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't-'j' 'u,t '. .
tid-.. » ; -i-o
.r K^-
\
C9e j^m6ooft ^mee
Of elementary treatises on all the principal subjects of the law.
The special features of these books are as follows:
1. A succinct statement of leading principles In black-letter typa*
2. A more extended commentary, elucidating the principles.
3. Notes and authorities.
Published in regular octavo form, and sold at the uniform price of
f 3.76 per Toliuiie, inoludins deliTevy.
Bound in American Law Buckram.
1. Norton on Bills and Notes. (3d Ed.)
t. Clark on Criminal Law. (2d Ed.)
8. Shipman on Common-Law Pleading. (2d Bd.)
4. Clark on Contracts. (2d Ed.)
6. Black on Constitutional Law. (8d Ed.)
6. Fetter on Equity.
7. Clark on Criminal Procedure.
8. Tiffany on Sales. (2d Ed.)
9. Glenn on International Law.
10. Jaggax'd on Torts. (2 vols.)
11. Black on Interpretation of Laws. (Sd Bd.)
12. Hale on Bailments and Carriers.
18. Smith on Elementary Law.
14. Hale on Damages. (2d Ed.)
16. Hopkins on Real Property.
16. Hale on Torts.
17. Tiffany on Persons and Domestic Relations. (Id Ed.)
18. Croswell on Ehcecutors and Administrators.
19. Clark on Corporations. (2d Ed.)
20. George on Partnership.
21. Shipman on Equity Pleading.
22. McKelvey on Evidence. (2d Ed.)
28. Barrows on Negligence.
24. Hughes on Admiralty.
26. Eaton on Equity.
26. Tiffany on Principal and AgenL
27. Gardner on Wills.
28. Vance on Insurance.
29. Ingersoll on Public Corporations.
80. Hughes on Federal Jurisdiction and Procedural (Id Ed.)
81. Chllds on Surety and Guaranty.
82. (3ostigan on American Mining Law.
38. Wilson on International Law.
84. Gilmore on Partnership.
35. Black on Judicial Precedents.
86. Tiffany on Banks and Banking.
87. Cooley on Municipal (Corporations.
In preparation: Handbooks of the law on other subjects to be an*
nounced later.
Pnbllabed and for aale by
WEST puBUSHnra co., st. PAinu mxhk.
?
C35855k
HANDBOOK
OF
AMERICAN
CONSTITUTIONAL LAW
BY
HENRY CAMPBELL BLACK, M.A.
AOTHOK OF BLACK'S LAW DICTIONARY AND OF TREATISES ON JUDGMENTS, TAX TITLES.
UrrOXICATING LIQDORS. BANKRUPTCY, MORTGAGES. CONSTITUTIONAL
FROHDinONS, INTERPRETATION OF LAWS, ETC
THIRD EDITION
ST. PAUL, MINN.
WEST PUBLISHING COMPANY
1910
t.
V
I
OOPTBIOHT, 1896
BY
WEST PUBLISeiNQ COMPANY
COFTBIOHT, 1897
BY
WEST PUBLISHING COMPANY
COPTBIGHT, 1010
BT
WEST PUBLISHING OOMPANY
PREFACE TO THE THIRD EDITION.
Th^ period of twelve years which has elapsed since the publication of
the second edition of this book has witnessed extremely important de-
velopments in American constitutional law. This has resulted not so
much from the evolution of new principles as from the necessity of
appl3ring old and well-established rules to new forms of legislation.
The social and economic history of a people is reflected in its laws;
and it must be evident to the most casual observer of contemporary
events that the increasing complexity of our social and industrial life,
the development of new forms of business and of commercial organiza-
tion, the multiplication of the agencies of government, and the expan-
sion of national influence at home and abroad, have brought forth an
abundant harvest of new statutes, some of them wise and salutary,
some experimental, many partial and invidious, but all to be brought
to the ultimate test of constitutional validity under the calm scrutiny of
the courts.
The student of constitutional law will not fail to note the marked and
increasing tendency of modem times to delegate subordinate legisla-
tive functions, as well as executive authority, to boards, commissions,
and administrative officers. Nor can he overlook the highly significant
tendency of law-making bodies to encroach more and more upon the
limits of individual liberty, by constant extensions of the police power
to new subjects or new boundaries, and their growing disposition to
interfere with the natural evolution of business and industry and to
restrict and regulate all manner of trades and occupations. The whole
body of statutes against ''trusts" and monopolies, though resting on
foundations laid deep in the common law, is the product of recent
years ; and the activity of legislatures in enacting, and of executive offi-
cers in enforcing, laws of this character is a phenomenon of great
interest alike to the publicist and to the constitutional lawyer. The
same remark applies to the notable tendency to make new and more
minute regulations for the operation, the public relations, and the
taxation of railroads and other public-service corporations of every
sort. Nor can we omit to note, among the legislative incidents of the
last few years, the many enactments relating to capital and labor, rn
the direction of employers' liability acts, statutes regulating the hours
of labor, and many other cognate subjects, as well as the highly im-
(▼)
yi PBEFAGB.
portant recent discussions of strikes and boycotts and the subject of
organized labor as a ''trust/' Moreover, many novel and interesting
questions have grown out of the acquisition by the United States of
insular possessions beyond the seas ; and the boundaries of federal and
state authority in respect to many of the subjects above mentioned have
been the theme of earnest and even partisan controversy.
The author has been profoundly interested in these matters, and has
endeavored, in this edition of his book, to give them an exhaustive and
critical consideration, citing all the best available authorities. He has
also subjected the entire work to a thorough revision and added to it a
very great number of the more recent decisions, supplementary to
those already included, bearing upon its various topics and principles.
That the book may prove equally interesting to the students and prac-
titioners of the law, and that it may now enter upon a new and more
widely extended career of usefulness, is his earnest hope, in which he
is encouraged by the very gratifying measure of favor and applause
with which this and his other contributions to the literature of the law
have been received by the profession. H. C. B.
Wabhinoton* D. C
April 1, 1910.
NOTICE BY THE PUBLISHERS.
Mention should here be made of a new form of service now, for the
first time, introduced in the Hornbook Series (by the publishers), i. e.,
the "Key-Number Annotations." Throughout this volume, in connec-
tion with each cited case references are given to the title and section
number under which the several legal propositions are placed in the
Decennial Digest and its continuations (the "Key-Number Series").
As a uniform system of classification and section numbering is now
followed throughout the National Reporter System and the American
Digest System, these "Key-Number" references make it practicable
for the reader to find other decisions on the same point, almost mechan-
ically, not only in the Century and Decennial Digests, but in the cur-
rent issues of the American Digest and in the bound volume and ad-
vance sheet indexes of the Reporter System. Thus, every proposition
of law in this volume to which a case has been cited is directly related
to the whole line of pertinent authorities, past and future, and, by
means of the "Key Numbers," may be kept constantly up to date with-
out the labor of topical search.
PREFACE TO THE FIRST EDITION.
This hock is intended primarily for the use of students at law and
instructors in the law schools and universities. It contains a con-
densed review of all the leading principles and settled doctrines of
American constitutional law, whether arising under the federal con-
stitution or those of the individual states. These principles and doc-
trines are stated in the form of a series of brief rules, or proposi-
tions, numbered consecutively throughout the book, and are explained,
amplified, and illustrated in the subsidiary text, and supported by the
citation of pertinent authorities. The necessary limitation of space,
as well as the purpose and plan of the work, have precluded any at-
tempt at exhaustive discussion or minute elaboration of the great top-
ics of constitutional law. But the book is believed to be comprehensive
of the general subject and sufficiently detailed to equip the student
with an accurate general knowledge of the whole field. And since
the solution of new questions must be sought, not alone in the applica-
tion of precedents, but also in the settled rules and the accepted can-
ons of interpretation, and since the mind is often best prepared for the
investigation of a specific problem by a rapid synoptical review of the
results already worked out by the courts in that department to which
it belongs, it is hoped that general practitioners may find the book to
possess a special value for themselves. It would have been undesira-
ble, even if it were possible, to discuss in these pages all the thousands
of reported cases which bear upon the subject of constitutional law.
Such an accumulation of authorities would have cumbered the work to
the point of destroying its utility. But a very considerable number of
the more important and valuable decisions have been suitably referred
to, and more, perhaps, than any student would have time or occasion to
read. But it was thought that both student and practitioner would
appreciate the advantage of being directed to the principal authorities,
especially as they may have occasion to study certain special topics
with more detail and particularity than the handbook itself could un-
dertake.
The subject of constitutional law is not free from disputed and un-
settled questions. In respect to these, the author has invariably stated
(vii)
ylii PBEFAOB
what he conceives to be the sound rule or the best principle for their
interpretation. If his disposition of such topics should at times ap-
pear summary, or even dogmatic, it must be ascribed to the necessity
for condensation, not to any failure to appreciate the possible argu-
ments on both sides of the question. H. C. B.
Washington, D. C,
January, 1885k
TABLE OF CONTENTS.
OHAFTEB L
DEriNrnoNs and general principles.
8«ctloB Page
1. GoDBtitutional Law Defined. 1
2-8. Oonstitation Defined 1-4
4. Meaning of '^Constitutional" and "UnconstUutionar' 4-5
& Written and Unwritten Constitutions 5-7
a. Constitutions Not tlie Source of Rights 7-9
7. Bills of Rights. »-10
a Ri^t of Revolution 10-11
a Political and Personal Responsibility. 11-14
OHAFTEB n.
THE UNITED STATES AND THE STATES.
10-11. Nature of tbe Americap Union. 1&-22
12. Sovereignty and Rights of the States 22-30
la Sovereignty of the People 80
14. Form of Government in the United States 81-32
1& Tbe Union Indestructible 82^-33
la Nature of the Federal Constitution 83-^4
17. The Constitution as a Grant of Powers 85-36
la The Constitntion as the Supreme Law 86-37
B8TABU8HMENT AND AMENDMENT OF CONSTITUTION&
la Government of the Colonies. 88-89
2a The Continental Congress and the Articles of Confedera-
tion 40-43
2L EMablishment of the Federal Constitution 43-45
Amendment of the Federal Constitution 45-48
25-27. Establishment of State Constitutions..... 48-49
2ft'29L Amendment of State Constitutions. 49-54
Bi*.C0H8T Ji.(3o Ed.) (iz)
TABLB or CONTENTS.
OTTAPTEB IV.
CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS.
Section Page
30. • Office and Duty of the Judiciary 55
31. Adjudging Unconstitutionality 5(MK)
3Z The Court 60-62
33. Full Bench 62-e3
34. Nature of the Litigation 63
35. Parties Interested 63-«5
36. Necessity of Decision 65-^
37. Construction 66-67
38. Executive Construction 67
39. Presumption of Legality 68
40. Reference to Journals of Legislature 69
41. Motives of Legislature 60
42. Policy of Legislation 70-71
43. Natural Justice 72-73
44. Partial Unconstitutionality 73-74
46. Preamble 74
46. Effect of Decision 75
47. Construction of Constitutions — Method 75-76
48-49. Intent to be Sought 76-81
OTTAPTEB V.
THE THREE DEPARTMENTS OF GOVERNMENT.
60. Classification of Governmental Powers 82
51. Separation of Governmental Powers 83-85
62-53. The Separation not Absolute 85
54. Limitations on the Three Departments of Government 85-96
55. Administrative Boards, Officers, and Commissions 96-99
56. Political Questions 100-102
57. Advisory Opinions by the Courts. 103-104
OTTAPTEB VL
THE FEDERAL EXECUTIVE.
68. The President 105
59. The Vice-President 105
60-61. Election of President and Vice-President 105-108
B2. Qualifications of President 108
68. Vacancy in Office of President * 108-100
64. Compensation of President 109-110
65. Oath of Office of President 110
TABLE OF CONTENTS. XI
Section Page
66. Independence of the Executive 111-112
e7-6& Veto Power of President 112-114
69. Military Powers of President 114-117
70-73. The Cabinet 117-121
74. Pardoning Power 121-122
75-76. The Treaty-Making Power 122-126
77-78. Appointments to Office 127-181
79. Presidential Messages. 132
80. Convening and Adjourning Congress 132-133
81. Diplomatic Relations 133-134
82. Execution of the Laws *. 134r-136
Impeachment 136-139
OHAFTEB Vn.
TBDERAL JURISDICTION.
Courts of the United States ;140-145
89. Judicial Power of the United States 146-166
90. United States as a Party 166-168
91. States as Parties 168-174
92-93. Jurisdiction of Supreme Court 175-179
94-97. Powers and Procedure of Federal Courts 180-192
sa Bemoyal of Causes 193-195
OTTAPTEB VnL
THE POWERS OP CONGRESS. ^
99. Constitution of Congress 106-198
100-101. Organization and Government of Congress 198-202
102. Powers of Congress Delegated 202-203
103-104. Exclusive and Concurrent Powers 203-205
105. Ekiumerated Powers of Congress 205-284
106. Implied Powers 284^286
107. Limitations on Powers of Congress 287-290
INTERSTATE LAW AS DETERMINED BY TOE CONSTITUTION.
106-110. General Principles 291
111. Privileges of Citizens 292-296
112. Public Acts and Judicial Proceedings 290-300
lia-116. Interstate Extradition 300-308
xU
TABLE OF CONTBNT8.
THE ESTABLISHMENT OF REPUBLICAN GOVERNMENT.
Section . Page
117-119. Republican Government Guarantied 309-313
120. Reconstruction 313
EXECUTIVE POWER IN THE STATES.
121-123. State Executive Officers 314-318
124-125. Independence of Executive 318-319
12a Powers of Governor 320-329
OHAFTEB Xn.
JUDICIAL POWERS IN THE STATES.
127. System of Courts 330-332
128. Constitutional Courts 332-^34
129. Statutory Courts 334r-335
130-131. Judges 336
132-134. Jurisdiction 337-339
135. Process and Procedure 331^-340
OHAFTEB Xm.
LEGISLATIVE POWER IN THE STATES.
136. Organization and Government of Legislature 341-351
137. Legislative Power of States in General 351-352
13a-140. Limitations Imposed by the Federal Constitution 353-3G1
141. Implied Limitations In State Constitutions 3(32-3G9
142. Private, Special, and Local Legislation 369-373
143-144. Delegation of Legislative Powers 373-378
145-146. Enactment of Laws 378-382
147-149. Titie and Subject-Matter of Statutes 382-386
OHAFTEB XIV.
THE POLICE POWER.
150. Definition and General Considerations 387-389
151. Police Power Inalienable 389
152. Scopeof the Power 889-390
TABIiB OF CONTENTS.
ziii
Page
153w Location of the Police Power 391
154. Police Power Vested In Congress 391-394
155. PoUce Power of the States 394r^34
15a limltatlona of the PoUce Power 434-440
THE POWER OF TAXATION.
157-158L General Considerations 441-444
150. Independence of Federal and State Goyernments 444 451
16D. Limitations Imposed by Federal Constitution 451-452
lCl-162. limitations Imposed by State Constitutions 452-^454
1C3-1BI. Purposes of Taxation 4547-450
les-iee. Equality and Uniformity in Taxation 4r»9-464
lC7-ie9. Double Taxation 4(J4-46«
170. Taxation and Representation 466-467
17L Taxation Under the Police Power 467
OTTAPTEB. XVI.
THE RIGHT OF EMINENT DOMAIN.
172L Definition and Nature of the Power 4GS-470
173. Constitutional Provisions 470-471
174. By Whom the Power is Exercised 471-473
175. Legislative Authority Necessary 474
176l Strict Construction of Statutes 475-476
177-179. The Purpose must be Public 476-481
180. What Property may be Taken 482-487
ISl. Appropriation to New Uses 487-489
182. The Taldng 489-492
183. Consequential Injuries 493--495
ISi, Compensation 495-503
MUNICIPAL CORPORATIONS.
IBS. Local Self-Goverument 504-506
186-187. Nature of Municipal Corporations 506-507
188. Power to Create Municipal Corporations 507-510
189. Legislative Control of Municipal Corporations 510-512
190. Debts and Revenue. 512-513
191-192. Officers of Municipalities 513-514
193. Powers of Municipal Corporations 514-516
194-19& By-Laws of Municipal Corporations 517-521
xiv
TABLB OF CONTENTS.
CHAPTER XVHL
CIVIL RIGHTS AND THEIR PROTECTION BY THE CONSTITUTIONS.
Section Page
197-19a Rights in General 522-625
199. Of Liberty 525-527
200-202. Religious Liberty 527-585
203-205. Personal Liberty 585-540
206. Abolition of Slavery 540-542
207. Right to Bear Arms 543
208. The Pursuit of HappJnePs 544
209. Equal Protection of the Laws 544r-558
210-212. Right to Choose Occupation 558-566
213. Freedom of Contract 566-567
214. Marriage and Divorce 567-568
215. Sumptuary Laws 568
216. Education 56&-570
217.. Due Process of Law 570-579
218-221. In Revenue and Tax Proceedings 580--585
222. In Eminent Domain Proceedings 585-587
223. In Judicial Action 587-595
224. In Administrative Proceedings 595-596
225. Protection of Vested Rights 596-606
226-227. Searches and Seizures 606-616
228. Quartering of Soldiers 616
229. Right to Obtain Justice Freely 617-618
230-233. Trial by Jury 618-680
POLITICAL AND PUBLIC RIGHTS.
234-239. .Citizenship 631-^638
240. Double Citizenship in the United States 638-640
241. Privileges of Citizens of the United States 640-643
242-244. The Right of Suffrage 644-660
245. EYeedom of Speech and of the Press 650-654
246. Criticisms of Government 654-658
247. Censorship of the Press 658-659
248-252. Privileged Communications 659-668
25a The Right of Assembly and Petition 668-672
254. Disfranchisement 672-675
CONSTITUTIONAL GUARANTIES IN CRIMINAL CASES.
255-256. Provisions in the Constitutions 670-679
257. Presentment or Indictment 670-682
TABLE or CONTENTS. XT
D^ctioa Page
Trial by Jury 682-686
200. Privilege against Self-Oiminating Evidence 686-680
261. Confronting with Witnesses 690-682
GbmpeUing Attendance of Witnesses 692-688
Right to be Present at Trial 693-694
Assistance of Counsel 694-686
265. Right to be Heard 696-697
266. Speedy and Public Trial 697-698
267-268. Twice in Jeopardy 699-704
270. BaU 704r-706
271. Cruel and Unusual Punishments : 706^706
272. Bills of Attainder 708-709
273- Ex Post Facto Laws 709-715
274. Suspension of Habeas Corpus 715-716
275-277. Definition of Treason 716-718
27a Corruption of Blood and Forfeiture 71&-719
LAWS IMPAIRING THB OBLIOATION OF CONTRACTS.
279. Oonstitational Provisions. 720^721
28a The Law Impairing the Contract 721-722
281. The Obligation 722-723
The Impairment of the Contract 723-725
What Contracts are Protected 725-736
Limitations on Power of Legislature to Contract 736-738
287-201. Charters as Contracts 73S-744
Exemption from Taxation 744-745
Laws Affecting Remedies on Contracts 746-751
GHAFTEB XXIL
RBTROACTIVE LAWS.
Validity Of Retroactire Statutes 762-768
296l Retroactire Effect Avoided by Construction 754
297. Carative Statutes 754-756
Statutes Curing Administrative Action 757-759
Caring Defective JadldaJ Proceedings •••••• 75&-760
Bi..OoH8r.L.(8D Bd.) — b
i
THE CONSTITUTION
OP THB
UNITED STATES OF AMERICA.
Wb the Pboflb of the United States, In Order to form a more perfect Union,
establish Justice, Insure domestic Tranquility, provide for the common de-
fence, promote the general Welfare, and secure the Blessings of Liberty
to onrselyes and our Posterity, do ordain and establish this Conbtitutioh
for the United States of America.
ARTIGLB L
BaonoN 1. All legislative Powers herein granted shall be vested In a
Oongress of the United States, which shall consist of a Senate and House
of Representatives.
BBcnoN 2. The House of Representatives shall be composed of Members
chosen every second Year by the People of the several States, and the Elect-
ors in each State shall have the Qualifications requisite tor Electors of the
most numerous Branch of the State Legislature.
No Person shall be a Representative who shall not have attained to the Age
of twenty five Years, and been seven Years a Citizen of the United States,
and who shall not, when elected, be an Inhabitant of that State in which
he shall be chosen.
Representatives and direct Taxes shall be apportioned among the several
States which may be Included within this Union, according to their respective
Numbers, which shall be determined by adding to the whole Number of free
Persons^ including those bound to Service for a Term of Years, and excluding
Indians not taxed, three fifths of all other Persons. The actual Enumeration
shall be made within three Years after the first Meeting of the Congress of
the United States, and within every subsequent Term of ten Years, in such
Manner as th^ shall by Law direct The Number of Representatives shall
not exceed one for every thirty Thousand, but each State shaU have at
Least one Representative; and until such enumeration shall be made, the
State of New Hampshire shall be entitled to chuse three, Massachusetts eight,
Bhode-Island and Providence Plantations one, Connecticut five. New York
six. New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Ylr-
glnia ten, N<vth Carcdina five. South Carolina five, and Georgia three.
When vacancies happen in the Representation from any State, the Execu-
ttf Antliority thereof shall issue Writs of Election to fill such Vacancies.
(rrl!)
XVlii CONSTITUTION OF THE UNITED 8TATJSB.
The House of Representatives shall chuse their Speaker and other Officers;
and shall have the sole Power of Impeachment.
SscTioN 3. The Senate of the United States shall be composed of two Sen-
ators from each State, chosen by the Legislature thereof, for six Years; and
each Senator shall have one Vote
Immediatdy after they shall be assembled in Consequence of the first
Election, they shall be divided as equally as may be into three Classes. The
Seats of the Senators of the first Class shall be vacated at the Expiration
of the second Tear, of the second Class at the Expiration of the fourth
Year, and of the third Class at the Expiration of the sixth Year, so that
one third may be chosen every second Year; and if Vacancies happen by
Resignation, or otherwise, diu*ing the Recess of the Legislature of any State,
the Execntive thereof may make temporary Appointments, until the next
Meeting of the Legislature, which shall then fill such Vacancies.
No Person shall be a Senator who shall not have attained to the Age of
thhrty Years, and been nine Years a Citizen of the United States, and who
shall not, when elected, be an Inhabitant of that State for which he shall
be chosen.
The Vice President of the United States shall be President of the Senate,
but shall have no Vote, unless they be equally divided.
The Senate shall chuse their other Officers, and also a President pro tem-
pore, in the Absence of the Vice President, or when he shall exercise the
Office of President of the United States.
The Senate shall have the sole Power to try aU Impeachments. When
sitting for that Purpose, th^ shall be on Oath or Affirmation. When the
President of the United States is tried, the Chief Justice shall preside: And
no Person shall be convicted without the Concurrence of two thirds of the
Members present
Judgment in Oases of Impeachment shall not extend further than to re-
moval from Office, and disqualification to hold and enjoy any Office of honor.
Trust or Profit under the United States: but the Party convicted shall never-
theless be liable and subject to Indictment, Trial, Judgment and Punishment,
according to Law.
SsonoN 4. The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law make or alter such
Regulations, except as to the Places of chusing Senators.
The Congress shall assemble at least once in every Year, and such Meeting
shall be on the first Monday in December, unless they shall by Law appoint
a different Day.
Keotion 6. Bach House shall be the Judge of the Elections, Returns and
Qualifications of its own Members, and a Majority of each shall constitute
a Quorum to do Business; but a smaller Number may adjourn from day to •"
day, and 'may be authorized to compel the Attendance of absent Members,
in such Manner, and under such Penalties as each House may provide.
Each House may determine the Rules of its Proceedings, punish its Mem- |
bers for disorderly Behaviour, and, with the Concurrence of two thirds, |
expel a Member.
Each House shall keep a Journal of its Proceedings, and from time to
time publish the same, excepting such Parts as may in their Judgment re-
quire Secrecy; and the Yeas and Nays of the Members of either House on
any question shall, at the desire ot one fifth of those Present, be entered '
on the Journal. i
CONSTITUTION OP THE UNITED 8TATBS. xiz
Neither House, during the (Session of Gongr As, shall, without the Ck>nsent
of the other, adjourn for more than three days, nor to any other Place than
that In which the two Houses shall be sitting.
Bection 6. The Senators and Bepresentatives shall receive a Compensation
for their Services, to be ascertained by Law, and paid out of the Treasury
of the United States. They shall in all Gases, except Treason, Felony and
Breach of the Peace, be privileged from Arrest during their Attendance at
the Session of their respective Houses, and in going to and returning from
the same; and for any Speech or Debate in either House, they shall not
be questioned In any other Place.
No Senator or Representative shall, during the Time for which he was elect-
ed, be appointed to any civil Office under the Authority of the United States,
which shall have heen created, or the Emoluments whereof shall have been
encreased, during such time; and no Person holding any Office under the
United States, shall be a Member of either House during his Continuance
In Office.
Section 7. All Bills for raising Revenue shall originate in the House of
Representatives; but the Senate may propose or concur with Amendments
as on other Bills.
Kvery Bill which shall have passed the House of Representatives and the
Senate, shall, before it becomes a Law, be presented to the President of the
United States; If he approve he shall sign it, but if not he shall return it, with
bis Objections to that House in which it shall have originated, who shall enter
the Objections at large on their Journal, and proceed to reconsider it If
after such Reconsideration two thirds of that House shall agree to pass the
Bill, It shall be soit, together with the Objections, to the other House, by
which it shall likewise be reconsidered, and if approved by two thirds of
that House, it shall become a Law. But in all such Cases the Votes of
both Houses shall be determined by yeas and Nays, and the Names of the
Persons voting for and against the Bill shall be entered on the Journal of
each House respectivdy. If any Bill shall not be returned by the President
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 Congress by their Adjournment prevent its Return, in which Case it shall
not be a Law.
Bv»7 Order, Resolution, or Vote to which the Concurrence of the Senate
and House of Representatives may be necessary (except on, a question of Ad-
journment) shall be presented to the President of the United States; and be-
fore the Same shall take Effect, shall be approved by him, or being disap-
proved by him, shall be repassed by two thirds of the Senate and House of
Representatives! according to the Rules and Limitations prescribed in the
Case of a BilL
BconoH 8. The Congress shall have Power 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;
To borrow Money on the credit of the United States;
To regulate Ck)mmerce with foreign Nations, and among the several States,
and with the Indian Tribes ;
To establish an uniform Rule of Naturalization, and uniform Laws on the
sabject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof* and of foreign Coin, and fix the
Standard of Weights and Measures;
XZ CONSTITUTION OF THE UNITED STATES.
To proylde for tbe Punishment of conntarfeiting the Securities and coirent
Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for limited
Times to Authors and Inv^itors the exclusive Right to their respecUye Writ-
ings and Discoveries;
To constitute Tribunals inferior to the supreme CkMirt;
To define and punish Piracies and Felonies committed on the high Seas,
and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules
concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use
shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Qovemment and Regulation of the land and naval
Forces;
To provide for calling forth the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for
governing such Part of them as may be employed in the Service of the United
States, reserving to the States respectively, the Appointment of the Officers,
and the Authority of training the Militia according to the discipline pre-
scribed by Congress;
To exercise exclusive Legislation In all Cases whatsoever, over sucih Dis-
trict (not exceeding ten Miles square) as may, by Cession of particular States,
and the Acceptance of Congress, become the Seat of the Government of the
United States, and to exercise like Authority over all Places purchased by
the Consent of the Legislature of the State In which the same shall be, for
the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful
Buildings;— And
To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this Consti-
tution in the Government of the United States, or in any Department or Of-
ficer thereof.
Section 9. The Migration or Importation of such Persons as any of the
States now existing shall think proper to admit, shall not be prohibited by
the Congress prior to the Year one thousand eight hundred and eight, but a
Tax or duty may be imposed on such Importation, not exceeding ten dollars
for each Person.
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety may require It
No Bill of Attainder or ex post facto Law shall be passed.
No Capitation, or other direct. Tax shall be laid, unless in Proportion to
the Census or Enumeration herein before directed to be taken.
No Tax or Duty shall be laid on Articles exported from any State.
No Preference shall be given by any Regulation of Commerce or Revenue
to the Ports of one State over those of another: nor shall Vessels bound to,
or from, one State, be obliged to enter, clear, or pay Duties in another.
No Money shall be drawn from the Treasury, but in Consequence of Ap-
propriations made by Law; and a regular Statement and Account of the Re-
ceipts and Expenditures of all public Money shall be published from time to
thneti
"n
CONSTITUTION OF THE UNITED STATES. XX]
No Title of Nobility shall be granted by the United States: And no Person
holding any Office of Profit or Trust under them shall, without the Consent
of the Ck>ngres8, accept of any present, Emolument, Office, or Title, of any
kind whatever, from any King, Prince, or foreign State.
Skction 10. No State shall enter into, any Treaty, Alliance, or Confedera-
tion; grant Letters of Marque and Reprisal; coin Money; emit Bills of
Credit; make any Thing but gold and silver Coin a Tender in Payment of
Debts; pass any Bill of Attainder, ex post facto Law, of Law impairing the
Obligation of Contracts^ or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or
Duties on Imports or Bxports, except what may be absolutely necessary for ex-
ecuting its inspection Laws: and the net Produce of all Duties and Imposts,
laid by any State on Imports <Hr Exports, shall be for the Use of the Treasury
of the United States; and all such Laws shall be subject to the Revision and
Oontronl of the 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 f(Hreign Power, or engage in War,
unless actually invaded, or in such imminent Danger as will not admit of
delay.
ARTICLE IL
Sbction 1. The executive Power shall be vested in a President of the
United States of America. He shall hold his Office during the Term of four
Years, and» together with the Vice President, chosen for the same Term, be
elected, as follows
Each State shall appoint, in such Manner as the Legislature thereof may
direct, a Number of Electors, equal to the whole Number of Senators and
R^resentatives to which the State may be entitled in the Congress: but no
Senator or Representative, or Person holding ah Office of Trust or Profit
under the United States, shall be appointed an ElectcM:.
The electors shall meet in their respective States, and vote by ballot for
two Persons, of whom one at least shall not be an Inhabitant of the same
State with themselves. And they shall make a List of all the Persons voted
for, and of the Number of Votes for each; which List they shall sign and
certify, and transmit sealed to the Seat of the Government of the United States,
directed to the President of the Senate. The President of the Senate shall^
in the Presence of the Senate and House of Representatives, open all the Cer-
tificates, and the Votes shall then be counted. The Person having the great-
est Number of Votes shall be the President, if such Number be a Majority
of the whole Number of Electors appointed; and if there be more than one
who have such Majority, and have an equal Number of Votes, then the House
of Representatives shall immediately chuse by Ballot one of them for Presi-
dent; and if no Person have a Majority, then from the five highest on the
List the said House shall in like Manner chuse the President. But in chuslng
the President, the Votes shall be taken by States, the Representation from
each State having one Vote; A quorum for this Purpose shaU consist of a
Member or Members from two>thirds of the States, and a Majority of all the
States shall be necessary to a Choica In every Case, after the Choice of the
pRsident, the Person having the greatest Number of Votes of the Electors
ghall be the Vice President But if there should remain two or more who
XXil G0N8TITUTI0N OF THE UNITED STATES.
bare equal Votes, the Senate shall chase from them by Ballot the Vice Presi-
dent.
The Congress may determine the Time of chasing the Electors, and the
Day on which they shall give their Votes; which Day shall be the same
throughoat the United States.
No Person except a nataral bofn Citizen, or a Citizen of the United States,
at the time of the Adoption of this ConstitaticMi, shall be eligible to the Office
of President; neither shall any Person be eligible to that Office who shall
not iiave attained to thle Age of thirty five Years, and been fourteen Years
a Resident within the United States.
In Case of the Removal of the President from Office, or of his Death, Resig-
nation, or Inability to discharge the Powers and Dnties of the said Office, the
same shall devolve on the Vice President, and the Congress may by Law
provide for the Case of Removal, Death, Resignation, or Inability, both of
the President and Vice President, declaring what Officer shall then act as
President, and sach Officer shall act accordingly, until the Disability be re-
moved, or a President shall be elected.
The President shall, at stated Times, receive for his Services, a Compen-
sation, which shall neither be encreased nor diminished daring the Period for
which he shall have been elected, and he shall not receive within that Period
any other Bmolument from the United States, or any of them.
Before he enter on the Execution of his Office, he shall take the following
Oath or Affirmation:—**! do solemnly swear (or affirm) that I will faithfully
execute the Office of President of the United States, and will to the best of
my Ability, preserve, pirotect and defend the Constitution of the United
States."
Section 2. The President shall be Commander in Chief of the Army and
Navy of the United States, and of the Militia of the several States, wh^i
called into the actual Service of the United States; he may require the
Opinion, in writing, of the principal Office in each of the executive De-
partments, upon any Subject relating to the Duties of their respective Of-
fices, and he shall have Power to grant Reprieves and Pardons for Offences
against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate,
to make Treaties, provided two-thirds of the Senators present concur; and he
shall nominate, and by and with the Advice and Consent of thp Senate, shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the su-
preme Court, and all other Officers of the United States, whose Appoint-
ments are not herein otherwise provided for, and which shall be estab-
lished by Law: but the Congress may by Law vest the Appointment of
such inferior Officers, as they think proper, in the President alone, in. the
Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen
during the Recess of the Senate, by granting Commissions which shall ex-
pire at the End of their next Session.
isectiox 3. He shall from time to time give to the Congress Information of
the State of th^ Union, and recommend to their Consideration such Measures
as he shall judge necessary and expedient; he may, on extraordinary Occa-
sions, convene both Houses, or either of them, and In Case of Disagreement
between them, with Respect to the Time of Adjournment, he may adjourn
them to such Time as he shall think proper; he shall receive Ambassadors
and other public Ministers; he shall take Care that the Laws be faithfully
executed, and shall Commission all the Officers of the United States.
COMTITUTION OF THE UNITED STATES. XXlll
BccTiOK 4 The President, Tlce President and all dvil Officers of the United
Slates, riiall be removed from Office on Impeachment for, and Conylction of»
lYeason. Bribery, or other high Crimes and Misdemeanors
AUTICLB III.
BmmoM L The Judicial Power of the United States shall be vested in one
supreme Cknirt, and in snch inferior Courts as the Congress may from time
to time ordain and establish. The Judges, both of the supreme and inferior .
CoortB, shall hold their Offices during good Behaviour, and shall, at stated
Times, receive for their Services, a Compensation, which shall not be dimin-
iahed during their Continuance in Office.
BBcnov 2. The Judicial Power shall extend to all Cases, in Law and E2q-
nlty, arising under this 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 maritime Jurisdiction;— to Controversies to which the United
States shall be a party;— to Controversies between two or more States;—
between a State and Citizens of another State;-4>etween Citizens of differ-
ent States,— between Citizens of the same State claiming Lands under Grants
of different States, and between a State, or the Citizens thereof, and foreign
States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls,
and those in wliich a State shall be Party, the supreme Court shall have
original Jurisdiction. In all the other Cases before mentioned, the su-
preme Court shall have appellate Jurisdiction, both as to Law and Fact,
with such Exceptions, and under such Regulations as the Congress shall
maka
The Trial of all Crimes, except in Gases of Impeachment, shall be by Jury;
and Budi Trial shall be held In the State where the said Crimes shall have
been committed; but when not committed within any State, the Trial shall
be at such Place or Places as the Congress may by Law have dhrected.
Sbctiok 8. Treason against the United States, shall consist only in levying
War against them, or in adhering to their Enemies, giving them Aid and
Comfort No Person shall be convicted of Treason unless on the Testimony
of two Witnesses to the same overt Act, or on Confession in open Court
The Congress shall have Power to declare the Punishment of Treasim, but
no Attainder of Treason shall work Corruption of Blood, or Forfeiture ex-
cept during the life of the Person attainted.
ARTICLE IV.
Secnoir 1. Full Faith and Credit shall be given in each State to the public
Acts. Records, and judicial Proceedings of every other State. Ai^l the Con-
gress may by general Laws prescribe the Manner in which such Acts, Rec-
ords and Proceedings shall be proved, and the Effect thereof.
^ SicnoN 2. The Citizens of each State shall be entitied to all Privileges
^^^nd Immunities of Citizens in the several States.
A penon charged in any State with Treason, Felony, or other Crime, who
•liaJJ flee from Justice, and be found in another State, shall on Demand of
ZXIT OONBTITUTIOll OF THE UNITED STATES.
tho execatlve Authority of tbe State from which he fled, be deliyered 19, to
be removed to the State having Jurisdiction of the Grime.
No Person held to Service or Labour In one State, under the Laws thereof,
escaping into another, shall, in Ck)n8equence of any Law or Regulation
therein, be discharged from such Service or Labour, but shail be delivered
up on Claim of the Party to whom such Service or Labour may be due.
Section S. New States may be admitted by the Congreaa into this Union;
but no new State shall be formed or erected within the Jurisdiction of any
othor State; nor any State be formed by the Junction of two or more States,,
or Parts of States, without the Consent of the Legislatures of the States con-
cerned as well as of the Congress.
The Congress shall have Power to dispose of and make all needful Rules
and Regulations respecting the Territory or other Property belonging to the
United States; and nothing in this Constitution shall be so construed as to
Prejudice any Claims of the United States, or of any particular State.
Section 4. The United States shall guarantee to every State in this Union
a Republican Form of Grovemment, and shall protect each of them against In-
vasion; and on Application of the Legislature, or of the ESxecutive (when the
Legislature cannot be convened) against domestic Violence.
ARTICLE V.
The Congress, whenever two thirds of both Houses shall deem it necessary,
shall propose Amendments to this Constitution, or, on the Application of the
Legislatures of two thirds of the several States, shall call a Convention f(Mr
proposing Amendments, which, in either Case, shall be valid to all Intents
and Purposes, as Part of this Constitution, when ratified by the Legislatures
of three fourths of the several States, or by Conventions in three fourths
thereof, as the one or the other Mode of Ratification may be pr(H>osed by the
Congress; Provided that no Amendment which may be made prior to the
Year One thousand eight hundred and eight shall in any Manner affect the
first and fourth Clauses in the Ninth Section of the first Article; and that
Qo State, without its Consent, shall be deprived of Its equal Suffrage in
the Senate;
ARTICLE VI.
All Debts contracted and Engagements entered into, before the Adoption
of this Constitution, shall be as valid against the United States under this
Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made
in Pursuance thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby, any Tiling In the Con-
stitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of
the several State Legislatures, and all executive and judicial Ofilcers, both of
the United States and of the several States, shall be bound by Oath or Af-
firmation, to support this Constitution; but no religious Test shall ever be
«equired as a Qualification to any Oflice or public Trust under the United
3tate&
00M8T1TUTI0N OF THB UNITED STATBi. XXY
ARTfCTiW VIL
The Batlficatloii of the Ck>nTentions of nine States, ehall be suffldent for
the EstahUshment of this Constitution between the States so ratifying the
Same.
Dora in Convention by the Unanimous Consent of the States present
the Seventeenth Day of September in the Year of onr Lord one
thousand seven hundred and Eighty seven and of the Independence
of the United States of America the Twelfth. In Witness whereof
We have hereunto subscribed our Names.
[Signed by GEORGB WASHINGTON, as President and Deputy from Vir-
gtnia» and by delegates from all the original states except Bhode Island.]
ABTIOLES Df ADDITION TO AND AMENDMENT
OF THB OON8T1T U TION OF THB UNITED STATES
OF AMBBIOA, PROPOSED B7 CONQBESS AND RATI-
FIBD BY THB UBQISLATUBES OF THB SEVEIlAli
STATES, PUBSTTANT TO THB FIFTH ABTICLE OF
THB OONSTIT U TION.
ARTICLB L
Congress shall make no law reei>ecting an establishment of religion, or pro-
hibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition
the Goreniment for a redress of grievances.
ARTICLE IL
A weO regulated lillltia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.
ARTICLB IIL
No Soldier shall, in time of peace be quartered in any house without the
consent of the Owner, nor in time of war, but in a manner to be prescribed
t^ law.
ARTICLES IV.
The right of the people to be secure in their persons, houses, papers, and
eifects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall Issue, but upon probable cause, supported by Oath or
afflrmation, and particularly describing the place to be searched, and the
penona or things to be seized.
OOMSTITUnOM OF THB UNITED 8TATEB.
ARTICLE V.
No person shall be held to answer for a capital or otherwise Infamous
crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or nayal forces, or In the Militia, when in actual
service in time of War or public danger, nor shall any person be subject for
the same offence to be twice put in jeopardy of life or limb; nor sliall be
compelled in any Criminal Case to be a witness against himself, nor be de-
prived of life, liberty, or property, without due process of law; nor shall
private property be taJsen for public use, without Just compensation.
ARTICLB VL
In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the ac-
cusation; to be confronted with the witnesses against him; to have com-
pulsory process for obtaining Witnesses in his favor, and to have the Assist-
ance of Counsel for his def ence^
ARTICLB VIL
In suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved, and no fact
tried by a jury shall be otherwise re-examined in any Court of the United
States, than according to the rules of the common law.
ARTICLB VIIL
Excessive ball shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.
AltTICLE IX.
The enumeration in the Constitution, of certain rights, shall not be con-
strued to deny or disparage others retained by the people.
}-■ ' • ' i
ARTICLB X.
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.
ZXViii 00N8TITUTI0N OF THE UNITED STATES.
AUTICLB XIV.
Sectiok 1. All persons bom or naturalized in the United States, and sub-
ject to the lurisdiction thereof, are citizens of the United States and of the
I State wherein they reside. No State shall make or enforce any law which
ehall abridge the privileges or immunities of citizens of the United States;
^ nor shall any State deprive any person of life, liberty, or property without
hue process of law; nor deny to any person within its lurisdiction the equal
ftrotection of the laws.
Section 2. Representatives shall be apportioned among the several States
according to their respective numbers, counting the whole number of persons
in each State, excluding Indians not taxed. But when the right to vote at
any election for the choice of electors for President and 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 in any way abridged, except for par-
ticipation in rebellion, or other crime, the basis of representation therein
shall be reduced in the proportion which the number of such male citizens
shall bear to the whole number of male citizens twenty-one years of age in
such State.
Section 3. No person shall be a Senator or Representative in (Congress, or
elector of President or Vice President, or hold any office, civil or military,
under the United States, or under any State, who, having previously taken
on oath, as a member of Congress, or as an officer of the United States, or
as a member of any State legislature, or as an executive or Judicial officer
of any State, to support the Constitution of the United States, shall have
engaged in insurrection or rebellion against the same^ or given aid or com-
fort to the enemies thereof. But Congress may by a vote of two-thirds of
each House, remove such disability.
Seotion 4. The validity of the public debt of the United States, authorized
by law, including debts incurred for payment of pensions and bounties for
services in suppressing insurrection or rebellion, shall not be questioned.
But neither the United States nor any State shall assume or pay any debt
or obligation incurred in aid of insurrection or rebellion against the United
States, or any claim for the loss or emancipation of any slave; but all such
debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legis-
lation, the provisions of this article.
ARTICLE XV.
SsonoK 1. 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 preivious condition of servitude.
SEcmoK 2. The Congress shall have power to enforce this article by appro-
priate legislation.
Tkis volume contains
Key- Number Annotations
That 18 to say, for every t>oint of law wkick u stated or
discussed m the text, and in su^|>ort of wkick cases are
cited, tkere is added to tke author's note a citation to the
Key-Number section or sections m the Decennial Digest
or in the Key-Number Senes, under which all cases di-
rectly involving that ^int have been digested. A similar
citation to the Century Digest is given, excet>t where the
t>rinci|>le involved is one on which no case law existed
t)rior to 1897.
IC
Bl.Const.L.(8d Ed.)
(«x)t
Jl]
:^
HANDBOOK
OF
AMERICAN CONSTITUTIONAL LAW
THIRD EDITION
OHAPTEJEt L
DmnNinoNs and obnbbal principlob.
1. GoDBtittttionBl Law Defined.
2-^ C<MUitittttion Defined.
4. Meaning of "Conatltntionar' and "Unconatitationa].'*
6. Written and Unwritten Conatitntlona.
0. ConatitntionB Not the Source of Righta.
7. BlUa of Righta.
& Right of ReTOlution.
fk Political and Peraonal Reaponaiblllt/.
OONSTiT UTiONAIi X«AW DEFINED.
1« Comatitvtioiial law is thmt departmemt of the aoiemee of law wUeli
treats of the aatnre of eonstitiitioBs, their establishmemtt eon-
siraetloM» amd Interpretation, and of the Talidity of legal
ketmeats as tested b7 the eriterlom of eoaf ormity to the f anda-
italUw.
CONSTITUTION DEFINED.
S. The oomstltatiom of a state is the fnndainental law of the state»
eoataialBS the priaoiples apon irhieh the goTernment is
f o«nded» and rearnlatiiig the division of the sovereign powers*
direetias to lorhat persons eaeh of those powers is to be eon-
ftded and the ■uuuter in whioh it is to be ezereised«i
1 1 Boot. Inst 9. And see Frantz y. Autry, 18 Okl. 661, 91 Pac. 198. See
•Xknutitutional Law,'* Dec. Dip. (Key No.) ^ 26; Cent. Dig. | 50.
B]:^Oon8T.L.(8D.ED.)— 1
2 DBFINITIONS AND GBNBBAL PRINCIPLES. (Ch. 1
3. In Ameriean law, the eonstitntioiL Is the orsanie and fundamental
act adopted b7 the people of the Union or of a partienlar state
as the snpreitfe and paramonnt law and the basis and resnlat-
ins prineiple of the soTernment.
In public law, a constitution is "the organic and fundamental law
of a nation or state, which may be written or unwritten, establishing
the character and conception of its government, laying the basic prin-
ciples to which its internal life is to be conformed, organizing the
government, and regulating, distributing, and limiting the functions of
its diflferent departments, and prescribing the extent and manner of the
exercise of sovereign powers." *
I'^Two fundamental ideas are commonly implied in the term "consti-
>j(.jtution." The one is the regulation of the form of government; the
Ipther is the securing of the liberties of the people. But the former
only is essential to the existence of a constitution, though the latter has
been the principal object of all constitutions established within the
last century. Despotism is not inconsistent with a constitution. If,
in any given country, it is settled law that the form of government
shall be a monarchy, an oligarchy, or a democracy, as the case may be,
and that the succession to the exercise of supreme executive power
shall be determined in a regular manner, that is enough to make up
the constitution of that country. The constitution of Russia estab-
lishes the supreme and arbitrary power of the Czar and determines
the order of succession to the throne. That of the German Empire
prescribes the rule that the King of Prussia shall be Emperor of Ger-
many, and regulates the representation of the component kingdoms
and states in the federal legislature. That of the United States es-
tablishes a republican form of government and apportions the powers
of sovereignty between the Union and the states. But since the
formation of the constitution of the United States, and the spread of
liberal ideas throughout the civilized world, attendant upon the far-
reaching influences of the French Revolution, an era of written consti-
tutions has prevailed. These charters of government adopted or
promulgated not only in North and South America but also in most
of the countries of Europe, as well as Hawaii and Japan, have been
largely concerned with guarantying the rights of the governed.
If a king has granted a constitution, its prime object has been to
admit the people to a share in the government and to secure their
liberties against the exercise of despotic authority. If the people of a
t Black, Law Diet "ConsUtuUon.''
tmr-.
§§ 2-8) CONSTITUTION DEFINED. - 3**
State have adopted a democratic constitution, none the less have they
deemed it important to specify the rights and immunities which they '
considered sacred and fundamental, and to make sure provision against
their invasion by the men in power. Consequently, when we now speak '
of "constitutional government" or a "constitutional monarchy," it is* '
this latter idea — the security of popular rights and liberties — which is
principally dwelt upon.
In American constitutional law, the word "constitution" is used in
a very specific sense. It does not include any theories, traditions, or
general understandings as to the government or any of its details,
which have not been specifically adopted as a part of the written fun-
damental law. It means the particular written instrument which em-
bodies the whole of the organic law of the state or nation, and which
is of supreme authority and force.*
Synonyms.
In a certain sense, constitutions may be said to be laws. That is,
they are rules of. civil conduct prescribed by the supreme power in
a state, and are as much within the definition of "laws," in the widest
signification of that term, as are the acts of a legislature. Thus, the
constitution of the United States is declared to be the "supreme law
of the land," no less than the acts of congress passed in pursuance
of it. So, also, the same instrument forbids the several states to
pass any law impairing the obligation of contracts, and declares that
no state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; and it is
held that these clauses do not relate solely to the acts of a state legis-
lature, but that a state constitution or an amendment thereto is as
much a "law," within their purview, as any statute. But in practice
a distinction is made between those organic or fundamental laws
which are called "constitutions" and such ordinary laws as are de-
nominated "statutes." Both answer to the description of laws, but
constitutions are seldom called "laws," and never called "statutes."
• "A eonstitntlon is, according to the American Idea, the organization of the
government, distributing Its powers among bodies of magistracy, and declar-
ing their rights, and the liberties reserved and retained by the people."
Frencb t. State, 62 Miss. 758. "The Constitution of an American state is the
Baprone, organized, and written wUl of the people acting in convention, and
assigning to the different departments of the government their respective
powers.'* Taylor v. Governor, 1 Ark. 21. See ^'Constitutional Law" Dec. Dig.
{Ketf No.) i 26; Cent, Dig. | SO.
1
4 DEFINITIONS AND OBNBRAL PBINCIPLBS. (Ch. 1
A constitution differs from a statute or act of a legislature in three
important particulars :
(1) It is enacted by the whole people who are to be governed by it,
instead of being enacted by their representatives sitting in a congress
or legislature.
(2) A constitution can be abrogated, repealed, or modified only by
the power which created it, namely, the people; whereas a statute
may be repealed or changed by the legislature.
(3) The provisions of a constitution refer to the fundamental prin-
ciples of government, or the establishment and guaranty of liberties,
instead. of being designed merely to regelate the conduct of individuals
among themselves. But the tendency towards amplification, in mod-
em constitutions, derogates from the precision of .this last distinction.
MEANIlfO OF ''CONBTITUTIONAIi'* AND 'OJNCONBTITITTIONAIn''
4» 'Ooiiatltiitloiial'' meanfl ooaf ormlaB to the eonstitution. A statvto
or ordinoaee irliieli Is inconsistent with the eonstitntion, or
in eonfliet with any of its provisions, is said to be *%neonsti-
tntlonal***
The term "constitutional" means consistent with the constitution;
authorized by the constitution ; not conflicting with any provision of
the constitution or ^f undamental law of the state. It also means de-
pendent upon a constitution, or secured or regulated by a constitution ;
as a "constitutional monarchy," "constitutional rights." Hence, in
American parlance, a constitutional law is one which is consonant to
and agrees with the constitution; one which is not in violation of
any provision of the constitution of the United States or of the par-
ticular state. An unconstitutional law is one which is in violation of the
constitution of the country or of the state. In those states where
the same body which exercises the ordinary lawmaking power is also
invested with the whole sovereignty of the nation, as is the case in
Great Britain, an unconstitutional enactment is not necessarily void.
There are many rules, precedents, and statutes, deemed a part of the
British constitution, which are justly esteemed as valuable safeguards
of liberty. But there is no one of them which parliament might not
lawfully repeal. The Habeas Corpus Act, for example, might at any
day be abrogated by act of parliament. Such a measure would be
regarded as unconstitutional, because it would be in derogation of cer-
tain principles which are universally deemed a part of the constitution
as it n6w stands. But it would not lack the sanction of legality. It
§ B) WBTTTBll AHD UMWBITTBN CON8TITUTIOH8. 5
would occupy precisely the position of an amendment to a written con-
stitution, and would be no less the law of the land than had been the
law which it destroyed. But in a country governed by a written con-
stitution, which is of supreme authority over the lawmaking power,
and to which all ordinary legislation must bend, an unconstitutional
law is void and of no effect, and in fact is no law at all. Yet, so long
as it stands on the statute book unrepealed, it will have the presumptive
force of law, tmless the proper courts have pronounced its invalidity.
Until that time, any person may disregard it at his own peril, but offi-
cers are bound to give it force and effect. After it has been duly ad-
judged unconstitutional, the presumption is that no further attempt
will be made to enforce it. But the protection of the individual rests
on the probability that the courts will abide by their first decision in
regard to the law.
WKITTAIW AKB UNWRITTEN OONBTITimONB.
S. Ooastitiitlimji are eUuMifted mm written. mmA vnwrltten. All the
AmerieMi eonstttutioiis, aatioiuil and state, belens to the elaee
of written eonetitutions.
Among the various constitutional governments of the world, it is
customary to make a distinction between those which possess a "writ-
ten" constitution and those which are governed by an "tmwritten" con-
stitution. The distinction, however, is not very exact. It is difficult to
conceive of a constitution which should be wholly unwritten. Practical-
ly, this term means no more than that a portion of what is considered
to belong to the constitution of the country has never been cast in the
form of a statute or charter, but rests in precedent or tradition. The
so-called unwritten constitution of Great Britain consists, in large
measure, of acts of parliament, royal grants and charters, declarations
of rights, and decisions of the courts. It also comprises certain max-
ims, principles, or theories of government which, though not enact-
ed with the force of law, have always been acquiesced in by the
people and acted upon by the rulers, and thus, possessing historic
continuity, may be said to enter into the fundamental conception of
the nature and system of the government. The differences between
written and unwritten constitutions, as these terms are generally
employed, are chiefly as follows: First. A written constitution sums
up in one instrument the whole of what is considered to belong to
the constitution of the state; whereas, in the case of an unwritten
/.^ DBFINITIONS AND GENERAL PRINCIPLES, (Ch. 1
constitution, its various parts are to be sought in diverse connec-
.tions, and are partly statutory and partly customary. Second. A
written constitution is either granted by the ruler or ordained by the
pieople at one and the same time; while an unwritten constitution is
gradually developed, and is contributed to not only by the executive
and legislative branches of government, but also by the courts, and by
the recognition, by rulers and people, of usages and theories gradually
acquiring the force of law. Third. A written constitution is a crea-
tion or product, while an unwritten constitution is a growth. The one
may be influenced, in its essentials, by history, but is newly made and
set forth. The other is not only defined by history, but, in a measure,
is history. Fourth. A written constitution, in its letter, if not in its
spirit, is incapable of further growth or expansion. It is fixed and
final. An unwritten constitution, on the other hand, will expand and
develop, of itself, to meet new exigencies or changing conditions of
public opinion or political theory. Fifth. A written constitution, at
least in a free country, is a supreme and paramount law, which all
must obey, and to which all statutes, all institutions, and all govern-
mental activities must bend, and which cannot be abrogated except
by the people who created it. An unwritten constitution may be alter-
ed or abolished, at any time or in any of its details, by the lawmaking
power.
Contents of Written Constitutions.
As .to the contents of a written constitution, the lines of definition
are not very clear. It is by no means easy to say, as a matter of ab-
stract theory, what such an instrument must contain in order to be
a complete constitution, or what kinds of provisions are essential to
it, and what foreign or superfluous. So far as regards a constitution
for one of the United States, if it established a representative govern-
ment, republican in form, provided for the three necessary depart-
ments of government, fixed rules for the election and organization
of the legislative department and the executive offices, defined and
guarantied political rights, and secured the liberty of the individual
in those particulars which are generally esteemed fundamental, it
would probably be sufficient. On the other hand, there is practically
no limit to the subjects or provisions which may be incorporated in
the constitution. It might, for example, be made to include a code
of civil or criminal procedure. The question in every case is how
much the framers of the particular constitution are willing to leave
to the legislative discretion, and what matters they desire to put
§ 6) GONSTITUTIONS NOT THB 3OUB0& OF RIGHTS. 7
beyond the reach of the legislature, in respect to their change or aboli-
tion. Whatever is enacted in the form of law by a legislature may
be repealed by the same or a succeeding legislature. Biit what is in-
corporated in a constitution can be repealed only by the people. And
the people, sitting in a constitutional convention, may put into their
constitution any law, whether or not it has relation to the organization
of the state, the. limitation of governmental powers, or the freedom
of the citizen, which they deem so important as to make it desirable
that it should not be easily or hastily repealed. Of late years there is
a very noticeable tendency towards longer and more elaborate consti-
tutions, and towards the incorporation into them of many matters
which properly have no relation to the idea of a fundamental organic
act, but are intended as limitations upon legislative power. This dis-
position probably arises from a growing distrust of the wisdom and
public spirit of the state legislatures, and also from a desire of the
people to make their constitutions the means of bringing about re-
forms which a majority of them consider desirable, and are unwilling
to trust to the slower and less certain action of the legislature.
OONBTITUTIONB NOT THE SOURCE OF RIGHTS.
6. Tl&e constitutioiis of the Ameriomn states are srants of poirer to
those eharsed with the soTernment, but not grants of fireedom
to the people. They define and snaranty private rights, hnt
do not ereate them.
• •^^* ■■** ^- fc tr •^>'-» 11
The state constitutions in this country grant and limit the powers
of the several departments of government, but, generally speaking,
they are not to be considered as the origin of liberty or rights. In a
later chapter, when we come to consider the nature of liberty and of
natural, civil, and political rights, it will be shown that some personal
rights are taken up into the sphere of law and obtain effective recog-
nition only by the constitution, and that certain political rights are
directly created by that instrument. But with more particular refer-
ence to the rights called "natural," it must now be remarked that they
exist before constitutions and independently of them. Constitutions
enumerate such rights and provide against their deprivation or in-
fringement, but do not create them. It is supposed that all power, all
rights, and all authority are vested in the people before they form or
adopt a constitution. By such an instrument, they create a govern-
ment, and define and limit the powers which its agencies are to exer-
8 DSFINITIONS AND GENERAL PBINCIPLES. (Ch. 1
cise, and they also specify the rights which the constitution is to se-
cure and* the government respect But they do not thereby invest the
citizens of the commonwealth with any natural rights which they did
not before possess. This is shown by the provision found in the con-
stitutions of many of the states that the enumeration, in the bill of
rights, of particular rights or privileges shall not be construed to im-
pair or derogate from others retained by the people.
Sources of American Constitutional Law.
The system of government established by the constitution of the
United States has no exact historical precedent. It was, in a sense,
a creation and an experiment. But the framers of the constitution,
though without a model for the whole structure, were glided, in respect
to many details, by the experience and wisdom of other countries. To a
very considerable degree, their action was determined by theories and
ideas inherited from the mother country; and our constitution owes
many of its provisions to that of Great Britain, as the latter then
stood. Thus, the idea of a representative government, instead of a
direct democracy, the principle of majority rule, the necessity of
separating the three departments of government, the bicameral system
in legislation, the doctrine of local self-government, and the balancing
of centrifugal and centripetal forcesr— all these principles, and more,
were incorporated into our constitution as a matter of course and be-
cause they were essential parts of the Anglo-American idea of govern-
ment. Some further ideas were borrowed by the framers of the consti-
tution from the constitutions then existing in several of the states, and
some, it is probable, from ancient history. Many provisions of the con-
stitution, as is well known, were no more than compromises, necessary
to be made in order to secure a sufficient adherence to make its ratifica-
tion by the states probable. Almost without exception,* the great guar-j
« The prohibition against "laws impairing the obligation of contracts" does
not appear to have been derived from any known source. Its origin is cer-
tainly not to be found in the common law or any British statute. It was de-
viled by the framers of the constitution as a means of securing the inviola-
bility of private contracts against legislative interference, and was considered
necessary in view of certain circumstances in the financial and political his-
tory of the times. Black, Const Prohib. §§ 2, S. As to religious freedom and
the liberty of the press, these important rights cannot be said to have attained
in England, at the time of the formation of our constitution, such a degree of
security as they have since won. But the need of making secure provision
for them was undoubtedly suggested to the founders of our government by
the struggles which were even then going on in the mother country ; and they
A bill of rights is in the nature of a classified list of the rights and
privileges of individuals, whether personal, civil, or political, which
the constitution is designed to protect against governmental oppres-
ettablished, at once and for the whole United States, such a fullness of free-
dom. In these particalan, aa the E^nglish people have as yet scarcely worked
oat for tfaemflelves.
• See Sadller v. New York, 40 Misc. Rep. 78, 81 N. Y. Snpp. 808, stating that
the restraints of Magna Charta in favor of Individual rights were upon the
Grown only ; they nerer were and are not upon Parliament See **Nui8anoe^**
Dec Dig. {Key No.) | 6; Cent. Dig. §§ 55-^7.
• The universal principle (and the practice has conformed to it) has been
that the common law is our birthright and inheritance, and that our ances-
tors brought hither with them upon their emigration all of it which was ap-
plicable to their situation. The whole structure of our present jurisprudence
stands upon the original foundations of the common law." 1 Story, Const
1 157. In the Declaration of Rights put forth by the Continental Congress in
1774 was the following clause: "The respective colonies are entitled to the
common law of England, and more especially to the great and inestimable
prirUege of being tried by their peers of the vicinage according to the course
of that law.*' The English common law, in so far as it is applicable in this
eountry, and where it has not been abrogated or changed by constitutional or
statutory enactments, is in force in the several American states. Black, In-
teip. Laws, 231 ; Marburg v. Cole, 49 Md. 402, 33 Am. Rep. 266 ; Hollman v.
Bennett 44 Miss. 822; Van Ness v. Pacard, 2 Pet 137, 7 L. Ed. 874. Bee
'Vowtmum Law,** Dec. Dig. (Key No.) | 11; Cent. Dig. f 9.
I T) BILL0 OF BIOHT8. 9
anties which secure the natural, civil, and political rights of the citizen^
and protect him against tyranny or oppression, were derived from the v
great charters and legislative enactments of Great Britain* which had \
become a fixed part of her constitution, or from the common law, \
which the Americans claimed as their natural heritage and shield.*
Among these rights we may mention that of "due process of law," of
trial by jury, of the benefit of the writ of habeas corpus, of security
against unreasonable searches and seizures, and many of the rights
secured to persons on trial for criminal offenses. The several states,
in framing their constitutions, have been glided and influenced by the
same theories and doctrines, and by the prevalence of the same polit-
ical ideas amoiig the people, and also in later times, and to a very con-
siderable degree, by the constitution of the United States.
BILLS OF BIGHTS.
T* A Mn of vtclits is A formal dedarmtloB, in a eonstitntioB, of tbo
■atnral, oivil, and politieal vishts of tbo people
bo soovrod and proteetod by tbo coTormment.
In
10 DEFINITIONS AND GENERAL PBINCIPLES. (Ch. 1
sion, containing also the formal assurance or guaranty of these
rights. It is a charter of liberties for the individual, and a limita-
tion upon the power of the state.^ Such declarations are found in
all the state constitutions. And the lack of a bill of rights was one
of the objections to the federal constitution most strongly urged when
\it was before the people for their ratification. Very soon after the
ladoption of the constitution, this defect was remedied by the adoption
lof a series of amendments, of which the first eight may be said to con-
ptitute the federal bill of rights. These guaranties, however, as will
more fully appear in another connection, were intended to operate
only as a limitation upon the federal power, and not to impose any
restrictions on the action of the several states. The idea, as well as
the name, of a bill of rights, was undoubtedly suggested by certain
great charters of liberty well known in English constitutional history,
and particularly the "Bill of Rights" passed in the first year of the
reign of William and Mary, A. D. 1689.
BIGHT OF REVOLUTION.
8« Tlie rliflit of reyolvtion is the inlierent rislit of a people to oast
out tlieir mlers, ohange their polity, or effect radloal reforms
in their system, of soTemment or institutions, by force or a
seneral nprisiney when the lesal and constitntional niethods
of making; sneh changes have proved inadequate^ or are so ob-
stmcted as to be nnaTailable«
This right is a fundamental, natural right of the whole people, not
existing in virtue of the constitution, but in spite of it It belongs to
the people as a necessary inference from the freedom and independ-
ence of the nation. But revolution is entirely outside the pale of law.
"Inter arma silent leges." Circumstances alone can justify a resort to
the extreme measure of a revolution. In general, this right may be
said to exist when tyranny or a corrupt and vicious government is in-
trenched in power, so that it cannot be dislodged by legal means ; or
when the system of government haS become intolerable for other caus-
es, and the evils to be expected from a revolutionary rising are not so
great as those which must be endured under the existing order of
things; when the attempt is reasonably certain to succeed; and when
the new order proposed to be introduced will be more satisfactory
7 See Robertson v. Baldwin, 165 U. S. 275, 17 Sup. Ct. 326, 41 L. Ed. 715 ;
Ruffin v. Com., 21 Grat. (Va.) 790; Atchison St Ry. Co. v. Missouri Pac. Ry.
Co., 81 Kan. 660, 3 Pac. 284. See '*Oon8titutional Law,** Dec. Dig. (Key No.)
i 82; Cent. Dig. % H9.
,i 9) POLITICAL AND PERSONAL BBSPONSIBILITT. f 11
to the people in general than that which i3 to be displaced. "Revolu-
tion is either a forcible breach of the established constitution or a vio-
lation of its principles. Thus, as a rule, revolutions are not matters
of right, although they are mighty natural phenomena, which alter
public law. Where the powers which are passionately stirred in the
people are unchained, and produce a revolutionary eruption, the reg-
ular operation of constitutional law is disturbed. In the presence of
revolution, law is impotent. It is, indeed, a great task of practical
politics to bring back revolutionary movements as soon as possible in-
to the regular channels of constitutional reform. There can be no
right of revolution, unless exceptionally; it can only be justified by
that necessity which compels a nation to save its existence or to secure
its growth where the ways of reform are closed. The constitution is
only the external organization of the people, and if, by means of it,
the state itself is in danger of perishing, or if vital interests of the
public weal are threatened, necessity knows no law." ■
POLmCAIi AND PERSONAL BESPONSIBILITT.
O* Generally speakinst tlie responsibility for politioal aetion is politi-
oal only. That is, officers of the soTemment, in either of its
branches, are not liable at the snit ojt JBStolte parties for the
consequences of acts done by them in the eonrse of their pnblie
functions and in niatters inTolvins the exercise of jadgment
or oiscr ction*
In order to the due administration of government, it is necessary
that the officers who are charged with the various duties of making,
interpreting, and administering the laws should enjoy a due measure
of immunity from being called to account for their public acts at the
instance of private parties. Misgovernment is to be remedied at the
ballot box, not by suits at law. If the legislature attempts to violate
or defy the constitution, it will be held in check by the judicial depart-
ment. But for unwise or oppressive laws, not conflicting with the
constitution or private rights, there is no redress save by the election
of a new legislature. Courts cannot set aside a statute regularly pass-
• Bluntschli, Theory of the State, 477. "All power Is inherent In the people,
and all free goyernments are founded on that authority, and instituted for
their peace, safety, and happiness. For the advancement of these ends they
hare at all times an unalterable and indefeasible right to alter, reform, or
abolish the goyemment in such manner as they may think proper. These
principles in this country are well -recognized political truths, independent of
any written constitution or laws.'* Ridley v. Sherbrook, 3 Ck)ld. (Tenn.) 569.
8^ **United States;' Deo. Dig. (Key No.) § 1; Cent. Dig. § 1.
12 DBFINITI0N8 AND GBNBBAL PBINCIPLB8. (Ch. 1
ed, on the ground that it was procured by bribery, fraud, or corrup-
tion. And if individuals suffer detriment by reason of the laws en-
acted, they have no right of action against the members of the legis-
lative body. "It certainly cannot be argued," says the court in Mis-
sissippi, "that the motives of the members of a legislative assembly,
in voting for a particular law, can be inquired into, and its supporters
be made personally liable, upon an allegation that they acted malicious-
ly towards the person aggrieved by the passage of the law." • And so,
also, whenever the officers of a municipal corporation are vested with
legislative powers, they hold and exercise them for the public good,
and are clothed with all the immunities of government, and are exempt
from all liability for their mistaken use, although they may be held
responsible if shown to have acted corruptly.^^
The judiciary are invested with a like privilege. Judges of inferior
courts may be compelled, by appropriate process, to perform the du-
ties laid upon them. But no judge can be held liable, at the suit of a
private person, for any action taken or omitted by him, or decision
rendered, in the exercise of his office of judge and of his judicial dis-
cretion, even though he acted with malice or corruptly, provided he
kept within the bounds of his jurisdiction, which, in the case of su-
perior courts, will be presumed.^* For gross abuses of power or mal-
versation in office, on the part of the judiciary, the remedy is by im-
peachment.
A similar immunity protects the high officers of the executive de-
partment. They may be controlled in the performance of merely min-
isterial duties, involving the ascertained rights of individuals, by the
process of the courts. But actions do not He against them for dam-
ages sustained by private persons in consequence of their political or
public acts.^* "Where the heads of departAients are the political or
• Jones ▼. Loving, 55 Miss. 109, 30 Am. Rep. 508. See **Municipal Corpora-
tions,** Dec, Dig. (Key No.) i 170; Cent. Dig, % SH.
10 Borough of Freeport ▼. Marks, 59 Pa. 253 ; Jones ▼. Loving, 55 Miss.
109, 30 Am. Rep. 508; Amperse v. Winslow, 75 Mich. 234, 42 N. W. 823;
Walker v. Hallock, 32 Ind. 239. See **Municipal Corporations,** Dec. Dig. {Key
No.) S 170; Cent, Dig. {§ S80-S95,
11 Fray v. Blackburn, 8 Best & S. 576; Calder v. Halket, 3 Moore, P. C. 28;
Barnardiston v. Soame, 6 How. St. Tr. 1063 ; Hamond v. Howell, 2 Mod. 218 ;
Houlden v. Smith, 14 Q. B. 841 ; Scott ▼. Stansfleld, L. R. 8 Exch. 220 ; Kemp
r. Neville, 10 O. B. (N. S.) 523 ; Bradley v. Fisher, 13 Wall. 335, 20 L. EdL
646; Shoemaker y. Nesbit, 2 Rawle (Pa.) 201; Allec y. Reece (C. C.) 39 Fed.
341. See '"Judges,*" Dec. Dig. {Key No.) % S6; Cent. Dig. §§ 165, 167, 178, 179.
12 Mississippi y. Johnson, 4 Wall. 475, 18 L. Ed. 437; Marbury y. Madison^
§ 9) FOIJTIGAL AND PBBSOKAL BBSFONSIBIIilTT. 13
confidential agents of the executive, merely to execute the will of the
President^ or rather to act in cases in which the executive possesses a
ccmstitutional or legal discretion, nothing can be more perfectly clear
than that their acts are' only politically examinable. But where a specific
duty is assigned by law, and individual rights depend upon the per-
formance of that duty, it seems equally clear that the individual who
considers himself injured has a right to resort to the laws of his coun-
try for a remedy." *■ To illustrate, the right of removal from office
is an executive power, for the exercise of which, generally, there can
be no responsibility save such as is political. Thus, when the incum-
bent of an office is dismissed, he cannot maintain an action for dam-
ages against the officer or officers who exercised the right to remove
him, unless he can show that malice and a desire to injure him were
the impelling motives of their action.^^ On similar principles, public
agents, military or civil, of foreign governments (even revolutionary
governments) cannot be held responsible, in any court within the Unit-
ed States, for acts done within their own states, in the exercise of
the sovereignty thereof, or pursuant to the directions of their govem-
ments.** In matters of contract the rule is that a public officer who
does not interpose his own credit is not liable on a contract executed
by him on behalf of the state, even in cases where he might have been
liable had he represented a private party; and where it is sought to
charge him with a personal responsibility, the facts and circumstances
must be such as to show clearly that both parties acted upon the as-
sumption that a personal liability was intended.^* In the case of high
1 Granch, 137, 2 L. Ed. 60; Macbeath ▼. HaldimaDd, 1 Term R. 172; Gldley
T. Lord Palmerston, 3 Brod. & B. 275; Grant v. Secretary of State, 2 C. P.
Dlv. 445; O'Reniy De Camara v. Brooke (D. C.) 142 Fed. 858; Roberts v.
United States, 13 App. D. G. 38; State v. Buchanan (Tenn. Ch. App.) 52 S.
W. 480. See **Vnited States^* Dec. Dig. (Key No.) § -^7/ Cent. Dig. { SS; ''Of-
fUxrsr Dec. Dig. (Key No.) §{ lU-118; Cent. Dig. SS 187-196.
IS Marbnry ▼. Madison, 1 Crancb, 137, 166, 2 L. Ed. 60. See ** Mandamus, *"
Dee. Dig. (Key No.) S 71; Cent. Dig. S ISS.
1* Bnrton v. Falton, 49 Pa. 151. See O'Reilly De Camara v. Brooke, 200
U. S. 45, 28 Sup. Ct. 439, 52 L. Ed. 676, as to immunity of military governor
of Cuba under American occupation from liability in damages for abolisbing
a hereditary office with its emoluments. See '^Schools and School Districts,"
Dec Dig. (Key No.) S H2; Cent. Dig. S S05.
»»Underhm r. Hernandez, 13 C. C. A. 51, 65 Fed. 577, 38 L. R. A. 405.
Bee ^Ambassadors and Consuls,*^ Dec. Dig. (Key No.) S S; Cent. Dig. SS 6-11;
^^International Law,** Dec. Dig. (Key No.) S 4; Cent. Dig. S 4.
»• New York & a & S. Co. v. Harbison (C. C.) 16 Fed. 688; Parks v. Ross,
14 DEFINITIONS AND GENERAL i^BINCIPLES. (Ch. 1
executive officers, as in the case of the judges, great misbehavior is
ground for impeachment and removal from office.
" With regard to inferior officers, the rule is that they are not respon-
sible at the suit of private parties for acts done by them in obedience
to lawful commands, or in the bona fide and honest exercise of a dis-
cretion with which the law invests them, but they must not use their
official authority to inflict wanton or malicious injury upon others,
nor neglect the duties which the law requires them to perform for the
benefit of those who have a right to demand their services.^' Where
a ministerial officer, for example, acts in accordance with the direc-
tions of a writ, due and regular in form, and issuing from a court of
competent jurisdiction, and does not exceed its mandates, the law pro-
tects him against personal liability for the consequences of his acts,
although they work injury to private rights.*® But not so if he uses
his official position or the process of the courts to oppress or injure
persons from private motives or for private gain. A postmaster who
receives a letter with directions to send it by registered mail, and does
not register it, whereby the letter is lost, is liable in damages to the
sender.** And so, in general, is any officer whose services the public
have a right to demand, and who unjustifiably neglects or refuses to per-
form the duties laid upon him by law. A federal officer who, in the per-
formance of what he conceives to be his official duties, transcends his
authority and invades private rights, is answerable to the federal gov-
ernment and to individuals injured by his acts; but when those acts
were done in good faith .and without malice, he is not liable to a crim-
inal prosecution in the courts of the state.*®
11 How. 362, 13 L. Ed. 730 ; Hodgson v. Dexter, 1 Cranch, 345, 2 L. Ed. 130.
fifee "Officers," Dec. Dig, {Key No.) § lU; Cent. Dig. { 191.
i» O'Reilly De Gamara v. Brooke (D. C.) 135 Fed. 384; Crawford v. Eld-
man (C. C.) 129 Fed. 992; Bright v. Murphy, 105 La. 795, 30 South. 145;
Salem Mills Co. v. Lord, 42 Or. 82, 70 Pac. 832 ; Blue Jacket Consol. Copper
Co. V. Scherr, 50 W. Va. 533, 40 S. E. 514 ; Llenemann v. Costa, 140 111. App.
167. See "Officers," Dec. Dig. {Key NO.) {{ lU-118; Cent. Dig. {{ 187-196.
18 Sample v. Broadwell, 87 111. 617; Watson v. Watson, 9 Conn. 140, 23
Am. Dec. 324; Wilmarth v. Burt, 7 Mete. (Mass.) 257. See "Sheriffs and
Constables," Dec. Dig. {Key No.) § 98; Cent. Dig. {$ U3-157; **Oftloer9," Dec. .
Dig. (Key No.) { 114; Cent. Dig. § 189. \
1* Fitzgerald y. Burrill, 106 Mass. 446. See "Post Office," Dec. Dig. (Key
No.) i 9; Cent. Dig. S 16.
ao In re Lewis (D. C) 83 Fed. 159; In re Fair (C. 0.) 100 Fed. 149; In re
Walte (D. C.) 81 Fed. 359 ; State v. Walte, 101 Iowa, 377, 70 N. W. 596. See
"UnUed States," Dec. Dig. {Key No.) H 46-52; Cent. Dig. {§ SS-97.
S§ 10-11) TH£ UNITED STATES AND THE STATES. 15
CHAPTER n.
THE UNITED STATES AND THE STATED
lO-U. Nature of the American Union.
12. Soyereignty and Rights of the States.
13. Soyereignty of the People.
14. Form of Goyemment In the United State&
15. The Union Indestructihle.
16. Nature of the Federal Constitution.
17. The Constitution as a Grant of Powers.
18. The Constitution as the Supreme Law.
HATUBE OF THE AMERICAN UNION.
10. Thm Vaited States of Ameriea is a nation, possessing tlie eliarao*
tor and attribntoa of sorereignty and independence.
II* Politloally speaking, the United States is a nnion of separate
eoaunonwoaltlis, called '^states." Geographically it indndest
(a) The states.
Cb) The territories.
(c) The District of Colnmbia.
(d) Territorial possessions beyond the seas, nnder the dominion and
sovereignty of the United States, bnt not yet incorporated as
a part thereof.
Definition of ''Nation/'
A nation is a people, or aggregation of men, existing in the form
of an organized jural society, inhabiting a distinct portion of the earth,
si>eaking the same language, using the same customs, possessing his-
toric continuity, and distinguished from other likq groups by their
racial origin and characteristics, and generally, but not necessarily,
living under the same government and sovereignty. Besides the ele-
ment of autonomy or self-government, that is, the independence of the
community as a whole from the interference of any foreign power in
its affairs or any subjection to such power, it is further necessary to
the constitution of a nation that it should be an organized jural society,
that is, both governing its members by regular laws, and defining and
protecting their rights, and respecting the rights and duties which at-
tach to it as a constituent member of the family of nations.
The word "nation" is to be distinguished from the related terms
people," "state," and "government." The people constitute the na-
ii
16 THB UNITED STATES AND THB STATES. (Ch. 8
tion. But when we speak of the people, we use the term to designate
those who live within the territory of the nation and who belong to it
by such residence and by race and community of customs and charac-
teristics, without implying the idea of government. The word "nation"
adds to this conception the idea that the "people" are organized into
a jural society and occupy a position among the independent powers of
the earth. But the term "nation" is more nearly synon3rmous with "the
people" than is the word "state." The last term denotes a single homo-
geneous political society, or body politic, organized and administered
under one government and one system of law. It is not so much used
to characterize the inhabitants of the country, as to convey the idea of
the government as a unit. A nation may be politically divided into
several states, as was formerly the case in Italy. And conversely, one
state may comprise several nations or parts of nations, as is the case in
the Austro-Hungarian Empire. But such conditions arc anomalous.
Normally, the nation and the state are the same. The word "govern-
ment" is properly used to denote either the act of administering the
political affairs of a state, or the system of polity therein prevailing, or
the aggregate of persons who, for the time being, are intrusted with
the administration of the executive^ legislative, and judicial business of
the state.
The United States a Nation.
From the foregoing it will easily be seen that the United States, con-
sidered as a unit, possesses all the characteristics and attributes, and is
entitled to the designation, of a nation. • It is composed of one people,
united by language, customs, laws, and institutions, as well as by birth
on the soil or adoption into the family of native citizens. It has the
character of an organized jural society, governed, in all things con-
cerning the whole people, by one system of law and one constitution.
It occupies a distinct portion of the earth's surface. It acknowledges
no political superior. It has also an inherent and absolute power of
legislation; for a moment's reflection will show that the present ap-
portionment of legislative power between the United States and the
states rests solely on the will of the people, who constitute the nation.
Definition of "Sovereignty."
The term "sovereignty" denotes the possession of sovereign power or
supreme political authority, including paramount control of the con-
stitution and frame of government and its administration. It is the
self-sufficient source of political power, from which all specific political
powers are derived. It describes the international independence of a
g§ 10-11) NATUBX OF THS AMBBIGAN UNIOK. 17
State, combined with the right and power of regulating its internal af
fairs without foreign dictation.^ "In the intercourse of nations, cer-
tain states have a position of entire independence of others, and can
perform all those acts which it is possible for any state to perform in
this particular sphere. These same states have also entire power of
self-government, that is, of independence of all other states so far as
their own territory and citizens not living abroad are concerned. No
foreign power or law can have control except by convention. This
power of independent action in external and internal relations consti-
tutes complete sovereignty." *
Two Aspects of Sovereignty.
It will be perceived that sovereignty has two sides or aspects, the
external and the internal. On the external side, it means that the state
spoken of is not subject to the control, dictation, or government of any
other power. It necessarily implies the right and power to receive
recognition as an independent power from other powers, and to make
treaties with them on equal terms, make war or peace with them, send
diplomatic agents to them, acquire territory by conquest or occupation,
and otherwise to manifest its freedom and autonomy. As the individ-
ual,'in a free country, is the equal of all his fellow citizens in civil and
political rights, though perhaps not in ability, influence, or power, so
the sovereign state is the equal of all other states in the family of na-
tions, in respect to its rights, though not in its prestige, territory, or
power.* All independent states are bound by the rules of international
law. But this law is established by their concurrent consent, and as it
operates upon all alike, it is no derogation from the sovereignty of
any. On the internal side, sovereignty implies the power of the state
to make and alter its system of government, and to regulate its private
affairs, as well as the rights and relations of its citizens, without any
dictation, interference, or control on the part of any person or body or
state outside the particular political community. Every statute is a
manifestation of sovereignty. But where the country is governed under
a written constitution, intended to endure against all change except by
solemn expression of the will of the people, the ultimate test of sover-
eignty must be found in the right and power to alter the constitution
of government at will. If this power is possessed by the people of the
particular state, or by any determinate persons or body within the
1 Black, Law Diet "Sovereignty.** « 1 Wools. Pol. Science, p. 204.
• The Antelope, 10 Wheat. 66, 122, 6 L. Bd. 26& See "States;* Deo. Dig.
(Key 2^0.) % 1; Cent. Dig. % 1.
Bl.Conbt.L.(3d.E>d.) — 2
18 THE UNITED STATES AND THE STATES. (Ch. 2
State, free from all interference by any exterior power and from the
binding force of the constitution or laws of any exterior power, then
the state is entitled, in this respect, to be called a sovereign state, and
that power or body within the state which possesses this power to
change the constitution is the sovereign therein.
Sovereignty of the United States.
The United States possesses the character of a sovereign nation.
The constitution confides to the general government plenary control
over all foreign relations. The power to make treaties, send ambassa-
dors and consuls, declare war and make peace, to regulate foreign com-
merce, to establish a uniform rule of naturalization, to define and pun-
ish offenses against the law of nations, to maintain an army and a
navy, and generally to act as a nation in the intercourse of nations, is
confided to the national authority alone. Moreover, the United States,
as a political community, possesses absolute and uncontrolled power of
legislation as concerns its internal affairs.* That it could not be inter-
fered with in the exercise of this power by any foreign power or by any
one of the component states, is self-evident. Nor is it any objection to
this proposition that the constitution, as it stands at present, has limit-
ed the sphere of operations of the national government. For the same
power which established the constitution, namely, the people of the
United States, could change it at will. It is no derogation from the
powers of sovereignty that the body in which resides the ultimate sov-
ereign power has chosen to restrict the legislative power which it
grants to its representatives. At present, certain matters are not in-
trusted to the regulation of congress, but are left to the action of the
several states. But there can be no question that all such matters, if
it should seem good to the people, might be withdrawn from the sphere
of state activity, and placed under the paramount control of the Union.
An inherent supreme power of legislation resides in the people who
possess the sovereignty of the United States.
The States.
In American constitutional law the word "state" is generally cm-
ployed to denote one of the component commonwealths of the Ameri-
can Union. These states, as will presently appear, are not sovereign.
« The goTemment of the United States within the scope of its powers op-
erates on every foot of territory within its jurisdiction, and it legislates for
the whole nation and is not embarrassed by state lines. Snead v. Central of
Georgia R. Go. (C. G.) 151 Fed. G0& See '*VfUt€d Btatet,** Deo. Dig. (fey No.}
is i» t2; Cent. Dig. » i, H.
*
§8 10-11) NATURE OF THE AMERICAN UNION. . 19
Neither arc they nations, in iany proper sense of the term. They are
political communities, occupying separate territories, and possessing
powers of self-government in respect to almost all matters of local in-
terest and concern. Each, moreover, has its own constitution and
laws and its own government, and enjoys a limited and qualified in-
dependence.
The Territories.
The position of the territories, in our system of government, is some-
what analogous to that of colonial dependencies, though it finds no
exact parallel in past or contemporary history. The territories are not
states of the Union. They do not possess full powers even of local self-
government. They are subject to the exclusive jurisdiction and legis-
lation of congress, although they are practically intrusted with a con-
•
siderable measure of authority in respect to the government of their
purely local affairs. Their officers are appointed by the President, and
the acts of their legislative assemblies are liable to be overruled or an-
nulled by the federal legislature. It may be said that they are held in
tutelage by the general government ; that their territorial condition is
transitory and that their system of government is temporary and pro-
visional only. For it is always understood that the people of a territory
are destined to create and maintain a state government as soon as, in
the judgment of congress, they shall be prepared therefor, and be ad-
mitted to the Union on an equality with the older states. "The terri-
tories are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is much the
same as that which counties bear to the respective states, and congress
may legislate for them as a state does for its municipal organizations.
The organic law of a territory takes the place of a constitution as the
fundamental law of the local government. It is obligatory on and
binds the territorial authorities ; but congress is supreme, and for the
purposes of this department of its govenunental authority, has all the
powers of the people of the United States, except such as have been ex-
pressly or by implication reserved in the prohibitions of the consti-
tution." »
The District of Columbia. -
The position of the District of Columbia is even more peculiar than
that of the territories. In fact, it constitutes the most smgular anomaly
• nnt Nat. Bank v. Yankton County, 101 U. S. 129, 25 L. BO. 1046. See
"^erritorieer Dec. Dig. (Key No.) K 7, 8, 11, IS, 17; Cent. Dig. U 4, 5, 8, 9, 12.
« •
20 THS UNITED STATES AND THE STATES. (Ch. 2
in our political systems. The District is that portion of territory ceded
to the United States for a site for the national capital. It is subject to
the exclusive jurisdiction of congress. It is neither a state nor a terri-
tory.* Its people have no direct participation in the government, even
in respect to the administration of municipal affairs. Its executive de-
partment consists of a board i7f -th^^f commissioners who ^r^ appointed
by the Eresident of the United States with the advice and consent of
the senate. Its judges are appointed in like manner. Its local4egi«]a-
ture js^nngrpss. Its permanent residents are citizens of the United
States, if they fulfill the conditions of citizenship laid down in the four-
teenth amendment, but they are not citizens of any state.
Insular Possessions,
In regard to the status of the Philippine Islands, Porto Rico, Ha-
waii (before its organization as a territory) and the Panama Canal
2^ne, the following principles appear to have been settled by the de-
cisions hitherto rendered: It is the undoubted right of the United
States, in the character of a sovereign nation, to acquire new territory
cither by conquest, purchase, or cession. Upon the acquisition of such
territory, it ceases to be a "foreign country" within the meaning of the
tariff laws, and it becomes a part of the United States for all purposes
of intem^ional law and foreign relations. But it does not follow that
it becomes a part of tlie United States for domestic or governmental '
, purposes. It is "territory appurtenant to the United States" and sub-
ject to its dominion and sovereignty, but does not become an integral
part of the Union until incorporated into it by act of congress. The
constitution does not follow the flag in the sense that, upon the mere
>cession or annexation of such new territory, all the constitutional
guaranties of civil and political rights become operative in it, nor in
such sense as to subject congress to all the restrictive provisions of the
constitution in legislating for it, nor so as to make its inhabitants citi-
zens of the United States. Thus, until Congress shall order a change,
the laws regulating personal and property rights, the domestic rela-
tions, and the procedure of the courts, remain as they were under the
former government of such territory, and criminal proceedings by
• Hooe v. Jamleson, 166 U. S. 395, 17 Sup. Ct 596, 41 L. Ed. 1049; Metro-
pollUn R. Co. V. District of Columbia, 132 U. S. 1, 10 Sup. Ct 19, 38 L. Ed.
231. Under its present form of government, the District of Columbia is a
municipal corporation. McBride v. Ross, 13 App. D. C. 576 ; Metropolitan R.
Co. v. District of Columbia, 132 U. S. 1, 10 Sup. Ct. 19, 33 L. Ed. 231. See
^'District of Columbia^'* Dec Dig. {Key No.) U ^-^i Cent. Dig, (f 2-^.
S§ 10-11) NATUBS OF THS AMSBIOAN UKION. 21
grand and petit juries are not substituted for the existing forms of
criminal procedure. And on the other hand, congress may enact tax
or tariflF laws applicable to such territory without regard to the con-
stitutional provision that duties and excises "shall be uniform through-
out the United States." It rests in the wisdom and discretion of con-
gress to organize such new possessions under the ordinary form of
territorial governments, and tiius bring them into the Union, or to re-
tain them under such form of government as it shall see fit to provide ;
and in the latter case it may delegate its legislative authority over
them to the executive department or to such persons as the President
may appoint or to such other agencies as it may choose.^
Restricted Meaning of the Term "State"
When the word "state" is to be taken in its more restricted sense,
^s designating one of the component states of the Union, there is often
some difficulty in determining its exact limits. This ambiguity arises
chiefly in connection with the peculiar position of the territories and
the District of Columbia. It may be stated, as a general rule, that
the term "state" may include the territories and the District when
used geographically, but not when used politically. And while these
communities are not technically "states" of the Union, as the term is
V De Lima t. Bidwell, 182 U. S. 1, 21 Sup. Ct 743, 45 L. Ed. 1041 ; Itownea
▼. Bldwell, 182 U. S. 244, 21 Snp. Ct 770, 45 L. Ed. 1068; Hawaii ▼. Man-
klchl, 190 U. S. 197, 23 Sup. Ct 787, 47 L. Bd. 1016 ; Dorr v. United States,
195 U. S. 138, 24 Sup. Ct. 808, 49 L. Bd. 128; Kepner y. United States, 196
U. S. 100, 24 Sup. Ct. 797, 49 Tj, Ed. 114 ; Bosque t. United States, 209 U. a
91, 28 Snp. Ct. 501, 52 L. Ed. 008; RasmusRen y. United States, 197 U. S.
516. 25 Sup. Ct. 514, 49 L. Ed. 862; The Diamond Rings, 183 U. S. 176, 22
Sop. Ct 59. 46 L. Ed. 138 ; Wilson v. Shaw, 204 U. S. 24, 27 Sup. Ct 233. 51
L. Ed. 351 ; Carifio y. Insular Goyemment of the Philippine Islands. 212 U.
S. 449, 29 Sup. Ct 334, 63 L. Ed. 594; In re Chayez, 80 C. C. A. 4.51. 149 Fed.
73; CrossDian y. United States (C. C.) 105 Fed. 608; Goetze y. United States
(C. C) 103 Fed. 72; United States y. Heinszen, 206 U. S. 370, 27 Sup. Ct
742L 51 li. Ed. 1098; Wilson y. Shaw, 26 App. D. a 510; Basso y. United
States, 40 Ct CI. 202. Compare Ex parte Ortiz (C. C.) 100 Fed. 955. See
RldUDond y. People of Porto Rico, 51 Misc. Rep. 202, 99 N. Y. Supp. 743. hold-
ing that Porto Rico, by yirtue of the act of congress proyidlng a ciyil goy-
emment for it possesses sufficient of the qualities of soyereignty to exempt
It from liability to process or the Jurisdiction of the courts of New York. For
act of congress establishing a goyemment for the Philippines, see Act July
1, 1902, 32 Stat 691. For act proylding a dyil goyemment for Porto Rico,
see Act April 12, 1900. 31 Stat 77, c. 191. See "Territories,*' Deo. Dig. {Kev
Vo.) H ^ 7-11, 1^29, 92; Cent. Dig. %% 2, f-8, U-W; ""Customs Duties;' Dec
Dig. (fey Vo.) 1 15.
22 TJpLE UNITED STATES AND THB STATES. (Ch. 2
used in the constitution, yet they may be held to come under that
de3ignation, as used in treaties and acts of congress, if plainly within
their spirit and meaning.*
SOVEBEIGlfTT AND BIGHTS OF THE STATES.
18. The sever al states liaTe not the attribute of soTereignty, ezeept Ia
a limited and qualified sense. Thej are local self-ifOTernii&s
oonuunnitiet, tad&veikllviiir'as respects each other, indcpendeiit
in a limited and qnalifled sense as respects the Union, bnt not
ranhins as nations or soTereign powers for the purposes of in^
temational laur.
State Sovereignty,
The several states composing the American Union never enjoyed
complete sovereignty as regards the external side, and do not now pos-
sess it. This is shown by the fact that they were always subject to
some common superior in respect to their relations with foreign powers.
First it was the king and parliament of England, then the revolutionary
congress, then the confederation, and now the United States. For as
all authority over foreign relations and affairs is confided to the nation-
al government, it follows as a necessary consequence that all such au-
thority is denied to the separate states. None of them can deal direct-
ly with a foreign nation. "The only government of this country which
other nations recognize or treat with is the government of the Union,
and the only American flag known throughout the world is the flag of
the United States." • On the external side, therefore, we may entirely
disrtiiss the notion of any state sovereignty. An apparent exception
may be found in the case of Rhode Island and North Carolina, which re-
mained out of the Union for a short time after the national government
was organized, and thus acquired complete independence, and also in
8 De Geofroy v. Rlggs, 133 U. S. 258, 10 Sup. Ct 295, 33 Tj. Ed. 642 ; Tal-
bot V. Board of Comers of Silver Bow County, 139 U. S. 438. 1 1 Sup. Ct. 594,
35 L. Ed. 599; The Ullock (D. C.) 19 Fed. 207. In the Internal revenue acts
of congress it is provided that the word "state** shall include the territories
and the District of Columbia whenever such construction is necessary to carry
out their provisions. Rev. St. U. S. S 3140 (U. S. Comp. St 1901, p. 2040).
See "District of Columbia," Dec. Dig. (Key No.) § 2; Cent. Dig. S 2; **State8,**
Dec. Dig. {Key No.) §§ i, 4, 5; Cent. Dig. §8 i, 2; "TerritoHes," Dec. Dig. (Key
No.) U i-iS; Cent. Dig. §{ 1-15.
• Fong Yue Ting v. U. S., 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 905 ; 1
Story, Const 8 210. See "States," Dec Dig. {Key No.) %% 1-7; Cent. Dig. K
1-Sj "United States," Dec. Dig. (Key No.) {§ 1-^; Cent. Dig. H i-4.
§ 12) SOYEREIONTT AND RIGHTS OF THE STATES. 23
the case of Texas, which was a sovereign and independent republic at
the time of its admission. But the two former states never sought or
obtained recognition from any foreign government, nor exercised any
act of external sovereignty. And the latter state, on coming into the
Union, surrendered all such powers and rights as were incompatible
with its new rank and position as one of the states. None of these
states, therefore, now possesses any sovereignty except such as may
be enjoyed by all the states alike.
But the question of state sovereignty is not determined alone with ref-
erence to external relations. It also depends in a measure upon the
relation of the states to each other and to the Union, and on their in-
ternal powers of legislation. As respects each other, the several states
of the Union enjoy a qualified sovereignty. It is not an absolute sover-
eignty, even here, because they cannot make treaties with each other
(unless with the consent of congress), and there are numerous particu-
lars in which the relation of the states is regulated by the federal con-
stitution. In all such matters as the effect of judicial proceedings, the
extradition of criminals, and the privileges of citizens, the several states
are not at liberty to deal with each other as independent communities.
Again, as regards the relation of the several states to the Union, it
may be said that each state enjoys a qualified and relative sovereignty.
The practical description of the manner of this apportionment of sover-
eign power which has been agreed on by statesmen and courts is that
each state retains plenary auth9rity over those matters which have not
been confided to the general government by the constitution nor prohib-
ited to the states, and that the Union possesses plenary authority over
those subjects which the constitution intrusts to its regulation.
Finally, in respect to the regulation of their own system of govern-
ment and internal affairs, the states possess no more than a limited or
qualified sovereignty. The ultimate test of sovereignty, in this respect,
as we have already said, is the power to alter the constitution at will.
But this the states cannot do. For there are numerous provisions of the
federal constitution which impose limitations upon the power of the
states, as well in the making or changing of constitutions as in the
enactment of laws. For example, no state, in adopting or amending a
OMistitution, could establish anything but a republican form of govern-
ment, or abridge the privileges of citizens of the United States, or im-
pair the obligation of contracts.
State Rights.
The rights of the several states of the Union, possessed and to be
enjoyed by them as such, are political and governmental in their nature.
24 THB UNITED STATES AND THB STATES. (Ch. 2
They consist in such a degree of autonomy and such powers of free
action and of regulation of their own affairs as may not be inconsistent
with the nature of the relation of the Union to each of the states, nor
with the exercise of those powers which are confided, by the constitu-
tion, to the federal government *• They trmbrace all those powers
which were possessed by the several states at the time of the adoption
of that constitution, with the exception of such as are therein delegated
to the central authority, or thereby prohibited to the states. But it is
evident that, within the limits of this definition, there is room for great
difference of opinion in details. And in fact, ever since the foundation
of the Union, two schools of statesmen have been found, divided in their
views on the nature and boundaries of state rights. According to one
school, the federal constitution is to be subjected to a strict construc-
tion in respect to the powers granted to the national government and a
liberal interpretation for the preservation of the autonomy of the states.
According to the other school, the rule of interpretation is to be revers-
ed. Those holding the one opinion contend that the government of the
Union should be held strictly to the exercise of the powers expressly
granted to it, and that its province and jurisdiction should not be en-
larged by implication. According to the other party,. the true theory of
our government and institutions is in favor of such a construction of
the constitution as will give the federal government the largest measure
of power which is compatible with the continued and useful existence of
the states. By them the nation is regarded as the only sovereign pow-
er, and they contend that it should be accorded all such rights and
powers as may be convenient to enable it to discharge its functions as
such and to maintain its place among the nations of the earth. The ex-
treme advocates of the one view have maintained that it was within the
rightful power of a state to nullify (that is, refuse submission to, and
resist by any adequate force) any act of the general government which, (
in the judgment of that state, was contrary to the constitution or be-
yond the boundaries of the legitimate power of the Union. These
10 Southern Gum Co. v. Laylin, 66 Ohio St. 578, 64 N. B. 564; People v. . i
Tool, 35 CJolo. 225, 86 Pac. 224, 6 L. R. A. (N. S.) 822, 117 Am. St. Rep. 198 ;
State V. Hanson, 16 N. D. 347, 113 N. W. 371 ; Hoxle v. New York, N. H. &
H. R. Co., 82 Conn. 352, 73 Atl. 754. Regarding the fourteenth amendment
to the federal constitution as a limitation upon state power and sovereignty,
see Georgia R. & Banking^ Co. v. Wright, 125 Ga. 589, 54 S. E. 52, and same
case, 207 U. S. 127, 28 Sup. Ct. 47, 52 L. Ed. 134. See '^States,** Dec, Dig.
(Key No,) §§ i, 4, 5; Cent. Dig. |{ i, 2; **VnUed States,'* Dec. Dig. (Key No.)
(§ 1, 6; Cent. Dig. |f 1, 4.
I
i 18) flOTBRBIOKTT AHD BIGHTS OF THB STATES. 25
theorists also contended that a state possessed the power and the right
to withdraw from the Union and set up a new government, either alone
or with other states which might follow its example, whenever, in its
jadgment, its own interests required such a dissolution of the tie which
bound it to the other states. On the other hand, statesmen of the other
party have gone so far as to regard the several states as mere ema-
nations from the Union, and as standing in the same relation to it which
is occupied by the municipal corporations of a state towards the state.
Between these two extremes lies the truth. Although the two theories
of construction, strict and liberal, still subsist, it is now quite generally
agreed that both the several states and the Union are supreme, each
within its own appropriate sphere ; that the rights of the individual state
and of the Union are equally necessary to be preserved and must be
accommodated to each other ; that the authorities of the Union are to
judge of the extent of the powers granted to it ; that the rightful au-
tonomy of each state is beyond the reach of federal interference ; and
that the Union is perpetual and indissoluble.
Prerogatives of State.
The sovereignty of a state of the American Union, though qualified
and limited as above explained, invests it with certain prerogatives and
immunities which are highly important. It was a maxim of the English
law that "nullum tempus occurrit regi" ; and on the same principle the
doctrine of laches does not apply to a state in proceedings for the asser-
tion of its rights.** Nor can a state be estopped by any neglect, mis- *
conduct, or unauthorized act of its officers or agents." Neither is it
bound by the statute of limitations unless expressly so provided by
law.*' Nor can a state or the national government be held responsible
in any way for the tortious or wrongful acts of its public officers.**
11 Georgia t. Tennessee Copper Co., 206 U. S. 230, 27 Sup. Ct. 618, 01 L.
Ed. 1088: United States t. Devereux, 90 Fed. 182, 82 C. 0. A. 564; State
T. City of Columbia (Tenn. Ch. App.) 52 S. W. 511; State v. Sponaugle, 45
W. Va. 415, 32 8. E. 283, 43 L. R. A. 727. See ''States^ Dec. Dig. (Key So,)
I tot; Cent. Dig. | 19S.
IS United States v. La Chappelle (C. C.) 81 Fed. 152; Carolina Nat. Bank
T. State, 60 S. C. 465, 38 a E. 629, 85 Am. St. Rep. 865; State v. Chilton,
49 W. Va. 453. 89 S. B. 612; Long v. McDowell, 107 Ky. 14, 52 S. W. 812,
21 Ky. Law Rep. 605. Bee ^'Estoppel,*' Dec. Dig. {Key No.) § 62; Cent. Dig.
H 151-15S.
IS Waateney v. Schott, 58 Ohio St. 410, 51 N. E. 34; State v. Halter, 149
iDd. 292, 47 N. £. 665 ; Louisville & N. R. Co. y. Smith, 125 Ky. 336, 31 Ky.
i« See note 14 on following page.
26 THB UNITED STATES AND THE STATES. (Ch. 2
Same — Suits by and against State,
The eleventh amendment to the federal constitution prohibits the
maintenance of an action against a state by any private person. This
operates only as a restriction on the judicial power of the United States.
But aside from this, it is settled that a state cannot be sued in one of
its own courts or in a court of another state, whether by one of its own
citizens or by an alien, without its own express consent;^* and if it
grants such consent, it may limit and restrict the right of suit by such
terms and conditions as it may see fit to impose ;^' and the consent of
the state that it may be sued is not a contract, and can be withdrawn or
modified at any time in the discretion of the state, even after suit has
been commenced.*^ Further, when a suit nominally against a state offi-
cer really affects the rights, interests, or property of the state, as dis-
tinguished from the rights of private parties, it is in effect a suit against
the state and cannot be maintained unless the state has consented to be
Law Rep. 1, 101 S. W. 317 ; Com. v. Haly, 106 Ky. 716, 51 S. W. 430, 21 Ky.
Law Rep. 666. See ^'Limitation of Actions,** Dec, Dig, (Key No,) I 11; Cent,
Dig, %% S5S9,
1* Washington Loan & Trust Co. v. United States, 39 Ct. CI. 152; Elmore
Y. Fields, 1S3 Ala. 345, 45 South. 66, 127 Am. St. Rep. 31; Clausaen v. City
of Luverne, 103 Minn. 401, 115 N. W. 643, 15 L. R. A. (X. S.) 698; Moody
V. State's Prison, 128 N. C. 12, 38 S. E. 131. 53 L. R. A. 855 ; Billings v. State,
27 Wash. 288, 67 Pac. 583. See "States:* Dec. Dig. {Key No,) § 112; Cent.
Dig, § 111; ''United States:* Dec, Dig. (Key No.) § 78; Cent. Dig, I 62,
IB Alabama Industrial School y. Addler, 144 Ala. 555, 42 South. 116, 113
Am. St. Rep. 58 ; Davis y. State, 121 Cal. 210, 53 Pac. 555 ; Peeples v. Byrd,
98 Ga. 688, 25 S. B. 677 ; Hollister v. State, 9 Idaho, 8, 71 Pac. 541 ; People
V. Sanitary Dlst. of Chicago. 210 111. 171, 71 N. E. 334; Asbell v. State, 60
Kan. 51, 55 Pac. 338; Wright v. State Board of Liquidation, 49 La. Ann.
1213, 22 South. 361 ; Carter v. State. 49 La. Ann. 1487, 22 South. 400 ; Mc-
Arthur Bros. Co. y. Com., 197 Mass. 137, 83 N. E. 334 ; Hodgdon v. City of
HaTerhill, 193 Mass. 406, 79 N. E. 830; State v. Mortensen, 69 Neb. 376, 95
N. W. 831; Seitz v. Messerschmltt, 188 N. Y. 587, 81 N. E. 1175; Utchfield
Y, Pond. 186 N. Y. 66, 78 N. E. 719 ; Nussbaum v. State, 119 App. Div. 755.
104 N. T. Supp. 527; General Oil Co. y. Grain, 117 Tenn. 82, 96 S. W. 824,
121 Am. St. Rep. 967 ; Blue Jaclcet Consol. Copper Co. v. Scherr, 50 W. Va.
533, 40 S. E. 514 ; City of Terre Haute v. Farmers' Loan & Trust Co., 99 Fed.
838, 40 C. O. A, 117. See "States,** Dec. Dig. (Key No.) I 191; Cent. Dig. H
179-184.
i« Smith V. Reeves, 178 U. S. 436, 20 Sup. Ct 919, 44 L. Ed. 1140; Flagg
Y. Bradford, 181 Mass. 315, 63 N. E. 898. See "States,** Dec Dig. (Key No.)
I 191; Cent. Dig. |§ 179-184.
17 state Y. State Dispensary Commission. 79 S. C. 316, 60 S. B. 928. See
"States:* Dec. Dig. (Key No.) { 191; Cent. Dig. { 18S.
^ IS) 80YERBIQNTT AND. RIGHTS OF THE STATES. 27
sued.^* Neither costs nor interest may be awarded against the state
in a suit to which it is a party in the absence of express statutory au-
thority.** But on the other hand the courts both of the state and of
the United States are open to a state as a plaintiff, both in its sover-
eign capacity and by virtue of its corporate rights."^ And when the
state enters a court as a litigant and invokes its judgment for any pur-
pose, it is as much bound by the judgment, favorable or adverse, as any
private suitor would be,** though no judgment against the state could
be enforced by seizure and sale of its property,** and it is generally
held that the institution of an action by the state as plaintiff does not
justify the interposition of a set-off or counterclaim, or the rendition of
judgment thereon, if an action against the state could not have been
brought on it.**
Business and Contractual Relations of State.
When a state engages in business or makes contracts, it lays aside
its sovereign character pro tanto, and is generally bound by the same
IS Gunter v. Atlantic Coast Line R. Co., 200 U. S. 273, 26 S. Ct 252, 50
L. Ed. 477; German AHlance Ins. Co. v. Van Cleave, 191 111. 410, 61 N. B.
94; Wilson v. Louisiana Purchase Exposition Commission, 133 Iowa, 586, 110
X. W. 1015, 119 Am. St. Rep. 616 ; Illinois Life Ins. Co. v. Prewitt. 123 Ky.
36, 93 S. W. 633, 29 Ky. Law Rep. 447; Seltz y. Messerschmitt, 188 N. Y.
587, 81 N. E. 1175 ; Sanders v. Saxton, 182 N. Y. 477, 75 N. E. 529, 1 L. R.
A. (X. S.) 727, 108 Am. St. Rep. 826 ; Salem Mills Co. v. Lord, 42 Or. 82, 69
Pac, 1033; North British & Mercantile Ins. Co. v. Craig, 106 Tenn. 621, 62
S. W. 155. See ''States,'* Dec. Dig. {Key No.) f 191; Cent. Dig. S 181.
i»Sandberg y. State, 113 Wis. 578, 89 N. W. 504; Com. v. Lyon, 24 Ky.
Law Rep. 1747, 72 S. W. 323; State v. Buckman, 95 Minn. 272, 104 N. W.
289; State v. Williams. 101 Md. 529, 61 Atl. 297, 1 L. R. A. (N. S.) 254, 109
Am. St. Rep. 579; Haley v. Sheridan, 190 N. Y. 331, 83 N. E. 296; State v.
Buchanan (Tenn. Ch. App.) 62 S. W. 287; State y. Bradford Sav. Bank, 71
Vt 234. 44 AU. 349. See ''States,** Dec. Dig. (Key No.) $ 215; Cent. Dig. | 20S.
»o Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 8 Sup. Ct 1370, 32 L. Ed.
239 ; State v. Ohio Oil Co., 150 Ind. 21, 49 X. B. 809, 47 L. R. A. 627 ; People
Y. Tool, 35 Colo. 225, 86 Pac. 224, 6 L. R. A. (X. S.) 822. 117 Am. St Rep.
19a See '^States,*' Dec. Dig. (Key No.) § 190; Cent. Dig. | 178.
21 State V. Kennedy, 60 Xeb. 300, 83 X. W. 87; State v. Cloudt Crex. Civ.
App.) 84 S. W. 415 ; State v. Heirs of Zanco, 18 Tex. Civ. App. 127, 44 S. W.
527. See "States,** Dec. Dig. (Key Xo.) § 21i; Cent. Dig. § 201.
as Carter v. State, 42 La. Ann. 927, 8 South. 836, 21 Am. St Rep. 404. See
^'States,** Dec Dig. {Key No.) § 212; Cent. Dig. § 201.
>« People Y. Roberts, 157 X. Y. 676, 51 X. E. 1093 ; Alabama Girls' Indus-
trial School Y. Reynolds, 143 Ala. 579, 42 South. 114. But compare State v.
Kilbtim, 81 Conn. 9, 69 AtL 1028; Commonwealth v. Barker, 126 Ky. 200. 31
28 THB UNITBD STATES AND THB STATES. (Ch. 2
rules and principles of law which govern private individuals in similar
relations,** though by force of statutes the states, as well as the United
States, generally have preference over other creditors in the distribution
of insolvent estates,* • and another exception is that the laws prohibit-
ing usury are not applicable to the state in respect to mortgage loans
of state money.** Thus, when either the United States or a state
enters into a contract of lease, either in the character of lessor or of
lessee, it is bound by the local law of landlord and tenant, as any pri-
vate person would be.*' A state is also bound by the acts of its au-
thorized officers and agents when they act within the scope of their
authority, though not when they exceed it.**
State Boundaries.
The boundaries between the thirteen original states were supposed to
be established at the time of the formation of the Union, but as a mat-
ter of fact there then existed controversies between eleven states as
to their boundaries, which have since been determined by the supreme
Ky. Law Rep. 648, 103 S. W. 308. See **8tatea," Deo. Dig, {Key No,) | 199;
Cent. Dig. $ 1S9.
«* Harley v. United States, 39 Ct. Ca. 105 ; Mountain Copper Co. v. United
States, 142 Fed. 625, 73 C. C. A. 621 ; Union Trust Co. v. State, 154 Cal. 716,
d9 Pac. 183. Compare In re Western Implement Co. (D. C.) 166 Fed. 576, hold-
ing that a state, In the manufacture of commodities In Its penitentiary and
selling the same to the general public under an express statute authorizing
such sale, is engaged in the performance of a goremmental function and not
merely In a private commercial enterprise. As to constitutional provisions for-
bidding the state to engage in works of Internal improvement, see Village of
Bloomer v. Town of Bloomer, 128 Wis. 297, 107 N. W. 974. See ^^Statea;* Dec.
Dig, {Key No.) Sf 85-1 tl; Cent. Dig. ff 86-110,
2B United States v. Heaton, 128 Fed. 414, 63 C. C. A. 166; State v. WUllams,
101 Md. 529, 61 Atl. 297, 1 L. R. A. (N. S.) 254, 109 Am. St. Rep. 579. See Rev.
St. U. S. f$ 3466-3468 (U. S. Comp. St. 1901, p. 2314). And see United States
Fidelity & Guaranty Co. v. Ralney (Tenn.) 113 S. W. 397. See '^States," Dec,
Dig, (Key No,) S 110; Cent. Dig. § 108; "United States,*' Dec, Dig. (Key No.)
S 75; Cent. Dig, § 59.
«• State V. Fitzpatrick, 5 Idaho, 499, 51 Pac. 112. See "* States;' Dec Dig,
(Key No,) i m.
2T Clifford V. United States, 34 Ct. CI. 223 ; Boston Molasses Co. v. Com.,
193 Mass. 387, 79 N. E. 827 ; Hall v. State, 79 Miss. 38, 29 South. 994. See
''States;' Dec, Dig, (Key No,) § 87.
28 Luse V. Rankin, 57 Neb. 632, 78 N. W. 258; Camp & West v. McLln, 44
Fla. 510, 32 South. 927 ; S(pencer v. State, 110 App. Dlv. 585, 97 N. Y. Supp.
154. Only the legislature, and not the state treasurer, has power to accept a
bequest to the state in trust. State v. Blake, 69 Conn. 64, 36 Atl. 1019. See
"States," Dec. Dig. (Key No.) H 85, 102, 112; Cent. Dig. Si 99, 100, 111.
§ 12) SOyBREIONTT AND RIGHTS OF THE 8TATX& 29
court of the United States, which has original jurisdiction in such cas-
es.'* The boundaries of a new state are described in the act of con-
gress for its admission into the Union. But adjacent states may also
fix and settle their boundaries by compact or agreement, ratified by the
legislatures of both, provided congress assents to such agreement or
approves and ratifies it.'® A state boundary line formed by a navi-
gable river changes with a gradual change of the bank by accretion or
reliction, but is not affected by an avulsion.*^ A state may also lose its
sovereignty and jurisdiction over a portion of its territory by prescrip-
tion and long continued acquiescence in the assertion of a particular
boundary line.**
National and State Flags and Emblems.
Several states have enacted laws prohibiting the use or display of the
flag of the United States or the flag or seal of the state for commer-
cial or advertising purposes, and in some cases making it a misdemean-
or to deface or mutilate the national or state flag or to cast contempt
upon it by words or acts. These laws have been assailed on many dif-
ferent constitutional grounds, but their validity has generally been sus-
tained.** And it is held that the power to prohibit the use of the nation-
>• See Rhode Island y. Massachusetts, 12 Pet 657, 8 L. Ed. 816 ; New Jer-
WBf T. New York, 5 Pet. 284, 8 L. E3d. 127 ; Missouri v. Iowa, 7 How. 660, 12
L. Ed. 861 ; Florida v. Georgia, 17 How. 478, 15 L. Ed. 181 ; Alabama v. Geor-
gia, 23 How. 605, 16 L. Ed. 556 ; Virginia v. West Virginia, 11 Wall. 39, 20 L.
Ed. 67; Missouri y. Kentucky, 11 Wall. 305, 20 L. Ed. 116; Indiana v. Ken-
taacy, 136 U. 8. 479, 10 Sup. Ct. 1051, 34 L. Ed. 329 ; Nebraska y. Iowa, 143
U. 8. 359, 12 Sup. Ct. 896, 36 L. Ed. 186. Bee "States;* Dec, Dig, (Key No.) §
IS; Cent. Dig. | i«; "Courts,*" Dec. Dig. {Key No.) § S79; Cent. Dig. S 987.
>• Virginia y. Tennessee, 148 U. S. 503, 13 Sup. Ct. 728, 37 L. Ed. 537 ; Poole
r. Fleeger, 11 Pet 185, 9 L. Ed. 680; Missouri y. Iowa, 165 U. S. 118, 17 Snp.
Ct 290, 41 L. EM. 655; Central R. of New Jersey y. Jersey City, 70 N. J.
Law, 81, 56 Atl. 239 ; In re New Castle Circle Boundary Case, 6 Pa. Dist R.
184 ; Washington y. Oregon, 211 U. S. 127, 29 Sup. Ct. 47, 53 L. Ed. lia See
''Statesr Dec. Dig. {Key No.) | IS; Cent. Dig. § 12.
»i De Loney y. State (Ark.) 115 S. W. 138; Fowler v. Wood, 73 Kan. 511,
85 Pac. 763, 6 L. R. A. (N. S.) 162, 117 Am. St Rep. 534 ; Coulthard y. Mc-
intosh (Iowa) 122 N. W. 233. See "States," Dec. Dig. {Key No.) S 12; Cent.
Dig. i 8.
» Louisiana y. Mississippi, 202 U. S. 1, 26 Sup. Ct 408, 50 L. Ed. 913 ; Moore
& HcFerrin y. McGulre (C. C.) 142 Fed. 787; Town of Searsburg y. Wood-
ford, 76 Vt 370, 57 Atl. 961. See '^States,** Dec. Dig. (Key No.) { 12.
•• Halter y. Nebraska, 205 U. S. 34, 27 Sup. Ct 419, 51 L. Ed. 696 ; Com.
r. B. I. Sherman Mfg. Co., 189 Mass. 76, 75 N. E. 71 ; Halter y. State, 74 Neb.
30 THE UNITED STATES AND THE STATES. (Ch. 2
al flag for improper purposes does not belong exclusively to congress^
but may be exercised by the several states.**
SOVEBEIGIfTT OF THE PEOPI.E.
13. In Ameriea, sovereienty resides in the people. Bnt tHe people
here meant are the qt«*UAod eleetors, or a niajority of them»
j and they ean exereise their soTerelgn ponrer only in the modes
i^ f pointed ont by their eonstitntions.
V
The word "people" may have various significations according to the
connection in which it is used. When we speak of the rights of the
people, or of the government of the people by law, or of the people as
a non-political aggregate, we mean all the inhabitants of the state or
nation, without distinction as to sex, age, or otherwise. But when
reference is made to the people as the repository of sovereignty, or as
the source of governmental power, or to popular government, we are
in fact speaking of that selected and limited class of citizens to whom
the constitution accords the elective franchise and the right of partici-
pation in the offices of government.** The people, in this narrow sense,
are the "collegiate sovereign" of the state and the nation. But the
sovereign can exercise his sovereign powers only in the mode pointed
out by the organic law which he has himself ordained. This will be
shown more fully in a subsequent chapter, in connection with the ques-
tion o.f the power of the people to revise and amend their constitutions.
757. 105 N. W. 298, 7 L. R. A. (N. S.) 1079, 121 Am. St Rep. 754. Contra.
Ruhstrat v. People, 185 111. 133, 57 N. B. 41, 49 L. R. A. 181, 76 Am. St. Rep.
30. In New York, it is held that so much of the statute as prohibits the de-
facement or mutilation of the flag or the casting of contempt upon it, is valid
as a proper exercise of the state's police power, but that to forbid its use for
advertising purposes is an unconstitutional restraint on the personal liberty
of the citizen. People v. Van De Carr, 178 N. Y. 425, 70 N. B. 965, 66 L. R.
A. 189, 102 Am. St. Rep. 516. See '^States,'' Dec. Dig. (Key No.) H 4. ^S;
•'Constitutional Law," Dec. Dig. (Key No.) S§ 81, 208.
»4 Halter v. State, 74 Neb. 757, 105 N. W. 298, 7 L. R. A. (N. S.) 1079, 121
Am. St Rep. 754. See "States,'* Deo. Dig. (Key No.) S 4.
>B In re Incurring State Debts, 19 R. I. 610, 37 Atl. 14. And see Solon v.
State. 54 Tex. Cr. R. 261, 114 S. W. 849. See ^'Elections," Dec Dig. (Key No.)
H 1-19 J Cent. Dig. IS 1-14.
S 14) FOBM OF GOYBRNMENT IN THB UNITED STATES. 31
FORM OF GOVEBNUEIfT IN THE UNITED STATES.
14. Tke Kovenment of the United States is a federal coTemment.
The United States is a repnblie, and so also is each of the
states, the fora^ of covemnient beinc representative.
Federal Govemmefit.
The American Union is commonly described as a federal govern-
ment. And political writers and jurists usually speak of the federal
constitution, the federal courts and jurisdiction, federal powers, the
federal executive, etc. The use of this term is not made imperative
by anything in the constitution. The nature of the government is not
described therein. Nor can its employment settle anything as to the
nature or powers of the government. But the term expresses the com-
mon understanding as to the kind of government prevailing in our coun-
try. And it is a correct designation, technically, if taken in its true
sense. There is, in political science, a substantial difference between a
confederation and a federal government. The former term denotes a
league or permanent alliance between several states, each of which is
fully sovereign and independent, and each of which retains its full
dignity, organization, and sovereignty, though yielding to the central
authority a controlling power for a few limited purposes, such as ex-
ternal and diplomatic relations. In this case, the component states are
the units, with respect to the confederation, and the central govern-
ment acts upon them, not upon the individual citizen. In a federal
government, on the other hand, the allied states form a union, not in-
deed to such an extent as to destroy their separate organization or de-
prive them of quasi sovereignty with respect to the administration of
their local concerns, but so that the central power is erected into a true
state or nation, possessing sovereignty both external and internal, while
the administration of national affairs is directed, and its effects felt,
not by the separate states deliberating as units, but by the people of all,
in their collective capacity, as citizens of the nation. The distinction
is expressed, by the German writers, by the use of the two words
"Staatcnbund" and "Bundesstaat," the former denoting a league or con-
federation of states, and the latter a federal government, or a state
formed by means of a league or confederaticm. It is to the latter class
that the American Union belongs.'*
•• 1 Wools. PoL Science, pp. 1(56-170.
32 THK UNITKD STATES AMD THE STATBA. (Ch. 8
A Representative Republic.
The United States is a federal republic. So also each of the states
is a republic, and the constitution guaranties to each the continuance
of republican government. The exact meaning of this phrase will be
more fully considered in another place. At present it is sufficient to
say that a republic, as distinguished from a despotism, a monarchy, an
aristocracy, or an oligarchy, is a government wherein the political pow-
er is confided to and exercised by the people. It is a government "of
the people, by the people, and for the people." It implies a practically
unrestricted suffrage, and the frequent interposition of the people, by
means of the suffrage, in the conduct of public affairs. The system of
government in the United States and in the several states is distin-
guished from a pure democracy in this respect, that the will of the
people is made manifest through representatives chosen by them to ad-
minister their affairs and make their laws, and who are intrusted with
defined and limited powers in that regard, whereas the idea of a de-
mocracy, non-representative in character, imphes that the laws are
made by the entire people acting in a mass-meeting or at least by uni-
versal and direct vote.
THE UmON UnOESTBlTCTIBIiBi
15. The United 8tatea is ma. iadiflsolnble vaion of iadestmetible
states. If o state lias the riglit to seeede from it. Tlie Uaioa
eonld be terminated oalyjiy the ■aiesmeat of the people or by
revolntioau
There is, in this Union, no such thing as a right of secession, no
right in any state to leave the Union and set up an independent govern-
ment. The Union is permanent, and cannot be dissolved or disintegrat-
ed by the action of any state or states. This was settled forever by the
political events of the last half century, by the concurrence of the
people, and by the courts, the final interpreters of the constitution. In
the important case of Texas v. White "^ we read as follows: "By the
articles of confederation, the Union was declared to be perpetual. And
when these articles were found to be inadequate to the exigencies of the
country, the constitution was ordained 'to form a more perfect Union/
»T 7 Wall. 700, 19 L. Ed. 227. And see White v. Cannon, 6 Wall. 443, 18 L.
Ed. 023. See ''States*' Dec. Dig, {Key No,) S 17; Cent. Dig. H 11-21; ''Unit-
ed States," Deo. Dig. (Key N6.) | i; Cent. Dig. i 1.
§ 16) NATUBB OF THE FEDERAL OONSTITUTIOK. 33
It is difficult to convey the idea of indissoluble unity more clearly than
by these words. What can be indissoluble if a perpetual union made
more perfect is not?" Thus, when a state has once become a member
of the Union, "there is no place for reconsideration or revocation, ex-
cept through revolution, or through consent of the states." "But the
perpetuity and indissolubility of the Union by no means implies a
loss of distinct and individual existeilte, or of the right of self-govern-
ment, by the states. Without the states in union there could be no such
political body as the United States. Ngt only, therefore, can there be no
loss of separate and independent autonomy to the states, through their
union under the constitution, but it may not unreasonably be said that
the preservation of the states and the maintenance of their governments
are as much within the design and care of the constitution as the preser-
vation of the Union and the maintenance of the national government.
The constitution, in all its provisions, looks to an indestructible Union
composed of indestructible states.' When, therefore, Texas became one
of the United States, she entered into an indissoluble relation. All the
obligations of perpetual union and all the guaranties of republican gov-
ernment in the Union attached at once to the state. The act which
consummated her admission into the Union was something more than
a compact ; it was the incorporation of a new member into the political
body. And it was final. The union between Texas and the other
states was as complete, as perpetual, and as indissoluble as the union be-
tween the original states. Considered, therefore, as transactions under
the constitution, the ordinance of secession, adopted by the convention
and ratified by a majority of the citizens of Texas, and all the acts of
her legislature intended to give effect to that ordinance, were absolute-
ly null."
KATUBB OF THS FEDERAI* CON STiT UTION.
16. Thm eoastitiitlon of the United States la not,, a eeMjwptj lem^mj,
ov treaty betweem th» several states of the Unioiit hat aa or-
SaalOy faadaaieatal law, ordained and adopted by the people
of the United States, estahlishinc a national federal sovemi-
Not a Compact or League.
The system of government existing under the articles of confedera-
tion was not a federal government, but a confederacy, in the sense
of these terms as already explained. The articles constituted a league
or treaty between the several states. They purported to have been
BL.Ooir«r.L.(8D.]DD.)— 3
34 THE UNITED STATES AND THE STATES. (Ch. 2
adopted by delegates from the individual states, and to establish a
"firm league of friendship" between those states. They were supersed-
ed by the constitution of the United States. This new government
created a federal republic. It was not established by the states. It is
not a league, treaty, convention, or compact between those states. It
does not depend, either for its existence or its continuance, upon the
consent of the states. The organic act, the constitution, was framed
by delegates representing the several states in convention. But it was
submitted to the consideration and acceptance of the people. The
states did not act upon it. It was ratified and adopted by the people of
the United States, who, acting for purposes of convenience within their
respective states, appointed delegates for the sole purpose of deciding
upon its adoption. Upon the ratification of the constitution, not mere-
ly the states, but also the people, became parties to the fundamental act.
This is also shown by the language of the preamble, which declares
that "We, the People of the United States, in order to form a more
perfect Union, * * * do ordain and establish this constitution for
the United States of America." This doctrine is sanctioned by the de-
cisions of the supreme court, the final interpreter of the constitution,
from the very beginning of the government, by the course of the exec-
utive and legislative departments of the government in acting upon it
and practically accepting it, and by the general consensus of opinion
among the people, as shown'by the events of our national history.'*
An Organic Fundamental Law,
The United States being a sovereign and independent nation, the
constitution is its organic and fundamental law. By this is meant that
the constitution is the supreme act of legislation, ordained by the people
themselves, by which the sovereignty, nationality, and organic unity
of the nation is declared, the foundations of its government laid and
established, and the organs for the execution of its sovereign will creat-
ed. It is moreover a basic or fundamental law, which is supreme and
unvarying, and to which all other laws, ordinances, and constitutions,
by whomsoever adopted, must be referred. as the criterion to determine
their validity.
«• 1 Story Const |§ 306-372 ; Chlaholm v. Georgia, 2 Dall. 419, 1 L. Ed. 440 ;
Martin v. Hunter, 1 Wheat 304, 4 L. Ed. 97; CJohen v. Virginia, 6 Wlieat
264, 5 L. Ed. 257 ; McCuUoeh v. Maryland, 4 Wheat. 316, 4 L. Ed. 579 ; Gib-
bons V. Ogden, 9 Wheat 1, 6 L. Ed. 23; Rhode Island v. Massachusetts, 12
Pet 657, 9 I* Ed. 1233; Lane Ck)unty v. Oregon, 7 Wall. 71, 19 L. Ed. 101;
Texas V. White, 7 WaU. 700, 19 L. Ed. 227; U. S. v. Cruikshank, 92 U. S.
§ 17) THK OOMSnTDTION AS A OBANT OF POWKBa. 85
THE oomTrrnnoH as a oaAirr of powers.
17. Vkm fodeval coBstitiitlini eoataiiui a srsat mt powers to the ^aw^
evmsMBt ^rkiok it oreatea, In&t la not exhaiuitiTe of tlio powers
^rUek tlio people wbo ipalntalm it aiisl&t eoiifer upon tlutt
The OMistitution contains a grant of certain enumerated powers to
the federal government or to one or other of its departments. All
other powers of government are reserved to the several states or to
the people. Historically the United States, under its present govern-
ment, is to be considered the successor of the confederation. And
therefore the grant of powers to the United States by the constitution
may be considered as an enlargement of, or addition to, the powers
wielded by the central government under the articles of confederation.
But it must not be forgotten that when the constitution was adopted
there came into existence a nation (as distinguished from a league of
states) which possessed absolute and unlimited inherent powers. The
constitution should hence be considered as defining the powers and
prerogatives which the sovereign people of the United States have
deemed fit to confide to their federal government. The limits or scope
of these powers might be either enlarged or restricted by further
amendments to the constitution. But in the meantime, a certain meas-
ure of power has been intrusted to the national government, and the re-
mainder is reserved, to be exercised by the several states, or to remain
in abeyance until the people shall see fit to delegate it to one or the
other government. But from this principle there follows an important
difference, in regard to the test of validity, between federal action and
state action. This will be more fully considered when we come to
speak of the nature and boundaries of legislative power. At present,
it is sufficient to remark that if the validity of federal action is ques-
tioned, the authority for it must be shown in the constitution. But if
the question is as to the validity of state action, it is not the justification
but the prohibition of it which must be pointed out.** That is, state
542, 28 L. Bd. 68& See **C(mstUutian4U Law," Dec Dig. {Key No.) | 27; Cent.
Dig. i SI.
•• Brown v. Epps, 91 Va. 726, 21 S. EL 119, 27 L. IL A. 676 , Eckerson ▼.
Gtty of Des MolneB, 187 Iowa, 452, 115 N. W. 177 ; Straw v. Harris (Or.) 103
Pac 777. See '^Oonetitutional Law,"* Dec Dig. {Key No.) H 26, 27, kS; Cent.
Dig. n SO, SI, 4$; **Btates,'* Dec Dig. {Key No.) | 4; Cent. Dig. I 0; '^United
8U$e$,** Dec Dig. UCey No.) | i; Cent. Dig. | !•
36 TSB UNITED STATES AND THE STATES. (Ch. 2
action is presumed to be well warranted until the objector has been able
to point out the specific provision of either the federal constitution or
the state constitution with which it is incompatible.
THE CONSTmrnON AM THE SUPREBIE UL'W.
18. Tke eonstitiitioa of the United Etates im the snpreote Imw ef the
land, aad im equally hlndins upon the federal soTematent and
the states and all their ofileers and people. Any and all enaet-
meats whieh may be found to he in eonfliet with the eonsti*
tntion are nnll and Toid*
The constitution itself declares that it shall be the supreme law of
the land. This supremacy of the constitution means, first, that it must
endure and be respected as the paramount law, at all times and under
all circumstances, and in every one of its provisions, until it is amended
in the mode which itself points out or is destroyed by revolution. Sec-
ondly, it means that all persons are bound to respect the constitution as
the supreme law. It is not merely a limitation upon legislative power„
but is equally binding upon all the departments and officers of govern-
ment, both state and national. Thirdly, it means that no act of legisla-
tion which is contrary to its provisions is to be regarded or respected
as law. A treaty which is in violation of the constitution would be
null and void. So also would any act of congress which should be in
excess of the legislative power granted to that body by the constitu-
tion, or in disregard of any of its prohibitions. If the people of a state
amend their constitution or adopt a new constitution, it must conform
to the federal constitution. If it does not, it is of no effect. And every
act of the legislature of every state must equally obey the mandates of
the supreme law, at the risk of being declared a nullity.** But this
provision does not operate to make every clause of the federal consti-
tution a part of the constitution of each state. It relates only to mat-
ters wherein the general government assumes to control the states, ei-
ther by the exercise of exclusive jurisdiction or by direct prohibition
of certain kinds of legislative action by the states.*^ Moreover, acts
«o Central of Georgia R. Ck>. v. Railroad Ck>mml88lon of Alabama (C. G.) 161
Fed. 925; Montgomery v. State, 55 Fla. 97, 45 South. 879; Snyder r. Balrd
Independent School Dlst (Tex.) Ill S. W. 723; Com. v. International Har-
yeeter Co. (Ky.) 115 S. W. 703. See ^'Constitutional Law,'* Dec Dig. (Key-
^0.) H 26, rt, SS-kO; Cent, Dig, §§ SO, SI, SmSS.
41 In re Rafferty, 1 Wash. St 882, 26 Pac. 465. Subject to these Umlta-
§ 18) THB oovsnTunoir as the supreme xaw. S7
of congress passed in pursuance of the constitution are also the "su-
preme law of the land/' Hence any act of congress which is valid and
constitutional is supreme as against any law of a state which conflicts
with itX When a state statute and a federal statute operate upon the r
7same subject-matter, and prescribe different rules concerning it, and the fr
federal statute is one within the competency of congress to enact, the j^
I state statute must give way; it is in effect no law, but an abortive at-r'
( tempt to exercise a power not possessed by the state legislature.** f
/}
tloBS, tbe mandates of the state constitution are the supreme law to the legris-
latlve, ezecntlTe^ and Jndlcial departments of the state government State r.
Skecgs, 154 Ala. 249, 46 South. 288. 8w **OanstUutional Law^ Deo. Dig. {Key
No.) H te, rt, S7-40; Cent, Dig. |§ SO, SI, S6^8; "8tate9,'* Dec. Dig. (Key No.)
f 4; CetU. Dig. | 2.
«t Golf, a ft S. F. R. Go. T. Hefley, 158 U. 9. 98» 15 Sup. Ct 802, 39 L. Bd.
910; Columbia Wire Go. t. Freeman Wire Go. (C. G.) 71 Fed. 302; Tandy v.
Elmore-Cooper lAve Stock Commission Co., 118 Mo. App. 409, 87 S. W. 614;
State T. HanMm, 16 N. D. 347, 113 N. W. 371 ; State ▼. Adams Szpress Co.
(iDd.) 86 N. B. 966, 19 L. R. A. (N. S.) 9a See **8tate^** Deo. Dig. (Key No.)
I 4; Oemi. Dig. | 2; ''Ooiutitutional Law,*' Dec. Dig. (Key No.) i SS; Cent.
Dia.%se.
88 BSTABLISHMBNT AMD AMSNDMBNT OF CONSTITUTIONS. (Ch. 8
BSTABUSHMENT AND AMENDMENT OP CONSTITUTIONS.
19. Oovemment of the Oolonles.
20. The Ck>ntinental Congress and the Articles of ConfederatloiL
21. Establishment of the Federal Constitution.
22-24. Amendment of the Federal Constitution.
25-27. Establishment of State Constitutions.
28-29. Amendment of State Constitutions.
GOVEBNMEIfT OF THE COLONIES.
10. PreTloiui to the War of ladepondeaoe, the tbirteen politloal coat-
BLvnitiMi whiek afterwards beoame tbo orisiaal states of tho
Amerioaa Union were oolonles of Groat Britain. Three f onns
of KOTemment obtained in the colonies t
Ca) ProTinciaL
Cb) Proprietary.
(c) Charter.
The first form of government was that which prevailed in the prov-
inces of New Hampshire, New York, New Jersey, Virginia, North Car-
olina, South Carolina, and Georgia. Under this system, a goyemor
was appointed by royal commission, to act as the king's representative.
He was invested with general executive power, a veto'SSTTocal legisla-
tion, and the power to establish courts and appoint judges. He was
assisted by a council, also nominated by the king, which acted as the
upper house of the local legislature. The lower house consisted of a
general assembly of representatives of the freeholders of the province.
In the proprietary governments the direct executive power had been
granted out by the crown to individuals, who held them in the nature
of feudatory principalities, wilR aH the inferior royalties and subordi-
nate powers of legislation which formerly belonged to the owners of
counties palatine, but still subject to the sovereignty of the parent coun-
try. The proprietaries appointed the governors, and legislative assem-
blies were convened under their authority. This form of government
existed, at the time of the revolution, in M^j^daod^ Pennsylvania, and
Delaware.
In three of the colonies, Massachusetts, Rhode Island, and Connecti-
cut, the government was founded on charters granted by the crown,
§ 19) OOVSJRNMBNT OF THE GOIiONIBS. 89
which secured to them a larger measure of liberty, and indeed invested
them with general powers of local self-government, subject only to the
suzerainty of Great Britain and to certain particular restrictions which
will be presently noticed. In the first-mentioned colony, indeed, the
governor was appointed by the king; but in the two others the govern-
or, council, and assembly were annually chosen by the freemen, and
all other officers were appointed by their authority.
In all the colonies the people claimed the right to enjoy all the liber-
ties, privileges, and immunities of British subjects, including those
safeguards against royal or governmental oppression which had been
gradually evolved in the course of English history, and the benefit of
the common law, in so far as the same was applicable to their needs
and their situation. They also claimed that, for all purposes of domes-
tic and internal regulation, their own legislatures possessed entire and
exclusive authority. In all matters of this sort, it was strenuously denied
that parliament possessed the power to legislate directly for the colo-
nies. England's financial straits having forced her to attempt the levy
and collection of taxes in the colonies, by act of parliament without
the concurrence of the local legislatures, the power to tax the people
without representation on their part was stoutly resisted and denied,
and this was one of the causes which led to the revolt of the colonies.
On the other hand, it was always provided that the laws passed by the
colonial legislatures should not be repugnant to, but, as near as might
be, agreeable to, the laws and statutes of England, and this sometimes
gave occasion to the royal government to set aside or destroy acts of
the local legislatures. Again, there could be no full measure of self-
government when the legislative functions of the popular assemblies
were participated in by a governor and council not chosen by the suf-
frages of the people. Moreover, the king and parliament never aban-
doned the claim that they had authority to bind the colonies by legisla-
tion in all cases whatsoever. Appeals lay to the king in council from
the decisions of the highest courts of judicature in the colonies ; and
English statesmen contended that the royal prerogative was exercis-
able in his colonial dependencies in many more particulars than the
colonists were willing to concede.*
1 See 1 Story, Const IS 15&-197.
<
40 BSTABLISHMBNT AND AMENDMENT OF CONSTITUTIONS. (Ch. 3
THE OONTINENTAL OONGBESS AHD THE ARTICLES OF OONFED-
ERATION.
20. Tbe first positlTe step towards tke Uadoa iras tke f omuttloa of
the Co^itiiiental Ssmcress, a revolutionary body, irUoh inavsv-
rated tlM war, declared tke iadependenee of the colonies, and
drafted certain articles of confederation. Upon tke ratlflca-
tlon of tkese articles by tke states, tke United States of Amer«
lea came Into belns*
The Continental Congress,
, The first national Jegislative^ assembly in the United States was the
/'Continental Congress, which met in 1774; in pursuance of a recom-
mendation made by Massachusetts and adopted by the other colonies.
In this congress all the colonies were represented except Georgia. The
delegates were in some cases chosen by the legislative assemblies in the
states; in others, by the people directly. The powers of this congress
were undefined. The recommendation which led to it contemplated
nothing more than a deliberation upon the state of public affairs. But
by the acquiescence of the states and their people, it proceeded to take
measures and pass resolutions which concerned the general welfare
and had regard to the inauguration and prosecution of the war for
Independence. The first Continental Congress was succeeded in the
jfoUowingjrear, according to its own proposal, by another body chosen
luid organized in the same manner, in which all the states were repre-
/sented. This body provided for the raising and equipping of an army,
/intrusted the command in chief to General Washington, and framed,
J adopted, an<J piomylerated the Declaration of Independence. The Con-
I tinental Congress was not authorized by any pre-existing law or or-
':dinance. Its acts and determinations were entirely outside the pale of
j ordinary law. It was not intended to be permanent, nor was it designed
I to be a national or confederate government. It was merely raised
|up, as an extraordinary institution, to meet the special exigencies of the
j situation of the colonies. It was regarded rather as an advisory body,
wielding the war powers of the whole people, than as a governmenTT
The Articles of Confederation,
" When it became apparent that a war had been entered on which must
result either in the destruction of American liberties or in the intro-
duction to the world of a new nation, it was evident to all those inter-
s On the Continental Congress, see 1 Story, Const. || 198-217 ; Pom. Const
Law, H 45-(>6; Rawle, Const pp. 1^26; 1 Von Hoist, Const. Hist pp. 1-5.
S 20) ABTIGLE8 OF CX>IIFEDBBATION. 41
ested in the conduct of public affairs that the revolutionary congress
was at once too weak and too indefinite a bond between the states. It
was necessary to devise a scheme of association which would insure
vigor and faithful co-operation in the conduct of hostilities and would
also more clearly apportion the powers of government between the'
states and the congress. The congress, to this end, prepared a series
of **Articles of Confederation and Perpetual Union," and submitted \
them to the staifestOf Theirapjpf oval' and ratification in 1777. Before '
the dose of the following year the articles had been ratified by all the
states except Delaware and Maryland. Of these, the former gave in its
adherence in 1779, and the latter in 1781.
The articles of confederation provided that the style of the confed-
eracy should be "The United States of America" ; that "each state re-
tains its sovereignty, freedom, and independence, and every power, ju-
risdiction, and right which is not by this confederation expressly dele-
gated to the United States in congress assembled ;" that "the said states
hereby severally enter into a firm league of friendship with each other,
for their common defense, the security of their liberties, and their
mutual and general welfare, binding themselves to assist each other
against all force offered to or attacks made upon them or any of them
on account of religion, sovereignty, trade, or any other pretense what-
ever." The articles also provided for interstate rights of citizenshipi
the extradition oi-criminals, and the according of full faith^^nd-Qredi^
to the records and judicial proceedings of each state in all the others^
They provided for an annual congress of delegates to be appointed m
the several states, but reserving to each state the power to recall its
delegates or any of them, at any time during the year, and to send
others in their stead. Each state was required to "maintain" its own
del^[ates. Each state was g^ven one vote in "determining questions in
the United States.'' Pf^^vision was made for freedom of speech and
debate, and for the protection of members of the congress from arrest
The prohibitions laid upon the individual states were as follows : They
could not send or receive embassies or make treaties, without the con-
sent of congress, nor grant titles of nobility. They could not make
treaties with each other, without the same consent. They could not lay
imposts or duties which might interfere with treaties made by the
United States. They could not, in time of peace, maintain armies or
navies, except to such extent as congress should judge to be necessary
for their defense. They could not engage in war, without the consent
of congress, except in case of actual invasion or a threatened Indian
depredation, nor commission ships of war, nor g^ant letters of marque
42 BSTABLISHMBNT AND AMBNDMBNT OF CONSTITUTIONS. (Ch. 3
or reprisal, unless after the United States had declared war, and then
only against the other belligerent and under congressional regulation^
"unless such state be infested by pirates." "All charges of war and all
other expenses that shall be incurred for the common defense or gen-
' eral welfare, and allowed by the United States in congress assembled,
shall be defrayed out of a common treasury, which shall be supplied
by the several states, in proportion to the value of all land within each
state granted to or surveyed for any person, as such land and the
buildings and improvements thereon shall be estimated according to
such mode as the United States in congress assembled shall from time
to time direct and appoint. The taxes for paying that proportion
shall be laid and levied by the authority and direction of the legisla-
tures of the several states within the time agreed upon by the United
States in congress assembled." The powers confided to "the United
States in congress assembled" were principally as follows: To de-
termine on peace and war; send and receive ambassadors; enter
into treaties and alliances; establish rules for prizes and captures on
land ; to grant letters of marque and reprisal ; establish courts for the
trial of piracies and felonies committed on the high seas; to act as the
last resort on appeal in all disputes and differences between the states
on questions of boundary, jurisdiction, or other cause ; to regulate the
alloy and value of coin struck by their own authority or that of the re-
spective states ; to fix the standard of weights and measures ; to reg-
ulate trade and manage affairs with the Indians ; to establish and reg-
ulate post-offices from one state to another ; to appoint superior officers
of the army and navy, and make rules for the government and regu-
lation of the land and naval forces, and direct their operations; to ap-
point a committee, to sit in the recess of congress, to be denominated
a "committee of the states," and consisting of one delegate from each
state; to appropriate and apply money for defraying the public ex-
penses; to borrow money and emit bills on the credit of the United
States ; and to raise and maintain an army and navy. But in regard
to nearly all these powers (and certainly all the most important of
them), it was provided that they should never be exercised by the con-
gress "unless nine states assent to the same."
Defects of the Articles of Confederation,
The articles of confederation were designed to bind the states to-
gether in a "firm league," but they proved to be no better than a rope
of sand. Washington spoke of the confederation as "a shadow without
the substance" and described congress as a "nugatory body." The
8 21) SSTABLISHMBKT OF THX FSDBRAL OOKSTXTUTIOK. 43
Union, as thus constituted, was dependent on the states. Then was
a central governmgttpJmLit was not intrusted with the means of its
own preservation. It h^ jiq ^ecutive ; it had no courts; it had no
power to raise stQ^pliMr^ "Congress had hardly more than an ad-
visory power at the best. It had no power to prevent or punish of-
fenses against its own laws, or even to perform effectively the duties
enjoined upon it by the articles of confederation. It alone could de-
clare war, but it had no power to compel the enlistment, arming, or sup-
port of an army. It alone could fix the needed amount of revenue, but
the taxes could only be collected by the states at their own pleasure.
It alone could make treaties with foreign nations, but it had no power
to prevent individual states from violating them. Even commerce, for-
eign and domestic, was to be regulated entirely by the states, and it was
not long before state selfishness began to show itself in the regulation
of duties on imports. In everything the states were to be sovereign,
and their creature, the federal government, was to have only strength
enough to bind the states into nominal unity, and only life enough to as-
sure it of its own practical impotence." * Congress had the power to
coin money, but had no bullion. It could emit bills of credit, but had
no funds to redeem them. Even the expenses of its own members were
to be defrayed by the state& which sent them and which could recall
them. In dBFect, all the powers granted to the general government by
this constitution, if they were not self -executing, were entirely at the
mercy of the individual states. It therefore became necessary to "form
a more perfect Union" by establishing a constitution which should
provide the central authority with adequate powers and adequate means
for securing their enforcement*
ESTABXiISHMElIT OF THE FEDE&AXi OONSTIT UTIOH.
Sl« Tkm MMwtitvtiom of tlie Uadted States was f raiaeii hw ^
tioaal eoBTentloa oalled for tlio purpose of reTisin^ tlie arti-
eles o7 eoaf ederatioa. Betas salnaltted to tke people, it was
dmly ratified by them, aetinc witUn tkeir respeetive states,
aad beesme the faadaateatal law of the aation.
The constitutional convention met in 1787, in pursuance of a reso-
hition of congress, whereby it was recommended that a convention of
• jobiuL Am. Pol. 7.
«0n the articles of oonfederation, see 1 Story, Const H 218-271; Pom.
OoDst Law, if 57-75 ; Bawle, Const pp. 2&-28 ; Federalist, Mos. 15-22.
44 B8TABLISHMENT AND AMENDMENT OF CONSTITUTIONS. (Ch. 3
^>vA delegatoSfi* who should be appointed by the several states, be held at
Philadelphia* lir the sole and express purpose of revising the articles
of confederation, and reporting to congress and the several legislatures
such alterations and provisions therein as should, when agreed to in
congress and confirmed by the states, render the federal constitution
adequate to the exigencies of government and the preservation of the
Union. The convention was composed of delegates from all the states
except Rhode-island. The resolution from which they derived their
authority contemplated nothing more than a revision of the articles of
confederation. But the convention was not long in determining that
the whole scheme of government therein contained was so defective
that it was beyond hope that the evils and inconveniences complained
of by the people could be remedied by any process of patching or mend-
ing the old constitution. la^tl^siiLJudgment, what was needed was an
rntirrly jjrw ffftmr nf govemntent. And this they proceeded to con-
struct.* Technically, they exceeded their authority, and hence, in a
strict sense, their proceedings may be said to have been extra-legal, or
even revolutionary. But they did not assume to impose the result of
their labors upon the nation as a binding organic law, but offered it as
a constitution to be discussed and to be ratified and confirmed before
it should become operative. As a group -of citizens, they had the un-
questionable right to suggest a new constitution of government. And
this was what in effect was done. The convention did not "report al-
terations and provisions'' to be made in the articles of confederation.
The authority granted to them was never exercised. But in lieu there-
oi, they submitted to congress and the people a new frame of govem-
i ment, which was eventually accepted and confirmed. The draft of the
J constitutioajKgs laid before congress andJxy them submitted to the sev-
/ eral states. It contained a provfsTon that as soon as it should have been
P ** ' I lib «a»
I ratified by nine of the states, it should become binding on those states.
I There ensued long, exTiaustive, and acrimonious debates on the question
I of its adoption. But in the course of a year eleven of the states had
I ratified the constitution, and in Septfimbpr».Jl7^&. congress made pro-
i vision for the first election of federal officers and the inauguration of
I the national government under the new constitution. On the 30th of
T
V.
B The framerB of the constitution had before them three purposes: The con-
struction of a ne^ national goyemment ; the establishment of a dual system
of government with the distribution of powers between the general or national
government and the local or state governments ; and the placing of certain
immutable restrictions upon the powers of government to secure the indirld-
S8 32-24) AMBMDMSIIT OF THB FEDERAL OOMSTITUTIOM. 46
April, 1789, the first President of the United States took the oath of
office, and the present government began the exercise of its functions
as marked out in the constitution. The states of North Carolina and
Rhodejsland were not in the Union from the beginning. The former
ratified the constitution in 1789, and the latter in 1790.*
AMEBmwaSST OF THE FEDE&AXi OONSTITUTION.
tSL ABMii4»«ats to tlM federal eoastitiitieia may be pvopesed Im two
(a) ByooasvoH.
(b> By m oomTemttom eollod by eoas>oes for tbat yvrpose.
SS. Aaumdmmmtm yvoposed la eitker metbod mvet be ratUled by tbvee-
foartba of tbe vtatesi and tbie mmj be dome in eltbev of two
ways, aoeordins a* one or tbe otber aiode laay be proposed by
eoacvoee, vlitt
<a> By tbe losi>l*t«res of tbe states, aeting as tbe representatlTes
of tbe people.
Cb> By eoATeations bold la eaeb state for tbe purpose.
Sd« FIfteoa aaaeadaients to tbe federal eoastttntioa bave tbas f/ir
beea adopted.
The fifth article of the constitution provides that "the congress, when-
ever two-thirds of botli lious.es shall deem it necessary, shall propose
amendments to this constitution, or, on the application of the legisla-
tures of two-thirds of the seyqr^nstates, shall call a convention for
proposing amendments, which, in either case, shall be valid to all in-
tents and purposes, as part of this constitution, when ratified by the
legislatures of three-fourths of the several states, or by conventions in
three-fourths thereof, as the one or the other mode of ratification may
be proposed by the congress." Thus far, fifteen amendments have been
made to the federal constitution. In every case the amendment has
been proposed by congress and ratified by the states. No-convention
for revising the constitution, or proposing amendmeqtsJto it, has ever
been called. It should be noted that the article which contains the pro-
vision for amendments also enacts that no state, without its consent,
ual rights of the citizen. They attempted no restrictive legislation, but left
the people of tbe United States free to make their own laws. South Carolina
V. United States, 39 Ct d. 257, affirmed in 199 U. 8. 437, 26 Sop. Ct. 110, GO
L. Ed. 261. See **Cim8tituiional Law,** Dec Dig. {fey Vo.) H i-^, 10 j OetU.
Dig. U 1-7.
• See 1 Story. Const If 272-279.
46 BSTABLISHMBNT AND AMENDMENT OF CONSTITUTIONS. (Ch. 3
shall be deprived of its equal suffrage in the senate. This is the one
irrepealable clause of the constitution. And it is the provision which,
more than all others, secures to each state its rightful independence and
autonomy.
The First Ten Amendments.
The ratification of the constitution of the United States was procured
from the states with great difficulty. Objections were proffered to
almost every one of its provisions. This arose partly from local pride
and jealousies, and partly from a strong distrust of the central govern-
ment about to be erected. The several states, in )delding their assent,
proposed and strongly urged the addition of such amendments as would
guaranty, on the one hand, the protection of personal rights and liber-
ties against federal oppression, and on the other hand, the retention by
the states of such powers as were not specifically granted to the general
government. It is said that no less than 201 of such amendments were
suggested in the different state conventions. So urgent was the call for
a more explicit settlement of these questions that congress, at its first
session, prepared and submitted to the states a series of twelve amend-
ments to the constitution. Ten of .these were ratified by eleven of the
states during the next two years, that is, be£or« the close of 1791. And
these now constitute the first ten amendments. Nine of them are in-
tended as a bill of rights. They guaranty to individuals protection (as
against federal action^gi^ly) in respect to those rights and immunities
which were considered to be inadequately provided for in the constitu-
tion itself.^ TheJtenth-fiStahlishes the principle that the government of
the United States is one of delegated and limited powers, and that those
I powers which are not confided to it by the constitution, nor prohibited
thereby to the states, are reserved to the states respectively or to the
^'^^ople.^
The Eleventh Amendment,
This amendment was adopted in consequence of the decision of the
supreme court in Chisholm v. Georgia, 2 Dall. 419, 1 L. Ed. 440, that
T The object of the first eight amendments to the federal constitution was to
Incorporate into It certain principles of natural Justice which had become per-
manently fixed in the Jurisprudence of the mother country, and therefore the
construction given to those principles by the English courts is cogent evidence
of what they were designed to secure, and of the limitations which should be
put upon them. Brown v. Walker, 161 U. S. 591, 16 Sup. Gt 644, 40 L. Ed.
819. See 'Vonatiiutional Law,*' Deo. Dig. (Keu No,) H 11-21; Cent. Dig. i§
9-17.
s 1 Story, Const. | 803 : 2 Story, Const |{ 1857-1909.
\^^
'■v . . 0 \« -
§§ 22-24) AMENDMENT OF THE FEDERAL CX^NSTITUTIOK. 47
a state of the Union was liable to fee SUQcLlike akJ^iwt^.Rerson, by a
citizen of another state or of a foreign country. "That decision creat-
ed such a shock of surprise throughout the country that, at the first
meeting of congress thereafter, the eleventh amendment to the consti-
tution was almost unanimously proposed, and was in due course adopt-
ed by the legislatures of the states. This amendment, expressing the
will of the ultimate sovereignty of the whole country, superior to all
legislatures and all courts, actually reversed the decision of the su-
preme court. It did not in terms prohibit suits by individuals against y
the states, but declared that the constitution should not be construed (
to import any power to authorize the bringing of such suits." • —
The Twelfth Amendment.
This amendment, which introduces a change in the manner of elect-
ing the President and Vice-President, was adopted in consequence of
the difficulties which attended the election of <l8pt. In that year, when /
the electoral votes were counted, it was founS that Jefferson and Burr
had each received 73, and consequently, as the constitution then stood,
the election was cast upon the house of representatives, although it was
notoriously the intention of the electors that Jefferson should be Presi-
dent and Burr Vice-President. Hence congress, in 1803, proposed the
twelfth amendment, in lieu of the original third paragraph of the first
section of the second article of the constitution, and it was duly ratified
by the states. The amendment remedies the defect in the original pro-
vision of the constitution by providing for the casting of separate bal-
lots for the two offices.
The Last Three Amendments,
The thirteenth, fourteenth, and fifteenth amendments were ratified
by the requisite majority of the states in 1865, 1868, and 1870, re-
spectively. They were rendered necessary by the events of the civil
war, and the desire to prevent the possibility of any similar conflict
in the future. They were designed to insure the utter and final aboli-
tion of slavery throughout the United States and all its dominions, and
to securcjo ijie newly emancipated race the same privileges of citizen-
ship, and of persoggd^axMl-political rights, which were previously en-
joyed by^alFothers under the constitution. The legal effect of these
amendments and of their specific provisions will be discussed in another
place.
• Pw Bradley, J., In Hans v. Louisiana, 134 U. S. 1, 10 Sup. Ct. 504, 83 L.
Ed. 842. £ree **Btate9;* Dec. Dig. (Key No.) {f 190, 191, 19S; Cent. Dig. {§
n^m, 186.
48 BSTABLISHMBNT AND AMBNDMBNT OF CONSTITUTIONS. (Ch. 3
Presidenfs Approval of Amendments.
It has been made a question whether a proposed amendment is such
an act of legislation as must be submitted to the President, before it
goes to the state legislatures, for his approval, and whether he has the
right to veto it. Executive and legislative precedent has settled this
question in the negative, and considerations drawn from the wording
of the constitution lead to the same result. *• Nor is the question of
great practical importance, because the concurrence of two-thirds of
both houses of congress is required to the proposing of amendments,
and the same majority would be sufficient to overrule the President's
veto, should one be interposed.
E8TABUSHMEHT OF STATE OOHSTITimONB.
S6. All of the orieiaal states firamsd and adopted eonstitations for
themselves, eleven of them antedating the oonstitntion of the
United States.
Whenever a new state is admitted into the Union, its people have
the right to ordain their own oonstitntion, irhioh, however,
mnst eonf orm to the federal oonstitntion.
At the elose of the late Oivil War, the states whioh had been in
rebellion were required to adopt new eonstitntions reeognis"
ing the snpremaey of the Union and the validity of the new
amendments.
Reconstruction.
At the end of the civil war, congress claimed and enforced the right
to take measures for the restoration of those states which had passed
secession ordinances to their normal and harmonious relations with
the federal government. These acts were called the "reconstruction
acts."' By them, among other things, those states were required to
adopt constitutions which should recognize the supremacy of federal
law, the inviolability of the Union, the abolition of slavery, and such
other provisions as are found in the last three amendments. This being
done by those states, their senators and representatives were again
admitted to their places in the national legislature, and the states them-
selves to all the rights and privileges of the Union. It should be
noticed that this was altogether a different matter from the action
which congress may take upon the admission of a new state into the
Union. For these states were never out of the Union. And neither
10 See Hollingsworth v. Virginia, 8 Dall. 378, 1 L. Ed. 644. See 'VonstUt^
tiowa Law,'' Deo. Dig. {Key No.) f 10; Cent. Dig. | 4.
H S8-S9) AllBIIDMBKT OF 8TATB OONSTITUTIOirg. 48
it an attempt on the part of congress to make constitutions for
those states. The constitutions were made and adopted by the people
of the several states affected.^ ^
AMEHBXEIIT Of STATE OOHSTITUTIOHS.
ta. A stato Mastltmtftmi may b« vwrlMd w MMaded by the yeople of
th» stat«» at tk«lr owm plMuraro, rabject to tbo f oUowlmc Uini-
tationst
Ca> Tko mmmnidmmmt or vorlsiom mvst bo mado Im tbo modo polatod
o«t bj tho ooaotit«tiom» If any, or dtvootod by tbo losialatiuro.
Cb) It mvot bo adoptod by tbo TOto of tbo ««mllflod olooton of tbo
Co> It mvot mot bo Im oay portieiilor ropvsiuu&t to or laooaoUtomt
witb tbo ooaotlt«tlo& of tbo Uadtod Statoo.
SO. Tbo worb of vorUtom of a otato eonotitntiom la wraally doao by a
ooBotltatioaal ooBToatioa, oboooa la aomo lawfal maaaor, wbiob
>«f oi« tbo rooalt of its labors to tbo popalav voto.
Mode of Amendment
Aside from the question of revolutionary action, a state constitution
can be revised or amended only in the mode provided by the instrument
itself, or as directed by an enactment of the legislature.** If a voltm-
teer convention (that is, one not authorized either by the constitution
or an act of the legislature) should frame a revision or amendment of
the constitution, its work would have no more force than the expression
of so much private opinion. If it were submitted to a vote of the peo-
ple, the election had upon it would be illegal.** And if the constitution
merely gives the legislature power to prepare amendments and submit
them to the people, the l^slature has no authority to call a convention
to draft a new constitution and then submit it to the popular vote.*^
But the proposal of amendments to the constitution is not an ordinary
legislative function, and in this particular the legislature acts more in
the capacity of a constitutional convention, though bound by the restric-
11 Texas v. White, 7 WaU. 700, 19 L. Ed. 227; In re Hughes, 61 N. 0. 57.
See "Sfofet," Dec. Dig. (Key No.) { If; Cent. Dig. { 17.
IS Rassie v. BnuEseU, 12S Mo. 93, 30 S. W. 520, 49 Am. St Rep. 542. See
•^CanMtitutUmdl Law,** Dec. Dig. {Key No.) {| 4-9; Cent. Dig. U B-8.
IS WeUs ▼. Bain, 75 Pa. 89, 15 Am. Rep. 563 ; Koehler v. HUl, 60 Iowa, 543,
14 N. W. 738 ; In re Constitational Convention, 14 R. I. 649. See "Constitu-
iionai Law/* Dec. Dig. {Key No.) H 4-9; Cent. Dig. §| i-8.
i« In re Ck>nBtitutional Conyention, 14 R. I. 649. But compare Wells ▼. Bain,
75 Pa. 39, 15 Am. Rep. 563. See "Vonstitutional Law,** Deo. Dig. {Key No.) §8
4^; Cent. Dig. H ^^'
BL.CoifaT.Ii.(aD.ED.) — 4
50 BSTABLISHMBNT AND AMENDMENT OF CONSTITUTIONS. (Ch. 8
tive provisions of the constitution.** It is also held that where the leg-
islature, convened in special session by the governor, is limited to the
transaction of business named in his call, it has no power to frame
and propose amendments to the constitution if that subject was not
mentioned in the governor's proclamation.**
Same — Proceedings in Legislature.
Where a constitutional amendment is drafted in the legislature and
prepared for submission to the popular vote, it is commonly done by a
joint resolution,*^ which is usually required to be read a certain num-
ber of times, or on a certain number of separate days, in both houses,**
and to be entered at large upon their journals.** In some states the
constitutions forbid the legislature to propose more than one consti-
tutional amendment at the same session.** It is not necessary that such
an amendment should be preceded by a title, like a statute;** and it
has sometimes been held that a substantial compliance with the direc-
tions of the constitution as to the proposal and submission of amend-
ments is sufficient for their validity if they are accepted by the people.**
Same — Submission and Election.
The mode of submitting the amendment to the people must be that
prescribed by the constitution, if any,** though if the constitution
makes no provision on this subject it is left to the discretion of the leg-
1 B City of Chicago v. Reeves, 220 111. 274, 77 N. B. 237 ; Weston v. Ryan,
70 Neb. 211, 97 N. W. 347. See ^'Constitutional Law,'* Dec. Dig. {Key No.) |i
4-9; Cent. Dig. SI 2-S.
i« People V. Curry, 130 Cal. 82, 62 Pac. 516. See "Constitutional Law," Dec.
Dig. (Key No.) SI 4-9; Cent, Dig. || 2-8.
IT state V. Herrled, 10 S. D. 109, 72 N. W. 98; Hays v. Hays, 5 Idaho, 154,
47 Pac. 732. See "Constitutional Law,'* Dec. Dig. (Key No.) | 7; Cent. Dig.
II S, 4.
IS Saunders v. Board of Liquidation, 110 La. 313, 34 South. 457. See "Con-
stttutional Law,** Dec. Dig. (Key No.) | 7; Cent. Dig. || S, 4.
10 Durfee v. Harper, 22 Mont. 354, 56 Pac. 582; State v. Herrled, 10 S. D.
109, 72 N. W. 93 ; McBee v. Brady adaho) 100 Pac. 97. See "^Constitutional
Law,** Dec. Dig. (Key No.) i 7; Cent. Dig. H 9, 4.
20 city of Chicago v. Reeves, 220 111. 274, 77 N. E. 237; Gabbert ▼. Chicago,
R. I. & P. R. Co., 171 Mo. 84, 70 S. W. 891. See "Constitutional Law,** Dec
Dig. (Key No.) | 6; Cent. Dig. || 2-5.
21 Saunders v. Board of Liquidation, 110 La. 313, 34 South. 457. See "Con-
stitutional Law,** Dec. Dig. (Key No.) | 5; Cent. Dig. | 2.
22 Hays v. Hays, 6 Idaho, 154, 47 Pac. 732. See "Constitutional Law,** Dec
Dig. (Key No.) | 6; Cent. Dig. || t-5.
22 Kadderly v. City of Portland. 44 Or. 118, 74 -Pac. 7ia See "OonetUih
tional Law,** Dec. Dig. (Key No.) { 6; Cent. Dig. i| tS.
§S 28-29) AMENDMENT OF STATE CONSTITUTIONS. 61
islaturc,** and it will be presumed that the general election law of the
state is to be applicable if no different provision is made.** The courts
will not set aside the election because of mere irregularities and in-
formalities in declaring the result.** It is commonly provided, how-
ever, that if more than one proposed amendment to the constitution is
submitted at the same time, they shall be submitted in such manner and
form that the people may vote for or against each amendment separate-
ly.*^ The amendment must be adopted by the vote of a majority of the
electors. But this does not necessarily mean a majority of all the
qualified voters of the state, whether or not they participate in the
vote on the amendment ; *• more commonly it is taken to mean a ma-
jority of those voting at the particular election at which the amendment
is submitted ; a majority of those voting on the proposed amendment
IS not sufficient unless they also constitute a majority of all those vot-
ing at the election.**
Govemof^s Approval of Amendment.
The amendment itself need not be submitted to the governor for his
approval or veto. But the proposition, or resolution, of the legislature
to refer the amendment to the popular vote may take such a shape as
to fall within the designation of ordinary legislation, and so require
flic assent of the executive. The practice in the different states, in
this particular, is not uniform.**
s« People y. Loomls, 135 Mich. 556, 98 N. W. 202. See ''Constitutional Law,"*
Dec Dig. {Key 'So.) | 9; Cent. Dig. {§ 5, 7.
«» State v. Winnett, 78 Neb. 379, 110 N. W. 1113, 10 L. R. A. (N. S.) 149.
Be€ ''Constitutiondl Law,*' Dec. Dig. {Key No.) § 9; Cent. Dig. §{ 5, 7.
s« Weston ▼. Ryan, 70 Neb. 211, 97 N. W. 347. And see People v. Sours, 31
Oolo. 309, 74 Pac. 167. 102 Am. St. Rep. 34. See ''Constitutional Law," Dec
Dig. {Key No.) ^9; Cent. Dig. SI 5, 7.
3T Bott T. Wurts, 63 N. J. Law, 289, 43 Atl. 744, 45 L. R. A. 1251 ; State ▼.
Laylln, GQ Ohio St 1, 68 N. B. 574 ; State v. Herried, 10 S. D. 109, 72 N. W.
98; In re Opinion of Supreme Court (R. I.) 71 Atl. 798; McBee v. Brady
a^bo) 100 Pac. 97. See "Constitutional Lau>,^ Dec Dig. {Key No.) {9; Cent.
Dig> H 5, 7.
tt Bott T. Wurts, 68 N. J. Law, 289, 48 Atl. 744, 45 L. R. A. 251 ; People ▼.
Soars, 31 Oolo. 369, 74 Pac. 167, 102 Am. St Rep. 34. But compare In re Den-
ny, 166 iDd. 104, 59 N. B. 359, 51 L. R. A. 722 ; Carton y. Secretary of State,
151 Mich. 337, 115 N. W. 429. See "Constitutional Law,*' Dec. Dig. {Key No.)
I 9; Cent. Dig. H ^. 7.
>• Knight T. Shelton (a C.) 134 Fed. 423 ; State ▼. Powell, 77 Miss. 543, 27
Sooth. 927; Tecnms^ Nat Bank y. Saunders, 51 Neb. 801, 71 N. W. 779;
Rice y. Palm^, 78 Ark. 432, 96 S. W. 396. But compare Green y. State Board
*• See note 30 on following page.
S2 MTABLISHMBNT AND AHENDMBNT OF CONSTITUTIONS. (Ch. 3
Promulgation of Result.
A constitutional amendment does not become operative upon the
casting in its favor of the necessary majority of votes, but only after
the due promulgation of the result of the election.*^
Province of the Courts.
Whether an amendment to the constitution has been regularly pro-
posed and adopted is not a political question, but a judicial question,
and the courts have power to decide whether or not the legislative de-
partment and its agencies have duly observed the directions of the con-
stitution in attempting to amend it, and to annul their acts in case they
have not done so.** But the courts will not enjoin the publication of
a proposed amendment or its submission to the people on the ground
that it would be invalid if it should be adopted.**
Limits of Power.
What is the limit to the power of the people of a state m revising
and amending their constitution ? Supposing the amendment to be pro-
posed and adopted in a lawful manner, there are no limitations upon
the scope or character of the amendments except such as are to be
found in the constitution of the United States. But these are im-
portant. The people of a state could not, by means of such amendment,
establish any form of government that was not in accordance with the
theory and system of a republic, for the continuance of republican gov-
ernment in all the states is guarantied by the federal constitution. They
of Oanvassers, 5 Idaho, 130, 47 Pac. 259, 95 Am. St Rep. 169. Bee "ConatitU'
tional Law,** Deo, Dig. (Key No.) | 9; Cent. Dig. §{ 5, 7.
•0 See Warfleld ▼. Vandiver, 101 Md. 78. GO Atl. 538 ; Ck)mmonweaIth v.
Grlest, 196 Pa. 396, 46 Atl. 505, 50 L. R. A. 568 ; In re Senate File 31, 25 Neb.
864, 41 N. W. 981 ; State v. Secretary of State, 43 La. Ann. 590, 9 South. 776.
Bee "Conetitutional Lata*' Dec. Dig. (Key No.) §§ 6, 7; Cent. Dig. i§i 2-^5.
«i Sewell y. State, 15 Tex. App. 56; State v. Mayor of Morgan City, 32 La.
Ann. 81 ; People v. Norton, 59 Barb. (N. Y.) 169. The certificate of the Sec-
retary of State showing that a majority vote was cast in favor of a pro-
posed constitutional amendment is, in any collateral proceeding, conclusive
evidence of its ratification. Kingsbury v. Nye, 9 Cal. App. 574, 99 Pac. 985.
Bee **Constitufional Law,'* Deo. Dig. (Key No.) S 22; Cent. Dig. | 18.
»« Bott V. Wurts, 63 N. J. Law, 289, 43 Atl. 744. 45 L. R. A. 251 ; Gabbert
V. Chicago, R. I. & P. R. Co.. 171 Mo. 84, 70 S. W. 891 ; Kadderly v. City of
Portland, 44 Or. 118, 74 Pac 710; McConaughy v. Secretary of State, 106
Minn. 392, 119 N. W. 40a Bee '^Constitutional Law,'* Dec. Dig. (Key No.)
I €8; Cent. Dig. | 126.
»» People V, Mills, 30 Colo. 262, 70 Pac. 322; Frantz ▼. Autry, 18 Okl. 561,
91 Pac. 193. Bee "Constitutional Law,*' Deo. Dig. (Key No.) f 7^; Cent. Dig.
II 134-196.
H 28-29) AMBNDMBNT OF 8TATB OONSTITUnOir& 68
could not deny allegiance to the United States, nor deny that the feder-
al constitution and laws and treaties are the supreme law of the land.
Nor could they exempt their legislative, executive, and judicial officers
from taking an oath or affirmation to support the constitution of the
United States. Neither cotdd they divide the state into two or more
states, thus bringing a new state or states into the Union, or unite with
another state, to form one new state, without the consent of congress.
Nor could they adopt any provision which would impair the obligation
of contracts or pass any bill of attainder or ex post facto law, or grant
titles of nobility. Nor could they deny full faith and credit to the pub-
lic acts, records, and judicial proceedings of the other states ; nor so
r^^late the rights of their own citizens as to deny their privileges and
immunities to citizens of the other states, or abridge the privileges and
immunities of citizens of the United States. Neither could they, by
enactments in the form of a constitution or of amendments thereto, de-
prive any person of life, liberty, or property without due process of
law, or deny to any person within their jurisdiction the equal protec-
tion of the laws. Nor could they thus establish or permit slavery, or
deny or abridge the right of citizens of the United States to vote, on
account of race, color, or previous condition of servitude. Nor could
the state thus assume any of the powers exclusively vested in congress.
But so far as regards the functions and powers of government, and
tfieir distribution and separation, the institutions of the state, the reg-
ulation of personal, social, and political rights, even those heretofore
deemed most fundamental and necessary to the maintenance of free-
dom, in so far as the same are not created or secured by the federal
constitution, the power of the people, in making or amending their
constitution, is plenary and supreme.** A clause in the bill of rights,
in a state constitution, may be amended in the same manner as any
other part of the constitution.* •
Powers of Constitutional Convention.
If the convention is called for the purpose of amending the consti-
tution in a specified part, the delegates have no power to act upon and
propose amendments in other parts of the constitution.** But other-
wise the powers of such a convention are plenary, subject only to the
•4 In re Gibson, 21 N. Y. 9; In re Manaca, 146 Mich. 697, 110 N. W. 75;
Peerce y. KJtzmiller, 19 W. Va. 564. See ^'Constitutional Law," Dec, Dig. (Key
Vo.) H 1-9; Cent. Dig. {§ 1-8.
» State ▼. Cox, 8 Ark. 436. See "Constitutional Law,'' Dec, Dig, {Key 2fo.)
I 7; Cent. Dig. | 5.
s< Opinion of Justices, 6 Cnsh. (Mass.) 573. See ^'Constitutional Law,** Dee,
Dig. (Key No.) | 8; Cent. Dig. | 6.
54 B8TABLISHMBNT AND AMENDMENT OF CONSTITUTIONS. (Ch. 3
m
limitations imposed by the federal constitution.*^ The convention can-
not take from the people their sovereign right to ratify or reject the
constitution or ordinance framed by it, and cannot infuse life and vigor
into its work before ratification by the people.** But the people, in
conferring authority upon the convention, may empower it not merely
to draft a new constitution but to "enact" it, and when this is done,
the new instrument need not be submitted to the popular vote.** Fur-
ther a constitution or ordinance enacted by such a convention without
authority may become valid by ratification, where it is acknowledged
and accepted by the officers of the government and acquiesced in by
the people.*®
Effect of Amendment. m
The adoption of a new constitution repeals and supersedes all the
provisions of the old constitution not continued in force by the new
instrument; and the same rule applies to amendments of an existing
constitution which are inconsistent with the original text of the in-
strument amended, and also to statutory enactments which are incon-
sistent with later constitutional provisions embracing the same subject-
matter.*^
5T Frantz v. Aotry, 18 Okl. 561. 91 Pac. 193. See "Constitutional Law,** Dec.
Dig. {Key No.) § 8/ Cent. Dig. { 6.
88 Woods' Appeal, 75 Pa. 59; State v. City of New Orleans, 29 La. Ann.
863; Qulnlan v. Houston & T. O. Ry. Co., 89 Tex. 3oG. 34 S. W. 738; Ex parte
Birmingham & A. R. Co., 145 Ala. 514, 42 South. 118. See '^Constitutional
Law,** Dec. Dig. (Key No.) | 8; Cent. Dig. § 6.
»» Sproule V. Fredericks, 69 Miss. 898, 11 South. 472; State v. Favre, 51 La.
Ann. 434, 25 South. 93. See "Constitutional Law,'* Dec. Dig. (Key No.) §§ 5, 9;
Cent. Dig. §| i, 7.
«o E2x parte Birmingham & A. R. Co., 145 Ala. 514, 42 South. 118; Taylor
V. Commonwealth, 101 Va. 829, 44 S. E. 754 ; Kamper v. Hawkins, 1 Va. Cas.
20. See "Constitutional Law,'* Dec. Dig. (Key No.) | P; Cent. Dig. §{ 5, 7.
*i Fesler v. Bray ton, 145 Ind. 71, 44 N. E. 37, 32 L. R. A. 578; Griebel v.
State, 111 Ind. 369, 12 N. E. 700 ; Kansas City, Ft. S. & M. R. Co. v. Thorn-
ton, 152 Mo. 570, 54 S. W. 443 ; State v. Frazier, 98 Mo. 426, 11 S. W. 973 ;
People V. Comptroller of City of Brooklyn, 152 N. Y. 399, 46 N. E. 852. See
State v. Kohnke, 109 La. 838, 33 South. 793, as to the effect of a constitutional
amendment ratifying and approving a particular statute previously enacted.
A constitutional amendment Is not to be considered as if it had been in the
original instrument, but rather as analogous to a podicil or a second deed,
altering or rescinding the first, which is referred to only to see how far the
first must yield to give full effect to the last; the legal fiction by which an
amendment to a pleading Is regarded as if Inserted in the first instance does
not apply. Trustees of North Carolina University v. Mclver, 72 N. C. 76. See
"Constitutional Law,** Dec. Dig. (Key No.) §§ 5, 24; Cent. Dig. |{ 2, 21-^29.
S 90) OONSTRUCTIOM AND INTEBPBBTATIQM OF OOMSTIZUTIOMS. <66
CHAPTER IV.
*
CONSTRUCTION AND INTERPRETATION OP CONSTITUTIONS.
30. Office and Duty of the Judiciary.
81. Adjudging Unconstitutionality.
82. The Court.
33. Full Bench.
34. Nature of the Litigation.
35. Parties Interested.
36. Necessity of Decision.
«37. Construction.
3S. Executive Construction.
39. Presumption of Legality.
40. Reference to Journals of Legislature.
4L Motives of Legislature.
42. Policy of Legislation.
43. Natural Justice.
44. Partial Unconstitutionality.
45. Preamble.
46. Effect of Decision.
47. Construction of Constitutions — ^Method.
48-49. Intent to be Sought
OFFICE AHD DUTY OF THE JTUDIOIABT.
SO. Tktt J«dielml department of tlie soTemment is the final and an*
t^orltatiTe interpreter of the eonstitntion*
There is a sense in which every person, even a private individual,
must judge of the meaning and effect of the constitution, in order to
govern his own actions and his dealings with other men. And the
executive and legislative departments of government are clearly un-
der the necessity of making similar determinations, at least in advance
of authoritative expositions by the courts. But as the constitution is
a law, and questions concerning its scope and interpretation, and of
the conformity of public and private acts to its behests, are questions
of law, the ultimate determination of such questions must belong to the
department which is charged with the function of ascertaining and
applying the law. And as the courts have the power to enforce their
judgments, their determination of such questions is final. And as their
decisions are entitled to respect and obedience as precedents, their ex-
Dositions of the constitution are authoritative.
6ft GONSTBUCTION AMD IMTBRPBETATION OF CONSTITUTIONS. (Ch. 4
ADJUDOmO UKCOHSTlTUTIOHAIiITT.
31. It is ike lisht Aa4 dutf 9t tke oovrts to ttxaadae tl&e eoBstttution-
al Tftlidity •£ oTorj statute brov^l^t fairly bef ere tkem aa ap-
plieable to a pondiac eontroTeriy) aaA-^ tlMj flad raeli stat-
ate to be in eontraTontiom of tike eoastitatioB, tbej maj aad
mvet pronoaaee it a anility and no law.i
It is the business of the judicial department of government to inter-
pret and apply the law to cases brought before them. In so doing, they
must determine what is the law applicable to a particular case. A stat-
ute which, if valid, will govern *he case, is presumptively the law for its
decision. But a statute is the expressed will of the legislature, while
the constitution is the expressed will of the people. The latter is par-
amount. If the statute conflicts with it, it is invalid ; it is no law. Now
when this question of unconstitutional legislative action is raised, in
such a manner as to become necessary to the determination of the pend-
ing cause, the court must decide it; and if it shall find that the statute
is in violation of the constitution, and therefore no law, it must so de-
clare, and decide the case accordingly. This is the whole rationale of
the power of the courts to adjudge statutes invalid. It is not a veto
power. It is not a supervisory power over legislation. It is simply
the power to ascertain and decide what is the law for the determination
of the cause which happens to be before the court.*
An American Institution.
This power of the judiciary to judge of the constitutional validity of
acts of legislation is an invention of the American people and an insti-
tution peculiar to our country. It is not one of the political ideas bor-
rowed from the British constitution. No such power belongs to the
English judges. It is true there are some cases in their reports, prior
to the revolution, in which the judges would appear to have asserted
X Vanhome ▼. Dorrance, 2 Dall. 304, 1 L. Ed. 891 ; Ulmer y. Lime Rock R.
Co., 98 Me. 579, 57 Atl. 1001, 66 L. R. A. 387 ; State v. McMillan, 65 Fla. 246,
45 South. 882; Montgomery v. State, 55 Fla. 97, 45 South. 879; Bonnett v.
Valuer, 136 Wis. 193, 116 N. W. 885. 17 L. R. A. (N. S.) 486. An unconstitu-
tional statute apportioning the delegates to the legislature may be declared
void by the courts, for, though the act itself is an exercise of the political
power, the question of its validity is a judicial question. Harmison y. Ballot
Oom'rs, 45 W. Va. 179, 31 S. E. 394, 42 L. R. A. 591. See ''Constitutional
Law," Dec, Dig. {Key No.) | 45; Cent. Dig. § 42.
2 Griffin's Ex*r v. Cunningham, 20 Grat. (Va.) 31. See "Constitutional Law,"
Deo, Dig. (Key No.) § jJ; Cent. Dig. { 42.
I SI) AOunDoiKO imoovflixruTioNALiTr. 67
a right to decide upon the validity of acts of parliament and to ad-
judge them void if they violated the great principles of liberty or of nat-
ural justice. Thus in Bonham's Case,' Lord Coke is reported to have
said: ''It appeareth in our books that in many cases the common law
will control acts of parliament and adjudge them to be utterly void;
for where an act of parliament is against common right and reason or
repugnant or impossible to be performed, the common law will control
it and adjudge it to be void." But a careful examination of the au-
thorities will show that these statements mean no more than that the
judges would not so construe an act of parliament as to give it an un-
just, unreasonable, or oppressive operation, if they could avoid it, and
that, to escape such consequences, they would resort even to a forced
and unnatural construction, assuming that parliament could not have
intended such a result. But it was clearly settled in England, at the
time of the American revolution, that if it was the positive will of par-
liament to enact an unjust or unreasonable law, and if that will was too
dearly expressed to admit of its being construed away, then the judges
were bound to obey it, and there was no power which could control it,
unless it were by a revolution.* Neither is there at the present day
any court on the continent of Europe which possesses the power and
authority to pronounce against the validity of an act of the national
legislature on account of its conflict with the written constitution of
the state.* So that the position of the American courts, in this regard,
• 8 Goke, llSa. And see, also. Day ▼. Savadge, Hob. 87; City of Iiondon
T. Wood, 12 Mod. 687. See ^^Consiitutimua Law,"* Dec. Dig. (Key No.) || 11-49;
Cent. Dig. || M7.
« 1 BL Coinm. 91 ; 1 Kent, Ck>mm. 447. Wlnthrop v. Lechmere, Thayer, Caa.
Coast. Law, dl, waa a caae (in 1727) in which the privy council adjudged an
act of the colony of Connecticut to be null and void, because in conflict with
the royal charter of the colony, in that it was contrary to the laws of England.
Bat this can hardly he considered as a precedent for the American doctrine,
on account of the limited nature of the legislative authority of the colony and
Its depoidait poaitlon.
• Professor Thayer, in his valuable collection of cases on constitutional law
(pp. 146-148), quoting from Ck>xe on Judicial Power, mentions a case of Qar-
bsde V. State of Bremen, in the Hanseatlc court of upper appeal. In 1875, in
which Jndgmoit was given against the validity of a law of Bremen, because
it was in contravention of the constitution of that state. It is stated that
fJie court was much influenced in this case by the writings of the jurist Von
llohl, who, in turn, based many of his views on the works of Story, Kent,
and the Federalist But this decision was expressly overruled, in 1883, by
the imperial tribunal (or supreme court) of the Carman Empire, in the case
of K. T. Dyke Board of Kiedervleland, in which the power of the judiciary to
68 CONSTBUCTJON AND INTERPRETATION OF CONSTITUTIONS. (Ch. 4
is virtually unique. It is not to be supposed, however, that this power
of our courts was created by the constitution of the United States. It
may be justified by that instrument. But there are several well-authen-
ticated instances in which the courts of the states declared against the
validity of acts of their legislatures, on account of repugnance to their
constitutions, before the federal constitution was adopted. Therefore
if we regard the power as expressly given by the federal constitution
to the federal courts, it was not an invention of the framers of that
constitution, but was in line with precedents already furnished by the
states. And if we are to consider that the federal courts claimed the
power as an implication from their constitution and office, they had
authority for the claim in the previous action of the state courts.*
The first case in which the supreme court of the United States adjudg-
pass upon the constitutional validity of statutes was categorically denied.
See, also, Krieger v. State of Bremen, in Tliayer, ubi supra. It appears that
the federal court of Switzerland may in some cases pronounce against the
validity of a cantonal law. Bryce, Am. Com. vol. 1, p. 430, note. And the su-
preme court of Hawaii may adjudge statutes unconstitutional. King t. Young
Tang, 7 Hawaii, 49. These are the only known exceptions to the general
rule, and in both these cases the idea was evidently borrowed from the Ameri-
can system.
• Among these early cases, particular attention should be directed to the
following: Bayard v. Singleton, 1 N. C. 5; Rutgers v. Waddlngton, Thayer,
Cas. Ck)nst. Law, 63 ; Com. v. Caton, 4 Call (Va.) 5 ; Bowman v. Middleton, 1
Bay (S. C.) 252 ; Byrne's Adm'rs v. Stewart's Adm'rs, 3 Desaus. (S. C.) 466 ;
Com. V. Smith, 4 Bin. (Pa.) 117 ; Trevett v. Weeden, Thayer, Cas. Const. Law,
73. In the last-named case. In 1786, the superior court of Judicature of Rhode
Island decided against the constitutlonaUty of an act of assembly which au-
thorized summary convictions in certain cases without a trial by Jury. The
Indignation of the legislature was aroused, and they summoned the Judges to
appear before them, "to render their reasons for adjudging an act of the gen-
eral assembly unconstitutional and so void." The Judges accordingly appeared,
and defended themselves with dignity, but with much vigor and learning. It
was then voted by the legislature that they were not satisfied with the rea-
sons given by the Judges, and a motion was made to dismiss the Judges from
their office. But It was shown that this could not be done except by im-
peachment "or other regular process;" and It was finally resolved that the
Judges be discharged from any further attendance upon the assembly, oa-the
ground that they were not charged with any "criminality" in rendering the
Judgment they had given. No impeachment proceedings were had, but we are
told that In the succeeding year the legislature elected a new bench of Judges,
who were more compliant to their will. See **Conetitutional Lwo^" Deo. Dig,
(Key No.) i 45; Cent. Dig. ft 42.
§ 31) AI>jnDUlNO ONOONSTITUTIONALITT. 59
cd an act of congress to be unconstitutional and void was Marbury v.
Madison/ in which the decision was against that portion of the judi-
ciary act which gave to the supreme court authority to issue writs of
mandamus to public officers. This power has not always been claimed
by the courts. There are some instances in which they have distinctly
repudiated it." But it is now fully and irrevocably settled, not only that
the power belongs to the judicial tribunals, but that they are bound
to exercise it in all proper cases.
Scope of Inquiry.
The constitutionality of a statute is to be tested, not by what has been
done under it or by the way in which it is actually being administered,
but by vrhat^he law anthnrire^ fn K<> Hnn^ 'irtfi^^ its provisions ; • and
in considering this question the court will limit itself to the particular
case presented to it and not consider whether, under different circum-
stances, the law might so operate as to be invalid.*® Further, extrane-
ous evidence is not admissible, but the inquiry will be confined to the
T 1 Crancb, 137, 2 L. Ed. 60. Marshall, 0. J., in delivering the opinion, vin-
dicated the right and duty of the judiciary with great clearness and ability.
Cooper V. Telfair, 4 Dall. 14, 1 L. Ed. 721, was an earlier case, but there,
while the court inclined to the opinion that an act In plain violation of the
constitution might be adjudged Invalid, they refused to so rule in regard to a
bill of attainder passed by the legislature of Georgia in 1782, on the ground
that there was at that time no specific provision of the constitution which for-
bade such acts, and that they must be considered as within the general scope
of legislative power unless prohibited. Bee ^^Constitutional LiPio^'* Dec, Dig,
(Key No,) if S8, 45; Cent. Dig. U S6, 42,
• Thus, in Ealcin v. Raub, 12 Serg. & R. (Pa.) 330, Judge Gibson, of Penn-
sylvania, expressed the opinion that the judiciary had no right or power to
prononnce an act of the 'legislature void for conflict with the constitution of
the state, although they were not bound to give effect to acts which were in
violation of the constitution of the United States. But twenty years later, in
NorrU r. Clymer, 2 Pa. 281, this judge admitted that he had changed his
opinion on this point, partly "from experience of the necessity of the case.*'
Bee "^ConBtUutional Law,'' Dec, Dig. (Key No.) § 45; Cent. Dig. § 42.
• Grainger v. Douglas Park Jockey Club, 148 Fed. 513, 78 C. C. A. 199;
Minneapolis Brewing Co. y. McGUlivray (C. C.) 104 Fed. 258 ; State v. Stark
Omnty, 14 N. D. 368^ 103 N. W. 913 ; City of Beatrice v. Wright, 72 Neb. GS9,
101 K W. 1039; In re Ellard, 62 Misc. Rep. 374, 114 N. Y. Supp. 827. Bee
^■Vonstitutional Law;' Dec. Dig. (Key No.) § S8; Cent. Dig. | S6.
!• Del Castillo v. McConnico, 168 U. S. 674, 18 Sup. Ct 229, 42 L. Ed. 622 ;
Clarence Tp. v. Dickinson, 151 Mich. 270, 115 N. W. 57. Compare Dexter v.
City of Boston, 176 Mass. 247, 57 N. E. 379, 79 Am. St. Rep. 306. Bee **Cof^
rtitutionul Lato;' Dec Dig. (Key No.) S| S8, 47; Cent. Dig. §i S6, ^-45.
60 C0H8TBCCTI0N AND INTBBPRBTATION OF CONSTITDTIONS. (Ch. 4
law itself and to such circumstances surrounding it as come within
the judicial cognizance of the court."
Particular Grounds of Unconstitutionality Must be Skown.
No court is at liberty to pronounce a statute unconstitutional unless
the fact that it is repugnant to or at variance with some particular des-
ignated clause or portion of the constitution is distinctly alleged and
clearlyshown," or unless it is made indubitably to appear that the stat-
ute is contrary to some one_flLjnore of thefimpliedMimitations and re-
strictions upon the power of the legislature." Nor can the spirit of
the constitution be invoked, apart from the words of the instrument, to
invalidate a statute.'*
■AME— THE COURT.
32. All oonrta bkTs tka rlsbt t« Jadce «C tlw eowrtltntliiBslltT «f a
■tetnt*. But tlisre »re a«rt»l« eases la wbitih the deolalon of
•■« oanrt, a» anoli m. qneatloB, la Uadlac »a etber eenrt*.
Considerations relating to the comparative rank of different courts,
and the effect of precedents, have given rise to the following rules :
1. Inferior courts, whether of the state or federal system, should not
undertake to adjudge against the validity of a statute, except in cases
11 Tenemeot House Depftrtment t. Moeseben, 1T9 N. T. 325, 72 N. B. 231,
TO I/. R. A. 704, 103 Am, St. Hep. 910. See "Conttltutional Law," Dec. Big.
\Eev Ko.) II 38, 47; Cent. Dig. || 55. iS-iS.
"Orlggs V. State, 3 Ga. App. 683, 60 S. E. 364; State t. Hefferoan. 28
R. I. 20, 65 Atl. 284; State t. Mlcbel, 121 La. 374, 46 South. 430; State t.
Bryan, 60 Fla. 203. 39 Soutb. 920 ; Roberta t. Evanston, 218 III. 296. 75 N. B.
923; Brady t. Uattern, 12a Iowa, IGS, 100 N. W. 358, 106 Am. St Rep. 201;
City of Atchison r. Bartbolow, i Kan. 1£4 ; Grlnege t. Times-Democrat Pub.
Co., 107 La. 121, 31 Soutb. 082 ; Scott v. Smart's BiTs, 1 Micb. 295 ; Hart v.
State, 87 M!bs. 171. 39 Soutb. 523, il2 Am. St Rep. 437; State t. Nolan, 71
Neb. 138. 98 N. W. 657; In re Brenner. 35 Misc. Rep. 212. 70 N. T. Supp. 744;
St Louis Cordage Co., 214 Mo. 08."., 113 S. W. 1108; Blackrock
& Mill. Co. V. Tlngey, 34 Utah. 3(i'j. aS Pac. 180; Rose v. State,
87 N. B. 103 ; In re LlklnB, 223 I'a. 450, 72 Atl. 858. Contra,
res, 55 Neb. 480. 70 N. W. 175. 41 L. R. A. 624. Bee "Conslitu-
Dee. Dig. (Kev Xo.) | iR; cent. Dig. M iS-^S.
. Powell, 125 Ind. 281. 25 N. E. 221. 9 L. R. A. 326; City of
Thompson, 113 Ky. 640, G8 S. W. 477. 67 L. R. A. 775. 101 Am. St.
S "Coratitutional Late." Dec. Dig. [Key No.) { 40; Cen*. DUf. | 38.
r. MasaachuBetts, 197 U. S. II, 25 Sup. Ct 358, 49 L. Ed. 643.
(tonal Late," Dec. Dig. (Key So.) i iO; Cent. Dig. | S8,
t SS) AATUDaiHa UirOONSTITDTIOMALITT. 81
where its tmconstitutioiiality is plain and unmistakable.** This rule
is based, not nnly iipnn the M«pect which is due to the legislative body,
but also upon the ccwsideration that the judgments of these courts arc
subject to review jn the higher tribunals, where any erroneous deler-
mioatioas may be corrected. Yet it is the right, and may become the
duty of Ml infeHOTTourt, in proper cases, to pass upon the validity of
acts of l^slation. Thus, a county court of a state may adjudge an
act of the state le^slature to be void for repugnance to the federal
constitution; for the judge of that court is bound by his oath to
support that constitution as the supreme law of the land.'*
8. If the court of last resort.in a state has pronounced in favor of
OT against the constitutionality of y state statute, its decision is binding
on all the inferior courts .of thc-jtate. and the question is no longer an
open one for such courts.*^
3. If the question of the validity of a statute of one state comes
Intimately before the courts of another state, such courts are at lib-
erty to determine the question for themselves. But in so doing, they
will pay great respect to the opinions of the courts of the state which
enacted the statute, if the question concerns its conformity to the consti-
tution of that state. If the question arises from an alleged repugnance
to the federal constitution or an act of congress, the court trying the
case will be bound by a decision of the United States supreme court,
i» [arlne Co. v. Stninahan (a C.) IW Fed. 428;
Htcti i. R. Co. (C. O.) 151 Fed. 604; Niagara Fire
Ihb. ed. 81S ; Sanmy v. Burrow-GlleB Lltbograpblc
Co. I V. Baker, 68 Mlac. Rep. 350, 110 N. T. Stipp.
848 ; : Coaat Line R. Co., 106 Va. 61. 55 S. B. 572.
7 L. St, Bep. 883; White v. Kendrick. 1 Brer. (S.
C.\ 4«B; LlBdale; v. Natural Carbonic Gas Co. (C. C.) 162 Fed. 954. A com-
mlMlon, Bi^poiiited by a court to determine whether or not a city ahnll buy a
U^tlDg plant and on what terms, baa no enthorlty to pass on the constltu-
tlooalltT of tbe atatnte under which it Is created. Norwich Oas & Electric
Co. T. Norwich, 76 Conn. 565. 57 .\tl. 746. See "Conitituttonal Law," Dec Dig.
{Kew y<K) H iS, iS; Cent. Dig. || it. kS.
■• Lent V. TillaoD. 140 U. S. 316, 11 Sup. Ct 82S, 35 L. Ed. 419 ; State ez
kL Wynne v. Lee, 106 la. 400, 31 South. 14. See Commonwealtb v. Kneeland,
20 Pick. (Mass.) 206, lor a statement ttiat there may be casea in which It may
become the duty even of a Jury to regard a Btatate as nugatory. Bee "Contti-
tmiMoJ Low." Dec. Dig. (Key No.) i J5; Cent. Dig. | it.
It Palmer t. Lawrence, 5 N. T. 389; Wheeler v. Rice, 4 Brewat (Pu.) 120.
fie* "CoKrtJ," Dec Dig. (Sey No) f 31; Cent. Dig. | SiS.
62 CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS. (Ch. 4
if any there be, on the same question, otherwise it will be at liberty
to exercise its own judgment.**
4. The judgment of the highest court of a state, that a statute has
been enacted in accordance with the requirements of the state consti-
tution, is conclusive upon all the courts of the United States and will
not be reviewed by them. But if the ground of invalidity urged against
the statute is that it contravenes the federal constitution or an act of
congress, the federal courts will not be bound by the decisions of the
state courts.**
5. The validity of an act of congress may be passed upon by the state
courts, until it has been settled by the supreme court of the United
States ; after that, the question is no longer open.
6. A decision of the supreme federal court, for or against the validity
of an act of congress, or for or against the validity of a state law in re-
spect to its conformity to the federal constitution or federal laws, is
binding and conclusive, until overruled, on all courts of every grade,
both state and national.**
8A1CZ^-FUI.I. BENOK.
33. It is a mlo Adopted by auiny Appellate eoiupte, tkonit^'not all, tluit
tkey will not deeide tke question of tl&e oenstitntionAlity of a
■tatnte nntU a hearing bae been bad before tbe fall benob of
Jndcee, in order tbat all tbe members of tbe eonrt may partioi-
pate in tbe deeieion*
The reasons for this rule are two: In the first place it is possible
that a judgment pronounced by less than a majority of the whole court
might be overruled by the full court when the question again arises ;
and all courts are disposed to avoid events which so seriously unsettle
the law. Secondly, the courts are inclined to defer the decision of such
questions until a full bench can be had on account of the great im-
portance of the question involved and on account of a delicacy in the
matter of setting aside a legislative act unless their full number has
!• McDowell T. Lindsay, 213 Pa. 591, 63 Atl. 130; Stoddart t. Bmith, 5
Bin. (Pa.) 355. See "Courts,'* Dec. Dig, {Key Vo,) § 95; Cent. Dig. { S29.
i» Atlantic & G. R. Co. v. Georgia, 98 U. S. 859, 25 L. Bd. 185; Sonthem |
R. Co. v. McNeill (C. C.) 155 Fed* 756. See *'Courts,'' Dec, Dig. (Key No.) i
see; Cent. Dig. § 957.
20 Snead v. Central of Georgia R. Co. (C. G.) 151 Fed. 608. See 'Vourts,'*
Dec. Dig. (Key 2fo.) {{ 9e, 97; Cent. Dig. U S27, 829-595.
8 85) ADJUDGING UKCONSTITUTIONALITT. 63
considered it.** But this rule is not imposed upon the courts by any
constitutional provision or statute. And it is sometimes impossible to
apply it. For instance, the decision in the very important case known
as the "Chicago Lake Front Case" ** was rendered by four judges out
of the nine who compose the supreme court. But that was because
two of the judges, on account of interest, took no part in the decision
of the case, and three dissented.
SAMB-HATVBE OF THE UTIGATION.
84. To imdiioe tfco oourta to pass upon tlio oonstitntionftllty of a stftt-
ntOy tkm qnostion must arise la tlM course of an aetnal and
bona flde Utication.
The judicial tribunals will decline to exercise this high office unless
it becomes necessary in order to determine the rights of parties in a
r^i ^^^ atij^^ijTrvnicftc controversv. "It never was thought that, by
means of a friendly suit, a party beaten in the legislature could trans-
fer to the courts an inquiry as to the constitutionality of the legislative
act." "
SS. A statnio irlll not bo declared nneonstttntlonal en the applioation
of a atero Tolnnteer or person whose rights it does not special-
ly affect.
«'
'It is a rule, and a very wholesome rule, that no one can take advan-
tage of the unconstitutionality of an act who has no interest in and is
not affected by it" ** For instance, the objection that a state statute
«i See People v. McDonald (Sup.) 52 N. Y. Supp. 8»8; Iowa Cent. Building
ft Loan As8*n t. Klock (Iowa) 104 N. W. 352. See ^^Constitutional Law," Dec.
Dig. {Key Vo.) %% 4S, 48; Cent. Dig. U -J2, 4$; "Courts;* Dec. Dig. (Keg No.)
U 101, 102; Cent. Dig. if 3U-S52.
»» lUlnois Cent. R, Co. y. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed.
101& See '^CourU,** Dec. Dig. (Key yo.) §| 101, 102; Cent. Dig. {§ SUS52;
"Aypeal and Error,*' Dec Dig. (Key No,) { 112S; Cent. Dig. <| U21-U27.
tt Chicago ft Q. T. R. Co. t. WeUman, 143 U. S. 339, 12 Sup. (X 400, 36 L.
Bd. 176^ Sawyer y. City of Blakely, 2 Ga. App. 169, 58 S. E. 399; People y.
Ronner, 185 N. Y. 285, 77 N. B. 1061 ; Gustayel y. State, 153 Ind. 613, 54 N.
EL 123; State y. Duncan, 1 Tenn. Cb. App. 334. See "Constitutional Law,*'
Deo. Dig. (Key No.) § 46; Cent. Dig. Si 4^^5.
»« Iroquois Transp. Co. y. De Laney Forge & Iron Co., 205 U. S. 354, 27
Suft Ct 609, 61 L. Ed. 836 ; Ballard y. Hunter, 204 U. S. 241, 27 Sup. Ct 261,
64 CON8TBUCTION AND IMTSBPBBTATION OF CONSTITUTIONS. (Ch. 4
impairs the obligation of contracts cannot be urged against it in a pro-
ceeding to which the only persons who have any contract rights to be
affected by it, if any such exist, have not been made parties. It is only
when some person attempts to resist the operation of an act claimed by
him to impair the obligation of a contract, 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.** So, again, white persons will not be heard to object that
an act under which a tax has been levied is unconstitutional because the
property of colored persons is made subject to the tax, while they are
neither allowed to vote on the question of taxation nor to participate
in the benefits for which the tax is levied.** Persons may also become
estopped from denying the constitutionality of a statute, by participat-
51 L. Ed. 461 ; Wiley ▼. Slnkler, 179 U. 9. 58, 21 Sup. Gt 17, 45 L. Ed. 84 ;
Chadwick v. Kelly, 187 U. S. 640, 23 Sup. Ct. 175. 47 L. Ed. 2d3 ; WilUamfl
V. Eggleston, 170 U. S. 304. 18 Sup. Ct. 617. 42 L. Ed. 1047 ; Red River Val.
Nat. Bank t. Craig, 181 U. S. 548. 21 Sup. Ct. 703, 45 L. Ed. 994 ; Hartford
Fire Ins. Co. v. Perkins (C. C.) 125 Fed. 502 ; W. C. Peacock & Co. v. Pratt
121 Fed. 772. 58 C. C. A. 48; C. Sclieerer & Co. y. Deming. 154 Cal. 138. 97
Pac. 155 ; People ▼. McBrlde. 234 111. 146. 84 N. E 865, 123 Am. St Rep. 82 ;
Tomlinson y. Bainaka, 163 Ind. 112, 70 N. E. 155; Thompson y. Mitchell,
133 Iowa, 527, 110 N. W. 901 ; State v. Smiley. 65 Kan. 240. 69 Pac. 199. 67
L. R. A. 903 ; Kansas City y. Union Pac. R. Co.. 59 Kan. 427. 53 Paa 468. 52
L. R. A. 321 ; Schoolcraft's Adm'r v. Louisville & N. R. Co., 92 Ky. 233, 17
S. W. 567, 14 L. R. A. 679; Ex parte Burnside, 86 Ky. 423. 6 S. W. 276; In
re Wellington. 16 Pick. (Mass.) 96, 26 Am. Dec. 631 ; New York L. Ins. Co. y.
Hardison, 199 Mass. 190, 85 N. B. 410, 127 Am. St. Rep. 476; City of St
Louis V. Shields, 52 Mo. 351 ; Greene v. State, 83 Neb. 6. 119 N. W. 6 ; St.
George y. Hardle, 147 N. C. 88, 60 S. E. 920; State v. Snow, 3 R, I. 64; State
Y. Becker, 3 S. D. 29, 51 N. W. 1018 ; Bertram v. Commonwealth. 108 Va. 902,
62 S. E. 909; State y. Braxton County Court, 60 W, Va. 339. 55 S. E. 382;*
Bonnett y. Vallier, 136 Wis. 193. 116 N. W. 885, 17 L. R. A. (N. S.) 486 ; Strange
Y. Oconto Land Co., 136 Wis. 516, 117 N. W. 1023 ; State y. Currens, 111 Wis.
431. 87 N. W. 561. 56 L. R, A. 252 ; Home SaY. Bank y. Morris (Iowa) 120 N.
W. 100. An alien has no right to require the courts of the United States
to adjudicate questions as to the constitutionality of laws enacted by con-
gress. Ex parte Lung Wing Wun (D. C.) 161 Fed. 211 ; In re Johnson's Es-
tate, 189 Cal. 532, 73 Pac. 424, 96 Am. St. Rep. IGl. See **Can8tituiional
Law,'* Dec Dig, (Key No.) i§ 41-^S; Cent. Dig. |§ 39-41.
2ft People Y. Brooklyn, F. & C. S. Ry. Co., 89 N. Y. 75; Moore y. City of
New Orleans, 32 La. Ann. 726. See ^'Constitutional Law," Dec. Dig. {Key No.)
i42; Cent. Dig. I 40.
29 Norman v. Boaz, 85 Ky. 557, 4 S. W. 316. 9 Ky. Law Rep. 127. See **Con-
stitutional Law," Dec. Dig. (Key No.) § 42; Cent. Dig. § S9.
1 86) AMUDOINO ITNCONSTITUTIONALrTT. 65
ing in Ae procurement of its passage, by acquiescing in it after its
passage, or bj accepting benefits under it, although it may be invalid
as to all other persons.*^ And an individual has no right to complain
that a law is unconstitutional after he has endeavored to take the bene-
fit of it to the injury of others.** The interest of a qualified voter in
the a4)portionment of members of the legislature, or that of a taxpayer
in the funding of the public debt, may be sufficient to entitle him to
contest the validity of a statute affecting such matters.**
SAKB-JnBCESSITT Of DECISIOIT.
Mb Thm vvMilea •£ etf«»tit»tiom»lity will met be decided vnleM it is
iaipenitiTely meee— ry to the rigkt digpoaitien. of the ease.
Courts are not eager to annul acts of the legislature. A becoming
respect for a co-ordinate branch of the government will make them
loath to adjudicate the grave question of the constitutional validity of
a statute, and they will not do so when the matters or questions pre-
sented by the record do not require it.** The decision of a case will
ST Huinblrd t. Avery, 196 U. S. 480, 25 Sup. Ct 123, 40 L. Ed. 286 ; Shepard
T. Barron, 194 U. S. 553, 24 Sup. Ct 737, 48 L. E3d. 1115 ; Grand Rapids & I.
R. Co. T. Osbom, 193 U. S. 17, 24 Sup. Ct 310, 48 L. Ed. 598 ; Pierce v. Som-
erset Ry., 171 U. S. 841, 19 Sup. Ct 84, 43 L. Bd. 316; Lamar y. Prosser,
121 Ga. 153, 48 S. E. 977; Houseworth y. Stevens, 127 Ga. 256, 56 S. B. 288;
Bttflae V. Barr. 132 Iowa, 463, 109 N. W. 920 ; Central Branch Union Pac. R.
Co. T. Smith, 23 Kan. 745 ; Louisville & N. R. Co. v. Alexander, 27 S. W. 981,
16 Ky. Law Rep. 306 ; State v. Taylor, 28 La. Ann. 460 ; Selectmen of Clinton
T. Worcester ConsoL St R. Co., 199 Mass. 279, 85 N. E. 507 ; State y. Portland
General Electric Co. (Or.) 96 Pac. 722; Ferguson y. Landram, 5 Bush (Ky.)
230, 96 Am. Dec. 350 ; State y. Cain, 78 S. C. 348, 58 S. E. 937 ; Prowett y.
Nance County (Neb.) 117 N. W. 996 ; State y. Mathls, 149 N. C. 546, 63 S. E.
99. See '^ConsiituHonal Law,** Dec Dig. (Key ^o.) { 4S; Cent. Dig. § 4i.
S8 Hansford y. Barbour, 8 A. K. Marsh. (Ky.) 515; Ross y. Lipscomb, 83
S. a 136, 65 S. E. 451. See **0<m8titutional Law,** Deo. Dig. (Key No.) | ^;
Cen$. Dig. § 41.
2« Brooks y. State, 162 Ind. 568, 70 N. E. 980 : Lynn y. Polk, 8 Lea (Tenn.)
12L Bee ^'CoMtUutional Law,** Dec. Dig. (Key No.) { 42; Cent. Dig. U S9, 40.
«• Bray r. State, 140 Ala. 172, 37 South. 250 ; Hill y. Taryer, 130 Ala. 592,
30 South. 409 : Road Imp. Dlst No. 1 y. Gloyer, 86 Ark. 231, 110 S. W. 1031 ;
Platte Land Co. y. Hubbard, 30 Colo. 40, 69 Pac. 514 ; McGill y. Osborne, 131
Ga. 541, 62 S. B. 811 ; Herring y. State, 114 Ga. 96, 39 S. E. 866 ; Southern R.
Co. y. Schlittler, 1 Ga. App. 20, 58 S. E. 59 ; White y. Sun Pub. Co., 164 Ind.
428^ 73 N. E. 890 ; Hewitt y. State, 171 lad. 273, 86 N. E. 63 ; Weir y. State,
161 Ind. 435, 68 N. E. 1023 ; Succession of Blenyenu, 106 La. 595, 31 South.
Bi«.Ooir8T.L.C3D.ED.) — 6
66 CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS. (Ch. 4
be rested on grounds which do not involve a determination as to the
validity of the statute, if there be any such in the case. It is only when
the question of the power olthe l^trklature under the limHaHons of the
constitution is the very gist and marrow of the case that the courts will
give their j^flgrnent nn ttiis pnmt. AnH if a judgment on the question
of constitutionality was not necessary to the determination of the par-
ticular case, it will usually be regarded as obiter dictum and not as con-
cluding the question. As a corollary to the foregoing rule, it may be
stated that the courts will ordinarily refuse to decide upon the consti-
tutionaljty nf ^ statute except when the decision is necessary to the
finat^ispositiomof the case. That is, they will not allow the question to
be raised, or will not determine it, upon preliminary, provisional, or
collateral proceedings, such as motions for a preliminary injunction,
motions to strike out pleadings, hearings concerning costs, or the like.*^
Nor will the courts paffj nn th^ /-^n'^^^i^^ntiffflf^^'^ of a statute which
jen repealed.**
SAME— CONSTBUOTIOir.
37. UncoiiBtitiitlonality will be Avoided, if poesiMe, hj puttins eiieli
A oenstraotion on the etAtnto as will mAke it oonf orm to tl&e
eoiuttitiitioii*
The courts will not so construe the law as to make it conflict with
the constitution, but will rather put such an interpretation upon it as
will avoid conflict with the constitution and give it the force of law if
this can be done without extravagance. They may disregard the nat-
ural and usual import of the words used, if it is possible to adopt an-
193 ; Lufkin v. Lufkln, 182 Mass. 476, 65 N. B. 840 ; Welmer v. Bunbury, 30
Mich. 201 ; Hendricks v. State, 79 Miss. 368, 30 South. 708 ; Adams v. Capital
State Bank, 74 Miss. 307, 20 South. 881 ; Burnetta v. Marcellne Coal Co., 180
Mo. 241, 79 S. W. 136; State v. King, 28 Mont. 208, 72 Pac. 657; Morse v.
Omaha, 67 Neb. 420, 93 N. W. 734 ; State v. Curler, 26 Nev. 347, 67 Pac. 1075 ;
People V. Wells, 99 App. Div. 364, 91 N. Y. Supp. 219 ; State v. Malheur County
Court, 46 Or. 519, 81 Pac. 368; State v. State Board of Canvassers, 79 S. C.
414, 60 S. E. 967; Hopson v. Murphy, 1 Tex. 314; Blanchard v. Barre, 77
Vt. 420, 60 Atl. 970 ; Rosa v. Lipscomb, 83 S. C. 136, 65 S. E. 451. See "Cartr
stitutional Law,'* Dec. Dig. (Key A'o.) § 46; Cent, Dig. §§ 48-45.
«i Deerlng v. York & C. R. Co., 31 Me. 172; Lothrop v. Stedman, 42 Conn.
583, Fed. Cas. No. 8,519. See '^Constitutional Law,'* Dec. Dig. {Key No.) { 46;
Cent. Dig. U 49-4o.
32 Doss V. Board of Comers of Mermentan Levee Dist., 117 La. 450, 41 South.
720. See ^'Constitutional Law," Dec. Dig. {Key No.) { 46; Cent. Dig. St 43-45.
§ 38) ADJUDGING UNCONSTITUTIONALITT. 6T'
Other construction, sustaining the statute, which shall not be strained
or fantastic. In so doing, they construe the act in accordance with the
presumed intention of the legislature. For the law-making body is al-
ways presumed to have acted within the scope of its powers.'*
SAME-EXEGUnmB OONSTBTTCTIOir.
38. Court* will be laJliienoedy but not bound, by a long und uniform
eonstruotion of a statute, with respect to its constitutionality,
by tbe otber branches of the soTemment.
While the qourts are todetermine for\^themselve§' all questions of
constitutionali^ Which come properly before them, yet it is proper and
usual for them to show much respect to the decisions of the executive
and legislative departments, made for their own guidance, upon the
same questions, especially when such decisions have been acquiesced
in and acted upon for a long period of time.**
»» Grenada County Sup'rs v. Brogden, 112 U. S. 261, 5 Sup. Ct. 125. 28 L.
Ed. 704 ; Parsons v. Bedford, 3 Pet. 433, 7 L. Ed. 732 ; Road Imp. Dlst. No.
1 T. Glover, 86 Ark. 231, 110 S. W. 1031 ; Chesebrough v. City & County- of San
Francisco, 153 Cal. 559, 96 Pac. 288; State v. Fountain (Del. Gen. Sess.) 69
Atl. 926; Park v. Candler, 113 Ga. 647, 39 S. E. 89; Ivey v. State, 112 Ga.
175, 37 S. E. 398; Robson v. Doyle, 191 111. 566, 61 N. B. 435; Newland v.
Marsb, 19 111. 376 ; McCleary v. Babcock, 169 Ind. 228, 82 N. B. 453 ; Smith
v. Indianapolis St. R. Co., 158 Ind. 425, 63 N. E. 849 ; Clare v. State, 68 Ind.
17 ; In re Burnette, 73 Kan. 609, 85 Pac. 575 ; Standard Oil Co. v. Common-
wealth, 119 Ky. 75, 82 9. W. 1020; Rogers v. Jacob, 88 Ky. 502, 11 S. W.
513 ; Grlnage v. Times-Democrat Pub. Co., 107 La. 121, 31 South. 082 ; Albert
▼. Gibson, 141 Mich. 698, 105 N. W. 19 ; Inkster v. Carver, 16 Mich. 484 ; Kene-
fick V. City of St. Louis, 127 Mo. 1, 29 S. W. 838 ; Cass County v. Sarpy County,
66 Neb. 473, 92 N. W. 635 ; State Water Supply Commission v. Curtis, 192 N.
Y. 319, 85 N. E. 148; Roosevelt v. Godard, 52 Barb. (N. Y.) 533; Lowery v.
Board of Graded School Trustees, 140 N. C. 33, 52 S. E. 267 ; Brown v. Gal-
veston, 97 Tex. 1, 75 S. W. 488 ; Harrison v. Thomas, 103 Va. 333, 49 S. E.
485 ; State v. Peel Splint Coal Co., 36 W. Va. 802, 15 S. E. 1000, 17 L. R. A.
385; Slack v. Jacob, 8 W. Va. 612; Townsend Gas & Electric Light Co. v.
HIU, 24 Wash. 469, 64 Pac. 778 ; Inkster v. Carver, 16 Mich. 484 ; Newland v.
Marsb, 19 111. 376; Roosevelt v. Godard, 52 Barb. (N. Y.) 533; Parsons v.
Bedford, 3 Pet 433, 7 L. Ed. 732; Grenada County Supers v. Brogden, 112
U. S. 261. 5 Sup. Ct 125, 28 L. Ed. 704 ; U. S. v. Delaware & H. Co., 213 U. S.
360, 29 Sup. Ct 527, 53 L. Ed. 836. See **8tatute8,*' Dec Dig. (Key No.) U
nJh^k; Cent. Dig. if 25.i-S15.
»• Stuart V. Laird, 1 Cranch, 299, 2 L. Ed. 115. And see Detroit City Ry.
T. Mills. 85 Mich. 634, 48 N. W. 1007 ; Johnson v. City of Great Falls, 38 Mont
68 COMSTBUCTION AND INTBBPBBTATION OF CONSTITUTIONS. (Ch. 4
lAXE-VBESUMPTIOH OF X.EOAIJTT.
80. Ev«rj pvesvatptiea la la teTor •£ ike coiistltiitioaalitj of an aet
•f ike leffislatiive.
Legislators, as well as judges, are bound to obey and support the
constitution, and it is to be understood that they have weighed the
constitutional validity of every act they pass. Hence the presumption
is always in favor of the constitutionality of a statute ; every reason-
able doubt must be resolved in favor of the statute, not against it ; and
the courts will not adjudge it invalid unless its violation of the consti-
tution is> in their indnr^"t i?hnr fO"^plrtCi ^^d i^nmictaL-aKiA ••
869, 90 Pac. 1059. See **8taiutes,** Dec. Dig. (Key No.) H 218-220; Cent. Dip.
H 294-298.
•s Ex parte Young, 209 U. S. 123, 28 Sup. Ct 441, 62 L. Ed. 714, 18 L. R. A.
(N. 8.) ^2 ; Oantwell y. Missouri, 199 U. 8. 602, 26 Sup. Ct. 749, 50 L. Ed. 329 ;
Smith y. St Louis & 8. W. Ry. €k>., 181 U. 8. 248, 21 Sup. Ct 608, 45 L. Ed.
847; United States v. Dnell, 172 U. 8. 576, 19 Sup. Ct. 286, 43 L. Ed. 559;
Logan & Bryan y. Poetal Telegraph & Cable Co. (C. C.) 157 Fed. 570 ; Spain
▼. St Louis & 8. F. R. Co. (C. C.) 151 Fed. 522; Grainger T. Douglas Park
Jockey Club, 148 Fed. 518, 78 C. C. A. 199 ; State y. Skeggs, 154 Ala. 249, 46
South. 268 ; MobUe Dry Docks Co. t. City of Mobile, 146 Ala. 198^ 40 South.
205, 3 L. R. A. (N. 8.) 822 ; Williams v. State, 85 Ark. 464, 108 8. W. 838, 122
Am. 8t Rep. 47; Arkansas, L. & G. R. Co. v. Kennedy, 84 Ark. 364^ 105 8.
W. 885 ; StUlweU y. Jackson, 77 Ark. 250, 93 8. W. 71 ; In re Goodrich's Es-
tate, 6 Cal. App. 730, 93 Pac. 121; Thomas v. Williamson, 51 Fla. 332, 40
South. 831 ; Wellmaker y. Terrell, 3 Ga. App. 791, 60 8. E. 464 ; Ex parte Gale,
14 Idaho, 761, 96 Pac. 679; Noble y. Bragaw, 12 Idaho, 265, 85 Pac. 903;
People Y. McBride, 234 111. 146, 84 N. E. 865, 123 Am. St Rep. 82 ; People y.
Rose, 203 111. 46, 67 N. E. 746 ; People y. Onahan, 170 lU. 449, 48 N. E. 1003 ;
Kraus y. Lehman, 170 Ind. 408, 83 N. E. 714 ; Smith y. Indianapolis St R.
Co., 158 Ind. 425, 63 N. E. 849 ; Eckerson y. City of Des Moines, 137 Iowa,
452, 115 N. W. 177 ; McGuire y. Chicago, B. & Q. R. Co., 131 Iowa, 340, 108
N. W. 902 ; Chesapeake Stone Co. y. Moreland, 126 Ky. 656, 31 Ky. Law Rep.
1075, 104 8. W. 762, 16 L. R. A. (N. S.) 479 ; House of Reform y. Lexington,
112 Ky. 171, 65 S. W. 350, 23 Ky. Law Rep. 1470; State y. Michel, 121 La.
374, 46 South. 430; Attorney General y. State Board of Assessors, 143 Mich.
73, 106 N. W. 698 ; Sears y. Cottrell, 5 Mich. 251 ; State y. Fort, 210 Mo. 512.
109 S. W. 737 ; Ex parte Loving, 178 Mo. 194, 77 S. W. 508 ; State y. Thomp-
son, 144 Mo. 314, 46 S. W. 191 ; Rosenbloom y. State, 64 Neb. 642, 89 N. W.
1053, 57 L. R. A. 922 ; State v. Standard Oil Co., 61 Neb. 28, 84 N. W. 413,
87 Am. St Rep. 449 ; In re Boyce, 27 Noy. 299, 75 Pac. 1, 65 L. R- A. 47 ; Seeley
Y. Stevens, 190 N. Y. 158, 82 N. E. 1095 ; Sugden v. .Partridge, 174 N. Y. 87,
66 N. E. 655 ; Kerrigan v. Force, 68 N. Y. 381 ; Tonnage Tax Cases, 62 Pa.
286; State y. McCoomer, 79 8. C. 63, 60 8. B. 237; Bon Homme County y.
S 41) AimiDOINO UMOONSTITUTIONALITr. 69
tSHOB TO JOUBHALS OF lAOISIJiTIJBB.
40l The Jttuaali of th« legi'latwre may bo rosortod to for tiho pnv-
poso of dotovmlnias whethor the aot was paasod la duo fomi
bmt ao oTldemeo will bo roooiTod to oontvadlet tbo JouraalAi
A statute may be unconstitutional for lack of compliance with the
forms prescribed by the constitution in the process of its enactment.
If it is shown to the courtthat the legislature has neglected or violat-
ed its duty in any of these particulars, the act must be pronounced in-
valid. And for this oQXpQSSxr^f^cQurt may go behind the enrolled or
printed bill and examine the journals of the two houses. But the act
will not be adjudged vo^j ^jnlPQc tli<i journals yirmatively*show a lack
of compliance with such forms.*^
MOTIVES OF UBOISIJiTUBB.
Al« Tkm motlvoo of tbo legialatiiro, in yring a partiovlav
oaaaoi'no inquired into, nor ean it be abown tbat it
owed by fmnd or bribery.
The constitutionality of a statute is a bare question of Vsgislative
powcr^and any inquiry as to the motives operating on the minds of the
legistSlors, in voting for the measure, is entirely incompetent. The
Bemdt, 15 S. D. 494, 90 N. W. 147 ; Fremont, B. & M. V. B. Go. t. Peninflrton
County (S. D.) 116 N. W. 75; Edler r. Edwards. 84 Utah, 18, 95 Pac. 867;
Young T. Salt Lake Olty, 24 Utah, 821, 67 Pac. 1066 ; Young v. Gommonwealtlt
101 Va. 853, 45 S. E. 827 ; South Morgantown v. City of Morgantown, 49 W.
Va. 729, 40 S. B. 15 ; State t. Peel Splint Coal Co., 86 W. Va. 802, 15 S. B.
lOOO, 17 L. B. A. 886 ; State v. Anson, 182 Wis. ^1, 112 N. W. 476 ; Hartford
Bridge Co. y. Union Ferry Co., 29 Conn. 210; Flint River Steamboat Co. t.
Foster, 5 6a. 194, 48 Am. Dec. 248 ; Mayor and City Council of Baltimore T.
State, 15 Md. 876; Stewart ▼. Board of Sup'ra of Polk County, 80 Iowa, 9,
1 Am. Rep. 238; LindBley y. Natural Carbonic Gas Co. (C C.) 162 Fed. 954;
People T. Nye, 9 Cal. App. 148, 98 Pac 241 ; Economic Power & Ck>nBtruction
Co. T. City of Buffalo, 128 App. Dlv. 883, 112 N. Y. Supp. 1127 ; State r. Web-
ber, 214 Ho. 272, 113 S. W. 1054 ; Hathom v. Natural Carbonic Gas Co., 60
Ml8C Rep. 341, 113 N. Y. Supp. 458. See **C<mstitutional Lwo," Deo. Dig. (Key
J^o.) i 48; Cent. Dig. § ^6.
••Presoott T. lUinoiB Canal, 19 111. 324; Common CouncU of Detroit ▼.
Board of Anesaors, 91 Micb. 78, 51 N. W. 787, 16 L. B. A. 59. Compare Kil-
gore Y. Magee, 86 Pa. 401. Bee '^Statutes," Dec. Dig. {Key No.) ^ Z8S; Cent.
Dig. 1584.
70 CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS. (Ch. 4
validity of a statute does not in the least depend on the considerations
which induced the legislature to enact it. Evidence to establish fraud,
bribery, or corruption against the members of the legislature, as a
ground for setting aside the statute, is not admissible. The courts are
not made guardians of the morals of the legislators, nor are they at
liberty to impute to them any improper motives.*^ Nor will it ever be
pfesiimed that the legislature acted unadvisedly or mistakenly. It can-
not be shown, in opposition to a statute, that the legislature failed to
investigate the subject-matter and to inform itself and to exercise its
judgment and discretion, nor that it was induced to enact the statute
by deception, false representations, or suppression of the truth.'*
8AME-POUGT OF I.EOISI.ATION.
42. A ■tatnte eaiuiot be declared void on oonsiderations Koing merely
to its policy, propriety, wisdom, or expediency.
The courts have nothing whatever to do with the policy, wisdom, ex-
pediency, or propriety of acts of the legislature. Such matters are
questions for legislative determination, but do not belong to the ju-
87 Fletcher v. Peck, 6 Cranch, 87, 3 L. Ed. 162; Grainger v. Douglas Park
Jockey Club, 148 Fed. 513, 78 C. C. A. 199 ; Hawkins v. Roberts, 122 Ala. 130,
27 South. 327 ; De Merritt v. Weldon, 154 Cal. 545, 98 Pac. 537 ; In re Smith,
143 Cal. 368, 77 Pac. 180; Odd Fellows* Cemetery Ass'n v. City & County of
San Francisco, 140 Cal. 226, 73 Pac. 987 ; Ex parte Newman, 9 Cal. 502 ; State
7. Terre Haute & T, R. Co., 166 Ind. 580, 77 N. B. 1077 ; State v. Kolsem, 130
Ind. 434, 29 N. E. 595, 14 L. R. A. 566 ; Parker v. State, 132 Ind. 419, 31 N.
B. 1114 ; State v. Fagan, 22 La. Ann. 545 ; People v. Gardner, 143 Mich. 104,
106 N. W. 541 ; JeweU v. Weed. 18 Minn. 272 (Gil. 247) ; Fenwlck v. Gill, 38
Mo. 510 ; McCarter v. City of Lexington, 80 Neb. 714, 115 N. W. 303 ; . Moore
V. West Jersey Traction Co., 62 N. J. Law, 386, 41 Atl. 946 ; Kittinger v. Buf-
falo Traction Co., 160 N. T. 377, 54 N. E. 1081 ; State v. Lindsay, 103 Tenn.
625, 53 S. W. 950 ; Williams v. Nashville, 89 Tenn. 487, 15 S. W. 364 ; Lynn
V. Polk, 8 Lea (Tenn.) 121 ; State v. Peel Splint Coal Co., 36 W. Va. 802, 15
S. E. 1000, 17 L. R. A. 385. 8ee **Con8titutional Law,** Deo, Dig, (Key No,) §
70; Cent. Dig. § ISl.
»» Cantwell v. Missouri, 199 U. S. 602, 26 Sup. Ct 749, 50 L. Ed. 329; Farm-
ers* Loan & Trust Co. v. Chicago, P. & S. R. Co. (C. C.) 39 Fed. 143 ; Steven-
son V. Colgan, 91 Cal. 651, 27 Pac. 1089, 14 L. R. A. 459, 25 Am. St. Rep. 230 ;
Hckerson v. City of Des Moines, 137 Iowa, 452, 115 N. W. 177; People v.
Calder, 153 Mich. 724, 117 N. W. 314, 126 Am. St Rep. 650 ; Flint & F. Plank
Road Co. y. WoodhuU, 25 Mich. 99, 12 Am. Rep. 233 ; St Louis & S. F. R. Co.
y. Hadley (C C.) 168 Fed. 317. See *'ComtUutional Law," Deo. Dig. (Key
No,) I 70; Cent. Dig, f 131.
§ 42) ADJUDGING UNCONSTITUTIONALITT. 71
diciary. Consequently, if a given statute does not violate any provision
of the constitution, and is within the general scope of legislative pow-
er, the courts cannot adjudge it void merely because it appears to
them to be impolitic, unjust, improper, absurd, or unreasonable. To do
so would not be an exercise of the judicial functions, but an usurpation
of legislative powers.*^ Neither can a statute be declared invalid on
the ground of its being contrary to "public policy" ; because the public
policy of a state can be found in, and is predicated upon, the constitu-
tion and laws of the state and not elsewhere, and a statute constitu-
tionally enacted gives expression to what the courts must consider the
public policy of the state without regard to prior judicial utterances.*"
t» Halter t. Nebraska, 205 U. S. 34, 27 Sup. Gt. 419, 51 L. Ed. 6d6; Angle
▼. Chicago. St P., M. & O. R. Co., 151 U. S. 1, 14 Sup. Ct 240, 38 L. Ed. 55 ;
State V. SkeggB, 154 Ala. 249, 46 South. 268 ; Spier v. Baker, 120 Cal. 370, 52
Pac. 659, 41 L. R. A. 196; Welgand v. Dfstrict of Columbia, 22 App. D. C.
559 ; Lansburgh y. District of Columbia, 11 App. D. C. 512 ; Landberg v. City
of Chicago, 237 111. 112, 86 N. E. 638» 21 L. R. A. (N. S.) 830, 127 Am. St Rep.
319 ; Pe<9le y. McBride, 234 lU. 146, 84 N. E. 865, 123 Am. St Rep. 82 ; Pitts-
burgh, C, C. & St. L. R. Co. y. Hartford, 170 Ind. 674, 85 N. B. 362, 20 L. R.
A. (N. fi.) 461 ; Merchants* Union Barb Wire Co. y. Brown, 64 Iowa, 275, 20
N. W. 434; State y. Boldea, 107 La. 116, 31 South. 393, 90 Am. St Rep. .280;
In re Opinion of Justices, 103 Me. 506, 69 Atl. 627 ; Graham y. Roberts, 200
Mafls. 152, 86 N. B. 1009 ; ReithmUler y. People, 44 Mich. 280, 6 N. W. 667 ;
Sears y. Cottrell, 5 Mich. 251 ; Bobo y. Board of Leyee Com'rs, 92 Miss. 792,
46 South. 819 ; State y. Henry. 87 Miss. 125, 40 South. 152, 5 L. R. A. (N. S.)
340 ; Eyers y. Hudson, 36 Mont 135, 92 Pac. 462 ; State y. Roberts, 74 N. H.
476, 69 AtL 722, 16 L. R. A. (N. S.) 1115 ; People y. Common Council of City
of Rochester, 50 N. Y. 525 ; People y. Draper, 15 N. Y. 532 ; State y. Ander-
son (N. D.) 118 N. W. 22; Commonwealth y. Martin, 35 Pa. -Super. Ct 241;
KlmbaU y. Grantsyille City, 19 Utah, 368, 57 Pac. 1, 45 L. R, A. 628; Point
Roberts Fishing Co. y. George & Barker Co., 28 Wash. 200, 68 Paa 438 ; Julien
y. Model Building, Loan & Inyestment Co., 116 Wis. 79, 92 N. W. 561, 61 L.
R A. 668 ; State y. Northern Pac. R. Co. (Wash.) 102 Pac. 876. See **Con8ti-
tvtional Law,*' Dec Dig. (Key No.) § 70; Cent. Dig. IS 129-1S2.
«• United States y. Trans-Missouri Freight Ass'n, 166 U. S. 290, 17 Sup. Ct
540, 41 lu EXL 1007; Langmulr y. Landes, 113 lU. App. 134; Kenneweg y.
Allegany County Com'rs, 102 Md. 119, 62 Atl. 249; De Ferranti y. Lyndmark,
30 App. D. C. 417. Bee "Constitutional Laio," Dec Dig. (Key No.) f 70; Cent.
Dig. I XSl.
72 CONSTBUCTION AND INTBBPRBTATION OF CONSTITUTIONS* (Ch. 4
SAME— HATUBAI. JUSTICE.
43. A fltatiite eam&ot be declared invalid beoavse it is opposed to the
prinoiples of natural Jnstioo or the supposed spirit of the eon-
stitntion*
It has sc»netimes been held that if a statute, in the judgment of the
court, was contrary to the principles of natural justice, or the general
spirit of the constitution, or the maxims of republican government, or
the principles of right and liberty supposed to lie at the base of all
institutions in a free country, it was the duty of the court to pronounce
it invalid.** But the prevailing opinion at the present day is that there
is no such power in the courts. The legislature of a fifat** pnccA<^c^c
the power to pass any and every law, on any and every subject, which
does not amount to an encroachment upon the province of either of the
other departments and is not in conflict WJf.^ ^^^ ^upr***^*' j^^iT^c r>f f ^t|ier
the federal or statf r^ticf^Hift/^n Consequently, one who objects to
the validity of an act of the legislature must be able to point out the
5;pprifir prnf|i}^ifinfTj *'^"*rfTBffnfi ^^ F^ft^^^^ WhlCh It Violates. ^ I f
this cannot be done, the ^rt ^^ ^^^^'^^ Natural justice, thi principles of
republican government, and the equal rights of men are supposed to be
adequately gfuarantied, in this country, by the express provisions of
the constitutions. If they are not, the constitutions are at fault ; but
that is no limitation upon the legislative power.** And the spirit of
«i Citizens* Say. ft Loan ABs*n y. Topeka, 20 Wall. 655, 22 L. Ed. 4iS5. And
see Ham y. McGlaws, 1 Bay (S. G.) 93, 98 ; People y. Board of Salem, 20 Mich.
452, 4 Am. Rep. 400. In Weldi y. Wadsworth, SO Ck>nD. 149, 79 Am. Dec. 239,
it was said: ''The power of the legislature is not unlimited. They cannot
entirely disregard the fundamental principles of the social compact Those
principles underlie all legislation, irrespective of constitutional restraints, and
if the act in question is a clear violation of them, it is our duty to hold it
aborUve and void.*' See "Constitutional Law," Deo. Dig. (Key No.) Sf 39, 40;
Cent. Dig. §§ 57. S8.
«2 Kane v. Erie R. Co., 133 Fed. 681, 67 G. C A. 653, 68 L. R. A. 788 ; Nation-
al Council, Junior Order American Mechanics y. State Council, Junior Order
United American Mechanics, 104 Va. 197, 51 S. E. 166 (affirmed 203 U. a
151, 27 Sup. Ct 46, 61 L. Ed. 132) ; Kerr y. Perry School Tp., 162 Ind. 310, 70
N. E. 246 ; Burrows y. Delta Transp. Co., 106 Mich. 582, 64 N. W. 501, 29 L.
R. A. 468 ; Viemeister y. White, 179 N. Y. 235, 72 N. E. 97, 70 L. R. A, 796,
103 Am. St Rep. 859 ; Sharpless y. Mayor of PhUadelphia, 21 Pa. 147, 59 Am.
Dec. 759; Block y. Schwartz, 27 Utah, 387, 76 Pac. 22, 65 L. R, A. 308, 101
Am. St. Rep. 971 ; State v. Peel Splint Coal Co., 36 W. Va. 802, 15 S. E. 1000,
§ 44) ADJUDOINO UNOONSTmmONALITT. 73
the constitutinn r^nnnt be apDf*^l?d ^<^ fY^^<- *»«» <*• is manifested in
theJcfier?'
SAME-PABTIAX. UHOONSTITUTIONALrnr.
44. W^are pmrt of a statute is nnconstitiitionaly but the remainder
is Talid, tlte parts will be separated, if possible, and tbat which
is eoastitutioaal will be sustained*
y 4-S»{v/j^^
It frequently happens that some parts,, features,. or provisions of a
statute are invalid, by reason of repugnancy to the constitution, while
the remainder of the act is not open to the same objection. In such
cases it is the duty of the court not to pronounce the whole statute un-
constitutional, if that can be avoided, but, rejecting the invalid portions,
to give effect and operation to the valid portions. The rule is that if
the invalid portions can be separated from the rest, and if, after their
excision, there remains a complete, intelligible, and valid statute, ca-
pable of being executed, and conforming to the general purpose and
intent of the legislature, as shown in the act, it will not be adjudged un-
constitutional in toto, but sustained to that extent.** "The constitution-
al and the unconstitutional provisions may even be contained in the same
section, and yet be perfectly distinct and separable, so that the first
may stand, though the last fall." *^ But "when the parts of a statute
are so mutually connected and dependent, as conditions, considerations,
or compensations for each other, as to warrant a belief that the legis-
lature intended them as a whole, and that, if all could not be carried
into effect, the legislature would not pass the residue independently, if
some parts are unconstitutional and void, all the provisions which are
17 li. R. A. 386 ; Slack v. Jacob, 8 W. Va. 612. See *'Cotuitttutional Law,**
Dec. Dig, {Key Jfo.) i S9; Cent, Dig. { 37.
*• Reeves r. Coming (C. C.) 51 Fed. 774 ; Porsythe y. City of Hammond
(a C.) 68 Fed. 774 ; People T. Draper. 15 N. Y. 532 ; Bertholf t. O'Reilly, 74
N. Y. 500, 30 Am. Bep. 323; State v. Wheeler, 25 Conn. 200; Pralgg v. West-
ern Paving ft Supply Co., 143 Ind. 358, 42 N. E. 750 ; People v. Richmond, 16
Colo. 274, 26 Pac. 929 ; Sawyer v. Dooley, 21 Nev. 390, 32 Pac. 437. See ''Con-
stitutional Law," Dec. Dig, (Key No,) f 40; Cent. Dig. § S8.
«« Presser v. Illinois, 116 U. S. 252, 6 Sup. Ct. 580, 29 L. Ed. 615 ; MobUe
ft O. R. Co. V. State, 29 Ala. 573 ; State v. EznicioB, 33 La. Ann. 253 ; People
T. Kenn^r, 96 N. Y. 294. See ** Statutes," Deo. Dig. {Key No,) § 64; Cent, Dig,
H 58-66, 195.
«> Com. V. Hitchings, 5 Gray (Mass.) 482. See '"Statutes," Dec Dig. (Key
Vo.) i 64; Cent. Dig. |f 58-66, 195.
74 CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS. (Ch. 4
thus dependent, conditional, or connected must fall with them." *• But
if the purpose of the statute "is to accomplish a single object only, and
some of its provisions are void, the whole must fall, unless sufficient
remains to effect the object without the aid of the invalid portion/' *^
And if the unconstitutional clause cannot be rejected without causing
the statute to enact what the legislature never intended, the whole
statute must be adjudged invalid.** ^/^ ^\/ V /v? ^7/ C o u
45* A statute wUl not be deelared imoonstitiitioiial on acooiiat of a
statement of the reasons for enaottnc it, or anytUns else,
found in the preamble, when the ohjeotion does not appear in
the hodj of the aet.*'
The preamble to a statute is an introductory clause which sets forth
the reasons which have led to the enactment, by reciting the state of
affairs intended to be changed, the evils designed to be remedied, the
advantages sought to be procured or promoted by the new law, or the
doubts as to the prior state of the law which it is meant to remove. It
is thus an exposition of the motives of the legislature, and in some
sense a key to the meaning of the terms which they have employed to
express their avowed intention. But it is not an essential part of the
statute, and is by no means found universally in modern laws. Hence
if the body of the act is free from constitutional objections, it will not
be adjudged invalid by reason of anything found in the preamble.
*• Warren t. Mayor, etc., 2 Gray (MaBS.) 84; Slanson y. City of Racine, 13
Wis. 398 ; W. U. Tel. Co. v. State, 62 Tex. 630 ; Bk^khart v. State, 6 W. Va.
515, Bee "Statutes,** Dec. Dig. {Key No.) i 6i; Cent. Dig. §S 58-66, 195.
*T People V. Cooper, 83 111. 585. Bee '"Statutes," Deo. Dig. (Key No.) f 64;
Cent. Dig. S§ 58-66, 195.
*8 Spraigue v. Thompson. 118 U. S. 90, 6 StTp/'Ct. 988. 30 L. Ed. 115. See
"Statutes," Dec. Dig. {Key No.) § 64; Cent. Dig. K 58-66, 195.
*» Lothrop V. Stedman, 42 Conn. 583, Fed. Cas. No. 8,519 ; Sutherland v. De
Leon, 1 Tex. 250, 46 Am. Dec. 100. Bee "Statutes,** Dec. Dig. {Key No.) § tlO;
Cent. Dig. | 287.
§ 47) GONsraucnoN or constitutions. 75 S
8AME-EFFEOT OF DECISION.
4S. A deeUlon asainst the eonstttntionality of a atatutey rendered hj
a eompetent eovrt in a proper case, n&akea the statute entirely
nnll and inoperatiTO so long as the decision stands,
"An unconstitutional act is not a law. It confers no rights ; it im-
poses no duties ; it affords no protection ; it creates no office. It is,
in legal contemplation, as inoperative as though it had never been pass-
ed." •• And if the statute is adjudged unconstitutional in part, that
part which is rejected will be a nullity. But in view of the fact that
courts sometimes overrule their decisions on constitutional questions,
it is necessary to qbserve that while a statute, once adjudged invalid by
the court of last resort, will continue inoperative as long as that deci-
sion is maintained, yet a later decision, sustaining the validity of the
statute, will ^ive it vitality ^roCltlLijj^c Q^ ^ts enactment, and there-
after it is to he^ tr^^atpH a*^ hnv^'^g KA^|]^o.^ricfi'Hifir.noi from the begin-
ning.** Notwithstanding some difference of opinion, the better au-
thorities hold that a repealing clause in an unconstitutional statute (re-
pealing all laws and parts of laws in conflict with it or inconsistent with
it) is equally invalid with the rest of the statute, and therefore leaves
the former laws untouched.*^*
\
OONSTBUGTION OF GONSTITTTTIONS— METHOD.
47* A eonstitvtion is not to bo interpreted on narrow or teolinioal
principles, bnt liberally and on broad general lines, in order
tbat it may aooomplisb tbe objects of its establisbment and
carry ont tbe great principles of goTcmment.
A constitution "is intended for the benefit of the people, and must
receive a liberal construction. A constitution is not to receive a tech-
»• Norton v. Shelby County, 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178.
See Rutten v. Paterson, 73 N. J. Law, 467, 64 Atl. 573. See "Constitutional
ZAiu>r Dec. Dig. {Key No.) i 49; Cent. Dig. § 47.
»i Pierce v. Pierce, 46 Ind. 86 ; McCJollnm v. McConaughy (Iowa) 119 N. W.
539. Bat an act of the legislature which was unconstitutional at the time
of its enactment will not obtain validity by a subsequent change In the con-
stitution, anthorizlng such legislation. Comstock Mill & Mln. Co. v. Allen, 21
Ner. Z2S, 31 Pac. 434. Bee "Conatitutional Law," Dec. Dig. (Key No.) §§ 24,
49; Cent. Dig. §{ 27, ^7.
•s Campan ▼. City of Detroit, 14 Mich. 276 ; Tims r. State, 26 Ala. 165. See
^Statutes,** Dec. Dig. (Key No.) | 168; Cent. Dig. | 244*
76 CONSTRUCTION AND INTERPRETATION OP CONSTITUTIONS. (Ch. 4
nical cdnstruction, like a common-law instrument or a statute. It is to
be interpreted so as to carry out the great principles of government, not
to defeat them." •• Constitutions, it is said in another case, "declare
the organic law of a state ; they deal with larger topics and are couched
in broader phrase than legislative acts or private muniments. They do
not undertake to define with minute precision in the manner of the lat-
ter, and hence their just interpretation is not always to be reached by
the application of similar methods." •* •
SAME-INTENT TO BE SOUGHT.
48. Zt ifl a Murdiiud mle in the interpretation of oonetitntions that
the inetrvnient mvet he so eonetmed as to (iTe eff eet to the in^
tention of the people, who adopted it.
40* This intention is to he eooi^ht in the eonstitntion itself* and the
apparent meaning of the words employed is to he tahen as en-
pressing it, ezeept in eases whe^ that assumption wonld lead
to ahsnrditjy amhlgnity, or eontradietien*
Where the meaning shown on the face of the words is definite and
intelligible, the courts are not at liberty to look for another meaning,
even though it would seem more probable or natural, but they must
assume that the constitution means just what it says. "Whether we are
considering an agreement between parties, a statute, or a constitution,
with a view to its interpretation, the thing we are to seek is the thought
which it expresses. To ascertain this, the first resort in all cases is to
the natural sipni^cation of th^ words employed, in the order and 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 upon the face of
the instrument is the one which alone we are at liberty to say was
Bs Morrison v. Bachert, 112 Pa. 322, 5 Atl. 739 ; State ▼. Bryan, 50 Fla.
2d3, 39 South. 929; Cumberland Telephone ft Telegraph Co. y. Hickman, 83
Ky. Law Rep. 730, 111 S. W. 311 ; Spratt t. Helena Power Transmission Co.,
37 Mont 60, 94 Pac. 631 ; State v. Millar, 21 Okl. 448, 96 Pac. 747 ; Brummitt
r. Ogden Waterworks Co., 33 Utah, 289, 93 Pac. 828; Nona MUls Co. v. Win-
gate (Tex. Civ. App.) 113 S. W. 182. But see State v. City of New Orleans,
McGloin (La.) 47. See **C<m8titutional Law,*' Dec. Dig. {Key Ifo.) §( ll-Sl;
Cent. Dig. §§ 9-17.
B4 Houseman t. Com., 100 Pa. 222. See "Conatitutional X/Oir/' Dec Dig.
(Key No.) fS ll-Bl; Cent. Dig. §f 9-17.
§§ 48-49) ooNSTBUcnoN of oonstitutioms. 77
intended to be conveyed. In such a case, there is no room for construc-
tion. That which the words declare is the meaning of the instrument,
and neither courts nor legislatures have the right to add to, or take
away f rom, that meaning." •• But if the words of the constitution,
thus taken, are devoid of meaning, or lead to an absurd conclusion, or
are contradictory of 6!her parts 6f tHC "constitution, then it cannot be
presumed that their prima facie import expresses the real intention.
And in that case, the courts are to employ the process of constructioITl
to arrive at the real intention, by taking the words in such a sense as 1
will give them a definite and sensible meaning, or reconcile them with |
the rest of the instrument. And this sense is to be determined by ^m— J
paring jthe particular clause with other parts of the constitution, by
.^^uusliHrring the various meanings, veril^cular or technical, which the <
words are capable of oeanng, and by studying the facts of contempo-
rary history and the purpose sought to be accomplished, and the bene-
fit to be secured, or the evil to be remedied, by the provision in ques-
tion."
Subsidiary Rules of Constitutional Construction^
1. The construction of a constitutional provision is to be(uniform.f*
2. In case of ambiguity, the whole constitution is to be examined,
in order to determine the meaning of any part, and the construction is
■• Newen ▼. People, 7 N. Y. 9, 07 ; City of Beardstown ▼. City of Virginia,
76 IlL S4 ; City of Springfield ▼. Edwards, 84 III. 626 ; Hills v. City of Chicago.
60 ni. 86 ; People* v. May, 9 Colo. 80, 10 Pac. 641 ; Jackson v. State, 87 Md.
191, 38 Atl. 504; Donaldson r. Harrey, 3 Har. ft McH. (Md.) 12; Western
Union Tel. Co. t. Lonlsiana Railroad Commission, 120 La. 758, 45 South. 598 ;
Manthey t. Vincent, 145 Mich. 327, 108 N. W. 667 ; Attorney General y. State
Board of Assessors, 143 Mich. 73, 106 N. W. 698 ; State y. Eldredge, 27 Utah
477, 76 Pac 337 ; Rasmussen y. Baker, 7 Wyo. 117, 50 Pac. 819, 30 L. R. A
773; Keller v. State (Tex. Cr. App.) 87 S. W. 669, 1 L. R. A. (N. S.) 489;
Powell T. Spackman, 7 Idaho, 692, 65 Pac. 508, 54 L. R. A. 378 ; Boca Mill Co.
▼. Cony, 154 Cal. 326, 97 Pac. 1117. Bee "Constitutional Law,** Dec. Dig,
{Key No.) { IS; Cent. Dig, !§ 9, 10.
■• People ▼. Potter, 47 N. Y. 375 ; Taylor y. Taylor, 10 Minn. 107 (GH. 81) ;
State V. Cook, 178 Mo. 189, 77 S. W 559 ; Smith v. Grayson County, 18 Tex.
Ciy. App. 153, 44 S. W. 921. See "Constitutional Law,'' Dec. Dig. (Key No.)
f{ ll-tl; Cent. Dig. ff 9-17.
ST These rules are here summarized from Black, Interp. Laws, 13-34, where
the reader wHI find a more full and detailed discussion of them.
•• 1 St^ry, Const | 427. This rule also means that where a word or phrase
Is used in one part of the constitution in a sense which is manifest and unmis-
takable. It is to receiye the same interpretation when used in any other part,
onleM it clearly appears from the context that a different meaning should be
78 CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS. (Ch. 4'
to be such as to give effect to the entire instrument, and not to raise any
conflict between its parts which can be avoided."*
3. A constitution should be construed with reference to, but not
overruled by, the Hnr<^rin<»Q r^ fh#> ne^mr^n law and the legislation pre-
viously existing in the state.**
4. A constitutional provision should not be construed with a retro-
spective operation, unless that is the unmistakable intention of the
words used or the obvious design of the authors.**
5. The provisions of a constitution are almost invariably manda-
tory ; it is r^piy iti *>vtr*^melY plain cases, or under the pressure of ne-
cessity that they can be construed^ asJllfirelv oireciorv.*^
6. Whatever is necessary to render effective any provision of a con-
stitution, whether the same be^ajrohibition, or a restriction, or the
grant of a power, must be deemed implied and intendfrl in th^ ftnyi-
sion itself.** ,
applied to it Epping y. Columbus, 117 6a. 263, 43 S. El 803 ; State v. Skeggs,
IM Ala. 249, 46 South. 268. See *'Constitutional Lau)," Dec Dig. {Key No,) {
U; Cent. Dig. % 11.
5» Manly v. State, 7 Md. 135; State y. Bryan, 50 Fla. 293, 39 South. 929;
State v. Hostetter, 137 Mo. 636, 39 S. W. 270, 38 L. R. A. 208, 59 Am. St. Rep.
515; Funkhouser v. Spahr, 102 Va. 306, 46 S. E, 378; Tazewell v. Herman^
108 Va. 416, 60 S. E. 767 ; State y. Harden, 62 W. Va. 313, 58 S. E. 715 ; State
V. Kyle, 8 W. Va. 711 ; State y. Parmenter, 50 Wash. 164, 96 Pac. 1047, 19 L.
R. A. (N. S.) 707; People y. Nye, 9 Cal. App. 148, 98 Pac. 241; People y.
Metz, 193 N. Y. 148, 85 N. E. 1070; Blackrock Copper Mln. & Mill. Co. y.
Tingey, 34 Utah, 369, 98 Pac. 180. See **Constitutional Late," Dec. Dig. (Keu
yo.) § 15; Cent. Dig. § 9.
«o Costigin y. Bond, 65 Md. 122, 3 Atl. 285. See ^'Constitutional Law,** Dec.
Dig. {Key No.) §§ 17, 18; Cent. Dig. §§ IS, 17.
«i Conyers v. Commissioners of Roads & Revenues, 116 Ga. 101, 42 S. E.
419; Town of Cherry Creek v. Becker, 123 N. Y. 161, 25 N. E. 309; Bronk
y. Barckley, 13 App. Div. 72, 43 N. Y. Supp. 400; Farnsworth y. Lime Rock
R. Co., 83 Me. 440, 22 AU. 373 ; State y. Dirckx, 211 Mo. 568, 111 S. W. 1 ;
Swift & Co. y. City of Ne\yport News, 105 Va. 108, 52 S. E. 821, 3 L. R. A.
(N. S.) 404 ; Arey y. Llndsey, 103 Va. 250, 48 S. E. 889 ; State y. Cox, 79 Kan.
530, 99 Pac. 1128. But see In re Gibson, 21 N. Y. 9. See "Constitutional
Law,'* Dec. Dig. {Key No.) § 23; Cent. Dig. § 20.
•2 Parker v. State, 133 Ind. 178, 33 N. E. 119, 18 L. R. A. 567; Vamey y.
Justice, 86 Ky. 596, 6 S. W. 457; People y. Lawrence, 36 Barb. (N. Y.) 177;
Carolina Grocery Co. y. Burnet, 61 S. C. 205, 39 S. E. 381, 58 L. R. A. 687 ;
State y. Burrow (Tenn.) 104 S. W. 526; Capito v. Topping, 65 W. Va. 587, 64
S. E. 845, 22 L. R. A. (N. S.) 1089. See *' Constitutional Law,'* Dec. Dig. (Key
No.) § S5; Cent. Dig. { S4\^.
«8 Endl. Interp. St. § 635; 1 Story, Const. { 430.
§§ 48-49) ooMSTRUcnoN of constitutions. 79
7. Where the constitution grants a power in general terms, the
gnnt includes «ul such particular and auxiliary powers as may be nec-
essary to make it effectual. Where the means for the exercise of a
granted power are specified, all other means are understood to be ex-
cluded. Where the means are not specified, any means may be re-
sorted to which are fairly and properly adapted to accomplish the ob-
ject of the grant of power, if they do not unnecessarily interfere with
existing interests or vested rights.**
8. The wQrd&jea^loyed in a constitution are to be taken in their
"^*lir?l H"^ pr^ptiio^- ^one^ unless they are technical legal terms, in
which case they are to be taken in their technical signification.**
9. The preamble to a constitution and the titles of its several articles
or sections may furnish some evidence of its meaning and intention,
but arguments drawn therefrom are entitled to very little weight.**
10. It is not permissible to disobey, or to construe into nothingness,
a provision of the constitution merely because it may appear to work
injustice, or to lead to harsh or obnoxious consequences or invidious
and unmerited discriminations, and still less weight should be attach-
ed to the argument from mere inconvenience.*^
11. If an ambiguity exists which cannot be cleared up by a con-
sideration of the constitution itself, then, in order to determine its
meaning and purpose, resort may be had to extraneous facts, such as
the prior state of the law, the evil to be remedied, the circumstances
of contemporary history, or the discussions of the constitutional con-
vcntion.**
•* Field V. People, 2 Scam. (111.) 79; Parks v. West (Tex.) Ill S. W. 726.
See **Constitutioual Laic:' Dec. Dig. {Key No.) §S 25-27; Cent. Dig. S§ SO, 31,
••Greencastle Tp. v. Black, 5 Ind. 557; People y. Fancher, 50 N. Y. 2&S;
Epping T. Columbus, 117 Ga. 263, 43 S. E. 803 ; Hamilton Nat. Bank v. Amer-
ican Loan & Trust Co., 66 Xeb. 67, 92 N. W. 189 ; Swift & Co. v. City of New-
port News. 105 Va. 108, 52 S. E. 821, 3 L. R. A. (N. S.) 404 ; The Huntress,
Dav. 82, Fed. Cas. No. 6,914. See '* Constitutional Law,** Dec Dig. (Key No.)
I U; Cent. Dig. % 11.
• « Houseman v. Com., 100 Pa. 222. Bee ^'Constitutional Law,'' Dec. Dig. (Key
No.) {§ 11-21; Cent. Dig. S§ 9-17.
•7 Greencastle Tp. v. Black, 5 Ind. 557 ; Weill v. Kenfield, 54 Cal. HI ; Coun-
ty of Wayne v. City of Detroit, 17 Mich. 390 ; Oakley t. Aspinwall, 3 N. Y.
547, 56S; People y. May, 9 Colo. 80, 10 Pac. 641. And see Keller y. State
(Tex. Cr. App.) 87 S. W. 669, 1 L. R. A. (N. S.) 489. See '^Constitutional Law,''
Dec Dig. (Key No.) §§ 11-21; Cent. Dig. §§ 9-17.
e» Maxwell y. Dow, 176 U. S. 581, 20 Sup. Ct. 448, 44 L. Ed. 597 ; State v.
McGousb, 118 Ala. 159, 24 South. 395 ; People y. May, 9 Ck)lo. 80, 10 Pac. 641 ;
80 OONSTBUOnOH AND INTBRPBBTATION OF OOMSTITUTIONS. (Ch. 4
12. The contemporary construction of the constitution, especially if
universally adopted, and also its practical construction, especially if ac-
quiesced in for a long period of time, are valuable aids in determining^
its meaning and intention in cases of doubt; but these aids must be
resorted to with caution and reserve, atld they can never be allowed to
abrogate, contradict, enlarge, or restrict the plain and obvious meaning
of the text."
13. Where a clause or provision in a constitution, which has received
a settled judicial construction, is adopted in the same words by the
f ramers of another constitution, it will be presumed that the construc-
tion thereof was likewise adopted.^*
State y. Foontaln (Del. Oen. Sees.) 69 Atl. 926 ; State v. Bryan, 60 Fla. 293,
39 South. 929; Bpplng t. Columbus, 117 Ga. 263, 43- S. B. 803; Toncray v.
Budge, 14 Idaho, 621, 96 Pac. 26; N. W. Halsey & Go. v. City of BeUe Flalne,
128 Iowa, 467, 104 N. W. 494 ; Mayor and City Council of Baltimore t. State,
16 Md. 376, 74 Am. Dec. 672 ; Thompson y. Kidder, 74 N. H. 89, 66 Ati. 392 ;
Commonwealth y. Balph, 111 Pa. 366, 3 Atl. 220; Cronise y. Cronlse, 64 Pa.
266 ; Sanipoli y. Pleasant Valley Coal Co., 31 Utah, 114, 86 Pac. 866 ; State y.
Norman, 16 Utah, 467, 62 Pac. 986 ; Funkhouser y. Spahr, 102 Va« 306, 46 S.
E. 378 ; Smith y. St. Paul M. ft M. R. Co., 39 Wash. 356, 81 Pac. 840, 70 L.
R. A. 1018, 109 Am. St. Rep. 889; Cooper y. Utah Light ft R. Co. (Utah)
102 Pac. 202. See '*Con9titutional Law,'' Deo. Dig. (Key No.) U 11-21; CenU
Dig. |§ 9-17.
•• Fairbank y. United States, 181 U. S. 283, 21 Sup. Ct. 648, 46 L. Ed. 862;
McPhee ft McGinty Co. y.. Union Pac. R, Co., 168 Fed. 6, 87 0. 0. A. 619;
Knight y. Shelton (C. C.) 134 Fed. 423 ; Leyln y. United States, 128 Fed. 826,
63 a C. A. 476; Griffln y. Rhoton, 85 Ark. 89, 107 S. W. 380; Board of Rail-
road Com*rs y. Market St R. Co., 132 Cal. 677, 04 Pac. 1066; City Council
of City & County of I>enver y. Board of Com'rs of Adams County, 33 Colo. 1,
77 Pac. 868; People y. May, 9 Colo. 80, 10 Pac. 641; Cook County y. Healy,
222 111. 310, 78 N. B. 623 ; City of Terre Haute v. Eyansyille ft T. H. R. Co.,
149 Ind. 174, 46 N. B. 77, 37 L. R. A. 189 ; Collins v. Henderson, 11 Bush (Ky.)
74 ; Victoria Lumber Co. y. Rives, 115 La. 9J)G. 40 South. 382 ; State y. Shel-
don, 78 Neb. 652, 111 N. W. 372 ; State v. Galusha, 74 Neb. 188» 104 N. W.
197 ; Kenny y. Hudspeth, 59 N. J. Law, 504, 37 Atl. 67 ; Wallace y. Board of
Equalization, 47 Or. 584, 86 Pac. 365 ; State y. Parler, 62 S. C. 207, 29 S. E.
651 ; State y. Tlngey, 24 Utah, 225, 67 Pac. 33 ; State y. Harden, 62 W. Va.
313, 68 S. E. 716; Boca Mill Co. y. Curry, 154 Cal. 326, 97 Pac 1117.; People
V. Nye, 9 Cal. App. 148, 98 Pac. 241 ; City of New York y. New York City Ry.
Co., 193 N. Y. 643, 86 N. R 565. See **Con8titutional Law,** Dec. Dig. {Key
No.) SS U, 15; Cent. Dig. §{ 19, 20.
70 Alabama Girls' Industrial School y. Reynolds, 143 Ala. 679, 42 South.
114 ; Alford y. Hicks, 142 Ala. 355, 38 South. 752 ; Ex parte Roundtree, 61
Ala. 42 ; Lace y. People, 43 Colo. 199, 95 Pac. 302 ; Mclntyre y. State, 170 Ind.
103, 83 N. E. 1005 ; Jenkins y. Ewln, 8 Heisk. (Tenn.) 456 ; Norfolk ft P. Trac
§§ 48-49) ooNSTBUcnoN of constitutions. 81
14. The office of a schedule to a constitution is temporary only^ and
its provisions will be understood as merely transitory, wherever that
construction is logically possible. The schedule should not be allowed
to abrogate or contradict the provisions of the permanent part of the
constitution,^^
15. The principle of stare decisis applies with special force to the
construction of constitutions, and an interpretation once deliberately
put upon the provisions of such an instrtunent should not be departed
from without grave reasons.''*
tton Co. y. Ellington's Adm'r, 108 Va. 245, 61 S. E, 779, 17 L, R. A. (N. S.) 117 ;
Nitffolk ft W. R. Ga Y. Cheatwood's Adm'x, 103 Va. 3S6, 40 S. E. 489; West-
ern Union Tel. Ck>. t. JaUan (G. G.) 169 Fed. 166. See '^Constitutional Law,**
Dee. Dig. iKep No,) | il; Cent. Dig. | 17.
ri Commonwealth v. Clark, 7 Watts & S. (Pa.) 127 ; State v. Taylor, 15 Ohio
St 137 ; State y. Galusha, 74 Neb. 188, 104 N. W. 197 ; Arle y. State (Okl.)
100 Pac. 23. Bee **Con8titutional Law,** Dec. Dig. {Key No.) U 5, 11-21; Cent.
Dig. fi 8-17.
T3 Maddox v. Graham, 2 Mete. (Ky.) 5a See '^Courts,** Dec Dig. (Key No.)
H 90, 9S; Cent. Dig. M ^^7, Srt.
BL.CoifaT.L.(3D.ED.)— 6
82 THE THREB DBPARTMENTS OF QOTBBNMENT. (Ch. 5
CHAPTEB. V.
THE THREE DEPARTMENTS OP GOVERNMEXT.
60. GlaBsification of Groyemmental Powers.
51. Separation of Governjnental Powers.
62-53. The Separation not Absolute.
54. Limitations on the Three Departments of Governmenti
55. Administrative Boards, Officers, and Commissions.
56. Political Questions.
57. Advisory Opiniox^ by the Courts.
GI.AS8IFIOATION OF OOVERNlteKTAI. POWERS.
50. The powers of soyemment are dlTided into three claMos, to witi
(a) IiegislatiTO.
(b) ZtzecvtlTo.
(e) JvdioiaL
Constitutional government is a government by law. The office of
the state is to establish and maintain laws. But law in its application
to the individual presents itself in three aspects. It is a thing to be
ordained, a thing to be administered, and a thing to be interpreted and
applied. There is, therefore, a natural threefold division of the powers
and functions of the state in the idea of government by law. First,
there is the power to ordain or prescribe the laws, which includes, inci-
dentally, the power to change, amend, or repeal any existing laws.
This is called the "legislative" power. Second, there is the power to
administer the laws, which means carrying them into practical opera-
tion and enforcing their due observance. This is denominated "execu-
tive" power. Third, there is the power to apply the laws to contests
or disputes concerning legally recognized rights or duties between the
state and private persons, or between individual litigants, in cases prop-
erly brought before the judicial tribunals, which includes the power to
ascertain what are the v^lid and binding laws of the state, and to inter-
pret and construe them, and to render authoritative judgments. This
is called "judicial" power.*
1 Further as to the nature of "legislatiye*' and **Judicial*' power and the dif-
ference between them, see Wayman y. Southard, 10 Wheat 1, 6 L. Ed. 253 :
Western Union Tel. Co. y. Myatt (0. C.) 98 Fed. 335 ; Smith y. Strother, 68
Cal. 194, 8 Pac. 852 ; Hoyey y. State, 119 Ind. 895, 21 N. B. 21 ; Leavenworth
5 51) BSPARATION OF GOVERNMENTAL POWEB& 83
tnSPABATION OF GOVERNHElfTAIi POWERS.
61. AH Aa&erlean eoiifltitvtions, state and federal, proTide for tHe
•eparatton of tHe three great powers of goTerament and their
apportionn&ent to distinet and independent departnients of the
SOTemn&ent*
It is a fundamental maxim of political science, recognized and car-
ried into effect in the federal constitution and the constitutions of all
the states, that good government and the protection of rights require
that the legislative, executive, and judicial powers should not be con-
fided to the same person or body, but should be apportioned to separate
and mutually independent departments of government.*
The idea of an apportionment of the powers of government, and
of their separation into three co-ordinate departments, is not a modem
invention. It was suggested by Aristotle in his treatise on Politics,*
and was not unfamiliar to the more advanced of the medieval jurists..
But the importance of this division of power, with the principle of clas-
sification, were never fully apprehended, in theory, until Montesquieu
gave to the world his great work on the "Spirit of the Laws." Since
then his analysis of the various powers of the state has formed part of
the accepted political doctrine of the civilized world.*
It requires a constitutional provision to effect the separation of the
three departments of government. That is to say, if it is not other-
Goanty Com'rs v. Miller, 7 Kan. 479, 12 Am. Rep. 425 ; Merchants* Exchange
V. Knott, 212 Mo. 616, 111 S. W. 665; Pennsylvania R. Co. v. Philadelphia
CooDtr. 220 Pa. 100, 68 Ati. 676, 15 L. R. A. (N. S.) 108 ; MisBOurl, K. ft T.
B. Co. V- Shannon, 100 Tex. 370, 100 S. W. 138, 10 L. R, A. (N. S.) 681 ; Wolfe
T. HcCanU, 76 Va. 876 ; State v. Harden, 62 W. Va. 313, 58 S. B. 715 ; State
T. Chittenden, 127 Wis. 468, 107 N. W. 500 ; State v. Andrae, 216 Mo. 617. 116
& W. 561. See **€oMtitutional Law,'* Dec. Dig. (Key No,) §§ 50-75; Cent.
Dig. n iS-lSS.
t SHI V. YUlage of Coming, 15 N. Y. 207, 803 ; Langenberg r. Decker, 131
Ind. 471« 81 N. E. 100, 16 L. R. A. 108 ; State v. Noble, 118 Ind. 350, 21 N. E.
244, 4 L. R. A. 101, 10 Am. St. Rep. 143 ; Taylor v. Beckham, 108 Ky. 278, 56
& W. 177, 40 Lb R. A. 258, 04 Am. St. Rep. 357. See Eckerson v. City of Des
Hoines. 137 Iowa, 452, 115 N. W. 177, holding that the requirement of the
separation of the three departments of government is applicable only to the
iostnimentallties through which the power of the state, acting directly in its
sorereign capacity, is exercised, and not to the government of municipalities*
See "CanftUutional Lato^ Dec Dig. (Key No,) $| 50-80; Cent. Dig. U 48-J47.
• Book 6, c. 11, I 1; 2 Wools. Pol. Science, 250.
« Hontesq. Esprit des Lois, liv. 11, c. 6b
84 THB THBBB DEPARTMENTS OF OOYBRNMENT. (Ch. 5
wise provided by the constitution, the power to execute and interpret
the laws, or to dispose of the executive and judicial duties, will belong
to the legislative department, as being the repository of the general
authority to enact laws.* And in American history, prior to the revo-
lution, the separation of these functions was by no means an invariable
rule.* But this important principle of civil liberty and good govern-
ment is now recognized and secured throughout the states by the pro-
visions of the constitutions. It is to be observed, however, that, as re-
gards each state, it depends upon the constitution of the state. There
is nothing in the federal constitution which forbids the legislature of a
state to exercise judicial functions.'' It should also be observed that,
when the legislature creates an administrative board or commission, it
cannot invest it with mixed legislative, judicial, and executive func-
tions; this would be contrary to the constitutional provision under
consideration.*
Independence of the Judiciary.
In making secure provision for the independence of the judicial de-
partment, the framers of the federal constitution went far beyond the
limits then established in the constitution of the mother country. Yet
the conception of the judiciary as guardians of the constitution existed
in the English system, and had been put forward as a bulwark against
the encroachments of the king or the parliament on many notable oc-
casions. More than once had the English judges resolutely set their
faces against unlawful extensions of the royal prerogative, and refused
to carry into effect the grants or decrees of the king when contrary, in
their judgment, to "the law of the land," that is, the constitution.*
s "When any of the duties or powers of one of the departments of the state
government are not disposed of, or distributed to particular officers of that de-
partment, such powers or duties are left to the disposal of the legislature."
Ross T. Whitman, 6 Cal. 361. And see Sawyer v. Dooley, 21 Nev. 390. 32 Pac.
437 ; Village of Palrvlew v. Glffee, 73 Ohio St. 183, 76 N. B. 865. See *Vof^
stitutional Law,*' Dec. Dig, (Key No.) §§ 50, 80; Cent. Dig. §§ 48, 49, 143.
« See Calder v. Bull, 2 Root (Conn.) 350. See **Con3titutional Lato," Dec, Dig.
(Key No,) § 199; Cent. Dig. { 564.
7 Satterlee v. Matthewson, 2 Pet. 380, 413, 7 L. Ed. 458; Consolidated Ren-
dering Co. V. Vermont, 207 U. S. 541, 28 Sup. Ct 178, 52 L. Ed. 327. See *'Conr
stitutional Law,*' Dec. Dig, (Key No.) § 52; Cent. Dig. § 50,
8 Western Union Tel. Co. v. Myatt (C. C.) 98 Fed. 335 ; State v. Johnson,
61 Kan. 803. 60 Pac 1068, 49 L. R. A. 662. See '^Constitutional Law," Dec. Dig.
(Key No,) §§ 52, 61; Cent. Dig. §{ 50, 109-101.
• Among the cases of this kind to which the attention of the student should
be particularly directed are the following: In re Cavendish, 1 And. 152 ; Darcy
§ 54) LUIITATIOlf 8 ON THBEB DBPABTMBKT8 OV OOYBBNMBNT. 86
The American doctrine is that the judicial department is an independ-
ent, co-ordinate branch of the government, neither superior, inferior,
nor ancillary to either of the others. It is not to be controlled or dictat-
ed to by the legislature. Nor, on the other hand, in the exercise of
such powers as are involved in adjudging the unconstitutionality of a
statute, does it assume any supervisory authority or control over the
legislative department. It is inherently the weakest of all, but is sus-
tained by the public appreciation of the need of independent tribunals
and the public confidence in the judges.^^
THE SEPARATION NOT ABSOI.IJTE.
52. !%• aeparatloa of the three departmeati of soTemmeat in m Ben-
eral prlneiple, but not a rule of absolute ezeliieloii.
63. l%e eoaetitiitioiis, in a lla&ited aiamber of eases, proTlde for, or
allow of, the exerelee by caeb department of powers tbeoret-
leally beloaKinB to tbe others, beeanse
Ca) Eaeh department possesses auxiliary powers necessary to its own
maintenanee and eflleieney.ii
Cb> A blendinc of governmental poxrers permits eaeh department to
aet as a eheek npon the arbitrary or impolitie aetion of the
others.is
Co> Certain powers are of a mined or composite natnroy or not die-
tinetly assignable to either department.
UMITATIONB ON THE THREE DEPARTMENTS OP GOVERNMENT.
54. The principle of the separation of the three departntents of gor-
lent imposes npon eaeh the limitation that it mnst not
the p<iwers nor encroach npon the Jnriadiction of either
of the others.
T. Allen (Case of Monopolies), Moore, 671 ; Case of Ship-Money, 3 How. St. Tr.
825 ; Case of Proclamations, 12 Coke, 74 ; Thomas y. Sorrell, Vaughan, 330 ;
Bates' Case, 2 How. St. Tr. 371. Compare Godden y. Hales, 2 Show. 475. See
^'CofuiUutiorua Law," Dec, Dig. (Key No,) i§ 51-^7, 78-SO; Cent. Dig. i§ 5a-85,
140, 142-147.
10 United States t. Lee, 106 U. S. 196, 223, 1 Sup. Ct. 240, 27 L. Ed. 171. See
•*Constitutional Law," Dec, Dig. {Key No.) i§ 51^7, 67-75, 78^0; Cent. Dig.
H 50-85, 12S-138, 140, 142-147.
11 State Y. Hyde, 121 Ind. 20, 22 N. E. 644 ; Flint & F. Plank Road Co. y.
WoodhQll, 25 Mich. 99, 12 Am. Rep. 233. See "Constitutional Law," Dec. Dig.
(JKey No.) If 50-80; Cent, Dig, if 48-147,
12 Trustee of Village of Saratoga Springs y. Saratoga Gas, Electric Light
Jk Power Co., 191 N. Y. 123, 83 N. E. 696, 18 L. R. A. (N. S.) 713, where It 1b
86 THE THBEB DEPARTMENTS OF GOVERNMENT. (Ch. 5
Constitutional Provisions.
As the rule, it may be said that the American state constitutions now
divide the powers of government, and provide that no person or body
belonging to one branch shall exercise powers or functions belonging to
the others. But even in the absence of such an explicit declaration, the
creation of the several departments and the description of their respec-
tive powers would be sufficient to secure each against encroachments by
the others. Thus, the federal constitution declares that "all legislative
powers herein granted shall be vested in a congress of the United
States"; that "the executive power shall be vested in a President";
and that "the judicial power of the, United States shall be vested in
one supreme court and in such inferior courts as congress may from
time to time ordain and establish." By the first of these provisions the
President and the courts are prevented from making laws. By the
second, congress and the courts are forbidden to usurp the functions
of the executive. By the third, the courts would be justified in declar-
ing invalid any act of congress or act or rule of the executive depart-
ment which should amount to an attempted exercise of judicial power.
Limitations on Legislative Power — As Respects the Executive.
The legislature cannot lawfully usurp any of the functions confided
by the constitution to the executive department. Thus, it is the gen-
erally accepted doctrine that appointment to office is an executive func-
tion, which cannot be taken away from that department by the legis-
lative branch,^' although both the legislature and the courts may fill
stated that the true meaning of the constitutional division of governmental
power is that the whole power of one of the three departments of government
shall not be exercised by the same hands which possess the whole power of
either of the other departments. And see Stanton v. Board of Sup'rs of Essex
County, 191 N. Y. 428, 84 N. E. 380 ; State v. Railroad Commission, 52 Wash.
17, 100 Pac. 179. Bee ''Constitutional Law," Dec. Dig. (Key No.) U 50-80;
Vent. Dig. §i 48-JlJi7.
18 State V. Hyde, 121 Ind. 20, 22 N. E. 644; Wood v. United States, 15 Ct.
CI. 151 ; Pratt v. Breckinridge, 112 Ky. 1, 65 S. W. 136, 23 Ky. Law Rep. 1356 ;
Sweeney v. Coulter, 109 Ky. 205, 58 S. W. 7S4, 22 Ky. Law Rep. 885 ; State v.
Washburn, 167 Mo. 680, 67 S. W. 592, 90 Am. St. Rep. 430 ; In re Branch, 70
N. J. Law, 537, 57 Atl. 431. But there are some cases holding that the power
of appointment to office is not necessarily or exclusively an executive function,
and that it may therefore be conferred by statute on the legislature itself.
SchoUe V. State, 90 Md. 729, 46 Atl. 326, 50 L. R. A. 411 ; Cuuningham v.
Sprinkle, 124 N. C. 638, 33 S. E. 138; In re Campbell's Registration, 197 Pa.
581, 47 Atl. 860 ; Com'rs of Sinking Fund v. George, 104 Ky. 260, 47 S. W. 779,
84 Am. St Rep. 454 ; People v. Freeman, 80 Cal. 233, 22 Pac. 173, 13 Am. St.
§ 54) UMITATIONS ON THREE DEPABTMENTS OF GOVERNMENT. 87
such offices as arc incidental to the performance of their own prescribed
daties. The legislature may provide by law for the appointment of
all officers not provided for in the constitution, but the appointing pow-
er must be lodged somewhere within the executive department.^* And
for the same reason an act of the legfislature granting a pardon or re-
prieve (where the pardoning power is vested by the constitution in the
executive), or remitting a fine, or authorizing courts to suspend their
sentences, would be unconstitutional.^* But a statute giving to prison-
ers certain deductions from their term of imprisonment for good con-
duct does not infringe upon the power of the executive to grant par-
dons nor upon that of the courts to sentence prisoners;^* and the
same is true of the "indeterminate sentence" laws now in force in sev-
eral of the states.*^ But any attempt on the part of the legislature to
impose upon the members of the executive department powers or du-
ties more properly belonging to the legislature itself or to the courts
would be invalid.
Same — As Respects the Judiciary.
Any act of the legislature which should undertake to determine ques-
tions of law or fact, as affecting the rights of persons or property prop-
erly the subject of litigation, would be judicial in its character and
therefore invalid.** But an election contest is of statutory origin and
Rep. 122. And see Mayor, etc., of Baltimore r. State, 15 Md. 376, 74 Am. Dec.
572. See ^^Constitutional Law,** Dec, Dig. {Key No,) i 68; Cent, Dig. § 88,
14 aty of BvansyiUe y. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. d3. See
'VimttUutional Law," Dec. Dig. {Key No,) | 68; Cent, Dig. S 88,
15 Haley t. Clark, 26 Ala. 439; Ogletree r. Dozier, 59 Oa. 800; Butler r.
SUte, 97 Ind. 373. See The Lanra, 114 U. S. 411, 5 Sup. Ot 881, 29 L. Ed.
147. Compare Haul y. People, 198 111. 258, 64 N. B. 1106. See '*Gon8titutional
Law," Dec. Dig. (Key No,) § 68; Cent. Dig, | 87.
!• Ex parte Wadlelgh, 82 Cal. 518, 23 Pac. 190; Flte v. State, 114 Tenn. 646,
88 & W. 941, 1 L. R. A. (N. S.) 520. See "Constitutional Law," Dec. Dig, (Key
No.) i 68; Cent. Dig. § 87.
iT MUler Y. State, 149 Ind. 607, 49 N. E. 894, 40 L. R. A. 109; State y. Ste-
pbenson, 69 Kan. 405, 76 Pac. 905, 105 Am. St Rep. 171 ; State y. Page, 60
Kan. 664, 57 Pac 514 ; People y. Cook, 147 Mich. 127, 110 N. W. 514 ; People
T. liadden, 120 App. DIy. 338, 106 N. Y. Supp. 554. See "Constitutional Law,**
Dec. Dig. (Key No,) | 68; Cent, Dig, S 87.
>• Ponder y. Graham, 4 Fla. 23; Commonwealth t. liSsez Co., 18 Gray
(ICaas.) 253; King y. President, etc., of Dedham Bank, 15 Mass. 447, 8 Am.
Dec: iig Thas, for example, to determine that a deed la conditional and that
there has be&n a breach of the condition and to enforce a forfeiture ia a judi-
cial functioii, not legislatlYe. Board of Education y. Bakewell, 122 III. 839,
88 THB THBBB DBPABTMBNT8 OF OOVBRNMBNT. (Ch. 5
within the control of the political department, and the manner of con-
ducting it and of determining the questions raised is within the control
of the legislature.** So also, an inquiry by the legislature into the af-
fairs of a corporation, with reference to a repeal of its charter, is not
a judicial act.^®
The legislature cannot lawfully direct the courts as to what judg-
ments they shall enter in given cases or classes of cases, or what the
judgment shall be when the court is equally divided in opinion.** And
when litigation has proceeded to a judgment which determines the con-
troversy on the merits, it is beyond the power of the legislature to alter
or control ; ** hence that body cannot vacate or annul a final judgment,
nor in any way invalidate it or set it aside, nor empower the court to do
so,*' nor grant a new trial nor an appeal or writ of error.** Neither
10 N. E. 378. So the legislature cannot enact that money appropriated to pay
the salary of a state officer shall be paid to one of two adverse claimants of
the office (State v. Carr, 129 Ind. 44, 28 N. E. 88, 13 L. R. A. 177, 28 Am. St
Rep. 163), nor assume to ascertain and fix the amount due to a creditor of the
state (McLaughlin v. Charleston County Com'rs, 7 S. 0. 375). So the determina-
tion of what is Just compensation for private property when taken for public
use is a judicial act. Rich v. City of Chicago, 59 lU. 286. But it seems that
the legislature may grant a divorce, unless restrained by the constitution, with-
out encroaching on the province of the Judiciary. 1 Blsh. Mar. & Div. U 68t^
686. See *'Con8tituti<mal Law," Dec. Dig. (Key No.) §§ 51-57; Cent. Dig.
f § 50-85.
i» Toncray v. Budge, 14 Idaho, 621, 95 Pac. 26. See ^VonstituHonal Law,"*
Dec. Dig. {Key No.) i 80.
so Lothrop y. Stedman, 42 Conn. 583, 13 Blatchf. 134, Fed. (3a8. No. 8,519.
3ut see Flint & F. Plank Road Co. y. Woodhull, 25 Mich. 99, 12 Am. Rep. 233.
See ^'Constitutional Law," Dec. Dig. (Key No.) i| 51-57; Cent. Dig. §i 50-85.
31 Northern y. Barnes, 2 Lea (Tenn.) 603. See ^'Constitutional Law," Dec
Dig. {Key No,) § 55; Cent. Dig. § 60.
2 2 Martin v. South Salem Land Co., 94 Va. 28, 26 Sl B. 591. See ^Vonstitu-
tional Law," Dec. Dig. {Key No.) | 55; Cent. Dig. i 67.
28 Central of Georgia R. Co. v. Alabama Railroad Commission (C. C.) 161
Fed. 925 ; State v. New York, N. H. & H. R. Co., 71 Conn. 43. 40 Atl. 925 ;
Roberts v. State, 160 N. Y. 217, 54 N. E. 678; Ratcliffe v. Anderson, 31 Grat
(Va.) 105, 31 Am. Rep. 716 ; De Chastellux v. Falrchild, 15 Pa. 18, 53 Am. Dec.
570; Miller v. State, 8 GUI (Md.) 145. See ''Constitutional Law," Deo. Dig.
{Key No.) S 55; Cent. Dig. i 67.
2* State v. Flint, 61 Minn. 539, 63 N. W. 1113 ; McCabe v. Emerson, 18 Pa.
Ill ; City of Aurora y. Schoeberleln, 230 111. 496, 82 N. E. 860 ; In re Hand-
ley's Estate, 15 Utah, 212, 49 Pac. 829, 62 Am. St. Rep. 926 ; Peerce v. Kitz-
miller, 19 W. Va. 564. See "Constitutional Law," Dec. Dig. {Key No.) | 55;
Cent. Dig. S 69.
i M) lhutations on thbeb dbpabtmbnts of oovbbnmbnt. 89
is it within the province of the legislature to declare, by a statute, that
a previous act of its own was valid and constitutional, nor to declare
that things done and created under a previous unconstitutional statute
shall nevertheless be regarded as legal.*" But the legislature may re-
troactively validate a contract or other transaction which has been ad-
judged invalid by the courts, provided the curative statute relates only
to matters which the legislature might have authorized or dispensed
with in the first instance.**
Some — Expository Statutes.
Expository statutes, the office of which is to declare what shall be
\ taken to be the true meaning and intent of a law already in f or^e, are
jvalid if they are to apply only to controversies thereafter arising ; but
jin so far as they are intended to have a retrospective operation, that is
Ian unlawful assumption of judicial power and invalid.*^
Some — Rules of Evidence.
The legislature of a state has control over the rules of evidence to be
foDowed in its courts, so far as concerns such matters as the competen-
cy of witnesses and the burden of proof, and the determination of what
SB Bartlett t. State, 73 Ohio St. 54, 75 N. E. d39; In re County Seat of La
Fayette County, 2 Chand. (Wis.) 212. See '^Constitutional Lata," Dec. Dig. (Key
No.) f 55; Cent. Dig. § 89.
f Steele County v. Erskine, 08 Fed. 215, 39 0. C. A. 173 ; Steger t. Travel-
ing Men's Building & Loan Ass'n, 208 111. 236, 70 N. E. 236, 100 Am. St. Rep.
225 : Schneck y. aty of JetrersonTille, 152 Ind. 204, 52 N. E. 212. See "Consti-
tuiUmal Law," Dec Dig. (Key No.) | 55; Cent. Dig. U S6, 10, 83.
ST Koehkonong ▼. Burton, 104 U. S. 668, 26 L. Ed. 886; Gorman t. Sinking
Fund Com'rs (C. C.) 25 Fed. 647; Singer Mfg. Co. v. McCoUock (C. C.) 24 Fed.
667; Lambertson ▼. Hogan, 2 Pa. 22; Greenough t. Greenougb, 11 Pa. 489, 51
Am. Dec. 567; Reiser y. William Tell Saving Fund Ass'n, 39 Pa. 137; Todd v.
Clapp, 118 Mass. 495 ; Shallow y. City of Salem, 136 Mass. 136 ; Dash y. Van
Klee<A, 7 Johns. (N. Y.) 477, 5 Am. Dec. 291 ; People v. Board of Sup'rs of City
and County of New York, 16 N. Y. 424 ; Lincoln Bidg. & Sav. Ass'n v. Graham,
7 Neb. 173 ; Kelsey y. Kendall, 48 V t 24 ; McNichol v. United States Mercan-
tile Reporting Agency, 74 Mo. 457; McManning v. Farrar, 46 Mo. 376; De-
qntndre y. Williams, 31 Ind. 444 ; James v. Rowland, 52 Md. 462 ; Lindsay v.
United States Savings & Loan Ass'n, 120 Ala. 156, 24 South. 171, 42 L. R. A.
783 ; People v. Kipley, 171 111. 44, 49 N. E. 229, 41 L. R. A. 775 ; Forster v.
Forster, 129 Mass. 559 ; City of Cambridge v. City of Boston, 130 Mass. 357 ;
Gets y. Bmbaker, 25 Pa. Super. Ct 303 ; Friend v. Levy, 76 Ohio St. 26, 80 N.
E. 1086; In re Handley's Estate, 15 Utah, 212, 49 Pac. 829, 62 Am. St. Rep.
926; Welsberg y. Weisberg, 112 App. Dlv. 231, 98 N. Y. Supp. 260. See "Con-
ttiimtioncl Lancr Dec. Dig. (Key Ao.) | 55; Cent. Dig. S 51; ** Statutes," Dec
Dig. (Key No.) f 269; Cent. Dig. | S6B.
90 THE THREE DEPARTMENTS OF GOVERNMENT. (Ch. 5
shall constitute prima facie evidence in given classes of cases;** but
it has no power to make any document (such as a tax deed or a bill of
lading) or any set of circumstances conclusive evidence in respect to
the merits of the controversy in which it appears, for that would be an
unlawful invasion of the province of the courts.**
Same — Power to Punish for Contempts.
The power to punish for contempts is inherent in all courts of rec-
ord and exists independently of statutes; and while reasonable stat-
utory regulations touching the exercise of this power are valid, it can-
not be taken away altogether or so far abridged by the legislature as to
leave .the courts without proper and effective means of protecting their
dignity and authority and enforcing their lawful orders.'^ A stat-
ute purporting to give the power to punish for contempts to a notary
public or the mayor of a city or other ministerial officer is invalid be-
cause it attempts to confer judicial powers on such officers.*^
28 State V. Thomas, 144 Ala. 77, 40 South. 271, 2 L. R. A. (N. S.) 1011, 113
Am. St. Rep. 17 ; Johnson County Sav. Bank v. Walker, 79 Conn. 348, 65 Atl,
132 ; Banks v. State, 124 Ga. 15, 52 S. B. 74, 2 L. R. A. (N. S.) 1007 ; Brady
v. Carteret Realty Co., 72 N. J. Eq. 904, 67 Atl. 606 ; State v. Dowdy, 145 N.
C. 432, 58 S. E. 1002. See ^^Constitutional Law^ Dec. Dig. {Key No.) | 55;
Cent. Dig. % 59.
«»Callanan v. Hurley, 93 U. S. 387, 23 L. Ed. 931; McCready v. Sexton,
29 Iowa, 356, 4 Am. Rep. 214; Kelly v. Herrall (C. C.) 20 Fed. 364; E}nslgn v.
Barse, 107 N. Y. 329, 14 N. E. 400 ; People v. Rose, 207 111. 352, 69 N. B. 762 ;
Missouri, K. ft T. R. Co. v. Simonson, 64 Kan. 802, 68 Pac. 653, 57 L. R. A.
765, 91 Am. St. Rep. 248 ; Wilson v. Wood, 10 Okl. 279. 61 Pac. 1045 ; Petersllie
▼. McLachlln (Kan.) 101 Pac. 1014. See *Von8titutional Law,'' Dec. Dig. (Key
No.) I 55; Cent. Dig. 9 59.
«o Ford V. State, 69 Ark. 550, 64 S. W. 879 ; Wyatt v. People, 17 Colo. 252, 28
Pac. 961 ; Bradley y. State, 111 Ga. 168, 36 S. E. 630, 50 L. R. A. 691, 78 Am.
St. Rep. 157; Anderson y. Indianapolis Drop Forging Co., 34 Ind. App. 100,
72 N. B. 277 ; Drady v. Polk County District Court, 126 Iowa, 345, 102 N. W.
115 ; State y. Thomas, 74 Kan. 360, 86 Pac. 499 ; State y. Shepherd, 177 Mo.
205, 76 S. W. 79, 99 Am. St. Rep. 624 ; State v. Clancy, 30 Mont. 193, 76 Pac.
10; Ex parte MeCown, 139 N. C. 95, 51 S. E. 957, 2 L. R. A. (N. S.) 603; Hale
Y. State, 55 Ohio St 210, 45 N. B. 199, 36 L. R. A. 254, 60 Am. St Rep. 691 ;
Smith Y. Speed, 11 Okl. 95, 66 Pac. 511, 55 L. R. A. 402 ; Carter y. Common-
wealth, 96 Va. 791, 32 S. B. 780, 45 L. R. A. 310. See ^^Constitutional Loio,"
Dec. Dig. (Key No.) § 52; Cent. Dig. S 84-
»i Burns y. Superior Court, 140 Cal. 11, 73 Pac. 597; In re Huron, 58 Kan.
152, 48 Pac. 574, 36 L. R. A. 822; 62 Am. St Rep. 614 ; Roberts y. Hadcney,
109 Ky. 265, 58 S. W. 810, 22 Ky. Law Rep. 975. See **Con8tUiUional Law,**
Deo. Dig. (Key No.) { 52; Cent. Dig. { 8i,
iS 54) LIMITATIONS ON THREE DEPARTMENTS OF OOYERNMENT. 91
Limitations on Executive Power.
It is not competent for the executive officers of the government to
assume any share in the making of laws. Their business is merely to
enforce the laws.**
Aside from the few cases in which the executive is charged with
quasi- judicial powers (as in the instance of his authority to grant par-
dons), the independence of the judicial department requires that it
should be free from his control, authority, or influence. It is his duty
to execute the judgments and sentences of the courts. He cannot sus-
pend the operations of the tribunals in their regular duty of adminis-
tering the laws nor supersede their authority, unless in case of war, or,
to a limited extent, by a declaration of martial law, nor has he the pow-
er, under our constitutions generally, to remove the judges from their
office. The chief executive of a state or of the nation has the right, and
it is his duty, in considering a legislative bill awaiting his approval, to
judge for himself as to its constitutional validity, and especially where
its tendency is to encroach upon his own powers. But when once the
measure has been enacted as a law, with or without his assent, he ought
to assume that it is in accordance with the constitution and proceed to
enforce it. And when the validity of the act has been passed upon
by the courts, the executive is as much bound by their decision as any
private citizen. It would be a gross trespass upon the functions of
the judicial department if he should attempt to enforce a law which
they had pronounced invalid, or refuse to execute a statute which had
passed their scrutiny, in accordance with his private judgment.
It is also a limitation on the executive power that no officer of that
department should be charged with duties or invested with functions
which properly belong to the judiciary. But it is not incompetent to
provide in a statute that charges of its violation shall be heard and
determined in the first instance by an executive officer where an ap-
peal to the courts is given.** And there is no violation of the consti-
tution in providing for a trial or hearing before an executive officer in
ss The governor of an English colony has not, by virtue of hia appointment,
the aoverefgn authority delegated to him, and an act done by him, legislative
In its nature, on his own authority, unauthorized either by his eonunission, or
expressly or Impliedly by any instructions, is not equivalent to such an act
being done by the crown itself, and is not valid. Cameron y. Kyte, 3 Knapp,
332. See "ConetUutional Law,** Dec Dig. (Key No.) if 7^, 77; Cent, Dig, §§
«s Niagara Fire Ins. Co. v. Cornell (C. C.) 110 Fed. 816. See ''Constitutional
Lawr Dec Dig. (Key No.) { 80; Cent. Dig. { US.
92 THB THBBB DBPABTMBNTS OF GOVBRNMBNT. (Ch. 5
regard to such matters as the removal of public officers,** or the grant
and revocation of licenses,*" or in authorizing the governor to fix a
day for the execution of the sentence in a criminal case when for any
reason it is not carried out on the day set by the court,* • or in au-
thorizing clerks of courts, in vacation, to issue warrants of arrest and
to admit to bail in misdemeanor cases. *^
Limitations on Judicial Power — As Respects the Legislature.
The judicial department is not to make the law, but to interpret and
administer it. Nevertheless it is well known that much of the law
actually administered in our courts does not owe its existence to legis-
lative enactment, or even to the adoption of the common law, but to
the interpretations of the courts, to their enforcement of custom, to the
growth of lines of precedents, and to the development of the system
of equity. But the gradual formation of this body of law, called "case-
law" or "judge-made law," is not regarded as an infraction of the
principle under consideration, or as an usurpation of legislative power
by the courts. But as regards statutes, not unconstitutional, it is the
plain duty of the courts to apply them as they find them.** For in-
stance, the correctness or incorrectness of a legislative opinion on
which an act is founded is not a question within the province of .the
courts to determine ; they must assume the fact to be as the legislature
states or assumes it.**
»* State V. Wells, 210 Mo. 601, 109 S. W. 758. And see In re Hertle, 120
App. DIv. 717, 105 N. Y. Supp. 765. See *'Con8titutional Law,'* Deo. Dig. (Key
No.) § 80; Cent. Dig. i UO.
»B Stone V. Fritts, 169 Ind. 361, 82 N. B. 792, 15 L. R. A. (N. S.) 1147. See
"Constitutional Law,** Dec. Dig. (Key No.) f| 76-80; Cent. Dig. ii IS^-W.
»• Bullitt V. Sturgeon, 127 Ky. 332, 105 S. W. 468, 32 Ky. Law Rep. 215, 14
L. R. A. (N. S.) 26a See ^'Constitutional Law,** Dec. Dig. {Key No.) SS «^, 80;
Cent. Dig. |§ 30, US-W.
•7 In re Slebert, 61 Kan. 112, 58 Pac. 971. See "Constitutional Law,** Deo.
Dig. (Key No.) | 80; Cent. Dig. § U6.
88 Kelly V. Cowan, 49 Wash. 606, 96 Pac. 152; State v. Hageman, 123 La.
802, 49 South. 530. Judicial amendment of a statute, made by interpolating
or adding words thereto which create a county would unlawfully invade the
functions of the legislature, although the court may believe, from reading
the statute, that the legislature Intended to create such a county. Holmberg
V. Jones, 7 Idaho, 752, 65 Pac. 563. See "Constitutional Law,** Dec. Dig.
{Key No.) i 70; Cent. Dig. |§ 129-132, 137.
8 » People V. Lawrence, 36 Barb. (N. Y.) 177; Tyson v. Washington County,
78 Neb. 211, 110 N. W. 634, 12 L. R, A. (N. S.) 350 ; Kadderly v. City of Port-
land, 44 Or. 118, 74 Pac. 710. See "ConstUutional Law,** Dec Dig. [Key No.)
§ 70; Cent. Dig. jf 131.
§ 54) UMITATION8 ON THBBS DEPARTMENTS OF OOYSBNHBNT. 93
Further, the courts have no authority or control over the legislature
in respect to the holding of its sessions,** or the discipline or expul-
sion of a member of the legislative body ; *^ neither can they lawfully
enjoin the passage of a statute or ordinance.**
Another application of the main rule teaches us that legislative pow-
ers cannot be imposed upon the judicial department, nor can the judges
be charged with nonjudicial duties.** Thus it is not competent to vest
the courts with power as to including or excluding territory from the
limits of cities ; ** or to require them to supervise the plan or construc-
tion of street railways or telephone lines in the streets of municipali-
ties; *• or to fix rates to be charged by public service corporations; *•
or to fix the monthly salary of a court officer.*^
Same — Levy and Collection of Taxes,
Within constitutional limits the power of the legislature in matters
of taxation is supreme,** and its action cannot be revised or annulled
«• French v. State Senate, 146 Cal. 604, 80 Pac. 1031, 69 L. R. A. 556. See
^^Conetitutionai Law,** Dec. Dig. {Key No,) § 70; Cent. Dig. i 129.
«i Frrach V. State Senate, 146 Cal. 604, 80 Pac. 1031, 69 L. R. A. 556. See
"^CoMtitutUmal Law,** Dec. Dig. {Key No.) § 70; Cent. Dig. § 129.
«2 Missouri & K. I. R. Co. v. Olathe (C. C.) 156 Fed. 624. See State v. Gates,
IflO Mo. 640. 89 S. W. 88J, 2 r^ R. A. (N. S.) 152. See "Injunction,** Dec. Dig.
{Key No.) 8 54; Cent. Dig. | 154; "Constitutional Law,** Dec. Dig. (Key No.)
i 70; Cent. Dig. ^ 129.
4» Commonwealth v. Collier, 213 Pa. 138, 62 Atl. 567. See Dally Register
Printing A Publishing Co. v. City of New York (Sup.) 3 N. Y. Supp. 669 (Judges
may be authorized and required to designate newspapers for the publication of
court calendars and legal notices). And see In re Macfarland, 30 App. D. C.
365; Scoville v. Brock, 81 Vt. 405, 70 Atl. 1014. See "Constitutional Law,**
Dec. Dig. (Key No.) S 61; Cent. Dig. §i 103-107.
4* Glaspell V. Jamestown, 11 N. D. 86, 88 N. W. 1023. See "Constitutional
Lawr Dec. Dig. (Key No.) § 61; Cent. Dig. §§ 103-107.
«» Appeal of Norwalk St. R. Co., 69 Conn. 576, 37 Atl. 1080, 39 L. R. A. 794;
New York & N. J. Tel. Co. v. Borough of Bound Brook, 66 N. J. Law, 168, 48
AtL 1022. But see City of Zanesville v. Zanesville Tel. & Tel. Co., 64 Ohio St.
67, 50 N. E. 7S1, 52 L. R. A. 150, 83 Am. St. Rep. 725. See "Constitutional
Law,** Dec. Dig. (Key No.) § 61; Cent. Dig. §§ 103-107.
*• Colorado Fuel & Iron Co. v. Southern Pac. R. Co., 101 Fed. 779, 42 C. C.
A. 12. But see In re Janvrin, 174 Mass. 514, 55 N. E. 381, 47 L. R. A. 319.
See '^Constitutional Law,** Dec. Dig. (Key No.) § 61; Cent. Dig. §§ 103-107.
*T Stevens v. Truman, 127 Cal. 153, 59 Pac. 397. See "Constitutional Law,**
Dec. Dig. (Key No.) i 61; Cent. Dig. §§ 103-107.
*» Street v. City of Columbus, 75 Miss. 822, 23 South. 773. See "Taxation,'*
Dec. Dig. {Key No.) § 25; Cent. Dig. { 59.
94 THE THREE DEPARTMENTS OF GOVERNMENT. (Ch. 5
by the judicial department.** Nor can the courts be authorized or re-
quired by statute to levy and collect taxes, as that is a legislative func-
tion and not judicial.*® An exception, however, exists in the case of
inheritance taxes, since their collection is necessarily incident to the
settlement of estates in the probate courts, and hence to charge those
courts with their assessment and collection is not imposing nonjudicial
duties upon them.°^
Same — As Respects the Executive,
There are but few conceivable cases in which the judicial department
could usurp purely executive functions or attempt the performance of
purely executive acts. But the importance of the principle, in this con-
nection, is discovered in the rule that the courts must arrogate no super-
vision or control over the executive department in the discharge of its
proper duties. The judiciary does not possess, and cannot exercise, any
revisory power over executive duties.** Thus the courts have no au-
thority to require the chief executive of the state by mandamus, or for-
bid him by injunction, to perform any executive act which is political
in its character, or which involves the exercise of judgment or discre-
tion. Atthe same time, it is generally (though not universally) conced-
ed that if the duty sought to be enforced is one within the scope of the
governor's powers, but is merely ministerial in its nature, not political
and not involving the exercise of judgment or discretion, but simply
obedience to the commands of positive law, then, if the rights of pri-
vate persons depend upon the performance of this duty by the execu-
49 State V. Roberson, 136 N. C. 687, 48 S. E. 595. See Margolles y. Atlantic
City, 67 N. J. Law, 82, 50 Atl. 367. See "Constitutional Law," Dec, Dig, (Kev
No.) I 70; Cent. Dig, S 1S9; "Taxation," Dec. Dig. {Key No.) | 25; Cent. Dig.
I 59.
so Hardenburgh ▼. Kldd, 10 Cal. 402 ; Fleming v. Trowsdale, 85 Fed. 189, 29
0. G. A. 106 ; Muhlenburg County y. Morehead, 46 S. W. 484, 20 Ky. Law Rep.
876 ; City of Baltimore y. Bonaparte, 93 Md. 156, 48 Atl. 735 ; Maclcln y. Taylor
County Court, 38 W. Va. 338, 18 S. B. 632. And see Vaughn y. Harp, 49 Arlc.
160, 4 S. W. 751 ; Ex parte Griffiths, 118 Ind. 83, 20 N. B. 513, 8 L. R. A. 898,
10 Am. St. Rep. 107. Compare Hubbert y. CampbellsyiUe Lumber Co., 191 U.
S. 70, 24 Sup. Ct. 28, 48 L. Bd. 101. See "Constitutional Law," Dec. Dig. {Key
No.) I 61; Cent. Dig. § 107.
»i Union Trust Co. v. Wayne Probate Judge, 125 Mich. 487, 84 N. W. UOl;
Nunnemacher y. State, 129 Wis. 190, 108 N. W. 627, 9 L. R. A. (N. S.) 121. See
"Constitutional Law," Deo. Dig. {Key No.) § 7^.
S2 Astrom y. Hammond, 3 McLean, 107, Fed. Cas. No. 596. See **Constit9h
tional Law," Dec. Dig. {Key No.) U 71-74; Cent. Dig. H 1SS-1S7.
§ 54) LIMITATIONS ON THREE DEPARTMENTS OF GOVERNMENT. 95
rive, the writ of mandamus may issue to compel him.** The rule set-
lied by the United States courts in this regard is that they "will not
interfere by mandamus with the executive officers of the government
[such as the heads of departments or bureaus] in the exercise of their
ordinary official duties, even where those duties require an interpreta-
tion of the law, the courts having no appellate power for that purpose.
But when they refuse to act in a case at all, or when, by special statute
or otherwise, a mere ministerial duty is imposed upon them, that is, a
service which they are bound to perform without further question,
then, if they refuse, mandamus will be issued to compel them." •*
For similar reasons the courts should not be invested with powers
nor required to perform duties which are properly executive in their
nature, such as the appointment of public officers.** But the "Tor-
•• Haipendlng ▼. Halght, 39 Cal. 189, 2 Am. Rep. 432; State y. Fletcher, 39
Mo. 388; People v. Bissell, 19 111. 229, 68 Am. Dee. 591; People v. Yates, 40
III. 126; State t. Chase, 5 Ohio St. 528; Stein v. Morrison, 9 Idaho, 426, 75
Pac. 246 ; People v. Board of State Auditors, 42 Mich. 422, 4 N. W. 274 ; State
T. Smith, 23 Mont. 44, 57 Pac. 449 ; State v. Savage, 64 Neb. 684, 90 N. W.
888: Slack t. Jacob, 8 W. Va. 612; Coolte v. Iverson (Minn.) 122 N. W. 251.
See '^CanBiitutUmal Law,** Dec, Dig. (Key No.) | IS; Cent, Dig. §| ISh ISo;
""Mmndamw,** Dec. Dig. (Key No.) H 6S'121; Cent. Dig. ii 127-255.
•« United States t. Black, 128 U. S. 40, 9 Sup. Ct. 12, 32 L. Ed. 354 ; Mar-
bury T. Madison, 1 Cranch, 137, 2 L. Ed. 60; United States y. Schurz, 102 U.
8. 37S, 26 L. Ed. 167 ; Gaines ▼. Thompson, 7 Wall. 347, 19 L. Ed. 62 ; Secre-
tary T. McGarrahan, 9 Wall. 298, 19 L. Ed. 579 ; Noble t. Union River Logging
R. Go^ 147 U. S. 165, 13 Sup. Gt 271, 37 L. Ed. 123 ; Board of Liquidation y.
McComb, 92 U. S. 531, 23 L. Ed. 623 ; U. S. v. Blaine, 139 U. S. 306, 11 Sup.
CL 607, 35 L. Ed. 183 ; Decatur t. Paulding, 14 Pet. 497, 10 L. Ed. 559 ; La
Abra SUver Min. Co. t. United States, 175 U. S. 423, 20 Sup. Ct. 168, 44 L. Ed.
223 ; Missouri Drug Co. y. Wyman (C C.) 129 Fed. 623 ; Taylor v. Kercheval
(C C.) 82 Fed. 497. Mandamus will not lie to compel the secretary of state
to pay orer to a private citizen money collected by the United States from a
foreign goyeniment, under arbitration or by diplomatic intervention, as In-
denmity for injuries inflicted by such foreign power or its subjects upon such
dtiaen. Tliere is no element of contract between the latter and the United
States, nor is the fund held in trust for him in such sense that he can require
Its payment to him by process of law. United States v. Bayard, 4 Mackey
(D. C) 810. See ^'Constitutional Law," Dec. Dig. {Key No,) § 75; Cent. Dig.
i JS4; '^Mandamus,*' Dec Dig. (Key No,) M 69-121; Cent. Dig. H 127-255.
•• SUte T. Brill, 100 Minn. 499, 111 N. W. 294 ; Schwars y. Dover, 68 N. J.
Law, 576; 53 AtL 214. But compare Wilkison v. Board of Children's Guard-
IsDS, 158 Ind. 1, 62 N. B. 481 ; Ross v. Board of Chosen Freeholders of Essex
County, 69 N. J. Law, 291, 55 Atl. 310. See State v. Neble (Neb:) 117 N. W.
723, 19 L^ R. A. (N. S.) 578. See **Constitutional Law,** Dec Dig. (Key No.) §|
65, 74; Cent. Dig. U 108-lU, 124.
V
96 THB THBBB DBPARTMBNTS OF QOVBRNMBNT. (Ch. 5
rens system" of registering land titles, with provisions for proceed-
ings in the courts, is not open to this objection, since the various steps
to be taken involve the exercise of judicial powers rather than ad-
ministrative.'*
ADimraSTBATIVE BOARDS, OFITCEB8, AHD COMMISSIONS.
55. Thonsli a lesialative body oannot delesate its power to make laws,
yet, havliie enacted etatiites. It may invest ezeentiTe oAoers
or boards or commissions created for tbe purpose with anthori-
ty to make mles and resnlations for tke practical admlnistra*
tion of snck statutes in matters of detail and to enforce tke
same, and also to determine tke existence of tke facts or con«
ditions on wkick tke application of tke law depends* Bnt snck
administrative agencies cannot make tke violation of tkeir
reffnlations punishable as a criminal olPcnse.
Legislative functions cannot be delegated. But since the duty of
carrying the laws into effect devolves upon executive and administra-
tive officers, there is no constitutional objection to clothing them with
authority to make such regulations and orders as are necessary to the
practical working of the law, to secure its execution according to the
purpose and intention of the legislature, and to the efficient adminis-
tration of their offices.*^ Again, although the vitality of a statute can-
not be made to depend on either the will or discretion of the executive
department, it is proper to leave to the officers charged with its ad-
ministration the duty of determining the existence of the particular
facts or conditions on which, by the terms of the law itself, its applica-
tion or enforcement is made to depend.'* But even this measure of
»• Robinson v. Kerrigan, 151 Cal. 40, 90 Pac. 129, 121 Am. St. Rep. 90; People
V. Crissman, 41 Colo. 450, 92 Pac. 949. See "Constitutional Law," Dec. Dig.
{Key No.) § 74; Cent. Dig. § i24.
5 7 Union Bridge Co. v. United States. 204 U. S. 364. 27 Sup. Ct. 367, 51 L.
Ed. 523; Boske v. Comingore, 177 U. S. 4o9, 20 Sup. Ct. 701, 44 L. Ed. 846;
Trustees of Village of Saratoga Springs v. Saratoga Gas, Electric Light &
Power Co., 191 N. Y. 123, 83 N. E. 693, 18 L. R. A. (N. S.) 713 ; State v. Chit-
tenden, 127 Wis. 4<5S, 107 N. W. 500. While department regulations duly pro-
mulgated have the force of law, in a limited sense, they cannot enlarge or re-
strict the liability of an officer on his bond. Meads v. United States, 81 Fed.
GS4, 26 C. C. A. 229. See 'Vonstitutional Law,'' Dec. Dig. (Key No.) § 62; Cent.
Dig. §§ 94-102.
58 Village of Little Chute v. Van Camp, 136 Wis. 526, 117 N. W. 1012; State
V. Railroad Commission, 137 Wis. 80. 117 N. W. 846; State v. Thompson, 160
Mo. 333, GO a'W. 1077, 54 L. R. A. 950, 83 Am. St. Rep. 4G8; State v. Chitten-
§ 55) ADMIKI8TRATIVB BOARDS, OFFICERS, AND CX>MMISSI01f S. 97
authority must be confided to governmental agencies ; it cannot be dele-
gated to purely private and unofficial persons or bodies.'* And al-
though the legislature may secure obedience to the rules and regula-
tions so made by administrative officers by declaring their violation to
be a punishable offense,*® yet no such power resides in the officers who
make the rules.**
There is a marked and increasing tendency to leave more and more
of what may be called the detail of legislation to such officers and
commissions, the legislature settling the general policy and outline of
the laws on a given subject and confiding to administrative agencies
the work of erecting the machinery necessary for their practical opera-
tion and their application to particular cases. Thus the legislatures have
created (and the courts have sustained) commissions to regulate and 4^/5
control the operation of public service corporations in general,** and ^/ ^
den, 127 Wis. 468, 107 N. W. 500; Southern Pac. Oo. v. U. S. (C. O. A.) 171
Fed. 360. Examples of the application of this rule are seen in the provlsionsi
of certain of the tariff acts, giving the President power to enforce or suspend
the law with reference to the products of certain foreign countries, on as-
certaining that reciprocal trade concessions are given or withheld, as the
case may be (see Field v. Clark, 143 U. S. 649, 12 Sup. Ct 495, 36 L. Ed. 294),
and in the provision of a tariff law excluding teas of "Inferior quality" from
tiiis country, but leaving the final determination of the question in respect
thereto to the customs officers. . Cruikshank v. Bidwell (O. C.) B6 Fed. 7, af-
firmed 176 U. S. 73, 20 Sup. Ct 280, 44 L. Ed. 377. Also in laws which re-
quire licensing authorities to determine the good character of an applicant
as preliminary to granting him a license. State v. Thompson, supra. See
"ConsHtuiional Later Dec. Dig, (Key No.) |§ 59-66; Cent. Dig. ff 89-122.
•• Johnstown Cemetery Ass'n v. Parker, 28 Misc. Rep. 280, 59 N. Y. Supp.
821 ; State ▼. Holland, 37 Mont. 393, 96 Pac. 719. But see People v. District
Court of Second Judicial Dist, 32 Colo. 15, 74 Pac. 896, sustaining a law which
gives to the state central committee of a political party exclusive jurisdiction
to determine factional disputes within the party. See **Constitutional Law,'*
Dee. Dig. (Key No.) | 64; Cent. Dig. §f 91, 92.
•• Pierce v. Doolittle, 130 Iowa, 333, 106 N. W. 751, 6 L. B. A. (N. S.) 143 ;
United SUtes v. Breen (C. C.) 40 Fed. 402 ; United States v. Ormsbee (D. C.)
74 Fed. 207; U. S. v. Grimaud (D. O.) 170 Fed. 205. But compare United
States V. Matthews (D. C) 146 Fed. 30i8. See ^^Constitutional Law*' Dec.
Dig. {Key No.) || 59-66; Cent. Dig. §§ 89-122.
•1 Johnson v. United States, 26 App. D. C. 128. See **Constitutional Law,'"
Dec. Dig. (Key No.) S 77.
•« Winchester & S. R. Co. v. Commonwealth, 106 Va. 264. 55 S. B. 692 ; State
T. Wagener, 77 Minn. 483, 80 N. W. 633, 46 L. R. A. 442, 77 Am. St. Rep. 698.
Bee '^ConatUutional Law,** Dec Dig. (Key No.) |i 59-66; Cent. Dig. tl 89-122.
BL.CONST.Ii.(3D.ED.) — 7
^'Kf
98 THE THREE DEPARTMENTS OF GOVERNMENT. (Ch. 5
railroads in particular.** Whether such a commission has power to
establish transportation rates, or can be vested with authority to fix a
reasonable rate for given service on finding that the carrier's rate is
unreasonable, is not yet fully settled. Decisions in some of the states
favor the constitutionality of such a grant of power; •* but the fed-
eral courts hold otherwise.'* So also we find statutes authorizing
commissioners of gas and electricity to fix maximum rates therefor to
be charged by public service corporations.** And the legislature has
power to delegate to civil service commissioners the authority to enact
and enforce rules governing the appointment and promotion of public
officers, their tenure of office, and their removal therefrom; for as
there is no title or property in a public office, the removal of the officer
is not a judicial act.*^ The same principle applies to the la\ys, now so
«» St. Louis, I. M. ft S. R. Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616. 52
L. Ed. 1061 ; St. Louis. I. M. & S. R. Co. v. Neal, 83 Ark. 591. 98 S. W. 958;
State V. Missouri Pac. R. Co., 76 Kan. 467, 92 Pac. 606 ; Attorney General v.
Old Colony R. Co.. 160 Mass. 62, 35 N. E. 252, 22 L. R. A. 112 ; State v. At-
lantic Coast Line R. Co. (Fla.) 47 South. 969. See ** Constitutional Law,*' Dec,
Dig. (Key A'o.) §f 59-66; Cent. Dig. S§ 89-122; ''Railroads;* Deo. Dig. {Kev
'So.) f 9; Cent. Dig. %% 12-19.
04 Southern R. Co. v. Railroad Commission of Indiana, 42 Ind. App. 90, 83
N. E. 721 ; Minneapolis, St. P. & S. S. M. R. Co. v. Wisconsin Railroad Com-
mission, 136 Wis. 146, 116 N. W. 905. 17 L. R. A. (N. S.) 821. See **Constitur
tional LatCj" Dec. Dig. (Key No.) |S 54, 62; Cent. Dig. S 100.
65 MeChord v. Louisville & N. R. Co., 183 U. S. 483. 22 Sup. Ct 165, 46 L. Ed.
289 ; Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418, 10 Sup. Ct 462,
33 L. Ed. 970 ; Central of Georgia R. Co. v. Alabama Railroad Commission (C.
C.) 161 Fed. 925. See Southern Pac. Co. ▼. Bartine (C. C.) 170 Fed. 725. The
Interstate Commerce Commission, while it may determine Judicially that an
existing transportation rate charged by a carrier is unreasonable, has no
authority to prescribe a rate, either maximum, minimum, or absolute, to con-
trol in the future and enforce its order by proceedings in mandamus. In-
terstate Commerce Commission ▼. Lake Shore & M. S. R. Co., 202 U. S. 613,
26 Sup. Ct 766, 50 L. Ed. 1171 ; Interstate Commerce Commission y. Alabama
Midland R. Co., 168 U. S. 144, 18 Sup. Ct 45, 42 L. Ed. 414 ; Interstate Com-
merce Commission t. Cincinnati, N. O. & T. P. R. Co., 167 U. S. 479, 17 Sup.
Ct 896, 42 L. Ed. 243. See ''Constitutional Law;* Dec. Dig. (Key Ifo.) H ^4.
62; Cent. Dig. { 100.
«« Trustees of Village of Saratoga Springs v. Saratoga Gas, Electric Light
& Power Co., 191 N. Y. 123, 83 N. E. 693, 18 L. E, A. (N. S.) 713. See "Cotwti-
tutional Law;* Dec. Dig. {Key No.) %i 50, 61, 62.
87 People V. City of Chicago, 234 111. 416, 84 N. E. 1044; People t. Kipley^
171 lU. 44, 49 N. E. 229, 41 L. R. A. 775 ; Croly v. Board of Trustees of_Clty
of Sacramento, 119 Cal. 229, 51 Pac. 323. See People v. Cram, 164 N. Y. 166,
§ 56) ADMINISTRATiyB BOARDS, OFFICERS, AND COMMISSIONS. 99
commonly in force, giving to boards or commissions control over the
licensing of physicians, dentists, pharmacists, locomotive and steam en-
gineers, plumbers, saloon keepers, and other persons, and authorizing
them to determine the qualifications of applicants and to revoke their
licenses for causes stated in the statute but which are to be investigated
and determined in the particular instance by the licensing board.* • So
also of the authority vested in boards of health and quarantine offi-
cers.** Again, the legislature may delegate its control over streets,
roadways, parks, and boulevards to local administrative boards.** And
many other illustrations could be cited from the reports.*^
58 N. E. 112. Compare Christy t. Kingflsber, 13 Okl. 585, 76 Pac. 135. Bee
^-Constitutional Late,'' Dec Dig, (Key 2io.) | 62; Cent, Dig. i 99.
•• Arwlne t. CaUfomla Board of Medical Examlpers^ 151 Cal 499, 91 Pac.
