioners. The legisla- 
tive department, in passing these acts, 
investigated nothing, nor did an act 
which could be deemed a judicial in- 
quiry. It neither examined proof, 
nor determined the nature or extent 
of claims; it merely authorized the 
application of the real estate to, the 
payment of debts generally, discrimi- 
nating in favor of no one creditor, 
and giving no one a preference over 
another. Not so in the case before 
us; the amount is investigated and 
ascertained, and the sale is directed 
for the benefit of two persons exclu- 
sively. The proceeds are to be applied 
to the payment of such claims and 
none other, for liabilities said to be 



incurred but not liquidated or satis- 
fied ; and those, too, created after the 
death of the intestate." See also 
Mason v. Wait, 5 111. 127-134 ; Dav- 
enport V. Young, 16 111. 551 ; Eozier 
V. Fagan, 46 111. 404. The case of 
Estep V. Hutchman, 14 S. & R. 435, 
would seem to be more open to ques- 
tion on this point than any of the 
others before cited. It was the case 
of a special statute, authorizing the 
guardian of infant heirs to convey 
their lands in satisfaction of a con- 
tract made by their ancestor; and 
which was sustained. Compare this 
with Jones ». Perry, 10 Yerg. 59, 
where an act authorizing a guardian 
to sell lands to pay the ancestor's 
debts was held void. 

1 Cash, Appellant, 6 Mich. 198. 
The case of Powers v. Bergen, 6 N. 
Y. 358, is perhaps to be referred to 
another principle than that of en- 
croachment upon judicial authority. 
That was a case where the legislature, 
by special act, had undertaken to 
authorize the sale of property, not 
for the purpose of satisfying liens 
upon it, or of meeting or in any way 



128 



CONSTITUTIONAL LIMITATIONS. 



[CH. V. 



[* 106] also been held that, whether a * corporation has been 

guilty of abuse of authority under its charter, so i\,s jiistly 

to subject it to forfeiture,^ and whether a widow is entitled to 



providing for the necessities or wants 
of the owners, but solely, after pay- 
ing expenses, for the investment of 
the proceeds. It appears from that 
case that the executors under the will 
of the former owner held the lands in 
ti'ust for a daughter of the testator 
during her natural life, with a vested 
remainder in fee in her two children. 
The special act assumed to empower 
them to sell and convey the complete 
fee, and apply the proceeds, Jirst, 
to the payment of their commis- 
sions, costs, and expenses; second, 
to the discharge of assessments, liens, 
charges, and incumbrances on the 
land, of which, however, none were 
shown to exist ; and, third, to invest 
the proceeds and pay over the income, 
after deducting taxes and charges, to 
the daughter during her life, and 
after her decease to convey, assign, 
or pay over the same to the persons 
who would be entitled under the will. 
The court regarded this as an un- 
authorized interference with private 
property upon no necessity, and alto- 
gether void, as depriving the owners 
of their property contrary to the 
' ' law of the land. " At the same time 
the authority of those cases, where it 
has been held that the legislature, act- 
ing as the guardian and protector of 
those who are disabled to act for 
themselves by reason of infancy, lu- 
nacy, or other like cause, may con- 
stitutionally pass either general or 
private laws, under which an effectual 
disposition of their property might 
be made, was not questioned. The 
court cite, with apparent approval, 
the cases, among others, of Rice v. 
Parkman, 16 Mass. 326 ; Cochran v. 
Van Surlay, 20 Wend. 365; and 
Wilkinson ». Leland, 2 Pet. 657. 
The case of Ervine's Appeal, 16 
Penn. St. 256, was similar, in the 



principles involved, to Powers v. Ber- 
gen, and was decided in the same 
way. See also Kneass's Appeal, 31 
Penn. St. 87, and compare with Ker 
V. Kitchen, 17 Penn. St. 438 ; Mar- 
tin's Appeal, 23 Penn. 437 ; Hegarty's 
Appeal, 75 Penn. St. 503 ; Tharp v. 
Fleming, 1 Houston, 592. 

1 State V. Noyes, 47 Me. 189; 
Campbell v. Union Bank, 6 How. 
(Miss.) 661 ; Canal Co. v. Railroad 
Co., 4 G. & J. 122 ; Regents of Uni- 
versity V. Williams, 9 G. & J. 365. 
In Miners' Bank of Dubuque v. United 
States, 1 Morris, 482, a clause in a 
charter authorizing the legislature to 
repeal it for any abuse or misuser of 
corporate privileges was held to refer 
the question of abuse to the legisla- 
tive judgment. In Erie & North East 
R. R. Co. V. Casey, 26 Penn. St. 287, 
on the other hand, it was held that 
the legislature could not conclude the 
corporation by its repealing act, but 
that the question of abuse ot corpo- 
rate authority would be one of fact 
to be passed upon, if denied, by a 
jury, so that the act would be valid 
or void as the jury should find. 
Compare Flint & Fentonville P. R. 
Co. B. WoodhuU, 25 Mich. 99, in 
which it was held that the reservation 
of a power to repeal a charter for 
violation of its provisions necessarily 
presented a judicial question, and the 
repeal must be preceded by a proper 
judicial finding. In Carey v. Giles, 9 
Geo. 253, the appointment by the 
legislature of a receiver for an insolvent 
bank was sustained; and in Hindman 
V. Piper, 50 Mo. 292, a legislative 
appointment of a trustee was also 
sustained in a peculiar case. In 
Lothrop V. Steadman, 42 Conn. 583, 
the power of the legislature as an 
administrative measure to appoint a 
trustee to take charge of and manage 



CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 129 

dower in a specified parcel of land,^ are judicial questions which 
cannot be decided by the legislature. 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 legislative from judicial duties.^ As well might the 
legislature proceed to declare that one man is indebted to another 
in a sum specified, and establish by enactment a conclusive de- 
mand against him.* 

* We have elsewhere referred to a number of cases where [* 107] 
statutes have been held unobjectionable which validated 
legal proceedings, notwithstanding irregularities apparent in them.* 
These statutes may as properly be made applicable to judicial as 
to ministerial proceedings ; and although, when they refer to such 
proceedings, they may at first seem like an interference with 
judicial authority, yet if they are only in aid of judicial proceed- 



the affairs of a corporation whose char- 
ter had been repealed, was affirmed. 
For a similar principle, see Albertson 
V. Landon, 42 Conn. 209. And see 
post, p. *365. 

1 Edwards v. Pope, 3 Scam. 465. 

2 The unjust and dangerous char- 
acter of legislation of this description 
is well stated by the Supreme Court 
of Pennsylvania: " When, in the exer- 
cise of proper legislative powers, gen- 
eral laws are enacted which bear, or 
may bear, on the whole community, 
if they are unjust and against the 
spirit of the constitution, the whole 
community will beinterested to. procure 
their repeal by a voice potential. And 
that is the great security for just and 
fair legislation. But when individuals 
are selected from the mass, and laws are 
enacted affecting their property, with- 
out summons or notice, at the instiga- 
tion of an interested party, who is 
to stand up for them, thus isolated 
from the mass, in injury and injustice, 
or where are they to seek relief from 
such acts of despotic power? — They- 



have no refuge but in the courts, the 
only secure place for determining 
conflicting rights by due course of 
law. But if the judiciary give way, 
and, in the language of the Chief 
Justice in Greenough v. Greenough, 
in 11 Penn. St. 494, ' confesses itself 
too weak to stand against the antag- 
onism of the legislature and the bar,' 
one independent co-ordinate branch 
of the government will become the 
subservient handmaid of the other, 
and a quiet, insidious revolution will 
be effected in the administration of 
the government, whilst its form on 
paper remains the same." Ervine'a 
Appeal, 16 Penn. St. 268. 

' A statute is void which under» 
takes to make railroad companies 
liable for the expense of coroners' 
inquests and of the burial of persons 
dying on the cars, or killed by collisioiji 
or other accident occurring to the cars, 
irrespective of any question of negli- 
gence. Ohio & M. R. R. Co. v. Lackey^ 
78 111. 55; s. c. 20 Am. Rep. 259. 

■» Seej30«i, pp. *371-*381. 



9 



130 CONSTITUTIONAL LIMITATIONS. [OH. V. 

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 charge 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 dis- 
pense with by statute after the proceedings have been taken, if the 
court has failed to observe any of those formalities. But it would 
not be competent for the legislature to authorize a court to pro- 
ceed and adjudicate upon the rights of parties, without giving 
them an opportunity to be heard before it ; and, for the same rea- 
son, it would be incompetent for it, by retrospective legislation, to 
make valid proceedings which had been had in the courts, but 
which were void for want of jurisdiction over the parties. Such a 
legislative enactment would be doubly objectionable : first, as an 
exercise of judicial power, since, the proceedings in court being 
void, it would be the statute alone which would constitute an 
adjudication upon the rights of the parties ; and, secoMC?, because, 
in all judicial proceedings, notice to parties and an opportunity 
to defend are essential, — both of which they would be de- 
prived of in such a case.^ And for like reasons a statute vali- 

^ In McDaniel v. Correll, 19 111. decree, the legacies given to those 
226, it appeared that a statute had absent defendants by the will are 
been passed to make valid certain taken from them and given to others^ 
legal proceedings by which an alleged according to our statute of descents, 
will was adjudged void, and which Until the passage of the act in ques- 
were had against non-resident de- tion, they were not bound by the 
fendants, over whom the courts had verdict of the jury in this case, and 
obtained no jurisdiction. The court it could not form the basis of a valid 
say: "If it was competent for the decree. Had the decree beSn ren- 
legislature to make a void proceeding dered before the passage of the act, it 
valid, then it has been done in this would have been as competent to make 
case. Upon this question we cannot that valid as it was to validate the an- 
for a moment doubt or hesitate. They tecedent proceedings upon which alone 
can no more impart a binding efficacy the decree could rest. The want of 
to a void proceeding, than they can jurisdiction over the defendants was 
take one man's property from him as fatal to the one as it could be to 
and give it to another. Indeed, to the other. If we assume the act to 
do the one is to accomplish the other, be valid, then the legacies which be- 
By the decree ifi this case the will in fore belonged to the legatees have now 
question was declared void, and, con- ceased to be theirs, and this result has 
sequently, if effect be given to the been brought about by the legislative • 



CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMEKT. 131 



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 nor 
of the subject-matter, would also be void.^ 



act alone. The efiect of the act upon 
them is precisely the same as if it had 
declared in direct terms that the leg- 
acies bequeathed by this ■will to these 
defendants should not go to them, 
but should descend to the heirs-at-law 
of the testator, according to our law 
of descents. This it will not be pre- 
tended that they could do directly, 
and they had no more authority to 
do it indirectly, by making proceed- 
ings binding upon them which were 
void in law." See, to the same effect, 
Richards v. Rote, 68 Penn. St. 248; 
Pryor v. Downey, 50 Cal. 388 ; 8. c. 
19 Am. Rep. 656 ; Lane v. Nelson, 
79 Penn. St. 407 ; Shonk v. Brown, 61 
Penn. St. 320 ; Spragg v. Shriver, 25 
Penn. St. 282. 

1 In Denny v. Mattoon, 2 Allen, 
361, a judge in insolvency had made 
certain orders in a case pending in 
another jurisdiction, and which the 
courts subsequently declared to be 
void. The legislature then passed an 
act declaring that they " are hereby 
confirmed, and the same shall be taken 
and deemed good and valid in law, to 
all intents and purposes whatsoever." 
On the question of the validity of this 
act the court say: " The precise ques- 
tion is, whether it can be held to 
operate so as to confer a jurisdiction 
over parties and proceedings which 
it has been judicially determined 
does not exist, and give validity to 
acts and processes which have been 
adjudged void. The statement of this 
question seems to us to suggest the 
obvious and decisive objection to any 
construction of the statute which 
would lead to such a conclusion. It 
would be a direct exercise by the legis- 
lature of a power in its nature clearly 
judicial, from the use of which it is 
expressly prohibited by the thirtieth 



article of the Declaration of Rights. 
The line which marks and separates 
judicial from legislative duties and 
functions is often indistinct and un- 
certain, and it is sometimes difficult 
to decide within which of the two 
classes a particular subject falls. All 
statutes of a declaratory nature, which 
are designed to interpret or give a 
meaning to previous enactments, or 
to confirm the rights of parties either 
under their own contracts or growing 
out of the proceedings of courts or 
public bodies, which lack legal valid- 
ity, involve in a certain sense the 
exercise of a judicial power. They 
operate upon subjects which might 
properly come within the cognizance 
of the courts and form the basis of 
judicial consideration and judgment. 
But they may, nevertheless, be sup- 
ported as being within the legitimate 
sphere of legislative action, on the 
ground that they do not declare or 
determine, but only confirm rights; 
that they give effect to the acts of 
parties according to their intent; that 
they furnish new and more efficacious 
remedies, or create a more beneficial 
interest or tenure, or, by supplying 
defects and caring informalities in 
the proceedings of courts, or of pub- 
lic* officers acting within the scope 
of their authority, they give effect to 
acts to which there was the express 
or implied assent of the parties in- 
terested. Statutes which are intended 
to accomplish such purposes do not 
necessarily invade the province, or 
directly interfere with the action of 
judicial tribunals. But if we adopt 
the broadest and most comprehensive 
view of the power of the legislature, 
we must place some limit beyond 
which the authority of the legisla- 
ture cannot go without trenching on 



132 



CONSTITUTIONAL LIMITATIONS. 



[CH. V. 



[* 109] 



Legislative Divorces. 



There is another class of cases in which it would seem that 
action ought to be referred exclusively to the judicial tribunals, 
but in respect to which the prevailing doctrine seems to 
[* 110] be, that the legislature * has complete control unless spe- 
cially restrained by the State constitution. The granting 
of divorces from the bonds of matrimony was not confided to the 
courts in England, and from the earliest days the Colonial and 
State legislatures in this country have assumed to possess the same 
power over the subject which was possessed by the Parliament, and 

the clear and well-defined boundaries 
of judicial power." " Although it 
may be difficult, if not' impossible, 
to lay down any general rule which 
may serve to determiue, in all cases, 
whether the limits of constitutional 
restraint are overstepped by the ex- 
ercise by one branch of the govern- 
ment of powers exclusively delegated 
to another, it certainly is practicable 
to apply to each case as it arises some 
test by which to ascertain whether 
this fundamental principle is violated. 
If, for example, the practical operation 
of a statute is to determine adver- 
sary suits pending between party and 
party, by substituting in place of the 
well-settled rules of law the arbitrary 
will of the legislature, and . thereby 
controlling the action of the tribunal 
before which the suits are pending, 
no one can doubt that it would be an 
unauthorized act of legislation, be- 
cause it directly infringes on the 
peculiar and appropriate functions of 
the judiciary. It is the exclusive 
province of the courts of justice to 
apply established principles to cases 
within their jurisdiction, and to en- 
force their jurisdiction by render- 
ing judgments and executing them 
by suitable process. The legislature 
have no power to interfere with this 
jurisdiction in such manner as to 
change the decision of cases pending 
before courts, or to impair or set 



aside their judgments, or to take 
cases out of the settled course of 
judicial proceeding. It is on this 
principle that it has been held, that 
the legislature have no power to grant 
a new trial or direct a rehearing of a 
cause which has been once judicially 
settled. The right to a review, or to 
try anew facts which have been de- 
termined by a verdict or decree, 
depends on fixed and well-settled 
principles, which it is the duty of 
the court to apply in the exercise 
of a sound judgment and discretion. 
These cannot be regulated or gov- 
erned by legislative action. Taylor 
V. Place, 4 R. I. 324, 337; Lewis v. 
Webb, 3 Me. 326; Dechastellux v. 
Fairchild, 15 Penn. St 18. A fortiori, 
an act of the legislature cannot set 
aside or amend final judgments or 
decrees." The court further con- 
sider the general subject at length, 
and adjudge the particular enactment 
under consideration void, both as an 
exercise of judicial authority, and 
also because, in declaring valid the 
void proceedings in insolvency against 
the debtor, under which assignees had 
been appointed, it took away from 
the debtor his property, " not by due 
process of law or the law of the land, 
but by an arbitrary exercise of legis- 
lative will." See, further, Griffin's 
Executor v. Cunningham, 20 Grat. 
100 ; State v. Doherty, 60 Me. 504. 



CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 133 



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 question of divorce involves investigations which are 
properly of a judicial nature, and the jurisdiction over divorces 
ought to be confined exclusively to the judicial tribunals, under 
the limitations to be prescribed by law ; " ^ and so strong is the 
general conviction of this fact, that the people in framing their 
constitutions, in a majority of the States, have positively forbidden 
any such special laws.^ 



1 2 Kent, 106. See Levins ». Slea- 
tor, 2 Greene (Iowa), 607. 

^ The following are constitutional 
provisions : — Alabama : Divorces from 
the bonds of matrimony shall not be 
granted but in the cases by law pro- 
vided for, and by suit in chancery; 
but decrees in chancery for divorce 
shall be final, unless appealed from 
in the manner prescribed by law, 
within three months from the 3ate 
of the enrolment thereof. Arkansas : 
The General Assembly shall not have 
power to pass any bill of divorce, but 
may prescribe by law the manner in 
which such cases may be investigated 
in the courts of justice, and divorces 
granted. California : No divorce shall 
be granted by the legislature. The 
provision is the same or similar in 
Iowa, Indiana, Maryland, Michigan, 
Minnesota, Nevada, Nebraska, Ore- 
gon, New Jersey, Texas, and Wis- 
consin. Florida: Divorces from the 
bonds of matrimony shall not be 
allowed but by the judgment of a 
court, as shall be prescribed by law. 
Georgia: The Superior Court shall 
have exclusive jurisdiction in all cases 
of divorce, both total and partial. 
Illinois: The General Assembly shall 
not pass . . . special laws . . . for 
granting divorces. Kansas: And 
power to grant divorces is vested 
in the District Courts subject to 
regulations by law. Kentucky: The 
General Assembly shall have no 
power to grant divorces, . . . but 
by general laws shall confer such 



powers on the courts of justice. 
Louisiana : The legislature may enact 
general laws regulating the . . . grant- 
ing of divorce; but no special laws 
shall be enacted relating to particular 
or individual cases. Massachusetts: 
All causes of marriage, divorce, and 
alimony . . . shall be heard and de- 
termined by the Governor and Coun- 
cil, until the legislature shall by law 
make other provision. Mississippi: 
Divorces from the bonds of matri- 
mony shall not be granted but in 
cases provided for by law, and by 
suit in chancery. New Hampshire: 
All causes of marriage, divorce, and 
alimony . . . shall be heard and tried 
by the Superior Court, until the leg- 
islature shall by law make other pro* 
vision. New York: . . . nor shall any 
divorce be granted otherwise than by 
due judicial proceedings. North Car- 
olina : The General Assembly shall 
have power to pass general laws 
regulating divorce and alimony, but 
shall not have power to grant a 
divorce or secure alimony in any 
particular case. Ohio: The General 
Assembly shall grant no divorce, nor 
exercise any judicial power, not herein 
expressly conferred. Pennsylvania : 
The legislature shall not have power 
to enact laws annulling the contract 
of marriage in any case where by Jaw 
the courts of this Commonwealth are, 
or hereafter may be, empowered to 
decree a divorce. Tennessee: The 
legislature shall have no power to 
grant divorces, but may authorize 



134 CONSTITUTIONAL LIMITATIONS. [CH. V. 

[* 111] * Of the judicial decisions on the subject of legislative 
power over divorces there seem to be three classes of cases. 
The doctrine of the first class seems to be this : The granting of a 
divorce may be either a legislative or a judicial act, according as 
the legislature shall refer its consideration to the courts, or reserve 
it to itself. The legislature has the same full control over the sta- 
tus of husband and wife which it possesses over the other domestic 
relations, and may permit or prohibit it according to its own views 
of what is for the interest of the parties or the good of the public. 
In dissolving the relation, it proceeds upon such reasons as to it 
seem sufficient ; and if inquiry is made into the facts of the past, 
it is no more than is needful when any change of the law is con- 
templated, with a view to the establishment of more salutary rules 
for the future. The inquiry, therefore, is not judicial in its nature, 
and it is not essential that there be any particular finding of mis- 
conduct or unfitness in the parties. As in other cases of legisla- 
tive action, the reasons or the motives of the legislature cannot be 
inquired into ; the relation which thft law permitted before is now 
forbidden, and the parties are absolved from the obligations grow- 
ing out of that relation which continued so long as the relation 
existed, but which necessarily cease with its termination. Mar- 
riage is not a contract, but a status ; the parties cannot have vested 

the courts of justice to grant them which was not a legal cause for divorce 
for such causes as may be specified under the general laws. Teft u. Teft, 
by law; but such laws shall be gen- 3 Mich. 67. See also Clark ». Clark, 
Cral and uniform in their operation 10 N. H. 387; Simonds v. Simonds, 
throughout the State. Virginia : The 103 Mass. 572 ; s. c. 4 Am. Rep. 576. 
legislature shall confer on the courts The case of White v. White, 105 
the power to grant divorces, . . . but Mass. 325, was peculiar. A woman 
Bhall not by special legislation grant procured a divorce from her husband, 
relief in such cases. West Virginia : and by the law then in force he was 
The Circuit Courts shall have power prohibited from marrying again ex- 
under such general regulations as may cept upon leave procured from the 
be prescribed by law, to grant di- court. He did marry again, however, 
vorces, . . . but relief shall not be and the legislature passed a special 
granted by special legislation in such act to afiSrm this marriage. In pur- 
cases. Missouri: The General As- suance of a requirement of the con- 
sembly shall not pass any local or stitution, jurisdiction of all cases of 
special law . . . granting divorces. In marriage and divorce had previously 
Colorado the provision is the same, been rested by law in the courts. 
.Under the Constitution of Michigan Held, that this took from the legis- 
it was held that, as the legislature was lature all power to act upon the sub- 
prohibited from granting divorces, ject in special cases, and the attempt 
they could pass no special act author- to validate the marriage was conse- 
izing the courts to divorce for a cause quently ineffectual. 



CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 135 



rights of property in a domestic relation ; therefore the legislative 
act does not come under condemnation as depriving parties 
of 'rights contrary to the law of the land, but, as in other [* 112] 
cases within the scope of the legislative authority, the 
legislative will must be regarded as sufficient reason for the rule 
which it promulgates.^ 



1 The leading case on this subject 
is Starr ». Pease, 8 Conn. 541. On 
the question whether a divorce is 
necessarily a judicial act, the court 
say: " A further objection is urged 
against this act; viz., that by the new 
constitution of 1818, there is an entire 
separation of the legislative and ju- 
dicial departments, and that the 
legislature can now pass no act or 
resolution not clearly warranted by 
that constitution; that the constitu- 
tion is a grant of power, and not a 
limitation of powers already possessed; 
and, in short, that there is no reserved 
power in the legislature since the 
adoption of this constitution. Pre- 
cisely the opposite of this is true. 
From the settlement of the State 
there have been certain fundamental 
rules by which power has been ex- 
ercised. These rules were embodied 
in an instrument called by some a 
constitution, by others a charter. All 
agree that it was the first constitution 
ever made in Connecticut, and made, 
too, by the people themselves. It 
gave very extensive powers to the 
legislature, and left too much (for it 
left every thing almost) to their will. 
The constitution of 1818 proposed to, 
and in fact did, limit that will. It 
adopted certain general principles by 
a preamble called a Declaration of 
Bights ; provided for the election and 
appointment of certain organs of the 
government, such as the legislative, 
executive, and judicial departments; 
and imposed upon them certain re- 
straints. It found the State sovereign 
and independent, with a legislative 
power capable of making all laws 
necessary for the good of the people, 



not forbidden by the Constitution of 
the United States, nor opposed to the 
sound maxims of legislation; and it 
left them in the same condition, ex- 
cept so far as limitations were pro- 
vided. There is now and has been a, 
law in force on the subject of divorces. 
The law was passed a hundred and 
thirty years ago. It provides for 
divorces a vinculo matrimonii in four 
cases; viz., adultery, fraudulent con- 
tract, wilful desertion, and seven 
years' absence unheard of. The law 
has remained in substance the same 
as it was when enacted in 1667. 
During all this period the legislature 
has interfered like the Parliament of 
Great Britain, and passed special acts 
of divorce a vinculo matrimonii; and 
at almost every session since the Con- 
stitution of the United States went 
into operation, now forty-two years, 
and for the thirteen years of the ex- 
istence of the Constitution of Con- 
necticut, such acts have been, in 
multiplied cases, passed and sanc- 
tioned by the constituted authorities 
of our State. We are not at liberty 
to inquire into the wisdom of our 
existing law upon this subject; nor 
into the expediency of such frequent 
interference of the legislature. We 
can only inquire into the constitu- 
tionality of the act under considera- 
tion. The power is not prohibited 
either by the Constitution of the Unit- 
ed States or by that of this State. 
In view of the appalling consequences 
of .declaring the general law of the 
State, or the repeated acts, of our 
legislature, unconstitutional and void, 
consequences easily perceived, but not 
easily expressed, — such as bastardiz- 



186 CONSTITUTIONAL LIMITATIONS. [CH. V. 

[* 113] * The second class, of cases to which we have alluded 
hold that divorce is a judicial act in those cases upon 
which the general laws confer on the courts power to adjudicate ; 
and that consequently in those cases the legislature cannot pass 
special laws, but its full control over the relation of marriage will 
leave it at liberty to grant divorces in other cases, for such causes 
as shall appear to its wisdom to justify them.^ 

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 constitutions other 
than those which in general terms separate the legislative and 
judicial functions, and some of them would perhaps have been 
differently decided but for those other clauses. But it is safe to 
say, that the general sentiment in the legal profession is against 
the rightfulness of special legislative divorces ; and it is believed 
that, if the question could originally have been considered by the 
courts, unembarrassed by any considerations of long acquiescence, 
and of the serious consequences which must result from affirming 

ing the issue and subjecting the parties 16 Me. 479; Adams v. Palmer, 51 

to punishment for adultery, — the Me. 480. See also Townsend v. 

court should come to the result only Griffin, 4 Harr. 440. In a -well-rea- 

on a solemn conviction that their soned case in Kentucky, it was held 

oaths of office and these constitutions that a legislative divorce obtained on 

imperiously demand it. Feeling my- the application of one of the parties 

self no such conviction, I cannot pro- while suit for divorce was pending in 

nounce the act void." Vei Daggett, 3., a court of competent jurisdiction, 

Hosmer, Ch. J., and Bissell, J., con- would not affect the rights to property 

curring. Petep, J., dissented. Upon of the other, growing out of the rela- 

the same subject, see Crane v. Me- tion. Gaines v. Gaines, 9 B. Monr. 

ginnis, 1 G. & J. 463; Wright v. 295. 

Wright, 2 Md. 429; Gaines v. Gaines, ^ Brigham v. Miller, 17 Ohio, 445; 
9 B. Monr. 295; Cabell v. Cabell, Clark ». Clark, 10 N. H. 380; Ponder 
1 Met. (Ky.) 319; Dickson v. Dick- v. Graham, 4 Flor. 28; State ». Fry, 
son, 1 Yerg. 110; Melizet's Appeal, 4 Mo. 120; Bryson v. Campbell, 12 
17 Peim. St. 449; Cronise ». Cronise, Mo. 498; Bryson v. Bryson, 17 Mo. 
54 Penn. St. 255; Adams v. Palmer, 590; Same v. Same, 44 Mo. 232. 
51 Me. 480; Townsend v. Griffin, 4 See also Jones v. Jones, 12 Penn. St. 
Harr. 440; Noel v. Ewing, 9 Ind. 37; 353, 354. Under the Constitution of 
and the examinatidn of the whole Massachusetts, the power of the leg- 
subject by Mr. Bishop, in his work islature to grant divorces is denied, 
on Marriage and Divorce. Sparhawk v. Sparhawk, 116 Mass. 
1 Levins v. Sleator, 2 Greene 315. See clause in constitution, anie, 
(Iowa)j _ 604 ; Opinions of Judges, p. * 110, note. 



CH. v.] Pp-WERS EXERCISED BY LEGISLATIVE DEPARTMENT. 137 

their unlawfulness, after so many had been granted and new 
relations formed, it is highly probable that these enactments would 
have been held to be usurpations of judicial authority, and we 
should have been spared the necessity for tlie special constitu- 
tional provisions which have since been introduced. Fortunately 
these provisions render the question now discussed of little prac- 
tical importance ; at the same time that they refer the 
decision * upon applications for divorce to those tribunals [* 114] 
which must proceed upon inquiry, and cannot condemn 
without a hearing.^ 

The force of a legislative divorce must in any case be confined 
to a dissolution of the relation ; it can only be justified on the 
ground that it merely lays down a rule of conduct for the parties 
to observe towards each other for the future. It cannot inquire 
into the past, with a view to punish the parties for their offences 
against the marriage relation, except so far as the divorce itself 
can be regarded as a punishment. It cannot order the payment of 
alimony, for that would be a judgment ; ^ it cannot adjudge upon 
conflicting claims to property between the parties, but it must leave 
all questions of this character to the courts. Those eights of 
property which depend upon the continued existence of the rela- 
tion will be terminated by the dissolution, but only as in any other 
case rights in the future may be incidentally affected by a change 
in the law.^ 

1 If marriage is a matter of right, so that, under the "rightful powers 

then it would seem that any particu- of legislation" -which our constitu- 

lar marriage that parties might law- tions confer upon the legislative de- 

fully form they must have a lawful partment, a relation essential to 

right to continue in, unless by mis- organized civil society might be ab- 

behavior they subject themselves to rogated entirely. Single legislative 

a forfeiture of the right. And if Ahe divorces are but single steps towards 

legislature can annul the relation in this barbarism which the application 

one case, without any finding that a of the same principle to every indi- 

breaoh of the marriage contract has vidual case, by a general law, would 

been committed, then it would seem necessarily bring upon us. See what 

that they might annul it in every case, is said by the Supreme Court of Mis- 

and even prohibit all parties from Souri in Bryson v. Bryson, 17 Mo. 

entering into the same relation in the 593, 594. 

future. The recognition of a full and ^ Crane v. Meginnis, 1 G. & J. 

complete control of the relation in the 463 ; Potter's Dwarris on Statutes, 

legislature, to be exercised at its will, 486 ; post, p. * 405, note, 
leads inevitably to this conclusion; ' Starr u. Pease, 8 Conn. 545. 



138 



CONSTITUTIONAL LIMITATIONS. 



[CH. V. 



Legislative JSncrocichments upon Executive Power. 

If it is difficult to point out the precise boundary which sep- 
arates 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 determining the means 
through which they shall be executed ; and the perform- 
[* 11.5] ance of * many duties which they may provide for by law, 
they may refer either to the chief executive of the State, 
or, at their option, to any other executive or ministerial officer, or 
even to a person specially named for the dutj'.^ What can be 
definitely said on this subject is this: That such powers as 
are specially conferred by the constitution upon the governor, or 
upon any other specified officer, the legislature cannot require or 
authorize to be performed by any other officer or authority ; and 
from those duties which the constitution requires of him he can- 
not be excused by law.^ But other powers or duties the executive 



1 This IS affirmed in the recent case 
of Bridges u. Shallcross, 6 W. Va. 
562. The constitution ot that State 
provides that the governor shall nomi- 
nate, and by and with the advice and 
consent of the Senate appoint, all 
officers whose offices are established 
by the constitution, or shall be created 
by law, and whose appointment or 
election is not otherwise provided for, 
and that no such officers shall be 
appointed or elected by the legis- 
lature. The court decided that this 
did not preclude the legislature from 
creating a board of public works 
of which the State officers should be 
ex officio the members. And see 
State V. Covington, 29 Ohio, n. s. 
102. 

' Attorney-General v. Brown, 1 
Wis. 522. " Whatever power or duty 
is expressly given to, or imposed 
upon, the executive department, is 
altogether free from the interference 
of the other branches of the govern- 
ment. Especially is this the case 



where the subject is committed to the 
discretion of the chief executive offi- 
cer, either by the constitution or by 
the laws. So long as the power is 
vested in him, it is to be by him 
exercised, and no other branch of the 
government can control its exercise." 
Under the Constitution of Ohio, 
which forbids the exercise of any 
appointing power by the legislature, 
except as therein authorized, it was 
held that the legislature could not, by 
law, constitute certain designated per- 
sons a State board, with power to ap- 
point commissioners of the State House, 
and directors of the penitentiary, and 
to remove such directors for cause. 
State V. Kennon, 7 Ohio, n. s. 546. 
And see Davis v. State, 7 Md. 161 ; 
also Bridges v. Shallcross and State 
V. Covington, referred to in preceding 
note. As to what are public officers, 
see State v. Stanley, 66 N. C. 59; 
8. c. 8 Am. Rep. 488. An appoint- 
ment to office was said, in Taylor v. 
Commonwealth, 3 J. J. Marsh. 404, 



CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 139 



cannot exercise or assume except by legislative authority, and the 
power which in its discretion it confers it may also in its dis- 
cretion 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 be a question.^ It 



to be intrinsically an executive act. 
In a certain sense this is doubtless so, 
but it would not follow that the 
legislature could exercise no appoint-, 
ing power, or could confer none on 
others than the chief executive of the 
State. Where the constitution con- 
tains no negative words to limit the 
legislative authority in this regard, 
the legislature in enacting a law must 
decide for itself what are the suitable, 
convenient, or necessary agencies for 
its execution, and the authority of 
the executive must be limited to tak- 
ing care that the law is executed by 
such agencies. See Baltimore r. 
State, 15 Md. 376. 

Where the governor has power to 
remove an officer for neglect of duty, 
he is the sole judge whether the duty 
has been neglected. State v. Doherty, 
25 La. Ann. 119 ; s. c. 13 Am. Rep. 
131. See, as to discretionary powers, 
ante, p. *41, note. 

The executive, it has been decided, 
has power to pardon for contempt 
of court. State v. Sauvinet, 24 La. 
Ann. 119; s. c. 13 Am. Rep. 115. A 
general power to pardon may be exer- 
cised before as well as after conviction. 
Lapeyre v. United States, 17 Wall. 
191; Dominick v. Bowdoin, 44 Geo. 
457 ; Grubb v. Bullock, 44 Geo. 379. 
The President's power to pardon does 
not extend to the restoration of prop- 
erty which has been judicially for- 
feited. Knote V. United States, (Ct. 
of CI.) 14 Am. Law Reg. n. s. 369; 
Osborn v. United States, 91 U. S. 
Rep. 474. The pardon may be 
granted by general proclamation. 
Carlisle v. United States, 16 Wall. 



147 ; Lapeyre v. United States, 17 
Wall. 191. One receiving a full 
pardon from the President cannot 
afterwards be required by law to 
establish loyalty as a condition to 
the assertion of legal rights. Car- 
lisle V. United States, 16 Wall. 
147. 

1 " In deciding this question [as 
to the authority of the governor], re- 
currence must be had, to the constitu- 
tion. That furnishes the only rule 
by which the court can be governed. 
That is the charter of the governor's 
authority. All the powers delegated 
to him by or in accordance with that 
instrument, he is entitled to exercise, 
and no others. The constitution is a 
limitation upon the powers of the 
legislative department of the govern- 
ment, but it is to be regarded a^ a 
grant of powers to the other depart- 
ments. Neither the executive nor 
the judiciary, therefore, can exercise 
any authority or power except such 
as is clearly granted by the constitu- 
tion." Field V. People, 2 Scam. 80. 

2 Whether the legislature can con- 
stftutionally remit a fine, when the 
pardoning power is vested in the 
governor by the constitution, has 
been made a question ; and the cases 
of Haley v. Clarke, 26 Ala. 439, and 
People V. Bircham, 12 Cal. 50, are 
opposed to each other upon the point. 
If the fine is payable to the State, 
perhaps the legislature should be con- 
sidered as having the same right to 
discharge it that they would have to 
release any other debtor to the State 
from his obligation. In Morgan v. 
Buffington, 21 Mo. 549, it was held 



140 



CONSTITUTIONAL LIMITATIONS, 



[CH. r. 



[* 116] would seem * that this must depend generally upon the 
nature of the power, and upon the question whether the 
constitution, in conferring it, has furnished a sufficient rule for 
its exercise. Where complete power to pardon is conferred upon 
the executive, it may be doubted if the legislature can impose 
restrictions 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 military forces are themselves under the control of the legis- 
lature, and military law is prescribed 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- 



that the State auditor was not 
obliged to accept as conclusive the 
certificate from the Speaker of the 
House as to the sura due a member 
of the House for attendance upon it, 
but that he might lawfully inquire 
whether the amount had been actually 
earned by attendance or not. The 
legislative rule, therefore, cannot go 
to the extent of compelling an execu- 
tive officer to do something else than 
his duty, under any pretence of regu- 
lation. The power to pardon offen- 
ders is vested by the several State 
constitutions in the governor. It is 
not, however, a power which neces- 
sarily inheres in the executive. State 
V. Dunning, 9 Ind. 22. And several 
of the State constitutions have pro- 
vided that it shall be exercised under 
such regulations as shall be prescribed 
by law. There are provisions more 
or less broad to this purport in those 
of Kansas, Florida, Alabama, Ar- 
kansas, Texas, Mississippi, Oregon, 
Indiana, Iowa, and Virginia. In 
State V. Dunning, 9 Ind. 20, an act 
of the legislature requiring the ap- 
plicant for the remission of a fine or 
forfeiture to forward to the governor, 
with his application, the opinion of 



certain county officers as to the pro- 
priety of the remission, was sustained 
as an act within the power conferred 
by the constitution upon the legis- 
lature to prescribe regulations in 
these cases. And see Branham v. 
Lange, 16 Ind. 500. The power to 
reprieve is not included in the power 
to pardon. Ex parte Howard, 17 
N. H. 545. It has been decided that 
to give parties who have been con- 
victed and fined the benefit of the 
insolvent laws is not an exercise of 
the pardoning power. Ex parte Scott, 
19 Ohio, N. s. 581. And where the 
constitution provided that " In all 
criminal and penal cases, except those 
of treason and impeachment, [the 
governor] shall have power to grant 
pardons after convictiod, and remit 
fines and forfeitures," &c., it was 
held that this did not preclude the 
legislature from passing an act of 
pardon and amnesty far parties liable 
to prosecution, but not yet convicted. 
State V. Nichols, 26 Ark. 74; 8. c. 
7 Am. Eep. 600. Pardons may be 
made conditional, and forfeited if the 
condition is not observed. State v. 
Smith, 1 Bailey, 283 ; Lee v. Murphy, 
22 Gratt. 789. 



CH. v.] POWERS EXEKCrSED BY LEGISLATIVE DEPARTMENT. 141 

atives or powers. Those matters which the constitution specifi- 
cally confides to him the legislature cannot directly or indirectly 
take from his control. 

It may be proper to say here, that the executive, in the proper 
discharge of his duties under the constitution, is as independent 
of the courts as he is of the legislatiurc^ 

JDelegating Legislative Power. 

One of the settled maxims in constitutional law is, that the 
power conferred upon the legislature to make laws cannot be 
delegated by that department to any other body or authority. 
Where the sovereign power of the State has located the authority, 
there it must remain ; and by the constitutional agency 
alone * the laws must be made until the constitution [* 117] 
itself is changed. The power to whose judgment, wis- 
dom, and patriotism this high prerogative has been intrusted 
cannot relieve itself of the responsibility by choosing other agen- 
cies upon which the power shall be devolved, nor can it substi- 
tute the judgment, wisdom, and patriotism of any other body 
for those to which alone the people have seen fit to confide this 
sovereign trust.^ 

1 It has been a disputed question 19 111. 229 ; People o. Gates, 40 111. 
•whether the writ of mandamus -will lie 126; State v. Governor, 25 N. J. 331 ; 
to compel the performance of exeou- Mauran v. Smith, 8 R. I. 192; State 
tive duties. In the following cases the v. Warmoth, 22 La. Ann. 1; s. c. 
power has either been expressly af- 2 Am. Rep. 712; Same v. Same, 24 
firmed, or it has been exercised La. Ann. 351; s. c. 13 Am. Rep. 126; 
without being questioned. State v. People v. Governor, 29 Mich. 320; 
Moffitt, 5 Ohio, 358 ; State v. Gov- s. c. 18 Am. Rep. 89 ; State v. Gov- 
ernor, 5 Ohio, N. s. 529; Coltin v. ernor, 39 Mo. 388. 
Ellis, 7 Jones, 545; Chamberlain v. «^ " These are the bounds which 
Sibley, 4 Minn. 309; Magruder v. Gov- the trust that is put in them by the 
ernor, 25 Md* 173 ; Groove v. Gwinn, society, and the law of God and 
43 Md. 572; Tennessee, &c. R. R. nature, have set to the legislative 
Co. V. Moore, 36 Ala. 371 ; Middle- power of every Commonwealth, in all 
ton V. Lowe, 30 Cal. 596; Harpen- forms of government: — 
ding V. Haight, 39 Cal. 189; s. c. 2 " First. They are to govern by 
Am. Rep. 432 ; Chumasero v. Potts, 2 promulgated established laws, not to 
Montana, 242. In the following cases be varied in particular cases, but to 
the power has been denied : Haw- have one rule for rich and poor, for 
kins 1^. Governor, 1 Ark. 570; Low the favorite at court and the coun- 
V. Towns, 8 Geo. 360; State v. .Kirk- tryman at plough, 
wood, 14 Iowa, 162; Dennett, Peti- ''Secondly. These laws also ought 
tioner, 32 Me. 510 ) People v. Bissell, to be designed for no other end 



142 



CONSTITUTIONAL LIMITATIONS. 



[CH. V. 



But it is not always essential that a legislative act should be a 
completed statute which must in any event take effect as law, at 
the time it leaves the hands of the legislative department. A 
statute may be conditional, and its taking effect may be made to 
depend upon some subsequent event.^ Affirmative legislation 
may in some cases be adopted, of which the parties interested 
are at liberty to avail themselves or not at their option. A private 
act of 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 



ultimately but the good of the 
people. 

" Thirdly. They must not raise 
taxes on the property of the people 
without the consent of the people, 
given by themselves or their deputies. 
And this properly concerns only such 
governments where the legislative is 
always in being, or at least where the 
people have not reserved any part of 
the legislative to deputies, to be from 
time to time chosen by themselves. 

" Fourthly. The legislative neither 
must nor can transfer the power of 
making laws to anybody else, or place 
it anywhere but where the people 
have." Locke on Civil Government, 
§ 142. 

That legislative power cannot be 
delegated, see Thome v. Cra.mer, 15 
Barb. 112; Bradley v. Baxter, 15 
Barb. 122 ; Barto v. Himrod, 8 N. Y. 
483; People ». Stout, 23 Barb. 349; 
Rice V. Foster, 4 Harr. 479; Santo v. 
State, 2 Iowa, 165; Geebrick v. State, 
5 Iowa, 491; State v. Beneke, 9 Iowa, 
203; State v. Weir, 33 Iowa, 134; 
8. C. 11 Am. Rep. 115; People v. 
Collins, 3 Mich. 343 ; Railroad Com- 
pany V. Commissioners of Clinton 
County, 1 Ohio, n. s. 77; Parker v. 
Commonwealth, 6 Penn. St. 507; 
Commonwealth ». McVVilliams, 11 
Penn. St. 61; Maize v. State, 4 Ind. 
342; Meshmeier v. State, 11 Ind. 482 ; 
State V. Parker, 26 Vt. 362; State v. 



Swisher, 17 Tex. 441; State ». Cope- 
land, 3 R. I. 33 ; State v. Wilcox, 45 
Mo. 458; Commonwealth v. Locke, 
72 Penn. St. 491 ; Ex parte Wall, 48 
Cal. 279; WiUis v. Owen, 43 Tex. 
41; Farnsworth «. Lisbon, 62 Me. 
451; Brewer v. Brewer, 62 Me. 62; 
State V. Hudson County, 37 N. J. 
12. 

1 Brig Aurora v. United States, 
7 Cranch, 382; Bull v. Read, 13 Grat. 
78; State v. Parker, 26 Vt. 357; 
Peck V. Weddell, 17 Ohio, n. 8. 271; 
State V. Kirkley, 29 Md. 85; Walton 
V. Greenwood, 60 Me. 356 ; Baltimore 
V. Clunet, 23 Md. 449. It is not a 
delegation of legislative power to 
make the repeal of a charter depend 
upon the failure of the corporation to 
make up a deficiency which is to be 
ascertained and determined by a tri- 
bunal provided by the repealing act. 
Lothrop V. Stedman, 42 Conn. 583. 
See Crease v. Babcock, 23 Pick. 334, 
344. Nor to refer the question of ex- 
tending municipal boundaries to a 
court where issues may be formed 
and disputed facts tried. Burlington 
V. Leebrick, 43 Iowa, 252. It is com- 
petent to make an act take effect on 
condition that those applying for it 
shall erect a station at a place named. 
State V. New Haven, &c. Co., 43 
Conn. 351. 

" Angell and Ames on Corp. § 81. 



OH. v.] POWERS EXERCISED BY LEGlSLATrVE DEPARTMENT. 143 

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 is not to 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 of vesting in the municipal or- 
ganizations certain powers of local regulation, in respect to which 
the parties immediately interested may fairly be supposed more 
competent to judge of their needs than any central authority. 
As municipal organizations are mere auxiliaries of the State gov- 
ernment in the important business of municipal rule, the legis- 
lature may create them at will from its own views of propriety 
or necessity, and without consulting the parties interested ; and 
it also possesses the like power to abolish them, without stopping 
to inquire what may be the desire of the corporators on that sub- 
ject.i 

Nevertheless, as the corporators have a special and peculiar 
interest in the terms and conditions of the charter, in the powers 
conferred and liabilities imposed, as well as in the general ques- 
tion whether they shall originally be or afterwards remain incor- 
porated at all or not, and as the burdens of municipal government 
must rest upon their shoulders, and especially as by becoming 
incorporated they are held, in law, to undertake to discharge the 
duties the charter imposes, it seems eminently proper that their 
voice should be heard on the question of their incorporation, and 
that their decision should be conclusive, unless, for strong reasons 
of State policy or local necessity, it should seem important for the 
State to overrule the opinion of the local majority. The right to 
refer any legislation of this character to the people peculiarly 
interested does not seem to be questioned, and the reference is 
by no means unusual.^ 

■1 City of Patterson ». Society, &c., regardless of municipal divisions. Al- 

24 N. J. 385; Cheany v. Hooser, 9 B. com v. Hamer, 38 Miss. 652. And 

Monr. 330; Berlin v. Gorham, 34 N. see, in general, Angell and Ames on 

H. 266. The question of a levee tax Corp.; § 31 and note; also post, pp. 

may lawfully be referred to the voters * 190-* 192. 

of the district of territory over which " Bull v. Read, 13 Grat. 78; Corn- 
it is proposed to spread the tax, ing v. Greene, 28 Barb. 33; Morford 



144 



CONSTITUTIONAL LIMITATIONS. 



[CH. V, 



[* 119] * For the like reasons the question whether a county or ' 
township shall be divided and a new one formed,^ or two 
townships or school districts formerly one be reunited,^ or a city 
charter be revised,* or a county seat located at a particular place, 
or after its location removed elsewhere,* or the municipality con- 
tract particular debts, or engage in a particular improvement,^ is 



0. Unger, 8 Iowa, 82; City of Patter- 
son V. Society, &c., 24 N. J. 385; 
Gorham v. Springfield, 21 Me. 58; 
Commonwealth v. Judges of Quarter 
Sessions, 8 Penn. St. 391; Common- 
wealth V. Painter, 10 Penn. St. 214; 
CalU. Chadboume, 46 Me. 206; State 
V. Scott, 17 Mo. 521; State v. Wilcox, 
45 Mo. 458; Hobart v. Supervisors, 
&c., 17 Cal. 23; Bank of Chenango 
V. Brown, 26 N. Y. 467; Steward v. 
Jefferson, 3 Harr. 335; Burgess v. 
Pue, 2 Gill, 11 ; Lafayette, &c. R. R. 
Co. V. Geiger, 34 Ind. 185. The right 
to refer to the people of several mu- 
nicipalities the question of their con- 
solidation was disputed in Smith v. 
McCarthy, 56 Penn. St. 359, but 
sustained by the court. And see 
Smyth e. Titcomb, 31 Me. 272 ; Erlin- 
ger o. Boneau, 51 111. 94 ; Lammert v. 
Lidwell, 62 Mo. 188; State v. Wilcox, 
45 Mo. 458; Brunswick v. Finney, 54 
Geo. 317 ; Response to House Reso- 
lution, 55 Mo. 295. 

1 State e. Reynolds, 5 Gilm. 1. 
See State <;. McNiell, 24 Wis. 149. 
Response to House Resolution, 55 
Mo. 295. For other cases on the same 
general subject, see People ». Nally, 
49 Cal. 478; Pike County v. Barnes, 51 
Miss. 305; Brunswick v. Finney, 54 
Geo. 317. The question whether a 
general school law shall be accepted in 
a particular municipality may be re- 
ferred to its voters. State v. Wilcox, 

45 Mo. 458. 

2 Commonwealth v. Judges, &c., 
8 Penn. St. 391; Call v. Chadboume, 

46 Me. 206; People v. Nally, 49 Cal. 
478; Erliuger ». Boneau, 51 111. 94. 

* Brunswick v. Finney, 54 Geo. 317. 

* Commonwealth v. Painter, 10 



Penn. St. 214. See People e. Salo- 
mon, 51 111. 37 ; Slinger v. Henneman, 
38 Wis. 504; post, pp. * 124-* 125. 

' There are many cases in which 
municipal subscriptions to works of 
internal improvement, under statutes 
empowering them to be made, have 
been sustained ; among others, Goddin 
V. Crump, 8 Leigh, 120 ; Bridgeport 
V. Housatonic Railroad Co., 15 Conn. 
475; Starinw. Genoa, 29 Barb. 442, 
and 23 N. Y. 439; Bank of Rome 
V. Village of Rome, 18 N. Y. 38; 
Prettyman ». Supervisors, &c., 19 111. 
406; Robertson v. Rockford, 21 111. 
451 ; Johnson v. Stack, 24 111. 75; 
Bushnell v. Beloit, 10 Wis. 195; Clark 
V. Janesville, 10 Wis. 136; Stein 
V. Mobile, 24 Ala. 591; Mayor of 
Wetumpka v. Winter, 29 Ala. 651; 
Pattison v. Yuba, 13 Cal. 175; Bland- 
ing V. Burr, 13 Cal. 343; Hobart v. 
Supervisors, &c., 17 Cal. 23; Taylor 
V. Newberne, 2 Jones Eq. 141; Cald- 
well V. Justices of Burke, 4 Jones Eq. 
323; Louisville, &c. Railroad Co. v. 
Davidson, 1 Sneed, 637; Nichol »., 
Mayor of Nashville, 9 Humph. 252 ; 
Railroad Co. v. Commissioners of 
Clinton Co., 1 Ohio, s. a. 77; Trus- 
tees of Paris v. Cherry, 8 Ohio, n. s. 
564; Cass v. Dillon, 2 Ohio, n. s. 
607; State v. Commissioners of Clin- 
ton Co., 6 Ohio, N. s. 280; State v. 
Van Home, 7 Ohio, n. s. 327; State 
V. Trustees of Union, 8 Ohio, n. s. 
394; Tmstees, &c. v. Shoemaker, 12 
Ohio,N. 8. 624; State y. Commissioners 
of Hancock, 12 Ohio, n. s. 596; Powers 
V. Dougherty Co., 23 Geo. 65; San 
Antonio v. Jones, 28 Texas, 19; 
Commonwealth v. Mc Williams, 11 
Penn. St. 61; Sharpless v. Mayor, &o. 



CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 145 

always a question which may with propriety be referred to the 
voters of the municipality for decision. 

The question then arises, whether that which may be 
done in * reference to any municipal organization within [* 120] 
the State may not also be done in reference to the State 
at large ? May not any law framed for the State at large be made 
conditional on an acceptance by the people at large, declared 
through the ballot-box ? If it is not unconstitutional to delegate 
to a single locality the power to decide whether it will be governed 
by a particular charter, must it not quite as clearly be within the 
power of the legislature to refer to the people at large, from whom 
all power is derived, the decision upon any proposed statute affect- 
ing the whole State ? And can that be called a delegation of power 
which consists only in the agent or trustee referring back to the 
principal the final decision in a case where the principal is the 
party concerned, and where perhaps there are questions of policy 
and propriety involved which no authority can decide so satis- 
factorily and so conclusively as the principal to whom they are 
referred ? 