319 ; Appeal of Moynlhan, 75 Conn. 358, 53 Atl. 903 ; Splegler v. City of Chi-
cago, 216 111. 114, 74 N. E. 718 ; Spurgeon v. Rhodes, 167 Ind. 1, 78 N. E. 228 ;
Smith T. State Board of Medical Examiners (Iowa) 117 N. W. 1116 ; Kennedy
T. State Board of Registration, 145 Mich. 241, 108 N. W. 730 ; State v. Doerring,
194 Mo. 398, 92 8. W. 489 ; France v. State, 57 Ohio St 1, 47 N. E. 1041 ; Com-
monwealth ▼. Shafer, 32 Pa. Snper. Ct 497; State Board of Health v. Roy, 22
B. I. 538, 48 AU. 802 ; In re Thompson, 36 Wash. 377, 78 Pac. 899 ; State v.
Crombie, 107 Minn. 166, 119 N. W. 658 ; Block v. Chicago, 239 111. 251, 87 N.
E. 1011. But compare Harmon ▼. State, 66 Ohio St 249, 64 N. E. 117, 58
L. R. A. 618. See '^Constitutional Laic," Dec, Dig. {Key No.) U 62, 63; Cent,
Dig. H 99, 108-110.
•• SUte T. Sontheni Ry. Co., 141 N. C. 846, 54 S. E. 294 ; Kirk ▼. Board of
Healtli, 83 8. C. 372, 65 S. E. 387. Compare State y. Burdge, 95 Wis. 390, 70
K. W. 347, 87 L. R. A. 157, 60 Am. St Rep. 123. See ^'Constitutional Law,"
Dec Dig. (Key No.) f§ 62, 65; Cent. Dig. |§ 99, lOS-110.
'• Brodbine t. Revere, 182 Mass. 598, 66.N. E. 607; Wilcox t. McClellan, 47
Misc. Rep. 465, 95 N. Y. Snpp. 941, affirmed in 185 N. Y. 9, 77 N. E. 986. See
""ConsiUutional Law," Dec. Dig. (Key No.) |i 62, 6S; Cent. Dig. f § 99, 108-110.
vi See Dastervignes ▼. United States, 122 Fed. 30, 58 C. C. A. 346 (authority
of Mcretary of the interior to make rales relating to national forest reserva-
tions) ; Iowa Life In& Co. ▼. E2astem Mat Life Ins. Co., 64 N. J. Law, 340, 45
Atl. 762 (control over insurance companies vested in secretary of state) ; Leeper
T. State, 108 Tenn. 500, 53 S. W. 962, 48 L. R. A. 167 (commission to select text-
books for the public schools) ; School City of Marion v. Forrest, 168 Ind. 94,
78 N. E. 187 (library boards In cities) ; Elwell v. Comstock, 99 Minn. 261, 109
N. W. 606, 7 L. R. A. (N. S.) 621 (commission appointed to determine the effi-
ciency of a voting machine authorised to be used at state elections) ; In re
Hertle, 190 N. Y. 531, 83 N. B. 1126 (commissioners of accounts, charged with
the duty of examining the accounts and methods of the offices of a municipal
govemmeDt) ; Coopersville Co-operative Creamery Co. v. Lemon, 163 Fed. 145,
89 C C A. 595, and Parther v. United States, 9 App. D. C 82 (act of congress
taxing oleomargarine and authorising the commissioner of internal revenue to
100 VHB THBBB DBPARTMBNTS OF OOVBRNMBNT, (Ch. 6
POUnOAIi QUESTIONS,
6S. Qvestioiis wliloh are of » politioal aatiire are not tKo sitbjoet of
Judicial eosnisaneoi courts will leave tKe determiaatioB of
ttKem to the exeoutiTe and loBlslAtiTe departments of the ^ofv»
emment.
When such questions arise in the course of litigation, the courts will
refuse to take jurisdiction of the action, if it necessarily involves such
a determination, or, if the question has been settled by the action of tiie
political departments of the government, the judiciary will accept and
follow their conclusions without question.'^* There are two reasons for
this rule. In the first place, courts ought not to usurp the functions of
the political branches of the government nor intrude upon their juris-
diction. And, second, in public affairs of the state or nation, such as
may be made the basis of executive or legislative action, the judicial
tribunals must not hamper or embarrass the other departments by
decide what substances are taxable thereunder and also to determine by regu-
lations how packages of oleomargarine shall be marked or stamped) ; Dunlap
V. United States, 173 U. S. 65, 19 Sup. Ct 319, 43 L. Ed. 616 (rebate of customs
duties on alcohol used in the arts, to be made under regulations to be pre-
scribed by the secretary of the treasury) ; Butler v. White (C. C.) 83 Fed. 578
(civil service act of congress). And see United States v. Hanson, 167 Fed.
881, 93 O. C. A. 371 ; Kansas Oity Southern R. Co. v. State (Ark.) 119 S. W.
288. It Is also to be remarked that, as a general rule, the courts will not
interfere with the exercise of the discretion vested by statute in adminis-
trative officials, in the absence of convincing proof of bad faith or miscon-
duct on their part, or unless it is clear they have exceeded the powers con-
ferred on them. Holly v. City of New York, 128 App. Div. 499, 112 N. T.
Supp. 797: De Merritt v. Weldon. 154 Cal. 545. 98 Pac. 537; State Railroad
Commission v. People, 44 Colo. 345, 98 Pac. 7. See ^^Constitutional Law,**
Dec. Dig, (Key No.) §§ 59-^6; Cent, Dig. §§ 89-122.
7 2 Marbury v. Madison, 1 Cranch, 137, 170, 2 L. Ed. 60; Georgia v. Stanton,
6 Wall. 50, 18 L. Ed. 721 ; Parker v. State, 133 Ind. 178, 32 N. E. 836, 33 N. B.
119, 18 L. Ed. 567 ; State v. Bowman (Ark.) 116 S. W. 896 ; United States v.
Holt (C. C.) 168 Fed. 141. The question as to what liability there shall be
between a new county and an old one, from which it has been carved out, is
political and belongs to the legislative department Riverside County v^^San
Bernardino. County^ 134 Cal. fil7, 6ft Par. 7m. So is the question of what
property shall be embraced within a taxing district and whether it shall be
taxed for municipal purposes. Kettle v. Dallas, 35 Tex. Civ. App. 632, 80 S.
W. 874. See ^^Constitutional Law,** Dec. Dig. {Key No.) ( 68; Cent. Dig. |§
125-127.
i M) POLITIOAL QUB8TI0N& 101
prejudging the questions which they will have to decide, or attempting
to review their decisions already made.
The question which of two opposing governments, each claiming to
be the rightful government of a state, is the legitimate government, is
an illustration of the kind of questions which the courts will refuse to
decide on the ground of their belonging to the political departments.''*
So, also, it belongs exclusively to the executive and legislative depart-
ments to recognize, or refuse to recognize, a new government in a
foreign country, claiming to have displaced the old and to have estab-
lished itself.''* And who is the sovereign, de jure or de facto, of a
given district or territory, is not a judicial but a political question.''*
Again, whether or not a state of war, insurrection, or public hostility,
within the limits of the country, or between this country and a foreign
power, existed at a given date, and the nature and extent of the war,
if any existed, is a question on which the judicial tribunals must fol-
low the political departments and accept their determination as con-
clusive.^* Treaties, in so far as they involve the rights of private liti-
gants, may be the subject of judicial cognizance, but not with respect
to their execution or their effect on public rights. Thus, no court has
power to question, or in any manner look into, the powers or lights
recognized by a treaty in the nation or tribe with which it was made.*'
T* Luther v. Borden, 7 How. 1, 12 L. Ed. 581 ; Thomas v. Taylor, 42 Miss.
fSSU 2 Am. R^. 625. In ascertainlBg the tribal and other relations of Indians,
the courtB will generally follow the executlTe and legislative departments,
rarrell v. United States, 110 Fed. 942, 49 G. C. A. 183. See '^CofutUutionai
Law,** Dec. Dig. {Key No.) I 68; Cent. Dig. | 125.
r« Kennett y. Chambers, 14 How. 88, 14 L. fid. 810. See '^Oonatitutional
£«tp.** Dec. Dig. (Ketf Ko.) S 68; Cent. Dig. t 125; "^Intematioftal Law,'* Deo.
Dig. (Key No.} 14;* Cent. Dig. { 4.
T> Jones ▼. United States, 137 U. S. 202, 11 Sup. Ct 80, 84 L. Ed. 691. Ck>urt8
wUl treat as subject to their jurisdiction any territory claimed by the political
department Harrold y. Arrlngton, 64 Tex. 233. See ^'Constitutional Law,**
Dec. Dig. {Key No.) { 68; Cent. Dig. ( 125.
T«6ray y. United States, 21 Ct CI. 840; United States y. One Hundred and
Twenty-Nine Packages, Fed. Cas. No. 15,941 ; Gelston y. Hoyt 8 Wheat 246,
824, 4 L. £id. 381. It would not haye been competent for the Judiciary to make
any declaration upon the question of the length of time during which Cuba
might be rightfully occupied and controlled by the United States In order to
effect Its pacification. Neely y. Henkel, 180 U. S. 109, 21 Sup. Ct. 302, 45 L.
Ed. 448. See **War," Dec. Dig. {Key No.) ( 7; Cent. Dig. { 10.
TT United States y. Sandoyal, 167 U. S. 278, 17 Sup. Ct 868, 42 L. Ed. 168 ;
Analey y. Alnsworth, 4 Ind. T. 308, 69 Su W. 884 ; Maiden y. Ingersoll, 6 Mich.
873. The courts haye no power, by mandamus or otherwise, to compel the
102 THE THBBE7 BEPARTMENTS OF GOVERNMENT. (Ch. 5
Nor are the courts authorized to inquire or decide whether the per-
son who ratified a treaty on behalf of a foreign nation had the power,
by its constitution and laws, to make the engagements into which he
entered; if the executive department accepts the treaty as valid, that is
enough for the courts.'^® And on the same principle, it is not for the
courts to decide "whether a treaty with a foreign sovereign has been
violated by him ; whether the consideration of a particular stipulation
in a treaty has been voluntarily withdrawn by one party, so that it is no
longer obligatory on the other; or whether the views and acts of a
foreign sovereign, manifested through his representative here, have
given just occasion to the political departments of our government to
withhold the execution of a promise contained in a treaty, or to act in
direct contravention of such promise." ''^ So, again, the validity of
the retrocession to Virginia of that part of her territory which was orig-
inally ceded to the United States to form part of the District of Colum-
bia, is settled by the political departments of government and cannot
be inquired into by the courts.®'*
But, on the other hand, the ascertainment of the boundary between
two states, or between a state and a territory, is not so far political in
its nature that the courts may not determine it.'^ Nor is the question
of the eligibility of a person elected to executive office in the state gov-
ernment.®^ Neither is the question whether or not an apportionment
act (dividing the state into districts for the election of members of the
legislature) conforms to the requirements of the constitution.®*
secretary of state to present and urge a claim of a citizen of this country
against a foreign government to redress a wrong committed against him in
such foreign country, the duty of righting such a wrong being a political one.
United States v. Hay, 20 App. D. O. 576. See **ConstUutio^l Law," Dec. Dig,
(Key No.) § 68; Cent Dig. § 123.
78 Doe V. Braden, 16 How. 635, 14 L. Ed. 1090. See ** Constitutional Law,"
Dec. Dig. {Key No.) § 68; Cent. Dig. i 125; ^'Treaties," Dec. Dig. {Key No.) |
S; Cent. Dig. § S.
7» Taylor v. Morton, 2 Curt. 454, Fed. Cas. No. 13,799. See "Constitutional
Law," Dec. Dig. (Key No.) § 68; Cent. Dig. i 125.
«o Phillips V. Payne, 92 U. S. 130, 23 L. Ed. 649. See **Puhlic Lands," Dec.
Dig. {Key No.) § 2; Cent. Dig. § 2.
81 United States v. Texas, 143 U. S. 621, 12 Sup. Ct. 488, 40 L. Ed. 867;
Rhode Island v. Massachusetts, 12 Pet. 657, 9 L. Ed. 1233. See **Comtitutional
Law,'* Dec. Dig. {Key No.) i 68; Cent. Dig. i 125.
8« State V. Gleason, 12 Fla. 190. See '^Constitutional Law," Dec. Dig. {Key
No.) § 68; Cent. Dig. § 125.
88 State V. Cunningham, 81 Wis. 440, 51 N. W. 724, 15 L. R- A. 561; Id.,
83 Wis. 90, 53 N. W. 35, 17 L. R. A. 145, 35 Am. St. Rep. 27 ; People v. Thomp-
§ ST) ' ADVISOBT OPINIONS BY THE COURTS. 103
ADVISORY OPINIONS BT THE COURTS.
57. TIm eo«rts eaaaot be required to reiiider their opinioiu upon qnes-
tioas of law, ezeept in oases aotvally before them. But in a
few of the states, the oonstitutioBs empower the ezeon'tiTe or
lesislatiTe departments to demand the opinion of the svpreme
oonrt on important qvestions relating to pending measnres.
For instance, the constitution of Massachusetts declares that "each
branch of the legislature, as well as the governor and council, shall
have authority to require the opinions of the justices of the supreme
judicial court upon important questions of law and upon solemn occa-
sions/' •* And in five or six other states similar constitutional pro-
visions are found. But unless the constitution so provides, it is not
within the lawful power of the other departments of the government
thus to propound questions to the courts and require answers to them.
A statute authorizing either house of the legislature to do this is uncon-
stitutional, for the reason that it imposes on the courts duties which are
not judicial in their nature.'* The President of the United States does
not possess any authority to require the opinion of the supreme court
on questions propounded to it.®* "In giving such opinions (where
authorized by the constitution) the justices do not act as a court, but
as the constitutional advisers of the other departments of the govern-
ment, and it has never been considered essential that the questions pro-
posed should be such as might come before them in their judicial ca-
pacity/' *'' But it is held that questions relating to the desirability or
policy of proposed legislation cannot be thus propounded to the court.*"
*lt is well understood, and has often been declared by this court, that
an opinion formed and expressed under such circumstances cannot be
■on, 155 HI. 451, 40 N. B. 307 ; Ragland v. Anderson, 125 Ky. 141, 30 Ky. Law
Rep. 1109, 100 S. W. 865. See "Constitutional Law,'* Dec. Dig. (Key No.) I 68;
Cent. Dig. { irt.
t4 Const. Mass. c. 3, art. 2.
••In re Application of Senate, 10 Minn. 78 (Gil. 56). And see Wyatt v.
State Board of Equalization, 74 N. H. 552, 70 Atl. 387. Bee 'Constitutional
Law,^ Deo. Dig. {Key No.) { 69; Cent. Dig. { 128; '^Courts*' Cent. Dig. §t
•• 2 Story, Const t 1571.
•T Opinion of the Justices, 126 Mass. 557. See ^'Constitutional hOAO^ Deo^
Dig. CKey No.) ( 69; Cent. Dig. 1 128; ''Courts;' Cent. Dig. §( m* 493.
•• In re Senate Bill 65, 12 Colo. 466, 21 Pac. 478. See "Constitutional Law,
Dee. Dig. {fey No.) | 69; Cent. Dig. | 128; "Courts," Cent. Dig. H 492, 496.
»f
104 THB THBBB DBPABTMBNTS OF OOVBRNMBNT. (Ch. 5
considered in any sense as binding or conclusive on the rights of parties,
but is regarded as being open to reconsideration and revision; yet it
necessarily presupposes that the subject to which it relates has been
judicially examined and considered, and an opinion formed thereon." ••
A finding of law and fact made by the Court of Claims, at the request
of the head of a department, with the consent of the claimant, and
transmitted to such department, but which is not obligatory on the de-
partment, is not a judgment. The function of the court in such a case
is ancillary and advisory only, and hence its decision is not appeal-
able.**
8» Green t. Com., 12 Allen (Mass.) 155. Bee ^^Constitutional Law,^ Dec. Dig,
(Key No,) f 69; Cent. Dig. { 128; ''Courts;' Cent. Dig. (§ 492, 493.
•0 In re Sanborn, 148 U. 8. 222, 13 Sup. Ct 577, 37 L. Ed. 429. See '* Appeal
and Error,"* Deo. Dig. (Key No.) ( 85; Cent. Dig. ( 550; "Courts;* Cent. Dig.
11041.
SS6(MU) THs raoBBAL bxeoutttb. 106
OHAFTEB VL
THE rSDAEtAL EXECUnYBL
88. The President.
09. The Vice-President
60-61. Election of President and Vice-President
62. Qnalifications of President.
68. Vacancy in Office of President
64. Ck>mpensation of President
65. Oath of Office of President
66. Indq;)endence of the ExecutiTei
67-68. Veto Power of President
69. Military Powers of President
70-73. The Cabinet
74. Pardoning Power.
75-76. The Treaty-Making Power.
77-78. Appointments' to Office.
79. Presidential Messages.
80. Ck>nvening and Adjonmlng Congress.
81. Diplomatic Relations.
82. Execatlon of the Lawsl
Impeachment
M. Tkm mmewMw power of the United States is vested in a President
of tko United States, irho holds his oAoo dnHnc a tenn of f ow
6«. Tko Tloe Ihresidont of tho United States is olootod at the
tiaM with tho President and holds his oAoo for the same term. / ^
Ho aots as yresidont of tho senate, and sneooods to tho presi-
donej in ease of the reatoral of tho President from oflloo, or of
his death, rosicnation, or disability.
EUBOTION OF PRESIDENT AND VICE-PRESIDENT.
60l The President and Vieo-President are ohosen by an olootoral eol-
loco, tho meatbors of irhieh are appointed or oloetod in the
soToral states, oaoh state boinc entitled to a representation
therein oqnal to the whole nvmbor of its senators and repre-
Ltativos in
106 THS FEDERAL EXECUTIVE. (Ch. 6
61* If BO oandidata for tho presidency reoelTos a majority of the Totos
oast by the electoral eollese, the President is to be eleeted by
the honse of representatives. In a similar oontincenoy, the
Vioe-President is ehosen by the seimtes "'
The method of electing the President and Vice-President is prescrib-
ed by the twelfth amendment to. the constitution, together with such
parts of the first section of the second article as have not been supersed-
ed by that amendment. The presidential electors, chosen as therein
directed, constitute what is commonly called the "electoral college." It
will be observed that congress may determine the time' of choosing the
electors and the day on which they shall give their votes, which day
shall be the same throughout the United States. In pursuance of this
power, the day for casting the votes was at first fixed on the first
Wednesday of December in every fourth year. But by the statute
now in force (Act Jan. 23, 1845), the electors are to be chosen on the
'\ Tiip«s<j,^y nP^t aft^r thit fiffit Mnnrlnx.rJ November. But the manner
' of choosing the electors is left entirely To the individual states. The
state legislatures have exclusive power to direct the manner in which
the presidential electors shall be appointed. Such appointment may be
made by the legislature directly, or by popular vote in districts, or by a
general ticket, as the legislature may direct.* At the present day, the
last mentioned method is almost universally in vogue. The constitu-
tion does not prescribe the qualifications of a presidential elector, ex-
cept in a negative way. No person is eligible to this office who is a
"senator or representative, or who holds an office of trust or profit un-
der the United States." And by the third section of the fourteenth
amendment, no person is eligible who has violated an oath previously
taken to support the constitution of the United States, by engaging in
insurrection or rebellion against the same, or giving aid or comfort to
the enemies thereof, unless his disability has been removed by congress.
A disqualification for the office of presidential elector, caused by the
holding of an office, cannot be removed by the resignation of that
office after the choosing of the elector but before he comes to cast his
vote for President.* The courts of a state have jurisdiction of an in-
dictment for illegal voting for presidential electors.*
1 McPherson y. Blacker, 146 U. S. 1, 13 Sup. Ct. 8, 86 L. Ed. 869. See **T}nAted
States,** Dec Dig. (Key No.) f 25; Cent, Dig. § 16.
s In re Corliss, 11 R. I. 638, 23 Am. Rep. 538. See '^United States,** Dec. Dig.
{Key No.) ^ 25; Cent. Dig. { 16.
s In re Qreen, 134 U. S. 377, 10 Sup. Ct 586, 33 L. Ed. 95L See 'Vriminal
Law,** Dec. Dig. (Key No.) { 95; Cent. Dig. I 174.
§§ 60-61) ELECTION or PRESIDENT AND VICE-PRESIDENT. 107
The electors are required to make lists of the votes which they cast,
and sign and certify the same, and transmit them sealed to the presi-
dent of the senate. It is also provided that this officer, in the presence
of both houses of congress/ sliall open all the certificates. The consti-
tution then provides that the votes shall be counted. But it is not pre-
scribed by whom the counting shall be done, nor who shall declare the
result. But this is now regulated by statute, the duty being cast upon
the president of the senate, who was obviously intended to discharge it.
But neither in the original plan nor in the twelfth amendment is any
provision made for the determination of questions which may arise as
to the regularity or authenticity of the returns or the right or qualifica-
tion of the electors, or the manner or circumstances in which the votes
should be counted. This serious defect in the constitution was made
apparent in the memorable contest of 1877. The electoral commission,
by which that election was determined, was created only to meet the
particular emergency, and was not made applicable to future cases.
But since that time, congress has provided regulations for these mat-
ters with such care and minuteness of detail that no such dispute is
likely ever to recur.*
Great importance was attached by the framers of the constitution to
the interposition of the electoral college between the passions and prej-
udices of the undiscriminating multitude of voters and the high office
of President. But in no single instance have their designs and theories
been more completely frustrated by the practical workings of the system
than in this. It is well known that at present the electors have no inde-
pendent choice of the candidates for whom their votes shall be cast.
The candidates are nominated by national conventions of the political
parties, and the electors have merely the perfunctory task of registering
their votes for the candidate of the party by whom they were chosen.
Only in very rare instances do the presidential electors find themselves
at liberty to exercise their personal judgment or preference. In gener-
al, the electoral college is a mere survival.
The house of representatives is to elect the President in case no per-
son has aThaJurfiy of ttl'fi' erectoraTvotes. In that event, the persons
receiving the greatest numBef '^ votes (not exceeding three candidates)
arc to be voted for, the vote is by states, each state having one vote,
and a majority of all the states is necessary to elect. In the same con-
4 Act Cong. Feb. 3, 1887, 24 Stat 373 (U. S. Comp. St 1901, p. 67) ; Act Oct
10, 1888^ 25 SUt 613 (U. S. Comp. St 1001, p. 72).
108 THB FBDBBAL BXBCUTITB. (Ch. 6
tingency the senate is to choose the Vice-President, voting for the two
candidates standing highest on the list.
QUAXJFIOATION8 OF PBE8IBE1IT.
62. Tke eoastitiition vrMwribes tKe qualUloatioiui of tKe PvosldeAt ia
three parttoulare. To be eligible to tbii ofllee lie miut
(a) Be a nAtnral bom eltisen of the United States i
G>) Have attained the ac« of thirty-llTe yean;
(e) Have been for fourteen years a resident within the United States.
Congress would clearly have no power to add to these qualifications,
nor to dispense with any requisite laid down in the constitution. "By
residence, in the constitution, is to be understood, not an absolute in-
habitancy within the United States during the whole period, but such
an inhabitancy as includes a permanent domicile in the United States.
No one has supposed that a temporary absence abroad on public busi-
ness, and especially on an embassy to a foreign nation, would interrupt
the residence of a citizen so as to disqualify him for office. If the word
were to be construed with such strictness, then a mere journey through
any foreign adjacent territory, for health or for pleasure, or a com-
morancy there for a single day, would amount to a disqualification." *
VAOAN OT IN OFFICE OF PRESIDENT,
63. In ease of the remoral of the President from oAee, or of his death*
resignation, or inability to diseharso the powers and dvties of
the oAee, the same deToWes npon the Vice-President. If both
these should die, or bo incapacitated fjrom discharging the du-
ties of the oAce, as abore, then, by a statutory provision, the
oAce doTolTcs npon certain members of the eabinet, snoceedinc
each other in a prescribed order*
The constitution gives to congress the power by law to "provide for
the case of removal, death, resignation, or inability both of the Presi-
dent and Vice-President, declaring what officer shall then act as Presi-
dent, and such officer shall act accordingly until the disability be re-
moved or a President shall be elected." In pursuance of this power, it
was at first provided that, in the case supposed, the president of the
senate, or, if there were none, then the speaker of the house of rep-
• 2 Story, Ck>iist. ( 147a
§ S4) OOMPENSATION OF PRBSIDENT. 109
resentatives for the time being, should act as President.* But this law
was repealed by an act passed in 1886 ^ wherein it is provided that in
default of both a President and Vice-President capable of acting, the
heads of departments shall succeed them in the following order : The
secretary of state ; the secretary of the treasury ; the secretary of war ;
the attorney general ; the postmaster geneS ; the secretary of the navy ;
the secretary of the interior. This act settles a question of considerable
importance which was left open under the former law. It declares that
its terms shall apply only to such among the above named officers
as are eligible to the office of President under the constitution and
not under impeachment at the time. If the Vice-President becomes
acting President, he will hold the office until the expiration of the term
for which the President was elected. And so also, it would appear, will
a member of the cabinet, succeeding under the terms of the law men-
tioned above, except in the case where the cause of his succession is a
temporary disability of the President, in which event he is only to hold
the office until the disability is removed. In view of the possibility of
the President desiring to resign his office, a case contemplated by the
constitution, it was very important that the method of effecting the res-
ignation should be pointed out, and that there should be some authori-
tative declaration of the proof of such resignation to be required. This
desideratum was met by an early act of congress providing that the
resignation shall be made by some instrument in w riting, declaring the
same, su6scribed by the party, and delivered into the office of the secre-
tary of state.*
90MPEH8ATION OF PRESIDENT.
64. Tke Mnutltiitioa provides tl&at tho President shall, mt stated
ttasesy receive for Us services a eompensatioiit irhioh shall nei-
ther he increased nor dlmliiishad dnrins the period for which
he shall have heen elected* and he shall not within that period
receiTe any other emolnment trmn. the United States or any of
The object of this provision is of course to put the President be-
yond either the fear or favor of congress, by depriving that body of
• Rev. St. U. S. i§ 146-150.
7 24 Stat. 1 (U. S. Comp. St 1901, p. 74).
• Act March 1, 179% c. 8^ f 11 (Rev. St U. S. ( 151 [U. S. Ck)inp. St 1901,
P.75D.
110 THE FEDERAL EXECUTIYB. (Ch. 6
the power to coerce him into submission to its wishes by cutting off his
stipend, or to bribe his compliance by an increase of salary. The salary
of the President was at first fixed at $25,000 per annum, and so con-
tinued until it was increased to $50,000 by the act of March 3, 1873.
As this statute was enacted on the last day of the first term of Presi-
dent Grant, who entered upon his second term on the next following
day, it is regarded as having established a precedent to the effect that
an increase of salary made after the re-election of a President may
govern his compensation during the second term. A further increase
in the salary of the President w^s made by the act of congress of
March 4, 1909, which fixed it at $75,000.
OATH OF OFFICE OF FRE8IBENT.
65* The eonstitvtion. reqnlres that the Fresidenty before he enters on
the ezeention of his offleoy shall tahe the following oath or af-
flrmationt ''I do solemnly swear (or affirm) that I will faith*
fnlly ezeente the office of Fresident of the United States, and
will to the best of my ability preserre, protect, and defend the
oonstitvtion of the United States/'
This official oath is usually taken by the President-elect in front of
the Capitol at Washington, in the presence of both houses of congress.
It is commonly administered by the chief justice of the supreme court,
but this is a matter of precedent only, and any person having authority
to administer such an oath could legally perform the office. As to the
Vice-President, his official oath is not expressly provided for in the
constitution, but it falls within the provision of the last clause of the
sixth article, which requires that "all executive and judicial officers both
of the United States and of the several states, shall be bound by oath
or affirmation to support this constitution." And if he succeeds to the
presidency, he then takes the oath of office prescribed for the President.
With general reference to the oath taken by officers to support the
constitution, it may be said that (except as it regards the officer's per-
sonal obedience to the constitution) it is to be taken as a political oath.
It means that the officer will maintain the supremacy and inviolability
of the constitution against disruption by domestic intrigue or foreign
aggression.
§ 66) INDEPBNDENCB OF THE EXECUTIYB. Ill
IKDEPElfpENOE OF THE EXECUTIVE.
66. Im the exercise of his eonstitutionAl powers and fvnetionsy the
President is an independent, eo-ordinate branch of the ^^▼o'>^*
stent, not snbjeet to the direction or control of either congress
or the oonrts.
The constitution makes the President of the United States the reposi-
tory of all the executive power of the nation, thus constituting him a
separate department of the government, not inferior to the others, but
co-ordinate with them, and independent of them. His acts and deter-
minations, within the sphere of his constitutional powers, cannot be
controlled, questioned, or overruled by the legislative or judicial de-
partments. He is invested with political discretion, and in the exercise
thereof he is responsible to no other person or department of the gov-
ernment. He also has such other incidental privileges and immunities
as are necessary to enable him to exercise his powers and discharge
his duties without interference or hindrance. ''In the exercise of his
political powers he is to use his own discretion, and is accountable only
to his country and to his own conscience. His decision in relation to
these powers is subject to no control, and his discretion, when exercis-
ed, is conclusive." • The exercise by the President of his executive
powers can neither be commanded nor restrained by the ordinary pro-
cess of the courts. Nor can the discharge of his executive duties be
thus compelled, or in any wise interfered with. Thus in the case of
State of Mississippi v. Johnson,** it was held that a writ of injunction
cannot be issued to restrain the President from carrying into execution
an act of congress, on the allegation that the act is unconstitutional.
Nor can the writ of mandamus be issued to compel the President to
perform an act which lies within his political discretion.** And since
the grant of executive powers to the President necessarily implies that
he shall be enabled to exercise them without any obstruction or hin-
drance, it follows that he cannot be liable to arrest, imprisonment, or
detention, while he is in the discharge of the duties of his office, and
for this purpose his person must be deemed, in civil cases at least, to
• 2 Story* Const 1 1509.
1*4 Wall. 475, 18 L. Ed. 437. See, also, Georgia v. Stanton, 6 Wall. 60, 18 L.
Ed. 721. Bee **Injuncii(m,'' Dec. Dig. {Key Vo.) { 85; Cent. Dig. I 156; **Con'
stUuikmal Law;* Dec. Dig. (Key No,) f 68; Cent. Dig. ( 125.
liKarbnry ▼• Madison, 1 Cranch, 137, 2 L. Ed. 60. Bee ^'Mandamut^' Deo.
Dig. {Key So.) I It; Cent. Dig. §1 135, ISi.
tl2 THB FEDERAL EXBCUTIVB. (Ch. 6
possess an ofRdal inviolability.** It is doubtful whether he could be
compelled to appear in court in obedience to the writ of subpoena.
Such a writ was served on President Jefferson on the trial of Aaron
Burr, but he refused to obey it, and the matter was never pressed to a
decision.
The exemption of the President from being controlled or interfered
with by the process of the courts extends also to the heads of depart-
ments and other high executive officers, in so far as relates to matters
in which they are invested with discretion, or political matters, though
not in relation to duties which are merely ministerial, or which do not
involve the exercise of any discretion, and where the rights of private
parties are concerned.** Reference has already been made to this topic
in the first and fifth chapters, in connection with the rule of personal
and political responsibility and the independence of the executive de-
partment.
VETO POWER OF PRESIBEHT.
67. Tke Pv««ldent has eonstitittlonal authority to nesattTe any act or
Joint resolution of congr^mMf by retnmins tho saaie with his
disapprovaL
68. The Toto power is enbjeet to two restrietionei
(a) It mast be ezereised within^^tenf days.
(b) A Teto may be OTermled by tl&e oonenrrent vote of two-thirds of
both honses of eensress.
The constitution provides that every bill passed by the two houses
of congress, and also every order, resolution, and vote to which the
concurrence of both houses is necessary (except on a question of ad-
journment) shall, before it becomes a law, be presented to the Presi-
dent. If he approves it, he shall sign it ; but if not, he shall return it,
with his objections, to the house in which it originated. When a bill
is thus returned with a veto message, the house receiving it shall enter
the President's objections at large on its journal and proceed to recon-
sider the bill. The bill may then be passed over the President's vet6,
by a vote of two-thirds of both houses, the vote being taken by yeas and
nays and the names of those voting for and against the measure being
entered on the journals. If any bill shall not be returned by the Presi-
12 2 Story, Const, i 1569.
i» Kendall v. U. S., 12 Pet. 527. 0 L. Ed. 1181; Marbury v. Madison. 1
Cranch, 137. 2 L. Ed. (50. Bee "Mandamus,*' Dec. Dig. (Key No.) U 7i, 72/
Cent. Dig. || 1S3, 134.
fiS6T-68) TKTO POWER or PHK8IDBNT. 113
«
dent within ten days (Sundays excepted) after it shall have been pre-
sented to him^ it shall become a law in like manner as if he had signed
it, unless congress, by their adjournment, prevent its return, in which
case it shall not become a law.
This power vested in the President is not executive in its nature, but
essentially legislative. It makes him, in effect, a branch of congress,
though only to a limited and qualified extent. It operates as a check on
the enactment of hasty, unwise, or improper laws. The provision
which requires the executive to exercise his veto power within ten days,
if at all, is a very important and substantial limitation upon this power.
For if it were not for this clause, it would be within the power of the
President to prevent or indefinitely suspend all legislation which might
be personally or politically obnoxious to him, by mere inaction, without
being compelled to disclose the ground of his opposition or come be-
fore congress and the country with any explanation of his views. And
then, by way of a counter check, it is provided that congress shall not
rob the executive of his right to exercise this power by terminating its
session before the President can act. A further and very important
check upon congress, in its relation to the executive in this respect, was
rendered necessary by the consideration that the requirement that
"every bill" should be sent to the President for his approval might easily
be evaded by calling the particular measure an "order" or a "resolu-
tion." Hence it was thought good to provide that all orders, resolu-
tions, and votes, to which the concurrence of both houses shall be nec-
essary, save on a question of adjournment, shall take the same course
and be subject to the same veto power as a bill.
Extensive as the veto power is, there is yet one particular in which,
in the opinion of many publicists, it might profitably be extended. That
is, a constitutional amendment might give to the President the authority
to disapprove of any particular part or item of a bill which may appear
to him to be objectionable. At present, the chief magistrate must act
upon the "bill" as a whole. An appropriation bill or a revenue measure
may consist of a great number of separable items, some of which, in
the judgment of the executive, may be unconstitutional or inexpedient.
Yet he must either approve or reject the entire act. He has no power
to veto any individual item.
As to the grounds on which the President may exercise this power,
the constitution prescribes no limitations. He is merely required to
return the bill "with his objections." It is within the scope of his pow-
er, and it is probably one of the purposes for which it was given, that
he should judge of the constitutionality of all proposed legislation. But
Bi..Oon8T.L.(3d.Ed.)— 8
114 THE FEDERAL EXECUTIVE. (Ch. 6
he is not restricted to this grpund of objection, in considering a bill
laid before him. He may also judge of its economic or political wis-
dom, its expediency, its policy, or its relation to other laws or to trea-
ties. In fact, though the ground of his objection should be entirely ar-
bitrary or capricious, or the result of personal feeling or prejudice, still
the constitution does not forbid him to make it the basis of a veto.
This would merely furnish a reason for the attempt to pass the bill
without his approval.
In regard to matters of practice in the signing, approval, and re-
turning of bills, the rules which govern the President and congress are
similar to those which prevail in the case of a state governor dealing
with bills laid before him for his approval or rejection, in connection
with which subject the matter will be more fully discussed. At present
it is only necessary to remark that while the President is required to
evidence his ai^roval of a bill by his signature thereto, there is no pro-
vision of the constitution, nor any just implication therefrom, which
imposes upon him the duty of affixing a date to his signature.**
MII.ITART POWERS OF PBE8IDEHT.
69. The ooastitittioii. prwide* that tkm Preaident shall he ocnniiuuider
in chief ef the army and iiaTj of the Uaited States, and of the
militia of the sereral states when ealled into the aetval service
of the United States*
It is very important, in this connection, to observe the distinction be-
tween the powers and functions of the President and those of congress,
and their mutual relations. The subject is best discussed by considering
it first with reference to the prevalence of a state of peace, and then
in relation to a war footing. In time of peace, the President has two
sets of duties to discharge with reference to the army and navy. First,
he is the commander in chief, and as such must exercise supreme and
unhindered control. Secondly, he "shall take care that the laws be
faithfully executed,'* and in pursuance of this duty he must give due
effect to the acts of congress which concern the military and naval es-
tablishments. Congress has power to raise and support armies, to
provide and maintain a navy, and to make rules for the government and
regulation of the land and naval forces. Under these grants of au-
thority it may clearly regulate the enlistment of soldiers and sailors^
14 Gardner v. Collector, 6 Wall. 489, 18 L. Ed. 88a Set '*SUtute4,** Dec Dig,
(Key yo.) ( 81; Cent. Dig. | SX
§ 69) MILITARY POWERS OF PRESIDENT. 115
prescribe the number, rank, and pay of officers, provide for and regulate
arms, ships, forts, arsenals, the organization of the land and naval
forces, courts-martial, military offenses and their punishment, and the
like. And all these laws and regulations the President is to carry into
effect, not in his character as commander in chief, but as a part of his
general executive duty, and with as great or as little choice of means
and methods as congress may see fit to confide to him. But again, in
virtue of his rank as the head of the forces, he has certain powers and
duties with which congress cannot interfere. For instance, he may
regulate the movements of the army and the stationing of them at vari-
ous posts. So also he may direct the movements of the vessels of the
navy, sending them wherever in his judgment it is expedient. Neither
here nor in a state of war is there any necessary conflict.^* The Presi-
dent has no power to declare war. That belongs exclusively to con-
gress.** But when war has been declared, or when it is recognized as
i« Tbe constitutional power of the President to command the army and navy
and that of congress to *'make rules for the government and regulation of the
land and naral forces** are distinct. The President cannot by military orders
erade the legisLative regulations, and congress cannot by rules and regulations
impair the authority of the President as commander in chief. Swalm y. U.
S.. 28 Ct Gl. 173. And see Hogan v. U. S., 43 Ct 01. 158; Cloud v. U. S.,
43 Ct CI. 69. The President may dismiss an officer from the service of
the army or navy. But by Rev. St. U. S. SS 1220, 1624 (U. S. Oomp. St. 1901,
pp. 868, 1102), it Is provided that no officer of the army or navy, in time of
peace, shall be dismissed from the service, except upon and in pursuance of
the sentence of a court martial to that effect, or in commutation thereof. The
President has power, by and with the advice and consent of the senate, to
displace an officer in the army or navy by the appointment of another person
In hia place. Mullan v. U. S., 140 U. S. 240, 11 Sup. Ct. 788, 35 L. Ed. 489.
But be has no power to revoke an order dismissing an officer from the service
and restoring the discharged officer to his rank. Palen v. U. S., 19 Ct CI. 389.
When the number of officers in a given rank or grade of the regular army is
expressly fixed by law, it is not in the power of the President to make ai)point-
menta in excess of the limits thus fixed. Montgomery v. U. S., 6 Ct. CI. 93.
A retired officer of the army is an "officer of the United States,*' within the
meaning of an act of congress prohibiting such officers from acting as agents
or attorneys for the prosecution of any claim against the United States. In re
Wlntiurop, 81 Ct CI. 35. As to the authority of the secretary of war under an
act of congress for the reorganization and increase of the army, and the power
of the courts to review his actions and decisions, see United States v. Root, 22
App. D. C 419. See "Armp and Navy'' Dec. Dig. {Key No.) H 7, 11, 12; Cent.
Dig. if 7-^, /5, U; **CoMtituiional Law,*' Dec. Dig. {Key No.) { 75; Cent. Dig.
H ISi-lSe; ^'United States,** Dec. Dig. {Key No.) { 1S7; Cent. Dig. | 1S2.
s« Aa the power to declare war Is vested in congress exclusively, the Presl-
116 THB rSDBRAL BXBCUTIYB. (Ch. 6
actually existing, then his functions as commander in chief become of
the highest importance, and his operations in that character are entire-
ly beyond the control of the legislature. It is true that congress must
still "raise and support" the army and "provide and maintain" the navy,
and it is true that the power of furnishing or withholding the necessary
means and supplies may give it an indirect influence on the conduct of
the war. But the supreme command belongs to the President alone.
In theory, he plans all campaigns, establishes all blockades and sieges,
directs all marches, fights all battles.
Articles of War and Army Regulations.
The "articles of war" comprise a code of military law regulating the
discipline and administration of the army and providing for the en-
forcement of the rules thereby established. These articles are enacted
by congress and have the force and authority of statute law, being
ordained in the exercise of the constitutional power of congress to
"make rules for the government and regulation of the land and naval
forces." The "army regulations" are a body of rules having relation
to the details of military law and the order and discipline of the mili-
tary establishment, subordinate to the articles of war and the applicable
statutes of congress, but having the force of law within their own
sphere and so far as they are not inconsistent with legislative enact-
ments. These regulations are not made by congress, but by the secre-
tary of war for the army, and the secretary of the navy for the naval
forces, subject to the approval of the President, from whom they are
supposed to emanate. The authority to make them is based either on
an express grant of power from congress to the executive, or on the
general powers of the President as commander in chief.
Calling Out the Militia.
By an early act of congress (February 28, 1795) it was provided that
•*in case of an insurrection in any state against the government thereof,
\i shall be lawful for the President of the United States, on application
of the legislature of such state, or of the executive (when the legislature
cannot be convened) to call forth such number of the militia of any
other state or states as may be applied for, as he may judge sufficient
to suppress such insurrection." By this act, the power of deciding
whether the exigency has arisen upon which the government of the
United States is bound to interfere is given to the President. He is
to act upon the application of the legislature or of the executive, and
consequently he must determine what body of men constitutes the legis-
lature, and who is the governor, before he can act If there is an arm-
S§ 70-78) TH£ CABINET. 117
ed conflict^ the President must of necessity decide which is the govern-
ment, and which party is unlawfully arrayed against it, before he can
perform the duty imposed upon him by the act.*^
70. Tk« PkesldMii Is AMUted, la the diseliarse of Mb ezeeutlTe diitiM»
bj a eaUAet or mdaimtrj eonsiiitiiic of the HmmU of the sereral
oxoevtlTO devartaMAti.
VI. TkeM ofleen are etjled eoUeetlTely 'HIm oaMBet," aad ladivldiua-
Ij are loiown ae
Ca> ^he aeeretary of state*
Cb) The eeeretarj of the treararjr*
Ce) The aeeretary of the navy. ^
Cd> The aeeretary of war* *
Ce) The attorney ceaeral* ^
Cf) The voetauuiter seaeral* ^ , ^ \
(s) The aeeretary of the Interiovw^ iiCc 1 J
Ch> The aeeretary of acriealtiire* t» 1 m
^ Ct> The aeeretary of eoauaeree aad^lahorw
t2m The eoaatitatioa proTides that the Presldeat may realise the
opinloa in writing of the prinolpal offlleera in eaoh of the ezee-
mttre departments, npon any snhjeet relating to the duties of
has no power to originate a war. But without any declaration of war,
9r before such declaration is made, he may recognize the actual existence of
t state of war, and employ the army and navy against the enemy. The Prize
Cases, 2 Black, 635, 17 L. Ed. 459. A declaration of war by congress does not
Imply an authority to the President to extend the limits of the United States
I7 conqnering the enemy's country. That is, he may take possession of the
enemy's ci^ntry, and hold it, as a means of prosecuting the war, but that
does not make the conquered territory a part of the United States. It could
be annexed to the United St8>.w only by the act of the legislative depart-
ment Fleming ▼. Page, 9 He. 603, 13 L. Ed 176. Or by a treaty of cession
Downes ▼. Bidwell, 182 U. S. 244, 21 Sup. iA. 770, 45 L. Ed. 1068 ; Goetze ▼
United States (G. C.) 108 Fed. 72. For a definition of "war" or a "state of
frar," under the Indian depredation acts, see Dobbs ▼. United States, 33 Gt. 01.
806w The Emancipation Proclamation of President Lincoln was decisiye as to
what was deemed the *'seat of war^ by the President, as it was a military meas-
ure against private property. Blanchard v. United States, 32 Ct. CI. 444. See
'*War,'* Dec. Dig. (Key No,) H i, 6, SO; Cent Dig. |i i, 9, 206; **United Btaten;'
Dec. Dig. iKey }fo.) U 102, 106; Cent, Dig. { B2.
IT Lnther ▼. Borden, 7 How. 1, 12 L. Ed. 581. And see Martin ▼. Mott 12
Wheat 19, 6 L. Ed. 537. Bee **Army and Navy;* Deo. Dig. {Key No.) | 5% ;
Cemi. Dig. ^ 6; **Can8tUutional Law/* Deo. Dig. (Key No.) | 68; Cent. Dig. i 126.
118 THE FEDERAL EXECUTIVE. (Ch. 6
73. The heads of depnrtnienta are the aeents of the Preiident, throned
whom, in matters of administration, he speaks and aots. They
are generally responsible only to the President, and eannot
be oontrolled by eongress or the courts, except in regard to
specific duties laid upon them by law, or the performaaoe of
merely ministerial acts.
It is a noteworthy fact that the provision authorizing the President
to require the written opinions of the cabinet officers is the only refer-
ence made in the constitution (except for that clause which gives con-
gress power to vest the appointment of inferior officers in the heads
of departments) to that very important branch of the executive organ-
ization known as the cabinet. The constitution contemplated the forma-
tion of executive departments, but left their number and character to
be fixed by statute. Accordingly congress has by law established nine
of these departments, erecting them in the following order: The de-
partments of state, war, the treasury, and justice in 1789, the post office
in 1791, the department of the navy in 1798, the department of the
interior in 1849, the department of agriculture in 1889, and that of
commerce and labor in 1903 (32 Stat. 825 [U. S. Comp. St. Supp. 1909,
p. 87]). The heads of the several departments are appointed by the
President, by and with the advice and consent of the senate.
The provision that the President may require the written opinion
of the heads of departments on subjects relating to the duties of their
offices has several times been resorted to, in exact conformity with the
constitution. But the usual practice, from Jefferson's time to the
present, has been for the President to assemble the members of his
cabinet, at stated times or upon extraordinary occasions, and advise
and consult with them, not merely upon subjects relating to the duties
of their several departments, but upon all questions of administrative
policy, both domestic and foreign. But it must be observed that this
is entirely discretionary with the President. It is in him alone that
"the executive power" of the United States is vested, and the constitu-
tion does not declare that he "shall" receive their advice or opinions.
The chief executive is no more legally bound by the recommendations
or opinions of his cabinet than he would be by the suggestions of any
of his personal and unofficial friends.
The heads of departments, each within his own sphere, are the
agents of the President for matters of administration. "The President
speaks and acts through the heads of the several departments in rela-
i§ 70-78) THE CABINET. 119
tion to subjects which appertain to their respective duties/' ^* and in
general, an order, determination, or rule emanating from the head of a
department, in a matter within the scope of his authority and his duties,
is in contemplation of law the act or determination of the President.^*
For example, "in all our foreign relations, the President, in perform-
ing executive acts imposed by treaty stipulations or otherwise, acts
through the department of state and under its official seal ; and when a
warrant or mandate is signed by the secretary of state, it is the act of
the President through the proper executive department of the gov-
ernment." *• So, again, "the secretary of war is the regular constitu-
tional organ of the President for the administration of the military es-
tablishment of the nation ; and rules and orders publicly promulgated
through him must be received as the acts of the executive, and as such
be binding upon all within the sphere of his legal and constitutional au-
thority." "
The head of an executive department has authority to make regula-
tions and issue orders, under the directions of the President, with ref-
erence to the business or administration of his department, which shall
have the force of law to those who are subject to them; but this is
subject to the condition that such orders and regulations do not con-
flict with any act of congress.** The cabinet officers have also, in num-
»• Wilcox ▼. Jackson, 13 Pet. 498, 513, 10 L. Ed. 264 ; U. S. v. Jones, 18 How.
92, 15 L. Ed. 274 ; Lockington y. Smith, Pet. G. C. 466, Fed. Cas. No. 8,448 ;
Button v. U. S., 20 Ct. CI. 423 ; U. S. v. Cutter, 2 Curt C. C. 617, Fed. Cas. No.
14,911 ; In re Neagle (C. C.) 39 Fed. 833, 5 L. R. A. 78 ; Tniltt ▼. United States,
88 Ct. CI. 398. See **United States,'* Dec. Dig. (Key No.) i SI; Cent. Dig. § 19.
!• WolBcy r. Chapman, 101 U. S. 755, 25 L. Ed. 915. See **United States/*
Dec Dig. {Key No.) i SI; Cent. Dig. % 19; **Puhlic Lands,** Deo. Dig. (Key No.)
f 6S; Cent. Dig. § 215.
«• Ex parte Van Hoven, 4 Dill. 411, Fed. Cas. No. 16,858. See ''Extradition,^
Dee. Dig. (Key No.) 8 10; Cent. Dig. i 11.
SI U. 8. ▼. Eliason, 16 Pet 291, 10 L. Ed. 968. The officers of the navy are
not the agents of the secretary of the navy, hut, like the secretary himself, are
the agents and representatives of the President, who is the conunander in chief
of the army and navy ; and any authority which the secretary may exercise
oyer them he exercises solely as the representative of the President McGowan
v. Moody, 22 App. D. C. 148. See "United States,** Dec. Dig. (Key No.) | SS.
22 United States v. Symonds, 120 U. S. 46, 7 Sup. Ct 411, 30 L. Ed. 557 ; Ex
parte Reed, 100 U. S. 13, 25 L. Ed. 538. As to the authority of a cabinet offi-
cer to reverse a decision of his predecessor, or a departmental practice found-
ed <m audi a dedslon, see Lavalette v. United States, 1 Ct. CL 147 ; Payne v.
Honghton, 22 App. D. a 234. See "United States,** Deo. Dig. (Key No.) |S
122 THE FEDERAL EXECUTIVE. (Ch. 6
of it to the chapter relating to executive power in the states.** At
present it is only necessary to call attention to a few points arising un-
der the federal constitution. Although that instrument vests in the
President the power to grant reprieves and pardons, it is held that this
does not prevent congress from granting amnesty, either before legal
proceedings are taken, during their pendency, or after conviction.'*
The pardoning power also includes the power to remit fines, penalties,
and forfeitures, and it may in the last resort be exercised for this pur-
pose by the chief executive, although it is in many cases by the laws of
the United States confided to the secretary of the treasury, with respect
to cases arising under the revenue laws.'*
THE TREATT-MAKIKO POWER.
75. Tke eoiuititiition provides that tHe President sliall have power, by
and with the advioe and oonsent of the senate, to mahe trea-
ties, provided that two-thirds of the senators present ooncnr.
76. All treaties which shall be made nnder the authority of the Unit-
ed States are declared to be the supreme law of the land, and
the jndges in every state shall be bonnd thereby, anything: in
the eonstitntion or laws of any state to the contrary notwith-
standing.
This power embraces the making of treaties of every sort and con-
dition; for peace or war, for commerce or territory, for alliance or
succors, for indemnity, for injuries or payment of debts, for the recog-
nition and enforcement of principles of public law, for the regulation
of immigration and the rights of aliens, for rules of navigation, for
arbitrations, and in short, for all the varied purposes which the policy
or interests of independent sovereigns may dictate in their intercourse
with each other.'* Aside from the limitations and prohibitions im-
posed by the constitution on the federal government, the power of
treaty-making is given to that government, without restraining it to
2» Infra, c. 11, pp. 822-325.
80 Brown r. Walker, 161 U. S. 601, 16 Sup. Ct. 644, 40 L. Ed. 819. See "Cofi-
stitutional Law," Dec Dig. {Key No.) § 58; Cent. Dig, i 87.
«i The Laura (C. C.) 8 Ted. 612 ; Macheca v. U. S. <C. C.) 26 Fed. 845. The
President has no power to Interfere with a public prosecution, except to put an
end to it and discharge the accused ; he has no power to change the proceed-
ings nor the place of trial. United States v. Ck>rrie, Fed. Gas. No. 14,869. 8e0
Pardon,** Dec. Dig. (Key No.) | 4; Cent. Dig. | $.
*> 2 Story, Const § 150&
««
§§ 75-76) THE TREATY-MAKING POWER. 123
particular objects, in as plenipotentiary a form as held by any sover-
eign in any other society. The only questions which can arise in con-
sidering the validity of a treaty are whether it is a proper subject of
treaty according to international law or the usage and practice of civil-
ized nations, and whether it is prohibited by any of the limitations of
the constitution.** But while there is no express limitation on the
power of the President as to the scope or the terms of the treaties which
he may make, yet his authority is subject to certain restrictions neces-
sarily implied from various parts of the constitution. There is an im-
plied limitation which would prevent the political department from en-
tering into any stipulations calculated to change the character of the
government, or to do that which could only be done by the constitu-
tion-making power, or which would be inconsistent with the nature
and structure of the government or the objects for which it was form-
ed. Treaties may be made, and frequently are made, having reference
to commercial intercourse. But the executive could not constitutional-
ly abrogate in this manner the power of congress to "regulate foreign
commerce." •* But the internal polity of the states does not impose
any limitation upon the treaty-making power. Thus, the federal gov-
ernment has constitutional power to enter into treaty stipulations with
foreign governments for the purpose of restricting or abolishing the
property disabilities of aliens or their heirs within the several states.**
And the United States may, by treaty, release to a foreign government
an indebtedness due from that government to a private American citi-
zen; but this will constitute a taking of such citizen's property for
public use, and it will be incumbent upon the government to compensate
him therefor.**
Although a treaty, when concluded, becomes the law of the land,
yet the power of treaty-making is not properly legislative but pertains
to the political department. For this reason it is confided to the Presi-
dent. But, lest the power should be perverted, by his unwisdom or dis-
»» People ▼. Gepke. 5 Cal. 381. Bee **Treaties,*' Dec. Dig. (Key No.) §§ i, 2;
Cent. Dig, %% 1, 2.
»* Geofroy ▼. Rigga, 133 U. S. 258, 10 Sup. Ct 205, 33 L. Ed. 642. See ''Trea-
ties,'* Dec. Dig. (Key No.) H i. «; Cent. Dig. i§ 1, 2.
«» In re Droit d'Aubalne, 8 Op. Attys. Gen. 411 ; KuU v. Kull, 37 Hun (N.
Y.) 476; Fulco ▼. SchuylkUl Stone Oo., 169 Fed. 98, 94 C. C. A. 498. See
*'Treatie$/' Dec Dig. (Key No.) §§ i, 2; Cent. Dig. §§ i, 2; "AHen*," Dec. Dig.
(Key No.) i IS; Cent. Dig. iS ^7-58.
3« Meade ▼. U. S.. 2 Ct. CI. 224. Bee ''Eminent Domain," Dec. Dig. (Key
yo.) H e, 17; Cent. Dig. i§ 5, 90.
124 THB rSDBBAL BXBCUTIYB. (Ch. 6
loyalty, to the destruction of the country, a check is placed upon it by
requiring the ratification of the senate. But it will be observed that
the functions of the senate are only advisory, or at most extend to ac-
cepting or rejecting the work of the President. He alone has the right
to determine whether a treaty shall be made. The senate cannot make
a treaty nor dictate its terms. It might indeed advise the making of a
treaty, but the President would be in no wise bound to heed its recom-
mendations. Nor is he boimd to consult the senate in advance. It may
suggest amendments to a completed treaty, but these must be accepted
by the President to be of any force. But, again, the latter has no pow-
er to make treaties except by and with the advice and consent of the
senate, and with the concurrence of two-thirds of its members present.
Hence a treaty which has not been thus ratified by the senate is wholly
inoperative to affect antecedent laws or rights acquired under them.*'^
The signature of the President is essential to the validity of a treaty ;
and it does not take effect, though ratified by the senate, until he has
signed it.*'
By the law of nations all treaties operating upon purely national
rights, as well those for the cession of territory as for other purposes,
are binding upon the contracting parties, unless it is otherwise provided
in them, from the day they are signed ; the ratification of them relates
back to the time of signing.** But this rule does not apply when the
treaty operates on individual rights. There the principle of relation
does not apply to such rights which were vested before the treaty was
ratified, and in so far as it affects them it is not considered as concluded
until there is an exchange of ratifications.*® If the treaty is self-ex-
ecuting, it takes effect and becomes binding at once.*^ But a treaty
containing provisions to be executed in the future is in the nature of a
contract, and does not become a rule for the courts until legislative ac-
8T u. S. v. Frelinghuysen, 2 Mackey (D. C.) 299. See 'Treaties,'' Dec, Dig.
{Key No.) § i; Cent. Dig. i 4.
»8 Shepard v. Insurance Co. (C. C.) 40 Fed. 341. See 'Treaties," Deo. Dig.
{Key No.) %9; Cent. Dig. | 9.
»» Davis V. Police Jury of Parish of Concordia, 9 How. 280, 13 L. Ed. 138*
Garcia v. Lee, 12 Pet. 511, 9 L. Ed. 1170. See "Treaties,'* Dec Dig. {Key No.}
g 9; Cent. Dig. i 9.
*o Haver v. Taker, 9 WaU. 32, 19 L. Ed. 571; Bush v. U. S., 29 Ot a. 144;
U. S. V. Grand Rapids & I. R. Co., 165 Fed. 297, 91 C. C. A. 265; Beam v.
U. S., 43 Ct CI. 61. See ^Treaties," Dec. Dig. {Key No.) | 9; Cent. Dig. { 9.
41 Foster v. Neilson, 2 Pet 253, 7 L. Ed. 415. See "Treaties," Dec. Dig. {Key
No.) SS i, 9, 12; Cent. Dig. K 1, 9, 12.
8§ 75-76) THE TBEATT-MAKIKQ POWEB. ^ 125
tion shall be had on the subject.^^ If the treaty involves the payment
of money to the foreign power (as in the case of purchase of territory),
the very important question arises whether congress is bound as a mat-
ter of law to make the necessary appropriations, or whether, by refus-
ing to vote the amount required, that body can nullify the treaty. On
this point opinion has always been divided. The position taken by
the house of representatives has negatived the idea that there was any
such compulsion resting upon it. On the other hand, if congress could
thus block the progress of international business wherever appropria-
tions were needed, the President and senate would be stripped of a main
division of their constitutional power to make treaties. The only pos-
sible answer to the question is that it is the duty of congress to give
effect to the treaty by voting the necessary supplies, but that there is
no legal method whatever by which it can be coerced into the perform-
ance of this duty.**
A treaty being the supreme law of the land, any state enactment,
whether constitutional or statutory, which is in conflict with it, whether
made before or after the treaty, must give way to it.** But as regards
acts of congress the case is different. Though made by different
branches of the government, treaties and statutes are of exactly equal
authority. Each is declared to be the "supreme law of the land." As
between two laws which are in conflict, and of equal authority, the rule
is that "leges posteriores priores contrarias abrogant." Consequently,
if the courts are called upon to decide betw^een a treaty and an act of
congress, they will endeavor by construction to remove any repugnancy
between them. But if this cannot be done — ^if there is an irreconcilable
conflict — ^then that law, whether statute or treaty, which is of later
date must repeal or displace that which was earlier.** Such a disre-.
*» In re Metzger, 1 Parker, Cr. R. (N. T.) 108. See **Treaties,'* Deo. Dig
(Key .Vo.) H if 9, 12; Cent. Dig. $f i, P, IZ.
*» On this subject, see 2 Story. Const, i 1840; MUler, Const, p. 181; Tume"
r. American Baptist Missionary Union, 5 McLean, 344, Fed. Cas. No. 14,251.
See •*Treatiesr Dec. Dig. {Key No.) 8 12; Cent. Dig. 1 12.
** Ware v. Hylton, 3 Dall. 199, 1 L. Ed. 568; In re Race Horse (a C.) 70
Fed. 508; Wunderle v. Wunderle, 144 111. 40. 33 N. E. 195, 19 L. R. A. 84;
Gordon v. Kerr, 1 Wash. C. C. 322, Fed. Oas. No. 5,611 ; Lehman v. State (Ind.
App.) 88 N. E. 365. See ^'Treaties,'* Dee. Dig. (Key No.) i 11; Cent. Dig. % 11.
*» Foster r. Nellson. 2 Pet. 253, 7 L. Ed. 415 ; Cherokee Tobacco. 11 Wall.
616, 20 L. Bd. 227; Whitney v. Robertson, 124 U. S. 190, 8 Sup. Ct 456. 31
L. Ed. 386 ; Fong Yue Ting y. U. S., 149 U. S. 698, 13 Sup. Ot. 1016, 37 L. Ed.
905; Ropes t. Clinch, 8 Blatchf. 304, Fed. Cas. No. 12,041; North German
J
126 THB FEDERAL EXECUTIVE. (Ch. 6
gard of the solemn obligations of a treaty as is implied in the enact-
ment of laws inconsistent with it may be a breach of international good
faith ; but with this the courts have nothing to do. Whether a treaty
has been violated by our legislation, so as to furnish a proper occasion
of complaint by a foreign government is not a judicial question. To the
courts it is simply a question of conflicting laws, the later modifying
or superseding the earlier.* • It should also be noted that an award by
arbitrators under a treaty between the United States and another na-
tion, by which the contracting nations agree that the decision of the
tribunal of arbitration shall be a final settlement of all questions sub-
mitted (such as the award of the Behring Sea tribunal), becomes the
supreme law of the land, and is as binding on the courts as an act of
congress."*^ But it is held that vested rights which have accrued under,,
or are guarantied by, a treaty cannot be divested either by an act of
congress or by the actions of the political department of government in
the making of subsequent treaties.*® A court cannot inquire whether
a treaty was properly executed, or whether it was procured by undue
influence.** In the construction and interpretation of a treaty, the
courts will follow that adopted by the executive department unless such
construction is repugnant to the language or purpose of the treaty.^®
Lloyd S. S. Ck). v. Hedden (C. C.) 43 Fed. 17 ; The Welhaven (D. C.) 55 Fed.
80; In re Clinton Bridge, 1 Woolw. 150, Fed. Cas. No. 2,900; Thlngvalla Line
V. U. S., 24 Ct. a. 256. See ''Treaties*' Dec. Dig. {Key No.) § 11; Cent. Dig.
i ii.
4« In re Ah Lung (C. C.) 18 Fed. 28. The courts have no power to set them-
selves up as the Instrumentality for enforcing the provisions of a treaty with
a foreign nation which the government of the United States, as a sovereign
power, chooses to disregard. Botlller v. Domlnguez, 130 U. S. 238, 9 Sup. Ct.
525, 32 L. Ed. 926. See **Oon9tituti(ynal Law,'* Dec. Dig. (Key No.) i 08; Cent,
Dig. 1 125.
*T The La Nlnfa, 75 Fed. 513, 21 C. C. A. 434. See ^'Treaties," Dec Dig. (Key
No.) S IS.
4s Eastern Band of Cherokees v. U. S., 20 Ct CI. 449.
*» Lelghton v. U. S., 29 Ct CI. 288. See "Treaties," Dec. Dig. (Key No.) i 5/
Cent. Dig. i S.
fio Castro v. De Urlarte (D. C) 16 Fed. 93. See "Treaties,** Deo. Dig. (Key
No.) i 7; Cent. Dig. i 7.
ii 77-78) APPOINTMENTS TO OFFIGBi 127
APPOINTMENTS TO OFFICE.
77* Tke Preoident has power ta appoint the diplomatic and oomiilar
asente of the sorenmenty the jndeei of the federal eonrts, and
all other offllcers of the United States, snbjeot to the followins
UmitatioBei
(a) The ofllees to be filled mnet first be created by the constitution
or laws.
(b) Ofileers whose appointment is otherwise provided for in the con«
stitntioU are not subject to the appointing power of the Presi-
dent.
(e) Nominations mnst be snbmitted^t»<^t]io- -senate, which body has
the power, by a majority vote, to reject any of which they do
not approTO.
(d) Congress may by law Test the appointment of inferior offllcers
im the President alone, in the eonrts of law, or in the heads
•f departments.
78. The power of appointing to offllee includes the power of remoTins
from ofllce, with certain restrictions.
With the exception of the small number of offices which are created
by the constitution, it is the right and duty of congress to decide what
offices shall be created and for what purposes. That is a legislative
function. But when the office is broueht into existence, it is for the
executive to choose the incumbent. For, in order to the effective ad-
ministration of the government, it is necessary that those officers, at
least, whose duties are not merely clerical but involve the exercise of
discretion and are political in their character, should be in sympathy
with the executive for the time being. But M the same time it was
deemed necessary to impose a check upon this great power of the
President, lest he should be able, by the unrestrained choice of the fed-
eral officers, to subvert the whole administrative machinery of govern-
ment to his own selfish or disloyal purposes. To this end a power of
rejecting unsuitable nominations has been lodged with the senate.
The offices which are "otherwise provided for" in the constitution
are those of President and Vice-President, presidential electors, and
the members of the senate and house of representatives. To these must
also be added the officers of the two houses of congress, who, according
to the constitution, are to be chosen by the respective houses. All other
officers of the United States are subject to the joint appointing power
of the President and senate, save those inferior officers whose appoint-
ment is intrusted by law to the President alone, or to the courts or the
heads of departments.
128 THB rBDBRAL BXBCUTIVB. (Ch. 6
Who are "inferior officers" within the meaning of the constitution ?
As the term is relative, the question cannot be answered abstractly with
any degree of precision. But it has been said that "the word 'inferior'
is not here used in that vague, indefinite, and quite inaccurate sense
which has been suggested — ^the sense of petty or unimportant; but it
means subordinate or inferior to those officers in whom respectively
the power of appointment may be vested, the President, the courts of
law, and the heads of departments. It is a word having definite rela-
tion to a superior." •* Practically, however, congress has not gone to
this extent in providing for the appointment of inferior officers. As
examples of the distinction which is actually made, we may mention the
fact that postmasters of the first three classes are appointed by the
President and confirmed by the senate, while those of the fourth class
are appointed by the postmaster general ; and commissioned officers of
the navy are likewise appointed by the President subject to the con-
firmation of the senate, while warrant offic^rc qre appointed by the
President alone.** It should be noticed that appointments to office can
be made by the heads of departments only in those cases which con-
gress has authorized by law ; and therefore the appointment of an agent
of fortifications by the secretary of war, there being no act of congress
conferring that power upon that officer, is irregular.**
Another question of much practical importance is as to when an
appointment to office becomes complete, so as to put the appointee be-
yond the arbitrary will of the executive. This question received very
careful consideration in the early and leading case of Marbury v. Madi-
son,** wherein it was declared that when a commission has been sign-
ed by the President, the appointment is final and complete. The offi-
81 Collins T. U. S.. 14 Ct CI. 56a See '*United States;* Dec Dig, {Key No.)
I S5; Cent, Dig. S 22.
52 A clerk of a district court is one of the "Inferior officers" here meant. In
re Hennen, 13 Pet. 230, 10 L. Ed. 138. A receiver of a national bank, who la
appointed by the comptroller of the currency with the concurrence of the secre-
tary of the treasury, is an officer of the United States. Piatt v. Beach, 2 Ben.
303, Fed. Cas. No. 11,215. See "United States," Dec. Dig. (Key No.) §i S5, S6;
Cent. Dig. §§ 22, W.
8» U. S. V. Maurice, 2 Brock. 96, Fed. Cas. No. 15,747. See "United States;'
Dec. Dig. (Key No.) | S6; Cent. Dig. § 2S.
5* 1 Cranch, 137, 2 L. Ed. 60. See, also, U. S. v. Le Baron, 19 How. 73, 15
L. Ed. 525 ; 2 Story, Const t 1546. See '^Officers;* Dec Dig. (Key No.) ^ 19;
Cent. Dig, | 110.
gS 77-78) APFOINTMBMT8 TO OFFIOB. 129
cer has then conferred on him legal rights which cannot be resumed.
Neither a delivery of the commission, nor an actual acceptance of the
ofiicey is indispensable to make the appointment perfect.
We arc next brought to the consideration of the subject of removals
from office. The power of appointment necessarily includes the power
to remove the appointee for cause. But the question which has been
earnestly debated by statesmen and jurists is, where does this power
reside, under the constitution? Is it in the President alone, or must
the senate concur in a removal proposed by the executive, or is the
whole matter within the jurisdiction of congress? On this point the
constitution is entirely silent. But the whole course of executive and
legislative interpretation of the constitution, from the earliest times un-
til now, as well as the settled precedents, have practically determined
that the power to remove public officers, when not otherwise expressly
provided for, resides in the President alone. A complete discussion of
this matter is beyond our present limits, but the reader may consult
the authorities cited in the margin.'* It should be here mentioned,
however, that the construction thus put upon the question was at one
time practically reversed by an act of congress. This was the "Tenure
of Office Act," so called, passed in.l867.'* This statute in effect de-
nied to the President the power to remove public officers without the
consent of the senate. And it provided that, if good cause for the re-
moval of any officer should arise during a recess of the senate, the
President should only have the power to suspend the officer until the
next session of the senate. But this statute was repealed by an act pass-
ed in 1887, which apparently amounts to a concession that the power
of removal in such cases belongs to the President alone.'^
In the case of vacancies happening during the recess of the senate,
the President has power to make appointments to such offices, at
his own pleasure and discretion, but such appointments hold good
OTily until the end of the next session. There is some doubt as to
whether a newly created office, which never has been filled, presents
a case of "vacancy" within the meaning of this provision. In prac-
tice, the question has been decided both ways. But the plain infer-
ences from the context seem to indicate with sufficient clearness that
the constitution originally contemplated only those offices which were
■0 2 Story, Const H 1537~1M4 ; Pom. Ck>nst Law, §f 647-661 ; MUler, Const
pp. 15ft>162.
■« Rev. St U. a i 1767 et seq, •« 24 Stat 500.
Bi^C6n8T.L.(3d.B*d.) — 9
130 THE FEDERAL EXECUTIVE. . (Ch. 6
in existence and filled before the particular recess began.** It has
also been ruled by the courts that if a vacancy in an office occurs dur-
ing the session, but remains unfilled at the end of the session, this is a
case of vacancy "happening" during the recess.** But the President has
no power to anticipate a vacancy and make an appointment in advance
to fill it.*® A. commission issued by the President to fill a vacancy in
an office, during a recess of the senate, continues in force until the end
of the next session of congress, unless sooner determined by the Presi-
dent, even although the person commissioned shall have been in the
meantime nominated to the office, and his nomination rejected by the
senate.** It should further be remarked that the power of removal
from office is a purely executive function and has not been intrusted to
the judicial department of government,** also that where a statute
creates an office and fixes its compensation, the appointing power can
neither increase nor diminish it.** But the power to suspend an offi-
cer without compensation is incidental to the power to appoint and
discharge.**
Civil Service Act and Rules and Tenure of OMce Thereunder.
The civil service law, enacted by congress in 1883,** was intended
to provide a body of civil officers selected solely for competence and
fitness and not for political reasons,** and to protect them against
wholesale removal upon a change in the political complexion of the
administration and from individual ouster from the public service
for merely political considerations. This act is held to be within the
»» 2 Story, Const. § 1659 ; McCrary, Elect { 237.
»» In re Farrow (C. C.) 4 Woods, 491, 3 Fed, 112. See **Vnited States,'^ Dec.
Diff. (Key No.) § S5; Cent. Dig. § 22.
eo McCrary, Elect, i 257.
«i In re Marshalshlp of Alabama (D. C.) 20 Fed. 379. See "United Statea,''^
Dec. Dig. {Key No.) | 55; Cent. Dig. § 22.
«3 Kelm V. United States, 33 Ct CI. 174. See **Unit€d States,** Dec. Dig. (Key^
No.) § S6.
«s Miller T. United States (C. C.) 103 Fed. 413; Whiting v. United States, 35*
Ct a. 291. See **0tflcer8,** Dec. Dig. {Key No.) 1 100; Cent. Dig. i 152; *'Uwit'
ed States,*' Dec. Dig. {Key No.) § S9; Cent. Dig. ^ 25.
64 wertz T. United States, 40 Ct CI. 397. See ''Offlcers,*' Dec. Dig. {Key No.}
i 71; Cent. Dig. i 99.
65 Act Cong. Jan. 16, 1883, c. 27, 22 Stat 403 (U. S. Comp. St 1901, p. 1217).
«« Carr v. Gordon (a C.) 82 Fed. 373. See **VnUe4 States,** Deo. Dig. {Keu
No.) I 55.
S§ 77-78) APPOINTMENTS TO OFFICE. 131
Intimate scope of the general powers of congress.*^ It creates a
civil service commission, to hold competitive examinations and certify
lists of persons thereby shown to be eligible, from among whom the
appointments are to be made. Authority is also given to the com-
mission, to the President, and to the heads of departments under his
direction, to make and promulgate rules regulating the classification
of public servants, the conditions of eligibility, and the matter of pro-
motions, and extending the classified service to employes of the gov-
ernment not originally embraced in it.*® It now embraces practically
all the clerks and subordinate officers of the government, excluding of
course the army and navy and those higher officers whose close
relation to the administration requires them to be in political sympathy
with it.** This statute does not deprive the appointing power of any
right of removal, except on the single ground of failure to contribute
money or services to a political party, nor restrict or limit the President
or the heads of departments in respect to removals from office, save
only in the one particular mentioned;^* but a presidential rule pro-
vides that no removal shall be made without giving the accused notice
and an opportunity to make defense ; this, however, is not a law, and
docs not give the holder of an office a vested right to it within the
protection of the courts,^^ and generally the judiciary will not review
or reverse the action of the executive in removing or dismissing a
clerk or officer.''*
«T Butler v. White (C. C.) 83 Fed. 57a See "United States,** Dec Dig. (Key
So.) f 95.
•• tTnlted States ▼. Wlckersham, 201 U. S. 390, 26 Sup. Ct 469, 50 L. Ed.
796; Carr v. Gordon (C. CX) 82 Fed. 373; United States y. Bowyer, 25 App.
D. C 121. See '^United States;' Dec. Dig, (Key No.) §i 55. S6.
•• See Prlddle t. Thompson (C. C.) 82 Fed. 186 ; Butler v. White {C 0.) 83
Fed. 57& See '^United States^* Dec. Dig. (Keg No,) |i S5, 36.
t« Carr y. Gordon (C. C.) 82 Fed. 373 ; United States y. Taft, 24 App. D. a
95; Brown ▼. United States, 39 Ct Cl. 255. See "United States,** Dec, Dig.
{Key No.) |§ 55, S6.
71 Page ▼. Moffett, 85 Fed. Sa See "United States,** Deo. Dig. (Key Tfo.) |i
SS,3e.
71 United States ▼. Taft, 24 App. D. C. 95; Lellman t. United States, 37 Ct
CL 12& See "United States,** Dec. Dig. (Key No.) U S5, 56.
122 THB FKDBRAL EXECUTIVB. (Cb. 6
79. Thm PiresldMit im not onlj empowered, but lie is required, froan
tlaie to tiae, to k^^^ to eoBsress inf omuttiom of tl&e state of
tke Union, and reoommend to their eonsideration much,
ae 1m shall Jndse neeoMary and enpedient.
Under the first two Presidents of the Republic, it was the custom
for the chief executive to meet the two houses of congress in person,
at the opening of each session, and address them upon the state of
the Union, recommending at the same time such acts of legislation as
he deemed important or necessary. But from the time of Jefferson on,
it has become the invariable practice for the President to make all his
communications to congress, under this clause of the constitution, in
writing. An annual message is prepared by the President and delivered
to congress by his private secretary. And from time to time he sends
to congress special messages relating to particular topics of national
interest, often accompanied by correspondence or other documents.
It is abo usual for congress to request the President to communicate
to it facts or papers in his possession or knowledge wHich bear upon
any subject to which the attention of congress is addressed, either by
way of contemplated legislation or of investigation. These requests
are always complied with, unless in the judgment of the executive the
interests of the nation require that such facts or documents, or the
dealings of the executive department with the subject in hand, should
for the present be kept secret
GONVENINO AND AD JOUBHIN G CONGRESS.
80«| The President may, on extraordinary oeoasions, oonTene hoth
houses of congress or either of them, and in ease of disagree-
ment between them, with respect to the time of adjourn-
ment, he may adjonm them to snoh time as he shall think
proper.
i
^his power is seldom exercised to the extent of calling together
both houses of congress in extra sessions. But it is usual for a newly
inaugurated President to call an extra session of the senate, for the
purpose of confirming the nominations to his cabinet, and considering
other important nominations. As to the power to adjourn congress
in case of a disagreement as to the time of adjourmnent, it is said
that this power is equally as indispensable as that to convene them.
§81) DIPLOMATIG BKLATION8. 133
For it is the only peaceable way of terminating a controversy ^hich
can lead to nothing but distraction in the public councils.^*
DIPLOMATIG REULnOHS.
81* Mj ¥lvt«» of the *■'■■' J--— ^'^^'-g power eombiaed with the powev
to roeelTe the diploauttle agents of foreign soTenuiientSy the
Preeidemt has entire^ eontell. iWWg .thft.. f ftmigt .gfj^tione of the
UaltM States.
The constitution provides that the President "shall receive* ambas-
sadors and other public ministers/' This grant of authority, to-
gether with the treaty-making power, invests the federal executive
mth entire control over the foreign relations of the United States.
It is somewhat remarkable that foreign consuls should not have been
mentioned in this clause. For they do not come under the designation
of "public ministers," not being diplomatic agents, but mere commer-
cial representatives of foreign powers, and yet they exercise very ini-
portant powers within their own sphere of action. But the power of
the executive to receive them and recognize their credentials may
fairly be inferred from other parts of the constitution. And indeed
foreign consuls have never been allowed to discharge any functions
of office until they have received the exequatur of the President.''*
The power to receive foreign ministers necessarily implies the power
in the President to refuse to receive any particular person accredited
to him by a foreign government, whether the ground of his refusal
be that he is unwilling to consider the special subject with relation to
which the diplomatic agent is sent, or because he prefers not to recog-
nize the accrediting authority as a rightful government, or whether his
reasons are merely personal to himself. And after a foreign niinister
has been received by the President, the latter has the power, for rea-
sons satisfactory to himself, to request the accrediting government
to recall the minister, or, in case of refusal or delay in recalling him,
to dismiss him or refuse longer to hold relations with him. But the
most important feature of the President's diplomatic power is the au-
thority to give recognition to the party or persons claiming to be the
rightful government of a foreign country, or to withhold it. The re-
ception of a diplomatic representative is equivalent to a formal recog-
nition by the receiving power that the party or faction sending him is
r« 2 Story, Const i 166& T4 id. f 166S.
134 THE FEDERAL EXECUTIVE. (Ch. 6
at least the de facto government of that country. And in this respect
the constitution appears to give the President unrestrained authority
and consequently unlimited discretion. The question has indeed been
raised whether congress could not, by a solemn declaration, disavow or
repudiate the action of the executive in either giving or withholding
recognition of a de facto government. But as no necessity for such
a course has yet arisen, the question has remained one of abstract in-
terest only, and has never received an authoritative answer. One prin-
ciple, however, is certain and well settled. The determination of the
question which of two opposing governments, each claiming to be the
rightful government of the state or country, is the legitimate power,
does not belong to the courts. The judicial department cannot take
notice of, or recognize, any new government or sovereignty, until if
has been officially recognized by the political departments of the gov-
ernment.^ •
EXECUTION OF THE J^AVn.
82. The President is required by the oonetitiitioii to *Hake eare that
the laws be faithfully eiEeeated.**
The President "is provided with the means of fulfilling this obliga-
tion by his authority to commission all the officers ot the United
States, and, by and with the advice and consent of the senate, to ap-
point the most important of them and to fill vacancies. He is declar-
ed to be commander in chief of the army and navy of the United
States. The duties which are thus imposed upon him he is further
enabled to perform by the recognition in the constitution, and by the
creation by acts of congress, of executive departments, which have
varied in number from four or five to seven or eight, the heads of
which are familiarly called cabinet ministers. These aid him in the
performance of the great duties of his office, and represent him in a
thousand acts to which it can hardly be supposed his personal attention
is called, and thus he is enabled to fulfill the duty of his great depart-
ment, expressed in the phrase that *he shall take care that the laws
TBGelston v. Hoyt, 3 Wheat. 324, 4 L. Ed. 381 ; U. S. v. Palmer, 3 Wheat.
610, 634, 643, 4 L. Ed. 471 ; The Divlna Pastora, 4 Wheat. 52, 4 L. Ed. 512 ;
The Neustra Senora de le Caridad, 4 Wheat. 497, 4 L. E^. 624 ; Rose v. Himely,
4 Cranch, 241, 2 L. Ed. 608 ; Luther v. Borden, 7 How. 1, 12 L. Ed. 581. See
**ComtituHonal Law," Dec. Dig. (Key No.) § 68; Cent. Dig. f 125; Interna-
tional Law,'' Dec. Dig. {Key No.) § 4; Cent. Dig. § 4.
§ 82) EXECUTION OF THE LAWS. 135
be faithfully executed/"^* While congress cannot delegate to the
President any legislative power, yet it may give him the power, upon
ascertaining the existence of a state of facts provided for in the stat-
ute, to suspend the operation of an act of congress.''^
Executive Proclamations.
In English law, a proclamation is "a notice publicly given of any-
thing whereof the king thinks fit to advertise his subjects." In Amer-
ican law, it is a formal and official public notice, issued by the chief
executive in his own name, intended for the notice of all persons who
may be concerned, announcing some statute or treaty, or some public
act or determination, or intended action, of the executive department,
which otherwise might not be so widely or so quickly promulgated.
The making of proclamations is not an assumption of legislative pow-
ers. These documents have not the force of law, although congress
may make the taking effect of an act, or of some of its provisions, de-
pend upon the existence of a state of facts to be ascertained and pro-
claimed by the President. Proclamations are issued on a great variety
of occasions. It is usual in this manner to announce the admission
of a new state into the Union ; the ratification of a treaty with a for-
eign power, when it contains provisions which may affect the dealings
of private persons ; the intention of the United States to maintain a
position of neutrality between contending powers, or the intention of
the government to enforce the neutrality laws with strictness; the
granting of an act of pardon or general amnesty ; the reciprocity fea-
tures of a commercial treaty or tariff act ; and the annual appointment
by the President of a day of public thanksgiving. Perhaps the most
celebrated proclamation ever issued in this country was that by which
President Lincoln announced the emancipation of the slaves. The
same President, in 1861, issued a proclamation of blockade, announcing
his intention to blockade all the ports of the states then in insurrection,
and giving neutral vessels fifteen days from the commencement of ac-
tual blockade to leave those ports.
The authority of the President to issue proclamations is sometimes
derived from acts of congress specifically empowering him to do so
in relation to a particular matter, and in other cases appears to be
derived from his duty to take care that the laws be faithfully executed.
7« In re Neagle, 135 U. S. 1, 10 Sup. €t. 658» 34 L. Ed. 55. See **United
BtateM,** Dee. Dig. {Key No.) i 26; Cent. Dig. § 17.
TT Marshall Field & Co. y. aark, 143 U. S. 649, 12 Sup. Gt. 495, 36 L. Ed.
294. See **Con8titution€a Law," Deo. Dig. (Key No.) | 62; Cent. Dig. § 9i.
136 THB FBDBBAL EXBCUTIVB. (Cb. 6
In regard to the observance of neutrality laws, for instance, it may
not be obligatory upon the President to warn the people of the conse-
quences attending their infraction, but still it is eminently proper for
him, at times when there is danger of a breach of those laws, to ad-
vise all persons of the intention of the government with regard to
their enforcement.
The custom in the United States is that the President shall sign
the proclamation and the secretary of state affix the seal of the United
States and attest it. Such documents are commonly published in the
newspapers, and also printed with the acts and resolutions of con-
gress in the volumes published at the end of each session. But a proc-
lamation, to be effective, need not be given out through the press;
it may take effect when it is signed and sealed, although not actually
published until some days later.'*
Executive Rules and Orders,
Rules and orders promulgated by the President or by the heads of
departments under his authority, relating to the conduct of public
business or to the civil service or other administrative matters, have
not the force of law and are not statutes in any sense ; and although
they are effective for the internal control and government of the ex-
ecutive departments, courts of equity have no jurisdiction or authority
to enforce them.'*
IMPBAOHMEKT.
83. Impeachment proeeedlnss, resvltiiis, upon coniietion, in remoral
from oAoe, maj be Institnted asainet
(a) The President.
* Cb) The Vice-President,
(o) AU civil officers of the United States.
84. The following offenses render the perpetrator liable to prosecn-
tion and trial by impeachment t
/ (a) Treason.
/ (b) Bribery.
\ (c) Other hish crimes and misdemeanors.
o97 Judgment in cases of impeachment shall not extend further than
to removal f roni office and disqnalillcation to held office nnder
the United States.
T» Lapeyre v. United States, 17 Wall. 191, 21 L. Ed. 606. See ••TTor," Dec
Dig. (Key No,) { 29; Cent, Dig, | 203.
7» Morgan v. Nunn (C. C.) 84 Fed. 551; Taylor v. Kercheyal (C. C.) 82 Fed.
497 ; Carr v. Gordon (C. C.) 82 Fed. 873. See *'Vnite4 States,*' Deo. Dig. {Key
No,) §§ S5, S6.
SS 8S-46) DfPSACHMSNT. 137
The federal constitution contains the following provisions relating
to the subject of impeachment: The President, the Vice-President,
and all civil officers of the United States may be removed from office
on impeachment for, and conviction of, treason, bribery, and other high
crimes and misdemeanors. TJie house of represeafcatives has the sole /
power of impeachment, and the senate the sole power to try all im- !
peachmenis. When sitting for that purpose, they are to be on oalk^:
or affirmation* When the President is tried, the chief justice shall
preside. No person shall be convicted without the concurrence of
two-thirds of the senators present. Judgment in case of impeachment
shall not extend further than to removal from office and disqualifica-
tion to hold and enjoy any office of honor, trust, or profit under the
United States ; but the party convicted shall nevertheless be liable and
subject to indictment, trial, judgment, and punishment according to
law. By an express provision of the constitution, the right of trial by
jary does not extend to cases of impeachment.
The persons liable to impeachment under the federal constitution
arc the President, the Vice-President, and "all civil officers of the •
United States." This excludes, in the first place, all private and un-
official persons. In the next place, it excludes all officers of the army,
navy, and marine corps, because they cannot properly be called "civil"
o&cers, and because they are triable for offenses by courts martial and
under the laws of war. It is also settled, by a legislative precedent, that
a senator of the United States is not liable to impeachment. In gener-
al, so far as the matter can be said to be definitely settled, it appears
that the officers liable to this process are those who are commissioned
by the President (as provided by section 3, art. 2, of the constitution)
excepting those employed in the land and naval forces, but including
all the federal judges.**
Treason and bribery are well defined crimes. But the phrase "other
high crimes and misdemeanors" is so very indefinite that practically
it is not susceptible of exact definition or limitation, but the power of
impeachment may be brought to bear on any offense against the con-
stitution or the laws which, in the judgment of the house, is deserving
of punishment by this means or is of such a character as to render
•• Private dttzens are not amenable to Impeachment ; nor can articles of
impeachment be preferred against a person after he has gone out of office.
Bute T. Hill, S7 Neb. 80, 55 N. W. 794, 20 L. B. ▲. 578. Bee ''States.** Deo. Dig
Ur*y Ko.) i 62; Cent. Dig. I 61.
138 THE FEDERAL EXECUTIVE. (Ch. 6
the party accused unfit to hold and exercise his office. It is of course
primarily directed against official misconduct. Any gross malversa-
tion in office, whether or not it is a punishable offense at law, may be
made the ground of an impeachment. But the power of impeachment
is not restricted to political crimes alone. The constitution provides
that the party convicted upon impeachment shall still remain liable
to trial and punishment according to law. From this it is to be infer-
red that the commission of any crime which is of a grave nature,
though it may have nothing to do with the person's official position,
except that it shows a character or motives inconsistent with the due
administration of his office, would render him liable to impeachment.
It will be perceived that the power to determine what crimes are im-
peachable rests very much with congress. For the house, before pre-
ferring articles of impeachment, will decide whether the acts or con-
duct complained of constitute a "high crime or misdemeanor." And
the senate, in trying the case, will also have to consider the same ques-
tion. If, in the judgment of the senate, the offense charged is not im-
peachable, they will acquit; otherwise, upon sufficient proof and the
concurrence of the necessary majority, they will convict. And in
either case, there is no other power which can review or reverse their
decision.'*
The constitution provides that the judgment, in cases of impeach-
ment, shall not extend further than to removal from office and dis-
qualification from further office. Since it also provides that the offi-
sh Where, In an Impeachment proceeding, the act of official delinquency con-
sists in the violation of some positive provision of the constitution or a stat-
ute, which is denounced as a crime or misdemeanor, or where it is a mere
neglect of duty, willfully done, with a corrupt intention, or where the negli-
gence is so gross, or the disregard of duty so flagrant, as to warrant the infer-
ence that it was willful and corrupt, it Is a misdemeanor in office. But where
such act results from a mere error of Judgment or omission of duty, without
the element of fraud, or where the alleged negligence is attributable to a mis-
conception of duty, rather than a willful disregard thereof, it is not impeach-
able, although it may be highly prejudicial to the interests of the state. State
V. Hastings, 37 Neb. 96, 55 N. W. 774. See, further, as to the question what
offenses are impeachable, Pom. Ck>nst. Law, i| 717-727; 1 Story, Const. |f
785, 796-805; Miller, . Const pp. 171, 214. With respect to the Introduction
of evidence and the quantum of proof required to warrant a conviction, im-
peachment is essentially a criminal prosecution; hence the guilt of the ac-
cused must be established beyond a reasonable doubt. State v. Hastings, 37
Neb. 96, 55 N. W. 774. See ^'Statesr Dec. Dig. {Key No.) i 5B; Cent. Dig. | 57.
Si 83-85) IMPEACHMENT. 139
ccrs who are subject to this process shall be removed from office upon
conviction under articles of impeachment, it follows that the party
accused, if he is found guilty, must be adjudged to be removed from
his office. But it rests in the discretion of the senate whether or not
to add to this sentence the judgment of disqualification. The nature
of this punishment is political only. Conviction upon impeachment Is
the single case in which the pardoning power of the President cannot
be exercised.
140 FBDBBAL JURISDICTION. (Ch. 7
FEDERAL JURISDICTION.
86-Sa Courts of the United States.
89. Judicial Power of the United States.
90. United States as a Party.
91. States as Parties.
92-93. Jurisdiction of Supreme Court
91-97. Powers and Procedure of Federal Courts.
98. Removal of Causes.
GOUBT8 OF THE VMIXISD 8TATE8.
86. The oonstitiitio]& provides tlutt the Judlelid power of the United
8tAtes shall be Tested in one snpren&e eonrt and in sneh in-
ferior eonrts as oonsress may f roni time to tin^e establish.
87. The federal Jndieial STStem, as established bj the oonstitntion
and aets of eoni^ress, eompromises:
(a) The snprenie eonrt of the United 8tates*
(b) The oirenit eonrts of appeals.
(e) (gphtt uuiiuii uuiuisy^ ^/.^ I : , I . I
(d) The distriet eonrts.
(e) The eonrt of olain&s.
(f) The eonrt of enstoms appeals.
88. In addition, eoncess has established or anthorised the follow^
ins loeal or special tribnnals, not a part of the federal
Judicial system t
(a) The territorial eonrts.
(b) The eonrts of the District of Colnmbia*
(c) Oonsnlar eonrts.
(d> Conrts-nuurtiaL
Power of Congress to Establish Courts.
The supreme court, being provided for by the constitution, is largely
independent of congress. It could neither be abolished nor stripped
of any part of its original jurisdiction by any act of congress. But
the number of the judges of the supreme court is left to the deter-
mination of congress. The number might be indefinitely increased.
But since a judge of this court'could not be lawfully legislated out of
his office, the number of the judges could not be diminished in any
other way than by providing that vacancies, as they might occur, should
S§M-88) OOUBTS OF THE UNITKD STATES. 141
not be filled up, until the number of judges was reduced to a prescrib-
ed minimum. So the jurisdiction of the court, except in so far as it
is granted by the constitution, is within the control of congress, and
may be enlarged or restricted as that body may determine.
But the courts of the United States inferior to the supreme court
do not derive their judicial powers immediately from the constitution.
They depend for their jurisdiction upon congressional legislation.^
And the discretion of congress in respect to the number, character,
and territorial limits of the courts among which it will distribute the
judicial power of the United States is unrestricted, except as to the
supreme court.* However, congress could not lawfully confer any
part of the federal judicial power on the courts of a state, nor on any
courts not established by its own authority.* Since the judges of all
the federal courts are to hold their offices during good behavior, it
is not within the power of either congress or the President to remove
them at pleasure^ A more difficult question is as to the power to legis-
late a judge out of his office by abolishing the court in which he sits.
This has in fact been done by congress, and the legislative precedent,
as far as it goes, is therefore in favor of the existence of such a power.
The Federal Courts,
The federal system of courts, as at present constituted, consists of
the supreme court of the United States, a circuit court of appeals in
each of the nine circuits, nine circuit courts, sixty-six district courts,
the court of claims, and the court of customs appeals. No mention
is here made of the territorial courts, which are not constitutional
courts, nor of the courts in the District of Columbia.
»
X n. S. T. Hudson, 7 Crauch. 32, 3 L. Ed. 259 ; Sewing-Machine Companies'
Case, 18 Wall. 553, 21 L. Ed. 914; United States y. Barrett (G. G.) 135 Fed.
189. See ^'Courts;' Dec, Dig. {Key No.) { 255; Cent. Dig. % IH.
« U. S. T. Union Pac. R. Go., 98 U. S. 569, 602, 25 L. Ed. 143 ; Gelger v. Ta-
coma Ry. k, Power Go. (G. G.) 141 Fed. 169 ; Peters v. Hanger, 136 Fed. 181.
69 C. G. A. 197 ; North Bloomfleld G. Mln. Go. v. United States, 83 Fed. 2,
27 C. a A. 395 ; McDowell v. Kurtz, 77 Fed. 206, 23 G. G. A. 119. Bee "Courts,'*
Dec Dig. (Key No.) § 258; Cent. Dig. i 79S.
» Martin v. Hunter, 1 Wheat 304, 4 L. Ed. 97; Stearns y. U. S., 2 Paine,
300, Fed. Gas. No. 13,341. But the power to arrest deserting seamen in the
merchant senrice and deliver them on board their vessels Is not a part of the
Judicial power defined by the constitution, and congress had power to confer
it on Justices of the peace. Robertson v. Baldwin, 165 U. S. 275, 17 Sup. Ct.
826^ 41 L. Ed. 715. See ''Courts;* Dec. Dig. (Key No.) H U, 2o8; Cent. Dig.
i7dX
142 FEDERAL JURISDICTION. (Ch. 7"
Territorial Courts.
The territorial courts "are not constitutional courts in which the
judicial power conferred by the constitution on the general govern-
ment can be deposited. They are legislative courts, created in virtue
of the general right of sovereignty which exists in the government,,
or in virtue of that clause which enables congress to make all needful
rules and regulations respecting the territory belonging to the United
States. The jurisdiction with which they are invested is not a part
of that judicial power which is defined in the third article of the consti-
tution, but is conferred by congress in the execution of those general
powers which that body possesses over the territories of the United
States." * Congress may therefore invest the courts of the territories
with as much or as little jurisdiction as it may see fit, or with such
measure as appears reasonable, necessary, and adapted to the local
conditions prevailing. While the organic act for a territory establish-
es, and to some extent limits, the jurisdiction of the territorial courts,
it generally leaves to the control of the territorial legislature such mat-
ters as the regulation of rules of procedure and the forms and modes
of pleading.* The effect of the admission of a territory as a state of
the Union and the erection of federal courts therein is ipso facto to
extinguish the territorial government and the territorial courts as
courts of the general government. But provision is usually made for
continuing the territorial courts as the temporary courts of the state,
and for the transfer to the federal courts of such pending causes as
are properly of federal cognizance.*
« American Ins. Co. ▼. Canter, 1 Pet 511, 7 L. Ed. 242 ; Clinton v. Engle^
brecht, 13 Wall. 434, 20 L. Ed. 659 ; Forsythe ▼. U. S., 9 How. 571, 13 L. Ed.
262 ; Good v. Martin, 95 U. S. 90, 24 L. Ed. 341 ; McAllister v. U. S.. 141 U. S.
174, 11 Sup. Ct 949, 35 L. Ed. 693 ; Wallace v. Adams, 143 Fed. 716, 74 C. C A.
540. See **Court8," Dec, t)ig, (Key No.) i 4^8; Cent. Dig. i IISS.
» Sperling v. Calfee, 7 Mont. 614, 19 Pac. 204. Bee **CoHrt8f'* Dec. Dig. (Key
No.) IS 429, 4S0, 4S2-4S8; Cent. Dig. H IISB-IHZ.
• Amee y. Railroad Co., 4 Dill. 251, Fed. Cas. No. 324; United States y.
Doo-noch-keen, 2 Alaska, 624. The police court of the District of Columbia
is not a court of the United States, within the meaning of the federal consti-
tution. United States y. Mills, 11 App. D. C. 500. As to status of the supreme
court of the District of Columbia see In re MacFarland, SO App. D. O. 365. As
to the establishment of a proyislonal court in Porto Rico by order of the war
department, and afterwards of a United States district court by act of con-
gress, see Basso y. United SUtes, 40 Ct CI. 202; Rlbas y Hijo y. United
States, 194 U. S. 315, 24 Sup. Ct. 727, 48 L. Ed. 994. Bee ''Conrti;' Deo. Dig.
(JTey No.) i 4S1; Cent. Dig. || lH^llJfi.
§§ 86-88) GOUBTS OF THE t7NITED STATES. 143
Consular Courts.
Congress has provided for courts, called "consular courts," in cer-
tain non>christian countries, which are presided over by the United
States consul at the port where the court is held, and which are in-
vested with civil and criminal jurisdiction over Americans in that
place, but proceed without a jury. Their establishment is authorized
by treaties made with foreign countries, granting rights of ex-terri-
toriality to the United States for this purpose. The object is to with-
draw citizens of the United States from the operation of the crude,
barbarous, or uncertain systems of justice there prevailing. It is held
that these are valid courts, and that a judgment of a consular court,
passing sentence of death upon an American seaman for a murder com-
mitted by him within the jurisdiction of the court, is valid, notwith-
standing there was no indictment nor trial by jury, when there was a
fair trial before the consul and four, assessors. The constitution, it was
said, was made for the United States, and not for foreign countries,
and can have no operation outside the limits of the United States.^
Courts-Martial,
Under the power to "make rules for the government and regulation
of the land and naval forces" congress has authority to provide for
the trial and punishment of military and naval offenses in the manner
practiced by all civilized nations, that is, by courts-martial. But these
courts are not a part of the federal judicial system. The power to es-
tablish them is not derived from, nor is it connected with, the third
article of the constitution, defining the judicial power of the United
States; the two powers are entirely independent.* "Not belonging
to the judicial branch of the government, it follows that courts-
martial must pertain to the executive department; and they are in
fact simply instrumentalities of the executive power, provided by
congress for the President as commander in chief, to aid him in prop-
erly commanding the army and navy and enforcing discipline therein,
and utilized under his orders or those of his authorized military rep-
resentatives." • The President is therefore invested with general and
V In re Roes, 140 U. S. 458, 11 Sop. Ct 807, 86 L. Ed. 581. Bee '^Ambaasa-
ion and Consuls/* Dee. Dig. (Key Vo.) 16; Cent. Dig. ii l&'ZO.
• Dynee v. Hoover, 20 How. 65, 15 L. Ed. 888 ; Kurtz y. Moffltt, 116 U. S.
487, 6 Sop. Ct 148, 20 I* Bd. 458 ; Wales v. Whitney, 114 U. S. 584, 5 Sup.
Ct. lOSa 20 L. Bd. 277. Bee '*Army and Vavy;' Deo. Dig, iKey No.) U iS, U;
Cent. Dig. || 89-92.
• 1 Wlnthr. MIL Law (2d Bd.) 68.
144 FBDBRAL JURISDICTION. (Ch. 7
■discretionary power to order statutory courts-martial by virtue of his
capacity as commander in chief, independently of the articles of war
or other legislation of congpress.**
The authority of these courts is strictly limited. A court-martial
has no jurisdiction to try or punish any person who is not in the mili-
tary service or subject to the military law.** The following persons
are subject to their jurisdiction: The officers and men of the army
and navy and marine corps, and the militia when in the actual service
of the United States, retired officers of the army and navy, and cer-
tain classes of civilians who are subject to military discipline only in
time of war. The last category includes such persons as sutlers,
teamsters, newspaper correspondents, hospital officers and attendants,
guides and scouts, and telegraphers.** To these must be added officers
and soldiers retained by law under military jurisdiction after dismissal
or discharge, prisoners under confinement in military prisons under-
going sentences of courts-martial,** and drafted men or conscripts
who have been lawfully ordered to attend a rendezvous and disobey
the summons.**
The provision of the fifth amendment that "no person shall be held
to answer for a capital or otherwise infamous crime, unless on a pre-
sentment or indictment of a grand jury" does not apply to the pro-
ceedings of courts-martial, because "cases arising in the land or naval
forces, or in the militia when in actual service in time of war or pub-
lic danger," are expressly excepted from its operation. But these
courts always exhibit to the accused a charge and specifications, in
the nature of an indictment. And in accordance with the fundamental
principles of justice, he is afforded an opportunity to be heard in his
own defense, to summon witnesses, and to be confronted with the wit-
nesses against him.
to Id. 66. As to composition of conrts-martlal, see Walsh y. U. S., 43 Gt
CI. 225.
11 Wolfe Tone's Case, 27 How. State Tr. 613; Grant v. Gould, 2 H. Bl. 69;
Wise V. Withers, 3 Cranch, 331, 2 L. Ed. 457 ; Ex parte Van Vranken (C. C.)
47 Fed. 888 ; Antrim's Case, 5 Phila. 278, Fed. Cas. No. 495 ; Jones v. Seward,
40 Barh. (N. Y.) 563. See **Armv and Navy," Dec, Dig. (Key No,) § U; Cent.
Dig. § 91,
la 1 Wlnthr. Mil. Law (2d Ed.) 112-142,
18 In re Craig (C. C.) 70 Fed. 969. See "Army and Navy,'* Deo. Dig. (Key
No.) lU; Cent, Dig. § 91,
i« McCall's Case, 5 Phila. (Pa.) 259, Fed. Cas. No. 8,669. See ''Army and
Navy;* Dec. Dig. {Key No.) { U; Cent. Dig. I 91.
§§ 86-88) OOURT0 OF THE UNITBD STATES. 145
Within the sphere of their jurisdiction, the judgments and sentences
of courts-martial are as final and conclusive as those of civil tribunals
of last resort. The sentence of a court-martial, when confirmed, "is
altogether beyond the jurisdiction or inquiry of any civil tribunal
whatever, unless it shall be in a case in which the court had not juris-
diction over the subject-matter or charge [or the prisoner] or one in
which, having jurisdiction over the subject-matter, it has failed to ob-
serve the rules prescribed by the statute for its exercise." " A per-
son imprisoned under the sentence of a court-martial may have a writ
of habeas corpus to inquire into the validity of the custody in which
he is held; but on such a writ the civil court will have no jurisdiction
to consider any question except the jurisdiction of the court-martial
and the validity of its sentence.** But if, in fact, the court-martial
proceeded without any jurisdiction, all its actions will be illegal, and
not only will the party aggrieved thereby be entitled to recover his
liberty upon a writ of habeas corpus, but also it follows that all the
parties to the illegal trial are trespassers upon his rights, and he may
recover damages from them in a proper suit in a civil court by the
verdict of a jury.*^
Military Commissions.
These quasi- judicial tribunals are to be distinguished from courts-
martial. The latter are established only for the government of the
military and naval forces, and subsist in time of peace as well as in
war. But the former are erected only in actual warfare, or where
martial law has been declared, and as an aid to the successful prose-
cution of belligerent (^rations or the enforcement of martial law.
»» Dynes v. Hoover, 20 How. 65, 15 L. Ed. 838 ; In re McVey (D. C.) 23 Fed.
878 ; Vanderheyden v. Yonng, 11 Johns. (N. Y.) 150 ; Mills y. Martin, 19 Johns.
(N. Y.) 7 : Duffleld v. Smith, 3 Serg. & R. (Pa.) 580 ; Mnllan y. U. S., 212 U. S.
516, 29 Sup. Gt 330, 58 L. Ed. 632. Bee **Army and Navy," Dec. Dig. (Key
ffo.) I 47; Cent. Dig. H H, 95.
i« In re BmncMid, 5 Maekey (D. C.) 64; Johnson y. Sayre, 158 U. S. 109, 15
Sap. Ot 773, 39 L. Ed. 914; Barrett y. Hopkins (C. C.) 7 Fed. 812; McGorray
y. Murphy, 80 Ohio St 413, 88 N. B. 881. See '^Habeas Corpus,^* Dec. Dig.
{Key So.) %92; Cent. Dig. | 85.
IT Dynes y. Hooyer, 20 How. 65, 15 L. Bd. 838; Milligran y. Hoyey, 3 Bias.
13, Fed. Cas. No. 9,605. See '^Army and Navy," Dec Dig. (Key No,) | S$;
Cent. Dig. | 76%.
Bi^Oonst.I#.(3d.Ed.) — ^10
146 FEDERAL JURISDICTION. (Ch. 7
JUDIOIAIi POWER OF THE UfHTEP STATES.
89. The coaatitutioa declare* that the Jndioial power of the United
States ihall extend tot
(a) All eases in law or eqvity arising nnder the oonatitntion or
laws of the United States or treaties made nnder their an-
thority.
G») All cases affeotins ambassadorsy other pnblic ministers, and
consuls*
(c) All cases of admiralty and maritime Jnrisdiction.
(d) OontroTcrsies to which the United States shall be a party.
(e> ControTcrsies betnreen tnro or more states.
(f) OontroTcrsies between a state and eitisens of another state.
(s) OontroTcrsies between eitisens of different states.
(h> OontroTcrsies between eitisens of the same state elaimins lands
nnder grants of different states.
(i) OontroTcrsies between a state, or the eitisens thereof, and for-
eign states, eitisens, or subjects.
General Considerations,
The judicial department of the federal government is invested, by
this clause, with powers which are even more extensive than those of
the legislative or executive branch.** It is clothed with jurisdiction
over all controversies which may involve the interpretation of the
national constitution or the enforcement of national laws and treaties,
thus securing, so far as it rests with the courts, the supremacy of the
central government within its proper sphere. And it possesses juris-
diction in all those classes of cases where the intervention of the fed-
eral judiciary is necessary or appropriate to insure the peaceful and
harmonious relations of the states with each other, and to maintain the
rights of citizens of the several states. But further, it was feared that
the courts of the states might be influenced to an undue rigor, or un-
fair discrimination, against citizens of other states or foreigners coming
>• Thlfl damie of the constittitlon is a grant and distribution of the Judicial
power of the United States. State y. Nast, 209 Ma 708, 106 S. W. 568. And
that power embraces all controyersies of a Justiciable nature arising withio
the territorial limits of the nation, no matter who may be the parties thereto,
except 80 far as there are limitations expressed in the constitution on the
general grant of Judicial power. Kansas y. Colorado, 206 U. S. 46, 27 Sup. Gt
665, 51 L. Ed. 966. But this part of the constitution has reference only to the
United States, and not to the states. People y. Botkln, 9 Cal. App. 244, 98
Pac. 861. See •'OfmrUr Dec, Dig. {Key Vo.) % 268; Cent. Dig. i 79$; ''dm-
ititutional Law,*' Dec. Dig. (fey ^o.) f 67; Cent. Dig. % JtS.
§ 89) . JUDICIAL POWER OF THE UNITED STATES. 147
before them as plaintiffs or defendants, and for that reason cases to
which such persons should be parties were, for the most part, taken
within the sphere of federal cognizance, even though they might not
involve the maintenance or application of federal law.
As the jurisdiction and authority of the national courts was not
created or granted by the states, so it cannot be revoked, annulled, re-
stricted, or in any way impaired by state statutes.^*
What are '^Cases'' at Law and in Equity.
It will be noticed that the judicial power of the federal courts is ex-
tended to all "cases" of a particular description. Before there can
be any proper exercise of judicial power, a "case" must be presented
in court for its action; and a case implies parties, an assertion of
rights, or a wrong to be remedied.*'^ And it is further declared to be
the intention of the constitution to restrict the judicial power to cases
in courts of record.** But as the power extends to all cases "in law or
equity," all modes of procedure for the assertion of rights (with the
exception of proceedings in admiralty) must be arranged under one
class or the other, either law or equity. Hence the terms used include
criminal cases, arising under the constitution or laws, as well as civil
issues.'* And so of an examination of witnesses concerning a claim
pending before the commissioner of pensions.*' But proceedings for
the probate of a will or the settlement of the estate of a decedent are
not suits of which the federal courts have jurisdiction, either original
or by removal.**
!• Walte ▼. Santa Cmz, ISI U. S. 802, 22 Sup. Ct 827, 46 L. Ed. 562; But-
ler Bros. Shoe Co. v. United States Rubber Ck)., 156 Fed. 1, 84 C. C. A. 167;
WUIUms T. Crabb, }17 Fed. 193, 54 C. C. A. 218, 58 L. R. A. 425 ; Taylor y.
LoQlsvlUe & N. R. Co., 88 Fed. 850, 81 C 0. A. 687 ; St. Louis A S. F. R. Co.
v. Cross (a 0.) 171 Fed. 480. Bee ''CourtB,'' Deo. Dig. (Key No.) i 259; Cent.
Dig. M 795, 796.
••Mfller, Const, p. 814. The assertion and trial of a claim against the
United States In the court of claims is a ''case.*' In re MacFarland, 30 Appt.
D. a 866. See **C<m8tUutional Law,'' Dec. Dig. {Key No.) f $7; Cent. Dig.
%ltS.
SI Robertson ▼. Baldwin, 165 U. S. 276, 17 Sup. Ct 826, 41 L. Bd. 716. See
'Vaurte,** Dec Dig. (Key No.) i tS7; Cent. Dig. f 794.
t^ Tennessee ▼. Davis, 100 U. S. 267, 25 L. Bd. 64a See **Criminai Law,"
Dee. Dig. (Key No.) i 69; Cent. Dig. f ItS.
ta In re Gross (a C.) 78 Fed. 107. £fee "Courte,** Dee. Dig. (Key No.) i 2S7:
Cent. Dig. if 795* 794.
s« Wahl ▼. Frans, 100 Fed. 680, 40 C C. A. 688, 49 L. R. A. 62 ; Clark ▼. Ovy
(C a) 114 Fed. 783 ; Thlel Detective Service Co. v. McClure (a C.) 180 Fed.
148 FEDERAL JURISDICTION. (Ch. 7
Legislation of Congress.
Although the federal judicial power is defined and granted by the
constitution, its provision, in this respect, was not self -executing. That
is, the judicial power could not come into practical operation until
courts were created by congress and their jurisdiction regulated. The
supreme court is a constitutional court, but it was necessary for con-
gress to make provision for its organization and fix the number of
judges. All the rest of the judicial power of the United States re-
mained to be dealt with by congress. And in creating the courts, con-
gress was under no obligation to occupy the entire field of judicial
power marked out by the constitution. In fact, much of the judicial
power which might be made exclusive in the federal courts still re-
mains concurrent in the state courts. The first act of congress directed
to the organization of the federal system of courts and the regulation
of their jurisdiction was the judiciary act of 1789. One of its authors
was Oliver Ellsworth, afterwards chief justice of the United States.
It is regarded as a contemporaneous exposition of the nature and ex-
tent of the federal judicial power. And though it has often been
amended** or changed in details, yet the framework of the great sys-
tem which it established, and all its essential particulars, remain the
same. It organized the supreme court, with a chief justice and five
associate justices, which number has since been increased to eight.
It provided for three judicial circuits and thirteen judicial districts,
with courts in each. And it apportioned the federal judicial power
among these courts, not, however, filling up the full measure granted
by the constitution. For instance, although a case involved a federal
question, yet it could not, until 1875, be brought in a federal court
unless there was also a diversity of citizenship between the parties.
Jurisdiction of Federal Courts,
As the law now stands, the federal courts have original and exclu-
sive jurisdiction of cases between states or between the United States
and a state; cases against ambassadors and consuls; crimes against
55. See Spencer y. Watkins, 169 Fed. 379, 94 O. C. A. 659; Underground
Electrical Rye. CJo. v. Owsley (O. C.) 169 Fed. 671. See ^'Courts,'' Dec. Dig.
{Key No,) § 260; Cent. Dig. § 792.
25 The Judiciary act of 1887-88 (U. S. Comp. St. 1901, p. 507) was Intended
to contract the Jurisdiction of the federal courts, and in interpreting it all
doubts must be resolved against their Jurisdiction. St. Louis, I. M. & S. R.
Co. V. Davis (C. a) 182 Fed, 629. 8ee '^Courts," Dec. Dig. (Key No.) i 256;
Cent. Dig. § 792.
5 88) JUDICIAL POWSB OIT THB UlilTED BTATX8. 149
the United States ; ** cases under the national bankrupt law ; cases
invcriving patents and copyrights; suits for penalties and forfeitures
tinder federal laws; all civil causes of admiralty and maritime juris-
diction, saving to suitors in all cases the right to a common-law remedy
where the common law is competent to give it; and seizures under
the laws of the United States, on land or waters not within the ad-
miralty and maritime jurisdiction.*^ They have original jurisdiction
of cases arising under the constitution or laws of the United States
or treaties, and also those involving controversies between citizens of
diffeient states, provided the amount in controversy exceeds $2,000.
If the sum in dispute falls below that amount, the state courts have
exclusive jurisdiction,** but the decision of the highest state court is
liable to be reviewed by the United States supreme court on error, if
it is in denial of a right claimed under the constitution or an act of
congress. If the amount exceeds $2,000, the federal courts have con-
current jurisdiction with the state courts in both these classes of cases. ^. .^ . ^
But if the action is originally brought in the state court, it is liable,
under certain conditions to be mentioned hereaf tef; to be removed into
the federal court for trial and determination. The federal judicial
power being limited, the federal courts are to be regarded as courts
of limited (though not inferior) jurisdiction.
The consent of parties cannot confer jurisdiction on the federal
courts where they do not possess it under the constitution and laws.**
Moreover their jurisdiction is territorially limited, a federal court, for
example, having no authority to order the foreclosure sale of land in
another state ; *^ and in certain cases a defendant cannot be sued in a
federal court in any other district than that whereof he is an inhabit-
s« Congress may coDBtitntionally provide that the Jurisdiction of prosecu-
tioos brought for violations of the laws of the United states shall be exdu-
sive in the federal courts. People t. Fonda, 62 Mich. 401, 29 N. W. 26. Bet
''Criminal Later Dec. Dig, (Key No.) §84; Cent. Dig. §§ 116-124.
«7 Rev. St U. S. I 711 (U. S. Ck)mp. St 1901, p. 577).
*• Holt V. Indiana Mfg. Ck>., 176 U. S. 68, 20 Sup. Ct. 272, 44 L. Ed. 374 ; She-
walt^r V. Lexington (C. G.) 143 Fed. 161. But in suits brought by direction of
any officer of the United States, it is sufficient to confer Jurisdiction If the
amount in controversy exceeds $500. Rankin v. Herod (C. G.) 140 Fed. 661.
See **CourUr Dec, Dig. {Key No.) §8 326-328; Cent. Dig. §§ 888-896.
s» Iowa LiUooet Gold Min. Go. v. Bliss (G. G.) 144 Fed. 446. See "CourtBr
Dec Dig. (Key No.) § 23; Cent. Dig. || 75-81.
to Jones ▼. Byrne (G. G.) 149 Fed. 467. See ^Vourts^ Dec, Dig. {Key No.)
i 266; Cent. Dig. if 806-808.
150 FEDERAL JURISDICTION. (Ch, 7
ant.'^ But a federal court, having lawful jurisdiction of a given
case and of the parties, has jurisdiction to determine the entire contro-
versy and all the questions involved in the case.'*
Determination of Jurisdiction.
In a suit in a federal court, the question of jurisdiction is funda-
mental, and may be raised at any time, in any mode, and at every step
in the proceedings, either by the court of its own motion or by the
parties, and such investigation may be instituted as may be necessary
to establish or defeat the court's jurisdiction.**
Equity Jurisdiction.
The federal courts have general jurisdiction in equity (other juris-
dictional requisites being present) in all causes cognizable in equity un-
der the ancient practice of the court of chancery or made so by act
of congress or a statute of the state wherein they sit,** except where
a state law authorizes the equity courts to take cognizance of an action
properly triable at law, in which case the federal courts, preserving
strictly the distinction between law and equity, will remit the party
to his legal action.*' It was provided in the judiciary act of 1789, and
is still the law, that "suits in equity shall not be sustained in either of
the courts of the United States in any case where a plain, adequate,
and complete remedy may be had at law." *• But this is understood to
•1 Barrow S. S. Co. v. Kane, 170 U. S. 100. 18 Sup. Ct. 526, 42 L. E>i. 964.
See ''Courts:' Dec. Dig, {Key No.) S 270; Cent. Dig. | 810.
•« Howe & Davidson Co. v. Haugan (C. C.) 140 Fed. 182; Jew Ho v. WU-
llamson (C. C.) 103 Fed. 10. Bee ''Courts,** Deo. Dig. (Key No.) | 263; Cent.
Dig. §§ 799, 800.
88 Prout V. Starr, 188 U. S. 537, 23 Sup. Ct. 398, 47 L. Ed. 584; Briggs v.
Traders* Co. (C. C.) 145 Fed. 254 ; Krelder t. Cole, 149 Fed. 647. 79 C. C. A.
339 : Central Grain & Stock Exch. v. Board of Trade, 125 Fed. 463, 60 C. C.
A. 299 ; Myers v. Hettinger, 94 Fed. 370, 37 C. C. A. 369 ; Cross v. Evans. 86
Fed. 1, 29 C. C. A. 523. See "Courts," Dec. Dig. (Key No.) § 280; Cent. Dig.
U 816-818.
84 Carrau v. 0*Calllgan, 125 Fed. 657, 60 C. C. A. 347; People's Sav. Bank
V. Layman (C. C.) 134 Fed. 635; Anthony v. Burrow (C. C.) 129 Fed. 783;
Conklln v. United States Shipbuilding Co. (C. C.) 123 Fed. 913. See "Courts,"
Dec. Dig. (Key No.) § 262; Cent. Dig. §§ 797, 798.
85 Scott V. Neely, 140 U. S. 106. 11 Sup. Ct. 712, 35 L. Ed. 358; Whitehead
T. Shattuck, 138 U. S. 146. 11 Sup. Ct 276, 34 L. Eld. 873 ; Davidson v. Calkins
(C. C.) 92 Fed. 230. See "Courts," Dec. Dig. (Key No.) i 262; Cent. Dig. §|
197, 798.
86 Rev. St. U. S. S 723 (U. S. Comp. St 1901, p. 583). And see Brun v. Mann,
151 Fed. 145, 80 C. C. A. 513 ; Jones v. Mutual Fidelity Co. (C. C.) 123 FedL
506. See "Courts," Dec. Dig. (Key No.) § 262; Cent. Dig. §| 797, 798.
S 89) JUDICIAL FOWEK OP THE UNITED STATES. 151
mean that such a remedy at law must have existed in 1789 or must
have been subsequently given or created by act of congress.^^ And
further, the remedy at law must be equally efficient with that in equity
and must be enforceable in the same court and by an action which the
complainant may bring ; it is not sufficient to deprive the federal courts
of jurisdiction that there may be a legal remedy which is maintainable
only in a state court or only by way of defense to an action which the
defendant may bring if he chooses.' •
Ancillary and Incidental Jurisdiction,
A federal court which has lawfully acquired jurisdiction of an action
has jurisdiction of the entire controversy and can judge and deter-
mine all matters necessary to give the parties complete relief, and
hence may entertain ancillary and cross bills without regard to the citi-
zenship of the parties thereto.'* And a suit in equity dependent upon
a former suit, in which the court had jurisdiction, may be maintained
without regard to diversity of citizenship or the existence of a federal
question, when its object is to aid or enjoin the original suit, to con-
strue, restrain, modify, avoid, or enforce the judgment or decree therein
or to enforce liens or claims to property in the custody of the court in
the original suit,** though not to adjudicate the claims of those who
were not parties to or in privity with the original suit, excepting the
case of those who claim an interest in property in the court's custody.*^
•T National Surety Go. v. State Bank, 120 Fed. 5d3, 56 a G. A. 657, 61 L.
B. A. 894 ; Alger v. Anderson (G. G.) 92 Fed. 696 ; Hultberg v. Anderson (a G.)
170 Fed. 657. See •'Courts,*' Dec Dig. {Key No,) | 262; Cent. Dig. §1 797, 798.
ss United States Life Ins. Go. ▼. Gable, 98 Fed. 761, 39 G. G. A. 264 ; Poke-
sama Sngar Pine Lnmber Go. v. Klamath River Lumber & Imp. Go. (G. G.) 96
Fed. d4 ; Goler v. Board of Gom'rs of Stanly Goanty (G. G.) 89 Fed. 257. Bee
•Vourte;' Dec Dig. (Key No.) § 262; Cent. Dig. f§ 797, 798.
St niman t. laeger (G. G.) 155 Fed. 1011 ; Ames Realty Go. v. Big Indian
Hln. Go. (G. G.) 146 Fed. 166 ; Everett v. Independent School Dlst. (G. G.) 102
Fed. 529 ; Kuhn y. Morrison (G. G.) 75 Fed. 81 ; Hobbs Mfg. Go. v. Gk>odlng
(C C.) 164 Fed. 91 ; Brown v. Morgan (G. G.) 163 Fed. 395. See *'Court$," Dec
Dig. {Key No.) i 264; Cent. Dig. | 801.
«• Oonter r. Atlantic Goast Line R. Go., 200 U. S. 273, 26 Sup. Gt. 252, 50
L. EdL 477 ; Campbell v. Oolden Cycle Mln. Co., 141 Fed. 610, 73 G. G. A. 260 ;
Thompeon t. Schenectady Ry. Go. (G. G.) 124 Fed. 274 ; Jenks v. Brewster (G.
C) 96 Fed. 625 ; Wldaman v. Hubbard (G. G.) 88 Fed. 806 ; Washburn y. PuU-
man's Palace-Car Co., 76 Fed. 1005, 21 G. G. A. 598 ; Loy v. Alston (a G. A.)
172 Fed. 90. See '•Courts,'* Dec. Dig. (Key No.) f 264; Cent. Dig. f 801.
41 Campbell ▼. Golden Cycle Mln. Co., 141 Fed. 610, 73 G. G. A. 260. See
••Courter Dec Dig. {Key No.) | 264; Cent. Dig. | 801.
152 rXDBBAL JURISDICTION. (Ch. 7
Thus, when a federal court, by its receiver, has taken possession of the
property of an insolvent corporation, it has jurisdiction, as auxiliary to
the main suit, of all actions and proceedings with respect to the proper-
ty and of all claims by or against the receiver.** The jurisdiction of a
federal court over the subject-matter and the parties to a judgment
which it has rendered includes the power to enforce the judgment,
continues until it is satisfied, and cannot be impaired or abridged by
the laws or judicial decisions of any state.*'
Federal Questions.
The importance of confiding to the federal courts the ultimate de-
cision of all questions arisi^ig under the constitution or laws of the
United States or treaties is easily seen. The orderly and successful
working of government, or even its very existence, depends upon a
fixed and harmonious inteipretation of the organic law and the stat-
utes passed in pursuance of it. But the grant of jurisdiction to the
federal courts over controversies involving federal questions does not
deprive the state courts of the right to construe and apply the federal
constitution or acts of congress whenever they are properly involved
in the cases before them. But the decisions of the federal courts on
these questions are authoritative.
A controversy arises under the constitution when the claim or de-
fense of a party is based on a right or immunity which it secures to
him, as in respect to the provision forbidding the enactment of laws
impairing the obligation of contracts,** or that which forbids the dep-
rivation of property without due process of law,** or the other pro-
*« Porter v. Sabln, 149 U. S. 479, 13 Sup. Ct 1010, 37 L. Ed. 815; Conklln
▼. United States Shipbuilding Ck>. (G. C.) 123 Fed. 913 ; Toledo, etc, R. Co. ▼.
Continental Trust Co., 95 Fed. 407, 36 C. C. A. 155 ; Bowman v. Harris (C. C.)
95 Fed. 917; Kelhl y. South Bend, 76 Fed. 921, 22 C. C. A. 618, 36 L. R. A.
228 ; Lannlng v. Osborne (C. C.) 79 Fed. 657. See *'Court8," Dec. Dig, (Key No.)
1264; Cent Dig. § 801,
«s New Orleans y. Fisher, 180 U. S. 185, 21 Sup. Ct 347, 45 L. £31 485 ; Col-
lin County Nat Bank v. Hughes, 155 Fed. 389, 83 C. C. A. 661 ; Brun v. Mann,
151 Fed. 145, 80 C. C. A. 513, 12 L. R. A. (N. S.) 154. Bee ''Courts,'' Dec. Dig.
{Key No.) | 26i; Cent. Dig § 801.
** Jetton V. University of the South, 208 U. S. 489, 28 Sup. Ct 375, 52 L. Ed.
584 ; Mercantile Trust Co. ▼. Columbus, 203 U. S. 311, 27 Sup. Ct 83, 51 L. Ed.
198 ; Murray v. Charleston, 96 U. S. 432, 24 L. Ed. 760 ; Elklns v. Chicago (C.
C.) 119 Fed. 957; State of Illinois v. Illinois Cent R. Co. (C. a) 16 Fed. 881.
See ''Courts;* Dec. Dig. (Key No.) § 282; Cent. Dig. § 821.
*5 Ex parte Young, 209 U. S. 123, 28 Sup. Ct 441, 52 L. Ed. 714, 13 L. R. A.
(N. S.) 932 ; Gundllng v. Chicago, 177 U. S. 183, 20 Sup. Ct 633, 44 L. Ed. 725 ;
I 89) JUDICIAL FOWBR OF THE UNITED BTATB8. 153
visions of the fourteenth amendment.^* So also where the action
grows out of the action of state officers in refusing to allow one to
vote at a national election/^ But a case also arises under the constitu-
tion or laws of the United States whenever its correct decision as to
the right, privilege, claim, protection or defense of a party depends in
whole or in part upon a correct construction of either.** This applies
to cases arising under the public land laws and the mining laws/*
the laws relating to patents, copyrights, and trade marks,** or the
interstate commerce act.** So also where the plaintiff's right of re-
covery depends on his establishing the unconstitutionality of an act of
Saraimali v. Hoist, 182 Fed. 901, 65 C. C. A. 449 ; Huntington v. New York (G.
C.) 118 Fed. 683; Central of Georgia Ry. CJo. v. Wright (C. O.) 166 Fed. 153.
Bee ^'Courts,** Dec. Dig, (Key No.) § 282; Cent. Dig. § 82S.
4« See Holt ▼. Indiana Mfg. Co., 176 U. S. 68, 20 Sup. €t. 272, 44 L. Ed. 374 ;
Marten v. Holbrook (C. C.) 157 Fed. 716; Moyer v. Peabody (C. C.) 148 Fed.
870. See **Coun8,** Dec. Dig. (Key No.) § 282; Cent. Dig. §§ 820, 822.
«T Swafford v. Templeton, 185 U. S. 487, 22 Sup. Ct 783, 46 L. Ed. 1005.
See Anthony y. Burrow (C G.) 129 Fed. 783 ; Brickhouse v. Brooks (C. 0.)
166 FW. 534. See **CaurUr Dec. Dig. (Key No.) § 282; Cent. Dig. i 820.
49 Cnmmings v. Chicago, 188 U. S. 410, 23 Sup. Ct. 472, 47 L. Ed. 525 ; How-
ard ▼. United States, 184 U. S. 676, 22 Sup. Ct. 543, 46 L. Ed. 754 ; La Abra
Stiver Min. Co. v. United States, 175 U. S. 423, 20 Sup. Ct. 168, 44 L. Ed. 223 ;
Orleans, M. & T. R. Co. v. Mississippi, 102 U. 'S. 135, 26 L. Ed. 96 ; Ten-
T. Davis, 100 U. S. 257, 25 L. Ed. 648; Evans y. Durango Land Co., 80
Fed. 438, 25 C. C. A. 531. See '^Courts;* Dec. Dig. (Key No.) H 282-297; Cent.
Dig. H 820-SS9.
*• Northern Pac. R. Co. y. Soderberg, 188 U. S. 526, 23 Sup. Ct. 365, 47 L.
Ed. 575 ; Shoshone Min. Co. y. Rutter, 177 U. S. 505, 20 Sup. Ct 726, 44 L. Ed.
864; Columbia Val. R. Co. y. Portland A S. R. Co., 162 Fed. 603, 89 C. C. A.
361. See **Court9r Dec. Dig. (Key No.) {§ 285, 286; Cent. Dig. |§ 827-829.
»• Wooster y. Crane, 147 Fed. 515, 77 C. G. A. 211 ; Harrington y. Atlantic
& Pac. TW. Co. (C. C.) 143 Fed. 829; Victor Talking Mach. Co. y. The Fair,
123 IM. 424, 61 C. C. A. 58 ; Atherton Machine Co. y. Atwood-Morrison Co.,
102 Fed. 949, 43 C C. A. 72 ; Illinois Watch-Case Co. y. Elgin Nat Watch Co.,
94 Fed. 667, 35 C C. A. 237 ; Marshall Engine Co. y. New Marshall Engine Co.,
199 Mass. 546, 85 N. B. 741. But a suit relating merely to a contract concern-
ing a patent or copyright does not arise under the federal statutes. SUver v.
Holt (a C.) 84 Fed. 809 ; Pliable Shoe Co. y. Bryant (G. C.) 81 Fed. 521. Nor
does a suit to enjoin state taxes as illegal because levied in effect on patents
or patent rights. Holt v. Indiana Mfg. Co., 176 U. S. 68, 20 Sup. Ct 272, 44
L. Ed. 374. See "^Courts,'* Dec. Dig. (Key No.) §§ 290, 292; Cent. Dig. §§ 8S2-8S4.
ii In re Lennon, 166 U. S. 548, 17 Sup. Ct 658, 41 L. Dd. 1110; Northern Pac.
R. Co. Y. Pacific Coast Lumber Mfr.*s Ass'n, 165 Fed. 1, 91 (X C A. 39. See
"'CowrtM,'' Dec Dig. (Key No.) | 289; Cent. Dig. f 890.
154 FEDERAL JURISDICTION. (Ch. 7
congress.'* And the federal courts may be invested with jurisdiction
of all controversies to which federal corporations are parties, because
all such cases may be said to arise under the laws of the United
States ; "• and so also of suits brought by or against a federal officer
such as the receiver of a national bank.** But the mere fact that the
suit is brought on a judgment recovered in a federal court does not
make it one arising under the constitution or laws of the United States
unless some question is raised distinctly involving the federal constitu-
tion or statutes.** A substantial controversy respecting rights under
the federal constitution or laws, presented by the averments of the
pleadings, is sufficient to support the jurisdiction of a federal court,
irrespective of the actual sufficiency of the facts alleged to justify the
relief sought, or of the facts as they may subsequently turn out.**
And it is no objection to the jurisdiction of the federal court that
questions are involved which are not all of a federal character. If
one of the latter exists in the case, if there be a single such ingredient
in the mass, it is sufficient.*^ And where the subject-matter of the
suit confers jurisdiction on the federal courts, by reason of the case
arising under the federal constitution or laws, the citizenship of the
parties is entirely immaterial.** But it is not enough to confer juris-
diction that a federal question may arise in the case ; it must actually
62Patton Y. Brady, 184 U. S. 60S, 22 Sup. Ct 403, 46 L. Ed. 713. See
*Vourt8,'' Dec. Dig. {Key No.) | 282; Cent. Dig. {| 820-821
Bs Osborn y. Bank of United States, 9 Wheat 738, 6 L. Ed. 204; Supreme
Lodge K. P. y. England, 94 Fed. 369, 36 G. G. A. 298 ; United States Freehold
Land & Emigration Go. y. Gallegos, 89 Fed. 769, 32 G. G. A. 470. See "Courts,**
Dec. Dig, (Key No.) § 29S; Cent. Dig. § 8S5.
54 Auten y. United States Nat. Bank, 174 U. S. 125, 19 Sup. Gt 628, 43 L.
Ed. 920 ; Myers y. Hettinger, 94 Fed. 370, 37 G. 0. A. 369. See 'Vourts,** Dec.
Dig. {Key No.) | 2H; Cent, Dig. i 8S6; **BankB and Banking,** Cent. Dig. §f
1056, 1059.
5» Provident Say. Life Assnr. Soc. y. Ford, 114 U. S. 635, 5 Sup. Ct 1104,
29 L. Ed. 261. See 'Vourts," Dec. Dig. {Key No.) § 284; Cent. Dig. 8§ 820-826.
Be Pacific Electric Ry. Go. y. Los Angeles, 194 U. S. 112, 24 Sup. Gt 586, 48
L. Ed. 896; St Louis, I. M. & S. R. Go. y. Davis (G. G.) 132 Fed. 629. See
*Vowrt8;* Dec. Dig. {Key No.) § 282; Cent. Dig. §§ 820-824.
ST Mayor v. Gooper, 6 Wall. 247, 18 L. Ed. 851. See **Court8,** Dec. Dig. {Key
No.) § 284; Cent. Dig. §§ 820-826.
»• WUder v. Bank, 9 Biss. 178, Fed, Gas. No. 17,651 ; Fischer y. Neil (0. C.)
6 Fed. 89 ; Sawyer v. Parish of Goncordia (O. G.) 12 Fed. 754 ; Lawrence v.
Norton (G. G.) 13 Fed. 1 ; Norfolk Trust Go. v. Marye (G, G.) 25 Fed. 654. See
**Court8;* Dec Dig. {Key No.) | 284; Cent. Dig. § 820.
5 89) JUDICIAL POWER OP THE UNITED STATES. 155
arise and be necessary to the determination of the controversy."* A
suit cannot be said to be one arising under the constitution or laws of
the United States until it has been made to appear in some way on the
face of the record that some title, right, privilege, or immunity, on
which the recovery depends will be defeated by one construction of the
•constitution or laws or sustained by an opposite construction.*® And
when any question arising under the laws of the United States has
been once clearly and unequivocally adjudicated by the supreme court,
it is no longer a proposition for judicial inquiry by the inferior federal
courts. No issue growing out of any statute which has once been so
adjudicated can be said to involve in its determination the construction
of such statute.** The laws enacted by a territory, though subject to
disapproval by congress are not laws of the United States within the
meaning of the term as used in this connection.**
Cases Arising under Treaties.
As the federal government is the only power in this country which
can make treaties, it is proper and necessary that the jurisdiction to
construe them and determine their scope and effect should be confided
alone to the national authorities. A treaty is primarily a compact be-
tween independent nations, and in that aspect of it the courts have
nothing to do with its observance. But it is also the supreme law of
the land, and it may become the foundation of private rights, and when
that is the case, it becomes a proper subject of judicial inquiry and
action.**
•• BoUiDg y. Lersner, 91 U. S. 594, 23 L. Bd. 866 ; Kansas Endowment Ass^n
T. Kansas, 120 U. S. 103, 7 Sup. CL 499, 30 L. Ed. 593 ; McCain v. Des Moines,
174 U. 8. 168, 19 Sup. Ct. 644, 43 L. Ed. 936 ; Wise v. Nixon (C. C.) 78 Fed. 203.
Bee "CourtM," Dec. Dig. (Key No,) i B84; Cent. Dig. | S20.
«• Ames V. Kansas, 111 U. S. 449, 4 Sap. Ct. 437, 28 L. Ed. 482 ; Starln v.
City of New York, 115 U. S. 248, 6 Sup. Ct. 28, 29 L. Ed. 388 ; Germanla Ins.
Co. T. Wisconsin, 119 U. S. 473, 7 Sup. Ct 260, 30 L. Ed. 461 ; Loulsyille v.
Cumberland Tel. Co., 155 Fed. 725, 84 0. C. A. 151. See 'Vourts,** Deo. Dig.
{Key \o.) i 284; Cent. Dig. § 820.
•1 Inez Mln. Co. v. Kinney (C. C.) 46 Fed. 832 ; Blue Bird Mln. Co. v. Largey
<a C.) 49 Fed. 289. See ''Cowtsr Dec. Dig. {Key No.) S 28^; Cent. Dig. § 820.
•s Maxw^l ▼. Federal Gold A Copper Co., 155 Fed. 110, 83 C. C. A. 570. See
^Courier Dec. Dig. {Key No.) | 284; Cent. Dig. f 820.
«s Head Money Cases, 112 U. S. 580, 5 Sup. CL 247, 28 L. Ed. 798 ; Hauen-
stein T. I^nham, 100 U. S. 483, 25 L. Ed. 628 ; Muse v. Arlington Hotel Co.,
168 U. S. 430, 18 Sup. Ct 109, 42 L. Ed. 531. See '^Courts;' Dec. Dig. (Key No.)
I 298; Cent. Dig. § 8k0.
156 FEDERAL JURISDICTION. (Ch. 7
Cases Affecting Ambassadors.
Since the privileges of diplomatic agents are accorded to them as to
their sovereigns or governments, and not for their personal advantage,
it is proper that the courts of the government to which they are ac-
credited, and with which alone they can have official dealings, should
have exclusive cognizance of suits in which they are parties.** Ac-
cordingly the constitution extends the judicial power of the United
States to cases affecting ambassadors, other public ministers, and con-
suls. And. congress, at an early day, enacted that the supreme court
"shall have exclusively all such jurisdiction of suits or proceedings
against ambassadors, or other public ministers, or their domestics or
domestic servants, as a court of law can have consistently with the
law of nations; and original, but not exclusive, jurisdiction of all suits
brought by ambassadors, or other public ministers, or in which a
consul or vice-consul is a party." •• As an ambassador stands in the
place of his sovereign, he is not subject to the municipal laws of the
state to which he is accredited. And as immunity from all accounta-
bility to such laws is necessary to enable him to exercise his diplomatic
functions freely, he can neither be sued in the civil courts nor arrested
and tried for any breach of the criminal laws. This is a rule. of inter-
national law to which there are very few exceptions, if any. The mis-
conduct of a minister can be redressed only by international negotia-
tion, and if he is to be punished, it can be done only by his own coun-
try. But a minister may consent to the prosecution of civil proceed-
ings against him. And the courts are open to him if he desires to
seek redress for injuries committed against him. The official charac-
ter of an ambassador or minister is proved by a certificate from the
secretary of state. This will be accepted by the courts as sufficient,
and if it is produced, they will not go into collateral or arg^umentative
proof.** An indictment for violating the law of nations by offering
violence to the person of a foreign minister is not a case affecting am-
bassadors, within the meaning of the constitution.*^
•4 Davis v. Packard, 7 Pet. 276, 8 L. Bd. 684. See '^Courts,'* Deo. Dig. (Key
Vo,) § SOI; Cent. Dig, § 8^2.
«5 Rev. St. U. S. § 687 (U. S. Comp. St. 1901. p. 565).
•6 In re Balz, 135 U. S. 403, 10 Sup. Ct. 854, 34 L. Ed. 222. 8ee ""Courte,*'
Deo. Dig. (Key Tfo.) | SOI; Cent. Dig, S 842.
•7 u. S. y. Ortega, 11 Wheat 467, 6 L. Ed. 521. See **Onminal Lwio^*' Dec.
Dig. {Key No.) | 9?; Cent. Dig. i US.
§ 89) JUDICIAL FOWSR OF THB UNITBD 8TATS& 157
Admiralty and Maritime Cases.
The court of admiralty was originally so called because it was held
by the Lord High Admiral of England. Its jurisdiction extended to
causes of action (principally criminal) arising on the high seas or on
the coasts or in ports and harbors, but not within the body of any
county. If the matter occurred "infra corpus comitatus," it was sub-
ject to the jurisdiction of the ordinary civil courts, not that of the
admiral. But in respect to the territorial limits of this jurisdiction,
the United States has departed from the English rule. At first, and
for some years, "there was a diversity of opinion between the courts
of the United States as to whether the extent of the jurisdiction con-
ferred by the constitution 'to all cases of admiralty and maritime
jurisdiction' was to be limited; one party contending that it was to
be interpreted by what were cases of admiralty jurisdiction in Eng-
land when the constitution was adopted, and the other party contend-
ing that it was to be as broad as the jurisdiction conferred upon the
admiralty courts as they existed in the colonies and states prior to the
adoption of the constitution. The extent and exact nature of this
jurisdiction were well known to the authors of the constitution when
that instrument was framed. There had been important controversies
between the states as to the extent and nature of the jurisdiction of
their respective admiralty courts ; and the want of an harmonious and
uniform system of administering the admiralty laws was greatly felt,
and one of the chief arguments in favor of the adoption of our
present constitution. The inability of the confederation preceding
our present Union of states to reconcile these conflicts in the jurisdic-
tions of the several states had been made so apparent by one or two
cases which attracted the attention of all the people of the different
states that it was the purpose of the authors of the constitution to vest
in the federal courts of the new government ample power to cure all
these notorious conceded defects." •• In some of the early cases, it
was held that the admiralty courts had no jurisdiction over a vessel
which was engaged exclusively in the navigation of the Mississippi
river and its tributary streams.** But in the case of Waring v.
«• The City of Toledo (D. C.) 73 Fed. 220. Bee '^Admiralty,** Dec. Dig. (Key
Vo.) i i; Cent. Dig. H 1-17.
•• The Orleans v. Phoebus, 11 Pet. 175, 9 L. Ed. 677. The Thomas Jefferson,
10 Wheat 428, 6 L. £kl. 35& See '* Admiralty r Dec. Dig. (Key No.) { 4; • Cent.
Dig. H 4^4^.
158 FSDBRAL JURISDICTION. (Ch. 7
Clarke/® the cause of action arose out of a collision on the Mississippi
river ninety miles above New Orleans, but within tne ebb and flow
of the tide. And it was held that this clause of the constitution was
neither limited to, nor to be interpreted by, what were cases of admi-
ralty jurisdiction in England when the constitution was adopted, and
that in cases of tort or collision as far up a river as the tide ebbs and
flows, the admiralty courts have jurisdiction, although the place may
not be on the high seas, but within the body of a county. And by an
act of 1845, congress extended the jurisdiction to the Great Lakes.
And the supreme court has entirely repudiated the doctrine that "nav-
igable waters" are such only as are affected by the tide, substituting the
rule, as better adapted to the circumstances of our country, that waters
navigable in fact are navigable in law. Thus the admiralty jurisdic-
tion was extended to all public navigable lakes, rivers, and waterways
which are used, or may be used, as highways for commerce to be car-
ried on between states or with foreign nations.'^ But where a damage
done is done wholly upon land, the fact that the cause of the damage
originated on water subject to the admiralty jurisdiction does not make
the case one for the admiralty.*" And although the admiralty jurisdic-
tion of the United States may extend within the boundaries of a state,
following the course of a navigable river or lake, yet it does not de-
prive the state of all jurisdiction over the territory covered by such
navigable water, but only of such portion of its jurisdiction as relates
to admiralty or maritime causes. Hence if a crime against the laws
of the state is committed on such waters, within the limits of the
state, the jurisdiction to try and punish it belongs to the state and not
to the federal admiralty court.^*
The federal admiralty courts may take jurisdiction over foreign
vessels, and their officers and crews, in the ports of the United States,
but are not obliged to do so, and may exercise a discretion in such
cases. "For circumstances often exist which render it inexpedient for
the court to take jurisdiction of controversies between foreigners in
cases not arising in the country of the forum ; as, where they are gov-
To 6 How. 441, 12 L. Ed. 226. See **Admiralty,** Dec Dig. {Key No.) | 4;
Cent. Dig, | 41.
71 The Genesee Chief v. Fltzhogh, 12 How. 448, 18 L. Sd. lOSR Bee ^Ad-
miralty,'* Deo. Dig. (Key No.) § 4; Cent. Dig, 88 38-^9.
Ts The Plymouth, 8 WalL 20, 18 L. Bd. 126. See ** Admiralty,'' Dec Dig. (Key
No.) 14; Cent. Dig, || S8^9.
Ts Scott T. The Young America, Kewb. 101, Fed. Cas. No. 12,549. See ^^Orim-
kwl Lawr Dec Dig. (Key No.) i 86; Cent. Dig. i 12S.
§ 89) JUDICIAL POWER OF THE UNITED STATES. 159
emed by the laws of the country to which the parties belong and there
is no difficulty in a resort to its courts, or where they have agreed to
resort to no other tribunals. The cases of foreign seamen suing for
wages, or because of ill-treatment, are often in this category, and the
consent of their consul or minister is often required before the court
will proceed to entertain jurisdiction. But where the voyage is ended,
or the seamen have been dismissed or treated with great cruelty, it
will entertain jurisdiction even against the protest of the consul. But
although the courts will use a discretion about assuming jurisdiction
of controversies between foreigners in cases arising beyond the terri-
torial jurisdiction of the country to which the courts belong, yet where
such ccmtroversies are communis juris, that is, where they arise under
the common law of nations, special grounds should appear to induce
the court to deny its aid to a foreign suitor when it has jurisdiction of
the ship or party charged." ^* But no suit in rem in admiralty can be
sustained, or seizure made by the marshal, under process against prop-
erty of the United States or of a foreign government, the same being
employed in or devoted to the public service and in the possession of
officers of the government.''*
It should here be noted that the admiralty jurisdiction is an entirely
distinct and separate thing from the power of congress to regulate
commerce. Neither depends at all upon the other. Where the ad-
miralty jurisdiction is invoked, it is the nature of the cause of action
and the place where it arose which must govern, and not the character
of the commerce in which the vessel may be engaged. Thus, for in-
stance, the case of a collision between two ships on a navigable river
or one of the Great Lakes is within the admiralty jurisdiction, not-
withstanding the vessels were trading between ports of the same stat<!
and engaged wholly in internal commerce.''* So also, in respect to th^
natnre of the action, cases of admiralty and maritime jurisdiction ar^
not defined by the constitution, nor do they depend upon it, nor "arise
onder it'* They are determined by the ancient and settled rules of
the admiralty jurisdiction, but are not limited either by the statutes or
T« The Belgenland, 114 U. S. 865, 6 Sup. Ct 800, 29 L. Ed. 162; The Caro-
Una (D. O 14 Fed. 424 ; The Albani (D. O.) 108 Fed. 220. Bee ''Admiralty,'^
Dee. Dig. {Keg Jio.) | 5; Cent. Dig. f 71.
vi Long ▼« The Tunpieo (D. 0.) 16 Fed. 481. Bee **Admiraltg,*' Deo. Dig. (Kep
Ve.) f 6; Cent. Dig. If 9€-9B.
f e The OHmnerce, 1 Blade, 674, 17 L. Bd. 107. Bee **Adm4rQltg/' Dee.
iJI[egVe.)%18j Oemt. Dig. U ^oe-^08.
160 FBDBBAL JURISDICTION. (Ch. 7
•
the judicial decisions of England.^ ^ Although the cause of action may
be created by a state statute, and unknown to the ancient admiralty
law, (as, liens on vessels for certain kinds of supplies or materials,)
yet if it is properly of a maritime nature, the federal courts, sitting in
admiralty, will take cognizance of it and enforce it.''*
The principal subjects of admiralty jurisdiction may be arranged
under two heads, viz., those arising out of maritime torts, and those
arising out of maritime contracts. In cases of the former class, the
jursdiction depends upon locality. That is, the cause of action must
be in the nature of a tort, of civil cognizance, and it must have arisen
on waters subject to the admiralty. In cases of the latter class, the
jurisdiction does not depend at all upon locality, but upon the nature
of the contract. That is, the admiralty courts will have jurisdiction
if the cause of action is founded on a contract which is of a mari-
time nature and relates to maritime business, no matter where it may
have been made.^* The classes of maritime contracts are numerous.
Thus, a policy of marine insurance is a maritime contract and there-
fore of admiralty jurisdiction.** So, also, says Judge Story in the
case cited, arc "charter parties, affreightments, marine h3rpothecations,
contracts for maritime service in the building, repairing, and navigat-
ing ships, contracts between part owners of ships, contracts respect-
ing averages, contributions, and jettisons." It is well settled that a
charter party is a maritime contract,*^ and the same is true of an agree-
ment of consortship between the masters of two vessels engaged in
the business of salving.** Claims for pilotage fees are within the
jurisdiction of the admiralty,** and of course claims by seamen for
wages, and also a claim by shipwrights for work done and material
TT New England Mut. Marine Ins. Co. v. Dunham, 11 Wall. 1, 20 L. Ed. 90.
See ** Admiralty," Dec Dig. (Key No.) 8 1; Cent. Dig, §| 1-17.
T« Ex parte McNiel, 13 Wall. 236, 20 L. Ed. 624; The Lottawanna, 21 Wall.
558, 22 L. Ed. 654. See "Admiralty," Deo. Dig. {Key No.) ^ 1; Cent. Dig. |§
1-17.
TB The Belfast, 7 Wall. 624, 19 L. Ed. 266. See The Mackinaw (D. <X) 165
Fed. 351. See '* Admiralty," Dec. Dig. (Key No.) i 10; Cent. Dig. {§ 131-190.
80 De LoYlo ▼. Bolt, 2 Gall. 398, Fed. Cas. No. 3,776. See '* Admiralty," Dec.
Dig. (Key No.) i 10; Cent. Dig. § lU-
«iThe Fifeshire (D. C) 11 Fed. 743. See "Admiralty," Dec. Dig. (Key No.)
§ 10; Cent. Dig. i 161.
•2 Andrews v. Wall, 3 How. 568, 11 L. BJd. 729. See "Salvage," Deo. Dig.
(Key No.) % 45; Cent. Dig, | 117; "Admiralty," Cent. Dig. SS 126-lSO.
83 Ex parte Hagar, 104 U. S. 520, 26 L. Ed. 816. See "Admiralty," Deo. Dig.
(Key No.) § 13; Cent. Dig, i§ 175, 176.
S 89) JUDICIAL POWER OF THE UNITED STATE8. 161
found in the repair of a vessel employed in plying on navigable wa-
ters.** Again, a bottomry bond is a maritime contract of which ad-
miralty has jurisdiction.*" But an ordinary mortgage of a ship, not
made with any special reference to navigation or the perils of the sea,
is not a maritime contract.**
The constitution does not declare that the jurisdiction of the federal
courts in admiralty and maritime cases shall be exclusive. But by
an act of congress it is provided that the district courts of the United
States shall have jurisdiction "of all civil causes of admiralty and
maritime jurisdiction, saving to suitors in all cases the right of a
common-law remedy, where the common law is competent to give it,
and of all seizures on land and on waters not within admiralty and
maritime jurisdiction. And such jurisdiction shall be exclusive, ex-
cept in the particular cases where jurisdiction of such causes and
seizures is given to the circuit courts; and shall have original and
exclusive cognizance of all prizes brought into the United States." *^
Of this statute it has been said: "Examined carefully, it is evident
that congress intended by that provision to allow the party to seek
redress in the admiralty if he saw fit to do so, but not to make it com-
pulsory in any case where the common law is competent to give him
a remedy." •* State statutes which attempt to confer upon state courts
a remedy for marine torts and marine contracts by proceedings strictly
in rem are void, because in conflict with this act of congress. These
statutes do not come within the saving clause concerning common-law
remedies. But this rule does not prevent the seizure and sale by the
state courts of the interest of any owner in a vessel, by execution or
attachment, when the proceeding is a personal one against such owner,
to recover a debt for which he is personally liable. Nor does it pre-
vent any action which the common law gives for obtaining a judg-
ment in personam against a party liable on a marine contract or tort.**
•< Pejroax v. Howard, 7 Pet. 324, 8 L. Ed. 700. Bee ^'Admiralty;* Dec Dig.
(Key A'o.) | H; Cent. Dig. H 177-180.
•» The Draco, 2 Sumn. 157, Fed. Cas. No. 4,067. See "Admiralty," Dec. Dig.
{Key A'o.) I IS; Cent. Dig. S 18S.
•• Bosart V. The John Jay, 17 How. 399, 15 L. Ed. 05. See *'Admirdltv,*'
Dec Dig. (Key Vo.) 8 15; Cent. Dig. 8 184.
•T Rev. St U. S. §i 503. 711 (U. S. Comp. St. 1901, pp. 455, 577).
it American S. B. Ck>. t. Chace, 16 Wall. 522, 21 L. Ed. 309. See "Admi-
rutty,** Dec Dig. (Key No.) ^2; Cent. Dig. S§ 1&-22.
•• The Hine r. Trevor, 4 Wall. 555, 18 L. Ed. 451. See '^Admiralty,** Dec
Dip. (Key No.) | S; Cent. Dig. §8 ^8-28.
BL.CoNST.Ii.(8D. Ed.) — ^11
ZL
162 FEDERAL JURISDICTION. (Ch. 7
The federal courts have not exclusive jurisdiction of suits in person-
am growing out of collisions between vessels while navigating a river ;
for the right to a common-law remedy is expressly saved to suitors,
and "that there has always been a remedy at common law for damages
by collision at sea cannot be denied," •• A state statute may create
maritime liens in favor of persons who did not before possess such
liens, but cannot authorize their enforcement by proceedings in rem
in the state courts ; that, however, does not prevent their enforcement
in the admiralty courts.*^
Aliens.
The federal jurisdiction attaches to a case where one of the parties
is a foreign state or one of its subjects or citizens and the other is a
state of the Union or one of its citizens. Where |both parties are aliens
the federal courts have no jurisdiction.** An ihtH^n residing within
the United States is not a "foreign citizen or subject" within the
meaning of the constitution, and cannot on that ground maintain a
suit in the federal courts.** But a corporation existing under the laws
of a foreign country is deemed an alien within the meaning of this
clause ; that is, it is presumed to be made up of corporators who are
citizens or subjects of the government which chartered it** An alien
continues to be a "citizen or subject of a foreign state" until he has
been fully naturalized under the laws of the United States. The fact
that he has made his preliminary declaration of intention to apply for
naturalization will not deprive him of the right to sue and be sued in
the federal courts ; nor will the fact that the state in which he resides
has given him the right to vote or such other attributes of citizenship
as lie within the gift of the state.*'* Suits may be maintained in the
federal courts only by "alien friends," that is, citizens or subjects of
ft
•0 Schoonmaker y. Gilmore, 102 U. S. 118, 26 L. Ed. 95. See ''Admiraltv,
Dec. Dig. (Key No.) | 2; Cent. Dig. § 19.
•1 The Menominle (D. C.) 36 Fed. 197. See ** Admiralty,'* Dec. Dig. (Key No.)
f 2; Cent. Dig. §| 25-27.
•2 Montalet v. Murray, 4 Cranch, 46, 2 L. Ed. 545. See "Courts,** Dec. Dig.
(Key No.) § S21; Cent. Dig. § 8^7.
»« Karraboo v. Adams, 1 Dill. 344, Fed. Cas. No. 7,614. See 'Vourts,** Dec
Dig. {Key No.) f S21; Cent. Dig. § 845.
»* Society for the Propagation of the Gospel v. New Haven, 8 Wheat. 464,
5 L. Ed. 662; Carp v. Queen Ins. Co. (C. C.) 168 Fed. 782. See '^Courts**
Dec Dig. {Key No.) % S2t; Cent. Dig. § 849.
»5 Minneapolis v. Reum, 6 C. C. A. 31, 56 F«d. 576. See '*Court$,** Dec Dig.
{Key No.) | 321; Cent, Dig. ( 8^7.
§ 89) JXn>ICIAL FOWEB OF THE UNITED STATES. 163
a foreign nation with which our own country is at peace. It is not ac-
cording to the rules of international law to open the courts to aliea
enemies.
Suits Between Citisens of Different States.
The reason for giving to the federal courts jurisdiction of contro-
versies between citizens of different states was the apprehension that
a citizen sued in the courts of his own state by a non-resident might
be able to prevail unjustly, in consequence of his local influence, or the
prejudice against citizens of other states, or state pride and jealousy.
This has proved to be the largest source of federal jurisdiction.
Cases between citizens of different states very far outnumber all other
classes of actions in the circuit courts. "Citizenship'' and "domicile"
are considered as equivalent, for the purpose of this provision of the
constitution, inasmuch as the causes which led to its introduction de-
pend on the fact of residence in different states, and have nothing to
do with the political aspects of citizenship.** The motive with which
a creditor invokes the jurisdiction of a federal court is immaterial
if he has a justifiable demand and the requisite diversity of citizenship
exists ; '^ and the fact that he removed from one state to another for
the purpose of acquiring the right to sue in a federal court will not
defeat the jurisdiction of that court if his change of domicile was ac-
tual and permanent.**
A citizen of the District of Columbia, or of one of the territories,
not being a "citizen of a state," cannot maintain a suit in the federal
courts against a citizen of a state.** But it is now well settled that for
•• Gassles v. Ballon, 6 Pet 761, 8 L. Ed. 573 ; Shelton v. Tiffin, 6 How. 163,
12 L. Ed. 387. But a husband and wife not living apart under a legal separa-
tion cannot be citizens of different states, for this purpose. Nichols t. Nich-
ols (C. C.) 02 Fed. 1. See **Court8," Dec. Dig, (Key No,) § S07; Cent, Dig.
•T Blair T. Chicago, 201 U. S. 400, 26 Sup. Ct 427, 50 L. Ed. 801. But the
fraudulent or collusive joinder of parties simply for the purpose of making a
case cognizable by the federal court is forbidden by law and requires the dis-
missal of the suit when discovered. Act Oong. March 3, 1875, | 5, 18 St. 472
(U. S. Comp. St. 1901, p. 511) ; Miller v. East Side Canal & Irrigation Co., 211
U. S. 203, 29 Sup. Ct 111, 53 L. Ed. 189 ; Mathieson v. Craven (C. C.) 164 Fed.
471 ; Percy Summer Club v. Astle, 163 Fed. 1, 90 C. C. A. 527. See ''Courts;'
Dee. Dig. (Key No,) U S07, S16; Cent. Dig. {f 854, 862,
•• Wiemer v. Louisville Water Co. (C. a) 130 Fed. 244 ; Gardner v. Sharp,
4 Wash. (C. C.) 609, Fed. Cas. No. 5,236; Robertson v. Carson, 19 Wall. 94, 22
L. Ed. 17& See *'Courti,'' Dec. Dig. (Key No,) § 507; Cent. Dig. § 85k.
00 Hepbom t. Ellzey, 2 Cranch, 445, 2 L. Ed. 332 ; Sere t. Pitot, 6 Cranch,
164 FEDERAL JURISDICTION. (Ch. 7
all purposes of federal jurisdiction a corporation is conclusively con-
sidered to be a citizen of the state which created it, and no averment
or proof as to citizenship of its members elsewhere, offered with a
view to withdrawing the cause from the cognizance of the federal
court, is admissible or material.^®® This, however, does not prevent
the corporation from suing, or being sued by, one of its stockholders^
as such, who resides in another state.^®^ And a corporation created
by the laws of one state, although consolidated with another of the
same name in another state, under the authority of a statute of each
state, is nevertheless, in the former state, a corporation existing under
the laws of that state alone.^®* But an unincorporated voluntary asso-
ciation cannot be a "citizen" of a state, for the purposes of federal
jurisdiction, nor a joint-stock association or limited partnership, though
these latter are accorded many of the privileges and attributes of cor-
porations by the laws of some of the states.^®' In the case of an or-
dinary partnership, the citizenship of all the members of the firm must
be considered, and a federal court will not have jurisdiction if some
of the partners are citizens of the same state with the adverse party.
332» 3 L. Ed. 240; New Orleans v. Winter, 1 Wheat 91, 4 L. Ed. 44; Barney ▼.
Baltimore, 6 WaH. 280, 18 L. Ed. 825 ; Scott v. Jones, 5 How. 343, 12 L. Ed.
181; Cissel v. McDonald, 16 Blatchf. 150, Fed. Cas. No. 2,729; Watson v.
Brooks (C. C.) 13 Fed. 540 ; Hooe v. Jamleson, 166 U. S. 395, 17 Sup. Ct. 596,
41 L. Ed. 1049 ; MaxweU v. Federal Gold & Copper C5o., 155 Fed. 110, 83 C.
O. A. 570 ; McClelland v. McKane (C. C.) 154 Fed. 164 ; Watson v. Bonfils, 116
Fed. 157, 53 C. C. A. 535. See "Courts,'* Dec Dig. {Key No,) f 507; Cent. Dig.
iSJ2,
100 Louisville, C. & C. R. Co. v. Letson, 2 How. 497, 11 L. Ed. 353 ; Chicago &
N. W. Ry. Co. V. Whitton, 13 Wall. 270, 20 L. Ed. 571 ; National S. S. Co. v.
Tugman, 106 U. S. 118, 1 Sup. Ct. 58, 27 L. Ed. 87 ; Shaw v. Qulncy MIn. Co..
145 U. S. 444, 12 Sup. Ct. 935, 36 L. Ed. 768; Bank of U. S. v. Deveaux, 5
Cranch, 61, 3 L. Ed. 38 ; Haight & Freese Co. v. Weiss. 156 Fed. 328, 84 C. C.
A. 224 ; Freeman v. American Surety Co. (C. C.) IIG Fed. 548. See *Vourts,**
Deo. Dig. (Key No.) | 314; Cent. Dig. § 860.
101 Dodge V. Woolsey, 18 How. 331, 15 L. Ed. 401. See **Court8** Dec. Dig.
{Key No.) § S14; Cent. Dig. f 860.
102 Muller v. Dows, 94 U. S. 444, 24 L. Ed. 207; Louisville, N. A. & C. R.
Co. V. Louisville Trust Co., 174 U. S. 552, 19 Sup. Ct. 817, 43 L. Ed. 1081. See
"Courts," Dec. Dig. {Key No.) § SU; Cent. Dig. § 860.
108 Great Southern Hotel Co. v. Jones, 177 U. S. 449, 20 Sup. Ct 690, 44 L.
Ed. 842 ; Fred Macey Co. v. Macey, 135 Fed. 725, 68 C. C. A. 363 ; Chapman v.
Barney, 129 U. S. 677, 9 Sup. Ct. 426, 32 L. Ed. 800 ; Rountree v. Adams Ex-
press Co., 165 Fed. 152, 91 C. a A. 186. See "Oourts;* Deo. Dig. {Key No.) i
S15; Cent. Dig. | 861.
§ 88) jrUDIOIAL POWER OF THE UNITED STATES. 165
though the others are not.^** This is indeed the general rule, — ^that
if there are several plaintiffs or several defendants in the cause, and
the federal jurisdiction is invoked on the ground of diverse citizenship,
it is necessary that all of the parties on one side of the controversy
should be citizens of a different state or states from all of the parties
on the other side; but in ascertaining this fact merely nominal or
formal parties will be excluded from consideration, and the court will,
if necessary, rearrange the parties on opposite sides of the dispute,
according to the facts and according as their interests really lie with
one side or the other, disregarding their nominal position on the rec-
ord.*** Generally speaking, executors, administrators, trustees, and
receivers are not formal or nominal parties, but parties whose personal
citizenship must be considered.^®* But on the other hand, when a
guardian or next friend sues or defends an action, it is the citizenship
of the person whom he represents, and not his own, which must deter-
mine the question of federal jurisdiction.^®^ In order to confer juris-
diction on the federal courts on this ground, the requisite diversity
of citizenship between the parties must appear on the face of the
record.^®*
Land Grants of Different States,
The federal jurisdiction in this class of cases depends partly upon
the citizenship of the parties and partly upon the character of the
particular issue. "It was supposed that where there were grants
under the authority of different states, there would be controversies.
This provision was therefore introduced here for the purpose of
»•* Blum V. Thomas, 60 Tex. 168. See ''Courts,'* Dec. Dig, {Key No.) | 315;
Cent. Dig. f 861,
los Black'8 Dillon on Removal of Causes, Sf 84, 85, 90, where many cases
are citecL And see Kuchler v. Greene (C. C.) 163 Fed. 91. See "Courts,*' Dec.
Dig. {Key No.) §| S08-310; Cent. Dig. f| 855-857.
i-itNew Orleans v. Gaines, 138 U. S. 595, 11 Sup. Ct. 428, 34 L. Ed. 1102;
Wilson V. Smith (C. C.) 66 Fed. 81 ; Coal Co. v. Blatchford, 11 WalL 172, 20
L. Ed. 179 ; Brisenden v. Chamberlain (C. C.) 53 Fed. 307 ; Smith v. Rackliffe,
87 Fed. 964, 31 a a A. 328. See ''Courts,** Dec Dig. {Key No.) | Sll; Cent.
Dig. f 858.
loT Toledo Traction Co. v. Cameron, 137 Fed. 48, 69 C. C. A. 28; Blumen-
thal V. Craig. 81 Fed. 320, 20 C. C. A. 427 ; Voss v. Neineber (C. C.) 68 Fed.
947. See "Courts,** Dec. Dig. {Key No.) | Sll; Cent. Dig, § 858.
!•• Bingham v. Cabot, 3 Dall. 382, 1 L. Ed. 646 ; Jackson v. Ashton, 8 Pet.
148, 8 L. Ed. 898 ; Bailey y. Dozier, 6 How. 23, 12 L. Ed. 32a See "Courts,**
Dee. Dig. {Key No.) | S22; Cent. Dig. |§ 876-881.
166 FEDEBiX JURISDICTION. (Ch. 7
giving the federal courts jurisdiction of that class of cases." ^•^ Some
few cases have heretofore been brought in the courts of the United
States under this provision.^ ^®
UNITED STATES AS A PABTT.
00. The United States, belas » eovereisn and independent nation,
is not liable to be made defendant in any enit or proeeedins
witbont its own eonsent, either in one of its own oonrts or
in the oonrts of a state.m Bnt it mmj, as plaintiff, insti-
tnte prooeodinss against an individnal or a state in any
proper eonrt*
There is one apparent exception to the immunity of the United
States against suits. That is the case of proceedings to appropriate
property to public use under the power of eminent domain. It is ad-
mitted that land within a particular state, purchased and held by the
United States as a mere proprietor, and not appropriated to or de-
signed for any specific use pertaining to the functions of the national
government, may be condemned and appropriated for streets, high-
ways, or other public purposes; and this implies some sort of judicial
proceedings to ascertain and foreclose the interest of the United
io» Mmer, Const. 334.
110 See Town of Pawlet v. Clark, 9 Cranch, 292, 8 L. Ed. 735; Colson v.
Lewis, 2 Wheat. 377, 4 L. Ed. 266. See **Court8," Dec Dig. (Key No.) § S20;
Cent. Dig. { 846.
111 International Postal Supply Co. v. Bruce, 194 U. S. 601, 24 Sup. Ct 820,
48 L. Ed. 1134 ; Ribas y Hijo v. United States, 194 U. S. 315, 24 Sup. Ct. 727,
48 L. Ed. 994 ; Kirk v. United States (C. C.) 131 Fed. 331 ; United States v.
McCrory, 91 Fed. 295, 33 C. C. A. 515 ; Saranac Land & Timber Co. v. Rob-
erts, 195 N. Y. 303, 88 N. E. 753. No executive officer has authority to waive
the exemption of the United States from suit. Stanley v. Schwalby, 162 U.
8. 255, 16 Sup. Ct. 754, 40 L. Ed. 960. The United States may not, without
its consent, be sued by a state. Kansas v. United States, 204 U. S. 331, 27
Sup. Ct. 388, 51 L. Ed. 510. As to suits. against federal officers, and when they
must be dismissed as being In effect against the government itself, see Naga-
nab V. Hitchcock, 202 U. S. 473, 26 Sup. Ct. 667, 50 L. Ed. 1113 ; Oregon v.
Hitchcock, 202 U. S. 60, 26 Sup. Ct. 568, 50 L. Ed. 935 ; Alvarez y Sanches v.
United States, 42 Ct CI. 458; United States v. Lee, 106 U. S. 196, 1 Sup. Ct
240, 27 L. Ed. 171 ; Louisiana v. Garfield, 211 U. S. 70, 29 Sup. Ct 31, 53 L.
Ed. 92 ; Kinney v. Conant, 92 a C. A. 410, 106 Fed. 720. A libel In admiralty
cannot be maintained for salvage services rendered to a vessel owned and
used by the United States in the transport service. The Thomas A. Scott
(D. OL) 90 Fed. 746. But where the government acquires property from a
§ 90) UNITSD STATES AS A FABTT. 16T
States,*** And since, in the administration of government, many
claims accrue to individuals against the United States which ought,
in justice and fairness, to be submitted to the examination of a ju-
dicial tribunal and enforced if found to be valid and legal, the gov-
ermnent has established a court for this purpose, called the "Court
of Claims/' Various acts of congress have referred claims to the arbit-
rament of this tribunal or specified the classes of actions which may
be brought in it. It may give judgment against the United States
if it finds the legal right to be with the claimant. But there is no
way of enforcing its judgments, since no constraint can be put upon
the United States. In practice, however, congress, sooner or later,
always appropriates money to pay such judgments.
As a plaintiff, the United States may institute and maintain a suit
either in one of its own courts, or in the courts of a state, or in those
of a foreign nation, according to the nature of the cause of action
and the circumstances which determine the selection of a forum.^^*
The government is entitled, for the protection of its property, and
without legislative authority, but merely at common law, to all the
civil remedies given to individuals in its courts,^** and its rights can-
party to a pending suit, its rights in such property are subject to the re-
sults, of the Utigatlon, the same as would be those of an individual. Ward
T. Congress Const Co., 99 Fed. 598, 89 C. C. A. 669. Interest is not recov-
erable against the United States in cases where It consents to be sued. Pen-
sell T. United States (D. C.) 162 Fed. 75; United States v. Sargent, 162 Fed.
81. 89 a C. A. 81. See '^United States," Dec. Dig, (Key No.) ff 124, 125; Cent.
Dig. U lll^m.
ii> United States v. Chicago, 7 How. 185, 12 L. Ed. 660; Union Pacific R.
Co. T. Burlington & M. R. Co. (C. C.) 3 Fed. 106 ; Northern Pac. R. Co. v. St
Paul, etc., R. Co. (C. C.) 8 Fed. 702. See **Eminent Domain," Dec. Dig. (Key
No.) i 4S; Cent. Dig. ^ 92.
Ill United States v. Wagner, L. R. 2 Ch. App. 582; Queen of Portugal v.
Glyn, 7 dark & F. 466; United States v. Reid (C. C.) 90 Fed. 522; U. S. v.
AUoi (C C.) 171 Fed. 907. The United States is the real plaintiff, and not
merely a nominal party, in a suit brought in its name for the use and benefit
of a materialman upon the bond of a contractor for a pubUc work. United
States Fidelity & O. Co. v. United States, 204 U. S. 349, 27 Sup. Ct 381, 51
L. Ed. 516. See 'Vourts," Dec Dig, (Key No,) f S02; Cent. Dig. f 84S,
ii« Pooler y. United States, 127 Fed. 519, 62 C. C. A. 317; United States v.
Holmes (a C.) 105 Fed. 41 ; United States ▼. Tygh Val. Land Co. (C. C,) 76
Fed. 693. Bnt the United States cannot sue to enjoin an association of rail-
roads aUeged to be illegal under the interstate commerce law, when none of
the roads was diartered by it and it has no proprietary interest in them. Unit-
ed States T. Joint Traffic Ass*n (a C.) 76 Fed. 895. See **UnUed Statet," Deo.
D4g. (Key No:^ f 12$; Cent. Dig. f 115.
108 FEDERAL. JURISDICTION. (Ch. 7
not be affected by a state law requiring notice to be given or a demand
made as a condition precedent to suit.^^*' But when the government
goes into court as a suitor, its rights and equities are to be determined
on their merits by the same rules governing those of individuals/^*
though the United States is not barred by limitations or by the
laches of its officers/^^ and the defendant cannot recover an affirma-
tive judgment against the government, on a counterclaim, although it
may be determined that there is a balance due to him.^^* The United
States may sue a state and the proper forum for such a proceeding is
the supreme court, which has original jurisdiction of it, as also where
a state sues a United States officer on such a cause of action that the
United States is the real party in interest.^ ^*
STATES AS PARTIES.
91. Sinee the adoption of tlio oloTontli amendmonty m state of the
Uaion oanaot be sued by any private person. But one state
may sne another state, and a state, as plaintiff, may insti-
tute prooeodings against an individnal, and in these oases
the supreme oonrt of the United States has original jnris-
diction.
States as Defendants.
In the case of Chisholm v. Georgia,**® it was ruled that, under the
language of the constitution and of the judiciary act of 1789, a state
11 B McKnlght V. United States. 130 Fed. 059, Go O. C. A. 37. See ''United
Statett," Dec, Dig, (Key No.) f 126; Cent. Dig, | 115.
118 United States v. Walker, 148 Fed. 1022, 79 C. C. A. 392 ; United States v.
Detroit Timber & Lumber Ck)., 131 Fed. 668, 67 C. C. A. 1 ; United States v.
American Surety Co. (C. C.) 110 Fed. 913 ; United States v. Derereux, 90 Fed.
182, 32 C. C. A. 564 ; Lynch v. United States, 13 Okl. 142, 73 Pac. 1095. See
''United States,** Dec, Dig, (Key No.) § 126; Cent. Dig, § 115.
117 United States v. Noojln (D. C.) 155 Fed. 377; Lewis Pub. Co. v. Wyman
(C. C.) 168 Fed. 752. Sec "United States," Dec. Dig, (Key No.) f ISS; Cent.
Dig. §§ 127, 128.
118 United States v. Gillies (C. C.) 144 Fed. 991; United States v. Warren,
12 Okl. 350, 71 Pac. 685. See "United States,** Dec. Dig, (Key No,) { ISO; Cent.
Dig. § 118.
ii» United States v. North Carolina, 136 U. S. 211, 10 Sup. Ct 920. 34 L. Ed.
336; United States v. Texas, 143 U. S. 021, 12 Sup. Ct. 488, 36 L. Ed. 285;
Minnesota v. Hitchcock. 185 U. S. 373, 22 Sup. Ct 050, 46 L. Ed, 954. See
"Courts,** Deo. Dig. (Key No.) § S02; Cent. Dig. { 986.
120 2 Dall. 419, 1 L. Ed. 440. See "Courts,** Dec. Dig. {Key No.) S SOS; Cent.
Dig. § 8U; ^'States,** Cent. Dig. % 191.
S 91) STATES AS PARTIES. 169
of the Union was liable to be sued in the federal courts, against its
will, by a citizen of another state or an alien. This decision occasion-
ed SO much surprise, excitement, and apprehension, that at the first
meeting of congress after its promulgation the eleventh amendment
was proposed, and was in due course adopted. This amendment ac-
tually reversed the decision of the supreme court. It provides that
"The judicial power of the United States shall not be construed to
extend to any suit in law or equity commenced or prosecuted against
one of the United States by citizens of another state or by citizens or
subjects of any foreign state." Long after the date of the amend-
ment, the question was raised whether a state could be sued in a fed-
eral court by one of its own citizens, upon a suggestion that the case
was one arising under the constitution or laws of the United States.
It was ingeniously argued that, under the language of the constitu-
tion, a case so arising is within the federal jurisdiction without any
regard to the character of the parties; that a state is not exempted
under this clause ; and that the eleventh amendment does not deny the
jurisdiction of the federal courts in cases where a state is sued by one
of its own citizens. But the court refused to accede to the reasoning,
and held that the suit would not lie.^^^ It was also argued at one time
that since the eleventh amendment related only to suits "in law or
equity," it did not take away the jurisdiction of the federal courts in
suits in admiralty against a state ; but in the case in which this conten-
tion was raised the supreme court ruled that the suit at bar was not an
admiralty proceeding but a simple personal action against the state
and therefore not maintainable.*** But if a state repudiates or re-
fuses payment of bonds which it has issued, although a private holder
of such bonds cannot maintain any proceedings against the state, yet
he may turn them over by donation to another state, and the latter
state may then sue the defaulting state in the supreme court of the
United States ; **• for, notwithstanding the eleventh amendment, a
isi nans T. Louisiana, 134 U. S. 1, 10 Sup. Gt 504, 33 L. Ed. 842. And see
Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441, .52 L. Ed. 714, 13 L. R. A. (N. S.)
832; Fitts V. McGhee, 172 U. S. 516, 19 Sup. Ct 269. 43 L. Ed. 535. 8ce
^Caurt9,** Dec. Dig, (Key No.) | 303; Cent. Dig. § 8U: "States,*' Cent. Dig.
%191.
"«Bx parte Madrazzo, 7 Pet. 627, 8 L. Ed. 808. 8ee "Courts,** Dec. Dig.
{Key yo.) f 303: Cent. Dig. § 8UV2; "States,** Cent. Dig. § 192.
iss South Dakota v. North Carolina, 192 U. S. 286, 24 Sup. Ct. 269, 48 L.
Ed. 44a See **Courti;* Dec. Dig. {Key No.) ( 30i; Cent. Dig. (f 986, 987.
ITO FBDBRAL JURISDICTION. (Ch. 7
state may be sued without its consent by another state or by the United i
States."*
To bring a case within the eleventh amendment, it is not necessary
that the state should be formally or nominally a party to the suit; it
is enough if the state, though not made a party to the record, is the
real party in interest.**'* But this amendment does not operate to
prevent counties in a state from being sued in the federal courts.**'
And "the immunity from suit belonging to a state, which is respected
and protected by the constitution within the limits of the judicial
power of the United States, is a personal privilege, which it may
waive at pleasure ; so that in a suit, otherwise well brought, in which
a state had sufficient interest to entitle it to become a party defendant,
its appearance in a court of the United States would be a voluntary
submission to its jurisdiction; while, of course, those courts are al-
ways open to it as a suitor in controversies between it and citizens of
other states." "^
Questions frequently arise as to the effect of the eleventh amend-
ment, in actions against state officers, wherein it is alleged that a
law of the state has assumed to violate the obligation of its contracts.
The rule is thus settled: If the suit is brought against the officers
of the state as representing the state's action or liability, or demands
affirmative official action on the part of the defendants to secure the
performance of an obligation which belongs to the state in its political
capacity, the effect is to make the state itself a real party, against which
the judgment will so operate as to compel it to perform its contracts,
and the suit is not maintainable. But if the suit is brought against
ununited States v. North Carolina, 136 U. S. 211, 10 Sop. Ct 920, 34 L.
Ed. 336. See ^'Courts:* Dec, Dig. (Key No,) f S04; Cent. Dig. |§ 986, 987.
"BPoindexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct 903, 962, 29 L. Ed. ^
185 ; Wefltern Union Tel. Co. v. Andrews (C. C.) 154 Fed. 95. See Missouri '
V. Bowles Milling Co. (C. C.) 80 Fed. 161. See "Courts,** Dec. Dig. (Key No.)
§ SOS; Cent. Dig. §{ 8U, 8^4%; ''States,'* Dec. Dig. (Key No.) | 19S; Cent.
Dig. i§ 191, 192.
"« Lincoln County v. Luning, 133 U. S. 529, 10 Sup. Ct. 363, 33 L. Ed. 706;
Camden Interstate Ry. Oo. v. Catlettsburg (C. C.) 129 Fed. 421. See *'Courts,^
Dec. Dig. (Key No.) { SOS; Cent. Dig. § 8^4%; ** States," Cent. Dig. § 19$.
13 r Clark v. Barnard, 108 U. S. 436, 2 Sup. Ct 878, 27 L. Ed. 780; Ounter
y. Atlantic Coast Line R. Co., 200 U. S. 273, 26 Sup. Ct 252, 50 L. Ed. 477.
But a statute giving the consent of the state to be sued in a particular court
of one of Its own counties cannot be construed as authorizing suits against it
in a federal court Smith v. Reeves, 178 U. S. 436, 20 Sup. Ct 919, 44 L. Ed.
1140. See ''States^ Dec. Dig. (Key No.) 1 191; Cent. Dig. |f 179, 180.
§ 91) 8TATB8 AS FABTIE8. 171
defendants who, claiming to act as officers of the state, and under the
color of an unconstitutional statute, commit acts of wrong and injury
to the rights and property of the plaintiff acquired under a contract
with the state, and thus make themselves trespassers and personally
liable, in that case, whether the suit is brought to recover money or
property, or for damages, or for injunction or mandamus, it is not,
within the meaning of the eleventh amendment, an action against the
state.*** This distinction may be further developed by attention to the
following additional rules : Where the suit, although in name against
a state officer, would have the effect of depriving the state of funds or
property in its possession or impose upon it a contractual pecuniary
liability or require the issue of evidences of debt, it is in reality a suit
against the state.*** But on the other hand, a suit against a state offi-
cer, to enjoin him from enforcing a state law or ordinance or a rule
or order of a state administrative board or commission, which is al-
leged to be unconstitutional, and which, if enforced, would injuriously
affect the ccmiplainant in respect to his property or rights, and in
which the state has no interest other than the purely theoretical in-
terest of seeing its legislative acts sustained and enforced, is not a
suit against the state but against the officer, and may be maintained
is« Pennoyer t. Mc€k>nnanghy, 140 U. S. 1, 11 Sup. Ot. 699, 85 L. E<L 363;
In re Ayers, 123 U. S. 443, 8 Sup. Ct 164. 31 L. Ed. 216 ; Hagood ▼. Southern,
117 U. S. 52, 6 Sup. Ct. 608, 29 L. Ed. 805 ; Osborn v. Bank of U. S., 9 Wheat
738, 6 L. Ed. 201 ; Anton! v. Greenhow, 107 U. S. 769, 2 Sup. Ct 91, 27 L. Ed.
468; Davis y. Gray, 16 Wall. 203, 21 L. Ed. 447; Board of Liquidation t. Mc-
Comb, 92 U. S. 531, 23 L. Ed. 623 ; Polndexter v. Greenhow, 114 U. S. 270, 5
Sop. Ct 003, 962, 29 L. Ed. 185 ; Louisiana r. Jumel, 107 U. S. 711, 2 Sup. Ct
128, 27 L. Ed. 448 ; Cunningham y. Macon & B. R. Co., 109 U. S. 446, 3 Sup.
Ct 292, 609, 27 L. Ed. 992 ; U. S. y. Lee, 106 U. S. 196, 1 Sup. Ct 240, 27 L. Ed.
171 ; Western Union Tel. Co. v. Andrews (C. C.) 154 Fed. 95 ; Mutual L. Ins.
Co. T. Boyle (C. C.) 82 Fed. 705; U. S. v. Hadley (C. C.) 171 Fed. 118; Saranac
Land & Timber Co. v. Roberts, 195 N. Y. 303, 88 N. E. 753 ; Western Union
Tel. Co. V. Julian (C. C.) 169 Fed. 166. See **Court8," Dec. Dig, (Key No.) {
SOS; Cent. Dig. f 8W/j; "States^' Cent. Dig. % 192.
"» Smith V. Reeves. 178 U. S. 436, 20 Sup. Ct 919, 44 L. Ed. 1140; Western
Union Tel. Co. v. Andrews (C. C.) 154 Fed. 95 ; Farmers* Nat Bank v. Jones (C.
C) 105 Fed. 459. But this rule does not apply where the object of the suit is
to gain possession of funds in the hands of the state treasurer, which, how-
ever, do not belong to the state, but to a private corporation, which was re-
quired to deposit such funds. to secure the performance of its contracts within
the state, and which has become insolvent. Morrill v. American Reserve Bond
Co. (C. C.) 151 Fed. 305. See **Courtt;* Deo. Dig. {Key No.) § SOS; Cent. Dig.
I SU\k; ''Statetr Cent. Dig. | 19^
172 FEDERAL JURISDICTION. (Ch. 7
in the federal courts.^'® And this rule is applied even where the
law or ordinance in question relates to taxes or license fees, so that
the state may have a pecuniary interest in the result of the suit.***
But a federal court has no jurisdiction of a suit brought by a private
person against the executive and law officers of a state, to test the con-
stitutionality of a statute by enjoining any proceedings for its enforce-
ment, where the defendants are not charged by the statute with any
specific duty in the matter, and have neither done nor attempted any
act or wrong or trespass against the person or property of the com-
plainant, and, if they act, must do so by formal legal proceedings in
the courts in the name of the state; for such a suit is in effect one
against the state itself.*'* But the fact that a state is a stockholder
in a private corporation does not deprive the courts of jurisdiction
of suits against such corporation.*'* The eleventh amendment, it is
held, does not restrict or take away the appellate jurisdiction of the
supreme court in cases where a controversy arises under the constitu-
tion or laws of the United States, although a state may be a party to
such controversy. And a writ of error will lie in such cases, al-
i»o Ex parte Young, 209 U. S. 123, 28 Sup. Ct 441, 52 L. Ed. 714, 13 L. R.
A. (N. S.) 933 ; Mississippi Railroad Com'n v. Illinois Cent. R. Co., 203 U. S.
335, 27 Sup. Ct. 90, 51 L..Ed. 209; Prentis v. Atlantic Coast Line R. Co., 211
U. S. 210, 29 Sup. Ct. 67, 53 L. Ed. 150 ; McNeill v. Soutliern Ry. Co., 202 U.
S. 543. 26 Sup. Ct. 722, 50 L. Ed. 1142 ; Prout v. Starr, 188 U. S. 537, 23 Sup.
Ct 398, 47 L. Ed. 584 ; Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct 418, 42 U
Ed. 819 ; Scott v. Donald, 165 U. S. 107, 17 Sup. Ct 262, 41 t. Ed. 648 ; Rea-
gan V. Farmers* Loan & Trust Co., 154 U. S. 362, 14 Sup. Ct 1047, 88 L. Ed.
1014 ; Howell v. Miller, 91 Fed. 129, 33 C. C. A. 407 ; Lindsley v. Natural Car-
bonic Gas Co. (C. C.) 162 Fed. 954 ; Western Union Tel. Co. v. Andrews (C. C.)
154 Fed. 95 ; Illinois Cent R. Co. v. Mississippi Railroad Com'n, 138 Fed. 327,
70 C. C. A. 617; Union Pac. R. Co. v. Alexander (C. C.) 113 Fed. 347; Cot-
tlug V. Kansas City Stock-Yards Co. (C. C.) 79 Fed. 679 ; Clyde v. RaHroad Co.
(C. C.) 57 Fed. 436 ; Piek v. Chicago & N. W. Ry. Co., 6 Blss. 177, Fed. Cas. Na
11,138. See '"Courts," Dec. Dig, (Key No,) § SOS; Cent. Dig, § 8^4%.
181 In re Tyler, 149 U. S. 164, 13 Sup. Ct 785, 37 L. Ed. 689; Minneapolis
Brewing Co. v. McGilllvray (C. C.) 104 Fed. 258 ; Taylor v. LouisvUle & N. R.
Co., 88 Fed. 350, 31 C. C. A. 537; Sanford v. Gregg (C. C.) 58 Fed. 620; Secor
V. Singleton (C. C.) 35 Fed. 376. See "Courts," Dec. Dig, {Key No.) § SOS;
Cent. Dig. ^ SW^.
182 Fitts V. McGhee, 172 U. S. 516, 19 Sup. Ct. 269, 43 L. Ed. 535. See
"Courts,"' Dec Dig. {Key No.) { SOS; Vent, Dig. f SUVj-
188 Bank of United States t. Planters' Bank, 9 Wheat 904, 6 L. Ed. 244;
Bank of Kentucky v. Wister, 2 Pet. 318, 7 L. Ed. 437 ; Darrlngton v. Bank,
13 How. 12, 14 L. Ed. 30 ; Southern R. Co. v. North Carolina R. Co. (C. C.)
81 Fed. 595. See "Courts," Dec. Dig. {Key No.) § SOS; Cent. Dig. ( 844^.
i 91) STATES AS PARTIES. 173
though a state, having commenced the suit in its own courts, will
thus become a defendant in error in the appellate court.^'^
Suits Between States,
The reason for giving the supreme court original jurisdiction of
controversies between two or more states was partly the consideration
that such a jurisdiction was necessary to maintain the peaceful and
harmonious relations of the states in the Union, and partly in order
to secure the dignity of the states themselves, which might justly
have been deemed compromised if the settlement of their disputes
had been intrusted to any other or inferior authority. Before the
constitution there was no court in which one state could sue another.
In fact, while history furnishes some few illustrations of a centra^
authority invested with power to hear controversies between quasi
mdependent powers, and to arbitrate between them, there is no exact
historical parallel for this provision of the constitution, which erects
the supreme federal tribunal not merely into an arbitrator but a judge
between states, invested with full jurisdiction and with power to com-
mand obedience to its decisions. That court "can not only hear and
determine all controversies between different states, of which it is
given original jurisdiction, but can also bring them before it by pro-
cess, as it can bring the humblest citizen, and declare its judgment,
which it has usually been able to enforce." ^'^ But in order to call
into exercise this jurisdiction of the supreme court, it is necessary that
states, as such, should be actually parties in interest in the controversy,
and not merely nominal parties.^'* Suits between states, brought in
the supreme court, have chiefly related to the settlement of disputed
boundaries.*'^ But they have also been heard in a few other cases.*'*
184 Cohen v. Virginia, 6 Wheat. 264, 5 L. Ed. 257. See *Vourt8,** Dea Dig.
(Key No.) | S91; Cent. Dig. f lOJ^S.
i<8 Miller, Ck>n8t p. 390.
»»« Fowler t. Lindsey, 3 DaU. 411, 1 L. Ed. 658; New Hampshire v. Louisi-
ana, 108 U. S. 76, 2 Sup. C?t 176, 27 L. Ed. 656. See **Court8,** Dec. Dig. (Key
No.) % S79; Cent. Dig. §§ 986, 987.
13T See supra, p. 2& See "Courts,** Dec. Dig. (Key No.) | S79; Cent. Dig.
%987.
i<* A oontroTeray between states, cognizable in the supreme court, was held
to be presented by a biU which raised the question of the right of the state of
Colorado to appropriate all the water of the Arkansas river, which rises in
that state and naturally flows Into and through the state of Kansas, the suit
being brought by Kansas. Kansas v. Colorado, 185 U. S. 125, 22 Sup. Ct. 552,
46 L. £d.'83& So, also, the construction by a public corporation, as an agency
Zl
174 FBDBRAL JURISDICTION. (Ch. 7
When process at common law or in equity is to issue from the
United States supreme court against a state, it must be served upon
the governor or chief executive magistrate of the state and also upon
the attorney general of the state ; service upon one of them alone is
not sufficient.^** When the controversy is between two states, the
court will not apply the rules which ordinarily govern courts of equity
as to the allowance of time for filing an answer and other such pro-
ceedings, because the parties in such a controversy must, in the nature
of things, be incapable of acting with the promptness of an individ-
ual.^** And the practice is well settled that, in suits against a state,
if the state shall refuse or neglect to appear, upon due service of
process, no coercive measures will be taken to compel an appearance,
but the plaintiff state will be allowed to proceed ex parte.**^
States as Plaintiffs.
The supreme court has original jurisdiction of suits brought by a
state against citizens of another state, as well as of controversies be-
tween two states. That is to say, a state may sue an individual, being
a citizen of another state, in the supreme court, as well as another
state.^** A suit by or against the governor of a state, as such, in
his official character, is a suit by or against the state.^**
of the state, of a system of public works to promote the health and prosper-
ity of its inhabitants, but which endangers the health and prosperity of the
inhabitants of another and adjacent state, furnishes a sufficient basis for a
controversy between the states, of which the supreme court may take original
jurisdiction. Missouri v. Illinois, 180 U. S. 208, 21 Sup. Ct. 331, 45 L. Ed. 497.
So of a suit by one state on the defaulted bond3 of another state. South Da-
kota V. North Carolina, 192 U. S. 286, 24 Sup. Ct. 2C9, 48 L. Ed. 448. But a
mere maladministration of the laws of a state, to the injury of citizens of an-
other state, does not constitute a controversy between the states. Louisiana
V. Texas, 176 U. S. 1, 20 Sup. Ct. 251, 44 L. Ed. 347. See *Vourts;* Dec, Dig.
{Key yo,) §§ SO.i, S80; Cent. Dig, § 986.
i3» New Jersey v. New York, 6 Pet. 284, 8 L. Ed. 127; Grayson v. Virginia,
3 Dall. 320, 1 L. Ed. 619 ; Huger v. South Carolina, 3 Dall. 339, 1 L. Ed. 627.
See ''Courts*' Dec. Dig. {Key No.) § S79; Cent. Dig. § 994^.
' 1*0 Rhode Island v. Massachusetts, 13 Pet. 23, 10 L. Ed. 41. See **Court8,**
Dec. Dig. (Key No.) § 5^7; Cent. Dig. § 921; ^'States,** Cent. Dig. § 12.
141 Massachusetts v. Rhode Island, 12 Pet. 755, 9 L. Eid. 1272. See **Court8,'*
Dec. Dig. (Key No.) § S79; Cent. Dig. § S54Vj.
i4» Wisconsin v. Pelican Ins. Co., 127 U. Sl 265, 8 Sup. Ct. 1370, 32 L. Ed.
239. And see Betancourt v. Mutual Reserve Fund Life Ass'n (C. C.) 101 Fed.
306 ; Georgia v. Tennessee Copper Co., 206 U. S. 230, 27 Sup. Ct. 618, 51 L. Bd.
103a See ''Courts,'' Dec. Dig. (Key No.) {§ 303, 379; Cent. Dig. § 986.
14* Kentucky v. Dennlson, 24 How. 66, 16 L. Ed. 717 ; Governor of Georgia
B§ 99-03) jUBiSDicnoii of supbbms cx>nBT. 176
JUBUDICTION OF SUPREME COVBT.
9S. Tkm ooaatitiitlon vrorides that the rapreme court of the United
Stmtee shall have orlstnal jarisdiotion.
Ca> Im all eases affeetiac aiabassadors, other pablie ministers^ aad
(b> Im eases Ia whleh aj|(AJbp shall be a party.
03. Im all other eases to which tha Judicial power of the United
States extends, the snpreme conrt may have appellate Jnris-
dieti<»n, both as to law and fact, with such exoeptionst and
vader such regnlaticins, as consress may prescribe*
Original Jurisdiction.
The provision of the constitution with reference to the original ju-
risdiction of the supreme court is both a grant and a limitation. On
the one hand, it confers jurisdiction which cannot be taken away or
abridged by any act of the legislative department. On the other hand,
it precludes congress from conferring on the court, or the court itself
from assuming, any original jurisdiction in cases other than those
specified.*** But the jurisdiction thus conferred by the constitution
is not in terms made exclusive. Consequently it is not incompetent
for congress to invest the lower federal courts with a like original
jurisdiction, concurrent with that of the supreme court.****
T. Miadrazo, 1 Pet. 110, 7 L. Bd. 73. See **Oourt8,'* Deo, Dig. (Key No,) §| 305,
S79; Cent. Dig. % 986.
144 The snpreme court must decide whether It has jurisdiction of a suit in
which its original jurisdiction is invoked, and neither the silence of counsel
nor the express consent of parties will justify it in ignoring this question,
which lies In limine. Minnesota v. Hitchcock, 185 U. S. 873, 22 Sup. Ot. 650, 46
L. Ed. 954. See "Courts^* Dec. Dig, (Key No.) | S79; Cent. Dig. |§ 986, 987.
145 Statutory regulations with regard to this branch of the court's juris-
diction have been made as follows: 'The supreme court shall have exclusive
jurisdiction of all controversies of a civil nature where a state is a party, ex-
cept between a state and its citizens, or between a state and citizens of other
states, or aliens, in which case it shall have original but not exclusive juris-
diction. And it shall have exclusively all such jurisdiction of suits or pro-
ceedings against ambassadors or other public ministers, or their domestics or
domestic servants, as a court of law can have consistently with the law of
nations; and original but not exclusive jurisdiction of all suits brought by
ambassadors or other public ministers, or in which a consul or vice-consul is
a party.*' And again: *'The supreme court shall have power to issue writs
ot prohibition in the district courts, when proceeding as courts of admiralty
and maritime jurisdiction; and writs of mandamus, in cases warranted by
the prindpleB and usages of law, to any courts appointed under the authority
1 76 FEDERAL JURISDICTION. (Ch. 7
The writs of prohibition, mandamus, and habeas corpus, while they
may issue from the supreme court in aid of its appellate jurisdiction,
cannot be used as original process save in the cases where original
jurisdiction is given by the constitution.^** Thus, the court has power
to issue a mandamus to a circuit court commanding that court to sig^
a bill of exceptions in a case tried before such court,^*^ but not to an
officer of the executive department requiring affirmative action on his
part.^** Nor can a writ of prohibition issue from the supreme court
in cases where there is no appellate power given by law nor any special
\ authority to issue the writ ; neither a writ of error, writ of prohibi-
i ition, nor certiorari will lie from the supreme court to a circuit court
' jin a criminal case.^**
\ The original jurisdiction of the supreme court has chiefly been re-
sorted to in controversies between two states, as in the case of bound-
ary disputes, as mentioned on a preceding page. It is also held that
the court has original jurisdiction of a suit in equity brought by the
United States against a state to detennine the boundary between the
state and a territory of the United States, and that such a question
is susceptible of judicial determination.^'*
Appellate Jurisdiction,
The constitutional provision respecting the appellate jurisdiction
of the supreme court is not self -executing. No appellate jurisdiction
could be exercised without a grant of it by congress. And the appel-
late jurisdiction may be regulated, enlarged, or restricted, as congress
of the United States, or to persons holding office under the authority of the
United States, where a state, or an ambassador or other public minister, or a
consul or vice-consul is a party." Also: "The supreme court and the circuit
and (district courts shall have power to issue writs of habeas corpus." Rev.
St. U S. SI 687, 688, 751 (U. S. Ck)mp. St. 1901, pp. 565, 592).
148 In re Massachusetts, 197 U. S. 482, 25 Sup. Gt. 512, 49 L. Ed. 845. See
^'Courts," Dec, Dig, (Key No.) f$ 265, S79; Cent. Dig. §§ 990-992.
147 In re Crane, 5 Pet 190, 8 L. Ed. 92 ; In re Glaser, 198 U. S. 171, 25 Sup.
Ct. 653, 49 L. Ed. 1000. See **Court8,** Dec. Dig, (Key No.) f S79; Cent. Dig.
I 991,
1*8 Marbury v. Madison, 1 Granch, 137, 2 L. Ed. 60. See **Court8,*' Dec. Dig.
{Key No.) f S79; Cent. Dig. 6§ 985, 992,
i*» In re Gordon, 1 Black, 503, 17 L. Ed. 134. See **Court8,'* Dec. Dig. (Key
No.) § 379; Cent. Dig. % 992.
180 United States v. Texas, 143 U. S. 621, 12 Sup. Gt. 488, 36 L. Bd. 285.
And see Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct 655, 51 L. Ed. 956 ; Vir-
ginia V. West Virginia, 206 U. S. 290, 27 Sup. Ct. 732, 51 L. Ed. 106a Bee
*'Court8,'' Dec Dig. (Key No.) § 579; Cent. Dig. § 986.
§§ 92-98) jUBiSDicnoir or supbbmb goubt. 177
shall see fit.^*^ Since the creation of the circuit courts of appeals,
and the vesting in them of considerable appellate jurisdiction, the
supreme court has jurisdiction of appeals from the circuit or district
courts <Hily in the following cases: Where the jurisdiction of the
court is in issue; from final sentences and decrees in prize cases;
in cases of conviction of a capital or otherwise infamous crime; in
cases involving the construction or application of the constitution of
the United States; in cases involving the constitutionality of an act
of congress or a treaty ; in cases in which the constitution or a law of a
state is claimed to be in contravention of the constitution of the United
States. In all other cases the appellate jurisdiction is in the circuit
courts of appeals. But the most important feature of the appellate
jurisdiction of the supreme court (at least from the point of view
of constitutional law) is that which gives it power to review the judg-
ments of the highest courts of the states in certain cases. The judi-
ciary act of 1789 provided that "a final judgment or decree in any suit
in the highest court of a state in which a decision in the suit could be
had, where is drawn in question the validity of a treaty or statute of,
or an authority exercised under, the United States, and the decision
is against their validity ; or where is drawn in question the validity of
a statute of, or an authority exercised under, any state, on the ground
of their being repugnant 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 constitu-
tion, or any treaty or statute of, or commission held or authority ex-
ercised tmder, the United States, and the decision is against the title,
right, privilege, or immunity specially set up or claimed by either
party, under such constitution, treaty, statute, commission, or authori
ty, may be re-examined, and reversed or affirmed, in the supreme court
oo a writ of error." ^"* The constitutionality of this act has been
»•! Barry ▼. Merceln, 5 How. 103, 119, 12 L. Ed. 70; In re McCardle, 7
WaU- 506, 513, 19 L. Ed. 264. See In re Vldal, 179 U. S. 126, 21 Sup. Ct. 48,
45 L. Ed. 118 (as to review of proceedings of military tribunals) ; The Habana,
175 U. S. 677, 20 Sup. Ct 290, 44 L. Ed. 320 (appeals from sentences and de-
crees in prize cases) ; Ribas y Hi Jo v. United States, 194 U. S. 815, 24 Sup.
Ct 727, 48 L. Ed. 994 (appeal from district court of Porto Rico). See ^Courts,**
Dee, Dig. (Key No.) | S80; CetU. Dig. %% 996-1018,
i«t B«T. St U. S. f 709, Judiciary Act, S 25 (U. S. Comp. St 1901, p. 575).
Tbe dtlgmahlp of the parties is immaterial as affecting the jurisdiction of the
supreme court on a writ of error to a state court. Barrington y. Missouri, 205
Bl..O>H«T.I«.(3D.BtD.) — 12
178 FEPBBAL JURISDICTION, (Ch. 7
fully vindicated.* •• But the supreme court holds itself strictly within
the limits of the jurisdiction here laid down. It will not take juris-
diction to review a case thus brought to it merely on the ground that
a federal question might have formed the basis of decision of the case ;
it must appear that such a question actually did arise in the case and
form the ground of the judgment of the state court, adverse to the
plaintiff in error. When the state court, in rendering judgment, de-
cides a federal question, and also decides against the plaintiff in error
upon an independent ground, not involving a federal question, and
broad enough to support the judgment, the writ of error will be dis-
missed by the United States supreme court without considering the
federal question.*'* Even where it docs not appear upon what ground
the state court placed its judgment, if the judgment may be supported
without deciding a federal question, the federal court will have no
jurisdiction to review the case.*" But if the adjudication of a federal
question is necessarily involved in the disposition of a case by the
state court, it is not necessary that it should appear affirmatively in
the record, or in the opinion of the court, that such a question was
raised and decided.*'* And the court will confine its review of the
U. S. 483, 27 Sup. Ct. 582, 51 L. Ed. 890. See "Courts," Dec. Dig. (Key No,)
§ SH; Cent. Dig. §§ 1049-1077.
IBS Martin v. Hunter, 1 Wheat 304, 4 L. Ed. 97. And see Western Turf
Ass'n Y. Greenberg, 204 U. S. 359, 27 Sup. Ct. 384, 51 L. Ed. 520. See "Courts,'*
Dec. Dig. (Key No.) | S94; Cent. Dig. §§ 10^9-1077.
18* California Nat. Bank y. Thomas. 171 U. S. 441, 19 Sup. Ct 4, 43 L. Ed.
231 ; Harrison y. Morton, 171 U. S. 38, 18 Sup. Ct 742, 43 L. Ed. 63 ; Bacon
Y. Texas, 163 U. S. 207, 16 Sup. Ct 1023, 41 L. Ed. 132 ; Beaupre Y. Noyes, 138
U. S. 397, 11 Sup. Ct 296, 34 L. Ed. 991 ; Armstrong v. Athens County, 16 Pet
281, 10 L. Ed. 065 ; Crowell y. Randell, 10 Pet 368, 9 L. Ed. 458 ; Murdock
V. Memphis. 20 Wall. 590, 22 L. Ed. 429 ; Waters-Pierce Oil Co. y. Texas, 212
U. S. 112, 29 Sup. Ct. 227, 53 L. EM. 431. But a state court cannot, by resting
its judgment on some ground of local or general law, defeat the appellate
Jurisdiction of the supreme court of the United States, if a federal right or
immunity was specially set up or claimed which, if recognized and enforced,
would require a different Judgment. West Chicago St. R. Co. y. Illinois, 201
U. S. 506, 26 Sup. Ct 518, 50 L. Ed. 845. See **Courts,*' Dec. Dig. (Key No.)
f S91; Cent. Dig. §§ 1045, 109Z.
16 5 Allen Y. Argulmbau, 198 U. S. 149, 25 Sup. Ct 622, 49 L. Ed. 990; Walter
A. Wood Mowing & Reaping Mach. Co. v. Skinner, 139 U. S. 293, 11 Sup. Ct
528, 35 L. Bd. 193. See 'Vourts," Dec. Dig. {Key No.) § S91; Cent. Dig. |§
104S, 1092.
i»« Hammond v. Whlttredge, 204 U. S. 538, 27 Siip. Ct 396, 51 L. Bd. 606;
Kaukauna Water Power Co. y. Green Bay & M. Canal Co., 142 U. S. 254, 12
5S 92-98) JURISDICTION OF SUPREME OOURT. 179
judgment of the state court to the questions arising under the federal
constitution or laws.^*^ In order to be appealable, the judgment or de-
cree must have been rendered by the highest court of the state "in
which a decision in the suit could be had/' that is, the court of last
resort for that particular case, which is not necessarily the highest
court of the state.*"" And it must be final.*"*
The statute authorizing this kind of review in the supreme court
includes only the case where the decision is against the validity of a
treaty or statute or authority of the United States, or where a state
statute is upheld against objections to its validity based on the federal
constitution or laws, or where a title or right or privilege claimed un-
der federal law is denied. But these cases are sufficient to defend the
supremacy of the national constitution and laws and protect the rights
of citizens thereunder. If the decision of the state court accomplishes
the same result, by recognizing the validity of the federal statute, or
denying that of the state statute, or allowing the right or privilege
claimed, there is no need of a review by the federal courts, and re-
visory jurisdiction is very properly withheld from them.*"®
Sup. Ct 173, 35 L. Bd. 1004. Bee "Courts,** Dec. Dig. (Key No.) § S98; Cent.
Dig. II 1085-1088.
i»T Pennsylvania R. Co. v. Hughes, 191 U. S. 477, 24 Sup. Ct. 132, 48 L. Ed.
268 ; Taylor v. Beckham, 178 U. S. 548, 20 Sup. Ct. 890, 1009, 44 L. Ed. 1187.
Questions of fact once settled In the courts of the state are not subject to re-
Tiew in the supreme court of the United States, on writ of error to a state
court. Thayer v. Spratt, 189 U. S. 346, 23 Sup. Ct. 576, 47 L. Bd. 845 ; Noble
T. Mlt<±ell, 164 U. S. 367, 17 Sup. Ct. 110, 41 L. Ed. 472. See **Court8," Dec.
Dig. (Key No.) | S99; Cent. Dig. {I 1089, 1090.
i6« Kentudty y. Powers, 201 U. S. 1, 26 Sup. Ct. 387, 50 L. Ed. 633; Mullen
T. Western Union Beef Co., 173 U. 9. 116, 19 Sup. Ct, 404, 43 L. Ed. 635 ; Gel-
ston T. Hoyt, 3 Wheat. 246, 4 L. Ed. 381 ; McGuire v. Massachusetts, 3 Wall.
382, 18 L. Ed. 164 ; Green v. Van Buskirk, 3 Wall. 448, 18 L. Ed. 245. See
'^Courts;* Dec Dig. (Key No.) | S92; Cent. Dig. | 10^7.
iftt Forgay y. Conrad, 6 How. 201, 12 L. Ed. 404; Thomson v. Dean, 7 Wall.
342, 19 L. Ed. ^ ; Beebe v. Russell, 19 How. 283, 15 L. Ed. 668 ; Farrelly v.
Woodfolk, 19 How. 288, 15 L. Ed. 670 ; Ogilvle v. Knox Ins. Co., 2 Black, 539,
17 Ia Ed. 349; Wabash ft E. Canal Co. y. Beers, 1 Black. 54, 17 L. Ed. 41;
Milwaukee ft M. R. Co. y. Soutter, 2 Wall. 440, 17 L. Ed. 860 ; Grant y. Phoenix
Mnt Life Ins. Co., 106 U. S. 429, 1 Sup. Ct 414, 27 L. Ed. 237 ; Parsons y.
Robinson, 122 U. S. 112, 7 Sup. Ct 1153, 30 L. Ed. 1122. See "Courts,*' Dec
Dig. (Key No.) | S9S; Cent. Dig. i 1048.
lio Missouri Y. Andriano, 138 U. S. 496, 11 Sup. Ct 385, 34 L. Ed. lOlZ A
Judgment of a state court which does not so enforce a state statute as to de-
priYe the party complaining of rights which are protected by the federal con-
stitution will not be reyersed in the federal supreme court, because such stat-
180 rSDBBAL JURISDICTION. (Ch. 7
FOWBM AHD PBOCEDUBE OF FEDERAI. OOXTBTS.
94L The federal eourte, eonititiitiiic a different lyvtem fron thmt of
the state oonrtSt Are entirely independent ef tlie latter.
95. In eaeee not ^oiwem^d by federal etatntee or treaties, tlM feder-
al eonrts will administer t^r. l«jr of t^r Mfi*T in wliiek they
sity inelndinc tlie eommon law, statntes* and enstomst so f
as the same is not ineonsistent with federal lair.
M. The praetioe and jyroeednre of the federal eonrts, e:
nity and admiralty eases, is assimilated to that of the state
within tvmnvr'IXmits they are established.
97* The federal eonrts possess all snch incidental and adjnnet pow«
ers as belong to eonrts of reeord and whieh are necessary to
enable them to eseroise their oonstitntional and statutory
Jnrisdietion*
Independence of Federal and State Courts.
In regard to the mutual respect to be paid to their judicial proceed-
ings, and some other matters, the federal and state courts are not
regarded as foreign to each other, but as related in the same way as
the courts of two separate states in the Union. But in all other re-
gards, they are entirely distinct and independent in the exercise of
their respective powers. In order that each system of courts may
preserve its own independence and that neither may encroach upon
the proper jurisdiction of the other, they are governed by certain
fixed rules of comity and mutual respect, in cases of conflicting or
overlapping jurisdiction. It should be observed, however, that these
rules of comity do not grow out of the peculiar relations of the state
and federal courts entirely, or the limitations upon the jurisdiction of
either, but are similar to those which obtain between any two courts
of co-ordinate jurisdiction, as between the several superior courts of
Great Britain or the district or circuit courts of the same state. In
the first place, it is a well-settled rule that, of two courts having con-
current jurisdiction of any matter, the one whose jurisdiction first
attaches acquires exclusive control of all controversies respecting it
involving substantially the same interests, and will hold and exercise
tute, when enforced against a class to which the party complaining does not
belong, might work a deprivation of such constitutional rights. Lee v. New
Jersey. 207 U. S. 67, 28 Sup. Ct. 22, 52 L. IXL 106. See "Courts:' Deo, Dig.
(Key No.) { SH; Cent. Dig, §| mO-lon; ^'Constitutional Law," Deo. Dig.
(Key No.) t 4^; CetU. Dig. U S9, iO.
H M-97) FOWBR0 AND PBOGSDURB OV FBDBBAL 0OUBT8. 181
this right until its duty is fully performed and the jurisdiction invc^ed
is exhausted; and this rule applies to both civil and criminal cases,
and is applied as between the state and national courts.^** As each
court must be left free to exercise its jurisdiction once acquired, a
state court will not enjoin an action brought and pending in a federal
court,* •■ and it is expressly provided by act of congress that the writ
of injunction shall not issue from a federal court to stay proceedii^s
in a state courts except in the single case of matters arising tmder the
bankruptcy laws.*** For similar reasons, it is an unalterable rule
that when money or goods have been taken into the possession of the
officer of one of the courts (the sheriff acting under the state court
or a marshal under the federal court) by the levy of an execution, an
attachment, a writ of replevin, or otherwise, it cannot be taken from
his possession by any writ or other process issuing from the other
court**^ When, for instance, the marshal has taken possession of a
vessel, under process in admiralty, the courts of the state will not at-
tempt, by the appointment of a receiver or otherwise, to interfere with
that possession.*** So, where a state court has full control of mortgag-
ed property under a general assignment, a federal court will not enter-
ifi Brue* T. Manehester ft K. R. Co. (C. C.) 10 Fed. 842; In re James (G. G.)
18 Fed. 853; Owens t. Ohio Cent R. Co. (G. C.) 20 Fed. 10; Gates r. Bncki, 4
C. C A. 116, 68 Fed. 900 ; State Tmst Go. v. National Land Imp. ft Mannfg
Co. (C. C.) 72 Fed. 575. See '^Courtt,** Deo. Dig. {Key No.) |S m, 49S; Cent.
Dig. H ISiS, 1S46.
>•> Schayler t. Pellssier, 8 Edw. Gh. 191. See "CourtB/* Deo. Dig. (Key No.)
I 507; Cent. Dig. f| Ull-'Urt*
!•« Rey. St U. S. I 720 (U. S. Comp. St 1901, p. 581). See DiggB t. Wolcott
4 Crandi, 179, 2 L. Bd. 587 ; Lonisyllle Trnst Go. v. City of Cincinnati (G. G.)
T8 Fed. 716; Potter v. Selwyn (C. G.) 170 Fed. 223. But note tbat this rnle
Is restricted to cases in which the proceedings were first begun in the state
eoort If the federal court first acquired Jurisdiction of the proceedings, it
may protect itself against being interfered with, and may, If necessary, enjoin
adrerse proceedings In a state court. Yick Wo v. Crowley (C C.) 26 Fed.
207. See "^Court^r Dec. Dig. {Key No.) | 508; Cent. Dig. f| HIS-USO.
!•« Taylor t. Carryl, 20 How. 588, 15 L. Ed. 1028; Hagan t. Lueas, 10 Pet
400, 9 L. Bd. 470 ; Smith v. Bauer, 9 Colo. 380, 12 Pac. 897 ; Williams y. Chap-
man, eO Iowa, 57, 14 N. W. 89 ; Alabama Gold Life Ins. Co. y. Girardy (C. C.)
9 Fed. 142; Walker v. Flint (C. C.) 7 Fed. 485; Domestic ft Foreign Missionary
Soc: y. Hinman (G. C.) 13 Fed. 161 ; Beckett t. Sheriff Harford County (C. C.)
21 Fed. 82 ; Patterson y. Mater (C. C.) 26 Fed. 31 ; Summers y. White, 17 C.
CL A. 631, 71 Fed. 106; Frank y. Leopold ft Feron Co. (G. (X) 169 Fed. 922.
Bee **CowUr Dec. Dig. {Key No.) Sl \91. 498; Cent. Dig. f| 1886-1890.
i«s Thompson y. Van Vechten, 5 Ihier (N. Y.) 618. See *'Couri9f" Deo. Dig.
{J^ey No.) il m, 507; Cent. Dig. ff 1S86-1S90, 1411.
182 FEDERAL JURISDICTION. (Ch. 7
tain a bill asking to have the mortgage declared to be for the benefit
of all the mortgagor's creditors.^*' And so, an estate which is in
course of administration in a state probate court is in gremio legis,
and a federal court cannot take charge of the administration, and
determine and award the distributive shares of the heirs, at least as
regards citizens of the same state.^*^ A receiver appointed by a court
of equity is an officer of that court, and the receiver's possession of
the property of the trust is the possession of the court. No private
suitor may interfere with that possession, or sue the receiver, without
leave of the court which appointed him. By an extension of this rule,
the state and federal courts have determined that neither has any pow-
er to appoint a receiver of property which is already in the possession
of a receiver previously appointed by the other court,^** nor in any
wise interfere with the possession of such receiver.^*® If a receiver
appointed by a state court, acting under orders of that court, has un-
lawfully taken possession of property which he is not entitled to hold,
because it is not included in the trust, an application should be made to
the state court to correct its order; but if it will not, an action of tres-
pass on the case may be brought in the federal court, provided it has
jurisdiction of the parties and subject-matter.^^® Again, the relation
between the state and federal courts imposes a restriction upon the
equity powers of either in setting off a judgment of the one against
a judgment of the other. Hence when a federal court of equity is
asked to set aside the satisfaction of a state judgment at law, or to
determine equitable defenses to that judgment, as preliminary to a
decree of set-off against a judgment of the federal court itself, the
i«« Keys Mfg. Co. v. Klmpel (C. a) 22 Fed. 466. See "Courts,** Dec. Dig.
(Key Ko.) | 504; Cent, Dig. U ISSB-UOS-
i«T By era v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906, 37 L. Ed. 867; Eddy
y. Eddy, 168 Fed. 590, 93 G. C. A. 586. But the mere fact that an adminis-
trator of a decedent*8 estate has been appointed by a state court having Juris-
diction will not prevent the federal court from entertaining jurisdiction of
actions brought against him as administrator. Hook v. Payne, 14 Wall. 252,
20 L. Ed. 887. See "Courts,** Dec Dig. (Key No,) | 505; Cent, Dig, S UIO,
les Shields v. Coleman, 157 U. S. 168, 15 Sup. Ct 570, 39 L. Ed. 660. See
"Courts,*' Dec, Dig, (Key No.) §§ 500, 501; Cent. Dig, S§ I'h01-U09,
leg Wiswall V. Sampson, 14 How. 52, 14 L. Ed. 322; Hamilton v. Chouteau
(0. C.) 6 Fed. 339 ; Andrews v. Smith (C. C.) 5 Fed. 833 ; Palmer ▼. Texas, 212
U. S. 118, 29 Sup. Ct. 230, 53 L. Ed. 435. See '^Cowts,** Dec. Dig, (Key No.)
H 500, 501; Cent. Dig, §{ U07'U09,
170 Curran v. Craig (C. C.) 22 Fed. 101. See "Courts," Dec. Dig. ifiey No,)
St 500, 501; Cent, Dig, §§ U07-U09*
§§ 94-97) rowEBS and pbookdubs of federal courts. 183
parties will be sent to a state court of competent jurisdiction to settle
their controversy, and in the meantime the federal judgment will
be stayed.*^*
No Common Law of the United States.
It is often said that there is no common law of the United States ;
that the national government being one of limited and specified pow-
ers, its entire legal system must be found in the constitution, treaties,
and acts of congress ; that it can have no unwritten or customary law.
This is true to a certain extent. It is indisputable that the govern-
ment of the United States has no inherent common-law prerogatives.
It possesses only such as are conferred upon it by the constitution,
and therefore has no power to interfere in the personal or social re-
lations of citizens by virtue of authority deducible from the general
nature of sovereignty.*^* Nor is there any common law of the United
States, as such, which can be appealed to as conferring jurisdiction
upon its courts; they possess no other jurisdiction than that concur-
rently conferred by the constitution and acts of congress.^^' Again,
the general government has no power to punish any act as a crime
unless It is made such by the constitution or by a statute of congress ;
there can be no common-law crimes against the United States.*^* And
not only this, but the federal criminal jurisprudence is entirely desti-
tute of any substratum of a common law of crimes, upon which to
draw for supplying elements of the offense. For this the courts look
only to the statute. They may resort to the common law for the defi-
nition of crimes created by statute, or for the explanation of terms
»Ti Lauderdale County y. Foster (C. C.) 23 Fed. 516. See *Vourt8," Dec. Dig.
(Key yo.) f m; Cent. Dig. 1 1S61.
iT« In re Barry (G, C.) 42 Fed. 113. See "United States, *" Dec. Dig. (Key
No.) 15; Cent. Dig. | i.
ITS Pennsylvania y. Wheeling ft B. Bridge Ck>., 13 How. 618, 563; In re
Barry, 42 Fed. 118; 1 Kent, Comm. 831-341; 1 Whart. Cr. Law, S§ 253-256.
Bat in those matters not subject to Judicial Jurisdiction, there is a complete
system of executive national common law, of universal application within the
limits of the United States, growing out of the exercise of their executive
powers by the President and chief officers of the executive departments, and
consisting of usages and customs, precedents, quasi-Judicial decisions, and
constfuctiong upon the statutes, treaties, and the constitution. 3 Lawr. Compt.
Dec xxii ; U. S. v. Macdaniel, 7 Pet. 1, 14, 8 L. Ed. 687. See ''Courts*' Dec.
Dig. (Key No.) f S55; Cent. Dig. |§ 792, 80^, 805.
1T4 u. S. T. Eaton, 144 U. S. 677, 12 Sup. Ct 764, 36 L. Bd. 591 ; U. S. v.
Hudson, 7 Cranch, 32, 3 L. Ed. 259. Bee ''Criminal Law,*' Deo. Dig. (Key No.)
f 9; Cent. Dig. H 8> 9*
184 FBDBBAL JURISDICTION. (Ch. 7
used in the constitution or acts of congress, but never for any ingre-
dient of the offense.^^' So, also, the common-law rides relating to
common carriers have no application to interstate commerce, even
when the contract of carriage is made in a state where those rules
prevail; for such commerce is governed solely by the laws of the
United States, and the United States has never adopted the common
law."* But "there is one clear exception to the statement that there
is no national common law. The interpretation of the constitution
of the United States is necessarily influenced by the fact that its pro-
visions are framed in the language of the English common law, and
are to be read in the light of its history. The code of constitutional
and statutory construction which, therefore, is gradually formed by
the judgments of this court, in the application of the constitution and
the laws and treaties made in pursuance thereof, has for its basis so
much of the common law as may be implied in the subject, and con-
stitutes a common law resting on national authority." *^^
What Law Administered,
An act of congress provides that "the jurisdiction in civil and crim-
inal matters conferred on the district and circuit courts for the pro-
tection of all persons in the United States in their civil rights and for
their vindication, shall be exercised and enforced in conformity with
the laws of the United States, so far as such laws are suitable to carry
the same into effect; but in all cases where they are not adapted to
the object, or are deficient in the provisions necessary to furnish suit-
able remedies and punish offenses against law, the common law, as
modified and changed by the constitution and statutes of the state
wherein the court having jurisdiction of such civil or criminal cause is
held, so far as the same is not inconsistent with the constitution and
ITS n. S. T. De Groat (D. G.) 80 Fed. 764. There are numerous instances of
the necessity of resorting to the common law in search of definitions, in mat-
ters connected with the criminal law or criminal administration, in the eon-
struction of the constitution. Thus, that instrument speaks of "trial by Jury,"
"infamous crime," "jeopardy,** "due process of law,** etc. Upon referring to
the common law, we learn that a "Jury** means a Jury of 12 men drawn from
the vicinage, and so with regard to the others. See **Criminal Law" Dec Dig,
{Key No,) § 11; Cent, Dig. §§ 10-12,
17 6 Swift V. Philadelphia & R. R. Co. (O. C.) 58 Fed. 858. See **0arrier8,"
Deo, Dig, (Key No,) S 2S; Cent, Dig, { 59,
177 Smith v. Alabama, 124 U. S. 465, 8 Sup. Gt 564, 31 L. Ed. 508. See ''Stat-
utea,** Dec. Dig, {Key No,) t 222; Cent, Dig. t SOI.
ii 94-97) POWfiBS AKD PBOCBDURB OF FEDERAL CX>UBTS. 185
laws of the United States^ shall be extended to and govern such courts
in the trial and disposition of the cause." ^^^
And it is a general rule that where the case is not governed by
any federal statute or treaty,"* the federal courts will administer the
law of the state wherein they sit, and will take notice of the conunon
law of the state, and its statutes and customs, and apply them as the
courts of the state would apply them to the same circumstances.^®'^
And though the jurisdiction of the federal courts, as fixed by the
constitution and acts of congress, can neither be enlarged or abridged
by the legislative action of the states, yet any right arising under, or
liability imposed by, either the common law or a statute of a state
may, where the action is transitory, be asserted and enforced in any
circuit court of the United States having jurisdiction of the subject-
matter and the parties.*'* But the federal courts have a general sys-
tem of equity jurisprudence which is administered uniformly through-
out the United States, without any variations or exceptions resulting \
from local laws.*'*
Following State Decisions.
It was provided in the original judiciary act of 1789 that "the laws
of the several states, except where the constitution, treaties, or stat-
utes of the United States otherwise require or provide, shall be regard-
ed as rules of decision in trials at common law, in the courts of the
United States, in cases where they apply." *" And "since the ordi-
iT« Rev. St. U. S. § 722 (U. S. Comp. St 1001, p. 582).
1Y0 A case arising under a federal statute, such as the bankruptcy law, la to
be decided Independently by the federal courts. In re Plotke, 101 Fed. 064,
44 C. C. A. 282. See ''Courts^ Dec. Dig. (Key No.) § S61; Cent, Dig. S 95 k.
!•• Cheatham v. Evana, 160 Fed. 802, 87 C. C. A. 676; Denver v. Porter,
126 Fed. 288, 61 C. C. A. 168; McClaln v. Provident Sav. Life Aasur. Soc.,
110 Fed. 80, 40 C C. A. 31 ; Thompson v. McCk>nnell, 107 Fed. 33, 46 G. C. A.
12L See '*Court%r Dec. Dig. {Key No.) § S66; Cent. Dig. K 954-968.
lii Dennick v. Central R. Co., 103 U. S. 11, 26 L. Ed. 430; Piatt Y. Lecocq,
158 Fed. 723, 85 C O. A. 621, 15 L. R. A. (N. S.) 558 ; Harrison v. Remington
Paper Co., 140 Fed. 385, 72 C. C. A. 405, 3 L. R. A. (N. S.) 054 ; Malloy v. Amer-
ican Hide A Leather Co. (C. C.) 148 Fed. 482 ; Anthony v. Burrow (C. 0.) 120
Fed. 788 ; Jones v. Mutual Fidelity Co. (0. C.) 123 Fed. 506 ; U. S. v. Leslie
(C. C) 167 Fed. 670. See **Courts/' Dec. Dig. (Key No.) f 260; Cent. Dig. S
792.
lit First Nat Bank v. Bwlng, 103 Fed. 168» 43 C. C. A. 150 ; Alger v. Ander-
son (C. C.) 02 Fed. 606. See '"Courts," Dec. Dig. [Key No.) § 3S5; Cent. Dig.
H 902-907 h^.
i«t Bev. St U. B. t 721 (U. S. Comp. St 1001, p. 581). Note that this pro-
186 FEDERAL JURISDICTION. (Ch. 7
nary administration of law is carried on by the state courts, it neces-
sarily happens that, by the course of their decisions, certain rules are
established which become rules of property and action in the state,
and have all the effect of law. Such established rules are always re-
garded by the federal courts, no less than by the state courts them-
selves, as authoritative declarations of what the law is." ^*^ Thus,
when the question concerns the construction or effect of any provision
of the constitution of the state or of a state statute, and it has been
authoritatively decided by the court of last resort in the state, the
federal courts will consider themselves bound to adopt and apply the
doctrine so laid down.^*" So of a decision of the state courts that a
given statute is or is not repugnant to the state constitution.^** But
if the construction of the state constitution or statute, as settled by its
vision only applies to "trials at common law.'* Where the question is one
of general equity jurisprudence, the national courts, having an equity sys-
tem of their own, are not bound to follow the decisions of the state courts.
Neves v. Scott, 13 How. 268, 14 L. Ed. 140. Neither has this statute any ap-
plication to the trial of criminal offenses against the United States. Unit-
ed States V. Central Vermont Ry. (0. C) 157 Fed. 291. Nor to a question of
international law or comity. Bvey v. Mexican Cent. Ry. Co., 81 Fed. 294, 26
C. C. A. 407, 38 li. R. A. 387. See '^Courts,'* Dec. Dig, {Key No,) §S SSSSil;
Vent Dig, §| 899-910.
184 Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. 10, 27 L. Ed. 359; Town-
send y. Todd, 91 U. S. 452, 23 L. Ed. 413 ; Atlantic ft G. R. Co. t. Georgia,
98 U. S. 359, 25 L. Ed. 185 ; Sims' Lessee v. Irvine, 3 Dall. 425, 1 L. Ed. 665 :
Walker v. Marks, 17 Wall. 648, 21 L. Ed. 744. See ^'Covrts,*' Dec Dig. (Kev
yo,) S 367; Cent. Dig. K 958, 959.
185 Gatewood r. North Carolina, 203 U. S. 631, 27 Sup. Ct. 167, 51 L. Ed.
305; Wicomico County v. Bancroft, 203 U. S. 112, 27 Sup. Ct. 21, 51 L. Ed.
112; Yazoo & M. V. R. Co. y. Adams, 181 U. S. 580, 21 Sup. Ct 729, 45 L.
Ed. 1011 ; Tullls v. Lake Erie ft W, R. Co.. 176 U. S. 348, 20 Sup. Ct. 136,
44 L. Ed. 192 ; Bauserman v. Blunt, 147 U. S. 647, 18 Sup. Ct 466, 37 L. Ed.
316; Cornell University v. Flske, 136 U. S. 152, 10 Sup. Ct 775, 34 L. Ed.
427 ; McElvaine v. Brush, 142 U. S. 155, 12 Sup. Ct 166, 35 L. Ed. 971 ; South
Branch Lumber Co. v. Ott, 142 U. S. 622, 12 Sup. Ct. 318, 35 L. Ed. 1136 ; Lef-
flngwell V. Warren, 2 Black, 599, 17 L. Ed. 261 ; Converse v. Mears (C, C.) 162
Fed. 767 ; Hager v. American Nat Bank, 159 Fed. 396, 86 C. C. A. 334 ; Ly-
man V. Hilllard, 154 Fed. 339, 83 C. C. A. 117; Harrison v. Remington Paper
Co., 140 Fed. 385, 72 a C. A. 405, 3 L. R. A. (N. S.) 954; National Bank of
Oxford V. Whitman (C. C.) 76 Fed. 697. See ''Courts,** Dec. Dig. (Key No.)
i S66; Cent. Dig. §S 954-957, 960-968.
i> 6 Montana v. Rice, 204 U. S. 291, 27 Sup. Ct 281, 51 L. Ed. 490; Ras-
mussen v. Idaho, 181 U. S. 198, 21 Sup. Ct 594, 45 L. Ed. 820; Fallbrook
Irr. Dist. V. Bradley, 164 U. S. 112, 17 Sup. Ct. 56» 41 L. Bd. 868. See
"Courts,** Dec Dig. {Key No.) | S66; Cent. Dig. S 957,
\
8 M-^ ^:*v^:i^ .«^w> fs^ucuDUKE of fedekal courts. 187
the efficacy of some provision of the
i -.5.^ rf ibe Vnried States, the federal courts will not
Ti r-.l-'*- r.-*" Tins if rights have vested under a construe-
::aslT placed upon it by the state courts,
b^und to follow a subsequent and differ-
= T^siT li :r» sCii* czcns, when the effect would be to divest such
•-cts 3" m^r rie :cL4:ii::>a of omtracts.*** For reasons similar to
ric ::r?cnz^ -_r»i ricns oi the United States will follow the decisions
ciix S2CS ricrs zc roesdons of real-property law, especially those
=rri-3c ~e r3.rzrc oc Talidity of titles.* •• And the same thing is
rae :: rrs^^cs >f r-^n^v local law.***
Zbt itrzs :cs wTizh are thus binding on the federal courts are those
r^'.nri 17 tbf rlcbest judicial tribunal of the state, having final
."=".' lr=>:c :f the ::-::est£on involved,*** and rendered on the precise
-.-c e i=5:3e.*** 'CV-r.ions of the lower courts or of intemicdintc
22 zzirzs. ihztigh entitled to respectful consideration, are not
a C:~-y t. Wallace, 142 U. S. 203. 12 Sup. Ct. 227. 35 L. Ed.
irs •> .-«:: T. S:=7«rTl!on of Fond du Lac County, 16 Wall. CTa 21 I* Kit.
« -Vr-iit T. I>iboqiie. 1 WalL 175, 17 U Ed. 520; Moreuci Copiwr (>>.
•?- C. irr red- 1»; Central Trust Co. ▼. Citizens* St. Uy. Co. of
C. C S2 Fed. 1. See "CoMrf«;» Dec. Dig. (Key No.) §| SSe, 309;
CPU. >f. a ;^-r-Jk57. 5>^'^Ptf'*.
:»Aadenoa t. Santa Anna Tp., 116 U. S. 356, 6 Sup. Ct. 413. 2t> L. Kd.
«: DciK^sKtim Co. t. Murray iC. C.) 161 Fed. 162; Forest Products Co.
T. tMin fO C) lei Fed. lOru ; Board ot Ooin'rs of Franklin County t.
Gmsexr Sar. irst, 119 Fed. 3R. 55 a C, A. 614. See **pourta,'* /)r(\ Dig,
'Xf? JT*.! H S-5S. SS9; Cent, Dig. { 951.
i*»AbnhMm t. Cawy. 179 U, S. 210, 21 Sup. Ct 88, 45 L. Rd. 150: Wnr-
tartoa T. WUte. 176 C. & 4^. 20 Sup. Ct. 404, 44 L. Kd. 555; St. lioula T.
latx. I3S r. & 236. U Sup. Ct 337; 84 L. Ed. 941; MoKoen v. Dolnnoy. 5
Dasck. £t 3 Ll Ed. 25: Gillespie v. Pocahontas Coal Co., 103 Fe<l W2, 01
C C A- 491 : Paine v. wnison, 146 Fed. 488, 77 C. C. A. 44 ; Uofio v. Mi\irnt'«.
S Fed. 355, 29 a a A. 5C4. See 'Vourtar Deo. Dig, {Key No,) | 567; Vvnt
Dig. f 9S9.
i—Otio T. Frank, 103 U. S. 697, 26 L. Ed. 531; Percy Summer Club ▼.
Astle. 163 Fed. 1, 90 a a A. 527. See "Courts,** Dec. Dig. (Key No,) | Sill;
C€aL Dig. f 9S5.
i»x Federal l>ad Ca y. Swyers, 161 Fed. 687, 88 G. C. A. 647; Calhoun
Gold Jlln. Co. T. Ajax Gold Min. Co., 27 Colo. 1, 59 Pac. 007, 50 L. R. A. 200,
S Abl St. Bep. 17. See "Courts,** Dec. Dig. (Key No.) S| S65, 366; Cent.
Dig. U 9S0-971.
1*2 Southern R. Co. t. Simpson, 131 Fed. 705, 65 C. C. A. 563. See "Courts,**
Dec IHg. (Keif No.) ii 56J, 366; Cent. Dig. ft 950-971.
188 FEDERAL JURISDICTION. (Ch. 7
conclusive authorities/ •• and no authoritative force is to be accorded
to mere dicta/*^ nor to an isolated single decision of the state supreme
court made many years before.^*' In case of changes of opinion in
the state courts, the federal courts will follow the latest settled adju-
dications,^** but they cannot be expected to follow oscillations in the
process of settlement, and will not feel bound by the decisions unless
it is clear that the supreme court of the state regards the question
as decided.^*'
But the federal courts sitting in any state have equal and co-ordinate
jurisdiction with the state courts in determining questions of general
jurisprudence and particularly of general commercial law, and are not
bound in such matters to follow the state decisions.* •■ This rule ap-
plies, for example, to questions of the right of a carrier to limit his
common-law liability;*** questions as to the rights and liabilities of
i»» Federal Lead Co. ▼. Swyera, ICl Fed. 687, 88 C. a A. 547; Anglo-
American Land, eta, Co. y. Lombard, 132 Fed. 721, 68 C C. A. 89; Stryker
V. Board of Corners of Grand County, 77 Fed. 567, 23 a C. A. 286; Continental
Securities Co. v. Interborough Rapid Transit Co. (C. O.) 165 Fed. 946. Bee
''Courts*' Dec Dig, {Key No.) ^ S65, S66; Cent Dig. H 950-971,
i9« In re Snllivan, 148 Fed. 815, 78 C. C. A. 506; Matz v. Chicago ft A. R.
Co. (C. C.) 86 Fed. 180. See ''Courts,"* Deo, Dig, (Key No.) U S65, S66; Cent
Dig, IS 950-971.
185 Belfast SaT. Bank v. Stowe, 92 Fed. 100, 84 C. C. A. 229; Stowe t.
Belfast Say. Baiik (C. C.) 92 Fed. 90. See ''Courts,** Dec. Dig, (Keg No.) if
865, 366; Cent Dig. ffi 950-971.
i»6 Wade y. Trayls County, 174 U. 8. 499, 19 Sup. Ct 716, 43 L. Ed. 1060;
Lefflngwell y. Warren, 2 Black, 599, 17 L. EHL 261. See "Courts,** Dec Dig,
(Key No.) ff S68; Cent. Dig. I 951,
i»TMyriek y. Heard (C. C.) 81 Fed. 241. See "Courts,** Deo. Dig. (Keg
No,) I 368; Cent Dig. fi 951,
108 Clark y. Beyer, 139 U. S. 96, 11 Sup. Ct. 468, 35 L. Ed. 88; Thompson
y. Perrlne, 103 U. S. 806, 26 L. Ed. 612 ; Roberts y. Belles, 101 U. S. 119, 26
L. Ed. 880; Swift y. Tyson, 16 Pet 1, 10 L. Ed. 865; Leyner Engineering
Works y. Kempner (C. C.) 163 Fed. 605 ; Conyerse y. Mears (C. a) 162 Fed.
707; In re Hopper-Morgan Co. (D. C.) 154 Fed. 249; Malloy y. American
Hide Co. (a C.) 148 Fed. 482; Phoenix Bridge Co. y. Castleberry, 131 Fed.
175, 65 C. Oi A. 481 ; Independent School Dist of Sioux City, Iowa, y. Rew,
111 Fed. 1, 49 C. C. A. 198; Union Bank of Richmond, Va., y. Board of Com'rs
of Oxford, N. C, 90 Fed. 7 ; Willis v. Board of Com*rs of Wyandotte Coun-
ty, 86 Fed. 872, 30 0. O. A. 445; Pennsylyanla R. Co. y. Hummel, 167 Fed.
89, 92 C. O. A. 541. See "Courts,** Dec. Dig, (Key No,) S 372; Cent Dig. U
977-979.
100 New York Cent R. Co. y. Lockwood, 17 Wall. 357, 21 L. Ed. 627. See
"Courts** Dec Dig. {Key No.) | 372; Cent Dig. | i/77.
S§ 94-97) POWKB8 AND PBOGEDURE OF FEDERAL COURTS. 189
parties to commercial paper ; '^^ questions arising upon the construc-
tion and effect of particular contracts ;'^^ and questions concerning
the relation of master and servant and the liability for injuries caused
by fellow servants.*** So also of the question of the measure of dam-
ages recoverable in an action of tort, when not governed by the stat-
utes of the state.**' Such also, and necessarily, is the rule when the
questi<Mi concerns the construction of the federal constitution or a
treaty or an act of congress, or the determination of a federal ques-
tion."*
Practice.
An act of congress provides that "the practice, pleadings, and forms
and modes of procedure in civil causes, other than admiralty and
equity causes, in the circuit and district courts, shall conform as near
as may be to the practice, pleadings, and forms and modes of proce-
dure existing at the time in like causes in the courts of record of the
state within which such circuit or district courts are held, any rule of
court to the contrary notwithstanding." **" The effect of this pro-
*— Van Vleet t. Sledge (C, C.) 45 Fed. 748. See **Court$,** Deo. Dig, (Key
Vo.) if S7t, S76; Cent. Dig. Sf 979, 984.
<•! Johnson y. Oharles D. Norton Co., 159 Fed. 861, 86 G. C A. 861 ; Keene
Plve Cent Say. Bank y. Reid, 128 Fed. 221, 59 C. G. A. 225 ; Gilbert y. Amer-
ican Surety Oa, 121 Fed. 499, 57 C. a A. 619, 61 L. R. A. 253 ; City of Ot-
tnmwa, Iowa, v. City Water Supply Co., 119 Fed. 315. 56 O. C. A. 219, 59
I^ R. A. 604 ; Bancroft v. Hambly. 94 Fed. 975, 36 C. O. A. 595. 8ee "Courts^'
Deo. Dig, (Key No,) f S72; Cent, Dig, Si 977-979.
ft Salmons y. Norfolk ft W. R. Co. (O. C.) 162 Fed. 722; Kinnear Mfg.
Co. y. Carlisle, 162 Fed. 988, 82 C. C. A. 81; Pennsylyania Co. y. Fishack,
123 Fed. 465, 59 C. C. A. 269; McPeck y. Central Vermont R. Co., 79 Fed.
590, 25 C. C. A. 110 ; Chandler y. St. Louis ft S. F. R. Co., 127 Mo. App. 34,
106 S. W. 553. And see Snare ft Trlest Co. y. Friedman, 169 Fed. 1, 94 C.
C. A. 869. See ^'Courts,** Dec. Dig. (Key No.) § S72; Cent. Dig. | 977,
«•« Woldaon y. Larson, 164 Fed. 548, 90 C. C. A. 422. See "Courts,'* Dec.
Dig. (Key No.) i S72; Cent. Dig. § 977,
«•* Loolsyllle ft N. R, Co. y. Palmes, 109 U. S. 244, 8 Sup. Ot 193. 27 L.
Ed. 922; Sunset Telephone ft Telegraph Co. y. Pomona (C. C.) 164 Fed. 561;
Johnson y. Crawford ft Yothers (C. C.) 154 Fed. 761; Calhoun Gold Min.
Co. y. AJax Gold Min. Co., 182 U. S. 499, 21 Sup. Ct. 885, 45 L. Bd. 1200. See
**CourUr Dec. Dig. (Key No,) |§ S64S70; Cent. Dig, |§ 950-971,
<•• R«y. St. U. S. § 914 (U. S. Comp. St. 1901, p. 684). The statute authoriz-
ing the federal circuit courts to make rules and orders regulating their prac-
tice (Rey. St U. S. I 918 [U. S. Comp. St 1901, p. 685]) should be construed
In connection with the foregoing proylslon. Importers* ft Traders* Nat Bank
y. Lyons (C C.) 134 Fed. 510. This statute applies not only to cases original-
ly begun In a federal court but also to those remoyed into it from a state
190 FEDERAL JURISDICTION. (Ch. 7
vision is that the federal courts conform their practice, in all cases at
common law, to that of the state in which they sit. If the state has
adopted a code of procedure, proceedings in the federal courts, in ac-
tions at law, are governed by the code. If the state adheres to the
common-law pleading and practice, the federal courts will do the same.
But this statute does not pertain to nor affect the jurisdiction of the
federal courts or the mode of obtaining jurisdiction of the person ; *••
nor will it be held applicable in respect to any matter upon which
congress itself has prescribed a definite rule,*®' nor be followed when
conformity to the state practice would tend to defeat justice in a par-
ticular case or unwisely incumber the administration of justice in the
federal courts.*®* Neither does it apply to proceedings in the ad-
miralty courts,*®* nor to the trial of criminal offenses,*^® nor to appel-
late jurisdiction and procedure.**^ And proceedings in equity are not
affected by this rule. In regard to the jurisdiction in equity, the acts
court. Broadmoor Land Co. ▼. Curr, 142 Fed. 421, 73 C. C. A. 537. Since
the federal statutes do not expressly indicate the practice to be followed on
scire facias on a forfeited recognizance or bail bond, resort must be had to
the procedure which . obtained at common law. Kirk v. United States (C.
C.) 131 Fed. 331. Bee **Couri8,'' Dec Dig. (Key No.) §§ SSl-^S^^; Cent, Dig,
{§ 899-910,
206 Wells V. Olark (C. C.) 136 Fed. 462, affirmed dark v. Wells, 203 U.
S. 164, 27 Sup. Ct. 43, 51 L. Ed, 138. See "Courts^ Dec. Dig. (Key Xo.) | SS8;
Ceyii, Dig, § 901.
207 Meyer v. Consolidated Ice Co. (C. C.) 163 Fed. 400; Smith v. Au Ores
Tp., Mich., 150 Fed. 257, 80 O. C. A. 146, 9 L. R, A. (N. S.) 876; Allnut v.
Lancaster (C. O.) 76 Fed. 131. See "Courts," Dec, Dig, (Key No.) | 340; Cent,
Dig. § 900.
208 Hein v. Westinghouse Air Brake Co. (C. C.) 164 Fed. 79; City of St.
Charles v. Stookey, 154 Fed. 772, 85 a C. A. 494. See ''Courts,'* Dec, Dig.
(Key No.) § 334; Cent. Dig, | 899,
209 The Westminster (D. C.) 96 Fed. 766. See **Courts,". Dec, Dig. (Key
No.) § 336; Cent. Dig, $ 899.
210 Jones V. United States, 162 Fed. 417, 89 C. C. A. 303; United States
V. Kerr (D. C.) 159 Fed. 185 ; United States v. Kilpatrick (D. C.) 16 Fed. 705.
But see United States v. Wells (D. a) 163 Fed. 313 ; United States v. Zara-
fonitls, 150 Fed. 97, 80 C. C. A. 51; United States v. Mitchell (C. C.) 136
Fed. 896. See ''Courts:' Dec, Dig, (Key No,) § 337; Cent, Dig, § 908.
211 Laurel Oil & Gas Co. v. Galbreath Oil & Gas Co.. 105 Fed. 162, 91 a
C. A. 196; Taylor v. Adams Express Co., 104 Fed. 016, 90 C. O. A. 526; Egan
V. Chicago Great Western R. Co. (C. C.) 163 Fed. 'M4 ; ITrancisco v. Chicago
& A. R. Co., 149 Fed. 354, 79 O. a A. 292 ; Detroit United Ry. v. Nichols. 165
Fed. 289, 91 C. a A. 257. See '^Courts," Dec. Dig. (Key No.) § 356; Cent. Dig.
§ 937.
§§ 94-97) POWERS AMD PBOGEDURE OF FEDERAL COURTS. 191
of congress provide that the practice in equity in the federal courts
shall be substantially the same throughout the Union. And according-
ly the federal courts have a uniform and complete system of equity
procedure which is administered without reference to the system pre-
vailing in the particular state.^^* This practice is founded on the
chancery practice in England, but modified by the rules in equity made
by the supreme court. Alterations in the equity jurisdiction of the
states cannot affect the jurisdiction of the federal courts in equity.^ ^'
And under the constitution, the distinction between actions at law and
suits in equity must be preserved in the federal courts, even where
the distinction has been abolished in the state where the court is sit-
ting.*"
Adjunct Powers.
The federal courts possess all the incidental powers which are nec-
essary to enable them to exercise their jurisdiction and fulfill their
appropriate functions. Thus, they may appoint their inferior officers
and see that they discharge their duties ; they may admit and disbar
attorneys ; they may preserve order in their proceedings and maintain
their own authority by punishing contempts against them; they may
make rules of practice; they may issue the writs of attachment, ex-
>is Hurt T. Holllngsworth, 100 U. S. 100, 25 L. Ed. 569 ; United States t.
MUler (C. C) 164 Fed. 444 ; Vitzthum ▼. Large (D. C.) 162 Fed. 685 ; Jones
v. Mutual Fidelity Co. (C. C.) 123 Fed. 506; United Cigarette Mach. Co.
v. Wright (O. C.) 132 Fed. 105 ; Commonwealth Title Ins. & Trust Co. v. Cum-
mtngs (a C.) 83 Fed. 767. Bee '*Oourt8," Dee. Dig. (Key No.) fi S35; Cent.
Dig. li 902-901^.
»i» Reynolds v. Crawfordsvnie First Nat Bank, 112 U. S. 405, 5 Sup. Ct
2ia 28 I* Ed. 733; Holland v. Challen, 110 U. S. 15, 8 Sup. Ct. 495, 28 L.
Ed. 52; In re Broderick's Will, 21 Wall. 503, 22 L. Ed. 599; Hale v. Tyler (C.
C.) 115 Fed. 833 ; Schoolfleld v. Rhodes, 82 Fed. 153, 27 C. C. A. 95 ; American
Ass'n T. wmiams, 166 Fed. 17, 93 C. C. A. 1. See **Court8,** Dec. Dig. (Key
Xo.) I S35; Cent. Dig. n 902-907%.
«i4 Scott T. Neel, 140 U. S. 106, 11 Sup. Ct 712, 35 K Ed. 358; Bennett
T. Butterworth, 11 How. 669. 13 L. Ed. 859; Beatty y. Wilson (a 0.) 161
Fed. 453; Cook t. Foley, 152 Fed. 41, 81 a C. A. 237; Jones v. Mutual
Fidelity Co. (C. C) 123 Fed. 506; Jewett Car Co. v. Klrkpatrick Const. Co.
(C. C.) 107 Fed. 622; Gravenberg v. Laws, 100 Fed. 1, 40 C. C. A. 240; Berkey
T. Cornell (C. C.) 90 Fed. 711. In Louisiana, where the civil law forms the
basis of the jurisprudence of the state, and the distinction between law and
equity never was known, the federal courts must still have distinct branches
for such causes as would be cognizable at common law and such as would
belong to the Jurisdiction of equity. Fenn v. Holme, 21 How. 481, 16 L. Ed.
198. Bee '^Courts;* Dec Dig. (Key A'O.) S 342; Cent. Dig. S 913.
192 FEDERAL JURISDICTION. (Ch. 7
ecution, injunction, and mandamus; they may keep records; and
their judgments operate as a lien upon the lands of the judgment
debtor."*
Habeas Corpus.
The power to issue the writ of habeas corpus, for the purpose of
an inquiry into the causes of restraint of liberty, has been granted
by statute to the various federal courts and their judges in certain
classes of cases where its employment may be necessary to the dis-
charge of their business, or where the deliverance of the prisoner may
be necessary for the vindication of federal law or of the right of
those courts to pass upon it finally. This grant of authority is sub-
ject to the following limitation: ''The writ of habeas corpus shall
in no case extend to a prisoner in jail, unless where he is in custody
under or by color of the authority of the United States, or is com-
mitted for trial before some court thereof, or is in custody for an act
done or omitted in pursuance of a law of the United States, or of an
order, process, or decree of a court or judge thereof, or is in custody
in violation of the constitution or of a law or treaty of the United
States, or, being a citizen or subject of a foreign state, and domiciled
therein, is in custody for an act done or omitted under any alleged
right, title, authority, privilege, protection, or exemption claimed un-
der the commission, or order, or sanction of any foreign state, or under
color thereof, the validity and effect whereof depends upon the law
of nations, or unless it is necessary to bring the prisoner into court
to testify." "•
•18 See Rev. St. U. S. §? 715-727 (U. S. Comp. St. 1901. pp. 579-684). As to
wijt of mandamus, see Board of LlquidatloD of City of New Orleans y. Unit-
ed States, 108 Fed. 689, 47 0. C. A. 587. The federal courts have power to
issue this writ only when ancillary to a jurisdiction already acquired, and
not where the writ is applied for as an original remedy. Bumham y. Fields
(C. C.) 157 Fed. 246 ; United States y. Judges of United States Court of Ap-
peals, 85 Fed. 177, 29 C. C. A. 78; Barber Asphalt Paying Co. y. Morris, 132
Fed. 945, 66 C. C. A. 55, 67 L. R. A. 761 ; United States y. City of New Or-
leans, 117 Fed. 610, 54 C. C. A. 106 ; Large y. Consolidated Nat Bank (C. C.)
137 Fed. 168. So the circuit court of appeals has power to issue writs of
certiorari only in aid of Its appellate jurisdiction, and cannot issue this writ
to review an order of a circuit court which is not appealable. United States
y. Circuit Court, Ninth Circuit, District of Montana, 126 Fed. 169, 61 a C.
A. 315. See '^Courts,** Dec. Dig. (Key No.) f t6i; Cent. Dig. | 801*
ai« Bey. St U. S. §1 751-753 (U. S. Comp. St 1901, p. 592).
S 98) BSM OVAL OF OAU8B8. 193
BEMOVAIi OF OAIJSE8.
98. Im •rder to seeiire the ends for wliioli the K^AAt of Jitdloial
power to the f ederml ■jstem of eourta vrmM nutde hj the oon-
fltitiitiom, vrorifllon has been made, hj atatute, for the re-
atoral of aumj hinds of aotions from the state eonrts in
'whieh they 'were be^nn into the federal eonrts, for trial and
deoisioa, rabjeet to eertain conditions and limitations.
It is competent for congress to authorize the removal to the federal
courts of all classes of cases to which the federal judicial power of
the United States, as defined by the constitution, extends, and to
give them jurisdiction of the cases so removed; and it is no objection
that a case authorized to be so removed is not one of which, under
any act of congress, the federal courts would have had original juris-
diction.**^ Many acts of congress have been passed at different times
on the subject of the removal of causes. But they were almost all
repealed or superseded by the act of August 13, 1888,*** which was
designed to stand as the sole general law on the subject of removals,
and must be looked to as furnishing the whole system in that regard,
except in a few peculiar cases to be presently mentioned. This statute
provides that any suit of a civil nature, at law or in equity, arising
under the constitution or laws of the United States, or treaties, in
which the amount in dispute exceeds $2,000, and which is instituted
in a state court, may be removed by the defendant to the proper cir-
cuit court of the United States. But if the suit, without involving a
federal question, is between citizens of different states, or citizens o^
the same state claiming lands under grants of different states, or be-
tween citizens of a state and aliens, it may be removed by the defend-
ant, provided he is not a resident of the state where the suit is brought.
If there is a separable controversy in any such suit, which is wholly
between citizens of different states and can be fully determined as be-
tween them, then the suit may be removed on the application of either
one or more of the defendants actually interested in such controversy.
Further, if the action is between a citizen of the state where the suit
is brought and a non-resident defendant, the latter may remove the
case to the federal court if he can show that, in consequence of prej-
udice or local influence, he will not be able to obtain justice in the
sir Oaines ▼. Faentee, 92 V. S. 10, 23 L. Bd. 524. See **RefnoviU of Oauiei,*'
D0a. Dig. (Key Vo.) 1 11; Cent. Dig. |§ 29S1.
sit 25 Stat 488 (U. S. Comp. St 1901, p. 509.
BiL.C0H8T.L.9D.]DD.)— 18
194 FEDERAL JURISDICTION. (Cb. 7
courts of the state. It will be observed that the plaintiff cannot re-
move the suit in any event In addition to this statute there are some
earlier acts still remaining in force. Thus, section 641 of the Revised
Statutes (U. S. Comp. St. 1901, p. 620), provides for the more effectu-
al operation of the civil rights acts of congress by authorizing the
removal to the federal courts of civil and criminal cases against any
person who is denied, or cannot enforce, in the state courts, any rights
secured to him by those laws.*^* Another section provides for the
removal of indictments against revenue officers for alleged crimes
against the state, where it appears that a federal question or a claim
to a federal right is raised in the case and must be decided therein.**®
Another act provides for the removal of a personal action brought in
any state court by an alien against a civil officer of the United States,
being a non-resident of the state where the suit is brought ; **^ and
another for the removal of causes where one party claims lands in
dispute under a grant from another state than that in which the suit
is brought.***
It is not permissible for the states to deny the right of removal
in cases where it is granted by congress, nor to put any restrictions
or limitations upon it. Thus where a state statute creates a right of
action for damages for personal injuries under certain circumstances,
an action, founded on the statute, between citizens of different states,
may be brought in a federal court, or removed thereto, notwithstanding
the statute assumes to limit the remedy to suits in the courts of the
>!• Under this act it was held that a negro, prosecated in a state court,
could not remove the case merely because there was such a local prejudice
against his race and color as to deprive him of the benefit of a fair trial.
Texas v. Gaines, 2 Woods, 842, Fed. Cas. No. 13,847. Rev. 8t | 640 (U. S.
Oomp. St. 1901, p. 620), provided that suits against certain federal corpora-
tions might be removed to the federal courts, upon a verified petition **stat-
ing that such defendant has a defense arising under or by virtue of the con-
stitution or of any treaty or law of the United States." It was held under
this act, that the mere fact that the corporation was organized under a law
of the United States was sufficient to secure a removal. Turton v. Union Pac.
B. Go., 3 Dill. 366, Fed. Gas. No. 14,278. But this law was' expressly repeal-
ed by section 6 of the act of August 18, 1888 (U. S. Gomp. St. 1901, p. 515).
See **Removal of Omuees,^ Deo, Dig, {Key No,) | 19; Cent, Dig, |§ 37-55.
sao Tennessee v. Davis, 100 U. S. 257, 25 L. Bd. 648. 8ee ''Bemovol of
Cmueee," Deo. Dig. (Key No.) | U; Cent, Dig. § 50; "Criminal Law," Cem
Dig, 1 198.
SSI Rev. St I 644 (U. S. Gomp. St 1901, p. 628).
t%% Bev. St § 647 (U. & Gomp. St 1901, p. 52^.
§ 98) BEMOVAL OF CAUSES. 196
State.*** Nor is it competent for a state, by legislative enactment con-
ferring upon its own courts exclusive jurisdiction of proceedings or
suits involving the settlement and distribution of decedents' estates,
to exclude the jurisdiction in such matters of the federal courts, where
the constitutional requirement as to citizenship of the parties is met.***
And on the same principle, state statutes permitting foreign corpora-
tions to do business within their limits only on condition that they will
not remove suits against them into the federal courts, are void.***
at* Cblcago & N. W. B. CJo. v. Whltton, 13 Wall. 270, 20 L. Ed. 671. See
**Rewtoval of Causes," Dec. Dig, {Key No.) | S; Cent. Dig. | 4.
st4 Clark r. Beyer, 139 U. S. 96, 11 Sup. Ct 468, 35 L. Ed. 88. iGTee ''Re-
w^aval of Causes,** Deo. Dig. (Key Ko.) ^ 5; Cent, Dig. | 4.
^^9 Home Ins. Ck>. y. Morse, 20 Wall. 445, 22 L. Ed. 366; Hartford Fire
Ina. Go- T. Doyle, 6 Bias. 461, Fed. Gas. No. 6,160; Doyle y. Continental Ins.
Co., 94 U. 8. 635, 24 U Bd. 148; Barron y. Bumside, 121 U. 8. 186, 7 Sup.
Ct 931, 30 L. Bd. 915. Bee **Beinoval of Cogues,** Dec. Dig. iKey No.) | $;
Cent. Di§. I $.
196 VBM POWBB8 OF CONGBBSa. (Cb. 8
OHAFTEB ynL
THE POWERS OP CONGRESS.
99. Constitution of Congress.
100-101. Organization and Goyemment of Congren.
102. Powers of Congress Delegated.
lOd-104. Exclusive and Concurrent Powers.
106. Enumerated Powers of Congress.
106. Implied Powers.
107. Limitations on Powers of Congress.
OOHSTITIJTIOH OF OOHOBE88.
M. All lecislatlTe powers K^Anted t« the United States hj tkm oom-
atitittioii Are vested in a eoncresSy wliioli eonsists of two e*-
ordlaate braaohosy Tis.s
(a) The senate.
0>) The honse of representatiTOS.
The senate is composed of two senators from each state, chosen
by the legislature thereof, for six years, and each senator has one
vote. The senate is arranged in three classes, the term of one of
such classes expiring every second year; so that at every change
in the house of representatives, one-third of the senate also changes.
If vacancies happen by resignation or otherwise during the recess of
the legislature of the state, the governor may make temporary ap-
pointments until the next meeting of the legislature, which shall then
fill such vacancies. No person shall be a senator who shall not have
attained the age of thirty years and have been nine years a citizen of
the United States, and he must, when elected, be an inhabitant of that
state for which he shall be chosen.^ The Vice-President of the United
States is the president of the senate, but he has no vote except in the
case of a tie.
The first article of the constitution provides that the house of rep-
resentatives shall be composed of members chosen every second year
by the people of the several states, and that the electors in each state
1 It is not within the power of a state legislature to add anything to the
qualifications of members of congress as prescribed by the constitution. State
V. Russell, 8 Ohio N. P. 54. See *'UrUted States," Dec Dig. (Key No.) | 11;
Cent. Dig. | 7.
S 99) * OONSTITUnON OF CONGRESS. 197
shall have the qualifications requisite for electors of the most nu-
merous branch of the state legislature. To be eligible to the office
of a representative in congress, it is necessary that the person should
have attained the age of twenty-five years and have been a citizen of
the United States for at least seven years, and he must, at the time
of his election, be an inhabitant of the state choosing him. Represen-
tatives are apportioned among the several states according to the num-
ber of their inhabitants, counting the whole number of persons in each
state, excluding Indians not taxed. ^ But when a state chooses to
deny the right of voting to any of its male inhabitants who are citizens
of the United States and twenty-one years of age, or abridges such
right, except for participation in rebellion or other crime, then the
basis of representation therein shall be reduced in the proportion which
the number of such male citizens shall bear to the whole number of
male citizens twenty-one years of age in such state. When vacancies
happen in the representation from any state, the executive authority
thereof shall issue writs of election to fill such vacancies.
The times, places, and manner of holding elections for senators
and representatives shall be prescribed in each state by the legislature
thereof, but congress may at any time by law make or alter such regu-
lations, except as to the places of choosing senators.
Congress shall assemble at least once in every year, and such meet-
ing shall be on the first Monday of December, unless they shall by
law appoint a different day. A majority of each house constitutes a
quorum for the transaction of business; but a smaller number may
adjourn from day to day, and may be authorized to cwnpel the at-
tendance of absent members, in such manner and under such penalties
as each house may provide.
No senator or representative shall, during the time for which he
was elected, be appointed to any civil office under the authority of
the United States which shall have been created, or the emoluments
whereof shall have been increased, during such time; and no person
holding any office under the United States shall be a member of
either house during his continuance in office.* By the third section
s The constltntlon contains no direction to the states as to the matter of the
apportionment of the state into congressional districts. Richards<Ki y. Mc-
Chesney, 128 Ky. 363, 108 S. W. S22, 82 Ky. Law Rep. 1237. See **UfUted
8tate$,*' Dec. Dig, (Key No,) § 10; Cent. Dig. | 6.
* An act of congress debars persons convicted of certain crimes from "hold-
ing any office of honor, trust, or profit under the government of the United
States." Rev. St U. S. | 1782 (U. S. Comp. St. 1901, p. 1212). But it is held
198 THB POWERS OF CONQBBSS. (Ol. 8
of the fourteenth amendment it is provided that no person shall be a
senator or representative who, having previously taken an oath, as a
member of congress, or as an officer of the United States, or as a
member of any state legislature, or as an executive or judicial officer
of any state, to support the constitution of the United States, shall
have engaged in insurrection or rebellion against the same, or given
aid or comfort to the enemies thereof. But congress may by a vote
of two-thirds of each house remove such disability.
OBOAKIZATIOH ANB OOVEBKMENT OF CONGBESS.
liKK The oonstlti&tion laTesta oonsvess as » body, and each lioiuie of
•onKvesfl, wltli all needfnl power to resvlato its own or*
SanlBation and coTemmeiit.
101. Each hoiuie of oonKV^** possesseo tl&e usual and neoossary par-
liamentary powers, amons "wlileli are tl&e following i
(a^ It ia tbe exelneiTe Jndse of the eleetion, qnalilloation, and re-
turn of ite own meatbere*
(b| Its members are absolutely privilesod froat being questioned
or proceeded against for tbeir speeebes or debates made
in the line of tbeir oAoial duty.
^ Its members, ^F'^'V ^^ session of tbeir bouse, and in going to
and returning from the same, are priTileged froat arrest,
onoept for
(1) Treason.
(2) Felony.
jC3) Breaeb of tbe peaee.
<4) It may make its own rules of proeedure.
<e) It may punish its members for disorderly behaTior, and enpel
a member by a two-thirds TOte, and (in a limited olass of
eases) aiay punish other persons for oonitempts of its au-
thority.
The house of representatives may choose its speaker and other offi-
cers, and may originate all bills for raising revenue.* The senate
has power to choose its officers except its permanent president, and
choose a president pro tempore. It may also propose or concur with
that a United States senator does not hold his office "under the goyemment"
within the meaning of this provision. Burton r. United States, 202 U. S. 844,
26 Sup. Ct 688, 50 L. Ed. 1067. See ''United States,'' Deo. Dig. (Key Vo.)
4 MiUard y. Roberts, 25 App. D. 0. 221, affirmed 202 U. S. 429, 26 Sup. Ct.
674, 50 L. Od. 1000. See ''UnUed Statee," Deo. Dig. (Key No.) 1 17; Cent. Dig.
iii.
§§ 100-101) ORGANIZATION AND GOYERNMENT OF GONGBB88. 199
amendments to revenue bills. Each house has power to judge of the
electi<Mi, return, and qualification of its own members; to compel the
attendance of absent members ; to determine the rules of its proceed-
ings ; to punish its members for disorderly behavior ; ° to expel a
member, two-thirds concurring; and to publish its journal, or with-
hold from publication such parts thereof as in its judgment may re-
quire secrecy. Both houses together (that is, congress as a body) may
make or alter the regulations enacted by the states as to the time,
place, and manner of holding elections for senators and representa-
tives, except as to the places of choosing senators; may appoint a
day for their assembling other than the first Monday of December;
may agree to adjourn for more than three days or to another place;
and may fix their own compensation.
Contested Elections.
The power to judge and determine a contested election to congress
belongs solely and entirely to that branch of congress in which the
contest occurs. It is not a matter over which the states or their
courts have any jurisdiction. The state courts, for instance, cannot
assume to decide whether the election of a United States senator by
the state legislature conforms to the regulations of congress or is
void.* And if a witness in a contested congressional election case,
testifying before a notary public of a state, swears falsely, the courts
of that state have no power to punish him for perjury. He can be
proceeded against only in the federal courts and under the federal
criminal law.^ Congress has power to regulate elections held in the
states for membership in its own body, and to provide for the punish-
ment of frauds and crimes committed at such elections.*
• See In re Chapman, 166 U. S. 661, 17 Sup. Ct 677, 41 L. Ed. 1154. See
''United Btateer Deo. Dig. {Key No.) || i^ 17; OetU. Dig. |8 9, 11.
• Opinion of Justices, 12 Fla. 686. The question whether a state "primary
election law,'* permitting the electors of each party to express their choice of
a candidate for the United States Senate, contravenes tlie provision of the
federal constitution for the election of United States senators by the state
legislature, is not a Judicial question for the courts to determine, but rests
CTtlrely with the United States Senate. State v. BlaisdeU (N. D.) 118 N. Yf.
141. See State v. Frear, 138 Wis. 173, 119 N. ¥r. 894 ; Socialist Party v. Uhl
(Cal.) 103 Pac 181. Bee '^United States,** Dec. Dig. (Key No.) § U; Cent.
Dig. I 9.
t In re Loney, 134 U. S. 372, 10 Sup. Ct. 584, 83 L. Bd. 949. See 'Criminal
Law,** Deo. Dig. (Key No.) § 95; Cent. Dig. § 170.
> U. S. V. Gale, 109 U. S. 66, 3 Sup. Ct 1, 27 L. Bd. 857 ; U. a v. Belvin (C.
C.) 46 Fed. 381. See "'Elections,** Dec Dig, (Key No.) i fll; Cent. Dig. | SS6.
200 THB POWERS OF CONGRESS. (Ch. 8
Privilege of Members.
The sixth section of the first article of the constitution provides
that senators and representatives "shall in all cases except treason,
felony, and breach of the peace, be privileged from arrest during their
attendance at the session of their respective houses, and in going to
and returning from the same ; and for any speech or debate in either
house they shall not be questioned in any other place." As to the last
clause of this provision, it will be more fully considered in connection
with the subject of the guaranties of "freedom of speech and of the
press," in a later chapter. As to the former clause, it should be re-
marked that the privilege of members of congress exempts them not
only from arrest (save in the three excepted cases) on any criminal
process, but also from the service of all process the disobedience to
which is punishable by attachment of the person, such as a subpoena
ad respondendum or ad testificandum, or a summons to serve on a
jury. This results from the reason on which the privilege is based,
which is, that the member ought not to be taken bodily into custody,
or required personally to appear before the courts, when he has su-
perior duties to perform as a legislator in another place.* But this
reason does not hold good with respect to mere citations or writs of
summons in civil actions ; and consequently, the member is not exempt
from the service of such process during the session of his house.^*
The privilege guarantied by the constitution to members of congress
extends as well to delegates from the territories as to senators and
representatives from the states.^*
Congress might by law provide the details which may be necessary
for giving full effect to the enjoyment of this privilege. This has not
been done; but the matter seems to stand, says Jefferson, upon the
following grounds: (1) The act of arrest is void ab initio. (2) The
member arrested may be discharged on motion, or by writ of habeas
corpus, or on a warrant of the house executed by its sergeant at arms
or other proper officer. (3) The arrest, being unlawful, is a trespass
• 1 story, Const | 860; Jeff. Man. § 3; Anderson v. Rountree, 1 Pin. (Wis.)
115. See *'UrUted States^*' Dec. Dig, (Key No,) § 12; Cent, Dig. | 8; ^'Arrest,**
Cent, Dig. 8§ 25, U2; ""Process,'' Cent. Dig. §8 Uh, US.
10 Rhodes y. Walsh, 55 Minn. 542, 57 N. W. 212, 23 L. R. A. 632; Merrick
y. Glddlngs, MacArthur & M. (D. O.) 55. But compare Miner y. Markham (C.
C.) 28 Fed. 387. See *'Un4ted States:* Dec, Dig, (Key No,) | It; Cent. Dig, |
8; "Arrest;' Cent. Dig. §8 25, U2; **Process," Cent. Dig. §| lU, ^45.
11 Doty y. Strong, 1 Pin. (Wis.) 84. See **Vnited States," Dec. Dig. (Key No,)
8 12; '"Arrest;* Cent, Dig. § 2S.
8§ 100-101) ORGAHIZATION AND GOYEKNMENT OF GONGBE8S. 201
for which the officer making it and others concerned are liable to ac-
tion or indictment in the ordinary courts of justice, as in other cases
of unauthorized arrest. (4) The court before which the process is
returnable is bound to act as in other cases of unauthorized proceed-
ing, and liable also, as in other similar cases, to have its proceedings
stayed or corrected by the superior courts.^*
Rules of Procedure.
The supreme court has sustained the validity of a rule of the house
of representatives which authorized the counting in of members who
were present in the house but refused to vote, in order to make up a
quorum. "The constitution," it was said, "empowers each house to
determine its rules of proceeding. It may not by its rules ignore con-
stitutional restraints or violate fundamental rights, and there should
be a reasonable relation between the mode or method of proceeding es-
tablished by the rule and the result which is sought to be attained.
But within these limitations all matters of method are open to the
determination of the house, and it is no impeachment of the rule to
say that some other way would be better, more accurate, or even more
just. It is no objection to the validity of a rule that a different one
has been prescribed and in force for a length of time. The power to
make rules is not one which once exercised is exhausted. It is a con-
tinuous power, always subject to be exercised by the house, and,
within the limitations suggested, absolute and beyond the challenge of
any other body or tribunal." *•
Power to Punish for Contempts.
There is no power given by the constitution to either house of con-
gress to punish for contempts, except when committed by its own
members. And the supreme court has decided that neither house
possesses any general power to punish for contempts, and that they
cannot, by the mere act of asserting a person to be guilty of a con-
tempt, establish the right to fine or imprison, or preclude redress
through a collateral inquiry into the grounds on which the order was
made. Except in a case where the constitution expressly confers upon
one or the other house powers which are in their nature somewhat
judicial, and which require the examination of witnesses, they possess
no power to compel, by fine or imprisonment or both, the attendance
of witnesses and answers to interrogatories which do not relate to
IS Jeff. ICan. | 8.
IS U. S. y. Ballln, 144 V. S. 1, 12 Sup. Gt. 507, 96 L. Bd. 821. Bee ^'UnUed
Staiee,*' Dee. Dig. {Key No.) 1 18; Cent. Dig. I It.
202 THB POWBRS OF CONGRESS. (Ch. 8
some question of which the house has jurisdiction. But since each
branch of congress has certain specific powers to make orders, which
require the examination of witnesses, in that class of cases, where a
witness refuses to testify, the house may enforce this duty by fine and
imprisonment as a punishment for contempt. But these occasions
are limited to such cases as the punishment of its own members for
disorderly conduct or failure to attend sessions, or in cases of contested
elections, or in regard to the qualifications of its own members, or in
case of an effort to impeach an officer of the government, and perhaps
a few other cases.**
POWERS OF OOHGBESS DELEGATED.
102. The soTemment of ike United States beiiic one of delegated
powers, tlie Held of its legislattTO authority ia not nnbonnd-
ed. The poirer of oongress to . pase any given law la de-
rived from and limited by the federal eonstitntion.
The power of congress to pass any given law must, on the one hand,
be found in some express grant of. authority given to congress by
the constitution, or necessarily implied in its terms, or be found nec-
essary to carry into effect such powers as are there granted. And on
the other hand, the act in question must not be in violation of any
of the prohibitions laid upon congress by the same instrument.** As
to the ultimate determination of the limits of federal power, it is now
settled, both by authority and precedent, that the government of the
Union is to judge, in the first instance at least, of the extent of the
powers granted to it, as well as of the means of their proper exercise.
In practice, the constitutionality of any act of congress must be deter-
mined by the federal judiciary. And if the general sentiment of the
people is not in accord with its findings, redress must be sought at the
polls.** But the powers of congress in respect to investigation and
14 Kilbonm y. Thompson, 103 U. S. 168, 26 L. Ed. 377; Anderson r. Dunn,
6 Wheat. 204, 5 L. Ed. 242. See, also, Miller, CouBt 414 ; 2 Hare, Am. Const.
Law, 851. See **UtUted States," Dec. Dig, (Key No.) § 21; Cent. Dig, % IS.
IB Martin y. Hanter, 1 Wheat 304, 326, 4 L. Ed. 97; Calder y. Bull, 3 Dall.
386, 1 L. Ed. 648; Briscoe y. Bank of Kentucky, 11 Pet. 257, 9 L. Ed. 709;
Oilman y. Philadelphia, 3 Wall. 713, 18 L. Ed. 96; Kllbourn y. Thompson, 103
U. 9. 168, 26 L. Ed. 377; 2 Story, Ck>n8t | 1907. See *'UnUed States," Deo.
Dig. (Key No.) 8 6; Cent. Dig. § 4; '"States," Dec. Dig. (Key No.) | 4; Cent.
Dig. I 2.
i« gee McCulloch y. Maryland, 4 Wheat 316, 4 L. Ed. 579 ; Ferria ▼• Goaver,
§§ 103-104) EXGLUBiyE AND CONOURBENT POWEBfl. £03
legislation are not absolutely identical ; but the power of investigation
is the wider and extends to matters on which it could not constitution-
ally legislate directly, if they are reasonably calculated to afford in-
formation useful and material in the framing of constitutional legis-
lation.*^
EZCnLVSIVE ANB OOHOUBRIOrT POWERS.
103* Some of ike powers srAated to eomgrBBs hj tl&e oonatitiitlon aro
▼eoted ezoliulTolj la that bodji some otbors may lie exer-
eised eoneiwreiitly hj the states in the absenee of aetton
hj the natloBal corenunent thereon. A power Tested la
eoacr«M i« exelnslTe ef all state aetloa on the same sitb-
Jeet whea—
(a) It is BuUle so hj the express laasvase of the oenstitittiomi
<b) Where ia oae part of the eoaptitatloa aa authority is sraat-
ed to eoacess aad ia aaother part the states are prohibited
from exereisias a lihe authority,
(e) Where a similar power ia the states urould be iaeoasisteat
with aad repasaaat to the authority graated to ooacess,
that isy where the subjeet matter of the power is aatioaal
aad eaa be coTeraed oaly by a uaiforat system*
104. Ia eases aot fallias uader aay of the foresoias heads, the
states may lawfully pass laws relatlas to the subjeet of the
power, uaiess aad uatil ooagress shall take aetioa for exer-
*'*«<^g the power with whieh it is iavestod. But ia sueh
eases of eoaeurreat authority, urhea ooaKress exeroises its
power it thereby supersedes aad suspeads all existiac state
logislatioa oa the same subject, aad prohibits similar state
lesielatioa uatil it shall asaia leave the Held uaoeeeupied.i*
As an illustration of the first species of exclusive powers mentioned
above, it is provided by the constitution that congress shall "exercise
exclusive legislation in all cases whatsoever" over the district to be ap-
propriated as the seat of government. Here the effect is to shut out
11 Cal. 175 ; 1 Story, Const. | 432. Bee ^'UnUed States^ Dec. Dig. (Key No,) 8
S; Cent. Dig. § 4; "States^' Dec. Dig. (Key No.) | 4; Cent. Dig. | f.
17 Interstate Commerce Commission y. Harrlman (C. C.) 157 Fed. 432. Bee
''United States,** Dec. Dig. (Key No.) § 23; Cent. Dig. i 15.
IS Gibbons y. Ogden, 9 Wheat 1, 6 L. Ed. 23; McOaHoch y. Maryland, 4
Wheat 31G, 4 L. Ed. 579; Houston y. Moore, 5 Wheat 1, 6 L. Ed. 19; Brown
y. Maryland* 12 Wheat 419, 6 L. Ed. 078 ; Weaver v. Fegely, 29 Pa. 27, 70
Am. Dec. 151 ; Potts y. Smith Mfg. Co., 25 Pa. Super. Ct 206. Bee **8tate9,'*
Deo. Dig. (Key No.) | 4; Cent. Dig. I f ; **Vtiited States,** Dec Dig. (Key No.)
I 5; Cent. Dig. | 4*
204 THB POWERS OF CONGRBSS. (Ch. 8
not only state legislation conflicting with the regulations of congress
but all state legislation whatever. As an illustration of the second
class of exclusive powers, it will be noticed that one of the enumerated
powers of congress (but not in terms exclusive) is the power to "coin
money." In another part of the constitution it is provided that "no
state shall * * * coin money.*' This necessarily invests congress
with the sole right to establish a mint. In the third place, if the sub-
ject matter of the power is of such a nature as to relate to the concerns
and the prosperity of the nation as a whole, and can be properly reg-
ulated only by a uniform national law, and if any action by the several
states upon it would be inconsistent with that plenary control of con-
gress which can alone effectuate these objects, then the authority
of congress is exclusive, though not made so in express words.^*
There is another sense in which the powers of congress may be said
to be exclusive. The states cannot, by indirect attacks, prevent their
being carried into effect or unduly hamper their exercise. Where any
right or privilege is subject to the regulation of congress, it is not com-
petent for state laws to impose conditions which shall interfere with
the right or diminish its value. ^® And on the same principle, it is
not within the constitutional power of a state to lay any tax upon the
instruments, means, or agencies provided or selected by the general
government to enable it to carry into execution its legitimate powers
and functions.**
But in all cases where the powers vested in congress are not, for
any of the foregoing reasons, exclusive, the states may legislate on
the same subject matter. But in regard to these cases of concurrent
powers, "the concurrency of the power may admit of restrictions or
qualifications in its nature or exercise. In its nature, when it is capable
from its general character of being applied to objects or purposes which
would control, defeat, or destroy the powers of the general govern-
ment. In its exercise, when there arises a conflict in the actual laws
and regulations made in pursuance of the power by the general and
state governments. In the former case, there is a qualification in-
!• Leisy y. Hardin, 135 U. S. 100, 10 Sup. Ct 681, 84 L. Ed. 128. Bee
States," Deo. Dig. (Key No.) § 4; OerU. Dig. § ».
20 CrflnBon y. Smith, 37 Mich. 309, 26 Am. Rep. 514. See **State8,^ Dec. Big.
{Key No.) § 4; Cent. Dig. § 2.
21 McCulloch y. Maryland, 4 Wheat. 429, 4 L. Ed» 579; Osbom y. Bank of
U. Sw, 9 Wheat. 738, 6 L. Ed. 204 ; Ward y. Maryland, 12 Wall. 418» 20 L. Ed.
449. Bee **Taxation,*' Dec. Dig. (Key No.) { 6; Cent. Dig. { 18.
it
§105) SMTTinBRATED POWSB8 OF GONaRSSS. 205
grafted upon the generality of the power, excluding its application to
such objects and purposes. In the latter case, there is (at least gener-
ally) a qualification not upon the power itself, but only upon its ex-
ercise, to the extent of the actual conflict in the operations of each." *■
Furthermore, in all such cases of concurrent authority, the enact-
ments of the individual states can be no more than provisional ; that
is to say, their continuance in force depends upon the determination
of congress not to exercise its own power over the subject by a general
law. If congress shall choose to enter upon the domain confided to
its jurisdiction, and to regulate the same by a statute, the result is
that all existing state laws on the same subject are superseded and
suspended, at least so far as they are inconsistent with the act of con-
gress. The federal law does not make them invalid, if they were not
so before. Neither does it repeal them. It merely assumes to itself en-
tire control of the whole subject and leaves nothing for the state laws
to operate upon. But no change of policy on the part of the state is
indicated, such as would render it inconsistent to enforce the provi-
sions of a statute which had been repealed. Hence a penalty incurred
for a violation of the state law before the passage of the act of congress
may be recovered after its passage.**
ENUMERATED POWERS OF OOHORES8.
105. The speelflo powem cranted to eonsress In ike llrst artiole of
tbe eonstttntlon ar« as follows s
(a) To lay and ooUeot taxes, duties, imposts, and excises, to pay
the debts and provide for tbe oommon defense and general
welfare of tl&o United States.^*
(b) To borrow atoney on tbe eredit of tbe United States.
(e) To re^nlate eonunereo with foreign nations and amons tbe
several states and with the Indian tribes,
(d) To establish an nniferm mle of naturalisation and nniform
laws OB the snbjeot of bankmptoies thronchont the United
States.
>a 1 Btory, Ck>D8t | 447.
*• Sturgis y. Spofford, 46 N. T. 44a nee ^'States,'' Dec. Dig. (Key No.) i 4;
Cent. Dig. | 2.
14 The words ''provide for the common defense and general welfare of the
United States" do not confer on congress any distinct and substantial power
to enact any legislation ; they refer to the purposes of taxation. United States
V. Boyar (D. C) 86 Fed. 426. See **UrUted Btates,'* Deo. Dig. {Key No.) § 22;
Cent. Dig, | U.
206 THB P0WBR8 OF CONOBB88. (Ch. 8
(e) To eoln atonej, resvl»ta tkm tbIuc tl&ereof » and of f orolgn eolBt
mnd fix tl&o itaBdmrd of ireisl&ts and measnrea.
(f) To provldo for tho ytmloliinont of oonnterf eitiim; tlio sociiritlos
and onrroat ooln of tho Vnitod Statoo.
(s) To ofltablisli poot ofioos aioid post roads.
00 To promoto tho progross of soienoo and vflofvl arts by soovr-
ins for limitod times to authors and inventors the oxolnsiTe
right to their respeetiTe writings and diseoreries.
(i) To oonstitnte tribunals inferior to the supreme oonrt.
CJ> To define and pnnish piraeies and felonies eommitted on tho
high seas and offenses against the lav of nations.
Ch>> To deelare war, grant letters of marqne and reprisal, and
mahe mles eoneeming eaptnres on land and urater.
CI) To raise and snjpport anaies (but no appropriation of nLonojr
to that nse shall be for a longer term than two years.)
(m) To provide and maintain a navy.
<n) To mahe mles for tho government and regulation of the land
and naval f orees.
Co) To provide for '*^'''*'-g forth tho militia to ezeoute the laurs
of the Vniom, suppress insuiree lions, and repel invasions.
Cp) To provide for organising, arming, and disciplining the militia,
and for governing sueh part of them as may be employed
in the servioe of tho United States, reserving to the states
respectively the appointment of the oAcers and the au«
thority of training tho mJHtJa according to the discipline
prescribed by congress.
C«) To ezercise exclusive legislation in all eases urhatsocver over
such district inot ^Tur-f 1l»g tf miles square) as may by
cession of particular states and the aoceptance of congress
become the seat of government of the United States, and
to ezercise lihe authority over all places purchased by tho
• consent of the legislature of the state in which the same
shalFVer for the ero€»tion of forts, magasincs, arsenals, doch-
yards, and other needful buildings.
Cr) To mahe all laws which shall be necessary and proper f ov ear»
rying into executimi the foregoing pourers and all other
powers vested by this constitution in tho govenunent of
the United States or in any department or oAcer thereof.
Cs) Moreover, in the fourth article is found the foUowingi ''Con*
gross shall have power to dispose of and mahe all needful
rules and regulations respecting the territory or other prop*
erty belonging to the United States.**
Ct) And finally, ''Hew states may be admitted by the congress into
tho Union.**
Taxation.
By the terms of the constitution, congress shall have power "to lay
and collect taxes, duties, imposts, and excises, to pay the debts and pro-
S 105) SMUMERATED POWERS OF OONORE88. 207
vide for the common defense and general welfare of the United States,
but all duties^ imposts, and excises shall be uniform throughout the
United States." Article 1, § 8. "No capitation or other direct tax
shall be laid unless in proportion to the census or enumeration herein-
before directed to be taken. No tax or duty shall be laid on articles
exported from any state." Article 1, § 9. As the constitution orig-
inally stood, the following language was found in its first article and
second section: ^'Representatives and direct taxes shall be apportion-
ed among the several states which may be included in this Union ac-
cording to their respective numbers," etc. But the fourteenth amend-
ment provides that "Representatives shall be apportioned among the
several states," etc. The omission of the words "and direct taxes" from
the amended clause appears to do away with the necessity of this method
of apportionment of such taxes, in so far as it depended upon the orig-
inal clause. But the provision of the ninth section of the first article
that no "direct tax shall be laid unless in proportion to the census or
entmieration," probably accomplishes the same result. And if a direct
tax should again be laid, it is not likely that it would be attempted
to levy it in a different manner from that which was adopted before
the fourteenth amendment was in force.
The general nature of the power of taxation, and the constitutional
limitations upon its exercise, will be fully considered in the chapter
devoted to that subject. At present it is designed only to consider the
power as vested in congress under the words quoted above, and the
e3q>ress limitations of the constitution. This power, as thus vested, is
not unlimited. On the contrary, it is limited both in respect to the
purposes for which it may be exercised and in respect to the manner
in which taxes shall be levied.
In the first place, the federal power of taxation is limited in respect
to the purposes for which it may be exercised. The language of the
clause of the constitution which contains the grant of this power is so
far ambiguous as to admit of several possible meanings. But it is the
universally accepted interpretation that the clause is to be read as if it
declared that "congress shall have power to lay and collect taxes, etc.,
in order to pay the debts and provide for the common defense and gen-
eral welfare of the United States." *• It appears therefore that con-
gress possesses the power of taxation, not for any and all purposes, but
only for the three enumerated purposes, viz., to pay the debts of the
ti Pom. €k>iist Law, i 278 ; MiUer, Qomt pp. 228-281 ; 1 Stoiy, Oonot U
907-021.
208 THB POWERS OF CONGRESS. (Ch. B
United States, to provide for the common defense, and to provide for
the general welfare of the United States. As the first two objects
are very clear and specific, it is evident that questions as to the consti-
tutional validity of any tax law of congress will chiefly arise under the
third. That is, the question will be, does the tax in fact provide for,
or promote, the general welfare of the United States? It is on this
ground that objection has been taken to the constitutionality of the
system of a protective tariflf.**
Attention should be given to the four words used in the clause under
consideration and their different meanings. ''Taxes" is the most gen-
eral and comprehensive of the four. It is a generic term, and includes
duties, imposts, and excises. But as these latter terms have specific
meanings, and as the larger word is sometimes used in contradistinc-
tion to the terms of more restricted scope, it was proper that they should
all be enumerated in the constitution. "Duties" is a term of larger
import than "imposts." They both relate to commercial intercourse,
but duties are leviable on either imports or exports, while imposts re-
late only to goods brought into the country from abroad.*' Practical-
ly, however, the use of the word "duties" adds nothing to the scope
of this grant of power, for another clause of the constitution forbids
the imposition of duties on articles exported from any state. "Excises"
mean taxes laid upon the manufacture, sale, or consumption of com-
modities within the country and upon licenses to pursue certain oc-
cupations.** A "capitation tax" is a poll tax. It is a fixed sum exact-
ed from each person, without reference to his property or pursuits.**
«• See 1 Story, Ck)nst. f § 958-974 ; Yeazle Bank v. Fenno, 8 Wall. 533, 19 L.'
Ed. 482; Merchants' Nat. Bank v. U. S., 101 U. S. 1, 25 L. Ed. 979; In re
Stembach (C. C.) 45 Fed. 175. See **Custom8 Duties," Dec, Dig. {Key No.) I
«; Cent. Dig. 8 «; **Tawation;* Dec. Dig. (Key No.) § 18; Cent. Dig. I 47.
«T Marriott v. Bmne, 9 How. 619, 13 L. Ed. 282; Hancock v. Singer Mfg.
Co., 62 N. J. Law, 289, 41 Atl. 846, 42 L. R. A. 852 ; Brown v. Maryland, 12
Wheat. 419, 6 L. Ed. 678 ; Pacific Ins. Co. v. Soule, 7 Wall. 433, 19 L. Ed. 95 ;
Norris v. Boston, 4 Mete. (Mass.) 282; Union Bank v. Hill, 3 Cold. (Tenn.)
325. See **Custoin8 Duties,** Dec. Dig. (Key No.) 8 «; Cent. Dig. | 2; ^'Taxa-
tion," Dec. Dig. {Key No.) § 18; Cent. Dig. f 47.
a» State v. Guilbert, 70 Ohio St 229, 71 N. E. 636; Oliver v. Washington
MUlB, 11 Allen (Mass.) 268, 274; Com. v. Lancaster Sav. Bank, 123 Masa 493.
See "Taxation,** Dec. Dig. (Key No.) I 53; Cent. Dig. I 127.
a» Edye v. Robertson, 112 U. S. 580, 5 Sup. Ct. 247, 28 L. Ed. 798 ; Head
Money Cases (C. C.) 18 Fed. 135 ; Leedy v. Bourbon, 12 Ind. App. 486, 40 N.
E. 640 ; State t. Bell, 61 N. C. 76. See ''Tarnation;* Deo. Dig. {Key No.) 8f 55,
106; Cent. Dig. %i 192, 204*
S 106) BNUMBRATED POWKB8 OF OONOBB88. 209
But the chief difficulty has arisen in determining what is the difference
between direct taxes and such as are indirect. In general usage, and
according to the terminology of political economy, "a direct tax is
demanded of the person who it is intended shall pay it. Indirect taxes
are demanded from one person in the expectation that he will indem-
nify himself at the expense of others." •• When the question of the
difference between direct and indirect taxes first came before the su-
preme court of the United States, it was held that the term "direct,"
as used in the constitution, was to be taken in a narrower sense than
that above indicated ; and it was ruled that only two classes of taxes
could be considered as coming under this designation, viz., taxes on
land and capitation taxes.*^ But these decisions have recently been
overruled, and it is now held that income taxes, whether levied on the
issues and profits of real estate or on the gains and interest from per-
sonal property, are also "direct taxes" within the meaning of the con-
stituticMi.'^ It seems, however, that a tax on the circulation of state
banks,'* or a succession tax imposed upon "every devolution of title
to real estate," ** are not to be included in this category.
In regard to the manner of laying taxes, the federal authorities are
placed under certain restrictions. Capitation and other direct taxes
must be laid in proportion to the census or enumeration. "Duties,
imposts, and excises shall be uniform throughout the United States."
The requirement of uniformity in tax laws has given rise to a great
deal of litigation and to many various or even conflicting rulings of
the courts. It will be more fully considered in another connection. At
present it is only necessary to remark that this requirement of the
to Brewers* Ass'n v. Attorney General [1897] App. Gas. 231 ; Toronto Bank
▼. Lambe, 12 App. Gas. (Eng.) 575; Hastings Gounty v. Pouton, 5 Ont. App.
543 ; WUson v. Ghlcago Sanitary Diet, 133 III. 443, 27 N. E. 203 ; Soath Nash-
vUle St R. Go. V. Morrow, S7 Tenn. 406, 11 S. W. 348, 2 L. R. A. 853. See
^'Internal Revenue,** Dec. Dig, (Key No.) | 6; Cent. Dig. § 7.
51 Springer v. United States, 102 U. S. 586, 26 L. Ed. 253 ; Pacific Ins. Go.
T. Soole, 7 WalL 433, 19 L. Bd. 95 ; Hylton v. United States, 3 Dall. 171, 1 L.
Ed. 556. See **lniemal Revenue,*' Deo. Dig. (Key No,) i 6; Cent. Dig, i 7.
52 Pollock ▼. Farmers' Loan & T. Go., 158 U. S. 601, 15 Sup. Gt 912, 39 L.
Kd. lioa See ''Internal Revenue," Dec. Dig. (Key No.) §§ 6, 7; Cent. Dig. f|
7-iO.
M Veazle Bank v. Fenno, 8 Wall. 533, 19 L. Ed. 482. See ''Internal Reve-
nue," Dec. Dig. (Key No.) f I 2, 6; Cent, Dig. If 2, 7.
t« Sehol^y ▼. Row, 28 Wall. 331, 23 L. Ed. 99. See "Internal Revenue," Dec.
Dig. (Key No.) H 6, 8; Cent. Dig. H 7, 11, 12; "Taxation," Dec Dig. (Key No.)
H 8Se-$06; Cent. Dig. If 1673-1136.
Bl.Gonst.L.(3d.Ed.)— 14
210 THS POWBBS OF CONGRESS. (Ch, 8
constitution is complied with if the tax operates with the same effect
in all places where the subject of it is found. There is no want of
uniformity simply because the thing taxed is not equally distributed in
all parts of the United States.**
The power of taxation necessarily includes the authority to make
provision for the collection of the taxes in all such modes and by all
such means as are not inconsistent with the constitutional guaranties
to private rights and property. Various methods of collection have
been resorted to by congress at different times. The customs duties
may be enforced by seizure and detention of the dutiable articles. Some
of the internal revenue taxes are collected by the sale of stamps to be
placed upon the specific articles taxed ; others, by the issue of licenses
upon payment of a fixed fee. The direct taxes levied during the late
war were collected, when necessary, by sale of the delinquent lands.
The limitations upon the taxing power of the federal government
must be sought in the constitution, and nowhere else. Many of these
limitations we have already incidentally considered, as in regard to the
purposes for which taxes may be levied, and the method of assessing
direct taxes. An important provision is that which prohibits the im-
position of taxes or duties on articles exported from any state. It has
been held that a requirement that articles intended for exportation shall
be stamped, in order to prevent fraud and secure the carrying out of
the declared intent, is not laying a duty on such articles, although a
small charge is made for the stamp.'* But if the stamp were required
as a source of revenue to the government, it would amount to a tax,
and therefore be invalid.'^
Money Powers of Congress.
Congress possesses power, under the constitution, to borrow money
on the credit of the United States, and to coin money and regulate
the value thereof and of foreign coin, and to provide for the punish-
ment of counterfeiting the securities and current coin of the United
States. The states equally possess the power to borrow money on their
own credit, but they are prohibited by the constitution from coining
money or emitting bills of credit and from making anything but gold
«BHead-Money Cases, 112 U. S. 580, 5 Sup. Ct 247, 28 L. Ed. 798. Bee
""Taxation*' Dec, Dig. (Key No,) S§ S9-45; Cent Dig. §S 68-103.
8« Pace V. Burgess, 92 U. S. 372, 23 L. Ed. 657. See ''Commerce,'* Dec. Dig.
{Key No.) f 77; Cent. Dig. S 61.
8 7 Almy V. California. 24 How. 169, 16 L. Ed. 644. See "'Commerce,** Dec
Dig. {Key No.) | 77; Cent. Dig. | 6tf.
§ 105) ENUMERATED POWERS OF CONORESB. 211
and silver coin a tender in payment of debts. In this connection should
be noticed the provisions pledging the public faith to the security of
the public debt. These are the first paragraph of the sixth article, as
follows: "All debts contracted and engagements entered into before
the adoption of this constitution shall be as valid against the United
States under this constitution as under the confederation," and the
fourth section of the fourteenth amendment, as follows : "The valid-
ity of the public debt of the United States authorized by law, includ-
ing debts incurred for payment of pensions and bounties for services
in suppressing insurrection or rebellion, shall not be questioned. But
neither the United States nor any state shall assume or pay any debt
or obligation incurred in aid of insurrection or rebellion against the
United States," or any claim for the loss or emancipation of any slave ;
but all such debts, obligations, and claims shall be held illegal and void."
Same — Borrowing Money.
As the grant of power to congress to borrow money is general and
unlimited in its terms, it follows, on settled principles of interpreta-
tion, that it rests in the exclusive discretion of congress to select the
means or methods of exercising the power. Money may be raised by
the issue and sale of government bonds, or by issuing certificates of in-
debtedness, or scrip, or other forms of obligations for debts or services
rendered. Or the same purpose may be accomplished by the issue of
treasury notes, either directly, or indirectly through the instrumentality
of the national banks. This principle was settled at an early day in
our national history by the decisions sustaining the charter of the Bank
of the United States. This institution was established as a useful and
convenient means of aiding the general government in the management
of its finances, negotiating its loans, collecting its revenues, and regu-
lating the currency. The power of congress to create such a corpora-
tion, though denied by the executive, was sustained by the supreme
court.** As the power of congress to borrow money is unlimited in
respect to the means which may be employed in its exercise, so also is
it unlimited in respect to the purposes for which money may be raised.
The grant must necessarily be taken as coextensive with the needs and
activities of the government. Every purpose for which money may be
legitimately expended by the United States is therefore also a purpose
for which congress may lawfully exercise its power to borrow money.
sa McCnlloch v. Maryland, 4 Wheat 316, 4 L. Ed. 579 ; Osborn v. Bank of
U. S., 9 Wheat. 788, 6 L. Ed. 204. See, also, 2 Story, Const. §S 1259-1271. See
**Bank8 and Banking," Dec, Dig. {Key No.) S 2SS; Cent. Dig. { 879.
212 THB POWERS OF CONGRESS. (Clu 8
Nor can this power be in any way controlled or interfered with by the
states. The granting of the power is incompatible with any restraining
or controlling power, and the declaration of supremacy in the consti-
tution is a declaration that no such restraining or controlling power
shall be exercised.'* It follows that the states cannot tax the loans
of the United States, whether they be evidenced by bonds, notes, scrip,
or otherwise, nor its financial operations, however they may be conduct-
ed, nor the means or instrumentalities, such as banks, employed by the
government in its monetary system, unless with the consent of the
federal government, and then only in strict compliance with the terms
of such permission.**
Same-Coining Money,
This power includes the power to establish mints and assay offices.
The power to regulate the value of coined money includes the authority
to determine what denominations of money shall be struck at the mint,
and also to fix the standard of purity, that is, to determine what pro-
portion of pure metal and what proportion of alloy shall enter into
the composition of each coin. The constitution does not declare what
coins shall be struck, nor prescribe the metal or metals to be used for
this purpose. The choice of congress is entirely unrestricted. And
if a bimetallic standard is to be maintained, the power to regulate the
coinage includes the right to make such adjustments as may be neces-
sary to maintain a uniform standard. The power to regulate the val-
ues of foreign coins, in so far as they are employed within this country
in transactions to which the government is a party, is a necessary cor-
relative of the powers already noticed. In point of fact, the value of
the coins of some foreign nations is subject to such fluctuations that
this power is frequently very necessary to preserve an)rthing like a uni-
form standard. The latest action of congress taken in pursuance of
this power is found in the act of October 1, 1890,** which provides that
"the value of foreign coins, as expressed in the money of account of
the United States, shall be that of the pure metal of such coin of stand-
ard value; and the values of the standard coins in circulation of the
»» 2 Story, Const. 8 1055 ; Weston v. City Council of Charleston, 2 Pet 449,
7 L. Ed. 481 ; Bank Tax Case, 2 Wall. 200, 17 L. Ed. 793 ; Van Allen y. Assess-
ors, 3 WaU. 573, 18 U Ed. 229. See **TaxatUm,** Deo. Dig. {Key No.) |f 7, 11;
Cent. Dig. U 19, 28.
«o The Banks v. The Mayor, 7 Wall. 16» 19 L. Ed. 57 ; Bank v. Supervisors,
7 Wall. 26, 19 L. Ed. 60. See ''Taxation,'' Dec Dig. (Key No.) U 7, 11, B16;
Cbnt. Dig, S§ 19, 28, S52.
«i 26 Stat. 624, S 52.
§ 106) SNUMBBATED POWBB8 OF 0ONORS8& 213
various nations of the world shall be estimated quarterly by the director
of the mint, and be proclaimed by the secretary of the treasury/'
Same — Legal Tender.
In 1862 and 1863, during the prevalence of the civil war, congress
authorized the issue of a large amount of treasury notes, and provided
that they should be a legal tender in payment of private debts and also
of all public dues except duties on imports and interest on the public
debt. These notes went into immediate circulation, and largely caused
the gold and silver coin to disappear from the market. When the con-
stitutionality of this law was first contested before the supreme court
of the United States, it ¥^s adjudged that while the statute was valid
in so far as it might apply to the payment of debts thereafter to be con-
tracted, there was no constitutional authority for its attempted applica-
tion to debts existing at the time of its passage.^' But shortly after-
wards the question came again before the court, and this decision was
reversed. The personnel of the court had in the mean season been
changed, and a majority was now in favor of sustaining the validity
of the statute. It was accordingly adjudged that it was within the
constituticmal power of congress to make such notes a legal tender
in payment of debts, private as well as public, and pre-existing as well
as subsequently contracted.^'
Appropriations and Expenditure of Public Money.
The constitution provides that "no money shall be drawn from the
treasury but in consequence of appropriations made by law ;" *^ and
congress has further provided that "all sums appropriated for the vari-
ous branches of expenditure in the public service shall be applied solely
«sHepbnm ▼. Griswold, 8 Wall. 603, 19 L. Bd. 613. See "ConaiUutional
IriMO,** Dec Diff, {Key No.) S 154; Cent. Dig. % 454.
«s Legal Tender Cases (Knox t. Lee), 12 Wall. 457, 20 L. Ed. 287; Dool«7
T. Smltb, 13 Wall. 604, 20 L. Ed. 547 ; Blgler v. Waller, 14 Wall. 297, 20 L. Bd.
891 ; JaUllard v. Greenman, 110 U. S. 421, 4 Sup. Ct 122, 28 L. Bd. 204. Peiv
80D8 entering Into a contract which calls for the payment of mone^ have the
right to specify the currency in which the payment shall be made (as gold or
''coined money")t and if they do so, the courts will require the terms of the
contract to be obeerved, and in giving Judgment upon it will direct that the
Judgment shall be paid in the medium specified by the parties. Bronson v.
Bodes* 7 Wall. 229, 19 L. Ed. 141 ; Butler v. Horwitz, 7 Wall. 258, 19 L. Ed.
149 ; TrebUcock v. Wilson, 12 Wall. 687, 20 L. .Ed. 400. See ''United States,'*
Dec. Dig. {Key No,) I 90; Cent. Dig. f 70; *Tayment,'' Deo. Dig. {Key No.)
f 10; Cent. Dig. I 46.
«« Ck>nst. U. 8. art 1, f 9.
214 THE POWERS OF CONGBESS. (Ch. 8
to the objects for which they are respectively made and for no others,"
and that "no department of the government shall expend, in any one
fiscal year, any sum in excess of appropriations made by congress for
that fiscal year, or involve the government in any contract for the future
payment of money in excess of such appropriations." ** The disposi-
tion of public money is in the discretion of congress, and its reasons
cannot be inquired into by the executive officers or the courts.** There
is, however, an implied limitation that the public money shall not be
expended for purely private purposes,** though a grant to private per-
sons may be justified in consideration of services rendered or other
contributions by them to the general prosperity or welfare, as in the
case of the grant of pensions to disabled soldiers and sailors, and in
the case of the bounty at one time offered by congress on sugar pro-
duced within the United States.*® Though congress is specially au-
thorized to "pay the debts of the United States," the word here used
is not to be restricted to such debts as would ordinarily be recoverable
in an action at law, but may include claims of citizens which rest upon
obligations of right and justice or upon considerations of a merely
moral or honorary nature.**
Regulation of Commerce — Origin of the Pozver-.
The reasons which induced the f ramers of the constitution to incor-
porate in it a provision giving to congress the right to regulate com-
merce with foreign nations and among the several states are so obvi-
ous, and so intimately connected with the main purposes for which a
central authority was established, as to require but little comment. It
should be remembered that the very first movement towards an amend-
ment of the original articles of confederation consisted in a proposal to
*« Rev. St U. S. §§ 3678, 3679. And see Smoot v. United States, 38 Ct. CI.
418. See ''United States,'' Dec. Dig. {Key No.) § 62 ; Cent. Dig. § 45.
*• Mumford v. United States, 31 Ct. CI. 210; Quick Bear v. Leupp, 30 App.
D. C. 151. iSfee ''Constitutional Law^ Dec. Dig. (Key No.) | 70; Cent. Dig.
iisi.
*7 See Minard v. Roberts, 202 U. S. 429. 26 Sup. Ct. 674, 50 L. Ed. 1090. See
"United States," Dec. Dig. (Key No.) § 85; Cent. Dig. § 66.
48 United States v. Realty Co., 163 U. S. 427. 16 Sup. Ct. 1120, 41 L. Ed.
215. See "United States," Dec. Dig. (Key No.) f 85; Cent. Dig. I 66.
4» Chleves v. United States, 42 Ct. CI. 21 ; Maine v. United States, 36 Ct
CI. 531 ; New Orleans v. Clark, 95 U. S. 654, 24 L- Ed. 521 ; Lorcoming County
V. Union County, 15 Pa. 166, 53 Am. Dec. 575. The common-law principle that
a naked promise without consideration creates no right of action does not
apply to grants of money by statute. Mumford v. United States, 31 Ct CI. 210.
See "United States," Dec, Dig. (filey No.) f{ 85, H; Cent. Dig. %% 66, IS.
§ 106) BNUMBBATED POWERS OF CONGBBSS. 215
confer upon the general government more enlarged powers over the
subject of commerce. When the convention assembled, it was univer-
sally agreed that this matter, if no other, must be committed to the
central authority. It is generally understood that Madison was the
author of this clause of the constitution, and was the one most strongly
and personally interested in its incorporation in the constitution.
The extreme importance of confiding this power to the councils of the
nation is made apparent by the reluctance which Rhode Island mani-
fested in regard to ratifying the constitution. This state enjoyed, at
that time, the advantage of possessing one of the finest harbors on the
whole Atlantic coast, situated at Newport. And a very large propor-
tion of all the commerce conducted by all the northern states with for-
eign countries sought this port. Heavy taxes and duties were laid upon
importations coming to the port of Newport, and the revenue derived
by the state from this source alone was sufficient to defray all its pub-
lic expenses. The prospect of being deprived of this very profitable
means of raising revenue, by acceding to a constitution which would
forever remove such regulations from the sphere of its competence,
and prevent all discriminations against other less favored states, op-
erated so strongly as to keep Rhode Island out of the Union for over
two years.
Same — In General.
The commerce which is subject to the regulation of congress is such
as is transacted with foreign countries or among the several states or
with the Indian tribes ; and as to such commerce the authority vested
in congress is plenary and unlimited,^® and includes the power to make
enactments which are essentially police regulations.** But this au-
thority does not extend to commerce of every description. On the con-
trary, each state retains full and complete control over all such com-
merce as is conducted wholly within its own borders, and with this
control congress has no right to interfere.'* "Nor can it be properly
•• United States v. Southern Ry. Co. (D. O.) 164 Fed. 347; State t. Peet, 80
Vt 449, 68 Atl. 661, 14 L. R. A. (N. S.) 6T7. But the courts have power to
determine whether any given statute is a legitimate and proper exercise of
the power as granted and limited by the constitution. United States v. Dela-
ware & H. Ox (O. G.) 164 Fed. 215. See *Votnmerce,** Dec Dig. {Key No.) 8f
B-10, 58; Cent. Dig. U S^, 8.
Bx Kell^ T. Great Northern R. Go. (G. G.) 162 Fed. 211. Compare United
States y. Delaware & H. Co. (G. G.) 164 Fed. 215. See **Oommerce,** Dec. Dig.
{Key No.) f| Z-IO; Cent. Dig. ff S-€, 8.
is Howard t. Illinois Gent R. Co., 207 U. S. 463, 28 Sup. Gt 141, 52 L. Bd.
. \
216 THB POWERS OF CON6RBSS. (Ch. 8
I
concluded that, because the products of domestic enterprise in agricul-
ture or manufactures op in the arts may ultimately become the subjects
of foreign commerce, the control of the means or the encouragements
by which enterprise is fostered and protected is legitimately within the
import of the phrase 'foreign commerce' or fairly implied in any in-
vestiture of the power tq regulate such commerce." •• The power of
congress in this regard is one which may be exercised partially, with-
out covering the entire field at once, or gradually, or by regulations
which may be either temporary or permanent. But speaking generally,
it has been said that "commerce in its largest sense must be deemed to
be one of the most important subjects of legislation, and an intention
to promote and facilitate it, and not to hamper or destroy it, is nat-
urally to be attributed to congress." •*
Same — The Leading Case,
The leading case on the subject of this power of congress is that
of Gibbons v. Ogden.** The opinion was written by Chief Justice
Marshall, and is universally conceded to be one of the greatest efforts
of his profound and luminous intellect. It contains an exhaustive dis-
quisition on the subject of commerce and its regulation by congress,
in all its bearings and aspects, and has furnished principles, or at least
arguments, for the guidance of the courts in a very large proportion
of the numerous and diverse cases which have since demanded solu-
tion at their hands. But the points actually decided in this case were
; only these : That commerce indudes navij^ation^ wKether the motive
] power be steam or sails, and that when congress has legislated, in
< pursuance of its constitutional power, on any particular subject or de-
ipartment of commerce, the states are precluded from taking any ac-
Jtion which would interfere with or tend to annul the acts of congress.
297 ; Veazie v. Moor, 14 How. 668, 14 L. Ed. 545 ; The Passaic Bridges, 3 Wall.
782, 16 L. Ed. 790 ; State T. Hammond Packing Co., 110 La. 180, 34 Sonth. 368»
98 Am. St Rep. 459. See "Commerce,'' Dec. Dig, {Key No,) fS B-H, 11; Cent,
Dig. fi 3-P, 11, SO. 92.
B8 Veazle t. Moor, 14 How. 568, 574, 14 L. Ed. 545. Bee ^'Commerce,*' Dec
Dig. {Key No.) f§ 2-10, 17; Cent. Dig. ff 5-ff, 8, 11.
B 4 Texas & P. R. Go. v. Interstate Commerce Commission, 162 U. S. 197,
16 Sup. Ct 666, 40 L. Ed. 940 ; Interstate Commerce Commission t. Alabama
Midland R. Co., 74 Fed. 715, 21 C. 0. A. 51. See "Commerce,** Deo. Dig. {Key
No.) U 2-10; Cent. Dig. Sfi S-6, S.
B6 9 Wlieat 1, 6 L. Ed. 23. See "Commerce;* Deo, Dig. iKey No.) ff 2-
10; Cent. Dig. ff 3-0, 3.
S 106) BNUMSBATBD POWEBS OF CONGRESS. 217
Same — What is Included.
The word "c<Mnmerce" is to be broadly construed. Its general mean-
ing is intercourse by way of trade and traffic between different peoples
or states. But as used in the constitution the term includes the trans-
portation of persons and property by land and sea as well as the pur-
chase, sale, and exchange of commodities.** It means commercial in-
tercourse in all its branches/' and extends not only to the substance
or the subjects of foreign and interstate ' commerce, but also to the
persons engaged in it, and to the means, agencies, and instrumentalities
by which it is carried on.** As to the subjects of commerce, it in-
cludes all natural and artificial products which are recognized as legiti-
mate articles of traffic,** including natural gas when piped from one
state into another.** But the business of furnishing instruction in the
arts, sciences, or trades, though partly carried on by means of text
books and other articles sent from one state to another but not intended
for sale, is not interstate commerce;*^ neither is the business of
insurance,** nor that of an interstate benevolent or beneficial associa-
te United States ▼. Sonthem Ry. Co. (D. O.) 104 Fed. 847; In re Charge
to Grand Jory (D. G.) 151 Fed. 834; Frank A. Menne Factory t. Harback,
85 Ark. 278, 107 8. W. 091; Hickory Marble, etc., Co. t. Southern Ry. Co.,
147 N. C 58, eO 8. E. 719; State t. Peet, 80 Vt 449, 68 Atl. 061, 14 U R. A.
(N. 8.) 677; Bamhard Bros. & Splndler t. Morrison (Tex. CIt. App.) 87 8. W.
876. See '^Commerce,^ Dec. Dig. {Key No.) U 1-14^ 58; Cent. Dig. U i-^,
SO, 92.
•T Snead t. Central of Georgia R. Co. (C. C) 151 Fed. 608; Swift & Co.
▼. United Statea, 196 U. 8. 875, 25 Snp. Ct 276, 49 L. Ed. 51& See ''Com-
merce,'* Deo. Dig. {Key No.) U 1-14; Cent. Dig. U 1-9, SO, 92,
»• Kelley v. Great Northern R. Co. (C. C.) 152 Fed. 211 ; RlTeralde Mills t.
Atlantic Coast Line R. Co. (C. C.) 168 Fed. 987. See ''Commerce,*' Dec. Dig.
{Key \o.) H 1-14; Cent. Dig, U 1-9, SO, 92.
■• Austin T. Tennessee, 179 U. S. 343, 21 Snp. Ct 132, 45 L. Ed. 224. Pow-
er to pelade lottery tldcets from transportation in Interstate commerce, see
ReUley v. United States, 106 Fed. 896, 46 C. a A. 25. See "Commerce,** Dec
Dig. {Key No.) f| 15 4t; Cent. Dig. Ifi 10-S5.
•0 Manufacturers' Gas & Oil Co. v. Indiana Natural Gas & Oil Co., 156 Ind.
645, 58 N. B. 706; State ex rel. Corwln v. Indiana & Ohio Oil, Gas & Min-
ing Co., 120 Ind. 575, 22 N. E. 778, 6 L. R. A. 579. Compare Jamieson t. In-
diana Natsral Gas & Oil Co., 128 Ind. 555, 28 N. E. 76, 12 L. R. A. 652. Bee
"Commerce,** Dec. Dig, {Key No,) i 15; Cent, Dig. fi S4.
•1 International Text-Book Co. t. Lynch, 81 Vt lol, 69 Atl. 541; Inter-
national Text-Book Co. v. Peterson, 133 Wis. 302, 113 N. W. 730. See "Comr
merce,** Dec. Dig, {Key No,) If 1, 46.
•» New York L. Ins. Co. v. Cravens, 178 U. S. 389, 20 Sup. Ct. 962, 44 L.
Ed. 1116 ; Hooper y. California, 155 U. & 648, 15 Sup. Ct 207, 39 L. Ed. 297 ;
218 THE POWBBS OF CONGBBSS. (Ch. 8
tion,*' nor the carrying of a pleasure party on a steamboat, though it
may touch the shores of different states,** nor the occupation of raft-
ing logs, though incidentally connected with commerce between the
states.** As to the persons engaged in conmierce, the authority of
congress extends to commerce conducted by corporations as well as
to that conducted by individuals,** including, of course, the great in-
terstate railways and navigation lines,*^ and to the employes of per-
sons and corporations engaged in foreign or interstate commerce,** so
that the regulation of the relation of master and servant, as to acts
done in interstate commerce, as to the responsibility of the one for in-
juries to the other, and as to limiting the hours of labor, is within the
rightful power of congress.** As to the means and instrumentalities
of commerce, the authority of congress includes the power to legislate
upon the subject of private contracts made with reference to foreign
or interstate commerce ; ''* and it is held that soliciting and procuring
trade in other states by means of traveling salesmen or agents, and also
the business of such agents, is an integral part of the commercial
Paul V. Virginia, 8 Wall. 168, 19 L. Ed. 357; State v. Phipps, 50 Kan. 609,
31 Pac. 1097, 18 L. R. A. 657, 34 Am. St. Rep. 152 ; Insurance Go. of North
America v. Com., 87 Pa. 173, 30 Am. Rep. 352; Com. v. Gregory, 121 Ky.
256, 89 S. W. 168, 28 Ky. Law Rep. 217; State ▼. Insurance Co. of North
America, 71 Neb. 320, 106 N. W. 767. See **Commerce," Deo. Dig, {Key No.)
i 45; Cent. Dig. I SS,
•s National Council, Junior Order American Mechanics v. State Council,
Junior Order United American Mechanics, 104 Ya. 197, 51 S. E. 166 (affirm-
ed 203 U. S. 151, 27 Sup. Ot 46, 51 L. Ed. 132). See **Co7nm€roe,** Dec. Dig.
{Key No.) f 46; Cent Dig. Sf 100, llS, 126.
•* State V. Seagraves, 111 Mo. App. 353, 85 S. W. 925. See "Commerce,*'
Dec. Dig. {Key No.) | 4^; Cent. Dig. f 26.
•B Tittabawassee Boom Co. v. Cunning, How. N. P. (Mich.) 82. See "Com-
merce** Dec. Dig. {Key No.) fi 4S; Cent. Dig. % 41.
•• Greek-American Sponge Co. v. Richardson Drug Co., 124 Wis. 469, 102
N. W. 888, 109 Am. St. Rep. 961 ; McNaughton Co. v. McGirl, 20 Mont. 124,
49 Pac. 651, 38 L. R. A. 367, 63 Am. St. Rep. 610. See "Commerce,** Dec. Dig.
{Key No.) f 9.
•T United States v. Craig (O. O.) 28 Fed. 795. See "Commerce** Dec. Dig.
{Key No.) B 17, 21, 21, S2-S6; Cent. Dig. §| 10-21, 25, 26, 37-99, 81, 82.
08 Snead t. Central of Georgia R. Co. (C. C.) 151 Fed. 608. 'See "Com-
merce,** Dec. Dig. {Key No.) 1 16.
•» State V. Chicago, M. & St P. R. Co., 136 Wis. 407, 117 N. W. 686, 19 li.
R. A. (N. S.).326; State v. Northern Pac Ry. Co. (Wash.) 102 Pac. 876. Bee
"Commerce,** Dec. Dig. {Key No.) i 16.
TO Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 20 Sup. Ct
96, 44 L. Ed. 136. See "Commerce,** Dec Dig. {Key No.) ^ 5.
i 105) ENUMERATED POWEBS OF CONGRESS. 219
transaction completed by the sale and delivery of the goods.*^* But
the act or business of commercial advertising is not necessarily a part
of commerce,^ ^ nor is the selling of passenger tickets.'^' It is further
to be observed that this grant of power to congress was not made with
reference solely to the condition and course of commerce as these ex-
isted at the time the constitution was formed. Its terms are broad
enough to permit the authority and its exercise to keep pace with the
progress and development not only of commercial intercourse but also
of the means employed in that intercourse. Powers and agencies are
now made available for the interchange of commodities which were
little dreamed of by the fathers of the Republic. But the advance of
science and the arts serves only to enlarge the field for the exercise
of legislative authority, in this regard, without affecting the limits of
the power itself.^*
Same — When Exclusive, When Concurrent
The question whether the power of congress to regulate foreign and
interstate commerce is exclusive, or whether the states have a concur-
rent authority, to any extent, over the same subject, is the most dif-
ficult which has arisen in the construction of this clause of the consti-
tution. The general result of the authorities may be stated as follows :
First, the states cannot lawfully adopt any measures tending directly
to regulate, obstruct, or interfere with such commerce as is confided
to the paramount control of congress, or which may be inconsistent
with the legislation of congress on the same subject.'* Second, if the
Ti United States ▼. American Tobacco Co. (G. G.) 164 Fed. 700; Kehrer
T. Stewart, 117 Ga. 969, 44 S. B. 854 (affirmed 197 U. S. 60, 25 Sup. Gt. 403,
49 L. Ed. 663); Loverln & Browne Co. v. Travis, 135 Wis. 322, 115 N. W.
829 ; Havens & Geddes Co. v. Diamond, 93 III. App. 557 ; Herman Bros. Go. y.
Xasiacos (Colo.) 103 Pac. 301. See **Commerc€,** Dec. Dig, {Key No.) { 40;
Vent. Dig. H 29, 30.
Ts Com. y. R. I. Sherman Mfg. Co., 189 Mass. 76, 75 N. B. 71. See *'Com-
merce,** Deo. Dig. {Key No.) I 55.
TsCom. V. Keary, 198 Pa. 500, 48 Atl. 472. See ^'Commerce," Dec Dig.
(Key No.) H 51, 58; Cent. Dig. I 78.
T* Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1, 9, 24 li. Ed. ,
70a See ^Commerce*' Dec. Dig. {Key No.) { 28; Cent. Dig. I 22.
T5 Brown t. Maryland, 12 Wheat. 419, 6 L. Ed. 678; Welton v. Missouri,
91 U. S. 275, 23 L. Ed. 347 ; Leisy y. Hardly, 135 U. S. 100, 10 Snp. Gt 681,
34 L. Ed. 128 ; Gibbons y. Ogden, 9 Wheat 1, 6 L. Ed. 23 ; Spratlin y. St
Loais Southwestern R. Co., 76 Ark. 82, 88 S. W. 836; State y. Chicago, M.
ft St P. B. Co., 136 Wis. 407, 117 N. W. 686, 19 L. R. A. (N. S.) 326 ; New
York Gent ft H. R. R. Co. y. Board of Chosen Freeholders of Hudson Goun-
*
220 THE POWERS OF CONORB88. (Ch. 8
particular subject to which the power is to be directed is national in
its character, or is such that it can properly be regiilated only by a
uniform system, in so much that varying regulati<xis by the different
states would cause inconvenience or detriment, it is not competent for
the states to legislate on the subject, and if congress does not act, its
silence is to be taken as an evidence of its will that the subject shall
be free from all regulation or restriction/^ Third, local and limited
matters, not .national in their character, which are most likely to be
wisely provided for by such diverse rules as the authorities of the dif-
ferent states may deem applicable to their own localities, may be regu-
lated by the state legislatures, in the absence of any act of congress on
the same subject.^^ Fourth, there are certain classes of state legisla-
tion which, although they may incidentally or remotely affect foreign
or interstate commerce, are not intended as regulations thereof, but
have their primary relation to the domestic concerns of the particular
state or of its citizens, and are properly in the nature of police regula-
tions. In the absence of any act of congress covering the same ground,
such laws are valid. And it is understood that, in so far as they relate
ts, 74 N. J. Law, 867, 65 Atl. 860 ; Gulf, O. & S. F. B. Co. v. Miami S. S. Co.,
86 Fed. 407, 80 C. 0. A. 142. See Adams Exp. Co. y. Charlottesville Woolen
Mills (Ya.) 68 S. E. 8 ; State t. Standard Oil Co., 218 Mo. 1, 116 S. W. 902.
Articles recognized by congress as subjects of interstate commerce cannot be
held to be otherwise. State v. Peet, 80 Vt 449, 68 AU. 661, 14 L. R. A. (N.
S.) 677. Bee **Oommerce^^ Dec. Dig, {Key Jfo.) f 8; Cent. Dig. | 5.
7« Bowman y. Chicago & N. W. R. Co., 125 U. S. 465, 8 Sup. Ct 689, 1062,
81 L. Ed. 700 ; County of Mobile y. Kimball, 102 U. S. 691, 26 L. Ed. 238 ; Rob-
bins Y. Shelby Oonnty Taxing Dist, 120 U. S. 489, 7 Sup. Ct 592, 80 L. Ed.
694 ; Gloncester Ferry Co. y. PennsylYania, 114 U. S. 196, 5 Sup. Ct 826, 29 L.
Ed. 158 ; Brown y. Houston, 114 U. S. 622, 5 Sup. Ot. 1091, 29 L. Ed. 257 ;
Leisy Y. Hardin, 135 U. S. 100, 10 Snp. Ct 681, 34 L. Ed. 128; Globe Elevator
Co. Y. Andrew (C. C.) 144 Fed. 871 ; State y. Peet, 80 Vt 449, 68 Atl. 661, 14 L.
R. A. (N. S.) 677 ; Southern Exp. Co. Y. Goldberg, 101 Va. 619, 44 S. E. 893, 62
L. R. A. 669; Richmond & A. R. Co. y. R. A. Patterson Tobacco Co., 92 Va.
670, 24 S. E. 201, 41 L. R. A. 511 ; Hardy y. Atchison, T. & S. F. R. Co., 32
Kan. 698, 5 Pac. 6. See ^'Commerce,'* Dec. Dig. (Key No.) U l-H; Cent. Dig,
H 1^, SO, 92.
TT United States y. Adair (D. C.) 152 Fed. 737; Oooley y. Board of Wardens
of Port of Philadelphia, 12 How. 299, 13 L. Ed. 996; Wilson v. Blackbird
Creek Marsh Co., 2 Pet. 245, 7 L. Ed. 412 ; Pittsburgh, C, C. & St L. R, Co.
Y. Hunt (Ind.) 86 N. E. 328 ; American Exp. Co. y. State, 167 Ind. 707, 79 N.
E. 353 ; Western Union Tel. CO. y. Call Pub. Co., 58 Neb. 192, 78 N. W. 519 ;
Morrls-Scarboro-Moffltt Co. y. Southern Exp. Co., 146 N. C. 167, 59 S. E. 667,
15 L. R. A. (N. S.) 983. Bee "Commerce,** Dec. Dig. {Key No.) H 1-H; Cent.
Dig. li 1-$, 30, 92.
i 105) BNUMBRATBO POWBB8 Or CONORBSB. 221
to or affect commerce, congress, by refraining from acting on the same
subject, sanctions and adopts them.^' But there are certain classes
of state legislation which so directly affect foreign or interstate com-
merce, or so plainly impose a burden or restriction upon it, that they
are void even though they may not come in conflict with any regulation
of congress on the same subject.^*
Same — Navigation.
The power of congress to regulate commerce includes the power to
regulate navigation, in so far as it is conducted between this country
and foreign nations or between the several states. And this power
extends both to salt and fresh waters, and is not limited by the ebb and
flow of the tide.** Even though the particular stream may lie wholly
within the limits of a single state,'^ yet navigaticMi on it is subject to
the rq^ulating power of the national government if it forms part of a
chain or system of waters leading to foreign countries or other states.
In fact, this power extends to all navigable waters of the United States.
And ''they constitute navigable waters of the United States when they
form, in their ordinary condition by themselves, or by uniting with
other waters, a continued highway over which commerce is or may be
carried on with other states or foreign countries." •* Even when a
Tt Sherlock v. Ailing, 93 U. S. 09, 23 L. Ed. 819 ; Kelley v. Great Northern
By. Co. (G. G.) 182 Fed. 211 ; In re Lebolt (G. G.) 77 Fed. 087 : Pittsburgh.
C., a & St L. R. Go. V. Hunt (Ind.) 86 N. B. 328; State t. Ghicago, M. &
St. P. B. Co., 186 Wis. 407, 117 N. W. 686, 19 L. R. A. (N. S.) 326. Congress,
having exclasive control over commerce between the states, may snbject such
commerce to the laws of the states. City of Indianapolis v. Bieler, 138 Ind.
30, 36 N. E. 857. See "Commerce,*' Dec, Dig. {Keu No.) f| 1-U; Cent. Dig.
H 1-9. SO, 92.
T» Hannibal & St J. R. Co. y. Husen, 95 U. S. 465, 24 Lb Ed. 527; Missouri,
K. & T. R. Go. v. Fookes (Tex. Civ. App.) 40 S. W. 858. See "Commerce*' Deo.
Did {Key No.) U 4, iS, 47; Cent. Dig. If 3, 5, 7, 9, 26.
•• Ryman Steamboat Line Co. v. Com., 125 Ky. 253, 101 S. W. 403, 30 Ky.
Law Rep. 1276, 10 L. R. A. (N. S.) 1187; Oorrigan Transit Go. y. Sanitary
Dlst of Chicago, 137 Fed. 851, 70 G. a A. 381. See "Commerce,** Deo. Dig.
(Key Vo.) f| 5, 18; Cent. Dig. H S, 12, IS.
•1 But see, as to the power of the states to regulate and control the navi-
gable waters within their own boundaries, St Anthony Falls Water Power
Go. V. Board of Water Com'rs, 168 U. S. 349, 18 Sup. Gt 157, 42 L. Ed. 497;
Morgan v. Oom., 98 Va. 812, 35 S. E. 44& Sec "Commerce,** Dec. Dig. {Key
yo.) fi 12, IS, 17, IS; Cent. Dig. 88 7, 9-lS.
ss The Daniel BaU, 10 Wall. 557, 563, 19 L. Ed. 999 ; Gibbons y. Ogden, 9
Wheat 1, 6 L. Ed. 23; Yeaeie y. Moor, 14 How. 568, 14 L. Ed. 545. Bee
"Commerce,** Dec Dig. iKey No.) Si iS, IS, 17, IS; Cent. Dig. H 7, 9-lS.
222 THE POWERS OF CONGRESS. (Ch. 8
vessel is plying between ports of the same state, yet if it is navigating*
the high seas, it is subject, as well as the business in which it is en-
gaged, to the regulating power of congress.®* But a state may im-
prove its own rivers and harbors, and take toll from those who use
the improvements, provided the navigation of the waters is kept free
and there is no interference with any system established by authority
of congress.** So also a state may authorize the erection of a dam
across a navigable river which is wholly within its limits, in the ab-
sence of any legislation of congress bearing on the case, but this is
subject to the power of congress to declare what does or does not con-
stitute an obstruction to navigation and to order the removal or altera-
tion of obstructions.** The authority to regulate ferries has never
been claimed by the general government, but has always been exercised
by the states. Consequently, an act of congress declaring a particular
river to be a common highway, free to all citizens x>i the United States,
does not interfere with the right of the state to create and regulate
ferries thereon and license the owners of boats engaged in such ferry
service.** But the states cannot impose license taxes upon tugs and
towboats engaged in navigating the high seas and the great waterways
of commerce.*^ Nor can they impose restrictions or conditions upon
such vessels, except such as may relate only to the policing of their
own harbors.**
88 Lord v. Goodall, N. & P. S. S. Co., 102 U. S. 541, 26 L. Ed. 224 ; Pacific
Ckjast S. S. Co. V. Board of Railroad Comers (C. 0.) 18 Fed. 10. See "Com-
merce:' Dec, Dig, {Key No.) SS i«, JS, 17, 18; Cent, Dig, IS 7, 9-lS,
8 4 Sands v. Manistee River Imp. Co., 123 U. S. 288, 8 Sup. Ct. 113, 31 L. Ed.
149 ; Benjamin v. ^f anistee River Imp. Co., 42 Mich. 628, 4 N. W. 483. gee
''Commerce^ Dec, Dig. {Key No,) ff 12, IS. 17, 18; Cent. Dig. |§ 7, 9-lS;
*Vonfititntional Law," Dec, Dig. (Key No.) S 120; Cent. Dig, § 282,
86 Pound V. Turck, 95 U. S. 459, 24 L. Ed. 525; Union Bridge Co. v. Unit-
ed States, 204 U. S. 364, 27 Sup. Ct. 367, 61 L. Ed. 623; Manlgault v. Springs,
199 U. S. 473, 26 Sup. Ct. 127, 50 L. Ed. 274 ; North Bloomfield Gravel Mln.
Co. V. United States, 88 Fed. 664, 32 C O. A. 84. See **Commerce,** Dec. Dig,
(Key No.) S 20; Cent, Dig. S i^.
86 Fanning v. Gregoire, 16 How. 524, 14 L. Ed. 1043; Chiapella v. Brown,
14 La. Ann. 189. But see New York Cent. & II. R. R. Co. v. Board of Chosen
Freeholders of Hudson County, 74 N. J. Law, 367, 65 Atl. 800. See "Com-
mercc," Dec. Dig. (Key No.) §f 5, 25; Cent. Dig, S 20,
8 7 Moran v. New Orleans, 112 U. S. 69, 5 Sup. Ct. 38, 28 L. Ed. 653; Har-
mon V. Chicago, 147 U. S. 396, 13 Sup. Ct. 306, 37 L. Ed. 216. See *'Cofnr
merce," Dec. Dig. {Key No.) § 6S; Cent. Dig. i 120,
88 Sinnot V. Davenport, 22 How. 227, 16 L. Ed. 243. See **Commerce," Dec.
Dig, {Key No.) i 57; Cent. Dig, | 75.
§ 105) BNUM£RATBD POWBBS OF CONOBBSS. 223
The power to regulate navigation, as a part of foreign and interstate
commerce, includes the regulation of its incidents. In this connection
congress has passed laws prescribing rules for navigation on the high
seas, laws establishing a system of light-houses and buoys, life-saving
stations, and other means of protecting and preserving those engaged
in navigation, laws for the regulation of ports and harbors and the im-
provement of rivers and other waterways, laws for the government of
American seamen,* • and laws relating to the liability of ship-owners
and others engaged in commerce, either declaring, altering, or supple-
menting the rules of the common law or the general law-merchant.
Same — Vessels.
Since ships are among the principal means or instruments by which
foreign and interstate commerce is carried on, it follows that they are
subject to the regulation of congress. Hence all federal laws relating
to the registry or nationality of American ships, or prescribing rules
for their transfer, or for the recording of such transfers, or determin-
ing what shall be sufficient evidence of title to them, or providing for
the recording of mortgages of ships, are to be sustained as enacted un-
der the commerce power.*^ And since the authority of congress in
this respect is paramount, state laws, in so far as they may be incon-
sistent with the acts passed by congress, must yield in authority.**
Thus, for example, an act of congress providing for the recording of
mortgages of ships will control the state statute of frauds.** While
•• State statutes making It a misdemeanor for any person to entice or aid
a seaman to desert his vessel while within the waters of the state are not
tmconstitntional, not being in conflict with any existing act of congress.
Handel v. Chaplin, 111 6a. 800, 36 S. B. 979 ; Ex parte Young, 36 Or. 247, 59
Pac. 707, 48 L. R. A. 153, 78 Am. St Rep. 772. Bee '^Commerce*' Deo. Dig.
{Key No,) H i7-25, 48; Cent. Dig. n 10^9.
•• White's Bank v. Smith, 7 Wall. 646, 19 L. Ed. 211 ; Blanchard v. The
Martha Washington, l Cliff. 463> Fed. Cas. No. 1,513; Foster y. Chamber-
lain, 41 Ala. 158 ; Shaw v. McCandless, 36 Miss. 296. See **Commerce," Dec.
Dig. (Key yo.) || 2t 57; Cent. Dig. §| 10-21, S7S9, 75.
•1 But state statutes giving liens on ships for necessary repairs or snp-
pUes furnished on the credit of the vessel, enforceable by proceedings in rem
in a court of admiralty, as arising under maritime contracts^ do not unlaw-
fully Interfere with the authority of congress. Iroquois Tranqp. Go. y. De
Laney Forge & Iron Co., 205 U. S. 354, 27 Sup. Ct 509, 51 L. Ed. 83a The
Bnergia (D. G.) 124 Fed. 842; The Robert Dollar (D. C) 115 Fed. 218. See
^•Cotnmerce,'* Deo. Dig. (Key No,) | 80,
•* Mitchell y. Steehnan, 8 Cal. 363. See ^'Commerce^** Dec. Dig. (Key No.) |
57; Cent. Dig. | 75.
224 THS P0WBB8 OF CONGRESS. (Ch. 8
the states cannot tax ships as instruments of commerce, yet they may
tax the owners of ships for their interest in the same as personal prop-
ertyV "
Same — Regulation of Ports and Harbors,
In the class of subjects generally left to the legislation of the in-
dividual states is included the regulation of ports and harbors, in re-
spect to the establishment of harbor lines, the maintenance and regu-
lation of wharves, state inspection laws, local pilotage rules, and all
such measures as belong to the police regulation of the public ports
and waterways of a state.*^ The harbors and other navigable waters
of a state are indeed subject to the regulating power of congress, in
so far as they belong to or are used for that kind of commerce which
may be denominated foreign or interstate, just as much as are the high
seas. But until congress chooses to enter upon the field of legislation,
in respect to the subjects here mentioned, state laws on those subjects
are valid and must be enforced, and when congress acts, those laws
are not repealed but suspended in their operation.** But a state stat-
ute entitling port wardens to receive a certain sum or fee for every ves-
sel coming into port, whether they are called on to perform any service
or not, is a regulation of commerce and unconstitutional.**
Same — Embargd.
The limits of the power of congress to regulate foreign commerce
were very seriously considered in connection with the embargo laid
upon such commerce in 1807, at the special recommendation of Jef-
ferson, then President. Against the constitutionality of this measure
it was urged that an embargo suspending foreign commerce for an in-
definite or unlimited period cannot properly be described as a "regula-
tion" of commerce, since it results in a temporary destruction of it.
The power to regulate, it was said, does not include the power to an-
•s Wheeling, P. ft G. Transp. Co. y. Wheeling, 99 U. S. 273, 25 I«. Bd. 412;
City of St Louis v. Wiggins Ferry Co., 11 Wall. 423, 20 L. Ed. 192 ; Howell
y. State, 3 om (Md.) 14. See **Commerce,*' Deo. Diff. {Key No.) | 72; Cent.
Dig. I m.
•« See Tlttabawassee Boom Co. v. Cunning, How. N. P. (Mich.) 82. See
**Commerce," Dec, Dig, (Key No.) | 2i; Cent, Dig. f 19,
•6 Henderson y. Spofford, 69 N. T. 131 ; The James Qray y. The John
Fraser, 21 How. 184, 16 L. Ed. 106; Pacific Mail S. S. Co. y. Jollffe, 2 WalL
450, 17 L. Ed. 806. See '^Oommeroe,'' Deo. Dig. (Key No.) || 10, 12; Cent.
Dig. li 8, 9.
•0 Steam^lp Co. y. Portwardens, 6 Wall. 31; Hadcley y. Geraghty, 84 N.
J. Law, 832. See ''Commerce;' Deo. Dig. (Key No.) % 76; Cent, Dig. | S7»
§ 105) ENUMBRATBD POWERS OF C0NQBE8S. 225
nihilate. The supreme court has never passed upon this question. But
it was decided in the inferior courts that the embargo act was a valid
exercise of the power of congress, because it was not aimed at the de-
struction of commerce, but was intended as a means of defending, pre-
serving, and protecting our foreign commerce. There can be no doubt,
however, that this act went to the very extreme limit of the lawful ex-
ercise of this great power of congress.**
Same — Pilotage.
The states retain the power, until congress shall act, to establish
rules for the qualification and licensing of pilots and as to their serv-
ices upon vessels approaching or leaving their ports and the fees to
be charged therefor.** But as the subject concerns foreign commerce,
it is within the domain intrusted to the control of congress, and that
body has power either to adopt a uniform system on the subject of
pilots, or to adopt and sanction the systems in force in the several
maritime states. And if it should make the entire subject national in
its character, and prescribe uniform rules and regulations, all provi-
sions of the state statutes which might be inconsistent therewith would
have to give way.** But a state pilot law which discriminates in favor
of "coasters within the state" or vessels of that and the two adjoining
states, conflicts with the federal statute and is void.^**
Satne — Quarantine and Other Sanitary Regulations,
It is within the lawful power of each state to enact sanitary laws,
quarantine laws, and reasonable inspection laws, and take such action
as will prevent the introduction into the state of persons, animals, or
plants suffering from contagious or infectious diseases. Statutes of
this character are not regarded as regulations of commerce but as
police laws. But they may not substantially burden or prohibit for-
eign or interstate commerce, beyond what is necessary for self -protec-
tion, and must yield in all points where they are inconsistent with
general quarantine or sanitary regulations prescribed by congress.^*^
•T See 2 Story, Const. %\ 1289-1292.
•• Thompson y. Darden, 198 U. S. 810, 25 Sup. Ct 660, 49 L. Ed. 1064 ; Ol-
sen T. Smith, 195 U. S. 882, 25 Sup. Gt. 62, 49 L. Ed. 224; St. George v.
Hardie, 147 N. C. 88, 60 S. E. 920. Bee ''Commerce,'* Dec. Dig. (Key No.) |
25; Cent. Dig, 1 18.
•• The Panama, Deady, 27, Fed. Gas. No. 10,702 ; Glseo v. Roberts, 6 Bosw.
(N. Y.) 494. see 'Votnmerce," Dec. Dig. (Key No.) § 23; Cent. Dig. i 18.
100 Spraigue v. Thompson, 118 U. S. 90, G Sup. Ot 988, 30 L. Ed. 115. See
**Commercer Deo. Dig. (Key No.) || 2S, 51; Cent. Dig. §| 18, IJk.
!•! Reid T. Colorado, 187 U. S. 137, 23 Sup. Ct 92, 47 li E)d. 106 ; Smith
BL.CoNfln.Ii. (3d. E3d.) — 15
226 THE POWERS OF CONQBESS^ (Ch. 8
The legislative authority of congress in this respect has been mani-
fested in laws sanctioning and enforcing the quarantine laws of the
various maritime states, with reference to foreign commerce, and au-
thorizing United States officers to aid and co-operate in their enforce-
ment,^®* and also in statutes establishing a national quarantine system
and United States quarantine stations at various ports, under the gen-
eral supervision of the secretary of the treasury and the immediate
control of the officers of the marine hospital service,*®* and in the
provision of the immigration laws which excludes from the country
"persons suffering from a loathsome or a dangerous contagious dis-
ease." *•* As to interstate sanitary regulations, there is an act of
congress, applicable in cases where it shall be made to appear to the
satisfaction of the President that cholera, yellow fever, small pox, or
plague exists in any state or territory, authorizing the secretary of
the treasury to make and enforce regulations to prevent the spread
of the disease ; *®' also an act establishing a bureau of animal indus-
try in the department of agriculture, for the study of communicable
diseases among animals and the means of preventing or extirpating
such diseases, and also prohibiting the exportation of diseased live
stock or their transportation from one state into another; *•• and the
T. St Louis & 8. W. R. Co., 181 U. S. 248, 21 Sup. Ct 603, 46 K Ed. 847;
Rasmussen v. Idaho, 181 U. S. 198, 21 Sup. Gt. 594, 45 L. Ed. 820; Klmmlsh
T. Ball, 12d U. S. 217, 9 Sup. Ct. 277, 32 L. Ed. 695 ; Morgan's Louisiana &
T. R. & S. S. Co. y. Board of Health, 118 U. S. 456, 6 Sup. Ct 1114, 80 L. Ed.
237 ; Hannibal & St J. R. Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527 ; Wilson
y. Black Bird Creek Marsh Co., 2 Pet 245, 7 L. Ed. 412; Austin y. State,
101 Tenn. 563, 48 S. W. 305, 50 L. R. A. 478, 70 Am. St Rep. 703 (affirmed
179 U. S. 343, 21 Sup. Ct 132, 45 L. Ed. 224) ; Compagnie Francaise de Navi-
gation ft Vapeur ▼. State Board of Health, 51 La. Ann. 645, 25 South. 691, 66
L. R. A. 795, 72 Am. St Rep. 456 (affirmed 186 U. S. 380, 22 Sup. Ct 811, 46
L, Ed. 1209) ; Ex parte Hawley (S. D.) 115 N. W. 93, 15 L. R. A. (N. S.) 138 ;
Patrick v. State (Wyo.) 98 Pac. 588. See "Commerce," Deo. Dig. {Key yo.)
I 52; Cent. Dig. H ^8-55. ^
102 Rev. St U. S. f 4792 (U. S. Comp. St 1901, p. 3306); Act Cong. Apr.
29, 1878, 20 Stat 37 (U. S. Comp. St 1901, p. 3307) ; Act Cong. Feb. 15, 1893.
27 Stat 449 (U. S. Comp. St 1901, p. 3312); Compagnie Francaise de Navi-
gation k Vapeur v. State Board of Health* 186 U. S. 380, 22 S. Ct 811, 46 L.
Ed. 1209. Bee ''Commerce,*' Dec. Dig. {Key Ifo.) I 52; Cent. Dig. || 4S-5S.
lot Act Cong. April 29, 1878, 20 Stat 87 (U. S. Comp. St 1901, p. 8307) ; Act
Cong. March 5, 1888, 25 Stat 43 (U. S. Comp. St 1901, p. 3810) ; Act Cong.
Aug. 1, 1888, 26 Stat 355 (U. S. Comp. St 1901, p. 3310).
104 Act Cong. March 3, 1891, 26 SUt 1084 (U. S. Comp. St 1901, p. 1294).
108 Act Cong. March 27, 1890 (U. 8. Comp. St 1901, p. 3311).
!•• Act Cong. May 29, 1884» 28 SUt 81 (U. & Comp. St 1901, p. 299) ; Act
g 105) ENUMERATED POWERS OF CONGRESS. 227
"pure food and drug law" of 1906, which forbids the manufacture
(in the territories and the District of Columbia) and the sale or trans-
portation in interstate and foreign commerce of adulterated, misbrand-
ed, poisonous, or deleterious foods, drugs, medicines, and liquors.**'^
Same — Imports.
In pursuance of its power to regulate foreign commerce, congress
has passed many laws with regard to the importation into this country
of articles from abroad.*** Most of these acts have been so plainly
within the scope of the power in question that their constitutionality
has never been called in controversy before the courts. A detailed ex-
amination of these statutes is beyond our present purpose, but refer-
ence in general terms may be made to the laws establishing a tariff
of customs duties, those designating the ports of entry, and those
creating and regulating the bonded warehouse system. After goods
imported from abroad have reached the custom house, they remain in
the possession of the United States until delivered to the consignee,
and the United States has a lien on them for the duties. During that
period they cannot be attached or levied on, or otherwise taken out
of the custody of the federal officers by any state process.*** The
states cannot lay any tax upon goods imported from abroad so long
as they remain in the hands of the original importer, or, having left
his hands, so long as they remain in the original packages of importa-
tion. When the importer has parted with them, or when the original
cases have been broken up, then the goods become taxable as a part
of the general mass of property in the state.***
Gong. March 3, 1891, 26 Stat 1089 (U. S. Comp. St 1901, p. 3189) ; Act Cong.
Feb. 2, 1906, 82 Stat 791 (U. S. Comp. St Supp. 1909, p. 1183). On these laws
see Illinois Cent R. Co. v. McKendree, 203 U. S. 514, 27 Sup. Ct 153, 51 L. Ed.
298 ; Asbell v. Kansas, 209 U. S. 251, 28 Sap. Ct 485, 62 L. Ed. 778 ; United
States y. Slater (D. C.) 123 Fed. 115 ; United States r. Boyer (D. C) 85 Fed.
425. Bee ''Commerce,'' Deo. Dig. {Key No.) | 55 ; Cent. Dig. f i 2S, 26, 89.
loT Act Cong. Jnne 30, 1906, 34 Stat 768 (U. S. Comp. St Supp. 1909, p.
1187).
!•• As to the yalidity of the act of congress prohibiting the importation of
teas inferior in quality to the government standard, see Bnttfield y. Stranahan,
192 U. a 470, 24 Sup. Ct 849, 48 L. Ed. 525 ; Bnttfield y. Bidwell, 96 Fed.
828. 37 C C A. 506. Bee ''Commerce,"* Dec Dig. (Key No.) ff 4, 31, 77; Cent.
Dig. H 3, 5, 24, 61-10.
io» Harris y. Dennie, 3 Pet 292, 7 L. Ed. 683. Bee '^Attackment,'' Deo. Dig.
ijiey No.) I IBO; Cent. Dig. | SSS; ^'Omtome Dutiee,'* Dee. Dig. {Keg No.) |
S7; Cent. Dig. | 227.
»!• Brown t. Maryland, 12 Wheat 419, 6 L. Ed. 678; Co<A t. Pennsylyania,
228 THB POWERS OF CONGRESS. (Ch. 8
Same — Immigration.
The term "commerce/* as used in the constitution, is not limited
to an exchange of commodities, but includes as well intercourse with
foreign nations. And the term "intercourse" includes the transpor-
tation of passengers.^** Consequently it is within the power of con-
gress, under this grant, to regulate immigration. It may totally pro-
hibit the coming into the United States of any class, degree, or na-
tionality of immigrants, or it may prescribe conditions or restrictions
upon such immigration, or impose a tax on the owners or masters
of vessels bringing foreigners into the country. Examples of the
exercise of this power by congress may be seen in the statute which
forbids the importation of alien laborers under cbntract, and in that
which excludes the Chinese. The only limitation upon the power
oi congress in this respect is that its regulations or prohibitions must
not contravene the provisions of treaties between this country and
foreign nations.*** This rule also involves a limitation upon the
power of the states. The several states may not lay any restriction
upon immigration.*** It is not within the power of a state to impose
taxes upon such immigration, or upon the masters or owners of ves-
sels bringing foreigners into their ports for the privilege of so doing,
or upon the aliens themselves. Such a tax would be an unlawful
regulation of foreign commerce.*** But a state law which requires
97 D. S. 56«, 24 L. Ed. 1016; People v. WllmePding, 62 Hun, 391. 17 N. Y.
Supp. 102 ; Waring v. Mobile, 8 Wall. 110, 19 I/. Ed. 342 ; SchoUenberger v.
Pennsylvania, 171 U. S. 1, 18 Sup. Ct 757, 43 L. Ed. 49; St. Louis v. Wortman,
213 Mo. 131, 112 S. W. 520. See ''Commerce,'' Dec, Dig. {Key No.) f 4i; Cent.
Dig. II SO, SI.
111 People y. Raymond, 34 Cal. 492; Passenger Cases, 7 How. 283, 12 L. Ed.
702. See "Commerce,** Dec, Dig. (Key No.) §| i, 4; Cent. Dig. S§ 2, 5, 5.
112 Edye v. Robertson (Head Money Cases), 112 U. S. 580, 5 Sup. Ct. 247, 28
L. Ed. 798 ; U. S. v. Craig (C. C.) 28 Fed. 795. See "AUcm,** Dec. Dig. (Key
No.) § S9; Cent. Dig. | 100.
lis But the business of hiring laborers and soliciting emigrants is not "com-
merce," and a state law requiring an emigrant agent to obtain a license Is
not invalid. State v. Napier, 63 S. C. 60, 41 S. B. 13. See "Aliens,** Deo. Dig.
(Key No.) § S9; Cent. Dig. f 100; "Commerce,** Deo. Dig. (Key No.) S| W, -M,
IS; Cent. Dig. § 129.
114 Henderson v. Mayor of City of New York, 92 U. S. 259, 23 L. Ed. 543;
Chy Lung v. Freeman, 92 U. S. 275, 23 L. Ed. 550 ; People V. Downer, 7 Cal.
169 ; New York v. Compagnle G6n6rale Transatl antique, 107 U. S. 59, 2 Sup.
Ct. 87, 27 L. Ed. 383 ; People of State of California v. Pacific Mail S. S. Co.
(C. C.) 16 Fed. 344 ; Passenger Cases, 7 How. 283, 12 L. Ed. 702. See "Comr
meroe;' Dec. Dig. (Key No.) %% 50, IS; Cent. Dig. i§ 4S, 129.
S 105) BNUMBBATBD P0WBB8 OF C0NQBB88. 229
a rqM>rt to be made of the passengers brought from abroad into (xie
of its portSy and prescribes a fine as a penalty for failure to comply
with its terms, is not regarded as a regulation of commerce, but merely
as a police regulation, and is not invalid.^ ^'
Same — Railroads.
Inasmuch as the control over commerce includes the means or agen-
cies by which it is carried on, it follows that the business of railroad
companies, in so far as it concerns traffic between points which do
not lie within the same state, is subject to the regulation of congress
and exempt from that of the states.^^* But the fact that a railroad
company is engaged in interstate commerce does not exempt it from
control by the state in respect to all business done therein not directly
connected with traffic between the states.**'
Congress may provide that all railroads companies may carry pas-
sengers, mails, and property over their roads and bridges, on their way
from one state to another, and receive compensation therefor, and
may connect with other roads so as to form continuous lines for the
transportation of the same to their places of destination.**' And con-
gress likewise has authority to construct or authorize the construction
of railroads across the states and territories of the United States, and
the franchises thus conferred cannot, without its permission, be taxed
by the states,***
In the exercise of tJiis power congress has further enacted laws
(which have been sustained as valid) requiring railroad cars employed
in interstate traffic to be equipped with certain safety appliances, not-
iis New Toiic City y. Miln, 11 Pet. 102. 0 L. Ed. 64& See ^Vommeroe,** Deo.
Dig. {Key No,) S 50; Cent. Dig. S 48.
11* Interstate Oommerce GommlBslon v. Detroit, Q. H. & M. R. Co., 167 U.
8. 688, 17 Sup. Ct 986. 42 L. Bd. 306 ; Illinois Cent R. Co. v. Illinois, 163 U.
8. 142, 16 Sup. Ct. 1096, 41 L. Ed. 107 ; United States y. Oeddes, 131 Fed. 452»
65 C..C. A. 320; Interstate Stockyards Co. y. Indianapolis U. R. Co. (C. C.)
99 Fed. 472. Bee ""Commerce*' Dec. Dig. {Key Vo.) %% 5, rt, S2^4f 47; Cent,
Dig. H S, 5, 25, 26, 81, 82.
iiT McGulre y. Chicago, B. & Q. R. Co., 181 Iowa, 340, 108 N. W. 902; State
T. Jacksonyille Terminal Co., 41 Fla. 877, 27 South. 225 ; United States y. Chi-
cago, K. & S. R. Co. (a C.) 81 Fed. 783. See "'Commerce,'' Dec. Dig. (Key No.)
H 5, 27, 92-^4, 47; Cent. Dig. H S, 5, 25, 26, 81, 82.
lit Dabnqne & S. C. R. Co. y. Richmond, 19 Wall. 584, 22 L. Ed. 178. See
^'Commerce,'' Dec Dig. (Key No.) || S, 5; Cent. Dig. | S.
11* California y. Central P. R. Co., 127 U. S. 1, 8 Snp. Ct 1073, 82 L. Ed.
150. See ""Commerce," Dec. Dig. (Key No.) | 27; Cent. Dig. | £5.
230 THB POWERS OF C0NQRB88. (Ch. 8
ably the automatic coupler;*** making a common carrier receiving
property for interstate transportation liable for all loss or damage
to such property whether it occurred on its own line or on a connecting
line;*** prohibiting and punishing "rebating" or the procuring of
freight transportation at less than the carrier's published schedule of
rates; *** regulating the hours of labor for employes of common car-
riers engaged in interstate business;**' and the employers' liability
act of 1906. making common carriers liable to their employes for in-
juries or damage sustained in consequence of the negligence of any of
the officers, agents, or employes of the carrier, which in effect abolishes
the "fellow servant" rule and radically modifies the common-law doc-
trine of contributory negligence. This last statute, after much dis-
cussion and difference of opinion among the lower federal courts,***
was sustained by the United States supreme court in so far as it re-
lated to the relations between employers and employes engaged in
interstate commerce, but held void because it assumed to regulate pure-
ly intrastate commerce as well.*** It is held that there is no such con-
nection between interstate commerce and membership in a labor organ-
ization as to justify congress in enacting a law to protect members of
120 United States v. Southern R. Co. (D. C.) 104 Fed. 347; United States v.
Atlantic Coast Line R. Co. (D. C.) 153 Fed. 918 ; United States v. Great North-
ern R. Co. (D. C.) 145 Fed. 438 ; Mobile, J. & K. C. R. Co. v. Bromberg, 141
Ala. 258, 37 South. 395 ; Kansas City, M. & B. R. Co. y. Flippo, 138 Ala. 487,
35 South. 457 ; United States v. Erie R. Co. (D. O.) 166 Fed. 352. See "Oom-
merce,'* Dec. Dig. (Key No.) | 27; Cent. Dig. § 25.
"1 Smeltzer v. St. Louis & S. F. R. Co. (C. C.) 158 Fed. 649. See **Comr
meroe,'* Dec. Dig. (Key No.) { 5; ''Constitutional Law,** Dec. Dig. {Key No.)
i89.
i2« New York Cent & H. R. R. Co. v. United States, 212 U. S. 481, 29 Sup.
Ct. 304, 53 L. Ed. 613; Armour Packing Co. v. United States, 209 U. S. 56,
28 Sup. Ct. 428, 52 L. Ed. 681 ; United States y. Standard Oil Co. of Indiana
(D. C.) 155 Fed. 303. Bee "Commerce," Dec. Dig. {Key No.) §S 5^, 77.
"8 state y. Chicago, M. & St. P. R. Co., 136 Wis. 407, 117 N. W. 686,'l9 L.
R. A. (N. S.) 326. See '"Commerce," Dec. Dig. (Key No.) §S 10, 12, 16, 59.
i«* Howard y. Illinois Cent. R. Co. (C. C.) 148 Fed. 997; Snead y. Central
of Georgia R. Co. (C. C.) 151 Fed. 608; Spain y. St. Louis & S. F. R. Co. (C. C.)
151 Fed. 522 ; Kelley y. Great Northern R. Co. (C. C.) 152 Fed. 211 ; Piummer
y. Northern Pac. R. Co. (C. C.) 152 Fed. 206 ; Lancer y. Anchor Line (D. C.)
155 Fed. 433; United States y. Southern R. Co. (D. C.) 164 Fed. 347. See
''Commerce," Dec. Dig. {Key No.) $i 1, 58.
126 Howard y. Illinois Cent B. Co., 207 U. S. 463, 28 Sup. Ct 141, 52 L. Ed.
297 ; Watson y. St Louis, I. M. & S. Ry. Co. (C. C.) 169 Fed. 942. See "Com-
merce,** Dec Dig. {Key No,) U 5^ 58.
§ lOS) ENUMBBATBO POWERS OF CONGRESS. 231
such bodies from discharge from their employment or invidious dis-
crimination by reason thereof.^**
The states have no power to impose unreasonable burdens or re-
strictions on interstate carriers or their business. This rule applies
to a state law requiring all such carriers to furnish equal privileges
and accommodations to all persons using their cars without discrimi-
nation on account of race or color ;^*^ to a law requiring interstate
passenger trains to stop at county seats, at least when adequate train
service has been provided for local traffic; *** and to state regulation
of the tolls or charges to be made for the carriage of goods beyond the
bounds of the state.* *• But an act subjecting carriers to penalties for
failure to adjust and pay claims for damages to property, or to refund
overcharges, does not impose an unlawful burden on interstate com-
merce."*
Same — Transportation of Goods,
To bring a transportation of freight within the control of a state
as a part of its domestic commerce, the subject transported must be
for the entire distance carried under the exclusive jurisdiction of the
state.*** When goods are shipped for carriage from a point in one state
to a point in another state, they become subjects of interstate com-
merce,*'* and it is immaterial whether they are carried upon through
bills of lading or rebilled by successive carriers.**' Further, the con-
is* Adair T. United States, 206 U. S. 161, 28 Sap. Ct. 277, 52 L. Ed. 436 ;
Order of R. R. Telegraphers y. LouisyiUe & N. R. Co. (C. G.) 148 Fed. 437.
See 'Commerce,*' Dec Dig. {Key yo.) ff 57, 58,
i«T Hall V. De Cuir, 95 U. S. 485, 24 L. Bd. 547. Bee "Commerce;* Deo, Dig.
{Key No,) H 5, «7, «8->54. 47, 58; Cent. Dig, i§ S, 5, B5, 26, 77-^6.
iss Cleveland, etc, R. Ck>. v. IllinoiB, 177 U. S. 514, 20 Sup. Ct. 722, 44 L.
Ed. 86a See **Commerce,** Dec. Dig. (Key No,) | 58; Cent. Dig. | 79.
is» Jennings v. Big Sandy ft 0. R. Co., 61 W. Va. 664, 57 S. E. 272. See
**Oommeroe,** Deo. Dig. {Key No.) i§ 5^, 58; Cent. Dig. §| 26, 82.
ISO Raleigh Iron Works v. Southern R. Co., 148 N. C. 469, 62 S. E. 595. See
**Commeroe,^ Deo, Dig. {Key No.) { 58; Cent. Dig. if 81, 8i.
iti St Louis ft S. F. R. Co. v. State, 87 Arte. 562, 113 S. W. 203. See '"Com-
merce,*' Dec. Dig. {Key No.) |S 5, S2S4. 58; Cent. Dig. §} 5, 5, 26, 77-86.
itt United States y. Colorado ft N. W. R. Co., 157 Fed. 342, 85 C. C. A. 48;
Beny Coal ft Coke Co. v. Chicago, P. ft St. L. R. Co., 116 Mo. App. 214, 92
S. W. 714. See ""Commerce," Dec. Dig. {Key No.) H 5, S2-^4, 58; Cent. Dig. IS
S, 5, 26, 77-86.
its United States v. Colorado ft N. W. R. Co., 157 Fed. 821, 85 0. a A. 27,
15 L. R. A. (N. S.) 167 ; Qulf, C. ft S. F. R. Co. y. Fort Grain Co. (Tex. Cly.
Appu) 78 S. W. 845. But the intention of the consignee as to the future disposi-
232 THB POWERS OF C0NOBBS8. (Ch. 8
tinuous transportation of freight between two points within the same
state, but by a line which lies partly without the limits of the state,
is interstate commerce.*** And the authority of congress over com-
merce of this description extends to the necessary switching of cars
and delivery at terminal points.* ■• It is competent for that body, in
legislating upon interstate commerce, to regulate freight rates, so far
as to require that they shall be uniform as to all shippers,*** to for-
bid a railway carrier from transporting articles or commodities in
interstate commerce when the article or commodity was manufactured,
mined, or produced by the carrier or under its authority and remain-
ing its property at the time of transportation,**' and to exclude lot-
tery tickets from interstate transportation by express companies.***
Conversely, it is not within the lawful power of the states to interfere
with interstate transportation by the imposition of any burdens or re-
strictions.***
tion of his property by shipping it over another line under a new bill of lad-
ing into another state cannot change an intrastate shipment to an interstate
shipment. Augusta Brokerage Ck>. y. Central of Georgia R. Co., 6 Oa. App.
187, 62 S. E. ©96. Bee ''Commerce,'' Dec Dig, {Key No.) §§ 5, S2-S4, S6, 58;
Cent. Dig, fl 5, 5, 26, 77-85, 99.
!•* Hanley v. Kansas City Southern R. Co., 187 U. S. 617, 23 Sup. Ct 214*
47 L. Ed. 333; United States v. Erie R. Co. (D. C.) 166 Fed. 352; St. Louis
& S. F. R. Co. y. State, 87 Ark. 562, 113 S. W. 203; Patterson y. Missouri
Pae. R. Co., 77 Kan. 236, 94 Pac. 138, 15 L. R. A. (N. S.) 733 ; Mires y St
Louis ft S. F. R. Co., 134 Mo. App. 379, 114 S. W. 1052; Dayls y. Southern
R. Co., 147 N. C. 68, 60 S. E. 722 ; Shelby lee ft Fuel Co. r. Southern R. Co.,
147 N. a 61, 60 S. B. 723. See '^Commerce," Dec Dig. {Key No.) {| 5, 58-5-J.
56, ^8; Cent. Dig. §| 5, 5, 26, 77-86, 99.
185 Fielder y. Missouri, K. & T. R. Co., 92 Tex. 176, 46 S. W. 633. See "Com*
mcrce** Dec Dig. {Key No.) % SS.
186 Interstate Commerce Commission y. Reichmann (C. C.) 145 Fed. 235.
See ''Commerce,** Dec Dig. {Key No.) | S4; Cent. Dig. |i 26, 82.
i«T United States y. Delaware & H. Co., 213 U. S. 366, 29 Sup. Ct. 527, 53 L.
Ed. 836 (May 3, 1909) construing the *'Ilepburn Act*' of June 29, 1906, 34 Stat
584 (U. S. Comp. St. Supp. 1900, p. 1149). See "Commerce,** Dec Dig. {Key No.)
§i S2-^4; Cent. Dig. §§ 26, 81, 82.
188 Champion y. Ames, 188 U. S. 321, 23 Sup. Ct. 321, 47 L. Ed. 492. See
"Commerce,** Dec Dig. {Key No.) i SS.
i8» State y. Atchison, T. ft S. F. Ry. Co., 176 Mo. 687, 75 S. W. 776, 63 L. R.
A. 761. A state statute undertaking to regulate freight transportation by rail-
road companies doing business in the state is unconstitutional In so far as its
proyislons apply to interstate shipments. St Louis, I. M. ft S. R. Co. y. Hamp-
ton (C. C.) 162 Fed. 693. So of one which penalizes the failure of a railway
company to furnish cars to a shipper within a limited time after demand, when
I 105) BNUMBKATBD P0WEB8 OF C0NGBS8S. 233
Same — Bridges.
Under this grant of power, congress has control over the navigable
waters of the United States, that is, such waters as, in themselves or
with their connections, form a continuous highway over which foreign
or interstate commerce is or may be carried on. And in connection
therewith, it is within the constitutional authority of congress to take
measures for keeping such highways free and open for such commerce
and preventing obstructions. It may therefore prevent the erection
of bridges over such streams, by the states or by private persons or
corporations under their authority, or it may declare that a bridge so
erected is not an obstruction to commerce but a lawful bridge, and it
may also authorize or provide for the construction of bridges over
streams between two states, and provide that such bridges shall be
free for the crossing of all trains of railroads terminating on the
sides of the river respectively.*** The states may authorize the
construction of railroad or other bridges across navigable streams,
provided they do not interfere with any existing regulations of con-
gress applicable to such streams, and do not constitute a material im-
pediment to the course of commerce on those rivers. The latter re-
quirement presents a question of fact which must be decided in each
case with reference to its peculiar circumstances. But in general, if
applied to Interstate shipments. Honston ft T. C. R. Go. v. Mayes, 201 U. S.
321, 26 Sop. Ct. 491, 00 L. Ed. 772. And nnder the same conditions, a state
law Imposing a penalty on an express company for refusal to deliver express
matter Is Inyalld. State v. Adams Express Go. (Ind.) 85 N. E. 337, 066, 19 L.
R. A. (N. S.) 98. But any Interference with interstate commerce by the en-
forcement of state laws prohibiting a greater charge for shorter than for long-
er hanls Is too remote and Indirect to be regarded as unconstitutional. Louis-
Tille St N. R. Go. v. Kentucky, 183 U. S. 503, 22 Sup. Gt. 95, 46 L. Ed. 296. Nor
is there constitutional ground of objection to a statute making bills of lading
conclusive evidence of the receipt of the goods (Taasoo ft M. V. R. Go. v. O. W.
Bent & Go. [Miss.] 47 South. 805) ; or one providing a penalty for refusing to
accept freight for shipment (Reid A Beam v. Southern Ry. Go., 149 N. G. 423,
63 8. E. 112) ; or one regulating the venue of actions for damages against car-
riers (Texarkana & Ft S. R. Go. v. Shlvel & Stewart (Tex. Glv. App.] 114 a
W. 196). See "Cammerce,'' Dec. Dig. {Key No.) {§ S, S2S4; Cent. Dig. i| S,
5, 26, SU 82.
140 See Dubuque ft S. G. R. Go. v. Richmond, 19 Wall. 584, 22 L. Ed. 178;
Pennsylvania v. Wheeling ft B. Bridge Go., 13 How. 518, 14 L. Ed. 249 ; Miller
V. Mayor, etc., of New York, 100 U. S. 385, 3 Sup. Gt. 228, 27 L. Ed. 971 ; South
Carolina v. Georgia, 93 U. S. 4, 28 L. Ed. 782 ; Escanaba ft L. M. Transp. Go.
T. Ghicago, 107 U. S. 678, 2 Sup. Gt. 180, 27 L. Ed. 44Z See ^'CotMneroe,*' Deo.
Dig. {fetf No.) | 26; Cent. Dig. f 16.
234 THB POWERS OF CONGRESS. (Ch. 8
the obstruction to navigation caused by the bridge is greater than the
benefit to the general commerce of the country resulting from it, it
may be abated as a nuisance, otherwise it will stand.*** But it must
be remembered that, for the purpose of regulating conmierce, con-
gress retains paramount and plenary control over the navigable waters
of the United States. Congress is not precluded, by anything that
may have been done under the authority of a state, from assuming
entire control, abating any erections that may have been made, and pre-
venting any others from being made except in conformity with such
regulations as it may prescribe. Or on the other hand, it may legalize
a state bridge and declare it to be a lawful structure.***
Same — Telegraphs.
With reference to the electric telegraph, it has been said: "It
cannot for a moment be doubted that this powerful agency of com-
merce and intercommunication comes within the controlling power of
congress, certainly as against hostile state legislation." **• No state
can impose an impediment to the freedom of such communication by
attempting to regelate the delivery in other states of messages re-
ceived within its own borders.*** In regard to state taxation of tele-
graph companies, the rule settled by the United States supreme court,
with reference to such companies as have accepted the provisions of
the act of congress relative to their use of the public domain,*** is
that they "cannot be taxed by the authorities of a state for any mes-
i«x Cardwell v. American River Bridge Ck>., 113 U. S. 205, 5 Sup. Gt. 423, 28
L. Ed. 959 ; Oilman y. Plilladelphia, 3 WaU. 713, 18 L. Ed. 96 ; Hamilton y.
Vicksburg, S. & P. R. Co., 119 U. S. 280, 7 Sup. Gt. 206, 30 L. Ed. 393 ; J0II7
V. Terre Haute Drawbridge Co., 6 McLean, 237, Fed. Gas. No. 7,441 ; Silliman
V, Hudson River Bridge Co.. 4 Blatchf. 74, Fed. Gas. No. 12.851 ; Lake Siiore
& Mi S. R. Go. V. Obio, 165 U. 8. 365, 17 Sup. Gt. 357, 41 L. Ed. 747. 8ee
''Commerce,** Dec. Dig. (Key No.) %% 20, 26; Cent, Dig. S§ 14. 15.
i4« Willamette Iron Bridge Co. v. Hatcb, 125 U. S. 1, 8 Sup. Gt 811, 31 L.
Ed. 629 ; Pennsylvania v. Wheeling & B. Bridge Co., 13 How. 618, 14 L. Ed.
249 ; Id., 18 How. 421, 16 U Ed. 435. See **Commei'oe," Dec. Dig. {Key No.f R
20, 26; Cent. Dig. {| Ut 15.
148 Pensacola Tel. Go. v. Western Union Tel. Co., 96 U. S. 1, 24 L. Ed. 708;
Western Union Tel. Go. v. Pendleton, 95 Ind. 12, 48 Am. Rep. 692 ; Postal Tel.
Cable Go. v. State, 110 Md. 608, 73 Atl. 679. Bee ^'Commerce,** Dec Dig. (Key
No.) li 28, 59; Cent. Dig. U Z2, 87, 100.
14* Western Union Tel. Go. t. Pendleton, 122 U. S. 347, 7 Sup. Gt 1126, 30
L. Ed. 1187. See *Vommerce,** Dec. Dig. (Key No.) S| 28, 69; Cent. Dig. IS
22, 87, 100.
x«s R«y. St U. S. IS 5263-6268 (U. & Comp. St 1901, pp. 3577-3581).
8 105) BNUMBRATED POWERS OF CONOEE6S. 236
sages, or receipts arising from messages, from points within the state
to points without, or from points without the state to points within,
but that such taxes may be levied upon all messages carried and de-
livered exclusively within the state. The foundation of this principle
is that messages of the former class are elements of commerce be-
tween the states, and not subject to legislative control of the states,
while the latter class are elements of internal commerce, solely within
the limits and jurisdiction of the state, and therefore subject to its
taxing power." **• Hence a single tax assessed under the laws of a
state upon receipts of a telegraph company, which were partly derived
from interstate commerce and partly from commerce within the state,
and which were capable of separation, but were returned and assessed
in gross and without separation or apportionment, is invalid in propor*
tion to the extent that such receipts were derived from interstate com-
merce, but is otherwise valid.**' But a state may lawfully provide
that every telegraph company owning a line in the state shall be taxed
on such proportion of the whole value of its capital stock as the
length of the line within the state bears to the whole length of the line
everywhere, after deducting the value of any property owned by it
and subject to local taxation in the cities and towns of the state.
Such a tax is not an unlawful interference with interstate commerce.***
It has also been ruled that the transmission of messages by the tele-
phone may be interstate commerce.***
31 «• Western Union Tel. Go. ▼. Alabama State Board of Assessment, 132 U. S.
472, 10 Sup. Ct 161, 83 L. Ed. 409. But where the points of transmission and
destination of a telegraph sent over the lines of a single company are within
the same state, the fact that a part of the transmission is made over lines of
the company in another state does not make it Interstate business. Western
Union Tel. Co. ▼. Hughes, 104 Va. 240, 51 S. E. 225, affirmed, 203 U. S. 505, 27
Sup. Ct 162, 51 L. Ed. 294. See *'Commerce;' Dec, Dig. {Key No,) }§ 28, 59,
7S; Cent. Dig. || t2, 87, 100, 1S2.
i*T Ratterman v. Western Union Tel. Co., 127 U. S. 411, 8 Sup. Ct. 1127, *32
L. Ed. 229 ; Western Union Tel. Co. y. Texas, 105 U. S. 460, 26 L. Ed. 1067.
See ^'Commerce," Dec. Dig. (Key No,) |i 28, 59, 75; Cent. Dig. i§ 23, 87, 100, 132.
i*i Attorney General v. Western Union Tel. Co., 141 U. S. 40, 11 Sup. Ct. 880.
35 L. Ed. 628; Western Union Tel. Co. y. Attorney General, 125 U. S. 530, 8
Sup. Ct 961, 31 L. Ed. 790 ; Western Union Tel. Oo. y. Taggart, 163 U. S. 1,
16 Sup. Ct 1054, 41 li. Ed. 49. See '^Commerce;* Deo. Dig. (Key No.) %% 28, 59,
IS; Cent. Dig. If 22, 87. 100, 1S2.
!«• In re Pennsylyanla Tel. Co., 48 N. J. Eq. 91, 20 Atl. 846, 27 Am. St Rep.
462 ; Muskogee Nat Tel. Co. y. Hail, 118 Fed. 382, 55 C. a A. 20a See **Com-
merce;' Dec Dig. (Key No.) |S 28, 59, 75; Cent. Dig. f| 22, 87, 192.
236 THB POWBB8 OF CONQRE88. (Ch. 8
Same — Trade Marks,
Statutes have been passed by congress purporting to secure to mer-
chants and manufacturers exclusive rights in the use of registered
trade marks. But the validity of such laws, at least in so far as
they are not confined to commerce with foreign nations or among the
several states, but virtually apply to all commerce at all points, cannot
be sustained under the commerce clause of the constitution. Whether
or not a tr^de mark has such a relation to commerce as to bring it
within congressional control when used or applied to the classes of
commerce which fall within that control, remains still an unsettled
general question. "•
Same — Penal Legislation.
The power of congress to regulate commerce gives it also the right
and power to provide by law for the punishment of offenses com-
mitted against commerce or of such a character as to defeat or ob-
struct it. For example, it has power to define and punish larceny
from a ship, even when the vessel is not at sea.^*^ In the exercise
of the powers confided to congress over interstate commerce and the
postal system, it is competent for the national authorities to remove
all obstructions upon highways, natural or artificial, to the passage
of interstate commerce or the carrying of the mail.***
Same — Unlawful Restraints, Monopolies, and Trusts.
The act of congress commonly called the "Sherman Anti-Trust
Law," Herlarpg jjleg^l all_contracts. combinations, a"^ p^ncpir^ri^c in
; r^gf ^*"*^ ^f trafjp '^^ r^^mmt^n;^ pmr^ng^ thc scvcral states or with foreign
i nations, and in the territories and the District of Columbia, and de-
l nounces severe penalties, both civil and criminal, against any person
"•*who shall make or engage in such contracts or conspiracies, or who
shall monopolize such trade or commerce or attempt or conspire with
others to monopolize it.*** It is settled that this statute is within the
180 Trade-Mark Cases, 100 U. S. 82, 25 L. Ed. 650. And see Warner v. Searle
& Hereth Co., 191 U. S. 195, 24 Sup. Ct. 79, 48 L. Ed. 14.j ; Perlberg v. Smith,
70 N. J. Eq. 688, 62 Atl. 442. Bee ''Commerce,'* Dec, Dig, {Key No,) f 42; Cent,
Dig. §f 28, S6.
i»i U. S. T. Coombs, 12 Pet. 72, 9 L. Ed. 1004. See ''Commerce/' Deo, Dig,
(Key No,) | 82; Cent. Dig, i 47,
IBS In re Debs, 158 U. S. 564, 15 Sup. Ct 900, 39 L. Ed. 1092. Bee "Injuno-
tion,** Dec. Dig. {Key No.) § 89; Cent. Dig. S 163.
16S Act Cong. July 2, 1890, 26 Stat 209 (U. S. Comp. St 1901, p. 8200).
8 105) BNUMBBATBD POWERS OF CONGRBSS. 237
lawful power of congress.^** It has full sway in the territories and
the District of Columbia; ^'' but elsewhere it is restricted to foreign
and interstate commerce, such manufacturing and dealing as are car-
ried on wholly within the limits of a single state being beyond the reach
of the statute, and being left to the regulation of the several states
and to the operation of the rules of the common law.*"*
The purpose of the statute is to permit interstate commerce to flow
in its natural channels unobstructed by any combinations, contracts,
or monopolies, and its prohibitions apply to any contract or combina-
tion which stifles, obstructs, or directly and substantially restricts such
commerce or free competition therein.*"' It is not necessary that the
contract or combination should by its terms refer to interstate com-
merce, its actual purpose and effect being the test;*'* nor is it ma-
terial that the parties to the contract or combination are looking only
to their own trade and profits and have no direct purpose with refer-
ence to interstate commerce.*** But, on the other hand, it is not nec-
essary that the effect should be a total suppression of trade or a com-
plete monopoly, the unlawful effect being produced when the com-
bination deprives the public of the advantages flowing frcxn free
is« Northern Securities Ck>. ▼. United States, IdS U. S. 197, 24 Sup. Ct. 436,
48 L. Ed. 879 ; United States ▼. Joint Traffic Ass'n, 171 U. S. 506, 19 Sup. Ct
25. 43 L. Ed. 259. See "Commerce,** Dec Dig, (Key No,) { S.
i»» Tribolet ▼. United States (Ariz.) 95 Pac. 85, 16 Ii. R. A. (N. S.) 223. Bee
**Monopoliear Dec. Dig. (Key No.) {§ 12, SI.
i((« Addyston Pipe & Steel Co. t. United States, 175 U. S. 211, 20 Sup. Ct
96, 44 L. Ed. 136 ; Robinson v. Suburban Brick Co., 127 Fed. 804, 62 C. C. A.
4Si : GIbbs ▼. McNeeley (C. C.) 107 Fed. 210; The Charles B. Wlswall v. Scott,
86 Fed. 671, 80 C. C. A. 339; Pennsylvania Sugar Refining Co. v. American
Sugar Refining Co., 166 Fed. 254, 92 C. C. A. 818. But contracts which oper-
ate as a restraint upon the soliciting of orders for and the sale of goods in
one state, to be delivered from another are in restraint of Interstate com-
merce. United States v. Addyston Pipe & Steel Co., 85 Fed. 271, 29 C. C. A.
141. 46 L. R. A. 122. And see Glbbs v. McNeeley, 118 Fed. 120, 55 a a A. 70.
60 L. R. A. 152. 8cc '^Monopolies,** Dec. Dig. {Key No.) \% 11-20; **Oommeroe,**
Dec Dig. (Key No.) i S.
iBT Loewe v. I^wlor, 208 U. S. 274. 28 Sup. Ct 301, 52 L. Ed. 488; Whitwell
T. Continental Tobacco Co., 125 Fed. 454, 60 C. C. A. 290, 64 L. R, A. 689 ;
United States v. Northern Securities Co. (C. C.) 120 Fed. 721 ; United States v.
Hopkins (C. C.) 82 Fed. 529. See **Comm>eroe** Deo. Dig. {Key No.) % S.
isBGibbs Y. McNeeley, 118 Fed. 120, 55 C. C. A. 70, 60 L. R. A. 152. See
''MonopolieB,** Dec. Dig. {Key No.) H 11-20; Cent. Dig. f{ IO-14.
'»♦ Ellis V. Inroan, Poulsen & Co., 131 Fed. 182, 65 C. C. A. 488. See "Monop-
oUet;* Dec. Dig. {Key No.) H 11-20; Cent. Dig. §) 10-14.
238 THB POWERS OF CONGRESS. (Ch. 8
competition.*** And it is to be observed that the statute does not
simply apply the common-law rule to interstate and foreign commerce,
but prohibits "every" contract or combination in restraint of such
commerce; hence it is entirely immaterial whether the particular re-
straint complained of is fair and reasonable or the reverse and whether
it would be legal or illegal at common law."* The interference with
commerce, however, must be direct and substantial, not merely inci-
dental or indirect,*** and a contract or combination is not illegal if
its purpose and chief effect are to foster, develop, and expand legiti-
mate business, though accidentally it may tend to restrict or discourage
competition.***
It appears that the statute does not apply to the ordinary form of
contract where one sells his business to another and agrees not to
enter into competition with him for a limited time.*** Nor does it
ieo United States t. MacAndrews & Forbes Oo. (C. C.) 149 Fed. 823 ; Monarch
Tobacco Works v. American Tobacco Co. (0. C.) 165 Fed. 774. The word "mo-
nopoly" is not used in the statute In a strict legal sense, as including the power
legally to exclude all others from the field monopolized, since such a monopoly
cannot be created by a contract or combination, but only by the sovereign
power ; but it is used as meaning a substantially complete control of a par-
ticular business or article of trade. Burrows v. Interborough Metropolitan
Co. (C. C.) 156 Fed. 889. See ''Monopolies;' Dec. Dig. {Key No.) U 11-tO;
Vent, Dig. H 10-H.
lei United States v. Trans-Missouri Freight Ass'n, 166 U. S. 290, 17 Sup. Ct
640, 41 li. Bd. 1007; Wheeler-Stensel Co. t. National Window-Glass Jobbers*
Ass'n, 152 Fed. 864, 81 C C. A. 658, 10 L. R. A. (N. S.) 972 ; Continental Wall
Paper Co. v. Lewis Voight & Sons Co., 148 Fed. 939, 78 C. C. A. 667, 19 L. R.
A^ (N. S.) 148 ; Chesapeake & O. Fuel Co. t. United States,^ 116 Fed. 610, 68
C. a A. 266; United States t. Coal Dealers' Ass'n (C. C.) 85 Fed. 252; Thom-
sen T. Union Castle Mail S. S. Co., 166 Fed. 251, 92 C. O. A. 815. Bee ''Mo-
nopolies;' Deo. Dig, (Key Vo,) H 11-20; Cent. Dig. H 10-H-
i«2 Cincinnati, P. B. S. & P. Packet Co. ▼. Bay, 200 U. S. 179, 26 Sup. Ct
208, 60 L. Ed. 428 ; Hopkins t. United States, 171 U. S. 578, 19 Sup. Ct 40,
48 L. Ed. 290; Pennsylvania Sugar Refining Co. t. American Sugar Reflfilhg
Co. (C. O.) 160 Fed. 144 ; Bigelow t. Calumet & Hecla Min. Co., 167 Fed. 721,
94 a a A. 18. Bee "Monopolies;* Dec, Dig. {Key No.) U 11-20; Cent. Dig.
ii 10-lh
i«s United States y. Joint Traffic Ass'n, 171 U. S. 605, 19 Sup. Ct 26, 43 L.
Ed. 259; PhUlips ▼. Tola Portland Cement Co., 125 Fed. 698, 61 C. C. A. 19;
Whitwell ▼. Continental Tobacco Co., 125 Fed. 454, 60 a C. A. 290, 64 L. B. A.
689 ; Lanyon t. Garden City Sand Co., 228 111. 616, 79 N. B. 818, 9 L. R. A.
(N. S.) 446. See Chesapeake & O. Fuel Co. t. United States, 116 Fed. 610, 68
C. C. A. 256. Bee "Monopolies,*' Dec Dig, (Key No.) U 11-20; Cent. Dig. H
lO-U.
i«« Dayls T. A. Booth 4 Oa, 131 Fed. 81, 66 C. a A. 269; A. Booth 4 Oo.
§ 105) ENUMERATED POWERS OF CONGRESS. 239
apply to one who achieves a monopoly of any article or line of busi-
ness in foreign or interstate commerce, without combination or con-
spiracy with any others, but simply by the exercise of superior busi-
ness acumen and foresight, by over-bidding competitors, or other legi-
timate means.**' But certainly it does apply where two or more
persons or corporations, being natural competitors in business, enter
into an agreement not to bid against each other in the purchase of
ccHnmodities or the supplying of their own products to others; *••
where one corporation acquires control of a similar and competing
corporation, with the purpose and intention of eliminating competition
.and obtaining a monopoly of the business; *•' where the stockholders
in two competing interstate railway companies combine to form a hold-
ing corporation which is to acquire, in exchange for its own capital
stock, a controlling interest in the capital stock of each of the con-
stituent companies, the object being to eliminate competition and es-
tablish a monopoly; *•• where competing railroads, engaged in inter-
state business, combine to form a joint traffic association, for the pur-
pose of fixing rates and fares and dividing the traffic among them; ***
▼. Davis (C. C.) 127 Fed 875. But see Monongahela Riyer Consol. Coal & Fuel
a>. T. Jutte, 210 Pa. 288, 09 Atl. 1088, 105 Am. St Rep. 812. See '^Manapoliesr
Dec, Dig. (Key No.) S 12; Cent. Dig. I 10; '^Contracts,*' Dec. Dig. (Keg No.)
I 111; Cent. Dig. H 55^-569.
i«» American Banana Oo. ▼. United Fmlt Go. (C. C) 160 Fed. 184 [Id. 166
Fed. 261, 92 a G. A. 825, affirmed 213 U. S. 847, 29 Sup. Ct 511, 63 L. Ed.
826] ; Field t. Barber Asphalt Pav. Co., 194 U. S. 6ia 24 Sup. Ct. 784, 48 L.
Ed. 1142; Whltwen y. Oontluental Tobacco Co., 125 Fed. 454, 60 C. a A. 290,
64 L. R. A. 689 ; Board of Trade of City of Chicago y. Christie Grain & Stock
Co., 198 U. S. 236, 25 Sup. Ct. 637, 49 L. Ed. 1081 ; United States y. Patterson
(C. C) 55 Fed. 606; United States y. American Nayal Stores Co. (C. C.) 172
Fed. 455. See *'Monopoli€$,** Dec. Dig. (Key No.) H 11-20; Cent. Dig. H 10-lh
i«« Addyston Pipe ft Steel Co. y. United States, 175 U. S. 211, 20 Sup. Ct
96, 44 L. Ed. 136 ; United States y. Swift & Co. (C. C.) 122 Fed. 529. See ''Mo-
nopolietr Dec Dig. (Key No.) if 11-20, SI; Cent. Dig. U 10-14; 'Vommercer
Dec. Dig. (Key No.) ^ 3.
i«Y Blgelow y. Calumet & Hecla Mln. Co. (C C.) 155 Fed. 869. See "Monop-
oHeM,*" Dec Dig. (Key No.) i 20.
i«« Northern Securities Co. y. United States, 193 U. S. 197, 24 Sup. Ct 486,
48 li. Ed. 679; Minnesota y. Northern Securities Co. (a C) 123 Fed. 692; Unit-
ed States y. Northern Securities Co. (C. C.) 120 Fed. 721. See State y. Superior
Court of Skamania County, 61 Wash. 846, 98 Pac. 739. See "Commerce,** Dec
Dig. (Key No.) i S; *'Monapolie$,** Dec Dig. (Key No.) IS 11-20.
!•• United States y. Joint Traffic Ass'n, 171 U. S. 505, 19 Sup. Ct 25, 48 L.
Bd. 269; United SUtes y. Trans-Mlssourl Freight Ass*n, 166 U. S. 290^ 17 Sup.
240 THB POWERS OF CONGRESS. (Ch. 8
where any number of manufacturers, producers, or carriers enter into
a pool for the division of business and authorize a central organization
or an executive committee to fix prices or rates, to which all must con-
form; *^* and where persons controlling most of the output of a g^ven
article (such as copyrighted books) combine to form an association
which fixes an arbitrary price for the product, at which price alone
the members of the ccMnbination are permitted to sell to retailers, and
which seeks to compel retailers to sell at prices fixed by the combina-
tion, by refusing to sell to those who cut prices and by blacklisting
them.^'^ In effect; the attempt to establish a monopoly by injurious
attacks upon the business of independent competitors, who refuse to
enter into the pool or trust or submit to its dictation, is within the de-
nunciation of the statute when it affects foreign or interstate commerce
and is the work of a combination or the result of a conspiracy. This
applies to the action of an association of manufacturers in denouncing
and blacklisting a retail dealer,*'* and equally to a combination by
members of a labor organization to force a manufacturer to submit
to their terms by boycotting his factory and the sale of its prod-
ucts.*'* This is also true of a combination between manufacturers
and wholesalers on the one hand and retailers on the other, which
fixes a scale of prices, and excludes retailers who are not members
from the privilege of purchasing in the market which they control.*'*
Ct. 540, 41 L. Ed. 1007. See **Monopoliea;* Dec Dig, {Key No.) U 11-20; Cent.
Dig. §§ 10-H.
iTo Chesapeake & O. Fuel Co. v. United States, 115 Fed. 610, 63 G. a A.
256 ; Delaware, L. & W. R. Co. v. Frank (C. C.) 110 Fed. 680 ; United States
V. Chesapeake & O. Fuel Co. (C. C.) 105 Fed. 03 ; Cravens v. Carter-Crume Co.,
92 Fed. 479, 34 C. C. A. 479. See ** Monopolies,'* Dec, Dig. (Key No.) ^^ 11-20;
Cent. Dig. §{ 10-U.
iTi Mines V. Scribner (C. C.) 147 Fed. 927; Bobbs-Merrlll Co. ▼. Straus (C.
C) 139 Fed. 155. See *' Monopolies," Dec. Dig. {Key No.) § 17; Cent. Dig. S IS.
IT 2 Gibbs V. McXeeley (C. C.) 102 Fed. 594. See *' Monopolies," Dec. Dig.
{Key No.) U 11-20; Cent. Dig. §| IO-I4.
ITS Loewe ▼. Lawlor. 208 U. S. 274, 28 Sup. Ct. 301, 52 L. Ed. 488. And see
United States t. Workingnien*s Amalgamated Council (C. C.) 54 Fed. 994, 26
L. R. A. 158 ; In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092. See
'* Monopolies," Dec. Dig. {Key No.) §§ 12, U; *' Conspiracy," Dec. Dig. {Key No.)
% 8; Cent. Dig. §{ 7-11.
1T4 w. W. Montague & Co. v. Lowry, 193 U. S. 38, 24 Sup. Ct 307. 48 L. Ed.
608 ; Ellis V. Inman, Poulsen & Co., 131 Fed. 182, 65 C. C. A. 488 ; Loder v,
Jayne (C. C.) 142 Fed. 1010 ; United States v. Coal Dealers* Ass'n (C. C.) 85
Fed. 252.
Those who are curious to know the extent to which the law department of
§ 105) BNUMBBATBD POWBRS OF CONGRESS. 241
But the monopoly created by a patent for an invention is lawful ;
and reasonable and legal conditions imposed by the patentee upon those
to whom he grants licenses to make and sell the patented article, re-
stricting the terms upon which it may be used and the price to be
demanded for it, do not constitute such a restraint upon commerce as
the federal soyenunent has been active In enforcing the Sherman law wUl find
here a fairly comprehenaive list of the prosecutionB and injnnctiye proceed-
InjH hitherto brought, it being understood that in each case there was alleged
to be a monopoly or '*tmst" in restraint of interstate commerce, and most,
though not all of the actions having been successful. Combination of inter-
state railroads under the device of a holding corporation: Northern Securities
Co. V. United States^ 103 U. S. 197, 24 Sup. Ct 436, 48 L. Ed. 679. Joint traf-
fic association of railroads: United States v. Joint Traffic Ass'n, 171 U. S.
906, 19 Sup. Ct 25, 48 Lb Ed. 299. Trans-Missouri freight association: United
SUtes V. Trans-Missouri Freight A8S*n, 166 U. S. 290, 17 Sup. Ct 540, 41 L.
Ed. 1007. Trunk line association of railroads: Delaware, L. & W. R. Co. v.
Frank (a O.) 110 Fed. 689. Combination to fix freight rates to South Afri-
can ports: Thomsen v. Union Castle Mail S. S. Co., 166 Fed. 251, 92 C.
C A. 315. Standard Oil Company: United States v. Standard Oil Co.
of New Jersey (C. C) 152 Fed. 290. Sugar refining trust: Pennsylvania
Sugar Refining Co. v. American Sugar Refining Co. (C. C.) 160 Fed. 144.
Tropical fruit trust: American Banana Co. v. United Fruit Co. (O. C.)
160 Fed. 184. Asphalt trust: Field v. Barber Asphalt Paving Co., 194 U. S.
618, 24 Sup. Ct 78|I, 48 L. Ed. 1142. Tobacco trust: Whitwell v. Continental
Tobacco Co., IJ^E^ed. 454, 60 C. C. A. 290, 64 L. R. A. 689; United States v.
American T^lSacco Ca (C. C.) 164 Fed. 700. Fuel trust: Chesapeake ft O. Fuel
Co. V. United States, 115 Fed. 610, 58 C. C. A. 256. Consolidation of competing
mining companies: Bigelow v. Calumet ft Hecla Min. Co. (C. C.) 155 Fed. 869.
American Publ]sh»*s' Association: Bobbs-Merrill Co. v. Straus (C. C.) 139 Fed.
155 : Mines v. Scrlbner (C. C.) 147 Fed. 927. Labor union combining to boycott
a manufacturer: Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct 301, 52 L. Ed. 488.
Lumber monopoly: EUlls v. Inman, Poulsen ft Co., 131 Fed. 182, 65 C. C. A.
488. Drug and medicine trust: Loder v. Jayne (C. C.) 142 Fed. 1010. Monop-
olistic combination of coal dealers: United States v. Coal Dealers* Ass'n (C.
C.) 85 Fed. 252. Licorice paste trust: United States v. MacAndrews & Forbes
Co. (C C.) 149 Fed. 823 ; United States Tobacco Co. v. American Tobacco Co.
(C. C.) 163 Fed. 701. Wall paper trust: Continental Wall Paper Co. v. I^wis
Voight ft Sons Co., 148 Fed. 939, 78 C. C. A. 667, 19 L. R: A. (N. S.) 143, af-
firmed 212 U. 8. 227, 29 Sup. Ct 280, 53 U Ed. 486. Iron pipe trust:
Addyston Pipe ft Steel Co. v. United States, 175 U. S. 211, 20 Sup. Ct 96,
44 L. Ed. 136. Monopoly of live stock and fresh meat: Swift ft Co. v.
United SUtes, 196 U. S. 375, 25 Sup. Ct 276, 49 L. Ed. 518 ; United States v.
Hopkins (C. C.) 82 Fed. 529. Wooden ware trust: Cravens v. Carter-Crume
Co., 92 Fed. 479, 34 C. C. A. 479. Tile, mantel, and grate trust: W. W. Mon-
tague ft Co. V. Lowry, 193 U. S. 38, 24 Sup. Ct 307, 48 L. Ed. 60& Bee **M0'
nopoliee,** Dec Dig. (Kev No.) H 11-20; Cent. Dig, H lO-H.
B1..C0NST.L.9D.ED.) — 16
242 THE POWERS OF CONGRESS. (Ch. 8
comes within the purview of the statute;*^" and the fact that the
patentee may be a member of a combination which is unlawful under
the statute does not give any third person the right to infringe his
patent or prevent him from suing to enjoin the infringement.*^* By
analogy, the owner of a proprietary medicine, made under a secret
formula but not patented, may sell or withhold from sale as he pleases,
fixing the prices and naming his terms and refusing to sell to those
who will not comply, and so far as this is confined to his own goods
and pursued by independent and individual action, it is within his
rights; but when two or more combine and agree that neither will
sell to any one who cuts the prices of the others, this concerted policy
is a direct interference with and restraint upon the freedom of trade,
and comes within the federal statute when it affects interstate com-
merce.*^'
Contracts which were in unreasonable restraint of trade at common
law were not unlawful in the sense of being criminal or as giving rise
to an action for damages to one prejudiced, but were simply void and
not enforceable. But the anti-trust act of congress renders such con-
tracts, as applied to interstate commerce, unlawful in an affirmative
or positive sense, and punishable as a misdemeanor, and also creates
a right of civil action for damages in favor of persons injured thereby,
and a remedy by injunction in favor of the public against the ex-
ecution of such contracts and the maintenance of such trade re-
straints.*'* As to criminal prosecutions, it is held that all who aid in
1T5 B. Bement & Sons v. National Harrow Co., 186 U. S. 70, 22 Sup. Ct
747, 46 L. Ed. 1058; Rubber Tire Wheel Co. v. Milwaukee Rubber Works
Co., 154 Fed. 358, 83 C. O. A. 836 ; Indiana Mfg. Co. v. J. I. Case Threshing
Mach. Co., 154 Fed. 365, 83 C. C. A. 343 ; John D. Park & Sons Oo. v. Hart-
man, 153 Fed. 24, 82 O. (X A. 158, 12 L. R. A. (N. S.) 135. See "Monopolies^*
Dec. Dig. (Key No.) SS 11-20; Cent. Dig. §§ lO-U; "Patents,** Dec. Dig. {Kev
So.) §S i, 216; Cent. Dig. ff i, 14, 4^. 54. S29.
ire General Electric Co. v. W'Ise (C. C.) 119 Fed. 922. See ** Monopolies,"
Dec. Dig. (Key No.) S 21; Cent. Dig. S 15.
177 Jayne v. Loder, 149 Fed. 21, 78 C. C. A. 653, 7 L. R, A. (N. S.) 984
John D. Park & Sons Co. v. Hartman. 153 Fed. 24, 82 C. a A. 168, 12 L. R
A. (N. S.) 135; Dr. Miles Medical Oo. v. Jaynes Drug Co. (C. C.) 149 Fed. 838
Dr. Miles Medical Oo. v. John D. Park & Sons Co., 164 Fed. 803, 90 O O A
579. See *' Monopolies,** Dec. Dig. (Key No.) H 11-20; Cent. Dig. fS lO-U;
^'Patents,** Dec. Dig. (Key No.) i 216; Cent. Dig. i S29.
178 United States ▼. Addyston Pipe & Steel Co., 85 Fed. 271, 29 O 0. A.
141, 46 L. R. A. 122. See '* Monopolies;* Dec. Dig. (Key No.) H 11-20; Cent.
Dig. Ifi 10-14.
§ 105) ENUMERATED POWERS OF CONGRESS. 243
the commission of the unlawful acts may be charged as principals,
and under this rule a corporation and its officers may be joined as
defendants.*** The remedy by injunction is not available to a pri-
vate person, but only to the United States, acting by a district attorney
on the authority of the attorney general,**® but in such proceedings the
courts have power to dissolve the alleged illegal combination and en-
join the parties from forming or continuing similar agreements.***
It is the proper practice to make all the conspirators or parties to the
illegal agreement, both resident and nonresident, parties defendant to
the bill.*** The law also provides for the seizure and forfeiture to
the United States of goods in course of transportation pursuant to
such an illegal combination or trust agreement, the proceedings to
be similar to those in cases of property smuggled into the United
States.*** Further, an action for damages may be brought by any
person who is injured in his business or property by any violation of
the statute by any persons or corporations, and he may recover treble
damages.*** Such a suit may be brought by a municipal corporation
which has sustained injury in its business undertakings.*** Every
member of the illegal combination, trust, or pool is liable for the dam-
iT» United States t. MacAndrews & Forbes Co. (C. G.) 149 Fed. 823. See
'*MonopoHe$,** Dec. Dig. (Key A'o.) f SI.
i«» Southern Indiana Exp. Co. t. United States Exp. Co., 92 Fed. 1022, 35
C. C A. 172; Gulf, C. ft S. F. Ry. Co. ▼. Miami S. S. Co., 86 Fed, 407. 30
CCA. 142; National Fireproofing Co. y. Mason Builders* Ass'n, 169 Fed.
259. 94 O/C A. 535; Post v. Southern Ry. Co.. 103 Tenn. 184, 52 S. W. 301, 55
L. R. A. 481. Bee "Monopolies," Dec. Dig. {Key No.) S 24; Cent. Dig. { 17.
isi United States r. Trans-Missouri Freight Ass'n, 166 U. S. 290, 17 Sup.
Ct. 540, 41 L. Ed. 1007. See ** Monopolies," Dec. Dig. (Key No.) ^ 24; Cent.
Dig. I 17.
i«« United States v. Standard Oil Co. of New Jersey (C. C) 152 Fed. 290.
See *" Monopolies," Dec. Dig. (Key No.) { 24; Cent. Dig. i 17.
iss United States y. Addyston Pipe & Steel Co., 85 Fed. 271, 29 O. O. A.
141, 46 L. R. A. 122. See "Monopolies," Dec. Dig. (Key No.) i rt.
18* Wheeler-Stenzel Co. v. National Window-Glass Jobbers' Ass'n, 152 Fed.
864, 81 C C A. 658» 10 L. R. A. (N. S.) 972 ; Rice v. Standard OH Co. (C O.)
184 Fed. 464 ; People's Tobacco Co. v. American Tobacco Co., 170 Fed. 396, 95
CCA. 566. Bnt the law does not authorize an action against an alleged
trust corporation by one who was a party to its organization and a stock-
holder therein. Bishop ▼. American Preservers Co. (C. C.) 105 Fed. 845.
See "Monopolies," Dec. Dig. (Key No.) i 28; Cent. Dig. { 18.
18S Chattanooga Foundry & Pipe Works v. Atlanta, 203 U. S. 890, 27 Sup.
Ot 65, 51 L. Ed. 241 ; s. a below. City of Atlanta ▼. Chattanooga Foundry ft
Pipe Works, 127 Fed. 23, 61 C. C. A. 387, 64 L. R. A. 72L See "Monopolies,**
Dec Dig. (fey No.) i 28; Cent. Dig. i 18.
244 THB P0WBB8 OF CONGRESS. (CIu 8
ag«s accruing to the person injured^** But fraud and illegality are
never presumed, and the plaintiff must assume the burden of proving
the combination, conspiracy, or illegal contract,^ •* as also the burden
of pleading and proving some real and actual damage to his business
or property.^'^ This action is not within the five-years limitation of
Rev. St. § 1047 (U. S. Comp. St. 1901, p. 727), relating to actions for
"penalties or forfeitures," but is governed by the statute of limitation
of the state where the suit is brought.*'* Finally, when a person is
sued on a contract, he may plead in defense that the contract was in
violation of the statute, and thereby defeat a recovery.**® But the law
does not prevent a recovery for the breach of a collateral contract re*
lating to the manufacture or sale of goods.***
Same — Commercial Law.
This clause of the constitution cannot be so broadly interpreted as
to give congress the power to enact a general code of commercial
iB« City of Atlanta ▼. Chattanooga Foundry & Pipe Works, 127 Fed. 23,
61 a C. A. 387, 64 L. R. A. 721. See ** Monopolies,'* Dec Dig. (Key No.) U 21,
28; Cent. Dig. §{ 15, 18.
187 Loder v. Jayne (C. a) 142 Fed. 1010; United States ▼. Addyston Pipe
& Steel Co. (C. a) 78 Fed. 712. See '^Monopolies," Dec Dig. (Key No.) { 28;
Cent. Dig. i 18.
i«« Loder v. Jayne (C. O.) 142 Fed. 1010; Glbbs ▼. McNeeley (C O.) 102
Fed. 594. Plaintiff may recover the difference between the price he has had
to pay for the monopolized article and the reasonable price under natural
competitive conditions. City of Atlanta y. Chattanooga Foundry & Pipe Works,
127 Fed. 23, 61 a O. A. 387, 64 L. R. A. 721. And if he is compelled to con-
duct his business at a greater cost, he may recover such additional cost Lo-
der V. Jayne (O. G.) 142 Fed. 1010. But if he is not deprived of his existing
profits, trade, or commerce by the formation or action of an unlawful com-
bination or monopoly, he cannot recover merely because he is prevented from
embarking on a new enterprise by the threatening aspect of an already ex-
isting monopoly or combination. American Banana Co. v. United Fruit Co.
(O. a) 160 Fed. 184. i8fee ** Monopolies,** Dec Dig. (Key No.) f 28; Cent. Dig.
S 18.
i8» Chattanooga Foundry & Pipe Works y. Atlanta, 203 U. S. 390, 27 Sup.
Ct. 65, 51 L. Ed. 241; s. c. below. City of Atlanta v. Chattanooga Foundry
ft Pipe Co. (O. a) 101 Fed. 900. See "Monopolies,** Deo, Dig. (Key No.) i 28.
iBoE. Bement & Sons v. National Harrow Co., 186 U. S. 70, 22 Sup. Ct
747, 46 L. Ed. 1058. See "Monopolies,** Dec. Dig. (Key No.) U 11-20; Cent.
Dig. S§ lO-H; ^'Contracts,** Cent. Dig. S 557.
191 Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct 431, 46 L.
Ed. 679; Hadley-Dean Plate Glass Co. v. Highland Glass Co., 143 Fed. 242,
74 C. C. A. 462. See '^Monopolies,** Dec Dig. (Key ^oO §i 11-20; Cent. Dig.
if XO-H; ''Contracts,** Cent. Dig. | 557.
•<
§ 106) BNX7MBBATBD POWERS OF CONaRBBS. 245
law which shotdd be binding on the several states and their courts.
Some incidents or branches of the law of merchants may come within
the regulative power of the federal government under this provision,
and the individual states are so far prohibited from regulating it that
their acts must impose no restriction or hindrance upon foreign or
interstate commerce. Also, the courts of the United States do not
consider themselves bound by the decisions of the state courts on
questions of general commercial law, but will be guided by their own
conception of the doctrines of the mercantile law,*** To this extent,
therefore, there may be said to be a general commercial law of the
United States, but its origin is not derived from the power of con-
gress to r^^ulate commerce.
Same — Limitations on the Power.
The power of congress to regulate foreign and interstate commerce
is subject to two restrictions or limitations, prescribed in the same in-
strument by which the authority is granted. In the first place, the
constitution provides that no tax or duty shall be laid on articles ex-
ported from any state. And secondly, it is provided that "no preference
shall be g^ven by any regulation of commerce or revenue to the ports
of one state over those of another; nor shall vessels bound to or
from one state be obliged to enter, clear, or pay duties in another." *••
State Interference with Commerce Power.
The power of congress to regulate foreign and interstate commerce
involves a corresponding limitation upon the power of the states.
That is, it is not within the lawful power of a state to regulate such
commerce, or to impose restrictions or conditions upon it, or to inter-
fere with it in any manner which would be inconsistent with the para-
mount control of congress or with the specific acts or the general policy
of congress in regard thereto.*** Thus a state law which imposes
limitatioits upon the powers of a corporation, created under the laws
of another state, to make contracts within the state for carrying on
!•> Gates ▼. First Nat. Bank, 100 U. S. 239, 26 L. Ed. 680. And see West-
ern Union Tel. CJo. v. CaU Pub. Ck)., 181 U. S. 92, 21 Sup. Ot 661, 45 L. Bd.
765. Bite '*Oourt8,** Dec. Dig. {Key Ifo.) % S72; Cent. Dig. I 979.
Its Const U. S. art 1, S 9. See Armour Packing CJo. ▼. United States,
209 U. S. 56, 28 Sup. Ct. 428, 52 L. Ed. 681. See ''Commerce,*' Dec. Dig. (Key
No.) H ^10, 21, 71-78; Cent. Dig. H S-€, 8, 19, 57, 58, 71, 75.
1*4 LouiSTiUe ft N. R. Co. t. Eubank, 184 U. S. 27, 22 Sup. Ct 277, 46 L.
Ed. 416; United States v. Northern Securities Co. (O. C.) 120 Fed. 721. See
Commerce,** Dec, Dig. (Key No.) H 1-U; Cent. Dig. U 1-9, SO, 92.
M
24d THE POWBBS OF CONOBB8S. (Ch. 8
commerce between the states, violates this clause of the constitu-
tion."* And so far as it may be necessary to protect the products of
other countries and states from discrimination by reason of their for-
eign origin, the power of the national government over commerce
reaches the interior of every state in the Union.^'*
Same — Taxation,
A state tax which is distinctly laid on the commerce which comes
under the regulation of congress is void, even though congress has
refrained from legislating on the subject.^*^ No state therefore can
impose taxes on the transportation of persons or goods by interstate
railways or other lines of interstate travel, or upon the occupation or
business of carrying on interstate commerce, or the offices or agencies
of railways and other companies engaged in it, or upon the gross re-
ceipts of such companies, when derived partly from the transportation
i»» Cooper Mfg. Co. v, Ferguson, 113 U. S. 727, 5 Sup. Ct 739, 28 L. Ed.
1137; Intematloual Trust Co. v. A. Leschen & Sons Rope Oo., 41 Colo. 299,
92 Pac. 727; Hargraves Mills v. Harden, 25 Misc. Rep. 665, 56 N. Y. Supp.
937. State laws generally require foreign corporations, as a condition upon
the privilege of doing business within the state, to file. a copy of their ar-
ticles of incorporation, designate a resident agent for the service of process,
maintain a fixed office in the state, and so on. These laws are valid in so
far as they affect business originating or transacted wholly within the state,
but cannot operate as limitations or restrictions on transactions properly
coming under the description of interstate commerce. For various illus-
trations of this distinction, see Duncan v. State, 105 Ga. 457, 30 S. E.
755 ; Fifth Av. Library Soc. v. Hastie, 153 Mich. 56, 118 N. W. 727 ; Davis
& Rankin Bldg. & Mfg. Co. v. Caigle (Tenn. Ch. App.) 53 S. W. 240; Com-
monwealth V. Read Phosphate Co., 113 Ky. 32, 67 S. W. 45, 23 Ky. Law
Rep. 2284; Associated Press v. Commonwealth, 22 Ky. Law Rep. 1229, 60
S. W. 295. 523 ; W. B. Jklearshon & Co. v. Pottsvllle Lumber Co., 187 Pa. 12,
40 Atl. 1019. See ^'Commerce,*' Dec. Dig. (Key A'o.) §{ 1-U, 46; Cent, Dig, H
1-9, SO. 92, 100, lis, 126,
!»• Guy V. Baltimore, 100 U. S. 434, 25 L. Ed. 743 ; Lyag v. State of Mich-
igan, 135 U. S. 161, 10 Sup. Ct 725, 34 L. Ed. 150; Kehrer v. Stewart, 117
Ga. 969, 44 S. E. 854 ; State v. Omaha & C. B. Ry. & Bridge Co., 113 Iowa,
30, 84 N. W, 983, 52 L. R, A. 315, 86 Am. St, Rep. 357; State v. Virginia-
Carolina Chemical Co., 71 S. C. 544, 51 S. E. 455. See Field v. Barber
Asphalt Pav. Co., 194 U. S. 618, 24 Sup. Ct. 784, 48 L, Ed. 1142. See "Conh
meroe," Dec. Dig. {Key No.) U 1-14, 91, 54; Cent. Dig. U 1-9, «i, SO, 71, 92,
100, 106, 108, HI, 1S4.
i»TMcCulloch V. Maryland, 4 Wheat 316, 425, 4 L. Ed. 579; Brown v.
Maryland, 12 Wheat 419, 437, 6 L. Ed. 678 ; Low v. Austin, 13 Wall. 29, 20
L. Ed. 517; Wabash, St L. & P. R. Co. v. Illinois, 118 U. S. 557, 7 Sup. Ot
4, 30 L. Ed. 244 ; Bobbins y. Shelby County Taxing Dist, 120 U. S. 489, 7
§ 105) BNUMBBATBD POWERS OF CONGRESS. 247
of persons or property into, through, and out of the state.*** But
the fact that a railroad, a bridge, or a telegraph company is an agency
or instrument of interstate commerce does not prevent the state from
taxing so much of its property as is locally situated within its own
limits ; *•• and if the earnings or receipts of such a company can be
classified with certainty, so as to separate that portion derived from
interstate commerce from that portion which arises wholly from com-
merce carried on within the limits of the state, the latter portion may
lawfully be taxed.*** And this apportionment may be made by taking
as a basis the ratio between the total capital of the company and that
portion of its capital which is employed within the state, or the ratio
between the total value of its property and the value of that portion
used or employed within the state, or between its total mileage and its
mileage within the state.*** These principles apply not only to rail-
Sup. Ot 5d2, 80 li. Ed. 6d4; Richmond ft A. R. C6. T. R, A. Patterson Tobacco
Co., 92 Va. 670, 24 S. B. 261, 41 L. R. A. 51L See *Vommerce," Deo. Dig.
{Key No.) if 10, 71-78; Cent Dig. Sf 8, 6Jh70, 96, 12S-136.
!•• Norfolk & W. R. Co. v. Pennsylvania, 186 U. S. 114, 10 Sup. Ot 958,
84 L. Ed. 894; McCaU T. California, 186 U. S. 104, 10 Snp. Ct 881, 84 L.
Ed. 392 ; Leloup y. Port of Mobile, 127 U. S. 640, 8 Sup. Ct 1880, 32 L. Ed.
311; Philadelphia ft S. M. S. S. Co. v. Pennsylvania, 122 U. S. 326, 7 Sup.
Ot 1U8, 30 L. Ed. 1200 ; Fargo v. Midiigan, 121 U. S. 230, 7 Sup. Ot 857.
30 L. Ed. 888; State Freight Tax Oases, 15 WaU. 232, 21 L. Ed. 146; Piek
V. Chicago ft N. W. R. Co., 6 Bias. 177, Fed. Cas. No. 11,138; Clarke v. PhU-
adelphla, W. ft B. R. Ca, 4 Houst (DeL) 158; Galveston, H. ft S. A. Ry. Co.
▼. State (Tex. Civ. App. 1906) 93 S. W. 464. This last decision, concerning
a tax on the gross receipts of railroads, appears to have been correct in prin-
ciple, although it was reversed by the supreme court of Texas in State v.
Galveston, H. ft S. A. Ry. Co., 100 Tex. 153, 97 S. W. 71. See **Comineroe,'*
Dec Dig. (Key No.) if 7i-78; Cent. Dig. fi 54-70, 96, 123-136.
i»* Western Union Tel. Co. t. Missouri, 190 U. S. 412, 23 Sup. Ct 730, 47
L. Ed. 1116; Pittsburgh, C, C. ft St L. R. Co. v. Board of PubUc Works,
172 U. S. 82, 19 Sup. Ot 90, 43 L. Ed. 854; Reinhart v. McDonald (O. C.)
76 Fed. 403 ; Southern Ry. Co. v. Mitchell, 139 Ala. 629, 37 South. 85 ; State
T. Wiggins Ferry Co., 208 Mo. 622, 106 S. W. 1005. See St Clair County v.
Interstate Sand ft Car Transfer Co., 192 U. S. 454, 24 Sup. Ct 300, 48 L.
Ed. 51& See **Comfneroe,*' Deo. Dig. (Key No.) |i 7i-78; Cent. Dig. H 54-
70, 96, 123-136.
100 Pacific Exp. Co. y. Seibert, 142 U. S. 339, 12 Sup. Ct 250, 35 L. Ed.
1035; Lehigh VaUey R. Co. v. P^noylvania, 145 U. S. 1^ 12 Sup. Ot 806, 36
L. Ed. 672; Maine ▼. Grand Trunk R. Co., 142 U. S. 217, 12 Sup. Ct 121, 35
L. Ed. 994. See **Cofnmeroe,'' Deo. Dig. (Key No.) U 71-78; Cent. Dig. H
$4-70, 96, 123-136.
s*i New York v. Roberts^ 171 XT. S. 658» 19 Sup. Ct 58, 43 L. Ed. 823 ;
Pullman's Palace Car Co. v. Pennsylvania* 141 U. S. 18» 11 Sup. Ot 876, . 35
248 THB POWERS OF CONGRESS. (Ch. 8
road companies, but also to the business of parlor-car or sleeping-car
companies,*®* express companies,*®* and interstate telegraph com-
panies.*®* Goods produced in one state and intended for exportation
to another are liable to taxation as a part of the general mass of prop-
erty of the state of their origin until actually started in course of trans-
portation to the state of their destination or delivered to a carrier for
that purpose.*®" And conversely, goods sent from one state to another
cease to be in transit, and can be subjected to taxation, as soon as they
reach their place of destination and are there offered for sale, provided
they are taxed as other goods are and are not subjected to any extra
burden or discrimination by reason of their foreign origin.*®® For in
general, a tax laid by a state law in such a manner as to discriminate
unfavorably against goods which are the product or manufacture of
another state is an unlawful regulation of commerce.*®' But a state
L. Ed. 613 ; Delaware Railroad Tax, 18 Wall. 206, 21 L. Ed. 888 ; St Lonls,
I. M. & S. R. Co. V. Davis (G. C.) 132 Fed. 629; People v. Glynn, 125 App.
Dlv. 328, 109 N. Y. Supp. 86a See ''Commerce,*' Dec. Dig. (Key No.) {§ JI-
TS; Cent Dig. ff SJh^O, 96, 123-186.
202 Pullman's Palace Oar Co. v. Pennsylvania, 141 XT. S. 18, 11 Sup. CL
878, 35 L. Ed. 613; Pickard v. PuUman Southern Car Co., 117 U. S. 34, 6
Sup. Ct 635, 29 L. Ed. 785. See ''Commerce," Dec. Dig. (Key No.) H 71-78;
Vent. Dig. U 54-70, 96, 128-186.
SOS Weir ▼. Norman, 166 U. S. 171, 17 Sup. Ct 527, 41 L. Ed. 960; Pacific
Exp. Co. y. Seibert, 142 U. S. 339, 12 Sup. Ct 250, 35 L. Ed. 1035; Hardee
▼. Brown (Fla.) 47 South. 834 ; City of Leavenworth v. Ewing, 80 Kan. 58, 101
Pac. 664, See "Commerce,** Dec. Dig. (Key No.) {{ 71-78; Cent. Dig. H 54-70,
96, 128-186.
«o« Atlantic & P. Tel. Co. t. Philadelphia, 190 U. S. 160, 23 Sup. Ct 817,
47 L. Ed. 995. See "Commerce," Dec Dig. (Key No.) H 71-78; Cent. Dig. U
64-70, 96, 128-186.
205 Diamond Match Co. ▼. Ontonagon, 188 U. S. 82, 23 Sup. Ot 266, 47 L.
Ed. 394 ; Coe v. Errol, 116 U. S. 517, 6 Sup. Ot 475, 29 L. Ed. 715 ; Brown
V. Houston, 114 U. S. 622, 5 Sup. Ct 1091, 29 L. Ed. 257. See Kelley v.
Rhoads, 188 U. S. 1, 23 Sup. Ct. 259, 47 L. Ed. 359. See "Commerce,** Dec.
Dig. (Key No.) i§ 71-78; Cent. Dig. §§ 54-70, 96, 128-186.
•-«oe Kehrer v. Stewart 117 Qa. 969, 44 S. E. 854 (affirmed 197 U. S. 60, 25
Sup. Ct 403, 49 L. Ed. 663) ; Chrystal t. Macon, 108 Ga. 27, 33 S. E. 810 ;
Pittsburg & S. Coal Co. v. Bates, 40 La. Ann. 226, 3 South. 642, 8 Am. St
Rep. 497. See "Commerce,** Dec. Dig. (Key No.) {§ 71-78; Cent. Dig. {§ 54-
70, 96, 128-186.
20TI. M. Darnell & Son Co. t. Memphis, 208 U. S. 113, 28 Sup. Ot. 247,
52 L. Ed. 413 ; Woodruff v. Parham', 8 Wall. 123, 19 L. Ed. 382 ; Hinson v.
Lott 8 Wall. 148, 19 L. Ed. 387 ; Webber v. Virginia, 103 U. S. 334, 26 L.
Ed. 565 ; Welton y. Missouri, 91 U. S. 275, 23 L. Ed. 347 ; Tierman t. Rinker,
8 105) mnJMBBATBD POWERS OF CONOaBSS. 249
tax on legacies or successions payable to aliens is not repugnant to
the constitution, as such legacies are not ''exports" and the tax has no
relation to commerce.**^
Same — License Fees and Privilege Taxes.
A state license tax on traveling salesmen or the agents of foreign
manufacturers or dealers, which operates to the disadvantage of the
latter, or tends to discriminate against the introduction and sale of the
products of another state, is invalid.*®* At the same time, the state
has the right to "tax trades, professions, and occupations, and where
a resident citizen engages in general business subject to a particular
tax, the fact that the business done chances to consist, for the time
being, wholly or partially in negotiating sales between resident and
non-resident merchants, of goods situated in another state, does not
necessarily involve the taxation of interstate commerce." *^* The line
of distinction appears to be as follows : Where a resident agent of a
foreign producer or dealer is employed to solicit orders from samples,
for goods which he undertakes to deliver, but which are not in the state
at the time, but are to be shipped into it from another state, the or-
ders being transmitted to and filled by his principal, and the goods
sent either direct to the customer or sent to the agent for distribution
to customers in lots as received without breaking bulk, the business
of the agent is interstate commerce and not taxable by the state.'^^
102 n. S. 128, 26 L. Ed. 108. See ''Commerce," Dec. Dig. (Key No.) U 11-78;
Cent. Dig. H S4-70, 96, 12S-1S6.
SOS Mager t. Grima, 8 How. 490, 12 L. Ed. 1168. See "Commerce,^ Dec.
Dig. (Key No.) H 71-78; Cent. Dig. ti 54-70, 96, 12S-1S6.
>»*Walli]i|r ▼. Michigan, 116 U. S. 446, 6 Sup. Ct 454, 29 L. Ed. 691;
Cnitcher ▼. Kentadsy, 141 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 649; Asher t.
Texas, 128 U. S. 129, 9 Sup. Ct 1, 82 K Ed. 368; Coraon v. Maryland, 120
U. S. 502, 7 Sup. Ct 655, 80 I^ Ed. 699; Hurford v. State, 91 Tenn. 669, 20
8. W. 201; Commonwealth v. Myer, 92 Va. 809, 28 S. E. 915, 81 L. R. A.
879; Ames y. People, 25 Colo. 508, 55 Pac. 725; Olty of Buffalo v. Reayey,
87 App. DiT. 228, 55 N. Y. Supp. 792 ; Glover t. State, 126 Ga. 594, 55 S. E.
592; Osborne t. State, 83 Fla. 162, 14 South. 588, 25 L. R. A. 120, 89 Am.
St Rep. 99; Menke t. State, •70 Neb. 669, 97 N. W. 1020; City of New
Castle V. Cutler, 15 Pa. Super. Ct 612. See **Commerce," Dec. Dig. (Key No.)
H 69-70; Cent. Dig. H 100, lOS-122.
sio Ficklen ▼. Shelby County Taxing Dist, 145 U. S. 1, 12 Sup. Ot 810, 86
L. Ed. 601. And see Kolb t. Boonton, 64 N. J. Law, 163, 44 Atl. 873 ; Texas
Co. V. Stephens, 100 Tex. 628. 108 S. W. 481 ; State v. Bayer, 84 Utah, 257,
97 Pac. 129, 19 L. R. A. (N. S.) 297. See ''Commerce,'' Dec. Dig. (Key No.)
U 6S-78; Cent. Dig. §{ 54-70, 96, 100, 10S-1S6.
sii Rearidic t. Pennsylyania, 208 U. S. 507, 27 Sup. Ct 159, 51 L. Ed. 295 ;
250 THB POWERS OF CONORB88. (Ch. 8
But where the agent receives consignments of goods from his princi-
pal, not packed or marked for individual customers but intended for
him to keep in stock or to store in a warehouse, and he fills orders from
such stock of goods, the goods become a part of the general mass of
property in the state before delivery to customers and are therefore
taxable by the state without liability to objection on the ground of an
interference with interstate commerce.***
Same — Police Power.
The power of the national government to regulate foreign and in-
terstate commerce and the power of the individual states to enact regu-
lations for their internal police are co-ordinate powers. Both are nec-
essary and must be preserved entire, but neither can be so exercised as
materially to affect or encroach upon the other. State laws, not pri-
marily aimed at commerce, but intended as legitimate exertions of the
authority of the state to provide for the public safety, health, and
morals are not invalid because they may remotely or incidentally im-
pose restrictions on interstate commerce.*** Such are state statutes
CaldweU ▼. North Carolina, 187 U. S. 622, 23 Sup. Ct. 229, 47 L. Ed 836;
Stookard t. Morgan, 185 U. S. 27, 22 Sup. Ot. 576, 46 L. Ed. 785; In re
Tlnsman (G. C.) 05 Fed. 648 ; Arnold t. Yanders, 56 Ohio St 417, 47 N. E.
50, 60 Am. St. Rep. 753 ; City of Laurens v. Elmore, 55 S. (X 477, 33 S. B.
560, 45 L. R. A. 249 ; Pegrues v. Ray, 50 La. Ann. 574, 23 South. 904 ; Kins-
ley v. Dyerly, 79 Kan. 1, 98 Pac. 228, 19 L. R A. (N. S.) 406; In re Prlngle,
67 Kan. 364, 72 Pac 864; State v. Glasby, 50 Wash. 598, 97 Pac. 734, 21 L.
R. A. (N. S.) 797; State v. Bayer, 34 Utah. 257, 97 Pac. 129, 19 L. R. A.
(N. S.) 297; State ▼. Rankin, 11 S. D. 144, 76 N. W. 299; Adklns v. Rich-
mond, 98 Va. 91, 34 S. E. 967, 47 L. R. A. 583, 81 Am. St Rep. 705. See
^'Commerce,'* Dec. Dig. (Key No.) H 6S-18; Cent. Dig. H 54-70, 96, 100,
10S-1S6.
a IS American Steel ft Wire Co. ▼. Speed, 192 U. S. 500, 24 Sup. Ct 365,
48 L. Ed. 538 (affirming 110 Tenn. 524, 75 S. W. 1037, 100 Am. St Rep. 814) ;
Ware & Leland Co. v. Mobile County, 209 U. S. 405, 28 Sup. Ct 526, 52 L.
Ed. 855; Smith ▼. Jackson, 103 Tenn. 673, 54 S. W. 981, 47 L. R. A. 416;
People V. Smith, 147 Mich. 391, 110 N. W. 1102 ; Kinsley v. Dyerly, 79 Kan.
3, 98 Pac. 228, 19 L. R. A. (N. S.) 405. See '^Commerce,*' Dec. Dig. (Key No.)
SS 63-78; Cent. Dig. iS 54-70, 96, 100, 10S-1S6.
sisCroBsman t. Lurman, 192 U. S. 189, 24 Sup. Ct 234, 48 L. Ed. 401;
Sherlock t. Ailing, 93 U. S. 99, 23 L. Ed. 819; Robbins ▼. Shelby County
Taxing Dlst, 120 U. S. 489, 7 Sup. Ct 592, 30 L. Ed. 694 ; License Cases, 5
How. 604, 592, 12 L. Ed. 256; Logan & Bryan y. Postal Telegraph ft Cable
Co. (a 0.) 157 Fed. 570; Smith y. Lowe, 121 Fed. 753, 59 C a A: 185;
Pittsburgh, a, C. ft St L. Ry. Co. y. State (Ind.) 87 N. EL 1084; Schmidt
y. Indianapolis, 168 Ind. 631, 80 N. B. 632, 14 L. R. A. (N. S.) 787, 20 Am.
St Rep. 385; State y. Indiana ft O. Oil, Gas ft Mining Co., 120 Ind. 575, 22
N. E. 778, 6 Lb R. A. 679; Atlantic Coast Line Ry. Co. y. Commonwealth,
8 106) ENUMSBAXED POW19B8 OF CONGRESS. 251
and municipal ordinances prohibiting the exaction of excessive hours
of labor from railway employes,*^* regelating the speed of railway
trains within city limits and prescribing other precautions against ac-
cidents,**" and forbidding the running of freight trains on Sunday.***
But it is an unlawful interference with interstate commerce to require
a railway company to stop its through trains at given stations in the
state, at least where proper and adequate facilities for passengers and
freight are otherwise afforded at such stations.**^ No constitutional
objection on this ground can be taken to state laws directed against
lotteries or betting on races.*** In regard to the application of state
laws to particular commodities or articles of interstate commerce, the
rule is tliat no state can forbid their importation or sale, or lay any
burden upon the one or the other, whether by prohibitory laws, by
taxation, or otherwise, under the guise of police regulations, so long
as they remain in the original and unbroken packages of importa-
tion.*** So far as regards intoxicating liquors, this rule was changed
102 Va. 599, 46 S. E. 911; State ▼. Chicago, M. & St P. R. Go., 136 Wis.
407, 117 N. W. 686, 19 L. R. A. (N. S.) 326; People v. Niagara Fruit Oo.,
173 X. Y. 629. 66 N. E. 1114. See **Commerce,'* Dec. Dig. (Key No,) U l-U;
Cent. Dig. %% 1-9, SO, 92.
«i* State V. Chicago, M. & St. P. R. Co., 136 Wis. 407, 117 N. W. 686, 19
L. R. A. (N. S.) 326. See **Commcrce,** Dec. Dig. {Key Vo.) )§ 10, 12, 16, 59.
«i» Erb V. Morasch, 177 U. S. 584. 20 Sup. Ct 819, 44 L. Ed. 897 ; New York,
N. H. & H. K Co. V. New York. 1C5 U. S. 628, 17 Sup. Ct 418, 41 K Ed. 853 ;
Southern Ry. Co. v. King, 100 Fed. 332, 87 C. a A. 284 ; Chicago & A. R. Co.
▼. Carllnvllle, 200 111. 314. 65 N. B. 730. 60 L. R. A. 391, 93 Am. St Rep. 190 ;
Willfong V. Omaha & St L. R. Co., 116 Iowa, 548,. 90 N. W. 358; Southern
Ry. Oo. V. Grizzle, 131 Ga. 287, 62 S. E. 177 ; Peterson y. State. 79 Neb. 132.
112 N. W. 306. 14 L. R. A. (N. S.) 292. 126 Am. St. Rep. 651. Bee "Com-
merce,** Dec. Dig. (Key No.) SS 27, 58; Cent. Dig. f 79.
si« Heunlngton ▼. Georgia, 163 U. S. 299, 16 Sup. Ct 1086. 41 L. Ed. 166;
Seale t. State, 126 Ga. 644. 55 S. E. 472; State ▼. Southern Ry. Oo., 119 N.
a 814, 25 S. E. 862, 56 Am. St Rep. 689. Contra, Norfolk & W. R. Co. v.
C6mmonwealth, 88 Va. 95. 13 S. E. 340, 13 L. R. A. 107, 29 Am. St Rep. 705.
Bee ^'Commerce;' Dec, Dig. {Key No.) fS 27, 58; Cent. Dig. i 80.
«iT Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328. 28 Sup. Ot 121,
52 L. Ed. 230; Mississippi R. Commission v. Illinois Cent R. Co., 203 U.
S. 335. 27 Sup. Ct 90, 51 L. Ed. 209; St Louis, I. M. ft S. R. Co. ▼. State,
86 Ark. 284, 107 S. W. 989. See ''Commerce," Dec. Dig. {Key No.) %% 27, 58;
Cent. Dig. i 79.
<it State y. Harbourne, 70 Conn. 484, 40 Atl. 179, 40 L. R. A. 607, 66 Am.
8t Rep. 126 ; State y. Stripling, 113 Ala. 120, 21 South. 409, 86 L. R. A. 81.
Bee **Commeroe,** Dec. Dig. {Key No.) % 4S; ** Lotteries,'' Dec. Dig. {Key No.)
I 20.
SI* Brown y. Maryland, 12 Wheat 419, 6 L. Ed. 678; Leisy y. Hardin,
252 THB POWERS OF CONGRESS. (Ch. 8
by an act of congress passed in 1890 and commonly called the ''Wilson
Act," subjecting to state laws enacted in the exercise of the police
power all such liquors upon their arrival in the state;**® and so far
as regards game and fish, the rule is modified by an act of congress,
known as the "Lacey Act," which provides that the game laws of a
state may be made equally applicable to game imported into the state
as to game kille4 within the state.**^ But with-these exceptions the
rule remains as stated, and has been applied to laws relating to the
importation and sale of dairy products,*** oleomargarine,*** ciga-
rettes,*** black powder for use in coal mines,*** and horses with
135 U. S. 100, 10 Sup. Gt 681, 34 L. Ed. 128 (oyerrollns License Cases, 5 How.
504, 12 L. Ed. 256) ; McGregor y. Cone, 104 Iowa, 465, 73 N. W. 1041, 89 L.
R. A. 484, 65 Am. St Rep. 622. An **origlnal package" within the meaning
of the law of interstate commerce Is the package delivered by the Importer
to the carrier at the Initial point of shipment. In the exact condition In which
It was shipped. Guckenhelmer y. Sellers (C. C) 81 Fed. 997; McGregor y.
Cone, 104 Iowa, 465, 73 N. W. 1041, 39 L. R. A. 484, 65 Am. St Rep. 522.
See **C<mm9rce," Dec Dig, (Key No.) U Uf 60, 72; Cent. Dig. fl SO, SI, $4,
m.
s20Act Cong. Aug. 8, 1890, 26 Stat 313 (U. S. Comp. St 1901, p. 3177).
See Fopplano y. Speed, 199 U. S. 501, 26 Sup. Ct 138, 50 L. Ed. 288 ; In re
Rahrer, 140 U. S. 545, 11 Sup. Ct 865, 35 L. Ed. 572 ; Minneapolis Brewing
Co. Y. McGUUyray (C. (X) 104 Fed. 258; In re Bergen (C. O.) 115 Fed. 339;
City of Mobile y. PhllUps, 146 Ala. 158, 40 South. 826, 121 Am. St Rep. 17
(affirmed PhUUps y. aty of Mobile, 208 U. S. 472, 28 Sup. Ct 370, 52 L. Ed.
578) ; Vance y. W. A. Vandercook Co., 170 U. S. 438, 18 Sup. Ot 674, 42 L.
Ed. 1100 ; Pabst Brewing Co. y. Crenshaw, 198 U. S. 17, 25 Sup. Ct 552, 49
L. Ed. 925; Scott v. Donald, 165 U. S. 58. 17 Sup. Ct 265, 41 li. Ed. 632.
See ^'Commerce,** Deo. Dig. {Key No.) H U* iOt 41, 60; Cent. Dig. B 29S1,
91-95.
sai See New York y. Hesterberg, 211 U. S. 31, 29 Sup. Ct 10, 53 L. Ed.
75; In re Davenport (O. C.) 102 Fed. 540; In re Delnlnger (C. C.) 108 Fed.
623 ; People y. Buffalo Fish Co., 164 N. Y. 93, 58 N. E. 34, 52 L. R. A. 803,
79 Am. St Rep. 622 ; Wells Fargo Express Co. v. State, 79 Ark. 349, 96 S.
W. 189. See '^Commerce,'* Dec. Dig. (Key No.) ( 15.
m City of St Louis V. Wortman, 213 Mo. 131, 112 S. W. 520. See ''Com-
merce,** Dec. Dig. (Key No.) ( 41.
aas SchoUenberger y. Pennsylvania, 171 U. S. 1, 18 Sup. Ct 757, 43 L. Ed.
49; Fox V. State, 89 Md. 381, 43 Atl. 775, 73 Am. St Rep. 193. See **Com-
merce," Dec. Dig. (Key No.) ( 41.
^24 Austin V. Tennessee, 179 U. S. 343, 21 Sup. Ot 132, 45 L. Ed. 224;
Sawrie v. Tennessee (O. C.) 82 Fed. 615. See ''Commerce,*' Deo. Dig. (Key
No.) H 15, 41-
t2s In re Williams, 79 Kan. 212, 98 Paa 777. See "Commerce," Deo. Dig.
(Key No.) t 60.
S 105) BNUMBRATBD POWERS OB* CONOBB88. 253
docked tails.'** But proper and reasonable inspection laws of tht
states, enacted under the police power and for objects properly within
its scope, are not invalid although they may incidentally affect inter-
state commerce.'*^ But it is not within the police power of a state
to subject an article of interstate commerce passing through the state,
or which may be temporarily stored therein for distribution to pur-
chasers in other states, to exactions either in the way of taxes or in-
spection fees.***
Same — Execution of Judicial Process.
A railroad car, coming into a state, cannot be levied on there under
a writ of attachment, when it is loaded with freight from another
state and is to be returned loaded to such other state, nor will the
railroad company having such cars in its possession be liable to gar-
nishment by reason of such possession, as this would constitute an
unlawful interference with interstate commerce.*** But freight money
in the hands of a final carrier, belonging to a non-resident initial car-
rier, is a mere debt, with no special character on account of its being
earned in interstate commerce, and is subject to garnishment*** And
service of a summons from a Massachusetts court on a citizen of Ver-
mont, who is at the time of service traveling through Massachusetts
in order to attend court in Connecticut as a witness for and at the
request of a citizen of Massachusetts, is not invalid as an interference
with interstate commerce.**^
Interstate Commerce Act,
The most important legislation of congress, in the exercise of its
power to regulate commerce among the several states, is that which is
««• Stubbs V. People, 40 Colo. 414, 90 Pac. 1114, 11 L. lU A. (N. S.) 1071,
122 Am. St Rep. 1068. Bee ^'Commerce," Dec, Dig, {Key No,) ( 55,
Ml Pabst Brewing Oo. v. Creushaw, 198 U. S. 17, 25 Sup. Ct. 552. 49 L.
£d 926 ; AsbeU v. State, 209 U. S. 251, 28 Sup. Ct 485, 62 L. Ed. 778 ; New
Mexico V. Denver & R. G. R. Oo., 203 U. S. 38, 27 Sup. Ct 1, 51 L. Ed. 78 ;
Kansas City Southern Ry. Co. v. State (Ark.) 119 S. W. 288. See ^'Commerce,*'
Dee. Dig, {Key, No,) H ii, 49-51 ; Cent, Dig. §| ^8-^9,
t«» Pabst Brewing Co. y. Crenshaw (C. C.) 120 Fed. 144. Bee '^Commerce:'
Dec, Dig. (Key No.) H 49-51; Cent. Dig, fl 48-5S.
a«» Wall y. Norfolk & W. R. Co., 52 W. Va. 485, 44 S. E. 294, 64 L. R. A.
501, 94 Am. St Rep. 948; Shore & Bro. v. Baltimore & O. R. Co., 76 S. a
472, 57 S. B. 526; Missouri Pac. Ry. Co. v. Kennett, 79 Kan. 232, 99 Pac. 269.
Bee **Commeroe,'* Dec Dig. {Key No,) ( 81; Cent. Dig. t 45.
sto Johnson y. Union Pac. R. Co. (R. I.) 69 Atl. 29a Bee "Commerce,"
Dec Dig. (Key No.) | 81; Cent. Dig. t 45.
SSI Holyoke & South Hadley Falls Ice Co. v. Ambden (C. C.) 55 Fed. 593,
21 L. R. A. 819. Bee ^'Commerce," Dec. Dig. (Key No.) ( 81; Cent. Dig, f 45.
254 THB P0WBR8 OF CONGRESS. (Ch. 8
embodied in the act of 1887, commonly called the "Interstate Commerce
Act." *** By the terms of this act, it applies to all common carriers
engaged in the transportation of persons or property, by rail or water
or both, under a common control or management or arrangement, from
one state to another, or from any point in the United States into a
foreign country, or from a point in the United States through a for-
eign country to another point in the United States. But the act is not
to apply to traffic carried on wholly within a state. All charges made
by such carriers for services rendered in such business shall be reason-
able and just. No unjust discrimination shall be made, whether by re-
bate, special rate, drawback, or other device, nor shall any undue pref-
erence be given to any person, corporation, or locality, or to any
particular description of traffic. Equal facilities for the interchange
of traffic shall be extended to connecting lines, and no discrimination
shall be made as between such lines. No greater aggregate charge
shall be made for a "short haul" than for a "long haul," except by
authorization of the commissioners. Carriers are prohibited from pool-
ing their freight or earnings, and combinations among carriers, intend-
ed to prevent the transportation of goods from being continuous to
their place of destination, are declared unlawful. A right of action
for damages is given to any person injured by a violation of any of the
provisions of the act. A commission, composed of five members, is
established for carrying into effect the provisions of the act, and they
are authorized to hear and investigate complaints, and to enforce the
provisions of the law. All common carriers subject to the provisions
of the act are required to make annual reports to the commission, set-
ting forth certain statistics of their business. This body, in investigat-
ing complaints under the act, has power to require the production of
books and papers,*** and, within certain limitations, to compel the at-
tendance and testimony of witnesses.*** It is a body vested with ju-
dicial and administrative functions, and is an expert tribunal charged
by law with the determination of the reasonable or unreasonable char-
282 24 Stat 3?d. Amended by Act Cong. March 2, 1889, 25 Stat. 855 (U.
S. Comp. St 1901, p. 3154), and by Act Gong. June 29, 1906, 34 Stat 684 (U.
S. Comp. St Supp. 1909, p. 1150).
288 Interstate Commerce Commission v. Balrd, 194 U. S. 25, 24 Sup. Ot
5(53. 48 L. Ed. 800. See '^Commerce;' Dec. Dig. {Key No,) § 87; Cent, Dig.
I 199,
284 Harrlman v. Interstate Commerce Commission, 211 U. S. 407, 29 Sup.
Ot 115, 53 L. £d. 253. See ^'Commerce,** Dec Dig, {Key No,) { 87.
§ 106) BNX7MBRATED POWERS OF CONOBBSS. 255
acter of rates charged for transportation in interstate ccMnmerce,*^*
but it possesses no legislative functions, and therefore, after it has
determined that an existing rate is unreasonable, it has no authority
to prescribe rates to control in the future, whether maximum, mini-
mum, or absolute.^'* Its determinations are so far judicial as to be
binding not only on the immediate parties to a controversy but also
on their successors in interest,'*^ and the equity courts will not ordi-
narily enjoin the enforcement of rates which are the subject of a pend-
ing controversy before the interstate commerce commission,*** or of
rates which it has officially determined to be proper and reasonable.***.
Further the law allows no appeal or writ of error to review a decision
of this commission awarding or denying reparation for an alleged
violation of the statute.**^ But the commission has no power to en-
force its own orders, which must be done by the United States cir-
cuit court (sitting in law or equity as the case may be) on a summary
application to it made either by the commission or by any person in-
terested.*** And while its reports and its findings of fact are presum-
tt» Sonthem R. Co. v. Tift, 148 Fed. 1021, 79 C. C. A. 536; New York Cent.
& H. R. R. Co. y. Interstate Commerce Commission (C. C.) 168 Fed. 131. See
^'Commerce,*' Dec. Dig, {Key No,) { 85.
ss« Interstate Commerce Commission v. Cincinnati, N. O. & T. P. R. Co.,
167 U. S. 479, 17 Sup. Ct 896, 42 li. Ed. 243; Interstate Commerce Com-
mission Y. Alabama Midland R. Co., 168 U. S. 144, 18 Sup. Ct. 45, 42 L. Ed.
414 ; Interstate Commerce Commission v. Lake Shore & M. S. R. Co., 202 U.
S. 613, 26 Sup. Ct. 766, 50 L. Ed. 1171 ; Interstate Commerce Commission v.
Norttaeastem R. Co., 83 Fed. 611, 27 C. C. A. 631; Farmers* Loan & Trust
Co. V. Northern Pac. Ry. Co. (O. C.) 83 Fed. 249. See ** Commerce,*' Dec. Dig.
(Key yo.) §5 85, 88; Cent. Dig. f$ 18S, 1S9, HI.
f7 Interstate Commerce Commission v. Western New York & P. R. Co.
(Q C-) 82 Fed. 192. See **Commerce;' Dec. Dig. (Key No.) | 88.
fBTitt V. Southern R, Co. (C. C.) 123 Fed. 789. See ^'Commerce," Dec.
Dig. {Key Vo.) § 89.
2a» Great Northern R. Co. v. Kalispell Lumber Co., 165 Fed. 25, 91 O. C.
A. 63. But see Missouri, K. & T. R. Co. y. Interstate Commerce Commission
(a C.) 164 Fed. 645. See ^'Commerce,** Dec. Dig. (Key No.) §§ 85, 91.
a*oPenn Refining Co. v. Western New York & P. R. Co., 208 U. S. 208,
28 Sup. Ct 268, 52 L. Ed. 466. See **Commerce,** Dec. Dig. (Key No.) | 98;
Cent. Dig. t U8.
241 Southern Pac. Co. y. Interstate Commerce Commission, 200 U. S. 536,
26 Sup. OL 830, 50 L. Ed. 585; Penn Refining Co. y. Western New York &
P. R. Co., 208 U. S. 208, 28 Sup. Ct 268, 52 L. Ed. 456; Fajmers' Loan &
Trust Co. y. Northern Pac. R. Co. (C. C.) 83 Fed. 249. Bee ''Commerce^*' Dec.
Dig. (Key No.) U 01, 92; Cent. Dig. H U2, IJfi.
256 THB POWBRS OF CONGRESS. (Ch. 8
ed correct and are made prima facie evidence,*** they are not conclu-
sive on the courts, but may be reviewed, and the orders of the com-
mission may be set aside or corrected when based on an erroneous
construction of the statute or on any misconception or misapplication
of the law."'
Commerce with Indian Tribes.
Intercourse between the people of the United States and the Indian
tribes "is a subject of federal jurisdiction, the same as the naturaliza-
tion of aliens, the subject of bankruptcies, or the establishment of post-
offices ; and therefore congress may pass laws regulating or even for-
bidding it, and providing for the punishment of acts or conduct
growing out of it or connected therewith, resulting in injury to either
the Indian or the other party, or calculated to interrupt or destroy its
peaceful or beneficial character." *** The power of congress in this
regard is not limited by state lines or governments, but may be exer-
cised and enforced wherever the Indians are found, whether upon the
reservations, in the territories, or within the states.*** And congress
may regulate intercourse or commerce not only between white persons
and Indians, but also between the different Indian tribes and between
their members. If, for instance, it should enact by law that one In-
dian tribe should not furnish arms or ammunition to another Indian
tribe, this would be within its constitutional powers. So also is a law
S4S penn Refining Oo. y. Western New York & P. R. Oo., 208 U. S. 208, 28
Sup. Ct 268, 62 L. Ed. 456; Tift v. Southern R. Co. (Q C.) 138 Fed. 753;
Southern Ry. Ck>. v. St. Louis Hay & Grain Co., 153 Fed. 728, 82 C. (X A. 614 ;
Southern R. Oo. v. Tift, 148 Fed. 1021, 79 C. C. A. 536 ; Interstate Commepce
Commission v. Louisville & N. R. Co. (C. C.) 118 Fed. 613. See ''Commerce,'*
Dec. Dig, {Key No.) U 88-98; Cent, Dig. H JS9-H8.
34* Interstate Conmierce Commission v. Clyde S. S. Co., 181 U. S. 29, 21
Sup. Ct 512, 45 L. E)d. 729; Interstate Commerce Commission v. Alabama
Midland R. Co., 168 U. S. 144, 18 Sup. Ct. 45, 42 L. E^. 414; Stickuey y.
Interstate Commerce Commission (C. C.) 104 Fed. 638. See ''Commerce,**
Dec. Dig. {Key No.) §§ 90-98; Cent. Dig. |§ 142-148.
2** U. S. V. Bridleman (D. C.) 7 Fed. S94. And see Muskogee Nat. Tele-
phone Oo. Y. Hall, 118 Fed. 382, 55 a O. A. 20a But when a tribe of In-
dians within a state has ceased to exercise the powers and functions of its
government, and has ceased to be a tribe except in name only, It is not a
violation of the constitutional provision for the state to purchase tribal lands
and terminate the existence of the tribe. In re Narragansett Indians, 20
R. I. 715, 40 Atl. 347. See ''Indiana," Deo. Dig. {Key No.) t SS; Cent. Dig.
§§ 52, 59.
s«BU. S. Y. Bamhart {(X (X) 22 Fed. 285; U. S. v. Bridleman (D. 0.) 7
Fed. 894. See "Indians,*' Dec Dig. {Key No.) § S3; Cent. Dig. §{ 52, 59.
S 106) BNUMBRATBD P0WBB8 OF CONORB88. 267
prohibiting any person from disposing of spirituous liquors to an In-
dian; and this includes the case of one Indian who sells liquor to
another Indian.***
Naturaligation.
The power of congress to provide a uniform system for the natural-
ization of aliens is exclusive, and its exercise is entirely incompatible
with the exercise of any similar authority on the part of the several
states.'*^ An alien is one who, in consequence of his birth under a
foreign jurisdiction, is not by nature entitled to the privileges of citi-
zenship in the particular state or country. And naturalization is the
act by which, in pursuance of lawful authority, he is invested with
the rights, privileges, and immimities belonging to the natural bom
citizen. The propriety of confiding the power of naturalization to the
national government exclusively is supported by several obvious rea-
sons. In the first place, our foreign intercourse is committed to the
federal government exclusively, and as it is one of the privileges of
American citizens to claim the protection of that government against
all aggressions upon their rights by foreign powers or their agents, it
is peculiarly the province of the United States to determine who are
the persons entitled to that character. Again, under the constitution
the citizens of each state are entitled to all the privileges and immuni-
ties of citizens in all the other states. And if each state enjoyed the
power of investing whomsoever it might choose with the character of
citizenship, it could grant to any class or race of foreigners all the
rights and privileges in other states which those states would be able
to confer upon the persons of their own choice, thus introducing an
element of intolerable discord. And further, any one state or district
would be able to obtain great and unfair advantages over another by
inducements held out to foreigners in easier measures of naturalization
and shorter terms of probation.***
But while the states are thus prohibited from granting naturalization,
it does not follow that they may not legislate on the subject of aliens
<«• U. S. y. Sbaw-Mnx. 2 Sawy. 864, Fed. Gas. No. 16,268. See "Indians,''
Dec Diff. (Key VoJ U 3S-d6; Cent, Dig. U 5t, 59^5.
*4TU. S. T. Villato, 2 Dall. 870, Fed. Oas. No. 16,622; Passenger CSsses, 7
How. 288, 666, 12 L. Ed. 702 ; Golden y. Prince, 3 Wash. C. 0. 813, Fed. Gas.
Ko. 5,509; Oardlna v. Board of Registrars of Jefferson County (Ala.) 48 South.
788. The early case of OoUet y. OoUet, 2 Dall. 294, Fed. Qas. No. 8,001,
holding the contrary opinion, has long since been discredited. Bee ^^AUene^**
Dee, Dig. {Key Vo.) % 60; Cent. Dig. H ii7, 118.
t4s Pom. Const Law, ( 886.
BL.CoNn.L. (Sd.B^.)— IT
258 THE POWERS OF CONGRESS. (Ch. 8
and their rights and disabilities, subject to the provisions of treaties.
For example, each stafe may grant to aliens the privilege of holding
and transmitting real estate within its limits, or it may withhold this
right. Again, the state may confer upon an alien, after he has resided
a certain length of time within its borders, or on other conditions, the
; right of suffrage. And hence follows a curious anomaly in our laws.
For it must be observed that the constitutioii of the United States
does not confer the right of voting upon any one. Neither does it
declare that voters for federal officers must be citizens of the United
States, nor prescribe any qualification for those who shall be entitled
to participate in federal elections other than that they "shall have the
qualifications requisite for electors of the most numerous branch of
the state legislature." '*• As a result, it is entirely possible for a state
to confer upon a person such rights and qualifications as will entitle him
to vote for representatives in congress, and for the members of the
legislature which will elect United States senators, and even for the
members of the electoral college which will choose the President, while
nevertheless, for all purposes of federal jurisdiction and federal law,
he remains as much an alien as if he had never set foot in the United
States.**^ And this state of affairs actually exists in some of the
western states.
In this sense and to this extent, the state can invest aliens with the
privileges of its own citizenship. But it cannot make them citizens
of the United States. Nor can it make them "citizens of a state" in
any complete sense. Whatever rights and immunities it may confer
upon them must be restricted to its own territory and its own laws.
Thus the individual states, in dealing with the status of the alien,
cannot grant to him those privileges and immunities which the constitu-
tion guaranties and secures to the "citizens of each state" to be en-
joyed in all the other states.**^
Naturalization may be effected in at least four ways. First, by the
grant of the privilege to certain namedjndividuals. Second, under
general laws of which any person who fulfills the requisite conditions
may avail himself. Third, when the United States acquires territory
a*» Const U. S. art 1, § 2.
280 1 Hare, Am. Const Law, 521; Pom. Const Law, §{ 206-210; Minneapo-
lis V. Reum, 6 C. C. A. 31, 56 Fed. 576. See ^'Aliens,** Dec Dig. (Key No.) §
70; Cent. Dig. § 16.
S61 Scott y. Sandford, 19 How. 303, 15 L. Ed. 601 ; Lanz y. Randall, 4 Dill.
425, Fed. Caa, No. 8,080. See "Alient," Dec. Dig. {Key yo.) § 60; Cent. Dig.
§ 118; **CitizeM;* Dec. Dig. {Key No.) { 11; Cent. Dig, § 18.
S 105) ENUMERATED POWERS OF CONGRESS. 259
formerly belonging to a foreign power, with its people, the latter may
thereupon become citizens of the United States. This was the case
with the inhabitants of Florida, upon its cession by Spain to the United
States, and also the case when Texas was annexed to the United
States.*'* But unless the treaty or act of cession expressly makes the
people of the ceded territory citizens of the United States, the power
to confer this status upon them rests with congress, and the privilege
may be granted or withheld in its discretion. This is the rule which
has been applied with reference to the inhabitants of Porto Rico and
the Philippines.*** Fourth, there may be a collective naturalization
upon the admissifiiLjalf . a territory to statehood, including all those
who arc resident in the territory and included in the new political
community, but who were not previously citizens of the United
States.***
Congress has seen fit to restrict the privilege of naturalization. It is
not accorded to aliens of all nations and races, but only to "aliens be-
ing free white persons, and to aliens of African nativity and persons
of African descent." *** Under this law, a native of China, of the
Mongolian race,*** or a native of the Sandwich Islands, belonging to
the Hawaiian race,*'^ is not entitled to become a naturalized citizen
of the United States.
SS2 Opiniong of the Justices, 6S Me. 589; CoDtzen y. United States, 179 U.
S. 191. 21 Sup. Ct 98, 45 L. Ed. 14a See De Baca v. United States, 37 Ct CI.
482. See 'Vitizens;* Dec. Dig, (Key No.) §§ 5, 6; Cent, Dig, |§ 4» 5.
2s« De Lima y. Bidwell, 182 U. 8. 1, 21 Sup. Ct 743, 45 L. Ed. 1041 ; Downes
T. Bidwell, 182 U. S. 244, 21 Sup. Ct. 770, 45 L. Ed. 1088; Hawaii v. Mankichl,
190 U. S. 197, 23 Sup. Ct. 787, 47 L. Ed. 1016 ; Dorr v. United States, 195 U. S.
138. 24 Sup. Ct. 808, 49 L. Ed. 128 ; Goetze t. United States, 182 U. S. 221, 21
Sup. Ct 742, 45 L. Ed. 1065 ; Bosque v. United States, 209 U. S. 91, 28 Sup. Ct
501, 52 L. Ed. 698. As to Alaska, see In re Mlnook, 2 Alaska, 200. See "Citi-
zens,** Dec, Dig, (Key No,) || 5, 6; Cent, Dig. §( 4» 5.
28 « Boyd y. Nebraska, 143 U. S. 135, 12 Sup. Ct 375, 36 L. Ed. 103. See
"Citizens,'* Dec. Dig, (Key No,) fit 5, 6; Cent, Dig, fifi 4, 5.
2»» Rey. St U. S. fi 2169 (U. S. Comp. St 1901, p. 1333). A person of half
white and half Indian blood Is not a "white person'* within the meaning of the
naturalization laws. In re CamiUe (C. C.) 6 Sawy. 541^ 6 Fed. 256. Nor Is
one whose mother was half Chinese and half Japanese, though his father
was an Englishman. In re Knight (D. C.) 171 Fed. 299. See '* Aliens,** Dec
Dig. (Key No.) fi 61; Cent, Dig. fi 119,
2 Be In re Hong Yen Chang, 84 Cal. 163, 24 Pac. 156; In re Ah Yup, 6 Sawy.
2»T In re Kanaka Nian, 6 Utah, 259, 21 Pac. 993, 4 L. B. A. 726. Bee "A^
iens,** Dec. Dig. (Key No.) fi 61; Cent, Dig. fi 119.
260 TRM P0WSB8 OB* CONOBBM. (Ch. 8
Bankruptcy.
The power of congress to enact uniform laws on the subject of
bankruptcies does not deprive the states of the power to pass laws
dealing with the same subject when there is no national bankrupt law
in existence. But as soon as congress adopts a measure of this char-
acter, all the state laws relating to bankruptcy or insolvency are there-
by superseded and suspended until the national law shall be repeal-
ed.*** State laws, when lawfully in force, are subject to the limitation
that they cannot affect debts previously contracted (since that would
have the effect to impair the obligation of contracts) and that they
have no application to non-resident creditors, unless it be with their
own consent.*** But since there is nothing in the federal constitution
to prohibit congress from passing laws impairing the obligation of
contracts, it is universally conceded that a national bankrupt law,
though it includes such features, with provisions compulsory upon
creditors, is valid and constitutional.*** In fact, the power of con-
gress over the subject of bankruptcy is subject to no other restriction
than the requirement that its law shall be uniform. It is not to be
gauged or limited by the British statutes of bankruptcy which were in
force in 1787. Although by those statutes, as then in force, the bank-
ruptcy laws applied only to persons engaged in trade, congress is not
obliged to limit its laws on the subject of bankruptcy to traders.**^
"The power under this clause is sufficiently comprehensive to enable
congress to adopt a uniform system of bankruptcy, commit its adminis-
tration to such of the courts of the United States as it might choose,
and to provide the modes of procedure, special or otherwise, as they
1S5. Fed. Cas. No. 104 ; In re Look Tin Blng (G. G.) 21 Fed. 905 ; In re Gee
Hop (D. C.) 71 Fed. 274. See "Altetw," Dec Dig, {Key No,) § 61; Cent. Dig,
1120.
SBS Stnrgee v. Crowninshleld, 4 Wheat 122, 4 L. Ed. 529; Ogden t. Saun-
ders, 12 Wheat. 213, 6 L. Bd. 606 ; Baldwin y. Hale, 1 Wall. 228, 17 L. Ed. 531.
See "^Bankruptcy,** Dec Dig. (Key No.) i9; Cent. Dig. (§ 7-«.
2ft» Gilman y. Lockwood, 4 Wall. 409, 18 L. Ed. 432; Brown y. Smart, 145
tJ. 8. 464, 12 Sup. Gt 958, 86 L. Ed. 773; Hempsted y. Wisconsin Marine &
Fire Ins. Go. Bank, 78 Wis. 375, 47 N. W. 627. See '"Conetitutional Law,*' Dec.
Dig. {Key No.) § 16S; Cent. Dig. t§ 48JhW.
teo Eyans y. Eaton, Pet G. (X 322, Fed. Gas. No. 4,559; In re Owens, 12 K.
B. R. 518, Fed. Gas. No. 10,632; Keene y. Mould, 16 Ohio, 12; Morse y. Hoyey,
1 Barb. Ch. (N. T.) 404. See "Constitutional Law,** Dec Dig. {Key No.) § 16S;
Cent. Dig. U ^^i-f^S.
sf 1 Kunzler y. Kohaus, 5 Hill (N. Y.) 817. See ""Bankruptcy,** Dec Dig. {JKey
No.) %1; Cent. Dig. 1 1.
S 106) BNUMBKATBD P0WBB8 OF CONORB88. 261
migfaty in. their discretion^ deem best adapted to secure and accomplish
the objects of the act; and if such proceedings should differ from
those in ordinary cases and suits, they would, notwithstanding, be
obligatory upon the courts, as congress has, by the constitution, plen-
ary authority over that subject." *•• A provision in a bankruptcy law
allowing an exemption to the extent of the exemption allowed by the
laws of the state in which the bankrupt resides, is not obnoxious to
the requirement that such laws shall be "uniform." *•• Thus far in
our history, this power of congress has been exercised four times.
The bankruptcy law of 1800 was repealed in 1803. That of 1841 was
repealed in 1843. That of 1867 was repealed in 1878. That of 1898
is still in force.
Standard of Weights and Measures.
The authority given to congress to fix the standard of weights and
measures is another illustration of the powers which were deemed
proper to be confided to the national legislature for the sake of se-
curing uniformity and on account of their relations to trade and com-
merce. In the execution of this power, congress has provided a stand-
ard troy pound for the regulation of the coinage,'** passed a permis-
sive statute for the use of the metric system throughout the United
States,'** enacted a law defining and establishing the units of electrical
measure (the ohm, ampere, volt, coulomb, farad, etc.) in accordance
with the standards generally adopted by international agreement of
electricians,'** and established a bureau of standards, in the depart-
ment of commerce and labor, for the making, preservation, and supply
of standard instruments of measurement.'*^
s«s Ck>odall T. Tattle, 8 Blss. 219, Fed. Cas. No. 5,588. Bee ^'Bankruptcy,''
DaOL Diff, {Key Jfo.) ( 11; Cent. Dig. 1 11.
tcaDozier t. Wilson, 84 Ga. 801, 10 S. B. 748; Darling v. Berry (0. OL)
4 KcCrary, 470, 18 Fed. 659. See •'Bankruptcy,'' Dec Dig. (fey No.) ( 595;
Cent. Dig. t 656.
*•* Rev. St U. S. t 8548 (U. 8. Comp. St. 1901, p. 2370).
s«s Rev. St U. S. I 3569 (U. S. Comp. St 1901, p. 2877).
sf f Act Oonff. July 12, 1894, 28 Stat 101 (U. S. Comp. St 1901, p. 2881).
ser The duties of the bareau of standards, as defined In the act of March 8,
1901 (81 Stat 1449 [U. S. Comp. St 1901, p. 2383]), relate to the standardisa-
tion of weights and measures, the construction of standards, the testing and
calibration of measures, and the solution of problems in connection with stand-
ards ; and this for the benefit of the United States, any state or municipality,
or any scientiflc society, educational institution, firm, corporation, or indlYid-
ual within the United States engaged in manufacturing or other pursuits re-
quiring the use of standard measures.
262 THE POWERS OF CONGRESS. (Ch. 8
Punishment of Counterfeiting,
The power of congress to "provide for the punishment of counter-
feiting the securities and current coin of the United States" would
naturally flow, says Story, "as an incident from the antecedent powers
to borrow money and to regulate the coinage, and indeed, without it,
those powers would be without any adequate sanction." *•■ The "s^e-
curities". here mentioned might be extended so as to include all instru-
ments by which the rights and interests of the general government are
secured. But the context and the peculiar language used show that
the word is to be restricted to the evidences of indebtedness which the
United States may have issued in pursuance of its power to borrow
money. The bonds, treasury notes, certificates, and other written
promises issued by the United States are within the class to which the
term may properly be applied.** • Since the grant of a greater power
always includes the less, it is within the authority of congress to pro-
vide for the punishment, not only of making counterfeit coin, but also
of passing' counterfeit money, of having it in possession with intent
to pass it, and of bringing it into the United States with intent to
pass it.*^* Congress has provided severe laws against the counter-
feiting of the coin or notes of the United States, and against mutilat-
ing, scaling, or debasing the coinage, making such offenses crimes and
visiting them with heavy penalties.* ^^
But this power vested in congress does not preclude a state from
passing a law to punish the offense of circulating counterfeit coin of
the United States. While congress has exclusive authority to define
and punish the crime of making or producing counterfeit coin, the
states may validly enact laws against the passing or uttering of coun-
terfeits, or against having in possession tools or implements intended
for use in counterfeiting. The reason is that the former act is an
offense against the United States alone ; but the states have the right
lea 2 Story, Const, fi 1123. «•» Pom. Const Law, i 417.
aTo u. S. ▼. Marigold, 9 How. 560, 13 L. Ed. 257. "A counterfeit coin is one
made in imitation of some genuine coin. It is not necessary that the resem-
blance should be exact in all respects. The resemblance is sufficient if the
coins are so far alike that the counterfeit coin is calculated to deceive a per-
son exercising ordinary caution and observation In the usual transactions of
business, though the counterfeit would not deceive a person who was expert
or had particular experience in such matters." U. S. y. Hopkins (D. C.) 26
Fed. 443. See ^Vounterfeiting;' Deo. Dig. {Key No.) §§ 4, 9, U, U; Cent. Dig.
it P, H, i7. «i.
sTi Rev. St U. S. t 5457 (U. S. Comp. St 1901, p. 3683) et seq.
§ 105) BNUMBBATBU) POWURS OF CONGRESS. 263
to punish for the fraud and wrong done by one who knowingly im-
poses upon his fellow citizens with false and worthless imitations of
money.'^' And it has been held that the state courts, as well as the
federal courts, have jurisdiction to try persons charged with making
counterfeit money.* ^* Inasmuch as the general government is bound
to protect to other nations the rights secured to them by the law of
nations, congress also has the power to enact laws punishing the coun-
terfeiting of foreign securities.*^*
The Postal System.
Under the articles of confederation, congress was invested only
with the power of establishing and regulating post-offices ''from one
state to another" throughout the United States; and exacting such
postage on the papers passing through the same as might be requisite
to defray the expenses of the said office. The inadequacy of this pro-
vision was very apparent, and the larger grant of power in the consti-
tution was given because it was felt that the subject was national in
its character, and that it could be properly regulated only by a uni-
form and exclusive system. The words of the grant are awkward and
ill-defined. But they have been taken by common consent as intended
to invest congress with the exclusive control over the entire postal sys-
tem, with all its incidents and accessories. The power, as thus under-
stood, includes the organization of the post-office department^ the ap-
pointment of its numerous officers, the designation of the cities and
towns in which local post-offices shall be established, the providing of
suitable accommodations for the post-office in such places, either by
renting, buying, or building houses, the determination of the routes
over which the mails shall be carried, the making of contracts for
the transportation of the mails by railroads, steamboats, or other car-
riers, the purchase of the numerous supplies of every sort needed for
the business of the post-office, the manufacture of stamps, and the
definition and punishment of crimes which tend to defeat the operations
of the government under this power, or endanger the security of the
mails. Laws have been passed for the punishment of the crimes of rob-
«Tt State v. Brown, 2 Or. 221. See 'Counterfeiting,'* Dec Dig. (Key No.) ft
H; Cent. Dig. { S2.
srt Slzemore y. State, 8 Head (Tenn.) 26 ; People t. White, d4 Cal. 183. See
^'Counterfeiting;' Dec Dig. (Key No.) ft U; Cent. Dig. § ^^.
«T4 u. S. v. Arjona, 120 U. S. 479, 7 Sup. Ct 628, 30 L. Ed. 728; U. S. t.
White (a O.) 27 Fed. 200. Se0 ''Counterfeiting," Dec Dig. (Key No.) ft U;
Cent. Dig. | tl.
264 THB POWBRS OF CONORBS8. (Ch. 8
bing the mails, injuring or destroying mail matter, secreting or embez-
zling letters containing valuables, stealing or fraudulently obtaining
mail matter, receiving stolen articles from the mail, stealing post-office
property, injuring mail bags, stealing or forging mail locks or keys,
etc.*^* Also it is enacted that "any person who shall knowingly and
willfully obstruct or retard the passage of mail, or any carriage, horse,
driver, or carrier carrying the same, shall, for every such oflEense, be
punishable by a fine of not more than $100." *^*
It is also a part of the policy of the government with reference to
the postal system to establish a monopoly in the government in the
carriage of mail, and to prevent its transportation by private enter-
prise for hire. There can be no doubt of the constitutional validity
of acts of congress passed in furtherance of this purpose. "No gov-
ernment has ever organized a system of posts without securing to it-
self, to some extent, a monopoly of the carriage of letters and mailable
packets. The policy of such an exclusive system is a subject of legis-
lative, not of judicial, inquiry. But the monopoly of the government
is an optional, not an essential, part of its postal system. The mere
existence of a postal department of the government is not an establish-
ment of the monopoly. When it is legislatively established it may in-
clude one or more without embracing all of the subjects of the gov-
ernment's postal arrangements. The business of private carriers of
letters and mailable packets, even on principal mail routes, is lawful
unless legislatively prohibited." *''''
The interpretation of the word "establish" in this grant of power
has given rise to serious debates, the question being whether the au-
thority of congress was limited to selecting existing highways or roads
as the routes for the carriage of the mails, or whether it included power
to build, or assist in the building of, highways and railroads to be used
in the administration of the postal system. The discussion of this
question would be too extensive for our present limits, and we shall be
17 6 Rev. St U. S. a 5466-5480 (U. S. Comp. St 1901, pp. 3681-368Q. See
United States v. Bullington (C. C) 170 Fed. 121.
2T6 Rev. St. U. S. § 3995 (U. S. CJomp. St 1901, j[). 2716). A 8tat« statute
which unnecessarily interferes with the speedy and nnintermpted carriage of
the United States mails cannot be considered a reasonable police regulation.
lUionis Cent. R. Co. v. Illinois, 163 U. S. 142, 16 Sup. Ct. 1096, 41 L. Ed. 107.
See '*Po8t Offloe:' Dec. Dig, (Key No,) §{ 27-SS; Cent. Dig. §§ 45-90.
S7r u. S. y. Kochersperger, 9 Am. Law Reg. 145, Fed. Cas. No. 15,54L See
"Po9t Office,'' Dec Dig. {Key No.) |{ i, 20, 29; Cent. Dig. || i, 26, 49.
B 106) BNUMBBATBD P0WBB8 OF CONGRB8S. 265
content with referring the reader to some of the principal authori-
ties."*
By an act of congress^ ''the following are established post-roads:
All the waters of the United States during the time the mail is carried
therecMi. All railroads or parts of railroads which are now or here-
after may be in operation. All canals, during the time the mail is car-
ried thereon. All plank roads, during the time the mail is carried
thereon. The road on which the mail is carried to supply any court-
house which may be without a mail, and the road on which the mail is
carried under contract made by the postmaster general for extending
the line of posts to supply mail to post-offices not on any established
route, during the time such mail is carried thereon. All letter-carrier
routes established in any city or town for the collection and delivery
of mail matters." '^* When a part of an established route is found to
be impracticable, by reason of being almost or quite impassable, the
post-office department may change that part without thereby creating
a new route not authorized by law.**^ It is also held that the control
of congress over the mails gives it a right to decide what matters shall
be carried in the mails. And this right necessarily involves the right
to determine what classes of matter shall be considered unmailable.
Hence the act of congress prohibiting the use of the mails for the
dissemination of advertisements or other papers relating to lotteries
is within the power of that body and is not unconstitutional. And the
same reasoning and conclusion apply to the statute which forbids the
depositing in the mails of any obscene or indecent matter.*** And un-
der the same authority, the government has made it a punishable of-
fense to use the mails for the purpose of defrauding others.***
ST9 See 2 Story, Const. f§ 1128-1160; 1 Kent. Oonim. 267; U. S. v. Kocher-
■perger, 9 Am. Law Reg. 145, Fed. Ca«. No. 15,541. See "Post Ofjtoe,** Dec, Dig.
{Key No,) | 29; Cent, Dig, § 49.
«T» Rer. St. U. S. § 8064 (TI. S. Gomp. St. 1901, p. 2707). As to letter-carrier
routes, see Blackbam t. Gresham (C. C.) 16 Fed. 609 ; U. S. ▼. Basson (D. C.)
18 Fed. 590. See *'P08i Officer Dec. Dig. (Key No.) (29; Cent. Dig. | 49.
sso U. S. T. Barlow, 182 U. S. 271, 10 Sap. Gt 77» 88 L. Ed. 846. See **Po8t
Offlee,"* Dec. Dig. (Key No.) ( 21; Cent. Dig. t 27.
sti Ex parte Jadnon, 96 U. S. 727, 24 L. Ed. 877; In re Rapier, 143 U. S.
110, 12 Snp. Gt 874, 86 L. Ed. 98 ; U. S. v. Bennett, 16 Blatchf . 888^ Fed. Gas.
No. 14,571 ; Knowles y. U. S., 170 Fed. 409, 95 G. G. A. 579. See "Poet Office,**
Dec, Dig. (Key No.) |§ i, U, Si; Cent. Dig, |§ i, 21, 54.
«•« U. 8. T. Wootten (D. G.) 29 Fed. 702 ; Grey y. U. S. (G. a A.) 172 Fed,
101; McOonkey y. U. S. (G. a A.) 171 Fed. 829. On the question whether the
right to UM the maUa Is a property right or a statutory prlyilege, and as to
266 THB POWBBS OF CONORBSS. (Ch. 8
Copyrights and Patents.
By the common law, an author has a right of property in his lit-
erary productions so long as he has not given them to the world, and
he may restrain the publication of any of his literary work which he
has never published or dedicated to the public, or recover damages for
its unauthorized publication.*** But the exclusive right to print, pub-
lish, and sell his works can be secured only by a copyright imder the
laws of the United States; and if he publishes anything without so
protecting it, it becomes public property, and any person may repub-
lish it.*** The control of congress over the copyright system is com-
plete; it is subject to no restriction except that the grant of exclusive
privileges to authors shall be only for a "limited time," and that its
laws must be designed and calculated to "promote the progress of
science and useful arts." The benefits of the copyright laws were at
first restricted to citizens of the United States. But by the act now
in force,**' they are extended equally to foreigners, provided that their
country accords a like reciprocity to American citizens and provided
that the books to be protected must be printed from type set or plates
made in this country.
The power of congress to make laws on the subject of patents is
equally extensive with that over copyrights, and subject to the same
and no other restrictions. It may pass general laws, applicable to all
inventors who come within their terms, or it may enact a special law
granting a patent to the heirs of an inventor,*** or it may grant a
the power of congress to invest the postmaster general with authority to issue
what are caUed "fraud orders," that is, to deny the prlvUege of the mails to
persons who are found to be engaged in the use thereof to conduct fraudulent
schemes or lotteries or to sell goods by false pretenses, see Missouri Drug Co.
r. Wyman (G. C.) 129 Fed. 623 ; American School of Magnetic Healing y. Me-
Annulty (C. O.) 102 Fed. 565; Hoover v. McCJhesney (C. C.) 81 Fed. 472; Ken-
nedy V. Dr. David Kennedy Corp., 32 Mlsa Rep. 480, 66 N. T. Supp. 225 ; Put-
nam V. Morgan (C. a) 172 Fed. 450. Bee **Po8t Office,** Dec. Dig. (Key No.)
t 35; Cent. Dig. ft 55.
2»« Mmar V. Taylor, 4 Burrows, 2808; Wheaton v. Peters, 8 Pet 591, 8 L.
Bd. 1055; Clemens v. Belford (C. 0.) 14 Fed. 728; Press Pub. Co. v. Monroe,
19 C. C. A. 429, 73 Fed. 196, 51 L. R. A. 853. See ^'Copyrights,** Dec Dig. {Key
No.) §ft 1-50; Cent. Dig. §§ 1-49.
t»* Clemens v. Belford (C. C.) 14 Fed. 728. See **Oopynght9** Deo. Dig. {Key
yo.) t 40; Cent. Dig. ft 55.
2te 26 Stat. 1106 (Act March 3, 1891 [U. S. Comp. St 1901, p. 8406]).
tse Fire Extinguisher Manufg Co. v. Graham (C. C.) 16 Fed. 543. See **Pat'
ents,** Dec Dig. (Key No.) {§ IS; Cent. Dig. fft IS, U, 41, 54.
§ 105) ENUMERATED POWERS OF CONGRESS. 267
patent to an inventor even though his invention is at the time publicly
known, or grant an extension of a patent which has already expired.'*^
The right of property created by a patent for an invention is not sub-
ject to the interference or control of the states. "If the laws of con-
gress on the subject of patents were repealed, there would not exist
any right to a patent; or, in other words, the inventor would not have
any enforceable right of property in his invention or the fruits there-
of. This right of property is created by the acts of congress, and
state legislation does not deal therewith. Thus it is clear that the
state legislature could not enact that none of its citizens should ap-
ply for and obtain a patent, unless he should apply for the same within
six months, or any other time; and the right to protect the right of
property created by the patent laws, by bringing an action at law or
in equity, conferred by the act of congress, cannot be limited or affect-
ed by state legislation." *•• But letters patent granted by the United
States do not exclude from the operation of the tax or license laws of
a state the tangible property in which the invention or discovery is
embodied.'** And the states may make police regulations, relating
to the sale and transfer of patented articles or patent rights, or even
prohibiting the manufacture and sale of such articles, if the same shall
be deemed injurious to the safety, health, or morals of the communi-
ty.*** The government of the United States has no right to use a
patented invention without compensation to the owner of the pat-
ent."*
The power here vested in congress gives it no authority to legislate
for the protection of trade marks (a trade mark being neither an in-
vention, a discovery, nor a writing, within the meaning of this clause
of the constitution) except in so far as such legislation may be lim-
asr Jordan ▼. Dobson, 4 Fish. Pat Cas. 232, Fed. Cas. No. 7,519; Eyans v.
Jordan, 1 Brock. 248, Fed. Cas. No. 4,564. See ''Patents,** Deo, Dig. (Key No.)
H i-9; Cent, Dig. §§ 1-5, U, H, 54.
«•« May Y. Buchanan County (C. C.) 29 Fed. 460. 8ee "Courts,** Dec. Dig.
(Keu yo.) %% S59, 575/ Cent. Dig. U 9S9, 983; ''Patents,** Dec Dig. (Key No.)
H 220-225; Cent. Dig. If SoOSSB.
««• Webber v. Virginia, 103 U. S. 344, 26 L. Ed. 565. See "Commerce,** Dec
Dig. (Key No.) H 6i, 66; Cent. Dig. %% 106, 111.
s»o Patterson y. Kentucky, 97 U. S. 501, 24 L. Bd. 1115; In re Brosnahan (C.
C.) 18 Fed. 62 ; People y. Russell, 49 Mich. 617, 14 N. W. 568, 43 Am. Rep. 478.
See **Patents,** Dec Dig. (Key No.) H 220-225; Cent. Dig. S| S50-S56.
s»i James ▼. Campbell, 104 U. S. 356, 26 L. Ed. 786. See "United States,**
Dec Dig. (Key No.) ^ 91; Cent. Dig. 8 16; "Patents;* Cent. Dig. % 266.
268 THB P0WBB8 OF CONGRB88. (Ch. 8
ited to the use of trade marks in foreign and interstate commerce.***
But congress has power to extend the benefit of the copyright law to
the author, inventor, designer, or proprietor of a photograph, so far
as it is a representation of original intellectual conceptions.***
Establishment of Courts.
The power of congress to establish tribunals inferior to the supreme
court has already been fully considered in connection with the subject
of federal jurisdiction. Reference should here be made to the chap-
ter dealing with that topic.
Definition and Punishment of Piracies.
The propriety, and even necessity, of confiding to congress alone
the power to define and punish piracies and felonies committed on the
high seas is to be deduced from the fact that the general government
(and not the individual states) is the power which has control of our
foreign relations, and to which other nations must look for co-operation
in enforcing the rules of international law, as well as for the redress
of injuries committed against that law. "Piracy is an assault upon
vessels navigated on the high seas, committed animo furandi, wheth-
er the robbery or forcible depredation be effected or not, and whether
or not it be accompanied by murder or personal injury. If a ship
belonging to an independent nation, and not a professed buccaneer,
practices such conduct on the high seas, she is liable to the pains and
penalties of piracy." *** Pirates may lawfully be captured on the
ocean by the public or private ships of any nation, and this in time
of peace as well as during a war; for they are the common enemies
of all mankind, and, as such, are liable to the extreme rights of war.***
But it should be noted that piracy according to the law of nations may
mean one thing, and piracy according to the municipal law of a par-
ticular country another thing. Any nation may declare that certain
acts shall be piracies (as against her laws) which would not be so by
international law. This power to enlarge the scope of this crime has
been given by the constitution to congress, and congress has exercised
a»2 Trade-Mark Cases, 100 U. S. 82, 2S L. Ed. 550 ; 21 Stat. 502 (U. S. Comp.
St 1901, p. 3401). Bee "Commerce," Dec. Dig. (Key No.) | 42; Cent. Dig. i 28.
a*« Burrow-Giles Lithographic Co. y. Sarony, 111 U. S. 53, 4 Sup. Ct 279,
28 L. Ed. 349. See "Copyrights," Deo. Dig. {Key No.) 19; Cent. Dig. | 7.
2*4 1 Phillim. Int. Law, 379. "Piracy Is robbery or a forcible depredation on
the high seas, committed without lawful authority, and done anlmo furandi,
and In the spirit and intention of universal hostility." 1 Kent, Comm. 183.
2»8 The Marlanna Flora, 11 Wheat 1, 6 L. Ed. 405. See "Piracy," Dec Dig.
{Key No.) { i; Cent. Dig. 8 1.
5 105) BNUMBBATBD POWBB8 OF CONGBE88. 269
the power. It has not only made piracy according to the law of na-
tions a crime against the United States, but has also included in the
crime of piracy several things which would not be included by in-
ternational law. The acts of congress declare, in the first place, that
"every person who, on the high seas, commits the crime of piracy as
defined by the law of nations, and is afterwards brought into or found
within the United States, shall suffer death." Then follows a more
particular description of numerous acts which are to be deemed piracy,
such as robbery on the high seas, or on shore by the crew of a piratical
vessel, murder on the high seas, any act of hostility against the United
States or against any citizen thereof under color of a commission from
a foreign prince or state, and the slave trade.*** The slave trade is
not piracy by the law of nations.**^ But as congress has the power not
merely to punish piracy, but also to define it, it is entirely competent
for congress to enact that the traffic in slaves shall be deemed piracy
and punished accordingly, as many other nations have done. But the
federal courts have no jurisdiction of a murder committed by one for-
eigner on another foreigner, both being on board a foreign vessel.***
The term "high seas," as here used, means tide waters, below low
water mark, which are without the territorial limits of the country, ex-
cluding those portions of the sea which lie infra fauces terrae, such
as tidal rivers, bays, basins, harbors, roadsteads, and the like.***
This clause of the constitution also gives congress power to define
and punish offenses against the law of nations. Illustrations of the
exercise of this power are to be found in the "neutrality laws," which
forbid the fitting out and equipping of armed vessels, or the enlisting
of troops, for either of two belligerent powers with which the United
States is at peace; and again, in the laws which prohibit the organ-
izing within the country of armed expeditions against friendly na-
tions.***
War Powers — Power to Declare War.
The constitution confers upon congress the power to "declare war."
This is the formal method of inaugurating hostilities against a for-
*•• Rev. St. U. S. |§ 5368-5382 (U. S. Comp. St. 1901, pp. 3642-^647).
'•T The Le Louis, 2 Dod. 210; The Antelope, 10 Wheat 66, 6 L. Ed. 268.
See "flri«t?e«," Dee. Dig, {Key No.) 12; Cent, Dig. | 5.
*•• U. S. y. Furlong, 5 Wheat. 184, 5 L. Ed. 64. See '*CrinUnal Law,"* Dec
Dig, (Key No.) ^ 97; Cent. Dig. i 185,
>•• U. 8. ▼. Gruah, 6 Mason, 290, Fed. Gas. No. 15,268; U. S. y. Ross, 1 Gall.
624. Fed. Cas. No. 16,196. See *Vrim4nal Law;* Dec, Dig. (Key No.) { 97;
Cent. Dig. | 184.
>•• Pool Const Law, I 428.
270 THE POWERS OP CONORESS. (Ch. 8
eign nation. But a war may be commenced, prosecuted, and termi-
nated without any actual declaration of war by either of the bellig-
erents.*®^ And therefore congress also has the authority, instead of
formally declaring war, to recognize the existence of actual hostilities
and declare that a war in fact exists. The power to declare war nec-
essarily includes the authority to prosecute the war, and make it ef-
fective, by all and any means, and in every manner, known to and ex-
ercised by any independent nation under the rules and laws of war
as the same are ascertained by the principles of international law. For
instance, the property of aliens found in the United States, at the com-
mencement of hostilities with a foreign power, may be condemned as
enemies' property and confiscated ; but not without a legislative act au-
thorizing its confiscation, and an act of congress declaring war is not
such an act.*®* Contracts entered into during the late war between
parties, the one residing within the military lines of the United States
and the other within the Confederate lines of military occupation, are
absolutely void, and no action could be maintained to enforce them.'®*
Same — Army and Navy.
The constitution provides that congress shall have power to "raise
and support armies, but no appropriation of money to that use shall
be for a longer term than two years," and also to "provide and main-
tain a navy." This clause of the constitution was bitterly opposed
in the states before the adoption of the instrument. This opposition
sprang from the jealousies of the states and from the extreme ap-
prehension lest the grant of such a power might be the means of
putting the whole country under a military domination or the rule
of a standing army, and so imperiling or destroying the rights and
securities of private persons. The influence of these fears is seen
in the peculiar way in which the war powers were limited and dis-
tributed in the constitution as it stands. The President is the com-
801 The EHiza Ann, 1 Dod. 244. A state of actual war may exist without
any formal declaration of it by either party ; and this is true of both a civil
and a foreign war. Prize Cases, 2 Black, 685, 17 L. EXL 459. No formal dec-
laration of war by congress, nor proclamation by the President, is necessary to
define and characterize an Indian war. It is sufficient that hostilities exist
and military operations are carried on. Marks v. U. S., 28 Ct CI. 147. See
*'Wwrr Dec. Dig. (Key No.) |§ 1-9; Cent. Dig. §{ 1-25.
«oa Brown v. U. S., 8 Cranch, 110, 3 L. Ed. 504. See **War,** Dec. Dig. (Key
2fo.) U i2. iS; Cent. Dig. U 42-56.
«o8 Noblom V. Milbome, 21 La. Ann. 641. See ^'War," Dec, Dig. (Key No.)
i 10; Cent. Dig. §§ 26-S6.
S 106) BNUMBBATBD FOWBRS OF CONGRESS. 271
mander io chief. But congress is to raise and support the armies and
appropriate what may be necessary for their maintenance. There can
therefore be no danger that the executive might maintain a standing
army of greater numbers or for a longer time than should seem to the
people's representatives in congress to be consistent with the safety
and good government of the country. But not even congress is wholly
trusted in this respect. For no such appropriations shall be for a longer
term than two years. It is therefore always in the power of the people
themselves, at every change in the house of representatives, to dictate
the policy of the government in regard to the army and its maintenance.
Congress is invested with power to "raise" armies. The means or
methods of so doing are not prescribed, and therefore the natural in-
ference is that the federal authorities may resort to any and all means
of raising troops which the exigencies of the particular occasion may
seem to require, or to such general plans as shall seem to them to be
sufficient and eflfective. Congress may undoubtedly provide for the
voluntary enlistment of men into the regular army of the United States,
prescribing their term of service and all other matters relating to the
duties and engagement of the enlisted man.'®* If it shall seem neces-
sary or proper, the same body may offer inducements, such as bounties
or pensions, to enter the military service. In time of war, especially
if it is of serious magnitude, the method of replenishing the ranks of
the army by voluntary enlistments will generally be found insuffi-
cient In that event, congress, under the general power to raise armies,
unlimited as we have said in respect to the means, may resort to
conscription or a draft. This was done during the late civil war, and
though the validity of the draft laws was sometimes questioned, it
was never authoritatively denied.'*' The power to raise armies also
includes the right to determine the number of men who shall compose
the army, and the method of their apportionment to the different arms
of the service, and their organization into divisions, brigades, regi-
ments, and companies. No limitation is found in the constitution as to
•♦4 In re Grlmley, 137 U. S. 147, 11 Sup. Ct. 54, 34 L. Ed. 636. See "Army
and Navy," Dec. Dig. (Key No.) H i, 18; Cent. Dig. S| i, 4M4.
80S The practice of Impressing seafaring men for service in the English navy
was recognized as permissible at common law, and was valid and legal pro-
vided the persons impressed were proper objects of the law, and those em-
ployed in the service were armed with a proper warrant Rex v. Broadfoot,
18 How. St Tr. 1323 ; Ex parte Fox, 5 Durn. & E. 276. No such practice is
permissible in this country. See **Army and Nai^y,'* Dec, Dig. (Key No.) S 20;
Cen$. Dig. U 51-61.
272 THB POWBB8 OF CONOBB88. (Ch. 8
either the number of the forces or the age or qualification of the men.
This is left entirely to the wisdom and discretion of congress.
The power to "support" the army is equally general in its terms. It
authorizes the appropriation and expenditure of money by congress,
not only for the pay, transportation, rations, and clothing of the troops^
but also for the purchase or manufacture of arms and ammunition, for
the maintenance of a medical corps, for the construction and mainte-
nance of forts, arsenals, barracks, and fortifications of all kinds, and
for the establishment and maintenance of schools for the instruction
and training of officers or of those who are destined to become officers.
It has also been thought to justify the construction of military roads,
or the creation or purchase of facilities for the rapid mobilization and
transportation of troops in case of need. Under this power also con-
gress has created and maintains the department of war, and that of
the navy, with all their numerous retinue of officers and clerks, and
their varied and important duties and functions.
Same — Government of the Forces.
The power of congress to "make rules for the government and regu-
lation of the land and naval forces" gives it the authority to ordain
and establish what is called military law, that is, a system of general
orders and regulations for the organization, discipline, and government
of the army and navy. This includes the power to define offenses
against the military law and against the good order and government of
the forces, and to provide for the trial of such offenses by courts-
martial, and to prescribe the punishments to be inflicted. Proceed-
ings in such courts are not required to be commenced by indictment ;
for the fifth amendment excepts from its provisions "cases arising
in the land and naval forces or in the militia when in actual service."
Same — The Militia,
Congress has power to "provide for calling forth the militia to ex-
ecute the laws of the Union, suppress insurrections, and repel inva-
sions." It may also "provide for organizing, arming, and disciplin-
ing the militia, and for governing such part of them as may be em-
ployed in the service of the United States, reserving to the states re-
spectively the appointment of the officers and the authority of training
the militia according to the discipline prescribed by congress." It will
be perceived that there are no militia of the United States here pro-
vided for, and that the militia of the states are left very much to the
government and control of their respective states. Congress may in-
deed call forth the militia, but only for specified purposes and under
§ 105) BNUMBRATBD POWERS OF CONOBE88. 273
certain conditions. They may be enrolled in the service of the United
States, and so become subject to the general military law, but only
for the purposes mentioned, and even then the appointment of the of-
ficers is left to the states. Congress may provide for the organization
and discipline of the militia. But if congress does not provide a gen-
eral system for this purpose, it remains competent for the individual
states to take such action in regard to the organization and governance
of their militia as they shall deem best. And even when congress has
prescribed a discipline, the authority of training the militia in accord-
ance therewith remains in the states. The power over the militia thus
reserved to the states is so complete that a state may, unless restrained
by its own constitution, enact laws to prevent any body of men what-
ever, other than the regular militia of the state and the military forces
of the United States, from associating themselves together as a mili-
tary company or organization, or drilling or parading with arms within
the state, unless with the governor's consent.*®* But when the militia
force is actually employed in the service of the United States, it is
subject to the control of congress in all particulars the same as the
regular army. Thus the officers, though appointed by the states, are
subject, in this case, not only to the orders of the President as com-
mander in chief, but also to those of any officer outranking their own
who may, under the authority of the President, be placed over them.
Congress may provide for calling forth the militia. And this is held
to give congress the power to confer the power of calling them forth,
under certain circumstances, on the President, as was done by the act
of 1795, which is still in force.*®^ The militia cannot be called forth
to do service out of the limits of the United States. For the laws of
the Union can be executed only on its own soil, and there can be no in-
vasion or insurrection beyond those limits. But it is now agreed that
sot Preeser t. lUinols, 116 U. S. 252, 6 Sop. Ct. 580, 29 L. EcL 615. See ''MiH-
«<a.- Dec. Dig, {Key No.) |§ 1, 2; Cent. Dig. \\ 1, 2.
•07 Martin y. Mott, 12 Wheat. 19, 6 L. Ed. 537 ; In re Griner, 16 Wis. 423.
These doctriDes were not always admitted hy the statea Thus, In 8 Mass.
548, we find an opinion of the supreme court of that state to the effect that
the commanders In chief of the militia of the several states have the right to
determine whether any of the exigencies contemplated by the federal con-
stitution exist, so as to require them to place the mlUtia or any part of them
in the service of the United States at the request of the President, to be
commanded by him pursuant to the acts of congress ; and that, when such exi-
gency' exists, the militia so employed cannot be commanded by any other offi-
cers than their own, save only the President Se9 **Army an4 ifavy," Dec.
Dig. (Key No.) ^ 20; Cent. Dig. | 62.
Bl.Const.L.(8d.Ed.) — 18
274 THB POWBR8 OF C0NORE88. (Ch. 8
there is nothing to prevent the militia, when duly called forth on a
proper occasion, from being sent outside of their own states in the
service of the general government. A state may lawfully provide that
persons belonging to the militia and called forth under the authority
of the United States, who neglect or refuse to obey the call, shall be
tried by a state court-martial and punished according to state laws.***
Same — Letters of Marque.
A letter of marque is a commission given to a private ship by a
government to make reprisals on the ships of another government.
The power to grant letters of marque is incidental and implied in the
power to declare war. But it is also sometimes resorted to, not as a
measure of hostility, but rather as a peace measure, and is intended
to prevent the necessity of other or more extreme acts of hostility. It
was therefore properly specified as one of the enumerated powers of
congress, instead of being left to be inferred from the more general
grant of authority to declare war. In 1857, at the close of the Crimean
war, the congress of plenipotentiaries from the powers which had been
engaged in the conflict issued what was called the "Declaration of Par-
is," prescribing certain rules as to the conduct of war and the protec-
tion of neutrals and their property. The first article of this declara-
tion is : "Privateering is and remains abolished." To this declaration
most of the great European powers have, subscribed, accepting its
terms as a part of the international law by which they are to be gov-
erned. But the United States has never given its adherence. And it
is a serious question whether it would be within the power of congress,
or of the President and senate by treaty, to accede to this declaration.
For that would amount to a deliberate surrender of a portion of the
power confided to congress by the constitution. Whether it could be
placed forever in abeyance, so that no future congress could exercise
the right to commission privateers, without an amendment to the con-
stitution, is at least very doubtful.
Government of Ceded Districts.
Soon after the formation of the federal government, the cession of
territory, to constitute the seat of government, contemplated by this
clause of the constitution, was made by the states of Maryland and
Virginia. The tract thus acquired by the national government was at
first called the "Territory of Columbia," but afterwards received the
»•• Houston ▼. Moore, 6 Wbeat 1, 5 U Ed. 19. 8€€ **Arm^ and JTavy," Dee.
Dig. (Key No.) i 44; Cent. Dig. { 91.
§105} BNUMBRATBD POWERS OF CONQRE88. 275
name which it now "bears, "The District of Columbia." The portion
granted by Virginia was afterwards retroceded to that state by the
United States, so that the District, as at present constituted, lies wholly
within the exterior boundaries of the original state of Maryland. For /
some time the District was under a territorial form of government, but /
this was afterwards abolished, and it is now only a municipal corpora- f
tion.'** The local laws of the two states making the cession, exists
ing at that time, were held to remain in force in so far as they affected
rights of property, and until they were changed by congress.'** But
congress has now covered almost the entire field of civil and criminal
legislation, by statutes enacted expressly for the District, and but
small traces of the original laws of Maryland now remain in force.
Since the constitution invests congress with the exclusive power of
legislation for this District, evidently intending that it shotdd act as
the local legislature of the District, it has been very seriously questioned
whether it was within its lawful power to delegate this authority by
the creation of a territorial government, or whether it could ever again
lawfully erect a law-making body for the District, at least to the ex-
tent of granting to it general legislative authority.*** It will be per-
ceived that, in respect to the District of Columbia, congress is invested
with a double measure of power. The District is a part of the United
States, and consequently all acts of congress which it has the power
to ordain, as legislating for the United States, have force, so far as
they are applicable, in the District. But the power of exclusive legis-
lation over this territory also invests the national legislature with all
the authority to make local rules and regulations which is possessed
by the legislature of a state in respect to its own citizens. It must
not be supposed, however, that in dealing with the District, congress
is restricted in the same manner as the legislature of a state. For ex-
ample, the power of "exclusive legislation" includes the power to tax.
But it is not to be supposed that congress, in laying taxes in the Dis-
trict of Columbia, is territorially restricted as is the legislature of a
state. That is, to justify such taxation, it is not required to be for dis-
•0* Metropolitan R. Go. ▼. District of Columbia, 182 U. S. 1, 10 Sop. Ct 10,
88 L. Ed. 231. See **Di8trict of Colifm&to,'* Dec. Dig. (Key No.) ^ t; Cent.
Di0.%2.
»i«Tlmw T. RitcUe, 136 U. & 619, 10 Sap. Gt 1037, 84 L. Ed. 681. See •"DU-
triet of Columbia/* Dee. Dig. (Key No.) |i i, S; Cent. Dig. H i, 5; **GuardiQn
and Ward:' Dec Dig. {Key No.) | Bl; Cent. Dig. | 3SS.
•11 Roach ▼. Van Riswick, McArthur k Mackey (D. G.) 171. Bee **DUtrici
of Columbia^ Dee. Dig. {Key No.) { 8; Cent. Dig. | S.
276 THE P0WBR8 OF CONGRESS. (Ch. 8
trict purposes only, but may be for any or all of the purposes lor
which congress may lawfully exercise the power of taxation. In other
words, the general power of congress to lay and collect taxes extends
to all places over which the government of the United States extends,
and to the District of Columbia and all the territories, as well as to
the organized states, and consequently direct taxes may be appor-
tioned among the territories and the District, as well as among the
several states.'** And as the United States possesses not only polit-
ical, but also municipal, authority over the District, it has the right
to condemn lands lying within the District for a public park.***
After the cession of territory by a state to the United States, the
municipal laws of the state governing property and property rights
continue in force in the ceded territory, except so far as they may
conflict with the laws and regulations of the United States applicable
thereto ; but the criminal laws of the state cease to be of force within
the ceded district. "After a state has parted with its political juris-
diction over a given tract of land, it cannot be said that acts done
thereon are against the peace and dignity of the state, or are viola-
tions of its laws; and the state certainly cannot claim jurisdiction crim-
inally by reason of acts done at places beyond, or not within, its ter-
ritorial jurisdiction, unless by treaty or statute it may have retained ju-
risdiction over its own citizens, and even then the jurisdiction is only
over the person as a citizen." *** But this provision of the constitu-
tion does not apply to land ceded by a state, but not purchased by the
United States. The state, in such case, while granting exclusive juris-
diction, may reserve the right to tax private property within the dis-
trict ceded.***
»is Loughborough ▼. Blake, 5 Wheat. 817, 5 L. Ed. 98. See, also, Ck>hen v.
Virginia, 6 Wheat 264. 424. 6 L. Ed. 257 ; 2 Story. Const | 122a Bee ''Dis-
trict of ColunMa,*' Dec. Dig. (Key No.) SS 5, 4» SS; Cent. Dig. || 5, 4, 20.
»i8 Shoemaker v. U. S., 147 U. S. 282, 13 Sup. Ot. 361, 37 L. Ed. 170. Bee
'^District of Columbia,** Dec. Dig. (Key No.) | i; Cent, Dig. ^ 1; **Eininent Do-
main,** Dec. Dig. (Key No.) 15; Cent, Dig. S 21.
si« In re Ladd (C. C.) 74 Fed. 31. And see United States ▼. San Francisco
Bridge Co. (D. C.) 88 Fed. 891 ; McCarthy v. R. G. Packard Co., 182 N. X. 555.
75 N. E. 1130 ; Madden v. Arnold, 162 N. Y. 638. 57 N. E. 1116 ; State y. Mack.
23 Nev. 359, 47 Pac. 763, 62 Am. St Rep, 811. Bee ^'Criminal Law,** Dec. Dig.
{Key No.) $ 97; Cetit. Dig. | 189; **United Btates,** Dec. Dig. (Key No.) | S;
Cent. Dig. | S. I
810 Where the United States acquires lands within the limits of a state by
purchase, with the consent of the legislature, for the erection of forts, dock-
yards^ arsenals, etc., the constitution confers upon the general government
5 105) BNUMBRATED POWERS OF CONGRESS. 277
As to the limitations upon the power of congress in legislating for
the District of Columbia and other ceded places, they must be sought
alone in the constitution ; there are no others. And these limitations,
so far as concerns private and political rights, are found in the first
eight and the last three amendments to the constitution. The provi-
sions guarantying trial by jury, for instance, are applicable to the
District and cannot be violated by congress.***
Acquisition of Territory,
The power of congress to acquire new territory, either by conquest,
purchase, or annexation, was much debated at the time of the ac-
quisition of Louisiana from France, in 1803, and in a less degree in
connection with the purchase of Florida and of Alaska. It has now
come to be recognized and established, rather by precedent and the
general acquiescence of the people, than by any strict constitutional
justification. In fact, the power cannot be derived from any narrow or
ezdnslve Jurisdiction of tlie tract so acquired. But when It acquires sudi
lands in any other way than by purchase with the legislatiye consent, the ex-
clnsiye jurisdiction of the United States is confined to the land and buildings
used for the public purposes of the general goyemment. A state may, for such
purposes, cede to the United States ezclusiye Jurisdiction over a tract of land
within its limits in a manner not proyided for in the constitution, and it may
prescribe conditions to the cession, If they are not inconsistent with the efTec-
tiye use of the property for the purposes Intended. And If a state thus ced-
ing to the Ulnted States exclusive Jurisdiction over a tract within its limits,
reseryes to itself the right to tax priyate property therein, the acceptance of
the grant, without dissent by the United States, will Imply its consent to the
reservation. Ft. Leavenworth R. Ck>. v. Lowe, 114 U. S. 525, 5 Sup. Ct 995, 29
L. Ed. 264 ; Chicago, R. I. ft P. Ry. Ca v. McOlinn, 114 U. S. 542, 5 Sup. Gt
10C5, 29 L. Ed. 270; Benson v. U. S., 146 U. S. 325, 13 Sup. Ot 60, 36 L. Ed.
991 ; Palmer v. Barrett, 162 U. S. 899, 16 Sup. Ct 837, 40 L. Ed. 1015 ; In re
Kelly (a C.) 71 Fed. 545 ; United States v. Holt (C. C.) 168 Fed. 141 ; Pundt v.
Pendleton (D. C) 167 Fed. 997; Western Union Tel. Co. v. Chiles, 214 U. 8.
274, 29 Sup. Ct 613, 53 L. Ed. 994. Bee "United BtateB,'' Dec. Dig. (Key No,)
I S; Cent, Dig. S S.
»!• Callan v. WUson, 127 U. S. 540, 8 Sup. Ot 1801, 82 L. Ed. 228. While
the fourteenth amendment does not purport to ext^id to authority exercised
by the United States, congress, in legislating for the District of Columbia,
may not deny to its residents the equal protection of the laws; but aU of
the constitutional guaranties of life, liberty, and property are equally for the
benefit of citizens of the United States residing permanently or temporarily
in the District as for those residing in the several states. Lappln v. District
of Columbia, 22 App. D. a 6a See ''Jury,*' Deo. Dig. (Key ifo,) i 11; Cent.
Dig. i Zl.
278 THE POWERS OF CONGRESS. (Ch. 8
technical interpretation of the constitution. But it is necessary to rec-
ognize the fact that there is in this country a national sovereignty.
That being conceded, it easily follows that the right to acquire terri-
tory is incidental to this sovereignty. It is, in effect, a resulting pow-
er, growing necessarily out of the aggregate of powers delegated to the
national government by the constitution. And if a more positive jus-
tification is needed, it may be said that whereas congress has power to
make war, it has also the power to acquire territory by conquest ; and
that since the President and senate possess the power to make treaties
with foreign nations, this may be understood as including the right
to deal, by treaty, with all the subjects which come within the scope of
the negotiations of independent sovereignties.*^^
Disposition of Public Lands.
Over all the public lands of the United States congress exercises
not merely jurisdiction, but also the rights of a proprietor. And un-
der the grant of power to dispose of the territory of the United States,
congress may dispose of the public lands as it may see fit. An elab-
orate system for the survey and sale of the public lands has been de-
vised, and an important bureau of the Department of the Interior is
charged with the administration of the laws relating thereto. Congress
has passed numerous acts for the disposition of the public domain to
actual settlers and purchasers. And it has also, at different times, made
extensive grants to railroads or other works of internal improvement
on a large scale, as also to educational institutions, and in some cases
to the various states. All such acts are unquestionably within the au-
thority of congress, as it possesses the jus disponendi of these lands.***
Government of the Territories,
The general and plenary control of congress over the territories
arises not merely from the grant of power in the constitution to make
»iT De Lima v. Bidwell, 182 U. S. 1, 21 Sup. Ct. 743. 45 L. Ed. 1041; Dorr
T. United States. 195 U. S. 138, 24 Sup. Ot. 808, 49 L. Ed. 128; Goetze t.
United States (C. O.) 103 Fed. 72; Jones y. United States, 137 U. S. 202. 11
Sup. Ot 80, 34 L. Ed, 691 ; American Ins. Ck). v. Canter, 1 Pet. 511, 542, 7 L.
Ed. 242. See ''Territories," Dec. Dig. (Key No.) §§ 4, 5; Cent. Dig. S| 2, S.
ai« U. S. Y. Gratiot, 14 Pet. 526, 10 L. Ed. 573; Shively v. Bowlby, 152 U. S.
1, 14 Sup. Gt 548, 38 L. Ed. 331. The treaty-making power of the United
States has authority to dispose of the public domain (as by treaty with an
Indian tribe) without the consent or ratification of congress. Utah Min. ft
Manuf'g Co. v. Dickert & Myers Sulphur Co., 6 Utah, 183, 21 Pac. 1002, 5
L. R. A. 259. See **Puhlic Lands,*' Dec Dig. {Key No.) § 7; Cent. Dig. { 7;
** Indians," Dec Dig. (Key No.) IS S, 11; Cent. Dig. §| 5-7, 26.
6 106) BNUMB&ATBD POWEBS OF CONGRESS. 279
needful rules and regulations respecting them, but also from the right
of the national government to acquire territory, flowing from its power
to declare war and make treaties. And this plenary control extends to
the acts of territorial legislatures.*** Subject to the limitations ex-
pressly or by implication imposed by the constitution,*** congress has
full and complete authority over a territory, and may directly legislate
for the government thereof. It may declare a valid enactment of the
territorial legislature void, or a void enactment valid, although it re-
served in the organic act no such power.*** It may therefore be re-
garded as definitely settled that the power of congress over the terri-
tories will enable it either to make its own rules and regulations for
their government, or to erect territorial forms of government, and in-
vest them with such measure of legislative power as it may deem best.
And this power is exclusive, and exempt from all interference or con-
trol by the states.*** An act of congress provides that "the legislative
power of every territory shall extend to all rightful subjects of legis-
lation not inconsistent with the constitution and laws of the United
States. But no law shall be passed interfering with the primary dis-
posal of the soil ; no tax shall be imposed upon the property of the
United States; nor shall the lands or other property of nonresidents
be taxed higher than the lands or other property of residents." •** "A
rightful subject of legislation," it is said, "is a subject which, from the
nature of things, the course of experience, the practice and genius of
si» Late Corporation of Church of Jesus Christ y. U. S., 136 U. S. 1, 10
8ui>. Ct. 702, S4 L. Ed. 481 ; U. S. T. Kagama, 118 U. S. 375, 6 Sup. Ct 1109, 30
L. Ed. 228; American Ins. Co. y. 350 Bales of Cotton, 1 Pet 511, 7 L. SXL
242. Ab to the right and authority of congress to construct the Panama
Oftnal, see Wilson y. Shaw, 25 App. D. 0. 510. See ''Territories,'* Deo. Dig.
(Key No.) { 11; Cent. Dig. § 8.
ts» Kansas ▼. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956. Bee
**TerrUories,*' Dec. Dig. (Key No.) i 11; Cent, Dig. $ 8.
•«i First Nat. Bank v. Yankton County, 101 U. S. 129, 25 L. Ed. 1046. "Ac-
tion by congress in annulling territorial statutes is rare, and usually only
takes place in cases where they are not void of themselves, but simply im-
proper or inexpedient without being iUegal per se. The usual way of declar-
ing a territorial statute, which is Inconsistent with the higher law of con-
gress. Inoperative, is through the courts, just as in the states similar enact-
ments would be adjudged to be unconstitutional." In re Attorney (General,
2 N. M. 49. See **TerrUorie8," Dec. Dig. (Key No.) { 20; Cent. Dig. ^ 18.
t2s Snow ▼. U. S., 18 Wall. 317, 21 L. Ed. 784 ; Nelson v. United States
<a a) 30 Fed. 112; The Panama, Deady, 27, Fed. Cas. No. 10,702. See ''Ter-
rttorie«/' Dec. Dig. (Key No.) H 11, 18; Cent. Dig. §{ 8, U, IS.
tts Bey. St U. S. | 1851.
280 THB POWSB8 OF CONGRESS. (Ch. 8
our government, properly belongs to the legislature to regulate and
control, rather than to the judicial or executive departments of the
government." •** This grant of power to the territorial legislatures
is sufficient to authorize them to levy and collect taxes, subject to the
limitations above mentioned, to provide for the exercise of the power of
eminent domain,*** to pass laws restricting and regulating the sale
of articles deemed injurious to the health or morals of the communi-
ty,*** or a local option law,**^ and to grant charters of incorpora-
tion.***
The organic act of a territory is equivalent to a constitution ; it can-
not be modified or controlled by the legislature of the territory.***
And an act of the territorial legislature in violation of the organic act
is null and void, unless congress affirmatively approves it. Then it
would become part of the constitution of the territory, provided it
was not in conflict with the federal constitution.*** But "the terri-
tories being mere dependencies of the United States, exercising dele-
gated powers, and their governments being temporary agencies em-
ployed by congress to aid in their government during the term of their
pupilage, the capacity of their legislatures is regarded more rigorously
by the courts, aiid their enactments construed less liberally, than the
laws made by a sovereign, and they will be held void with less hesita-
tion when they are clearly unreasonable, oppressive, and unjust." **'
The executive power of each territory is vested in a governor, who is
appointed by the president, and holds his office for four years, unless
sooner removed by the appointing power.***
8S4 The Panama, Deady, 27, Fed. Cas. No. 10,702. See ^Vonsiitutional Law,**
Deo. Dig, (Key No.) | 50; Cent. Dig. fS 48, 49.
8«6 Oury Y. Goodwin, 3 Ariz. 255, 26 Pac. 376. See **TaxatiOf^** Deo. Dig.
(Key No.) § 19; Cent. Dig. M 48-60.
326 Territory v. Guyott, 9 Mont 46, 22 Pac. 134. See "Indians,** Dec Dig*
(Key 'So.) § 94; Cent. Dig. § 60.
8 27 Territory v. O'CJonnor, 6 Dak. 397, 41 N. W. 746. 3 L. R. A. 355. See
^^Territories** Dec. Dig. (Key No.) S 20; Cent. Dig. S 17; **IntogHcating Liq-
uors,*' Cent. Dig. § 6.
»«• Rogers v. Burlington, 3 Wall. 654, 18 L. Ed. 79. See "Corporations,*'
Dec. Dig. (Key No.) f 4; Cent. Dig. S H; "TerritoHes,** Cent. Dig. S 17.
•29HI11 V. Territory, 2 Wash. T. 147, 7 Pac. 63. See "Territories,** Dec
Dig. (Key No.) fi 20; Cent. Dig. S IT
»80 Godbe v. City of Salt Lake, 1 Utah, 6a See "Territories,** Dec Dig.
(Key No.) § 20; Cent. Dig. i 17.
881 People V. Daniels, 6 Utah. 288, 22 Pac. 159, 5 L. R. A. 444. Bee "Ter-
ritoriesr Dec. Dig. (Key No.) ^ 20; Cent. Dig. { 17.
ssa Rev. St U. S. { 1841.
S 105) ENUMERATED POWERS OF CONGRESS. 281
According to the law of nations, rights of property are protected,
even in the case of a conquered country, and are held sacred and in-
violable when it is ceded by treaty, with or without any stipulation
to that effect; and the laws, whether written or evidenced by the usages
and customs of the conquered or ceded country, continue in force un-
til altered by the new sovereign.*** The government of the United
States retains constitutional power to punish, through its courts, a
crime committed against it in one of the territories, although such
territory is admitted as a state pending the prosecution and before
conviction.***
Same-^Tli^JimiJmi^st TerrUory.
This was the name given to the great stretch of territory ceded to :
the United States by Great Britain at the close of the revolutionary I
war. Out of it were afterwards formed the five states of Ohio, In- \
diana, Illinois, Wisconsin, and Michigan. In 1787, before the adoption \
of the constitution of the United States, the congress of the confedera*^'^'
tion framed an "Ordinance for the Government of the Northwest
Territory," which is chiefly interesting to the student of constitutional
law on account of the liberal provisions which it made for the secur-
ity of civil, religious, and political liberty, and for the fact that it pro-
hibited slavery and involuntary servitude, except as a punishment for
crime, within the territory. This ordinance was not abrogated by
the adoption of the federal constitution, but remained in force as the
municipal law of the territory in so far as it was not inconsistent with
the constitution.***
Admission of Nezv States.
The establishment of a state constitution by the people of a ter-
ritory, which is to be admitted into the sisterhood of states, is reg-
ularly accomplished in the following manner: First of all, it is for
congress to decide whether the proposed new state shall be admitted.
The people of a territory have no right, under any circumstances, to
demand admission into the Union, in any such sense that the authoriza-
tion of congress can be dispensed with. The power to admit new
sss Strother y. Lucas, 12 Pet. 410, 0 L. Ed. 1137. Bee ^^Territories,'* Deo.
Dig. (Key No.) S 9; Cent. Dip. S 6; **War," Dec. Dig. (Key No.) f| 12, tl,
tt; Cent. Dig. H 4^. k9, 105-108.
s»« U. S. T. Baum (G. G.) 74 Fed. 48. See '^Oouria," Deo. Dig. (JKey No.)
f i$l; Cent. Dig. f| 1H5, 1U6.
sBi Spooner v. McGonnell, 1 McLiean, 887, Fled. Gas. Xo. 13,246. Bee '^Ter-
rUoriee,'* Deo. Dig. (Key No.) I i; Cent. Dig. 1 1»
282 THE POWERS OF CONOBESS. (Ch. 8
States is vested in congress exclusively. And the people of a territory
cannot force their way into the Union by framing and adopting a con-
stitution, electing state officers, and assuming to act as a state. Not-
withstanding such action, if they had not the authorization of congress,
they would remain a territory and still subject as such to the super-
vision of the national government: Congress, in its political capacity
and as the general guardian of the nation, must then consider wheth-
er it is expedient that the territory be admitted as a state. But when it
is decided to admit the new state, a statute is passed for that purpose,
called an enabling act. It describes the boundaries of the new state,
provides that the people may appoint a constitutional convention, pre-
scribing the qualifications of the members thereof and the manner of
their election, as well as the qualifications of those who are to be given
the right to vote for them, provides that the convention so chosen shall
proceed to frame a constitution, which shall provide for a government
republican in form and not be repugnant to any provision of the na-
tional constitution, and which shall be adopted by the people, and then
shall be submitted to congress for its approval, and enacts that upon
such approval, the territory shall become and be a state of the Union.
The enabling act may, and usually does, contain many other provisions,
either as to the principles or contents of the new constitution, or as
to matters between the new state and the Union which are deemed best
settled upon the admission of the state. But the foregoing elements
are those which alone are essential to it.**' When the constitution thus
framed is laid before congress, it is for that body to consider whether
it has been properly adopted, and whether it is in conformity to the
**• It Is entirely competent for congress, in giving its consent to the ad-
mission of a new state, to impose conditions which shaU be binding and ir-
revocable. This may be done by requiring certain clauses to be inserted in
the constitution of the new state, or by requiring its legislature to give a
formal assent to the stipulations made by congress. These conditions could
not be abrogated or evaded by the new state, as, by the adoption of a new
or amended constitution, at least in so far as they formed a compact with the
general government or were in accordance with the terms of the federal con-
stitution. Brittle V. People, 2 Neb. 198. The following may be mentioned as
examples of conditions thus imposed: A requirement that the new state shall
renounce all Jurisdiction and right of taxation over the lands of the United
States within its borders; that it shall cede certain territory to another state,
or that a disputed boundary shall be settled in a particular way ; that slavery
shall not be i)ermitted; that no invidious laws shall ever be passed against
certain classes or races of people. See "Conatitutional Law,** Dec. Dig. (Key
No.) f i; Cent. Dig. { i.
§ 105) ENUMERATED POWERS OF CONGRESS. 283
national constitution^ and whether it contains those guaranties of pri-
vate, social, and political rights which are secured to the citizens of
the United States. If these facts are found in its favor, it is approved
and thereupon comes into operation and effect as the constitution of
the new state.
It will be noticed that while the constitution provides that new
states may be admitted into the Union, it does not prescribe any rules
as to the mode or manner of their admission. Consequently, this whole
matter being within the control of congress, that body has the power
not only to provide a method of establishing a new state, but also of
condoning any omission or irregularity in the manner in which its
authorization or its directions are carried out. If the people of a ter-
ritory, without waiting for an enabling act, should meet in convention
and frame and adopt a constitution, and present it to congress, and
claim admission as a state, it is true, as already stated, that congress
would not be compelled to accept their petition. But congress could do
so, and no question as to the legality of the admission of the state
could thereafter be raised. So, if the provisions of an enabling act
should be disregarded or irregularly carried out, it would unquestion-
ably be within the power of congress to waive the irregularity. Again,
it is proper for congress, in considering a constitution framed in any
of these modes, to accept it conditionally, if it shall find sufficient rea-
son for such a course.
It is not to be supposed that the authority of congress, in this mat-
ter, was limited to that domain which belonged to the United States
at the adoption of the constitution, or that territory newly acquired may
not be erected into a state or states if it shall seem good to congress, or
that it is necessary first to give a territorial form of government. Texas,
for example, was not a part of the original United States. It was an
independent republic at the time of its annexation. But it is not to be
doubted that its admission into the Union was in all respects conform-
able to the constitution.
The constitution also provides that no new state shall be formed or
erected within the jurisdiction of any other state without the consent
of the legislature of the state concerned.**' The case of West Virginia
ttT After the admission of Louisiana into the Union, congress could not
take away any portion of that state in admitting Mississippi to the Union,
and gi^e it to the latter state. Louisiana v. Mississippi, 202 U. S. 1, 26 Sup.
Ut 408^ 50 L. Ed. 913. Be§ **Sta$€8;* Deo. Dig. (Key No.) { 15; Cent. Dig.
I 15.
284 THB FOWRR8 OF CONOBE88. (Ch. 8
constitutes an apparent violation of this rule. For it was formed out
of the territory theretofore belonging to Virginia. But the doctrine
on which this action was justified by the government was as follows:
At that time the state of Virginia was in armed rebellion against the
United States. Its government was insurrectionary. Its legislature,
so far as concerned public acts, was unlawful. But the people occupy-
ing a part of its territory remained loyal to the United States. These
people, with the consent of congress, might and did maintain a govern-
ment loyal to the United States and in full constitutional relations with
the general government. It was in the power of congress to recognize
this loyal government as the rightful government of the state of Vir-
ginia. And such government could therefore give its consent to the
erection of a new state, formed out of part of the territory of Virginia.
The legislature of the new state, when established, could agree, by
the consent of congress, with the government of the old state as to the
terms and conditions of the partition. This doctrine has been accepted
by the courts.***
106. Tlie eonstitution, after enumerating oertain powers Tested In
congreii, provides that eongreM shall have power to ''niake
all laws whieh shall be neeessary and proper for earrylnc
into eseention the foregoinc powers and all other powers
Tested hj this eonstitntion in the ffOTemment of the Unit-
ed States or in any department or oi&oer thereof.** This
olanse is the foundation of the doetrine of implied powers*
To recite all the various occasions on which congress has availed
itself of this grant of incidental powers would amount to making a
transcript of the federal statutes. But a few illustrations may profit-
ably be introduced, in order to exhibit the practical working of the
power. Almost the entire criminal jurisprudence of the United States
is derived from this power. For the punishment of offenses against
the revenue, against the postal service, perjury, embezzlement, mal-
feasance in office, and many other felonies or misdemeanors, is neces-
sary to secure the due and effectual operation of the laws made by con-
gress in the exercise of its enumerated powers. The money powers of
the federal legislature are held to give it the right to issue bonds and
establish a system of national banks. Its power to regulate commerce
S88 Virginia v. West Virginia, 11 Wall. 39, 20 L. Bd. 67. See *'8tate9,''
Dec Dig. (ICey No.) H 6, IS; Cent. Dig. H S, 12.
S 106) IHPUED POWBBfl. 285
invests it with authority to improve rivers and harbors, to maintain
a cpast survey, life-saving stations, and a naval observatory, to regu-
late the liabilities of ocean carriers and the charges of railroads, and
to protect commerce against unlawful restraints and monopolies and
illegal combinations and trusts. Its power to lay and collect taxes
furnishes the authority for the establishment and maintenance of the
whole elaborate system for the collection of the customs duties and in-
ternal revenue. Its authority to establish post-offices and post-roads
includes the power to secure the passage of the mails from all obstruc-
tions or interruptions, to punish offenses against the postal laws, and
to exclude lottery advertisements and indecent matter from the mails,
and to grant to telegraph companies a right of way over the public
domain. Wherever congress advances to fill the sphere of legislative
jurisdiction confided to it by the great grants of the constitution, there
advances with it the right and power to choose the means by which
its laws shall be made effectual and which are appropriate to the ends
it is designed to accomplish.***
But it has been contended that the choice of means or instrumental-
ities is Jiot unrestricted. They must be "necessary" for carrying into
execution the enumerated powers. The important word here, how-
ever, is relative, not absolute. The necessity required is not an impera-
tive necessity. The constitution does not mean that the power to be
exercised must be the only power which could by any possibility be
resorted to for carrying the design of congress into execution. There
may, for instance, be two or more methods of accomplishing a given
result. If the result must be accomplished, any one of these methods
may properly be said to be necessary, although neither is absolutely
necessary, since if one should fail the other would remain open and the
result still be accomplished. The more liberal interpretation to be
given to the word in this connection is shown by the use of the phrase
"absolutely necessary" in that clause of the constitution which forbids
the states to lay duties on imports or exports. This shows that the
ss»A8 an additioDal Ulustratlon of this doctrine, we may mention the act
of congress prohibiting federal officers from giving, soliciting, or receiving
contributions for political purposes. This statute is not unconstitutional.
"The evident purpose of congress In all this class of enactments has been
to promote efficiency and integrity in the discharge of official duties, and to
maintain proper discipline in the public service. Clearly such a purpose is
within the Just scope of legislative power." Ex. parte Curtis. 106 U. S. 371,
1 Sup. Ct. 381, 27 L. Ed. 232. See, also, Opinion of the Justices, 138 Mass.
eoi.' See **United State*:' Dec. Dig, (Key No.) { 52; Cent. Dig. { S7.
286 THK FOWCBS OF COSOtUUB. (Ql 8
authors of the constitution were aware of the relative nature of the
word ''necessary/' and did not intend to give it the most restrictive
meaning in this part of the instrument. Moreover, it is here coupled
with the word "proper." If the necessity intended were an absolute
necessity, the addition of the word "proper" would be merdy non-
sensical. For imperativeness excludes all questions of propriety. But
if we take the first word in a less restricted sense, the other may well
be understood as requiring that the means chosen shall be actually ap-
propriate to the ends in view. The result is that congress is invested
with authority to avail itself of such means or agencies for carrying
into effect its enumerated powers as shall be requisite, essential, or
conducive to the accomplishment of that result and bona fide appro-
priate thereto. And of the existence of this kind of necessity, or of
the condudveness of the means to the end, congress is to judge in the
first instance. Its decision is not conclusive. The courts may also
determine the question when it is properly presented to them. But
they will not set aside an act of congress as unconstitutional, on this
ground, unless it is clearly apparent that the statute can by no means
be needful or appropriate to the execution of any of the specified pow-
ers of the federal legislature. These principles are fully sustained by
the decisions of the supreme court.*^*
It was on this ground that the constitutionality of the act incor-
porating the bank of the United States was principally sustained. And
tfie reasoning ^iplies equally to other corporations. It is true that
we cannot find in the constitution an express grant of power to con-
gress to grant charters of incorporation. But if a bank, a railroad,, a
telegraph company, or any other kind of a corporation is a means
or agency needed by congress in the exercise of its admitted powers,
or conducive to their due execution, and plainly adapted to the accom-
plishment of that end, then congress has power, under this clause of
the constitution, to incorporate it.***
««• McCnllCKft T. Marylaiid, 4 Wheat. 816, 4 L. Ed. 679; Martin v. Hunter.
1 Wheat 304. 4 L. Ed. 97; Gibbons v. Ogden, 9 Wheat 1, 6 L. Ed. 23: Hep-
bnm ▼. Orlswold. 8 Wall. 003, 19 U Ed. S13: Legal Tender Cases, 12 WaD.
457. 20 !«. Ed. 287; JnUliard r. GicenmsJi, 110 U. 8. 421, 4 Sup. Gt 122, 28
L. Ed. 204; U. 8. T. Coombs. 12 Pet 72, 9 L. Ed. 1004. And see Karem t.
United States, 121 Fed. 29a 57 C. C. A. 488. 61 L. R. A. 487. See '^CongtUu^
tional Lawr Dec. Dig, {Key A*o.) H ^8, 47, 4^; Cenl. Dig. H ^6, 4^4^.
S41 McCnUodi T. Maryland, 4 Wheat 316» 4 L. BL 579; Osbom t. Bank
of U. 8., 9 Wheat 738. 8 L. Bd. 204; Farmers' k Medianks' Nat Bank t.
Dcsrina, 91 U. 8. 29, 23 Lu Ed. 196; 2 Story, Const f| 1259-1271. Bm t/sr-
pontiomMr Deo. Dig. {Keg ITo.) i 4; CetU. Dig. % U,
§ 107) LIMITATIONS ON POWERS OF 0ONOBE88. 287
LIMITATIONS ON FOWEB8 OF OONOBE88.
107. Tlie limitatloiui upon, tbe legislatiTe power of oonsre«*9 vader
the eonitttution, may bo dividod into four oIassos^^
(a) Implied lisnitations*
(b) Goaorol limitAtloiM.
Co) SpooiAo liatitatiosfl upon coiiorol powers.
Cd) Spoolflo liatitationi vpoa spoolflo powers*
Implied Limitations.
Besides the restriction upon the legislative power of the United
States growing out of the fact that it is a government of enumerated
powers, which has been already adverted to, there are certain limita-
tions upon legislative power in general, arising from the nature of
government and the partition of powers among the several depart-
ments of the government, which are applicable to congress, as to any
legislative body. These limitations are not expressed in the constitu-
tion, but they are none the less effective and binding. We have chosen
to describe them as "implied limitations."
It is clear, in the first place, that congress cannot pass any law alter-
ing the form or frame of the government, curtailing tlie autonomy of
the United States, or subjecting the government to the influence or
ascendency of any foreign power.
Nor can it make exterritorial laws ; that is, laws designed to oper-
ate beyond the boundaries or the jurisdiction of the United States.
Nor could it renounce or surrender any of the powers granted to it
by the constitution, whether to the other branches of the government,
the states, or private parties.
Nor could it legally encroach upon the province of either the ex-
ecutive or the judicial department of the government or usurp the
functions of either.
Nor can it delegate the powers confided to it, or authorize their ex-
ercise by any other body or any person.***
t4sOn tbe general subject of tbe delegation of legislative power by con-
gress, and particularly to adminlstratiye boards and officers, see Bntte City
Water Ga v. Baker, 196 U. S. 119, 25 Snp. Ct 211, 49 L. Ed. 409 ; Bnttfleld
T. Stranaban, 192 U. S. 470, 24 Sup. Ct d49, 48 L. Bd. 525; Hanover Nat
Bank v. Moyses, 186 U. S. 181, 22 Sup. Ct. 857, 46 L. Ed. 1118 ; Rice v. Ames,
180 U. S. 371, 21 Sup. Ot 406, 45 L. Ed. 577 ; Dunlap v. United States, 173
U. 8. 65, 19 Sup. Ct 819, 48 L. Ed. 616 ; In re Kollock, 165 U. S. 526, 17 Sup.
Ct 444, 41 L. Ed. 813; Dastervignes v. United States, 122 Fed. 30, 58 C
a A. 846 ; Butler v. Wbite (C. C.) 88 Fed. 578 ; United States v. Blasingame
288 THK FOWSB8 OF CK>MaBSU. (Ch. 8
General Lifnitations.
The general limitations upon the power of the federal government
are found in the ninth and tenth amendments to the constitution. In
regard to the first of these, it has been said that it ''was manifestly
introduced to prevent any perverse or ingenious misapplication of the
well-known maxim that an afiirmation in particular cases implies a
negation in all others, and, e converso, that a negation in particular
cases implies an affirmation in all others. The maxim, rightly under-
stood, is perfectly sound and safe; but it has often been strangely
forced from its natural meaning into the support of the most dangerous
political heresies." •*• The tenth amendment was adopted in conse-
quence of the jealousies felt by the states with regard to the power of
the central government, and was designed to make it more clear and
certain that the government of the United States was one of delegated
and enumerated powers. The force and applicability of this amend-
ment are chiefly apparent when it is considered in connection with the
grant to congress of power to "make all laws which shall be necessary
and proper for carrying into execution" its enumerated powers. It
should therefore be studied in relation to the doctrine of implied and
incidental powers.
Specific Limitations upon General Powers.
The specific limitations upon the general powers of congress are
mainly found in the first eight amendments to the constitution and
in the last three. These constitute what may be called the federal bill
of rights. They are intended to secure those personal, social, and
political rights which are generally esteemed characteristic of a free
country, against all abridgment or invidioiTs legislation on the part
of the national government. These are best considered in connection
with the study of those rights, and will be found treated in the chap-
ters on civil and political rights and the constitutional guaranties in
criminal cases. But there are certain limitations of federal power,
found in other parts of the constitution, which must be briefly noticed
here, as belonging to this class. Thus, "the migration or importation
<D. a) 116 Fed. 654; United States ▼. Romard (C. O.) 89 Fed. 166; United
States v. Ormsbee (D. C.) 74 Fed. 207; United States v. Breen (C. C.) 40
Fed. 402 ; Czarra v. Board of Medical Sup'rs, 24 xVpp. D. (X 251 ; Prather ▼.
rnlted States. 9 App. D. C. 82; Moore v. Allen, 7 J. J. Marsh. (Ky.) 651;
State V. Chittenden, 127 Wis. 468, 107 N. W. 000; Schaezleln v. Cabanniss,
135 Cal. 466, 67 Pac. 755. 56 L. R. A. 733, 87 Am. St. Rep. 122. fifee "Cofwttti^
tional Law," Dec. Dig. (Key No.) {g 59-66; Cent. Dig. fit 89-122.
S4I 2 Story, Const i 1903.
§ 107) LIMITATIONf ON FOWKB8 OF OOHORSSa. 289
of such persons as any of the states now existing shall think proper
to admit shall not be prohibited by the congress prior to the year 1808."
This obscure phrase was designed to secure the continuance of the
African slave-trade until the year designated. Its insertion was neces-
sary to secure the adoption of the constitution, and was one of the
principal compromises of that instrument. As soon as the stipulated
twenty years had elapsed, congress absolutely prohibited the further
importation of slaves, and also made the slave-trade piracy and pun-
ishable with death. Again, "no money shall be drawn from the treas-
ury but in consequence of appropriations made by law; and a regu-
lar statement and account of the receipts and expenditures of all pub-
lic money shall be published from time to time."
"No title of nobility shall be granted by the United States; and
no person holding any office of profit or trust under them shall, with-
out the consent of congress, accept of any present, emolument, office,
or title, of any kind whatever, from any king, prince, or foreign state."
The clause which prohibits the granting of titles of nobility has but
little significance at the present day. But it was once thought import-
ant, as a means of preserving the simplicity of republican institutions
and policy, and was also deemed a valuable safeguard against the
possible ascendency of powerful and ambitious families.*** The same
prohibition is also laid upon the states.
Specific Limitations upon Specific Powers,
These limitations have already been discussed in connection with
the powers to which they relate, and it is only necessary here to enu-
merate them, for the purpose of giving a complete conspectus of the
powers and restrictions of the national legislature.
Congress may alter the regulations made by the several states as
to the time, place, and manner of holding elections for senators and rep-
resentatives, except as to the places of choosing senators.
Congress has power to lay and collect taxes. But all duties, imposts,
and excises shall be uniform throughout the United States, and no capi-
tation or other direct tax shall be laid unless in proportion to the census
t«« Congress has provided that In case an alien applying for naturalization
has borne any hereditary title, or been of any of the orders of nobility, of
the kingdom or state from which he comes, he must make an express re-
nunciation of such title or order before being admitted to citizenship, which
renunciation shall be recorded ^ey. St U. 8. | 2160 (U. 8. Gomp. St 1901,
p. 1329).
BImOon8T.L.(Bd.Bd.) — IB
290 THE FOWEK6 OF CK>NaBE8S. (Ch. 8
or enumeration^ and no tax or duty shall be laid on articles exported
from any state.
Congress has power to regulate foreign and interstate commerce.
But no preference shall be given by any regulation of commerce or
revenue to the ports of one state over those of another.
It has the power to enact laws concerning naturalization and bank-
ruptcy. But these must be uniform throughout the United States.
It has power to grant patents and copyrights. But these must be
for limited times only.
It may constitute courts. But these must be inferior to the supreme
court. In other words, congress can never strip the supreme court of
its functions and prerogatives by creating another court with appellate
jurisdiction over it.
It has power to raise and support armies. But no appropriation
of money to that use shall be for a longer term than two years.
It may provide for organizing, arming, and disciplining the militia,
and for governing such part of them as may be employed in the serv-
ice of the United States. But there is reserved to the states the ap-
pointment of the officers and the authority of training the militia ac-
cording to the discipline prescribed by congress.
Congress has power to declare the punishment of treason. But no
attainder of treason shall work corruption of blood, or forfeiture ex-
cept during the life of the person attainted.
New states may be admitted by congress into the Union. But no
new state shall be formed or erected within the jurisdiction of any
other state, nor any state be formed by the junction of two or more
states or parts of states, without the consent of the legislatures of the
states concerned as well as of congress.
§S 108-110) INTBBSTATB LAW UNDEB THB CONSTITUTION. 291
IMTBRSTATE LAW AS DETTERMINEa) BY THE CONSTITUTION.
108-110. General Principles.
111. Privileges of Citizens.
112. Public Acts and Judicial Proceeding!.
lia-116. Interstate Extradition.
OENERAI. FBINOIPIiES.
108. 1m all relations not resnlated hj the federal eomstltntiony the
sereral states of the Union oeonpy the positiom of Jndto
pendent powers in elose allianee and friendship.
109. As between the soTeral states, and their people, the prineiples
of priTate international law applj with oTon sreater fovea
than as between the snbjeets of foreic^ nations.
110. In nuktters independent of the eonstitntion, the prineiple of
interstate eomity mnst yield to the interests or the poUey
of the partienlar state.
If it were not for the provisions of the constitution of the United
States, no state would be legally bound to give effect to the laws or
institutions of another state within its own borders or in their applica-
tion to its own citizens, or to recognize the judgments or decrees of
the courts of another state as technically binding on its own courts, or
to accord to the citizens of another state, when resident within its lim-
its or there engaged in business, any greater rights or privileges than
it might see fit to grant to citizens or subjects of foreign nations under
like circumstances. In all the most fundamental particulars, this pow-
er to discriminate against each other is taken away from the states by
the constitutional provisions which we are to consider in the following
pages. But in all other matters, the several states, being foreign to
each other, will apply the rules of private international law to questions
concerning the property, rights, contracts, or actions of a citizen of one
state projected over into another state. These rules, while recognized
and enforced by the courts in the absence of any countervailing statute,
yet rest on no firmer foundation than the principle of interstate com-
ity, and must give way whenever they are found to be in conflict with
the laws or policy of a state in the interests of its own people.^
1 Bhaw T. Brown, 85 Miss. 246; Donovan v. Pitcher, 63 Ala. 411, 25 Am.
Rep. 634. The power of determining whether and how far, or with what modi-
292 INTOB8TATB LAW UNDBB THB CONSTITUTION. (OIl 9
FBIVII£OE8 OF OITIZEK8.
111. By A pro<Tisioa of tbe federal eonstitntioii, tkeieitiseni^f eaeH
state are entitled to all the privileses aaf"t— Ifii ultiee of
eitlaene in the soTeral states.
What Privileges Intended.
The supreme court of the United States has declared that it will
not undertake to describe and define the rights and privileges of cit-
izens under this clause in any general classification, preferring to de-
cide each case which arises under this provision as it may come up.'
It is evident, however, that the rights and privileges here intended are
only such as belong to citizenship. And a more definite idea of the
meaning of the clause may be obtained from a consideration of the pur-
pose with which it was inserted in the constitution. This purpose was
to prevent the states from making invidious discriminations against
non-residents, and to promote the unification of the American people,
by breaking down state lines, in respect to the enjoyment of social and
business privileges and the favor and protection of the laws.* Accord-
ingly we may say that the privileges and immunities secured by this
clause of the constitution include protection by the government; the
enjoyment of life and liberty, with the right to acquire, possess, and
dispose of property of every kind ; * the right of a citizen of one state
to pass freely into, through, and out of another state, with his property,
ficatlon, or upon what conditions, the laws of one state or any rights dependent
upon them shaU be recognized in another Is a legislative one ; the comity in-
volved is the comity of the states, and not of the courts; and the Judiciary
must be guided in deciding the question by the principle and policy adopted by
the legislature. Thompson v. Waters, 25 Mich. 214, 12 Am. Rep. 243.
2 Conner v. Elliott, 18 How. 591. See "Constitutional Law,*' Deo. Dig. (Key
No.) S 207; Cent. Dig. S 625.
» Corfield v. Coryell, 4 Wash. C. 0. 371, Fed. Cas. No. 3,230 ; McCready ▼.
Commonwealth, 27 Grat. (Va.) 985; Ward r. Maryland, 12 Wall. 418, 430, 20
L. Ed. 449 ; Crandall v. Nevada, 6 Wall. 35, 18 L. Ed. 745 ; Commonwealth v.
Shaleen, 30 Pa. Super. Ct. 1. See "Commerce," Cent. Dig. | 129; "Cofw«*ii-
tional Lawr Dec. Dig. {Key No.) { 207; Cent. Dig. H 625, 6S2, 6SS, 6S7.
4 Roby V. Smith, 131 Ind. 342, 30 N. E. 1003, 15 L. R. A. 792, 31 Am. St Rep.
439 (a statute Is invalid which forbids the appointment of non-residents as
trustees in deeda or mortgages). But a state may restrict to its own citizens
th^. right to act as executors (In re Mulford, 217 lU. 242, 76 N. E. 345, 1 L. R.
A. P^. S.] 841, 108 Am. St Rep. 249) or as assignees for the benefit of credit-
ors (Duryea ▼. Muse, 117 Wis. 399, 94 N. W. 365). Se0 **OonatUutional Law,
Dec Dig. {Key No.) { 207; Cent. Dig. H 625, 6S5.
n
^
§ 111) FBIVILCOB8 OF GITIZBNB. 293
subject only to reasonable and proper quarantine and inspection laws ; *
and to transact business in any other state free from any restrictions or
burdens which are not imposed on its own citizens ; • and to engage in
and practice his lawful trade or profession therein, except in so far
as this right may be restricted by proper police regulations ; ^ and to
claim the benefit and protection of its law, as a safeguard against in-
justice, and to have free access to its courts for the enforcement of his
own just claims and demands.* A state law which gives priority to
citizens of the state, as against non-residents, in the distribution of
the assets of an insolvent f oreigpn corporation,, is for this reason in-
B Reid y. Colorado, 187 U. S. 137, 23 Sup. Ct 02, 47 L. Ed. 108 ; Hannibal A
St J. R. Co. V. Husen, 95 U. S. 465, 24 L. Ed. 527 ; Train v. Boston Disinfect-
ing Co., 144 Mass. 523, 11 N. E. 929, 59 Am. Rep. 113 ; Adams <k Bryson T.
Lytle (C. C.) 154 Fed. 876. Bee ''Commerce** Cent. Dig. H 49, 89; ''Constitu^
tiorua Lawr Dec. Dig. (Key No.) S 207; Cent. Dig. » 6S3, 6S8; **He<ath,'* Cent.
Dig. I 26.
« Barnes v. People, 168 111. 425, 48 N. E. 91 ; State v. Board of Insurance
Com'rs, 37 Fla. 564, 20 South. 772, 83 L. R. A. 288. See ''Constitutional Law,*'
Dec. Dig. (Key No.) | 207; Cent. Dig. | 625.
T A state statute restricting the grant of retail liquor licenses to dtlzena Gt
the state is not an unlawful discrimination against non-residents, but Is a
proper polfce regulation. De Grazier v. Stephens (Tex.) 105 S. W. 992, 16 L.
R. A. (N. S.) 1033 ; Austin y. State, 10 Mo. 591 ; Kohn y. Melcher (a C.) 29
Fed. 433 ; Welsh y. State, 126 Ind. 71, 25 N. E. 883, 9 L. R A. 792. The same
applies to a law regulating the practice of medicine and requiring non-resident
applicants for a license to be examined by a state board (State y. Currens,
ill Wis. 431, 87 N. W. 561, 56 L. R. A. 252) or prohibiting non-resident physi-
cians from practicing in the state exc^t when called in consultation (France y.
State, 57 Ohio St. 1, 47 N. E. 1041). So also of a law requiring coal miners to
have had two years' experience '*ln the mines of this commonwealth." Com-
monwealth y. Shaleen, 215 Pa. 595, 64 Atl. 797. See "Constitutional Law,*'
Dec. Dig. (Key No.) f 207; Cent. Dig. H 629, 651, 6S2.
8 Steyens y. Brown, 20 W. Ya. 450 ; Elngartner y. Illinois Steel Co., 94 Wisi
70, 68 N. W. 664, 34 L. R. A. 503, 59 Am. St R^. 859; In re Flukes, 157 Mo.
125, 57 S. W. 545, 51 L. R A. 176, 80 Am. St Rep. 619 ; Deatrick's Adm'r y.
State Life Ins. Co., 107 Va. 602, 59 S. E. 489; Drew y. Obbb, 129 App. Dly.
453, 113 N. Y. Supp. 1042. But the right to use the process of foreign at-
tachment may be restricted to citizens of the state. Klncald y. Francis,
Cooke (Tenn.) 49. And so of a right of action for damages vested by stat-
ute in the widow and heirs of a person whose death was caused by negli-
gence or wrongful act Chambers v. Baltimore ft O. R Co., 207 U. S. 142, 28
Sup. Ct 34, 52 L. Ed. 143. And a non-resident plidntlff may be required to fur-
nish security for costs. Holt v. Tennallytown ft R. R. Co., 81 Md. 219, 31 AtL
809 ; CummingB v. Wlngo, 81 S. C. 427, 10 S. E. 107. Bee "ConstUutional Law,**
Deo. Dig. (Key No.) ft 207; Cent. Dig. H Si6, 647.
294 INTBBSTATB LAW UNDBR THE CONSTITUTION. (Ql. 9
valid,* and so is one which authorizes a personal judgment against
a non-resident on constructive service of process/® though it is other-
wise if the judgment affects only property attached within the state."
IVhat Privileges not Included.
This clause of the constitution does not confer upon the citizens of
each state the right of voting, of being elected, or of holding office
in the other states. These are political privileges which each state may
justly reserve for its own citizens. But it would not be competent for
the state to deny to non-residents the right to acquire citizenship among
its own people, upon abandoning their former domicile, as a prelim-
inary to exercising the right of suffrage.** Nor does this constitu-
tional provision entitle the citizens of the various states to share in
the common property of citizens of a particular state, as, for example,
the right of hunting wild game or fishing or taking oysters or clams
from the waters of the state ; and it is not infringed by a state law
restricting such rights of hunting and fishing to the citizens of the
state."
Who are Citizens.
Since the constitution provides that the citizens of "each state" shall
be entitled to these privileges and immunities, it may well be ques-
tioned whether citizens resident in the territories and the District of
Columbia may claim the benefit of this clause. The same reason which
excludes them from the right to sue citizens of the states in the fed-
• Sully v. American Nat Bank, 178 U. S. 289, 20 Sup, Ct 935, 44 L. Ed. 1072 ;
Blake v. McClung, 172 U. S. 239, 19 Sup. Ct 165, 43 L. Ed. 432 ; Maynard v.
Granite State Provident Ass'n, 92 Fed. 435, 34 C. C. A. 438. See **C<m8tUu-
tional Law;' Dec. Dig, {Key No.) § 207; Cent. Dig. Sf 625-6^8.
10 Moredock v. Klrby (C. C.) 118 Fed. 180. See **Con8titu tional Law," Dec.
Dig. (Key No.) S 207; Cent. Dig. | 6^6.
11 Reid V. Mlckles (Tex. Olv. App.) 29 S. W. 563. Bee ''Oonetitutional Law,"*
Dec. Dig. (Key No.) | 207; Cent. Dig. | 929.
n Murray v. McCarty, 2 Munf. (Va.) 393; Campbell y. Morris, 3 Har. &
McH. (Md.) 535, 554. See **Con8titutional Law," Dec. Dig. (Key No.) S 207;
Omt. Dig. If 642, 645.
IS McCready y. Virginia, 94 U. S. 391, 24 L. Ed. 248; State y. Tower, 84 Me.
444, 24 Atl. 898 ; In re Eberle (C. C.) 98 Fed. 295 ; Commonwealth y. HUton,
174 Mass. 29, 54 N. B. 362, 45 L. R. A. 475 ; State y. Corson, 67 N. J. Law, 178,
50 Atl. 780; Brooks y. Tripp, 135 N. C. 159, 47 S. E. 401. And see Geer y.
Connecticut, 161 U. S. 519, 16 Sup. Ct 600, 40 L. Ed. 793; Magner y. People, 97
111. 320. See **Commerce," Cent. Dig. § 102; ^'Constitutional Law," Deo. Dig.
(Key No.) | 2(rr; Cent. Dig. I 6S7; **Game," Cent. Dig. I 2.
§ 111) PBIYILEGSS OF OITIZEII0. 295
eral courts would seem to be operative here.** It is settled that cor-
porations are not citizens, within the meaning of this provision; it
is intended to apply to natural persons only. Hence a state may law-
fully either grant or refuse to foreign corporations the privilege of do-
ing business within its limits, and if it accords the privilege, it may im-
pose terms and conditions on its exercise.**
Discriminating Taxes.
A state statute imposing a license tax upon peddlers, salesmen, or
traveling merchants, must not make any discrimination against citizens
of other states, either by placing a heavier burden of taxation upon
them than is borne by the citizens of that state, or by giving to its
own citizens privileges which are not accorded to non-residents in the
same line of business. If it does, it is obnoxious to the clause under
consideration.** And so of an inheritance tax law which discriminates
against non-resident beneficiaries.*^ And any tax law of a state which
14 In re Johnson's Estate, 139 Cal. 532, 73 Pac. 424, 96 Am. St. Rep. 161. See
••OonetUutional Law,'* Deo. Dig. {Key No.) { 207; OerU. Dig. | 626.
i« Paul V. Virginia, 8 Wall. 168, 19 L. Ed. 357 ; Ducat v. Chicago, 10 Wall.
410, 19 L. Ed. 972; Liverpool & L. Life & F. Ins. Co. ▼. Mnssadiusetts, 10
WaU. 566, 19 L. Ed. 1029 ; Warren Mfg. Co. v. Etna Ins. Co., 2 Paine, 501, Fed.
Cas. No. 17,206 ; Pembina Consol. Silver Min. ft Mill. Co. y. Pennsylvania, 125
U. 8. 181, 8 Sup. Ct 737, 31* L. Ed. 650 ; Horn Silver Min. Co. v. New York,
143 U. S. 805, 12 Sup. Ct. 403, 36 L. Ed. 164 ; Slaughter v. Commonwealth, 13
Orat (Va.) 767 ; People v. Imlay, 20 Barb. (N. T.) 68 ; Western Union Tel. Co.
T. Mayer, 28 Ohio St 521 ; Fire Department v. Helfensteln, 16 Wis. 136 ; Nor-
folk ft W. R. Co. V. Pennsylvania, 136 U. S. 114, 10 Sup. Ct. 958, 34 L. Ed.
894 ; Blake v. McClupg, 172 U. S. 239, 19 Sup. Ct. 165, 43 L. Ed. 432 ; In re
Speed's Estate, 216 111. 23, 74 N. E. 809, 106 Am. St Rep. 189; Attorn^ Gen-
eral T. Electric Storage Battery Co., 188 Mass. 239, 74 N. E. 467; Orient Ins.
Co. T. Daggs, 172 U. S. 557, 19 Sup. Ct 281, 43 L. Ed. 552 ; Western Union
Tel. Co. v. State, 82 Ark. 309, 101 S. W. 748 ; Commonwealth v. Gregory, 121
Ky. 256, 28 Ky. Law Rep. 217, 89 S. W. 168 ; Roeder y. Robertson, 202 Mo. 522,
100 S. W. 1086; People v. Granite State Provident Ass'n, 41 App. Div. 257, 58
N. Y. Supp, 510. See ^'Constitutional Law,'' Dec Dig. {Key No.) | 207; Cent.
Dig. H 625, 627.
i« Ward y. Maryland, 12 WaU. 418, 20 L. Ed. 449 ; Cullman v. Amdt, 125
Ala. 681, 28 South. 70; In re Jarvis, 66 Kan. 329, 71 Pac. 576; Rodgers y.
Adsit, 115 Mich. 441, 73 N. W. 381 ; Bacon v. Locke, 42 Wash. 215, 83 Pac.
721 ; McGuire y. Parker, 32 La. Ann. 832 ; Daniel v. Trustees Richmond, 78
Ky. 542 ; State y. Lancaster, 63 N. H. 267 ; Rash v. Holloway, 82 Ky. 674. See
In re Rudolph (C. C.) 6 Sawy. 295, 2 Fed. 65. See **ConstUutional Law," Dec.
Dig. (fey No.) f 207; Cent. Dig. IS 6S2, 642.
IT In re Mahoney's Estate, 133 Cal. 180, 65 Pac. 389, 86 Am. St Rep. 156.
806 '^OanetUutional Law," Deo. Dig. {Key No.) | 207; Cent. Dig. || 625-648.
296 INTBRSTATB LAW UNDER THB CONSTITUTION. (GIl. 9
necessarily discriminates against the introduction and sale of the manu-
factures or products of another state or states, and in favor of the
manufactures or products of its own citizens and against those of other
states, is unconstitutional, for the same reason.^*
FXTBUO AOT8 ANB JUBIOIAIi FROCEEDINOS.
112. Tlie eonititiitlon also proTides that ^'fiill faith and oredit shall
he giweiL in each state to the pnhlio acts, records, and jndi-
^^ I j olal proeeedinc> of every other state. And the congress nuiy
hy ceneral laws prescrihe the nuuiner in which snch acts*
reeordSf and prooeedinc* shall he prored, and the effect
/'A
w
, ^ '•/ thereof •**
Public Acts,
This constitutional requirement implies that the public acts (that is,
statutes) of every state shall be given the same effect by the courts of
another state that they have by law and usage at home. This of course
does not give them any ex-territorial effect, but applies Only to the de-
termination of cases which they are alleged to govern. But the courts
of one state cannot take judicial notice of the laws of another state;
they must be proved as facts.**
Judgments and Decrees.
If it were not for this provision of the constitution, and the acts of
congress passed in pursuance of it, the judgments and decrees of each
state would be regarded as foreign judgments in the courts of every
other state, and their effect would have to be determined by the prin-
ciples of international law or by such other considerations as are in-
fluential in fixing the status of judicial records brought from foreign
countries.*® A similar provision was found in the articles of confed-
eration, and it was construed as prohibiting a re-examination on the
merits of a decree rendered in a sister state.'*
18 Walling V. Michigan, 116 U. S. 446, 6 Sup. Ct 454, 29 L. Ed. 601; Webber
▼. Virginia, 103 U. S. 344, 26 L. Ed. 565 ; Vines v. State, 67 Ala. 73. See *'C(mr
mercc," Vent, Dig. § 1S4; "Constitutioiua Law,** Deo. Dig. (Key No,) { 207;
Cent. Dig. § 630.
!• Chicago & A. R. Co. v. Wiggins Ferry Co., 119 U. S. 615, 7 Sup. Ct 398,
30 L. Ed. 519. See ^'Evidence,** Deo. Dig. (Key No.) § S5; Cent. Dig. § 51.
20 Buekner v. Finley, 2 Pet 586, 7 L. Ed. 528 ; Warren Mfg. Co. v. Etna Ins.
Co., 2 Paine, 501, Fed. Gas. No. 17,206. See ''Judgment** Dec Dig. {Key No.)
H 81S-816; Cent. Dig. |§ U4S, UH, 1507.
21 Jenkins v. Putnam, 1 Bay (S. C.) 8, 1 Am. Dec 594. See ^'Judgment,** Dec
Dig. (Key No.) {| 814-816; Cent. Dig. {{ UUt 1488.
I 112) FUBUO AOIS AND JUDICIAL PROOBEDINOa. 297
In pursuance of the power given to congress to prescribe the man-
ner of authenticating the records and judicial proceedings of other
states, and the effect thereof, that body early passed an act which was
expressed as follows: "The records and judicial proceedings of the
courts of any state shall be proved and admitted in any other court
within the United States, by the attestation of the clerk and the seal
of the court annexed, if there be a seal, together with a certificate of
the judge, or presiding magistrate, as the case may be, that the said
attestation is in due form. And the said records and judicial proceed-
ings, authenticated as aforesaid, shall have such faith and credit given
to them in every court within the United States as they have by law
or usage in the courts of the state from whence the said records are
or shall be taken." A subsequent statute extended the provisions of
this act to "the territories of the United States, and the countries sub-
ject to the jurisdiction of the United States." ** This statute, it is
held, does not prevent a state from making such further rules, in re-
gard to the authentication of foreign judgments, as it may deem best,
provided only that they are not inconsistent with the act of congress.
Neither does the statute render it inadmissible to prove such a judg-
ment in a manner which would be sufficient at common law.'*
It is now finally and firmly settled that a judgment rendered by a
court of competent authority, having jurisdiction of the parties and
the subject matter, in one state, is conclusive on the merits in the courts
of every other state, when made the basis of an action, and in such
action the merits cannot be inquired into.'* Under this clause of the
constitution, therefore, the judgment of a court in a sister state is to
be accorded the same faith and credit which it receives at home. It
4S of a higher grade than a foreign judgment, for its effect is regelated
by the constitution. But yet it is not the same as a domestic judgment,
for it is not executory by itself. But the judgment, if valid at home,
is to be considered valid everywhere within the United States, and if
t2 Act May 26, 1790 (1 Stat 122 ; Rev. St U. S. S 905 [U. S. €k>mp. St 1901,
p. 6771) ; Act March 27, 1804 (2 Stat 29S).
St Gaines t. Relf, 12 How. 472, 13 L. Ed. 1071 ; White v. Burnley, 20 How.
235, 15 L. E<L 8S6. See **Evidence,'* Dec. Dig. (Key No.) $ $48; Cent. Dig.
II 1S69-1S8S; ''Judgment:' Cent. Dig. % 1U7.
s« Mills T. Duryee, 7 Granch, 481, 3 L. Ed. 411 ; Hampton v. McGonnel, 3
Wheat 234, 4 L. Ed. 378 ; McElmoyle v. Gohen, 13 Pet 312, 10 L. Ed. 177 ;
Gbrlstmas y. Russell, 5 Wall. 290, 18 L. Ed. 475; Mutual Life Ins. Go. t.
Harris, 97 U. S. 331, 24 L. Sd. 909. Sm '^JuOgmetU,*' Deo. Dig. (fey No.) |
&»; Cent. Dig. 1 1600.
298 INTBBSTATB LAW UNDBB THB CONSTITUTION. (Ol 9
binding on the parties at home, it is conclusive in all other courts in
the Union.* • But the judgment, as already stated, is not executory in
a foreign state ; that is, it does not per se authorize the issue of final
process or the exercise of auxiliary jurisdiction, but only when merged
in a new judgment recovered in the foreign state.** Again, judgments
of one state, when sought to be enforced in the courts of another, do
not enjoy the right of privilege, priority, or lien which they have in
the state where they are pronounced, but only that which the lex fori
gives to them by its own laws in their character of foreign judg-
ments.*^ And while the judgment is conclusive on the merits, yet it
is open to the party who desires to assail it to show that it is not in
effect a valid and subsisting judgment, such as is entitled to the benefit
of the constitutional provision. Thus, he may show that the judgment
has been set aside by the court which rendered it, or reversed by an
appellate court. Further, he may show anything which goes in dis-
charge of the judgment, as that it has been paid, or released, or com-
promised. Also he may show that the judgment, as a cause of action,
is barred by the statute of limitations of the state where the judgment
is sought to be enforced, if that statute is so framed as to include judg-
ments.** So also, the party may deny that the court which rendered
the judgment had jurisdiction of his person or of the subject matter
of the suit, and thereupon it becomes the duty of the court where
the record is offered to inquire into the allegation, and if it is found
that there was such a lack of jurisdiction, then the judgment must not
be enforced against him.** But the judgment is not impeachable in
36 Armstrong y. Carson, 2 Dall. 302, Fed. Cas. No. 643 ; Nations v. Johnson,
24 How. 195, 16 L. Ed. 628; Field v. Gibbs, 1 Pet G. G. 165, Fed. Cas. No. .
4,766 ; Bryant v. Hunter, 3 Wash. 0. G. 48, Fed. Cas. No. 2,068. Bee ^* Judg-
ment;' Dec, Dig. {Key No.) i 822; Cent. Dig. § U89.
2« Claflln V. McDermott (C. C.) 12 Fed. 375 ; Walser ▼. Seligman (O. G.) 18
Fed. 415. Bee **Judgmentr Deo. Dig. (Keg No.) S 823; Cent. Dig. S 1501.
2T McEImoyle y. Cohen, 13 Pet. 312, 10 L. Ed. 177; Story, Confl. Laws, |
600. Bee '^Judgment,'* Dec. Dig. {Key No.) $ 82S; Cent. Dig. | 149I.
2 8 McEImoyle ▼. Cohen, 13 Pet. 312, 10 L. Ed. 177; Napier v. Gldlero, 1
Speer, Eq. (S. C.) 216, 40 Am. Dec. 613 ; Reld y. Boyd, 13 Tex. 241, 65 Am. Dec
61; Jacquette y. Hugunon, 2 McLean, 129, Fed. Cto. No. 7,100. Bee 'Vtkl^-
ment,*' Dec. Dig. (Key No.) S 9S4; Cent. Dig. i 1765; ^'Limitation of Aotiona,'*
Dec. Dig. {Key No.) S 2; Cent'. Dig. § \.
20 D'Arcy y. Ketchum, 11 How. 166, 13 L. Ed. 648; Blschoff y. Wethered, 9
Wall. 812, 19 L. Ed. 829; Thompson y. Whitman, 18 Wall. 457, 21 L. Ed. 897;
Galpln y. Page, 18 Wall. 360, 21 L. Bd. 969 ; Cheeyer y. Wilson, 9 Wall. 106^
19 L. Ed. 604; Amott y. Webh, 1 Dill. 862, Fed. Gas. No. 662; Harrlfl r.
§ 112) PUBIIG ACTS AND JDDIGIAL PSOOEEDINOS. 299
the courts of another state on the ground of any mere error or irreg-
ularity, or upon any allegations that it was unjust or ill-founded. And
it seems also (though the point is not entirely free from doubt) that
fraud in the obtaining of the judgment is not a good defense, for the
party who desires to avoid it on the ground of fraud has his opportuni-
ty in the court which rendered the judgment, and it is there he must
avail himself of it.'*
The question of the validity and effect of judgments from another
state has most frequently arisen in cases where such judgments were
given against non-residents. Without attempting to discuss all the
various and interesting questions which are involved in this subject, *
it may be said, briefly, to be the accepted doctrine that the judicial
process of a state has no ex-territorial force or efHcacy; that such
process cannot be sent into another state and there served on a party
with the effect of legally obliging him to appear ; that in such case the
service amounts to no more than a constructive service ; that the same
consequences and no others attach to the service of process by pub-
lished advertisement; that in neither of these modes can the courts
of the state acquire such jurisdiction over the person of the defend-
ant as will authorize them to pronounce a personal judgment against
him ; that a personal judgment rendered in an action where the only •
service of process on the defendant was constructive, is not to be re-
garded as valid or binding in the courts of any other state. But since
each state has the right and power to legislate concerning the prop-
erty which is within its limits, and to provide for its submission to pay
the debts of its owner, it is held that where an action is begun against
a non-resident by the attachment of property within the jurisdiction
of the court, this will confer jurisdiction, not against the defendant
personally, but against the property attached, to the extent of author-
izing the court to render a judgment which may be enforced against
that property. And such a judgment, to that extent, is to be regarded
as valid and binding everywhere else.'* While the statute of limita-
tions of the state of the forum may be pleaded in defense, yet it would
Hardeman, 14 How. 334, 14 L. Ed. 444. Bee **Judffment,'* Deo, Dig. (Key Vo.)
I 818; Cent. Dig. U 1458-1481-
•0 Hanley t. Donoghue, 116 U. S. 1, 6 Sup. Gt 242, 29 L. Bd. 535 ; Ander-
son T. Anderson, 6 Ohio, 108; 2 Black, Judgm. $§ 916-^21. See **JudgmerU,**
Dee. Dig. (Key No.) S§ 819, 820; Pent. Dig. §§ 1482-1487, 1760.
ti See Pennoyer y. Neff, 95 U. S. 725, 24 L. Bd. 565 ; Cooper v. Reynolds, 10
WaU. 308, 19 L. Ed. 931 ; D* Arcy v. Ketcham, 11 How. 165, 13 L. Bd. 6i8 ;
Williams y. Armroyd* 7 Cranch, 423, 3 L. Ed. 392; Boswell y. Otis, 9 How.
300 INTBBSTATB LAW UNDBB THE CONSTITUTION. (C9l 9
not be competent for a state to so frame its law of limitations, with
respect to judgments from other states, as to effectually nullify them
by cutting oflE all remedy whatever. It is always within the constitu-
tional rights of parties to have a reasonable opportunity to enforce
their demands.'* A judgment rendered by a justice of the peace in
another state, although the court be not one of record, is a judicial
proceeding within the meaning of the constitution, and full faith and
credit is to be accorded to it.'* The federal tribunals are not regarded
as foreign to each other or to those of the several states. Hence the
judgment of a United States court, when sued on in a state court or
in another United States court, is entitled to full faith and credit, and
so are the judgments of the state courts when offered in the federal tri-
bunals.** And the same rule applies to the effect of the judgments of
the courts in the territories and the District of Columbia.* •
INTERSTATE EXTBABITIOH.
113. It U proTided By tlie federal eomstitntlom tha,t ^a person ekars^
ed in any state with treaaom, f elony» or other erime, ^rho
■hall flee from jnitiee and lie found in another «tnte» shall,
on demand of the ezeentive authority of the state from
which he fled, he delivered, np, to he renLOved to the state
having jnrisdiotion of the crime.**
114. To warrant the rendition of an alleged criminal nnder this
provision, it is requisite*
(a) That he shonld he charged with the commission of a crime
made pnnishahle hy the laws of the state demanding his
surrender.
336, 13 L. Ed. 164 ; Chase v. Chase, 6 Gray (Mass.) 157. See '^Judgment,'*
Dec. Dig. {Key No.) S 824; Cent. Dig. S$ 1U9, U50.
«2 Christmas ▼. Russell, 5 Wall. 290, 18 L. Ed. 475. See ''Judgment,'* Deo.
Dig. {Key No.) § 95-4; Cent. Dig. i 1765; "Limitation of Actions,** Dec. Dig.
{Key No.) S 2; Cent. Dig. | 4.
»8 Stockwell V. Coleman, 10 Ohio St. 33; Carpenter v. Pier, 80 Vt 81, 73
Am. Dec, 288 ; Glass v. BlackweU, 48 Ark. 50, 2 S. W. 257. See "Judgment,**
Dec. Dig. {Key No.) S 826; Cent. Dig. S U52.
»4 Crescent City Live-Stock Co. ▼. Butchers* Union Slaughterhouse Co., 120
U. S. 141, 7 »np, Ct 472, 30 L. Ed. 614 ; U. S. r. Dewey, 6 Hiss. 501, Fed. Cas.
No. 14,956; Amory v. Amory, 3 Bias. 266, Fed. Cas. No. 334, See "Judgment**
Dec Dig. {Key No.) || 828, 829; Cent. Dig. §S ISOJ^ISU.
86 Johnson v. Dohhlns, 5 Wkly. Notes Cas. (Pa.) 587; 2 Black, Judgm. | 938.
See "Judgment;* Dec Dig. {Key No.) ^ 829; Cent. Dig, i 1515.
§8 118-118) INTBBSTATB EXTRADITION. 301
(b) Tli*t lie Bkovld 1m a fnsitlTe from the jmstioe •£ ikat •tote,
(e) TlMt him rendltlofli ■konld Be demaaded hj thm eoieeoiitiTe aa-
tlu>rlt7 of tliat state.
(d> That the Teq«i«ltioii ehoiild he aeeoupaaied hy a eopy of am
indletmeat found asalnet him, or an aAdavit made before
a maffletrate ohargins him with havins eonunitted the erime
alleged.
<e) That he ehonld be arrested on the order or authorisation of
the ezeentiTO authority of the state on which the requisition
is made.
115< Both the federal and the state oonrts hare jnrisdiotiony on
habeas eorpns» to inqnire into the lawfulness of the ens-
tody in ^rhioh an allejged criminal is held on the ezecntion
of a requisition.
116. A person extradited from one state to another may be tried,
\ in the latter state, nut oady for the offense with which he
was charged in the requisition papers, but for any and all
criminal charges which that state may have against hini.
The articles of confederation contained a similar clause. It was in
the following words: "If a person j^uilty of, or charged with, treason,
felony, or other high misdemeanor in any state shall flee from justice
and be found in any of the United States, he shall, on demand of the
governor or executive power of the state from which he fled, be deliv-
ered up and removed to the state having jurisdiction of his offense." ■•
It is now regarded as settled doctrine that one nation cannot claim, as
a matter of general international law, and independently of treaty stip-
ulations, that another shall surrender up criminals fleeing from the
justice of its laws. And the criminal laws of a state have no operation
beyond its territorial bounds, and its jurisdiction to enforce them is
equally limited. Hence, but for the provisions of the federal constitu-
tion, no state would be under obligation to surrender to another state
any person within its borders. The right of asylum in each would
be as complete and inviolable as it is in independent nations in the ab-
sense of treaty stipulations.*^ This being the case, the undoubted
moral duty which rests upon the several states of the Union in this
regard could never be enforced if the matter had not been regulated by
the federal constitution. And especially is this true since the states are
forbidden to make treaties, and cannot, without the consent of con-
•• Articlefl of Confcd«ratlon, art 4, d. 2.
tr Kz parts McKnlght, 48 Ohio St 5S8, 28 N. B. 1034, 14 L. B. iu 128. Be^
"MmirUUUm^'* D^o. Dig. (Tey No.) { 21; Cent. Dig. I t$.
302 INTBB8TATB LAW UNDER THB CONSTITUTION. (Ql 9
gress, enter into any agreement or compact with each other. "The
uniform opinion heretofore has been that the states, on the formation
of the constitution, had the power of arrest and surrender in such
cases, and that so far from taking it away, the constitution has pro-
vided for its exercise contrary to the will of a state in the case of a
refusal, thereby settling, as among the states, the contested question
whether, on demand, the obligation to surrender was perfect and im-
perative, or whether it rested on comity and was discretionary." ••
This provision of the federal constitution, it is- said, is in the nature
of a treaty stipulation between the states of the Union, and is equally
as binding on each state and all the officers thereof for its faithful
execution as though it were a part of the constitution of each state.**
But it is still competent for the legislature of a state, in the exercise
of its reserved sovereign powers, and as an act of courtesy to a sister
state, to provide by statute for the surrender on requisition of persons
indictable for murder in such state, although they have never "fled
from justice." *•
It has never been fully decided whether this clause of the constitu-
tion intended to leave the regulation of interstate extradition wholly
to the individual states, or whether it was intended that congress
should pass laws to enforce the provisions of this article. But at a
very early day (1793) congress assumed to define the duties of the
states in this matter more explicitly than had been done in the consti-
tution itself. It was enacted that "whenever the executive authority
of any state or territory demands any person as a fugitive from jus-
tice, of the executive authority of any state or territory to which such
person has fled, and produces a copy of an indictment found, or an
affidavit made before a magistrate of any state or territory, charging
the person demanded with having committed treason, felony, or other
crime, certified as authentic by the governor or chief magistrate of the
state or territory from whence the person so charged has fled, it shall
be the duty of the executive authority of the state or territory to
which such person has fled to cause him to be arrested and secured,
and to cause notice of the arrest to be given to the executive authority
»• Holmes v. JennlBon, 14 Pet. 540, 597, 10 L. Ed. 579. See In re Fetter, 23 N.
J. Law, 811, 57 Am. Dee. 882. See *'EwtradiUon,*' Dec Dig. (Key 'So.) H 4.
eS; Cent. Dig. U 4* ^^7.
8» Hibler v. State, 43 Tex. 197. Bee '*BwtraditUm," Deo. Dig. {Key Jfo.) 1 22;
Cent. Dig. S 2f.
*• State Y. Han, 115 N. 0. 811, 20 S. B. 729, 20 L. R. A. 289, 44 Am. St
Rep. 501. Bee *'Ewtraditi<m,'' Dee. Dig. (Key No.) | SO; Cent. Dig. i St.
§§ 118-116) INTEBSTATB EXTRADITION. 803
making such demand, or to the agent of such authority appointed to
receive the fugitive, and to cause .the fugitive to be delivered to such
agent when he shall appear. If no such agent appears within six
months from the time of the arrest, the prisoner may be discharged.
Any agent so appointed who receives the fugitive into his custody shall
be empowered to transport him to the state or territory from which
he has fled." ** Since the constitution uses only the word "states,"
in providing for extradition, while the act of congress applies by its
terms equally to the 3tates and the territories, the question has been
raised whether the statute is not unconstitutional, in so far as it re-
lates to the extradition of fugitives from the territories, for want of
power in congress to prescribe it. But it has been ruled otherwise,
and it is held that the statute is valid and constitutional in all its mate-
rial parts.**
To authorize the issuance of a requisition, there must be an offense
charged which is punishable under the laws of the state from which
the requisition issues.*' But it need not be an offense known to the
common law; it may have been created by statute. And it need not
be an offense which was known and recognized as such at the time
of the adoption of the constitution, but may be of later creation. The
words, "treason, felony, or other crime," as used in the constitution,
include every offense forbidden and made punishable by the laws of
the state where the crime is committed.**
«i Rev. St U. S. if 5278, 5279 (U. S. Ck>mp. St. 1901, p. 8597).
42 Prigg y. Pennsylvania, 16 Pet 589, 10 L. Ed. 1060; Spear, Extradition,
232. For a criminal offense committed within the District of Columbia the
offender, if found beyond the District, may be removed there for trial. In
re Buell, 8 DUl. 116, Fed. Cas. No. 2,102. The governor of Porto Rico may
issue a requisition for the extradition of a fugitive from justice; this is
not international extradition, but interstate. In re Kopel (D. C) 148 Fed.
506 ; People v. Bin^am, 189 N. Y. 124, 81 N. E. 773, affirmed 211 U. S. 468,
29 Sup. Ct 190, 68 L. Ed. 286. But the Cherokee Nation is neither a "state"
nor a ''territory," as these words are used in the constitution. Hence the
constitution does not authorize the governor of a state to honor the demand
of the chief of the Cherokee Nation for the extradition of a fugitive. Ex
parte Morgan (D. a) 20 Fed. 29a Bee '^Bmtradition,*' Dec Dig. (Key No.)
H 25, 26; Cent. Dig. | £P.
4t Extradition Case, 9 Pa. Co. Ct R. 27. Bee **B9tradUion,'' Deo, Dig. {Key
Vo.) I £7; Cent. Dig. f SO.
44 Kentucky v. Dennlson, 24 How. 66, 16 K Ed. 717; Morton y. Skinner,
'48 Ind. 128; Brown's Case, 112 Mass. 409, 17 Am. Rep. 114; State v. Stew-
art 60 Wis. 687, 19 N. W. 529, 50 Am. Rep. 388; Commonwealth v. Hare,
86 Pa. Super. Ct 125. The term "diarged with crlm^' la used In a broad
304 INTBB8TATB LAW UNDBB THB CONSTITUTION. (GIl 9
To authorize the surrender of the alleged criminal, he must be a
"fugitive from justice." This phrase describes one who, having
committed a crime in one jurisdiction, flees therefrom in order to
evade the law and escape punishment.** But any person answers the
description who has committed a crime in a state and withdraws from
the jurisdiction of its courts without waiting to abide the consequences
of his act; and it is not material that some other cause than a desire
to "flee" induced such withdrawal.** "To be a fugitive from justice,
* * * it is not necessary that the party charged should have left
the state in which the crime is alleged to have been committed after
an indictment found, or for the purpose of avoiding a prosecution an-
ticipated or beg^n, but simply that having, within a state, committed
that which by its laws constitutes a crime, when he is sought to be
subjected to its criminal process to answer for his offense, he has
left its jurisdiction and is found within the territory of another." *^
One who goes from the state of his residence into another state, and
there commits a crime, and then returns home, is as much a fugitive
from justice as though he had committed a crime in the state in which
he resided and then fled to some other state.** The constitution and
laws apply only to crimes actually committed within the jurisdiction
of the demanding state, not to such as were only constructively com-
mitted there, when the offender was not, at the time of the crime, and
sense, and includes all persons accused of crime by legal proceedings, the
charge continuing until the person has been tried and acquitted, or, if con-
victed, until he has served out his sentence. Hughes v. Pflanz, 138 Fed. 980,
71 O. C. A. 234. A convicted felon, released from prison on parole, is charged
with crime and may be reclaimed from another state to which he flees.
Drinkall v. Spiegel, 68 Conn. 441, 36 Atl. 830, 36 L. K. A. 486. See **Ewtradi-
tion,*' Dec. Dig. (Key No.) J 29; Cent. Dig. § SO.
4» State V. Hall, 115 N. C. 811, 20 S. E. 729, 28 L. R. A. 289, 44 Am. St
Rep. 501. But where one left the state where he had committed a criminal
offense involving fraud, at the request and instigation of the persons de-
frauded, he is not a fugitive from justice. In re Tod, 12 S. D. 380, 81 N. W.
637. 47 L. R. A. 566, 76 Am. St Rep. 616. See ""Extradition** Deo. Dig. {Key
No.) f SO; Cent. Dig. § S2.
4« In re White, 55 Fed. 54, 5 C. C. A. 29. See "'Extradition^* Dec. Dig. {Key
No.) % SO; Cent. Dig. § S2.
47 Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ot. 291, 29 D. Ed. 544; Apple-
yard V. Massachusetts, 203 U. S. 222, 27 Sup. Ct. 122, 51 L. Ed. 161 ; In re
Bloch (D. O.) 87 Fed. 981 ; Ex parte Dickson, 4 Ind. T. 481, 69 S. W. 943.
See ''Extradition** Dec. Dig. {Key No.) § SO; Cent. Dig. S S2.
48 In re Roberts (D. O.) 24 Fed. 132 ; In re Keller (D. O.) 36 Fed. 681. Bm
^'Extradition;* Deo. Dig. (Key No.) | SOj Cent. Dig. I SB.
•
§§ 113-116) INTSB8TATE EXTRADITION. 306
has not since been, within that jurisdiction.*^ Hence where one has
been only constructively present in a state, by being deemed, by a legal
fiction, to have followed an agency or instrumentality put in motion
by him to accomplish a criminal purpose, he cannot be said to be a
fugitive from the justice of that state.'* A fugitive from justice who,
pending extradition, commits an offense against the laws of the state
of asylum, must answer for such offense before surrender to the state
demanding extradition.'^
It will be observed that the act of congress on this subject provides
that the requisition must be accompanied by "a copy of an indictment
found, or an affidavit made, before a magistrate of any state or ter-
ritory, charging the person demanded with having committed trea-
son, felony, or other crime.'' It is held that, within the meaning of
this statute, an information is not the equivalent of an indictment;
nor is the verification on belief of an information equivalent to such
an affidavit as is contemplated. '* If the prisoner is delivered up to the
authorities of the demanding state on a requisition based on a false
affidavit that he is a fugitive, he will be released on habeas corpus.''
When the requisition is regular, and proceeds from the proper au-
thority, and is accompanied by the necessary papers, in due and regu-
lar form, it is the duty of the governor upon whom the requisition
is made to surrender the fugitive. But this duty is left to his fidelity
*• Ex parte State, 73 Ala. 503 ; People v. Hyatt, 172 N. T. 176, 64 N. B.
825, 60 L. R. A. 774, 92 Am. St. R^. 706. See **Ewtradition,^ Dec. Dig, {Key
No.) i SO; Cent. Dig. % S2.
so Stote T. Hal], 115 N. C. 811, 20 S. B. 729, 28 L. R. A. 2S9, 44 Am. St.
Rep. 501. See *' Extradition,^* Dec. Dig. (Key No,) S SO; Cent. Dig. § S2.
Bi Ex parte Hobbs, 32 Tex. Cr. R. 312, 22 S. W. 1035, 40 Am. St. Rep. 782.
But a person cannot resist extradition on the ground that he is under con-
viction of a crime in the state where he is fonnd and is out on baU pend-
ing his appeal; for the governor of that state may waive the state's right
to punish the prisoner for his crime committed there. People ▼. Hagan, 34
Misc. Rep. 85, 69 N. Y. Supp. 475. But see In re Opinion of Justices to the
Governor and Ck>uncil, 201 Mass. 609, 89 N. B. 174. See "Extradition,'* Dec,
Dig. (Key No.) § SI; Cent. Dig. ( SS.
Bs Ex parte Hart, 63 Fed. 249, 11 0. C. A. 165, 28 L. R. A. 801. But see
Morrison t. Dwyer (Iowa) 121 N. W. 1064. But the indictment or affidavit
accompanying a requisition is sufficient if it conforms to the law of the state
where the otfense was committed. Webb v. York, 79 Fed. 616, 25 C C. A.
133. See **BwiradUion^** Deo. Dig. (Key No.) | St; Cent. Dig. H 96, S8.
»t Tennessee v. Jackson (D. C.) 36 Fed. 258, 1 L. IL A. 370. See **Habeas
Corpus" Dec. Dig. (Key No.) U 19, SO, 92; Cent. Dig. H 90, 91.
BL.001fBT.Ii.CSD.BD.)— 20
»
306 INTERSTATE LAW UNDER THE CONSTITUTION. (Oh 9
and moral sense. If he will not perform it, the courts have no power
to compel him by mandamus, nor is there any other way in which he
can be constrained/*
The courts have power, on habeas corpus, to review the decisions
of the executive authority in extradition proceedings. A person ar-
rested under a warrant of extradition from one state of the Union to
another is "in custody under or by color of the authority of the
United States," and hence the federal courts have jurisdiction to in-
quire by habeas corpus into and determine the legality of the same.'*
But their jurisdiction in this respect is not exclusive; it is concur-
rent with that of the state courts. Generally speaking, the courts will
not overrule the decisions of the governor, in extradition cases, unless
they are clearly satisfied that an error has been committed.** Thus,
on habeas corpus, the sufficiency of the indictment as a matter of tech-
nical pleading will not be inquired into.*^ Nor, in reviewing the ac-
tion of the executive in these proceedings, will the courts inquire into
the motives and purpose of the proceeding (as, whether it is really to
punish a crime or only to collect a debt), nor interfere with any matter
connected therewith which lies within the discretion of the governor.**
64 Kentucky v. Dennison, 24 How. 66, 16 L. Ed. 717. The duty of examining
extradition papers, passing on their yalidity, and issuing his warrant, de-
volTes on the governor personally and cannot he delegated. In re Tod, 12 S.
D. 386, 81 N. W. 637, 47 L. R. A. 566, 76 Am. St. Rep. 616. In the District
of Columhia, the chief Justice of the supreme court is charged with the same
duties in extradition proceedings as are imposed on the governors of the
several states. Hayes v. Palmer, 21 App. D. C. 450. A person demanded in
interstate extradition proceedings has no right to a hearing hefore the govern-
or on the question whether he has heen substantially charged with a crime
and whether he is a fugitive from justice. Munsey v. Clough, 196 U. S. 364,
25 Sup. Ct. 282, 49 L. Ed. 515. See ^^Extradition,'' Dec. Dig. {Key No.) H 26,
S5; Cent. Dig. f 28.
B 5 In re Doo Woon (D. O.) 18 Fed- 898; In re Roberts (D. C.) 24 Fed. 132.
See **Hab€as Corpus,** Dec. Dig. (Key No.) | lOS; Cent. Dig. U 90, 91.
B« Robb V. Connolly, 111 U. S. 624, 4 Sup. Ct 544, 28 L. Ed. 542; Ex parte
Reggel, 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. Ed. 250 ; Ex parte Brown (D. C)
28 Fed. 653 ; Hibler v. State, 43 Tex. 197 ; In re Robb, 64 Cal. 431, 1 Paa
881 ; Ex parte State, 73 Ala. 508. See "Extradition,** Dec. Dig. (Key No.) S
S9; Cent. Dig. I 45; **Hab€a8 Corpus,** Dec Dig. {Key No.) f lOS; Cent.
Dig. 11 90, 91.
«7 Pearce v. Texas, 155 U. S. 311, 15 Sup. Ct 116, 39 L. Ed. 164. See
'*Ha\>eas Corpus,** Dec. Dig. {Key No.) § lOS; Cent. Dig. U 90, 91.
B« In re Sultan, 115 N. C. 57, 20 S. E. 375, 28 L. R. A. 294, 44 Am. St Rep.
433. See **Habeas Corpus,** Dec Dig. {Key No.) I lOS; Cent. Dig. || 90, 91.
§§ 113-116) nfXEBSTAXS EXTRADITION. 307
It is generally provided by the extradition treaties made by this
country with foreign nations that a surrendered criminal can be tried
only for the specific off ense for which he was extradited. And if he is
tried and acquitted on that charge, or if he is not tried for that offense
at all, he has then the right to be set at liberty, and must be allowed a
reasonable time to return to the country from which he was taken, be-
fore being proceeded against on any other accusation.** And it has
sometimes been thought that the same principle should apply to extra-
dition as between the several states of the Union. But it is now
settled that, in the case of extradition from one state to another, the
prisoner has no right or claim to be afforded an opportunity of re-
turning to the state to which he first fled before being tried for an-
other and distinct offense from that designated in the requisition pa-
pers. In other words, when the state regains possession of the fugi-
tive, it may proceed at once to try him for any and all charges which
it may have against him.**
A fugitive from justice charged with crime will not be released
on habeas corpus because he was induced by a stratagem or trick to
come within territory where he could properly be arrested, provided
the stratagem used was not itself an infraction of law.** And even
if a person is kidnapped and forcibly brought back to the state where
his crime was committed, without any extradition or other regular
proceedings, this will give him a right to proceed against his abductor,
but it is no reason why he should not be tried by the courts of that
»• IT. S. T. Rauscher. 119 U. S. 407, 7 Sup. Ct 234. 30 L. Ed. 425. Bee '*EX'
tradition:' Dec. Dig. (Key No.) $ 19; Cent. Dig. S 2S.
«o Lasoelles v. Georgia, 148 U. S. 537, 13 Sup. Ct. 687. 37 L. Ed. 549; Peo-
ple V. Cross, 64 Hun, 348, 19 N. T. Supp. 271 ; Id., 135 N. Y. 536, 32 N. E.
246, 31 Am. St. Rep. 850; State v. Stewart, 60 Wis. 587, 19 N. W. 429, 50
Am. Rep. 888 ; Carr y. State, 104 Ala. 4, 16 South. 150 ; Petry v. Leldlgh, 47
Neb. 128, 66 N. W. 308 ; State v. Kealy, 89 Iowa, 94, 56 N. W. 283 ; State v.
MeNaspy, 58 Kan. 691, 50 Pac. 895. 38 L. R. A. 756; In re Walker, 61 Neb.
803, 86 N. W. 510 ; State v. Dunn, 66 Kan. 483, 71 Pac. 811 ; Taylor v. Com-
monwealth, 96 S. W. 440, 29 Ky. Law Rep. 714; Rutledge t. Krauss, 73 N.
J. Law, 397, 63 Atl. 988. But see State v. Boynton (Wis.) 121 N. W. 887.
Bee "Extrndition,'* Dec Dig. {Key yo.) S 41; Cent. Dig. { 52.
•i£x parte Brown (D. C.) 28 Fed. 653; Ex parte Baker, 43 Tex. Cr. R,
281, 65 a W. 91, 96 Am. St Rep. 871 ; Ex parte Moyer, 12 Idaho, 250, 85 Pac.
897, 12 L. R. A. (N. S.) 227, 118 Am. St Rep. 214. Bee "Extradition,*' Deo.
Dig. {Key No.) | 42; Cent. Dig. i 54*
308 INTERSTATE LAW UNDER THE CONSTITUTION. (Ch. 9
State for his offense against its laws.** Nor, in such a case, is there
any mode in which the state from which he was abducted, or the
prisoner himself, can demand and secure his restoration to that state,
under the constitution and laws of the Union.* •
«s Ker T. lUinols, 119 U. S. 436, 7 Sup. Gt 225, 30 L. Ed. 425 ; CJook y. Hart
146 U. S. 183, 13 Snp. Ot 40, 36 K Ed. 034 ; In re Mabon (D. G.) 84 Fed. 62S.
See "Extradition,** Dec. Dig, (Key No.) { 42; Cent. Dig. | 54.
•8 BCahoQ y. Justice, 127 U. S. 700, 8 Suik Ot 1204, 82 L. Bd. 288. Bee ^^Em-
tradUion*' Deo. Dig. (Key No.) | i»; Cent. Dig. I 54.
I
§§ 117-119) THB X8TABLI8HMSMT OF SSPUBLICAir QOYKBNMBHX. 809
THB DSTABLISHMBNT OF REPUBLICAN OOYERNMBMT.
117-119. Republican Goyemment Guarantied.
120. ReconstructioiL
117. Tkm federal eenetitiitiom vrovidee that 'Hke Uaited Statee ehall
ffvaraatee to everj state la this Uaioa a veyaUleaa f evat
ef Koreraflieat.**
118* A vepaBlieaa soTenuaeat le oae ia wUek the powere of eovev^
eisat7 are Teeted ia the people aad are eaereieed I17 tke
people, etther dlveetljt or tlwoash repreeeatatlTee ehoeoa I17
tlu> people, to wheat those powere are epoolaUj dolesatod*
119. This elaaao of the federal eonstitatioa taiplieo—
<a) A power im the federal aathorltiee to jj^reeerre, thoash aoi
ti^ereate, repahlieaa sorenuaeate ia ti&e soTeral statee.
(b) A Uadtatioa apoa the power of the people of eaeh state im
f onaias or aaieadia^ their state eoastitati<
Meaning of the Term,
No particular government is designated as 'Vepublican," neither is
the exact form to be guarantied in any manner especially described.
Here, as in other parts of the constitution, we are compelled to resort
elsewhere to ascertain what was intended. The guaranty necessarily
implies a duty on the part of the states themselves to provide such a
government. All the states had governments when the constitution
was adopted. In all, the people participated to some extent, through
representatives elected in the manner specially provided. These gov-
ernments the constitution did not change. They were accepted pre-
cisely as they were, and it is therefore to be presumed that they were
such as it was the duty of the states to provide. Thus we have unmis-
takable evidence of what was "republican" in form within the meaning
of the term as employed in the constitution.^ A republican form of
government, as distinguished from an autocracy, monarchy, oligarchy,
aristocracy, or other form of government, is one which is based on the
political equality of men. It is a government "of the people, for the
1 lilnor T. HapperMtt, 21 Wall. 176^ 22 L. Bd. 027.
310 THB BSTABLI8HMBNT OF REPUBLICAN QOVBBNMBMT. (Ch. 10
people, and by the people." Its laws are made either by the whole
people in a body (in which case the form of government is properly
called a "democracy") or by representatives chosen for that purpose
by the people. Its executive power is lodged in the hands of a chief
magistrate, elected by the people, directly or indirectly. It excludes
the idea of an hereditary ruler or class of rulers. But the idea of a
republic by no means involves the principle of universal suffrage. It is
not inconsistent with a republican government that the right to vote
should be restricted to adults, males, property owners, or those possess-
ing the elements of education. It is only necessary that the suffrage
should be generally extended to those deemed competent to exercise it,
or at least that it should not be so restricted as to exclude all but a
favored class from participation in political rights and privileges.
"By the constitution a republican form of government is guarantied
to every state in the Union, and the distinguishing feature of that
form is the right of the people to choose their own officers for govern-
mental administration, and pass their own laws in virtue of the legis-
lative power reposed in representative bodies, whose legitimate acts
may be said to be those of the people themselves." * "In a republic
all the citizens, as such, are equal, and no one can rightfully exercise
authority over another but by virtue of power constitutionally given
by the whole community, which authority, when exercised, is in effect
the act of the community. Sovereignty resides in the people in their
political capacity." •
Importance of the Guaranty.
"Without a guaranty, the assistance to be derived from the na-
tional government in repelling domestic dangers which might threaten
the existence of the state constitutions, could not be demanded as a
right from the national government. Usurpation might raise its stand-
ard and trample upon the liberties of the people, while the national
2 In re Duncan, 139 U. S. 449, 11 Sup. Ct 573, 35 L. ESd. 219 ; Eckerson v.
Des Moines, 137 Iowa, 452, 115 N. W. 177. The initiative and referendum pro-
Tlslons in some of the state constitutions are not In conflict with this provision
of the constitution, as In effect they simply reserve to the people a larger share
of legislative power. Kadderly v. Portland, 44 Or. 118, 74 Pac. 710 ; Ex parte
Wagner, 1 Okl. Cr. 148, 95 Pac. 435. See "ConsHtutional Law," Dec, Dig. (Key
No.) § 82; Cent. Dig. S U9; ''Elections,'* Dec Dig. (Key No.) i 120; "States,**
Dec. Dig, (Key No.) 14; Cewt. Dig. | ^.
8 Penhallow v. Doane, 3 Dall. 93, 1 L. Ed. 507. See ''States,** Dec. Dig. (Key
No.) S 4; Cent. Dig. i 2; "United States,** Dec Dig. (Key No.) i 5; Cent. Dig.
14.
§§ 117-119) REPUBLICAN OOYERNMENT QUARANTIED. 311
government could legally do nothing more than behold the encroach-
ments with indignation and regret. A successful faction might erect
a tyranny on the ruins of order and law, while no succor could be con-
stitutionally afforded by the Union to the friends and supporters of
the government." *
Extent of Federal Power.
The power and duty of the United States to guaranty a republican
form of government extends not only to the protection of the par-
ticular state whose government is threatened, for any cause, with
change, but also to the protection of all the other states in the Union.
Such is the relation between the several members of the American
Union that each has the strongest interest in the maintenance in all
the others of republican government. The prosperity, and in some
sense the safety, of each and of the whole depends upon the continu-
ance in each of those forms and institutions which have come to be
accepted as the American exposition of the system of republican gov-
ernment. Hence there might possibly be cases in which it would be
the right and duty of the federal government to interfere, even al-
though the particular state, or all its people, had no disposition to
invoke the protection of the guaranty. In effect, the guaranty does
not only contain a promise to each state that it shall continue to en-
joy a republican form of government as long as the Union endures,
but also it imports a command to each state to maintain and preserve
that form of government, under penalty of the intervention of the fed-
eral Union for the benefit of all its members. But "the authority
extends no further than to a guaranty of a republican form of govern-
ment, which supposes a pre-existing government of the form which
is to be guarantied. As long, therefore, as the existing republican
forms are continued by the states, they are guarantied by the federal
constitution. Whenever the states may choose to substitute other re-
publican forms, they have a right to do so, and to claim the federal
guaranty for the latter. The only restriction imposed on them is
that they shall not exchange republican for anti-republican constitu-
tions, a restriction which, it is presumed, will hardly be considered as
a grievance." "
«2 Story, Ck>nst | 1814.
• The Federalist, No. 21. The provision relates to the gOTemment of the
state at large, and not to the systems of local government provided by the
several states for their municipalities. Bckerson v. Des Moines, 137 Iowa, 492^
115 N. W. 177. See **State9r Deo. Dig. (Key No.) | 4; Cent. Dig. i t; **UnUed
States," Deo. Dig, (Key No.) | 5; OetU. Dig. | 4.
312 THB BSTABUSHMBNT OF REPUBLICAN GOVERNMENT. (Ch. 10
''Under this article of the constitution, it rests with congress to
decide what government is the established one in a state.* For as
the United States guaranty to each state a republican government,
congress must necessarily decide what government is established in
the state before it can determine whether it is republican or not.
And when the senators and representatives of a state are admitted into
the councils of the Union, the authority of the government under
which they are appointed, as well as its republican character, is recog-
nized by the proper constitutional authority. And its decision is bind-
ing on every other department of the government, and could not be
questioned in a judicial tribunal." ^
But this power vested in congress does not give it the right to regu-
late the elective franchise in the several states, or prescribe the qualifi-
cations of voters. It is true that a state might so limit the right of
suffrage as practically to restrict all participation in the government
to a favored class, and the effect of such a restriction would amount
to the establishment of an oligarchy or aristocracy, which would cer-
tainly be incompatible with a republican form of government. And
in this extreme case, it might be the duty of congress to interfere.
But while congress has the power to determine (and necessarily must
determine in any given case) whether the government actually existing
in a state is republican or not, it is not authorized to declare that uni-
versal suffrage is implied in the idea of a republican government or
that such and such restrictions of the right of suffrage are inconsistent
with such a form of government.*
A Limitation on State Power.
When a new state is to be admitted into the Union it is the right
and duty of congress, under this clause, to see to it that the form and
constitution of government proposed to be adopted is republican. And
the determination of congress to that effect, manifested by its admis-
sion of the new state, is final and conclusive. So, also, when the people
of an existing state undertake to revise or amend the constitution of
the state, their power in that regard is, as we have already seen, lim-
ited by the clause in question. It would not be lawful for them to
make such changes in their constitution as would amount to abolishing
• Frantz v. Autry, 18 Okl. 561, 91 Pac 193. See *Vonstitutional Law,** Dec
Dig. (Key No.) i 62; "Btates,** Dec, Dig. {Key No.) | 4; Cent. Dig. § 2.
7 Luther T. Borden, 7 How. 1, 12 L. Ed. f5SL See "States,** Deo. Dig, {Key
No.) i 4 ; Cent. Dig. § «.
• Pomeroy, Const. Law, S 210.
§ 120) BBCONSTRUOnON. 313
the republican form of government previously existing and setting
up in its place 4m unrepublican form or system.
The District of Columbuk
Since the District of Columbia is not a "state," it appears that thtf
United States is under no obligation to guaranty to the District or to
its inhabitants a republican form of government. And in fact, the
government of the District is not at all in the form of a republic, since
its residents have no voice in the selection of those who make their
laws, and no power to choose those who shall administer the laws.
BEOOKBTBUOTIOir.
ISO. la tke •zerelfle of ihm power sivoai by tliis elmuso of tko oonati*
tiitioB, ooBLSVos** *t tlio eloso off tlio Imto eivil irmr, mmdo pro-
vision ffor tlio reorsAslsation and restoration off lesitimato
SOTommente, repnbliean in fform^ in the states wliieli luid
passed ordinanees off seoession*
The constitutional authority of congress to pass the ''reconstruction
acts," for the restoration of legitimate governments in the states which
had joid^ in the lat^ rebellion, was derived from this clause.'
• Texas v. Wbite, 7 WaU. 700, 10 L. Bd. 227 ; Foster v. Daniels, 89 Qa. 89 ;
In re Hngbes, 61 N. C. 57. See "^States,*' Deo, Dig, (Key No.) | 4; OetU.
Die. I ».
314 BXBCUTIVB POWER IN THB 8TATB8. (CL 11
BJXECUTiyE POWER IN THB STATB&
121-128. State Execatlve Officers.
12^125. Independence of ExecutlT«i
126. Powers of Governor.
STATE BXEOUTIVE OFFIOERB.
121. Tke ezecvtiTe power im emeli of the states and territories is
lodged im » eUef mAsistrate, wko is ealled the '^Boremor.**
122. la B&ost of the states, there is a seeond ezeeiitiTe oBloer, ealled
the '^evtemant BOTemort** who is to sueeeed the Boremor
im his oflloe im ease of the death, resicaatiomy remoral, or
disability of the Utter.
123. The smbordimato oiBeers of a state Bovenuaemt, after the bot*
emor amd lievteaamt BOTormoTi are ordimarilj as follows t
(a) The seoretary of state.
0>) The state treasurer,
(e) The state eonptroller.
(d) The state auditor.
(e) The attorney s^neraL
(f) The svperintemdemt of pmblio iastruotioB*
The Governor,
In each of the states the chief officer of the executive department
is called the "governor." In all, he is elected directly by the people.*
His term of office varies, in the different states, from one to four
years, and the qualifications necessary to the holding of this office, as
well as its salary, are generally prescribed by the constitution.* He is
the official head of the state, and, generally speaking, is its represent-
1 But contested elections for the office of govemor are generally to be tried
and determined by the legislature. In re Senate Resolution, 83 Colo. 307, 79
Pac. 1009. Bee '^States,** Dec. Dig. (Key Ko.) HI; Cent. Dig, | 47,
s See Attorney General v. €k>mmon Council of City of Detroit, 112 Midi. 145,
70 N. W. 450, 87 li. R. A. 211 ; State v, Tlngey, 24 Utah, 225, 67 Pac. 88. The
private secretary to the goyemor, empowered to assist him in the labon of
hie office, according to an act of the legislature, is not authorized to discharge
the duties of the governor in his absence. Hager v. Sidebottom (Kj.) 118 S.
W. 870. See ''States** Deo. Dig. (Key No.) U 4h 50; Cent. Dig. { 47.
I
>
t
I
§§ 121-123) . 8TATE EXEGUTI7B OFFICaB& 816
ative in its relations with the other states and with the Union. In each
of the organized territories of the United States the executive power
is vested in a governor, appointed by the President by and with the
advice and consent of the senate, who holds his office for the term of
four years unless sooner removed by the appointing power,*
The Lieutenant Governor.
This officer, in all the states where the office exists, is elected by the
people. Where a vacancy in his office exists, it is in some states to
be filled by appointment made by the governor,* but in others the
president of the senate succeeds to the office." The functions of the 0 - ^
lieutenant governor are very limited. In most of the states he acts
as president of the senate and has a casting vote. He succeeds to the
office of governor upon the death, impeachment, resignation, or dis-
ability of the incumbent of that office, and becomes the permanent act-
ing governor of the state for the remainder of the term, or until the
disability of the governor is removed, and is entitled to draw the salary
of governor.' But this does not generally create a vacancy in the
office of lieutenant governor; the incumbent is vested with the au-
thority and performs the duties of governor, but remains officially
lieutenant governor.'' In states where this office does not exist, the
president of the senate is generally designated as the person to succeed
to a vacancy in the office of governor.*
The Secretary of State.
This officer is provided for by the constitutions of all the states.
He is generally the custodian of the great seal of the state and of
its public records and papers of every kind, as also of the laws or acts
• Rev. St U. 9. I 1841.
4 State T. Nasb, 66 Oblo St. 612, 64 N. B. 568 ; People v. Bndd, 114 Cal. 168,
46 Pac. 1060. 34 L. B. A. 46. See **8tates,'' Deo. Dig'^Key No.) ii 4^, 51;
Cent. Dig. U hS, 56.
» State V. Stearns, 72 Minn. 200, 75 N. W. 210. See "States,** Deo. Dig. (Key
Vo.) H 42, 51; Cent. Dig. H h8, 56.
• State T. La Grave, 23 Ner. 216, 45 Pac. 243, 35 L. R. A. 233. See "States;*
Dec. Dig. (Key No.) §S 42, 51; Cent. Dig. |i 48, 56.
T State V. Sadler, 23 Nev. 356, 47 Pac 450 ; State v. McBride, 29 Wash. 335,
70 Pac. 25. Otherwise in Colorado, where the president pro tempore of the
■enate performs the duties of lieutenant governor when the latter succeeds to
the office of governor. People v. Ck)rnforth, 34 Ck>lo. 107, 81 Pac 871. See
"States;* Dec Dig. (Key No.) |i 42, 51; Cent. Dig. §i 48, 56.
• Clifford T. Heller, 63 N. J. Law, 105, 42 AU. 156, 57 L. B. A. 312. See
"States,** Dec. Dig. (Key No.) | 41; Cent. Dig. S 47.
316 BXECUTIVB POWBR IN THB STATB8. (Ch. 11
of the legislature, which he is required to certify and publish, and al-
so, in some states, the decisions of the supreme courts and other
public documents.* He is generally required to countersign the com-
missions of state officers issued by the governor and to keep a record
of the same. He has important duties to perform with reference to
the chartering of corporations or their formation under the general
corporation law of the state, such as recording and filing their ar-
ticles of incorporation, which includes a preliminary determination
of their sufficiency and conformity to the state law, and issuing char-
ters or certificates of incorporation and certified copies thereof, and
keeping official lists of the corporations formed under the law of the
state, and carrying out the provisions of the law with reference to the
admission of foreign corporations to the state.** In a few states, this
officer succeeds the governor in case of the latter's death or disability ;
and this is also the law in the territories.*^
The State Treasurer,
This officer is charged with the receipt, custody, and disbursement
of the money of the state. He and his sureties are held to a very strict
measure of responsibility with reference to the safe keeping and proper
disbursement of the public funds;" and he is generally forbidden
by law to make any profit out of the management or investment of
such money, even such innocent profits as interest on state funds paid
• It iB part of the official duty of the secretary of state to prepare the copies
of the laws and journals for the printer. Anderson v. Lewis, 6 Idaho, 51, 52
Pac. 163. The passage of a statute In conformity to the constitution must be
proved either by the printed Journals of the legislature, or by the certificate
of the secretary of state, who is the official custodian of the laws. Happel v.
Brethauer, 70 111. 106, 22 Am. Rep. 70. The secretary of state cannot sell the
books of the state on credit, and if he does he is accountable for their pro-
ceeds as if sold for cash. State v. GhUton, 49 W. Va. 453, 39 S. B. 612. Fur-
ther as to the duties of the secretary of state, see State v. Dunbar (Or.) 96
Pac. 878, 20 L. R. A. (N. S.) 1015 ; Grant v. Lansdon, 15 Idaho, 342, 97 Pac
960. See '^States,*' Dec, Dig, (Key No,) M 75, 75. 76; Cent, Dig, H 74, 76, 77.
10 The secretary of state has no power to take an original certificate of in-
corporation filed in his office into another state for use in a prosecution pend-
ing there against the officers of the corporation for perjury in swearing to
such certificate. Delaware Surety Go. v. Layton (Del. Ch,) 50 Atl. 378. See
''States,'* Dec Dig. {Key No.) i 68,
1 1 State V. Grant, 12 Wyo. 1, 73 Pac 470 ; Rev. St U. S. § 184a See *
"States:* Dec Dig. {Key No.) SS 41, 51, 60; Cent. Dig. §S 47, 56, 6S.
12 State V. Bobleter, 88 Minn. 479, 86 N. W. 461; Stuart v. Nance, 28 Colo.
194, 63 Pac 823. Bee ''States," Dec Dig. {Key No,) U 75, 80; Cent. Dig. U
7d, 80, 81.
§§ 121-128) BTATB EXECI7TI7B OFFI0BB8. 317
by a bank in which they are deposited being for the use of the state,
though it is doubtful whether such lawful gains could be recovered
from the treasurer, at the suit of the state, in the absence of a law so
providing."
Subordinate State Officers.
. Although there is no absolute uniformity in the state constitutions
as to the ofikers composing the remainder of the executive depart-
ment, those enumerated above are the ones most commonly provided
for. In most of the states, all these officers are to be chosen by the
people at a general election.** But in some, certain of the executive
officers are appointed by the governor, and, in a few states, some of
them are chosen by the legislature. Where the constitution provides
that the executive department of the state shall consist of certain
eniunerated officers, its purpose is to provide for such executive offi-
cers as were deemed absolutely indispensable at the time the constitu-
tion was adopted, leaving it to the legislature to create new offices
when they became necessary, and to abolish the same. But the legis-
lature has no authority to abolish any of those enumerated in the con-
stitution.*' These state officers, it should be observed, occupy a posi-
tion very different from that of the heads of the executive depart-
ments of the United States. They do not form a cabinet or minis-
try to the governor. They are not generally chosen by him, nor
are they under his direction or control. Their duties and powers are
specifically marked out in the constitution, and they are not responsible
for their official acts to either the governor or the legislature, but only
to the people or the courts.**
Eligibility and Tenure of Office.
In some states it is provided by the constitution (in imitation of the
provision in the sixth section of the first article of the constitution of
the United States) that no member of the legislature shall be eligible
»• State v. Walaen, 17 Colo. 170, 28 Pac. 1119, 15 L. R. A. 458. See "States,"
Dee. Dig. (Key No,) H 75, 76, 80; Cent. Dig. %% 16, 11, 80, 81.
i« S«e State t. Thoman, 10 Kan. 191 ; Cuiiningham v. Sprinkle, 124 X. G.
638, 83 S. E. 138. See ''States;' Dec. Dig. {Key No.) S 46; Cent. Dig. | 51.
19 Parks V. CommisslonarB of Soldiers' & Sailors' Home, 22 Ck>lo. 86, 43 Pac.
542. See ^'States,*' Dec Dig. {Key No.) S U; Cent. Dig. | 49.
It But In several states there Is an "executive council,*' forming an advisory
cabinet to the sovernor and charged with certain specific duties, and in some
states certain of the officers enumerated above, such as the secretary of state,
the state auditor, etc., are ex officio members of this council. As to powers
and duties of the attorney general of a state, see State ▼. EhrUck, 65 W« Va.
318 EXECUTIVB POWER IN THE STATES. (Ch, 11
by appointment or election, during the term for which he was elected,
to any civil office in the state which shall have been created or the emol-
uments thereof increased during such term. It is held that this ineligi-
bility continues during the entire term for which the member was
elected, and he cannot render himself eligible by resigning his member-
ship in the legislature.*^ As to the provision occasionally found in
the state constitutions, that any state officer who shall accept a free
railroad pass shall forfeit his office, it is held that one cannot be de-
prived of his office on this ground imtil he has been adjudged guilty
by a court of competent jurisdiction in an appropriate proceeding for
that purpose.**
IHDEPEHDEHCE OF EXECUTIVE.
124. Tlie s<^enor is inTested with, tlioie powem, and eliArsed with
those duties, w^hloh, vader the Amerioam ayiteai, are resard-
ed as ezeovtlTe in their nature, ae disttncniehed from legia-
latiTe and Jndioial powers and dvtiee.
1S5. In the eneroiee of hie oonetitational powers, and in the dls-
eharge of his oonstitntional dnties* he is independent of the
other departments of soTomment and free frouL any. in-
terference or obstmetion on their part.
The constitutional principle which requires that the executive de-
partment of government shall be separate from the legislative and
judicial departments, and that the head of the one department shall
be free and independent in the exercise of his constitutional powers
from all control or interference of the others, has been fully consid-
ered in the chapter relating to the three departments of government,
to which the reader is here referred.
In regard to the manner of exercising those powers which the con-
stitution specifically confides to the governor, it seems that the legisla-
ture, while it cannot, under pretense of regulation, deprive the execu-
tive of any branch of his constitutional power, or unduly hinder him
in the exercise of it, may yet make rules for his governance in many
cases where his authority over the subject is not exclusive of that
700, 64 S. E. 935. As to those of the state auditor, see Dally v. State, 171
iDd. 646, 87 N. E. 4.
IT In re Members of Legrlslatnre, 49 Fla. 269, 39 South. 68. See '*State$,*'
Dec. Dig. {Key No,) § 47; Cent, Dig. i 52,
18 Sweeney v. Ck>iilter, 109 Ky. 295, 22 Ky. Law Rep. 885, 58 S. W. 7S4. Bee
'*Sftes," Deo. Dig, {Key No,) S 62; Cent. Dig, | ^7.
S&124r^l25) Il^DEPENDENCE OF EXECUTIVE. 819
of the legislature, or where the constitution has not furnished the ex-
clusive rule for the exercise of the power.
While the governor may be called to account, like any other citizen,
for the consequences of his private and personal acts, whether the
liability therefor is civil or criminal, yet he is not answerable in the
courts for any acts performed by him in his official capacity which are
political in their character or involve the exercise of his judgment and
discretion as governor.** For example, it being made the governor's
duty to issue a certificate of election to each person elected a represent-
ative in congress, the courts have no jurisdiction to enjoin the govern-
or from issuing a certificate to an applicant for it, or to compel him
to deliver a certificate to another person; for the official acts of the
executive can neither be restrained nor coerced by the courts.** Nei-
ther can he be compelled by the courts to appear and testify in relation
to matters pertaining to the exercise of his executive functions; nor
can he be constrained by attachment to disclose, in aid of an investiga-
tion before a grand jury, secrets of the business of the executive de-
partment which he does not consider it expedient to reveal.**
!• See pp. 12, 94, supra. And see In re Guden, 171 N. Y. 529, 64 N. E. 451 :
Moyer v. Peabody, 212 U. S. 78, 29 Sup. Ct. 235, 63 L. Ed. 410. In Eng-
lish law, an ordinary action cannot be maintained against the king. But
the subject may proceed by petition of right, which he may now by stat-
ute bring in any of the superior courts in which an action might have been
brought if it had been a question between private parties. This method of
procedure is illustrated in the Bankers* Case, 14 How. St Tr. 1. The governor
of an English colony is not exempt from being sued for his debts or torts,
but If judgment is given against him, his person is not liable to be taken
in execution while he is on servica Hill v. Bigge, 8 Moore, P. G. 465. See
** States,*' Dec. Dig. (Key No.) i 41; Cent. Dig. i 47.
20 Bates v. Taylor, 87 Tenn. 819, 11 S. W. 266, 8 L. R. A. 316. See **Man'
damut,** Dec. Dig. {Key No.) S 64; Cent, Dig. i 129; '^Injunction,** Dec. Dig.
(Key No.) § 75; Cent. Dig. S§ 14S, 144, 150; ''Constitutional Law,** Deo. Dig.
{Key No.) S§ 71-74; Cent. Dig. H 1SS-1S7.
31 Hartranft's Appeal, 85 Pa. 433, 27 Am. Rep. 667; Thompson v. German
Valley R. Co., 22 N. J. Eq. 111. The governor should not be required, by a
subpoena duces tecum, to produce in court papers which have been filed with
him in his executive capacity, and which are in the nature of petitions or
accusations against public officers and demands for their removal. Gray v.
Pentland, 2 Serg. & R. (Pa.) 28. See "CoMtitutional Law^** Dec Dig. (Key
No.) i 72; Cent. Dig. { ISS.
f ^ ^
320 ■ZBCUTIYB POWBB IN THB 8TATH8. (Ch. 11
POWEB8 OF GOVEBNOB.
126L The peww amd dutlei of a state sorenunr ara ovdlmavllj as
follows t
(a) He Is to take eare tkat tlie laws of tlie state are f aitlifally
sseoiited*ss
(b) He is to laf ona tke lesislatnre of tlie eeadltioa of tlie state,
and te reeoauaend svob aMasvres of leslslatioa as he deeau
aeeessary or Important,
(e) He wamj require laf ormatlom ftom tlie dlfPeremt oAeers of tlio
eaeeatiTe departnent vpom sabjeets relattag te the datles
of their respeetlTe oiAees.
(d) He has the power of appolntlBS eertain of the oAoers of the
state* and of remorlns ofloers for eanse.
(e) He is eommander In ehlof of the mlHtla of the state.
(f) He has the power to srant pardons for offenses against the
state, and reprleTes.
(k) He has the power to eonTene the leglslatvre In speelal
slon, and to adjonrn them In eertain eases,
(h) He has the power te Teto bills passed bj the lesislatnre*
Appointments to Office,
Although, as a rule, the governor has the power of appointing cer-
tain of the officers of the state, there is no unif(5'rmity, in the different
states, as to the officers who come within the appointing power of the
/' executive.** In some states, he has a very considerable power in this
respect. In others, nearly all the important officers of the state are
to be elected, leaving only inferior and subordinate offices to be filled
by the governor. For example, in some few states, the judges are
to be appointed by the governor, or by the governor and council.
But, as a rule, the system of an elective judiciary prevails throughout
ss See Henry v. State, 87 Miss. 1, 89 South. 856 ; In re Opinion of Justices,
74 N. H. 006, 68 Atl. 878 ; Rood v. Wallace, 109 Iowa, 6, 79 N. W. 449. By
virtue of this provision, he is empowered to Institute a suit for and In the
name of the state. State v. Huston, 21 Okl. 782, 97 Pac. 982. See ^'States;'
Dec. Dig. {Key No.) ff 41, Z02; Cent, Dig. i§ 47. m.
ss See, In general. Attorney General v. Bolger, 128 Mich. 355, 87 N. W. 366;
In re Railroad Commissioner, 28 R. I. 602, 67 AtL 802 ; Ck>x v. State, 72 Ark.
94, 78 S. W. 756, 106 Am. St Rep. 17 ; Dust r. Oakman, 126 Mich. 717. 86 N.
W. 151, 86 Am. St. Rep. 574; State v. Bristol, 122 N. C. 245, 30 S. E. 1;
Monash v. Rhodes, 11 Ck>lo. App. 404, 58 Pac 236 ; State v. Grlffen, 69 Minn.
311, 72 N. W. 117; Peoplejr. Nye, ft Cal. Anp. 148. Q^ Pap 241; Daniels v.
State, 15 Idaho, 640, 98 Pac. 853. See "States;* Dec Dig. (Key No.) |S 46, 51;
Cent. Dig. §§ 51, 5$.
g 126) FOWBBS OF OOYBBNOB. 821
the country. In some states, appointments made by the governor are
to be confirmed by the senate or council ; and, although the power of . /;
appointment is constitutionally vested in the governor, the legislature
may provide that his nominations to office shall be confirmed by the
senate.** The courts will not pass on the question whether the gov-
ernor, in removing a public officer whom he had the power to remove,
acted improperly and without cause.* • But where the constitution
gives him power to remove an officer only "for cause," his proceedings,
in removing such officer, may be reviewed by the courts on certiorari,
since the governor's action is judicial in its nature; but, out of respect
for the chief executive, this writ should not issue against him if there
is any other remedy.**
Commanding Militia,
The governor is commander in chief of the militia of the state, and
his authority in this respect is interrupted only when the state troops
are called into the actual service of the United States, in which case,
by a provision of the federal constitution, the President becomes
commander in chief. As commanding the militia, the governor has
the power to recruit or fill up the active militia of the state to the maxi-
mum limit fixed by statute, and also to disband or muster out, at any
time, any company thereof.*^ The governor being invested with au-
thority to call out the militia to suppress insurrections, his determina-
tion that an insurrection exists and that the intervention of the militia
is necessary to quell it is not subject to review by the courts.**
s« State T. Bouclier, 8 N. D. 389, {S6 N. W. 142, 21 L. R. A. 539. And see
Harrin^qn v. Pardee. 1 Cal. App. 278, 82 Pac. 83 ; Dust v. Oakman, 126 Biflch.
717, 86 N. wr 151, 86 Am. St. Rep. 574. See *' States,*" Dec. Dig. (Key No.) I
46; Cent, Diff. | 61; "^Constitutional Law^ Deo. Dig. {Key No,) S 68; Cent.
Dig. I 88.
tB State T. Rost, 47 La. Ann. 58, 16 South. 776. As to the governor's power
of removal from office in general, see State v. Peterson, 50 Minn. 239, 52 N. W.
655; State v. Cheetham, 19 Wash. 380, 58 Pac. 849; Benson v. People, 10
Colo. App. 175, 50 Pac. 212. See "Constitutional Law,'* Deo. Dig. (Key No.)
I 75; Cent. Dig. 1 1S7; ""States," Dec. Dig. (Key No.) S 62; Cent. Dig. § 57.
*• In re Nichols, 6 Abb. N. C. (N. Y.) 474. And see Yoe v. Hoffmun, 61 Kan.
265, 50 Pac. 351. See ""Certiorari,** Dec. Dig. (Key No.) f t6; Cent. Dig. § 68;
"*8tates,** Dec Dig. (Key No.) § 52; Cent. Dig. 8 57.
ST Lewis V. Lewelllug, 53 Kan. 201, 36 Pac. 851, 28 L. R. A. 510. See ""Mili-
tia,** Dec Dig. (K^ No.) | S; Cent. Dig. § 5. ...
SB In re Moyer, 85 Colo. 150, 85 Pac. 190, 12 L. R. A. (N. S.> 979, 117 Ain.
St Rep. 180. See *"Constituiionai Law,** Dec Dig. {Key No.) | 75/ CmU. Dig.
H ISJhlSe.
BuCeNBT.L.(8D.BD.) — 21
f
/
322 BXECUTITB POWER IN THE STATES. (Ch. 11
Pardons and Reprieves,
In many of the states, the power to grant pardons and reprieves is
not confided to the governor alone, but is to be exercised by a court
of pardons, or board of pardons, of whom the governor must be one.
The pardoning power was a branch of the royal prerogative in Eng-
land, and has always been regarded, both in that country and in this,
as an executive function. Nevertheless, parliament has always claim-
ed, and sometimes exercised, the right to pass acts of general amnesty,
and this example has occasionally been followed in America. The
true doctrine seems to be that the right to accord a pardon for a spe-
cific offense to a designated individual is purely an executive power,
while it remains competent for the legislative authority to proclaim
an act of general amnesty or oblivion for all past offenses of a given
class, or growing out of a given event or series of acts, without un-
dertaking to designate the individuals who may profit by it.**
"The distinction between pardon, amnesty, and reprieve seems to
be that pardon permanently discharges the individual designated from
all or some specified penal consequences of his crime, but does not af-
fect the legal character of the offense committed ; while amnesty oblit-
erates the offense, declares that government will not consider the thing
done punishable, and hence operates in favor of all persons involved
in it, whether intended and specified or not; and reprieve only tem-
porarily suspends execution of punishment, leaving the legal character
of the act unchanged and the individual subject to its consequences
in time to come." ••
2* See State t. Blalock, 61 N. a 242 ; State v. Nichols, 26 Ark. 74, 7 Am.
Rep. 600. See "Conetitutional Law,** Deo. Dig. {Key No.) f 58; Cent. Dig. |
87; ""Pardon,'* Dec Dig. {Key No,) 14/ Cent. Dig. S| |-^^.
so Abb. Law Diet ''Pardon." And see State v. Finch (Or.) 108 Pae. 505.
"'Pardon' and 'amnesty' are not precisely the same. A pardon is granted
to one who Is certainly guilty, sometimes before, bat nsually after, convic-
tion ; and the conrt takes no notice of it unless pleaded or in some way claim-
ed by the person pardoned ; and it is nsually granted by the crown or by tiie
executive. But amnesty is to those who may be guilty, and is usually grant-
ed by parliament or the legislature, and to whole classes, before triaL Am-
nesty is the abolition or oblivion of the offense; pardon is its forgivenesa'*
State v. Blalock, 61 N. C. 242. Except in so far as permitted by the con-
stitution, the governor cannot grant a reprieve or fix the day for the execu-
tion of a sentence, as that is a judicial power. Clifford ▼• Heller, 68 N. J.
Law, 106, 42 Atl. 155, 57 L. R. A. 812. Bee **Pardon,** Deo. Dig. {Key No.) »
i-4* llj Cent. Dig. if 1-^^, £f-26; "CoiMtUtUtonol Laio/' Deo. Dig. (fey No,}
I 79; Cent. Dig. i Ht.
§ 126) POWERS OF GOYERNOB. 323
Pardons are of two sorts, — ^absolute and conditional. It was a
rule of the common law that the king, in granting a pardon, might
annex to it any condition, precedent or subsequent, on the perform-
ance of which the validity of the pardon would be made to depend.**
In our state constitutions this is generally provided for by granting
to the executive the power to grant pardons "upon such terms as he
shall think proper," or in words of similar import. Even without
this specification, it would undoubtedly be competent for the governor,
possessing general power to accord pardons, to annex conditions to
the grant of a pardon, the only restriction being that the condition
must neither be illegal, immoral, nor impossible to be performed.
Thus, it is permissible for the governor to grant a pardon upon condi-
tion that the convict will leave the state and never return to it,** or
that the convict shall totally abstain from the use of intoxicating
liquors for five years.** Nonperformance of the condition annuls
the pardon. That is, in the case of a condition precedent, if the con-
vict does not perform it, the pardon never takes effect; and in the
case of a condition subsequent, if it is not performed, the pardon be-
comes void, and the original sentence remains in full force and may
be carried into effect.** Whether the condition has been kept or broken
is a question of fact. And in some states it is held that a convict
cannot, on the mere order of the governor, be arrested and remanded
to suffer his original punishment because of an alleged nonperform-
ance of the condition ; but he is entitled to' a hearing before a court,
and an opportunity to show that he has performed the condition of
his pardon, or that he has a legal excuse for not having done so.**
But the general rule is that it rests with the governor alone to de-
termine the fact of a breach of the condition, and to order the rearrest
of the convict,**
•1 4 BL Ck>nun. 401.
•s State T. Wolfer, 68 Minn. 18S, 54 N. W. 1005, 10 L. R. A. 788, 39 Am. 8t
Rep. 582 ; State v. Barnes, 82 S. C. 14, 10 S. B. 611, 6 L. R. A. 743, 17 Am. St
Rep. 882. See "Pardon,** Dec, Dig. {Key No.) | U; Cent, Dig. U U-^1.
•s People T. Bums, 77 Hun, 92, 28 N. Y. Snpp. 800. See ''Pardon,** Dec Dig.
{fey Vo.) S U; Cent. Dig. i 28.
•« Flaveirs Oaee, 8 Watte
99 Fee 868, 20 L. R. A. (N.
Vent. Dig. H 99^1-
t» State ▼. Wolfer, 58 Minn. 135, 54 N. W. 1065, 19 L. R. A. 788, 39 Am. St
Rep. 582; People v. Moore^ 62 Mich. 496, 29 N. W. 80. See ''Pardon,** Deo,
Dig. (Key No.) S U; Cent. Dig. I SI.
•6 Woodward ▼. Murdod[« 124 Ind. 439, 24 N. B. 1047; Bz parU Marke, M
t
. I «8.
tte ft S. (Pa.) 197. iyid. see. BK parte Kellj j(Gal4 -/
r. S.) 387. See "Pardon,** Dee. Dig. (Key. No.) | U; '
324 ■ZBCUTIVB POWER IN THB STATB8. (Ch. 11
A pardon is a deed, to the validity of which delivery is essential,
and delivery is not complete without acceptance. It may be rejected
by the person to whom it is tendered, and, if it is rejected, there is no
power in the courts to force it on him.*^ A pardon, to be available
in subsequent judicial proceedings, must be pleaded. But a general
act of pardon and amnesty promulgated by a public proclamation of
the President of the United States has the force of law, and will be
judicially noticed by the courts; it need not be specially pleaded by
one seeking to take advantage of it.*' A pardon once delivered by
the executive authority, and accepted by the grantee, cannot be re-
voked by the authority which granted it.**
Where the effect of a conviction for felony is to disqualify the con-
vict as a witness, a full and unconditional pardon for such a crime
completely restores his competency as a witness, although it may be
stated in the pardon that it was given for that very purpose.** A
pardon granted by the President restores the convict to the rights and
privileges of a citizen of the United States; but it does not, without
the assent of the state, where the sovereign power had excluded him
from political rights, restore him to the exercise of those rights.*^
The pardon will relieve the grantee from all further liability under
his original sentence, and also will bar any civil proceedings for any
penalties or forfeitures incurred by the same specific acts on which
the criminal prosecution was based.** But it will not entitle him to a
restitution of the fine or costs paid, nor to indemnity for any part of
the penalty which he may have paid or suffered. A pardon is not re-
Oal. 29, 28 Pftc. 109, 49 Am. Rep. 684 ; Ex imrte Kennedy. 185 Mass. 48. See
**Pardon,*' Dec. Dig. (Key ^o.) | U; Cent. Dig. $S SO, 31.
*t U. S. V. WUson, 7 Pet 150, 161, 8 L. Ed. 640 ; People v. Frost, 117 N. Y.
Supp. 524, 133 App. Div. 179. See "Pardon," Dec. Dig. (Key No.) S 8; Cent.
Dig. J 15.
a 8 Jenkins v. CoUard, 145 U. S. 546, 12 Sup. Ct 868, 36 L. Ed. 812. See
**Pardon," Dec. Dig. {Key No.) i 15; Cent. Dig. S 32.
sBRosson V. State, 23 Tex. App. 287, 4 S. W. 897; Knapp v. Thomas, 39
Ohio St. 377, 48 Am. Rep. 462. fifee "Pardon,** Dec. Dig. (Key No.) i 10; Cent.
Dig. 8 23.
*o Boyd V. U. S., 142 U. S. 450, 12 Sup. Ot 292, 35 L. Ed. 1077 ; Hoffman
V. Ooster, 2 Whart. (Pa.) 453. See "Pardon,*' Dec. Dig. (Key No.) | 9; Cent.
Dig. S§ 16-22.
41 Ridley v. Sherbrook, 8 Gold. (Tenn.) 569. See "Elections,*' Deo. Dig. {Key
No.) S 94; Cent. Dig. J 91.
*« U. S. V. McKee, 4 Dill. 128, Fed. Ca& No. 15,088. See "Pwdon," Deo.
Dig. (Key No.) | 14; Cent. Dig. i £2.
S 126) POWXBS OF G07BBN0B. 826
trospective/* And, further, the remission, by pardon, of a fine or
forfeiture cannot divest an interest in either which, by law, has vested
in private persons. So far as the public is interested in a fine or pen-
alty, the executive remission has the effect to restore it, but, so far
as a citizen has a vested right in it, it is beyond the power of the ex-
ecutive.** The recital of a specific distinct offense in a pardon limits
its operation to that offense, and such pardon does not embrace any
other offense for which separate penalties and punishments are pre-
scribed.*"
A contract with an attorney at law that the latter shall endeavor to
obtain a pardon, and that, if he is successful, a stipulated sum shall
be paid for his services, is not in itself illegal.** But a pardon pro-
cured by fraud upon the pardoning power, whether by suppression
of the truth, misstatement, suggestion of falsehood, or any other im-
position, is absolutely void.*^ A pardon granted by one who is de
facto the governor of the state is valid, notwithstanding that he has
not a perfect title or evidence of title to the office.**
Convening and Adjourning Legislature.
Whether or not an occasion exists which demands a special session
of the legislature is a matter resting entirely in the judgment of the
executive.** In some of the states it is specially provided in the con-
stitution that, when the legislature is called together in special session
by the governor, they shall not consider or act upon any subject save
that for which they were assembled, or which may have been pre-
sented to them by a special message from the governor. Such a pro-
vision^ it is held, requires that the subject for l^slation shall be
«s Cook y. Board of Chosen Freeholders of Middlesex County, 26 N. J. Law,
826. See **Pard<m;* Deo. Dig. (Key No.) | I4; Cent. Dig. M 20^22.
«« In re Floumoy, 1 Ga. 606 ; 4 BI. Comm. 399. Bee "Pardon,'* Dec. Dig.
{Key No.) S U; Cent. Dig. | 20.
«B Ex parte V^eimer, 8 Blsa 321, Fed. Oas. No. 17,362. See **Pard<m,*' Deo.
Dig. {Key No.) S U; Cent. Dig. 1 16.
*• Moyer v. Cantleny, 41 Minn. 242, 42 N. W. 1060. Bee **Contraois,** Dee.
Dig. {Key No.) i 129; Cent. Dig. | 629.
4T Rosson T. State, 23 Tex. App. 287, 4 8. W. 897; 4 Bl. Comm. 400. Bee
'^Pardon,*' Deo. Dig. {Key No.) § 8; Cent. Dig. | U.
«• E2x parte Norrla, 8 S. C. 408. See '^Pardon^*' Dec Dig. {Key No.) | 4;
Cent. Dig. I 4.
«• In re Teto Power, 9 Colo. 642, 21 Pac. 477; FarreUy v. Cole, 60 Kan.
366, 56 Pac 492, 44 L. R. A. 464; State v. Fair, 35 Wash. 127, 76 Paa 731,
102 Am. St Rep. 897. Bee '^ConetUutionaX Lwio,** Deo. Dig. {Key No.) I 7f /
Cent. Dig. H ISJhlSO.
326 BXBCUTIVB POWBR IN THB STATES. (Ch. 11
presented to the legislature by the governor in writing.'* The business
to be transacted at the special session is to be specially named in the
executive proclamation or message, but is not to be particularly de-
scribed in all its details. The legislature cannot go beyond the limits
of the business specially named; but within such limits it may act
freely, in whole or in part, or not at all, as it may deem expedient. '^
And, where there is no such constitutional restriction, the power of
the legislature, when so specially convened, is not limited to consid-
ering the special subjects which prompted the call, but they may act
on any subject, as at a regular session."* When the constitution gives
the governor power to adjourn the legislature in case of a disagree-
ment between the two houses, it is for him alone to decide whether
cause exists for the exercise of his power in this regard, and the
courts cannot review his decision.'*
Executive Approval or Rejection of Bills.
The state constitutions provide that every bill which shall have
passed the two houses of the legislature shall be submitted to the
governor. If he approves it, he shall sign it; if not, he shall return
h, with his objections, to the house in which it originated. Under
this provision, the bill must be laid before the governor, or the per-
son who for the time being is acting as governor, personally, for his
revision; it is not enough that it may be left at his office.'* Even
when a bill, on its passage through the legislature, receives a larger
majority of votes than would be sufficient to pass it over the govern-
or's veto, it must be submitted to him for his consideration. He is
a part of the lawmaking power of the state, and no act can become
a law until he has had the opportunity of considering it. If it seems
useless to send to the governor a bill which has already been voted
for by more members than would suffice to override his veto, it should
be remembered that he gives his reasons for the veto, and those rea-
•0 Manor Oasino v. State (Tex. Civ. App.) 84 S. W. 760. See "Statutes,**
Dec. Dig. {Key No.) § 5; Cent. Dig. $ 4.
Si In re Governor's Proclamation, 19 Oolo. 833, 35 Pac. 530; In re Liklns,
228 Pa. 456, 72 Atl. 858. See ^'Statutes;* Dec. Dig. {Key No.) ^ 5; Cent. Dig.
8« Morford v, Unger, 8 Iowa, 82. See ''Statutes,'* Dec. Dig. {Key No.) %
5; Cent. Dig. i 4.
9s,In re Legislative Adjournment, 18 R. I. 824, 27 Atl. 324, 22 L. R. A. 716.
See ''States** Dec. Dig. {Key No.) i S2; Cent. Dig. i iO.
B4 Opinion of Justices, 99 Mass. 636. See "Statutes," Dec. Dig. {Key No.)
I 27; Cent. Dig. i 29.
§ 126) POWERS OF QOVSBNOB. 327
sons may be sujfficient to change the vote in one or the other house
when the bill is again considered by them.** A bill which has been
sent to the governor may be amended by the legislature within the
ten days allowed him for its consideration, but before he has taken
action upon it.** But in some states it is held that, when the bill is
in the hands of the governor, it is so far beyond the control of the
legislature that neither house alone can recall the bill, and it is doubt-
ful whether this could be done by the joint action of both houses.*'
In Colorado, however, it is said that there is no constitutional objec-
tion to the legislature's requesting, by joint or concurrent resolution,
the return of a bill in the hands of the governor. He need not com-
ply with such a request, but there is nothing to prevent him from re-
turning the bill as requested, for reconsideration and amendment by
the legislature. ••
The governor usually has ten days within which to determine upon
his approval or veto of a bill. In computing this time, either the day
on which the bill was received by him or the day of its return is to
be excluded; but one is to be included. And, where the last of the
ten days falls on Sunday, he may return the bill on the following
day.** In Vermont, it has been held that when the governor once
intentionally and understandingly signs a bill it becomes a law, and
it is not divested of that character though he afterwards erases his
signature, intending to affix it in another place, but fails to do so.**
But in Illinois the doctrine is that, during the time allowed him, the
governor may sign the bill, and then erase his signature, at pleasure.
"Until it has passed from his control by the constitutional and cus-
tomary modes of legislation, he may reconsider and retract any ap-
proval previously made." *^ Notwithstandinjg some difference of opin-
es State y. Crounse, 86 Neb. 835, 55 N. W. 246, 20 L. R. A. 265. See **8tat'
utei,** Dec. Dig. (Key No.) § 26; Cent. Dig. f 28.
s« McKenzie y. Baker, 88 Tex. 669, 82 S. W. 103a See "Statutes,*' Deo.
Dig. {Key No.) | 16; Cent. Dig. f 15.
BT People y. Deylin, 83 N. Y. 269, 88 Am. Dec. 877. See. "StatuteSf** Deo.
Dig. {Key No.) | 28; Cent. Dig. ( SO.
••In re Recalling Bills, 9 Colo. 680, 21 Pac. 474. See "Statutes,"" Deo,
Dig. {Key No.) f 28; Cent. Dig. § SO.
•• In re Oomputation of Time, 9 Colo. 682, 21 Paa 475. See "Statutes,*"
Dec. Dig. (Key No.) | 29; Cent. Dig. § SI.
•0 National Land & L. Co. y. Mead, 60 V t 257, 14 AXL 689. See "Statuses,**
Dec Dig. {Key No.) f SI; Cent. Dig. f SS.
•1 People y. Hatch, 19 111. 283. See "Statutes,** Deo. Dig. iKey No.) | $lj
Cent. Dig. | 55.
328 ■ZBCUTIYE POWBB IN THB STATES. (Ch. 11
ion, it may be regarded as the now prevalent doctrine that the power
of the governor to approve and sign a bill presented to him within
ten days previous to the adjournment of the legislature does not cease
with the adjournment, but he may sign the bill after the adjournment,
and it thereupon becomes a law.** Unless the constitution so provides,
it is not incumbent upon the governor to return to either house of the
legislature any bill or act after it has received his approval and sig-
nature; if he reports to either house his approval of the bill, it is a
matter of courtesy only.*' Subsequent approval of an act by the gov-
ernor does not dispense with requisites which must exist in order to
confer authority on the legislature to pass the act.**
If the governor does not approve the bill, he is to return it, with his
objections, to the house in which it originated. This return is usually
and properly made by an executive messenger. If the governor, hav-
ing announced his intention of vetoing a bill, delivers it to the member
who introduced it, on his representation that it was recalled by the
house for reconsideration, and the member hands it to private inter-
ested parties, it does not become a law under the constitutional pro-
vision that if the governor shall not return a bill within ten days it
shall be a law in like manner as if he had signed it.** If the constitu-
tion gives the governor power merely to return the bill with his ob-
jections (that is, to veto the bill as a bill), he must treat it as a whole.
He cannot disapprove of one item in an appropriation bill and approve
all the rest. If he attempts to do this, the bill will be considered as
approved as a whole, and every part of it will become law.** When
the veto power is given to the governor, it is checked by a provision
that bills vetoed by him may be passed over his veto by a prescribed
•2 People v. Bowen, 21 N. Y. 517; Solomon v. Commissioners, 41 Qa. 157;
State V. Board of Sup'rs of Coahoma County, 64 Miss. 358, 1 South. 501.
Compare Hardee v. Gibbs, 50 Miss. 802; Fowler y. Pelrc», 2 Cal._165. . See
*'Btatute8,** Dec. Dig. (Key No.) § SO; Cent. Dig. \ S2.
«« State V. Whlsner, 35 Kan. 271, 10 Pac. 852. Bee *' Statutes** Dec Dig.
{Key No.) § SI; Cent. Dig. i SS.
«* Manor Casino v. State (Tex. Civ. App.) 84 S. W. 769. See "Statutes,**
Deo. Dig. (Key No.) § 52; Cent. Dig. i 50.
«B McKenzie v. Moore, 92 Ky. 216, 17 S. W. 483, 14 L. R. A. 251. See "Stat-
utes,** Dec. Dig. (Key No.) §S 28, 29, S4; Cent. Dig. H SO, SI, S7.
«« Porter v. Hughes, 4 Ariz. 1, 32 Pac. 165. But in Texas, and perhaps
some other states, the constitution provides that the governor may object to
one or more items of an appropriation bill and approve the rest See Pickle
V. McGall, 86 Tex. 212, 24 S. W. 265 ; May v. Topping, 65 W. Va. 656* 64 S. E.
848. See "Statutes,** Deo. Dig. (Key No.) | SS; Cent. Dig. S SB.
§ 126) FOWSB8 OF OOYSBNOB. 329
majority of the members of both houses. It is held that a bill after
being so passed over the veto, need not be again signed by the pre-
siding officers of the two houses ; such passage makes it ipso facto a
law/^
Executive Construction of Laws.