If the decision of these questions is to depend upon the weight 
of judicial authority up to the present time, it must be held that 
there is no power to refer the adoption or rejection of a general 
law to the people of the State, any more than there is to refer it to 
any other authority. The prevailing doctrine in the courts appears 
to be, that, except in those cases where, by the constitution, the 

21 Penn. St. 147 ; Moers v. Reading, v. Buchanan Co. Court, 39 Mo. 485 ; 

21 Penn. St. 188 ; Talbot v. Dent, 9 State ». Linn Co. Court, 44 Mo. 504 ; 

B. Monr. 526; Slacks). Railroad Co., Stewart w. Supervisors of Polk Co., 

13 B. Monr. 1; City of St. Louis v. 30 Iowa, 9; John v. C. R.. & F. W. 

Alexander, 23 Mo. 483; City of R. R. Co., 35 Ind. 539; Leavenworth 

Aurora v. West, 9 Ind. 74 ; Cotton County v. Miller, 7 Kan. 479 ; Walker 

V. Commissioners of Leon, 6 Fla. v. Cincinnati, 21 Ohio, n. s. 14; Ex 

610; Copes v. Charieston, 10 Rich, parte Selma, &c. R. R. Co., 45 Ala. 

491; Commissioners of Knox County 696; S. & "V. R. R. Co. v. Stockton, 

». Aspinwall, 21 How. 539, and 24 41 Cal. 149. In several of them the 

Hqw. 326 ; Same v. Wallace, 21 How. power to authorize the municipalities 

*647; Zabriske v. Railroad Co., 23 to decide upon such subscriptions has 

How. 381; Amey v. Mayor, i&c., 24 been contested as a delegation of 

How. 365; Gelpecke v. Dubuque, 1 legislative authority, but the courts — 

Wall. 175; Thompson v. Lee County, even those which hold the subscriptions 

3 Wall. 327; Rogers v. Burlington, void on other grounds — do not look 

3 Wall. 654; Gibbons v. Mobile & upon these cases as being obnoxious 

Great Northern Railroad Co., 36 Ala. to the constitutional principle referred 

410; St. Joseph, &c. Railroad Co. to in the text. 

10 



146 CONSTITUTIONAL LIMITATIONS. [CH. V. 

people have expressly reserved to themselves a power of decision, 
the function of legislation cannot be exercised by them, even to the 
extent of accepting or rejecting a law which has been framed for 
their consideration. " The exercise of this power by the people in 
other cases is not expressly and in terms prohibited by the constitu- 
tion, but it is forbidden by necessary and unavoidable implication. 
The Senate and Assembly are the only bodies of men clothed with 
the power of general legislation. They possess the entire power, 
with the exception above stated. The people reserved no part of 
it to themselves [with that exception] , and can therefore exercise 
it in no other case." It is therefore held that the legislature have 
no power to submit a proposed law to the people, nor have the 
people power to bind each other by acting upon it. They 
voluntarily surrendered that power when they adopted the 
constitution. The government of the State is democratic, but 
it is a representative democracy, and in passing general laws 
the people act only through their representatives in the legis- 
lature.^ 
[*121] *Nor, it seems, can such legislation be sustained as 
legislation of a conditional character, whose force is to 
depend upon the happening of some future event, or upon some 
future change of circumstances. " The event or change of circum- 
stances on which a law may be made to take effect must be such 
as, in the judgment of the legislature, affects the question of the 

1 Per Buggies, Ch. J. , in Barto v. many other cases. The representative 
Himrod, 8 N. Y. 489. It is worthy in these cases has fulfilled precisely 
of consideration, however, whether those functions which the people as a 
there is any thing in the reference democracy could not fulfil; and where 
of a statute to the people for accept- the case has reached a stage when the 
ance or rejection which is inconsistent body of the people can act without 
with the representative system of confusion, the representative has 
government. To refer it to the peo- stepped aside to allow their opinion 
pie to frame and agree upon a statute to be expressed. The legislature is 
for themselves would be equally im- not attempting in such a case to dele- 
practicable and inconsistent with the gate its authority to a new agency, 
representative system; but to take tl^e but the trustee, vested with a large 
opinion of the people upon a bill discretionary authority, is taking the 
already framed by representatives opinion of the principal upon the neces- 
and submitted to them, is not only sity, policy, or propriety of an act 
practicable, but is in precise accord- which is to govern the principal him- 
ance with the mode in which the con- self. See Smith v. Janesville, 26 Wis. 
stitution of the State is adopted, and 291; Fell b. State, 42 Md. 71; s. c. 
with the action which is taken in 20 Am. Rep. 83. 



CH. v.] POWERS EXEKCISED BY LEGISLATIVE DEPARTMENT. 14T 

expediency of the law ; an event on which the expediency of the 
law in the opinion of the law-makers depends. On this question 
of expediency, the legislature must exercise its own judgment 
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 happen. They appeal to no other man or men to judge 
for them in relation to its present or future expediency. They 
exercise that power themselves, and then perform the duty which 
the constitution imposes upon them." But it was held that in the 
case of the submission of a proposed free-school law to the people, 
no such event or change of circumstances affecting the expediency 
of the law was expeeted 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 afterwards. The event on which 
the act was to take effect was nothing else than the vote of the 
people on the identical question which the constitution makes 
it the duty of the legislature itself to decide. The legislature 
has no power to make a statute dependent on such a 
* contingency, because it would be confiding to others [*122] 
that legislative discretion which they are bound to exer- 
cise themselves, and which they cannot delegate or commit to 
any other man or men to be exercised.^ 

1 Per Ruggles, Ch. J., in Barto v. not opposed to sound policy, and so 
Himrod, 8 N. Y. 490. And see far connected -with the object and 
Santo V. State, 2 Iowa, 165; State purpose of the statute as not to be 
V. Beneke, 9 Iowa, 203; State v. a mere idle and arbitrary one. And. 
Swisher, 17 Tex. 441 ; State v. Field, to us the contingency, upon which the 
17 Mo. 529: Bank of Chenango ». present statute was to be suspended 
Brown, 26 N. Y. 470; People v. until another legislature should meet. 
Stout, 23 Barb. 349 ; State v. Wilcox, and have opportunity of reconsidering 
45 Mo. 458; Ex parte Wall, 48 Cal. it, was not only proper and legal, and. 
279, 313; Brown v. Fleischner, 4 just and moral, but highly commend- 
Oreg. 132. But upon this point able and creditable to the legislature- 
there is great force in what is said by who passed the statute; for at the 
Redfield, Ch. J., in State v. Parker, very threshold of inquiry into the- 
26 Vt. 357: "If the operation of a expediency of such a law lies the- 
law may fairly be made to depend other and more important inquiry, 
upon a future contingency, then, in Are the people prepared for such a. 
my apprehension, it makes no essen- law? Cam it be successfully enforced ? 
tial difference what is the nature of These questions being answered in. 
the- contingency, so it be an equal the aflSrmative, he must be a bold', 
and fair one, a moral and legal one, man who would even vote against the- 



148 



CONSTITUTIONAL LIMITATIONS. 



[GH. V. 



[* 123] * The sai&e reasons which preclude the original enact- 
ment of a law from being referred to the people would 



law; and something more must he be 
■who ■would, after it had been passed 
■with that assurance, be ■willing to em- 
barrass its operation or rejoice at its 
defeat. 

" After a full examination of the 
arguments by -which it is attempted 
to be sustained that statutes made 
dependent upon such contingencies 
are not valid laws, and a good deal 
of study and reflection, I must declare 
that I am fully convinced — although 
at first, -without much examination, 
somewhat inclined to the same opin- 
ion — that the opinion is the result of 
false analogies, and so founded upon 
a latent fallacy. It seems to me that 
the distinction attempted between the 
contingency of a popular vote and 
other future contingencies is without 
all just foundation in sound policy or 
sound reasoning, and that it has too 
often been made more from necessity 
than choice, — rather to escape from 
an overwhelming analogy than from 
any ob^vdous difference in principle in 
the two classes of cases ; for . . . one 
imay find any number of cases in the 
legislation of Congress, where statutes 
have been made dependent upon the 
shifting character of the revenue laws, 
or the navigation laws, or commercial 
rules, edicts, or restrictions of other 
countries. In some, perhaps, these 
laws are made by representative 
bodies, or, it may be, by the people 
of these States, and in others by the 
lords of the treasury, or the boards 
of trade, or by the proclamation of 
.the sovereign; and in all these oases 
.no question can be made of the per- 
,fect legality of our acts of Congress 
being made dependent upon such con- 
ttingencies. It is, in fact, the only 
possible mode of meeting them, un- 
Jess Congress is kept constantly in 
session. The same is true of acts of 
'Congress by which power is vested in 



the President to levy troops or draw 
money from the pubhe treasury, upon 
the contingency of a declaration or an 
act of war committed by some foreign 
state, empire, kingdom, prince, or 
potentate. If these illustrations are 
not sufficient to show the fallacy of 
the argument, more would not avail." 
See also State v. Noyes, 10 Fost. 292 ; 
Bull e. Read, ISGrat. 78; Johnson 
V. Rich, 9 Barb. 680; State v. Rey- 
nolds, 5 Gilm. 1; Robinson v. Bid- 
well, 22 Cal. 349. In the recent case 
of Smith ».'janesville, 26 Wis. 291, 
Chief Justice Dixon discusses this 
subject in the following language : 
" But it is said that the act is void, 
or at least so much of it as pertains 
to the taxation of shares in national 
banks, because it was submitted to a 
vote of the people, or provided that it 
should take effect only after approval 
by a majority of the electors voting 
on the subject at the next general 
election. This was no more than pro- 
viding that the act should take effect 
on the happening of a certain future 
contingency, that contingency being 
a popular vote in its favor. No one 
doubts the general power of the legis- 
lature to make such regulations and 
conditions as it pleases with regard to 
the taking effect or operation of laws. 
They may be absolute, or conditional 
and contingent; audit the latter, they 
may take effect on the happening of 
any event which is future and un- 
certain. Instances of this kind of 
legislation are not unfrequent. The 
law of Congress suspending the writ 
of habeas corpus during the late re- 
bellion is one, and several others are 
referred to in the case In re Richard 
Oliver, 17 Wis. 681. It being con- 
ceded that the legislature possesses 
this general power, the only question 
here would seem to be, whether a vote 
of the people in favor of a law is to 



CH. V.J POWERS BXEKCISED BY LEGISLATIVE DEPABTMBNT. 149 



render it equally incompetent to refer to their decision 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 
act 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 
the latter contingency.^ It would also seem that if the question 
of the acceptance or rejection of a municipal charter can be 
referred to the voters of the locality specially interested, it would 
be equally competent to refer to them the question whether a 
State law establishing a particular police regulation should be of 
force in such locality or not. Municipal charters refer most 



be excluded from the number of those 
future contingent events upon ■which 
it may be provided that it shall take 
effect. A similar question was before 
this" court in a late case (State ex rel. 
Attorney-General v. O'Neill, Mayor, 
&c., 24 Wis. 149), and was very elab- 
orately discussed. We came unani- 
mously to the conclusion in that case 
that a provision for a vote of the 
electors of the city of Milwaukee in 
favor of an act of the legislature, be- 
fore it should take effect, was a lawful 
contingency, and that the act was 
valid. That was a law affecting the 
people of Milwaukee particularly, 
while this was one affecting the peo- 
ple of the whole State. There the 
law was submitted to the voters of 
that city, and here it was submitted 
to those of the State at large. What 
is the difference between the two 
cases? It is manifest, on principle, 
that there cannot be any. The whole 
reasoning of that case goes to show 
that this act must be valid, and so it 
has been held in the best-considered 
cases, as will be seen by reference to 
that opinion. We are constrained to 
hold, therefore, that this act is and 
was in all respects valid from the time 
it took effect, in November, 1866; and 
consequently that there was no want 



of authority for the levy and collec- 
tion of the taxes in question." This 
decision, though opposed to many 
others, appears to us entirely sound 
and reasonable. 

^ Geebrick v. State, 5 Iowa, 491 ; 
Rice e. Foster, 4 Harr. 492 ; Parker 
». Commonwealth, 6 Penn. St. 507. 
The case in 5 Iowa was followed in 
State V. Weir, 33 Iowa, 134; s. c. 
11 Am. Rep. 115. 

2 State ». Parker, 26 Vt. 357. 
The act under consideration in that 
case was, by its terms, to take effect 
on the second Tuesday of March 
after its passage, unless the people to 
whose votes it was submitted, should 
declare against it, in which case it 
should take effect ' in the following 
December. The case was distin- 
guished from Barto v. Himrod, 8 N. 
Y. 483, and the act sustained. At 
the same time the court express their 
dissent from the reasoning upon 
which the New York case rests. In 
People ». Collins, 3 Mich. 343, the 
court was equally divided in a case 
similar to that in Vermont, except 
that in the Michigan case the law 
which was passed and submitted to 
the people in 1853 was not to go into 
effect until 1870, if the vote of the 
people was against it. 



150 CONSTITUTIONAL LIMITATIONS. [CH. V. 

questions of local government, including police regulations, to the 
local authorities ; on the supposition that they are better able to 
decide for themselves upon the needs, as well as the sentiments, of 
their constituents, than the legislature possibly can be, and are 
therefore more competent to judge what local regulations are 
important, and also how far the local sentiment will assist in their 
enforcement. The same reasons would apply in favor of permit- 
ting the people of the locality to accept or reject for themselves a 
particular police regulation, since this is only allowing them less 
extensive powers of local government than a municipal charter 

would confer ; and the fact that the rule of law on that sub- 
[* 124] ject might be different in different * localities, according as 

the people accepted or rejected the regulation, would not 
seem to affect the principle, when the same result is brought about 
by the different regulations which municipal corporations establish 
for themselves in the exercise of an undisputed authority.^ It 
is not to be denied, however, that there is considerable 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- 

1 In New Hampshire an act was billiard-rooms, bowling-alleys, and 
passed declaring bowling-alleys, sit- other places of gambling, they may 
uate within twenty-five rods of a surely pass laws to punish the same 
dwelling-house, nuisances, but the acts, subject to be adopted by the 
statute was to be in force only in town before they can be of force in 
those towns in which it should be it." And it seems to us difficult to 
adopted in town meeting. In State answer this reasoning, if it be con- 
». Noyes, 10 Fost. 293, this act was fined to such laws as fall within the 
held to be constitutional. " Assum- proper province of local government, 
ing," say the court, "that the legis- and which are therefore usually re- 
lature has the right to confer the ferred to the judgment of the munid- 
power of local regulation upon cities pal authorities or their constituency, 
and towns, that is, the power to pass A similar question arose in Smith v. 
ordinances and by-laws, in such terms Village of Adrian, 1 Mich. 495, but 
andwithsuohprovisions, in the classes was not decided. In Bank of Che- 
of cases to which the power extends, nango v. Brown, 26 N. Y. 467, it was 
as they may think proper, it seems to held competent to authorize the elec- 
us hardly possible seriously to con- tors of an incorporated village to de- 
tend that the legislature may not con- termine for themselves what sections 
fer the power to adopt within such of the general act for the incorpora- 
municipality a law drawn up and tion of villages should apply to their 
framed by themselves. If they may village. See, further, People v. Salo- 
pass a law authorizing towns to make mou, 51 111. 37 ; Burgess v. Pue, 2 Gill, 
ordinances to punish the keeping of 11; Hammond e. Haines, 25 Md. 541. 



CH. T.J POWERS EXEKCISED BY LEGISLATIVE DEPARTMENT. 151 

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 liquors within such county ; but if the majority should be cast 
in favor of license, then licenses might be granted in the county 
so voting, in the manner and under the regulations in said act 
prescribed. The Court of Errors and Appeals of that State held 
this act void, as an attempted delegation of the trust to make laws, 
and upon the same reasons which support the cases before cited, 
where acts have been held void which referred to the people of the 
State for approval a law of general application.^ The same de- 
cision was made near the same time by the Supreme 
* Court of Pennsylvania,^ followed afterwards iu an elabo- [* 125] 
rate opinion by the Supreme Court of lowa.^ But the 
case in Pennsylvania has since been overruled.* 

By statute in Indiana it was enacted that no person should retail 
spirituous liquors, except for sacramental, mechanical, chemical, 
medicinal, or culinary purposes, without the consent of the 
majority of the legal voters of the proper township who might 
cast their votes for license at the April election, nor without filing 
with the county auditor a bond as therein provided ; upon the fil- 
ing of which the auditor was to issue to the person filing the same 
a license to retail spirituous liquors, which was to be good for one 
year from the day of the election. This act was held void upon 
similar reasons to those above quoted.^ This case follows the 
previous decisions in Pennsylvania and Delaware,^ and it has since 

' Rice V. Foster, 4 Harr. 479. ^ Parker v. Commonwealth, 6 

Compare this with the recent case of Penn. St. 507. 

Commonwealth v. Bennett, 108 Mass. ^ Geebrick v. State, 5 Iowa, 495. 

27, which is contra, and which is Spe State u. Wier, 33 Iowa, 134 ; s. c. 

placed updn what seems to us the 11 Am. Rep. 115. 
impregnable grounds, that " the sub- * Locke's Appeal, 72 Penn. St. 

ject, although not embraced within 491 ; s. c. 13 Am. Rep. 716. 
the ordinary power to make by-laws * Maize v. State, 4 Ind. 342. 

and ordinances, falls within the class Compare Groesch v. State, 42 Ind. 

of police regulations which may be 547, 558. 

intrusted by the legislature by express « Parker v. Commonwealth, 6 

enactment to municipal authority." Penn. St. 507; Rice i>. Foster, 4 Harr. 

See also Bancroft v. Dumas, 21 Vt. 479. See also State v. Field, 17 Mo. 

456. A local option law concerning 529; Commonwealth v. Mc Williams, 

the running at large of beasts has 11 Penn. St. 61; State v. Copeland, 

recently been held unconstitutional in 3 R. I. 33 ; Ex parte Wall, 48 Cal. 

Missouri. Lammert v. Lidwell, 62 279. 
Mo. 188. 



152 CONSTITUTIONAL LIMITATIONS. [CH. vl 

been followed by another decision of the Supreme Court of that 
State, except that while in the first case only that portion of the 
statute which provided for submission to the people was held 
void, in the later case that unconstitutional provision was held 
to affect the whole statute with infirmity, and render the whole 
invalid.^ But we think that at this time the clear weight of 
authority is in support of legislation of this nature commonly 
known as local option laws.^ 



IrrepealaMe Laws. 

Similar reasons to those which forbid the legislative department 
of the State from delegating its authority will also forbid its pass- 
ing any irrepealable law. The constitution, in conferring the leg- 
islative 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 suc- 
cessors ; 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 
[* 126] * legislative power shall be vested in two houses, would 

be to a greater or less degree rendered ineffectual.^ 

^ Meshmeier v. State, 11 Ind. 484. fact or state of things upon which 

" Supporting such laws in addition the law makes or intends to make its 

to cases already cited are State v. own action depend. To deny that 

Morris County, 36 N. J. 72 ; s. c. would be to stop the wheels of gov- 

13 Am. Rep. 422; State v. Wilcox, emment." And see Slinger ». Henne- 

42 Conn. 364 ; s. c. 19 Am. Rep. 536 ; man, 38 Wis. 504; Erlinger «. Boneau, 

Fell V. State, 42 Md. 71 ; s. c. 20 51 111. 94. 

Am. Rep. 83; Commonwealth v. '" Unlike the decision of a court, 
Bennett, 108 Mass. 27 ; Common- a legislative act does not bind a sub- 
wealth V. Dean, 110 Mass. 857 ; Com- sequent legislature. Each body pos- 
monwealth v. Fredericks, 119 Mass. sesses the same power, and has a 
199; Groesch v. State, 42 Ind. 547. right to exercise the same discretion. 
In Locke's Appeal, supra, it is said, Measures, though often rejected, may 
after an admission that the legislature receive legislative sanction. There is 
cannot delegate the power to make no mode by which a legislative act 
laws, " but it can make a law to dele- can be made irrepealable, except it 
gate the power to determine some assume the form and substance of a 



CH. v.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 153 

" Acts of Parliament," says Blackstone, " derogatory to 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 prosecutions for 
high treason, but it will not restrain or clog any parliamentary 
attainder. Because the legislature, being in truth the sovereign 
power, is always of equal, and always of absolute authority ; it 
acknowledges no superior upon earth, which the prior legislature 
must have been if its ordinances could bind a subsequent Par- 
liament. And upon the same principle, Cicero, in his letters to 
Atticus, treats with a proper* contempt those restraining clauses 
which endeavor 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 
is the same. There is a modification of the principle, however, by 
an important provision of the Constitution of the United States, 
forbidding the States passing any laws impairing the obliga- 
tion of contracts. Legislative acts are sometimes in substance 
contracts between the State and the party who is to derive some 
right under them, and they are not the less under the protection 
of the clause quoted because of having assumed this form. Char- 
ters of incorporation, except those of a municipal character, — 
and which, as we have already seen, create mere agencies 
of government, — * are held to be contracts between the [* 127] 
State and the corporators, aiid not subject to modification 
or change by the act of the State alone, except as may be author- 
ized by the terms of the charters themselves.^ And it now seems 

contract. If in any line of legislation Bloomer ». StoUey, 5 McLean, 161. 

a permanent character could be given See this subject considered in Wall v. 

to acts, the most injurious conse- State, 23 Ind. 150, and State v. Qs- 

quences would result to the country, kins, 28 Ind. 364 ; Oleson v. Green 

Its policy would become fixed and Bay, &c. R. R. Co., 36 Wis. 383. 

unchangeable on great national inter- In Kellogg v. Oshkosh, 14 Wis. 623, 

ests, which might retard, if not de- it was held that one legislature could 

stroy, the public prosperity. Every not bind a future one to a particular 

legislative body, unless restricted by mode of appeal, 

the constitution, may modify or ^ 1 Bl. Com. 90. 

abolish the acts of its predecessors ; ^ Dartmouth College ». Woodward, 

whether it would be wise to do so, 4 Wheat. 518; Planters' Bank v. 

is a matter for legislative discretion." Sharp, 6 How. 301. 



154 



CONSTITUTIONAL LIMITATIONS. 



[CH. V. 



to be settled, by the decisions of the Supreme Court of the United 
States, that a State, by contract to that effect, based upon a con- 
sideration, may exempt the property of an individual or corpora- 
tion 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 cor- 
porators, the exemption is presumed to be upon sufficient con- 
sideration, and consequently binding upon the State.^ 



Territorial Limitation to State Legislative Authority. 

The legislative authority of every State must spend its 

[* 128] force * within the territorial limits of the State. The 

legislature of one State cannot make laws by which people 



1 Gordon v. Appeal Tax Court, 
3 How. 133 ; New Jersey v. Wilson, 
7 Cranch, 164 ; Piqua Branch Bank 
V. Knoop, 16 How. 369; Ohio Life 
Ins. and Trust Co. v. Debolt, 16 How. 
416, 432; Dodge v. Woolsey, 18 How. 
331 ; Mechanics' and Traders' Bank 
e. Debolt, 18 How. 381; Jefferson 
Branch Bank ». Skelly, 1 Black, 486 ; 
Erie K. R. Co. ». Pennsylvania, 21 
Wall. 492. See also Hunsaker «. 
Wright, 30 111. 146 ; Morgan v. Cree, 
46 Vt. 773 ; Spooner v. McConnell, 1 
McLean, 347 ; post, p. *280. The right 
of a State legislature to grant away 
the right of taxation, which is one of 
the essential attributes of sovereignty, 
has been strenuously denied. See 
Debolt r. Ohio Life Ins. and Trust 
Co., 1 Ohio, N. 8. 563: Mechanics' 
and Traders' Bank v. Debolt, 1 Ohio, 
N. s. 591 ; Brewster ». Hough, 10 N. H. 
143 ; Mott V. Pennsylvania Railroad 
Co., SOPenn. St. 9. And see Thorpe 
V. Rutland and B. Railroad Co., 27 Vt. 
146 ; post, p. *280 and note. In Brick 
Presbyterian Church v. Mayor, &c. 
of New York, 5 Cow. 538, it was held 
that a municipal corporation had no 
power, as a party, to make a contract 



which should control or embarrass its 
discharge of legislative duties. And 
see post, p. *206. In Coats v. Mayor, 
&c. of New York, 7 Cow. 585, it was 
decided that though a municipal cor- 
poration grant lands for cemetery 
purposes, and covenant for their 
quiet enjoyment, it will not thereby 
be estopped afterwards to forbid the 
use of the land by. by-law, for that 
purpose, when such use becomes or is 
likely to become a nuisance. See 
also, on the same subject, Morgan :>. 
Smith, 4 Minn. 104; Eincaid's Ap- 
peal, 66 Penn. St. 411 ; s. c. 5 Am. 
Rep. 377; Hamrick v. Rouse, 17 Geo. 
56, where it was held that the legis- 
lature could not bind its successors 
not to remove a county seat ; Bass o. 
Fontleroy, 11 Tex. 698; Shaw v. 
Macon, 21 Geo. 280; Regents of 
University v. Williams, 9 G. & J. 
390 ; Mott V. Pennsylvania Railroad 
Co., 30 Penn, St. 9. In Bank of 
Republic ». Hamilton, 21 111. 53, it 
was held that, in construing a statute, 
it will not be intended that the legis- 
lature designed to abandon its right 
as to taxation. This subject is con- 
sidered further, post, pp. *280-*284. 



CH. v.] POWEKS EXBKCISED BY LEGISLATIVE DEPARTMENT. 155 

outside the State must govern their actions, except as they may 
have occasion to resort to the remedies which the State provides, 
or to deal with property situated within the State. It can have no 
authority upon the high seas beyond 'State lines, because there is 
the point of contact with other nations, and all international ques- 
tions belong to the national government.^ It cannot provide for 
the punishment as crimes of acts committed beyond the State 
boundary, because such acts, if offences at all, must be offences 
against the sovereignty within whose limits they have been done.^ 
But if the consequences of an unlawful act committed outside 
the State have reached their ultimate and injurious result within 
it, it seems that the perpetrator may be punished as an offender 
against such State.^, 



Other Limitations of Legislative Authority, 

Besides the limitations of legislative authority to which we 
have referred, others exist which do not seem to call for 
special remark. Some of these are prescribed by constitutions,* 



1 1 Bish. Cr. Law, § 120. 

2 State ». Knight, 2 Hayw. 109; 
People V. Merrill, 2 Park. Cr. R. 590 ; 
Adams ». People, 1 N. Y. 173 ; Tyler 
V. People, 8 Mich. 320 ; Morrissey v. 
People, 11 Mich. 327; Bromley v. 
People, 7 Mich. 472 ; State v. Main, 
16 Wis. 898 ; Watson's Case, 36 Miss. 

« In Tyler «. People, 8 Mich. 320, 
it was held constitutional to punish in 
Michigan a homicide committed by a 
mortal blow in Canadian waters, from 
which death resulted in the State. 
In Morrissey v. People, 11 Mich. 327, 
the court was divided on the question 
whether the State could lawfully 
provide for the punishment of per- 
sons who, having committed larceny 
abroad, brought the stolen property 
within the State. The power was 
sustained in People v. WiUiams, 24 
Mich. 156, where the larceny was in 
another State. And see State v. 
Main, 16 Wis. 398 ; Regina v. Hen- 
nessy, 35 Upper Canada R. 603. 



* The restrictions upon State leg- 
islative authority are much more ex- 
tensive in some constitutions than in 
others. The Constitution of Missouri 
of 1865 had the following provision: 
" The General Assembly shall not 
pass special laws divorcing any named 
parties, or declaring any named per- 
son of age, or authorizing any named 
minor to sell, lease, or encumber his 
or her property, or providing for the 
sale of the real estate of any named 
minor or other person laboring under 
legal disability, by any executor, ad- 
ministrator, guardian, trustee, or other 
person, or establishing, locating, alter- 
ing the course, or effecting the con- 
struction of roads, or the building or 
repairing of bridges, or establishing, 
altering, or vacating any street, ave- 
nue, or alley in any city or town, or 
extending the time for the assessment 
or collection of taxes, or otherwise 
relieving any assessor or collector of 
taxes from the due performance of his 
official duties, or giving effect to in- 



156 



COKSTITTJTIONAL LIMITATIONS. 



[CH. V. 



[* 129] but* others spring from the very nature of free govern- 
ment. The latter must depend for their enforcement upon 
legislative wisdom, discretion, and conscience.^ The legislature 
is to make laws for the public good, and not for the benefit of 



formal or invalid ■wills or deeds, or 
legalizing, except as against the State, 
the unauthorized or invalid acts of 
any oflBicer, or granting to any indi- 
vidual or company the right to lay 
down railroad tracks in the streets of 
any city or town, or exempting any 
property of any named person or cor- 
poration from taxation. The General 
Assembly shall pass no special law for 
any case for which provision can be 
made by a general law, but shall pass 
general laws providing, so far as it 
may deem necessary, for the cases 
enumerated in this section, and for all 
other cases where a general law can 
be made applicable." Art. 4, § 27. 
We should suppose that so stringent 
a provision would, in some of these 
cases, lead to the passage of general 
laws of doubtful utility in order to 
remedy the hardships of particular 
cases; but the constitution adopted 
in 1875 is stiU more restrictive. Art. 
4, § 53. As to when a general law 
can be made applicable, see Thomas 
V. Board of Commissioners, 5 Ind. 4 ; 
State V. Squires, 26 Iowa, 340 ; John- 
son V. Railroad Co., 23 111. 202. In 
State V. Hitchcock, 1 Kan. 178, it 
was held that the constitutional pro- 
vision, that "in all cases where a 
general law can be made applicable, 
no special law shall be enacted," left 
a discretion with the legislature to 
determine the cases in which special 
laws should be passed. See to the 
same effect Gentile v. State, 29 Ind. 
409, and Marks v. Trustees of Pardue 
University, 37 Ind. 163; State ». 
Tucker, 46 Ind. 355, overruling 
Thomas v. Board of Commissioners, 
supra. To the same effect is State v. 
County Court of Boone, 50 Mo. 317 ; 
s. c. 11 Am. Rep. 415; State ». 
Bobbins, 61 Mo. 82; Hall v. Bray, 



51 Mo. 288 ; St. Louis v. Shields, 62 
Mo. 247. Compare Hess v. Pegg, 
7 Nev. 23; Darling o. Rogers, 7 Kan. 
592 ; Ex parte Pritz, 9 Iowa, 30. 
Where the legislature is forbidden to 
pass special or local laws regulating 
county or township business, a special 
act allowing and ordering payment of 
a particular claim is void, even though 
the claim, being merely an equitable 
one, cannot be audited by any existing 
board. Williams v. Bidleman, 7 Nev. 
68. See Darling v. Rogers, 7 Kan. 
592. An act creating a criminal 
court for a particular county is not in 
conflict with the constitutional pro- 
hibition of special legislation. Eitel 
V. State, 33 Ind. 201. See Matter of 
Boyle, 9 Wis. 264. A constitutional 
provision that requires all laws of a 
general nature to have uniform oper- 
ation throughout the State is com- 
plied with in a statute applicable to 
all cities of a certain class having less 
than one hundred thousand inhabi- 
tants, though in fact there be but one 
city in the State of that class. Welker 
V. Potter, 18 Ohio, n. s. 85. See 
further, Bourland v. Hildreth, 26 Cal. 
162; Brooks v. Hyde, 37 Cal. 366; 
McAurich v. Mississippi, &c. R. R. 
Co., 20 Iowa, 338; Rice v. State, 
3 Kan. 141; Jackson v. Shawl, 29 
Cal. 267; Gentile v. State, 29 Ind. 
409; State ». Parkinson, 5 Nev. 15; 
Ensworth v. Albin, 46 Mo. 450; 
People V. Wallace, 70 111. 680. So 
where the legislature, for urgent rea- 
sons, may suspend the rules and allow 
a bin to be read twice on the same 
day, what constitutes a case of ur- 
gency is a question for the legislative 
discretion. Hull v. Miller, 4 Neb. 503. 
1 Walker v. Cincinnati, 21 Ohio, 
N. 8. 14, 41. 



CH. v.] POWBES EXERCISED BY LEGISLATIVE DEPARTMENT. 157 

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 legislature must decide upon its 
own judgment, and in respect to which it is vested with a large 
discretion which cannot be controlled by the courts, except, 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, rest- 
ing in theory only, the people have been satisfied to leave to the 
judgment, patriotism, and sense of justice of their representa- 
tives.^ 

1 State V. McCann, 21 Ohio St. 211, 212. 



158 CONSTITUTIOKAL LIMITATIONS. [CH. VI. 



[*130] * CHAPTER VI. 

OP THE ENACTMENT OP LAWS. 

When the supreme power of a country is wielded by a single 
man, or by a single body of men, any discussion in the courts of 
the rules which should be observed in the enactment of laws 
must generally be without practical value, and in fact impertinent ; 
for, whenever the unfettered sovereign power of any country ex- 
presses its will in the promulgation of a rule of law, the expressioii 
must be conclusive, though proper and suitable forms may have 
been wholly omitted in declaring it. It is a necessary attribute of 
sovereignty that the expressed will of the sovereign is law ; and 
while we may question and cross-question the words employed, 
to make certain of the real meaning, and may hesitate and doubt 
concerning it, yet, when the intent is made out, it must govern, 
and it is idle to talk of forms that should have surrounded the 
expression, but do not. But when the legislative power of a State 
is to be exercised by a department composed of two branches, or, 
as in most of the American States, of three branches, and these 
branches have their several duties marked out and prescribed by 
the law to which they owe their origin, and which provides for 
the exercise of their powers in certain modes and uiider certain 
forms, there are other questions to arise than those of the mere 
intent of the law-makers, and sometimes forms become of the last 
importance. For in such case not only is it important that the 
will of the law-makers be clearly expressed, but it is also essential 
that it be expressed in due form of law ; since nothing becomes 
law simply and solely because men who possess the legislative 
power will that it shall be, unless they express their determina- 
tion to that effect, in the mode pointed out by the instrument 
which invests them with the power, and under all the forms which 
that instrument has rendered essential.^ And if, when the con- 

1 A bill becomes a law only ■when made necessary by the constitution to 
it has gone through all the forms give it validity. Jones v. Hutchinson, 



CH. VI.] OF THE ENACTMENT OF LAWS. 159 

stitution was adopted, there were known and settled rules and 
usages, forming a part of the law of the country, in reference to 
which the constitution has evidently been framed, and these rules 
and usages required the observance of particular forms, the con- 
stitution itself must also be understood as requiring them, 
because in assuming their existence, and being * framed [* 131] 
with reference to them, it has in effect adopted them as a 
part of itself, as much as if they were expressly incorporated in 
its provisions. Where, for. an instance, the legislative power is 
to be exercised by two houses, and by settled and well-under- 
stood 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 determi- 
nation of the other, the constitution, in providing for two houses, 
has evidently spoken in reference to this settled custom, incor- 
porating it as a rule of constitutional interpretation ; so that it 
would require no prohibitory clause to forbid the two houses from 
combining in one, and jointly enacting laws by the vote of a 
majority of all. All those rules which are of the essentials of 
law-making must be observed and followed ; and it is only the 
customary rules of order and routine, such as in every deliberative 
body are always understood to be under its control, and subject to 
constant change at its will, that the constitution can be understood 
to have left as matters of discretion, to be established, modified, 
or abolished by the bodies for whose government in non-essential 
matters they exist. 

Of the two Souses of the Legislature.^ 

In the enactment of laws the two houses of the legislature are 
of equal importance, dignity, and powCT, and the steps wliich 

43 Ala. 721; States. Piatt, 2 S. C. England, b. 2, c. 3; Federalist, No. 

N. 8. 150; 8. c. 16 Am. Rep. 647; 22; 1 Kent, 208; Story on Const. 

People V. Commissioners of High- §§ 545-570. The early experiments in 

•ways, 54 N. Y. 276 ; Moody «. State, Pennsylvania and Georgia, based on 

48 Ala. 115; 8. c. 17 Am. Rep. 28; Franklin's views, for which see his 

Legg V. Annapolis, 42 Md. 303. Works, Vol. V. p. 165, were the only 

1 The wisdom of a division of the ones made by any of the original 

legislative department has been demon- States with a single house. The first 

strated by the leading writers on con- Constitution of Vermont also provided 

stitutional law, as well as Jby general for a single legislative body, 
experience. See De Lolme, Const, of 



160 CONSTITtrTIONAL LIMITATIONS. [CH. VI. 

result in laws may originate indifferently in either. This is the 
general rule ; but as one body is more numerous than the other 
and more directly represents the people, and in many of the 
States is renewed by more frequent elections, the power to origi- 
nate all money bills, or bills for the raising of revenue, is left 
exclusively, by the constitutions of some of the States, with this 
body, in accordance with the custom in England, which does not 

permit bills of this character to originate with the House 
[* 132] of Lords.i To these * bills, however, the other house may 

propose alterations, and they require the assent of that 
house to their passage, the same as other bills. The time for 
the meeting of the legislature will be such time as is fixed by the 
constitution or by statute ; but it may be called together by the 
executive in special session as the constitution may 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 is conferred by 
a majority of the constitutions upon the executive to prorogue 
and adjourn them. And if the executive in any case undertake 
to exercise this power to prorogue and adjourn, on the assumption 
that a disagreement exists between the two houses which warrants 
his interference, and his action is acquiesced in by those bodies, 
who thereupon cease to hold their regular sessions, the legislature 
must be held in law to have adjourned, and no inquiry can be 
entered upon as to the rightfulness of the governor's assumption 
that such a disagreement existed.^ 

1 There are provisions in the Con- taxes ; but the Senate did not assent 
stitutions of Massachusetts, Delaware, to this conclusion. In England the 
Minnesota, Mississippi, New Hamp- Lords are not allowed to amend money- 
shire, New Jersey, Pennsylvania, bills, and by resolutions of 5th and 
South Carolina, Vermont, Indiana, 6th July, 1860, the Commons deny 
Oregon, Kentucky, Louisiana, Ala- their right even to reject them, 
bama, Arkansas, Georgia, Virginia, ^ This question became important, 
Maine, and Colorado requiring revenue and was passed upon in People v. 
bills to originate in the more popular Hatch, 33 111. 9. The Senate had 
branch of the legislature, but allowing passed a resolution for an adjourn- 
the Senate the power of amendment ment of the session sine die on a day 
usual in other cases. During the named, which was amended by the 
second session of the forty-first Con- House by fixing a different day. The 
gress, the House of Representatives Senate refused to concur, and the 
by their vote denied the right of the House then passed a resolution ex- 
Senate under the Constitution to orig- pressing a desire to recede from its 
inate a bill repealing a law imposing action in amending the resolution, and 



CH. VI.] 



OF THE ENACTMENT OF LAWS. 



161 



* There are certain matters which each house deter- [* 133] 
mines for itself, and in respect to which its decision is 
conclusive. It chooses its own officers, except where, bj"^ consti- 
tution or statute, other provision is made ; it determines its own 
rules of proceeding; it decides upon the election and qualification 
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- 
derly behavior, and other contempts of its authority, as well as to 



requesting a return of the resolution 
by the Senate. While matters stood 
thus, the governor, assuming that 
such a disagreement existed as em- 
powered him to interfere, sent in his 
proclamation, declaring, the legislature 
adjourned to a day named, and which 
was at the very end of the official term 
of the members. The message created 
excitement; it does not seem to have 
been at once acquiesced in, and a pro- 
test against the governor's authority 
was entered upon the journal; but for 
eleven days in one house and twelve 
in the other no entries were made 
upon their journals, and it was un- 
questionable that practically they had 
acquiesced in the action of the gov- 
ernor, and adjourned. At the expira- 
tion of the twelve days, a portion of 
the members came together again, 
and it was claimed by them that the 
message of the governor was without 
authority, and the two hotises must 
be considered as having been, in point 
of law, in session during the inter- 
vening period, and that consequently 
any bills which had before been passed 
by them and sent to the governor for 
his approval,' and which he had not 
returned within ten days, Sundays 



excepted, had become laws under the 
constitution. The Supreme Court 
held that, as the two houses had 
practically acquiesced in the action of 
the governor, the session had come to 
an end, and that the members had 
no power to reconvene on their own 
motion, as had been attempted. The 
case is a very full and valuable one on 
several points pertaining to legislative 
proceedings and authority. As to the 
governor's discretion in calling an 
extra session and revoking the call, 
see ante, p. *115, note. 

1 In People v. Mahaney, 13 Mich. 
481, it was held that the correctness 
of a decision by one of the houses, 
that certain persons had been chosen 
members, could not be inquired into 
by the courts. In that case a law was 
assailed as void, on the ground that a 
portion of the members who voted for 
it, and without whose votes it would 
not have had the requisite majority, 
had been given their seats in the 
house in defiance of law, and to the 
exclusion of others who had a majority 
of legal votes. See the same principle 
in State v. Jarrett, 17 Md. 309. See 
also Lamb v. Lynd, 44 Penn. St. 336 ; 
Opinion of Justices, 56 N. H. 570. 



11 



162 CONSTITTJTIONAIi LIMITATIONS. [CH. VI. 

expel a member for any cause which seems to the body to render 
it unfit that he continue to occupy one of its seats. This power 
is generally enumerated in the constitution among those which 
the two houses may exercise, but it need not be specified in 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 language." 
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 persons, where they are committed in its presence, 
or where they tend directly to embarrass or obstruct its legisla- 
tive proceedings ; and it requires for the purpose no express pro- 
viS|ion 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 concerning 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.® Where imprisonment 

» Hiss v. Bartlett, 3 Gray, 468. * Burdett ». Abbott, 14 East, 1. 

And see Anderson v. Dunn, 6 Wheat. ^ Mr. Potter discusses such a case 

204. in his edition of Dwarris on Statutes, 

2 Anderson v. Dunn, 6 Wheat, c. 18, and Mr. Robinson deals -with 

204; Burdett v. Abbott, 14 East, 1; the case of an arrest for a criminal 

Burnham v. Morrissey, 14 Gray, 226: act, not committed in the presence of 

State V. Matthews, 37 N. H. 450. See the house, in the preface to the sixth 

post, p. *458, note. volume of his Practice. As to the 

» Anderson v. Dunn, 6 Wheat. 204. general right of Parhament to punish 

And see Gosset v. Howard, 10 Q. B. for contempt, see Gosset v. Howard, 

451; Stewart v. Blaine, 1 McArthur, 10 Q. B. 411. 
453. 



CH. VI.] OF THE ENACTMENT OP LAWS. 163 

is imposed as a punishment, it must terminate with the final 
adjournment of the house, and if the prisoner be not then dis- 
charged by its order, he may be released on habeas corpus.^ 

By common parliamentary law, the members of the legislature 
are privileged from arrest on civil process during the session of 
that body, and for a reasonable time before and after, to enable 
them to go to and return from the same. By the constitutions of 
.some of the States this privilege has been enlarged, so as to 
exempt the persons of legislators from any service of civil pro- 
cess,2 and in others their estates are exempt from attachment for 
some prescribed period.^ For any arrest contrary to the parlia- 
mentary law or to these provisions, the house of which the person 
arrested is a member may give summary relief by ordering his 
discharge, and 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 officer having authority to issue writs of habeas corpus 
may also * inquire into the case, and release the party [* 135] 
from the unlawful imprisonment." 

Each house must also be allowed to proceed in its own way in 

1 Jefferson's Manual, § 18; Prioh- tions in civil cases. Gentry v. Grif- 
ard's Case, 1 Lev. 165 ; 1 Sid. 245; T. fith, 27 Tex. 461; Case v. Rorabacker, 
Eaym. 120. 15 Mich. 537. 

2 " Senators and representatives ' The Constitution of Rhode Island 
shall, in all cases except treason, f el- provjdes that "the person of every 
ony, or breach of the peace, be privi- member of the General Assembly 
leged from arrest. They shall not be shall be, exempt from arrest, and his- 
subject to any civil process during the estate from attachment, in any civil 
session of the legislature, or for fifteen action, during the session of the Gen- 
days next before the commencement eral Assembly, and two days before 
and after the termination of eacli ses- the commencement and two days after 
sion." Const, of Mich. art. 4, § 7. the termination thereof, and all pro- 
A like exemption from civil process is cess served contrary hereto shall be 
found in the Constitutions of Kansas, void." Art. 4, § 5. 

Nebraska, Alabama, Arkansas, Call- ' Coifin v. Coffin, 4 Mass. 27. 
fornia, Missouri, Mississippi, Wiscon- ' On this subject, Gushing on Law 

sin, Indiana, Oregon, and Colorado, and Practice of Parliamentary Assem- 

Exemption from arrest is not violated bhes, §§ 546-597, will be consulted, 

by the service of citations or declara- with profit. 



164 



CONSTITUTIONAL LIMITATIONS. 



[CH. VI. 



the collection of such information as maj'- seem important to a 
proper discharge of its functions,^ and whenever it is deemed 
desirable that witnesses should be examined, the power and 
authority to do so is very properly referred to a committee, with 
any such powers short of final legislative or judicial action as 
may seem necessary or expedient in the particular case. Such a 
committee has no authority to sit during a recess of the house 
which has appointed it, without its permission to that effect ; but, 
the house is at liberty to confer such authority if it see fifc.^ A 
refusal to appear or to testify before such committee, or to pro- 
duce books or papers, would be a contempt of the house ; ^ but 
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 



1 See Tillinghast v. Carr, 4 Mc- 
Cord, 152. 

^ Branham v. Lange, 16 Ind. 497 ; 
Marshall v. Harwood, 7 Md. 466. See 
also parliamentary eases, 5 Gray, S74; 
9 Gray, 350 ; 1 Chandler, 50. 

" In re Falvey, 7 Wis. 630 ; Burn- 
ham V. Morrissey, 14 Gray, 226. But 
the privilege of a witness to be exempt 
from a compulsory disclosure of his 
own criminal conduct is the same 
when examined by a legislative body 
or committee as when sworn in court. 
Emery's Case, 107 Mass. 172. In the 
Matter of Kilboum (May, 1876), 
Chief Justice Carter, of the Supreme 
Court of the District of Columbia, 
discharged on habeas corpus a person 
committed by the House of Represen- 
tatives for a contempt in refusing to 
testify; holding that as the refusal 
was an indictable otEenoe by statute, 
a trial therefor must be in the courts, 
and not elsewhere. If this is correct, 
the necessities of legislation will re- 
quire a repeal of the statute ; for if, 
in political cases, the question of pun- 



ishment for failure to give informa- 
tion must be left to a jury, few 
convictions are to be expected, and no 
wholesome fear of the consequences of 
a refusal. On questions of conflict 
between the legislature and the courts 
in matters of contempt, the great case 
of Stockdale v. Hansard, 9 Ad. & El. 
1, s. 0. 3 Per. & Dav. 330, is of the 
highest interest. See May, Const. 
Hist. c. 7. 

* Spangler u. Jacoby, 14 111.297; 
Turley v. Logan Co. , 17 111. 151 ; Jones 
V. Hutchinson, 43 Ala. 721; State v. 
Moffit, 5 Ohio, 358; Miller v. State, 
8 Ohio, N. s. 475; Fordyce v. God- 
man, 20 Ohio, N. s. 1; People v. Su- 
pervisors of Chenango, 8 N. Y. 317; 
People V. Mahaney, 13 Mich. 481; 
Southwark Bank v. Commonwealth, 
2 Penn. St. 446; McCulloch v. State, 
11 Ind. 430; Osborno. Staley, 5 W. 
Va. 85; s. c. 17 Am. Rep. 28; State 
V. Piatt, 2 S. C. N. s. 150; s. o. 
16 Am. Rep. 647; Moody v. State, 
48 Ala. 115; Gardner v. The Col- 
lector, 6 Wall. 499; South Ottawa 



CH. VI.] 



OF THE EKACTMBNT OP LAWS. 



165 



not receive the requisite majority, or that in respect to it the leg- 
islature did not follow any requirement of the constitution, or that 
in any other respect the act was not constitutionally adopted, 
the courts may act upon this evidence, and adjudge the statute 
void.i But whenever it is acting in the apparent performance 
of legal functions, every reasonable presumption is to be made 
in favor of the action of a legislative body ; it will not be pre- 
sumed in any case, from the mere silence of the journals, that 
either house has exceeded its authority, or disregarded a 
*constitutional requirement in the passage of legislative [* 136] 
acts, unless where the constitution has expressly required 
the journals to show the action taken, as, for instance, where it 
requires the yeas and nays to be entered.^ 

The law also seeks to cast its protection around legislative ses- 
sions, and to shield them against corrupt and improper influences, 

V. Perkins, 94 U. S. Rep. 260. 

The presumption always is, -when 

the act, as signed and enrolled, does 

not show the contrary, that it has 

gone through all necessary formal- 
ities ; but this presumption riiay be 

overthrown by the journals. Berry 

V. Baltimore, «&c. R. R. Co., 41 Md. 

446; s. c. 20 Am. Rep. 69; Green u. 
■ Weller, 32 Miss. 650. And see Opin- 
'ions of Justices, 52 N. H. 622; Hen- 

soldt V. Petersburg, 63 111. 157; 

Larrison ». Peoria, &c. R. R. Co., 

77 111. 12; People v. Commissioners 

of Highways, 54 N. Y. 276; English 

V. Oliver, 28 Ark. 317; State v. Swift, 

10 Nev. 176. In a few States the 

ruling is contra. See Sherman v. 

Story, 30 Cal. 253; People v. Burt, 

43 Cal. 560; Louisiana Lottery Co. v. 

Richoux, 23 La. Ann. 743; s. c. 8 

Am. Rep. 602 ; Blessing v. Galveston, 

42 Tex. 641. It has been held that 

where the constitution requires pre- 
vious notice of an application for a 

private act, the courts cannot go 

behind the act to inquire whether 

the notice was given. Brodnax v. 

Groom, 64 N. C. 244. See People v. 

Hurlbut, 24 Mich. 44 ; Day v. Stet- 
son, 8 Me. 365. 

1 See cases cited in preceding note ; 



also Prescott v. Trustees, &c., 19 111. 
324. 

2 Miller v. State, 3 Ohio, n. s. 
475; McCulloch v. State, 11 Ind. 424; 
Supervisors v. People, 25 111. 181.. 
But where a statute can only be 
enacted by a certain majority, e. g. 
two-thirds, it must affirmatively ap- 
pear by the printed statute or the act 
on file that such a vote was had. 
People V. Commissioners of High- 
ways, 54 N. Y. 276. It seems that, in 
Illinois, if one claims that a supposed 
law was never passed, and relies upon 
the records to show it, he must prove 
them. Illinois Cent. R. R. Co. v. 
Wren, 43 111. 77; Grob v. Cushman, 
45 111. 119 ; Bedard v. Hall, 44 111. 91. 
The court will not act upon the 
admission of parties that an act was 
not passed in the constitutional man- 
ner. Happel V. Brethauer, 70 111. 166. 

The Constitution of Alabama, art. 
4, § 27, requires the presiding officer 
of each house, in the presence of the 
house, to sign them " after the titles 
have been publicly read immediately 
before signing, and the fact of sign- 
ing shall be entered on the journal." 
This seems a very imperative require- 
ment. 



166 



CONSTITUTIONAL LIMITATIONS. 



[CH. VI. 



by making void all contracts which have for their object to influ- 
ence legislation in any other manner than by such open and pub- 
lic presentation of facts, arguihents 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 pul)lic measure to the body authorized to pass 
upon it, or to any of its committees empowered to collect facts 
and hear arguments, and parties interested may lawfully contract 
to pay for this service,^ yet to secretly approach the members of 
such a body with a view to influence their action at a time and 
in a manner that do not allow the presentation of opposite views, 
is improper and unfair to the opposing interest ; and a contract 
to pay for this irregular and improper service would not be en- 
forced by the law.^ 

obtain a fair and open hearing. And 
though these committees properly dis- 
pense with many of the rules which 
regulate hearings before judicial tribu- 
nals, yet common fairness requires 
that neither party shall be permitted 
to have secret consultations, and exer- 
cise secret influences that are kept 
from the knowledge of the other 
party. The business of ' lobby mem- 
bers ' is not to go fairly and openly 
before the committees, and present 
statements, proofs, and arguments 
that the other side has an opportunity 
to meet and refute, if they are wrong, 
but to go secretly to the membei's and 
ply them with statements and argu- 
ments that the other side cannot 
openly meet, however erroneous they 
may be, and to bring illegitimate in- 
fluences to bear upon them. If the 
' lobby member ' is selected because 
of his political or personal influence, 
it aggravates the wrong. If his busi- 
ness is to unite various interests by 
means of projects that are called ' log 
rolling,' it is still worse. The prac- 
tice of procuring members of the legis- 
lature to act under the influence of 
what they. have eaten and drank at 
houses of entertainment, tends to 
render those who yield to such in- 
fluences wholly unfit to act in such 



1 See Wildey v. Collier, 7 Md. 273; 
Bryan v. Reynolds, 5 Wis. 200 ; Brown 
». Brown, 34 Barb. 583; Rassell v. 
Burton, 66 Barb. 539. 