The executive is bound to give effect to the laws which regulate
his duties, and in so doing he must necessarily put a construction
upon them.** But a mere ministerial officer cannot be allowed to
decide upon the validity of a law, and thus exempt himself from re-
sponsibility for disobedience to the command of a peremptory man-
damus, his disobedience to the law being the cause of his inability
to obey the command of the court.**
State Governors under the Federal Constitution.
The constitutional functions of the governor of a state are regu-
lated to some extent by the constitution of the United States, and
chiefly in relation to matters concerning the intercourse of the states
with each other, and to the representation of the state in congress.
Thus, by the fourth article of the constitution, a person charged in
any state with treason, felony, or other crime, who shall flee from
justice and be found in another state, shall, on demand of the execu-
tive authority of the state from which he fled, be delivered up, to be
removed to the state having jurisdiction of the crime. Again, the
United States is bound to protect each state against domestic vio-
lence, when application for federal aid is made by the legislature.
But when the legislature cannot be convened, the executive of the state
may call for such assistance. All executive officers of the several
states are required to be bound by oath or affirmation to support the
constitution of the United States. When vacancies happen in the
representation of any state in congroBs, the executive authority thereof
shall issue writs of election to All such vacancies. And if vacancies
happen in the senate, by resignation or otherwiscj during the recess
of the legislature of the state, the executive thereof may make tem-
porary appointments until the next meeting of the legislature, which
shall then All such vacancies.
•7 City of Eyangyille y. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 96.
Bee **8tatute9," Dec. Dig. (Key No.) f S7; Cent. Dig. f S9.
•• U. S. V. Lytle, 5 McLean, 9, Fed. Cas. No. 15,652 ; State v. Hallock, 16
Nev. 378. See **Con8iituitional Law,*' Dec, Dig. (Key No.) f 78; Cent. Dig.
•• People y. Salomon, 54 lU. 80. Bee *'J/an4amiM," Dec. Dig. (Key No.) |
ISSs Cent. Dig. f 4t4.
330 JUDICIAL P0WBB8 IN THE 8TATB8. , (Ch. 12
CHAPTER XTT.
JUDICIAL POWERS IN THE STATESL
127. System of Courts.
128. Constitutional Courts.
129. Statutory Courta
130-131. Judges.
182-ld4. Jurisdiction.
135. Process and Procedure.
SYSTEM OF COURTS.
127« The Judlolal power of eaeh stete is Toeted la a eyetem of
eourte, eomprislnc generally, three elasses^
(a) A eourt of last resort, possessias sapreaM appellate Jaris-
dietioa*
(b) A aaniber of eoarts of e^aal aad eo-ordiaate aathorlty, emeh
wlthia its territorial limits, possessiac geaeral origiaal Ja-
risdietioa, oItII aad erlmineL
(o) Zaferlor eoarts, held by jastiees of the peaee or poliee laagisr
trates, possessias jarisdietioa of aiiaor eivll eaases aad pet-
ty orlaiiaml ofleaees.
The system of courts, in respect to its details, varies very greatly
in the different states, but in its main features there is a marked
similarity of plan. The general design is to establish one court of
last resort, which shall have final appellate jurisdiction over all the
rest, and a series of inferior courts, territorially distributed through-
out the state, possessing general original jurisdiction, civil and crimi-
nal, together with certain courts of greatly restricted powers, and
usually proceeding without a jury, which are intended for the trial
and determination of minor causes. The court of last resort is some-
times called the "supreme" court, sometimes the "court of appeals,"
sometimes the "court of errors and appeals," and there are some other
variations of these names. This court, as a rule, is vested with very
narrow original jurisdiction, but with the ultimate appellate jurisdic-
tion, both in civil and criminal causes. It also has power to issue
various prerogative writs, or other extraordinary remedies, such as
the writs of habeas corpus, certiorari, mandamus, injunction, quo
warranto, and writs of error.
i 127) 8T8TEM OF CX>nBTS« 331
Intermediate courts, between the court of last resort and the courts
of general original jurisdiction, have been created in several states,
in recent times, to relieve the courts of final appeal from a portion
of the burden of their constantly increasing labors. These courts
are generally invested with appellate jurisdiction only, and that ju-
risdiction is limited to cases not involving more than a certain amount
in money, or not involving capital punishment, or not involving ques-
tions relating to the constitutionality of statutes, or it may be other-
wise restricted, the statutory provisions in this respect not being uni-
form. Of this character are the "appellate courts" or "courts of ap-
peal" in Illinois, Missouri, California, Colorado, Kansas, Georgia,
and some other states, the "appellate division of the supreme court"
in New York, and the "superior court" of Pennsylvania.
High original jurisdiction is vested in a series of courts, which
are called "superior courts," "circuit courts," "district courts," "gen-
eral terms of the supreme court," or "courts of common pleas." These
courts possess general original jurisdiction of all suits, actions, and
judicial proceedings. In some states, they are also vested with ju-
risdiction in equity ; in others, there is a separate system of chancery
courts. Criminal jurisdiction is vested also in these courts, though
in ^ome states they are designated by other names when sitting on
the criminal side, such as courts of "oyer and terminer," courts of
"quarter sessions," or courts of "general jail delivery." Courts of
this class also possess appellate jurisdiction, in some states, from the
inferior courts, such as justices of the peace, probate courts, or mu-
nicipal courts.
Another series of courts is vested with the jurisdiction of the pro-
bate of wills, the granting of letters testamentary, and the settlement
of the estates of decedents, and generally of the appointment of
guardians for minors and the settlement of their accounts. These
courts are variously called "probate courts," "surrogates' courts,"
"orphans' courts," or "courts of ordinary."
Justices of the peace are found in all the states, and they are privi-
leged to hold courts for the determination of civil cases of minor im-
portance, their jurisdiction being usually limited to cases in which
the amount involved does not exceed a certain small sum, or where
the title to real estate does not come into controversy. They are also
conservators of the peace, and possess the powers of committing
magistrates, and also, in some states, final jurisdiction over minor
offenses and breaches of the peace.
In many of the states, there are established courts in the larger
332 JUDICIAL P0WBB8 IN THB 8TATB8. (Ch. 12
cities, called "municipal courts," which are invested with a minor civil
jurisdiction similar to that of justices of the peace, usually limited to
a small sum, and sometimes concurrent, up to that limit, with the ju-
risdiction of the circuit or district courts. They usually possess juris*
diction in criminal cases^ extending to the final trial of minor offenses,
such as violations of municipal ordinances or breaches of the peace,
which are not triable by jury, and jurisdiction in graver cases to make
a preliminary investigation and hold the offender to bail. In some
states, they also have appellate jurisdiction over the justices of the
peace.
The "police courts" found in some of the states are very similar
to the municipal courts just mentioned, except that, as a general rule,
they have no civil jurisdiction, being confined to the trial of petty
criminal offenses and the preliminary inquiry into felonies and high
misdemeanors.
The foregoing general view makes no mention of various courts
which are peculiar to one or a few of the states. The state judiciary
systems, as already observed, are marked by great diversities in the
details. And the limits of the present work do not admit of a review
of the powers of such courts as the "corporation courts," "hustings
courts," "mayor's courts," "parish courts," "prerogative courts," "re-
corders* courts," and others, existing only in a few of the states.^
GOKSTITUnOKAIf GOUBT8.
128. Snoli emirtfl mm are prorlded for In tlie eonstitntion of the state
ean neither be abolished nor chanced bj the lesislatnre*
And 'vrhatoTor jnriediction !■ Intrusted to them bj the eon*
stitntion is beyond the reach of the lesislatvrei it ean
neither be added to, diminished, nor modifled« Bnt the
manner of its enereise may be regnlated by statnte.
The judicial department being an independent and co-ordinate
branch of the state government, the constitutions do not leave the
judicial power to be prescribed and regulated at the discretion of the
legislature, but declare, with a greater or less degree of minuteness,
in what courts it shall be vested, and place their powers and functions,
with more or less precision, beyond the reach of the legislative will.
When the constitution of the state provides that the judicial power
1 For more detailed iiiformati<m the reader may consult Stim. Am. St Law,
H 550-558.
§ 128) 0OM8T1TUTIONAL CX>nBT8. 338
of the state shall be vested in certain enumerated courts, they are there-
by constituted an independent branch of the government, and placed
without the limits of legislative interference or control. The legisla-
ture cannot lawfully abolish, either directly or indirectly, any consti-
tutional court. The judiciary system, as defined in the constitution,
cm be changed only by a revision or amendment of the constitution.
And when the organic law creates a court and prescribes its jurisdic-
tion, its provisions are generally self -executing; that is, as the court
does not owe its existence to the legislature, so also there is no neces-
sity for the legislature to recognize it or invest it with jurisdiction in
order to enable it to proceed to the exercise of its constitutional du-
ties and powers.' Nor can the jurisdiction of the court, as fixed by
the constitution, be abridged by the legislative body. For instance, if
the jurisdiction of the court is co-extensive with the state, it cannot
be territorially restricted by statute.' So also, it is not competent for
the legislature to abolish or abridge the appellate jurisdiction given
to any court by the constitution, either directly or by making the judg-
ment of an inferior court final and conclusive.^ But it is no infringe-
ment of the constitutional powers of an appellate court to regulate or
point out the mode in which its power shall be exercised^ as» wheji by
appeal and when by writ of error.' And so the establishment, repeal,
or alteration of the statute of limitations as to the time of appealing
to the supreme court is within the lawful power of the legislature.*
And a statute allowing intermediate appeals to inferior courts is not
unconstitutional, provided the right of an ultimate appeal to the court
of last resort, as contemplated by the constitution, is not taken away.^
3 State y. Gleason, 12 Fla. 190; Keady y. Owen, 30 Colo. 1, 68 Pac. 609.
But see Cook y. Daugherty, 99 Va. 590, 39 S. E. 223. See **Con8titutional
Late," Dec, Dig, {Key No,) § 29; Cent, Dig, \ St,
« Oonimonwealth y. Allegheny County Oom'rs, 37 Pa. 237. Bee "Courts,**
Dec. Dig. {Key No,) | 1; Cent, Dig. f 100.
« Anderson y. Berry, 15 N. J. Eq. 232 ; Ex parte Anthony, 5 Ark. 358 ;
Lake Erie & W. R. Co. y. Watkins, 157 Ind. 000, 62 N. E. 443 ; State y. Wil-
son, 30 Kan. 061, 2 Pac. 828; Brown y. Kalamazoo Circuit Judge, 75 Mich.
274. 42 N. W. 827, 5 L. R. A. 226, 13 Am. St Rep. 438. See "Constitutional
Law/* Dec Dig. {Key No.) §§ 56, 111; Cent. Dig. Si 62, 267.
» Halght y. Gay, 8 Cal. J97,. 68 Am. Dec. 323. See '^Constitutional Law,**
DeSTlHQ. (Key No,) | 66;1:ent, Dig, S 60.
• Page y. Matthews* Adm'r, 40 Ala. 547. See ** Appeal and Error,** Dec, Dig.
{Key No,) § SS8; Cent. Dig. f 1882.
' r Yalabnsha- Connty v. Carbry, 3 8medcs« & M. (Miss.) 529. See "Appeal
and Error,** Dec. Dig. (Key No.) | 2; Cent. Dig. 13.
I:
I
334 JUDICIAL POWERS IN THB STATES. (Ch. 1!^
And if the legislature cannot abridge or restrict the jurisdiction con-
ferred on any court by the constitution, so neither can it enlarge such
jurisdiction, or grant any species of jurisdiction, where such enlarge-
ment or new grant would violate either the letter of the constitution
or its plain design with reference to the particular court. For instance,
where the intention of the fundamental law is that the supreme court
shall possess and exercise an appellate jurisdiction, and all original
jurisdiction is denied to it, or denied except in a few specified cases,
and vested in other courts equally created by the constitution, in such
case it is not within the power of the legislature to confer original
jurisdiction upon that court.' And in general, where the jurisdiction
of any particular court is limited by the fundamental law, it would
be unconstitutional for the legislature to attempt to increase the bound-
aries of its jurisdiction. Thus if, under the constitution, justices of
the peace have jurisdiction only of actions on contract, it is incom-
petent for the legislature to give them jurisdiction of actions for the
invasion of the privileges of licensed ferries.* On the same principle,
the legislature cannot confer appellate jurisdiction on courts which
are restricted by the constitution to the exercise of original jurisdic-
tion only.** Neither can the legislature confer upon one court the
functions and powers which the constitution has conferred upon an-
other."
8TATUTOBT COURTS.
1S9« If ike eonstitiLtlon Mnpowers the lecifllatw* to estmblisli im*
f MPiiMr eovrts, it wulj create, abolleh, or modif j svoh eourta
at its owm diseretloa, aad adjiuit and eontrol the limits of
their jurisdietioa, eubieet only to sveh liaUtatione as wulj
he found In the fnndaiaental law.
The function of creating courts and investing them with jurisdic-
tion is, generally speaking, constitutional rather than legislative. It
• State T. Bank of East Tennessee, 5 Sneed (Tenn.) 573; Ward t. Thomas*
2 Oold. (Tenn.) 665; State t. Jones, 22 Ark. 831. Bee **Oourti** Deo. Dig.
iKey No.) H i, 246; Cent. Dig. H 92, 746.
• Gibson y. Emerson, 7 Ark. 172. See **OourtSf** Dee. Dig. (Key No.) 11;
CerU. Dig. | 92; '*Justioe$ of the Peace,*' Dec Dig. (Key No.) S 62; Cent.
Dig, S 7S.
10 Deck's Estate r. Gherke, 6 Oal. SSS. Bee "Courts,** Dec Dig. (Key No^i
S 1; Cent. Dig. f 92. ^
11 Zander t. Ooe^ 5 GaL 28a Bee ^'Courte;* Dec Dig. (£ey 2^oJ i i; dtiil.
Dig. %% 9l==J9ti
§ 129) 8TATUTORT OOURT& 835
is not within the general bounds of legislative power to erect tribu-
nals of law. But the people, in adopting a constitution, may, and
frequently do, leave it to the legislature to provide for the organiza-
tion and jurisdiction of the inferior courts. But where the constitu-
tion declares that the judicial power shall be vested in certain courts
which it names "and in such other courts as the legislature may from
time to time establish," these words must be taken as pointing only to
a partition of judicial powers. They will not authorize the legislature
to abolish any of the constitutional courts, or to divest them of their
entire jurisdiction, or, in creating new courts, to invest them with
jurisdiction exclusive of that of the constitutional courts, but the leg-
islature may vest a portion of this jurisdiction or a concurrent juris-
diction, in courts from time to time established.** And such a grant
of power to the legislature is broad enough to authorize the bestowal
of judicial powers and functions, for special purposes, upon boards or
bodies whose ordinary duties are not properly judicial. Thus, in In-
diana, it is held that the legislature may erect the board of county
commissioners into a court which shall have authority to adjudicate
upon claims against the county.*' And a general distribution, in the
constitution, of the judicial power, not referring to courts-martial,
would not be held to prohibit, by implication, the creation of such
courts or the grant to them of power to punish by fine.** A discre-
tionary power bestowed by statute on a court may be taken away, in
any particular case, by a special act of the legislature, as well as gen-
erally by a general act.**
IS Commonwealth v. Green, 58 Pa. 226; Montroes v. State, 61 MIbs. 429;
State V. La Crosse County Court Judge, 11 Wis, 31. See ""Courts,** Dec. Dig.
{Key No.) 11; Cent. Dig. \\ IS, 91-106; ""CoMiitutUmal Law,*" Dec Dig.
{Key yo.) I 56; Cent, Dig. If 6S-65.
i< State V. Board of Cbm*rs of Washington County, 101 Ind. 69. But, on
the other hand, the legislature does not possess the power to create courts
fbr the exercise of legislative or administratiye functions, and tribunals creat-
ed under such power are courts only in respect to matters of a Judicial nature
and such as are properly incident thereto. Western Union Tel. Co. ▼. Myatt
(a a) 98 Fed. 885. See "'Courts,'' Dec. Dig. {Key No.) % 1; Cent. Dig. H
1-9, 91-106; "^Constitutional Law,** Dec Dig. {Key No.) | S6; Cent. Dig. H
69-65.
i« People T. Daniell, 50 N. Y. 274; Alden y. Fitts, 25 Me. 48& Bee'^MUi-
Ua** Dec Dig. {Key No.) % 21; Cent. Dig. U 61, 64.
IS People ▼. Judge of Twelfth Dist, 17 CaL 547. See "^StatuteSt" Dec Dig.
(fey No.) I 98; Cent. Dig. 1 110. "~
336 JUDICIAL P0WBB8 IN THE STATHk (Ch. 18
JUDGES.
130. The oomstit«tio&fl mmk« proTlaioa for tlM aeevritj mmii. lade-
peadeaee of the jWdces im the ezereiae of their Jwdielal
fvaetioBe.
lai. While a ecnutltiLtloiua oovrt eanmot he ahoUehed hy the lesle*
latiire, a Jiidce of a statutory eonrt atay he leglelated omt of
ofHee hy the ahelltleii of the eoart.
In some few of the states, the judges of the courts are appointed
by the governor; but in a majority, tiiey are elected by the qualified
voters. But the constitutions, in fixing their term of office, and in
prescribing their compensation and declaring that it shall not be in*
creased or diminished during their continuance in office, secure their
necessary independence, so far as concerns the interference or con-
trol of the legislative body.
It is a general rule of constitutional law, applicable to the judges
of the courts as well as to other official persons, that when the con-
stitution itself has created an office and fixed its term, and has also
declared the grounds and mode for the removal of an incumbent of
the office before the expiration of his term, the legislature has no
power to remove or suspend the officer for any other reason or in any
other mode.^* As to whether a judge can be legislated out of his
office by the abolition of the court to which he belongs, there has
been some difference of opinion. But the weight of authority seems
to teach that if the legislature has the power to abolish the court, it
cannot be restrained from so doing by the consideration that a judge
would thereby be deprived of his office in a mode not directly contem-
plated by the constitution. And where the judge has been elected
by the legislature itself, the legislature may curtail the territory of
his jurisdiction down to the constitutional minimum, although it
thereby diminishes his compensation.^^
!• Lowe y. Commonwealth, 8 Mete (Ky.) 237; State y. Emeraon, 89 Mo.
80. See "0/?U?er«," Dec. Dig. (Key No.) H 66, 10; Cent. Dig. H 96, 98;
'"Judges," Deo. Dig. {Key No.) f 11; Cent. Dig. §| 4S-i5.
17 Foster y. Jonee, 79 Va. 642, 62 Am. Rei>. 687. Bee ** Judges,*' Deo. Dig.
{Key No.) | 22; Cent. Dig. I 76.
§§ 132-184) JURiSDicnoH. 337
JUBIBDIOnOlf.
132. Tlie Judiclid pow«r of a state •aEtends to all oasoa and ooai
▼ersies properly svsoeptlblo of Jndloial determlaatloia, ez-
eopt In so far as svoli oaaos or oomtrorersies lutTo boon with-
drawn from tbe eosnisanoe of the state eonrts hj the federal
eonstitntlon or aeto of eongress.
188. The jnrisdletion of the state eonrts, in so far as it is fixed by
their eonstitntions, is not snbjeet to the regnlation or eon-
trol of the legislature.
134« It is not eompetent for the legislature to inpose upon Jndieial
ofieors dnties which are not Jndieial in their nature.
The judicial power of a state differs from that of the United States
in this: that while the latter is limited to such subjects, and such
controversies between such persons, as the constitution and acts of
congress specifically enumerate, the former is general, and extends to
all cases and judicial controversies, of every sort and description, and
between all classes of persons, except only in so far as it is limited
by the provisions of the federal constitution and the acts of congress
relating to the jurisdiction of the national courts.
The judiciary system created by the federal constitution is entirely
disconnected from and independent of the judiciary of the several
states. Although the courts of the two systems exist side by side in
the same territory, they are as independent as if they had been re-
spectively established by two foreign nations. Each is entitled to the
uninterrupted exercise of its own powers and functions. Neither
may rightfully encroach upon the province of the other. Neither can
define, limit, or interfere with the constitutional jurisdiction of the
other. Congress has no power to confer jurisdiction or judicial powers,
under the constitution, upon the courts of a state. Neither has a
state legislature any power to bestow jurisdiction, powers, or func-
tions upon the federal courts, or to impose duties upon them under
local law, or to annul their judgments or determine their jurisdic-
tion.** It has been made a question (but not yet decided) whether
a state can grant jurisdiction to the courts of another state, or grant
to another state the right to authorize her courts to act on certain
matters within the first state, or to constitute a court in the first state
itFerrla y. Coover, 11 (M, 175; Ex parte Knowles, 5 Cal. 800; Qre^j .* '
y. Townsend, 25 Oal. 004 ; U. S. v. Peters, 5 Cranch, 115, 8 Xa, Bd. 68. fiTee '
•*Coiir«," Deo. Diff. (Key No.) | 1; Cent. Dig. §| i-9, 91-106,
Bl.Ooiibz.L.(8d.Ed.)— 22
338 JUDICIAL POWERS IN THE STATES. (Ch. 12
to act upon the rights and property of the citizens of the other state
therein.^*
«
Whatever provisions may be found in the state constitution as to
the jurisdiction of the courts, or as to the classes of subjects over
which they shall have jurisdiction, the legislature is of course bound
and limited by such provisions.** Thus, if, under the constitution,
a given court has no jurisdiction of civil proceedings which are not
suits, complaints, or pleas, the legislature cannot confer upon it ju-
risdiction of contested election proceedings.*^ Furthermore, there
is a very important limitation upon the power of the legislature in
dealing with the courts, in this, that it is not competent to impose
upon the judges, as such, any duties which are not strictly judicial in
their nature. Such was the decision in regard to an early act of
congress which required the judges of the circuit courts to examine
and certify claims to pensions, their report to be subject to the super-
vision of congress or of an executive officer. This statute was re-
sisted by the courts, and several of them filed opinions in which they
refused to obey its behests, on the ground that it was an attempt to
impose upon them duties not belonging to the judicial office, and also
to make their judgments subject to the revision of congress or the
executive department.** But the same objections do not apply to an
act of congress requiring the judges of the circuit courts to appoint
supervisors of elections, since this comes within the authority given
to congress by the constitution to vest the appointment of inferior
officers in the courts of law.*' But if no similar power of appoint-
ment is found in the constitution of a state, it is not competent for the
legislature to empower the courts to appoint election officers.** But
since it is proper that the courts should have a voice in the selection
of their own officers, it is proper to provide that in case of an unde-
19 See Eaton & H. R. Co. v. Hunt, 20 Ind. 457. See ''Courts," Dec. Dig.
{Key yo.) § i; Cent Dig. §S 1-9, 91-106.
20 In re Application of Cleveland. 51 N. J. Law, 311, 17 Atl. 772. Bee "Coiv
stitutional Laic.** Dec. Dig, {Key No.) i 56; Cent. Dig. f 64-
21 Gibson V. Templeton, 62 Tex. 555. See "Elections,** Dec. Dig. {Key No.)
§ 275; Cent. Dig. § 251.
22 Hayburn's Case, 2 Dall. 409, 1 L. Ed. 436 ; U. S. v. Todd, 13 How. 52,
14 L. Ed. 47, note; U. S. v. Ferrelra, 13 How. 40, 14 L. Ed. 42. See **Con-
stitirtional Law,** Dec. Dig. {Key No.) § 74; Cent. Dig. f 124.
23 In re Supervisorfi of Election, 2 Flip. 228, Fed. Cas. No. 13,628. See
''ConstUutional Lavo** Dec Dig. {Key No.) § 19; Cent. Dig. % 137.
24 In re Supervisors of Election, 114 Mass. 247, 19 Am. Rep. 341. See
"Constitutional Law,** Dec. Dig. {Key No.) ( 79; Cent. Dig. f 197.
§ 186) PROCESS AND PBOCEDURB. 339
cided election for the oflfice of clerk of the court, the court itself shall
decide,** In pursuance of the same general principle it has been held
that while the courts are bound to decide the cases d\ily submitted to
them, they arc not bound to give written opinions, and the legislature
has no power to compel them to do so.** And some of the appellate
courts have refused to obey statutes requiring them to prepare the
syllabi to their reported decisions. As a corollary to this general prop-
osition it also follows that the judicial powers must be confined to the
courts proper, and that it is not competent for the legislature to confer
powers which are essentially judicial upon persons or officers who are
not recognized by the constitution or statutes as courts or judges.
Thus, a statute giving to masters in chancery authority to grant writs
of habeas corpus would' be unconstitutional for this reason.*^ And
the same is true of a law authorizing clerks of courts to fix the
amount of bail.** But a statute providing for the appointment of
referees is not unconstitutional on the ground of creating a diversion
of judicial power from its legitimate channels, for referees are sub-
ordinate officers of the courts.**
PROCESS AND PROCEDURE.
135. Subject to the limitAtion tl&at the lawful powers of the oonrte
rnnst not bo inf rincod and that the rettfid^rlghte of indl-
\ Tidnals must not bo interfered with, the process^ practice,
j forms, remedies, and prooednro in the covrts are snbject to
/ the regnlation of the loKislature at its own discretion.
The constitution is seldom violated by any statute which has re-
lation merely to the form or method of conducting judicial business.
Some restrictions, however, may be found in the constitutions of
some of the states, and it is scarcely necessary to observe that they
must be strictly heeded by the legislative body. Thus, the legislature
SB Lewis y. State, 12 Mo. 12a Bee "Constitutional Law,** Dec. Dig. (Key
No,) i 7S; Cent. Dig. f 1S7.
s« Houston Y. WUIiams, 13 Cal. 24, 78 Am. Dec. 665. Bee 'VonttitutUmal
Law,** Dec. Dig. {Key No.) % 52; Cent. Dig. | 52.
sTShonltz y. McPheeters, 79 Ind. 873. Bee **0on8titutional Law," Deo.
Dig. {Key No.) i 80; Cent. Dig. | i4i.
>• Gregory y. State, 94 Ind. 3S4, 48 Am. Rep. 162. Bee ^'Constitutional
Law,** Dec. Dig. {Key No.) I 80; Cent. Dig. % U6.
*• Carson y. Smith, 5 Minn. 78 (Gil. 58), 77 Am. Dec. 539. Bee "Constitu-
tional Law,*' Deo. Dig. iKey No.) ( 56; Cent. Dig. ^ 65*
340 JUDICIAL P0WBB8 IN THB 8TATBS. (Ch« 18
cannot prescribe a form of process at variance with that prescribed
by the state constitution; as, for instance, if the constitution directs
that every Sunuhons shall run in the name of the people, a summons
in the form specified by a statute, but not in the name of the pec^le,
is defective.'* So the legislature has the power reasonably to regulate;
but not to abolish, either directly or indirectly, the use of the writ of
certiorari.'^ The legislature can constitutionally authorize an ex-
y^ ecution issued by a city or county court to run throughout the state.'*
And it may authorize judges of the superior courts to hold special
terms at their discretion," or authorize the courts to review their own
decrees in equity after the expiration of the term at which the decree
was made.'^ But a case which has been submitted for decision to a
court of record is not subject to any control by the legislature." And
decisions have been rendered against the validity of laws abridging the
right of chancery courts to pass upon questions of fact without the
intervention of a jury,** restricting the privilege of the writ of habeas
corpus,'^ and abrogating rules previously adopted by the supreme
court in regard to the admission of attorneys to its bar,'*
so Manvine y. Battle Mountain Smelting Co., 17 Fed. 126. See '^Constitu-
tional Law," Dec, Dig. {Key No.) % 55; Cent. Dig, \ 60; **Proces8," Deo,
Dig, {Key No,) f 28; Cent. Dig. | 22.
•1 State V. Mayor, etc., of Jersey City, 42 N. J. Law, lia See *' Certiorari,^
Dec, Dig. (Key No.) § 8; Cent, Dig, | 2; "Constitutional Lata," Deo. Dig,
(Key No.) f 55; Cent, Dig, | 58.
I s> Hickman y. O'Neal, 10 Gal. 292. See **Constitutiona:i Law,** Deo, Dig,
(Key No.) i 255; Cent. Dig. § 752; "Courtar Cent. Dig. §i 99, 459.
»» Grinad y. State, 34 Ga. 270. See "Courts," Dec. Dig. (Key No.) i 64;
Cent. Dig. f 221.
s«Longworth v. Sturges, 4 Ohio St 690. 'See "Courts," Dec. Dig, (Key
No.) n 1, 240; Cent, Dig. %% 92, 112.
86 Lanier y. Gallatas, 13 La. Ann. 175. See "Constitutional Law,** Dec Dig,
(Key No.) f 57; Cent. Dig. § 66,
8« Detroit Nat Bank y. Blodgett, 115 Mich. 160, 73 N. W. 120. See "Con-
stitutional Law," Dec, Dig. (Key No.) ( 55.
87 In re Boyett, 136 N. 0. 415, 48 S. E. 789, 67 L. R. A. 972, 108 Am. St
Rep. 944. See "Constitutional Law," Dec. Dig. (Key No.) i 52.
88 In re Day, 181 lU. 73, 54 N. B. 646, 60 L. R. A. 519. See "OonstUutional
Law," Deo, Dig. (Key No:) i 52; Cent, Dig. | 6$.
§ 186) LBGISLATIYB POWBB IN THB STATBa. 841
OHAPTEB xm.
LBGISLATIYB POWER IN THB STATEa
186. Organization and Government of Legislatnra
137. Leglslatiye Power of States In General.
188-140. Limitations Imposed by tbe Federal ConstitotioiL
14L Implied Limitations in State Oonstitntions.
142. PrlTate, Special, and Local Legislation.
148-144. Delegation of Legislative Powers.
145-146. Bnactment of Laws.
147-149. TiUe and Snbject-Matter of Stotntesi
OBOAHIZATIOK AHD OOVEBNMEIIT OF UaGX8IJLTUB&
136. B7 eoBstitutioiud vrorlsloms im tkm several st«tes» or lij ooi
aum parliamentary law, tkm state lesislatnre kas tlM
(a) Te aui^e rules for its owm coremmeat aaA for tko le^ulatioa
of its^ifi^gislatiTe prooeediacs*
0)) To olioose its owm oilloers in eaoh lionso.
(e) To ezoreiso an ozolnsiTo right of dotermination npon tko oloe-
tion and qnalifleation of its own members.
(d) To oontrdl and 41*eiplino its moa&bors, for disorderly or oon-
tomptnOQX "l&eliaTior, oven to the eactont of OKpellins tkom.
(e) To appoint ^eommittoos and define their powers, and antlioriso
them to send for persons and papers in the eonrso of their
inTestis:ations.
<f ) To pnnish persons who atay he svilty of eoatempts acaiast it
or hreaehes of its privUeses.
(s) To seevre the naiatermpted serriee of all its meaibers oa the
pablie bnsiness, by the exemptioa of eaoh member from ar-
rest oa oivil prooess whUe eagaced in parliamentary datios
or whUe coins to <»r retamins from the seat of covonuaeat.
00 To hoop, in eaoh hoase, a Joamal of its prooeedinssy the pab-
lioatioa and amoadaieat of whioh aro within its power and
diseretion*
Apportionment of Members.
The apportionment of senators and representatives among the sev-
eral counties or districts of the state may be prescribed by the con-
stitution, but is more generally left to the discretion of the legislature,
and it may be changed as the growth of population or the public con-
venience may require, except where the constitution provides for peri-
odical apportionments, in which case the legislature has no authority
342 LBOISLATIVB POWER IN THE STATES. (Ch. 13
to act save at the designated times.^ This is a political function, and
the courts have no power either to make an apportionment or to re-
view one made by the legislature, except in so far as constitutional
directions or restrictions may be involved.*
Terms of Office.
The term of office of senators and representatives is fixed by the
constitution, but if that instrument does not expressly provide when
they shall begin, the legislature has power to fix the commencement
of the terms by statute.'
Compensation of Members,
Where the constitution forbids an increase of the salary of mem-
bers of the legislature, to take effect during the term of office of the
legislature voting it, that body may lawfully vote an increase of the
compensation of its members to take effect at the next ensuing term,
and this will not disqualify the legislators voting for it from re-elec-
tion to the next house.*
Sessions.
The constitutions generally provide that sessions of the legislature
shall be held at a certain place, usually the state capital, and at desig-
nated times, except that the governor may direct the legislature to con-
vene at some other place in certain emergencies,' and that he may
call a special session of the legislature when in his judgment it is
necessary or desirable ; but in the latter case the legislature is generally
restricted to the transaction of such business as is specified in the gov-
ernor's proclamation or message.* In many states it is provided that
the doors of the legislature shall be open or that its sessions shall be
public.
<(
1 People v. Hutchinson, 172 lU. 486, 50 N. E. 599, 40 L. B. A. 770. See
States^' Dec, Dig, (Key No.) f 27; Cent. Dig. ff 28-SS.
2 Richardson v. McChesney, 108 S. W. 322, 32 Ky. Law Rep. 1237, 15 L.
R. A. (N. S.) 801; State v. Schnitger, 16 Wyo. 479, 95 Pac 698; Wheeler
V. Herbert, 152 Oal. 224, 92 Pac. 353; Williams v. Secretary of State, 145
Mich. 447, 108 N. W. 749. See Prouty v. Stover, 11 Kan. 235. See **Constitur
tional Later Deo. Dig. {Key No.) §§ 68, 10; Cent. Dig. §| 127, 152, 157.
> Farrelly t. €k)le, 60 Kan. 356, 56 Pac. 492, 44 L. R. A. 464. See ''States;*
Dec. Dig. {Key No.) § 28; Cent. Dig, { S6.
* State v. Scott, 105 Minn. 513, 117 N. W. 1044. See "States;* Dec Dig.
{Key No.) I 6S; Cent. Dig. § 65.
8 See Taylor v. Beckham, 108 Ky. 278, 56 S. W. 177, 49 L. R. A. 258, 94
Am. St Rep. 357. See ''States;* Dec. Dig. {Key No.) § 32; Cent. Dig. § 40.
• People T. District Court of Arapahoe County, 23 Colo. 150, 46 Pac. 681;
§ 136) OBOANIZATION AND OOYBRNMENT OF LKQISLATUBB. 843
Rules of Procedure.
Either by constitutional provision or by common parliamentary law
each house of a state legislature has power to make its own rules of
procedure and to change them from time to time at its own pleasure
and discretion^ and whether the house, in its legislative action, has
observed or disregarded its own rules is not a question for the courts
to consider.^ This power of the legislature necessarily includes the
power to grant members leave of absence, to excuse them from voting,
when proper, and to recognize what are called, in parliamentary lan-
guage, "pairs." • The state constitution sometimes fixes the number
of members of either house who shall constitute a quorum for the
transaction of business. If it does not, the number may be fixed by a
rule of the house. In the absence of either a constitutional provision
or a rule, the general rule is that a majority of the members of the
house will constitute a quorum.*
OMcers,
As a general rule, each house of the legislature has the power to
choose its own officers, although, in some states, the power of the sen-
ate or upper house to choose its presiding officer is taken away by the
constitutional assignment of that position to the lieutenant governor.
Besides the presiding officer, each house of a state legislature generally
elects a clerk, sergeant at arms, and doorkeeper.
Committees.
Legislative committees play an important if not an essential part
in the modem conduct of legislative business; and while of course
no law-making body could surrender or delegate its powers to its own
committees, these are exceedingly useful in framing rules, investigating
the various subjects of proposed legislation, drafting bills, and recom-
mending the enactment of laws. Indeed in several states the consti-
Presldlo County v. City Nat Bank, 20 Tex. Civ. App. 511, 44 S. W. 1009;
Manor Casino v. State (Tex. dv. App.) 34 S. W. 709 ; In re Governor's Proc-
lamation, 19 Colo. 333, 85 Pac. 530; Morford v. Unger, 8 Iowa. 82; In re
Ukins, 223 Pa. 456, 72 Ati. 858. See "^Statute^^ Dec. Dig. {Key No.) % 5;
Cent. Dig. i 4.
T French v. State Senate, 146 Cal. 604, 80 Pac. 1031, 69 L. R. A. 556;
Smith T. Jennings, 67 S. C. 324, 45 S. B. 821 ; United States v. Ballin, 144
U. S. 1, 12 Sup. Ct 507, 86 L. Ed. 321; Conek v. Skeen (Ya.) 63 S. B. 11.
See **Statee,'* Dec Dig. (Key Vo,)i S5.
• Wise V. Bigger, 79 Va. 269. See **State8,*' Dec. Dig. (Key No.) i 55.
• State V. Ellington, 117 N. C. 158, 23 S. B. 250, 80 L. R A. 532, 58 Am.
St Bep. 580. See '^States,'* Dec. Dig. CKey No.) i SS; Cent. Dig. i U^
f
I
I
344 LBOISLATIVB POWBB IN THB STATBS. (Ch. 13
tutions provide that no bill shall be passed until it has been referred
to a committee and reported therefrom. The power to appoint such
committees and define their duties and authorize them to summon wit-
nesses before them is derived expressly or by necessary implication
from the constitutions.^* Whether a committee may be authorized to
sit and transact its business during the vacation of the legislature de-
pends on local constitutional rules.^^
Election and QualificaHon of Members.
The power to determine whether a person claiming to be a member
of the state legislature was duly elected and is qualified to take his seat
belongs exclusively to that house of the legislature of which he pro-
fesses to be a member ; and its decision of the question cannot be chal-
lenged or inquired into by the executive or the judicial department.**
Thus, until the house has declared that a vacancy exists by reason of
a member becoming disqualified, the courts cannot so declare and order
an election to fill the vacncy.** But this does not prevent a court, on
application by one claiming to be elected to the legislature for a man-
damus to ccxnpel the canvassing board to issue to him a certificate of
election, from determining whether or not he is eligible to the office.**
The qualifications of members are fixed by the constitution, and its
10 See State t. Gullbert, 75 Ohio St 1, 78 N. E. 931 ; State t. Blake, 69
CJonn. 64, 86 Atl. 1019 ; Tyler v. State (Ala.) 48 South. 672 ; State v. Frear,
188 Wis. 173, 119 N. W. 894. Bee "^States,*' Dec. Dig. {Key No.) % $4; Cent.
Dig. § 42; '^Statutes," Dec Dig. (Key No.) f IS; Cent. Dig. % 10.
11 See Tipton y. Parker, 71 Ark. 193, 74 S. W. 298; Ex parte Caldwell
(C. C.) 138 Fed. 487. Bee ''Btates," Dec. Dig. {Key No.) i S4; Cent. Dig. i 42.
12 Coffin T. Coffin, 4 Mass. 1, 8 Am. Dec. 189; Opinion of the Justices, 56
N. H. 570; MHls v. Newell, 30 Colo. 877, 70 Pac. 406; Sherrill v. O'Brien,
188 N. T. 185, 81 N. E. 124, 117 Am. St. Rep. 841 ; Corbett v. Naylor, 25 R.
I. 520, 57 Atl. 803 ; Attorney General y. Board of Canyassers of Seyenth Sen-
atorial Dlst, 155 Mich. 44, 118 N. W. 584 ; People y. Mahaney, 18 Mich. 481 ;
Ellison y. Barnes, 28 Utah, 188, 68 Pac. 899 ; State y. Schnitger, 16 Wyo. 479,
95 Pac. 698. Bee **CoMUtutional Law," Dec. Dig. {Key No.) § 68; Cent. Dig.
i 127; ** States,'* Dec. Dig. {Key No.) i SO; Cent. Dig. i S9.
18 Coyington y. Buffett, 90 Md. 569, 45 Atl. 204, 47 L. R. A. 622. Bee ''Con-
stitutional Law," Dec. Dig. {Key No.) i 68; Cent. Dig. § 127; "Btates,*' Deo.
Dig. {Key No.) i SO; Cent. Dig. | S9.
* 1* People y. State Board of Canvassers, 129 N. T. 860, 29 N. B. 845, 14 L.
R. A. 646; State y. Scott, 105 Minn. 513, 117 N. W. 1044. See Attorney
General y. Board of Canyassers of Seventh Senatorial Dist, 155 Mich. 44,
118 N. W. 584. Bee ''Constitutional Law,** Dec. Dig. {Key No.) S 68; Cent.
Dig. § 127; "States:* Deo. Dig. {Key No.) ^ SO; Cent. Dig. ^ S9; "Manda-
mus,** Cent. Dig. | S8S.
§ 186) ORGANIZATION AND OOVBBNMBNT OF LBOISLATUBS. 845
provisions in that respect are generally imperative/^ though it has been
held that a constitutional requirement that each member shall take an
oath to support the constitution is merely directory, at least to the
extent that the omission to take the oath does not affect the validity
of statutes regularly enacted.** It is to be observed that the l^slature
cannot add any new or different qualification for membership, dt im-
pose any restrictions upon eligibility, beyond those prescribed by the
constitution.*^ •
Expulsion of Members,
The power of expelling members for adequate cause is generally
granted in the constitution, but it would necessarily exist even with-
out constitutional sanction, as it is a power which is indispensable
for the proper discharge of those functions for which the legislature
is created. The reasons for the expulsion, and the question whether
the member was duly heard before sentence was passed upon him,
cannot be inquired into by the courts in any collateral proceeding.**
Punishment of Contempts,
In most of the states, the ccmstitution gives power to each house of
the legislature to punish its own members for disorderly conduct; and
in many, by constitutional grant of authority, either house may punish
any person not a member for disorderly or contemptuous conduct,
though such punishment must not extend beyond the final adjournment
of the session. But no American legislative body may claim such
plenary power to punish for contempt as. is possessed by the higher
courts of justice. It seems clear that any person who violates the priv-
ilege of a member from arrest is in contempt of the house, and may be
punished therefor by common parliamentary law. Again, any person
guilty of violent, tumultuous, or disorderly behavior in the presence
of the house is certainly liable to punishment. But, beyond this point,
the power of legislative bodies to punish for contempts is not very
clearly settled. The question of the extent of this power chiefly arises
IB State v. Scott, 105 Minn. 513, 117 N. W. 1044. Bee ""Btatee:* Dec, Dig.
{Key yo.) H 28, SO; Cent, Dig. Si S5, $9.
KHUl T. Boyland, 40 Ml8& 618. See "Constitutional Law,** Dec, Dig.
{Key No.) i S5; Cent. Dig. l S4^; "Statesr Cent. Dig. fi S5.
IT People T. Board of Election Goin'rs of City of Chicago, 221 III. 9, 77
N. E. 821. Bee **Constituiional Law;* Deo. Dig, {Key No.) § 50; Cent, Dig.
li 48, 49.
i« Hi88 T. Bartlett, 8 Gray (Mass.) 46S, 63 Am. Dec. 768. And see French ▼. / '
State iSenate, 146 Cal. 604« 80 Pac. 1031, 69 L. R. A. 556. Bee 'Constitutional
Law,** Dec, Dig. {Key No.) i 70; Cent, Dig. H 129, 1S7,
t
i
346 LBOISLATIVB POWER IN THB STATES. (Ch. 13
when it is sought to compel a witness to appear before a house of
the legislature, or a committee of the same, and answer questions.^*
In the case of congress, this power depends upon the nature of the in-
quiry conducted by the committee. If the inquiry relates to the organ-
ization or government of the house, the election or qualification of its
members, the observance of its lawful rules, the privilege of its mem-
bers, or to impeachment proceedings, it is within the jurisdiction of
the house, and the witness may be punished if contumacious. But
the courts are unwilling to extend the power beyond these limits."*
In regard to the state legislatures, the power to punish for contempt
apparently extends to all cases of witnesses before the house or a
committee where the subject of investigation is properly legislative;
that is, where it relates to the organization or government of the
house, the election or privileges of its members, or some subject of in-
tended or contemplated legislative action. Thus, a committee trying
a contested election of a member of the house may summon witnesses,
and if they refuse to appear, or to answer proper questions, they are
in contempt of the house and may be punished.*^ In a recent case it
was held that a resolution of the United States senate appointing a
committee to investigate newspaper charges of bribery and corruption
of senators in connection with certain items of a tariff bill then pend-
ing, and to ascertain whether any senator had been or was engaged
in speculating in stocks likely to be aflfected by such items, embraced
a matter properly and constitutionally within the cognizance and juris-
diction of the senate; and a witness before such committee, refusing
to answer proper and pertinent questions, was rightly punished for his
contumacy.'* In another case it was ruled that an inquiry who, if
3i»See In re Davis, 58 Kan. 368, 49 Pac. 160; Ex parte Parker, 74 S. C.
466, 55 S. E. 122, 114 Am. St. Rep. 1011 ; Lowe t. Summers, 69 Mo. App. 637.
Bee ** States," Deo. Dig. (Key No.) f 40; Cent. Dig. i 46.
so See KUboum t. Thompson, 108 U. S. 168, 26 L. Ed. 377. Congress has
enacted a law (Rev. St. U. S. i 102 [U. S. Comp. St 1901, p. 55]) that any
person who, being summoned to appear as a witness before either house or
a committee of either house, to give testimony or produce papers upon any
matter under inquiry by the house, shall willfully make default, or who,
having appeared, refuses to answer any pertinent question, shall be guUty of
a misdemeanor, and punished by fine and imprisonment The constitutional-
ity of this act has been sustained. Chapman v. U. S., 6 App. D. O. 122. See
*'United States,*' Dec. Dig. (Key No.) i 21; Cent. Dig. ^ IS.
21 In re Gunn, 50 Kan. 155, 32 Pac. 471, 19 L. R. A. 619. See "States,**
Deo. Dig. (Key No.) i 40; Cent. Dig. i 46.
ss Chapman v. U. S., 6 App. D. O. 122. And see Ex parte McCarthy, 29
§ 136) ORGANIZATION AND GOVERNMENT OF LBGISLATUBB. 347
any one, had violated a rule of the senate which requires that all treaties
laid before them shall be kept secret until the senate shall take off the
injunction of secrecy, is a matter within the jurisdiction of the senate;
and a witness summoned before the senate on such an inquiry, who re-
fuses to respond to proper questions put to him, may be punished for
contempt.*' But an investigation instituted by a house of the legis-
lature for the mere purpose of discovering certain facts, or for polit-
ical purposes, not connected with any intended legislation or other mat-
ters upon which the house could act, is not a legislative proceeding,
and a witness cannot be compelled to appear and answer questions.^*
And it should be remembered that it is always the privilege of the
citizen to be excused from responding to any questions the answers to
which might tend to criminate .him or furnish a link in a chain of crim-
inal evidence against him. And what the courts cannot compel him
to do, in this respect, cannot be required of him by a legislative body
or one of its committees.*' It has also been held that congress can-
not compel the production of private books and papers of citizens for
its inspection, except in the course of judicial proceedings or in suits
instituted for that purpose, and then only upon averments that its
rights in some way depend upon the evidence therein contained. Con-
sequently a committee of congress, or a commission appointed by it,
cannot compel a private person thus to exhibit his books and papers
for their examination, nor punish him for contumacy or contempt if
he refuses to obey their command in that behalf.** A person who
has been punished by imprisonment for a contempt of a house of the
legislature cannot maintain an action in damages against the members
who voted to punish him, or the sergeant at arms who obeyed the com-
mand of the house, as for an unlawful and malicious arrest and im-
prisonment.*^
Cal. 395 ; Bx parte Lawrence, 116 Cal. 208, 48 Pac. 124. Bee **8tate8,** Dec,
Dig. (Key No.) § 40; Cent. Dig. i 46; '*United States,'* Dec. Dig. (Key No.)
i SI; Cent. Dig. § IS.
ss Ex parte Nugent, 1 Am. Law J. (N. S.) 107, Fed. Cas. No. 10375. See
""United States;* Dec. Dig. (Key No.) § 21; Cent. Dig. i IS.
«* i^eople V. Keeler, 09 N. Y. 463, 2 N. B. 615, 52 Am. Rep. 40. Bee '^States,**
Dec. Dig. (Key No.) i 40; Cent. Dig. f ^6.
«» In re Emery, 107 Mass. 172, 9 Am. Rep. 22. Bee **Witnesscs,*' Dec. Dig.
(Key No.) { 2SS; Cent. Dig. § 1011.
s« In re Pacific RaUway Commission, 32 Fed. 241. Bee **Vnited States,"
Dec. Dig. (Key No.) | 2S; Cent. Dig. i 15.
ST Canfield v. Gresham, 82 Tex. 10, 17 S. W. 390. Bee ""Staiet^* Dec. Dig.
(Key No.) i 40; eient. Dig. || 4S, 46.
i I
:348 LBGISLATIVB POWER IN THB STATB8. (Ch. 13
Privilege of Members from Arrest.
The. constitutions of most, if not all, of the states provide that mem-
bers of the legislature shall be privileged from arrest, except for trea-
son, felony, or breach of the peace, while in attendance upon a ses-
sion of the legislature ; and in some states this privilege also embraces
the time which may be reasonably required by them for going to and
returning from the place of meeting of the legislature. In some states,
though not all, the members are also exempt from service of any civil
process. This is the case, for example, by constitutional provision, in
Kansas, and it is there held that service of original process upon a
member during the session is entirely void, and gives the court no
jurisdiction over the person of such member.** But, if the constitu-
tional privilege extends only to arrest on a charge of crime, this will
not prevent the service of a siunmons or other process in a civil ac-
tion, not involving the arrest and detention of the person of the legis-
lator.'* It would, however, prevent his being taken upon a capias, or
the service of any writ the disobedience to which would be punishable
by attachment of the person.
Journals,
In nearly all the states the constitutions provide that each house
of the legislature shall keep a journal of its proceedings, and publish
the same, excepting such parts as may require secrecy. The journal
is a daily record of the proceedings of the house. It is kept by the
secretary or clerk, and in it are entered the appointment and action of
committees, the introduction of bills, motions, the votes and resolu-
tions of the house, and such other matters as the house may direct
to be spread upon the journal, in the order of their occurrence. It is
held in some states that it is not permissible to go behind an enrolled
statute, in seeking to show that it was not duly passed. But in other
states (probably a majority) it is considered that, if an allegation is
put forward that the act in question was not passed by the legislature
Si Cook ▼. Senior, 8 Kan. App. 278, 45 Pac. 126. .So also In West Vir-
ginia. Plttlnger v. Marshall, 50 W. Va. 229, 40 S. E. 342. See ^'States,*' Dec.
Dig. {Key No.) i 28; Cent. Dig. §{ S4-^7; '^Arrest:* Cent. Dig. K 23. 142;
••Process;' Cent. Dig. §i 140-142, 144* US, 15S, 154.
"Rhodes y. Walsh, 55 Minn. 542, 57 N. W. 212, 23 L. R. A. 632; Gentry
v. Griffith, 27 Tex. 461. But compare Miner y. Markham (a C) 28 Fed. 387.
Bee ''States;* Dec Dig. (Key No.) i 28; Cent. Dig. H W-^; **Arrest;* Cent.
Dig. li 25, 142; "Process;' Cent. Dig. H 14O-I42, 144, US, 15S, I54.
i 136) OBOANIZATIOM AND GOYEBNMBNT OF LSGI8LATURB. 849
in the form and manner required by the constitution, recourse may be
had to the journals of the legislature to determine the question.*^
The legislature may at the same or a subsequent session correct its
journals, by amendments which show the true facts as they actually
occurred, when it is satisfied that by neglect or design the truth has
been omitted or suppressed.*^
Bribery of Legislators and Lobbying.
The attempt to bribe a member of the legislature is made a criminal
offense, either by the constitution or a statute, in all the states, as is >'
also the taking of a bribe by such member.*' Moreover, the law sets
its face severely against lobbying. In two states this is made a felony
by the constitution."* And in all, the courts refuse to lend their aid
in the enforcement of contracts for lobby services, declaring all such
agreements to be immoral and void. "A contract for lobby services,
for personal [or political] influence, for mere importunity to members
of the legislature or other official body, for bribery or corruption, or
for seducing or influencing them, for any other arguments or persua-
sions or inducements than such as bear directly and legitimately upon
the merits of the pending application, is illegal and against public
policy and void." •* In a case before the supreme court of the United
so State y. Hooker, 36 Fla. 358, 18 South. 767 ; State of Ullnolg t. lUinols
Cent R. Co. (a C.) 33 Fed. 730; Opinion of Justices, 52 N. H. 622; State
V. Francis, 26 Kan. 724; Chicot County v. Davles, 40 Ark. 200; Glldeweli
T. Martin, 51 Ark. 559. 11 S. W. 882 ; Wise t. Bigger, 79 Va. 269 ; Hunt v.
State, 22 Tex. App. 396, 3 S. W. 233; Attorney General y. Rice, 64 Mich.
385. 31 N. W. 203 ; Marshall Field y. Oark. 143 U. S. 649. 12 Sup." Ct 495,
36 L. Ed. 294; United States v. Ballin, 144 U. S. 1, 12 Sup. Ct. 507, 36 L.
Ed. 321 ; State v. Smith, 44 Ohio St. 348. 7 N. E. 447, 12 N. E. 829 ; State v.
Erickson (Mont.) 102 Pac. 336; State v. Bowman (Ark.) 118 S. W. 711. See
"fif^ate*," Dec, Dig. {Key Vo.) % 57; Cent, Dig, S U; **8tatutes,** Dec. Dig.
(Key No.) §i 18, 285; Cent. Dig. i§ i7. 27. S8l S85.
SI Tnrley y. Logan Co.. 17 IH. 151. See State y. Martin (Ala.) 48 South.
846. See '*StateSi'* Dec. Dig. {Key No.) i S7; Cent. Dig. fi U-
»» See French v. State Senate, 146 Cal. 604, 80 Pac. 1031, 69 L. R. A. 556. ^'
See '^Bribery,'* Dec. Dig. {Key No.) § i; Cent. Dig. § S.
«« Ck>nst. Cal. art. 4, 8 35 ; Const. Ga. art 1. |§ 2, 6. The constitution of ;;
California, as aboye, defines "lobbying" as "the seeking to influence the yote
of a member of the legislature by bribery, promise of reward. Intimidation,
or other dishonest means.**
•* McKee y. Cheney. 52 How. Prac. (N. T.) 144. See, also, Sweeney y. Mc-
Leod, 15 Or. 880, 15 Pac. 275 ; CoquUlard's Adm'r y. Bearss, 21 Ind. 479, 83
Am. Dec 362; 2 Pars. Cont (8th Ed.) 878; Bish. Cont i 499. See "Con-
tra0t9,** Dec Dig. (Key No.) { 1S6; Cent. Dig. || 587-^89.
350 LBOISLATIVE POWER IN THE STATES. (Ch. 13
States it was said, after referring to a number of decisions : "The sum
of these cases is : First, that all contracts for a contingent compensa-
tion for obtaining legislation, or to use personal or any secret or sinister
influence on legislators, are void by the policy of the law. Second,
secrecy as to the character under which the agent or solicitor acts
tends to deception and is immoral and fraudulent ; and where the agent
contracts to use secret influences, or voluntarily, without contract with
his principal, uses such means, he cannot have the assistance of a court
to recover compensation." •* It is even held that a contract stipulating
a compensation for services to be rendered in procuring an act to be
passed by the legislature for the benefit of the party promising to pay
is contra bonos mores, and cannot be enforced, even though no im-
proper means are alleged or shown to have been resorted to by the
agent in obtaining the passage of the act."* And a contract by which
one agrees to "use his utmost influence and exertions" to procure the
passage of a bill is void as against public policy; for it tends directly
to secret, corrupt, and improper tampering with legislative action.*^ On
the same principle, an agreement by which one contracts to withdraw
or withhold his opposition to a pending legislative measure, for a
consideration in money or other thing of value, is void.*"
But it does not follow that a person interested in pending legisla-
tion may not employ agents or attorneys to represent, in a proper
manner and at a proper time and place, his reasons for desiring or
opposing the passage of the bill. Such contracts are frequently made,
and are valid at law, and perfectly consistent with the nicest sense
of honor."* "It is allowable," says the court in New York, "to employ
counsel to appear before a legislative committee, or before the legis-
lature itself, to advocate or oppose a measure in which the individual
has an interest." *• "We entertain no doubt that an agreement, ex-
»B Marshall t. Baltimore & O. B. Ck)., 16 How. 314, 14 L. Ed. 953. See
"ContractSy" Dec, Dig. (Key A'o.) 5 126; Cent Dig, §S 587-589,
»6 Gil V. Williams & Davis, 12 La. Ann. 219, 68 Am. Dec. 767. See "Con-
tracts,** Dec, Dig. (Key No.) S 126; Cent, Dig, |§ 58t-589.
87 Mills V. Mills, 40 N. T. 543, 100 Am. Dec. 535. Bee ''Contracts,'' Dec.
Dig. (Key No.) § 126; Cent, Dig, §§ 587-^89.
SB Smith y. Applegate, 23 N. J. Law, 352. But compare Edwards v. Rail-
Way Co., 1 Mylne & C. 650. See "Contracts,*' Dec, Dig, (Key No,) S§ 108, 126;
Cent, Dig, §§ 510^/2, 590.
«» Wlnpenny v. French, 18 Ohio St. 469; Pennebaker v. Williams (Ky.) 120
S. W. 321. See "Contracts," Dec, Dig, (Key No,) |§ 126, ISl; Cent, Dig. {f
692, 607.
*oLyon v. Mitchell, 36 N. Y. 235, 93 Am. Dec. 502; Sedgwick v. Stanton,
14 N. T. 289. Bee "Contracts,** Dec. Dig. (Key No.) § 126; Cent. Dig. S 592.
§ 137) LEOISLATIVE POWEB OF STATES IN GENERAL. 351
press or implied, for purely professional services, is valid. Within
this category are included drafting the petition to set forth the claim,
attending to the taking of testimony, collecting facts, preparing argu-
ments, and submitting them orally or in writing to a committee or other
proper authority, and other services of like character. All these things
are intended to reach only the reason of those sought to be influenced.
They rest on the same principle of ethics as professional services ren-
dered in a court of justice and are no more exceptionable." **
"LEOISULTIVB POWER OF STATES IK GENERAXi.
137* Tbe riglitfiil poweg of tlie lesislfttwe of a stato extends to ev-
ery eubieot of lesialatioii, imlese, in tlie parttovlar inataaoe*
ite ezeroiee ie forbidden, ezpreeely or liy neooMary Implioa*
tion, liy tlM oonetitntion of the United States, a treaty, an
aot of oonsvoM* or the oonstitntion of the state.
Under the system of government in the United States, the people of
each of the states possess the inherent power to make any and all
laws for their own governance. But a portion of this plenary legis-
lative power has been surrendered by each of the states to the United
States. The remainder is confided by the people of the state, by their
constitution, to their representatives constituting the state legislature.
At the same time, and by the same instrument, they impose certain
restrictions and limitations upon the legislative power thus delegated.
But state constitutions are not to be construed as grants of power (ex-
cept in the most general sense), but rather as limitations upon the
power of the state legislature. From these principles it follows that
the legislature of a state may lawfully enact any law, of any char-
acter, on any subject, unless it is prohibited, in the particular instance,
either expressly or by necessary implication, by the provisions of some
law which it is bound to regard as supreme. These laws of supreme
authority, in which alone are to be sought the limitations of legis-
lative power in the states, are the constitution of the United States,
treaties and acts of congress made under its authority, and the con-
stitution of the particular state. No act of a state legislature can be
«i Trist T. Child, 21 Wall. 441, 22 L. Bd. 623. And see Yates t. Robertsoo,
80 Va. 475; Denison v. Crawford County, 48 Iowa, 211; Coqulllard's Adm*r
V. Bearss, 21 Ind. 479, 83 Am. Dec. 362. See "ContracU,*' Dec Dig. {f,ey No.)
i 126; Cent. Dig. \ 69Z.
352 LBOISLATIVB POWBB IN THB 8TATB8. (Ch. 18
pronounced ultra vires, unless it can be shown to be in contravention
of the express terms or necessary implications of one or other of these
instruments.**
«s McPherflon y. Blacker, 146 U. S. 25, 18 Sup. Ct 8, 36 L. Bd. 869; Glos-
za T. Tleman, 148 U. S. 661, 13 Sup. Ct. 721. 87 L. Ed. 599 ; Piatt v. LeCocq
(C. O.) 150 Fed. 391; Bnsl^ Development Oo. r. Powell, 147 Ala. 800, 40
South. 137; Sheppard ▼. Dowllng, 127 Ala. 1, 28 South. 791, 86 Am. St.
Rep. 68; City Street Improvement Ga v. University of California, 158 Cal.
776, 96 Pac. 801, 18 L. R. A. (N. S.) 451 ; People v. Nye, 9 Oal. App. 148, 96
Pac. 241; Harder's Flrqpiroof Storage ft Van Co. v. Chicago, 285 IlL 58, 85 N.
E. 245; Hovey v. State, 119 Ind. 395, 21 N. B. 21; Bckerson ▼. Des Moines,
137 Iowa, 452, 115 N. W. 177 ; McSurely v. McGrew (Iowa) 118 N. W. 415 ;
McOuire v. Chicago, B. ft Q. R. Co., 131 Iowa, 340, 108 N. W. 902 ; Booth v.
Commonwealth (Ky.) 113 S. W. 61 ; Bullitt v. Sturgeon, 127 Ky. 332, 105 S.
W. 468, 32 Ky. Law Rep. 215. 14 L. R. A. (N. S.) 268; Evers v. Hudson, 36
Mont 135, 92 Pac 462; Sears v. OottreU, 5 Mich. 251; State v. Sheppard,
192 Mo. 497, 91 S. W. 477; State v. Gates, 190 Mo. 540, 89 8. W. 881, 2
L. R. A. (N. S.) 152; Albright v. Fisher, 164 Mo. 56, 64 8. W. 106; Wallace
V. Reno, 27 Nev. 71. 73 Pac. 528. 63 L. R. A. 337, 108 Am. 8t Rep. 747;
Rhodes v. Sperry ft Hutchinson Co., 193 N. Y. 223, 85 N. B. 1097, 127 Aul
St. Rep. 945; People v. Young, 18 App. Div. 162, 45 N. Y. Supp. 772; People
V. Draper, 15 N. Y. 582 ; People v. Flagg, 46 N. Y. 401 ; Walker v. Qncin-
nati, 21 Ohio St. 14, 8 Am. Rep. 24 ; Page ▼. Allen, 58 Pa. 888, 98 Am. Dec.
272 ; Commonwealth v. Mellet, 27 Pa. Super. Ct 41 ; Solon v. State, 54 Tez.
Cr. R. 261, 114 S. W. 349 ; Kimball v. Grantsville aty, 19 Utah. 368, 57 Pac.
1, 45 L. R. A. 628; Thorpe v. Rutland ft B. R. Co., 27 Vt 140, 62 Am. Dec.
625 ; Whitlock v. Hawkins, 105 Va. 242, 58 S. E. 401 ; Conek v. Skeen (Va.)
63 S. B. 11; Minneapolis, St P. ft S. S. M. R. Co. v. Wisconsin Railroad
Commission, 136 Wis. 146^ 116 N. W. 905, 17 L. R. A. (N. S.) 821.
But constitutional prohibitions need not always be express. They are
equally effective when they arise by implication. To create an implied pro-
hibition there must be some express affirmative provision. The mere silence
of the constitution creates no prohibition, and, to sustain an implied prohibi-
tion, the express provision must apply to the exact subject-matter, and the
prohibition will not be extended further than necessary to give full force to
the provision. Prouty v. Stover, 11 Kan. 235. But a constitutional provi-
sion directing a particular thing to be done is a limitation on the legislative
power to the extent that the legislature cannot lawfully take any action
which would prevent the doing of the thing directed. Collins v. Henderson,
11 Bush (Ky.) 74. See "Constitutional Law," Deo, Dig. (Key No.) B 26, £7;
Cent. Dig. H SO, SI; •*BtatfgteM,*' Cent. Dig. i «.
§§ 138-140) UBUTATIONS IMPOSSD BT FEDERAL OONSnTUTION. 853
UMTTATIOlfS IMPOSED BT THE FEDERAIi OONSTTTimOlf.
138. Thm eoAstitvtIom of tli* ITnlted States ImpooM Unitatloaji or
proliiliitioiui of two kinds vpom tlio loffUlatlTO powor of the
■OToral Btatofly Tlat
(a) Implied*
(b) EzpUoit.
139. The implied limitatiou upon state lesislatiTe power are di-
▼isililo into two elaseeet
(a) Those whioh grow out of the craat to 99ng;re9m of oxelasiTO
power to legislate on eertain snhjeots.
(b) Those which are implied from the grant or gnaranty of eer-
tain rights or priTileges to the oitisens of the ITnited States^
the eitisens of the states, or the states as states.
140. The enplieit liatitations imposed hj the federal eonstitmtion
upon the legislatiTO power of the states are as foUowst No
state shall—
(a) Enter into any trecifj* ftlliAaoe» or oonfederation* nor, without
the oonsent of oongress, enter into any agreement or oom-
paet with another state or with a foreign power.
Cb) Grant letters of marque and reprisaL
(0) Emit^ hills of eredit.
(d) Coin money, or make anything hnt gold or silTor ooin a ten«
der in payment of debts.
(e) Pass any bill of attainder, en post f aeto law, or law impairing
the obligation of oontraets.
(f ) Grant any title of nobiUty.
<g) Iiay any impoits or auties on imports or exports, ezoept irhat
may be absolutely neoessary for ezeouting its inspeetion
laws, unless with the oonsent of oongress.
(h) I«ay any duty of toipuis^* ezoept with the oonsent of oongress.
(i) Keep trcMps or ships of war in time of peaee.
(i) Engage in irar, unless actually invaded or in such imndnent
danger as^'^'^iU not admit of delay.
<h) Establish or allow slavery or involuntary serritude, except as
a punishment for^rime whereof the party shall have been
duly eonvioted.
(1) Make or enforoe any law whioh shall abridge the privileges
or imaiunities of oitisens of the United States,
(m) Deprive any person of life, liberty, or property without due
process of lair.
<n) Deny to any person within its Jurisdiotion the equal protee-
tion of the lairs,
(o) Assume or pay any debt or obligation incurred in aid of insur*
reotion or rebellion against the United States, or any elaim
for the loss or emaneipation of any slave*
Bi*.Oon8T.L.(3d.Ed.)—- 28
354 LBOI8LATIVB POWER IN THE STATES. (Ch. IS
Cp) Dmj or abridge the right of eitliems of the ITaitod States to
▼ote, on aooon&t of raoe, eolor, or yroTloiu ooaditiom of
■erritnde.
Implied LinMations,
The implied limitations of the first class grow out of the fact that
certain powers of lawmaking are granted to congress by the federal
constitution, and some of these are exclusive. In such cases, the con-
stitution implies that the several states shall not take any legislative
action upon the subject-matter of such exclusive power of congress.
These prohibitions have been discussed in connection with the powers
of congress. An example of an exclusive power vested in congress
is that which gives it the sole right to legislate for the government of
the District of Columbia and the territories.
In the second class of implied prohibitions belong those which for-
bid the states to deprive the federal courts of any part of the jurisdic-
tion conferred upon them by the constitution, or of the means of ex-
ercising that jurisdiction, and those which secure to the citizens of
each state the privileges and immunities of citizens in the several states,
and which provide for full faith and credit to be given to the public
acts, records, and judicial proceedings of each state, and for the extra-
dition of fugitives from justice, and also the guaranty to each state
of a republican form of government. In each of these cases, the grant
of rights or the guaranty carries with it an implied prohibition of any
state legislation which would have the effect to deny it or derogate
from its effectiveness.
Explicit Limitations.
Of the explicit limitations upon state legislative power enumerated
above, some are of such importance, and involve so many principles
and questions, that they require separate chapters for their full treat-
ment. Others will be most appropriately discussed in connection with
the guaranties of private and political rights, and can only be studied
in connection with similar prohibitions laid upon the power of congress.
The remaining limitations upon state power, found in the federal con-
stitution and mentioned above, will now be considered in order.
But first, the reader must be again reminded that the various clauses
of the federal constitution which impose restrictions, limitations, or
prohibitions upon the exercise of legislative power were designed,,
generally, to guard the rights of the people against oppression on the
part of that government which the constitution created, not against
their own states. They are therefore to be considered as applicable
§§ 138-140) LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 355
only to the federal government, except in those cases where the states
are explicitly mentioned. And this is particularly to be observed in re-
gard to the first eight amendments.**
Treaties and Compacts.
The constitution gives to the general government the plenary and
exclusive control over all our foreign relations and all our dealings as
a nation among nations. Moreover, treaties made by the United States
are the supreme law of the land, and it follows that the individual
states are not only prevented from forming alliances or arranging
treaty rights with foreign countries, but also that it is not within their
lawful power to disregard or obstruct those which are made by the
national government.** The use of the several words "treaty," "agree-
ment," and "compact" shows "that it was the intention of the framers
of the constitution to use the broadest and most comprehensive terms,
and that they anxiously desired to cut off all connection or communica-
tion between a state and a foreign power" ; and, in order to execute
this evident intention, the word "agreement" must receive its most ex-
tended signification, and be so applied as to prohibit every agreement,
written or verbal, formal or informal, positive or implied by the mutual
understanding of the parties.** Thus, an act of the legislature of a
state authorizing the surrender of fugitives from justice claimed by a
foreign power as offenders against its laws, though not strictly a treaty,
involves relations with such foreign power, and is to that extent an
invasion of the paramount control over our foreign intercourse com-
mitted to congress by the constitution, and for that reason is void.**
But the states, with the consent of congress, may make compacts with
«• See O'Neil ▼. Vermont, 144 U. 8. 828, 12 Sap. Ct 898, 86 L. Ed. 460;
State T. Paul, 6 R. I. 185; Murphy t. People, 2 Cow. (N. Y.) 815; Perrear
▼. Maraachasetts, 5 Wall. 476, 18 L. Ed. 008. See ^^Constitutional Law,** Deo.
Dig. (Key No.) U 26. 27; Cent. Dig. H SO, SI.
«« Fellows T. Dennlston, 28 N. Y. 420; In re Metzger, 1 Edm. Sel. Cas.
(N. Y.) 899, Fed. Cas. No. 9,611. Bee •'Treaties:* Dec. Dig. (Key Vo.) i J;
Vent. Dig. f 1.
«• Holmes t. Jennison, 14 Pet 640, 614, 10 L. Ed. 679. See '^Treaties.**
Deo. Dig. (Key No.) 11; Cent. Dig. l 1; ** Extradition,** Cent. Dig. i i.
«• U. S. y. Rauscfaer, 119 U. S. 407, 7 Sup. Ct 284, 80 L. Ed. 425 ; People
T. Curtis, 60 N. Y. 821, 10 Am. Rep. 488. Bat in the absence of a treaty on
the sabject, a state is not prevented, by this claose of the constitution, from
passing a statute declaring an alien capable of inheriting or taking property
and holding the same within its borders. Blythe ▼. Hinckley, 180 IT. S. 888»
21 Sup. a. 890, 46 L. Ed. 657. Bee '^States,** Dec Dig. (Key Vo.) ^ 7; '*£»-
tradition:* Dec. Dig. (Key 2fo.) if S, 4; Cent. Dig. U 9^
356 LBGISLATIVB POWEB IN THB STATBg. (Ctl 13
each other. Such agreements have been made since the formation
of the constitution, and, indeed, even before its adoption. For instance,
in 1785, Maryland and Virginia entered into a compact or treaty regu-
lating the right of fishing in the Potomac river, which constitutes the
boundary between them. This compact is still in force, not being abro-
gated by the constitution, and has recently been before the courts for
interpretation.*^ It is open to some question whether the assent of
congress is required to every possible kind of contract which two states
might make with each other. It has been held that, with the consent
of congress, the states may settle their disputed boundaries by compact
or treaty.** But the opinion has lately been advanced that the con-
sent of congress is not necessary to agreements between the states
relating to matters in which the United States could have no possible
interest or concern, which do not trench upon the national authority
or the subjects committed to its exclusive control, nor involve the au-
tonomy of any state or the nature or extent of its political power or
influence. Thus, it is said, the mere selection of parties to settle a
boundary line between two states, and a legislative adoption of their
report by one of the states, does not amount to a "compact" or "agree-
ment" between states, which they are forbidden by the constitution
to make without the consent of congress, until the one state has adopt-
ed the report in consequence of its adoption by the other, nor even
then, unless the boundary established leads to the increase or decrease
of the political power or influence of the states affected.** The con-
sent of congress to an agreement between states need not necessarily
be manifested by an express assent to every proposition contained in
the agreement, but the assent may be inferred from the legislation of
congress on the subject.'*
Letters of Marque,
The subject of letters of marque has been somewhat considered in
connection with the war powers of congress.*^ It remains to add that
*7 See Ex parte Marsh (O. C.) 57 Fed. 719. See ''Fish,*' Dec, Dig. (Key
No,) § S; Cent, Dig. § 6,
*8 Poole V. Fleeger, 11 Pet 185, 9 L, Ed. 680. gee **8tate8," Dec Dig. (Key
No.) §§ 6, 12; Cent. Dig, §| 5, 7.
*• Virginia v. Tennessee, 148 U. S. 503, 13 Sup. Ct 728, 37 L. Ed. 537. And
^e Eastern Kentucky Coal Lands Corp. v. Commonwealth, 106 S. W. 2G0, 32
Ky. Law Rep. 129. See *' States," Dec. Dig. (Key No.) $ 12; Cent, Dig. § 7.
50 Virginia v. West Virginia, 11 Wall. 39, 20 L. Ed. 67 ; Virginia v. Tennes-
see, 148 U. S. 508, 13 Sup. Ct 728, 37 L. Ed. 537. See '^States,'' Dec Dig. (Key
No.) § 12; Cent. Dig. ^ 7.
•1 See ante, p. 274.
§§ 138-140) UMTTATIONS IMPOSED BT FBD£RAL OONSHTUTIOH. 857
the removal of this power from the field of state legislation, and the in-
trusting it exclusively to the general government, is a part of that gen-
eral policy which dictated the principle that the powers of peace and
war, with all their concomitants, should not be left to the discretion
and the varying interests or prejudices of the individual states, but
should be lodged alone in the central government. If it were not for
this prohibition, it would be in the power of any state, at any time, to
involve the whole nation in a war.
BUls of Credit.
The history of paper currency during the revolution, with its in-
evitable and serious depreciation, and the public discredit which ensued,
furnished the reason for the introduction into the constitution of a
prohibition against the issue of bills of credit by the states. Not every
species of evidence of debt put forth by a state comes within the de-
scription, of bills of credit. The term does not include bonds issued by
a state, or warrants for the payment of services out of a specific fund.
"To constitute a bill of credit within the constitution, it must be issued
by a state, on the faith of the state, and designed to circulate as money.
It must be a paper which circulates on the credit of the state, and so
received and used in the ordinary business of life." •■ A bill drawn
on a state, the payment of which is to be made out of a fund pledged
therefor, is not a bill of credit, within the meaning of this clause. ••
And bills issued by a banking corporation which has a paid-up capital
and may be sued upon its debts, are not to be deemed bills of credit,
even though the state owns the entire stock of the bank, and the legis-
lature elects the directors, and the faith of the state is pledged for the
redemption of the bills, and they are made receivable for all public
dties.** This prohibition of the constitution, though it declares only
that "no state" shall issue such bills, applies with equal force to the
B> Briscoe ▼. Bank of Kentucky, 11 Pet 257. 9 L. Ed. 709 ; Craig v. Mis-
souri, 4 Pet 410, 7 L. Ed. 903 ; Woodruff ▼. Trapnall, 10 How. 190, 13 L. Ed.
383 ; Central Bank of Georgia ▼. Little, ^ Ga. 346. And see Houston ft T.
C. R. Co. v. Texas, 177 U. S. 66, 20 Sup. Ct 545, 44 L, Bd. 673 ; Polndexter v.
Greenhow, 114 U. S. 283, 5 Sup. Ot. 910, 29 L. Ed. 185 ; Wesley v. Eells (C. C.)
90 Fed. 151 ; Robinson v. Lee (C. C.) 122 Fed. 1012 ; State v. Comptroller Gen-
eral, 4 S. C. 185. See '^States," Dec. Dig. (Key No.) i 145; Cent. Dig. S Hl>
fts Gowen v. Shnte, 4 Baxt (Tenn.) 57. See ''States,'' Dec. Dig. {Key No.)
S 145; Cent. Dig. 1 141.
«« Harrington y. Bank of Alabama, 13 How. 12, 14 L. Ed. 30 ; Briscoe y.
Bank of Kentucky, 11 Pet 257, 9 L. Ed. 709; Curran v. Arkansas, 15 How.
304, 14 L. Ed. 705. See "Banks and Banking," Dec Dig. {Key No.) ^^ 198,
211; Cent. Dig. U 750, 151, 800^^.
358 LEOISLATIVB POWER IN THE STATES. (Ch. 13
case where two or more states confederate together and on their joint
faith and credit issue bills of the forbidden character.**
Coining Money — Legal Tender.
Under the articles of confederation, the several states possessed
the power to coin money, as well as the United States. This appears
from the language of the ninth article, where it is provided that "the
United States in congress assembled shall have the sole and exclusive
right and power of regulating the alloy and value of coin struck by
their own authority or by that of the respective states." But under
the constitution, this power is removed from the states, not only by
the grant of the power to coin money to congress, but also by the pro-
hibition of it to the states. While the states may neither emit bills
of credit nor make anything but gold and silver coin a tender in pay-
ment of debts, yet neither of these restrictions will prevent them from
granting charters of incorporation to banking companies and authoriz-
ing them to issue their bills, intended to circulate as money, provided
that such bills are issued upon the credit of the banks alone and not
upon the faith of the states, and that it is not attempted to give them
the character of legal tender notes."
Duties on Imports and Exports.
The prohibition against state taxation of imports and exports is one
of those provisions of the constitution which are designed more ef-
fectually to commit to the national government the entire control of
foreign and interstate commerce. It was apparently deemed neces-
sary to concede to the states a very limited power of taxation in this
regard, for the purpose of allowing them to make and execute inspec-
tion laws. But so jealously was this concession restricted that all
temptation to the states to encroach upon the limits set for them was
taken away by the provision that the "net proceeds" of all duties so
laid "shall be for the use of the treasury of the United States." In-
spection laws are such as authorize and direct the inspection and ex-
amination of various kinds of merchandise intended for sale, or for
exportation, especially food, with a view to ascertaining its fitness for
use and excluding unwholesome or unmarketable goods from sale or
exportation.*^ The word "imports" as here used is construed as hav-
■5 BaUey v. Milner, 35 Ga. 330, Fed. Cas. No. 740. See '^Bankruptcy,'* Deo.
Dig. {Key No.) f Slh' Cent. Dig. § 472.
B6 Miller. Const. 583.
«T Turner v. Maryland, 107 U. S. 38, 2 Sup. Ct. 44, 27 L. Ed. 370; Volght
y. Wright, 141 U. S. 62, 11 &up, Ct. 855, 35 L. Ed. 638 ; Foster v. Master ft
S§ 138-140) LIMITATIONS IMPOSED BY FfiDEBAL CONSTITUTION. 359
ing reference only to goods imported from foreign countries, and it is
not applicable to such as are merely transported from one state into
another.** But the authority of the states to tax property brought into
them from other states is restrained by another clause of the constitu-
tion, namely, that which grants to congress the power to regulate com-
merce. As to articles imported from foreign countries, it is held that
they do not lose their character as imports, so as to become subject
to state taxation as a part of the general mass of property in the state,
until they have either passed from the control of the importer or have
been broken up by him from the original cases, packages, or bales in
which they were imported. Before this is done, any state tax upon
them is void, whether it is imposed upon them distinctively as imports
or as constituting a part of the importer's property.** In regard to
the taxation of exports, the chief difficulty has been in the determina-'
tion of the point of time at which goods cease to be a part of the
general mass of property in the state and assume the distinctive char-
acter of exports. The result of the authorities may be stated in the
following general rule : Goods produced in a state are not entitled to
exemption from its tax laws merely because it is the intention of the
owner that they shall be exported to another state or to a foreign coun-
try, or even because they have been partially prepared for that pur-
pose by being deposited at a place of shipment. But in this case they
must be taxed as other property in the state, of the same kind, is taxed.
Wardens of Port of New Orleans, 94 U. S. 246. 24 L. Ed. 122 ; Patapsco Guano
Ck). T. Board of Agriculture, 171 U. S. 345, 18 Sup. Ct 862, 43 L. Ed. 191. See
^'CofMnercer Dec Dig. (Key No.) M ^-^i, 77; Cent. Dig. if 48-SS, 61-70.
B* Woodruff 7. Parham, 8 Wall. 123, 19 L. Ed. 382 ; Almy v. California, 24
How. 169, 16 L. Ed. 644; Hinson v. Lott, 8 Wall. 148, 19 L. Ed. 387; Ameri-
can Steel & Wire Ck>. v. Speed, 192 U. S. 500, 24 Sup. Ct 365, 48 L. Ed. 538 ;
People V. Walling, 63 Mich. 264, 18 N. W. 807. See ^'Commerce,** Dec Dig.
(Key No.) i 77; Cent. Dig. §1 61-70.
8» Brown y. Maryland, 12 Wheat 419, 6 L. Ed. 678; Low ▼. Austin, 13 Wall.
29, 20 L. Ed. 517 ; Waring y. Mobile, 8 Wall. 110, 19 L. Ed. 342 ; New Mexico
y. Denyer ft R. G. R. Co., 203 U. S. 38» 27 Sup. Ct 1, 51 L. Ed. 78 ; Appeal of
Doane, 197 111. 376, 64 N. E. 377 ; Appeal of Pitkin ft Brooks, 193 111. 268, 61
N. E. 1048; Siegfried y. Raymond, 190 111. 424, 60 N. E. 868; State y. Board
of Assessors, 46 La. Ann. 145, 15 South. 10, 49 Am. St Rep. 318 ; Gerdan y.
Dayis, 67 N. J. Law, 88» 50 Atl. 586. Credits or bills receiyable are taxable
as capital Inyested within the state, although they are the proceeds of sales
of imi>orted goods in the original packages, as this is not a tax on imports.
People y. Wells, 107 App. Diy. 15, 95 N. Y. Supp. 100, affirmed in 184 N. Y.
275, 77 N. B. 19, and 208 U. S. 14, 28 Sup. Ot 193, 52 L. Bd. 870. Bee *'Oimr
merce/' Dec Dig. {fiey A'o.) U It, 77; Cent. Dig. % 6U
/
360 LBOISLATIVB POWER IN THS STATES. (Cb. 13
/ and it is not admissible to discriminate in taxation between articles
/ intended for consumption within the state and those sold or intended
I to be taken into another. And the distinctive character of "exports"
I does not attach to the goods until they have been shipped, or entered
I with a common carrier f of transportation to another state or foreign
I country, or have been started upon such transportation in a contin-
I uous route or journey.**
Duties of Tonnage.
The object of this prohibition was to prevent the states from bur-
dening or interfering with foreign and interstate commerce by the
indirect method of taxation. The imposition of a tonnage duty is
taxation, but it also amounts to a regulation of commerce. The ton-
nage of a vessel is a measure of its size and carrying capacity ; it is
. the measure of the ship's internal cubical capacity, estimated in tons of
one hundred cubic feet each, measured in a particular manner. The
supreme federal court has decided that "a duty of tonnage, within
the meaning of the constitution, is a charge upon a vessel, according
to its tonnage, as an instrument of commerce, for entering or leaving
a port, or navigating the public waters of the country; and the pro-
hibition was designed to prevent the states from imposing hindrances
of this kind to commerce carried on by vessels.*^ The prohibition,
therfore, amounts to this, that the states must not lay duties upon
vessels, according to their tonnage, by way of exaction for the priv-
ilege of being employed as instruments of commerce or for such priv-
ileges as are indispensable to that emplo)rment.** But this does not
preclude the states from taxing vessels as property, or rather, from
•0 Coe V. Enrol, 116 U. S. 517, 6 Sup. Ct. 475, 29 L. Bd. 715 ; Turpln v. Bur-
gess, 117 U. S. 504, 6 Sup. Gt. 835, 29 L. Ed. 988 ; Jackson Min. Co. T. Auditor
General, 32 Mich. 488. And see Armour Packing €!o. y. United States, 153
Fed. 1, 82 C. C. A. 135, 14 L. R. A. (N. S.) 400; Commonwealth v. Sellinger,
98 S. W. 1040, 30 Ky. Law Rep. 451. In Almy y. California, 24 How. 109, 16
Ii. Ed. 644, a stamp duty Imposed by the legislature of California upon bills
of lading for gold or silver transported from that state to any port or place
out of the state was held to be a tax on exports and void. See **Commerc€"
^ Dec. Dig. (Key No.) H 31, 77; Cent. Dig. §§ 24, 61-70.
61 Huse V. Glover, 119 U. S. 543, 7 Sup. Ct. 313, 30 L.. Ed. 487. See "Contr
merce,*' Dec. Dig. (Key No.) f 78; Cent. Dig. {§ 54-60.
«« State Tonnage Tax Cases, 12 Wall. 204, 20 L. Ed. 370; Inman S. S. Co.
V. Tinker, 94 U. S. 238, 24 L. Ed. 118 ; Southern S. S. Co. v. Portwardens, 6
Wall. 31, 18 L. Ed. 749 ; Peete v. Morgan, 19 Wall. 581, 22 L. Ed. 201 ; Wheel-
ing, P. ft C. Transp. Co. v. Wheeling, 99 U. S. 273, 25 L. Bd. 412. See *'Com-
meroe,** Dec. Dig. (Key No.) § 78; Cent. Dig. §S 54^60.
§§ 188-140) UMITATIONS IMPOSED BY FBDKRAL CONSTITUTIOH. 861
taxing the owners of vessels, in respect to their property therein, when
the vessels are subject to the taxing power or have their home situs
within its limits; this is not an interference with commerce, but a law-
ful exercise of the general power of taxation.*' And a statute which
requires the payment of wharfage dues from vessels making fast to the
wharves and discharging cargo thereat, is not obnoxious to the con-
stitutional prohibition, even though such wharfage dues are graduated
according to the tonnage of the vessel. The reason is that wharfage
dues are not taxes or duties, nor do they amount to a regulation of
commerce.** Furthermore, it has been decided that where a state
statute requires every vessel passing a quarantine station to pay a
certain fee for examination as to her sanitary condition, this is to be
regarded as a part of the quarantine system and a compensation for
services rendered to the vessel, and not as a tax, within the meaning
of the constitutional limitation in respect to tonnage duties.**
Keeping Troops — Engaging in War.
"No state shall, without the consent of congress, keep troops or
ships of war in time of peace, or engage in war, unless actually in-
vaded, or in such imminent danger as will not admit of delay." These
clauses of the constitution must be regarded as correlative to those
which grant to congress the power to declare war and to maintain
armies and navies. The general purpose of the whole is to invest
the entire power of making war, and of maintaining a military equip-
ment, in the national government, and to put it beyond the power
of the states to enter upon hostilities with each other or with foreign
nations. But it must be observed that the "troops" here intended
are such as constitute a stipendiary or standing army. The prohibi-
tion was not aimed at, nor does it affect, the militia of a state.**
•s Peete v. Morgan, 19 Wall. 581, 22 L. Ed. 201. Bee ^*Commerce*' Dec Dig.
{Key No.) Vi yi-JJ^; Cent. Dig. %% 12S-1S6.
•« Keokuk Northern Line Packet Co. v. Keoknk, 95 U. S. 80, 24 L. Ed. 377;
Parkersbarg & O. River Transp. Co. v. City of Parkersburg, 107 U. S. 691,
2 Sup. Ct. 732, 27 L. Ed. 584; Cannon v. New Orleans, 20 W^all. 577, 22 L.
Ed. 417 ; Cincinnati, P. B. S. ft P. Packet Co. v. Catlettsburg, 105 U. S. 559,
26 L. Ed. 1, 169 ; St Louis v. Wiggins Ferry Co., 11 Wall. 423, 20 L. Ed. 192 ;
Yicksburg ▼. Tobln, 100 U. S. 430, 25 L. Ed. 690 ; City of St Louis v. Eagle
Packet Co., 214 Mo. 638, 114 S. W. 21. See "Oammeroe,*' Dec. Dig, (Key No.)
H 57, 78; Cent. Dig. U 58, 75.
•B Morgan's Louisiana ft T. R. ft S. S. Co. y. Louisiana Board of Health,
118 U. 9. 455, 6 Sup. Ct. 1114, 30 L. Ed. 237. See ^'Commerce,** Deo. Dig.
iKey No.) I 51; Cent. Dig. i 49.
••The sovemor of a state, in employing the militia to auppreoi an Insur-
362 LEGISLATIVE POWER IN THE STATES.. (Ch. 13
IMPLIED LIMITATIONS IN STATE CONSTITUTIONS.
141. Beside the ezpreu limitatloiui upon, the legUlatiTe power im-
posed by the eonstitntion of a state, there are eertain limi-
tatioms implied from the distribution of the fnnetions of
BOTemn&ent, the nature of lesi^lative power, and the bound-
aries of state authority.
(a) The legislature must not usurp the powers, or eneroaoh upon
the proTinoe, of the exeoutiTO or Judicial department.
(b) The legislature oannot giTe e^terjritorial, y^lidity to its en-
aotntents.
<e> The legislature cannot alienate or su^^pender the goTemmental
powers, popular rights, or public property which it holds
in trust for the people.
(d> Public n&oney cannot be expended, by appropriations front the
treasury, for other than public purposes,
(e) Irrepealable . Immb jBannot be passed, unless it be in the f omi
of a contract founded upon a consideration*
Usurpation of Powers,
The rule that the legislature of a state may not lawfully usurp the
powers or prerogatives of the other departments of the government,
nor assume to invade the peculiar province of either, results from
the general principle of the apportionment of the powers of sover-
eignty between the three great branches of the government. This
principle, in its practical applications, was fully considered in an earlier
chapter, to which the reader is now referred.
Territorial Restriction,
The la'ws of a state can have no exterritorial validity. That is, a
state has power to legislate only concerning such subjects as are with-
in its physical limits or the confines of its jurisdiction, and concern-
ing such persons as, by citizenship or inhabitancy, are within the
sphere of its operations. Its laws cannot affect subjects of property
which are beyond its limits, except in so far as its own people may
have dealings with them. Nor can its laws affect citizens or inhab-
itants of other states or countries, except in so far as, by making a
sojourn within the state, they make themselves amenable to its regu-
lations, or invoke the aid and protection of its laws by dealing with
property subject to its local jurisdiction or seeking the remedies af-
forded by its courts. This, then, constitutes an implied limitation upon
the powers of a state legislature, but not because it is specifically pro-
hibited by the constitution, but because what is beyond the power of
§ 141) IMPLIED LIMITATIONS IN STATE GONSTTTUTIOKS. 363
the people of a state, as a whole, cannot be within the power of their
representatives who are intrusted with the making of their laws. And,
as a rule of interpretation, every statute is presumed to be intended to
be confined in its operation to the persons, property, rights, or con-
tracts which are within the territorial jurisdiction of the legislature
which enacted it. The presumption is always against any intention to
attempt giving to the act an exterritorial operation and effect.*^
On this principle, it is held that the taxing power of a state is lim-
ited to persons and property within and subject to its jurisdiction.
For instance, no state could impose taxes upon land lying within the
confines of another state,* • nor upon intangible personal property
owned by nonresidents.** For the same reason, the civil damage laws
— giving a right of action against liquor sellers to innocent parties
who sustain injury by the intoxication of persons supplied with liquor
by the defendants — have no exterritorial operation or effect.^* And
the same rule is applied in the case of the statutes, now quite common
in the United States, which give a right of action for damages to the
surviving family, or the personal representatives, of a person who has
been killed by the wrongful act, omission, or default of another.^*
rection, acts in a cItH capacity merely as the chief magistrate of the atate;
beuce the arrest of an insurrectionist by the military forces and their refusal
to surrender him to the civil authorities foR trial prior to the suppression of
the insurrection is not a violation of the constitutional provision that the
military shall alvirays be in strict subjection to the civil povirer. In re Moyer,
35 Ck>1o. 159, 85 Pac. 190, 12 L. R. A. (N. S.) 979, 117 Am. St Rep. 189. Bee
**Con9titutional Law,'* Dec. Dig, {Key No.) | 82.
«7 Bond V. Jay, 7 Cranch, 350, 3 L. Ed. 367; Noble v. The St. Anthony, 12
Mo. 261; Ex parte Blain, 12 Ch. Div. 522; Jefferys v. Boosey, 4 H. L. Cas.
815 ; Hendrickson v. E^es, 45 N. J. Law, 555 ; The Ohio v. Stnnt, 10 Ohio St.
582. See **Limitati(m of Actions,** Dec. Dip. (Key No.) I 87; Cent. Dig. f ^57;
*'Maritim€ Liens,** Dec. Dig. (Key No.) S 19; Cent, Dig. f 25; "Judgment,**
Deo. Dig. (Key No.) § U; Cent. Dig. § 61; **8hipping,** Dec. Dig. (Key No.) ^
85; Cent. Dig. { 3S6.
••Appeal of Drayton, 61 Pa. 172; Winnipiseogee Lake Cotton ft Woolen
Mfg. Co. V. Gilford, 64 N. H. 337, 10 Atl. 849. See "^Taxation,** Dec. Dig. (Key
No.) i 20; Cent. Dig. if 51-5^.
•» Case of State Tax on Foreign-Held Bonds, 15 Wall. 317, 21 L. Ed. 179.
See '•Taxation,** Dec. Dig. (Key No.) { 20; Cent. Dig. i 51.
TO Goodwin T, Young. 84 Hun (N. T.) 252, See "Courts,** Dec Dig. (Key No.)
I 6; Cent. Dig. S 22.
ri Beach y. Bay State Steamboat Co., 30 Barb. (N. T.) 433; Whitford v.
Panama R. Co.» 23 N. Y. 465. See "Death,** Dec Dig. (Key No.) i 8; Cent.
Dig. i 12.
864 LBOISLATIVB POWER IN THB 8TATB8. (Ch. IS
The rights and jurisdiction of the several states over the sea ad*
jacent to their coasts are those of an independent nation, except as
qualified by any right of control granted to the United States by the
constitution. And where, by the constitution and laws of a state, her
boundaries and those of her counties are three miles from the shore,
her statutes giving an action for death by negligence are operative
within such boundaries, where death occurs by negligence in the navi^
gation or towage of vessels.^*
Legislature as a Trustee.
Another implied limitation upon the power of a state legislature
may be found in the fact that it holds certain governmental powers,
and certain kinds of public property, in trust for the people. That the
great powers of taxation and police are thus held under a trust which
forbids their surrender by the legislature or their irrevocable aliena-
tion to private persons will fully appear from other parts of this work.
And the application of a similar doctrine to property belonging to the
people as a whole was made in the celebrated "Chicago Lake Front
Case." ^* Herein it was stated that the title which a state holds to
lands under tide waters bordering on the sea or under the navigable
waters of the Great Lakes, lying within her limits, is different in char-
acter from the title of the state to lands intended for sale, or from that
of the United States to the public lands which are open to pre-emption
and sale. It is a title held in trust for the people of the state, that they
may enjoy the navigation of the waters, carry on commerce over them,
and have liberty of fishing therein, free from obstruction or inter-
ference by private parties. And it is not within the legislative power
of the state to abdicate this trust by a grant whereby it surrenders
its property and general control over the lands of an entire harbor,
bay, sea, or lake though it may grant parcels thereof for the founda-
tion of wharves, piers, docks, and other structures in aid of commerce,
or parcels which, being occupied, do not substantially impair the pub-
lic interest in the waters remaining.
72 Manchester v. Massachusetts, 139 U. S. 264, 11 Sup. Ct 559, 35 L. Ed.
159; Humboldt Lumber Manufacturers' Ass*n v. Chrlstopherson, 19 C. C. A.
481, 73 Fed. 239, 46 L. R. A. 204. And see Bigelow v. Nlckerson, 17 C. C. A.
1, 70 Fed. 113, 80 L. R. A. 336, See "States,*' Deo, Dig. {Key No.) f 12; Cent.
Dig. K 9, 10. m
78 Illinois Cent R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed.
1018. And see Corrlgan v. Brown (C. C.) 169 Fed. 477. But compare Sun-
bury ft E. R. Co. ▼. Cooper, 33 Pa. 278. See **Navigable Waters,'* Deo. Dig,
{Key No.) U 96, SI; Cent. Dig. Sf m, 20S.
/. '
§ 141) IMPLIED LIMITATIONS IN STATE CONSTITUTIONS. 365
Appropriations, and Expenditure of the Public Money.
The control, administration, and disposition of the property and
funds of the state, and the appropriation thereof to the pa3rment of
debts, are powers appertaining exclusively to the legislative depart- ^ ,/ J
ment, and cannot be delegated to or exercised by the judicial or ex-
ecutive departments.^* In most of the states, the constitutions pro- , ' V
vide that no money shall be drawn from the treasury except under / ,
appropriations duly made by law. An appropriation, as applicable to ^
the general fund in the treasury, is an authority from the legislature,
given at the proper time and in legal' form to the proper officers, to
apply sums of money out of that which may be in the treasury, in a
given year, to specified objects or demands against the state.^* No
matter how just or equitable a claim against the state may be, no duty
devolves upon the fiscal officers to pay the same, until an appropria-
tion is made by law for that purpose.^* In a few of the states, it is
constitutionally provided that appropriations shall not be made for a
longer term than two years. But, in the absence of such a specific
restriction, the control of the legislature over this subject is plenary,
and there is nothing to invalidate continuing appropriations; that is,
T4 Garter v. State, 42 La. Ann. 927, 8 Soath. 836, 21 Am. St Rep. 404 ; Carr
T. State, 127 Ind. 204, 26 N. n. 778, 11 L. R. A. 870, 22 Am. St. Rep. 624. See
^'Conetitutional Laic*' Dec. Dig. (Key yo.) K 59S6; Cent, Dig. M 8^-122.
tB RiBtine ▼. State, 20 Ind. 328; Providence Washington Ins. Co. v. Weston,
63 Neb. 764, 89«N. W. 2S8. An appropriation "made by law** ia an appropria-
tion made either by direction of the constitution itself or by the legislature in
the manner prescribed by the constitntion. Weston v. Herdman, 64 Neb. 24,
89 N. W. 884. Hence a Joint resolution, adopted by both bouses of the legis-
lature, but without an enacting clause, is not sufficient as an appropriation.
In re Advisory Opinion, 43 Fla. 305, 31 South. 348. The constitutions of some
states (as California) provide that "no bill making an appropriation for money,
except the general appropriation bill, shall contain more than one item of ap-
propriation, and that for one single and certain p\yrpose.** Hence a statute
making an appropriation for the payment of five distinct claims of different
persons is void. Sullivan v. Gage, 145 Cal. 759, 79 Pac. 537. All preferred
appropriations for a given fiscal year, whether continuing or made at the legis-
lative session for that year, are of the same relative rank. Stuart v. Nance,
28 Colo. 194, 63 Pac. 323. See ** States,** Deo. Dig. (Key No.) K 129-13S; Cent.
Dig. n 127-131.
T6 Collier & Cleveland Lithographing Co. v. Henderson, 18 Colo. 259, 32 Pac.
417; Hager v. Sidebottom (Ky.) 113 S. W. 870; Park v. Candler, 113 Ga.
^7, 39 S. E. 89 ; State v. Moore, 50 Neb. 88, 69 N. W. 373, 61 Am. St. Rep.
538; Kingsbury v. Anderson, 5 Idaho, 771, 51 Pac. 744; State v. Capdevlelle
(La.) 49 South. 1006w See ''States,** Dec. Dig. (Key No.) i ISO: Cent. Dig.
366 LEOISLATIYB POWER IN THB STATES. (Cb. IS
those the payment of which is to be continued beyond the next session
of the legislature.^^ And it is within the power of the legislature to
appropriate the public revenues in anticipation of their receipt; it is
not necessary to the validity of an appropriation that the funds to
meet it should be in the treasury at the time."'* But where, as is
sometimes the case, the legislature is forbidden to make appropria-
tions in excess of the revenue of the state, this requirement is man-
datory, and it is the duty of public officers connected with the adminis-
tration of the state finances to treat as void every appropriation in
excess of the constitutional limits.^*
Same— Purposes of Appropriation — Bounties and Gifts to Private
Persons.
It is a general principle of law that the money raised by taxation may
not be appropriated and paid out of the public treasury for other than
public purposes. Whether money appropriated by the legislature was ,
intended for a public or a private purpose must be determined from
the statute itself, and from such considerations as the court can ju-
dicially notice; and it is not competent to take proof and determine
the question as a matter of fact.'® But it is not always easy to de-
termine the nature of the object of an appropriation, as public or pri-
vate. For instance, it is unquestionably within the power of the
legislature to maintain public charities, and provide for the care of
the indigent, destitute, and insane, either in institutions .exclusively
under state control or those maintained by corporations for purely
charitable purposes.** So also money may be appropriated for the
TT In re Continuing Appropriations, 18 Colo. 192, 82 Pac. 272. See Moore
V. Alexander, 85 Ark. 171, 107 S. W. 895; State v. Frazee, 105 La. 250, 29
Soath. 478; Flecten t. Lamberton, 69 Minn. 187, 72 N. W. 05; State v.
Moore, 50 Neb. 88, 09 N. W. 373, 61 Am. St. Rep. 538; State v. Brian, 84 Neb.
30, 120 N. W. 916. See ••flftate»," Dec, Dig. (Key yo.) i ISl; Cent. Dig. i 129.
Ts stein v. Morrison, 9 Idaho, 426, 75 Pac. 240. fifee **Stat€8,*' Dec. Dig.
(Key No.) U ISl, 1S2; Cent. Dig. H 1^9, ISO.
T» Henderson v. People, 17 Colo. 587, 31 Pac. 334. Bee **8tatee,** Deo. Dig.
(Key No.) {f 131, 1S2; Cent. Dig. U 1^9, ISO.
•0 Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 345, 28 N. E. 358, 14
L. R. A. 481 ; Oxnard Beet Sugar Co. v. State, 73 Neb. 57, 105 N. W. 716 ;
Fox y. Mohawk ft H. R. Humane Soc., 165 N. Y. 517, 59 N. B. 353, 51 L. R. A.
681, 80 Am. St Rep. 767. See ^'States,'' Deo. Dig. (Key No.) (§ 114, 119. 129-
ISS.
•^ Board of Directors of Woman's Relief Corps Home Ass'n of California*
T. Nye, 8 Cal. App. 527, 97 Pac. 206 ; Hager v. Kentucky Children's Home Soc,
119 Ky. 235, 83 S. W. 606, 26 Ky. Law Rep. 1133, 67 L. B. A. 815. Bee *'Btate$;'
Dec. Dig. (fey No.) i 114; Cent. Dig. | 119.
/
§ 141) IMPLIED LIMITATIONS IN STATE CONSTITUTION& 367
State and county system of schools,*' and to aid colleges and universi-
ties.** Again, it is not unlawful to expend the public money in the
construction of necessary public buildings and the construction and
maintenance of public roads and other such works,*^ unless the state
is forbidden by the constitution from engaging in works of internal
improvement. •* Appropriations have sometimes teen made for the
relief of sufferers from general and wide-spread public calamities,
such as disastrous fires, floods, or cyclones, or a general failure of
the crops ; but they have generally been held unconstitutional.** On
the other hand, the grant of pensions or rewards for military service,
and even for conspicuous services rendered in civil life, has always
been sustained; •^ though a gift of money to a private individual, to
reimburse him for financial loss or personal injuries, for which the
state is not responsible, either on general principles of law or by rea-
son of any statute, is a gratuity and not sustainable.** Bounties of-
fered for the encouragement or improvement of agriculture, or the
development of natural resources in the direction of particular agri-
cultural products, or in aid of manufacturing or commercial enter-
•« Pfelffer v. Board of Education of Detroit, 118 Mich. 560, 77 N. W. 250,
42 Lw R. A. 536. Sec "SchooU and School DiairicU,*' Deo, Dig, (Key, No.) i 165.
•8 People ▼. Brooklyn Cooperage Co., 187 N. Y. 142, 79 N. E. 866. See
**8tatesr Dec. Dig. (Key No.) i 119.
•« BonBal T. Yellott, 100 Md. 481, 60 Ati. 683. 69 L. R. A. 914; Benedict t.
City of New Orleans, 115 La. 645, 39 Soutli. 792 ; Eltlng t. Hickman, 172 Mo.
237. 72 S. W. 700. See ''States;* Dec. Dig. (Key No.) U lU, 119, 12S.
S5 Burke v. Snlvely, 208 111. 828, 70 N. B. 327; State y. Kelly, 71 Kan. 811,
81 Pac.*450, 70 L. R. A. 450; State t. Froeblich, 115 Wis. 32, 91 N. W. 115.
58 L. R. A. 757, 95 Am. St Rep. 894. See "fiftate*," Dec. Dig. (Key No.) §S
m, 119, 123.
•• Lowell y. City of Boaton, 111 Mass. 454, 15 Am. Rep. 39 ; State y. Osaw- >
kee Tp., 14 Kan. 418, 19 Am. Rep. 99; Patty y. Colgan, 97 Cal. 261, 31 Pac. -" 1
1133, 18 L. R. A. 744. But see State y. Davidson, 114 Wis. 563, 90 N. W. 1067, '
58 L. R. A. 739 ; State y. Nelson County, 1 N. D. 88, 45 N. W. 33, 8 L. R. A.
283, 26 Am. St Rep. 609. See '^States;' Deo. Dig. (Key 2fo.) H II4, 119; Cent.
Dig. U US, 118.
•T Abl y. Gleim, 62 Pa. 432 ; Speer y. School Directors, etc., of Borough of
Blairsyille, 60 Pa. 160; Booth y. Town of Woodbury, 32 Conn. 118; Opinion
of Justices, 175 Mass. 699, 67 N. E. 675, 49 L. R. A. 664 ; Opinion of Justices,
190 Bfass. 611, 77 N. E. 82a Bee ''States;' Dec. Dig. (Key No.) U 114, 119;
Cent. Dig. U US, 118; "Bounties;' Dec Dig. (Key. No.) i i; Cent. Dig. U
1-SS.
•• Bristol y. Johnson, 84 Mich. 123 ; Bourn y. Hart, 93 Cal. 321, 28 Pac.
951, 15 H B. A. 481, 27 Am. St Rep. 208; Ex parte Smythe (Tex. Cr. App.)
120 & W. 20a See "States;' Dee. Dig. (fey No.) i 119; Cent. Dig. f 118.
368 LBOISLATIVE POWER IN THB STATES. (Ch. 13
prises, have almost always been held invalid ; •• though it is otherwise
as to bounties given for the destruction of wolves, coyotes, and other
dangerous or destructive wild animals.** Industrial and commercial ex-
l\ ^ positions and fairs, whether confined to the limits of the state or
f^^ '. ^ interstate or international in their scope, are held to be public ^ur-
^ poses, such as to justify the appropriation of state funds In their
ffWbr for exhibiting the resources and products of the state.** And
an appropriation to pay a claim against the state is not invalid because
the claim is not of such a nature as to be enforceable at law, but the
legislature may recognize and pay a claim founded on justice and
equity or resting on a merely moral obligation.**
Irrepealable Laws.
Every legislative body, unless restricted by the constitution, may
modify or abolish the acts of its predecessors. And there is no way
••Oxnard Beet Sugar Co. v. State, 73 Neb. 57, 105 N. W. 716; Michigan
€k>m Imp. As8*n y. Auditor General, 150 Mich. 69, 113 N. W. 582; Deering
A Co. y. Peterson, 75 Minn. 118, 77 N. W. 568; Deal ▼. Mississippi County,
107 Mo. 464, 18 S. W. 24, 14 L. R. A. 622 ; Parkersburg v. Brown, 106 U. S.
487, 1 Sup. Ct 442, 27 L. Ed. 238 ; Citizens' Saving ft Loan Ass'n v. Topeka,
20 Wall. 655, 22 L. Ed. 455 ; Commercial Nat. Bank ▼. Tola, 2 Dill. 353, Fed.
Cas. No. 3,061 ; English t. People, 96 111. 566 ; Bissell v. City of Kankakee,
64 111. 249, 21 Am. Rep. 554; Weismer ▼. Village of Douglas, 64 N. Y. 91,
21 Am. Rep. 586; Allen v. Inhabitants of Jay, 60 Me. 124, 11 Am. Rep. 185;
Brewer Brick Co. ▼. Inhabitants of Brewer. 62 Me. 62, 16 Am. Rep. 395. But
•compare United States v. Realty Co., 163 U. S. 427, 16 Sup. Ct 1120, 41 L.
Ed. 215. See "States^* Dec. Dig. (Key No.) U Hh 119; Cent. Dig. H US, 118.
•0 Dimmit County v. Frazier (Tex. Civ. App.) 27 S. W. 829 ; In re Bounties,
18 Colo. 273, 32 Pac. 423 ; Bickerdlke v. State, 144 Cal. 681, 78 Pac. 270. See
*'Bountie8,** Dec. Dig. (Key No.) § 8; Cent. Dig. f 42.
•1 Daggett V. Oolgan, 92 Cal. 53, 28 Pac. 51, 14 L. R. A. 474, 27 Am. St. Rep.
95 ; Norman t. Kentucky Board of Managers of World's Columbian Exi)osi-
tion, 93 Ky. 637, 20 S. W. 901, 18 L. R. A. 556; City of Minneapolis v. Jan-
ney, 86 Minn. Ill, 90 N. W. 312 ; Kentucky Live Stock Breeders' Ass*n y. Hag-
er, 120 Ky. 125, 85 S. W. 738, 27 Ky. Law Rep. 518f In Russ v. Common-
wealth, 210 Pa. 544, 00 Atl. 109, 1 L. R. A. (N. S.) 409, 105 Am. St. Rep. 825,
it was held that there was nothing in the constitution of Pennsylvania to
prohibit the legislature from attending a patriotic celebration in another state
in a body or to prevent the payment of their expenses for meals out of the
public funds. Bee ^'States,** Dec. Dig. (Key No.) §i lU, 119; Cent. Dig. §|
lis, 118.
•aMcSurely v. McGrew (Iowa) 118 N. W. 415; State v. Froehlich, 118
Wis. 129, 94 N. W. 50, 61 L. R. A. 345, 99 Am. St. Rep. 985; Civic Federa-
tion V. Salt Lake County, 22 Utah, 6, 61 Pac. 222; Lycoming County v. Union
County, 15 Pa. 166, 53 Am. Dec. 575 ; New Orleans Vi Clark, 95 U. S. 654, 2ii
L. Ed. 521. See ''States;' Deo. Dig. (Key No.) § 119; Cent. Dig. i 118.
§ 142) PRIYATB, SPECIAL, AND LOOAL LEGISLATION. 369
in which a legislative act can be made irrepealable, except it assume
the form and substance of a contract.*' Nor can one legislature be
bound by the acts of another as to the mode in which it shall exercise
its constitutional powers.**
PRIVATE, 8PEOXAL, AlTD LOCAL LEOI8LATIOK.
142. la atost of ike states, tl&e enaotment of priTatOy looalf or spe-
oial laws is f orbiddea by the eomstitiitloau
In some of the states, this restriction extends only to cases in
which general laws could be made applicable. In others, many sub-
jects are enumerated on which private or special legislation is for-
bidden. In several of the states, the prohibition is directed against
the enactment of private or local statutes regulating the internal
affairs of towns and counties. Many state constitutions also provide
that charters of incorporation shall be granted only in accordance with
general laws, and not by special acts of the legislature. In some of the
states, a still different form is found, which provides that all laws of a
general nature shall be uniform in their operation throughout the
state. All these provisions are mandatory, and any laws which are
found to be in violation of them will be declared unconstitutional by
the courts.
The object of provisions of this sort is twofold. On the one hand,
they are designed to deter the legislature from usurping judicial func-
tions and invading the peculiar province of the courts. And on the
other hand, they are intended to prevent the enactment of laws char-
acterized by favoritism, partiality, or invidious discriminations against
persons or localities. A constitutional prohibition is needed to with-
draw such power from the legislature. Where there is no constitu-
tional restriction against the passage of private or local laws, they are
within the legislative competency and the courts cannot hold them
unconstitutional.** A private statute is one which operates only upon
particular persons or private concerns.** And a law is "local" which,
»• Bloomer v. Stolley, 5 McLean, 158, Fed. Cae. No. 1,559. See "Statutes,**
Dee. Dig, {Key No,) S U9; Cent. Dig. f 218.
»« Brightman v. Kimer, 22 Wis. 54. See '^Statutes,** Dee. Dig. (Key No.)
I U9; cent. Dig. { 218,
»» Beyman v. Black, 47 Tex. 558. See '^Statutes,** Dec. Dig, (Key No.) |
66; Cent. Dig. I 67.
•• 1 Bl. Gomm. 86; Gubner ▼. McOlellan, 130 App. Dlv. 716, 115 N. Y. Supp.
755. See ^'Statutes,** Dec Dig. (Key No.) i 77; Cent, Dig. 1 19.
Bl.Conbt.L.(3d.Ed.)— 24
370 LBOISLATIVE POWER IN THE STATES. (Ch. 13
instead of relating to and binding all persons, corporations, or institu-
tions to which it may be applicable, within the whole territorial juris-
diction of the law-making power, is limited in its operation to certain
districts of such territory or to certain individual persons or corpora-
tions.'^ The fact that a statute is limited as to the time of its dura-
tion does not make it a local or special law, but such an act is termed
a temporary one. A local or special statute is one limited in the ob-
jects to which it applies; a temporary statute is limited merely in
its duration. Necessarily a local or special law may be perpetual,
while a general law may be temporary.** A good illustration of laws
of this objectionable character is found in a statute passed in In-
diana in 1879, "legalizing the practice of circuit courts in entering
judgments on the first day of the term." It was held to be unconsti-
tutional, as being both local and special in its provisions. It was
special because it did not apply to all judgments which might have
been or might be taken on the first day of the term. And It was local
because it did not in terms legalize the judgments of all the circuit
courts of the state which had been theretofore taken on the first day
of the term, but only of such of those courts as had "adopted rules
of practice making the summons in civil causes returnable on the first
day of the term." ••
The prohibition against local and special laws is not to be evaded
by merely calling the statute a general law. This device has many
J • times been frustrated by the courts. A law which purports by Jts^
* ' terms to be made for the whole state, but which then proceeds by
exceptions, reservations, or provisos, to withdraw from its operation
all but one or a few persons, or a special class of persons, or all but
one or a few cities or counties, is in reality a private or local law,
and will be so declared by the judicial department.^®® Thus, an
•T Kerrigan v. Force, 68 N. Y. 381. See State v. Pitts (Ala.) 49 South. 441.
Bee '^Statutes," Dec. Dip. (Key No.) | 77; Cent, Dig. § 79.
•8 People v. Wright, 70 111. 38a See ''Statutes,'* Dec. Dig. {Key No.) i 77;
<fent. Dig. f 79.
•• Mitchell y. McGorkle, 69 Ind. 184. See ''Statutes,'' Dec. Dig. {Key No.) ^
10 Jt; Cent. Dig. § 116.
100 State V. Herrmann, 75 Mo. 840; State v. Mayor, etc., of Jersey City, 45
N. J. Law, 297 ; Belleyllle & I. R. Co. v. Gregory, 15 111. 20, 58 Am. Dec. 589 ;
Coutieri V. Mayor, etc., of Cltj of New Brunswick, 44 N. J. Law, 58 ; Woodard
V. Brlen, 14 Lea (Tenn.) 520; City of Topeka v. Gillett, 32 Kan. 481, 4 Pac.
800 ; State v. City of Lawrence, 79 Kan. 284, 100 Pac. 485. Bee "Statutes,'*
Dec. Dig. {Key No.) {§ 66-104; Cent. Dig. U 67-116.
§ 142) PRITATE, SPECIAL, AND LOCAL LEGISLATION. 371
act which by its terms can have application to but one county within
the state, although purporting to be a general law, applicable to all
counties having a certain population, is special legislation.^** But a
law in relation to cities and villages is not necessarily a local or special
law because there may be certain cities and villages, organized undier
special charters, to which it does not apply.*** But an act relating to
the fees of the sheriflF of a single county is clearly a local act.*** In
Pennsylvania, it is held that the classification of the cities of the state
according to their population (with reference to their form of govern-
ment and their corporate powers) is a proper and constitutional
method, and is not open to objection on the charge of being special
legislation.*** But it is also there ruled that an act excluding per-
petually from its operation all counties containing more than 160,000
or less than 10,000 inhabitants is a local law; for the perpetual ex-
clusion of certain counties from the operation of a law is not a classi-
fication of the counties.*** In New York, where the constitution
prohibits the passage of local or private bills for "laying out or open-
ing roads, highways, or alleys," it is considered that this is not ap-
plicable to streets in cities.***
In those states where the constitution prohibits local or special laws
only in cases where a general law could be made applicable, there
has been some difference of opinion as to what department of the
government is to determine whether or not a general law could have
been made applicable to the case in point. The better opinion seems
to be that while the legislature must determine this question in the
first instance, yet their decision is not final or conclusive, but the courts
must also consider and decide upon the applicability of a general law,
when the act passed is regularly presented to them for review, and
101 Devine v. Board of Com'rs of Cook County, 84 HI. 590. See **8tatute8,*'
Dec. Dig. (Key No.) f 77; Cent. Dig. i SI.
loapotwin V. Johnson, 108 JU. 70; People v. Newburgh ft S. P. R. Co., 86
N. X. 1. Bee ''Btatutesr Deo. Dig. (Key No.) | 77; Cent. Dig. I 79.
108 Gabkln y. Meek, 42 N. Y. 186. Bee "Statutes,** Dec. Dig. (Key No.) U
77. 102; Cent. Dig. U 79, IH.
104 Wheeler r. City of Philadelphia, 77 Pa. 338 ; Commonwealth v. Patton,
88 Pa. 25a And see City of LoulsvUle v. Com. (Ky.) 121 S. W. 411. Bee
''Statutes;* Dec Dig. {Key No,) ff 77, 92; Cent. Dig, fi 79, 101.
lOB Morrison v. Bachert, 112 Pa. 322, 5 Atl. 739. See "Stattites,** Dec Dig.
{Key No.) i 77; Cent. Dig. { 81.
106 In re Lexington Ave., 29 Him (N. Y.) 803. Bee ''Statutes;' Dec Dig.
(ICey No.) i 97; Cent. Dig. § 109.
372 LBGISLATIVB POWER IN THB STATES. (Ch. 13
must decide upon its constitutionality according to their opinion of
the facts."^
In some of the states, as above mentioned, the constitution contains
a provision against the enactment of private or special laws "regulat-
ing the internal aifairs of towns and counties." It is held that this
applies equally to cities.*** It is violated by a law which, while general
in form, serves bul to give a salary to a single officer of a single
county,*®* as also by a statute conferring upon all cities having a pop-
ulation of not less than 25,000 the power of issuing bonds to fund their
floating debt.*** In those states where the legislature is prohibited
from creating corporations by special act, or from conferring corpo-
rate powers by special law, this provision is understood as applying
only to private corporations and not to municipal bodies.*** It does
not prohibit the legislature from passing a special act changing the
name of an existing corporation and giving it the power to purchase
the property and franchises of another existing corporation.*** But
an act granting rights to a single corporation in reference to specific
property in a certain location is void under this prohibition.***
The other form of prohibition mentioned in the text (that requir-
ing that all laws of a general nature shall be uniform in their opera-
tion) is quite different in its meaning and effects. It does not entirely
107 state V. Mayor, etc., of Newark, 40 N. J. Law, 71 ; People v. Allen, 42
N. Y. 378. Compare Board of Ck>m'rs for Filling Certain Slough Ponds in
City of Bt Louis v. Shields, 62 Mo. 247. And see Guthrie Nat. Bank v. Guth-
rie, 173 U. S. 528, 19 Sup. Ct. 513, 43 L. Ed. 796 ; Board of Com'rs Kearney
County, Kan., v. Vandriss, 115 Fed. 866, 53 C. O. A. 192 ; Mt Vernon y. Eyans
& Howard Fire Brick Co., 204 111. 32, 68 N. E. 206 ; Wheeler y. Herbert, 152
Cal. 224, 92 Pac. 353; Buist v. dty CouncU of Charleston, 77 S. O. 260, 57
S. E. 862 ; City of Oak Cliff y. State, 97 Tex. 383, 79 S. W. 1. See **Con8titu^
tional Law,** Dec Dig, (Key No,) § 70; Cent. Dig. § ISO.
io« State y. Parsons, 40 N. J. Law, 1. See **StatutC8,** Deo. Dig, (Key No.)
I 94; Cent. Dig. f 103.
io» Gibbs V. Morgan, 39 N. J. Eq. 126. See "Statutes," Dec. Dig. (Key No.) |
102; Cent. Dig. § 114^
110 State V. City of Trenton, 42 N. J. Law, 486. See "Statutes,** Dec. Dig.
(Key No.) § 77; Cent. Dig. f 81.
111 State y. Mayor, etc., of Newark, 40 N. J. Law, 71. But see Straw y.
Harris (Or.) 103 Pac 777. See **Statutes,** Deo. Dig. (Key No.) H 80, 90;
Cent. Dig. ff 89, 99.
lis Wallace y. Loomis, 97 U. S. 146, 24 L. Ed. 895. See "Statutes," Deo.
Dig. (Key No,) | 80; Cent. Dig. f 87.
lis In re Union Ferry Co. of Brooklyn, 32 Hun (N. Y.) 82. Bee **Btatute99**
Dec Dig. (Key No.) I 79; Cent. Dig. | 84.
§§ 143-144) DELBOATION OF LEGISLATIVE POWEB& 373
forbid the enactment of local or special laws. A statute is understood
to be general and uniform in its operation when it operates equally
upon all persons who are brought within the relaticms and circum-
stances provided for;^^^ or when it applies equally to all persons
within the territorial limits described in it, although not appl3ring to
all parts of the state.^** A revenue law, for example, is constitutional,
so far as concerns this provision, if it aif ects, as nearly as possible, all
persons and property alike ; a revenue law which should be absolutely
equal in its operation is an impossibility.^^* So an act fixing the rate
of interest which may be charged by pawnbrokers is not in violation of
this provision.**^
The constitutions of many of the states contain provisions to the
effect that there shall be no grant of special privileges, immunities, or
emoluments to any citizen or class of citizens, unless in consideration
of public services rendered. This, however, it is considered, has no
reference to the private relations of the citizens, nor to the action of
the legislature in passing laws regulating the domestic policy and busi-
ness affairs of the people or any portion of them.^^*
BELEGATIOH OF USGULATIVE POWXBE.
148. I««sifllAtlTe powcrg smuLted to the les^slAtvre hy tke ooastltw*
tlon Muiaot lie delegated 1>7 It to mmj etker hodj am
144. Tide prlaeiple does not apply to-
la) The Bvant to aumieipal eorporatlone of lesielatlTe poiri
loeal pmrpoeee.
(b> Loeal optioA laws*
(e> General laws whleh are to tahe effect npon a fntvre eontln-
seney, other than ratlfteation hy popvlar Tote.
ii^McAanich v. Mississippi ft M. R. Oo^ 20 Iowa, 88& See ^'Statutet,''
Dec, Dig. (Key No.) | 71; Cent, Dig. | 71.
11 • Cordova v. State, 6 Tex. App. 207. See "Siaiutei,'' Deo, Dig. (Key Vo.)
I 68; Cent. Dig. i 70.
11* People ▼. Coleman, 4 Cal. 46, 00 Am. Dec. SSL See "Statutes,*' Deo,
Dig. (Key No.) | 72; Cent, Dig. | 72.
iir jaduon y. Shawl, 29 Cal. 287. See "Conatitutional Law,** Deo. Dig,
(Key No,) I 205; Cent. Dig, | 615; '^Pavmhrokera,** Cent. Dig. | 6; "Uiury,**
Cent. Dig, i H9.
lis THlliams v. Cammack, 27 Miss. 200, 61 Am. Dec. 606. And see Smith's
Adm'r y. Smith, 1 How. (Miss.) 102. See **Oon8titutional Law,** Deo. Dig,
(Key No.) H 20i-208; Cent. Dig. U 691-677.
I
374 LBGISLATIVE POWER IN THE STATES. (Ch. 13
Delegation of Legislative Powers Forbidden,
It is a general principle of constitutional law that the power con-
ferred upon the legislature by the constitution to make laws cannot
be delegated by that body to any other person or authority, in any
such manner as to preclude the resumption of the power, or of its
exercise, whenever the public interest requires it. The legislators are
the agents or trustees of the people, and they have no right or power
to place the trust irrevocably in other hands than their own.^**
On the same principle, the legislature cannot confer upon a private
corporation power to enact by-laws contravening, repealing, or in any
wise changing the statutory or common law of the state. ***^ But
this rule does not forbid the legislature to grant a franchise or right
dependent on a condition of obtaining consent from another body.
For instance, it may create a corporation with power to lay a street
railroad, subject to the condition of obtaining the consent of the city
to the use of the street.^^^
Municipal Corporations.
Municipal corporations are regarded as subordinate agencies of
government, created with a view to the more judicious and effective
administration of local governmental affairs. The legislature has
power to erect such corporations, and to invest them with such
powers and prerogatives as are necessary to enable them to make
rules for the government of their own affairs, particularly in mat-
ters of tasMition and police, provided that their by-laws and ordi-
"• Clark V. Mayor, etc., of Washington, 12 Wheat. 40, 54, 6 L. Ed. 544;
City of Philadelphia v. Fox, 64 Pa. 169; Ex parte Cox, 63 Cal. 21; Brown
V. Flelschner, 4 Or. 132; Rice y. Foster, 4 Har. (Del.) 479; Cincinnati, W. &
Z. R. Co. V. Clinton County Com'rs, 1 Ohio St 77 ; State v. Young, 29 Minn.
474, 9 N. W. 737 ; Burcher v. People. 41 Colo. 495, 93 Pac. 14, 124 Am. St.
Rep. 143 ; State v. Budge, 14 N. D. 532, 105 N. W. 724 ; Ruggles v. Collier,
43 Mo. 353 ; People v. Hanrahan, 75 Mich. 611, 42 N. W. 1124, 4 L. R. A. 751 ;
State v. Great Northern R. Co., 100 Minn. 445, 111 N. W. 289, 10 L. R. A. (N.
S.) 250; Thalhelmer v. Board of Supers of Maricopa County (Artz.) 94 Pac.
1129 ; Brookings County v. Murphy (S. D.) 121 N. W. 793 ; Wyeth v. Board of
Health of City of Cambridge, 200 Mass. 474, 86 N. E. 9^, 128 Am. St Rep.
439. See '^Constitutional Law," Deo, Dig. (Key No.) H 59-66; Cent. Dig. U
89-122.
ISO Seneca County B&nk y. Lamb, 26 Barb. (N. Y.) 595. See "'Constitutional
Law," Dec. Dig. {Key No.) § 64; Cent. Dig, | 92.
i«i City of Philadelphia v. Lombard & S. St Paps, Ry. Co., 4 Brewst (Pa.)
14 ; People ex rel. Blanding v. Burr, 13 Cal. 343. See *Vonstitutional Law,**
Deo. Dig. {JKey No.) §f 63, 66; Cent, Dig. %% 109, 115.
S§ 143-144) DBLEOATION OF LBOI8LATIVB POWERS. 875
nances shall not be inconsistent with the general laws of the state.
This is not to be regarded as an unlawful delegation of legislative
power. For the legislature retains control over such corporations,
to the extent that it may, in its discretion, resume or recall the powers
granted out, unless in so far as these powers are secured to the mu-
nicipalities by the constitution.^** For similar reasons, statutes creat-
ing municipal corporations or providing a form of government for
them, imposing liabilities upon them or authorizing them to incur
obligations, consolidating municipalities or changing the boundary
line between them, changing the location of county seats or authorizing
the annexation of territory, may be referred to the people of the dis-
tricts immediately affected, to decide by their votes whether they
will accept the proposed legislation; but the legislature must enact
a complete and valid law according to the prescribed usages, and it
must derive its whole vigor and vitality from the legislature, and no
additional efficacy from the popular vote.**' So the enactment of a
law comprising general and uniform regulations for cities and towns
i«« People V. Plnckney, 82 N. T. 377 ; State t. Noyes, 30 N. H. 279 ; Perry
T. City of Rockdale, 62 Tex. 451 ; Little Rock v. North Little Rock, 72 Ark.
105, 79 S. W. 785 ; Splegler ▼. Chicago, 216 lU. 114, 74 N. E. 718 ; Chicago
Union Traction Co. v. Chicago. 199 111. 484, 65 N. E. 451, 59 L. R. A. 631 ; City
of Baton Rouge y. Butler, 118 La. 73, 42 South. 650; Welch y. Swasey, 193
Mass. 364, 79 N. E. 745; Andreas y. Beaumont (Tex. Civ. App.) 113 S. W.
614; People y. Aheam, 193 N. Y. 441, 86 N. B. 474; Commonwealth y. Kings-
bury, 199 Mass. 542, 85 N. B. 848, 127 Am. St. Rep. 513 ; McSurely y. McGrew
(lowa) 118 N. W. 415 ; Spokane y. Camp, 50 Wash. 554, 97 Pac. 770, 126 Am.
St Rep. 918 ; State y. Mathis, 149 N. C. 546, 63 S. B. 99 ; Moore y. City of
Georgetown, 105 S. W. 905, 32 Ky. Law Rep. 315; Woodrough y. Douglas
County, 71 Neb. 354, 98 N. W. 1092; Agua Pura Co. of Las Vegas y. Mayor,
etc., of City of Las Vegas, 10 N. M. 6, 60 Pac. 206, 50 L. R. A. 224 ; Sluder y.
St Louis Transit Co., 189 Mo. 107, 88 S. W. 648, 5 L R. A. (N. S.) 186 ; Town
of Ocean Springs y. Green, 77 Miss. 472, 27 South. 743 ; Board of Metropoli-
tan Police y. Board of Auditors of Wayne County, 68 Mich. 576, 36 N. W. 743 ;
Lake Charles y. Roy, 115 La. 939, 40 South. 362. But see Horton y. City
OouncU and Olty Treasurer of Newport, 27 R. I. 283, 61 AtL 759 ; Validly
y. Board of Park Com*rs of Park Dist of City of Grand Forks, 16 N. D. 25,
111 N. W. 615 ; MitcheU y. State, 134 Ala. 392, 32 South. 687. See ^'Oonstitu-
tional Law," Deo, Dig. (Key. No,) § 6S; Cent. Dig. §| IOS-I14,
istLammert y. LidweU, 62 Mo. 188, 21 Am. Rep. 411; Clarke y. Rogers,
SI Ky. 43 ; Stone y. City of Charlestown, 114 Mass. 214 ; Attorney General
y. Township Board of Spiingwells, 143 Mich. 523, 107 N. W. 87; People y.
Town of Ontario, 148 ^al. 625,, 8i Pac. 205; Wheeler y. Herbert, 152 Cal. 224,
92 Pac 858 ; Eckersbn y. City of Des Moines, 137 Iowa,T52, 115 N. W. 177 ;
State y. Holland, 37 Mont 393, 96 Pac. 719 ; Stanton y. Board of Sup'rs of
IDssez County, 191 N. Y. 428» 84 N. B. 880 ; Graham y. Roberts, 200 Mass. 152,
376 LBQISLATIVB POWBB IN THB STATES. (Ch. 13
throughout the state, and leaving to a popular vote in each munici-
pality the question whether it shall become subject to such law, is not
an unconstitutional delegation of legislative power.^**
Local Option Laws.
"A local option" law is a law framed for the purpose of prohibiting,
or severely restricting, the sale of intoxicating liquors, and contain-
ing a provision that the several counties, townships, or other divi-
sions of the state, may hold elections to determine by popular vote
whether they desire the law to be in force in their limits, and with
a further provision that in each case where such election results in
favor of the adoption of the law, it shall take effect in the district so
voting, but that each district rejecting it shall continue to be governed,
in this respect, by the existing laws. In some few cases such laws
have been ruled unconstitutional, on the ground that they delegated
the power of the legislature. But the very great preponderance of
authority is to the effect that such a statute, if it is a complete enact-
ment in itself, requiring nothing further to gfive it validity, and de-
pending upon the popular vote for nothing but a determination of the
territorial limits of its operation, is a valid exercise of the legislative
power.**' The same rule has been applied to the exercise of local
option in relation to some other subjects, such as the organization of
irrigation districts,*** and school districts subject to certain special
conditions of taxation.**'
85 N. E. 1009 ; Orrick v. Ft Worth (Tex. Civ. App.) 114 S. W. 677. See **Cofh
stitutional Law," Dec, Dig. {Key No,) f§ 65, 66; Cent. Dig. |§ 115-122,
12* Guild V. City of Chicago, 82 III. 472; Armstrong v. Traylor, 87 Tex.
598, 30 S. W. 440; Hamilton v. Carroll, 82 Md. 326, 33 Atl. 648; Bradshaw
V. Lankford, 73 Md. 428, 21 Atl. 66, 11 L. R. A. 582, 25 Am. St. Rep. 602. See
"Constitutional Law," Dec, Dig, (Key No.) §{ 65, 66; Cent. Dig. || 115-122.
126 Wen V. Calhoun (C. C.) 25 Fed. 865; State v. Court of Conunon Pleas
of Morris County, 36 N. J. Law, 72, 13 Am. Rep. 422; State y. Pond, 93 Mo.
606, 6 S. W. 469 ; Lockers Appeal, 72 Pa. 491, 13 Am. Rep. 716 ; Common-
wealth V. Dean, 110 Mass. 357; Village of GloversviUe v. Howell, 70 N. Y.
287 ; Anderson v. Commonwealth, 13 Bush (Ky.) 485 ; Gordon v. State, 46 Ohio
St. 607, 23 N. E. 63, 6 L. R. A. 749 ; In re O'Brien, 29 Mont 530, 75 Pac. 196 ;
In re McGonnell's License, 209 Pa. 327, 58 Atl. 615; State v. Barber, 19 S.
D. 1, 101 N. W. 1078; State v. Kline. 50 Or. 426, 93 Pac. 237; People v. Mc-
Bride, 234 lU. 146, 84 N. E. 865, 123 Am. St Rep. 82. See "Constitutional
Law," Dec, Dig. (Key No,) f 65; Cent. Dig. f 116; "Intoxicating Liquors,"
Cent, Dig. § 16,
126 Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 17 Sup. Ct 56, 41 L. Bd.
369. See "Constitutional Law," Dec, Dig, (Key No,) § 65; Cent. Dig. f 116.
127 Coleman y. Board of Education of Emanuel County, 131 Ga. 643, 63
§§ 14&-144) DBliEGATION OF LEGISLATIVE POWERS. 377
Conditional Legislation.
There is no provision in the American systems for a referendum on
general subjects of legislative action, unless it may be in very rare
and exceptional instances. The legislature is elected and authorized to
make the laws. For that purpose the legislative power of the people
is confided to them. That power cannot regularly be resumed and
exercised by the people themselves. Neither can it be referred back
to the people by the legislature in any particular instance. Delega- O.'^i "^
tion of legislative power to the people at large, from whom it was ,;<'•- '
derived, is just as much against the spirit of the constitution as a ^ *^ '
delegation of it to one citizen. Nor can the legislature be allowed to
shirk the responsibility of deciding upon the laws which should be
made.*** For these reasons it is held that the law-making body has
no power, in enacting a general law, applicable to all the people of
the state, to make its taking effect conditional upon the casting of a
popular vote in its favor. For instance, the legislature, in enacting
a law granting the right of suffrage to women, has no constitutional
power to provide that the act shall take effect throughout the state
on its acceptance by a majority vote of the electors.*** But a general
law may be made to depend upon some contingency (other than rati-
fication by popular vote) as to when it shall take effect in a particular
locality,*** or made dependent upon a future contingency as to whether
it shall take effect at all,*** even though that contingency be some ac-
tion on the part of the legislature of another state ; as, in the case of
8. B. 41. Bee 'Vonstitutional Law,*' Dec. Dig. (Key No.) §f 65, 66; Cent.
Dig. II 115-1B2.
IS* Ex parte WaU, 48 Cal. 279, 17 Am. Rep. 425 ; Schwartz y. People, 46
Ck>lo. 239, 104 Pac. 92. See ^'Constitutional Law,'* Dec, Dig. {Key No.) i 66;
Cent. Dig. H 115-122.
is» Ophiion of Justices, 160 Mass. 586, 86 N. B. 488, 23 L. R. A. 113. But
flee People v. McBrlde, 234 III. 146, 84 N. E. 865, 123 Am. St. Rep. 82; Rouse
y. Thompson, 228 111. 522, 81 N. E. 1109. As to the yalldity of the primary
election laws recently enacted In several of the states, see State v. Felton, 77
Ohio St. 554, 84 N. B. 85; Morrow v. Wlpf (S. D.) 115 N. W. 1121; State v.
Blalsdell (N. D.) 118 N. W. 141. See ^'Constitutional Law," Dec Dig. (Keg
No.) H 65, 66; Cent. Dig. |{ 115-122,
180 People y. Hoffman, 116 111. 587, 5 N. E. 596, 8 N. E. 788, 56 Am. Rep.
793. See "Statutes,"' Dec. Dig. (Key No.) | 77; Cent. Dig. | 80; **Constitur
tional Law," Deo. Dig. (Key No.) | 70; Cent. Dig. | 1S7.
181 Schulherr y. Bordeaux, 64 Miss. 59, 8 South. 201 ; Ward y. State, 154
Ala. 227, 45 South. 655; Minneapolis, St P. & S. S. M. R. Co. y. RaUroad
Oommlsslon of Wisconsin (Wis.) 116 N. W. 905, 17 L. R. A. (N. S.) 821 ; Mer-
chants' Bxchange of St Louis y. Knott, 212 Mo. 616, 111 S. W. 565 ; State y.
378 LBOISLATIVB POWER IN THB STATBS. (Ch. 13
a "reciprocity" clause relating to the conditions on which foreign cor-
porations shall be admitted to do business in the state,***
EKAOTMEHT QF IJLW8.
/r.
145. State eoiuititntioiifl eommonly iaelude prorlsloiia regwIatJiig tke
eaaotment of laws 1>y the legislatiire, ae f oUowes
(a) Ho lair can 1>e passed ezeept 1>y MIL
-p^ (b) Bills for raising reTonae must originate in the lower house.
^ (o) Erery bill, before it beoomes a law, must be read a eertain
nuniber of times in eaeh house.
-e (d) Srery bill must be passed by a TOte of the neoessary majority
in both houses.
(e) In some oases the ftnal TOte on a bill shall be taken by yeas
and nays.
(f) After the bill is passed, it must be signed by the presiding
bfileers of the two houses.
146. These constitutional requirements are generally to be deemed
mandatory, and are not merely directory ; and the negleet or
disregard of them, will be fatal to the Talidity of any par^
tieular statute.
Introduction of Bills,
In parliamentary language, a "bill" is a written draft of a proposed
act of legislation, introduced by a member of the legislative body.
Any member has ordinarily the right to introduce any bill in the house
to which he belongs. The usual practice is to refer the bill to a com-
mittee of the house, for its consideration, with directions to report
thereon, after which the bill comes before the house for its considera-
tion; and in several of the states this course is made imperative by
constitutional provision.
As a general rule, bills of any kind may originate in either house
of a state legislature, and may be amended, accepted, or rejected by
the other. The principal exception to this rule is in the case of
measures for raising revenue, which, by the constitutions of most of
the states, are required to be first introduced in the lower or more
numerous branch of the legislature. But such a constitutional pro-
vision applies only to bills to levy taxes, in the strict sense of the
Storey, 61 Wash. 630, »9 Pac. 878. See '^Constitutional Law,** Deo. Dig. {Key
No.) I 66; Cent. Dig, §| 115-122.
iss Phoenix Ins. Ck>. of New York ▼. Welch, 29 Kan. 672. But see Western
& Southern Life Ins. Co. y. Com. (Ky.) 117 S. W. 376. Bee "Insuranoe^** Dea
Dig. (Key No.) | 19; Cent. Dig. § 15.
§g 145-146) ENACTMENT OF LAW& 379
word, and not to bills for other purposes which may incidentally raise
revenue."* The same restriction applies to congress; but it is held
that an act increasing the rate of postage on certain mail matter is
not unconstitutional because it originates in the senate. A bill estab-
lishing'' rates of postage is not a bill for raising revenue, although rev-
enue may result from it.^**
Reading of Bills.
The constitutions of many of the states require that a bill, before
it shall become a law, shall be read a certain number of times (usually
two or three) in each house. In respect to the manner of such read-
ing, the provision is considered merely directory ; but not so with re-
gard to the fact of its being read. If the constitution is not obeyed
in this latter particular, the statute is void.^'* And the legislature
cannot evade the mandatory provisions of the constitution as to the J,
enactment of laws by entitling the bill a ''joint resolution" and passing ^
it as such."* Where the requirement is that the bill shall be read
three times, it is the usual practice of legislative bodies to have it
read twice by title merely and once at full length ; and this is consid-
ered sufficient to make its enactment lawful, unless the constitutional
provision is so expressed as to make it imperative that each reading
should be of the entire contents of the bill.^*^ The reading of a bill
at length in committee of the whole, together with the reporting and
recording upon the journal of the fact of such reading, may be treated
as one reading of the bill.*** And the fact that certain amendments
suggested by a conference committee, and agreed to by both houses,
IS* Day Land & Cattle Oo. y. State, 68 Tex. 526, 4 S. W. 865; Anderson v.
Rltterbusch (Okl.) 98 Pac. 1002. See '^Statutes,'' Deo. Dig. (Key No.) | 6;
Cent. Dig. § 5.
it4 U. S. y. James, 13 Blatchf. 207, Fed. Gas. No. 16,464. Bee "Statutea,'*
Dec. Dig. (Key No.) f 6; Cent. Dig. | 5.
iss Board of Sup'rs of Ramsey County y. Heenan, 2 Minn. 830 (Oil. 281).
See **Statute8,*' Dec. Dig. {Key No.) | 15; Cent. Dig. § 12.
it« Burritt y. Commissioners of State Contracts, 120 lU. 322, 11 N. E. 180; .;'
Mullan y. State, 114 Cal. 578, 46 Pac. 670, 34 L. R. A. 262. See Sinking
Fund Com'rs y. George, 104 Ky. 260, 47 S. W. 779, 84 Am. St Rep. 454 ; State
y. Cunningham (Mont) 103 Pac 497. See "Statutet,** Deo, Dig. (Key No.) §
40; Cent. Dig. f 44-
i»T People y. McElroy, 72 Mich. 446, 40 N. W. 750. 2 L; R. A. 609; Weill
y. Kenfield, 54 Cal. 111. See ^'Statutes,** Dec. Dig. (Key No.) | 15; Cent.
Dig. f 12.
iss In re Reading of Bills, 9 Colo. 641, 21 Pac 477. See "Statutes,*' Deo.
Dig. (Key No.) 1 15; Cent. Dig. 1 12.
380 LBOISLATIYE POWER IN THE STATES. (Ch. 13
ivere not read three times, and on three several days, in each house,
will not render the act invalid.*'* In a considerable number of the
states, the constitution provides that the three readings of a bill may
be dispensed with in case of "urgency" by a vote of two-thirds or
three-fourths of the members of the house where the bill is pending.
When such an occasion arises, it is for the house alone to determine
whether there is such "urgency" as to justify the passage of the bill
without reading or with less than the usual number of readings. This
is a question which will not be inquired into by the courts.**** Where
the constitution permits the reading of a bill by title only under sus-
pension of the rules, and it appears that a bill was read by title and
passed, and the journals are silent as to any suspension of the rules, it
will be presumed, in order to sustain the act, that the rules were sus-
pended.**^
Passage by Majority Vote,
In order that the bill should become a law, it is next requisite that
it should be passed by a vote of the necessary majority in the two
houses. In some special cases a majority of two-thirds or even three-
fourths is prescribed. But ordinarily a simple majority is enough.
If the constitution provides for a vote by a majority "of the mem-
bers" or "of the whole representation," this is imperative. But if the
requirement is simply that there shall be a majority, it is understood
that a majority of those present and voting (provided they constitute
a quorum) will be sufficient. But whatever the constitutional require-
ment may be, it is absolutely necessary that the bill should receive the
concurrent votes of a sufficient number of the members of each house
to enact it into a law. If this is not the case, it never becomes a stat-
ute of the state, and the courts are not bound to regard or obey it.***
Moreover, the same act must be passed by both houses in the same
is» State y. Brown, 83 S. G. 151, 11 S. E. 641. And see Tarr y. Western
Loan & Say. Co., 15 Idaho, 741, 99 Pac. 1049, 21 L. R. A. (N. S.) 707. See
Statutes," Dec. Dig. {Key No.) f 15; Cent, Dig. § 12.
140 Weyand y. Stover, 35 Kan. 545, 11 Pac. 355; Hull y. MUler, 4 Neb. 503.
See ''Statutes,*' Dec. Dig. {Key No.) § 15; Cent. Dig. § 13.
141 Chicot County y. Davies, 40 Ark. 200. See ''Statutes,'* Dec Dig. (Key
No.) I 28S; Cent, Dig, § 382.
14 2 Amoskeag Nat Bank y. Ottawa, 105 U. S. 667, 26 L. Ed. 1204; Osburn
V. Staley, 5 W. Va. 85, 13 Am. Rep. 640; People v. Starne, 35 111. 121. 85 Am.
Dec. 348. See "Statutes," Deo. Dig. {Key No.) H ifi» ^0; Cent. Dig. U 21"
24, 27.
At
§S 14&-146) ENACTMENT OF LAWS. 381
identical form, and in that form it must be submitted to the govemori
in order to become a law.***
Yeas and Nays,
Some of the state constitutions provide that on the final passage
of every bill the vote shall be taken by the yeas and nays. The "final
passage" of a bill is the vote on its passage, in either house of the
legislature, after it has received three readings on three different days
in that house.*** This constitutional requirement means that the roll
of the house shall be called, and each member present and answering
to his name shall vote "yea" or "nay," on the question of the passage
of the bill, and the names of the members so voting on each side of
the question shall be entered at large upon the journal. This provi-
sion is intended both to fix upon each member of the legislature the
responsibility for his action in regard to the passage of every legis-
lative measure, and also to secure an authoritative record of the
passage of the bill by the requisite majority. Such a provision is
mandatory. The legislature has no power to dispense with it. If
an act does not appear from the journals to have been passed in
this manner, where the constitution requires it, it is no law.**'
But if there is no provision in the constitution as to this manner
of taking the vote (or in all cases where the constitutional requirement
does not apply), it is in the discretion of either house to decide, by
rule, when the yeas and nays shall be taken, or in what cases a mem-
ber, or a number of members, shall have the right to call for the yeas
and nays.*** A constitutional provision that the names of members
voting on the two sides of the question shall be entered on the jour-
nals is no less imperative than that which requires the taking of the
yeas and nays. In a case where the journal recited the names of those
members who were present, and stated that they voted unanimously
in favor of the bill, but did not recite the names of those voting, it
was held that there was no compliance with the requirement.**^
!*• State v. Van Duyn, 24 Neb. 586, 39 N. W. 612. See State r. Pitts (Ala.)
49 South. 441. See **Btates,'* Dec. Dig. (Key No.) | 27; Cent. Dig. | 28; **8tat'
i*te»/' Dec, Dig, (Key No.) |i W. 40, 41; Cent. Dig. H 26, 27, 49-45.
144 state v. Buckle, 54 Ala. 599. See **Statutes," Dec Dig. (Key No.) U
15, 19; Cent. Dig. |§ 12, 20.
14 B Spangler y. Jacoby, 14 111. 297, 58 Am. Dec. 571 ; State v. Bowman (Ark.)
118 S. W. 711. See "Statutes," Dec. Dig. (Key No.) 1 18; Cent. Dig. | 27.
140 Lincoln T. Haugan, 45 Minn. 451, 48 N. W. 196. See "Statutes,** Dec.
Dig. (Key No.) U 18, 19; Cent. Dig. S| 20, 27.
147 steckert ▼. Olty of East Saginaw, 22 Mich. 1(M; State y. Martin (Ala.)
382 LEQISLATIVE POWER IN THE STATES. (Ch. 13
Signature by Presiding Officers,
When a bill has been duly passed by the requisite majority, it is
engrossed, and thereupon, by the constitutions of many of the states,
it must be signed by the presiding officers of the two houses. This is
the proper and constitutional mode of authenticating the act, and it
cannot be dispensed with.*** In regard to acts of congress, it is said:
"Although the constitution does not expressly require bills that have
passed congress to be attested by the signatures of the presiding offi-
cers of the two houses, the orderly conduct of legislative proceedings,
and the rules under which the two bodies have acted since the organi-
zation of the government, require that mode of authentication." **•
TITLE AND BUBJECT-MATTEB OF STATUTES.
147. la most of tl&e states, tl&e oonstit«tian provides tluit no aet of
( \A ii tl&e legislati&re sliall embrmee aior^ than one snbjeet, and
tliat sneb snbjeet sball be expressed in tbe title of tbe aet.
148. Tbis provision is nuuidatory, and if it is disresarded, tbe wbole
statnte, or any separable part of it not embraeed witbin
tbe title, will be rejected as nnoonstitiitional.
140. Bnt tbis reqnirement is oonstmed liberally, and tbe oonrts are
nnwillins to defeat or embarrass legislation by pntting too
strained or toobnieal a oonstmction npon tbis olanse of
tbe eonstitntion.
In regard to the degree of particularity required in the title of a
statute, it is the accepted doctrine that it is sufficient if the title de-
scribes, with adequate clearness, the general purpose and scope of the
act. "It is only necessary that the title express the subject of the act,
and not the provisions of the act or the details by which the object
of the act is to be accomplished." ^*** "It is sufficient if the title is
48 South. 846. See **Municipal Corporations,*' Dec. Dig, {Key No,) | 100;
Cent, Dig, f 215; **Statute8," Dec. Dig. (Key No,) § 18; Cent, Dig, S? i7, 27.
148 state V. Robinson, 81 N. O. 409; Pacific R. R. v. Governor of Missouri,
23 Mo. 364, 66 Am. Dec. 673 ; State v. Kiesewetter, 45 Ohio St 254, 263, 12
N. B. 807. But compare Commissioners of Leavenworth County v. Higgin-
botham, 17 Kan. 62. See "Statutes,'* Dec. Dig, (Key No,) S 57; Cent, Dig. f S9.
149 Marshall Field & Co. v. Clark, 143 U. S. 649, 12 Sup. Ct 495, 36 L. Ed.
294. See ^'Statutes,** Dec. Dig, (Key No,) § 285; Cent, Dig, f 584-
160 People V. Lawrence, 41 N. Y. 139. And see Nutwell v. Commissioners
Anne Arundel County, 110 Md. 667, 73 Atl. 710. See '^Statutes," Dec. Dig.
(Key No,) H 105-125; Cent. Dig, §§ 117-194.
§§ 147-149) TITLE AND. 8UBJSCT-MATTBB OF STATUTES. 383
C(xnprehensive enough to reasonably include, as falling within the
general subject, and as subordinate branches thereof, the several ob-
jects which the statute assumes to affect" *•* The title need not be an
index of the contents of the act. "But; on the other hand, it should
not mislead or tend to avert inquiry into the contents." *•* For ex-
ample, a law incorporating a city, or one granting franchises to a busi-
ness corporation, or one relating to the general subject of elections, or
one regulating the manufacture and sale of intoxicating liquors, or
one providing a general system of taxation for the state, will contain
a great ntunber of detailed and specific provisions. But if they all re-
late to the general subject-matter of the act, and are all germane to
its general purpose, it is not necessary that each should be mentioned
in the title. In all such cases, a general and comprehensive title will
meet the requirement of the constitution.^" Although all the subjects
touched upon by the act are not enumerated in the title, it is not in-
valid if they all have congruity or a proper connection with the gen-
eral subject of the act as described in the title.^'* And "the connection
or relationship of several matters, such as will render them germane
to one subject and to each other, can be of various kinds, as, for ex-
ample, of means to ends, of different subdivisions of the same sub-
ject, or that all are designed for the same purpose, or that both are
designated by the same term. Neither is it necessary that the connec-
tion or relationship should be logical; it is enough that the matters
are connected with and related to a single subject in popular signi-
iBi Donnersberger r. Prendergast, 128 111. 229, 21 N. B. 1. See "^Statutes,**
Dec, Dig, {Key No.) ff 105-125; Cent. Dig. || 117-194-
IBS Allegheny County Home's Case, T7 Pa. 77; Montgomery Mut Building
ft Loan A88*n y. Robinson, 69 Ala. 413. Bee *'8ta$ute8,*' Dec Dig. (Key No,)
fi 105-125; Cent, Dig. §f 117-194.
i6t An act '*more effectnally to prevent the offenses of grand larceny, arson,
and burglary" does not violate a constitutional provision that each law shall
embrace but one subject; for the subject of this act is "the more effectual
prevention,** etc., and not the three crimes named. Miles v. State, 40 Ala. 30.
An act ''concerning bridges in Barber county'* may properly include a provi-
sion authorizing the commissioners of that county to purchase bridges be-
longing to private corporations. Board of Com'rs of Barber County v. Smith,
48 Kan. 331, 29 Pac. 565. Bee ^^Btatutea," Dec Dig. (Key No.) || 105-125;
Cent. Dig. H 117-194.
iB«De Witt V. City of San Francisco, 2 Cal. 289; Kaufman v. Alexander
(Ind.) 88 N. E. 502; Ex parte Hallawell (Cal.) 99 Pac. 49a Bee ^'Btatutea,'*
Dec. Dig. {Key No.) § 109; Cent, Dig. f 1S6.
/;
384 LBGISLATIVB POWER IN THB •STATES. (Ch. 13
fication. The generality of the title of an act is no objection, provided
only it is suj£cient to give notice of the general subject of the pro-
posed legislation and of the interests likely to be affected. The title
was never intended to be an index of the law/' *•• But though the
title and the law may both refer to the same general subject-matter,
yet if the title uses a term which describes a totally different branch
of the subject from that dealt with in the body of the act, or an entirely
different method of dealing with it, the act is void for this reason.
For example, to entitle an act ''to regulate the traffic in intoxicating
liquors," and then, in the body of the act, entirely to prohibit such
traj£c, is not complying with the constitutional requirement.*'* But
the title may be broader than the act without avoiding it; and it is
no valid objection if the title makes reference to matters which would
be inconsistent with its general scope, provided no such inconsistent
matters are found in the statute itself.*'^
The addition of the word "etc." or the sign "&c." to the title of an
act does not enlarge its scope, or bring within the title matters not
more specifically described therein; under the constitutional provi-
sion in question, these letters have no meaning.* •• And the clause,
"and for other purposes," when used in the title of an act, following
a specific statement of the purposes of the act, is without any legal
meaning, and does not enlarge the title so as to make it embrace any-
thing not specifically expressed.*'*
But the courts, in dealing with a question of this kind, will not be-
solicitous to overthrow the statute. On the contrary, they will give
the legislature the benefit of every doubt, and will endeaver to so read
the title and the act as to make the one adequate to express the subject
of the other. "It has always been held that these statutory titles, in
regard to their construction, are to be liberally treated, so as to vali-
1B6 Johnson ▼. Harrison, 47 Minn. 675, 50 N. W. 923, 28 Am. St Rep. 382.
See ^'Statutes,*' Dec. Dig. (Key No.) |i 105-126; Cent. Dig. §f 111-19J^.
1S0 In re Hauck, 70 Mich. 396, 38 N. W. 209. See **8tatute8,** Dec. Dig. {Key
No.) f 114; Cent. Dig. | U8.
1S7 Powers v. McKenzie, 90 Tenn. 167, 16 S. W. 669. See '*8taiute8,** Dec.
Dig. (Key No.) § 126; Cent. Dig. S IH.
168 state y. Hackett, 5 La. Ann. 91. See *" Statutes,*' Dec Dig. {Key No.) \
109; Cent. Dig. S 137.
IS •Board of Commissioners of Pitldn Ck)nnty v. Aspen Mining & Smelting
Co., 3 Colo. App. 223, 32 Paa 717. See ^'Statutes;' Dec Dig. {fiey No.) 1 109;
Cent. Dig. I 137.
iS§ 147-149) htle and subject-mattbb of statutes. 385
date the law to which they appertain, if such course be reasonably
practicable. In such a connection, hypercriticism is utterly out of
place, the only requirement being that the title of the statute shall ex-
press its object in a general way, so as to be intelligible to the ordinary
reader." »••
A statute perfect in itself may repeal another law or part of a law
by implication, although such repeal is not expressed in the title of the
repealing statute.*** For example, where an act is entitled "An act
to restore uniformity in taxation," the repeal of certain special laws
which interfere with uniformity of taxation is germane to the sub-
ject and may properly be embraced in such act.***
Even where two or more subjects are embraced in the act or ex-
pressed in the title, it does not always follow that the statute will be
void in toto. Where the act is broader than its title, the portion in
excess of the title will be declared void, if this can be done without;
destroying the rest of the enactment; as, where the title of the act
relates to "all citizens" and the body of the act to "all persons." In
such a case, in order to entitle a party to the benefit of the act, it must
be alleged and proved that he is a citizen.*** If the act embraces dis-
tinct subjects which are not expressed in the title, and also subjects
which are expressed in the title, it is void as to the former, but not
necessarily void as to the latter. It is then subject to the rule that an
act unconstitutional in part wili not be declared void in toto if the valid
portions "are separable from the void provisions and capable of en-
forcement independently of such void provisions, unless it shall ap-
pear that all of the provisions of the act are so dependent on each
other, operating together for the same purpose, or are otherwise so
connected together in meaning, that it cannot be presumed that the
legislature wotdd have passed the one without the other provision." ***
160 In re Haynes, 54 N. J. Law, 6, 22 Atl. 923 ; Johnson v. Harrison, 47
Minn. 575, 50 N. W. 923, 28 Am. St. Rep. 382; Allegheny County Home's Case,
77 Pa. 77. See "Btatutear Dec. Dig. (Key No.) | 126; Cent. Dig. f 19S.
!•! Union Trust Co. v. Trumbull, 137 111. 146, 27 N. E. 24 ; Lutz ▼. Matthews.
37 Pa. Super. Ot 354. See **8tatuteM," Deo. Dig. (Key No.) | 109; Cent, Dig.
1153.
i«s Burke y. Monroe County, 77 111. 610. See "Statutes," Deo. Dig. {Key
No.) i 121; cent. Dig. I 17S.
Its Messenger r. State, 25 Neb. 674, 41 N. W. 63& See **Statute8," Dec Dig.
i^ey No.) S 64; Cent. Dig. i 195.
'^•« Donnersberger v. Preudergast, 128 111. 229, 21 N. E. 1 ; People ▼. Briggs,
60 N. Y. 553. See ''Statutesr Deo. Dig. (JKey No.) § 64; Cent. Dig. | 195.
Bl.Oonbt.L.(3d. Ed.)— 25
386 LBGI8LATIVE P0W8B IK THIS 8TATJS8. (Ch. 13
And where the title embraces two objects, and the act embraces two
subjects, so that it is impossible to tell which object was intended by
the legislature, the courts are not at liberty to select one object and
sustain the law as to that alone; the whole act must fall.^**
i«s Skinner y. Wilhelm, eS Mich. 668, 30 N. W. 8U ; City of San Antonio T.
Gould, 34 Tex. 49 ; AUman v. Mobile (Ala.) 00 South. 238. See **8tatute$,'^
Dec. Dig. (Key Jio.) | 108; Cent. Dig. | 155.
§ 160) THB POLICE POWSB. 887
CHAPTER XIV.
THE POLICE POWER.
150. Definition and General Considerations.
151. Police Power Inalienable.
152. Scope of the Power.
153. Location of the Police Power.
154. Police Power Vested In Congress^
155. Police Power of the States.
156. Limitations of the Police Power.
DEFIHTTIOH AMB OENERAI. GONBIDERATXONS.
ISO. Tker« is im erery soTerelsBty aa iaheremt mad plenasy powev
to make all rack laws as may be aeoessary aad proper to pro-
serve tlie pablle sooarltyt order* bealtk* morality, aad Jmtleo.
This power Is eaUod tlie ^'polioo power.** It Is a fvadameatal
power aad esseatial to soTorameat, aad is based apoa tbe law
of orermliac aeoosslty*
Definition.
In Its most general sense, "police** is the function of that branch of
the administrative machinery of government which is charged with
the preservation of public order and tranquillity, the promotion of the
public safety, health, and morals, and the prevention, detection, and
punishment of crimes. And the police power is the power vested in a
state to establish laws and ordinances for the regulation and enforce-
ment of its police, as just defined. It has been remarked by the su-
preme court of the United States that while many attempts have been
made to define the police power, the endeavor has never met with
entire success. "It is always easier to determine whether a particular
case comes within the general scope of the power than to give an
abstract definition of the power itself which will be in all respects ac-
curate.*' *
1 stone T. Mississippi, 101 U. 8. 814, 818, 25 L. Ed. 1079. "The police
XK>wer of a state is co-extensiye with self-protection, and is not inaptly termed
*the law of OTerroling necessity.* It is that inher^it and plenary power
in the state which enables it to prohibit all things hurtful to the comfort and
welfare of society.'* Town of Lake View v. Bose Hm Cemetery Co, 70 m.
388 THE POLICE POWBB. (Ch. 14
Nature and Origin of Power.
It cannot be doubted that the origin of this power must be sought
in the very purpose and framework of organized society. It is funda-
mental and essential to government. It is a necessary and inherent
attribute of sovereignty. It antedates all laws, and needs neither
g^rant nor recognition by the constitutions.* For these reasons it ap-
pears that the nature and authority of the police power are best de-
scribed by the maxim "salus populi suprema lex," while the principle,
"sic utere tuo ut aliemmi non laedas," furnishes, in most cases, a con-
venient rule for its application.*
Police Power Distinguished from Eminent Domain.
There is a broad theoretical distinction between the taking of pri-
vate property for a public use, under the power of eminent domain,
and the incidental injury or inconvenience, or damage or deteriora-
tion, which may result to property or business on account of the ex-
ertion of the police power of the state, when its purpose is the promo-
tion of the public welfare. In the former case, compensation must be
made to the owner ; in the latter case, no such obligation arises. All
rights of property are subject to the paramount authority of the state
to prohibit any use which may be deemed detrimental to Jhe public
safety, health, or morals, and an individual inconvenienced by such
regulations is supposed to be rewardled by the common benefits se-
cured.* But practically the boundaries of these two governmental
191, 22 Am. Rep. 71. For other definitions see Thorpe t. Rutland & B. R
Co., 27 Vt 140, 62 Am. Dec. 625 ; People v. Steele, 231 III. 340. 83 N. E. 236.
14 L. R. A. (N. S.) 361. 121 Am. St. Rep. 321; Dreyfus v. Boone (Ark.) 114
S. W. 7ia Bee "Constitutional Law,*' Dec Dig. (Key No.) f 81; Cent, Dig.
§ U8.
« South Carolina v. United States, 39 Ot CI. 257. See "Constitutional
Law," Dec. Dig. (Key No.) { 81; Cent. Dig. S U8.
» Wynehamer v. People, 13 N. Y. 378 ; Cincinnati. I. & W. R. Co. v. City of
Connersville. 170 Ind. 316. 83 N. E. 503. See "Constitutional Law,'' Dec. Dig.
{Key No.) | 81; Cent. Dig. | U8.
4 Commonwealth y. Alger. 7 Cush. (Mass.) 53, 86. See. also. Moore t. City
of Indianapolis. 120 Ind. 483, 22 N. E. 424; Northwestern Fertilizing Co. v.
Hyde Park, 97 U. S. 659. 24 L, Ed. 1036; Boston Beer Co. y. Massachusetts^.
97 U. S. 25, 24 L. Ed. 989 ; Mugler y. Kansas, 123 U. S. 623, 8 Sup. Ct. 273.
31 li. Ed. 205 ; Bancroft y. City of Cambridge, 126 Mass. 438. Compare Wyne-
hamer V. People, 13 N. Y. 378, with the foregoing cases, and particularly with
Mugler y. Kansas. Bee "Eminent Domain," Dec. Dig. (Key No.) f 2; Cent.
Dig. f S 4-^
§ 162) 800PB OF THE POWWL 389
powers are ill defined ; and of late years many unwarranted invasions
of private property, without compensation, have been justified as ex-
ertion^ of the police power.*
POUGE POWER INAIiXENABIiE.
151. Tke polloe power eani&ot be .evrrenclered hj the lesielatvre ev
irreroemlily alienated 1a favor of ladiTldnale or eorporattoae*
Neither the legislature of a state nor a municipal corporation can
surrender, bargain away, or otherwise divest itself of the police power,
by non-user or by any grant, contract, or concession.*
BGOPE OF THE PO.WEB.
152* Tke '^llee power,** as tke term is vsed im ooastitiational law,
does mot eaibraoo tke seneral fleld of legislation, knt is
strieted to auttters wkiek are properly of poliee resnlatioa
There is a certain broad and general sense in which the scope of the
police power may be made to include all legislation and to embrace
almost every function of civil government. Thus, and especially in
the more modem cases, it is frequently said that the police power ex-
tends to the enactment of laws and regulations conducive to the gen-
eral or public "welfare" or to the "general prosperity," ^ or the "com-
B See remarks of Mr. Justice Brewer In his dissenting opinion In Chicago,
B. ft Q. R. Co. y. IlUnolB, 200 U. S. 509, 26 Sup. Ct 352, 50 L. Ed. 506. Bee
**BnUneni Domain,*' Deo. Dig. (Key No.) f t; Cent. Dig. ff 4-8.
• Boston Beer Oo. y. Mnssachusetts, 07 U. S. 25, 24 L. Ed. 060 ; Stone t
Mississippi, 101 U. S. 814, 25 L. Ed. 1070 ; Sbreveport Traction Co. v. City of
Shreyeport, 122 La. 1, 47 South. 40; State y. St Paul, M. ft M. R. Co., 08
Minn. 880, 108 N. W. 261 ; State y. Murphy, 130 Mo. 10, 81 S. W. 504, 81 L.
R. A. 708; Chicago, St. P., M. ft O. R. Co. y. Douglas County, 134 Wis. 107,
114 N. W. 511, 14 L. R. A. (N. S.) 1074 ; Petersburg y. Petersburg Aqueduct
Co., 102 Ya. 654, 47 S. E. 848. Bee "Constitutional Law,'' Deo. Dig. (Key No.)
f 81; Cent. Dig. f i|8.
T Otis y. Parker, 187 U. S. 606, 23 Sup. Ct. 168, 47 L. Ed. 823 ; Chicago, B.
ft Q. R. Oo. y. lUinois, 200 U. S. 561, 26 Sup. Ct 341, 50 L. Ed. 506 ; Bacon
y. Walker, 204 U. S. 811, 27 Sup. Ct 280, 51 L. Ed. 400 ; Walker y. Jameson,
140 Ind. 501, 37 N. B. 402, 28 L. R. A. 670, 40 Am. St Rep. 222 ; Morrison
y. Morey, 146 Mo. 543, 48 S. W. 620; Ex parte Boyce, 27 Nev. 200, 75 Pac.
1, 65 L. R. A. 47; State y. Chittenden, 127 Wis. 468, 107 N. W. 500; Stote
y. Redm<m, 184 Wis. 80, 114 N. W. 187, 14 L. R. A. (N. S.) 220, 126 Am. St
390 THE POLICB POWER. (Ch. 14
fort and convenience" of the public,* or "the common good, as in-
volved in the well-being, happiness, and prosperity of the people." •
But these broad expressions would be more aptly used in describing
the purposes for which representative government is established, or
the functions and duties of legislative bodies in general. The police
power is an attribute of government fundamentally necessary to the
public, but so easily perverted as to be extremely dangerous to the
rights and the liberty of the citizen. Even when properly defined and
limited, it is so far-reaching in its importance and so paramount in
its sway, even as against guarantied private rights, that its enlarge-
ment, by continual loose applications of the term to cases where it is
neither needed nor appropriate, is a serious menace to personal free-
dom. In constitutional law its scope is properly limited to the making
of laws which are necessary for the preservation of the state itself,
and to secure the uninterrupted discharge of its legitimate functions,
for the prevention and punishment of crime, for the preservation of
the public peace and order, for the preservation and promotion of the
public safety, the public morals, and the public health, and for the
protection of all the citizens of the state in the enjoyment of their
just rights against fraud and oppression.*^
Rep. 1008. See '*Con8tituiional Law,*' Dec, Dig. {Key No.) | 81; Cent. Dig.
I H8.
• Chicago, B. & Q. R. Co, v. Illinois, 200 U. S. 501, 26 Sup. Ct. 341. 50 L.
Ed. 596; Bacon v. Walker, 204 U. S. 311, 27 Sup. Ct 289, 51 L. EcL 499;
Lake Shore ft M. S. R. Co. y. Ohio, 173 U. S. 2S5, 19 Sup. Ct. 465, 43 L. Ed.
702; Williams v. State. 86 Ark. 464, 108 S. W. 838, 122 Am. St. Rep. 47;
Morrison v. Morey, 146 Mo. 543. 48 S. W. 629. See "Constitutional Law,**
Dec. Dig. (Key No.) f 81; Cent. Dig. S U8.
• Halter v. Nebraska, 205 U. S. 34, 27 Sup. Ct 419, 51 L. Ed. 696. See
"Constitutional Law,** Dec. Dig. (Key No.) fS 81, 206, 212, 258; Cent, Dig.
§ H8.
10 See New Orleans Gaslight Co. y. Louisiana Light & Heat Produclog &
Mfg. Co., 115 U. S. 650, 6 Sup. Ct. 252, 29 L. Ed. 516. And see Lawton v.
Steele, 152 U. S. 133, 14 Sup. Ct 499, 38 L. Ed. 385 ; People y. Jackson & M.
Plank-Road Co., 9 Mich. 307; Logan v. Postal Tel. & Cable Co. (C. C.) 157
Fed. 570. See "Constitutional Law,** Dec. Dig. (Key No.) f 81; Cent. Dig.
I H8.
S 164) POLICE POWER VESTED IN COMORBSS. 391
rOGATION OF THE POUGE POWEB.
153. Uador tlie Ameriofta mjmtem of soTerainemty tlie power utd av-
tliority to make polioo resvlatioiui Is Tested—
(a) In tlie lesislatures of iho soTeral states, to a plemary decree, sub-
Jeot only to ike paramount antkority of positiTe eonstitiitional
prokiMtions.
(b) In eonsr«o*f to a limited extent and for speoial purposes.
(e) In tke autkoritles of ainnioipal oorporatioas, in a sukordinato
and delesAtod manner.
It must be observed that there is not a distinct police power inher-
ent in municipal corporations, other than that of the state to which
they owe their existence. In incorporating a municipality, the state
delegates to it the power to make police regulations so far as may
concern its own citizens, its own affairs, and its own territorial juris-
diction. This is in accordance with the principle of local self-govern-
ment. Ordinances made in pursuance of this power must be tested
as other municipal ordinances are. They must not contravene any
constitutional provision, nor exceed the charter powers of the munici-
pality, nor be unreasonable.** The state may also make police regu-
lations applicable to all its municipal corporations of a certain grade
or class, or for particular cities, unless restrained by the constitution.
And of course the police power delegated to a municipal corporation
is not exclusive of that retained by the state. That is, municipal po-
lice regulations must yield to the general laws of the state, enacted
under the same power, whenever there is a conflict between them.
POUOE POWEB VESTED IN CONGBE88,
154. Witkin tke seope of its snpr^gie antkority, and in tke ezereise
of its expressly scanted powers, oonsv^ss luw tke rigkt to enaet
nioasares relating to tke puklio poliee of tke nation.
The statement is frequently made that congress is not invested with
the police power. It is true that congress has no general power to
11 The making of regulations under the police power is solely a legislatiye
prerogative, and is not within the authority of a city police force exercising
a portion of the executive power of the state. Gow v. Bingham, 57 Misc.
Rep. ee, 107 N. Y. Supp. 1011. Bee 'Vonstitietional Law,** Dec. Dig. (Key No.)
I 77; Cent. Dig. I HI; **MMnicipal Corporations,*' Dec. Dig. (Key No.) I 6S9;
Cent. Dig. 1 1508.
892 THB POLICE POWBB. (Ch. 14
make police regulations for the people of the United States, nor has
it authority to interfere, in matters not committed to its exclusive ju-
risdiction, with the internal affairs of the states, under the pretense
of police regulations.** The protection of the public safety, health,
and morals is in general left to the care of the individual states. Foe
example, when congress passed an act prohibiting the sale of certain
kinds of oil, or of oil unable to undergo a fire test, it was adjudged
that this act was plainly a police regulation, relating exclusively to
the internal trade of the states, and therefore beyond the rightful
power of congress, and it could be operative only within the District
of Columbia.** But within its appointed sphere, congress possesses
paramount authority. In the highest sense it is vested with the power
of police, since it possesses the power to legislate for the preservation
of national existence, the protection of national integrity, and the su-
premacy of national law. The police power being primarily a right
of self-defense, as applied to organized civil society, it must belong
of right to every independent goveriunent, including that of the
United States. Thus it is within the necessary power of the federal
government to protect its own existence and the unhindered play of
its legitimate activities. And to this end, it may provide for the pun-
ishment of treason, the suppression of insurrection or rebellion, and
for the putting down of all individual or concerted attempts to ob-
struct or interfere with the discharge of the proper business of the
government or those operations of commerce over which it has ex-
clusive jurisdiction. So also in the important case of Re Neagle,**
the doctrine was laid down that there is "a peace of the United
States," which it is the right and duty of federal officers to defend
and preserve. And it belongs to the United States, as a sovereign
1* Western Union Tel. Co. v. Pendleton, 95 Ind. 12, 48 Am. Rep. 692 ; Solon
v. State, 54 Tex. Cr. R. 201, 114 S. W. 349. See '^Constitutional Law,*' Deo.
Dig, (Key No,) { 81; Cent, Dig. f U8; "Commerce,*' Dec, Dig, (Key No.) | 59;
Cent, Dig, f 87.
18 u. S. y, Dewltt, 9 Wall. 41, 19 L. Ed. 593. Bee ''Explosives,*^ Dec Dig,
(Key No.) f 2; Cent, Dig. S i.
i« 135 U. S. 1, 10 Sup. Ot. 658, 34 L. Ed. 55. So, also, In Re Slebold, 100
U. S. 371, 25 L. Ed. 717, Mr. Justice Bradley said: "We hold it to be an in-
controvertible principle that the government of the United States may, by
means of physical force, exercised through its official agents, execute on every
foot of American soil the powers and functions that belong to it. This neces-
sarily involves the power to command obedience to its laws, and hence the
power to keep the peace to that extent" See "United States^** Deo. Dig. {Key
No.) f 26; Cent. Dig. 1 17.
§164) POLIOE POWER VESTBD IN CONOBE88. 893
and independent nation, to determine what classes or races of for-
eigners shall be admitted to settle within its limits, and who shall be
forbidden, and also to expel or deport those unnaturalized aliens whose
presence may be deemed detrimental to the general welfare. It is on
this principle that the Chinese exclusion acts are sustained.^'
Again the constitution confers upon congress power to levy taxes to
provide for the common defense and general welfare of the United
States; to establish a uniform rule of naturalization ; to provide a
punishment for counterfeiting the securities or coin of the United
States; to define and punish piracies and felonies committed on the
high seas and offenses against the law of nations; to provide for
calling out the militia ; to raise and support armies and navies ; and
to declare the punishment of treason. Laws have been passed in ex-
ecution of every one of these powers. And every one of such laws is
strictly and properly speaking an exercise of the police power. Fur-
thermore, congress, under the constitution, possesses exclusive juris-
diction over certain subjects. And in its legislation upon these sub-
jects, an act is not to be declared invalid merely because it has a pur-
pose and design which ranks it as a police regulation. For instance,
congress has no authority to legislate directly for the suppression of
lotteries. But having exclusive control over the postal system, it has
the power to prohibit the use of the mails for the transmission of lot-
tery advertisements.** To the power to regulate commerce belong
the acts of congress prohibiting the importation of adulterated articles
of food or drink,*^ and the laws regulating immigration, and prohib-
iting the entry of insane persons, paupers, persons suffering from con-
tagious diseases, convicts, polygamists, assisted immigrants, and alien
laborers brought in under contract for their labor.** Here also should
be classed the statute forbidding the importation of opium by the
IB See Nlshimiira Ekin y. U. S., 142 U. S. 651, 659, 12 Sup. Ct. 336, 85 L.
Ed. 1146; Obae Chan Ping y. U. S., 130 U. S. 581, 9 Snp. Ct 623, 32 L. Ed.
1068 ; Fong Yue Ting y. U. S., 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 905 ;
United States y. WUliams, 194 U. S. 279, 24 Sup. Ct. 719, 48 L. Ed. 979;
United States y. Lee Huen (D. C.) 118 Fed. 442. See '^Aliens," Dec, Dig. {Key
No,) n IS-tl; Cent. Dig. %% 70-74.
i< In re Rapier, 143 U. S. 110, 12 Sup. Ct 874, 36 L. Ed. 93. See *'Pa»t
Office:* Dec. Dig. (Key No.) U Hf 94; Cent. Dig. ft 21, 64.
IT Act Aug. 80, 1890 (U. S. Comp. St 1901, p. 8185).
!• See U. S. y. Craig (C. C.) 28 Fed. 795 ; Church of Holy Trinity y. U. S.,
148 U. S. 457, 12 Sup. Ct 511, 36 L. Ed. 226; Head Money Cases, 112 U. S.
580, 5 Snp. Ct. 247, 28 L. Ed. 79& See ''Aliens.*' Dec Dig. ^Key No.) U 4S-51;
Cent. Dig. H 105-111.
394 THE POLICE POWER. (Ch. 14
Chinese, and the national quarantine law.** In the exercise of its
power to regulate commerce with the Indian tribes, congress may pro-
hibit the sale of liquor to an Indian under the charge of an agent
anywhere within the United States.*® And under the taxing power,
and in connection with the internal revenue system, it has enacted a
law "defining butter and imposing a tax upon, and regulating the man-
ufacture, sale, importation, and exportation of oleomargarine." *^ The
character of these various statutes, as police regulations, will be more
clearly seen by comparison with the examples of the exercise of the
same power by the states, now to be mentioned.
POLICE POWER OF THE STATES.
156« Subjeot to tlie authority of eonsress, wtthia tlio sphere of its
rishtfnl powers, and subject to mMj restriotioas imposed hj
the eoBstitution, the legislature of eaoh state possesses full
power to euaot polioe regulations on. n&atters relating to^
(a) The preservation of the state itself and the unhindered ezeou-
tion of its legitiniate f unotions.
(b) The prerention and punishment of crime.
(c) The preserration of the puhlio pea^^^ji^d order.
(d) The preserration of the public safety.
(e) The purity and preserration of the public niorals.
(f) The protection and promotion of the public health*
(g) The regulation of business, trades, or professions, the oonduct
of which may affeet one or other of the objects Just enumer-
' ated.
(h) The regulation of property and rights of property, so far as to
prerent its being used in a auinncr dangerous or detrimental
to others,
(i) The prcTcntion of trmudf eactortlon, and oppression.
(J) Beads and streets, and their preservation and repair,
(h) The preserration of game and flsh.
The Public Safety.
One of the prime objects for which the police power of the state
may be exercised, if not the most important of all, is the preservation
i*The former of these is the act of February 23, 1887 (U. S. Comp. St
1901, p. 3198), and the latter the act of February 15, 1893 (U. S. Comp. St.
1901, p. 3312).
20 u. S. y. HoUlday, 8 Wall. 407, 18 L. Ed. 182. Bee ** Indians,** Dec, Dig.
{Key No,) n S4, SS; Cent. Dig. fS 60-62; "Commerce,** Cent. Dig. S 95.
SI See U. S. y. Eaton, 144 U. S. 677, 12 Sup. Ct. 764. 36 L. Ed. 59L See
**Intemal Revenue,*' Deo. Dig. (Key No.) f 45; Cent. Dig. i 111,
§ 165) POLICE POWER OF THE STATES. 395
of the public safety. And in pursuance of tliis object, laws are passed
by all the states, the constitutionality of which is never so much as
brought in question. These are statutes for the prevention, detec-
tion, and punishment of crime, laws creating courts and their officers,
regulating criminal procedure, providing for policemen, sheriffs, jails,
and penitentiaries, in fact, establishing and directing the whole ma-
chinery of criminal justice.** This branch of the power in question
also includes the right of the state to confine convicted criminals in
its prisons and subject them to proper prison discipline; also the right
to require the confinement of dangerous lunatics and maniacs, and
possibly of habitual drunkards, after due investigation and hearing;
also the power to exercise police supervision over vagrants, tramps,
and beggars, and the power to exercise control and supervision over
habitual criminals, well known offenders, and suspicious characters.**
Again, there is included in this power "the pulling down houses and
raising bulwarks for the defense of the state against an enemy; seiz-
ing corn and other provisions for the sustenance of an army in time
of war, or taking cotton bags, as General Jackson did at Orleans, to
build ramparts against an invading foe." ** Another illustration of
police regulations for the benefit of the public safety is to be seen in
laws authorizing the destruction of houses in a city, to prevent the
spread of a conflagration. When the best or only available means of
controlling a fire is to destroy buildings which stand in its path, and
which would be burned if left standing, this may be done under prop-
er authority; and the owners cannot complain that their property is
ss To this head we may refer the laws prohibiting the making or mending
of burglars* tools, and those authorizing the seizure and destruction of such
tools, of gaming tables, and generally of things specifically designed for the
commission of crimes. Ex parte Roberts, 166 Mo. 207, 65 S. W. 726; Mullen
V. Mosley, 13 Idaho, 457, 90 Pac. 986, 12 L. R. A. (N. S.) 394, 121 Am. St Rep.
277. But a municipality cannot compel street railroads to carry policemen
free of diarge. Wilson y. United Traction CJo., 72 App. Dir. 233, 76 N. Y. aupp.
203. See ^^Constitutional Law," Dec. Dig. {Key No,) | 81; Cent. Dig. % US.
ss Morgan y. Nolte, 37 Ohio St. 23, 41 Am. Rep. 485. But a rule made by
the police officers of a city to photograph and measure for the ''rogue's gal-
lery" such persons suspected or charged with criminal offenses (but not con-
yicted) as they may choose to subject to such treatment, is unlawful and
yold, and its enforcement is a trespass. Gow y. Bingham, 57 Misc. Rep. 66,
107 N. Y. SuiHI). lOlL Bee "^ Constitutional Law,*' Dec. Dig. (Key No.) ff 77,
79, 8S.
>« Parham y. Justices of Inferior Court of Decatur Ck>unty, 9 Qa. 341. See
**Warr Dec. Dig. (Key No.) ^ U; Cent. Dig. % S9.
396 THB POLICB POWBB. (Ch. 14
taken without due process of law, although no ccxnpensation is pro-
vided for them.*' Other examples of the operation of the police
power for ithe same end are the laws limiting the number of passen-
gers which steamboats may carry, providing for the inspection of
their boilers, and requiring them to provide life-preservers; laws or
ordinances requiring dangerous machinery to be so guarded as to
prevent injuries and accidents; laws establishing fire limits in cities,
X within which wooden buildings may not be erected; *• laws prohibit-
ling the keeping of gunpowder or inflammable oils in unsafe quantities
Jin cities and villages ; *^ laws taxing dogs, requiring their registra-
Ition, or requiring them to wear a collar or muzzle, and authorizing
Itheir destruction if found running at large in violation of the law.*'
bn this class of enactments must also be included laws or ordinances
^prohibiting the use of bicycles on certain roads unless permitted by
the superintendent of such roads,** laws providing that all oils and
fluids used for illuminating purposes shall be inspected by an author-
ized state officer before being sold or offered for sale,*® laws forbid-
ding the carrying of concealed deadly weapons,** and laws prohib-
iting or regulating processions or parades of armed bodies of men not
«B Surocco v. Geary, 8 Cal. 60, 58 Am. Dec. 385; Taylor v. Inhabitants of
Plymouth, 8 Mete. (Mass.) 462; Stone y. Mayor, etc., of City of New York,
25 Wend. (N. Y.) 157 ; Russell v. Mayor, etc., of City of New York, 2 Denio
(N. Y.) 461 ; Altken v. VUlage of Wells River, 70 Vt 308, 40 Atl. 829, 41 L.
R. A. 566, 67 Am. St. Rep. 672; Field v. City of Des Moines, 39 Iowa, 575,
28 Am. Rep. 46; Keller y. City of Corpus Christl, 50 Tex. 614, 32 Am. Rep.
613 ; McDonald y. City of Red Wing, 13 Minn. 38 (Gil. 25) ; American Print
Works y. Lawrence, 21 N. J. Law, 24a See ^^Constitutional Law," Dec, Dig.
{Key No.) S S20; Cent. Dig. f 77i.
s«City of Salem y. Maynes, 123 Mass. 372; Ex parte Meyers, 7 Cal. App.
628, 94 Pac. 870; Ex parte Cain (Tex. Or. App.) 120 S. W. 999. See ''Consti-
tutional Law,*' Dec. Dig. {Key No.) f 81; Cent. Dig. | U8; ''Municipal Cor-
porations,*' Dec. Dig. (Key No.) f 603; Cent. Dig. f ISSi.
«7 Crowley v. Ellsworth, 114 La. 308, 38 South. 199, 69 L. R. A. 276. 108
Am. St Rep. 353 ; Standard Oil Co. v. C>)mmon wealth, 119 Ky. 75, 82 S. W.
1020, 26 Ky. Law Rep. 985. See "Explosives,** Dec. Dig. {Key No.) f 2; Cent
Dig. I i.
2 8 Cranston y. Mayor, etc., of City of Augusta, 61 Ga. 572. See ** Animals.**
Dec. Dig. (Key No.) % 49; Cent. Dig. { 1^6; "Municipal Corporations,** Deo.
Dig. (Key No.) f 604; Cent. Dig. §§ 1336, 1337.
2» State y. Yopp, 97 N. a 477, 2 S. E. 458, 2 Am. St Rep. 305. See "Conr
stitutional Law,** Dec. Dig. (Key No.) ff 202; Cent. Dig. | 807.
_ 30 Patterson y. Kentucky, 97 U. S. 501, 24 L. Ed. 1115. See ** Inspection,*^
Dec. Dig. (Key No.) %2; Cent. Dig. § 2.
•1 City Council of AbbeyiUe y. Leopard, 61 S. C. 99, 39 S. £. 248; Town of
§ 155) FOLIGE POWBB OF THE STATES. 397
belonging to the military forces of the state or of the United States.'*
To the same category belong the laws and ordinances requiring that
all buildings of certain kinds or classes shall be equipped with fire-
escapes.' • On the same principle, it is competent for the proper au-
thorities to require that all electric wires, in populous cities, shall be
laid under the surface of the streets."* Finally, we may mention the
statutes, in force in some of the states, which require that all bottles
or packages sold by druggists and containing poison shall be plainly
marked with the word "Poison," and those which require pharmacists
to keep a record of all poisons sold by them, with the names of the
purchasers. Laws of all the foregoing varieties have been sustained
by the courts as valid and constitutional, whenever they have been
called in question, on the ground that they are police regulations for
the preservation of the public safety, notwithstanding the effect they
may have on private rights or private property.
The Public Morals.
Many statutes have been enacted in the various states for the pro-
motion and preservation of public morality. And they have almost
without exception been sustained by the courts as valid police regula-
tions.*' Among these should be mentioned the laws defining and pun-
ishing blasphemy; laws requiring the intermission of business and
secular emplo3rments on Sunday ; '* laws punishing offenses against
Orrlck v. Akers, 109 Mo. App. 862, 83 S. W. 540. See ^'Weapons,'* Dec. Dig.
{Key Vo.) %% «, 9; Cent. Dig. f| 2. S.
•8 Dunne y. People, 94 lU. 120, 84 Am. Rep. 213. Bee **MiUtia," Dec. Dig.
{Key No.) it; Cent. Dig. f 2.
«» Seattie y. Hinckley, 40 Wash. 468. 82 Pac. 747, 2 L. R. A. (N. S.) 398.
Bee "Municipal Corporations,** Dec. Dig. {Key No.) f 603; Cent. Dig. Sf ISSJ^,
1S87.
84 American Rapid Tel. Ck). y. Hess, 125 N. Y. 641, 26 N. E. 919, 13 L. R.
A. 454, 21 Am. St. Rep. 764; City of Geneya y. Geneya Tel. Co., 30 Misc.
Rep. 236, 62 N. Y. Supp. 172. But see Kibble Tel. Oo. y. Lendphere, 151 Mich.
300. 115 N. W. 244, 16 L. R. A. (N. S.) 689. Bee **Telegraph8 and Tele-
phones," Dec. Dig. {Key No.) { 10; Cent. Dig. f 6.
SB But see Ex parte McCaryer, 39 Tex. Cr. R. 448, 46 S. W. 936, 42 L. R.
A. 587, 73 Am. St. Rep. 946, holding unreasonable and yoid a "carfew" or-
dinance ot a municipal corporation, requiring children to be off the public
streets by a certain hour of the eyening. Bee ^'Municipal Corporations,** Dec.
Dig. {Key No.) Sf 596, 598.
8« Petit y. Minnesota, 177 U. S. 164, 20 Sup. Ct 666, 44 L. Bd. 716; State
y. Hogrleyer, 152 Ind. 652, 53 N. E. 921, 45 L. R. A. 504 ; State y. Nesbit, 8
Kan. App. 104, 54 Pac. 326; City of St. Louis v. De Lassus, 205 Mo. 578, 104
a W. 12; Ex parte Northrup, 41 Or. 489, 69 Pac. 445. Bee "Blasphemy,**
398 THE POLICE POWER. (Ch. 14
decency; laws making it a misdemeanor to disturb a religious meet-
ing; •^ laws prohibiting or regulating the sale of intoxicating liquors;
those designed for the extirpation of brothels; those which pro-
hibit the publication, exhibition, or sale of obscene books or pictures ;
those prohibiting gaming or the keeping of gaming tables or other
gambling devices, or regulating billiard and pool rooms,** or pro-
hibiting dealings on the stock exchange on margins or the purchase
and sale of "options** or "futures"; •• those aimed at the suppression
of lotteries and gift-enterprises; *• those prohibiting polygamous or
incestuous marriages ; ** and ordinances prohibiting the exhibition of
stallions in public places.** To this class, also, we should probably
refer the laws forbidding and punishing cruelty to animals.** The
best justification for these last-mentioned statutes, however, lies in
the vital interest which the state has in the development of peace-
able and law-abiding citizens, and in the repression, by every proper
means, of those savage and vindictive passions which prompt men to
the commission of crimes of violence.
Deo. Dig, (Key No,) S 1; Cent, Dig, f 1; ^'Sunday,'* Deo. Dig. (Key No.) H f»
5; Cent. Dig. ff 2, 5-10.
•T City of Talladega y. Fitzpatrick, 133 Ala. 613, 32 South. 252. Bee ''Mu-
nicipal Corporations," Dec. Dig, (Key No.) { 596; Cent. Dig. f§ 132S, ISH.
S8 City of CorlDth t. Crittenden (Miss.) 47 South. 625. But a munlcipat
ordinance is not valid which prohibits tlie playing of cards for money in pri-
vate places. Town of MarksviUe y. Worthy, 123 La. 432, 48 South. 11. See
'^Constitutional Law," Deo. Dig. (Key No.) ^ 81; Cent. Dig. I H8.
•• Booth y. People, 186 111. 43, 57 N. E. 798, 60 L. R. A. 762, 78 Am. St.
Repc 229 (affirmed in 184 U. S. 425, 22 Sup. Ct. 425, 46 L. Bd. 623) ; Parker
y. Otis, 130 Cal. 322, 62 Pac. 671, 027, 92 Am. St Rep. 56 (affirmed in 187
U. S. 606, 23 Sup. Ct 168, 47 L. Ed. 3^) ; Weare Commission 0>. v. Pec^le,
111 111. App. 116 ; State v. McGinnis, 138 N. C 724, 61 S. B. 50 ; Gatewood
y. North Carolina, 203 U. S. 631, 27 Sup. Ct 167, 51 L. Ed. 305. See '*aam^
ing," Dec. Dig. (Key No.) H S, 6S; Cent. Dig. IS 5, ItO,
40 Ford y. Stote, 85 Md. 465, 37 Aa 172, 41 L. R. A. 551, 60 Am. St Rep.
337. See ''Lotteries," Deo. Dig. (Key No,) f 2; Cent. Dig. f t.
41 Reynolds v. United Stotes, 98 U. S. 145, 25 L. Ed. 244. See '^Bigamy,"
Dec, Dig. (Key No,) | 1; Cent, Dig, f t,
4s Nolan y. Mayor, etc., of Town of Franklin, 4 Yerg. (Tenn.) 163; Ex
parte Foote, 70 Ark. 12, 65 S. W. 706, 91 Am. St Rep. 63. Bee "Municipal
Corporations," Dee, Dig. (Key No.) ^ €04; Cent. Dig. f 13S5,
4s Carter y. Colby, 71 N. H. 280, 51 AtL 904 ; Porter v. Vlnsant, 49 Fla.
218, 88 South. 607, 111 Am. St Rep. 93 ; City of St Louis y. Scfao^busch,
96 Ma 618, 8 S. W. 791* Sea "ConstUutional Law," Deo. Dig. (fey Na^ %
604; Cent. Dig. 1 1SS5.
§ 155) POLICE POWER OF THE STATES. 899
The Public Health.
The preservation of the public health is one of the chief objects for
which the police power may lawfully be exercised. Quarantine laws
established by the states furnish an illustration of a highly important
application of the power to this purpose. Such laws are within the
police power of the states.** And in the further discharge of the
state's duty to prevent the introduction and spread of epidemics, it is
competent to provide public hospitals or lazarettos, in proper places,
for the treatment of dangerous, infectious, or contagious diseases, and
to require the removal to such hospitals of all persons found to be
suffering from such diseases, even in cases where it is probable that
the patient himself would be properly cared for by his friends.*' The
same is true of regulations requiring houses where there are cases of
such diseases to display a conspicuous sign or warning, and laws au-
thorizing an official inspection of dwelling houses, with reference to
their sanitary condition, in times of epidemic or other great sickness.**
And it is held that, vaccination being the most effective method known
of preventing the spread of a deadly and highly contagious disease,
it is competent for the legislature to enact that all children shall be
vaccinated before being permitted to attend the public schools.*^
Other examples of statutes belonging to this class, and to be justified
on this ground, are those intended to secure a wholesome and sufficient
supply of pure water for cities, including the purchase or maintenance
«« Gibbons t. Ogden, 9 Wheat. 203, 6 L. Ed. 23 ; Train t. Boston Disinfect-
ing Co., 144 Mass. 523, 11 N. E. 929, 59 Am* Rep. 113 ; Compagnie Francaise
de Navigation v. State Board of Health, 51 La. Ann. 645, 25 South. 591, 56
L. R. A. 795, 72 Am. St. Rep. 458. Bee "Commerce,^ Dec Dig. (Key No.) |
6t; Cent. Dig. ^ 4$; ^'Health,'' Dec. Dig. (Key No.) f W; Cent. Dig, S «7.
«B Harrison y. Mayor, etc., of Olty of Baltimore, 1 Gill (Md.) 264 ; Brown
T. Pnrdy, 54 N. Y. Super. Ct. 109. See Kirk t. Board of Health, 83 S. C. 872,
65 8. R 387 ; Kirby y. Harker (Iowa) 121 N. W. 1071. See "Health,'' Deo. Dig.
(Kty No.) f ti; Cent. Dig. | 27.
4cThe exercise of summary power glyen to health officers to qoarantine
persons likely to spread contagion Is not obnoxious to the requirement of
"due process of law." In re Smith, 84 Hun, 465, 32 N. Y. Supp. 817. Bee
**Conetitntion4a Lau>r Dec Dig. (Key No.) I 255; Cent. Dig. | 7S8; ''Health,'*
Dec Dig. (Key No.) f $4; Cent. Dig. f 27.
«T Abeel t. Clark, 84 Gal. 226, 24 Pac. 383 ; In re Walters, 84 Hun, 457, 82
N. Y. Supp. 822; Duffleld t. Wllliamsport School Dist, 162 Pa. 476, 29 AtL
742, 26 L. R. A. 152; Blssell T. Deyison, 65 Conn. 183, 82 AU. 848, 29 Ia R.
A. 251 ; Frendi t. Dayidson, 148 Cal. 658, 77 Pac. 663 ; Yiemeister t. White,
88 App. DlT. 44, 84 N. Y. Supp. 71Z Bee **8chooU and School Dietricte,"
Dec Dig. (fey No.) I X58; Cent. Dig. | S29.
400 THB POLICB POWBB. (Ch. 14
of water-works/* those requiring the clearing or draining of swampy
or marshy lands which might otherwise breed disease, those regulat-
ing the sale of opium, cigarettes, or other commodities deemed injuri-
ous to the public health; ** those authorizing the exclusion from the
state, or the destruction, of animals affected with contagious diseases,*®
those requiring the laying of sewers in cities, and obliging the owners
of dwelling houses to make connection with them. Here also should
be mentioned inspection laws, when designed to protect the public
against the introduction of commodities unfit for use. A city ordi-
nance declaring that the cultivation of rice within the corporate lim-
its of the city is injurious to the public health, and providing for the
removal and destruction of the growing crops of rice within the lim-
its of the city, is also a valid police regulation.'* So the state or a
city may lawfully forbid the depositing of garbage or filth in any
place, public or private, except such places as may be designated for
that purpose by the superintendent of highways.'* And a city may
prohibit the keeping of swine or dairies or cow stables within partic-
ular districts of the city.'* And again, a law requiring all physicians
48 1 Dill. Mun. Corp. ^ 146.
*»Bx parte Yung Jon (D. C.) 28 Fed. 308; Gnndling y. CSiicago, 177 U.
S. 183, 20 Sup. Ct. 633. 44 L. Ed. 725; State v. Roberts. 74 N. H. 476, 69
Atl. 722. 16 L. R. A. (N. S.) 1115. But see City of Chicago t. Netcher, 183
111. 104, 55 N. B. 707, 48 L. R. A. 261. 75 Am. St. Rep. 93. It has even been
held that a law making it a misdemeanor to smoke opium is a ralid exercise
of the police power. Ah Lim v. Territory, 1 Wash. St 156, 24 Pac. 588, 9 L.
R. A. 395. See "Constitutional Law," Dec. Dig, {Key No.) S 86; Cent. Dig,
i 155; '^Health," Dec. Dig. {Key No.) | SS.
50 Hannibal & St J. R. Co. v. Husen, 05 U. S. 465, 24 L. Ed. 527 ; Misaouri
Pac. Ry. Co. v. Finley, 38 Kan. 550, 16 Pac. 951 ; Newark & S. O. H. C. Uy.
Co. y. Hunt, 50 N. J. Law, 308, 12 Atl. 697. But an ordinance which, imme-
diately upon the death of a domestic animal, and before it becomes a nui-
sance or dangerous to public health, deprives the owner of the animal of his
property in the carcass, and vests It in a public contractor for the removal of
such carcasses, takes private property without due process of law and is
void. Richmond v. Caruthers, 103 Va. 774, 50 S. E. 265, 70 L. R. A. 1005.
See "Constitutional Law," Dec Dig. {Key No.) H 278, 29S; Cent. Dig. f 8U.
Bi Green y. Mayor, etc., of City of Savannah, 6 Ga. 1. See "Municipal Cor-
porations," Dec. Dig. {Key No.) S 6G0; Cent. Dig. f 1332.
B2 Ex parte Casinello, 62 Cal. 538. California Reduction Co. y. Sanitary
Reduction Works, 199 U. S. 306, 26 Sup. Ot 100, 50 L. Ed. 204; Common-
wealth V. Emmers, 33 Pa. Super. Ct. 151. See "Municipal Corporations,"
Dec. Dig. {Key No.) { 607; Cent. Dig. f 1341.
B8 Commonwealth y. Patch, 97 Mass. 221; Fischer y. St LouiB» 194 U. S.
8 155) POLIGS POWEB or THS 8TATBS. 401
and midwivcs to report to the clerk of the court, within thirty days
after their occurrence, all births and deaths which may come under
their supervision, is valid and constitutional.'*
Purity of Food Products.
It is undoubtedly within the legitimate scope of the police power
to prohibit the adulteration of articles intended for human food, and
to impose penalties upon those who sell, or offer for sale, tainted, un-
wholesome, or adulterated food products.'" Where the adulteration
consists in the addition of something dangerous or deleterious to
health, the ground of state interference is very clear. When the added
ingredient is harmless in itself, the sale of the adulterated compound
may still be forbidden, on the ground of the fraud and deception prac-
ticed in its sale.*' For reasons partly connected with the public healthj
and partly with the prevention of fraud, it is held that laws prohibit-]
ing or regulating the manufacture and sale of oleomargarine are valid
as an exercise of the police power.'* So, also, a statute or city ordi-j
361» 24 Sup. Ot 673, 48 L. Ed. lOia See "Municipal Corporations,^ Deo, Dig.\
(Key No.) f 604; Cent, Dig. f ISSS.
B« RobloBon y. Hamilton, 60 Iowa, 184, 14 N. W. 202, 46 Am. Rep. 63. In
order to connect a law of this kind with the police power, it is only neces-
sary to reflect that modem sanitary science owes much to the system of
registering and reporting dangerous diseases and the localization thereby of
unsanitary conditions. See ''Constitutional Law,'* Dec. Dig. (Key No.) | 278;
Cent. Dig. f 77«.
•B North American Cold Storage Go. t. Chicago (O. O.) 151 Fed. 120; Smith
T. Alphin, 160 N. C. 425, 64 8. E. 425 ; Savage y. Scoyell (O. C.) 171 Fed. 566.
See also the federal '*pure food law," Act Cong. June 30, 1906, 34 Stat 768,
U. 8. Comp. St Supp. 1009, p. 1191. And see United States y. 650 Cases
Tomato Catsup (D. C.) 166 Fed. 773. The sale of provisions unflt for human
use was indictable at common law. See Swain v. SchieflTelin, 134 N. Y. 471,
31 N. B. 1025^ 18 Ia B. A. 385. Bee ''Constitutional Law,*' Dec. Dig. {Key No.)
I £78.
■•As to laws forbidding the sale of foods containing artiflclal preserva-
tives, see People v. Biesecker, 58 App. Div. 391, 68 N. Y. Supp. 1067. As to
statute prohibiting sale of cream containing less than twenty per cent of
fat, see State v. Tetu, 98 Minn. 351, 107 N. W. 953, 108 N. W. 470. Ajs to
invalidity of law requiring all padcages of fruit to be stamped with a true
statement of the place where grown, see Ex parte Hayden, 147 Gal 649, 82
Pac. 815, 1 L. R. A. (N. S.) 184, 109 Am. St. Rep. 183. See "Food," Dec. Dig.
{Key No.) 1 1; Cent. Dig. ft 1, t; "Constitutional Law,** Dec. Dig. {Key. No.)
H 8S, 296.
»7 Powell V. Pennsylvania, 127 U.. S. 678, 8 Sup. Ct 992, 1257, 32 L. Ed.
258 ; Capitol City Dairy Co. v. Ohio, 183 U. S. 238, 22 Sup. Ct. 120, 46 L. Ed.
171 ; licCann v. Qommonwealth, 198 Pa. 509, 48 Atl. 47a . Qo^npare People
Bl.Con8T.L.(3d.Ed.)— 26
402 THE POLICE POWBB. (Ch. 14
nance prohibiting the adulteration of milk, providing for an analysis
of milk by an authorized milk inspector, and prohibiting the feeding
of cows on still slops and the vending of the milk of cows so fed, is
valid as an exercise of the police power.** The same is true of a law
requiring baking powder which contains alum to be marked so as to
show that fact.** And an ordinance is valid which requires the filling
up of wells on premises where bread is made, when its object is to
prevent the use of unwholesome well water in the making of bread
for public distribution and consumption.**
Intoxicating Liquors.
That the regulation of the manufacture and sale of intoxicating liq-
uors is a proper subject for the exercise of the police power, is a
proposition which has never been doubted. On all the grounds which
are recognized as most safely and surely bringing a matter within the.
scope of this power, the production and selling of intoxicants is in-
cluded within the sphere of its legitimate operations. Whatever form,
therefore, the regulating or restricting law may assume, if it is not
in contravention of some constitutional provision, it is to be sustained
as valid on this ground. This has been the decision in regard to laws
totally prohibiting the manufacture and sale of liquors, laws allow-
ing such prohibition to particular parts of the state at their option,
laws licensing the traffic in liquors, regulating or prohibiting the sale
on certain days or in certain places, or to particular classes of per-
sons, authorizing the search for and seizure of liquors illegally kept
for sale, imposing special or punitive taxation upon the business, and
laws giving a right of action in damages to persons injured as a con-
sequence of particular sales against the persons making such sales.*^
▼. Marx, M N. Y. 877, 2 N. Bk 29, 62 Am. Rep. 34. Bee ""Feod** Dec Dig.
{Key No.) | 8; Cent. Dig. %% 1, 7, 8.
•• Commonwealth t. Waite, 11 Allen (Mass.) 264, 87 Am. Dec. 711 ; Gom-
monwealth t. Carter, 182 Mass. 12; State t. Campbell, 64 N. H. 402, 18 Atl.
585, 10 Am. 8t Rep. 419; Johnson t. Simonton, 43 Cal. 242. See **Food,"'
Dec. Dig. (Key No.) | i; Cent. Dig. | 1.
••Stolz ▼. Thompson, 44 Minn. 271, 46 N. W. 410; State v. Sherod, 80
Minn. 446, 83 N. W. 417, 50 L. R. A. 660, 81 Am. St Rep. 26& Bee ''Food:'^
Dec Dig. (Key No.) | i; *'Conetitutionia Law,'' Deo. Dig. (Key ^oO I 296 r
Vent. Dig. i 827.
•0 state V. Schlemmer, 42 La. Ann. 1166, 8 South. 807, 10 L. R, A* 185.
See "^Eminent Domain," Dec. Dig. (Key No.) | 8; Cent. Dig. | 4.
ei See Boston Beer Co. v. Massachusetts, 97 U. 8. 26, 24 L. Bd. 089; Mng*
ler T. Kansas* 128 U. 8. 628, 8 Sup. Ot 278, 81 U fid. 206; Crowley t. Obrts-
§ 155) FOLICE POWER OF THE STATES. iOS
Public Peace, Order, and Comfort
To preserve the public peace, good order, and tranquillity is the duty
of the state, and laws made for that purpose are within the legitimate
scope of the police power. Thus statutes and ordinances may be
enacted for the punishment of drunkenness and disorderly or ob-
streperous conduct in public places ; •* and so also, within reasonable
limits, laws regulating parades and processions in city streets or
placing them under the control of municipal officers ;•■ laws for the
punishment of those who shall maliciously or unnecessarily disturb
religious meetings ; •* laws forbidding unlawful or disorderly as-
semblies;*' and laws closing saloons and other places of public re-
tensen, 137 U. S. 86, 11 Sup. Ct 13, 84 L. Bd. 020 ; Fisher ▼. McGirr, 1 Gray
(Mass.) 1, 61 Am. Dec. 881; Lincoln t. Smith, 27 Vt. 328; State t. Ludlog-
toD, 33 Wis. 107 ; Fell t. State, 42 Md. 71, 20 Am. Rep. 83 ; Slblla ▼. Bahney,
84 Ohio St 389 ; Bertholf t. O'Reilly, 74 N. Y. 500, 30 Am. Rep. 323 ; Kldd
V. Pearson, 128 U. S. 1, 9 Sup. Ct. 6, 32 L. Ed. 346; Foster v. Kansas, 112
U. S. 201, 5 Sup. Ct 8, 97, 28 L. Ed. 629; Bowman y. Chicago ft N. W. R.
Co., 125 U. S. 465, 8 Sup. Ct 689, 1062, 31 L. Ed. 700 ; Commonwealth v. Cer-
tain Intoxicating I/lquors, 115 Mass. 153; Trageser ▼. Gray, 73 Md. 250, 20
Atl. 905, 9 L. R. A. 780, 25 Am. St Rep. 587; Ex parte Young, 154 Cal. 317,
97 Pac. 822; Sweeney v. Webb, 33 Tex. Clr. App. 324, 76 S. W. 766; Ex
parte Dupree CTex.) 105 Sw W. 493 ; State t. Blxman, 162 Mo. 1, 62 S. W.
828; Dede t. Brown, 167 Mass. 290, 45 N. B. 765. For decisions on vaHd-
Ity of South CaroUna "Dispensary Law," see Cantini ▼. Tillman (C. (X) 54
Fed. 969; In re Langford (C. C.) 57 Fed. 570; McCuUough t. Brown, 41 S.
C 220, 19 S. E. 458^ 23 L. R. A. 410; State t. Aiken, 42 S. a 222, 20 S. B.
221, 20 Lk R. A. 845. See "rntoxicatinif Liquors;* Dec Dig. {Key No.) || 1-2S,
4S, 245, 98S; Cent. Dig. If ISl, 47, S65, 418.
•sCity of Glasgow ▼. Bazan, 96 Mo. App. 412, 70 8. W. 257; Brooke v.
State, 80 Ark. 304, 111 S. W. 471. See "CoMtUutional Law,'' Dec Dig. (Key
Vo.) I 81; Cent, Dig. | 148; **Municipal Corporaiione,*' Dec Dig. {Key No.) |
696; Cent. Dig. |i 1323, 1324; '* Disorderly Conduct,*" Dec Dig. (Key No.) ^ 1;
Cent. Dig. U 1-8; ''Drunkards;* Dec Dig. (Key No.) | 10; Cent. Dig, ff
10, 11.
•* Dunne t. People. 94 lU. 120, 34 Am. Rep. 213 ; Commonwealth t. Rem-
mel, 31 Plttsbi I.eg. J. (N. 8.) 125. But compare In re Frasee, 63 Mich. 396^
80 N. W. 72, 6 Am. St Rep. 310. See **Municipal Corporations,** Dec Dig.
(Key No.) | 703; Cent. Dig. | 1510.
•« aty of Talladega t. Fltzpatrlck, 138 Ala. 618, 82 South. 252. See ''Mu-
nicipal Corporations,** Dec Dig. (Key No.) ii 592, 596; Cent. Dig. i 1323; "Dis-
turbance of Public Assemblage,** Dec. Dig. (Key No.) % 1; Cent. Dig. | i.
•i Fltts ▼. Atlanta, 121 Ga. 567, 49 S. B. 793, 67 Ia. R. A. 808, 104 Am. St
Rep. 167; Love t. Judge of Recorder's Court of Detroit 128 Mich. 545, 87
N. W. 786, 55 L. R. A. 61& But an ordinance prohibiting standing, loafing,
or lounging on the public streets Is InTalld in so far as It interferes with tiie
404 THE POLICE POWBB. (Ch. 14
sort at certain hours of the night.** Again, it is the right of the pub-
lic to be protected against violent and unnecessary noises, and hence
the courts sustain the validity of laws agsdnst the discharge of fire-
arms or the explosion of firecrackers in the streets and other public
places,*^ or the beating of drums or sounding of other musical in-
struments at such times or in such ways as to cause general public
discomfort,** or the disturbance caused by hucksters and peddlers
crying their wares in the streets.* • So far as concerns the mere com-
fort of the people, it is clearly within the power of the state or mu-
nicipal legislature to suppress or prohibit such things as amount to a
general or common nuisance. Neither the federal constitution nor
that of any state gives to any man the right to maintain a public nui-
sance.^* On this ground the courts have upheld the validity of ordi-
nances forbidding the use of soft coal or the emission of dense black
smoke from smokestacks or chimneys within the limits of cities and
right of a citizen to stop and remain on the street so long as he behayes him-
self in an orderly manner and does not impede traffic. City of St Louis t.
Oloner, 210 Mo. 502, 109 S. W. 80, 15 L. R. A. (N. S.) 973, 124 Am. St. Rep.
750. See "Mundcipal Corporations,*' Dec, Dig, (Key No,) | 596; Cent, Dig. I
132S; **Con8titutional Law,** Dec, Dig, (Key No.) ^ 83,
•« State V. Freeman, 38 N. H. 426. Bee ** Intoxicating Liquor^,** Dec Dig.
{Key No.) | 15; Cent. Dig. i 18; *Vonstitutional Law,** Dec Dig. {Key No.)
i 87; Cent. Dig. i 166.
•T Flinn v. State, 24 Ind. 286 ; Mayor, etc., of City of Philadelphia v. Wards,
1 Phila. (Pa.) 517; City of Centralla r. Smith, 103 Mo. App. 438. 77 S. W.
488. See ''Municipal Corporations,** Dec. Dig. (Key No.) i 596.
•• Wilkes-Barre v. Garebed, 9 Kulp (Pa.) 273. But see In re Grlbben, 5
Okl. 379, 47 Pac. 1074, In which a municipal ordinance forbidding the making
of a noise in the streets by means of drums or other musical Instruments of
such a character or duration as to disturb or annoy others (an ordinance spe-
ciaUy directed against the Salvation Army) was held void, because unreason-
able and oppressive and in contravention of common rights. And see Ander-
son V. City of Wellington, 40 Kan. 173, 19 Pac. 719, 2 L. R. A. 110, 10 Am.
St Rep. 175. See ''Municipal Corporations,** Dec. Dig. (Key No.) f 109; Cent.
Dig. i 1510.
»• New Orleans t. Fargot, 116 La. 369, 40 South. 735. But an ordinance
prohibiting the peddling of garden produce on the streets between 5 a. m.
and 1 p. m. was held void in City of Buffalo v. Linsman, 113 App. Div. 584,
98 N. Y. Supp. 737. See "Municipal Corporations,** Dec Dig. (Key No.) \
615; Cent. Dig. % 1S5S.
TO City of St. Louis ▼. Fischer, 167 Mo. 654, 67 S. W. 872, 64 L. R. A. 679,
99 Am. St Rep. 614, affirmed in Fischer y. St Louis, 194 U. S. 361, 24 Sup.
Ct 673, 48 L. Ed. 1018. Bee "Nuisance,** Dec Dig. (Key No.) H 6, 60; Cent.
Dig. U 55^8, 1S7.
i
§ 166) POUCB FOWBB or THE STATES. 405
populous towns; ^^ and the prosecution in such places of occupations
attended by noisome or injurious odors.^* Beyond these limits the
police power should not be extended, though in some instances the
courts have lent their sanction to laws and ordinances for the sup-
pression of acts and practices, not pernicious in themselves, and which
at most could be productive only of annoyance to a limited number of
persons.^*
Regulation of Railways.
Among the many police regulations adopted by states and cities,
for the safety and comfort of the public in connection with the op-
eration of steam railways, all of which have been held constitutional,
may be mentioned the following: Laws regulating the speed of loco-
motives and trains in passing through cities and towns ; ^^ laws re-
quiring railroad companies to light such portions of their road as lie
Ti Atlantic City v. France, 75 N. J. Law. 910. 70 Atl. 163, 18 L. R. A- (N. S.)
156; Bowers t. City of Indianapolis, 169 Ind. 105, 81 N. E. 1097; Glucose
Refining Co. v. Chicago (C. a) IBS Fed. 209 ; State y. Tower, 185 Mo. 79, 84
S. W. 10, 68 Lk R. A. 402; Moses v. Untted States, 16 Ajpp. D. a 428; City
of Brooklyn v. Nassau Electric R. Co., 44 App. Dlv. 462, 61 N. Y. Supp. 33 ;
City of St Paul ▼. Haughbro, 93 Minn. 59, 100 N. W. 470, 66 L. R. A. 441,
106 Am. St. Rep. 427 ; Harmon y. City of Chicago, 110 111. 400, 51 Am. Rep.
698. See *'Mun4cipal CorporaiioM,'* Deo. Dig. (Key No.) | 606; Cent. Dig. %
1S39.
71 Slaughter-House Cases, 16 Wall. 36, 21 L. Bd. 394; Bx parte Shrader,
88 Cal. 279. See **MurUcipal CorporatiOM," Dec. Dig. (Key No.) | 611; Cent.
Dig. i 1348; **Con8titution<a Law," Dec. Dig. {Key No.) % »06; Cent. Dig.
f 629.
Ta State y. Heldenhaln, 42 La. Ann. 483, 7 South. 621, 21 Am. St. Rep. 388,
holding that the prohibition of tobacco smoking In street cars Is a reason-
able exercise of the police jwwer. See, also, Philadelphia y. Brabender, 9 Pa.
Dlst R. 697, sustaining the yalldlty of a city ordinance which prohibited the
throwing of adyertlsements, hand-bills, circulars, etc., in the yestibules of
dty houses. And see Ex parte Foote, 70 Ark. 12, 65 S. W. 706, 91 Am. St.
Rep. 68, where the court sanctioned an ordinance forbidding the keeping of
a jackass within a city within the hearing of the populace. But on the other
hand, in Borger y. State, 25 Ohio Cir. Ct. R. 263, it is held that a statute pro-
hibiting the operation within certain limits of any boiler factory which may
make a loud noise. Is an unwarrantable interference with private rights, un-
less it appears that the Interests of the general public require such restriction.
See "Municipal Corporations,*' Dec Dig. (Key No.) || S96, 605; Cent. Dig. ii
132S, 1S40.
7« Mobile ft O. R. Co. y. State, 51 Miss. 137 ; Mens y. Missouri Pac. Ry. Ca,
88 Mo. 672, 1 S. W. 382; Erb y. Morasch, 8 Kan. App. 61, 54 Pac. 32B. See
''Municipal Corporaiion$;* Dec Dig. (fey No.) ^ 618; Cent. Dig. | 1858.
406 THB POLICE POWER. (Ch. 14
within the limits of a city or town; ^* laws requiring such companies
to build and maintain highway crossings laid out over their track/*
or to t>uild and maintain a bridge where the track crosses a turnpike
road;^^ laws providing that, where two railroad tracks cross each
other at grade, a watchman shall be maintained at the joint expense
of the companies, and that all trains shall come to a full stop and wait
for signal before crossing at the junction;^* laws requiring locomo-
tives to carry a bell of a certain weight and a steam whistle, and to
ring the bell or blow the whistle five hundred yards before road cross-
ings, and making the failure to give such signals negligence per se; ^*
laws providing that, at all railroad crossings, the railroads crossing
there shall erect and maintain suitable depots and waiting rooms to
accommodate passengers ; •• laws requiring that, in the formation of
mixed trains, the baggage and freight cars shall be placed in front
of the passenger coaches ; •* laws forbidding railroad companies to
heat their cars with stoves or furnaces kept inside the cars or sus-
pended therefrom;'* laws requiring them to provide spark-arresters
for locomotives, to keep headlights of a certain reflective power on
engines, and to keep on hand certain means of escape in case of col-
lisions or fires; laws requiring them annually to publish their tariff
of rates for the transportation of passengers and freight ; •■ laws
T5 Cincinnati, H. ft D. R. Co. v. SuUlvan, 32 Olilo St. 152. See "Railroads,*'
Deo, Diff. (Key Vo.) f 159; Cent. Dig, fi 258.
T6 Portland & R. R. Co. v. Inhabitants of Deerlng, 78 Me. 61, 2 Atl. 670, 57
Am. Rep. 784. See ^'Constitutional Law,'* Dec, Dig, {Key No,) { 125; Cent,
Dig, i m^
7T People V. Boston & A. R. Co., 70 N. T. 569. See "Railroads,'* Dec. Dig,
(Key No,) % 94; Cent, Dig. { 266h^.
78 Lake Shore & M. S. Ry. Co. v. Cincinnati, S. & C. Ry. Co., 30 Ohio St.
604 ; Detroit, Ft. W. A B. I. R, Co. v. Osborn, 189 U. S. 383, 23 Sup. Ct. 540.
47 L. Ed. 860: See "Railroads,** Dec, Dig, (Key No,) ^ 89; Cent. Dig. S 23^.
T» Kamlnltsky v. Northeastern R. Co., 25 S. C. 53. See "Railroads,** Dec,
Dig. (Key No.) | 2U; Cent. Dig. $ 755.
80 State of Missouri v. Kansas City, Ft S. & G. R. Co. (C. C.) 32 Fed. 722;
State V. Wabash. St. L. & P. Ry. Co., 83 Mo. 144. See "Railroads,** Dec. Dig.
(Key No.) { 58; Cent. Dig. i ISO.
ai Arkansas M. Ry. Co. ▼. Canman. 52 Ark. 517, 13 S. W. 280. See "Rail-
roads,** Dec. Dig. (Key No.) | 227; Cent. Dig. $ 7^1.
«« People T. New York, N. H. & H. R. Co. (Sup.) 5 N. Y. Supp. 945; New
York, N. H. & H. R. Co. v. New York, 165 U. S. 628, 17 Sup. Ct. 418. 41 L.
Ed. 853. See "Railroads,** Dec. Dig. (Key No.) §§ 229, 254; Cent, Dig. H
74s, 765.
88 Chicago & N. W. R. Od. y. Fuller, 17 Wall. 560, 21 L. Ed. 710. Bee
"Commerce," Dec. Dig. (Key No.) S 58; Cent. Dig. | 77.
8 155) FOLIGB POWEB OF tHE STATES. 407
requiring that all railroad ticket offices shall be bpened for the sale
of tickets at least an hour before the departure of each train ;^^ laws
providing that all passenger trains shall stop at least five minutes at
each station, unless it should plainly appear that the vested rights of
the ccmipany were unduly prejudiced by such a regulation.** The
same principles apply to laws requiring street railway companies to
equip their cars with air or electric brakes,'* and with automatic
fenders,*^ and with screens for the protection of the motorman; ••• as
also to laws compelling railroads crossing each other to put in con-
necting switches and transfer cars ; •• laws obliging them to maintain
such connections with the trains of other roads as are necessary to
accommodate the traveling public ; ** and to admit railroad companies
to terminal facilities in cities.*^ But a law giving the occupant of a
lower sleeping-car berth control at his option of the upper berth, in
case it is not occupied, is unconstitutional.'* And so is a statute re-
quiring railroad companies to sell mileage books.'* As to injuries re-
sulting from the operation of railroads, it is competent to make them
•* Brady v. State, 15 Lea (Tenn.) 628. See ^'Carriers,'* Dec. Dig. (Key No.)
i tl; Cent. Dig. i 5S.
•• Galveston, H. & S. A. R. Ck>. v. Le Gierse, 51 Tex; 189. And see Louisi-
ana ft Au R. Ck>. T. State, 85 Ark. 12, 106 S. W. 960. Bee ''Railroads,** Dec.
Dig. {Key No.) If 12, 227.
•• People V. Detroit United Ry., 134 Mich. 682, 97 N. W. 36, 63 L. R. A.
746, 104 Am. St. Rep. 62a Bee ''Street Railroads,'* Dec Dig. (Key No.) f
75; Cent. Dig. 1 15S.
•T City of Elkhart v. Murray, 165 Ind. 804, 75 N. E. 598, 1 L. R. A. (N. S.)
940, 112 Am. St Rep. 228. Bee "Constitutional Law,'* Dec Dig. (Key No.) |
241; Cent. Dig. Si 700, 701.
•a State v. Whitaker, 160 Mo. 59, 60 S. W. 1068. Bee "Constitutional Law,**
Deo. Dig. (Key No.) ii 208, 296, 297; Cent. Dig. H 654, 8S2-835.
<• Jacobson ▼. Wisconsin, M. & P. R. Co., 71 Minn. 519, 74 N. W. 893, 40
L. R. Au 389, 70 Aul St. Rep. 358; Wisconsin, M. & P. R. Oo. t. Jacobson,
179 U. S. 287, 21 Sup. Ct. 155, 45 L. Ed. 194. Bee "Constitutional Law,** Dec
Dig. (Key No.) f 297; Cent. Dig. U 8S2-8S4.
•0 Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, 206 U.
& 1, 27 Sup. Ct 585, 51 L. Ed. 933. See "Constitutional Law,** Dec Dig. (Key
No.) ii 241, 297; Cent. Dig. ii 700, 701, 832-834^
•1 State T. Jacksonville Terminal Co., 41 Fla. 377, 27 South. 225. Bee "Con-
sUtutional Law,*' Dec Dig. (Key No.) i 297; Cent. Dig. U 832-834^
•a State T. Redmon, 134 Wis. 89, 114 N. W. 137, 14 L. R. A. (N. S.) 229, 128
Am. St Rep. 1003. Bee "Constitutional Law,** Dec Dig. (Key No.) B 81, 297.
•> Commonwealth ▼. Atlantic Coast Line R. Co., 106 Va. 61, 65 S. B. 572, 7
L. R. A. (N. S.) 1086, 117 Am. St Rep. 983. See "OonstUwtional Law,** Dee.
Dig. (Key NoJi § 297.
408
THB POLICn POWBB.
(Ch. 14
liable for damages for stock killed in consequence of their neglect
to fence their road or provide cattle guards,*^ and also liable for prop-
erty destroyed by fire communicated by their locomotives ;•• and to
make common carriers liable for loss or damages to goods in course
of transportation, whether occurring on their own lines or on connect-
ing lines,* • and liable for injuries to passengers, irrespective of the
company's negligence or fault, unless the injury was caused by the
passenger's own criminal negligence or disregard of a lawful rule of
the company brought to his actual notice.*^ The reason why railroad
companies may be subjected to such severe regulation under the police
power is that their business is a public one, and very materially con-
cerns the safety as well as the comfort and convenience of the public
at large.**
Regulation of Trades and Professions.
In the exercise of the police power, the state may limit the right of
employment. Trades and kinds of business which are essentially nox-
ious may be altogether prohibited by the legislature, if it shall deem
such action conducive to the public welfare. No person can have a
•4 MinneapolUi ft St L. R. Go. v. Beckwith, 129 U. S. 26, 9 Sup. Ot 207, S2
L. Ed. 585 ; Missouri Pac. R. Oo. v. Humes, 115 U. S. 512, 6 Sup. Ct 110,
29 L. Ed. 463 ; Biruilngham Mioeral R. Ck>. v. Parsons, 100 Ala. 662, 13 South.
602, 27 L. R. A. 263, 46 Am. St Rep. 92; Terre Haute & L. R. Oo. ▼. Sal-
mon, 161 Ind. 131, 67 N. E. 918 ; Yazoo & M. V. R, Ck>. v. Harrington, 85 Miss.
366, 37 South. 1016. Bee "Railroads,** Dec, Dig. {Key No,) ^ iOS; Cent, Dig.
If 762, IBS: ''ConetUuHonal Law,** Dec. Dig. (Key No.) H ^07, 802; Cent. Dig.
If m. 854.
•5 St Louis & S. F. R. Go. T. Mathews, 165 U. S. 1, 17 Sup. Ct 243, 41 L.
Ed. 611 ; Griseell v. Hoosatonic R. Co., 54 Conn. 447, 9 Atl. 137, 1 Am. St
Rep. 138; Lumbermen's Mut Ins. Co. ▼. Kansas City, Ft S. ft M. R. Co.,
149 Mo. 165, 50 S. W. 281 ; Brown v. Carolina Midland Ry., 67 S. C. 481, 46
S. E. 283, 100 Am. St Rep. 756. See "Railroads,** Deo. Dig. (Key No.) | 468;
Cent. Dig, i 1664.
»• Smeltzer v. St Louis & S. F. R. Co. (0. C) 158 Fed. 649. See "Constitu-
tional Law,** Dec Dig. (Key No.) {| 89, 297; Cent. Dig. H 882-834-
»T Chicago, R. I. & P. R. Co. v. Eaton, 183 U. S. 589, 22 Sup. Ot 228. 46
L. Ed. 341 ; Qark v. Russell, 97 Fed. 900, 38 C. O. A- 541. But see Zelgler
y. South ft N. A. R. Co., 58 Ala. 594 ; Ohio ft M. Ry. Oo. v. Lackey, 78 111. 55,
20 Am. Rep. 259; SUte v. Divine, 98 N. 0. 778, 4 S. E. 477. See "Constitu-
tional Law,** Dec. Dig. {Key No.) H 297, 301; Cent. Dig. U 832-834, 848-850,
857.
•8 New York ft N. E. R. Co. t. Bristol, 151 U. S. 556, 14 Sup. Ot 437, 38
L. Ed. 269 ; Goddard v. Chicago ft N. W. R. Co., 202 111. 362, 66 N. E. 1066.
See "Constitutional Law,** Dec Dig. iM^ey No.) §S 88, 24I; Cent. Dig. S 700.
§ 166) POUOB POWSB OF THE STATSa 409
right to engage in the business of gambling, prostitution, or any other
avocation which is contra bonos mores. So also, the legislature may
lawfully forbid the prosecution of any business which, though not in-
herently vicious or immoral, is regarded as contrary to public policy,
or amounts to a depredation upon the lawful rights of others.*' An
illustration of this would be the business which is popularly known as
"ticket scalping." *•• In the next place, there are certain occupations
and professions in which the safety of the public, in regard to life,
health, or property, is closely and vitally dependent upon the posses-
sion, by those who practice them, of a competent degree of skill, knowl-
edge or technical training. And it is within the police power of the
state to restrict the right to engage in such professions or occupations
to those persons who can show, in some prescribed manner, a satis-
factory qualification for their pursuit.*®* This principle applies to
the professions of physicians and surgeons,*** attorneys at law,***
•• Gatewood t. North Carolina, 203 U. S. 631, 27 Sup. Gt 167, 51 Ii. Ed.
806. Bee *'ConHUuiional Lata," Deo. Dig. CKey yo,) | 240; Cent. Dig. H
688^99.
100 City of Chicago v. Openheim, 229 lU. 818, 82 N. B. 294; Bnrdick v.
People, 149 111. 600, 36 N. E. 948, 24 Ii. R. A. 152, 41 Am. St. Rep. 329 ; Fry
V. State, 63 Ind. 552, 80 Am. Rep. 238; State v. Manford, 97 Minn. 173, 106
N. W. 907; State ▼. Oorbett 57 Minn. 345, 59 N. W. 317, 24 L. R. A. 498;
State T. Thompson. 47 Or. 492, 84 Pac. 476, 4 L. R. A. (N. S.) 480 ; Common-
wealth T. Keary, 198 Pa. 500, 48 Atl. 472 ; Samnelson v. State, 116 Tenn. 470,
96 S. W. 1012, 115 Am. St Rep. 805; Ex parte Hughes, 50 Tex. Cr. R. 614,
100 S. W. 160 ; Jannin v. State, 42 Tex. Cr. R. 631, 51 S. W. 1126, 96 Am. St.
Rep. 821 ; In re O'Neill. 41 Wash. 174. 83 Pac. 104, 3 L. R. A. (N. S.) 558.
But in California and New York statutes prohibiting this business are held
miconstltutional. Ex parte Quan?. 149 Cal. 79, 84 Pac. 766, 5 K R. A. (N. S.)
183, 117 Am. St Rep. 115 ; People ▼. Caldwell, 108 N. T. 671, 61 N. B. 1132 ;
People T. Warden of City Prison, 157. N. Y. 116, 51 N. B. 1006, 43 L. R. A.
264, 68 Am. St Rep. 763. See 'Vonstitutional Law,"" Dec. Dig. (Key No.) U
87, tS9, rrS; Cent. Dig. | 828.
101 Ex parte Whitley, 144 Cal. 167. 77 Pac. 879. Bee '*CoMtiiiaional Law,**
Dec. Dig. (Key No.) | 208; Cent. Dig. i 651.
losDent t. Weet Virginia, 129 U. S. 114, 9 Sup. Ct. 231, 32 L. Ed. 623;
People V. Phippin, 70 Mich. 6, 87 N. W. 888; Hewitt ▼. Charier, 16 Pick.
(Mass.) 853; Ex parte Spinney, 10 Nev. 323; Austin v. State, 10 Mo. 591;
State ▼. Forcier, 65 N. H. 42, 17 AU. 577 ; Wilkins v. State, 113 Ind. 514, 16
N. E. 192 ; People v. Gordon, 194 111. 560, 62 N. E. 858, 88 Am. St Rep. 165 ;
iot In re Bradwell, 65 111. 635; BradweU v. Illinois, 16 WaU. 180, 21 L. Ed.
442 ; In re O'Brien's Petition, 79 Ck>nn. 46, 63 Atl. 777. See In re Percy, 36
N. Y. 651. Bee '^Constitutional Law,** Dec. Dig. (Key No.) f £75; Cent. Dig.
I 848; '*Attomey and Client,** Dec Dig. (J^ey No.) I 1; Cent. Dig. 1 1.
410 THB POLICE POWER. (Ch. 14
druggists and pharmacists,^** dentists,^** plumbers/** pilots and mas-
ters of ships,^*^ barbers,^** locomotive engineers/** and railroad em-
ployes in general, so far as regards testing them for color blindness
and defective vision/** But there is no justification of this kind for
a law requiring the examination and licensing of persons engaged in
the trade of horseshoeing.*** In the next place, measures may be
taken for the protection of persons unfitted for the more toilsome kinds
of labor, as women and children, and for keeping them out of trades
or occupations detrimental to their health or strength or injurious to
State y. Wilcox, 64 Kan. 789, 68 Pae. 634 ; Allopathic State Board of Medical
Examiners t. Fowler, 50 La. Ann. 1358, 24 South. 809; Commonwealth v.
Finn, 11 Pa. Super. Ct. 620; Parks v. State, 159 Ind. 211, 64 N. EX 862, 59
L. B. A. 190. But a statute regulating the practice of medicine which should
discriminate in favor of or against one school of medicine would not be valid.
White y. Carroll, 42 N. Y. 161, 1 Am. Bep. 503. But see State y. Marble, 72
Ohio St. 21, 73 N. E. 1063, 70 L. R. A. 835, 106 Am. St Bep. 570, as to dis-
crimination against 'HDhristlan Scientists." See "Constitutianal Lato,** Deo.
Dig, (Key No.) f§ 208, 296; Cent. Dig. fS 651, 830; '^Physicians and Sur-
geons,** Deo. Dig, {Key No.) || 1, 2; Cent Dig. H 1, 2.
104 Noel y. People, 187 111. 587, 58 N. E. 616. 52 L. B. A. 287, 79 Am. St.
Rep. 238; Stete y. Kumpfert, 115 La. 950, 40 South. 365; State y. Heine-
nxann, 80 Wis. 253, 49 N. W. 818, 27 Am. St. Bep. 84. Bee "Constitutional
Law," Dec Dig. (Key No,) S| 287, 296; Cent. Dig. U 8S0, 8S1.
108 Gothard y. People, 32 Colo. 11, 74 Pac. 890; State y. Chapman, 70 N. J.
Law, 339, 57 AtL 1133. See "Constitutional Law,** Deo. Dig. (Key No.) | 208;
Cent. Dig. | 651.
106 Singer y. Maryland, 72 Md. 464, 19 Atl. 1044, 8 L. B. A. 551 ; Douglas
y. People, 225 lU. 536, 80 N. E. 841, 8 L. B. A. (N. S.) 1116, 116 Am. St Bep.
162. But see State y. Gardner, 58 Ohio St. 599, 51 N. E. 136, 41 L. B. A.
689, 65 Am. St Bep. 785. See "Constitutional Law,** Deo. Dig. (Key No,) i
296; Cent. Dig. f 8S0.
107 Petterson y. Board of Oom'rs of Pilots for Port of Galyeston, 24 Tex.
Civ. App. 33, 57 S. W. 1002. See "Constitutional Law,** Dec. Dig. (Key No.)
88.
J108 State y. Walker, 48 Wash. 8, 92 Pac. 775; State y. Armeno (B. I.) 72 Atl.
216. Compare Templar y. State Board of Examiners of Barbers, 131 Mich.
254, 90 N. W. 1058, 100 Am. St Bep. 610. See "Constitutional Law,** Dec. Dig.
(Key No.) || 81, 88, 88, 208, 230, 215.
109 Smith y. Alabama, 124 U. S. 465, 8 Sup. Ct 564, 31 L. Ed. 50& See
"Commerce,** Deo. Dig. (Key No,) | 58; Cent. Dig. | 85.
110 NashyUle, C. ft St L. B. Co. y. Alabama, 128 U. S. 96, 9 Sup. Ct 28» 32
L. Ed. 35Z See "Commerce,** Dec. Dig. (Key No.) f 58; Cent. Dig. | 85.
111 Bessette y. People, 193 111. 334, 62 K. E. 215, 56 L. B. A. 558; People y.
Beattle, 96 App. Dly. 383, 89 N. Y. Supp. 193 ; In re Aubry', 36 Wash. 306, 78
Pac. 900, 104 Am. St Bep. 962. See "Constitutional Law,** Dec Dig. (Key
No,) II t75t 287.
5 155) FOLICE POWER OF THE STATES. 411
their morals.*** Further the proper scope of police regulations ex-
tends to those kinds of business which are devoted to a public or quasi
public use, or which offer peculiar opportunities for deceit, fraud, or
oppression. In this class we may include the business of laundries
in cities,*** that of hawkers and peddlers, pawnbrokers, and junk deal-
ers,*** and some others.*** But in general the ordinary and common
trades, callings, and forms of business, which are innocuous in them-
selves and have been followed in all communities from time imme-
morial, are not subject to interference or restraint under the pre-
tence of police regulations, and must be free to all alike on the same
terms.*** Subject to this qualification, the conduct of a business, as
well as the right to engage in it, may be regulated by law. Thus, the
hour for closing saloons and restaurants may be fixed by law, and the
lis Blair v. Kilpatrlck, 40 Ind. 812 ; In re Maguire, 57 Cal. 604, 40 Am. Rep.
125; Ex parte Hayes, 08 Cal. 555, 33 Pac. a37, 20 L. R. A. 701; People v.
Ewer, 141 N. T. 129, 36 N. E. 4, 25 Ii. R. A. 794, 38 Am. St Rep. 788. See
'^Constitutional Law,*' Dec, Dig. (Key No.) | 22^; Cent. Dig, % 725.
lis Barbler v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923 ; Ex parte
W^lte, 67 Cal. 102, 7 Pac. 186. See "Municipal Corporations:' Dec. Dig. (Key
No.) I 611; Cent. Dig. i m7; **Con9titutional Law;* Dec. Dig. (Key No.) if
SI, 238; Cent. Dig. U US, 696.
114 Servonlte v. State. 133 Wis. 231. 113 N. W. 277. 126 Am. St Rep. 955;
State Y. Cohen. 73 N. H. 543, 63 Atl. 928 ; Phillips ▼. State, 77 Ohio, 214, 82
N. E. 1064; Commonwealth t. Mlntz, 19 Pa. Super. Gt 283. See **HatDker9
end Peddlers," Dec. Dig. (Key No.) i i; Cent. Dig. | i; ''Licenses:' Dec Dig.
{Key No.) ^ 5; Cent. Dig. U 4, 19.
lis See. as to narserymen. Ex parte Hawley (S. D.) 115 N. W. 93. 15 L. R.
A. (N. S.) 138; homestead associations, American Homestead Co. t. Karsten-
diek. Ill La. 884, 35 South. 964 ; real-estate brokers, City of St Louis t. Mc-
Cann, 157 Mo. 301. 57 S. W. 1016 ; employment agencies, People ▼. Warden of
City Prison. 183 N. Y. 223. 76 N. B. 11. 2 L. R. A. (N. S.) 859 : emigrant agenta.
wnilams V. Fears, 179 U. S. 270, 21 Sup. Ct 128, 45 L. Ed. 186; keepers of
sailors* boarding houses, White y. Holman. 44 Or. 180, 74 Pac. 933 ; foreign
corporations. Roeder y. Robertson, 202 Mo. 522, 100 S. W. 1086. See "Consti-
tutional Lawr Deo. Dig. (Key No.) H 87. t07, 211, 2S0, 2kO, rtS, 296; "Mo-
nopolies,^ Deo. Dig. (Key No.) | 4.
ii« Butchers' Union S. H. & L. S. L. Co. Y. Crescent City lAve Stock Land-
ing & S. H. Co., Ill U. S. 746, 4 Sup. Ct 652, 28 L. Ed. 585 ; People y. Ringe.
125 App. DiT. 592. 110 N. Y. Supp. 74 ; Emerson Y. Town of McNeil, 84 Ark.
552. 106 S. W. 479. 16 L. R« A. (N. S.) 715 ; Young y. Commonwealth, 101 Va.
853, 45 S. E. 327 ; State Y. Walker, 48 Wash. 8, 92 Pac. 775 ; Wyeth y. Board
of Health of City of Cambridge, 200 Mass. 474, 86 N. E. 916, 128 Am. St Rep.
439. See "Constitutional Law," Dec. Dig. {Key No.) U ^^t ^08, 238; Cent. Dig.
fl US, 649-^7, 688-499, 706-708.
412 THE POLICE POWER. (Ch. 14
sale of intoxicating liquors in refreshment saloons may be prohib-
ited;**^ but an ordinance requiring groceries and dry goods stores
to close at a designated hour of the evening is void/** and the courts
have been unanimous in condemning as unconstitutional the statutes
enacted in many states forbidding merchants to issue "trading stamps"
or coupons as a means of advertising or stimulating trade.***
Regulation of Charges and Prices.
It was once customary, in England and on the continent, for laws
or royal proclamations to be issued regulating the rates of charges
to be made for various kinds of services, the wages of labor, and also
the price of various commodities. But the modem idea of freedom
in business requires that such matters shall be left almost wholly to
private arrangement. Government interference, in fixing wages or
prices, is regarded as an unlawful invasion of personal liberty, ex-
cept in so far as it may be justified by public exigencies. There are
still, however, some cases in which private arrangements may be con-
trolled by public law, under the police power. The authorities have
the power to fix or regulate prices and charges when the business in
question is one "affected with a public interest." It is not easy to
say what this phrase exactly means. But the authorities appear to use
it as descriptivjs of a business which is indispensable to the comfort
or convenience of the whole community, or which directly affects so
large a proportion of the people that the public prosperity and wel-
fare may be considered to depend, in somt measure, upon its being
conducted upon fair and just principles and without unreasonable
exactions.*** But even in respect to occupations of this class, the
"T state V. Freeman, 88 N. H. 426; State v. Clark, 28 N. H. 176, 61 Am.
Dec. 611. See **Con8titutional Law,'* Dec, Dig. (Key No.) | 87; Oeni. Dig.
%1G1.
118 State T. Ray, 131 N. C. 814, 42 S. E. 960, 60 L. R. A. 634, 92 Am. St. Rep.
795 ; Coatlcook t. Lothrop, Rap. Jud. Que. 22 C. S. 225. iSfee '^Municipal Cor-
porations,'' Dec, Dig. {Key No.) | 615; Cent. Dig. | 1S5S.
ii*Ex parte HutchiDSon (C. C.) 137 Fed. 950; Ex parte Drezel, 147 Cal.
763, 82 Pac. 429, 2 L. R. A. (N. S.) 588; State v. Ramseyer, 73 N. H. 31, 58
Atl. 958 ; People v. Zimmerman, 102 App. Div. 103, 92 N. Y. Supp. 497 ; People
V. Dycker, 72 App. Dlv. 308, 76 N. Y. Supp. Ill ; State v. Dalton, 22 R. I. 77,
46 AU. 234, 48 L. R. A. 775, 84 Am. St. Rep. 818 ; State v. Dodge, 76 Vt 197,
56 Atl. 983 ; Young y. Commonwealth, 101 Va. 853, 45 S. E. 327 ; Leonard v.
Basslndale, 46 Wash. 301, 89 Pac. 879. See **Con8titutional Law," Dec Dig.
{Key No.) |i 81, 89, 258, 287, 295.
i2oMunn y. Illinois, 94 U. S. 113, 126, 24 L. Ed. 77. And see People y.
Steele, 231 lU. 340, 83 N. B. 236, 14 L. R. A. (N. S.) 361, 121 Am. St Rep. 321,
§ 156) FOUGB FOWKB OF THE 8TATB8. 413
power of the state is limited by the rule that a power to limit or regu-
late is not a power to destroy, and the legislature may not compel such
persons to lend their services without reward, nor can it appropriate
their property for public use except upon compensation made ; neither
can it, in the exercise of this power, establish regulations obviously
and grossly unjust or discriminating.^*^
The class of persons whose business is affected with a public inter-
est clearly includes common carriers. Thus, in consequence of the
public nature of the services performed by railroad companies, the
state has power to regulate the charges they may make for their
services and accommodations, at least in so far as to require that they
shall not be unreasonable in amount.^'* The same rule applies to
companies furnishing gas and electricity to municipal corporations and
their inhabitants,**" and to public-service water and irrigation com-
holding that a business is affected with a public Interest where the one en-
gaged in it is acting under a franchise, or has a virtnal monopoly In It, or
where, from the nature of the business, the one carrying it on is necessarily
entrusted with the property or money of his customers, or where the business
has been conducted In such manner that the public have adapted their business
to the methods used; but the mere fact that licensee are required does not
make the business a public employment Bee "Oonatitutiondl Law^** Dec, Dig.
(Key Ho.) U 81; 88, 89, 2^2; Cent. Dig, % 691.
isi Munn t. Illinois, 94 U. S. 113, 2i L. Ed. T7; Wabash, St L. ft P. R. Ck>.
▼. Illinois, 118 U. S. 557, 7 Sup. Gt 4, 30 L. Ed. 244 ; Western Union TeL Co.
▼. Myatt (G. C.) 98 Fed. 335 ; Central of Georgia R. Co. v. Railroad Commis-
sion of Alabama (C. G.) 161 Fed. 925. See "Constitutional Lata,** Dec. Dig.
{Key No.) H 241, 298; Cent. Dig, f| 101, 847.
i» Smyth T. Ames, 169 U. S. 466, 18 Sup. Ct 418, 42 L. Ed. 819; Chicago, B.
ft Q. R. Co. T. Iowa, 94 U. 8. 155, 24 L. Ed. 94; Dow v. Beldelman, 125 U. S.
680, 8 Sup. Ct 1028, 31 L. Ed. 841. An act prohibiting and punishing "rebat-
ing" is valid and constitutional. United States v. Vacuum Oil Go. CD. C.) 15S
Fed. 536; United States v. Standard Oil Co. (D. C.) 155 Fed. 305. So is a
statute requiring street railway companies to carry school children at half
rates. Commonwealth v. Interstate Consol. St. R. Co., 187 Mass. 436, 73 N.
E. 530, 11 L. R. A. (N. S.) 973. But not one requiring them to transport police-
men free of charge. Wilson v. United Traction Co., 72 App. Dlv. 233, 76 N.
Y. Supp. 208. Nor one requiring them to sell mileage books at reduced rates.
Lake Shore ft H. S. R. Co. v. Smith, 173 U. S. 684, 19 Sup. Gt 565, 43 L. Ed.
858 ; Beardsley v. New York, L. E. ft W. R. Co., 162 N. Y. 230, 56 N. B. 488 ;
SUte V. Great Northern R. Co. (N. D.) 116 N. W. 89. See '^Constitutional
Law:* Dec Dig. {Key No.) fi 241, 242, 298; Cent. Dig. U 691, 701, 847; "Car-
riers:* Deo. Dig. {Key No,) || 12, 26-28; Cent. Dig. i§ 7-20, 67-82.
is> Richman v. Consolidated Gas Co., 114 App. Dlv. 216, 100 N. Y. Supp. 81
(affirmed 186 N. Y. 209, 78 N. E. 871) ; Trustees of Village of Saratoga Springs
▼. Saratoga Gas, Electric Light, Heat ft Power Co., 122 App. Diy. 203, 107 N.
414 THE POLICB POWER. (Ch. 14
p^ies,*** and to telegraph companies,*^" turnpike road companies,***
proprietors of grain elevators which are declared by law to be public
warehouses,**^ public mills, whether for the sawing of lumber or the
grinding of grain,*** and fire insurance companies.*** But the ordi-
nary and common avocations are not within this category ; and even
in respect to those which are distinctly affected with a public interest,
the state has no authority to fix their rates or charges so unreasonably
low as practically to destroy the value of their property; for this is
confiscation, not regulation.*** Rates or charges so fixed are unrea-
sonable if they are below the cost of service, or if they do not permit
the company affected to earn a reasonable income on its capital or
to earn such compensation as, under all the circumstances, is just alike
to it and to the public.*** The reasonableness, from this point of
Y. Supp. 341. See "Constitutional Lato,** Dec. Dig. (Key Tfo,) U 1S5, 24B, 298;
Cent. Dig. ii 380-S87, 691, 8i7.
1S4 Tampa Waterworks Co. ▼. Tampa, 199 U. S. 241, 26 Sap. Gt. 23, 60 L.
Ed. 170 ; Cedar Rapids Water Co. v. Cedar Rapids, 113 Iowa, 234, 91 N. W.
1081 ; San Joaquin & King's River Canal Irrigation Co. v. Stanislaus County
(C. C.) 90 Fed. 516. Bee "Constitutional Law," Dec. Dig. (Key Vo.) %% 185, tJfi,
298; Cent. Dig. %% 380-S87, 691, 847.
125 Western Union Tel. Co. t. Myatt (C. C.) 98 Fed. 335. See *'Constitutional
Law,** Deo. Dig. (Kev No.) |i 135, 242, 298; Cent, Dig. §| 880-887, 691, 847.
126 Covington & L. Turnpike Road Co. y. Sandford, 164 U. S. 578, 17 Sup.
Ct 198, 41 L. Ed. 560. See "Constitutional Law,** Dec. Dig. (Key No.) U 1S5,
242, 298; Cent. Dig. i{ 889-887, 691, 847.
127 Mnnn v. lUlnols, 94 U. S. 118, 24 L. Ed. 77; Budd v. New York, 143 U.
S. 517, 12 Sup. Ct. 468, 36 L. Bd. 247. See "Constitutional Law,** Deo. Dig.
(Key No.) || 242, 298; Cent. Dig. U 691, 847.
128 state y. Edwards, 86 Me. 102, 29 Atl. 947, 25 L. R. A. 504, 41 Am. St
Rep. 52a See "Constitutional Law,** Dec Dig. (Key No.) | ^298; Cent. Dig.
1847.
129 Commonwealth t. Vrooman, 164 Pa. 306, 30 Atl. 217, 25 L. R. A. 250,
44 Am. St Rep. 608. See "Constitutional Law,** Dec. Dig. (Key No.) || 206,
240, 287; Cent. Dig. H 684, 692, 881.
ISO St Lonis ft S. F. R. Co. ▼. GUI, 156 U. S. 649, 15 Sup. Ct 481, 39 L. Ed.
567 ; Smyth y. Ames, 169 U. S. 466, 18 Sup. Ct 418, 42 L. Ed. 819 ; Brooklyn
Union Gas Co. t. City of New York, 50 Misc. Rep. 450, 100 N. Y. Snpp. 670;
Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, 91 N. W. 1081. See
"Constitutional Law,** Dec. Dig. (Key No.) || 185, 242, 298; Cent. Dig. i| 880-
$87, 691, 847.
121 Stanislaus County v. San Joaquin ft K. River Canal ft Irrigation Co., 192
U. S. 201, 24 Sup. Ct 241, 48 L. Ed. 406 ; Minneapolis ft St L. R. Co. t. Minne-
sota, 186 U. S. 257, 22 Sup. Ct 900, 46 L. Ed. 1151 ; Wallace T. Arkansas Cent
R. Co., 118 Fed. 422, 55 a a A. 192 ; Western Union Tel. Co. y. Myatt (a a)
98 Fed. 835 ; Ball T. Rutland B. Co. (a C.) 98 Fed. 513 ; Milwaukee Electrie
§ 165) POUGB POWER OF THE STATES. 415
view, of rates or charges fixed by law is a proper subject of judicial
inquiry, and if it is found that they are unreasonable, the courts have
authority to declare the law invalid, as depriving the persons or com-
panies affected of their property without due process of law.^**
Regulation of Labor.
In regard to the extent to which state interference may rightfully
go in the regulation of labor and industrial employment, the rule de-
ducible from the best authorities must be stated to be this : Any and
all laws may be passed which may be necessary to protect the physical
safety, health, or morals of the classes employed in these pursuits, or
of the general public as affected by them, but beyond this the au-
thority of the state is generally limited by the right of private contract.
To illustrate, a law prohibiting the employment of women and young
children in certain occupations and providing, as to others, that they
shall not be required or allowed to work more than a certain number
of hours per day or per week, is valid and constitutional.*"" As to
Ry. ft Light Co. T. City of Milwaukee {(X C.) 87 Fed. 577. If a railroad com-
pany has bonded its property for an amount that exceeds its fair yalue, or if
its capitalization Is largely fictitious, it may not impose upon the public the
burden of increased rates, necessary to realize profits on such fictitious capi-
talization ; but the basis of all calculations as to the reasonableness of rates
must be the fair value of the property used by the company for the conven-
ience of the public In ascertaining this value, the original co^t of construc-
tion, the amount expended In permanent improvements, the amount and mar-
ket value of its bonds and stock, the present as compared with the original
cost of construction (or what is called the "replacement value" of the plant),
the probable earning capacity of the property under particular rates pre-
scribed by statute, and the sum required to meet operating expenses, are all
matters for consideration, and are to be glren such weight as may be just
and right in each case. Smyth v. Ames, 108 U. B. 46d, 18 Sup. Ct. 418, 42
L. Ed. 819. See ^'Conetiiutional Law,** Deo. Dig. (Key Vo.) %% 125, $42, 298;
Cent. Dig. U S80-S87, 691, 847.
is> St Louis ft 8. F. R. Co. v. Gill, 156 U. S. 649, 16 Sup. Ct 484, 89 L. Ed.
567; Stanislaus County v. San Joaquin ft K. River Canal ft Irrigation Co., 192
U. S. 201, 24 Sup. Ct 241, 46 L. Ed. 406; Southern Pac. Co. v. Board of Rail-
road Com'rs (a C.) 78 Fed. 236 ; City of Madison v. Madison Gas ft Electric
Co., 129 Wis. 249, 106 N. W. 65, 8 L. R. A. (N. S.) 529. See **Con9tUuiUm4a
Law:* Deo. Dig. {Key Vo.) fS 1S5, 242, 298; Cent. Dig. U 380-887, 891, 847.
Its Muller v. State of Oregon, 208 U. S. 412, 28 Sup. Ct 824, 52 L. Ed. 561 ;
In re Considine (a O.) 83 Fed. 157; Ex parte Spencer, 149 Cal. 896, 86 Pac.
896, 117 Am. St R^. 137 ; Commonwealth v. Reinecke Coal Mln. Co., 117 Kj.
885, 79 S. W. 287 ; Commonwealth v. Hamilton Mfg. Co., 120 Mass. 883 ; Wen-
ham V. State, 65 Neb. 894, 91 N. W. 421, 58 K R. A. 825 ; Bryant v. Skillman
Hardware Co. (N. J. Sup.) 69 Atl. 23 ; Stames v. Albion Mffe. Co., 147 N. C.
416 THB POLICE POWER. (CIl 14
these persons, the welfare of society is so intimately connected with
regulations of this kind that there can be no question of their propri-
ety. But as to the power of the legislature to fix the number of hours
which shall constitute a day's labor, in other cases, there are serious
doubts. Where the statute applies to employ6s on railways, such as
train conductors and locomotive engineers, it is easily seen that the
safety of travelers may depend on their not being overworked.^** On
somewhat different principles, but for substantial reasons, the courts
have sustained the validity of statutes limiting ^the hours of labor in
mines, ore mills, and smelters to eight hours a day; ^'* and they have
generally, though with more hesitation and with a good deal of dis-
sent, sanctioned laws making a similar restriction as to the hours of
labor for workmen employed by the government of the United States
and by state and municipal governments and contractors.*** But in
other cases, it is very doubtful whether such laws do not unwarrant-
ably interfere with the right of private contract.*"^
As to the safety and protection of laborers, laws designed for that
566, 61 S. E. 525, 17 L. R. A. (N. S.) 602 ; State t. Baker, 50 Or. 861, 92 Pac.
1076. 18 L. R. A. (N. S.) 1040, 126 Am. St. Rep. 751 ; State v. Shorey, 48 Or.
396, 86 Pac. 881 ; Oommon wealth v. Beatty, 15 Pa. Super. Ct 5 ; State ▼. Bu-
chanan, 29 Wash. 602, 70 Pac. 52, 59 L. R. A. 342, 92 Am. St Rep. 980. Con-
tra, People V. WllllamB, 189 N. T. 131, 81 N. E. 778. 12 Lr. R. A. (N. S.) 1130.
121 Am. St. Rep. 854. See "Constitutional Law,'' Dec Dig, {Key Ho,) |i 88,
89, 275, 276; Cent. Dig. H 157, 164. i65, 848-846.
1S4 In re Ten-Hour Law for St Ry. Corporations, 24 R. I. 608, 64 Atl. 602,
61 L. R. A. 612. See "Constitutional Law,*' Dec. Dig. (Key Ho.) |i 89, 206,
238, 275; Cent. Dig. §i 157, 628, 688-699. 843-846.
i»» Cantwell v. Missouri, 199 U. S. 602, 26 Sup. Ct 749, 50 L. Ed. 329; Hol-
den v. Hardy, 168 U. S. 366, 18 Sup. Ct 383, 42 L. Ed. 780 ; Ex parte Boyce.
27 Nev. 299, 75 Pac. 1, 65 L. Ri A. 47 ; Ex parte Kalr, 28 Nev. 127, 80 Pac
463, 113 Am. St Rep. 817; State v. Livingston Concrete, BIdg. & Mfg. Co.,
34 Mont 670, 87 Pac. 980. Contra, In re Morgan, 26 Colo. 415, 58 Pac. 1071.
47 L. R. A. 52, 77 Am. St Rep. 269. See "Constitutional Law,*' Dec. Dig. (Key
yo.) §§ 89, 206, 238, 275; Cent. Dig. |§ 157, 628, 688-699, 843-846.
136 United States v. Martin, 94 U. S. 400, 24 L. Ed. 128; Atkln T. Kansas,
191 U. S. 207, 24 Sup. Ct 124, 48 L. Ed. 148; In re Btoad, 36 Wash. 440, 78
Pac. 1004, 70 L. R. A. 1011 ; People v. Metz, 193 N. T. 148, 85 N. E. 107b. But
compare People v. Orange County Road Const Co., 175 N. Y. 84, 67 N. B. 129.
65 L. R. A. 33 ; People y. Zimmerman, 58 Misc. Rep. 204, 109 N. Y. Supp. 396 ;
Cleveland y. Clements Bros. Const Co., 67 Ohio St 197, 65 N. E. 885, 59 L.
R. A. 775, 93 Am. St Rep. 670; City of Seattle v. Smyth, 22 Wash. 327, 60
Pac. 1120, 79 Am. St. Rep. 939. See "Constitutional Law,'* Dec. Dig. {Key No.)
§f 89, 238, 275; Cent. Dig. §f 157, 688-699, 843-846.
itT (iochner y. New York, 198 U. S. 45« 25 Sup. Ct 539, 49 L. Bd. 937; In re
§ 166) POUCB POWBB OF THB STATSa 417
purpose have almost invariably been sustained. This is true of stat-
utes prescribing the means and manner of ventilation, of lighting, and
of timbering to be employed in mines, and the precautions to be taken
against injury from explosions.*** And so of laws providing for
prompt medical and surgical care to injured miners/** and laws re-
quiring dangerous machinery to be covered or otherwise made safe,
requiring emery wheels to be provided with blowers to carry oflF the
dust, and the like.*^* And in this connection we may mention the
employer's liability acts recently adopted in many of the states, which
abolish the "fellow servant rule" and make employers liable for in-
juries sustained in their service by their employes even though caused
by the fault or negligence of a co-employe, and which provide that
no contract restricting such statutory liability shall be legal or binding.
These statutes have been sustained with practical unanimity.*^*
Elgh^Ho^r Bill, 21 Colo. 29, 80 Pac. 3^ See **Oi>nsUtutional Law,** Dec. Dig.
{Key No.) i| 89, 206, 238, 275; Cent. Dig. H 157, SSS, 6S8-699, 84S--846.
ist Ck>mmon wealth v. Bonnell, 8 Phlla. (Pa.) 534; Chandler Coal Co. ▼.
Sams, 170 Ind. 623, 85 N. E. 341 ; State v. Mnrlln, 137 Bfo. 297, 38 S. W. 923 ;
Davis Coal Co. v. Polland, 168 Ind. 607, 62 N. E. 492, 92 Am. St Rep. 819 ;
In re Wllllama, 79 Kan. 212, 96 Pac. 777. See "Coiuftitutional Law,** Dec Dig.
{Key No.) U 89, 208, 2iO; Cent. Dig. H 157, 654, 688-S99.
ist Read y. Clearfield County, 12 Pa. Super. Ct. 419. See "Conetitutionat
Law,** Dec. Dig. (Key No.) f 205.
i40People V. Smith, 106 Mich. 527, 66 N. W. 382, 32 L. R. A. 853, 62 Am. St
Rep. 716. See ^^'Constitutional Law,** Dec. Dig. (Key No.) I 208; Cent. Dig.
1654.
141 Minnesota Iron Co. y. Kline, 199 U. S. 593, 26 Sup. Ct 159, 50 L. E3d.
322 ; St LoulB Merchants Bridge Terminal R. Co. y. Callahan, 194 U. S. 628^
24 Sup. Ct 857, 48 L. Ed. 1157 ; Tullls y. Lake Erie ft W. R. Co., 175 U. S.
318, 20 Snp. Ot 136, 44 L. Ed. 192 ; United States y. Adair (D. C.) 152 Fed.
737; Snead y. Central of Georgia R. Co. (C. C.) 151 Fed. 608; Kane y. Erie
R. Co., 188 Fed. 681, 67 a C. A. 653, 68 L. R. A. 788 ; Rio Grande Sampling
Co. y. Catlln, 40 Colo. 450, 94 Pac. 323; Vindicator Consol. Gold MIn. Co. y.
Flrstbrook, 36 Colo. 498, 86 Pac. 313 ; Atlantic Coast Line R. Co. y. Beazley,
54 Fla. 311, 45 South. 761 ; Pittsburgh, C, C. ft St L. R. Co. y. Llghtheiser,
168 Ind. 438, 78 N. B. 1033 ; Indianapolis Union Ry. Co. y. Houlihan, 157 Ind.
494, 60 N. E. 943, 54 L. R. A. 787 ; Pittsburgh, C, C. ft St L. R. Co. y. Hosea.
152 Ind. 412, 53 N. S. 419 ; McGnlre y. Chicago, B. ft Q. R. Co., 131 Iowa, 340,
108 N. W. 902 ; Mumford y. Chicago, R. I. ft P. R. Co., 128 Iowa, 685, 104 N.
W. 1135 ; Mobile, J. ft K. a R. Co. y. Hicks, 91 Miss. 278, 46 South. 360, 124
Am. St Rep. 679 ; Bradford Const Co. y. Heflln, 88 Miss. 314, 42 South. 174 ;
Powell y. Sherwood, 162 Mo. 605, 63 S. W. 485 ; Hancoclc y. Norfollc ft W. Ry.
Co., 124 N. a 222, 32 S. E. 679; Galyeston, H. ft S. A. R. Co. y. Gibson (Tex.
Cly. App.) 64 & W. 779; Indianapolis Traction ft Terminal Co. y. Kinney, 171
Bl.Con8T.L.(8d.Ed.) — ^27
418 THE POhICK POWER. (Ch. 14
As to the wages of labor, it is not competent for the state to pre-
scribe a fixed or minimum rate of payment,**^ though it may prohibit
the garnishment of wages or the assignment of wages to become
due.^*" A statute requiring all coiporations, or certain classes of cor-
porations, to pay their employes at stated intervals, as once a week
or once a fortnight, is unconstitutional.^** And so is a law which
forbids the deduction from wages of any drjiwback for work spoil-
ed,**' although it seems that an employer discharging a workman be-
fore pay-day may be forbidden to deduct anything from the wages
due on account of pa)mient being made before the contract time.***
A law forbidding corporations to pay the wages of their employes
in store orders or in scrip or in checks redeemable in goods or mer-
chandise, is also invalid as an interference with the right of contract.**^
Ind. 612, 85 N. E. 954. See ^^Constitutional Law,** Dec. Dig. (Key No.) t tkS;
Cent. Dig. % 702.
142 People V. Coler, 166 N. Y. 1, 59 N. B. 716, 52 L. R. A. 814, 42 Am. St.
Rep. 605 ; Street v. Vamey Electrical Supply Ck>., 160 Ind. 338, 66 N. E. 895^
61 L. R. A. 154, 98 Am. St. Rep. 325. See ^'Constitutional Law,** Dec. Dig.
(Key No.) U 89, 208; Cent. Dig. i| 167, 655.
148 InternatioDal Text-Book Co. y. Weissinger, 160 Ind. 349, 65 N. E. 521,.
65 L. R. A. 599, 98 Am. St Rep. 334. Compare In re Flukes, 157 Mo. 125, 57
S. W. 545, 51 L. R. A. 176, 80 Am. &t. Rep. 619. See ''Constitutional Law,'*
Dec Dig. {Key No.) || 2i9, 275; Cent. Dig. % 710. '
144 Bracevllle Coal Co. v. People, 147 111. 66, 35 N. E. 62, 22 L. R. A. 340,.
37 Am. St Rep. 206 ; Skinner v. Oamett Gold Min. Co. (C. C.) 96 Fed. 735 ;
Johnson y. Goodyear Min. Co., 127 Cal. 4. 59 Pac. 304, 47 L. R. A. 838, 78 Am.
St Rep. 17; Toledo, St L. ft W. R. Co. y. Long, 169 Ind. 316, 82 N. EX 757^
124 Am. St Rep. 226; Republic Iron ft Steel Co. y. State, 160 Ind. 379, 66 N.
E. 1005, 62 L. R. A. 136. But compare State y. Brown ft Sharpe Mfg. Co., 18^
R I. 16, 25 Atl. 246, 17 L. R. A. 856 ; SeeleyyiUe Coal ft Mining Co. y. Mc-
Glosson, 166 Ind. 561, 77 N. E. 1044, 117 Am. St Rep. 396; Lawrence y. Rut-
land R. Co., 80 Vt 370, 67 Atl. 1091, 16 L. R A. (N. S.) 350 ; New York Cent
ft H. R. R Co. y. Williams, 64 Misc. Rep. 15» 118 N. Y. Supp. 785. See "Con-
stitutional Law,** Dec. Dig. {Key No.) {{ 238, 275; Cent. Dig. | 690.
145 Commonwealth y. Perry, 155 Mass. 117, 28 N. E. 1126, 14 L. R. A. 325,
81 Am. St Rep. 538. See "Constitutional Law," Deo. Dig. (Key No.) t 87 r
Cent. Dig. § 169.
i4« St Louis, I. M. ft S. R. Co. y. Paul, 173 U. S. 404, 19 Sup. Ot 419, 43 L.
Bd. 746. See "Constitutional Law,** Dec Dig. (Key No.) { 2S8.
14T Frorer y. People, 141 111. 171, 81 N. El 395, 16 L. R. A. 492; Hancock y^
Yaden, 121 Ind. 306, 23 N. E. 253, 6 L. R. A. 576, 16 Am. St Rep. 896 ; State
y. Haun, 61 Kan. 146, 59 Pac. 340, 47 L. R A. 369 ; State y. Loomis, 115 Mxk
807, 22 S. W. 350, 21 L. R. A. 789 ; Leach y. Missouri Tie ft Timber Co., Ill
Mo. App. 650, 86 S. W. 579 ; Goodcharles y. Wigeman, 113 Pa. 431, 6 Atl. 354 ^
Jordan y. State, 51 Tex. 581, 103 S. W. 633» 11 L. R. A. (N. S.) 608; State y.
§ 155) POLICE POWER OF THE STATES. 419
And for similar reasons, laws providing that, in all cases where miners
are paid on the basis of coal mined, the coal should be weighed on the
pit cars before being screened, and the compensation should be com-
puted on the weight of the unscreened coal, were at first generally
held invalid,**' although more recently the weight of judicial opinion
has inclined in the other direction.*** In several states laws were
at one time enacted providing that agricultural laborers who should
leave the land or abandon work on it, contrary to contract, should be
guilty of a misdemeanor. But these statutes were condemned by the
courts, not only as being class legislation and unlawfully restricting
the right of contract, but also as establishing a species of peonage
hardly distinguishable from slavery.***
Same — Unionism, Strikes, and Boycotts.
It is the policy of the law in this country that labor and employ-
ment shall be free and that employers and employes shall be at lib-
erty to make their own contracts without restraint or compulsion. An
employer has the legal right to hire whomsoever he will, and con-
versely no laborer or workman can be compelled to enter the service
of any one, but has the absolute right to refuse his services to any
employer with or without reasons.*'* Trades unions and other sim-
Goodwill, 33 W. Va. 179, 10 S. E. 285. 6 L. R. A. 621, 25 Am. St Rep. 863.
But compare Knoxville Iron Co. y. Harbison, 183 U. S. 13, 22 Sup. Ct 1, 46
L. Ed. 55 ; Shortall ▼. Puget Sound Bridge & Dredging Co., 45 Wash. 290, 8S
Pac. 212, 122 Am. St. Rep. 899. See "Constitutional Laio," Dec. Dig, (Key No.)
if 87, 2S8, 275; Cent. Dig. 1 169.
i«« Ramsey ▼. People, 142 111. 380, 32 N. E. 364, 17 L. R. A. 858; In re Pres-
ton. 63 Ohio St. 428, 59 N. E. 101, 52 L. R. A. 523, 81 Am. St Rep. 642 ; Gom-
monwealth y. Brown, 8 Pa. Super. Ct 339. Bee ^'Constitutional Law,*' Dec
Dig. {Key No.) If 89, 275; Cent. Dig. f 157.
14* McLean y. State, 81 Ark. 304. 98 S. W. 729, 126 Am. St Rep. 1037 ; Wood-
son y. State, 69 Ark. 521, 65 S. W. 465 ; State y. Wilson, 61 Kan. 32, 58 Pac.
981, 47 L. R. A. 71. See ''Constitutional Law,'* Dec. Dig. (Key No.) ff 89, 275;
Cent. Dig. f 1S7.
ISO Peonage Cases (D. C.) 123 Fed. 671; Toney y. State, 141 Ala. 120, 37
South. 332, 67 L. R. A. 286, 109 Am. St Rep. 23 ; Ex parte Hollman, 79 S. a
9, 60 8. B. 19, 21 L. R. A. (N. S.) 242. Note the curious parallel between these
statutes and the early B^ngllsh "statutes of laborers," dating as far back as
the reign of Edward III, A. D. 1349. See "Constitutional Law," Dec. Dig,
(Key No.) ff 82, 8S, 206, 208, 211, 2S8, 250; "Slaves,** Deo. Dig. (Key No.) f
24; Cent. Dig. f 113.
Hi A. R. Barnes A Co. y. Berry (C. O.) 156 Fed. 72; In re Parrott (a C)
1 Fed. 481 ; Erdman y. Mitchell, 207 Pa. 79, 56 Atl. 327, 68 L. R. A. 534, 99
Am. St Rep. 783; Mathews y. People, 202 lU. 380, 67N.fi.28,63L.B.A.78,
420 THB POLICE POWBR. (Ch. 14
ilar associations of workingmen, formed for the purpose of protect-
ing their interests, ameliorating their condition, maintaining a standard
of efficiency, and regelating wages, are perfectly lawful organiza-
tions and do not come under the denouncement of the law so long as
they confine their activities to peaceable and legal measures, but
on the contrary have obtained the sanction and approval both of the
law and of the courts.^'* But these organizations are entitled to no
special privileges or exemptions, and must be amenable to the same
laws which govern the community generally. A labor union may be
so operated as to constitute a "trust" or monopoly, or an attempt to
create one, or a combination or conspiracy in restraint of trade, and
may so become liable to the injunctive process of the courts or to the
animadversion of the criminal laws.*** For this reason the courts
have generally held that statutes prohibiting and penalizing pools,
trusts, and other monopolistic combinations in restraint of trade and
commerce, but excepting labor unions and other associations of work-
ingmen, are to that extent unconstitutional and void.*** So also, in
several states, laws have been enacted making it unlawful, or even a
misdemeanor, for any employer to discharge a workman because of
the latter's membership in a labor union, or to force an employe in-
to an agreement not to become a member of such an organization, as
d5 Am. St Rep. 241; Locker v. American Tobacco Co., 121 App. Dlv. 443, 106
N. Y. Supp. 115 ; Rogers v. E^varts (Sup.) 17 N. Y. Supp. 264. See ^^Conatitu-
tional Law^'' Dec. Dig. (Key No.) || 58, 89, 238; ** Monopolies,'* Deo. Dig. (Key
No.) § 12; ''Trade Unions:* Dec Dig. (Key No.) U 5, 8.
iM Ooeur lyAlepe Ck)nsoIidated St Mining Co. ▼. Mluers' Union of Wardner
(O. a) 51 Fed. 260, 19 L. R. A. 382 ; Regina v. Draltt, 10 Ck>z Cr. Cas. 600 ;
Winner v. SUverman, 109 Md. 341, 71 Atl. 962. See English Trade-Union Act,
St. 84 & 35 Vict c. 31. In some states laws have been passed (and held valid)
for the registration of union labels and prohibiting the counterfeiting of such
labels. Bee Perkins v. Heert, 158 N. Y. 306, 53 N. E. 18, 43 L. R. A. 858, 70
Am. SL Rep. 483 ; Commonwealth v. Norton, 16 Pa. Super. Ct 423. See ''Con-
stiiutional Law:* Dec. Dig. (Key No.) §{ 88, 205, 208; Gent. Dig. § 652; ''Mo-
nopolies:* Dec. Dig. (Key No.) | 12; '^Trade-Marks and Trade-Names,** Dec
Dig. (Key No.) || 22, 24, 25, 42; "Trade Unions,** Dec. Dig. (Key No.) §| 5, 8.
iss Loewe t. Lawlor, 208 U. S. 274, 28 Sup. Gt 301, 52 L. Ed. 488; Casey v.
Cincinnati Typographical Union No. 3 (C. C.) 45 Fed. 135, 12 L. R. A. 193 ;
CJoeur D'Alene Consolidated & Mining Co. v. Miners' Union of Wardner (Cw C.)
51 Fed. 260 ; Toledo, A. A. & N. M. R. CJo. v. Pennsylvania Co. (C. C.) 54 Fed.
730, 19 L. R. A. 387. See "Monopolies:* Dec Dig. (Key No.) §| 12, U; Cent.
Dig. I 10; "Injunction,** Dec Dig. (Key No.) | 101; Cent. Dig. § 174.
1B4 Niagara Fire Ins. Co. v. (Cornell (C. C.) 110 Fed. 816; People v. Butler
St Foundry & Iron Co., 201 lU. 236, 66 N. E. 349 ; Chicago, W. & V. 0>al Co.
§ 166) POLIOS POWBB OF THB STATES. 421
a condition upon his obtaining or retaining employment. But these
laws have been adjudged invalid, as interfering with personal liberty
and freedom of contract, and as denying the equal protection of the
laws and granting special privileges.^** And the same is true of laws
and ordinances requiring that all public printing or all work on public
buildings or municipal improvements shall be done by union labor.^**
A labor union, like its individual members, has the right to quit work,
for its own reasons, provided this course is not adopted as a coercive
measure to force others to commit tmlawful or criminal acts.^*^ But
strikes and boycotts, whether instigated and managed by trades unions
or by combinations of individuals not belonging to such bodies, and
whether intended to raise wages, compel recognition of the unions, or
for other purposes, are illegal if accompanied by or resulting in any
trespass upon the rights or the property of others, or operated by
means of violence, threats, or any coercive measures, and may be en-
joined or punished as criminal conspiracies, according to the local
law.*** Conversely, employers have no legal right to blacklist dis-
y. People, 114 IlL App. 75, affirmed, 214 IlL 421, 7S N. B. 7?0. Bat compare
Cleland ▼. Anderson, 66 Neb. 252, 92 N. W. 906, 5 L. R. A. (N. S.) 1S6 ; Waters-
Pierce OU Co. y. State (Tex. Cly. App.) 106 S. W. 9ia And see Rohlf y. Kase-
meler (Iowa) 118 N. W. 276, holding that a statute prohibiting trusts must not
be constmed to apply to combinations to ilx wages of labor, unless it clearly
appears that such was the legislatiye intent Bee **Oon8tUutional Latp,*' Dec.
Dig. (Key No,) | 208; **Monopolie9,'* Dea Dig. {Key Ho.) 1 12; ^'Statutes:* Dec
Dig. (Key No.) R 181, m, 241.
iss Adair y. United States, 208 U. S. 161, 28 Sap. Ot 277, 62 L. E)d. 486;
Gk>ldi!eld Oonsol. Mines €k>. y. Ck>ldfleld BClners' Union No. 220 (C. C.) 150 Fed.
600; Gillespie y. People, 188 111. 176, 68 N. B. 1007, 62 L. R. A. 283, 80 Am. St
Rep. 176 ; Coffeyyille Vitrifled Brick & Tile Go. y. Perry, 69 Kan. 297, 76 Pac
848, 66 L. R. A. 185; People y. Marcus, 186 N. Y. 257, 77 N. B. 1073, 7 L. R.
A. (N. S.) 282, 113 Am. St Rep. 902; State y. Krentzberg, 114 Wis. 530, 90
N. W. 1098, 68 L. R. A. 748, 91 Am. St Rep. 984. See '*Constituiional Law,'*
Dec Dig. (Key No.) || 89, £75; OetU. Dig. §| i57, 84S^i6.
!•« riske y. People, 188 111. 206, 68 N. B. 985, 62 L. R. A. 291 ; Marshall &
Brace Co. y. Nashyille, 109 Tenn. 486, 71 8. W. 816; Miller y. C!ity of Des
Moines (Iowa) 122 N. W. 226. See ^'OonetUutiondl how!" Dec Dig. (Key No.)
H 88, 89; Cent. Dig. ff 157, m, 165.
117 Erdman y. MitcheU, 207 Pa. 79, 66 AU. 827, 68 L. R. A. 634, 99 Am. St
Rep. 783; a>oledo^ A. A. & N. M. R. Ck>. y. Pennaylyania (3o. (O. O.) 64 Fed.
780, 787, 19 I* R. A. 387, Taft, J. See *'ConetUutiondl Law,*" Dec Dig. {Key
No.) { 88; Cent. Dig. |f 164, 165; 'Vompiraoy;' Dec Dig. (Key No.) § 8; Ceni.
Dig. 1 10.
!•• Rex y. Jonin^men Tailors ef Cambridge, a Mod. 10; State y. Donald-
sen. 82 N. J. Law, 161. 90 Am. Dec 649; Crump's Case, 84 Va. 927, 6 8. B.
•t
422 THE POLICE POWER. (Ch. 14
charged employes, or to combine together to prevent such employes
from obtaining work, and statutes forbidding them to do so are not
unconstitutional.*"'
Regulation of Use and Improvement of Property,
The police power of the state over private property and the use
and enjoyment of it is based on the principle that no one may so use
his own as to injure others, and that all owners may be restricted or
controlled so far as may be necessary for the protection of the public
safety, health and comfort.**** Thus, the use of property for carry-
ing on noxious, offensive, or dangerous trades may be prohibited or
620, 10 Am. St Rep. S»5 ; State v. Stewart, 59 Vt. 273. 9 Atl. 559, 59 Am. Rep.
710; Casey v. Cincinnati Typographical Union No. 3 (C. C.) 45 Fed. 135, 12
L. R. A. 193 ; Toledo, A. A. & N. M. R. Go. v. Pennsylvania Co. (C. C.) 54 Fed.
730, 19 L. R. A. 387 ; Walker v. Cronln, 107 Mass, 555 ; State v. GUdden, 55
Conn. 46, 8 Atl. 890, 3 Am. St. Rep. 23 ; Carew v. Rutherford, 106 Mass. 1,
8 Am. Rep. 287; Moores & Co. v. Bricklayers' Union, 23 WTsly. Law Bui.
(Ohio) 48 ; People v. Wilzlg, 4 N. Y. Cr. R. 403 ; People v. Kostka. Id. 429 ;
Coeur lyAlene Consolidated & Mining Co. v. Miners' Union of Wardner (C. C.)
51 Fed. 260, 19 L. R. A. 382 ; Sherry v. Perkins, 147 Mass. 212, 17 N. E. 307,
9 Am. St. Rep. 689; Commonwealth v. Hunt, 4 Mete. (Mass.) 131; Old Domin-
ion S. S. Co. V. McKenna (C. C.) 30 Fed. 48; Commonwealth v. Curren, 3
Pittsb. (Pa.) 143 ; In re Hlgglns (C. C.) 27 Fed. 444 ; Rogers v. Evarts (Sup.)
17 N. Y. Supp. 264; United States v. Kane (C. C.) 23 Fed. 748; Bllndell v.
Hagan (C. C.) 54 Fed. 40; Jordahl v. Hayda, 1 Cal. App. 606, 82 Pac. 1079;
Mathews v. People. 202 111. 389. 67 N. E. 28, 63 L. R. A. 73, 95 Am. St. Rep.
241 ; Iron Molders' Union v. Allls-Chalmers Co.. 166 Fed. 45, 91 C. C. A. 631.
20 L. R. A. (N. S.) 315; Jones t. Maher, 62 Misc. Rep. 388, 116 N. Y. Supp. 180.
But see Marx & Haas Jeans Clothing Co, v. Watson, 168 Mo. 133. 67 S.
W. 391, 56 L. R. A. 951, 90 Am. St. Rep. 440. £fee "Constitutional Lnw,** Dec.
Dip. (Key No,) f§ 88, 89; Cent. Dig, |§ 157, 16i, 165; "Conspiracy,** Dec.
Dig, {Key No,) f| 8, SO; Cent, Dig. if 7-iJ, 53^7; "Injunction^ Dec Dig.
(Key No.) § 101; Cent. Dig. || 174, i75; "Master and Servant,** Dec, Dig, (Key
No.) §§ 15, 29, SS6-SIi5; Cent. Dig, f§ 28, 29, 1281-1289.
i8» State V. Justus, 85 Minn. 279, 88 N. W. 759, 89 Am. St. Rep. 550; Joyce
r. Great Northern R. Co., 100 Minn. 225, 110 N. W. 975, 8 L. R. A. (X. S.) 756.
See "Constitutional Law,** Dec Dig, (Key No.) §§ 208, 274; Cent. Dig. §§ 651,
654, 726; "Conspiracy,'' Dec Dig. (Key No.) § 8; Cent. Dig. §§ 7-11; "Torts,*'
Dec, Dig. (Key No,) { 10; Cent, Dig, f 10.
leo Plumas County v. Wheeler, 149 Cal. 758, 87 Pac. 909; City of Belleville
r, St Clair County Turnpike Co., 234 111. 428, 84 N. E. 1049, 17 L. R. A. (N.
S.) 1071 ; People v. Steele, 231 111. 340, 83 N. E. 236, 14 L. R. A. (N. S.) 361,
121 Am. St. Rep. 321 ; Horan v. Byrnes, 72 N. H. 93, 54 Atl. 945, 62 L. B. A.
602, 101 Am. St. Rep. 670 ; State v. Whitlock, 149 N. C. 542, 63 S. E. 123 128
Am. St Rep. 670. See "Constitutionaljjaw;* Dec. Dig. (Key No,) { 81; Cent.
Dig. i 148.
§ 156) POLICE POWER OF THE STATES. 423
regulated; the management and disposition of property belonging to
infants, lunatics, and persons under other disabilities may be the sub-
ject of legislative action ; ^'^ laws may be enacted for the better and
more economical management of the lands of adjoining owners where
such property can be better improved by some joint operation, such as
laws regulating the drainage or reclamation of such lands, or the con-
struction of ditches and sewers, partition fences, and party walls ; ^•^
milling companies may be authorized to overflow the lands of upper
riparian proprietors, by the construction of their dams and other
works, on paying proper compensation ; ^'^ and the owners of city
property may be required to remove the ice and snow from the side-
walks in front of their houses.^** To the same category belong the
building regulations in many of our cities and states. These often go
into gfeat minuteness of detail, and furnish an illustration of the close-
ness with which public authorities may scrutinize private operations
in the interest of the public safety and health. Such laws may regu-
late the height of buildings or prescribe a maximum height, either
absolutely or in proportion to the width of the street ; and they may
also regulate all such matters as the thickness and strength of the
walls, drainage and sewer connections, character of the plumbing,
proper disposition of appliances for heating and lighting, elevators,
skylights, fire-escapes, the number and character of exits in theatres
!•! Brevoort v. Grace, 53 N. Y. 245; Bice v. Parkman, 16 Mass. 326. See
•^Canstitutional Lawr Dec. Dig. (Key No,) §| 54. 9S; Cent. Dig. §§57, 190.
161 Wurts V. Hoagland, 114 U. S. 606, 5 Sup. Ct. 1086, 29 L. Ed. 229; Coster
V. Tide-Water Co., 18 N. J. Eq. 54 ; Turner v. Nye, 154 Mass. 579. 28 N. B.
1048, 14 li. R. A. 487. But compare Wllkins ▼. Jewett, 139 Mass. 29, 29 N. E.
214. Bee 'Vonatitutional Law^ Dec. Dig. (Key No.) §§ 294, 299 ; Cent Dig.
H 811, S52.
i«s Head ▼. Amoskeag Mfg. Co.. 113 U. S. 9, 5 Sup. Ct 441. 28 L. Ed. 889.
See **ConstituUonal Law:' Dec. Dig. (Key No.) § 280; Cent. Dig. § 88S.
!•♦ In re Goddard, 16 Pick. (Mass.) 504, 28 Am. Dec. 259 ; State v. McCrilUs,
28 R. I. 165, 66 Atl. 301. 9 L. R. A. (N. S.) 635 ; State v. McMahon, 76 Conn.
97, 55 Ati. 591 ; City of Helena ▼. Kent, 32 Mont. 279, 80 Pac. 258 ; VlHage of
Carthage v. Frederick, 122 N. Y. 268, 25 N. B. 480, 10 Ij. R. A. 17a 19 Am.
St Rep. 490 ; Moran t. New York, 98 App. Dlv. 301, 90 N. Y. Supp. 596 ; City
of New York y. Brown, 27 Misc. Rep. 218, 57 N. Y. Supp. 742. But such laws
haye been held yold In City of Chicago y. McDonald, 111 111. App. 436 ; Mc-
Gulre y. District of Columbia, 24 App. D. C. 22 ; Holtzman y. United States, 14
App. D. C. 454 ; Grldley y. City of Bloomlngton, 88 111. 554, 30 Am. R^. 566 ;
City of Chicago y. O'Brien. Ill III. 532, 53 Am. Rep. 640 ; State y. Jackman,
69 N. H« 318» 41 Atl. 347. 42 L. R. A. 438. See ^'Municipal Corporatiane," Dec
Dig, (Key No.) f 617; Cent. Dig. § U56.
424 THE POLICE POWBB. (Ch. 14
and public halls, signs on shops, piazzas and balomies, and other
matters ; and their constitutional validity has almost always been sus-
tained.*** But such regulations are not valid when, aside from any
relation to the public safety, they have only an artistic or aesthetic
purpose, as, to make all buildings in a given locality conform to the
same general plan or architectural design or to prevent the erection
of unsightly or unsymmetrical structures.*** On the same principle, a
municipality may, under the police power, regelate the height of bill-
boards and advertising signs, prohibit the erection of such as would
be insecure, and take measures against the exhibition on any bill-
boards of immoral or indecent pictures or advertisements, and pro-
tect the community from any actual nuisance resulting from the use of
them;**^ but it cannot forbid citizens to erect bill-boards or signs
161 People ▼. lyOencfa, 111 N. Y. 359, 18 N. E. 9S2; Johnson y. Shelter
Island Grove & Camp-Meeting Ass'n, 122 N. Y. 336, 25 N. E3. 4S4 ; Fire Dept
of New York v. AUas S. S. Co., 106 N. Y. 566, 13 N. B. 329 ; McRlckard y.
Flint, 114 N. Y. 222, 21 N. E. 153 ; Welch v. Swasey, 193 Mass. 364, 79 N. E.
745, 118 Am. St Rep. 523; Cochran ▼. Preston, 106 Md. 220, 70 Atl. 113;
Town of Montclair t. Amend (N. J. Sup.) 68 Atl. 1067 ; Fellows y. Charleston,
62 W. Va. 665, 59 S. E. 623, 13 L. R. A. (N. S.) 737, 125 Am. St Rep. 990; City
of Marion y. Robertson, 84 111. App. 113; Commonwealth y. La Bar, 6 Lack.
Leg. N. (Pa.) 229; Halpine y. Barr. 21 D. C. 331. Bnt compare Tilford y. Bel-
knap, 326 Ky. 244, 103 S. W. 289, 31 Ky. Law Rep. 662, 11 L. R. A. (N. S.)
706 ; Malone y. Williams, 118 Tenn. 390, 103 S. W. 798, 121 Am. St Rep. 1002.
In so far as building regulations apply to theatres, hotels, apartment houses,
stores, and other places of public resort, their just relation to the public safe-
ty is very apparent But when applied to the construction. Interior arrange-
ment, and repair of strictly private residences, their validity is open to very
serious question. '*Tlie public" can have very little concern with the arrange-
ments which a citizen chooses to make for his own home, and official interfere
ence in such matters is repugnant to the spirit and the principles of freedom,
and is capable of degenerating into an odious form of petty tyranny. See
Harvey v. City of Elkins, 65 W. Va. 305, 64 & El 247; Lantry v. Mede, 194 N.
Y. 544, 87 N: E. 1121. See ^^Constitutional L<Hl^*' Dec Dig. (Key No.) f 212;
Cent. Dig. |{ 684, ^05; "Municipal Corporationa,"* Dec Dig. (fi.ey No.) {{ 595,
601, 603; Cent. Dig. §{ 1S21, 1322, 1333, 133k.
i«« Welch y. Swasey, 193 Mass. 364, 79 X. E. 745, 118 Am. St Rep. 523 ; Com-
monwealth y. Boston Advertising Co., 188 Mass. 348, 74 N. E. 601, 69 L. R. A.
817, 108 Am. St Rep. 494 ; Bostock y. Sams, 95 Md. 400, 52 AtL 665, 59 L. R.
A. 282, 93 Am. St Rep. 394. Bee '^Constitutional Law,'' Dec. Dig. {Key No.)
§§ 81, 212; Cent. Dig. f{ U8, 684, 705; '^Municipal Corporations,'' Dec Dig,
(Key No.) | 601; Cent. Dig. | 1333.
laTin re Wilshire (C. C.) 103 Fed. 620; Passaic v. Paterson Bill-Posting,
Advertising ft Sign Painting Co., 71 N. J. Law, 75. 58 Atl. 343 ; City of Roches-
ter y. West, 31 App. Div. 635, 53 N. Y. Supp. 1101, s. c, 164 N. Y. 510, 68 N.
§ 166) POUG8 POWER OF THS 8TATXS. 426
on their own premises merely because they may be ugly or unpleas*
ing.*"
Laws Against Proud and Oppression.
The protection of the whole community, or of classes of individu-
als, against fraud, overreaching, and oppression, is a legitimate de-
partment of the police power. Historically this is shown by the old
market laws, against engrossing and forestalling, and the criminal laws
against fraud and conspiracy which have always existed; and the-
oretically it is justified by the consideration that one of the func-
tions of the state is to protect all citizens in the equal enjoyment of
their rights.^** And it is to this head that we must refer the laws for
the protection of infants, married women, lunatics, and seamen, in
their business dealings. But no such power is applicable to the con-
tracts and employment of laboring men, merely as such, as has been
already shown. Usury laws proceed upon the theory that the lender
and the borrower of money do not occupy the same relations of equal-
ity that parties do in contracting with each other in respect to other
matters, and that the borrower's necessities deprive him of freedom
in contracting and place him at the mercy of the lender.*^* On the
same general principle are to be considered the statutes regulating
dealings in patent rights, those providing for the inspection of goods
intended for sale or export,*^* those for the inspection and regula-
tion of weights and measures,^ ^' those regulating the weight of
bread,^^* ordinances requiring hay and coal to be weighed on public
B. 673, 68 L. R. A. 648, 79 Am. St Rep. 659. But compare People ▼. Murphy,
129 App. Diy. 260, 113 N. T. Supp. 866w Bee **MutUcipal CorponUions,'' Deo.
Dig. (Key yo.) if 698, 602.
i«s Bryan t. Chester, 212 Pa. 259, 61 Atl. 894, 108 Am. St Rep. 870; City
of Chicago Y. Gunning System. 214 lU. 628, 73 N. E. 1035^ 70 L. R. A. 230;
People y. Mnn^y, 196 N. Y. 126, 88 N. E. 17, 21 L. R. A. (N. S.) 786. See ''Afti-
wMpal Corporations,** Dec. Dig. (Key No.) H 600-S02, 605.
i«» Bazemore t. State, 121 6a. 619, 49 S. E. 701 ; State v. Mlasonri Guaran-
tee Say. A Bldg. AM'n, 167 Mo. 489, 67 S. W. 216, 90 Am. St Rep. 426. See
Conatituiional Law,** Dec Dig. (Key yo.) §| 81, 296; Cent. Dig. |{ U8, 825-846.
iToFrorer y. People, 141 111. 171, 31 N. B. 396, 16 L. R. A. 492. See '^Consti-
tutional Law,** Dec, Dig. {Key No.) { 296; Cent. Dig. § 845.
IT 1 Turner y. Maryland, 107 U. S. 88^ 2 Sup. Ct 44, 27 L. Ed. 370. Bee
**Commeroer Dec Dig. {Key yo.) H 50, 52; Cent. Dig. H 51, 62.
ITS Ritchie y. Boynton, 114 Mass. 431. See '*WeighU and Measures,** Dec
Dig. (ICey yo.) %9; Cent. Dig. § 11.
lYt aty of MohUe y. YulUe^ 3 Ala. 137, 86 Am. Dec 44L Hot see Buffalo
426 THE POLICE POWER. (Ch. 14
scales or by public weighers/^* laws regulating the business of money
brokers,*'* fixing the standard of purity for "Sterling silver," and
prohibiting the sale of imitations under that name,*'* and securing
' to manufacturers of sparkling or aerated waters the exclusive use of
their stamped bottles."' On this ground also the courts of some of
the states have sustained the "bulk sales laws," which provide that
the sale of a stock of merchandise in bulk shall be void as against
creditors of the vendor unless they have a certain number of days'
notice thereof.*'*
Same — Monopolies, Trusts, and Restraint of Trade.
Trusts, monopolies, corners, engrossing of the market, and all other
combinations in restraint of trade or intended to stifle competition or
raise prices are unlawful at common law and contrary to public in-
terest and public policy, and laws intended to prevent, prohibit, or
punish them are within the proper scope of the police power.*'* Hav-
V. Collins Baking Co., 24 Misc. Rep. 745, 53 N. T. Supp. 968. See ''Conetitw-
tional Laic,*' Dec. Dig. (Key No.) { 70; Cent. Dig. § ISl.
IT 4 Stokes V. City of New York, 14 Wend. (N. Y.) 87; Yates v. City of Mil-
waukee, 12 Wis. 673. See **W eights and Measures,'* Dec. Dig. (Key No.) % 1;
'^Municipal Corporations,'' Cent. Dig. % 1360.
iT5in re Home Discount Co. (D. C.) 147 Fed. 538. See '^Constitutional
Law," Dec. Dig. (Key No.) | 208.
i7« People V. Webster, 17 Misc. Rep. 410, 40 N. Y. Supp. 1135. See **Con'
stitutional Law," Dec. Dig. (Key No.) S 296.
17 T People V. Cannon, 139 N. Y. 82, 34 N. E. 759, 36 Am. St Rep. 668. See
^'Constitutional Load," Dec. Dig. (Key No.) { 296; Cent. Dig. § 826.
178 Young V. Lemieux, 79 Conn. 434, 65 Atl. 436, 20 L. R. A. (N. S.) 160;
Walp V. Mooar, 76 Conn. 515, 57 Atl. 277 ; Jaques St Tinsley Co. ▼. Carstar-
phen Warehouse Co., 131 Ga. 1, 62 S. E. 82; Musselman Grocer Co. t. Kidd.
Dater & Price Co., 151 Mich. 478, 115 N. W. 409 ; Spurr v. Travis, 145 Mich.
721, 108 N. W. 1090, 116 Am. St Rep. 330 ; McDanlels v. J. J. Connelly Shoe
Co., 30 Wash. 549, 71 Pac. 37, 60 L. R. A. 947, 94 Am. St. Rep. 889. Contra,
Off & Co. V. Morehead, 235 111. 40, 85 N. B. 264, 20 L R. A. (N. S.) 167, 126 Am.
St Rep. 184; Wright v. Hart, 182 N. Y. 330, 75 N. E. 404, 2 L. R. A. (N. S.)
338 ; Block y. Schwartz, 27 Utah, 387, 76 Pac. 22, 65 L. R. A. 308, 101 Am. St
Rep. 971. See ''Constitutional Law,'' Dec. Dig. {Key No.) §§ 89, 2^0, 251, 276,
278, 296; "Fraudulent Conveyances," Dec. Dig. {Key No.) { 47.
179 People y. Aachen & Munich Fire Ins. Co. of Germany, 126 111. App. 636;
State V. Smiley, 65 Kan. 240, 69 Pac. 199, 67 L. R. A. 903 ; Texas & P. R. Co.
V. Southern Pac. Ry. Co., 41 La. Ann. 970, 6 South. 888, 17 Am. St Rep. 445 ;
Kellogg V. Sowerby, 190 N. Y. 370, 83 N. E. 47 ; National Harrow Co. v. B.
Bement & Sons, 21 App. Div. 290, 47 N. Y. Supp. 462; Morris Run Coal Co.
y. Barclay Coal Co., 68 Pa. 173, 8 Am. Rep. 159 ; Bailey y. Master Plumbers,
103 Tenn. 99, 52 S. W. 853, 46 L. R. A. 561 ; Jones y. Carter, 45 Tex. Civ. App.
g 155) POLICE POWER OF THE STATES. 427
ing already considered the act of congress aimed at conspiracies and
combinations in restraint of interstate and foreign commerce/'* we
have now to speak of the "anti-trust" laws which have been enacted
in many of the states, and under which, in recent years, an active
campaign has been conducted against virtual or attempted monopolies.
The constitutional validity of these laws has almost invariably been
sustained,*** except in so far as they have attempted to make ex-
ceptions in favor of trades unions,*** and of agriculturists and pro-
ducers of live stock.*'* But the scope of these state laws is limited.
In the first place, they cannot legitimately affect any contracts or com-
binations which pertain to, or assume the character of, interstate com-
merce, as this would invade the exclusive jurisdiction of congress; ***
and herein of course lies their inherent weakness. In the next place,
450, 101 S. W. 514. See State v. Eastern Coal Co. (R. I.) 70 Atl. 1, where It
was ruled tliat the common-law crime of engrossing the market Is still a part
of the common law of Rhode Island, though dormant, and should be applied,
when It becomes necessary to enforce It, with due regard to the circumstances
and conditions existing at the time of enforcement See *' Monopolies,** Dec,
Dig. {Key No.) ff 1-20; Cent. Dig. §§ 1-U.
180 Supra, p. 236.
i«i Smiley v. Kansas, 196 U. S. 447, 25 Sup. Ct. 289, 40 L. Ed. 546; North-
em Securities Co. v. United States, 193 U. S. 197, 24 Sup. Ct 436, 48 L. Ed.
679; Jack v. Kansas, 109 U. S. 372, 26 Sup. Ct 73, 50 L. Ed. 234 ; Sanford v.
People, 121 III. App. 610 ; In re Opinion of the Justices, 193 Mass. 605, 81 N.
E. 142; Commonwealth y. Strauss, 191 Mass. 545, 78 N. E. 136, 11 L. R. A.
(N. S.) 968; State v. Firemen's Fund Ins. Co.. 152 Mo. 1, 52 S. W. 505, 45 L.
R. A. 363 ; State v. Gage, 72 Ohio St 210. 73 N. E. 1078 ; State y. Buckeye
Pipe Line Co., 61 Ohio St 520, 56 N. E. 464 ; State y. Virginia-Carolina Chem-
ical Co., 71 S. C. 544. 51 S. E. 455 ; State y. Schlltz Brewing Co., 104 Tenn.
715, 69 S. W. 1033. 78 Am. St Rep. Wl ; State y. Wltherspoon, 115 Tenn. 138,
90 S. W. 852 ; Waters-Pierce Oil Co. y. State, 19 Tex. Cly. App. 1, 44 S. W.
039 ; State y. Shippers' Compress & Warehouse Co.. 95 Tex. 603, 69 S. W. 58 ;
National Cotton Oil Co. y. State (Tex. Civ. App.) 72 S. W. 615 ; State v. Mis-
souri, K. & T. R. Co. of Texas, 99 Tex. 516, 91 S. W. 214, 5 L. R. A. (N. S.)
783. See "Monopolies^ Dec. Dig. {Key No.) §§ 9-20; Cent. Dig. f$ 8-U; ''Con-
sHtutkmal Law,** Dec Dig. {Key No.) §§ 70, Ik, 89, 106, 165, 206, 208, 238, 240,
SOS. SOo, S06.
18 s Supra, p. 420.
i«» Connolly y. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct 431, 46 L.
Cd. 679 ; Brown y. Jacobs Pharmacy Co., 115 Ga. 429, 41 S. E. 553, 57 L. R.
A. 547, 90 Am. St Rep. 126 ; State y. Cudahy Packing Co., 33 Mont 179, 82
Pac. 833, 114 Am. St Rep. 804; State y. Waters- Pierce Oil Co. (Tex. Civ.
Aipp.) 67 S. W. 1057. See "Constitutional Law,** Dec. Dig. {Key No.) H 808,
tS8, 2JiO; Cent. Dig. §§ 6^9-611, 688-699.
is« Hadley-Dean Plate Glass Co. y. Highland Glass Co., 143 Fed. 242, 74 G.
428 THB POLICE POWER. (Ch. 14
such statutes do not apply to a covenant by the vendor of a business
and its good will, that he will not compete in business with his vendee
within a restricted region or for a limited time.*** Nor do they apply
to an agreement by which the manufacturer or producer of a com-
modity grants to another the exclusive right to sell the same within
a prescribed territory,*** nor to a sale, lease, or other contract which
is merely incidental or collateral to a monopoly or unlawful combina-
tion."»
A monopoly consists in the ownership or control of so large a part
of the market supply or output of a given commodity as to stifle com-
petition, restrict the freedom of commerce, and give the monopolist
control over prices; *** and a "pool" or "trust" is a combination hav-
ing the intention and power, or the tendency, to create a monop-^
oly, control production, interfere with trade, or fix and regulate
prices;*** and the courts will not allow a monopoly or trust to es-
C. A. 462. See ^'Commerce,'* Deo, Dig. (Key No.) t 60; Cent, Dig.'n 91-9$;
**MonapoUe8,** Dec. Dig. (Key No.) | 17.
185 Brett y. Ebel, 29 App. Dlv. 256, 61 N. Y. Supp. 578; Espenson v. Koepke,
d3 Minn. 278. 101 N. W. 168 ; Wittenberg v. Mollyneaux, 60 Neb. 588, 83 N.
W. 842 ; Booth & Co. v. Selbold, 87 Misc. Rep. 101, 74 N. Y. Supp. 776 ; Gmmp
y. Ldgon, 87 Tex. Civ. Ai^. 172. 84 S. W. 250; Buckhout y. Wltwer, 157 Mich.
406. 122 N. W. 184. But compare Oomer v. Burton-Lingo Co., 24 Tex. Civ.
App. 251, 58 & W. 969. See ^^MonopoUeM,"* Dec. Dig. (Key No.) 1 12; Cent. Dig.
tlO.
186 Houck y. Wright, 77 Miss. 476. 27 South. 616; Gates y. Hooper. 90 Tex.
563, 39 S. W. 1079; Vandeweghe y. American Brewing Co. (Tex. Cly. App.)
61 S. W. 526 ; Wood Mowing St Reaping Co. y. Greenwood Hardware Co.. 75
S. C. 878» 55 S. B. 973. 9 L. R. A. (N. S.) 501. But see State y. Adams Lumber
Co.. 81 Neb. 392^ 116 N. W. 802. Bee "Monopolies,*' Dec. Dig. (Key No.) t 17;
Cent, Dig. 1 13.
187 Brooklyn Distilling Co. y. Standard Distilling ft Distributing Co.. 120
App. Dly. 237. 106 N. Y. Supp. 264; Chicago Wall Paper Mills y. General
Paper Co., 147 F^ 491. 78 C, C. A. 607. See '^Monopolies,** Dec Dig, (Key
No,) i 23.
188 state y. Eastern Coal Co. (R. L) 70 Atl. 1; Over y. By ram Foundry Co.,
37 Ind. App. 452. 77 N. B. 802. 117 Am. St Rep. 327 ; State y. Standard Oil Co.,
218 Mo. 1, 116 S. W. 902 ; State y. Duluth Boaitl of Trade. 107 Minn. 506, 121
N. W. 395 ; National Fireprooflng Co. v. Mason Builders' Ass'n, 169 Fed. 259,
94 C. C. A. 535. See ''Monopolies,** Dec Dig. (Key No.) §§ 1, 8; Cent. Dig. § 1.
i8» Chicago, W. & V. Coal Ca y. People. 114 111. App. 75, affirmed In 214
111. 421, 73 N. B. 770. And see Yazoo & M. V. R. Co. y. Searles, 85 Miss. 520,
37 South. 989, 68 L. R. A. 715; Barataria Canning Co. y. Joulian, 80 Miss.
555, 81 South. 961. See "Monopolies,** Deo. Dig. (Key No.) i| 1, 8; Cent. Dig.
§ 166) POUGB POWBB OF THB STATES. 429
cape the animadversion of the laws because cloaked under any spe-
cious device or trick.^** But to come within the laws under consid-
eration, it is essential that the c(»nbination or contract should relate
to some article in which there is competition, and hence they do not
apply to a commodity the price of which is fixed by law.*** But on
the other hand it is not necessary that the article or product affected
should be one of the necessities of life.*** It may be insurance (with
reference to the rate of premiums)*** or an article protected by pat-
ents or copyrights,**^ or even an article of such a character that it
is deemed noxious or dangerous and the sale of which is discouraged
and restricted by the laws, such as intoxicating liquors.*** But news
is not property, at least until printed, and the business of gathering
and selling news is not within the anti-trust laws.*** In the next
place it is not only a commodity which may be monopolized, or become
the subject of a pool or trust, but also a business, trade, or occupa-
it« American Strawboard Ck). ▼. Peoria Strawboard Go., 65 IlL App. 502
(case of a device, under the form of a lease, whereby a manufacturing cor-
poration was to receive, under the name of rent, a bonus for permitting Its
plant to remain Idle) ; Greer v. Payne, 4 Kan. App. 153, 46 Pac. 190 (where the
articles of an association declared that Its object was to promulgate and en-
force among its members correct and high moral principles In the transac-
tion of business, but its real object was to prevent competition and maintain
prices). See '* Monopolies,*' Dec Dig. (Key No.) {{ 12, 17; Cent, Dig. %% 10, IS.
1*1 State y. Shippers* Compress & Warehouse Co., 95 Tex. 608, 69 S. W. 5S.
See '*Monopoliee,*' Dec. Dig. (Key No.) ff 8, 12.
i»s Cummlngs t. Union Blue Stone Co., 15 App. DIt. 602, 44 N. Y. Supp.
787 ; People t. Duke, 19 Misc. Rep. 292, 44 N. Y. Supp. 336 ; Knight & Jllllson
Go. T. Kflller (Ind.) 87 N. B. 823. See ''Monopoliee,'* Dec. Dig. (Key No.) || 10,
12, 17; Cent. Dig. §§ 9, 10, 13.
1*8 Beechley y. Mulyllle, 102 Iowa, 602, 70 N. W. 107, 63 Am. St Rep. 479;
American Fire Ins. Co. y. State, 75 Miss. 24, 22 South. 99 ; State y. Firemen's
Fund Ins. Ck>., 152 Mo. 1, 52 S. W. 595, 45 L. R. A. 363. But see JGtna Ins.
Go. y. Gommonwealth, 106 Ky. 8M, 51 iS. W. 624, 45 L. R. A. 355. See **M0'
nopolies,** Dec. Dig. (Key No.) { 18; Cent. Dig. { I4.
1*4 National Harrow Co. y. E. Bement ft Sons, 21 App. Dly. 290, 47 N. Y.
Supp. 462. 6ee Straus y. American Publishers* Ass*n, 193 N. Y. 496, 86 N. B.
525. iGfea ''Monopolies," Dec. Dig. (Key No.) H 12, 17; Cent. Dig. H 10, IS.
!•• Commonwealth y. Bavarian Brewing Co., 112 Ky. 925, 66 S. W. 1016,
23 Ky. Law R^. 2334 ; Leonard y. Abner-Drury Brewing Co., 25 App. D. C.
161 ; Norton y. W. H. Thomas & Sons, 99 Tex. 578, 91 8. W. 780. See ''Mo-
nopolies,*' Dec Dig. (Key No.) { 17; Cent. Dig. f IS.
i»«6tate y. Associated Press, 159 Mo. 410, 60 S. W. 91, 51 L. R. A. 151, 81
Am. St Rep. 868. But see Inter-Ocean Pub. Co. y. Associated Press, 184 111.
438, 56 N. E. 822, 48 L. R. A. 568^ 75 Am. St Rep. 184. See ''Monopolies,**
Dec Dig. (ietf Vo.\ 1 12.
430 THE POLICE POWER. (Ch. 14
tion.**^ Hence a trade union, in so far as it attempts to monopolize
the labor market for its own members, may be a "trust" or unlawful
association ; *"* and the same is true of an association of instru-
mental musicians the object of which is to monopolize the business
and exclude non-union musicians from employment. *•• But if the
laws are so framed as to prohibit monopolies of ^'merchandise" or
"commodities," they do not include personal service nor apply to
combinations to fix the price of labor, either skilled or unskilled,
and hence do not make it unlawful for the physicians of a city to com-
bine to fix charges for their professional services.*®® And running
a theater is not "commerce" within the meaning of these laws.*®^
But in general, to bring a combination within the operation of the
laws it is not necessary that it should have effected an entire or
complete monopoly,*®* or that it should have been formed with a
malevolent purpose or with a cynical disregard of the interests of
the general public, the motive being immaterial ; **• nor is it ma-
1*7 See Harriman v. Menzles, 115 Cal. 16, 4Q Pao. 730, 35 I^. R. A. 818, 56
Am. St. Rep. 81 (as to an attempt to monopoliase the business of stevedoring) ;
Roanoke Cemetery Co. v. Goodwin, 101 Va. 605, 44 S. E. 769 (as to the rules
of a cemetery association which gave to Its superintendent a practical mo-
nopoly of the opening of graves In the cemetery) ; Downing v. Lewis, 56 Neb.
886» 76 N. W. 900 (holding that a laundry is not a "manufacturing establish-
ment," within the meaning of the anti-trust law); In re Jackson, 57 Misc.
Rep. 1, 107 N. Y. €upp. 799 (holding that the New York anti-trust law does
not apply to telegraph companies). See **Monopolie8t** Dec. Dig. (Key No.)
If 12, 2i; Cent, Dig. § 10.
!•• Brennan v. United Hatters of North America, Local No. 17, 73 N. J.
Law, 729, 65 Atl. 165. 9 L. R. A. (N. S.) 254, 118 Am. St. Rep. 727; Loewe v.
Lawlor, 206 U. S. 274, 28 (Sup. Ct 801, 52 L. Ed. 488. See *' Monopolies,** Dec
Dig. (Key No.) |§ 12, H, 21; Cent, Dig, fS 10, 11, 15.
i9» O'Brien v. Musical Mut. Protecttve & Benevolent Union Local No. 14.
National League of Musicians, 64 N. J. Eq. 525, 54 Atl. 150; Froelich v.
Musicians' Mut Ben. Ass'h, 93 Mo. App. 383. See "Monopolies,** Dec. Dig,
(Key No.) I 21.
looRohlf V. Kasemeier (Iowa) 118 N. W. 276; Lohse Patent Door Co. v.
Fuelle, 215 Mo. 421, 114 8. W. 997, 128 Am. St. Rep. 492. See "Monopolies,**
Dec. Dig. (Key No.) { 12; Cent. Dig. | 10.
«oi People V. Klaw, 55 Misc. Rep. 72, 106 N. Y. Supp. 341. See "Monop-
olies,** Dec. Dig. (Key No.) | 12; Cent. Dig. { 10.
«02 Chicago, W. & V. Coal Co. v. People, 214 111. 421, 73 N. B. 770; Sanford
T. People, 121 111. App. 619; State v. Armour Packing Co., 173 Mo. 356, 73
S. W. 645, 61 L. R. A. 464, 96 Am. St. Rep. 515 ; Cleland v. Anderson, 66 Neb.
252, 92 N. W. 806» 5 L. R. A. (N. S.) 136. See "Monopolies,** Dec Dig. (Key
No.) H 8, 17; Cent. Dig. 1 13.
ttt State V. Eastern Coal Co. (R. L) 70 Atl. 1; San Antonio Oat Go. t.
§ 166) POLICE POWER OF THE STATES. 431
terial that the price of the article affected may not have been advanced,
or that it may even have been reduced, where an intention to restrain
trade and create a monopoly is clearly established.*®*
As to the various methods of organizing a trust or monopoly, it
may be remarked that any combination among producers or dealers
in a given article to fix a scale of prices (either by the association as
a whole or through a central committee) and to maintain the same by
forbidding the members of the association to sell except through the
trust, or by coercing the retail trade by refusing to sell to outsiders
or to any who cut prices, is unlawful and a violation of the anti-trust
statutes.*®' As to combinations among corporations, it is not unlaw-
ful for one company to buy the whole or any part of the stock of a
rival or competing company, or to buy its plant and business, when
the transaction is honestly intended to do away with a competition
ruinous to both, and not to create a monopoly.*®* So also there is
nothing illegal in the consolidation of two rival corporations, when
the object is to put an end to destructive litigation and the result does
not materially affect the general market for their particular com-
State, 22 Tex. Civ. App. 118, 54 S. W. 289. See ••Monopolies*' Dec. Dig. {Key
Vo.) §1 i, 8. 17; Cent. Dig. §| 1. 19.
««4 United States v. Swift (C. C.) 122 Fed. 529 ; Chicago, W. & V. Coal Co»
V. People, 214 111. 421, 73 N. E. 770 ; San Antonio Gas Co. ▼. State, 22 Tex.
Civ. App. 118, 54 8. W. 289. See **Monopolie8,** Deo. Dig. (Key Ao.) § 17;
Cent. Dig. § 19.
306 National Harrow Co. v. Heneh, 83 Fed. 36, 27 C. C. A. 349, 39 L. R. A.
299; Brown v. Jacobs* Pharmacy Co., 115 Ga. 429, 41 S. E. 553, 57 L. R. A.
547, 90 Am. St. Hep. 12G ; -State v. Wilson, 73 Kan. 334, 84 Pac. 737, 117 Am.
St. Rep. 479; KlingeVs Pharmacy v. Sharp & Dohme, 104 Md. 218, 04 Atl.
1029, 7 L. R. A. (N. S.) 976, 118 Am. St. Rep. 399 ; Commonwealth v. Strauss,
191 Mass. 545, 78 N. E. 136, 11 L. R. A. (N. S.) 968 ; Hunt v. Riverside Co-op-
erative CInb, 140 Mich. 538, 104 N. W. 40, 112 Am. St Rep. 420 ; Albers Com-
mission Co. T. Spencer, 205 Mo. 105, 103 S. W. 523, 11 L. R. A. (N. S.) 1003 ;
Strans v. American Pnblishers* Ass'n, 85 App. Div. 446, 83 N. Y. Supp. 271;
Park & Sons Co. v. National Wholesale Druggists' Ass*n (Sup.) 50 N. Y. Supp.
1064 ; Central Ohio Salt Co. ▼. Guthrie, 35 Ohio St 66a See -Monopolies,**
Dec. Dig. (Key No.) U 12, 17; Cent. Dig. §§ 10, 13.
S06 Trust Co. of Georgia ▼. State, 109 Ga. 736, 85 S. E. 323, 48 L. R. A. 520;
State T. Continental Tobacco Co., 177 Mo. 1, 75 €k W. 737; Trenton Potteries
Co. T. Oliphant, 58 N. J. Law, 507, 43 AU. 723, 46 L. R. A. 255, 78 Am. St
Rep. 612; Rafferty v. Buffalo City Gas Co., 37 App. Div. 618, 66 N. Y. Supp.
288; Francis v. Taylor, 31 Misc. Rep. 187, 65 N. Y. Supp. 2& See ••Monop-
olief ,*' Dec Dig. (Key No.) { 20.
432 THB POLICE POWBB. (Cb. 14
modity.**^ But a merger of corporations, either by actual consolida-
tion or by one acquiring a controlling interest in the other, is illegal,
when they operate under public franchises or when the result is an
entire monopoly of their particular business in a given territory, as
in the case of a consolidation of parallel railroads or of all the gas or
water companies of a city or all the companies dealing in ice or coal
in the municipality.*^* And on a broader scale, these laws dearly
apply to the usual device for the formation of a corporate trust, where
all or most of the manufacturers of an important commodity enter
into an arrangement for the transfer of their several plants to a new
corporation which is to take over and carry on their business, and
which usually issues a part of its stock as part of the consideration
for the purchase of the plants, and takes into its directorate or
management the principal officers of the constituent companies, and
puts the vendors under an agreement not to compete.*^* For some
time, corporations seeking to form a monopoly or trust without ren-
dering themselves amenable to these laws resorted to the device of a
''holding company," that is, a corporation which acquires and holds
all the stock of the several constituent companies, issuing its own
stock in exchange. Theoretically such a company does no business,
and theoretically it does not destroy the constituent companies but
maintains and continues them in active operation, and on the face
of the transaction there is nothing to prevent the most active ccxnpe-
tition among them. But actually of course the holding company is
the real manager of the entire consolidated business and regulates
the output and price; and when this results in an entire or partial
monopoly, the courts are now disposed to hold it unlawful and a vio-
lation of the statutes.**®
aoT Meredith v. New Jersey Zinc & Iron Co., 55 N. J. Bq. 211, 87 Atl. 539.
See **Monopolies,** Dec, Dig. {Key No,) §S IS, tO.
MS Dunbar t. American Telephone ft Telegraph Co., 224 111. 9, 79 N. B. 423,
115 Am. 6t. Rep. 132; People v. Nussbaum, 32 Misc. Rep. 1, 66 N. Y. Supp.
129; San Antonio Oas Co. t. State, 22 Tex. Civ. App. 118, 54 S. W. 289;
Scott v. Farmers' ft Merchants' Nat. Bank, 97 Tex. 31, 75 S. W. 7, 104 Am. St
Rep. 835 ; Gulf, C. ft S. F. Ry. Co. v. State, 72 Tex. 404, 10 S. W. 81, 1 L.
R. A. 849, 18 Am. St Rep. 815. But see Manchester ft L. R. R. t. Concord R.
R., 66 N. H. 100, 20 Atl. 383, 9 L. R. A. 689, 49 Am. St Rep. 582. See ^'Mo-
tiopoliea,** Dec. Dig. (Key No,) §§ 16, 20.
20» Trenton Potteries Co. v. Ollphant, 56 N. J. Eq. 680, 89 Atl. 923; Hard-
ing y. American Glucose Co., 182 111. 551, 55 N. B. 577, 64 L. R. A. 738, 74 Am.
St. Rep. 189. See "Monopolies,** Dec. Dig. (Key No.) {§ 16, 17, 20; Cent. Dig,
II 12, IS.
110 Burrows y. Interborough Metropolitan Co. (O. C.) 156 Fed. 389; South-
g 155) POLICE POWER OF THE STATES. 433
Regulation of Roads and Streets.
A municipal corporation has authority, under the police power, to
regulate the construction, repair, and use of the public streets and
roads.*** And hence ordinances may be passed to prescribe the rate
of speed of automobiles, bicycles, and other vehicles, and with refer-
ence to lights, signals, display of numbers, etc., so far as may be
necessary to secure the safety and ccnnfort of passengers on the
streets and highways.'*' So also a city or town may make provision
for sprinkling and sweeping the streets at the cost of property owners
on such streets ; **• and prohibit the running at large of cattle.***
The right of a city to take the land of a riparian proprietor to enlarge
a roadway which has been encroached on by the waters of the river
is an exercise of the police power vested in the city by the state, and
not of the power of eminent domain ; and hence an ordinance direct-
em Electric fiecorlties Go. v. State, 91 MIm. 195, 44 South. 785, 124 Am. St
Rep. 638. See '^Monopoliee,'* Deo. Dig. (Key Vo.) H 16, 20; Cent. Dig, 1 12.
sii The power of a municipal corporation to order sidewalks of a particu-
lar kind to t>e laid, and to assess against the abutting property owners an
amount necessary to pay for the same, and to pay for keeping the same in
repair and proper condition for the use of the public, is generally upheld up-
on the ground that it is a proper exercise of the police power. The same prin-
ciple applies to grading, curbing, or paving streets and laying sewers, at the
cost, or partly at the cost, of abutting lot owners, the point, in all these cases,
being that the charge upon such owners is not a tax but a local assessment
for special benefits, and that they cannot complain that they are deprived
of their property without due process of law or without compensation. But
it is very doubtful whether these enactments are referable to the police pow-
er, properly and strictly so called. If such statutes are not unconstitutional
as an exercise of the power of taxation, in a modified form, it is enough, and
the police power need not be invoked for their Justification.
"« Christy v. Elliott, 216 lU. 31, 74 N. B. 1035, 1 L. R. A. (N. S.) 216, 108
Am. St Rep. 196 ; City of Des Moines v. Keller, 116 Iowa, 648, 88 N. W. 827,
57 L. R. A. (N. S.) 243. 93 Am. St Rep. 268; People v. Schneider, 139 Mich.
673, 103 N. W. 172, 09 L. R. A. 345 ; State v. Aldrich, 70 N. H. 391, 47 Atl.
602, 85 Am. St Rep. 631 ; SUte v. Smith (R. I.) 69 Atl. 1061. See **Municipia
Corporations,** Dec. Dig, (Key No,) § 70S: Cent, Dig, {§ 1509-1513.
SIS Reinken v. Fuehring, 130 Ind. 382, 30 N. B. 414, 15 L. R. A. 624, 30 Am.
St Rep. 247. See **Municipai Corporatione;* Dec Dig. (Key No,) H 61S. 674;
Cent. Dig, H 145h 1455,
114 Ross V. Desha Levee Board, 63 Ark. 176, 103 S. W. 880, 21 L. R. A. (N.
S.) 699, 119 Am. St Rep. 131 ; Paducah v. Ragsdale, 122 Kj. 425, 92 S. W.
IB, 28 Ky. Law Rep. 1057. See "Jfimlclpal OorporatUme,*' Dea Dig. (Key
No.yi 604; Cent, Dig. If 1SS5-1SS7.
Bi«.Oonst.L.(3d.Bd.) — ^28
434 THE POLICB POWER. (Ch. 14
ing the appropriation of land for such a purpose, without compensation
to the riparian proprietor, is not unconstitutional.***
Game Laws.
The preservation of game and fish has always been treated as within
the proper domain of the police power and laws limiting the season
within which birds or wild animals may be killed or exposed for sale,
and prescribing the time and manner in which fish may be caught,
have been repeatedly upheld by the courts.*^* And the prohibition
may be extended so as to include fish which have been artificially
propagated or maintained.***
UMITATIOirB OF THE POUCIE POWER.
156. It is BAeessary to tl&e Talidity of poUoe resnlatioM tkmt tl&ej
flj&onld mot—
(a) Violate any provisioa of the federal or state eoaetitiitioa*
Cb) Interfere with the ezelusiTe Jurisdietion of eoacrese.
(e) Unlawf ullj diserimiiiate asainst indiTiduale or elaeeee.
(d) Be unreaeonahle.
(e) IsTade priTate richte of libertj or property luiaeeeeearllj.
(f) They nmet aetnally relate to 101110 one or more of the objeete
for the preeerratioa of whioh this power may be ezerei«ed» and
be proper aad adapted to that purpose.
Limitations under Federal and State Constitutions.
In the nice adjustment of rights and powers between the states
and the Union, questions frequently arise which require a determin-
ation of the relative scope of the police power of the state and the au-
thority vested in congress. In such cases, the integrity of each must
be preserved, without enroachment upon the other. The jurisdiction
secured to the federal government by the constitution sets a limit to
the police power of the states. "The subjects upon which the state
«i5 Ruch V. City of New Orleans, 43 La. Ann. 275, 9 South. 473. See ** Emi-
nent Domain,'' Dec, Dig, {Key No.) § 2; Cent, Dig, | 5,
21 • Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385 ; Ex parte
Kenneke, 136 Cal. 627, 69 Pac. 261, 89 Am. St. Rep. 177 ; Smith v. State, 155
Ind- 611, 58 N. R 1044, 51 L. R. A. 404 ; Ex parte Fritz, 86 Miss. 210, 38 South.
722, 109 Am. St Rep. 700 ; State v. Xergaard, 124 Wis. 414, 102 N. W. 899.
But see etate v. Mallory, 73 Avk. 23G, 83 S. W. 955, 67 L. R. A. 773. See
'*Fi8h,'* Deo. Dig. (Key No,) §| 8, S, 12; Cent. Dig. || 16-18; "Game,'' Deo.
Dig. (Key Vo.) §§ 5%, 4; Cen.t. Dig. %% 2, S.
SIT Commonwealth y. Gilbert, 160 Mass. 157, 35 N. E. 454, 22 L. R. A. 439.
Bee "Fish;* Dec. Dig. {Key No.) S U; Cent. Dig. I 25.
§ 166) LIMITATIONS OF THE POLICE POWER. 435
may act are almost infinite ; yet in its regulations in respect to all of
them there is this necessary limitation, that the state does not thereby
encroach upon the free exercise of the power vested in congress by
the constitution." *^* Yet a state has the same unlimited jurisdiction
over all persons and things within its territorial limits as any foreign
nation, where that jurisdiction is not surrendered or restrained by the
federal constitution, and "all those powers which relate to merely mu-
nicipal legislation, or what may perhaps more properly be called in-
ternal police, are not thus surrendered or restrained, and consequently
in relation to these, the authority of a state is complete, unqualified,
and exclusive." **•
It is often and broadly stated that the police power must be exer-
cised in subordination to all the limitations and prohibitions contained
in both the federal and state constitutions, and that a police regula-
tion which violates any provision of either is void.*** But this dec-
laration throws very little light on the constitutional limitations of
the police power. For the same thing is true of every act of a state
«i8 Western Union Tel. Co. v. Pendleton, 122 TJ. S. 347, 7 Sup. Ct 1128, 30
L. Ed. 1187; Minnesota t. Barber, 136 U. S. 313, 10 Sup. Ct. 802. 34 L. Ed.
455 ; Brimmer v. Rebman, 138 U. S. 78, 11 Sup. Ct. 213, 34 L. Ed. 862. Though
the police power of a state must yield to an act of congress, it yields only
when and to the extent that its enforcement would interfere with the act of
congress, or with the free exercise of rights conferred or the discharge of du-
ties enjoined by It. State v. First Nat. Bank, 2 S. D. 068, 51 N. W. 587. A
license granted by the United States, under the internal revenue laws, to carry
on any species of business (as, that of a liquor dealer) In a particular state
named, although it has been granted in consideration of a fee paid, does not
give the licensee power to carry on the business in violation of the state laws
forbidding such business to be conducted within its limits ; nor does it relieve
the holder from the necessity of taking out any license required by the laws
of the state. If that is the system therein prevailing. License Tax Cases, 5
Wall. 462, 18 L. Ed. 497 ; McGuire v. Massachusetts, 3 Wall. 387, 18 L. Ed.
226. See '^Constitutional Late,'* Dec. Dig. (Key No,) §§ 81, 207; Cent, Dig. H
U8, 629, 6S0.
21* Mayor, etc., of CUf of New York v. Miln, 11 Pet. 102, 139. 9 L. Ed. 648;
Solon T. State, 54 Tex. Cr. App. 261, 114 S. W. 349. See "Constitutional Law,*'
Dee. Dig. (Key Vo.) S 81; Cent. Dig. § 148.
3 so Lake Shore ft M. S. R. Co. v. Smith, 173 U. S. 684, 19 Sup. Ct 565, 43 L.
Ed. 858 ; In re Wilshlre (C. C.) 103 Fed. 620 ; City of BellevUle v. St Clair
County Turnpike Co., 234 111. 429, 84 N. E. 1049, 17 L. R. A. (N. S.) 1071 ;
People V. Murphy, 129 App. Div. 260, 113 N. Y. Supp. 855 ; State v. Chittenden,
127 Wis. 468, 107 N. W. 500 ; State v. Froehllch, 115 Wis. 32, 91 N. W. 115,
58 li. R. A. 757, 95 Am. St. Rep. 804. See "Constitutional Law,*" Dea Dig.
(Key Vo.) ^81; Cent. Dig. | H8.
436 THE POLICE POWER. (Ch. 11
legislature, and the tendency of such statements is merely to make
the police power co-extensive with legislative power in general. Fur-
ther, how far the constitutional guaranties may avail for the protec-
tion of individual liberty and property rights, in the face of legisla-
tures determined to bring about the reign of righteousness by force of
statute, and of courts too often supine to their wishes,*** may be seen
from the following considerations: Both national and state consti-
tutions rigorously prohibit the enactment of laws "impairing the
obligation of contracts." But it is said that the police power is in-
alienable and that no legislature can hamper the power of its succes-
sors to make such laws as they deem proper in matters of police ; and
hence if the alleged contract involves a relinquishment or surrender
of that power to individuals or corporations, it is one which the legis-
lature had no power to make, and therefore, being void, may be abro-
gated at any time.*** Again, private property may not be taken for
public use without just compensation. But as we have shown on a
preceding page, this is very frequently done, under the pretence of
police regulation, and the injured individual is supposed to be "com-
pensated" by his participation in the general or common benefit.***
Again, no state may make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States ; but on
this stringent constitutional prohibition the courts have engrafted an
tsi Lest tbls language should seem extrayagant, the author begs to call at-
tention to the language of Mr. Justice Brewer In his dissenting opinion in
the case of Chicago, B. & Q. R. Co, v. Illinois Drainage Com'rs, 200 U. S. 599,
26 S. Gt 341, 50 L. Ed. 596, where he says : "It is said that this is done un-
der the police power of the state, and that that can be exercised without any
provision for compensation. It seems to me that the police power has become
the refuge of every grievous wrong upon private property. Whenever any un-
just burden Is cast upon the owner of private property which cannot be sup-
ported under the power of eminent domain or that of taxation, it is referred
to the police power. But no exercise of the police power can disregard the
constitutional guaranties in respect to the taking of private property, due pro-
cess, and equaCl protection, nor should it override the demands of natural
Justice." See **Con8titutional Law," Dec Dig, {Key No,) S 81; Cent. Dig, %
U8,
S22 Boston Beer Ck>. v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989; Stone v.
Mississippi, 101 U. S. 814, 25 L. Ed. 1079 ; Boyd v. Alabama, 94 U. S. 645, 24
L. Ed. 302; Butchers' Union Slaughterhouse & L. S. L. Co. v. Crescent City
Live Stock Landing & S. H. Co., Ill U. S. 746, 4 Sup. Ct 652, 28 L. Ed. 585 ;
Kresser v. Lyman (C. C.) 74 Fed. 765. See **Con9titutional Law,'' Dec Dig.
(Key yo,) H SI, 111; Cent. Dig. i§ U8, 286.
sss Supra, p. 38&
I 166) LIHITATIONS OF THE POLIOB FOWSB. 437
exception as to laws calculated to promote the health, comfort, and
welfare of society.*** The fourteenth amendment contains imperative
and far-reaching limitations on the legislative power of the states.
But it is held that the exercise by a state of its police power is not
controlled or in any way affected by these provisions.**' In particu-
lar, the provision as to due process of law has no application to the
police power; or, in other words, though a statute may deprive the
citizen of his liberty or property, it is held that this is not done "with-
out due process of law" if only the statute has some substantial rela-
tion to the public welfare.**^ So also as to the requirement of the
"equal protection of the laws." This, it is said, is not denied to per-
sons whose business or property is interfered with by a police regula-
tion, provided only that there is no grossly unfair discrimination
against them.**^
Unreasonable Laws and Unjust Discriminations.
Nevertheless, in order to put a curb on the unlimited exercise of
the police power and secure to individuals the benefit of the various
constitutional guaranties, the courts have worked out the rule that
the legislature must not, under the guise of police regulations, arbi-
trarily invade private property or personal rights, the test being found
in the answer to the question whether the regulations made have some
real and substantial relation to the public safety, health or welfare,
and whether that is the end sought.**' If not, the alleged police
ti4 Halter v. etate, 74 Neb. 757, 105 N. W. 298, 7 L. B. A. (N. S.) 1079, 121
Am. St Rep. 754 ; affirmed In 205 T7. S. 34, 27 Sup. Ct 419, 51 L. Ed. 696. See
•'Constitutional Law,** Dec Dig. (Key yo.) §| 81, t06; Cent. Dig. §| 148, 6tS-
e48.
ss* Shreveport t. Schnlsinger, 113 La. 9, 86 South. 870; EZnlght k Jinison
Co. T. Miller (Ind.) 87 N. B. 823. See "Conetitutional Law," Deo.^ Dig. (Kep
Vo.) I 81 ; Cent. Dig. | H8.
ss«PoweU y. Pennsylvania, 127 U. S. 678, 8 Sop. Ct 992, 82 Ll Ed. 253;
Mnnn y. Illinois, 94 U. S. 113, 24 L. Ed. 77 ; Mugler t. Kansas, 123 U. S. 628,
8 Sup. Gt 278, 81 L. Ed. 205 ; Meffert t. Packer, 195 U. S. 625, 25 Supu Gt
790, 49 L. Ed. 350 ; Grainger t. Douglas Paf k Jockey Club, 148 Fed. 513, 78
C. G. A. 199 ; In re Newell, 2 Gal. App. 767, 84 Pac. 226. See ''Conatitutionoi
Law:* Dec. Dig. (Key No.) §§ 81, 209, US; Cent. Dig. %\ U8, 618, JSt-JSS.
ssT Otis T. Parker, 187 U. S. 606. 23 Sup. Gt 168, 47 L. Ed. 828; Booth t.
People, 186 111. 43, 57 N. E. 798, 50 L. R. A. 762, 78 Am. St Rep. 229 (affirmed
184 U. S. 425, 22 fiup. Gt 425, 46 L. Ed. 623) ; SUte t. LlTlngston Goncrete
Bldg. ft Mfg. Go., 34 Mont 670, 87 Pac. 960. Bee •^ConetUutional Law," Dec
Dig. (Key No.) H 209, 2S9; Cent. Dig. H S78, 694.
S28 In re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; Galifomia Reduction Go.
T. Sanitary Reduction Works, 126 Fed. 29, 61 G. G. A. 91 (affirmed 199 U. 8.
438 THH FOUCE FOWEB. (Ch. 14
regulation is unreasonable and may be held void.'** So also, police
laws must not make unjust or unnecessary discriminations between
individuals or classes, or, as more commonly expressed, there must be
no "arbitrary" discrimination; and a classification of individuals, of
trades, or of kinds of property, is held to be arbitrary, if there is no
substantial ground for a distinction between them, or if the pretended
ground of distinction h5s no substantial relation to the public welfare,
although the statute, as a whole and asjde from any such discrimina-
tions, might be a valid police law.**®| Again, police regulations are
made for the "public" safety, health, or welfare; and to justify an
exercise of this power, it must appear that the interests of the public
generally, as distinguished from those of a few individuals or of a
particular class, require such interference.*'* iBut police regulation*
306, 26 Sup. Gt. 100, 50 L. Ed. 204) ; Her t. Ross, 64 Neb. 710, 90 N. W. 869.
57 L. R. A. 895,. 97 Am. St Rep. 676 ; People v. Murphy, 129 App. Dlv. 260,
113 N. Y. Supp. 655. See ^'ConsUtutional Law** Dec. Dig. {Key No.) § 81;
Cent. Dig. | U8.
289 Toledo, W. & W. Ry. Co. v. City of Jacksonville, 67 IH, 37, 16 Am. Rep,
611; Seaboard Air Line R. Co. t. Railroad Commission of Alabama (C. C.)
155 Fed. 792. Bee ^'Constitutional Law** Deo. Dig. (Key No.) { 81; Cent. Dig.
1 148.
a«o Ylck Wo V. Hopkins, 118 U. S. 356. 6 Sup. Ct. 1064, 30 L. Ed. 220; Petit
T. Minnesota, 177 U. S. 164, 20 Sup. Ct. 666, 44 L. Ed. 716 ; Ex parte Drayton
(D. C.) 153 Fed. 986 ; Ex parte Hollman, 79 S. C. 9, 60 S. E. 19, 21 L. R. A.
(N. S.) 242; Walsh v. City of Denver, 11 Colo. App. 523, 53 Pac. 458; In re
Lee Sing (C. C.) 43 Fed. 359 ; State v. Dering, 84 Wis. 585, 54 N. W. 1104, 19
L. R. A. 858, 36 Am. St. Rep. 948; Mayor, etc., of City of Baltimore v. Ra-
decke, 49 Md. 217, 33 Am. Rep. 239 ; In re Jacobs, 98 N. Y. 98, 50 Am. Rep.
636 ; Harmon v. State, 66 Ohio St 249, 64 N. E. 117, 58 L. R. A. 618 ; Lappin
V. District of Columbia, 22 App. D. C. 68. The police power of the state is to
be used impartially and without unjust discrimination, and while, as between
liquor-selling and other callings less harmful to the public, the former may
be discriminated against, there is no warrant for unjust discrimination as
between individuals engaged in the same business. State v. New Orleans,
113 La. 371, 36 South. 999, 67 L. R. A. 70. But see Brady v. Mattern, 125
Iowa, 158, 100 N. W. 358, 106 Am. St. Rep. 291, where it is said that the legis-
lature may discriminate between classes in regulating a business where the
discrimination is based on a reasonable distinctloi^ involving the public wel-
fare. Bee '^Constitutional Laic," Dec. Dig. {Key No.) {§ 81, 204-250; Cent.
Dig. §§ 148, 591-113.
«8i state V. Redmon, 134 Wis. 89, 114 N. W. 137, 14 L. R. A. (N. S.) 229,
126 Am. St. Rep. 1003 ; Bennett v. Valller, 136 Wis. 193, 116 N. W. 885, 17 L.
R. A. (N. S.) 486, 128 Am. St. Rep. 1061 ; Com. v. Campbell (Ky.) 117 S. W. 383.
See ''ConstUtUional Law,** Dec. Dig. (Key No.) § 81; Cent. Dig. ^ H8,
/
§ 166) LIMITATIONS OF THB POLICE POWER. 439
will not be declared void because the courts deem them contrary to
natural justice and equity.**"
Province of the Courts,
It is for the legislature to determine what regulations are proper
or necessary to be enacted in the exercise of the police power, and the
courts have nothing to do with the wisdom, policy, or expediency of
the laws passed under this power."** But it is the province and duty
of the courts to determine what are the proper subjects for the exer-
cise of this power, and what constitutional limitations or restrictions
must be applied to its exercise, and whether the statute in question is a
reasonable exercise of the power ; and as to the latter point, the courts
may and should inquire whether it has ^ real and substantial relation
to the public safety, health, or welfare, and operates or tends in som^^
real degree to promote or secure these objects; and as to this the
legislative decision is not conclusive, but is subject to judicial review,
and the courts are not precluded from such an inquiry by the fact that
the legislature has expressed its judgment or declared its intention in
the statute."*
«•« State v. Rlchcreek, 167 Ind. 217, 77 N. B. 1085, 5 L. R. A. (N. S.) 874,
119 Am. St Rep. 491. Bee ''Constitutional Law,** Dec. Dig. (Key No.) § 81;
Cent. Dig. | U8.
«»» City of New York v. M. Wlneburgh Advertising Co., 122 App. Dlv. 748,
107 N. Y. Supp. 478 ; State v. Drayton, 82 Neb. 254, 117 N. W. 768 ; State v.
WnUams, 146 N. C. 618, 61 S. E. 61, 17 L. R, A. (N. S.) 299 ; Bonnett t. Val-
lier, 136 Wis. 193, 116 N. W. 885, 17 L. R. A. (N. S.) 486, 128 Am. St Rep.
1061; California Reduction Co. v. Sanitary Redaction Works, 126 Fed. 29,
61 C. C A. 91 ; Bigelow t. Old Dominion Copper Mining ft Smelting Co. (N.
J. Ch.) 71 Atl. 153. The case last cited holds that the public policy of a state
is the creature not of the courts but of the legislature, and that the courts
hare nothing to do with forming it and can only recognize it like any other
matter of public law. Bee "Constitutional Law" Dec. Dig. (Key No.) H 70, 81;
Cent. Dig. H 129-1S2, 1S7, U8.
ta« Mugler t. Kansas, 123 U. S. 623, 8 Sup. Ct 273, 31 L. Ed. 205 ; In re
Jacobs, 98 N. Y. 98, 60 Am. Rep. 636; Hume t. Laurel Hill Cemetery (C. C.)
142 Fed. 552; City of Belleyille v. St Clair County Turnpike Co., 234 111.
428, 84 N. B. 1049, 17 L. R. A. (N. S.) 1071 ; People y. Steele, 231 111. 340, 83
N. E. 236, 14 L. R. A. (N. S.) 361, 121 Ajn. St Rep. 321 ; Laurel Hill Cemetery
T. City and County of San Francisco, 152 Cal. 464, 93 Pac. 70 ; Odd Fellows'
t / [ Cemetery Am'h t. City and County of San Francisco, 140 Cal. 226, 73 Pac.
987 ; Halter v. State. 74 Neb. 757, 105 N. W. 298, 7 L. R. A. (N. S.) 1079, 121
Am. St Rep. 754 ; litchHeld t. Pond, 186 N. Y. 66, 78 N. E. 719 ; People t.
Warden of City Prison, 157 N. Y. 116, 51 N. B. 1006, 43 L. R. A. 264, 68 Am.
St Rep. 763; City of New York y. IL Wineburgh Adyertlsing Co., 122 App.
II
440 THE FOLIOB FOWKR. (Ch. 14
DlT. 74S, 107 N. T. Supp. 478 ; State t. Boberts, 74 N. H. 478, 69 Atl. 722, 16
L. R. A. (N. S.) 1115 ; Bonnett t. Yalller, 136 Wis. 103, 116 N. W. 885, 17 L.
R. A. (N. 8.) 486, 128 Am. St Rep. 1061 ; State t. Redmon, 134 Wis. 80, 114
N. W. 137, 14 L. R. A. (N. S.) 229, 126 Am. St Rep. 1003 ; State t. WUliams,
146 N. G. 618, 61 S. B. 61, 17 L. R. A. (N. S.) 299; People T. Murphy, 129
App. Dlv. 260, 113 N. T. Supp. 855. See ''ConstUutionol Law/* Dec. Dig. (Key
So.) H 70, 81; Cent. Dig. H ItO-lSt, 1S7, 148.
SS 157-158) THX FOWBB OF TAXATION. 441
CHAPTER XV.
THE POWER OF TAXATION.
167-158. General Consideratioiis.
159. Independence of Federal and Btate GoTemmenta.
160. Limitations Imposed by Federal Constitution*
161-162. Limitations Imposed by State Constitutiona.
163-164. Purposes of Taxation*
165-166. Equality and Uniformity in Taxation.
167-169. Double Taxation.
170. Taxation and Representation.
17L Taxation Under the Police Power.
OSXE&AIi OOKBIDERATIOirS.
157. Tke power «f taacatloB Is am essential and labereat attribate of
soTorolsnty amd boloacs as a auitter of ricbt to OTorjr iadopoad-
ont state or Boremateaty aad it is as eztoaslTO as tl&e raace of
smbjoots oTor wbieh the power of tbat corenuaeat ezteiids.i
168. Taxes are ratable bvrdems or ebarces latposed by tbe letrtslatiTO
power apon persoas or property to raise aioaey for pablie
Nature of Taxes.
Taxes are a ratable portion of the prc^rty of the individual citi-
zens, or of the produce of their labor and property, taken by the state
or nation, in the exercise of its sovereign rights, for the support of
government for the administration of the laws, and as a means of
continuing in operation the various legitimate functions of the state,
and levied regularly, uniformly, and equally upon such persons or
property in pursuance of lawful enactments.' It is a mistake to say
i Inhabitants of Camden t. Camden Tillage Corp., 77 Me. 530, 1 AU. 689 ;
New Jersey R. & Transp. Co. t. Collectors of East, Fifth, and Ninth Wards,
Newark, 26 N. J. Law, 519 ; Porter t. Rockford, R. I. ft St. L. R. Co., 76 111.
561, 678 ; People y. Pitt, 169 N. Y. 521, 62 N. B. 662, 56 L. R. A. 372 ; SUte
V. Thome, 112 Wis. 81, 87 N. W. 797, 55 L. R. A. 956; Clark t. Rochester, 13
How. Prac. (N. Y.) 204 ; Bank of Pennsylvania v. Commonwealth, 19 Pa. 144 ;
Debolt T. Ohio Life Ins. ft Trust Co., 1 Ohio St 563 ; Northern Pac. R. Co. ▼.
Carland, 5 Mont. 146, 3 P«ic. 134. See "Taxation,** Dec. Dig. {Key No.) H i-
S6; Cent. Dig. |§ ISS.
s Graham t. St Joseph Tp., 67 Mich. 652, 85 N. W. 808 ; City of New Lon-
442 THE POWER OF TAXATION. (Ch. 15
that a tax is a payment made to the govenunent in consideration of
the advantages which it offers, or as an equivalent for the security it
affords, or 4 pledge to secure the enjoyment of the remainder of one's
property. For the advantages of organized society are not a matter
of bargain and sale, and protection in the enjoyment of his rights is
a duty owed by the state to every citizen, whether he can or does
pay taxes or not, and this duty would be just as much obligatory on
the state if it needed no taxes.*
But it is not consonant with the constitutional idea of a tax that
it should be exacted from individuals in an arbitrary or discriminat-
ing manner. The idea of taxation implies equality of burdens, and
a regular distribution of the expenses of government among those
persons, or those classes of property, which are rightly subject to the
burden of them. The requirement of apportionment is absolutely es-
sential in any exercise of the power to tax. There can be no such thing
as valid taxation when the burden is laid without rule, either in re-
spect to the subjects of it or to the extent to which each must contrib-
ute.* Again, the term "tax" is properly applied only to those exac-
tions which are levied for distinctly governmental purposes. For this
reason, water rates, though payable to a municipal corporation as the
owner of the water system, are not taxes.' And on similar principles
it is held that taxes are not "debts" in the ordinary sense of that word,
as they do not involve any element of contractual obligation, and the
claim of the government for its taxes is paramount to all other de-
mands.*
don y. Miller, 60 Ck>nn. 112, 22 Atl. 499 ; Gibbons t. Ogden, 9 Wheat 1, 6 L.
Ed. 23 ; Hanson v. Vernon, 27 Iowa, 28, 1 Am. Rep. 273. See **Tawation,** Dec.
Dig. (Key No.) § i; Cent. Dig. 1 1.
s Black, Tax Titles (2d Ed.) § 2.
4 Black, Tax Titles (2d Ed.) § 84; Henry v. Town of CJhester, 15 Vt 460;
Tide- Water O). v. Coster, 18 N. J. Eq. 518, 90 Am. Dec. 634; Stuart v. Palmer,
74 N. Y. 183, 30 Am. Rep. 289; C^ty of Lexington t. McQuillan's Heirs, 9 Dana
(Ky.) 513, 35 Am. Dec. 159. A state may make the ownership of property
subject to taxation relate to any day or period of the year which it may think
proper. Shotwell v. Moore, 129 U. S. 590, 9 Sup. Gt. 362, 32 L. Ed. 827. See
**Tawation," Dec. Dig. {Key No.) fi§ 39-45; Cent. Dig. || 68-lOS.
K Sllkman y. Board of Water Ck>m'rs, 71 Hun, 37, 24 N. T. Supp. 806 ; St.
Louis Brewing Ass*n v. St. Louis, 140 Mo. 419, 37 S. W. 525; Jones ▼. Board
•f Water Corners of Detroit, 34 Mich. 273. See "Water and Water Courses,**
Dec Dig. (Key No.) fi 20S; Cent. Dig. |§ 290-299.
• Jack y. Welennett, 115 111. 105, 3 N. E. 445, 56 Am. Rep. 129; Statt T.
Chicago & N. W. R. Co., 128 Wis. 449, 108 N. W. 594; Jones y. Gibson, 82
§§ 157-158) GENERAL GONSIDERATIONa 443
Power of Taxation in General.
The power of taxation, as above stated, is an essential attribute of
sovereignty. It is in theory absolutely unlimited in extent, but prac-
tically it is hedged about with certain positive constitutional limita-
tions, within which its exercise must be confined, in order to answer
the requirement of legality/ It is likewise inalienable, though spe-
cific exemptions from taxation may be granted in proper cases and
upon sufficient* considerations.* Nor can this power be delegated,
except to the extent to which it is necessary to enable municipal cor-
porations to raise money by taxation for their own proper purposes.*
And neither lapse of time, failure of demand, nor the laches of public
officers or agents can affect the right of the state to assess. and collect
taxes.*®
Same — Distinguished from Eminent Domain.
The exaction of money from individuals under the power of taxa-
tion, and the appropriation of private property for public use by vir-
tue of the power of eminent domain, should not be confused. In pay-
ing taxes, the citizen contributes his just and ascertained share to the
expenses of the government under which he lives. But when his prop-
erty is taken under the power of eminent domain, he is compelled to
surrender to the public something above and beyond his due pro-
portion for the public benefit. The matter is special. The particular
estate is taken because the government has special need for it. It is
in the nature of a compulsory sale to the state. Hence arises the
•
Ky. 561; Geren t. Gruber, 26 La. Ann. 694; North Missouri R. €!o. t. Ma-
guire, 49 Mo. 490, 8 Am. Rep. 141; Danforth v. McCk>ok €k>unt7, 11 S. D.
258. 76. N. W. 940, 74 Am. St Rep. 808. See "Taxation." Deo. Dig. {Key No.)
f 1; Cent Dig. | 1.
T See McCuUoch v. Maryland, 4 Wheat 316, 428» 4 L. Ed. 579 ; PuUen v.
Wake Ck)unty Com*rs. 66 N. €. 361 ; Succession of Levy, 115 La. 377, 39 South.
37, 8 L. R. A. (N. S.) 1180; Cooley, Taxation, p. 54. See '"Tawation," Dec.
Dig. (Key No.) §| S7-56; Cent. Dig. |§ 6i-iS2.
8 Mechanics* & Traders' Bank v. Debolt, 1 Ohio St 591. See Infra, p. .
See ''Taxation,** Deo. Dig. (Key No.) || 27-29, 191-251; Cent. Dig. %% 60, SOI-
415.
• Marlon v. Forrest, 168 Ind. 94, 78 N. E. 187 ; Gilkeson v. Frederick Jus-
tices, 13 Grat (Va.) 577. See "Taxation,** Deo. Dig. (Key No.) i 28; Cent.
Dig. I 60.
10 North Carolina R. Ck>. t. Alamance CkHinty Oom'rs, 82 N. C. 259 ; State
V. Buchanan, 24 W. Va. 362 ; City of Covington ▼. CoTlngton Gaslight Co., 2
8. W. 326, 8 Ky. Law Rep. 515. See ''Taxation,** Dec. Dig. (Key No.) i 33;
Cent. Dig. § 62.
^44 THE POWBB OF TAXATION. (Ch. 15
justice and necessity of a constitutional provision for compensation to
the owner.**
Same — A Legislative Function.
In respect to the kind of tax which shall be laid, and also in respect
to the objects which shall be placed under its burdens, the legislature,
as the representative^of the sovereign people, must exercise its judg-
ment and discretion, having in view the needs and conditions of the
country. The power of taxation is exclusively a legislative function,
and cannot be exercised except in pursuance of legislative authority.
The judicial department has no power to levy or assess taxes.**
XHDEPEHDENOE OF FEDERAIi AND 8TATB CK>VZrailBCEim«
169. Tke wt^mwamatj imdependeiie* ef tlie federal and state ceTenments
iatposefl a liaiitatioa ttpoa tlie tawliig power of eaek Neither
eaa so exereiae ite own power of tazatton as to eartail the
riffhtf al powore of tl&e other, or interfere with the free die-
eharse of ite eoaatitatioBal faaetioiis, or obetmet, emharrass,
or avllif 7 its lesitimate operations, or destroy the means or
aconoies employed by it in the eneroise of those powers and
fnnetio]
This limitation upon the taxing power is not expressed in the con-
stitutions, but is to be implied from the nature of our system of gov-
ernment. No political community can in general lay assessments upon
any subjects of taxation not within its territorial jurisdiction. But
this axiom of law has a special and highly important application in
11 Booth V. Woodbury, 82 Ck>nn. 130 ; People v. Brooklyn, 4 N, Y. 419, 55
Am. Dec. 266; Piqua Branch of State Bank v. ^noop, 16 How. 369, 391, 14
L. Ed. 977; Clark t. Rochester, 13 How. Prac. (N. Y.) 204, 211; Chaffee's
Appeal, 56 Mich. 244, 251, 22 N. W. 871; Kimball t. GrantsvlUe, 19 Utah, 368,
57 Pac. 1, 45 L. R. A. 628. See ^'Eminent Dotnain," Deo, Dig. {Key No,) { 2;
Cent. Dig. S 9.
11 Board of Com'rs of Grand County v. King, 67 Fed. 202, 14 C. C. A. 421 ;
Shepard v. Wood, 13 How. Prac. (N. Y.) 47 ; Hager v. Walker, 128 Ky. 1, 32
Ky. Law Rep. 748, 107 S. W. 254, 15 L. R. A. (N. S.) 195. The duty and pow-
er of ascertaining taxable values and of assessing taxes belongs to the legis-
lature, though this function may be performed through the instrumentality
of officers or agents. Mackin v. Taylor County Court, 38 W. Va. 338, 18 S. B.
G32. But the power to equalize taxes is a quasi-Judicial power, and not a legis-
lative power in such sense that it cannot be delegated to a hoard of equaliza-
tion. Foster v. Rowe, 128 Wis. 326, 107 N. W. 635. See "Taxation," Deo.
Dig. (Key No.) |f 25, 28; Cent. Dig. §§ 59, 60; '^Constitutional Law,*' Deo.
Dig. (Key No.) ^ 68; Cent. Dig. § 125.
S 159) IMDEPENDEMCS OF FEDERAL AMD STATE OOYBENMENTS. 445
this country, under our peculiar frame of government, which appor-
tions the sovereign authority between the commonwealth and the na-
tion, and gives to each, over certain subjects, an exclusive jurisdic-
tion. Whatever pertains to this exclusive jurisdiction in either is
eliminated from the taxing power of the other as completely as if it
were beyond its territorial limits. In a leading case, the following
rules were laid down as incontrovertible propositions: "That the
power to tax involves the power to destroy ; that the power to destroy
may defeat and render useless the power to create; that there is a
plain repugnance in conferring on one government a power to control
the constitutional measures of another, which other, in respect to
those very measures, is declared to be supreme over that which exerts
the control." *• As a corollary from this rule it follows that the
several states have no constitutional power to lay any tax upon the
instruments, means, or agencies provided or selected by the United
States to enable it to carry into execution its legitimate powers and
functions. This principle was applied in the celebrated case of Mc-
CuUoch V. Maryland,** which involved the constitutionality of a law
of Maryland imposing a tax upon the circulation of the Bank of the
United States. And the same doctrine was invoked in an interesting
case in California, which further illustrates the rule here in question.
It appeared that the Western Union Telegraph Company owned and
operated lines by authority of the federal government along the mili-
tary and post roads of the United States, and over, under, and across
the navigable waters thereof, and that it used its lines in the transmis-
sion of messages from state to state and to foreign countries, and that
it was likewise engaged in the transmission over its wires of messages
for, from, and between the several departments of the federal govern-
ment, giving such messages priority over all other business, and send-
ing them at rates annually fixed by the postmaster general. On this
state of facts it was considered that the company was one of the means
or instruments employed by the United States government for carry-
ing into effect its sovereign powers, and consequently, within the rule
in McCulloch v. Maryland, a state tax upon its franchise, in addition /
to the tax which, in common with others, it paid on its property, was /
beyond the power of the state and was void.*'
IS McCulloch T. Maryland, 4 Wheat. 316, 431, 4 L. Ed. 579. See ^'Taxation,'*
Dec. Dig, (Key NoJ IS 3-18; Cent. Dig. IS 3-^7.
1* 4 Wheat 316, 4 L. Ed. 579. Bee "Taxation;* Deo. Dig. (Key No.) SI fi-lB;
Vent. Dig. SI 18-30,
i*€ity and County of San Francisco t. Western Union Tel. Co.» 96 Cal.
446 THB POWEB OF TAXATION. (Ch. 15
In pursuance of the same general principle, it is held that the fiscal
agents of the United States, the army and navy, the federal judica-
ture, the public ships, the national institutions and property, and im-
ported goods in the public warehouses, are all exempt from state taxa-
tion.^* No state can impose taxes on property belonging to the
United States, no matter how it was acquired or for what purpose it is
used or held.^^ Thus, land lying within the borders of a state, but
which still constitutes a portion of the public domain, and the legal
and beneficial title to which remains in the United States, is not sub-
ject to any species of state taxation. Any assessment of taxes upon
such land, as well as any proceedings for the collection of such taxes,
are null and void, and can in no way affect the interests of the govern-
ment.^" But public lands of the United States become private prop-
erty, and liable to taxation, after tHey have been entered at the land
office and a certificate of entry obtained, although no patent may have
issued to the purchaser.^* Moreover, the loans, money, and securities
140, 31 Pac. 10, 17 L. R. A. 301. And see Western Union Tel. Co. v. Massa-
chusetts, 125 U. S. 530, 8 Sup. Ct. 961, 31 L. Ed. 790. See ''Taxation,'* Dec
Dig, {Key yo.) §§ 5-12; Cent. Dig, || 18-30,
i« Howell v. State, 3 Gill (Md.) 14. Bat a state may tax ' liquors in the
United States bonded warehouses. Garstalrs v. Cochran, 193 U. S. 10, 24
Sup. Ct. 318. 48 L. Ed. 596. See ''Taxation^* Dec. Dig, {Key Vo.) H 5-12;
Cent. Dig. S| 15-J^5.
17 People V. U. S., 93 111. 30, 34 Am. Rep. 156. Temporary buildings erected
at the Instance of the United States government for the use of employes en-
gaged on public works, under an agreement with the owner of the land that
they may be removed when no longer needed, are not realty, but personal
property of the United States and are not taxable. Andrews v. Auditor, 28
Grat (Va.) 115. Sec "Taxation," Dec. Dig. {Key No.) fi| 5, 215; Cent. Dig. S|
J7, 5i-.)5, Sol.
18 McGoon V. Scales, 9 Wall. 23, 19 L. Ed. 545 ; Van Brocklin v. Tennessee*
117 U. S. 151. 6 Sup. Ct. 670, 29 L. Ed. 845 ; Wisconsin Cent. R. Co. v. Price
County, 133 U. S. 496, 10 Sup. Ct. 341, 33 L. Ed. 687 ; People v. U. S., 93 111.
30, 34 Am. Rep. 155; Nelswanger*s Lessee v. Gwynne, 13 Ohio, 74; Dixon
V. Porter, 23 Miss. 84; Hall v. Ek)wling, 18 Cal. 619; Qulvey v. Lawrence, 1
Idaho, 313 ; Wright v. Cradlebaugh, 3 Nev. 342 ; 'Doe v. Hearlck, 14 Ind. 242 ;
Bonner v. Phillips, 77 Ala. 427 ; Wisconsin Cent. R. Co. v. Taylor Co., 52 Wis.
37, 8 N. W. 833 ; People v. Morrison, 22 Cal. 73 ; Ivinson v. Hance, 1 Wyo.
270. See ''Taxation,*' Dec. Dig. {Key A'o.) § 5; Cent. Dig. §§ Sl-45.
i» Witherspoon v. Duncan, 4 Wall. 210, 18 L. Ed. 339; Smith v. Hollis, 46
Ark. 17 ; People v. Shearer, 30 Cal. 645 ; Graff v. Ackerman, 88 Neb. 720, 57
N. W. 512; Famham v. Sherry, 71 Wis. 568, 37 N. W. 577. But although
lands sold by the United States may be taxed before the government haa
parted with the legal title by issuing a patent, this principle is applicable only
8 169) IMDSPENDBNCE OF FEDERAL AND STATE 0OTBBNMSNT8. 447
of the general government are beyond the taxing powers of the states.
It is provided by statute that "all stocks, bonds, treasury notes, and
other obligations of the United States shall be exempt from taxation
by or under state or municipal or local authority." *• Even without
any act of congress this rule would apply. On general principles of
law, no state could tax the bonds, notes, or certificates of indebtedness
of the national government, nor the notes of the national banks.*^
"The authority to borrow money on the credit of the United States
to cases where the right to the patent is complete, and the equitable title
fally vested, without anything more to be paid or any act done going to the
foundation of the right. Kansas Pac. R. €k>. v. Prescott, 16 Wall. 603, 21
L. Ed. 373. See *T(M?o*ion," Dec. Dig. (Key No.) ^5; Cent. Dig. H Sl-iS.
20 Rev. St U. S. i 3701 (U. S. Comp. St. 1901, p. 2480).
21 Weston T. Charleston, 2 Pet 449, 7 L. Ed. 481 ; Bank Tax Case, 2 Wall.
200. 17 L. Ed. 793; New York v. Commissioners of Taxes and Assessments,
2 Black, 620, 17 L. Ed. 451 ; Home t. Green, 52 Miss. 452 ; Ogden ▼. Walker,
59 Ind. 460; Campbell ▼. Centerrllle, 69 Iowa, 439, 29 N. W. 596; Dixon
County T. Halstead, 23 Neb. 697, 37 N. W. 621 ; Commonwealth t. Morrison, 2
A. K. Marsh. (Ky.) 75; Bank of Kentucky v. Commonwealth, 9 Bush (Ky.)
46; City of Pittsburg v. First Nat Bank, 55 Pa. 45; Howard Sav. Inst. v.
Newark, 63 N. J. Law, 547, 44 Atl. 654; Mutual Life & Casualty Ins. Co. t.
Halght, 34 N. J. Law, 128 ; Monroe County Sav. Bank v. Rochester, 37 N. Y.
365. Incomes derived from United States bonds are equally beyond the reach
of state taxation. Opinion of the Justices, 53 N. H. 634. And the fact that
United States bonds are above par in the market does not render the owner
liable to taxation on the excess ; the exemption from taxation Is not limited to
the par value, but applies to the entire value of the bonds. People v. Commis-
sioners of Taxes and Assessments in City of New York, 90 N. Y. 63 ; Rhode
Island Hospital Trust Co. v. Armlngton, 21 R. I. 33, 41 Atl. 570. So, also, inter-
nal revenue stamps are not taxable under state laws ; even when in the hands
of a dealer in quantities kept for sale, they cannot be taxed as stock in trade.
Palfrey v. Boston, 101 Mass. 329, 3 Am. Rep. 364. But United States treasury
checks, or orders Issued for interest accrued on registered bonds of the Unit-
ed States, where Intended for Immediate i)ayment, may be taxed by a state
in the hands of the owner. Hlbemla Savings & Loan Soc. v. San Francisco,
200 U. S. 310, 26 Sup. Ct 265, 50 L. Ed. 495. And since Act Cong. August 13,
1894 (U. S. Comp. St 1901, p. 2398) greenbacks are no longer exempt from
state taxation, as they were before. Patton v. Commercial Bank, 7 Ohio N.
P. 401 ; Howard Sav. Inst v. Newark, 63 N. J. Law, 547, 44 Atl. 654. So, al-
so, where taxable personal property Is converted Into United States securi-
ties for the express purpose of avoiding taxation, a court of equity will not
enjoin the collection of a tax assessed on such securities. Ogden v. Walker,
.'>9 Ind. 460. And a state may tax the bonds or other evidences of debt of an-
other state when owned by Its resident citizens. Appeal Tax Court of Balti-
more City V. Patterson, 50 Md. 354. See **Taxaiioih" Dec, Dig. (Key No.) H
7^12; Cent. Dig. ^^ 19-^0.
448 THE POWER OF TAXATION. (Ch. 15
is among the enumerated powers expressly vested by the constitution
in the national government, and as, within the sphere of those powers,
that government has been made supreme, the states cannot, by taxing
its notes or other obligations, impair its ability to raise money for nec-
essary governmental purposes." ** Congress has constitutional power
to declare that bonds issued by the District of Columbia, to be paid in
part by taxation of property within the District and in part by appro-
priations from the revenues of the United States, shall be exempt
from all taxation by state or municipal authority." So again, the
capital stock of the national banks is not subject to state taxation, ex-
cept in so far as congress authorizes it.^^ But the shares of such stock,
considered as the property of the individual shareholders, are taxable
by the states,*' provided, however, that such taxation shall not be at
a greater rate than is asesssed upon other moneyed capital in the hands
of individual citizens of such state, and that the shares of any national
bank owned by nonresidents of any state shall be taxed in the city
or town where the bank is located and not elsewhere.** A state can-
not tax a telegraph company on messages sent over its wires by officers
of the United States on the public business,*^ nor receipts of trans-
portation companies derived from carrying the United States mails.**
Nor can it tax the exclusive right to make, use, and vend an inven-
tion or discovery granted by letters patent of the United States.**
tt ShotweU T. Moore, 45 Ohio St 632, 16 N. B. 470. See '^Taxation,*" Dec.
Dig. (Key No.) U 49, 951; Cent. Dig. %% 119, 69^.
a« Grether v. Wright, 75 Fed. 742, 23 O. C. A. 49a See "DUtrict of Oolum-
6to," Dec. Dig. {Key No.) % S; Cent. Dig. % S; ''Taxation;* Dec. Dig. (Key No.)
I 216; Cent. Dig. | S52.
a*Tappan v. Merchants' Nat. Bank, 19 Wall. 490, 22 L. Ed. 189; Sumter
County V. National Bank of Gainesville, 62 Ala. 464, 34 Am. Rep. 30. See
"Taxation;* Dec. Dig. {Key No.) § 11; Cent. Dig. | 27.
28 First Nat. Bank v. Commonwealth, 9 Wall. 353, 19 L. Ed. 701; First
Nat Bank v. Farwell (C. C.) 7 Fed. 518 ; City of Utlca v. Churchill, 33 N. Y.
161. See ^'Taxation;* Dec. Dig. (Key No.) 1 11 ; Cent. Dig. U 21, 28.
a« Rev. St U. S. § 5219 (U. S. Comp. St. 1901, p. 3502).
«T Western Union Tel. Co. v. Texas, 105 U. S. 460, 26 L. Ed. 1067; City and
County of San Francisco v. Western Union Tel. Co., 96 Cal. 140, 31 Pac. 10,
17 L. R. A. 301. See ''Taxation,** Dec. Dig. {Key No.) § 8; Cent. Dig. % 21.
J 8 Commonwealth v. Lehigh Valley R. Co., 4 Dauph. Co. R. (Pa.) 174; West-
ern Union Tel. Co. v. Richmond, 26 Grat (Va.) 1. See "Taxation,** Dec Dig,
{Key No.) | 6; Cent. Dig. § 18.
20 Holt V. Indiana Mfg. Co., 80 Fed. 1, 25 C. C. A. 301 ; In re Sheffield (C.
C.) 04 Fed. 833 ; People v. NelT, 156 N. Y. 701, 51 N. E. 1093 ; People v. Board
of Assessors, 156 N. Y. 417, 51 N. B. 269, 42 L. R. A. 290; Commonwealth v.
§ 169) INDBPBNDBNOB OF FBDBRAL AND STATB OOTBBMHBMT8. 449
Nor can state taxation be imposed upon the officers or agents of the
general government, in respect to their connection with that govern-
ment, or the property, means, or agencies employed by them to dis-
charge their official duties, or their salaries.*®
So, again, "a tax upon persons may possibly, in some cases, tend
to embarrass the operations of either the national or state government,
in which case it would be void unless imposed by the government
which was liable to be inconvenienced by it. And on this ground it
has been held that a state tax of a certain sum on every person leaving
the state by public conveyance was invalid, the tendency being to em-
barrass the functions of the national government, by obstructing the
travel of citizens and officers of the United States in the business of
the government and the transportaticHi of armies and munitions of
war." "
But the doctrine which exempts the instrumentalities of the federal
government from the influence of state legislation not being founded
on any express provision of the constitution, but on the implied ne-
cessity for the use of such instruments by the federal government,
it follows that it must be limited by the principle that state legislation
which does not impair the usefulness or capability of such instruments
to serve that government is not within the rule of prohibition.'* Thus,
while the states cannot tax a franchise granted to a corporation by a
law of the United States •• (for, if they could, they could lay suth
Westlngbonse Electric ft Mfg. Co.. 151 Pa. 265. 24 Atl. 1107, 1111. But a fran-
chise tax imposed on a corporation for the privilege of carrying on buBlnesa
and exercising its franchises within the state, is not a tax on property, and
hence is not inralid although all the capital of the company is invested in
patents or patent rights. People v. Knight, 174 N. Y. 475, 67 N. E. 65, 63 L.
R. A. 87. See '^Taxation,*' Dec. Dig. (Key No.) §| 8, 117; Cent. Dig. §{ «i, tl4.
•0 Dobbins v. Erie CJonnty, 16 Pet 435. 10 L. Ed. 1022 ; Piimell v. Page, 133
N. G. 125, 45 8. E. 534 ; Ulsh t. Perry County, 7 Pa. fDlst. R. 48a See Melch-
er T. Boston, 9 Mete (Mass.) 73. But a United States officer is not exempt
from taxation on his household furniture. Finley v. Philadelphia, 32 Pa. 3S1.
As to post traders on Indian reservations, and the taxation of their stock
in trade, see Fremont CJounty v. Moore, 8 Wyo. 200, 19 Pac. 438; Noble v.
AmorettI, 11 Wyo. 230, 71 Pac. 879 ; CJosIer v. McMillan, 22 Mont. 484. 56 Pac
965. See "Taxation:' Dec. Dig. (Key No.) §§ 6, 59: Cent. Dig. i§ 18, 1S6.
siOooley, Taxation, p. 86; Crandall ▼. Nevada, 6 Wall. 35, 18 L. Ed. 745.
See '^Commerce," Dec. Dig. {Key No.) S§ 75, 76; Cent. Dig. H 69, 129.
»« Union Pac. R. Co. v. Penlston, 18 Wall. 5, 21 L. Ed. 787; First Nat. Bank
v. Kentucky, 9 Wall. 353, 19 L. Ed. 701. See ^'Taxation:* Dec. Dig. (Key No.) i§
5-1^; Cent. Dig. || S-45.
»» California v. Central Pac. R. Co., 127 U. S. 1, 8 Sup. Ct 1073, 32 L. Ed.
Bl.Con8T.L.(3d.Ed.)— 29
450 THB POWER OF TAXATION. (Ch. 15
onerous and prohibitive taxation on the rights granted as to render
them worthless and thus defeat the congressional grant), yet a corpora-
tion chartered by the general government, or subsidized by it, is not
exempt from state taxation unless it is employed as a means, agency,
or instrument for the exercise of the constitutional powers of the
United States.'* Further, the mere fact that a corporation is era-
ployed in the service of the United States will not suffice to exempt
it from state taxation, as an instrument or agency of the government,
when there is no legislation on the part of congress to show that such
an exemption is dieemed by it essential to the full performance of the
company's obligations to the government, and when the corporation
derives its existence from state law, and exercises its franchises there-
under, and holds its property within state jurisdiction and under state
protection.* •
The converse of this rule is equally true. That is to say, it is not
within the constitutional power of congress to so adjust the revenue
system of the United States as to interfere with or defeat the oper-
ations of the state governments within the sphere of their legitimate
activities.** Thus, a municipal corporation, being a portion of the
150 ; San Benito County v. Southern Pac. R. Co., 77 Cal. 618, 19 Pac. 827. See
Attorney General of MaBsachusetts v. Western Union Tel. Co., 141 U. S. 40,
11 Sup. Ct. 889, 86 L. Ed. 628. See **Taxation,*' Dec. Dig. {Key No.) % 9; Cent.
Dig. I 22.
«* Central Pac. R. Co. v. California, 162 U. S. 91, 16 Sup. Ot 766, 40 L. Ed-
903; Union Pac. R. Co. v. Penlston, 18 Wall. 5, 21 L. Ed. 787; Union Pac.
R. Co. v. Lincoln County, 1 Dill. 314, Fed. Cas. No. 14,378 ; State v. Newark,
39 N. J. Law, 380. See '^Taxation,'' Dec. Dig. (Key No.) § 9; Cent. Dig. $ 22.
»B Thomson t. Union Pac. R. Co., 9 Wall. 579, 19 L. Ed. 792; Santa Clara
County V. Southern Pac. R. Co. (C. C.) 18 Fed. 386; Huntington. t. Central
Pac. R. Co., 2 Sawy. 503, Fed. Cas. No. 6,911 ; People v. Commissioners of Tax-
es and Assessments, 48 Barb. (N. Y.) 157. See "Taxation,** Dec Dig. (Key No.)
i 9; Cent. Dig. § 22.
«« State Treasurer v. Wright, 28 111. 509; State v. Garton, 32 Ind. 1, 2 Am.
Rep. 315; City of Nashville t. Bank of Tennessee, 1 Swan (Tenn.) 269. See
Merchants' Nat. Bank t. United States, 101 U. S. 1, 25 L: Ed. 979. But the
exemption of a state from taxation extends no further than the functions be-
longing to a state in Its ordinary capacity, the exemption of sovereignty be-
ing limited by the attributes of sovereignty. Hence if a state unites in one
undertaking an exercise of the police power with a commercial business — ^as
in the case of the South Carolina dispensary law, where regulation of the sale
of Intoxicating liquors was effected by the. state Itself engaging in the busi-
ness and monopolizing the traffic — the United States cannot be compelled to
aid the operation of the police power by foregoing its right to lay an impost
or excise tax on the business part of the transaction. South Carolina y. Unit-
§ 160) LIMITATIONS IMPOSED BT FEDERAL CX>NSTITOTION. 451
sovereign power of the state, is not subject to taxation by congress
upon its municipal revenues.*^ And it was held that the federal in-
ccwne tax law of 1894, in so far as it levied a tax upon income derived
from municipal bonds, was invalid, as being a tax on the power of
the states and their municipalities to borrow money.* • For similar
reasons, it is not competent for congress to impose a tax upon the sal-
ary of a judicial officer of a state.'"* Nor has congress constitutional
power to impose taxation on the process or proceedings of the state
courts.**
LIMITATIONS IMPOSED BT FEDERAL CONSTITUTIOH.
160. Tlie power of tazatloa poMOMod "bj ike seTerttl stAtoo is Umitedy
in eertaln important partievlars, hj ipeeille prorisioas of tlie
federal eonatitntloiu
(a) No state may, witl&oiit tke eoxiseat of oonsress, lay any imposts
or duties oa imports or exports, exeept wluit may be absolately
aeoessary for exeeatins its iaspeetioa laws*
<b) No state aiay lay aay daty <if toaaase, aaless witk tke eoaseat
of eoacress.
(o) State taxatioa may aot be so imposed as to amoaat to aa iater-
f ereaee witb f oreica or iaterstate eoaimeree.
(d) State taaatioa is iavalid if it diserimiaates asaiast tbe riffbts
aad privileces of eitiseas of otber states.
(e) No state aiay, by its system of tazatioa, deay to aay persoa or
elass of persoas tbe eqaal |iroteotioa of tbe laws, or depriTO
tbeai of tbeir property witboat due pi uutiss -^if^Jaw.
(f) State taxatioa must aot impair tbe oblisatioa of eoatraets.
j
All of these limitations upon the taxing power of the states (and
they are of the highest importance and practical interest) have been
fully considered in other parts of this book, to which the reader is
ed States, 39 Ct. CI. 257, affirmed In 199 U. S. 437, 26 Sup. Ct. 110, 50 L. Ed.
261. See **Taxation," Dec. Dig. (Key No.) || 15-18; Cent. Dig. ti 46, ^7.
«T u. S. V. Baltimore & O. R. Co., 17 WaH. 322, 21 L. Ed. 697. See **Intemal
Revenue,*' Dec. Dig. (Key No.) |§ 5, 7; Cent. Dig. if 6, 9.
ts Pollock T. Farmers' Loan & Trust Co., 157 U. 8. 429, 15 Sup. Ct 673, 39 L.
Ed. 759. See **Intem<il Revenue" Dec. Dig. (Key No.) || 5-7; Cent. Dig. %%
6, 7.
a • Collector y. Day, 11 Wall. 113, 20 L. Ed. 122; Freedman y. Sigel, 10
Blatchf. 327, Fed. Cas. No. 5,080. See **Taxation;* Dec Dig. (^ey No.) ^ 18;
Cent. Dig. ^ ^7. \
«o Smith y. Short, 40 Ala. 385. See '^Taxation,** Dec Dig. {Key No.) | 18;
Cent. Dig. | 47; '*Intcmal Revenue'*; Dec Dig. (Key No.) i 2; Cent. Dig. ,
it.
452 THB FOWBB OF TAXATION. (Ch. 15
referred. That the prohibition against laws impairing the obligation
of contracts may in some cases amount to a check upon the power of
taxation inherent in a state, will appear from an examination of the
authorities cited in the margin/^ And a state law imposing taxation
which would be repugnant to the stipulations of a treaty made by
the United States with a foreign nation would be void, for the treaty
is declared by the constitution to be the supreme law of the land, any-
thing in the constitution or laws of the state to the contrary notwith-
standing/' But the federal constitution does not prohibit a state from
taxing her resident citizens for debts held by them against a nonresi-
dent, evidenced by his bond and mortgage on land in another state.^'
XJMITATIOH8 IMPOSED BT STATE COHSTITUTIONS.
161. The leffUlatiire of a state le further oiromiiflorlbed in the ezer-
else of the sorereicm power of taxation, hy Tarlome llmitatioBS
found im the state eoaetitntioa. Whaterer these restrletioas
may 1»e« im the particular state* they mast be strietly ohserred.
162. But aa iatentioa to limit the power of taxation will noTor be
presnmed; it mnst be shown to follow from, elear and definite
provisions of the eonstitntion.
Except in so far as it is limited or restrained by the provisions of
the constitutions, the taxing power of a state is general and absolute
and extends to all persons and property within its jurisdiction.** It
may be, and usually is, restricted in various important particulars by
the provisions of the constitution, and all such limitations which are
designed for the protection of the tax payer are to be strictly con-
strued.*' But prohibitions or restrictions upon the taxing power are
*i Murray v. Charleston, 96 U. S. 432, 24 L. Ed. 760 ; Hartman v. Greenhow,
102 U. S. 672, 26 L. BcL 271. Bee ^^Constitutional Law,** Dec. Dig. {Key No.)
I 119; Cent. Dig. S 288.
*« Cooley, Tax'n, 100.
4« Klrtland v. Hotchkiss, 100 U. S. 491, 25 Ii. Ed. 55a See ''Taxation," Dec.
Dig. (Key No.) J +; Cent. Dig. % 6.
44 Sanborn y. Rice County Coin'rs, 9 Minn. 278 (Gil. 258) ; Hannibal & St.
J. R. Co. y. State Board of Equalization, 64 Mo. 294 ; In re Van Antwerp, 56
N. Y. 261 ; People v. Molloy, 35 App. Div. 136, 54 N. X. Supp. 1084 ; Catlln ▼.
Hull, 21 Vt 152; Bank of California y. San Francisco, 142 Cal. 276, 75 Pac.
832, 64 L. R. A. 918, 100 Am. St. Rep. 130. See **T aeration,** Dec. Dig. {Key
No.) §§ S-lk: Cent. Dig. §§ S-^5.
*» Denlke v. Rourke, 3 Blss. 39, Fed. Cas. No. 3,787. See '^Taxation," Deo.
Dig. (Key No.) %% S-U, 37-66; Cent. Dig. ii S-i5, 6i-132.
S§ 161-162) LIMITATIONS IMPOBED BT STATE OOKSTITUTIOIIS. 46S
not to be inferred or raised by implication from doubtful or ambiguous
terms in the constitution; on the contrary, all presumptions are in
favor of the unlimited exercise of the power.** In some states the
constitution prescribes or limits the amount to be raised by state tax-
ation in any one year; and where this is the case, any taxes levied
in excess of the fixed amount are illegal and void.*^ In several states,
the fundamental law requires that every statute imp sing a tax shall
state distinctly the object of the same, to which only it shall be ap-
, plied.*' In some, the constitution declares that poll taxes are oppres-
sive and specifically forbids their imposition.** It is scarcely tieces-
sary to say that no power resides in the legislature of any state to
override provisions of this description, imposed as limitations upon
its authority by the people themselves in framing their constitution.
Furthermore, it is a general principle that the taxing powers of a
state are limited to persons and property within and subject to its
jurisdiction. Hence it is entirely inc(xnpetent for one state to tax real
property which lies within the boundaries of another, and if an attempt
at such taxation is made, the right to tax the land in the latter state
will not be affected thereby.** For a similar reason the taxing power
of a state does not extend to intangible personal property owned by
a non-resident of the state. *^ But all real property and all personal
property of such a character as to be capable of having a situs of its
own for purposes of taxation, is taxable by the state wherein it is
found, irrespective of the domicile of the owner.** It is also within
^•Walcott y. People, 17 Mich. 68; Sonthem Ry. Co. y. 8t Oair Ck>ant7,
124 Ala. 491, 27 South. 23. See '*Tawaiion,'' Deo. Dig. {Key No.) H 5-i4, 57-
SS; Cent. Dig. $| 9-45, 64-1S2.
4T Dakota County y. Chicago, St P., H. & O. R. Co., 63 Neb. 405v 88 N. W.
668. See **Tasation,** Dec. Dig. {Key No.) 1% SOSt; Cent. Dig. U ii^t 126.
*» See Walcott v. People, 17 Mich. 68 ; Southern Ry. Co. v. Kay, 62 S. C.
28, 89 S. E. 786 ; Commonwealth y. Brown, 91 Va. 762, 21 S. EL 867, 28 L. B.
A. 110. See '*TMation," Dec. Dig. (Key No.) % 57; Cent. Dig. ^ 66.
4» Nanoe y. Howard, 1 111. 242. See **Tamation,'' Deo. Dig. (Key No.) i 66;
Cent. Dig. ^ 129.
so Winnlplaeogee Lake Cotton ft Woolen Mfg. Ca y. Gilford, 64 N. H. 887,
10 Atl. 849; Indiana y. Pullman Palace Car Co. (C. C.) 16 Fed. 193; In re
State Tax on Foreign-Held Bonds, 15 Wall. 300, 21 L. Ed. 179. Bee *'Tawa-
iion,*" Dec. Dig. (Key No.) § 20; Cent. Dig. U 61-64.
»i City of Baltimore y. Hussey, 67 Md. 112, 9 Atl. 19 ; In re State Tax <»i
Foreign-Held Bonds, 15 Wall. 300, 817, 21 L. Ed. 179. See **Tawation,'* Deo.
Dig. (Key No.) §§ 92-96; Cent. Dig. {{ 182-105.
•s Johnson y. Bradley-Watklns Tie Co., 120 Ky. 136, 27 Ky. Law B«p. 540,
454 THE POWER OF TAXATION. (Ch. 15
the power of the legislature (as will more fully appear in another
chapter) to bind the state, by contract founded on a consideration, to
exempt particular property from taxation, either for a limited period
or indefinitely. But, aside from the question of impairing the obliga-
tion of a contract, such a grant of exemption does not create a vested
right; hence it may be revoked and the property subjected to taxa-
tion."
PURPOSES OF TAXATION.
163. One InTarlaMe limitation upon tlaa power 4if tazatioB is tkat it
nmst Always be exereised for tkm beaoflt of the pablie, noTor
for the advaataffo of individuals.
164. Wl&otl&er or not a partionlar purpose of taxation is a *'pnl»lie''
pnrpose, is a question 'whieli must be determined, in tbe first
instanoe, by the lecislature. But its determination is not eon-
olusiTo. And if tbe eourts ean see tbat tbe purpose of tbe tan
is plainly and indubitably a priTate purpose, tbey will not al-
low its eolleetion.
This limitation will always exist by necessary implication. As is
said by the courts, the general grant of legislative power in the con-
stitution of a state does not authorize the legislature, in the exercise
either of the right of eminent domain or of the power of taxation, to
take private property, without the owner's consent, for any but a
public object.**
But the question, what purposes are to be considered "public,"
within the meaning of this limitation, is one which gives rise to many
controversies and not a little confusion in the authorities. A few
general rules may be laid down, which will suffice to show the lines
on which the inquiry must be conducted, and the tests usually applied
to determine the question.
85 S. W. 726 ; State v. Fidelity A Deposit Co., 85 Tex. Civ. App. 214, 80 S. W.
644. See '^Taxation," Dec, Dig, {Key No.) i§ 92-102; Cent. Dig, U 182-201.
ftt Citizens' Sav. Bank v. Owensboro, 173 U. S. 636, 19 Sup. Ct. 530, 43 L.
Ed. 840; Monaghan v. Lewis, 5 Pennewill (Del.) 218, 59 Atl. 948; Deposit
Bank of Owensboro v. Daveiss County, 102 Ky. 174, 39 S. W. 1030, 19 Ky. Law
Rep. 248, 44 L. R. A. 825 ; State v. Northern Cent. R. Co., 90 Md. 447, 45 AtL
465. See ^^Constitutional Law;* Dec. Dig, (Key No.) | 100; Cent. Dig. { 206.
»* Cole T. La Grange, 113 U. S. 1, 5 Sup. Ct. 416, 28 L. Dd. 896 ; Dodge v.
Mission Tp., Shawnee County, Kan., 107 Fed. 827, 46 a C. A. 661, 54 L. R. A.
242 ; Sutherland-Innes Co. y. Evart, 86 Fed. 597, 30 C. C. A. 305 ; Lowell t.
Boston, 111 Mass. 454, 15 Am. Rep. 39. See "Taxation,*' Dec. Dig. (Key No.)
ii 21-24, 98; Cent. Dig. U 55-58, 67.
§§ 163-164) PURPOSES OF TAXATION. i65
In the first place, in order that an object of taxation should be
public, it is necessary that it should be for the benefit and advantage
of the whole people. But it is not necessary to show that a direct
and pecuniary benefit will accrue to each person to be affected by the
tax. All citizens are interested in the general welfare of the state.
Whatever promotes the prosperity of the whole community makes for
the advantage of each. All persons are vitally concerned in the peace,
order, and good government of the country in which they live.'* In
the next place, although the proximate object of the tax may be the
benefit or advantage of an individual, it does not always follow that
the general object may not be the public welfare. For the object in
conferring this benefit upon an individual may be intimately connected
with the advantage of the whole people. For example, when the gov-
ernment assumes to make grants of land or money as bounties, or to
pay pensions to retired or disabled officers, civil or military, it is true
that the persons to receive the gift are most directly concerned. But
the grant is made upon consideration of public services rendered or
be rendered, and is calculated and intended to promote the efficiency
and fidelity of the public service by extending the hope of a reward
in certain contingencies. The only question as to such laws is there-
fore one of wisdom and expediency; it is a political question, not a
legal question.** In the next place, a "public purpose" invariably
means a purpose which concerns the aggregate of the people within
the jurisdiction of the government which authorizes the assessment.
For example, the construction of a system of sewers, or parks, or wa-
terworks, in a city, is a public purpose, so far as concerns the residents
of the city, and therefore a legitimate object of municipal taxation.
But it is not a public purpose as regards the people of the state at
large.** Hence the tax area must be restricted to the district to be
benefited. Taxation of the whole state for such a purpose would be
clearly inadmissible. And conversely, there may be a public purpose
SB New York, L. B. ft W. R. Co. t. Ck>mmissl oners, 48 Ohio St 249, 27 N.
E. 548 ; State v. Froelieh, 118 Wis. 129, 94 N. W. 50, 61 L. R. A. 345, 99 Am.
St. Rep. 986. See ^'Taxation,*' Dec. Dig. {Key No.) If 21-24, SB; Cent. Dig. H
55-58, $7.
»• Felty T. Uhler, 1 Leg. Chron. (Pa.) 273 ; Dexter v. Raine, 18 Wkly. Law
Bui. (Ohio) 61. But see In re Bounties to Veterans, 186 Mass. 603, 72 N. E.
95 ; Mead t. Inhabitants of Acton, 139 Mass. 341, 1 N. E. 413. See "Conatitu-
tional Law;' Dea Dig. (Key No.) ^ 68; Cent. Dig. H 125-121.
ST But see Kingman y. Petitioners, 153 Mass. 566, 27 N. E. 778, 12 L. R. A.
417. iSfee ''MunidpiU Corporations;' Dec. Dig. (Key No:^ | 70; Cent. Dig. 1 172.
456 THB POWBB OF TAXATION. (Ch. 15
which would serve as a basis for state taxation, but would not uphold
the taxation which its municipal corporations might lawfully vote and
collect. And so again, a tax cannot be imposed exclusively on any
subdivision of the state to pay an indebtedness or claim which is not
peculiarly the debt of such subdivision, or to raise money for any
purpose not peculiarly for the benefit of such subdivision. In other
words, if the tax be laid upon one of the municipal subdivisions of
the state alone, the purpose must not only be public, as regards the
people of that municipality, but also local.*'
We have said that the determination of the question whether or
not a particular object is a public purpose, so as to justify taxation,
belongs in the first instance to the legislature. This means that the
legislature must judge of the public nature of the proposed expend-
iture; that their determination is presumed to be correct; that it
will in any case be sufficient to authorize the persons charged with
the levy and collection of the tax in proceeding with their duties;
that when the question is presented to the courts they will decide it
as one of law, giving to the legislative action every presumption of
regularity and validity, and refusing to hold the legislative body down
to any narrow or technical rule, and not interfering unless the viola-
tion of the principle involved is clear and unquestionable.**
Among the many and varied purposes for which money is usually
raised by taxation, there are some which are unquestionably "public"
in every proper sense of the term. And there are others, in r^^rd to
which it is not always clear whether they are so far public as to con-
stitute a legitimate basis for taxation. We shall proceed to consider
some of these cases briefly. The preservation of the public peace and
the good order of the community ; provision for the due and efficient
administration of justice, the enforcement of civil rights, and the
punishment and prevention of crime ; provision for the compensation
»« Sanborn v. Rice County Gom'rs, 9 Minn. 273 (Gil. 258) ; Taylor v. Chand-
ler, 9 Heisk. (Tenn.) 349, 24 Am. Rep. 308; Wells v. City of Weston, 22 Mo.
384, 66 Am. Dec. 627; Board of Sap'ra of Livingston County v. Welder, 64
111. 427. See ^'Taxation:' Dec. Dig. {Key No.) Si 89-45; Cent. Dig. H Sa^-lOS.
»• Booth v. Town of Woodbury* 32 Conn. 118; Walker t. City of Cincinnati,
21 Ohio St 14» 8 Am. Rep. 24 ; Stockton ft V. B. Co. y. Common Council of
aty of Stockton, 41 Cal. 147, 173 ; Welmner t. Village of Douglas, 64 N. Y.
91, 21 Am. Rep. 586; Sharpless t. City of Philadelphia, 21 Pa. 147, 59 Am.
Dec 750; English v. Oliver, 28 Ark. 817; In re Jensen. 44 App. Div. 509, 60
K Y. Supp. 983 ; Dodge y. Mission Tp., Shawnee County, Kan., 107 Fed. 827,
46 C. C. A. 661, 54 L. R. A. 242; City of Minneapolis y. Janney, 86 Minn. Ill,
90 N. W. 312. Bee ^'Taxation,** Dec Dig. (Key No.) { B2; Cent. Dig. SI 55, 58.
§§ 163-164) FUBPOSE8 or taxation. 467
of public officers; for erecting, maintaining, repairing, and protect-
ing the public buildings and public property in general; paying
the expenses of legislation and of administering the laws; establish-
ing and maintaining free public schools and other public institu-
tions of learning; public charities, including the relief of paupers,
the care of the indigent sick, blind, or insane, and the maintenance
of public asylums, hospitals, and work-houses; the construction,
repair, and improvement of public roads, including highways, turn-
pikes, and paved streets in cities; the enforcement of sanitary regu-
lations, designed to protect or promote the public health ; the mainte-
nance of public parks or pleasure grounds in the cities ; the payment
of such public debts as were lawfully and constitutionally contracted!;
the enforcement or discharge of certain public obligations which,
though not legally a liability of the state or municipality, are of clear
moral obligation, — ^all these are plainly and admittedly "public" pur-
poses, and proper to be provided for by general taxation.**
But when we pass from those objects which are properly the care
and duty of the government, or which are calculated to benefit the
entire community, to those which work a benefit only to private per-
sons, we cross the line and enter upon the region of unlawful exac-
tions. For example, though it was at one time doubted whether mu-
nicipal corporations could legally donate money or issue their obliga-
tions in aid of the construction of railroads, the great preponderance
of authority, at present, is in favor of the constitutionality of stock
subscriptions by municipalities in aid of such roads, when duly au-
thorized by the legislature, and of taxation by them for the payment
of their bonds given to the railroad companies. These roads are re-
garded as improved modern highways, and although they are owned
by private corporations, they are of direct benefit to the entire people
of the districts through which they pass.** But on the other hand,
•0 Prince v. Oocfcer, 166 Mass. 847, 44 N. B. 446, 82 L. R. A. 610; City of
Minneapolis ▼. Janney, 86 Minn. Ill, 90 N. W. 312 ; Hasrer v. Kentucky Chil-
dren's Home Society, 119 Ky. 285, 26 Ky. Law Rep. 1183, 83 S. W. 605, 67 L.
R. A. 815 ; Shltz y. Berks County, 6 Pa. 80 ; Miller v. Craig, 11 N. J. Eq. 175.
See **Tawationr Deo. Dig. (Key No.) §{ 21-2^; Cent. Dig. %% 55-58.
•1 Gllman t. City of Sheboygan, 2 Black, 510, 17 L. Ed. 305; Augusta Bank
V. Augusta, 49 Me. 507 ; Walker ▼. Cincinnati, 21 Ohio St 14, 8 Am. Rep. 24 ;
Stockton ft V. R. Co. v. Common Council of City of Stockton, 41 Cal. 147. Com-
pare People ▼. Township Board of Salem, 20 Mich. 452, 4 Am. Rep. 400. See
"MurUHpal Corporationa,** Dec Dig. {Key No.) U 872-877, 96S; Cent. Dig. |i
1845-1856, 2040.
458 THB POWER OF TAXATION. (Ch. 15
it is well settled that municipal corporations, with or without the sanc-
tion of legislative authority, have no legal power to donate money,
lend their credit, or issue their obligations, to aid in the erection or
conduct of manufactories or other business enterprises owned and
controlled by private persons, or as a means of securing the location
of such enterprises in the particular community; taxation for such
purposes is not legitimate, and such obligations, if issued, are void.*'
Again, it is admittedly proper for the state, or its municipalities, to
undertake the work of draining and reclaiming marsh and swamp
lands, for the purpose of abating the nuisance which such places
create, and thereby promoting the public health, and the construction
of levees, embankments, and ditches, and in furtherance of these ob-
jects the power of taxation may be employed.** But all such works
must be public in their nature, that is, they must be for the benefit of
the whole population of the district taxed, or else the raising of
money by taxation cannot be justified. Thus, a tax to construct a
drain, on private property, in which the public are not concerned, or
of a dam which at discretion is to be devoted to private purposes, is
invalid.** So again, while it is not denied that the establishment of
free public schools, for the instruction of children of citizens in the
elementary branches of secular learning, is a proper object of taxation,
yet it is generally conceded that religious instruction does not stand
on the same basis, and cannot be provided for by the application of
•« Parkersburg v. Brown, 106 U. S. 487, 1 Sup. Ot 442, 27 L. Ed. 238; Citi-
zens' Set. & Loan Ass'n y. Topeka, 20 Wall. 655, 22 L. Ed. 455 ; Allen v. In-
habitants of Jay, 60 Me. 124, 11 Am. Rep. IKJ; Brewer Brick Co. v. Inhabit-
ants of Brewer, 62 Me. 62, 16 Am. Rep. 395; People v. Parks, 58 Cal. 624;
Cole y. La Grange, 113 U. S. 1, 5 Sup. Ct. 416, 28 L. Ed. 896 ; National Bank
of Cleveland y. lola, 9 Kan. 689. Bonds of a county issued to aid a company in
improying the water power of a riyer for the puri)08e of propelling public grist
mills are issued to aid in constructing a "work of Internal improyement," for
which taxation is lawful. Blair v. Cuming County, 111 U. S. 363, 4 Sup. Ct
449, 28 L. Ed. 457; Burlington Tp, y. Beasley, 91 U. S. 310, 24 L. Ed. 161.
Compare Osborne y. Adams County, 106 U. S. 181, 1 Sup. Ct. 168, 27 L. Ed. 129.
See **Municipal Corporations," Deo. Dig. {Key No.) §| 872-877, 96S; Cent. Dig.
ii 1845-1856, 2040.
68 Dingley y. Boston, 100 Mass. 544 ; Tide- Water Co. y. Coster, 18 N. X Eq.
518, 90 Am. Dee. 684 ; Egyptian Leyee Co. y. Hardin, 27 Mo. 495, 72 Am. Dec.
276. See '* Drains," Dec. Dig. (Key No.) { 66; Cent. Dig. ^ 72.
•4 People y. Board of Supers of Saginaw County, 26 Mich. 22 ; Attorney
General y. Eau Claire, 37 Wis. 400. Sec ''Drains," Dec. Dig. (Key No.) | 6;
Cent. Dig. | S.
§§ 165-166) EQUALITT AND UNIFOKMITT IN TAXATION. 469
public money.*' In further illustration of this difference, it may be
noticed that while public parks, since they contribute so largely to the
public welfare in a variety of ways, especially in the large cities, are
proper objects for the expenditure of public funds, yet it is no part
of the office of government to provide amusements for the people.
Thus, it is held that a city has no authority to furnish an entertain-
ment for the citizens and guests of the city, on a public holiday, at the
public expense.**
EQUAUTT AHD UlflFORMITT IH TAXATIOH.
105* la auuty of the atates, in pursuaiieo of a genmrml mlo of Justioo
•ad sonad pabUe policy, tl&o ooastitatioaa provide that taza-
tioa shall be eqaal aad aaif ona throachoat the state* or
throaffhoat eaeh aiaaieipality lovjias a tax.
166« This proTisioa is iateaded as a s^^o aad staadard for the aotioa
of the ]^ecislatare, bat eaaaot be aiade a test of the Talidity of
a tax law, ia the eoarts, aaless ia eases of a very cross aad pal"
pable vielatioa of its iajaaetioas*
General Principles.
"Equality" in taxation means that, as nearly as may be practicable,
all the citizens should be called upon to pay taxes, which taxes shall
be strictly proportioned to the relative value of their taxable property.
"Uniformity" in taxation means that all taxable articles, or kinds of
property, of the same class, shall be taxed at the same rate; though
different articles may be taxed at different amounts, provided the
rate is uniform on the same class to all persons.*^ But perfect equality
or uniformity is not practicc^Uy attainable; approximation to it is all
that can be secured under the best devised scheme of taxation. The
rule does not require exact or mathematical equality.** Further, it
•« Cooley, Tax'n, 118.
•« Hodges V. City of Buffalo, 2 Denlo (N. Y.) 110. Bee '^MunUHpal Corpora-
tions,*' Dec, Dig. (Kty No,) | 860; Cent, Dig, | 1816.
«T Norrls v. Waco, 57 Tex. 635, 641 ; Sherlock v. Winnetka, 68 111. 630. The
tax must be UDlform throughout the tax district involved. A state tax must
be apportioned uniformly through the state ; a county tax through the county ;
a city tax through the city. City of East Portland v. Multnomah County, 6
Or. 62. See ^'Taxation,** Dec Dig. (Key No.) H 89-45; Cent. Dig. H 68-lOS.
•s Commonwealth v. People's Five Cents Savings Bank, 5 Allen (Mass.) 428 ;
Inhabitants of Cheshire v. Berkshire County Com'rs, 118 Mass. 386; Crozer
V. Feople. 206 111. 464, 69 N. E. 480 ; Comer v. Folsom, 13 Minn. 219 (Gil. 205).
Bee '^Taxation;' Dec Dig. (Key No.) i% S9-i5; Cent. Dig. i| 68-109.
460 THB POWBB OF TAXATION. (Ch. 15
rests within the exclusive power and jurisdiction of the legislature
to decide for what purposes, at what times, and in what manner, rev-
enue shall be raised by taxation, and to select the property or objects
to be taxed ; and in these matters it cannot be controlled or interfered
with by the courts.** And if there is no provision in the constitution
of the particular state requiring that taxes shall be equal and uniform,
they cannot be held void on that ground, the matter being left to the
justice and fairness of the legislature.''* But on the other hand, if
the constitution does make this requirement, any tax law which evi-
dently and palpably violates it will be adjud|ged unconstitutional.^^
IVhat Taxes Intended.
The principle (or constitutional rule) is meant to cover all the or-
dinary and usual forms of taxation on property, but does not apply
to extraordinary or uncommon kinds of taxation.^* It does not apply
to taxes levied in the exercise of the police power and designed for
protection or regulation rather than for revenue;^* nor to license
taxes imposed as a condition on the right to pursue a particular avoca-
tion, or taxes on trades or professions generally; ^* nor to a tax on
corporations which is imposed on their franchises or business or their
right to exercise their corporate privileges, rather than on their prop-
erty as such ; ^* nor, unless so specified, does a constitutional rule of
this kind apply to taxes levied by municipal corporations for their
local purposes.^* It is also held that inheritance or succession taxes,
•• City of Athens ▼. Long, 54 Ga. 330. See ^^Constitutional Law,"* Deo, Dig.
{Key No.) { 68; "Municipal Corporations;* Dec. Dig. (Key No.) % 967; Cent.
Dig. i 206S.
TO State y. Travelera' Ins. Co., 78 Conn. 255, 47 Atl. 299, 57 L. R. A. 481.
See ^'Taxation,'' Dec Dig. (Key No.) §{ S9-45; Cent. Dig. H 68-lOS.
Ti State V. Tucker, 56 S. O. 516, 35 S. B. 215; Patterson v. Temple, 27 Ark.
202. See '^Taxation,*' Dec Dig. (Key No.) {§ S9-45; Cent. Dig. {§ 68-lOS.
72 Ottawa County Com'ra y. Nelson, 19 Kan. 234. See **Tawation,*' Dec Dig.
(Key No.) § 40; Cent. Dig. S 68.
T 8 Thomas v. Moultrlevllle, 52 S. C. 181, 29 S. R 647. See ^'Taxation,'* Dec
Dig. (Key No.) § iO; Cent. Dig. §§ 68-70.
T4 Parsons v. People, 32 Colo. 221, 76 Pac. 666; George Schuster & Co. r.
Louisville, 124 Ky. 189, 28 Ky. Law Rep. 588, 89 S. W. 689 ; State v. Worth,
116 N. C. 1007, 21 S. E. 204. See '^Licenses," Dec Dig. (Key No.) % 7; Cent.
Dig. §1 8-lS.
7 6 Mutual Reserye Fund Life Ass'n y. City Council of Augusta, 109 Ga. 73,
35 S. £. 71 ; American Smelting & Refiuing Co. y. People, 34 Colo. 240, 82 Pac.
531. See "Taxation,*' Dec. Dig. (Key No.) § 40; Cent. Dig. ^ 100.
7« Pratt y. Jacksonyille, 36 Fla. 550, 18 South. 362; Douglass y. HarrisyiUe,
§S 165-166) EQUALrrr amd uniformttt in taxation. 461
or taxes on l^acies, are not subject to the rule requiring equality and
uniformity, because such a tax is not laid on property passing by de-
scent or devise, but on the privilege of transfer or inheritance.^^ But
a law requiring gratuitous services from a particular class of citizens
in effect imposes a tax upon them, and is void for want of equality.^*
Same — Assessments for Local Improvements.
Special assessments for local improvements, although they are sub-
ject to the rule of equality and uniformity in respect to the property
on which they are levied, are not taxes, within the meaning of the
constitutional and statutory provisions on the general subject of tax-
ation J* "The legislature, in the exercise of its power of taxation,
has the right to direct the whole or a part of the expense of a public
improvement, such as the laying out, grading, or repairing of a street,
to be assessed upon the owners of lands benefited thereby; and the
determination of the territorial district which should be taxed for a
local improvement is within the province of legislative discretion." ••
But the constitutional principle under consideration requires that,
when the class of persons who are to bear the expense is once ascer-
tained, the assessment shall be made among them, not arbitrarily,
but according to the relative value of their property to be benefited
by the improvement.**
ClassHication of Persons and Property.
This constitutional requirement does not prevent the legislature from
arranging the different subjects of taxation into distinct classes and
9 W. Va. 182, 27 Am. Rep. 548 ; Ollkeson v. Frederick Justices, 13 Grat (Va.)
577. See **Taxation,'' Dec Diff. (Key No.) % 40; Cent. Dig. % 71.
TT Union Trust C6. v. Wayne Probate Judge, 125 Midi. 487, 84 N. W. 1101 ;
In re Morris' Estate, 188 N. G. 259, 50 S. E. 682 ; State v. Henderson, 100 Mo.
190, 60 S. W. 1093 ; State ▼. Ferris, 63 Ohio St 814, 41 N. E. 579, 30 L. R. A.
218 ; Gelsthorpe r. Fumell, 20 Mont 299, 51 Paa 267, 39 U R. A. 170 ; In re
Macky's Estate (Oolo.) 102 Pac. 1075. See ^'Taxation,** Dec Dig. (Key No.) {
SS9; Cent. Dig. 1 1674.
Ts Webb T. Balrd, 6 Ind. 18. See "Taxation^'' Dec Dig. (Key No.) § 40; dent.
Dig. ^ 68.
19 On the distinction betwe^i taxes properly so called and local assess-
ments, see Roosevelt Hospital y. New Tork, 84 N. Y. 108; King v. Portland,
2 Or. 146; Palmer ▼. Stumph, 29 Ind. 829; Hale y. Kenosha, 29 Wis. 599;
Ridenour t. Saffln, 1 Handy (Ohio) 464. See ''Municipal Corporatione," Dec
Dig. (Key No.) || 405-448; Cent. Dig. §{ 1000-1070.
80 Spencer t. Merchant, 125 U. S. 345, 8 Sup. Gt 921, 31 L. Ed. 763. See
** Municipal Corporatione;' Dec Dig. (Key No.) % 407; Cent. Dig. | lOOS.
81 Taylor y. Palmer, 81 Gal. 240. See "Municipal Corporatiom,'* Dec Dig.
(Key No.) i ^67; Cent. Dig. H IHO, 1111.
462 THB POWBR OF TAXATION. (Ch. 15
making discriminations in the rate of tax imposed upon the several
classes, if it be done in pursuance of a fair and reasonable system.^*
Such a distinction may be made, for instance, between debts owing
from indlividuals and those due from corporations ; *• between real
and personal property ; •* between domestic and foreign corpora-
tions ; *• between railroad companies and other kinds of corporate
organizations ; *• between different trades, occupations, or pursuits ; "^
or between the different counties of the state on the basis of their pop-
ulation.** But the ground of classification, whatever it may be, must
rest on some sound reason of public policy or some substantial differ-
ence of situation or character, and not be merely arbitrary, invidious,
or unreasonable; •• and further, the burden of taxation must be equal
and uniform as to all persons or property within the limits of the
same class.**
82 City of New Orleans y. Kaufman, 29 La. Ann. 2S3, 29 Ahl Rep. 328;
State V. Lathrop, 10 La. Ann. 398 ; State v. Kruttschnitt, 4 Nev. 178 ; Beals v.
State (Wis.) 121 N. W. 347. Bee **Tawation,** Dec. Dig, (Key No,) § 42; CenU
Dig. % 90.
«» Commonwealth v. Lehigh Val. R. Co., 129 Pa. 429, 18 Atl. 406. Bee "Tax-
ation," Dec. Dig. {Key ^o.) § 42; Cent. Dig. S 94.
«* McLendon v. Lagrange, 107 Ga. 356, 33 S. E. 405 ; Missouri, K. & T. R.
Oo. V. Board of Com'rs of Miami County, 67 Kan. 434. 73 Pac. 103. But see
Oilman v. Sheboygan, 2 Black, 510, 17 L. Bd. 305. See "Taxation," Dec. Dig.
{Key No.) {§ 40, 42; Cent. Dig. SS 72, 90-95.
86 Bacon v. Board of State Tax Comers, 120 Mich. 22, 85 N. W.4 307, 60 L. R.
A. 321, m Am. St Rep. 524. Bee "Taxation," Dec. Dig. {Key No.) § 42; CenU
Dig. §§ 92, 93.
80 State Board of Assessors v. Central R. Co., 48 N. J. Law, 146, 4 Atl. 578w
See "Taxation," Dec. Dig. {Key No.) { 42; Cent. Dig. §§ 90-95.
87 Rosenbloom v. State, 64 Neb. 342, 89 N. W. 1053, 57 L. R. A. 922. See
Juniata Limestone Co. v. Fagley, 187 Pa. 193, 40 Atl. 977, 42 L. R. A. 442, 67
Am. St. Rep. 579. See "Taxation," Dec. Dig. {Key No.) SS 40, 42; Cent. Dig.
§§ 68-95.
88 Commonwealth v. Mann, 168 Pa. 290, 31 Atl. 1003. See "Taxation," Dec
Dig. {Key No,) § 4^; Cetit. Dig. f 95.
89 Sluger Mfg. Co. v. Wright (C. C.) 33 Fed. 121 ; People v. Henderson, 12
Colo. 369, 21 Pac. 144 ; Rosenbloom v. State, 64 Neb. 342, 89 N. W. 1053, 57
L R. A. 922 ; Central R. Co. v. State Board of Assessors, 48 N. J. Law, 1, 2
Atl. 789, 57 Am. Rep. 516 ; Nashville, C. & St. L. R. Co. v. Taylor (C. C.) 86
Fed. 168. See "Taxation," Dec. Dig. (Key No.) § 42; Cent. Dig. §§ 90-95,
»o En ting V. Hickman, 172 Mo. 237, 72 S. W. 700; Pike v. State, 5 Ark. 204;
Oeorge Schuster & Co. v. Louisville, 124 Ky. 189, 28 Ky. Law Rep. 588, 89 S.
W. 689; Attorney General v. Winnebago Lake & F. R. Plank Road Ca, 11
Wis. 35. see "Taxation," Dec. Dig. (Key No.) |§ 40, 42; Cent. Dig. || 68-95.
g§ 165-166) KQUALITT AND UNIFORMITT IN TAXATION. 463
Assessment and Equalisation.
The requirement of equality and uniformity applies primarily to
the law under which taxes are imposed, not to the administration of
it.*^ But if assessors or boards of equalization intentionally and sys-
tematically adopt and follow rules which tend to defeat the constitu-
tional requirement, and are in fact calculated to bring about inequali-
ties and % want of uniformity, this may render the entire assessment
illegal and justify the interference of the courts.**
Exemptions.
The rule of equality and uniformity may be said generally to de-
mand that all persons who are liable, or all property which is liable,
to taxation should be called upon to bear a share of the public bur-
dens. Yet the exemption of persons or property from taxation will
not invariably or necessarily violate this rule. Especially is this the
case where the exemptions were made by reason of a public benefit or
other adequate consideration moving to the state from the parties ex-
empted. And the general principle is not to be taken so strictly as to
deny the validity of the exemptions usually made for special reasons
of public policy, such, for example, as the mechanic's tools^ household
furniture to a limited extent, the property of the very poor, and the
property of religious, educational, and charitable associations.**
Commutation of Taxes.
Commutation of taxes is not in general either unconstitutional or
productive of inequality or a want of uniformity. For example, where
a tax is levied in labor or anything else than money, and the privilege
is extended to the tax payer of commuting the tax by the payment of
an equivalent in money, such a provision is valid and legal, provided
the privilege is offered to all who are called upon to pay the tax, with-
•1 Spencer v. People, 68 111. 510 ; Dundee Mortgage & T. I. Ck). v. School
Dist. No. 1 (C. C.) 21 Fed. 151. See ''Taxation,*' Dec. Dig. {Key No.) §§ 37-45;
Cent. Dig. §§ 68-109.
•2 Marsh v. Board of Sup'rs of Clark County, 42 Wis. 502; McTwlggan v.
Hunter, 18 R. I. 776, 30 Atl. 962 ; State v. Osbom, 60 Neb. 415, 83 N. W. 357 ;
Andrews v. King County, 1 Wash. St. 46, 23 Pac. 409, 22 Am. St. Rep. 13G:
Lively V. Missouri, K. & T. Ry. Co. of Texas (Tex.) 120 S. W. 852. 8ee "Taxa-
tion;' Dec. Dig. {Key No.) ff 37-45; Cent. Dig. §§ 68-103.
•« W. C. Peacock & Co. v. Pratt, 121 Fed. 772, 58 C. C. A. 48 ; High r. Shoe-
maker, 22 Cal. 363 ; People ▼. Miller, 84 App. Div. 168» 82 N. Y. Supp. 621 ;
City of New Orleans v. Davidson, 30 La. Ann. 554. But see Town of Jackson-
vlUe V. McConnel, 12 111. 138 ; Ex parte Jones, 38 Tex. Cr. R. 482, 43 S. W.
513. See ''Taxation;' Dec Dig. {Key No.) fj 191-251; Cent. Dig. §| 307-415.
464 THB POWBB OF TAXATION. (Ch. 15
out partiality or exception.** So it is within the power of the legis-
lature to enact that a railroad company shall have immunity from
state and county taxation upon a quarterly payment of a certain amount
in commutation, the right being reserved on the part of the state to
annul the agreement at any time.**
Province and Duty of the Courts.
The courts have no power, on the application of an individual, to
declare a tax illegal and void, merely because it is made to appear
that some other method of levying the contribution, or apportioning
the individual shares of the public burden, would probably or certainly
have secured a more exact justice and equality. But still, when the
particular case is on its face so palpably oppressive and unequal as to
furnish conclusive evidence that equality was not sought for but
avoided, and that confiscation, instead of lawful taxation, was de-
signed, then it is the right and duty of the judiciary to declare that the
legislative body has overstepped the limits of its legal discretion.**
DOUBUB TAXATIOH.
167* Double taacatloii is forbidden hj the eoiutitiitlons of some statest
and in others ie held a violAtion of the rale of equality and
nnifoniity.
168. To a eertain extent it is a neeessary resvlt of any oomprehensiTe
seheme of taacation; and there is no nnlawfvl dnplieation of
taxes in assessing the same property in different Jnrisdietions,
or in the hands of different persons to whom it represents dis-
tinet Talnes.
169. Bnt the presumption is always against the intent to impose
donble taxation, and a law will not be so eonstmed as to pro-
dnee this resnlt nnless required by its plain and express tei
•4 Cooper V. Ash, 76 lU. 11 ; Hunsaker v. Wright, 30 111. 146 ; Daughdrlll
v: Alabama Life Ins. & Trust Co., 31 Ala. 91 ; Gardner v. State, 21 N. J. Law,
557. See ''Taxation;* Dec. Dig. {Key A'o.) § 19k: Cent. Dig. § SIO; ''Consti-
tutional Lav>,** Dec Dig. {Key No.) § 205; Cent. Dig. f 608.
•tt Neary v. Philadelphia, W. & B. R, Co., 7 Houst (Del.) 419, 9 Aa 405.
See "Taxation,'* Dec. Dig. {Key No.) S 191; Cent. Dig. § S07.
»• Appeal of Hopkins, 77 Conn. 644, 60 Atl. 657 ; State v. District Court of
Hennepin County, 33 Minn. 235, 22 N. W. 625 ; Commonwealth ▼. People's Five
Cents Savings Bank, 5 Allen (Mass.) 436; Dundee Mort, T. I. Oo. v. School
Dist. No. 1, Multnomah County (C. C.) 19 Fed. 359 ; Slack v. Maysville & L. R.
CJo., 13 B. Mon. (Ky.) 1. fifes "Taxation,** Deo. Dig. (Key No.) §S ^-+5; Cent.
Dig. H 6i-103,
S§ 167-169) DOUBLE TAXATION. 465
The constitutions of some of the states contain express prohibitions
against double taxation ; *^ in others, such a prohibition is considered
to follow as a corollary from the requirement of equality and uniform-
ity; *^ but in some duplicate taxation is not unconstitutional, and the
question of its imposition is held to be one of expediency for the con-
sideration of the legislature, and not one of power for the considera-
tion of the courts.** Universally, however, it is considered unjust,
unfair, and unreasonably burdensome, and the courts will avoid it
by construction when possible ; that is, it will never be presumed that
the legislature intended to impose double taxes, but on the contrary,
a statute will not be held to produce that result unless it is so required
by its plain, express, and unmistakable terms.^** Nevertheless it is
not practically possible to avoid double taxation entirely. Any com-
prehensive system of taxation, and particularly where taxes are laid
upon both tangible and intangible personal property, will result in
some duplications of the burden ; and this is not a fatal objection to
a revenue law.***' And further, where the same property represents
distinct values belonging to different persons, the fact that each is
taxed on the value which the property represents in his hands does not
constitute double taxation.*** Thus, a tax may be laid on mortgages,
•TClty and €k>iinty of San Francisco v. Mack«y (G. O.) 22 Fed. 602. Bee
"^Tarnation," Dec Dig. {Key No,) J 47; Cent. Dig. | 10k.
•8 Ellis y. Frazier, 88 Or. 462, 63 Pac. 642, 53 L. R. A. 454. Bee "'Taxation,''
Dec. Dig. {Key No.) | ^7; Cent. Dig. If lOk-lH.
•» People V. Roberts, 157 N. Y. 677, 51 N. B. 1008 ; Toll Bridge Co. ▼. Os-
bom, 35 Ck>nn. 7 ; New Jersey R. & Transp. Go. ▼. Collectors of East, Fifth,
and Ninth Wards of City of Newark, 25 N. J. Law, 815 ; Pacific Nat Bank
of Tlacoma t. Pierce County, 20 Wash. 675, 56 Pac. 936. Bee ''taxation,*' Dec.
Dig. {Key No.) S 47; Cent. Dig. %% lOh-lU.
100 Salem Iron Factory Co. ▼. Danvers, 10 Mass. 514 ; Boston Water Power
Go. T. Boston, 9 Mete. (Mass.) 199 ; Nashua Savings Bank t. Nashua, 46 N. H.
389 ; Wright ▼. LouisvlUe & N. R, Co., 117 Fed, 1007, 54 a C. A. 672 ; First
Nat Bank y. Douglas County, 124 Wis. 15, 102 N. W. 815; BeU t. Watson.
8 Lea (Tenn.) 828; Commonwealth y. Fall Brook Coal Co., 156 Pa. 488, 26
Atl. 1071; Golding y. Collector of Borough of Chambersburg, 87 N. J. Law,
258; Rockingham Ten Cent Say. Bank y. Portsmouth, 52 N. H. 17; Osbom
y. New York A N. H. R. Co., 40 C«nn. 491 ; Board of Revenue of Montgom-
ery County y. Montgomery Gaslight Co., 64 Ala. 269 ; Com. y. Walsh's Trustee
(Ky.) 117 S. W. 898. Bee **Taxa4ion,*' Dec. Dig. {Key No.) §| 47, 58; Cent. Di4f.
H lOk-m. 1S5.
101 Augusta Bank y. Augusta, 86 Me. 255, 259. Bee "Taxation," Deo. Dig.
{Key No.) J 47; Cent. Dig. || 104-114'
lot United States Electric Power & Light Co. y. Stote, 79 Md. 63, 28 Atl.
76a Bee "'Taxation,*' Dec. Dig. {Key No.) § -J7; Cent. Dig. | 104.
Bl.Con8T.L.(8d.Ed.) — 80
466 THE POWER OF TAXATION. (Ch. 15
or debts secured by mortgage, although at the same time the real es-
tate covered by the mortgage may be taxed to the owner of the equity
of redemption at its full value.*®* To tax the capital stock of a cor-
poration and also the property in which that capital is invested would
be double taxation and contrary to the rule which forbidis it.*** But
the capital stock of a corporation, considered as an asset of the com-
pany, is a different thing from the aggregate of the shares of stock,
in the hands of the stockholders and considered as their individual
property, and both may be taxed.*** So also there is no constitutional
objection to imposing a license tax on the privilege of conducting a
given business and also an ad valorem tax on the property employed
in that business.*** And it is not double taxation where the same
article or property is taxed in two states, where each has a right to
tax it on account of its situs or the domicile of the owner. **^ And
a tax may be levied on income derived from property, although the
corpus of the property has also been taxed.***
TAXATION AND BEPBESEHTATIOH.
170* It ifl a fundamental maziai of republican soTenunent that taxa-
tion and representation ehonld so tosethor. Bnt tliio means
that the loeal lesielatnre should mahe the looal law*, inelnd-
ins tax la««. It does not mean that a tan lav is inTalid un-
less trwerj person who is liable to paj a part of the tan had
a Tote in the election of the lesislatiTC body irhich imposed it.
108 People V. Whartenby, 38 Cal. 461; Lamar v. Palmer, 18 Fla. 147; Ap-
peal Tax Court of Baltimore City v. Rice, 50 Md. 302; People v. Board of
Sup'rs, 71 Mich. 16, 38 N. W. G39; Stumpf v. Store (Mich.) 120 N. W. 6ia See
''Taxation:' Dec. Dig, {Key Ko,) i 47; Cent, Dig, § 107,
10* Frederick County Com*rs v. Farmers' & Mechanics* Nat. Bank, 48 Md.
117 ; Lewlston Water & Power Co. v. Asotin County, 24 Wash. 371, 64 Pac.
544. And see City and County of San Francisco v. Mackey (C. C.) 22 Fed.
602; Cheshire County Tel. Co. v. State, 63 N. H. 167. See ''Taxation^' Dec,
Dig. (Key No.) § 47; Cent, Dig, § 109,
lott State V. Bank of Commerce, 95 Tenn. 221, 31 S. W. 993; City of Mem-
phis V. Ensley, 6 Baxt. (Tenn.) 553. 32 Am. Rep. 532. See "Taxation,** Dec,
Dig. {Key A'o.) f 47; Cent, Dig. § 110.
loe Morgan v. Commonwealth, 98 Va. 812, 35 S. E. 448; State v. Jones,
9 Idaho, 693, 75 Pac. 819; City of New Orleans v. People's Ins. Co., 27 La.
Ann. 519. See ^'Taxation,** Dec. Dig, {Key yo,) § 47; Cent, Dig, i 108.
yr 107 Qrlggsry Const. Co. v. Freeman, 108 La. 435, 32 South. 399, 58 L. R. A.
' 349; State v. Fidelity & Deposit Co., 35 Tex. Civ. App. 214, 80 S. W. 644. See
^'Taxation,** Dec, Dig, {Key No.) { 47; Cent, Dig, f§ 105, 106.
108 City of Memphis v. Ensley, 6 Baxt (Tenn.) 553, 32 Am* Rep. 532. See
•^Tarnation:* Dec Dig. {Key No.) | 47; Cent. Dig. | IIS.
§ 171) TAXATION UNDBK THE FOLIOS POWEB. 467
That taxation without representation is vicious in principle and
contrary to the fundamental principles of a free and representative
government, being liable to despotic abuse, is the unanimous declara-
tion of our courts as well as of publicists.*** But while tax laws are
to be so construed, if possible, as not* to impose taxes without the
consent of the people taxed or of their immediate representatives,***
still this maxim of government does not prevent the imposition of
taxes upon the property of persons who have not the right to vote,
such as infants, married women, aliens, and the inhabitants of the
District of Columbia.***
TAXATIOH UNPEB THE POUOE POWER.
171* Betide the s^neval power of tazatioii, the etote luM power to im-
pose burdeuy in the aatiure of taxes, mpon epeeial ooevpatione
or speeial kinds of propertj» with a view rather to resnlation
than to roTonne, nnder the power of poliee.
License fees, occupation taxes, inspection fees, and other flke ex-
actions, which are not imposed for the purpose of raising revenue, but
for the proper regulation of matters deemed essential to the public
safety, health, or welfare, are not "taxes" in the ordinary and proper
sense of that term, and are not governed by the constitutional rules
and maxims applicable to taxation, but by those which define and limit
the exercise of the police power.***
!©• Harward v. St. Clair & M. I>evee & Drainage Co., 51 111. 130; Gage t.
Graham, 57 111. 144; Keasy r. Bricker, 60 Pa. 9; Cooley, Taxation, p. 58. See
**Taxatkm,'* Dec. Dig, (Key Xo.) U 4» SO; Cent. Dig. S§ 4. SO.
110 Keasy v. Bricker, 60 Pa. 9. See **Bountie8,** Deo. Dig. (Key No.) | 1;
Cent. Dig. | 8.
111 Smith V. Macon, 20 Ark. 17; Wheeler y. Wall, 6 Allen (Mass.) 658;
Loughborough v. Blake, 5 Wheat. 317, 5 L. Ed. 9& See "Taxation,** Dec. Dig.
{Key No.) §§ 59. 219; Cent. Dig. §§ 198, 969; "^DiBtrict of Columbia^ Cent.
Dig. I 9.
lis Yoongblood v. Sexton, 32 Mich. 406, 20 Am. Rep. 654; Willis y. Stand-
ard Oil Co., 50 Minn. 200. 52 N. W. 652 ; Lonisiana State Board of Health y.
Standard Oil Co., 107 La. 713, 31 South. 1015; Stete y. Bizman. 162 Mo. 1,
62 S. W. 828 ; Pace y. Burgess, 92 U. S. 372, 23 L. Ed. 657 ; O'Maley y. Bor-
ough of Freeport, 96 Pa. 24, 42 Am. Rep. 527; In re Danyille Rolling Mill
Co. (D. C.) 121 Fed. 432; Tenney y. Lenz. 16 Wis. 566; City of Burlington y.
Bumgardner, 42 Iowa, 673. See "Tawation," Dec. Dig. (Key No,) | 40; Cent.
Dig. a 69, 70; "Licefwe*." Dec. Dig. {Key No.) § i; Cent. Dig. | i; **In-
Bpection,'* Dec. Dig. (Key No.) §| 2, 6; Cent. Dig. U 2, 12.
468 THS RIGHT OF EMINENT DOMAIN. (Ch. 16
THB RIGHT OF EMINENT DOMAIN.
172. Definition and Nature of the Power.
173. Constitutional Provialons.
174. By Whom the Power la Exercised.
175. Legislative Authority Neceaaarj.
178. Strict Oonatruction of Statutea.
177-170. The Purpose muat be Public.
18D. What Property may be Taken.
181. Appropriation to New Uaea.
182. The Taking.
188. Oonsequentlal Injurlea.
IBL Oompensation.
DEFINXTIOll AND NATURE OF THE POWEB.
17& Tkm rislit of eBdaeat domain ia the right of the aatlom or tho
state, or of those to wIlobi the power lias boea lawfully delo«
sated, to eondosna priTOto property to pnblie ase, aad to ap-
propriate the owaership aad possession of snek property for
snek nse, npon paying to tlie owner a dne oompensation, to bo
asoortalned aeoordlns to law.
There has been a certain ambiguity in the use of the term ''eminent
domain" in consequence of a confusion between the power and juris-
diction which the state exercises over the public property, such as the
public or navigable waters of the state and tide lands or sea shore,^
and public parks or reservations, and the right and power of the
state to assume the ownership of that which before was private prop-
erty. But it is not an accurate use of language to apply the term
"eminent domain" to such property as is owned directly by the govern-
ment and which has not yet passed into any private ownership. Such
property is more correctly described as the "national domain" or the
"public domain," as the case may be, and the power of the nation or
of the state over it is best designated as "territorial sovereignty." The
1 Webber v. State Harbor CJom'ra, 18 Wall. 57, 21 L. Bd. 798; Pollard v.
Hagan, 8 How. 212, 11 L. E}d. 565 ; Ormerod v. New York, W. 9. & B. R. Co.
(G. a) 13 Fed. 370. See **Eminent Domain;' Dec. Dig. {Key No.) {{ 1, 4; Cent.
Dig. H i. fi; i^
8 172) DSFlMinON AND MATUBB OF THI POWEB. 469
word ''eminenty'' in thb connection, implies a power or title which
is paramount to some other power or title. It implies that the land
is held in private ownership, but that there exists in the state a
higher claim, namely, the right to divest that ownership and vest the
title in the state, when the public exigencies demand it, and upon
making just compensation. The true idea of the power of eminent
domain is that it is a right in the government, acting in the interest
of the whole public, to force the owner of property to sell the same
to the public, from whom his title originally came, and subject to whose
needs it is always held.* It also follows that this power is an inherent
and necessary power of sovereignty, and is not created by the consti-
tutions. In fact, the constitutions merely recognize its existence and
then proceed to guard the citizen against its arbitrary or unjust exer-
cise, by providing that it may not be wielded except for the benefit of
the public and that compensation shall not be withheld.'
The power of eminent domain, being an inherent attribute of sov-
ereignty and a necessary power of the state, the preservation of which,
unimpaired and unfettered, is essential to the growth and welfare of
the community, is inalienable. That is to say, no legislature can have
power, by any grant or contract, to surrender or bargain away the
power of eminent domain so as to bind the state, in the future, to re-
frain from its exercise when a proper and necessary occasion shall
arise.*
That this power is to be distinguished from the power of taxation
has been explained in the chapter dealing with the latter power. In
paying taxes, the citizen contributes his just and ascertained share to
the expenses of the government under which he lives. But when his
s Ck>nsumer8* Gas Trust Co. y. Harless, 131 Ind. 44d» 29 N. B. 1062^ 16 L. R.
A. 505 ; In re Board of Water Supply of City of New York, 58 Ifisc. Rep.' 581,
100 N. T. Supp. 1036 ; Woodmere Cemetery y. Roulo, 104 Mich. 695, 02 N. W.
1010. Bee *'Bminent Domain,** Dec. Dig. (Key No.) ^ 1; Cent, Dig. | i.
» Cincinnati, I. & W. R. Co. y. ConnersvlUe, 170 Ind. 316, 83 N. E. 503; Con-
sumera* Gas Trust Co. v. Harless, 181 Ind. 446, 29 N. E. 1062, 16 Ia R. A. 606 ;
Central Branch Union Pac. R. Co. y. Atchison, T. & 8. F. R. Co., 28 Kan. 453 ;
Samlsh Riyer Boom Co. y. Union Boom Co., 32 Wash. 586, 73 Pac. 670; Pot-
latch Lumber Co. y. Peterson, 12 Idaho, 769, 88 Pac. 426, 118 Am. St Rep.
233. See '*Bminent Domain;* Dec. Dig, {Key Vo.) 1 1; Cent. Dig, f i.
« VlUage of Hyde Park y. Oakwoods Cemetery Ass'n, 119 lU. 141, 7 K. E.
627 ; Commonwealth y. Broad St Rapid Transit St R. Ca, 219 Pa. 11, 67 Atl.
958; HoUister y. State, 9 Idaho, 8, 71 Pac. 541. See ^'Eminent Domain;* Dec
Dig. (Key No.) i 4; Cent. Dig. | IB; ''OonatUtUional Law,** Deo. Dig. (Key
Vo.) I 50; Cent. Dig. {{ 48> Jfi*
470 THB BIGHT OF EMINENT DOMAIN. (Ch. 16
property is taken under the power of eminent domain, he is compelled
to surrender to the public something over and above his due propor-
tion, for the public benefit, and for which he receives a direct pecuni-
ary compensation.* This power is also to be distinguished from the
power to regulate the use of private property, to the end that such use
shall not be detrimental to the public safety, health, or morals. Regu-
lation of this kind and for this purpose is justified as an exercise of
the police power, but it does not amount to an expropriation of the
property or a devesting of the title, and hence does not require com-
pensation in money.*
COKSTITUTIOHAI. PROVISIONS.
173. In tl&e flfth amendaieat to the federal eonstitutioa it is declared
that priTate propertj shall not be tahea for public nse without
Just oompensatioa. And the eonstitatioBs of all the states
oomtaia similar svuuraaties.
The provisions of the fifth amendment were intended only as a
limitation upon the powers of the general government, and do not
affect the several states.^ But all the states have been careful to in-
corporate in their constitutions such provisions as would sufiice to
extend a similar protection to private property against the exertion
of their own sovereign powers.* In some of the states, the guaranty
is in the same words as are employed in the federal constitution. In
B Board of Com'rs of Jackson County ▼. State, 147 Ind. 476, 46 N. B. 908 ;
Kimball v. GrantsvUle City, 19 Utab, 368, 57 Pac. 1, 45 L. R. A. 628 ; Roberts
V. Smith, 115 Mich. 5, 72 N. W. 1091. See "Eminent Domain,'* Dec. Dig. (Key
No.) § 2; Cent. Dig. §f 9-12.
• Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct, 581, 41 L. Ed.
979 ; People r. lUinols Cent. B. Co., 235 111. 374, 85 N. E. 606, 18 L. B. A. (S.
S.) 915 ; State v. Robb, 100 Me. 180, 60 Atl. 874 ; State v. Main, 69 Conn. 123,
37 Atl. 80, 36 L. B. A. 623, 61 Am. St. Rep. 30 ; Sprague v. Dorr, 185 Mass. 10,
60 N. B. 344 ; Stone v. Frltts, 169 Ind. 361, 82 N. E. 792, 15 L. R. A. (N. S.)
1147 ; Atlantic, S. R. & G. B. Co. v. State, 42 Fla. 358, 29 South. 319, 89 Am.
St Rep. 233; Houston & T. a R» Co. v. Dallas, 98 Tex. 396, 84 S. W. 648, 70
L. B. A. 850; Noble State Bank v. Haskell (Okl.) 97 Pac. 590. See **Emin€nt
Domain,** Deo. Dig. (Key No.) § 2; Cent. Dig. §§ 4-S.
1 Kimball ▼. GrantsvUle City, 19 Utah, 368, 57 Pac, 1, 45 L. R. A. 628. See
"Eminent Doma4n,** Dec. Dig. {Key No.) §§ 2, 3; Cent. Dig. S IS.
8 Southern Illinois & M. Bridge Co. v. Stone, 174 Mo. 1, 73 S. W. 453, 63
L. B. A. 801. See "Eminent Domairh'* Dec. Dig. (Key No.) i 10; , Cent, Dig.
II S5-48.
§ 174) BT WHOM THE POWER IS EXEROISEDi 471
Others, it is somewhat more comprehensive, declaring that no man's
property shall be taken, damaged, or destroyed for public use without
just compensation being made. In many of the states, the compensa-
tion for property so taken must be determined by a jury, and in the
same and some other states, the compensation must be paid to the pri-
vate owner before the taking. In addition, the provisions of the
fourteenth amendment to the federal constitution, requiring "due
process of law" and the "equal protection of the laws," are applicable
to condemnation proceedings under the power in question.*
BT WHOM THE POWER 18 EXERCISED.
174. The power of emineiit domain, boinc ^ut attribute of uarereigntjf
beloBC* prliaarlly to orory M^^fwemment mm saoh. It is Test-
ed in—
(a) The sov^nunent of the Vnited State*, so far mm may be neeeeeary
for the proper perf ormanee of its dmtiee and fiinctiont.
(b) The KOTemment of eaeb of the states.
(e) Mnnieipal corporations, when deles^ted to tbeai hj the legisla-
ture for their appropriate purposes.
(d) PriTate corporations which discharge a public duty or are de-
signed to promote the public conTcnienee, under a similar dele-
gation.
The United States.
Within its own sphere, and with reference to its own constitutional
duties and functions, the government of the United States is sovereign,
and therefore must possess the power of eminent domain, as well as
all other sovereign powers. Whenever it may be necessary to appro-
priate private property for the carrying on of any of the proper un-
dertakings or offices of the general government, that government may
exercise its pow6r of eminent domain, as well within the limits of a
state as in the districts subject to its exclusive jurisdiction, and the
consent or co-operation of the state is not required.^* For instance,
• Backus y. Fort St. Union Depot Co., 169 IT. S. 557, 18 Sup. Ct 445, 42 L.
Bd. 853 ; Haling y. Kaw Valley IL & Imp. Co., ISO U. S. 559, 9 Sup. Ot. 603,
82 Lw Ed. 1045 ; Baker y. Norwood (G. 0.) 74 Fed. 997 ; Scott y. Toledo (O. G.)
d6 Fed. 385, 1 L. R. A. 68& See "Constitutional Law,** Dec. Dig. {Key No,)
n W7. 228, 280, 281; Cent. Dig. H 877-890.
10 Kohl y. United States, 91 U. S. 367, 23 L. Ed. 449; Darlington y. United
States, 82 Pa. 382, 22 Am. Rep. 766; People y. Humphrey, 23 >flch. 471, 9
Am. B^ 94; Town of Nahant y. United States, 136 Fed. 273, 70 a a A. 641,
472 THB RIGHT OF EMINENT DOMAIN. (Ch. 16
the federal authorities may proceed directly, by their own officers and
courts, and without the intervention of the state, to cond;emn and
appropriate private property, anywhere situated, for post-offices, court-
houses, forts, arsenals, light-houses, or military roads.
Municipal Corporations,
It is entirely proper, and in accordance with the principles of the
constitution, that municipal corporations should be authorized to ex-
ercise the power of eminent domain for the benefit of their own re-
stricted "public," and in furtherance of the objects for which a share
of government is committed to them. In the exercise of this power,
just as in the case of taxation, a use may be local and yet public. That
is, it may be public, in a proper sense, although it- does not directly
concern the entire population of the state, if it does concern the en-
tire population of a district or division of the state. Hence cities,
towns, counties, school districts, and other municipal corporations may
be authorized to appropriate private property for such uses as streets,
parks, public buildings, school houses, water works and the like. But
this power is not inherent in municipalities, and cannot be exercised
by them without statutory authority,** and in particular, express legis-
lative authority is necessary for the condemnation by a municipal cor-
poration of property beyond its corporate limits.**
Private Corporations.
Moreover, the right to exercise this power may be delegated by the
legislature to private corporations which, although their business is
pursued for purposes of gain, yet stand in such a relation to the public
that they may be considered as promoting the public convenience, or
discharging a public office or duty, or carrying on works which are
of general public utility. Such are railroad companies, bridge and
turnpike corporations, gas companies, water companies, electric light
and power companies, irrigation companies, and many others of the
kind now generally spoken of as "public service corporations." *■
69 L. R. A. 723; Alexander ▼. United States, 39 Ct CI. 383. See **Etninent
Domain^' Dec. Dig. (Key No.) § 5; Cent, Dig. §§ 19-23.
11 Louisville & N. R. CJo. v. Louisville (Ky.) 114 S. W. 743; Stowe v. Town
of Newborn, 127 Ga. 421, 56 S. E. 516^ City of Jackson v. Williams, 92 Mlsa.
301, 46 South. 551 ; Shoe v. Nether Providence Tp., 3 Pa. Super. Ct 137. See
"Eminent Domain,** Dec. Dig. (Key No.) § P; Cent. Dig. §f 27-S4.
isPuyallup V. Lacey, 43 Wash. 110, 86 Pac. 215. See "Eminent Domain,**
Dec. Dig. (Key No.) { 9; Cent. Dig. §§ 27-Sh
IS Lake Koen Navigation, Reservoir & Irrigation Co. v. Klein, 63 Kan. 484,
65 Pac. 684 ; Southern IllinolB & M. Bridge Co. y. Stone, 174 Mo. 1, 73 S. W.
§ 174) BY WHOM THE POWER IS EXERGISSD. 473
The right of a company to exercise the power of eminent domain may
pass by a sale and conveyance of its property and franchises to a
new corporation ; ^* but a lessee of a public service corporation has
no right, merely as such lessee, to exercise the power of eminent do-
main possessed by the lessor.*'
Foreign Corporations,
In the absence of constitutional inhibition, it is competent for a legis-
lature to authorize a foreign corporation to exercise the power of
eminent domain for public uses within the state ; but no such power
can be claimed by a foreign corporation on the mere ground of inter-
state comity, or by virtue of the rights which it possesses under its
charter, or on any other basis than that of express l^slative grant
or consent.**
Private Persons,
In some rare and exceptional cases natural persons, as individuals,
are permitted to exercise the power of eminent domain, but only when
the property taken is intended to be devoted to a public service or a
general public benefit, as might be the case if the condemnation were
effected by a public service corporation, and never for their private
benefit or advantage.*^
468, 68 L. R. A. 801 ; In re East Canada Ore^ Electric Light ft Power Co.,
49 Misc. Rep. 565, 99 N. Y. Supp. 109 ; Petition of Johnstown, I. & W. Turn-
pike Oo^ 5 Pa. Super. Ct 65 ; Jacolw t. Cleanrlew Water Supply Co., 220 Pa.
38a 69 Aa 87a 21 L. R. A. (N. S.) 410; Alfred Phosphate Go. v. Duck River
Phosphate Go. (Tenn.) 118 S. W. 410; Wisconsin River Imp. Go. ▼. Pier, 137
Wis. 325^ 118 N. W. 857, 21 L. R. A. (N. S.) 53a See Louisiana Navigation
& Fisheries Go. t. DouUnt, 114 La. 906, 38 South. 6ia See **Efninent Do-
main,'* Dec Dig. {Key yo.) 1 10; Cent. Dig. H 35-48.
i« Brlnkerhoff v. Newark & H. Traction Go., 66 N. J. Law, 47a 49 Atl. 812.
See **Eminent Donuiin,** Dec. Dig. (Key No.) § 10; Cent. Dig. §| 57, S8.
IB Western Union Tel. Go. v. Pennsylvania R. Go., 195 U. S. 591, 25 Sup. Gt.
150, 49 L. Ed. 832. See "Eminent Domain,** Dec. Dig. {Key No.) | 10; Cent.
Dig. I 5a
i« Golunibns Waterworks Go. v. Long, 121 Ala. 245, 23 South. 702; Ghestatee
Pyrites Co. V. Gavenders Greek Gold Min. Co., 119 Ga. 354, 46 S. E. 422, 100
Am. St Rep. 174 ; Illinois State Trust Co. v. St. Louis, I. M. & S. R. Go., 208
lU. 419, 70 N. E. 357 ; Southern Illinois & M. Bridge Co. v. Stone, 174 Mo. 1,
73 S. W. 453, 63 L. R. A. 301 ; Helena Power Transmission Co. v. Spratt, 35
Mont lOa 88 Pac. 773, 8 L. R. A. (N. S.) 567. Central Union TeL Go. v. Go-
17 Beveridge v. Lewis, 137 Gal. 619, 70 Pac. 10S3. 59 L. R. A. 581, 92 Am. St
Rep. 188; Ortiz v. Hansen, 35 Colo. 100, 83 Pac. 964. See **Em4nent Domain,'*
Dec Dig. (Key No.) 1 11; Cent. Dig. f| 49, 50.
47'^ THB BIOHT OF BMINBNT DOBCAIN. (Ch. 16
X£OI8ULTIVE AUTHOBITT NE0E88ABT.
175* Tli« power of ominoat doauda earn be ezorolflod oaly ia pamaaoe
of lesi'lAtiTO aathorityy 'aad oa tbo ooeasioas aad ia thit aiodos
d«flsiiAtod hj the lesislatvre.
The power of eminent domain is indeed inherent in the sovereignty,
but it remains formless and inactive until it is called into q[>eration
and directed to its object by the legislative power of the state. It is
for the legislature to prescribe the occasions for its exercise, as also
the conditions upon which the power may be resorted to, and the
methods and instrumentalities by which its application to the property
of individuals shall be compassed. It is also for the state, by its legis-
lative body, to determine when the exigency arises which will justify
calling this power into exercise. And it may likewise dietermine the
specific objects to which it shall be directed.** That is, the legisla-
ture may decide what parcels of land, or other property, shall be taken
for a given public use, and the owner has no constitutional right to
demand a hearing and an opportunity to contest the necessity of the
particular appropriation which affects his interests. In practice, how-
ever, the determination of this question is usually referred to commis-
sioners, before whom all the parties in interest have a right to appear
and be heard, or to a jury.**
lumbus Grove, 28 Ohio Cir. Ct. R. 181 ; Burnett v. Postal Telegraph Cable Co.,
79 a C. 4^2, 60 S. B. 1116 ; Evansvllle & H. Traction Co. v. Henderson Bridge
Co. (C. a) 13^ Fed. 973, Id., 141 Fed. 51, 72 O. C. A. 539. See ^'Eminent Do-
main," Dec. Dig, (Key No.) S 10; Cent. Dig. §§ 36, S8.
18 Shasta Power Co. v. Walker (C. C.) 149 Fed. 568; Mercer County v.
Wolff, 237 111. 74, 86 N. B. 708 ; Gillette v. Aurora Rys. Co., 228 111. 261, 81
N. B. 1005 ; Hayford t. Bangor, 102 Me. 340, 66 Ati. 731, 11 L. R. A. (N, S.)
940 ; Zlrcle v. Southern R. Co., 102 Va. 17, 45 S. B. 802, 102 Am. St. Rep. 805 ;
Painter v. St. Clair, 98 Va. 85, 34 S. B. 989. See **Eminent Domain,** Dec.
Dig. (Key No.) S 1; Cent. Dig. §§ Jf, 2.
i*The question of the necessity of the appropriation (whether or not par-
ticular property shall be taken), aside from the question of the amount of com-
pensation to be made, Is not one which must be determined by a jury, or in
the forms of Judicial proceedings, unless the constitution of the state specifi-
cally so provides. No constitutional right of trial by Jury can be here claimed,
unless explicitly given. "The appropriation of the property is an act of public
administration, and the form and manner of its performance are such as the
legislature in its discretion may prescribe." People y. Smith, 21 N. Y. 595.
See U. S. v. Harris, 1 Sumn. 21, Fed. Cas. No. 15,315. But if the constitution
provides that the question of appropriation shall be submitted to a Jury, the
§ 176) STRIOr OONSTRUCnON OF STATUTSa. 475
STRICT OONSTBVOTIOH OF STATUTES.
176. Statvtet avthorisiaK the ezevclM of this power will be strletly
eonstrued, and thoee eharged with the exeevtion of the powev
will he held to a ttriet eompliaaee with all the eonditions aad
reqviremeata of the statute*
Since the exercise of the power of eminent domain is in derogation
of common right, and is a high exertion of the paramount rights of
the sovereign, it must be hedged about with all needful precautions
for the protection and security of the citizen. And for this reason
it is held that statutes authorizing the appropriation of private property
for public use must be strictly construed.*® An intention to authorize
such taking will never be presumed, nor deduced from anything but
clear and unambiguous terms. Especially is this the case with regard
to the delegation of this power to private corporations. Such a cor-
poration will never be presumed to be invested with the power. If it
claims the right to condemn property for its uses, it must show a grant
of such power.** Nor will a grant of the power be enlarged by mere
implication. Thus, if the charter of a corporation gives it the right
to appropriate private property for certain enumerated purposes, it
will possess no authority to take land for any other purposes, and no
such extension of its powers can be deduced by mere inference from the
requirement Is mandatory. Arnold v. Decatur, 20 Mich. 77. See "Jury** Dec.
Dig. (Key No.) § 19 ; Cent. Dig. § 111.
«o Harvey v. Aurora & G. R. Co., 174 111. 295, 51 N. B. 163 ; Gillette v.
Aurora Rys. Co., 228 111. 261, 81 N. B. 1005 ; Goddard v. Chicago & N. W. R.
Co., 104 111. App. 526 ; Painter v. St Clair, 98 Va. 85, 34 S. E. 980 ; Norfolk
& W. R, Co. y. Lynchburg Cotton Mills Co., 106 Va. 376, 56 S. E. 146 ; Chesa-
peake & O. R. Co. ▼. Walker, 100 Va. 69, 40 9. E. 633 ; Edgerton ▼. Huff, 26
Ind. 35 ; People v. GloversvlUe, 128 App. DIv. 44, 112 N. T. Supp. 387 ; John-
son City Southern R. Co. v. South & W. R. Co., 148 N. O. 59, 61 S. E. 683;
Central Union Tel. Co. v. Columbus Grove, 28 Ohio Clr. Ct R. 131 ; Puyallup
y. Lacey, 43 Wash. 110, 86 Pac. 215. See **Eminent Domain^** Dec, Dig. {Key
No.) § 8; Cent. Dig. §f 25, SO, Sh 4S, U.
ti Phillips V. Dunkirk, W. & P. R. Co., 78 Pa. 177; Allen ▼. Jones, 4T Ind.
438; Southern Illinois A M. Bridge Co. v. Stone, 174 Mo. 1, 73 S. W. 453, 63
L. R. A. 301 ; Claremont R. & Lighting Co. v. Putney, 73 N. H. 431, 62 Atl.
727; Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429. 107 N.
W. 405, 5 Lu R- A. (N. S.) 638 ; Mull v. Indianapolis & C. Traction Co., 169
Ind. 214, 81 K B. 657. See **Eminent Domain;* Dec Dig. {Key No.) § 8; Cent.
Dig. f 44.
476 THB RIGHT Or BMINENT DOMAIN. (Ch. 16
terms of the grant** Furthermore, the laws authorizing the exercise
of this power must be exactly complied with, in respect to all the
forms, conditions, and provisions made for the benefit and protection
of the individual, before his property can lawfully be taken.**
THE PUBPOSE IfflTST BE PUBUO.
177* TIm yvrpose for ^vkioh tkm powov of eminent doauda is to bo oz«
oroiflod must bo piiblio» and mot meroly for tbo boaoflt of a
yriTftto porooa.
178. Tbo qmootion wbotbor or not tbo purposo lo a pvblie omo lo a
Jmdiolal qmootion, mpom wbiob tbo dotormlamtioa of tbo lost*-
latiuro lo BOt ooboIiuIto.
179. Tbo pvrpoao wimj bo loool (tbat lOt oonlbiod to a miudoipol sub-
dlTioioiL of tbo ttato), provided it lo poblio witb roforoaoo to
tbo poopio iabAbitiss tbo dlotriot to bo affeotod.
The Purpose to be Public.
The power of eminent domain, like that of taxation, cannot be
exercised by the state for the benefit of one or more particular in-
dividuals. There is no power in any state government to take the
property of one man and give it to another, or to compel one man
to sell his property to another, or to authorize one person to appro-
priate the property of another, even though compensation be made ; **
St Cnrrier y. Marietta A G. R. Go., 11 Ohio St. 228. And see South & N.
A. R. Ck>. v. Highland Ave. & B. R. Co.. 119 Ala. 105, 24 South. 114 ; Water-
bury v. Piatt Bro«. & Co., 75 Conn. 387, 53 Atl. 958, 60 L. R. A. 211, 96 Am. St
Rep. 229 ; Minnesota Canal & Power Co. v. Pratt, 101 Minn. 197, 112 N. W.
395, 11 L. R. A. (K. S.) 105. See **Emin€nt Domain,'* Deo. Dig. {Key No.) |
10; Cent. Dig. {§ S5-4S.
2s Manda y. Orange, 75 N. J. Law, 261, 66 Atl. 917. Bee ^'Eminent Domain,**
Deo. Dig. (Key No.) § 167; Cent, Dig. If i52, 45S.
24 Clark V. Nash, 198 U. S. 361, 25 Sup. Ct 676, 49 I*. Bd. 1085 ; Gaylord y.
Chicago Sanitary Dlst, 204 111. 576, 68 N. B. 522, 63 L. R. A. 582, 98 Am. St
Rep. 235 ; Brown v. Gerald, 100 Me. 351, 61 Atl. 785, 70 L. R, A. 472, 109 Am.
St. Rep. 526 ; Rockingham County Light & Power Co. y. Hobbs, 72 N. H. 531,
58 Atl. 46 ; United States y. Baltimore & O. R. Co., 27 App. D. C. 105 ; Pere
Marquette R. Co. y. United States Gypsum Co., 154 Mich. 290, 117 N. W. 733 ;
People y. Board of R. Com'rs, 192 N. Y. 573, 85 N. E. 1114 ; Grande Ronde
Electrical Co. y. Drake, 46 Or. 243, 78 Pac. 1031 ; Fallsburg Power & Mfg. Co.
y. Alexander, 101 Va. 98, 43 S. E. 194, 61 L. R. A. 129, 99 Am. St Rep. 855;
Heneh y. Pritt, 62 W. Va. 270, 57 S. E. 808, 125 Am. St. Rep. 966. See ^^Emi-
nent Domain,'* Deo. Dig. (Key No.) {§ 12-15; Cent. Dig. §§ 7, 51-64,
$§ 177-179) THE PUBPOSB MU0T BE FUBIJO. 477
and there is no rightful exercise of the power of eminent domain
where the appropriation is made substantially for the benefit or ac-
commodation of a single individual, though there may be an incidental
or prospective advantage to the community.'^ On the other hand,
the purpose will be considered public if it actually concerns or promotes
the welfare or convenience of the whole people, notwithstanding one
or more individuals may be peculiarly and directly benefited.** But
where the power is committed to corporations organized primarily for
their own profit, through the medium of an undertaking which is in-
tended or ads4)ted to minister to the wants or the convenience of the
general public (as in the case of public service corporations generally),
the benefits of it must not be confined to a select few, but the general
public must have a right to resort to the property acquired by con-
demnation, or to demand the service of the company, not as a mere
favor, or by the permission or consent of the company, but as a right,
and the property must be impressed with such a public use as will
bring and keep it within the regulation and control of the legislature.*^
But the ''public,*' in this sense, need not include the entire population
of the state or community ; the requirement of a public use being satis-
fied if the right to resort to the property or employ the service of the
company is common, that is, equally available to all those, without
discrimination, who desire to enjoy its advantages and will pay the
reasonable and proper charges.**
Si Stratford ▼. Greenboro, 124 N. G. 127, 82 S. B. 894; Pere Marquette R.
Oo. ▼. United States Oypsnm Ck>., 154 Mich. 200, 117 N. W. 733. 8te **Bminmt
Domain,*' Dec, Dig. {Key No,) ^ U; Cent. Dig. fi 54.
>• Ryan y. LouisTme ft N. Terminal Ck)., 102 Tenn. Ill, 00 S. W. 744, 45 L.
R. A. 803 ; Wisconsin River Imp. CJo. ▼. Pier, 187 Wis. 826, 118 N. W. 857, 21
L. R. A. (N. S.) 53a See "Eminent Domain," Deo. Dig. (Keg No.) | IS; Cent.
Dig. II 51^S.
ST Fallsbnrg Power ft Mfg. Co. ▼. Alexander, 101 Va. 08, 48 S. B. 104, 61
L. R. A. 120, 00 Am. St. Rep. 855; Minnesota Canal ft Power Co. v. Koochi-
ching Co., 07 Minn. 420, 107 N. W. 406, 5 L. R. A. (N. S.) 638 ; Oaylord y.
Chicago Sanitary Dist, of Chicago, 204 111. 576, 68 N. E. 522, 63 L. R. A. 582,
W Am. St Rep. 205 ; Shasta Power Co. y. Walker (Q C.) 140 Fed. 568; Chesa-
peake Stone Co. y. Moreland, 126 Ky. 656, 104 S. W. 762, 31 Ky. Law Rep.
1075, 16 L. R. A. (N. S.) 470 ; Alfred Phosphate Co. y. Duck Riyer Phosphate
Co. (Tenn.) 113 S. W. 410. See **Emineni Domain," Dec. Dig. (Keg No.) || IS,
U; Cent. Dig. || Sl-^k-
ss Wisconsin Riyer Imp. Co. y. Pier, 187 Wis. 325, 118 N. W. 857, 21 L. R.
A. (N. S.) 538; Madera Ry. Co. y. Raymond Granite Co., 3 Cal. App. 668, 87
Pac. 27. See ''Eminent Domain;* Dec Dig. (Key No.) || IS, U; Cent. Dig. %%
478 THE BIGHT OF EMINENT DOMAIN. (Ch. 16
A Judicial Question,
The mere fact that the legislature, in a statute, declares that a given
use is a public use, and authorizes the taking of private property for
it, does not necessarily make the use public, nor render lawful the ap-
propriation of private property for it. It is well settled that, if in fact
the use is public, the decision of the legislature that the public needs
require the taking of private property to promote the use is final and
conclusive. But the question, whether or not a given use is a public
use, is a judicial question, and this must be determined by the courts^
on the application of the person or persons to be affected.**
Illustrations of Public Purposes.
Railroad companies, carrying on the general business of common
carriers of passengers and freight, unquestionably serve a public use
in such sense as to justify the delegation to them of the right of emi-
nent domain for their necessary purposes.'*^ But a branch or spur track
or siding, constructed for the sole purpose of carrying the product of
a single mine or factory, does not serve a public purpose.** This
«» Walker v. Shasta Power Co., 160 Fed. 856, 87 a a A. 660, 19 L. R. A.
(N. S.) 725 ; Tanner v. Treasury Tunnel, Mining & Reduction Co., 35 Colo. 593,
83 Pac. 464, 4 L. R. A. (N. S.) 106 ; Pittsburgh, Ft W. & C. R. Co. v. Sani-
tary Dlst. of Chicago, 218 111. 286, 75 N. B. 892, 2 L. R. A. (N. S.) 226; T^ke
Koen Navigation, Resenoir & Irrigation Co. v. Klein, 63 Kan. 484. 65 Pac.
684 ; Louisville & N. R. Co. v. Louisville (Ky.) 114 S. W. 743 ; Brown v. Ger-
ald, 100 Me. 351, 61 Atl. 785, 70 L. R. A. 472, 109 Am. St. Rep. 526 ; Ulmer v.
Lime Rock R. Co., 98 Me. 579, 57 Atl. 1001, 66 L. R, A. 387; Vinegar Bend
Lumber Co. v. Oak Grove & G. R. Co., 89 Miss. 84, 43 South. 292 ; SoutJiem
Illinois & M. Bridge Co. v. Stone, 174 Mo. 1, 73 S. W. 453, 63 L. R. A. 301 ;
Aldridge v. Spears, 101 Mo. 400, 14 S. W. 118 ; In re Tuthill, 36 App. Div. 492,
55 N. Y. Supp. 657 ; Apex Transp. Co. ▼. Garbade, 32 Or. 582. 52 Pac. 573, 62
L. R. A. 513 ; Jacobs v. Clearvlew Water Supply Co., 220 Pa. 388, 69 Atl. 870,
21 L. R. A. (N. S.) 410; Alexandria & F. Ry. Co. v. Alexandria & W. R. Co.,
75 Va. 780, 40 Am. Rep. 743 ; Hench v. Pritt, 62 W. Va. 270, 57 S. E. 808, 125
Am. St. Rep. 96G. See "Eminent Domain,*' Dec, Dig, {Key No,) |{ 66, 67/
Cent. Dig, {{ 165-167,
«o Walther v. Warner, 25 Mo. 277 ; Riley v. Charleston Union Station Co.,.
71 S. C. 457, 51 S. E. 485, 110 Am. St Rep. 579. See **Eminent Domain," Dec,
Dig, {Key No.) { 20; Cent, Dig, §§ 59-67.
«i Alfred Phosphate Co. v. Duck River Phosphate Co. (Tenn.) 113 S. W. 410;
Ulmer v. Lime Rock R. Co., 98 Me. 579, 57 Atl. 1001, 66 L. R- A. 387 ; People v.
Pittsburgh R. Co., 53 Cal. 694; Sholl v. German Coal Co., 118 111. 427, 10 N.
K 199, 59 Am. Rep. 379. See "Eminent Domain,'* Dec Dig, {Key No,) | 20/
Cent, Dig, |S 59-67.
§§ 177-179) THU PURPOSE MUST BE PUBLIC. 479
power may also be exercised for the benefit of turnpike roads,' • pub-
lic bridges,** ferries,** and telegraph lines." A municipal corporation
may condemn property for necessary public buildings and grounds,
such as municipal offices and jails,** hospitals for the treatment of
contagious diseases,*^ and public parks and squares advantageous to
the public for recreation, health, or business;** and lands may be
taken for a cemetery, when the general public has or may purchase
the right to bury the dead therein.** So, also, property is taken for
a public use undler a rightful exercise of the power of eminent domain,
when needed for the laying out or altering of public highways, roads,
and streets,** though it may not be condemned for the purpose of
constructing a private road or way across the lands of third persons.*.*
ss Petition of Johnstown, I. ft W. Turnpike Co., 5 Pa. Super. Ct 65. 8e6
**EminefU Domain,** Dec. Dig, (Key No.) 1 19; Cent. Dig. ff 56-^8.
S8 Soutbem lUinois & M. Bridge Co. y. Stone, 174 Mo. 1, 73 S. W. 453, 63
L. R. A. 301. Bee **EnUnent Domain," Dec. Dig. (Key No.) f 22; Cent. Dig. ff
^%, 68.
s« Pool T. Simmons, 134 Gal. 621, 66 Pac 872. See '^Eminent Domain,** Dec.
Dig. (Key No.) | 22; Cent. Dig. { €8.
«5 Western Union Tel. Co. v. Pennsylvania R. Co., 123 Fed. 33, 59 C C. A.
113 ; Mobile & O. R. Co. y. Postal Tel. Cable Co., 120 Ala. 21, 24 South. 408 ;
Pierce y. Drew, 136 Mass. 75, 49 Am. Rep. 7. Bee **Eminent Domain,** Dec.
Dig. (Key No.) % S6; Cent. Dig. { 81.
86 Mercer County y. Wolflf, 237 111. 74, 86 N. B. 708; Board of Supers of
Norfolk County y. Cox, 98 Va. 270, 36 S. E. 880. Bee **Eminent Domain,** Dec.
Dig. (Key No.) § 18; Cent. Dig. f 55.
8T Manning y. Bruce, 186 Mass. 282, 71 N. E. 537. Bee "Eminent Domain,**
Dec. Dig. (Key No.) | 18; Cent. Dig. | 55.
s 8 People y. Adirondack Ry. Co., 160 N. Y. 225, 54 N. R 680; St Louis
County Court y. Grlswold, 58 Mo. 175; Shoemaker y. United States, 147 U.
S. 282, 13 Sup. Ct. 361, 37 L. Ed. 170 ; In re Com'rs of Central Park, 50 N. Y.
493 ; Brunn y. Kansas City, 216 Mo. 108, 115 S. W. 44a But the construction
of a pleasure park by a street railway company, at its terminus in the suburbs,
is not a public purpose. Great Falls Power Co. y. Great Falls O. D. R. Co.,
104 Va. 416, 52 8. E. 172. Bee **Eminent Domain,** Dec. Dig. (Key No.) f 4I;
Cent. Dig. { 86.
•» Evergreen Cemetery Ass'n of New Hayen v. Beecher, 53 Conn. 551, 5 Atl.
853. Bee "Eminent Domain*' Dec. Dig, (Key No.) { 42; Cent. Dig. ^ 89.
40 Stratford y. City of Greensboro, 124 N. C. 127, 32 S. E. 394 ; Mendocino
County y. Peters, 2 Cal. App. 24, 82 Pac. 1122. Bee "Eminent Domain,** Dec.
Dig. (Key No.) fi 19; Cent. Dig. {§ 56-58.
«i Sadler y. Langham, 34 Ala. 311 ; New England Trout & Salmon Club y.
Mather, 68 Vt 338, 35 Atl. 323, 33 L. R. A. 569. See Robinson y. Swope, 12
Bush (Ky.) 21; Sherman y. Bulck, 32 Cal. 242, 91 Am. Dec. 577. Bee "Emi-
nent Domain,** Dec. Dig. (Key No.) 1 19; Cent. Dig. % 57.
480 THB RIGHT OF BMINBNT DOMAIN. (Ch. 16
Similar principles apply to the taking of private property for general
or public ditches and drainage systems and sewers/* and for wharves,
docks, piers, and levees/* So again, irrigation is a public use, and the
appropriation of watercourses, to the detriment of riparian owners,
it for supplying agricultural neighborhoods with water for this purpose
V is fully justified/^ So also is the business of supplying cities and
towns with water for general municipal use and for domestic constunp-
tion,^* and furnishing light to a municipality, whether it be electricity
or natural or artificial gas ; ^* and so also, according to some of the
authorities, corporations engaged in manufacturing, generating, sell-
ing, and distributing power, whether water power or electrical, serve a
public purpose and may exercise the right of eminent domain.^^ Again,
«s Bradbury v. Vandalia Levee & Drainage DIst, 236 111. 36, 86 N. B. 163,
19 L. R. A. (N. S.) 991 ; Slsson ▼. Board of Supers of Buena Vista Ck>unt7, 128
Iowa, 442, 104 N. W. 454, 70 L. R. A. 440 ; Lewis Ck>unty v. Gordon, 20 Wash.
80, 54 Pac. 779 ; atj of Valparaiso v. Hagen, 153 Ind. 337, 54 N. B. 1062, 48
L. R. A. 707, 74 Am. St Rep. 305; State ▼. New, 130 N. a 731, 41 S. B. 1033;
Village of Twin FaUs ▼. Stubbs, 15 Idaho, 68, 96 Pac. 195 ; Smith ▼. Gonld*
61 Wis. 31, 20 N. W. 369 ; Patterson ▼. Baumer, 43 Iowa, 477 ; Zimmerman
▼» Canfleld, 42 Ohio St 463. See **Em4nent Domain,'' Dec. Dig. (Key No.) |S
2»^S2; Cent. Dig. || 5, 76-78.
*» Dyer y. Baltimore (C. C.) 140 Fed. 880 ; Missouri, K. & T. Ry. Co. ▼.
Cambem, 66 Kan. 365, 71 Pac. 809. See "Eminent Domain,'' Dec. Dig. {Key
No.) II «5, SO; Cent. Dig. {{ 5. 71, 77.
«« Lax ▼. Haggin, 69 Gal. 255, 10 Pac. 674; Borden ▼. Trespalacios Rice &
Irrigation Co., 204 U. S. 667, 27 Sup. Ct 785, 51 L. Bd. 671 ; Nash y. Clark, 27
Utah, 158, 75 Pac. 371, 1 L. R. A. (N. S.) 208, 101 Am. St Rep. 953 ; Lake Koen
Naylgation, Reseryoir & Irrigation Co. y. Klein, 63 Kan. 484, 65 Pac. 684;
Prescott Irrigation Co. y. Flathers, 20 Wash. 454, 55 Pac. 635; Albuquerque
Land & Irrigation Co. y. Gutierrez, 10 N. M. 177, 61 Pac. 357. See **Eminent
Domain," Dec. Dig. (Key No.) | 29; Cent. Dig. | 76.
*»City of Rome y. Whltestown Waterworks Co., 187 N. Y. 542, 80 N. B.
1106; Jacobs y. aearview Water Supply Co., 220 Pa. 388» 69 Atl. 870, 21 L. R.
A. (N. S.) 410 ; Minnesota Canal & Power Co. v. Pratt, 101 Minn. 197, 112 N.
W. 395, 11 L. R. A. (N. S.) 105. But see Bordentown Banking Co. y. Sparhawk,
214 Pa. 334, 63 AU. 752. Bee **Eminent Domain," Dec Dig. {Key No.) | 28;
Cent. Dig. | 75.
«• In re East Canada Creek Electric Light & Power Co., 49 Misc. Rep. 565,
99 N. Y. Supp. 109 ; In re Niagara, L. & O. Power Co., Ill App. Diy. 686, 97
N. Y. Supp. 853 ; Charleston Natural Gas Co. y. Lowe, 52 W. Va. 662, 44 S. E.
410; City of Rushyille y. Rushyille Natural Gas Co., 132 Ind. 575, 28 N. B.
853, 15 L. R. A. 321 ; Walker y. Shasta Power Co., 160 Fed. 856, 87 C. C. A.
660, 19 L. R. A. (N. S.) 725. See "Eminent Domain," Dec. Dig. (Key No.) M
S4, S5; Cent. Dig. | 80.
*T Rockingham County Light & Power Co. y. Hobbs, 72 N. H. 531, 58 Atl.
46, 66 L. R. A. 581; Minnesota Canal ft Power Go. y. Koochiching Co., 97
SiS 177-179) THB FUBF08B MUST BX PUBLia 481
the question whether a given purpose is public or private may depend
on the natural resources of the state, the nature and needs of its chief
industries, and the stage of their development, the general rule being
that any use is public which tends to enlarge or develop the natural
resources and promote the productive power of the whole state or
any considerable section or region.^* In this view, the establishment
of mills, whether for sawing lumber, grinding grain, or manufactures,
may be considered a public purpose.^* So also, where lumbering is
an extensive industry, the use of the waterways for this purpose or
of lands for chutes, flumes, booms, dams, and the like, may be taken
under the power of eminent domain.*® And the same is true of the
mining industry in many of the western states.*^
Mlun. 429, lOT N. W. 405, 5 L. B. A. (N. S.) 638 (right of eminent domain may
be exercised by companies supplying electrical power, but contra as to water
power) ; Denver Power ft Irrigation Ck>. ▼. Denver & R. O. R. Co., 80 Colo. 204,
69 Pac. 668, 60 L. R. A. 888; Minnesota Canal ft Power Co. v. Pratt, 101
Minn. 197, 112 N. W. 890, 11 L. R. A. (N. S.) 105 ; Wisconsin River Imp. Co.
V. Pier, 137 Wl«. 825. 118 N. W. 857, 21 L. R. A. (N. S.) 538 ; McMiUan v. Noyes
(N. H.) 72 Atl. 759. Contra, Brown ▼. Gerald, 100 Me. 351, 61 Atl. 785, 70 L.
R. A. 472, 109 Am. St Rep. 526 ; State ▼. White River Power Co., 39 Wash.
C48» 82 Pa<c. 160, 2 L. R. A. (N. S.) 842; Yadkin River Power Co. v. Whitney
Co., 150 N. a 31, 68 S. B. 18a See ''Eminent Domain:* Dee. Dig, {Key No,) H
28, SS, S7; Cent. Dig. |{ 75, 80, 82.
« 8 Clark V. Nash, 198 U. S. 361, 25 Sup. Ct 676, 49 L. Ed. 1085; Jacobs v.
Clearview Water Supply Co., 220 Pa. 388, 69 Atl. 870, 21 L. R. A. (N. S.) 410.
See ''Eminent Domain,** Deo. Dig. (Key No,) ff IS, U; Cent. Dig. H 51-^4.
«• Lowell V. City of Boston, 111 Mass. 454, 464, 15 Am. Rep. 39. But see
Gaylord v. Sanitary Dist of Chicago, 204 111. 576, 68 N. E. 522, 63 L. R. A. 582,
98 AuL St Rep. 235. See "Eminent Domain,** Deo. Dig. (Key No.) | 57; Cent.
Dig. ^ 82.
80 Mairett V. QuUie (C. C.) 93 Fed. 847 ; In re Bums, 155 N. Y. 23, 49 N. E.
246 ; Potlatch Lumber Co. v. Peterson, 12 Idaho, 769, 88 Pac. 426, 118 Am. St
Rep. 233 ; Lancaster v. Kennebec Log Driving Co., 62 Me. 272. See "Eminent
Domain,'* Dee. Dig. (Key No.) U 2J^ 26; Cent. Dig. If 10, 12.
Bi Strickley v. Highland Boy Gold Min. Co., 200 U. S. 527, 26 Sup. Ct 801,
50 L. Ed. 581 ; Miocene Ditch Co. v. Jacobsen, 146 Fed. 680, 77 C. a A. 106 ;
Byrnes v. Douglass, 83 Fed. 45, 27 0. C A. 399; Hand Gold Min. Co. v. Par-
ker, 59 Ga. 4i9; Overman Silver Min. Co. v. Corcoran, 15 Nev. 147. But see
Sutter County v. Nicols, 152 Cal. 688» 98 Pac 872, 15 L. R. A. (N. 8.) 616.
See "Eminent Domain,** Dee. Dig. (Key No.) | SS; Cent. Dig. | 79.
Bi..GoifST.L.(3D.ED.)— ^
482 THE RIGHT OF EMINENT DOMAIN. (Ch. 16
WHAT PBOPEHRTT MAT BE TAKEK.
180. Tlie property wUeli maj 1m taken for p«bUo «m viider tke power
of eminent dommin inelndes OTerytUns irliioli is tke Bnbjeot
of priTate ownership, reeoenixed by the law, and in tbe en-
joyment of whieb tbe poeeeeeor is entitled to the proteetion
of tbe law. It inolndei—
(a) Real estate of private owners, wbetber bold in fee or by an
estate less tban tbe fee.
(b) Real property belonsing to tbe state or to tbe United States
(snbjeot to eertain restrictions),
(e) Franebises and otber incorporeal risbts of property.
(d) Easements in realty and tbe rifbt of possession and enjoyment
of tbe same.
(e) Waterconrses and streams.
(f) Materials needed in tbe eonstrvction of pvblie improrements.
Estates and Interests Less than a Fee.
In order to constitute "property," in the legal sense of the term,
it is not necessary that the person claiming compensation should be
the owner in fee simple of the land taken. The owner of an estate
for life or years, whether it be vested or contingent, and whether in
possession, or reversion or remainder, the owner of a rent or easement
affected by the appropriation of the land, a purchaser under an execu-
tory contract, and probably even a mortgagee or a judgment creditor,
would also be entitled to compensation in proportion to his interest.*'
Property of State and United States.
It would appear, at first sight, that there could be no authority in a
state to appropriate, under the power of eminent domain, property
belonging to the United States, and conversely, that the federal gov-
ernment could not authorize the taking of property belonging to a
state. But it is held that, unless the property in question has been
already devoted to some public use under the authority of, or in con-
nection with, the government of the United States, the state within
whose borders the government land lies may authorize its condemna-
tion under this power, for a public purpose, such as the construction
*« Dingley v. City of Boston, 100 Mass. 544 ; Harback ▼. City of Boston, 10
Cush. (Mass.) 295 ; Clear Creek Water Co. v. GladevlUe Imp. Co., 107 Va. 278»
58 S. B. 586 ; Hepburn v. Jersey City, 67 N. J. Law, 686, 52 Atl. 1132 ; Mur-
phy ▼. Beard, 188 Ind. 560, 38 N. El 33 ; Durgin v Mlnot, 203 Mass. 26, 89 N.
E. 1«44. See "EminetU Domcin," Deo, Dig. (fiey No.) §| 81-87, 151-157; Cent.
Dig. If U5-2S2, 408-427.
§ 180) WHAT PROPERTY MAT BE TAKEN. 4iS3
of a railroad.'* And in virtue of the control of the national govern-
ment over navigable waters, as well as its power of eminent domain,
it may authorize the construction of a bridge or other structure over
such waters, and although a particular state may be the owner of the
bed under such waters, on which the proposed structure is to rest, the
federal government is not obliged to obtain the consent or authority
of the state, or to make it any compensation.**
Franchises, Contracts, and Personalty.
In a number of the states the constitutions provide that the right
of eminent domain shall never be so construed as to prevent the legis-
lature from taking the property or franchises of incorporated com-
panies and subjecting them to public use the same as that of indi-
viduals. But even without such a provision in the organic law, fran-
chises would be subject to this power in common with all other prop-
erty within the state. Franchises are property, and there is nothing
in their nature to exempt them from the liability to appropriation
which attaches to all other property. They may therefore, if the
public need requires it, be taken for public use on just compensation
made.** A familiar example of the taking of a franchise under the
power of eminent domain is where a toll bridge, erected and main-
tained by a private corporation, is condemned and converted into a
free county or state bridge. So also the exercise of this power may,
in proper circumstances, be extended to the taking of intangible per-
8» United States t. Chicago, 7 How. 185, 12 L. Ed. 660 ; United States ▼.
Railroad Bridge Co., 6 McLean, 517, Fed. Cas. No. 16,114. The taking of pub-
lic property under the power of eminent domain is not countenanced unless
under clearly expressed or Implied authority. State v. Boone County, 78 Neb.
271, 110 N. W. 629. Land of which the state is the owner Is not to be taken
by a corporation chartered by the state. People ▼. Sanitary Dist. of Chicago,
210 m. 171, 71 N. E. 834. But a lot owned by a city may be condemned and
taken for an alley. State v. District Court of Ramsey County, 77 Minn. 248,
79 N. W. 971. See "Eminent Domain,*' Dec, Dig. (Key No,) { 46; Cent. Dig,
H 91-99.
»* Stockton V. Baltimore & N. Y. R. Co., 1 Interst. Com. R. 411. Bee **Emi-
neni Domain," Dec. Dig. (Key No.) §$ 2h 22, J^G; Cent. Dig. %% ff7%, 91-99.
»8 Central Bridge Corp. v. .\bbott 4 Gray (Mass.) 474 ; Richmond, F. & P.
R. Co. r. Louisa R. Co., 13 How. 71, 14 L. Ed. 55 ; Enfield Toll Bridge Co. ▼.
Hartford ft N. H. R. Co., 17 Conn. 40, 42 Am. Dec. 716 ; West River Bridge
Co. y. Diz, 6 How. 507, 12 L. Ed. 535 ; Commonwealth t. Pennsylvania Canal
Co., 66 Pa. 41, 5 Am. Rep. 329 ; State v. Suffleld ft T. Bridge Co., 81 Conn. 56,
70 Atl. 55. Bee ''Emineni Domain;* Dec. Dig, (Key No.) S{ 45, 48; Cent. Dig,
II 102, lOS.
484 THB RIGHT OF BMINBNT DOMAIN. (Ch. 16
sonal property of yarious sorts,** including contracts/^ and even
shares of stock in another corporation.**
Easements — Possession and Enjoyment.
It is not always necessary, in condemnation proceedings, that the
corpus of an estate or the title in fee should be taken ; for the power
of appropriation extends as well to the taking of an easement, such as
a right of way or a profit a prendre.** Moreover, every man is en-
titled by law to the undisturbed and exclusive enjoyment of his estate
and to keep out all trespassers. And this right is part of his ''prop-
erty" in his estate. Consequently, if this exclusive enjoyment of
property is taken away, there is a taking of the property, though the
title is allowed to remain in the original owner. Moreover, there are
certain easements appurtenant to real estate which are necessary to
its beneficial enjoyment, and which cannot be impaired without the
payment of just compensation to the owner of the estate. Such are
the easements of access, light, and air. The construction of a public
improvement (such as an elevated steam railroad in the streets of a
city) may destroy or materially interfere with these easements, al-
though the land itself and the buildings thereon are not taken posses-
sion of or injured except in respect to their beneficial use. These ease-
ments are "property," and may be thus taken under the power of
eminent domain, but only upon the payment of just compensation.**
Streams.
Watercourses and streams of running water, which are not navi-
gable, may be appropriated under the power of eminent domain, for
B« Dnnlap ▼. Toledo, A. A. ft G. I. Ry. Oo., 60 Bfich. 470, 15 N. W. 555. As
to professional senriceB of an attorney at law, see Board of Com'rs of Clay
County v. McGregor, 171 Ind. 634, 87 N. E. 1. See **Eminent Domain," Deo,
Dig. ^ey No.) | 48; Cent. Dig, { lOS.
87 Long Island Water Supply Co. ▼. Brooklyn, 166 IT. S. 685, 17 Sup. Ct. 718»
41 L. Ed. 1165. See ""Eminent Domain,'* Dec. Dig. {Key No.) % 45.
68 New York, N. H. ft H. R. Co. y. Offleld, 77 Conn. 417, 59 Atl. 510. See
"Eminent Domain,** Dec. Dig. {Key No.) % 45; Cent. Dig. § 106.
»» Pacific Postal Telegraph Cable Co. ▼. Oregon ft C. R. Co. (C. C.) 163 Fed.
967 ; Albright y. Sussez County Lake ft Park Commission, 68 N. J. Law, 523,
53 Atl. 612; McBwan ▼. Pennsylvania, N. J. ft N. Y. R. Co., 72 N. J. Law, 419,
60 Atl. 1130; Ray y. New York Bay E}xtension R. Co., 84 App. Dlv. 3, 53 N.
Y. Supp. 1052; Deavitt ▼. Washington County, 75 Vt 156, 53 Atl. 563. See
'"Eminent Domain,** Dec Dig. {Key No.) f 50; Cent. Dig. { 104»
•0 Lahr ▼. Metropolitan E. Ry. Co., 104 N. Y. 268, 10 N. E. 528 ; Drucker v.
Manhattan Ry. Co., 106 N. Y. 157, 12 N. E. 568, 60 Am. Rep. 437 ; GUlender
§ 180) WHAT PBOPEBTT MAT BE TAKEN. 486
such public purposes as the supplying of water to cities and towns, and
the development of irrigation works intended for the benefit of an ex-
tensive district or neighborhood. In such cases, compensation must
be made to those riparian proprietors who have, at common law, a
right to have the stream continue to flow in its accustomed channel,
and whose own private use of the water is abridged or interfered with
by the taking of the stream for public use.*^
Materials.
Such materials as may be needed in the construction of public im-
provements come within the class of subjects over which the power
of eminent domain may be exercised. Thus, timber, gravel, earth, or
stone to be used in making or mending highways, and trees, earth, and
gravel used in building a railway, may be appropriated under due
legislative authority. And in general, authority may be given to any
person or corporation engaged in works of public improvement to
enter upon adjoining lands and take therefrom such materials as are
needed for the work of construction.**
Property Already Devoted to Public Use.
Property which has already been taken under the power of eminent
domain and appropriated to a public use cannot be laken by a second
corporation and appropriated to a different public use, unless by stat-
utory authority clearly expressed,** or implied from the fact that
>. City of New York, 127 App. Dlv. 612» 111 N. Y. Bnpp. 1061. Bee *'Bmineni
Domain;* Dec Dig. (Key No.) ^ 50; Cent. Dig. % lOi.
•1 St. Helena Water Go. v. Forfoeo* 62 Oal. 182, 45 Am. Rep. 0G9; Smith ▼.
Gould, 09 WlA. 681, 18 N. W. 457 ; Lux ▼. Haggin, 69 Cal. 266, 10 Pac. 674 ;
Erie ft J. R. Go. ▼. Brown, 57 Misc. Rep. 164, 107 N. Y. Supp. 068 ; Albright y.
Sussex County Lake and Park CommlasioD, 68 N. J. Law, 623, 53 Atl. 612:
Blgelow ▼. Draper, 6 N. D. 152, 69 N. W. 570; State ▼. Superior Court of St^
yens County, 46 Wash. 500, 90 Pac. 650. See '*Sfminent Dotnain;* Dec Dig.
(Key No.) | 45; Cent. Dig. ff 95, 96.
•« Wheelock ▼. Young, 4 Wend. (N. Y.) 647 ; Posey Tp. of Franklin County
▼. Senour, 42 Ind. App. 580, 86 N. E. 440; Parsons r. Howe, 41 Me 218; Chi-
cago, M. ft St P. Ry. Co. ▼. Mason (S. D.) 122 N. W. 601. See "Eminent Do-
main," Dec Dig. (Key No.) | 51; Cent Dig. f 105.
99 EUcins Electric R. Co. v. Western Maryland R. Co. (0. O.) 168 Fed. 724 ;
EyanBYllle ft H. Traction Co. v. Henderson Bridge Co. (G. C.) 134 Fed. 973;
Starr Burying Qround Ass'n t. North Lane Cemetery Ass'n, 77 Conn. 83, 58
Atl. 467 ; OUlette v. Aurora Rys. Co., 228 111. 261, 81 N. E. 1006 ; City of Sey-
mour y. Jeffersonyille, M. ft I. R. Co., 126 Ind. 406, 26 N. B. 188; Loulsyille
ft N. R. Go. y. Loulsyille (Ky.) 114 S. W. 743 ; In re PhUadelphia, M. ft S. St
Ry. Co., 203 Pa. 354, 53 Atl. 191 ; Mays y. Seaboard Air Line Ry., 75 S. C. 455,
56 S. E. 30. See Toledo ft I. Traction Co. y. Toledo ft a I. R. Co., 171 Ind. 218»
486 THB BIGHT OF EMINENT DOMAIN. (Ch. 16
the second appropriation is absolutely necessary to accomplish the pur-
pose for which the claimant corporation was created.** But this rule
does not apply where the second use claimed or intended is of such
a character that it will not supersede, impair, or unreasonably inter-
fere with the continuance of the first use, but both may be enjoyed
concurrently,*' as, for instance, where a telegraph company seeks to
condemn a right of way for its line over or along the right of way
of a railroad company.** Nor does the rule apply where the property
sought to be taken is not in actual use by the original appropriator nor
necessary to the proper or convenient exercise, present or prospective,
of its franchises or corporate powers.*^
Extent of Appropriation.
The general rule is that no more property shall be taken under the
power of eminent domain, either in respect to quantity or interest,
than is needed for the particular purpose. As the power is founded on
necessity, so the measure of the public right, in any given case, must
be determined by the actual requirements of the public use to which
the property is to be put.** But this does not mean that the property
86 N. B. 54. See **Eminent Domain,'' Dec. Dig, {Key No.) { 47; Cent. Dig.
101-120.
• *• Western Union Tel. Co. v. Pennsylvania R. Co., 123 Fed. 33, 59 C. 0. A,
113 ; Alexandria & F. Ry. Co. v. Alexandria & W. R. Co., 75 Va. 780, 40 Am.
Rep. 743. See "Eminent Dofnain,'' Dec. Dig. {Key No.) { 47; Cent. Dig. {{
107-120.
«B Birmingham & A. A. R. Co. v. LouisTiHe & N. R. Co., 152 Ala. 422, 44
South. 679; Baltimore & O. S. W. Ry. Co. v. Board of Com'rs of Jackson
County, 156 Ind. 260, 58 N. E. 837 ; Louisville & N. R. Co. v. Louisville (Ky.)
114 S. W. 743 ; Northwestern Tel. Exch. Co. v. Chicago, M. & St. P. Ry. Co., 76
Minn. 334, 79 N. W. 315 ; State v. Superior Court for Clarke County, 45 Wash.
316, 88 Pac. 332. See "Eminent Domain,'' Dec. Dig. (Key No.) { 47; Cent. Dig.
a 107-120.
•• Pacific Postal Telegraph Cable Co. v. Oregon & C. R. Co. (C. C.) 163 Fed.
967. See "Eminent Domain," Dec. Dig. (Key No.) § 47; Cent. Dig. §§ 107, II4,
lie.
«7 Youghiogheny Bridge Co. ▼. Pittsburgh & C. R. Co., 201 Pa. 457, 51 Atl.
115 ; Wheeling Bridge Co. v. Wheeling & B. Bridge Co., 34 W. Va. 155, 11 S.
B. 1009 ; Scranton Gas & Water Co. v. Delaware, L* & W. R. Co., 225 Pa. 152.
78 Atl. 1007. See "Eminent Domain," Dec. Dig. (Key No.) { ^7; Cent. Dig. H
117, lis.
•» Highland Boy Gold Min. Co. v. Strickley, 116 Fed. 852, 54 C. C. A. 186 ;
Piedmont Cotton MUls v. Georgia Ry. & Electric Co., 131 Ga. 129, 62 S. E. 52 ;
City of Detroit v. Daly, 68 Mich. 503. 37 N. W. 11 ; Leslie v. City of St Louis,
47 Mo. 474 ; Erie R. Co. v. Steward. 170 N. Y. 172. 63 N. E. 118 ; State ▼.
§ 181) AFPBOPRIATION TO NEW USES. 487
to be taken must be absolutely necessary or indispensable to the in-
tended purpose, but reasonably necessary; the "necessity" spoken of
is not an absolute physical necessity, but one created by expediency
or reasonable convenience ; •• and it is said that a corporation having
power to condemn land for its uses should be permitted to judge for
itself what quantity of land is necessary, subject to the authority of
the courts to restrain abuse of the power J*
APPROPRIATION TO NEW USES.
181. WbeA property wUoli lias already been appropriated to pnUio
vse nader the power of eminent domain is enbseqnently ap-
propriated, under the same po'«rer» to a new^ and different me,
then the original owner, proTided an estate less than the fee
was first tahen or a portion of his land less than the whole,
will he entitled to a new assessment and payment of ooai«
pensation.
The reason for this rule is that when a part only of a tract of land
is condemned, the amount of compensation to be awarded is deter-
mined, in some measure, according to the question whether the re-
maining land will be benefited or injured by the use to which the part
taken is to be devoted. Now the first use may be of positive advantage
to the rest of the property, while the new use may be seriously det-
rimental to it At iny rate, if there is any important difference in
the two uses, this will of itself introduce new elements which should
be taken into consideration in arriving at a just estimate of the dam-
ages to be paid. The owner is therefore constitutionally entitled to a
fresh appraisement of the injuries which he sustains, in view of the
new conditions and their effect upon his estate. In cases where the
whole tract was affected by the first condemnation, but it extended only
to the taking of an estate less than a fee, the same principle applies,
but for a different reason. It is now important to inquire whether the
Superior Ck)art, Spokane County, 47 Wash. 310, 91 Pac. 968; Samish River
Boom Ck>. V. Union Boom Ck)., 32 Wash. 586, 73 Pac. 670. See "^Eminent Do-
main,*' Dec, Dig. (Key No.) I 58 : Cent Dig. {$ 14^-160.
«» Piedmont Cotton Mills v. Georgia Ry. & Electric Co., 131 Ga. 129, 62 S.
B. 52 ; Sayre v. Orange (N. J. Sup.) 67 Atl. 933 ; Aurora & G. Ry. Co. ▼. Har-
vey, 178 111. 477, 53 N. B. 331 ; In re Curran, 38 App. Div. 82, 55 N. Y. Supp.
1018. See **Eminent Domain,** Dec. Dig. (Key No.) { 58; Cent. Dig. {{ 147-160.
TO United States v. Baltimore & O. R. Co., 27 App. D. C. 105. See "Emi-
s^ent Domain,'' Dec Dig. (Key No.) H 58, 68; Cent. Dig. || 147-160, 168-170.
488 THB RIGHT OF EMINENT DOMAIN. (Ch. 16
owner's right of reverter, in case of the discontinuance of the public
use, will be affected by the new appropriation/^
Questions of this sort chiefly arise in connection with the construc-
tion of improvements in the public streets and highways. At first,
the courts were disposed to make the right of an abutting property
owner to recover damages upon the appropriation of the street to a
new or different use depend upon the question whether the fee of the
soil under the street was vested in him or in the municipality. But
the later tendency is to disregard this distinction. The now generally
prevalent doctrine is that the abutting owner, whether or not he owns
the fee of the street, has certain peculiar rights and privileges therein
which will entitle him to compensation if the street is diverted from
its original use or is cumbered with new works which materially inter-
fere with, or diminish the value of, those rights.''*
Notwithstanding some difference of opinion, it is now apparently
settled that the appropriation of a public highway for the purposes of
a plank road or turnpike is not a devotion of it to such a new use as
will require a new assessment and payment of damages to abutting
owners. And conversely, turning a turnpike road into a free and
common public highway is not appropriating any new easement so as
to entitle the owners of the fee to fresh compensation.''* And the
same is true of the laying of gas pipes in a county highway.^* Nor
is any additional servitude imposed by the appropriation of a public
highway for the use of a line of electric telegraph, by the erection of
poles and wires above the surface of the ground; and a statute au-
thorizing such appropriation is not unconstitutional because it makes
no provision for compensation to the owners of the fee in the high-
way.'* Also it is held that a street railway, where the motive power
employed is horses or electric motors, constructed under legislative
authority on the surface of a street, is not an unlawful interference
Ti State V. Superior Court of King County, 46 Wash. 516» 00 Pac. 663. Bee
"Eminent Domain,*' Dec. Dig. (Key No.) fi§ 20, 45, +7, 49.
T 2 White v. Northwestern North Carolina R. Co., 113 N. O. 610, 18 a B.
330, 22 L. R, A. 627, 37 Am. St Rep. 639. See *'Eminent Domain,*' Deo. Dig.
{Key No.) H 111-120; Cent. Dig. %% SOS-SIS.
78 state V. Maine, 27 Conn. 641, 71 Am. Dec. 80. See **Bminent Domain."
Dec. Dig. (Key No.) { 119; **Tumpikes and Toll Roads,** Cent. Dig. If 20, 85.
74 Bloomfield & R. Natural Gaslight Co. ▼. Calkins, 62 N. T. 886. See **Bmi-
nent Domain,*' Deo. Dig. {Key No.) { 119; Cent. Dig. { SIS.
7 6 Pierce v. Drew, 186 Mass. 75, 49 Am. Rep. 7. Bee ''Eminent Domain,**
Deo. Dig. {Key No.) § 119; Cent. Dig. I S12.
g 182) THK TAKING. 489
with the rights of the abutting owner, but is a street use consistent
with such rights, so that it will not entitle hini to a new assessment
and payment of damages J • But if a highway is appropriated to the
use of a steam railroad, or a street in a city to the use of such a road
(and more especially an elevated road), it is held that this is not a
legitimate use for street purposes, but the conditions are so essentially
different from those attending the first appropriation, which merely
gave a public right of passage, as to entitle the abutting owners to
compensation to the extent to which their property is injured or de-
preciated by the new use of the street.^ ^ When a railroad has been
constructed in a street, and an abutting property owner has recovered
damages therefor, this will not prevent him from claiming further
damages when another railroad seeks to build another track in the
same street* •
THB TAXZHO.
182. la ord«r to eoBAtltvte a ^Haktac*' of pvoporty uAov tho powov
of emiaoat doauUaf it is aot aoooMory tluit tko proporty slaoald
bo dsstroyody or thmt tho owaor shoald bo oatiroly dopriTod ov
disMlaod of tko ostato. It is saftoioat to oatitlo him to olaim
ooB&poasatioa if tbo work or istproToatoat for wkiok this pow-
or is ozoroisod dopriTOs klat of tko ordiaarj, aooossary, aad
boaofloial aso of tko proporty, or if its valao, for saok asos
aad parposost is dirootly aad asoossarilj dliiaiskod by tko
work ia qaostioa. Tt
f BCahady ▼. Bnshwlck R. Co., 91 N. Y. 148, 48 Am. Rep. 861 ; Hiss v. Bal-
timore & H. Fasa Ry. Co., 62 Md. 242. 86 Am. Rep. 371 ; Attorney General ▼.
Metropolitan R. Co., 125 Mass. 515, 28 Am. Rep. 264 ; People t. Ft Wayne ft
E. Ry. Co., 92 Mich. 522, 52 N. W. 1010, 16 L. R. A. 762. And see Cleveland.
C, C. ft St L. R. Co. y. Felght, 41 Ind. App. 416, 84 N. B. 16. Bee "Bmineni
Domain," Dec. Dig, (Key No.) f 119; Cent. Dig. §{ 305S07.
TT Story V. El. R. Co., 90 N. Y. 122, 43 Am. Rep. 146; White v. Northwest-
ern North CaroUna R. Co., 113 N. C. 610, 18 S. E. 330, 22 L. R. A. 627, 87 Am.
St Rep. 689; Stewart y. Ohio Rlyer R. Co., 38 W. Va. 438, 18 S. S. 604;
Crawford y. Village of Delaware, 7. Ohio St. 459 ; Lawrence R. Co. y. Wil-
liams, 85 Olilo St 168 ; Lentell v. Boston ft W. St Ry. Co., 202 Mass. 115, 88
N. E. 765. See ** Eminent Domain,'* Dec. Dig. (Key No.) f 119; Cent. Dig. |{
SIO, Sll.
78 Sonthem Pac. R. Co. v. Reed, 41 CaL 256w See ''Eminent Domain^** Dec.
Dig. (Key No.) § 120; Cent. Dig. { S19.
T» People V. Murphy, 129 App. Div. 260, 118 N. Y. Supp. 855; Hook» y.
New Haven ft N. Co., 14 Conn. 146, 36 Am. Dec. 477 ; Martin y. Fillmore Coun-
ty, 44 Neb. 719, 62 N. W. 8C3 ; Griffin y. Shrereport ft A. R. Co., 41 La. Ann.
490 THB BIGHT OF BMINBNT DOMAIN. (Ch. 16
If the rates or charges to be made by a railroad or a public-service
corporation, and which may be regulated by law, are reduced by a
statute or ordinance to a figure so low as to compel the company to
carry on its business at a loss or without fair profit, then its property
is '*taken" for public use without just compensation."* Or to take an
example of a more directly physical invasion of property, if the con-
struction of a railroad along or across a stream, or any work under-
taken ,f or the improvement of navigation, has the effect of causing the
waters to flood the lands of an adjacent owner and destroy or impair
their value, it is a "taking" of his property,' and the legislature cannot
authorize the infliction of such an injury without making provision for
compensation.*^ So, also, the diversion of a stream, when the effect
808, 6 South. ©24 ; Stockdale v. Rio Grande Western R. Co., 28 Utah, 201, 77
Pac. 849 ; Peabody ▼. United States, 43 Ct CI. 5. A law which empowers cities
to forbid the use for any business purposes of property fronting on avenues
or boulevards deprives the owners of such property of their right to the en-
joyment thereof, and Is invalid as a "taking" of their property without com-
pensation. Oity of St. Louis V. Dorr, 145 Mo. 466, 41 S. W. 1094, 42 L. R. A.
686, 68 Am. St. Rep. 575. So a statute or ordinance forbidding the erection of
signs or bill-boards on private property in a city, without regard to whether
they are dangerous, is invalid as appropriating private property to public use
without compensation. Bill Posting Sign Oo. v. Atlantic City, 71 N. J. Law,
72, 58 Atl. 342; Commonwealth v. Boston Advertising Co., 188 Mass. 348, 74
N. E. 601, 69 L. R. A. 817, 108 Am. St Rep, 494 ; Vamey & Green v. Williams
(Oal.) 100 Pac. 867, 21 L. R. A. (N. S.) 741. But see Uncoln v. Commonwealth,
164 Mass. 368, 41 N*. EI 489, where it is said that if the legislature authorizes
something to be done in the neighborhood of a person's land, which diminishes
its value, but which would not be actionable at common law if done by a neigh-
boring owner, and if the statute provides no compensation, the owner of the
land cannot claim any under the constitution, because what is done does not
amount to a taking ; and even if the thing authorized would be actionable at
common law, and a nuisance but for the statute, still it is not necessarily a
taking. See **Eminent Domain,'' Dec. Dig. {Key No.) {§ «, 96, 1S5-1S8; Cent.
Dig. §§ S-12, 249, 863-^70.
80 Matthews v. Board of Corp. Com'rs of North Carolina (C. C.) 106 Fed.
7 ; Spring Valley Waterworks v. San Francisco (C C.) 124 Fed. 574 ; Willcox
V. Consolidated Gas Co., 212 U. S. 19, 29 Sup. Ct 192, 53 L. Ed. 382. See
''Eminent Domain;' Dec. Dig. (Key No.) §{ 2, 69; Cent. Dig. {§ S-12, 171-179.
81 Eaton V. Boston, C. & M. R. R., 51 N. H. 504, 12 Am. Rep. 147. See,
also, Smith v. Oould, 61 Wis. 31, 20 N. W. 369 ; Pumpelly v. Green Bay & M.
Canal Co., 13 Wall. 166, 20 L. Ed. 557 ; Woodruff v. North Bloomfield Gravel
Mining Co. (C. C.) 18 Fed. 753 ; Williams v. United States (C. C.) 104 Fed. 50.
see ''Eminent Domain,'' Dec. Dig. {Key No.) §§ 95, 9S; Cent. Dig. || 239, 255;
••Waters and Water Courses," Cent. Dig. { 218.
§ 182) THB TAKING. 491
is to injure the property of a privsite owner, by destroying his water
power or dicpriving him of his riparian rights, is a taking of his prop-
erty under the power of eminent domain.** So again, it is held that
the construction of a public improvement (such as an elevated rail-
road in a city) which has the effect to charge the air with smoke,
gases, cinders, etc., and thus to interfere with tlie easement, belonging
to each abutting landowner, to the passage of pure air, or which im-
pairs his easement of light, either by reason of the structure itself
or by the passage of trains upon it, or which diminishes the value of
the property by impairing its capacity for quiet enjoyment, by reason
of the noise, vibration, and confusion caused by the ordinary use of
it, so directly and seriously affects the value of adjoining property as
to entitle the owner to claim damages, although there has been no
physical taking of his property/* And again, a necessary part of the
beneficial use of private property consists in the free right of access
to a street, highway, or navigable stream on which it may abut. And
where the effect and consequence of improvements or public works
constructed by a municipal or private corporation are to deprive a
property owner of the means of access to his premises, — as, where
a railroad laid in the street shuts off the means of ingress and egress,
or where public works constructed along the edge of a navigable river
or lake prevent riparian proprietors from having free access to the
water, — there is such an invasion of the owner's property rights
(though no portion of his land may be actually taken) that compensa-
tion must be made to him.** The right of the owner of a city lot
••Harding v. Stamford Water Co., 41 CJonn. 87; Pettlgrew v. ViUage of
EvansYllle, 25 Wis. 223, 3 Am. Rep. 50 ; Bryant y. Plttsfield, 190 Mass. 530,
85 N. E. 730 ; Ilartman v. Treslse, 36 Colo. 146, 84 Pac. 685, 4 L. R. A. (N. S.)
873. And this mle applies as well to navigable as to private streama Even
where the object of the diversion is to create a new and better channel, yet,
if the result is to deprive the riparian owner of the benefit of the use of the
stream. It is a taking for which compensation must be made to him. People
V. Canal Appraisers, 13 Wend. (N. Y.) 355. See ^'Eminent Domain," Dec, Dig,
(Key No.) $ 69; Cent, Dig, | 171.
»» Lahr v. Metropolitan E. Ry. Co., 104 N. Y. 268, 10 N. E. 528; Drucker v.
Manhattan Ry. Co., 106 N. Y. 157, 12 N. E. 568, 60 Am. Rep. 437 ; New York
El. R. Co. ▼. Fifth Nat. Bank, 135 U. S. 432, 10 Sup. Ct 743, 34 L. Ed. 231 ;
Adams v. Chicago, B. & N. R. Co., 30 Minn. 286, 39 N. W. 629, 1 L. R. A. 493,
12 Am. St Rep. 644 ; Jeffersonville, M. & I. R. Co. ▼. Esterle, 13 Bush (Ky.)
667. See **Efninent Domain;* Dec. Dig. {Key No.) {f 104, ^05; Cent. Dig. {§
rr8-t89.
•« Rumsey y. New York & N. E. R. Co., 133 N. T. 79, 80 N. E. 654, 15 Ia R.
IL 618» 28 Am. St Rep. 600; City of Pekin v. Brereton, 67 IlL 477, 16 Am. Rep.
492 THB BIGHT OF BMIMBMT DOMAIN. (Cb. Id
abutting upon a street to use the street is as much properfj^, it is said,
as the lot itself, and the legislature has as little power to take away
the one as the other; hence it cannot authorize the vacation of the
street without providing compensation for such owners.** When the
state has granted a right or franchise for business purposes (such as
the rig^t to maintain a toll bridge, a ferry, and the like) and the grant
was by its express terms exclusive, the subsequent grant of a fran-
chise of the same' kind, the use of which will compete with the first
and diminish its profitableness, amounts to a taking of the former
franchise, within the meaning of the constitution.** It is also held
in scHne states (though not in all) that if a railroad is constructed in
close proximity to a man's house, and there is consequently a real,
imminent, and constant danger of its being set on fire by the passing
locomotives, and thereby its value, either for purposes of residence,
business, or sale, is greatly diminished, such injurious effect upon the
value of the property will found a claim for compensation.*^ And
where one railroad company is authorized by statute to run its cars
over the tracks of another, this is a taking for which compensation
must be made.**
629 ; Rlgney ▼. City of Chicago, 102 IlL 64 ; Chicago & W. I. B. Co. y. Ayres.
106 lU. 511 ; Johnston ▼. Old Colony R. Co., 18 R. I. 642, 29 Atl. 594, 49 Am.
St Rep. 800 ; Philadelphia & R. R. Co. v. Patent (Pa.) 5 AU. 747 ; Delaplaine
T. Chicago ft N. W. R. Co., 42 Wis. 214, 24 Am. Rep. 886; Chapman ▼. Oah-
kosh & M. R. R. Co., 88 Wis. 629. Bee **BnUnen$ Domain,'* Dec Dig. (Keif
No.) H 99, 106; Cent. Dig. || tS%-t90.
•sHaynes ▼. Hiomas, 7 Ind. 88; Pearsall ▼. Board of Sap*n of ESaton
County, 74 MldL 558, 42 N. W. 77, 4 L. R. A. 193. But compare Levee Dlst
No. 9 V. Farmer, 101 Oal. 178, 35 Pac. 569, 23 L. R. A. 88a Bee **Bfninent Do-
main," Dec. Dig. (Key No.) | 100; Cent. Dig. | 267.
•6 Proprietors of Plscataqna Bridge y. New Hampshire Bridge, 7 N. H. 85 ;
Central Bridge Corp. r. City of Lowell, 4 Gray (Mass.) 474. And see Louis-
ville ft N. R. Co. ▼. Interstate R. Co., 106 Va. 502, 62 S. E. 369. Bee **Bminent
Domain;* Dec. Dig. (Key No.) || 48, 86, 108; Cent. Dig. §§ 103, 261, t92, 296.
87 See Swlnney ▼. Ft Wayne, M. ft C. R. Co., 59 Ind. 205 ; St Louis, Ft
S. ft W. R. Co. y. McAullff, 43 Kan. 185, 23 Pac. 102 ; Ft Worth ft R. O. Ry.
Co. y. Downle, 82 Tex. 388, 17 S. W. 620 ; Pierce y. Worcester ft N. R. Co., 105
Mass. 199 ; Wilmington ft R. R. Co. y. Stauffer, 60 Pa. 874, 100 Am. Dec. 574 ;
Lafayette, M. ft B. R. Co. y. Murdock, 68 Ind. 137. Bee ""Emineni Domain,**
Dec Dig. {Key No.) | HI; Cent. Dig. || 294, 298.
88 MetropoUtan R. Co. y. Qulncy R. Co., 12 Allen (Mass.) 262; Sixth Aye. R.
Co. y. Kerr, 45 Barb. (N. X.) 18& Bee **Eminent Domain,'* Dec Dig. (Key No.)
I 47; Cent. Dig. | 111.
S 188) OOKSBQUSlffTIAL INJUBIBS. 493
OOHSSQinBimAX. XNJVBXBM.
IBS. UbUm m dtferemt iml« U preaevlb^d by OMutitmtiom Mf stetrnt*
im tk# pmaetUvlmx stttto^ tk* «wn«r of yrep»tj ifl a^t Mititled
to ololat dmmacos im voopoet of maj ateroljr Incldontal, liUUroet,
lomtlol lajvrloi wlaloli Us yroportj mmj nutoim by
of a publle wovk or ooaatntotioB, wliore tko MUi&e is
Jvstiflod by a lAwfvl oxoreiso of tko powovs of soTonuaent,
oad tlioro is mo aotmal appropHatiom of aay property or risbt
to wbiek bo bas a logal elaiaa*
If the injury to property is merely incidental or indirect, or affects
the property only as it affects all other property similarly situated,
there can be no just claim to compensation, and, if property is actually
appropriated under the power of eminent domain, the computation
of damages must not include merely consequential or indirect in-
juries.** Thus, for instance, the privilege of maintaining a toll bridge,
previously granted by statute, may be seriously impaired by a subse-
quent grant to another of a franchise to maintain another bridge near
the first. Or the value of a dam may be destroyed by the construction
of a canal, or that of a turnpike by the construction of a railroad. But
in these cases, if the first grant was not in terms exclusive, so that
there is no question of a contract which must not be impaired, the det-
riment which the first work will sustain in consequence of the construc-
tion of the second does not amount to such a taking of it as will re-
quire compensation to be made ; it is merely the loss which any one
may expect to suffer from successful competition.**
It is also a general principle that a municipal corporation making
an improvement solely for the benefit of the public, under ample au-
thority granted by the legislature, and performing the work in a cir-
cumspect and careful manner, and with no lack of care and reasonable
skill, is not answerable for consequential damages produced thereby
•• Stewart v. Village of Rutland, 58 Vt 12, 4 Atl. 420; Bedford v. United
States, 86 Ct CI. 474 (affirmed 192 U. S. 217, 24 Snp. Ct 288, 48 L. Ed. 414) ;
Frazer ▼. Chicago, 186 111. 480, 57 N. B. 1065, 51 L. R. A. 806, 78 Am. St Rep.
296 ; Blgham v. Port Arthur Channel ft Dock Co., 100 Tex. 192, 97 S. W. 686.
18 U R. A. (N. S.) 656. Bee •*BnUnent Domain,** Deo. Dig. (Key No.) | 9^;
Cent. Dig. || 237-M8.
•0 White River Turnpike Co. ▼. Vermont Cent R. Co., 21 Vt 590; Enfield
Toll-Bridge Co. ▼. Hartford ft N. H. R. Co., 17 Conn. 454, 44 Am. Dec. 556;
Dyer v. Tuskalooaa Bridge Co., 2 Port (Ala.) 296, 27 Am. Dec. 655. See **Bfni'
nmi Domain,'* Deo. Dig. (JKey No.) | 108; Cent. Dig. | 293.
494 THE RIGHT OF EMINENT DOMAIN. (Ch. 16
to property in the vicinity of such improvement, no part of which is
taken or used therefor, although the same act, if done without legis-
lative sanction, would be actionable.'* It is a question whether the
same rule is applicable in the case of a private corporation, making
such an improvement primarily for its own advantage and benefit.
In some of the states it is held that such a corporation is liable for all
damages which would not be too speculative or remote to be recovered
in an action against a natural person.'* But in New York the doctrine
prevails that, equally in the case of a private corporation as in that of
a municipal corporation, an act done under the authority of law, if
done in a proper manner, will not subject the party doing it to an ac-
tion for the consequences, whatever they may be, if the law does not
provide for compensation for injuries of that character.'* To take
another illustration, the value of private property may be seriously
affected by a change of the grade of a city street on which the prop-
erty abuts. But this is not a "taking" of the property, and the owner
will not be entitled to claim compensation, unless, as is sometimes the
case, the statute should make provision for it.'*
But in many of the states it has been felt that the doctrine of con-
sequential injuries left the owner of property without redress in many
instances where he had been substantially damnified for the public
good, and where, on just principles, compensation ought to be pro-
vided for him. In these states, therefore, the constitutional provisions
on the subject have been made broader than the type which we have
91 Alexander v. City of Milwaukee, 16 Wis. 247 ; Mayor, etc., of Cumberland
V. Wllllson, 50 Md. 138, 33 Am. Rep. 304 ; Northern Transp. Co. v. Chicago,
99 U. S. 035, 25 L. Ed. 336. See '^Eminent Donuiin," Dec. Dig. (Key No,) i
112; Cent. Dig. § 209.
92 Alexander v. City of Milwaukee, 16 Wis. 247; Tlnsman v. Belvldere Dela-
ware R. Co., 26 N. J. Law, 148, 69 Am. Dec. 565. See **Eminent Domain,'* Dec.
Dig. (Key No.) §§ 91, 92, 112; Cent. Dig. §§ 2S^. 236, 299.
8 8 RadcliflTs Ex'rs v. Mayor, etc., of Brooklyn, 4 N. Y. 195, 53 Am. Dec.
357 ; Bellinger v. New York Cent. R. Co., 23 N. Y. 42 ; Selden v. Delaware &
H. Canal Co., 29 N. Y. 634. And see Benner v. Atlantic Dredging Co., 134
N. Y. 156, 31 N. E. 328, 17 L. R. A. 220, 30 Am. St Rep. 649. See ^'Eminent
Domain,*' Dec. Dig. (Key No.) § 25; Cent. Dig. § 69.
»* See Mayor, etc., of Cumberland v. Willison, 50 Md. 138, 33 Am. Rep. 304 ;
In re Furman St., 17 Wend. (N. Y.) 649 ; Johnson v. Parkersburg, 16 W. Va.
402, 27 Am. Rep. 779; Warner v. State. 132 App. Dlv. 611. 117 N. Y. Supp.
108. Compare Crawford v. Village of Delaware, 7 Ohio St. 459; Sievers v.
Root, 10 Cal. App. 337, 101 Pac. 925. See ''Eminent Domain^" Dec. Dig. (Key
No.) if «, 101; Cent. Dig. §| S-12, 269, 210.
§ 184) COMPENSATION. 495
thus far considered. They are so expressed as to entitle the owner
of property to just compensation in all cases where his property is
"taken or damaged" for the public use. Where a constitution contains
this wider formula, it is held that a recovery may be had in all cases
where private property has sustained a substantial injury from the
making and use of an improvement which is public in its nature,
whether the damage be direct, as when caused by trespass or physical
invasion of the property, or consequential, as in a diminution of its
market value.'*
COMPENSATION.
184. The eonstitutlonml proviiioni for the proteetion. of pxiTate prop-
erty, "when tlM po'wer of eminent domain i« to be ezeroised, re-
quire tliat Jnit oompensatlon shall be paid to the owner. This
requirement inelndee^
(a) The aseesement of the amount of the dan&acei^—
(1) By a fair and impartial tribunal, not neeessarily a Jury.
(2) In a manner eonforming to the directions of the con-
stitution or statute.
(3) At the fair and Just value of the property tahen, or the
fair and Just nicasure of its depreciation i|i consequence
of the urorh or improTcment in question, allowing for
direct benefits to other property of the same owner ae-
cruins therefrom, urhen a part only of a tract is tahen,
and also for corresponding injuries.
(b) The prepayment of the damages, at least urhere the appropria-
tion is made by a private corporation.
(c) The payment of the damages in money.
The Tribunal for the Assessment of Damages.
The legislature, in exercising the power of eminent domain, cannot
in the law itself fix the amount of compensation to be paid to the prop-
erty owner. Such compensation, in case of disagreement between the
parties, must be ascertained and awarded by a fair and impartial tri-
bunal.*' "While the legislature is the judge of the necessity or ex-
•
»B City of Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct 820, 31 L. Ed. G38.
And see City of Chicago v. Pulcyn, 129 111. App. 179. The reader will find an
instructive case as to the difference between a constitutional provision author-
izing compensation for proi)erty "taken" for public use, and one authorizing
compensation for property "taken or damaged," In Rlgney v. City of Chicago,
102 111. 64. See ^'Eminent Domain,'' Dec. Dig. {Key No.) § 69; Cent. Dig. §§
174, 177.
•9 Pennsylvania R. Co. in Maryland v. Baltimore ft O. R. Co., 00 Md. 203.
But, where private property has been taken or damaged by the state, It is
496 THB BIGHT OF BMIMBNT DOMAIN. (Ch. 16
pediency of the exercise of the power of eminent domain, it is not the
judge of the amount or justness of the compensation to be made when
the power is exercised." And therefore, ''when the constitution pre-
scribes no particular mode in which the compensation shall be ascer-
tained, it would seem to follow that, as to the question of the amount
of compensation, the owner of land taken for public use has a right to
require that an impartial tribunal be provided for its determination,
and that the government is bound in such cases to provide such tribu-
nal, before which both parties may meet and discuss their claims on
equal terms." *^ But proceedings for an asesssment of damages upon
an exercise of the power of eminent domain are not controversies of
that nature which is contemplated by the constitutional provisions se-
curing the right of trial by jury in civil issues. Consequently the owner
of property thus taken has no constitutional right to demand that his
compensation shall be assessed by a jury, unless there is a specific
provision to that effect in the state constitution.** The customary
method is to provide for the appointment of a certain number of ap-
praisers or commissioners (sometimes called "viewers") who are to
determine the matter at issue according to their own judgment and
the evidence which shall be adduced before them in relation to the
value of the property or the extent of the injuries to it. These viewers,
having duties to perform which are analogous to those of a jury, must
be free from all legal disqualifications or disabilities and from all in-
terest in the matter at issue, all relationship to the party, and all posi-
tive bias. They must strictly comply with the statute in regard to tak-
ing the oath and all other matters of substance.
Method of Assessing Damages,
In regard to the method and course of proceedings, on the assess-
ment of damages, it may be remarked, as a general rule, that all such
competent for the leglslatare to agree with the owner as to the amount of
the damage, if that can be done, and make an appropriation for its payment
In re Constitutionality of Substitute for Senate Bill No. 83, 21 Colo. 69, 39
Pac. 1088. See **Eminent Domain," Dec Dig. (Key No,) If 207, 209; Cent.
Dig, §§ 545-^48.
•7 Langford v. Ramsey County Com'rs, 16 Minn. 375 (Gil. 333). See ^Bmi-
neni Domain,*' Deo. Dig. (Key No.) ^ 207; Cent. Dig. ^ 545.
••Pennsylvania R. Co. ▼. First German Lutheran Congregation of Pitts-
burgh, 53 Pa. 446 ; Livingston v. Mayor, etc., of New York, 8 Wend. (N. Y.)
85, 22 Am. Dec. 622; Butler t. City of Worcester, 112 Mass. 541; Backus ▼.
Lebanon, 11 N. H. 19, 85 Am. Dec. 466. Bee "Eminent Domain,** Deo, Dig.
{Key No.) ^ 209; Cent. Dig. | 548.
S 184) OOMPSNSATIOH. 497
provisions of th€ constitution or the statute as are intended for the
protection and advantage of the individual are to be strictly followed.
He is to have every opportunity of contesting the proceedings, step
by step, and of asserting and making good his claims to adequate com-
pensation. For instance, the owner is entitled to due notice of the time
and place at which the assessors will proceed to make their valuation,
and he must be afforded an opportunity to be present, and if he at-
tends he has a right to be heard and to present proper and pertinent
evidence. If his rights, in any of these particulars, are abridged or
denied, the proceedings will not be valid.** The award also should
be in due form and executed and filed according as the law directs.
Measure of Compensation.
The rules for ascertaining the amount of compensation to be paid
to the owner of property taken under the power of eminent domain
are subject to some variations, depending on the circumstances of
the particular case. But the general principles are always the same.
And these may be arranged in three classes, according as the appro-
priation is of the whole of the tract or other property, or of only a
portion thereof, or consists in injury and damage to the property with-
out a physical taking of it.
In the first place, if the state or corporation takes the whole of a
tract of land, or the franchise and plant of a corporation, or any other
entire piece of property, the owner is entitled to receive the entire
market value of the property. The market value is not the mere
amount which the property has cost the owner; it may be much
greater. Neither does it mean the amount which the property would
bring at a forced sale, but what it would bring in the hands of a
prudent seller at liberty to fix the time and the conditions of the sale.***
If the property taken consists in the franchise and plant of a corpora-
tion, the market value is not to be ascertained by the par value of the
stock or the cost of the improvements, but it is measured by the actual
selling value of the entire capital stock. If the property has been im-
proved and prepared for the carrying on of a particular business, and
has T\ special value for the purposes of that business only, so that the
business in fact increases the value of the property, this fact should be
••Powers* Appeal, 29 Mich. 504; Hood ▼. Pinch, 8 Wis. 881. 8ee "Emi-
nent Domain,*' Dec. Dig. (Key No.) § 167; Cent. Dig. | 452.
100 'Everett v. Union Pac. R. Co., 59 Iowa, 243, 13 N. W. 109; Doughty v.
SomerrlUe ft R R. Co., 22 N. J. Law, 496. See **EnUnent Domain,'* Deo. Dig.
(Key No.) | ISl; Cent. Dig. | 555.
BL.Ck>NST.L.(3D.ED.) — 32
498 THB RIGHT OF EMINENT DOMAIN. (Ch. 16
considered in computing the damages, though it should not alone gov-
ern.*"* And conversely, the fact that the property has not in fact been
appropriated to any beneficial use will not necessarily prove that it
has no value. "The inquiry must be, what is the property worth in
the market, viewed not merely with reference to the uses to which it
is at the time applied, but with reference to the uses to which it is
plainly adapted, that is to say, what is it worth from its availability
for valuable uses?" ***' But on the other hand, the owner is not en-
titled to claim compensation for any damage which is merely remote,
conjectural, or speculative.*"' Nor is he entitled to be compensated
for any value, in excess of the market value, which the property may
have in his eyes alone, arising from sentiment, association, or personal
predilection. Such matters are not susceptible of pecuniary estimation,
and do not properly enter into the computation. There is some un-
certainty, on the authorities, as to the time at which the value to be
put on the property is to become fixed. It may be either at the time
of the commencement of the proceedings, or at the time of entry upon
the property, or at the time of the view and appraisement. But at any
rate, the value to be paid is that which the property bears at or before
the completion of the condemnation proceedings, not that enhanced
value which might afterwards attach to it in consequence of the uses
to which it is to be put by the appropriator.
In the second place, if the appropriation extends only to a part of
an entire tract belonging to the same owner, the amount of compensa-
tion is not to be measured solely by the market value of that which is
taken. Here it will also be necessary to take into account the effect
of the public work or improvement on the remaining portion of the
estate. This effect may be either beneficial or injurious. In the first
event, the increase of value accruing to the remainder of the estate
101 King T. Minneapolis Union Ry. Co., 82 Minn. 224, 20 N. W. 135; Chicago
A E. R. Co. ▼. Jacobs, 110 111. 414 ; Little Rock ft Ft. S. R. Co. t. McOehee,
41 Ark. 202. But where land Is taken, future profits from the business carried
on there, and which is stopped or interfered with by the appropriation, are too
conjectural, speculative, and uncertain to form any basis for determining the
market value of the property. Jacksonville ft 9. B. Ry. Co. y. Walsh, 106 111.
253 ; Chicago ft B. R. Co. ▼. Dresel, 110 111. 80. See **EnUnen$ Domain^** Dec,
Dig, {Key No,) | iSi; Cent. Dig. | S56.
102 Mississippi ft R. River Boom Oo. v. Patterson, 96 U. 8. 403, 2B Lu E)d.
206; In re Simmons, 195 N. Y. 573, 88 N. fi. 1132. See **BnUneni DomaU^,"*
Dec. Dig, (Key No,) 1 134; C^^- ^EH^- 1 956.
108 Fremont, E. ft M. V. R. Co. v. Whalen, 11 Neb. 585, 10 N. W. 401. Bee
'^Eminent Domain;' Dec, Dig, (Key No.) i| 9S, 1S6; Cent. Dig. H 2S7-BS8, S65.
§ 184) COMrENSATION. 499
is to be deducted from the amount to be awarded. In the second case,
the compensation must be large enough to cover the depreciation of
the balance of the tract.*®* For example, where a railroad company
condemns and appropriates a right of way across a farm or other tract
of land, the true measure of compensation to the owner is the differ-
ence between what the whole property would have sold for, unaffected
by the railroad, and what it would sell for as affected by it, if it would
sell for less. The damages must be for an actual diminution of the
market value of the land.**' In such a case the design of the law is
to compensate the owner fully for all the injury he may sustain by
reason of the appropriation of his land for railroad purposes, and
which shall grow out of or be occasioned by the location and use of
the road.*®' Consequently, it is proper for the jury or appraisers to
take into consideration, in assessing the damages to be awarded in such
a case, the danger and inconvenience of crossing the road from one
part of the land to another,*®' the danger to the owner's cattle of being
killed on the railroad, the additional inconvenience and expense en-
tailed upon the owner in the cultivation and management of his re-
maining land, thus cut in two by the road,*®* the expense of fencing
along the road where it passes through fields,*®* and the danger from
fire to the buildings, fences, timber, and crops on the remaining
io« Pint Cburch in Boston v. City of Boston, 14 Gray (Mass.) 214 ; Edmands
T. City of Boston, 108 Mass. 535; Baltimore ft O. R. Co. v. Pittsburg, W. ft
K. R. Co., 17 W. Va. 812 ; Driver ▼. V^estem Union R. Co., 82 Wis. 569, 14 Am.
Rep. 726; Welch ▼. Milwaukee ft St P. Ry. Co., 27 Wis. 108; Parks ▼. Wis-
consin Cent R. Co., 83 Wis. 418; Robbins ▼. Milwaukee ft H. R. Co., 6 Wis.
636 ; Bigelow v. West Wisconsin Ry. Co., 27 Wis. 478 ; White y. Charlotte ft'
S. C. R. Co., 6 Rich. Law (S. C.) 47 ; Tyler ▼. Hudson, 147 Mass. 609, 18 N. B.
582. Bee '^EminetU Domain,*' Dec Dig. {Key No,) |§ 115, 199-142, UJhU6;
Cent. Dig. H 296, 2i3, S71-S89.
loi Page ▼. Chicago, M. ft St P. Ry. Co., 70 111. 824. See ''Eminent Domain,**
Dec. Dig. (Key No.) | 1S6; Cent. Dig. | S6i.
io« St Louis ft 8. E. Ry. Co. v. Teters, 68 111. 144. See "Eminent Domain,**
Dec Dig. (Key No.) || 9JhllS, 1S6-U2; Cent. Dig. H 2S6-S00, S6S-S77.
lOT Doughty y. SomervUle ft £. R. Co., 22 N. J. Law, 495; St Louis ft S. SL
Ry. Co. V. Teters, 68 111. 144 ; Keithsburg ft E. R. Co. ▼. Henry, 79 111. 290.
Bee **Emincnt Domain,** Dec Dig. (Key No.) | 109; Cent. Dig. ff 294, 295.
!•• Tucker y. Massachusetts Cent R. Co., 118 Mass. 646; McReynolds ▼.
Burlington ft 0. R. Ry. Co., 106 111. 152; Doughty y. SomeryiUe ft B. R. Co.,
22 N. J. Law, 495. See ''Eminent Domain,** Dec Dig. {Key No.) H 102, 110;
Cent. Dig. || 211, 272, 294, 296, 297.
10* Greenville ft a R. Co. v. Partlow, 5 Rich. Law (S. C.) 428 ; Robbins ▼.
Milwaukee ft H. R. Co., 6 Wis. 686; Reg. t. Committee Men for Booth Hoi-
500 THB BIGHT OF BMINBNT DOMAIN. (Ch. 16
land. ^^* But, on the other hand, in all cases of appropriation of part
of a tract of land, mere speculative, remote, or contingent damages to
the remaining parts are not to be taken into account or allowed for in
the computation of damages.^ ^^ Thus, the appraisers cannot take into
consideration any anticipated loss to the plaintiff of profits in his busi-
ness, by reason of the appropriation of a part of his land.*^*
In some few of the states, the constitutions provide that benefits ac-
cruing to the owner's remaining land cannot be set off against the
damages to be awarded him.^^* But, unless such a provision is found
in the constitution, the rule is that in estimating the damages which a
party sustains by the taking of a part of his tract of land for a public
improvement, the local benefit accruing therefrom to the remainder
may be considered and deducted from the damages occasioned by
such taking ; and where such benefit equals or exceeds the value of the
land taken and the amount of the injury to the remainder, the owner
sustains no legal damage and none can be allowed him.^^^ But ''the
benefits to be considered and allowed by the jury, where only a part
of an entire tract is taken, are not such as are common to lands gen-
erally in the vicinity, but such as result directly and peculiarly to the
particular tract in question ; as, for instance, where property is n)ade
more available and valuable by opening a street through it, or when
land is drained or otherwise directly improved." **• For example,
land Drainage, 8 Adol. & B. 429. See **Bminent Domain,*' Dec. Dig. (Key Ko.)
i 103; Cent. Dig. || 274-277.
110 Swlnney v. Ft Wayne, M. ft C. R. Co., 59 Ind. 205 ; Lafayette, M. ft B.
R. Co. r. Murdock, 68 Ind. 137 ; St Louis, Ft S. ft W. R. Co. v. McAuliff, 43
Kan. 185, 23 Pac. 102. See '^Eminent Domain,** Dec. Dig. (Key A'o.) | 111;
Cent. Dig. 1$ 294, ^98.
111 Ellsworth, M. N. ft S. E. Ry. Co. v. Maxwell, 39 Kan. 651, 18 Pac. 819.
See "Eminent Domain;' Dec. Dig. (Key No.) { 95; Cent. Dig. |§ 2S7-2S8.
ii« Pittsburgh ft W. R- Co. v. Patterson, 107 Pa. 461; Schuylkill Nav. Co.
r. Freedley, 6 Whart. (Pa.) 109; In re Mt. Washington Road Co., 35 N. H.
134. See ''Eminent Domain," Dec Dig. {Key No.) | 107; Cent. Dig. §| 291, 293.
lis See Woodfolk v. Nashville ft C. R. Co., 2 Swan (Tenn.) 422. See "Emi-
nent Domain," Dec. Dig. {Key No.) |§ 1U-U6; Cent. Dig. §S 378-393.
11* Nichols V. City of Bridgeport, 23 Conn. 189, 60 Am. Dec. 636; Trinity
College V. City of Hartford, 32 Conn. 452; Jackson County r. Waldo, 85 Mo.
637 ; Piatt ▼. Pennsylvania Co., 43 Ohio St 228, 1 N. B. 420 ; Whitman v.
Boston ft M. R. Co., 3 Allen (Mass.) 133. See "Eminent Domain," Dec. Dig.
{Key No.) If Hk-HS; Cent. Dig. %% 378-393.
lis Whltely v. Mississippi Water Power ft Boom Co., 38 Minn. 523, 38 N. W.
753. See "Eminent Domain," Deo. Dig. {Key No.) |f 144-146; Cent. Dig. fl
'^78-393.
B 184) OOMPBMSATION. 601
where the claim for damages grows out of the alteration of a highway,
benefits caused by such alteration may be set off against the damages ;
but this benefit must be some direct, special and peculiar benefit ac-
cruing to the plaintiff's land, and not the general benefit accruing to
all the adjacent estates by reason of having a wider street. If th^
alteration, by cutting off some of the plaintiff's land, leaves him a
smaller estate with a longer street frontage, which is of more .value
in the market, this is a benefit which should be counted. But unless
he receives some benefit not received in common by all the other es-
tates on that street between the two nearest cross streets, it is not to
be deducted.^ ^* Furthermore, the benefits, like the damages, cannot
be considered if they are merely remote, speculative, or conjectural.
For example, in an action for damages to land in Wisconsin, result-
ing from the construction of a railroad, the fact that the road is a
trunk line to Chicago is not such a benefit to the plaintiff as will be
considered in abatement of the damages suffered by him.^^^ And the
damage done to one piece of land, through which a railroad is run,
cannot be compensated by benefits accruing to another and separate
piece of land, through which it does not run, though belonging to
the same person.***
In the third place, if the taking does not consist in the actual appro-
priation of any specific property, but in injury to it, or diminution of
its value, in consequence of the work or improvement for which the
power of eminent domain is exercised, the assessment of compensation
will become a measuring of damages. And the owner will be entitled
to fair compensation for all such direct injuries to the property as
accrue from the work in question and affect him personally in his
ownership, use, or enjoyment of the property, and which are not
common to the whole community.***
Evidence.
As the proceeding before the viewers is more in the nature of an ar-
bitration than of a jury trial, considerable latitude is allowed in re-
ii«Farwell v. C^ty of Cambridge, 11 Gray (Maes.) 418; Dickenson v. In-
habitants of Fitchburg, 13 Gray (Mass.) 540. And see Mississippi Ry. Go. v.
McDonald, 12 Heisk. (Tenn.) 64. Bee **EminefU Domain," Dec. Dig. (£ev ^o.)
I U6; Cent. Dig. |§ 890-995,
iiT Lajflin y. Chicago, W. ft N. R. Co. (C. C.) 88 Fed. 415. See *'BfninetU D<h
nuUn,'' Dec. Dig. (Key Vo.) | US; Cent. Dig. | 592.
lis Todd ▼. Kankakee ft I. R. R. Co., 78 lU. 530. See **Eminent DcnuUn,"
Dec Dig. {Key No.) | 145; Cent. Dig. | 588.
ii»KeithBbarg ft E. R. Co. ▼. Henry, 79 IlL 290. See ''Eminent Domain^**
Dec Dig. (Key No.) | 111; Cent. Dig. | 294.
502 THE BIGHT OF EMINENT DOMAIN. (Ch. 16
gard to the introduction of evidence. The object being to ascertain
the actual market value of the property taken (or the actual extent to
which it has been injured by the public work or improvement, as the
case may be), almost anything which has a legitimate tendency to show
such value should be admitted. And the appraisers will also be justi-
fied in acting on their personal knowledge and opinion of the value
of the property, though this should not influence them to the exclu-
sion of legal and proper evidence.
Prepayment of Damages.
In a number of the states we find constitutional provisions to the
effect that the compensation to be awarded to the owner of property
which is appropriated for public use must be paid before the taking
of the property. When this is not the case, the question, whether the
law is invalid for postponing the payment of the compensation until
after the owner is deprived of his property, will depend upon whether
it is the state or a municipal corporation which takes the property or
a private corporation. If the power of eminent domain is exercised
for the benefit of the state or one of its municipalities, it is not essen-
tial that payment should first be provided, for it is supposed that the
public faith is a sufficient pledge and guaranty for the payment of
what is awarded. But in this case, the law must provide a means of
making his claim eflFective against the state or the municipality, which
shall be adequate and certain, and which may be initiated by the prop-
erty owner himself at his own discretion.^*® But if the property is to
be taken by a private corporation, the same reasons do not exist. On
the contrary, it may well happen that the ability of the corporation to
pay the damages which shall be assessed may be doubtful. Although
there is no fixed and. absolute rule on the subject, the better authori-
ties agree that in such cases the statute should require the amount to
be paid, or be held ready for payment, before the land passes into the
exclusive control of the corporation.^*^ But the owner of land taken
by a private corporation under the power of eminent domain may, if
he is sui juris, waive the right to exact prepayment of damages, by
130 Zimmerman v. Canfield, 42 Ohio St. 463; Wheeler y. Essex Public Road
Board, 39 N. J. Law, 291 ; Haverhill Bridge Proprietors v. County Ck)m'rs of
Essex, 103 Mass. 120, 4 Am. Rep. 518. See ''Eminent Domain,** Dec, Dig. (Keif
No.) U 7S-78; Cent. Dig. §§ 188-204.
121 Wheeler v. Essex Public Road Board, 39 N. J. Law, 291; Portneuf Irri-
gating C5o. V. Budge (Idaho) 100 Pac. 1046 ; Lovett v. West Virjrinla Cent Gas.
Co. 65 W. Va. 739, 65 S. E. 19a See ''Bminent Domaith,** Dec Dig. (Key No.)
I 75; Cent. Dig. ^ 188.
§ 184) COMPENSATION. 503
consenting, either expressly or by clear implication, to extend a credit
to the company condemning, and allowing the damages to remain as
a debt; but such waiver is not to be inferred without a clear indica-
tion, by words or acts, that the owner will not insist on his constitu-
tional right.***
Payment to be Made in Money.
Since the appropriation of private property under this power is in
the nature of a forced sale, it follows that the compensation to the
owner must be made in money, or at least be pecuniary in character.
The state, for instance, would have no power to compel the owner to
accept other public lands in exchange for his lands thus taken. Nor
could a railroad company, on appropriating lands, require the owner
to accept a grant of other lands, licenses, or rights of way belonging
to it.*** But if the appropriation is made by a municipal corporation
it seems that it may lawfully provide that the damages awarded shall
be paid in interest-bearing bonds, either constituting a part of its ex-
isting debt, or issued specially for the purpose of meeting the new
expense.
122 New Orleans & S. R. Co. r. Jones, 68 Ala. 48; Puller v. Plymouth County
Com'r8, 16 Pick. (Mass.) 81 ; Marble v. Whitney, 28 N. Y. 297. See **Eminent
Domain," Dec Dig. (Key No.) || 7^, 79, 80; Cent. Dig. U 197, 205-214.
i«» See Chicago, S. F. & C. Ry. Co. v. McGrew, 104 Mo. 282, 15 S. W. 831 ;
Vanhome v. Dorrance, 2 Dall. 304, 315, 1 L. Ed. 391. See "Eminent Domain,**
Dec. Dig. (Key No.) | 16S; Cent. Dig. H ^^7, iSS.
604 MUNICIPAL COBPOBATIONS. (Ch. 17
GHAFTEB ZVIL
MUNICIPAL CORPORATION&
185. Local Self-GoTemment
186-187. Nature of Municipal Corporations.
188. Power to Create Monicipal Corporations.
189. LegislatlTe Control of Municipal Corporations.
190. Debts and Revenue.
191-192. Officers of Municipalities.
198. Powers of Municipal Corporations.
194-190. By-Laws of Municipal Corporations.
XfOGAI. 8EI.F.OOVBBina5irT.
186. Tlie priaeiplo of local solf-^OTonmoAt requires tkat loeal goT-
enunental affairs shall be deoided upon and regulated hj local
antboritics, and tl&at tbc people of tbc maiiicipal snbdiTisioiis
of tbe state eball baTC tbc rigbt to determine npon tbclr onm
mnnicipal concerns, witbont beinc controlled hj tbe seneral
pnblic or tbe state at larse.
The principle of local self-government is regarded as fundamental
in American political institutions. It is not, however, an American
invention, but is traditional in England, and is justly regarded as one
of the most valuable safeguards against tyranny and oppression. "We
learn from Blackstone and the elementary writers that the civil divi-
sions of England, its counties, hundreds, tithings, or towns, date as
far back as the times of the great Alfred. In all the changes of policy,
of dynasty, of peace and internal war, and even of conquest, which
that country has undergone since his day, these organizations hs^ve
never been abated or abandoned. They are substantially at this time
what they were before the Norman invasion. Wherever the Anglo-
Saxon race have gone, wherever they have carried their language
and laws, these communities, each with a local administration of its
own selection, have gone with them. It is here they have acquired
the habits of subordination, and obedience to the laws, of patient en-
durance, resolute purpose, andl the knowledge of civil government
which distinguish them from every other people. Here have been
the seats of modem civilization, the nurseries of public spirit, and the
centers of constitutional liberty. They are the opposites of those sys-
§ 186) LOGAL SBLF-QOYX&NHBNT. 606
terns which collect all power at a common center, to be wielded by a
common will, and to effect a given purpose ; which absorb all political
authority, exercise all its functions, distribute all its patronage, repress
the public activity, stifle the public voice, and crush out the public
liberty." ^ And in another case we read : "This right of self-govern-
ment lies at the foundation of our institutions, and cannot be disturbed
or interfered with, even in respect to the smallest of the divisions into
which the state is divided for governmental purposes, without weaken-
ing the entire foundation ; and hence it is a right not only to be care-
fully guarded by every department of the government, but every in-
fraction or evasion of it to be promptly met and condemned, especially
by the courts, when such acts become the subject of judicial investi-
gation/' *
This important principle finds its most pure and perfect expression
in the town meeting of New England, which is a legal assembly of
the qualified voters of a town, held at stated intervals or on call,
for the purpose of electing town officers, and of discussing and de-
ciding cm questions relating to the public business, property, and
expenses of the town. Although such pure democracy does not pre-
vail throughout our country, yet it is in pursuance of the same gen-
eral principle that municipal corporations are established in all the
states, and invested with rights and powers of government subor-
dinate to the general authority of the state, but exclusive within
their sphere. And it is in reality but an extension of this principle
that the government of the United States should be intrusted with
only such powers and rights as concern the welfare of the whole coun-
try, while the individual states are left to the uncontrolled regulation
of their internal affairs. The principle of local government being
thus firmly implanted in our political system, it rests with the legisla-
1 People T. Draper, 15 N. Y. 682, 661. See ^'Municipal Corporation*,*' Deo,
Dig, {Key Vo.) || 4. ^1-79; Cent. Dig. ff 4. 156-18S.
s People T. Albertson, 66 N. T. 60, 67. And see State ▼. WllllamB, 68 Conn.
131, 86 Atl. 24, 48 L. R. A. 466; Van Clere v. Passaic Valley Sewerage Com'nu
71 N. J. Law, 188, 68 AU. 671 ; State v. Moores, 65 Neb. 480, 76 N. W. 176, 41
L. R. A. 624. Oompare Adams v. Knykendall, 88 Miss. 671, 86 South. 830.
Courts wUl not Interfere In the administration of the internal domestic affairs
of municipal corporations, unless there U» a manifest disregard or abuse of
power or discretion. Southon Ry. Co. ▼. Com'rs of Board of Mecklenburg
County, 148 N. C. 220, 61 S. B. 600 ; Barhlte ▼. Home Tel. Co. of Rochester,
60 App. DlY. 26^ 68 N. Y. Supp. 668. See ''Municipal Corporation*;' Deo. Dig.
(Key No.) U €4-79; Cent. Dig. U 166-185.
506 MUNICIPAL CORPORATIONS. (Ch. 17
tive authority of each state to apply and adjust it to the varying needs
of its own people.* That authority must determine what municipal
corporations shall be created and what shall be their powers and the
limit of their juriscRction, according to its view of the requirements
of the different sections and districts of the state, and their capacity
and need of local government.
In some of the states, the right of local government is guarded by
constitutional provisions forbidding the legislature to make any pri-
vate or special laws "regulating the internal affairs of towns and
counties." In others, it is considered as one of the rights inherent in
the people at the time of the adoption of the constitution, and reserved
to the people by that instrument except as modified by the grant of
authority to the legislature.
NATtntE OF MXTHICIPAIi CORPORATIONS.
186. Mnnielpal oorporation* are administratiTe acencies establislied
for the looal soTemmeiit of to'«ras» eltiee, ooimtieB, or other
parttonlar dlstriots.
187. The epeoial power* eonf erred on them are not Teited richte as
acaimt the state, nor are they in the natnre of eontraete, bnt,
being wholly politioal, they exist only dnzins the will of the
legislature. Sneh po^srers may at any time be changed, modi-
fled, repealed, or destroyed by the legislatnrey saving only the
▼osted rights of indiTidnals.
A municipal corporation is a public corporation created by the gov-
ernment for political purposes, and having subordinate and local pow-
ers of legislation; it is an incorporation of persons, inhabitants of a
particular place or connected with a particular district, enabling them
to conduct its local civil government* The more usual kinds of mu-
nicipal or quasi municipal corporations in this country are cities, towns,
townships, boroughs, villages, parishes, counties, school districts, poor
districts, and road districts.
The charter of a municipal corporation is not a contract, within the
meaning of that clause of the federal constitution which forbids the
» Eckerson ▼, City of Dee Moines, 137 Iowa, 452, 115 N. W. 177. See **C(>n^
stituHonal Law,'* Dec. Dig. {Key No.) | 63; Cent. Dig. i| 108-lU; "States,"
Dec. Dig. (Key No.) | 4; Cent. Dig. | 2.
*Clty of Philadelphia ▼. Fox, 64 Pa. 169, 180; Penlck r. Foster, 129 Ga.
217, 58 S. E. 773, 12 L. R. A. (N. S.) 1159. See **MurUcipal Oorporation*;' Deo.
Dig. (Key No.) §1 6Jh79; Cent. Dig. |i ISS-ISS.
§ 188) POWEU TO CBEAT£ MUNICIPAL CORPORATIONS. 507
passage of laws impairing the obligation of contracts. Hence it fol*
lows that such charters may be altered, amended, or repealed by the
legislature at its own discretion, without any violation of that clause,
provided only that private vested rights are not infringed by the action
which it may take in regard to the charter.' And municipal corpora-
tions, being creatures of legislation, have no constitutional guaranty
of trial by jury, and such trial may be denied to them.* They are
liable to have their public powers, rights, and duties modified or abol-
ished at any time by the legislature. They are allowed to hold privi-
leges or property only for public purposes. Hence, generally, the
doings between them and the legislature are in the nature of legisla-
tion rather than compact.^ And one legislature cannot impose restric-
tions on the powers of a municipal corporation which a future legis-
lature cannot modify or abrogate, except where a vested right or the
obligation of a contract might be thereby divested or impaired.'
POWER TO CREATE MUKIGIPAI. CORPORATIONS.
188. The power to distribute the adminiatratiTe fm&otioiis of gOTem-
mentt and from time to time to ohance their diatributioii, be-
lonsB ezolnsiTely to the legislatiire, and this inoludes the
power*
(a) To iaoorporate eities and other mmiioipal oorporations.*
(b) To establish, modify, or ohanc^ their territorial bonndariefl.
(o) To olaseif 7 the eities of the state aooordinc to population or
some other reasonable prinoiple of diTisioa*
B Brown v. Hummel, 6 Pa. 86» 92, 47 Am. Dec. 431 ; City of Philadelphia ▼.
Fox, 64 Pa. 169 ; Inhabitants of Tarmonth y. Inhabitants of North Yarmouth,
34 Me. 411, 56 Am. Dec. 6G6 ; Berlin t. Oorham, 34 N. H. 266 ; President, etc.,
of City of Paterson y. Society for Establishing Useful Manufactures, 24 N. J.
Law, 385 ; Town of Marietta ▼. Fearing, 4 Ohio, 427 ; Horton ▼. City Council
and City Treasurer of Newport, 27 R. I. 283, 61 Atl. 759. See **Con8titutional
La«7," Dec, Dig. (Key No.) | 127; Cent. Dig. |§ 925^H.
• Borough of Dunmore's Appeal, 52 Pa. 374. See "Jury,** Dec. Dig. (Key No.)
I 9; Cent. Dig. | 17.
t Town of East Hartford t. Hartford Bridge Co., 10 How. 611, 534, 13 L.
Ed. 518. See *'Con8tituti(ynal Law,'* Dec Dig. (Key No.) | 127; Cent. Dig. ||
S2SS.U.
s State T. Pllsbury, 31 La. Ann. 1. See "Constitutional Law,** Dec. Dig.
(^ey No.) I 127; Cent. Dig. || 825-341.
• State ▼. Cedaraskl, 80 Conn. 478, 69 Atl. 19 ; Turner t. Althaus, 6 Neb.
54 ; Hope ▼. Deaderlck, 8 Humph. (Tenn.) 1, 47 Am. Dec. 597. See "Municipal
Corporations;* Dec. Dig, (Key No.) { S; Cent. Dig. | 2; "Constitutional Law;*
Cent. Dig. U 825-^41.
508 MUNICIPAL COBPOBATIONS. (Ch. 17
Creation of Municipalities,
The creation of municipal corporations is generally accomplished
either by a special grant of a charter, or (where this is forbidden by
the state constitution, as is now generally the case) by the enactment
of a general law under which such corporations may be organized
whenever the particular district possesses the requisite population and
complies with the other conditions of the act** When the constitu-
tion empowers the legislature to establish but one system of town and
county government, to be as nearly uniform as practicable, absolute
uniformity is not required.**
Boundaries.
As it is for the legislature to determine whether municipal corpora-
tions shall be established, and how the subordinate functions of gov-
ernment shall be apportioned to them, so also it is within its power,
unless restrained by the constitution, to decide what shall be the terri-
torial boundaries of a city, county, or other such corporation, and
after having established the boundaries it may, in its discretion,
modify or change them, subject only to the proviso that private vested
rights must not be injured by the alterations. Thus, the legislature
may annex or authorize the annexation of territory contiguous to the
the limits of an incorporated town or city, without the consent of the
persons residing either in the corporation or the annexed territory.**
But if the legislature should prescribe that such territory should not
be annexed to the municipality unless a majority of the persons living
therein should assent thereto, this would not be an unlawful delegation
of legislative power, but a concession to the parties to be affected of
the privilege of accepting or rejecting a charter.** Statutes fixing
10 Unless controlled by constitutional limitations, the legislature has abso-
lute authority to decide when a given locality has a sufficient number of In-
habitants to entitle it to foe incorporated as a city. Blattoz ▼. State, 115 Oa.
212, 41 S. B. 700. £^66 '^Municipal Corporations,** Dec Dig. (Koff No,) | 5; Cent.
Dig. I 5.
11 Cathcart t. Oomstock, 66 Wis. 590, 14 N. W. 833. Bee '^Statutes,*' Dec
Dig. {Key No.) K 91, 94; Cent. Dig. H 100, 103.
la Graham ▼. City of Greenville, 67 Tex. 62, 2 S. W. 742; Stil« v. City of
Indianapolis, 55 Ind. 515 ; Martin v. Dlz, 52 Miss. 53, 24 Am. Rep. 661 ; Allen-
town V. Wagner, 27 Pa. Super. Ct 485; Town of Cicero v. City of Chicago,
182 111. 301, 55 N. B. 351 ; Hunter v. City of Pittsburgh. 207 U. S. 161, 28 Sup.
Ct. 40, 52 L. Ed. 151. See ''Municipal Corporations,'* Dec. Dig. {Key No.) S§
26-^; Cent. Dig. U 6S-111; ''Constitutional Law,** Cent. Dig. || 534, ^5.
18 Graham v. City of Greenville, 67 Tex. 62, 2 S. W. 742. See "Munidpta
Corporations,*' Dec Dig. {Key No.) {{ 33, 34; Cent. Dig. |i 97, 100.
5 188) POWER TO OBBATB MUNICIPAL OOBPORATIONS. 509
the boundaries of counties, and dividing such counties into towns,
and providing for town organizations, are held to be properly within
the sphere of the powers of the legislature, even though not expressly
specified in the constitution.^^ And an act of the legislature fixing the
county seat is not unconstitutional because it was passed without any
consultation with the people of the county and without giving them an
opportunity to petition the legislature; nor because two places were
named in the act, and the choice between them left to the popular
vote."
Classification.
It is now a common practice to divide the cities of a state into sev-
eral classes, according to their population, giving to those of each
class a certain range of powers or privileges, or a form of govern-
ment, diflferent from those accorded to the other classes, the object
being to adapt the municipal government and powers to the varying
conditions and needs of the different populations. Laws making such
a classification are not open to the objection that they are local or
special. "A law applying to a certain class of cities, fixed by previous
legislation, into which other municipal corporations may enter, and
from which they may pass into other classes, by increase of popula-
tion, is not special but general, since the gradle of any particular city
is not designated by the act, but depends upon its growth in popula-
tion, as it may, by such growth, pass from one grade or class into
another," *• And it is no constitutional objection to such a law that
there may be, at the time; only one city in the state which possesses a
sufficient population to bring it into ont of the designated classes,*^
unless it is evident that the legislature merely sought in this manner
to evade the constitutional prohibition against special laws. It is pos-
sible that there may be other bases for classification beside the relative
14 Chicago ft N. W. Ry. Co. ▼. Langlade Co., 56 Wis. 614, 14 N. W. 844. See
'* Statutes,'* Dec. Dig. (Key No.) | 91; Cent. Dig. | 100.
" Ex parte HllJ, 40 Ala. 121. See **(7oii»«c»," Dec. Dig. (Key No.) I 95;
Cent. Dig. | 38; "Constitutional Lawr Cent. Dig. | 119.
le State v. Hawkins, 44 Ohio St. 98, 108, 6 N. B. 228 ; Land, Log ft Lumber
Co. V. Brown, 73 Wis. 294, 40 N. W. 482, 3 L. R. A. 472; People v. Henshaw,
76 Cal. 436, 18 Pac. 413 ; Stete v. Hunter, 38 Kan. 578, 17 Pac. 177 ; Paul y.
Gloucester County, 50 N. J. Law, 585, 15 Atl. 272, 1 L. R. A. 86. See ^'Stat-
utes,** Dec. Dig. (Key No.) U 91'-93; Cent. Dig. SS 101, 102.
17 State T. Miller, 100 Mo. 439, 13 S. W. 677 ; State v. Graham, 16 Neb. 74,
19 N. W. 470 ; State v. Hudson, 44 Ohio St. 137, 5 N. B. 225. See **8tatut€S,"
Deo. Dig. {Key No.) U 77, 9S; Cent. THg. |§ 81, lOfU
^' •
510 MUNICIPAL CORPORATIONS. (Cb. 17
population, but whatever system is adopted, it must be such as to show
clearly the need of differences in powers or governments. "The true
principle of classification," says the court in New Jersey, "requires
something more than a mere designation by such characteristics as
will serve to classify, for the characteristics which will thus serve as
a basis of classification must be of such a nature as to mark the object
so designated as peculiarly requiring exclusive legislation. There must
be a substantial distinction, having a reference to the subject-matter
of the proposed legislation, between the objects of places embraced
in such legislation and the objects or places excluded. The marks of
distinction on which the classification is founded must be such, in the
nature of things, as will, in some reasonable degree, at least, account
for or justify the restriction of the legislation." *•
I.EOI8LATIVE GOHTBOI. OF MUNICIPAI. COBPOBATION8.
189. In respeet to all those mattors ia wJiioH the people of tke state
Senerally l&aTO urn interest or oonoerny tlie leelslatiire may
qnire and compel tlie mnnioipalities to dlsoharce duties,
form works, and if neoessarj oontraet debts. Bat in regard
to matters of pnrelj local ooneerny wliioH are not of im-
portance to tlie state at larce, and whioh are senerallj best
resnlated hj tbe local antborities, tbe rule of local self-soT*
emment requires tbat tbe ■&nnicipalitj sbonld be eontrolled
onlj b7 tbe preferences and determinatiens of its own citisons.
The double function of municipal corporations requires them to
assume a share in the performance of state duties, as the legislature
shall apportion the same, and also to regulate matters which concern
only the particular community. In respect to the first class of duties,
the legislature has the control, and it may grant, modify, or abrogate
municipal powers as its wisdom shall dictate. It may also, within the
same field, coerce a municipal corporation into the discharge of its
proper functions, by laws requiring it to make contracts, issue bonds,
or undertake public works. Thus, a city or county may be compelled
to maintain local courts or a local police system, to lay out and keep
in repair public highways, build bridges, and erect suitable public
buildings. But in regard to its own local needs or advantages, the
municipality alone is to judge of the desirability of making contracts,
i« Stote V. Hammer, 42 N. J. Law, 485i. See ''Statutee/' Dee. Dig. {JBieu Ve.)
U 95, Itl; Cent. Dig. |§ lOe. US.
§ 189) LEGISLATIVE CONTROL OF MUNICIPAL CORPORATIONS. 511
undertaking works, or incurring debts, and in these matters it cannot
be compelled against its will to adopt the wishes of the state legisla-
ture. Thus, in regard to the maintenance of municipal parks, the ques-
tion of a municipal system of gas or waterworks, and other such pri-
vate and local affairs, it is not in the lawful power of the legislature
to force the municipality into engagements or debts.^*
While municipal corporations are subordinate agencies of govern-
ment, and, as such, subject to the regulation and control of the legis-
lative authority of the state, yet they are also, in some particulars,
assimilated to private corporations in respect to their rights and pow-
ers. "Over all its civil, political, or governmental powers," says Dil-
lon, "the authority of the legislature is, in the nature of things, su-
preme and without limitation, unless the limitation is found in the
constitution of the particular state. But, in its proprietary or private
character, the theory is that the powers are supposed not to be con-
ferred primarily or chiefly from considerations connected with the
government of the state at large, but for the private advantage of the
compact community which is incorporated as a distinct legal personality
or corporate individual ; and as to such powers, and property acquired
thereunder, and contracts madia with reference thereto, the corpora-
tion is to be regarded quoad hoc as a private corporation, or at least
not public in the sense that the power of the legislature over it or the
rights represented by it is omnipotent." *•
And the power of the legislature to control the municipal corpora-
>• In regard to these general proposltionfl, see KimtMill t. County of Mobile.
3 Woods, 555, Fed. Cas. No. 7.774; People v. Draper, 15 N. T. 532; Mayor,
etc., of Baltimore t. State. 15 Md. 376, 74 Am. Dec. 572; People v. Common
Council of Detroit, 28 Mich. 228, 15 Am. Rep. 202 ; Western Sav. Fund Soc. t.
City of Philadelphia, 31 Pa. 175, 72 Am. Dec. 733 ; People y. Mayor of Detroit,
29 Mich. 343; City of Hartford v. Maslen, 76 Conn. 509, 67 Atl. 740; People
T. Coler, 166 N. Y. 1, 59 N. E. 716, 52 L. R. A. 814, 82 Am. St. Rep. 605 ; Horton
T. City Council and City Treasurer of Newport, 27 R. I. 283, 61 Atl. 759, 1 L.
R. A. (N. 8.) 512. See "Co«n«e«," Dec, Dig. {Key No,) | 24; Cent. Dig. | f^.
so 1 Dill. Man. Corp. % 66. The state may make a contract with, or grant
to, a municipal corporation, which it cann<»t subsequently impair or resume.
"A grant may be made to a public corporation for purposes of private adyan-
tage, and, although the public may also derive a common benefit thereftCHO,
yet the corporation stands on the same footing, as respects such grant, as
would any body of persons upon whom like privileges were conferred.** Ricii-
land County v. Lawrence County, 12 III. 1; Spaulding v. Town of Andover,
54 N. H. 8& £fes "Con^iaiUioiial Law;' Dec Dig. {fey No.) i 127; Cent. Dig.
512 ICUNICIPAL CORPORATIONS. (CIl 17
tions is also limited by the necessity of preserving the rights of third
persons which may in some cases intervene. Thus, the right to inter-
fere with the powers and government of a city cannot be so exer-
cised as to deprive bona fide creditors of the municipality of their
remedies against it. The power of taxation, for example, cannot be
so abridged that persons who had previously becbme creditors of the
city, relying on its power to levy taxes to pay its debts, shall be de-
prived of all effectual means of collecting their claims.*^
DEBTS AHD BEVfaTUE.
190. The leffislatare has power to require and eontpel a ■&«»ioipal
eerporation to paj its Just debts, eves wHea they are aot ea*
f oreeable bj the ordiaarj proeesaes of law, aad to tbla emd it
May require the a&iuiieipality to raise a&oaey by tazatioa.
It matters not that the particular claim is not such as the courts
would enforce without further legislative authority. If a moral obli-
gation exists, the legislature may give it legal sanction. A law re-
quiring a municipal corporation to pay a demand against it which is
without legal obligation, but which is equitable and just in itself, being
founded upon a valuable consideration received by the corporation, is
not open to constitutional objection, as being retroactive, or other-
wise.** Thus, the legislature may authorize a municipality to issue
bonds for a debt contracted, without legislative authority, for the im-
provement of its streets.** But the legislature cannot compel a mu-
21 Von Hoffman v. City of Qulncy, 4 Wall. 535, 18 Ij. Ed. 403; Louisiana
V. St Martin's Parish, 111 U. S. 716, 4 Sup. Ct 618, 28 L. Ed. 574 ; State v.
Common Council of City of Madison, 15 Wis. 80; Goodale v. Fennell, 27 Ohio
St. 426, 22 Am. Rep. 821. See **Comtitutional Law,** Deo. Dig. (Key No.) |
1S7; Cent. Dig. § S54.
22 Lycoming County v. Union County, 15 Pa. 166, 53 Am. Dec. 575; New
Orleans v. Clark. 95 IT. S. 654, 24 L. Ed. 521 ; New York Life Ins. Co. v. Board
of Com'rs of Cuyahoga County, Ohio, 106 Fed. 123, 45 O. 0. A. 233 ; Morris
& E. R. Co. y. Newark (N. J.) 70 Atl. 194 ; Merchants* Nat Bank of St Paul
V. City of East Grand Forks, 94 Minn. 246, 102 N. W. 703. A statute author-
izing the recovery of damages against cities for the acts of mobs is not un-
constitutional, lola y. Birnbaum, 71 Kan. 600, 81 Pac. 198. It is competent
for the legislature of a state to require a county to pay a Just debt after the
lapse of such time as would bar it by limitation. Caldwell County y. Harbert,
68 Tex. 321, 4 S. W. 607. See ''Constitutional Law," Deo. Dig. {Key No.) SI
290,^ 193; Cent. Dig. §§ 53S, 5S1.
28 Mutual Ben. Life Ins. Co. v. City of Elizabeth, 42 N. J. Law, 235. Bee
"Constitutional Law," Deo. Dig, {Key No.) 1 193; Cent. Dig. | S39.
8§ 191-192) OFFICERS OF MmilClPALITIES. 513
nicipal corporation to pay a claim which it is tinder no obligation, le-
gal or moral, to pay; nor can it require a court to render judgment
on proof of the amount thereof.**
The revenues of a county are not the property of the county in the
sense in which those of a private person or corporation are regarded.
The whole state has an interest in the revenue of a county, and for
the public good the legislature must have the power to direct its ap-
plication.*" But a municipal corporation has no power to spend money
raised by taxation for any other than purely public purposes.**
OFFZOEB8 OF UmXlOTPAUTIBB.
191. OAeom IuitIbs to do wltk aiiuiieipal eorporatlons are of two
sorts I
(a) Those wHose fnaetloms ooaeom the whole state or Ats people
Soaorally, although territorlallj restricted.
G») Those whose powers and duties relate ezelvsiTelj to Matters of
parelj looal eomeerau
192. Oflloers of the fonner elass aiaj be appointed or regulated by
the state aathoritiesi b«t the prineiple of loeal self-coTom*
■Aont requires that the ohoiee of oflleers of the latter class
should bo left ozcliisiTelj to the people of the particular com-
■Aiuiity.
The police system of a city is a part of the state government, though
its duties are locally restricted, and it is therefore under the control
of the legislature, which may vest the appointment and government
of the police force in officers or boards not chosen by the citizens of
the municipality.*^ On the other hand, it is generally considered that
the fire department is an institution of purely local concern, and the
power to appoint and control its members should therefore be left to
s« Hoagland v. City of Sacramento. 52 Cal. 142 ; SaperviBors of Sadsbury
Tp. y. Dennis, 06 Pa. 400. See ^'Constitutional Lato," Dec Dig, (Key No,) |
$52; Cent. Dig, | 75i.
« 5 People T. Power, 25 111. 169; City of Chicago v. Cook County. 106 111.
App. 47. See "Constitutional Law,^ Sec, Dig, {Key Vo,) % 127; Cent. Dig. U
S25, SSS,
««Wheelock v. Clly of Lowell, 196 Mass. 220. 81 N. B, 977, 124 Am. St
Rep. 543. See "Municipal Corporations,'* Dec. Dig, (Key No.) H 861, 890;
Cent. Dig. (| 1819-1829, 1872.
«T Horton ▼. City Council and City Treasurer of Newport, 27 R. I. 283, 61
Atl. 759, 1 L. R. A. (N. S.) 512 ; City of Amerlcus v. Perry, 114 Ga. 871, 40 S.
B. 1004, 57 L. R, A. 2^0; People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103. Bee
"Municipal Corporations,** Dec. Dig. (Key No.) ^ 67; Cent. Dig. 1 16Z.
B]:/.Const.L.(3d.Ed.) — 33
514 MUNICIPAL CORPORATIONS. (Ch. 17
the municipal authorities.'* But the most recent decisions sanction
the course taken by some legislatures in withdrawing from the citizens
or officers of municipalities the power of appointment or election, and
vesting in the governor of the state the authority to appoint the prin-
cipal municipal officers,* • even the mayor or other chief executive offi-
cer,* • as well as boards of public works, police and fire commissioners,
and the like.**
POWERS OF MUHICIPAI. COBPORATfOirS.
193. TIm powers .watmd im a mmnittipal •ovporatiom are restrleted to
tlio followiac tlwoo olasaesi
(a) Thoeo espressly sraaiod to ft im its eluurtevt or im comstltatioaal
or statmtorj pro^isioas applicable to it*
(b> Thoee sraated'lisr meeeseary or fair ia&plieatioa ffeoat the terms
of tlie saate iastnuaeats.
(o> Those whick are neeessarj to eaable it to exereise its sv^^Ated
powers aad effect tlM objects of its iacorporatioa.*s
Implied Powers,
Besides the powers enumerated in the charter, there are certain im-
plied powers which belong to municipal corporations merely in virtue
of their status as public corporations. These are such as are neces-
sary to enable the corporation to exercise its enumerated powers and
s« State T. Fox, 158 IncL 126» 63 N. EI 19, 66 L. R A. 883 ; State ▼. Denny,
118 Ind. 449, 21 N. B. 274, 4 L. R. A. 65 ; City of Eyansrme ▼. State, 118 IncL
426, 21 N. El 267, 4 L. R. A. 93. See ^'MunMpal CorponUiOM,** Deo. Dig. (iTey
7fo,) I €6; Cent. Dig. | 159.
2» Brown v. Galveston, 97 Tex. 1, 75 S. W. 48& See **Municipal Oorporor
tions;' Dec. Dig. {Key Vo.) % m; Cent. Dig. U 290^tS1.
so Commonwealth y. Molr, 199 Pa. 584, 49 AtL 851, 68 L. R. A. 887, 85 Am.
St Rep. 801. See '^Municipal Corporations,'' Deo. Dig. (Key No.) 1 124; Cent.
Dig. II 290-297.
•1 State T. Nolan, 71 Neb. 136, 98 N. W. 657. But ecHnpare State t. Denny,
118 Ind. 382, 21 N. E. 252, 4 L. R. A. 79; State t. Moores, 65 Neb. 480, 76 N.
W. 175, 41 L. R. A. 624. See "Municipal Corporations,** Deo. Dig. (Key No.)
I 66; Cent. Dig. 1 159.
ss Ottawa t. Carey, 108 U. S. 110, 2 Sup. Ot 861, 27 L. Ed. 669; Los An-
geles City Water Co. v. City of Los Angeles (C. C.) 88 Fed. 720 ; Spanlding t.
City of LoweU, 28 Pick. (Mass.) 71; City of Joplin v. Leckle, 78 Mo. Appw 8;
Ogden City ▼. Bear Lake A River Waterworks & Irrigation Co., 16 Utah, 440,
52 Pac. 697, 41 L. R. A. 805 ; Oty of Delphi t. Hamling (Ind.) 89 N. E. 808 ;
1 Dill. Mun. Corp. | 89. See '*Municipal Corporations,*' Dec Dig. {fey No.) il
52-6S; Cen$. Dig. U Hl-lSS, 1378, 1379.
§ 193) POWERS OF MUNICIPAL CORPORATION& 515
to carry out the objects of its incorporation, and they are considered
as inherent in the corporation because it must be presumed that they
were within the contemplation of the incorporating power, which
would not have granted a charter without the means to carry on a
corporate existence. For example, a city incorporated by the legis-
lature has the capacity to sue and be sued in its corporate name, as
one of its ordinary and essential powers; and it is not necessary in
pleading for such a corporation to aver its legal capacity to sue.*'
So, also, the power to remove a corporate officer from his office is one
of the common-law incidents of all corporations, including municipal
corporations.**
Power to Acquire and Hold Property.
By the common law a municipal corporation has power to acquire
and hold all such real and personal property as may be necessary to
the due and proper exercise of its governmental functions and to
the execution of any duty or obligation with which it is specially
charged ; and this authority is also commonly accorded or recognized
in municipal charters or the general laws regulating such bodies. But
a municipality has no power to acquire land merely as an investment,
or for a speculative future profit, or for the revenue to be derived
from the rents.** Nor can it acquire and hold real property for mu-
nicipal purposes beyond its own territorial limits, unless such power
has been given by statute,** or unless indispensably necessary to its
municipal purposes, which cannot be said of a rock quarry outside the
limits of a city, though it might be convenient for the city to own it,
having in view the paving and macadamizing of the streets.*^ And
since a municipal corporation has no power to incumber its property
•• City of JanesvUle v. Milwaukee ft M. R. Co., 7 Wis. 484. Bee ^Municipal
Corporations,'* Dec. Dig. (Key yo.) 1 10S4; Cent. Dig. % fUtOS.
s« Richards t. darksburg, 80 W. Va. 491, 4 S.'E. 774. See **Mun4cipal Cor*
porations,'* Deo. Dig. {Key No.) | 155; Cent. Dig. U 5|5, SU-
•• Hay ward v. Board of Ttustees of Town of Red Cliff, 20 Colo. 88, 86 Pac.
796 ; City of Champaign ▼. Harmon* 98 III. 491 ; Bates v. Basaett, 60 Vt 530,
15 Aa 200, 1 L. R. A. 106; Opinion of the Jnstices, 155 Mass. 598, 80 N. B.
1142, 15 L. R. A. 809; Opinion of Jnstlcea, 58 Me. 580; Hnnnicntt t. City of
Atlanta, 104 Oa. 1, 80 B. H 500. See **MunMpai Corporation,** Dee. Dig. (Key
No.) H m-tftS; Cent Dig. H 609-6t2.
tt Becker y. City of La Crosse, 99 Wis. 414, 75 N. W. 84^ 40 K R. A. 829, 67
Am. St Rep. 874 ; Langley ▼. City ConncU of Angusta, 118 Oa. 690, 45 8. B.
486, 98 Am. St Rep. 188 ; Riley v. City of Rochester, 9 N. Y. 64. See "Mwni-
^pal Corporations,** Dec. Dig. {Key No.) | 221; Cent. Dig. i 615.
tT Duncan ▼. City of Lyndibnrg (Va.) 84 a A 964^ 48 L. B. A. 881. Bee
^16 MUNICIPAL COBPOBATIONB. (Ch. 17
by mortgage, in the absence of express legislative authority, it fol-
lows that it cannot purchase and hold property which is subject to
^a mortgage. ■• Generally, cities and towns are capable of taking and
holding property under a devise or bequest or deed of gift, and of
holding the same as a trustee, for purposes of a public nature
I. germane to the objects o{ the corporation, or purposes beneficial to
their inhabitants, such as educational and charitable foundations,'*
but not for religious purposes.**
Business and Commercial Enterprises.
A city has no power to engage in the purchase and sale of com-
modities as a business or conduct a manufacturing plant. Thus, what-
ever the motive, it may not engage in buying coal and selling the same
to the citizens, thereby entering into competition with local dealers.**
And though systems of waterworks owned and operated by municipal
corporations are a recognized feature of modem life, the charter
power of a city to erect and maintain such a system does not give it
authority to engage in a general plumbing business.**
Abrogation or Modification of Powers,
As municipal corporations are the creatures of the legislature, their
powers and privileges may be changed, modified, or taken away at
any time by general law, except in so far as they may be safeguarded
by the constitution.**
**MufUc{pal Corporations;* Dec. Dig. (Key Vo.) S8 221, 22S; Cent. Dig. §| 611,
616-622.
38 Fidelity Trnst & Guaranty Co. v. Fowler Water Co. (C. C.) 113 Fed. 5G0.
See **Municipal Corporations;* Dec. Dig. (Key No.) | 221.
99 Handley v. Palmer (C. C.) 91 Fed. 94S; City of Philadelphia v. Fox, 64
Pa. 169 ; In re Crane's Will, 159 N. Y. 557, 54 N. B. 1089 ; State v. Toledo,
23 Ohio Cir. Ct. R. 327; In re Robinson's Estate, 63 Cal. 620. A city may
' accept real estate conveyed to it as a gift for a free public library, with the
condition that the city shall raise the sum necessary to erect buildings on it
KeufTel v. Hoboken, 71 N. J. Law, 518, 59 Atl. 20. See '*Municipal Corpora-
tions;* Dec. Dig. (Key No.) | 22S; Cent. Dig. S§ 616-^22.
*o City of Maysville v. Wood, 102 Ky. 283, 43 S. W. 403, 19 Ky. Law Rep.
1292, 39 L. R. A. 93, 80 Am. St Rep. 355. See **Municipal Corporations,** Dec.
Dig. {Key No.) | 223.
*i Baker ▼. City of Grand Rapids, 142 Mich. 687, 106 N. W. 208. See "Mu-
nicipal Corporations;* Dec. Dig. (Key No.) § 22S; Cent. Dig. § 622.
4> Keen v. Mayor & Council of City of Waycross, 101 6a. 588, 29 S. B. 42.
See "Municipal Corporations;* Dec. Dig. (Key No.) | 223.
4 s In re Allison, 172 N. T. 421, 65 N. E. 263 ; People ▼. McBride, 234 111.
146, 84 N. E. 865, 123 Am. St Rep. 82. See "Municipal Corporations;* Dec.
Dip. (Key No.) { 6i; Gent. Dig. H 156, 157.
S§ 194-196) BT-LAWS OF HUNICIFAL COBFOSATIONS. 617
BT-LAWS OF innnOXPAIi OOBPORATIOmi.
194. Mnaieipal eorporatioBS are imTcsted wltk rabordlnate powen
of soTenmiMitf imolndiac the power to emaet b j*laws or ordi-
naiioes w1liel^ wlthlm tkeir sphere, shall have the f oreo of law*
195* Mmiieipal by-laws or ordimaaoea, to bo Talid, miut bo—
<a) CoBslsteiit with all laws of a hisher aatnre.
(b) Authorised hj the eharter or a statmto.
(e) Reasonable.
<d) Impartial.
<e) Oertain*
196. The lesialatiTo power Tested ia a mmiieipalitj eaaaot be dele-
gated* but a&iist be ezoreised bj the a&iuiioipality throvsh its
appointed ageneies.
Power to Enact By-Laws,
Since municipal corporations are agencies of government, operating
within a limited sphere, and since the regulations which they may es-
tablish will generally come into the closest relation with the conduct
of the citizens, it is eminently proper that they should be invested
with adequate powers to make ordinances in matters of police. All
those matters which concern the public safety, comfort, health, or
morals, are best regulated, in their more minute details, by the people
of each community for themselves. And the general policy of our
institutions is to intrust a large measure of discretion, in these par-
ticulars, to the several municipalities. Thus, in the absence of specific
constitutional restrictions, it is competent for the legislature of a
state, by a general incorporation law or by a particular charter, to
empower a municipality to make ordinances, operative within its
limits, for the regulation or licensing of the traffic in intoxicating liq-
uors, although the subject may already be provided for by the general
laws of the state. And a municipal charter or its by-laws may thus
either expressly or by necessary implication, supersede the general
laws on the subject, within the limits of the corporation.^*
Conformity with Higher Laws,
The power of a municipal corporation to enact by-laws or ordi-
nances is subject to the limitation that they must not conflict with
«« Davis ▼. State, 2 Tex. App. 425; Commonwealtli t. Fredericks, 119 MaM.
199*; State v. Harper, 42 La. Ann. 812, 7 South. 440. See **Munioip<a Oorporu-
tioru,'* Dec. Dig. {Key No.) | S92; Cent. Dig. | ISll; "OonHitutional Lmo,"
O^rU. Dig. H 110, 687; ""IfUowicating Liquof,*' Oeni. Dig. || 10,240.
518 MUNICIPAL CORPORATIONS. (Ch. 17
any provision of the constitution of the United States, any treaty, any
act of congress, any provision of the constitution of the state, or any
provision of the general statutes of the state. All these are laws of
a superior nature, to which the inferior must conform. A municipal
by-law repugnant to any of them is ultra vires and can have no effi-
cacy.*' Moreover, as we have seen, the powers of a municipality are
limited to those granted in its charter or in statutory provisions ap-
plicable to it. It will, of course, follow that a by-law not authorized
to be passed by either the plain terms or necessary implications of such
charter or statute is invalid.**
Reasonableness.
The validity of municipal ordinances may also depend upon their
reasonableness. But here it is necessary to distinguish between such
as are enacted under a specific grant of power and such as are
passed under a general or implied grant. "Where the legislature in
terms confers upon a municipal corporation the power to pass ordi-
nances of a specified and defined character, if the power thus delegated
be not in conflict with the constitution, an ordinance passed in pursu-
ance thereof cannot be impeached as invalid because it would have
been regarded as unreasonable if it had been passed under the inci-
dental powers of the corporation, or under a grant of power general
in its nature. In other words, what the legislature distinctly says
may be done cannot be set aside by the courts because they may deem
it unreasonable or against sound policy. But where the power to
legislate on a given subject is conferred, and the mode of its exercise
is not prescribed, then the ordinance passed in pursuance thereof must
be a reasonable exercise of the power, or it will be pronounced in-
valid." *^ To illustrate, an ordinance prohibiting the opening of streets
for the purpose of laying gas mains, between the 1st of December and
the 1st of March, is a reasonable regulation; but an ordinance pro-
*8Clty of Burlington v. Kellar, 18 Iowa, 59; Pesterfleld v. Vickers, 3 Cold.
(Tenn.) 205 ; Philadelphia & R. R. Co. v. Brvln, 89 Pa. 71, 33 Am. Rep. 726.
8c€ "Municipal Corporations,** Dec, Dig. {Key No.) t 62 J^; Cent Dig. | 1S75.
*• Kemp V. Monett, 95 Mo. App. 452, 09 S. W. 31. See "Municipal Corpora-
tionar Deo. Dig. (Key No.) | 111; Cent, Dig, I 245.
*7 Ex parte Chin Yan, 60 Cal. 78; Coal-Float t. City of JeflersonvUle, 112
Ind. 15, 19, 13 N. B. 115; Toney v. Macon, 119 Ga. 83, 46 S. E. 80; Eastern
Wisconsin R. & Light Co. v. Hackett, 135 Wis. 464, 115 N. W. 376; State ▼.
Cedarskl, 80 Conn. 478, 69 Atl. 19 ; People v. Grand Trunk W. R. Co., 232 lU.
292, 83 N. E. 839. See "Municipal Corporations;* Dec. Dig. (Key No,) i 111;
Cent. Dig. H 245-256.
§§ 194-196) BT-LAW8 OF MUNICIPAI/ GOSPORATIONS. 5l9
hibiting gas companies from opening a paved street, at any time, for
the purpose of laying pipes from the main to the opposite side of the
street, is unreasonable and void.** An ordinance regulating the keep-
ing and retailing of gunpowder, or other dangerous substances, is
valid, if it makes no unreasonable discriminations against persons or
classes of persons.** But all by-laws or ordinances of municipal
corporations which are in restraint of trade, or which tend to create
monopolies, are void,'* unless they are distinctly justifiable as police
regulations. Thus, ordinances in relation to public markets are not
valid if they make unreasonable restrictions, or operate to restrain
trade, or tend to create a monopoly.** The same is true of an ordi-
nance which attempts to restrain persons from employing others in
a lawful business beyond certain limits.**
ImparHality,
Municipal ordinances must be impartial. For instance, an ordinance
which gives to one sect or religious denomination privileges which it
denies to others violates the constitution and is void.** So, an ordi-
nance which prevents one citizen from engaging in a particular kind
of business in a certain locality, under a penalty, while another is per-
mitted to engage in the same business in the same locality, is unreason-
able and void.** Again, a municipality may provide modes of pun-
ishment for offenders against its police ordinances, by general ordi-
nances affecting all persons alike, but has no power to single out any
48 Commissioners, etc, of Northern Liberties v. Northern Liberties Gas Co.,
12 Pa. 818. See **Municipal Corporatian$,'' Dec Dig, {Key No.) | 661; Cent.
Dig. I HS6.
«• Williams T. City Coandl of Angnsta, 4 Ga. 509. Bee **Municipal Corpora-
tiofu:* Dec Dig. (Keg No.) | 595; Cent. Dig. 1 1522.
•0 City of Chicago ▼. Rnmpff, 45 111. 90, 92 Am. Dec. 196 ; Hayes v. City
of Appleton, 24 Wis. 542. Bee "Municipal Corporations,'' Dec. Dig. (Keg No.)
H Hi. 625; Cent. Dig. H ^^» ^^^S.
81 City of Bloomington ▼. Wahl, 46 lU. 489; Bethune t. Hughes, 28 Ga. 560,
78 Am. Dec. 789. Bee **Municipal Corporations," Dec Dig. (Key No.) | 720;
Cent. Dig. 1 1540.
«s Ex parte Kuback, 85 Cal. 274, 24 Paa 737, 9 L. R. A. 482, 20 Am. St Rep.
226. See "Constitutional Law,** Dec Dig. (Keg No.) | 87; Cent. Dig. I 170.
ss City of Shreveport t. Levy, 26 La. Ann. 671, 21 Am. Rep. 553. Bee "Cor^
9titutional Law,** Dec. Dig. (Key No.) S 205; Cent. Dig. | 595; "Municipal
Corporations,** Cent. Dig. | 1S80.
i4Tagman ▼. City of Chicago, 78 III. 405. Bee "Municipal Corporations^**
Dec Dig. (fey No.) | 626; Cent. Dig. 1 1880.
I-
520 MUNICIPAL C0BP0BATI0N8. (Ch. 17
individual, and denounce his trade, occupation, or conduct.'* And
so, a city ordinance exacting a license fee for selling goods, which
fixes one rate of license for selling goods which are within the city
or in transit to it, and another and much larger license for selling
goods which are not in the city, is invalid, as being unjust, unequal,
oppressive, and in restraint of trade.**
Certainty,
It is next required of municipal ordinances that they shall be definite
and certain.*^ This requirement is specially important if the ordinance
is penal; that is, enjoining or prohibiting the doing of some act under
a penalty. In such cases it is necessary that it should describe the
offense with certainty, and also it must fix the penalty with precision,
and not leave its measure to the discretion of any officer. For instance,
where an ordinance provided that for a certain offense the offender
might be fined by the mayor not more than five dollars, it was held
that the ordinance was void because the amount of the fine was not
fixed and definite; though it might have been valid if the ordinance
had imposed a fine of a certain amount, with power in the mayor to
remit a portion thereof in his discretion.** A city ordinance pro-
viding for grading and macadamiziilg a street is not void for uncer-
tainty because the specifications for the work are not embodied in
the ordinance, they being referred to as on file in the office of the city
clerk.**
Delegation of Power,
A general rule of constitutional law prohibits the delegation of leg-
islative power. But it is not regarded as a violation of this rule for
i« Board of Ck>imcilinen of City of Baton Rouge ▼. Cremonlnl, 36 La. Ann.
247. See **Mun4cipal Corporation$,*' Deo. Dig. (Key No.) | 626; Cent. Dig. %
1S80.
6« Ex parte Frank, 62 Cal. 606, 28 Am. Rep. 642. Bee ''Licenses,** Deo. Dig.
{Key No.) %!; Cent. Dig. | 9.
»7 San Francisco Pioneer Woolen Factory v. Brick wedel, 60 Cal. 166; City
of St Paul V. Schleh, 101 Minn. 425, 112 N. W. 532, 118 Am. St Rep. 638;
State ▼. Cedarskl, SO Conn^ 478, 69 Atl. 19 ; People v. Grand Trunk W. R. Co.,
232 111. 292, 83 N. E. 839. See ''Municipal Corporations,** Deo. Dig. {Key No.)
I 111; Cent. Dig. tS 245-26S.
98 State y. Calnan, 94 N. C. 883. See "Municipal Corporations,** Dec Dig.
{Key No.) I 594; Cent. Dig. | 1S18.
B0 Becker v. City of Washington, 94 Mo. 375, 7 S. W. 291. See "Municipal
Corporations,** Deo. Dig. {Key No.) { SOi; Cent. Dig. { 811,
8§ 194-196) BT-IiAWS OF MUNICIPAL OOBPORATIOHS. 521
the legislature, in creating municipal corporations, to invest them with
appropriate powers of legislation for the due administration of the
affairs of the municipality. But no such principle will justify the
municipal authorities in attempting to make a delegation of the powers
confided to them. All such powers as are essentially legislative in
their nature must be exercised by the municipality itself or its d)uly
authorized agents and officers pointed out by law. No such power can
lawfully be turned over to the discretion of a private person, or to
any officer or board of officers not authorized by the charter to ex-
ercise it.
622 CIVIL BIGHTS AND THEIR PROTBCTION. (Ch. 18
OHAFTEB XVllL
CIVIL RIGHTS AND THEIR PR0TE30TI0N BY THE CONSTITUTIONS.
197-ld8. Rights In General.
199. Of Liberty.
200-202. Religious Liberty.
20^205. Personal Liberty.
206. Abolition of Slavery.
207. Right to Bear Arms.
208. The Pursuit of Happiness.
209. Eqnal Protection of the Laws.
210-212. Right to Choose Occupation.
213. Freedom of Contract.
214. Marriage and Divorce.
215. Sumptuary Laws.
2ia Education.
217. Due Process of Law.
218-221. In Revenue and Tax Proceedings.
222. In Eminent Domain Proceedings.
223. In Judicial Action.
224. In Administrative Proceedings.
225. Protection of Vested Rights.
226-227. Searches and Seizures.
228. Quartering of Soldiers.
229. Right to Obtain Justice Freely.
280-233. Trial by Jury.
BIGHTS IH OEHERAIk
107* With respeet to tkb oonstitiitiom of elTil sooietj, and in tke soaso
in wliieh tke terai Is used in pnblio law, ''rights** are powers of
free aotiom.
108. Bights are olassifled as—
(a) NataraL
(b) CiTiL
(e> PoUtleaL
Some rights are created by law, but others exist antecedently and in-
dependently of law. The latter class includes such rights as belong to
a man merely in virtue of his personality. His existence as an in-
dividual human being, clothed with certain attributes, invested with
certain capacities, adapted to a certain kind of life, and possessing a
certain moral and physical nature, entitles him, without the aid of law,
§§ 197-198) BIGHTS IN GENSBAL. 523
to such rights as are necessary to enable him to continue his existence,
develop his faculties, pursue and achieve his destiny. But some other
rights are the offspring of law. They imply not only an individual
but a state. They are not grounded alone in personality, but in an
organized society with certain juristic notions. Still others add to
these pre-requisites the idea of a participation in government or in
the making of laws. We perceive, therefore, that for the purposes
of constitutional law, rights are of three kinds. They may be classi-
fied as natural, civil, and political rights.
Natural Rights.
It was formerly the custom to use this term as designating certain
rights which were supposed to belong to man by the "law of nature"
or "in a state of nature." But clearer moctem thought has shown
that the "state of nature" assumed by the older writers is historically
unverifiable and inadequate to account for the origin of rights. Even
in savagery there is a rudimentary state. The law of physical nature
recognizes no equality of rights ; its rule is the survival of the fittest.
In a state of nature, such as was once supposed, there could be no
right but might, no liberty but the superiority of force and cunning.
In reality, the only true state of nature is a civil state, or at least a
social state. But it is permissible to use the phrase "natural rights"
as descriptive of those rights which grow out of the nature of man
and depend upon personality, as distinguished from such as are created
by law and depend upon civilized society. Examples of these natural
rights are the right to life, which includes not merely the right to
exist, but also the right to all such things as are necessary to the en-
joyment of life according to the nature, temperament, and lawful de-
sires of the individual,^ and the right of liberty, which includes not
only freedom from physical restraint, but also the unhindered enjoy-
ment of all his faculties in all lawful ways.* There is a natural right
of privacy, which is invadled, for example, by the unauthorized pub-
lication of a person's picture as a part of an advertisement ; • and
1 Paveslch ▼. New England Life Ins. Ca, 122 Oa. 100, 50 S. E. 68, 69 L. R.
A. 101, 106 Am. St Rep. 104. See "ConstUuHonal Law," Deo. Dig, (Key No.)
If 82-91; Cent. Dig. ff 149-17$.
s AUgeyer ▼. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832. Bee
**ConstUuiional Law," Dec. Dig. (Key No.) i| 8S-90; Cent. Dig. H 150-172.
s Paveslch v. New England Life Ins. Co., 122 Oa. 190, 50 S. E. 68, 69 L. R.
A. 101, 106 Am. St Rep. 104 ; Foster-Mllburn Co. ▼. CHilnn (Ky.) 120 S. W.
364. But see Henry v. Cherry 30 R. I. 13, 73 Atl. 97. See ** Constitutional
Law,'' Dec Dig. (Key No.) f 83; Cent. Dig. if 150-151^.
524 CIVIL BIOHT8 AND THBIB PROTECTION. (Ch. IS
one has a similar right to be protected in the enjoyment of his good
reputation in the community in which he lives/
Cizil Rights.
But since organized society is the natural state of man, and not an
accident, it follows that natural rights must be taken under the pro-
tection of law, and although they owe to the law neither their existence
nor their sacredness, yet they are effective only when recognized and
sanctioned by law. Civil rights therefore will include natural rights, as
the same are taken into the sphere of law. But there are also civil
rights which are not natural rights. Thus, the right of trial by jury
is not founded in the nature of man, nor does it depend upon person-
ality. But it comes within the definition of civil rights, which are the
rights secured by the constitution of any given state or country to
all its citizens or to all its inhabitants, and not connected with the or-
ganization or administration of government* Hence it appears that
while the term '"civil rights" is broader than "natural rights," and in-
deed includes it, there are important differences between those civil
rights which are properly described as "natural" and those which are
not. Natural rights are the same all the world over, though they may
not be given the fullest recognition under all governments. Civil rights
which are not natural rights will vary in different states or countries.
Political Rights.
Political rights are such rights as have relation to the participation
of the individual, direct or indirect, in the establishment or administra-
tion of govenmient.* For example, the right of citizenship, that of
* Park ▼. Detroit Free Press Co., 72 Mich. 660, 40 N. W. 731, 1 L. R. A. 599,
16 Am. St Rep. S44. See **Constitutional Law," Dec, Dig. {Key No.) f 105;
Cent, Dig. § «£8.
B Winnett v. Adams, 71 Neb. 817, 99 N. W. 681. Bee ^^Constitutional Lwio,^
Dec. Dig. {Key. No.) ^ 82; Cent. Dig. f H9.
« Winnett t. Adams, 71 Neb. 817, 99 N. W. 681. The natural rights of a
citizen are inalienable, and no law restrictlye or prohibitory of those rights
can be passed by the legislature or the people of a state. But a political right
stands on a different footing, and hiay be extended or recaUed at the wiU of
the sovereign power. Ridl^ v. Sherbrook, 8 Cold. (Tenn.) 569. But compare
Oemmer y. State, 168 Ind. 150, 71 N. E. 478, 66 L. R. A. 82, where it is said
that political privileges conferred on the people by the constitution are be-
yond legislative interferenee as ^ectually as if the constitution expressly
provided that the people should not be deprived of them by any legislative
enactment See ""CongtUutional Law,'* Deo. Dig. {Key No.) S S2; Oeni. Dig.
§ 199) OF LIBBBTT. 625
suffrage, the right to hold public office/ the right to petition govern-
ment for a redress of grievances, the right of free criticism of public
officers and government measures, are political rights. They are not
natural rights in any sense, since they owe their existence entirely
to law. They are civil rights in a qualified sense, since they concern
the citizen in his relations with other citizens, but only in respect to
the administration of the state. But they are best considered as a
separate class. Political rights vary in different countries even more
widely than civil rights. Under a despotism they scarcely exist In
our own country they have reached their maximum.
OF UBEBTT.
199« Xd1>«rtj, whether natvral, oivll, or polltie«l, is ike lawful power
in the ImdlTidiftal to eatereiee his eorrespomdias rights. It is
sreatlj favored im law. Bat it is restrained hj the rights of
the state and hj the eqnal rights of all other indlTidnals liv-
ing nnder the same government.
As rights are powers of free action, it follows that liberty must be
the power in the possessor of rights to make them available and ef-
fective, without extraneous hindrance or control except such as may
be imposed by lawful measures. And as rights are divided into nat-
ural, civil, and political, the different kinds of liberty must be subject
to the same classification. Natural liberty is not correctly described
as that which might pertain to man in a state of complete isolation
from his fellows. But it is the liberty to enjoy and protect those rights
which appertain to his nature as a human being living in society with
liis kind." Civil liberty is the power to make available and to defend
(under the sanctions of law) those rights which concern the relations
f People ▼. Woodbury, 38 Misc. Rep. 189, 77 N. T. Supp. 241 ; Pearce ▼.
Stephens, 18 App. Dir. 101. 45 N. Y. Supp. 422. See **ConsUtuiional Law,**
Dec. Dig. (Key Ko.) S 82 ; Cent. Dig. S H9.
>The word "liberty," a? used in the constitutional guaranties, Includes not
merely tbe right of a person to be free from physical restraint, but to be free
in the employment of nil bis faculties in ftll lawful ways; to live and work
where he will ; to earn his living by any lawful calling ; to pursue any business
or occupation, and for that purpose to enter Into all contracts which may be
proper or necessary to his carrying out to a successful conclusion his free pur-
poses and plans. Allpeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427. 41 L.
Ed. 832; Toung ▼. Commonwealth, 101 Va. 853. 45 S. E. 327; In re Jacobs,
•98 N. T. 106, 50 Am. Rep. 636. Bee **ConsHtutional Law," Deo. Dig. {Key A'o.)
Jf St^l; Cent. Dig. %% 149-17S.
626 CIVIL RIGHTS AND THEIR PROTECTION. (Ch. 18
of citizen with citizen and which are recognized and secured by the
fundamental law of the state. Political liberty embraces the right
to participate in the making and administration of the laws.
"In favor of life, liberty, and innocence," says the maxim, "all pre-
sumptions are to be indulged." According to Bracton, "liberty does
not admit of estimation," that is, it cannot be valued or priced; it is
invaluable. Such also were the doctrines of the Roman law. "Liber-
tas inestimabilis res est," we read in the Digest. And again, "Libertas
omnibus rebus favorabilior."
But although liberty' is thus the foundation of rightful government,
and is under the special favor and protection of law, it does not fol-
low that it is unregulated by law. In an organized civic society, living
under the dominion of law, liberty is something very different from
mere license. The state has the right to take measures essential to
its own health and preservation, and to enact regulations for the
dealings of citizen with citizen. And rights must be exercised in ac-
cordance with these laws. By them liberty is not so much restricted
as defined. Liberty is marked out, on the one side, by the reciprocal
duties of government and subject, and on the other side, by the co-ex-
istence in all of equal rights. The state has a right to maintain its
own existence. And for that reason it is not within the rightful free-
dom of any individual to subvert the government, and treason may
be punished by law. For the same reason, the private right of prop-
erty is subject to the condition that all persons shall contribute of
their property to the support of the state.' The state exists on con-
dition that it shall assure to each the undisturbed enjoyment of his
rights. Hence the legality of criminal justice. The government also
is bound to protect the public health, safety, and morals against the
aggressions of individiuals. And thus the freedom of all may be lim-
ited by proper police regulations. Moreover, if the public good re-
quires the appropriation of private property to public use, it may be
taken under the power of eminent domain. Secondly, it is the neces-
sary condition to the union of men in a jural society that each shall
respecf the rights of others. Indeed, a large school of political econo-
mists define the law of liberty as granting to each person the freedom
to do all that he wills, provided he does not infringe upon the equal
• That all compulsory taxation is in tome measure a necessary interfer-
ence wltb the liberty of the citixen, see Knlsely v. Ootterel, 106 Pa. 614, 46 Atl.
861, 60 L. R. A. 86. See '*Con8HtutiQnal Law^' Dec. Dig. {fiey No.) H 8S, ttB;
Cent. Dig. f 665.
§§ 20(^202) • BELIGIOU8 LIBERTY. 527
freedom of any other person. Whenever, therefore, a man's unre-
strained choice as to his acts or conduct would lead him into collision
with the equal rights of others, at that point his liberty stops. This
principle is expressed in the common law maxim, sic utere tuo ut
alienum non laedas. Not only is this rule a lawful limitation upon
individual freedom, but without it liberty could not exist. But for
the recognition and enforcement of such a rule, freedom would be
the prerogative of the strong and slavery the heritage of the weak.
It is the purpose of the present chapter to exhibit the great guar-
anties of natural and civil liberty imbedded in our constitutions, and
at the same time to direct attention to their proper limitations.
BSUOIOUS UBEBTT.
800. Both ike federal eoaatitifttioa amd tke eoaatitntioiM of ike sereral
•tatos ooatain proriaioas ■eovzinc to all people entire freedmm
of eoaeeieii^e or relici<nu libertj.
201* Theie eomstitntioaal proTisioae do mot proTemt or reader ImTalid—
(a) Beeosnitioa of tlie f aet that the creat laaM of the Amerieam peo«
pie are adhereate of the Chrietiaa relisloa.
(b) FvhUe reeosaltioa aad eaeoaracemeat of rellcioa, where ao eoa*
■tralat is pat apoa the eoaeeieaee of aaj penoa.
(e) The eaaetaieat of Saadaj laws.
(d) The eaaetmeat of laws paaiehlac hlaephemj as a erlaie.
202. Bat the saaraaties of relisioas liberty f orhid aad preveat^*
(a) The reeosnitioa of aaj partiealar fona of religiioa as the estab*
lished aad eompalsory relisioa of the state.
(b) The appropriatioa of the pablie moaej or the pablie iaflaeaee to
the sapport of aaj ehareh, seet, or relicioas bodj.
(e) The perseeatioa of aaj iadividaal for eoaseieace*s sake, or the yriim
olatioa of his eoaseieatioas seraples.
(d) Belicioas tests as a qaalifieatioa for ofteo*
Constitutional Guaranties.
The first amendment to the constitution of the United States pro-
vides that congress shall make no law respecting an establishment of
religion or prohibiting the free exercise thereof. It will be perceived
that this amendment relates only to possible congressional action in-
terfering with the liberty of conscience. It is not a limitation upon
the power of the states, but only upon that of congress. If any state
chose to establish a religion, it would not be contrary to the federal
constitution. Whatever r^^lations the several states may see fit to
make, either in extension or abridgment of the freedom of religion.
528 CIVIL BIQHTS AND TUKI& PBOTBCTION. (Ch. 18
they cannot be annulled by the national government or its courts.**
But, as we have stated above, the constitutions of all the states make
such provision on this subject as to secure the full measure of religious
liberty which is deemed essential under American institutions and
ideas.
Christianity as Part of the Law of the Land.
The statement that Christianity is part of the law of the land must
be taken in a qualified and limited sense. It is incorrect if it means
that the doctrines, precepts, and practices of the Christian religion are
compulsory upon all citizens, in the same way as the statute laws or
the unrepealed rules of the common law, or that those articles of faith
and observance may be enforced by the legislature or the courts in
the same manner and to the same extent as the positive enacted law.
If the law demands obedience to any maxim or rule of Christianity,
it is not because of its divine origin, but because that maxim or rule
has been legally adopted as part of the municipal law. But the say-
ing is true in this sense, that many of our best civil and social institu-
tions, and the most important to be preserved in a free and civilized
state, are founded upon the Christian religion, or upheld and strength-
ened by its observance; that the whole purpose and policy of the '. \v
assume that we are a nation of Christians, and while toleration is the
principle in religious matters, the laws are to recognize the existence
of that system of faith, and our institutions are to be based on that as-
sumption; that those who are in fact Christians have a right to be
protected by law against wanton interference with the free and undis-
turbed practice of their religion and against malicious attacks upon its
source or authority, calculated and intended to affront and wound
them ; and that the prevalence of a sound morality among the people
is essential to the preservation of their liberties and the permanence
of their institutions, aiid to the success and prosperity of government,
and the morality which is to be fostered and encouraged by the state
is Christian morality, and not such as might exist in the supposititious
"state of nature'' or in a pagan country. The law does not cover the
whole field of morality. Much that lies within the moral sphere does
not lie within the jural sphere. But that which does lie within the
jural sphere, and which is enforced by positive law, is Christian mo-
rality."
10 Permoli v. Municipality No. 1 of New Orleans, 3 How. 580, 11 L. Eld. 739.
See "Constitutional Law," Dec, Dig. {Key No,) § 8^; Cent. Dig. % 15S.
11 Zeisweiss v. James, 63 Pa. 465, 3 Am. Rep. 558; Shover v. State, 10 Ark.
i§ 200-202) BBLIOIOUS LIBEBTT. 629
Encouragement of Religion.
The constitutional provisions for liberty of conscience do not mean
that religion shall not be encouraged by the state. In point of fact, it
is not the encouragement of religion which is forbidden by the consti-
tutions, but any such discrimination in that encouragement as may
compel men to violate their consciences, in respect either to the choice
of a mode of worship or the support of religious bodies by their con-
tributions. "Government," says the court in Texas; "can hardly con-
sider itself entirely free from the fostering care and protection ot
religion, as connected with the personal, social, and domestic virtues
of its people; but to what extent government may go in the support
and protection of religion, with safety and propriety, may be a subject
of much contrariety of opinion with statesmen and publicists." *•
Public Recognition of Religion.
From the foregoing principles it follows that there is no violation
of religious liberty in the public recognition of religion, or in the
observance of religious forms and ceremonies in public transactions
and exercises, provided that no constraint is put upon the conscience
of any individual. This rule is illustrated by the annual custom of
proclaiming a day of general thanksgiving, and the occasional appoint-
ment of a day of fasting and public humiliation. On the same prin-
ciple, there is no violation of religious liberty in including in the class
of "legal holidays" such days as are regarded by .a great portion of
the people as sacred anniversaries, if no person is required by law to
observe them according to any particular religious rites.
Bible in the Schools.
It has been held by some authorities that the laws of the state may
imperatively require the reading of the Bible in the public schools,
even when the attendance of the pupils at such reading is compulsory.
But it is difficult to see why this may not be an infraction of due re-
ligious liberty in particular cases, and the answer that no one is com-
pelled to send his children to the public schools is not satisfactory, be-
259; Vldal v. Glrard, 2 How. 127, 11 L. Ed. 205; Andrew ▼. New York Bible
and Common Prayer Book Society, 4 Sandf. (N. Y.) 156; Hale v. Everett, 53
N. H. 9, 16 Am. Rep. 82; State v. Chandler, 2 Har. (Del.) 553; People ▼.
Rnggles, 8 Johns. 290, 5 Am. Dec. 835; Rex v. Tayler, 3 Keb. 607; Com. ▼.
Herr, 39 Pa. Super. Ct 454. Bee ^^Constitutional Law," Dec. Dig. {Key Ifo.) %
8i; Cent. Dig. ^ 152.
IS Gabel ▼. City of Houston, 29 Tex. 335. See **0<metitutional Lm(\'* Deo.
Dig. {Key No.) | 84; Cent. Dig. 9 154.
Bl.Oonst.L.(3o.£d.>— ^
530^ CiyiL RIGHTS AND THEIB PROTBCTION. (Ch. 18
cause the practical exclusion of some, on account of religious beliefs,
is equally inconsistent with our constitutions.** It is ruled, however,
and with irrefragable reason, that a law providing that the Bible shall
not be excluded from the public schools, but that no pupil shall be
required to read it contrary to the wishes of his parent or guardian,
is constitutional.^*
Sunday Lcnvs.
Laws requiring "the observance of the first day of the week as a
holiday, at least to the extent of forbidding all ordinary labor, trade,
and traffic on that dlay, enforcing quiet upon the public streets, and di-
recting the cessation of public amusements, such as theatrical exhibi-
tions, and the closing of saloons and grog-shops, are universally in
force in the states, and their constitutional validity is sustained by
the decisions of the courts.** The grounds on which the validity of
Sunday laws may be sustained have been the subject of extended and
earnest discussion. The subject is too large to be entered upon here.
But we may briefly remark that the requirement of the observance of
Sunday, if it is distinctly as a matter of religious principle, violates
18 State Y. District Board of School Dlst. No. 8 of City of Edgerton, 76 Wis.
177, 44 N. W. 967, 7 L. R. A. 330, 20 Am. St. Rep. 41. See Tied. Police Power,
161. See **Con8tituHonal Law," Dec, Dig, (Key No.) ^ 84; Cent. Dig, 1 152.
i« Board of Education of Cincinnati v. Minor, 23 Ohio' St 211, 13 Am. Rep.
233 ; Nessle v. Hum, 1 Ohio N. P. 140. And see PfeifTer v. Board of ESducatlon
of Detroit, 118 Mich. 560, 77 N. W. 250, 42 L. R. A. 536 ; State ▼. Scheve, 65
Neb. 853, 91 N. W. 846, 59 L. R. A. 927. But denominational religious exer-
cises and instruction in sectarian doctrine in the common schools are forbid-
den by the constitutional provisions under consideration. See Steyenson v.
Hanyon, 16 Pa. Co. Ct. R. 186. See '*School8 and School Districts," Dec. Dig,
(Key No.) ^ 165; Cent. Dig. f S37; "Constitutional Law," Cent. Dig. ^ S4^.
i» Soon Hlng v. Crowley, 113 U. S. 703, 5 Sup. Ct 730, 28 L. Ed. 1145; In
re King (C. C.) 46 Fed. 905; Swann v. Swann (C. C.) 21 Fed. 299; Judeflnd v.
State, 78 Md. 510, 28 Atl. 405, 22 L. R. A. 721 ; State v. Judge of Section A,.
39 La. Ann. 132, 1 South. 437 ; People v. Havnor, 149 N. T. 195, 43 N. B. 541,
31 L. R. A. 689, 52 Am. St Rep. 707 ; NeuendorflT v. Duryea, 69 N. Y. 557, 25
Am. Rep. 235 ; City of Nashville v. Linck, 12 Lea (Tenn.) 499 ; Langabler v.
Fairbury, P. & N. W. R. Co., 64 111. 243, 16 Am. Rep. 550 ; Bz parte Koser, 60
Cal. 177; Gunn v. State, 89 Oa. 341, 15 S. E. 458; Ex parte Burke, 59 Cal. 6,
43 Am. Rep. 231; State v. Weiss, 97 Minn. 125, 105 N. W. 1127; State v.
Grossman, 214 Mo. 233, 113 S. W. 1074 ; Ex parte Caldwell, 82 Neb. 544, 118
N. W. 133 ; State v. Powell, 58 Ohio St 324, 50 N. E. 900, 41 L. Rt A. 854 ;
State V. Sopher, 25 Utah, 318, 71 Pac. 482, 60 L. R. A. 468, 95 Am. St Rep.
845; Silverberg Bros. v. Douglass, 62 Misc. 340, 114 N. Y. Supp. 824. See
**Constitutional Law," Deo Dig. {Key No.) { 84; Cent. Dig. S 15^.
g§ 200-202) BELIOIOU8 LIBERTT. 631
the religious liberty of the Jews and perhaps others. And if the physi-
cal necessity of an interval of rest at stated periods is urged as the
ground (thus making Sunday laws a species of sanitary regulations),
it must be answered that this does not justify the imposition of such
a day of rest upon those who observe Saturday in that manner or
any other day of the week. The fact is that the great majority of
the American people are Christians, and the laws are made with ref-
erence to this fact. And although others may be put to inconvenience
by laws of this kind, it is but an application of the principle that the
wishes and preferences of the majority must govern. But such laws
must be of universal application within the territory over which they
extend and enforced without discrimination. For instance, a Sunday-
closing law which allows Jews who observe the Sabbath to keep their
places of business open on Sunday is invalid, because it g^ves to people
of that religion a privilege which is denied to others.**
Blasphemy a Crime.
Laws defining and punishing blasphemy as a crime are not an un-
constitutional interference with the freedom of the conscience and re-
ligious liberty. For the legal conception of this crime includes not
only the use of impious language, but also a wanton and malicious
intention on the part of the speaker to offend and affront Christian
people and wound their susceptibilities. It is therefore not merely,
nor mainly, an offense against religion, but an offense against individ-
uals or a considerable portion of the entire community. And it is,
for this reason, as much within the rightful cognizance of the criminal
laws as is libel, or malicious injuries to property. All the best au-
thorities sustain the validity of laws for the punishment of blasphemy.*^
But of course the laws against blasphemy do not interfere with the
rightful liberty of speech or of the press, any more than with the
freedom of conscience. That is to say, they do not include the candid
and honest criticism of systems of religion, or of grounds, objects, or
articles of religious faith, or the honest discussion of such subjects,
!• City of Shreveport v. Levy, 26 La. Ann. 671, 21 Am. Rep. 053. See ''Con-
$tUutional Law,'' Dec. Dig. (Key No,) § 205; Cent. Dig. % 595.
IT 2 Blflh. Or. Law, § 74 ; Reg. v. Bradlaugh, 15 Cox, Cr. Cas. 217 ; Common-
wealth T. Kneeland, 20 Pick. (Mass.) 206 ; People ▼. Ruggles, 8 Johns. (N. Y.)
290, 5 Am. Dec 835. Public profane swearing, when it takes such form, and
is uttered under such circumstances, as to constitute a public nuisance, is an
indictable offense at common law. Ooree ▼. State, 71 Ala. 7 ; State ▼. Steele,
3 Heisk. (Tenn.) 135. Bee ''Conatitutianal Law,** Dec Dig. (JTey No.) S &t;
Cent, Dig. S 15$.
532 CIVIL BIGHTS AND THBIB PBOTBCTION. (Ch. 18
when undertaken with sincere and justifiable motives and for proper
ends. Thus in England it is held that a blasphemous libel does not
consist in an honest denial of the truths of the Christian religion, but
in a willful intention to pervert, insult, and mislead others by means
of licentious and! contumelious abuse applied to sacred subjects.^'
Bstablishment of Religion Forbidden.
In many of the states the constitutions provide that no man shall
be compelled, against his consent, to support or attend any church;
in some, that there shall be no established church; and in several,
that there shall be no preference shown to any one sect^* These pro-
visions, together with the prohibition laid upon congress, furnish the
guaranty against the establishment of a church or religion. A church
is by law "established" in a state when it is an institution of the state,
under the direct protection and patronage of the state, to the exclusion
of other churches or sects, when it is supported by general and public
taxation, when its laws, ordinances, and doctrines are a part of the
municpial law of the state, so that persons may be punished by the
civil authorities for disobedience of them, and when its chief officers
are officers of the state or appointed by the civil authorities.
Taxation in Aid of Religion.
In a considerable proportion of the states, the constitutions provide
that no money can be taken from the public treasury in aid of any
church, sect, or sectarian institution. And in general, and even with-
out constitutional prohibitions, the compulsory support, by taxation
or the appropriation of public funds, of religious establishments or
religious instruction, would be contrary to the principles of religious
freedom and the rules of taxation.
Exemption from Taxation.
Although the state may not lawfully appropriate money to the sup-
port of religious institutions, it may lawfully exempt from all ordi-
nary taxation the property of religious societies used by them for pur-
poses of public worship. This may be done in the interests of reli-
gion and for the encouragement of it, as a factor in the inculcation
of morality, just as a similar exemption may be granted to schools
and colleges, in the interests of the spread of ediucation, or to hospi-
tals and asylums, in the interests of humanity. But there must be
i< Reg. ▼. Ramsay, 48 Law T. (N. S.) 783^
!• sum. Am. St Law, p. 8» Si 42, 43.
§8 200-202) BBUQIOUS UBBBTT. 633
no discrimination in such exemption, either in favor of or against any
sect or religious body.
Legal Status of Religious Societies.
No principle of the constitution is infringed by the incorporation
of religious societies under general laws, and without discrimination,
and the investing them with power to hold and possess property and
otherwise to manage their business affairs. By such incorporation the
society acquires a legal status, and in respect to its property and its
business dealings with others, and to the rights of its members, con-
sidered as property rights, the courts may deal with it as with any
other corporation. But the church, the spiritual organization, is not
thereby incorporated It is left to make its own rules, as to its mem-
bership and otherwise, and with its purely ecclesiastical affairs, and
such matters as church discipline and forms of worship, the state and
its courts have no concern whatever.**
Religion No Excuse for Crime.
In several of the states the constitutions provide that the guaranties
of religious freedom are not to be held to excuse acts of licentious-
ness, or to justify practices inconsistent with the peace and safety of
the state. Even without such provisions in the organic law, it would
be clearly competent for the state to condemn and punish acts which
are contrary to its policy and the established laws regulating the con-
duct of citizens, notwithstanding that a minority of the people pro-
fessed a religion which tolerated or even commanded such acts. In
other words, peculiarities of religious belief cannot be made a defense
to prosecutions for breaches of the criminal laws. As a conspicuous
illustration of this rule, we may cite the decisions of the federal su-
preme court in the Mormon cases, to the effect that, although the prac-
tice of polygamy was sanctioned by the religion of that people, yet
that fact did not prevent congress from prohibiting and punishing it,
as well as any other open offense against the enlightened sentiment of
mankind.*^ On the same ground the courts have sustained the valid-
so Feizel y. Tmstees of First German Soc. of M. E. Church, 9 ECan. 502 ;
Baptist Church in Hartford v. Witherell, 8 Paige (N. T.) 206, 24 Am. Dec. 223 ;
Hitter T. German Roman Catholic St. Aloyslus Soc, 4 Ky. Law Rep. 871. Bee
**ReliffiOM 8ocietie9,'* Dec Dig. {Key No,) if U, 24; Cent. Dig. f| 100-102, 155.
SI Mormon Church ▼. U. S., 136 U. S. 1, 10 Sup. Ct 792, 84 L. Ed. 481 ; Rey-
nolds Y. U. S., 08 U. S. 145, 25 Lu Ed. 244 ; Murphy v. Ramsey, 114 U. 8. 15, (S
Sup. Ct. 747, 29 L. Ed. 47 ; Davis v. Reason, 133 U. S. 333, 10 Sup. Ct 200, 33
L. Ed. 637. See ^'OonatUutional Law^ Dea Dig. {Key No.) S 84; OetU. Dig.
tl62.
534 CIVIL BIGHTS AND THBIR PROTECTION. (Ch. 18
ity of the federal immigration laws excluding alien anarchists from
the United States,** and the statutes in force in several of the states
which make it a punishable offense to practice medicine without a
proper certificate or license, or to omit to furnish proper medical at-
tendance to a sick child, although these laws contravene the tenets
and practices of the adherents of "Christian Science." *•
Respect for Conscientious Scruples.
It is a general principle, based on the rule of religious liberty, that
no man's conscientious scruples should be violated by the laws, unless
where the exigencies of government or of the state make it unavoid-
able.** Illustrations of this principle are seen in the almost universal
rule which allows the substitution of a solemn affirmation, instead of
an oath, where one is required to be taken, and also in those provisions
in the constitutions of several of the states which exempt all persons
from bearing arms in the public defense, or serving in the militia,
who have conscientious scruples on the subject of the morality of war.
Under a provision of this kind, a fine for not attending a militia muster
cannot lawfully be imposed on such persons.*'
Competency of Witnesses.
At the common law those persons only were competent to give evi-
dence as witnesses in a court of law who believed! in the existence of
a Supreme Being who would punish false swearing. Without such
belief, it was considered, there was no way of making the oath obliga-
tory on the conscience of the witness.** In a considerable number of
the states, this rule has been done away with by constitutional provi-
sions that no religious test shall be required as a qualification of a
witness. But in some the common law rule still remains in force. In
" United States v. WiUiams (C. C.) 126 Fed. 253, affirmed, 194 U. S. 279,
24 Sup. Ct. 719, 48 L. Ed. 979. See "Constitutional Late,'* Dec. Dig. (Key No.)
§§ 82. 84.
" State V. Marble, 72 Oblo St. 21. 73 N. E. 1063. 70 L. R. A. 835, 106 Am.
St. Rep. 570; People v. Pierson, 176 N. Y. 201, 68 N. E. 243, 63 L. R. A. 187,
98 Am. St. Rep. 666. See "Constitutional Law,*' Dec. Dig. {Key No.) § 84.
S4 Peculiar religious beliefs, tbougb tbey may cause estrangement between
man and wife, and introduce dissension in the family, cannot be made a
ground for divorce. Raymond y. Uaymond, 74 *Tex. 414, 12 S. W. 90. See
'^Divorce," Dec. Dig. (Key No.) ^ 90; Cent. Dig. § 284.
«B White V. McBrlde, 4 Bibb (Ky.) 61. See ''Militia,** Dec. Dig. (Key No.)
S 6; Cent. Dig. { 9.
20 Omichund v. Barlier, Willes, 538; Atwood v. Welton, 7 Conn. 66; Arnold
▼. Amold*s Estate, 13 Vt 362. See ''Witnesses,*' Dec. Dig. (Key No.) ^ U;
Cent. Dig. U 102, lOS.
§§ 203-205) PBBflONAL LIBBBTT. 535
those jurisdictions, it is held by the courts that the rejection of a
witness as incompetent, by reason of his want of religious belief, is
not a violation of the principle of religious freedom.*^
Religious Test as Qualification for Office,
In a majority of the states, the constitutions ordain that no religious
test shall be required as a qualification, or condition of eligibility, for
the holding of public office or any trust under the state. So also by
the constitution of the United States, "no religious test shall ever
be required as a qualification to any office or public trust under the
United States." But this principle has not been universally adopted.
It is still the constitutional rule in some of the states that no man can
hold office who denies the existence of a Supreme Being. And on
the other hand, in some few of the states, the fundamental law or-
dains that no minister or preacher of any religious denomination can
be a member of the legislature, or (in Kentucky) hold the office of
governor, or (in Delaware) hold any civil office.**
208* Personal liberty eoBslsts Im the power of loeomotiea, ef elianctwg
flltiiAtion, of remoTins OBe*e pereom to wliatever plaee ome'e lm«
eliiuktlon auij dlreet* without imprisoimient or restraint nnlees
hj dne eonrse of law,** and also it inelndee the ri^ht of hodUj
integA'itj, that ia, freedom from physieal injnry or desrada-
tion.so
tT Thurston y. Whitney, 2 Gush. (Mass.) ' lOi. See ^^Constitutional hoiwf'
Dec. Dig. (Key No.) ^ 5i; Cent. Dig. % 152.
>• See Stlmson, Am. St Law, p. 54, f 223.
«• 1 Bl. Oomm. 134 ; Henry ▼. Cherry, 30 IL I. 13, 73 Atl. 97.
to Pavesleh ▼. New England Life Ins. Co., 122 Oa. 190, 50 S. B. 68, 09 L.
R. A. 101, 106 Am. St. Rep. 104. In a case in New York, where the members
of a city police department seized a person, after he had been admitted to
bail for an alleged offense and before trial, and carried him to the police sta-
tion, and there compelled him to submit to be photographed and measured,
for the purpose of preserving his likeness and measurements among the crimi-
nal archires or ''rogues' gallery" of the city, it was held that such conduct
constituted a gross violation of his right to personal liberty and entitled him
not only to an action for damages against all those concerned, but also to the
aid of the courts to secure the return to him of the photographs and measure-
ments so tak«i. Oow ▼. Bingham, 57 Misc. Rep. 06, 107 N. T. Supp. 1011. But
see Downs v. Swann, 111 Md. 53, 78 Atl. 653. But on the other hand, as to
compelling an adult to submit to compulsory vaccinaticm, see Jacobson ▼.
Massachusetts, 197 U. S. 11, 25 Sup. Ot 358, 49 L. Bd. 643. See *'Oon8tUih
tUmal Law;' Dec Dig. (fey No.) S 8S; Cent. Dig. U ISO-lSlii.
636 CIVIL RIGHTS AND THBIB PROTBCTION. (Ou 18
204. Tliis rIsHt la omplj leoiured hj svaraatles in both ike federal aad
the state eoiurtitntloiifl. No one can, be deprived of It ezoept 1>7
dae prooeee of law.
205. Bat the risht of personal liberty ie limited* ia aeeordaace with
laWt im eo far as aiaj be neoessary f oin*
(a) The preserratiba of the state and the dae discharge of its faaie-
tiOBS.
(b) The secnrini^ of the rights of each aiember of the commaaitj
against the others,
(o) The dae resalatioa of the domestie relations.
Guaranties,
The fourteenth amendment to the federal constitution provides that
no state shall deprive any person of life, liberty, or property without
due process of law. And similar provisions are found in most of the
state constitutions. Besides these specific guaranties, there are many
which are designed to guard the right of personal liberty in particular
aspects of it, or in particular relations, or against particular forms of
aggression. For instance, the abolition of slavery and involuntary
servitude is a provision which makes for personal liberty. So also
is the prohibition against the passage of bills of attainder and that
against ex post facto laws. Of the same nature is the humane provi-
sion of the constitutions admitting accused persons to bail in proper
cases, and requiring that bail, when exacted, shall not be excessive.
The same remark is true, though less directly, of those regulations of
the mode 6f trial in criminal cases which give to the accused the benefit
of the presumption of innocence and the right to be presented or in-
dicted by a grand jury and to be tried by a petit jury of the vicinage.
And the great safeguard of the right of personal liberty is the priv-
ilege of the writ of habeas corpus. All these guaranties are consid-
ered at large in other parts of this work.
Limitations.
The limitations upon the right of personal liberty to be first con-
sidered are those having relation to the duties and needs of the state
and the obligations of the citizen to the government and to other citi-
zens. And first, the citizen may be restrained of his liberty by being
put under arrest, in a lawful manner and by a person duly authorized,
in order to prevent the commission of a public offense, or in order to
bring him to trial for a crime with which he is charged. But the
law requires as an almost invariable rule that the arrest shall be made
upon a warrant duly issued by a lawful magistrate, and that it shall
be served by an officer of the law. Any person fotmd in the act of
6§ 208-205) PBB80NAL UBSBTT. 637
committing a felony or a breach of the peace with force may be ar-
rested by any citizen without a warrant. An officer of the law may,
without a warrant, arrest a person violating municipal ordinances in
his presence, or on reasonable grounds of suspicion of felony.*^ But
arrests without warrant are not by any means favored in the law,
and any person making an arrest under such circumstances must at
once take the person arrested before some magistrate or court of com-
petent jurisdiction to inquire into the alleged offense, and must also
show that the actual state of the case was such as to justify his ac-
tion.»«
In the next place, a man may be restrained of his liberty as a conse-
quence of crime committed by him. But the principle of protection
to personal liberty demands that imprisonment shall be decreed only
after a fair and impartial trial, conducted according to the regular
forms of judicial procedure, and a proper conviction. And even then
the terms of the sentence must be strictly observed. Any detention
of the prisoner after the expiration of the term for which he was sen-
tenced, whether for breaches of prison discipline or other cause, is
illegal.** Under this head we must also include imprisonment or
detention as a punishment for contempts of court or of legislative
bodies, or for contumacy defeating the operation of their lawful
powers and jurisdiction, and the temporary detention of persons want-
ed as witnesses in criminal cases and whose attendance might not
otherwise be secured.**
SI 1 East, P. C. 2d8; Holley v. Mix, 3 Wend. (N. Y.) 850, 20 Am. Dec 702;
Wade V. Chaffee, 8 R. I. 224, 5 Am. Rep. 672 ; State v. Underwood, 75 Mo. 230;
Mitchell y. Lemon, 34 Md. 176 ; Griffin y. Coleman, 4 Hurl, ft N. 265. A peace
officer may arrest for a breach of the peace committed against himself as well
as for those committed against others. Dayls y. Burgess, 54 Mich. 514, 20
N. W. 540, 52 Am. Rep. 82a See *" Arrest,*' Dec. Dig. (Key No.) H 61-64; Cent.
Dig. fiS lU-160.
ss A statute conferring authority on police officers to make arrests without
a warrant, for misdemeanors not committed In yiew of the officer, and merely
upon suspicion, is unconstitutional and yold. In re Kellam, 55 Kan. 700, 41
Pac. 060; Plnkerton t. Verberg, 78 Mich. 573, 44 N. W. 579, 7 L. R. A. 507,
18 Am. St Rep. 473. See ^'Arrest,** Dec. Dig. (Key No.) | 6S; Cent. Dig. H
147-156.
ss Gross y. Rice, 71 Me. 241 ; Knox y. State, 9 Baxt. (Tenn.) 202 ; City of
St Louis y. Karr, 85 Mo. App. 606. See **CoMiitutional Law," Dec. Dig. (Key
2io.) S 272; Cent. Dig. | 761.
S4 People y. Society for Preyention of Cruelty to Children, 48 Misc. Rep. 175,
95 N. Y. Supp. 260l But see In re Comm<»iwealth of Pennsylyanla, 45 Misc.
638 CIVIL BIGHTS AND THEIR PROTECTION. (Ch« 18
In the next place, certain classes of persons may be restrained of
their Hberty, by due process of law, wh6se power to go at large, with-
out restraint, would threaten the peace, security, or health of the
community. These include maniacs and dangerous lunatics, persons
affected with dangerous infectious diseases, vagabonds, and possibly
dipsomaniacs or confirmed inebriates.** But these, no less than others,
are protected by the requirement of due process of law. For example,
it is held that a person supposed to be insane may not lawfully be
committed to an asylum, at the instance of public authorities, against
his will, without some sort of judicial investigation into the question of
his sanity.** Vagabonds and paupers may be committed, by those duly
authorized, to public work-houses, infirmaries, and other similar insti-
tutions.*' Due process of law in such cases does not always require
a trial by jury. But in some form due process of law must be em-
ployed, or such commitments are illegal.** Another ground of limi-
tation upon the right of personal freedom is that which is described as
being necessary to enforce the duty which citizens owe in defense
Rep. 46, 90 N. Y. Supp. 80a Bee '^Constitutional Lwu>,'' Dec Dig, (Key No,) |
«55; Cent. Dig. | 7-W.
•RLeavltt V. Morris, 106 Minn. 170. U7 N. W. 398, 17 L. B. A. (N. S.) 984;
Kirk y. Board of Health, 83 S. C. 372, 65 S. K 387. But fiee E^x parte Scliwart-
ing, 76 Neb. 778, 108 N. W. 125 ; People T. St Sayiour's Sanitarium, 84 App.
Div. 363, 56 N. Y. Supp. 431. Bee '^Drunkards," Dec. Dig. (Key No.) | ^.
s« Simon y. Craft, 182 U. S. 427, 21 Sup. Ct 836, 45 L. Ed. 1165 ; In re Lam-
bert, 134 Cal. 626, 66 Pac. 851, 55 L. R. A. 856, 86 Am. St Rep. 296; Porter T.
Ritcli, 70 Ck>nn. 235, 39 Atl. 169, 39 L. R. A. 353 ; Bumpus y. French, 179 Maas.
131, 60 N. E. 414; In re Le Donne, 173 Mass. 550, 54 N. E. 244; In re Dow-
dell, 169 Mass. 387, 47 N. E. 1033, 61 Am. St. Rep. 290; Hunt y. Searcy, 167
Mo. 158, 67 S. W. 206 ; State y. Billings, 55 Minn. 467, 57 N. W. 794, 43 Am.
St Rep. 525 ; Van Deusen y. Newcomer, 40 Mich. 90 ; In re Walker, 57 App.
Div. 1, 67 N. Y. Supp. 647 ; People y. Baker, 59 Misc. Rep. 359, 110 N. Y. Supp.
848; People y. Wendel, 33 Misc. Rep. 496, 68 N. Y. Supp. 948; In re Boyett,
136 N. G. 415, 48 S. E. 789, 67 L. R. A. 972, 103 Am. St Rep. 944 ; In re Cross-
well's Petition, 28 R. I. 137, 66 AU. 55 ; State y. Snell, 46 Wash. 327, 89 Pac.
931, 9 L. R. A. (N. S.) 1191. Bee ''Constitutional Law,** Dec. Dig. (Key No.) |
255; Cent. Dig. S 757; "Insane Persons," Dec. Dig. (Key No.) f 49; Cent. Dig.
§§ 78^0. .
87 In re Stegenga, 133 Mich. 55, 94 N. W. 385, 61 L. R. A. 763. But see
City of St Louis y. Gloner, 210 Mo. 502, 109 S. W. 30, 15 L. R. A. (N. S.) 973,
124 Am. St Rep. 750; Ex parte Smith, 135 Mo. 223, 36 S. W. 628, 33 L. R.
A. 606, 58 Am. St R^. 576. Bee "Constitutional Laic" Dec. Dig. (Key No.)
f 8S; Cent. Dig. Sf 150-151^^.
88 City of Portland y. Bangor, 65 Me. 120, 20 Am. Rep. 681. Bee "Constitu-
tional Law," Dec Dig. (Key No.) f 268; Cent. Dig. % 157.
§§ 20a-205) PERSONAL LIBEBTT. 639
of the state. This power of the state can have but few applications
in practice, but those are highly important. The most conspicuous is
the right to compel citizens, by draft or conscription, to serve in its
armies in time of war.
The second class of limitations upon the right of personal liberty
includes such as are rendered necessary by the helpless, dependent, or
immature condition of those persons to whom they apply. These
limitations are not imposed by the state, but are recognized and al-
lowed by its laws. They depend, as a rule, on the constitution of the
family, or on relations analogous thereto. This class includes the
lawful control of a parent over the liberty of his children, of a guard-
ian over that of his ward, of a master over his apprentice, of a teacher
over his pupil.** In this category belongs also the common law power
of a husband over his wife. But as this has been reduced, by the
progress of enlightened opinion and the gradual emancipation of wo-
men, to a minimum, it scarcely requires mention in this connection.
There are some few anomalous conditions in which one person has
the right to put restraint upon the liberty of another, which belong in
this class of limitations, but do not depend on the domestic relations.
Thus, parties who have become bail for another in legal proceedings
are regarded in law as his friendly jailers, and they have a legal right
to have the custody of him, for the purpose of delivering him up to
the officers of justice in due time.** Creditors had the power to put
restraint upon the liberty of their debtors so long as laws authorizing
imprisonment for debt remained upon the statute books. But these
laws have now been almost universally abolished by the constitutions,
and it may be said that this coercive measure is no longer. available in
any jurisdiction for the collection of a mere civil debt.*^ But these
constitutional provisions have no application to criminal proceedings
and do not prevent imprisonment to force the payment of fines, pen-
alties, or costs imposed in such cases,** and an exception is ordinarily
*• People ▼. Turner, 55 111. 280, 8 Am. Rep. 645 ; State v. Shorey, 48 Or.
800, 86 Pac. 881 : In re Sharp, 15 Idaho, 120, 06 Pac. 5C3, 18 L. R. A. (N. S.)
886. See ''Constitutional Law,'* Dec. Dig. (Key Vo.) ff ftSS, 275, 270, t78;
^^Reformatories,** Cent. Dig. % X.
40 In re Von Der Ahe (C. C.) 85 Fed. 059. See '*Con9titutional Laio,** Dec.
Dig. (Key No.) f 262; Cent. Dig. f 752.
4i Peonage Cftsea (D. G.) 123 Fed. 671 ; E}x parte MHecke, 52 Wash. 812, 100
Pac 743, 21 U R. A. (N. S.) 250. See ''ConstUutional Late:* Dec. Dig. (Key
No.) I 83; Cent. Dig. ff ISO-lSlVn.
«s Bx parte Dig, 86 Miss. 507, 38 South. 730 ; Clark t. State, 171 Ind. 104,
540 CIVIL BIGHTS AND THBIB PROTECTION. (Ch. 18
made as to debts contracted in fraud.** A commitment for contempt
for failing to comply with an order of court requiring the payment
of money is not imprisonment for debt,** and this nile is applied to
the enforcement of money decrees for the payment of alimony.**
ABOLinOir OF BULVEBT.
206. The eonstltiition of the United States, in the thirteenth amend-
ment, f oreTer abolishes and prohibits slavery, or InTolvntary
servitude, ezeept as a pwnlshment for erime whereof the party
shall have been dnly eonvieted, thronsbont the United States
and all plaoes snbjeot to their Jnrisdietion*
The constitution originally recognized the existence of slavery as
a fact, though referring to it in obscure and guarded terms. Congress
was authorized to forbid the further importation of slaves after the
year 1808, and provision was made for the surrender of fugitive
slaves. In this respect, the constitution differed from the contempo-
rary law of England, where it had been recently declared from the
bench that slavery was repugnant to the common law, that a slave
brought into England by his master was by that mere fact emancipated,
and that a person forcibly detained on English soil as a slave was
entitled to be discharged on habeas corpus.**
But the emancipation of the slaves was effected by executive procla-
mation, during the continuance of the civil war, and was made real
84 N. B. 08* ; Peterson v. State. 79 Neb. 132. 112 N. W. 306, 14 L. R. A. (N.
S.) 292, 128 Am. St Rep. 651. Bee **Con8titutional Law,** Dec. Dig. (Key A^o.;
S 83; Cent. Dig. SS 150-151^^.
4« Moore v. Mullen, 77 N. C. 327; Baker v. State, 109 Ind. 47, 9 N. E. 711;
Wendover v. Tucker, 4 Ind. 381; Lamar v. Prosser, 121 Ga. 153, 48 S. E. 977;
Lamar y. State, 120 Qa. 312, 47 S. E. 958; State y. Vann, 150 Ala. 66, 43
South. 357 ; State y. Basterlin, 61 S. G. 71, 39 S. E. 250. See ^'Constitutional
Law," Dec. Dig. (Key No.) f 8S; Cent. Dig. | i51%.
4* Perry y. Pemet, 165 Ind. 67, 74 N. E. 609; Land y. State, 84 Ark. 199,
105 S. W. 90, 120 Am. St Rep. 25; Burbaeh y. Milwaukee Electric Ry. &
Light Co., 119 Wis. 384, 96 N. W. 829. A bankrupt may be imprisoned until
he obeys an order of court requiring him to turn over money or property to
his trustee. Mueller y. Nugent, 184 U. S. 1, 22 Sup. Gt 269, 46 L. Ed. 405.
See "Constitutional Law," Dec Dig. (Key No.) { 8S; Cent. Dig. §f ISO-lSlVi-
«BBronk y. State, 43 Fla. 461, 31 South. 248, 99 Am. St Rep. 119; Barclay
y. Barclay, 184 lU. 375, 56 N. E. 636, 51 L. R. A. 351 ; State y. Gook, 66 Ohio
St. 566, 64 N. E. 567, 68 L. R. A. 625. See "Constitutional Law," Deo. Dig.
(Key No.) $ 8S; Cent. Dig. ff ISO-lSl^.
46 Sonunersett'fl Case, 20 How. St Tr. 1; Broom, Const Law, 69.
§ 206) ABOLITION OF flULYBBT. S41
by the armies of the north in their progress through the insurgent
territory. Then came the thirteenth amendment, which assured its
perpetual abolition throughout all the domain of the United States.
The language of the amendment is plain, and has called for but little
interpretation at the hands of the courts. The only controversy has
been as to the meaning of the phrase "involuntary servitude." It was
probably added to guard against the establishment of any species of
compulsory service, which might differ from perpetual slavery only
in its restriction to a term of years. But it was then necessary to
make an exception, allowing such involuntary servitude as a punish-
ment for crime, in order not to deprive the states of the power to
sentence convicts to labor in the penitentiaries.^^ In this connection,
doubt may arise as to the validity of what is known as the "convict
lease system," in vogue in some of the states, by which the labor of
convicts is let out to private contractors who are to employ them in
or near the prison and under the superintendence of its officers. But
the validity of such laws has not been successfully impugned. It is
said : "The state acquires an ownership in the services of all persons
convicted of crime, and duly sentenced therefor to confinement in
the penitentiary, which, guarded by certain humanitarian principles,
is treated and protected as a valuable property." *• Although the thir-
teenth amendment would not invalidate indentures of apprenticeship
as that system obtained at common law, yet an act of congress passed
in 1874 made it a felony to import into the United States any person
inveigled, kidnapped, or sold into involuntary service with intent to
hold such person in confinement or to involuntary labor. This act
was principally directed against the "padrone system," practiced chiefly
in Italy, by which children were bought to serve as street musicians
and beggars, and ignorant laborers decoyed into selling their free-
dom and labor for a term of years. Its validity has been sustained,
«T stone T. Paducah» 120 Ky. 322« 86 B. W. 531. But compulsory labor In
Jails and prisons cannot be Imposed on persons who are committed to those
institutions for other causes than as a punishment for crime. Id. 8ee ^Ooip-
stitutianal Law," Dee. Dig. (Key So,) f SS; Cent. Dig. §S /50-/5/%.
4* Comer y. Bankhead, 70 Ala. 4d3. And see Mason ft Foard Ck>. y. Main
JelHco Mountain Coal Co., 87 Ky. 467, 0 S. W. 391. But a statute authorizing
a '^vagrant,'* even though not accused or conyicted of any crime, to be hired
for six months to the highest bidder, contravenes the proYlsionB of the con-
stitutions in respect to involuntary servitude. In re Thompson, 117 Mo. 88,
22 S. W. 863, 20 L. B. A. 462, 38 Am. St Bep. 639. Bee **CoMtituHonal Law,**
Dec Dig. (Key No.) | 83; Cent. Dig. 1 161; ^'Convicts,*' OetU. Dig. | 28.
542 CIVIL BIGHTS AND THEIR PROTECTION. (Ch. 18
and it is well in accordance with the spirit and the terms of the thir-
teenth amendment/* But the performance of work upon an assess-
ment or levy payable in labor for the repair of roads and streets is
not that kind of involuntary servitude intended by the constitution.'*
But it is held that a statute providing that if an agricultural laborer,
willfully and without just cause, fails to give the labor reasonably re-
quired of him by the terms of his contract, or in other respects shall
refuse to comply with the conditions of his contract, he shall be liable
to fine or imprisonment, is repugnant to this provision of the con-
stitution.** But the statute authorizing the apprehension and return
of deserting seamen to their vessels is not contrary to the constitu-
tional prohibition.**
It should be noticed that the thirteenth amendment is not restricted
in its prohibitions to any race or class of people. Its terms are gen-
eral. "Neither slavery nor involuntary servitude" shall exist. And
consequently, as remarked by the supreme court, "while negro slavery
alone was in the mind of the congress which proposed the thirteenth
article [amendment] it forbids any other kind of slavery now or here-
after. If Mexican peonage or the Chinese cooly labor system shall
develop slavery of the Mexican or Chinese race within our territory,
this amendment may safely be trusted to make it void." ** A custom
or rite prevailing among the uncivilized tribes of Indians in Alaska,
whereby slaves are bought, sold, and held in servitude, against their
free will, and subjected! to ill treatment at the pleasure of the owner,
is contrary to the thirteenth amendment, and a person so held in slavery
will be released by order of the court on habeas corpus.**
*• U. S. V, Ancarola (a C.) 1 Fed. 676. See "JSTWnappinf?," Dec. Dig. (Key
yo.) Si; Cent. Dig. SI 1. 4-
BO In re Dassler, 35 Kan. 678, 12 Pac. 130. See **Con8Ututional Late,** Dec.
Dig. (Key No.) S 8S; Cent. Dig. S 151.
Bi Ex parte Drayton (D. C.) 153 Fed. 986; Toney v. State, 141 Ala. 120. 87
South. 332, 67 L. R. A. 286, 109 Am. St. Rep. 23. Compare Ex parte Williams,
32 S. O. 583, 10 S. E. 551 ; State v. Murray, 116 La. 655, 40 South. 930 ; Potts
v. Riddle, 5 Qa. App. 378, 63 S. El 253 ; Bailey y. State (Ala.) 49 South. 886.