^ This whole subject was very fully 
considered in the case of Frost i>. 
Inhabitants of Belmont, 6 Allen, 152, 
which was a bill filed to restrain the 
payment by the town of demands to 
the amount of nearly $9,000, which 
the town had voted to pay as expenses 
in obtaining their act of incorporation. 
By the court. Chapman, J. : " It is to 
be regretted that any persons should 
have attempted to procure an act of 
legislation in this Commonwealth, by 
such means as some of these items 
indicate. By the regular course of leg- 
islation, organs are provided through 
which any parties may fairly and 
openly approach the legislature, and 
be heard with proofs and arguments 
respecting any legislative acts which 
they may be interested in, whether 
public or private. These organs are 
the various committees appointed to 
consider and report upon the matters 
to be acted upon by the whole body. 
When private interests are to be 
affected, notice is given of the hear- 
ings before these committees; and 
thus opportunity is given to adverse 
parties to meet face to face and 



CH. VI.] 



OF THE ENACTMENT OP LAWS. 



167 



* The Introduction and. Passage of Bills. [* 137] 

Any member may introduce a bill in the house to which he 
belongs, in accordance with its rules ; and this he may do 



cases. They are disqualified from 
acting fairly towards interested par- 
ties or towards the public. The ten- 
dency and object of these influences 
are to obtain by corruption what it is 
supposed cannot be obtained fairly. 

" It is a well-established principle, 
that all contracts which are opposed 
to public policy, and to open, upright, 
and fair dealing, are illegal and void. 
The principle was fully discussed in 
Fuller V. Dame, 18 Pick. 472. In 
several other States it has been ap- 
plied to cases quite analogous to' the 
present case. 

" In Pingrey v. Washburn, 1 Aik. 
264, it was held in Vermont that an 
agreement, on the part of a corpora- 
tion, to grant to individuals certain 
privileges in consideration that they 
would withdraw their opposition to 
the passage of a legislative act touch- 
ing the interests of the corporation, is 
against sound policy, prejudicial to 
just and correct legislation, and void. 
In Gulick v. Ward, 5 Halst. 87, it was 
decided in New Jersey that a contract 
which contravenes an act of Congress, 
and tends to defraud the United 
States, is void. A. had agreed to 
give B. $100,' on condition that B. 
would forbear to propose or offer 
himself to the Postmaster-General to 
carry the mail on a certain mail 
route, and it was held that the con- 
tract was against public policy and 
void. The general principle as to 
contracts contravening public policy 
was discussed in that case at much 
length. In Wood v. McCann, 6 Dana, 
366, the defendant had employed the 
plaintiff to assist him in obtaining a 
legislative act in Kentucky legalizing 
his divorce from a former wife, and 
his marriage with bis present wife. 



The court say : ' A lawyer may be 
entitled to compensation for writing a 
petition, or even for making a public 
argument before the legislature or a 
committee thereof; but the law should 
not hold him or any other person to a 
recompense for exercising any personal 
influence in any way, in any act of 
legislation. It js certainly important 
to just and wise legislation, and 
therefore to the most essential inter- 
ests of the public, that the legislature 
should be perfectly free from any 
extraneous influence which may either 
corrupt or deceive the members, or 
any of them.' 

" In Clippinger v. Hepbaugh, 5 
Watts & ^. 315, it was decided in 
Pennsylvania that a contract to pro- 
cure or endeavor to procure the pas- 
sage of an act of the legislature by 
using personal influence with the 
members, or by any sinister means, 
was void, as being inconsistent with 
public policy and the integrity of our 
political institutions. And an agree- 
ment for a contingent fee to be paid 
on the passage of a legislative act was 
held to be illegal and void, because it 
would be a strong incentive to the 
exercise of personal and sinister in- 
fluAices to effect the object. 

" The subject has been twice adju- 
dicated upon in New York. In Har- 
ris V. Roof, 10 Barb. 489, the Supreme 
Court held that one could not recover 
for services performed in going to see 
individual members of the house, to 
get them to aid in voting for a pri- 
vate claim, the services not being per- 
formed before the house as a body 
nor before its authorized committees. 
In Sedgwick v. Stanton, 4 Kernan, 
289, the court of appeals held the 
same doctrine, and stated its proper 



168 



CONSTITUTIONAL LIMITATIONS. 



[CH. VI. 



[* 138] at any * time when the house is in session, unless the 
constitution, the law, or the rules of the house forbid. 



limits. Selden, J., makes the follow- 
ing comments on the case of Harris v. 
Roof : ' Now the coart did not mean 
by this decision to hold that one who 
has a claim against the State may not 
employ competent persons to aid him 
in properly presenting such claim to 
the legislature, and in supporting it 
with the necessary proofs and argu- 
ments. Mr. Justice Hand, who de- 
livered the opinion of the court, very 
justly distinguishes between services 
of the nature of those rendered in 
that case, and the procuring and pre- 
paring the necessary documents in 
support of a claim, or acting as coun- 
sel before the legislature or some 
committee appointed by that body. 
Persons may, no doubt, be employed 
to conduct an application to the legis- 
lature, as well as to conduct a suit at 
law; and may contract for and receive 
pay for their services in preparing 
documents, collecting evidence, mak- 
ing statements of facts, or preparing 
and making oral or written argu- 
ments, provided all these are used or 
designed to be used before the legis- 
lature or some committee thereof as 
a body; but they cannot, with pro- 
priety, be employed to exert their 
personal influence with individual 
members, or to labor in any form 
privately with such members out of 
the legislative halls. Whatever is 
laid before the legislature in writing, 
or spoken openly or publicly in its 
presence or that of a committee, if 
false in fact, may be disproved, or if 
wrong in argument may be refuted ; 
but that which is whispered into the 
private ear of individual members is 
frequently beyond the reach of cor- 
rection. The .point of objection in 
this class of cases then is, the per- 
sonal and private nature of the ser- 
vices to be rendered. ' 

" In Fuller v. Dame, cited above. 



Shaw, Ch. J., recognizes the well- 
established right to contract and pay 
for professional services when the 
promisee is to act as attorney and 
counsel, but remarks that ' the fact 
appearing that persons do so act pre- 
vents any injurious effects from such 
proceeding. Such counsel is consid- 
ered as standing in the place of his 
principal, and his arguments and rep- 
resentations are weighed and consid- 
ered accordingly.' He also admits 
the right of disinterested persons to 
volunteer advice ; as when a person 
is about to make a will, one may 
represent to him the propriety and 
expediency of making a bequest to a 
particular person ; and so may one 
volunteer advice to another to marry 
another person ; but a promise to pay 
for such service is void. 

" Applying the principles stated 
in these cases to the bills which the 
town voted to pay, it is manifest that 
some of the money was expended for 
objects that are contrary to public 
policy, and of a most reprehensible 
character, and which could not, there- 
fore, form a legal consideration for a 
contract." 

See, further, a full discussion of the 
same subject, and reaching the same 
conclusion, by Mr. Justice Grier, in 
Marshall v. Baltimore & Ohio R. R. 
Co., 16 How. -SU. A sale of a town 
office, though by the town itself, can- 
not be the consideration for a con- 
tract. Meredith v. Ladd, 2 N. H. 
517 ; see Carleton v. Whitcher, 5 
N. H. 196; Eddy u. Capron, 4 R. I. 
394. A town cannot incur expenses 
in opposing before a legislative com- 
mittee a division of the territorial 
limits : Westbrook i'. Deering, 63 
Me. 231 ; or to pay the expenses of 
a committee to procure the annexa- 
tion of the town to another : Minot 
V. West Roxbury, 112 Mass. 1 ; s. c. 



CH. VI.] 



OF THE EN^ACTMBNT OF LAWS. 



169 



The Constitution of Michigan* provides that no new bill [* 139] 
shall be introduced into either house of the legislature 
after the first fifty days of the session shall have expired ; ^ and the 
Constitution of Maryland provides that no bill shall originate in 
either house within the last ten days of the session.^ The purpose 
of these clauses is to prevent hasty and improvident legislation, 
and to compel, so far as any previous law can accomplish that 
result, the careful examination of proposed laws, or at least the 
affording of opportunity for that purpose ; which will not always 
be done when bills may be introduced up to the very hour of 
adjournment, and, with the concurrence of the proper majority, 
put immediately upon their passage.* 



17 Am. Rep. 52. And any contract 
the purpose of which is to influence a 
public officer or body to favor persons 
in the performance of his public duty 
is void, on grounds of pujblic policy. 
Ordineal v. Barry, 24 Miss. 9. The 
same general principle will be found 
applied in the following cases : 
Swayze ». Hull, 8 N. J. 54; Wood 
V. McCann, 6 Dana, 366 ; Hatzfield v. 
Gulden, 7 Watts, 152 ; Gil b. Davis, 
12 La. Ann. 219 ; Powers v. Skinner, 
34 Vt. 274 ; Frankfort v. Winterport, 
54 Me. 250 ; Rose v. Lonax, 21 Barb. 
361 ; Devlin v. Brady, 32 Barb. 518. 
A contract to assist by money and 
influence to secure the election of a 
candidate to a public office in consid- 
eration of a share of its emoluments, 
in the event of election, is void as 
opposed to public policy, and if vol- 
untarily rescinded by the parties a 
recovery cannot be had of the moneys 
advanced under it. Martin v. Wade, 
37 Cal. 168. So is a contract to 
resign an office that another may be 
appointed. Eddy v. Capron, 4 R. I. 
394. 

1 Art. 4, § 28. 

2 Art. 3, § 26. In Arkansas there 
is a similar provision, limiting the 
time to three days. Art. 5, § 24. 

8 A practice has sprung up of 
evading these constitutional provi- 
sions by introducing a new bill after 
the time has expired when it may 



constitutionally be done, as an amend- 
ment to some pending bill, the whole 
of which, except the enacting clause, 
is struck out to make way for it. 
Thus, the member who thinks he 
may possibly have occasion for tie 
introduction of a new bill after the con- 
stitutional period has expired, takes 
care to introduce sham bills in due 
season which he can use as stocks to 
graft upon, and which he uses irre- 
spective of their character or contents. 
The sham bill is perhaps a bill to 
incorporate the city of Siam. One of 
the member's constituents applies to 
him for legislative permission to con- 
struct a dam across the Wild Cat 
River. Forthwith, by amendment, 
the bill entitled a bill to incorporate 
the city of Siam has all after the 
enacting clause stricken out, and it is 
m^de to provide, as its sole object, 
that John Doe may construct a dam 
across the Wild Cat. With this title 
and in this form it is passed ; but the 
house then considerately amends the 
title to correspond with the purpose 
of the bill, and the law is passed, and 
the constitution at the same time 
saved! This trick is so transparent, 
and so clearly in violation of the con- 
stitution, and the evidence at the 
same time is so fully spread upon 
the record, that it is a matter of sur- 
prise to find it so often resorted to. 



170 



CONSTITUTIONAL LIMITATIONS. 



[oh. VI. 



For the same reason it is required by the constitutions of several 
of the States, that no bill shall have the force of law until on three 
several days it be read in each house, and free 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 journals 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 constitution must be presumed, in accordance with the gen- 
eral rule which presumes the proper discharge of ofiicial 
[* 140] duty.i * In the reading of a bill, it seems to be sufficient 
to read the written document that is adopted by the two 
houses ; even though something else becomes law in consequence 
of its passage, and by reason of being referred to in it.^ Thus, a 
statute which incorporated a military company by reference to 
its constitution and by-laws, was held valid notwithstanding the 
constitution and by-laws, which would acquire the force of la,w 
by its passage, were not read in the two houses as a part of it.^ 



^ Supervisors of Schuyler Co. v. 
People, 25 111. 181; Miller v. State, 
3 Ohio, N. s. 480. In People v. 
Starne, 35 111. 121, it is said the 
courts should not enforce a legisla- 
tive act unless there is record evi- 
dence, from the journals of the two 
houses, that every material require- 
ment of the constitution has been 
satisfied. And see Ryan v. Lynch, 
68 111. 160. The clause in the Con- 
stitution of Ohio is: " Every bill 
shall be fully and distinctly read on 
three different days, unless, in case 
of urgency, three-fourths of the house 
in which it shall be pending shall dis- 
pense with this rule ; " and in Miller 
0. State, 3 Ohio, n. s. 481, and Pim 
V. Nicholson, 6 Ohio, n. s. 178, this 
provision was held to be merely di- 
rectory. The distinctness with which 
any bill must be read cannot possibly 
be defined by any law ; and it must al- 
ways, from the necessity of the case, 
rest with the house to determine finally 
whether in this particular the consti- 
tution has been complied with or not ; 
but the rule respecting three several 



readings on different days is specific, 
and capable of being precisely com- 
plied with, and we do not see how, 
even under the rules applied to stat- 
utes, it can be regarded as directory 
merely, provided it has a purpose 
beyond the mere regular and orderly 
transaction of business. That it has 
such a purpose, that it is designed to 
prevent hasty and improvident legis- 
lation, and is therefoi-e not a mere 
rule of order, but one of protection 
to the public interests and to the 
citizens at large, is very clear ; and 
independent of the question whether 
definite constitutional principles can 
be dispensed with in any case on the 
ground of their being merely direc- 
tory, we cannot see how this can be 
treated as any thing but mandatory. 
See People v. Campbell, 8 111. 466 ; 
McCulloch V. State, 11 Ind. 424. 

2 Dew V. Cunningham, 28 Ala. 
466. 

s Bibb County Loan Association 
V. Richards, 21 Geo. 592. And see 
Pulford V. Fire Depairtmeut, 31 Mich. 
458, 



CH. VI.] OF THE ENACTMENT OF LAWS. 171 

Bvit there cannot be many cases, we shoul.d suppose, to which 
this ruling would be applicable. 

It is also provided in the constitutions of some of the States that, 
on the final passage of every bill the yeas and nays shall be entered 
on the journal. Such a provision is designed to serve an important 
purpose in compelling each member present to assume as well as 
to feel his due share of responsibility in legislation ; and also' in 
furnishing definite and conclusive evidence whether the bill has 
been passed by the requisite majority or not. " The constitution 
prescribes this as the test by which to determine whether the 
requisite number of members vote in the affirmative. The office 
of the journal is to record the proceedings of the ho 3, and 
authenticate and preserve the same. It must appear 01 the face 
of the journal that the bill passed by a constitutional majority. 
These directions are all clearly imperative. They are 
* expressly enjoined by the fundamental law as matters [* 141] 
of substance, and cannot be dispensed with by the legis- 
lature." 1 

For the vote required in the passage of any particular law 
the reader is referred to the constitution of his State. A sim- 
ple majority of a quorum is sufficient, unless the constitution 
establishes some other rule ; and where, by the constitution, a two- 
thirds or three-fourths vote is made essential to the passage of any 
particular class of bills, two-thirds or three-fourths of a quorum 
will be understood, unless the terms employed clearly indicate 
that this proportion of all the members, or of all those elected, is 
intended.^ 

1 Spangler v. Jacoby, 14 111. 297 ; -which requires separate action in 

Supervisors of Schuyler Co. ». People, every case, and that when resorted 

25 111. 183; Ryan v. Lynch, 68 111. tu, it is usually for the purpose of 

160; Steckert v. East Saginaw, 22 avoiding another provision of the 

Mich. 104 ; People ». Commissioners constitution which seeks to preclude 

of Highways, 54 N. Y. 276. For a " log-rolling " legislation, by forbid- 

peculiar case see Division of Howard ding the incorporation of distinct 

County, 15 Kan. 194. There have measures in one and the same statute, 

been cases, as we happen to know, in ^ Southworth v. Palmyra & Jacfc- 

which several bills have been put on sonburg R. R. Co., 2 Mich. 287; 

their passage together, the yeas and State v. McBride, 4 Mo. 303. By 

nays being once called for them all, most of the constitutions either all 

though the journal is made to state the laws, or laws on some particular 

falsely a separate vote- on each. We subjects, are required to be adopted 

need hardly say that this is a mani- by a majority vote or some other pro- 

fest violation of the constitution, portion of " all the members elected," 



172 CONSTITUTIONAL LIMITATIONS. [CH. VI. 



The Title of a Statute. 

The title of an act was formerly considered no part of it ; and 
although it might be looked to as a guide to the intent of the law- 
makers when the body of the statute appeared to be in any respect 
ambiguous or doubtful,^ yet it could not enlarge or restrain the 
provisions of the act itself,^ and the latter might therefore be 
good when that and the title were in conflict. The reason for this 
was that anciently titles were not prefixed at all, and when after- 
wards they came to be introduced, they were usually prepared by 
the clerk of the house in which the bill first passed, and attracted 
but little attention from the members. They indicated the clerk's 
understanding of the contents or purpose of the bills, rather than 
that of the house ; and they therefore were justly regarded as 
furnishing very little insight into the legislative intention. Titles 
to legislative acts, however, have recently, in some States, come 
to possess very great importance, by reason of constitutional pro- 
visions, which not only require that they shall correctly indicate 
the purpose of the law, but which absolutely make the title to 
control, and exclude every thing from effect and operation as law 
which is incorporated in the body of the act but is not within the 
purpose indicated by the title. These provisions are given in the 
note, and it will readily be perceived that they make a very great 
change in the law.^ 

or of "the whole representation." 107. Compare United States w. Union 

These and similar phrases require all Pacific R. R. Co., 91 U. S. Rep. 72. 
the members to be taken into account s The Constitutions of Minnesota, 

whether present or not Where a Kansas, Maryland, Kentucky, Ner 

majority of all the members elected is braska, and Ohio, provide that "no 

required in the passage of a law, an law shall embrace more than one 

inehgible person is not on that ac- subject, which shall be expressed in 

count to be excluded in the count, its title." Those of Michigan, New 

Satterlee v. San Francisco, 22 Cal. Jersey, Louisiana, and Texas are 

314. similar, substituting the word object 

1 United States v. Palmer, 3 for subject. The Constitutions of 
Wheat. 610 ; Burgett v. Burgett, South Carolina, Alabama, Tennessee, 
1 Ohio, 480; Mundt u. Sheboygan, Arkansas, and California contain sim- 
&c. R. R. Co., 31 Wis. 451; Eastman ilar provisions. The Constitution of 
J). McAlpin, 1 Kelley, 157; Cohen v. New Jersey provides that, "to avoid 
Barrett, 5 Call, 195; Garrigasu. Board improper influences which may result 
of Com'rs, 39 Ind. 66. See Dwarris from hitermixing in one and the same 
on Statutes, 502. act such things as have no proper 

2 Hadden ». The Collector, 5 Wall, relation to each other, every law shall 



CH. VI.] 



OF THE ENACTMENT OF LAWS. 



173 



* In considering these provisions it is important to [* 142] 
regard, — 

1. The evils designed to he remedied. The Constitution of New- 
Jersey refers to these as "the improper influences which may- 
result from intermixing in one and the same act such things as 
have no proper relation to each other." In the language of the 
Supreme Court of Louisiana, speaking of the former practice : 
" The title of an act often afforded no clue to its contents. Im- 
portant general principles were found placed in acts private or 
local in their operation ; provisions concerning matters of practice 
or judicial proceedings were sometimes included in the same 
statute with matters entirely foreign to them, the result of which 
was that on many important subjects the statute law had become 
almost unintelligible, as they whose duty it has been to examine 
or act under it can vrell testify. To prevent any further accu- 
mulation to this chaotic mass was the object of the constitutional 
provision under consideration." ^ The Supreme Court of Michigan 



embrace but one object, and that shall 
be expressed in the title." The Con- 
stitution of Missouri contains the 
following provision : " No bill (ex- 
cept general appropriation bills, which 
may embrace the various subjects and 
accounts for and on account of which 
moneys are appropriated, and except 
bills passed under the third sub- 
division of section 44 of this article) 
shall contain more than one subject, 
which shall be clearly expressed in its 
title." The exception secondly re- 
ferred to is to bills for free public- 
school purposes. The Constitutions 
of Indiana, Oregon, and Iowa provide 
that ' ' every act shall embrace but 
one subject, and matters properly 
connected therewith, which subject 
shall be expressed in the title. But 
if any subject shall be embraced in an 
act which shall not be expressed in 
the title, such act shall be void only 
as to so much thereof as shall not be 
expressed in the title." The Consti- 
tution of Nevada provides that " every 
law enacted by the legislature shall 
embrace but one subject, and matters 
properly connected therewith, which 
subject shall be briefly expressed in 



the title." The Constitutions of New 
York and Wisconsin provide that " no 
private or local bill which may be 
passed by the legislature shall embrace 
more than one subject, and that shall 
be expressed in the' title." The Con- 
stitution of Illinois is similar to that 
of Ohio, with the addition of the sav- 
ing clause found in the Constitution 
of Indiana. The provision in the 
Constitution of Colorado is similar to 
that of Missouri. In Pennsylvania 
the provision is that ' ' no bill except 
general appropriation bills shall be 
passed containing more than one 
flubject, which shall be clearly ex- 
pressed in its title." Const, of 1853. 
Whether the word object is to have 
any different construction from the 
word subject, as used in these provi- 
sions, is a question which may some 
time require discussion; but as it is 
evidently employed for precisely the 
same purpose, it would seem that it 
ought not to have. Compare Hingle 
V. State, 24 Ind. 28, and People v. 
Lawrence, 36 Barb. 192. 

1 Walker v. Caldwell, 4 La. Ann. 
298. See Fletcher v. Oliver, 25 Ark. 
298. 



174 CONSTITUTIONAL LIMITATIONS. [CH. VI. 

say : " The history and purpose of this constitutional pro- 
[* 143] vision are too well understood to require any * elucidation 

at our hands. The practice of bringing together into one 
bill subjects diverse in their nature and having no necessary 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 upon its own merits, was one both corruptive of the 
legislator and dangerous to the State. It was scarcely more so, 
however, than another practice, also intended to be remedied by 
this provision, by which, through dexterous management, clauses 
were inserted in bills of which the titles gave no intimation, and 
their passage secured through 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 thus 
multiplying their number ; but the framers of the constitution 
meant to put an end to legislation of the vicious character referred 
to, which was little less than a fraud upon the public, and to re- 
quire that in every case the proposed measure should stand upon 
its own merits, and that the legislature should be fairly satisfied 
of its design when required to pass upon it." ^ The Court of 
Appeals of New York declare the object of this provision to be 
" that neither the members of the legislature nor the people should 
be misled by the title." ^ The Supreme Court of Iowa say : " The 
intent of this provision of the constitution was, to prevent the 
union, in the same act, of incongruous matters, and of objects 

1 People V. Mahaney, 13 Mich, memorable measure of the 17th of 
494. And see Board of Supervisors January, 1795, as is well kno-wn, was 
V. Heenan, 2 Minn. 336; Davis v. smuggled through the legislature 
Bank of Fulton, 81 Geo. 69 ; St. Louis under the caption of an act " for the 
K. Tiefel, 42 Mo. 578. The Constitu- payment of the late State troops," 
tion of Georgia provided that " no and a declaration in its title of the 
law or ordinance shall pass containing right of the State to the unappro- 
any matter different from what is priated territory thereof " for the pro- 
expressed in the title thereof." In tection and support of the frontier 
Mayor, &c. of Savannah ». State, settlements." The Yazoo act made 
4 Geo. 38, Lumpkin, J., says: "I a large grant of lands to a company 
would observe that the traditionary of speculators. It constituted a prom- 
history of this clause is that it was inent subject of controversy in State 
inserted in the constitution of 1798 politics for many years, 
at the instance of General James ^ Sun Mutual Insurance Co. v. 
Jackson, and that its necessity was Mayor, &c. of New York, 8 N. Y. 
suggested by the Yazoo act. That 253. 



CH. VI.] OF THE ENACTMENT OF LAWS. 175 

having no connection, no relation. And with this it was designed 
to prevent surprise in legislation, by having matter of one nature 
embraced in a bill whose title expressed another." i And similar 
expressions will be found in many other reported cases.^ It may 
therefore be assumed as settled that the purpose of these provi- 
sions was : first, to prevent hodge-podge, or " log-rolling " legis- 
lation ; second, to prevent sui-prise or fraud upon the legislature 
by means of provisions in bills of which the titles 
* gave no intimation, and which might therefore be over- [* 144] 
looked and carelessly and unintentionally adopted ; and, 
third, to fairly apprise the people, through such publication of 
legislative proceedings as is usually made, of the subjects of 
legislation that are being considered, in order that they may have 
opportunity of being heard thereon, by petition or otherwise, if 
they shall so desire. 

2. The particularity required in stating the object. The gen- 
eral 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 that the title of "an act to establish a 
police government for the city of Detroit," was not objectionable 
for its generality, and that all matters properly connected with 
the establishment and efficiency of such a government, including 
taxation for its support, and courts for the examination and trial 
of offenders, might constitutionally be included in the bill under 
this general title. Under any different ruling it was said, " the 
police government of a city could qot be organized without a dis- 
tinct act for each specific duty to be devolved upon it, and these 
could not be passed until a multitude of other statutes had taken 
the same duties from other officers before performing them. And 
these several statutes, fragmentary as they must necessarily be, 

1 State V. County Judge of Davis provision in the constitution of that 
Co., 2 Iowa, 282. See State v. Sil- State to be designed, among other 
ver, 9 Nev. 227. things, to assist in the codification of 

2 See Conner u. Mayor, &c. of the lavfs. Indiana Central Railroad 
New York, 5 N. Y. 293; Davis v. Co. v. Potts, 7 Ind. 685; Hingle v. 
State, 7 Md. 151. The Supreme State, 24 Ind. 28. See People v. In- 
Court of Indiana also understand the stitution, &c., 71 111. 229. 



176 



CONSTITUTIONAL LIMITATIONS. 



[CH. VI. 



would often fail of the intended object, from the inherent diffi- 
culty in expressing the legislative will when restricted to such 
narrow bounds." ^ The generality of a title is therefore no objec- 
tion to it, so long as it is not made a cover to legislation incongru- 
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 very 



1 People V. Mahaney, 13 Mich. 
495. See also Morford ». Unger, 

8 Iowa, 82, and Whiting v. Mount 
Pleasant, 1 1 Iowa, 482 ; Bright v. 
McCuUoch, 27 Ind. 223; Mayor, &c. 
of Annapolis v. State, 30 Md. 112 ; 
State V. Union, 33 N. J. 350 ; Hum- 
boldt County V. Churchill Co. Com- 
missioners, 6 Nev. 30; State v. Silver, 

9 Nev. 227. 

2 Indiana Central Railroad Co. v. 
Potts, 7 Ind. 681; People v. Briggs, 
50 N. Y. 553; People v. Wands, 23 
Mich. 385 ; Washington Co. v. Frank- 
lin E. R. Co., 34 Md. 159. 

8 Woodson V. Murdook, 22 Wall. 
351. In State v. Powers, 14 Ind. 195, 
an act came under consideration, the 
title to which was, " An act to amend 
the first section of an act entitled ' An 
act concerning licenses to vend foreign 
merchandise, to exhibit any caravan, 
menagerie, circus, rope and wire danc- 
ing puppet-shows, and legerdemain,' 
approved June 15, 1852, and for the 
encouragement of agriculture, and 
concerning the licensing of stock and 
exchange brokers." It was held that 
the subject of the act was licenses, 
and that it was not unconstitutional 
as containing more than one subject. 
But it was held also that, as the 
licenses which it authorized and re- 
quired were specified in the title, the 
act could embrace no others, and 
consequently a provision in the act 
requiring concerts to be licensed was 
void. In State v. County Judge of 
Davis County, 2 Iowa, 280, the act in 



question was entitled " An act in 
relation to certain State roads therein 
named." It contained sixty-six sec- 
tions, in which it established some 
forty-six roads, vacated some, and 
provided for the re-location of others. 
The court sustained the act. " The 
object of an act may be broader or 
narrower, more or less extensive ; and 
the broader it is, the more particulars 
will it embrace. . . . There is un- 
doubtedly great objection to uniting 
so many particulars in one act, but so 
long as they are of the same nature, 
and come legitimately under one gen- 
eral determination or object, we cannot 
say that the act is unconstitutional." 
P. 284. Upon this subject see Indiana 
Central Railroad Co. v. Potts, 7 Ind. 
684, where it is considered at length. 
Also Brewster v. Syracuse, 19 N. Y. 
116; Hall v. Bunte, 20 Ind. 304; 
People V. McCallum, 1 Neb. 182 ; 
Mauch Chunk v. McGee, 81 Penn. 
St. 433. An act entitled " An act 
fixing the time and mode of electing 
State printer, defining his duties, fix- 
ing compensation, and repealing all 
laws coming in conflict with this act," 
was sustained in Walker v. Dunham, 
17 Ind. 483. In the State v. Young, 
47 Ind. 150, the somewhat strict ruling 
was made, that provisions punishing 
intoxication could not be embraced in 
an act entitled " To regulate the sale 
of intoxicating liquors." In Kurtz 
V. People, 33 Mich. 279, the constitu- 
tional provision is said to be "a very 
wise and wholesome provision, in- 



CH. VI.], 



OF THE ENACTMENT OP LAWS. 



177 



* pl^in ; that the use of the words " other purposes," which [* 145] 
has heretofore been so common in the tifle to acts, with a 
view to cover any and every thing, whether connected with the ■ 
main purpose indicated by the title or not, can no longer be of any 
avail where these provisions exist. As was said by the Supreme 
Court of New York in a case where these words had been made 
use of in the title to a local bill : " The words ' for other purposes ' 
must be laid out of consideration. They express nothing, and 
amount to nothing as a compliance with this constitutional require- 
ment. Nothing which the act could not embrace without them 
can be brought in by their aid." ^ 

3. What is embraced 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 
repealing section in the new statute is valid, notwithstanding 
the title is silent ort that subject.^ So an act to incorpo- 
rate 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 



tended to prevent legislators from 
being entrapped into the careless pas- 
sage of bills on matters foreign to the 
ostensible purpose of the statute as 
entitled. But it is not designed to 
require the body of the bill to be a 
mere repetition of the title. Neither 
is it intended to prevent including in 
the bill such means as are reasonably 
adapted to secure the objects indi- 
cated by the title." And see Mor- 
ton V. The Controller, 4 S. C. n. s. 
430. 

1 Town of Fishkill «. Fishkill and 
Beekman Plank Road Co., 22 Barb. 
642. See, to the same effect, Ryer- 
son V. Utley, 16 Mich. 269 ; St. Louis 
V. Tiefel, 42 Mo. 578. An act entitled 
" An act to repeal certain acts therein 
named," is void. People v. Mellen, 
32 111. 181. An act, having for its 
sole object to legalize certain proceed- 
ings of the Common Council of Janes- 
ville, but entitled merely " An act to 
legalize and authorize the assessment 
of street improvements and assess- 



ments," was held not to express the 
subject, because failing to specify the 
locality. Durkee v. Janesville, 26 
Wis. 697. 

^ Gabbert v. Railroad Co., 11 Ind. 
365. The constitution under which 
this decision was made required the 
law to contain but one subject, and 
matters properly connected therewith ; 
but the same decision was made under 
the New York Constitution, which 
omits the words here italicized ; and 
it may well be doubted whether the 
legal effect of the provision is varied 
by the addition of those words. See 
Guilford i>. Cornell, 18 Barb. 640. 

* Supervisors, &c. v. People, 25 lU. 
181. So a provision for the costs on 
appeal from a justice, is properly con- 
nected with the subject of an act 
entitled " of the election and qualifir 
cation of justices of the peace, and 
defining their jurisdiction,, powers, and 
duties in civil cases." Robinaon v. 
Skipworth, 23 Ind. 311. 



12 



178 CONSTITUTIOKAL LIMITATIONS. [CH. VI. 

Benevolent Association may lawfully include under this title pro- 
visions for levying a tax* upon the income of foreign insurance 
companies, at the place of its location, for the benefit of the corpo- 
ration.^ So an act to provide a homestead for widows and children 
was held valid, though what it provided for was the pecuniary 
means sufficient to purchase a homestead .^ So a;n act " to regulate 
proceedings in the county court " was held to properly embrace 
a provision giving an appeal to the District Court, and regulating 
the proceedings therein on the 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 counties out of those 
existing.^ So a provision for the organization and sitting of courts 
in new counties is properly connected with the subject of the 
formation of such counties, and niay be included in " an act to 
authorize the formation of new counties, and to change 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 the constitutional 
provision liberally, rather than to embarrass legislation by a con- 
struction whose strictness is unnecessary to thie accomplishment of 
the beneficial purposes for which it has been adopted.'^ 

* Firemen's Association v. Louns- Charlt. 368; Martin v. Broach, 6 
bury, 21 111. 511. Geo. 21; Protho v. Orr, 12 Geo. 36; 

^ Succession of Lanzetti, 9 La. Wheeler v. State, 23 Geo. 9 ; Hill v. 

Ann. 329. Commissioners, 22 Geo. 203 ; Jones 

» Murphey v. Menard, 11 Tex. v. Columbus, 25 Geo. 610; Denham 

673. V. Holeman, 26 Geo. 182; Allen v. 

* Clinton v. Draper, 14 Ind. 295. Tison, 50 Geo. 374; Ex parte Conner, 
s Haggard v. Hawldns, 14 Ind. 51 Geo. 571 ; Brieswick v. Mayor, &o. 

299. And see Duncombe v. Prindle, of Brunswick, 51 Geo. 639; People 

12 Iowa, 1. V. McCann, 16 N. Y. 58 ; Williams 

« Brandon ». State, 16 Ind. 197. v. People, 24 N. Y. 405 ; People v. 

In this case, and also in State v. Allen, 42 N. Y. 404 ; Huber v. People, 

Bowers, 14 Ind. 198, it was held that 49 N. Y. 132; People v. Rochester, 

if the title to an original act is suffi- 50 N. Y. 525 ; Wenzler v. People, 58 

cient to embrace the matters covered N. Y. 516 ; People v. Dudley, 58 

by the provisions of an act amenda- N. Y. 323; People v. Quigg, 59 

tory thereof, it is unnecessary to N. Y. 83 ; Harris v. People, 59 N. Y. 

inquire whether the title of an amend- 599 ; In re Flatbush, 60 N. Y. 398; 

atory act would, of itself, be sufficient. People ». Willsea, 60 N. Y. 507 ; 

And see Morford v. Unger, 8 Iowa, 82.' Kailroad Co. v. Whiteneck, 8 Ind. 

' Green v. Mayor, &c., K. M. 217; Wilkins v. Miller, 9 Ind. 100; 



CH. VI.] 



OF THE ENACTMENT OF LAWS. 



179 



* 4. The effect if the title emhrace more than one ohject. [* 147] 
Perhaps in those States where this constitutional provision 



Foley i). State, 9 Ind. 363 ; Gillespie 
V. State, 9 Ind. 380; Mewherter v. 
Price, 11 Ind. 199 ; Reed n. State, 
12 Ind. 641 ; Henry v. Henry, 13 Ind. 
250 ; Igoe v. State, 14 Ind. 239 ; Stur- 
geon V. Hitchens, 22 Ind. 107 ; Lauer 
V. State, 22 Ind. 461 ; Central Plank 
Boad Co. V. Hannaman, 22 Ind. 484 ', 
Garrigus w. Board of Commissioners, 
39 Ind. 66 ; McCaslin v. State, 44 
Ind. 151 ; Williams v. State, 48 Ind. 
306 ; Jackson v. Beeves, 53 Ind. 231 ; 
Railroad Co. v. Gregory, 16 111. 20; 
Firemen's Association v. Lounsbury, 
21 III. 511 ; Ottowa v. People, 48 HI. 
233 ; Prescott ». City of Chicago, 60 
111. 121 ; People v. Brislin, 80 111. 
423; McAunich r. Mississippi, &c. 
B. R. Co., 20 Iowa, 338; State v. 
Squires, 26 Iowa, 340 ; Chiles v. Drake, 
2 Met. (Ky.) 146; Phillips v. Bridge 
Co., 2 Met. (Ky.) 222; Johnson u. Big- 
gins, 3 Met. (Ky.) 566; Louisville, 
&c. Co. V. Ballard, 2 Met. (Ky.) 165 ; 
Phillips V. Covington, &c. Co., 2 Met. 
(Ky.) 219 ; Chiles v. Monroe, 4 Met. 
(Ky.) 72; Hind v. Rice, 10 Bush, 
528 ; Cannon v. Hemphill, 7 Tex. 
184 ; Battle v. Howard, 13 Tex. 345 ; 
Robinson v. State, 15 Tex. 311 ; 
Antonio v. Gould, 34 Tex. 49 ; 
Ex parte Hogg, 36 Tex. 14 ; State 
V. Shadle, 41 Tex. 404; State v. 
McCracken, 42 Tex. 383 ; Laefon 
». Dufoe, 9 La. Ann. 329; State v. 
Harrison, 11 La. Ann. 722 ; Bosier 
». Steele, 13 La. Ann. 433 ; Williapis 
e. Payson, 14 La Ann. 7 ; Wisners v. 
Monroe, 25 La. Ann. 698; Whited 
B. Lewis, 25 La. Ann. 568 ; State 
». Lafayette County Court, 41 Mo. 
221 ; State ». Miller, 45 Mo. 495 ; 
Tuttle V. Strout, 7 Minn. 465 ; State 
V. Gut, 13 Minn. 341 ; Stuart v. Kin- 
sella, 14 Minn. 524 ; Mills v. Charle- 
ton, 29 Wis. 400; Evans v. Sharpe, 
29 Wis. 564 ; Single v. Supervisors 
of Marathon, 38 Wis. 363 ; People v. 



McCallum, 1 Neb. 182 ; Smails o. 
White, 4 Neb. 353 ; Cutlip v. The 
Sheriff, 3 W. Va. 588; Shields ». 
Bennett, 8 W. Va. 74 ; Tuscaloosa 
Bridge Co. v. Olmstead, 41 Ala. 9 ; 
Weaver v. Lapsely, 43 Ala. 224 ; 
Ex parta Upshaw, 45 Ala. 234; Lock- 
hart V. Troy, 48 Ala. 579 ; Walker ». 
State, 49 Ala. 329 ; Simpson v. 
Bailey, 3 Oreg. 515; Pope o. Phi- 
fer, 3 Heisk. 682 ; Cannon v, Mathes', 
8 Heisk. 504 ; State v. Newark, 34 
N. J. 264 ; Gifford v. R. R. Co., 10 
N. J. Eq. 171 ; Keller v. State, 11 
Md. 525 ; Parkinson v. State, 14 Md. 
184 ; Ryerson w. Utley, 16 Mich. 269 ; 
People V. Denahy, 20 Mich. 349 ; 
People V. Hurlbut, 24 Mich. 44 ; 
Kurtz i>. People, 33 Mich. 279 ; Dor- 
sey's Appeal, 72 Penn. St. 192 ; Alle- 
gheny County Home's Case, 77 Penn. 
St. 77 ; Morton v. Comptroller-Gen- 
eral, 4 S. C. N. 8. 430 ; State v. 
Gurney, 4 S. C. n. s. 520 ; Norman 
V. Curry, 27 Ark. 440 ; Division of 
Howard County, 15 Kan. 194 ; Com- 
monwealth V. Drewey, 15 Grat. 1. 

In Davis v. Woolnough, 9 Iowa, 
104, an act entitled " An act for 
revising and consolidating the laws 
incorporating the city of Dubuque, 
and to establish a city court therein," 
was held to express by its title but 
one object, which was, the revising 
and consolidating the laws incorporat- 
ing the city ; and the city court, not 
being an unusual tribunal in such a 
municipality, might be provided for 
by the act, whether mentioned in the 
title or not. " An act to enable the 
supervisors of the city and county of 
New York to raise money by tax," 
provided for raising money to pay 
judgments then existing, and also. 
any thereafter to be recovered; and 
it also contained the further pro- 
vision, llhat whenever the controller 
of the city should have reason to- 



180 



CONSTITUTIONAL LIMITATIONS. 



[OH. VI. 



[* 148] is limited * in its operation to private and local bills, it 
might be held that an act was not void for embracing two 
or more objects which were indicated by its title, provided one 
of them only was of a private and local nature. It has been held in 
New York that a local bill was not void because embracing general 
provisions also ; ^ and if they may constitutionally be embraced in 
the act, it is presumed they may also be constitutionally embraced 
in the title. But if the title to the act actually indicates, and the 
act itself actually embraces, two distinct objects, when the consti- 
tution says it shall embrace but one, the whole act must be treated 

sessed by the company. The money 
arisiilg from the sale, after paying 
costs, was to be applied, first, to the 
payment of a certain judgment, and 
then to other liens according to pri- 
ority ; and the surplus, if any, was 
to be divided ratably among the other 
creditors, and then if there should be 
an overplus, it was to be divided 
ratably among the then stockholders. 
By the second section of the act, it 
was declared that the purchaser or 
purchasers should have the right< to 
sell and distribute stock to the full 
amount which was authorized by the 
act of incorporation, and the several 
amendments thereto ; and to appoint 
an election, choose directors, and 
organize a corporation anew, with 
the same powers as the existing 
company. There was then a proviso, 
that nothing in the act should impair 
or affect the subscriptions for new 
stock, or the obligations or liabilities 
of the company which had been made 
or incurred in the extension of the 
road from Lockport to Rochester, &o. 
The whole act was held to be consti- 
tutional. Mosier v. HOton, 15 Barb. 
657. And see Mills v. Charleton, 29 
Wis. 400, — a very liberal case ; Er- 
linger v. Boneau, 51 111. 94 ; State v. 
Newark, 34 N. J. 236 ; Smith v. Com- 
monwealth, 8 Bush, 108; State v. 
St. Louis Cathedral, 23 La. Ann. 720 ; 
Simpson v. Bailey, 3 Oreg. 515 ; Neif- 
ing u. Pontiac, 56 111. 172. 

1 People V. McCann, 16 N . Y. 58. 



believe that any judgment then of 
record or thereafter obtained had 
been obtained by collusion, or was 
founded in fraud, he should take the 
proper and necessary means to open 
and reverse the same, &c. This pro- 
vision was held constitutional, as 
properly connected with the subject 
indicated by the title, and necessary 
to confine the payments of the tax to 
the objects for which the moneys 
were intended to be raised. Sharp 
V. Mayor, &c. of New York, 31 Barb. 
572. In O'Leary ». Cook Co., 28 111. 
534, it was held that a clause in an 
act incorporating a college, prohibit- 
ing the sale of ardent spirits within 
a distance of four miles, was so ger- 
mane to the primary object of the 
charter as to be properly included 
within it. By the first section of 
" an act for the relief of the creditors 
of the Lockport and Niagara Falls 
Kailroad Company," it was made the 
duty of the president of the corpora- 
tion, or one of the directors to be 
appointed by the president, to adver- 
tise and sell the real and personal 
estate, including the franchise of the 
company, at public auction to the 
highest bidder. It was then declared 
that the sale should be absolute, and 
that it should vest in the purchaser 
or purchasers of the, property, real or 
personal, of the company, all the 
franchise, rights, and privileges of 
the corporation, as fully and as abso- 
lutely as the same were then pos- 



CH. VI.] OF THE ENACTMENT OP LAWS. 181 

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. The effect where ike act is broader than the title. But if the 
act is broader than the title, it may happen that one part of it can 
stand because indicated. by the title, while as to the object not 
indicated by the title it must fail. Some of the State constitutions, 
it will be perceived, have declared that this shall be the rule ; but 
the declaration was unnecessary ; as the general rule, that so milch 
of the act as is not in conflict with the constitution must be sus- 
tained, would have required the same declaration from the courts. 
If by striking from the act all that relates to the object not 
indicated by the title, that which is left is complete in itself, 
sensible, capable of being executed, and wholly independent of 
that which is rejected, it must be sustained as constitu- 
tional. * The principal questions in each case will there- [* 149] 
fore be, whether the act is in truth broader than the title ; 
and if so, then whether the other objects in the act are so intimately 
connected with the one indicated by the title that the portion of the 
act relating to them cannot be rejected, and leave a complete and 
sensible enactment which is capable of being executed.^ 

As the legislature may make the title to an act as restrictive as 
they please, it is obvious that they may sometimes so frame it as 
to preclude many matters being included in the act which might 
with entire propriety have been embraced in one enactment with 
the matters indicated by the title, but which must now be excluded 
because the title has been made unnecessarily restrictive. The 
courts cannot enlarge the scope of the title ; they are vested with 
no dispensing power ; the constitution has made the title the 
conclusive index to the legislative Intent as to what shall have 
operation ; it is no answer to say that the title might have been 
made more comprehensive, if in fact the legislature have not seen 
fit to make it so. Thus, " an act concerning promissory notes and 
bills of exchange " provided that all promissory notes, bills of 

1 Antonio v. Gould, 34 Tex. 49; rectly, to the same subject, have a 
State V. McCracken, 42 Tex. ,383. natural connection, and are not for- 
All the cases recognize this doctrine. eign to the subject expressed in the 

2 People V. Briggs, 50 N. Y. 566. title." Phillips v. Bridge Co., 2 Met. 
" None of the provisions of a statute (Ky.) 222, approved. Smith v. Corn- 
should be regarded as unconstitutional monwealth, 8 Bush, 112. See Ex 
where they all relate, directly or indi- parte Upshaw, 45 Ala. 234. 



182 CONSTITUTIONAL LIMITATIONS. [CH. VI. 

exchange, or other instruments in writing, for the payment of money, 
or for the delivery of specific articles, or to convey property, or 
to perform any other stipulation therein mentioned, should be 
negotiable, and assignees of the same might sue thereon in their 
own names. It was held that this act was void, as to all the 
instruments mentioned therein except promissory notes and 
bills of exchange ; ^ though it is obvious that it would have 
been easy to frame a title to the act which would have embraced 
them all, and which would have been unobjectionable. I has 
also been held that an act for the preservation of the Musk gon 
River Improvement could not lawfully provide for the levy and' 
collection of tolls for the payment of the expense of constructing 
the improvement, as the operation of the act was carefully limited 
by its title to the future.^ So also it has been held that " an act 
to limit the numbers of grand jurors, and to point out the mode of 
their selection, defining their jurisdiction, and repealing all laws 
inconsistent therewith," could not constitutionally contain pro- 
visions which should authorize a defendant in a criminal case, on 
a trial for any offence, to be found guilty of any lesser 
[* 150] offence necessarily * included therein.^ These cases must 
suffice upon this point ; though the cases before referred 
to will furnish many similar illustrations. 

In all we have said upon this subject we have assumed the con- 
stitutional provision to be mandatory. Such has been the view of 
the courts almost without exception. In California, however, a 
different view has been taken, the court saying : " We regard this 
section of the constitution as merely directory ; and, if we were 
inclined td a different opinion, would be careful how we lent our- 
selves 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 

' Mewherter v. Price, 11 Ind. 199. that if an act embraces two objects, 

See also State ». Young, 47 Ind. only one of which is specified in the 

150 ; Jones v. Thompson, 12 Bush, title, the whole is void ; but this is 

394 ; Rushing v. Sebree, 12 Bush, 198 ; opposed to the authorities generally. 
State V. Kinsella, 14 Minn. 524. » Foley v. State, 9 Ind. 363 ; Gil- 

2 Ryerson v. Utley, 16 Mich. 289. lespie v. State, 9 Ind. 380. See also 

See further Weaver v. Lapsley, 43 Indiana Cent. Railroad Co. ». Potts, 

Ala. 229 ; Tuscaloosa Bridge Co. ». 7 Ind. 681 ; State v. Squires, 26 Iowa, 

Olmstead, 41 Ala. 9 ; Stuart ». Kin- 340; State «. Lafayette Co. Court, 41 

sella,, 14 Minn. 524. In Cutlip v. Mo. 39; People v. Denahy, 20 Mich. 

Sheriff, 3 W. Va. 588, it was held 349. 



CH. VI.] OF THE ENACTMENT OP LAWS. 183 

under the constitution seems to have considered this section as 
directory ; and almost every act of that and the subsequent ses- 
sions would be obnoxious to this objection. The contemporaneous 
exposition of the first legislature, adopted or acquiesced in by 
every subsequent legislature, and tacitly assented to by the courts, 
taken in connection with the fact that rights have grown up under 
it, so that it has become a rule of property, must govern our 
decision." ^ Similar views have also been expressed in the State 
of Ohio.2 These cases, and especially what is said by the Califor- 
nia court, bring forcibly before our minds a fact, which cannot be 
'kept out of view in considering this subject, and which has a very 
important bearing upon the precise point which these decisions 
cover. The fact is this : that whatever constitutional provision can 
be looked upon as directory merely is very likely to be treated by 
the legislature as if it was devoid even of moral obligation, and to 
be therefore habitually disregarded. To say that a provision is 
directory seems, with many persons, to be equivalent to saying 
that it is not law at all. That this ought not to be so must be con- 
ceded ; 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 [* 151] 
inflicted by a strict adherence to the law, so great as that 
which is done by the habitual disregard, by any department of 
the government, of a plain requirement of that instrument from 
which it derives its authority, and which ought, therefore, to 
be scrupulously observed and obeyed. Upon this subject we 
need only refer here to what we have said concerning it in an- 
other place.^ 

Amendatory Statutes. 

' It has also been deemed important, in some of the States, to 
provide by their constitutions, that " no act shall ever be revised 
or amended by mere reference to its title ; but the act revised or 

■Washington v. Murray, 4 Cal. 475; Km u. Nicholson, 6 Ohio, n. 8. 
388. 177. 

2 Miller v. State, 3 Ohio, n. s. » Ante, p. *74. 



184 CONSTITTTTIONAL LIMITATIONS. [CH. VI. 

section amended shall be set forth and published at full length." ? 
Upon this provision an important query arises. Does it mean 
that the act or section revised or amended shall be set forth and 
published at full length as it stood before, or does it mean only 
that it shall be set forth and published at full length as amended 
or revised ? Upon this question perhaps a consideration of the 
purpose of the provision may throw some light. " The mischief 
designed to be remedied was the enactment of amendatory stat- 
utes in terms so blind that legislators themselves were some- 
times deceived in regard to their effects, and the public, from the 
difSculty in making the necessary examination and comparison' 
failed to become apprised of the changes made in the laws. An 
amendatory act which purported only to insert certain words, or to 
substitute one phrase for another in an act or section which was 
only referred to, but not published, was well calculated to 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 the 

constitution requires the old law to be set forth and pub- 

1 This is the provision as it is In Texas it appears to be held that 
found in the Constitutions of Indiana, the legislature may repeal a definite 
Nevada, Oregon^ Texas, and Virginia, portion of a section ■without the re- 
in Kansasi Ohio, Michigan, Louis- enactment of the section with such por- 
iana, Wisconsin, Missouri, and Mary- tion omitted. Chambers v. State, 25 
land there are provisions of similar Tex. 307. But qucere of this. Any 
import. In Tennessee the provision portion of a section amended which 
is : " All acts which revive, repeal, is not contained in the amendatory 
or amend former laws, shall recite, in section as set forth and published is 
their caption or otherwise, the title or repealed. State v. Ingersoll, 17 Wif^. 
substance of the law repealed, revived, 631. Further on this subject see 
or amended." Art. 1, § 17. The Blakemore v. Dolan, 50 Ind. 194; 
provision in Nebraska (Const, of People v. Wright, 70 lU. 388. 
1875) is peculiar. " No law shall be ^ People v. Mahaney, 13 Mich. 497. 
amended unless the new act contains See Mok v. Detroit, &c. Association, 
the section or sections so amended, 30 Mich. 511. 
and the section or sections so amended 
shall be repealed." Art. 3, § 11. 



CH. VT.] 



OP THE ENACTMENT OF LAWS. 



185 



lished ; ^ and the courts of Indiana, assuming the provision in their 
own constitution to be taken from that of Louisiana after the deci- 
sions refeiffed to had been made, at one time adopted and followed 
them as precedents.^ It is believed^: however, that the general 
understanding of the provision in question is different, and that 
it is fuUy complied with in letter and spirit, if the act or section 
revised or amended is set forth and published as revised or amended, 
and that any thing more only tends to render the statute unneces- 
sarily cumbrous.* It should be observed that statutes 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 implication 
are not favored ; and the repugnancy between two statutes should 
be very clear to warrant a court in holding that the later in time 
repeals the other, when it does not in terms purport to do so.^ 
This rule has peculiar force in the case of laws of special and 
local application, which are never to -be deemed repealed by 
general legislation except upon the most unequivocal manifesta- 
tion of intent to that effect.® 



1 Walker v. Caldwell, 4 La. Ann. 
297; Heirs of Duverge v. Salter, 5 
La. Ann. 94. Contra, Shields v. Ben- 
nett, 8 W. Va. 74. 