See "Constitutional Law,*' Dec. Dig. (Key Tfo.) SS S$, 88, 206; Cent. Dig. U
151, 15^1^.
62 Robertson t. Baldwin, 165 U. S. 275, 17 Sup. Ct. 326, 41 L. Ed. 715. Bee
^'Constitutional Law," Dec. Dig. (Key No.) % 8S; Cent. Dig. SS 150-151^.
Bs Slaughterhouse Cases, 16 Wall. 36, 21 L. Ed. 394, Miller, J. See ^'Oon-
stitutional Law," Dec. Dig. (Key No.) S 8$; Cent. Dig. S 151.
K4 In re Sah Quah (D. 0.) 31 Fed. 327. Bee '^Slaves,'* Deo. Dig, (Key No.)
S 24; Cent. Dig. S 119.
§ 207) BIGHT TO BBAR ABMS. 643
SIGHT TO BEAR ABM 8.
I
807. Tlie M«<nid anmn<i«ent to tlM federal eoiuititntioat as well as tke
eo&stitiitioiui of auMiy of the etates» swaraatj to the people the
visht to bear ai
This is a natural right, not created or granted by the constitutions.
The second amendment means no more tiian that it shall not be de-
nied or infringed by congress or the other departments of the national
government. The amendment is no restriction upon the power of the
several states.** Hence, unless restrained by their own constitutions,
the state legislatures may enact laws to control and regulate all mili-
tary organizations, and the drilling and parading of military bod-
ies and -associations, except those which are authorized by the militia
laws or the laws of the United States.'* The "arms" here meant are
those of a soldier. They do not include dirks, bowie knives, and such
other weapons as are used in brawls, fights, and riots. The citizen has
at all times the right to keep arms of modem warfare, if without dan-
ger to others, and for purposes of training and efficiency in their use,
but not such weapons as are only intended to be the instruments of
private feuds or vengeance.*' The right to bear arms is not infringed
by a state law prohibiting the carrying of concealed deadly weapons.
Such a law is a police regulation, and is justified by the fact that the
practice forbidden endangers the peace of society and the safety of
individuals.**
ftftU. S. ▼. Gnilkshank, 92 U. S. 542, 23 L. Ed. 588. See *'Con8UtuiU>nal
Law,** Dec. Dig. (Key No.) | 27; Cent. Dig. | SI.
»« Presser v. IllinolB, 116 U. S. 252, 6 Sup. Ct 580, 29 L. Ed. 615 ; C!ommon-
wealth y. Murphy, 166 Mass. 171, 44 N. E. 138, 32 L. B. A. 606. See "Weap-
ont,'* Dec. Dig. (Key No.) f S; Cent. Dig. f S.
«T English T. State, 35 Tex. 473, 14 Am. Rep. 374 ; Fife T. State, 31 Ark
455, 25 Am. Rep. 556; State v. Workman, 35 W. Va. 367, 14 S. E. 9, 14 L. R.
A. 600. See "Conatitutional Law,** Dec Dig. (Key No.) |S 86, 278; Cent. Dig.
fl 155, 816; ''Weapons;' Dec. Dig. (Key No.) H IS; Cent. Dig. f{ IS.
fts State T. Wilforth, 74 Mo. 528, 41 Am. Rep. 330 ; Halle y. State, 38 Ark.
564, 42 Am. Rep. 8; Wright v. Commonwealth, 77 Pa. 470; State t. Speller,
86 N. a 697. See ''Weapons,** Dec Dig. iKey No.) | S; Cent. Dig. I 5.
544 CIYIL BIOHTS AND THflIB PBOTBCTION. (Ch. 18
THE PUB8UIT OF HAJPFHTESB.
208. All men mx% lATested with a lUktwralp ialierentt aiud laalieiukblo
rlsht to tlM pwrrait of happlaess.
This principle is formally declared in the constitutions of many of
the states. And moreover the framers of the Declaration of Inde-
pendence announced that they "held these truths to be self-evident,
that all men are created equal ; that they are endowed by their Creator
with certain inalienable rights ; that among these are life, liberty, and
the pursuit of happiness." This latter expression is one of a general
nature, and the right thus secured is not capable of specific definition
or limitation, but is really the aggregate of many particular rights,
some of which are enumerated in the constitutions, and others included
in the general guaranty of "liberty." The happiness of men may con-
sist in many things or depend on many circumstances. But in so far
as it is likely to be acted upon by the operations of government, it
is clear that it must comprise personal freedom, exemption from op-
pression or invidious discrimination, the right to follow one's individual
preference in the choice of an occupation and the application of his
energies, liberty of conscience, and the right to enjoy the domestic
relations and the privileges of the family and the home. The search
for happiness is the mainspring of human activity. And a guarantied
constitutional right to pursue happiness can mean no less than the
right to devote the mental and physical powers to the attainment of
this end, without restriction or obstruction, in respect to any of the par-
ticulars just mentioned, except in so far as may be necessary to secure
the equal rights of others. Thus it appears that this guaranty, though
one of the most indefinite, is also one of the most comprehensive to
be found in the constitutions.
EQUAI. PBOTEOTION OF THE JJLWB.
209. By tlie terms of the f ourteentli amendment to the federal oonsti-
tntion, the states are forbidden to deny to any person within
their Jnrisdietion the equal protection of the laws.
Meaning and Effect of Prohibition.
This clause does not undertake to confer new rights, but is simply
prohibitory of certain kinds of state action or legislation.** It means
»• Younger v. Judah, 111 Mo. 303, 19 S. W. 1109, 16 U R. A. 558, ^ Am.
St. Rep. 527. But see Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664.
See ^^Constitutional Law,'* Deo. Dig. (Key No.) f 209; Cent. Dig. | ^78.
§ 209) EQUAL PROTECTION OV THE LAW. 545
that no person or class of persons shall be denied the same protec-
tion of the laws which is enjoyed by other persons and classes sim-
ilarly situated, the object being to prevent arbitrary and invidious dis-
criminations and class legislation not founded on legal and reasonable
grounds of distinction.** The provision is a limitation on state action
only, not on the legislative power of congress; *^ but it is not limited
in its scope to a statute as it comes from the hands of the legislature,
but extends to all agencies and instrumentalities officially employed
in the execution of the law, so that if state officers, boards, or commis-
sions, in the exercise of their official authority, deny to any citizen,
whether an individual or a corporation, the equal protection of the
laws, their act is that of the state and is a violation of the fourteenth
amendment.**
If the word ''protection," as here used, were to be taken in a strict
sense, it would mean no more than the right to call to one's aid the
laws of the state, attended by all their machinery of justice, for the
averting or redress of injuries or oppressions ; and undoubtedly this
is included within the intention of the constitution.** And it is un-
lawful to prevent or penalize the resistance of persons or corporations
to laws which they may deem injurious or oppressive, by visiting
them, on their attempt to do so, with such excessive and ruinous pen-
alties or such a multiplicity of prosecutions or such danger of heavy
fines and imprisonment as to intimidate them and prevent them from
seeking relief in the courts; this amounts to denying the equal pro-
«o Miller T. BirmlniTliam, 151 Ala. 4G9, 44 South. 388, 125 Am. St. R^. 81 ;
People v. Mete, 1»3 N. T. 148. 85 N. E. 1070 ; In re Van Home (N. J. Ch.) 70
Atl. 986; Apex Transp. Co. v. Garbade. 32 Or. 582, 64 Pac. 367, 62 L. R. A.
513. See '^Constitutional Law,'' Dec. Dig, (Kej/ No.) f 209; Cent. Dig. % 678.
•1 United States v. Adair (D. C.) 152 Fed. 737. Sec ''Commerce,'* Dec. Dig,
(Key No.) IS 10, 16, 58; Cent. Dig. fS 8, 77-86; *'Con8titutional Law," Deo.
Dig. (Key No.) |f 208, 276; Cent. Dig. fiS 649-^7, 845, 846.
•« Raymond ▼. Chicago Union Traction Co., 207 U. S. 20, 28 Sup. Ct 7. 52
li. Ed. 78; Atlantic Coast Line R. Co. v. North Carolina Corp. Commission,
206 U. S. 1, 27 Snp. Ct. 585, 61 L. Ed. 083 ; Central of Georgia R. Co. v. Rail-
road Commission of Alabama (C. C.) 161 Fed. 925; Douglas Park Jockey Club
▼. Grainger (C. C.) 146 Fed. 414; Jew Ho v. Williamson (C. C.) 108 Fed. 10;
Nashville, C. ft St L. R Co. t. Taylor (C. C.) 86 Fed. 168 ; Rlsley t. UUca (C
C.) 168 Fed. 737. See "Constitutional Law," Deo. Dig. (Key No.) || 209, 229,
251, 284.
•s In re Flukes, 167 Mo. 1^ 67 S. W. 545, 6 L. B. A. 176, 80 Am. St Rep.
619. But see Corbin t. Houlehan, 100 Me. 246, 61 Atl. 131, 70 L. R. A. 568,
as to police regulations. See "Constitutional Law,*' Deo, Dig. (Key No.) |
249; Cent. Dig. f 710.
Bl.Oon8T.L.(8d.Ed.)— 85
546 CIVIL RIGHTS AND THBIR PROTECTION. (Ch. 18
tection of the laws.** But the fourteenth amendment does not re-
quire that all persons shall have the right of hearing or trial before
the same tribunal with the same right of appeal ; but a law which op-
erates alike on all persons under like circumstances, in these respects,
satisfies the requirement of the constitution. •' Nor does this clause
secure to any one a right of trial by jury or interfere in any way
with the grant or denial of that method of trial ; •• and generally
speaking, it has nothing to do with the jurisdiction, proceedings, or
judgments of the courts.*'
What Persons Protected.
While it is true that the fourteenth amendment was primarily in-
tended to secure the rights, and the equality before the law, of the
colored race, yet its terms are so broad as to guaranty these advantages
to any person, of any class or race, against whom the laws of a state
may make invidious discriminations. No state shall deny to "any per-
son within itsJtirjgf]irtion'' thf* ^q"a1 proteLllUU uf Ihw Uwo. Hence it
«4 Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A.
(N. S.) 982; Central of Georgia R. Co. v. Railroad Commission of Alabama,
(C. C.) 161 Fed. 925 ; Consolidated Gas Co. v. New York (O. C.) 167 Fed. 849 ;
Ex parte Wood <0. C.) 155 Fed. 190; Consolidated Gas Co. v. Mayer (C. C.) 146
Fed. 150 ; Bonnett v. Valller, 136 Wis. 193, 116 N. W. 885, 17 L. R. A. (N. S.)
486, 128 Am. St Rep. 1061. See "Constitutional Law,** Dec. Dig, (Key No.)
§ 247; Cent. Dig. | 70S.
•» Cleveland, C, C. & St L. R. Co. v. Backus, 133 Ind. 513, 33 N. B. 421, 18
L. R. A. 729. Corporations are not denied the equal protection of the laws by
a statute under which they may be compelled to produce their books and
papepi before a court or grand Jury, though private persons are not placed
under the same compulsion. Conmlidated Rendering Co. t. Vermont, 207
U. S. 541, 28 Sup. Ct 178, 52 L. Ed. 327. As to a statute allowing an appeal
or review to one of the parties to a litigation, but denying it to the other, see
Zolnowski V. Illinois Steel Co., 233 111. 299, 84 N. E. 225. Compare United
States V. Bitty, 208 U. S. 393, 28 Sup. Ct. 396, 52 L. Ed. 543. See 'Vonstiti^
tional Law,'* Deo. Dig, (Key No.) §| 229, 2^9, 250; Cent. Dig. f 685.
•• Wilson V. North Carolina, 169 U. S. 586, 18 Sup. Ct 435, 42 L. Ed. 865 ;
Gunn V. Union R. Co., 27 R. I. 320, 62 Atl. 118, 2 L. R. A. (N. S.) 362. See
'^Constitutional Law,** Dec. Dig, (Key No.) S 2^9; Cent, Dig. f 710.
•7 State V. Aloe, 152 Mo. 466, 54 S. W. 494, 47 L. R. A. 393 ; Backus v. Fort
St Union Depot Co., 169 U. S. 557, 18 Sup. Ot 445, 42 L. Ed. 853. Where three
persons are convicted of a criminal conspiracy, and two ere sentenced to im-
prisonment for ten years, they are not denied the equal protection of the
laws because their codefendant receives a sentence of only seven years. How-
ard V. Fleming, 191 U. S. 126, 24 Sup. Ct. 49, 48 L. Ed. 121. See **ConstUur
tional Loio,** Dec. Dig. (Key No.) §§ 2^9, 250; Cent. Dig. f| 710-71S.
§ 209) EQUAL PROTECTION OF THB LAW. 547
may be invoked by whites as well as blacks, by Chinese or Japanese/*
by Jews as well as Gentiles,** by women as well as men, and by chil-
dren as well as adults, though as to females and minors the provision
does not abrogate the power of the state to make reasonable police
regulations for their special protection or welfare;'* and generally,
the benefit of this clause extends to all persons within the jurisdiction
of the state, without regard to race, color, sex, or place of nativity.
It is not even restricted to American citizens or to inhabitants of the
particular state, but may be claimed by aliens and by residents of other
states if lawfully within its jurisdiction.'^ And moreover it is held
that the word "person" as here used includes private corporations."
Civil Rights Acts.
The fourteenth amendment gives to congress the power to enforce
its provisions by appropriate legislation. In pursuance of this au-
thority, congress, in 1875, passed an act, commonly called the "Civil
Rights Act,*' whereby it was provided that "all persons within the
•8 Ah Sin ▼. Wittman, 198 U. S. 600, 25 Sup. Ct 756, 49 L. Ed. 1142; Wong
Him v. Callahan (C. C.) 119 Fed. 381 ; Wong Wal v. Williamson (C. C.) 103
Fed. 1; In re Parrott (C. C.) 1 Fed. 481, 6 Sawy. 349. See "Constitutional
Law,** Dec. Dig, (Key No.) S| 210, 215; Cent. Dig. ff 679, 7U--724.
«• CJohn v. Townsend, 48 Mlac. Rep. 47, 94 N. Y. Supp. 817. Bee "Constitu-
tional Law,** Dec. Dig. (Key Xo.) § 220; Cent. Dig. f 72S.
^ocronln v. Adams, 192 U. S. 108, 24 Sup. Ct. 219, 48 L. Ed. 365; Carri-
thers V. ShelbyviUe, 126 Ky. 769, 31 Ky. Law Rep. 1166, 104 S. W. 744, 17 L.
R, A. (N. S.) 421 ; People v. Case, 153 Mich. 98, 116 N. W. 558, 18 L. R. A.
(N. S.) 657 ; Hoboken v. Goodman, 68 N. J. Law, 217, 51 Atl. 1092 ; Starnes v
Albion Mfg. Co.. 147 N. C. 550, 61 S. B. 525, 17 L. R. A. (N. S.) 602. See "Con-
stitutional Law;* Dec. Dig. (Key No.) {§ 22i, 288, 296; Cent. Dig. §f 688-699,
125, 825-^46.
Ti Tick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct 1064, 30 Lw E^d. 220; Fraser
V. McConway & Torley Co. (C. C.) 82 Fed. 257; State v. Travelers' Ins. Co.,
TO Conn. 590, 40 Atl. 465, 66 Am. St. Rep. 138 ; Kldd v. New Hampshire Trac-
tion Co., 72 N. H. 273, 56 Atl. 465, 66 L. R. A. 574 ; Ex parte Hawley (S. D.)
115 N. W. 93, 15 L. R, A. (N. S.) 138 ; Steed r. Harvey, 18 Utah, 367, 54 Pac.
1011, 72 Am. St Rep. 789. See "Constitutional Law," Dec. Dig. (Key No.) f
210; Cent. Dig. ff 679, 680.
T2 Santa Clara County v. Southern Pac. R. Co., 118 U. S. 394, 6 Sup. Ct
1132, 30 L. Ed. 118 ; Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct 418, 42 L. Ed.
819 ; Chicago, R. I. & P. R. Co. v. State, 86 Ark. 412, 111 S. W. 456 ; Johnson
V. Goodyear Mln. Co., 127 Oal. 4, 59 Pac. 304, 47 L. R. A. 338, 78 Am. St Rep.
17; McOuire r. Chicago, B. & Q. R. Co., 131 Iowa, 340, 108 N. W. 902; Ham-
mond Beef ft Provision Co. v. Best, 91 Me. 431, 40 Atl. 338, 42 L. R. A. 528 ;
Phlpps V. Wisconsin Cent R. Co., 133 Wis. 153, 113 N. W. 456. See ^'Consti-
tutional Law,** Dec. Dig. (Key No.) % 210; Cent. Dig. | 680.
548 CIVIL BIGHTS AND THEIB PROTECTION. (Ch. 18
jurisdiction of the United States shall be entitled to the full and equal
enjoyment of the accommodations, advantages, facilities, and priv-
ileges of inns, public conveyances on land or water, theatres, and other
places of public amusement; subject only to the conditions and limi-
tations established by law, and applicable alike to citizens of every race
and color, regardless of any previous condition of servitude." But
this statute was adjudged unconstitutional and void, in so far as it ap-
plied to the states generally, and was not restricted to the places over
which congress has the power of direct legislation. The reason of
this decision was this: The legislation authorized to be adopted by
congress for enforcing the fourteenth amendment is not direct and
primary legislation on the matters respecting which the states are pro-
hibited from making or enforcing certain laws, or doing certain acts,
but is corrective legislation, such as may be necessary or proper for
counteracting or redressing the effect of such laws or acts. The
amendment simply furnishes an additional guaranty against any en-
croachment by the states upon the fundamental rights which belong
to every citizen as a member of society. The duty of protecting all
its citizens in the enjoyment of an equality of rights was originally
assumed by the state, and it still remains there. The only obligation
resting upon the United States is to see that the states do not deny
the right. This the amendment guaranties, but no more. The power
of the national government is limited to the enforcement of this guar-
anty.'*
Civil rights statutes have also been enacted in several of the states.
They provide generally that there shall be no exclusion or discrimina-
tion against citizens of the state, on account of race, color, or previous
condition of servitude, in respect to their equal enjoyment of the ac-
commodations, privileges, or facilities furnished by railroads or other
carriers, inn-keepers, proprietors of theatres and other places of
amusement, teachers and officers of public schools, etc. These laws
are sustained as valid and constitutional enactments. They are not
regarded as unlawfully interfering with private rights of property.'*
Tsdvll Rights Cases, 109 U. S. 8, 8 Sup. Ot 18, 27 L. Ed. 835; U. S. v.
Cralkshank, 92 U. 8. 542, 23 L. Ed. 588. See, also, U. S. ▼. Newcomer, 11
Phlla. 619, Fed. Gas. No. 15,868; U. S. v. Rhodes, 1 Abb. U. S. 28, Fed. Cas.
No. 16,151 ; In re Turner, Chase, 157, Fed. Cas. No. 14,247 ; Rlggins v. United
States, 199 U. S. 547, 26 Sup. Ct 147, 50 L. Ed. 303. See "Constitutional Law,''
Dec. Dig, {Key No.) f 209; Cent. Dig. | ^78.
T* People T. King, 110 N. Y. 418, 18 N. E. 245, 1 L. R. A. 293, 6 Am. St Rep.
399; Donnell ▼. State, 48 Miss. 661, 12 Am. Rep. 375; Joseph v. Bidwell,
6 209) BQUAL PBOTBOnON OV THB LAW. 649
Local or Special Laws not Prohibited.
This provision of the constitution does not require absolute uni-
formity of laws and judicial administration throughout the state, pro-
vided that all persons who are subject to the same laws enjoy the
benefit of them equally. "If diversities of laws and judicial pro-
ceedings may exist in the several states without violating the equality
clause in the fourteenth amendment, there is no solid reason why there
may not be such diversities in different parts of the same state. A
uniformity which is not essential as regards different states cannot be
essential as regards different parts of a state, provided that in each and
all there is no infraction of the constitutional provision. Diversities
which are allowable in different states are allowable in different parts
of the same state. Where part of a state is thickly settled, and another
part has but few inhabitants, it may be desirable to have different sys-
tems of judicature for the two portions, — ^trial by jury in one, for ex-
ample, and not in the other. Large cities may require a multiplica-
tion of courts and a peculiar arrangement of jurisdictions. It would be
an unfortunate restriction of the power of the state government if
it could not, in its discretion, provide for these various exigencies." *•
No constitutional objection can be taken on this ground to a state
local option law which permits the sale of liquor in some parts of the
state and forbids it in others,^* nor to a statute which makes certain
acts criminal offenses only when done in particular localities.^^
28 La. Ann. 382, 26 Am. Rep. 102 ; Ferguson v. Gles, 82 Midi. 358, 46 N. W.
718, 0 L. R. A. 089, 21 Am. St. Rep. 576 ; Baylies y. Curry, 128 ni. 287, 21 N.
E. 595. Bee ^'ConstUutUmdl Law,** Dec. Dig. {Key No.) f| 89, tl5; Cent. Dig.
S§ 150, 714; "'Civil Rights,** Dec. Dig. (Key No.) ff /, 6; Cent. Dig. H i, 9.
T6 Missouri r. Lewis, 101 U. S. 22, 25 L. Ed. 989 ; Hayes T. Missouri, 120 U.
& 68» 7 Sup. Ct 350, 30 L. Ed. 578 ; Hark y. Kansas City, 176 U. S. 114, 20
Sup. Ct 284, 44 L. Ed. 392 ; Williams y. Eggleston, 170 U. S. 304, 18 Sup. Ct
617, 42 L. Ed. 1047; Lewis y. Brandenburg, 105 Ky. 14, 48 S. W. 978, 20 Ky.
Law Rep. 1011 ; Rothermel y. Meyerle, 136 Pa. 250, 20 Atl. 583, 9 L. R. A. 36a
But see Bessette y. People, 193 111. 334, 62 N. E. 215, 56 L. R. A. 55a Bee
"^ConetitutionaX Law,** Dec. Dig. (Key No.) | 225; Cent. Dig. H 681, 6S2; **8tat'
utes,** Dec. Dig. (Key No.) §( 66-104; Cent Dig. H 67-116.
T« Ohio Y. Dollison, 194 U. S. 445, 24 Sup. Ct 703, 48 L. Ed. 1062; Sheppard
Y. Dowling, 127 Ala. 1, 28 South. 791, 85 Am. St Rep. 68 ; Webster y. State,
110 Tenn. 491, 82 S. W. 179. Bee "Constitutional Law,'* Dec Dig. (Key No.)
I 240; Cent. Dig. ff 688-699.
7T People Y. Hanrahan, 75 Mich. 611, 42 N. W. 1124, 4 L. R. A. 707. See
Statutes;* Dec. Dig. (Key No.) | 106; Cent. Dig. f 119.
M
550 CIVIL BIGHTS AND THEIR PROTECTION* (Ch. 18
Class Legislation.
The eqtiality clause of the fourteenth amendment does not forbid a
state legislature to distinguish, select, and classify the objects of legis-
lation, or to arrange persons, classes, property, trades, or professions
in different categories, with reference to the imposition of burdens or
taxes upon them^ or the restriction or regulation of their business,^*
provided the laws bear equally and alike upon all those actually or
, properly within the same class,^* and provided that the. system of
classification is not arbitrary or capricious, but rests on some reason-
able and substantial ground of distinction, growing out of public
policy or prevalent economic or social conditions or the diverse nature
of the trades or forms of business affected, and having some real
relation to the object sought to be accomplished.*® For example, it
is held that there is a reasonable and sufficient ground for imposing
different duties or obligations upon corporations on the one hand and
upon private persons or unincorporated associations upon the other,*^
T8 Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 18 Sup. Ct 694;
42 L. Ed. 1037; Grainger v. Douglas Park Jockey Club, 148 Fed. 513, 78 C.
C. A. 199 ; Kane v. Erie R. Co., 133 Fed. 681, 67 C. C. A. 653, 68 L, R. A. 788 ;
Williams v. State, 85 Ark. 464, 108 S. W. 838, 122 Am. St. Rep. 47; Owen
County Burley Tobacco Soc. v. Brumback, 128 Ky. 137, 32 Ky. Law Rep.
010, 107 S. W. 710; Farmers* & Merchants* Ins. Co. v. Dobney, 62 Neb. 213,
86 N. W. 1070, 97 Am. St. Rep. 624 ; Elf and v. Southern Ry. Co., 146 N. C. 135.
59 S. E. 355. See "Constitutional Law," Dec. Dig. {Key No.) S$ 208-250; Cent.
Dig. if 649-713.
7» Missouri Pac. R, Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct 1161. 32 L. Ed.
107; Badenoch v. Chicago, 222 111. 71, 78 N. E. 31 ; Needham v. State, 51 Tex.
Cr. R. 248, 103 S. W. 857 ; Commonwealth v. Clark, 105 Pa. 634, 46 Atl. 286,
67 L. R. A. 348, 86 Am. St. Rep. 694 ; State v. Holland. 37 Mont. 393, 90 Pac.
719; St. Louis, I. M. & S. R. Co. v State, 86 Ark. 518, 112 S. W. 150. See
"Constitutional Law;* Dec. Dig. {Key Vo.) f 20S; Cent. Dig. Sf 649-677.
80 Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 18 Sup. Ct. 594,
42 li. Ed. 1007 ; Grainger v. Douglas Park Jockey Club, 148 Fed. 513, 78 C.
C. A. 199; Dlepenbrock v. Superior Court of Sacramento County, 153 Cal.
597, 95 Pac. 1121 ; Lappin v. District of Columbia, 22 App. D. C. 68 ; Sellers
V. Hayea, 163 Ind. 422, 72 N. B. 119 ; Charles J. Off & Co. v. Morehead, 235
IlL 40, 85 N. E. 264, 20 L. R. A- (N. S.) 167, 126 Am. St Rep. IW ; McCutchen
V. Atlantic Coast Line R. Co., 81 S. a 71, 61 S. E. 1108 ; Ex parte Hollman,
79 S. C. 9, 60 S. E. 19, 21 L. R. A. (N. S.) 242. See "Constitutional Law," Deo.
Dig. (Key No.) |§ 208, 209; Cent. Dig. H 649-678.
81 People V. Butler St. Foundry & Iron Co., 201 111. 236, 66 N. E. 349; Brady
y. Mattem, 125 Iowa, 158, 100 N. W. 358, 106 Am. St. Rep. 291; State ▼.
Standard Oil Co. of Kentucky (Tenn.) 110 S. W. 565. But see Bedford Quar-
ries Co. T. Bough, 168 Ind. 671, 80 N. E. 529, 14 L. R. A. (N. S.) 418; Brad-
§ 209) SQUAL PROTECTION OF THE LAW. 651
or for similar distinctions between domestic and foreign corporations
or between resident and non-resident domestic corporations.*" So
also, railroad companies (or all carriers or all transportation compa-
nies) may be treated as a separate class for purposes of legislation,
provided the laws are equally applicable to all the members of that
class,** and distinctions may further be made between street rail-
ways or interurban roads and steam railways ; ** and it is held that
there is such a difference between the business of insurance and all
other kinds of business as to justify placing insurance companies in
a class by themselves.** Those avocations or pursuits which have
such a relation to the public safety or morals as to justify their regu-
lation under the police power may be made the subject of special legis-
lation,** though even here there must be no arbitrary discrimination
against these trades as compared with other forms of business, or
ford Const Co. v. Heflin, 88 Miss. 814, 42 South. 174, 12 L. R. A. (N. S.) 1040.
See "Constitutional Law,"* Dec. Dig. (Key No.) | 208; OerU. Dig. f| 649-677;
**8tatutes,*' Cent. Dig, §§ 67-95.
8« St. Mary's Franco-American Petroleum Oo. v. West Virginia, 203 U. S.
183, 27 Sup. Ot 132, 51 L. Ed. 144 ; Blue Jacket Consol. Copper Co. y. Scheir,
50 W. Va. 633, 40 S. B. 514. See **Con8titutional Law,'* Deo. Dig. (Key No.) |
208; Cent. Dig, |§ 649-677; ^'Statutes;* Cent. Dig. ff 57-^5.
8s Martin y. Pittsburgh & L. B. IL Co., 208 U. S. 284, 27 Sup. Ct. 100, 51 L.
Bd. 184; New York & N. E. B. Co. y. Town' of Bristol, 151 U. S. 556, 14 Sup.
Ct 437, 38 L. Ed. 26& ; Kelley y. Great Northern Ry. Co. (C. C.) 152 Fed. 211 ;
Chicago, R. I. & P. R. Co. y. State, 86 Ark. 412, 111 S. W. 456; Lewis y.
Northern Pac. R. Co., 36 Mont 207, 92 Pac 460 ; State y. Missouri Pac. R. Co.,
81 Neb. 15, 115 N. W. 614 ; Schradin v. New York Cent & H. R. R. Co. (Sup.)
103 N. Y. Supp. 73 ; McCutchen y. Atlantic Coast Line R. Co., 81 S. C. 71, 61
S. E. 1108; Missouri, K. & T. R. Co. of Texas y. Smith, 45 Tex. Ciy. App. 128,
00 S. W. 743 ; Winchester & S. R. Co. y. Commonwealth, 106 Va. 264, 55 S. B.
602. See ^^Constitutional Law,'* Dec. Dig. {Key No.) ff 208, 241; Cent. Dig.
H 649-677, 700, 701; *' Statutes,** Cent, Dig. ff 67-95.
S4 Southern Ry. Co. y. Railroad Commission of Indiana, 42 Ind. App. 90, 83
N. E. 721. See ''ConstUutional Law,** Dec. Dig. (Key No.) f 242.
SB Carroll y. Greenwich Ins. Co., 199 U. S. 401, 26 Sup. Ct 66, 50 L. Bd. 246 ;
Andrus y. Fidelity Mut Life Ins. Ass'n, 168 Mo. 151, G7 S. W. 582 ; Continen-
tal Fire Ins. Co. y. Whitaker & Dillard, 112 Tenn. 151, 79 S. W. 119, 64 L. R.
A. 451, 105 Am. St Rep. 916. See ^^Constitutional Law,** Deo. Dig. (Key No.)
ff 208, 240; Cent. Dig. ff 651, 692.
•« Ohio y. Dollison, 194 U. S. 445, 24 Sup. Ct 703, 48 L. Ed. 1062; £2z parte
McManus, 151 Cal. 331, 90 Pac. 702. The selection of mineowners as a class
upon which to impose responsibility for the defaults of certain employes does
not render the statute unconstitutional. Wilmington Star Min. Co. y. Ful-
ton, 206 U. S. 60, 27 Sup. Ot 412, 51 L. Bd. 708. See "Constitutional Law,**
Dec Dig. (Key No.) ff 208, 240; Cent. Dig. ff 649-477, 699.
552 CIVIL BIGHTS AND THEIB PROTECTION. (Cb. 18
between the persons following them ; '^ and as to other forms of busi-
ness, reasonable and proper classifications may be made, as for ex-
ample by dividing merchants into wholesale and retail dealers or ar-
ranging the merchants of a city into classes according to the amount
of their sales,** provided no arbitrary exceptions are made or pref-
erences given.** So again, it is not necessary that a statute regu-
lating the sale of goods should embrace all kinds of property, if the
selection of the articles to be dealt with is based on reasonable and
just grounds of difference.** For this reason a law requiring the
general suspension of business on Sunday is not invalid because it
makes an exception as to the following of certain pursuits or the sale
of certain articles having a reasonable relation to the necessities or
the comfort of the public.** Nor is the equal protection of the laws
denied by a statute imposing a heavier penalty for a criminal offense
when committed by a person who has previously been convicted of
a felony,** nor by a law which makes it a penitentiary offense for a
tramp to threaten personal injury to another.**
•T Horwlch V. Walker-Gordon Laboratory Co., 205 111. 497, 68 N. B. 838, 98
Am. St. Rep. 254 ; In re Van Home (N. J. C9i.) 70 Atl. 986 ; City of Laurens
T. Anderson, 75 S. C 62, 65 S. E. 196, 117 Am. St Rep. 885. See Ck>nnolly r.
Union Sewer Pipe Co., 184 U. S. 540, 22 Sap. Ct 431, 46 L. Ed. 679, as to ex-
ception of agricultural products from operation of anti-trust law. See **Cot^
stitutional Law," Dec. Dig. {Key Jfo.) | 208; Cent. Dig. |§ 6^9-677.
••Clark y. Titusville, 184 U. S. 829, 22 Sup. Ct 382, 46 L. Ed. 669; Com-
monwealth T. Clark, 196 Pa. 634, 46 Atl. 286, 57 L. R. A. 348, 86 Am. St Rep.
694. See Bacon r. Walker, 204 U. S. 311, 27 Sup. Ct 289, 51 L. Ed. 499. See
•^Constitutional Law,*' Dec. Dig. (Key No.) | 208; Cent. Dig. H 649-677.
•» City of Watertown v. Rodenbaugh, 112 App. Dlv. 723, 98 N. Y. Supp. 885 ;
State V. Robins, 71 Ohio St 273, 78 N. B. 470, 69 L. R. A. 427 (a statute pro-
viding that surety bonds shall only be signed by surety companies Is invalid) ;
State V. Bayer, 84 Utah, 257, 97 Pac. 129, 19 L. R. A. (N. S.) 297 (as to in-
vidious discrimination against sales by sample of goods produced out of the
state). See "ConstUutUmal Law,** Dec. Dig. (Key No.) | 208; Cent. Dig. H
649-677.
•0 Wilson V. Edwards, 32 Pa. Super. Ct 295. See **Con8titutional Law,**
Dec. Dig. (Key No.) § 208; Cent. Dig. if 649-677.
•1 State V. Justus, 91 Minn. 447, 98 N. W. 325, 64 L. R. A. 510, 108 Am. St
Rep. 521; Ex parte Northnip, 41 Or. 489, 69 Pac. 445; Ex parte DonneUan,
49 Wash. 460, 95 Pac. 1085. But compare City of Denver v. Bach, 26 Colo.
530, 58 Pac 1089, 46 L. R. A. 848. See 'Constitutional Law,** Dec. Dig. (Key
No.) H 208, 240; Cent. Dig. U 660, 695.
•2 McI>onaId v. Massachusetts, 180 U. S. 311, 21 Sup. Ct 389, 45 L. Ed. 542;
98 state V. Hogan, 63 Ohio St 202, 58 N. E. 572, 52 L. R. A. 863, 81 Am. St
Rep. 626. See ''Constitutional Law," Dee. Dig. (Key No.) { 208.
§ 209) EQUAL PBOTEOnOK OF THE LAW. 663
Tckx Laws.
This constitutional provision was not intended to prevent a state
from adjusting its revenue laws in all proper and reasonable ways; it
does not require equality in the levying of taxes, nor prevent a state
legislature from classifying the different persons or subjects of tax-
ation and imposing different rates, prnvHfj^only thtit the tax levied
on each class is equal and uniform, as to that class.*^ Neither does
it require the same fules'TJT'methods to be applied in the assessment
and valuation of all different kinds of property, but different prin-
ciples may be adopted when founded on real and substantial differences
in the nature or character of the property ; •" and so it is permissible
to provide different methods for the collection of taxes or different
penalties for their non-payment ; •• provided, in all these cases, that
neither the law itself nor its administration shall result in arbitrary
Ugbbanks r. Armstrong, 208 XT. S. 481, 28 Snp. Ct 372, 52 Lw Bd. 582. Bee
**CoMiitutional Law,'* Dec, Dig. (Key No,) | 250; Cent. Dig. \% lit, 71S.
•« St. Louis, I. M. ft Su R. Co. y. Dayls (O. G.) 132 Fed. 629; W. O. Pea-
cock ft Co. ▼. Pratt, 121 Fed. 772, 58 C. C. A. 48; Michigan Railroad Tax
Oases id C.) 138 Fed. 223 (affirmed Michigan C. R. Go. v. Powers, 201 U. S.
245, 26 Sup. Ct. 459, 50 L. Ed. 744) ; Chicago Union Traction Go. v. State
Board of EqaallEation (C. C.) 112 Fed. 607; Georgia R, ft Banking Co. v.
Wright, 124 Ga. 596, 63 S. B. 251; Holt T. City ConncU of Somerville, 127
Mass. 408; People v. Ronner, 110 App. DIt. 816, 97 N. Y. Snpp. 550; State ▼.
Wheeler, 141 N. C. 773, 53 a B. 358, 5 I/. R. A. (N. S.) 1139, 115 Am. St. Rep.
700 ; State r. McCrUlis, 28 R. I. 165, 66 AU. 301, 9 L. R. A. (N. S.) 635 ; State
▼. Gfllvrrton, H. ft S. A. R. Co., 100 Tex. 153, 97 S. W. 71. A tax on transfers
of corporate stock cannot be said to deny the equal protection of the laws
because it does not tax the transfer of other kinds of property. People r.
Reardon, 184 N. Y. 431, 77 N. B. 970, 8 L. R. A. (N. S.) 314, 112 Am. St. Rep.
62a See ^'Constitutional Law," Dec. Dig. (Key No.) I 229; Cent. Dig. | 685;
••Taxation,'* Dec Dig. (Key No.) H 39-45; Cent. Dig. || eS-lOS.
•ft Kentucky Railroad Tax Cases, 115 U. S. 321. 6 Sup. Ct 57, 29 L. Bd. 414 ;
Charlotte, C. ft A. R. Co. y. Glbbes, 142 U. S. 3S6, 12 Sup. Gt 255, 35 L. Ed.
1061 ; Bell's Gap R. Go. v. Pennsylvania, 134 U. S. 232, 10 Sup. Ot 533, 33 L.
Ed. 892 ; Columbus Southern R. Co. v. Wright, 151 U. S. 470, 14 Sup. Ct. 396,
38 L. Ed. 238 ; Michigan Railroad Tax Cases (C. C) 138 Fed. 223 ; St Louis,
I. M. ft S. R, Go. T. Davis (G. C.) 132 Fed. 629. Bat see Railroad and Tele-
phone Gofl. y. Board of Equaliseers of Tennessee (G. C) 85 Fed. 302. See •'Con-
stitutional Law,'* Dec. Dig. (Key No.) f 229; Cent. Dig, \ 685; 'Taxation,'*
Dee. Dig. (Key No.) { 40; Cent. Dig. |§ 79, 80.
»« Western Union Tel. Co. v. Indiana, 165 U. S. 304, 17 Sup. Gt 845, 41 L.
Bd. 725. But see King v. HatHeld (C. C.) 130 Fed. 564. See "ConstUutional
Law,** Dec. Dig. (Key No.) § 229; Cent. Dig. I 685; "Taxation^" Deo. Dig.
(Key No.) S 40; Cent. Dig. (ft 84, 87.
554
CIVIL BIGHTS AMD THEIB PBOTBCTIOM.
(CklS
and oppressive discriminations.*^ The same principles apply to special
assessments levied to defray the cost of public improvements,** and
to laws taxing inheritances or the devolution of estates.** The latter
will not be held invalid, as in violation of this constitutional require-
ment, because they make a distinction between successions or devises
to lineal descendants and such as pass to collateral heirs or strangers
to the blood,* *• nor because the tax is graduated in proportion to tlie
amount of the inheritance,*** nor because estates below a certain value
are exempted from the operation of the law.***
Competency of JVitnesses.
It has been held that a state statute providing that no Indian, Mon-
golian, or Chinese shall be permitted to give evidence in the courts
of the state in favor of or against a white man is not in violation of
the federal constitution, even since* the thirteenth and fourteenth
amendments. To declare who shall be competent to testify in the
state courts was always considered, prior to those amendments, a sub-
ject within the legitimate sphere of the state legislatures, and the re-
strictions which they impose upon the states relate to substantial per-
f
•T Raymond ▼. Ghlckgo Union Traction Ck)., 207 U. S. 20, 28 Sup. Ot 7, 52 Lw
Ed. 78; Nashville, C. & St. L. Ry. Co. v. Taylor (a C.) 86 Fed. 168. See **Coip-
atitutional Law,** Dec, Dig. {Key No,) | 229; Cent, Dig, | 685; "rcMrafion," Dec,
Dig, (Key No,) S 40; Cent. Dig, iS 68-lOS,
»« Cleveland, C, 0. ft St Tj. R. Co. v. Porter. 210 U. S. 177, 28 Sup. Ct. 647,
52 L. Ed. 1012 ; Lombard v. VTeet Chicago Park, 181 U. S. 33, 21 Sup. Ct 507,
45 L. Ed. 731 ; Ross v. Kendall, 183 Mo. 338, 81 S. W. 1107 ; Corrlgan v. Kan-
sas City, 211 Mo. 608, 111 S. W. 115 ; In re Water Front In City of New York,
190 N. T. 350, 83 N. E. 299, 16 L. R. A. (N. S.) 335. See ^Constitutional Law**
Dec. Dig, {Key No,) { 23S; Cent. Dig, § 689; ^'Municipal Corporations,** Dec
Dig, {Key No.) S 407; Cent. Dig, | 104^
»» Blackstone v. Miller, 188 U. S. 189, 23 Sup. Ct 277, 47 L. Ed. 439; Orr
T. Gllman, 183 U. S. 278, 22 Sup. Ct 213, 46 L. Ed. 196 ; Humphreys v. State,
70 Ohio St 67, 70 N. E. 957, 65 L. R. A. 776, 101 Am. St Rep. 888. See *'Con^
stitutional Law,** Dec, Dig, {Key No.) | 229,
loocampbeU v. California, 200 U. S. 87, 26 Sup. Ct 182, 50 L. Ed. 382;
Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 18 Sup. Ct 594, 42 L.
Ed. 1037 ; Billings v. Illinois, 188 U. S. 97, 23 Sup. Ct 272, 47 L. Ed. 400. See
Constitutional Loac,** Dec, Dig. {Key No.) i 229.
101 Nunnemacher v. State, 129 Wis. 190, 108 N. W. 627, 9 L. R, A. (N. S.)
121. See '^Constitutional Law,** Dec. Dig, {Key No.) § 229.
los Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 18 Sup. Ct 594, 42
L. Ed. 1037. But see Black v. State, 113 Wis. 205, 89 N. W. 522, 90 Am. St
Rep. 853. See ^'Constitutional Law,** Deo. Dig. {Key No.) { 229.
§ 209) EQUAL PROTECTION OF THE LAW. 655
sonal rights of liberty and property, and do not extend to mere rules
of evidence.***
/
Right to Labor.
But a state statute providing that no corporation organized under ^^f^/^
its laws shall directly or indirectly, in any capacity, employ any Chinese ^^
or Mongolian laborer, is unconstitutional. For the right to labor is ^^''
clearly included within the scope of those rights which the amend- ^-^*'-*'
ment is designed to secure,*** ^
Discriminations against Colored Citizens,
It is to be carefully borne in mind that it is not identity of rights
and privileges which this amendment guaranties, Eut .eguaTity. Hence,
for example, while it would not be competent for the legislature of
a state, in establishing and prescribing regulations for the public
schools, to exclude negro children from the benefit of the public school
system on account of their color only,*** yet the state may establish
separate public schools for colored children, and require them to at-
tend those schools or none, provided the accommodations, advantages,
and opportunities, and the relative appropriation of the public funds
for their support, are in all respects equal to those provided for white
children.***
/■
lot People y. Brady, 40 Cal. 108, 6 Am. Rep. 604 And see LI Slug v. Unit- /
ed States, ISO U. S. 486, 21 Sup. Ct. 449, 45 L. Ed. 634. See **CoMtUutional
Law;* Dec. Dig. (Key No.) § 222; Cent. Dig. | 720.
104 In re Parrott, 6 Sawy. 349, 1 Fed. 481. See "Oonstitutional Law/" Deo. '-^
Dig. {Key No.) § 238; Vent. Dig. S 689.
105 Davenport v. Cloverport (D. C.) 72 Fed. 689. See ^^Constitutional Law,'*
Dec. Dig. (Key No.) I 220; Cent. Dig. S 72S.
io« Claybrook ▼. City of Owensboro (D. C.) 16 Fed. 297; McMUlan v. S'*hool
Committee of Dlst No. 4, 107 N. C. 609, 12 S. B. 830, 10 L. R. A. 823 ; Knox
y. Board of Education, 45 Kan. 152, 25 Pac. 616, 11 It. R. A. 830; Dallas y.
Fosdlck, 40 How. Prac. (N. Y.) 249 ; State v. Gray, 93 Ind. 303 ; Maddox y.
Neal, 45 Ark. 121, 55 Am. Rep. 540; Lehew y. Brummell, 103 Ma 546, 15 S.
W. 765, 11 L. R. A. 828, 23 Am. St. Rep. 895 ; Chrlgman y. City of Brookhaven,
70 Miss. 477, 12 South. 458 ; Cummlng y. County Board of Education, 175 U.
S. 528» 20 Sup. Ct 197, 44 L. Ed. 262 ; State y. Maryland Institute for the
Promotion of Mechanic Arts, 87 Md. 643, 41 Atl. 126 ; Cory v. Carter, 48 Ind.
327, 17 Am. Rep. 738 ; Resmolds r. Board of Education of City of Topeka, 66
Kan. 672, 72 Pac. 274 ; Berea College y. Commonwealth, 123 Ky. 209, 94 S. W.
623, 29 Ky. Law Rep. 284, 124 Am. St. Rep. 344 ; Lowery y. Board of Graded
School Trustees In Town of Kernersyllle, 140 N., C 33, 52 S. B. 267 ; Martin
y. Board of Education, 42 W. Va. 514, 26 S. E. 34k See ^'Conetitutional Laio/'
Dec. Dig. {Key No.) § 220; Cent. Dig. f 72S.
556 CIVIL RIGHTS AND THBIB PROTECTION. (Ch. 18
Any state statute which denies to colored citizens the right or priv-
ilege of participating in the administration of the laws by serving on
grand or petit juries, because of their race or color, is a discrimination
against them which is forbidden by the fourteenth amendment.^*^
And it is equally a violation of the constitution where a discrimina-
tion of this kind is brought about, not by the law itself, but by the act
of the officers charged with the duty of selecting, summoning, and
impaneling juries, when they purposely exclude negroes from jury
service, who would be available and competent for that purpose,^**
or by the rulings of the courts.*®* But a mixed jury in any particular
case is not essential to the equal protection of the laws. It is a right
to which any colored man is entitled that, in the selection of jurors to
pass upon his life, liberty, or property, there shall be no exclusion of
his race and no discrimination against them because of their color.
But that is a different thing from a right to have a jury composed in
part of colored men.***
It is lawful for a railroad company, or other common carrier, to
provide separate carriages or other separate accommodations for dif-
ferent classes of patrons, where the distinction is founded on some
reasonable ground and there is no invidious discrimination against
any, and there are equally desirable accommodations for all who pay
at the same rate. Thus a distinction may be made, in railroad cars
107 Strander v. West Virginia, 100 U. S. 303, 26 T*. Ed. 664; Ex parte Vir-
ginia, 100 U. S. 839, 25 L. Ed. 676 ; Williams v. Mississippi, 170 U. S. 213, 18
Sup. Ct. 583, 42 L. Ed. 1012 ; Miller v. Commonwealth, 127 Ky. 387, 105 S. W.
899, 32 Ky. Law Rep. 249. Set *VonsUtutional Law," Dec Dig. {Key No.)
i 221; Cent. Dig. | 72i.
io« Carter v. Texas, 177 U. S. 442, 20 Sup. Ct. 687, 44 K EJd. 839; Martin
V. Texas, 200 U. S. 316, 26 Sup. Ct. 338, 60 L. Ed. 497 ; Tarrance v. State, 43
Fla. 446, 30 South. 685 (affirmed Tarrance r. Florida, 188 U. S. 519, 23 Sup.
Ct 402, 47 L. Ed. 572) ; Montgomery y. State, 65 Fla. 97, 45 South. 879 ; Far-
row y. State, 91 Miss. 509, 45 South. 619 ; Smith y. State, 42 Tex. Or. R. 220,
58 S. W. 97. See **Con8titutional Law," Deo. Dig. (Kty No.) | 221; Cent, Dig.
§72-*.
io» Rogers y. Alabama, 192 U. S. 226, 24 Sup. Ct 257, 48 L. Ed. 417. Bee
*'Con8titutional Law," Dec. Dig. (Key No,) 8 221; Cent. Dig. | 72-i.
110 Virginia y. Rives, 100 U. S. 313, 25 L. Ed. 667; Neal y. Delaware, 103
U. S. 370, 26 Ia Ed. 567 ; Eastllng y. State, 69 Ark. 189, 62 S. W. 584 ; Mont-
gomery y. State, 55 Fla. 97, 46 South. 879 ; State y. Brownfleld, 60 S. O. 509,
39 S. E. 2 ; BuUock y. State, 65 N. J. Law, 557, 47 Atl. 62, 86 Am. St Rep.
(5G8 ; Fugett y. State, 45 Tex. Cr. R. 313, 77 S. W. 461. See **Con9titutional
Law," Dec Dig. (Key No.) I 221; Cent. Dig. i{ 724.
§ 209) EQUAL PROTECTION OF THE LAW. 657
and waiting rooms, between men and women or between negroes and
white people.***
A statute declaring the intermarriage of a negro and a White person
illegal, or a nullity, or a felony, is not inconsistent with, or repugnant
to, the provisions of the fourteenth amendment. Such a law cannot
be said to deny to any person the equal protection of the laws.*** And
the same is true of an act providing a greater punishment for adultery
between a white person and a negro than for adultery between those
of the same race. This is not a discrimination against any particular
race, but simply provides a penalty for an offense which could only
exist when the parties were of different races.***
Foreign Corporations.
This provision does not prohibit a state from imposing an annual
license tax, or other conditions, upon the admission of foreign cor-
porations to do business within its limits. The reason is that the
"person" to whom the equal protection of the laws is guarantied must
be "within the jurisdiction" of the state. A corporation is a person
and may fulfill this requisite. But a foreign corporation, seeking to
do business within the state, is not "within the jurisdiction" until it has
complied with the conditions imposed by the state as a pre-requisite
to the right of such corporations to enter its field. Until this is done,
therefore, the corporation cannot claim the benefit of the equal pro-
tection of the state's laws.*** But a foreign corporation once lawfully
i
tri Piesgy ▼. Ferguson, 168 U. S. 587, 16 Sup. Ct 1188, 41 L. Ed. 256 ; Houck *.
▼. Southern Pac. R. CJo. (C. C.) 38 Fed. 226 ; The Sue- (D. C.) 22 Fed. 843 ; {
Logwood V. Memphis ft C. R. Co. (C. C.) 23 Fed. 818 ; Murphy v. Western & ■
A. R. R. (C. C.) 23 Fed. 637; Chicago A N. W. Ry. Co. v. Williams, 55 111. 185.
8 Am. Rep. 641 ; Brltton t. Atlantic ft C. A. L. Ry. Co., 88 N. C. 536, 43 Am.
Rep. 749; Patterson ▼. Taylor, 51 Fla. 275, 40 South. 493; Ohio Valley Ry.'s
Receiver r. Lander, 104 Ky. 431, 47 S. W. 344, 20 Ky. Law Rep. 913 ; Chesa-
peake ft O. Ry. Co. V. Commonwealth, 21 Ky. I^aw Rep. 228, 51 S. W. 160;
Morrison r. State, 116 Tenn. 534, 95 S. W. 494. But see State v. Patterson,
50 Fla. 127, 89 South. 398. Bee ^^Constitutional Lawr Deo. Dig. (Key No.) S
218; Cent. Dig. % 115.
lis State y. Bell, 7 Baxt. (Tenn.) 9, 32 Am. Rep. 549; Francois ▼. State, 9
Tex. App. 144 ; Dodson v. State, 61 Ark. 57, 31 S. W. 977 ; State v. Hairston,
63 N. C. 461. See ^'Constitutional Lav>r Dec Dig. {Key No.) U 206, 215;
Cent. Dig. §i 645, 716,
ii« Pace V. Alabama, 106 U. S. 583, 1 Sup. Ct 637, 27 L. M. 207. See **Con^
stitutional Law,** Dec. Dig. (Key No.) | 22S; Cent, Dig. | 722.
114 Pembina Consol. Silver Mln. ft Mill. Co. v. Pennsylvania, 125 IT. S. 181,
8 Sup. Ct 737, 31 L. Ed. 650 ; Fire Ass'n of Philadelphia v. New York, 119 U.
558 CIVIL RIGHTS AND THEIR PROTECTION. (Ch. 18
Within the state cannot be subjected to unreasonable discriminations.
Hence a statute which provides for the forfeiture of a foreign cor-
poration's right to do business in the state, or for a cancellation of its
license, if it shall bring a suit in a federal court, or remove to such
court a suit brought against it, denies it the equal protection of the
laws and is invalid.***
RIGHT TO CHOOSE OCCUPATION.
210. The risht of every ataa to el&oose his own ooonpatlon, profoMion,
or entployntent, though not eaepressly guarantied by the eonsti*
tntions, ia Inolnded in the richt to liberty and the porsnit of
happiness.
211. But, for the welfare of seeiety, the eondnot of certain hinds of
business, or the qnalifioations of those who shall be allowed to
pursue thent, ntay be regulated by the state in the ezereise of
the police power.
212. In ntany of the states, the constitutions forbid the erant of nto«
nopolies or exclusiTc priTileees.
"Among these inalienable rights, as proclaimed in that great docu-
ment [the Declaration of Independence], is the right of men to pur-
sue their happiness, by which is meant the right to pursue any law-
ful business or vocation in any manner not inconsistent with the equal
rights of others, which may increase their prosperity or develop their
faculties, so as to give them their highest enjoyment. The common
business and callings of life, the ordinary trades and pursuits, which
are innocuous in th'emselves, and have been followed in all commu-
nities from time immemorial, must therefore be free in this country to
all alike upon the same conditions. The right to pursue them, without
let or hindrance, except that which is applied to all persons of the
same age, sex, and condition, is a distinguishing privilege of citizens
S. 110, 7 Sup. Ct. 108, 30 L. Ed. 342; Norfolk & W. R. Co. v. Pennsylvania,
136 U. S, 114, 10 Sup. Ct. 958, 34 L. Ed. 394 ; Blake v. McClung, 172 U. S. 239,
19 Sup. Ct. 165, 43 L. Ed, 432; Merchants' Nat Bank of Lafayette, Ind., v.
Ford, 124 Ky. 403, 90 S. W. 260, 30 Ky. Law Rep. 558 ; Attorney General v. A.
Booth & Co., 143 Mich. 89, 106 N. W. 868 ; Boeder v. Robertson, 202 Mo. 522,
100 S. W. 1080. See '^Constitutional Law;* Dec, Dig. (Key No.) §{ 206, 210,
230; Cent. Dig. §§ 627, 680, 687.
11 B Chicago, R, I. & P. R. Co. v. Swanger (O. C.) 157 Fed. 783; Seaboard
Air Line R. Co. v. Railroad Commission of Alabama (C. C.) 155 Fed. 792.
See 'Vonstitutional Law;* Dec. Dig. {Key No.) {{ 210, 230; Cent. Dig. §{ 680,
687.
§§ 210-212) BIQHT TO CHOOSE OCCUPATIOy. 569
'I
of the United States, and an essential element of that freedom which - jl
they claim as their birthright." **• To secure this right, it is neces-
sary that there should be no distinction or discrimination, in the laws
of the state, as to the persons who may pursue given callings, except
such as may be founded on and justified by the power of police. The
rights of all citizens in this matter are equal. No discrimination, for
instance, could lawfully be made between citizens founded solely on
race or color. But the state, as above remarked, may limit the right
of employment so far as may be necessary in the exercise of the police
power. This principle has been fully explained in the chapter specially
devoted to that power of the government, and the reader is referred
thereto for more specific details.
A part of the right to choose one's occupation is the right to be
free from unlawful interference or control in the conduct of it. But
here, as before, we find the state invested with a certain regulative
power which is to be exercised for the benefit of the whole community.
This also has been explained in the chapter just referred to. More-
over, in respect to some few occupations, either immemorial custom or
the necessities of society have given to the state the right to regulate
them in respect to other matters than the right to engage in them and
the fixing of charges. This is true, for example, of common carriers
and of innkeepers.**^
116 Butchers' Union Slaughterhouse ft L. S. L. Co. t. Crescent City Idye
Stock rending & S. H. Co., Ill U. S. 746, 4 Siup. Ct 652, 28 L. Ed. 585, opin-
ion of Field. J. And see Leep r. St Louis, I. M. & S. Ry. Co., 58 Ark. 407, 25
S. W. 75, 23 L. R. A. 264. 41 Am. St. Rep. 109 ; Landberg v. aty of Chicago,
237 111. 112, 86 N. E. 638. 21 L. R. A. (N. S.) 830, 127 Am. St Rep. 319; People
V. Steele, 231 111. 340. 83 N. E. 236, 14 L. R. A. (N. S.) 361, 121 Am. St. Rep.
321 ; City of New Orleans v. Murat, 119 La. 1093, 44 South. 898 ; Brennan
▼. United Hatters of North America, Local No. 17, 73 N. J. Law, 729. 65 Atl.
165, 9 L. R. A. (N. S.) 254. 118 Am. St Rep. 727 ; People t. Rosenberg, 59 Misc.
Rep. 3^2, 112 N. Y. Supp. 316; Wyeth ▼. Board of Health of City of Cam-
bridge, 200 ^f ass. 474, 86 N. B. 925, 128 Am. St Rep. 439. For the application
of these principles to corporations, particularly foreign corporations, see
Orient Ins. Co. v. Daggs, 172 U. S. 557, 19 Sup. Ot 281, 43 L. Ed. 552. See
"CoMtitutional Law," Dec. Dig. (Key No.) {( 87, 88, 128, 129; Cent. Dig. SS
m, 1^5, 169, S72, 410.
iiT Chicago, B. ft Q. R. Co. ▼. Iowa, 94 U. S. 155, 24 L. Bd. 94; Decuir y.
Benson, 27 La. Ann. 1 ; Schouler, Bailm. | 318; Hale, Bailm. ft Carr. 274-277.
See '^ComtitutUmal Law," Dec Dig. (Key 2fo.) U 129, 208; Cent. Dig. {i S84,
662.
/
>'
>'
/
360 dVIL BIOHT8 AND THBIB PKOTECTION. (CIl 18
Monopolies.
Although some of the British soyereigns claimed the right to grant
monopolies and special privileges, and derived a large part of their
revenue from the sale of such concessions, grossly infringing the lib-
f..^, I erties of the subject and demoralizing various branches of commerce
thereby, the courts always maintained that such grants were illegal
/ by the common law, and finally this branch of the royal prerogative
was very materially curtailed by an act of parliaments^* The grant of
exclusive privileges with respect to any business or occupation to one
man or set of men is necessarily in conflict with the constitutional right
of all others to choose their own pursuits, and is, in this cotmtry, very
generally prohibited. In a well-known case before the supreme court
of the United States, three of the .judges expressed the opinion that
a grant by a state legislature of a monopoly in any of the ordinary and
common trades or callings would be void under the federal constitu-
tion ; for it would violate the provisions of the fourteenth amendment
by abridging the privileges and immunities of citizens of the United
States, and depriving them of a portion of their liberty (the right to
pursue their happiness in the prosecution of a lawful calling) without
due process of law, and denying to them the equal protection of the
laws.*** But this has never been the opinion of a majority of the
lit "Dnring the reign of Elizabeth, It was the ik>11c7 of the crown to raise as
little revenue as possible by direct taxation, and as much as possible by the
sale of monopolies. In the forty-fourth year of her reign [1601] the burdens
borne by the nation through this method of Indirect taxation had become so
intolerable that they produced an outbreak in parliament.** McKeever v. U.
9., 14 Ct CI. 418. Thereupon the queen made some concessions and allayed
the popular complaints. But in the next year (1002) the Case of Monopolies
(Darcy v. Allein, 11 Coke, 84b) came up. In this case the plaintiff claimed
under letters patent from the crown granting to him the sole and exclusive
right to make, import, and sell playing cards for a period of twelve years. It
was unanimously resolved by the court that the said grant to the plaintiff of
the sole making of cards within the realm was utterly void, because it was a
monopoly and against the common law. And not long afterwards an act of
parliament (St. 21 Jac I., c 3, § 1) declared all monopolies to be contrary to
the laws of the realm, and to be utterly void and of no effect, saving patents
for inventions, and except as to patents concerning printing and the manu-
facture of saltpetre, gunpowder, cannon, and shot This statute. It will be ob-
served, in its main feature, was only declaratory of the common law. Bee
"Monopolie$;' Deo. Dig. {Key No.) |§ i, 2; Cent. Dig. K i, 2; 'Vonstitutional
Law,'* Dec. Dig. {Key No.) K 89, 205; Cent. Dig. §| SSISH.
11 • Butchers' Union Slaughterhouse & L. S. L. Co. v. Crescent City Live
Stock Landing ft S. H. €k>.. Ill U. S. 740, 703, 4 Sup. Ct 052, 28 L. Ed. 585.
§8 210-212) BIQHT TO OHOOSE OOCUPATION. 661
court.* •• However this may be, in most of the several states we find
restrictions upon the grant or creation of monopolies. In some, the
prohibition is leveled against ''monopolies and perpetuities" by name,
which are declared to be "odious" and forever forbidden. In some
the legislature is prohibited from granting to any citizen or class of
citizens any "special privileges or immunities which shall not, upon
the same terms, belong to all citizens." In others, the constitution con-
tains a declaration that "no man or set of men are entitled to exclusive
or separate public emoluments or privileges from the community but
in considleration of public services." *■*
But yet there are reasons of public policy which will justify the
grant of monopolies (unless specifically prohibited by the constitu-
tion) in many cases. Certain kinds of enterprise can be undertaken
only by those who are able to command large capital. Certain others
can be effectively managed only when the privileges are exclusive.
Others again are of little value to the originator unless he may possess
a monopoly. If in these cases the business is of such a nature that
the community has an interest in its existence, and if the interests of
the public can be best subserved by placing the business exclusively
in the hands of an individual or corporation, these considerations will
justify the closing of that business to all others.*** Thus, for instance,
*
And fle0 lilve Stock Dealers* ft Butchers* Ass'n ▼. Crescent City Live Stock
Landing & Slaughterhouse Co., 1 Abh. (U. S.) 388, Fed. Cas. No. 8,40a See
^'Constitutional Lawr Dec. Dig. (Key No.) H iW, 129, t05, 206, 240; Cent.
Dig. IS S72, 595, 625. 651, 688.
i>o See Slaughterhouse Cases, 16 Wall. SO, 21 Ia. Ed. 394. See **Constitu
tional Law,*' Dec. Dig. (Key No.) |§ 8S, 205, 207, 215, 240, 278; Cent. Dig. f^
151, 595, 625, 629, 697, 714, 802.
i>i See Stim. Am. St Law, §S 17, 404. Though the constitution prohibits
trusts and pools, the legislature may legalize combinations formed, not for
the purpose of creating a monopoly, but for obtaining fair and remunerative
prices for commodities. Owen County Burley Tobacco Soc. y. Brumback, 128
Ky. 137, 107 S. W. 710, 32 Ky. Law Rep. 9ia Bee ^'Constitutional Law,** Dec
Dig. (Key No.) H 205, 206, 240; Cent. Dig. |$ 591-^48, 688-^99.
122 See Gordon y. Winchester Building ft Accumulating Fund As8*n, 12
Bush (Ky.) 110, 23 Am. Rep. 713. And see East India Co. y. Sandys, 10 How.
St Tr. 871. In this case (called the "Great Case of Monopolies," and decided
in 1683) was sustained the validity of the royal grant to the East India Com*
pany of the sole privilege of trading to the East Indies. One of the judges
(Withins) said: '*A monopoly is no immoral act, but only against the politic
part of our law, which if it happen to be of advantage to the public, as this
trade is, then it ceases also to be against the prohibiting part of the law, and
so not within the law of monopolies." See, also, Dreyfus y. Boone (Ark.) 114
Bl.Con8T.L.(8d.Ed.) -8G
562 CIVIL BIGHTS AND TUEIB PBOTBCTION. (Ch. 18
a legislative grant of an exclusive right to supply electric light or
illuminating gas to a municipality, for lighting the streets and for the
use of the inhabitants in general, upon condition of the performance
of the service by the grantee, is not a monopoly of the sort against
which the constitutional prohibitions are directed.*** On the same
principle an exclusive privilege to a city to erect and maintain a sys-
tem of waterworks is not a monopoly; and granting the same exclu-
sive privilege for a term of years to a private corporation does not
make it one.*** Again, under proper legislative authority, a city may
grant to a street-railroad company the exclusive right to lay and oper-
ate its tracks in the streets of the city for a term of years.*** And
S. W. 718. A statute confining the business of baying and selling raUroad
tickets to the authorized agents of carriers, does not create an unlawful mo-
nopoly. People T. Warden of City Prison, 26 App. Div. 228, 60 N. Y. Supp. 56;
Jannln y. State, 42 Tex. Cr. R. 631, 51 S. W. 1126, 96 Am. St Rep. 821. Bee
^^Constitutional Law,*' Dec. Dig. {Key No.) | 205; Cent. Dig. If 591-624-
i>* New Orleans Gaslight Co. y. Louisiana Light & Heat Producing ft Mfg.
Co., 115 U. S. 650, 6 Sup. Ot 252, 29 L. Ed. 516. And see, also. State y. MU-
waukee Gaslight Co., 29 Wis. 460, 9 Am. Rep. 596 ; Crescent City Gaslight Co.
y. New Orleans Gaslight Co., 27 La. Ann. 138 ; LouisylUe Gas Co. y. Citizens'
Gaslight Co., 115 U. S. 683, 6 Sup. Ct. 265, 29 L. Ed. 510; Saginaw Gaslight
Co. y. City of Saginaw (C. C.) 28 Fed. 529 ; Joplin y. Southwest Missouri Light
Co., 191 U. S. 150, 24 Sup. Ot 43, 48 L. Ed. 127 ; Dayenport Gas ft Electric Co.
y. Dayenport, 124 Iowa, 22, 98 N. W. 892; BaUy y. City of Philadelphia, 184
Pa. 594, 39 Atl. 494, 39 L. R. A. 837, 63 Am. St Rep. 812 ; Reid y. Trowbridge,
78 Miss. 542, 29 South. 167; Denyer y. Hubbard, 17 Colo. App. 346, 68 Pac.
993. Compare State y. Portland Natural Gas Co., 153 Ind. 483, 53 N. E. 1089,
53 L. R. A. 413, 74 Am. St Rep. 314. See ^^Constitutional Law,'* Dec. Dig.
(Key yo.) I 205; Cent. Dig. | 601; ''Monopolies,^* Dec. Dig. (Key Ifo.) | 6;
Cent. Dig. 8 5.
124 Blenyllle Water Supply Co. y. MobUe, 186 U. S. 212, 22 Sup. Ot 820,
46 Lu Ed. 1132 ; New Orleans Waterworks Ca y. Rlyers, 115 U. S. 674, 6 Sup.
Ct. 273, 29 L. Ed. 525 ; Bartholomew y. City of Austin, Tex., 85 Fed. 359, 29
C C. A. 568 ; City of Memphis y. Memphis Water Co., 5 Heisk. (Tenn.) 495 ;
Atlantic City Waterworks Co. y. Atlantic City, 39 N. J. Eq. 367; Ludington
Water-Supply Co. y. City of Ludington, 119 Mich. 480, 78 N. W. 55a Compare
Thrift y. Town Com'rs of Town of Elizabeth City, 122 N. C. 31, 30 8. E. 349,
44 L. R. A. 427 ; Hartford Fire Ins. Co. y. Houston (Tex. Cly. App.) 110 S. W.
973. See ''Constitutional Law,** Dec. Dig. (Key No.) | 205; Cent. Dig. I 601;
"Monopolies,** Dec. Dig. (Key No.) | 6; Cent. Dig. { 5.
isB Des Moines St R. Co. y. Des Moines R. G. St Ry. Co., 73 Iowa, 518, 83
N. W. 610 ; IndianapoUs Cable St R. Co. y. CitlaEens* St R. Co., 127 Ind. 369,
24 N. E. 1054, 8 L. R. A. 539. But compare Jones y. Carter, 45 Tex. Cly. App.
450, 101 S. W. 514. See "Street RaUroads;* Deo. Dig. (Key No.) U 29, ZO;
Cent. Dig. H iQ, i7.
§§ 210-212) BIGHT TO CHOOSE OCCUPATION. 663
the grant of an exclusive right to build and maintain a toll bridge, or
a ferry, or a turnpike road is not one of the monopolies reprobated
and forbidden by the law.*** The same is also true of an act giving
to a butchering company the exclusive right for a term of years to
slaughter cattle for a populous city."^ And so, a law providing for
the granting of permits, to persons of good moral character, who
are citizens of the state or county, to sell intoxicating liquors, is not
in conflict with the constitutional provisions under consideration.***
And for somewhat similar reasons it is held that the act of municipal
authorities in granting to one person the exclusive right to collect
and dispose of garbage in the city, does not create an unlawful mo-
nopoly.*** It has always been considered, from the earliest times, that
the granting of patents for inventions and copyrights on books was
a case of a lawful and permissible monopoly; and the constitutional
provisions do not restrict the proper state or municipal authorities in
selecting the text books to be used in the public schools and awarding
to one person or corporation the exclusive privilege of supplying them
for a term of years.*** But in all cases it is to be observed that unless
i>« St Joseph Plank Road Co. v. Kline, 106 La. 826^ 30 South. 854; Charles
River Bridge y. Warren Bridge, 11 Pet. 420, 9 L. Ed. 773. See "^Constitutional
Law,** Dec. Dig. (Key No.) | 205; Cent, Dig. i§ 595, 606; **Ferrie9,** Dec. Dig.
{Key No.) | 16; Cent. Dig. |§ S8-40; **Tumpikes and Toll Boadt,** Dec. Dig.
(Key No.) ^9; Cent. Dig. <| 5, 12-18.
12T Butchers' Union Slaughterhouse ft L. S. K Co. v. Crescent City Live
Stock Landing & S. H. Co., Ill U. S. 746, 4 Sup. Ct. 652, 28 L. Ed. 585;
Slaughterhouse Cases, 16 Wall. 36, 21 L. Ed. 394. See **Constitutiondl Iraic,**
Dea Dig. (Key No.) H 205, 240; Cent. Dig. H 595, 697.
118 Plumb y. Christie, 103 6a. 686, 30 S. E. 750, 42 L. R. A. 181 ; In re Ruth,
82 Iowa, 250; Thomasson y. State, 15 Ind. 449; Guy ▼. Board of Corners of
Cumberland County, 122 N. C. 471, 29 S. E. 771 ; Gorrell t. Mayor, etc., of
Newport, 1 Tenn. Ch. App. 120. See "'Constitutional Law,** Dec Dig. {Key
No.) ( 205; Cent. Dig. § 617.
it» State y. Robb, 100 Me. 180, 60 Atl. 874 ; State y. Orr, 68 Conn. 101, 35
AU. 770, 34 L. R, A. 279 ; City of Grand Rapida y. De Vries, 123 Mich. 570, 82
N. W. 269. But giving to one individual the sole right to collect ashes and
other such harmless substances in a city is an Invasion of the personal rights
of the citizens, and in restraint of trade, and unnecessarily creates a monop-
oly. Her y. Ross, 64 Neb. 710, 90 N. W. 869, 57 L. R. A. 895, 97 Am. St Rep.
676. See ""Monopolies,** Dec. Dig. {Key No.) S| 4, 6; Cent. Dig. H ^f S.
iBoLeeper v. State, 106 Tenn. 500, 53 S. W. 962, 48 L. R. A. 167; Johnson
Pub. Co. y. Mills, 79 Miss. 543, 31 South. 101 ; Rand, McNaUy ft Co. v. Har-
tranft, 29 Wash. 591, 70 Pac 77. See ""Constitutional Law,** Dec. Dig. {Key
No.) H Its. 205; Cent. Dig. H S72-^9, 621; ""Monopolies.** Deo. Dig. {fey Nod
14.
664 CIVIL BIGHTS AND THfilB PROTECTION. (Cb. 18
a grant or contract is expressly made exclusive it will not be so con-
strued except by tmavoidable implication arising from tbe terms
used.***
The power to grant monopolies does not appertain to a municipal
corporation unless upon express grant "A municipal corporation
can grant, if at all, exclusive privileges for the protection of business
which, without prohibitory legislation, would be free to all men, only
under express legislative grant of power. Monopolies being preju-
dicial to the public welfare, the courts will not infer grants thereof,
refusing to presume the existence of legislative intention in conflict
with public policy." *•*
Special Privileges or Immunities.
In some states the constitutions declare that no men are entitled to
exclusive or separate emoluments or privileges but in consideration
of public services; *•• in others, that the legislature must not g^ant to
any citizen or class of citizens privileges or immunities which shall not
equally belong to all citizens on the same terms. This declaration ap-
plies only to such things as are of common right, and the requirement
of the constitution is satisfied where there is no manifest intent to
discriminate in favor of a particular class of citizens to the exclusion
iti Bnimmitt v. Ogden Waterworks Co., 33 Utah, 289, 93 Pac. 828; Capitol
City Light ft Fuel Co. v. City of Tallahassee, 42 Fla. 462, 28 South. 810;
Charles River Bridge v. Warren Bridge, 11 Pet 420, 9 L. Ed. 773. See **M0'
nopolies,** Deo. Dig. (Key Vo,) J i; Cent Dig. t 1; **Constitutional L€m,**
Dec. Dig. (Key No.) f 128; Cent. Dig. §| 37BS79.
iM Logan T. Pyne, 43 Iowa, 524, 22 Am. Rep. 261. And see Davenport v.
Kleinschmldt, 6 Mont. 502, 13 Pac 249; City of Hudson v. Thome, 7 Paige
(N. Y.) 261 ; State v. Cincinnati Gaslight & Coke Co., 18 Ohio St 262 ; Sagi-
naw Gaslight Co. V. City of Saginaw (C. C.) 28 Fed. 529; Mintum v. Larue,
23 How. 435, 16 L. Ed. 574 ; Citizens' Gas & Mining Co. v. Town of Elwood,
114 Ind. 332, 16 N. B. 624 ; Carroll v. Campbell, 108 Mo. 550, 17 S. W. 884 ;
City of Danville v. Noone, 103 111. App. 290; Territory v. De Wolfe, 13 Okl.
454, 74 Pac. 98. See **Municipal Corporations,** Dec. Dig. (Key No.) | 686;
Cent. Dig. §| H8S-U85; ** Monopolies;* Dec. Dig. (Key No.) |§ 1, 2; Cent. Dig.
S§ 1, 2.
Its For example Va. Bill of Rights 1869, art 1, | 6. This was intended to
guard against the evils endured under a government of hereditary magis-
trates and rulers, and has no reference to the private relations of the citizens,
or to the action of the legislature in passing laws regulating the domestic
policy and business affairs of the people. Smoot ▼. People's Perpetual Loan
ft Building Ass*n, 95 Va. 686, 29 S. E. 746, 41 L. R. A. 589. See **Con8tituti<m(a
Law;* Deo. Dig. (Key No.) Ii 20Jh^07; Cent. Dig. fi 591-^48.
8§ 210-212) BiaHT TO OHOOSB OCCUPATION. 665
of others similarly circumstanced.^'^ Corporations may be within
the benefit or the prohibition of such constitutional provisions, if ex-
pressly named, but not otherwise, and these declarations are not under-
stood as including municipalities.^'* The sale of intoxicating liquors
is not a privilege exercisable as of common right, and hence there is
no constitutional objection, on this ground, to restrictive licensing
laws.*'* Nor do these constitutional provisions forbid the enactment
of laws giving liens to mechanics and materialmen,*'^ or laws designat-
ing certain medical societies from whose members boards of medical
examiners are to be selected,*" or laws giving a preference, in re-
spect to public employment, to honorably discharged soldiers and
sailors.*" But on the other hand, the legislature cannot grant to any
person or class of persons an exclusive right of fishing in the public
waters of the state;**' or an exclusive right to collect waste paper
and other refuse from the streets of a city.*** And it is held that
i»* Indianapolis Cable St. R. Co. v. Citizens' St R. Co., 127 Ind. 369, 24 N.
B. 1054, 8 L. R. A. 539 ; State T. Rlchcreek, 167 Ind. 217, 77 N. B. 1085. 5 L.
R. A. (N. S.) 874, 119 Am. St Rep. 491. The legislature has no power to ex-
empt any particular jperson or corporation from the operation of the general
laws of the state, or to Impose special conditions or limitations on rights of
action against a particular person or corporation. Milton y. Bangor R. &
Blectrlc Co., 103 Me. 218, 68 Atl. 826, 15 L. R. A. (N. S.) 208, 125 Am. St Rep.
293. 8ce ^^Constitutional Law," Dec. Dig. (Key No.) S| 205-207; Cent. Dig.
if SBlSiS.
i«B Chicago, R. I. ft P. R. Co. y. State, 86 Ark. 412, 111 S. W. 466; State y.
Caffery, 49 La. Ann. 1152, 22 Sonth. 756; Anglo-Callfomlan Bank y. Field,
146 Cal. 644, 80 Pac. 1080. See ''Constitutional Law,*' Dec Dig. (Key Vo.) ||
205-207; Cent. Dig. §i 591-648.
!»• Hall y. Dunn (Or.) 97 Pac. 811. See ^^Constitutional Law,** Dec. Dig.
(Key Vo.) H 205-207; Cent. Dig. U 617, 691.
itT Smalley y. Gearing, 121 Mich. 190, 79 N. W. 1114. See ''Constitutional
Law,** Dec. Dig. (Key No,) |S 244, 900; Cent. Dig. U 710, 740.
i«t In re Campbell's Registration, 197 Pa. 581, 47 AXX. 860. Bee "Constitu-
tional Law** Dec. Dig. (Key No.) { 205.
i«» Shaw y. City CouncU of Marshalltown, 131 Iowa, 128, 104 N. W. 1121,'
10 L. R. A. (N. S.) 825 ; State y. Addison, 76 Kan. 699, 92 Pac. 581 ; Goodrich
y. Mitchell, 68 Kan. 765, 75 Pac. 1034, 64 L. R. A. 945, 104 Am. St Rep. 429.
But see State y. Garbroskl, 111 Iowa, 496, 82 N. W. 959, 56 L. R. A. 570, 82
Am. St Rep. 524. See "Constitutional Law,'* Dec. Dig. (Key No,) | 205.
i«o Slingerland y. International Contracting Co., 43 App. Dly. 215, 60 N. Y.
Supp. 12 ; Hnme y. Rogue Rlyer Packing Co., 51 Or. 237, 92 Pac. 1065. See
"Constitutional Law,** Dec. Dig. (Key No.) | 205.
i«i People y. aean St Co., 225 111. 470, 80 N. B. 298» 9 L. R. A. (N. S.) 465,
110 Am. St Rep. isa Bee "Constitutional Law,*' Deo. Dig. (Key No.) | 205.
666 CIVIL BIGHTS AMD THBIB PBOTECTION. (Ch. 18
these constitutional provisions are violated by a primary election law
which does not embrace all the political parties,^ ^* and by an act
creating a juvenile court which arbitrarily classifies all citizens into
those over and those under sixteen years of age.***
FBEEDOM OF CONTRACT.
SIS. Tke HsM of free eoatraet ia one of tke BAtwral li^ts of peraomml
liberty «ad ia alao a property riskt, «ad ia fmlly proteeted by
tke federal and state eoasttt«tleBe.i«4
u
/''' '' '.
This right, important and valuable as it is, is nevertheless restricted
by several constitutional provisions, as, for instance, that which gives
to congress control over foreign and interstate commerce, and under
which it may prohibit private contracts which operate in restraint of
such commerce.*** State legislatures have also the power to define
and establish the public policy of the state, and may forbid or denounce
contracts contrary thereto, as i^ seen in the case of laws prohibiting
stock gambling or dealing in options,*** in the usury laws,**^ and
those which forbid the loaning of money to pay another person's poll
tax to enable him to vote.*** Further, a very important limitation
i«t Britton y. Board of Election Gom'rs, 129 Cal. 337, 61 Pac. 1115, 51 U B.
A. 115. Bee ^'Constitutional Late,'* Dec Dig, (Key No.) | 205.
i4< Mansfield's Case, 22 Pa. Super. Ct 224. See '^Constitutional Law,*" Dec
Dig. (Key No.) < 205.
i«4 Charles J. Off ft Co. v. Morehead, 235 111. 40, 85 N. E. 264, 20 L. R. ▲.
(N. S.) 167, 126 Am. St Rep. 184 ; People v. Steele, 231 lU. 340, 83 N. E. 236,
14 L. R. A. (N. S.) 361, 121 Am. St. Rep. 321 ; State v. Associated Press, 159
Mo. 410, 60 S. W. 91, 51 L. R. A. 151. 81 Am. St Rep. 368 ; Potts v. Riddle
(Ga. App.) 63 S. E. 253 ; Stewart y. Gardner, 30 Ohio dr. Ct R. 218. See *Von^
stitutional Law,*' Dec. Dig. (Key No.) §| 87, 89, 296; Cent. Dig. S lot.
i«B Addyston Pipe ft Steel Co. y. United States, 175 U. S. 211, 20 Snp. Ct
96, 44 L. Ed. 136 ; United States y. Northern Secaritles Co. (a C.) 120 Fed.
721. See **Commerce," Dec Dig. {Key No.) { 9; Cent. Dig. | S.
i4« Booth y. Illinois, 184 U. S. 425, 22 Sup. Ct 425, 46 L. Ed. 623; Otis y.
Parker, 187 U. S. 606, 23 Sup. Ct. 168, 47 L. Ed. 323. See "Constitutional
Law,** Dec Dig. (Key No.) | 89; Cent. Dig. | 157.
14T People y. Ronner, 48 Misc. Rep. 436, 95 N. Y. Supp. 518; Id., 110 App.
Diy. 816. 97 N. Y. Supp. 550 ; Id., 185 N. Y. 285, 77 N. E. 1061 ; Adler ft Sons
Clothing Co. y. Corl, 155 Mo. 149, 55 S. W. 1017. See ^'Constitutional Law,**
Dec Dig. {Key No.) § 89; Cent. Dig. S 157.
i4t Solon y. State, 54 Tex. Cr. App. 261, 114 S. W. 349. Bee ''Constitutional
Law,** Dec Dig. {Key No.) U 81, 82, 89, 258.
§ 214) MARRIAGE AND DIVORCB. 567
upon the right of contract is found in the police power of the state,
under which laws may be enacted for the protection of the public
safety, health, and morals, r^;ardless of their effect on private con-
tracts.*** And although it is the duty of the courts, in recognition of
this right, to enforce private contracts as the parties have made them,
they have always refused (and particularly the courts of equity) to give
effect to unconscionable bargains.***
XARBIAGE AHD DIVORCE.
S14. The lisM to enter imto the velatioiL ef auurriase le a aatwal
rlcht. But im the intereete of eoeiety, it mmj be resitlated, aad
to a proper eztent limited, by law. For tbe same reaeoa, tbe
diseolatioiL of tbe aiarriace relation, darinc ike life of tbe par-
ties, oaa take plaoe oaly in aeeordaaee witb soaeral pablie
Marriage is not a mere contract, but it creates a status. It is for
the interest of the state that marriages should take place and be fruit-
ful, but not that they should be had between unfit persons or those who
would be likely to inflict upon the community a helpless, feeble, or
demoralized progeny. For this reason, it is competent for the state
to prohibit the intermarriage of persons standing in a near degree of
consanguinity, persons who have not attained a suflicient age, and
those who are mentally afilicted or diseased.**^ Moreover, while it
would probably not be competent for the state to require any particu*
lar religious form or ceremony to be observed in the formation of the
marriage relation, it is undoubtedly proper to establish such rules (as
to the obtaining of a license, the registration of marriages, and the
like,) as will tend to guard against improvidence in assuming the re-
sponsibilities of that estate, and against fraud, and also to secure pub-
licity, certainty, and official evidence. And since marriage is not a mere
civil contract, it follows that it cannot be dissolved at the will of the
!«• Craig 7. United States Health ft Accident Ins. Co., 80 S. G. 151, 61 S. B.
428, 18 L. IL A. (N. S.) 106, 128 Am. St Rep. 877. And see generally, «iipra,
chapter XIV, on the "Police Power." See **C(mstUuHofial Law,** Dec, Dig.
(Key No.) | 89.
i»o Bond T. Sandford, 134 Mo. App. 477, 114 S. W. 570. See **Con9Ututianal
Law,** Dec. Dig. (Key No.) f 89.
iBiAs to the validity of laws prohibiting the marriage of epileptics, see
Qoold T. Oonld, 78 Conn. 242, 61 Atl. 604, 2 L. B. A. (N. S.) 53L See "^Cor^
ititutional Law,** Dec Dig. (Key No.) ^ 86; Cent. Dig. | 156.
568 * CIVIL RIGHTS AND THBIR PROTBCTION. (Ch. 18
parties. The interest which the state has in this status, and in its pres-
ervation, gives it the right to prescribe general and uniform laws enu-
merating the causes for which divorces may be granted and regulating
the procedure thereon.
gUMPTUABT XJkWS.
215. Bmnptiiary laws, in seaeral, are not only utterly foreign to the
■Vivit of oar institatioBe, bat they are imeoaeietent with the
gaaranties of personal liberty and the right of property. Iiaars
partahing of the natare of samptnary laws, howoTor, niay be
passed in the lawf al ezereise of the poliee power of the state.
Sumptuary laws are laws made for the purpose of restraining luxury
or extravagance, particularly against inordinate expenditures in the
matter of apparel, food, furniture, etc. They are odious in character,
and contrary to the principle of liberty which assures to each the right
to so use and dispose of his own property as shall seem best to him,
provided he does not infringe upon the rights of others. Very few
instances of an attempt to make or enforce such laws are recorded in
our judicial annals. But the police power of the state authorizes it to
enact laws which shall restrain the citizen from making such use of
his property or his liberty as may be injurious to the public safety,
health, or morals. For instance, the restrictions upon the manufacture
and sale of intoxicants, if they are to be regarded as in any sense
sumptuary laws, are nevertheless valid as madle in the exercise of
this power.
EDUGATIOH.
216. In most of the American states, the right to aeqaire edneation is
reeogaised by the oonstitntions as a oiTil right, which it is the
dnty of the state to preserre and protect.
This recognition of the right of education is effected by provisions
in the constitutions declaring that, as the general diffusion of knowl-
edge and intelligence is essential to the preservation of the rights and
liberties of the people, it shall be the duty of the legislature to en-
courage the promotion of learning, or by similar provisions.*"* Al-
iBs But In New York it is said that the right to be educated in the common
schools is not a constitutional right, but one derived entirely from legislation,
and as such it is subject to such limitations as the legislature may from time
to time see fit to make. Dallas v. Fosdick, 40 How. Prac. (N. Y.) 218. Bee
§ 216) BDUOATION. 669
most without exception, the state constitutions require the legislature
to provide a system of free schools, and in many of the states a school
fund is provided by the constitution to be used for that purpose. In
eighteen of the states, the constitution provides for a state univer-
sity.^'* But, as a rule, these instruments also provide that no public
money shall ever be appropriated for the support of any sectarian or
denominational school. In some cases the constitution authorizes the
legislature to make laws for the comjtulsory attendance of children at
the public schools. But this would clearly be within the competence
of a state legislature, even without direct authorization, at least in so
far as to enforce attendance at such schools upon all children whose
education was not otherwise provided for.*'* Since the public schools
are established by the public and for the benefit of the public, the sys-
tem must be equal and impartial and provide the same accommodations
and opportunities for all who may be entitled to take the benefit of
them, without any distinction or discrimination, except such as may be
founded on age or degree of advancement.*'*
A part of the public school system, in this country, consists in the
division of the state into separate "school districts," which are in-
vested, to a considerable extent, with powers of local self-government,
and are regarded as quasi municipal corporations. Money for the
support of the schools is raised by general taxation in the several dis-
tricts, or throughout the state. To such taxation all property owners
are liable, whether or not they have children to be educated at the
public expense. The benefit of the public schools is for the state, and
not for the individual, and no one can say that he is not benefited
thereby, although one may be benefited more directly than another.
Sometimes also the state will lend its aid to educational institutions
which are not directly under its control, by exempting their property
from taxation. In view of the importance to the state of a general
••Constitutional Law;' Dec. Dig. (Key Vo.) | 220; Cent. Dig. | 129; "SchooU
and 8c7u>ol Districts;* Cent. Dig. f S22.
IBS Stim. Am. St Law, p. 11.
1B4 See State v. Jackson, 71 N. H. 552, 63 Atl. 1021, eo L. IL A. 739. See
••Constitutional Law;* Dec. Dig. (Key No.) f 8S.
16BA8 to the right to exclude from the public schools children who hare
not been vaccinated, tee Viemeister v. White, 179 K Y. 235, 72 N. E. 97, 70
L. R. A. 796, 103 Am. St Rep. 859. See •'Constitutional Late.*' Dec. Dig. {Key
2fo.) f 85; ••SchooU Ofui School DUtricts;* Dec. Dig. (Key No.) | 15S; Cent.
Dig. I SSt9.
570 dTIL RIGHTS AND THBIB PBOTBCTION. (Ch. 18
diffusion of education, it cannot be said that such exemptions from
taxation are an unlawful partiality shown to individuals.
DUE PBOGE88 OF UkW.
tl7. By thm vr^wimkomM of ikm federal oaBsatntioa, betk ike Uaited
States and tke eeTeral states are proUMted ftroat deprivlBS aay
person of bis life, Ubert]^ or property without due prooess of
Uw.
Constitutional Guaranties,
The forty-sixth article of Magna Charta declares that ''no freeman
shall be taken, or imprisoned, or disseised, or outlawed, or banished,
or anyways destroyed, nor will we [the king] pass upon him or com-
mit him to prison, unless by the legal judgment of his peers, or by the
law of the land/' This has always been regarded as one of the great
safeguards of liberty, and it has been incorporated, as a matter of
course, in every American constitution. The language of the clause,
as found in these instruments, is not always the same. It is more
usual to employ the phrase "due process of law" than that which
appears in Magna Charta. But it is well settled, by repeated deci-
sions of the courts, that the two terms, "due process of law" and "the
law of the land," are of exactly equivalent import.^^*
The provision in the fifth amendment to the federal constitution
does not apply to the several states or their legislatures, but is a re-
striction only on the power of congress, forbidding that body to en-
croach upon the liberty or property rights of individuals, save by due
process of law, in the exercise of any of its enumerated powers, as
for example the power to regulate interstate commerce.*'^ But the
IBS 2 Co. Inst 50; Millett v. People, 117 IlL 294, 7 N. E. 631, 57 Am. Rep.
869 ; Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616 ; Charles J. Off &
Co. T. Morehead, 235 111. 40, 85 N. E. 264, 20 L. R. A. (N. 8.) 167, 126 Am. St
Rep. 184 ; City of BellevUle v. St Cl&ir County Turnpike Co., 234 IlL 428, 84
N. E. 1049, 17 L. R. A. (N. S.) 1071 ; Cleveland, C, C & St L. R. Co. v. Backus,
133 Ind. 513, 33 N. E. 421, 18 L. R. A. 729. See '^Constitutional Law,'* Dec.
Dig. {Key No.) M 251-^20; Cent. Dig. H 726'-949.
liT Hunter v. City of Pittsburgh, 207 U. S. 161, 28 Sup. Ct 40, 52 L. Bd.
151; United States v. Delaware A H. Co., 164 Fed. 215; People v. Botkin,
9 Cal. App. 244, 98 Pac. 861 ; Barton v. Kimmerley, 165 Ind. 609, 76 N. E. 250,
112 Am. St Rep. 252; North Missouri R. Co. v. Maguire, 20 WalL 46, 22 L.
Ed. 287; City of St Louis v. Richeson, 76 Mo. 470; Pratt Institute v. New
York, 99 App. Div. 525, 91 N. Y. Supp. 136. See *'ConttUutional Law," Deo.
§ 217) DUE PROCESS OF LAW. 671
corresponding clause in the fourteenth amendment is specifically di-
rected to "'any state." Similar provisions are also found in many state
constitutions, but their effect is in no way different, the words "due
process of law" being held to mean exactly the same in whatever con-
stitution they may be found.^'* These guaranties are effective not
only as against legislative action on the part of a state, but also as
applied to the action of its courts, its municipalities, its public officers,
and even private persons when they assume to act under color or
sanction of a statute.^** But they impose no restraint on the exercise
of the police power of the state for the protection of the public safety,
health, and morals.*'*
Meaning of the Term; Method of Interpretation.
In view of the rule that words and phrases, used in constitutions,
which had acquired a settled meaning at common law, are to be un-
derstood in their ancient and fixed signification, it is important to in-
quire what was the meaning of the phrase "law of the land" in the
old English law. At the same time, while the historical interpretation
of these words is of value, it is not to be relied on exclusively. Re-
gard must be had to the principles of liberty which it was intended
to perpetuate. It is true, as stated in Murray's Lessee v. Hoboken
Land & Imp. Co.,*** that any process, not otherwise forbidden, must
be taken to be due process of law if it can show the sanction of settled
usage both in England and this country. But this does not mean that
Diff. (Key No,) }f 119, 251, 254, 297; Cent. Dig. || 288, 727; •^Commerce,'' Dec
Dig. (Key No.) ff 5, 58; Cent. Dig. ff 5, 5.
i»« In re Pox's Estate, 154 Mich. 5, 117 N. W. 558; McGarvey v. Swan, 17
Wyo. 120, 96 Pac. 697. See "OonetitutUmal Law,'* Dec. Dig. (Key No.) If 209,
251; Cent. Dig. U 678, 726.
iB« Owensboro Waterworks Co. t. Owensboro, 200 U. S. 38, 26 Sup. Ct. 249,
50 li. Ed. 361 ; Central of Georgia R. Co. v. Railroad Commission of Alabama
(G. C.) 161 Fed. 925; Meadows t. Golf, C. & 8. F. R. Co. (Tex. CIy. App.)
107 S. W. 83 ; Rlsley v. Utlca (C. C.) 168 Fed. 737. See "Constitutional Law,**
Dec. Dig. (Key No.) f| 52, 60, 209, 2^2, 251, 278, 298, 320; Cent. Dig. H 726,
727, 7S5.
i«o State 7. Schlenker, 112 Iowa, 642, 84 N. W. 698, 51 L. R. A. 347, 84 Am.
»t Rep. 360; Liohse Patent Door Co. t. Fuelle, 215 Mo. 421, 114 S. W. 997,
128 Amu St Rep. 492. See Moyer t. Peabody, 212 *U. S. 78^ 29 Sup. Ct 235,
53 Ij. EML 410, aa to military imprisonment by order of governor of state. See
^Vonetitutional Law,** Dec. Dig. (Key No.) If 83, 296.
^•1 18 How. 272, 15 L. Ed. 372. And see Anderson y. Messenger, 158 Fed.
200, 85 C. C. A. 468 ; United States t. Moore (C. C.) 129 Fed. 630. See *'Conr
stitutional Law,** Dec Dig. (Key No.) | 253; Cent. Dig. U 732, 733.
572 dVIL RIGHTS AND THflIB PROTECTION. (Ch. 18
everything known to the common law is due process of law. Neither
does it mean that nothing can be held to answer this description unless
it was a part of the common law or established by immemorial usage.
"To hold that such a characteristic is essential to due process of law
would be to deny every quality of the law but its age, and to render
it incapable of progress and improvement." The constitutional guar-
anty does not deprive the state of the power to devise new remedies
or processes, and to adapt them to the changing conditions of business
and society. That which the provision is intended to perpetuate is not
remedies or forms of procedure, but the established principles of pri-
vate right and distributive justice, the very substance of individual
rights to life, liberty, and property. "There is nothing in Magna
Charta, rightly construed as a broad charter of public right and law,
which ought to exclude the best ideas of all systems and of every age ;
and as it was the characteristic principle of the common law to draw
its inspiration from every fountain of justice, we are not to assume
that the sources of its supply have been exhausted. On the contrary,
we should expect that the new and varied experiences of our own situ-
ation and system will mould and shape it into new and not less use-
ful forms." "»
Definitions of Due Process of Law.
In the first place, it must be evident that "due process of law" means
something more than a statute. An act of the legislature may be
process of law, but it is not "due process" unless it conforms to the
requirements of the constitution and to the settled principles of right
and justice.^** The law of the land means the general law; a law
which hears before it condemns, which proceeds upon inquiry, and
renders judgment only after trial.*** "Due process of law requires
les Hurtado v. California, 110 U. 9. 616, 4 Sup. Ct 111, 292, 28 L. Ed. 232.
See Brown y. Board of Levee Ck>m'rs, 50 Miss. 468 ; People v. Board of Sup*r8
of Essex County, 70 N. Y. 228. See "Constitutional LaK?," Dec. Dig. {Key No.)
If 251-^20; Cent. Dig, H 726-949.
i«s City of Chicago y. Wells, 236 111. 129, 86 N. B. 197; Attorney General
V. Jochlm, 99 Mich. 358, 58 N. W. 611, 23 L. R. A. 699, 41 Am. St Rep. 606 ;
In re Zlebold (C. C.) 23 Fed. 792; Hoke t. Henderson, 15 N. C. 15, 26 Am.
Dec. 677; Norman t. Heist, 5 Watts & S. (Pa.) 171, 40 Am. Dec. 493. See
'^Constitutional Law,*' Deo. Dig. (Key No.) U 251-920; Cent. Dig. U 726-949.
i«« Barber Asphalt Pay. Co. y. Ridge, 169 Mo. 376» 68 S. W. 1043; Clark y.
Mitchell, 64 Mo. 564 ; Taylor t. Porter, 4 Hill (N. Y.) 140, 40 Am. Dec. 274.
See **Con8titutional Law,*' Dec Dig. (Key No.) |f 251-^20; Cent. Dig. If 726-
949.
§ 217) DUB PBOOB8S OF LAW. 673
an orderly proceeding, adapted to the nature of the case, in which the
citizen has an opportunity to be heard, and to defend, enforce, and
protect his rights. A hearing or an opportunity to be heard is abso-
lutely essential." *•• "As to the words from Magna Charta incorpo-
rated in the constitution, after volumes spoken and written with a
view to their exposition, the good sense of mankind has at length set-
tled down to this, that they were intended to secure the individual
from the arbitrary exercise of the powers of government, unrestrained
by the established principles of private rights and distributive jus-
tice." *•• The term "liberty," as used in this constitutional guaranty,
is not restricted to mere freedom from imprisonment, but embraces
religious, civil, political, and personal rights, including the right of
each citizen to purchase, hold, and sell property in the same manner
and to the same extent as every other citizen.**^
What Persons Protected.
Since the states are forbidden to deprive "any person" of his life,
liberty, or property without due process of law, the benefit of this
guaranty is not restricted to their own citizens, but extends equally to
residents of other states, and to aliens within their jurisdiction, and
even, it has been held, to an alien enemy.^** A private corporation
is also a person within the meaning of this clause; ^** but a municipal
!•• Stuart y. Palmer, 74 N. Y. 183, 90 Am. Rep. 289. See **Con8titutional
Law,*' Dec Dig. (Key No.) U 251-^20; Cent Dig, H 726-^49.
!•• Bank of Columbia v. Okely, 4 Wheat 235, 244, 4 Xx Ed. 658. And see
Leeper v. Texas, 139 U. S. 462, 11 9up. Ct 677, 35 L. Ed. 225; Holden v.
Hardy, 169 U. S. 366, 18 Sup. Gt. 383, 42 L. Ed. 780. See Garrin v. Daussman,
114 Ind. 429, 16 N. E. 826, 5 Am. St Rep. 637, stating that the courts have
uniformly refrained from attempting to give to the phrase "due process of
law," a precise or authoritative definition. Bee **Con8titutional LatOf** Dec,
Dig. (Key No.) H 251-920; Cent. Dig. H 726-949.
i«r Block T. Schwartz, 27 Utah, 387, 76 Pac. 22, 65 L. R. A. 308, 101 Am.
St Rep. 971; Henry t. Cherry, 30 R. I. 13, 73 Atl. 97. See ^Constitutional
Law;' Deo. Dig. (Key No,) t 25S; Cent. Dig. U 7Se-761.
!•• Buford y. Speed, 11 Bush (Ky.) 338. But see Ez parte Hamaguchi (G.
0.) 161 Fed. 185, holding that summary proceedings for the deportation of
aliens do not violate the requirement of due process. See ^^Constitutional
Law,** Deo. Dig. (Key No.) | 252; Cent. Dig. U 728-751.
!•• Smyth Y. Ames, 169 U. S. 466, 18 Supw Ct 4ia 42 L. Ed. 819; Chicago,
R. I. ft P. R. Co. 7. State, 86 Ark. 412, 111 S. W. 456; American De Forest
Wireless Tel. Co. t. Superior Court of City ft County of San Francisco, 153
CaL 588, 96 Pac^ 15, 17 L. R. ▲. (N. S.) 1117, 126 Am. St Rep. 126; Ward
Lumber Co. y. Henderson-White Mfg. Co., 107 Va. 626, 69 S. E. 476, 17 L. R.
A. (N. S.) 821 But compare Western Turf Ass'n t. Greenberg, 204 U. S. 359,
574 CIVIL RIGHTS AND THEIR PROTECTION. (Ch. 18
corporation^ existing only for public purposes, is not within the in-
tendment of the constitution, in such sense that the legislature may
not dispose of its revenues at discretion.^^®
What Property Protected.
Everything which the law recognizes as property is within the pro-
tection of the constitution.*'* Thus, the liberty of making contracts
is property or at least a property right,*'* and labor is property.*'* So
also is the right of a person to pursue his lawful business or calling.*'^
Thus, the right to practice medicine whether regarded as a property
right or a mere privilege, is a valuable right, which cannot be taken
away without due process of law.*'* But this does not apply to those
pursuits or forms of business which are not open to all as of common
right, but bear such a relation to the public welfare as to justify their
restriction to persons specially licensed for the purpose.*'* Hence a
license to sell intoxicating liquor is not property in the constitutional
27 Sop. Gt 884, 51 L. Ed. 620. See **Con8tUutional Law,*' Dec Dig, (Key No.)
I 252; Cent. Dig. t fSO.
170 City of Chicago v. Knobel, 232 111. 112, 83 N. B. 458. See **Conitituiional
Law," Dec. Dig. (Key A'o.) } 252; Cent. Dig. | 7W.
t^i State ▼. Derry, 171 Ind. 38, 85 N. E. 765. The right to the Influx of
light and air to one's property is a part of that -pTopertj, or an appurtenance
to It, of which he cannot be deprived arbitrarily. Bloom ▼. Kpch, 63 N. J.
Bq. 10, 60 Atl. 621. But the summary appropriation of a dog, for non-pay-
ment of a tax, without notice to the owner, is not a taking of property without
due process of law, as there is no property in dogs as against the police power
of the state. Fox y. Mohawk & H. R. Humane Soc., 165 N. Y. 517, 59 N. B.
353, 61 li. R. A. 681, 80 Am. St Rep. 767. No constitutional right is impaired
by a statutory provision that the legal title of a trustee in a deed of trust or
mortgage shall not descend to his heirs. Marshall v. Kraak, 23 App. D. C
129. See '*Con9titutional Law,** Dec. Dig. (Key No.) | 277; Cent. Dig. M 7tf£,
766, 949.
ITS Mathews v. People, 202 lU. 389, 67 N. B. 28, 63 L. R. A. 73, 95 Am. St
Rep. 241. See "Constitutional Law,*' Dec. Dig. (Key No.) f 276; Cent. Dig.
II 845, 846.
17 1 Mathews v. People, 202 111. 889, 67 N. B. 28, 63 L. R. A. 73, 95 Am. St
Rep. 241; Massie v. Cessna, 239 111. 852, 88 N. E. 152. See "Constitutional
Law," Dec. Dig. (Key No.) || 1^75, 276; Cent. Dig. || 84S-846.
174 Gray v. Building Trades ConncU, 91 Minn. 171, 97 N. W. 663, 63 L. R.
A. 753, 108 Am. St Rep. 477. Bee **Con8titutional Law," Deo. Dig. {Key No.)
I 275; Cent. Dig. || 84S-846.
ITS Smith T. State Board of Medical Examiners (Iowa) 117 N. W. 1116;
Mathews v. Hedlund, 82 Neb. 825, 119 N. W. 17. Bee '•Constitutional Law,"
Deo. Dig. (Key No.) | 275; Cent. Dig. || 848-^46.
iT« People 7, Sewer, Water ft Street Commission of Village of Saratoga
§ 217) DUE PROGB88 OF LAW. 675
scnsc,**^ nor a permit for the public sale of milk.*^* And there is no p
property or right of property in a public office such as to bring it
within the constitutional guaranty.^^*
Confiscation, Forfeiture, and Escheat.
From the foregoing principles it will be easily apparent that forfei-
tures of property to the state, or confiscations of property by the state,
are not conducted according to the requirement of "due process of
law/' unless the owner is afforded an opportunity to contest the charge
against him and to save his property by showing its nonliability.^*^
This question arose in regard to the validity of certain acts of congress
passed in 1861 and 1862, entitled acts "to suppress insurrection, to
punish treason and rebellion, and to seize and confiscate the property
of rebels."*** Forfeitures of property for violations of the United
States internal revenue laws, when judicially ascertained and declared,
are in conformity with the requirement of due process of law.***
While property may be forfeited to the state for default in the pay-
ment of taxes duly assessed upon it, yet it is not competent, by such a
Springs, 00 App. Div. 556, 86 N. Y. Supp. 445. See "Oonstitutional Law,*' Deo. .
Dig. (Key Vo.) ft 292; Cent. Dig. t 807.
177 Ex parte Young, 154 Cal. 817, 97 Pac. 822; Volght v. Board of Excise if
Corners of City of Newark, 59 N. J. Law, 358, S6 Ati. 686, 87 L. R. A. 292 ; '
Kmeger v. CoMlle, 49 Wash. 295, 95 Pac. 81. See "ConetUutional Law,** Deo.
Dig. {Key No.) t 277; Cent. Dig. S 762.
17 1 People T. Department of Health of City of New York, 189 N. Y. 187, 82
N. B. 187, 13 L. R. A. (N. 9.) 894. Bee ^^Constitutional Law,*' Deo. Dig. (Key
Vo.) I 296.
179 Taylor t. Beckham, 178 U. 8. 548, 20 Sup. Ct 890, 44 L. Ed. 1187; Haw-
kins T. Roberts, 122 Ala. 130, 27 Sooth. 827 ; Attorney General t. Jochim, 99
Mich. 358, 58 N. W. 611, 23 L. R. A. 699, 41 Am. St Rep. 606 ; People t.
Stnrges, 27 App. Div. 387, 60 N. Y. Supp. 5 ; Herring y. Pugh, 126 N. a 852,
36 S. E. 287 ; State Prison of North Carolina y. Day, 124 N. C. 362, 32 S. E.
748, 46 L. R. A. 295 ; Oriner t. Thomas, 101 Tex. 36, 104 8. W. 1058 ; State t.
Cmmbangh, 26 Tex. Civ. App. 521, 63 S. W. 925; Moore 7. StridLling, 46 W.
Va. 515, 33 S. B. 274, 50 L. R. A. 279. See ^^Constitutional Law,** Deo. Dig.
(Key No.) | 277; Cent. Dig. If 766, 949.
i«o Cigar Makers' International Union t. Goldberg, 72 N. J. Law, 214, 61
AU. 457, 70 L. R. A. 156, 111 Am. St Rep. 662. See 'Vonatitutiama Law,**
Dec Dig. (Key No.) U 276, SOS, S19; Cent. Dig. H 764, 77^ 86S-866.
1*1 See Chapman 7. Phcenix Nat Bank, 85 N. Y. 437; Norris 7. Doniphan,
4 Mete. (Ky.) 385 ; Miller 7. United States* 11 Wall. 268, 20 L. Ed. 135. See
**Conititutional Law,** Dec. Dig. (Key No.) | S19; Cent. Dig. ^ 764.
Its Henderson's Distilled SpiriU, 14 Wall. 44, 20 li. Ed. 815. See **Intenua
Revenue,** Dec Dig. (Key No.) U S9, 46; Cent. Dig. U 98, 99, 121.
,1
576 CITIL BIGHTS AND THBIE PBOTBCTION. (Ch. 18
proceeding, to vest in the state an absolute and indefeasible title, un-
less the owner shall first have been afforded an opportunity to appear
and be heard before some tribunal or board, empowered to grant re-
lief, and to make good any defenses which he may have against the
legality of the tax or the liability of his estate therefor.***
And the same general principles apply to the revocation or forfei-
ture of a grant from a municipal corporation; *"* to the revocation or
cancellation of the charter of a private corporation;*** and to the
vesting in the state of title to property claimed by escheat, which cannot
legally be accomplished without office found or some equivalent judi-
cial proceeding.***
Creation of Liens.
A statute giving a lien on buildings to contractors, mechanics, and
materialmen does not deprive the owner of his property without due
process of law, since he makes his contract with knowledge of the
obligations imposed by the statute and hence binds his property by his
voluntary act.**' So also with regard to a statute giving an innkeeper
a lien on the guest's baggage,*** and one creating a thresher's lien,***
and one giving to resident creditors a priority in the distribution of the
assets of an insolvent foreign corporation.*** But a law limiting mort-
is* Griffin V. Mixon, 38 Miss. 424; Kinney t. Beverley, 2 Hen. & M. (Ya.)
318. See *' Constitutional Law,** Dec. Dig. (Key No.) S 285; Cent. Dig. | 897.
!•* Central of Georgia R. Oo. v. Macon (C. C.) 110 Fed. 805. See "Cotwti-
tutional Law** Deo. Dig. {Key No.) | SOS.
i«» Cosmopolitan Club v. Virginia. 208 U. S. 378, 28 Sup. Ct. 394, 52 L. Ed.
536. And see Huber v. Martin, 127 Wis. 412, 105 N. W. 1031, 3 L. R. A. (N.
S.) 653, 115 Am. St. Rep. 1023. See "Constitutional Law,** Dec. Dig. (Key No.)
II 129, US, 210, 277, 278, SOS; Cent. Dig. §§ 296, SOI, S62-428, 762-^24, 86S-866.
i«« Louisville School Board v. King, 127 Ky. 824, 32 Ky. Law Rep. 687, 107
S. W. 247, 15 L. R. A. (N. S.) 379. See Douglas County v. Moores, 66 Neb. 284,
92 N. W. 199, as to disposition of unclaimed witness fees and costs. See **Conr
stitutional Law," Dec. Dig. (Key No.) § SOS.
18T Great Southern Fire Proof Hotel Oo. v. Jones, 193 U. S. 532, 24 Sup. Ct
576, 48 L. Ed. 778; Stimson Mill Co. v. Nolan, 5 Cal. App. 754. 91 Pac. 262;
Barrett v, Mllllkan, 156 Ind. 510, 60 N. B. 310, 83 Am. St. Rep. 220. See **Cor^
stitutional Law,** Dec. Dig. (Key No.) §§ 2U* SOO; Cent. Dig. || 710, 940.
188 Brown Shoe Co. v. Hunt, 103 Iowa, 586, 72 N. W. 765, 39 L. R. A. 291,
64 AuL St Rep. 198. See "Constitutional Late,** Dec. Dig. (Key No.) U 2U,
SOO; Cent. Dig. §| 710, 9i0.
i8»Phelan v. Terry, 101 Minn. 454, 112 N. W. 872. See "Constitutional
Law,** Deo. Dig. (Key No.) || 2U. SOO; Cent. Dig. §| 710, 9^0.
i»o Blake v. McClung, 172 U. S. 239, 19 Sup. Ct 165, 43 L. Ed. 432. Bee
"ConstUutional Law,** Dec Dig. (Key No.) ^ SOO; Cent. Dig. | $40.
§ 217) DUE PROGBSS OF LAW. 577
gage creditors, on foreclosure, to recourse against the particular prop-
erty covered by the mortgage, has been held void.***
Regulation of Use or Employment of Property.
A person is "deprived" of his property, not only when it is physi-
cally taken from him, but also when its value is destroyed or when its
capability for enjoyment or its adaptability to some particular use is
impaired; *•* and it is part of the right of property that the owner
should be permitted to arrange, divide, or improve it as he pleases
and put it to any lawful use; *** subject to the condition that he shall
not injure others or infringe upon their equal right to the enjoyment
of their own property; *•* and of course subject also to the power of
the state, in the exercise of the police power, to regulate the use of
property in the interests of the public safety, health, and morals, even
though the owner may be thereby deprived of a beneficial use of the
property to which he had previously devoted it,**^ or may be obliged
to incur expense unwillingly, as where railroad companies are re-
quired to fence their right of way.*** But there is a deprivation of
i»i Dennis t. Moses, 18 Wash. 587, 52 Pac. 833, 40 L. B. A. 802. See **Con^
stUutional Law,'' Dec. Dig. (Key No.) t 299.
i»t In re Jacobs, 98 N. Y. 08, 50 Am. Rep. 636. See ^'Contiitutional Law,"
Dee. Dig. {Key No.) H 70, 296; Cent. Dig. H 129, 826.
i»s Seaboard Air Line R. Go. v. Railroad Commission of Alabama (0. G.)
155 Fed. 792. The right of "property" in land includes the right of the owner
to subdivide it in snch a manner as he may see fit, or to leave it unsubdivided.
Gity of Chicago v. WeUs, 236 III. 129, 66 N. E. 197, 127 Am. St Rep. 282. He
cannot be deprived of the right to improve his property as he may please, by
the establishment of a building line by a city, except by due course of law
after having had an opportunity to be heard. Northrop v. Waterbury, 81
Conn. 805, 70 Atl. 1024. But a statute which forbids a riparian owner to di-
vert the waters of the stream out of the state and into another state, for use
therein, is not unconstitutional. Hudson County Water Co. v. McCarter, 209
U. 8. 849, 28 Sup. Ct 529, 52 L. Ed. 828. See "Constitutional Law,** Dec. Dig.
(Key No.) H 87, S77, 278; Cent. Dig. §t 156-171, 762-824.
^•4 See Karasek v. Peier, 22 Wash. 419, 61 Pac. 38, 50 L. R. A. 345, sustain-
ing the validity of a statute providing that an injunction may be granted to
restrain the malicious erection on land of any structure intended to spite or
annoy the adjoining proprietor. See ** Injunction,** Dec. Dig. (Key No.) t 2.
i»s Boston Beer Co. v. Massachusetts, 97 U. S. 25, 2i L. Ed. 989; Mugler
V. Kansas, 123 U. S. 623, 8 Sup. Ct 273, 81 L. Ed. 205 ; Munn v. People, 69 111.
80. And see Minneapolis & St L. R. Co. v. BedLwith. 129 U. S. 26, 9 Sup. Ct
207, 82 li. Ed. 585. See 'Constitutional Law," Dec. Dig. (Key No.) H 81, 278,
296; Cent. Dig. U U8, 762, 778, 825.
i»* People V. Illinois Cent R. Co., 235 111. 374, 85 N. E. 606, 18 Am. St Rep.
Bl.Oonst.L.(3d.Bd.)— 87
578 CIVIL RIGHTS AND THEIR PROTECTION. (Ch. 18
property without due process of law where the owner is constrained
to devote it, wholly or in part, to public use without compensation, as
where carriers are required to furnish free transportation of persons
or goods under certain circumstances,**^ or where the value of an ex-
clusive franchise (for example, that of a water company) is destroyed
by governmental or municipal competition.***
Abatement of Nuisances and Destruction of Dangerous or Contraband
Property,
A statute or ordinance authorizing or requiring the destruction
of private property, on the ground of its being a public nuisance,
without any investigation or hearing, is void.*** But a law giving
to the courts of equity power to proceed by injunction for the abate-
ment of a public nuisance, is not objectionable as depriving persons
of their property without due process of law.**^* And there can be no
right of property in things which are inherently evil because of their
pernicious effect, such as gambling devices, counterfeit money and
apparatus for making it, burglars' tools, obscene publications, and the
like, though they may have a commercial value, and such things may
be seized and destroyed without any violation of the constitutional
915; Beckstead v. Montana Union Ry. Co., 19 Mont 147, 47 Pac. 795. See
^'Constitutional Law;* Deo. Dig. {Key No,) (§ ISS, t97; Cent. Dig. f| 376, 852-
8S4.
i»T Chicago City Ry. Co. v. Cbioago (C. C) 142 Fed. 844 ; George t. Chicago,
R. I. & P. R. Co., 214 Mo. 551. 113 S. W. 1099, 127 Am. St. Rep. 690 ; State ▼.
Great Northern Ry. Co„ 43 Wash. 658, 86 Pac. 1056, 6 L. R. A. (N. S.) 906,
117 Am. St. Rep. 1084. But see Presby y. Klickitat County, 5 Wash. 829, 31
Pac. 876, holding that a law which compels an attorney to render services
gratuitously in defense of persons accused of crime, does not deprive him of
his property without due process of law. See **Constitutional Law,^* Dec Dig.
(Key No.) |§ W8, 278, 298; Cent. Dig. || 706, 772, 847.
198 Bennett Water Co. v. Boix^ugh of Mlllvale, 202 Pa. 616, 51 Atl. 1098;
Vlcksburg Waterworks Co. v. Vlcksburg, 185 U. S. 65, 22 Sup. Ct 585, 46 L.
Ed. 808; Columbia Ave. Savings Fund, Safe Deposit, Title ft Trust Co. v.
Dawson (C. C.) 130 Fed. 152 ; Atlantic City Waterworks Co. v. Atlantic City,
39 N. J. Bq. 367. See **Conatitwtional Late?," Dec. Dig. (Key No.) } 128; Cent
Dig. §§ 372-^79.
i»»Darst V. People, 51 111. 286, 2 Am. Rep. 301; MHler v. Burch, 32 Tex.
2206, 5 Am. Rep. 242. See ''Constitutional Law,'* Dec. Dig. (Key No.) | 278;
Cent. Dig. % 779.
*99 Carleton v. Rugg, 149 Mass. 550, 22 N. E. 55, 5 L. R. A. 193, 14 Am. St
Rep. 446. See ''ConstUutional Law;* Dec Dig. (Key No.) | 278; Cent. Dig.
§779,
§ 217) DUB PROCESS OF LAW. 579
provision under consideration.*'* But where property is of a nature
innocent in itself and susceptible of a beneficial use, as well as of
being devoted to an unlawful purpose, a statute subjecting it to sum-
mary confiscation or destruction as a penalty for its wrongful use,
without affording the owner notice and an opportunity to be heard,
is unconstitutional.*'* This applies to such property as intoxicating
liquors,*" guns and ammunition actually in use for hunting without
a license or permit,*'* and vessels, nets, and fishing tackle used for
unlawful fishing.*" On similar principles it is held that there is no
unconstitutional invasion of private property rights in laws author-
izing the destruction of food exposed for sale but unfit for human
consumption,*'* property infested with pests injurious to human or
plant life,*'^ and horses afflicted with the glanders.*'*
SOI state T. Derry, 171 Ind. 18, 85 N. B. 765; J. B. MuUen ft Co. t. Mosley,
18 Idaho. 457, 90 Pac. 086, 12 L. R. A. (N. S.) 394, 121 Am. St Rep. 277;
Garland Novelty Co. ▼. State, 71 Ark. 138, 71 S. W. 257 ; Woods v. Cottrell, 55
W. Va. 476, 47 S. E. 275, 65 L. R. A. 616, 104 Am. St. Rep. 1004 ; Frost v. Peo-
ple, 193 111. 635, 61 N. E. 1054, 86 Am. St. Rep. 352. See '^Constitutional Law**
Dec. Dig. (Key No.) §S 278, 320; Cent. Dig. §| 77i, 778.
*02 McConnell v. McKlllIp, 71 Neb. 712, 99 N, W. 505, 65 Ia R. A. 610, 115
Am. St. Rep. 614; State v. Derry, 171 Ind. 18, 85 N. E. 765; Berry v. De
Maris (N. J. Sup.) 70 Atl. 337. See '^Constitutional Later Dec. Dig. (Key :So.)
§f S19, S20; Cent. Dig. K 7^-*, 77i, 778.
tot Fisher t. McGirr, 1 Gray (Mass.) 1, 61 Am. Dec. 381 ; State v. Brennan's
Liquor, 25 Conn. 279 ; Gray v. Kimball, 42 Me. 299 ; State v. 0*Nein, 58 Vt.
140, 2 Atl. 586, 56 Am. Rep. 557 ; Clement v. Rabbach, 62 Misc. Rep. 27, 115 N.
Y. Supp. 162. See ''Constitutional Law,** Dec. Dig. (Key No.) § S20; Cent. Dig.
a 771, 778.
104 McConneU ▼. McKllllp, 71 Neb. 712, 99 N. W. 505, 65 L. R. A. 610, 115
Am. St Rep. 614. See "Constitutional Law,** Dec Dig. (Key No.) || S19, 320;
Cent. Dig. §} 764, 77i, 778.
soBEdson V. Crangle, 62 Ohio St 49, 56 N. E. &i7; Daniels v. Homer, 139
N. C. 219, 51 S. E. 992, 3 L. R, A. (N. S.) 997 ; Colon v. Lisk, 153 N. Y. 188,
47 N. B. 302, 60 Am. St. Rep. 609 ; Osborn v. Charlevoix Circuit Judge, 114
Mich. 655, 72 N. W. 982. See "Constitutional Law,*' Dec. Dig. (Key No.) ff
319, 320; Cent. Dig. (§ 7^-*, 77i, 778.
toe North American Cold Storage Co. t. Chicago, 211 U. S. 306, 29 Sup.
Ct 101, 68 L. Ed. 195; Blazier t. Miller, 10 Hun (N. Y.) 435. See "Constitu-
tional Law,** Dec: Dig. (Key yo.j t 320; Cent. Dig. §§ 77i, 778.
SOT Los Angeles County v. Spencer, 126 Cal. 670, 59 Pac. 202, 77 Am. St
Rep. 217. See "Constitutional Law,** Dec. Dig, (Key No.) | 320; Cent. Dig.
II 77i. 778.
>ot Chambers t. Gilbert, 17 Tex. CIt. App. 106, 42 S. W. 630. Bee "Consti-
tutional Law;* Dec Dig. (Key No.) | 320; Cent. Dig. || 77i» 778.
580 cnriL rights and their protection. (Ch. 18
DUB PBOCE88 OF Z.AW IH BEVEHITB AHD TAX PRO-
OEEDIIfGB.
SI 8. Froeeedlass for the ooUectiom •£ the pttblio reToaue do act al-
ways raqvlra tlio imtarreBtioiL of a court or a Jury, provided
ikm property owmer is afforded an adeqvate opportunity to eon-
test the legality of Ohm demand nuide npon his estate.
219* Bnt the enforced payment of taxes illesally levied is a depriTa-
tion of property without dne process of Inur.
220. Even in the case of a valid tax, it is necessary that the tax payer,
at some stace of the proeeedincs, should he accorded dne and
snflLcicnt notice of the liability soncht to he imposed npon him
id a fair and snAeient opportunity to eontest the. validity,
kte, manner, or amount of the assessment on his property he-
fore a eourt, oflccr, or hoard having authority to give hiuL re-
lief.
281. These principles apply in the case of special assessments for the
cost of local improvements levied on the property benellted*
Summary Proceedings in Tax Cases.
Summary processes, it should be observed, are not necessarily unjust
or unconstitutional, or open to the objection that they deprive per-
sons of their property witliout due process of law.**** This principle
is especially important in connection with the means provided for the
collection of the public revenue. The power of the state to levy and
collect taxes is inherent in the very notion of sovereignty. And the
efficient exercise of this power (and hence the very maintenance of gov-
ernment) is entirely inconsistent with the idea that a jury, or the courts,
must in all cases lend their aid in the proceedings. It is competent
for the legislature, not only to determine what taxes shall be raised,
but also to prescribe the means of their assessment and of their col-
lection. And as a necessary consequence, it has the right to enact
that payment of taxes shall be enforced by the sale or forfeiture of
the delinquent land. And all this may be done without providing for
any judicial trial of the right to lay the taxes or of the liabiUty of
the person upon whom they are charged.'^*
SOB McMlllen v. Anderson, 06 U. S. 37, 24 L. Ed. 335. See '^Constitutional
Law,*' Dec, Dig, (Key No,) t 28h' Cent. Dig, § 89^,
210 See Kelly v. Pittsburgh. 104 U. S. 78, 26 L, Ed. 658; Hagar v. Reclama-
tion Dlst No. 108^ 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569; State v.
Allen, 2 McOord (S. C.) 65; Albany City Nat. Bank v. Maher (C. C.) 20
Blatchf. 341, 9 Fed. 884 ; Trustees of Grlswold College 7. Davenport, 65 Iowa,
§d 218-221) DUA PROGS88 OF LAW IN SBVSNUE CA8B8. 681
Ittfgal Tasation.
Illegal taxation is a deprivation of the citizen's right of property
without due process of law within the meaning of the constitution,***
whether the illegality arises out of the fact that the property taxed is
beyond the jurisdiction of the state,*** or because the tax is not laid for
a public purpose.*** And although this provision does not prevent
a state from adjusting its system of taxation in all proper and reason-
able ways, nor compel it to adopt any iron rule of equality, but it
may lawfully classify property for the purpose of taxation and im-
pose different rates on different classes,*** yet unjust and invidious
discriminations between individuals or property of the same class,
or unjustifiable disparities in the rate of assessment or taxation between
classes, are violative of the requirement of due process of law.***
683, 22 N. W. 904; Santa Clara Ooiinty t. Sonthem Pae. R. Go. COL a) 18
red. 385; San Mateo Cocmty y. Southern Pae. R. Co. (C. O.) 18 Fed. 722;
Gatch v. Des Moines, 68 Iowa, 718, 18 N. W. 310; In re McMahon, 102 N. Y.
176, 6 N. B. 400, 66 Anu Rep. 706 ; Cincinnati, N. O. ft T. P. R Co. t. Com-
monwealth, 81 Ky. 492 ; Id., 116 U. S. 321, 6 Sup. Ct 57, 29 L. Ed. 414 ; Bart-
lett T. Wilson, 69 Vt. 23, 8 Atl. 321 ; Thompson t. Comnnrnwealth, 123 Ky.
302, 29 Ky. Law Rep. 705, 94 S. W. 654, 124 Am. St Rep. 362 ; New York v«
State Board of Tax Comers, 199 U. S. 1, 25 Sup. Ct 705, 50 L. Ed. 65 ; RaU-
road Tax Cases, 5 Ky. Law Rep. 445; State t. Sponaugle, 46 W. Va. 415, 32
S. E. 283, 43 L. R. A. 727 ; People's Nat Bank v. Marye (a C.) 107 Fed. 570 ;
Trippet T. State, 149 Cal. 521, 86 Pac. 1084, 8 L. R. A. (N. S.) 1210 ; Tralnor
▼. Maverick Loan ft Trust Co., 80 Neb. 626, 114 N. W. 932. See ''OonstUutianal
Lawr Dec. Dig. (Key So.) %% 2St-tS5; Cent. Dig. H B9t^06.
>ii Bunkie Brick Works ▼. Police Jury of AToyellee, 113 La. 1062, 37 South.
970; Henderson Bridge Co. v. Henderson, 173 U. S. 592, 19 Sup. Ct 553, 43
L. Ed. 623. See '*Oan8tUutional Law,*' Dee. Dig. (Key No.) | tSS; Cent, Dig.
H 691, 892.
tit Bu<± y. Beach. 206 U. S. 392, 27 Sup. Ct 712, 51 L. Bd. 1106; AiH>eal
of Nettieton, 76 Conn. 235, 56 Atl. 565. See **Constitutional Law,'* Deo. Dig.
(Key No.) | 288; Cent. Dig. tf 891, 892.
tisFallbrook Irr. Dlst ▼. Bradley, 164 U. S. 112, 17 Sup. Ct. 56, 41 L.
Ed. 369. See "Constitutional Law,** Dec. Dig. (Key No.) | 290; Cent. Dig. U
871-875.
«i* Michigan Cent R. Co. v. Powers, 201 U. S. 245, 26 Sup. Ct 459, 50 L.
Ed. 744 ; McCray v. United States, 195 U. S. 27, 24 Sup. Ot 769, 49 L. Ed.
78; People v. Reardon, 184 N. Y. 431, 77 N. B. 970, 8 L. R. A. (N. a) 314,
112 Am. St Rep. 628. See ^'Constitutional Law,** Dee. Dig. (Key No.) | 283;
Cent. Dig. M 891, 892.
«i» Raymond ▼. Chicago Union Traction Co., 207 U. S. 20, 28 Sup. Ct 7,
52 L. Ed. 78 ; Gulf ft S. I. R Co. v. Adams, 90 Miss. 559, 45 South. 91 ; Cache
County v. Jensen, 21 Utah, 207, 61 Pac. 303. See *Vonstitutional Law,** Deo.
Dig. (Key No.) ft 28S; Cent. Dig. H 891, 892.
582 CIVIL BIOHTS AND THEIB PROTECTION. (Ch. 18
But the legislature may validate a void tax or assessment, if the fatal
defect occurred in some particular which it might have dispensed
with in advance, or if tax payers are given an opportunity to contest
the constitutionality of the curative statute.*^*
Assessment and Equalization.
The assessment of property for taxation is lacking in the element of
due process of law if made according to an arbitrary rule or if in
any way irrational or oppressive,*^^ or if the property of the tax payer
is taken from him without giving him notice of the charge imposed on
him or an opportunity to contest the validity or amount of the assess-
ment.*** It is not necessary, however, that notice should be given of
each step in the process of taxation; it is sufficient if he has an op-
portunity to appear at some time before a board or tribunal having
jurisdiction and authority to hear his objections and adjust his lia-
bility.*** Neither is it necessary that personal notice should be giv-
en ; **• a general notice to all tax payers, given by publication, ad-
vising them of the completion of the assessment roll and of the time
and place of meeting of the board of equalization or review, and that,
they may appear and present their objections, is sufficient;*** and
a i« Spencer y. Merchant, 125 U. S. S45, 8 Sup. Ct. 921, 31 L. Ed. 763;
United States v. Heinszen, 206 U. S. 370. 27 Sup. Ct. 742, 51 L. Ed. 109a A
reassessment of grossly undervalued property, so as to make it bear the same
burden it would have borne if the true assessment had been made in the first
instance, does not violate the constitutional requirement of due process of law.
Weyerhaueser v. Minnesota, 176 U. S. 650, 20 Sup. Ct 485, 44 L. Ed. 583.
Sec '^Constitutional Law,'* Dec. Dig. (Key No.) { 284; Cent. Dig. §§ 89S-S96.
217 Missouri, K. & T. R, Co. of Texas v. Shannon. 100 Tex. 379, 100 S. W.
138. 10 L. K. A. (N. S.) 681 ; State v. Several Parcels of Land, 83 Neb. 13.
119 N. W. 21. See "Constitutional Law," Dec Dig. (Key No.) { 284; Cent.
Dig. {§ 893-896.
218 Central of Georgia Ry. Co. v. Wright, 207 U. S. 127,' 28 Sup. Ct. 47, 52
L. Ed. 134 ; Barber Asphalt Pa v. Co. v. Ridge, 169 Mo. 376, 68 S- W. 1043 ;
Godfrey v. Bennington Water Co., 75 Vt 350, 55 Atl. 654 ; Heth v. Radford,
96 Va. 272, 31 S. E. a See "Constitutional Law,*' Dec. Dig. (Key No.) i 284;
Cent. Dig. §i 893-896.
21* Kentucky Railroad Tax Cases, 115 U. S. 321, 6 Sup. Ct 57, 29 L. Ed.
414 ; State v. Several Parcels of Land, 83 Neb. 13, 119 N. W. 21 ; Kinston v.
Loftln, 149 N. a 255, 62 S. E. 1069. See "Constitutional Law,** Dec Dig. (Key
No.) if 229, 28S; Cent. Dig. if 685, 892.
220 Notice to corporation as representing Its stockholders, see Ctorry y.
Baltimore, 96 Md. 310, 53 AU. 942, 103 Am. St Rep. 364. See "Constitutional
Law;* Dec. Dig. (Key No.) § 284; Cent. Dig. §S 893-896.
iti Jackson Lumber Co. t. McCrlmmon (C. C.) 164 Fed. 769; ChUse v.
§§ 21S-221) DUE PROCESS OF LAW IN BEYENUB CASKS. 583
even this may be dispensed with where the amount of the tax is fixed
by law and not subject to change or reduction, as in the case of license
fees,'** or where the proceeding is for the equalization of valuations
between the different municipal divisions of the taxing district, the
board not acting on the individual tax payers.**' But where a no-
tice is required and given, it must afford the tax payer a reasonable
time in which to prepare and present his objections; if the time al-
lowed is so short as practically to cut oflF his right of appeal, the pro-
ceedings will not constitute due process of law.*** As to the hearing
and contest, there must be something more than a mere opportunity
to submit written objections or remonstrances to the board of re-
view.**' But it is not necessary that the hearing should precede the
formal order fixing the amount of the assessment; it is enough if a
hearing is given after that step has been taken, or if an opportunity
to contest it is accorded in subsequent proceedings for the collection
of the tax or in a suit to enjoin its collection.***
Enforcement and Collection of Taxes.
Where the statute sets forth the time and circumstances under which
lands shall be sold for the delinquent taxes, property owners are bound
to acquaint themselves with its provisions, and personal notice to them
is not a prerequisite to the validity of the sale.**^ In the case of non-
resident owners, notice may be given by publication in a newspaper,***
Trout, 146 Cal. 850, 80 Pac. 81 ; Baltimore & O. & C R. Ck>. y. Sawvel, 188
Ind. eoe, 87 N. B. 1018; Gnllfoyle's Ex'r v. Maysvllle (Ky.) 112 S. W. 666.
See ""CorMtitutiondl Law,*" Dec, Dig. (Key No.) | 28^; Cent. Dig, §| S9^-%96.
"* Hodge y. Muscatine Ck>unty, 196 U. S. 276, 25 Sup. Ot. 237, 49 L. Ed.
477; Oundling v. Chicago, 177 U. S. 1S3, 20 Sap. Ct 638, 44 L. Ed. 725. Bee
^^Constitutional Law," Deo. Dig. (Key No.) S «87; Cent. Dig. ${| 831, 905.
SS8 Foster y. Rowe, 128 Wis. 826, 107 N. W. 635. See **Con9titutional Law,''
Deo. Dig. (Key No.) { 284; Cent. Dig. if 898-^6.
*S4 Ballard y. Hunter, 204 U. S. 241, 27 Sup. Ot 261, 51 L. Ed. 461 ; Bell-
Ingham Bay & B. a R. Co. y. New Whatcom, 172 U. S. 314, 19 Sup. Ct 205, 43
L. Ed. 460. Bee ^'Constitutional Law,** Dec. Dig. (Key No.) H 284, 285; Cent.
Dig. §$ 898-^6, 899.
s>« Londoner y. City and County of Denyer, 210 U. S. 378, 28 Sup. Ct 708,
52 L. Ed. 1103. Bee "Constitutional Law,*' Dec. Dig. (Key No.) | 284; Cent.
Dig. §1 893-^96.
ss«Oskamp y. Lewis (C. C.) 103 Fed. 906; State y. Springer, 134 Mo. 212,
85 S. W. 589; Hacker y. Howe, 72 Xeb. 385, 101 N. W. 255. Bee ^'Constitur
tional Law," Dec. Dig. (Key No.) | 284; Cent. Dig. || 893-896.
a«T City of BeatHce y. Wrigh". 72 Neb. 689, 101 N. W. 1039. Bee **Constitu-
tional Law," Dec. Dig. (Key No.) | 285; Cent. Dig. U 8&7-903.
its Ballard y. Hunter, 204 U. S. 241, 27 Sup. Ot 261, 51 L. Bd. 461 (af-
584 CIVIL RIGHTS AND THEIR PROTBCTION. (Ch. 18
and in the case of unknown owners, the lien of taxes may be fore-
closed by a proceeding in rem without joining them as parties.*'* But
to sell the property of one person for the payment of another's taxes
is not due process of law.*'*
Special Assessments for Local Improvements.
To authorize the construction of local improvements and to assess
the cost thereof, wholly or in part, upon the owners of the property
specially benefited, is not taking property without due process of
law,**^ provided the assessment, in each case, is not substantially in
excess of the benefit to accrue to the particular property.*** The
cost of such an improvement as street paving, laying sidewalks, or
the construction of a trunk sewer, may be apportioned among the
owners of abutting lots in proportion to their frontage on the street.*'*
But no such assessment can be made a personal charge upon the owner
of the property if a non-resident of the state.*** The owners of prop-
flrming 74 Ark. 174, 86 S. W. 252) ; Young v. Jacksan (Tex. Civ. App.) 110
S. W. 74. See **Con9titutional Law,'* Deo. Dig, (Key No.) |{ i884i 285; Cent.
Dig. %% 89S-90S.
a2» Leigh y. Green, 64 Neb. 633, 90 N. W. 266, 101 Am. St Rep. 692 (at-
firmed, 193 U. S. 79, 24 Sup. Ot 390, 48 L. Ed. 623) ; King t. Mulling, 171 U.
a 404, 18 Sup. Ct. 925, 43 L. Ed. 214. See ^^Constitutional Law,'* Dec. Dig.
(Key No.) | 285; Cent. Dig. || 897-90S.
a«o Knoxville Traction Co. v. McMillan, 111 Tenn. 621, 77 S. W. 665, 66 L.
R. A. 296. See "Constitutional Law,** Dec. Dig. (Key No.) | 287; Cent. Dig.
If 8S1, 905.
281 Walston V. Nevln, 128 U. S. 678, 9 Sup. Ct. 192. 32 L. Ed. 544; Webster
r. Fargo, 181 U. S. 394, 21 Sup. Ct 623, 45 L. Ed. 912; Harton v. Town of
Avondale, 147 Ala. 458, 41 South. 934 ; Goodrich t. Detroit 123 Mich. 559, 82
N. W. 255. See ^'Constitutional Law,** Dec. Dig. (Key No.) if 288-290; Cent.
Dig. |§ 870 875.
282 Volght V. Detroit 184 U. S. 115, 22 Sup. Ct. 337, 46 L. Ed. 459; White
V. Tacoma (C. C.) 109 Fed. 32 ; Hutcheson v. Storrie, 92 Tex. 685, 51 S. W.
848, 45 L. R. A. 289, 71 Am. St Rep. 884 ; Barfleld v. Louisyille, 23 Ky. Law
Rep. 1102, 64 S. W. 959. See ^'Constitutional Law," Dec. Dig. (Key No.) {
290; Cent. Dig. §S 871--875.
238Tonawanda v. Lyon, 181 U. S. 380, 21 Sup. Ct 609, 45 L. Ed. 908;
Schaefer v. Werling, 188 U. S. 516, 23 Sup. Ct 449, 47 L. Ed. 570 ; Taylor v.
Crawfordsville, 155 Ind. 403, 58 N. E. 490; Cass Farm Co. v. Detroit 124
Mich. 433, 83 N. W. 108 ; Franklin v. Hancock, 201 Pa. 110, 53 Atl. 644. But
compare Adams v. Shelbyvllle, 154 Ind. 467, 57 N. E. 114, 49 L. R. A. 797, 77
Am, St Rep. 484; City of Chicago v. Wells, 236 lU. 129, 86 N. B. 197, 127
Am. St Rep. 282 ; Zehnder v. Barber Asphalt Par. Co. (C. C.) 106 Fed. 103.
See "Constitutional Law,*' Dec. Dig. (Key No.) { 290; Cent. Dig. || 871-875.
234 Dewey v. Des Moines, 173 U. S. 193, 19 Sup. Ct. 379. 43 L. Ed. 605.
See 'VonstUutional Laic," Dec Dig. (Key No.) | 290; Cent. Dig. §i 871-S75.
I 222) DUE PROCESS OF LAW IN EMINENT DOMAIN. 585
crty affected are not constitutionally entitled to notice of the pro-
posal or intention to make the improvement in question, or of the
fact that it has been ordered ; *•• but at some stage of the proceeding
each owner must be accorded notice and an opportunity to contest
the justice, validity, or amount of his assessment before it becomes a
fixed charge on his property, before some court or board authorized
to relieve him in case the assessment is shown to be invalid or incor-
rect.*'* This notice, however, may be such a constructive notice as
is appropriate to the nature of the case, and may be a general notice
given by publication in a newspaper.**^
BITE PROCESS OF I.AW IE EMINEET BOMAIE PBOOEEDIEGS*
222. In vroeeedinffs for the eondenuiatioii of private property for pvb-
lie luoy the eonstltiational proTislon for due proeeee of law re-
quires that the owner of the property shall have his damages
assessed in sone fair and adequate proeeedins, of whieh he
■hall have notiee and in whieh he shall have an opportunity to
bo heardy and that he shall reeeive Just eonpensation.
The requirement of due process of law/ipplies no less to proceed-
ings under the power of eminent domain than to any others; but
if one's property is taken under condemnation proceedings regularly
»• Goodrich y. Detroit, 184 V. S. 482, 22 Sap. Ct 397, 46 L. Ed. 627 ; Schlnt-
gen y. La Crosse, 117 Wis. 158, 94 N. W. 84 ; Corrlgnn v. Kansas City. 211 Mo.
608, 111 S. W. 116; City of Perry v. Davis & Younger, 18 Okl. 427, 90 Pac.
865. See **€(msHtutional Law," Dec. Dig. (Key No.) | $90; Cent. Dig. U
87i-S75.
2S6 Hibben ▼. Smith, 191 U. S. 310, 24 Sup. Ct. 88, 48 L. Ed. 195; Road
Imp. Dlst. No. 1 V. Glover, 86 Ark. 231, 110 S. W. 1031 ; McChesney v. Chicago,
227 111. 450, 81 N. E. 435: Job v. Alton, 189 111. 256, 59 N. B. 622, 82 Am,
St Rep. 448; Dyer v. Woods, 166 Ind. 44, 76 N. E. 624; In re Johnson
Drainage Dlst, 141 Iowa, 380, 118 N. W. 380; Corcoran v. Board of Alder-
men of City of Cambridge, 109 Mass. 5, 85 N. E. 155, 18 L. R. A. (X. S.) 187 ;
In re City of New York, 95 App. Dlv. 552, 89 N. Y. Siipp. 6 ; St Benedict's
Abbey v. Marlon County, 50 Or. 411, 93 Pac. 231 ; Adams v. Roanoke, 102 Va.
53, 45 S. E. 881. See Naylor v. Harrlsonvllle, 207 Mo. 311, 105 S. W. 1074.
See **OoMtituti<mal Late," Dec. Dig. (Key No.) § 290; Cent. Dig. {§ 871-875.
asT Gage v. Chicago, 225 111. 218, 80 N. E. 127; Kansas City v. Duncan, 135
Mo. 571, 37 S. W. 513; Hoertz v. Jefferson Southern Pond Draining Co., 119
Ky. 824, 84 S. W. 1141, 27 Ky. Law Kep. 27a See "ConatitutiofuU L«u\" Dec
Dig. (Key No.) ( 290; Cent. Dig. §( 871-875.
586 CIVIL BIGHTS AND THEIR PBOTBCTION. (Ch. 18
conducted and upon the payment of just compensation, he is not de-
prived of it without due process of law.*'* But provision must be
made for the assessment of damages in some adequate proceeding in
the nature of a judicial inquiry,*'* but not necessarily before a jury,***
of which due and proper notice shall be given to the owners whose
property is to be condemned,*** and in which they shall have a full
and fair opportunity to be heard on the question of the compensation
to be awarded to them or to oppose and contest the findings on this
point made by the appraisers or jury of inquest; *** and finally, just
compensation must be awarded, for if none is given, or if inadequate
damages are allowed, there is a want of due process of law.*** But
it is not unconstitutional to permit the actual taking possession of
the property, pending the condemnation proceedings, if adequate pro-
t88 Offield V. New York, N. H. & H. R. Co., 203 U. S. 372. 27 Sup. Ot 72,
61 L. Ed. 231 ; New York, N. H. & H. R. C!o. v. Offield, 77 CJonn. 417. 59 Ati.
610 ; City of Belleville v. St Clair County Turnpike Co., 234 ni. 428, 84 N.
B. 1049, 17 L. R. A. (N. S.) 1071 ; In re TuthUl, 36 App. Dlv. 492, 55 N. Y.
Supp. 657; Gilmer v. Hunnicutt, 57 S. C. 166, 35 S. E. 521. See "CofwWti*-
tional Law," Dec. Dig. (Key No.) §f 280, 281; Cent. Dig. if 877-890.
a«» Painter v. St. Clair, 98 Ya. 85. 34 S. E. 989. See ^Vonstitutional Law,*"
Dec. Dig. (Key No.) | 280; Cent. Dig. f| 877-890.
a4o Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 17 Sup. Gt
718, 41 L. Ed. 1165 ; In re Bradley, 108 Iowa, 476, 79 N. W. 280. See *'Comti'
tutional Law;* Dec. Dig. (Key No.) | 280; Cent. Dig. §f 877-890.
S41 But this notice may be constructive or by publication in the case of
non-resident owners. Huling v. Kaw Valley "EL & Improvement Co., 130 U.
S. 559, 9 Sup. Ct. 608, 32 L. Ed< 1045. See **Etninent Domain,*' Dec. Dig. (Key
No.) § 181; Cent. Dig. f i92.
2*2 Dodd V. Hart, 8 Del. Cb. 448, 68 Atl. 397; Savannah, F. & W. R. Co.
V. Postal Tel. Cable Co., 112 Ga. 941, 38 S. E. 353 ; In re City of New York,
34 Misc. Rep. 719, 70 N. Y. Supp. 227; Tucker v. Paris (Tex. Civ. App.) 99
S. W. 1127 ; Sterritt v. Young, 14 Wyo. 146, 82 Pac. 946, 4 L. R. A. (N. S.)
169, 119 Am. St Rep. 994. See Chicago, B. & Q. R. Co. v. Chicago, 166 U. S.
226, 17 Sup. Ct 581, 41 L. Ed. 979. See "Constitutional Law," Dec. Dig. (Key
No.) §1 280, 281; Cent. Dig. f§ 877-890.
248 Chicago, B. & Q. It Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct 681, 41
L. Ed. 979; Newburyport Water Co. v. Newburyport (a C.) 108 Fed. 584.
For a city to condemn land for a street through the property of a single
owner, and then assess back upon his abutting property the entire damages
awarded, is taking his property without due process of law. Village of Nor-
wood V. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443 (affirming Baker
V. Village of Norwood [O. C] 74 Fed. 997) ; Scott v. Toledo (C. C.) 36 Fed.
385, 1 L. R. A. 68a i^ee ^'Constitutional Law," Dec. Dig. (Key No.) (| 280. 281;
Cent. Dig. (( 877-890.
§ 223) DUB PROCESS OF LAW IN JUDICIAL ACTION. 587
vision is made for the payment of just compensation when the amount
shall be ascertained.***
BUS PROCESS OF I.AW IIT JI7DICIAZ. AOTIOH.
223. Bne process of law In JndleUd aotion implies a regular proceed-
iac before a eompetent oonrt, possessing Jnrisdictiony witli an
opportunity to the party t6 appear and be beard in bis own de-
fense or in rebnttal of tbe elalni made against bis property.
As applied to judicial proceedings, the requirement of due process
of law involves the action of a competent and impartial tribunal pos-
sessing jurisdiction and clothed with authority to hear and determine
the questions at issue,** • and following a regular and orderly course
of legal procedure according to the rules established for the enforce-
ment and vindication of private rights,*** and of which the party to be
affected shall have such actual or constructive notice as is appropriate
to the case and necessary to confer jurisdiction, and in which he
a** Backus v. Fort St Union Depot Co., 169 U. S. 557, IS Sup. Ct 445, 42
1m Ed. 853. See '*Con8titutio7tal Law," Dec. Dig. (Key No.) |§ 280, 281; Cent.
Dig. if 877-890.
2*6 Charles v. Marlon (a C.) 98 Fed. 166; Gates v. State (Tex. Or. App.) 121
S. W. d70. To compel a litigant to submit his controverBy to a tribunal of
which his adversary is a member does not afford due process of law. Commlp-
Bloners of Union Drainage DIst No. 1 v. Smith, 233 111. 417, 84 N. B. 376, 16
L. R. A. (N. S.) 292. See "Constitutional Law,*' Dec. Dig. (Key No.) § 251;
Cent. Dig. fS 726, 727.
a*«In re McPhee's Estate, 154 Cal. 385, 97 Pac. 878; In re Kmg (0. C.)
79 Fed. 308; Williams* Adm'r y. Newman, 93 Va. 719, 26 S. E. 19. The con-
stitution does not require that the proceedings should be by any particular
mode, if they constitute a regular course of procedure in which notice is given
of the claim asserted and an opportunity afforded to defend against it Si-
mon y. Graft, 182 U. S. 427, 21 Sup. Gt 836, 45 L. Ed. 1165 ; Smith y. State
Board of Medical Examiners (Iowa) 117 N. W. 1116. This constitutional pro-
vision does not secure to an accused person the right to be represented by
counsel (People v. Ghicago, 127 111. App. 118), nor secure him against being
compelled to testify against himself (Twining v. New Jersey, 211 U. S. 78,
29 Sup. Gt 14, 53 L. Ed. 97) ; nor does it forbid the reception of unsworn tes-
timony (People V. Sexton, 187 N. Y. 495, 80 N. B. 396, 116 Am. St Eep. 621).
But on the other hand, to make certain facts conclusive proof of title or of
adverse possession is not in accordance with what the constitution requires.
Marmet-Halm Goal Go. v. Gincinnati, h. & A. Electric St By., 28 Ohio Gir.
CJt B. 6ia See "Constitutional Law,** Dec. Dig. (Key No.) ff 256-272, S0i'S17;
Cent. Dig. U 746-761, 925-949.
588 CIVIL RIGHTS AND THEIR PROTECTION. (Ch. 18
shall have a full and fair opportunity to plead and to support his rights,
claims, or defenses, as the case may be.***
Trial by Jury.
Trial by jury is not essential to constitute due process of law. Reg-
ular and orderly proceedings, founded on notice to the party affected
and affording him a full opportunity to be heard in his own behalf,
may fulfill the constitutional requirement, though conducted without
a jury, as, for example, in the case of suits in equity and in admiralty
and proceedings in quo warranto and for the punishment of con-
tempts, as well as new forms of action of statutory origin.***
Right of Appeal.
It is not a necessary element of due process of law that the party
affected should have a review of his case by an appellate tribunal.
Even in criminal cases, and even in those involving capital punishment,
an appeal may be denied without violating the constitutional require-
ment.***
Remedies and Defenses.
One who is denied access to the courts for the enforcement of his
rights, the redress of injuries, or for his defense against claims made
«4T Morley v. Lake Sbore & M. S. R. Co., 146 V. S. 162. 13 Sup. C?L 54,
36 L. Ed. 925; Jenks y. Stump. 41 Colo. 2St. 93 Pac. 17. 124 Am. St Rep.
137; State v. District Court of St LouIb County. 90 Minn. 467. 97 N. W
132; In re Roaeer, 101 Fed. 562. 41 C C. A. 497; McConnell v. Bell (Tenn.)
114 S. W. 203; Louisville School Board v. King, 127 Ky. 824. 32 Ky. Law
Rep. 687, 107 S. W. 247. 16 L. R. A. (N. S.) 379; Perslng v. Reno Stock
Brokerage Co. (Ner.) 96 Pac. 1054; Wright v. Crajdlebaugh. 3 Nev. 341. See
'Vonstitutional Laic,*' Dec. Dig. (Key No.) |{ 256-272, S04-S17; Cent. Dig. Sf
746-761, 925-949.
«4« Marvin v. Trout. 199 U. S. 212. 26 Sup. Ct 81, 50 L. Ed. 157; Tinsley
V. Anderson. 171 U. S. 101, 18 Sup. Ct. 805, 43 L. Ed. 91 ; Wilson v. North
Carolina, 169 U. S. 586, 18 Sup. Ct. 435, 42 Ia Ed. 865 ; Lent v. Tinson, 140
U. S. 816, 11 Sup. Ct 825, 35 L. Ed. 419 ; Davidson y. New Orleans, 96 U. S.
97. 24 L. Ed. 616; Kirkland v. State, 72 Ark. 171, 78 S. W. 770, 65 L. R. A.
76, 105 Am. St. Rep. 25 ; Hood v. Tharp, 228 111. 244, 81 N, E. 861 ; Brown's
Case, 173 Mass. 498, 53 N. E. 998; Smith v. Speed, 11 Okl. 95, 66 Pac. 511,
55 L. R. A. 402 ; Gunn v. Union R. Co., 27 R. I. 320, 62 Atl. 118, 2 L. R. A.
(N. S.) 362. See ^^Constitutional Law,** Deo. Dig. (Key No.) H 267, SIS; Cent.
Dig. f§ 754, 9SS.
24»Andrews v. Swartz. 156 U. 9. 272, 15 Sup. Ct. 389, 39 L. Ed. 422; Saylor
V. Duel, 236 111. 429, 86 N. B. 119, 19 L. R. A. (N. S.) 377; McCue v. Com-
monwealth, 103 Va. 870, 49 S. E. 623 ; Ward v. State, 171 Ind. 565, 86 N. B.
994. See '^Constitutional Law,** Dec Dig. (Key No.) 8§ 271, 316; Cent. Dig. ff
760, 9S8.
§ 223) DUa PROOK88 OF LAW IN JUDICIAL ACTION. 589
upon him, is deprived of his property without due process of law;
and hence a statute which destroys existing rights of action or exist-
ing defenses or forbids the maintenance of actions, is unconstitution-
al,^"^ in so far as it affects substantial rights, as distinguished from
those founded on mere technicalities or on arbitrary rules of law,*'*
and rights of action distinctly created by statute or always recognized
as existing at common law,**' unless the statute at the same time gives
a new and substantially equivalent action ; *** and where no adequate
remedy at law is provided, one cannot be deprived by statute of his
right to resort to a court of chancery for the exercise of its usual pre-
ventive remedies.*** It is of course within the constitutional power
of the legislature to enact statutes of limitation, and they may be made
retroactive ; but when this is done, a time must be fixed witfiin which
suits may be brought on existing causes of action which otherwise
would be barred by the statute, and if the time so fixed is so short
that it amounts to a practical denial of an opportunity to sue, the stat-
ute will be held unconstitutional as depriving parties of their property
without due process of law.**' On the other hand, the right to plead
t»o In re rinkes, 157 Mo. 125, 57 S. W. 545. 51 L. EL ▲. 176. 80 Am. St Rep.
619; Swing v. Brlster. 87 Mlse. 516, 40 South. 146. See MacMullen y. Mid-
dletown, 187 N. T. 87, 79 N. E. 863. 11 L. R. A- (N. S.) 391. See '*Oomtitutional
Law,*' Dec. Dig. (Key No J | S07; Cent Dig. | 925.
151 Plummer v. Northern Pac. R. Co. (C. C.) 152 Fed. 206; WilUaina v. Gal-
veston, 41 Tex. Giy. App. 63, 90 S. W. 505 ; Steele County v. Erskine, 98 Fed.
215. 89 a C. A. 178. See ^'Constitutional Law,** Dee. Dig. (Key THo.) | iOl;
Cent. Dig. | 9t5.
afts Abbott Y. National Bank of Commerce, 175 U. S. 409, 20 Sup. Ct 153.
44 L. Ed. 217. holding that a person is not deprived of his reputation (even
If that constitutes property) without due process of law by denying his right
to an action for defamatory words in a pleading. See ''Constitutional Law,**
Dec. Dig. (Key So.) | S07; Cent. Dig. | 9i5.
«»» Scott V. District Court of Fifth Judicial Dlst. for Barnes County, 15
N. D. 259, 107 N. W. 61. See '*ConstUutional Law,** Dec Dig. (Key No.) |
507; Cent. Dig. | 925.
SB* Central of Geor(?ia Ry. Co. v. Railroad Commission of Alabama (C. C.)
161 Fed. 925. See "Constitutional Law,** Dec Dig. (Key No.) ff S05-S08;
Cent. Dig. U 925-927.
>•§ LamI) V. Powder River Live Stock Co., 132 Fed. 434, 65 C C. A. 570,
67 Ii. R. A. 558; Thoenl v. Dubuque, 115 Iowa, 482. 88 N. W. 907; Terry v.
Ilelsen, 115 La. 1070, 40 South. 461 ; Osborne v. Undstrom, 9 N. D. 1, 81 N.
W. 72, 46 L. R. A. 715, 81 Am. St. Rep. 516 ; Williams v. Village of Port Ches-
ter. 72 App. Dlv. 505, 76 N. Y. Supp. 631. See "Constitutional Law;* Dec Dig.
(Key No.) | 508; Cent. Dig. f 925.
590 CIVIL BIGHTS AND THEIR PROTECTION. (Ch. 18
the statute of limitations as a defense to an obligation is not "prop-
erty," and the removal of the bar by statute is not contrary to the
constitutional requirement.*'*
Jurisdiction.
The validity of judicial action, as tested by this requirement of the
constitution, is primarily dependent upon jurisdiction; and jurisdic-
tion of the person is acquired by the service upon him of a notice or
summons advising him of the proceeding against him and tendering
him his day in court.* *^ This process must be served upon each of
J the parties concerned,*** or upon a duly authorized agent or represen-
^; tative,*** though a corporation may be brought into court without
making its individual members parties to the suit.**® Further, the
party to be charged must have the privilege of challenging the juris-
diction of the court by showing the want of service upon him or the
invalidity of the process.*** The law may provide for a substituted
*■• People V. Board of Education and Trustees of School Dlst. No. 1 of Hav-
erstraw, 126 App. Div. 414, 110 N. Y. Supp. 769. See ^^Constitutional Law;*
Dec, Dig. (Key No.) | SOS; Cent. Dig. S 925.
a»T Bouse, Hazard & Co. v. Donovan, 104 Mich. 234. 62 N. W. 359, 27 L. R. A.
577, 53 Am. St. Rep. 457. See ^'Constitutional Late,** Dec. Dig. (Key No.) |
S09; Cent. Dig. { 929.
«■» There are exceptions to this rule under the "joint debtor acts" of some
of the states, where suit is brought on a joint contract or against a partner-
ship. See Brooks y. Mclntyre, 4 Mich. 316. And see generally, 1 Black,
Judgm. §§ 233-237. See ''Constitutional Law,'* Dec. Dig. (Key No.) { S09;
Cent. Dig. i§ 929, 9S0.
2BB There is no constitutional objection to requiring foreign corporations
doing business within the state to appoint a resident agent upon whom pro-
cess may be served- Groel v. United Electric Ck). of New Jersey, 69 N. J.
Eq. 397,- 60 Atl. 822; Olender y. Crystalline Min. Co., 149 Cal. 482, 86 Pac.
1082. But a statute authorizing service of process on a domestic private
corporation by leaving a copy of such process with the register of deeds, is
unconstitutional. Plnney v. Providence Loan & Investment Co., 106 Wis. 396»
82 N. W. 308, 50 L. R. A. 577, 80 Am. St Rep. 41. See "Constitutional Law,''
Deo. Dig. (Key No.) § S09; Cent. Dig. i§ 929, 930.
aeo New Orleans Debenture Redemption Co. v. Louisiana, 180 U. S. 320, 21
Sup. Ct 378, 45 L. Ed. 550. See "Constitutional Law,** Dec Dig. (Key No.) |
S09; Cent. Dig. If 929, 9S0.
261 See 1 Black, Judgm. if 223, 224. See Kauffman v. Wootters, 138 U. S.
285t 11 Sup. Ct. 298, 34 L. Ed. 962, as to statute forbidding appearance for
the mere purpose of challenging the jurisdiction without surrender to the
jurisdiction. And see Warren v. Wilner, 61 Kan. 719, 60 Pac. 745, as to mak-
ing sheriff's return of service conclusive evidence thereof. See "Constitutionai
Law,** Dec. Dig. (Key No.) § 309; Cent. Dig. i§ 929, 930.
§ 228) DUB PROCESS OF LAW IN JUDICIAL ACTION. 691
service or publication of notice where actual service of process is im-
practicable; and such constructive service, if authorized by statute,
will be regarded as due process of law,*** except in actions against
non-residents, where it is sought to obtain a personal judgment
against them, for here there must be personal service of process within
the state.*** Not only notice of the suit is required by this provision
of the constitution, but also notice of the claim or defense to be set
up and the issue to be tried.*** And although there need not ordinarily
be actual notification of the successive steps in an action, such as pro-
ceedings to advance the cause on the trial docket,*** yet the juris-
diction of the court over the parties and the cause must be continu-
ous, and if once lost must be acquired de novo; and hence where
a party is dismissed from the cause, and a judgment by default is
entered against him at a subsequent term, without new notice to him,
he is deprived of his property without due process of law.***
Proceedings in Personam and in RCm,
These two classes of proceedings are distinguished as follows: A
proceeding in personam is one whereby it is sought to obtain an ad-
judication against an individual fixing upon him a personal respon-
sibility, liability, or duty; a proceeding in rem is one which seeks to
determine the liability of a particular estate or article of property to
the satisfaction of a specific claim made against it, or to determine
a question of status. In actions in personam, jurisdiction of the per-
son must be obtained by the service of process upon him within the
territorial jurisdiction; otherwise no personal judgment can be ren-
*•« Roberts v. Jacob, 154 Cal. 307, 97 Pac. 671 ; Clearwater Mercantile Co.
V. Roberts, Johnson Rand Shoe Co., 51 Fla. 176, 40 South. 436, 4 Li R. A. (N.
S.) 117. 120 Am. St Rep. 153 ; State v. Gullbert 56 Ohio St. 575, 47 N. E. 551,
38 L. R. A. 519, 60 Am. St. Rep. 756 ; Baltimore & O. R. Co. v. Pittsburg, W.
& K. R. Co., 17 W. Va. 812. See ''Oonsmutional Law,** Dec. Dig. (Key No.) §
S09; Cent. Dig. {{ 929, 9S0.
«•» Pennoyer v. Neff. 95 U. S. 714, 24 Lw Ed. 565 ; Old Wayne Mut Life
A8S*n T. McI>onough, 204 U. S. 8, 27 Sup. Ot 236, 51 L. Ed. 345 ; Elmendorf
y. Elmendorf, 58 N. J. Eq. 113, 44 AtL 164 ; Aikmann T. Sanderson & Porter,
122 La. 265, 47 South. 600. See **Con8titutional Law^" Dec. Dig. (Key No.) %
S09; Cent. Dig. §i 929, 9S0.
se* Castle r. Persons, 117 Fed. 835, 54 C. C. A. 133. See "Constitutional
Law,*' Dec. Dig. (Key No.) I S09; Cent. Dig. fS 929, 9S0.
2«5 Bonney v. McClelland, 235 111. 259, 85 N. E. 242. See ''Constitutional
Law,** Dec Dig. (Key No.) | SU; Cent. Dig. ^ 9S4>
t«« Liddell y. Landau, 87 Ark. 438, 112 S. W. 1085. See "Constitutional
Law,** Dec. Dig. (Key No.) f 309; Cent. Dig. If 929, 930.
1 '
1 1
592 CIVIL RIOHTS AND THEIR PROTECTION. (Ch. 18
dered against him which will answer the requirement of due process
of law. In proceedings in rem, jurisdiction is obtained by the seizure
or attachment of the property, or (in cases of status) by the jurisdic-
tion of the person whose status is to be passed upon. Examples of
proceedings in rem arc libels in admiralty or prize cases, forfeitures
under the revenue laws, actions begun by the attachment of property
of non-residents, and inquisitions of lunacy and actions in divorce.
In all these cases, the constitutional requirement is fully satisfied if
there is such jurisdiction as may be obtained by the corporal subjec-
tion of the property in question to the control of the court, or, in
divorce and lunacy cases, jurisdiction of the person whose status is
in question. No personal notice need be served on the owner of
the property or on the defendiant in divorce, if he is beyond the ter-
ritorial jurisdiction of the court; but it is sufficient if a reasonable
constructive notice is given to him, as by the publication of an ad-
vertisement.*** And the same principles apply to proceedings for the
probate of a will or the administration of a decedent's estate,*** and,
according to some of the decisions, to statutory proceedings for the
distribution of the estate of a person absent and unheard of for a
certain term of years and therefore presumed to be dead.'**
Summary Proceedings.
Summary proceedings against sheriffs, constables, sureties on bail
and appeal bonds, collectors of the public revenue, and the like, are
not inconsistent with the constitutional guaranty of due process of
law. Thus, the auditing of the accounts of a collector of the customs,
««T Happy ▼. Moslier, 48 N. T. 313; Gray v. Kimball, 42 Me. 299; Pennoyer
V. Neff. 05 U. S. 714, 24 L. Ed. 565 ; State v. Chittenden, 127 Wis. 468, 107
N. W. 500; Ex parte Scudamore, 55 Fla. 211, 46 South. 279; Roller v. Holly,
176 U. S. 398» 20 Sup. Ct 410^ 44 L. Ed. 520. See ^^Constitutional Law,'' Deo.
Dig. (Key No.) § 309; Cent. Dig. §§ 929, 930.
««8 Goodrich v. Ferris (C. C.) 145 Fed. 844; Tracy v. Muir. 151 Cal. 363, 90
Pac. 832, 121 Am. St Rep. 117; McCaughey v. Lyall, 152 Cal. 615, 93 Pac
681; In re Davis' Estate, 151 Cal. 318, 86 Pac. 183. 121 Am. St. Rep. 105.
8ee **0on8titufional Law,** Deo. Dig. (Key No.) §i 2^9, 309; Cent. Dig. H
110, 929, 930.
26* Cunnlus v. Reading School Dist., 198 U. S. 458, 25 Sup. Gt 721, 49 L.
Ed. 1125; Nelson v. Blinn, 197 Mass. 279, 83 N. E. 889, 15 L. R. A. (N. S.)
651, 125 Am. St. Rep. 364. But compare Savings Bank of Baltimore v. Weeks,
103 Md. 601, 64 Atl. 295, 6 L. R. A. (N. S.) 690; Clapp v. Houg, 12 N. D.
600, 98 N. W. 710, 65 L. R. A. 757, 102 Am. St. Rep. 589 ; Carr v. Brown,
20 R. I. 215, 38 Atl. 9, 38 L. R. A. 294, 78 Am. St Rep. 855. See "Constitutional
Law;* Deo. Dig. (Key No.) S§ 306, 309; Cent. Dig. §§ 928-930.
§228) PUK PROOE88 OF LAW IN JUDICIAL ACTION. 693
and ascertainment of the balance due from him at the treasury de-
partment, the issue of a distress warrant therefor, and a levy on hi?
property under the warrant, do not conflict with this provision of the
constitution.*^* And the same rule applies to such proceedings as the •
appointment of a receiver in bankruptcy,*'* the suspension of a public
officer pending his indictment for misfeasance in office,*'* a proceed-
ing to hold a party liable to the payment of a judgment by rule to
show cause,*'* and proceedings preliminary to a prosecution under
the anti-trust laws.*'* So also, the law- giving landlords the right to
seize property under a distress warrant for rent is not unconstitutional
as depriving the tenant of his property without due process of law,
though it denies him a trial by jury.*" But in general summary pro-
ceedings affecting substantial personal or property rights are not much
favored, and there is a disposition to restrict them to cases where they
are sanctioned by immemorial usage or the long established practice
of the courts.*'*
Punishment of Contempts of Court.
A person who is imprisoned or fined for a contempt of court is not
deprived of his liberty or property without due process of law, if the
proceedings were regular, although he was not tried by a jury, and
although the authority which inflicts the punishment is the same to
which the wrong was done.
«To Mnrray v. Hoboken Land & Imp. Co., 18 How. 272, 15 L. M. 372 ; United
States V. DilUn, 168 Fed. 813, 94 C. a A. 837. See *Von8titutional Law,'* Dec.
Dig, (Key No,) | 306; Cent, Difj. | 9i8.
2T1 In re Francis (D. (X) 136 Fed. 912. Bee **€onstituHonal Law,** Dec. Dig.
(Key No.) | $12; Cent, Dig. | 928,
2T5 Sumpter v. State, 81 Ark. 60, 98 S. W. 719. See "Constitutional Law/*
Dec, Dig, (Key No,) { 877; Cent, Dig, S 9^9.
«T8 Louisville & N. R. Co. v. Schmidt, 177 V. S. 230, 20 Sup. Ct 620, 44
L. Ed. 747. See "Constitutional Law,'* Dec. Dig. (Key No.) i 306.
ST 4 Jack y. Rnnsas, 199 U. S. 372, 26 Sup. Ot 78, 50 L. Ed. 234. See ''Con-
stitutional Law,** Dec. Dig. (Key No.) | 306.
sTsGamett v. Jennings, 44 9. W. 382, 19 Ky. Law Rep. 1712; Anderson ▼.
Henry, 45 W. Va. 319, 31 S. E. 998. See "Constitutional Law,** Deo. Dig. (Key
No.) i 306.
276 See In re Roberts, 4 Kan. Ai^. 292, 45 Pac 942; Board of Com'rs of
Petite Anse Drainage Dist v. Iberia & V. R. Co., 117 La. 940, 42 South. 433 ;
In re Robinson's Estate, 69 Misc. Rep. 323, 112 N. Y. Supp. 280; Mill v.
Brown, 31 Utah, 478, 88 Paa 609, 120 Am. St Rep. 935. See **Constitutionai
Law,** Dec, Dig. (Key No.) | 306.
BL.Coir8T.L.(3o. Bd.)— ^
594 CITIL RIGHTS AND THBIB PROTECTION. (Ch. 18
Contempts of court are usually classified as direct and constructive.
Direct contempts are those committed in the presence of the court,
sitting judicially, or so near as to interfere with the orderly course of
procedure. Indirect or constructive contempts are such as are not
committed in the presence of the court, but which tend by their opera-
tion to interrupt, obstruct, embarrass, or prevent the due and orderly
administration of justice.
Direct contempts, committed in the presence of the court, are pun-
ishable summarily ; that is, in such a case, the court may, upon its own
knowledge of the facts, without further proof, without issue or trial,
and without hearing any explanation of the motives of the offender,
immediately proceed to determine whether "the facts justify punish-
ment, and to inflict such punishment therefor as the law allows.*^^
But when the contempt is constructive or indirect only, the proper
course is to issue an attachment against the respondent to bring him
into court, or a rule upon him to show cause why an attachment should
not issue. The facts are then brought out by affidavits, or he may
be examined on interrogatories. He has a right to be heard, and to
present evidence in his defense. But he cannot claim a trial by jury;
the court itself determines the question of contempt and punish-
ment.*'*
Erroneous Judgments,
The mere fact that a judgment rendered against a person, when
the court had jurisdiction, is irregular (without being void) or is er-
2TT Ex parte Terry, 128 U. S. 289, 9 Sup. Ct. 77, 32 L. Ed. 405; Watt v.
Llgertwood, L. R. 2 H. L. Sc 361 ; Middlebrook v. State, 43 Conn. 257, 21 Am.
Rep. 650 ; Wyatt v. People, 17 Colo. 252, 28 Pac. 961 ; Hammond Packing Co.
T. State, 81 Ark. 519, 100 S. W. 407, 126 Am. St Rep. 1047 ; Commonwealth y.
Gibbons, 9 Pa. Super. Ct 527. See People y. Leublscher, 23 Misc. Bep. 495,
51 N. y. Supp. 735. See "Constitutional Law,** Deo, Dig, (Key No,) | tlS;
Cent. Dig, | 739.
«T8 state y. Matthews, 37 N. H. 450; State y. Doty, 32 N. J. Law, 408, 90
Am. Dec. 671 ; In re Judson, 3 Blatchf. 148, Fed. Cas. No. 7.563 ; United States
y. Dodge, 2 Gall. 313, Fed. Cas. No. 14,975; Ex parte Strieker (C. C.) 109
Fed. 145 ; State y. Shepherd, 177 Mo. 205, 76 S. W. 79, 99 Am. St Rep. 624 ;
Smith y. Speed, 11 Okl. 95, 66 Pac. 511, 55 L. R. A. 402 ; Flannery y. Pe<H>le,
225 III. 62, 80 N. E. 60 ; In re Lance, 55 Misc. Rep. 13, 106 N. Y. Supp. 211 ;
In re Consolidated Rendering Co., 80 Vt 55, 66 Atl. 790 ; Hohenadel y. Steele,
237 111. 229, 86 N. E. 717 ; Hoyey y. Elliott, 167 U. S. 409, 17 Sup. Ct 841, 42
L. Ed. 215. See **ConstitutionaZ Law,** Dec. Dig. (Key No.) ff 267, 27S, S^S;
Cent. Dig. if 799, 75i, 9SS; ''Jury,** Dec. Dig, (Key No.) §S IS, 21; Cent, Dig,
U 6S, 1S9.
§ 224) DUB PROCESS OF LAW IN ADMINISTRATION. 595
roneous in point of law, will not justify him in asserting that due
process of law has been denied to him. When the legislature of a
state enacts laws for the government of its courts while exercising
their respective jurisdictions, which, if followed, will furnish parties
the necessary constitutional protection of life, liberty, and property,
it has performed its constitutional duty. And if one of its courts,
acting within its jurisdiction, makes an erroneous decision in this
respect, the state cannot bfe deemed guilty of violating the consti-
tutional provision.*'*
DUE PROCESS OF I.AW IIT ADBONISTBATIVE PBO-
OEEDIHOS.
224. The eonstltiatlonal requirement of due proeess of law eztemds to
administratiTe and ezeentlTe prooeedinffs as well ae to Jvdieial
aetioi&y and f orMds pvbUe ofieers to deprive persona of their
liberty or property by arbitrary or niilawf nl action* or without
an opportunity for a hearing and defense either before sneh of-
ILeers themselves or on appeal to the eonrts*
The constitutional provision under consideration extends to every
officer, board, or commission to which the legislature has delegated
functions involving the exercise of judgment and discretion of a
judicial nature, affecting individuals and property rights, and gen-
erally to the action of any person who, by virtue of his public posi-
tion under a state government and as acting for and representing the
state, is clothed with power to deprive another of his liberty or prop-
erty.*"* As applied to the chief executive officers of the federal and
«T» Howard v. Kentucky, 200 U. S. 164, 26 Sup. Ct 189, 50 L. Ed. 421 ;
Backus V. Fort St Union Depot CJo., 169 U. S. 657, 18 Sup. Ct. 445, 42 L. Ed.
853 ; In re Converse, 137 U. S. 624, 11 Sup. Ct. 191, 34 L. Ed. 796 ; CaldweH
y. Texas, 137 U. S. 691, 11 Sup. Ct 224, 34 L. Ed. 816; Arrowsmith y. Harmon-
Ing, 118 tJ. S. 194, 6 Sup. Ct. 1023, 30 L. Ed. 243 ; Bonner y. Gorman, 213 U.
S. 86, 29 Sup. Ct 483, 53 L. Ed. 709. See ^Vonatitutional Law," Dec. Dig. (Key
No.) §i 256-272, S04-S17; Cent. Dig. S§ 7i6-761, 925-949.
a «o Chicago, B. & Q. IL Co. y. Chicago, 166 U. S. 226, 17 Sup. Ct 581, 41
L. Ed. 979; Raymond y. Chicago Union Traction Co., 207 U. S. 20, 28 Sup.
Ot 7, 62 L. Ed. 78; Ex parte Virginia, 100 U. S. 839, 25 L. Ed. 676; Stuart
y. Palmer, 74 N. Y. 183, 30 Am. Rep. 289 ; In re Cnrran, 38 N. Y. App. Diy.
82, 55 N. Y. Supp. 1018. Since the prohibition of the fourteenth amendment
is addressed to "any state,** it may, as above stated, include any public officer
who for the time being represents the state, but it has no application to in-
596 CIYIL RIGHTS AND THEIB PROTBCTION. (Ch. 18
State governments, municipal officers, heads of bureaus or depart-
ments, revenue and tax commissioners or boards, boards of health,
and the like, the constitution forbids them to deprive any citizen of
his property or rights in any arbitrary, unjust, or confiscatory man-
ner,* •* or in any proceeding to which he is not a party, although, if
he has proper notice, the constitutional requirement is satisfied by
giving him a full and fair opportunity to be heard in his own behalf
and in defense of his rights or property, either in the proceeding be-
fore the board or officer,*** or else on an appeal to the courts, to which
he shall be entitled as of right and without onerous restrictions or
conditions.***
PROTECTIOH OF VESTED BZOHT8.
225. Vested risHte ave to he eeewed maatd proteeted by tlie law, aad m
statute whlek divests or destroys siiek rlKhts, vniess it be by
due proeess of law, is uneonstitiational and void*
dividnals. Kleman v. Multnomah Ck>tint7 (CX C.) 95 Fed. 849. If, however,
it may be considered as applying to the actions of private bodies or associa-
tions, the same general requirement of notice and an opportunity to be heard
would decide the legality of the proceeding. Thus, it is held that due pro-
ceedings, based upon proper by-laws of a benevolent society, in disciplining
its members, constitute due process of law, although they may result in the
expulsion of the member and the forfeiture of property rights. Moore v. Na-
tional Council of the Knights & Ladies of Security, 65 Kan. 452, 70 Pac. 352.
See **ConsHtutiondl Law,** Dec Dig, (Key No.) | S18; Cent. Dig. | 949.
>•! Missouri, K. & T. R. Go. v. Interstate Oommerce €k>mmis8ion (G. G.) 164
Fed. 645 ; Chicago, B. & Q. R. Go. v. State, 60 Neb. 399, 69 N. W. 955. See
Weimer y. Zevely, 188 Fed. 1006, 70 C. C. ▲. 683. See Garfield ▼. U. S., 32
App. D. G. 153, as to proceedings before secretary of the interior to disbar
»n attorney. See 'Vonstitutional Law,** Deo. Dig. (Key No.) §| S18, S19; Cent.
Dig. S§ tGi, 949.
«8a United States v. Ju Toy, 198 U. S. 2.53, 25 Sup. Gt 644, 49 L. Ed. 1040;
Frank Waterhouse & Go. v. United States, 159 Fed. 876, 87 C C. A. 56 ; Hop-
kins v. Fachant, 130 Fed. 839, 65 C. a A. 1 ; United States v. Sing Tuck, 194
U. S. 161, 24 Sup. Gt. 621, 48 L. Ed. 917 ; Smith v. State Board of Medical
Examiners (Iowa) 117 N. W. 1116; In re Fenton, 58 Misc. Rep. 303, 109 N.
Y. Supp. 321 ; Lowrey v. Central Falls, 23 R. I. 354, 50 Atl. 639 ; Caldwell T.
Wilson, 121 N. C 425, 28 S. E. 554 ; Attorney General v. Jochlm, 99 Mich.
358, 58 N. W. 611, 23 L. R- A. 699, 41 Am. St Rep. 606. See 'Vonstitutional
Law,** Dee. Dig. (Key No.) | 318; Cent. Dig. I 949.
««8 Public Clearing House v. Coyne, 194 U. S. 497, 24 Sup. Gt 789, 48 L.
Ed. 1002 ; State Board of Health v. Roy. 22 R. I. 538, 48 Atl. 802. See "Con-
stitutional Law,** Dec Dig. (Key No.) f S18; Cent. Dig. ( 949.
§ S226) FBOTBCnON OF TESTED BIOHT8. 697
Definition of Vested Rights.
Vested rights are rights which have so completely and definitively
accrued to or settled in a person that they are not subject to be de-
feated or canceled by the act of any other private person, and which
it is right and equitable that the government should recognize and
protect, as being lawful in themselves and settled according to the
then current rules of law, and of which the individual could not be
deprived arbitrarily without injustice, or of which he could not justly
be deprived otherwise than by the established methods of procedure
and for the public welfare.*** Vested rights arc not generally pro-
vided for in the constitutions specifically and by name. But they
are protected against unjust laws divesting them by those constitu-
tional clauses which require due process of law when one is to be
deprived of his property, those which regulate the exercise of the
power of eminent domain, and others of similar character.*'* But
there can be po such thing as a vested right in a public law, which
is not in the nature of a grant, and the legislature may repeal all laws
which are not in the nature of contracts or private grants. But the
repeal of a law will not be permitted in any case to affect or impair
rights which have been acquired under it.***
Estates and Interests in Real Property.
The nature and tenure of estates is to a considerable d^^ree sub-
ject to the control of the legislature, and may be changed as the pub-
st4 Black, Law Diet s. t. And see Pennie y. Reis, 182 U. S. 464, 10 Sup.
Ct 149, 83 L. Dd. 426; Haney y. Gartin (Tex. Ciy. App.) 118 8. W. 166. The
term "vested rights" Is properly restricted to those things In which prop-
erty may be said to exist For example, no one can have a vested right to
have another sent to an Insane asylum. Grlnky y. Wayne Probate Judge,
187 Midi. 49, 100 N. W. 171. Again, It Is properly confined to rights of a
prlyate or Indlyldual nature. Thi», no citizen has any yested right In or to
the revoiaes of a county or to their application or expenditure in a particular
way or for a particular purpose. McSurely y. McGrew (Iowa) 118 N. W. 415.
See ^^Constitutional Law," Dec. Dig. (Key No.) |§ Bt-llt; Oeni. Dig. %\ 11k-
270.
»• Moore y. State, 48 N. J. Law, 208, 248, 89 Am. Rep. 558; Denny y.
Mattoon, 2 Allen (Mass.) 861, 79 Am. Dec. 784 ; Fayerweather y. Dickinson, 2
Allen (Mass.) 885 ; Peerce y. Kitzmlller. 19 W. Va. 564 ; Bender y. Crawford,
38 Tex. 745, 7 Am. Rep. 270. See "Constitutional Law,** Deo. Dig. (Key No.)
II 278-281; Cent. Dig. » 763-824, 877-890.
*•• Dobbins y. First Nat Bank of Peoria, 112 lU. 568; Markti y. Phillips,
5 Ind. 510; Webster y. Auditor General, 121 Mich. 668, 80 N. W. 706. For
example, a municipal ordinance requiring all buildings of certain classes.
598 CIVIL BIGHTS AND THfiSIB PROTECTION. (Ch. 18
lie policy or interests may require, provided only that vested interests
in property be not made less beneficial by such changes. Thus there
is no constitutional objection to a statute making joint heirs tenants
in common, even as to estates already vested at the time of its enact-
ment.**^ And so of a statute validating existing mortgages,*** and
one forbidding the cutting off of estates in remainder by deed of feoff-
ment with livery of seisin.*** And a naked legal title to land is not
a vested interest such as will be protected from retrospective legis-
lation intended to divest it.**® But an attempt to tax the right of suc-
cession in the. case of remainders already vested is unconstitutional
as diminishing the value of vested estates.*** And so is a statute
declaring that the owners of lands bordering on a non-navigable lake
shall be owners in common of the bed of the lake, because their vested
titles are to the center of the bed in severalty.*** Again, laws re-
lating to judicial sales or tax sales made before their enactment, are
unconstitutional for this reason if they either extend the time allowed
for redemption or add new conditions to the right of redemption more
burdensome than those existing when the sale was made.***
Rules of Descent.
It is an ancient maxim of the law that no man is heir to the living.
So long, therefore, as a man retains the power to dispose of his prop-
whether erected before or after the passage of the ordinance, to be equipped
with a particular kind of fire escape, Is not unconstitutional or In violation
of vested rights as applied to the owner of a building previously erected,
though he had complied with the fire escape ordinance in force at the time
he built Seattle v. Hinckley, 40 Wash. 468, 82 Pac. 747, 2 L. R. A. (N. S.)
398. See *'Coi\stitutional Law'' Dec, Dig, (Key No,) { 92; Cent, Dig, % 115.
28T Stevenson v. CJoflferln, 20 N. H. 150; Miller v. Dennett, 6 N. H. 109;
Annable v. Patch, 8 Pick. (Mass.) 360. 8ee "Constitutional Law,** Dec. Dig,
(Key No.) S 93; Cent. Dig, § 182,
288 McFaddln v. E3vans-Snlder-Buel Co., 185 U. S. 503, 22 Sup. Ct 758» 46
L. Ed. 1012. See '^Constitutional Law," Dec, Dig. (Key No.) | 99; Cent, Dig.
%185.
s8» People's Loan ft Exchange Bank ▼. Garllngton, 54 S. G. 413, 32 S* B.
513, 71 Am. St Rep. 800. See ^'Constitutional Law,*' Dec. Dig, (Key No.) § 9S;
Cent, Dig. { 18 1.
soo Diamond State Iron Ck>. v. Husbands, 8 Del. Ch. 205, 68 Atl. 240. See
''Constitutional Law," Dec. Dig, (Key No,) § 9S.
SOI In re Pell's Estate, 171 N. Y. 48, 63 N. E. 780, 57 L. R. A. 540, 89 Am.
St Rep. 791. See "Comtitutional Law,** Dec, Dig. (Key No,) § 93.
«•! Shell V. Matteson, 81 Minn. 38, 83 N. W. 491. See "Constitutional Law,**
Dec, Dig, (Key No,) § 93.
>•• Welsh T. Cross, 146 Cal. 621, 81 Pac 229, 106 Am. St Rep. 63 ; Teralta
§ 225) PBOTEcnoN of vested rights. 599
erty as he chooses, the expectation which any other perscHi may have
of succeeding to his estate, should he die intestate, is not a vested
right, but a mere anticipation. Hence it is in the power of the legis-
lature to change the rules of descent, in respect to all estates which
have not already passed to heirs or devisees.'** Conversely, the right
of the citizen to dispose of his property by will is not a constitutional
right which the legislature cannot destroy or abridge. The right to
acquire property implies the right to dispose of it ; but these are rights
belonging to the living. As a disposition by will does not take effect
until the death of the testator, it cannot be said that a law restricting
or limiting the proportion of his property which he may bequeath away
from his natural heirs, or avoiding bequests to superstitious uses, or
the like, impairs any of his vested rights of property.***
Dower and Curtesy.
A wife's right of dower does not become vested by the marriage,
but remains an interest in expectancy until the death of the husband.
Until that time, therefore, it is not protected by the constitution, but
may be abolished by statute. And the same is true of a husband's
inchoate right of curtesy, after the marriage but before the birth of
issue. These expectant rights are not property or vested interests
in such sense as to secure them against legislative interference.***
Betterment Laws,
These are statutes which allow to a person who has held land ad-
versely in good faith the value of the improvements which he has
Land ft Water Co. y. Shaffer, 116 Cal. 518, 48 Pac. 613, 68 Am. St. Rep. 194.
But see Starks v. Sawyer (Fla.) 47 South. 513. See *'Oonstitutiondl Law,**
Dec Dig. (Key No,) { 98; Cent, Dig. { 20S,
t»« Henson v. Moore, 104 IH. 403; Wyatt y. Smith, 25 W. Va. 813; Hughes
y. Murdock, 45 La. Ann. ^5, 13 South. 182; Waugh y. Riley, 68 Ind. 482;
In re Newloye*s Estate, 142 Gal. 377, 75 Pac. 1083. See '^Constitutional Law/*
Deo. Dig. (Key No,) | 94; Cent. Dig. ff 186-189.
s«BPatton y. Patton, 39 Ohio St 590; In re Ayery's wni, 45 Misc. Rep.
529, 92 N. T. Supp. 974 ; O'Brien y. Ash, 169 Mo. 283, 69 S. W. 8. See ''Con-
stitutional Law,** Dec. Dig. (Key Vo.) | 9Jk; Cent. Dig. |{ 186-189.
«•• Thurber y. Townsend, 22 N. Y. 517; In re Curtis' Will, 61 Hun, 372, 16
N. Y. Supp. 180; McNeer y. McNeer, 142 III. 388, 32 N. E. 681, 19 L. R. A.
256; Denny y. McOai>e, 35 Ohio St 576; Chapman y. Chapman, 48 Kan. 636,
29 Pac. 1071; Brown y. Clark, 44 Mich. 309, 6 N. W. 679; Bottorff y. Lewis,
121 Iowa, 27. 95 N. W. 262; Rose y. Rose, 104 Ky. 48. 46 S. W. 524, 41 L. R.
A. 353, 84 Am. St Rep. 430 ; Bartlett y. Ball, 142 Mo. 28, 43 S. W. 783 ; Ori»-
wold y. McGee, 102 Minn. 114, 112 N. W. 1020. See '^Constitutional Law,**
Dec Dig. (Key No.) | 95; Cent. Dig. | 201,
i
*
/
600 CIYIL BIGHTS AND THEIB PROTECTION. (Ch. 18
put upon it, and grant him a lien therefor, when his supposed title
is overthrown by the real owner. They are not unconstitutional as
divesting rights or lacking the essentials of due process of law, since
they merely enforce an equitable right.* '^
Public Offices.
The incumbent of a public office created by statute has no such vested
interest or private property in it as to put it beyond the control of the
legislature. Such offices are not held by grant or contract, but are sub-
ject to abolition and to such modifications and changes as the legisla-
ture may deem it necessary or advisable to enact, unless restrained
by the constitution.***
Right to Pursue Particular Occupations.
While it may be true in a general sense that any person has a vested
right to continue in the exercise of any lawful and innocent trade or
pursuit in which he has engaged, this is not true of such occupations
as are harmful in themselves or which are so far affected with a
public interest as to require regulation under the police power. As
to such avocations the legislature may, without violating vested rights,
prescribe new qualifications or restrictions, though the effect may be
to put individuals out of business or deprive them of the benefit of
licenses already granted, as in the case of persons engaged in the
liquor traffic or in the practice of medicine or dentistry,*** or impair
the valne of property devoted to a particular use, as in the case of
breweries, markets, and slaughter houses.*** A more difficult question
s*T Robs v. Trying, 14 lU. 171. See **Constitutional Lato,** Dec Dig. (Key
yo.) f 97; Cent. Dig. f 202.
s»8 Butler v. Pennsylyanla, 10 How. 402, 13 L. Ed. 472; Ex parte Lambert,
52 Ala. 79; Ck)inmon wealth v. Weir, 165 Pa. 284, 30 Atl. 835; DaUis y. Grif-
fin, 117 Ga. 408, 48 S. E. 758; Tucker y. State, 163 Ind. 403, 71 N. B. 140;
Laliart y. Thompson (Iowa) 118 N. W. 898; State y. Eyans, 166 Mo. 347, 06
S. W. 355 ; Mlal y. Ellington, 134 N. a 131, 46 S. E. 961, 65 L. B. A. 697 ; State
y. Dahl (Wis.) 122 N. W. 74a But compare Gattis y. Griffin, 125 N. C. 332,
34 S. E. 429 ; Wood y. Bellamy, 120 N. C. 212, 27 S. E. 113. See "Conatitutional
Law,'* Dec. Dig, (Key No.) % 102; Cent. Dig. | 225.
a»» Guy y. Board of Com'rs of Cumberland County, 122 N. C 471, 29 S. E.
771 ; State y. City Council of City of CJheyenne, 7 Wyo. 417, 52 Pac 975, 40
L. R. A. 71 ; State y. Mcintosh, 205 Mo. 616, 108 S. W. 1071 ; Dayidson y.
Sadler, 23 Tex. dy. App. 600, 57 S. W. 54. See ^'Constitutional Law,** Dec.
Dig. (Key No.) §§ 88, 101; Cent. Dig. §§ m, 165, 209-211.
800 Boston Beer 0>. y. Massachusetts, 97 U. S. 25, 24 L. Ed. 989; City of
Portland y. Meyer, 32 Or. 368, 52 Pac. 21, 67 Am. St R^. 538; City <rf New
Orleans y. Faber, 105 La. 208, 29 South. 507, 53 Lu R. A. 105, 83 Am. St. Rep.
S 225) PBOTBCnOM OF ySSTSD BIGHT8. 601
arises in the case of a statute requiring licenses, registration, submis-
sion to examination, or additional qualifications for public teachers,
attorneys at law, physicians and surgeons, as applied to those who are
lawfully engaged in their respective professions at the time of its
enactment and who had previously obtained the necessary licenses,
shown the requisite qualifications, or otherwise fully complied with
the law as then existing. But it is generally held that persons so
situated have no vested right to continue in their occupations free from
further regulation by the legislature.'**
Franchises and Privileges.
These may be the subject of vested rights, no less than corporeal
property.*** But the fact that a public service corporation has fully
complied with all the statutory requirements applicable to it, at the
time of its organization or of its entering the state for the transaction
of business therein, or at the time of constructing its works, does not
give it a vested right to carry on its business subject only to the laws
then existing nor an immunity from future legislative control or from
the enactment of such subsequent regulations as the legislature may
deem to be necessary for the public welfare in the exercise of the
police power.'*' If the right of taking fish from the public waters
of the state is a franchise or privilege of citizens, it is not a vested
232. See **0<mstUutional Late,'' Dee. Dig. (Key Vo.) H 81, tlS, 296; Cent.
Dig. H 148, 778. 84i.
SOI In re Day, 181 IH. 73, 64 N. E. d46, 50 L. B. A. 519; State y. Davis, IM
Mo. 486, 92 S. W. 484, 4 L. R. A. (N. 9.) 1023 ; State v. Horvoka, 100 Minn.
249, 110 N. W. 870, 8 L. R. A. (N. S.) 1272 ; Commonwealth v. Densten, 30 Pa.
Super. Ot 631 ; State v. Board of Dental Examiners, 26 Obio Cir. Ct R. 369 ;
In re Stebbins, 41 App. Dlv. 269, 58 N. T. Supp. 468. Contra, In re AppHca-
tlona for Admission to Practice, 14 S. D. 429, 85 N. W. 992. See *'Con9titih
tional Law,** Dec. Dig. (Key Ko.) |§ 99, 101; Cent. Dig. H 176-224.
*ot Lewis r. Pennsylvania R. Co., 220 Pa. 317, 69 Atl. 821, 18 L. R. A. (N.
S.) 279 ; Northwestern Tel. Exch. Co. r. Anderson, 12 N. D. 586, 98 N. W. 706,
65 L. R. A. 771, 102 Am. St. Rep. 580 ; Walbridge v. Board of Com'rs of Rus-
sell County, 74 Kan. 341, 86 Pac. 473; Louisville ft T. Turnpike Road Co. v.
Boss, 44 S. W. 981, 19 Ky. Law Rep. 1954. See "^Constitutional Law,** Deo.
Dig. (Key No.) § 101; Cent. Dig. H 200-211.
sot Adams Express Co. v. State, 161 Ind. 828, 67 N. E. 1038; Erb v. Mo-
rasch, 8 Kan. App. 61» 64 Pac. 323 ; Snouffer v. Cedar Rapids ft M. City Ry.
Co.. 118 Iowa, 287, 92 N. W. 79 ; Weed v. Common Council of City of Bing-
hamton, 26 Misc. Rep. 208, 56 N. Y. Supp. 105. See **Con9titutional Law^'* Dec
Dig. (Key No.) ^ 101 j Cent. Dig. §| 209-Zll.
602 CIVIL BIGHTS AND THEIB PBOTECTIOM. (Ch. 18
right in such sense that the legislature cannot restrict it or forbid
wasteful or destructive methods of fishing.'**
Rights of Action and Defenses.
A cause of action, accruing at comm(»i law or by a contract, which
is fixed and settled in a particular person, and continues in force, is
a vested right within the protection of the constitutions. It is prop-
erty, and it cannot lawfully be divested by legislative interference, or
by taking away the legal means of making it effective, or by so ham-
pering it with conditions or restrictions as to render it practically
worthless.*®' But this principle does not apply to a right of action of
purely statutory origin, not afforded by the common law, such as the
right to recover money paid on a gambling contract.*** A vested
right to an existing defense is also under the protection of the law,
save only as to those based on mere informalities or irregularities or
on technicalities not affecting the substantial rights of the parties.**^
Remedies and Procedure.
No one can be said to have a vested right in any particular remedy
for the enforcement of his rights or the redress of injuries done him.
Remedies and remedial rights and process are always subject to the
control of the legislature. It would not be competent to deny all
remedy. But subject to this limitation, the state may substitute one
remedy for another, or change modes of procedure, or alter the sys-
tem of courts, as public policy may seem to require. A man with a
fixed right of action may be said to have a vested right to a remedy,
but not to that particular form of remedy which was available when
304 Erans y. United States, 81 App. D. 0. 544. Bee **Con8tituHonal Law,**
Dec, Dig. (Key No.) { 101.
•05 Cornell v. Hlchens, 11 Wis. 358 ; Diinlap v. Toledo, A. A. & G. T. R.
CJo., 50 Mich. 470, 15 N. W. 555; Relyea v. Tomahawk Pnlp & Paper Co., 102
Wis. 301, 78 N. W. 412, 72 Am. St Rep. 878 ; McCann v. City of New York,
62 App. Dlv. 358, 65 N. Y. Supp. 808. See "Constitutional Law,** Deo. Dig.
(Key No.) | 105; Cent. Dig. |§ 228-23.').
soo Yeomans v. Heath, 185 Mass. 189, 70 N. E. 1114; Wilson t. Head, 184
Mass. 515, 60 N. B. 817. See **Consiitutional Law,** Dec. Dig. (Key No.) §§ 105,
106; Cent. Dig. §§ 228-245, 252-259.
«0T Tlfft V. City of Buffalo, 82 N. Y. 204 ; Merchants* Nat Bank of St Paul
T. City of East Grand Forks, 04 Minn. 246, 102 N. W. 708 ; Farnsworth Loan
ft Realty Co. v. Commonwealth Title Ins. ft Trust Co., 84 Minn. 62, 86 N. W.
877; Baltimore ft O. S. W. R. Co. v. Reed, 158 Ind. 25, 62 N. B. 488, 56 L. R.
A. 468, 92 Am. St Rep. 293. Bee **Con8titutional Law.** Deo. Dig. (Key NoJ
I 105; Cent. Dig. |§ 228-235.
§ 225) PROTECTION OF TESTED BIOHT8. 603
his cause of action accrued.*®* But the right to a particular remedy
may become fixed by the agreement of the parties, or by the attaching
of a lien under it, in such a way as to be beyond the control of the
legislature. For example, a right to foreclose, pursuant to the statute
in force at the time of the execution of a mortgage, under the power
of sale contained in it, cannot be taken away by subsequent legisla-
tion.'®* Such may also be the case with regard to a statutory lien.**®
Unless guarantied by- the constitution, no one can be said to have a
vested right to take an appeal or prosecute a writ of error or to have
a new trial.*** And the converse of the main rule is equally true.
That is, if there is a right or cause of action in existence, for which
the law has provided no remedy or an inadequate remedy, the party
against whom the right or cause of action avails has no vested right
to have the law continue as it is, and he cannot complain if a subse*
quent statute provides a new, additional, or more effective remedy.***
Statutes of Limitation,
Vested rights may be lost by the negligence or indifference of the
owner. All the states have enacted statutes of limitation, by which
it is provided that actions for the enforcement of rights or the redress
•osoimpbell r. Iron-Silver Min. Co., 83 Fed. 643, 27 G. C A. 646; People
r. Richmond, 16 Colo. 274, 26 Pac. 929 ; Shelley v. Wescott, 23 App. D. C. 135 ;
Boise Irrigation & Land Co. v. Stewart, 10 Idaho, 88, 77 Pac. 25 ; Chicago &
W. I. R. Co. y. Quthrie, 192 111. 679, 61 N. E. 658 ; Richardson v. Akin, 87 111.
138 ; Leavenworth Coal Co. v. Barber, 47 Kan. 29, 27 Pac. 114 ; Cusic v. Dong-
las, 3 Kan. 123, 87 Am. Dec 458 ; RoHina v. Love, 97 N. C. 210, 2 8. E. 166 ;
Shickell v. BerryYtile Land & Improvement Co., 99 Va. 88, 37 S. E. 813. See
^'Constitutional Law," Dec. Dig. (Key No.) % 106; Cent. Dig. §§ 238-259.
••• O^Brlen v. Krenz, 36 Minn. 136^ 30 N. W. 458. Bee ^'Constitutional Law,*'
Dec. Dig. (Key No.) | 106; Cent. Dig. H 2S&-259.
•10 See Waters v. Dixie Lumber dt Manufacturing Co., 106 Qa. 592, 32 S. E.
636, 71 Am. St Rep. 2S1 ; Bailey r. Mason, 4 Minn. 546 (Oil. 430) ; Oameau
y. Port Blakely Mill Co., 8 Wash. 467, 36 Pac. 463; Murphy v. Beard, 138
Ind. 560, 38 N. E. 33. See ^'Constitutional Law;* Dec. Dig. (Key No.) | 106;
Cent. Dig. H 288-259.
•11 People T. Board of Comers of Cook County, 176 TIL 576, 52 N. E. 334 ;
Lake Erie ft W. Ry. Co. y. Watkins, 157 Ind. 600, 62 N. E. 443; Zellars y.
National Surety Co., 210 Mo. 86, 108 S. W. 548 ; City of St. Louis y. Marchel,
99 Mo. 475, 12 S. W. 1050 ; Johnson y. Smith, 78 V t 145, 62 Ati. 9, 2 L. R.
A. (N. S.) 1000. See ^'Constitutional Law,*' Deo. Dig. (Key No.) § 111; Cent.
Dig. (I 267-269.
•IS League y. Texas, 184 U. S. 156, 22 Sup. Ct 475, 46 Ia Ed. 478; Oampbell
y. Holt, 115 U. B. 620, 6 Sup. Ct 209, 29 L. Ed. 488 ; Conyerse y. Ayer, 197
MtJUL 443, 84 N. E. 9S; Hope y. Johnson, 2 Yerg. C^enn.) 123; Town of Dan-
604 CIVIL RIQHTS AND THBIB PROTECTION. (Ch. 18
of injuries must be instituted within a certain time or else be forever
barred. Any statute of limitations must afford an opportunity to bring
an action within a reasonable time. Rights cannot be cut off arbi-
trarily.'** But if this condition is satisfied, the negligent or slothful
suitor, when confronted with the bar of the statute of limitations,
cannot complain that he is unjustly deprived of his vested rights.*^*
On the contrary, the right to plead the statute as a defense becomes
a vested right which cannot be interfered with or destroyed by re-
viving the cause of action,*** at least in cases where the title to prop-
erty has vested under the statute,*** though it is held that where the
demand is for a personal debt or on a contract, or in any class of ac-
tions where the statute merely gives a defense without vesting prop-
erty, there is no vested right to such mere defense, and the repeal or
enlargement of the statute would not be unconstitutional as applied
to a cause of action of this character, though it was already barred.**^
Rules of Evidence.
In criminal prosecutions, as we shall presently see, the accused has
a right to be tried by the rules of evidence in force at the time of the
commission of the alleged offense, or, at least, to be exempt from the
retroactive operation of any statute which would change the rules
of evidence to his disadvantage, as by making less or different evidence
sufficient to convict him. But, in civil issues, the rules of evidence are
TiUe T. Pace, 25 Grat (Ya.) 1, 18 Am. Rep. 663. Bee **Con8titutional Law,**
Dec. Dig, (Key No.) | 106; Cent. Dig. ft 212, 2S8-259.
31 s Chapman r. Douglas County, 107 U. S. 34S, 2 Snp. Ct 62, 27 L. Ed. 878;
Moody y. Hosklns, 64 Miss. 468, 1 South. 622. See '^Conatitutional Late,'* Dec
Dig. (Key No.) f 107; Cent. Dig. §$ 2^6-251.
si«Qniterman v. Wlshon, 21 Mont. 458, 54 Pac. 566; Rodebaugh y. Phila-
delphia Traction Co., 190 Pa. 358, 42 Ati. 953. See *'ConstUutional Law,** Deo.
Dig. (Key No.) | lOt; Cent. Dig. §f 246-251.
S16 EdelBteln v. Carme, 33 Colo. 54, 78 Pac. 680; Lawrence v. City of Louis-
ville, 96 Ky. 595y 29 S. W. 450, 27 L. R. A. 560, 49 Am. St. Rep. 309 ; Ireland
V. Mackintosh, 22 Utah, 296, 61 Pnc. 901 ; Eingartner t. Illinois Steel Co., 103
Wis. 373, 79 N. W. 433, 74 Am. St. Rep. 871. See ^'ConntituHonal Lau>;* Dec.
Dig. (Key No.) f 107; Cent. Dig. |$ 246-251.
8ie Power v. Telford, 60 Miss. 195; McEldowney v. Wyatt, 44 W. Va. 711,
30 S. E. 239, 45 L. R. A. 609. See Scales v. Doe ex dem. Otts, 127 Ala. 582, 29
South. 63. See ^^Constitutional Law,** Dec. Dig. (Key No.) § 107; Cent. Diif.
%% 246-251.
sir CampbeU T. Holt, 115 U. 8. 620, 6 Sup. Ct 209, 29 L. Ed. 483; McEl-
downey V. Wyatt, 44 W. Va. 711, 30 S. E. 239, 45 L. R, A. 609. See **0on8ti
tutional Law,** Dec Dig. (Key No.) i 107; Cent. Dig. i| 246-251.
§ 225) PBOTSonoH of tbstbd biohts. 605
not grants of a right from the state to the private suitor, nor are they
property in which any person can have a vested right. They arc a
part of the substantive law of the state, and the legislature has the
power to make such rules, or to modify or repeal those already exist-
ing, and make them applicable to pending controversies, subject only
to such specific restrictions as may be found in the constitution.'^"
But still it is possible to frame rules of evidence which would indi-
rectly cut off vested rights, by making it impossible for the owner to
secure their recognition or enforcement by the courts; and this, of
course, would be constitutionally inadmissible. Such would be the
case with a statute making tax deeds conclusive evidence of good title
in the tax purchaser.*^*
Judgments.
It cannot be said that the mere rendition of a judgment gives the
successful party a vested right to insist that it shall not be subject to
review or re-examination otherwise than in accordance with the law
in force at the time.'** Yet a judgment, final or not appealed from,
is a vested right of property in such sense that the legislature cannot
destroy or diminish its value or deprive the owner of the fruits of
it*"
Penalties and Forfeitures.
Though all the conditions may be satisfied which entitle a person
to recover a statutory penalty (such as exemplary damages, three-fold
»!• Soathem Ry. Co. y. Tift, 148 Fed. 1021, 79 G. C A. 536; Mallery y. Prye,
21 App. D. G. 105 ; Campbell y. Skinner Mf & Go., 53 FitL. 632, 48 South. 874 ;
Wheelock y. Myers, 64 Kan. 47, 67 Pac. 632; State y. Kline, 60 Or. 426, 03
Pac. 237 ; State y. Weston, 3 Ohio Dec. 15 ; Haney y. Gartin (Tex. Civ. App.)
113 S. W. 166; Ariola y. Newman (Tex. Ciy. App.) 118 S. W. 157; McKin-
stry y. Collins, 76 Vt. 221, 56 Atl. 985; In re McNaughton's Will, 138 Wis. 179,
118 N. W. 997 ; Sandben? y. State, 118 Wis. 578. 89 N. W. 604; Downs y. Blount,
170 Fed. 15, 95 C. C. A. 289. Bee "Constitutional Law,"* Dec. Dig. (Key No.) §
109; Cent Dig, %% 260-26S.
«!• Kelly y. Herrall (G. G.) 20 Fed. 364; Ensign y. Barse, 107 N. T. 329, 14
N. E. 400; McCready y. Sexton, 29 Iowa, 856, 4 Am. Rep. 214; Wilson y.
Wood, 10 Okl. 279, 61 Pac. 1045. See "Constitutional Law,** Dec. Dig. (Key
No.) I 109; Cent. Dig. U 260-263.
•20 Stephens y. Cherokee Nation, 174 U. S. 445, 19 Sup. Ct 722, 48 L. Ed.
1041. See "Constitutional Law,** Dec. Dig. (Key No.) || 110, HI; Cent. Dig.
H 264-269.
SSI Village of New Holland y. Holland, 99 111. App. 251 ; Chiles t. School
Dist of Bnckner, 103 Mo. Aih>. 240, 77 S. W. 82; Merchants* Bank of Dan-
yUle y. Ballon, 98 Va. 112, 82 S. E. 481, 44 L. B. A. 306, 81 Am. St Rep. 715.
«
r
• .f
I
»
6M CIVIL RIGHTS AND THEIR PROTECTION. (Ch. 18
interest on an usurious contract, or the informer's share in a qui tarn
action) he has no vested right in the penalty until it is enforced, or at
least until the recovery of a final judgment for it; before that, his
rights may be destroyed by a repealing statute.'**
SEARCHES AHD SEIZXJIIES.
226. The f oiurtli ameadmeiit to the federal eonstitiation provides that
'Hhe rlcht of the people to be eeenre ia their pereone, h^pyeee,
papeffii wmk egeete, asaiaurt unreasonable searehesSSId seisnres,
■hall not be Tiolated, and no warrants shall issne bnt npon
' V probable eavse, supported by oath or aiErmation, and partien-
larly deseribinc the plaee to be searched and the persons or
^ (i thins* to be seised.** And in all the states a similar gnaranty
has been n&adc a part of the orsAnic lavr,
227. These constitutional prorisions protect the citisen asainst—
(a) All nnanthorised intrusion into his dwelling house by offtcers or
others claiming to act under the authority of the law.
Cb) The search of his person or clothing:, except when he is lawfully
under arrest or charged with crime.
. Co) The oomipulsory production of his boohs and papers to be used as
CTidence against himu
(d) The unlicensed examination of the contents of letters or sealed
pachages intrusted by hiuL to the goTcmment for transmission
through the mails*
(e) The search of his house for speoiflo property alleged to be there-
in, in aid of the enf orcemient of the criminal laws or police reg-
ulations, except it be under the authority of a search warrant
lawfully issued, and complying with all constitutional and
statutory requirements*
Constitutional Provisions.
The fourth amendment to the constitution of the United States
does not extend to the state governments nor apply to proceedings in
the state courts, but is a restriction only on the legislature and judiciary
&ee Tucker r. State, 163 Ind. 408, 71 N. E. 140. See '^Constitutional Law,**
Dec. Dig. (Key No.) §§ 110, 111; Cent'. Dig. {§ 26.f,-269.
st« Oonflscatlon Cases, 7 Wall. 454, 19 U Ed. 196 ; United States v. Tynen,
11 Wall. 88, 20 li. Ed. 153 ; President, etc., of Oriental Bank v. Freeze, 18 Me.
109, 36 Am. Dec. 701 ; Anderson v. Byrnes, 122 Cal. 272, 54 Pac. 821 ; Atwood
y. Buckingham, 78 Conn. 423, 62 Atl. 616 ; Pierce v. Kimball, 9 Me. 54, 23 Am.
Dec. 537; Fire Department of West Troy v. Ogden, 59 How. Prac. (N. Y.) 21;
Davidson v. Witthaus, 106 App. Dlv. 182, 94 N. Y. Supp. 428; Parmelee v.
Lawrence, 44 111. 406 ; Bank of St. Mary's v. State, 12 Ga. 475^ See "Consti-
tutional Lato;' Deo. Dig. (Key No.) § 104; Cent. Dig. §§ 177, 2S3.
§§ 226-227) 8EABCHE8 AKD SEIZURES. 607
of the Union.'** So far as it extends, however, its benefits arc not
confined to the citizens of the United States, but may be invoked in
behalf of a resident alien.**^ But similar guaranties have been incor-
porated in the constitutions of all the states. They are to be under-
stood as a limitation upon the power of the state and its officers to
make searches and seizures for its own benefit, but have no reference
to the unauthorized acts of individuals.***
Security of the Dwelling. ^v '^
It was the boast of the English common law that "every man's \
house is his castle/' In the familiar words of Chatham, "the poorest
man may, in his cottage, bid defiance to all the forces of the crown.
It may be frail ; its roof may shake ; the wind may blow through it ;
the storm may enter ; the rain may enter ; but the king of England
may not enter ; all his force dares not cross the threshold of the ruined
tenement." Nor was this conception of the sanctity of the private
dwelling known only to the ancient law of our parent country. In
the imperial law of ^ome it was expressed in the noble maxim, "Do-
mus sua cuique est tutissimum refugium," and in the correlative rule,
"Nemo de domo sua extrahi potest." Such, therefore, is the jealous
care with which the law protects the privacy of the home, that the
owner may close his doors against all unlicensed entry and defend the
possession and occupancy of his house against the intruder by the em-
ployment of whatever force may be needed to secure his privacy, even,
in extreme cases, to the taking of life itself. A man assaulted in his
own dwelling is not obliged to "flee to the wall," but he may defend
his home, which is his castle of refuge, to any and all extremities.***
It will therefore be seen that the right of security in the dwelling,
>2a People y. Adams, 176 N. T. 351, 68 N. E. 636, 63 L. R. A. 406, 98 Am.
St. Rep. 675 ; Hammond Packing Co. v. State, 81 Ark. 519. 100 S. W. 407. 126
Am. St. Rep. 1047 : Reed t. Rice. 2 J. J. Marsh. (Ky.) 45, 19 Am. Dec. 122. See
**S€arch€9 and Seizures,'* Dec, Dig, (Key No,) § 7; Cent, Dig, { 5,
»»4 United States v. Wong Qaong Wong (D. C.) 94 Fed. 832. Bee **8earch€S
and Seizures,** Dec, Dig. (Key Xo,) § 7; Cent. Dig, { 5,
«SB Bacon t. United States, 97 Fed. 35, 88 C. G. A. 37; Imboden ▼. People,
40 Colo. 142, 90 Pac. 60& See **Searche8 and Seizures^** Dec. Dig. (Key No,)
i 7; Cent, Dig, { 5.
sse Estep v. Commonwealth, 86 Ky. 39, 4 S. W. 820, 9 Am. St Rep. 260;
State r. Peacock, 40 Ohio St 333; People y. Dann, 53 Mich. 490, 19 N. W.
169, 51 Am. Rep. 151. See **A98ault and Battery,** Dec, Dig, (Key No.) |S 15,
69; Cent, Dig. H lS-15, 99-101; ''Homicide,** Dec Dig. (Key No.) || 12S, m;
Cent. Dig. \% ISt-lBS.
G08 CSnh RIGHTS AMD THSIB PBOTBCTION. (Ch. 18
justly esteemed one of the most iiiqx>rtant of civil rights, vras not
created by and did not depend upon the constitution, but existed long
before, and was merely guarantied and secured by that instrument*'^
And although the constitutional provisions relate only to the privilege
of the domicile against unreasonable searches and seizures, yet, if
there be any other way in which the lawful rights of the dwelling may
be invaded, it is adequately forbidden and punished by the common
law.
When an Entry may be Farced.
The privacy of the dwelling it not to stand in the way of the due
execution of the laws, nor is a man's house a sanctuary for those who
are amenable to the criminal justice of the state. An entryiinto a
private house may be forced by the officers of the law for the purpose
of capturing a felon, or in order to arrest a person, known ^o be in
hiding there, for treason, felony, or breach of the peace, /f^in, the
house may be entered, and the owner evicted, when he is no longer
entitled to hold the possession of the property, that right having passed
to another by law ; when it become».iiecessary to destroy the building
in order to prevent the spread of a conflagration ; *'* and when it is
necessary to examine into the sanitary conditions of the house, or
to remove or quarantine a person lying sick therein of a dangerous
contagious disease.*^* But with these exceptions, the only manner
SS7 n. S. V. Crosby, 1 Hughes, 448, Fed. Cas. No. 14,893. No amount of In-
criminating evidence will Jusfffy the search of a residence for stolen goods,
without a warrant McQurg v. Brenton, 123 Iowa, 368, 98 N. W. 881, 65 L.
R. A. 519, 101 Am. 8t Rep. 323. The house occupied by a social club, for club
purposes, stands on much the same footing as the private residence of an in-
dividual. Police officers have no right to enter such a club house, except with
, a warrant authorizing them to do so^ or unless in immediate pursuit of a flee-
ing criminal or on a call of danger from some one within. Devlin ▼. McAdoo,
49 Misc. Rep. 57, 90 N. T. Supp. 425. Bee **8ear6he$ and Beizuree,** Dec. Dig.
(Key No.) I 7; Cent. Dig. % 5.
S3* A house in a town may be pulled down and removed, to arrest the
spread of a fire, where it is inevitable that the house will take fire and be
consumed if it Is permitted to stand, and it is inevitable that, if it takes fire
and is consumed, it will spread the fire to other houses. Beach v. Trudgain,
2 Qrat (Ya.) 219; Surocco ▼. Qeary, 3 GaL 69, 58 Am. Dec 385; Stone y.
City of New York, 25 Wend. (N. Y.) 157. Bee '^Constitutional Law,*' Dec Dig.
(Key No.) | S20; Cent. Dig. | 77i; **Eminent Domain,**. Dec. Dig. (Key No,)
§ 2; Cent. Dig. ^ 7.
S29 When a person sick with a dangerous contagious disease is quarantined
in his own house^ the health officers may enforce stringent regulations for the
§§ 226-227) 0BABGHE8 AMD SEIZURES. 609
in which officers can force their way into a dwelling house against
the will of the proprietor, is by the sanction and command of a search
warranty the requisites of which we shall presently consider. With
r^ard to the service of mere civil process, the rule is that the officer
may not break or force open the outer door; but if he has lawfuU]^
gained an entry into the tenement, without force, he may then break
open an inner door if he must do so in order to execute his writ.***
Right to Search the Person.
Police officers may search the person of one lawfully under arrest
or seized while resisting a lawful arrest or while engaged in the com-
mission of a crime or endeavoring to escape, for the purpose of dis-
covering the instruments used in the commission of the crime or ar-
ticles which may be used in evidence to prove the charge on which
he is arrested*** But they have no right to arrest and search a person,
without a warrant, on mere suspicion that he is violating the law, as,
for example, by carrying a deadly weapon concealed on his person.***
Compulsory Production of Papers,
It will 6^e observed that the constitutional provisions against tm-
reasonable searches and seizures apply not merely to a man's house,
but also to his person and his papers. The force and effect of this
part of the provision was fully considered in a case before the supreme
court of the United States, in regard to a clause of the customs revenue
law which authorized a federal court, in revenue cases, on motion of
the government's attorney, to require the defendant to produce in
court his private books, invoices, and papers, and directed that, if he
prevention of the spread of the disease, bnt, unless fnlly authorized by stat-
ute, they cannot take entire possession of the house and virtually turn It Into
a hospital. Spring y. Inhabitants of Hyde Park, 137 Mass. 554, 50 Am. Rep.
334 ; Brown v. Murdoch, 140 Mass. 814, 8 N. E. 208. Bee '^Health," Dec. Dig.
{Key No.) $ B4; Cent. Dig. | 87.
sso Semayne's Case, 5 Ooke, 91. And see Welmer v. Bunbury, 80 Mich. 201.
See *'Searches and Seizuren," Dec: Dig. (Key No.) | 7; Cent. Dig. % 5.
•«i Ghastang v. State, 83 Ala. 28, 3 South. 304; Smith y. Jerome, 47 Misc.
Rep. 22, 93 N. Y. Supp. 202 ; State y. Edwards, 51 W. Ya. 220, 41 S. B. 429,
50 L. R. A. 465. Bee "^ Arrest;' Dec. Dig. (Key No.) | 71; Cent. Dig. f 174.
•sa PidEett y. State, 99 6a. 12, 25 S. E. 608, 69 Am. St R^. 226; Hughes
y. State, 2 Ga. App. 29, 58 S. B. 390 ; Hughes y. Commonwealth, 19 Ky. Law
Rep. 497, 41 S. W. 294. Compare Keady y. People, 32 Colo. 57, 74 Pac. 892,
66 L. R. A. 358. Bee **8earches and Seizures;* Dec Dig. (Key No.) ^ 7; OenU
Dig. i 6.
Bi..Oozi8T.I/.(3d.Ed.>— 89
610 CIYIL BIGHTS AND THEIB PBOTBCTION. (Ch. 18
refused to do so, the allegations of the government might be taken as
confessed. It was held that it does not require an actual entry upon
premises and a physical search for and seizure of papers to constitute
an unreasonable search and seizure within the meaning of the fourth
amendment. A compulsory production of a party's private books and
papers, to be used against himself or his property in a criminal or
penal proceeding or for a forfeiture, is within the spirit and meaning
of that amendment. And it is equivalent to such compulsory produc-
tion to make the non-production of the papers a confession of the al-
legations which it is pretended they would prove.'** At the same time,
this amendment was not intended to interfere with the power of the
courts to compel the production of documentary evidence in proper
cases, and especially in mere civil suits and proceedings. Hence the
ordinary and proper use of the writ of subpoena duces tecum (or a
bill of discovery in equity) requiring the production of books and
papers is not contrary to the fourth amendment, where there is no
design to convict a person of a breach of the criminal or penal laws
on the evidence of his own records,*** Neither is there any violation
of this constitutional provision by a statute giving to tax officers the
right to examine books and papers of taxpayers for the purpose of
properly listing and assessing their taxable property.***
sss Boyd v. United States, 116 U. 9. 616, 6 Sup. Gt 524, 29 Lw Ed. 74a And
see United States v. Wong Quong Wong (D. C.) 94 Fed. 832; In re Moser, 188
Mich. 902, 101 N. W. 588. To compel the wife of a bankrupt, under examina-
tion as a witness in the bankryptcy proceedings, to disclose confidential com-
munications ntade to her by her husimnd in regard to his property, would be
contrary to the fourth amendment In re Jefferson (D. C.) 96 Fed. 826. Bee
**8earch€8 and Seizures," Dec. Dig. (Key No,) § 7; Cent. Dig. § 5.
«•« Oonsoildated Rendering Co. y. Vermont, 207 U. S. 541, 28 Sup. Ct 178,
52 L. Ed. 827 (affirming In re Oonsolldated Rendering Ck>., 80 Yt 55, 66 AtL
790) ; Hale T. Henkel, 201 U. S. 43, 26 Sup. Ct 370, 50 L. Ed. 652 ; Santa F^
Pac R. Co. y. Davidsoi) (C. C.) 149 Fed. 603 ; Anti-Kalsomine Co. y. Kent Cir-
cuit Judge, 120 Mich. 250, 79 N. W. 186 ; State y. District Court of Second
Judicial Dlst., 27 Mont 441, 71 Pac. 602, 94 Am. St. Rep. 831. But a subpoena
duces tecum may be an ''unreasonable*' search, as where it requires the offi-
cers of a corporation to produce all its correspondence, documents, and papers
from the time of its organization down to the date of the writ, and this for
the purpose of discoyerlng eyldence to conyict it of a ylolation of the anti-
trust laws. In re Hale (C. C.) 139 Fed. 496. Bee "Bearches and Beizures,'*^
Deo. Dig. (Key No.) { 7; Cent. Dig. { 5; **Witne88es,'* Dec. Dig. (Key No.) 1 16;
Cent. Dig. §§ 19-27.
3S6 Co-operatiye Building ft Loan Ass'n y. State, 156 Ind. 463, 60 N. B. 146.
And see Washington Nat Bank y. Daily, 166 Ind. 631, 77 N. B. 53; In re-
§§ 226-227) BSARCHBS AND SEIZURES. 611
Inviolability of the Mails.
The same principle which protects a man's private papers in his own
house from unreasonable search and seizure should also secure their
inviolability when he confides them to the custody of the government
for the purpose of transmission through the mails. "Letters and
sealed packages in the mail are as fully guarded from examination
and inspection, except as to their outward form and weight, as if they
were retained by the parties forwarding them in their own domiciles.
The constitutional guaranty of the right of the people to be secure in
their papers against unreasonable searches and seizures, extends to
their papers, thus closed against inspection, wherever they may be.
Whilst in the mail they can only be opened and examined under like
warrant, issued upon similar oath or affirmation, particularly describ-
ing the thing to be seized, as is required when papers are subjected to
search in one's own household. No law of congress can place in the
hands of officials connected with the postal service any authority to
invade the secrecy of letters and such sealed packages in the mail;
and all regulations adopted as to mail matter of this kind must be in
subordination to the great principle embodied in the fourth amend-
ment of the constitution." •••
General Warrants.
The proximate cause for the introduction of this provision into the
federal bill of rights was the apprehension that there might be an
abuse of official power similar to that which had disgraced the reign
of more than one English sovereign, under the system of inquisitorial
proceedings called the issue of ''general warrants." These warrants
were used principally in the case of political offenses, and directed the
arrest of the authors, printers, and publishers of obscene and seditious
libels, and the seizure of their papers. They were issued by the secre-
taries of state, and authorized the officers to search all suspected places
and seize all suspected persons. But their illegality consisted in the fact
that no individual was specially named or described, or that no specific
description of the place to be searched was given. The execution of
Ck>iirade8, 112 Mo. App. 21, 85 S. W. 150. See **Searches and Seizures,** Dec.
Dig. (Key No.) K 7 ; Cent. Dig. | 5.
•s« Ex parte JackBon, 06 U. S. 727, 733, 24 L. Ed. 877. And see U. S. t.
Eddy, 1 Biss. 227, Fed. Cas. No. 15,024 ; Hoover y. McChesney (C. a) 81 Fed.
472; United States t. Wong QuoDg Wong (D. C.) 94 Fed. 832. See "Searches
and Seizures,** Deo, Dig. (Key yo.) i 7; Cewi. Dig. i 5; ''Post Oglce,** Deo, Dig.
(Key Ko.J i 47; Oeni. Dig. i 65.
612 CIVIL BIGHTS AND THEIR PHOTBCTIOM. (Ch. 18
the warrant was therefore left very much to the caprice of the officer.
These warrants were plainly contrary to the spirit of the common law,
and in violation of private rights. And they were liable to be wielded
as instruments of tyranny in the hands of corrupt officials. Yet they
continued in use until 1763, at which time the court of king^s bench
declared that they were illegal, and allowed the recovery of damages
by those whose rights had been invaded under such warrants.**^
Search Warrants.
The constitutions do not forbid the issue of search warrants. They
only prohibit "unreasonable" searches. Generally speaking, the con-
stitutional requirements as to the issue of such warrants are only three
in number: First, no warrant shall issue but upon probable cause,
and this "probable cause" must be madle out by a sufficient showing
to the court or magistrate applied to for the warrant that such a case
exists as is contemplated by the law as proper for the use of this
writ; •*• second, the application must be supported by an oath or af-
firmation; third, the warrant must particularly describe the place to
be searched and the persons or things to be seized. But there are cer-
tain other requisites derivable from clear implications from the consti-
tution or from the general principles of law. Thus, the constitutions,
while regulating the issuance of such warrants, do not grant the power
to issue them. Consequently, no court or judge has inherent power
to grant such a writ, but it mustbe authorized by statute. Again, the
general rules of law require that such process should be executed by
an officer of the law. And, further, since this process is not final pro-
cess, but is only used as a means to some further end, it will not au-
thorize the officer executing the writ to make any final disposition of
the property which may be seized under it. Any articles so taken must
be brought before the court or magistrate, to be proceeded against
and disposed of according to law. Even stolen goods cannot be re-
•87 WilkeB T. Wood, 19 How. €t Tr. 1153, Broom, Oonst Law, 544; Leach
r. Money, 19 How. SL Tr. 1001, Broom, Const Law, 522; Entick t. Carrlng-
ton, 19 How. St. Tr. 1030; Broom, CJonst. Law, 555; 2 Story, Const. § 1002;
Pom. Const Law, § 241. See '*Searche8 and Seizures," Dec. Dig. (Key No.) |
7; Oent. Dig. | 5.
•>8 A statute which permits the issuance of a search warrant on an affi-
davit that the complainant "believes" the defendant has the former's property
unlawfully in his possession is unconstitutional, as it permits a search with-
out an affidavit that a crime has actually been committed. Llppman v. People,
175. lU. 101, 51 N. E. 872. See '*8earche9 and Seizures;' Deo. Dig. (Key No.)
§§ S, 7; Cent. Dig. || t, 5.
§§ 226-227) 0BABGHBS AND 8BIZURB8. 613
stored to their owner immediately upon their recovery by a search
warrant; and» if the property taken is claimed to have been kept or
concealed in violation of law, it cannot be forfeited or destroyed until
the facts shall have been duly ascertained according to law, and the
owner accorded an opportunity to defend.***
As a general rule, search warrants are to be employed only as an
aid in the enforcement of the criminal laws. They may be issued
for the recovery of goods alleged to have been stolen,*** for the dis-
covery of merchandise smuggled into the country and concealed to
avoid the payment of duties,**^ for intoxicating liquors kept or in-
tended for sale in violation of law,*** for instruments and apparatus
used in gambling,*** for the seizure of lottery tickets or materials for
drawing a lottery,*** and for forged warrants, writs, certificates, or
other such legal dociunents.*** But a statute authorizing the issue of
warrants, by judges of insolvency, on the complaint of an assignee,
to search for property of the debtor, is unconstitutional and void.***
Nor is this warrant ever allowed to be used solely as the means of
obtaining evidence against a person accused of crime. It is true that in
some few cases, as in the search for stolen goods, the discovery of
the article in question may furnish an item of evidence against the
possessor of it. But in all such cases, either the complainant or the
public has some interest in the property or in its destruction, and the
finding of evidence is not the immediate reason for issuing the war-
rant. But it was settled by the common law, in the cases of the "gen-
eral warrants," and has always been the understanding of the Ameri-
IB* Afl to the requisites of search warrants, see Blsh. Or. Proc. K 240-246;
Stlm. Am. St Law, § 71.
B«o stone r. Dana, 5 Mete. (Mass.) 98. See **8earohe8 and Seizures,** Dec
Dig. (Key No.) i S; Cent. Dig. | 2.
B41 Rer. St. U. S. I 3066 (XT. S. Ck>mp. St 1901, p. 200$.
B4S Fisher ▼. McGirr, 1 Gray (Mass.) 1, 61 Am. Dec. 381. See '^Searches and
Seizures,*' Dec. Dig. (Key No.) §| S, 7; Cent. Dig. || «, 5/ ^'Intoxicating Liq-
uors;* Dec. Dig. (Key No.) S§ 20, «4-*-«57; Cent. Dig. Sl 26, S6Jh996.
s«s Hastings ▼. Haug, 85 Mich. 87, 48 N. W. 294 ; 0>mmonwealth t. Gaming
Implements, 119 Mas& 332. See "Gaming,** Dee. Dig. (Key No.) § 60; Cent.
Dig. § 117.
s«« Commonwealth t. Dana, 2 Mete. (Mas&) 329; People y. Noeike, 29 Hun.
(N. Y.) 461. See ''Lotteries,** Deo. Dig. (Key No.) S 18; Cent. Dig. | 19.
•«B Langdon t. People, 183 111. 382, 24 N. B. 874. See "Searches and Sei-
gures,** Dec. Dig. (Key No.) | 7; Cent. Dig. | 5;
*«• Robinson r. Richardson, IS Gray (Mass.) 454. See **Insolvency,** Dec
Dig. (Key No.) U 39-45; O^nt. Dig. If 47-56.
614 dVUi BIGHTS AND THEIB PROTECTION. (CIl 18
can people, that this process could not be employed as a means of
gaining access to a man's house or his letters and papers for the mere
and sole purpose of securing evidence to be used against him in a
criminal or penal proceeding. Such methods would also be inconsist-
ent with the great principle of constitutional law in criminal cases that
no man shall be compelled to furnish evidence against himself. Both
of these provisions relate to the personal security of the citizen. And
when the compelling a man to be a witness against himself is the
very object of a search and seizure of his private papers, it is an "un-
reasonable" search and seizure within the meaning of the constitutional
prohibition."*^
Search Warrants in Aid of Police Regulations.
It is within the power of a state legislature, in the exercise of its
powers of police, to declare the possession of certain articles of prop-
erty (such as intoxicating liquors, explosives, obscene publications,
or gambling devices) either absolutely or in particular places and
under particular circumstances, to be unlawful, because they would
be injurious, dangerous, or noxious, and it may authorize the issue
of search warrants and the seizure and confiscation or destruction
of such articles, so it be by due process of law.**' But a law au-
thorizing the search for and seizure of liquor, which does not require
any notice of the nature and cause of the accusation to be given to the
accused, nor provide any means by which he is to be informed when,
or before whom, or where the search warrant is returnable, or for
a trial of the question of the violation of the law, is in conflict with
the constitutional guaranty and therefore void.**' And of course
the same principle, in regard to the requirement of notice and a ju-
dicial investigation, applies equally to all other cases in which search
•4T Boyd V. U. S., 116 U. S. 616, 6 Sup. Ct 524, 29 L. Ed. 746. See '*8earchcn
and Seizures,*^ Dec. Dig. (Key 'So.) § 7; Cent. Dig. | 5.
»*» Fisher v. McGirr, 1 Gray (Mass.) 1, 61 Am. Dec. 381 ; State v. Brennan*8
Liquor, 25 Conn. 278; Allen v. Staples, 6 Gray (Mass.) 491; Gray v. Kim-
ball, 42 Me. 299; Santo v. State, 2 Iowa, 165, 63 Am. Dec. 487; State v.
O'Neil, 58 Vt 140, 2 Atl. 586, 56 Am. Rep. 557 ; Jones v. Root, 6 Gray (Mass.)
435. See **8earche8 and Seizures,'* Dec. Dig. (Key No.) § 7; Cent. Dig. S 5;
''Constitutional Law,** Dec Dig. (Key NoJ § 278; Cent. Dig. | 778.
«*• Hlbbard v. People, 4 Mich. 125 ; Fisher v. McGirr, 1 Gray (Mass.) 1, 61
Am. Dec. 381 ; Greene v. James, 2 Curt 187, Fed. Gas. No. 5,766 ; State y.
Snow, 3 R. I. 64. Bee ''Searches and Seizures,** Dec Dig. (Key No.) § 7; Cent.
Dig. I 5; "Intowicating Liquors^** Dec Dig. (Key No.) §i 20, 2^-257; Cent.
Dig. H 26, Se4'^96.
§§ 226-227) 8BABOHE8 AND SBIZUBVS. 615
warrants may be authorized in pursuance of the power of police. Thus,
a statute making it illegal to maintain nets within half a mile of the
mouth of certain rivers, and providing for the confiscation of such
nets, in so far as it relates to such confiscation, is unconstitutional, if it
deprives the owner of his property without notice or service of
process.* ••
Search Warrants in Aid of Sanitary Regulations.
There are some cases in which the privacy of the dwelling must
be subordinated to the enforcement of necessary police regulations
for the preservation of the public health, particularly in populous
cities. Thus, it may be necessary to search private houses for the
purpose of inspecting their sanitary condition, or to ascertain the
existence of a nuisance detrimental to health, or to discover persons
who are affected with a dangerous disease such as threatens an epi-
demic. Such inspections are usually conducted under the orders of
the health officers, and are so seldom resisted that the question of their
legality does not appear to have come before the courts. But if an
entry into a private house could not be obtained, for such purposes,
without the employment of force, it is probable that the case would
justify the issue of a search warrant'**
Time of Execution of Warrant,
At common law, a search warrant was always directed to be ex- " ^-
ecuted by day, and it was doubtful whether it could be lawfully ex- / "
ecuted in the night time, even if no time was limited in the direc-
tion.*** But search warrants issued in aid of the enforcement of
the police or sanitary regulations of the state are not common law
warrants, but rest entirely on statute. Consequently, it is not neces-
sary to their validity that they should limit the service to the day
time.*"
•BO state ▼. Owen, 8 Ohio N. P. 181. See ^'Oonsiitutional Law,'* Deo. Dig.
(Key No,) { r/8; Cent. Dig. t 8B3.
<BiTied. lim. 464.
•Bs 2 Hale, P. G; 160. In a statute forbidding the search of a dwelling honse
In the "nighttime," this term means the space of time daring which the san
is below the horizon, except the space which precedes Its rising and follows
Its setting during which, by Its light the countenance of a man may be dis-
cerned. Petit ▼. Colmery, 4 PennewiU (Del.) 26d, 55 AtL 844. This was the
common-law definition of the "crepusculum" or twilight, as It was applied In
the law of burglary. See **Search69 and Seizures,'* Deo. Dig. (Key No,) ^ 3.
•M Commonwealth ▼• Hinds, 145 Mass. 182, 18 N. B. 887; State y. Bren-
< •
616 CIVIL BIQHTS AND THBIB PROTECTION. (Ch. 18
Military Orders.
The constitutional provision against unreasonable searches and sei-
zures cannot be understood to prohibit a search or seizure made in
attempting to execute a military order authorized by the constitution
and a law of congress, where the jury have found that the seizure
was proper and reasonable.'**
QUARTEBIHG OF SOI.DIEBS.
228* The third amendment to the federal oonstitntton proTides that
^'no soldier shall, in time of peace, he quartered in any house,
without the consent of the owner, nor in time of ^rar, hnt in
a manner to he prescrihed hy law.*' And similar provisions are
f onnd in the constitutions of many of the states.
This provision was probably suggested by a clause of the Petition
of Rights presented to Charles L, wherein it was stated that "great
companies of soldiers and mariners have been dispersed into diverse
counties of the realm, and the inhabitants against their wills have
been compelled to receive them into their houses and there to suffer
them to sojourn, against the laws and customs of this realm, and to
the great grievance and vexation of the people." Also, one of the
grievances set forth in the Declaration of Independence was the
"quartering of large bodies of armed troops among us." There has
never been any necessity for the courts to extend to individuals the
protection guarantied by this provision, and the clause is of historical
interest only. It is an additional guaranty of the security and privacy
of a man's dwelling house. "Its plain object," says Story, "is to
secure the perfect enjoyment of that great right of the common law,
that a man's house shall be his own castle, privileged against all civil
and military intrusion." •*•
nan's Liquors, 25 Conn. 278. See **Intoxicatinff Uquors^^ Dee, Dig. (Key No.)
I 249; Cent. Dig. S| 578, S8S.
s8« Allen y. Colby, 47 N. H. 644. See **Searche8 and Seizures,** Deo. Dig.
Key No.) | 7; Cent. Dig. § 5.
BBB2 Story* Const | 1000.
g 229) BIOHT TO OBTAIN JUBTICB rBXSLT. 617
BIGHT TO OBTAIK JUSTICE FBEEI.T.
'• la Bimajr of the states, the eonstitiitloiui proTide that erery per-
son ovsht to obtain Jnstioe freelj, without belnc obllsed to
purchase it» eompletely and wlthont denial, prontptlj and with-
ont delaj*
This provision is founded on the forty-seventh article of Magna
Charta, wherein the king declares : "We will sell to no man, we will
deny to no man, nor defer, right or justice." The guaranty of free,
prompt, and effectual justice, although it is but seldom violated by the
legislature or the courts, is one of the most important and valuable
principles of freedom. Of course this constitutional provision does not
mean that the laws shall be perfect, or their administration unerring.
It means that the courts shall always be open to every suitor, be he
high or low, rich or poor; that justice shall not be bought or sold,
nor made a luxury available only to the wealthy ; that for every infrac-
tion of the rights of the individual the law should provide a practical
and adequate remedy; and that justice should not be deferred by
vexatious and unnecessary delays, nor withheld during a longer time
than is required for the regular and orderly course of judicial proceed-
ings."'* But this provision does not secure to litigants the right to
take an appeal or writ of error from every decision of an inferior tribu-
nal ; ••^ nor does it have the effect to prohibit the taxation of fees
and costs in legal proceedings.**' Neither does it debar the legisla-
sBsThis constitutional provision Is not a guaranty of a remedy for every
8I)ecle8 of Injury, but only such as result from an Invasion or Infringement of
a legal right or a failure to discharge a legal duty. Goddard v. Lincoln, 09
Neb. .')94, 96 N. W. 273. But the constitutional guaranty is violated by a law
which Imposes heavy penalties or fines or other disastrous effects on the at-
tempt to resist, by appeal to the courts, the enforcement of a statute deemed
unjust or Invalid, the effect being to deter persons concerned from asserting
their opposition to it in good faith, and thus In effect denying them a remedy
for their injuries. Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885, 17 L. R. A.
(N. S.) 486, 128 Am. 9t Rep. 1061. As to delay in the administration of Jus-
tice, particularly In habeas corpus proceedings, see State v. Towery, 143 Ala.
48, 39 South. 309. Bee ^^Constitutional Laio,*' Dec. Dig, (Key No.) f S21; Cent.
Dig. H 960-955.
•ST Lake Brie & W. R. Oo. v. Watkins, 157 Ind. 600, 62 N. R 443 ; Kadderly
V. Portland, 44 Or. 118, 74 Pac 710 ; McClaln v. Williams, 10 S. D. 332, 73 N.
W. 72, 43 L. R. A. 287, 289 ; Fleshman v. McWhorter, 64 W. Va. 161, 46 S. B.
116; Mau v. Stoner, 14 Wyo. 188, 83 Pac. 2ia See 'Vonstitutianal Law,^
Dec Dig. (Key No.) ^ SB9; Cent. Dig. % 9iS.
tit porce T. HaUett, 18 R. L 868; Walker t. Whitehead, 43 Qa. 538; Succes-
/
GI8 dVIL RIGHTS AND THBIR PBOTECTIOK. (Ch. 18
ture from authorizing the courts to require suitors to furnish security
for the costs, in proper cases.*** To the same category belong stat-
utes requiring a person who seeks to have a tax sale of land set aside
to deposit in court the amount of the purchase money, together with
all taxes and costs accruing since the sale. Such laws are not in con-
flict with this provision of the constitution, at least when the ground
of attack consists in irregularities or omissions in the tax proceediings,
though it is probably otherwise when objection is taken to tlie legality
of the tax itself.***
TBIAI. BT JVltT.
S30. ProTlsiolu la the oonstitiitioiui of the MTerml statei, mm w«ll as
Itt the eonstitiitlon of the United States, seevre to snitom a
risht of trial hj Jury in oivil isanes.
231* Am essential element of this richt is the independenee of the in«
ry, and the oonstitntional provisions implj that the Jnry shall
not be eontrolled or eoereed hj the eonrt.
S3S. Trial hj Jnry ean he olain&ed as a matter of ri«ht onlj in eases
snitable for that mode of trial, and where the richt existed at
the time of the adoption of the partioalar eonstitntion* It oan^
not be elaimed as of richt in—
<a) Eqnity oases.
Gi) Admiralty eases.
<e) Summary proeeedinss.
slon of Grover, 48 La. Ann. 1050, 22 South. 318: Harrlgan ▼. GilchrlBt. 121
Wis. 127, 09 N. W. 909 ; Chrlstlanson v. Pioneer Furniture Co., 101 Wia. 343,
77 N. W. 174. But compare DavidBon v. Jennings, 27 Oolo. 187, 60 Pac. 364,
48 L. R. A. 340, 83 Am. St Rep. 49. See **Con8iUuiional Law,'* Dec, Dig. (Key
No.) I S26; Gent. Dig. §| 959, 960.
»6»Conley v. Woonsocket Inst., 11 R. I. 147. But in Pennsylvania it Is
held that a rule of court requiring security for costs to be given by the plain-
tiff in actions of tort is unconstitutional, since its enforcement would be a
denial of Justice to any one too poor to comply with it Schade ▼. Duppert,
17 Pa. Go. Gt R. 460. A law providing for the use of "struck Juries" when
claimed by either party, and requiring the applicant therefor to pay the fees
for striking the same and also the fees of the Jury, is not in conflict with this
constitutional provision. Lfommen v. Minneapolis Gaslight Go., 06 Minn. 198,
68 N. W. 63, 33 li. R. A. 437, 60 Am. St Rep. 460. And see Bdcrich v. St
Louis Transit Co., 176 Mo. 621, 76 S. W. 765, 62 L. R. A. 911, 98 Am. St Rep.
617. See '^Constitutional Law,** Dec. Dig. (Key No.) § 326; Cent. Dig. If 959,
960.
s«o Black, Tax Titles, f 438; Graig v. Flanagin, 21 Ark. 319; Pope v. Ma-
con, 23 Ark. 644; Goonradt ▼. Myers, 31 Kan. 30, 2 Pac. 86a See ''Conititu-
iional Law,** Deo. Dig. (Key No.) i £85; Cent. Dig. || 90Z, 90S.
§§ 2S0-233) TBIAL BT JUBT. 619
B33. It Is not oompcteiit for tl&e lesislmtnro to impose vpom the richt
of trial hy Jury eveh oaeroiie or oppreeeiTe reetrietioBe or eom«
ditions AS would make it praetioallj luutTailiiic to a partj for
his beaeflt or proteetioa.
The Seventh Amendment.
The seventh amendment to the federal constitution provides that
"in suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved, and no
fact tried by a jury shall be otherwise re-examined in any court of the
United States than according to the rules of the common law." This
amendment, although it provides in general terms that the right of
trial by jury shall be preserved, was intended to apply, and does apply,
only to proceedings in the courts of the United States, and it does
not affect proceedings in the state courts, nor the power of the states
to regulate the form and method of trials in their own tribunals.***
Neither this clause nor the provisions of the fourteenth amendment
forbids the states to abolish or deny the right of trial by jury. Such
prohibition, if any, must be found in the constitution of the particular
state.**' The language of the seventh amendment is to be taken
broadly and liberally, as preserving an important right. Thus it is
said that it may, in a just sense, be construed to embrace all suits
which are not of equity or admiralty jurisdiction, whatever peculiar
form they may assume to settle leg^l rights.*** But the provisions
of the seventh amendment did not apply to a preliminary examination
under the fugitive slave law, such a proceeding not being according
to the course of the common law, but constitutional and statutory.***
The provisions in the various state constitutions relative to trial by
jury generally declare that this right "shall remain inviolate," or "shall
be preserved," or "shall be as heretofore." But in some, the right is
expressly limited to civil cases or civil issues, or even to civil cases
wherein an issue of fact proper for a jury is joined in a court of
t«i BdwardB y. Elliott, 21 Wall. 532, 22 L. Ed. 487 ; Liyingston v. City of
New York, 8 Wend. (N. Y.) 83, 22 Am. Dec. 622. See **Jury," Dec. Dig. (Key
Vo.) § /// Cent. Dig. § 25.
•«« Walker v. Sauvinet, 92 U. S. 90, 23 L. Bd. 678. See "Constitutional
Iroic." Dec. Dig. (Key No.) { SIS; Cent. Dig. | 9SS; "Jury," Dec Dig. (Key
No.) t 11; Cent. Dig. | 2S.
••« Parsons v. Bedford, 3 Pet 433, 447, 7 L. Bd. 732. Bee "Jury,** Deo. Dig.
(Key yo.) 1 12; Cent. Dig. | «7%.
••4 Mmer v. McQnerry, 5 McLean, 469, Fed. Cas. No. 9,583. See Vnry,"
Deo. Dig. (Key No.) ^ 19; Cent. Dig. i ISl.
620 GIYIL BIGHTS AND THSIR PROTECTION. (Ch. 18
law. In several states, also, cases of minor cognizance or where only
a small amount is involved are, for reasons of obvious propriety, ex-
cepted from the right of trial by jury. And in several, this right is
dlenied "in cases heretofore used and practiced," which means that
cases which were tried without a jury according to the established
practice at the time of the adoption of the constitution are not to be
included in the general guaranty of that right.***
Meaning of Trial by Jury.
"The terms 'jury' and 'trial by jury' are, and for ages have been,
well known in the language of the law. They were used at the adop-
tion of the constitution, and always, it is believed, before that time,
and almost always since, in a single sense. A jury for the trial of a
cause was a body of twelve men, described as upright, well-qualified,
and lawful men, disinterested and impartial, not of kin nor personal
dependents of either of the parties, having their homes within the
jurisdictional limits of the court, drawn and selected by officers free
from all bias in favor of or against either party, duly impannelled un-
der the direction of a competent court, sworn to render a true verdict
according to the law and the evidence g^ven them, who, after hearing
the parties and their evidence, and receiving the instructions of the
court relative to the law involved in the trial, and deliberating, when
necessary, apart from all extraneous influences, must return their
unanimous verdict upon the issue submitted to them." •••
Number and Composition of the Jury,
Wherever the right of trial by jury is preserved and guarantied by
the constitutions, a common law jury is meant; and at common law
a jury was always composed of twelve men, no more and no less.
Therefore it is not lawful for the legislature (unless specially em-
powered by the constitution) to provide that a jury for the trial of
civil issues in cases which required a jury at common law may be
composed of a less or greater number than twelve.**^ But wherever
facts are to be found in any proceeding in which a jury was not re-
quired by the common law, a jury of any number may be authorized
865 sum. Am. St Law, §| 72, 73.
••• State v. McQear, 11 Nev. 39, 60. See '*Jury,'* Dec. Dig. (Key Vo.) {{ i,
10, SS; Cent. Dig. SS i, 16, 228, 2S2.
ieTDowling ▼. State, 5 Smedea ft M. (Misa) 664; People ▼. Kennedy, 2
Parker, Cr. R. (N. Y.) 312; Vaughn v. Scade, 80 Mo. 600; Lamb v. Lane, 4
Ohio St. 167 ; People v. Justices of Court of Special See8i<»i% 74 N. Y. 40tt.
Bee **Jury,'* Deo. Dig. (Key Ho.) | S2; Cent. Dig. If Ztl-US.
§§ 230-238) TRIAL BY JURY. C21
in the discretion of the legislature; and as juries did not belong to
courts held by justices of the peace, the legislature, if it authorizes
juries in such courts at all, may provide that they shall consist of
a different number of men.*** It was also a part of the trial by jury
at common law that the jurors should render a unanimous verdict.
Consequently, to provide by law that a majority of a petit jury, or
less than the whole number, may render a verdict in any case where
the constitution accords the party the right to a jury trial, would be
unconstitutional.*** It is said, however, that the constitutional pro-
vision that the right of trial by jury shall remain inviolate does not
necessarily means trial by a jury of the vicinage. Juries were originally
selected from the vicinage because, being so selected, they were more
likely to have some independent knowledge of the matter to be tried.
But this reason no longer exists, and at present the only reason for
drawing a jury from the vicinage is found in the convenience of parties
and witnesses.*^* But an act which prohibits those who are not tax-
payers from serving on juries is understood to conflict with the pro-
visions of the seventh amendment to the federal constitution.*^* And
it is clearly a part of the right of trial by jury, as the same existed
at common law, that the parties should have the right to inquire into
the qualifications and impartiality of the jurors, and be permitted to
challenge such as are unfit to serve or are biased against them.*^*
An act providing for "struck juries," on the demand of either party,
is not in conflict with the constitutional provision that the right of
trial by jury shall remain inviolate.*'*
Province of Court and Jury.
In a trial by jury the judge and jury have different, though related,
duties and provinces. The facts are for the jury; the law for the
S68 Work r. State, 2 OMo St 206, 59 Am. Dec. 671. Bee ''J wry,'' Dec, Dig.
(Key No.) i S2; Cent. Dig. If 221-225.
B«» Opinion of JnstlceB, 41 N. H. 5o0; Klelnschmidt v. Danphy, 1 Mont 11&
Bee **Jurv:' Dec Dig. (Key No.) t S2; Cent. Dig. { 224.
STO Taylor ▼. Gardiner, 11 R. I. 182. But compare Swart ▼. Kimball, 43
lOch. 443, 5 N. W. 635. Bee **Juryr Dec. Dig. (Key No.) t SS; Cent. Dig. § 229.
•Ti Reece y. Knott 3 Utah, 451, 24 Pac. 757. Bee ''Jury,*' Dec Dig. (Key
No.) I SS; Cent. Dig. %% 227.
•Tspalmore y. State, 29 Ark. 248; Paul y. Detroit 32 Bilch. 106. Bee
Vnfif," Deo. Dig. (Key No.) | 35; Cent. Dig. IS 250, 2S2.
•Ts Lommen y. Minneapolis Gaslight Co., 65 Minn. 196, 68 N. W. 63, 33 I#. R.
A. 437, 60 Aal St Rep. 460. See ''Jury," Deo. Dig. (Key No.) | SS; Cent. Dig.
622 dYIL RIGHTS AND THEIR PROTECTION. (Ch. 18
court. And tht jury, within their own province, are independent of
the court ; that is, they cannot be dictated to or controlled in respect
to their verdict, if the case involves disputed questions of fact and
conflicting testimony. It is the duty of the judge to decide questions
of law arising in the course of the trial, and to instruct the jury as
to the law which should govern the controversy. He should see
that every case so goes to the jury that they have clear and intelligent
notions of the points they are to decide, and to this end he should give
necessary instructions, whether so requested by counsel or not.*^* It
is not error for the court to direct the jury to return a particular
verdict, when the evidence is so conclusive that it would be the duty of
the court to set aside a different verdict as against the evidence, al-
though there may be some slight conflict of testimony.*" "Decided
cases may be found where it is held that if there is a scintilla of evi-
dence in support of a case the judge is bound to leave it to the jury;
but the modem decisions have established a more reasonable rule, to
wit, that before the evidence is left to the jury, there is or may be in
every case a preliminary question for the judge, not whether there is
literally no evidence, but whether there is any upon which a jury can
properly proceed to find a verdict for the party producing it, upon
whom the burden of proof is imposed." *''* The refusal of jurors to
obey a peremptory instruction to find a verdict for one of the parties
is reprehensible in the highest degree, and may subject them to pun-
ishment for contempt. In such a case, it is thought, the court would
have authority to direct the entry of the proper verdict without the
assent of the jury.*^^ In some of the states the judges are expressly
forbidden to express to the jury any opinion on the facts. But, where
there is no such specific prohibition, it is not improper for the court to
express to the jury its opinion upon the weight and character of the
»T4 0wen V. Owen, 22 Iowa, 270. See **Jury,'* Dec. Dig. (Key No,) | S4:
Cent Dig. | 2S5; ''Trial:' Dec. Dig. (Key No.) || 1S4-1S1; Cent. Dig. §§ W7-
406.
•TBOominf V. Troy Iron & Nail Factory, 44 N. Y. 577; National Exch.
Bank of Boston y. White (C. C.) 30 Fed. 412. But see Curry ▼. Curry, 114 Pa
367, 7 Atl. 61. See "Juryr Dec. Dig. (Key No.) § S4; Cent. Dig. S 2S5; 'Trt-
al," Dec Dig. (Key No.) §§ ISk-lSl; Cent. Dig. |§ Sll^m.
ST6 Marion County v. Clark, 94 U. S. 278, 24 L. Ed. 58. See **Jury;' Dec
Dig. (Key No.) § Sit; Cent. Dig. § W5/ "TrtoJ*" Dec. Dig. (Key No.) if ISJ^
181; Cent. Dig. §§ Sn-m.
•77 Cahill v. Chicago, M. & St P. R. Co., 20 C. C. A. 184, 74 Fed. 285. B$§
'Trial," Dec Dig. {Key No.) f 179; Cent. Dig. ^ 404.
§§ 280-288) TRIAL BT JURY. 623
evidence, if in the end the question is left to the jury.*^* But it should
be observed that such expressions of opinion as to the evidence are
very different in character from the instructions of law. The latter
are imperatively binding on the jury ; not so the former. In the courts
of the United States, the judges have the right to express their opin-
ion on the evidence, and their authority in this particular is not con-
trolled by state statutes forbidding such a practice to the state judges.
''Trial by jury in the courts of the United States is a trial presided
over by a judge with authority not only to rule upon objections to
evidence and to instruct the jury upon the law, but also, when in his
judgment the due administration of justice requires it, to aid the jury
by explaining and commentidg upon the testimony, and even giving
them his opinion upon questions of fact, provided only he submits
those questions to their determination." '^^ ^ —
In What Proceedings Trial by Jury May be Claimed.
In view of the way in which the guaranty of trial by jury is ex-
pressed in the seventh amendment and in the state constitutions, as
adverted to above, it is settled by the courts that the guaranty merely
preserves this right and does not extend it. Consequently, a trial
after this method may be claimed as a matter of constitutional right
only in those cases where it could have been demanded, as of right,
under the common or statutory law which was in torce at the time
the constitution was adopted.*'® The right of trial by jury, it is said,
is secured by the guaranties of the various state constitutions in and
for the various proceedings of legal cognizance in which that mode
of trial was employed when the several constitutions were adopted,
having regard always to the nature and character of the controversy,
and not to the mere form of the action or proceeding. But it is not
imposed upon substantially new rights and proceedings arising^ after
the constitution.*'* And not every case which is not a criminal case
tTs Rowell y. rnller*8 Estate, 59 Vt. 688, 10 AtL 853. See **TriaW' Dec. Dig.
(Key No.) §1 m-lkk: Cent. Dig. » SlI^U^
BT«U. S. v. Philadelphia ft R. R. Co., 123 U. S. 118, 8 Sup. Ot 77, 81 L.
Ed. 138; VickBburg ft M. R. Co. v. Putnam, 118 U. 8. 645, 7 Sup. Ct. 1, 80 L.
Ed. 257. See THoi," Dec Dig. (Key No.) §| 134-181; Cent. Dig. H 317-406-
•••Trlgally ▼. City of Memphis, 6 Cold. (Tenn.) 382; Copp y. Hennlker, 56
N. H. 170, 20 Am. Rep. 194; Harper t. Commissioners of Town of Elberton,
28 Ga. 666; People v. Phillips, 1 Edm. Sel. Cas. (N. X.) 886; Ross t. Inrlng,
14 111. 171. Bee ''Jury;' Dec Dig. (Key No.) U 9^4, 30-37; Cent. Dig. U i|-
143, Z04-B4Z.
8ti Board of Com'rs of MOJe Lacs Co. t. Morrison, 22 Minn. 17a See
*'Jury,'* Dec. Dig. (Key No.) U 9-94f 5(M7; Cent. Dig. U 14-149, 204-242.
624 OITIL BIOHT8 AND THBXR PBOTSOTIOH. (Ch. 18
is a civil one» wherein, by the constitution, the right of trial by jury
shall remain inviolate; but that term embraces such as were treated
as civil cases when the constitution went into effect ••* At the same
time it is important to remember that it is not the form of the pro-
ceeding which governs here, but the question whether the case is of
that general diescription to which trial by jury was anciently considered
applicable. Consequently it may be said with propriety that the con-
stitutional provisions apply to all controversies fit to be tried by a jury
according to the rules of the common law, notwithstanding the par-
ticular right for the violation of which the action is brought did not
exist at common law, but was created by a statute passed after the
adoption of the constitution.'®* In the courts of the United States it
is held, with regard to suits for penalties for smuggling, that if the
action is against the master, it is triable by jury, but if against the
vessel, it need not be so tried.*'*
Proceedings in Which the Privilege is Not Claimable.
There are many varieties of proceedings or controversies in which,
for the reasons just stated, a trial by jury cannot be claimed as a
matter of constitutional right. For example, in the trial of claims
against the government, the claimant has no constitutional right to
a trial by jury. The government cannot be sued without its own
consent. If it permits the judicial ascertainment and enforcement of
claims against it, the proceedings thereon are not suits at common
law. It may establish tribunals for the hearing of such claims and
regulate their procedure as it may see fit. And the party has no other
mode of establishing his claim than that pointed out by the statute.
The allowance of such actions is an act of grace, and the government
is under no obligation to accord him a trial by jury.'** Again, the
power to punish for contempts is incident to all courts of record.
Cases of contempt of court were never triable by jury, but long before
the adoption of the constitutions it was within the power of the court
to proceed summarily in such cases. Moreover, the very object of
«»» Lake Erie, W. & St. L. R. Ck). ▼. Heath, 9 Ind. 558. See **Jury** Dec.
Dig. (Key No.) §{ 9-24, SOST; Cent. Dig. %% U-HS, 204-2^2.
888 Plimpton V. Town of Somerset, 33 Vt 283. See **Jury," Dec. Dig. (Key
No.) §§ 9-^4, S0S7; Cent. Dig. §§ U-14S, 20Jh242.
»•* U. a v. The Queen, 4 Ben, 237, Fed. Cas. No. 16,107. See Vi»ry,*» Dec
Dig. (Key No.) { 18; Cent. Dig. 1 102.
S8B McBlrath y. U. S., 102 U. S. 426, 26 L. Ed. 189. See *'Jury," Deo. Dig.
(Key No.) § 11; Cent. Dig. | 21.
§§ 280-238) TBIAL BT JUBT. 626
such proceedings would be defeated in many instances if it were nec-
essary to invoke the judgment of a jury. Consequently the summary
punishment of contempts is no violation of the constitutional right
of trial by jury/'* So also, in the assessment and collection of taxes,
the constitutional provisions relating to trial by jury db not apply;
and the tax payer cannot complain of the mode of proceeding if he
is given an opportunity to defend against the legality of the tax or the
liability of his property before some competent board or tribunal."*^
In quo warranto proceedings, according to the opinion prevailing in
some of the states, there is no constitutional right of trial by jury,
although this is not ever)rwhere admitted.*'* Neither is this mode
of trial claimable as of right in divorce proceedings, unless especially
made applicable thereto by law.*** In proceedings for the appropria-
tion of private property for public use, under the power of eminent
domain, the owner has no constitutional right to a trial by jury, unless,
as is the case in some of the states, the constitution expressly gives it.
The proceeding is in the nature of an appraisement or arbitration,
rather than a suit.*** So again, the appointment of a guardian or
committee for an insane person, a spendthrift, or an habitual drunkard,
is not regarded as one of the cases in which a jury trial is preserved
by the constitution.*** And a statute authorizing the commitment of
infants to the house of refuge, without a trial by jury, is constitu-
»«« U. S. ▼. Hudson, 7 Cranch, 32, 3 I/. Bd. 259; Ex parte Wall, 107 U. S.
265, 2 Slip. Ct. 569, 27 L. Ed. 552; Oarrigus r. State, 93 Ind. 239; State y.
Doty. 32 N. J. I^w, 403, 90 Am. Dec. 671. See *'Jury,*' Dec. Dig. (Key No.) |
21; Cent. Dig. § 1S9.
»»T Cocheco Mfg. Co. ▼. Town of Strafford, 51 N. H. 455; Board of CJom'rs
of Mille Lacs County ▼. Morrison, 22 Minn. 178 ; Harper ▼. Commissioners of
Town of Elberton, 23 Ga. 566. See **Jury,'* Dec. Dig. (Key No.) | 19; Cent.
Dig. §§ m, 125.
>«• See State r. Lupton, 64 Mo. 415, 27 Am. Rep. 253; State ▼. VaU, 53 Mo.
97; People v. Albany & S. R. Co., 57 N. Y. 161; People v. Doesburg, 16 Mich.
133. See **Jury:* Dec. Dig. (Key No.) % 19; Cent. Dig. | 105.
ss» Coffin r. Coffin, 55 Me. 361; Cassidy y. Sullivan, 64 Cal. 206, 28 Pac.
234. Bee '*Juryr Dec. Dig. (Key No.) §§ U, 19; Cent. Dig. §§ 66, 105.
890 Pennsylvania R. Co. y. First German Lutheran Congregation of Pitts-
bargh, 53 Pa. 445 ; Livingston v. City of New York, 8 Wend. (N. Y.) 85, 22 Am.
Dec. 622; Butler v. Worcester, 112 Mass. 541. See **Jury,'' Dec Dig. (Key
No.) 1 19; Cent. Dig. |§ 116-119.
••1 Gaston y. Babcodc, 6 Wis. 503 ; Hagany v. Cohnen, 29 Ohio St 83 ; Black
Hawk Co. y. Springer, 58 Iowvl, 417, 10 N. W. 791. Bee **Jury;* Dec Dig. (Key
No.) S 19; Cent. Dig. U 112, US.
Bl.Oonbt.L.(3d.Ed.>-- ^0
/
','
626 CI7IL RIGHTS AND THEIB PROTECTION. (Ch. 18
tional.*** So also, in proceedings supplementary to executi(Mi, the
debtor is not entitled, under the constitutional guaranty, to a trial by
jury.**' Whether or not the trial by jury may be claimed as of right
in proceedings to determine a contested election is still an unsettled
question. In some of the states, the courts hold that such an issue
may be determined without a jury; in others, a contrary opinion pre-
vails.***
Equity Cases.
The distinction between actions at law and suits in equity was
established in this country before the adoption of the constitutions,
and in equity proceedings a jury was not employed. It results that
those constitutional provisions which preserve the right of trial by
jury, or declare that it shall remain "inviolate," do not extend the
guaranty to equitable proceedings such as were used to be tried with-
out a jury before the constitutions went into effect."*" For example,
the practice of uniting the legal cause of action for the mortgage debt
with the equitable remedy in foreclosure, rendering the whole an
equitable proceeding, existed in many of the states before the adop-
tion of the constitutions, and hence the parties in such a proceeding
cannot now claim a jury trial of the issue upon the debt.*** But still
the legislature cannot convert a legal right into an equitable fight,
so as to infringe upon the right of trial by jury.**^ For instance, the
constitutional right to trial by jury applies to an action to abate a
nuisance and recover the damage occasioned thereby, although the
complaint is in form as for equitable relief and the prayer for dam-
ages may be regarded as incidental thereto.***
«•« Ei parte Croufle, 4 Whart (Pa.) 0. See "Jury,** Dec. Dig. (Key No.) {
21; Cent. Dig. | 1S8.
s»8 Kennesaw Mills Co. ▼. Walker, 19 S. C. 104: See "Jury,** Dec. Dig. (Key
No.) 1 16; Cent. Dig. | 89.
••♦Compare Ewing v. Filley, 43 Pa. 384; State v. Lewis, 51 Conn. 113;
State V. Gleason, 12 Fla. 190 ; People v. Clcottee, 16 Mich. 283, 97 Ank Dec. 141.
See **Jury,'* Dec Dig. (Key No.) { 19; Cent. Dig. | ISO.
«» 8 Goodyear v. Providence Rubber Co., 2 Cliff. 351, Fed. Cas. No. 5,583;
Wynkoop v. Cooch, 89 Pa. 450 ; Bellows v. Bellows, 58 N. H. 60. See "Jury,**
Dec. Dig. (Key No.) § IS; Cent. Dig. §| S5-8S.
••• Stlllwen V. KeHogg, 14 Wis. 461 ; Middletown Sav. Bank y. Bacharach,
46 Conn. 513 ; Carmichael v. Adams, 91 Ind. 526. See "Jury,** Dec Dig. (Key
No.) § IS; Cent. Dig. §| S5-8S.
••T Appeal of Norris, 64 Pa. 275. See "Jury,** Dec. Dig. (Key No.) { SI;
Cent. Dig. | 207.
«»8 Hudson V. Caryl, 44 N. Y. 553; Hyatt v. Myers, 73 N. a 232. See
"Jury;* Dec Dig. (Key No.) | IS; Cent. Dig. | 78,
§§ 280-233) TRIAL 9T JUBT. 627
Admiralty Jurisdiction.
The judicial power of the United States is extended by the consti-
tution to all cases of admiralty and maritime jurisdiction. But cases
arising in the admiralty are not ''suits at common law'' within the
meaning of the seventh amendment, and consequently the admiralty
courts may proceed to the determination of causes properly before
them without the aid of a jury; and this is the case even where the
jurisdiction is extended to controversies which were not originally
within the scope of the admiralty.' ••
Summary Proceedings.
There are certain kinds of proceedings (usually described as "sum-
mary") in which, by the ancient practice of the courts, a liability could
be fixed upon persons connected with the court or with the course
of proceedings therein, without the intervention of a jury. And these
proceedings still remain lawful, notwithstanding the guaranties in
the ccMistitutions. Thus, a law authorizing summary proceedings by
motion against a sheriff and his sureties for official misconduct, is no
violation of the constitution.*®* So the sureties on bonds given in
the course of judicial proceedings, such as appeal bonds, writ of error
bonds, and bonds for costs, are liable to have judgment entered against
them on such bonds without a trial by jury.*®*
Peremptory Nonsuits,
Notwithstanding^ some difference of opinion, it is now generally
agreed that the right of trial by jury does not include the right to
have the jury render a verdict in cases where the law is clearly against
the plaintiff. The jury are to try and determine the facts, but it is
the court which must declare the law applicable to the facts. Conse-
quently, when the judge, at the close of the plaintiff's evidence, or-
ders a peremptory nonsuit, on the ground that, conceding all the facts
which the jury could find from the evidence, those facts are not suffi-
cient to establish a liability against the defendant, such action is no
violation of the plaintiff's constitutional rights.*®'
•••New Ekigland Mut Marine Ins. Co. ▼. Dunham, 11 Wall. 1, 20 L. Ed. 90;
Shei^ard ▼. Steele, 43 N. Y. 52, 3 Am. Rep. 600. See ''Jury,*' Dec. Dig. (Keff
No.) i 31; Cent. Dig. % 207.
«oo Lewis ▼. Garretrs Adm*rs, 6 How. (Miss.) 434. Bee "Jury,** Dec Dig.
(Key No.) i 16; Cent. Dig. I 91.
«oi Bank of Columbia ▼. Olsely, 4 Wheat. 235, 4 L. Ed. 559; Whitehurst y.
Coleen, 63 111. 247 ; GUdersIeeYe v. People, 10 Barb. (N. Y.) 35 ; Young ▼. Wise,
46 Ga. 81. See ''Jury," Dec. Dig. (Key No.) || 16, 19; Cent. Dig. |i 86, IO4.
4oa Munn y. City of Pittsburgh, 40 Pa. 301 ; Maugatuck R. Ca y. Waterbury
628 OlYIL RIGHTS AMD THJBIR FBOXECTIOK. (Ch. 18
Compulsory References.
In some of the states, before the adoption of the constitutions, the
practice of ordering references, especially in cases involving the ex-
amination of a long account, was in use and sanctioned by law. In
those jurisdictions, therefore, such a practice is still permissible, and
a compulsory reference, in suitable cases, is no infringement of the
constitutional rights of suitors.**' But in the courts of some of the
other states, as also in those of the United States, it is not lawful to
deprive a party of his right to a trial by jury by compelling him,
against his will, to submit his cause to the decision of arbitrators
or referees.***
Restrictions on the Right.
The constitutions were intended not merely to secure the right of
trial by jury, but also to insure that it should be continued in existence
as a substantial and valuable protective right to private suitors. Now
it is evident that it would be entirely feasible for a state legislature,
if so minded, to impose such onerous and oppressive restrictions or
conditions upon this right as to make it practically unavailing to a
party for his protection, yet without denying it in express terms.
But this would be a palpable violation of the spirit and intent of the
constitutional provision, and the courts would hold any such restric-
tions upon the right as not less unconstitutional than the total denial
of it.*** But such a result could not be predicated of any provisions
which imposed conditions to the exercise of the right which were
merely reasonable and not prohibitive limitations, and did not clog it
unduly. For instance, there is no valid objection to a law requiring
that a party who demands a trial by jury shall pay a reasonable jury
fee.*** And so a statute authorizing a judgment by default to be
Button Co., 24 Conn. 4G8. See Baylls v. Travelers' Ins. Co., 113 tJ. S. 816, 5
8up. Ct 404, 28 r* Ed. 989. See **Jury,'' Dec, Dig. (Key No.) | S4; Cent. Dig.
§ 2S5.
*o8 Lee v. TiUotson, 24 Wend. (N. Y.) 337, 35 Am. Dec 624 ; Mead ▼. Walker,
17 Wis. 189. See "Jury," Dec. Dig. (Key No.) | SI; Cent. Dig. i 215.
*o4 u. S. V. Rathbone, 2 Paine, 578, Fed. Cas. No. 16,121 ; Rhlnea ▼. Clark,
61 Pa. 96 ; Bernhelm v. Waring, 79 N. a 56. See "Jury,** Deo. Dig. (Key No.)
i SI; Cent. Dig. I 215.
406 Flint River Steamboat Co. v. Foster, 5 Oa. 194, 48 Am. Dec. 248. See
"Jury,** Dec. Dig. (Key No.) H 10, 12, 25, SI, SO; Cent. Dig. %% 16, 21, 155, 206,
242.
4o« Adams v. Corriston, 7 Minn. 456 (Gil. 365). See "Jury," Deo. Dig. (Key
No.) I SI; Cent. Dig. I 21S.
§§ 230-238) TBIAL BT JURY. 629
entered in case the defendant does not within a reasonable limited
time file a sufficient affidavit of defense, is not an unreasonable re-
striction upon the right of trial by jury.**^ But on the other hand,
it is held that an act making an auditor's report prima facie evidence
of the facts found by him on the trial before the jury impairs the
constitutional right of trial by jury. "If the jury can be compelled
to give their verdict, not upon the issue between the parties, but upon
the question whether an auxiliary decision of that issue is right, giving
to that auxiliary decision as evidence of its own correctness such
weight as the legislature chooses to prescribe, the constitutional guar-
anty of trial by jury is a delusion; and if that guaranty can be re-
pealed by legislative circtunlocution, every other constitutional guar-
anty is a constitutional farce."***
Jury Trial Allowed on Appeal,
It is generally considered that there is no impairment of the right
of trial by jury, although the statute authorizes a justice of the peace
or other inferior court or magistrate to decide causes without a jury,
provided that the party who is compelkd to submit his cause to the
judgment of such a court is allowed an unrestricted right of appeal
to a court which proceeds with the aid of a jury.*** But the better
opinion, in regard to criminal cases, is that the right of trial by jury
means the right to such a trial in the first instance, and not a right
to appeal from a conviction by a magistrate.*** And it is not easy
to discover the difference in principle between civil and criminal cases,
in respect to the exercise of this right.
Waiver of the Right.
By the constitutions of several of the states it is provided that the
right of trial by jury may be waived by the parties in all civil issues.
But even without this clause it would be entirely competent for those
interested to agree that the court should proceed to determine the
40T Lawrance v. Bonn, 86 Pa. 225 ; Dortlc ▼. Lockwood, 61 Ga. 293. Bee
""Jury:' Dec Dig. (Key No.) I SI; Cent. Dig. I 209.
*«• King V. Hopkins, 67 N. H. 834 ; Plimpton v. Town of Somerset, 33 Vt
283. See ♦Viifv,'* Dec. Dig. (Key No.) I S4; Cent. Dig. ^ 294.
«otQa8ton V. Babcock, 6 Wis. 603; Haines ▼. Levin, 61 Pa. 412; Norrls-
town, H. & St L. Turnpike Oo. ▼. Burket, 26 Ind. 68. Bee '*Jury,'* Deo. Dig.
(Key No.) I S5; Cent. Dig. H 2X1-^41^
«xo callan ▼. WUson, 127 U. S. 640, 8 S19. Gt 1801, 82 L. EcL 223; In re
Dana, 7 Ben. 1, Fed. Gas. Now 8,664. Bee **Jiiry," Dec. Dig. (Key No.) % $S;
Ceni. Dig. | «|^
630 CIVIL RIGHTS AND THEIB PROTECTION. (Ch. 18
cause without a jury.*^^ Accordingly, when the defendant has an
opportunity to demand a trial by jury, and omits to do so, he cannot
complain that his constitutional rights are denied him if the trial
proceeds without a jury.*** And so, where a default is suffered in
an action for damages, the court may proceed to assess the damages.
The defendant has no constitutional right to have them assessed by a
jury.***
*ii Greason v. Keteltas, 17 N. Y. 491 ; Baird ▼. City of New York, 74 N. Y.
382 ; Garrison ▼. HolUns, 2 Lea (Tenn.) fl84. See "Jury*** Dec. Dig. (Key No,)
U 27-29; Cent. Dig. |i 176-208.
«it riint River Steamboat Co. v. Foster, 5 Ga. 194, 48 Am. Dec. 248; Leahy
▼. I>anlap, 6 Oolo. 552 ; Foster v. Morse, 132 Mass. 354, 42 Am. Rep. 438. See
**Juryr Dec. Dig. (Key No.) || 27-29; Cent. Dig. H 176-203.
41 s Raymond t. Danbnry & N. R. Co., 43 Conn. 506, Fed. Cas. No. 11,593;
Hopkins T. Ladd, 35 111. 17a See '*Jury:' Dec. Dig. (Key No.) 1 16; Cent. Dig.
185.
§§ 284-239) POLITICAL and public bights. 631
OHAPTEB XTX,
POUTICAL AND PUBLIO RIGHXa
234-239. Gitlzttiship.
240. I>ouble Citizenslilp in the United States.
241. Privileges of Citizens of the United SUtesi
242-244. The Right of Suffrage.
245. Freedom of Speech and of the Press.
246. Same — Criticisms of Government
247. Same — Censorship of the Press.
248-252. Same— Privileged Communicationa
253. The Right of Assembly and Petition.
254. Disfranchisement
OmZSNSKIP.
234. The f owteeatli ameadaieat to tke federal eoAstttutlem declAves
tkmt **mll persoiu bom or matvroliaod im tlM Ualted States, aad
sabjeot to the JarlsdietioA thereof, are oitiBoiu of the Ualted
States aad of the state whoroia they reside.**
886. With respeet to the auuuMr of aoqviriac eitiaeaship, the oitiseaM
of the Uaited States are divided iato two elassest
(a) Native bora oitiaeas.
(b) Hataralised eitiseas.
886. Oitiaeaship ia the Uaited States is aot restrieted to advlta or
stales, bat beloacs oqaallj to woaiea aad ehildrea.
837. Corporatioa« eaaaot bo eitiseaa ef the Uaited States.
838. The aative Tadiaas, thoash bora wAthia the Uaited States, eaa
beeoBie eitiseas oalj hj aataralisatioa.
889. The risht of expatriatioa is f ally reeosaised ia this eoaatrj.
Before the adoption of the fourteenth amendment, the rights and
status of a citizen of the United States were very doubtful. It was
even uncertain whether there was anything under the federal system
corresponding to citizenship in the several states. Many publicists
contended that if there was a citizenship of the United States, it was
possessed by virtue of, and resulted from, citizenship in a state. This
of course excluded from the definition of citizenship all the residents
of the United States who were not citizens of some state, including
the inhabitants of the territories and of the District of Columbia, In-
dianSy and negroes. These persons, it was thought by some^ were not
632 POLITICAL AND. PUBLIC BIOHT8« (Ch. 19
citizens at all. In the Dred Scott Case, Chief Justice Taney stated that
the question at issue was as follows : "Can a negro, whose ancestors
were imported into this country and sold as slaves, become a member
of the political community formed and brought into existence by the
constitution of the United States, and as such become entitled to all
the rights and privileges and immunities guarantied by that instrument
to the citizen? One of which rights is the privilege of suing in a
court of the United States in the cases specified in the constitution/'
And this question was answered in the negative.^
The purpose of the fourteenth amendment was to secure to the
newly emancipated colored race the rights and privileges which be-
longed to them, since the abolition of slavery by the thirteenth amend-
ment, in common with all others living under the protection of federal
law. It conferred upon them citizenship in the United States, with
all its privileges. It did not make them citizens of the states. But
it gave them the right to acquire citizenship in a state, in addition to
their federal citizenship, by residence therein. Though necessarily
general in its terms, this amendment applies especially and peculiarly
to these people. There have been very few cases in which its benefits
have been invoked by any others. It is held that no white person bom
within the limits of the United States and subject to their jurisdiction,
or bom without those limits and subsequently naturalized, owes his
status of citizenship to the amendment.* The promotion of colored
persons to citizenship, by this provision, is an admission of them to all
the rights and privileges of white citizens in the same manner and to
the same extent. They cannot be distinguished from other citizens,
by legislation, for any of the causes which previously characterized
their want of citizenship.* But at the same time, it must be remem-
bered that the fourteenth amendment does not add to the privileges
or immunities of citizens, but only furnishes additional protection for
the privileges already existing.*
1 Dred Scott v. Sandford, 19 How. 393, 403, 15 L. Ed. 691. Bee ^'Citizens*'
Dec. Dig. (Key No.) § 2; Cent. Dig. | 14.
2 Van Valkenburg v. Brown, 43 Cal. 43, 13 Am. Rep. 136. See **Citieens,"
Dec. Dig. (Key No.) | 2; Cent. Dig. | i.
» Bums ▼. State, 48 Ala. 195, 17 Am. Rep. 34. See "Civil Rights,** Dec Dig.
(Key No.) % 1; Cent. Dig. § i.
4 Minor ▼. HapperseU, 21 Wall. 162, 22 L. Ed. 627. And see United States
V. Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct. 456, 42 L. Ed. 89a See "Citi-
gem,*' Deo. Dig. (Key No.) I 2j Cent. Dig. i i.
§8 284-289) GITIZEK8HIP. 833
Definition of Citizenship.
Citizenship is the status or character of being a citizen. And a
citizen of a given state or country is one who owes it allegiance and
is entitled to its protection.* The two correlative ideas of allegiance
and protection form the basis of the legal and political conception of
citizenship. The citizen is subject to the jurisdiction of his country
and to its laws. He owes it loyalty, his services at need, and his money
to defray its expenses. In return he is entitled to claim its protection
against domestic violence and foreign oppression. The possession of
civic rights is not the test of citizenship. There are many who are
legally incapable of voting for public officers or of filling the offices
themselves, who are none the less citizens. Neither is mere inhabi-
tancy of a country a test of citizenship. For resident aliens owe a lo-
cal and temporary allegiance to the state wherein they live and are
amenable to its ordinary laws. But where the two characteristics of
allegiance and protection are found in their completeness and together,
there citizenship exists.
Native Bom Citizens.
The fourteenth amendment divides the citizens of the United States
into two classes. First, those who are bom in the United States and
subject to the jurisdiction thereof.* Second, those who are naturalized
in the United States and subject to the jurisdiction thereof. In order
B Allegiance is the obedience dne to the sovereign ; and persons bom in the
allegiance of the king are his natural subjects and no aliens. The allegiance
is not limited to any spot, and Is due to the king in his natural capacity,
rather than his political capacity. CalYin*s Case, 2 How. St Tr. 559. As the
constitution nowhere defines the meaning of the words "citizen of the United
States," except by the declaration on that subject in the fourteenth amend-
ment, resort must be had to the common law, the principles of which were
familiar to the framers of the constitution. United States ▼. Wong Kim Ark,
109 U. S. 049, 18 Sup. Ct 456, 42 L. Ed. 890. The character or attribute of
having ''citizens" can belong only to a sovereign state or nation ; legally there
is no such thing as being a citizen of a county or any other municipality. De-
vanney v. Hanson, 60 W. Va. 3, 53 S. E. 603. The mode and manner of ascer-
taining the fact of citizenship is for congress to determine, and it may vest
the power to determine such fact exclusively In executive officers. United
States V. Lee Huen (D. €.) 118 Fed. 442. See ^'Citizens,** Dec. Dig. (Key No.)
I 2; Cent. Dig. % 1.
• An act of congress passed in 1866 provides that "all persons bom In the
United States, and not subject to any foreign power, excluding Indians not
taxed, are declared to be citizens of the United States." Bev. St U. S. i 1992
(U. S. Oomp. St 1901, p. 1268).
634 POLITICAL AND PUBLIC RIGHTS. (Ch. 19
to belong to the first class two things must concur. The person must
have been born within the United States and subject to the jurisdic-
tion thereof. This jurisdiction ''must at the time be both actual and
exclusive. The words mentioned except from citizenship children
bom in the United States of persons engaged in the diplomatic service
of foreign governments, such as ministers and ambassadors, whose
residence, by a fiction of public law, is regarded as a part of their own
country. This extra-territoriality of their residence secures to their
children born here all the rights and privileges which would inure to
them had they been bom in the country of their parents. Persons
born on a public vessel of a foreign country, whilst within the waters
of the United States and consequently within their territorial jurisdic-
tion, are also excepted. They are considered as bom within the coun-
try to which the vessel belongs. In the sense of public law, they are
not bom within the jurisdiction of the United States."^ So if a
stranger or traveler passing through the country, or temporarily re-
siding here, but who has not himself been naturalized and who claims
to owe no allegiance to our government, has a child born here, who
goes out of the country with his father, such child is not a citizen of
the United States, because he was not subject to its jurisdiction.' But
the children, bom within the United States, of permanently resident
aliens, who are not diplomatic agents or otherwise within the excepted
classes, are citizens.* And this is true even where the parents belong
to a race of persons (such as the Chinese) who cannot acquire citizen-
ship for themselves by naturalization.^* Children of American par-
T In re Look Tin Sing (C. C.) 21 Fed. 905. Bee "Citizens,'* Dec Dig. (Key
No.) § S; Cent, Dig. | «.
« Miller, Const. 279.
• United States v. Wong Kim Ark, 169 U. 9. 649, 18 Sup. Ct 456, 42 L. Ed.
890; In re Wong Kim Ark (D. 0.) 71 Fed. 382; In re Glovanna (D. 0.) 03
Fed. 659; United States y. Rhodes, 1 Abb. U. S. 28, Fed. Gas. No. 16,151;
Stadtler r. School Dlst. No. 40, 71 Minn. 311, 73 N. W. 956 ; Ehrllch v. Weber,
114 Tenn. 711, 88 S. W. 188. A dilld bom within the United States and sub-
ject to the Jurisdiction thereof does not lose his citizenship by the fact that
his father afterwards renounces his allegiance and becomes a subject of a
foreign power. Lamoreaux ▼. Attorney General, 89 Mich. 146, 50 N. W. 812.
See "Citizens,'' Dec. Dig. (Key No.) I S; Cent. Dig. I 2.
10 United States y. Wong Kim Ark, 169 U. S. 649, 18 Sup. Gt 456, 42 L. Ed.
890 ; Sing Tuck v. United States, 128 Fed. 592, 63 C. a A. 199 ; Lee Sing Far
y. United States, 94 Fed. 834, 35 C. C. A. 327 ; In re Wong Kim Ark (D. O.) 71
Fed. 382 ; In re Look Tin Sing (a a) 21 Fed. 905. See "CUizena," Dec Dig.
(Key No,) | 3; Cent. Dig. | 2.
5§ 234-239) oinzBNSHip. 635
ents bom abroad are also considered as within the privilege of citizen-
ship, if the residence of their parents abroad was only temporary. An
act of congress, passed before the fourteenth amendment, but prob-
ably not repealed by it, provides that persons born out of the limits
and jurisdiction of the United States, whose fathers are, at the time
of such birth, citizens of the United States, shall be deemed and con-
sidered citizens of the United States; provided, however, that the
rights of citizenship shall not descend to persons whose fathers never
resided in the United States.^ ^ This statute is in affirmance of the
common law. "By the common law, when a subject is traveling or
sojourning abroad, either on the public business or on a lawful oc-
casion of his own, with the express or implied license and sanction
of the sovereign, and with the intention of returning, as he con-
tinues under the protection of the sovereign power, so he retains the
privileges and continues under the obligations of his allegiance, and
his children, though born in a foreign cotmtry, are not bom under
foreign allegiance, and are an exception to the rule which makes the
place of birth the test of citizenship." **
Women and Children.
We have said that citizenship does not necessarily include the right
of voting. This is apparent from the language of the fourteenth
amendment, which does not declare that "all adult males" are citizens,
but that "all persons" bom or naturalized in the United States and
subject to the jurisdiction thereof are citizens of the United States.
It follows from this that females and minors are equally citizens of
the United States, if they fulfill the conditions as to birth or naturali-
zation, as are those invested with the suffrage.^*
11 Rev. St. n. S. i 1993 (U. S. Comp. St 1901, p. 1268). But one who was
bom in Canada, of parents of African blood bom in Virginia and held there
as slaves until they emigrated to Canada, does not, by removing to the United
States, become a citizen. The case of such a person is not covered either by
the fourteenth amendment or by the act of congress mentioned. Hedgman v.
Board of Registration, 26 Mich. 51, 12 Am. Rep. 207. Bee **CUizens," Deo.
Dig. (Key No.) §| 2, 9; Cent. Dig. H 9, I4.
It Ludlam v. Ludlam, 31 Barb. (N. Y.) 486. And see United States v. Wong
Kim Ark, 168 U. S. 649, 18 Sup. Ct 456, 42 L. Bd. 890 ; State r. Jackson, 79
Vt 504, 66 Ati. 657, 8 L. R. A. (N. S.) 1246. See ''CitUsener Dec. Dig. (Key
No.) 19; Cent. Dig. I 9.
it Minor ▼. Happersett, 21 WaU. 162, 22 L. Bd. 627. See ^'Citizens;' Deo.
Dig. (Key No.) I 2j Cent. Dig. | 1.
636 POLITICAL AND PUBLIC BIQHT8. (Cfa. 19
CorporaHons.
Although a private corporation is r^arded as a ''person'' for many
legal purposes, yet as it can neither be bom nor naturalized, it cannot
be considered as a citizen of the United States, under the provisions
of the amendment**
Indians,
In regard to the Indians, it has been said: "Neither are the orig-
inal inhabitants of the country citizens so long as they preserve their
tribal relations and recognize the headship of their chiefs, notwith-
standing that, as against the action of our own people, they are un-
der the protection of the laws, and may be said to owe a qualified
allegiance to the government When living within territory over
which the laws, either state or territorial, are extended, they are pro-
tected by and at the same time held amenable to those laws in all
their intercourse with the body politic and with the individuals com-
posing it But they are also, as a quasi foreign people, regarded as
being under the direction and tutelage of the general government,
and subjected to peculiar regulations as dependent communities. They
are 'subject to the jurisdiction' of the United States only in a much
qualified sense, and it would obviously be inconsistent with the semi-
independent character of such a tribe, and with the obedience they
are expected to render to their tribal head, that they should be vested
with the complete rights, or, on the other hand, subjected to the full
responsibilities, of American citizens." *• And it is held that an In-
dian, born in the United States and a member of a tribe, cannot, by
merely separating himself from his tribe and taking up his residence
among white citizens, become a citizen and claim the right to vote.
14 Paxil V. Virginia, 8 Wall. 168, 19 L. Ed. 857; Insurance Co. v. New Or-
leans, 1 Woods, 85, Fed. Cas. No. 7,052 : Western Turf Ass'n ▼. Greenberg, 204
U. S. 359, 27 Sup. Ct. 384, 51 L. Ed. 520 ; Board of EducaUon v. Illinois* 203
U. S. 653, 27 Sup. Ct 171, 61 L. Ed. 314 ; Orient Ins. Co. v. Daggs, 172 U. S.
557, 19 Sup. Ct 281, 43 Ia Ed. 552 ; JEtna Ins. Co. v. Brlgham, 120 Oa. 925,
48 S. E. 348 ; Pittsburgh, C, C. & St L. Ry. Co. y. Llghtheiser, 168 Ind. 438.
78 N. E. 1033 ; Fire Department of City of New York v. Stanton, 28 App. Dlv.
334, 61 N. Y. Supp. 242 ; Debnam y. Southern Bell Telephone & Telegraph Co.,
126 N. C. 831, 36 S. B. 269, 65 L. R. A. 915 ; Cook y. Howland, 74 Vt 393, 52
Atl. 973, 59 L. R. A. 338, 93 Am, St Rep. 912 ; Hawley y. Hurd, 72 Vt 122,
47 Atl. 401, 52 L. R. A. 196, 82 Am. St Rep. 922 ; Cowardln y. Unlyersal Life
Ins. Co., 32 Grat (Va.) 446. See **Oitigena;' Deo. Dig. (Key No.) | 2; Cent.
Dig, S 16.
15 2 Story, Const i 1933.
§S 234-239) oinzENSHiP. 637
Said the court: '^Indians born within the territorial limits of the
United States, members of, and owing immediate allegiance to, one
of the Indian tribes (an alien though dependent power), although
in a geographical sense bom in the United States, are no more 'born
in the United States and subject to the jurisdiction thereof,' within
the meaning of the first section of the fourteenth amendment, than
the children of subjects of any foreign government bom within
the domain of that government, or the children, bom within the United
States, of ambassadors or other public ministers of foreign nations.
Such Indians, then, not being citizens by birth, can only become citi-
zens in the second way mentioned in the fourteenth amendment, by
being 'naturalized in the United States,' by or imder some treaty or
statute." »•
Naturalisation.
This is the act or process by which an alien, renouncing his allegi-
ance to his former sovereign, is accepted as a citizen and invested with
all the rights and privileges attaching to that status, the same as if
he were a natural bom subject of the government. The power to
establish a uniform mle of naturalization is vested in congress by
the constitution, and this power is exclusive of any like power in the
states. This subject has been fully discussed in connection with the
powers of congress. It remains to be here stated, as bearing specially
on the question of citizenship, that the citizenship of a head of a
family determines that of his wife and minor children; hence if a
woman who is an alien marries a citizen of the United States, she at
once takes his status and becomes an American citizen, without being
otherwise naturalized;^^ and the infant children of an alien, father,
though bom abroad, if dwelling within the United States at the time
of his naturalization, become American citizens by virtue of such nat-
uralization, though this is not tme of a child who has then attained
!• Elk ▼. Wilkins, 112 U. S. 94, 5 9ap. Ot 41, 28 L. Ed. 643 ; Jackson v.
United States, d4 Ct GL 441. A citizen of the United States who becomes a
member of an Indian tribe by adoption does not lose his citizenship. French
V. French (Tenn. Ch. App.) 52 S. W. 517. See **CUieenSt** Dec, Dig, (Key No,}
i t; Cent. Dig. | 15.
17 Hopkins T. Fachant, 130 Fed. 839, 65 C. 0. A. 1 ; U. S. t. Williams (D. C.)
173 Fed. 626 ; I>orsey t. Brigham, 177 111. 250, 52 N. BL 308, 42 L. R. A. 800,
69 Am. 8L Rep. 228; People v. Newell, 1 How. Pra& (N. S. [N. Y.]) 8; Rev. St
U. S. i 1994 (U. S. Qompi St 1901« p. 1269. See *ViiUen$/* Dee. Dig. (Key No.)
i 7; Cent Dig. I 6.
638 POLITICAL AND PUBLIC RIGHTS. (Ch. 19
his majority.* • The proceedings in a court of record under the nat-
uralization laws are judicial and result in a judgment which is entitled
to the same evidential force as other judgments, and which can be
impeached only on like grounds.**
Expatriation,
This is a correlative to naturalization, or rather, it is a prerequisite
to it. The right of expatriation is the right of a man to change his
country and allegiance at will. It is the right, on removing from one
land to another, to sever his political connection with the former, and
be exempt from personal or political duties toward it, and to acquire
the rights and standing of a citizen in the latter. An act of congress
declares that "expatriation is a natural and inherent rig^t of all
people, indispensable to the enjoyment of the rights of life, liberty,
and the pursuit of happiness;" and "any declaration, instruction,
opinion, order, or decision of any officer of the United States, which'
denies, restricts, impairs, or questions the right of expatriation, is
inconsistent with the fundamental principles of the republic." ** And
the decisions of the courts are in accordance with this declaration.**
DOUBLE CirXZEHSHIP IH THE UHITED STATES.
S40. Wo kave, la ojut politieal mjmtmvkf a soTenuBoat of tho UBitod
Statoo mmA m soromaioat of oaok of tkm soroval stmtoo. EaoIi of
thoso KOTomaieBto is distimet front ike otkera, mad oaok has
eitiioiu of ito own, who owo it allesiAiioo, mmA whoso vishts,
withim Its JwlsdlotioB« it atust protoot. The saaio porsoa aiay
bo at tho samo tiaM a oitisea of tho Uaitod Statos aad a eiti-
som of a stato. Bat his vishts of eitiseaship aader oao of thoso
KOTonuaoats will ho difloreat froai thoso whioh holoas to hiss
aador tho other.
f United States t. Williams (C. C.) 132 Fed. 894; Dorsey v. Brigham, 177
IlL 250, S2 N. E. 303, 42 L. R. A. 809, 09 Am. St Rep. 228. See **Citizen8,"
Dec. Dig, (Key TfoJ § d; Cent. Dig. | 10.
i*Pint8cli Ck>mpre88lDg Co. ▼. Bergin (C. C.) 84 Fed. 140; People v. Qul-
Jada, 154 Oal. 243, 97 Pac. 689. See '* Aliens,'* Dec. Dig. (Key No.) | 70; Cent.
Dig. i 155; "C^teerw," Dec. Dig. (Key No.) I 10; Cent. Dig. I 17.
20 Key. St U. & i 1999 (U. S. Oomp. St 1901, p. 12G9).
ai In re Look Tin Sing (C. 0.) 21 Fed. 905 ; Jennes v. Landes (C. C.) 84 Fed.
73 ; State v. Jackson, 79 Vt 604, 65 Atl. 657, 8 L. R. A. (N. S.) 1245. Where
a woman wbo Is a citizen of the United States marries an alien, she does not
lose her citizenship bo long as she continues to reside In the United States;
bat If she removes with him to his own country, her political status follows
his. Wallenburg y. Missouri Paa Ry. Co. (C. G.) 159 Fed. 217; Moore y.
§ 240) DOUBLB GITIZBN8HIP IN THE UNITED 8TATfi& 639
"The distinction between citizenship of the United States and citi-
zenship of a state is clearly recognized and established [by the four-
teenth amendment]. Not only may a man be a citizen of the United
States without being a citizen of a state, but an important element is
necessary to convert the former into the latter. He must reside within
a state to make him a citizen of it, but it is only necessary that he
should be born or naturalized in the United States to be a citizen of
the Union. It is quite clear, then, that there is a citizenship of the
United States and a citizenship of a state, which are distinct from
each other and which depend upon different characteristics or cir-
cumstances in the individual." ** A person, therefore, may be a
citizen of the United States without being a citizen of any particular
state. And this is the condition of citizens permanently resident in
the District of Columbia and in the territories.** Since the power of
naturalization is exclusively vested in congress, the states cannot con-
vert aliens into citizens of the United States. Whether the state
can clothe an alien with the privileges of its own citizenship, in ad-
vance of his naturalization by federal law, is uncertain.'^ But there
is nothing to prevent the state from giving him the right of suffrage,
the right to inherit and transmit property, and all other rights gener-
ally deemed to be appurtenant to citizenship, except the right to be
subject to the federal jurisdiction and to claim the benefit of federal
law as a citizen of the United States. On the other hand, the United
States can naturalize a foreigner, but cannot make him a citizen of
any particular state. That depends upon his own choice. He be-
comes a citizen of that state in which he shall reside. But the state
cannot withhold the privileges of its citizenship from any person
bom or naturalized in the United States and subject to the jurisdic-
Rnckgaber, 114 Fed. 1020, 52 C. C. A. 687. See **Citizen8» Dec. Dig. (Key
No.) I IS; Cent. Dig. H 20-22.
"United States v. Cruikshauk, 92 U. S. 542, 23 L. Ed. 588; Slauj^bter-
honse Cases, 16 Wall. .^6, 21 L. Ed. 804 ; Qardina v. Board of Registrars (Ala.)
48 South. 788; Cory v. Carter, 48 Ind. 327, 17 Am. Rep. 73a See ''Citizens;'
Dec. Dig. (Key Vo.) % 11; Cent. Dig. 1 18.
ss Prentiss v. Brennan, 2 Blatchf. 182, Fed. Oas. No. 11,385; Plcquet y.
Swan, 6 Mason, 35, Fed. Cas, No. 11,134. See **Citizen9,** Dec. Dig. (Key No.)
i 11; Cent. Dig. I 18.
t4 In McDonel ▼. State, 90 Ind. 320, it is held that one may be a citizen of
a state and yet not a citizen of the United States. But on the other hand,
nothing which a state can do will Invest a foreigner with the rights and privi-
leges of a citizen of the United States. Mayer v. United States, 38 Ct CL 653.
See "Citizens;* Dec Dig. (Key No.) % 11; Cent. Dig. i 18.
640 FOUTICAL AMD PUBLIC BIOHT8. (Ch. 19
tion thereof who shall choose to dwell within its domain. The most
that the state can require is a bona fide intention to become one of
its residents. And perhaps it is within the competence of the state
to fix a term of residence within its limits before the rights of citizen-
ship shall attach*
PBTinUBGES OF CITIZEH8 OF THE UHTTED STATES.
241. Tbe fovirteemtli ameadmeat also deelmres thakt ao state alaall
Buike or enf oroe mmj law wUeh akall abridge tlie prtTileses or
immviiitioo of oitiBeBS of tlM United States.
In this connection, it is important to observe that the privileges
and immunities here protected are those of citizens of the United
States (not of citizens of a state) and that they are such only as be-
long to those citizens in virtue of their citizenship.** Another part of
the constitution guaranties to the citizens of each state the privileges
and immunities of citizens in the several states. But the fourteenth
amendment is not supplementary to that clause and has no relation
to it. It deals with a different matter, viz., the rights of citizens of
the United States as such. It would perhaps be too narrow a con-
struction to say that these rights must all be political in their char-
acter, or related to the status of citizenship. But it is clear that they
must have some relation to the legitimate operations of the general
government, to tlie purposes for which it was created, or to the powers
which are committed to it.** The right of marriage, the right of the
descent of property, the right to the control of children, the right to
sue for property and to have it protected, and, in general, the pro-
tection of Ufe, liberty, and the pursuit of happiness,*^ are all founded
» Wadleigb v. Newhall «X G.) 136 Fed. 941 ; State ▼. Bates, 14 Utah, 293,
47 Pac. 78, 43 L. R. A. 33; State v. Holden, 14 Utah, 71, 46 Pac. 756, 37 L.
R. A. 103. See **CoMtitutional Law,'* Dec. Dig, (Key No.) § 206; Cent, Dig.
§ 625.
26 Klrtland v. Hotcbkiss, 100 U. S. 491, 25 L. Ed. 558; Meehan v. Board of
Excise Com'rs of Jersey Caty, 73 N. J. I/aw, 382, 64 Atl. 689. The adi^tion of
the fourteenth ameDdment did not have the elTect of making aU the provi-
sions contained in the first ten amendments operative in the state courts.
Maxwell v. Dow, 176 U. S. 581, 20 Sup. Ot. 448, 494, 44 L. Ed. 597. See **Cof^
stitutional Law,** Dec. Dig. (Key No.) I 206; Cent. Dig. U 625-6^8.
aT Owen County Burley Tobacco Soc. v. Brumback, 128 Ky. 137, 107 S. W.
710, 32 Ky. Law Rep. 916 ; People y. Van Pelt, 130 Mich. 621, 90 N. W. 424.
It is not a privilege of citizens of the United States to play basebaU on Sun-
8 241) PRIVILBOES OF CITIZENS OF THE UNITED STATES. 641
in the relation between the state and its citizens, and are not rights
which belong to the citizens of the United States as such. But the
rights which they do possess in that character are also numerous and
important. For example, in a case in which a state tax on interstate
travel was held void, it was said to be the right of a citizen of the
United States "to come to the seat of government to assert any claim
he may have upon that government, to transact any business he may
have with it, to seek its protection, to share its offices, to engage in
administering its functions. He has the right of free access to its
seaports, through which all operations of foreign commerce are con-
ducted, to the subtreasuries, land offices, and courts of justice in the
several states.* • So it was said in another case: "Another privilege
of a citizen of the United States is to demand the care and protection
of the federal government over his life, liberty, and property when
on the high seas or within the jurisdiction of a foreign government
The right to peaceably assemble and petition for a redress of g^ev-
ances, the privilege of the writ of habeas corpus, are rights of the
citizen guarantied by the federal constitution. The right to use the
navigable waters of the United States however they may penetrate
the territory of the several states, and all rights secured to our citi-
zens by treaties with foreign nations, are dependent upon citizenship
of the United States and not citizenship of a state. One of these
privileges is conferred by the very article under consideration. It is,
that a citizen of the United States can, of his own volition, become
a citizen of any state, by a bona fide residence therein." *• Without
attempting a complete enumeration, we may add several to the cata-
logue of rights herein given. Thus, it is undoubtedly a right of a
citizen of the United States as such to share with others in the benefit
of the postal system, to have access to the courts of the United States
without let or hindrance by the states, to inspect the records of those
courts, to take advantage of the laws opening the public lands to
settlement or purchase, to take out patents or copyrights, to buy,
sell, or devise United States securities, to take the benefit of national
bankrupt laws, and all this without any abridgment, hindrance, or
day, if the state chooses to forbid it State ▼. Hogriever, 152 Ind. 062, 53 N.
B. 021, 45 L. R. A. 504. Bee "ConsHtutiandl Law," Dec, Dig. (Key No,) | B06;
€etU. Dig, H 6tS^l8.
" OandaU v. Nevada, 6 WalL 85, 18 L. Bd. 746. Bee **Conetitutional Law,''
Dec Dig. (Key No.) H 85, 206; Cent. Dig. U 150, 625-^48.
>• Slaughterhouse Cases, 16 Wall. 86, 21 L. Ed. 894. Bee "^OonetitutiotuU
Law,*' Dec Dig. (Key No.) | 20$; Cent. Dig. |i 625^48.
Bl..CONST.L.(8D.BD.)-^il
642 POLITICAL AND PUBLIC RIGHTS. (Ch. 19
taxation by the states.*^ But this part of the constitution does not
abridge the right of the states to regulate the pursuit of given avoca-
tions, the holding of public office, or industrial combinations. These
are not privileges of citizens of the United States, but rights or priv-
ileges proceeding from, or governed by, the laws of the several
states. Hence there is no constitutional objection on this ground to
statutes of the several states which restrict or regulate the right to
practise as an attorney at law,** or as a physician or surgeon,** or to
engage in the manufacture or sale of intoxicating liquors,* • or in other
so The exercise by a citizen of the United States of the right to make a
homestead entry upon unoccupied public lands, conferre4 by act of congress,
is the exercise of a right secured by the constitution and laws of the United
States. U. S. v. Waddell, 112 U. S. 76, 5 Sup. Ct 36, 28 Ia Ed. 673. In the
case of Logan v. U. S., 144 U. S. 263, 12 Sup. Ot 617, 36 L. Ed. 429, the fact is
brought out that there are rights of citizens of the Union, as sudi, not spedf-
icaUy created by any clause of the constitution, but derivable from the su-
premacy of the federal government within its own sphere. Gray, J., observed:
"Every right created by, arising under, or dependent upon the constitution of
the United States may be protected and enforced by congress by such means
and in such manner as congress, in the exercise of the correlative duty of pro-
tection, or of the legislative powers conferred upon it by the constitution, may
in its discretion deem most eligible and best adapted to attain the object
* * * In the case at bar, the right in question does not depend upon any
of the amendments to the constitution, but arises out of the creation and es-
tablishment, by the constitution itself, of a national government, paramount
and supreme within its sphere of action. Any government' which has power
to indict, try, and punish for crime, and to arrest the accused and hold them
in saf Steeping until trial, must have the power and the duty to protect against
unlawful interf^ences its prisoners so held, as well as its executive and Judi-
cial officers charged with keeping and trying them." See "Constitutional
Law,** Dec. Dig. (Key No.) S 206; Cent. Dig. {{ 625-648.
siBradwell v. Illinois* 16 Wall. 130, 21 L. Ed. 442. See "Constitutional
Law,** Dec. Dig. (Key Ifo.) { 206; Cent. Dig. { 629.
>2 Parks V. State, 199 Ind. 211, 64 N. E. 862, 59 L. R. A. 190; State Board
of Health v. Roy, 22 R. I. 538, 48 AU. 802; France v. State, 57 Ohio St 1,
47 N. E. 1041. See "Constitutional Law,** Dec. Dig. (Key No.) S 206; Cent.
Dig. { 629.
38 Durein r. State of Kansas, 208 U. S. 613, 28 Sup. Ct 567, 62 L. Ed. 645 ;
Bartemeyer v. Iowa, 18 Wall. 129, 21 L. Ed. 929; Jacobs Pharmacy Go. v.
aty of AUanta (a O.) 89 Fed. 244; Jordan v. Evansville, 163 Ind. 512, 72 N.
E. 544, 67 L. R. A. 613 ; Meehan v. Board of Excise Com'rs of Jersey City, 73
N. J. Law, 382, 64 Atl. 689; Hoboken v. Goodman, 68 N. J. Law, 217, 51 Atl.
1092; State v. Richardson, 48 Or. 309, 85 Pac. 225, 8 L. R. A. (N. S.) 362;
Danville v. Hatcher, 101 Va. 523, 44 S. B. 723. ^^ee "Constitutional Law,**
Deo. Dig. (Key No.) | 206; Cent. Dig. | 631,
§ 211) PRIVILEGES OF CITIZENS OF THE UNITED STATES. 643
forms of business or trades which are so far affected with a public
interest as to be legitimate subjects for regulation under the police
power ; •* nor to statutes which restrict the right to hold office by the
establishment of a civil service,' • or which give the preference in such
matters to veterans of the Civil War; •• or which restrain or prevent
the formation of trusts and monopolies,*^ or which limit to residents
of the state the privilege of acting as an executor, administrator, or
assignee for the benefit of creditors.* • And although, by other pro-
visions of the constitution, the states arc prevented from discriminat-
ing unjustly against non-residents, this particular clause of the four-
teenth amendment does not confer upon non-residents (being citizens
of the United States) any other or greater privileges or immunities
than those enjoyed by citizens of the state.** Nor has it any relation
to proceedings in the state courts, whether civil or criminal, so that
such matters as the right to trial by jury and the privilege against /
self-crimination are left to be regulated by the several states.**
*« St George v. Hardie, 147 N. C. 88, 60 S. E. 920 Gicensing of pUotB) ;
Commonwealth v. Keary, 14 Pa. Super. Ct 583 (ticket scalping). But com-
pare State y. Smith, 42 Wash. 237, 84 Pac. 851, 5 L. R. A. (N. S.) 674, 14 Am.
St Rep. 114, as to law for licensing of plnmhers. See **Oon8iUutianal Law,**
Dec Dig. (Key No.) | 206; Cent. Dig, H et9, SS2.
•B People y. Loeffler, 175 111. 585, 51 N. E. 785. See **Constitutional Law,**
Dec. Dig. (Key No.) { 206; Cent. Dig. | 625.
s« Shaw y. City Council of Marshall town, 131 Iowa, 128, 104 N. W. 1121,
10 L. R. A. (N. a) 825 ; In re Wortman (Sup.) 2 N. T. Supp. 324. See ''CoMti-
tutUmal Law,** Dec. Dig. (Key No.) | 206; Cent. Dig. | 6iio.
9f Attorney General y. A. Booth & Co., 143 Mich. 89, 106 N. W. 86a See
United States y. Moore (O. C.) 129 Fed. 630, as to labor organizations. See
^'Constitutional Law," Dec. Dig. (Key No.) S 206; Cent. Dig. { 625.
s 8 In re McWhlrter*8 Estate, 235 111. 607, 85 N. EL 918; Duryea y. Muse. 117
Wis. 399, 94 N. W. 365. See "Con8titution4il Law,** Dec. Dig. (Key No.) |
206; Cent. Dig. S 6S5.
••Brown y. Birmingham, 140 Ala. 690, 87 South. 178; Ballard y. Hunter,
204 U. S. 241, 27 Sup. Ct 261, 51 L. Ed. 461. But a statute requiring an
annual license fee for canyassing and selling by sample certain artides pro-
duced out of the state, not injurious to health or morals, while no fee is re-
quired in the case of other articles, is repugnant to this clause of the con-
sUtuUon. State y. Bayer, 34 Utah, 257, 97 Pac. 129, 19 L. R. A. (X. S.) 297.
As to restriction or regulation of foreign corporations, see Board of E3duca-
tion y. lUinois, 203 U. S. 553, 27 Sup. Ct 171, 51 L. Ed. 314; LoTerln &
Browne Co. y. Travis, 135 Wis. 322, 115 N. W. 829. See ''Constitutional Law,**
Dec. Dig. (Key No.) i 206; Cent. Dig. | 625.
40 Twining y. State of New Jersey, 211 U. S. 78, 29 Sup. Ct 14, 53 L. Ed. 97 ;
MaxweU y. Dow, 176 U. S. 581, 20 Sup. Ct 448» 44 L. Ed. 597; People r.
J
MA POLITICAL AND PUBLIC RIGHTS. (Ch. 19
THE BIOHV OF SinTRAOB.
S48. The riclit •< snffims^ is a politleal vlchtt mmd is resiilat«d 1>7
•aoli sovenuBMit in aooordaaeo witk its owm views of poliey
mmA ezpedienoy*
243, 1m tUs eountry tlM richt to Tote is not ooaf ovrod or svArantiod
by the federal ooastitiitioiiy but is left to be llzed and regmlated
by tke soToral statest snbjoot, bowoTor, to tbe limitatioBS eon-
taimed in tbe f oarteentb and flf teentb amendments.
Wbere tbe oonstitntiom of tbe state defines tbe qnallfleations of
tboso wbo sball be Tested witb tbe eleetiTo franoblse* sneb
qnaHfl eations oannot be altered by tbe lesislatvre. Bnt tbis
does not deprive tbe lesislatvre of tbe power to rosnlate tbe
ozereise of tbe ri^bt or tbe manner of oondnetins eleetions.
"Suffrage" means a vote, the act of voting, or the right or privilege
of casting a vote at public elections. The term is not usually applied
to the prerogative of voting at elections held by corporations or other
private associations, but is restricted to such elections as are held un-
der authority of government, general or local. The right of suffrage
is also popularly called "the elective franchise."
It has sometimes been contended that the right to take part in the
administration of government or in the choice of those who are to
make and execute the laws, by means of the ballot, is a natural right,
standing in the same category with the rights of life, liberty, and
property. It is perhaps true that those who are affected by the opera-
tions of government, and who are capable of exercising an independ-
ent and intelligent will in the choice of means or agents for carrying
on its functions, should be admitted, without distinction as to sex,
age, or race, to the privilege of expressing that will at the polls, and
that this universality of suffrage is implied in the theory of a repre-
sentative government. But it remains not less true that the right
of suffrage is not a natural right, but a political right ; not a personal
right, but a civil right. It does not owe its existence to the mere
fact of the personality of the individual, but to the constitution of
civil government. Nor is it even a necessary attribute of citizenship.
It is conferred, limited, or withheld at the pleasure of the people
Botkln, 9 Gal. App. 244, 98 Pac. 861 ; Walker v. SauTlnet, 92 U. S. 90, 23
L. Ed. 678; Iowa Cent R. Co. y. Iowa, 160 U. S. 389, 16 ^p. Ct 344, 40 L.
Ed. 467. Bee **Oonstitutional Law," Deo. Dig. (Key No.) i 206; Cent. Dig.
ft sie-eiH.
8§ 242-244) THB filOHT OF SUFFRAGE. 646
acting in their sovereign capacity. Each state may define it in its
own constitution or empower its legislature to do so. And the right
of suffrage once granted may be taken away by the exercise of sover-
eign power, or forfeited for crime, under the laws of the state; and
if taken away by the same power which granted it, by the alteration
of the constitution, no vested right is violated.**
•
Federal Constitution does not Confer Right of Suffrage.
As a general rule, and except in some few details, the constitution
of the United States does not regulate the right of suffrage, even as
regards the choice of its own officers. The matter is left to the states.
They grant or withhold the right of voting and determine the quali-
fications of those who shall possess it. In the case of Minor v. Hap-
persett,** the supreme court of the United States declared that they
were "unanimously of the opinion that the constitution of the United
States does not confer the right of suffrage upon any one." But in
a later decision the court explained that it did no^ intend thereby to
say that when the class or the person entitled to vote at federal elec-
tions was ascertained by state laws, his right to vote for a member
of congress was not fundamentally based upon the constitution, which
created the office of member of congress, and declared that it should
be elective, and pointed to the means of ascertaininof who should be
the electors. In the earlier case, the court was merely combating the
argiunent that the right of suffrage was conferred by the constitution
upon all citizens, and therefore upon women as well as men.*'
Qualifications Determined by the States,
The federal constitution, in providing that "the house of representa-
tives shall be composed of members chosen every second year by the
people of the several states, and the electors in each state shall have
the qualifications requisite for electors of the most numerous branch
«i Ridley t. Sherbrook, 3 Gold. (Tenn.) 509; Anderson y. Baker, 2B Md.
681; People v. Barber, 48 Hun, 198; Boyd v. Mills, 63 Kan. 694, 87 Pac. 16,
26 L. R. A. 486, 42 Am. St. Rep. 306 ; RnsseU t. State, 171 Ind. 623, 87 N. B.
13 ; State T. Qoldthait (Ind.) 87 N. B. 133. Bee **El€CiUm9," Dea Dig, (Key
No,) H t-t8; Cent. Dig. || I-IS.
«s 21 Wall. 162, 22 L. Ed. 627. And see U. 8. y. Anthony, 11 Blatchf. 200,
Fed. Oas. No. 14,459; Van Valkenburg t. Brown, 43 Gal. 43^ 13 Am. Rep.
13a See **Electionsr Dec Dig. (Key No.) 1 11; Cent. Dig. | 8.
«s Bx parte Yarbrough, 110 U. S. 651, 4 Sup. Ot 152, 28 L. Bd. 274. And
see Ctougar y. Tlmberlake, 148 Ind. 38, 46 N. B. 339, 37 L. B. A. 644, 62 Am.
St Rep. 487. Bee '^Elections;' Deo. Dig. (Key No.) 1 11; Cent. Dig. i S.
^6 POLITICAL A2«D PUBLIC BIGHTS. (Ch. 19
of the state legislature," simply adopts, with reference to congressional
elections, the qualifications which each state may prescribe for its
own electors. The state, if it admits given persons to vote for the
members of its own lower house, cannot exclude the same persons
from voting for members of congress. But, subject only to the limi-
tations of the fourteenth and fifteenth amendments, to be hereafter
noticed, it rests entirely in the discretion of the state to prescribe
the qualifications of such persons. The result is that there is a singu-
lar and anomalous lack of uniformity in the qualifications of those
persons who elect the federal house of representatives, and, indirectly,
the senate and the President. In several of the states, unnaturalized
foreigners, after they have resided a certain time within the state,
are given the right to vote. In some states, the privilege of the bal-
lot is extended to women. In some, there is a property qualification.
In others, there is an educational qualification. But the constitution
has not given to the national government the power to establish a
uniform rule as to the qualifications of its own electors. Congress
may indeed make regulations as to the time, place, or manner of
holding elections for senators or representatives, or alter those di-
rected to be made by the states. (Const, art 1, § 4.) But this does
not touch the qualifications of the voters.
One more clause of the federal constitution requires notice in this
connection. It is the second section of the fourteenth amendment,
which provides that when the right to vote is denied by any state to
any of its male inhabitants who are twenty-one years of age and citi-
zens of the United States, or in any way abridged, except for par-
ticipation in rebellion or other crime, then the basis of representation
therein shall be reduced in the proportion which the number of such
male citizens shall bear to the whole number of male citizens twenty-
one years of age in such state. The purpose of this clause was of
course to induce the states to extend the elective franchise to the
colored race. But this was made obligatory by the fifteenth amend-
ment. Still, the language of the clause under consideration is gen-
eral. And it is possible to conceive of cases where, without any ref-
erence to race or color, the states might so restrict the right of suf-
frage as to render themselves liable to have their representation re-
duced.
The right to fix the qualifications of its electors being thus vested
in the state, subject to the few limitations above considered, it may
proceed to determine what persons shall be excluded from this privi-
§§ 242-241) THE BIGHT OF 8UFFBAOB. 647
lege, according to its own views of justice and policy. For the most
part, aliens and non-residents are excluded. But, as already observed,
the state may, if it chooies, confer the right to vote upon resident un-
naturalized foreigners. And since suffrage is not a necessary attri-
bute of federal citizenship, it would be competent for the state to
withhold the elective franchise from naturalized persons until they
have resided a certain time within its limits.^^ Naturalization makes
a man a citizen both of the United States and of the state where he
resides. But many other persons who are citizens have not the right
to vote. '"Each state has the undoubted right to prescribe the quali-
fications of its own voters. And it is equally clear that the act of nat-
uralization does not confer on the individual naturalized the right to
exercise the elective franchise. While other civil rights are conferred
by it, that of voting at elections for officers of the state is not one,
unless the party possess the other requisite qualifications, defined by
the state law, where citizenship is one of the necessary requisites to
its exercise." *• In most of the states, women are not invested with
this privilege, and in all, minors are excluded. Persons mentally
incapable of exercising a choice are generally excluded. And it is
entirely competent for the state to make the ability to read and write a
condition for registration for election purposes.** In many states,
also, it is provided that conviction of an infamous crime shall deprive
the offender of the right of suflFrage. But inspectors of elections have
no right to exclude the vote of an individual on the ground that the
person offering it is a criminal, where there is no evidence produced
before them of the conviction of such person for such crime and his
consequent forfeiture of the rights of citizenship.*^
Fifteenth Amendment.
The fifteenth amendment to the constitution of the United States
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 ac-
4« Pope T. Winiams, 96 Md. 59, 56 Ati. 543, 66 Ij. R. A. 398, 103 Am. St
Rep. 379 (affirmed, 193 U. S. 621, 24 Sup. Ct 573, 48 L. Ed. 817) ; State v.
Weber, 96 Minn. 422, 105 N. W. 490, 113 Am. St Rep. 630. See **ElectU>n8,*'
Dec. Dig. (Key No.) U t, iS, 19, 95; Cent. Dig. %% i, IS, U, 95, 96.
«B Spraggins v. Houghton, 3 111. 377. Bee **Elecii<m8y'* Dec. Dig. (Key No.)
i 18; Cent. Dig. | IS.
«• Stone y. Smith, 159 Mass. 413, 34 N. E. 521. Bee **Election8,** Dec. Dig.
(Key No.) U l-i8; Cent. Dig. H I-IS.
«T GotcheuB r. Matheson, 58 Barb. (N. Y.) 162. See "Electione^* Dec Dig.
(Key No.) || 89, 90; Cent. Dig. || 86, 87.
G48 POLITICAL AND PUBXJC RIGHTS. (Ch. 19
count of race, color, or previous condition of servitude.'* Of this
provision it has been said: "The fifteenth amendment does not
confer the right of suffrage upon any one. It prevents the states or
the United States, however, from giving preference in this particu-
lar to one citizen of the United States over another on account of
race, color, or previous condition of servitude. Before its adoption,
this could be done. It was as much within the power of a state to
exclude citizens of the United States from voting on account of
race, etc., as it was on account of age, property, or education. Now
it is not. If citizens of one race, having certain qualifications, are
permitted by law to vote, those of another, having the same quali-
fications, must be. Previous to this amendment there was no consti-
tutional guaranty against this discrimination; now there is. It fol-
lows that the amendment has invested the citizens of the United States
with a new constitutional right which is within the protecting power
of congress. This right is exemption from discrimination in the exer-
cise of the elective franchise on account of race, color, or previous
condition of ser\'itude." *• But it will be observed that it remains
within the power of the state to prescribe such qualifications for the
suffrage as it may please, provided that they apply equally to per-
sons of all races and colors.** Thus the amendment does not g^ve to
negroes the right to vote independently of such restrictions and regu-
lations (for example, as to age and residence) as are imposed by the
state constitution on white citizens.'* But the amendment, being a
part of the supreme law of the land, had the effect to annul those
provisions of the constitutions of several of the states which restricted
the exercise of the right of suffrage to white persons.*^
Qualifications Fixed by State Constitution.
Where the constitution of a state (as is usually the case) fixes the
qualifications of those who are to enjoy the right of suffrage, it is
«s U. S. T. Reese, 02 U. S. 214, 23 L. Bd. 5C3 ; IT. S. r. Harris, 106 U, S.
629. 637, 1 Sup. Ct 601, 27 L. Bd. 290 ; U. S. v. Crosby, 1 Hughes, 448, Fed.
Cas. No. 14,898. See Willis v. Kalmbach, 109 Va. 475, 64 S. B. 342, 21 L.
R. A. (N. S.) 1009. See *'Elcction9,*' Dec. Dig. (Key No,) i| 60, 61; Cent. Dig.
IS S6, 57.
«• Narr, Suffrage & Elections, 1; Morse, Citizenship, 1 143.
BoAnthony r. Halderman, 7 Kan. 50. See "Elections,*' Dec. Dig. (Key ?fo.)
1 11; Cent. Dig. | 8.
Bi Wood T. Fitzgerald, 3 Or. 56a See ^'Constitutiondl Law*' Dec Dig. (Key
No.) { 24; Cent. Dig. i 22; ^'Elections;' Dec Dig. (Key No.) i 11; Cent. Dig.
18.
/ /
§§ 242-244) THE BIQHT OF BUFFBAOS. 649
the intention that the standards so set up shall remain unalterable
until the popular will changes to such an extent as to involve an
alteration of the organic law. In this case, it is not within the consti-
tutional power of the state legislature to alter, modify, or dispense
with the qualifications determined by the constitution. It is not lawful
to enact statutes which would either exclude persons admitted by
the constitution, or admit persons whom the constitution would shut
out. No new or different qualifications can be prescribed, nor can -. jl
any of those named by the constitution be abrogated.''
Regulation of Elections.
When the constitution of a state prescribes certain qualifications
for voters, this contemplates and intends that the legislature shall
provide some mode of ascertaining and determining the existence of
those qualifications. Consequently a law requiring the registration
of voters is not invalid, unless it puts such unreasonable restrictions
upon the right of suffrage as operate actually to exclude from its
exercise persons or classes of persons entitled thereto.'* So also the
legislature may make rules relating to the method of voting, the giv-
ing of notice of elections, the creation and functions of election offi-
cers, the sufficiency of ballots, the powers and duties of canvassing
boards, and to punish fraud, violence, intimidation, bribery, and sim-
ilar oflFenses.'* The statutes enacting what is commonly called the
"Australian ballot law" or system of secret voting, have been gener-
ally sustained as constitutional in all their leading particulars." And
when the constitution provides that only ballots delivered to voters
within the polling place by the proper official shall be counted, this em-
powers the legislature to provide that no ballot shall be counted unless
S2 Chase v. Miller, 41 Pa. 408 ; McCafferty v. Ouyer, 59 Pa. 109 ; State v.
Adams, 2 Stew. (Ala.) 231, 239 ; State v. Tuttle, 53 Wis. 45, 9 N. W. 701 ;
Bourland v. Hildreth, 26 Cal. 161. See Goggeshall y. City of I>e8 Moines,
188 Iowa, 780, 117 N. W. 309, 128 Am. St Rep. 221. Bee ''Eleciions;* Dec.
Dig. (Key No.) { 60; Cent. Dig. | 56.
Bs Mills V. Green (C. C.) 67 Fed. 818 ; Mayor, etc., of Oity of Madison v.
Wade, 88 Oa. 699, 16 S. E. 21 ; People v. HoAnan, 116 IlL 587, 5 N. E. 590,
66 Am. Rep. 798 ; Oardlna v. Board of Registrars (Ala.) 48 South. 788. See
'^Elections,'* Dec Dig. (Key No.) U 19, 95, 96; Cent. Dig. if U, 95-97.
v« Pearson v. Board of Sap*rs of Brunswick Ck)nnt3% 91 Va. 322, 21 S. E.
488. Bee "Elections," Dec. Dig. (Key No.) 1 198; Cent. Dig. { 170.
88 See De Walt v. BarUey, 146 Pa. 529, 24 AU. 185, 15 L. R. A. 771, 28
Am. St Rep. 814 ; Rogers v. Jacob, 88 Ky. 502, 11 S. W. 513 ; Common Ooun-
dl of aty of Detroit v. Rush, 82 Mich. 532, 46 N. W. 951, 10 L. R. A. 171 ;
650 POLITICAL AND PUBLIC RIGHTS. (Ch. 19
indorsed "official ballot," and also with the name or initials of the
judge of election.'* It is also held that there is no constitutional ob-
jection to a law regulating the machinery of a political party in mak-
ing nominations of candidates for public office.'^
The federal constitution provides that **the times, places, and man-
ner of holding elections for senators and representatives shall be pre-
scribed in each state by the legislature thereof, but the congress may
at any time make or alter such regulations, except as to the place of
choosing senators." It is held that this section gives congress a
supervising power over the subject, and it may either make new reg-
ulations, or add to or modify those made by the state law; and any
regulations made by it which are inconsistent with those of the state
will necessarily supersede the state regulations.** While this provi-
sion adopts the state qualification as the federal qualification for the
voter, his right to vote is based upon the constitution, and not upon
the state law ; and congress has the constitutional power to pass laws
for the free, pure, and safe exercise of this right.**
FBEEBOM OF 8PEE0K AITO OF THE PBE88.
245. Tl&e flrst amendment to tbe oonstitiition of tke United States
proridee tliat oonceM sliall make no law abrldclns tbe free-
dom of epeeeh or of tke presi; and rimllar svA^iuitles of liber-
ty of epeeek and pnbUeatlon kave been tnoorporated in tke eon-
stltntlone of tke several states*
Meaning of Terms,
In respect to the privileges secured by this guaranty, and with re-
gard to responsibility for its abuse, there is no difference between
Ck)Ok V, State, 90 Tenn. 407, 16 S. W. 471, 13 I* R. A. 183 ; State v. Taylor,
220 Mo. 618, 119 S. W. 373. See "Elections," Dec. Dig, (Key }fo.) { 198; Cent.
Dig. i 170.
»• Slaymaker v. Phillips, 6 Wyo. 453, 42 Pac. 1049, 47 L. B. A. 842. See
''Elections," Deo. Dig. (Key No.) f i77; Cent. Dig. { 149.
BT In re House Bill No. 203, 9 Ck)Io. 631, 21 Pac. 474 ; State v. Michel, 121
La. 374, 46 South. 430; Kenneweg v. Allegany County 0>m*r8, 102 Md. 119,
62 Atl. 249; Ladd y. Holmes, 40 Or. 167, 66 Pac. 714, 91 Am. St. Rep. 457.
But see People v. Board of Election Oom'ni of City of Chicago, 221 IlL 9,
77 N. B. 321. See '"Elections," Dec. Dig. (Key No.) S 21; Cent. Dig. { IS.
SB Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717; Ex parte Clarke, 100
U. S. 399, 25 L. Ed. 715. See "Elections," Dec. Dig. (Key No.) | 24; Cent.
Dig. { 16.
»• Ex parte Tarbrough, 110 U. S. 651, 4 Sup. Ct 152, 28 L. Ed. 274. See
'"Elections," Dec. Dig. (Key No.) | 4; Cent. Dig. { 5.
§ 245) FREEDOM OF SPEECH AMD OF THE PBB88. 651
"speech" and "the press." It is a mistake to suppose that there is a
liberty of speech and a liberty of the press which are in any way dif-
ferent or distinct The constitutional provision is designed to insure
freedom for the expression of opinion; and it makes no difference
whatever whether the opinion be expressed orally or in print.
No Peculiar Privilege of Newspapers.
It has often been claimed that the publishers of newspapers, in
view of the peculiar nature of their business of gathering and dis-
seminating news, should have a more liberal exemption from liability
to the law of libel than persons engaged in other occupations. But
this claim has never been conceded by the courts. "The publisher of
a newspaper/' it is said, "possesses no immunity from liability in
publishing a libel, other or different than any other person. The law
makes no distinction between the newspaper publisher and any private
person who may publish an article in a newspaper or other printed
form; and if either abuses the right to publish his sentiments on
any subject and upon any occasion, he must defend himself upon
the same legal ground." •**
No New Right Created.
It is to be noticed that the constitutional guaranty here considered
does not create any new right not previously understood to belong to
the people. The language of the federal constitution, in declaring
that congress shall make no law "abridging" the freedom of speech
and of the press, implies that such freedom already existed, and only
intends that it shall not be impaired by any federal legislation. The
same construction is also to be put upon the similar provisions in
the state constitutions. It follows that, in determining the nature
of this freedom and its limitations, we are to have recourse to the law
as it existed at the time of the adoption of the constitutions, and that
•0 Bronson ▼. Bruce, 59 Mich. 467, 26 N. W. 671, 60 Am. Rep. 307; Sweeney
v. Baker, 13 W. Va. 158, 31 Am. Rep. 757; King v. Root, 4 Wend. (N. T.)
113, 21 Am. Dec. 102 ; Riley y. Lee, 88 Ky. 603, 11 S. W. 713, 21 Am. St Rep.
35S. The constitutional liberty of the press, when applied to newspapers,
consists of the right to publish freely whatever one pleases, and to be pro-
tected agafnst any responsibility therefor, except so far as the publication
is blasphemous, obscene, seditious, or scandalous. It is the right to speak
the truth, but does not include the right to scandalize courts or to libel pri-
vate citizens or public officers. State v. Shepherd, 177 Mo. 206, 76 8. W. 79,
99 Am. St. Hep. 624; licvert v. Daily States Pub. Co., 123 La. 594, 49 South.
206. See **Con9titutional Law,'' Dec. Dig. (Key No.) i 90; Cent. Dig. | 172;
Words and Phrases^ vol. 5, pp. 41S1~41S3.
652 POLITICAL AND PUBLIC BIGHTS. (Ch. 19
contemporary history may be consulted in order to ascertain the
meaning of the language employed.
^Meaning of the Guaranty.
"^ "It is plain," says Story, "that the language of this amendment im-
Iports no more than that every man shall have a right to speak, write,
and print his opinions upon any subject whatsoever, without any
trior restraint, so always that he does not injure any other person
jn his rights, person, property, or reputation, and so always that he
does not thereby disturb the public peace, or attempt to subvert the
, govemmenL" •* According to the supreme court of Ohio, "the lib-
"TTty of the press, properly understood, is not inconsistent with the
protection due to private character. It has been well defined as
consisting in the right to publish, with impunity, the truth, with good
motives and for justifiable ends, whether it respects government,
magistracy, or individuals." •* As respects criticisms upon public
officials or the government of the state or country, however, it is now
thoroughly imderstood that freedom of the press includes not only
exemption from previous censorship, but also immunity from punish-
ment or sequestration after the publication, provided that the com-
ments made keep within the limits of truth and decency, and are not
treasonable. The importance of this guaranty as a protection against
tyrannous oppression, and as a mainstay of popular government, can-
not be exaggerated. Says the same learned commentator: "A little
attention to the history of other countries in other ages will teach us
the vast importance of this right. It is notorious that even to this
day in some foreign countries it is a crime to speak on any subject,
religious, philosophical, or political, what is contrary to the received
opinions of the government or the institutions of the country, how-
ever laudable may be the design or however virtuous may be the
motive. Even to animadvert upon the conduct of public men, of
rulers, or representatives, in terms of the strictest truth and courtesy,
•1 2 Story, Const. | 1880. A city ordinance providing that no person shall
make any public address in any of the public grounds of the city, except in
accordance with a permit from the mayor, is a proper police regulation and
not unconstitutional. Davis v. Massachusetts, 167 U. 9. 48, 17 Sup. Ct
731, 42 L. Ed. 71. Bee ''Constitutional Law;* Dec. Dig, (Key No.) { 90; Cent,
Dig. i 172; ''Municipal Corporations,*' Dec. Dig. (Key No.) { 721; Cent. Dig.
S§ mZ-lSJ^
•> Cincinnati Gazette Co. t. Timberlake, 10 Ohio St 54S, 78 Am. Dec. 285.
Bee "Constitutional Law,** Dec. Dig. (Key No.) S 90; Cent. Dig. { 172; "Libel
and Blander;* Dec Dig. (Key No.) i 42; Cent. Dig. S 127.
§ 245) F&SBDOM OF SPEECH AND OF THE FBES8. 653
has been and is deemed a scandal upon the supposed sanctity of their
stations and characters, subjecting the party to grievous punishment.
In some countries no works can be printed at all, whether of science
or literature or philosophy, without the previous approbation of the
government." ••
Limitation by Law of Libel and Police Regulations.
Freedom of speech and of the press does not mean unrestrained
license. It cannot for a moment be supposed that this guaranty gives
to every man the right to speak or print whatever he may choose, no
matter how false, malicious, or injurious, without any responsibility
for the damage he may cause. The guaranty does not do away with
the law of liability for defamation of character. On the contrary,
that law is not only consistent with liberty of speech and of the press,
but is also one of the safeguards of those who may use, but do not
abuse, this liberty. By the common law, and by statute law in the
states, one who publishes libelous attacks upon another, with malicious
intent to do him injury, is amenable to the criminal law; and there
is also a liability in damages to the party injured.*^ Exceptions to
this rule are found in the case of what are called "privileged com-
munications." These will be noticed later.
The liberty of the press is also limited, but not abridged, by laws
passed in the exercise of the police power, for the protection of the
moral health of the community.** At common law, blasphemous pub-
•s 2 Story, Ck>nst | 1881. Under this constitutional provision, the legisla-
ture has no power to pass an act **to prohibit the active participation in poll-
tics of certain officers of the state government" Lonthan v. Commonwealth,
79 Va. 196, 52 Am. Rep. 626. See **Con9titutional Law,*' Dec. Dig. (Key No,)
i 90; Cent. Diff. f 172.
•*The legislature has no power to authorize the publisher of a newspaper
or any other citizen to Injure his neighbor's reputation without compensatlou.
Neafie v. Hoboken Printing & Publishing Oo., 75 K. J. Law, 564, 68 Atl. 146.
The right to publish a man*s picture, without his consent, as part of an ad-
vertisement, cannot be claimed as an exercise of the liberty of the press.
Paveslch v. New England Life Ins. Co., 122 Oa. 190, 50 8. B. 68, 69 L. R. A.
101, 106 Am. St Rep. 104. As to the use of the press for boycotting, black-
listing, forcing payment of bad debts, and similar purposes, see State v. Mc-
Cabe, 135 Mo. 450, 37 S. W. 123, 34 L. R. A. 127, 58 Am. St Rep. 589 ; Marx
& Haas Jeans Clothing Oo. v. Watson, 168 Mo. 133, 67 S. W. 391, 56 L. R. A.
951, 90 Am. St Rep. 440. iSfce *'Conetitutional Law,'* Dec Dig. (Key No.) i
90; Cent. Dig. S 172.
•B See State v. Pioneer Press Co., 100 Minn. 173, 110 N. W. 867, 9 L. R. A.
(N. S.) 480, 117 Am. St Rep. 684, sustaining the validity of a statute previa-
654 POLITICAL AND PUBLIC RIGHTS. (Ch. 19
lications, and also all such as tended, by their obscenity or indecency,
to debauch the minds of the public and corrupt their morals, were
punishable. And it is undoubtedly within the competence of the
several states to enact laws for the punisliment of such offenses,
without infringing upon private rights secured by the guaranty of
free speech. Thus, the constitutional provision does not prevent a
state legislature from enacting laws intended to prevent the publi-
cation and sale of newspapers especially devoted to the publication
of scandals and accounts of obscene and immoral conduct.*' The
same power belongs to the United States, within the territory subject
to its exclusive jurisdiction and with respect to the subjects committed
to its exclusive care. Thus, the act of congress prohibiting the use
of the mails for the transmission of obscene matter is not unconstitu-
tional as being in contravention of the first amendment.*^
8AME-OBITIOI8MS OF OOVEBHlIElfT.
846. The ci^armmty of fk«e speech mmd pnblieatioii seewei to tke eiti-
sen tlie risht freely to oiitieise tke nature, operatioms, Instltv-
tions, plane, or menenres of tlie sovenunent, provided only tlmt
rnneh eritioiin&s are not made wltk a purpose of ineitins tko
people to treason or rebellion.
English Law of Seditious Libels.
In Great Britain, "every person commits a misdemeanor who pub-
lishes (verbally or otherwise) any words or any document with a sedi-
ing that, in cases where the punishment of death was inflicted under Judicial
sentence, the newspapers should not publish any account of the details of
the execution beyond the mere statement of the fact threof. See ^Vonstitu*
tional Law,'* Dec, Dig, (Key No.) { 90; Cent. Dig. | 172.
ee Preston t. Finley (C. C.)*72 Fed. 850; In re Banks, 66 Kan. 242, 42
Pac. G93 ; State v. McKee, 73 Oonn. 18» 46 Atl. 409, 49 L. R. A. 542, 84 Am.
St. Rep. 124 ; State v. Van Wye, 136 Mo. 227, 87 S. W. 938, 58 Am. St Rep.
627; Ez parte Harrison, 212 Mo. 88^ 110 8. W. 709, 126 Am. St. Rep. 557.
But the mere fact that the proprietor of a newspaper has published reckless
and scurrilous matter does not warrant the police authorities in suppressing
its future publication. Ulster Square Dealer v. Fowler, 58 Misc. Rep. 325,
111 N. Y. Supp. 16. And a city cannot pass an ordinance declaring a named
newspaper a public nuisance and forbidding its sale in the city. Bx parte
Nelll, 32 Tex. Cr. R. 275, 22 S. W. 923, 40 Am. St. Rep. 776. See ''Constitu-
tional Law," Dec. Dig. (Key No.) | 90; Cent. Dig. S 17ft.
•7 u. S. T. Harmon (D. C.) 45 Fed. 414 ; Knowles y. U. S., 170 Fed. 409, 95
C. O. A. 579. See "Constitutional Law,** Dec. Dig. (Key NoJ | 90; Cent. Dig.
%172.
§ 246) FREEDOM OF SPEECH AND OF THE FBE8& 666
tious intention. Now, a seditious intention means an intention to bring
into hatred or contempt or to excite disaffection against the queen
[king] or the government and constitution of the United Kingdom
as by law established, or either house of parliament, or the admin-
istration of justice, or to excite British subjects to attempt otherwise
than by lawful means the alteration of any matter in church or state
by law established, or to promote feelings of ill will and hostility
between different classes. And if the matter published is contained
in a written or printed document, the publisher is guilty of publish-
ing a seditious libel. The law, it is true, permits the publication of
statements meant only to show that the crown has been misled, or
that the government has committed errors, or to point out defects in
the government or constitution with a view to their legal remedy, or
with a view to recommend alterations in church or state by legal
means, and, in short, sanctions criticism on public affairs which is
bona fide intended to recommend the reform of existing institutions
by legal methods. But any one will see at once that the legal definition
of a seditious libel might easily be so used as to check a great deal of
what is ordinarily considered allowable discussion, and would, if
rigidly enforced, be inconsistent with prevailing forms of political
agitation." •• This remains the law of England to the present day.
Prosecutions for seditious libel have been very numerous and un-
sparing in several periods of English history, particularly during the
civil wars and under the early Hanoverian monarchs.** This method
of repressing the expression of public opinion was a powerful engine
•a Dicey, OoDBt (4th Ed.) 231, 232.
••In 1791, the attorney general stated that in the last 81 years th»e had
been 70 prosecutions for seditions libel, and about GO convictions ; 12 had re-
ceived severe sentences, and in 5 cases the pillory had formed part of the
pnnishment 2 May, Const. Hist p. 112. Buch prosecutions were not unknown
in the American colonies. In 1735, in New York City, John Peter Zenger, a
printer and publisher of a newspaper, was tried on a criminal information
filed by the attorney general for seditious libel. The gist of the charge was
his having published in his newspaper criticisms of the governor and council
of the province of New York, charging them with injustice, tyrannical encroach'
ments upon the rights of the people, and Illegal actions in their official char-
acter. After a trial in which the most strenuous efforts were made to bring
about his conviction, and as able efforts in his defense, the Jury brought in a
verdict of not guilty, in the teeth of the charge of Chief Justice De Lancey.
After the trial, the mayor and council of New York presented the freedom
of the dty, in a gold box. to Andrew Hamilton, counsel for Zenger. Zenger's
Case, 17 How. St Tr. 67S,
666 POLITICAL AND PUBLIC BIGHTS. (Ch. 19
in the hands of the crown and ministers, but was wielded with such
severity, and enforced with such dangerous encroachments upon the
fundamental rights and liberties of individuals, as to arouse storms of
popular indignation, and excite the very disaffection which it was
intended to subdue. Conspicuous illustrations of criminal proceed-
ings of this sort are found in the trial of Wilkes, the author of the
"North Briton," ^* in 1764, and of the printers and publishers of the
"Letters of Junius," a few years later. Beside the main question
involved in cases of this kind, as to the natural right of free thought
and speech, great popular resentment was incurred by the officers
and judges of the crown for the manner in which such trials were
conducted. Not only were they prosecuted with the utmost rigor, and
followed by the most cruel punishments, but by means of ex officio
informations filed by the attorney general the prisoner was deprived
of his right to the intervention of a grand jury, and by the rulings of
Lord Mansfield (that the jury were to pass upon the question of pub-
lication alone, leaving the criminality of the alleged libel to be decided
by the court) the defendant was practically debarred from the hope
of an acquittal by the firmness and courage of his peers. Moreover,
general warrants were issued, authorizing officers to search private
houses and papers for the evidences of g^ilt under these laws. But
the strength of public opinion was not without its effect. Fox's Libel
Act reversed the rule laid down by Lord Mansfield, and made the jury
judges of the law in libel cases. General warrants were declared
illegal. And although the attorney general's information still supplied
the place of an indictment, there ensued a brief period when prose-
cutions of this sort were more rarely brought, and, when pressed,
more frequently resulted in acquittal, as juries gathered more cour-
age. But during the period of the French Revolution, the fears of
the government being much excited by the spread of democratic opin-
ions and the circulation of Jacobin literature and tractates favorable
to the right of revolution, the law against seditious libels was again
put into active and unrelenting operation both in England and Scot-
land. Until the closing years of the century, persecution of the
press was rife, and although it is true that many pestilent and ir-
responsible agitators were justly punished for abuses of the liberty
of speech, yet it is equally true that there were numerous examples of
tyrannical sentences imposed upon the leaders of public opinion.
During the next generation, prosecutions for libels upon the gfovem-
To Wilkes' Case, 19 How. St Tr. 107S.
§ 316) FBBBDOM OF SPBBCH AND OF THK PF.KML 667
ment were of less frequent occurrence ; but they continued to be used
as an occasional weapon in the hands of the ministry in power until
about 1830, by which time, it is said, the temper of the people was
such that they would no longer bear with complacency a harsh execu-
tion of the libel laws. "Since that time, the utmost latitude of criti-
cism and invective has been permitted to the press in discussing public
men and measures. The law has rarely been appealed to, even for the
exposure of malignity and falsehood. Prosecutions for libel, like
the censorship, have fallen out of our constitutional system. When
the press errs, it is by the press itself that its errors are left to be
corrected." ^^
Press Lazvs of Continental Europe.
In most of the countries on the continent of Europe, the press is
subjected, more or less fully, to the supervision of the government,
and its freedom of expression is restricted by severe laws. In Russia,
there existed until recently an official censorship, and no books or
papers were allowed to be printed, or sold upon their importation
from abroad, until they had been approved by the imperial censors.
In Germany and Italy, while there is no previous censorship, news-
papers, and even private writers, are required to observe the utmost
circumspection in their comments upon public affairs. Criticisms of
the rulers, in either their public or private capacity, may be construed
as "lese majeste/' and punished by fine or imprisonment. Animad-
versions upon the conduct of the government, or upon its policy,
plans, or management of the national affairs, if displeasing to those
in power, may be followed by the sequestration of the offending jour-
nal and fines imposed upon its publishers.
Criticism of Government in America,
In our own country, the freedom of the press, in its relations to
the government, is absolute. There are no laws to restrain the widest
and fullest discussion of the affairs of the public and the most ardent
and impassioned criticism of governmental policy and acts. Even
opinions hostile to our system of government and our institutions are
allowed perfectly free expression. Even the anarchist is not punished
for his incendiary utterances, nor subjected to any restraint until he
commits a breach of the peace. But publications relating to con-
spiracies to subvert the government, or tending to incite the people
Ti 2 May, Const Hlat p. 213. The reader wiU find an ezctiloit btetofrical
dlscuaslon of this subject In the volume referred to, on pages 102-218.
Bl.Gor8T.L.(3d.S>d.) — 42
668 POLITICAL AND PUBLIC RIGHTS. (Ch. 19
to treason or rebellion, would not be within the reason which protects
the freedom of the press J* The only known example in America
of an attempt to restrain seditious publications was the Sedition Law
of 1798. This act of congress provided for the punishment of all
unlawful combinations and conspiracies to oppose the measures of
the government, or to impede the operation of the laws, or to intim-
idate and prevent any officer of the United States from undertaking
or executing his duty. It also provided for a public presentation and
punishment, by fine and imprisonment, of all persons who should
write, print, utter, or publish any false, scandalous, and malicious
writing or writings against the government of the United States, or
either house of congress, or the President, with an intent to defame
them or bring them into contempt or disrepute, or to excite against
them the hatred of the good people of the United States, or to excite
the people to oppose any law or act of the President in pursuance
of law or his constitutional powers, or to resist or oppose or defeat
any law, or to aid, encourage, or abet any hostile designs of any for-
eign nation against the United States. But this act was one of the
principal causes of the downfall of the party which enacted it, was
always regarded as foreign to the spirit of our institutions, and was
consigned to oblivion, after a brief career, without regret.
SAME-GE1I80B8HIP OF THE PRESS.
247. The eoBBtitiitional svaraiity of freedoat of spoeoh and of the
pross forbids any ooBBorslilp of the press, or any requirement
of ofioial approval or lieense as a condition preeedent to pnb-
lioation.
In England, a decree of the court of star chamber limited the num-
ber of printers and of presses, and prohibited new publications un-
less previously approved by proper licensers. After the fall of this
jurisdiction, the parliament assumed the same power during the pe-
riod of the Commonwealth, and after the restoration of Charles II.
a statute on the same subject was passed founded principally upon
72 See People v. Most, 171 N. Y. 423, 64 N. E. 175, 58 L. R. A. 509, holding
that the publisher of an article Instigating revolution and murder, and sug-
gesting the persons to be assassinated through the positions they occupy, and
denouncing those who spare the ministers of public Justice as guilty of a crime.
Is not protected by the constitutional guaranty of freedom of the press. See
"Constitutional Law," Dec. Dig. (Key No.) S 90; Cent. Dig. { 112.
8§ 248-252) FREEDOM OF SPEECH AND OF THE PRESS. 659
the star chamber decree. This act was continued for some years
after the Revolution of 1688. Many attempts were made by the gov-
ernment to keep it in force, but it was strongly resisted by parlia-
ment, and it expired in 1694, and has never since been revived. "To
this very hour," says Story, "the liberty of the press in England
stands upon this negative foundation. The power to restrain it is
dormant, not dead. It has never constituted an article of any of her
numerous bills of rights; and that of the Revolution of 1688, after
securing other civil and political privileges, left this without notice,
as unworthy of care or fit for restraint." ^* As an example of a spe-
cies of restraint of the press which still exists in England, though
perhaps somewhat in the nature of a police regulation, we may men-
tion an act of parliament passed in 1843, which provides that all
new plays must be submitted to the lord chamberlain for his exam-
ination and approval ; and when he shall be of the opinion that it is
fitting for the preservation of good manners, decorum, or of the pub-
lic peace so to do, he may forbid the acting or representation of any
such play or part thereof anywhere in Great Britain or in such the-
aters as be may specify, and either absolutely or for such time as he
shall see fit.''* In the United States, no censorship of the press has
ever been attempted, .or would for a moment be tolerated. It is clearly
and indubitably prohibited by the constitutional provisions under
consideration.'' •
8AMB-PBIVII.EOED OOMMUHIOATIONB.
248. Ib the law of libel and alaader, '^rlTilece'* aioaas the eaemptiom
of the person ntteriac or pvblishlaK the auitter eomplaiaed of
fkoat reopoBriMHty, oItU or crlwlwol, althovch the words mtrnj
have oAvsed daauice aad may bo im f aot f aloe* FriTllese la of
two hiadst
<a) AbM»litte«
(b) OoaditioaaL
Tt 2 Story, Const 1 1882. ▼« Stat. 6 A 7 Tlct c. 6a
TeAn ordinance Imposing a license tax upon the business of publishing
a newspaper does not abridge the freedom of the press. City of Norfolk v.
Norfolk Landmark Pub. €k)., 05 Va. 564, 28 S. E. 959. It may be remariied
that In some American cities the police department exercises a censorship over
bill-boards and advertising displays, at least so far as to prevent the ex-
hibition of obscene or immorally suggestive illustratlona Bee **Con8titu^
Hanal Law,** Dec. Dig. (Key yo.) { 90; Cent. Dig. { 112.
660 POLITICAL AND PUBLIC RIGHTS. (Ch. 19
240* Absolnto prlTUece azenptB f^m all respoiutibilitj witkovt any
eonsideratlom of aiotiTe or dealsn.
260. Oomdltioaal prlTiloce proteoti ike porsoa Im ease Ms statemeiitf
tkovsli viftf evaded in f aet, was laade for proper ends and from
Jnstifiable niotlTes.
251. Absolnte prlTilece attaehes to statements made, in tke line of
their dntj, 1»T—
<a) Members of tbe lesislative bodies.
(b) Tbe principal ofieers of the exeentiTe branch of tke coTemment.
(e) Partieipants in Jndioial proeeedinse*
252. Conditionally priTileced eomnumioations indnde tke followinsi
(a) Pnblisked reports of Jndieial proeeedinss.
(b) CMtioisms of pnblie ofieers.
<e) Gritieisms of eandidates for pnblie oAoo.
(d) Gritieisms of conrts and Jndses.
(e) Gritieisms of literary eompositions.
Absolute Privilege — Legislators.
One of the highest kinds of privilege known to the law is that of
the members of legislative bodies, in respect to utterances or publica-
tions made by them in the discharge of their public duties. The fed-
eral constitution provides that senators and representatives "for any
speech or debate in either house shall not be questioned in any other
place." Article 1, § 6. And similar provisions are found in the con-
stitutions of most, if not all, of the states. This privilege ou^ht not
to be construed strictly, but liberally. It should not be confined to
delivering an opinion, uttering a speech, or haranguing in debate, but
extended to the giving of a vote, to the making of a written report,
and to every other act resulting from the nature and in the execution
of the office, whether upon the floor of the house or in committees,
and also in the official publications of the proceedings of the legisla-
tive body.
Same — Public Officers,
While inferior public officers are amenable to the laws if they at-
tempt to make their office a cover for malicious and unfounded at-
tacks upon private character, yet it is not to be supposed that the chief
executive magistrates of the Union and the states could be held
accountable in the courts for anything said or published by them in
their official capacity and in the line of their official duty, however
injuriously their utterances may reflect upon the reputation of private
persons. And the same exemption belongs to judges and judicial
officers of all kinds when acting within the limits of their jurisdiction.
§§ 248-252) VRBBDOM OF 8FBEGH AND OV THB PRB88. 661
Same — Participants in Judicial Proceedings.
All statements legitimately made in die course of judicial proceed-
ings are privileged. This privilege extends alike to parties, counsel,
witnesses, jurors, and judges; and it does not in any respect depend
upon the bona fides of the person. The occasion on which such a
communication is made is absolutely privileged, and the only ques-
tions are whether the occasion existed, and whether the matter com^
plained of was pertinent to the occasion.''* For instance, statements
made in affidavits, or orally, as a basis for an inquiry into an alleged
crime, or for the purpose of setting in motion the machinery of the
criminal law, are within this privilege. "Every one having reasonable
and probable grounds for believing that a crime has been conunitted
has the right to communicate his belief to the magistrate having ju-
risdiction of the offense." And consequently statements which are
false in fact, and would be otherwise actionable, are privileged if
made in an affidavit or other paper addressed to a magistrate, for
the purpose of causing a warrant of arrest or a search warrant to
issue, or to a grand jury for the purpose of procuring an indictment.'^
For, said the judges in an early case, if such statements would main-
tain an action, "no other would come to a justice to make complaint
and to inform him of any felony." ^* If, therefore, such a communi-
cation is "apparently pertinent, it is absolutely exempt from the legal
imputation of slander; and the party injured is turned round to a
different remedy, an action for malicious prosecution, wherein he is
bound to prove in the first instance, not merely that the communica-
tion was made in bad faith, but that it was not countenanced by prob-
able cause." '• The same principle applies to documents properly
and pertinently filed in a judicial proceeding after its inauguration.
No action will lie for defamatory statements made or sworn in the
T« Gardemal v. McWllliams, 48 La. Ann. 454, 9 Sonth. 106, 28 Am. St Rep.
195. See **Lib€l and Slander.** Dec. DUf. (Key No.) | S8; Cent. Dig. || 117-12S.
T^Townsh. Sland. & U | 220; Vogel v. Oniaz, 110 U. S. 811, 4 Sup. Ct 12,
28 L. Ed. 158 ; Lister v. Ferryman, L. R. 4 H. L. 521 ; RandaH v. Hamilton,
45 La. Ann. 1184, 14 Sonth. 73, 22 L. R. A. 649; Bames ▼. Wbittaker, 123
Mass. 342; Ball v. Rawles, 98 Cal. 222, 28 Pac. 987, 27 Ank St Rep. 174:
Warden t. Wlialen, 8 Pa. Go. Ct R. 660. See **Libel and Slander," Dec. Dig.
(Key No.) | S8; Cent. Dig. f 118.
78 Ram T. Lamley, Hut lia Bee "Libel and Slander,** Dec. Dig. (Key No.)
I S8; Cent. Dig. I 118.
▼• Howard t. Jfbompmm, 21 Wend. (N. Y.) 819, 825, 84 Am. Dec 23& Beg
**Libel and Slander,** Deo. Dig. (Key NoJ | $9; Cent. Dig. 1 1^4.
I
662 POLITICAL AND PUBLIC RIGHTS. (Cb- 19
course of a cause before a court of competent jurisdiction. All docu-
ments necessary to the conduct of the cause, such as pleadings, affi-
davits, and instructions to counsel, are privileged.** But still this
privilege cannot be abused. If it appears that a statement made in
an affidavit in a judicial proceeding was defamatory, wholly gratui-
tous and irrelevant, known to be false, and published with malice
and without cause or justification, it will support an action.*^
The judge presiding at a trial is of course entirely exempt from
responsibility for what he may say in regard to the case, the parties,
or the evidence; and the same is true of the jurors in their discus-
sion of the case and their deliberations while making up the verdict.
Neither will any action of slander lie against a witness for evidence
given by him in a judicial proceeding, pertinent and material to the
cause, and in response to questions put to him by court or counsel,
even though such evidence was false and maliciously designed to in-
jure another."^ But if the witness takes advantage of his position
to gratify his personal spite, and goes out of his way to cast injurious
reflections upon the character or conduct of another, speaking falsely
and maliciously with regard to a matter that has no relation or ref-
erence to the subject of investigation, he is not protected from the
consequences of his tortious act.'* "A witness in the box," says Od-
gers, ''is absolutely privileged in answering all the questions asked
him by counsel on either side ; and even if he volunteers an observa-
tion, still if it has reference to the matter in issue, or fairly arises
out of any question asked him by counsel, such observation will also
be privileged. But a remark made by a witness in the box, wholly
irrelevant to the matter of inquiry, uncalled for by any question of
counsel, and introduced by the witness maliciously for his own pur-
80 Odgers, Sland. & L. 187 ; Hendereon v. Broombead, 4 Hurl. & N. 569.
See *' Libel and Slander," Dec. Dig. (Key No.) § S8; Cent. Dig. §| 119, 120.
91 Sherwood v. Powell, 61 Minn. 479, 63 N. W. 1108, 29 L. R. A. 153, 52
Am. St Rep. 614. See **Lib€l and Slander,'* Deo. Dig. (Key No.) { S8; Cent.
Dig. §S 119, 120.
Bi Seaman v. Netliercllft 2 C. P. Div. 53; Allen v. Crofoot, 2 Wend. (N. Y.)
515, 20 Am. Dec. 647; Calkins v. Sumner, 13 Wis. 193, 80 Am. Dec. 738;
Crecellus t. Bierman, 59 Mo. App. 513; Baldwin v. Hutchison, 8 Ind. App.
454, 35 N. B. 711 ; McLaughlin t. Charles, 60 Hun, 239, 14 N. Y. Supp. 608 ;
Btchison v. Pergerson, 88 Oa. 620, 15 S. E. 680. See ''Libel and Slander,**
Dec. Dig. (Key No.) i S8; Cent. Dig. 1 121.
SB Hunckel v. Voneiff, 69 Md. 179, 14 Atl. 500, 9 Am. St Rep. 413, per Rob-
inson, J., dissenting. See **Libel and Slander," Dec, Dig. (Key No.) { S8; Cent.
Dig. 1 121.
§§ 24S-262) FREEDOM OF SPEECH AED OF THE PBE8S. 663
poses, would not .be privileged." •* Another and very important case
of absolute privilege is that of a lawyer addressing the court or jury
on his client's case. He is not to be held accountable for his com-
ments upon the evidence, the witnesses, or the opposing party, nor
can they be made the basis of an action against him. Thus, though
an attorney, on the trial of his client on a criminal charge, in com-
menting upon the testimony of a witness who has given evidence tend-
ing to sustain the charge, may, during his argument, accuse such
witness of perjury, in regard to matters to which he has testified perti-
nent to the inquiry in hand, he is not liable to an action of slander.*'
Conditional Privilege — Reports of Judicial Proceedings.
It is always permissible to publish the proceedings of the courts,
if it is done impartially and truthfully, and without intent to reflect
injuriously upon the character of any party concerned. "The publi-
cation, without malice, of an accurate report of what has been said
or done in a judicial proceeding in a court of justice, is a privileged
publication, although what was said or done would, but for the priv-
ilege, be libelous against an individual and actionable at his suit;
and this is true although what is published purports to be, and is, a
report not of the whole judicial proceeding, but only of a separate
part of it, if the report of that part is an accurate report thereof and
published without malice." •• "The publication of a fair and true
report of any judicial proceeding withoiit malice is privileged. This
was substantially the rule at common law, and was founded on the
principle that the advantage to the community from publicity of pro-
ceedings in courts of justice was deemed so great that the occasional
inconvenience resulting from it to individuals should yield to the
public good. The publication of such proceedings is treated as made
without reference to the individuals concerned, and solely for the
information and benefit of society, until the contrary appears; and
therefore the presumption of malice does not arise and such publica-
tion is privileged." '^ But the privilege extends only to an actual
•« Odgers, Sland. & L. 101.
•s Jennings v. Paine, 4 Wis. 358. See ''Libel and Slander,** Deo. Dig, (Key
Vo.) % S8; Cent. Dig. H lit, 122.
•• Macdongall v. Knight, 25 Q. B. Dlv. 1. See **Libel and Slander,** Deo.
Dig. (Key No.) | it; Cent. Dig, f 127.
ST Salisbury v. Union & Advertiser Co., 45 Hnn (N. T.) 120. And see Johns
T. Press Pub. Co. (Super. N. T.) 19 N. T. Supp. 8 ; Hawkins v. Globe Printing
€k)., 10 Mo. App. 174. Bee '*Libel and Blander,** Dec Dig. (Key No.) | 4t;
Cent. Dig. | 121.
664 POLITICAL AND PUBLIC RIGHTS. (Ch. 19
record of tbe proceedings. Comments upon the case or upon the
evidence, remarks upon the character or history of the parties con-
cerned, descriptive headings, observations and innuendos are not
privileged ; if unfair, false, or defamatory, they are libelous, and may
be punished as such.** Neither does the privilege extend to the re-
porting of such proceedings as are merely preliminary or ex parte.
If the publisher of a newspaper," says the supreme court of Ohio,
may, in virtue of his vocation, without responsibility, publish the
details of every criminal charge made before a police officer, how-
ever groundless, and whether emanating from the mistake or the
malice of a third person, then must private character be indeed im-
perfectly protected. Such publications not only inflict an injury of
the same kind with any other species of defamation, but their ten-
dency is also to interfere with the fair and impartial administration of
justice, by poisoning the public mind and creating a prejudice against
a party whom the law still presumes to be innocent" •• The pro-
ceedings before a grand jury are not proceedings before a judicial
body, in the sense that the publication of such proceedings is privi*
leged.** But one is not punishable for publishing a report of a
legislative committee, although it reflects upon the character of an
individual.*^
Same — Criticism of Public Officers.
In the class of conditionally privileged communications are included
criticisms upon the official character or conduct of a public officer.
Such criticisms are not actionable if made with an honest design to
enlighten the public and for their interest and benefit, but they are
punishable if made with a malicious design to injure or degrade the
individual. "The official act of a public functionary," says the court
in New York, "may be freely criticised, and entire freedom of ex-
pression used in argument, sarcasm, and ridiculcx upon the act itself,
and then the occasion will excuse everything but actual malice and
evil purpose in the critic." But "the occasion will not of itself ex-
■
••Thompson v. PownlDg, 15 Nev. 195; In re Egan (S. D.) 123 N. W. 478.
See "Libel and Slander," Dec. Dig, (Key No.) f 42; CetU. Dig. | 127.
«• Cincinnati Gazette Co. y. Timberlake, 10 Ohio St 548, 78 Am. Dec. 2S5.
See *'Libel and Slander," Dec. Dig. (Key No.) { 42; Cent. Dig. i 127.
•0 McCabe v. Cauldwell, 18 Abb. Prac. (N. Y.) 377. See ''Libel and Slander,"
Dec. Dig. (Key No.) f i2; Cent. Dig. § 127.
•1 Rex V. Wright, 8 Term B. 293. See "Libel and Slander," Dec Dig. (Key
No.) 142; Ceni. Dig. i 128.
IS 218-252) FRBBDOM OF 8FBB0H AHD OF THB PBB88. 665
cuse an aspersive attack upon the character or motives of the officer;
and to be excused, the critic must show the truth of what he has
uttered of that kind." ** A publication, therefore, which would be a
libel on a private person may not be a libel on a person acting in a
public capacity; but any imputation of unjust or corrupt motives is
equally libelous in either case.*' Thus, it is a libel to charge a mem-
ber of the legislature with acting corruptly in his official capacity, or
with being induced by some pecuniary or valuable consideration to act
in a particular manner upon matters coming before him as a legisla-
tor.*^ So, a charge that a financial statement of a county by the county
auditor was false, and that an officer who would swear to one lie would
swear to another, is a libel.** Further, in applying the rule of fair
and reasonable comment upon the public conduct of an officer, the
courts will not be illiberal in measuring the degree of warmth and
vigor which the writer may infuse into his language. But when such
criticism turns into gibes, taunts, or sneers, or personal insult or de-
rision, directed against his physical peculiarities, his idiosyncrasies of
manner, or his name, calculated to bring him into ridicule and con-
tempt, the limits of privilege are overstepped and the article becomes
a libel.** And again, fak^e and defamatory words in regard to a pub-
lic officer, spoken or published of him as an individual, are not privi-
leged on the ground that they related to a matter of public interest,
and were spoken or published in good faith.*^
Same — Criticism of Candidates for Office.
A similar rule obtains in regard to criticisms upon the characte^
history, or fitness of a candidate for public office, elective or ap-
pointive. "The fitness and qualification of a candidate for an elective
office may be a subject for the freest scrutiny and investigation, either
•s Hamilton v. Eno, 81 N. T. 116. See **Lihel and Blander,^ Dec. Dig. (Kep
No.) f 48; Cent. Dig. H IJ^, U6.
•B Parmiter y. Goupland, 6 ^fees. & W. 106. See ^Lihel and Slander,^ Dec.
Dig. (Key No.) | 48; Cent. Dig. |§ U5, I4S.
•« Wilson T. Noonan, 23 Wis. 105 ; State v. Schmitt, 49 N. J. Law, 579, 9
Ati. 774. See "Libel and Slander,'' Dec Dig. (Key No.) fS 10, US; Cent. Dig.
11 92, 404^
•B Prosser v. CalUs, 117 Ind. 105, 19 N. E. 736. See '*Libel and Slander;*
Dec. Dig. (Key No.) f 10; Cent. Dig. f 9S.
•• Buckstaff y. VlaU, 84 Wis. 129, 54 N. W. 111. See "^Lihel and Blander,"*
Dec. Dig. (Key No.) | 48; Cent. Dig. f 145.
•T Post Pab. Ck). V. Moloney, 60 Ohio St 71, 83 N. B. 92L Bee '*Libel and
Slander,'' Deo. Dig. (Key No.) | 48; Cent. Dig. 1 145.
666 POLITICAL AND PUBLIC BIGHTS. (Ch. 19
by the proprietor of a newspaper or by a voter or other person having
an interest in the matter, and much latitude must be allowed in the
publication, for the information of voters, of charges affecting the
fitness of a candidate for the place he seeks, so long as it is done
honestly and without malice. Nor will such publication be actionable
without proof of express malice, although it may be harsh, unjust,
and unnecessarily severe, for these are matters of opinion of which
the party making the publication has a right to judge for himself.
In the case of such a publication, the occasion rebuts the inference
of malice which the law would otherwise raise from its falsity, and
no right of action exists, even though the character of the party has
suffered, unless he is able to show the existence of actual malice. But
when the publication attacks the private character of a candidate by
falsely imputing to him a crime, it is not privileged by the occasion,
either absolutely or qualifiedly, but is actionable per se, the law im-
plying malice ; and it is no justification that the publication was made
with an honest belief in its truth, in good faith, and for the purpose
of influencing voters. Such publications can only be justified by
proof of their truth." •• The mental qualifications of a candidate for
public office, no less than his character and his fitness in other re-
spects, are open to fair discussion, and it is not libelous to argue that
he has not sufficient education or intelligence to discharge the duties
of the office in a proper manner, provided the writer's arguments are
fair and based on fact. But. it is not permissible falsely to charge
him with having spoken or written words which, if actually uttered
by him, would show him to be utterly illiterate and stupid.**
Same — Criticism of Courts and Judges.
It is the right of the citizen to comment upon the decisions and
actions of the courts of justice, and to discuss their correctness, the
fitness or unfitness of the judges for their stations, and the fidelity
with which they perform their duties ; but he has no right to attempt
by defamatory publications, to degrade the tribunal, destroy public
•8 Upton V. Hame, 24 Or. 420, 33 Pac. 810, 21 L. R. A. 493, 41 Am. St Rep.
863. And see Wheaton y. Beecher, 60 Mich. 307, 33 N. W. 503; Hallam v.
Post Pub.'Oo. (C. C.) 55 Fed. 456; Paveslch t. New England Life Ing. CJo.,
122 Ga. 190, 50 S. E. 68, 68 L. R. A. 101, 106 Am. St. Rep. 104 ; State v. Jon-
kin, 85 Neb. 1, 122 N. W. 473. Bee **Lihel and Slander," Dec. Dig, (Key No.)
I 48; Cent. Dig. f U6.
•• Belknap v. Ball, 83 Mich. 583» 47 N. W. 674, 11 L. R. A. 72, 21 Am. St
Rep. 622. See **LiJ>el and Slander,** Deo. Dig. (Key Ho.) | kS; Cent. Dig. |
S§ 248-252) FBEBDOM OF SPEECH AND OF THE PBE88. 667
I
confidence in it, and dispose the community to disregard its orders
and decrees. Such publications are an abuse of the liberty of the
press, and are punishable.^^^ Thus, to say of a judge that he will
allow his political predilections to influence his judicial action in
favor of his fellow partisans, is libelous, and not privileged.^^^ So,
also, an article charging a judge with maintaining a secret part-
nership in the business of the law with his son, the latter being a
member of the bar in active practice, with the inference that the
judge receives fees from parties to cases coming before him in his
court, amounts to a charge of misconduct in office, and is libelous
if not true.^^* And, again, an article imputing to a judge engaged
in the trial of a cause such conduct in respect to the case upon trial
as, if true, would render him an unfit person to preside at the trial,
is libelous and a contempt of court.***
Same — Criticism of Literary Compositions,
Criticisms of books and other literature offered to the public are
privileged provided they are honest and fair, made in good faith,
and not used as a cloak to cover an injurious personal attack upon
the writer. It is not libelous to ridicule a literary composition, or
the author of it, in so far as he has embodied himself in his work;
and if he is not followed into domestic life for the purpose of personal
slander, he cannot maintain an action for any damage he may suffer
in consequence of thus being rendered ridiculous.*** To say of a
published pamphlet, dealing with a public question, that it is ''the
effusion of a crank," is not necessarily libelous. To make it so, it
must be shown that the word "crank" carries a defamatory meaning,
and that the plaintiff has been specially damaged.***
100 state T. Morrill, 16 Ark. 884 ; Burdett v. Com., 103 Va. 838, 48 S. B.
878, 68 L. R. A. 251, 106 Am. St. Rep. 916; State t. Rosewater, 60 Neb. 43S.
83 N. W. 353 ; State y. Tugwell, 19 V^ash. 238, 52 Pac. 1056» 43 L. R. A. 717.
See 'Constitutional Late,'* Dec. Dig, (Key No.) { 90; Cent, Dig, { lift,
101 In re Moore, 63 N. C. 307. Bee **Contempt,** Dec, Dig, (Key No,) | 8;
Cent, Dig, | H,
109 Royce y. Maloney, 58 Vt. 437, 5 Atl. 395. See "Libel and Slander,*^ Dec,
Dig, (Key No,) | 7; Cent, Dig, S 35,
108 Myers y. State, 46 Ohio St. 473, 22 N. B. 43, 15 Am. St Rep. 638. See
'*Contempt,** Dec. Dig. (Key No.) f 9; Cent, Dig. f 15.
104 Carr t. Hood, 1 Camp. 354, note. See ''Libel and Slander,'' Dec, Dig,
(Key No.) | 48; Cent. Dig, | U7,
105 Walker y. Tribune Co. (C. C.) 29 Fed. 827. Bee "Libel and Blander^** Deo.
Dig. (Key No.) % 9; Cent. Dig. i 88.
668 POIJnCAL AND PUBLIC BIGHTS. (Ch. 19
Jury as Judges of the Law,
In the constitutions of many of the states, it is provided that, in
prosecutions for libel, the jury shall be judges of the law. This pro-
vision is in furtherance of the right of free speech, or was intended
to be so. For it is historically due to the early disposition of the Eng-
lish courts (before alluded to, and particularly with reference to Lord
Mansfield) to limit the province of the jury to the single fact of pub-
lication, reserving to the court the right to determine whether or not
the publication in question was libelous. Such a constitutional pro-
vision makes the latter question, no less than the former, a subject
for the sole decision of the jury.
THE RIGHT OF ASSEMBLY AXB PETITION.
S53. The llrst aaienditteat to ike federal eonstitiitlen provides tliat
^eoagrew aliall make ao lair abridsias tke riclit of ike peo«
pie peaceably to aeeeailile and to petition tke corenunent for
a redreis of ^;ri9iwwakemm^
This clause was probably suggested by the fifth declaration of the
English Bill of Rights, passed in the first year of William and Mary,
after the revolution of 1688, wherein the right of the subject to peti-
tion the king is set forth. But the right secured is so essential to a
free government that it would probably be regarded as inherent in
the nature of our republican systems, even if it were not expressly
placed under the protection of the constitution. The prohibition,
however, is here laid only upon congress. It is intended as a pro-
tection against federal action alone. But the right of the people
peaceably to assemble for the purpose of petitioning congress for a
redress of grievances, or for anything else connected with the powers
or duties of the national government, is an attribute of national citi-
zenship, and as such under the protection of and guarantied by the
United States. The very idea of a government republican in form
implies that right, and an invasion of it presents a case within the
sovereignty of the United States.^®*
106 U. S. y. Cmlkshank, 92 U. S. 542, 23 L. Bd. 688. See Widmayer r.
United States, 42 Ct CI. 519, holding that the right of the citizen to petition
congress for a redress of grievances Imposes upon congress, the duty of inves-
tigation, either through committees or the court of claims. Bee ^^Oonstitu-
tional Law,'' Deo. Dig. (Key No.) | 91; Cent. Dig. 1 175.
g 268) THB BIGHT OV AS8BMBLT AND PBTITIOM. 669
It will be noticed that two separate, though related, rights are
here secured. It is not that the right to assemble for the purpose of
framing or presenting petitions is guarantied. But the people have
the right to assemble for lawful purposes, though no petition is m-
cluded within the scope of those purposes. But since assemblages
for commercial, social, religious, or commemorative purposes are
sufficiently cared for in other provisions of the various constitutions,
the importance of the clause under consideration will principally be
apparent in connection with political meetings.^®^ And here the right
of assembly will include not only the meetings and conventions famil-
iar in our political methods, but also the assemblage of those who
have no standing as voters, when held with a view to secure political
recognition or urge the repeal of oppressive laws.
But the right of assembly and petition is not absolutely unrestricted.
It must be exercised "peaceably." By this is meant that assemblies
must be for lawful purposes and must not be tumultuous or riotous
in their character, and that petitions must not be of a seditious na-
ture, nor accompanied by any parade of force or show of intimidation
or threats.*®' If these conditions are violated, the participants be-
come amenable to the criminal laws, and cannot complain that their
lawful rights are abridged. This principle may be illustrated by
certain facts from English constitutional history which preceded the
adoption of our own constitution. It is a maxim of the law of Eng-
land that the subject has a right to prefer petitions for the redress
of grievances. This right was fully and triumphantly vindicated
upon the trial and acquittal of the seven bishops, in the fourth year
of James II., and the result of that trial has always been regarded as
one of the most notable victories of the law against attempts at ty-
lOT gee Brltton v. Board of Election Com'rs, 129 Cal. 337, 61 Pac. 1115, 51
L. R. A. 115, holding that the **primary election" law of California, providing
an exclusive scheme, controlling political parties In holding their conventions
for the nomination of candidates to public office, but denying the benefits
of the act to all political parties which did not cast at the next preceding
election at least three per cent of the total vote, Is In conflict with the con-
stitutional provision for freedom of assembly, since it not only discriminates
between political parties and the members thereof, bat works the disfran-
chisement of voters, or compels them, if they vote at all, to vote for represen-
tatives of a political party other than that to which they belong. And see
State V. Jnnkin, 85 Neb. 1, 122 N. W. 47a Bee '^Constitutional Law;* Dee.
Dig. (Key No.) | 91; Cent. Dig. { 11 S.
io« See Com. v. Abrahams, 156 Mass. 57, 30 N. E. 70. Bee "Coneti^utional
LamT Dee. Dig. (Key No.) | 91; Cent. Dig. 1 178.
670 POLITICAL AND PUBLIC RIGHTS. (Ch. 19
rannical oppression of the people.*** Yet at that very time there was
on the statute book an act against "tumultuous petitioning/' wherein
it was provided that not more than twenty names should be signed
to any petition to the king or either house of parliament for any
alteration of matters established by law in church or state, unless the
contents thereof were previously approved, in the country, by three
justices or the majority of the grand jury at the assizes or quarter
sessions, and in London, by the lord mayor, aldermen, and common
council, and that no petition should be delivered by a company of more
than ten persons.*** Afterwards came the Bill of Rights, wherein
it was declared "that it is the right of the subjects to petition the king,
and all commitments and' prosecutions for such petitioning are illegal."
But the statute referred to was not repealed by this declaration, and
it is still in force in England, though probably entirely a dead letter.
The distinction which it introduced, between lawful and peaceable
petitioning and such proceedings as are riotous or tumultuous, has
become a recognized part of the English law, though the specific pro-
visions of the statute are no longer regarded. This was made ap-
parent upon the trial of Lord George Gordon for high treason, in
1781. The followers of this nobleman, in immense numbers, pre-
senting the petition of the Protestant Association, had besieged par-
liament in its very house with threats, violence, and rioting. On this
trial. Lord Mansfield charged the grand jury that "to petition for
the passing or repeal of any act is the undoubted inherent birthright
of every British subject, but under the name and color of petitioning
to assume command, and to dictate to the legislature, is the annihila-
tion of all order and government. Fatal experience had shown the
mischief of ttunultuous petitioning, in the course of that contest, in
the reign of Charles L, which ended in the overthrow of the monarchy,
and the destruction of the constitution; and one of the first laws
after the restoration of legal government was a statute passed in the
13th year of Charles IL, enacting that no petition to the king or either
house of parliament for alteration of matters established by law in
church or state, shall be signed by more than twenty names or de-
livered by more than ten persons. In opposition to this law, the peti-
tion in question was signed and delivered by many thousands, and
in defiance of principles more ancient and more important than any
109 Case of The Seven BlfihoiMi, 12 How. St Tr. 183; Broom, Oonst Law»
40e.
110 Stat 13 Car. II. St 1, c. 6.
§ 258) THB RIGHT OF AS8BMBLT AND PETITION. 671
regulations upon the subject of petitioning. The desire of that pe-
tition was to be effected by the terror of the multitude that accom-
panied it through the streets, classed, arranged, and distinguished
as directed by the advertisements." ^^*
The meaning of this clause in the first amendment to the federal
constitution was brought into prominent light, and its effect earnestly
debated, in 1836 and 1837, when the house of representatives adopted
a resolution that all petitions relating in any manner to the subject
of slavery or the question of its abolition should be laid on the table,
without being either printed or referred, and that no further action
whatever should be had upon them. But no important rule or prin-
ciple was established, and the resolution itself, with the debates which
accompanied it, are now of historical interest only.^^*
The right of petition would be of but little value if the persons ex-
ercising it were afterwards liable to be punished for their use of the
privilege. "I take it to be undeniable," says a learned judge, "that
the right of petition, as that expression is used in the constitution of
the state, means the right of every being, natural and artificial, to ap-
ply to any department of government, including the legislature, for
the redress of grievances or the bestowal of right, and is a further
guaranty of the enjoyment of such redress or right when obtained,
free from all forfeiture or penalty for having sought or obtained
it."*** And it is a well-settled principle of law that petitions and
memorials are privilesfed (so that the authors or signers of them are
exempt from all liability, under the law of libel, for the statements
made in them) if they are made in good faith and for a proper pur-
pose, by a party having an interest in the matter to a party having
an interest or a power to act.*** Thus, for example, a letter or pe-
tition addressed to the President, the governor of a state, or any
public officer having the power to act in the matter, complaining of
misconduct in an inferior officer, or containing accusations against
him, and demandinsr his removal from office, is not a libel if it was
written as a bona fide complaint, to obtain redress for a grievance
ill Proceedings against Lord George Gordon, 21 How. St. Tr. 487.
lis See 2 Von Hoist, Const. Hist. U. S. pp. 245-262.
lis Citizens* Bank of Louisiana y. Board of Assessors tor the Parlrti of
Orleans (C. C.) 54 Fed. 73. See *Vonstitutional Lav>,** Dec Dig, (Key No.)
I 91; Cent. Dig. 1 17S,
114 Harrison y. Bush, 5 EI. A Bl. 844; Wright y. Lothrop, 149 Mass. 385, 21
N. B. 963; Odgers, Sland. & L. 220. See *'Libel and Blander,*' Dec, Dig. (Key
Vo.) i S7; Cent. Dig. % 116.
672 POLITICAL AND PUBLIC BIOHT8. (Ch. 19
which the party really believed he had suffered. Such petitions are
so far of the nature of judicial proceedings that the accuser is not
held to prove the truth of them, nor is he responsible for the injury
they may do to the person accused, unless they were founded in malice
and made wantonly and without probable cause.^^" A communica*
tion intended to be made to the proper authority, respecting matters
affecting the honesty of a public employe, is privileged, if made in
good faith and without any personal malicious motive, although in
fact it is addressed and delivered to the wrong person.^^*
264. In the ITnlteil States, disfraaeliiflement ezlate only mm a puidili-
ment for orime or as a eonseqaemoe of eonvletioB tl&ereof • It
Biay iaolade—
(a) IiOBB of tl&e ricl&t of sglBraso*
G>) Diiqualliloation to be a witaew in judicial proeeedinss*
(o) Disqnaliflcation to hold pnbUa offioe*
Meaning of Disfranchisement,
Disfranchisement is defined as the act of depriving a person of
franchises formerly held by him. In public law, it is applied es-
pecially to the taking away from an individual of his political rights
and privileges, or of his rights as a free citizen. In a still narrower
sense, it means the disqualification of an individual to exercise the
elective franchise.
In old English law, a person who was outlawed, excommunicated,
or convicted of an infamous crime, was said to "lose his law" (legem
amittere), which included the loss of his civil rights or the benefit
and protection of the law, and in a more restricted sense, the depriva-
tion of the right to give his evidence as a witness in a court of law.
On the other hand, a man who stood "rectus in curia," that is, pos-
sessed of all his civil rights, and not outlawed, excommunicated, or
infamous, was called "legalis homo," or a "good and lawful man."
Something similar to this was found in the Roman law, where the
lesser or medium loss of status (capitis diminutio media) occurred
116 Woodward v. Lander, 6 Car. & P. 548; Gray v. Pentland, 2 Serg. & R.
(Pa.) 23 ; Kent y. Bongartz, 15 R. I. 72, 22 Ati. 1023, 2 Am. St Rep. 870. See
*'Lihel <md Slander,'' Dec Dig. (Key No.) ( S9; Cent. Dig. (( 124-126.
lie Scarll v. Dixon, 4 Fost. & F. 250. See "IAt>el and Slander,*' Deo. Dig.
(Key No.) f U; Cent. Dig. f 1S6.
g 264) DISFBANCHISBMBNT. 673
when a man lost his rights of citizenship, and his family rights, but
without losing his liberty.
In the United States, the deprivation of civil rights can be inflicted
by the government only as a punishment for crime, or it may be de-
creed to follow as a consequence of the infamy supposed to charac-
terize one convicted of crime. Citizenship, as such, can never be
forfeited save by the voluntary renunciation of the party. That is
to say, there is no constitutional way in which the United States or
a state could reduce a person, enjo3ring the character of a citizen, to
the standing of an alien. But several of the privileges attached to
the status of citizenship may be stripped off, by way of punishment
for an offense duly proven in the courts. This power, however, can-
not be exercised in any arbitrary manner, nor by laws framed against
particular individuals or classes of citizens. An act inflicting such
disqualifications, if aimed at a particular person or class, and having
relation to past acts only, would amount to a bill of attainder or an
ex post facto law, or partake of the character of both.***
Discriminations as to OfRces.
Although the power to discriminate against individuals or classes,
in the distribution of civic rights or the infliction of civil disqualifi-
cations, is denied to the states by provisions found both in their own
constitutions and in the last three amendments to the constitution
of the United States, yet, in prescribing the qualifications for office,
or distributing the patronage of the state, it is not incompetent for the
legislature to make reasonable and proper discriminations. No one,
for instance, could successfully question the validity of the civil serv-
ice laws which make the passing of an examination a prerequisite
to the right to be appointed to office. So, also, it is held that statutes
providing that honorably discharged soldiers and sailors of the late
civil war shall be preferred for appointments to positions in the civil
service of the state and of its cities, over other persons of equal stand-
ing, are not unconstitutional.**' And in New York it has been ad-
judged that a law declaring that not more than two of the three per-
sons constituting the civil service commission thereby established shall
iiT CummingB y. Missoarl, 4 Wall. 277, 18 L. Ed. 356; Ex parte Garland,
4 Wall. 838, 18 L. Ed. 366. See ^^Constitutional Law,** Dec. Dig. (Key No.)
f 199; Cent. Dig. || 551-669.
119 In re Wortman (Sup.) 2 N. Y. Supp. 324; Sullivan v. Qilroy, 55 Hon,
285, 8 N. Y. Supp. 401. See **Offlcer$,** Dec Dig. (Key No.) { 10; Cent. Dig.
i It; **Mun4cipal Corporations:* Deo. Dig. (Key No.) ^ lt\; Cent. Dig. | 291.
Bl.Oon8T.L.(3d.Ed.)— ^
674 POLITICAL AND PUBLIC BIGHTS. (Ch. 19
be adherents of the same political party, is not in conflict with the
constitutional provision that "no member of this state shall be dis-
franchised or deprived of any of the rights or privileges secured to
any citizen thereof, unless by the law of the land or the judgment
of his peers." **•
Right of Suffrage.
In most of the states, as already remarked, many persons who are
entitled to be denominated citizens are not allowed the privilege of
the ballot. Such are women, minors, insane persons, the illiterate, and
in some states the proletarian classes. But the denial of the right
of suffrage to these persons cannot properly be called a disfranchise-
ment of them, because that term is correctly applied only to the
deprivation of a privilege heretofore enjoyed. But disfranchisement,
in the sense of a taking away of the elective franchise from persons
who formerly possessed it, exists in most of the states as a punish-
ment for crime. Several of the state constitutions contain provisions
denying the right of voting at public elections to those who shall be
convicted of an "infamous crime," or of "high crimes," or of "fel-
ony." And in some of the constitutions, various crimes are specified,
a conviction of which shall work the deprivation of this right, such
as treason, bribery, duelling, betting on elections, perjury, embezzle-
ment of public money, larceny, and forgery.***
DisqualiAcation to be a Witness.
By the English common law, a person who was convicted of an
infamous crime was thereby rendered incompetent as a witness, on
the theory that a person who would commit so heinous a crime must
necessarily be so depraved as to be unworthy of credit. These crimes
were treason, felony, and the crimen falsi. But at present, the dis-
qualification of infamy has been done away with by statute in Eng-
land and in most of the United States, and the rule has been substi-
tuted that a conviction for crime may be adduced in evidence to af-
fect the credibility of the witness.***
!!• Rogers y. Coounon Council of City of Buffalo, 123 N. Y. 173, 26 N. B.
274, 9 L. R. A. 579. But compare City of Evansvllle v. State, 118 Ind. 426,
21 N. B. 267, 4 L. R. A. 93. Bee "Conetiiuiional Law,*' Dec Dig. (Key ^0.)
i «77; Cent. Dig. | 766.
ISO 8tlm. Am. St Law, i^, 62, 63. See Baum y. State, 167 Ind. 282, 61
N. B. 672, 66 L. R. A. 260. See ''Elections;' Deo. Dig. (Key 2io.) if IS, 90;
Cent. Dig. H ^S, 87.
xsi 1 Wliart By. i 397.
§ 264) DI8FRANCUI8EMBMT. 675
IneligibilUy to OfRce.
If a convict is considered unworthy to exercise the elective fran-
chise, much more should he be deemed unfit to hold office in the gov-
ernment. Accordingly, we find that the constitutions of many of the
states declare that no person who has been convicted of certain crimes
shall be eligible to h<Jd public office.*** These provisions vary greatly
in respect to the specific crimes which are to be attended with this
consequence. But those most frequently enumerated are treason,
bribery, duelling, malfeasance in office, public defalcation or embez-
zlement of the public funds, perjury, offenses against the election
laws, and murder. In a number of the states, the disqualification at-
taches to the conviction of any infamous crime. This consequence
of a conviction is strictly and properly a punishment It cannot be
inflicted except by due process of law. Thus, a constitutional provi-
sion making a defaulter or embezzler of the public money ineligible
to any office of trust or profit presupposes that the default shall be
ascertained and fixed by judicial or other legal authority; until this
is done, the acts of a person holding the^ office will be valid and bind-
ing, and his sureties will be liable for them.**' But a person who
has committed an act disqualifying him for office may be removed
from his office by a proceeding by quo warranto, or by information
in the nature of a quo warranto, although he has not been convicted
of the offense in any criminal prosecution against him.***
iss While the legislature cannot establish arbitrary exdnsions from office,
nor any general regnlationB requiring qnallfications which the state constita*
tion has not required, yet a law declaring that no perscm gnUty of certain
enumerated criminal offenaee shall be eligible to any office of profit, trust, or
emolument under the state government, is valid. Barker v. People, 8 Cow.
(N. Y.) 686, 16 Am. Dec. 822. 8ee *'Otllcer$,*' Dec. Dig. (Key No.) i 19; Cent.
Dig. t tS.
isi Oawley v. People, 96 IlL 240. See ''Of/lcen,*' Deo, Dig. (Key No.) | ISl;
Cent. Dig. % 229.
is« Royal] v. Thomas, 28 Qrat (Va.) 180, 26 Am. Rep. 886; Com. v. Walter,
88 Pa. 106^ 24 Am. Rep. 164; Brady v. Howe, 00 Miaa. 607. See "Quo Wwt'
ranto,'* Dec Dig. (Key No.) i U; Cent. Dig. i 16.
676
CONSTITUTIONAL QUABANTIBS IN CRIMINAL CA8BS. (Cb. 20
OHAFTEB
OONSTITUTIONAIi GUABANTIBS IN CRIMINAL OASBS.
255-266. ProTisions in the Gonstitationa.
2257. Presentment or Indictment.
268-259. Trial by Jury.
260. Privilege against Self-Criminating KTldencew
261. Confronting with Witnesses.
262. Compelling Attendance of Witnesses.
263. Right to be Present at TriaL
264. Assistance of CounseL
265. Right to be Heard.
266. Speedy and Public Trial.
267-269. Twice in Jeopardy.
270. Baa
271. Cruel and Unusual Punishments.
272. Bills of Attainder.
273. Ex Post Facto Laws.
274. Suspension of Habeas Oorpufi
275-277. Definition of Treason.
278. Corruption of Blood and Forfeiture.
PROVISIONS IN THE CONSTITUTIONS.
i
266. ITnder tl&e Amerioaa ■ystemsy erery person charged with erlais
and brousht to trial therefor is seoured, by oonstitutional
Snaraaties, in the enjoyment of certain rights ^rhioh are gen-
orally deemed essential to the dne administration of jnstioo
nnder a free goTomment. Some of these rights are seonrod
by the oonstitntion of the United States, others by the oon«
stitntions of the individnal states, and others by both eon-
<mrrently.
The most important of these rights are as follow^st
The right to a presentment or indiotment by a grand jnry.
The right to be tried by a petit Jnry.
The exemption of the prisoner from being compelled to testify
against himself.
The right to be confronted with the witnesses against him.
The right to compnlsory process for obtaining witnesses in his
faTor.
(f ) The right to be present at the triaL
(g) The right to be heard In person or by attorney and to haTC the
assistance of eoansel for his defense.
[266.
(•)
(b)
(o)
(d)
(e)
t
J
Si
g§ 255-256) PROVISIONS in thb ooNSTiTnTioN& 677
Ch) The Hght to a flpeedjr, fair, and paUlo tHaL
(i) The pviTilege against beinc deprived of life, libortj, or prop-
erty wlthoat dae proeem of law.
( j ) The suaraaty that the priioner shall not he twioe pat in jeop-
ardy of life or limh for the Mune offenie.
<h) The guaranty that ezoeisiTO hail shall not he required.
^Nv \ ( 1 ) The guaranty that ezeoMiTo Unee shall not ho iatposed nor emel
and nnnsaal pnnishnents inilioted*
(m) The provision that no person shall he punished by a hill of at-
tainder or an en post f aoto law*
^ (n) The priTilege of the writ of haheas oorpvs, eneept when it may
he lawfully suspended in emersenoies provided for hy the eon-
\ stitution*
c
The fifth, sixth, and eight amendments to the federal constitu-
tion, wherein many of the above mentioned rights are guarantied
to persons accused of crime, are now conceded to be applicable only
to. the courts of the United States and proceedings therein. They
were not intended to operate, and do not operate, to restrict the power
of a state in its dealings with persons offending against its own laws,
but were designed merely as limitations upon the power of the na-
tional government* But the same rights are secured by the consti-
tutions of nearly all the states, not always in the same language, but
to practically the same effect. And there are certain provisions of
the federal constitution, relating to criminal procedure, which are
binding, not upon the national government and its courts, but pri-
marily upon the several states and their judges and legislatures.
These are the provisions that no state shall pass any bill of attainder
or ex post facto law, and that no state shall deprive any person of
life, liberty, or property without due process of law, nor deny to any
person within its jurisdiction the equal protection of the laws.
Fourteenth Amendment,
This amendment does not limit the power of state governments in
the prosecution of criminals to any particular mode of procedure in
the selection of jurors or in the mode of conducting trials, but does
require that such trials shall be conducted in due course, according
1 Mmer y. Texas, 153 U. S. 535, 14 Sap. Ot. 874, 88 L. Bd. 812 ; Twltchell
V. Pennsylvania, 7 Wall. 321, 19 L. Ed. 228 ; State y. Paul, 6 B. I. 186 ; Murphy
y. Pe<^le, 2 Ck>w. (N. Y.) 815; Perrear y. Massachusetta, 6 Wall. 475, 18 L.
Ed. 606 ; O'NeU y. Vermont, 144 U. S. 323, 12 Sup. Ct. 888, 86 L. Ed. 450. See
''Criminal Law,'* Dec, Dig. (Key 2fo.) % 4; Cent. Dig. ^ 5; 'Vonetituiional
Law;' Cent. Dig. f 727.
678 CONSTITUTIONAL GUARANTIES IN CRIMINAL CA8B8. (Ch. 20
to the prescribed forms and judicial procedure of the state for the
protection of the individual rights and liberties of its citizens.' These
fundamental guaranties, however, have no relation to crimes commit-
ted without the jurisdiction of the United States against the laws of a
foreign country.*
Same — Application to Rules of Evidence.
There is nothing in the constitution of the United States which pre-
vents a state from prescribing the evidence to be received in its courts,
and a statute is not unconstitutional which makes certain acts prima
facie evidence of guilt, if the accused is permitted and given an op-
portunity to rebut that presumption by proper proofs.* So a state
law is not invalid which requires a person on trial for a criminal of-
fense to establish the defense of insanity by a preponderance of the
evidence.* But a provision that the character of an alleged illegal
trust or combination may be established by proof of its general repu-
tation as such is unconstitutional, as being in violation of the four-
teenth amendment.*
Waiver of Rights.
Some of these rights are merely personal to the defendant and may
be waived by him. Others, according to the prevalent doctrine, are
inalienable and cannot be taken away even with the free consent of
the accused. Thus, he cannot be compelled to furnish evidence against
himself; but a statute allowing him to testify at his own trial if he
elects to do so is constitutional, and if he takes the stand in his own
behalf, he may then be cross-examined the same as any other witness.''
So, he has the right to be confronted with the witnesses against him.
3 In re AiaxweU, 19 Utah, 495» 57 Pac. 412 ; Lnmar y. Prosser, 121 Ga. 153,
48 S. E. 977. And see Dallema^e v. Molsan, 197 U. S. 169, 25 Sup. Ct 422,
49 L. Ed. 709 ; Nobles y. Georgia, 168 U. 9. 398, 18 Sap. Ct 87, 42 L. Ed. 515 ;
Dreyer y. lUlnoifl, 187 U. S. 71. 23 Sup. Ct 28, 47 L. Ed. 79. See "Constitu-
tional Law:' Dec. Dig. (Key No.) § 251; Cent. Dig, %% 726, 727.
• Neely y. Henkel, 180 U. S. 109, 21 Sup. Ct 302, 45 L. Ed. 448. See '*Consti-
tutUmal Law:' Dec. Dig. (Key No.) i 82; Cent. Dig. f U9.
« Logan & Bryan v. Postal Telegraph & Cable Co. (C. C.) 157 Fed. 570;
State y. Beach, 147 Ind. 74, 46 N. E. 145, 36 L. It A. 179. See ''Constitutional
Law," Dec. Dig. (Key No.) i 266; Cent. Dig. f 756.
B Oom. y. Barner, 199 Pa. 335, 49 Atl. 60. See ''Constitutional Law," Dec.
Dig. (Key No.) S 266; Cent. Dig. § 75^.
• Hammond y. State, 78 Ohio St. 15, 84 N. B. 416, 15 L. R. A. (N. S.) 906.
125 Am. St Rep. 684. See "Constitutional Law:' Dec. Dig. (Key No.) | 266;
Cent. Dig. f 756.
f People y. Tice, 131 N. Y. 651, 80 N. B. 494, 15 L. R. A. 669 ; Boyle y. State^
g 267) PBRSBNTMBHT OB IHDIGTMBNT. 679
But a law providing that he may take depositions of witnesses in a
foreign jurisdiction on condition that he consents to the prosecution
doing the same, is constitutional, and if he takes advantage of this act,
he thereby waives his guarantied rights to that extent.* On the other
hand, it is held (in a majority of the states, though not in all) that
the right to be tried by a jury of his peers is an inalienable right,
which the accused cannot give up, unless, it may be, by express stat-
utory authority, or in cases of mere misdemeanors.* Again, it is gen-
erally held that the prisoner cannot waive his right to be present at
the trial. If he is absent, there is a want of jurisdiction, and the court
cannot proceed with the trial, nor receive a verdict, nor pronounce
sentence.^* But this rule is not applicable to the trial of a misdemeanor
or a breach of a municipal ordinance; such a trial may proceed in
the absence of the accused, if he was legally arrested.^*
PBE8EHT1CE1IT OB INDIOTMEHT,
857* Tl&e flfth amendment to tl&e eonstitntlon of the ITnlted States
prerldee tliat ^o pereon eludl be held to answer for a eapital
or otherwise inf amovs oriate, nnless on a presentatent or in*
' dietment of a grand Jnry, ozoept in eases arising in the land
or naval f orees, or in the mlHtla when in aetual serviee in
tinM of w^ar or pnhlio danger.** And the same prorision is to
be f ovnd in the eonstitntions of most of the states, ezeept that*
in some, it is extended to all eriminal offenses, and that* in
some others, it is provided that no person, for any indiotable
offense* shall be proeeeded against eriminally by information.
The object of this guaranty is to secure to persons charged with
high crimes the intervention of a grand jury, which safeguard against
106 Ind. 469, 5 N. B. 208, 55 Am. Rep. 2ia See ''Witnesses," Deo. Dig. (Key
No.) i SOS; Cent. Dig. f 1054,
9 Batler v. State, 97 Ind. 378. See "Criminal Law,'* Dec Dig. (Key No.)
i 662; Cent. Dig. § 1548.
• Wilson y. State, 16 Ark. 601 ; State v. Maine, 27 Conn. 281 ; Whallon v.
Bancroft, 4 Minn. 100 (6iL 70). Oompare League r. State, 96 Md. 259. Bee
"Jury;* Dec. Dig. (Key No.) § 29 ; Cent. Dig. % 198.
10 People v. Perkins, 1 Wend. (N. Y.) 91 ; Prlne v. Com., 18 Pa. 108 ; State
V. Hughes, 2 Ala« 102, 36 Am. Dec. 411. Compare Fight y. State, 7 Ohio, 180,
pt 1, 28 Am. Dec. 626; McCorkle y. State, 14 Ind. 39. See "Criminal Law,"
Deo. Dig. (Key No.) H 6S6, 898; Cent. Dig. (f 1465-1482, 2120.
11 City of Bloomington y. Helland, 67 UL 27a See "Criminal Law,*' Dec
Dig. (Key No.) i 6S6; Cent. Dig. i 1467.
680 CONSTITUTIONAL GUARANTIES IN CRIMINAL CASES. (Ch. 20
tyranny and oppression is generally regarded as no less important
than the right to a trial by jury after indictment found.** A pre-
sentment, properly speaking, is an accusation made ex mero motu, by
a grand jury, of an offense, upon their own observation and knowl-
edge, or upon evidence before them, without any bill of indictment
laid before them at the suit of the government. An indictment is a
written accusation of an offense preferred to a grand jury and pre-
sented upon oath by them as true, at the suit of the government. Up-
on a presentment, the proper officer of tlie court must frame an in-
dictment before the party accused can be put to answer it. But an
indictment is usually, in the first instance, framed by the officers of
the government and laid before the g^nd jury.*' An information is
an accusation in the nature of an indictment, but differs from it in
that it is presented by a competent public officer on his own oath of
office, instead of by a grand jury on their oath.** The constitutional
provision in question is therefore designed to interpose a barrier
against vindictive or tyrannical prosecutions either by the government
or by political partisans or private enemies. Such a provision is ju-
risdictional. And where it is found, no court has authority to try a
prisoner without indictment or presentment for such a crime as is
covered by it.*" It is scarcely necessary to add that the right to a
IS At the common law, a grand Jury was composed of not less than twelve
nor more than twenty-three persons, and the concurrence of twelve of this
number was absolutely essential to the finding of an Indictment A state stat-
ute which provides that every grand Jury shall consist of twelve persons is not
unconstitutional. But If It goes further than this, and provides that the assent
of eight of that number shall be sufficient to the finding of an indictment, It is
invalid. English v. State, 31 Fla. 840, 12 South. 689. See "Grand Jury,'* Dec.
Dig, (Key. No.) § 5; Cent, Dig. {( 5, 6.
i» 2 Story, Const | 1784.
1* 1 Blsh. Cr. Proc ( 141.
IB Ex parte Bain, 121 U. fi. 1, 7 Sup. Ct 781, SO L. Ed. 849. It Is to be
observed that If the constitution of the state authorizes the prosecution
of criminal offenses by Information, rather than by indictment, such a method
of proceeding cannot be deemed Insufficient to constitute **due process of law."
Davis Y. Burke, 179 U. S. 399, 21 Sup. Ct 210, 45 L. Ed. 249 ; Bolln v. Ne-
braska, 176 U. S. 83, 20 Sup. Ct 287, 44 L. Ed. 382; Maxwell v. Dow, 176
U. S. 581, 20 Sup. Ct 448, 44 L. Ed. 597 ; Hurtado v. California, 110 U. S.
516, 4 Sup. Ct 111, 28 L. Ed. 232; People v. Flannelly, 128 Cal. 83, 60 Pac
670; State t. Ju Nun (Or.) 97 Pac. 96; Hodgson y. Vermont, 168 U. S. 262,
18 Sup. Ot 80, 42 L. Ed. 461; State v. Jones, 168 Mo. 398, 68 S. W. 566;
State Y. Gugllelmo, 46 Or. 250, 80 Pac. 103, 69 L. R. A. 466. See *'ConsHtu-
iional Law,'* Dec. Dig. (Key No.) { 265; Cent. Dig. i 155.
§ 257) PBBSBNTMBNT OB IMDICTMBKT. 681
presentment or indictment was not created by the American con-
stitutions. The grand jury was an established institution of English
law long before the Norman conquest.
What is an "infamous crime"? This question has been much de-
bated, and opinions differ as to just what is included in this term.
But the courts of the United States have determined that any crime
which is punishable by imprisonment in a state prison or penitentiary,
with or without hard labor, is an infamous crime within the meaning
of the fifth amendment.^* But as regards mere misdemeanors, which
involve neither infamy in the offender nor in the punishment, it is
agreed that congress or a state legislature has the power to provide
that they shall be proceeded against either by indictment or by in-
formation.*^
The cases excepted from the provision are such as arise in the army
or navy, or in the militia when in service or organized on a war foot-
ing. By the Articles of War, courts-martial have jurisdiction to pun-
ish larceny when committed by persons in the military service to the
prejudice of good order and military discipline; and it was not in-
tended that proceedings thereon should be in the technical form of
criminal proceedings founded on indictments.* • Furthermore, there
are certain kinds of proceedings which resemble criminal proceed-
ings in their form, or in the nature of the judgment to be pronounced,
but yet are not trials for "criminal offenses," and therefore not with-
in this constitutional guaranty. Thus, an information in the nature
of a quo warranto, brought to try the right to an office or franchise,
though in form a criminal proceeding, is in the nature of a civil
remedy, and hence is not within the constitutional requirement of pre-
sentment or indictment.**
i«Er parte Wilson, 114 U. S. 417, 5 Sup. Ct. 035, 29 L. Ed. 89; Mackin
V. U. S., 117 U. S. 348, 6 Sup. Ct. 777, 29 L. Ed. 909 : U. S. v. De Walt, 128 U.
S. 393, 9 Sup. Ct. 111. 32 L. Ed. 485. See "Indictment and Information,'* Dec.
Dig, (Key yo.) | S; Cent, Diff, H 10-^20,
17 State V. Ebert, 40 Mo. 186; King v. State, 17 Fla. 183; Pearson t Wim-
blsh, 124 Ga. 701, 52 S. E. 751 ; Sherman v. People, 210 ni. 552, 71 N. E.
618 ; In re Collection of Poll Tax, 21 R. I. 582, 44 Atl. 805 ; State y. Newman,
96 Wis. 258, 71 N. W. 438. See *'Indictment and Information;* Dec. Dig. (Key
No.) IS 2, S; Cent, Dig, ff 4-^0.
IS In re Esmond, 6 Maekey (D. O.) 64. Bee **Arm/y and Navy;* Dec. Dig,
(Key No.) H 49-47; Cent. Dig. fS 89-93.
10 State y. Hardie, 23 N. C. 42; President, etc., of Bank of Vincennes y.
State, 1 Blackf. (Ind.) 267, 12 Am. Dec. 234. Bte "Quo WarrafUo;' Deo. Dig.
(Key No.) { 26; Cent. Dig. f 28.
682 CONSTITUTIONAL OUABANTIBS IN CRIMINAL CA8B8. (Ch. 20
The provision in the sixth amendment, and the constitutional pro-
visions in many of the states, that persons charged with crime shall
have the right to hear the nature and cause of the accusation against
them, or that the indictment shall ''fully and plainly, substantially
and formally, describe the offense with which the prisoner is charged,"
are peremptory and cannot be violated, though they do not change
the rules of the ccMnmon law.*" But such a provision does not pro-
hibit the simplification of criminal pleadings by the abolition of verbi-
age and the technical forms of the ancient law. The legislature may
prescribe a form of indictment to be used in the courts of the state,
simplifying the formulas of the common law or omitting unnecessary
prolixities, provided only that an indictment modeled on such statu-
tory form must contain all the allegations needed to give it legal cer-
tainty and to charge an offense.*^ An indictment for murder must
allege both the time and the place of the death of the victim, and if
it omits either of these it is fatally defective.**
TBIAI. BT JUBT.
258. Tl&e risht of tiial hf jurj, KVAraatied to mil persons oliArKod
witb erlaie, inelttdes tlio rislit to bo tried by a Jury of twelve
men, drawn from tbe rielnacot wl&o sbnll be importlally se-
leeted and not objeetlonable on aooonnt of any dlsquallfyinc
eanses, and ^rbo mvst nnanimonsly acree npon a Tordiet of
snllty before the prisoner ean be sentenced and pnnisbedi
259* Tbls priTilese may be elalmed, as a matter of eonstitntlonal
right, in all proseentions for indictable offenses or for snch
criates as were triable by Jnry at iiiiifrinsH Isi And where it
so Ck)mmonwealth y. Davis, 11 Pick. (Mass.) 438 ; Murphy y. State, 28 Miss.
637. See Serra y. Mortiga, 204 U. S. 470, 27 Sap. Gt 343, 51 L. Ed. 571. A
statute proTiding that every person who steals property in another state or
country, and brings the same into the enacting state, may be punished **as If
the larceny had been committed'* in that state^ is inconsistent with this con-
stitutional provision, because the courts of the state cannot assume that the
crime of "larceny** or ''stealing*' exists in another state or country. Territory
V. Hefley, 4 Ariz. 74, S3 Pac 618. See **Indiotment and Information** Deo.
Dig. (Key. No.) |§ 55. 57; Cent. Dig. H 176-179; *Vrifninal Law,*' Deo. Dig.
I 84; Cent, Dig. § 117.
a 1 Dillon y. State, 9 Ind. 408; State y. Gomstock, 27 Vt 553; State y.
Schnelle, 24 W. Ya. 767. See **Indictment and Information** Dec. Dig. (Key
No.) SS 66, 57; Cent. Dig. U 176-179.
ss Ball V. U. S., 140 U. S. 118, 11 Sup. Ct 761, 35 L. Ed. 377. See ''Homi-
cide;* Dec. Dig. (Key No.) i 1S7; Cent. Dig. i 229.
§S 258-259) TRIAL BT JUBT. 683
i» provided (as it la in mMMj of tlie stato ooastitntioas) that
the riffht of trial by Jury ehall ''be preMrredy** or ehall '^reauaa
iBTiolato,** it i» laeaat tliat this rlcht aliaU oontlaiie ae it ex-
isted at the adoption of the eonstitvtioa. And the guaranty of
the right of trial by Jury prohibits the legislature and the
eovrts from imposiag sneh restrietions or iatpediments npon
it as would nnreasonably Impair it.
The right of a person charged with crime to be tried by a "jury
of his peers" is not a right created by the constitutions. It is a
common law right of great antiquity, and was expressly recognized
and secured by Magna Charta. All that the constitutions do is to
reaffirm it and place its continuance beyond the hazard of ephemeral
changes of public opinion. But even if this right were not mentioned
in our constitutions, the abolition of it would be universally regarded
as a revolutionary measure. Whether the trial by jury (and particu-
larly the requirement of unanimity) is a help or a hindrance to the
effective administration of criminal justice, is a question much debated
by publicists, of late years, but one with which we are not at present
concerned.
Trial by jury always means a trial by a jury of twelve men, in ac-
cordance with the ancient common law composition of the petit jury.
Unless the constitution expressly permits it, there is no power in the
legislature to require or authorize a trial for an indictable oflFense by
a jury of less or more than twelve members.*' The jury must be im-
partial. And to secure this, the prisoner must have the right to chal-
lenge or object to such jurors as are disqualified for any cause. The
legislature may prescribe the time and manner of determining the
objections to the qualifications of jurors, but it cannot take away the
right of objecting.** But laws limiting the number of peremptory
challenges to be allowed to the defendant, or granting peremptory
stDoebler v. Ck>m., 3 Serg. ft R. (Pa.) 237; Moore v. State, 72 Ind. 358;
Norval y. Rice, 2 Wis. 22 ; People v. 0*NeU, 48 CaL 257 ; GoUins v. State, 88
Ala. 212, 7 South. 260. Am to the constitutional right of the states to proTide
for a Jury of less than 12 men in cases not capital, see Maxwell v. Dow, 176
U. S. 581, 20 Sup. Ct 448, 44 L. Ed. 587; State y. Bates, 14 Utah, 293, 47
Pac. 78, 43 li. R. A. 33. See ''Jury:' Dec Dig. (Key No.) H 4, SS; Cent. Dig,
H 5-7, 221-225.
s« Palmore y. State, 29 Ark. 248. See Queenan y. Territory, 11 Okl. 261, 71
Pac. 218, 61 L. R. A. 324 (affirmed lUO U. S. 548, 23 Sup. (X. 762, 47 L. Ed.
1176). See "Jury," Dec Dig. (Key No.) | SS; Cent. Dig. fi 230^82.
Ii84 CONSTITUTIONAL GUARANTIES IN CBIMINAL CASBS. (Ch. 20
challenges to the prosecution, are not unconstitutional." Neither is
a statute allowing the court to admit a juror as competent, although
he has formed and expressed an opinion of the guilt or innocence of
the accused, if the court is satisfied that he will render an impartial
verdict.** The jury must be drawn from the vicinage. This is pro-
vided in the sixth amendment to the federal constitution (which re-
lates, however, only to the United States courts) and in the consti-
tutions of many of the states. But even if this requirement is not
mentioned, still it is a necessary ingredient of trial by jury, as the
same was understood and practiced at common law, and therefore
is to be understood as secured by constitutional provisions which, re-
affirming the common law on this subject, guaranty the right of jury
trial in general terms.*^
The right of trial by jury also includes the right to have the jury
render a verdict, or at least to have their service continue until there
occurs some sufficient legal reason for their discharge. Hence the
unauthorized discharge of the jury is equivalent to an acquittal.*'
And hence, also, after the jury has been impaneled, the state cannot
enter a nolle prosequi without the consent of the accused.** An-
other important safeguard to the accused, in this connection, is the in-
dependence of the jury. In criminal cases the determination of the
law is for the court, and not for the jury; in other words, the jury
are not judges of the law.** But the jury cannot be coerced in re-
spect to the verdict which they shall render, nor are they bound to
28 Dowllng V. State, 5 Smedes & M. (Mies.) 6G4; Walter v. People, 32 N. T.
147; Ilartzell v. Cfom., 40 Pa. 462. See ''Jury,'' Dec. Dig, (Key No.) | SS;
Cent, Dig. S 232.
26 Palmer v. State, 42 Ohio St 596. See *'Jury,'' Dec. Dig. (Key No.) i SS;
Cent. Dig. S 228.
27 People V. PoweU, 87 Cal. 348, 25 Pac. 481, 11 Tj. R. A. 75. But compare
Com. V. Davidson, 91 Ky. 162, 15 S. W. 53, 12 Ky. Law Rep. 767. Excluding
lawyers, doctors, ministers, and some others from service on grand and
petit Juries does not amount to denying due process of law to the accused.
UawUns r. Georgia, 201 U. S. 638, 26 Sup. Ct 560, 50 L. Ed. 899. See ''Jury,''
Dec. Dig. (Key No.) i SS; Cent. Dig. f 229; "Constitutional Tjiw," Dec. Dig.
(Key No.) f 261; Cent. Dig. % 754-
2 8 McCauley v. State, 26 Ala. 135. See "Criminal Law," Dec. Dig. (Key
No.) 1 184; Cent. Dig. ( S40.
29 State V. Thompson, 95 N. O. 596. See ^'Criminal Law," Dec Dig. (Key
No.) § S02; Cent. Dig. H 688^97.
»o Sparf V. U. S., 156 U. S. 51, 15 Sup. Ot. 273, 39 L. Ed. 343. See "Criminal
Law," Dec. Dig. (Key No.) f 731; Cent. Dig. f 1694.
Si§ 258-259) TKIAL BT JUBT. 685
assign reasons for their conclusion. It is their duty to follow the
instructions of the court upon the law of the case. But if they will
not do so, but render a verdict incompatible with the instructions,
they cannot be punished for so doing.' ^
In nearly all the states, it is the understanding that the right of
trial by jury was not intended to be secured except in the prosecution
of indictable offenses, or of such crimes as were triable by jury at
common law. It has not been usual to grant this right in cases where
the offense charged is a trivial or minor misdemeanor, such as comes
under the cognizance of police magistrates or other like judicial of-
ficers. Thus, trials for vagrancy, disorderly conduct, the violation of
police ordinances of cities, disturbing religious meetings, and ordi-
nary breaches of the peace, are not held to be within the class of
prosecutions where trial by jury is claimable as of right.** Again,
it is necessary to remember that not all proceeding^ which may result
in punishment or restraint of liberty are "criminal prosecutions,"
within the meaning of the constitutional clause under consideration.
Thus, a person guilty of contempt of court may be committed to jail
or fined 'without a trial by jury.** So, also, the action of a police
magistrate, in committing a minor child to the industrial school, does
not amount to a criminal prosecution, nor to procedure according to
the course of the common law, and hence the minor is not entitled
to a trial by jury.** So the power given to courts-martial to punish
by fine is not within the provision of the federal constitution securing
trial by jury.**
Although the statute may authorize a trial without a jury in the
first instance, yet if, at the same time, the defendant is granted an
unfettered and unqualified right of appeal, by a simple and reason-
able procedure, and can claim a jury trial in the appellate court as of
M
ti Penn's Case, 6 How. St Tr. 951 ; Bushell's Case, Vaaghan, 135. See
Jury,** Dec. Dig. (Key No.) i S^; Cent. Dig. H 2SS-2SS.
«« Wong V. Astoria, 18 Or. 538, 11 Pac. 295; People v. Justices of Court of
Special Sessions, 74 N. T. 406 ; Byers v. Com., 42 Pa. 89 ; State ▼. Qleno, 54
Md. 572; Inwood v. State, 42 Ohio St. 186; In re Cox, 129 Mich. 635, 89
N. W. 440. ffee "Jury," Dec. Dig. (Key No.) H 20-24; Cent. Dig. §S ISJhloS.
»» Ex parte Grace, 12 Iowa, 208, 79 Am. Dec. 529; Ex parte Terry, 128 D.
S. 289, 9 Sup. Ct 77, 32 L. Ed. 405 ; In re Detw, 158 U. S. 564, 15 Sup. Ct
IKX), 39 li. Ed. 1092. See "Jury^ Dec. Dig. (Key No.) ( 21; Cent. Dig. f 1S9.
«* Ex parte Ah Peen, 51 Cal. 280. See "Jury," Dec. Dig. (Key No.) i 21;
Cent. Dig. { 138.
sBRawson y. Brown, 18 Me. 2ia See **Jury;* Deo. Dig. (Key No.) ^ 11;
Cent. Dig. f 212.
/
686 CONSTITUTIONAL OUASANTIES IN CRIMINAL CA8BS. (Ch. 20
right, it cannot be said that he is deprived of his constitutional right in
this regard.** But this doctrine has been repudiated and denied, so
far as concerns the courts of the United States."
Where a prisoner pleads guilty to an indictment for murder, the
court, if the laws of the state permit, may proceed to inquire on evi-
dence, without the intervention of a jury, in what degree of murder
the accused is guilty, and may find him guilty of murder in the first
degree, and sentence him to death, without violating the constitu-
tional requirement of due process of law.**
PRIVIX.EGE AOAXH8T 8ELF-CBIMIKATIKO EVIDEKCE.
800. The eoBstitntloafly natiomal and Btate, provide thmt no
•hall be eoatpelled* in any eriadbud ease, to lio a
asainet liiateelf, or to famiok eridenee against hiauelf •
This guaranty does not create any new right, but merely re-af-
firms a common-law privilege. It is directed against the extraction
of confessions by torture or otherwise, and against the inquisitorial
method of trial.** The seizure or compulsory production of a man's
private books or papers, to be used in evidence against him, is equiva-
lent to compelling him to be a witness against himself, and, in a prose-
8« Brown y. EppB, 91 Va. 726, 21 S. E. 119, 27 L. R. A. 676; Jones y. Rob-
bins, 8 Gray (Mass.) 829; City of Emporia v. Volnier, 12 Kan. 622; Wong
v. Astoria, 13 Or. 538, 11 Pac. 295. See "Jury,*' Dec. Dig, (Key No.) | S5;
Cent. Dig. i 2^1.
•T Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. Ed. 223. See 'Vury,**
Dec. Dig. (Key No.) § S5; Cent. Dig. ( 2^1.
88 Hallinger y. Davis, 146 U. 8. 314, 13 Snp. Ct. 105, 36 L. Ed. 986. See
^^Constitutional Law,*' Dec. Dig. (Key No.) ( 268; Cent. Dig. § 757.
88 2 ^tory, Const. | 1788. Statements made out of court by the accused,
in the nature of admissions or confessions, may be used in evidence against
him, if they appear to have been made voluntarily, after due warning, and
not under compulsion or duress. Hoch v. People, 219 111. 265, 76 N. E. 356,
109 Am. St Rep. 327 ; State v. Inman, 70 Kan. 894, 79 Pac. 162 ; Steele v.
State, 76 Miss. 387, 24 South. 910 ; State v. Harrington, 198 Mo. 23, 95 S. W.
235. But it may be very gravely doubted whether this important provision
of the constitution is not grossly violated by the practice of police officers in
subjecting persons accused or suspected of crime to what they term the
''sweating process'* or "third degree." At any rate courts should admit evi-
dence BO extorted with very great caution, and only on being thoroughly sat-
isfied of its voluntary nature. See "Criminal Lato," Dec. Dig. (Key NoJ |
S93; Cent. Dig. ff 871-874.
g 260) PBIVILEQE AQAIM 8T 8ELF-CBIMINATINQ BVIDEKCB. 887
cution for a crime, penalty, or forfeiture, is equally within the con-
stitutional prohibition.^^
This privilege, however, is confined to such cases or proceedings as
are criminal in form or criminal in their nature and consequences?
It does not extend to cases involving questions of property only/^
But it applies to proceedings before a grand jury, as well as before
the traverse jury; the defendant cannot be compelled to testify be-
fore the grand jury.** And it applies to all proceedings which, though
civil in form, are really criminal in their nature; such, for example,
as an action under the alien contract labor law to recover the statu-
tory penalty.** And in Massachusetts it is held that the privilege
applies to investigations ordered or conducted by the legislature, or
either of its branches, and such investigations are regulated, in this
respect, by the same rules as are judicial inquiries.**
It is not error to require and compel the prisoner to stand up for
the purpose of being identified by a witness on the stand ; and it is
proper to ask a witness to look around the court room, and point out
the person who committed the offense. This -does not involve com-
pelling the accused to furnish evidence against himself.** But the
«• Boyd T. U. 8., 116 U. 8. (51^, 6 Sup. Ct 524, 29 L. Ed. 746 ; State ▼. Davis,
108 Mo. 606, 18 S. W. 894, 82 Am. St Rep. 640. See Ck>n8olidated Rendering
Co. T. VermoDt, 207 U. S. 541, 28 Sup. Ct 178, 52 L. Bd. 327. But where defend-
ant, resisting a lawfnl arrest, is seized and searched for weapons, and a pistol
taken from him, and he is afterwards indicted and tried for carrying con-
cealed weapons, evidence of the finding of the pistol upon his person is prop-
erly admitted, and violates none of his constitutional rights. Chastang ▼.
State, 83 Ala. 29, 8 South. 804. See **Witne$8es,** Deo. Dig. (Key No.) f 2$S;
Cent Dig. U 1009, 1010. '
^iDeroU v. Brownell, 6 Pidc. (Mass.) 448; Keith v. Woombell, 8 Pidc.
(Mass.) 217. Bee "TFi<ne«9e«/* Dec Dig. (Key No.) | 29S; Cent. Dig. 1 1011.
«s Boone ▼. People, 148 111. 440, 86 N. B. 99. Bee ''Indictment and Informix
tion,** Dec Dig, (Key No.) 1 157; Cent. Dig. | 48S; ''Witneeeesr Dec Dig. (Key
No.) I 299; Cent. Dig. | m2^.
4s Lees ▼. U. S., 150 U. S. 476, 14 Sup. (X 163, 37 L. Ed. 1150. Bee **Wit'
ne$8€S,** Dec. Dig. (Key No.) | 299; Cent. Dig. 1 10J^2'^.
44 In re Emery, 107 Mass. 172, 9 Am. Rep. 22. Bee "Witnessee^** Dec. Dig.
(Key No.) S 29S; Cent. Dig. S 1011.
4ft People ▼. Ghirdner, 144 N. Y. 119, 38 N. B. 1008, 28 L. R. A. 699, 43 Am.
St Rep. 741 ; State t. Johnson, 67 N. C. 55. Identification of the prisoner by
means of a photograph for which he was required to sit Is not unlawful if
there was no excesslTe force or Illegal duress. Shaifer ▼. United State% 24
App. D. <X 417. Bee **Oriminal Law;' Dec Dig. (Key No.) f S9S; Cent. Dig.
I 875.
688 CONSTITUTIONAL GUAaANTIBS IN CRIMINAL CASBS. (Ch. 20
constitutional provision will prevent the court from compelling the
prisoner to submit to an examination of his person, or from com-
pelling him to exhibit to the jury marks, scars, deformities, or other
physical peculiarities, or to try on articles of clothing or footwear, or
to insert his feet into footprints or casts of the same, or from com-
pelling a female prisoner to undergo a surgical examination to de-
termine whether she has borne a child, and other such tests, when
the object thereof is to acquire evidence, as to identity or otherwise^
which may aid in the conviction of the prisoner.**
The constitutional privilege of refusing to give self -criminating
testimony was not intended to shield the witness from the personal
disgrace or opprobrium attaching to the exposure of his crime, but
only from actual prosecution and punishment. Hence if the crime
in which he was implicated was such that a prosecution against him
is barred by the statute of limitations, or if he has already received a
pardon for it, he may be compelled to answer.*^ And a witness can-
not avoid answering any question by the mere statement that the
answer would tend to incriminate him, without regard to whether
the statement is reasonable or not. On the contrary, it is for the
judge before whom the question arises to decide whether an answer
thereto may reasonably have a tendency to criminate the witness, or
to furnish proof of an element or link in the chain of evidence nec-
essary to convict him of a crime. But where, from the evidence and
the nature of the question, the court can definitely determine that
the question, if answered in a particular way, will form a link in the
chain of evidence to establish the commission of a crime by the wit-
ness, the court cannot inquire whether the witness claimed his priv-
ilege in good faith or otherwise. It is only where the criminating ef-
fect of the question is doubtful that the motive of the witness may be
*• People ▼. McOoy, 45 How. Prac. (N. Y.) 216; State ▼. Jacobs, 50 N. a
259; Blaekwell v. State, 67 Ga. 76, 44 Am. Rep. 717; People y. Mead, 50
Mich. 228, 15 N. W. 95 ; Stokes v. State, 5 Baxt (Tenn.) 619. 30 Am. Rep. 72 ;
Union Pac. Ry. CJo. v. Botsford, 141 U. S. 250, 11 Sup. Ct 1000, 35 L. Ed.
734 ; State v. Height, 117 Iowa, 650, 91 N. W. 935, 59 L. R. A. 437, 94 Am. St
Rep. 823; State v. Jones, 153 Mo. 457, 55 S. W. 80; State v. Miller, 71 K J.
Law, 527, 60 Atl. 202; Davis ▼. State, 131 Ala. 10, 31 South. 569; State ▼.
Graham, 116 La. 779, 41 South. 90. But this rule Is not universally admitted.
See State v. Ah Chuey, 14 Nev. 79, 33 Am. Rep. 530 ; State v. Johnson, 67 N.
a 55. See "Criminal Law,** Dec. Dig, (Key No.) S 895; Cent. Dig. %% 875, 87-J.
4T Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 644, 40 L. Ed. 819; Chllds v.
Merrill, 66 Vt. 302, 29 Atl. 532. See ''Witne99e9;* Dec Dig. (Key No.) §f 293,
SOS; Cent. Dig. U lOH, 1049, 1050.
§ 260) PRTVILEGK AGAINST 8ELF-GBIMINATINO EYIDENOB. 689
considered, for in such case his bad faith would tend to show that
his answer would not subject him to any danger.**
In the great case of Counselman v. Hitchcock,** it was held that
this provision in the federal constitution was not confined to a crim-
inal case against the party himself, but that its object was to insure
that one should not be compelled, when acting as a witness in any
investigation, to give testimony which might tend to show that he
had committed a crime. It was also held that Rev. St. U. S. § 860
(U. S. Comp. St. 1901, p. 661), which provides that no evidence given
by a witness shall be in any manner used against him in any court of
the United States in any criminal proceedings, did not supply a com-
plete protection from all the perils against which the constitutional
prohibition was designed to guard, and was not a full substitute for
that prohibition; and that it afforded "no protection against that use
of compelled testimony, which consists in gaining therefrom a knowl-
edge of the details of a crime, and of sources of information which
may supply other means of convicting the witness or party." But a
later act of congress provides that no person shall be excused from
giving evidence or testifying before the interstate commerce commis-
sion on the ground that the evidence or testimony would criminate
him, but that no person shall be prosecuted or subjected to any pen-
alty or forfeiture for or on account of anything concerning which he
may testify or prorUice evidence before said commission. And it is
held that this act completely shields the witness against any criminal
prosecution which might be aided, directly or indirectly, by his testi-
mony, and in effect operates as a pardon for the offense to which it
relates, and therefore the act is not in conflict with the provisions
of the constitution."*
In many of the states, it is the privilege of the prisoner to testify
in his own behalf if he chooses to do so, and, if he does, he may be
cross-examined like any other witness. But, if he prefers not to take
the stand, it would not be right that he should be exposed to any
prejudice in consequence of his omission to do so, for in that case he
would not receive the full benefit of his constitutional privilege. Con-
*• Ex parte Irvine (C C.) 74 Fed. 954, B^e **Witnes$e8/* Dec. Dig. (Key Ifo.)
I S08; Cent. Dig. U 1065-1067.
«• 142 U. S. 647, 12 Sup. Ot 195, 35 L. Ed. 1110. See **Witne89e8,*' Deo. Dig.
(Key No.) || 297, S04; Cent. Dig. || 1026-1057, 1051, 1052.
BO Brown ▼. Walker, 161 U. S. 591, 16 Sup. Ct 644, 40 Ii. Bd. 819. Bee **Wii-
neeeet,*' Dec Dig. (Key No.) | 804; Cent. Dig. 1 1052.
Bl.Oon8T.I4.(8i>.Bd.)— 44
690 COK8TITUTIOKAL GUARAHT1B8 IN CRIMINAL CASKS. (Ch. 20
sequently, in those states, it is usually forbidden to the court and coun-
sel to make any comment on the prisoner's omission to testify, or
to draw any inferences therefrom with a view to influencing the jury.
COHFBOHTIHG .WITH WITNESSES.
261. It is a •eastitmtloBal lis^t •£ a penom oa trial far a eviiaiaal
oMemme ta be eoaf roated with the witmesMfl acaiast hiat, or ta
the witaesMS f aee ta f i
This constitutional guaranty was intended as a safeguard against
secret and inquisitorial methods of trial, and to secure to the defend-
ant the privilege of sifting and trying the evidence adduced against
him, by cross-examination.*^
The right to be confronted with the witnesses can be invoked only
in criminal cases properly so called. It is not claimable as a matter
of constitutional right in an action to enforce a forfeiture or penalty
under the revenue laws,** nor in proceedings for contempt because
of the violation of an injunction.** But in all criminal prosecutions
of whatever sort or degree, the accused has the right to be confronted
with the witnesses against him. Thus, on the trial of an impeach-
ment, a law requiring the taking of testimony by examiners, not in
the presence of the court, cannot be put into effect without violating
the rights of the accused.**
The admission of dying declarations as evidence in a murder trial
is not repugnant to this constitutional provision. The reason is that
the ''witness against him" in this case is the person who narrates the
Bi It is error to permit a witness to tnm her back to the accused aod to
direct his remoyal to a distaoce of 24 feet from her, so that he cao oeither
see Dor hear the witness. State ▼. Mannion, 19 Utah, 505, 57 Pac. 542, 45 L. R.
A. 638, 75 Am. St. Rep. 758. When the accused is deaf, some proper plan must
be devised for enabling him to know what the witnesses are saying, and it is
proper to allow his counsel to write down the testimony as the trial goes on
and hand It to him to read. Ralph ▼. State, 124 Ga. 81, 52 S. E. 288, 2 Lu R.
A. (N. S.) 50G. Bee ''Criminal Law," Dec. Dig. (Key No.) | 662; Cent. Dig.
n 1538-1548.
fi> U. S. ▼. Zucker, 161 U. S. 475, 16 Sup. Ct 641, 40 L. Ed. 777. Bee ''CHm-
Iffial Lair," Dec. Dig. (Key No.) | 662; Cent. Dig. || 15S8-1548.
fts State ▼. Mitchell, 8 S. D. 223, 52 N. W. 1052. Bee ''CHminal Law,*' Dec.
Dig. (Key No.) | 662; Cent. Dig. » 15S8-154S.
B« State T. Buckley, 64 Ala. 509. Bee "Offlvera,** Dec. Dig. (Key No.) { IS;
Cent. Dig. 1 100.
§ 261) OONFBONTINQ WITH WITNESSSa 691
declaration made by the decedent, or who produces and identifies
the same, if it was reduced to writing/* And depositions in a crim-
inal case, taken de bene esse, under a stipulation by counsel that they
shall be read on the trial with the same force and effect as if the wit-
nesses had testified, are not open to objection on this ground.*^* On
the same principle, the reading in evidence, on a trial for a criminal
offense, of a deposition taken, or notes of evidence made, on the pre-
liminary examination before a magistrate, in defendant's presence,
when he had an opportunity to cross-examine the witness, who is
dead or out of the jurisdiction or not to be found at the time of the
trial, is not a denial of defendant's right to be confronted with the
witnesses.*^ A statute providing that a continuance in a criminal
case for the absence of a material witness may be defeated by an ad-
mission that such witness, if present, would testify as alleged in the
affidavit for continuance, without admitting the absolute truth of his
testimony, is not in conflict with this constitutional guaranty.*' And
if the defendant consents, the court may properly send the jury, un-
accompanied by the defendant, to inspect the premises where the
crime was committed, as such view does not constitute evidence in
the case, but is merely intended to enable the jury to understand and
apply the evidence.**
Although the accused has the right to be confronted with the wit-
nesses against him, yet if they are absent by his wrongful procure-
ss Mattox T. U. S., 1S6 U. S. 237, 16 Sup. Gt. 837, 89 L. Ed. 409; State y.
Baldwin (Wash.) 45 Pac. 650 ; Green ▼. State, 66 Ala. 40, 41 Am. Refi. 744 ;
Bobbins t. State, 8 Ohio St 131 ; Walston ▼. Com., 16 B. Mon. (Ky.) 16 ; State
▼. Dickinson, 41 Wis. 299; People ▼. Green, 1 Denio (N. Y.) 614. See ^SonW
eid^:' Dec, Dig. (Key No,) | 200; Cent. Dig, | 4£7.
•• People T. Mollns (Gen. Sese.) 10 N. Y. Sapp. 180. But the general role
ia that deposltiona cannot be used in criminal trials. Price t. State, 71 Ark.
180, 71 S. W. 948 ; People v. Sligh, 48 Mich. 54^ 11 N. W. 782 ; Com. ▼. Zo-
rambo, 205 Pa. 109, 54 Atl. 716 ; Garza v. State, 43 Tex. Ct, R. 409, 66 S. W.
lOOa Bee *'CHminal Law,*" Dec. Dig. (Key No.) | €62; Cent, Dig. | 15S9.
KT Mattox ▼. U. S., 156 IT. S. 237, 15 Sup. Ot 837, 89 L. Ed. 409 ; People y.
Fish, 125 N. Y. 136, 26 N. B. 319 ; People v. Dowdigan, 67 Mich. 95, 88 N. W.
920 ; (Tom. v. deary, 148 Pa. 26, 23 Atl. 1110 ; State y. Harman, 27 Ma 120.
See Criminal Law;' Dec, Dig. (Key No.) S 662; Ceni. Dig. U ISit^lSH.
fts Keating y. People, 160 111. 480, 43 N. E. 724; Hoyt y. People, 140 111. 688»
80 N. B. 316, 16 L. R. A. 239. See "Criminal Law,*" Dec Dig. (Key No.) f 600;
Cent. Dig. f 1646.
ft* Shular y. State, 105 Ind. 289, 4 N. B. 870, 55 Am. Rep. 211. Gompare
State y. Bertin, 24 La. Ann. 46. See **Criminal Law;* Dec Dig. (Key Ma.)
f 666; Cent. Dig. | Wi.
692 CONSTITUTIOMAL GUABANTIBS IN CRIMINAL CASES. (Ch. 20
menty or when enough has been proved to cast upon him the burden
of showing that he has not been instrumental in concealing them or
keeping them away, and he, having full opportunity therefor, fails to
show this, then he is in no condition to assert that his constitutional
right has been violated if the court allows competent evidence of the
testimony which they gave on a previous trial between the govern-
ment and him on the same issue; such evidence is admissible/®
OOMPEIXniG ATTElfDAHOE OF WITNESSES.
262. The eomstitutloiiml right of the defendant in a eriminal prose-
ention to haTo eompulsory process for seourins the attendance
of wltmeMes in his hehalf grows ont of the right of snoh de-
fendant to rehnt the charge hronght against hin&, hy the testi-
n&ony of witnesses, and includes the right to examine snoh
witnesses and to compel them to answer admissible questions
under oath.
The right of a person accused of crime to adduce testimony in his
own behalf was not a common law right, at least in cases of treason
or felony, nor, comparatively speaking, was it of very early origin in
English law. The privilege of having witnesses speak to exculpatory
facts was grudgingly accorded, but they were not put under oath,
and their statements were consequently not regarded as evidence
which the jury must take into account. It was not until the first year
of the reign of Anne that the same privilege in this respect was
granted to the prisoner as to the crown. But the recognition of this
right was regarded as one of the most important of the reforms in
the law of criminal procedure, and the right itself was justly con-
sidered by the framers of our constitutions as one of the most valu-
able guaranties of liberty.**
A statute which permits the prosecuting attorney to admit that an
absent witness would testify to the facts as set forth in the affidavit
on motion by the defendant for a continuance, if he were personally
present, and thereby compel the defendant to go to trial without
the benefit of his testimony, is unconstitutional.** But this right does
•0 Reynolds ▼. U. S., 98 U. S. 145, 25 L. Ed. 244. See **OrinUfMl Law,**
Dec. Dig, (Key No.) § 662; Cent. Dig. § 154t.
•1 See 4 Bl. Ck>mm. 360, 441.
•2 State V. Berkley, 92 Mo. 41, 4 S. W. 24. But the refusal of the court to
oontinue a criminal case on account of Hie absence of a material witness
g 263) BIGHT TO BK PRESENT AT TRIAL. 693
not give the accused a claim against the state for pa3mient of the fees
of the witnesses summoned in his defense.** But a rule of court
prohibiting the issue of more than five subpoenas for witnesses with-
out an order of court, obtainable on application showing the material-
ity of the witnesses, violates defendant's constitutional right to have
compulsory process for obtaining witnesses.** And a statute pro-
viding that whoever steals property in another state or country, and
brings it into the state enacting the statute, may be punished for lar-
ceny, violates this provision of the constitution, since process of a
court of that state cannot reach witnesses where the property was
taken.**
BIGHT TO BE PBESENT AT TBIAIi.
263. The richt of a pemon oluiTKed with erime to be present at hie
tiial is elaimable in all eases of f elomy where his life or liberty
is put in Jeopardy, and it inelndes the richt to be personally
present in eonrt at eaeh and OTory material step whieh afteets
the snbstantiTe question of his snilt or innooenee.
The right of the defendant in a criminal prosecution to be present
at his trial, though not usually specifically granted by the constitu-
tions, follows necessarily from his right to be heard and to be con-
fronted with the witnesses against him, and from the prohibition
against depriving him of his life, liberty, or property without due
process of law.
The prisoner must be present at each stage of the trial, from the
impanelling of the jury to the sentence. But matters of routine or iL-
motions not affecting the merits may be determined in his absence, '
unless it is shown that he was prejudiced thereby.** He may also
residing in another state is not a denial of doe process of law. Minder t.
Georgia, 183 U. S. 559, 22 Sup. Ct 224, 46 L. Ed. 32a Bee ^'OHminal Law,"
Dec. Dig, (Key No.) | 600; Cent. Dig. 1 1S43; ^^Constitutional Law,'* Dec. Dig.
(Key No.) | «57; Cent. Dig. H UO, 7^7.
•s State V. Waters, 39 Me. 54. And see Jenkins t. State, 31 Fla. 190, 12
South. 680. See "Costa," Deo. Dig. (Key No.) | SIO; Cent. Dig. i il77.
•4Aikin y. State, 58 Ark. 544, 25 S. W. 840. See "Witnesses,*' Dec Dig. (Key
No.) I «; Cent. Dig. « 2-4-
•8 Territory ▼. Hefley, 4 Ariz. 74, 33 Pac. 61& See **CrinUnal Law,'* Dec.
Dig. (Key No.) | 8i; Cent. Dig. | 111.
•• Weirman v. United States, 36 Ct CL 236 ; Bobeits y. State, 111 Ind.
840, 12 N. E. 500 ; Bond v. Com., 83 Va. 581, 8 S. B. 149 ; State r. Oreer, 22
W. Va. 800. It is also a part of the priaoner*8 right that the Judge shall be
694 CONSTITUTIONAL GUARANTIES IN CRIMINAL CASES. (Ch. 20
forfeit his right to be present by his own misconduct If he is so
boisterous, unruly, or disorderly that it becomes necessary to remove
him from the court-room in order to allow the trial to proceed, this
may be done, without infringing upon his constitutional rights, ex-
cept, perhaps, in capital cases.*' A charge of a mere misdemeanor,
or breach of a police ordinance, may lawfully be tried in the absence
of the accused, if he was legally arrested.**
While the prisoner must be present in the trial court when sentence
is passed upon him, yet it is not essential that he should be present
in an appellate court when the latter affirms the judgment of the
trial court, without passing any new judgment. He has no consti-
tutional right in that regard, and the sentence, thus affirmed, is not
invalid because of his absence.**
ASSISTAHOE OF OOUNSEIu
S64. The oo]i«tltmtion of ike Uiiited States, and the oonstitvtioiui of
many of the Btates, provide that the aeoiuied shall have the
asslstamoe of emmael for his defense*
Although it was permitted by the common law that an accused
person should have the .benefit of the advice and assistance of counsel,
it was not until a comparatively recent period in English law that
counsel for the prisoner were allowed to address the jury in his
behalf. Under our constitutional provisions, the right to have the
assistance of counsel includes the right of the prisoner to have a pri-
vate intervieiV and consultation with his counsel before the trial, or
even before indictment found, if he is under arrest, in order to take
present and preside during the entire trial. If the judge is absent from the
court room for any considerable time, even when counsel are arguing to the
Jury, and the defendant Is convicted of a felony, he may claim that he is
deprived of his liberty without due process of law. People v. Tupper, 122
OaL 424. 55 Pac. 125. 68 Am. St Rep. 44. See '^Criminal Law,** Dec Dig.
(Key No J §S 6Sh 656; Cent Dig. H U61-1482; ''Oonstitutianal Law,** Dec
Dig. (Key No.) | 268; Cent. Dig. || 756, 757.
•T U. S. V. Davis, 6 Blatchf. 464, Fed: Cas. No. 14,923. See "Criminal Law,**
Dec Dig. (Key No.) § 6S6; Cent. Dig, H U65-H82.
•■ City of Bloomiugton v. Heiland, 67 111. 278. And see Wells v. State, 147
Ala. 140. 41 South. 630. See ^'Criminal Law,** Dec Dig. (Key No.) | 636;
Cent. Dig. | IW-
e» Schwab v. Berggren, 143 U. S. 442, 12 Sup. Ct. 525, 36 L. Ed. 21& See
*Vriminal Law,** Dec Dig. (Key No.) 1 1132; Cent. Dig. | 2982.
§ 264) ASSISTANCE OF COUNSEL. 695
his advice and instruct him as to the defense to be made.^* And
the fact that one accused of crime is hunself a lawyer does not de-
prive him of the right to be represented by counsel, and he must be
given an opportunity to procure professional assistance in his de- ^
fense.^^ But the guaranty that a person accused of crime sh^l be
entitled to the assistance of counsel does not include a guaranty that
such counsel shall be furnished at the expense of the public.^*
An important part of the right secured by this provision of the con-
stitutions is that it secures to the prisoner's counsel freedom and
independence in his management of the case and in his examination
of witnesses and his comments and arguments. Subject to such re-
strictions as are necessary to secure the dignity of the court, and to
the ordinary rules of propriety, he may say and do all that he deems
necessary for the defense of his client, and for what he may utter
in the course of the trial he is not to be held to account elsewhere,
unless, indeed, he wantonly departs from the evidence and point in
issue, and maliciously and slanderously abuses the private character
of some person concerned.''* And that counsel may be free to at-
tend to the business of his client without hindrance or interruption,
he will be exempt from the service of process upon him while he is
actually in attendance upon the court in the interests of the client.^^
Furthermore, in order that the accused may be safe in confiding
freely in his counsel, it is a rule that communications passing be-
tween them, made with a view to the expected or pending trial, are
"privileged," and counsel will neither be forced nor allowed to divulge
such communications without the consent of the client. "To entitle
TO People T. Riseley, 18 Abb. N. O. (N. Y.) 180. See ""Criminal Lata,*' Dec
Dig. (Key No.) | 641; Cent. Dig. | 1496.
Ti Pe<^le T. Napthaly, 106 Cal. 641, 39 Pac. 29. If the prisoner is unable or
unwilling to employ counsel, the court may assign counsel for bis defense
from among the members of the bar present at the trial. Delk v. Stale, 99
Ga. 667, 26 S. E. 752; Simmons ▼. State, 116 Oa. 583, 42 9. B. 779. See
"Criminal Law;' Deo. Dig. (Key No.) S 641; Cent. Dig. §f 1496-1506.
Ts Honk ▼. Board of Com'rs of Montgomery County, 14 Ind. App. 662, 41
N. B. 106& See '"Criminal Law;' Dec. Dig. (Key No.) | 641; Cent. Dig. |
1496.
T8 Munster y. Lamb, 11 Q. B. Dtv. 588. And see Gray v. Pentland, 2 Serg.
& R. (Pa.) 23. See ""Criminal Law,** Dec. Dig. (Key No.) S 101 ; Cent. Dig. U
1496-1506.
T4 Central Trust Ca r. MUwaukee St Ry. Co. (C. C.) 74 Fed. 442. See "*Wit'
netses,** Dec. Dig. (Key No.) | 5; Cent. Dig. f 8; ""Attorney and Client,** Dec.
Dig. I 16; ""Proce$8;* Cent. Dig. | 147.
t'
696 CONSTITUTIONAL GUARANTIES IN CRIMINAL CASES. (Ch. 20
a communication to be privil^ed, it is not essential that it should
be made with any special injunction of secrecy, or that the client
should understand the extent of the privilege. But if it be made
with a view to professional employment, and in reference to such
employment in legal proceedings pending or contemplated, or in any
other legitimate professional services, wherein professional aid or
advice is sought respecting the rights, duties, or liabilities of the cli-
ent, it will fall within the privilege, and cannot be disclosed by counsel.
This, however, is a rule of law for the protection of the client which
he is at liberty to waive." '• But an attorney may be required to
produce documents placed in his hands by his client when the client
is charged with a criminal offense in respect to such documents, as,
where he has forged an instrument and placed it in the hands of his
attorney when his crime was detected.''* "And the privilege does
not extend to parties seeking for information or advice as to the best
mode of infringing the law; communications of an intended offense
must be disclosed." *'
BIGHT TO BE HEARD.
866« A pomott on trial for a orimiiial oiPeiuie has a oonstitvtioiial
risht to be heard in Ids own defense in person and by eonnself
bnt the enereise of this right may be restrained within rea*
sonable limits.
"The court has no discretionary power over the right itself, for it
cannot be denied. And hence it has no right to prevent the accused
from being heard by counsel, even if the evidence against him be
clear, unimpeached, and conclusive in the opinion of the court. But
the exercise of the right is subject to judicial control to the extent
that is necessary to prevent the abuse of it." Hence the court may,
in its discretion, limit the time allowed to the accused or his counsel
for argument, provided the prisoner is not thereby deprived of a fair
trial and a full hearing.'' • Where a witness was fully cross-examined
TB McLellan t. LungfeUow, 82 Me. 494, 54 Am. Dec. 590. And see Sargent
▼. Inhabitants of Hampden, 38 Me. 581; State ▼. Dawson, 90 Mo. 149, 1
S. W. 827. See "WUnessesr Deo. Dig. (Key NoJ || 205, 219; Cent. Dig. M
765, 781, 78$.
76 Reg. Y. Brown, 9 Cox Gr. Cas. 281. Bee ''Criminal lMU>r Dec Dig. (Key
yo.) I 641; Cent. Dig. |S 1496-1506.
TT Weeks, Attys. at Law (2d Ed.) | 170.
Tt DiUe Y. State, 34 Ohio St 617, 32 Am. Rep. 395; Hart Y. State, 14 Neb.
§ 266) 8PBBDT AND PUBUG TBIAU 097
by the prisoner's counsel, and then permission was asked for the de-
fendant to examine the witness himself, but was refused, it was ad-
judged that the court did not thereby infringe or deny the prisoner's
constitutional right of defense by himself, his counsel, or both.^* Un-
less changed by statute in the particular jurisdiction, the general rule
is that in all criminal trials the prosecution has the right to open the
case and to make the closing argument to the jury, since the state
must assume the general burden of proving the guilt of the accused.*®
A person charged with crime has a right to plead, free from restraint
and fear of violence; and where the accused is forced, through ter-
ror of mob violence, to enter a plea of guilty, he has a right to re-
lief from the judgment entered on such plea.** It is also a rule that
counsel for the prosecution, in his argument to the jury, must keep
within the limits of the evidence. If his remarks include statements
or suggestions, calculated to prejudice the jury against the prisoner
and to induce a verdict against him, which are not warranted by
anything contained in the evidence in the case, such misconduct, un-
less promptly and adequately neutralized by the court, may be ground
for giving the defendant, upon conviction, a new trial.**
BPEEDT AHD PUBUO TRIAI
«•
266. Amother protootion to those oluircod with orimo is fowad Im tho
oonstitvtloiial K^mrmntj that they shall have tho benefit of a
speedy and pubUe trial.
Speedy Trial,
By a speedy trial is meant a trial conducted according to fixed
rules, regulations, and proceedings of law, free from vexatious, ca-
pricious, and oppressive delays manufactured by the ministers of jus-
572, 16 N. W. 905; State r. Boasso, 38 La. Ann. 202. See **Oriminal Laic,*'
Dec. Dig. (Key No.) | 711; Cent. Dig. 1 1657.
T» Roberts ▼. State, 14 Ga. 18. See '*Witne8se8,*' Dec. Dig. (Key No.) | 266;
Cent. Dig. § 910.
■• Loeffner y. State, 10 Ohio St 508 ; State ▼. SchneUe, 24 W. Va. 767 ; U.
S. ▼. Bates, 2 Cranch, C. C. 405, Fed. Cas. No. 14,543. See **Criminal Law,*'
Dee. Dig. (Key No.) | 645; Cent. Dig. U 15(n-1509; ^'Homicide,'' Cent, Dig.
1554.
•1 Sanders ▼. State, 85 Ind. 818, 44 Am. Rep. 29. See **Crifninal Law.**
Dec. Dig. (Key No.) | £75; Cent. Dig. | 6St.
•2 See Epp6 V. State, 102 Ind. 539, 1 N. E. 491. Bee "CrinUtMl Lato," Dea
Dig. (Key No.) f 7S0; Cent. Dig. f 169S.
\'
698 CONSTITUTIONAL QUARANTIB8 IN CRIMINAL CASES. (Ch. SO
tice.** "The speedy trial to which a person charged with crime is en-
titled under the constitution is a trial at such a time, after the finding
of the indictment, regard being had to the terms of court, as shall
afford the prosecution a reasonable opportunity, by the fair and hon-
est exercise of reasonable diligence, to prepare for a trial; and if
the trial is delayed or postponed beyond such period, when there
is a term of court at which the trial might be had, by reason of the
neglect or laches of the prosecution in preparing for trial, such delay
is a denial to the defend&nt of his right to a speedy trial," and he
is entitled to be discharged from imprisonment on habeas corpus.**
But if the defendant demands a jury trial after the panel of jurors
has been discharged, it is no violation of this right for the court to
continue the cause on its own motion until such time as a jury can be
lawfully impanelled.**
Public Trial.
The guaranty of a "public" trial is intended to secure to the ac-
cused the help and countenance of his friends and counsel and of
those who could assist him in his defense. This right does not abridge
the power of the trial court, in certain emergencies, as when it be-
comes necessary to clear the court-room in the interests of the public
morals, or to expel a boisterous and unruly audience, to protect an
embarrassed or intimidated witness, or to exclude, for other good rea-
sons, all but a reasonable and respectable number of the public, al-
lowing those only to remain who are in attendance on the court or
are its officers and members of its bar and those who can be of help
or service to the prisoner.**
88 Stewart t. State, 13 Ark. 720; NixoD v. State, 2 Smedes & M. (Miss.)
497, 507, 41 Am. Dec. 601; Ex parte Stanley, 4 Nev. 113, 116; Beavers y.
Haubert, 198 U. S. 77, 25 Sup. Ct 573, 49 L. Ed. 950; Sample ▼. State, 138
Ala. 259, 36 South. 367; People v. Moran, 144 Cal. 48, 77 Pac. 777; Marzen
V. People, 190 111. 81, 60 N. B. 102. Sec **Criminal Law," Dec. Dig. (Key No.)
I 575; Cent. Dig. f 1292.
8* U. S. ▼. Pox, 8 Mont 512, 517. See '^Criminal Lato,"* Dec Dig. (Key No.)
I 57S; Cent. Dig. | 1292.
•8 City of Creston v. Nye, 74 Iowa, 369, 37 N. W. 777. See ''Criminal Law,**
Dec. Dig. (Key No.) | 575; Cent. Dig. 1 1292.
88 People ▼. Swafford, 05 Cal. 223, 3 Pac. 809 ; People t. Murray, 89 Midi.
276, 50 N. W. 995, 14 L. R. A. 809, 28 Am. St. Rep. 294 ; Benedict ▼. People,
23 Colo. 126, 46 Pac. 637; Jackson ▼. Com., 100 Ky. 239, 38 S. W. 422, 18 Ky.
Law Rep. 795, 66 Am. St, Rep. 336 ; People v. Yeager, 118 Mlch.^ 228> 71 N.
W. 491; People v. Hall, 51 App. Dlv. 57, 64 N. Y. Supp. 433;' Kugadt y.
State, 38 Tex. Cr. R. 681, 44 8. W. 989. Trial Judges should not permit the
§§ 267-269) TWICE in jeopardt. 699
TWICE III JEOPABBT.
Sft7. By tke ovnstitmtlom of tho Uiiited Stateo, as w«ll as tlM eonstl-
tntions of most of tho sororal statos. It is provided tliat ao man
s]udl» for the sano offonso^ bo twloo yvt Im Joopaidy.
S68. Jeopardy atoans daaser of pvaislunomt.
S60. A man is eoasidorod to liaTO boom put Im Jeopardy whom a valid
and suflleiont iadletmeat or imf ormatioa has heom legally found
acainst him and duly presented to a oovrt of eompetent Juris-
dietion orer both the person and the offense, and thereupon he
has been arraigned and has ploadedt and ajpwfal Jii'ij hss
been impanelled and sworn and ,f^5Tgftfl.-i^ t*r tlir n**^ and
render a ▼erdiet. "— — — ""^"^
This privilege, like many other valuable guaranties in criminal cases,
IS not the creature of the constitutions, but has its roots deeply im-
bedded in the universal principles of reason and justice, and derives
its substance from the ancient and uninterrupted rules and practices
of the common law.*^ It is true that at common law the right was
restricted to the highest grades of crimes, and the retention, in many
of the constitutions, of the ancient phrase "jeopardy of life or limb"
would seem to indicate that, in this respect, the common law was to
be adopted and followed. But numerous states, in incorporating the
provision in their constitutions, have omitted the limiting words. And
in all, it is believecl, the process of judicial construction, proceeding
on the rule that a remedial provision and one making in favor of lib-
erty is to be liberally interpreted, has extended the right so as to make
it apply to all indictable offenses, including misdemeanors. This provi-
sion, it is said, extends the common law maxim, nemo debet bis puniri
pro uno delicto, which was limited to felonies, to all grades of of-
fenses. And it is but the application to criminal jurisprudence of a
more general maxim, namely, that no one shall be twice vexed for
one and the same cause. The object of incorporating it in the funda-
mental law was to render it, as respects criminal causes, inviolable
by any department of the government.'*
prosecuting attorney or any one else to hold private conferences with them
in respect to any issue arising on the trial of a criminal cause. Peaden ▼.
State, 46 Fla. 124, 35 South. 201 See "CrinUnol Law,** Dec Dig. (Key No.)
I 6S5; Cent. Dig. f 1^52.
■T 4 BI. Comm. 835.
SI State T. Behimer, 20 Ohio St. 572. See Berkowitz t. United States, 08
Fed. 452, 35 O. C. A. 379, holding ttiat the proviaion in the fifth amendment
700 CONSTITUTIONAL GUARANTIES IN CRIMINAL CASES. (Ch. 20
Bletnents.
In order to constitute legal jeopardy, all the elements enumerated
in the text above must concur. And in the first place, there must be
a valid indictment. If the indictment is so defective in form or sub-
stance that a conviction founded upon it would be at once set aside
for that cause alone, there is no legal jeopardy. Thus, it must be
found by a legally constituted grand jury.** And it must charge an
offense recognized and denounced by the law under which the trial
is to be had, and must set forth the charge formally and sufficiently.
It must not only state all the facts which constitute the offense in-
tended to be charged, but must state them with such certainty and
precision that the defendant may judge whether they constitute an in-
dictable offense or not, and may demur or plead accordingly, and may
be able to plead his conviction or acquittal in bar of another prosecu-
tion for the same offense.**
In the next place, the proceeding must be had before a court of
competent jurisdiction. That is, the court must have jurisdiction of
the person, bj^ lits being legally before it, and it must have jurisdiction
of the offense. And in order to comply with the latter requisite, the
crime charged must be one which is defined and made punishable
by the law under which the court acts, and which the same law has
committed to the jurisdiction of the particular court, or to courts
of the grade or character of the particular court, and further, the of-
fense must have been committed within the territorial limits to which
the jurisdiction of the court extends. Thus, an acquittal by a jury
in a court of the United States of a defendant who is there indicted
for an offense of which that court has no jurisdiction, is no bar to an
indictment against him for the same offense in a state court having
jurisdiction.** Aqd again, the court must be a competent and law-
applies to misdemeanors as weH as to treason and felonies. Bee "Criminal
Law,*' Dec. Dig, (Key No.) | 16S; Cent. Dig, § 288.
s»Finley v. State, 61 Ala. 201; Sims ▼. State, 146 Ala. 100, 41 South. 413;
1'. People V. Ammerman, 118 Oal. 23, 50 Pac. 15; State v. Manning, 168 Mo. 418,
68 S. W. 841. See **Criminal Law," Dec. Dig. (Key No.) | 170; Cent. Dig.
II 912S21.
?• State T. Taylor, 84 La. Ann. 978; Davidson ▼. State, 99 Ind. 366; Fink
▼. MUwaukee, 17 Wis. 26. Bee ''Criminal Law,** Dec Dig. (Key No.) | 110:
Cent. Dig. U S12S21.
•1 Brown v. State, 120 Ala. 378, 25 South. 203; State ▼. Jamison, 104 Iowa,
343, 78 N. W. 831; Ck>m. v. Peters, 12 Mete. (Mass.) 387; State v. Cross, 44
W. Ya. 315, 29 S. B. 527. The fact that one has been once arrested and ex-
S§ 267-269) TWICE in jeopabdt. 701
ful court. For if it is organized and acting under an unconstitutional
statute, it is no court, and its judgments are nullities, and no legal
jeopardy can arise from a trial before it.**
In the next place, jeopardy does not arise until there has been an
arraignment and^ plea. If there is no arraignment, or a waiver of
it, the trialis a nullity, and jeopardy does not attach.** And until
the defendant has entered his plea, or it has been entered for him
upon his refusal to plead, he cannot be put in jeopardy.**
Finally, the jury must be sworn and impanelled and charged with
the prisoner's deliverance. (The last phrase means that they are
charged to try the case and render a true verdict upon the law and
evidence.) At this point, according to the general consensus of judi-
cial opinion, jeopardy attaches,** and whatever proceedings may
thereafter be had in the case, the prisoner cannot be again tried for
the same offense. It seems to be conceded, however, that if the jury
are discharged without a verdict on account of some imperative ne-
cessity, such as the sickness of the judge, or the sickness, insanity, or
misconduct of a juror, a second trial may lawfully be had. And some
very respectable authorities hold that if the jury are discharged be-
cause they cannot agree upon a verdict or if judgment upon the ver-
dict has been arrested, or even if there is a failure to obtain a verdict
for any cause, there is no legal jeopardy. The discussion of this
a mined before a magistrate and discharged is not a bar to a second arrest
and examination on the same charge. Ex parte Fenton, 77 Cal. 183, 19 Pae.
267. See '*Cnfninal Late," Dec. Dig. (Key No.) | 167; Cent. Dig. H SOJfSll.
•s Rector v. State, 6 Ark. 187; McGinnis ▼. State, 9 Humph. (Tenu.) 43, 49
Am. Dec. 697. A former trial for a crime, wherein the proceedings were void
because of the disqualification of the Judge, will not support a plea of former
jeopardy. Bx parte Graham, 43 Tex. Cr. R. 463, 66 S. W. 840, 96 Am. St.
Rep. 884. See '^Criminal Law,*' Dec. Dig. (Key No.) f § 166, 187; Cent. Dig.
f I S09, S68.
•sNewsom v. State, 2 Ga. 60; Davis v. State, 38 W1& 4S7; Douglass v.
State, 3 Wis. 820. See **CHminal Law,*' Dec. Dig. (Key No.) f 111; Cent.
Dig. |§ S2t-S24.
•« Douglass ▼. State, 8 Wis. 820. See **Criminal Law,*' Dec Dig. (Key No.)
S 111; Cent. Dig. H S22-St4, 612.
•• State ▼. Snyder, 98 Mo. 555, 12 S. W. 869; Bx parte Tice, 32 Or. 179,
49 Pac. 1038; State ▼. Parish, 43 Wis. 895. A nolle prosequi entered before
the commencement of the trial is no bar to a subsequent prosecution. State
y. Ingram, 16 Kan. 14 ; Bacon v. Towne, 4 Cash. (Mass.) 217 ; State ▼. Munroe,
26 R. I. 38, 57 Atl. 1057. See '^Criminal Law," Deo. Dig. (Key No.) U 172, 17$;
Cent. Dig. || SOl-^SOS, 326, S27.
II
J
J
J-
y ■'!
702 CONSTITUTIONAL QUARANTIES IN CRIMINAL CASBS. (Ch. 20
question does not fall within the scope of this work, but some of the
instructive cases are referred to in the margin.**
The second prosecution must be for the same offense. The offenses
charged in the two indictments must be the same both in law and fact.
The test for determining their identity is said to be the question
whether or not the facts set forth in the second indictment, if proved
to be true, would have warranted a conviction under the first indict-
ment, or whether or not the facts charged in the second constitute
one and the same transaction with that alleged in the first.*^ Where
an indictment contains several counts, and the prisoner is acquitted on
some counts and convicted on others, he cannot be again tried on those
counts on which he was acquitted, though, if the conviction is set
aside, he may be tried a second time on those counts on which he was
at first convicted.** And where a greater offense includes a lesser
one, if the defendant is indicted for the lesser offense and put in
jeopardy under such indictment, this will prevent his being afterwards
indicted and tried for the major crime.** Thus, where defendant
I ••People ▼. Hunckeler, 48 Oal. 331; People v. Cage, 48 Cal. 323, 17 Am.
Rep. 436 ; Mixon v. State, 55 Ala. 129, 28 Am. Rep. 605 ; U. S. ▼. Haskell, 4
Wash. C. G. 402, Fed. Gas. No. 15,321; Gom. v. McGormlck, 130 Mass. 61,
30 Am. Rep. 423 ; Powell ▼. State, 17 Tex. App. 345 ; Barrett ▼. State, 35 Ala.
406; Benedict ▼. State, 44 Ohio St 679, 11 N. E. 125^ State v. Shaffer, 23
Or. 555, 32 Pac. 545; Woodward ▼. State, 42 Tex. Gr. R. 188, 58 S. W. 135;
Dreyer t. People, 188 111. 40, 58 N. E. 620, 58 L. R. A. 869 ; Ex parte Glemi
(G. G.) Ill Fed. 257 ; Allen y. SUte, 52 Fla. 1, 41 South. 593, 120 Am. St Rep.
188 ; Vela v. State, 49 Tex. Gr. R. 688, 95 S. W. 529. Bee ''OHminal Law^
Deo. Dig. (Key No.) || 181-18S, 189; Oent. Dig. |§ SSO-^U, S7i-S7i.
91 McGoy ▼. State, 46 Ark. 141 ; Roberts ▼. State, 14 Ga. 8, 58 Am. Dec.
528 ; Nordllnger ▼. United States, 24 App. D. G. 406, 70 L. R. A. 227 ; O'Don-
nell y. People, 110 111. App. 250; State y. Switzer, 65 S. G. 187, 43 S.
E. 513 ; Wallace y. State, 41 Fla. 547, 26 South. 713 ; Miller y. State, 33 Ind.
App. 609, 71 N. E. 248 ; State y. Day, 5 Pennewlll (Del.) 101, 58 Atl. 946.
A statute proylding that a person who has been before conylcted of crime
shall suffer a severer punishment for a subsequent offense than for a first
offense is not Inyalld, as subjecting him to be twice put In Jeopardy for tke
same offense. Moore y. Missouri, 159 U. S. 673, 16 Sup. Gt. 179, 40 L. Ed.
301. See "Criminal Law,'* Dec. Dig. (Key yo.) 1 196; Cent. Dig. | S84.
••People y. Dowllng, 84 N. T. 478; Johnson y. State, 29 Ark. 31, 21 Am.
Rep. 154. Gompare Jaryls y. State, 19 Ohio St 585. See **Criminal Law,'*
Deo. Dig. (Key No.) | 186; Cent. Dig. | 321.
•• Roberts y. State, 14 G a. 8, 58 Am. Dec. 528; Floyd y. State, 80 Ark. M,
96 S. W. 125 ; People y. McDanlels, 137 Gal. 192, 69 Pac. 1006, 59 L. R. A.
578, 92 Am. St Rep. 81. See ^'Criminal Law," Dec, Dig. (Key No.J i 199;
emit. Dig. II 366, 386, 381, 389, 394.
5§ 267-269) TWICE in jeopabdt. 763
was charged with robbery, committed by taking money from a dwell-
ing house, a former acquittal on an indictment for the larceny of
the same money is a bar to the prosecution for robbery, because the
crime of robbery, as charged, could not have been committed with-
out the commission of larceny, as an included, but inferior, offense.^®^
In the case of a single criminal act producing several different re-
sults, each of which, standing alone and dissociated from the others,
would be an indictable offense, the general rule is that each result
cannot be considered a distinct crime, but that all are the conse-
quences of one criminal act; and hence a conviction or acquittal of
the crime, founded upon one of such results, will bar a prosecution
for the same crime, founded upon another of such results.^^^ If a
verdict against the prisoner is set aside on his motion, or on an ap-
peal or writ of error taken by him, or is arrested for fatal errors in
the indictment, the protection of former jeopardy does not attach.***
Practical Effect.
The practical effect of the provision against second jeopardy is
not only to save a person from being twice tried for the same offense
in distinct proceedings, but also to deny to the prosecution, in crim-
inal cases, the right to take an appeal or to move for a new trial, un-
less, in the particular state, the constitutional rule has been relaxed
100 state ▼. Mlkesell, 70 Iowa, 176, 80 N. W. 474. Bee '^Criminal Lawr
Dec. Diff. (Key No,) | tOt; Cent. Dig. | S96.
101 Hurst T. State, 86 Ala. 604, 6 South. 120, 11 Am. St Rep. 79. But con- |«
trast People ▼. Majors, 65 Cal. 138» 8 Pac. S87, 52 Am. Rep. 285, where it was { '
held that the murder of two persons by the same act eonatltuted two offenseAi
for each of which a separate prosecution would lie, and a conviction or acquit-
tal in one case would not bar a prosecution in the other. And note that the
same act may constitute distinct offenses^ one against the United States and the
other against a state, or one against the state and the other against a city ; and
in this case, prosecution for the one offense is no bar to proceedings for the
other. Black y. State, 144 Ala. 92, 40 South. 611 ; State v. Norman, 16 Utah,
457, 52 Pac 986 ; State y. Muir, 86 Mo. App. 642. But see Com. y. Fuller, 8
Mete. (Mass.) 318, 41 Am. Dec. 509. An acquittal by a military court-martial
is no bar to a prosecution for the same act by the proper dyil authorities.
In re Fair (C. G.) 100 Fed. 149. And it is not putting one twice in Jeopardy
to punish him for an indictable statutory offense, though it also constitutes a
contempt of court and may be punished as such. In re Chapman, 166 U. S.
661, 17 Sup. Ct 677, 41 L. Ed. 1154. Bee "^CHminal Lofc,** Dec Dig. (Key No.)
I too; Cent. Dig. ff 386-409-
1 OS Sanders y. State, 85 Ind. 818» 44 Am. R^. 29; Smith y. State, 41 N.
J. Law, 59& See 'Vriminal Law," Deo. Dig. (Key No.) || 188-193; Cent. Dig.
H 372-^9.
704 CONSTITUTIONAL GUARANTIES IN CRIMINAL CASBS. (Ch. 20
SO far as to allow this. And except in cases where the prisoner him-
self appeals and a new trial is thereupon ordered, there is no redress
for errors or mistakes made in the course of the trial which tell in
favor of the defendant, nor any opportunity to correct them. The
propriety of allowing to the state the same right of appeal, in these
cases, which already exists in favor of the defendant, has been of late
years much discussed. Where a court has imposed a sentence of
fine and imprisonment, in a case where the statute authorized only a
sentence of fine or imprisonment, and the fine has been paid, the court
cannot, even during the same term, modify the judgment by imposing
imprisonment instead of the former punishment; for this would
amount to punishing the defendant twice for the same offense,**'
270* By the eighth amendment to the federal oonstitntion, and by
ff|m4i^<» proTieione in the eonetltvtions of auuiy of the etateSf
it is proWded that exeeeeiTe bail shall not be reqnired.
The constitutions of most of the states provide that all persons
shall, before conviction, be admitted to bail, upon giving sufficient
sureties, except for capital offenses, where proof of their guilt is
evident or the presumption great; and the constitutions of nearly
all provide that excessive bail shall not be required. The object of
bail is to enable persons charged with criminal offenses to regain their
liberty, and at the same time to secure their attendance when they
are wanted for trial. To require bail in such a great amount that it
would be impossible for the prisoner to obtain it, and thereby to keep
him in captivity for perhaps a long time, before his guilt was estab-
lished, would be a gross abuse of justice and a grievous oppresr
sion.^®* It was to prevent this that the constitutional provision above
quoted was adopted. But it will be observed that the provision does
not require that all persons, in all circumstances, shall be admitted
to bail; but only that if they are allowed to go at large upon bail,
the bail required shall not be excessive. There are obviously cases
in which bail must be refused, if justice is to be done. And, as we
have stated, the right to bail is generally withheld in capital cases
los Ex parte Lange, 18 WaU. 163, 21 L. Ed. 872. See "Criminal Law,** Deo,
Dig. (Key No.) | 187; Cent. Dig. ff 5eS-57i, 2591.
104 17. S. V. BrawDer (D. G.) 7 Fed. 8a Bee '^Criminai LaWt** Deo. Dig.
(Key No.) IS SOSSj Cent. Dig. || 209-212.
§ 870) BAIL. 706
where "the proof is evident or the presumption is great'* In regard
to the meaning of these words^ it is said that the proof is evident if
the evidence adduced on the application for bail would sustain a ver-
dict convicting the prisoner of a capital offense ; but, if the evidence
is of less efficacy, bail should be allowed him. In other words, bail is
not a matter of right if the evidence is clear and strong, leading a well-
guarded and dispassionate judgment to the conclusion that the of-
fense has been committed, that the prisoner is the guilty agent, and
that if the law be administered he will be capitally convicted.* •■ The
amount of bail to be required is left to the discretion of the court or
magistrate. But if the amount required is excessive, or if an offer
of reasonable bail is refused, there is such violation of the prisoner's
constitutional rights as may be inquired into on a writ of habeas cor-
pus or certiorari. But the granting or refusing of bail is a matter
generally within the sound discretion of the court or magistrate be-
low; and the appellate court will not control that discretion unless
it has been flagrantly abused.*** And the action of a judge or magis-
trate in accepting or refusing bail is judicial in its nature, and not
merely ministerial, and no action will lie against him for refusing to
take bail in a case of misdemeanor, even though the sureties tendered
are found to have been sufficient, unless actual malice on his part can
be shown.**^
In fixing the amount of bail, though no^ definite rules can be laid
down for all cases, there are certain considerations which should al-
ways influence the action of the court. Thus, it is proper to take
into account the gravity of the offense charged and the severity of
the punishment attached to it, as affecting the likelihood of the pris-
oner's fleeing from justice, notwithstanding his being under bail.
Again, if there is no reasonable doubt of the guilt of the defendant
charged with the commission of a felony, whether capital or not, he
ought not to be admitted to bail.**' And, finally, whether bail is
excessive or not will depend largely upon the pecuniary condition of
108 Ex parte Foster, 5 Tex. App. 625. 32 Am. Rep. 577. Bee ''Criminal
Law,'' Dec, Dig. (Key No.) | 43; CeiU. Dig. ff JSS-iet.
loe Lester y. State, 88 Ga. 192. Bee ''Bail," Dec. Dig. (Key No.) | 4$; Cent.
Dig. I tot.
i«Y Llnford ▼. Fttsroy, 18 Law J. Mag. Ca& 106; Ehrans v. Foster, 1 N. H.
874. Bee "Judges," Deo. Dig. (Key No.) | S6; Ceni. Dig. U lSS-168.
i«« Ex parte Tayloe^ 5 Cow. (N. T.) 39. Bee "BaH," Dec. Dig. (Key No.) |
48; Cen*. Dig. | U8.
.BiMCk>n8T.L.(3D.BD.)— 46
706 CONSTITUTIONAL GUARANTIES IN CBIMINAL CASES. (Ch. 20
the accused. A sum which would be trivial to a wealthy man might
be oppressive to a poor one.^®*
GRUEL AND UMUSUAI* PUNISHMENTS.
271* The eoiuititiitlomml prohibition again tt the inflietion of emel
and nnnenal ynntehmente is to be nndorstood as forbidding Any
emel or degrading pnnlebment not hnonm to the eoatmon law,
and probably also any degrading punishments irhieh^ in the
partienlar state, had beeome obsolete when its eonstitntion
was adopted* and also all punishments -whieh are so dispro-
portioned to the oifense as to shoeh the moral sense of the
eomninnity.i i «
This prohibition, in the eighth amendment to the federal consti-
tution, applies only to the United States and its courts. But most of
the states, if not all, have incorporated a similar inhibition in their
organic law.*^^ It was intended to exclude all such barbarous pun-
ishments as torture, disembowelling, burning, branding, mutilation,
the pillory, and the ducking-stool. But it does not apply to the ordi-
nary methods of punishment, such as death by hanging, pecuniary
fines, imprisonment, disfranchisement, or forfeiture of civil rights.^^*
lot Ex parte Hutcfaings, 11 Tex. App. 28 ; Ex parte Banks, 28 Ala. 88 ; U.
S. y. Lawrence, 4 Cranch, C O. 618, Fed. Cas. No. 16,677. The oflBcer fixing
the amount of bail must necessarily decide in the first instance what will or
wUI not be excessive ball in each particular case, and the question as to the
amount of baU is therefore one for judicial decision. Gregory v. State, 94
Ind. 884, 48 Am. Rep. 162. See **BaiV* Deo. Dig. (Key No.) i 52; Cent. Dig.
I t09,
110 In re Bayard, 25 Hun (N. Y.) 646; McMahon v. State, 70 Neb. 722, 97
N. W. 1036. See ''Criminal Law,'' Dec. Dig. (Key No.) | 121S; Cent. Dig. H
S90i-SS09.
111 Pervear v. Massachusetts, 6 Wall. 476, 18 1*. Ed. 608. See "Criminal
Law:' Deo. Dig. (Key No.) 1 121S; Cent. Dig. | 3304.
lis E^e and imprisonment are not cruel or unusual punishments. Ligan y.
State, 8 Heisk. (Tenn.) 159. Hard labor in the penitentiary, in addition to the
imprisonment, is not a cruel or unusual punishment WUson ▼. State, 28 Ind.
893. A law providing that the keeper of a gambling house "shall be deemed
infamous after conylction, and be forever thereafter disqualified from exer-
cising the right of suffrage and from holding any office," does not inflict a
cruel punishment, within the meaning of the constitution. Harper y. Com.,
98 Ky. 290, 19 S. W. 787, 14 Ky. Law Rep. 163. This constitutional provision
Is not violated by a law requiring the imposition of a heavier punishment on
a second or third conviction. McDonald y. Massachusetts, 180 U. S. 311, 21
§ 271) CBUSL AND UNUSUAL PUNISHMBMTS. 707
But the common and usual forms of punishment, not in themselves
objectionable under this provision, may be inflicted upon a defendant
to such an excessive extent as to become "cruel" punishments. For
example, a sentence of imprisonment for five years, and a recog-
nizance in the sum of $500 to keep the peace for five years after the
expiration of the sentence, upon a conviction for an assault and bat-"
tery, has been held invalid because excessive.^** As to the inflic-
tion of stripes, the case is not very clear. But it has been held in
several cases that whipping is not a cruel or unusual punishment.^*^
A law providing that execution of the sentence of death shall be by
"causing to pass through the body of the convict a current of elec-
tricity of suflicient intensity to cause death," is not obnoxious to this
constitutional prohibition. The punishment, death, remains the same ;
and the only change is in the manner of its infliction, and this man-
ner, though certainly at present "unusual," is not "cruel" within the
meaning of the constitution.**' And in a case where a territorial law
enacted that every person guilty of murder should suffer death, but
did not prescribe the mode of executing the sentence, and the pris-
oner was sentenced to be shot, it was held that this was not a cruel
or unusual punishment.*** And the same decision was made in re-
gard to a statute which required that a prisoner sentenced to death
should be kept in solitary confinement between the time of his sen^
tence and the execution.**^ But where cutting off the prisoner's hair
is a part of the punishment prescribed for particular offenses, and
this sentence is imposed upon a Chinaman, it may be a cruel punish-
ment as to him, on account of the peculiar social and religious beliefs
Sup. Ct 889, 45 L. Ed. 642. See '^Criminal Law,** Deo. Dig, (Key Vo.) | 1219;
Cent. Dig, || SSOJhSSOO.
lis State T. Driver, 78 N. G. 423. But compare People v. Smith. 04 Mich.
644, 54 N. W. 487. See "Criminal Law,*' Dec. Dig. (Key No.) | ItlS; Cent.
Dig, it S304SS09.
114 Com. V. Wyatt, 6 Rand. (Va.) 694; Foote v. State, 59 Md 264. Set
'^Criminal Law;* Dec Dig. (Key No.) { 121S; Cent. Dig. H SS0JhSS09.
lis People ▼. Kemmler, 119 N. T. 580, 24 N. E. 9; In re Kemmler, 136 U. S.
436, 10 Sup. Ct. 930, 34 L. EO. 519 ; In re Storti, 178 Mass. 549. 60 N. B. 210,
52 Tj. R. a. 520. See ^'Criminal Law,** Dec. Dig. (Key No.) 1 121S; Cent. Dig.
H SS04-S909.
!!• Wilkerson v. Utah, 99 U. 8. 130, 25 L. Ed. 345. See ''Criminal Law,**
Dec. Dig. (Key Vo.) ff 1219, 1219; Cent. Dig. If 9S0JhSS09, SS29, SSS2.
117 McElTaine ▼. Brush, 142 U. S. 155, 12 Sup. Ct. 156, 35 L. Ed. 971. But
see Rogers y. Peck, 199 U. S. 425, 26 Sup. Ct. 87, 50 L. Ed. 256. See "Orim-
inal Law,** Deo. Dig. (Key No.) | 1219; Cent. Dig. f| S304-9S09.
708 COKSTITUTIONAL 0UARANTIB8 IN CRIMINAL CASB8. (Ch. 20
of the people of that race.^^' But a sentence, imposed upon a pris-
oner for a violation of a city ordinance, requiring him, on default of
payment of his fine, to be put to labor on the public streets or other
public works of the city, is not in conflict with the ccxistitiition.^^* In
an interesting case in Missouri, the prisoner was convicted of ob-
taining $3 under false pretenses, and was sentenced to imprisonment
for two years, which was the minimum penalty set by the statute
for that offense. But the statute omitted to prescribe any maximum
penalty. And it was argued that, under this law, the prisoner might
have been sentenced to imprisonment for life, and that such a pun-
ishment would have been cruel and unusual. But the court refused
to interfere with the sentence on this ground.^*^
BILLS OF attahtdes.
S7S. By ike provioloBs «f tke f ederml eoastitiitioa, ItUls of Attainder
mx% f orbiddem t« be paiied either by eoncreM or by the eev*
oral statee*
In its strict signification, the word "attainder" means an extinc-
tion of civil and political rights ; and its two incidents, forfeiture and
corruption of the blood, followed as a necessary consequence, at
^eommpa law, upon a conviction of a capital gtjm.e* . A lull of attainder
lis a legislgtiye- decree, directed against al^designated j)erson, pro-
nouncing him guilty of an alleged crime^usually treasoB; and passing
/ sentence of jdeath and attainder upon him.^^^ In some cases, where
"•tfiis method of procedure was in use, the sentence pronounced was
less severe than the death penalty, and in that case the judgment was
denominated a "bill of pains>,;^nd penalties." But the phrase "bill of
attainder" has come to be used in a generic sense, including also a
lis Ho Ah Kow V. Nunan, 5 Sawy. 552, Fed. Cas. No. 6,546. Bee ^^Criminal
Lawr Dec. Dig. (Key No.) | ItlS; Cent. Dig. || SS04SS09; ""Munictpal Cor-
porations," Dec. Dig. (Key No.) | 625; Cent. Dig. | 1S79.
119 Bx parte Bedell, 20 Mo. App. 125. See ^^Criminal Law/* Dec Dig. (Key
No.) i 121S; Cent. Dig. || SS04-SS09; ^'Intoxicating Liquors," Deo. Dig. (Key
No.) I 242; Cent. Dig. f 361.
"• State T. Williams, 77 Mo. 810. Bee 'Vriminal Law," Deo. Dig. (Key
No.) I 121S; Cent. Dig. || SS04S309.
isi Oummlngs v. Missouri, 4 Wall. 277, 18 L. Ed. 856. A resolution of a
state senate resulting in the expulsion of a member Is not a bill of attainder.
French ▼. Senate of California, 146 Oal. 604, 80 Pac. 1031, 69 L. R. A. 556.
Bee '*ConstUutUmal Law," Deo. Dig. (Key No.) if 82, 191; Cent. Dig. | 550.
§ 273) BX POST FACTO LAWS. 709
bill of pains and penalties, and it is in this comprehensive significa-
tion that it is used in the federal constitution."* Legislative enact-
ments of this character were not at all uncommon in the early days
of this country, before the adoption of the constitution. In several
cases, during the Revolution, the states enacted statutes which were
directed against particular persons by name, and which adjudged
them guilty of aiding and adhering to the enemies of the state, and
proceeded to a confiscation of such property of theirs as might be
found within the limits of the state."* But the prohibition received
its most attentive consideration in a group of cases which arose out
of a certain act of congress and certain acts of the state legislatures,
passed at the close of the civil war, which imposed a test oath of
past loyalty to the national government as a condition precedent to
the right to enjoy certain civil and political privileges. These stat-
utes were held to be ex post facto laws and unconstitutional. And
they were also adjudged to be bills of attainder, on the following
ground: Since it was certain that there were individuals who would
be unable to take the oath prescribed, the legislative action in ques-
tion was tantamount to a declaration that those persons were guilty
of the crimes alleged, and to a sentence, passed upon them without
trial, imposing heavy penalties for their past conduct.^*^
SX POST FAOTO ULWS.
t78. Tho emmetaieat ef «s post faoto laws is vrohiUt^A hotk tm
sresB aad to ike loKisl»t«reo of tbe ■oTorml statoo. Tho t
A toeliBlMd oao, and avplies oaly to poaal oad orladiud
eoodlmcs. Am ox poot f ooto law is one— "
(a) .Wklok lalioo aa aotioa doao bof oro tke paoolag of the law, and
wkiek wao iamoooat wIms doao* criwiaal, aad paaiolMO wmmh
aotioa, ov
(b) Whioh mmcukwrnimi ■ ooJiae, or muJim it ggoatoy tliaa it wao wk
(o) Wklok oluuicoo tko paaialiaioat aad iaflio|jLA..p«*tor jnullA*
aioat tluia tko law aaaozod to tko eriato wkoa it wao ooai«
Biittod, or
i» Fletcher y. Peck, 6 Granch, 188, 8 L. BML 182; GQHmilngs v. Mlfloonri, 4
WalL 277, 18 L. Ed. 856. See **C<m9UiuUonal LaMf,** Dee. Dig. (Key No.) |
197; Cent Dig. % 550.
is< See Thompson y. Carr, 5 N. H. oiu.
1S4 ComnilngB y. Miasonrl, 4 Wall. 277, 18 K Ed. 866; Bx imrto Garland,
4 WaU. 888, 18 L. Ed. 866 ; Pierce y. Carakadon, 16 WaU. 284, 21 L. Bd. 276.
Bee **Oim$tiiuti(mal Law,*' Dee. Dig. (Key No.) i 199; Cent. Dig. | 665.
710 CONSTITUTIONAL GUARANTIES IN CRIMINAL CASES. (Ch. 20
(d) Wkiek alters the lecal mles of eTidenee, and reeeives less or dif-
ferent teetimony than tlie law required at the tiaie of the eom->
mission ef the oifense* in order to eonTiet the oHender.is*
An ex post facto law is necessarily, as the words imply, a retro-
active law. If any law is intended to operate only upon future ac-
tions or future trials, it cannot be called ex post facto.^** And again,
the term is restricted to penal and criminal proceedings which affect
life or liberty or may impose punishments or forfeitures. It has no
applicability to purely civil proceedings which affect private rights
only, although such proceedings, for their retroactive effect, may be
unlawful.**^ The constitutional provision, it should be observed, ap-
issOalder v. Bull, 8 Dall. 390, 1 L. Ed. 648; Goode v. State, S»0 Fla. 45, 39
South. 461; City of Loulsyme ▼. Roberts, 105 S. W. 431, 32 Ky. Law Rep.
182 ; State ▼. Michel, 121 La. 374, 46 South. 430 ; State v. Fourchy, 106 La.
743, 31 South. 325; Barton ▼. State (Miss.) 47 South. 521; People ▼. John-
son, 44 Misc. Rep. 550, 90 N. Y. Supp. 134 ; People y. Zito, 237 111. 434, 86 N.
E. 1041. To render a statute unconstitutional as being ex post facto, it is not
necessary to show that it must be detrimental to all persons charged with of-
fenses ; it is enough if It materially alters their condition in a manner which
may be detrimental to some. In re Murphy (C. C) 87 Fed. 549. But any law
which distinctly mollifies the rigor of the law cannot be regarded as ex post
facto. State v. Richardson, 47 S. G. 166, 25 S. E. 220, 35 L. R. A. 238. See
'Vonsiitutional Later Dec. Dig. (Key No.) |§ 191-203; Cent. Dig. || 550-590.
"• Kring V. Missouri, 107 U. S. 221, 2 Sup. Ct. 443, 27 L. Ed. 506. A gen-
eral law for the punishment of offenses which endeavors, by retroactive opera-
tion, to reach acts l)efore committed, and also provides a like punishment for
the same acts in future, is void in so far as It is retroactive, but valid as to
future cases within the legislative control. Jaehne v. New York, 128 U. S.
189, 9 Sup. Ct. 70, 32 L. Ed. 398. Bee '^Constitutional Law,*' Deo. Dig, (Key
No.) 9 197; Cent. Dig. | 550.
127 Baltimore & S. R. Ck). v. Nesblt, 10 How. 395, 13 L. Ed. 469; Locke v.
New Orleans, 4 Wall. 172, 18 L. Ed. 334; South wick v. Southwick, 49 N. Y.
510: Rich V. Flanders, 39 N. H. 304; De Pas v. Bldwell (C. O.) 124 Fed. 615;
Randel v. Shoemaker, 1 Har. (Del.) 565; Pittsburgh, O., G. ft St L. Ry. Ck>.
V. Lightheiser, 168 Ind. 438, 78 N. E 1033 ; Leahart v. Deedmeyer, 158 Ala.
295, 48 South. 371. Laws providing for the commitment and detention of the
insane are not penal in any sense of the word, and hence cannot come under
the description of ex post facto laws. State v. Snell, 49 Wash. 177, 94 Pac.
926. And a statute providing for the revocation in a "civil action" and under
rules applicable to civil proceedings, of a physician's license for fraud in its
procurement occurring prior to the enactment of the law, is not an ex post
facto law. State v. Schaeffer, 129 Wis. 459, 109 N. W. 522. But a city ordi-
nance providing for the assessment and taxation of omitted property, in so
far as it provides a penalty, Is void as an ex post facto law. Muir's Adm*r v.
Oity of Bardstown, 120 Ky. 739, 87 S. W. 1096. And a person cannot be con-
§ 273) EX POST FACTO LAWS. 711
plies not only to the statutes of a state, but also to the ordinances of
its municipal corporations."*
As a general rule, statutes which are confined in their operation
to the regulation of courts, their jurisdiction, and criminal procedure,
or which merely change the mode of trial of offenses, without affect-
ing the nature of the offense, the evidence required, or the punish-
ment, are not ex post facto, even as retroactively applied, unless they
plainly alter the situation of the accused to his disadvantage."* For
instance, a statute giving to justices of the peace jurisdiction to try
persons for offenses previously triable only in the county courts,
though applicable to prior offenses, being remedial only, is not an
ex post facto law.*'* The same is true of a law which confers ap-
pellate jurisdiction of a cause upon a division of the supreme court
less in numbers and different in personnel from the court as organ-
ized when the crime was committed.*** And a law which changes
the qualifications of grand and petit jurors, requiring that they shall
be qualified electors and able to read and write, is applicable to the
trial of a prosecution for an offense committed before its passage,**^
though it is otherwise as to a statute which dispenses with a jury
altogether, or which provides that it may be composed of, or its ver-
dict rendered by, a less number than twelve men.***
yicted under a law making a principal liable for the act of his as^^it, for an
act done before the law went into operation. State ▼. Bond, 49 N. G. 9. Bee
**C(m9titutUmal Law;' Dec Dig. (Key No.) | 109; Cent, Dig, || SSISSO, S76-
58S,
ia« People v. PIre Department of City of Detroit, 31 Mich. 45a See **Con'
8titutional Laic," Dec Dig. (Key No.) f| 198-20S; Cent, Dig. ff 516-590;
**Beneflcial Associations ," Cent, Dig. | ti,
itt City CouncU of Anderson ▼. O'Donnell, 29 S. G. 355, 7 S. E. 623, 1 L.
R. A. 632, 13 Am. St Rep. 728 ; State y. Carter, 33 La. Ann. 1214 ; People r.
Mortimer, 46 Cal. 114; Ex parte Boyd, 50 Tex. Gr. R. 309, 96 S. W. 1079;
Mallett ▼. North Carolina, 181 U. S. 589, 21 Sup. Ot 730, 45 L. Ed. 1015;
State ▼. PeU, 140 Iowa, 655, 119 N. W. 154. See "Constitutional Law," Dec
Dig. (Key No.) f| 198-20S; Cent. Dig. |i 570-^590,
!«• State ▼. Welch, 66 Vt 60, 25 AtL 900. And see Com. ▼. Phillips, 11 Pick.
(Mass.) 28; State ▼. SuUivan, 14 Rich. Law (S. C.) 281. And see Thompson
V. Missouri, 171 U. S. 380, 18 Sup. Ot 922, 43 L. Ed. 204. See ^^Constitutional
Law," Dec Dig. (Key No.) 1 199; Cent. Dig. | 578.
isi Duncan ▼. Missouri, 152 U. S. 377, 14 Sup. Ct 570, 38 L. Ed. 485. See
^^Constitutional Law," Dec. Dig. (Key No.) | 199; Cent. Dig. f 578.
i«s Gibson y. Mississippi, 162 U. S. 505, 16 Sup. Ct 904, 40 L. Bd. 1076.
See ^^Constitutional Law," Dec Dig. (Key No.) | 199; Cent, Dig. | 582.
isB Thompson v. Utah, 170 U. S. 343, IS Sup. Ct 620, 42 L. Bd. 1061 ; State
T. Baker, 60 La. Ann. 1247, 24 South. 240, 69 Am. St Rep. 472; State t. At-
712 CONSTITUTIONAL GUARANTIES IN CBIMINAL CASES. (Ch. 20
Nor is there any valid objection, on this ground, to a provision in
a state constitution that offenses previously required to be prose-
cuted by indictment may be prosecuted by information or by indict-
ment, as shall be prescribed by law, or one which enacts that no
grand jury shall be drawn or sununoned in any county unless the
superior judge thereof shall so order. These provisions, as applied
to offenses committed prior to their adoption, cannot be said to be
ex post facto.^'* And a law authorizing the conviction of a de-
fendant "of any offense the commission of which is necessarily in-
cluded in that charged" is not ex post facto, as applied to a case where
the offense was committed and the indictment found before the law
went into effect, although such conviction was not authorized by the
law in force at the time the crime was done.*** A statute reducing
the number of peremptory challenges to jurors allowed to defendants
in criminal prosecutions is not ex post facto as to the trial of a crime
committed before the act was passed.*** And a statute which pro-
vides that, "in all questions affecting the credibility of a witness, his
general moral character may be given in evidence," although it in-
troduces a new rule of evidence, cannot be said to alter the situation
of the accused to his disadvantage, and therefore is not an ex post
facto law.**^ But a law requiring the defendant in prosecutions un-
der the revenue laws to produce his books and papers in evidence, and
making his refusal to do so equivalent to a confession of the facts
the government expects to prove by them, is ex post facto as applied
to past acts and transacti(His.***
doln, 51 La. Ann. 169, 24 South. 802, 72 Am. St Rep. 454. But compare State
V. GaldweU, 60 La. Ann. 666, 23 South. 869, 41 L. R. A. 718, 69 Am. St Rep.
465. Bee ^^Constitutional Law,** Dec Dig, (Key No,) il99; Cent. Dig. | $82.
1S4 State ▼. Kyle, 166 Mo. 287, 65 S. W. 763, 56 L. R. A. 115; State ▼.
Parks, 165 Mo. 496, 65 S. W. 1132; I^rbarger y. State, 2 Wash. St 552, 27
Pac. 449, 1029. Bee ^'Constitutional Law,*' Deo. Dig. (Key No.) | 199; Cent.
Dig. I 579.
186 State ▼. Johnson, 81 Mo. 60; Com. ▼. Kelley, 184 Mass. 320, 68 N. B.
346. But see People v. Oox, 67 App. Div. 344, 73 N. Y. Supp. 774. Bee 'Von-
stitutional Law,'* Dec. Dig. (Key "No.) % 200; Cent. Dig. f 574.
is« South ▼. State, 86 Ala. 617, 6 South. 52; State ▼. Duestrow, 137 Mo.
44, 38 S. W. 554. Bee ^'Constitutional Law,'* Dec Dig. (Key No.) 1 199; Cent.
Dig. S 582.
1ST Robinson y. State, 84 Ind. 452. But see State y. Dowden, 137 Iowa, 573,
115 N. W. 21L Bee ''Constitutional Law,** Dec. Dig. (Key No.) | 199; Cent.
Dig. § 681.
1S8 u. S. y. Hughes, 8 Ben. 29, Fed. Cas. No. 15,410» Bee "Constitutional
Law,** Dec. Dig. (Key No.) S 199; Cent. Dig. S 581.
g S)78) SX POST VAGTO LAWS. 713
If the legislature repeals the statute of limitations with respect to
criminal prosecutions, or extends the time previously limited for
such prosecutions, the new rule cannot constitutionally apply to any
offense previously committed and as to which the period prescribed
by the law in force at the time of its commission has already run.
This would be, in such application, an ex post facto law; because
an act condoned by the expiration of the statute of limitations is no
longer a punishable offense.* ■•
A law which aggravates the punishment for an act already com-
mitted is ex post facto; but one which changes the punishment in
such a manner that the new penalty is equal to or less than that pre-
scribed when the act was done, but not greater, is not thus objec-
ticmable. Any change in the law which remits a separable portion of
the former penalty,, or substitutes a punishment which is clearly less
severe, or otherwise reduces or mitigates the consequences of a con-
viction, or which introduces a chan^^e in those matters which are
referable only to prison discipline or penal administration, may validly
have a retrospective operation.*** A statute which, without affect-
ing the crime or its punishment, prescribes the hour, the place, and
the manner in which death sentences shall be carried out, and the
number of persons who may be present, is not ex post facto as to
past offenses.*** Since the penalty of death is almost universally
regarded as the extreme limit of punishment, it is generally con-
ceded that a law which substitutes any other degree or kind of pun-
ishment, even in relation to past offenses, is not ex post facto.*** But
even the death penalty can be added to. Thus, a statute was en-
acted providing that a person sentenced to death should be kept in
solitary confinement until the time of execution, and also that he
is» Oom. T. Duffy, 96 Pa. 506, 42 Am. Rep. 554. Ck>mi)are State v. Moore,
42 N. J. Law, 206. See **OofMtitutUmdl Law,** Dec. Dig. (Key NoJ i 199;
Vent. Dig. f 676.
1*0 Hartnng r. People, 22 N. Y. ©6, 105; Hair v. State, 16 Neb. 601, 21 N.
W. 464 ; People t. Hayes, 140 N. Y. 484, 85 N. E. 951. 23 L. R. A. 880, 87 Am.
St Rep. 572. See **C<m9tiiutional Lato,** Deo. Dig. (Key "No.) | tdS; Cent.
Dig. I 585.
141 Holden v. Mimiesk>ta, 187 U. 8. 488, 11 Sap. Ot 143, 34 L. Ed. 734; Peo-
ple ▼. Nolan, 115 N. Y. 660, 21 N. E. 1060. See '^ConsUtuiionel Law** Deo.
Dig. (Key Ifo.) | tOS; Cent. Dig. | 588.
i43Ck>m. y. Gardner, 11 Gray (Mass.) 438; Com. r. Wyman« 12 Cash.
(Mass.) 237; State v. WUliams, 2 Rich. Law (S. G.) 418» 45 Am. Dec. 741;
McGuire v. State, 76 Miss. 504, 25 South. 496. See ^'Comtitutional Law,**
Deo. Dig. (Key No.) i 20S; Cent. Dig. f 685.
714 CONSTITUTIONAL GUARANTIBS IN CRIMINAL CA8B8. (Ch. 20
should not be apprised of the time when the execution was to take
place. This law was adjudged ex post facto and unconstitutional as
applied to a murderer whose crime was committed before the pas-
sage of the act.^^' But a statute is not unconstitutional which, in
providing for the punishment of future offenses, authorizes the of-
fender's conduct in the past to be taken into account, and the pun-
ishment to be graduated accordingly; that is, imposing a more se-
vere sentence upon a second conviction for the same kind of offense.***
But where the law, in force at the time of the commission of the
offense, imposed upon the jury the duty of fixing the penalty, within
certain limits, by their verdict, this confers upon the prisoner a val-
uable right which cannot constitutionally be taken away by retro-
active legislation.**' And a law providing that cumulative terms of
imprisonment, adjudged at the same term of court, shall be so tacked
that each subsequent term shall begin at the expiration of the pre-
ceding one, cannot be applied to offenses committed before the stat-
ute, because, being more onerous than the pre-existing law, such ap-
plication would make it ex post facto.***
14* Ex parte Medley, 134 U. S. 160, 10 Sup. 384, 33 L. Ed. 835. A law add-
ing to the penalty of death imprisonment at hard labor until the governor
shall fix the day for the execution (which may be a year from the sentence)
is ex post facto as applied to past offenses. In re Petty, 22 Kan. 477. See
Rooney y. North Dakota, 196 U. S. 319, 25 Sup. Ot 264, 49 L. Ed. 494; In
re Storti, 180 Mass. 57, 61 N. E. 759. See 'Constitutional Law,** Deo. Dig.
(Key No.) | tOS; Cent, Dig. | 588.
i«4in re Ross, 2 Pick. (Mass.) 165; People y. Butler, 3 Ck>w. (N. T.) 347;
Com. y. Graves, 155 Mass. 163, 29 N. E. 579, 16 L. R. A. 256 ; State y. Woods,
68 Me. 409; McDonald y. Massachusetts, 180 U. S. 311, 21 Sup. Ct 389, 45
L. Ed. 542 ; State y. Dowden, 137 Iowa, 573, 115 N. W. 211 ; State of Iowa
y. Jones (D. C.) 128 Fed. 626. A law providing for the punishment of "habitual
criminals" is not ex post facto. State y. Le Pitre, 54 Wash. 166, 103 Pac. 27.
See "Constitutional Law," Deo. Dig. (Key No.) | 203; Cent. Dig. || 58k-590.
146 Marion y. State, 16 Neb. 349, 20 N. W. 289. But where the statute, at
the time the crime was committed, provided that Juries should be judges of
the law, and this is repealed before the trial, there is no constitutional wrong
in applying the new rule to the case at bar. Marion y. State, 20 Neb. 233,
29 N. W. 911, 57 Am. Rep. 825. See ''Constitutional Laio^^ Deo. Dig. (Key
No,) I 199; Cent. Dig. | 582.
i4« Hannahan v. State, 7 Tex. Aih;>. 664. On the validity of the *'indeter-
minate sentence*' laws, as viewed in the light of this constitutional provision,
see In re Murphy (G. O.) 87 Fed. 549 ; Davis v. State, 152 Ind. 34, 51 N. B.
928, 71 Am. St Rep. 322; State v. Tyree, 70 Kan. 203, 78 Pac. 525; Murphy
V. (}om., 172 Mass. 264, 52 N. E. 505, 43 L. R. A. 154, 70 Am. St Rep. 206;
§ 274) SUSPENSION OF HABEAS CX>SPU8. 716
A statute establishing a test oath of past loyalty to the govern-
ment, and making the taking of it a condition precedent to the right
to hold public office, serve as a juror, practice as an attorney, or act
as a professor, teacher, or clergyman, is unconstitutional and void,
as partaking of the nature both of bills of attainder and ex post
facto laws. The reason is that such acts impose a punishment with-
out trial; they make that a crime which was not so before; and
they change the rules of evidence by shifting the burden of proof
upon the person accused.**^ If an extradition treaty is given a retro-
active effect, so as to allow of the extradition of a criminal who had
taken refuge in this country before the treaty, he cannot object to it
on the ground of its being ex post facto.^*'
SUSPEHSIOir OF HABEAS OOBPUS.
S74» By the eonstitntioa of the Uaited States, mm well mm by the eoA*
•tttntioBs of nearly all the states. At is provided that the priT-
ilece of the writ of habeas eorpas shall not be snspended, nn-
less when, in eases of rebellion or inTasion, the pvblie safety
may require it.
The writ here referred to is the writ of "habeas corpus ad subjici-
endum," which is directed to any person detaining another, and com-
manding him to produce the body of the prisoner (or person detained)
with the day and cause of his caption and detention, to do, submit
to, and receive whatsoever the judge or court awarding the writ shall
consider in that behalf.*** This writ, says Story, "is justly esteemed
the great bulwark of personal liberty, since it is the appropriate rem-
edy to ascertain whether any person is rightfully in confinement or
not, and the cause of his confinement, and if no sufficient ground of
detention appears, the party is entitled to his immediate discharge." *'•
**In England, the benefit of it was often eluded prior to the reign of
People V. Dane, 81 Mich. 36, 45 N. W. 655; In re Lambrecht, 137 Mich. 450,
100 N. W. 006; People v. Johnson, 44 Misc. Rep. 550, 90 N. T. Supp. 134;
n. c, 114 App. Div. 876, 100 N. Y. Supp. 256. See ^'Constitutional Law," Dee.
Dig. (Key No.) f tOS; Cent. Dig. §§ 58.^-590.
i«7 Cummings ▼. Missouri, 4 Wall. 277, 18 L. Ed. 356 ; Ex parte Garland,
4 Wall. 833, 18 L. Ed. 366 ; Pierce v. Carskadon, 16 WalL 234, 21 L. Ed. 276.
Bee ''Constitutional Law," Dec. Dig. (Key No.) | 199; Cent. Dig. t S6S.
i««In re De Glaoomo, 12 Blatcbf. 391, Fed. Cas. No. 8,747. See "Consti-
tutional Law," Dec. Dig. (Key No.) | 199; Cent. Dig. | 568.
!«• 8 Bl. Comm. 131. !•• 2 Story, Oonst I 1331).
i
716 GOKSTITUTIOKAL GUABANTISS IN CRIMINAL CASES. (Ch. 20
Charles the Second, and especially during the reign of Charles the
First. These pitiful evasions gave rise to the famous Habeas Corpus
Act of 31 Car. II. c. 2, which has been frequently considered as
another Magna Charta in that kingdom, and has reduced the general
method of proceedings on these writs to the true standard of law
and liberty. That statute has been, in substance, incorporated into
the jurisprudence of every state in the Union, and the right to it has
been secured in most, if not all, of the state constitutions by a pro-
vision similar to that existing in the constitution of the United
States." "^
' The privilege of the writ is not usually suspended except when mar-
tial law has been declared in a particular place or district. The ef-
fect of its suspension is to make it possible for military commanders
or other officers to cause the arrest and detention of obnoxious or
suspected persons, without any regular process of law, and to deprive
those persons of the right to an immediate hearing and to be dis-
charged if the cause of their arrest is found to be unwarranted by
law.
It seems to be now settled (though not without disputes which are
of considerable historical interest) that the power to suspend the writ,
under the federal constitution, in the case of rebellion or invasion,
is confided to congress alone; that it is the right and duty of that
body to judge when the exigency jias arisen to justify this step ; and
that it does not belong to the executive branch of the government
either to so judge or to take the responsibility of suspending the writ,
unless under an authorization from congress.
DISFUNlTiOlf OF TBEASOK.
275. OoaTiettmui aad puaioliaienta for oonstruotlTe treason m*% yro*
Tontod by tko dofliiitioa of tromsoa twaatA ia tko fodoral eon^*
stitntioii.
I 276. Aeeordiac to tliat definitioa, trooaoa agalmt tko United States
i^\ eonsiite only in loTyinc war against them, or in adlierinc to
\ Y their enemies, giTinc theni aid and eomf ort.
iBi 2 Story, Const I 1341. While It is competent for the lei^islatnre of a
state to regulate and reasonably restrict the privilege of the writ of habeas
corpus, it cannot whoUy deprive the supreme court, in the exercise of its
original Jurisdiction, of its constitutional right to issue the writ Garruth y.
Taylor, 8 N. D. 166, 77 N. W, 617. Bee "Haheiu Corpu*,** Dec Dig. (Key NoJ
tt ^, 44; Cent. Dig. SI 2, 55,
S§ 376-277) DBFINITIOM OF TREASON. 717
277. ThMOf mmy also be trMMCim asaiast a partlevlar stata, daflmed and
pnnialied as a arlate by ita lawsi and tba taiaa aots do not
aaoossaiily ooastltnto treason asaiast tbe Uiiitod Statos also.
That clause of the federal constitution which defines the crime of
treason, and prescribes the proof required to sustain a conviction,
was intended as an additional safeguard against tyranny and injus-
tice. It is in the following words: "Treason against the United
States shall consist only in levying war against them, or in adhering
to their enemies, giving them aid and comfort No person shall be
convicted of treason unless on the testimony of two witnesses to the
same overt act, or on confession in open court/' Similar provisions
have been adopted in the constitutions of many of the states.
"By the ancient common law, it was left very much to discretion
to determine what acts were and were not treason; and the judges
of those times, holding office at the pleasure of the crown, became
but too often instruments in its hands of foul injustice. At the in-
stance of tyrannical princes, they had abundant opportunities to create
constructive treasons; that is, by forced and arbitrary constructions,'
to raise offenses into the guilt and punishment of treason which were
not suspected to be such. The grievance of these constructive trea-
sons was so enormous, and so often weighed down the innocent and
the patriotic, that it was found necessary, as early as the reign of
Edward III., for parliament to interfere and arrest it, by declaring
and defining all the different branches of treason. This statute has
ever since remained the pole-star of English jurisprudence on this
subject. * * * It was under the influence of these admonitions,
furnished by history and human experience, that the convention
deemed it necessary to interpose an impassable barrier against ar-
bitrary constructions, either by the courts or by congress, upon the
crime of treason."***
To constitute this specific crime, "war must be actually levied
against the United States. However flagitious may be the crime of
conspiring to subvert by force the government of our country, such
conspiracy is not treason. To conspire to levy war and actually to
fcvy war are distinct offenses. The first must be brought into open
action by an assemblage of men for a purpose treasonable in itself,
or the fact of levying war cannot have been committed. The actual
enlistment of men to serve against the government does not amount
tvs 2 Story, Const i 1790.
718 CONSTITUTIONAL GUARANTIBS IN CRIMINAL CASES. (Ch. 20
to levying war. It is not the intention of the court to say that no
individual can be guilty of this crime who has not appeared in arms
against his country. On the contrary, if war be actually levied, that
is, if a body of men be actually assembled for the purpose of effecting
by force a treasonable purpose, all who perform any part, however
minute, or however remote from the scene of action, and who are
actually leagued in the general conspiracy, are to be considered as
traitors." "»
There may also be treason against a particular state, defined and
punished as a crime by its laws. And treason against a state is not
necessarily at the same time treason against the United States. Trea-
son may be committed against a state by opposing its laws and forci-
bly attempting to overturn or usurp the government. And conversely,
treason against the United States is not an offense against the laws of
a particular state. It is a crime which is exclusively directed against
the national government and exclusively cognizable in its courts.*'*
OORRUPTIOH OF BI.OOD AHB FORFEITURE.
278. The eonatAtntiem of the United States prerldes that ^e attain-
der of treaeoa iMall work eorraytioa of blood, or forfeiture
esoept dariBC the life of the person attainted.** And the eon«
stitntiona of nearly all the states provide s^nerallj that no
eonTietion shall work eormption of blood or forfeiture of es-
tates, though in a few, it seeau, there may still be a forfei-
ture dvrinc the life of the person oonTieted.
Soon after the adoption of the federal constitution, congress passed
an act declaring that no conviction or judgment, for any capital or
other offense, should work corruption of blood or any forfeiture of
estate."" But in 1861, at the beginning of the civil war, new stat-
utes for the punishment of treason were enacted, and these provided
for the confiscation of the property of persons in rebellion against
the government. But a question having been made, as to whether
16S Ex parte BoUman, 4 Cranch, 76, 126, 2 L. Ed. 554. See, also, U. S. t.
Hoxie, 1 Paine, 265, Fed. Cas. No. 15,407 ; U. S. v. Hanway, 2 Wall. Jr. 139,
Fed. Oas. No. 15,299; U. S. y. Insurgents, 2 Dall. S35, Fed. Gas. No. 15,443;
U. S. v. Mitchell, 2 Dall. 348, Fed. Cas. No. 15,788. See **Trca9on,'' Dec. Dig,
(Key No.) H 1-7; Cent. Dig. H 1-7.
ii« People T. Lynch, 11 Johns. (N. Y.) 549; Respublica t. Carlisle, 1 DalL
35, 1 L. Bd. 26. See ^'Treason,** Dec. Dig. (Key yo.) % J^; Cent. Dig. % J^.
i»» Rev. St U. S. § 532C (Act April 30. 1790 [U. S. Comp. St 1901, p. 3622]).
§278) GORRumoN of blood and forfeiture. 719
the fee in the realty of such persons might not be confiscated, it was
expressly provided in the confiscation acts that no punishment or pro-
ceedings should be construed to work a forfeiture of the real estate
of the offender, longer than for the term of his natural life.*"*
In English law, corruption of blood was the consequence of at-
tainder. It meant that the attainted person could neither inherit lands
or other hereditaments from his ancestor, nor retain those he already
had, nor transmit them to any heir by descent, because his blood
was considered in law to be corrupted. This was abolished by St.
33 & 34 Vict. c. 23, and is unknown in America.
In England, if a person is outlawed for treason, his lands are for-
feited to the crown. If he is outlawed for felony, he forfeits to the
crown all his goods and chattels, real and personal, and also the profits
of his freeholds during his life, and after his death, the crown is
entitled to his freeholds for a year and a day, with the right of com-
mitting waste. Formerly, a conviction for any kind of felony caused
a forfeiture of goods and chattels, both real and personal, but this
has been abolished by the St. 33 & 34 Vict. c. 23. This statute pro-
vides that no conviction, judgment, or sentence for treason or felony
shall work corruption of blood or forfeiture. But it leaves the old
law of outlawry for treason and felony, with its consequences, un-
touched.* "^
ix See 2 Story. Const | 1800, note; Blgelow y. Forrest, 9 Wall. 839, 19 L.
Ed. 096; Day ▼. Micou, 18 WaU. 166, 21 L. Ed. 860; WaUach t. Van RJswlck,
92 U. S. 202, 23 L. Ed. 473; New York Fire Department y. Kip, 10 Wend.
(N. Y.) 266. Bee "War," Dec Dig. (Key No.) I 29; Cent. Dig. || 186-206.
1ST See 4 Steph. Oomm. (lOtb Ed.) 477; WUllams» Real Prop. 126.
720 LAWS IMPAIRING TEUD OBLIGATION OF CONTRACTS. (Cb. 21
OHAFTEB TXT.
LAWS IMPAIRING THB OBLIGATION OF OONTBACTS.
279. Constitutioiial Proyislons.
280. The 'Law Impairing the Contract
281. The Obligation.
282. The Impairment of the Contract
268-285. What Contracts are Protected.
288. Limitations on Power of Legislature to Contract
287-291. Charters as Contracts.
292-296. Exemption from Taxation.
294. Laws Affecting R^uedies on Ccmtracts^
COHBTITUnOHAI. PBOVI8IOHS.
87#. The federal eonstitntioB pvorldes thMt bo state sliall pass any
law *^r^***^g tlie obltsaticim of eoatraets. Aad the eoasti-
tntioBS of wkmatj of tlio states Impose the same restraint mpom
their leglslatvres.
The causes for the introduction of this clause into the constitution
of the United States are to be found in the financial condition of the
country at the dose of the revolutionary war, and the disposition of
the states, at that time, with reference to the enforcement of public
and private obligations. It was much to be apprehended that they,
would repudiate their debts, unless restrained by some such provi-
sion of the paramount law. There was also a strong desire to issue
paper money and make it circulate, even when that involved the dis-
charge of previous contracts in an almost worthless currency. Fur-
ther, the various states were much inclined to make such liberal pro-
vision for the relief and encouragement of the debtor class as would
result in great injury and detriment to the class of creditors, and to
the serious impairment of public and private credit. The means adopted
to check these tendencies was the prohibition upon state action which
we are about to consider. That it has been beneficent in its effects
cannot be doubted. But it has given rise to an amount of litigation,
and has involved the courts in a succession of adjudications, which
are not equalled by those growing out of any other clause of the con-
stitution, unless it may be that which gives to congress the power to
regulate commerce. This prohibition, it will be noticed, is directed
I S80) THB LAW IMPAIRING THB CONTBAGT. 721
only against the states, and there is no other clause in the consti-
tution laying a like inhibition upon congress. It follows, therefore,
that if congress should pass a law, falling within the scope of its
jurisdiction, and not obnoxious to any other prohibition of the con-
stitution, the courts would be obliged to sustain it, notwithstanding
its effect might be to impair the obligation of existing public or pri-
vate contracts. The injustice of such an act would not be sufficient
ground for adjudging it unconstitutional. And in fact, such con-
sequences have attended several of the acts of congress, such as
the legal tender law and the various statutes of bankruptcy, but their
constitutionality has not been questioned on that ground.^ But it
has been held that the legislature of a territory has no more power to
pass a law impairing the obligation of contracts than is possessed by
the legislature of a state.'
THE IsAW nfPAIBINO THE OONTBAGT.
280. The proUliitiom asAlttst latpalrlnc the oUlgatioB of oontraots ap-
plies not only to the ordinary etatntee of the state, and the or-
dinances of its mnnieipalities, bnt also to any clanse in its con-
stitution* or any amendment thereto, which prodnees the for-
bidden effeot.
A provision in a state constitution, or an amendment thereto, is a
"law" within the meaning of this clause. The federal constitution is
the supreme law of the land, and its prohibitions upon state action ap-
ply just as much to the people of the state, when making or amend-
ing their constitution, as to their representatives sitting in the legisla-
ture to make ordinary laws. Hence if a constitutional provision or
amendment impairs the obligation of contracts, it is void.* But the
1 Hepburn v. Griswold, 8 Wall. 637, 19 L. Ed. 513 ; Gunn T. Barry, 15 Wall.
610, 21 L. Ed. 212; Mitchell v. Clark, 110 U. S. 633, 4 Sup. Ot 170, 312. 28 L.
Ed. 279; Evans y. Elaton, Pet C. G. 322, 337, Fed. Cas. No. 4,569; Hopkins
v. Jones, 22 Ind. 310; McFaddin t. Evans-Snider-Buel Co., 185 U. S. 506, 22
Sup. Ct. 758, 46 L. Ed. 1012 ; De Ferrantl v. Lyndmark, 30 App. D. a 417 ;
Ansl^ ▼. Ainsworth, 4 Ind. T. 306, 69 S. W. 884. See "Bankruptcy," Cent.
Dig. U 1, 656; ""Constitutional Law^' Dec Dig. (Key No.) I IIS; Cent Dig. |
272.
s Morton t. Sharkey, McCahon (Kan.) 535 ; Ruggles ▼. Washington County,
3 Mo. 49a Bee **Con8titutional Law,** Dec. Dig. (Key No.) I US; Cent. Dig.
irri.
• New Orleans Gaslight Co. t. Louisiana Light & Heat Producing & Mfg.
Co., 115 U. S. 650, 6 Sup. Ot 252, 29 U Ed. 516; Delmas T. Mercfaanttf* MuU
Bi«.Con8T.L.(9d.Ed.)— 46
722 LAWS IMPAIRING THE OBLIGATION OF CONTRACTS. (Ch. 21
prohibition is directed against the legislative action of the state (whether
by the legislature or by a constitutional convention) and not against the
determinations of its judicial department. The obligation of the con-
tract must have been impaired by some law, that is, some constitutional
provision or statute ; but a decision of a court is not a "law/' and a
change of judicial decisions is not obnoxious to this constitutional
prohibition, though it may invalidate contracts previously sustained/
But a municipal ordinance or resolution of a city council is a law of
the state, within the meaning of this clause.' And the prohibition
against "passing" any law impairing the obligation of contracts equally
forbids a state to enforce as a law any enactment of that character,
from whatever source originating. Hence an enactment of the "Con-
federate States," enforced as a law of one of the states composing that
confederation, sequestrating a debt owing by one of its citizens to a
citizen of a loyal state as an alien enemy, was void for this reason.*
THE OBUOATIOll.
S81* The ebllcatiom of a eoBtraot U that duty of porf ormlitff the eon*
traet, aeeordlns to ita terms and inteatt wMeh the law ree*
osnisee and emf oreee.
Ins. Go., 14 WaH. 661, 20 L. Ed. 757 : Dodge y. Woolsey, 18 How. 381, 15 L.
Ed. 401; Gunn v. Barry, 15 Wall. 610, 21 L. E3d. 212; City of Los Angeles
▼. Los ABgeles City Water Oo.» 177 U. S. 558, 20 Sup. Ct 786, 44 L. Bd. 886 :
Jacoway v. Denton, 25 Ark. 625. See "Constitutional Law,*' Dec. Dig, (Kep
No.) 1 115; Cent. Dig. § 275.
« National Mut. Bldg. & Life Ass'n v. Brahan, 198 U. S. 685, 24 Sap. Ct
532, 48 L. Ed. 828; New Orleans Waterworks Oo. t. Lonlsiana Sugar Refin-
ing Co., 125 U. S. 18, 7 Sup. Ct 741, 31 L. Ed. 607; MlssissliHPi & M.
R. Co. V. McClure, 10 WaU. 511, 19 L. Ed. 997; S^^anson y. Ottumwa,
131 Iowa, 540, 106 N. W. 9, 5 L. R. A. (N. S.) 860 ; King y. Phoenix In& Co.,
195 Mo. 290, 92 S. W. 892, 113 Am. St Rep. 678 ; Shepherd's Point Land Co.
V. Atlantic Hotel, 134 N. C. 897, 46 S. B. 748 ; Storrle y. Cortes, 90 Tex. 283,
88 S. W. 154, 3o L. R. A. 666. But compare Union Bank y. Board of Com'rs
(C. C.) 90 Ferl. 7 ; Mason y. A. E. Nelson Cotton Co., 148 N. a 492, 02 S. E.
625. 18 L. R. A. (N. S.) 1221, 128 Am. St Rep. 635; Thomas y. State, 76 Ohio
St 341, 81 N. E. 437, 10 L. R. A. (N. S.) 1112, 118 Am. St Rep. 884. Bee "Con-
ttitutional Law;* Dec. Dig. (Key No.) % 116; Cent. Dig. fi 278.
B Des Moines City R. Co. y. Des Moines (C. C.) 151 Fed. 854 ; Iron Moun-
tain R. Co. y . Memphis, 96 Fed. 113, 87 C. C. A. 410 ; NeUl y. Gates, 152 Mo.
585, 54 S. W. 400. See "Constitutional Law,*' Dec. Dig. (Key No.) 1 115; Cent.
Dig. § 275.
fl Williams y. BruflCy, 96 U. S. 176» 24 L. Ed. 716. See ^^Constitutional Law,**
Cent. Dig. fi 274.
§ 282) THE IKPAIRMENT OF THE CONTRAOT. 723
For judicial purposes, and in the constitutional sense, the "obligation"
of a contract is that duty of performing it which the law recognizes
and enforces.' "The obligation of a contract, in the constitutional
sense, is the means provided by law by which it can be enforced, and
by which the parties can be obliged to perform it. Whatever legislation
lessens the efficacy of these means impairs the obligation. If it tends
to postpone or retard the enforcement of the contract, the obligation of
the latter is to that extent weakened." •
THE IMPAIRMENT OF THE OONTBAOT.
288. A law lapain the obllsatiem of oontraote and U Toid if t^-
(a) Pr«olnde« a reooTorjr for breaoh of the eomtraet.
G>> Exeuses one of the partios from perf onaias it.
(e) Readers the eoatraot isTalid*
(d) Pats aew tornu into the eontraet.
(e) Enlarges or abridges tbe intention of tbo parties.
(f ) Postpones or aeeelerates the tiaie for perfonnanee of the eon-
traot.
(S> Interposes sneb obstaeles to its eaforeemont as praetieallj to
annnl it.
Any statute is unconstitutional, as impairing the obligation of con-
tracts, which introduces a change into the express terms of the con-
tract, or its legal construction, or its validity, or its discharge, or
(within certain limits to be presently noticed) the remedy for its en-
forcement. The extent of the change is not material ; any impairment
of the contract is unlawful. "This is not a question of degree or
manner or cause, but of encroaching in any respect on its obligation,
dispensing with any part of its force." •
Hence there is an impairment of the contract if either party to it is
absolved by law from performance of it,** or is permitted to discharge
1 Blade, Const Prohlb. | 139 ; Story, Gonfl. I^aws, | 266 ; Johnson y. Dun-
can's Syndics, 3 Mart. (O. S., La.) 530, 6 Am. Dec. 675; Auld y. Butcher, 2
Kan. 136. Bee 'Vonntitutifmal Law,'' Dec. Dig. (Key No.) | 120; Cent, Dig.
U 279, 285.
• Louisiana y. New Orleans, 102 U. S. 203, 26 L. Ed. 132. See ^^ConsUtu-
tional Law,** Dec. Dig. (Key XoJ f 115; Cent. Dig. f 27h
• Planters' Bank y. Sharp, 6 How. 301, 327, 12 L Ed. 447. See ^Vonstitu-
tional Law,** Dec Dig. (Key No.) §f iiJ, 166; Cent. Dig. U ^4, 429.
10 State y. Krahmer, 106 Minn. 422, 117 N. W. 780, 21 L. R. A. (N. S.) 167.
But contra as to a statute making it a felony for officers of a building and
loan association to receive dues owing to it after knowledge that it is insol-
724 LAWS iMPAiamo thb obliqation of contracts. (Ch. 21
it on pa)rment of a less sum than was stipulated for/* though a pro-
vision of law merely for the solvability of the contract in a different
currency than that agreed upon does not necessarily produce this
result.** So a statute forbidding the renewal or extension of a con-
tract (such as a mortgage) except on more onerous terms or with addi-
tional formalities, is invalid as applied to existing contracts,*' and so
is one destroying or displacing the lien of existing mortgages or judg-
ments.** Again, although the remedy for its enforcement is not strict-
ly speaking any part of the contract, yet a statute which cuts off all
remedy or which deprives one party of an important and valuable ex-
isting remedy does in effect impair its obligation.*' On this ground
it is held that a statute repealing a former law, which made stock-
holders in a corporation personally liable for its debts, is, as respects
creditors of the corporation holding claims against it at the time of the
repeal, a law impairing the obligation of contracts.** But a statute
changing the rate of interest which a judgment shall bear after its
entry does not come within this prohibition, for, as will be shown
later, a judgment is not a contract, and if the original claim arose out
of contract it was merged in the judgment.*^ Nor can it be said that
vent State v. Missouri Guarantee Sav. & Bldg. Ass'n, 167 Mo. 489, 67 S. W.
215, 00 Am. St Rep. 426. See ''Constitutional Law,'* Dec, Dig. (Key No.) §§
116, 1S9, 164, 165; Cent. Dig. f «7-*.
11 BosweU v. Security Mut Life Ins. Co., 193 N. T. 405, 86 N. E. 532, 19 L.
R. A. (N. S.) 1003 ; Court of Honor v. Hutchens (Ind. App.) 82 N. B. 89. See
''Constitutional Lqax>:' Dec. Dig. (Key No.) |§ 115, 161 156; Cent. Dig. §{ t74,
429.
IS Serralles v. Esbri, 200 U. S. 103, 26 Sup. Ct 176, 50 L. Ed. 391. See
"Constitutional Law," Dec. Dig. (Key No.) § 154; Cent. Dig. §§ 454, 497.
i« Wilson V. Pickering, 28 Mont 435, 72 Pac. 821. See "Constitutional
Law,'' Dec Dig. (Key No.) § 155; Cent. Dig. i 420.
1* Crowther v. Fidelity Ins., Trust & Safe-Deposit Co., 85 Fed. 41, 29 C C
A. 1 ; Merchants' Bank v. Ballou, 98 Va. 112, 32 S. E. 481, 44 L. R. A. 306^ 81
Am. St Rep. 715. See "Constitutional Law," Dec. Dig. (Key No.) § 161; Cent.
Dig. i 494'
IB Jacoway y. Denton, 25 Ark. 625; Burrows y. Vanderbergh, 69 Neb. 43,
95 N. W. 57. Bee "Constitutional Law," Dec. Dig. (Key No.) §§ 155, 168; Cent.
Dig. i 475.
i« Hawthorne v. Calef, 2 Wall. 10, 17 L. Ed. 776; OchHtrce ▼. Iowa R, Con-
tracting Co., 21 Wall. 249, 22 L. Ed. 546; Western Nat Bank y. Reckless
(C. a) 96 Fed. 70; Converse y. ^tna Nat Bank, 79 Conn. 163, 64 AtL 341;
Walterscheid v. Bowdlsh, 77 Kan. 665, 96 Pac. 56 ; Barton Nat. Bank y. At-
kins, 72 Vt 33» 47 Atl.' 176. See "Constitutional Law," Dec. Dig. (Key No.)
i 154; Cent. Dig. f 4tS.
17 Stanford y. Coram, 28 Mont 288, 72 Pac. 6S5, 98 Am. St Rep. 566; Wyo-
§§ 283-286) WHAT GONTBAOT8 ABB PBOTECTSD. 725
the obligation of a contract is impaired by a law which validates it,
as against previous defects or want of authority,** or by one which is
merely permissive and which takes away no existing power and affects
no existing right.** And since all contracts are supposed to be made in
contemplation of and with reference to the existing statutory law of
the state, it is only subsequent enactments which can be objected to as
impairing their obligation ; in other words, there can be no constitu-
tional objection on this ground to any statute in force at the time the
contract was made.**
WHAT GONTBAGT8 ABS PBOTEGTED.
283. The '^eontzwets'* intended to be ■eovred by tUs olanse of tlio oospi
stitntion «re all sneli mm adlcbt bo lajnriovily aflootod by tbo
loglfllatiTO aotioa of tbo etote If not tbiu protootod.
884, State lesislatvros avo tbiu probibitod from Imj^lrtng tbe ob«
llsation of —
(a) Agreements or eompaets of tbe state witb anotber state.
(b) Gontraots of tbe state witb eorporations or Indlvidnals.
(o) Grants of property or franebises by tbe states
(d) Contraets between priTate persons.
286. Tbe oontraets tbns proteeted from impairment by tbe eonstitn*
tion do not inolndo—
(a) Statutory grants of mere lieensee or eiramptiona.
G>) Tbe tennre of pnblle oSlees.
(o) niegal or immoral oontraets.
(d) Judgments of tbe eonrts.
(e) Tbe status oreated by
In General
The protection furnished by this clause of the constitution extends
to all contracts, whoever may be the parties to them. It includes con-
tracts between states, and contracts between a state or a municipal cor-
n
mlng Nat. Bank v. Brown, 9 Wyo. 153, 61 Pac. 46K. See ^OonstUutiaruU Loic,
Dec. Dig. (Key NoJ 1 168; Cent. Dig. I W.
18 Steger y. Traveling Men's BnUding Sc Loan Afls'n, 206 111. 236, 70 N. B.
236, 100 Am. St Rep. 225 ; Swope v. Jordan, 107 Tenn. 166, 64 Sl W. 52. Bee
''Constitutional Law,** Dec. Dig. (Key No.) i 1S6; Cent. Dig. | 429.
i» State ▼. Butler, 18 Lea (Tenn.) 400. See ^^Constitutional Law,** Deo. Dig.
(Key No.) fi lt9; Cent. Dig. I S94.
so Blackstone v. Miller, 188 U. B. 189, 28 Sup. Gt 277, 47 L. Ed. 439 ; Na-
tional Bank of Augusta y. Augusta Cotton & Oompireas Co., 104 6a. 403, 80 SL
E. 888 ; Com. y. Eeary, 198 Pa. 500, 48 Aa 472. See "Conetitutional Law,*'
Deo. Dig. (Key No.) i 154; Cent. Dig. i 217.
726 LAWS IMPAIRING THE OBLIGATION OF CONTRACTS. (Ch. 21
poration and citizens, as well as those between private parties, and con-
tracts between a corporation and its stockholders.*^ It applies to
contracts of every species and variety, including mortgages,** and ne-
gotiable instruments. *• And its effect does not depend on the place
where the contract was made; for one state cannot pass a law im-
pairing a contract made in another state.** Further, the provision ap-
plies to executory as well as executed contracts, and to implied as well
as express contracts.** But it does not cover gratuitous concessions,
quasi contracts, or obligations arising out of tort**
Contracts between States.
Agreements or compacts between two states of the Union, such
as they are authorized to make with the consent of congress, are se-
cured against impairment by this clause of the constitution, and any
person who is injured by a legislative action of either state, amounting
to a violation of the agreement, has a standing to complain of its
unconstitutionality.*'
Statutes.
A statute may contain a contract, or the offer of a contract, or be
the evidence of a contract, or be essential to the obligation of a con-
tract made on the faith of its continuance in force ; but a statute is
not a contract purely and solely per se. The mere enactment of a law
on any subject does not amount to a contract between the legislature
and the people that such law shall remain in force, nor does it abridge
the power of the legislature to amend or repeal it. The case is differ-
si The creation of preferred stock by a corporation, not authorized by its
charter or by any general law in force when It was incorporated, and against
the objection of a shareholder, violates the obligation of the contract between
the corporation and the stockholder. EJlnsteln v. Rarttan Woolen Mills (N.
J. Ch.) 70 Atl. 295. See '^Constitutional Law,** Dec. Dig. (Key No.) |§ U5, 154;
OerU. Dig. H 461-4S6.
ss Wilson T. Pickering, 28 Mont 43S, 72 Pac. 821. See ''Constitutional Lair,
Dec. Dig. (Key No.) | 155; Cent. Dig. {§ ^20, 480.
ss Dillingham v. Hook, 82 Kan. 185, 4 Pac. 166. See "Constitutional La/w,
Dec. Dig.. (Key No.) § 150; Cent. Dig. § 414-
«* Western Nat Bank y. Reckless (C. C.) 96 Fed. 70. See "Constitutional
Law,*" Deo. Dig. (Key No.) ^ 119.
ss Holmes v. Holmes, 4 Barb. (N. Y.) 295. See "Constitutional Laic,** Dec.
Dig. (Key No.) %% 145, loS; Cent. Dig. §§ 281, 418.
>• Arnold t. Alden, 173 111. 229, 50 N. E. 704. See "Constitutional Late,'*
Deo. Dig. (Key No.) § 145; Cent. Dig. § 425.
«T Green v. Biddle, 8 Wlieat 1, 5 L. Ed. 547. See "Constitutional Law,**
Dec. Dig. (Key No.) S US; Cent. Dig. I 282.
»»
»t
§§ 288-286) WHAT GONTBAOTS ABB PBOTBCTBD. 727
ent if the act makes a grant or an engagement of the state, or provides
remedies which enter into the composition of future contracts.
Contracts of a State with Individuals,
When a state enters into a contract with a private person, for the
construction of public works, the furnishing of public supplies, or any
other sort of business engagement, it incurs a binding obligation which
the legislature may not lawfully abrogate or impair.*' And this in-
cludes of course contracts made by state officers on its behalf, provided
they were duly authorized.** The control of the legislature over mu-
nicipal corporations is practically unlimited, and no element of con-
tract is involved in laws creating or abolishing them or changing their
boundaries or territory.** But at the same time, laws thus affecting
municipalities must not be allowed to impair valid obligations to pri-
vate persons previously contracted by the municipal authorities.**
A law of the state offering a bounty for any particular kind of
services to be rendered is an offer of a contract to any person who
will accept its terms. But a contract of this sort does not become com-
plete and binding until it is accepted by an individual and the work
begun or the services rendered. Until that is done, the mere offer on
the part of the state may be withdrawn ; but not so after it has been
acted on in a specific instance.** On the same principle, a grant of a
penalty, or of a share in a forfeiture, to any person who will give in-
formation and sue for it, may be considered in the nature of a contract
by the state. But such penalties and forfeitures may be released by
statute at any time before an actual recovery has been had.** But a
mere gratuitous concession on the part of the state, not founded upon
18 People y. Stephens, 71 N. Y. 527 ; Danolds v. State, 88 N. Y. 36» 42 Am.
Rep. 2T7 ; Carr v. State, 127 Ind. 204, 26 N. E. 778, 11 L. R, A. 370, 22 Am. St
Rep. 624 ; Franklin Connty Ck)urt v. Deposit Bank of Frankfort, 87 Ky. 870,
9 8. W. 212, 10 Ky. Law Rep. 60a See *Von9titutional Late," Dec Dig, (Key
No.) H 120, 121; Cent. Dig. K 292, S09.
*• Herd v. State, 167 Ind. 622, 79 N. E. 916. See ''Constitutional Law,"* Dec
Dig. (Key No.) | 120; Cent. Dig. | 292.
so Board of Education of Union Free School Dlst No. 6 of Town of Oort-
landt Y. Board of Education of Union Free School Dlst No. 7 of Town of
Ck)rtlandt, 179 N. Y. 5S6, 71 N. E. 1128. See ''Constitutional Law,** Deo. Dig.
(Key No.) U 120, 127; Cent. Dig. U 925-^41.
•1 Graham y. Folsom, 200 U. S. 248, 26 Sup. Ct 245, 50 L. Ed. 464. See
"ConstUutional Law,** Dec. Dig. (Key No.) U 121, US; Cent. Dig. U S4i^55.
SI Welch y. Cook, 97 U. & 541, 24 L. Ed. 1112. See "Constitutional Law,"
Dec Dig. (Key No.) ^ 121; Cent. Dig. %% SOS, SO^.
•• OonflscaUon Cases, 7 WaU. 454^ 19 L. Ed. 196 ; United States ▼• Tynen,
728 LAWS IMPAIRING THB OBLIGATION OF CONTRACTS. (Ch. 21
any consideration or advantage moving to it, does not amount to a
contract.**
Contracts of Municipal Corporations.
The valid contract of a municipal corporation is just as sacred from
legislative interference or destruction as one between private persons."
Hence neither the municipality itself nor the state legislature can
repudiate or impair a valid contract by the municipality for the pur-
chase of property,*' the supply of commodities needed for municipal
purposes or of gas to illuminate its streets,'^ or the employment of
persons to act for it in a business capacity, not being public officers or
agents.* •
Same — Grcmt of Franchises in Public Streets,
Where a municipal corporation grants to a street railway com-
pany, or a gas or electric light company, or water company, or other
public service corporation, a franchise to construct its works along or
under the public streets, or otherwise to use them for the purposes of
its business, and the grant is accepted and acted on, it becomes an in-
violable contract and is protected by this clause of the constitution,**
although the municipality may still regulate or restrict the company in
U Wall. 88, 20 L. Ed. 153. See **Con^tituiional Law,*' Dec, Dig. (Keu No.) I
104; Cent, Dig. ^ 2SS.
•« Wheeling & B. Bridge Co. v. Wheeling Bridge Ck>., 138 U. S. 287, 11 Sup.
Ct 301. 34 L. Ed. 907. See '^Constitutional Law,** Dec. Dig. (Key No.) i 128;
Cent. Dig. | S75; "Ferries,** Dec. Dig. (Key No.) f 16; Cent. Dig. { S9.
SB Shlnn v. Cunningham, 120 Iowa, 383, 94 N. W. 941. See "Constitutional
Law,** Dec. Dig. (Key No.) | 121; Cent. Dig. f§ S^^SiS.
»« Omaha Water Co. v. Omaha, 162 Fed. 225, 89 C. C. A. 205. See "Consti-
tutional Law,** Deo. Dig. (Key No.) {§ 120, 121, 129; Cent. Dig. { Si2.
ST Lima Gas Co. ▼. Lima, 4 Ohio Clr. Ct. R. 22. See "Constitutional Law,**
Dec. Dig. (Key No.) ( 129; Cent. Dig. §§ S62, S79.
88 Wilmington ▼. Bryan, 141 N. C. 666, 54 S. E. 543. See "Constitutional
Law,** Dec. Dig. (Key No.) § U6; Cent. Dig. §§ ^56, 457.
88 Farmers* Loan & Trust Co. v. Meridian Waterworks Co, (C. C.) 139 Fed.
661 ; Mercantile Trust & Deposit Co. v. Collins Park & B. R. Co. (C. C.) 99
Fed. 812 ; City of Newton v. Levis, 79 Fed. 715, 25 a C. A. 161 ; City of Los
Angeles v. Los Angeles City Water Co., 61 Cal. 65 ; City Ry. Co. y. Citizens'
St R. Co. (Ind.) 52 N. B. 157 ; City of Indianapolis v. Consumers' Gas Trust
Co., 140 Ind. 107, 39 N. E. 433, 27 L. R. A. 514, 49 Am. St Rep. 183 ; Shreve-
port Traction Co. ▼. Shreveport, 122 La. 1, 47 South. 40; Northwestern Tel.
Elxch. Co. V. Minneapolis, 81 Minn. 140, 83 N. W. 527, 53 L. R. A. 175 ; Hovel-
man y. Kansas City Horse R. Co., 79 Mo. 632; Commercial Electric Light &
Power Co. v. Tacoma, 17 Wash. 661, 50 Pac. 592; Town of Mason v. Ohio
River R. Co., 51 W. Ya. 183, 41 S. E. 418 ; Qarksburg Electric Light Co. ▼.
8§ 283-285) WHAT GONTBACT8 ARB PROTECTED. 729'
the enjoyment of sach franchises in the proper exercise of its police
power.** But no such contract can be claimed to exist where the com-
pany has never obtained the consent of the city authorities to its pro-
posed use of the streets/^ or where, though such consent was legally
given, it has never been acted on.**
Pecuniary Obligations of State or Municipalities,
The bonds or other evidences of debt issued by a state or municipality
are in the nature of contracts with the lawful holders thereof. And
this contract includes such provisions of law, with regard to the receiv-
ability of the bonds or coupons for taxes, or the exemption of the
securities from taxation, as existed when they came into the hands of
the holders, and were intended to promote their credit or their circula-
tion.** Thus, when such public securities are held by non-residents,
who are not subject to taxation by the state, a subsequent statute tax-
ing the securities and directing that the amount of the tax shall be
deducted from the stipulated periodical payments, impairs the obliga-
tion of the contract and is void.** The same principle governed the
celebrated "Virginia coupon cases," which were long and earnestly
contested in the supreme court, but resulted in holding the state firmly
to the agreement which it had made with its creditors. This litigation
grew out of the funding act of 1871, in that state, which provided that
the coupons on the bonds then issued should be receivable in payment
Clarksburg, 47 W. Va. 780, 35 S. B. 904, 50 L. R. A. 142. See ^'Constitutional
Law,'' Dec. Dig. (Key No.) I ISi; Cent. Dig. % SU-
40 Camden Interstate R. Co. v. Catlettsburg (C. C.) 129 Fed. 421 ; Michigan
Tel. Co. y. Charlotte (C. C.) 98 Fed. 11 ; City of Westport ▼. Mulholland, 159
Mo. 86, 00 S. W. 77, 53 L. IL A. 442 ; Oty of Springfield v. Smith, 138 Mo.
645, 40 S. W. 757, 87 L. R. A. 446, 60 Am. St Rep. 569. See ''Constitutional
Lawr Dec. Dig. (Key No.) i 134; Cent. Dig. U $U, W^
*i Underground R. R. of City of New York v. New York (C. C.) 116 Fed.
952. See "Constitutional Law,'' Dec. Dig. (Key No.) § 134; Cent. Dig. | S44.
«s People y. ESllson, 115 App. Dlv. 254, 101 N. Y. Supp. 55. Bee '^Constitu-
tionai Law," Dec. Dig. (Key No.) U 129, 194; Cent. Dig. §§ 544. S64.
«< Houston & T. a R. Co. y. Texas, 177 U. S. 66, 20 Sup. Ct 545, 44 I* Ed.
678 ; Shaplelgh y. San Angelo, 167 U. S. 646, 17 Sap. Ct 957, 42 L. Ed. 310 ;
Gamble v. Rural Independent School Dist, 146 Fed. 113, 76 C. C. A. 589;
Little River Tp., Reno County, y. Board of Com*rs of Reno County, 65 Kan.
9, 68 Pac. 1105. See "Constitutional Law," Dec. Dig. (Key No.) U 12i, 14S;
Cent. Dig. ff Sl2, SIS, S4&-348.
«« State Tax on Foreign-Held Bonds^ 16 Wall. 300, 21 L. Ed. 179 ; Murray
T. Charleston, 96 U. a 432, 24 L. Ed. 760. See "ConstUutional Law," Dec.
Dig. (Key No.) i 119; Cent. Dig. U ^^f 289.
730 LAWS IMPAIRINO THE OBLIGATION OF CONTRACTS. f Ch. 21
of all taxes and debts to the state. This privilege the legislature after-
wards attempted to rescind, on the ground of frauds in the manipula-
tion of the securities. But it was held that the contract made with
the holders of the securities could not be thus impaired, and that the
state must abide by its original agreement.* • So also, where a statute
has invested a municipal corporation with the power of local taxation
to enable it to meet the interest and principal of a bond issue, or any
other contractual obligations, which it was thereby authorized to make,
the power of taxation thus conferred enters into and becomes a part
of the contract, and may not be withdrawn or lessened until the obli-
gations are satisfied.**
Grants by a State.
Grants of property or franchises, made by a state to a private per-
son or corporation, are contracts within the meaning of this clause of
the constitution. Thus, at an early day, the state of Georgia sold to
certain individuals a tract of the public lands, received the purchase
money, and issued a patent. Afterwards it was alleged that the sale
had been procured by fraud and misrepresentation on the part of the
purchasers, and a statute was passed annulling the grant, setting aside
the patent, and authorizing the sale of the same land to other persons.
It was held that this statute impaired the obligation of the contract
made with the first purchasers and was void.*^
Grants of Exclusive Privileges,
The legislature of a state, if the public interests may seem to make it
desirable, may grant to a person or corporation a monopoly or exclu-
sive franchise or privilege, and the grant may assume the form of a
*• Antonl V. Greenhow, 107 U. S. 769, 2 Sup. Ct, 91, 27 L. Ed. 468; Virginia
Coupon Cases, 114 U. 8. 270, 6 Sup. Ct. 903-923. 29 U Ed. 185; McGahey
v. Virginia, 135 U. S. 062, 10 Sup. Ct. 972, 34 L. Ed. 304. See ^Vonstitutional
Law,'* Dec Dig. (Key Vo.) % 144; Cent. Dig. ( S2S.
*« City of Ft Madison v. Ft Madison Water Co., 134 Fed. 214, 67 O. C. A.
142 ; Hicks v. Cleveland, 106 Fed. 459, 45 C C. A. 429 ; City of Austin v. Oa-
hill, 99 Tex. 172, 88 S. W. 542; Welch Water, Light & Power Co. v. Welch, 64
W. Va. 373, 62 S. B. 497. See "Constitutional Law,** Dec. Dig. (Key No.) ^
U3; Cent. Dig. S§ S46S48.
*f Fletcher v. Peck, 6 Cranch, 87, 3 L. Ed. 162. And see Minnesota y. Dnluth
& I. R. R. Co. (C. CL) 97 Fed. 353 ; Trustees of Freeholders & Commonalty of
Town of Brookhaven v. Smith, 188 N. Y. 74, 80 N. B. 665, 9 L. R. A. (N S.)
326; Keith v. Guedry (Tex. Civ. App.) 114 S. W. 392. Compare Sullivan v.
Texaa, 207 U. S. 416, 28 Sup. Ct. 215, 52 L. Ed. 274. Bee **Con8tUutional Law,**
Deo. Dig. (Key No.) 1 12S; Cent. Dig. U 29S, 294.
§§ 283-285) WHAT CONTRACTS ABB PBOTBCTBD. 731
contract, the obligation of which must not thereafter be impaired.**
But monopolies are not favored in law, and grants of this kind are
subject to the following four limitations :
(1) The grant is to be construed strictly against the grantee and in
favor of the public. Nothing will pass by implication, and the extent
of the privileges granted will not be enlarged by inference or construc-
tion. Thus, the grant will not be understood to prevent the legislature
from according rival or competing franchises to other persons, unless
its plain terms convey that meaning.**
(2) The intention to grant a monopoly will never be presumed, but
on the contrary it will be presumed that the legislature did not intend
thus to limit its own power or that of its successors. And this pre-
sumption can be overcome only by clear and satisfactory inferences
from the terms of the grant.**
(3) The rights or franchises granted may be revoked or annulled
by the state, in the exercise of the power of eminent domain, or their
value may be impaired by the grant of similar privileges to others.
But in this case, due compensation must be made.**
(4) The owner of the privilege or franchise may be regulated in
the use of his property and the enjoyment of the privilege, by all such
laws and ordinances as are established in the lawful exercise of the
police power, even though its value may be thereby impaired, or the
exclusive features of the grant be infringed.
To illustrate these rules, we may refer to a case wherein it was held
that a legislative grant of an exclusive right to supply water to a mu-
48 Olty Rr. Oo. v. ClUzena' St R. Ck).. 166 U. 8. 657, 17 Sup. Ct. 653, 41 L.
Ed. 1114. But an exclusive grant of a franchise by a town having no author-
ity to malce such grants, being void. Is not a contract protected by the fed-
eral constitution. Clarksburg Electric Light Oo. v. Clarlcsburg, 47 W. Va. 739,
35 S. E. 904, 50 L. R. A. 142. See 'Constitutional Law,"* Dec Dig, (Key No.)
1 128; Cent, Dig. §f S72-S19.
«*CharleB River Bridge v. Warren Bridge, 11 Pet. 420, 9 L. Ed. 773; Wash-
ington St B. Tumpllce Oo. v. Maryland, 3 Wall. 210, IS L. Bd. 180 ; Knoxvllle
Water Oo. v. KnozvUle, 200 U. S. 22, 26 Sup. Ct 224. 50 1a Ed. 353 ; North
Springs Water Co. v. Taeoma, 21 Wash. 517, 58 Pac. 773, 47 L. R. A. 214. See
Constitutional Law.** Dec. Dig. (Key No.) { 128; Cent. Dig. U 91Z-S19.
»o city of Detroit v. Detroit & H. P. R. Co., 43 Mich. 140, 6 N. W. 275. See
Constitutional Law,** Dec. Dig. (Key No.) i 128; Cent. Dig. U nZ-919.
■1 Richmond, F. & P. R. Co. v. Louisa R. Co., 18 How. 71, 14 L. Bd. 55;
Enfield Toll Bridge Co. v. Hartford & N. H. R. Co., 17 Conn. 40, 42 Am. Dec
716 ; West River Bridge Co. v. Dix, 6 How. 507, 12 L. Bd. 535 ; Binghamton
Bridge Case, 3 Wall. 51, 18 L. Bd. 137. See '^Constitutional Law;* Dec Dig.
{Key No.) ff 118, 128; Cent. Dig. §§ 257, S72-S79.
**
•*
732 LAWS IMPAIRING THB OBLIGATION OF CONTRACTS. (Ch. 21
nicipality and its inhabitants, through pipes and mains laid in the
public streets, and upon condition of the performance of the service
by the grantee, is a grant of a franchise vested in the state, in con-
sideration of the performance of a public service, and after perform-
ance by the grantee, is a contract protected by the federal constitution
against state legislation, and against provisions in state constitutions,
to impair it'*
Licenses and Exemptions,
A license is a permission granted to an individual to do some act
or engage in some occupation which, without such permission, would
be unlawful. A license is not a contract** For instance, a license
to sell liquor at retail may be revoked, or rendered nugatory by a
change in the law of the state, or subjected to the payment of a
heavier fee, or hedged about with more severe restrictions, before
the expiration of the term for which it was granted. And in all this
there is no impairment of contract obligations.** So a grant by a city
of a right to establish and maintain a packing house on certain prem-
ises does not constitute a contract but a mere temporary license ; •• and
this is true in general of the right to engage in or carry on avocations
affected with a public interest.** Again, a license to maintain a lot-
tery or conduct a game of chance is a mere privilege, revocable at will,
»« St. Tammany Waterworks Co. v. New Orleans Waterworks, 120 U. S.
64, 7 Snp. Ot. 405, 30 L. Bd. 563. But a contract with a municipal corporation,
whereby the corporation grants to the contractor the sole privilege of supply-
ing the municipality with water from a designated source for a term of years,
is not impaired, within the meaning of this clause of the constitution, by a
grant to another party of a privilege to supply it with water from a different
source. Stein v. Bienville Water Supply Co., 141 U. S. 67, 11 Sup. Ct 892, 35
U Ed. 622. See, also, Hamilton Gaslight & Ck)ke Co. v. HamUton, 146 U. S.
25S, 13 Sup. Ot 90, 36 L. E^d. 963; Columbia Ave. Savings Fund, Safe De-
posit, Title & Trust Co. v. Dawson (C. C) 130 Fed. 152. See "ConsiUutional
Law:* Dec Dig, (Key No,) U 111, 128; Cent, Dig, §§ 286, S72-S79,
Bs Bishoff y. 'State, 43 Fla. 67, 30 South. 80a See "Constitutional Law:'
Dec, Dig, (Key No,) | 1S6; Cent, Dig, K 299, SOO, SiS.
»*Clty of Carbondale v. Wade, 106 IlL App. 654; Moore v. Indianapolis,
120 Ind. 483, 22 N. B. 424 ; McKInney v. Salem, 77 Ind. 213 ; Calder v. Kurby,
5 Gray (Mass.) 697; Fell y. State, 42 Md. 71, 20 Am. Rep. 83; State y. Cor-
ron, 73 N. H. 434, 62 Ati. 1044 ; People v. Flynn, 184 N. Y. 579, 77 N. B. 1194 ;
Metropolitan Board of Bxeise y. Barrie, 34 N. Y. 659. See "Constitutional
Law:* Dec, Dig. (Key No.) S 1S6; dent. Dig, | SOO,
»» Portland v. Ctook, 48 Or. 550, 87 Pac. 772, 9 L. R. A. (N. S.) 733. See
**Con8tUutional Law:* Deo, Dig, (Key No,) | 1S6; Cent, Dig. || 299, S4S,
»• Baker y. Lexington, 21 Ky. Law Rep. 809, 53 S. W. 16. But see Czarra
§§ 283-285) WHAT COMTBAGTS ARC PBOTBOTBD. 733
and not a contract, even though founded on a consideration.'^ And
a permission granted to a foreign insurance company to do business
within the state, upon complying with certain conditions, does not
raise a contract between the state and the company, when it complies
with the requirements, in any such sense as will prevent the state from
afterwards imposing an annual license tax upon it for the same
privilege.'* And, in general, a right which is derived from the exer-
cise of legislative authority is as much within the power of that body
afterwards to change, modify, or abrogate as it was in the first
instance to enact it.** Thus, "the duty of serving on juries, like the
duty of bearing arms in the defense of the government, is one of the
inseparable incidents of citizenship, and can be exacted whenever and
however the sovereign authority shall command. All exemptions of
this kind are mere gratuities to the citizen, which cannot be the sub-
ject of contract between men and the state, and may be withdrawn at
the pleasure of the law-making power." And, consequently, the right
of exemption from jury service ceases, when the law granting it is
repealed, even in the case of those persons who, by the performance of
specified services, have earned an exemption under its provisions.**
On the same principle, a statute exempting the employes of certain rail-
roads from the duty of working on the public roads gives an immunity
to such employes, but not in the nature of an irrevocable contract ; the
legislature may, in its discretion, repeal the exemption and impose the
duty.*^ And again, a husband has no vested right in homestead ex-
Y. Board of Medical Snp'ra of District of Columbia, 25 App. D. O. 443. See
*VamtUutUmal Law,*' Deo. Dig. (Key No.) i 1S6; Cent. Dig. i| t99, S4S.
ST St<Hie y. Mississippi, 101 U. Sk 814, 25 L. OL 1079 ; Boyd v. Alabama, 94
U. S. 646, 24 L. Ed. 802; littleton y. Burgess, 14 Wyo. 173, 82 Pac. 864, 2
Ll R. A. (N. 8.) 031. See "Constitutiondl Law," Dec. Dig. (Key No.) U 19S,
1S6; Cent. Dig. | $6S.
B* Home Ins. Go. y. Augusta, 98 U. 8. 116, 23 L. Ed. 825. See **Constiti^
Hanoi Law;' Dec. Dig. (Key No.) K ISO, ISl; Cent. Dig. | SOI.
B» People v. Prencb, 10 Abb. N. C. (N. Y.) 418. See "Constitutional Law,''
Dec Dig. (Key No.) i HO; Cent. Dig. i S61.
•0 Appeal of Scranton, 74 111. 161 ; Bragg y. People, 78 111. 328; In re Pow-
ell, 5 Mo. App. 220; Dunlap y. State, 76 Ala. 460; State y. CautweU, 142
N. a 604, 55 a E. 820, 8 L. R. A. (N. S.) 408. But compare Ex parte Ooodin,
67 Mo. 637. See *'CoMtitutional Law," Dec. Dig. (Key No.) || 92, HI; Cent.
Dig. U 178, S02.
«i Ex parte Thompson, 20 Fla. 887. See "Constitutional Law," Cent. Dig.
I i73.
734 LAWS IICPAIRINO THB OBLIGATION OF CONTRACTS. (Ch. 21
emption statutes, and the legislature may, by altering or repealing them,
at any time change the method of alienation.**
OMces.
The election or appointment of a public officer, and his acceptance
of the office, do not constitute a contract between the state or munici-
pality and himself. Such an officer is a public agent or trustee, but
he does not hold his office by virtue of any contract. The constitu-
tion may protect him in his office or his compensation, and if so, he
is beyond legislative interference. But so far as concerns the clause
we are now considering, it is entirely competent for the legislature to
abolish the office, remove the incumbent, change the scope of his ju-
risdiction or duties, or reduce or alter his salary, emoluments, or fees,
and this without impairing any contract which the constitution pro-
tects. •• Public office "has in it no element of property; it is not
alienable or inheritable; it is a personal public trust, created for
the benefit of the state and not for the benefit of the individual who
may happen to be its incumbent." •* The prospective salary or
other emoluments of a public office are not property in any sense,
and may be increased, reduced, or regulated by law at all times,
except in cases where the constitution expressly forbids it. The
right to the compensation grows out of the rendition of services,
and not out of any contract between the government and the officer
that the services shall be rendered by him.*' But when services have
been rendered by a public officer, under a statute or ordinance which
fixes his compensation therefor, there arises an implied contract to
•sMassey y. Womble, 69 Mlas. 847, 11 South. 188. See "Constitutional
Law,*' Dec. Dig. (Key No.) U 99, ISO; Cent. Dig. U 205, 499-
«» Butler v. Pennsylvania, 10 How. 402, 13 L. Bd. 472; Love v. Jersey City,
40 N. J. Law, 456; Barker v. City of Pittsburg, 4 Pa. 49; Com. v. Weir, 165
Pa. 284, 30 Atl. 835 ; State v. Hermann, 11 Mo. App. 48 ; Bryan v. Cattell, 16
Iowa, 538 ; Farwell v. City of Rockland, 62 Me. 296 ; Vlncenfaeller y. Reagan,
69 Ark. 460, 64 S. W. 278 ; McSurely ▼. McGrew (Iowa) 118 N. W. 415 ; State
y. Clinton, 26 La. Ann. 406 ; Kenney y. Hudspeth, 59 N. J. Law, 320, 36 Atl.
662 ; Mlal y. Ellington, 134 N. C. 131, 46 S. E. 961, 65 L. R. A. 697 ; Com. y.
Molr, 199 Pa. 534, 49 Atl. 351, 53 L. R. A. 837, 85 Am. St Rep. 801 ; People
V. Coler, 173 N. Y. 103, 65 N. E. 956. See '^Constitutional Law," Dec. Dig.
(Key No.) | 1^0; Cent. Dig. || SS6, 850-361.
•* Ex parte Lambert, 52 Ala. 79. See "Constitutional Law,*' Dec Dig. (Key
No.) 1 140; Cent. Dig. U SS6, S56-^61.
•» Conner v. City of New York, 5 N. Y. 285 ; Smith y. City of New York,
37 N. Y. 518. See "Constitutional Law,** Deo. Dig. (Key No.) | HO; Cent. Dig,
i S58.
§§ 288-285) WHAT CONTRACTS ABB PROTBOTBD. 735
pay for such services at that rate, and hence a law fixing a different
or less compensation for such past services would impair the obligation
of the contract and be unconstitutional.* •
Illegal and Immoral Contracts,
If the consideration on which a contract is based is ill^^al, con-
trary to public policy, or immoral, it has no legal obligation entitled
to protection and respect.*^ But if the consideration was recognized
as lawful and sufficient, at the time the contract was made, it must not
be impaired by subsequent legislation, even though changes in the law
or public sentiment have now branded the consideration as illegal or
immoral. It was on this ground that the courts declared against the
validity of statutes prohibiting recovery on contracts for the sale of
slaves, passed after emancipation, so far as regards contracts entered
into when slavery was a recognized lawful institution.*' If a contract
entered into by a municipal corporation was void, because ultra vires,
a subsequent statute of the state, inconsistent with it, cannot be said to
impair its obligation.**
Judgments.
A judgment is not a contract within the meaning of this prohibitory
clause. There are some few cases in which it has been held that the
clause might be made to include the ordinary judgments of the courts,
but they proceeded upon a misapprehension of the constitutional prin-
ciple. It is true that statutes have been declared invalid, as obnoxious
to this inhibition, which vacated judgments, granted new trials, enacted
shorter statutes of limitation, exempted the debtor's property, gave
•• Fisk V. Police Jury, 116 U. S. 131, 6 Sup. Ct 329, 29 L. Ed. 587. See
'*Conetituiional Law,** Dec. Dig. (Key Vo.) | HO; Cent. Dig. | S60.
•7 Douglas Y. Kentucky, 108 U. S. 488, 18 Sup. Ct 199, 42 Ia Ed. 553 ; Mar-
shall V. Baltimore ft O. R. Co., 16 How. 314, 14 Ll Ed. 953 ; Logan & Bryan r.
Postal Telegraph & Cable Ca (C. C.) 157 Fed. 070; Piatt y. People, 29 III. 54 :
Meacham y. Dow, 32 V t 721 ; State v. Missouri, K. & T. R. Co. of Texas, Od
Tex. 516^ 91 S. W. 214, 6 Ll R. A. (N. &.) 783. See *'0on9iitutional Later Dec.
Dig. (Key TSo.) H i^^. 19ft, US, 165; Cent. Dig. U 279, 281. 28S, 292, S6S, U^
Wf 4^1-428, 460; "^Contracie;* Dec Dig. (Key NoJ U 103-^110, 112; Cent.
Dig. H 468-476, 477-508, 505-510h(t.
•• White Y. Bart, 13 Wall. 046, 20 U Ed. 685. Bee **Constitutional Law,**
Deo. Dig. (Key Vo.) | 155; Cent. Dig. % 291.
•• City of New Orleans y. New Orleans Waterworks^ 142 U. S. 79, 12 Sup.
Ct 142; 36 L. Ed. 943 ; Westminster Water Co. y. Westminster, 96 Md. 651,
66 Atl. 990, 64 L. R. A. 630, 108 Ank St Rep. 424 ; Clarksburg Electric light
Oow Y. Clarksburg, 47 W. Va. 789, 85 S. D. 994, 60 L. R. A. 142. Bee '*Canet4tu-
tional Law,** Dec Dig. (Key No.) U 120, 128; Cent. Dig. U 372-879.
736 LAWS IMPAIRING THB OBLIGATION OF CONTRACTS. (Ch. 21
stay of execution, and so on. But it was not because they attacked
the judgment, but because they destroyed or desiccated the remedy on
the original contract, which, as we shall see, is vital to the maintenance
of its obligation. And if the cause of action was in tort, it is very evi-
dent that the constitutional clause does not apply. ^^
Marriage.
Marriage is not a contract within the meaning of this clause. While
it includes some contractual elements, it is much more than a contract,
since it is to be regarded as an institution of society, and as estab-
lishing a status of the married parties which is not dissoluble at their
pleasure. Consequently, a divorce, whether granted directly by the
legislature, or by the courts under the authorization of a general law,
cannot be said to impair the obligation of a contract.^ ^
UMITATIOHS OH POWER OF IJBGISLATUBE TO OONTBAOT.
286. The power of a state lesielature, la la airing eontraots wltli la-
dlvidaale or eorporatioas. Is lindted by the rale that It Is aot
oompeteat to reliaqalsh aay of the eeseatlal powers of sover-
elgaty by am IrreToeaUe barsaia or sraat. Heaee If aay stat-
ute Is passed la the exercise of the police power or the power
of ea&laeat doaiala. It oaaaot be objeeted to It that it Tlolates
the obllsatloa of prior leglsIatlTe ooatraets, beoaase saoh coa-
traeta will acTcr be aaderstood as larolTlaK a sarr^ader of
these powers, or, if they do, they are to that extent beyoad
the legislative po^^er and Told*
TO Garrison v. City af New York, 21 WaU. 196, 22 L. EdL 612; Louisiana
r. City of New Orleans, 100 U. S. 285, 3 Sup. Ct. 211, 27 L. Ed. ftSe ; Freeland
V. Williams, 131 U. S. 405, 9 Sup. Ct 763, 30 L. Ed. 372; Louisiana v. St
Martin's Parish, 111 U. S. 716, 4 Sup. Ct 64S, 28 L. Ed. 574 ; McAfee v. Cov-
ington, 71 Oa. 272, 51 Am. Rep. 263; Morley v. Lake Shore & M. S. R. Co.,
146 U. S. 162, 13 Sup. Ct 54, 36 L. Ed. 925 ; McFaddln t. Evans-Snider-Buel
Co., 185 U. S. 505, 22 Sup. Ct 758, 46 L. Ed. 1012 ; City of Sherman y. Lang-
ham, 92 Tex. 13, 42 8. W. 961, 39 L. R. A. 258; White v. Crump, 19 W. Va.
5S3 ; Daridson v. Richardson, 50 Or. 323, 89 Pac. 742, 91 Pac. 1080, 17 L. R.
A. (N. S.) 319, 126 Am. St Rep. 73& Bee ^'Consmutional Law'' Dec. Dig.
(Key No.) || 152, 178; Cent. Dig. H 284, 425, 521.
TiCronlse y. Oonise, 54 Pa. 255; Maguire v. Magulre, 7 Dana (Ky.) 181;
Carson y. Carson, 40 Ml8& 349; Maynard y. Hill, 125 U. S. 190, 8 Sup. Ct
723, 31 L. Ed. 654 ; Hunt y. Hunt, 131 U. S. (Appendix) clxy, 24 L. Ed. 1109 ;
Grant y. Grant, 12 S. O. 29, 82 Am. Rep. 506. Compare State y. Fry, 4 Mo.
120. Bee *Vomtitutional Law," Dec. Dig. (Key No.) ^ 159; Cent. Dig. | 418.
§ 286) LIMITATIOMS ON POWEB OF LEGISLATURB TO OONT&AOT. 737
The rule just stated is of the utmost importance, and cannot be too
strongly commended to the reader's attention. It is obvious that if it
were in the power of any state legislature to fetter the hands of its
successors by bargaining away the essential powers of sovereignty,
government would pass from its legitimate repositories into private
hands. All legislative grants and contracts are therefore to be taken
subject to this limitation, that they do not involve any surrender of
these high powers, in any such sense that the same or a succeeding
legislature may not exercise them, though it be to the detriment of
rights or privileges secured by contract. All property, for instance, and
all rights and franchises, whether derived from legislative g^nt, char-
ter, or otherwise, are held subject to lawful police regulations.'* For
this reason, railroad companies, whatever may be their contractual
rights under their charters or grants, are subject to all reasonable and
proper police regulations in respect to the construction, maintenance,
and operation of their roads.'* Again, franchises granted to corpora-
tions, or property or rights granted to individuals, may be resumed by
the state in the exercise of the power of eminent domain.'* And al-
T« Hudson County Water CJo. v. McCarter, 200 U. S. S49, 28 Sup. Ct 529,
52 L. Ed. 828 ; Manlgault v. Springs. 199 U. S. 473, 26 Sup. Ct 127, 60 L. Ed.
274; Chicago, B. & Q. IL Co. ▼. Nebraska, 170 U. S. 57, IS Sup. Ct 513, 42
L. Ed. 948; American Kapld Tel. C6. v. Hess, 58 Hun, 610, 12 N. Y. Supp. 536;
City of Seattie v. Hurst, 50 Wash. 424^ 97 Pac. 454, 18 L. R. A. (N. S.) 169 ;
Laurel Fork & S. H. R. Co. y. West Virginia Transp. Co., 25 W. Va. 324. See
'^CoMtitutional Law,** Dec. Diff. (Key No.) H til, 118, i5+, 135, 15k: Cent.
Dig. it ftSe, 287, 8Uf 880-^87, 892, 898.
78 Northern Pac. R. Co. y. Minnesota, 206 U. S. 583, 28 Sup. Ct 341, 52 L.
Bd. 330; Wisconsin, M. & P. R. Co. y. Jacobson, 179 U. S. 287, 21 Sup. Ct 115,
45 L. Ed. 194 ; Chicago, B. & Q. R. Co. y. Nebraska, 170 U. S. 57, 18 Sup. Ct.
513, 42 L. Bd. 948; St Louis & S. F. R. Co. y. Mathews, 166 U. S. 1, 17 Sup. Ct.
243, 41 L. Ed. 611 ; OrlsseU y. Housatonic R. Co., 54 Conn. 447, 9 Atl. 137, 1
Am. St Rep. 138 ; Pe(^Ie y. Illinois Cent R. Co., 235 111. 374, 85 N. R. 606» 18
L. R. A. (N. S.) 915 ; Loulsyille & N. R. Co. y. Central Stockyards Co., 30 Ky.
Law Rep. 18» 97 S. W. 778; Alabama & V. K Co. y. King (Miss.) 47 South.
857; Illinois Cent R. Co. y. Copiah County, 81 Miss. 685, 83 South. 502; Pal-
myra Tp. Y. Pennsylvania R. Co., 63 N. J. Eq. 799, 52 Atl. 1132; Baltimore &
O. R. Co. Y. KresLger, 61 Ohio St 312, 56 N. E. 203 ; Town of Clarendon y. Rut-
land R. Co., 75 y t 6, 52 Atl. 1057 ; State Y. Thompson, 47 Or. 492, 84 Fac. 476,
4 L. R. A. (N. S.) 480; Missouri, K. & T. IL Co. of Texas y. McDuffey (Tex.
CHy. App.) 109 S. W. 1104. Bee 'VonstituiUmal Lau>," Dec. Dig. (Key No.) |
J83; Cent. Dig. U 876, 892.
T« See Stone y. Mississippi, 101 U. 8. 814^ 25 L. Ed. 10T9; Boston Beer Co.
Y. Masaachusetta^ 97 U. S. 225, 24 L. Ed. 969; New Orleans Gaslight Co. y.
Dooisiana Light & Heat Producing & Mfg. Co., 115 D. S. 650, 6 Sup. Ct 252,
Bl.Oon8T.L.(3d.Bd.) — 47
738 LAWS IHPAIBINO THE OBLIGATION OF CONTRACTS. (Ch. 21
though, as will presently be shown, an exemption from taxation may
take the form of an irrevocable contract, yet with this exception there
is no contract between the state and its citizens as to what taxes shall
be imposed, or when, or on what property, and no contracts between
individuals can be allowed to interfere with the legislative power and
discretion as to the imposition of these public burdens/*
0HARTEB8 AS 0ONTRA0T8.
S87. Tito «]imrter of a priTate eorporation is a •ontraet betweoi tko
loglslatium snu&tiiic it and the earptwatioiii aad it oaiimot be
repealed* altered, or materially modifled by tke lectslatnre
without the ooaseat of the eorporatioii*
288* Corporate ehartere, eonaidered ae eontraete exempt froia lesis*
latiTO eoatrol, are eonetmed etrietly asaiiiat the eorporatore.
280. The eharter of a eorporation may be repealed, altered or amend-
ed by the lesisl*tiire if power to do eo has been reserred ia the
eharter itself or ia a eoastitntion or statute snbjeet to whieh
the eharter was tahea*
S90. The ftraaehises of a eorporatioii laay be resmned by the state ia
the exeroise of the poorer of emiaeat domain i aad their ase aad
exereiso auiy be regulated vader the poliee power.
SOI* The ehafter of a mvaieipel eorporatioa is aot a eoatraet*
The doctrine that the charter of a private corporation is to be con-
sidered as a contract between the state and the corporation was first
established in the celebrated case of Dartmouth College v. Woodward,^*
49 Ll Bd. 831 ; Reynolds v. Qeary, 26 Oonn. 179 ; West River Bridge Go. v.
Dlx, 6 How. 5(y7p 12 L. Bd. 535 ; City of Terre Haute v. E^'aIl8yille & T. H. R.
Oa, 149 Ind. 174, 46 N. E. 77, 87 L. R. A. 189. See "Constitutional Law,*' Dec.
Dig. (Key No.) | 118; Cent. Dig. H 287, S99.
T» Henderson Bridge Go. t. Henderson, 173 U. S. 592, 19 Sup. Ot 553, 43
L. Bd. 823; Rochester R. Ck>. v. Rochester, 205 U. S. 236, 27 Sup. Ct 469, 51
L. Ed. 784 ; Lutterloh v. Fayettevllle, 149 N. O. 65. 62 B. E. 758 ; Hunter v.
Pittsburgh, 207 U. S. 161, 28 Sup. Ct 40, 52 L. Ed. 151 ; Olyphant Borough
y. Egreski, 29 Pa. Super. Ct 116 ; Chanler v. Kels^, 205 U. B. 466, 27 Sup.
Ct 560, 51 L. Ed. 882. But see In re Peirs Estate, 171 N. Y. 48^ 63 N. B. 789,
57 L. R. A. 540, 89 Ajn. St. Rep. 791. See ''Constitutional Law** Dec. Dig. (Key
No.) U 137, 158; Cent. Dig. || SOS, S54, 408-
7« 4 Wheat 518^ 4 L. Ekl. 629. And see Planters* Bank v. Sharp, 6 How.
801, 12 L. Ed. 4^; Binghamton Bridge Case, 8 Wall. 51, 18 L. Bd. 187; Far-
rington y. Tennessee, 95 U. S. 679, 24 L. Ed. 558; State y. Chicago & N. W.
K. Co., 128 Wis. 449, 106 N. W. 594. See, also, Burke v. Rector, Church War-
§§ 287-291) CHABTEB8 AS OONTRACTS. 739
wherein it appeared that the legislature of New Hampshire had under-
taken to make certain radical changes in the government of the college,
contrary to its charter and without its consent. It was decided that
the charter was a contract, that it was based upon a supposed consid-
eration of public services or public benefits, that it protected the cor-
poration in the enjoyment of all its charter rights, privileges, and
franchises against legislative interference, and that the act of the leg-
islature of New Hampshire was void as impairing the obligation of
this contract. It was soon seen that this doctrine was applicable to
business and manufacturing companies, and in fact to every species
of private corporations holding their charters under legislative grant
or general law. The protection afforded them by the doctrine of this
case is usually assigned as the cause of the enormous influence and
power of corporations in modem business and industrial life, and many
efforts have been made to escape from its sway. The Dartmouth Col-
lege Case has often been assailed with the severest criticism. And in-
deed it is probable that the decision, though it was right enough on
the particular facts, set up a general rule which is indefensible in law.
Yet it has never been directly overruled, and it still stands as the
leading authority on this branch of the subject. But the courts have
been careful to restrict the doctrine to the narrowest possible bounds,
and the legislatures of the states have generally seen the ^isdom of
retaining control over the franchises or powers of new corporations.
So far as r^^ards exemption from legislative control, charters of
incorporation are to be construed strictly against the corporators.^'
A charter will not be held to grant a monopoly, for instance, unless the
plain language requires that interpretation. Where a corporation, by
its charter, is given the right to "take" property for the construction of
its works, upon making just compensation, this does not constitute a
dens, & Vestrymen of Trinity Chnreh, 63 Misc. Rep. 48, 117 N. Y. Sui^. 255,
as to Impairing charter granted by the British crown In 1697. Though no
power is reserved to amend a charter, the state may lawfully do so where the
corporation accepts the amendment. Phinney v. Trustees of Sheppard &
Bnoch Pratt Hospital, 88 Md. 683, 42 Atl. 5& This constitutional provlsiou
does not prevent the revocation of the charter of a social club as a punishment
for violating the liquor laws. Cosmopolitan Club v. Virginia, 208 U. S. 878»
28 8up. Ct 894, 52 L. Ed. 536. See **Constitutional Law," Dec Dig. (Key No.)
U 1^, tft9; Cent. Dig. H SSZ^^IS.
ti Perrine v. Chesapeake & D. Canal Co., 9 How. 172; 13 L. Ed. 92 ; Georgia
R. & Banking Co. t. Smith, 128 U. 8. 174, 9 Sap. Ct 47, 82 L. Ed. 877. Bee
**CorporQtion$;' Dec. Dig. (Key 2fo.) ^ S7t; Cent. Dig. 1 1520.
740 LAWS IMPAIBING THB OBLIGATION OF CONTRACTS. (Ch. 21
contract with the state such as to prevent the legislature from after-
wards enacting that the company shall be liable for indirect or conse-
quential injuries to the property of private persons caused by its con-
structions or operations.'* It should also be noticed that a statutory
provision, merely authorizing the formation of a corporation in the
future, cannot become a contract, in any such sense as to be protected
by the federal constitution, until it has become vested as a right by an
actual organization under it, and then it takes effect as of that date,
and subject to such laws as may then be in force.'* Moreover, rights
or privileges granted to corporations by statute, after their incorpora-
tion, do not constitute any part of the contract embodied in the char-
ter, and consequently they may be revoked or modified by the legisla-
ture at will, unless the statute itself amounts to a charter.** And where
two corporations are consolidated, under a state statute which has the
effect of dissolving both of them and creating a new corporation, the
charter of the new company may be subject to alteration or amend-
ment by the legislature, although those of the old companies were
not so liable.**
Reservation of Power to Alter or Amend,
In granting a charter of incorporation, the state may reserve the
right to repeal, alter, or amend it. And when this is done, the repeal
or amendment of the charter is no impairment of the contract which
it embodies, but it is rather the enforcement of one of its terms. This
power may be reserved in the particular charter itself ; but it is equally
effective if the state constitution or a statute, in force when the char-
ter is granted, reserves to the legislature the right to revoke or modify
it. In the latter case, the reservation becomes a part of the contract.*^
T8 Pennsylvania R. Co. v. MUler. 132 U. S. 75, 10 Sup. Ct. 34, 33 L. Ed. 267.
See "Constitutional Loic," Dec. Dig. (Key No,) (§ 125, 129; Cent. Dig. %% $95,
409.
7» New York v. CJook. 148 U. S. 397, 13 Sup. Ot 645, 37 L. Ed. 40& An act
of the legislature continuing the charter privileges and rights of a corpora-
tion beyond the time fixed by the original act of Incorporation, does not have
the effect of creating a new charter, but merely extends the Ufe of the one
already In existence. Franklin County Oourt v. Deposit Bank of Frankfort,
87 Ky. 370, 9 S. W. 212, 10 Ky. Law Rep. 506. See "^Constitutional Law,"
Dec. Dig. (Key No.) | 129; Cent. Dig. i SOI.
BO South Carolina v. GkilUard, 101 U. S. 433, 25 K Dd. 937. See ""Constitu-
iional Lato,** Dec. Dig. (Key No.) | 121; Cent. Dig. | SIO.
•1 'Shields y. Ohio, 95 U. S. 319, 24 L. Ed. 357. See "^Constitutional Law,"
Dec. Dig. (Key No.) H 125, 129; Cent. Dig. f S69.
Bs Chesapeake & O. B. Co. ▼. MUler, 114 U. S. 176» 6 Sup. Ct 813^ 29 L. Ed.
S§ 287-291) OHABTBBS AS CONTRACTS. 741
But the exercise of this power must be reasonable, and must have re-
lation to the original nature and scope of the charter. It cannot be
employed as a means of forcing the corporation into enterprises not
contemplated by the charter, nor to take away the property of the
corporation or destroy its value, nor to impose unjust burdens upon
it, nor to deprive it of rights not granted by the charter, nor, generally,
to withdraw from it the protection and benefit of any constituticmal
guaranties.** Neither can the lawful rights of the stockholders as
between themselves be thus altered,** though the regulation of such in-
ternal affairs of the corporation as the election of directors or trus-
tees is not beyond the scope of proper legislative interference in these
cases.**
Reserved Right of Eminent Domain and Police Power.
Rights, privileges, or franchises granted to a corporation by its
charter may be resumed by the state, when the exigencies of the pub-
lic require it, under the power of eminent domain, upon the payment
of due compensation.**
And notwithstanding the protection afforded to charter rights and
privileges by the doctrine under consideration, a corporation, like any
individual, is subject to regulation, by legislative authority, to the end
that the use of its franchises or property may not endanger the public
121 ; stone y. Wisconsin, 94 U. Sk 181, 24 L. Ed. 102 ; Suydam v. Moore, 8
Barb. (N. Y.) 858 ; Hinckley v. Schwarzschild & Sulzberger Co., 107 App. Dlv.
470, 05 N. Y. Supp. 357 ; City of Covington v. Kentucky, 173 U. S. 231, 19 Sup.
Ct. 383, 43 L. Ed. 679. Bee "OonatUutional Law,'* Deo, Dig. (Key No,) i 126;
Cent, Dig. i S67.
B« City of VicksbuTg v. Vicksburg Waterworks Co., 202 U. S. 453, 26 Sup.
Ct 660, 50 L. Bd. 1102; Steams y. Minnesota, 179 U. S. 223, 21 Sup. Ct. 73,
46 L. Ed. 162 ; Dulutb & I. R. R. Co. y. St. Touis County, 179 U. 8. 302, 21
Sup. Ct. 124, 45 Ll Ed. 201 ; New York & N. E. R. Co. v. Bristol, 151 U. S.
556, 14 Sup. Ct. 437, 38 L. Ed. 269 ; McKee y. Chautauqua Assembly, 130 Fed.
536, 65 C. C. A. 8; Southern Pac. Co. y. Board of Railroad Com'rs (C. C.) 78
Fed. 236 ; City of Detroit y. Detroit A H. P. Road Co., 48 Mich. 140, 5 N. W.
275 ; Lewis y. Northern Pac. R. Co., 36 Mont 207, 92 Paa 469. See ^^ConstUu-
tional Law,'* Dec. Dig. (Key No.) || 125, 126, 129; Cent. Dig. ft 962^418.
84 In re Newark Library Ass'n, 64 N. J. Law, 217, 43 AU. 435 ; Garey y. St
Joe Mining Co., 32 Utah, 497, 91 Pac. 369, 12 L. R. A. (N. S.) 554. See "Con-
stitutional Law,** Dec Dig. (Key No.) H 125, 126; Cent. Dig. U S25, S62-41S.
•B Looker y. Maynard, 179 U. S. 46, 21 Sup. Ct 21, 45 L. Ed. 79; McKee
y. Chautauqua Assembly, 130 Fed. 536, 65 C. C A. & See *Vontii*uiional
Law,** Dec. Dig. (Key No.) | 126; Cent. Dig. U 585, 866-^69.
•• West Riyer Bridge Co. y. Dix, 6 How. 507, 12 L. Bd. 535. See ^'OonetUn-
tioma Law,'* Deo, Dig. (Key No.) i 118; Ceni. Dig. U 287, 898.
742 LAWS IMPAIRING THE OBLIGATION OF CONTRACTS. (Ch. 21
health, safety, or comfort, or be made the means of oppression or fraud.
That is, it is subject to r^^lation under the police power.*^
Regulation of Tolls and Charges.
Where the state or a municipal corporation, by a charter or a general
law or ordinance, has granted to a railroad company, or a gas or water
company or other public-service corporation, the right to fix its own
rates of toll or charges, or to maintain certain fixed rates, this consti-
tutes a contract, which cannot lawfully be impaired by any subsequent
attempt on the part of the public authorities to regulate or reduce the
rates.' • Even where no such specific contract has been entered into,
it is implied in the company's charter that it shall be allowed to con-
•1 Boston Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. B)d. d89 ; Munn y.
lUinolai 94 U. S. 113, 24 L. Ed. 77; New Orleans Gaslight Co. v. Louisiana
Light & Heat Producing & Mfg. Oo., 115 U. S. 650, 6 Sup. Ct. 252, 29 L. Ed.
616 ; Stone v. Farmers' Loan & Trust Co., 116 U. S. 307, 6 Sup. Ct. 334, 29 L.
Ed. 639 ; People ▼. Illinois Cent. R. Co., 235 111. 374, 85 N. E. 606, 18 L. R. A.
(N. S.) 916 ; McCarter v. Hudson County Water Co., 70 N. J. Eq. 525, 61 Atl.
710. See '^Constitutional Laic," Dec. Dig. (Key No.) | 117; Cent. Dig. H 286,
S92.
«« City of CHeveland ▼. Cleveland City Ry. Co., 194 U. S. 517, 24 Sup. Ct
756, 48 L. Ed. 1102 ; City of Detroit v. Detroit Citizens' St R. Co., 184 U. S.
368, 22 Sup. Ct 410, 46 L. E)d. 592 ; City of Los Angeles y. Los Angeles City
Water Co., 177 U. S..568, 20 Sup. Ct 736, 44 L. Ed. 886; Omaha Water Co. v.
Omaha, 147 Fed. 1, 77 C. C. A. 267, 12 L. R. A. (N. S.) 736 ; Bali v. Rutland R.
Co. (C. 0.) 93 Fed. 613 ; City of Indianapolis y. Central Trust Co.. 83 Fed. 529,
27 C. C. A. 580; City of Rusfaville v. Rushville Natural Gas Co., 164 Ind. 162, 73
N. B. 87 ; Shreveport Traction Co. v. Shreveport, 122 La. 1, 47 South. 40 ; Opin-
ion of Justices, 190 Mass. 605, 77 N. E. 1C38 ; Plngree v. Michigan Cent R. Co.,
118 Mich. 314, 76 N. W. 635, 53 L. R. A. 274 ; Gulf & S. I. R. Co. v. Adams,
90 Miss. 659, 45 South. 91. But compare Laurel Fork & S. H. R. Co. y. West
Virginia Transp. Co., 25 W. Va. 324, where It is said that the right to regulate
the charges of railroad companies for transportation is one of the powers of
the state, inherent In every sovereignty, to be exercised by the legislature from
time to time at its pleasure; and hence one legislature cannot by a charter
granted to a railroad company, though for a valuable consideration, confer on
such company a right to charge rates for transportation which shall be be-
yond the control df subsequent legislatures. And see Dillon v. Erie It Co..
19 Misc. Rep. 116, 43 N. Y. Supp. 320, holding that the grant to a railroad
company to fix its charges is subject to the common-law rule that such charges
must be reasonable, and the legislature has the power to declare what Is a
reasonable charge. And see also City of Knoxvllle v. Knoxville Water Co., 107
Tenn. 647, 64 S. W. 1075, 61 L. R. A. 888 (affirmed, Knoxville Water Co. v.
Knoxville, 189 U. S. 434, 23 Sup. Ct 531, 47 L. Ed. 887), where it Is pointed
out that a dty, in the absence of express legislative authorization, cannot bind
Itself by a contract with a water company to fix Irrevocably the charges to be
§§ 287-291) CHARTEB8 AS 0ONTBA0T8. 743
duct its business at a fair profit; and hence a law or ordinance re-
ducing its charges to an unreasonably low figure is unconstitutional.'*
Regulation of Foreign Corporations.
Where a state offers to foreign corporations the privilege of doing
business within its limits on certain conditions, as to taxation or other-
wise, and on complying with certain requisites, a foreign corporation
which accepts the conditions and complies with the requirements of
the law acquires a contract right to engage in and continue its busi-
ness within the state, of which it cannot be arbitrarily deprived,**
though it appears that this will not prevent the state from imposing
additional burdens or conditions on the right to continue the business.*^
Charters of Municipal Corporations.
The charter of a municipal corporation is not a contract within the
meaning of this clause of the constitution. It is a grant or delegation
of governmental powers, for public purposes, to a subordinate agency
of government. All rights, powers, privileges, and franchises granted
to such corporations are held subject to legislative modification or re-
call. And therefore a statute revoking or changing the public powers
or rights of a municipality, altering its boundaries, or modifying its
government, does not impair the obligation of any contract.** And on
made by the latter. See ^'Constitutional Law,** Deo. Dig. (Key No.) | 1S5;
Cent. Dig. {| S80-S87.
s» People's Gaslight & Coke Co. v. Chicago (C. C.) 114 Fed. BSi (affirmed IM
U. S. 1, 24 SujK Ct 520, 48 L. Ed. 851) ; Beardsley v. New York, L. B. & W.
IL Co., 162 N. Y. 230, 56 N. EL 488; Rlchman-y. Consolidated Gas Co., 114
App. Div. 216, 100 N. Y. Supp. 81. See "Constitutional Laic,'* Dec. Dig. (Key
No.) i 195; Cent. Dig. H $80-^87.
•0 American Smelting Co. v. Colorado, 204 U. S. 103, 27 Sup. Ct. 108, 51 L.
Ed. 393; Chicago, R. I. ft P. R. Co. v. Swanger (C. C.) 157 Fed. 783; Chicago,
R. I. & P. R. Co. Y. Ladwig (C. C.) 156 Fed. 152 ; Seaboard Air Line R. Go. y.
Railroad Commission of Alabama (C. 0.) 155 Fed. 702. See "Constitutional
Law,** Deo. Dig. (Key No.) | ISO: Cent. Dig. i SOI,
•1 British American Mortg. Co. y. Jones, 77 S. C. 443, 58 S. B. 417 ; Con-
necticut Mut Life Ins. Co. y. Spratley, 172 U. S. 002, 10 Sup. Ct. 308, 43 L. Ed.
669; Sandel y. Atlanta Life Ins. Co., 53 S. C. 241, 31 S. E. 230; Blue Jacket
Consol. Copper Oo. y. Scherr, 50 W. Ya. 533, 40 S. E. 514 ; Ivy y. Western
Union Tel. Co. (C. C.) 165 Fed. 371. Bee "Constitutional Law,** Dec. Dig, (Key
No.) II 129, ISO; Cent. Dig. { SOI.
•s Dartmouth College y. Woodward, 4 Wheat 518, 4 L. Ed. 629 ; Crook y.
People, 106 111. 237 ; Demarest y. City of New York, 74 N. Y. 161 ; City of
Philadelphia y. Fox, 64 Pa. 169 ; Town of Marietta y. Fearing, 4 Ohio, 427 ;
WatBon Seminary y. Pike County Court, 149 Mo. 57, 50 S. W. 880. 45 L. R. A.
675 ; Mannie y. Hatfield (S. D.) U8 N. W. 817 ; State y. ItYine, 14 Wyo. 818^
744 LAWS IMPAIRING THE OBLIGATION OF CONTRACTS. (Ch. 21
the same principle, legislative grants to municipal corporations, which
do not pertain to the functions of government, but to the convenience
or business advantages of the community, are not protected from subse-
quent revocation by this constitutional provision, as they would be if
granted to private persons or corporations. The charters of some of
our most ancient cities were granted by the crown of Great Britain
before the separation of the colonies. But this circumstance gives
them no peculiar sanctity. They are as much under the control of the
legislature of the state as are municipal charters granted by that legis-
lature itself. ••
>^^>i.
[OH FBOM TAXATIOH.
202. A lesiilatiTO tpnait of exemption from tautioB will eonstitute
a oontraet witli tho sraatee which oaiiAot be impaired by eab-
■equent legislatlTe aetioa*
203. But sneh a contraot of ezemptioiip-
(a) Mast be made oat by elear and anambisaoas terms, amd eaaaot
be presamedi and
(b) Mast be f onnded on a consideration morins to the pablio.
It is well settled that the legislature of a state may agree, by an
explicit grant founded upon a consideration, to exempt specified prop-
erty from taxation, either for a limited period or indefinitely, or that
taxation of the property in question shall be had only on a certain
basis, and not otherwise, or shall not exceed a certain rate; and this
will constitute a contract with the grantee which succeeding legisla-
tures may not impair by imposing taxes contrary to the grant.**
84 Pac. 90 (affirmed 206 U. S. 278, 27 Sup. Ct 613, 61 L. Ed- 1008) ; City of
Covington ▼. Kentucky, 173 U. 8, 231. 19 Sup. Ct 383, 43 Ia Ed. 679. See
"Constitutional Law," Dec Dig, (Key No.) f 127; Cent. Dig. H ^5-^U»
•» Demarest ▼. City of New York, 74 N. Y. 161. See ^^Constitutional Law,**
Dec. Dig. (Key No.) i 127; Cent. Dig. §§ S25-SU.
»4New Jersey v. Wilson, 7 Cranch, 164, 3 L. Bd. 303; Pacific R. Co. ▼.
Magulre, 20 WaU. 36, 22 L. Ed. 282 ; Northwestern University v. Illinois, 99
U. S. 309, 25 L. Ed- 387; New Jersey v. Yard, 95 U. S. 104, 24 L. Ed. 352;
Gordon v. Appeal Tax Court, 3 How. 133, 11 L. Ed. 529 ; Farrington v. Ten-
nessee, 95 U. S. 679, 24 'Ia SXl. 558 ; Plqua Branch of State Bank v. Knoop,
16 How. 869, 14 L. Ed. 977 ; Wilmington & W. R. Co. v. Reid, 13 Wall. 264,
20 L. Ed. 568; City of New Orleans v. Houston, 119 U. S. 265, 7 Sup. Ct 198,
30 li. £3d. 411 ; Yazoo & M. V. R. Co. v. Thoma«, 132 U. Si 174, 10 Sup. Ct 68,
83 L. Ed. 802 ; Powers v. Detroit, G. H. & M. R. Co., 201 U. S. 543, 28 Sup. Ct
556, 50 Lk Ed. 860; Henderson Bridge Co. ▼. Henderson, 173 U. S. 692» 19 Sup.
§§ 292-293) BXBMPTION FROM TAXATION. 745
But a contract to exempt property from taxation will never be pre-
stimed. On the contrary, the presumption is always strongly against
the intention of the legislature to surrender this important power, or
to restrict or limit it in any way. All doubts will be resolved against
the exemption claimed. Nothing but the clearest and plainest terms,
manifesting such an intention, will be sufficient to establish a contract
relieving property from its due share of the public burdens.** And
furthermore, a grant of this special privilege must be founded upon
a consideration, such as the imposition of some further burden or
public duty upon the recipient of the grant, or the payment of a bonus
or commutation to the state, or the surrender of some right or fran-
chise previously held. If there is no such consideration, the grant
of exemption is a mere act of grace or favor and is revocable at will.**
And if it appears that the exemption was made without any consider-
ation moving to the public, as is usually the case with the exemption of
the property of religious societies and charitable institutions, then there
is nothing to prevent its repeal at any time, for there is no contract to
stand in the way.*^
Ot 663, 43 L. Bd. 823 ; State v. Alabama Bible Soc., 134 Ala. 632, 82 South.
1011 ; Gulf & S. I. R. Co. v. Adams, 00 Miss. 559, 45 South. 91 ; "State ▼. Board
of Trustees of Westminster College, 175 Mo. 62. 74 S. W. 990 ; Lake Drum-
mond Canal & Water Co. v. Com., 103 Va. 337, 49 S. E. 506, 68 L. R. A. 92.
But legislative power to alter or amend corporate charters, whether reserved
In the state constitution or in a general law, includes the right to repeal a
provi8i<m in such a charter exempting the property of the corporation from
taxation. People v. Oass, 190 N. Y. 323, 83 N. EL 64, 123 Am. St Rep. 549 ;
People V. Raymond, 126 Ai^. Dlv. 720, 111 N. Y. Supp. 177. And although
particular property may be exempt from taxation, yet. there is no constitu-
tional objection on this ground to a transfer or succession tax, as this is not
a tax on the property, but a charge on a privilege exercised or enjoyed under
the laws of the state. Orr v. Gllman, 183 U. S. 278, 22 Sup. Ct 213. 46 L. Ed.
106. See ^Vansiitutiatua Law;* Dec. Dig. (Key No.) | 1S8; Cent. Dig. H SOi.
408-
tB Oilman v. City of Sheboygan, 2 Blade, 510, 17 L. Ed. 305 ; Providence
Bank v. Billings, 4 Pet 514, 7 Ia Ed. 939; Delaware Railroad Tax, 18 Wall.
206, 21 L. Ed. 888 ; City of St Louis v. United Rys. Co., 210 U. S. 266, 28 Sup.
Ct 630, 52 L. Ed. 1054. See "Constitutional Law,'' Dec. Dig. (Key No.) | 1S8;
Cent. Dig. U SOS, 408; '^Taxation,** Dec. Dig. (Key No.) H 20S, 204; Cent.
Dig. I S22.
•• Christ Church v. Philadelphia County, 24 How. 300, 16 L. Bd. 602 ; Homf
of the Friendless v. Rouse, 8 Wall. 430, 10 L. Ed. 495 ; Tueker v. Ferguson,
22 Wall. 527, 22 L. Ed. 805. See ''Constitutional Lww,** Dee. Dig. (Key No.) |
ISS; Cent. Dig. U SOS, 408.
•T East Saginaw Salt Mfg. Co. t. East Saginaw, 18 Wall. 873, 20 L. Bd. 611 ;
746 LAWS IHPAIBINO THE OBUOATION OV CONTRACTS. (Ch. 21
I^WS AFFEOTIirO RBMKDflMI OH OONTRAOTS.
204. Tkere is a dlstlaotlon betweem tk» oUlsatiini of a oontraot mnd
th9 remedy for its mf oreemomt. WluiteTor portalao atovely
to tho romody may be oluuncod or modiflod, at tho dlMretioa
of tho loslslAtmro, wltliout impalrinc tho oUlsiitioii of tlie
eo&traot, provided tlie remedy be not wholly taken away nor
■o hampered or rednoed in effeotiTeneM ae to render the eon-
traet praotieally inoapaUe of enforoement«»B
The remedy cannot be wholly abolished or denied to the parties.
For to withdraw all legal means of enforcing a contract, or obtaining
satisfaction for a breach of its terms, is to withdraw that sanction of
the law which constitutes a part of the obligation of the contract. The
state is bound to provide a remedy for such cases. But it is not of
the obligation of the contract that the remedy shall remain the same
as it was when the contract was made.** In particular, a contract can-
not be said to be impaired by a change in the law which makes the
remedy for its enforcement more efficient or more easy of applica-
Home Ins. Co. ▼. Augusta, G3 U. S. 116, 23 L. Ed. 825 ; In re dty of New
Tork, 11 Johns. (N. Y.) 77; Broadway Baptist Church v. McAtee, 8 Bush,
506, 8 Am. Rep. 480; Manistee ft N. E. R. Co. ▼. Commissioner of Railroads,
118 Midi. 349, 76 N. W. 633 ; Hanover Tp. v. Camp Meeting Ass^n (N. J. Sup.)
68 Atl. 753. See **OoMtitutional Law,'* Dec. Dig. (Key No.) { 1S8; Cent. Dig.
§i SOS, i08'
•8 McFaddin v. E}yan8^Snider-Buel Co., 185 U. S. 505, 22 Sup. Ct 758, 46 Ll
Ed. 1012 ; Knickerbodcer Trust Co. ▼. Cremen (C. C) 140 Fed. 973 ; Harrison
V. Remington Paper Co., 140 Fed. 385, 72 C. C. A. 405, 8 L. R. A. (N. S.) 954 ;
City of Cleveland v. United States, 166 Fed. 677, 93 C. C. A. 274; Kendall v.
Fader, 99 111. App. 104 ; State v. Helms, 136 Ind. 122, 35 N. E. 893 ; Good-
bub V. Estate of Hornuug, 127 Ind. 181, 26 N. E. 770; Webb v. Moore, 25 Ind.
4; Weller v. Wheelock, 118 Mich. 698, 118 N. W. 609; Mnirhead v. Sands,
111 Mich. 487, 69 N. W. 826; Brown v. Kalamazoo Circuit Judge, 75 Mich.
274. 42 N. W. 827, 5 L. R. A. 226, 13 Am. St Rep. 438 ; State v. Krahmer, 105
Minn. 422, 317 N. W. 780, 21 L. R. A. (N. S.) 157; State v. Hager. 91 Mo. 452,
3 S. W. 8i4 ; Blakemore v. Cooper, 15 N. D. 5, 106 N. W. 566, 4 L. R. A. (N. S.)
1074, 125 Am. St Rep. 574 ; Klrkman v. Bird, 22 Utah, 100, 61 Pacl 338. 58
L. R. A. 669, 83 Am. St Rep. 774 ; Flagg v. Lodce, 74 Vt 320, 52 AtL 424 ;
Second Ward Sav. Bank v. Schranck, 97 Wis. 250, 73 N. W. 31, 39 L. R. A. 569.
See *Vonstitutionai Law,'* Dec. Dig. (Keu No.) {| 1S9, 166-185; Cent. Dig. §§
474-525.
•• Gantly v. Ewlng, 3 How. 707, 11 L. Ed. 794 ; Antoni v. Greenhow, 107 U.
S. 769, 2 Sup. Ct 91, 27 L. Bd. 468 ; Baltzer v. North Carolina, 161 U. S. 240,
16 Sup. Ct 500, 40 li. Ed. 684. See **Con8titutional Law;* Deo. Dig. (Key No.)
SI 166-185; Cent. Dig. If 474-^25.
§ 294) LAWS AFFECrriNO REMEDIES ON CONTRACTS. 747
tion.*** And as a general rule modifications in the statutory law of
evidence pertain to the remedy merely, not to the substance of the
contract, and are not objectionable on this ground.^^^ But if the
parties to a contract include in it, in express terms, the remedy to be
sought upon its breach, or the means to be used for securing its
performance, subsequent legislation changing the remedial process
they have agreed upon is, as to them, inoperative.*** Statutory liens
are generally regarded as merely a part of the remedy, and may be
created or displaced without impairing the obligation of any con-
tract.*®* But a statute taking away the right to use the process of
garnishment, except in cases where the creditor will swear that the
debt was for food or house rent, cannot be applied to debts contracted
before its passage and where exemptions were waived.*** But the
repeal of a usury law, operating retrospectively upon contracts pre-
viously made, and which, at the time, would have been voidable for
usury, cannot be said to impair their obligation.***
#
100 Bemheimer ▼. Convene, 206 U. 9. 516» 27 Sup. Ct 756, 51 L. Ed. 1163 ;
Henley ▼. Myers, 76 Kan. 723, 03 Pac. 168, 17 L. R. A. (N. S.) 779 ; Bryson t.
McCreary, 102 Ind. 1, 1 N. B. 55 ; Converse v. iBtna Nat Bank, 79 Conn. 163,
64 Atl. 341 ; Red River Valley Nat. Bank v. Craig, 181 U. S. 548, 21 Sup. Ct
703, 45 L. Ed« 994. See ''Constitutional Law,** Deo. Dig. (Key No.) | 169;
Cent. Dig. ff 4H-^25.
101 Wilson V. Isemlnger, 185 U. S. 55, 22 Sup. Ct 573, 46 U Ed. 804; Hun-
Eiker V. Supreme Lodge K. P., 117 Ky. 418, 78 S. W. 201, 25 Ky. Law Rep.
1510 : O'Bryan v. Allen, 108 Mo. 227, 18 S. W. 892, 32 Am. St Rep. 595 ; Har-
ris V. Harsch, 29 Or. 562, 46 Pac. 141. But legislation which effects unreason-
able changes in the rules of evidence for the enforcement of existing contracts
may impair their obligation. Davis v. Supreme Lodge, Knights of Honor, 165
N. Y. 159, 58 N. B. 891. See '"Constitutional Law,** Dec. Dig. (Key No.) f 175;
Cent. Dig. f§ 519, 520.
los International Building ft Loan ABS*n v. Hardy, 86 Tex. 610, 26 S. W. 497,
24 L. R. A. 284, 40 Am. St Rep. 870; Weist v. Wuller, 210 Pa. 143, 59 Atl.
820. See "Constitutional Law,** Dec. Dig. (Key No.) | 169; Cent. Dig. fS 4H-
525.
lot Wilson V. Simon, 91 Md. 1, 45 Atl. 1022, 80 Am. St Rep. 427; Phelan v.
Terry, 101 Minn. 454, 112 N. W. 872. But see Davidson v. Richardnon, 50 Or.
323, 91 Pac. 1060, 17 L. R. A. (N. S.) 319, 126 Am. St Rep. 738. See "Constitu-
tional Law,** Dec. Dig. (Key No.) | 161; Cent. Dig. fS 494, 495.
104 Adams v. Creen, 100 Ala. 218, 14 South. 54. See "Constitutional Law,**
Dec. Dig. (Key No.) f 180; Cent. Dig. 81 498^00.
lOft Ewell \. Daggs, 108 U. S. 143, 2 Sup. Ct 408, 27 L. Ed. 682; Petterson
T. Berry, 125 Fed. 902, 60 C. a A. 610; Barclift v. Fields, 146 Ala. 264, 41
South. 84. See "Constitutional Law,** Dec Dig. (Key No.) | 159; Cent. Dig.
748 LAWS IMPAIRING THB OBLIGATION OF CONTRACTS. (Ch. 21
Bankruptcy or insolvency laws may be passed by the states, au-
thorizing the discharge of debtors from their obligations and liabilities
on just and reasonable terms. But these laws are subject to three im-
portant limitations. First, there must be no national bankrupt law in
existence at the time, for such a law suspends all state laws on the same
subject while it continues in force. Second, state laws of this kind
cannot apply to citizens of other states having claims against the
debtor, for the state has no jurisdiction over them. Third, such laws
cannot apply to contracts entered into before their enactment, for that
would impair their obligation.*®*
The legislature may enact new or different statutes of limitation,
prescribing the period within which actions on contracts must be
brought, and may make them applicable to existing contracts, pro-
vided the remedy of the creditor is not thereby taken away or unrea-
sonably restricted. That is to say, a statute of limitations cutting off
all remedy on a particular contract, by prescribing a period which, as
to that contract, had already expired, would be unconstitutional. But
if it leaves a reasonable time to the creditor to begin his proceedings,
he cannot complain, although the time is less than it would have been
if the former statute had remained in force.**' And conversely a debt-
or cannot be said to have any vested or contractual right in the benefit
of a statute of limitations until it has fully and completely run against
the claim, and hence, before that time, it may be enlarged or extended
without impairing his rights.**"
loe Ogden v. Saunders, 12 Wheat. 213, 6 L. Ed. 606 ; Baldwin y. Hale, 1
Wall. 223, 17 L. Ed. 531 ; Union Bank of St Paul v. Rugg, 78 Minn. 256, 80
N. W. 1121. As to the national bankruptcy law, see In re Rhoads (D. C.) 98
Fed. 399. See *'Cowtitutional Law,'' Dec, Dig, (Key No.) § 16S; Cent. Dig. H
lOT Bell V. Morrison, 1 Pet. 351, 7 L. Ed. 174; Sturges v. Crowniushield, 4
Wheat. 122. 4 L. Ed. 529; Mitchell v. Clark, 110 U. S. 633, 4 Sup. Ct. 170.
312, 28 L. Ed. 279 ; Vance v. Vance, 108 U. S. 514. 2 Sup. Ct. 854, 27 L. Ed.
808 ; Lamb v. Powder River Live Stock Co., 132 Fed. 434, 65 C. C. A. 570, 67
L. R. A. 558 ; Wooster v. Bateman, 126 Iowa, 552, 102 N. W. 521 ; Cranor ▼.
School Dist. No. 2, 151 Mo. 119, 52 S. W. 232 ; Osbom v. Jaines^ 17 Wis. 573.
But compare Close v. Potter, 155 N. Y. 145, 49 N. E. 686. And see Bettman
V. Cowley, 19 Wash. 207, 53 Pac. 53, 40 L. R. A. 615. See ** Constitutional
Lata,'' Dec. Dig. (Key No.) {{ 170, 171; Cent. Dig. §| 50S-510.
losDoehla v. Phillips, 151 Cal. 488, 91 Pac. 330; Tennessee Coal, Iron ft
R. Co. v. McDowell, 100 Tenn. 565, 47 S. W. 153 ; Cole v. Van Ostrand, 131
Wis. 454, 110 N. W. 884. See ^'Constitutional Law," Dec. Dig. (Key No.) |f
170, 171; Cent. Dig. |f 503-510.
§ 294) LAWS AFFBOTINO BBMEDIBS ON CONTRACTS. 749
A law granting exemptions from execution where none before ex-
isted, or increasing the exemption already granted, may apply to the
enforcement of contracts made before its enactment if the increase
of the exemption is not unreasonable. But if it is so great as to make
the creditor's remedy of no value, or seriously to impair his prospect
of making a collection, then it interferes with the obligation of such
contracts, and, as to them, is invalid.*** For instance, a statute pro-
viding that the proceeds of life-insurance policies shall not be liable for
the debts of the decedent would be void as to debts already con-
tracted."*
The "betterment acts," allowing to defendants in ejectment the
present value of improvements made by them upon the land in good
faith, deducting the amount reasonably due for use and occupation,
do not impair the obligation of contracts."* But a statute which
undertakes to make a lien for seed grain superior to the lien of a
mortgage executed before the statute was enacted is repugnant to this
clause of the constitution, and therefore void.***
A statute providing that property shall not be sold on execution or
foreclosure of a mortgage, unless it will bring one-half or two-thirds
of the value put upon it by appraisers, is invalid in respect to con-
tracts made before its passage which could have been enforced, by
the law at the time they were made, by a judgment and the seizure
and sale of property to satisfy it. For such a law though professing
109 Edwards v. Kearzey, 96 U. S. 595, 24 L. Ed. 793 ; Foster ▼. Byrne, 76
Iowa. 295, 35 N. W. 513 ; Wlllard v. Sturm, 96 Iowa, 555. 65 N. W. 847 ; Dunn
T. Stevens, 62 Minn. 380, 64 N. W. 924; Patton v. City of Ashevllle, 109 N.
O. 685, 14 S. E. 92 ; Penrose ▼. Erie Canal Co., 56 Pa. 46, 93 Am. Dec. 778 ;
Richardson ▼. Kaufman, 143 Ala. 243, 89 South. 368; Blouln v. Ledet, 100
La. 709. 33 South. 741; Berry v. E^lng, 91 Mo. 395. 3 S. W. 877; Myers v.
Moran, 113 App. DIy. 427, 99 N. T. Supp. 269; Folsom t. Asper, 25 Utah, 290,
71 Pac. 315. See **CoMtitutional Late," Dec. Dig. (Key No.) | 180; Cent. ^ig.
If m-soo.
iioRlce ▼. Smith, 72 Miss. 42, 16 South. 417; In re Hellbron's Estate, 14
Wash. 536, 45 Pac. 153, 35 Li R. A. 602 ; Skinner r. Holt, 9 S. D. 427, 69 N.
W. 595, 62 Am. St. Rep. 878. Bee '*Con8tiiutional Law,** Deo. Dig. (Key N<k)
1 180; Cent. Dig. || Jk98-^00.
iiiGrlswold V. Bragg (C. C.) 48 Fed. 519; Oahlll ▼. Benson, 19 Tex. Civ.
App. 30, 46 S. W. 88a See ^'Constitutional Law,** Dec Dig. (Key No.) 8 160;
Cent. Dig. | U6.
ii« Yeatman y. Foster CJounty, 2 N. D. 421, 51 N. W. 721, 33 Am. St Rep.
797. See '^ConstUutional Lo/wi* Dec Dig. (Key No.) | 161; Oen$. Dig. ff 494,
49S.
750 I«AW8 IMPAIBINO THE OBLIGATION OF COMTBACT& (Ch. 21
to act only on the remedy, really withdraws from the creditor the eflFec-
tive means of enforcing it upon the basis of which he may be sup-
posed to have made the contract.**"
A statute giving the right to redeem from mortgage foreclosure
sales, or from sales on execution or other judicial process, where no
such right before existed, or where such right was expressly waived,
or extending the time allowed therefor, cannot constitutionally apply
to existing mortgage contracts or to sales made before its passage.***
But a statute which reduces the rate of interest which redemptioners
from mortgage foreclosure sales are required to pay to 8 per cent, is
not a violation of the obligation of a contract as to a mortgagee whose
mortgage was executed at a time when redemptioners were required
to pay 10 per cent, interest. The reason is that such a statute does not
diminish the duty of the mortgagor to pay what he agreed to pay, nor
shorten the period of payment, nor affect any remedy which the mort-
gagee had, by existing law, for the enforcement of his contract.**'
The legislature cannot constitutionally deprive municipal corpora-
tions of the power of taxation, in such a manner or to such an extent
as to leave them without the means of raising money for the payment
of existing debts, which were contracted at a time when they pos-
sessed the power to levy taxes and on the faith of the continuance of
such power. To do so would be to impair the obligation of the con-
tracts out of which the debts arose, by abolishing the means of their
enforcement.*** Thus, when municipal bonds are taken by the holders
11* McCracken ▼. Hayward, 2 How. 606, 11 L. Ed. 897; Gantly ▼. EwiDg, 8
How. 707, 11 L. Ed. 794 ; Swinburne v. MUls, 17 Wash. 611, 60 Pac. 489. 61
Am. St. Rep. 932. And see a%omp8on v. Cobb, 95 Tex. 140, 65 S. W. 1090, 93
Am. St. Rep. 820; Bradley v. Liirhtcap, 195 U. S. 1, 24 Sup. Ct. 748» 49 L. Ed.
65. See "ConstitutioMl Law," Deo. Dig. (Key No.) f| 169, 110, 181, 182;
Cent. Dig. f| 474-^25.
114 Bamltz y. Beverly, 16H U. S. 118^ 16 Sup. Ct 1042, 41 L. Ed. 93; State
V. BradBhaw, 39 Fla. 187, 22 South. 296 ; HuU v. State, 29 Fla. 79, 11 Soutb.
97, 16 L. R. A. 806» 80 Am. St Rep. 95 ; Watklns v. Glenn, 55 Kan. 417. 40
Fac. 316; Paris v. Nordburg, 6 Kan. App. 260, 51 Pac 799; State y. Sears^
29 Or. 580, 46 Pac. 785, 54 Am. St Rep. 808 ; State v. Fylpaa, 3 S. D. 586, 54
N. W. 599. See ^^Constitutional Law,*' Dec Dig. (Key No.) || 1S9, 18S; Cent.
Dig. §S 915, 501.
115 Connecticut Mut Life Infi. Co. t. Cushman, 108 U. S. 51, 2 Sup. Ct 236^
27 L. Ed. 648 ; Robertson y. Van Cleave, 129 Ind. 217, 26 N. E. 899, 15 L. R.
A. 68; Hooker v. Burr, 194 U. S. 415, 24 Sup. Ct 706, 48 L. Ed. 1046. Bee
*Von9titutional Law,** Dec. Dig. (Key No.) 8| 155, 188; Cent. Dig. || 445, 501.
!!• Yon Hoffman ▼. City of Quiccy, 4 Wall. 535, 18 L. Ed. 403; In re Cop*
i 294) LAWS AFFBCTINQ BBMBDIES ON GONTKAGT8. 761
on the faith of a promise to levy an annual tax to pay the interest on
them, this constitutes a part of the contract; and the municipality
cannot lawfully be deprived of the power to levy such taxes." ^
eDhaver (C. G.) 64 Fed. 060; McCless y. Meekins, 117 N. O. 34, 23 S. B. 99.
See **Con8Ututional Law,** Dec Dig. (Key No.) ff irt, 197; Cent. Dig. || ^^7,
iiT Louisiana t. PUsbnry, 105 U. S. 276^ 26 L. Ed. 1090; Port of Mobile v.
Watson, 116 U. S. 289, 6 Sup. Ct 896, 29 L. B». 620. See 'VonBtUutional
Low,** Dec. Dig. (Key No.) || 127, 1S7; Cent. Dig. || SS7, S54.
762 BBTBOACTIYB LAWS. (Ch. 22
CHAFTEBXXn.
BETrBOAOnVB LAWa
296. Validity of Retroactive Statutes.
296. Betroactiye Effect Avoided by CkMistractlon.
297. Caratlve Statutes.
296. Statutes Curing Admlnistratlye Action.
290. Curing Defective Judicial Proceedings.
VAZJBITT OF RETROACTIVE STATUTES.
Stt6. RetroaotiTe laws aire &ot vnoonstitntioiial, valess they are in the
I aatmre of ez post^aoto laws or bills of attainder, or unless they
I ia&pair the obligation of eontraots^ or divest vested rights, or
\ j unless they are 'lipeoilloally forbidden by the oonstitntion of
! the partiovlar state.
A retroactive (or retrospective) law is one which looks backward
or contemplates the past ; one which is made to affect acts or transac-
tions occurring before it came into effect, or rights already accrued,
and which imparts to them characteristics, or ascribes to them effects,
which were not inherent in their nature in the contemplation of the
law as it stood at the time of their occurrence.* Bills of attainder and
ex post facto laws are both included in this class. A bill of attainder
or an ex post facto law is always retroactive; but not all retroactive
laws are bills of attainder or ex post facto laws. The latter terms, as
we have already seen, relate only to the imposition of pains or pen-
alties or the conduct of criminal trials. Again, all laws which impair
the obligations of contracts are retroactive. For if they related only
to future contracts, they could not be said to have this effect, because
1 Society for Propagation of the Gospel v. Wheeler, 2 Gall. 105, 139, Fed.
Cas. No. 13,156. A constitutional prohibition against the enactment of laws
retrospective in their operation refers to such as relate to civil rights and
proceedings in civil cases. Gladney v. Sydnor, 172 Mo. 318, 72 S. W. 554, 60
L. R. A. 880, 95 Am. St Rep. 617. A statute cannot be said to be retrospec-
tive, though it acts upon past transactions or an existing state of facts, if it
gives to persons concerned an opportunity to comply with its directions before
its penalties attach. Hickman v. Preferred Tontine M^^antlle Co., 184 Mo.
160. 82 S. W. 1075. See **Con8titutional Law," Dec. Dig. (Key No.) §f 18e-203;
Cent. Dig. |f 52&-S90.
8 295) TALXDirr of RETBOAonrB statutss. 758
contracts are made with reference to existing laws. Laws which
have the effect of divesting vested rights are also of this character;
for the phrase "vested right" implies something settled or accrued in
the past, on which the new statute is to operate.* There are also nu-
merous classes of retroactive laws which are constitutionally objection-
able for the reason that they exceed the powers of the legislature or
invade the province of one of the other departments of the govern-
ment. But unless the law in question belongs to one of the classes
mentioned above, or is open to some one of the objections described,
the mere fact that it is retroactive in its operation will not suffice to
justify the courts in declaring it unconstitutional, unless all laws of
that character are prohibited by the constitution of the state.' No
such prohibition is found in the federal constitution. If a state statute
does not impair the obligation of contracts or partake of the nature
of a bill of attainder or an ex post facto law, its retrospective character
does not make it inconsistent with the national constitution.^ But in
the constitutions of some few of the states, we find a specific prohi-
bition against retroactive legislation, eo nomine.'
sBailes v. Daly, 146 AJa. 626, 40 Soath. 420; Martin r. Oskaloosa (Iowa)
99 N. W. 557 ; Porter r. Glenn, 87 IlL App. 106 ; Gladney v. Sydnor, 172 Mo.
318, 72 S. W. 554, 60 L. R. A. 860, 95 Am. St Rep. 517 ; Bntte Sc B. Oonscri.
Min. Go. T. Montana Ore Purchasinir Co., 25 Mont 41, 63 Pac. 825; Mercbants'
Bank y. Ballon, 98 Va. 112, 82 S. E. 481, 44 Xi. R. A. 306^ 81 Am. St Rep. 715.
See 'VonatitutUmal Law,** Deo. Dig. (Key No.) 8f BZ-llS, 186-208; Cent. Dig.
II m-StSO, 526-590.
8 Cataen t. Brewster, 208 U. S. 543, 27 Sup. Ot 174, 51 L. Ed. 310; Orient
Ins. Co. ▼. DaggCK 172 U. S. 557, 19 Sup. Ct 281, 43 L. Ed. 552; Plnmmer ▼.
Northern Pac. Ry. Co. (C. C.) 152 Fed. 206; Atwood t. Buckingham, 78 Conn.
423, 62 AU. 616; Kiskaddon v. Dodda, 21 Pa. Super. Ct 351; Whitlock t.
Hawkins, 105 Va. 242, 53 S. E. 401 ; State r. WhitUesey, 17 Wash. 447, 50
Pac. 119. Bee "Conetitutionai Law,*' Dec. Dig. (Key No.) |{ 186-203; Cent.
Dig. H 526-590; ^'Statutee,** Cent. Dig. || S42-S77.
« Satterlee ▼. Matthewaon, 2 Pet 380, 7 I* Ed. 458; Drehman v. Stifle, 8
Wall. 596, 19 L. Dd. 508. See *Von8titutional Law,** Dec. Dig. (Key No.) |
186; Cent. Dig. | 526.
B See New York L. Ins. Co. r. Board of Com'rs of Cuyahoga County, 106
Fed. 123, 46 a a A. 233 ; State v. Galyeston, H. & S. A. R. Co., 100 Tex. 153,
97 S. W. 71. See '*Con$tUut4onal Law,'* Deo. Dig. (Key No.) H 186-20S; Oeni.
Dig. II 626-590.
Bi..Gonbt.L.(3o.Bd.J
7M EBTBOACTIYB LAWS. (Ch. 22
SBTBOAOTI V H BFFBOT AVOIDED BT OOHSTBTTOTIOH.
SM. A mtmtutm will hm Mmsiived t* operate Im tutmro obIj (tJuit ie» It
will Bet be shreB » retroaetlTe effeet bj eonetniotleii)* imleM
the lesftfllatBre has ee eocplieitlj espreeaed its ImteBtiom to auUw
tbe aet getroepeetiwe that tbeve is mo plaee for a reaeoaable
doabt OB tbe sabjeet.*
The reason for this rule is the general tendency to regard retro-
active laws as dangerous to liberty and private rights, on account of
their liability to unsettle vested rights or disturb the legal effect of
prior transactions. ^'Retrospective laws being in their nature odious,
it ought never to be presumed the legislature intended to pass them,
where the words will admit of any other meaning." ^ And where the
law is clearly and explicitly retrospective, it will still be subjected, in
this respect, to a rigid interpretation, so that its retrospective features
may not be further extended than is absolutely required by the lan-
guage of the act*
OUKATIVE STATUTES.
297* Tbe lesielatare auij retroepeetlTely validate traBsaetleBe be-
tweoB private persoBS* wbleb wovld otberwiee fall to bave tbe
effeot wbleb tbe parties iBteaded to stve tbeat, eltber 1b eoase-
qaoBee of a want of eapadtr* or of a f allvre to obeerre f onaal-
Itlos wbleb tbe law IsLposed and Brbleb it Bdcbt dlepeaee wltb.
It is first to be noticed that the object of curative and confirmatory
acts is to give effect to the intention of the parties, to enable them to
carry into effect some transaction which they have designed and at-
tempted, but which fails of its expected legal consequences only by
reason of some statutory disability or some irregularity in their action.
Hence it would not be competent, by an act of this kind, to make the
transaction carry a legal effect which the parties did not contemplate,
e. g., to turn an attempted mortgage into a deed absolute.
• AuffmoMt T. Rasln, 102 U. S. 620, 26 L. Ed. 262. See '^Statutes,*' Dec Dig,
(Keu Vo,) I teS; Cent. Dig. | 5^4.
T Underwood v. Ully, 10 Serg. & R. (Pa.) 97, 101. Bee '"Oonttitutional Law,*'
Dec. Dig. (Key No.) | 195; Cent. Dig. | 542.
8 Thames Mfg. Co. v. Lathrop, 7 Oonn. 560. See 'Vonstitutional Xato,"
Deo. Dig. (Key No.) S 19S; Cent. Dig. f 5S8.
§ 297) OURATIVS STATUTES. 765
In the next place^ statutes of this kind are intended to do justice,
and they cannot be objected to by the party whose invalid contract
or conveyance they validate. Such a party cannot claim that he has
a vested right to insist upon the ineffectualness of the contract or
conveyance. On the contrary, the law recognizes an equity in the
other party to the transaction, and it is to this that the curative act
gives effect.*
But retrospective curative statutes cannot be allowed to operate to
the detriment of the intervening rights of third persons. Thus if, after
the execution of an invalid contract or conveyance, the person who
made it deals with a third person, in good faith, in respect to the same
subject matter, the rights thus acquired by such third person cannot be
cut out by the validation of the prior contract or conveyance.**
The invalidity of the transaction may arise from the want of au-
thority or capacity in the person who attempted to transfer rights to
another. And this may be of two kinds, natural or legal. If it is of
the former sort, the legislature cannot supply the lack of capacity;
if of the latter description, it may be remedied. For example, if one
undertakes to transfer property which he does not own, or, by such a
transfer, to effect a fraud upon the rights of third persons, his want
of capacity to make a title is not such as the legislature may dispense
with retroactively. And for a like reason, it could not give effect to
a deed made by a lunatic. But on the other hand, legal disabilities,
whether existing at common law or by statute, such as the disability
of a married woman, a minor or a spendthrift, could be removed at
any time by an act of the legislature, and therefore their invalidating
effect may be taken away, in particular cases, by a curative statute,
when it is necessary to do justice and carry into effect the intention
of the parties. When the invalidity of the transaction arises from ir-
regularity in the action of the parties, or failure to observe technical
requirements, it may be cured, provided the formalities neglected were
• Thus a statute conferring upon a bank power to hold real estate to which
It has receKed a conveyance, executed in good faith by the vendor, is valid,
though enacted without the vendor's procurement or consent Thweatt v.
Bank of HopkinsviUe, 81 Ky. 1. See **Con9titutional Laic,'' Dec, Dig. (Key
Tfo.) H 9t-112, lae-^OS; Cent, Dig. Si llk-ftlO, 526-^90.
to McDowell V. Rockwood, 1S2 Mass. 150, 65 N. B. 65 ; Merchants^ Bank v.
Ballou, 98 Va. 112, 82 S. B. 481, 44 L. R. A. 306» 81 Am. 8t Rep. 715 ; Thomp-
son V. Miwgan, 6 Minn. 282 (Gil. 100). Bee '^Constitutional Law,*' Dec Dig.
(Key No.) U 191-196; Cent. Dig. ff 5Ji9-5i9.
756 BBTBOACTIYB LAWS. (Ch. 22
such as the law established and might dispense with, and the defects
were not jurisdictional,*^
To illustrate the foregoing principles, we may cite the rule that,
"when a deed or other conveyance is invalid by reason of the failure
of the parties thereto to conform to some formality imposed by the
statute, the legislature, which imposed the formality, may by a sub-
sequent act cure the defect, and g^ve the deed such effect as the parties
thereto intended that it should have at the time of its execution." **
Thus, a curative act validating deeds which were ineffectual to con-
vey title only because the acknowledgment was informal, taken before
a wrong officer, or otherwise defective, is good and valid.** But when a
deed of a corporation is executed by the president and secretary under
their private seals, and there is nothing to show that they were author-
ized by the directors to make the deed, this is not such an irregularity
or defect as can be cured by a subsequent statute.** The legislature
may authorize a county or other municipal corporation to subscribe to
the stock of a railroad company and to issue bonds to pay such sub-
scription ; and if, by reason of mistake, carelessness, or other cause, the
conditions precedent to the exercise of such power by the municipality
have not been complied with, the legislature can cure all irregularities
by subsequent legislation, and make such contracts as valid and bind-
ing as if all the conditions precedent had been strictly complied with.*'
11 Single Y. Marathon County Sup*r8, 38 Wis. 363. Ab to statute validating
defective marriage contract, aee Lufkin v. Lufkin, 182 Mass. 476, 65 N. E.
840. See ^'Constitutional Law,*' Dec Dig. (Key No.) H 19t-196; Cent, Dig.
f I 536-^49.
n Pelt ▼. Payne, 60 Ark. 637, 30 8. W. 426. But it is not competent for the
legislature to pass an act declaring a deed, which was a valid conveyance
when made, fraudulent and void unless recorded previous to the recording of
a subsequent deed obtained by a bona fide purchaser or mortgagee. Varlck's
Ex*r8 V. Briggs, 22 Wend. (N. Y.) 543. See ^'Constitutional Law,*" Dec. Dig.
(Key No.) IS 192-196; Cent. Dig. S| 536-51,9.
IS Smith V. Oale, 144 U. & 609, 12 Sup. Ot 674^ 36 L. Ed. S21; Bryan v.
Bryan, 62 Ark. 79, 34 S. W. 260 ; Shrawder v. Snyder, 142 Pa. 1, 21 Atl. 796 ;
Carson v. Thompson, 10 Wash. 205, 38 Pac. 1116 ; Barrett r. Barrett, 120 N.
C. 127, 26 S. B. 691, 36 L. R. A. 226. See ''Constitutional Law," Deo. Dig.
(Key No.) H 192-196; Cent. Dig. {f 536-549; "Acknowledgment,'* Dec Dig.
(Key No.) | 47; Cent. Dig. SS 235-B40.
14 McCroskey ▼. Ladd (Cal.) 28 Pac. 2ia See "Deeds,** Dec Dig. (Key No.)
i 52; Cent. Dig. f 98.
IB Thompson T. Lee County, 3 Wall. 327, 18 L. Ed. 177; Grannlss ▼. Chero-
kee Tpk (C. O.) 47 Fed. 427; BaU v. Presidio County (lez. Civ. App.) 27 S. W.
8 298) STATUTES GURINa ADMINISTBATXYB ACTION. 757
STATUTES OUBnrO ADKINISTRATIVE ACTIOH.
298. Def eetlT« legal prooeedliics* IatoItIsic adjnlalatratlTe or ezeontiTo
sotton, BiAj bo Talldated hj rotroapeotlTo statnte in all omses
irhere the lesialAtwo would lutTo poirev to declare tltat the
same aote, or tho eaate aiaanor of dolmc tliea^ aliovld Im €km tm^
tare bo Talld and effeotval« bat not where the def eote are Jaria«
diotionaL
If the invalidating defect concerns the rights of parties to such an
extent that the transaction, thus defective, cannot be said to answer the
requirement of due process of law, it is obvious that the legislature
cannot give it validity by subsequent statute. But if the defect con-
sists merely in the omission or neglect of some formality (that is,
something which the positive law has required, but which is not in-
herently necessary to the validity of the transaction), or in an imper-
fect or irregular manner of complying with the requirement of some
such formality, then the legislative authority is ample to cure the de-
fective proceeding by a retroactive statute.**
Tax Proceedings.
It is within the constitutional power of the legislature, under proper
limitations, to pass general or special acts curing or validating irregular
and defective proceedings in the assessment and collection of taxes.
But this power is bounded by the general rule above stated. Proceed-
ings in the assessment and collection of taxes which the legislature
might have dispensed with, or made immaterial, in the statute under
which the proceedings are taken, may be dispensed with or made im-
material by a statute passed after the proceedings have been taken
and acting retrospectively, and thus defects in those proceedings, or
the omission altogether of proceedings which might have been origin-
ally dispensed with, may be cured.*^ But if the defect is jurisdictional,
702; Bell ▼. FarmTiUe & P. IL Co., 91 Va. 99, 20 S. B. 9i2. See **Con8titu^
tional Law,*" Dec. Dig. (Key No.) S| 192-196; Cent Dig. ff 6SS^49.
i« Wbitlock y. Hawkins, 105 Va. 242^ 53 S. B. 401 ; City of Redlands ▼.
Brook, 161 Oal. 474, 91 Pac. 150; Craoor r. Yolasia County Com'rs, 54 FUl
526, 45 South. 455; Hodge v. Trusteee of School Dist No. 9 of Clarendon
County, 80 S. a 518, 61 S. B. 1009; McSnrely v. McGrew (Iowa) 118 N. W.
415. Bee **0on8titutional Law," Deo. Dig. (Keg No.) H 192-196; Cent. Dig.
f f 536-549.
IT People ▼. Tomer, 145 N. Y. 451, 40 N. R 400; People ▼. Wisconsin Cent
R. Co., 219 IlL 94^ 76 N..D. 80; Haynes t. SUte^ 44 Tex. av. App. 48% 99 S.
758 BBTBOACTIYB LAWS. (Ch. 22
that is to say, if it goes to the root of the authority to act, if it in-
volves the omission of a step which the legislature could not have
dispensed with, or if it consists in an irregularity which the legislature
had no power to declare immaterial, then it is beyond the reach of a
curative statute.** For instance, if the tax itself was void, because
levied for an unlawful purpose, or for any other reason, this is a de-
fect which cannot be cured retrospectively.** So where power was
conferred by the legislature to make an assessment, which actually was
made, it is competent for the legislature by a retroactive law to cure
any irregularity or defect in the form in which the power was exercised.
But the total lack of any assessment of the taxes cannot be cured, for
this would be a jurisdictional defect Nor can curative laws be em-
ployed to legalize an assessment which is so fatally defective as to be
entirely void, whether for want of jurisdiction or want of authority
to make it.** It must also be remembered that notice to the tax payer
and an opportunity for him to be heard in opposition to the assess-
ment, or to its amount, is a jurisdictional requisite. No retrospective
statute can waive such notice or cur^ the want of it, because the legis-
lature could not have dispensed with it in advance.'* It is competent
to provide for the assessment and taxation of property omitted from
W' 405. Where the law requires tax assessors, before entering upon their
duties, to take and subscribe an oath, and the assessors take, but do not sub-
scribe, the required oath, it is competent for the legislature, by a subsequent
ctiratlve statute, to validate the assessment made by them. Smith t. Hard,
59 Vt 13, 8 AU. 817. So, where a tax levy is invalid because the assessors
omitted to include property which should have been included, the l^slature
may yalidate it Van Deventer ▼. Long Island City, 57 Hun, 590, 10 N. Y.
Supp. 801. See "^Constitutional Law,*' Dec. Dig. (Key No.) {§ 192-196; Cent,
Dig. n 536-51,9.
i« Exchange Bank Tax Cases (C. C.) 21 Fed. 99; Forster t. Forster, 129
Mass. 559; Carlisle v. Goode, 71 Miss. 453, 15 South. 119; Northern Pac. R.
Co. 7. Galvin (C. C.) 85 Fed. 811. Bee "Constitutional Law,'* Dec. Dig. (Key
No.) II 192-196; Cent. Dig, || 536-5^9.
!• Conway v. Cfeble, 37 111. 82, 87 Am. Dec. 240; Hart v. Henderson, 17
Mich. 2ia See ""Constitutional Law,** Dec. Dig. (Key No.) || 192-196; Cent.
Dig. H 536-549, 906.
soReis ▼. Orair, 51 Cal. 86; Hart y. Henderson, 17 Mich. 218; People v.
Lynch, 51 Cal. 15, 21 Am. Rep. 677. See Mayor, etc., of Baltimore r. XJlman,
79 Md. 469, 30 Atl. 43 ; LouiSYlUe & N. R. Co. y. Bullitt County, 92 Ky. 280,
IT S. W. 632. Bee "* Constitutional Law,** Dec. Dig. (Key No.) || 192-196;
Cent. Dig. || 536-549; ""Statutes,** Cent. Dig. | 360.
31 Breaux v. Negrotto, 43 La. Ann. 426, 9 South. 502. See ""Constitutional
Law,** Deo. Dig. (Key No.) {| 192-196; Cent. Dig. |{ 536-64$.
8 299) OURINO DBFECTiyB JUDICIAL PR0CEEDIM08. 759
the regular assessment, provided it was subject to taxation under a
valid law at the time it should have been assessed.** And so it is
within the power of the legislature to recognize the existence of a
moral obligation to refund excessive taxes paid by the citizen, and
to give it legal effect by a retroactive statute,** but not to impose differ-
ent and more onerous conditions upon the right to redeem property
from tax sales previously made.**
Public Sales.
Sales made by public officers or under legal authority or in pur-
suance of legal proceedings, such as sales on execution, or on fore-
closure of a mortgage, or under a decree of partition, or by execu-
tors or guardians under orders of the probate court, which are in-
effectual only in consequence of some defect or irregularity which the
legislature might have rendered immaterial in advance, and which
does not affect the substantial rights of parties interested, may be
made good by retrospective legislation.**
OUBINO DEFEOTXVB JUDIOIAIi PBOCEEDIHOB.
£99. RatgOBpeetiv ewatlTe stotvtes maj hm eniploired t» vvBMdy nuk
def eets Im Jtidielal prooeedlasa as amovrnt to mera Ivresalari*
UmBf Irat Bi»t to ampply wamt of Jvarlfldletlom*
Where there is a want of jurisdiction, all proceedings had in the
case are utterly void If a statute should give them validity and effect,
it would amount to a usurpation of judicial power by the legislature.
For the rights of parties would in that case be determined, not by
ss CarroU y. Wriirht, 131 Ga. 728» 63 S. B. 260 ; Kentucky Union Oo. ▼. Cam.,
128 Ky. 610, 83 Ky. Law Rep. 567, 110 6. W. 396» 27 Ky. Law Rei>. 1160; State
T. Vogelsang, 188 Mo. 17, 81 8. W. 1087 ; Mnlr's Adm'r ▼. Bardstown, 120 Kj.
780, 87 S. W. 1096 ; First Nat Bank ▼. Covington (G. C) 106 Fed. 623. See
"Constitutional Law,'' Dec Dig. (Key No.) |f 186-209; Cent. Dig. f| 52&-590.
s* People ▼. Board of Education & Trustees of School Dist No. 1, 126 App.
Diy. 414, 110 N. Y. Supp. 769. 8e€ '^Constitutional Law,*' Dec. Dig. (Key No.j
^190.