^ Langdon v. Applegate, 5 Ind. 
327; Rogers v. State, 6 Ind. 31. 
These cases were overruled in Green- 
castle, &c. Co. V. State, 28 Ind. 382. 

» See Tuscaloosa Bridge Co. v. 
Olmstead, 41 Ala. 9; People v. Pritoh- 
ard, 21 Mich. 236; People v. Mc- 
Callum, 1 Neb. 182; State ». Draper, 
47 Mo. 29; Booneville v. Trigg, 46 
Mo. 288. Under such a constitutional 
provision where a statute simply re- 
peals others, it is not necessary to set 
them out. Falconer v. Robinson, 46 
Ala. 340. Compare Bird v. Wasco 
County, 3 Oreg. 282. 

* Speucer v. State, 5 Ind. 41; 
Branham v. Lange, 16 Ind. 497; Peo- 
ple V. Mahaney, 13 Mich. 481 ; Leh- 
man V. McBride, 15 Ohio, n. s. 593. 

^ See cases cited in last note; 
also Naylor v. Field, 29 N. J. 287; 
State 0. Berry, 12 Iowa, 58; Attorney- 
General w. Brown,! Wis. 525; Dodge 



V. Gridley, 10 Ohio, 177; Hirn v. 
State, 1 Ohio, n. s. 20; New Orleans 
V. Southern Bank, 15 La. Ann. 89 ; 
Blain v. Bailey, 25 Ind. 165; Water 
Works Co. V. Burkhart, 41 Ind. 364; 
Swann v. Buck, 40 Miss. 268; Davis 
V. State, 7 Md. 151; State v. The 
Treasurer, 41 Mo. 16; Somerset and 
Stoystown Road, 74 Penn. St. 61; 
McCool ». Smith, 1 Black, 459; State 
V. Cain, 8 W. Va. 720 ; Fleischner v. 
Chadwick, 5 Oreg. 152 ; Covington v. 
East St. Louis, 78 111. 548 ; Iverson v. 
State, 52 Ala. 170; Gohen ». Texas 
Pacific R. R. Co., 2 Woods, 346; 
State V. Commissioners, 37 N. J. 240; 
Attorney- General v. Railroad Com- 
panies, 35 Wis. 425 ; Rounds v. 
Waymart, 81 Penn. St. 395; Hender- 
son's Tobacco, 11 Wall. 652. 

6 Cass V. Dillon, 2 Ohio, n. s. 607 ; 
Fosdick ». Perrysburg, 14 Ohio, N. s. 
472; People ». Quigg, 59 N. Y. 83; 
Clark V. Davenport, 14 Iowa, 494; 
bleson w. Green Bay, &c. R. R. Co., 
36 Wis. 383 ; Cdvington v. East St. 
Louis, 78 ni. 548. 



186 CONSTITUTIONAL LIMITATIONS. [CH. VI. 

It was a parliamentary rule that a statute should not be 
repealed at the same session of its enactment, unless a clause 
permitting it was inserted in the statute itself ; ^ but this rule 
did not apply to repeals by implication,^ and it is possibly not 
recognized in this country at all, except where it is incorporated 
in the State constitution.^ 

Signing of Bills. 

When a bill has passed the two houses, it is engrossed for the 
signatures of the presiding officers. This is a constitutional 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 component part 

of the legislature, the bill is then presented to him for 
his approval. 

Approval of Laws. 

The qualified veto power of the governor is regulated by 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 
of laws, this is to be understood as a full day of twenty-four 
hours, before the hour of the final adjournment.* It has also 

1 Dwarris on Statutes, "Vol. I. p. S. C. n. s. 150 ; Legg v. Annapolis, 

269; Sedgw. on Stat, and Const. 42 Md. 203 ; Brady w. West, 50 Miss. 

Law, 122; Smith on Stat, and Const. 68. But a clerical error that would 

Construction, 908. not mislead is to be overlooked. Peo- 

' Ibid. And see Spencer v. State, pie v. Supervisor of Onondaga, 16 

5 Ind. 41. Mich. 254. Compare Smith v. Hoyt, 

* Spencer ». State, 5 Ind. 41 ; 14 Wis. 252, where the error was in 
Attorney-General v. Brown, 1 Wis. publication. 

513; Smith on Stat, and Const. Con- ^ Speer v. Plank B.oad Co., 22 

Btruction, 908; Mobile & Ohio Rail- Penn. St. 376. 

road Co. v. State, 29 Ala. 573. « Hyde v. White, 24 Tex. 137. 

* Moody V. State, 48 Ala. 115 ; The five days allowed in New Hamp- 
B. c. 17 Am. Rep. 28. The bill as shire for the governor to return bills 
signed must be the same as it passed which have not received his assent, 
the two houses. People v. Piatt, 2 include days on which the legislature 



CH. VI.] 



OF THE ENACTMENT OF LAWS. 



187 



been held that, in the approval of laws, the governor is a compo- 
nent part of the legislature, and that unless the constitution allovirs 
further time for the purpose, he must exercise his power of ap- 
proval before the two houses ad ourn, 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 returned by the governor within ten days, Sundays excepted, 
after it shall have been presented to him, the same shall be a law, 
in like manner as if he had signed it, unless the legislature shall, 
by their adjournment, prevent its return, in which case it shall 
not be a law," it was held that the governor might sign a 
bill after the adjournment, at any time within the ten days.^ 
The governor's approval is not complete until the bill has 

have been approved before the actual 
adjournment, it was competent to 
show by parol evidence that the actual 
approval was not until the next day. 
In support of this ruling, People v. 
Purdy, 2 Hill, 31, was cited, where it 
was held that the court might go 
behind the statute-book and- inquire 
whether an act to which a two-thirds 
vote was essential had constitutionally 
passed. That, however, would not be 
in direct contradiction of the record, 
but it would be inquiring into a fact 
concerning which the statute was 
silent, and other records supplied the 
neefled information. 

2 Stinson v. Smith, 8 Minn. 366. 

« People ». Bowen, 30 Barb. 24. 
Where on the tenth day the governor 
sent a bill with his objections to the 
house with which it originated, but 
the messenger, finding the house had 
adjourned for the day, returned it to 
the governor, who retained it, it was 
held that to prevent the bill becomihg 
-a law it should have been left with 
the proper officer pf the house instead 
of being retained by the governor. 
Harpending v. Haight, 39 Cal. 189. 



is not in session, if it has not finally 
adjourned. Opinions of Judges, 45 
N. H. 607. But the day of presenting 
the bill to the governor should be 
excluded. Opinions of Judges, 45 
N. H. 607; Iron Mountain Co. v. 
Haight, 39k Cal. 540. As to the 
power of the governor, derived from 
long usage, to approve and sign bills 
after the adjournment of the legisla- 
ture, see Solomon v. Cartersville, 41 
Geo. 157. 

Neither house can, without the 
consent of the other, recall a bill 
after its transmission to the governor. 
People V. Devlin, 33 N. Y. 269. 

The delivery of a bill passed by 
the two houses to the secretary of the 
commonwealth according to custom, 
is not a presentation to the. governor 
for his approval, within the meaning 
of the constitutional clause which lim- 
its him to a certain number of days 
after the presentation of the bill to 
veto it. Opinions of the Justices, 99 
Mass. 636. 

1 Fowler v. Peirce, 2 Cal. 165. 
The court also held in this case. that, 
notwithstanding an act purported to 



188 



CONSTITUTIONAL LIMITATIONS. 



[CH. VI. 



[* 154] passed beyond his control * by the constitutional and 
customary mode of legislation ; and at any time prior to 
that he may reconsider and retract any approval previously made.^ 
His disapproval of a bill is communicated to the house in which 
it originated, with his reasons ; and it is there reconsidered, and 
may be again passed over the veto by such vote as the constitu- 
tion prescribes.^ 



1 People V. Hatch, 19 HI. 283. An 
aot apportioning the representatives 
'was passed by the legislature, and 
transmitted to the governor, who 
signed his approval thereon by mis- 
take, supposing at the time that he 
■was subscribing one of several other 
bills then lying before him, and claim- 
ing his official attention ; his private 
Secretary thereupon reported the bill 
to the legislature as approved, not by 
the special direction of the governor, 
nor with his knowledge or special 
assent, but merely in his usual routine 
of customary duty, the governor not 
being conscious that he had placed 
his signature to the bill until after 
information was brought to him of 
its having been reported approved; 
whereupon he sent a message to the 
speaker of the house to which it was 
reported, stating that it had been 
inadvertently signed and not approved, 
and on the same day completed a veto 
message of the bill which was par- 
tially written at the time of signing 
his approval, and transmitted it to the 
house where the bUl originated, hav- 
ing first erased his signature and 
approval. It was held that the bill 
had not become a law. It had never 
passed out of the governor's posses- 
sion after it was .received by him until 
after he had erased his signature and 
approval, and the court was of opin- 
ion that it did not pass from his con- 
trol until it had become a law by the 
lapse, of ten days under the constitu- 
tion, or by his depositing it with his 
approval in the office of the secretary 
of state. It had long been the prac- 
tice of the governor to report, for- 
merly through the secretary of state, 



but recently through his private secre- 
tary, to the house where bills orig- 
inated, his approval of them ; but this 
was only a matter of formal courtesy, 
and not a proceeding necessary to the 
making or imparting vitality to the 
law. By it no act could become a 
law which vrithout it would not be a 
law. Had the governor returned the 
bill itself to the house, with his mes- 
sage of approval, it would have passed 
beyond his control, and the approval 
could not have been retracted, unless 
the bill had -been withdrawn by con- 
sent of the house ; and the same result 
would have followed his filing the bill 
with the secretary of state with his 
approval subscribed. 

The Constitution of Indiana pro- 
vides, art. 5, § 14, that, i,' if any bill 
shall not be returned by th^ governor 
within three days, Sundays excepted, 
after it shall have been presented to 
him, it shall be a law without his 
signature, unless the general adjourn- 
ment shall prevent its return; in 
which case it shall be a law unless the 
governor, within five days next after 
the adjournment, shall file such bill 
with his objections thereto, in the 
office of the secretary of state," &c. 
Under this provision it was held that 
where th.e governor, on the day of the 
final adjournment of the legislature, 
and after the adjournment, filed a bill 
received that day, in the office of the 
secretary of state, without approval 
or objections thereto, it thereby be- 
came a law, and he could not file 
objections afterwards. Tarlton v. 
Peggs, 18 Ind. 24. 

^ A bill 'which, as approved and 
signed, differs in important particu- 



OH. VI.] 



OF THE ENACTMENT OF LAWS. 



189 



Other Powers of the G-ovemor. 



[* 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 information 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 legislature in extra session whenever extraor- 
dinary occasion seems to have arisen; but their powers when 
convened 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.^ 
An exception to this statement exists in those States where, by 
the express terms of the constitution, it is provided that when 
convened in extra session the legislature shall consider no subject 



lars frbmthe one signed, is no law. 
Jones V. Hutchinson, 43 Ala. 721. 

If the governor sends back a bill 
which has been submitted to him, 
stating that he cannot act upon it 
because of some supposed informality 
in its passage, this is in effect an 
objection to the bill, and it can only 
become a law by further action of the 
legislature, even though the governor 
may have been mistaken as to the 
supposed informality. Birdsall o. Car- 
rick, 3 Nev. 154. 

In practice the veto power, al- 
though very great and exceedingly 
important in this country, is obsolete 
in Great Britain, and no king now 
ventures to resort to it. As the Min- 
istry must at all times be in accord 
with the House of Commons, — except 
where the responsibility is taken of 
dissolving the Tarliament and appeal- 
ing to the people, — it must follow 
that any bill which the two houses 
have passed must be approved by the 
monarch. The approval has become 
a matter of course, and the governing 
power in Great Britain is substantially 
in the House of Commons. 1 Bl. 
Com. 184-185, and notes. 



J The Constitution of Iowa, art. 4, 
§ 11, provides that the governor 
" may, on extraordinary occasions, 
convene the General Assembly by 
proclamation, and shall state to both 
houses, when assembled, the purpose 
for which they have been convened." 
It was held in Morford v. Unger, 
8 Iowa, 82, that the General Assem- 
bly, when thus convened, were not 
confined in their legislation to the 
purposes specified in the message. 
" When lawfully convened, whether 
in virtue of the provision in the 
constitution or the governor's proc- 
lamation, it is the ' General As- 
sembly' of the State, in which the 
full and exclusive legislative author- 
ity of the State is vested. Where 
its business at such session is not 
restricted by some constitutional pro- 
vision, the General Assembly may 
enact any law at a special or extra 
session that it might at a regular 
session. Its powers, not being de- 
rived froni the governor's proclama- 
tion, are not confined to the special 
purpose for which it may have been 
convened by him." 



190 



COKSTITtJTIONAL LIMITATIONS. 



[CH. VI. 



except that for which they were specially called together, or which 
may have been submitted to them by special" message of the gov- 



ernor.' 



When Acts are to take Effect. 

The old rule was that statutes, unless otherwise ordered, took 
effect from the first day of the session on which they were 
[* 156] passed ; * * but this rule was purely arbitrary, based upon 
no good reason, and frequently working very serious in- 
justice. The present rule is that an act takes effect from the 
time when the formalities of enactment are actually complete 
under the constitution, unless it is otherwise ordered, or unless 
there is some constitutional or statutory rule on the subject which 
prescribes otherwise.^ By the Constitution of Mississippi,* " no 
law of a general nature, unless otherwise provided, shall be en- 
forced until sixty 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 
case of emergency (which emergency shall be expressed in the 



> Provisions to this effect will be 
found in the Constitutions of Illinois, 
Michigan, Missouri, and Nevada; per- 
haps in some others. 

" 1 Lev. 91 ; Latless v. Holmes, 4 
T. R. 660; Smith o. Smith, Mart. 
(N. C.) 26; Hamlet v. Taylor, 5 
Jones, L. 36. This is changed by 33 
Geo. HI. e. 13, by which statutes 
since passed take effect from the day 
when they receive the royal assent, 
unless otherwise ordered therein. 

' Mathews v. Zane, 7 Wheat. 164; 
Rathbone v. Bradford, 1 Ala. 312; 
Branch Bank of Mobile v. Murphy, 8 
Ala. 119; Heard v. Heard, 8 Geo. 
380; Goodsell u. Boynton, 2 111. 
555; Dyer». State, Meigs, 237; Par- 
kinson V. State, 14 Md. 184. An 
early Virginia case decides that " from 
and after the passing of this act" 
would exclude the day on which it 
was passed. King v. Moore, Jeffer- 
son, 9. On the other hand,' it is held 
in some cases that a statute which 
takes effect from and after its passage, 



has relation to the first moment of 
that day. In re Welman, 20 Vt. 653 ; 
Mallory ». Hiles, 4 Met. (Ky ) 53 ; 
Wood ». Fort, 42 Ala. 641. Others 
hold that it has effect from the mo- 
ment of its approval by the governor. 
People V. Clark, 1 Cal. 406. See 
In re Wynne, Chase, Dec. 227. 

* Art. 7, § 6. 

« Art. 3, § 23. The intention that 
an act shall take effect sooner must 
be expressed clearly and unequivo- 
cally; it is not to be gathered by 
intendment and inference. Wheeler 
V. Chubbuok, 16 111. 361. See Hen- 
drickson v. Hendrickson, 7 Ind. 13. 

Where an act is by its express 
terms to take effect after publication 
in a specified newspaper, every one is 
bound to take notice of this fact; and 
if before such publication negotiable 
paper is issued under it, the pur- 
chasers of such paper can acquire no 
rights thereby. McClure v. Oxford, 
94 U. S. Rep. 429 ; following George 
V. Oxford, 16 Kan. 72. 



CH. VI.] OF THE ENACTMENT OP LAWS. 191 

preamble or body of the act) the General Assembly shall, by a 
vote of two-thirds of all the members elected to each house, oth- 
erwise direct. By the Constitution of Michigan,^ no public act 
shall take effect, or be in force, until the expiration of ninety days 
from the end of the session at which the same is passed, unless 
the legislature shall otherwise direct by a two-thirds vote of the 
members elected, to each house. These and similar provisions are 
designed to secure, as far as possible, the public promulgation of 
the law before parties are bound to take notice of and act under 
it, and to obviate the injustice of a rule which should compel 
parties at their peril to know and obey a law of which, in the 
nature of things, they could not possibly have heard ; they give 
to all parties the full constitutional period in which to become 
acquainted with the terms of the statutes which are passed, 
except when the legislature has otherwise directed ; and no one 
is bound to govern his conduct by the new law until that period 
has elapsed.^ And the fact that, by the terms of the statute, 
something is to be done under it before the expiration of the con- 
stitutional period for it to take effect, will not amount to a legis- 
lative direction that the act shall take effect at that time, if the 
act itself is silent as to the period when it shall go into opera- 
tion.* 

* The Constitution of Indiana provides* that " no act [* 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 emergency ; which emergency shall, be declared 

1 Art. 4, § 20. time it should take effect, and it waa 

2 Price V. Hopkin, 13 Mich 318. therefore held that it would not take 
See, however, Smith v. Morrison, 22 effect until sixty days from the end of 
Pick. 430 ; Stine v. Bennett, 13 Minn, the session, and a vote of the electors 
153. Compare State v. Bond, 4 Jones, taken on the 17th of March was void. 
L. 9. Where a law has failed to take See also Rice v. Kuddiman, 10 Mich, 
effect for want of publication, all 125; Rogers v. Vass, 6 Iowa, 405. 
parties are chargeable with notice of And it was also held in the case first 
that fact. Clark v. Janesville, 10 named, and in Wheeler v. Chubbuck, 
YVig. 136. 16, 111. 361, that " the direction must 

« Supervisors of Iroquois Co. v. be made in a clear, distinct, and un- 

Keady, 34 111. 293. An act for the equivocal provision, and could not be 

removal of a county seat provided helped out by any sort of intendment 

for taking the vote of the electors of or implication," and that the act 

the county upon it on the 17th of must all take effect at once, and not 

March, 1863, at which time the legis- by piecemeal, 
lature had not adjourned. It was not * Art. 4, § 28. 
expressly declared in the act at what 



192 CONSTITTTTIONAL LIMITATIONS. [CH. VI. 

in the preamble, or in the body of the law." Unless the emer- 
gency is thus declared, it is plain that the act cannot take earlier 
effect.^ But the courts will not inquire too nicely into the mode 
of publication. If the laws are distributed in bound volumes, in 
a manner and shape not substantially contrary to the statute on 
that subject^ and by the proper authority, it will be held suffi- 
cient, notwithstanding a failure to comply with some of the direc- 
tory provisions of the statute on the subject of publicatioui^ 

The Constitution of Wisconsin, 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 was to be regarded as published although 
printed in the volume of private laws, instead of the volume of 
public laws as the statute of the State would require.* But an 
unauthorized publication — as, for example, of an act for the in- 
corporation of a city in two local papers instead of the State 
paper — is no publication in the constitutional sense.^ 'The Con- 
stitution of Louisiana does not in terms require laws to be pub- 
lished, though it provides that when they are promulgated, it 
shall be in the English language. There is a provision in the 
Civil Code that all laws shall be considered promulgated at the 
place where the State gazette is published, the day after the pub- 

1 Carpenter v. Montgomery, 7 Under this provision it has been de- 
Blackf. 415 ; Hendrickson v. Hen- cided that a law establishing a munic- 
drickson, 7 Ind. 13 ; Mark v. State, ipal court in a city is a general law. 
15 Ind. 98. The legislature must Matter of Boyle, supra. See Eitel v. 
necessarily in these cases be judge of State, 33 Ind. 201. Also a statute 
the existence of the emergency. Car- for the removal of a county seat, 
penter v. Montgomery, supra. The State v. Lean, 9 Wis. 279. Also a 
Constitution of Tennessee provides statute incorporating a municipality, 
that "No law of a general nature or authorizing it to issue bonds in aid 
shall take effect until forty days after of a railroad. Clark v. Janesville, 
its passage, unless the same, or the ■ 10 Wis, 136. And see Scott v. Clark, 
caption, shall state that the public 1 Iowa, 70. An inaccuracy in the 
weKare requires that it should take publication of a statute, which does 
effect sooner." Art. 1, § 20. not change its substance or legal effect, 

2 State V. Bailey, 16 Ind. 46. See will not invalidate the publication, 
further, as to this constitutional pro- Smith v. Hoyt, 14 Wis. 252. 
vision, Jones v. Cavins, 4 Ind. 305. ^ Clark v. Janesville, 10 Wis. 136. 

» Art. 7, § 21. See, further, MiUs v. Jefferson, 20 

* Matter of Boyle, 9 Wis. 264. Wis. 50. 



CH. VI.] OF THE ENACTMENT OF LAWS. 193 

lication of such laws in the State gazette, and in all other parts 
of the State thirty days after the publication. With these pro- 
visions in view, it has been held that " the promulgation of laws 
is an executive function. The mode of promulgation may be 
prescribed by the legislature, and differs in different countries and 
at different times. . . . Promulgation is the extrinsic act which 
gives a law, perfect in itself, executory force. Unless the law 
prescribes that it shall be executory from its passage, or from a 
certain date, it is presumed to be executory only from its promul- 
gation." ^ But it is competent for the legislature to provide in 
an act that it shall take effect from and after its passage ; and the 
act will have operation accordingly, tho'Ugh not published in the 
official gazette.^ In Pennsylvania, whose constitution then in 
force also failed to require publication of laws, the publication 
was nevertheless held to be necessary before the act could come 
into operation ; but, as the doings of the legislature were public, 
and the journals published regularly, it was held that every en- 
actment 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] 
the General Assembly, passed at a regular session, of a 
public nature, shall take effect until the fourth day of July next 
after the passage thereof. Laws passed at a special session shall 
take effect ninety days after the adjournment of the General 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 leg- 
islature to confer upon the governor the discretionary power which 
the constitution gives to that body, to fix an earlier day for the 
law to take effect.^ 

1 State 0. Ellis, 17 La. Ann. 390, 432. A joint resolution of a general 
392. nature requires the same publication 

2 State ». Judge, 14 La. Ann. 486 ; as any other law. State v. School 
Thomas v. Scott, 23 La. Ann. 689. Board Fund, 4 Kan. 261. 

In Maryland a similar conclusion is' * Art. 3, §26. See Hunt ». Murray, 
reached. Parkinson v. State, 14 Md. 17 Iowa, 313. 

184_ 6 Scott 0. Clark, 1 Iowa, 70; Pilkey 

« Petermano. Huling, 31 Penn. St. v. Gleason, 1 Iowa, 522. 

IS 



194 CONSTITUTIONAL LIMITATIONS. [CH. VH. 



[*159] * CHAPTER VII. 

OF THE CIECUMSTANCES UNDER WHICH A LEGISLATIVB ENACT- 
MENT MAT BE DECLARED UNCONSTITUTIONAL. 

We have now examiued somewhat briefly the legislative power 
of the State, and the bounds which expressly or by implication 
are set to it, and also some of the conditions necessary to its proper 
and valid exercise. In so doing it has been made apparent that, 
under some circumstances, it may become the duty of the courts 
to declare that what the legislature has assumed to enact is void, 
either from want of constitutional power to enact it, or because 
the constitutional forms or conditions 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 precau- 
tions 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 official oath decline the responsibility. The legislative 
and judicial are co-ordinate departments of the government, of 
equal dignity; each is alike supreme in the exercise of its proper 
functions, and cannot directly or indirectly, while acting within 
the limits of its authority, be subjected to the control or super- 
vision of the other, without an unwarrantable assumption by that 
other of power which, by the constitution, is not conferred upon 
it. The constitution apportions the powers of government, but it 
does not make any one of the three departments subordinate to 
another, when exercising the trust committed to it.^ The courts 
may declare legislative enactments unconstitutional and void in 

1 Bates V. Kimball, 2 Chip. 77; 1 H. &J. 236; Hawkins ». Governor, 
Bailey ». Philadelphia, &c. R. B,. Co., 1 Ark. 570; People v. Governor, 29 
4 Harr. 402; Whittington v. Polk, Mich. 320; s. c. 18 Am. Kep. 89. 



CH. Vn.] DECLARING STATUTES UNCONSTITUTIONAL. 195 

some cases, but not because the judicial power is superior in 
degree or dignity to the legislative. Being required to declare 
what the law is in the cases which come before them, they must 
enforce the constitution as the paramount law, whenever 
a 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 high 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 representatives 
expressed in any law." ^ 

Nevertheless, in declaring a law unconstitutional, a court must 
necessarily cover the same ground which has already been cov- 
ered by the legislative department in deciding upon Che propriety 
of enacting the law, and they must indirectly overrule the deci- 
sion of that co-ordinate department. The task is therefore a 
delicate one, and only to be entered upon with reluctance and 
hesitation. It is a solemn act in any case to declare that that 
body of men to whom the people have committed the sovereign 
function of making the laws for the commonwealth, have 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 
persistently denied, it is now generally agreed that the courts 
cannot properly decline, and in its performance they seldom fail 

1 Rice V. State, 7Iiid. 334 ; Blood- " Lindsay ». Commissioners, &o.,. 
goodt'. Mohawk and Hudson Railroad 2 Bay, 61. 
Co., 18 Wend. 53. 



196 



CONSTITUTIONAL LIMITATIONS. 



[CH. vn. 



of proper support if they proceed with due caution and circum- 
spection, and under a proper sense as well of their own respon- 
sibilitj', as of the respect due to the action and judgment of the 
law-makers.-' 



1 There are at least two cases in 
American judicial history ■where 
judges have been impeached as crim- 
inals for refusing to enforce uncon- 
stitutional enactments. One of these 
— the case of Trevett v. Weedon, 
decided by the Superior Court of 
Rhode Island in 1786 — is particularly 
interesting as being the first case in 
which a legislative enactment was 
declared unconstitutional and void on 
the ground of incompatibility with 
the State constitution. Mr. Arnold, 
in his History of Rhode Island, Vol. II. 
c. 24, gives an account of this case; 
and the printed brief in opposition to 
the law, and in defence of the im- 
peached judges, is in possession of the 
present writer. The act in question 
was one which imposed a heavy pen- 
alty on any one who should refuse to 
receive on th^ same terms as specie 
the bills of a bank chartered by the 
State, or who should in any way dis- 
courage the circulation of such bills. 
The penalty was made collectible on 
summary conviction, without jury 
trial; and the act was held void on 
the ground that jury trial was ex- 
pressly given by the colonial charter, 
which then constituted the constitu- 
tion of the State. Although the 
judges were not removed on impeach- 
ment, the legislature refused to re- 
elect them when their terms expired 
at the end of the year, and suppl,anted 
them by more pliant tools, by whose 
assistance the paper money was forced 
-into circulation, and public and pri- 
vate debts extinguished by means of 
it. Concerning the other case, we 
•copy from the Western Law Monthly, 
" Sketch of Hon. Calvin Pease," Vol. 
■V. p. 3, June, 1863 : " The first ses- 
sion of the Supreme Court [of Ohio] 
■«nder the constitution was held at 



Warren, Trumbull County, on the 
first Tuesday of June, 1803. The 
State was divided into three circuits. 
. . . The third circuit of the State 
was composed of the counties of 
Washington, Belmont, Jefferson, Co- 
lumbiana, and Trumbull. At this 
session of the legislature, Mr. Pease 
was appointed President Judge of the 
Third Circuit in April, 1803, and 
though nearly twenty-seven years old, 
he was very youthful in his appear- 
ance. He held the office until March 
4, 1810, when he sent his resignation 
to Governor Huntingdon. . . . Dur- 
ing his term of service upon the bench 
many interesting questions were pre- 
sented for decision, and among them 
the constitutionality of some portion 
of the act of 1805, defining the duties 
of justices of the peace; and he de- 
cided that so much of the fifth section 
as gave justices of the peace jurisdic- 
tion exceeding $20, and so much of 
the twenty-ninth section as prevented 
plaintiffs from recovering costs in ac- 
tions commenced by original writs in 
the Court of Common Pleas, for sums 
between $20 and S50, were repugnant 
to the Constitution of the United 
States and of the State of Ohio, and 
therefore null and void. . . . Tlie 
clamor and abuse to which this deci- 
sion gave rise was not in the least 
mitigated or diminished by the cir- 
cumstance that it was concurred in by 
a. majority of the judges of the Su- 
preme Court, Messrs. Huntingdon and 
Tod. ... At the session of the legis- 
lature of 1807-8, steps were taken to 
impeach him and the judges of the 
Supreme Court who concurred with 
him; but the resolutions introduced 
into the house were not acted upon 
during the session. But the scheme 
was not abandoned. At an early day 



CH. VH.] DECLARING STATUTES UNCONSTITUTIONAL. 197 



* I. In view of the considerations which have been sug- [* 161] 
gested, the rule which is adopted by some courts, that they 
will not * decide a legislative act to be unconstitutional [* 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 until the bench is full, seems a very prudent and proper 
precaution to be observed before entering upon questions so deli- 
cate and so important. The benefit of the wisdom and delibera- 
tion of every judge ought to be had under circumstances so grave. 
Something more than private rights are involved ; 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 



of the next session, and with almost 
indecent haste, a committee was ap- 
pointed to inquire into the conduct of 
the offending judges, and with leave 
to exhibit articles of impeachment, or 
report otherwise, as the facts might 
justify. The committee without de- 
lay reported articles of impeachment 
against Messrs. Pease and Tod, hut 
not against Huntingdon, who in the 
mean time had been elected governor 
of the State. . . . The articles of im- 
peachment were preferred by the 
House of Representatives on the 23d 
day of December, 1808. He was sum- 
moned at once to appear before the 
Senate as a high court of impeach- 
ment, and he promptly obeyed the 
summons. The managers of the pros- 
ecution on the part of the House 
were Thomas Morris, afterwards sen- 
ator in Congress from Ohio, Joseph 
Sharp, James Pritchard, Samuel Mar- 
rett, and Othniel Toofcer. . . . Sev- 
eral days were consumed in the 
investigation, but the trial resulted 
in the acquittal of the respondent." 
Sketch of Hon. George Tod, August 
number of same volume : "At the 
session of the legislature of 1808-9, 
he was impeached for concurring in 
decisions made by Judge Pease, in 
the counties of Trumbull and Jeffer- 



son, that certain provisions of the act 
of the legislature, passed in 1805, 
defining the duties of justices of the 
peace, were in conflict with the Con- 
stitution of the United States and of 
the State of Ohio, and therefore void. 
These decisions of the courts of Com- 
mon Pleas and of the Supreme Court, 
it was insisted, were not only an 
assault upon the wisdom and dignity, 
but also upon the supremacy of the 
legislature, which passed the act in 
question. This could not be endured; 
and the popular fury against the 
judges rose to a very high pitch, and 
the senator from the county of Trum- 
bull in the legislature at that time, 
Calvin Cone, Esq., took no pains to 
soothe the offended dignity of the 
members of that body, or their sym- 
pathizing constituents, but pressed a 
contrary line of conduct. The judges 
must be brought to justice, he insisted 
vehemently, and be punished, so that 
others might be terrified by the ex- 
ample, and deterred from committing 
similar offences in the future. The 
charges against Mr. Tod were sub- 
stantially the same as those against 
Mr. Pease. Mr. Tod was first tried, 
and acquitted. The managers of the 
impeachment, as well as the result, 
were the same in both cases." 



198 



COKSTITXJTIONAL LIMITATIONS. 



[CH. vn. 



action, until a full bench has been consulted, and its deliberate 
opinion is found to be against it. But this is a rule of propriety, 
not of constitutional obligation ; and though generally adopted 
and observed, each court will regulate, in its own discretion, its 

practice in this particular.^ 
[* 163] * II. Neither will a court, as a general rule, pass upon 

a constitutional question, and decide a statute to be in- 
valid, unless a decision upon that very point becomes necessary 
to the determination of the cause. " While the courts cannot 
shun the discussion of constitutional questions when fairly pre- 
sented, 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 is both more proper and more respect- 
ful to a co-ordinate department to discuss constitutional questions 
only when that is the very Us mota. Thus presented and deter- 



1 Briscoe V. Commonwealth Bank 
of Kentucky, 8 Pet. 118. It has been 
intimated that inferior courts should 
not presume to pass upon constitu- 
tional questions, but ought in all cases 
to treat statutes as valid. Ortman v. 
Greenman, 4 Mich. 291. But no tri- 
bunal can exercise judicial power, 
unless it is to decide according to its 
judgment; and it is difficult to dis- 
cover any principle of justice which 
can require a magistrate to enter upon 
the execution of a' statute when he 
believes it to be invalid, especially 
when he must thereby subject himself 
to prosecution, without any indemnity 
in the law if it proves to be invalid. 
Undoubtedly when the highest courts 
in the land hesitate to declare a law 
unconstitutional, and allow much 
weight to the legislative judgment, 
the inferior courts should be still 
more reluctant to exercise this power, 
and a becoming modesty would at 
least be expected of those judicial 
officers who have not been trained to 
the investigation of legal and consti- 
tutional questions. But in any case 
a judge or justice, being free from 
doubt in his own mind, and unfet- 
tered by any judicial decision properly 
binding upon him, must follow his 



own sense of duty upon constitutional 
as well as upon any other questions. 
See Miller v. State, 3 Ohio, n. S. 483; 
Pirn V. Nicholson, 6 Ohio, N. s. 180; 
Mayberry v. Kelly, 1 Kan. 116. In 
the case last cited it is said: "It is 
claimed by counsel for the plaintiff in 
error, that the point raised . by the 
instruction is, that inferior courts and 
ministerial officers have no 'right to 
judge of the constitutionality of a 
law passed by a legislature. But is 
this law? If so, a court created to 
intferpret the law must disregard the 
constitution in forming its opinions. 
The constitution is law, — the funda- 
mental law, — and must as much be 
taken into consideration by a justice 
of the peace as by any other tribunal. 
When two laws apparently conflict, it 
is the duty of all courts to construe 
them. If the conflict is irreconcilable, 
they must decide which is to prevail ; 
and the constitution is not an excep- 
tion to this rule of construction. If 
a law were passed in open, flagrant 
violation of the constitution;, should a 
justice of the peace regard the law, 
and pay no attention to the constitu- 
tional provision ? If that is his duty 
in a plain case, is it less so when the 
construction becomes more difficult? " 



CH. VH.] DECLABING STATUTES trNCONSTITTTTIONAIi. 199 

mined, the decision carries a weight 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 disposed of without considering it, and when 
consequently a decision upon such question will be unavoidable.^ 
III. Nor will a court listen to an objection made to the consti- 
tutionality of an act by a party whose rights it does not affect, and 
who has therefore no interest in defeating it. On this ground 
it has been held that the objection that a legislative act was 
unconstitutional, because divesting the rights of remainder-men 
against their will, could not be successfully urged by the owner 
of the particular estate, and could only be made on behalf 
* of the remainder-men themselves.' And a party who [* 164] 
has assented to his property being taken under a statute 
cannot afterwards object that the statute is in violation of a pro- 
vision 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 on the 
face of the act itself, nothing will generally appear to show that 
the act is not valid ; and it is only when some person attempts to 
resist its operation, and calls in the aid of the judicial power to 
pronounce it void, as to him, his property or his rights, that the 
objection of 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- 

1 Hoover ». Wood, 9 Ind. 287 ; Ire- « Sinclair v. Jackson, 8 Cow. 543. 

land V. Turnpike Co., 19 Ohio, n. s. See also Smith v. McCarthy, 56 Penn. 

373 ; Smith v. Speed, 50 Ala. 277. St. 359 ; Antoni ». Wright, 22 Grat. 

2 Bs^arfeRandolph, 2Brock.447; 857; Marshall v. Donovon, 10 Bush, 

Frees v. Ford, 6 N. Y. 177, 178; 681. 

Cumberland, &o. E. R. Co. v. Bar- * Embury v. Conner, 3 N. Y. 511; 

ren Co. Court, 10 Bush, 564; White Bakers. Braman, 6 Hill, 47; Mobile 

V. Scott, 4 Barb. 56; Mobile and and Ohio Railroad Co. v. State, 29 

Ohio Raikoad Co. v. State, 29 Ala. Ala. 586; Haskell v. New Bedford, 

573 108 Mass. 208. 



200 CONSTITUTIONAIi LIMITATIONS. [Cfe. VII. 

ence from this position, that this ground of avoidailce can be taken 
advantage of by those only who have a right to question the 
validity of the act, and not by strangers. To this extent only is 
it necessary to go, in order to secure and protect the rights of all 
persons against the unwarranted exercise of legislative power, 
and to this extent only, therefore, are courts of justice called on 
to interpose." ^ 

IV. 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 
prohibited or such rights guaranteed or protected by the consti- 
tution. It is true there are some reported cases, in which judges, 
have been understood to intimate a doctrine different from what 
is here asserted ; but it will generally be found, on an examination 
of those cases, that what is said is rather by way of argument and 
illustration, to show the unreasonableness of putting upon consti- 
tutions such a construction as would permit legislation of the 
objectionable character then in question, and to induce a more 
cautious and patient examination of the statute, with a 
[* 165] view to * discover in it, if possible, some more just and 
reasonable legislative intent, than as laying down a rule 
bj'^ which courts would be at liberty to limit, according to their 
own judgment and sense of justice and propriety, the extent of 
legislative power in directions in which the constitution had im- 
posed no restraint. Mr. Justice Story, in one case, in examining 
the extent of power granted by the charter of Rhode Island, 
which authorized the General Assembly to make laws in the most 
ample manner, " so as such laws, &c., be not contrary and repug- 
nant unto, but as near as may be agreeable to, the laws of Eng- 
land, considering the nature and constitution of the place and 
people there," expresses himself thus : " What is the true extent 
of the power thus granted must be open to explanation as well by 
usage as by construction of the terms in which it is given. In 
a government professing to regard the great rights of personal 

1 Wellington, Petitioner, 16 Pick. Heyward v. Mayor, &c. of New York, 

96. And see Hingham, &o. Turnpike 8 Barb. 489 ; Matter of Albany St., 

Co. ». Norfolk Co., 6 Allen, 353; 11 Wend. 149; Williamson v. Carl- 

De Jarnettes. Haynes, 23 Miss. 600; ton, 51 Me. 449; State v. Kich, 20 

Sinclair v. Jackson, 8 Cow. 543, 579 ; Miss. 393 ; Jones v. Black, 48 Ala. 540. 



CH. Vn.] DECLARESTG STATUTES UNCONSTITUTIONAL. 201 

liberty and of property, and which is required to legislatie 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 General Assembly of Rhode Island, as an exer- 
cise of transcendental sovereignty before the Revolution, it can 
scarcely be imagined that that great event could have left the 
people of that State subjected to its uncontrolled and arbitrary 
exercise. That government can scarcely be deemed to be free, 
where the rights of property are left solely dependent upon the 
will of a legislative body, without any restraint. The fundamental 
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 
assuming that the power to violate and disregard them — a power 
so repugnant to the common principles of justice and civil liberty 
— lurked under any general grant of legislative authority, or 
ought to be implied from any general expressions of the will of the 
people. The people ought not to be presumed to part with rights 
so vital to their security and well-being, without very strong and 
direct expressions of such an intention." " We know of no case in 
which a legislative act to transfer the property of A. to B., without 
his consent, has ever been held a constitutional exercise of 
legislative power in any State in * the Union. On the [* 166] 
contrary, it has been constantly resisted, as inconsistent 
with just principles, by every judicial tribunal in which it has 
been attempted to be enforced." ^ The question discussed by the 

1 Wilkinson v. Leland, 2 Pet. 657. operate against common right and 
See also' what is said by the same common reason. In Bowman v. Mid- 
judge in Terrett v. Taylor, 9 Cranch, dleton, 1 Bay, 282, the court held an 
43. " Itis clear that statutes passed act which divested a man of his free- 
against plain and obvious principles hold and passed it over to another, to 
of common right and common reason be void " as against common right as 
are absolutely null and void, so far as well as against Magna Charta. " In 
they are calculated to operate against Regents of University v. Williams, 
those principles." Hamv. McClaws, 9 Gill & J. 365, it was said that an 
1 Bay, 98. But the question in that act was void as opposed to funda- 
case was one of construction ; whether mental principles of right and jnstice 
the court should give to a statute a inherent in the nature and spint of 
construction which would make it the social compact. But the court 



202 CONSTITUTIONAL LIMITATIONS, [CH. VH, 

learned judge in this case is perceived to have been, "What is the 
scope of a grant of legislative power to be exercised in conformity 
■with the laws of England ? Whatever he says is pertinent to that 
question ; and the considerations he suggests are by way of argu- 
ment to show that the power to do certain unjust and oppressive 
acts was not covered by the grant of legislative power. It is not 
intimated that if they were within the grants they would be im- 
pliedly prohibited because unjust and oppressive. 

In another case decided in the Supreme Court of New York, 
one of the judges, in considering the rights of the city of New 
York to certain corporate property, used this language : " The 
inhabitants of the city of New York have a vested right in the 
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 constitution, but upon the great principles 
of eternal justice which lie at the foundation of all free govern- 
ments." ^ The great principles of eternal justice which affected 
the particular case had been incorporated in the constitution ; and 
it therefore became unnecessary to consider what would otherwise 
have been the rule ; nor do we understand the court as intimat- 
ing any opinion upon that subject. It was sufficient for 
[* 167] the case, to find * that the principles of right and justice 
had been recognized and protected by the constitution, 
and that the people had not assumed to confer upon the legisla- 
ture a power to deprive the city of rights which did not come 
from the constitution, but from principles antecedent to and rec- 
ognized by it. 

So it is said hy Sosmer, 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 agree. Should there exist — what I know is not 
only an incredible supposition, but a most remote improbability — 
a case of direct infraction of vested rights, too palpable to be ques- 
tioned and too unjust to admit of vindication, I could not avoid 
considering it as a violation of the social compact, and within the 

had already decided that the act &c. of Baltimore v. State, 15 Md. 

was opposed, not only to the consti- 376. 

tation of the State, but to that of i Benson v. Mayor, &c. of New 

the United States also. See Mayor, York, 10 Barb. 2ii. 



CH. VII.] DECLARING STATUTES TTNCOKSTITtTTIONAL. 203 

control of the judiciary. If, for example, a law were made with- 
out any cause to deprive a person of his property, or to subject him 
to imprisonment, who would not question its legality, and who 
would aid in carrying it into effect ? On the other hand, I cannot 
harmonize with those who deny the power of the legislature, in 
any cases, to pass laws which, with entire justice, operate on ante- 
cedent legal rights. A retrospective law may be just and rea- 
sonable, and the right of the legislature to enact one 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 arise 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 
to us, be very great probability of unpleasant and dangerous con- 
flict of authority if the courts were to deny validity to legislative 
' action on subjects within their control, on the assumption that 
the legislature had disregarded justice or sound policy. The 
moment a court ventures to substitute its own judgment for that 
of the legislature, in any case where the constitution has vested 
the legislature with power over the subject, that moment 
it enters * upon a field where it is impossible to set limits [* 168] 
to its authority, and where its discretion alone will meas- 
ure the extent of its interference.^ 

1 Goshen v. Stonington, 4 Conn, and would necessarily lead to coUi- 
225. sions between the legislative and judi- 

2 "If the legislature should pass cial departments, dangerous to the 
a law in plain and unequivocal Ian- well-being of society, or at least not 
guage, within the general scope of in harmony with the structure of our 
their constitutional powers, I know of ideas of natural goyernment." Per 
no authority in this government to Rogers, J., in Commonwealth v. 
pronounce such an act void, merely McCloskey, 2 Rawle, 374. " All the 
because, in the opinion of the judicial courts can do with odious statutes is 
tribunals, it was contrary to the prin- to chasten their hardness by con- 
ciples of natural justice; for this would struction. Such is the imperfection 
be vesting in the court a latitudina- of the best human institutions, that, 
rian authority which might be abused, mould them as we may, a large dis- 



204 



CONSTITUTIONAL LIMITATIONS. 



[CH. vn. 



The rule of law upon this subject appears to be, that, except 
where the constitution has imposed limits upon the legislative 
power, it must be considered as practically absolute, whether it 
operate according to natural justice or not in any particular case. 
The courts are not the gi;ardians 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 protec- 
tion against unwise or oppressive legislation, within constitutional 
bounds, is by an appeal to the justice and patriotism of the repre- 
sentatives of the people. If this fail, the people in their sovereign 
capacity can correct the evil ; but courts cannot assume their 
rights.^ The judiciary can only arrest the execution of a statute 
when it conflicts with the constitution. It cannot run a race of 
opinions upon points of right, reason, and expediency with the law- 
making power.^ Any legislative act which does not encroach upon 
the powers apportioned to the other departments of the govern- 
ment, being prima facie valid, must be enforced, unless restrictions 
upon the legislative authority can be pointed out in the constitu- 
tion, and the case shown to come within them.^ 



cretion must at last be reposed some- 
where. The best and in many cases 
the only security is in the wisdom and 
integrity of public servants, and their 
identity with the people. Govern- 
ments cannot be administered without 
committing powers in trust and con- 
fidence." Beebe v. State, 6 Ind. 528, 
per Stuart, J. And see Johnston v. 
Commonwealth, 1 Bibb, 603; Flint 
River Steamboat Co. v. Poster, 5 Geo. 
194 ; State ». Kruttschnitt, 4 Nev. 
178; Walker v. Cincinnati, 21 Ohio, 
N. 8. 14; Hills V. Chicago, 60 HI. 86. 

1 Bennett v. Bull, Baldw. 74; 
Walker v. Cincinnati, 21 Ohio, n. s. 
14. "If the act itself is within the 
scope of their authority, it must stand, 
and we are bound to make it stand, 
if it will upon any intendment. It is 
its effect, not its purpose, which must 
determine its validity. Nothing but 
a clear violation of the constitution — 
a clear usurpation of power prohibited 
— will justify the judicial department 
in pronouncing an act of the legisla- 



tive department unconstitutional and 
void." Pennsylvania R. R. Co. v. 
Riblet, 66 Penn. St. 164, 169. See 
Weber v. Reinhard, 73 Penn. St. 370; 
Chicago, &c. R. R. Co. v. Smith, 62 
111. 268; People v. Albertson, 55 
N. Y. 50; per Allen, J., Martin i'. 
Dix, 52 Miss. 52, 64 ; per Chalmers, 
J., Bennett v. Boggs, Baldw. 60, 74; 
United States v. Brown, 1 Deady, 
566; Commonwealth v. Moore, 25 
Grat. 951 ; Danville v. Pace, 25 Grat. 
1, 8 ; Munn v. Illinois, 94 U.. S. Rep. 
113. 

'^ Perkins, J., in Madison and In- 
dianapolis Railroad Co. v. Whiteneck, 
8 Ind. 222 ; Bull v. Read, 13 Grat. 98, 
per Lee, J. 

s Sill V. Village of Corning,. 15 
N. Y. 303; Varick v. Smith, 5 Paige, 
137; Cochran ». Van Surlay, 20 
Wend. 365 ; Morris v. People, 3 
Denio, 381 ; Wynehamer v. People, 13 
N. Y. 430; People v. Supervisors of 
Orange, 17 N. Y. 235; Dow w. Norris, 
4 N. H. 16 ; Derby Turnpike Co. v. 



OH. VII.] DECLARING STATUTES TTNCONSTITUTIONAL. 



205 



* V. If the courts are not at liberty to declare statutes l* 169] 
void because of their apparent injustice or impolicy, neither 
can they do so because they appear to the minds of the judges to 
violate fundamental principles of republican government, unless 
it shaU be found that those principles are placed beyond legisla- 
tive encroachment by the constitution. The principles of repub- 
lican government are not a set of inflexible rules, vital and active 
in the constitution, though unexpressed, but they are subject to 
variation and modification from motives of 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 constitution in such form as to make them definite 
rules of action under all circumstances. It is undoubtedly a 
maxim of republican government, as we understand it, that taxa- 
tion and representation should be inseparable ; but where the 
legislature interferes, as in many cases it may do, to compel taxa- 
tion by a municipal corporation for local purposes, it is evident 



Parks, 10 Conn. 522, 543; Hartford 
Bridge Co. v. Union Ferry Co„ 29 
Conn. 210; Holden v. James, 11 Mass. 
396 ; Norwich v. County Commission- 
ers, 13 Pick. 60 ; Dawson v. Shaver, 
1 Blackf. 206; Beauchamp ». State, 6 
Blackf. 305 ; Doe ». Douglass, 8 
Blackf. 10; Maize v. State, 4 Ind. 
342 ; Stocking v. State, 7 Ind. 327 ; 
Beebe v. State, 6 Ind. 528; Newland 
i;. Marsh, 19 111. 376, 384; Chicago, 
&c. R. R. Co. V. Smith, 62 111. 268; 
Gutman v. Virginia Iron Co., 5 W. Va. 
22; Osborn v. Staley, 5 W. Va. 85; 
Yancy v. Yancy, 5 Heisk. 353 ; Bliss 
V. Commonwealth, 2 Litt. 90; State 
V. Ashley, 1 Ark. 513 ; Campbell i>. 
Union Bank, 6 How. (Miss.) 672; 
Tate's Ex'r v. Bell, 4 Yerg. 206; 
Andrews v. State, 3 Heisk. 165; s. c. 
8 Am. Rep. 8; Whittington v. Polk, 
1 Harr. & J. 236 ; Norris v. Abingdon 
Academy, 7 Gill & J. 7 ; Harrison v. 
State, 22 Md. 491; State v. Lyles, 
1 McCord, 238; Myers v. English, 9 
Cal. 341 ; Ex parte Newman, 9 Cal. 
502 i Hobart ». Supervisors, 17 Cal. 



23; Crenshaw v. Slate River Co., 6 
Band. 245; Lewis v. Webb, 3 Me. 
326 ; Durham v. Lewiston, 4 Me. 140; 
Lunt's Case, 6 Me. 412 ; Scott v. 
Smart's Ex'rs, 1 Mich. 306; Wil- 
liams V. Detroit, 2 Mich. 560; Tyler 
V. People, 8 Mich. 320; Weimer v. 
Bunbury, 30 Mich. 201 ; Cotton v. 
Commissioners of Leon County, 6 
Fla. 610 ; State v. Robinson, 1 Kan. 
27; Santo v. State, 2 Iowa, 165; Mor- 
rison V. Springer, 15 Iowa, 304; Stod- 
dart i>. Smith, 5 Binn. 355; Moore v. 
Houston, 3 S. & R. 169 ; Braddee v. 
Brownfield, 2 W. & S. 271 ; Harvey 
V. Thomas, 10 Watts, 63; Common- 
wealth V. Maxwell, 27 Penn. St. 456 
Lewis's Appeal, 67 Penn. St. 153 
Butler's Appeal, 73 Penn. St. 448 
Carey v. Giles, 9 Geo. 253; Macon and 
Western Railroad Co. v. Davis, 13 
Geo. 68; Franklin Bridge Co. v. 
Wood, 14 Geo. 80; Boston v. Cum- 
mins, 16 Geo. 102 ; Van Home v. 
Dorrance, 2 Dall. 309; Caldero. Bull, 
3 Dall. 386; Cooper o. Telfair, 4 Dall. 
18; Fletcher v. Peck, 6 Cranch, 128. 



206 CONSTITUTIONAL LIMITATIONS. [CH, VH. 

that this maxim is applied in the case in a much restricted 
[* 170] and very imperfect sense only, since the * representation 

of the locality taxed is but slight in the body imposing 
the tax, and the burden may be imposed, not only against the 
protest of the local representative, but against the general opposi' 
tion of the municipality. The property of women is taxable, 
notwithstanding they are not allowed a voice in choosing repre- 
sentatives.^ The maxim is not entirely lost sight of in such cases, 
but its application in the particular case, and the determination 
how far it can properly and justly be made to yield to 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- 
tricts, which shall choose their own administrative and police 
officers, and establish for themselves police regulations; but this 
{maxim 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 

1 Wheeler v. Wall, 6 Allen, 558; impolitic. Considerations of that sort 
Smith V. Macon, 20 Ark. 17. must in general be addressed to the 

2 "There are undoubtedly funda- legislature. Questions of policy there 
mental principles of morality and are concluded here. " Chase, Ch. J., 
justice -which no legislature is at lib- in License Tax Cases, 5 Wall. 469. 
erty to disregard, but it is equally " All mere questions of expediency, 
undoubted that no court, except in and all questions respecting the just 
the clearest cases, can properly im- operations of the law within the limits 
pute the disregard of those princi- prescribed by the constitution, were 
pies to the legislature. . . . This settled by the legislature when it was 
court can know nothing of public enacted." Ladd, J., in Perry «. 
policy except from the constitution Keene, 56 N. H. 514, 530. And see 
and the laws, and the course of ad- remarks of Ryan, Ch. J., in Attorney- 
ministration and decision. It has no General v. Chicago, &c. R. R. Co., 
legislative powers. It cannot amend 35 Wis. 425, 580. 

or modify any legislative acts. It » People v. Draper, 15 N. Y. 547. 
cannot examine questions as expe- See post, pp. *191 *192. 
dient or inexpedient, as politic or 



CH. Vn.] DECLARING STATUTES UNCONSTITUTIONAL. 



207 



administration has proved imperfect and inefficient, and a regard 
to the general well-being has demanded the change. In these 
cases the maxims which have prevailed in the government address 
themselves to the 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 treating the exceptions w.hich are made as uncon- 
stitutional.^ 



^ In People v. Mahaney, 13 Mich. 
500, -where the Metropolitan Police 
Act of Detroit was claimed to be un- 
constitutional on various grounds, the 
court say : "Besides the specific ob- 
jections made to the act as opposed to 
the provisions of the constitution, 
the counsel for respondent attacks it 
on ' general principles,' and especially 
because violating fundamental prin- 
ciples in our system, that governments 
exist by consent of the governed, and 
that taxation and representation go 
together. The taxation under the 
act, it is said, is really in the hands 
of a poUce board, a body in the choice 
of which the people of Detroit have 
no voice. This argument is one which 
might be pressed upon the legislative 
department with great force, if it 
were true in point of fact. But as the 
people of Detroit are really repre- 
sented throughout, the difficulty sug- 
gested can hardly be regarded as 
fundamental. They were represented 
in the legislature which passed the 
act, and had the same proportionate 
voice there with the other municipali- 
ties in the State, all of which receive 
from that body their powers of local 
government, and such only as its 
vrisdom shall prescribe within the con- 
stitutional limit. They were repre- 
sented in that body when the present 
police board were appointed by it, and 
the governor, who is hereafter to flU 
vacancies, will be chosen by the State 
at large, including their city. There 
is nothing in the maxim that taxation 
and representation go together which 
requires that the body paying the tax 



shall alone be consulted in its assess- 
ment; and if there were, we should 
find it violated at every turn in our 
system. The State legislature not 
only has a control in this respect over 
inferior municipalities, which it exer- 
cises by general laws, but it some- 
times finds it necessary to interpose 
its power in special cases to prevent 
unjust or burdensome taxation, as 
well as to compel the performance of 
a clear duty. The constitution itself, 
by one of the clauses referred to, 
requires the legislature to exercise its 
, control over the taxation of municipal 
corporations, by restricting it to what 
that body may regard as proper 
bounds. And municipal bodies are 
frequently compelled most unwillingly 
to levy taxes for the payment of 
claims, by the judgments or man- 
dates of courts in which their repre- 
sentation is quite as remote as that of 
the people of Deti'oit in this police 
board. It cannot therefore be said 
that the maxims referred to .have been 
entirely disregarded by the legislature 
in the passage of this act. But as 
counsel do not claim that, in so far as 
they have been departed from, the 
constitution has been violated, we 
cannot, with propriety, be asked to 
declare an act void on any such gen- 
eral objection." And see Wynehamer 
V. People, 13 N. Y. 429, per Selden, 
J. ; Benson v. Mayor, &c. of Albany, 
24 Barb. 256 et seq.; Baltimore v. 
State, 15 Md. 376; People v. Draper, 
15 N. Y. 582; White v. Stamford, 37 
Conn. 587. 



208 CONSTITTTTIONAli LIMITATIOKS. [CH. VH. 

[* 171] * VI. Nor are the courts at liberty to declare an act 
void, because in their opinion it is opposed to a spirit 
supposed 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 spirit of the constitution 
which is not even mentioned in the instrument." * " It is diffi- 
cult," says Mr. Senator Verplanck, " upon any general principles, 
to limit the omnipotence of the sovereign legislative power by 
judicial interposition, except so far as the express words of a 
written constitution give that authority. There are indeed many 
dicta and some great authorities holding that acts contrary to the 
first principles of right are void. The principle is un- 
[* 172] questionably * sound as the governing rule of a legislature 
in relation to its own acts, or even those of a preceding 
legislature. It also affords a safe rule of construction for courts, 
in the interpretation of laws admitting of any doubtful construc- 
tion, to presume that the legislature could not have intended an 
unequal and unjust opei'ation of its statutes. Such a construc- 
tion ought never to be 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. 
But it is only in express constitutional provisions, limiting legis- 
lative power and controlling the temporary will of a majority, by 
a permanent and paramount law, settled by the deliberate wisdom 
of the nation, that I can find a safe and solid ground for the 
authority of courts of justice to declare void any legislative enact- 
ment. Any assumption of authority beyond this would be to 
place in the hands of the judiciary powers too great and too un- 
defined either for its own security or the protection of private 
rights. It is therefore a most gratifying circumstance to the 
friends of regulated liberty, that in every change in their consti- 
tutional polity which has yet taken place here, whilst political 
power has been more widely diffused among the people, stronger 
and better-defined guards have been given to the rights of prop- 
erty." And after quoting certain express limitations, he pro- 

1 People V. Fisher, 24 Wend. 220; State v. Staten, 6 Cold. 233 ; Walker 
V. Cincinnati, 21 Ohio, n. s. 14. 



CH. Vn.] DECLARING STATUTES UNCONSTITUTIONAL. 209 

ceeds : " Believing that we are to rely upon these and similar 
provisions as the best safeguards of our rights, as well as the 
safest authorities for judicial direction, I cannot bring myself to 
approve of the power of courts to annul any law solemnly passed, 
either on an assumed ground of its being contrary to natural 
equity, or from a broad, loose, and vague interpretation of a con- 
stitutional provision beyond its natural and obvious sense." ^ 

The accepted theory upon this subject appears to be this : In 
every sovereign State there resides an absolute and uncontrolled 
power of legislation. In Great Britain this complete power rests 
in the Parliament : in the American States it resides in the people 
themselves as an organized body politic. But the people, 
by * creating the Constitution of the United States, have [* 173] 
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, 
first, as it may have been limited by the Constitution of the United 
States ; and, second, as it may have been limited by the constitu- 
tion of the State. A legislative act cannot, therefore, be declared 
void, unless its conflict with one of these two instruments can be 
pointed out.^ 

It is to be borne in mini, however, that there is a broad dif- 
ference between the Constitution of the United States and the 
constitutions of the States as regards the powers which may be 
exercised under them. The government of the United States 

1 Cochran v. Van Surlay, 20 Wend. Selden, J. ; 13 N. Y. 477, per John- 

381-383. See also People v. Galla- son, J. 

gher, 4 Mich. 244 ; Benson v. Mayor, " People ». New York Central Rail- 

&c. of Albany, 24 Barb. 252 et seq. ; road Co., 34 Barb. 138 ; Gentry v. Grif- 

Grant v. Courier, 24 Barb. 232; fith, 27 Tex. 461 ; Danville w. Pace, 25 

Wynehamer v. People, 13 N. Y. 391, Grat. 1 ; s. c. 18 Am. Rep. 663. And see 

per Comstock, J. ; 13 N. Y. 453, per the cases cited, ante, p. *168, note 3. 

14 



210 CONSTITUTIOKAL LOaTATIONS, [CH. VH. 

is one of enumerated powers ; the governments of the States are 
possessed of all the general powers of legislation. "When a law 
of Congress is assailed as void, we look in the national Constitu- 
tion to see if the grant of specified powers is broad enough to em- 
brace it ; but when a State law is attacked on the same ground, 
it is presumably valid in any case, and this presumption is a con- 
clusive one, unless in the Constitution of the United States or of 
the State we are able to discover that it is prohibited. We look 
in the Constitution of the United States for grants of legislative 
power, but in the constitution of the State to ascertain if any 
limitations have been imposed upon the complete power with 
which the legislative department of the State was vested in its 
creation. Congress can pass no laws but such as the Constitution 
authorizes either expressly or by clear implication ; while the 
State legislature has jurisdiction of all subjects on which its leg- 
islation is not prohibited.! " The law-making power of 
[* 174] the * State," it is said in one case, " recognizes no re- 
straints, and is bound by none, except such as are im- 
posed by the constitution. That instrument has been aptly termed 
a legislative act by the people themselves in their sovereign capac- 
ity, and is therefore the paramount law. Its object is not to grant 
legislative power, but to confine and restrain it. Without the con- 
stitutional 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 con- 
stitution is the separation and distribution of the powers of the 
government. It takes care to separate the executive, legislative, 
and judicial powers, and to define their limits. The executive 
can do no legislative act, nor the legislature any executive act, 
and neither can exercise judicial authority." ^ 

It does not follow, however, that in every case the courts, 
before they can set aside a law as invalid, must be able to find in 
the constitution some specific inhibition which has been disre- 

1 Sill V. Village of Corning, 15 La. Ann. 190 ; Walpole v. Elliott, 18 

N. Y. 303; People v. Supervisors of Ind. 258; Smith v. Judge, 17 Cal. 

Orange, 27 Barb. 593 ; People ». 547 ; Commonwealth o. Hartman, 17 

Gallagher, 4 Mich. 244; Sears v. Penn. St. 119; Kirby v. Shaw, 19 

Cottrell, 5 Mich. 257; People w. New Penn. St. 260; Weister ». Hade, 52 

York Central Railroad Co., 24 N. Y. Penn. St. 477; Danville v. Pace, 25 

497, 504; People v. Toynbee, 2 Park. Grat. 1, 9; s. c. 18 Am. Rep. 663. 
Cr. R. 490 ; State v. Gutierrez, 15 " Sill v. Cornimg, 15 N, Y. 303. 



CH. VII.] DECLAEING STATUTES UNCONSTITUTIONAL. 211 

garded, or some express command which has been disobeyed.^ 
Prohibitions are only important where they are in 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 department was vested the whole power of the 
government, it might be essential for the people, in the instru- 
ment delegating this complete authority, to make careful and 
particular exception of all those cases which it was intended to 
exclude from its cognizance ; for without such exception the 
government might do whatever the people themselves, when met 
in their sovereign capacity, would have power to dq. 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- 
den, it is nevertheless * inconsistent with the provisions [* 175] 
which 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, and wholly unknown 
to constitutional government.^ It could not be necessary to for- 
bid the judiciary to render judgment without suffering the party 
to make d.efence ; because it is implied in judicial authority that 
there shall be a hearing before condemnation.* Taxation cannot 
be arbitrary, because its very definifion includes apportionment, 
nor can it be for a purpose not public, because that would be a 

1 A remarkable case of evasion to ^ Ante, pp. *87-*114, and cases 

avoid the purpose of the constitution, cited. 

and still keep within its terms, was ' Post, pp. *410-*413, and cases 

considered in People v. Albertson, 55 cited. 

N. Y. 50. In Taylor v. Commis- * Post, pp. *353-*354. On this sub- 

sioners of Ross County, 23 Ohio, n. s. ject in general, reference is made to 

22, the Supreme Court of Ohio found those very complete recent works, 

itself under the necessity of declaring Bigelow on Estoppel and Freeman on 

that that which was forbidden by Judgments, 
the constitution could no more be 
done indirectly than directly. 



212 CONSTITUTIONAL LIMITATIONS. [CH. VH. 

contradiction, in terms.^ The right of local self-government can- 
not be taken away, because all our constitutions assume its 
continuance as the undoubted right of the people, and as an 
inseparable 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 property over to another would nevertheless be void. If 
the act proceeded upon the assumption that such other person 
was justly entitled to the estate, and therefore it was transferred, 
it would be void, because judicial in its nature; and if it pro- 
ceeded withqut reasons, it would be equally void, as neither 
legislative 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 con- 
stitution and void. It is assuming a power which the people, if 
they have not granted it at all, have reserved to themselves. The 
maxims of Magna Charta and the common law are the inter- 
preters of constitutional grants of power, and those acts which 
by those maxims the several departments of government are for- 
bidden to do cannot be considered within any grant or apportion- 
ment of power which the people in general terms have made to 

those departments. The Parliament of Great Britain, 
[* 176] indeed, as possessing the sovereignty * of the country, has 

the power to disregard fundamental principles, and pass 
arbitrary and unjust enactments ; but it cannot do this rightfully, 
and it has the power to do so simply because there is no written 

1 Post, ch. 14. And see Curtis ». regulated and properly administered 

Whipple, 24 Wis. 350; Tyson v. government, whether embodied in a 

School Directors, 51 Penn. St. 9; constitutional form or not, that pri- 

Freeland v. Hastings, 10 Allen, 575 ; vate property cannot be taken for a 

Opinions of Judges, 58 Me. 590; strictly private purpose at all, nor for 

People V. Batchellor, 53 N. Y. 128; public without a just compensation; 

Lowell V. Boston, 111 Mass. 454. and that the obligation of contracts 

* People V. Mayor, &c. of Chicago, cannot be abrogated or essentially 

51 111. 31; People v. Hurlbut, 24 impaired. These and other vested 

Mich. 44. rights of the citizen are held sacred 

8 Bowman v. Middleton, 1 Bay, and inviolable, even against the pleni- 

252 ; Wilkinson v. Leland, 2 Pet. tude of power in the legislative de- 

657; Terrett v. Taylor, 9 Cranch, 43; partment." Nelson, J., in People v. 

Ervine's Appeal, 16 Penn. St. 266. Morris, 18 Wend. 328. See Bank of 

" It is now considered an universal and Michigan v. Williams, 5 Wend. 486. 
fundamental proposition in every well- 



CH. VII.] DBCLAEING STATUTES UNCONSTITUTIONAL. 213 

constitution from which its authority springs or on which it 
depends, and by which the courts can test the validity of its 
declared will. The rules which confine the discretion of Parlia- 
ment within the ancient landmarks are rules for the construction 
of the powers of the American legislatures ; and however proper 
and prudent it may be expressly to prohibit those things which 
are not understood to be within the proper attributes of legislative 
power, such prohibition 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 implication, confer power. 

Nor, where fundamental rights are declared by the constitu- 
tion, is it necessary at the same time to prohibit the legislature, in 
express terms, from taking them away. The declaration is itself 
a prohibition, and is inserted in the constitution for the express 
purpose of operating as a restriction upon legislative power.^ 
Many things, indeed, which are contained in the bills of rights 
to be found in the American constitutions, are not, and from the 
very nature of the case cannot be, so certain and definite in 
character 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 diffi- 
culty 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 jus- 
tice, moderation, temperance, frugality, and virtue," we should 
not be likely to commit the mistake of supposing that this decla- 
ration would authorize the courts to substitute their own view of 
justice for that which may have impelled the legislature to pass 
a particular law, or to inquire into the moderation, temperance, 
frugality, and virtue of its members, with a view to set aside 
their action, if it should appear to have been influenced 
by the opposite qualities. It is plain that *what in [* 177] 
the one case is a rule, in the other is an admonition ad- 

1 Beebe v. State, 6 Ind. 518. This principle is very of ten acted upon when 
not expressly declared. 



214 CONSTITUTIONAL LIMITATIONS. [CH. VU. 

dressed to the judgment and the conscience of all persons in 
authority, as well as of the people themselves. 

So the forms prescribed for legislative action are in the nature 
of limitations upon its authority. The constitutional provisions 
which establish them are equivalent to a declaration that the 
legislative power shall be exercised under these forms, and shall 
not be exercised under any other. A statute which does not 
observe them will plainly be ineffectual.^ 

Statutes unconstitutional in Part, 

It will sometimes be found that an act of the legislature is 
opposed in some of its provisions to the constitution, while 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 confficts with the 
constitution, or in regard to which the necessary conditions have 
not been observed, must be treated as a nullity. Whether the 
other parts of the statute must also be adjudged void because of 
the association must depend upon a consideration of the object of 
the law, and in what manner and to what extent the unconstitu- 
tional portion affects the remainder. A statute, it has been said, 
is judicially held to be unconstitutional, because it is not within 
the scope of legislative authority ; it may either propose to ac- 
complish something prohibited by the constitution, or to accom- 
plish some lawful, and even laudable object, by means repugnant 
to the Constitution of the United States or of the State.^ 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 
law to adjudge these enactments void, because they are associated 
in the same act, but not connected with or dependent on others 

1 See ante, p. *130 et seq. nature, or because it is inconsistent 

' Commonwealth v. Clapp, 5 Gray, with some provision of the federal or 

100. " A law that is unconstitutional State constitution." Woodworth, J., 

is so because it is either an assump- in Commonwealth v. Maxwell, 27 

tion of power not legislative in its Penn. St. 456. 



CH. Vn.] DECLARING STATUTES UKCONSTITUTIONAl. 215 



which are unconstitutional.^ Where, therefore, a part of 
a * statute is unconstitutional, that fact does not author- [* 178] 
ize the courts to declare the remainder void also, unless 
all the provisions are connected in subject-matter, depending on 
each other, operating together for the same purpose, or otherwise 
so connected together in meaning, that it cannot be presumed the 
legislature would have passed the one without the other.^ 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 maj' 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 jn accordance 

1 Common-wealth v. Clapp, 5 Gray, 
100. See, to the same effect, Fisher 
V. McGirr, 1 Gray, 1 ; Warren v. 
Mayor, &c. of Charlestown, 2 Gray, 
84; Wellington, Petitioner, 16 Pick. 
95 ; Commonwealth v. Hitchings, 5 
Gray, 482 ; Commonwealth v. Pome- 
roy, 5 Gray, 486 ; State ». Copeland, 
3 R. I. 33; State v. Snow, 3 R. I. 64; 
Armstrong v. Jackson, 1 Blackf. 374; 
Clark V. Ellis, 2 Blackf. 248 ; Mc- 
Culloch V. State, 11 Ind. 432 ; People 
V. Hill, 7 Cal. 97 ; Lathrop v. Mills, 
19 Cal. 513; Rood v. McCargar, 49 
Cal. 117 ; Supervisors of Knox Co. 
V. Davis, 63 111. 405 ; Myers v. People, 
67 111. 503 ; Thomson v. Grand Gulf 
Railroad Co., 3 How. (Miss.) 240; 
Campbell v. Union Bank, 6 How. 
(Miss.) 625; Mobile and Ofiio Railroad 
Co. V. State, 29 Ala. 573; Santo v. 
State, 2 Iowa, 165; State v. Cox, 3 
Eng. 436 ; Mayor, &o. of Savannah v. 
State, 4 Geo. 26 ; Exchange Bank v. 
Hines, 3 Ohio, n. 8. 1 ; Robinson v. 
Bank of Darien, 18 Geo. 65; State 
V. Wheeler, 25 Conn. 290; People 
V. Lawrence, 36 Barb. 190; Wil- 
liams V. Payson, 14 La. Ann. 7; 
Ely V. Thompson, 3 A. K. Marsh. 
70 ; Davis v. State, 7 Md. 151 ; 
State V. Commissioners of Balti- 



more, 29 Md. 521 ; Hagerstown v. 
Dechert, 32 Md. 369; Berry ». Balti- 
more, &c. R. R. Co., 41 Md. 446; 
s. c. 20 Am. Rep. 69; State v. Clark, 
54 Mo. 17; Lowndes Co. v. Hunter, 49 
Ala. 507; Isom v. Mississippi, &c. 
R. R. Co., 36 Miss. 300; Bank of 
Hamilton v. Dudley's Lessee, 2 Pet. 
526. " To the extent of the collision 
and repugnancy, the law of the State 
must yield; and to that extent, and no 
further, it is rendered by such repug- 
nancy inoperative and void." Com- 
monwealth V. Kimball, 24 Pick. 361, 
per Shaw, Ch. J. ; Norris v. Boston, 
4 Met. 288; Eckhart v. State, 5 W. 
Va. 515. 

2 Commonwealth v. Hitchings, 5 
Gray, 485. See People v. Briggs, 50 
N. Y. 566. Although a proviso is 
ineffectual because uncdnstitutional, 
it cannot be disregarded when the 
intention of the legislature is in ques- 
tion. Commonwealth v. Potts, 79 
Penn. St. 164. 

* Commonwealth v. Hitchings, 5 
Gray, 485 ; Willard v. People, 5 111. 
470; Eells v. People, 5 111. 512; Rob- 
inson V. Bidwell, 22 Cal. 379; State 
V. Easterbrook, 3 Nev. 173 ; Hagers- 
town V. Dechert, 32 Md. 369. 



216 



CONSTITUTIONAL LIMITATIONS. 



[cH. vn. 



with the apparent legislative intent, wholly independent of that 
which was rejected, it must be sustained. The difficulty is in 
determining whether the good and bad parts of the statute are 
capable of being separated within the meaning of this rulei. If 
a statute attempts to accomplish two or more objects, and is void 
as to one, it may still be in every respect complete and valid as to 
the other. But if its purpose is to accomplish a single object 
only, and some of its provisions are void, the whole must fail 
unless sufficient remains to effect the object without the aid of 
the invalid portion.^ And if they ftre so mutually connected 



^ Santo ». State, 2 Iowa, 165. But 
perhaps the doctrine of sustaining one 
part of a statute when the other is 
void was carried to an extreme in this 
case. A prohibitory liquor law had 
been passed which was not objection- 
able on constitutional grounds, except 
that the last section provided that 
" the question of prohibiting the sale 
and manufacture of intoxicating 
liquor" should be submitted to the 
electors of the State, and if it should 
appear " that a majority of the votes 
cast as aforesaid, upon said question 
of prohibition, shall be for the pro- 
hibitory liquor law, then this act shall 
take effect on the first day of July, 
1855." The court held this to be an 
attempt by the legislature to shift the 
exercise of legislative power from 
themselves to the people, and there- 
fore void; but tKey also held that the 
remainder of the act was complete 
without this section, and must there- 
fore be sustained on the rule above 
given. The reasoning of the court by 
which they are brought to this conclu- 
sion is ingenious; but one cannot 
avoid feeling, especially after reading 
the dissenting opinion of Chief Justice 
Wright, that by the decision the court 
gave e^eot to an act which the legis- 
lature did not design should take 
effect unless the result of the uncon- 
stitutional submission to the people 
was in its favor. See also Weir v. 
Cram, 37 Iowa, 649. For a similar 
ruling, see Maize v. State, 4 Ind. 



342 ; overruled in Meshmeier ». State, 
11 Ind. 482. And see State v. Dom- 
baugh, 20 Ohio, n. s. 173, where it 
was held competent to construe a part 
of an act held to be valid by an- 
other part adjudged unconstitutional, 
though the court considered it ' ' quite 
probable " that if the legislature had 
supposed they were without power to 
adopt the void part of the act, they 
would have made an essentially differ- 
ent provision by the other. See also 
People V. Bull, 46 N. Y. 68, where 
part of an act was sustained which 
probably would not have been adopted 
by the legislature separately. It must 
be obvious in any case where part of 
an act is set aside as unconstitutional, 
that it is unsafe to indulge in the same 
extreme presumptions in support of 
the remainder that are allowable in 
support of a complete act when some 
cause of invalidity is suggested to the 
whole of it. In the latter case, we 
know the legislature designed ' the 
whole act -to have effect, and we 
should sustain it if possible; in the 
former, we do not know that the leg- 
islature would have been willing that 
a part of the act should be sustained 
if the remainder were held void, and 
there is generally a presumption more 
or less strong to the contrary. While, 
therefore, in the one case the act should 
be sustained unless the invalidity is 
clear, in the other the whole should 
fall unless it is manifest the portion 
not opposed to the constitution can 



CH. Vn.] DECLARING STATUTES UNCONSTITUTIONAL. 217 

with and * dependent on each other, as conditions, con- [* 179] 
siderations, or compensations for each other, as to war- 
rant the belief that the legislature intended them as a whole, 
and if all could not be carried into effect, the legislature would 
not pass the residue independently, then if some parts are uncon- 
stitutional, all the provisions which are thus dependent, condi- 
tional, or connected must fall with them.^ 

It has accordingly been held where a statute submitted to the 
voters of a county the question of the removal of their county 
seat, and one section imposed the forfeiture of certain vested 
rights in case the vote was against the removal, that this portion 
of the act being void, the whole must fall, inasmuch as the whole 
was submitted to the electors collectively, and the threatened 
forfeiture would naturally affect the result of the vote.^ 

And, where a statute annexed to the city of Racine certain 
lands previously in the township of Racine, but -contained an 
express provision that the lands so annexed should be taxed at a 
different and less rate than other lands in the city ; the latter 
provision being, held unconstitutional, it was also held that the 
whole statute must fail, inasmuch as such provision was clearly 
intended as a compensation for the annexation.^ 

And where a statute, in order to obtain a jury of six 
persons, * provided for the summoning of twelve jurors, [* 180] 
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 re- 
jected and the statute sustained, inasmuch as this would be 
giving to it a construction and effect different from that the legis- 
lature designed ; and would deprive the parties of the means of 
obtaining impartial jurors which the statute had intended to give.* 

stand by itself, and that in the legis- " State v. Commissioners of Perry 

lative intent it was not to be controlled County, 5 Ohio, n. s. 507. And see 

or modified in its construction and Jones v. Robbins, 8 Gray, 338 ; Mon- 

efEect by the part which was void. roe v. Collins, 17 Ohio, n. s. 666, 

1 Warren w. Mayor, &c of Charles- 684; Taylor v. Commissioners of 

town, 2 Gray, 99 ; State v. Commis- Ross County, 23 Ohio, n. s. 22, 84. 
sioners of Perry County, 5 Ohio, n. s. * Slauson v. Racine, 13 Wis. 398, 

507; Slauson v. Racine, 13 Wis. 398; followed in State v. Dousman, 28 

Allen County Commissioners v. Sil- Wis. 547. 

vers, 22 Ind. 491 ; Garrard Co. Court v. * Campau v. Detroit, 14 Mich. 

Navigation Co., 10 Am. Law Reg. 272. See Commonwealth v. Potts, 

N. 8. 160; Eckhart v. State, 5 W. 79 Penn. St. 164. 
Va. 5;5. 



218 CONSTITUTIONAL LIMITATIONS. [CH. VH. 

On tlie other hand, — to illustrate how Intimately the valid and 
invalid portions of a statute maybe associated, — a section of 
the criminal code of Illinois provided that " if any person shall 
harbor or secrete any negro, mulatto, or person of color, the 
same being a slave or servant, owing service or labor to any other 
persons, whether they reside in this State or in any other State, 
or Territory, or district, within the limits and under the jurisdic- 
tion of the United States, or shall in any wise hinder or prevent 
the lawful owner or owners of such slaves or servants from re- 
taking them in a lawful manner, every person so offending shall 
be deemed guilty of a misdemeanor," &c., and it was held that, 
although the latter portion of the section was void within the 
decision in Prigg v. Pennsylvania,^ yet that the first portion, ' 
being a police regulation for the' preservation of order in the 
State, and important to its well-being, and capable of being 
enforced without reference to the rest, was not affected by the 
invalidity of the rest.^ 

A legislative act may be entirely valid as to some classes of 
cases, and clearly void as to others. A general law for the pun- 
ishment of offences, which should endeavor to reach, by its 
retroactive operation, acts before committed, as well as to pre- 
scribe a rule of conduct for the citizen in the future, would be 
void so far as it was retrospective, but such invalidity would not 
affect the operation of the law in regard to the cases which were 
within the legislative control. A law might be void as violating 
the obligation of existing contracts, but valid as to all contracts 
which should be entered into subsequent to its passage, and 
which therefore would have no legal force except such as the 
law itself would allow.^ In any such case the unconstitutional law 
must operate as far as it can,* and it will not be held invalid on 

1 16 Pet. 539. elected to take lands belonging to the 

2 Willard v. People, 5 111. 470; city. Held, that the act was not 
Eells V. People, 5 111. 512. See Hag- wholly void for the omission to pro- 
erstown v. Dechert, 32 Md. 369. vide compensation in case the lands of 

8 Mundy v. Monroe, 1 Mich. 68 ; individuals had been selected. 
Cargill V. Power, 1 Mich. 369. In * Baker v. Braman, 6 Hill, 47. 

People V. Rochester, 50 N. Y. 525, The case of Sadler v. Langham, 34 

certain commissioners were appointed Ala. 333, appears to be opposed to 

to take for a city hall, either lands this principle, but it also appears to 

belonging to the city or lands of indi- us to be based upon cases which are 

viduals. The act made no provision not applicable, 
for compensation . The commissioners 



CH. Vn.] DECLARING STATUTES UNCONSTITUTIONAL. 219 

the objection * of a party whose interests are not affected [* 181] 
by it in a manner which the . constitution forbids. If 
there are any exceptions to this rule, they must be of cases only 
where it is evident, from a contemplation of the statute and of 
the purpose to be accomplished by it, that it would not have 
been passed at all, except as an entirety, and that the general 
purpose of the legislature will be defeated if it shall be held 
valid as to some cases and void as to others. 



Waiving a Constitutional Objection. 

There are cases where a law in its application to a particular 
case must be sustained, because the party who makes objection 
has, by prior action, precluded himself from being heard against 
it. 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 has 
been held that an act appropriating the private property of one 
person for the private purposes of another, on compensation 
made, was valid if he whose property was taken assented thereto ; 
and that he did assent and waive the constitutional privilege, if 
he received the compensation awarded, or brought an action to 
recover it.^ 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 un- 
constitutionality is removed.2 And whete parties were author- 
ized by statute to erect a dam across a river, provided they should 
first 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 dam, the damages to be assessed by a justice 
of the peace, and the dam was erected and damages assessed as 
provided by the statute, it was held, in an action on the bond to 
recover those damages, that the party erecting the dam and who 

1 Baker v. Braman, 6 Hill, 47. Ohio Kailroad Co. v. State, 29 Ala. 

2 Embury v. Conner, 3 N. Y. 511. 586 ; Detmold v. Drake, 46 N. Y. 
And see Heyward v. Mayor, &c. of 318. 

New York, 8 Barb. 489 ; Mobile and 



220 CONSTITUTIONAL LIMITATIONS. [CH. VII. 

had received the benefit of the statute, was precluded by his 
action from contesting its validity, and could not insist upon his 

right to a common-law trial by jury.^ In these and the 
[* 182] like cases the statute must be read with * an implied 

proviso that the party to be affected shall assent thereto ; 
and such consent removes all obstacle, and lets the statute in to 
operate the same as if it had in terms contained the condition.^ 
In criminal cases, however, the doctrine that a constitutional 
privilege may be waived must be true to a very limited extent 
only. A party may consent to waive rights of property, but the 
trial and punishment for public offences are not within the prov- 
ince of individual consent or agreement. 

Judicial Doubts on Constitutional Questions. 

It has been said by an eminent jurist, that when courts are 
called upon to pronounce the invalidity of an act of legislation, 
passed with all the forms and ceremonies requisite to give it the 
force of law, they will approach the question with great caution, 
examine it in every possible aspect, and ponder u^on 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.* 

I People V. Murray, 5 Hill, 468. « Cooper v. Telfair, 4 Dall. 18; 

See Lee ». Tillotson, 24 Wend. 339. Dow ». Norris, 4 N. H. 16; Flint 

" Embury v. Conner, 3 N. Y. 518. River Steamboat Co. v. Foster, 5 Geo. 
And see Matter of Albany St., 11 194; Carey ». Giles, 9 Geo. 258; Macon 
Wend. 149 ; Chamberlain v. Lyell, 3 -and Western Railroad Co. v. Davis, 
Mich. 448 ; Beeoher v. Baldy, 7 Mich. 13 Geo. 68 ; Franklin Bridge Co. v. 
488; Mobile and Ohio Railroad Co. v. Wood, 14 Geo. 80; Kendall v. Kings- 
State, 29 Ala. 586; Detmoldu. Drake, ton, 5 Mass. 524; Foster v. Essex 
46 N. Y. 818; Haskell v. New Bed- Bank, 16 Mass. 245; Norwich ». 
ford, 108 Mass. 208. County Commissioners of Hampshire, 

» Wellington, Petitioner, 16 Pick. 13 Pick. 61 ; Hartford Bridge Co. ». 

95, per STiaw, Ch. J. See Brown v. Union Ferry Co., 29 Conn. 227; Rich 

Buzan, 24 Ind. 194. If an act may v. Flanders, 89 N. H. 312 ; Eason o. 

be valid or not according to the cir- State, 6 Eng. 481 ; Hedley v. Com- 

oumstances, a court would be bound missioners of Franklin Co., 4 Blackf. 

to presume that such circumstances 116; Stocking v. State, 7 Ind. 327; 

existed as would render it valid. Tal- La Fayette ». Jenners, 10 Ind. 79; Ex 

bot V. Hudson, 16 Gray, 417. parte McCollum, 1 Cow. 564; Coutant 



CH. Vn.] DECLAKING STATUTES TTNGONSTITUTIONAL. 221 

" The question whether a law be void for its repugnancy to 
the constitution is at all times a question of much delicacy, which 
ought seldom, if ever, to be decided in the affirmative in a doubt- 
•ful case. The court when impelled by duty to render such a 
judgment would be unworthy of its station could it be 
unmindful * of the solemn obligation which that station [* 183] 
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 ifcs acts to be considered as void. The 
opposition between the constitution and the law should be such 
that the judge feels a clear and strong conviction of their incom- 
patibility with each other." ^ Mr. Justice Washington gives a 
reason for this rule, which has been repeatedly recognized in 
other cases which we have cited. After expressing the opinion 
that the particular question there presented, and which regarded 
the constitutionality of a State law, was involved in difficulty 
and doubt, he says : " But if I could rest my opinion in favor of 
the constitutionality of the law on which the question arises, on 
no other ground than this doubt so felt and acknowledged, that 
alone would, in my estimation, be 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 favor 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 inte'g- 
rity, and with a just desire to keep within the restrictions laid 

V. People, 11 Wend. 511; Clark v. son, 1 Kan. 17; Eyre v. Jacob, 14 

People, 26 Wend. 606 ; Morris ». Grat. 426 ; Gormley v. Taylor, 44 

People, 3 Denio, 381 ; N. Y., &o. Geo. 76 ; State v. Cape Girardeau, &c. 

R. R. Co. ». Van Horn, 57 N. Y. 473 ; R. R. Co., 48 Mo. 468; Oleson v. 

Baltimore o. State, 15 Md. 376 ; Cot- Railroad Co., 36 Wis. 383; Newsom v. 

ton V. Commissioners of Leon Co., 6 Cocke, 44 Miss. 352; Slack v. Jacob, 

Fla. 610; Cheney v. Jones, 14 Fla. 8 W. Va. 612 ; Commonwealth v. 

587; Lane v. Dorman, 4 111. 238; Moore, 25 Grat. 951. 
Newland v. Marsh, 19 111. 381; Far- i Fletcher v. Peck, 6 Cranch, 128, 

mers' and Mechanics' Bank v. Smith, per Marshall, Ch. J. 
3 S. & R. 63; Weister v. Hade, 52 ^ Ogden v. Saunders, 12 Wheat. 

Penn. St. 477; Sears v. Cottrell, 5 270. See Kellogg w. State Treasurer, 44 

Mich. 251; People v. Tyler, 8 Mich. Vt. 356, 359; Slacks. Jacob, 8 W. Va. 

320; Allen County Commissioners ». 612. 
Silvers, 22 Ind. 491; State v. Robin- 



222 CONSTITUTIONAL LIMITATIONS. [CH. YU. 

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 responsible duties, as to 
some of which their acts are not subject to judicial scrutiny, and' 
bhey legislate under the solemnity of an official oath, which it is 
not to be supposed they will disregard. It must, therefore, be 
supposed that their own doubts of the constitutionality of their 
action have been deliberately solved in its favor, so that the 
courts may With some confidence repose upon their conclusion, 
as one based upon their best judgment. For although it is plain, 
upon the authorities, that the courts should sustain legislative 
action when not clearly satisfied of its invalidity, it is equally 
plain in reason that the legislature should abstain from adopting 
3uch action if not fully assured of their authority to do so. 

Respect for the instrument under which they exercise 
[*184] their power should impel the * legislature in every case 

to solve their doubts in its favor, and it is only because 
we are to presume they do so, that courts are warranted in giving 
weight in any case to their decision. If it were understood that 
legislators refrained from exercising their judgment, or that, in 
Bases 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 springs 
from an endeavor to arrive at the true interpretation of the con- 
stitution, or from a consideration of the law after the meaning of 
the constitution has been jud,icially determined. It has some- 
times 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 legislature should put one interpretation upon the consti- 
tution at one time and a different one at another. But the de- 
cided cases do not sanction this rule,^ and the difficulty suggested 
is rather imaginary than real, since it is but reasonable to expect 

1 See upon this subject what is New York, 5 Sandf. 14; Clark v. 
said in Osbourn u. Staley, 5 W. Va. People, 26 Wend. 606; Baltimore 
85. V. State, 15 Md. 457. 

2 Sun Mutual Insurance Co. v. 



CH. Vn.] DECLAEING STATUTES UNCOKSTITUTIONAL. 223 

that, where a construction has once been placed upon a con- 
stitutional provision, it will be followed afterwards, even though 
its original adoption may have sprung from deference to legisla- 
tive action rather than from settled convictions in the judicial 
mind.' 

The duty of the court to uphold a statute when the conflict 
between it and the constitution is not clear, and the implication 
which must always exist that no violation has been intended by- 
the legislature, may require it in some cases, where the meaning 
of the constitution is not in doubt, to lean in favor of such a 
construction of the statute as might not at first view seem most 
obvious and natural. For as a conflict between the statute and 
the constitution is not to be implied, it would seem to follow, 
where the meaning of the constitution is clear, that the court, if 
possible, must give the statute such a construction as will enable it to 
have effect. This is only saying, in another form of words, that 
the court must construe the statute in accordance with 
the legislative * intent ; since it is always to be pre- [* 185] 
sumed the legislature designed, the statute to take effect, 
and not to be a nullity. 

The rule upon this subject is thus stated by the Supreme 
Court of Illinois : " Whenever an act of the legislature can be so 
construed and applied as to avoid conflict with the constitution 
and give it the force of law, such construction will be adopted by 
the courts. Therefore, acts of the legislature, in terms retro- 
spective, and which, literally interpreted, would invalidate and 
destroy vested rights, are upheld by giving them prospective op- 
eration only ; for, applied to, and operating upon, future acts and 
transactions only, they are rules of property under and subject to 
which the citizen acquires property fights, and are obnoxious to 
no constitutional limitation ; but as retroactive laws, they reach 
to and destroj?^ existing rights, through force of the legislative will, 
without a hearing or judgment of law. So will acts of the legis- 
lature, 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 weapons destructive of vested rights thiey are void ; and such 

1 People V. Blodgett, 13 Mich. 162. 



224 CONSTITUTIONAL LIMITATIONS. [CH. VU. 

force only -will be given the acts as the legislature could impart 
to them." 1 

The Supreme Court of New Hampshire, a similar question 
being involved, recognizing their obligation " so to construe every 
act of the legislature as to make it consistent, if it be possible, 
with the provisions of the constitution," proceed to the examina- 
tion of a statute by the same rule, " without stopping to inquire 
what construction might be warranted by the natural import of 
the language used." ^ 

And it is said by Harris, J., delivering the opinion of the ma- 
jority of the Court of Appeals of New York : " A legislative act 
is not tb 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 
[* 186] presumption." ^ And this after all is only * the applica- 
tion of the familiar rule, that in the exposition of a stat- 
ute it is the duty of the court to seek to ascertain and carry out 
bhe intention of the legislature in its enactment, and to give full 
effect to such intention ; and they are bound so to construe the 
statute, if practicable, as to give it force and validity, rather than 
to avoid it, or render it nugatory.* 

The rule is not different when the question is whether any 
portion of a statute is void, than when the whole is assailed. The 
3xcess of power, if there is any, is the same in either case, and is 
aot to be applied in any instance. 

And on this ground it has been held that where the repealing 
3lause in an unconstitutional statute repeals all inconsistent acts, 
the repealing clause is to stand and have effect, notwithstanding 
;he invalidity of the rest.^ But other cases hold that such repeal- 
ng clause is to be understood as designed to repeal all conflicting 
provisions, in order that those of the new statute can have effect ; 
md that if the statute is invalid, nothing can conflict with it, and 

1 Newland v. Marsh, 19 111. 384. » People v. Supervisors of Orange, 
See also Bigelow v. West Wisconsin 17 N. Y. 241. 

R. R. Co., 27 Wis. 478; Attorney- * Clarke v. Rochester, 24 Barb. 
General v. Eau Claire, 37 Wis. 400. 471. See Marshall i>. Grimes, 41 

2 Dow V. Norris, 4 N. H. 17. See Miss. 27. 

Dubuque v. Illinois Cent R. R. Co., » Meshmeier v. State, 11 Ind. 489; 
!9 Iowa, 56. Ely v. Thompson, 3 A. K. Marsh. 70. 



CH. Vn.] DECLARING STATUTES UNCONSTITtTTIONAL. 225 

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. 

Inquiry into Legislative Motives. 

From what examination has been given to this subject, it 
appears that whether a statute is constitutional 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, has 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 
assume that legislative discretion has been properly exer- 
cised.2 * If evidence was required, it must be supposed [* 187] 
that it was before the legislature when the act was passed ; ^ 
and if any special finding was required to warrant the passage of 
the particular act, it would seem that the passage of the act itself 
might be held equivalent to such finding.* And although it has 

1 Shepardson v. Milwaukee and " corporations not possessing banking 
Beloit Railroad Co., 6 Wis. 605 ; powers or privileges may be formed 
State V. Judge of County Court, 11 under general laws, but shall not be 
Wis. 50 ; Tims v. State, 26 Ala. 165 ; created by special acts, except for 
Sullivan «. Adams, 3 Gray, 476 ; De- municipal purposes, and in cases 
voy V. Mayor, &c. of New York, 35 where, in the judgment of the Gen- 
Barb. 264; Campau v. Detroit, 14 eral Assembly, the objects of the 
Mich. 276; Childs ». Shower, 18 Iowa, corporation cannot be attained under 
261; liarbeok w. New York, 10 Bosw. general laws." A special charter 
386. being passed without any legislative 

2 People V. Lawrence, 36 Barb, declaration that its object could not 
193; People v. New York Central be attained under a general law, the 
Kailroad Co., 34 Barb. 137; Balti- Supreme Court sustained it, but 
more v. State, 15 Md. 376 ; Goddin placed their decision mainly on the 
V. Crump, 8 Leigh, 154. ground that the clause had been 

8 De Camp v. Eveland, 19 Barb, wholly disregarded, "and it would 
81; Lusher «. Scites, 4 W. Va. 11. now produce far-spread ruin to de- 

* Johnson v. Joliet and Chicago clare such acts unconstitutional and 
Railroad Co., 23 111. 207. The Con- void." It is very clearly intimated in 
stitution of Illinois provided that the opinion, that the legislative prao- 

15 



226 



CONSTITUTIONAL LIMITATIONS. 



[CH. vn. 



sometimes been urged at the bar that the courts ought to inquire 
into the motives of the legislature where fraud and corruption were 
alleged, and annul their action if the allegation were established, 
the argument has in no case been acceded to by the judiciary, and 
they have never allowed the inquiry to be entered upon.^ The 



tioe, and this decision sustaining it, 
did violence to the intent of the con- 
stitution. A provision in the Consti- 
tution of Indiana that "no act shall 
take effect until the same shall have 
been published and circulated in the 
several jjounties of this State, by au- 
thority, except in case of emergency," 
adds the words, "which emergency 
shall be declared in the preamble, or 
in the body of the law ; " thus clearly 
making the legislative declaration 
necessary. Carpenters. Montgoibery, 
7 Blackf. 415 ; Mark v. State, 15 Ind. 
98 ; Hendrickson v. Hendrickson, 7 
Ind. 13. 

1 Sunbury and Erie Railroad Co. 
V. Cooper, 33 Penn. St. 278 ; Ex parte 
Newman, 9 Cal. 502 ; Baltimore v. 
State, 15 Md. 376 ; Johnson v. Hig- 
gins, 3 Met. (Ky.) 566. " The courts 
cannot impute to the legislature any 
other but public motives for their 
acts." People v. Draper, 15 N. Y. 
545, per Denio, Ch. J. " We are not 
made judges of the motives of the 
legislature, and the court will not 
asurp the inquisitorial office of in- 
quiry into the bona fides of that body 
in discharging its duties." Shank- 
land, J., in the same case, p. 555. 
'The powers of the three depart- 
ments are not merely equal ; they are 
sxclusisye in a-espect to the duties as- 
signed to eaoh. They are absolutely 
independent of each other. It is now 
proposed that one of the three powers 
)hall institute an inquiry into the 
ionduct of another department, and 
lorm an issue to try by what motives 
;he legislature were governed in the 
inactment of a law. If this may be 
lone, we may also inquire by what 
notives the executive is induced to 



approve a bill or withhold his ap- 
proval, and in case of withholding it 
corruptly, by our mandate compel its 
approval. To institute the proposed 
inquiry would be a direct attack upon 
the independence of the legislature, 
and a usurpation of power subversive 
of the constitution." Wright v. 
Defrees, 8 Ind. 302, per Gookins, J. 
" We are not at liberty to inquire 
into the motives of the legislature. 
We can only examine into its power 
under the constitution." Per Chase, 
Ch. J., in Ex parte Mc Cardie, 7 Wall. 
514. The same doctrine is restated 
by Mr. Justice Hunt, in Doyle v. 
Continental Ins. Co., 94 U. S. Rep. 
535; Albany Law Journal, Vol. XV. 
p. 267. And see McCuUoch v. State, 
11 Ind. 431 : Bradshaw v. Omaha, 
1 Neb. 16; Lyon v. Norris, 15 Geo. 
480 ; People v. Flagg, 46 N. Y. 401 ; 
Slack V. Jacob, 8 W. Va. 612, 635; 
State V. Cardozo, 5 S. C. n, s. 297; 
Humboldt County v. Churchill County 
Comm'rs, 6 Nev. 30 ; Flint, &c. 
Plank Road Co. v. WoodhuU, 25 
Mich. 103 ; State v. Fagan, 22 La. 
Ann. 545 ; State v. Hays, 49 Mo. 607. 
In Jones v. Jones, 12 Penn. St. 350, 
the general principle was recognized, 
and it was decided not to be compe- 
tent to declare a legislative divorce 
void for fraud. It was nevertheless 
held competent to annul it, on the 
ground that it had been granted (as 
shown by parol evidence) for a cause 
which gave the legislature no juris- 
diction. The legislature was regarded 
as being for the purpose a court of 
limited jurisdiction. In Attorney- 
General V. Supervisors of Lake Co., 
83 Mich. 11, it is decided that when 
supervisors and people, having full 



CH. VII.] DECLAEING STATUTES UNCONSTITUTIONAL. 227 

reasons are the same here as those which preclude an inquiry into 
the motives of the governor in the exercise of a discretion vested 
in him exclusively. He is responsible for, his acts in such a case 
not to the courts, but to the people.^ 



Consequences if a Statute is Void. 



[* 188] 



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 
decision 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 unconsti- 
tutional, and which, consequently, is to be regarded as having 
never, at any time, been possessed of any legal force. 



authority over the subject, have acted 
upon the question of removal of a 
county seat, no question of motive 
can be gone into to invahdate their 
action. 

1 Attorney- General v. Brown, 1 
Wis. 522 ; Wright v. Defrees, 8 Ind. 
302. 

2 Serong ». Daniel, 5 Ind. 348; 
Astrom v. Hammond, 8 McLean, 107 ; 
Woolsey v. Commercial Bank, 6 Mc- 
Lean, 142 ; Detroit v. Martin, 34 
Mich. 170; Hoover v Barkhoof, 44 
N. Y. 113; Clark ». Miller, 54 N. Y. 
528 ; Sumner v. Beeler, 50 Ind. 341 ; 
Meagher v. Storey Co., 5 Nev. 244. 
But one acting as an officer under an 
unconstitutional law was held in 
Commonwealth v. McCombs, 56 Penn. 
St. 436, to be an officer de facto. 
This could hardly be so, however, if 
tlie law creating the office was un- 
constitutional. There can be no 



officer defcicto when there is no office. 
See Carleton v. People, 10 Mich. 250. 
In People v. Salomon, 54 111. 46, a 
ministerial officer was severely cen- 
sured for presuming to disregard a 
law as unconstitutional. The court 
found it to be valid, but if they had 
held the contrary, the officer cer- 
tainly could not have been punished 
for anticipating their decision in his 
own .action. ' In Texas it is held that 
an act held unconstitutional must be 
deemed to have the force of law for 
the protection of officers acting under 
it up to the time of the decision de- 
clai^ng it void. Sessums v. Botts, 
34 Tex. 335. If a decision adjudging 
a statute unconstitutional is after- 
wards overruled, the statute is to be 
considered as having been in force for 
the whole period. Pierce v. Pierce, 
46 Ind. 86. 



228 CONSTITUTIONAL LIMITATIONS. [CH. Vin. 



[*189] * CHAPTER VIIL 

THE SEVERAL GRADES OF MUNICIPAL GOVERNMENT. 

In the examination of American constitutional law, we shall 
not fail to notice the care taken and the means adopted to bring 
the agencies by which power is to be exercised as near as possible 
to the subjects upon which the power is to operate. 

In contradistinction to those governments where power is 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 under the control of this idea that a national constitution 
was formed, under which the States, while yielding to the na- 
tional government complete and exclusive jurisdiction over exter- 
nal affairs, conferred upon it such powers only, in regard to matters 
of internal regulation, as seemed to be essential to 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 arrange- 
ment, to subdivide their territory into counties, towns, road and 
school districts, and to confer upon each powers of local legisla- 
tion, and also to incorporate cities, boroughs, and villages where- 
ever a dense population renders different rules important from 
those which are needful for the rural districts. 

The system is one which almost seems a part of the very nature 
of the race to which we belong. A similar subdivision of the 
realm for the purposes of municipal government has existed in 
England from the earliest ages ; ^ and in America, the first settlers, 

1 Crabbe'sHistoi-y of English Law, Vaughan's Revolutions in English 
c. 2; 1 Bl. Com. 114; Hallam's Mid- History, b. 2, c. 8; Frothingham's 
die Ages, o. 8, pt. 1; 2 Kent, 278; Rise of the Republic,- 14, 15. 



CH.VIII.] THE GRADES OF MXJNICIPAL GOVERNMENT. 



229 



as if instinctively, adopted it in their frame o"f govern- 
ment, and * no other has ever supplanted it, or even found [* 190] 
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 authority ; ^ 
but in all, the final result was substantially the same, that towns, 
villages, boroughs, cities, and counties exercised the powers of 
local government, and the Colony or State the powers of a more 
general nature.^ 



^-For an interesting history of the 
legislation in Connecticut on this sub- 
ject, see Webster v. Harwinton, 32 
Conn. 131. In New Hampshire, see 
Bow .». AUenstown, 34 N. H. 351. 
The learned note to Commonwealth 
V. Roxbury, 9 Gray, 503, will give 
similar information concerning the 
organization and authority of towns 
in the Massachusetts provinces. And 
see People v. Hurlbut, 24 Mich. 98. 
Mr. Elliott well says : " The prime 
strength of New England and of the 
whole republic was and is in the munic- 
ipal governments and in±he homes." 
And he adds, that among the earliest 
things decided in Massachusetts was, 
" that trivial things should be ended 
in towns." (1635.) Elliott's New 
England, Vol. I. p. 182. 

" Rhode Island; see Arnold's His- 
tory, c. 7. It is remarked by this 
author that, when the charter of 
Rhode Island was suspended to bring 
the Colony under the dominion of 
Andros, " the American system oftofwn 
governments, which necessity had com- 
pelled Rhode Island to initiate fifty 
years before, became the means of 
preserving the individual liberty of 
the citizen when that of the State or 
Colony was crushed." Arnold, Vol. 
I. p. 487. 

" " The townships," says De 
Tocqneville, "are only subordinate 
to the State in those interests which 
I shall term social, as they are com- 
mon to all of the citizens. They are 
independent in all that concerns them- 



selves, and among the inhabitants of 
New England I believe that not a man 
is to be found who would acknowl- 
edge that the State has any right to 
interfere in their local interests. The 
towns of New England buy and sell, 
prosecute or are indicted, augment 
or diminish their rates, without the 
slightest opposition on the part of the 
administrative authority of the State. 
They are bound, however, to comply 
with the demands of the community. 
If a State is in need of money, a town 
can neither give nor withhold the 
supplies. If a State projects a road, 
the township cannot refuse to let it 
cross its territory ; if a police regula- 
tion is made by the State, it must be 
enforced by the town. A uniform 
system of instruction is organized all 
over the country, and every town is 
bound to establish the schools which 
the law ordains. . . . Strict as this 
obligation is, the government of the 
State imposes it in principle only, and 
in its performance the township as- 
sumes all its independent rights. 
Thus taxes are voted by the State, 
but they are assessed and collected 
by the township ; the existence of a 
school is obligatory, but the township 
builds, pays, and superintends it. In 
France, the State collector receives 
the local imposts ; in America, the 
town collector receives the taxes of 
the State. Thus the French govern- 
ment lends its agents to the commune ; 
in America, the township is the agent 
of the government. The fact alone 



280 * CONSTITUTIONAL LIMITATIONS. [CH. Vin. 

The several State constitutions have been framed with this 
system in view, and the delegations of power which they make, 
and the express and implied restraints which they impose there- 
upon, can only be correctly understood and construed by keeping 
in view its present existence and anticipated continuance. There 
are few of the general rules of constitutional law that are not 
more or less affected by the fact that the powers of government, 
instead of being concentrated in one body of men, are carefully 
distributed, with a view to being exercised with intelli- 
[* 191] gence, * economy, and facility, and as far as possible by 
the persons most directly and immediately interested. 

It has already been seen that the legislature cannot delegate its 
power to make laws ; but fundamental as this maxim is, it is so 
qualified by the customs of our race, and by other maxims which 
regard local government, that the right of the legislature, in the 
entire absence of authorization or prohibition, to create towns and 
other inferior municipal organizations, and to confer upon them 
the powers of local government, and especially of local taxation 
and police regulation usual with such corporations, would always 
pass unchallenged. The legislature in these cases is not regarded 
as delegating its authority, because the regulation of such local 
affairs as are commonly left to local boards and ofQcers is not un- 
derstood to belong properly to the State ; and when it interferes, 
as sometimes it must, to restrain and control the local action, 
there should be reasons of State policy or dangers of local abuse 
to warrant the interposition.^ 

shows the extent of the differences more to . promote civilization than all 
■which exist between the two nations." other causes combined; which has 
Democracy in America, c. 5. See been constantly exercised in every 
Frothingham's Rise of the Republic, part of our country from its earliest 
14-28. settlement, and which has raised up 
* "It seems to be generally con- among us many of our most valuable 
ceded that powers of local legislation institutions." State v. Noyes, 10 
may be granted to cities, towns, and Fost. 292, per Bell, J. See also Tan- 
other municipal corporations. And ner w. Trustees of Albion, 5 Hill, 121; 
it would require strong reasons to Dalby v. Wolf, 14 Iowa, 228; State 
satisfy us that it could have been the v. Simonds, 3 Mo. 414; McKee v. 
design of the framers of our oonstitu- McKee, 8 B. Monr. 433 ; Smith v. 
tion to take from the legislature a Levinus, 8 N. Y. 472; Peopje v. Dra- 
power which has been exercised in per, 15 N. Y. 532; Burgess v. Pue, 
Europe by governments of all classes 2 Gill, 11; New Orleans v. Turpin, 
from the earliest history, and the 18 La. Ann. 56 ; Gilkeson v. The 
exercise of which has probably done Frederick Justices, 13 Grat. 577 ; 



CH. Vni.] THE GRADES OP MUNICIPAL , GOVEENMBKT. 231 

The people of the municipalities, however, do not define for 
themselves their own rights, privileges, and powers, nor is there 
any common law which draws a definite line of distinction be- 
tween the powers which may be exercised by the State, and those 
which must be left to the local governments.^ The municipalities 
must look to the State for such charters of government as the 
legislature shall see fit to provide ; and they cannot prescribe for 
themselves the details, though they have a right to expect that 
those charters will be granted with a recognition of the 
general * principles with which we are familiar. The [* 192] 
charter, or the general law under which they exercise 
their powers, is their constitution, in which they must be able to 
show authority for the acts they assume to perform. They have 
no inherent jurisdiction to make laws or adopt regulations of 
government ; they are governments of enumerated powers, act- 
ing by a delegated authority ; so that while the State legislature 
may exercise such powers of government coming within a proper 
designation of legislative power as are not expressly or impliedly 
prohibited, the local authorities can exercise those only which 
are expressly or impliedly conferred, and subject to such regula- 
tions or restrictions as are annexed to the grant.^ 

The creation of municipal corporations, and the conferring 
upon them of certain powers and subjecting them to correspond* 
ing duties, does not deprive the legislature of the State of that 
general control over their citizens which was before possessed. 

Mayor, &c. of New York v. Ryan, 2 164; Goldthwaite v. Montgomery, 50 

E. D. Smith, 368; St. Louis v. Rus- Ala. 486; Cross v. Hopkins, 6 W. Va. 

sell, 9 Mo. 503; Bliss v. Kraus, 16 323. 

Ohio, N. 8. 55 ; Trigally v. Memphis, ^ As to the common law affecting 

6 Cold. 382; Durach's Appeal, 63 these corporate existences, and the 

Penn. St. 491; State v. Wilcox, 45 effect of usage, see 2 Kent, 278, 279. 

Mo. 458; Jones v. Richmond, 18 ^ Stetson v. Kempton, 13 Mass. 

Grat. 517; State v. Neill, 24 Wis. 272; Willard o. Killingworth, 8 Conn. 

149; Bradley ». M'Atee, 7 Bush, 667; 254; Abendroth ». Greenwich, 29 

8. c. 3 Am. Rep. 309; Burckholter w. Conn. 363; Baldwin ». North Bran- 

M'Connellsville, 20 Ohio, 308; People ford, 32 Conn. 47; Webster ». Har- 

V. Hurlbut, 24 Mich. 108; s. c. 9 Am. - winton, 32 Conn. 131 ; Douglass v. 

Rep. 103; Mills v. Charleton, 29 Wis. Placerville, 18 Cal. 643; Lackland ». 

415; Commonwealth ». Coyningham, Northern Missouri Railroad Co., 31 

65 Penn. St. 76; People v. Kelsey, 34 Mo. 180; Mays v. Cincinnati, 1 Ohio, 

Cal. 470; Tugman v. Chicago, 78 111. n. s. 268 ; Frost v. Belmont, 6 Allen, 

405; Manley v. Raleigh, 4 Jones Eq. 152; Hess v. Pegg, 7 Nev. 23; Ould 

370 ; Stone v. Charlestown, 114 Mass. v. Richmond, 23 Grat. 464 ; Young- 

214; Hayden v. Goodnow, 39 Conn, blood v. Sexton, 32 Mich. 406. 



232 



CONSTITUTIONAL LIMITATIONS. 



[CH. VIII. 



It still has authority to amend their charters, enlarge or diminish 
their powers, extend or limit their boundaries, consolidate two 
or more into one, overrule their legislative action whenever it is 
deemed unwise, impolitic, or unjust, and even abolish them alto- 
gether in the legislative discretion, and substitute those which are 
different.! The rights and franchises of such a corporation, 



1 St. Louis V. Allen, 13 Mo. 400; 
Coles V. Madison Co., Breese, 115; 
Richland County v. Lawrence County, 
12 111. 1; Trustees of Schools v. Tat- 
man, 13 111. 27; Robertson v. Rock- 
ford, 21 111. 1 ; People e. Power, 25 
111. 187; St. Louis v. Russell, 9 Mo. 
503; State v. Cowan, 29 Mo. 330 
McKim V. Odorn, 3 Bland, 407 
Granby v. Thurston, 23 Conn. 416 
Harrison Justices v. Holland, 3 Grat 
247 ; Brighton v. Wilkinson, '2 Allen 
27; Sloan v. State, 8 Blackf. 361 
Mills V. Williams, 11 Ired. 558; Lang 
worthy v. Dubuque, 16 Iowa, 271 
Weeks ». Milwaukee, 10 Wis. 242 
State V. Branin, 23 N. J. 484; Pat- 
terson u. Society, &c., 24 N. J. 385 
Atchison v. Bartholow, 4 Kan. 124 
City of St. Louis v. CafEerata, 24 Mo 
94; People v. Draper, 15 N. Y. 532 
Hawkins v. Commonwealth, 76 Penn 
St. 151; People v. Tweed, 63 N. Y, 
202 ; Barnes v. District of Columbia 
91 U. S. Rep. 540 ; Laramie Co. v. 
Albany Co., 92 U. S. Rep. 307 
Aspinwall v. Commissioners, &c., 22 
How. 364 ; Howard v. McDiamid, 26 
Ark. 100; Philadelphia v. Fox, 64 
Penn. St. 169 ; Bradshaw v. Omaha, 
1 Neb. 16 ; Kuhn v. Board of Educa- 
tion, 4 W. Va. 499 ; Sinton v. Ash- 
bury, 41 Cal. 530; Hess v. Pegg, 7 
Nev. 23 ; Hagerstown ». Schuer, 37 
Md. 180; San Francisco v. Canavan, 
42 Cal. 541 ; State v. Jennings, 27 
Ark. 419; Division of Howard Co., 
15 Kan. 194; Martin v. Dix, 52 Miss. 
53 ; GofE v. Frederick, 44 Md. 67 ; 
Blessing v. Galveston, 42 Tex. 641. 
The legislature may in its discretion 
recall to itself and exercise so much 
of such powers as it has conferred 



upon municipal corporations as is not 
secured to them by the constitution. 
People V. Pinkney, 32 N. Y. 377. 
The creditors of a county cannot pre- 
vent the legislature reducing its limits, 
notwithstanding their security may be 
diminished thereby. Wade v. Rich- 
mond, 18 Grat. 583. Compare Milner 
V. Pensacola, 2 Woods, 632, and 
Galesburg v. Hawkinson, 75 lU. 152; 
Rader v. Road District, 36 N. J. 273. 
This power is not defeated or affected 
by the circumstance that the munic- 
ipal corporation was by its charter 
made the trustee of a charity; and in 
such case, if the corporation is abol- 
ished, the Court of Chancery may be 
empowered and directed by the repeal- 
ing act to appoint a new trustee to 
take charge of the property and exe- 
cute the trust. Montpelier v. East 
Montpelier, 29 Vt. 12. And see Har- 
rison V. Bridgeton, 16 Mass. 16; Mont- 
pelier Academy v. George, 14 La. Ann. 
406; Reynolds v. Baldwin, 1 La. Ann. 
162 ; Police Jury v. Shreveport, 5 La. 
Ann. 665; Philadelphia v. Fox, 64 
Penn. St. 180 ; Weymouth and Brain- 
tree Fire Commissioners v. County 
Commissioners, 108 Mass. 142. As to 
extent of power to hold property in 
trust, see Hatheway e. Sackett, 32 
Mich. 97. But neither the identity of 
a corporation, nor its right to take 
property by devise, is destroyed by a 
change in its name, or enlargement of 
its area, or an increase in the number 
of its corporators. Girard v. Phila- 
delphia, 7 Wall. 1. Changing a bor- 
ough into a city does not of itself 
abolish or affect the existing borough 
ordinances. Trustees of Erie Acad- 
emy V. City of Erie, 31 Penn. St. 515. 



CH. Vin.] THE GRADES OF MTJKICIPAL GOVBEKMENT. 



233 



being granted for the purposes of government^, can never 
* become such vested rights as against the State that they [* 193] 
cannot be taken away ; nor does the charter constitute 
a contract in the sense of the constitutional provision which 
prohibits the obligation of contracts being violated.^ Restraints 
on the legislative power of control must be found in the consti- 
tution of the"^tate, or they must rest alone in the legislative 
discretion.^ If the legislative action in these cases operates inju- 



Nor -will it affect the indebtedness of 
the corporation, which will continue 
to be its indebtedness under its new 
organization. Olney v. Harvey, 50 
111. 453. A general statute, contain- 
ing a clause repealing all statutes con- 
trary to its provisions, does not repeal 
a clause in a municipal charter on the 
same subject. State v. Branin, 23 
N. J. 484. 

1 This principle was recognized by 
the several judges in Dartmouth Col- 
lege V. Woodward, 4 Wheat. 518. 
And see People ». Morris, 13 Wend. 
331; St. Louis v. Russell, 9 Mo. 507; 
Montpelier v. East Montpelier, 29 Vt. 

12 ; Trustees of Schools v. Tatman, 

13 111. 30 ; Brighton v. W^ilMnson, 2 
Allen, 27; Reynolds v. Baldwin, 1 La. 
Ann. 162; Police Jury v. Shreveport, 
5 La. Ann. 665; Mt. Carmel ». Wabash 
County, 50 111. 69 ; Lake View v. Rose 
Hill Cemetery, 70 111. 191; Zitske ». 
Goldberg, 38 Wis. 216 ; Dillon, Mun. 
Corp. §§ 24, 30, 37. 

2 See ante, p. *35; post, pp. *230, 
*233. "Where a corporation is the 
mere creature of legislative will, es- 
tabhshed for the general good and en- 
dowed by the State alone, the legisla- 
ture may, at pleasure, modify the law 
by which it was created. For in that 
case there would be but one party ef- 
fected, — the government itself, — and 
therefore not a contract within the 
meaning of the constitution. The trus- 
tees of such a corporation would be the 
mere mandatories of the State, hav- 
ing no personal interest involved, 
and. could not complain of any law 



that might abridge or destroy their 
agency." Montpelier Academy v. 
George, 14 La. Ann. 406. In Trustees 
of Schools V. Tatman, 13 111. 30, the 
court say: " Public corporations are 
but parts of the machinery employed 
in carrying on the affairs of the State; 
and they are subject to be changed, 
modified, or destroyed, as the exigen- 
cies of the public may demand. The 
State may exercise a general superin- 
tendence and control over them and 
their rights and effects, so that their 
property is not diverted from the uses 
and objects for which it was given or 
purchased." It is a lawful exercise 
of legislative authority upon the di- 
vision of counties, towns, &c., to con- 
fer a part of the corporate property of 
the old corporation upon the new, 
and to direct the old body to pay it 
over to the new. Harrison t>. Bridge- 
ton, 16 Mass. 16 ; Salem Turnpike v. 
Essex Co., 100 Mass. 282 ; Whitney v. 
Stow, 111 Mass. 368; Stove v. Charles- 
town, 114 Mass. 214; Sedgwich Co. 
D. 'Banker, 14 Kan. 498; Portwood 
V. Montgomery, 52 Miss. 523 ; Bris- 
tol V. New Chester, 3 N. H. 524 ; Mil- 
waukee Town V. Milwaukee City, 12 
Wis. 93 ; Marshall Co. Court v. 
Calloway Co. Court, .3 Bush, 93. 
But it seems that an apportionment 
of property can only be made at the 
time of the division. Windham v. 
Portland, 4 Mass. 390; Hampshire v. 
Franklin, 16 Mass. 76. See Richland 
V. Lawrence, 12 111. 8 ; Bowdoinham 
V. Richmond, 6 Me. 112. In the 
latter case, it was held that the ap- 



234 



CONSTITUTIONAL LIMITATIONS. 



[CH. V] 



riously to the municipalities or to individuals, the remedy is r 
with the courts. The courts have no power to interfere, and t 
people must be looked to, to right through the ballot-box 
these wrongs.^ This is the general rule ; and the exceptions 
it are not numerous, and will be indicated hereafter. 



portionment of debts between an old 
town and one created from it was in 
the nature of a contract ; and it was 
not in the power of the legislature 
afterwards to release the new town- 
ship from payment of its share as 
thus determined. But the case of 
Layton v. New Orleans, 12 La. Ann. 
515, is contra. See also Borough of 
Dunmore's Appeal, 52 Penn. St. 374, 
which in principle seems to accord 
with the Louisiana case. In Barns i;. 
Clarion County, 62 Penn. St. 422, it 
was held the legislature had the power 
to open a settlement made by county 
auditors with the county treasurer, 
and to compel them to settle with 
him on principles of equity. See 
further, Cambridge v. Lexington, 17 
Pick. 222; Attorney-General v. Cam- 
bridge, 16 Gray, 247; Clark v. Cam- 
bridge, &c. Bridge Proprietors, 104 
Mass. 236. The legislature has power 
to lay out a road through several 
towns, and apportion the expense 
between them. Waterville v. Kenne- 
beck County, 59 Me. 80; Common- 
wealth V. Newburyport, 103 Mass. 
129. And it may change the law 
and redistribute the burden after- 
wards, if from a change of circum- 
stances or other reasons it is deemed 
just and proper to do so. Scituate 
V. Weymouth, 108 Mass. 131, and 
cases cited. A statute abolishing 
school districts is not void on grounds 
like the following: that it takes the 
property of the districts without com- 
pensation ; that the taxes imposed 
will not be proportional and reason- 
able, or that contracts will be effected. 
Rawson v. Spencer, 113 Mass. 40. 
See Weymouth, &c. Fire District v. 
County Commissioners, 108 Mass. 142. 



^ " The correction of these abui 
is as readily attained at the ballot-t 
as it would be by subjecting it 
judicial revision. A citizen or a nu 
her of citizens may be subtraci 
from a county free from debt, havi 
no taxation for county purposes, a 
added to an adjacent one, whose del 
are heavy, and whose taxing pow 
are exercised to the utmost ext( 
allowed bylaw, and this, too, witht 
consulting their wishes. It is dc 
every day. Perhaps a majority of 1 
people, thus annexed to an adjac( 
or thrown into a new county by 1 
division of an old one, may hi 
petitioned the legislature for t 
change ; but this is no relief to 1 
outvoted minority, or the individi 
who deems himself oppressed a 
vexed by the change. Must x 
then, to prevent such occasional ha: 
ships, deny the power entirely? 

" It must be borne in mind that th 
corporations, whether established o' 
cities, counties, or townships (whi 
such incorporated subdivisions exis 
are never intrusted and can never 
intrusted with any legislative po\ 
inconsistent or conflicting with i 
general laws of the land, or deroi 
tory to those rights either of peri 
or property which the constitut 
and the general laws guarantee. Tl 
are strictly subordinate to the gene 
laws, and merely created to carry ( 
the purposes of those laws with m 
certainty and eflSciency. They n 
be and sometimes are intrusted w 
powers which properly appertain 
private corporations, and in such rr 
ters their power as mere munioi 
corporations ceases." City of 
Louis V. Allen, 13 Mo. 414. . 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 235 



* Powers of Public Corporations. [* 194] 

The powers of these corporations are either express or implied. 
The former are those which the legislative act under which they 
exist confers in express terms ; the latter are such as are neces- 
sary in order to carry into effect those expressly granted, and 
which must, therefore, be presumed to have been within the 
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 municipal corporation has at common law few powers beyond 
those of electing, governing, and removing its members, and 
regulating its franchisefs and property. The power of its govern- 
ing officers can only extend to the administration of the by-laws 
and other ordinances by which the body is regulated." ^ But 
without being expressly empowered so to do, they may sue and 
be sued ; may have a common seal ; may purchase and 
hold lands and other * property for corporate purposes, [* 195] 
and convey the same ; may make by-laws whenever 
necessarj'- to accomplish the design of the incorporation, and 
enforce the same by penalties ; and may enter into contracts to 
effectuate the corporate purposes.^ Except as to these incidental 
powers, and which need not be, though they usually are, men- 
tioned in the charter, the charter itself, or the general law under 
which they exist, is the measure of the authority to be exercised. 
And the general disposition of the courts in this country has 
been to confine municipalities within the limits that a strict con- 
struction of the grants of powers in their charters will assign to 
them ; thus applying substantially the same rule that is applied 

1 2 Kent, 278, note ; Halstead v. plied power to borrow money for 

Mayor, &c. of New York, 3 N. Y. corporate purposes. And see also 

433 ; Hodges v. Buffalo, 2 Denio, 112 ; Ketcham v. Buffalo, 14 N. Y. 356. 

New London v. Brainerd, 22 Conn. ^ Willoock on Municipal Corpora- 

552; State v. Ferguson, 83 N, H. 424; tions, tit. 769. 

McMillan e. Lee County, 3 Iowa, 311; ' Angell & Ames on Corp. §§ 111, 

La Fayette «. Cox, 5 Ind. 38; Clark 239; 2 Kyd on Corp. 102; State u. 

V. Des Moines, 19 Iowa, 212;, State v. Ferguson, 33 N. H.430. See Dillon, 

Moriistown, 33 N. J. 63; Beaty v. Mun. Corp., for an examination, in 

Knowler, 4 Pet. 162 ; Mills v. Gleason, the light of the authorities, of the 

11 Wis. 470. In this last case, it was several powers here mentioned, 
held that these corporations had im- 



236 



CONSTITUTIONAL LIMITATIONS. 



[CH. Yin. 



to charters of private incorporation.^ The reasonable presump- 
tion is that the State has granted in clear and unmistakable 
terms all it has designed to grant at all. 



1 Under a city charter which au- 
thorized the common council to ap- 
point assessors for the purpose of 
awarding damages to those through 
whose property a street might be 
opened, and to assess such damages 
on the property benefited, it was de- 
cided that the council were not em- 
powered to levy a tax to pay for the 
other expenses of opening the street. 
Reed ». Toledo, 18 Ohio, 161. So a 
power to enact by-laws and ordinances 
to abate and remove nuisances will 
not authorize the passing of an ordi- 
nance to prevent nuisances, or to im- 
pose penalties for the creation thereof. . 
Rochester v. Collins, 12 Barb. 559. 
A power to impose penalties for ob- 
structions to streets would not author- 
ize the like penalties for encroachments 
upon streets, where, under the general 
laws of the State, the offences are 
recognized as different and distinct. 
Grand Rapids v. Hughes, 15 Mich. 
54. Authority to levy a tax on real 
and personal estate would not warrant 
an income tax, especially when such 
a, tax is unusual in the State. Mayor 
of Savannah v. Hartridge, 8 Geo. 23. 
It will appear, therefore, that powers 
near akin to those expressly conferred 
are not, for that reason, to be taken 
by implication. And see Common- 
wealth ». Erie and N. E. Railroad 
Co., 27 Penn. St. 339. This rule 
has often been applied where author- 
ity has been asserted on behalf of a 
municipal corporation to loan its credit 
to corporations formed to construct 
works of internal improvement. See 
La Fayette v. Cox, 5 Ind. 38. A 
power to pass ordinances to prohibit 
the sale or giving away of intoxicating 
liquors in certain special cases is an 
implied exclusion of the power to pro- 
hibit the sale or giving away in other 
cases. State v. Ferguson, 33 N. H. 



424. In Dunham v. Rochester, 5 
Cow. 465, it is said: " For all the 
purposes of jurisdiction, corporations 
are like the inferior courts, and must 
show the power given them in every 
case. If this be wanting, their pro- 
ceedings must be holden void whenever 
they come in question, even collater- 
ally; for they are not judicial and 
subject to direct revie'wc on certiorari. 
2 Kyd on Corp. 104-107." The power 
to create indebtedness does not by 
implication carry with it a power to 
tax for its payment. Jefiries v. Law- 
rence, 42 Iowa, 498. The approving 
vote of the citizens cannot give au 
authority the law has not conferred. 
McPherson v. Foster, 43 Iowa, 48. 
See Hackettstown v. Swackhamer, 37 
N. J. 191. The power "to enact 
ordinances necessary for government " 
does not authorize the grant of the 
franchise of a toll-bridge. Williams v. 
Davidson, 48 Tex. 1. In Nashville 
V. Ray, 19 Wall. 468, four of the 
eight justices of the Supreme Court 
denied the power of municipal corpo- 
rations to borrow money or issue secu- 
rities unless expressly authorized. Says 
Bradley, J. : " Such a power does not 
belong to a municipal corporation as 
an incident of its creation. To be 
possessed it must be conferred by 
legislation, either express or implied. 
It does not belong, as a mere matter 
of course, to local government to raise 
loans. Such governments are' not 
created for any such purpose. Their 
powers are prescribed by their char- 
ters, and those charters provide the 
means for exercising the powers ; and 
the creation of specific means excludes 
others." Compare Bank of Chilli- 
cothe V. Chillicothe, 7 Ohio, 353 ; Clark 
V. School District, 3 R. I. 199 ; State 
V. Common Council of Madison, 7 
Wis. 688 ; MUls v. Gleason, 11 Wis. 



OH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 



237 



* It must follow that, if in any case a party assumes to [* 196] 
deal with a corporation on the supposition that it pos- 
sesses powers which it does not, or to contract in any other 
manner than is permitted by the charter, he will not be allowed, 
notwithstanding he may have complied with the undertaking on 
his part, to maintain a suit against the corporation based upon 
its unauthorized action. Even where a party is induced to enter 
upon work for a corporation by the false representations of cor- 
porate officers, in regard to the existence of facts on which by 
law the power of the corporation to enter upon the work depends, 
these false representations cannot have flie effect to give a power 
which in the particular case was wanting, or to validate a con- 
tract otherwise void, and therefore can afford no ground of action 
against the corporation'; but every party contracting with it must 
take notice of any want of authority which the public records 
would show.^ This is the general rule, aiid the cases of unau- 



470; Hamlin v. Meadville (Sup. Ct. 
Nebraska), 2 Western Jurist, 59b. See 
also JSTashville v. Ray, 19 Wall. 468 ; 
Milhau u. Sharp, 17 Barb. 435, 28 
Barb. 228, and 27 N. Y. 611 ; Doug- 
lass V. Placerville, 18 Cal. 643; Mount 
Pleasant ». Breeze, 11 Iowa, 399; 
Hooper ». Emery, 14 Me. 375; Mayor, 
&c. of Macon v. Macon and Western 
R. R. Co., 7 Geo. 224; Hopple v. 
Brown, 13 Ohio, n. s. 311; Lackland 
V. Northern Missouri Railroad Co., 
31 Mo. 180 ; Smith v. Morse, 2 Cal. 
524; Bennett v. Borough of Birming- 
ham, 31 Penn. St. 15; Tucker v. 
Virginia City, 4 Nev. 20; Leaven- 
worth V. Norton, 1 Kan. 432; Kyle 
V. Malin, 8Ind. 34; Johnson ». Phila- 
delphia, 60 Penn. St. 451; Kniper v. 
Louisville, 7 Bush, 599 ; Johnston v. 
Louisville, 11 Bush, 527; Williams v. 
Davidson, 43 Tex. 1 ; Burrit v. New 
Haven, 42 Conn. 174 ; Logan v. Payne, 
43 Iowa, 524; Field ». Des Moines, 
39 Iowa, 575 ; Vance v. Little Rock, 30 
Ark. 435 ; English w. Chicot County, 
26 Ark. 454; Pullen v. Raleigh, 68 
N. C. 451; Chisholm v. Montgomery, 
2 Woods, 584. 

1 The common council of Williams- 



burg had power to open, regulate, 
grade, and pave streets, but only upon 
petition signed by one-third of the 
persons owning lands within the assess- 
ment limits. A party entered into a 
contract with the corporation for im- 
proving a street upon the false repre- 
sentations of the council that such a 
petition had been presented. Held, 
that the provision of the law being 
public, and all the proceedings leading 
to a determination by the council to 
make a particular improvement being 
matters of record, all persons were 
chargeable with notice of the law and 
such proceedings; and that, notwith- 
standing the false representations, no 
action would lie against the city for 
work done under the contract. Swift 
V. Wilhamsburg, 24 Barb. 427. "1£ 
the plaintifE can recover on the state 
of facts he has stated in his complaint, 
the restrictions and limitations which 
the legislature sought to impose upon 
the powers of the common council 
will go for nothing. And yet these 
provisions are matters of substance, 
and were designed to be of some ser- 
vice to the constituents of the com- 
mon council. They were intended to 



238 



C0KSTITt7TI0NAL LIMITATIONS. 



[cH. vm. 



thorized action which may bind the corporation are exceptional, 
and will be referred to further on. 



protect the owners of lands and the 
tax-payers of the city, as well against 
the frauds and impositions of the con- 
tractors who might be employed to 
make local improvements, as against 
the illegal acts of the common council 
themselves in employing the contrac- 
tors. But if the plaintiff can recover 
in this action, of what value or effect 
are all these safeguards ? If the com- 
mon council desire to make a local 
improvement, which the persons to be 
benefited thereby, and to be assessed 
therefor, are unwilling to have made, 
the consent of the owners may be 
wholly dispensed with, according to 
the plaintiff's theory. The common 
council have only to represent that 
the proper petition has been presented 
and the proper proceedings have been 
taken, to warrant the improvement. 
They then enter into the contract. 
The improvement is made. Those 
other safeguards for an assessment of 
the expenses and for reviewing the 
proceedings may or may not be taken. 
But when the work is completed and 
is to be paid for, it is found that the 
common council have no authority to 
lay any assessment or collect a dollar 
from the property benefited by the 
improvement. The contractor then 
brings his action, and recovers from 
the city the damages he has sustained 
by the failure of the city to pay him 
the contract price. The ground of 
his action is the falsity of the repre- 
sentations made to him. But the 
truth or falsity of such representations 
might have been ascertained by the 
party with the use of the most ordi- 
nary care and diligence. The existence 
of the proper petition, and the taking 
of the necessary initiatory steps to 
warrant the improvement, were doubt- 
less referred to and recited in the con- 
tract made with the plaintiff. And 
he thus became again directly charge- 



able with notice of the contents of all 
these papers. It is obvious that the 
restrictions and limitations imposed 
by the law cannot be thus evaded. 
The consent of the parties interested 
in such improvements cannot be dis- 
pensed with ; the responsibility, which 
the conditions precedent created by 
the statute impose, cannot be thrown 
off in this manner. For the effect of 
doing so is to shift entirely the burden 
of making these local improvements, 
to relieve those on whom the law 
sought to impose the expense, and 
to throw it on others who are not 
liable either in law or morals." 

So where the charter of Detroit 
provided that no public work should 
be contracted for or commenced until 
an assessment had been levied to de- 
fray the expense, and that no such 
work should be paid or contracted to 
be paid for, except out of the proceeds 
of the tax thus levied, it was held, 
that the city corporation had no power 
to make itself responsible for the price 
of any public work, and that such 
work could only be paid for by funds 
actually in the hands of the city treas- 
urer, provided for the specific pur- 
pose. Goodrich v. "Detroit, 12 Mich. 
279. But if the city receives the 
fund and misappropriates it, it will 
be liable. Lansing v. Van Gorder, 
24 Mich. 456. 

Parties dealing with the agents 
or officers of municipal corporations 
must, at their own peril, take notice 
of the limits of the powers both of 
the municipal corporation, and of 
those assuming to act on its behalf. 
State V. Kirkley, 29 Md. 85; Gould 
V. Sterling, 23 N. Y. 464; Clark v. 
Des Moines, 19 Iowa, 209; Veeder ». 
Lima, 19 Wis. 280; East Oakland 
V. Skinner, 94 U. S. Kep.255; Dillon, 
Mun. Corp. § 381. 



CH. VIII.J THE GEADES OP MUNICIPAL GOVERNMENT. 239 



* Corporations hy Prescription and Implication. [* 197] 

The origin of many of the corporate privileges asserted and 
enjoyed in England is veiled in obscurity, and it is more than 
probable that in some instances they had iio better foundation 
than an uninterrupted user for a considerable period. In other 
cases the regal or baronial grant became lost in the lapse of time, 
and the evidence that it had ever existed might rest exclusively 
upon reputation, or upon the inference to be drawn from the 
exercise of corporate functions. In all these cases it seems to be 
the law that the corporate existence may be maintained on the 
' ground of prescription ; that is to say, the exercise of corporate 
rights for a time whereof the memory of man runneth not to the 
contrary is sufficient evidence that such rights were once granted 
by competent authority, and are therefore now exercised by right 
and not by usurpation.^ And this presumption concludes the 
crown, notwithstanding the maxim that the crown shall lose no 
rights by lapse of time. If the right asserted is one of which a 
grant might be predicated, a jury is bound to presume a grant 
from that prescription.^ In this particular the claim to a cor- 
porate franchise stands on the same ground as any claim of pri- 
vate right which requires a grant for its support, and is to be 
sustained under the same circumstances of continuous assertion 
and enjoyment.^ And even the grant of a charter by the. crown 
will not preclude the claim to corporate rights by prescription ; 
for a new charter does not extinguish old privileges,* 

A corporation may also be established upon presumptive evi- 
dence that a charter has been granted within the time of memory. 
Such evidence is addressed to a jury, and, though not conclusive 
upon them, yet if it reasonably satisfies their minds, it will justify 

1 Introduction to Willcock on Mil- ' 2 Kent, 277 ; Angell & Ames 
nicipal Corporations; The King u. on Corp. §70; 1 Kyd on Corp. 14. 
Mayor, &c. of Stratford upon Avon, * Hadduck's Case, T. Raym. 439 ; 
14 East, 360; Robie v. Sedgwick, 35 The King «. Mayor, &c. of Stratford 
Barb. 329. See Londonderry ». An- upon Avon, 14 East, 360; Bow v. 
dover, 28 Vt. 416. Allenstown, 34 N. H. 366. See Jame- 

2 Mayor of Hull ». Horner, Cowp. son v. People, 16 111. 259. 
108, per Lord Mansfield. Compare 

People V. Maynard, 15 Mich. 470; 
State V. Bunker, 59 Me. 366. 



240 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

them in a verdict finding the corporate existence. " There is a 
^reat difference," says Lord Mansfield, "between length of time 
which operates as a bar to a claim, and that which is only used 
by way of evidence. A jury is concluded by length of time 
which operates as a bar ; as where the Statute of Limitations is 
pleaded to a debt ; though the jury is satisfied that the debt is 
still due and unpaid, it is still a bar. So in the case of presump- 
tion. If it be time out of mind, a jury is bound to preclude the 
right from that prescription, if there could be a legal commence- 
ment of the right. But any written evidence, showing that 
there was a time when the prescription did not exist, is an an- 
swer to a claim founded on prescription. But length of time 
used merely by way of evidence may be left to the consideration, 
of the jury, to be credited or not, and to draw their inference 
one way or the other according to circumstances." ^ The same 
ruling has been had in several cases in the courts of this country, 
where corporate powers had been exercised, but no charter could 
be produced. In one of these cases, common reputation that a 
charter had once existed was allowed to be given to the jury ; 
the court remarking upon the notorious fact that two great fires 
in the capital of the colony had destroyed many of the public 
records.^ In other cases .there was evidence of various acts 
which could only lawfully and properly be done by a corporation, 
covering a period of thirty, forty, or fifty years, and done with 
the knowledge of the State and without question.^ The infer- 
ence of corporate powers, however, is not one of law ; but is to 
be drawn as a fact by the jury.* 

Wherever a corporation is found to exist by prescription, the 

same rule as to construction of powers, we apprehend, 
[* 198] would apply as in other cases. * The presumption as to 

the powers granted would be limited by the proof of the 
usage, and nothing could be taken by intendment which the usage 
did not warrant. 

1 Mayor of Hull v. Horner, Cowp. barton, 13 N. H. 409, and 15 N. H. 
108, 109 ; citing, among other cases, 201 ; Bow v. AUenstown, 34 N. H. 
Bedle v. Beard, 12 Co. 5. 351; Trott «. Warren, 2 Fairf. 227. 

2 Dillingham v. Snow, 5 Mass. 552. * New Boston v. Dunbarton, 15 
And see Bow v. AUenstown, 84 N. H. N, H. 201 ; Bow «. AUenstown, 34 
351; Bassett v. Porter, 4 Gush. 487. N. H. 351 ; Mayor of Hull v. Horner, 

8 Stockbridge w. West Stockbridge, 14 East, 102. 
12 Mass. 400; New Boston v. Dun- 



CH. Vin.] THJE GRADES OF MUNICIPAL GOVERNMENT. 241 

Corporations are also said sometimes to exist by implication. 
When that power in the State which can create corporations 
grants to individuals such property, rights, or franchises, or im- 
poses, upon them such burdens, as can only be properly held, 
enjoyed, continued, or borne, according to the terms of the grant, 
by a corporate entity, the intention to create such corporate entity 
is to be presumed, and corporate capacity is held to be conferred 
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-Laws. 

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, and 
which directly limit the legislative power of the State, rest equally 
upon all the instruments of government created by the State. If 
a State cannot pass an ex post facto law, or law impairing the obli- 
gation of contracts, neither can any agency do so which acts under 
the State with delegated authority .^ By-laws, therefore, which in 
their operation would be ex post facto, or violate contracts, are 
not within the power of municipal corporations ; and whatever 

1 Dyer, 400, cited by Lord Kenyan, § 332 ; Stuyvesant v. Mayor, &c. of 

in Russell v. Men of Devon, 2 T. R. New York, 7 Cow. 588; Brooklyn 

672, and in 2 Kent, 276; Viner's Abr. Central Railroad Co. v. Brooklyn City 

tit. " Corporation;" Conservators of Railroad Co., 32 Barb. 358; Illinois 

River Tone v. Ash, 10 B. & C. 349 ; Conference Female College v. Cooper, 

8. c. 10 B. & C. 383, citing case of 25 111. 148. The last was a case 

Sutton Hospital, 10 Co. 28 ; per Kent, where a by-law of an educational cor- 

Chancellor, in Denton v. Jackson, 2 poration was held void, as violating 

Johns. Ch. 325 ; Coburn v. Ellen- the obhgation of a contract previously 

wood, 4 N. H. 101; Atkinson v. entered into by the corporation, in a 

Bemis, 11 N. H. 46 ; North Hemp- certificate of scholarship which it had 

stead '». Hempstead, 2 Wend. 109; issued. See also Davenport, &c. Co. 

Thomas ». Dakin, 22 Wend. 9; per v. Davenport, 13 Iowa, 229; Saving 

Shaw, Ch. J., in Stebbins v. Jennings, Society ». Philadelphia, 31 Penn. St. 

10 Pick. 188; Mahony v. Bank of the 175; Haywood v. Savannah, 12 Geo. 

State, 4 Ark. 620. • 404. 



2 Angell & Ames on Corporations, 



16 



242 CONSTITUTIONAL LIMITATIONS. [<3H. VIH. 

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 
laws of the State; and with the provisions of the municipal char- 
ter. Whenever they come in conflict with either, the by-law 
must give way.^ 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- 
cluded if the legislature afterward see fit to exercise it ; 
[* 199] nor will conferring a power upon a * corporation to pass 
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 together 
if not inconsistent.^ Indeed, an act may be a penal offence under 
the laws of the State, and further penalties, under proper legisla- 
tive authority, be imposed for its commission by municipal by- 
laws, and the enforcement of the one would not preclude the 
enforcement of the other.* 

1 Wood V. Brooklyn, 14 Barb. 428; be made applicable to particular por- 

Mayor, &c. of New York ». Nichols, tions of a city only, and yet not be in- 

4 Hill, 209; Petersburg v. Metzker, valid. Goddard, Petitioner, 16 Pick. 

21 111. 205; Southport v. Ogden, 23 504; Commonwealth v. Patch, 97 

Conn. 128; Andrews ii. Insurance Mass. 222, per Hoar, J. ; St. Louis v. 

Co., 37 Me. 256 ; Canton v. Nist, 9 Weber, 44 Mo. 547. 
Ohio, N. s. 489; Carr v. St. Louis, 9 ' City of St. Louis v. Bentz, 11 

Mo. 191 ; Commonwealth v. Erie and Mo. 61; City of St. Louis v. CafEerata, 

Northeast Railroad Co. , 27 Penn. St. 24 Mo. 97 ; Rogers v. Jones, 1 Wend. 

389; Burlington v. Kellar, 18 Iowa, 261; Levy v. State, 6 Ind. 281; 

59; Conwell M. O'Brien, 11 Ind. 419; Mayor, &c. of Mobile v. Allaire, 14 

March v. Commonwealth, 12 B. Monr. Ala. 400. 

25. See Baldwin v. Green, 10 Mo. * Such is the clear weight of au- 
410; Cowen v. West Troy, 48 Barb, thority, though the decisions are not 
48 ; State v. Georgia Medical Society, uniform. In Rogers v. Jones, 1 
38 Geo. 629; Pesterfleld v. Vickers, Wend. 261, it is said: " But it is said 
3 Cold. 205; Mays v. Cincinnati, 1 that the by-law of a town or corpora- 
Ohio, N. s. 268 ; Wirth v. Wilming- tion is void, if the legislature have 
ton, 68 N. C. 24. regulated the subject by law. If the 

* State V. Clarke, 1 Dutch. 54; State legislature have passed a law regnlat- 

V. Dwyer, 21 Minn. 512; Covington ing as to certain things in a city, I 

». East St. Louis, 78111. 548; Coulter- apprehend the corporation are not 

ville V. Gillen, 72 111. 599. Peculiar thereby restricted from making fur- 

and exceptional regulations may even ther regulations. Cases of this kind 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 243 • 



*3. Municipal by-laws must also be reasonable. When- [*200] 
ever they appear not to be so, the court must, as a ms^t- 



have occurred and never been ques- 
tioned on that ground; it ia only to 
notice a case or two out of many. 
The legislature have imposed a pen- 
alty of one dollar for servile labor on 
Sunday; the corporation of New York 
have passed a by-law imposing the 
penalty of five dollars for the same 
offence. As to storing gunpowder in 
New York, the legislature and corpo- 
ration have each imposed the same 
penalty. Suits to recover the penalty 
have been sustained under the corpo- 
ration law. It is believed that the 
ground has never been taken that 
there was a conflict with the State 
law. One of these cases is reported 
in 12 Johns. 122. The question was 
open for discussion, but not noticed." 
In Mayor, &c. of Mobile v. Allaire, 
14 Ala. 400, the validity of a munici- 
pal by-law imposing a fine of fifty 
dollars, for an assault and battery com- 
mitted within the city, was brought 
in question. Collier, Ch. J., says, p. 
403: " The object of the power con- 
ferred by the charter, and the pur- 
pose of the ordinance itself, was not 
to punish for an offence against the 
criminal justice of the country, but 
to provide a mere police regulation, for 
the enforcement of good prder and 
quiet within the limits of the corpo- 
ration. So far as an offence has been 
committed against the public peace 
and morals, the corporate authorities 
have no power to inflict punishment, 
and we are not informed that they 
have attempted to arrogate it. It 
is altogether immaterial whether the 
State tribunal has interfered and ex- 
ercised its powers in bringing the 
defendant before it to answer for the 
assault and battery ; for whether he 
has there bpen punished or acquitted 
is ahke unimportant. The offence 
against the corporation and the State 
we have seen are distinguishable and 



wholly disconnected, and the prosecu- 
tion at the suit of each proceeds upon 
a different hypothesis ; the one con- 
templates the observance of the peace 
and good order of the city ; the other 
has a more enlarged object in view, 
the maintenance of the peace and 
dignity of the State." See also 
Mayor, &c. of Mobile v. Rouse, 8 
Ala. 515; Intendant,. &c. of Greens- 
boro' V. MuUins, 13 Ala. 341 ; Mayor, 
&c. of New York v. Hyatt, 3 E. D. 
Smith, 156 ; People v. Stqvens, 13 
Wend. 341; Blatchley v. Moser, 15 
Wend. 215 ; Levy v. State, 6 Ind. 
281; Ambrose v. State, 6 Ind. 351; 
Lawrenceburg v. Wuest, 16 Ind. 337 ; 
Amboy v. Sleeper, 31 111. 499; St. 
Louis V. Bentz, 11 Mo. 61 ; St. Louis 
V. Cafferata, 24 Mo. 94; Shafer v. 
Mumma, 17 Md. 331; Brownville o. 
Cook, 4 Neb. 101; State v. Ludwig, 
21 Mmn. 202. On the other hand, it 
was held in State v. Cowan, 29 Mo. 
330, that where a municipal corpora- 
tion was authorized to take cogni- 
zance of and punish an act as an 
offence against its ordinances which 
was also an offence against the gen- 
eral laws of the State, and this power 
was exercised and the party punished, 
he could not afterwards be proceeded 
against under the State law. "The 
constitution," say the court, " forbids 
that a person shall be twice punished 
for the same offence. To hold that 
a party can be prosecuted for an act 
under the State laws, after he has 
been punished for the same act by the 
municipal corporation within whose 
limits the act was done, would be to 
overthrow the power of the General 
Assembly to create corporations to 
aid in the managetnent of the affairs 
of the State. For a power in the 
State to punish, after a punishment 
had been inflicted by the corporate 
authorities, could only find a support 



244 



CONSTITUTIONAL LIMITATIONS. 



[CH. VIU. 



ter of law, declare them void.^ To render them reasonable, they 
should tend in some degree to the accomplishment of the 

[* 201] objects for which the corporation * was created and its 
powers conferred. A by-law, that persons chosen annu- 



in the assumption that all the proceed- 
ings, on the part of the corporation 
■were null and void. The circum- 
stance that the municipal authorities 
have not exclusive jurisdiction over 
the acts which constitute offences 
within their limits does not affect the 
question. It is enough that their 
jurisdiction is not excluded. If it 
exists, — although it may be concur- 
rent, — if it is exercised, it is valid 
and binding so long as it is a consti- 
tutional principle that no man may be 
punished twice for the same offence." 
This case seems to be supported by 
State V. Welch, 36 Conn. 216, and 
the case of Slaughter v. People, cited 
below, goes still further. Those 
which hold that the party may be 
punished under both the State and 
the municipal law are within the prin- 
ciple of Fox V. State, 5 How. 410; 
Moore v. People, 14 How 13. And 
see Phillips o. People, 55 111. 429. In 
Jefferson City v. Courtmire, 9 Mo. 
692, it was held that authority to a 
municipal corporation to " regulate 
the police of the city " gave it no 
power to pass an ordinance for the 
punishment of indictable offences. 
And in Slaughter v. People, 2 Doug. 
(Mich.) 334, it was held not compe- 
tent to punish, under city by-laws, an 
indictable offence. 

Where an act is expressly or by 
implication permitted by the State 
*law, it cannot be forbidden by the 
'corporation. Thus, the statutes of 
New York established certain regula- 
tions for the putting up and marking 
of pressed hay, and provided that such 
hay might be sold without deduction 
for tare, and by the weight as marked, 
or any other standard weight that 



should be agreed upon. It was held 
that the city of New York had no 
power to prohibit under a penalty the 
sale of such hay without inspection; 
this being obviously inconsistent with 
the statute which gave a right to sell 
if its regulations were complied with. 
Mayor, &c. of New York v. Nichols, 
4 Hill, 209. 

^ 2 Kyd on Corporations, 107; 
Davies v. Morgan, 1 Cromp. & J. 587; 
Chamberlain of London v. Compton, 
7 D. & R. 597; Clark v. Le Cren, 9 
B. & C. 52; Goshng v. Veley, 12 
Q. B. 347; Dunham v. Rochester, 5 
Cow. 462; Mayor, &c. of Memphis o. 
Winfleld, 8 Humph. 707; Hayden v. 
Noyes, 5 Conn. 391 ; Waters k. Leech, 
3 Ark. 110; White v. Mayor, 2 Swan, 
364; Ex parte Burnett, 30 Ala. 461; 
Craig V. Burnett, 32 Ala. 728; Austin 
V. Murray, 16 Pick. 121; Godard, 
Petitioner, 16 Pick. 504; Common- 
wealth V. Worcester, 3 .Pick. 462; 
Commissioners v. Gas Co., 12 Penn. 
St. 318; State v. Jersey City, 29 
N. J. 17Q; Gallatin v. Bradford, 1 
Bibb, 209 ; Carew v. Western Union 
Telegraph Co., 15 Mich. 525; State 
V. Freeman, 38 N. H. 426; Pedrick 
V. Bailey, 12 Gray, 161; St. Louis v. 
Weber, 44 Mo. 550. But where the 
question of the reasonableness of a 
by-law depends upon evidence, and it 
relates to a subject within the juris- 
diction of the corporation, the court 
will presume it to be reasonable until 
the cpntrary is shown. Common- 
wealth V. Patch, 97 Mass. 221. And 
see St. Louis v. Weber, 44 Mo. 550. 
To be reasonable, by-laws should be 
equal in their operation. Tugman ». 
Chicago, 78 111.405; Bailing ,w. West, 
29 Wis. 307. 



CH. Vni.] THE GBADES OF MUNICIPAL GOVERNMENT. 245 

ally as stewards of the Society of Scriveners should furnish a 
dinner on election day to the freemen of the society, — the free- 
men not being the electors nor required to attend, and the 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 its objects, and therefore unreasonable 
and void.^ And where a statute permitted a 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 license 
fee of one thousand dollars was held void as not advancing the 
purpose of the law, but as being in its nature prohibitory .2 And 
if a corporation has power to prohibit the carrying 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 had an equal right, from pursuing the same business ; or 
which should allow the business to be carried on in existing 
buildings, but prohibit the erection of others for it, would be 
unreasonable.^ And a right to license an employment does not 
imply a right to charge a license fee therefor with a view to reve- 
nue, unless such seems to be the manifest purpose of the power ; 
but the authority of the corporation will be limited to such a 
charge for the license as will cover the necessary expenses of issu- 
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 

1 Society of Scriveners v. Brook- and regulate the carrying on of man- 

ing, 3 Q. B. 95. See, on this general ufactures dangerous in causing or 

subject, Dillon, Mun. Corp. §§ 251- promoting fires does not authorize an 

264. ordifiance prohibiting the erection of 

^ Ex parte Burnett, 30 Ala. 461 ; wooden buildings within the city, or 

Craig V. Burnett, 32 Ala. 728. A to limit the size of buildings which 

by-law declaring the keeping on hand individuals shall be permitted to erect 

of intoxicating liquors a nuisance was on their own premises. Ibid. An 

held unreasonable and void in SuUi- ordinance for the destruction of 

van V. Oneida, 61 111. 242. That property as a nuisance without a 

which is not a nuisance in fact cannot judicial hearing is ' void. Darst v. 

be made such by municipal ordi- People, 51 111. 286. An ordinance 

nance. Chicago, &o. R. R. Co. v. for the arrest and imprisonment with- 

Joliet, 79 111. 25 ; Wreford v. People, out warrant of a person refusing to 

14 Mich. 41. assist in extinguishing a fire is void. 

' Mayor, &c. of Hudson v. Thorne, Judson v. Reardon, 16 Minn. 431. 
7 Paige, 261. A power to prevent 



246 



CONSTITUTIONAL LIMITATIONS. 



[CH. VIIL 



plainly show an intent to confer that power, or the municipal 

corporation cannot assume it.^ 
[* 202] * A by-law to be reasonable should be certain. If it 

affixes a penalty for its violation, it would seem that such 
penalty should be a fixed and certain sum, and not left to the 
discretion of the officer or court which is to impose it on convic- 
tion ; though a by-law imposing a penalty not exceeding a certain 
sum has been held not to be void for uncertainty.^ 

So a by-law to be reasonable should be in harmony with the 
general principles of the common law. If it is in general re- 
straint of trade', — like the by-law that no person shall exercise 
the art of painter in the city of London, not being free of the 
company of painters, — it will be void on this ground.^ To take 



1 State V. Roberts, 11 Gill & J. 
506 ; Mays v. Cincinnati, 1 Ohio, n. s. 
268 ; Cincinnati u. Bryson, 15 Ohio, 
625 ; Freeholders v. Barber, 2 Halst. 
64 ; Kip V. Paterson, 2 Dutch- 298 ; 
Bennett v. Borough of Birmingham, 
31 Penn. St. 15 ; Commonwealth v. 
Stodder, 2 Cush. 562; Chilvers v. 
People, 11 Mich. 43 ; Mayor, &c. of 
Mobile V. Yuille, 3 Ala. 144 ; John- 
son V. Philadelphia, 60 Penn. St. 451 ; 
State V. Herod, 29 Iowa, 123 ; Mayor, 
&c. of New York ». Second Avenue 
R. R. Co., 32 N. Y. 261 ; Home Ins. 
Co. V. Augusta, 50 Geo. 530. Nev- 
ertheless, the courts will not inquire 
very closely into the expense of a 
license with a view to adjudge it a 
tax, where it does not appear to be 
unreasonable in amount in view of its 
purpose as a regulation. Ash v. 
People, 11 Mich. 347 ; Johnson v. 
Philadelphia, 60 Penn. St. 451; Bur- 
lington v. Putnam Ins. Co., 31 Iowa, 
102. And in some cases it has been 
held that license fees might be im- 
posed under the police power with a 
view to operate as a restriction upon 
the business or thing licensed. Carter 
V. Dow, 16 Wis. 299 ; Tenney v. Lenz, 
16 Wis. 587. See State v. Cassidy, 
22 Minn. 312. But in such cases, 
where the right to impose such license 
fees can be fairly deduced from the 



charter, it would perhaps be safer and 
less liable to lead to confusion and 
diflSculty to refer the corporate au- 
thority to the taxing power, rather 
than exclusively to the power of 
regulation. See Dunham ». Trustees 
of Rochester, 5 Cow. 462, upon the 
extent of the police power. Fees 
which are imposed under the inspec- 
tion laws of the State are akin to 
license fees, and if exacted not for 
revenue, but to meet the expenses 
of regulation, are to be referred to 
the police power. Cincinnati Gas 
Light Co. ». State, 18 Ohio, n. s. 
243. On this subject in general, see 
Dillon, Mun. Corp. §§ 291-308. 

^ Mayor, &c. of Huntsville v. 
Phelps, 27 Ala. 55, overruling Mayor, 
&c. of Mobile ». Yuille, 3 Ala. 144. 
And see Piper v. Chappell, 14 M. & 
W. 624. 

8 Clark J). Le Cren, 9 B. & C. 52 ; 
Chamberlain of London v. Compton, 
7 D. & R. 597. Compare Hayden 
V. Noyes, 5 Conn. 391 ; Willard v. 
Killingworth, 8 Conn. 247. But a 
by-law is not void, as in restraint of 
trade, which requires loaves of bread 
baked for sale to be of specified 
weight and properly stamped, or 
•which requires bakers to be licensed. 
Mayor, &o. of Mobile ». Yuille, 3 
Ala. 137. 



CH. Vni.] THE GRADES OP MTJISTCIPAL GOVEENMENT. 247 

an illustration from a private corporation : It has been held that 
a by-law of a bank, that all payments made or received by the bank 
must be examined at the time, and mistakes corrected before the 
dealer leaves, was unreasonable and invalid, and that a recovery 
might be had against the bank for an over-payment discovered 
afterwards, notwithstanding the by-law.^ So a by-law of a town, 
which, under pretence of regulating the fishery of clams and 
oysters within its limits, prohibits all persons except the inhabi- 
tants of the town from taking shell-fish in a navigable 
river, is void as in contravention of common right.^ * And [* 203] 
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 regulation, 
but deprives a party of the use of his property without regard to 
the public good, under the pretence of the preservation of health, 
when it is manifest that such is not the object and purpose of the 
regulation, will be set aside as a clear and direct infringement of 
the right of property without any compensating advantages.* 

1 Mechanics' and Farmers' Bank v. * Dunham v. Trustees of Roches- 
Smith, 19 Johns. 115 ; Gallatin v. ter, 5 Cow. 462 ; Mayor, 8ec. of New 
Bradford, 1 Bibb, 209. Although York v. Nichols, 4 Hill, 209. See 
these are cases of private corpora- Strauss v. Pontiac, 40 111. 301. 
tions, they are cited here because the * By a by-law of the town of 
rules governing the authority to make Charlestown all persons were pro- 
by-laws are the same with both classes hibited, without license from the 
of corporations. selectmen, from burying any dead 
2 Hayden t-. Noyes, 5 Conn. 391. body brought into town on any part 
As it had been previously held that of their own premises or elsewhere 
every person has a common-law right within the town. By the court, 
to fish in a navigable river or arm of Wilde, J. : "A by-law to be valid 
the sea, until by some legal mode of must be reasonable ; it must be legi, 
appropriation this common right was fidei, raiioni consona. Now if this 
extinguished, — Peck v. Lookwood, regulation or prohibition had been 
5 Day, 22, — the by-law in effect limited to the populous part of the 
deprived every citizen, except resi- town, and were made in good faith 
dents of the township, of rights which for the purpose of preserving the 
were vested, so far as from the nature health of the inhabitants, which may 
of the case a right could be vested, be in some degree exposed to danger 
See also Marietta v. Fearing, 4 Ohio, by the allowance of interments in the 
427. That a right to regulate does midst of a dense population, it would 
not include a right to prohibit, see have been a very reasonable regula- 
also Ex parte Burnett, 30 Ala. 461 ; tion. But it cannot be pretended 
Austin V. Murray, 16 Pick. 121. And that this by-law was made for the 
see Milhau v. Sharp, 17 Barb. 435, preservation of the health of the in- 
28 Barb. 228, and 27 N. Y. 611. ' habitants. Its restraints extend many 



248 



CONSTITUTIONAL LIMITATIONS. 



[CH. vin. 



[* 204] 



Delegation of Municipal Powers. 



Another and very important limitation which rests upon mu- 
nicipal powers is that they shall be executed by the municipality 



miles into the country, to the utmost 
limits of the town. Now such an 
unnecessary restraint upon the right 
of interring the dead we think essen- 
tially unreasonable. If Charlestown 
may lawfully make such a by-law as 
this, all the towns adjoining Boston 
may impose similar restraints, and 
consequently all those who die in 
Boston must of necessity be interred 
within the precincts of the city. That 
this would be prejudicial to the }iealth 
of the inhabitants, especially in the 
hot seasons of the year, and when 
epidemic diseases prevail, seems to 
be a well-established opinion. Inter- 
ments, therefore, in cities and large 
populous towns, ought to be discoun- 
tenanced, and no obstacles should be 
permitted to the establishment of 
cemeteries at suitable places in the 
vicinity. The by-law iu question is 
therefore an unreasonable restraint 
upon many of the citizens of Boston, 
who are desirous of burying their 
dead without the city, and for that 
reason void. And this by-law would 
seem to be void for another reason. 
A by-law for the total restraint of 
one's right is void; as if a man be 
barred of the use of his land. Com. 
Dig. By-Law, c. 4. The land where 
the bodies were interred was the land 
of the Catholic Bishop of Boston, pur- 
chased by him in 1830, and then con- 
secrated as a Catholic burying-ground, 
and has ever since been used as such, 
for the interment of Catholics dying 
in Charlestown and Boston. It is true 
the by-law does not operate to the 
total restraint or deprivation of the 
bishop's right, but it is a total re- 
straint of the right of the burying 
the dead in Boston, for which a part 



of the burying-ground was appropri- 
ated. The illegality of the by-law is 
the same, whether it may deprive one 
of the use of a part or the whole of 
his property; no one can be so de- 
prived, unless the public good re- 
quires it. And the law will not allow 
the right of private property to be in- 
vaded under the guise of a police reg- 
ulation for the preservation of health, 
when it is manifest that such is not 
the object and purpose of the regula- 
tion. Now we think this is manifest 
from the case stated in regard to the 
by-law in question. It is a clear and 
direct infringement of the right of 
property, without any compensating 
advantages, and not a police regula- 
tion made in good faith for the pres- 
ervation of health. It interdicts, or 
in its operation necessarily intercepts, 
the sacred use to which the Catholic 
burying-ground was appropriated and 
consecrated, according to the forms of 
the Cathohc religion; and such an in- 
terference, we are constrained to say, 
is wholly unauthorized and most un- 
reasonable." Austin V. Murray, 16 
Pick. 125. So in Wreford v. People, 
14 Mich. 41, the common council of 
Detroit, under a power granted by 
statute to compel the owners and occu- 
pants of slaughter-houses to. cleanse 
and abate them whenever necessary 
for the health of the inhabitants, as- 
sumed to pass an ordinance altogether 
prohibiting the slaughtering of ani- 
mals within certain limits in the city ; 
and it was held void. See further 
State V. Jersey City, 5 Dutch. 170. 
Upon the whole subject of municipal 
by-laws, see Angell & Ames on Corp, 
c. 10; Grant on Corp. 76 et seq. ' 
See also Redfield on Railways (3d ed.) 



OH. Vm.] THE GRADES OP MUNICIPAL GOVERNMENT. 249 

itself, or by such agencies or officers as the statute has pointed 
out. So far as its functions are legislative, they rest in the dis- 
cretion and judgment of the municipal body intrusted with them, 
and that body cannot refer the exercise of the power to the dis- 
cretion and judgment of its subordinates or of any other author- 
ity. So strictly is this rule applied, that when a city charter 
authorized the common council of the city to make by-laws and 
ordinances ordering and directing any of the streets to be pitched, 
levelled, paved, flagged, &c., or for the altering or repair- 
ing the * same, " within such time and in such manner as [* 205] 
they may prescribe under the superintendence and direc- 
tion 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- 
mon council the decision which, under the law, must be made by 
the council itself. The trust was an important and delicate one, 
as the expenses of the improvement were, by the statute, to be 
paid by the owners of the property in front of which it was 
made. It was in effect a power of taxation ; and taxation is the 
exercise of sovereign authority ; and nothing short of the most 
positive and explicit language could justify the court in holding 
that the legislature intended to confer such a power, or permit it 
to be conferred, on a city officer or committee. The statute in 
question not only contained no such language, but, on the con- 

Vol. I. p. 88; Dillon, Mun. Corp. c. 12. previous to that time failed to observe 

The subject of the reasonableness of theicode of medical ethics prescribed 

by-laws was considered at some length by the society for its members. Mu- 

in People ». Medical Society of Erie, nicipal by-laws jnay impose penalties 

24 Barb. 570, and Same v. Same, 32 onpartiesguilty of a violation thereof, 

N. Y. 187. In the first case, it -was but they cannot impose forfeiture of 

held that a regulation subjecting a property or rights, without express 

member of the County Medical Society legislative authority. State p. Fer- 

to expulsion, for charging less than guson, 33 N. H. 430 ; Phillips v. Allen, 

the established fees, was unreasonable 41 Penn. St. 481. See also Kirk v. 

and void. In the second, it. was de- Nowell, 1 T. K. 124; White v. Tall- 

cided that where a party had the pre- man, 2 Dutch. 67; Hart v. Albany,, 9 

scribed qualifications for admission to Wend. 588 ; Peoria v. Calhoun, 29 

ihe society, he could not be refused 111. 817; St. Paul v. Coulter, 12 Minn, 

admission, on the ground of his having 41. 



250 



CONSTITTTTIONAL LIMITATIONS. 



[cH. vni. 



trary, clearly expressed the intention of confining the exercise of 
this power to the common council, the members of which were 
elected by and responsible to those whose property they were 
thus allowed to tax.^ 

This restriction, it will be perceived, is the same which rests 
upon the legislative power of the State, and it springs from the 
same reasons. The people in the one case in creating the legis- 
lative department, and the legislature in the other in conferring 
the corporate powers, have selected the depository of the power 
which they have designed should be exercised, and in confiding, 
it to such depository have impliedly prohibited its being exercised 
by any other agency. A trust created for any public purpose 
cannot be assignable at the will of the trustee.^ 



1 Thompson v. Schermerhom, 6 
N. Y. 92. See also Smith v. Morse, 2 
Cal. 524; Oakland v. Carpentier, 13 
Cal. 540 ; Whyte v. Nashville. 2 Swan, 
364; East St. Louis v. Wehrung, 50 
111. 28 ; Rogers v. Collier, 43 Mo. 359; 
State V. Jersey City, 1 Dutch. 309; 
Hydes «. Joyea, 4 Bush, 464; Lyon v. 
Jerome, 26 Wend. 485; State v. Pat- 
terson, 34 N. J. 168; State v. Fiske, 
9 R. I. 94; Kinmundy v. Mahan, 72 
111. 462 ; Davis i>. Reed, 65 N. Y. 566 ; 
Supervisors of Jackson v. Brush, 77 
111. 59; Thomson v. Booneville, 61 
Mo. 282 ; Dillon, Mun. Corp. § 60. 

° The charter of Washington gave 
the corporation authority " to author- 
ize the drawing of lotteries, for efEect- 
ing any important improvement in 
the city, which the ordinary funds or 
revenue thereof will not accomplish; 
provided that the amount raised in 
each year shall not exceed ten thou- 
sand dollars. And provided also that 
the ohject for which the money is 
intended to be raised shall be first 
submitted to the President of the 
United States, and shall be approved 
by him." Marshall, Ch. J., speaking 
of this authority, says : " There is 
great weight in the argument that it 
is a trust, and an important trust, 
confided to the corporation itself, for 
the purpose of effecting important 



improvements in the city, and ought, 
therefore, to be executed under the 
immediate authority and inspection 
of the corporation. It is reasonable 
to suppose that Congress, when grant- 
ing a power to authorize gaming, 
would feel some solicitude respecting 
the fairness with which the power 
should be used, and would take as 
many precautions against its abuse as 
was compatible with its beneficial ex- 
ercise. Accordingly, we find a limi- 
tation upon the amount to be raised, 
and on the object for which the lottery 
may be authorized. It is to be for 
any important improvement in the 
city, which the ordinary funds or 
revenue thereof will not accomplish ; 
and it is subjected to the judgment 
of the President of the United States. 
The power thus cautiously granted is 
deposited with the corporation itself, 
without an indication that it is assign- 
able. It is to be exercised like other 
corporate powers, by the agents of 
the corporation under its control. 
While it remains where Congress has 
placed it, the character of the corpo- 
ration affords some security against 
its abuse, — some security that no 
other mischief will result from it than 
is inseparable from the thing itself. 
But if the management, control, and 
responsibility may be transferred to 



CH. Vni.] THE GRADES OF MUNICIPAIi GOVERNMENT. 251 

* Equally incumbent upon the State legislature and [* 206] 
these municipal bodies is the restriction that they shall 
adopt no irrepealable legislation. No legislative body can so 
part with its powers by any proceeding as not to be able to con- 
tinue the exercise of them. It can and should exercise them 
again and again, as often as the public interests require.^ Such 
a body has no power, even by contract, to control and embarrass 
its legislative powers and duties. On this ground it has been 
held, that a grant of land by a municipal corporation, for the 
purposes of a cemetery, with a covenant for quiet enjoyment by 
the grantee, could not preclude the corporation, in the exercise 
of its police powers, from prohibiting any further use of the land 
^for cemetery purposes, when the advance of population threat- 
'ened to make such use a public nuisance.^ So when "a lot is 
granted as a place of (Jeposit for gunpowder, or other purpose 
innocent in itself at the time ; it is devoted to that purpose till, 
in the progress of population, it becomes dangerous to the prop- 
erty, the safety, or the lives of hundreds ; it cannot be that the 
mere form of the grant, because the parties choose to make it 
particular instead of general and absolute, should prevent the 
use to which it is limited being regarded and treated as a nui- 
sance, when it becomes so in fact. In this way the legislative 
powers essential to the comfort and preservation of 
populous communities might be frittered away into * per- [* 207] 
feet insignificance. To allow rights thus to be par- 
celled 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 multiplied to an intolerable 
extent." 2 

And on the same ground it is held, that a municipal corpora- 
tion, having power to establish, make, grade, and improve streets, 

any adventurer who will purchase, all 32 N. Y. 261. Compare Kincaid's 

the security for fairness which is fur- Appeal, 66 Penn. St. 411; s. c. 5 

nished by character and responsibility Am. Rep. 377. 

is lost." Clark v. Washington, 12 * Coats v. Mayor, &c. of New 

Wheat. 54. York, 7 Cow. 605. See also Davis 

1 East Hartford ». Hartford Bridge ». Mayor, &c. of New York, 14 N. Y. 
Co., 10 How. 535; Dillon, Mun. Corp. 506; Attorney-General v. Mayor, &o. 
§ 61. of New York, 3 Duer, 119 ; «tate ». 

2 Brick Presbyterian Church v. Graves, 19 Md. 51; Gozzle ». George- 
City of New York, 5 Cow. 540; New town, 6 Wheat. 597; Louisville City 
York V. Second Avenue R. R. Co., R. R. Co. v. Louisville, 8 Bush, 415. 



252 



CONSTITUTIONAL LIMITATIONS. 



[CH. vin. 



does not, by once establishing the grade, preclude itself from 
changing it as the public needs or interest may seem to require, 
notwithstanding the incidental injury which must result to 
those individuals who have erected buildings with reference 
to the first grade.^ So a corporation having power under the 
charter to establish and regulate streets cannot under this au- 
thority, without explicit legislative consent, permit individuals to 
lay down a railway 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 exclusive right to con- 
trol and regulate the use of the streets of the city. In this 
respect, it is endowed with legislative sovereignty. The exercise 
of that sovereignty has no limit, so long as it is within the ob- 
jects and trusts for which the power is conferred. An ordinance 
regulating a street is a legislative act, entirely beyond the control 
of the judicial power of the State. But the resolution in ques- 
tion is not such an act. Though it relates to a street, and very 
materially affects the mode in which that street is to be used, yet 



1 Calendar v. Marsh, 1 Pick. 417 ; 
Griggs V. Foote, 4 Allen, 195 ; Rad- 
cliffe's Execntors v. Brooklyn, 4 N. Y. 
195; Graves v. Otis, 2 Hill, 466; 
O'Connor v. Pittsburg, 18 Penn. St. 
187; Reading v. Keppleman, 61 Penn. 
St. 233; Shinner v. Hartford Bridge 
Co., 29 Conn. 523; Snyder v. Rock- 
port, 6 Ind. 237; La Fayette v. Bush, 

19 Ind. 326; La Fayette v. Fowler, 
34 Ind. 140; Keal v. Keokuk, 4 
Greene (Iowa), 47; Cole v. Muscatine, 
14 Iowa, 296 ; Russell v. Burlington, 

30 Iowa, 262 ; Roberts v. Chicago, 26 
111. 249; Murphy v. Chicago, 29 111. 
279; Quincy v. Jones, 76 111. 231; 
Bounds t>. Mumford, 2 R. I. 154; 
Rome V. Omberg, 28 Geo. 46 ; Roll v. 
Augusta, 34 Geo. 326; Reynolds v. 
Shreveport, 13 La. Ann. 426; White 
V, Yazoo City, 27 Miss. 357; Humes 
V. Mayor, &c. , 1 Humph. 403 ; St. Louis 
V. GuTofi, 12 Mo. 414; Taylor v. St. 
Louis, 14 Mo. 20; Keasy v. Louisville, 
4 Dana, 154; Smith o. Washington, 

20 How. 135; Blount ». Janesville, 

31 Wis. 648 ; Nevins v. Peoria, 41 111. 



502; Pontiac ». Carter, 32 Mich. 
164 ; Wegmann v. JefEerson, 61 Mo. 
55. Compare Louisville v. Rolling 
Mill Co., 3 Bush, 416. The law 
would seem to be otherwise declared 
in Ohio. See Rhodes v. Cincinnati, 
10 Ohio, 159; McCombsD. Akron, 15 
Ohio, 474 ; s. c. 18 Ohio, 229 ; Craw- 
ford V. Delaware, 7 Ohio, n. s. 459. 
Compare Alexander v. Milwaukee, 16 
Wis. 256. Courts will not undertake 
to control municipal discretion in the 
matter of improving streets. Dun- 
ham w. Hyde Park, 75 111. 371 ; Brush 
V. Carbondale, 78 111. 74. The owner 
of a lot on a city street acquires no 
prescriptive right to collateral support 
for his buildings which can render 
the city liable for injuries caused by 
grading the street. Mitchell v. Rome, 
49 Geo. 19; s. c. 15 Am. Rep. 669; 
Quincy v. Jones, 76 111. 231; s. c. 20 
Am. Rep. 243. But the failure to 
use due care and prudence in grading 
may render the city liable. Bloom- 
ington V. Brokaw, 77 111. 194. 



CH. Vin.] THE GBADES OP MUNICIPAL GOVEENMENT. 253 

in its essential features it is a contract. Privileges exclusive in 
their nature and designed to be perpetual in their duration are 
conferred. Instead of regulating the use of the street, the use 
itself to the extent specified in the resolution is granted to the 
associates. For vrhat has been deemed an adequate considera- 
tion, the corporation has assumed to surrender a portion of their 
municipal authority, and has in legal effect agreed with the de- 
fendants that, so far as they may have occasion to use the street 
for the purpose of constructing and operating their rail- 
road, the right to regulate *and control the use of that [*208] 
street shall not be exercised. ... It cannot be that 
powers vested in the corporation as an important public trust can 
thus be frittered away, or parcelled out to individuals or joint- 
stock associations, and secured to them beyond control." ^ 

So it has been held, that the city of Philadelphia exercised a 
portion of the public right of eminent domain in respect to the 
streets within its limits, subject only to the higher control of the 
State and the use of the people ; and therefore a written license 
granted by the city, though upon a valuable consideration, au- 
thorizing the holder to connect his property with the city railway 
by a turnout and track, was not such a contract as would prevent 
the city from abandoning or removing the railway whenever, in 
the opinion of the city authorities, such action would tend to the 
benefit of its police.^ 

Thus hedged in by the limitations which control the legislative 
power of the State, these corporations are also entitled to the 
same protection which surrounds the exercise of State legislative 
power. One of these is, that no right of action shall arise in 
favor of an individual for incidental injury suffered by him in 
consequence of their adopting or. failing to adopt legislative 

1 Milhau ». Sharp, 17 Barb. 435 ; c. 15. In Milhau b. Sharp, supra, it 

s. c. 28 Barb. 228, and 27 N. Y. 611. was also held that a corporation, -with 

See also Davis v. Mayor, &c. of New authority " from time to time to regu- 

York, 14 N. Y. 506 ; State v. Mayor, late the rates of fare to be charged 

&c., 3 Duer, 119; State ». Graves, 19 for the carriage of persons," could 

Md. 351. Compare Chicago, &o. K. K. not by resolution divest itself thereof 

Co. V. People, 73 111. 541. The con- as to the carriages employed on a 

sent of the legislature in any such street-railway. 

case would relieve it of all difficulty, » Bryson v, Philadelphia, 47 Penn. 

except so far as questions might arise St. 329. Compare Louisville City 

concerning the right of individuals to K. R. Co. v. Louisville, 8 Bush, 415. 
compensation, as to which see post, 



254 CONSTITUTIONAL LIMITATIONS. [CH. Vm. 

action.^ Another is, that the same presumption that they have 
proceeded upon sufficient infonnation and with correct motives 
shall support their legislative action v^hich supports the statutes 
of the State, and precludes judicial inquiry on these points.^ 
These rules, however, must be confined to those cases 
[*209] where -the corporation *is exercising a discretionary 
power, and where the reasons which are to determine 
whether it shall act or not, and if it does, what the action shall 
be, are addressed to the municipal body exclusively. If the 
corporation is in the position of trustee of property for other 
persons, it is subject to the same supervision and control with 
other trustees, and where a specific act is required by law to be 
done, exact performance may be compelled as in other cases. 

Among the implied powers of such an organization appears to 
be the power to defend and indemnify its officers where they have 
incurred liability in the bona fide discharge of their duty. It has 
been decided in a case where irregularities had occurred in the 
assessment of a tax, in consequence of which the tax was void, 
and the assessors had refunded to the persons taxed the moneys 
which had been collected and paid into the town, county, and 
State treasuries, that the town had authority to vote to raise a sum 

1 Radcliffe's Ex'rs ». Mayor, &c. Rep. 272; Sparhawk v. Salem, 1 

of Brooklyn, 4 N. Y. 195; Duke ». Allen, 30; Randall v. Eastern R. 

Mayor, &c. of Rome, 20 Geo. 635; Corp., 106 Mass. 276; s. c. 8 Am. 

Larkin ». Saginaw County, 11 Mich. Rep. 326 ; Hughes «. Baltimore, 

88; Detroit v. Beckman, 34 Mich. Taney, 243. But this doctrine does 

125 ; Little Rock v. Willis, 27 Ark. not deprive an individual of remedy 

572 ; Tate v. M. K. & T. R. R. Co., when by reason of the negUgent con- 

64 Mo. 149; St. Louis v. Gurno, 12 struction of a public work his property 

Mo. 414; Griffin v. Mayor, &o. of is injured, or when the necessary 

New York, 9 N. Y. 456; Mills v. result of its construction is to flood or 

Brooklyn, 32 N. Y. 489;, Hines v. otherwise injure his property in a man- 

Lockport, 50 N. Y. 236; Davenport ner that would render a private Individ- 

w. Stevenson, 34 Iowa, 225 ; Bennett ual liable. See Van Pelt u. Davenport, 

V. New Orleans, 14 La. Ann. 120 ; 20 Am. Rep. 622, and note thereto, 

Weightman v. Washington, 1 Black, p. 626; Merrifield v. Worcester, 110 

39; Western College v. Cleveland, Mass. 216; s. c. 14 Am. Rep. 592 

12 Ohio, N. 8. 375; Barton ». Syra^ Wegmann ». Jefferson, 61 Mo. 55 

ouse, 37 Barb. 292; Wheeler «.-Cin- Union v. Durkes, 38 N. J. 21. 
ciunati, 19 Ohio, u. s. 19; s. c. 2 Am. 2 Milhau v. Sharp, 15 Barb. 193 

Rep. 368 ; Hewson v. New Haven, New York and Harlaem Railroad Co 

37 Conn. 475 ; Murtagh v. St. Louis, ». Mayor, &o. of New York, 1 Hilton 

44 Mo. 480 ; Commissioners v. Duck- 562 ; Buell ». Ball, 20 Iowa, 282 

ett, 20 Md. 468; Carr «. Northern Freeport «. Marks, 59 Penn. St. 253 

Liberties, 35 Penn. St. 324 ; Grant v. Compare State v. Cincinnati Gas Co. 

Erie, 69 Penn, St. 420; s. c. 8 Am. 18 Ohio, n. s. 262. 



CH. Vin.J THE GKADES OP MUNICIPAL GOVEENMENT. 255 

of money in order to refund to the assessors what had been so 
paid by them, and that such vote was a legal promise to pay, on 
which the assessors might maintain action against the town. " The 
general purpose of this vote," it was said, " was just and wise. 
The inhabitants, finding that three of their townsmen, who had 
been elected by themselves to an office, which they could not, with- 
out incurring a penalty, refuse to accept, had innocently and inad- 
vertently committed an error which, in strictness of law, annulled 
their proceedings, and exposed them to a loss perhaps to the whole 
extent of their property, if all the inhabitants individually should 
avail themselves of their strict legal rights, — finding also that the 
treasury of the town had been supplied by the very money which 
these unfortunate individuals were obliged to refund from their 
own estates, and that, so far as the town tax went, the very per- 
sons who had rigorously exacted it from the assessors, or who were 
about to do it, had themselves shared in due proportion the benefits 
and use of the money which had been paid into the treasury, in 
the shape of schools, highways, and various other objects which 
the necessities of a municipal institution call for, — concluded to 
reassess the tax, and to provide for its assessment in a manner 
which would have produced perfect justice to every individual of 
the corporation, and would have protected the assessors from the 
effects of their inadvertence in the assessment which was found to 
be invalid. The inhabitants of the town had a perfect right to 
make this reassessment, if they had a right to raise the money 
originally. The necessary supplies to the treasury of a town can- 
not be intercepted, because of an inequality in the mode of ap- 
portioning the sum upon the individuals. Debts must be 
incurred, duties must be performed, by every town ; * the [* 210] 
safety of each individual depends upon the execution of 
the corporate duties and trusts. There is and must be an inherent 
power in every town to bring the money necessary for the pur- 
poses of its ci-eation into the treasury ; and if its course is obstructed 
by the ignorance or mistakes of its agents, they may proceed to 
enforce the end and object by correcting the means ; and whether 
this be done by resorting to their original power of voting to raise 
money a second time for the same purposes, or by directing to re- 
assess the sum before raised by vote, is immaterial ; perhaps the 
latter mode is best, at least it is equally good." ^ 

1 Per Parker, Ch. J. , in Nelson u. v. Windham, 13 Me. 74; Fuller p. 
Milford, 7 Pick. 23. See also Baker Groton, 11 Gray, 340 ; Board of 



256 



CONSTITUTIONAL LIMITATIONS. 



[CH. vni. 



It has also been held competent for a town to appropriate money 
to indemnify the school committee for expenses incurred in defend- 
ing an action for an alleged libel contained in a report made by 
them in good faith, and in which action judgment had been ren- 
dered in their favor.^ And although it should appear that the 
officer had exceeded his legal right and authority, yet if he has 
acted in good faith in an attempt to perform his duty, the town has 
the right to adopt his act and to bind itself to indemnify 
[* 211] him.* * And perhaps the legislature may even have power 



Commissioners v. Lucas, 93 U. S. 
Kep. 108; State v. Hammonton, 38 
N. J. 430 ; s. c. 20 Am. Rep. 404. 
The duty, however, must have been 
one authorized by law, and the matter 
one in which the corppration had an 
interest. Gregory v. Bridgeport, '41 
Conn. 76 ; s. c. 19 Am. Rep. 485. 
In Bristol v. Johnson, 34 Mich. 123, 
it appeared that a township treas- 
urer had been robbed of town moneys, 
but had accounted to the township 
therefor. An act of the legislature 
was then obtained for refunding this 
sum to him by tax. Held, not justi- 
fied by the constitution of the State, 
which forbids the allowance of de- 
mands against the public by the legis- 
lature. See People v. Supervisor of 
Onondaga, 16 Mich. 254. 

A municipal corporation, it is said, 
may offer rewards for the detection of 
offenders within its limits ; but its- 
promise to reward an officer for that 
which, without such reward, it was 
his duty to do, is void. Dillon, Mun. 
Corp. § 91, and cases cited. And see 
note, p. 212, supra. 

1 Fuller V. Inhabitants of Groton, 
11 Gray, 340. See also Hadsell v. 
Inhabitants of Hancock, 3 Gray, 526 ; 
Pike V. Middleton, 12 N. H. 278. 

^ A surveyor of highways cut a 
drain for the purpose of raising a legal 
question as to the bounds of the high- 
way, and the town appointed a com- 
mittee to defend an action brought 
against the surveyor therefor, and 
voted to defray the expenses incurred 



by the committee. By the court : 
" It is the duty of a town to repair all 
highways within its bounds, at the 
expense of the inhabitants, so that 
the same may be safe and convenient 
for travellers ; and we think it has the 
power, as incident to this duty, to 
indemnify the surveyor, or other 
agent, against any charge or liability 
he may incur in the bqna fide dis- 
charge of this duty, although it may 
turn out on investigation that he mis- 
took his legal rights and authority. 
The act by which the surveyor in- 
curred a liability was the digging a 
ditch, as a drain for the security of 
the highway ; and if it was done for 
the purpose of raising a legal question 
as to the bounds of the highway, as 
the defendants offered to prove at the 
trial, the town had, nevertheless, a 
right to adopt the act, for they were 
interested in the subject, being bound 
to keep the highway in repair. They 
had, therefore, a right to determine 
whether they would defend the sur- 
veyor or not; and having determined 
the question, and appointed the plain- 
tiffs a committee to carry on the de- 
fence, they cannot now be allowed to 
deny their liability, after the com- 
mittee have paid the charges incurred 
under the authority of the town. . The 
town had a right to act on the sub- 
ject-matter which was within their 
jurisdiction; and their votes are bind- 
ing and create a legal obligation, 
although they were under no previous 
obligation to indemnify the surveyor. 



CH. Vin.] THE GRADES OP MUKICIPAL GOVERNMENT. 



257 



to compel the town, in such a case, to reimburse its officers the 
expenses incurred V)y them in the honest but mistaken discharge 
of what they believed to be their duty, notwithstanding the town, 
by vote, has refused to do so.^ 



Construction of Municipal Powers. 

The powers conferred upon municipalities must be construed 
with reference to the object of their creation, namely, as agencies 
of the State in local government.^ The State can create them for 



That towns have an authority to de- 
fend and indemnify their agents who 
may incur a liability by an inadver- 
tent error, or in the performance of 
their duties imposed on them by law, 
is fully maintained by the case of 
Nelson o. Milford, 7 Pick. 18." 
Bancroft v. Lynnfield, 18 Pick. 568. 
And see Briggs v. Whipple, 6 Vt. 95 ; 
^Sherman v. Carr, 8 R. I. 431. 

1 Guilford v. Supervisors of Che- 
nango, 13 N. Y. 143. See this case' 
commented upon by Lyon, J., in 
State V. Tappen, 29 Wis. 674, 680. 
On the page last mentioned it is said, 
" We have seen no case except in the 
courts of New York, which holds that 
such moral obligation gives the legis- 
lature power to compel payment." 
And see Bristol v. Johnson, 34 Mich. 
123. Where oificers make themselves 
liable to penalties for refusal to per- 
form duty, the corporation has no 
authority to indemnify them. Hal- 
stead V. Mayor, &c. of New York, 
8 N. Y. 430; Merrill v. Plainfleld, 
45 N. H. 126. See Frost b. Belmont, 
6 Allen, 152; People v. Lawrence, 6 
Hill, 244; Vincent v. Nantucket, 12 
Cush. 105. 

2 A somewhat peculiar question 
was involved in the case of Jones v. 
Richmond, 18 Grat. 517. In antici- 
pation of the evacuation of the city of 
Richmond by the Confederate author- 
ities, and under the apprehension that 
scenes of disorder might follow which 



would be aggravated by the opportu- 
nity to obtain intoxicating liquors, 
the common council ordered the seiz- 
ure and destruction of all such liquors 
within the city, and pledged the faith 
of the city to the payment of the 
value. The Court of Appeals of 
Virginia afterwards decided that the 
city might be held liable on the pledge 
ia an action of assumpsit. Rices, J., 
says: "By its charter the council is 
specially empowered to ' pass all by- 
laws, rules, and regulations which 
they shall deem necessary for the 
peace, comfort, couvenience, good 
order, good morals, health, or safety 
of said city, or of the people or prop- 
erty therein.' It is hard to conceive 
of larger terms for the grant of sover- 
eign legislative powers to the specified 
end than those thus employed in the 
charter; and they must be taken by 
necessary and unavoidable intendment 
to Comprise the powers of eminent 
domain within these limits of pre- 
scribed jurisdiction. There were two 
modes open to the council: first, to 
direct the destruction of these stores, 
leaving the question of the city's 
liability therefor to be afterwards liti- 
gated and determined; or, secondly, 
assuming their liability, to contract 
for the values destroyed under their 
orders. Had they pursued the first 
mode, the corporation would have 
been liable in an action of trespass 
for the damages; but they thought 



17 



258 CONSTITUTIONAL LIMITATIONS. [OH. VHI. 

no other purpose, and it can confer powers of government to no 
other end, without at once coming in conflict with the constitu- 
tional maxim, that legislative power cannot be delegated, or with 
other maxims designed to confine all the agencies of government 
to the exercise of their proper functions. And wherever the 
municipality shall attempt to exercise powers not within the 
proper province of local self-government, whether the right to do 
so be claimed under express legislative grant, or by implication 
from the charter, the act must be considered as altogether ultra 
vires, and therefore void. 

A reference to a few of the adjudged cases will perhaps best 
illustrate this principle. The common council of the city of 
Buffalo undertook to provide an entertainment and ball for its 
citizens and certain expected guests on the 4th of July, and for 
that purpose entered into contract with a hotel keeper to provide 
the entertainment at his house, at the expense of the city. The 
entertainment was furnished and in part paid for, and suit was 
brought to recover the balance due. The city had authority, under 
its charter, to raise and expend moneys for various specified pur- 
poses, and also '■' to defray the contingent and other expenses of 
the city." But providing an entertainment for its citizens is no 

part of municipal self-government, and it has never been 
[* 212] considered, * where the common law has prevailed, that 

the power to do so pertained to the government in any of 
its departments. The contract was therefore held void, as not 
within the province of the city government.^ 

proper to adopt the latter mode, make See also the case of New London v. 

it a matter of contract, and approach Brainard, 22 Conn. 552, -which fol- 

their citizens, not as trespassers, but lows and approves this case. The 

with the amicable profEer of a formal cases differ in this only •- that in the 

receipt and the plighted faith of the first suit was brought to enforce 

city for the payment. In this they the illegal contract, while iu the 

seem to me to be well justified." second the city was enjoined from 

Judge Dillon doubts the soundness of paying over moneys which it had 

this decision. Dillon, Mun. Corp. appropriated for the purposes of the 

§ 371, note. The case seems to us celebration. The cases of Tash v. 

analogous in principle to that of the Adams, 10 Cush. 252, and Hood v. 

destruction of buildings to stop the Lynn, 1 Allen, 103, are to the same 

progress of a fire. In each case pri- effect. A town, it has been held, 

vate property is destroyed to antici- cannot lawfully be assessed to pay a 

pate and prevent an impending public reward offered by a vote of the town . 

calamity. See post, pp. *526, *o94. for the apprehension and conviction 

1 Hodges V. Buffalo, 2 Denio, 110. of a person supposed to have com- 



CH. Vin.] THE GEABES OP MUNICIPAL GOVERNMENT. 259 

The supervisors of the city of New York refused to perform a 
duty imposed upon them by law, and were prosecuted severally 
for the penalty which the law imposed for such refusal, and 
judgment recovered. The board of supervisors then assumed, on 
behalf of the city and county, the payment of these judgments, 
together with the costs of defending the suits, and caused drafts 
to be drawn upon the treasurer of the city for these amounts. 
It was held, that these drafts upon the public treasury to indem- 
nify officers for disregard of duty were altogether unwarranted 
and void, and that it made no difference that the officers had 
acted conscientiously in refusing to perform their duty, and in 
the honest belief that the law imposing the duty was unconstitu- 
tional. The city had no interest in the suits against the super- 
visors, and appropriating the public funds to satisfy the judgments 
and costs was not within either the express or implied powers 
conferred upon the board.^ It was in fact appropriating the pub- 
lic money for private purposes, and a tax levied therefor must 
consequently be invalid, on general principles controlling the 
right of taxation, which will be considered in another place. In 
a recent case in Iowa it is said : " No instance occurs to us in 
which it would be competent for [a municipal corporation] to 
loan its credit or make its accommodation paper for the bene- 
fit of citizens to enable them to execute private enterprises ; " ^ 
and where it cannot loan its credit to private undertakings, it 

mitted murder therein. Gale ». South ^ Halstead v. Mayor, &c. of New 

Berwick, 51 Me. 174. Nor, under its York, 3 N. Y. 430. See a similar 

general authority to raise money for case in People v. Lawrence, 6 Hill, 

" necessary town charges," is a town 244. See also Carroll v. St. Louis, 

authorized to raise and expend moneys 12 Mo. 444; Vincent v. Nantucket, 

to send lobbyists to the legislature. 12 Cush. 103; Parsons u. Goshen, 11 

Frankfort v. Winterport, 54 Me. 250. Pick. 396 ; Merrill v. Plainfield, 45 

Or, under like authority, to furnish N. H. 126. 

a uniform for a volunteer military " Clark v. Des Moines, 19 Iowa, 

company. Claflin v. Hopkinton, 4 224; Carter v. Dubuque, 35 Iowa, 

Gray, 502. Where a municipal cor- 416. See Tyson v. School Directors, 

poration enters into a contract ultra 51 Penn. St. 9; Freeland v. Hastings, 

vires, no implied contract arises to 10 Allen, 570; Thompson u. Pittston, 

compensate the contractor for any 59 Me. 545; Kelly v. Marshall, 69 

thing he may have done under it, not- Penn. St. 319; Allen v. Jay, 60 Me. 

■withstanding the corporation may 124; s. c. Am. Law Reg., Aug. 1873, 

have reaped a benefit therefrom, with note by Judge Kedfield; s. c. 

McSpedon v. New York, 7 Bosw. 11 Am. Rep. 185. 
601; Zottman v. San Francisco, 20 
Cal. 96. 



260 CONSTITUTIOlTAIi LIMITATIONS, [CH. VIII. 

[* 213] is equally without * power to appropriate the moneys in its 
treasury, or by the conduct of its officers to subject itself 
to implied obligations.^ 

The powers conferred upon the municipal governments must 
also be construed as confined in their exercise to the territorial 
limits embraced within the municipality ; and the fact that these 
powers are conferred in general terms will not warrant their exer- 
cise except within those limits. A general power " to purchase, 
hold, and convey estate, real and personal, for the public use " of 
the corporation, will not authorize a purchase outside the corpo- 
rate limits for that purpose.^ Without some special provision 
they cannot, as of course, possess any control or rights over lands 
lying outside ; ^ and the taxes they levy of their own authority 
and the moneys they expend, must be for local purposes only.* 

But the question is a very different one how far the legislature 
of the State may authorize the corporation to extend its action to 
objects outside the city limits, and to engage iu enterprises of a 
public nature which may be expected to benefit the citizens of 
the municipality in common with the people of the State at large, 
and also in some special and peculiar manner, but which never- 
theless are not under the control of the corporation, and are so 

1 " In determining -whether the Virginia City, 4 Nev. 20- It is no 

subject-matter is within the legiti- objection to the validity of an act 

mate authority of the town, one of which authorizes an expenditure for 

the tests is to ascertain whether the a town-hall that rooms to be rented 

expenses were incurred in relation to for stores are contained in it. White 

a subject specially placed by law in ». Stamford, 37 Conn. 578. 
other hands. ... It is a decisive " Riley v. Rochester, 9 N. Y. 64. 

test against the validity of all grants See Tucker v. Coldwater, 36 Mich, 
of money by towns for objects liable « Per Kent, Chancellor, Denton v. 

to that objection, but it does not Jackson, 2 Johns. Ch. 336. And see 

settle questions arising upon expendi- Bullock v. Curry, 2 Met. (Ky.) 171 ; 

tures for objects not specially provided Weaver v. Cherry, 8 Ohio, n. 8. 564; 

for. In such cases the question will North Hempstead v. Hempstead, 

still recur, whether the expenditure Hopk. 294; Concord v. Boscawen, 17 

was within the jurisdiction of the N. H. 465; Tucker v. Coldwater, 36 

town. It may be safely assumed that, Mich. 

if the subject of the expenditure be in * In Parsons v. Goshen, 11 Pick, 

furtherance of some duty enjoined by 396, the action of a town appropri- 

statute, or in exoneration of the citi- ating money in aid of the construction 

zens of the town from a liability to a of a county road, was held void and 

common burden, a contract made in no protection to the officers who had 

reference to it will be valid and bind- expended it. See also Concord v. 

ing upon the town." Allen v. Taun- Boscawen, 17 N. H. 465. 
ton, 19 Pick. 487. See Tucker v. 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. 261 

far aside from the ordinary purposes of local governments that 
assistance by the municipality in such enterprises would not 
be warranted under any general grant of power for municipal 
government. For a few years past the sessions of the legisla- 
tive bodies of the several States have been prolific in 
* legislation which has resulted in flooding the country [* 214] 
with municipal securities issued in aid of works of public 
improvement, to be owned, controlled, and operated by private 
parties, or by corporations created for the purpose ; the works 
themselves being designed for the convenience of the people of 
the State at large, but being nevertheless supposed to be specially 
beneficial to certain localities because running near or through 
them, and therefore justifying, it is supposed, the imposition of a 
special burden by taxation upon such localities to aid in their 
construction.! We have elsewhere ^ referred to cases in which 
it has been held that the legislature may constitutionally author- 
ize cities, townships, and counties to subscribe to the stock of 
railroad companies, or to loan them their credit, and to tax their 
citizens to pay these subscriptions, or the bonds or other securities 
issued as loans, where a peculiar benefit to the municipality was 
anticipated from the improvement. The rulings in these cases, 
if sound, must rest upon the same right which allows such munici- 
palities to impose burdens upon their citizens to construct local 
streets or roads, and they can only be defended on the ground 
that " the object to be accomplished is so obviously connected 
with the [municipality] and its interests as to conduce obviously 
and in a special manner to their prosperity and advancement." * 

1 In Merrick v. Inhabitants of Am- 44. It seems not inappropriate to 
herst, 12 Allen, 500, it was held com- remark in this place that the three 
petent for the legislature to authorize authors who have treated so ably 
a town to raise money by taxation for of municipal constitutional law (Mr. 
a State agricultural college, to be lo- Sedgwick, Stat. & Const. Law, 464), 
cated therein. The case, however, we of railway law (Judge Redfield), and 
think, stands on different reasons of municipal corporations (Judge Dil- 
from those where aid has been voted Ion) have all united in condemning 
by municipalities to public improve- this legislation as unsound and un- 
ments. See it explained in Jenkins warranted by the principles of consti- 
V. Andover, 103 Mass. 94. And see tutional law. See the views of the 
similar cases referred to, post, p. two writers last named in note to the 
*230, note. case of People v. Township Board of 

2 Ante, p. *119. Salem, 9 Am. Law Eeg. 487. And 
« Talbot V. Dent, 9 B. Monr. 526. Judge Dillon well remarks in his 

See Hasbrouck 0. Milwaukee, 13 Wis. Treatise on Municipal Corporations 



262 



CONSTITUTIONAL LIMITATIONS. 



[CH. vin. 



But there are authorities which dispute their soundness, and it 
cannot be denied that this species of legislation has been exceed- 



(§ 104) that, " regarded in the light 
of its effects, there is little hesitation 
in affirming that this invention to aid 
private enterprises has proved itself 
jaaneful in the last degree." 

If we trace the beginning of this 
legislation, we shall find it originating 
at a time when there had been little 
occasion to consider with care the lim- 
itations to the functions of municipal 
government, because as yet those 
functions had been employed with 
general caution and prudence, and no 
disposition had been manifested to 
stretch their powers to make them 
embrace matters not usually recog- 
nized as properly and legitimately 
falling within them, or to make use of 
the municipal machinery to further 
private ends. Nor did the earliest 
decisions attract much attention, for 
they referred to matters somewhat 
local, and the spirit of speculation 
was not as yet rife. When the con- 
struction of railways and canals was 
first entered upon by an expenditure 
of public funds to any considerable 
extent, the States themselves took 
them in charge, and for a time appro- 
priated large sums and incurred im- 
mense debts in enterprises, some of 
which were of high importance and 
others of little value, the cost and 
management of which threatened them 
at length with financial disaster, bank- 
ruptcy, and possible repudiation. No 
long experience was required to dem- 
onstrate that railways and canals could 
not be profitably, prudently, or safely 
managed by the shifting administra- 
tions of State government ; and many 
of the States not only made provision 
for disposing of their interest in works 
of public improvement, but, in view 
of a bitter experience of the evils 
already developed in undertaking to 
construct and control them, they 
amended their constitutions so as to 



prohibit the State, when again the 
fever of speculation should prevail, 
from engaging anew in such under- 
takings. 

All experience shows, however, that 
men are abundant who do not scruple to 
evade a constitutional provision which 
they find opposed to their desires, if 
they can possibly assign a plausible 
reason for doing so ; and in the case 
of the provisions before referred to, it 
was not long before persons began 
to question their phraseology very 
closely, not that they might arrive at 
the actual purpose, — which indeed 
was obvious enough, — but to dis- 
cover whether that purpose might not 
be defeated without a violation of the 
express terms. The purpose clearly 
was to remand all such undertakings 
to private enterprise, and to protect 
the citizens of the State from being 
taxed to aid them ; but while the 
State was forbidden to engage in such 
works, it was unfortunately not ex- 
pressly declared that the several mem- 
bers of the State, in their corporate 
capacity, were also forbidden to do so. 
The conclusion sought and reached 
was that the agencies of the State 
were at liberty to do what was for- 
bidden to the State itself, and the 
burden of debt which the State might 
not directly impose upon its citizens, 
it might indirectly place upon their 
shoulders by the aid of municipal 
action. 

The legislation adopted under this 
construction some of the courts felt 
compelled to sustain, upon the ac- 
cepted principle of constitutional law 
that no legislative authority is for- 
bidden to the legislature unless for- 
bidden in terms ; and the voting of 
municipal aid to railroads became 
almost a matter of course wherever a 
plausible scheme could be presented 
by interested parties to invite it. In 



CH. VIII.] THE GRADES OF MUKICIPAL GOVERNMENT. 



263 



ingly mischievous in its results, that it has created a great burden 
of public debt, for which in a large number of eases the antici- 



some localities, it is true, vigorous 
protest was made; but as the hand- 
ling of a large amount of public 
money was usually expected to make 
the fortune of the projectors, whether 
the enterprise proved successful or 
not, means either fair or unfair were 
generally found to overcome all oppo- 
sition. Towns sometimes voted large 
sums to railroads on the ground of 
local benefit where the actual and 
inevitable result was local injury, and 
the projectors of one scheme succeeded 
in obtaining and negotiating the bonds 
of one municipality to the amount of 
a quarter of a million dollars, which 
are now being enforced, though the 
work they were to aid was never 
seriously begun. A very large per- 
centage of all the aid voted was paid 
to " work up the aid," sacrificed in 
discounts to purchasers of bonds, ex- 
pended in worthless undertakings, or 
otherwise lost to the tax-payers ; and 
the cases might almost be said to be 
exceptional in which municipalities, 
when afterwards they were called upon 
to meet their obligations, could do so 
vrith a feeling of having received the 
expected consideration. Some State 
and territorial governors did noble 
work in endeavoring to stay this reck- 
less legislative and municipal action, 
and some of the States at length ren- 
dered such action impossible by con- 
stitutional provisions so plain and 
positive that the most ingenious mind 
was unable to misunderstand or per- 
vert them. 

When the United States entered 
upon a scheme of internal improve- 
ment, the Cumberland road was the 
first important project for which its 
revenues were demanded. The prom- 
ises of this enterprise were of conti- 
nental magnificence and importance, 
but they ended after heavy national 
expenditures in a road no more na- 



tional than a thousand others which 
the road-masters in the several States 
have constructed with the local taxes; 
and it was -finally abandoned to the 
States as a common highway. When 
next a great national scheme was 
broached, the aid of the general gov- 
ernment was demanded by way of 
subsidies to private corporations, who 
presented schemes of works of great 
public convenience and utility, which 
were to open up the new territories 
to improvement and settlement sooner 
than the business of the country 
would be likely to induce unaided 
private capital to do it, and which 
consequently appealed to the imagina- 
tion rather than to facts to demon- 
strate their importance, and afforded 
abundant opportunity for sharp opera- 
tors to call to their assistance the 
national sentiment, then peculiarly 
strong and active by reason of the 
attempt recently made to overthrow 
the government, in favor of projects 
whose national importance in many 
cases the imagination alone could dis- 
cover. The general result was the 
giving away of immense bodies of 
land, and in some cases the granting 
of pecuniary aid, with a recklessness 
and often with an appearance of cor- 
ruption that at length startled the 
people, and aroused a public spirit 
before which the active spirits in Con- 
gress who had promoted these grants, 
and sometimes even demanded them 
in the name of the poor settler in the 
wilderness who was unable to get his 
crops to market, were compelled to 
give way. The scandalous frauds 
connected with the Pacific Railway, 
which disgraced the nation in the face 
of the world, and the great and dis- 
astrous financial panic of 1873, were 
legitimate results of such subsidies; 
but the pioneer in the wilderness had 
long before discovered that land grants 



264 



CONSTITUTIONAL LIMITATIONS. 



[CH. vm. 



pated benefit was never received, and that, as is likely to be the 
case where municipal governments take part in projects foreign 



were not always sought or taken with 
a view to an immediate appropriation 
to the roads for the construction of 
which they were nominally made, but 
that the result in many cases was, that 
large tracts were thereby kept out of 
market and from taxation which 
otherwise would have been purchased 
and occupied by settlers who would 
have lessened his taxes by contribut- 
ing their share to the public burdens. 
The grants, therefore, in such cases, 
instead of being at once devoted to 
improvements for the benefit, of set- 
tlers, were in fact kept in a state of 
nature by the speculators who had 
secured them, until the improvements 
of settlers in their vicinity could make 
the grantees wealthy by the increase 
in value which such improvements 
gave to the land near them. In say- 
ing this the admission is freely made 
that in many cases the grants were 
promptly and honestly appropriated 
in accordance with their nominal pur- 
pose ; but the general verdict now is 
that the system was necessarily cor- 
ruptive and tended to invite fraud, 
and that some persons of influence 
managed to accumulate great wealth 
by grants- indirectly secured to them- 
selves under the unfounded pretence 
of a desire to aid and encourage the 
pioneers in the wilderness. 

Some States also have recently in 
their corporate capacity again engaged 
in issuing bonds to subsidize private 
corporations, with the natural result 
of serious State scandals, State insol- 
vency, public discontent, and in some 
cases it would seem almost inevita- 
ble repudiation. Their governments, 
amid the disorders of the times, have 
fallen into the hands of strangers and 
novices, and the hobby of public im- 
provement has been ridden furiously 
under the spur of individual greed. 

It has often been well remarked 



that the abuse of a power furnishes 
no argument against its existence ; but 
a system so open to abuses may well 
challenge attention to its foundations. 
And when those foundations are ex- 
amined, it is not easy to find for them 
any sound support in the municipal 
constitutional law of this country. 
The same reasons which justify sub- 
sidies to the business of common car- 
riers by railway will support taxation 
in aid of any private business what- 
soever. 

It is sometimes loosely said that 
railway companies are public corpora- 
tions, but the law does not so regard 
them. It is the settled doctrine of 
the law that, like banks, mining com- 
panies, and manufacturing companies, 
they are mere private corporations, 
supposed to be organized for the 
benefit of the individual corporators, 
and subject to no other public super- 
vision or control than any other 
private association for business pur- 
poses to which corporate powers have 
been granted. Dartmouth College v. 
Woodward, 4 Wheat. 668; Buonaparte 
V. Camden and Amboy R. R. Co., 
Baldw. 205; Eustis v. Parker, 1 N. 
H. 237; Ohio, &c. R. R. Co. v. 
Ridge, 5 Blackf. 78; Cox v. Louisville 
&c. R. R. Co., 48 Ind. 178, 189; 
Roanoke, &c. R. R. Co. v. Davis, 2 
Dev. & Bat. 451; Dearborn v. Boston 
&M. R. R. Co., 4 Fost. 179; Trus- 
tees, &c. V. Auborn, &o. R. R. Co., 
3 Hill, 570 ; Tinsman u. Belvidere, 
&c. R. R. Co., 2 Dutch. 148; Thorpe 
V. Rutland, &e. R. R. Co., 27 Vt. 
155; Alabama R. R. Co. v. Kidd, 29 
Ala. 221; Turnpike Co. ». Wallace, 
8 Watts, 316; Seymour v. Turnpike 
Co., 10 Ohio, 476; Ten Eyck o. D. i& 
R. Canal, 3 Harr. 200; Atlantic, &c. 
Telegraph Co. i>. Chicago, &c. R. R. 
Co., 6 Biss. 158; A. & A. on Corp. 
§§ 30-36; Redf. on Railw. c. 3, § 1; 



CH. Vin.] THE GRADES OP MUNICIPAL GOVEENMENT. 



265 



to the purposes of their creation, it has furnished unusual facili- 
ties for fraud and public plunder, and led almost inevitably, at 

Pierce on Railroads, 19, 20. Taxation 
to subsidize them cannot therefore be 
justified on the ground of any public 
character they possess, any more than 
to subsidize banks or mining compa- 
nies. It is truly said that it has long 
been the settled doctrine that the 
right of eminent domain may be em- 
ployed in their behalf, and it has 
sometimes been insisted with much 
earnestness that wherever the State 
may aid an enterprise under the right 
of eminent domain, it may assist it by 
taxation also. But the right of tax- 
ation and the right of eminent domain 
are by no means coextensive, and do 
not rest wholly upon like reasons. 
The former compels the citizen to 
contribute his proportion of the pub- 
lic burden; the latter compels him to 
part with nothing for which he is not 
to receive pecuniary compensation. 
The tax in the one case is an exac- 
tion, the appropriation in the other is 
only a forced sale. To take money 
for private purposes under pretence 
of taxation is, as has been often said, 
but robbery and plunder; to appro- 
priate under the right of eminent 
domain for a private corporation jobs 
no one, because the corporation pays 
for what is taken, and in some cases, 
important to the welfare and pros- 
perity of the community, and where 
a public convenience is to be provided, 
— as in the case of a grist mill, — it 
has long been held competent to ex- 
ercise the one power, while the other 
was conceded to be inadmissible. 
Few persons would attempt to justify 
a tax in aid of a mill-owner, on the 
ground that laws appropriating lands 
for his benefit, but at his expense, 
have been supported. 

The truth is, the right to tax in 
favor of private corporations of any 
description must rest upon the broad 
ground that the power of the legis- 



lature, subject only to the express 
restrictions of the constitution, is 
supreme, and that, in the language of 
some of the cases, " if there be the 
least possibility that making the gift 
will be promotive in any degree of 
the public welfare, it becomes a ques- 
tion of policy, and not of natural 
justice, and the determination of the 
legislature is conclusive." (Post, p. 
*489.) But nothing is better settled 
on authority than that this strong 
language, though entirely true when 
it refers to the making provision for 
those things which it falls within the 
province of government to provide for 
its citizens, or to the payment for 
services performed foi" the State, or 
the satisfaction of legal, equitable, 
or moral obligations resting upon it, 
is wholly inadmissible when the pur- 
pose is to impose a burden upon one 
man for the benefit of another. Many 
such cases might be suggested in 
which there would not only be a 
" possibility," but even a strong 
probability, that a small burden im- 
posed upon the public to set an in- 
dividual up in business, or to build 
him a house, or otherwise make him 
comfortable, would be promotive of 
the public welfare; but in law the 
purpose of any such burden is deemed 
private, and the incidental benefit to 
the public is not recognized as an ad- 
missible basis of taxation. 

In Allen v. Inhabitants of Jay, 60 
Me. 124, 8. c. 11 Am. Rep. 185, it 
became necessary to reaffirm a doc- 
trine, often declared by the courts, 
that however great was the power to 
tax, it was exceeded, and the legis- 
lature was attempting the exercise of 
a power not legislative in its character, 
when it undertook to impose a bur- 
den on the public for a private pur- 
pose. And it was also held that the 
raising of money by tax in order to 



266 



CONSTITUTIONAL LIMITATIONS. 



[CH. VIII. 



last, to discontent ; sometimes even to disorder and violence. In 
some of the recent revisions of State constitutions, the legislature 
has been expressly prohibited from permitting the municipalities 
to levy taxes or incur debts in aid of works of public improve- 
ment, or to become stockholders in private corporations.^ 



loan the same to private parties to 
enable them to erect mills and manu- 
factories in such town, was raising it 
for a private purpose, and therefore 
illegal. Appleton, Ch. J., most truly 
remarks in that case, that "all se- 
curity of private rights, all protection 
of private property, is at an end, when 
one is compelled to raise money to 
loan at the will of others for their 
own use and benefit, when the power 
is given to a majority to lend or give 
away the property of an unwilling 
minority." And yet how plain it is 
that the benefit of the local public 
might possibly have been promoted 
by the proposed erections! See to 
the same effect Loan Association ». 
Topeka, 20 Wall. 6.55, where the 
whole subject is carefully considered 
and presented with clearness and force 
in an opinion by Mr. Justice Miller ; 
also Commercial Bank e. Tola, 2 Dill. 
C. C. 353 ; s. c. 9 Kan. 700 ; Weis- 
mer v. Douglas, 64 N. Y. 91 ; s. c. 
21 Am. Rep. 586. 

These cases are not singular: they 
are representative cases ; and they 
are cited only because they are among 
the most recent expressions of judi- 
cial opinion on the subject. With 
them may be placed Lowell ». Boston, 
111 Mass. 454, in which the Supreme 
Court of Massachusetts, after the 
great fire of 1872 in Boston, denied 
the power of the Commonwealth to 
permit taxation in order to loan the 
moneys out to the persons who had 
suffered by the fire. A like decision 
is found in State v. Osawkee, 14 Kan. 
418. These decisions of eminent tri- 
bunals indicate a limit to legislative 
power in the matter of taxation, and 
hold, what has been decided very 
many times before, that it is not 



necessary the constitution should for- 
bid expressly the taxing for private 
purposes, since it is implied in the 
very idea of taxation that the purpose 
must be public, and a takin,g for any 
otherpurpose is unlawful confiscation. 
Cooley on Taxation, 67 et seq. 

One difference there undoubtedly 
is between the case of a railroad cor- 
poration and a manufacturing corpo- 
ration; that there are precedents in 
favor of taxing for the one and not 
for the other. But if the precedents 
are a departure from sound principle, 
then, as in every other case where 
principle is departed from, evils were 
to have been expected. A catalogue 
of these would include the squander- 
ing of the public domain. ; the enrich- 
ment of schemers whose policy it has 
been, first, to obtain all they can by 
fair promises, and then avoid as far 
and as long as possible the fulfilment 
of the promises; the corruption of 
legislation; the loss of State credit; 
great public debts recklessly con- 
tracted for moneys often recklessly 
expended; public discontent because 
the enterprises fostered from the 
public treasury and on the pretence 
of public benefit are not believed to 
be managed in the public interest; 
and, finally, great financial panic, 
collapse, and ' disaster. At such a 
cost has the strong expression of dis- 
sent which all the while has accompa- 
nied these precedents been disregarded 
and set aside. 

^ The following States have such 
provisions in their constitutions: Col- 
orado, Connecticut, Illinois, Missis- 
sippi, Missouri, and New Hampshire. 
Many of the State constitutions ex- 
press forbid State aid to private 
corporations of any sort, and it is 



CH. Tin.] THE GRADES OF MUKICIPAL GOVERNMENT. 



267 



* Assuming that any such subscriptions or securities [* 215] 
may be authorized, the first requisite to their validity 
would seem, then, to be a special legislative authority to make 
or issue them ; an authority which does not reside in the general 
words in which the powers of local self-government are usually 
conferred,^ and one also which must be carefully followed by the 
municipality in all essential particulars, or the subscription or 
security will be void.^ And while mere irregularities of action, 
not going to the essentials of the power, would not prevent par- 
ties who had acted in reliance upon the securities enforcing thetti, 
yet as the doings of these corporations are matters of public rec- 
ord, and they have no general power to issue negotiable securi- 
ties,^ any one who becomes holder of such securities, even though 



probable that their provisions are 
broad enough in some cases to pro- 
hibit aid by the municipalities also. 

1 Bullock V. eurry, 2 Met. (Ky.) 
171. A general power to borrow 
money or incur indebtedness to aid 
in the construction of " any road or 
bridge " must be understood to have 
reference only to the roads or bridges 
within the municipality. Stokes v. 
Scott County, 10 Iowa, 173; State v. 
Wapello County, 13 Iowa, 388 ; La- 
fayette V. Cox, 5 Ind. 38. There 
are decisions in the 'Supreme Court 
of the United States which appear to 
be to the contrary. The city charter 
of Muscatine conferred in detail the 
usual powers, and then authorized 
the city " to borrow money for any 
object in its discretion," after a vote 
of the city in favor of the loan. In 
Meyer v. Muscatine, 1 Wall. 384, the 
court seem to have construed this 
clause as authorizing a loan for any 
object whatever; though such phrases 
are understood usually to be confined 
in their scope to the specific objects 
before enumerated; or at least to 
those embraced within the ordinary 
functions of municipal governments. 
See Lafayette v. Cox, 6 Ind. 38. The 
case in 1 Wallace was followed . in 
Rogers v. Burlington, 3 Wall. 654, 
four justices dissenting. See "also 



Mitchell V. Burlington, 4 Wall. 270. 
A municipal corporation_having power 
to borrow money, it is held, may make 
its obligations payable wherever it 
shall agree. Meyer v. Muscatine, 1 
Wall. 384; Lynde v. County, 16 
Wall. 6. But some cases hold that 
such obligations can only be made 
payable at the corporation treasury, 
unless there is express legislative au- 
thority to make them payable else- 
where. People V. Tazewell County, 22 
111. 147; Pekin v. Bfeynolds, 31 111. 529. 
Such corporations cannot give their 
obligations all the qualities of negoti- 
able paper, without express legislative 
permission. Pively i'. Cedar Falls, 
21 Iowa, 565. See Thomas v. Rich- 
mond, 12 Wall. 349; Dillon, Mun. 
Corp. §§ 406, 407. 

* See Harding ». Rockford, &o. 
R. R. Co., 65 III. 90; Dunnovan v. 
Green, 57111. 63; Springfield, &c. R.R. 
Co. B. Cold Spring, 72 111. 603; People 
V. County Board of Cass, 77 111. 438; 
Cairo, &c. R. R. Co. v. Sparta, 77 
111. 505; George v. Oxford, 16 Kan. 
72; Hamlin v. Meadville (Sup. Ct. 
Neb.), 2 West. Jurist, 596. 

' Thompson v. Lee County, 3 Wall. 
327; Police Jury v. Britton, 15 Wall. 
566; Starin v. Genoa, 23 N. Y. 447; 
People V. Supervisors of El Dorado, 
11 Cal. 170 ; Diveley v. Cedar Falls, 



268 



CONSTITUTIONAL LIMITATIONS. 



[CH. -vm. 



they be negotiable in form, will take them with constructive 
notice of any want of power in the corporation to issue them, 
and cannot enforce them when their issue was unauthorized.^ 



21 Iowa, 566 ; Smith v. Cheshire, 13 
Gray, 318; People ». Gray, 23 Cal. 
128; 28 Cal. 447. Compare Emery 
V. Mariaville, 56 Me. 315; Sherrard 
V. Lafayette Co., 3 Dillon, 236. 

1 There is consideral confusion in 
the cases on this subject. If the cor- 
poration has no authority to issue 
negotiable paper, or if the officers who 
assume to do so have no power under 
the charter for that purpose, there 
can be no doubt that the defence of 
want of power may be made by the 
corporation in any suit brought on 
the securities. Smith v. Cheshire, 
13 Gray, 318; Gould v. Sterling, 23 
N. Y. 458; Andover v. Grafton, 7 
N. H. 298; Clark v. Des Moines, 19 
Iowa, 209; M'Pherson ». Foster, 43 
Iowa, 48 ; Bissell v. Kankakee, 64 
111. 249 ; Big Grove v. Wells, 65 111. 
263; Elmwood v. Marey, 92 U. S. 
Rep. 289; Concord v. Portsmouth 
Savings Bank, 92 U. S. Rep. 625; 
St. Joseph V. RogCTs, 16 Wall. 644 ; 
Pendleton Co. v. Amy, 13 Wall. 297; 
Marsh v. Fulton Co., 10 Wall. 676; 
East Oakland v. Skinner, 94 U. S. 
Rep. 255 ; South Ottowa v. Perkins, 
94 U. S. Rep. 260; McClure v. Ox- 
ford, 94 U. S. Rep. 429. And in 
any case, if the holder has received 
the securities with notice of any valid 
defence, he takes them subject thereto. 
But where the corporation has power 
to issue negotiable paper in some 
cases, and its officers have assumed 
to do so in cases not within the char- 
ter, whether a bona fide holder would 
be chargeable with notice of the want 
of authority in the particular case, or, 
on the other hand, would be entitled 
to rely on the securities themselves as 
sufficient evidence that they were prop- 
erly issued when nothing appeared 
on their face to apprise him of the 



contrary, is a question still open to 
some dispute. 

In Stoney w. American Life Insur- 
ance Co., 11 Paige, 635, it was held 
that a negotiable security of a corpo- 
ration which upon its face appears to 
have been duly issued by such cor- 
poration, and in conformity with the 
provisions of its charter, is valid in 
the hands of a hona fide holder thereof 
without notice, although such security 
was in fact issued for a purpose, and 
at a place not authorized by the char- 
ter of the company, and in violation 
of the laws of the State where it was 
actually issued. In Gelpecke w. Du- 
buque, 1 Wall. 203, the law is stated 
as follows: " Where a corporation has 
power, under any circumstances, to 
issue negotiable securities, the hona 
fide holder has a right to presume 
they were issued under the circum- 
stances which give the requisite au- 
thority, and they are no more liable 
to be impeached for any infirmity in 
the hands of such holder than any 
other commercial paper." See also 
Commissioners of Knox Co. ». Aspin- 
wall, 21 How. 539; Russell ». Jeffer- 
sonville, 24 How. 287; Lexington », 
Butler, 14 Wall. 282 ; Thorn v. Com- 
missioners of Miami Co., 2 Black, 
722; De Voss v. Richmond, 18 Grat. 
338; San Antonio ». Lane, 32 Tex. 
405. In Farmers' and Mechanics' 
Bank o. The Butchers' and Drovers' 
Bank, 16 N. Y. 125, it is said: " A 
citizen who deals directly with a cor- 
poration, or who takes Its negotiable 
paper, is presumed to know the extent 
of its corporate powers. But when 
the paper is, upon its face, in all 
respects such as the corporation has 
authority to issue, and its only defect 
consists in some extrinsic fact, — such 
as the purpose or object for which it 



CH. VIII.J THE GRADES OF MTJNICIPAL GOVERNMENT. 



269 



*In some of the cases involving the validity of the [*216] 
subscriptions made or bonds issued by municipal cor- 



■was issued, — to hold that the person 
taking the paper must inquire as to 
such extraneous fact, of the existence 
of which he is in no way apprised, 
would obviously conflict with the 
whole policy of the law in regard 
to negotiable paper." In Madison 
and Indianapolis Railroad Co. v. The 
Norwich Savings Society, 24 Ind. 461, 
this doctrine is approved, and a dis- 
tinction made, in the earlier case of 
Smead ». Indianapolis, &c. Railroad 
Co., 11 Ind. 104, between paper ex- 
ecuted ultra vires and that executed 
within the power of the corporation, 
but, by an abuse of the power in that 
particular instance, was repudiated. 
In St. Joseph t'. Rogers, 16 Wall. 
644, it was decided that where power 
is conferred to issue bonds, but only 
in a particular manner, or subject to 
certain regulations, conditions, or 
qualifications, and the bonds are 
actually issued with recitals showing 
compliance with the law, the proof 
that any of the recitals are incorrect 
will not constitute a defence to a suit 
on the bonds, "if it appears that it 
was the sole province of the municipal 
oflScers who executed the bonds to 
decide whether or not there had been 
an antecedent compliance with the 
regulation' condition, or qualification 
which it is alleged was not fulfilled." 
And see Moran v. Commissioners of 
Miami Co., 2 Black, 722; Pendleton 
Co. V. Amy, 13 Wall. 297 ; Chute v. 
Winegar, 15 Wall. 355 ; Venice v. 
Murdoch, 92 U. S. Rep. 494; Marcy 
V. Oswego, 92 U. S. Rep. 637; Hum- 
boldt V. Long, 92 U. S. Rep. 642; 
Douglas Co. V. BoUes, 94 U. S. Rep. 
104; Johnson Co. v. January, 94 U. 
S. Rep. 202 ; Deming v. Houlton, 64 
Me. 254; s- c. 18 Am. Rep. 253; 
Carpenter v. Lathrop, 51 Mo. 483; 
Vicksburg v. Lombard, 51 Miss. Ill ; 
Pollard u. Pleasant Hill, 3 Dillon, 



195; Davis v. Kendallville, 5 Biss. 
280. That neither irregularities in 
issuing bonds nor fraud in obtaining 
them will be a defence in the hands 
of bona fide holders, see foregoing 
cases, and also Maxcy v. Williamson 
Co., 72 111. 207; Nicolay v. St. Clair, 
3 Dillon, 163; East Lincoln v. Daven- 
port, 94 U. S. Rep. 801. In Halstead 
V. Mayor, &c. of New Tork, 5 Barb. 
218, action was brought upon war- 
rants drawn by the corporation of 
New York upon its treasurer, not in 
the course of its proper and legitimate 
business. It was held that the cor- 
poration under its charter had no gen- 
eral power to issue negotiable paper, 
though, not being prohibited by law, 
it might do so for any debt contracted 
in the course of its proper, legitimate 
business. But it was also held that 
any negotiable securities not issued by 
the defendants in their proper and 
legitimate business, are void in the 
hands of the plaintifi', although re- 
ceived by him without actual notice 
of their consideration. This deci- 
sion was affirmed in 3 N. Y. 430. 
In Gould 1). Town of Stirling, 23 N. Y. 
464, it was held that where a town 
had issued negotiable bonds, which 
could only be issued when the written 
assent of two-thirds of the resident 
persons taxed in the town had been 
obtained and filed in the county clerk's 
office, the bonds issued without such 
assent were invalid, and that the pur- 
chaser of them could not rely upon 
the recital in the bonds that such 
assent had been obtained, but must 
ascertain for himself at his peril. Say 
the court: " One who takes a negoti- 
able promissory note or bill of ex- 
change, purporting to be made by an 
agent, is bound to inquire as to the 
power of the agent. Where the agent 
is appointed and the power conferred, 
but the right to exercise the power 



270 



CONSTITUTIONAI; LIMITATIONS. 



[CH. vin. 



[*217] porations in aid of internal * improvements, there has 
been occasion to cfonsider clauses in the State constitu- 



has been made to depend upon the 
existence of facts of which the agent 
may be supposed to be in an especial 
manner cognizant, the bona _fide holder 
is protected ; because he is presumed 
to have taken the paper upon the faith 
of the representation as to those facts. 
The mere fact of executing the note 
or bill amounts in itself, in such a 
case, to a representation by the agent 
to every person who may take the 
paper that the requisite facta exist. 
But the holder has no such protection 
in regard to the existence of the power 
itself. In that respect the subsequent 
bona fide holder is in no better situation 
than the payee, except in so far as the 
latter would appear of necessity to 
have had cognizance of facts which 
the other cannot [must?] be presumed 
to have known." And the case is dis- 
tinguished from that of the Farmers' 
and Mechanics' Bank v. Butchers' and 
Drovers' Bank, 16 N. Y. 125, where 
the extrinsic fact affecting the author- 
ity related to the state of accounts 
between the bank and one of its cus- 
tomers, which could only be known 
to the teller and other officers of the 
bank. See also Brady v. Mayor, &c. 
of New York, 2 Bosw. 173; Hopple 
V. Brown Township, 13 Ohio, n. s. 
311; Veeder v. Lima, 19 Wis. 280. 
The subject is reviewed in Clark 
V. Des Moines, 12 Iowa, 209. Ihe 
action was brought upon city war- 
rants, negotiable in form, and of 
which the plaintiff claimed to be bona 
fide assignee, without notice of any 
defects. The city offered to show 
that the warrants were issued without 
any authority from the city council, 
and without any vote of the council 
authorizing the same. It was held 
that the evidence should have been 
admitted, and that it would consti- 
tute a complete defence. See further 
Head v. Providence, &c. Co., 2 



Cranch, 169; Royal British Bank v. 
Turquand, 6 El. & Bl. 327; Kuox 
County V. Aspinwall, 21 How. 544; 
Bissell V. Jeffersonville, 24 How. 
•287; Sanborn v. Deerfield, 2 N. H. 
254; Alleghany City v. McClurkan, 
14 Penn. St. 83 ; Morris Canal and 
Banking Co. v. Fisher, 1 Stock. 667 ; 
Clapp V. Cedar Co., 5 Iowa, 15; 
Commissioners, &c. v. Cox, 6 Ind. 
403; Madison and Indianapolis K. R. 
Co. V. Norwalk Savings Society, 24 
Ind. 457; Bird v. Daggett, 97 Mass. 
494. It is of course impossible to 
reconcile these authorities; but the 
doctrine in the case of Gould t'. Town 
of Stirling appears to us to be sound, 
and that, wherever a want of power 
exists, a purchaser of the securities is 
chargeable with notice of it, if the 
defect is disclosed by the corporate 
records, or, as in that case, by other 
records, where the power is required 
to be shown. See Fish v. Kenosha, 
26 Wis. 24, andMcClureii. Oxford, 94 
U. S. Rep. 429. That the powers of 
the agents of municipal corporations 
are matters of record, and the cor- 
poration not liable for an unauthor- 
ized act, see further Baltimore v. 
Eschbach, 18 Md. 276; Johnson v. 
Common Council, 16 Ind. 227. That 
bonds voted to one railroatl company 
and issued to another are void, see 
Big Grove v. Wells, 65 111. 263. 
Those who deal with a corporation 
must take notice of the restrictions in 
its charter, or in the general law, 
regarding the making of contracts. 
Brady v. Mayor, &c. of New York, 
2 Bosw. 173; 8. c. 20 N. Y. 312; 
Swift V. Williamsburg, 24 Barb. 427 ; 
Zabriskie v. Cleveland, &c. R. R. 
Co., 23 How. 381; Hull v. Marshall 
County, 12 Iowa, 142; Clark v. Des 
Moines, 19 Iowa, 199 ; McPherson o. 
Foster, 43 Iowa, 48 ; Marsh v. Super- 
visors of Fulton Co., 10 Wall. 676. 



CH. Vni.] THE GRADES OP MUNICIPAL GOVERNMENT. 271 

tions designed to limit the power of the * legislature [*218] 
to incur indebtedness on behalf of the State, and which 
clauses, it has been urged, were equally imperative in restraining 
indebtedness on behalf of the several political divisions of the 
State. The Constitution of Kentucky prohibited any act of 
the legislature authorizing any debt to be contracted on behalf 
of the Commonwealth, except for certain specified purposes, 
unless provision should be made in such act for an annual tax 
sufficient to pay such debt within thirty years ; and the act was 
not to have effect unless approved by the people. It was con- 
tended that this provision was not to apply to the Commonwealth 
as a mere ideal abstraction, unconnected with her citizens and 
her soil, but to the Commonwealth as composed of her people, 
and their territorial organizations of towns, cities, and counties, 
which make up the State, and that it embraced in principle every 
legislative act which authorized a debt to be contracted by any 
of the local organizations of which the Commonwealth was 
composed. The courts of that State held otherwise. " The 
clause in question," they say, " applies in terms to a debt con- 
tracted on behalf the Commonwealth as a distinct corporate 
body ; and the distinction between a debt on behalf of the Com- 
monwealth, and a debt or debts on behalf of one county, or of 
any number of counties, is too broad and palpable to 
admit of the supposition that the latter class of * debts [* 219] 
was intended to be embraced by terms specifically desig- 
nating the former only." ^ The same view has been taken by 
the courts of Iowa, Wisconsin, Illinois, and Kansas, of the pro- 
visions in the constitutions of those States restricting the power 

If they are not valid, no subsequent and obligation of such paper will not 

ratification by the corporation can be 'suffered to be impaired by subse- 

make them so. Leavenworth v. Ran- quent action of the courts overruling 

kin, 2 Kan. 357. If bonds are voted their former conclusions. See Steines 

upon a condition, and issued before v. Franklin County, 48 Mo. 107; 

theconditioniscompliedwith, this, as Osage, &c. E. R. Co. v. Morgan 

to bona fide holders, is a waiver of the County, 53 Mo. 156 ; Smith v. Clark 

condition. Chiniquy v. People, 78 Co., 54 Mo. 58; State v. Sutterfield, 

111. 570. Compare Supervisors of 54 Mo. 391 ; Columbia Co. v. King, 

Jackson V. Brush, 77 111. 59. 13 Fla. 421 ; Same v. Davidson, 13 

In some States, after paper has Fla. 482. 
been put afloat under laws which the i Slack ». Railroad Co., 13 B. 

courts of the State have sustained, Monr. 16. 
it is very justly held that the validity 



272 



CONSTITUTIONAL LIMITATIONS. 



[CH. vin. 



of the legislature to contract debts on behalf of the State in aid 
of internal improvements ; ^ but the decisions of the first-named 
State have since been doubted,^ and those in Illinois, it would 
seem, overruled.^ In Michigan it has been held that they were 
inapplicable to a constitution adopted with a clear purpose to 
preclude taxation for such enterprises.* 



1 Dubuque County v. Kailroad 
Co., 4 Greene (Iowa), 1; Clapp v. 
Cedar County, 5 Iowa, 15; Clark 
V. JanesTille, 10 Wis. 136; Bushnell 
V. Beloit, 10 Wis. 195; Prettyman v. 
Supervisors, 19 111. 406; Kobertson 
V. Rockford, 21 111. 451; Johnson v. 
Stark County, 24 111. 75; Perkins v. 
Lewis, 24 111. 208; Butler v. Dunham, 
27 111. 474; Leavenworth Co. v. Mil- 
ler, 7 Kan. 479. 

2 State V. Wapello County, 13 
Iowa, 388. And see People v. Su- 
pervisor, &c., 16 Mich. 254. 

' In People v. Mayor, &c. of 
Chicago, 51 111. 34, it is held expressly 
that the provision of the State consti- 
tution prohibiting the State from cre- 
ating a debt exceeding fifty thousand 
dollars without the consent of the 
people manifested at a general elec- 
tion, would preclude the State from 
creating a like debt against a mu- 
nicipal corporation, except upon the 
like conditions. And it was perti- 
nently said: "The protection of the 
whole implies necessarily the protec- 
tion of all its organized parts, and the 
whole cannot be secure while all or 
any of its parts are exposed to danger. 
What is the real value of this pro- 
vision of the constitution if the 
legislature, inhibited from incurring 
a debt beyond fifty thousand dollars 
on behalf of the State, may force a 
debt tenfold or one hundred-fold 
greater — for there is no limit to the 
power — upon all the cities of the 
State? We can perceive none. " We 
do not see how this can be reconciled 
with the earlier Illinois cases, and it 
is so manifestly right, it is hoped the 



learned court will never make the 
attempt. 

■* The following extract from the 
opinion in Bay City v. State Treas- 
urer, 23 Mich. 504, is upon this point: 
" Our State had had a bitter experi- 
ence of the evils of the government 
connecting itself with works of public 
improvement. In a time of inflation 
and imagined prosperity, the State 
had contracted a large debt for the 
construction of a system of railroads, 
and the people were oppressed with 
heavy taxation in consequence. More- 
over, for a portion of this debt they 
had not received what they bargained 
for, and they did not recognize their 
legal or moral obligation to pay for 
it. The good name and fame of the 
State suffered .in consequence. The 
result of it all was that a settled 
conviction fastened itself upon the 
minds of our people, that works of 
internal improvement should be pri- 
vate enterprises; that it was not in 
the proper province of government to 
connect itself with their construction 
or management, and that an impera- 
tive State policy demanded that no 
burdens should be imposed upon the 
people by State authority, for any 
such purpose. Under this conviction 
they incorporated in the constitution 
of 1850, under the significant title 
of 'Finance and Taxation,' several 
provisions expressly prohibiting the 
State from being a party to, or inter- 
ested in, any work of internal im- 
provement, or engaged in carrying on 
any such work, except in the expendi- 
ture of grants made to it; and also 
from subscribing to, or being inter- 



CH. VITI.J THE GRADES OF MUNICIPAL GOVERNMENT. 



273 



Another class of legislation, which has recently demanded the 
attention of the courts, has been little less troublesome, from the 



ested in, the stock of any company, 
association, or corporation, or loaning 
its credit in aid of any person, asso- 
ciation, or corporation. Art. XIV. 
§§ 9, 8, and 7. 

"All these provisions were in- 
corporated by the people on the con- 
stitution, as precautions against 
injudicious action by themselves, if 
in another time of inflation and ex- 
citement they should be tempted to 
incur the like burdensome taxation 
in order to accomplish public im- 
provements in cases where they were 
not content to wait the result of pri- 
vate enterprise. The people meant 
to erect such effectual barriers that 
if the temptation should return, the 
means of inflicting the like injury 
upon the credit, reputation, and 
prosperity of the State, should not 
be within the reach of the authori- 
ties. They believed these clauses of 
the constitution accomplished this 
purpose perfectly, and none of its 
provisions had more influence in 
recommending that instrument to the 
hearty good-will of the people. 

" In process of time, however, a 
majority in the legislature were found 
willing, against the solemn warning 
of the executive, to resort again to 
the power of taxation in aid of inter- 
nal improvement. It was discovered 
that though " the State " was ex- 
pressly inhibited from giving such aid 
in any form, except in the disposition 
of grants made to it, the subdivisions 
of which the State was composed were 
not under the like ban. Decisions in 
other States were found which were 
supposed to sanction the doctrine 
that, under such circumstances, the 
State might do indirectly through its 
subdivisions what directly it was for- 
bidden to do. Thus a way was 
opened by which the whole purpose 
of the constitutional provisions quoted 



might be defeated. The State could 
not aid a private corporation with its 
credit, but it might require each of 
its townships, cities, and villages to 
do so. The State could not load 
down its people with taxes for the 
construction of a public improvement, 
but it might compel the municipal 
authorities, which were its mere 
creatures, and which held their whole 
authority and their life at its will, to 
enforce such taxes, one by one, until 
the whole people were bent to the 
burden. 

" Now, whatever might be the just 
and proper construction of similar 
provisions in the constitutions of 
States whose history has not been the 
same with our own, the majority of 
this court thought when the previous 
case was before us, and they still 
think, that these provisions in our 
constitution do preclude the State 
from loaning the public credit to pri- 
vate corporations, and from imposing 
taxation upon its citizens or any por- 
tion thereof in aid of the construction 
of railroads. So the people supposed 
when the constitution was adopted. 
Constitutions do not change with the 
varying tides of public opinion and 
desire ; the will of the people therein 
recorded is the same inflexible law 
until changed by their own deUbera- 
tive action ; and it cannot be permis- 
sible to the courts that in order to aid 
evasions and circumventions, they 
shall subject these instruments, which 
in the main only undertake to lay 
down broad general principles, to a 
literal and technical construction, as 
if they were great public enemies 
standing in the way of progress, and 
the duty of every good citizen was to 
get around their provisions whenever 
practicable, and give them a dam- 
aging thrust whenever convenient. 
They must construe them, as the 



18 



274 CONSTITUTIONAL LIMITATIONS. [CH. THL 

new, varied, and peculiar questions involved, than that in rela- 
tion to municipal subscriptions in aid of internal improvements. 
As the power to declare war and to conduct warlike operations 
rests in the national government, and that government is vested 
with unlimited control of all the resources of the country for 
those purposes, the duty of national defence, and, consequently, 
the duty to defend all the citizens as well as all the property of all 
the municipal organizations in the several States, rests upon the 
national authorities. This much is conceded, though in a qualified 
degree, also, and, subordinate to the national government, a like 
duty rests doubtless upon the State governments, which may 
employ the means and services of their citizens for the purpose. 
But it is no part of the duty of a township, city, or county, as 
such, to raise men or money for warlike operations, nor have they 
any authority, without express legislative sanction, to impose 
upon their people any burden by way of taxation for any such 
purpose.^ Nevertheless, when a war arises which taxes all the 
energies of the nation, which makes it necessary to put into the 
field a large proportion of all the able-bodied men of the country, 
and which renders imperative a resort to all available means for 

filling the ranks of the army, recruiting the navy, and 
[* 220] replenishing the national treasury, the question * becomes 

a momentous one, whether the local organizations — 
those which are managed most immediately by the people them- 
selves — may not be made important auxiliaries to the national 
and State governments in accomplishing the great object in 
which all alike are interested so vitally ; and if they are capable 
of rendering important assistance, whether there is any constitu- 
tional principle which would be violated by making use of these 
organizations in a case where failure on the part of the central 
authority would precipitate general dismay and ruin. Indeed, 
as the general government, -with a view to convenience, economy, 

people did in their adoption, if the 47; Webster v. Harwinton, 32 Conn. 

means of arriving at that construction 131. See also Claflin i>. Hopkinton, 

are within their power. In these cases 4 Gray, .502; Cover v. Baytown, 12 

we thought we could arrive at it from Minn. 124; Fiske v. Hazzard, 7 K. I. 

the public history of the times." 438; Alley v. Edgecomb, 53 Me. 446; 

1 Stetson V. Kempton, 13 Mass. People v. Supervisors of Columbia, 

272; Gove». Epping, 41 N. H. 545; 43 N. Y. 130; Walschlager v. Lib- 

Crowell V. Hopkinton, 45 N. H. 9; erty, 23 Wis. 362; Burril v. Boston, 

Baldwin v. North Branford, 32 Conn. 2 Cliff. 590. 



CH. Vin.] THE GRADES OF MUNICIPAL GOVEEKMBNT. 275 

and promptness of action, will be very likely to adopt, for any 
purposes of conscription, the existing municipal divisions of the 
States, and its demand for men to recruit its armies will assume 
a form seeming to impose on the people whose municipal organi- 
zation embraces the territory covered by the demand, the duty of 
meeting it, the question we have stated may appear to be one 
rather of form than of substance, inasmuch as it would be diffi- 
cult to assign reasons why a duty resting upon the citizens of a 
municipality may not be considered as resting upon the corpora- 
tion itself of which they are the constituents, and if so, why it 
may not be assumed by the municipality itself, and then be dis- 
charged in like manner as any other municipal burden, if the 
legislature shall grant permission for that purpose. 

One difficulty that suggests itself in adopting any such doc- 
trine is, that, by the existing law of the land, able-bodied men 
between certain specified ages are alone liable to be summoned 
to the performance of military duty ; and if the obligation is 
assumed by the municipal organizations of the State, and dis- 
charged by the payment of money or the procurement of sub- 
stitutes, the taxation required for this purpose can be claimed, 
with some show of reason, to be taxation of the whole community 
for the particular benefit of that class upon whom by the statutes 
the obligation rests. When the public funds are used for the 
purpose, it will be insisted that they are appropriated to discharge 
the liabilities of private individuals. Those who are already 
past the legal age of service, and who have stood their chance 
of being called into the field, or perhaps have actually rendered 
the required service, will be able to urge with considerable force 
that the State can no longer honorably and justly require them 
to contribute to the public defence, blit ought to insist that those 
within the legal ages should perform their legal duty ; and if any 
upon whom that duty rests shall actually have enrolled them- 
selves in the army with a view to discharge it, such persons may 
claim, with even greater reason, that every consideration 
of * equality and justice demands that the property they [* 221] 
'leave behind them shall not be taxed to relieve others 
from a duty equally imperative. 

Much may be said on both sides of this subject, but the judicial 
decisions are clear, that the people of any municipal corporation 
or political division of a State have such a general interest in 



276 CONSTITUTIONAL LIMITATIONS. [CH. Vin. 

relieving that portion of their fellow-citizens who are liable to 
the performance of military duty, as will support taxation or 
render valid indebtedness contracted for the purpose of supplying 
their places, or of filling any call of the national authorities for 
men, with volunteers who shall be willing to enter the ranks 
for such pecuniary inducements as may be offered them. The 
duty of national defence, it is held, rests upon every person 
under the protection of the government who is able to contribute 
to it, and not solely upon those who are within the legal ages. 
The statute which has prescribed those ages has for its basis the 
presumption that those between the limits fixed are best able to 
discharge the burden of military service to the public benefit, 
but others ai-e not absolved from being summoned to the duty, 
if at any time the public exigency should seem to demand it. 
Exemption from military duty is a privilege rather than a right, 
and, like other statutory privileges, may be recalled at any time 
when reasons of public policy or necessity seem to demand the 
recall.! Moreover, there is no valid reason, in the nature of 
things, why those who are incapable of performing military ser- 
vice, by reason of age, physical infirmity, or other cause, should 
not contribute, in proportion to their ability, to the public de- 
fence by such means as are within their power ; and it may well 
happen that taxation, for the purpose of recruiting the armies of 
the nation, will distribute the burden more equally and justly 
among all the citizens than any other mode which could be de- 
vised. Whether it will be just and proper to allow it in any 
instance must rest with the legislature to determine ; but it is 
unquestionably competent, with legislative permission, for towns, 
cities, and counties to raise money by loans or by taxation to pay 
bounty moneys to those who shall volunteer to fill any call 
made upon such towns, cities, or counties to supply men for the 
national armies.^ 

1 See post, p. *383 , and cases cited was raging, and congress provided in 
in note. the second section of the act of 24th 

2 " The power to create a public February, 1864, that the quota of the 
debt, and liquidate it by taxation, is troops of each ward of a city, town,* 
too clear for dispute. The question township, precinct, &c., should be as 
is, therefore, narrowed to a single nearly as possible in proportion to the 
point : Is the purpose in this instance number of men resident therein liable 
a public one? Does it concern the to render military service. Section 
common welfare and interest of the three provided that all volunteers who 
municipality? Let us see? Civil war may enlist after a draft shall be or- 



CH. Vin.] THE GRADES OP MUNICIPAL GOVERNMENT. 277 



* Relief of the community from an impending or posr [* 222] 
Bible draft is not, however, the sole consideration which 
will support taxation by the municipal corporations of the State 
to raise money for the purpose of paying bounties to soldiers. 
Gratitude to those who have entered the military service, whether 
as volunteers or drafted men, or as substitutes for others 
who were drafted or were * liable to be, is a considera- [* 223] 



dered shall be deducted from the num- 
ber ordered to be drafted in such -ward, 
town, &o. Volunteers are therefore 
by law to be accepted in relief of the 
municipality from a compulsory ser- 
vice to be determined by lot or chance. 
Does the relief involve the public 
welfare or interest ? The an s wer rises 
spontaneously in the breast of every 
one in the community liable to the 
military burden. It is given, not by 
the voice of him alone who owes the 
service, but swells into a chorus from 
his whole family, relatives, and friends. 
Military service is the highest duty 
and burden the citizen is called to 
obey or to bear. It involves lite, 
limb, and health, and is therefore a 
greater ' burden ' than the taxation of 
property. The loss or the injury is 
not confined to the individual himself, 
but extends to all the relations he 
sustains. It embraces those bound to 
him in the ties of consanguinity, 
friendship, and interest; to the com- 
munity which must furnish support to 
his family, if he cannot, and which 
loses in him a member whose labor, 
industry, and property contribute to 
its wealth and its resources ; who 
assists to bear its burdens, and whose 
knowledge, skill, and public spirit con- 
tribute to the general good. Clearly 
the loss of that part of the population 
upon whom the greatest number de- 
pend, and who contribute most to the 
public welfare, by their industry, skill, 
and property, and good conduct, is a 
common loss, and therefore a general 
injury. These are alike subject to 
the draft. The blind and relentless 
lot respects no age, condition, or rank 



in life. It is, therefore, clearly the 
interest of the community that those 
should serve who are willing, whose 
loss will sever the fewest ties, and 
produce the least injury. 

" The bounty is not a private trans- 
action in which the individual alone is 
benefited. It benefits the public by 
inducing and enabling those to go 
who feel they can best be spared. It 
is not voluntary in those who pay it. 
The community is subject to the 
draft, and it is paid to relieve it from 
a burden of war. It is not a mere 
gift or reward, but a consideration for 
services. It is therefore not a confis- 
cation of one man's property for an- 
other's use, but it is a contribution 
from the public treasury for a general 
good. In short, it is simply taxation 
to relieve the municipality from the 
stern demands of war, and avert a 
public injury in the loss of those who 
contribute most to the public wel- 
fare." Speer v. School Directors of 
Blairsville, 50 Penn. St. 159. See 
also Waldo v. Portland, 33 Conn. 363; 
Bartholomew v. Harwinton, 33 Conn. 
408; Fowler B. Danvers, 8 Allen, 80; 
Lowell V. Oliver, 8 Allen, 247 ; Wash- 
ington County V. Berwick, 56 Penn. 
fct. 466; Trustees of Cass v. Dillon, 
16 Ohio, N. B. 38; State v. Wilkes- 
barre, 20 Ohio, n. s. 292. Also Opin- 
ions of Justices, 52 Me. 595, in which 
the view is expressed that towns can- 
not, under the power to raise money 
for " necessary town charges," raise 
and pay commutation moneys to re- 
lieve persons drafted into the military 
service of the United States. 



278 CONSTITUTIONAL LIMITATIONS. [CH. Vin. 

tion which the State may well recognize, and it may com- 
pensate the service either by the payment of bounty moneys 
directly to such persons, or by provision for the support of those 
dependent upon them while they shall be absent from their homes. 
Whether we regard such persons as public benefactors, who, hav- 
ing taken upon themselves the most severe and dangerous duty 
a citizen is ever called upon to perform, have thereby entitled 
themselves to public reward as an incentive to fidelity and cour- 
age, or as persons who, having engaged in the public service for 
a compensation inadequate to the toil, privation, and danger in- 
curred, are deserving of the bounty as a further recognition on 
the part of the community of the worth of their services, there 
seems in either case to be no sufScient reason to question the 
right of the legislature to authorize the municipal divisions of 
the State to raise moneys in any of the usual modes, for the 

purpose of paying bounties to them or their families, 
[* 224] in recognition of such services.^ * And if a municipal 

corporation shall have voted moneys for such purpose 

without legislative authority, it is competent for the 
[* 225] * legislature afterwards to legalize their action if it shall 

so choose.2 

1 The act under which the Penn- Conn. 118; Bartholomew v. Harwin- 
sylvania case, cited in the preceding ton, 33 Conn. 408; Crowell v. Hop- 
note, was decided, authorized the kinton, 45 N. H. 9; Shackford ». 
borough to contract a debt for the Newington, 46 N. H. 415; Lowell v. 
payment of three hundred dollars to Oliver, 8 Allen, 247; Ahl v. Gleim, 
each non-commissioned officer and 52 Penn. St. 432; Weister ». Hade, 
private who might thereafter volun- 52 Penn. St. 474; Coffman v. Keight- 
teer and enter the service of the ley, 24 Ind. 509; Board of Commis- 
United States, and be credited upon sioners u. Brearss, 25Ind. 110; Connor 
the quota of the borough under an v. Fulsom, 13 Minn. 219 ; State o. 
impending draft. The whole purpose, Demorest, 32 N. J. 528; Taylor ». 
therefore, was to relieve the commu- Thompson, 42 111. 9 ; Barbour v. Cam- 
nity from the threatened conscription, den, 51 Me. 608 ; Hart v. Holden, 55 
But in the case of Brodhead i'. Mil- Me. 572; Burnham v. Chelsea, 43 Vt. 
wankee, 19 Wis. 652, it was held 69; Butler v. Pultney, 43 Vt. 481. 
constitutional, not only to provide for In State v. Jackson, 33 N. J. 450, a 
the future by such municipal taxation, statute authorizing a town to raise 
but also to raise moneys to pay boun- money by tax to relieve its inhabi- 
ties to volunteers previously enlisted, tants from the burden of a draft under 
and even to those who should there- a law of Congress, was held void as 
after procure substitutes for them- tending to defeat the purpose of such 
selves, and have them credited on the law. The decision was made by a 
municipal quota. bare majority of a bench of eleven 

2 Booth V. Town of "Woodbury, 32 judges. Compare O'Hara v. Carpen- 



CH. VIII.] THE GBADBS OP MUKICIPAL GOVERNMENT. 279 

* The cases to which we have referred in the notes [* 226] 
assume that, if the purpose is one for which the State 
might properly levy a tax upon its citizens at large, the legis- 
lature would also have power to apportion and impose the duty, 
or confer the power of assuming it upon the towns and other 
municipal or political divisions. And the rule laid down is one 
which opens a broad field to legislative discretion, allow- 
ing as it does the raising and * appropriation of moneys, [* 227] 
whenever, in the somewhat extravagant words of one of 
the cases, there is " the least possibility that it will be promotive 
in any degree of the public welfare." ^ The same rule, substan- 
tially, has been recognized by the Court of Appeals of New York. 
" The legislature is not confined in its appropriation of the pub- 
lic moneys, or of the sums to be raised by taxation in favor of 
individuals, to cases in which a legal demand exists against the 
State. It can thus recognize claims founded in equity and justice 
in the largest, sense of these terms, or in gratitude or charity. 
Independently of express constitutional restrictions, it can make 
appropriations of money whenever the public well-being requires 
or will be promoted by it, and it is the judge of what is for the 
public good. It can, moreover, under the power to levy taxes, 
apportion the public burdens among all the tax-paying citizens 
of the State, or among those of a particular section or political 
division." 2 And where citizens have voluntarily advanced mon- 
eys for the purpose of paying bounties to recruits who fill the 
quota of a municipal corporation, on an understanding, based 
upon informal corporate action, that the moneys should be re- 
funded when a law should be passed permitting it, a subsequent 
act of the legislature authorizing taxation for this purpose is 
valid.* . 

However broad are the terms employed in describing the legis- 

ter, 23 Mich. 410, in which a contract Sharpless v. Mayor, &c. , 21 Penn. St. 

of insurance against a military draft 174, following Cheaney v. Hooser, 

was held void on grounds of public 9 B. Monr. 345. 

policy. '^ Guilford v. Supervisors of Che- 

1 Booth e. 'Woodbury, 32 Conn, nango, 13 N. Y. 149. 

128, per Butler, J. "To make a tax » Weister v. Hade, 52 Penn. St. 

law unconstitutional on this ground, it 474. And see People v. Sullivan, 43 

must be apparent at first blush that 111. 413 ; Johnson v. Campbell, 49 111, 

the community taxed can have no 316. Compare Susquehanna Depot 

possible interest in the purpose to v. Barry, 61 Penn. St. 317. 
which their money is to be applied." 



280 



CONSTITUTIONAL LIMITATIONS. 



[cH. vm. 



lative power over taxation in these cases, it is believed that no 
one of them has gone so far as to sanction taxation or the appro- 
priation of the public revenue in order to refund to individuals 
moneys which they may have paid to relieve themselves from an 
impending draft, or may have voluntarily contributed to any 
public purpose, from motives purely personal to themselves, with- 
out any reason to rely upon the credit of the State, or of any 
municipal corporation, for reimbursement, and where the circum- 
stances are not such as fairly to challenge the public gratitude. 
Taxation in such a case, where no obligation, honorary or other- 
wise, rests upon the public, would be nothing else than a naked 
case of appropriating the property of the tax-payer for private 
purposes, and that, too, without reference to anticipated public 
benefits.^ 



1 Tyson v. School Directors, &c., 
51 Penn. St. 9. A meeting of persons 
liable to draft under the law of the 
United States was called, and an asso- 
ciation formed, called the Halifax 
Bounty Association, which levied an 
assessment of thirty dollars on each 
person liable to military duty in the 
township, and solicited contributions 
from others. Afterwards, an act was 
passed by the legislature, with a pre- 
amble reciting that certain citizens of 
Halifax township, associated as the 
Halifax Bounty Association, for free- 
ing the said township from the late 
drafts, advanced moneys, which were 
expended in paying bounties to vol- 
unteers to fill the quota of the town- 
ship. The act then authorized and 
required the school directors to bor- 
row such sums of money as would 
fully reimburse the said HalifjJx 
Bounty Association for moneys ad- 
vanced to free said township from 
the draft, and then further authorized 
the school directors to levy and collect 
a tax to repay the sums borrowed. 
The court say : " We are bound to 
regard the statute as an authority to 
reimburse what was intended by the 
Association as advances made to the 
township with the intent or under- 
standing to be reimbursed or returned 



to those contributing. This was the 
light in which the learned judge below 
regarded the terms used; and unless 
this appears in support of the present 
levy by the school directors, they are 
acting without authority. But the 
learned judge, if I properly compre- 
hend his meaning, did not give suffi- 
cient importance to these terms, and 
hence, I apprehend, he fell into error. 
He does not seem to have considered 
it essential whether the Association 
paid its money voluntarily in aid of 
its own members, or expressly to aid 
the township in saving its people from 
a draft, with the understanding that 
it was advanced in the character of a 
loan if the legislature chose to direct 
its repayment, and the school directors 
chose to act on the authority con- 
ferred. This we cannot agree to. 
Such an enactment would not be 
legislation at all. It would be in the 
nature of judicial action, it is true ; 
but wanting the justice of notice to 
the parties to be affected by the hear- 
ing, trial, and all that gives sanction 
and force to regular judicial proceed- 
ings, it would much more resemble 
an imperial rescript than constitu- 
tional legislation : first, in declaring 
an obligation where none was created 
or previously existed; and next, in 



CH. VIII.j THE GRADES OF MUNICIPAL GOVERNMENT. 281 

* But it has been held by the Supreme Court of Mas- [* 228] 
sachusetts that towns might be authorized by the legis- 
lature to raise moneys by taxation for the purpose of refunding 
sums contributed by individuals to a common fund, in order to 
fill the quota of such towns under a call of the President, not- 
withstanding such moneys might have been contributed without 
promise or expectation of reimbursement. The court 

were of opinion that such contributions * might well be [* 229] 
considered as advancements to a public object, and, being 
such, the legislature might properly recognize the obligation and 
permit the towns to provide for its discharge.^ 

* On a preceding page we have spoken in strong terms [* 230] 
of the complete control which is possessed by the legis- 
lative authority of the State over the municipal corporations. 
There are nevertheless some limits to its power in this regard, as 
there are in various other directions limits to the legislative 
power of the State. Some of these are expressly defined ; others 
spring from the usages, customs, and maxims of our people ; they 
are a part of its history, a part of the system of local self-govern- 
ment in view of the continuance and perpetuity of which all our 
constitutions are framed, and of the right to which the people can 
never be deprived except through express renunciation on their 
part. One undoubted right of the people is to choose, directly 

decreeing payment by directing the In Freeland «. Hastings, 10 Allen, 

money or property of the people to 570, it was held, that the legislature 

be sequestered to make the payment, could not empower towns to raise 

The legislature can exercise no such money by taxation for the purpose 

despotic functions ; and as it is not of refunding what had been paid by 

apparent in the act that they at-, individuals for substitutes in military 

tempted to do so, we are not to pre- service. In Cass v. Dillon, 16 Ohio, 

sume that they did. They evidently n. < 8. 38, it was held that taxes to 

intended the advancements to be reim- refund bounties previously and volun- 

bursed to be only such as were made tarily paid might be authorized. See 

on the faith that they were to be also State v. Harris, 17 Ohio, sr. s. 

returned." See also Crowell u. Hop- 608. The Supreme Court of Wis- 

kinton, 45 N. H. 9 ; Miller v. Grandy, cousin, in the well-reasoned case of 

13 Mich. 540 ; Pease v. Chicago, 21 State v. Tappan, 29 Wis. 664, deny 

111. 508 ; Ferguson v. Landraw, 5 the power of the State to compel a