S4 Ji^inson t. Taylor, 150 Cal. 201, 88 Pac. 903, 10 L. R. A. (N. S.) 818, 119
Am. St Rep. 181. See ^^Constitutional Law,*' Dec. Dig. (Key No.) f 190.
tsAckerson ▼. Orchard, 7 Wash. 877, 35 Pac. 606; De ZbranlkOT y. Bur-
nett, 10 Tex. Civ. App. 442, 81 S. W. 71 ; Finlayson t. Peterson, 5 N. D. 587,
67 N. W. 068, 83 L. R. A. 682, 57 Am. St Rep. 584. See '^Constitutional Law/*
Dee. Dig. (Key No.) H 166^03; Cent. Dig. || 52S-690.
760 BBTBOACTIYB LAWS. (Ch. 22
the judgment of the court, but by the statute alone.** But in the
case of merely irregular or defective proceedings, it is otherwise. For
here the fault lies in some particular which the legislature might have
rendered immaterial or dispensed with in advance. Thus, in cases
where the jurisdiction has attached, and there has been a formal de-
fect in the proceedings, where the equity of the patty is complete, and
all that is wanted is legal form, it is within the recognized power of
the legislature to correct such defect and to provide a remedy for the
legal right *^
te For Instance, where Judicial proceedings are void because of an entire
want of notice to a party whose rights are affected thereby, a subsequent
statute assuming to validate such proceedings Is not valid. Board of Corners
of Wells Oounty v. Fahlor, 132 Ind. 426, 31 N. E. 1112. And see State v.
Board of Education, 22 Ohio Cir. Ct R. 224; Livingston v. Livingston, 173
N. Y. 377, 06 N. E. 123, 61 L. R. A. 800, 93 Am. St. Rep. 600. See **Constitu-
tional Law,*' Dec, Dig. (Key No.) 8 195; Cent. Dig. | 5^2.
3T Lane v. Nelson, 79 Pa. 407. And see South West Imp. Co. v. Smitii's
Adm*r, 86 Va. 306, 7 S. B. 365, 17 Am. St Rep. 59; Hall v. Perry, 72 Mich.
202, 40 N. W. 324; Eastman v. McOarten, 70 N. H. 23, 45 Atl. 1081. See
"^ConstUutiotua Law,'' Deo. Dig. (Key No.) 1 195; Cent. Dig. | 5^.
TABLE OF CASES CITED.
[THX nOUBXB BEFBB TO PAGES.]
Abbott v. National Bank of Oonunerce,
688.
Abeel t. Clark, 390.
A. Booth & Co. T. Davis, 238.
Abraham t. Casey, 187.
Ackerson t. Orchard, 759.
Adair t. U. S.. 231, 421.
Adams v. Capital State Bank, 68.
Adams v. Chicago, B. & N. R. Co., 491.
Adams ▼. Corriston. 628.
Adams t. Crecn, 747.
Adams v. Kuykendall. 505.
Adams t. Roanoke, 585.
Adams t. Shelbyyille, 584.
Adams Exp. Co. t. Charlottesrille Wool-
en Mills, 220.
Adams Ekd. Co. t. State, 601.
Adams & Bryson ▼. Lytle, 293.
Addyston Pipe & Steel Co. t. U. S., 218,
237, 239, 241. r.afi.
Adkins y. Richmond, 250.
Adler & Sons Clothing; Co. t. Cori, 566.
Adyisory Opinion, In re, 365.
J¥kna Ins. Co. t. Brigham, 636.
^tna Ins. Co. t. Com., 429.
Agna Piira Co. of Las Vegas t. Las Ve-
gas, 375.
Ahl V. Glein, 867.
Ah Lim y. Territory, 40a
Ah LfOng, In re, 126.
Ah Peen, ^l parte, 685.
Ah Sin y. Wittman, 547.
Ah Ynp, In re, 259.
Aikiu y. State, 693.
Aikmann y. Sanderson & Porter, 691.
Aitken y. Wells Riyer,396.
Alabama y. Georgia, 29.
Alabama Girls* Industrial School v.
Reynolds. 27, 80.
Alabama Gold Life Ins. Go. y. Girardy,
181.
Alabama Industrial Sdiool y. Addler, 26.
Alabama & V. R. Co. y. King, 737.
Albani, The, 169.
Albany City Nst Bank y. Maher, 580.
Albers Commission C6. y. Spencer, 431.
Albert y. Gibson, 67.
Albright y. Fisher, 862.
Albright y. Sn^nez County Lake & Park
Commission, 484, 485.
Albuquerque Land ft Irr. Co. y. Gutiei^
res, 480.
Alden y. Fitta, 335.
Aldridge y. Soears, 478.
Alexander y. Milwaukee, 494.
Alexander y. U. S^. 472.
Alexandria ft F. R. Co. y. Alexandria
ft W. R. Co., 478,. 48a
Alford y. Hicks, 80.
Alfred Phosphate Co. y. Duck Riyer
Phosphate Co., 473, 477, 478.
Alger y. Anderson, 151, 185.
AUec y. Reece, 12.
Allegheny Connty Home's Case, 883,
385.
Allen y. Arguimbau, 178b
Allen y. Colby, 616.
Allen y. Crofoot, 662.
Allen y. Jay, 868. 458.
Allen y. Jones, 475.
Allen y. Staples. 614.
Allen y. State, 702.
Allentown y. Wagner, 506.
Allgeyer y. Louisiana, 523, 525.
Allison, In re, 516.
Allman y. Mobile, 386.
Allnut y. Lancaster, 190.
Allopathic State Board of Medical Sz-
aminers y. Fowler, 410.
Almy y. California, 210, 359, 360.
Alyarez y Sanches y. U. S., 166.
American Ass*n y. Williams, 191.
American Banana Co. y. United Fruit
Co., 239, 241, 244.
American De Forest Wireless TeL Co.
y. Superior Court of City ft County of
San Francisco, 573.
American Rxp. Co. y. State. 220.
American Fire Ins. Co. y. State. 429.
American Homestead Co. y. Karsten-
diek, 411.
American Ins. Co. y. Canter, 142, 278.
American Ins. Co. y. 856 Bales of Cot-
ton. 279.
American Print Works y. Lawrence,
39«.
American Rapid Tel. Co. y. Hess, 897,
737.
American S. B. Co. y. Chace, 161.
American S(4iool of Magnetic Healing y.
McAnnulty, 266.
American Smelting Co. t« Colorado, 743.
BL.ConBT.L.(8D.ED.)
(761)
762 CA8BS CITED.
[Th« flgnrM refor to pacw.]
American Smelting & Refining Co. t.
People, 460.
American Steel & Wire Co. t. Speed,
260, 859.
American Strawboard Co. t* Peoria
Strawboard Co., 429.
Ames y. Kansas, 166.
Amea t. People, 240.
Amet y. Railroad Co., 142.
Ames Realty Co. y. Big Indian Min.
Co., 151.
Amorr y. Amorr. 800.
Amoskeag Nat. Bank y. Ottawa, 380.
Amperse y. Winslow, 12.
Anderson y. Anderson. 299.
Anderson y. Baker, 045.
Anderson T. Berry, 888.
Anderson y. Byrnes. 000.
Anderson y. Com., 870.
Anderson y. Dann, 202.
Anderson y. Hamilton. 121.
Anderson y. Henry, 593.
Anderson y. Indianapolis Drop Forging
Co., 00.
Anderson y. Lewis, 816.
Anderson y. Messenger. 571.
Anderson y. Ritterbascn, 379.
Anderson y. Ronntree, 200.
Anderson y. Santa Anna Tp., 187.
Anderson y. Wellington, 404.
Andreas y. Beaumont, 875.
Andrew y. New York Bible & Conmion
Prayer Book Soc., 529.
Andrews y. Auditor, 446.
Andrews y. King County, 463.
Andrews t. Smith, 182.
Andrews y. Swartz, 588.
Andrews y. Wall, 160.
Andms y. Fidelity Mut Life Ins. Ass'n,
551.
Angle y. Chicago, St P. M. ft O. R.
Cfc., 71.
Anglo-American Land, etc, Co. y. Lom-
bard, 188.
Anglo-Caiifomian Bank y. Field, 565.
Annable y. Patch, 598.
Ansley y. Ainsworth, 101, 721.
Antelope, The, 17, 209.
Anthony, Ex parte, 333.
Anthony y. Burrow, 150, 153, 185.
Anthony y. Halderman, 648.
Anti-Kalsomine Co. y. Kent Circuit
Judge, 610.
Antoni y. Greenhow, 171, 730, 746.
Antrim's Case, 144.
Apex Transp. Co. y. Oarbade, 478. 645.
Appeal Tax Court of Baltimore City y.
Patterson, 447.
Appeal Tax Court of Baltimore City y.
Rice, 466.
Appleyard y. Massachusetts, 804.
Application for Admission to Practice,
In re, 601.
Application of Senate, In re, 106.
A. R. Barnes & Co. y. Berry, 410«
Arey y. Lindsey, 78.
Arie y. SUte, 81.
Ariola v* Newman, OQQi.
Arkansas, L & O. R. Co. y. Kenne-
dy, 68.
Arkansas M. R. Co. y. Canman, 406.
Armour Packing Co. y. U. S., 230^ 245,
360.
Armstrong y. Athens County, 178.
Armstrong y. Carson, 298.
Armstrong y. Traylor, 376.
Arnold y. Aldeu, 726.
Arnold y. Arnold's Estate, 534.
Arnold y. Decatur, 475.
Arnold y. Tenders, 250.
Amott y. Webb, 298.
Arrowsmith y. Harmoning, 595.
Arwine y. California Board of Medical
EiXaminers, 99.
Asbell y. State, 26.
Asbeli y. State of Kansas, 227, 253.
Asher y. Texas, 249.
Associated Press t. Com., 246.
Astrom y. Hammond, 94.
Atchison SL R. Co. y. Missouri Pac. E
Co. 10.
Atherton Mach. Co. y. Atwood-Morrison
Co., 153.
Atkin y. Kansas, 416.
Atlantic City y. France, 405.
Atlantic City Waterworks Co. y. Atlan-
tic City. fSS2, 578.
Atlantic Coast Line R. Co. y. Beaziey,
417.
Atlantic Coast Line R. Co. y. Com., 250.
Atlantic Coast Line R. Co. y. North
Carolina Corp. Commission, 407, 545.
Atlantic Coast Line R. Co. y. Wharton,
251.
Atlantic, S. R. ft G. R. Co. y. State,
470.
Atlantic ft Q. K Co. y. Georgia, 62, 186.
Atlantic ft P. Tel. Co. y. Philadelphia,
248.
Attorney General, In re, 279.
Attorney General y. A. Booth ft Co.,
558, 643.
Attorney Genera] y. Board of Oanvas-
sers of Seventh Senatorial Dist, 344.
Attorney General y. Bolger, 320.
Attorney General y. Common Council
of City of Detroit, 314.
Attorney General y. Ban Claire, 458.
Attorney General y. Electric Storage
Battery Co., 295.
Attorney General y. Jochim, 572, 575,
596.
Attorney General y. Metropolitan R. Co.,
489.
Attorney General y. Old Colony R. Co.,
98.
Attorney General y. Rice, 849.
Attorney General y. State Board of As-
sessors, 68, 77.
Attorney General y. Township Board of
Springwells, 875.
Attorney General y. Western Union Tel.
Co.. 285.
Attorney General y. Winnebago Lake
ft F. R. Plank Road Co., 46^
CA8B8 CITED.
[Th« flgnrM refer to p«cw-]
763
Attorney General of Massachusetts t.
Western Union TeL Co., 460.
Atwood y. Buckinshani. 606, 758.
Atwood T. Welton, 684
Aabry, In re, 410.
Anffmordt t. Basin, 754.
Augusta Bank v. Augusta, 467, 465.
Augusta Brokerage Go. t. Guitral of
Georgia R. Co., 282.
AnJd T. Butcher, 723.
Aurora ft G. R. Go. v. Harrer, 487.
Austin T. ISUte, 226, 2»3, 40D.
Austin y. Tennessee, 217, 252.
Auten y. United States Nat Bank, 154.
Ayery's Will, In re, 590.
Ayers, In re, 171.
B
Backus y. Fort St Union Depot Co.,
471, 546, 587. 505.
Backus y. Lebanon, 406w
Bacon y. Board of State Tax Com'rs,
462.
Bacon y. Locke, 295.
Bacon y. Texas, 17H.
Bacon y. Towns, 701.
Bacon y. U. S., 607.
Bacon y. Walker, 380, 800, 552L
Badenoch y. Chicago, 550.
Bailee y. Daly, 753.
Bailey y. Dozier, 165.
Bailey y. Mason, 003.
Bailey y. Master Plumbera, 426L
Bailey y. Milner, 35a
Bailey y. State. 542.
Bally y. Philadelphia, 562.
Bain, Elz parte, 680.
Bsird y. New York, 630.
Bais, In re, 156.
Baker, Ez parte, 307.
Baker y. Grand Rapids, 616b
Baker y. Lexington, 732.
Baker y. Norwood, 471, 586.
Baker y. State, 540.
Baldwin y. Hale. 260, 748.
Baldwin y. Hutchison. 662.
Ball y. Presidio County, 756.
Ball y. Rawles. 661.
Ball y. Rutlsnd R. Co., 414, 742L
Ball y. U. S., 682.
Ballard y. Hunter, 63, 583, 648.
Baltimore & O. K Co. y. Kreager, 737.
Baltimore & O. R. Co. y. Pittsburg, W.
& K. R. Co^ 409, 591.
Baltimore & O. S. W. R. Go. y. Board
of Com'rs of Jackson County, 486.
Baltimore & O. S. W. R. Go. y. Reed,
602.
Baltimore & O. & O. R. Go. y. Sawyel,
683.
Baltimore & 8. R. G6. y. Nesbit, 710.
Baltser y. North Carolina, 746.
Bancroft y. Cambridge, 388.
Bancroft y. Hambly, 180.
Bank y. Superyisors, 212.
Bankera' Case, 8I81.
Bank of California y. San Francisco,
452.
Bank of Columbia y. Okely, 578, 627.
Bank of Kentucky y. Com., 447.
Bank of Kentucky y. Wister, 172.
Bank of Pennsylyania y. Com., 441.
Bank of St Mary's y. State, 60a
Bank of United States y. Deyeaux, 164.
Bank of United States y. Planters'
Bank, 172.
Banks, Bx parte, 706.
Banks, In re, 654.
Banks y. State^OO.
Banks, The, y. The Msyor, 212.
Bank Tax Case, 212, 447.
Baptist Church in Hartford y. Wither-
ell, 683.
Barataria Canning Co. y. Joulian, 428.
Barber Asphalt Pay. Co. y. Morris, 192.
Barber Asphalt Pay. Co. y. Ridge, 672,
582.
Barbier y. Connolly, 411.
Barclay y. Barclay, 540. .
Bardift y. Fields, 747.
Barlield t. LouisyiUe, 584.
Barhlte y. Home TeL Co. of Rochester,
505.
Barker y. People, 675.
Barker y. Pittsburg, 734.
Bamardiston y. Soame, 12.
Barnes y. People, 293.
Barney y. Baltimore, 164.
Barnhard Bros. & Spindler y. Morrison,
217.
Bamiti y. Beyerly, 750.
Barrett y. Barrett, 756.
Barrett y. Hopkins, 145.
Barrett y. Millikan. 576.
Barrett y. State. 702.
Barrington y. Missouri. 177*
Barron y. Burnside, 105.
Barrow S. S. Co. y. Kane, 160.
Barry, In re, 183.
Barry y. Mercein, 177.
Bartemeyer y. Iowa, 642.
Bartholomew y. Austin, 662.
Bartlett y. Ball, 599.
Bartlett y. State, 89.
Bartlett y. Wilson, 581.
Barton y. Kimmerley, 570.
Barton y. Stete, 710.
Barton Nat Bank y. Atkins, 724.
Basso y. U. S., 21, 142.
Bates y. Bassett 515.
Bates y. Taylor, 319.
Bates' Case, 85.
Baum y. State, 674.
Bauserman y. Blunt, 186.
Bayard, In re, 706.
Bayard y. Singleton, 58w
Baylies y. Curry, 549.
Baylis y. Travelers* Ins. C6., 628.
Bazemore y. State, 425.
Beach y. Bay State Steamboat Gow, 86B.
Beach y. Trudgain, 608.
Beals y. State, 462.
Beam t. U. 8., 124.
764
CASB8 CITBD.
[Tli« flfiir« Tttw to p«cw-]
BeardBley y. New York, U 10. ft W. B.
Co., 413, 743.
Beatson v. Skene, 121.
Beatty v. Wilson, 191.
Beaupre v. Noyes, 178.
Beavers r. Haubert, 688.
Becker t. La Crosse, 515.
Becker ▼. Washington, 520.
Beckett v. Sheriff Harford County, 181.
Beckstead v. Montana Union EL Co.,
578.
Bedell, E<x parte, 708.
Bedford v. U. 8., 493.
Bedford Quarries Co. t. Bough, 550.
Beebe t. Russell, 179.
Beechley v. Mulville, 429.
Belfast, The, 160.
Belfast Say. Bank y. Stowe, 188.
Belgenland, The, 159.
Belknap y. Ball, 666.
Bell y. Farmyille & P. E. Co., 757.
Bell y. Morrison, 748.
Bell y. Watson, 465.
Belleyille & I. R. Co. y. Gregory, 370.
Bellinger y. New York Cent R, Co., 494.
Bellingham Bay & B. C. R. Co. y. New
Whatcom, 583.
Bellows y. Bellows, 626.
Bell's Gap R. Co. y. PennsyWania, 553.
Bender y. Crawford, 507.
Benedict y. New Orleans, 867.
Benedict y. People, 688.
Benedict y. State, 702.
Benjamin y. Manistee Riyer Imp. Oo.,
222.
Benner y. Atlantic Dredging Co., 494.
Bennett y. Butterworth, 191.
Bennett Water Co. v. Millyale, 57S.
Benson y. People, 321.
Benson y. U. S., 277.
Berea College y. Com., 555w
Bergen, In re, 252.
Berkey y. Cornell, 191.
Rerkowitz y. U. S., 699.
Berlin y. Gorham. 507.
Bemheim y. Waring, 628.
Bemheimer y. Converse, 747.
Bertholf y. O'Reilly, 73, 403.
Bertram y. Commonwealth, 64.
Berry y. De Maris, 579.
Berry y. Bwing, 749.
Berry Coal & Coke Oo. y. Chicago, P. &
St. L. R. Co., 231.
Bessette y. People, 410, 549.
Betancourt y. Mutual Reserye Fund
Life Ass'n, 174.
Bethune y. Hughes, 519.
Bettman y. Oowley, 748.
Beveridge y. Lewis, 473.
Beymau y. Black, 369.
Bickerdike y. State, 368.
Bienvenu, Succession of, 65.
Bienville Water Supply Co. y. Mobile,
562.
Bigelow y. Calumet ft Heda Min. Oo.,
m 239, 241.
Bigelow y. Draper, 485.
Bigelow y. Forrest, 719.
Bigelow y. NIckerson. 364.
Bigelow y. Old Dominion Copper Min-
ing & Smelting Co., 439.
Bigelow y. West Wisconsin R. Co., 499.
Bigler y. Waller, 213.
Billings y. Illinois. 554.
Billings y. State, 2a
BiU PofiUug Sign Co. y. Atlantic City,
Bingham y. Cabot, 165.
Bingham y. Port Arthur Channel &
Dock Co., 493.
Binghamton Bridge Case. 731, 738.
Birmingham Mineral R. Co. y. Parsons,
408.
Birmingham & A« A. R. Co. y. Louis-
ville & N. R. Co., 486.
Birmingham & A. R. Co., Ez parte, 64.
Bischoff y. Wethered, 298.
Bishoff y. State, 732.
Bishop y. American Preserves Co., 243.
Bissell y. Davison, 399.
Bissell y. Kankakee, 368.
Blackham v. Gresham, 265.
Black Hawk Co. v. Springer, 625.
Blackrock Copper Min. & MiU. Co. t.
Tingey, 60, 78.
Black V. State, 554, 708.
Blackstone y. MiUer, 554, 725.
Blackwell v. State, 688.
Blain, Ex parte, 363.
Blair y. Chicago, 163.
Blair y. Cuming County, 458.
Blair y. Kilpatrick, 411.
Blake y. McClung, 294. 295, 558, 576.
Blakcmore y. Cooper, 746.
Blanchard y. Barre, 66.
Blanchard y. The Martha Washington,
223.
Blanchard y. U. 8., 117.
Blaeier y. Miller, 579.
Blindell y. Hagan, 422.
Bloch, In re. 301.
Block y. Chicago, 99.
Block y. Schwartz, 72, 426, 573.
Bloomer v. Stolley, 369.
Bloomfield & R. Natural Gaslight Co. y.
Calkins, 488.
Bloom y. Koch, 574.
Blouin V. Ledet, 749.
Blue Bird Min. Co. y. Largey, 155.
Blue Jacket Consol. Copper Co. y.
Scherr. 14, 26, 551, 743.
Blumenthal v. Craig, 165.
Blum v. Thomas, 165.
Blythe v. Hinckley, 355.
Board of Com'rs for Filling Certain
Slough Ponds in City of St. Louis y.
ShieldB, 372.
Board of Com'rs of Barber County y.
Smith, 383.
Board of Com'xs of Clay County y. Mc-
Gregor, 484.
Board of Com'rs of Franklin County y.
Gardiner Say. Inst., 187.
Board of Com'rs of Grand County y.
King, 444.
CA8BS CITBD.
[Th« flfiirM refer to pecee.]
766
Board of Gom*ra of Jackson Connty t.
State, 470.
Board of Com'rs of Kearney County,
Kan., T. Vandriss, 372.
Board of Oom'rs of Mille Lacs Goonty
T. Morrison, 623, 625.
Board of Com'rs of Petite Anse Drain-
age Diet. Y. Iberia & V. R. Co., 593.
Board of Com'rs of Pitkin County y.
Aspen Mining & Smelting Co., 384.
Board of Conrrs of Wells County t.
Fahlor, 760.
Board of Gouncilmen of City of Baton
Rouge Y. Cremonini, 520.
Board of Directors of Woman's Relief
Corps Home Aas'n of California y.
Nye, 366.
Board of Education y. Bake well, 87.
Board of Education of Cincinnati y. Mi-
nor, 530.
Board of Eiducation of the Kentucky
Annual Conference of the Methodist
Episcopal Church y. Illinois, 636, 643.
Board of Education of Union Free
School Dist. No. 6 of Town of Cort-
landt Y. Board of Education of Union
Free School Dist. No. 7 of Town of
Cortlandt, 727.
Board of Liquidation y. McComb, 95,
171.
Board of Liquidation of City of New Or-
leans Y. U. S., 192.
Board of Metropolitan Police y. Board
of Auditors of Wayne County, 375.
Board of Railroad Gom'rs y. Market
St. R. Co., 80.
Board of Revenue of Montgomery Coun-
ty Y. Montgomery Gaslight Co., 465.
Board of Sup'rs of LiYingston County
Y. Weider, 456.
Board of Sup'rs of Norfolk County y.
Cox, 479.
Board of Sup'rs of Ramsey County y.
Heenan, 379.
Board of Trade of City of Chicago y.
Christie Grain & Stock Co., 239.
Board of Water Supply of City of New
York, In re, 469.
Bobbs-Mprrill Co. y. Straus, 240, 241.
Bobo Y. Board of Levee Com'rs, 71.
Boca Mill Co. v. Curry, 77. 80.
Bogart Y. The John Jay, 161.
Boise Irrigation & Land Co. t. Stewart,
603.
Boiling v. Jjersner, 155.
Bollman, Ex parte, 718.
Bolln Y. Nebraska, 680.
Bond Y. Com., 693.
Bond Y. Jay, 863.
Bond Y. Sanford, 567.
Bonham*s Case, 57.
Bon Homme County y. Bemdt, 68.
Bonner v. Gorman, 595.
Bonner y. Phillips, 446.
Bonnett y. Vallier, 56, 64, 438, 439, 440,
546, 617.
Bonney y. MoClelland, 591.
Bonsai v. Yellott, 867*
Boone y. People, 687.
Booth Y. Com., 352.
Booth Y. Illinois, 566.
Booth Y. People, 396, 487.
Booth Y. Woodbury, 367, 444, 466.
Booth & Co. Y. Seibold, 428.
Bordentown Banking Co. v. Sparhawk,
480.
Borden y. Trespalacios Rice & Irr. Co.,
480.
Borger y. State, 405.
Borough of Dunmore*8 Appeal, 507.
Borough of Freeport v. Marks, 12.
Boske Y. Comingore, 96.
Bosque y. U. S., 21, 259.
Bostock T. Sams, 424.
Boston Beer Co. y. Massachusetts, 388,
389, 402, 436, 577, 600, 737, 742.
Boston Molasses Co. v. Com., 28.
Boston Water Power Co. y. Boston, 465.
Boswell Y. Otis, 299.
Boswell Y. Security Mut Life Ins. Co.,
724.
Botiller y. Domingues, 126.
Bottorff Y. Lewis, 599.
Bott Y. Wurts, 51, 5Z
Bounties, In re, 368.
Bounties to Veterans, In re, 455.
Bourland y. Hildreth, 649.
Bourn y. Hart, 367.
Bowers v. Indianapolis. 406.
Bowman v. Chicago & N. W. R. Co.,
220, 403.
Bowman v. Harris, 152.
Bowman v. Middleton, 58.
Boyce, Ex parte, 389, 416.
Boyce, In re, 68.
Boyd, Ex parte, 711.
Boyd Y. Alabama, 436, 788.
Boyd Y. Mills, 645.
Boyd Y. Nebraska, 259.
Boyd Y. U. S., 824, 610, 614, 687.
Boyett, In re, 340, 538.
Boyle V. State, 678.
Braceville Coal Co. v. People, 418.
Bradbui^ y. Vandalia Levee & Drain-
age Dist, 480.
Bradford Const. Co. y. Heflin, 417, 550.
Bradley, In re, 586.
Bradley y. Fisher, 12.
Bradley y. Light cap, 750.
Bradley t. State, 90.
Bradshaw y. Lankford, 876.
Brad well. In re, 409.
Bradwell y. Illinois, 409, 642.
Brady v. Carteret Realty Co.. 90.
Brady y. Howe, 675.
Brady y. Mattem. 60, 488, 550.
Brady y. State, 407.
Bragg Y. People, 733.
Branch, In re, 86.
Bray y. State, 65.
Breaux y. Negrotto. 758.
Brennan v. United Hatters of North
America. Local No. 17, 430, 559.
Brenner, In re. 00.
7M
CA8IB8 CITBD.
(Jh% tgurm rtfer to p«cw-]
Brent t. Htfner: 12L
Brett T. Bbel ^ea
Breroort y. Grace, 423.
Brewer Brick Go. t. Brewer, 868» 46a
Brewers' Am'ii v. Attorney General, 209.
Brickhonae v. Brooke, 153.
Brigcs y. Traders* Go., 150.
Brigbtman y. Kimer. 868.
Bright y. Murphy, 14.
Brimmer y. Rebman, 435.
Brinkerhoff y. Newark ft H. Traction
Go., 478.
Briscoe y. Bank of Kentucky. 202, 357.
Brisenden y. Gbamberlain, 1d5.
Bristol y. Johnson, 367.
British American Mortg. Go. y. Jones.
743.
Brittle y. People, 282.
Britton y. Atlantic ft a A. B. Gc 557.
Britton y. Board of Election Gom'rs,
566, 668l
Broad, In re, 416.
Broadmoor Land Go. y. Gnrr, 190.
Broadway Baptist Gburch y. McAtee,
746.
Brobine y. Reyere, 90.
Broderick*s Will, In re, 191.
Bronk y. Barckley, 7a
Bronk y. State, 540.
Bronaon y. Bruce, 651.
Bronson y. Bodes, 218.
Brooke y. State, 403.
Brookings Gounty y. Murphy, 874.
Brooklyn Distilling Go. y. SUndard Dis-
tilling ft Distributing Go., 42a
Brooklyn Dnion Gas Go. y. New York,
414.
Brooks y. Mclntyre, 590.
Brooks y. State, 65.
Brooke y. Tripp, 294.
Brooks y. U. S., 120.
Brosnahan, In re, 267.
Brown, Ez parte^ 306, 307.
Brown y. Birmingham, 643.
Brown y. Board of Levee Gom'rs, 572.
Brown y. Garolina Midland By., 408.
Brown y. Glark, 599.
Brown y. Epps, 35, 686.
Brown y. Fleischner, 374.
Brown y. Galveston, 67, 514.
Brown y. Gerald, 476, 478, 48L
Brown y. Houston, 220, 24a
Brown y. Hummel, 507.
Brown y. Jacobs Pharmacy Go., 427,
431.
Brown y. Kalamasoo Gircuit Judge^
333, 746.
Brown y. Maryland, 203, 206, 219, 227,
246, 261, 869. --«,,,
Brown y. Morgan, 161.
Brown y. MuidoiA. 609.
Brown y. Purdy, 399. .
Brown y. Smart, 260.
Brown y. State, 700.
Brown y. U. 8., 131, 270.
Brown y. Walker. 46, 122, 688^ 689.
Brown's Gase, 803, 58a
Brown Shoe Go. y. Hunt67a
Bruce y. Manchester ft K. R. Go., ISL
Brummitt y. Ogden Waterworks Go. 76L
564.
Brun'y. Mann, 150, 152.
Brunn v. Kansas Gity, 479.
Bryan y. Bryan, 756w
Bryan y. Gattelf, 734.
Bryan y. Ghester, 425.
Bryant y. Hunter, 29a
Bryant y. Pittsfield, 491.
Bryant y. Skillman Hardware Go.» 416.
Bryson y. McGreary, 747.
Buck y. Beach, 581.
Buckhout y. Witwer, 42a
Buckner y. Finley, 296.
Buckstair y. Viall, 665.
Budd y. New York, 414.
Buell, In re, 303.
Buffalo y. Collins Banking Go., 426.
Buford y. Speed, 573.
Buist y. Gity Gouncil of Gharleston, 372.
Bullitt y. Sturgeon, 92, 302.
Bullock y. SUte, 556.
Bumpue y. French, 538.
Bunkie Brick Works v. Police Jury of
Avoyelles, 581.
Burbach y. Milwaukee Electric By. ft
Ught Go., 540.
Burcher y. People, 374.
Burdett y. Gom., 667.
Burdick y. People, 409.
Burgess y. Seligman, 186.
Burke, Ex parte, 530.
Burke y. Monroe Gounty, 386.
Burke y. Sector, etc., of Trinity Ghurch,
738.
Burke y. Snively, 867.
Burlington Tp. v. Beasley, 46a
Burnetts y. Marceline Goal Go., 6a
Burnette, In re, 67.
Burnett y. Postal Tel. Gable Go., 474.
Bumham v. Fields, 192.
Bums, In re, 481.
Burns y. State, 632.
Bums y. Superior Gourt, 90.
Bumside, EiX parte, 64.
Burritt y. Gonmiissioners of State Gon-
tracto, 379.
Burrow-Giles Lithographic Go. y. Sar-
ony, 26a
Burrows y. Delta Transp. Go., 72.
Burrows y. Interborough MetroiK>litan
Go., 23a 432.
Burrows y. Vanderbergh, 724.
Burton y. Fulton, 13.
Burton y. U. S., 19a
Bush y. U. S., 124.
Busheirs Gase, 686.
Busse y. Barr, 66.
Butchers' Union Slaughterhouse ft L. 8.
L. Go. y. Gresoent Gity Live Stock
Landing ft S. H. Ga, 4U, 436, 669,
560. 5%.
Butler y. Horwits, 213.
Butler y. Pennsylyania^OOO, 784.
Butler y. State, 87, 679.
CA8BS CITBD.
[TlM flfiirM rtfer to pacts.]
7«7
Bati«r T. White, IW, 181, 287.
Butler T. Woroeeter, 490, 625.
Butler BiOB. Shoe Co. ▼• United States
Bobber Co, 147.
Butte City Water Ck>. t. Baker, 287.
Butte St B. ConeoL Min. Co. t. Mon-
tana Ore Purchaaing Co., 708.
Buttfield y. Bidwell, 227.
Buttfield T. Stranahan, 227, 287.
Button y. U. S., 119.
Byera y. Com., 686.
Byere y. McAuley, 182.
Byrne's Adm'rs y. Stewarfi Adrn'm,
Byrnes v. Douglass, 48L
Cache County y. Jensen, 68L
Cahen y. Brewster, 753.
CahiU y. Benson, 749.
OahUl y. Chicago, M. ft St P. B. Co.,
622.
Cain, Bz parte, 896.
Calder y. BuU, 84. 202; Tia
Calder y. Halket, 12.
Calder y. Kurby, 782.
Caldwell, Ez oarte, 344. 680.
Caldwell y. North CaxoUna, 260.
Oaldwell y. Texas, 596.
Caldwell y. Wilson, 596.
Caldwell County y. Harbert, 612.
Calhoun Gold Biin. Co. y. Ajax Gold
Min. Co., 187, 189.
California y. Central Pac. R. Co., 229,
449.
California Nat. Bank y. Thomas, 178.
California Reduction Co. y. Sanitary
Reduction Works, 400, 437, 489.
Calkins v. Sumner, 662.
Callanan y. Hurley, 90.
Callan y. Wilson, 277, 629, 686.
Oalyin's Case, 633.
Camden IntersUte B. Co. y. Catletts-
burg, 170, 729.
Cameron y. Kyte, 91.
Camille, In re, 259,
Campagnie Franca ise de Naylgation y.
State Board of Health, 899.
Campau y. Detroit, 76.
Campbell y. California, 654.
Campbell y. Centeryille. 447.
Campbeh y. Golden Cycle Min. Co., 161.
Campbell y. Holt, 603, 004.
Campbell y. Iron-Silver Min. Co., 006.
Campbell y. Morris, 294.
Campbell y. Skinner Mfg. Co., 606.
Campbell's Registration, In re, 86, 566.
Camp & West y. McLin, 2&
Canfield y. Gresham, 347.
Cannon y. New Orleans, 861.
Ouitini y. Tillman, 403.
Cantwell y. Missouri. 68, 70, 416.
Capitel City Dairy Co. y. Ohio, 401.
Capitol Ci^ Light k Fuel Oow y. Talla-
hassee, 664.
Ohpito y. Topping, 78^
Cardwell y. American Riyar Bridge Ol^
234.
Carew y. Rutherford, 422.
Carino y. Insular Government of Philip-
pine lalands, 21.
Carleton v. Rugg, 678.
Carlisle v. Goode, 758.
Carmichael v. Adams, 626b
Carolina, The, 169.
Carolina Grocery Co. v. Burnet, 78.
Carolina Nat Bank v. SUte, 26.
Carpenter y. Pier, 300.
Carp y. Queen Ins. Co., 162.
OtLTT y. Brown, 692.
Carr y. Gordon, 180, 181, 186.
Carr y. Hood, 667.
Carr y. SUte, 807, 866. 727.
Carrau y. O'Calligan, 160.
Carrithers y. Shelbyville, 647.
Carroll y. Ohmpbell. 664.
Carroll y. Greenwich Ina. Co., 661*
Carroll y. Wright, 769.
Carruth y. Taylor, 716.
Carson y. Carson, 786.
Oarson y. Smith, 339.
Carson y. Thompson, 766^
Carstairs y. Cochran, 446.
Carter y. Colby, 89a
Carter y. Commonwealth, 90.
Carter y. SUte, 26, 27, d66w
Carter y. Texas, 666.
Carton y. Secretary of SUte, 61.
Casey v. Cincinnati Typographical Un-
ion No. 8, 420, 422.
Casinello, Ehc parte, 400.
Cass County y. Sarpy County, 67.
Cass Farm Co. v. Detroit, 6o4.
Cassidy y. Sullivan, 626.
Castle y. Persons, 591.
Castro y. De Uriarte, 126w
Oathcart v. Comstock, 508.
Catlin V. Hull, 462.
Cavendish, In re, 84.
Cawley v. People, 676.
Cedar Rapids Water Co. v. Cedar Rap-
ids, 414.
Central Bank of Georgia v. Little. 857.
Central Branch Union Pac. K Co. v.
Atchison, T. & S. F. K Co., 469.
Central Branch Union Pac. R. Co. v.
Smith, 66^
Central Bridge Corp. v. Abbott, 483.
Central Bridge Corp. v. T/Owell, 492.
Central Grain ft Stock Ekch. v. Board
of Trade, 160.
Central of Georgia R. Co. y. Alabama
R. Commission, 88, 98.
Central of Geoigia K Co. v. Macon,
676.
Central of Georgia R. C6. v. Railroad
Commission of Alabama, 86^ 418, 645,
546, 571, 669.
Central of Georgia R. Cow v. Wright,
168, 582. ^
Central Ohio Salt Co. v. Guthrie, 481.
Central Pac. R. Co. v. Oalifomia, 460.
Central R. Ca t. Stete Board of Aa-
sessoia, 462.
768
Central B. of New JerMy t. Jersey
City, 20.
Central Trust Co. y. Citizens* Be B.
Co. of Indianapolis, 187.
Central Tmst Co. T.Mliwaokee St R.
Co., 095.
Central Union Tel. Go. t. Columbns
Grove, 473, 475.
Chadwick t. Kelly, 64.
Chae Chan Ping t. U. S., 893.
Chaffee's Appeal. 444.
Chambers t. Baltimore & O. B. Co.,
293.
Chambers t. Gilbert, 579.
Champion v. Ames, 232.
Chandler v. St. Louis & S. F. B. Co.,
18a
Chandler Coal Co. v. Sams, 417.
Chanler t. Kelsey. 738.
Chapman, In re, 199, 703.
Chapman t. Barney, 164.
Chapman t. Chapman, 599.
Chapman t. Douglas County, 004.
Chapman t. Oshkosh ft M. B. Co., 492.
Chapman v. Phoenix Nat. Bank, 575b
Chapman y. U. S^ 346.
Charge to Grand Jury, In re, 217.
Charles v. Marion, 597.
Charles K Wiswall, The, ▼. Scott, 237.
Charles J. Off & Co. t. Morehead, 550,
566, 570.
Charles Biver Bridge t. Warren Bridge,
563. 564, 731.
Charleston Natural Gas Co. y. Lowe,
480.
Charlotte, C & A. B. Co. r. Gibbes, 553.
Chase t. Chase, 300.
Chase ▼. Miller, 649.
Chase v. Trout, 582.
Chastang y. SUte, 609, 687.
Chattanooga Foundry & Pipe Works y.
Atlanta, 243, 244.
Chavez, In re, 21.
Cheatham y. Evans, 185.
Cheever y. Wilson, 298.
Cherokee Tobncco, The, 125.
Chesapeake Stone Co. y. Moreland, 68,
477.
Chesapeake & O. Fuel Co. y. U. S., 238,
210, 241.
Chesapeake & O. B. Co. y. Com., 557.
Chesapeake & O. B. Co. y. Miller, 7-10.
Chesapeake & O. B. Co. y. Walker, 475.
Chesebrough y. San Francisco, 67.
Cheshire County Tel. Co. y. State, 466.
Ohestatee Pyrites Co. y. Cavenders Creek
Gold Min. Co., 473.
Ohiapella y. Brown, 222.
Chicago, B. & Q. B. Co. y. Chicago, 470,
586, 595.
Chicago, B. & Q. B. Co. y. Illinois, 889,
390.
Chicago, B. & Q. B. Co. y. Illinois
Drainage Com'rs, 436.
Oliicago, B. & Q. B. Ca y. Iowa, 413,
559.
Chicago, B. ft Q. B. Co. Y. Nebraska,
737.
CAaW» CITSD.
CThe flgures refer to pages.]
Chicago, B. ft Q. B» Co. y. State, 596.
Chicago City B. Co. y. Cbicago, 57&
Chicago, M. ft St. P. B. Co. y. Mason,
485.
Chicago, M. ft St. P. B. Co. y. Minneso-
ta, 98.
Chicago, B. L ft P. B. Co. y. Eaton,
408.
Chicago^ B. I. ft P. B. Co. y. Ludwig,
743.
Chicago, B. I. ft P. B. Co. y. McGlinn,
277
Chicago, B. I. ft P. B. Co. y. State, 547,
551, 565, 573.
Chicago, B. I. ft PJ B. Oow y. Swanger,
558, 743.
Chicago, S. F. ft C. B. Co. y. McGrew,
503.
Chicago, St P.. M. ft O. B. Co. y. Doug-
las County, 389.
CSiicago Union Traction Co. y. Chicago,
375.
Chicago Union Traction Co. y. State
Board of Equalization, 553.
Chicago Wall Paper Mills y. General
Paper Co., 428.
Chicago, W. ft V. Coal Co. y. People,
420, 428, 430. 431.
Chicago ft A B. Co. y. CarlinYille, 251.
Chicago & A. B. Co. Y. Wiggins Ferry
Co., 296.
Chicago ft E. B. Co. y. Dresel, 498L
Chicago ft E. B. Co. y. Jacobs, 496.
Chicago ft G. T. B. Co. y. Wellman, 63.
Oliicago ft N. W. B. Co. y. Fuller, 406.
Chicago ft N. W. B. Ca y. Langlade
Co.. 509.
Chicago ft N. W. B. Co. y. Whitton, 164,
195.
Chicago ft N. W. B. Co. y. Williams,
567.
Chicago ft W. I. B. Oo. y. Ayres, 492.
Chicago ft W. L B. Co. y. Guthrie, 603.
Chicot County y. Davies, 349, 380.
Chieves y. U. S., 214.
Childs Y. Merrill, 688. •
Chiles v. School Diet, of Buckner, 605.
Chin Yan, Ex parte, 518.
Ohisholm y. Georgia, 34, 46, 168.
Chrisman y. Brookhaven, 556.
Christ Church y. Philadelphia County,
745.
Christianson y. Pioneer Furniture Co.,
618.
Christmas y. Bussell, 297, 300.
Christy Y. EUliott 433.
Christy Y. Kingfisher, 99.
Ohrystal y. Macon, 248.
Church of Holy Trinity y. U. S., 393.
Chy Lung y. Freeman, 22&
Cigar Makers' International Union y.
Goldberg, 575.
Cincinnati Gazette Co. y. Timberlake,
652, 664.
Cincinnati, H. ft D. B. Oo. y. SoIliYan,
406.
Cincinnati. I. ft W. B. Co. T. Connere-
YUle, 38d» 46a
CASES CITBD.
[Th« flfiir« rtfer to pacw.]
769
Oiiidiinati, N. O. ft T. P. B. Oo. T.
Cincinnati, P. B. S. ft P. Packet Go. t.
Bay, 2^
Cincinnati, P. B. S. ft P. Packet Oa r.
Catlettsburg, 301.
Cincinnati, W. ft Z. R. Ca y. Clinton
County Com'n, 374.
Cisco y. Roberta, 22&.
Cisael y. McDonald, 164.
Citixena' Bank of Loaiaiana y. Board of
Assessors for Parish of Orleans, 671.
Citizens' Oas ft Mining Co. y. Elwood,
664.
CItixens' Say. Bank y. Owensboro, 454.
Citizens' Say. ft Loan Ass'n y. Topeka,
72, 868, 458.
City Council of Abbeyille y. Leopard,
396.
City Council of Anderson y. C/Donnell,
711.
City Coandl of City ft County of Den-
yer y. Board of Com'rs of Adams
County, 80.
City of Ajnericus y. Perry, 513.
City of Atchison y. Bartholow, 60.
City of Athens y. Long, 460.
City of Atlanta y. Chattanooga Foun-
dry ft Pipe Works, 243, 244.
City of Aurora y. Scfaoeberlein, 88.
City of Austin y. Cahill, 780.
City of Baltimore y. Bonaparte. 94.
City of Baltimore y. Hussey, 453.
City of Baltimore y. Radecke, 438.
City of Baltimore y. State, 69, 80, 87,
511.
City of Baltimore y. Ulman, 758.
City of Baton Rouge y. Butler, 875u
City of Beardstown y, Virginia, 77.
City of Beatrice y. Wright. 59, 583.
City of Belleyille y. St Clair County
Turnpike Co., 422, 485, 439. 570, 586.
City of Bloomington y. Heiland, 679,
694.
City of Bloomington y. Wahl. 519.
Ci^ of Brooklyn y. Nassau Electric R.
Co., 405.
City of Buffalo y. Linsman, 404.
Ci^ of Buffalo y. Reayey, 249.
City of Burlington y. Bumgardner, 467.
City of Burlington y. Kellar, 518.
City of Cambridge y. Boston, 89.
City of Carbondale y. Wade. 732.
City of Centralia y. Smith, 404.
City of Champaign y. Harmon, 515.
City of Chicago y. Cook County, 518.
City of Chicago y. Gunning System,
City of Chicago y. Knobel, 574.
City of Chicago y. McDonald. 428.
City of Chicago y. Netcher, 400.
City of Chicago y. O'Brien, 423.
CSty of Chicago y. Openheim, 409.
City of Chicago y. Pulcyn, 495.
City of Chicago y. Reeyes, 50.
City of Chicago y. Rumpff, 519.
Ci^ of Chicago y. Taylor, 495.
City of Chicago y. Wells, 572. 577, 584.
Bi..CONfT.L.OD.ED.>— 49
City of Cleyeland t« Oleyeland City,
742.
City of Cleveland y. U. S., 746.
City of Corinth y. Crittenden, 896.
City of Covington y. Covington Gas-
light Co., 443.
City of Covington y. Kentucky, 741,
744.
City of Creston y. Nye, 698.
City of Cumberland y. Willison, 494.
City of Danville v. Noone, 561.
City of Delphi y. Hamling. 514.
City of Denver y. Bach, 552.
City of Des Moines v. Keller, 488.
City of Detroit y. Daly, 486.
City of Detroit y. Detroit Citiiens' St
R. Co., 742.
City of Detroit y. Detroit ft H. P. Road
Co., 731, 741.
City of Detroit y. Rush, 649.
City of East Portland y. Multnomah
County, 459.
City of Elkhart y. Murray, 407.
City of Emporia v. Volmer. 086.
City of Evansville y. State, 87, 329, 514,
674.
City of Ft Madison y. Ft Madison
Water Co., 780.
City of Geneva v. Geneva Tel. Co., 897.
City of Glasgow v. Bazan, 403.
City of Grand Rapids v. De Vries, 568.
City of Hartford v. Maslen, 511.
City of Helena v. Kent, 423.
City of Hudson v. Thome, 564.
aty of Indianapolis v. Bieler, 221.
Ci6r of Indianapolis v. Central Trust
Co., 742.
City of Indiananolls y. Consumers* Gas
Trust Co., 728.
City of Jackson v. Williams, 472.
City of Janesville v. Milwaukee ft M.
R. Co.. 515.
City of Joplin v. Leckie, 514.
City of Knoxville v. Knoxville Watw
Co., 742.
City of Laurens y. Anderson, 552.
City of Laurens v. Elmore, 250.
City of Leavenworth v. Ewing, 248.
City of Lexington v. McQuillan's Heirs,
442.
City of Lexington y. Thompson, 60.
City of London v. Wood, 57.
City of Los Angeles y. Los Angeles City
Water Co.. 722, 728, 742.
City of liOuisville v. Com., 871.
City of Louisville y. Roberts, 710.
Ci^ of Madison y. Madison Gas ft
Electric Co., 415.
City of Madison y. Wade, 649.
City of Marion y. R;obert8on, 421.
City of Maysville y. Wood, 516.
City of Memphis v. Bnsley, 466.
City of Memphis y. Memphis Water
Co., 562.
City of Biinneapolis y. Janney, 868»
456^ 457.
City of Mobile y. Phillips, 252.
City of MobUs y. Yullle, 42&
770
CASES CITSD.
[Til* flfiirM refer to paces.]
City of Naahville t. Bank of T^nneBsee,
Citj of Naahville ▼. linck, 530.
City of New Castle v. Cutler, 249.
City of New London t. Miller, 441.
City of New Orleans y. Davidson. 463.
City of New Orleans t. Faber, 600.
City of New Orleans v. Houston, 744.
City of New Orleans v. Kaufman, 462.
City of New Orleans w. Murat, 559.
City of New Orleans y. New Orleana
Waterworks, 785.
City of New Orleana y. People's Ini.
Co., 466.
City of Newton v. Lewis, 72a
City of New York, In re, 585, 586, 746.
City of New York v. Brown, 423.
City of New York v. Miln, 435.
City of New York y. M. Wineburgh Ad-
vertising Co., 439.
City of New Yoik y.. New York City
City of Norfolk y. Norfolk Landmark
Pub. Co., 659.
City of Oak' Cliff y. SUte, 372.
City of Ottumwa y. City Water Supply
Co., 189.
City of Paterson v. Society for Estab-
lishing Useful Manufactures, 507.
City of Pekin v. Brereton, 491.
City of Perry v. Davis ft Younger, 585.
City of Philadelphia v. Fox, 3i4, 506,
507 516 743.
City of Philadelphia v. Lombard & S.
St. Pass. R. Co., 374.
City of Philadelphia v. Wards, 404.
,City of Pittsburg v. First Nat. Bank,
447.
City of Portland v. Bangor, 53&
City of Portland v. Meyer, GOO.
City of Redlands v. Brook, 757.
City of Rochester v. West, 424.
City of Rome v. Whitestown Water-
works Co., 480.
City of Rushville v. Rush vi He Natural
Gas Co., 480, 742.
City of St. Charles v. Stookey, 190.
City of St. Louis v. De Lassus, 397.
City of St. Louis v. Dorr, 490.
City of St Louis y. Eagle Packet Co.,
361.
City of St Louis v. Fischer, 404.
City of St. Louis v. doner, 404, 53a
City of St Louis v. Karr. 537.
City of St. Louis v. McCann, 411.
City of St Louis v. Marchel, 603.
City of St Louis v. Richeson, 570.
City of St. Louis v. Schoenbusch, 398.
City of St Louis v. Shields, 64.
City of St Louis v. United Rys. Co.,
745.
City of St Louis v. Wiggins Ferry Co.,
City of St Louis v. Wortman, 252.
City of St Paul v. Haughbro. 405.
City of St Paul v. Schleh, 520.
City of Salem v. Maynes, 396.
City of San Antonio y. Gould, 886^
City of Seattle y. Huxst, 787.
City of Seattle v. Smyth, 416.
City of Seymour y. Jeffer8<mville, M. &
I. R. Co., 485.
City of Sherman v. Langham, 736.
City of Shreveport v. Levy, 519^581.
City of Springfield v. Edwards, 77.
City of Springfield v. Smith, 729.
Ci^of Talladega v. Fltspatrick, 398,
Ci^ of Terra Haute v. Evansville &T.
H. R. Co., 8a 738.
City of Terra Haute y. Farmexa' Loan
& Trust Co., 26.
City of Toledo, The, 157.
City of Topeka v. Gillett, 370.
City of Utica t. Churchill, 44a
City of Valparaiso v. Hagen, 480.
City of Vldcsburg y. Vicksburg Water-
works Co., 741.
City of Watertown y. Rodenbaugh, 55Z
City of Westport v. MulhoUand, 729.
City of Zanesville v. Zanesville Tel. ft
Tel. Co. 93.
CitY R. Co. Y. Citisens' St R. Co., 728,
731.
City Street Imp. Co. y. University of
California, 352.
City & County of San Francisco y
Mackey, 465, 466.
City & County of San Francbco v.
Western Union Tel. Co., 445, 448.
Civic Federation v. Salt Lake County,
368.
Civil Rights Cases, 548.
Claflin v. McDermott 298.
Clapp V. Houg, 592.
Claremont R. & Lighting Co. y. Putney,
475.
Clarence Tp. y. Dickinson, 59.
Clare v. State, 67.
Clark V. Barnard. 170.
Clark V. Bever, 188» 195.
Clark Y. Guy, 147.
Clark Y. Kansas City, 549.
Clark Y. Mitchell, 572.
Clark Y. Nash, 476, 481.
Clark Y. Rochester, 441, 444.
Clark Y. Russell, 40a
Clark V. State, 539.
Clark Y. Tltusville. 552.
Clark V. Washington, 374.
Clark V. Wells, 190.
Clarke, Ex parte, 650.
Clarke v. Philadelphia, W. 4s B. R. Co.,
247.
Clarke v. Rogers, 375.
Clarksburg Electric Light Co. y. Clarks-
burg. 7^ 731, 735.
Claussen v. Luveme, 26.
Claybrook v. Owensboro, 555.
Clear Creek Water Co. v. Gladeville Imp.
Co., 482.
Clearwater Mercantile Co. v. Roberta,
Johnson Rand Shoe Co^ 591.
Cleland y. Anderson, 421, 43a
CA8BS CITED.
[Th« figures refer to pagM.]
771
Glemem t. Belford, 2G6.
Clement y. Babbach, 570.
Cleveland, In re, 338.
Cleveland r. Clements Bros. Const Co.,
416.
Cleveland, C, C. & St. L. B. Co. v. Back-
us, 546. 570.
Cleveland, C, 0. & St. L. B. Co. v.
Feiabt, 489.
Cleveland, C, C. & St L. B. Co. v. Por-
ter 554
Cleveland,* etc.. B. Co. v. Illinois, 231.
Clifford V. Heller. 315, 322.
Clifford V. U. S., 28.
Clinton Bridge, In re, 12a
Clinton v. Englebrecht, 142.
Close V. Potter. 74a
Cloud V. U. S., 115.
Clyde V. Bailroad Co., 172.
Coal Co. y. Blatcbford, 165.
Coal-Float v. Jeffersonville, 518.
Coaticook y. Lothrop, 412.
Cocheco Mfg. Co. v. Strafford, 625.
Cocbran v. Preston. 424.
Coe V. Errol, 248, 360.
CoBur D'Alene Consol. & Min. Co. v.
Miners' Union of Wardner, 420, 422.
Coffeyville Vitrified Brick & Tile Co. v.
Perry, 421.
Coffin V. Coffin, 344, 625.
Coggesball v. Des Moines, 649.
Cohen v. Virginia. 34. 173, 276.
Cohn V. Townsend, 547.
Cole v. La Grange, 454, 458.
Cole V. Van Ostrand, 74a
Coleman v. Board of Education of
Emanuel County. 376.
Coler V. Board of Com*rs of Stanly Coun-
ty. 151.
Collection of Poll Tax, In re, 681.
Collector v. Day. 451.
Collet V. Collet. 257.
Collier & Cleveland Lithograpbing Co.
V. Henderson. 365.
Collin County Nat Bank v. Hugbes, 152.
Collins v. Henderson, 80, 352.
Collins y. State, 083.
Collins y. U. S., 128.
Colon y. Lisk, 579.
Colorado Fuel & Iron Co. y. Soutbem
Pac. B. Co., 93.
Colson y. Lewis, 166.
Columbia Ave. Savings Fund, Safe De-
posit, Title & Trust Co. v. Dawson,
57a 732.
Columbia Val. B. Co. y. Portland & S.
B. Co., 153.
Columbia Wire Co. y. Freeman Wire
Co., 37.
Columbus Soutbem B. Co. v. Wrigbt,
553.
Columbus Waterworks Co. y. Long, 473.
Comer y. Bankbead, 541.
,Comer y. Burton-Liujro Co., 42a
Comer y. Folsom, 458.
Commerce, Tbe, 159.
Commercial Electric Ligbt ft P. Co. y.
Tacoma* 72&
Commercial Nat Bank y. lola, 36a
Com'rs, etc., of Nortbem Liberties v.
Nortbem Liberties Gas Co., 519.
Com*r8 of Central Park, In re, 479.
Com'rs of Leavenwortb County v. Hig-
ginbotbam. 382.
Com'rs of Sinking Fund v. George. 86.
Com'rs of Union Drainage Dist. No. 1
V. Smitb, 587. ,
Common Council of Detroit v. Board of
Assessors, 69.
Com. v. Abrahams. 669.
Com. V. Alger, 388.
Com. y. Allegheny County Com'rs, 333.
Com. v. Atlantic Coast Line B. Co., 61,
407.
Com. y. Balpb, 80.
Com. y. Barker, 27.
Com. V. Bamer, 67a
Com. y. Bavarian Brewing Co., 429.
Com. y. Beatty, 416.
Com. y. Bonnell, 417.
Com. y. Boston Advertising Co., 424,
490.
Com. V. Broad St Bapid Transit St,
B. Co., 469.
Com. V. Brown, 419, 453.
Com. V. Campbell, 438.
Com. y. Carter, 402.
Com. y. Caton, 58.
Com. y. Certain Intoxicating Liquors,
403.
Com.'v. Clark, 81, 560, 562.
Com. y. Cloary, 691.
Com. V. Collier, 93.
Com. y. Curren. 422.
Com. y. Dsna. 513.
Com. y. Davidson. 684.
Com. y. Davis, 682.
Com. y. Dean, 376.
Com. y. Deusten. 601«
Com. y. Duffy, 713.
Com. V. Emmers, 400.
Com. y. Essex Co.. 87.
Com. y. Fall Brook Coal Co., 466.
Com. y. Finn, 410.
Com. V. Fredericks, 517.
Com. y. Fuller, 703.
Com. y. Gaming Implements, 6ia
Com. y. Gardner, 713.
Com. y. Gibbons, 594.
ConL y. Gilbert, 434.
Com. y. Graves, 714.
Com. y. Green, 335.
Com. y. Gregory. 2ia 296.
Com. y. Griest, 62.
Com. V. Haly. 2a
Com. y. Hamilton Mfg. Co., 410w
Com. y. Hare, 308.
Com. y. Herr, 529.
Com. y. Hilton, 294.
Com. y. Hinds, 615.
Com. y. Hitchings. 78.
Com. y. Hunt, 422.
Com. y. International Harvester Ca, 36.
Com. y. Interstate Consol. St B. Co.,
413.
Com. y. KetLty, 219, 409, 648, 726.
772
CA8B8 CITED.
[Th« flsoTM refer to pac«t.1
Oom. y. Kelley, 712.
Com. T. KiugBbary, 375.
Com. T. Kneeland, 61, 531.
Ck>m. T. La Bar, 424.
Com. V. Lancaster Bar. Bank, 208w
Oom. T. Lehigh YaL B. Co., 448, 462.
Com. T. Lyon, 27.
Com. r. McCormick, 702»
Com. T. Mann. 462.
Com. t. Martin, 71.
Com. T. Mellet, 352.
Com. ▼. Mints, 411.
Com. T. Moir, 514, 734.
Com. T. Morrison, 447.
Com. y. Mnrphy, 543^
Com. y. Myer, 249.
Com. y. Norton, 420.
Com. y. Patch, 400.
Com. y. Patton, 371.
Com. y. Pennsylyania Canal Co., 483.
Com. y. PeoK>le*8 Fiye Cent Bay. Bank,
459, 404.
Com. y. Perry, 418.
Oom. y. Peters. 700.
Com. y. Phiilips, 711.
Com. y. Read Phosphate Co., 246.
Com. y. Reinecke Coal Min. Co., 415.
Com. y. Remmel, 403.
Com. y. R. I. Sherman Mfg. Co., 29, 219.
Com. y. Bellinger, 360.
Com. y. Bhafer, 99.
Com. y. Shaleen. 292, 293^
Com. y. Smith, 58.
Com. y. Strauss, 427, 431.
Com. y. Vrooman, 414.
Com. y. Waite. 402.
Com. y. Walshes Trustee, 465.
Com. y. Walter, 675.
Com. y. Weir, 600, 734.
Com. y. Westinghouse Electric St Mfg.
Co.. 448.
Com. y. Wyatt, 707.
Com. V. Wyman, 718.
Com. y. Zorambo. 691.
Com. of PenuRylvania, In re, 537.
Commonwealth Title Ins. & Trust Co.
y. Cummings, 191.
Compagnie Fraucaise de Navigation a
yfu;>eur y. State Board of Health, 226,
Computation of Time, In re, 827.
Comstock Mill. & Min. Co. y. Allen, 75.
Conek y. Skeen, 343, 352.
Confiscation Cases. 606, 727.
Conklin y. United States Shipbuilding
Co., 150, 152.
Conley y. Woonsocket Inst., 618w
Connecticut Mut Life Ins. Co. y. Cush-
man, 750.
Connecticut Mut. Life Ins. Co. y. Sprat-
ley, 743.
Conner v. Elliott. 292.
Conner y. New York, 734.
Connolly y. Union Sewer Pipe Co., 244
427, 552.
Oonrades, In re, 611.
Considine, In re, 415.
Consolidated Gas Co. y. Mayer, 646.
Consolidated Gas Co. y. New York, 546.
Consolidated Rendering Co., In re, 594,
610.
Consolidated Rendering Co. y. Vermont,
84, 546, 610, 687.
Constitutional Oonyention. In re, 49.
Constitutionalibr of Substitute for Sen-
ate Bill No. 83, In re, 496.
Consumers' Gas Trust Co. y. Elarless,
469.
Continental Fire Ins. Co. y. Whitaker
& DlUard, 551.
Continental Securities Co. y. Interbor-
ough Rapid Transit Co., 18&
Continental Wall Paper Co. y. Lewis
Voight & Sons Co., 238, 241.
Continuing Appropriations, In re, 866.
Contzen y. U. S., 259.
Converse, In re, 595.
Converse y. ^tna Nat Bank, 724, 747.
Converse v. Ayer, 603.
Converse y. Mears, 186, 18&
Conway v. Cable, 758.
Conyers y. Commissioners of Roads &
Revenues, 78.
Cook v. Board of Chosen Freeholders of
Middlesex County, 325.
Cook V. Daugherty, 333.
Cook y. Foley, 191.
Cook y. Hart, 308.
Cook y. Howland, 636.
Cook y. Pennsylvania, 227*
Cook y. Senior, 348.
Cook v. State, 650.
Cook County v. Healy, 80.
Cooke v. Iverson, 95.
Cooley v. Board of Wardens of Port of
Philadelphia. 220.
Coonradt v. Myers, 618.
Cooper v. Ash, 464.
Cooper V. Reynolds. 299.
Cooper y. Telfair, 59.
Cooper y. Utah Light ft R. Co.,. 80.
Co-operative Building & Loan Ass*n v.
State, 610.
Cooper Mfg. Co. v. Ferguson, 246.
Coopersville Co-operative Creamery Co.
V. Lemon, 09.
Copenhaver, In re, 750.
Copp V. Henniker, 623.
Coquillard's Adm'r v. Bearss, 349, 351.
Corbett v. Naylor, 344.
Corbin v. Houlehan, 545.
Corcoran v. Cambridge, 585.
Cordova y. State, 373.
Corfield v. Coryell, 292.
Corliss, In re, 106.
Cornell v. Hichens, 602.
Cornell University v. Fiske, 186.
Corning y. Troy Iron & Nail Factory,
622.
Corrigan y. Brown, 364.
Corrigan v. Kansas City, 554, 585.
Corrigan Transit Co. v. Sanitary Dist.
of Chicago, 221.
Corry y. Baltimore, 582.
CA8BS CITBD.
VThm tgmm refer to pactt.]
773
Corson t. Maryland, 248.
Cory T. CSarter. 555, 639.
Coaler y. McMillan, 449.
Cosmopolitan Chib v. Virginia, 576, 789.
Coster V. Tide- Water Co., 423.
Ck)stigan y. Bond, 78.
Cotting T. Kansas City Stock-Yards Co.,
172.
Coulthard v. Mcintosh, 29.
Connselman v. Hitchcock, 689.
County of Mobile y. Kimball, 220.
County of Wayne y. Detroit, 79.
County Seat of La Fayette Connty, In
re, 89.
Court of Honor y. Hutchens, 724.
Coutieri y. New Brunswick, 370.
Coyington y. Buffett, 344.
Covington & L. Turnpike Road Co. t.
•Sanford, 414.
Cowardin y. Uniyersal Life Ins. Co.,
636.
Cox, Ez parte, 374.
Cox, In re, 685.
Cox y. State, 320.
Craig, In re, 144.
Craig y. Planagin, 618L
Craig y. Missouri, 357.
'Craig y. United States Health & Acci-
dent Ins. Co., 567.
Crandall y. Nevada, 292, 449, 641.
Crane. In re, 176.
Crane's Will, In re, 516.
Crauor v. School Dist No. 2, 748.
Cranor y. Volusia County Com'rs, 757.
Cranson y. Smith, 204.
Cranston y. Augusta, 396.
Cravens y. Carter-Crume Co., 240, 241.
Crawford y. Delaware, 489, 494.
Crawford y. Eidman, 14.
Crecelius y. Bierman, 662.
Crescent City Gaslight Co. y. New Or-
leans Gaslight Co., 562.
Crescent City live-Stock Co. y. Butch-
ers' Union Slaughterhouse Co., 300.
Croly y. Board of Trustees of City of
Sacramento, 98.
Cronin v. Adams, 547.
Crouise v. Cronise. 80, 786i
Crook V. People, 743.
Cross y. Eivans, 150.
Crossman v. Lurman, 250.
Crossman v. U. S., 21.
Crossweirs Petition. In re, 538.
Crouse, Ex parte. 626.
Crowell y. Randell, 17a
Crowley y. Christensen, 402.
Crowley y. Ellsworth, 39a
Crowther y. Fidelity Ins., Trust ft Safe-
Deposit Co., 724.
Crozer v. People, 459.
Cruikshank y. Bidwell, 97.
Crump V. Ligon, 428.
Crump's Case, 421.
Crutcher v. Kentucky, 249.
C. Scheerer & Co. v. Deming, 64.
Cullman y. Arndt, 295.
Cumberland Telephone k Telegraph Ca
V. Hickman, 7&,
Cumming v. County Board of Educa-
tion, 555.
Cummings t. Chicago, 153.
Cummings y. Missouri, 678, 708, 709,
715.
Cummings y. Union Blue Stone Co., 429.
Cummings v. Wlngo, 293.
Cunningham y. Macon & B. B. Oo., 171.
Cunningham v. Sprinkle, 86, 817.
Cunnius v. Readins School Dist., 692.
Curran, In re, 487, 595.
Curran y. Arkansas. 357.
Curran y. Craig, 182.
Currier v. Marietta ft O. R. Oa^ 476^
Curry v. Curry, 622.
Curtis, Ex parte, 285. •
Curtis* Will, In re, 599.
Cusic y. Douglas, 603.
Csarra y. Board of Medical Bup'rs, 288.
Czarra y. Board of fiup'ra of Dist of
Columbia, 732.
Dafrgett y. Colgan, 368.
Daily Register Printing ft Pah. Oo. y.
New York, 98.
Daily v. State, 81&
Dakota County y. Qiicago, St P., M. ft
O. R. Co^453.
Dallas y. Fosdick, 555, 568.
Dallemagne v. Moisan, 678.
Dallis y. Griffin. 600.
Dana, In re, 629.
Danforth v. McCook County, 448.
Daniel Ball, The, 221.
Daniel y. Trustees Richmond, 29S.
Daniels y. Homer, 579.
Daniels y. SUte, 320.
Danolds y. State. 727.
Danville y. Hatcher, 642.
Danville Rolling Mill Co., In ra, 467.
Darcy y. Allein, 560.
Darcy v. Allen, 84.
D'Arcy v. Ketchum, 296, 299.
Darling y. Berry, 261.
Darlington v. U. S., 47L
Darrington v. Bank of Alabama, 172,
357.
Darst y. People, 678L
Dartmouth Cfollege y. Woodward, 788,
743. .
Dfln vTVan Kleeck, 89.
Dassler, In re, 542.
Dastervignes v. U. S., 99, 287.
Daughdrill y. Alabama Life Ina. ft
Trust Co., 464.
Davenport, In re, 252.
Davenport y. Cloverport, 555.
Davenport v. Kleinschmidt 564.
Davenport Gas & Electric Oo. v. Dayen-
port, 562.
Davidson y. Calkins, 150.
Davidson y. Jennings, 6l&
774
CASES CITED.
CTIm flffOTM refer to pactt.]
Daridson t. New Orleans, 570, 58S.
Dayidaon t. Ricbardaon. 730, 747.
Daridaon t. Sadler, 600.
Davidaon t. State, 700.
Davidaon t. Witthana, 008.
Davis, In re, 340.
Davia y. A. Booth & Co., 23&
Davis y. Beaaon, 533.
Davis v. Baness, 537.
Davia y. Burke, 680.
Davis y. Gray, 171.
Davis V. Massacbasetts, 652.
Davis y. Packard, 156.
Davia v. Police Jury of Parish of Con-
cordia, 124.
Davis y. Soathem R. Co.. 232.
Davis y. Sute, 26, 517, 088, 701, 714.
Davis y. Supreme Lodge, Knights of
Honor, 747.
Davis Coal Co. v. Polland, 417.
Davis* EsUte, In re, 502.
Davis & Rankin Bldg. & Mfg. Co. y.
Caigle, 246.
Day, In re, 340, 601.
Day y. Micou, 719.
Day y. Savadge, 57.
Day Land & Cattle Co. v. State, 379.
Deal V. Mississippi County, 368.
Deatrick's Adm'r v. State Life Ina. Co.,
293.
Deavitt v. Washington County, 484.
De Baca v. U. 8., 259.
Debbs, In re, 240.
Debnam v. Southern Bell Telephone &
Telegraph Co., 636.
Debolt y. Ohio Life Ina. & Trust Co.,
441.
Debs, In re, 236, 240, 685.
Decatur v. Paulding, 95, 121.
De Cbastellux v. Fairchild, 88b
Decie v. Brown, 403.
Deck's Estate v. Gherke, 384.
Decuir v. Benson. 559.
Deering v. York & C. R. Co., 66.
Deering & Co. v. Peterson, 368.
De Ferranti v. Lyudmark, 71, 721.
De Geofroy v. Riggs, 22.
De Giacomo, In re, 715.
De Grazier v. Stephens, 293.
Deininger, In re, 2a2.
Delanlaine v. Chicago & N. W. R. Co.,
Delaware, L. 4s W. R. Co. y. Frank, 240,
241.
Delaware Railroad Tax, 248, 746.
Delaware Surety Co. v. Lay ton, 316.
Del Castillo v. McConnico, 59.
De Lima v. Bidwell, 21, 259, 278.
Delk v. State. 695.
Delmas v. Merchants' Mut. Ins. Co., 721.
De Loney v. State. 29.
De Lovio v. Bolt, 160.
Demarest y. New York, 743, 744.
De Merritt v. Weldon, 70, 100.
Denike v. Rourke. 452.
Denison v. Crawford County. 351.
Dennick y. Central R. Co., 186.
Dennis v. Moses, 577.
Denny, In re, 51.
Denny y. McCabe, 599.
Denny y. Mattoon, 597.
Dent v. West Viiginia, 400.
Denver v. Hubbard, 5^
Denver v. Porter, 185.
Denver Power ft Irrigation Co. y. Den-
ver & R. G. R. Co., 481.
De Pas y. Bidwell, 710.
Deposit Bank of Owensboio y. Daveiss
County, 454.
Dequindre v. Williams, 89.
Des Moines City K, Co. y. Des Moines,
722.
Des Moines St R. Co. y. Des Moines
B. G. St. R. Co., 562.
Detroit City Ry. y. Mills, 67.
Detroit, Ft. W. & B. I. R. Co. y. Os-
iK)m, 406.
Detroit Nat. Bank v. Blodgett, 340.
Detroit United Ry. v. Nichols, 190.
Devanney v. Hanson, 633.
Devine v. Board of Com'rs of Cook Coun-
ty, 371.
Devlin y. McAdoo, 60a
Devoll v. Brownell, 687.
De Walt y. Bartle^, 649.
Dewey v. Des Moines, 584.
De Witt v. San Francisco, 383.
Dexter y. Boston, 59.
Dexter v. Raine, 455.
De Zbranikov v. Burnett 759.
Diamond Match Co. y. Ontonagon, 24&
Diamond Rings, The, 21.
Diamond State Iron Co. y. Husbands,
598.
Dickenson y. Fitchburg, 501.
Dickson, ESx parte, 304.
Diepenbrock v. Superior Court of Sac-
ramento County, 550.
Dig, Ex parte, 539.
Dlggs V. Wolcott 181.
Dille V. State, 696.
Dillingham v. Hook. 726.
Dillon V. Erie R. Co., 742.
Dillon v. State, 682.
Dimmit County v. Frasier, 368.
Dingley v. Boston. 458, 482.
Divina Pastora, The, 134.
Dixon v. Porter, 446.
Dixon County v. Halstead, 447.
Doane, Appeal of, 359.
Dobbins v. Erie County, 449.
Dobbins v. First Nat Bank of Peoria,
597.
Dobbs y. U. S., 117.
Dr. Miles Medical Co. y. Jaynes Drug
Co.. 242.
Dr. Miles Medical Co. v. John D. Park
& Sons Co., 242.
Dodd V. Hart, 586.
Dodge y. Mission Tp., Shawnee County,
Kan., 454, 456.
Dodge v. Woolsey, 164, 72^
Dodson y. State, 557.
Doe y. Braden, 102^
[Hm flsuTM r«tor to pacts.]
Doe T. Hearick, 446.
Doebler t. Com., 688.
Doehla t. PhUlips, 74&
Domestic St Foreign Miisioiiary Soc. y.
Hinman, 181.
Donaldson t. Hanrey, 77.
Donnellan, Ex parte, 5S2.
Donnell ▼. State, 548.
Donnersberger t. Prendergast, 888, 385.
Donovan t. Pitcher, 291*
Dooley y. Smith, 213.
Doo woon. In re, 306.
Dorr y. U. S., 21, 258, 27a
Dorsey y. Brigham, 637, 638L
Dortic y. Lockwood. 629.
Doss y. Boai^d of Gom'rs of Mermentau
Leree Dist., 66.
Doty y. Strong, 200.
Do^hty y. Someryille 4s B. R. Co., 497,
Douglas y. Kentacky, 735.
Douglas y. People, 410.
Douglas County v, Moores, 576.
Douglas Park Jockey Club y. Grainger,
545.
Douglass y. Harrisyille, 460.
Douglass y. State, 701.
Dow y. Beidelman, 413.
Dowdell, In re, 538.
DowliDg y. State, 620, 684.
Downes y. Bidwell, 21, 117, 259.
Downing y. Lewis, 430.
Downs y. Blount, 605.
Downs y. Swann, 535.
Doyle y. Continental Ins. Co., 195.
Dozier v. Wilson, 261.
Draco, The, 161.
Drady y. Polk County District Court,
90.
Drayton, Appeal of, 363.
Drayton, Ex parte, 438, 542.
Dred Scott y. Sanford, 632.
Drehman y. Stifle, 753.
Drew y. Cass, 293.
Drexel, Ex parte, 412.
Dreyer y. Illinois, 67&
Dreyer y. People, 702.
Dreyfus y. Boone, 388, 561.
Drinkall y. Spiegel, 304.
Driver y. Western Union R. Co., 499.
Droit d'Aubaine, In re, 123.
Drucker y. Manhattan R. Co., 484, 491.
Dubu<iue ft S. C. B. Co. y. Richmond,
229, 233.
Ducat y. Chicago, 295.
Dnffield y. Smith, 145.
Duffield y. Williamsport Sdiool Dist,
390.
Duluth & L R. Co. y. 8t Louis County,
741.
Dunbar y. American Telephont St Tele-
graph Co., 482.
Duncan, In n, 810.
Duncan y. I^pchbuig, 515.
Duncan y. Biissouri, tU*
Duncan t. SUte, 246.
Dundee Mort Trust Iny. Co. y. School
Dist No. 1, Multnomah County, 464.
Dundee Mort. St Trust Iny. Co. y.
School Dist No. 1, 468.
Dunlap y. State, 788.
Dunlap y. Toledo, A. A. ft 0. I. R. Co.,
484 602.
Dunlap v. U. S., 100, 287.
Dunne y. People, 397, 408.
Dunn y. Stevens, 749.
Dupree, Ex parte, 403.
Durein y. Kansas, 642.
Durfee y. Harper, 50.
Durgin y. Minot, 482.
Duryea y. Muse, 292. 643.
Dust y. Oakman, 820. 321.
Dyer v. Baltimore, 480.
Dyer y. Tuskaloosa Bridge Co., 483.
Dyer y. Woods, 585.
I^es y. Hoover, 143, 145.
Eakin y. Raub, 59.
Eames y. Whittaker, 661.
East Canada Creek Electric Light ft
Power Co., In re, 473, 480.
Eastern Band of Cherokees y. U. S.,
126.
8}astem Kentucky Coal Lands Corp. y.
Com., 350.
Eastern Wisconsin R. ft li^t Co. y.
Hackett, 518.
East India Co. y. Sandys, 561*
Eastling y. SUte, 556.
Eastman y. McCarten, 760.
East Saginaw Salt Mfg. Co. y. East
Sadnaw 745
Eaton y. Boston, C. ft M. R. Co., 490.
Eaton ft H. R. Co. y. Hunt, 338.
E. Bement ft Sons y. National Harrow
Co., 242, 244.
Eberle, In re, 294.
Eckerson v. Des Moines, 85, 68, 70, 83,
310, 811, 352, 875, 506.
Eckhart y. State, 74.
Eckrich y. St Louis Transit Co., 618.
Economic Power ft Const Cow y« Bnf-
falo, 69.
Eddy T. Eddy, 182.
Edelstein y. Carlile, 604.
Edeerton y. Huff, 475.
Edler y. EMwards, 69.
Edmands v. Boston, 499.
Edson y. Crangle, 579.
Edwards y. Elliott 619.
Eidwards y. Kearsey, 749.
Edwards v. Railroad Co., 360.
Edye y. Robertson, 208.
Edye y. Robertson (head Money Cases),
Bgan, In re. 664.
Egan y. Chicago Great Western R. Co.,
190.
Egyptian Levee Co. v. Hardin, 458L
Ehrtich T. Weber, 684.
776
CA8BS CITED.
CTIm flffOTM refer to paces.]
Eight-Hoar BiU, In re, 417.
Eingartner t. lUinoki Steel Ck>.. 283, 604.
Einstein v. Raritan Woolen Mills, 726.
Elfand v. Southern R. Co., 660.
Eliza Ann, The, 270.
Elkins T. Chicago, 162.
Elkins Electric R. Co. y. Western
Maryland R. Co., 486.
Elk V. Wilkins, 637.
Ellard, In re, 68.
Ellis ▼. Frazier, 466.
Ellis y. Inman, Poulsen & Co., 237, 240,
241.
Ellison y. Barnes, 344.
Ellsworth, M'. N. & S. E. R. Co. y. Max-
well, 600.
Elmendorf y. Elmendorf, 681.
Elmore y. Fields, 26.
Elting y. Hickman, 367, 462.
Elwell y. Comstock, 88.
Emerson y. McNeil, 411.
Emery, In re, 347, 687.
Energia, The, 223.
Enfield Toll Bridge Co. y. Hartford &
N. H. R. Co., 4&, 483, 731.
English y. Oliver, 466.
English y. People, 36a
English y. State, 643, 680.
Ensign y. Barse, 80, 606.
Ensley Development Co. y. Powell, 362.
Entick y. Carrington, 612.
Epping y. Columbus, 78, 78, 80.
Bpps y. State, 687.
Erb y. Morasch, 261, 406, 601.
Erdman y. Mitchell. 418, 421.
Erickson y. Des Moines, 362.
Erie R. Go. y. Steward, 486.
Brie & J. K Co. y. Brown, 485.
Escanaba & L. M. Transp. Co. y. Chi-
cago, 233.
Esmond, In re, 146, 681.
Espenson y. Koepke, 428.
Estep y. Com., 607.
Etchison y. Pergerson, 662.
Evans y. Durango Land Co., 153.
Evans v. Eaton, 260, 721.
Evans y. Foster, 706.
Evans y. Jordan. 267.
Evans y. U. S., 602.
Evansville & H. Traction Co. y. Hen-
derson Bridge Co., 474, 486.
Eyerett y. Independent School Dist.,
161.
Everett y. Union Pac. R. Co., 497.
Evergreen Cemetery Ass'n of New Ha-
ven y. Beecher, 478.
Evers y. Hudson, 71, 362.
Evey y. Mexican Cent R. Co., 180.
Ewell y. Daggs, 747.
Ewing y. Filley, 626.
Exchange Bank Tax Cases, 768.
Extradition Case, 303.
Fair, In re, 14, 703.
Fairbank y. u. S., 80.
Fallbrook Irr. Dist. y. Bradley, 186, 376,
581.
Fallsburg Power ft Bifg. Co. t. Alex-
ander, 476, 477.
Fanning v. Gregoire, 222.
Fargo y. Michigan, 247.
Farmers' Loan & Trust Co. y. Chicago,
P. ft 6. R. Co., 70.
Farmers' Loan & Trust Co. y. Meridian
Waterworks Co., 728.
Farmers* Loan ft Trust Co. y. Northern
Pac. R. Co., 266.
Farmers' Nat. Bank y. Jones, 171.
Farmers' & Mechanics' Nat. Bank T.
Dearing, 286.
Farmers' ft Merchants' Ins. Co. y. Dol>-
ney, 660.
Famham y. Sherry, 446.
Farnsworth y. Lime Rock R. Co., 78.
Famsworth Loan ft Realty Co. y. Com-
monwealth Title Ins. ft Trust Co..
602.
Farrell y. U. S., 101.
Farrelly y. Cole, 326, 842.
Farrelly y. Woodfolk, 178.
Farrington y. Tennessee, 738^ 744.
Farrow, In re, 130.
Farrow y. State, 656.
Farwell y. Cambridge, 501.
Farwell y. Rockland, 734.
Fayerweather y. Dickinson, 587.
FederalUt, The, 311.
Federal Lead Co. y. Swyers, 187, 188.
Feizel y. Trustees of First Qeiman Soc.
of M. E. Church, 633.
Fellows y. Charleston, 424.
Fellows y. Denniston, 366.
Fell y. State, 403, 732.
Felty y. Uhler, 466.
Fenn y. Holme, 181.
Fenton, Ex parte, 701.
Fenton, In re. 686.
Fenwick v. Gill, 70.
Ferguson y. Gies, 648.
Ferguson y. Landram, 65.
Ferris y. Ooover, 202, 337«
Fesler y. Brayton, 64.
Fetter, In re, 302.
Ficklen y. Shelby County Taxing Dist,
248.
Fidelity Trust ft Guaranty Co. y.
Fowler Water Co., 616.
Field y. Barber Asphalt Pay. Co., 238,
241, 246.
Field y. Clark, 87.
Field y. Des Moines, 386.
Field y. Gibbs, 288.
Field y. People, 78.
Fielder y. Missouri, K. ft T. R. Co., 232.
Fifeshire, The, KJO.
Fife v. State, 643.
Fifth Aye. Library Soc. y. Hastie, 2i(L
Fight y. State, 078.
Fink y. Milwaukee, 700.
Finlayson y. Peterson, 759l
Finley y. Philadelphia, 448l
Finley y. State, 700.
CASB8 CITBD.
ITh« flgnrM refer to paces.]
777
Fire Abs*!! of Philadelphia v. New York,
657.
Fire Department t. Helfenstein, 205.
Fire Department of City of New York,
T. Atlas S. S. Co., 424.
Fire Department of City of New York
y. Stanton, 636.
Fire Department of West Troy v. Ogf-
den, e06L
Fire Extinguisher Mfg. Co. v. Graham,
266.
First Church in Boston y. Boston, 499.
First Nat Bank y. Commonwealth, 448.
First Nat. Bank y. Covington, 759.
First Nat. Bank y. Douglas County, 465.
First Nat Bank y. Bwing, 185.
First Nat. Bank y. Farwell, 448.
First Nat Bank y. Kentucky, 449.
First Nat Bank y. Yankton County, 19.
279.
Fischer y. Nell, 154.
Fischer y. St. Louis, 400, 404.
Fisher y. McGirr, 403, 579, 613» 614.
Fiske y. Pebple, 421.
Fisk y. Police Jury, 736.
Fite y. State, 87.
Fitts y. Atlanto, 403.
Fitts y. McGhee, 169, 172.
Fitzgerald v. Burrill, 14.
Flagg y. Bradford, 26.
Flagg y. Locke, 746.
Flannery y. People, 594.
Flaveirs Case, 323.
Flecten y. Laroberton. 366.
Fleischmann Co. y. Murray, 187.
Fleming y. Page, 117.
Fleming y. Trowsdale, 94.
Fleshman v. McWhorter, 617.
Fletcher y. Peck. 70, 709, 730.
Flinn y. Stote, 404.
Flint Riyer Steamboat Co. y. Foster,
69, 628, 630.
Flint & F. Plank Road Co. v. WoodhuU,
70, 85, 88.
Florida y. Georgia, 29L
Floumoy, In re, 325.
Floyd y. State, 702.
Flukes, In re, 293. 418, 545, 580.
Folsom y. Asper, 749.
Fong Yue Ting y. U. S., 22, 125, 393.
Foote, Bz parte, 398, 405.
Foote y. State, 707.
Foppiano v. Speed, 252.
Ford y. State, 90, 398.
Forest Products Co. y. Russell, 187.
Forgay y. Conrad, 179.
Forster y. Forster, 89, 758.
Forsythe y. Hammond, 73.
Forsythe v. TJ. S., 142.
Ft. Leavenworth R. Co. v. Lowe, 277.
Ft. Worth & R. G. R. Cow y. Downie,
492.
Foster, Ex parte, 705.
Foster v. Byrne, 749.
Foster y. Daniels, 313.
Foster y. Jones, 336.
Foster y. Kansas, 403.
Foster y. Master ft Wardens of Port of
New Orleans. 368L
Foster y. Morse, 630.
Foster y. Neilson, 124, 125.
Foster y. Chamberlain, 223.
Foster y. Rowe, 444, 583.
Foster-Milburn Co. y. Ohinn, 623.
Fowler y. Lindsey, 173.
Fowler y. Peirce, 328.
Fowler y. Wood, 29.
Fox, EiX parte, 271.
Fox y. Mohawk ft H. R. Humane Soc,
366, 574.
Fox y. State, 252.
Fox*s instate, In re, 571.
France y. State, 99, 293, 642:
Francis, In re, 593.
Francis y. Taylor, 431.
Francisco y. Chicago ft A. R. Co., 190.
Francois y. State, 557.
Frank, Bx parte, 520.
Frank y. Leopold & Feron Co., 181.
Frank A. Menne Factory y. Harback,
217.
Franklin County Court y. Deposit Bank
of Frankfort, 727, 740.
Franklin y. Hancock, 584.
Frank Waterhouse ft Co.'y. U. S., 596.
Frants y. Autry, 1, JS2, 54, 312.
Fraser v. McConway & Torley Co., 547.
Fray y. Blackburn, 12.
Frazee, In re. 403.
Frazer y. Chicago, 493.
Frederick County Com'rs y. Farmers* ft
Merchants* Nat Bank, 466.
Fred Macey Co. y. Macey, 164.
Freedman v. Si gel, 451.
Freeland y. Williams, 736.
Freeman y. American Surety Co., 164.
Fremont County v. Moore, 449.
Fremont, B. ft M. V. R. Co. y. Pening-
ton County, 69.
Fremont, E. ft M. V. R. Co. v. Whalen,
498.
French y. Davidson, 399.
French v. French, 637.
French v. State, 3.
French v. State Senate, 93, 343, 845,
349, 708.
Friend v. Levy, 89.
Fritz, Ex parte, 434.
Froelich y. Musicians' Mut. Ben. Ass*n.
430.
Frorer y. People, 418, 425.
Frost v. People, 579.
Fry V. State, 409.
Fuirett V. State. 556.
Fulno V. Schuylkill Stone Co., 123.
Fuller v. Plymouth County Com*rs, 508.
Funkhouser v. Spahr. 78, 80.
Furman St, In re, 494.
Gabbert v. Chicago, R. I. ft P. R. Co.,
50, 52.
Gabel v. Houston, 529.
778
CA8B8 CITBD.
(Th* flcuTM r«f«r to p«««t.]
Gage T. Chicago, 68S.
Gage T. Graham, 467.
Games y. Fuentes, 103.
Gaines v. Belf, 297.
Gaines, y. Thompson, 9Sw
Gale, Ex parte, &i.
Galpin t. Page, 296.
Galveston, H. & S. A. B. Go. r. Gibson,
417.
Galveston, H. & S. A. R. Co. v. Le
Gierse, 407.
Galveston, H. & S. A. R. Co. r. State,
247.
Gamble v. Rural Independent School
Dist, 729.
Gantly v. Ewing, 746, 750.
Garbade v. State of Bremen, 57.
Garcia v. Lee, 124.
Gardemal v. McWilliams, 661.
Gardina v. Board of Registrars of Jef*
ferson Countv, 257, 639, 649.
Gardner v. Collector, 114.
Gardner v. Sharp, 163.
Gardner v. State, 464^
Garej v. St. Joe Min. Co., 741.
Garfield v. U. S., 596.
Garland, Ex parte, 673, 709, 715.
Garland Novelty Co. v. State, 579.
Gamean v. Port Blakely Mill Co., 608.
Gamett y. Jennings, 593.
Garrigus v. State, 625.
Garrison v. Hollins, 630.
Garrison v. New York, 736w
Garvin v. Daussman, 578.
Garza v. State. 601.
Gaskin v. Meek, 371.
Gassies v. Ballon, 163.
Gaston v. Babcock, 625, 629.
Gatch Y. Des Moines, 581.
Gates Y. Bucki, 181.
Gates Y. Hooper, 428.
Gatewood v. North Carolina, 186, 899,
409.
Gattis Y. Griffin^ 600.
Gaylord v. Sanitary Dist. of Chicago,
476, 477, 481.
Gee Hop, In re. 260.
Geer v. Connecticut, 294.
Geiger v. Tacoma R. ft Power Oo.t 141.
Gelpcke v. Dubuque, 187.
Gelsthorpe v. Furnell, 461.
Gelston y. Hoyt, 101. 134, 179.
Gkmmer v. State, 524.
General Electric Co. v. Wise, 242.
General Oil Co. v. Crain, 26.
Genesee Chief, The. v. Eitxhagh, 168.
Gentry v. Griffith, 348.
Geofroy y. Riggs, 123.
G^rge Y. Chicago, R. I. & P. R. Co.,
578.
George Schuster ft Co. y. Louisville,
460, 462.
Georgia v. Stanton, 100, 111.
Georgia v. Tennessee Copper Co., 25,
174.
Georgia R. ft Banking Co. v. Smith, 739.
Georgia R. ft Banking Co. y. Wright,
24, 653.
Gerdan v. Davis, 399.
Geren v. Gruber, 443.
German Alliance Ins. Co. r. Van Qeave^
27.
Germania Ins. Co. v. Wisconsin, 155.
Gets Y. Brubaker, 89.
Gibbons v. Ogden, 34, 20S, 216, 219, 221,
286^ 399, 442.
Gibbs Y. McNeeley, 237, 240, 244.
Gibbs Y. Morgan, 372.
Gibson, In re, 63, 78.
Gibson y. Emerson, 334.
Gibson y. Mississippi. 711.
Gibson v. Templeton, 338.
Gidley y. Lord Palmerston, 13.
Gilbert v. American Surety Co., 189.
Gildersleeve v. People, 627.
Gilkeson v. Frederick Justices, 443, 461.
Gillender v. New York, 484.
Gillespie Y. People, 421.
Gillespie y. Pocahontas Coal Co., 187.
Gillette v. Aurora Rys. Co., 474, 475,
4S5.
Gilman v. Lockwood, 260.
Gilman v. Philadelphia, 202. 234.
Gilman v. Sheboygan, 457, 462, 745b
Gilmer v. Hunnicutt, 586.
Gil V. WilUams ft Davis, 350.
Giovanna, In re, 634.
Giozza Y. Tierman, 352.
Gladney v. Sydnor, 752, 753.
Glaser, In re, 176.
Glaspell Y. Jamestown, 93.
Glass V. Blackwell, 300.
Glenn, Ez parte, 702.
Glidewell v. Martin, 349.
Globe EUevator Co. v. Andrew, 220.
Gloucester Ferry Co. v. Pennsylvania,
22a
Glover v. State^ 249.
Glucose Refining Co. v. Chicago, 405.
Godbe v. Salt Lake City, 280.
Goddard, In re. 423.
Goddard v. Chicago ft N. W. R. Oo.,
408,475.
Goddard y. Lincoln, 617.
Godden v. Hales, 85.
Godfrey v. Bennington Water Co., 582.
Goetze v. U. S., 21, 117, 259, 278.
Golden v. Prince, 257.
Goldfield Oonsol. Mines Co. v. Goldfield
• Miners* Union No. 220, 421.
Golding Y. Collector of Borough of
Chambersburg, 465.
Good Y. Martin, 142.
Goodale v. Fennell, 512.
Goodall v. Tuttle, 261.
Goodbub Y. Hornung's Estate, 746L
Goodcharles v. Wigeman, 418,
Goode v. State, 710.
Goodin, Ex parte, 733.
Goodrich y. Detroit, 684, 685ii
Goodrich y. Ferris, 592.
Goodrich v. Mitchell, 566.
Goodrich's Etetate, In re, 68.
Goodwin y. Young, 368.
Goodyear y. Providence Rubber Go.,
628.
CASES CITED.
(Th* flgnrM refe^ to !»«(
Gordon, In re, 17^
Gordon y. Appeal Tax Court, 744.
Gordon y. Kerr, 125.
Gordon v. State, 370.
Gordon y. Winchester Building & Ac-
cumulating Fund Ass'n, 561.
Goree v. State, 531.
Gorman y. Sinldng Fund Com'rs, 80.
Gorrell v. Newport, 503.
Gospel Y. New Haven, 162.
Gotcheus y. Matheson, 647.
Got hard y. People, 410.
Gougar v. Timberlake, 645.
Gould Y. Gould, 567.
Governor of Georgia y. Madrazo, 174.
Governor's Proclamation, In re, 326,
343.
Gow v. Bingham, 391, 895, 535i.
Gowen v. Shute, 357.
Grace, Ex parte, 685.
Graff Y. Ackerman, 446.
Graham, £x parte, 701.
Graham y. FolsooL 727.
Graham y. Greenville, 508.
Graham v. Roberts, 71, 375.
Graham v. St. Joseph Tp., 441.
Grainjrer v. Douglas Park Jockey Club,
59, 08, 70, 437, 550. *
Grande Ronde ESectrical Co. y. Drake,
47a
Grand Rapids ft I. R. Co. y. Osbom, 65.
Granniss v. Cherokee Tp., 756.
Grant v. Gould, 144.
Grant Y. Grant, 736.
Grant Y. Lansdon, 316.
Grnnt y. Phoenix Mut Life Ins. Co.,
179.
Grant y. Secretary of State, 13.
Gravenberg v. Laws, 191.
Gray v. Building Trades Council, 574.
Gray v. Kimball. 579. 592. 614.
Gray y. Pentland. 319, 672, 695.
Gray v. U. S., 101.
Grayson v. Virginia, 174.
Greason v. Keteltas, 630.
Great Falls Power Co. v. Great Falls
O. D. R. Co., 479.
Great Northern R. Co. y. Kalispell Lum*
ber Co., 255.
Great Southern Fire Proof Hotel Co. y.
Jones. 164. 576.
Greek- American Sponge Co. y. Richard-
son Drug Co., 218.
Greely v. Towusend, 337.
Green, In re, 106.
Green y. Riddle, 726.
Green y. Com., 104.
Green v. Savannah, 400.
Green y. State Board of Canvassers, 51.
Green y. State, 691.
Green v. Van Buskirk, 179.
Greencastle Tp. v. Black, 79.
Greene v. James, 614.
Greene y. State, 64.
Greenough y. Greenough, 89.
Greenville &, C. R. Co. v. Partlow, 499.
Greer v. Payne, 429.
Gregory v. SUte, 339, 706.
Grenada !
Grether ^
Grey v. 1 1
Gribben, I
Gridley i .
Griebel v
Griffin v.
Griffin v.
Griffin v.
Griffin y.
Griffin's !
Griffiths, I
Griggs v.
Griggsry I
Grimley, I
Grinad y.
Grinage i
60, 67.
Griner, In
Griner y.
Grinky y.
Grissell V.
Griswold
Griswold
Groel v.
Jersey, I
Gross, In
Gross Y. ]'
Grover, Si
Gubner v.
Guckenhe
Guden, In
Guild V. <;
Guilfoyle*!!
Guitermai:
Gulf, C. .!
Co., 231
Gulf, C. .!
Gulf, C. ^i
Co., 220
Gulf, C. ^1
Gulf & S.
745.
Gundling <
Gunn, In
Gunn V. ]l
Gunn v. i\
Gunn Y. II
Gunter y.
27, 151,
Gustavel i
Guthrie N
Guy V. Bj;
Guy Y. Bi
land Coi
Habana, ^
Hacker v.
Hackley v
Hadley-Dc
land Gls
Hagan v.
Hagany v
Hagar, E:
Hagar v.
6S6.
780
CA8B8 CITED.
CTiM flgOTM rater to p«c«*.]
Hager T. Americftn Nat. Bank, 186.
Hager t. Keutucky Ghildren's Home
Soc., 866, 457.
Hager y. Sidebottom, 314, 36&
Hager v. Walker, 444.
Hagood T. Southern, 171.
Haight T. Gay, 383.
Haight A Freese Go. t. Weiss, IGL
Haile y. Stote, 543.
Haines y. Lerin, 629.
Hair y. eute, 713.
Hale, In re, 610.
Haie y. Byerett, 529.
Hale y. Henkel, 610.
Haie y. Kenoslia. 461*
Hale y. State, 90.
Hale y. T^ler, 191.
Haley y. Clark, 87.
Haley y. Sheridan, 27.
Hall y. De Cnir, 231.
Hall y. Dowling, 446.
Hall y. Dnnn, 565.
Hall y. Perry, 760.
Hall y. SUte. 28.
Hallam y. Post Pnb. Co., 606.
Hallawell, Bx parte, 383.
Hallinger y. Dayis, 686.
Halpine y. Barr, 424.
Halter y. Nebraska, 29, 71. 390.
Halter y. SUte, 29, 30, 437, 439.
Hamagachi, Ehc parte, 573.
Ham y. McClaws, 72.
Hamilton y. Carroll, 876.
Hamilton y. Choutean, 182.
Hamilton y. Eno, 665.
Hamilton y. Vicksburg, S. & P. B. Co.,
234.
Hamilton Gaslight & Coke Co. y. Ham-
ilton, 732.
Hamilton Nat. Bank y. American Loan
& Tmst Co., 79.
Hamond y. Howell, 12.
Hammond y. State, 678.
Hammond y. Whittredge. 178.
Hammond Beef & Proylsion Co. y. Best,
547.
Hammond Packing Co. y. State, 594.
607.
Hampton y. McConnel, 297.
Hancock y. Norfolk & W. R. Co., 417.
Hancock y. Sinser Mfg. Co., 208.
Hancock y. Yaden, 418.
Handei y. Chaplin, 223.
Hand Gold Min. Co. y. Parker, 481.
Handley y. Palmer, 516.
Handley's Estate, In re, 88, 89.
Haney y. Gartin, 597, 605.
Haniey y. Donoghue, 299.
Hanley y. Kansas City Soathem B.
Co., 232.
Hnunahan y. State, 714.
Hannibal & St. J. R. Co. y. Hasen, 221,
226. 293, 400.
Hannibal & St. J. R. Co. y. State Board
of Ek]ualization, 452.
Hanover Nat Bank y. Moyses, 287.
Hanoyer Tp. r. Camp Meeting Ass'n,
746.
Hansford y. Barbonr. 65.
Hans y. Louisiana, 47. 169.
Hanson y. Vernon, 442.
Happel y. Brethauer. 316.
Happy y. Mosher, 592.
Harback y. Boston, 482.
Hardee y. Brown, 248.
Hardee y. Gibbs, 328.
Hardenburgh y. Kidd, 94.
Harder's Fireproof Storage ft Van Co.
y. Chicago, 352.
Harding y. American GIncose Co., 432.
Harding y. Stamford Water Co., 491.
Hardy y. Atchison, T. ft S. F. R. Co.,
220.
Hargrayes Mills y. Harden, 246L
Harley y. IT. 8.. 28.
Harmiscm y. Ballot Com'rs. 56.
Harmon y. Chicago. 222. 405.
Harmon y. State, 99, 438.
Harpendiug y. Height, 95.
Harper v. Commissioners of Elberton,
623, 625.
Harper y. Com., 706w
Harrigan y. Gilchrist, 618.
Harriman y. Interstate Commerce Com-
mission, 254.
Harriman y. Menzies, 430.
Harrington y. Atlantic ft Pac Tel. Cow,
153.
Harrington y. Pard^ 321.
Harris y. Dennie, 227.
Harris y. Hardeman, 298w
Harris y. Harsch, 747.
Harrison, Ex parte, 654.
Harrison y. Baltimore, 399,
Harrison y. Bush, 671.
Harrison y. Morton, 178.
Harrison y. Remington Paper Go., 185^
186, 746.
Harrison y. Thomas, 67.
Harrold y. Arrington, 101*
Hart, Ex parte, 305.
Hart y. Henderson, 758.
Hart y. SUte, 60, 696.
Hartford Bridge Co. y. Union Ferry Go.,
69.
Hartford Fire Ins. Co. y. Doyle, 196.
Hartford Fire Ins. Co. y. Houston, 562.
Hartford Fire Ins. Co. y. Perkins, 64.
Hartman y. Greenhow, 452.
Hartman y. Tresise, 491.
Harton y. Ayondale, 584,
Hartranff s Appeal, 319.
Hartung y. People. 713.
Hartzell y. Com., 684.
Haryey y. Aurora ft G. R. Co., 475.
Harvey y. Elkins, 424.
Harward y. St. Clair ft M. I^vee ft
Drainage Co., 467.
Hastings County y. Pouton, 209.
Hastings y. Haug, 613.
Ha thorn y. Natural Carbonic Gas Co.,
69.
Hauck, In re, 384.
Hauenstein y. Lynham, 155,
Havens & Geddes Co. t. Diamond, 219.
HaTerhlll Bridge Proprieton t. Essex
County Com'rs, 502.
Haver t. Yaker. 124.
Hawaii ▼. Mankiclii, 21, 259.
Hawldns ▼. Globe Printing Co., 663.
Hawkins t. Roberts, 70, 575.
Hawley, Bz parte, 226, 411, 547.
Hawley t. Hurd, 636.
Hawthomo ▼. Calef, 724.
Haybnm^s Case, 338.
Hayden, Biz parte, 401.
Hayes, Ebc p8[rte, 411.
Hayes ▼. Appleton, 519.
Hayes r. Hissonri, 549.
Hayes t. Palmer, 306.
Hayford t. Bangor, 474.
Haymond y. Haymond, 534.
Haynes, In re. 385.
Haynes t. State, 757.
Haynes ▼. Thomas, 492.
Hays y. Hays. 50.
Hayward t. Board of Tmstees of Red
dliff, 515.
Head t. Amoskeag Mfg. Co., 423.
Head Money Cases. 155. 208. 210, 393.
Hedgman t. Board of Regintration, 635.
Heilbron's Estate, In re, 749.
Hein v. Westinghonse Air Brake Co.,
190.
Helena Power Transmission Co. ▼.
Spratt, 473.
Hempsted t. Wisconsin Marine A, Fire
Ins. Co. Bank, 260.
Hench t. Pritt. 476, 478.
Henderson ▼. Broomhead, 662.
Henderson t. New York. 22&
Henderson ▼. People, 366.
Henderson t. Spofford, 224.
Henderson Bridge Co. v. Henderson, 681,
738 744.
Henderson's Distilled Spirits, 575.
Hendrickson ▼. Eries, 368.
Hendricks t. State. 66.
Henley t. Myers, 747.
Hennen. In re, 128.
Hennington v. Georgia, 2.M.
Henry v. Cherry, 523. 535, 578.
Henry t. Chester. 442.
Henry v. State, 320.
Heuson t. Moore, 599.
Hepburn t. Ellzey, 163.
Hepburn t. GHswold, 213. 286, 721.
Hepburn v. Jersey City, 482.
Herman Bros. Co. y. Nasiacos, 219.
Herring v. Pugh, 575.
Herring y. State. 65. ,
Hertle, In re. 92, 99.
Heth y. Radford, 582.
Hewitt y. Charier. 409.
Hewitt y. SUte, 65.
Hibbard y. People, 614.
Hibben y. Smith, 585.
Hibemia Savings & Loan Soc T. San
Francisco. 447.
Hibler v. Stote. 302, 306.
Hickman v. O'Neal, 34a
CA8BS CITB
[The figures refer tc
Hid
til(
Hiot
R.
Hicb
Higa
Hig!
Higl)
ley
Hill,
Hill
Hill
Hill
Hill
Hills
Hinc
Co.
Hinc
Hins
Hiss
481
Hiss
Hitt(
Ak
Hoa£
Ho i
Hobl
Hobl
Hobc
Hocb
HodR
Hodfi
Hodf
Hodj
9 0
Hodg
HodK
Hoer
Dri
Hoffr
Hoga
Hoge
Hohe
Hoke
Hold(
Hold*
Hollfl
Holle
Hollii
Hollii
Holln
Hollr
Holb
Holm
Holm
Holm
Holt
Holt
Holt
Holtz
Holy*
y. i
Home
Hom<
Home
Home
Hom<
[Tb« SKtma raltr U
. Pinch. 497.
Hood I. Tharp, 588.
Hoo« T. JamieBon, 20. 164.
Hook V. Payne, 162.
Hooker y. Burr. 750.
Hooker y. New Hsyen & N. Co., 489.
HooD^r y. CallforniB, aiT.
Hooyer y. McCbesney. 266, 611.
Hope y. Deaderick, 507.
Hope V. Johnson, 603.
UojikinB, Appeal of, 464.
Hopkins y. FHchaDt. 696, 637.
Honklua y. Jones. 721.
Hopkini y. Ladd, 630.
Hopklaa y. U. 8.. 238.
Hopper-Morxan Co., In r«, 188,
Hopson T. Murphy, 66.
Horan y. Byrnes. 422.
Uord y. State, 727.
Home y. Green, 447.
Horn Silver Min. Co. r. New York, 285.
Horton y. City Council & Oty Treasurer
of Newport. 3T5. 507, 611, 513.
Horwich y. Walker-Gordon Laboratory
Co., 552.
Houck y. Southern Pac. R. Oo., 557.
Houck y. WrlKht. 42S.
Houk T. Boiiri) of Com'rs at MontKom-
ery County, (W5.
Houlden v. Smilb. 12.
Honse Bill No. 203, In re. 860.
Houseman y. Com.. 7B. 79.
House of Reform y. Lexington, 08.
Houseworth y. Stevens. tiS.
Houston y. Moore. 20;<, 274.
Houston v. WilliamB. ,■539.
Houston & T. a R. Co. y. Dallas. 470.
Houston & T. C. R. Co. v. Maj-es, 2:i3.
Houston & T. C. H. Co. v. Texas. 357,
720.
Hovelman y. Kansas City Uorse tt. Co.,
Hovey y, Elliott, ."SM.
Hover T. State. 82. 3.12.
Howard y. PleninK, 5-16.
Howard T. Illinois Cent R. Co., 216,
230.
Howard y. Kentucky, 606.
Hoivaril t. Tliompaon, GOl.
Howard v. U. S., 153.
Howard Sav. Inst. v. Newark, 447.
Howell y. Miller, 172.
Howell y. State. 224, 446.
Howe & Davidson Co. y. Hauiran. 150.
Hoxie V. New York. N. H, & H. R.
Co., 24.
Hovt y. People, fiH].
Hubbert y. Campbelbville Lumber Co.,
94.
Huber y. Martin. 576.
Hudson y. Caryl, 626.
Hudson County Water Co. v. MeCarter,
677, 737.
Hnger y. South Carolina, 174.
Hughes, &i parte, 409.
Hughes, In re, 49. 313.
Husbea T. Com., 009.
Hughes y. Murdock, 680.
Hughes V. PBau. 304.
H\ighes T. State. 600.
HunDg T. Kaw Val. R. & Imp. Co., 471,
086.
Hull y. Miller, 380.
Hull v. State, 750.
Hultberg v. Anderson^ 151.
Hum bird y. Avery. (B.
Humboldt Lumber Mfrs. Ass'n v. Chris-
top berson, 364.
Hume V. laurel Hill Cemetery, 430.
Hume V. Rogue River Packing Co.. 605,
Humphreys y. State. 564.
Hunch el v. Voneifl, bti2.
Hnonlcutt y. Atlanta, 515.
Hansaker y. Wright, 464,
Hunt V. Hunt, T3('..
Hunt T, Riverside Oo-operative Club,
431.
Hunt y. Searcy, 538,
Hunt y. State, 349.
Hunter y. Pittsburgh, 508. 570, 738.
Huntington t. Central I'ac. R. Co., 450.
Huntington y. New York, 153.
Huntress, The, 79.
Hnniiker y. Supreme Lodge K. P., 747,
Hurford v. State, 249.
Huron, In re, 90.
Hurst T. State, 703.
Hortado y. California, 672, SSa
Hurt v. HoUings worth. 181,
Hub
■. Glove
', 584.
Hutrheson v. Storr , .
Hutchinga, Ei parte. 'iVl.
Hutohinson, Ex parte, 412,
Hyatt y. Myers, 620.
HyltoD T. U. S., 209.
737.
'. Copiah County,
lUiaois Cent. R, Co. y. Illinois, 63, 229,
264, 304.
Illinois Cent. R. Co. v. MeKendree, 227.
Illinois Cent. R. Co. v. Mississippi Hail,
road Commission, 172.
Illinois Life Ins. Co. y. Prewitt, 27.
Illinois State Trust Co. t. St. Louis, [.
M. & 8. K. Co., 473.
Illinois Watcli-Case Co. y. Elgin Nat.
Watch Co.. 153.
Imhoden v. People, 007.
I. M. Darnell & Son Co. y. Memphis.
24a
Importers' A Traders' Nat. Bank ». Ly-
ons. 180.
IitcurrinB State Debts, In re, 30
Independent School Dist. of Sioux City,
Iowa y. Hew, ]8a
Indiana y. Kentucky, 29.
Indiana v. Pullman Palace Car CO.,
CASBS CITED.
[Tbt flguTM refer to paces.]
783
Indianapolis Cable St. R. Co. v. Clti-
sens' St. R. Co., 562, 565.
Indianapolis Traction & Terminal Co. ▼.
Hinney, 417.
Indianapolis Union R. Co. y. Houlihan,
417.
Inez Min. Co. y. Kinney, 155.
Inhabitants of Camden y. Camden Vil-
lage Corp., 441.
Inhabitants of Cheshire y. Berkshire
County Com'rs, 458.
Inhabitants of Yarmouth y. North Yar-
mouth, 507.
Inkster y. Caryer, 67.
Inman S. S. Oo. y. Tinker, 360.
Insurance Co. y. New Orleans, 636.
Insurance Co. of North America y. Com.
218.
International Bldg. & Loan Ass'n y
Hardy, 747.
International Mercantile Marine Co. y
Stranahan, 61.
International Postal Supply Co. y. Brace
166.
International Text-Book Oo. y. Lynch
217,
International Text-Book Co. y. Peter^
son, 217.
International Text-Book Co. y. Weis-
singer, 418.
International Trust Co. y. A. Leschen &
Sons Rope Oo., 246.
Inter-Ocean Pub. Co. y. Associated
Press, 429.
Interstate Commerce Commission y. Ala*
bama Midland R. Co., 98, 216, 255,
256.
Interstate Commerce Commission y.
Baird, 254.
Interstate Commerce Commission y. Cin-
cinnati, N. O. & T. P. R. Co., 98, 255.
Interstate Commerce Commission y.
Clyde S. S. Co., 256.
Interstate Commerce Commission y. De-
troit, G. H. & M. R. Co., 229.
Interstate Commerce Commission y.
Harriman, 203.
Interstate Commerce CommiFsion y.
Lake Shore & M. S. R. Co., 98, 255.
Interstate Oommerce Commission y.
Louisville & N. R. Co., 256.
Interstate Oommerce Commission y.
Northeastern R. Co., 255.
Interstate Oommerce Commission y.
Reich mann, 232.
Interstate Oommerce Commission y.
Western New York ft P. R. Co., 255.
Interstate Stockyards Co. y. Indianapo-
lis U. R. Co., 229.
Inwood V. State, 685.
lola y. Birnbaum, 512.
Iowa Cent. Bld^. & Loan Ass'n y.
Klock, 63.
Iowa Oent. R. Oo. y. Iowa, 644.
Iowa Life Ins. Co. y. Eastern Mut. Life
Ins. Co., 99.
Iowa Lillooet Gold Min. Co. y. Bliss,
14a
Ireland y. Mackintosh, 604.
Iron Molders' Union y. Allis-Chalmers
Co., 422.
Iron Mountain R. Co. y. Memphis, 722.
Iroquois Transp. Co. y. De Laney Forge
& Iron Co., 63, 223.
Irvine, Ex parte, 689.
Ivey y. State, &J.
lyinson y. Hance, 446.
Ivy y. Western Union Tel. Co., 743.
J
Jack y. Kansas, 427, 593.
Jack y. Weiennett, 442.
Jackson, Ex parte, 265, 611*
Jackson, In re, 430.
Jackson y. Ashton, 165.
Jackson y. Com., 698.
Jackson y. Shawl, 373.
Jackson y. State, 77.
Jackson y. U. S., 637.
Jackson County y. Waldo, 500.
Jackson Lumber Oo. y. McCrimmon,
582.
Jackson Min. Oo. y. Auditor Genera],
360.
Jacksonville & S. E. R« Co. y. Walsh,
498.
Jacobs, In re, 437, 438, 439, 525, 577.
Jacobs y. Clearview Water Supply Co.,
473, 478, 480, 481.
Jacobs Pharmacy Co. y. Atlanta, 642.
Jacobson y. Massachusetts, 60, 535.
Jacobson y. Wisconsin, M. & P. R. Co.,
407.
Jacoway y. Denton, 722, 724.
Jacquette y. Hugunon, ^8.
Jaehne y. New York, 710.
James, In re, 181.
James y. Campbell, 267.
James y. Rowland, 89.
James Gray, The, y. The John Eraser,
224.
Jamieson y. Indiana Natural Gas & Oil
Co.. 217.
Jannin y. State, 409, 562.
Janvrin, In re, 93.
Jaques & Tinsley Co. y. Carstarphen
Warehouse Co., 426.
Jarvis, In re, 295.
Jarvis v. State, 702.
Jayne v. Loder, 242.
J. B. Mullen & Co. y. Mosley, 579.
Jefferson, In re, 610.
Jeffersonville, M. & I. R. Oo. y. Esterle,
491.
Jefferys y. Boosey, 363.
Jenkins y. CoUard, S24,
Jenkins y. Ewin, 80.
Jenkins y. Putnam, 296.
Jenkins y. State, 093.
Jenks y. Brewster, 151*
Jenks y. Stump, 588.
Jennes y. Landes, 638.
Jennings y. Big Sandy & C. R. Co., 231.
Jennings y. Paine, 663.
784
CASBS CITED.
Jensen, In re, 456b
Jetton y. University of the Soath, 152.
JeweU V. Weed, 70.
JeweU Car Co. y. Kirkpatrick Const
Co., l&l.
Jew Ho ▼. Williamson, 150, 545.
Job y. Alton, 585.
John D. Park & Sons Co. t. Hartman,
242.
John Fraser, The, 224.
John Jay, The, 16L
Johns y. Press Pub. Co., 068.
Johnson y. Bradley-Watkins Tie Co.,
453.
Johnson y. Charles D. Norton Oo.. 189.
Johnson y. Crawford & Yothers, 188.
Johnson y. Dobbins. 300.
Johnson y. Duncan's Syndics, 723.
Johnson y. Goodyear Min. Co., 418, 547.
Johnson y. Great Falls, 67.
Johnson y. Harrison, 384, 385.
Johnson y. Parkersburg, 494.
Johnson y. Sayre, 145.
Johnson y. Shelter Island Groye &
Camp-Meeting Ass'n, 424.
Johnson y. Simonton, 402.
Johnson y. Smith, 003.
Johnson y. State, 702.
Johnson y. Taylor, 759.
Johnson y. Union Pac R. Co., 253.
Johnson y. U. S., 97.
Johnson City Southern R. Co. v. South
& W. R. Co.. 475.
Johnson County Say. Bank y. Walker,
90.
Johnson Drainage Dist., In re, 585.
Johnson Pub. Co. y. Mills, 563.
Johnson's £)state, In re, 64, 295.
Johnston y. Old Colony R. Co., 492.
Johnstown Cemetery Ass'n y. Parker,
97.
Johnstown, I. ft W. Turnpike Co., Pe-
tition of, 473, 479.
Jolly v. Terre Haute Drawbridge Co.,
234.
Jones, E^ parte, 463.
Jones y. Board of Water Com'rs of De-
troit, 442.
Jones y. Byrne, 149.
Jones y. Carter, 426, 562.
Jones y. Gibson, 442.
Jones y. Loving, 12.
Junes y. Maher, 422.
Jones y. Mutual Fidelity Co, 150, 185,
191.
Jones y. Robbins, 686.
Jones y. Root, 614.
Jones y. Seward. 144.
Jones y. U. S., lOl, 190, 27&
Joplin y. Southwest Missouri Light Co..
562.
Jordahl y. Hayda, 422.
Jordan y. Dobson, 267.
Jordan y. Evansville, 642.
Jordan y. State, 418.
Joseph y. Bidwell, 548.
Joyce y. Great Northern B. Oo., 422.
Judefind y. State, 530.
[The flgorss refer to pages.)
Judson, In re, 594.
Juilliard y. Greenman, 213, 286.
Julien y. Model Building, Loan & Iny.
Co., 71.
Juniata Limestone Co. y. Fagley, 462.
Kadderly y. PorUand, 60. 62, 92, 310,
617.
Kair. Ex parte. 416.
Kaminitsky y. rfortheastem R. 06., 40G.
Kamper y. Hawkins, 54.
Kaniuca Nian« In re, 259.
Kane y. fiMe R. Co., 72, 4171 650.
Kansas y. Colorado, 146^ 1TB» 176, 279.
Kansas y. U. S., 166.
Kansas City y. Duncan, 585.
Kansas City y. Union Pac R. Co., 64.
Kansas City, Ft. 8. ft M. R. Co. y.
Thornton, 54.
Kansas City, M. ft B. B. Co. y. Flippo,
230.
Kansas City Southern R. Co. y. SUte,
100, 253.
Kansas Endowment Ass'n y. Kansas,
155.
Kansas Pac. R. Co. y. Presoott, 447.
Karasek y. Peier, 577.
Kaiem y. U. S., 286.
Karrahoo y. Adams, 162.
Kauffman y. Wootters, 590.
Kaufman y. Alexander, 383.
Kaukauna Water Power Co. y. Green
Bay ft M. Canal Co., 178.
K. y. Dyke Board of Niederyieland, 57.
Keady y. Owers, 333.
Keady y. People, 609.
Keas^ y. Bricker, 467.
Keating y. People, 691.
Keen y. Waycross, 516.
Keene y. Mould, 260.
Keene Fiye Cent Say. Bank y. Reid,
189.
Kehrer y. Stewart, 219, 246, 248.
Keihl y. South Bend, 152.
Keim y. U. S., 130.
Keith y. Guedry, 730.
Keith y. Woombell. 687.
Keithsbuig ft E. R. Co. y. Henry, 499,
501.
Kellam, In re, 637.
Keller, In re, 304.
Keller y. Corpus Christi, 396.
Keller y. State, 77, 79.
Kelley y. Great Northern R. Co., 215,
217, 221, 230. 551.
Kelley y. Rhoads, 248.
Kellogg y. Sowerby, 426,
Kelly, Ex parte, 323.
Kelly, In re, 277.
Kelly y. Cowan, 92.
Kelly y. Herrall, 90, 60S.
Kelly y. Pittsbuigh, 58a
Kelsey y. Kendall. 89.
Kemmler, In re, 707.
Kemp y. Monett, 518.
CASBS CITBD.
£Tb* flgurM refer to paces.]
785
Kemp T. Neville, 12.
Kendal] y. Fader, 74d.
Kendall v. U. S., 112, 121.
Kenefick ▼. St. Louin. 67.
Kennedy, Ex parte, 324.
Kennedy ▼. Dr. David Kennedy Gorp.,
266.
Kennedy v. Hudspeth, 734.
Kennedy t. State Board of Begtotiation,
99.
Kenneke, Ex parte, 434.
Kennesaw Mills Co. r. Walker, 628.
Kennett t. Chambers, 101.
Kenneweg t. Allegany County Com*rs,
71, 650.
Kenny v. HndspetlL80.
Kent y. Bongarts, 672.
Kentucky ▼. Dennison, 174, 808, 306.
Kentucky r. Powers, 179.
Kentucky Life Stock Breeders' Ass'n y.
Hager, 368.
Kentucky Railroad Tax Cases, 658, 582.
Kentucky Union Co. y. Com., 759.
Keokuk Northern Line Packet Co. y.
Keokuk, 361.
Kepner v. U. 8., 21.
Ker y. Illinois, 306.
Kerrigan y. Force, 68, 870.
Kerr y. Perry School Tp., 72.
Kettle y. Dallas, 100.
Keuffel y. Hoboken, 516.
Keys Mfg. Co. y. Kimpel, 182.
Kibbie Tel. Co. y. Landphere, 397.
Kidd y. New Hampshire Tracti<m Oa,
547.
Kidd y. Pearson, 408.
Kieman y. Multnomah County, 596.
Kilboum y. Thompson, 202, 346.
Kilgore y. Magee, 69.
Kimball y. GrantsyiUe aty, 71» 8S2,
444, 470.
Kimball y. Mobile County, 511.
Kimmish y. Ball, 226.
Kincaid y. Francis, 298.
King, In re, 530.
King y. Hatfield, 553.
King y. Hopkins, 629.
King y. Minneapolis Union R. Oo., 496.
King y. Mullins, 584.
King y. Phoenix Ins. Ca, 722.
King y. Portland, 461.
King y. President, etc, of Dedham
Bank, 87.
King y. Root, 651.
King y. State, 681.
King y. Younr Tang, 58.
Kingman y. Petitioners, 45S.
Kingsbury y. Anderson, 365.
Kingsbury y. Nye, 52.
Klnnear Mfg. Co. y. Carlisle, 189.
Kinney y. Beverley, 576.
Kinney v. Conant, 166.
Kinsley y. Dyerly, 250.
Kinston y. Lof tin, 582.
Kirby v. Harker, 399.
Kirk y. Board of Health, 90, 899, 838.
Kirk y. U. &, 166, 190.
BL.CoNaTJi.(8D.DD.)— <K>
Kirkland y. State, 58&
Kirkman y. Bird, 746.
Kirtland y. Hotchkiss, 452, 640.
Kiskaddon y. Dodds, 753.
Kittinger v. Buffalo Traction Co., 70.
Kleinschmidt v. Dunphy, 621.
Klingel's Pharmacy v. Sharp & Dohme,
431.
Knapp y. Thomas, 324.
Knickerbocker Trust Co. r. Cremen,
746.
Knight, In re, 259.
Knight v. Shelton, 51, 80.
Knight & Jillison Co. v. Miller, 429, 437.
Knisely y. Cotterel, 526.
Knowles, Ex parte, 337.
Knowles v. U. S., 265, 654.
Knox v. Board of Education, 566.
Knox y. Lee, 213.
Knox y. State, 537.
Knoxville Iron Co. v. Harbison, 419.
Knoxville Traction Co. v. McMillan,
584.
Knoxville Water Co. y. Knoxville, 781,
742.
Koehier v. Hill, 49.
Kohl V. U. S.. 471.
Kohn v. Melcher, 293.
Kolb v. Boonton, 249.
KoUock, In re, 287.
Kopel, In re, 303.
Koser, S3x parte, 530.
Koshkonong v. Burton, 89.
Kraus v. Lehman, 68.
Kreider v. Cole, 150.
Kresser v. Lyman, 436.
Krieger v. State of Bremen, 68L
Kring v. Missouri, 710.
Krueger v. Colville, 676.
Kmg, In n, 587.
Kuback, Ex parte, 519.
Kuchler v. Greene, 166.
Kugadt v. State, 698.
Kohn v. Morrison, 151.
Kull v. Kull, 123.
Kunaler v. Kohaus, 260L
Kurti y. Moffitt, 148.
La Abra Silver Mln. Co. y. U. 6., 95,
isa
Lace v. People, 80.
Ladd, In re, 276.
Ladd v. Holmes, 650.
Lafayette, M. & B. B. Co. r. MurdodL,
4fiC 600.
Laflin v. Chicago^ W. & N. R. Co., 601.
Lahart v. Thompson, 600.
Lahr v. Metropolitan B. R. Co., 48^
491.
Lake Charles y. Roy, 876.
Lake Drummond Canal & Water Go. T.
Com., 745.
Lake Erie, W. & St L. R. Co. T. Heath,
624.
[Tha Dcuna I
L«k« Brie & W. R. Co. v. WatfciD*, 383,
606, SIT.
Lak* Etwii Navindon, BcMTVtrir It Irr.
Co. T. Klein, 472. 478, 48a
L«k« Shore & H. S. & Co. t. Oodn-
inti, S. ft C. E. Co., 406.
Lake Shore ft, M. S. B. Ca T. Ohio,
234, 390.
Lake Shore ft M. S. B. Co. t. Bmlth,
413. 435.
Lamar t. Palmer, 466.
Lamar v. Pnmer. 65. EMO, 6TS.
LsDiar ▼. State. 640.
SS». T4S.
Lambert, Id re, 638.
t^mbert. Ei parte, 600. 784.
Lambertson r, Hogan, SB.
Lambrecht, lo re, 715.
Lammert v. LldweU. 375.
l4Uiu>reaaz t. Attonie? General, 634.
Laocaitei t. Kemiebec EjOc Dcirltis Co.,
481.
!, 604.
Lancer t. Anrbor line, 230.
Landberg t. Chican, 559.
Land, Lof ft Lnmbei Co. t. Brown, 009.
Land r. State, 540.
I«n« County v. OrcfOn, 84.
Lane *. Nelson. 760.
I^njtabier t. Fairbury, P. ft W. R. Co.,
530.
lADgberg T. ChicBBO, TL
Langidon r. People, 818.
Lange. Bz parte, 704.
Langfor
4m.
&anue7 Coontr Com'n,
Langley t. Angnata, 515.
Lanpr-'- - " --'— ■"
Lanre:
U M
LauniuB ■■ uo>^iue, iu>.
LatLtbunch V. Dlatrtct of Odombia, TL
Lantrj v. Mede, 424.
l^njoa T. Garden City Sand Co., 288.
iMU r. Randall, 258.
Lapeyre v. U. S., 136.
Lappin r. District ot Columbia, 277,
438, 550.
Large y. Consolidated Nat Bank, 192.
I^scelles T. Georgia, 307.
Late Corporation of Church of Jean*
Christ T. U. S., 279.
Lauderdale County t. Foster, 183,
Lanra, The, 87, 122.
LaDrel Fork ft 8. H. R. Co. t. Wwt
Vir^nia Transp. Co., 787, 742.
Laurel Hill Cemetery v. City and Coun-
ty ol San Francisco, 4S9.
Lani«l Oil ft Qsa Co. V. Oalbreath CMl
ft Oaa Co., 190.
Laralette r. D. S., 119.
Lawraoce t. Borm, 629.
Lawrence. Ki parte. 347.
L«wreDce v. Louieville, QOi,
lAwrence t. Norton, IM.
Lawrence v. Rntland R. Co., 418.
Lawrence R. Co. t. WilUama, 489.
LawtOD T. Steele. 890, 434.
Leach *. Hiasouri 0^ ft TtmlMr Oo.,
41&
Leach V. Money, 612.
Leagiie v. State, 679.
League t. Texas, 603.
Leabart *. Deedmefer, 710.
Leahy v. Dunlap. 030.
Leavenworth Coal Co. t. Barber, 603.
Leavenworth County Com'ia v. Miller,
82.
Leavitt t. Uorrli. 638..
Lebolt, In n>, ^1.
Le Donne, In re, 638.
Lee T, New Jersey, 18ft
Lee T. Tillotson. «2S.
Leedy v. Bonrtran, 208.
LecD r. St Lonla, I. H. ft S. IL Co^
Leeper t. State. B9, 663.
Leeper v. iezas, 573.
Lee BlDg. In le, 438.
Le* Sing Far v. U. S., 634.
Leea t. TJ. B.. 687.
Leffiogwell v. Warren, 186, 188.
Legal Tender Cases. 286.
Legialatire Adjournment, In re, 826.
Lehew r. Brommell, 566.
Lehlgb Valley R. Co. v. Penuylraola,
Lehman t. State, 12S.
Leigh r. Green, 584.
Leighton v. U. S.. 126.
Lelsy V. HsTdin, 204, 219, 220, 261.
Lellman t. D. S.. 131.
Le Louis, The, 269.
I^loup V. Port of Mobile, 247.
Lennon, In re, 153.
Lentell t. Boston ft W. St R. Co., 4S9.
l«nt V. TillsoD, 61, 688.
Leonard v. Abner-Dmir Brewlnt Co.,
429.
Leonard t. Baatindale, 412.
Leslie T. St. Louis, 486.
Lester v. SUte. 706.
Levee Dlst No. 9 v. Parmer, 492.
Levert v. Dally States Pub. Co., 651.
Levin T. D. R, 80.
Lemer Bnglneerlng Works r, Eemp-
ner, 188.
Levy, Snccessioo of, 443.
Lewis, In re. 14.
Lewis T. Brandenburg. 54B,
Lewis T. Garrett's Adm'rs, 627.
Lewis V. Lcwelling, 321.
Lewis T. Northern Psc. R. Co.. 651, 741.
Lewis T. Pennsylvania R. Co., 601.
Lewis T. State, 339.
Lewlston Water ft Pot
County, 466.
Lexington Are.. In re, 871.
CASES CITED.
[Th« flsuTM refer to pages.]
787
Liddell ▼. Landaa, 681.
Lienemann t. Ck>8ta, 14*
Ligan t. State. 706.
Liklna, In re, 60, 326, S48.
Lima Oaa Co. y. Lima, 728b
Lincoln y. Com., 490.
Lducoin y. Hangan, 881.
Lincoln y. Smith, 403.
Lincoln Bldg. & Say. Aaa'n r. Graham,
89.
Lincoln Connty y. Laning, 170.
Lindsay y. United States Say. & Loan
Ass'n, 89.
Lindsley y. Natural Carbonic Gas Co.,
61, 69, 472.
Liuford y. Pitzroy, 705.
Lipnman y. People, 612.
Li Sing y. U. 8., 555.
Lister y. Ferryman, 661.
Litchfield y. Pond. 26, 439.
Little Riyer Tp. Reno Connty y. Board
of Com'rs of Reno County. 729.
Little Rock y. North Little Rock. 875.
Little Rock & Ft S. R. Co. y. McGehee,
498.
Littleton y. Borgesa, 738.
Liyely y. Misaonri, K. & T. R. Cow of
Texas, 463.
Liyerpool & L. Ldfe A Fire Ins. Co. t.
Massachusetts, 295.
Liye Stock Dealers* & Butchers' Ass'n y.
Crescent City Liye Stock Landing &
S. Co., 561.
Liyingstott y. Liyingston, 760.'
Liyingston y. New York, 496^ 619, 625.
Lochner y. New York, 416.
Locke y. New Orleans, 710.
Jjocker y. American Tobacco Co., 420.
Locke's Appeal, 376.
Lockington y. Smith, 119.
Loder y. Jayne, 240, 241, 244.
Loeffner y. State, 697.
Loewo y. Lawlor, 237, 240, 241, 420,
480.
Logan T. Postal Tel. & Cable Co., 890.
Logan y. Pyne, 564.
Logan Y. U. S., 642.
Logan & Bryan y. Postal Telegraph &
Cable Co., 68, 250, 678, 735.
Logwood y. Memphis & C. R. Co., 557.
Lobmeyer y. St. Louis Cordage Oo., 60.
Lohse Patent Door Co. y. Fuelle, 480,
571.
'Lombard y. West Chicago Park, 554.
Lommen y. Minneapolis Gaslight Co.t
618, 621.
Londoner y. Denver, 583.
Loney, In re. 199.
liong T. McDowell, 25.
Long y. The Tampico, 159.
Long Island Water Supply Co. t. Brook-
lyn, 484, 586.
Longworth y. Sturges, 840.
Looker y. Mayuard, 741.
Look Tin Sing, In re, 260, 634, 68a
Lord George Gordon, 671.
Lord T. Goodall, 222.
Los Angeles CSty Water Oo. t. Lob An-
geles, 514.
Los Angeles County y. Spencer, 579.
Lothrop y. Stedman, 66, 74, 88.
Lottawanna, The, 160.
Loughborough y. Blake, 276, 467.
Louisiana y. Garfield. 166.
Louisiana y. Jumel. 171.
Louisiana y. Mississippi, 29, 283.
Louisiana y. New Orleans, 723, 730.
Ix)uisiana y. Pilsbury, 750.
Louisiana y. St. Martin's Parish, 512,
736.
Louisiana y. Texas, 174.
Louisiana Nayigatlon A, Fisheries Oo. y.
Doullut, 473.
Louisiana State Board of Health y.
Standard Oil Co., 467.
Louisiana & A. R. Co. y. State, 407.
Louisyille y. Cumberland Tel. Co.. 155.
Loiiisyille, C. & C. R. Oo. y. Letson,
164.
Louisyille Gas Oo. y. Citiaens' Gaslight
Co., 562.
Louisyille, N. A. & C. R. Co. y. Louis-
yille Trust Co., 164.
Louisyille School Board y. King, 576,
588.
Louisyille Trust Co. y. Cincinnati, 181.
Louisyille & N. B. Co. y. Alexander.
65.
Louisyille & N. R. Oo. y. Bullitt Oounty.
75^
Louisyille & N. R. Co. y. Central Stock-
yards Co., 737.
Louisyille & N. R. Oo. y. Eubank, 246.
Louisyille & N. R. Co. y. Intersute R.
Co., 492.
Louisyille & N. R. Co. y. Kentucky, 288.
Louisyille & N. R. Oo. t. Louisyille, 472,
478 485 48i3.
Louisyille ft N. R. Oo. y. Palmes. 189.
Louisyille & N. R. Co. y. Schmidt. 593.
Louisyille & N. R. Co. y. Smith, 25.
Louisyille & T. Turnpike Road Co. y.
Boss, 601.
Louthan y. Com., 653.
Loye y. Jersey City, 784.
Loye y. Judge of Recorder's Court of
Detroit, 406.
Loyerin A Browne Oo. y. Trayis, 219,
648.
Loyett y. West Virginia Cent Gas Oo.,
502.
Loying, Bx parte, 68.
Low y. Austin, 246, 359.
Lowe y. Com., 336.
Lowe y. Summers, 346.
Lowell y. Boston, 867, 454, 4SL
Lowery y. Board of Graded School
Trustees, 67, 555.
Lowrey y. Central Falls, 696w
Loy y. Alston, 151.
Ludington Water-Supply Co. ▼• LnUag'
ton, 562.
Ludlam y. Lndlam, 686.
Lofkin y« Lafkin, 66, 756.
788
CASES CITBD.
[Th« flgOTM refor to pacM-l
Lumbermen's Mnt. Ini. Go. t. Ejinsas
City, 40a
Lung Wing Won, B2s parte, 6i.
Luse v. Rankin, 2S,
Luther y. Borden, 101, 117, 184^ 812.
Lutterloh y. FayetteyUle, 73&
Lutz y. Matthews, 385.
Lux y. Haggin, 480, 485.
Lybarger y. State, 712.
Lycoming County y. Union County, 214,
•368, 512.
Lyman y. Hil]iard« 186w
Lynch y, IT. 8., 168.
Lyng y. State of Michigan, 246.
Lynn y. Polk, 65, 70.
Lyon y. Mitchell, 350.
M
McAfee y. Coyington. 736.
McAllister y. U. S.. 142.
McArthur Bros. Co. y. Com., 26.
McAunich y. Mississippi & M. R. Co.,
373.
Macbeath y. Haldimand, 13.
McBee y. Brady, 50. 51.
McBride y. Ross, 20.
McCabe y. Cauldwell. 664.
McCabe y. Emerson, 88.
McCaflferty y, Guyer, 649.
McCain y. Des Moines, 155.
McCall y. California, 247.
McCall's Case, 144.
McCann y. Com., 401.
McCann y. New York, 602.
McCardle, In re. 177.
McCarter y. Hudson County Water Co.,
742.
McCarter y. Lexington, 70.
McCarthy, Ex parte, 346.
McCarthy y. B. G. Packard Co., 276.
McCkryer, Bx parte, 397.
McCaughey y. Lyall. 592.
McCauley y. State. 684.
McChesney y. Chicago, 585.
McChord y. Louisyille & N. R. Co., 98.
McClaln y. Proyident Say. Life Assur.
Soc, 185.
McClain v. Williams, 617.
McCleary v. Babcock, 67.
McClelland y. McKane, 164.
McCless y. Meekins, 750.
McCluig y. Brenton, 608.
McColIum y. McConaughy, 75.
McConaughy y. Secretary of State, 52.
McConkey v. IT. S., 265.
McConnell y. Bell, 588.
McConnell y. McKillip, 579.
McCorkle y. State, 6TO.
McCown, Ex parte. 90.
McCoy y. State, 702.
McCracken y. Hayward, 750.
McCray y. U. S., 581.
McCready y. Com., 292.
McCready y. Sexton, 90, OOOw
McCready y. Virginia, 294.
McCroskey y. Ladd, 756.
McCue y. Com^ 688.
McCulloch y. Maryland, 34, 202, 203,
204, 211, 246, 286, 443, 445.
McCullougn y. Brown. 403.
McCutchen y. Atlantic Coast Line R.
Co., 550, 551.
McDaniels y. J. J. Connelly Shoe Co.,
426.
McDonald y. Massachusetts, 552, 706,
714.
McDonald y. Red Wing, 396.
McDonel y. State, 639.
Macdougall y. Knight. 663.
McDowell y. Kurtz, 141.
McDowell y. Lindsay, 62.
McDowell y. Rockwood, 755.
McEldowney y. Wyatt, 604.
McElmoyle y. Cohen, 297, 29&
McEIrath y. IT. S.. 624.
McElvaine y. Brush, 186, 707.
McEiwan y. Pennsylyania, N. J. ft N. Y.
R, Co., 484.
McFaddin y. I^7an8-Snider-Buel Co.,
506, 721. 736. 746.
Macfarland, In re, 93, 142, 147.
McGahey y. Virginia, 73a
McGarvey y. Swan, 57L
McGill y. Osborne, 65.
McGinnis y. State, 701.
McGonneirs License, In re, 376w
McGoon y. Scales, 446.
McGorray y. Murphy, 145.
McGowan y. Moody, 119.
McGregor y. Cone, 252.
McGuire y. Chicago, B. ft O. R. Co., 68^
229, 352, 417, 547.
McGuire y. District of Columbia, 423.
McGuire y. Massachusetts, 179, 435^
McGuire y. Parker, 295.
McGuire y. State, 713.
Macheca y. U. S., 122.
Mclntyre y. State, 80.
Mackay's Estate, In re, 461.
McKee y. Chautauqua Assembly, 741.
McKee y, Cheney, 349.
McKeen y. Delancy, 187.
McKeever y. U. S., 560.
McKenzie y. Baker, 327.
McKenzie y. Moore, 328.
Mackin y. Taylor County Oourt, 94,
444
Mackin y. U. S., 68L
Mackinaw, The, 160.
McKinney y. Salem, 732.
McKinstry v. Collins, 605b
McKnight, Ex parte, 301.
McKnight y. U. S., 168.
McLaughlin y. Charles, 662.
McLaughlin y. Charleston County
Com'rs, 88.
McLean y. State, 419.
McLellan y. Longfellow, 696w
McLendon y. Lagrange, 4^
McMahon, In re, 581.
McMahon y. SUte, 706.
McManning y. Farrar, 89.
McManus, Ex parte, 55L
McMillan t. Moyes, 481.
CASES CITBD.
[Tb« figures refer to p«CM«]
789
McMillan y. School Committee of Diit
No. 4, 60&
McMillen y. Anderson, 580.
MacMnllen y. Middietown, 589.
McNaughton Co. y. McGirl, 2ia
McNaughton'8 Will, In re, 605.
McNeer y. McNeer, 699.
McNeill y. Bonthem R. Co., 172.
McNichol y. United States Mercantile
Reporting Agency, 89.
McNiel, £x iMurte, 100.
McPeck y. Central Vermont R. Oo., 189.
McPhee's ESstate, In re, 587.
McPhee ft McOinty Oo. y. Union Pac
R. Co., 80.
McPherson y. Blacker, 100, 852.
McReynolds y. Borlington & O. R. R.
Co.. 499.
McRickard y. FUnt, 424.
McSurley y. McGrew, 352, 368, 875,
597, 734, 757.
McTwiggan y. Hunter, 463.
McVey, In re, 145.
McWhirter*8 Estate, In re, 648.
Madden y. Arnold, 276.
Maddoz y. Graham, 81.
Maddoz y. Neal, 565.
Madera R. Oo. y. Raymond Granite
Co., 477.
Madrazzo, Ex parte, 169.
Maffett y. Quine, 481.
Mager y. Grima, 249.
Magner y. People, 294.
Magoun y. Illinois Trust & Sayings
Bank, 560, 554.
Maguire, In re, 411.
Maguire y. Maguire, 736.
Mahady y. Bushwick R. Co., 489.
MahoD, In re, 308.
Mahon y. Justice, 306.
Mahoney's Bstate, In re. 295.
Maiden y. Ingersoll, lOl.
Maine y. Grand Trunk R. Oo., 247.
Maine y. U. S., 214.
Mallery y. Prye, 606.
Mallett y. North Carolina, 711.
Malloy y. American Hide & Leather Go:,
185, 18S.
Malone y. Williams, 424.
Manaca, In re, 53.
Manchester y. Massachusetts, 364.
Manchester & L. R. R. y. Concord R.
R., 432.
Manda y. Orange, 476.
Manigault y. Springs, 222, 737.
Manistee & N. K. R. Oo. y. Commission-
ea of Railroad, 746.
Manly y. State, 78.
Mannie y. Hatfield, 743.
Manning y. Bruce, 479.
Manor Oasino y. State, 326^ 828, 848.
Mansfield's Case, 566.
Man they y. Vincent, 77.
Manufacturers* Gas ft Oil Co. y. In-
diana Natural Gas ft Oil Oo., 217.
Manyille y. Battle Mountain Smelting
Co., 340.
Marble t. Whitney, 508.
Marburg y. Cole. 9.
Marbury y. Madison, 12, 13, 69, 95, 100,
111, 112, 121, 128k I76w
Margolies y. Atlantic City. 94.
Mananna Flora, The, 268.
Marion y. Forrest, 443.
Marion y. State, 714.
Marion County v. Clark, 622.
Markel y. Phillips, 597.
Marks, Bz parte, 323.
Marks y. U. S., 270.
Marmet-Halm Coal Co. y. Cincinnati,
L. ft A. Electric St Ry., 687.
Marriott y. Brune, 206.
Marsh, Bx parte, 856w
Marsh y. Board of Sup'rs of OUrk
County, 463.
Marshall y. Baltimore ft O. R. Co., 850,
735.
Marshall y. Kraak, 674.
Marshall Engine Oo. y. New Marshall
Engine Co., 153.
Marshall Field ft Co. y. Clark, 135,
349. 382.
Marshall ft Bruce Co. y. NashyiUe. 421.
Marshalship of Alabama, In re, 130.
Marten y. Halbrook, 153.
Martha Washington, The, 223.
Martin y. Board of EUocation, 660w
Martin y. Dix, 508.
Martin y. Fillmore Oounty, 489.
Martin y. Hunter, 34, 141, 178^ 202, 286.
Martin y. Mott, 117, 273.
Martin y. Oskaloosa, 768.
Martin y. Pittsburg ft L. SI R. Co, 661.
Martin y. South Salem Land Co., 88.
Martin y. Texas, 556.
Maryin y. Troutl 568.
Marx ft Haas Jeans Clothing Oo. y.
Watson, 422, 663.
Marzen y. People, 608.
Mason y. A. E. Nelson Cotton Oo., 722.
Mason ft Foard Co. y. Main Jellico
Mountain Coal Co., 641.
Massachusetts, In re, 176.
Massachnsetts y. Rhode Island, 174.
Massey y. Womble, 734.
Massie y. Cessna, 574.
Mathews y. Hedlund, 574.
Mathews y. People, 419, 422, 674.
Mathieson y. Crayen, 163.
Matthews y. Board of Corp. Com'i* of
North Carolina, 490.
Mattox y. Stot^ 608.
Mattox y. U. S.. 691.
Mats y. Chicago & A. R. Od., 188.
Man y. Stoner, 617.
Maxwell, In re, 67w.
MaxweU y. Dow, i9, 040, 648. 680, 688.
Maxwell y. Federal Qold ft Oopper Co.,
166,164.
May y. Buchanan County, 267.
May y. Topping, 828w
Mayer y. U S^ 639.
Maynard \. Granite Stata Provident
At6*n 294.
Maynard v. HUl, 736.
Mayor y. Cooper, 16^
Mars T. Seaboard Air Line By., 466.
Ueacbam v. Dow, 735.
Head t. Acton, 465.
Mead v. Walker. S2S.
Meade t. U. 8., 123.
MeadswB r. Gulf. C. A S. F. R. Co.,
8T1.
Ueada v. U. B., 96.
Mechanics' & Tradera' Bank r. Debolt,
44a.
Medley, E}x parte, 714.
MeebsQ V. Board of Bxdae Gom'ra at
Mendocino County v. Peter*, 4^.
Menke t. State, 249.
Menomlnie, Tbe, 162.
Mercantile Trust Co. v. Columbui. 152.
Mercantile Tniat & Depoeit Co. t. Col-
llna Park A B. R. Co., 728.
Mercer County v. Wolff. 474, 470.
Merchants' Bank of Danville t. Ballau,
eOG, 724. 753, 7Ki.
Merchants' EichaQgo v. Nott, 83.
Merchanta' Buchange uf St. Louia t.
Knott. 877.
Merchants' Nat. Bonk t. tJ. S., 208,
400.
Merchants' Nat. Bank of Lafayette,
Ind. V. Ford, D58.
Merchants' Nat. Bank of St. Paul t.
Baat Grand Forks, 512. G02.
Herchaots' Union Barb Wire Co. r.
Brown, 71.
Meredith v. New Jersey Zinc A Iron Co.,
432.
Merrick T. Giddlngs, MacArthnr & M.,
200.
Mcrs v. Miasouri Poc. R. Co., 405.
MesBenger v. State, 385.
Metropolitan Board of Ezciae t, Bai-
rie, 732.
Metropolitan R. Co. t. District of Co-
lumbia, 20. 27r>.
Metropolitan R. Co. v. Quincy R. Co-
402.
iletiger, In re, 125, 356.
Meui T. People, 87,
Meyer t. Consolidated Ice Co., 190.
Meyers, Bx parte, ;(Dti.
Mial T. Ellington, UOU. 734.
Michie V. New York. N. H. & H. R,
• r*t*r to pates.]
) Cent. R Co. v. Power*, 553,
. Auditor
Co- .
Michtgi
681.
Michigan Corn Imp. Am'
General. 3118.
Michigan Railroad Tax Cases. 553.
Michigan Tel. Co. t. Chnrlotte, 729.
Middtebrook v. State. 6U4.
Middletown Ssv. Bank t. Bachataeh,
e2S.
Mlleck^ E^ parte, 5301.
Miles y. State, 383.
Mil) V. Brown, 503.
Millard <r. Roberts, 198, 214.
Millard t. Taylor, 266.
Miller t. Birmingham, 61B.
MUler T. Burch, 67&
Com., 65a
Craig, 467.
Dennett, 59&
Dea Moines, 421.
E^t Side CausI ft Irr. Co„
Miller .
Miller 1
Miller V
Miller t
Miller V
183.
Miller T. McQuerrr, 619.
Miller t. New Yoti, 233.
Miller y. State, 87. 88, 702.
Miller t. Teias, 677.
Miller T. D. 8., 130, 575.
Millett T. People, 570.
Milligan t. Horey, 145.
Mills T. Dnryee, 297.
Mills V. Green, 649.
Mills V. Martin. 146.
Mills T. Mills. 360.
Mills V. Newell, 344.
Milton T. Bangor R. ft EHectrlc Co.,
565.
Milwaukee Electric R. ft Light Co. t.
Milwankee, 414.
Milwaukee ft M. R. Co. v. Sautter, 179.
Minder v. Georgia, 893.
Miner t. Markham, 200, 348.
Mines r. Scribner. 240. 241.
Mioneapolls v. Reum, 162. 268.
Minneapolis Brewing Co. t. McGitli-
vray, 69. 172, 252.
Minneapolis, St. P. ft S. S. U. R. Co.
». WiaconsiD B. Com., 98, 352, 377.
MiDneapolis ft St L. R. Co. t. Beck-
wlth. 408, 577.
Minneapolis ft St. L. R. Co. r. Minne-
sota, 414.
Minnesota T. Barber, 435.
Minnesota t. Dntnth ft I. R. R. Co., 730.
Minnesota v. Hitchcock, 168. 175.
Minnesota, v. Northern Securities Co..
239.
Minnesota Cbnal ft Power Co. t. Eod-
chichlng Co., 476, 4n, 4fi0.
Minnesota Canal & Power Co. t. Pratt,
476, 480. 4S1.
Minuesots Iron Co. v. Eline, 417.
Minook, In re, 2S9.
Happersett 309, 632, 635, G45.
Mintn
ri^a'i^
564.
Miocene Ditch Co. t. Jacobsen, 481.
Mires v. St. Louis ft S. F. R. Co., 232.
Mississippi t. Johnson, 12.
MissisBlppi Railroad Commission r. Il-
linois Cent. H. Co., 172, 251.
Mlasisslppi R. Co. v. McDonald. 601.
Miasiasippl ft U. R. Co. ▼. HcClnr«, 722.
Mississippi ft R. River Boom Co. t. Pat-
terson, 496.
Missouri *. Andrlano, 179.
Missouri T. Bowles Mill. Oo,, 170^
Missouri T. Illlnoii, 174.
Misaonri t. Iowa, 29.
Missouri T. Eentuc^. 28.
Missouri T, Lewli, 6m
CASES CITBD.
[Tht flsuTM refer to pages.]
791
MiBsoori Drug Ck). r. WTinan, 95, 266.
HiBBOuri, K. & T. R. Co. t. Board of
Com*n of Miami County, 462.
Missouri, K. & T. R. Co. t. Cambern,
480.
Missouri, K. & T. R. Co. y. Fookes, 221.
Missouri, Eu & T. R. Co. y. Interstate
Commerce Commission, 255, 596.
Missouri, K. & T. R. Co. ▼. Shannon. 8:^
Missouri, K. & T. R. Co. y. Simonson,
90.
Missouri, K. & T. R. Co. of Texas y.
McDuffey, 737.
Missouri, K. <& T. R. Co. of Texas y.
Shannon, 582.
Missouri,* K. & T. R. Co. of Texas y.
Smith, 551.
Missouri Pac. R. Co. y. Fiuley, 400.
Missouri Pac. R. Co. t. Humes, 408.
Missouri Pac. R. Co. y. Kennett, 253.
Missouri Pac. R. Co. y. Mackey, 550.
Missouri & K. I. R. Co. y. Oiathe, 93.
Mitchell y. Clark, 721, 74a
Mitchell y. Lemon, 537.
Mitchell y. McCorkle, 370.
Mitchell y. State, 375.
Mitchell y. Steelman, 223.
Mixon y. State, 702.
Mobile Dry Docks Co. y. Mobile, 6a
Mobile, J. & K. C. R. Co. y. Bromberg,
230.
Mobile, J. & K. G. R. Co. y. Hicks, 417.
Mobile & O. R. Co. y. PosUl Tel. Cable
Co., 479.
Mobile & O. R. Co. y. State, 73, 405.
Moddy y. Hoskins, 604.
Monaghan y. Lewis, 454.
Monarch Tobacco Works y. American
Tobacco Co., 23a
Monash y. Rhodes, 320.
Monongahela Riyer Consol. Coal A,
Fuel Co. y. Jutte, 239.
Monroe County Say. Bank y. Rochester,
447.
Montalet y. Murray. 162.
Montana y. Rice, 186.
Montgomery y. Stote, 36, 56^ 55a
Montgomery y. U. S., 115'.
Montgomery Mut. Bldg. & Loan Ass'n
y. Robinson, 383.
Montross y. State. 335.
Moody y. State's Prison, 2a
Moore, In re, 667.
Moore y. Alexander, 86a
Moore y. Allen, 288.
Moore y. Georgetown, 375.
Moore y. Indianapolis, 388, 732.
Moore y. Missouri, 7(X2.
Moore y. Mullen, 540.
Moore y. National Council of Knights
& Ladies of Security, 59a
Moore y. New Orleans. 64.
Moore y. Ruckgaber, 63a
Moore y. State. 597, 683.
Moore y. Strickling, 575.
Moore y. West Jersey Traction Co. 70.
Moore & McFerrin y. McGuire, 29.
Moores A Co. y. Bricklayers' Union, 422.
Moran y. New Orleans, 222.
Moran y. New York, 423.
Moredock y. Kirby, 294.
Morenci Copper Co. y. Freer, 187*
Morford y. linger, 32a d4a
Morgan, Ek parte. 303.
Morgan, In re, 416.
Morgan y. Com., 221, 46a
Morgan y. Nolte, 395.
Morgan y. Nunn, 13a
Morgan's Louisiana & T. R. & Sw S. Co.
y. Louisiana Board of Health, 22a
361.
Morley y. Lake Shore & M. S. B. Co.,
588, 736.
Mormon Church y. U. S., 533.
Morrill y. American Reserye Bond Co.,
171.
Morris' Estate, In re, 461.
Morris y. Powell. 60.
Morris Run Coal Co. y. Barclay Coal
Co.. 42a
Morris-Scarboro-Moffitt Go. y. Southern
ExD. Co., 220.
Morris & E. R. Co. y. Newark. 512.
Morrison y. Bachert, 76, 37L
Morrison y. Dwyer, 305.
Morrison y. Morey, 389, 3Q(>.
Morrison y. State, 557.
Morrow y. Wipf, 877.
Morse y. Hovey, 260.
Morse y. Omaha, 66.
Morton y. Sharkey, 72L
Morton y. Skinner, 30a
Moser, In re, 610.
Moses y. U. S., 405.
Mountain Copper Co. y. U. S., 2a
Mt. Vernon y. Eyans A, Howard Fire
Brick Co., 372.
Mt. Washington Road Co., In re, 500.
Moyer, Ex parte. 307.
Moyer, In re, 321, 303.
Moyer v. Cantieny, 3J5.
Moyer y. Peabody, 153. 319, 571.
Moynihan, Appeal of, 99.
Mueller y. Nugent, 540.
Musler y. Kansas, 388, 402, 437, 439.
577.
Muhlenburg County y. Morehead, 94.
Muirhead y. Sands, 746.
Muir's Adm'r y. Bardstown, 710, 759.
Mulford, In re, 292.
Mull y. Indianapolis & C. Traction Co.,
475.
MuIIan y. State, 379.
Mullan T. U. S., 115, 145.
Mullen y. Mosley, 395.
Mullen y. Western Union Beef Co., 179.
Muller y. Dows, 164.
Muller y. Oregon, 415.
Mumford y. Chicago, R. I. & P. R. Co..
417.
Mumford y. U. S., 214.
Munn y. Illinois, 412, 413, 4H 437, 742.
Munn y. People, 577.
Munn y. Pittsburgh. 627.
Munsey y. Clough, 30a
Munster y. Lamb^ 695.
Mardock v. Memphta, 178.
Murphy, In re, 710. 714.
CABB8 CITED.
tTb» flfUTM nl«r to p«v
Marphr '
Murphy '
Murphy i
Marph; ■
Marphy '
Morpby 1
Morray i
Beard. 482, e09L
, Com., 714.
People. 35S. 677.
. RamMy, S33.
, SUte. 662.
WHtern & A. R. B., B57.
Charleston 152. 4Q2, 729.
HobokeD Land ft Imp. Co.,
Hurray r. McCartj, 204.
Muiray'B Lessee t. Hoboken Land ft
Imp. Co., S71.
Mow r. Arlington Hotel Co., 156.
Muskogee Nst. Tel. Co. t. Hall, 236,
256.
UuBselman Grocer Co. t. Kldd, Dater ft
Price Co., 42a
Mntaal Ben. life Ins. Co. v. EliEabeth,
612.
Mutual life Ina. Co. *. Boyle, 171.
Uatoal Lire lui. Oo. t. Harris, 297.
Mutual Lire ft Casualty Ins. Co. v.
Hal«ht, 447.
Mutual lUierve Fund Life An'n t. (Sty
Council of AuKUBta, 460.
Myerle v. D. B„ 12a
Mjers V. Hettinger, 160, IH.
Hyera y. Moran, 749.
Myers t. State. 667.
Uyrick T. Heard, 18&
Naganab t. Hitchcock, 166.
Nance t. Howard, 453.
Napier v. Gidlere, 2U8.
Narraiansett Indians, Id re, 256.
Nash T. Clark, 480.
Nashua Sav. Bank v. Nashua. 465.
NsshTille. C. & St. L. R. Co. t. Alaba-
ma, 410.
Nashville, C. & St. L, R. Co. t. Taylor,
462, &46, 654.
National Bank of Augusta t. Aagusta
Colton ft Compress Co., 725.
National Bank ot Cleveland t. lola, 468.
Natioual Bank ot Oxford t. Whitman,
186.
National Cotton Oil Co. r. State. 427.
National Council, Junior Order Ameri-
can Mechanics t. State Council, Jnnior
Order United American Meclianica,
72. 218.
National Etech. Bank of Boston t. White,
622.
National FlreprooliuK Co. v. Mason
Builders' Abs'd, 243, 428.
Natioual Harrow Co. t. El Bement &
Sods, 426. 429.
National Harrow Co. t. Hench, 431.
National Land ft L. Co. v. Mead, 327.
National Mot Bids. A Ute Asi'n y.
Brahan, 722.
Nations v. Johnson, 298.
Naugatuck R. Co. v. Waterbory Bnttoo
Co., 627.
Nay lor T. HarrisonTille, 685.
Neafie t. Hotraken Printing ft Pub. Co.,
663.
Neacle, In re, 119, 13S, S92.
Ncal V. Delaware. 656.
Neary T. Philadelphia, W. ft B. B. Co.,
Nebraska t. Iowa, 29.
Needham t. State. 550.
Neely t. Henkel, 101, 874
Neill. Bi parte. 654.
Neill T. Gates, 722.
Neiawanger's Leas^ v. QwynlU^ 446.
Nelaon V. Blinn, 592.
Nelson v. 0. S-, 279.
Nessle v. Hum. 530.
Nettlettm, Appeal of, 5S1.
Neoendom t. Doryea, S30.
Nenstra Senora de le Caridad, The, 134.
Neves v. Scott. 186.
NewaA Library Asa'n, In re, 741.
Newark ft S. O. H. O. R. Go. t. Hnnt,
, Newbaiy-
NatfoDol Surety Co. ^
400.
Newburyport Water Co.
port, 586.
New Castle CIrde Boundary Case, In re,
29.
Newell, In re, 437.
Newell T. People, 77.
New England MuL Mttrine Ins. Co. v.
Dunham, 160. 627.
New England Trout ft Salmon Club t.
Mather, 479.
New Hampshire v. Louisiana. 173.
New Jersey v. New York. 29, 174.
New Jersey t. Wilson. 744.
New Jersey t. Yard, 744.
New Jersey R. ft IrauEp. Co. t. Col-
lectors of East, Fifth ft Ninth Words
of Newark, 441. 466.
New land v. Marsh, 67.
Newlove's Bstite, In re. 599.
Newman, Ex parte, TO.
New Mexico v. Denver ft R. G. B. Co.,
253. 359.
New Orleans t. Clark. 214, S68, 612.
New Orleans T. Fargot, 404.
New Orleans v. Fisher, 152.
New Orleans v. Gaines, 165.
New Orleans v. Winter, 164.
New Orleans Debenture Redemption Co.
V. Loo i si ana. 690.
New Orleans Gaslight Co. v. Louisiana
Light ft Heat Producing ft Mfg. Co.,
390, 562. 721. 737, 742.
New Orleans. M'. ft T. R. Co. t. Mia-
sisaippi. 153.
New Orleans Waterworks Co. t. EjOU-
Isisna Sugar Refining Cck. 72$.
New Orleans Waterworks Co, t. Elvers,
5G2.
New Orleana ft S. R. Co. t. Jonea, 603.
Newsom v. State, 701.
New York v. Com'n <d Taxes ft Anea*-
menta, 447.
794
CABBB CITBD.
CTIM flsarM refer to pages.]
Oftkley ▼. Aspinwall, 79.
Gates y. First Nat. Bank« 245b
Gates y. State, 587.
G'Brien, In re, 376.
O'Brien v. Ash, 599.
O'Brien ▼. Krenz, 608.
O'Brien y. Musical Mhit Protectiye &
Beneyolent Union Local Ko. 14, Na-
tional League of Musicians, 430.
O'Brien's Petition, In re, 409.
O'Bryan r. Allen, 747.
Ochiltree r. Iowa B. Contracting Co.,
724.
Odd Fellows' Cemetery Ass'n y. San
Francisco, 70, 439.
O'Donnell y. People, 702.
Offield y. New York, N. H. & H. R. Co.,
586.
Off & Co. y. Morehead, 426.
Ogden y. Saunders, 260, 748.
Ogden y. Walker, 447.
Ogden City y. Bear Lake & Riyer Wa-
terworks & Irr. Co., 614.
Ogilyie y. Knox Ins. Co., 179.
Ogletree y. Dozier, 87.
Ohio y. Dollison, 549, 651.
Ohio y. Frank, 1S7.
Ohio, The y. Stunt, 363.
Ohio Val. Ry.'s Receiyer y. Lander, 667.
Ohio & M. R. Co. y. Lackey, 408.
Olcott T. Superyisors of Fond du Lac
County, 187.
Old Dominion S. S. Co. y. McEenna,
422.
Old Wayne 'Mnt Life Ass'n y. McDon-
ough, 691.
Olender y. Crystalline Min. Co., 690.
Oliyer y. Washington Mills, 208.
Olsen y. Smith, 226.
Olyphant Borough y. Egreski, 738.
Omaha Water Co. y. Omaha, 728, 742.
O'Maley y. Borough of Freeport, 467.
Omichund y. Barker, 634.
O'Neill, In re, 409.
O'Neil y. Vermont, 355, 677.
Opinion of Justices, In re, 63, 71, 106.
199, 259, 285, 305, 320, 326, 344, 349,
367, 377. 427, 447, 515, 621, 742.
Opinion of Supreme Court, In re, 61.
Order of R. H. Telegraphers y. Loui**
yille & N. R. Co., 231.
Oregon y. Hitchcock, 166.
O'Reilly De Camara v. Brooke, 18, 14.
Orient Ins. Co. y. Daggs, 295, 659, 636,
753.
Orleans, The y. Phoebus, 157.
Ormerod y. New York, W. S. & B. B.
Co., 468.
Orr V. GilnMUi2654, 745.
Orrick v. Ft. Worth, 37a
Ortiz, Ex parte, 21.
Ortiz y. Hansen, 473.
Osbom y. Bank of United States 164,
171, 204, 211, 286.
Osbom y. Charlevoix Circuit Judge, 679.
Osbom y. Jaines, 748,
Osbom y. New York & N. H. B. Co.,
466.
Osbome r. Adams Countyt468L
Osborne r. Lindstrom, 6w.
Osbome y. State, 249.
Osbum y. Staley, 380.
Oskamp y. Lewis, 583.
Otis y. Parker, 389, 437, 566.
Ottawa y. Carey, 514.
OtUwa County Com'rs v. Nelson, 460.
Oury y. Goodwin, 28QL
Over y. By ram Found ly Co., 428.
Overman Silver Min. Co. y. Corcoran,
481.
Owen County Burley Tobacco Soc. y.
Bramback, 650, 561, 640.
Owen V. Owen, 622.
Owens, In re, 260.
Owens y. Ohio Cent. R. Co., 181.
Owensboro Waterworks Co. y. Owens^
boro, 671.
Oxnard Beet Sugar Ca y. State^ 366»
368.
Pabst Brewing Co. y. Ckrenshaw, 252,
263.
Pace y. Alabama, 657.
Psjce y. Burgess, 210, '467.
Pacific Coast S. S. Co. y. Board of Rail-
road Com'rs^ 222.
Pacific Electric R. Co. y. Los Angeles,
154.
Pacific Exp. Co. y. Seibert, 247, 248.
Pacific Ins. Go. v. Soule, 20^, 209.
Pacific Mail S. S. Co. v. Joliffe, 224.
Pacific Nat. Bank of Tacoma v. Pierce
County, 465.
Pacific Postal Tel. Cable Co. y. Oregon
& C. R. Co., 484^ 486.
Pacific Ry. Commission, In re, 347.
Pacific R. R. y. Governor of Missouri,
382.
Pacific R. Co. y. Maguire, 744.
Paducah v. Razsdale, 438.
Page y. Allen, 352.
Page y. Chicago, M. & St. P. R. Co.,
499
Pager. Matthews' Adrn'r, 333.
Pace y. Moffett, 131.
Paine r. Willson, 187.
Painter r. St. Clair. 474, 475, 686b
Palen y. U. S., 116.
Palfrey r. Boston, 447.
Palmer y. Barrett, 277.
Palmer y. Lawrence, 6L
Palmer y. State, ^84.
Palmer y. Stumph, 461.
Palmer y. Texas, 182.
Palmore y. State, 621, 688.
Palmyra Tp. y. Pennsylyania R. Ob.,
737.
Panama, The, 226^ 279. 280.
Parham y. Justices of inferior Court of
Decatur County, 396w
Paris y. Nordburg, 760l
Park T. Cuidkr, 67, 30G.
Park r. Detroit Fr«e Prew Co., S24.
Park & Sods Co. v. National Whole-
BBle DriisKi"t8' Aai'ti, 431.
Parker, Ei parte, 34B.
Parker <r. OUR, 398.
Parker v. Stnle. W, 78, 100.
Parkerabiirg v. Brown, 30S, 4CS.
Parkerabarg & U. River Traaap. Co.
Parkeraburg. 3lil.
Parka t. CtonimisflioiierB of Soldien* ft
Sailon' Home, 317.
Parks T. KoH3, IK.
Parks T. State, 410, 042.
Parks T. West, TO.
Parks T. Wistonain Cent E. Co., 499.
Parmelee v. Lawreuct, 608.
Parmiter t. Coupland, 665.
Parrott, lb re, iW, M7, &5S.
Parsons y. Bedford, 67, 618.
ParaoQB t. Howe. 48S.
Parsons t. Peeple, 460:
Parflons v. Robinson, 179.
Parther y. V. 8., 1».
Passaic Bridget, The, 216.
Passnic t. Fatersnn Bill-Po«Ungr, Adrer-
Using & Sign Paintinx Co., 424.
Passenger Oases. 228, &7.
Patopaco Guano Co. y. Board of Agricul-
ture. 350.
Patrick t. State, 226.
Patterson v. Baumer. 480.
PattersoD y. Kentucky, 207, 396.
Patterson r. Mater, 181.
PatteiBOD y. Missouri Pac. R. Co., 232.
Patterson t. Taylor, 657.
I'stterson t. Temple. 400.
Palton V. Asheyille, 749.
Fatten V. Brady, 154.
Patton y. Commercial Bank, 447.
Patton y. Palton. !)09.
Patty T. Colgan, 367.
Paul y. Detroit, 621.
Paul y. Gloucester County, 609.
Pwl y. Virginia, 219. 2^. 63ft
Pnyesich v. .Vew England Lifs Ini. Co.,
523, 535, &>3, (iUO.
Payne y. Houghton. 118.
Peabody y. IT. 8., 400.
Peaden t. State, OOy.
Pearce v. Stepliens, S25.
I'earce y. Texas, 306.
Pearsall v. Board of Sap'n ot Eaton
County, 492.
Pearson y. Board of Bup'ra ot Bruna-
wick County, VAti.
Pearson y. Wiiubisb. 681.
Peeplea t. Byrd, 26.
Peerce y. Kitimiller. 63, 88. B97.
Peete y. Morgan, 360, 361.
Pegues V. Baj. 250.
Peira Eetate, In re, 698. 738.
Pelt y. Payne, 756.
Pembina Coosot. Silrer MIn. ft MOI. Go.
T. Pennsylvania, 206. 667,
Penhallow v. Doane, 310.
Peniek y. Foster. 606.
Pennriwker t. Wllllama, 8Sa
York & P. R. Co., 266, 266.
Penn's Case, «86.
Pennsylvania v. Wheeling ft B. Bridge
Co., 183, 233, 234.
Pennsylvania Co. y. Fishack, 189.
Pennaylyanla R. Co. v. First German
Lathem Oongregatiou of Pittsbureh,
496, 625.
PeDDSylvanla R. Co. v. Hughes, 179.
PeoDsylyania R. Co. y. Hummel. ISS.
Pennaylyania B. Co. y. Miller, 740.
Pennsylvania R. Oo. >. Philadelphia
County, 83.
Pennsylvania R. Oo. in Maryland t.
Baltimore ft O. R. Co.. 496.
Pennsylvania Sugar Re&nlng Co. T.
Amerieaii Sugar Refining Co., 237,
238, 241.
Pennsylvania Tel. Co., la re, 235.
Penrose r. Efrie Canal Qo^ 749.
Pensacola Tel. Co. t. Weatem Dnion
TeL Co„ 219. 234.
Peonage Gasea, 419, 689.
People y. Aachen ft Mnnlch Fire Ins.
Co. ot Germany, 426.
People y. Adams, 007.
People y. Adirondack R. Co., 479.
People T. Abeam, 376.
People V. Albany ft S. B. Co., 02S.
People y. Albertson, 506.
People y. Allen, 372.
People y. Ammerman, 700,
People T. Baker, 61. 538.
Peopla y. Barber, 645.
People V. Beattie, 410.
People T. Blesecker, 401.
People y. Bingham. 80S.
People y. Bissell, %.
People y. Board of Assesaon, 448^
Peopla T. Board of Com'rs of Cook
CoontT, 60a
People y. Board of Education ft Trus-
tee* of School Dist. No. 1, 590, Tfia
People y. Board of Election Com'rs of
aty of Chicago, S45, 050.
Peopla y. Board of R. Com'rs, 47a
People T. Board of Salem, 72.
People y. Board of State Auditors, 96.
People V. Board ot Sup'rs, 406.
People T. Board ot Sup'rs ot City ft
Connty of New York, 89.
People T. Board of Sup'rs of Essex
County, 672.
People y. Board ot Sup'r* ot Saginaw
County, 458.
People y. Boston ft A. R. Co.. 406,
People T. BotkiD, 146, 670, 643.
People V. Bowen, 32&
People y. Brady, 655.
People T. Briges, 886.
People r. Brooklyn, 444.
People T. Brooklyn Cooperage Co., 867.
People T. Brooklyn. F. * C, a E. Oo™
CASES CITED.
rn» Bsuraa r
Peoplo V. Bndd, SIB.
People T. Buffalo Piih Oo.. 202.
People T. Barn*, 323.
People T. Butler, 714.
People V. BuUer St. Fonodir & l""^
Co., 420, 650.
People ». Cage, 702.
People V, CaWer, 70.
People T. Caldwell, 409.
I'eople T. Uanal Appraisers, 481.
People T. Cannon, 4^l&
People T. CsHc, 647.
People V. Chicago, flS, 5S7.
People r. Cicottee. 626.
People T. Olean St. Co., 5C6.
People V. ColemflD, 373.
People T. Coler, 418, 611, 784.
People T. Commigsionera of Taxea dc
AaBessmeutB, 447, 4&0.
People V. Common Council of City of
Rochester, 71.
People T. Common Council of Detroit,
511.
People T. Comptroller of City of Brook-
lyS, 54.
People T. Cook, 87.
People V. Oooper, 74.
People V. Gornforth, &16.
People V. Coi, 712.
People T. Cram, 98.
People T. Orissman, 96.
People T. Cross, 307.
People r. Curry, 60.
People T. Curtis, 355.
People *. Dane, 715.
People T. Daniell, 335.
People T. Daniels, 2S0.
People r. Daim, 007.
People T. DepartmeDt of HMlth of New
York, K7S.
People V. Detroit. 611.
People F. Detroit United Ry., 407.
People V. Devlin, 327.
People T. District Court of Arapahoe
County, 342.
People V. District Coort of Second Judi-
cial Disc, 97.
People T. Doeaburg. 625.
People T. D'Onech, 424.
feople V. Dowdigan, tt9L
People V, Bowling, 702.
People T. Downer, 22S.
People T. Draper, 71, 78, 852, 505, fill.
People ». Duke, 428.
People T. Dycker, 412,
People Y. ElliBOB, 729.
People V. Ewer, 411.
People V. Pancher, 79.
People ▼. Fire Department of Olty of
Detroit, 711.
People V. Fish, 691.
People V, FlagK. 352.
People T. FlannellT, 680.
People T. Flynn, 732.
People 1
People 1
Fonda, 149.
Ft Wayne ACE. Oo., 489.
Freeman, 86.
French, 733.
People '
People
Feople
People
People
5a».
People
People
People
People
People
People
People
People
People
People
People
People
People
People
[M.1
r. Fcort, 824.
r. Gardner, 70, SST.
r. tiasB, 745.
r. Gerke, 123.
t. GIOTerarille, 475.
r. Glynn, 24a
T. Gordon, 409.
r. Grand Trunk W. R. Co., 518,
r. Granite State Peovideut Aes'n,
V. Hagun, 3(^
r. HaU, 098.
'. Uanrahan, 371, {M9.
r. Hatch, 327.
r, Havnor, 530.
r. Hayes, 713.
r. Henderson, 402.
r. Henshaw, 609.
7. HoUrnan, 377, 649.
r. Humphrey, 471.
r. Hunckeler, 702.
t. Hurlbut, 513.
r. Hutchinson, 342.
r. ^att, 305.
». lUinois Cent. B. Co., 470, 577,
42,
r. JohnaoQ, 710, 715.
r. Judge of Twelfth Dist., 335.
r. Justices of Conrt of Special
People ^
People 1
People 1
People 1
People ^
People 1
People 1
People '
People 1
People 1
People 1
People V
5?6.* ^
People 1
People 1
People 1
People 1
People 1
People 1
People ^
People 1
People 1
People 1
People \
People 1
Keeler, 347.
Kemmler, 707.
Kennedy, 620.
, Kenney, 73,
King. 54&
Kipley, 89, OS.
Klaw. 430.
Knight, 449.
. KoBtka, 422.
Lawrence, 78, 9i 382.
Leubiscber, 594.
Loeffler, 643.
Loomis, 51.
Lynch, 718, 758.
McBride, 64, 68, 71, 876, 377,
McCoy, 688.
McDsniels, 702.
McDonald, 63.
McKlroy, 379.
Madden, ST.
Mabaney, 344.
Msjors, 703.
Marcus, 42L
Man, 401.
May, 77, 79, 80,
Mead, 688.
. Melz, 78, 416, 54&>
Miller, 463.
Mills, 52.
Momoa, 69t
Molloy, 452.
Moore, 823.
[Th* BsnrM rater to pat**.]
PettersoD t. Board of Oom'n of PiloU
(or Port of GnlreBton, 41ft
Pettigrew t. EtruiHTille, 491.
Petty, In re, 714.
Peyrouz r. Howard, 161.
FfelfTcT T. Board ol Eklacitlon of De-
troit. 867, 630,
PbtlSD I. Terry. 576, T47.
Philadelphifl v. Brabender, 406.
Philadelphia, M. & S. St. R. Ca, In re,
480.
Philadelphia & R. R. Co. r. Patent, 492.
Philadelphia & K. R. Co. r. Errin. SIS.
PhiladelphU & S. M. S. S. Co. TTPeDii-
b.tw-n.,:.. OAT
Phillip! T. lola Portland Cement Co..
Phillips T. Mobile, 252.
Phillipa T, Pajne, 102.
Phlllipa T. State, 411.
Phinaey v. Tnisteea of Sheppard ft
Enoch Pratt Hospital, T3&,
PhippB T. Wiaconiin Cent. H. Oo., U7.
378,
Piatt T, People, 786.
Pickard t. Pullman Boathem Oar Co.,
248,
Pickett y. State, e09.
Pickle V. McOati, 328,
Pica net t. Swan, 639.
Piedmont Cotton Mills t. Qeorcla Ry.
& Electric Co., 486. 487.
Piek T. Chicaso ft N. W. R, Co., 172,
247.
PlerM V. Carakadon. 709, 716.
Pierce t, Doolittle, 97,
Pierce t. Drew, 479. 488.
Pierce t, Kimball, 606.
Pierce t. Pierce, 7B.
Plerca t. Somerset Ry., 06.
Pierce t. Worcester & N. R. Co., 492.
Pike r. State, 462.
Pitucree t. Michigan Cent. R. Co., 742.
Knkertou v. Verberg. 637.
Pinner ''. Providence Loan ft Inveit.
ment Co., 590.
Plntsch CompressinE Co. t. Ber|in, 638.
Plqiia Branch of State Bank v. Enoop,
i44. 744.
PIttaborgh. C, a St. L. R. Co. t.
Board of Public WorltH, 247.
PlttsbTirgfa, C, C. ft St. L. R. Co. t.
Hartford, 71.
Pittabnrgh. C, 0. * St L. R. C5o. v.
Hoaea, 417.
I^ttabnrgb, O., C. & St t. B. Co. t.
Hunt, 220, 221.
Pittabargh, C. C. & St. L. R. Co. t.
Uchthelaer, 417. 6^6. 7ia
PfttAurgh. O., C. & St. L. E. Co. T.
Bt«ta,lKia
Plttsborgh, Ft W. ft C. R. Oo. t, Saul-
tary Dist of Chicago, 47S.
PiltBburK ft 8. Coal Co. v. Batea, 24a
Pittsburgh ft W. B. Co. t. Pattenon,
000.
Planters' Bank t. Sbaru, 723, 73S.
Piatt T. Beach. 128.
Piatt y. Lecocq, 180. 302.
Piatt T. PennsylTania Co,, 600.
Platte Land Co. t. Hubbard, 65.
Pleasy t. Ferguson, 557.
Pliable Bboe Co. r. Bryant, 153.
PlimplOD V. Semetset, G24, 629,
Plotte, In re, 185.
Ptumas County v. Wheeler, 422.
Plamb V. Chriatie, 663.
Plummer t. Northern Pac R. Co., 230,
088. 703,
Piymontb, The, lOS.
Polndezter v. Greeikhow, 170, 171, S07,
Point Roberts Fishing Oo. t. Oeoiie ft
Barker Oo., 71.
Pokegama Sngar Pine Lnmber Co. t.
Klamath River Lnmber ft Improve-
metit Co., 101.
Pollard T. Hagan, 468.
Pollock y. Farmers' Loan ft T. Co.,
200, 401,
Ponder t. Qrabam. 87.
Pool y, Sitnraone, 479.
Poole T. Fleeger, 29, 866.
Pooler T. U. §., 167,
Pope T, Macon, 618.
Pope T. Williams, 647.
Porter t. Glenn, 7B3.
Porter t. Hnghea, 328.
Porter t. Ritch. OSS.
Porter y, Rocfcford, B. I. ft 8L L. R.
Co., 441.
Porter r. Sabln, 102.
Porter v. Vinzant, 398.
Portland v. Coot, 732.
Portland & R. R. Co. t. Deering, 406.
Portueuf Irrieatlng Co. y. Badge, 602.
Port of Mobile v. Watson, 700,
Posey Tp. of Franklin Cotmtr r. Se-
oour, &5.
Post V. Sonthem R. Co., 24a
Postal Tel. Cable Co. t. State, 284.
Post Pub. Co, T. Moloney, 666.
Potlacb Lnmber Co. y. Peterson, 4G9,
481.
Potter y. Selwyn, 181.
PottB T. Riddle, 642, 066.
Potts y. Smith Mfg. Co., 203,
Potwin T. Johnson, 371.
Pound y. Tnrck. 222,
Powell, In re, 733.
Powell V. FenQsylyauia, 401, 487.
Powell y. Sherwood, 417.
Powell T. Spackman, 77.
Powell y. Bute, 702.
Power T, Telford, 604.
Powerm y. Detroit, Q. H. ft U. E. Co..
■ 744.
CASES CITE
[TIi« flsurea refer u i
Praifv T. Western PaTing & Supply Co.,
73.
Prather t. U. S., 288.
Pratt T. Breckinridge, 86.
Pratt T. JacksonTilTe, 460.
Pratt Inatitate y. New York, 570.
Prentia r. Atlantic Ck>a8t Line R. Ck>.,
172.
Prentiss t. Brennan, 639.
Presby t. Klickitat Coimty, 67&
Prescott T. Illinois Oanal, 69.
Prescott Irr. Go. y. Flathers, 480.
Presser y. Illinois, 73, 273, 543.
President, etc., of Bank of Vincennes t.
State, 681.
President, etc. of Oitr of Paterson y.
Society for ESstabUshing Usefol Manu-
factures, 607.
President, etc., of Oriental Bank t.
Freexe, 606.
Presidio County t. City Nat Bank, 843.
Press Pub. Co. y. Monroe, 266.
Preston, In re, 419.
Preston y. Finler, 654.
Price y. State, 691.
Priddie y. Thompson. 181.
Prigg y. Pennsylyania. 808.
Prince y. Crockw, 457.
Prine y. Com., 6t9.
Pringle. In re. 250.
Prise Cases, 117, 270.
Proclamations, €>Bise of, 86.
Proprietors of Piscataqua Bridge y.
New Hampshire Bridge, 492.
Prosser y. Callis, 665.
Prout y. Starr, 160. 172.
Prouty y. Stoyer, 342, 352.
Proyidence Bank y. Billings, Y46.
Proyidence Washington Ins. Co. y. Wes-
ton, 365.
Proyident Say. life Assur. Soc y. Fiord,
154.
Prowett y. Nance County, 65.
Public Clearing House y. Coyne, 696.
Pulleu y. Wake County Com'rs, 443.
Pullman's Palace Car Co. y. Pennsyl-
yania, 247, 248.
Pumpelly y. Qreen Bay ft M. Canal Oa,
Pundt y. Pendleton, 277.
Pumell y. Page, 449.
Putnam y. Morgan, 266.
Puyallup y. Lacey, 472, 475w
Inarg, Bx parte, 409.
[neen. The, 624.
meen of Portugal y. Glyn, 167.
lueenan y. Territory, 683.
luick Bear y. Leupp. 214.
luinlan ▼. Houston ft T. O. B. Co., 64.
(niyey y. Lawrence, 446.
Raee Horse, In le, 125.
Raddilfs Bz'rs y. Brooklyn, 404.
Raff
Raff :
Rag I
Rah •
Rail 1
Rail I
ize
Rail I
Rale :
23:
Ralp
Ram
Ram ;
Ram
Ranc
Ranc ]
Rani I
Rapi ,
Rash '
Rasn I
Rasn I
Rasn I
Rate I
Rattc :
235
Rawl I
Rawf I
Ray '
484
Rayn
545
Rayn •
Read
Read) j
Reagi ]
172.
Reari I
Recal 1
Recto
Red I i
747.
Reece <
Reed, 1
Reed '
Reeye;
Beg. 1
Reg. ' .
Reg. ' .
land
Reg. 1 .
Reg. ^
Reid \,
Reid ^.
Reid ^
Reid 6 :
Reilles
Reinhf
Reinkci
Reiser
Ass'ii
Reis y.
Reithni
Rel/ea
Resputi
Republ
800
CA8BS CITED.
[Tb« figures refer to pagei.]
Rex ▼. Broadfoot, 271.
Rex T. Joameymen Tailors of Cam-
bridge, 421.
Rex V. Tayler, 529.
Rex V. Wright, 664.
Reynolds y. fioaid of Eklacation of City
of Topeka, 555.
Reynolds y. CrawfordsyiUe First Nat
Bank, 191.
Reynolds y. Geary, 788.
Reynolds y. U. S., 398, 533, 692.
Rhines y. Clark, 62&
Rhoads, In re, 748.
Rhodes y. Sperry & Hutchinson Co., 352.
Rhodes y. Walsh, 200, 348.
Rhode Island y. Massachusetts, 29, 34,
102, 174.
Rhode Island Hospital Trust Co. t.
Armington, 447.
Ribas y Hijo y. U. S^ 142, 166» 177.
Rice y. Ames, 287.
Rice y. Foster, 374.
Rice y. Palmer, 51.
Rice y. Parkmau, 423.
Rice y. Smith, 749.
Rice y. Standard Oil Co., 248.
Rich y. Chicago, 88.
Rich y. Flanders, 710.
Richards y. Clarksburs. 615.
Richardson y. Akin, 603.
Richardson y. Kaufman, 749.
Richardson y. McChesney, 197, 342.
Richland County y. Lawrence County,
511.
Richman r. Oonsolidated Gas Co., 413,
743.
Richmond y. Caruthers, 400.
Richmond y. People of Porto Rico, 21.
Richmond, F. ft P. R. Co. y. Louisa R.
Co., 483, 731.
Richmond & A. R. Co. y. R. A. Patter-
son Tobacco Co., 220, 247.
Ridley y. Sherbrook, 11, 324, 624^ 645.
Ridenour y. Saffin. 461.
Riggins y. U. S., 548.
Rigney y. Chicago, 492, 495.
Uiley y. Lee, 651.
Riley y. Rochester, 515.
Rilley y. Charleston Union Station Co.,
4To.
Rio Grande Sampling Co. y. Catlin, 417.
Risley y. Utica, 545. 571.
Ristine y. State, 366.
Ritchie y. Boynton, 425.
Riyerside County y. San Bernardino
County, 100.
Riverside Mills y. Atlantic Coast Line
R. Co., 217.
Roach y. Van Riswick, Mc Arthur &
Mackey, 276.
Road Imp. Dist. No. 1, y. Gloyer, 65, 67,
585.
Roanoke Cemetery Co. t. Gk>odwin, 430.
Robb, In re, 306.
Robb y. Connolly, 306.
Robbins y. Milwaukee & H. B. Co.,
499.
Robbins y. Shelby County Taxing Dist,
220. 246, 250.
Robbins y. State, 691.
Robert Dollar, Tlie, 223.
Roberts, Eol parte. 395.
Roberts, In re, 304, 306, 603L
Roberts y. Bolles, 188.
Roberts y. Eranstou, 60.
Roberts y. Hackney. 90.
Roberts y. Jacob, 591.
Roberts y. Reilly, 304.
Roberts y. Smith, 470.
Roberts y. State, 88, 693, 697, 702.
Roberts y. U. S., 13.
Robertson y. Baldwin, 10, 141, 147, 542.
Robertson y. Carson. 163.
Robertson t. Van Qeaye. 760l
Robinson y. Hamilton. 401.
Robinson y. Kerrigan, 96.
Robinson y. Lee, 357.
Robinson y. Richardson, 613.
Robinson y. State, 712.
Robinson y. Suburban Brick Co., 237.
Robinson y. Swope, 479.
Robinson's Estate, In re^ 516, 593.
Uobson y. Doyle. 67.
Roby y. Smith, 292.
Rochester R. Co. y. Rochester, 738.
Rockingham County Light & Power Co.
y. Hobbs, 476, 480.
Rockin^am Ten Osnt Say. Bank t.
Portsmouth, 466.
Rodenbaugh y. Philadelphia Traction
Co., 604.
Rodgers y. Adsit, 295.
Roeder y. Robertson, 295, 411, 558.
Rogers y. Alabama, 556.
Rogers y. Buffalo, 674.
Rogers y. Burlington, 280.
Rogers y. Evarts, 420, 422.
Rogers y. Jacob, 67, 649.
Rogers y. Pedc, 707.
Rohlf y. Kasemeier, 421, 430.
Roller y. Holly, 592.
Rollins y. Love, 603.
Rood V. Wallace, 320.
Rooney y. North Dakota, 714.
Roosevelt y. Godard, 6T.
Roosevelt Hospital v. New Yoric, 461.
Hopes y. Clinch, 125^
Rose y. Himley. 13^.
Rosey. Rose, 599.
Rose y. State, 60.
Rosenbloom y. State, 68, 462.
Ross, In re, 143, 714.
Ross y. Board of Chosen Freeholders of
Essex County, 95.
Ross v. Desha Levee Board, 433.
Ross y. Irving, 600, 623.
Ross y. Kendall, 554.
Ross y. Lipscomb, 65, 66.
Ross y. whitman, 84.
Rosser, In re, 588.
Rosson y. State, 324, 325.
Rothermel v. Meyerle, 549.
Boundtree^ Ex parte, 80.
Rountree y« Adams Express Oo.t IMi
CA8B8 CITl
CTlM figures refer t
Ronse t. ThompBon, 877.
Rouse, Hazard & Go. t. DonoTan, 590.
Rowell T. Fuller's Estate, 623.
Royall T. Thomas, 675.
Royoe ▼. Maloney, 667.
Rubber Tire Wheel Co. t. Milwaukee
Rubber Works Co., 242.
Ruch ▼. New Orleans, 434.
Rudolph, In re, 295.
Ruffin T. Ck>nimonwealth, 10.
Itugfrles T. Collier, 374.
Rukgles T. Washington County, 721.
Ruhstrat v. People, 30.
Rumsey t. New York & N. E. R. Co.,
491.
Ruukie T. U. S., 121.
Ru88 V. Oom., 368.
Russell y. New York, 396.
Russell T. State, 645.
Russie T. Brazzell, 49.
Rutgers v. Waddington, 68.
Ruth, In re, 563.
Rutledge v. Krauss, 307.
Rutten V. Paterson, 75.
Ryan y. Louisville & N. Terminal Co.,
477.
Ryman Steamboat Line Co. y. Com.,
22L
Sadler ▼. Langham, 479.
Sadlier y. New York, 9.
S^inaw Gaslight Co. y. Saginaw, 062,
Sah Quah, In re. 542.
St. Anthony Falb Water Power Co. y.
Board of Water Com'rs, 221.
St. Benedict's Abbey y. Marion County,
585.
St Clair County y. Interstate Sand ft
Car Transfer Ck)., 247.
St. George y. Hardie, 64, 225, 643.
St. Helena Water Co. y. Forbes, 485.
St Joseph Plank Road Co. y. Kline,
563.
St. Louis y. Rutz, 187.
St. Louis y. Wiggins Ferry Co., 361.
St. Louis y. Wortman, 228.
St Louis Brewing Ass'n y. St Louis,
442.
St. Louis County Court y. Grlswold,
479.
St Ivonis. Ft S. ft W. R. Co. y, Mts-
Auliff, 492, 500.
St. Louis, I. M. ft S. R. Co. y. Dayis,
148, 154, 248, 553.
St Louis, I. M. & S. R. Co. y. Hamp-
ton, 232.
St Louis, I. M. ft S. R. Co. y. NeaL 9a
St. Louis, I. M. ft S. R. Co. y. Paul,
41&
St Louis, I. M. ft S. R. Oo. y. State,
251 550
St Louis, I. Ml ft S. R. Co. y. Taylor,
98.
9t Louis Merchants Bridge Terminal R.
Co. y. Callahan, 417.
Bl.Con8t.L.(3d.Ed.)— 61
St
St (
St .
41
St
St. .
40 .
St .
23
St I
Cc
St :
Oi I
Snle ;
Salo
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SalD
Sam i
Co
Sam
Sam
Sam
San <
43! .
San I
Co
Sant :
Sanl
45( .
Sand :
Sane :
Sand I
Sand!
Sand I
Sanf I
Sanf •
San I
V. :
Sani] I
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16(j.
Sargc
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Sattei
Saun I
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Savaii
Tel
Savaii
Savir
592.
Sawri
Sawyi
Sawyi
Sawyi
Sayloi
Sayre
[Th« flgarM refer to pages.]
Scales T. Doe ex dem. Otts, 604.
Scarll T. Dixon, 072.
Schade ▼. I^ppert, 618.
Schaefer y. Werlinc, 584.
Schaeslein ▼. Gabannifla, 288.
Bchintgen t. La Crosse, 585.
Schmidt t. Indianapolis, 250.
Schneck t. Jeifersonyille, 89.
Scholey y. Rew, 209.
Schollenberger v. PennfljlTania« 228, 262.
Scholle V. State, 86.
School City of Marion t. Forrest, 99.
Schoolcraft's Adm'r y. Lomsyliie & N.
R. Co., 64.
Schoolfield y. Rhodes, 191.
Schoonmaker y. Gilmore, 162.
Schradin y. New York Cent. & H. R. R.
Co., 551.
Schulherr y. Bordeaux, 377.
Schuyler y. Pelissier, 181.
Schuylkill Nay. Co. y. Freedley, 500.
Schwab y. Berggren, 694.
Schwarting, Ex parte, 53a
Schwarts y. People, 377.
Schwars y. Doyer, 95.
Scott y. District Court of Fifth JudidaJ
Diet., 589.
Scott y. Donald, 172. 252.
Scott T. Farmers* A Merchant!* Nat
Bank, 482.
Scott y. Jones, 164.
Scott y. Neely. 150, 191.
Scott y. Sanford, 258.
Scott y. Smart's Bx'rs, 60.
Scott y. Stansfield, 12.
Scott y. The Young America, 168.
Scott y. Toledo, 471, 586.
Scoyille y. Brock, 93.
Scranton, Appeal of, 733.
Scranton Gas & Water Co. y. Dela-
ware, I* & W. R. Co., 486.
Scudamore, Ex parte, 592.
Seaboard Air lane R. Co. y. Railroad
Commission of Alabama, 438» 558»
577, 748.
Scale y. State, 251.
Seaman y. Netherclift, 662.
Sears y. CottrelL 68, 71, 352.
Seattle y. Hinckley, 397, 59a
Second Ward Say. Bank y. Schran^,
746.
Secor y. Singleton, 172.
Secretary y. McGarrahan, 95.
Sedgwick y. Stanton, 360.
Seeley y. Steyens, 68.
Seeleyyille Coal ft Min. Co. y. McGloa-
son, 4ia
Seits y. Messerschmitt, 26, 27.
Selden y. Delaware ft H. Canal Co., 494.
Selectmen of Clinton y. Worcester Con-
sole St. R. Co., 65.
Sellers y. Hayes, 550.
Semayne*s Case, 609.
Senate Bill, In re, 103.
Senate File, In re, 52.
Senate Resolution, In re, 314.
Seneca County Bank y. Lamb^ 374b
Sere y. Pitot, 163.
SerralleiT y. Esbri, 724.
Serra y. Mortiga, 682.
Seryonits y. State, 411.
Seyen Bishops, Case of, 670.
Sewell y. State, 52.
Sewing^Machlne Companies* Case, 141.
Shaffer y. U. S., 687.
Shallow y. Salem, 89.
Shapleigh y. San Angelo, 729.
Sharp, In re, 539.
Sharpless y. Philadelphia, 72, 456.
Shasta Power Co. y. Walker, 474, 477.
Shaw y. Brown, 291.
Shaw y. City Council of Marshall town,
565, 643.
Shaw y. MtK^andless, 223.
Shaw y. Quincy Min. Co., 164.
Sheffield, In re, 448.
Shelby Ice ft Fuel Co. y. Southern R.
Co., 232.
Shelley y. Westcott, 603.
Shell y. Matteson, 598.
Shelton y. Tiffin, 163.
SheiMtrd y. Barron, 65.
Shepard y. In& Co., 124.
Shepard y. Wood, 444.
Shepherd's Point Land Co. y. Atlantic
Hotel, 722.
Sheppard y. Dowling, 352, 649.
Sheppard y. Steele, 627.
Sherlock y. Ailing, 221, 250.
Sherlock y. Winnetka, 459.
Sherman y. Buick, 479.
Sherman y. People, 681.
Sherrill y. 0*Bnen, 344.
Sherry y. Perkins, 422.
Sherwood y. Powell, 662.
Shewalter y. Lexington, 149.
Shickell y. Berryyille Land ft Imp. Co.,
603.
Shields y. Coleman, 182.
Shields y. Ohio, 740.
Shinn y. Cunningham, 728^
Ship-Money, Case of, 85.
Shits y. Berks County, 457.
Shively y. Bowlby, 278.
Shoe y. Nether Providence Tp., 472.
Shoemaker y. Nesbit, 12.
Shoemaker y. U. S., 276, 479.
Sholl y. German Coal Co., 478.
Shore ft Bro. y. Baltimore ft O. R. Co.,
253.
Shortall y. Puget Sound Bridge ft Dred-
ging Co., 419.
Shoshone Min. Co. y. Rutter, 153.
Shotwell y. Moore, 442, 448.
Shoultx y. McPheeters, 339.
Shoyer y. State, 52a
Shrader, Ex parte, 405.
Shrawder v. Snyder, 756.
Shreveport y. Schulsinger, 437.
Shreveport Traction Co. y. Shreyeport,
389, 728, 742.
Shular y. State, 691.
Sibila v. Bahney, 403.
Siebert, In re. 92.
CASES CI'.
[Tb« flfUTM refer
Siebold, Ex parte, 802, 650.
Siegfried y. Raymond, 859.
Sievera y. Boot, 494.
Silkman y. Board of Water Com'n, 442.
Sill y. Coming, 83.
SUliman y. Uadson Riyer Bridge Co.,
234.
Silyerberg Broa. y. Doaglaas, 530.
Silyer y. Holt, 153.
Simmons, In re, 498.
Simmons y. State. 695.
Simon y. Craft, 538. 587.
Sims* Lessee y. Irvine, 186.
Sims y. State, 700.
Singer y. Maryland, 410.
Singer Mfg. Co. y. McCoUock, 89.
Singer Mfg. Co. y. Wright, 462.
Single y. Marathon County Supers, 766.
Sing Tnck y. U. S., 634.
Sinking Fond Com'rs y. George, 879.
Sinnot y. Davenport, 222.
Sisson y. Board of Sap'rs of Baena Via-
ta Coanty, 480.
Sixth Aye. R. Ca y. Kerr, 492.
Sizemore y. State, 268.
Skinner y. Oamett Gold Min. Co., 418.
Skinner y. Holt, 749.
Skinner y. Wilhelm, 886.
Slack y. Jacob, 67, 78, 96.
Slack y. Maysyille & L. R. Co., 464.
Slaughter y. Com., 296.
Slanghter-House Caaea, 406, 542, 561,
tm, 639, 641.
Slanson y. Racine, 74.
Slaymaker y. Phillips, 660.
Slingerland y. International Contracting
Co., 566.
Slnder y. St. Louia Transit Co., 375.
Smalley y. Gearing, 665.
Smeltxer y. St Louis ft S. F. R. Co.,
230, 4oa
Smiley y. Kansas, 427.
Smith, Ex parte, 53a
Smith, In re, 70, 899.
Smith y. Alabama, 184, 4ia
Smith y. Alphin, 401.
Smith y. Applegate, 850.
Smith y. Au Gres Tp. Mich., 190.
Smith y. Baner, 181.
Smith y. Gale. 756.
Smith y. Gonld, 480, 486, 40a
Smith y. Grayson County, 77.
Smith y. Hard. 758.
Smith T. Hollis, 446.
Smith y. Indianapolia St. R. Co., 67,
6a
Smith y. Jackaon, 250.
Smith y. Jennings, 343.
Smith y. Jerome. 609.
Smith y. Lowe, 250.
Smith y. Ma«on, 467.
Smith y. New xork« 784.
Smith y. Rackliffe, 165.
Smith y. Reeyea, 26, 170, 171.
Smith y. 8t Louia & S. W. B. Co., 68,
Smith T. 8t Paul, M. & M. R. Co., 8a
Sd
Sc
Sc
Sd
1
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Sn
Sii
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Sn
Sn
Sn
Sn
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6
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Soc
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Sol
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SOE
Soc
Sov
Sou
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Sou
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Soul
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Sont
Sout
Sout
Sout
Sout
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of
Sout
45£
Soutl
Gr.
Soutl
BoDtbern R. Oo. t. Simpaon, 187.
8outb«m B. Co. v. Tift, 25S, 256, 605.
Southern 8. 8. Oo. v. Portwudem, SW).
South MorgaiitowD v. Moinntowii, <tU.
South N«aliTilIa St. R. Go. t. Marrow,
■MO.
South WeK Imp. Co. t. Smith'* Adm'T,
7li0,
^ulhnick T. Boulhwick, 710.
South & N. A. H. Co. V. UiKhlud Are.
& B. R. Co., 4TU.
Spnia T. 8t I»ols ft S. F. B. Co., 6S,
230.
Spangler t. Jacohy, 3SI.
SpaiT V. U. S., tiHi.
Bpaiildins t. Andover, 511.
SpauldiDg V. Lowell, RH,
Speed's Kstate. la re, 205.
Speer v. Sriioot Directors, etc., of Bor-
ough of Blnirsville, 367.
Spencer, BJi parte, 41&.
Spencer v. Merchant. 461, 582.
Spencer v. People. 463.
Spencer t. State. 28.
Spenr'er v. Watkin*. 148,
BperlinB t. Cnlfee. 142.
Spicgler V. Chicago, '.K>. 376.
Spier V. Baker. 71.
Spinnej, Hi parte. 409.
Spokane v. Camp. 375.
Spoouer t. McCoDnelt. 281.
Spraegina t. Houghton, 647.
Sprague v. Dorr, ■"
Spraij
Spratli^ ..
Co., 21».
Spratt V. Helen* Power TraDamiMlon
Co., 76.
Xpringer ». U. 8., 2ue.
Spring T. iDhabitflDte of Hyde Phtt,
COD.
Sprior; Vel. Waterworks t. 8sn Francia-
>. 4D0.
r, Travi
426.
Stadtler t. School Dist. No. 40, 634.
Standard Oil Co. t. Oom., 67, 396.
Stanford v. Coram, 724.
StHnislaas Count; t. San Joaquin & K.
Kiver Canal ft Irr. Co., 414, *1B.
StHuley, Bi parte, 696.
Stunlej V. Scliwalby. 166.
Stanton v. Board of Sup'ia of Eaaex
Coukty, 86, ST5.
Starin r. New York, 1S5.
Slarin v. U. 8., 120.
Starks t. Sawyer, 599.
Slarnes t. Albion Mfg. Co.. 416, 647.
Starr Burying Ground Asa'n r. North
Lane Cemetery Ash'q. 486.
Bute, Ell parte, 306. 306.
State V. Adama, 04U.
State T. Adams Eip. Co., 37, 233.
State V. Adams Lumber Co., 426.
Slate T. AddiHon, 5<J5.
State T, Ah Chuey, 088.
State T. Aiken, 403.
State V. Allen, hiSO.
State T. Aloe, 546.
State T. Anderson, TX
State T. Andrae, Sa.
State V. Anson, tS).
Slate T. Ardoin, 111,
State T. Armeuo. 410.
State T. Armonr Packing Oo., 430.
State T. Associated Press, 429, 506.
State T. Atchison, T. & & F. B. Co.,
232.
State T. Atlaotlc Coast line B. Co., 08.
State T. Baker, 416, 711.
Slate r. Baldwin, G91.
i^tate T. Bank of Commetce, 466.
State r. Bank of Bast TeDDenee, 334.
Slate T. Barber, 370.
State V. Barnes. 323.
State V. Bairlngtou, 686.
State T. Bates, 640, 6U:i.
State T. Bayer, 249, 260. BB2, 643.
State V. Beach, 6T8.
State T. Becker, 64.
Stale V. Bebimer, 699.
State T. Bell. 208, 5J7.
Stale T. Berkley, G02.
State V, Berlin, 691.
State r. Billings, 538.
State V. Bixman. 403, 40T.
State T. Blaisdelt, 199. 377.
State T. Blake. 28, 344.
Slate V. Blalock, 322.
State V. Board of AssesBors, 359.
State T. Board of Com'ra of Washiog-
toD Cooutr, 335.
Sinte T. Board of Dental Eiamlaera,
001.
state ▼. Board of Education, 760.
State T. Board of Ina. Oom'rs. 203.
State V. Board of Sup'ra of Coahoma
County, 32a
State V. Board of Trusteea of Westmin-
ster College, 74G.
Slate V. Boa'iBO, GOT.
State V. Bobleter, 316.
Stale V. Bolden, TL
Slate T. Bond. 711.
State T. Boone CoDDly, 483.
State V. Boucher, 321.
Stale V. Bowman, 100, 348, SSL
State V. Boyntoi
Stale 1
01&
Brennan's
Brian, 368.
State T. Brill, 96.
State V. Bristol, 320.
Slate T. BrowD, 263, 38a
State V. Brownfield, 556.
State r. Brown ft Sharpe Mtg. Co., 418.
State T. Bryan, 00, 76, 78, 80.
State ». Buchanan, 13, 27, 416. 443.
State T. Buckeye Pipe Line Cw, 427.
State T. Buckle/, 381, Q8a
CASB8 cr
[TlM flfuree refer
State T. Buckmau, 27.
State T. Budge, 374.
State T. Burdge, 99.
State T. Burrow, 78.
State y. Butler, 725.
State ▼. Caffery, 565.
State T. Cain, 65.
State T. Cainan, 520.
State ▼. Caldwell, 712.
State T. Campbell, 402.
State Y. Cantwell. 7:i3.
State v. Capdevielle, 3f55.
State V. Ctorr, 8S,
State T. Carter, 711.
State V. Cedanrski, 507, 518^ 520.
State V. Chandler, 529.
State ▼. Chapman, 410.
State ▼. Chase, 95.
State T. Cheetham, 821.
State T. Chicago, M. & St. P. R. Co.,
218, 219, 221, 230, 251.
State ▼. Chicago & N. W. R. Co., 442,
738.
State' T. Chilton, 25, 316.
SUte V. Chittenden, 83, 96, 288, 389,
435 592.
Stately. Cincinnati Gaslight & Coke Co.,
5G4.
Sute' T. City Council of Cheyenne, 600
State ▼. Clancy, 90.
State ▼. Clark, 412.
State V. Clinton, 734.
Stale V. Cloudt, 27.
State V. Cohen, 411.
State T. Columbia, 25.
State y. Common Council of Madison,
512.
State y. Comptroller. 357.
State y. Comstock, 682.
State y. Continental Tobacco Co., 431.
State y. Cook, 77, 540.
State y. Corbett, 409.
State y. Corron. 732.
State y. Corson, 294.
State T. Court of Common Pleas of
Morris County, 376.
State y. Cox, 53, 7a
State y. Crombie, 99.
Sute y. Cross, 700.
State y. Crounse, 327.
State ▼. Crumbauffh, 575.
State V. Ciidahy Packing Co^, 427,
State y. Cunningham, 102, 37v.
State y. Curler, 66.
State y. Curreus, 64, 293.
State y. Dahl, 600.
State y. Dalton, 412.
State y. Dayidson, 367.
State y. Dayis, 601. 687,
State y. Dawson, 696.
State y. Day, 702.
State y. Denny, 514.
State y. Dering, 438.
State ▼. Deny. 574, 579.
State y. Dickinson. 691.
State y. Dirckz, 7a
State y. District Board of School Dist
No. 8 of Bdgerton, 530.
St
St
St
St
I
St
St
St
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St
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Sti
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Stai
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Stai !
Sral !
Stat
Stat '
24 '
Stat
Stat !
Stat!
State T. Gates. 98, 352.
Bute r. Olubr, 2S0.
Sute T. Gle>HDu, 102. 333, 626.
State T. Olenn, 68G.
Bute T. Glidden. 422.
Btate T. Goldthait, 645.
State T. Goodwill, 418.
State v. Graham, BOO, 688.
State T. GraDt, 310.
State y. Graj, SB6.
State T. Great Narthem R. Co.
413, STS.
State T. Greer, 693.
■. Grifleo, 820.
'. Grosiman, 530.
■- GugllelmOj680.
Sute T. JackMDTille Termlna] Co., 220
State
State
State
State
State
State
sute
State
SUU
State
SUIe
State
State
, VTUKiieimo, oou.
. Guilbert, 206, 344, SftL
Hacbett, 384.
Haeemau, 92.
Haper -'"
StaU
State
State
Sute
State
State
State
State
State
State
State
State
State
State
State
^lale
State
Sute
Stale
State
State
State
State
State
Sute
687. 688. 712.
rfuaen, iyyt, 466, 680. 6SS.
Judge □! Section A. 530.
-, 5S7.
Hall. 302, 301, 306.
Hallook. 329.
Halter, 2S.
Hammer, 510.
UammoDd Packing Co., 216.
Sute T. HaoaoQ, 24, 37.
StaU T. Harbourne. 251.
sute T. HardeD, 78, 80, 83.
State T. Hardte, 681.
Slate T. Harman, 691.
State T. Harper, 517. State
Sute T. HaatiugB. 138. State
State T. Haaa. 4ia State
SUU T. Hawkini. 600. State
Sute T. Ilefferman, 60. Slate
State T. Heidenhaln. 405. Stale
State T. Height, 688. State
Sute T. HeinemanD. 410. Mfg.
Sute T. Heira of Zanco, 2i Sute
State T. Helms, 746. StaU
State *. HenderaoD, 461. State
sute T. Henry, 71. State
Sute V. Hermann. 734. Sute
SUU T. Herried, 50, 51. Slate
State T. Herrmann, 3Ta State
StaU V. Hill. 137. StaU
sute T. Uocker, 349. SUte
State T. Hogau, 5o2. state
State T. Hoprieyer, 397, 641. Sute
State T. UnMen, 640. SlaU
State V. Holland, 97, 37B, BOa StaU
Sute T. Horroka, 001. State
sute r. Hoitetter. 7a State
StaU V. Hndaon, 500. State
State *. Hugbea, (;79. State
State T. Hunter. 509. State
State T. HuHton. .S20. StaU
Sute T. Hyde. 85, 86. SUte
sute T. Indiana & O. Oil, Qaa A MId. State
Co., 217, 250. State
SUto T. Ingram, 701. State
Sute T^ iQmaa. 6S6. SUte
SUU T. Ins. Co. of North America, 218. Sute
sute T. Irrioe, 743. State
Sute T. JackniDD, 423. tioD
SUte T. Jackson, 5U9, 63S, 638. SUU
'. Jacotu. 688.
r. JamlaoD, 700.
■. Jeraey Cltj, 340, 370.
' JohnaoD, 8' """ "°°
Jones, 334,
■|&
T. Junktn, 666. 869.
7. Ju Nun, 6S0.
V. Justus, 422, 552.
V. Kealy, .TOT.
c. Kelly, 307.
r. Kennedy, 27.
r. Kiese wetter. 382.
T. Kilburn, 27.
r. King, 66.
y. Kline, 376. 6OG1.
r. Kobnke. 54.
r. Kolsem. TO.
V. Krahmer, 723, 746.
r. Kreutzberg, 421.
V. Krnltscbnltt, 462.
r. Kumpfert, 410.
V. Kyle. 78, 712.
r. La Crosse County Court Judga,
r. I^ Grare, 315.
T. Lancaster, 295>
r. Lathrop, 462.
r. Lawrence, 370.
T. Laylin, 51.
T. Lee, 61.
T. Le Pitro, 714.
r. Lewis, 626.
T. Lindsay, 70.
V. Livingston Concrete, Bldg. ft
Co., 410, 437.
V. Loomls, 418.
V. Ladington, 403.
T. Lunton, 625.
V. McBride, 315.
T. MeCabt, 063.
T. McClear, 620.
T. McCoomer, 68.
V. McCrillis, 423, 563.
T. McGionla, 398.
T. MH3ongh, 79.
T. Mclntoab, 600.
T. Macit, 276.
T. McKee. 654.
T. UcHahon. 423.
T. McMillan, 66.
y. McNaspT. 307.
T. Main, 170.
y. Maine, 48S, 670.
V. Halbeor Count; Court, 06.
T. Maltory, 434.
r. Manford, 40B.
T. Manning, 700.
T. ManaioD, 600.
T. Marble, 410, 634.
V. Martin, 349, SSL
V. Maryland Institute tot Promo-
of Mechanic Arts, 555.
». Matbis, 66, m
CASES CITl
[TlM flfUTM refer U
Stat
Stat)
State T. Matthews. 504.
State T. Michel, aO, 68, 6G0, 7ia
Sute ▼. Mikesell, 703.
SUte T. Millar, 76.
State ▼. Miller, 609. 688.
State T. Milwaukee Gaslight Co., 562.
State T, Miaeoizri Onarantee Sar. 4b
Bldg. Aaa'n, 425, 724.
Stote ▼. Misaoari, K. & T. R. Co. of
Texas, 427, 785.
State ▼. Miasouri Pac. R. Co., 9S, 561.
State ▼. Mitchell, 680.
State ▼. Moore, 365, 366, 713.
sute ▼. Moores, 60, 505, 514.
Sute ▼. Morf^an City, 52.
sute T. Morrill, 667.
sute T. Mortensen, 26w
SUte ▼. Muir, 703.
Sute T. Mnnroe, 701.
sute T. Marlin, 417.
State ▼. Murphy, 389.
State ▼. Murray, 542.
State ▼. Napier, 228.
SUte ▼. Naah, 815.
SUte T. Nast. 14a
State T. Nehle, 95.
State T. Nelson Count/, 367.
State T. Nergaard, 434.
SUte T. Nesbit, 397.
Sute T. New, 480.
State ▼. Newark, 372, 460.
State T. Newman, 681.
SUte ▼. New Orleans, 54, 76, 438.
State ▼. New York, N. H. & H. R. Co.,
State T. Nichols, 322.
State ▼. Noble, 83.
State T. Nolan, 60, 514.
State T. Norman, 80, 708.
State T. Northern Cent. R. Co., 454.
SUte ▼. Northern Pac. R. Co.. 71, 218.
SUte ▼. Noyes, 375.
sute T. Ohio Oil Ok. 27.
Sute ▼. Omaha & O. B. Ry. & Bridge
Co., 246. * ^
SUte T. O'Neil. 614.
SUte T. O'Neill, 579.
State T. Orr, 663.
sute T. Osawkee Tp., 367.
State ▼. Osbom, 463.
SUte T. Owen, 615.
SUte T. Page, 87.
SUte T. Parish, 701.
SUte ▼. Parks, 712.
sute T. Parler, 80.
SUte ▼. Parmenter, 78.
SUte T. Parsons, 372.
Sute T. Patterson, 557.
State T. Paul, 355, 677.
State ▼. Peacock. 607.
Sute T. Peel Splint Coal Co., 67, 09,
70, 72.
State ▼. Peet 215*. 217, 220.
State T. Pelt 711.
Sute ▼. Peterson. 82L
Sute ▼. Phipps, 218.
SUte ▼. Pilsbury, 607.
SUte T. Pioneer JPress Co., 668.
Stati
65.
Stnti
Stati
SUti
Stati
StaU
State
StaU
State
State
State
State
State
Sute
Sute
State
State
State
State
State
State
State
State
Sute
Sute
State
State
State
State
State
State
State
State
State
State
State
State
State
State
State
hoi
SUt<
Stat<
Stat<
Stab
Stab
SUb
Stati
Stat
SUt
SUt
Stat
Sut
SUt
Stat
55
SUt
SUt
Stal
2C
SU1
Stal
Stai
Stal
su
808
CASES CITED.
[Th« flfUTM retor to iMces.]
State ▼. Stripling, 251.
State ▼. Suffield k T. Bridge Co., 483.
State Y. SolliTan, 711.
State y. Superior Court for Clarke
County, 48&
State T. Superior Court of King Ooun-
ty, 468.
State T. Superior Court of Skamania
County, 239.
State y. Superior Court of Steyena Coun-
ty, 485.
State y. Superior Court, Spokane Coun-
ty 486.
State y. Switzer, 702.
SUte y. Taylor, 65. 81, 650, 70a
State y. Terre Haute 4b I. B. Co., 70.
State y. Tetu, 401.
State y. Tboraau, 317.
SUte y. Thomaa, 90.
State y. Thompson, 68, 96, 97, 409, 684,
State* y. Thome, 441.
State y. Tingey, 80, 314.
State y. Toledo, 5l6w
State y. Tower, 294. 405.
State y. Towery, 6l7.
State y. Trayelers' Ins. Co., 460, 547.
State y. Trenton, 372.
State y. Tucker, 460.
State y. Tugwell, 607.
State y. Tuttle, 649.
State y. Tyree, 714.
State y. Underwood, 537.
State y. Vail, 625.
State y. Van Duyn, 381.
State y. Vann, 540.
SUte y. Van Wye, 654.
State y. Virginia-Carolina Chemical Oo.,
246^ 427.
State y. Vogelsang, 759.
SUte y. Wabash, St. L. & P. B. Co.,
406.
SUte V. Wagener, 97.
State y. Waite, 14.
State y. Walker, 410, 411
State y. Walsen, 317.
State y. Washburn, 86.
State y. Waters, 693.
SUte ▼. Waters-Pierce Oil Co., 427.
State y. Webber, 69.
SUte y. Weber, 647.
State y. Weiss, 530.
State y. Welch, 711.
State y. Wells, 92.
State y. Weston, 605.
State V. Wheeler, 73, 558.
State y. Whisner, 328.
State V. WhiUker, 407.
State V. White River Power Co., 481.
•State T. Whitlock, 422.
State y. Whittlesey, 753.
State y. Wiggins Ferry Co., 247.
SUte y. Wilcox, 410.
State y. Wilforth, 543.
SUte y. WilliamB, 27, 28, 489, 440^ 605^
708 713.
State' y. Wilson, 333, 419, 431.
SUte ▼. Winnett, 51.
State y. Witherspoon, 427*
State ▼. Wolfer, 823.
SUte y. Woods, 714.
State y. Workman, 543.
State y. Worth, 460.
State y. Yopp, 396.
State y. Young, 374.
SUte Board of Assessors y. Oentral R.
Co., 462.
SUte Board of Health y. Boy, 99, 590,
642.
State Freight Tax Cases, 247.
SUte of Illinois y. IllinoiB Cent B. Co.,
152, 349.
SUte of Iowa y. Jones, 714.
State of Mississippi y. Johnson, 111.
SUte of Missouri v. Kansas City» Ft. S.
& G. B. Co., 40a
State Prison of North Carc^ina y. Day,
675.
SUte Bailroad Com. y. People, 100.
SUte Tax on Foreign-Held Bonds, In
re, 363, 453. 729.
State Tonnage Tax Cases, 360.
State Treasurer y. Wright, 450.
State Trust Co. y. National Land Imp.
k Mfg. Co., 181.
SUte Water Supply Commisinon y. Cur-
tU, 67.
Steamship Co. y. Portwardens, 224.
Stearns y. Minnesota, 741.
Steams y. U. S., 141.
Stebbins, In re, 601.
Steckert y. East Saginaw, 381.
Steed y. Harvey, 547.
Steele County y. Erskine, 89, 589.
Steele y. State, 686.
Stegenga, In re, 53S.
Steger y. Traveling Men's Bldg. & Loan
Ass'n, 89, 725.
Stein y. Bienyille Water Supply Co.*
732.
Stein y. Morrison, 95, 366.
Stephens y. Cherokee Nation, 605.
Sternbach, In re, 208.
Sterritt y. .Young, 586.
Stevens y. Brown, 298.
Stevens y. Truman^ 93.
Stevenson y. Oofferin, 598L
Stevenson y. Colgan, 70.
Steyenson y. Hanvon, 530.
Stewart y. Board of Sup'n of Polk
County, 69.
Stewart y. Gardner, 566.
Stewart y. Ohio River B. Co., 489.
Stewart y. Butland, 493.
Stewart v. State, 698.
Stiokney y. Interstate Commerce Com-
mission, 256.
Stillwell V. Jackson, 68.
Stillwell y. Kellogg, 626.
Stilz y. Indianapolis, 508.
Stimson Mill Co. y. Nolan, 576L
Stockard y. Morgan, 250.
Stockdale t. Bio Grande Western R
Co., 490.
Stockton y. Baltimore & N. Y. B. Co.,
483.
CASES CITED.
[Th« flfUTM refer to pagei.]
809
Stockton & y. R. Co. y. Common Coun-
cil of Stockton, 456» 457.
Stockwell y. Coleman, 300.
Stoddart y. Smith, 62.
Stokes T. New York, 426..
Stokes V. State, 688.
Stolz T. Thompson, 402.
Stone V. diarfestown, 375.
Stone T. Dana, 613.
Stone y. Farmers' Loan 4b Trust Co.,
742.
Stone y. Fritts, 92, 470.
Stone y. Mississippi, 387, 389, 436, 733,
737
Stone y. New York, 396, e08w
Stone y. Paducah, 541.
Stone y. Smith, 6^17.
Stone y. Wisconsin, 741.
Storrie v. Cortex, 722.
Storti, In re, 707, 714.
Story y. Electric R. Co., 489.
Stowe V. Belfast Say. Bank, 188.
Stowe y. Newborn, 472.
Strange y. Oconto Land Co., 64.
Stratford y. Greensboro, 477, 479.
Strander y. West Virginia, 544, 556.
Straus y. American Publishers' Ass'n,
429, 431.
Straw y. Harris, 35, 372.
Street y. Columbus, 93.
Street y. Yamey Electrical Supply Co.,
4ia
Strieker, Ex parte, 594.
Strickley y. Highland Boy Gold Min.
Co., 481.
Strother y. Lucas, 281.
Stryker y. Board of Com'ra of Grand
County, 18a
Stuart y. Laird, 67.
Stuart y. Nance, 316, 365.
Stuart y. Palmer, 442, 573, 595.
Stubbs y. People, 253.
Stumpf y. Storz, 466.
Sturges y. Crowninshield, 260, 748.
Sturgis y. Spofford, 205.
Stutsman County y. Wallace, 187.
Sue, The, 557.
Sudden y. Partridge, 68.
Sulliyan, In re, 188.
SuJlivan y. Gage, 365.
Sullivan y. Gilroy, 673.
Sullivan y. Texas, 730.
Sully y. American Nat. Bank, 294.
Sultan, In re, 306.
Summers y. White, 181.
Sumpter v. State, 593.
Sumter County v. National Bank of
Gainesville, 448.
Sunbury & E. R. Co. y. Cooper, 364.
Sunset Telephone & Telegraph Co. y.
Pomona, 189.
Supervisors of Election, In re, 338.
Supervisors of Sadsbury Tp. y. Dennis,
51o.
Supreme Lodge K. P. y. England, 154.
Surocco y. Geary, 396, 608.
Sutherland v. De Leon, 74.
Sutherland-Innes Co. y. Evart, 454.
Sutter County y. Nicols, 481.
Suydam y. Moore, 741.
Swafford y. Temple ton, 153.
Swaim y. U. S., 115.
Swain y. SchieflTelin, 40L
Swann y. Swann, 530.
Swanson v. Ottumwa, 722.
Swart y. Kimball, 621.
Sweeney v. Baker, 6.51.
Sweeney y. Coulter, 8(>, 318.
Sweeney y. Mcleod. 319.
Sweeney y. Webb, 403.
Swift y. Philadelphia & R. R. Co., 184.
Swift y. Tyeon, 188.
Swift & Co. y. Newport News, 78, 79.
Swift & Co. y. U. S., 217. 241.
Swinburne y. Mills, 750.
Swing y. Brister, 589.
Swinney y. Ft. Wayne, M. & Cw B. Co.,
492, 500.
Swope y. Jordan, 725.
Talbot y. Board of Com'rs of Silver Bow
County, 22.
Tampa Waterworks Co. y. Tampa, 414.
Tandy v. Elmore-Cooper live Stock
Com. Co., 37.
Tanner y. Treasury Tunnel, Min. & Re-
duction Co., 478.
Tappan v. Merchants' Nat. Bank, 448.
Terr y. Western Loan & Say. Co., 380.
Tarrance v. Florida, 556.
Tarrance v. State, 556.
Tayloe, Ex parte, 705.
Taylor v. Adams Exp. Co., 190.
Taylor y. Beckham, 83, 179, 342, 675.
Taylor v. Carryl, 181.
Taylor v. Chandler, 456.
Taylor y. Com., 54, 307.
Taylor v. Crawfordsville, 684.
Taylor v. Gardiner, 621.
Taylor v. Governor, 3.
Taylor y. Kercheval, 95, 13a
Taylor v. Louisville & N. R. Co., 147,
172.
Taylor y. Morton, 102.
Taylor y. Palmer, 461.
Taylor v. Plymouth, 396.
Taylor v. Porter, 572.
Taylor y. Taylor, 77.
Tazewell v. Herman, 78.
Tecumseh Nat. Bank y. Saunders, 51.
Templar v. State Board of Examiners
of Barbers, 410.
Tenement House Department v. Moe-
schen, 60.
Ten-Hour Law for St Ry. Corporations,
In re, 416.
Tennessee v. Davis, 147, 153, 194.
Tennessee y. Jackson, 305.
Tennessee Coal, Iron & R. Co. y. Mc-
Dowell, 748.
Tenney v. Lenz, 467,
Teralta Land & Water Oo^ T. Shaffer,
598.
810
CASES CITBD.
[Th« figures refer to iMcee.]
Terre Haute ft Lh B. Co. t. Salmon,
408.
Territory y. De Wolfe, 564.
Territory v. Guyott, 280.
Territory t. Hefley, 682, 683.
Territory v. O'Connor, 280.
Terry, fix parte, 594, 685.
Terry v. Heisen, 589.
Tezarkana & Ft. S. R. Co. t. Shivel &
Stewart, 233.
Texas v. Gaines, 194.
Texas v. White, 32, 34, 49, 313.
Texas Co. y. Stephens, 249.
Texas & P. R. Cx>. y. Interstate Com-
merce Commission, 216.
Texas 4b P. R. Co. y. Southern Pac. R.
Co., 426.
Thalheimer y. Board of Sup'rs of Mari-
copa County, 374.
Thames Mfg. Co. y. Lathrop, 754.
Thaw y. Ritchie, 275.
Thayer y. Spratt, 179.
Thiel Detectiye Seryice Co. y. McClure,
147.
Thingyalla Une y. U. S., 126.
Thoeni y. Dubuque, 589.
Thomas A. Scott, The, 166.
Thomas Jefferson, The, 157.
Thomas y. Moultrieyille, 460,
Thomas y. Sorrell, 85.
Thomas y. State, 722.
Thomas y. Taylor, 101.
Thomas y. Williamson, 68^
Thomasson y. State, 563.
Thompson, £2x parte, 733.
Thompson, In re, 99, 541.
Thompson y. Carr, 709.
Thompson y. Cobb, 750.
Thompson y. Com., 581.
Thompson y. Darden, 225.
Thompson y. Ckrman Val. R. Co., 319.
Thompson y. Kidder, 80.
Thompson y. Lee County, 756.
Thompson y. McConnell. 185.
Thompson y. Missouri, 711.
Thompscm y. Mitchell, 64.
Thompson y. Morgan, 755.
Thompson y. Pemne, 188.
Thompson y. Powning, 664.
Thompson y. Schenectady R. Go., 151.
Thompson y. Utah, 711.
Thompson y. Van Vechten, 181.
Thompson y. Waters, 292.
Thompson y. Whitman, 298.
Thomsen y. Union Castle Mail S. S. Co.,
238, 241.
Thomson y. Dean, 179.
Thomson y. Union Pac. R. Co., 450.
Thon>e y. Rutland & B. R. Co., 352,
Thrift y. Com'rs of Elizabeth City, 562.
Thurfoer y. Townsend, 599.
Thurston y. Whitney, 535.
Thweatt y. Bank of Hopkinsyille, 755.
Tice, Bx parte, 701.
Tide- Water Co. y. Coster, 442, 458.
Tierman y. Rinker, 248.
Tifft y. Buffalo^ 608.
Tift y. Southern R. Co., 255. 290,
Tilford y. Belknap, 424.
Tims y. SUte, 75.
Tinsley y. Anderson, 588.
Tinsman, In re, 250.
Tinsman y. Belyidere Delaware R. Co.,
494.
Tipton y. Parker, 344.
Tittabawassee Boom Co. t. Canning,
218, 224.
Tod, In re, 304, 306.
Todd y. Clapp, 89.
Todd y. Kankakee & I. R. R. Co., 501.
Tolodo. A. A. & N. M. R. Co. y. Penn-
sylyania Co., 420, 421, 422.
Toledo, etc., R. Co. y. Continental Ttost
Co.. 152.
Toledo, St. Ii. 4b W. R. Co. t. Long,
418.
Toledo Traction Co. y. Cameron, 165.
Toledo, W. & W. R. Oo. y. Jacksonyille,
438.
Toledo & I. Traction Co. y. Toledo & G.
I. R. Co., 485.
Toll Bridge Co. y. Osbom. 465.
Tomlinson y. Bainaka, 64.
Tomsen y. Union Castle Mail S. S. Co.,
23&
Tonawanda y. Lyon, 584.
Toncray y. Budge, 80, 88.
Toney y. Macon, 51S.
Toney y. State, 419, 542.
Tonnage Tax Cases, 68.
Toronto Bank y. Lambe, 200.
Town of Cherry Creek v. Becker, 78.
Town of Cicero y. Chicago, 50S.
Town of Clarendon y. Rutland R. 06.,
737.
Town of Danyille y. Pace, 603.
Town of East Hartford y. Hartford
Bridge Co., 507.
Town of Jacksonyille y. McConnel, 463.
Town of Lake View y. Rose Hill Oeme-
tery Co., 387.
Town of Marietta y. Fearing. 507, 743.
Town of Marksyille y. Worthy, 3^
Town of Mason y. Ohio Riyer R. Co.,
728.
Town of Montdair y. Amend. 424.
Town of Nahant y. U. S., 471.
Town of Ocean Springs y. Oreen, 875.
Town of Orrick y. Akers, 396.
Town of Pawlet y. Clark, 166.
Town of Searsburg y. WoodfonI, 29.
Townsend Gas & Ellectric light Ck>. t.
Hill, 67.
Townsend y. Todd, 186w
Tracy v. Muir, 592.
Trade-Mark Cases, 236, 268.
Trageser y. Gray, 403.
Train y. Boston Disinfecting Oo., 288,
399.
Trainor y. Mayerick Loan & Trust Ca,
581.
Trebilcock y. Wilson, 213.
Trenton Potteries Co. y. Oliphant. 481,
432.
CASES CITED.
[Tht flgores refer to pages.]
811
Trevett t. Weeden, 58.
Tribolet y. U. S., 237.
Trigally y. Memphis, 623.
Trinity College v. Hartford, 500.
Trippet y. State, 581.
Trist y. Child, 351.
Truitt y. U. S^ 119.
Trust Co. of Georgia y. State, 431.
Trustees of Freeholders & CoinmoDalty
of Brookhayeu y. Smith, 730.
Trustees of Griswold College y. Dayen-
port, 580.
Trustees of North Carolina Uniyersity
y. Mclyer, 54.
Trustees of Village of Saratoga Springs
y. Saratoga Gas, Blectric Light, Heat
& Power Co., 85, 06, 98, 413.
Tucker y. Ferguson, 745.
Tuoker y. Massachusetts Cent R. Co.,
490.
Tucker y. Paris, 586.
Tucker y. State, 600, 606.
Tufrman y. Chicago, 519.
Tullis y. Lake Erie & W. R. Co., 186,
417.
Turley y. Logan Co., 349.
Turner, In re, 548.
Turner y. Althaus, 507.
Turner y. American Baptist Missionary
Union, 125.
Turner y. Maryland, 358, 425.
Turner y. Nye, 423.
Turpin y. Burgess, 360.
Turton y. Union Pac. R. Co., 194.
Tuthill, In re, 478, 586.
Twining y. New Jersey, 587, 643.
Twitchell y. Pennsylvania, 677.
Tyler, In re, 172.
Tyler y. Hudson, 499.
Tyler y. State, 344.
Tyson y. Washington Connty, 92.
u
Uehbanks y. Armstrong, 553.
Ullock, The, 22.
Ulman y. laeger, 151.
Ulmer y. Lime Rock R. Co., 56, 478.
Ulsh y. Perry County, 449.
Ulster Square Dealer y. Fowler, 654.
Underground Electrical Rys. Co. y. Ows-
ley, 14a
Underground R. R. of City of New
York y. New York, 729.
Underhill y. Hernandez, 13.
Underwood y. Lilly, 754.
Union Bank y. Board of Com'rs, 722.
Union Bank y. Hill, 208.
Union Bank of Richmond, Va. y. Board
of Com'rs of Oxford, 188.
Union Bank of St. Paul y. Rugs, 748.
Union Bridge Co. y. U. S., 96, 222.
Union Ferry Co. of Brooklin, In re,
372.
Union Pac. R. Co. y. Alexander. 172.
Union Pac. R. Co. y. Botsford, 688.
Union Pac. R. Co. y. Burlington & M.
R. Co., 167.
Union Pac. R. Co. y. Lincoln County,
450
Union Pac. R. Go. y. Peniston, 449, 450.
Union Trust Co. y. Stete, 28.
ITnion Trust Co. y. Trumbull, 385.
Union Trust Co. v. Wayne Probate
Judge, 94, 461.
United CSgarette Mach. Co. y. Wright,
191.
U. 8. y. Adair, 220, 417. 545.
U. S. y. Addystou Pipe & Steel Co.,
237, 242, 243, 244.
U. S. y. Allen, 167.
U. S. y. American Nayal Stores Co.,
239.
U. S. y. American Surety Co., IG8.
U. S. y. American Tobacco Co., 219,
241.
U. S. y. Ancarola, 542.
U. S. y. Anthony, 645.
U. S. y. Arjona, 263.
U. S. y. Atlantic Coast Line R. Co.,
230.
U. S. y. Ballin, 201. 343, 349.
U. S. y. Baltimore & O. B. Co., 451,
476, 487.
U. S. y. Barlow, 265.
U. S. y. Bamhart, 2561.
U. S. y. Barrett, 14L
U. S. y. Bates, 697.
U. S. y. Banm, 281.
U. S. y. Bayard, 95.
U. S. y. Belyin, 199.
U. S. y. BenneU, 265.
U. S. y. Bitty, 546.
U. S. y. Black, 95.
U. S. y. Blaine, 95.
U. S. y. Blasiugame, 287.
U. S. y. Bowyer, 131.
U. S. y. Boyer, 205, 227.
U. 8. y. Brawner, 704.
U. S. y. Breen, 97, 288.
U. S. y. Bridleman, 25a
U. S. y. Bullington. 264.
U. S. y. Burton, 120.
U. 8. y. Central Vermont Ry., 186.
U. S. y. Chesapeake & O. Fuel Co.,
240.
U. S. y. Chicago, 167, 483.
U. 8. y. Chicago, K. & S. R. Co., 229.
U. 8. y. Circuit Court, 9th Circuit, Dist.
of Montana, 192.
U. 8. y. Coal Dealers' Ass'n, 238, 240,
241.
U. S. y. Colorado & N. W. R. Co., 231.
U. 8. y. Coombs, 236, 286.
U. S. y. Corrie, 122.
U. 8. y. Craig, 218, 228, 393.
U. 8. y. Crosby, 608, 648.
U. 8. y. Cruikshank, 34, 543, 548, 639,
668.
U. 8. y. Cutter, 119.
U. 8. y. Dayis, 694.
U. 8. y. De Groat, 184.
U. S. y. Delaware & H. Co., 67, 215,
232, 570.
U. S. y. Detroit Timber & Lumber Co.,
168.
812
CASES CITED.
[Tb« figures refer to pages.]
U. S. ▼. Devereux, 25, 168b
U. S. T. De Walt. 681.
U. S. ▼. Dewey, 300.
U. S. V. Dewitt, 392.
U. S. ▼. Dillin, 593.
U. S. V. Dodge, 594.
U. S. v. Doo-noch-keen, 142,
U. S. V. Duell, 68.
U. S. V. Easson, 265.
U. S. V. Eaton, 183, 394.
U. S. ▼. Eddy. 611.
U. S. V. Eliason, 119.
U. S. V. Erie R. Co., 230, 232.
U. S. T. Ferreira, 338.
IT. S. V. Fletcher, 121.
T'. S. ▼. Fox. 698.
IT. S. V. FrelinghuTsen, 124.
U. S. V. Furlong, 269.
U. S. V. Gale. 199.
U. S. ▼. Geddes, 229.
U. S. V. Gillies, 168.
U. S. y. Grand Rapids & I. E. Co., 124.
U. S. y. Gratiot, 278.
U. S. ▼. Great Northern R. Co., 230.
U. S. T. Grimaud, 97.
IT. S. V. GruRh, 269.
U. S. V. Hadley, 171.
U. S. V. Hanson, 100.
U. S. V. Hanway, 7ia
XJ. S. ▼. Harmon, 654.
TI. S. T. Harris, 474. 648.
U. S. ▼. Haskell, 702.
U. S. V. Hay, 102.
U. S. V. Heaton, 28.
U. S. ▼. Heinszen, 21, 582.
U. S. V. Holliday, 394.
U. S. ▼. Holmes, 167.
U. S. V. Holt, 100, 277.
U. S. ▼. Hopkins, 237, 24l, 262.
U. S. V. Hoxie,' 718.
U. S. ▼. Hudson, 141, 183, 625.
U. S. V. Hughes, 712.
U, S. T. Insurgents, 718.
U. S. V. James, 379.
U. S. V. Joint Traffic Ass'n, 167, 237,
238, 239, 241.
U. S. V. Jones, 119.
U. S. T. Judges of United States Court
of Appeals, 192.
U. S. V. Ju Toy, 596.
U. S. T. Kagama, 279.
U. S. V. Kane, 422.
U. S. V. Kerr, 190.
U. S. ▼. Kilpatrick, 190.
U. S. V. Kochersperger, 264, 266.
U. S. V. La Chappelle, 25.
IT. S. V. Lawrence, 706.
V. S. V. Le Baron, 128.
U. S. V. Lee, 85, 166, 171.
U. S, T. Lee Huen, 393, 633.
U. S. V. Leslie, 185.
U. S. V. Lytle, 329.
U. S. V. MacAndrews & Forbefl Co.,
238, 241, 243.
U. S. V. McCrory, 166.
U. S. y. Macdaniel, 183.
U. S. T. McKee, 324.
U. S. y. Mariffold, 262.
U. S, V. Martin, 416.
U. S. y. Matthews, 97.
U. S. y. Maurice, 12&
U. S. y. Miller, 191.
U. S. y. Mills, 142.
U. S. y. Mitchell, 190. 7ia
U. S. y. Moore, 571, 643.
U. S. y. Newcomer, 548.
U. S. y. New Orlpans, 192.
U. S. y. Noojin. 16a
U. S. y. North Carolina, 168, 170.
U. S$. y. Northern Securities Co., 237,
289, 245, 566.
U. S. T. One Hundred and Twenty-Nine
Packages, 101.
U. S. y. Ormsbee, 97, 28a
U. S. y. Ortega, 156.
U. S. y. Palmer, 134.
U. S. y. Patterson, 239.
U. S. y. Peters, 337.
U. S. y. Philadelphia & R. R. Co.. 62a
U. S. y. Railroad Bridge Co., 48a
U. S. y. Rathbone, 62a
U. S. y. Rauscher, 307, 355.
U. S. y. Realty Co., 214. 36a
U. S. y. Reese, 648.
U. S. y. Reid, 167.
U. S. y. Rhodes, 548, 634.
IT. S. y. Romard, 28a
U. S. y. Root, 115.
U. S. y. Ross, 209.
U. S. y. Sandoval, 101.
U. S. y. San Francisco Bridge Co., 276.
U. S. y. Sargent, 167.
U. S. y. Schurz, 95.
U. S. y. Shaw-Mux, 257.
U. S. y. Sins: Tuck. 596.
U. S. y. 650 Cases Tomato Catsup, 401.
IT. S. y. Sin tor, 227.
U. S. y. Southern R. Co., 215, 217, 230
U. S. y. Standard Oil Co., 413.
U. S. y. Standard Oil Co. of Indiana,
230.
U. S. y. Standard Oil Co. of New Jer-
sey, 241. 243.
U. S. y. Swift & C0m^239. 431.
U. S. y. Symonds, 119.
U. S. y. Taft, 131.
U. S. y. Texas, 102, 168, 17a
U. S. y. The Queen, 624.
U. S. y. Todd, 33a
U. S. y. Trans-Missouri Freight Aas'n,
71, 238, 239. 241, 243.
U. S. y. Tygh Val. Land Co., 167.
U. S. y. Tynen, 600, 727.
U. S. y. Union Pac. R. Co., 141.
U. S. y. Vacuum Oil Co., 4ia
U. S. y. Villato, 257.
U. S. y. Waddell, G42.
U. S. y. Wagner, 167.
U. S. V. Walker, 168.
U. S. y. Warren, 16a
U. S. y. Wells, 190.
U. S. y. White, 263.
U. S. y. Wickersham, 131.
U. S. y. Williams, 393. 534, 687, 638.
CASES CITED.
[TlM figures refer to pages.]
813
U. S. T. Wilson, 121, 324.
U. 8. T. Wong Kim Ark, 632, 633, 634,
635.
U. S. V. Wong Qaong Wong, 607, 610,
611.
U. S. T. Wootten, 265.
U. 8. ▼. Workingmen't Amalgamated
Council, 240.
U. S. y. Zarafonitis, 190.
U. S. V. Ziicker, 600.
United States Electric Power & Light
Co. V. State, 4G5.
United States Fidelity & Guaranty Co.
V. Rainey 2S.
United States Fidelity & Guaranty Go.
V. U. S., 167.
United States Freehold Land & Em-
igration Go. y. Gallegos, 154.
United States Life Ins. Co. y. Cable,
151.
United States Tobacco Go. y. American
Tobacco Co., 241.
Upton y. Hume, 666.
Utah Min. & Mfg. Co. y. Dickert & My-
ers Sulphur Co., 278.
Vallelly y. Board of Park Gom'rs of
Park Dist of Grand Forks, 375.
Van Allen y. Assessors, 212.
Van Antwerp, In re, 452.
Vanbome v. Dorrance, 503.
Van Brocklin y. Tennessee, 446.
Vance y. Vance, 748.
Vance y. W. A. Vaudercook Co., 232.
Van Cleye y. Passaic Valley Sewerage
Com'rs, 505.
Vanderheyden y. Young, 145.
Van Deusen y. Newcomer, 338.
Van Deyenter y. Long Island City, 758.
Vandeweghe t. American Brewing Co.,
428.
Van Home, In re, 545, 552.
Vanhorne y. Dorrance, 56.
Van Hoven, Ex parte, 119.
Van Ness y. Pacard, 0.
Van Valkenburg v. Brown, 632, 645w
Van Vleet y. Sledge, 189.
Van Vranken, Ex parte, 144.
Varick's Ex'rs y. Briggs, 756.
Vamey y. Justice, 78.
Varney & Green y. Williams, 490.
Vaughn y. Harp, 94.
Vaughn y. Seade, 620.
Veazie Bunk y. Feuno, 208, 209.
Veazie y. Moor. 216, 221.
Vela y. State, 702.
Veto Power, In re, 325l
Vicksburg y. Tobin, 361.
Vicksbuiv Waterworks Go. y. Vicks-
burg, 5<8.
Vicksburg & M. R. Co. y. Putnam, 623.
Victoria Lumber Co. y. Riyes, 80.
Victor Talking Mach. Go. y. The Fair,
153
Vidal*, In re, 177.
Vidal y. Girard, 529.
Viemeister y. White, 72, 899, 569.
Village of Bloomer y. Bloomer, 28.
Village of Carthage y. Frederick, 423.
Village of Fairyiew y. Giffee, 84.
Village of Gloyersyille y. Howell, 376,
Village of Hyde Park y. Oakwoods
Cemetery Ass'n, 469.
Village of Little Chute y. Van Camp,
96.
Village of New Holland y. Holland, 605.
Village of Norwood y. Baker, 586.
Village of Twin Falls y. Stubbs, 480.
Vincenheller y. Reagan, 734.
Vindicator Consol. Gold Min. Co. y.
Firstbrook, 417.
Vinegar Bend Lumber Co. y. Gak Groye
& G. R. Co., 478.
Vines y. State, 296w
Virginia, £x parte, 556» 595.
Virginia y. Riyes, 556.
Virginia y. Tennessee, 29, 356.
Vii|inia y. West Virginia, 29, 176, 284,
Virginia Coupon Cases, 729, 730.
Vitzhum y. Large, 191.
Vo^l y. Gruax, 661.
Voight y. Board of Elxcise Com'rs of
Newark, 575.
Voight y. Detroit, 584.
Voight y. Wright, 358.
Von Der Ahe, In re, 539.
Von Hoffman y. Quincy, 512»
Von Hoffman y. Quincy, 750i
Voss y. Neineber, 165.
w
Wabash, St. Ia & P. R. Co. ▼. Illinois,
246, 413.
Wabash & E. Canal Co. y. Beer^ 179.
Wade y. Chaffee, 537.
Wade 7. Trayis County, 188.
Wadleigh, Ex parte, 87.
Wadleigh y. Newhall, 640.
Wugner, Ex parte, 310.
Wnhl V. Franz, 147.
Waite, In re, 14.
Waite y. Santa Cruz, 147.
W^albridge y. Board of Com'rs of Russell
County, 601.
Walcott y. People, 453.
Wales y. Whitney, 143.
Walker, In re, 307, 538.
Walker y. Cincinnati, 352, 456, 457.
Walker y. Cronip, 422.
Walker y. Flint, 181.
Walker y. Hallock, 12.
Walker y. Jameson, 389.
Walker y. Marks. 186.
Walker y. Sauyinet. 619, 644.
Walker y. Shasta Power Co., 478, 4S0.
Walker y. Tribune Co.. 667.
Walker y. Whitehead, 617.
Wall, Ex parte, 377, 025.
Wall V. Norfolk & W. R. CO., 253.
Wallace y. Adams, 142.
01* CA8B8
[Tb* Bxnm r
Wallace T. Arkanau Cent B. Go-. 414.
Wallace t. Board of Eqnaliutioii, 80:
Wallace t. Loomia. 372.
Wallace t. Reno, 352.
Wallace t. State. 702.
WalUch T. Van RiRwick. 719.
Wailenbarg t. Miraouri Pac. R. Co., 638.
Wallinj V. Miohuan, 249, 296.
Walp V. Mooar, 426.
Walsec V. ScllEman, 298.
Walsh y. Dearer, 438.
Walsh V. U. S., 144.
WaletoD V. Com.. G91.
WalstOQ T. Nevin, 5S4.
Walter A. Wood Mowing ft BeaplnK
Mech. Co. y. Skinner. 178.
Waller v. People. 684.
Walten, In re, 399.
Waltervcheid v. Bowdish, 724.
Walther v, Warner, 478.
WaibuitoD V. White. 187.
W*rd V. Consreaa Const Co., IST.
Ward T. Marrland, 204, 202, 295.
Ward T. 8Ute, 877, 588.
Ward V. Tboinaa, 334.
WardcD *. Whalen, 661.
Ward Lumber Co. v. Hendervm-Whlte
Hf|. Co., 678.
Ware v. Hylton. 120.
Ware k Leland Co. v. Mobile CoautT,
260.
Werfleld t. Vandiver. 52.
Waring v. Clarke, 157.
Waring V. Mobile. 228, 359.
Warner v. Searle A Henth Co., 236.
Warner v. State. 494.
Warren y. Mavor, etc., 74.
Wamn t. Wilner, 590.
Warren Mtg. Co. v. MtM lu. Co., 206,
296.
Washburn t. Pullman's Palace.Car Co.,
26.
Waahlngton Nat. Bank v. Dallr, 610.
Waahinzton & B. Turnpike Co. v. Mary-
land, 781.
Waatene; v. Schott, 25.
Waterbury t. Piatt Bros. A Co., 47&
Water Front in City ot New York, In
re. 5M.
Waterloo Woolen Mfg. Co. t. Shanahan,
Wate
V. Dixie Lamber ft Mfg. G«.,
Waters-Pierce Oil Co. T. State, 421, 427.
Waters-Pierce Oil Co. v. Tela*, 17a
Watkina v. Glenn, 750.
Wataon r. BonGls. 164.
Watson T. Brooks, 164.
Watson T. St. Loula, I. M. A S. R. Co.,
Wayman t. BouUiard, 82.
W. B. Menrshon & Co. t. Pottarille
Lwnber Co., 246.
W. C. Peacock ft Co. v. Pratt, M, 403,
553.
Weare Commlsaiou Co. v. People, 398.
Weaver v. Fernlr, 203.
Webb y. Bairi. 461.
Webb y. Moore, 746.
Webb T. York. 305.
Webber r. SUte Harbor Com'rs. 468.
Webber v. Vindnia, 248, 207. 296.
Webster v. Auditor General. (i&7.
Webmer v. Fargo, 584.
Webster y. Btate, 549.
Weed T. Bingbamton, 601.
WeiKand v. Diatrict of Colombia, 71.
Weil T. Calhoun. 376.
Weill T. KenBeld. 7B. 379.
Welmer, Ex parte, 325.
Weimer v. Bunbury. 66, 609^
Welmer v. Zevely, 696,
Weir T. Norman. 248.
Weir V. State. 66.
Weirman t. U. S.. 6B3.
Welsberf t. Welsbenr, 89.
Weismer y. Douglas. 308, 456.
WeUt T. Wnlier, 747.
Welch T, Cook, 727.
Welch T. Milwaukee ft St. P. B. Co.,
499.
Welch T. Swaaey, 375, 424.
Welch T. Wads worth, 72.
Welch Water, Light ft P. Co. t. Welch,
730.
Welharen, The, 126.
Weller t. WheeloiA. 746.
WelllDgtoo, In re, 64.
Wellmaker v. Terrell, 68.
Wells T. Bain. 49.
Wells T. Clark, 190.
Weill y. State, 694.
Wells V. Weaton, 456.
Wells F - *
Welsh V ___.
Welsh T. Slate, 293.
Wclton T. Misaoarl, 219. 248.
Wendover t. To eke r, 640.
Wenham *. State, 416.
Weni V. U. S., 130.
Wesley v. E^ells, 357.
West Chicago St R. Co. t. IlllnolB, 178.
Western Implement Co., In re, 28.
\\^iem Nat. Bank v. Beckleaa. 724,
Phtladel-
726.
Western Sav. Fund Soc. '
_phia, 611.
Weatera Turf Aaa'n t. Oreenberg, 178,
673. 636.
Western Union Tel. Co. t. Alabama
State Board of Assessment, 235.
Western Union Tel. Co. t. Andrewa.
170, 171, 172.
Western Onion Tel. Co. t. Attomej
Oeneral, 235.
Western Union Tel. Co. t. Call Pnb
Co.. 220. 246.
Western Union Tel. Co. t. ChUei. 277.
CASB8 CITED.
[The figures refer to pages.]
815
Western Union TeL Co. ▼. Hughes^ 235.
Western Union Tel. Co. y. Indiana,
553.
Western Union Tel. Co. ▼. Julian, 81,
171.
Western Union Tel. Co. t. Louisiana
R. Com., 77.
Western Union Tel. Co. t. Massachu-
setts 440.
Western Union Tel. Co. ▼. Mayer, 295.
Western Union Tel. Co. v. Missouri,
247.
Western Union Tel. Co. v. Myatt, 82,
84. 335, 413, 414.
Western Union Tel. Co. y. Pendleton,
234, 8d2, 435.
Western Union Tel. Co. v. Pennsylvania
R. Co., 473, 479, 486.
Western Union Tel. Co. v. Richmond,
448.
Western Union Tel. Co. ▼. State, 74, 295.
Western Union Tel. Co. y. Taggart, 285.
Western Union Tel. Co. y. Texas, 235,
Western k Southern Life Ins. Co. y.
Com., 878.
Westminster, The, 190.
Westminster Water Co. y. Westmins-
ter, 735.
Weston y. Charieston, 447.
Weston y. City Council of Charleston,
212.
Weston y. Herdman, 365.
Weston y. Ryan, 50, 51.
West Riyer Bridge Co. y. Diz, 483, 731,
738, 741.
Weyand y. Stover, 380.
Weyerhaueser y. Minnesota, 582.
Whallon y. Bancroft, 679.
Wheaton y. Beecher. 666w
Wheaton y. Peters, 266.
Wheeler y. Essex Public Road Board,
502.
Wheeler y. Herbert, 342, 372, 375.
Wheeler y. Philadelphia, 371.
Wheeler y. Rice, 61.
Wheeler y. Wall, 467.
Wheelex^Stensel Co. y. Nat. Window-
Glass Jobbers Ass'n, 238, 243.
Wheeling Bridge Co. y. Wheeling k B.
Bridge Co., 486.
Wheeling, P. k C. Tvansp. Co. y. Wheel-
ing, 224, 360.
Wheeling & B. Bridge Co. y. Wheeling
Bridge Co., 72a
Wheelock y. Lowell, 51&
Wheelock y. Myers, 605.
Wheelock y. Yonng* 485.
White, EiX parte, 411.
White, In re, 304.
White y. Burnley, 297.
White y. Cannon, 32.
White y. Carroll, 410.
White y. Charlotte 4b S. a R. Co., 499.
White y. Crump, 73a
White y. Hart, 735.
White y. Holman, 411.
White y. Kendrick, 61.
White y. McBride, 584.
White y. Northwestern North Carolina
R. Co., 488, 489.
White y. Son Pub. Co., 65.
White y. Tacoma, 584.
Whitehead y. Shattuck, 150.
Whitehurst y. Coleen, 627.
Whitely y. Mississippi Water Power &
Boom Co., 500.
White River Turnpike Co. y. Vermont
Cent R. Co., 493.
White's Bank v. Smith, 223.
Whitford v. Panama R. Co., 363.
Whiting v. U. S., 130.
Whitley, Ex parte, 409.
Whitlock y. Hawkins, 352, 753, 757.
Whitman y. Boston & M. R. Co., 500.
Whitney y. Robertson, 125.
Whitwell y. Continental Tobacco Co.,
237, 238, 239, 241.
Wicomico County y. Bancroft, 186^
Widaman y. Hubbard, 151.
Widmayer y. U. S.. 668.
Wiemer y. Louisville Water Co., 163.
Wilcox y. Jackson, 119.
Wilcox y. McClellan. 99.
Wilder y. Bank. 154.
Wiley y. Sinkler, 64.
Wilkerson v. Utah, 707.
Wilkes-Barre v. Garebed, 404i
Wilkes' Case, 656.
Wilkes y. Wood, 612.
Wilkins v. Jewett, 428.
Wilkins y. State, 409.
Wilkison y. Board of Children's Guard-
ians, 95.
Willamette Iron Bridge Co. v. Hatch,
234.
Willard v. Sturm, 749.
Willcox y. Consol. Gas Co., 490.
Willfong v. Omaha 4b St L. R. Co., 251.
Williams, Ex parte. 542.
Williams, In re, 252, 417.
Williams y. Armroyd, 299.
Williams y. Augusta, 519.
Williams y. Bmffy, 722.
Williams v. Cammack, 373.
Williams v. Chapman, 181.
Williams v. Crabb, 147.
Williams v. Eggleston, 64, 549.
Williams v. Fears, 411.
Williams y. Galveston, 589.
Williams y. Mississippi, 556.
Williams y. Nashville, 70.
Williams y. Port Chester, 589.
Williams y. SecreUry of State, 342.
Williams y. SUte, 68. 390, 550.
Williams y. U. S., ^.
Williams' Adm'r y. Newman, 587.
Willis y. Board of Com'rs of Wyandotte
County, 18a
Willis y. Kalmbach, 648.
Willis y. Standard Oil Co., 467.
Willner y. Silverman, 420.
Wilmarth v. Burt 14.
Wilmington y. Bryan, 72a
816
CASES CITBD.
[Tfa« figures refer to iMges.]
Wilmington Star Min. Co. y. Fulton,
551.
Wilmington & R. B. Co. v. Stauffer»
492.
Wilmington & W. R. Co. ▼. Reid, 744.
Wilshire, In re. 424, 435.
Wilson, Biz parte, 681.
Wilson V. Blackbird Creek Manh Co.,
220, 226.
Wilson V. Chicago Sanitary Dist, 209.
Wilson ▼. Edwards, 552.
Wilson V. Head, 602.
Wilson Y. Iseminger, 747.
Wilson Y. Louisiana Purchase Exposi-
tion Commission, 27.
Wilson V. Noonan, 665.
Wilson y. North Carolina, 546, 688.
Wilson y. Pickering, 724, 726.
Wilson y. Shaw, 21, 279.
Wilson y. Simon, 747.
Wilson y. Smith, 165.
Wilson y. State, 679. 706.
Wilson y. United Traction Co., 895, 413.
Wilson y. Wood, 90, 605.
Winchester & S. R Co. y. Com., 97, 551.
Winnett y. Adams, 524.
Winnipiseogee Lake Cotton & Woolen
Mfg. Co. y. Gilford, 363, 453.
Winpenny y. French, 350.
Winthrop, In re, 115.
Winthrop y. Lechmere, 57.
Wisconsin y. Pelican Ins. Co., 27, 174.
Wisconsin Cent. R. Co. y. Price Coun-
ty, 446.
W^isconsin Cent R Ca y. Taylor Co.,
446.
Wisconsin Cent. R Co. y. U. S., 120.
Wisconsin, M. & P. R Co. y. Jacobson,
407, 737.
Wisconsin Riyer Imp. Co. y. Pier, 473,
477 481.
WiseV. Bigger, 343, 349.
Wise y. Nixon, 155.
Wise y. Withers, 144.
Wiswall y. Sampson, 182.
Witherspoon y. Duncan, 446.
Wittenberg y. MoUyneaux, 428.
Woldson y. Larson, 189.
Wolfe y. McCaull, 83.
Wolfe Tone's Case, 144.
Wolsey y. Chapman, 119.
Wong y. Astoria, 685, 686.
Wong Him y. Callahan, 547.
Wong Kim, In re, 634.
Wong Wai v. Williamson, 547,
Wood, Ex parte, 546.
Wood V. Bellamy, 600.
Wood V. Fitzgerald, 648.
Wood y. U. S., 86.
Woodard y. Brien, 370.
Woodfolk V. Nashville & C. R Co., 500.
Woodmere Cemetery y. Roulo, 469.
Wood Mowing & Reaping Co. y. Green-
wood Hardware Co., 428.
Woodrough v. Douglas County, 375.
Woodruff y. North Bloomfield Grayel
Min. Co., 490.
Woodruff y. Parliam, 24& 859.
Woodruff y. Trapnali, 857«
Woods* Appeal, 54.
Woods y. Cottrell, 579.
Woodson y. State, 419.
Woodward y. Lander, 672.
Woodward y. Murdock, 323.
Woodward y. State, 702.
Wooster y. Bateman, 748.
Wooster y. Crane, 153.
Work y. State, 621.
Wortman, In re, 643, 673.
Wright y. Com., 543.
Wright y. Cradlcbaugh, 446, 588.
Wright y. Hart, 426.
Wright y. Lothrop, 671.
Wright y. Louisville & N. R Co., 465.
Wright y. State Board of liquidation,
26.
Wunderle v. Wunderle. 125.
Wurts v. Hoagland, 423.
W. W. MonUgue & Co. y. Lowiy, 240,
241.
Wyatt y. People, 90, 594.
Wyatt y. Smith, 599.
Wyatt y. State Board of EXjnalisation,
103.
Wyeth v. Board of Health of Cambridge.
374, 411, 559.
Wynehamer v. People, 388.
Wynkoop v. Cooch, 626.
Wyoming Nat. Bank v. Brown, 724.
Yadkin River Power Co. y. Whitney Co^
481.
Yalabusha County v. Carbry, 333.
Yarbrough, Ex parte, 645, 650.
Yates v. Milwaukee, 426.
Yates v. Robertson, 351.
Yazoo & M. V. R Co. v. Adams, 1S6.
Yazoo & M. V. R Co. v. G. W. Bent &
Co., 233.
Yaroo & M. V. R. C6. y. Harrington,
408.
Yazoo & M. V. R. Co. v. Searles, 428.
Yazoo & M. V. R. Co. v. Thomaa, 744.
Yeatman v. Foster County, 749.
Yeomans y. Heath, 602.
Yick Wo y. Crowley, 181.
Yick Wo y. Hopkins, 438, 547.
Yoe V. Hoffman, 321.
Youghiogheny Bridge Co. y. Pittsbnri^h
& C. R Co., 486.
Young America, The, 158.
Young, Ex parte, 68, 152, 169, 172, 223,
403. 546, 575.
Young y. Com., 69, 411, 412, 525.
Young y. Jackson, 584.
Young v. Lemieux, 426.
Young v. Salt Lake City, 69.
Young V. Wise, 627.
Youngblood v. Sexton, 467.
Younger v. Judah, 544.
Yung Jon, Ex parte, 400.
Zander t. Ooe, 884.
Zebnder t. Baibtr Aiphalt Par. C6., 584.
Zeigler ▼. Boath & N; A. B. CkK, 408.
Zeiswein y. James, 528.
CASES CITBD.
[The flguree refer te iMcec]
Zellan t. National Soretj Co., 606.
Zenger'a Otie, 655.
Ziebold, In re^ 572.
Zimmerman ▼. Ganfield, 480. 502.
Zirde ▼. Southern B. Ck)., 474.
Zolnowski ▼• Illinois Steel Co., 546.
817
Bl.Oon8T.L.0d.Bd.)-^
INDEX.
[the nOUBES BXFKB TO PA«M.]
A
ACTION, OAUSB OF,
SB a Teeted rli^t, 602.
ADJOUBMMENT,
of ccmgresB, may be ordered by PresldeDt, when, 183L
of state legislature, bs goremor, 820.
ADMINISTRATXYB BOARDS AND OFBICODBS,
delegation of legialatlTe power to, 96.
cannot create new criminal offenses, 96.
requirement of due process of law applicable to^ OOGL
ADMIRALTY,
federal jurisdiction in, 157.
territorial extent of; 157, 15&
subjects of Jurisdiction in, 158L
in prise cases, ezcluslre, 16L
no jury trial in, 627.
ADinSSION OF 8TATB&
power of congress in regard to, 281.
ADUI/TBRATION,
of food products, federal statute against, 227, 896.
state laws against, 401.
ADVBRTI8ING SIGNS,
Tslidity of laws regulating display and style of, 42i.
ADVISORY OPINIONS,
by the courts, 106.
ALIBN OONTRAirr LABOR LAW,
vaUdlty of. 22a
ALIENS,
Jurisdiction of fMeral courts orer, 162.
naturalisation of, 257.
exclusion and d^;)ortation of, 898.
entitled to equal protection of laws, 547.
entitled to due process of law, 578.
AMBASSADORS,
to be appointed by President, 127.
foreign, to be recelTed by President, 188L
may be dismissed by President, 188.
cases affecting, federal Jurisdiction of, lOOL
Bl.Ooitst.L.(8d.Bd.) (819)
820 INDKX.
rriM flgurw Kf cr to f gw|
AMEM>MBNT»
Of federal constltatioii, 46.
the first ten emeiidmenti» 4flL
elerenth amendment, 40.
twelfth amendment, 47.
laet three amendments, 47.
President's approTal of, 48b
of state oonstitntion, 4^-54.
mode of amendment, 49.
proceedings in legislature, 60.
submission and election, 50.
gOTemor's approral, 61.
promulgation of result, 62.
province of the courts, 82.
limits of power, 62.
powers of constitutional conrention, 68.
effect of amendment, 64.
of diarter of corporation, when permissible, 740.
AMNESTY,
power of congress to grant, 122.
distinguished tmm pardon, 822.
ANCILLARY JURISDICTION,
of federal courts, 161.
APPELLATB JURISDICTION,
of United States supreme court, 176.
APPOINTMENTS TO OFFICE,
to be made by President, 127.
senate to confirm, 127.
Tacandes occurring during recess of senate, 129l
inferior oflicers, 128w
bj state goremor, 820.
do not create contracts, 784
APPORTIONMENT,
of federal representatiTes, 107.
of members of state legislature, 841.
of taxes, 442.
APPRAISAL LAWS,
as afTecting obligation of contracts, 740.
APPROPRIATION OF PROPERTY,
under power of onlnent domain, see Eminent Domain.
APPROPRIATIONS,
control of congress orer, and expenditure of public fnnds» 218L
no money to be drawn but in pursuance of, 280.
control of state legislature over, 866.
for bounties and charities, 800.
ARBITRARY EXACTIONS,
distinguished from proper taxation, 442.
ARMS,
right to bear, guarantied* 648^
I
IMDBX. ***"
821
[Tte flsuTM refer to pegM-]
ARMY,
Praiideiif a powers as commander In chief of, 114^
artkdea of war and army regulations, 110.
authority of congress over, 270.
stipendiary, states may not maintain, 861.
quartering of soldiers, 618.
ABMY RBGULATIQNS,
origin and authority of, 116L
ARBBST,
President not liable to, 111.
members of congress privileged against, 200.
members of state legislature priilleged against. Ma
when lawful, 686.
without warrant, 686.
on general warrants, 611.
ARTICLBS OF OONFEDKRATION.
adoption of, 40.
provisions of, 40, 41.
defects and failure of, 42.
A88SMBLT AND PBTITION,
right of, 66a
secured by constitution, 66a
meaning and extent of, 668-671.
statements i^vileged, 671.
ASSBSSBIBNT OF DAMAGBS,
for property taken under power of eminent domain,
ASSESSMENT OF TAXES,
requirement of due process of law applicable to, 682.
ASSESSMENTS, LOCAL,
requirement of equality and unif<Mrmity as to, 461.
requirement of due process of law applicable to, 684.
ATTAINDER,
bills of, forbidden, TOa
forfeiture as a consequence of, 7ia
ATTORNEY,
regulation and licensing of, under police power, 40a
prlYllege of, in trial and argument, 663.
right of prisoner to assistance of, 6M.
AUTOMOBILBS,
regulation of use of streets by, 48a
B
BAIU
ezcesslTe, not to be required, 704.
BANKRUPTCY,
authority of congress over subject of, 26a
when exduslTe of state action, 260.
constitutionality of national bankruptcy laws, 26a
laws» when violate obligation of contracts, 74a
822 INDBZ.
(TIM flgnrM nttr to p«cm.]
BAABBB8,
recolatlon and Uoemilng of, under police power, 4I0l
BBARINO ARMS,
right of, gaarantled, 648.
BISTTEBMBNT LA.W8,
Talldity of, 009.
BIBIiB»
reading of. In public idioola, 629.
BIGTCLE8,
regulation of use of streets by, 488.
BIU^BOABDS,
Tallditjr of laws regulating erection of, 424; 400n.
BILL OF RIGHTS,
nature and office of, 9.
BILLS,
leglslatiTe, introduction and passage of, 87a
BILLS OF ATTAINDER,
forbidden to be passed, 708.
BILLS OF CREDIT,
states may not emit, 857.
BLASPHEMY,
constitutionality of laws punishing, 397, 581.
BOARDS,
administratlTe, delegation of legislative power to, 96.
requirement of due process of law applicable to, 595.
BONDS,
of United States, not taxable by states, 447.
payment of damages in eminent domain proceedings in, 50S.
BOROUGHS,
see Municipal Ck)rporatlons.
BORROWING MONEY,
power of, in congress, 211.
BOUNDARIES,
of states, how fixed and determined, 2a
between states, settlement of disputes as to, 178.
of municipal corporations, leglslatiye control of, 60&
BOUNTIES,
legislatlTe, constitutionality of, 368.
taxation for payment of, 455.
BOYCOTTS,
when illegal, 419.
as interfwence with interstate commerce, 240.
as combination in restraint of trade, 420.
BREAD,
police regulations fixing weight of, 426.
BRIBERY,
Of legislators, a criminal offense, 848L
INDEX. 823
CTlM flgurw nf tr to p«cm.]
BRID0S8,
interstate, control of oongreee orer, 283.
BXniiDINQ REGULATIONS,
Talldity of, BB police resolutions, 428.
BURBAU OF STANDARDS,
establishment and functions of, 28L
BUSINESS,
state engaging in, 27.
municipal corporations engaging In, 510.
see, also, Ck>ntractB; Labor; Occupation; Police Power; Profes-
siona; Trades.
BT-LAWS,
of municipal corporations, 617.
c
OABiNirr,
composition of, 117.
to advise President in writing, US.
are agents of President, 118^ 119.
dTil responsibility of, 120.
mandamus to members of, M, 12L
succeed to presidency when, 109.
may be authorised to appoint Inferior officers, 127.
authority to make rules and regulations, 119.
GARBIBRS,
control of, under police power, 406.
regulation of charges of, 413.
interstate, taxation of, by states, 449.
receipts from transportation of mails not taxable, 448^
discriminations against passengers, when unlawful, 656.
regulation of business of, 569.
engaged in interstate commerce, see Commevee.
OASES AT LAW AND IN EQUITY,
what are, 147.
CEDED DISTRICTS,
Philippines, Porto Rico, and Canal Zone, 20l
JurlMlction of congress orer, 274.
CENSORSHIP,
of the press, 668.
CHINESE,
exclusion and deportation of, 398.
oititled to "equal protection of laws,** 547.
disqualification of, as witnesses, 664.
prohibiting employment ot as laborers, 666.
children of, bom in America, are dtlsens, 684.
CHRISTIANITY,
as a part of the law of the land, 628.
OHUROH AND STATE,
union otf forbidden by American constitutions^ 889L
J
824 INDBZ.
ITb* igurM rtf tr to pacta.]
CIGABfirrTBB,
▼aUdlty of lawi forMddlnc SAle of, 400l
OITIZBNSHIP,
as a ground of federal Jnrladictloii, 168.
and naturalization, power of congress over, 257«
interstate rights and priylleges of, 292.
provisions of fourteenth amendment as to, 631.
purpose and effect of, 682.
definition of, 683L
native-born citizens, 688^
women and children, 68&
corporations, 686.
Indians, 636.
naturalisation, 687.
expatriation, 63&
double dtisenship in the United States, 68a
I^vlleges of citizens of the United States, 640l
CIVIL RIGHTS,
meaning of the term, tS2i,
liberty of conscience, 527.
personal liberty, 685.
slavery abolished, 540.
right to bear arms, 548.
the pursuit of happiness, 544.
equal protection of the laws, 544.
dvU-righta acts, 547.
right to choose occupation, 568.
freedom of contract, 566.
marriage and divorce, 567.
sumptuary laws, 56&
education, 568.
due process of law, 570.
in revenue and tax proceedings, 680.
in Judicial action, 587.
protection of vested rights, 586.
unreasonable searches and seizures^ 606L
quartering of soldiers, 616.
right to obtain Justice freely, 617.
trial by Jury, 61&
freedom of speech, 650.
right of assembly and petition, 668.
CIVIL SBRVICE ACT,
tenure of office thereunder, 180.
CIRCUIT COURTS OF APPEALS,
Jurisdiction of, 177.
CITIBS^
see Municipal Corporations.
CLASSIFICATION,
of municipal corporations, 517.
of persons and property for purpose of taxation^ 4ttL
and equal protection of law% 550.
IMDBX. 826
(TiM tgwm rtf tr to pagM*]
Oam MONBT,
power of congwei to, 212,
sUtM may Dot» 868.
00L0NIB8,
Porto Bloo, PhUlppiiMg, and Oanal Zone, 20.
Brltlflh In America, poeltlon and government of, 8&
CX>LOBBD PERSONS,
equal civil rights of, aee Equal Protection of Lawa.
dtlsenshlp of, 682.
right of suffrage of, M7, 84&
CX>MBINATI0N8 IN RBSTRAINT OF TBADO,
federal statutes against, 23d.
state laws prohibiting, 428.
strikes and boycotts as^ 42a
OOMITY,
see Interstate Law.
GOMMANDEB IN CHIEF,
Presidoif s powers as, 114.
OOMMEBCE»
power of congress to regulate, 214 et seg.
origin of the power, 214.
extent of the power, 215.
what is included, 217.
when ezclusive, whoi concurrent, 219l
navigation, 221.
vessels, 22&
regulation of ports and harbors, 224
embargo, 224.
pilotage, 226.
quarantine, 226.
imports, 227.
immigration, 228L
railroads, 229.
bridges, 233.
telegraphs, 284.
trade-marks, 288.
penal legislation, 238.
commercial law, 244.
limitations on the power, 246.
state interference with ccnnmerce power, 246.
interstate commerce act, 258.
commerce with Indian tribes, 268.
state police power and the regulation of, 250.
OOMMEBGIAL LAW,
congress has no authority to establish a general code of, 944^
OOMMISSIONS,
administrative, delegation of legislative power to, 98.
requiremoit of due process of law applicable to, 68Qw
OOBiBHTTBES,
legislative, power of, in examining witnesses, 348, 848.
826 IKDBX.
(TiM flcwM riter to p«CM.]
OOMMON LAW,
adoption of, In America, 9, 89.
Interpretation of oonatitntiona with leferenoe to, 78L
no common law of the United States, 188.
not exdnalTe standard of due process of law, 671.
OOMMUTATION OF TAXBS,
constitntional ralidity of, 468.
O0MPA0T8,
between states^ may be authorised by congress, 85BL
OOHPBNSATION,
for priTate property taken for public use, 4Mw
tribunal for determining, 4UL
method of assessing, 406b
measnre of, 497.
eridence. 601.
payment of, 602.
payment to be in money, 606.
CX>NDEMNATION PROCEBDINOS^
see Eminent Domain.
CX>NI>ITIONAL LEGISLATION,
Talidity of, 377.
OONFKDBRATE STATES,
status of, 82.
CONFEDERATION, ARTICLES OF,
adoption of, 40.
proYisions of, 40, 41.
defects and failure ot 42.
CONFISCATION ACTS,
▼aUdity of, 676.
CONFLICT OF LAWS,
see Interstate Law.
CONGRESS,
see, also, House of Represratatiyes ; Senate,
overruling President's reto, 112.
may be convened or adjourned by President, when, 183^
power to establish inferior courts, 140l
constitution of, 196.
qualification of members of, 196^ 197.
election of members of, 197.
meetings of, 197.
organization and government of, 196.
determination of contested Sections, 199.
privilege of members against arrest, 200.
rules of procedure, 201.
power to punish for contempts, 201.
powers of, delegated and restricted, 202b
powers of, when exclusive, when concurrent, 208.
powers 01^ enumerated, 206.
taxation, 206.
money powers, 210i
INDBX. 827
CTb« flffOTM r«C«r to pagM*]
OONORESS^-Contlnaed,
borrowing money, 211.
coining money, 212.
legal tender, 213.
appropriations and expenditure of public money, 218.
t regulation of commerce, 214.
origin of the power, 214.
extent of the power, 21S.
what is included, 217.
wh^ exdusiye, when concurrent, 2191
navigation, 221.
Tessels, 228.
regulation of ports and barbon, 224
embargo, 224.
pilotage, 226.
quarantine, 226.
imports, 227.
immigration, 228.
railroads, 229.
bridges, 283.
telegraphs, 284.
trade-marks, 28(1
penal legislation, 288.
unlawful restraints, monopolies^ and trusts, 288.
commercial law, 244.
limitations on the power, 216.
state interference with commerce power, 245u
interstate commerce act, 258.
commerce with Indian tribes, 258.
naturalisation, 267.
bankruptcy, 280.
standard of weights and measures, 28L
punishment of counterfeiting, 282.
postal system, 283.
patents and copyrights, 288.
establishment of courts, 268.
definition and punishment of piracy, 288.
war powers, 289.
power to declare war, 289.
armies, 270.
goyemment of the forces, 272.
militia, 272.
letters of marque, 274.
government of ceded districts, 274.
acquisition of territory, 277.
disposition of public lands, 278.
government of the territories, 278b
admission of new states, 281«
implied poweis of, 284.
limitations on powen of, 287.
police power poesessed by, 391.
power to regulate federal elections, 860i
828 INDBX.
(TiM flgurw r«C«r to pagM*]
OONSCIBNGB,
freedom of, see Rellgioiis Libertj.
00NSCIBNTI0U8 SORUPLES,
respect to be paid to, 534.
OONSTITUTION,
defined* 1.
meaning of, in general public law» 2.
what is essential to, 2.
meaning of, in American law, 8.
distingnlBhed from statute, 8.
written and uitwrltten, 6.
not the source of rights, 7.
of the United States, 33-87.
not a compact or league, 88.
an organic, fundamental law, 84.
a grant of powers, 85.
the supreme law of the land, 86^
establishment and amendment of, 43-48.
federal, adoption ot 43.
amendment of, 45.
of states, establishment of, 48.
reconstruction, 48.
amendment of« 49-54.
Judiciary as final Interpreters of, 55.
power to adjudge statutes unconstitutional, 56.
construction and interpretation of, 75-81.
of state, must not impair obligation of contracts, 721.
OONSTITUTIONAI- CONVENTION,
powers and limitations of, 58.
debates of, as an aid in interpreting constitution, 79.
CONSTITUTIONAL GOVERNMENT,
meaning of the term, 3.
CONSTITUTIONAL LAW,
defined, 1.
meaning of ''unconstitutional," 4, 5.
American, sources of, 8.
CONSTITUTIONAL LIBERTY,
secured by written constitutions, 2, 8.
CONSTRUCTION,
of statute, will be such as to aroid unconstitutionality, d6L
of statute, by executive, respected by courts, 87.
of constitutions, 75-81.
intent, 78.
popular sense of words, 79.
uniformity, 77.
effect to be given to whole, 77.
common law, 78.
not to be retrospective, 78.
mandatory and directory provisions, 781
implications, 78.
INDBX. 629
tTb» flgurw r«C«r to p«cm.]
CX>N8TRUGrnON— OoQtliiiied,
grants of powers, 79.
preamble and titles, 79.
unjust or inoonvenient proyislons, TOi
contemporary and practical construction, 80L
schedule, 81.
words taken from other constitutions, 80^
extraneous facts, 81.
rule of stare decisis, 8L
execntiTO construction of law% 829.
of eoiinent domain statutes, to be strict, 47S.
ot statutes, not retrospectlye, 754.
OONSULAB COURTS,
of the United States, organisation and Jurisdiction of; 1481
OON8UL8,
appointed hj Presidoit, 137.
foreign, recognitl<m ot by President, 188.
cases affecting, federal Jurisdiction of, 10(1
OONTBBCPTS,
power of courts to punish f6r, cannot be abolished by statttte, 90L •
power to punish for, in congress, 201.
in state legldatures, 846.
in the courts, 687, 698.
CONTINENTAL CONGRIQSS,
history of, 40.
CONTRABAND PROPERTY,
seisure and destruction ot 678.
OONTRACTS,
laws impairing, see Obligation of ObntractSi
charters (tf corporations as, 73&
charter of municipal corporation, 606; 743.
freedom of contract, 686b
COPYRIGHTS.
authority of congress to grant, 266^
CORPORATIONS,
dtlxenship of, for purposes of federal Jurisdiction, 164
interstate citizenship of, 296.
federal, state taxation of, 449.
delegation of power of oninent domain to^ 472.
franchises ot, may be taken by right of eminent domain, 488.
foreign, discriminations against, 667.
dtisenship of, 636.
charters of, as contracti, 78&
CORRUPTION OF BLOOD,
as a consequence of crime, 718L
COUNSEL,
privilege of, in trial and argument, 663L
right of prisoner to assistance of, 694.
880 INDBZ.
(TIM flgurw ntw to p— mJ
ODUNTBBFBITING.
panlthment of » to te llxod tj congren, 26Z
OOUMTIBS,
MO Monicipftl Oorporations.
as final interpreters of the constitation, 06.
power of, to determine conetitationall^ of etatatea, OQw
mlea for determining ccMDatitntionailtjr, 00-75.
the court, 00.
full bench, 82.
nature of the litigation, 68
parties interested, 68.
necessity of decision, 65.
construction, 66.
executlTO construction, 67.
presumption of legality, 68.
reference to journals of legldature^ 60L
motiyes of legislature, 60.
policy of legislation, 70.
natural Justice^ 72.
partial tmconstitutionality, 78.
preamble of statutes, 74.
effect of decision, 75.
construction and interpretation of constitution by, 75-81*
powers of, not to be usurped by legislature, 87.
nor by executive, 91.
must not usurp legislatiTe or ezecutiTe powers, 02.
cannot enjoin enactment of statute, 08.
power to issue mandamus to executiye officers, 04.
will not decide political questions, 100.
advisory opinions by, 108.
appointment of inferior officers may be vested in, 127, 12&
federal, constitutional provisions for, 140l
. power of congress to establish, 140.
enumerated, 141.
territorial courts, 142.
consular courts, 148.
courts-martial, 148.
military commissions, 145.
jurisdiction of, see Jurisdiction. -
powers and procedure of, 180.
independent of state courts, 180.
what law administered by, 184.
following state decisions, 185.
practice, 180.
adjunct powers of, 101.
power to issue habeas corpus, 192.
removal of causes from 'state courts to, 190L
aystem of, in the states, 830.
constitutional courts, 882.
statutory courts, 884.
judges, 886.
IMDKX. (81
(TiM flgurw r«C«r to p«cm.]
OOURTS— Oontlnaed,
Jarlfldictlo]i» 887.
prooeM/ADd procedure, 880.
power of, to determine Talidity of police regoUtloiis, 4881
dntiee of court and Jury In drll caeei^ 821.
COURTS-MARTIAL,
establiahment, powers, and procedure of» 148.
QRBDIT, BILLS OF,
states n^gr not emit, 857.
ORIHOB,
against commerce, power of congress to ponidit 288b
against postal laws, 268.
police regulations for prevention of, 896.
not excused by religious views, 088.
constitutional protection to persons accused of; 870L
CRIMINAL PROSBCUTION8,
constitutional provisions applicable to» 8761
waiver of rights by defendant, 878.
presentment or indictment, 878.
trial by Jury, 682.
privilege against self-criminating evidence^ 686L
confixmting wltb witnesses, 600.
compelling attendance of witnesses, 608.
right to be present at trial, 608.
assistance ot counsel, 604.
right to be heard, 606.
speedy and public trial, 607.
former Jeopardy, 680.
bail, 704.
cruel and unusual punishments^ 706L
bills of attainder, 706.
ez post fiicto laws, 700.
suspension of habCAS corpus, 716.
definition of treason, 716.
corruption of blood and forfeiture, 71&
CRITICISMS,
of government, 684.
of public officUds, 664.
of candidates for office^ 66B.
of courts and Judges, 666.
of literary compositions, 667«
CRUEL PUNISHBCBNTS,
not to be inflicted, 708.
what are, 707.
GRUELTT TO ANIMALS,
validity of laws against, 808L
CURATIVB STATUTOB,
vaUdity of, 754.
curing administrative action, 767.
coring defective Judicial proceedings, 7881
832 INDBX.
CTIm isuTM r«C«r to p«cm.]
OURTBSY,
Tested right to^ 6OQ1.
D
DABfAGBS,
for private property taken for public use, 406.
DEBTS,
of mmiiclpal oorpocatioDat legialatlTe control of; 512.
taxes are not, 442.
DECLARATORY STATUTES,
Talidlty of, 88l
DEFENDANT,
in criminal caaes, rigiits of, see Orlmlnal Proeecatlona.
DELEGATION,
of legialatlTe power, unlawful, 37S.
of power of eminent domain, 472.
of legialatlTe power by congren, 287.
DENTISTS,
regulation and licenalng of, under police power, 90, 410l
DEPARTMENTS,
of goTcmment, mutual independence of, 82-102.
heads of, when liable to mandamus, 04.
constituting the cabinet, 117.
succeeding to presidency, 100.
may be authOTised to appoint inferior officers^ 127, 128L
of state gOTomment, executlTe, 814^
Judicial, 380.
legisUtlTe^ 841.
DEPORTATION OF ALIENS,
federal statutes as to, 303.
DIPLOMATIC RELATIONS,
President's control OTor, 188L
DIRECT TAXES,
definition and nature of, 200L
DIRECTORY PROVISIONS,
not usually found in constitutions^ 78L
DISFRANCHISEMENT,
meaning of, 872.
as a punishment for crime, 672.
discriminations as to offices, 678.
loss of right of suffrage, 674.
disqualiflcation to be a witness, 674b
Ineligibility to office, 676.
DISTRICT OF COLUMBIA,
position of, in the Union, 10.
neithtt a state nor a territory, 20.
dtisens of, cannot sue in federal courts, 163.
control of congress OTsr, 276.
repuUican goTemment does not obtain In, 818.
INDBZ. 883
(TiM flgurw r«C«r to PMM-I
DI8TURBIN0 BBLIOIOUS MBSTIMGS^
Talldltjr of laws against, 406.
DIVOBCB,
legislature may graDt, 880.
regulatloii, of, bj law, 667.
does not impair obligation of contracts, 786b
DOUBLD TAXATION,
constitQtional ralidity of, 464.
DOWER,
Tested rights in, 099.
DRUQOISTS,
regulation and licoislng of, under police power, 89, 416L
DUB PBOGBSS OF LAW,
constitutional guaranties of, 670.
meaning of the term, 671.
common law not exdusive standard of^ 671.
definition of, 672.
what persons protected, 678.
what property protected, 674.
confiscation and forfeiture acts, 676.
creation of liens, 676.
regulation of property, 677.
abatement of nuisances, 678.
in reyenue and tax proceedings, 680.
summary processes not necessarily unconstitutional, 680.
in eminent domain proceedings, 686.
in Judicial action, 687.
Jurisdiction, 600.
proceedings in personam and in rem, OOL
summary proceedings, 592.
punishment of contempts, 693.
erroneous Judgments, 694.
in administrative proceedings, 686.
in criminal cases, see Criminal Prosecutions.
DUPLIOATB TAXATION,
constitutional validity of, 464.
DWBLLINQ HOUSB;
inriolabiUty of, 607.
when an entry may be forced, 608.
unreasonable searches of; see Searches and Seizures.
DYING DECLARATIONS,
admissible as eyidence in criminal cases, 68O1
E
BASBMBNTS,
appropriation of, under power of eminent domain, 484,
BDUGATION,
furnishing of, is not Interstate commerce^ 217.
right to acquire, 568w
Bl.Const.L.(8d.Bd.)— 68
884 INDEX.
CTlw flcuTM r«C«r to pacta.]
BIOHT-HOUE LAW,
for laborers, yalidity of, 418.
SLBCnON,
on adoption of coxuititiitioiial amendment, 50.
contested, may be tried by legislature, 87.
of President and Vice-President, 106.
of members of congress, 197.
contested, how determined, 199.
of members of state legislature, 844.
regulation of, 649.
right to participate in, see Snltrage, Right ol
BLDOTIVB FRANCHISB,
see Suffrage, Right of.
ELBCTORAL OOLLBOB,
composition and duties of, 106^ 107.
BLBOTORS,
see Suffrage, Ri|^t of.
BLBOTRIO LIGHT AND POWBR OOMPANIBS^
exercise of power of eminent domain by, 480l
DLBCTROCUTION,
not a cruel or unusual punishment, 707.
BLBVBNTH AMBNDMENT,
adoption of, 46.
effect of, in abridging Jurisdictiont 109.
BBiBABOO ACT,
constitutionality of, 224.
BMINENT DOMAIN,
definition and nature of, 468.
constitutional prorisions relating to, 470.
is inalienable^ 469.
distinguished flrom taxation, 469.
distinguished from police power, 470.
by whom exercised, 471.
United States, 471.
municipal corporations, 472.
prirate corporations, 473.
legislative authority necessary to exercise of, 474
protection of private rights against, 475.
the purpose must be public, 476.
what property may be taken, 482.
estates less than a fee, 482.
property of state and United States, 482.
franchises, 488.
possession and enjoyment of estate, 484.
streams, 484.
materials, 485.
extent of appropriations, 486w
appropriation to new uses, 487.
INDBZ. 836
[The flgiirM refer to pacta.]
mi INIONT DOMAIN— Continued,
wliat constitates a taking, 488.
impairment of value of property, 490.
consequential and indirect injuries, 4M»
compeDsation, 486.
tribunal for determining, 496.
method of asseesing damages, 496.
measure of compensation, 497.
evidence, 601.
payment of damages, 602.
requirement of due process of law in, 686.
not surrendered by legislative contract, 786b
mfPLOYER8' LIABILITY ACT,
federal, validity and terms of, 230.
state, validity and terms of, 417.
EMPLOYMENT,
see Labor ; Professions ; Trades.
EPILEPTICS,
laws forbidding marriage of, 667.
EQUAL PROTECTION OF LAWS,
guarantied by fourteenth amendment, 644,
meaning of the phrase, 646.
what persons protected, 646^
civil-rights acts, 647.
local or special laws not prohibited, 649.
dass legislation, 660.
tax laws, 668.
competency of witnesses, 664.
right to labor, 666.
discrimination against colored dtlsens, 66(k
privilege of public schools, 665.
Jury service, 666.
discriminations by carriers, 666.
miscegenation, 667.
foreign corporations, 567.
EQUALITY,
as a requisite of taxation, 469.
EQUITY,
powers and procedure of federal courts In, 166.
Jury trial not claimable in, 626.
ESCHEAT,
due process of law in proceedings for, 676.
ESTABLISHMENT OF RELIGION,
forbidden by American constitutions, 682.
EVIDENCE,
no vested rights in rules of, 601
self-criminating, prisoner cannot be compelled to give, 686b
886 INDBZ.
[The flgiirM nf«r to p«cm.]
EX POST FiXTTO LAWS,
forbidden by the coii8titutioiis» 709.
what are, 709.
EXCLUSION OF ALIENS,
federal statutes as to, 896.
BXeLUSIVB PBIVILEOES,
constitutional provisions against grant of, 601, 561
EXBCUTIVB OOUNOTU
In states, functions of, 817n.
BXEOUTIVE DEPARTMENT,
responsibility of officers of, for official acts, 12-14.
construction of statutes by, respected by courts,. 07.
separation << from legislative and Judicial, 82.
nature of executive power, 82.
powers of, not to be usurped by legislature, 86.
nor by courts, 94.
must not usurp legislative or Judicial powers, 91.
mandamus and Injunction to, 94.
of federal government, 10&-139.
of state, powers and functions of, 814-^29.
EXEOUTIVB RE)GULATIONS,
force and authority of, ISO.
EXEMPTION FROM TAXATION,
as affected by requirement of equality and uniformity, 463L
as a contract, 744.
EXEMPTIONS,
not generally contracts, 782.
exemption from taxation, 744.
EXPATRIATION,
the right of, 088.
EXPORTS,
not to be taxed by states, 868u
EXPOSITORY STATUTES,
constitutionality of, 89.
EXTRA SESSION,
of congress, power of President to call, 132.
of state l^slature^ calling of, by governor, 82S.
EXTRADITION,
Interstate, 800.
F
FEDERAL CONSTITUTION,
see, also, Ck>nstltutlon.
nature and force of, 33-87.
the supreme law of the land, 80.
formation and ratification of, 48.
amendment of, 46.
guaranties republican government, 909.
limitations Imposed by, on state legislative power, 853.
INDBX. 887
[TiM flfurM r«f w to pttgM.]
FBUBBAL OONSTirunON— Contmued,
state police power, how limited by, 434.
limitatioiis on taxing power of states imposed by, 4S1.
privileges of citisensliip secured by, 640l
does not confer right of suffrage, 645.
FEDERAL COURTS,
see Gonrts.
FEDERAL ELECTIONS,
authority of congress to regulate, 660.
FEDERAL QOVERNMENT,
established in the United States, 8L
nature of, 8L
FEDERAL JURISDICTION,
see Jurisdiction.
FEDERAL QUESTIONS,
federal Jurisdiction of; 162.
FERRIES,
federal or state regulation of, 222.
FIFTEENTH AMENDMENT,
meaning and effect of, 647.
FIRECRACKERS,
laws prohibiting explosion of, 404.
FLAG,
national or state, laws forbidding use of In adTertlse&MQt% S9ii
FOOD,
adulteration of, federal statute against, 227, 896.
state laws prohibiting, 401.
FOREIGN COMMERCE,
see Commerce.
FOREIGN CORPORATIONS,
grant of right of eminent domain to, 478.
discriminations against, 667.
FORFEITURE,
of property, must be Judicially ascertained, 67BL
of political rights, 672.
of estates, as a consequence of crime, 71&
B'ORMER JEOPARDY,
as defense to accusation of crime, 600l
FOURTEENTH AMENDMENT,
see Citiicenshlp ; Due Process of Law; Equal Protection of Laws; Lll^
erty ; Suffrage, Right of.
FRANCHISE TAXES,
requirement of equality and uniformity a* to, 400.
FRANCHISES,
appropriation of, under power of eminent domain, 488L
as vested rights, 601.
dlsflranchisement, 672.
838 INDEX.
[Th* flcurM refer to pagee.]
FRANCHISBB-^CJontlniied,
exdusiye, grant of, 728, 790.
of corporation, as contracts, 788.
FRAUD.
police regnlationB designed to prevent, 425.
FRAUD ORDERS,
authority of postmaster-general to issue, 120n.
FREEDOM,
see, also, Liberty,
of conscience, 527.
personal, 535.
of speecli and the press, 650.
of contract, 566.
FUGITIVES FROM JUSTICE,
extradition of, dOO.
G
GAMBLING,
suppression of, under police power, 398.
GAME LAWS,
▼alidity of, as police regulations, 434.
GAS GOMPANIBS,
exercise of power of eminent domain by, 480l
Gfi>NERAL WARRANTS,
iUegaUty of, 611.
GOVERNMENT,
form of, in the United States, 81.
federal government, 81.
a representative republic, 32.
indestructible, 32.
separation of three departments of, 82-104.
cannot be sued, except by consent, 166.
republican, guarantied to each state, 309.
libels on, whether punishable, 664.
GOVERNOR,
power to veto amendment to state constitution, 51«
mandamus and injunction to, 94.
office and powers of, 314.
independence of executive, 318.
powers of state governor, 320.
appointments to office, 320.
commanding militia, 321.
pardons and reprieves, 322.
oonvenlng and adjourning legislature, 325.
approval or rejection of bills, 326.
executive construction of laws, 329.
duties of, under federal constituticHi, 829.
GRAND JURY,
see Indictment
INDBX. 889
[TlMrllgiirM r«f«r to pasts.]
GRANTS,
of powen, ooDBtmctioii of conititQtioiui as to, 79.
of leslslatiye power to congress, express, 202.
implied, 284.
<tf Jurisdiction, in state oonstitotions, 887.
of power of eminent domain to corporations, 478.
of monopolies and ezclusiye priylleges, 560.
protected as contracts, 780.
of exemption ftom taxation, 744.
H
HABEAS CORPUS,
power of federal courts to issue, 192.
use of, in extradition proceedings, 808.
suspension of, 715.
HAPPINESS,
pursuit of, rigbt to, guarantied, 644
HARBORS,
when subject to regulation of congress, 224b
HAWAII,
political status of, 20.
HBAI/TH,
police regulations in aid of, 899.
HIGH SBAS,
meaning of the term, 269.
HOUSB OF REPRBSBNTATIVES^
election of President by, 107.
power of, to prefer impeachments, 186L
composition of, 196.
qualification of members, 197.
apportionment of members, 197.
election of members, 197.
powers of, 198.
determining contested elections to, 199
privilege of members from arrest, 200.
rules of procedure, 201.
power to punish for contempts, 201.
HUSBAND AND WIFE,
see Divorce; Dower; Marriage.
I
ILLEGAL CONTRACTS,
have no oUigation to be impaired, 78QL
IMMIGRATION,
power of congress to regulate, 228.
restriction of, as police regulation, 896.
IBIMORAL CONTRACTS,
have no obligation to be Impaired, 786.
840 IMDBX.
[Tta« flgiirea r«f cr to PMW-I
IMHITKITIES.
of citlsensy aecared by f onrteentli ameDdment, 6IOl
IMPAIRMENT OF CONTRACTS,
see Obligation of Contracts.
IBiIPEACHMENT,
of federal officers, ISO.
for what crimes, 137.
what officers liable to, 187.
Judgment and sentence, 18&
IMPLIED POWERS,
construction of constitntions as to, 7&
of congress, doctrine of, 284.
of state legislature, S41.
of municipal corporations, 514.
IMPORTS,
subject to commercial power of congress, 227.
not taxable by states, 358.
IMPRESSMENT,
of seamen, 271, n.
IMPRISONMENT,
as a punishment for crime, 637.
release from, on habeas corpus, 715.
not a cruel or unusual punishment, 707.
for debt, 539.
INCEST,
laws forbidding incestuous marriages, 567*
INCOME TAX,
as a direct tax, 209.
taxation of income from non-taxable securities, 447, 451*
INDETERMINATE SENTENCE LAWS,
constitutional yalidity of, 87.
INDIANS.
commerce with, regulated by congress, 250L
sale of liquor to, forbidden, 394.
citizenship of, 636.
INDICTMENT,
by grand Jury, constitutional right to, 679.
INFAMOUS CRIMES,
prosecuted by presentment or indictment, 679.
what are, 681.
INFERIOR COURTS,
deciding upon constitutionality of statute, 60.
power of congress to establish, 140.
power of state legislature to establish, 384.
INFERIOR OFFICERS,
personal liability of, for official acts, 14.
federal, appointment of, 127.
who are, 128b
INDEX. 841
VthM flgvrM ntw to pagM.]
IMFORHATION,
high Crimea cannot be pioeecated bj, 079i
INHBRITANOD TAXBS,
are not direct taxe% 200.
equality and uniformity as to, 400.
INJUNCTION,
courts cannot enjoin passage of statute, 98L
to ezcibutlye officers, when lies, M.
cannot issue to President of United States, 111.
to restrain Tiolation of federal anti-trust act, 248.
to soTsmor of state, 819.
INNKBEPBRS,
to furnish equal accommodations for all, 548L
state regulation of business of, 560.
INQUISITORIAL TRIALS,
constitutional provisicMis against* 086-000.
IN8ANB PERSONS,
commitmoit and restraint of, 588L
laws forbidding marriage of, 607.
INSOLVENCY LAWS,
as affecting obligation of contracts, 74&
INSPECTION LAWS,
of the states, 868.
INSULAR POSSESSIONS,
of United States, political status and goyemment o( 20l
INSURANCE,
not included in "interstate commerce,** 217.
INTENT,
to be sought for in constitutional interpretation, 70L
INTERNATIONAL LAW,
offenses against, defined and punished by federal laws, 2Q0l
INTERPRETATION,
of constitutions, 7S-8L
see, also. Construction.
INTERSTATE OOBOIERGB,
see Commerce.
INTERSTATE COBfMERCE ACT,
provisions of, 263.
INTERSTATE COMMERCE COMMISSION*
powers and functions of, 264.
INTERSTATE LAW,
as determined by the constitution, 201*
principle of interstate comity, 201.
priTileges of dtiaens, 282.
what priyileges intended, 202.
what priyileges not included, 284.
842 INDEX.
(The flgnrea refer to pacM.]
INTBRSTATB LAW— Continued,
who are dtlsens, 294.
dlBcrlmlnmting taxes, 296.
pirt>lic acts and Judicial proceedings, 29G.
interstate extradition, 800.
INTOXIOATINO LIQUORS,
traffic In, regulated under police power, 402i.
sale of, to Indians, forbidden, 89i.
INVOLUNTARY SERVITUDE,
prohibited, 640.
what constitutes, 641.
IBBIOATION,
exercise of power of «nin^it domain for, 480.
J
JBOPARDT,
meaning of, 099.
prisoner not to be placed in, twice, 099.
JOURNALS OF LBQISLATURB^
as evidence of validity of laws, 69, 34&
of congress, 199.
JUDGES,
not privattiy liable for Judicial acts, 12.
cannot be required to perform nonjudicial duties^ 9flL
will not decide political questions, IOOl
advisory opinions by, 103.
federal, appointed by President, 127.
tenure of office, 141.
of state courts, independence of, 336.
duties of, as distinguished from those of Jury, 62L
JUDGMENTS,
of the courts, cannot be reversed by legislature, 88L
in cases of impeadiment, 138.
of a sister state, full fiiith and credit to, 296.
erroneous, as due process of law, 694
vested rights in, 606.
are not contracts, 736.
JUDICIAL ACTION,
no private liability for, 12.
requirement of due process of law in, 58T.
defects in, cured retrospective, 769.
JUDICIAL POWER,
nature of, 82.
of the United States, see Jurisdiction,
of the sUtes, 330-340.
JUDICIARY,
responsibility of, for Judicial acts, 12.
as interpreters of the constitution, 66.
INDBX. 843
[TlM flgnrM rtf «r to pagw.]
JnDIGIART-<>>ntinued,
power of, to adjadge statntes unconstitQtional, M.
separation of, from execntiye and legialatiye department^ 82L ^
Independence of, 84.
nature of Judicial power, 82l
powers of, not to t>e asurped by legialatore, 8).
nor by ezecatlye, 91.
state, powers and functions of, 89(^840.
determining validity of police regulations, 439.
JUNK DEAIJ3R8,
regulation of, under police power, 41L
JURISDICTION,
of federal courts, 14IK-195.
courts of the United States, 140.
power of congress to establish courts, 140L
federal courts enumerated, 14L
territorial courts, 142.
consular courts, 143.
courts-martial, 143.
military commissions, 145.
scope of federal judicial power, 148.
acts of congress regulating Jurisdiction. 148L
original and concurrent Jurisdiction, 148.
equity Jurisdiction, 150.
ancillary and equity Jurisdiction, 181.
cases inyolying federal questions, 1S2L
cases arising under treaties, 155.
cases affecting ambassadors, 158.
admiralty and maritime cases, 157.
cases affecting aliens, 182.
suits between citizens of different states^ 188^
land grants of different states, 165.
United States as a party, 166.
states as defendants, 168.
suits between states, 173.
states as plaintiffis, 174.
of United States supreme court, 175.
original, 175.
appellate, 176.
Independence of federal and state courts, 180.
power of federal courts to issue habeas corpus, 192L
of federal courts on remoyal of causes, 193.
of state courts, 337.
how far subject to legislative control, 338.
essential to "due process of law," 590.
want of, cannot be cured retrospectiyely, 769.
JURY.
as Judges of the law In libel cases, 668.
see, alsob Jury Trial.
JURY SBRVIGB,
exclusion of negroes from, unlawful, 556L
844 XJ7PBZ,
|Tk« tgurm r«f «r to paco-l
JUBY TRIAL,
may be denied to mmiietpAl oorporfttloiui» 507.
in civil cases, 61&
■eventh amendment to federal conatitotlon, 619L
constitatlonal proTtstona as to, 619.
proYiaiona In state ccmatitatioDS, 619.
meaning of, 620.
number and compoeition of Jury, 620i
province of court and jury, 621.
in what proceedings daimaUe, 62&
where not claimable, 624.
equity cases, 626.
admiralty cases, 627.
summary proceedings, 627.
peremptory nonsuits, 627.
compulsory references, 628.
re0tricti<His on the right, 628.
Jury trial allowed on appeal, 629.
waiver of the right, 629.
in criminal cases, 682.
waiver of, by defendant, 679.
JUST COMPENSATION,
for private property appropriated to public use^ 4801
JUSTICE,
right to obtain, freely, 617.
L
LABOR,
regulation of, under police power, 415.
alien contract labor law, 228.
right to, secured by constitutions, 555, 558L
labor as property, 574.
legal status and ri^^ts of labor unions, 419.
LACHES,
not imputable to a state, 25.
does not bar collection of taxes, 448.
LAUNDRIES,
regulation of, under police power, 411.
LAW OF THE LAND,
see Due Process of Law.
tiAWS,
see, also, Statutea
constitutions considered as, 8.
power of courts to determine constitutionality o( COL
constitutionality of, presumed, 68L
unconstitutional in part, 78.
of another state, credit accorded to, 286^
special and local, foibidden, 869.
enactment of, 878.
title and subject-matter of, 889l
Ik
INDBX. 845
|Tk« flgnrM r«ftr topagM.]
LAWS— Oonttnned,
equal protection of; goarmntied, 544.
tmiMUriiig oontracta, see OWgation of OontrmctiL
retroactiye, 762.
LEGIL TENDBR,
power of congress to make treasury notes a, 213.
limitation of state power as to, 80&
LEGISLATURE,
members of, not liable for ofQcial acts, 11, 12.
proceedings in, for adoption of consdtational amendment; 60
motiyes of, do not affect constltntionality of laws, 69.
separation of powers of, from ezecntive and Judicial, 82.
nature of legislatiye power, 82..
must not usurp executive or Judicial power, 86^ 87.
powers of, not to be usurped bj ezecutiTe, 91.
nor by courts, 92.
power of, to create courts, 884.
to rc^fulate Jurisdiction, 338.
to regulate practice, 339.
orsanization and government of, 341.
apportionment of members, 341.
terms of office, 842.
compensation of members, 342L
sessions, 842.
rules of procedure, 848.
officers, 343.
committees, 348.
election and qualification of members, 844.
expulsion of members, 846.
punishment of contempts, 346.
privilege of members from arrest, 848.
Journals, 84&
bribery and lobbying, 849.
extent of powers of, in the states, 861.
powers of, limited by federal constitution, 368;
treaties and compacts, 356w
letters of marque, 868.
bills of credit, 867.
coining money, 868.
legal tender, 86&
duties on imports and exports, 868L
duties of tonnage, 880.
keeping troops, 361
implied limitations in state constitutions, 862L
usurpation of powers, 362.
territorial restriction, 362:
legislature as trustee, 804.
appropriations and expenditure of public nx>ney, 86&
bounties and gifts, 866w
irrepealable laws, 868.
private, special, and local legislation forbidden, 368.
846 INDBZ.
rni« flfurM rtf «r to pacts.]
IiBQI8LATUBI>--Oontinaed,
delegation of leglelatiye power unlawful, 878^
except to nmniclpal oorporatlone, 874.
local option laws, 87&
conditional lefflalation, 877.
enactment of laws, 378.. '
title and subject-matter of statutes, 882L
cannot alienate police power, 889.
police power possessed by, 891
authorizing exercise of power of eminent domain, 474
power of, to create municipalities, 607.
control of municipal corporations by, 610.
members of, privileged in respect to speeches and debates^ 060l
contracts made by, 730.
limitations on power of, to contract, 786w
LBTTBK8,
private, inviolability of, 61L
LBTTBBS OF MARQUE,
power of congress to grant, 274
states may not grant, 868.
LIABILITT.
for official action, 11.
LIBBL,
law of, as a limitation on freedom of speech, 668.
on government, whether punishable, 664.
privileged communications, 659.
absolute privilege, 660.
conditional privilege, 663.
reports of judicial proceedings, 663.
Jury as Judges of the law in actions for, 668L
LIBBRTY,
defined and described, 625.
natural, civil, and political, 626.
limitations of, 626.
of conscience, see Religious Liberty,
personal, see Personal Liberty.
LIBERTT OF SPEECH AND PRESS,
constitutional provisions securing, 6601
meaning of terms, 660.
no peculiar privilege of newspapers, 661.
meaning of the guaranty, 662.
limitations on, 653.
criticisms of government, 664
seditious libels, 654.
press laws of Europe, 667.
in America, 667.
censorship of the press, 66&
privileged communications, 660i
absolute privilege, 660.
legislators^ 600.
INDBX. 847
[Hm flgnrM r«f «r to paftc]
UBBBTT OF 8PEBCH AND PRES8--Ck>ntiniMd,
public officers, 660.
putlclpaiiti in judicial proceedings, 661«
conditional priTilege, 668.
reports of Judicial proceedings, 668.
criticism of public officers, 664.
criticism of candidates for office, 665^
criticism of courts and Judges, 666.
criticism of literary compositions, 667.
Jury as Judges of tbe law, 668.
LIOBKSB8,
regulation of grant of, by admlnistratiTe commissions, 90L
are not contracts, 782.
license fees as interference with interstate commerce, 2481
to marry, validity of laws requiring, 067.
LIEN8,
statutes creating, as due process of law, 576w
LIET7TENANT GOVERNOR,
of state, office and duties of, 810w
as presiding officer of senate, 848»
LIMITATION OF ACTIONS,
see Statute of Limitations.
LIMITATIONS,
on powers of congress, 287.
on powers of state legislature, 868, M9L
on the police power, 484.
on power of taxation, 451-^464.
on power of eminent domain, 474-481.
on power of legislature to make contracts, 736.
LIQUORS,
poHce regulation of traffic in, 402.
sale of, to Indians, forbidden, 894.
LOBBYING,
contracts for, illegal, 349.
LOCAL ASSESSMENTS,
requirement of equality and uniformity as to, 46L
LOCUL LEGISLATION,
when Inyalid, 869.
LOCAL OPTION LAWS,
constitutionality of, 876.
LOCAL SELF-GOVERNMBNTt
the right of. 604.
LOTTERIES,
suppression of, under police power, 388, 896L
M
MAII^
denying use of, for fraudulent purposes, 120 d.
the postal system of the United States, 268.
848 INDBX.
|Tk« flgvrM r«f «r to paCMj
BCAIL8-<9ontina6d,
inviolability of privmte letters in the, 611.
receipts from carriage of, not texable bj statee^ 44&
MANDAMUS,
to ezecutlTe officers, when lies, 94.
will not lie to President of United States, lU.
to governor of state, 819.
MANDATORY PROVISIONS,
those of constitotions usually are, 78L
MARITIME OASBS,
federal jurisdiction of, 157.
what subjects covered, 158L
when exclusive, 161.
MARQUE, LETTERS OF,
power of congress to grant, 274.
states may not grant, 356.
MARRIAOm
laws against miscegenation, 557.
natural right of, 567.
may be regulated by state, 567.
not a contract, 736.
BCARTIAL LAW,
suspension of habeas corpus under, 715.
MATERIALS,
taking under power of eminent domain, 485.
MBBTINOS,
of congress, time of, 197.
MESSAGES,
of President to congress, 132.
of governor to state legislature, 32QL
MILITARY COMMISSIONS,
establishment and powers of, 145^
MILITARY POWERS,
of President of United States, 114.
MILITIA,
President's powers as commander in chief of, 114.
power of President to call out, 116.
authority of oongress over, 272.
governor as commander of, 821.
MILLS»
exercise of power of eminent domain for benefit of, 48L
MINING,
exorcise of power of eminent domain for purposes of, 481.
MISCEGENATION,
validity of laws against, 557.
INDRZ. 849
(Th« flsurtt rtf«r to 9MW-]
ICONBTT,
money powers of congress, 210.
borrowing money, 211.
power to coin money, 212.
legal tender, 213.
states may not coin, 858.
pQblic, control of l^slature over, 868.
damages in eminent domain proceedings most be paid in» 002.
MONOPOLIBS,
federal laws against, 286.
imlawfnl at common law, 428.
validity of laws against, 427.
rlgbt of goyemment to grant, 500.
grants of» by municipal ordinances, void, S18i
MORALITY,
public, police regulations in aid of, 397.
MORTGAGES,
are contracts not to be violated, 760.
MUNICIPAL CORPORATIONS,
delegation of legislative power to, 874.
police power vested in, 891.
power of eminent domain granted to, 472L
local self-government, 504.
nature of, 606.
ctaarters of, are not contracts, 500,
power to create, 607.
boundaries of, 506b
classification of, 500.
legislative control of, 510i
debts and revenue of, 5121
officers of. 513.
powers of, 514.
by-laws of, 517.
implied powers of, 514.
power to acquire and hold property, 51B.
business and conunerdal enterprises of, 510b
taxation by, when essential to observance of contraeti^ TM^
N
NATION,
defined, 1&
the United States as a, lOw
NATIONAL BANKS,
taxation of, by states, 448.
NATURAL GAS,
as a subject of interstate c^Mnmeree, 217.
NATURAL justice;
statutes contrary to, validity of, 72.
constitntlonal provisions repugnant U^ 79l
Bl.Ooh8T.L.9d.Bd.)— 04
8M INDEX.
[Tta« flsurM refer to pai«CiJ
NATURAL BIGHTS,
meaning of the term, 588.
NATURALIZATION,
authority of congress over, 257.
Is ezdosiye, 257.
h»fr effected, 258» 637.
NAYIOABLB WATERS,
what are, in English and American law, 1681
NAnOATION,
power of congress to regulate, 22L
NAVY,
President's power over, as commander In chief, 114
regulations for government of, II61.
NBUTRALITY LAWS,
established by congress, 260l
NBW STATES,
admission of, into the Union, 2SL
NflW TRIAL,
legislature cannot grant, 88.
NEW USES,
appropriation of property to, 487.
NEWSPAPERS,
amaiabllity of, to law of libel, 651.
see, also, Liberty of Speech and Press.
NOBILITT, TITLES OF,
not to be granted by United States, 289.
nor by states, 358.
NON-RESIDENTS,
taxation of property of, 453.
entitled to equal protection of laws, 547.
entitled to due process of law, 573.
NORTHWEST TERRITORY,
ordinance for goyemment of, 281.
NUIBANCES,
abatement of, 578.
0
OATH,
official, to support the constitution, meaning of, UlQL
OATH OF OFFICE,
of President and Vice-President, lia
OBLIGATION OF CONTRACTS,
laws impairing, not to be passed, 720.
constitutional proyisions, 720.
the law impairing, 721.
state constitutions, 721.
the ot)llgation of the contract, 722.
the impairment of the contract, 723^
INDBX. 851
[Tta« tgnrm rtter to pasM.]
OBUOATION OF OONTRACfr8-<k>ntinQed,
what contracts are protected, 725.
contracts between states^ 726w
statutes. 726w
contracts of a state with individuals, T27.
contracts of mnnldpal corporations, 728.
grants of franchises In public streets, 728.
pecuniary obligations of state and fflnnlcipaiiae% 720l
grants by a state, 730.
grants of exclusiye priyileges, 730.
licenses and exemptions, 782.
offices, 734.
illegal and Immoral contracts, 738.
judgments, 73S.
marriage^ 730.
limitations on power of legislature to contract, 786^
charters as contracts, 738.
charters of municipal corporations, 606, 748^
exemption ftom taxation as a contract, 744.
laws affecting remedies on contracts, 740.
insolvency laws, 748.
limitation laws, 748.
exemption laws, 749.
appraisal laws, 740.
redemption laws, 750.
municipal taxation, 750.
OCCUPATION,
personal liberty as to choice of, 568w
▼ested right to pursue^ 600.
OFnCERS,
of goTomment, responsibility of, for polftlcal action, 11-14
of executiye department, mandamus to, 04.
adminlstratlTe, delegation of legislatiye power to, 9&
appointment of, by President, 127.
removal of, 129.
impeachment of, 136.
of congress, how chosen, 19&
of state executive department, 314.
of state legislature, choice of, 343.
of municipal coiporations, 513.
due process of law in official and administrative action, 58S.
vested rights in public offices, 600.
public, criticism of, when privileged, 664.
Ineiigibility as a consequence of crime, 67S.
offices are not contracts^ 734
OFFICIAL LIABILITY,
for official action, 11-14.
of state governor, 319.
OLBOMABQARINB,
federal laws against, 894.
stats laws against, 40L
8B2. INDBX.
[Tli« flgnrM r«(«r to pM!mJ
OPPRESSION,
police regulatioiiB designed to preyent, 425.
OBDINANOB8,
of municipal oorpontlons, 517.
enactm«nt of, cannot be enjoined by conrta, 98.
P
PANAMA CANAIi ZONBl
political status and goyemment of, 20.
PAPERS,
private, protected against seardi and seizure, 000, Oil*
PARDONS,
defined, 12L
power of President to grant, 121.
power of goTemor to grant, 822.
granting of. an ezecutlye function, 822.
absolute and conditional, 328.
dellrery and acceptance essential to, 824.
must be pleaded, 324.
cannot be revoked, 824.
effect of, 824.
contract to procure, validity of, 825.
PARTIES TO ACTIONS.
ambassadors and public ministers, 166L
aliens, 102.
citizens of different states, 108.
United States, 100.
states, 10&
PATENTS,
authority of congress to grant, 200.
dealing in, regulated by state police laws, 425.
state taxation of, 448.
PAWNBROKERS.
regulation and licensing of, under police power, 411.
PEACE,
public, laws and ordinances for preservation of, 406L
PENALTIES,
vested rights in, 005i
PENSIONS,
constitutional validity of, 465.
PEONAGE,
agricultural labor law as establishing, 419, 542L
Mexican, Chinese, and Indian, 542.
PEOPLE,
distinguished from '^nation,** 15.
who are Included in the term, 80.
sovereignty of, 80.
ratiflcatlon of federal constitution by, 43^
CTh« flgm rtUr to pafMil
PBBSONAL UBERTT,
what It consists in, 685.
oonstitntlonal gnarantl«i of, 086L
limitatlonB v^on, 096.
arrest, 086.
imprisonment for crime, 537.
restraint of insane persons, 588L
yagabonds and paupers, 538.
parental control of children, 5891,
sureties on ball bonds, 538.
abolition of slavery, 540.
reqnlr^nent of due process of law, 570i
arrests on general warrants, 611«
PBBSONAL PROPBRTY,
police regulation of, 422.
taking under power of eminent domain, 488, 48S.
PBTITION,
right of, 66a
secured by constitution, 668w
meaning and extent of, 668-671.
statements in, are prlTileged, 67L
PHILIPPINES,
political etatus and goTemment of, 20.
PHT8ICIAN8,
regulation and licensing of, under police power, 99, 40^
PILOTAGE,
power of congress to regulate, 225.
PIRACY,
power of congress to define and punish, 268.
PLUMBERa
regulation and licensing of, under police power, 99, 410^
POLICE POWER,
definition and nature of, 387.
origin of, 388.
distinguished from eminent domain* 888.
is Inalienable, 889.
scope of, 889.
location of, 89L
in municipal ccwporations, 391.
as Tested In congresf , 891.
as Tested In state legislatures, 394.
objects to which it extends, 894.
public safety, 894.
public morals, 397.
public health, 399.
purity of food products, 40L
Intoxicating llquors» 402.
public peace, order, and comfort, 408.
regulation <rf railways, 406.
figolation of trades and professions, 406L
8M INDBX.
[Til* tgorm rtf tr to paswj
POUOB POWBBr— Continned,
r«caUtion vt chMTgea and prices, 41&
rccnUtion of labor, 415.
VDioniam, strikes, and boyootts, 419.
regulation of use and Improyement of property, 42SL
laws against fraud and oppression, 420,
monopolies, trusts, and strikes, 426.
regulation of roads and streets, 433.
game laws, 434.
limitations of, 434.
under federal constitution, 434.
state police power and regulation of commerce, 290L
unreasonable laws and unjust discriminationB, 487.
proTince of the courts, 439.
taxation laid under the, 407.
search warrants in aid of, 614.
cannot be surrendered by legidatiTO contract, 786L
POLITICAL QUESTIONS,
will not be decided by the courts, 100.
POLITICAL RIGHTS,
what are^ 524.
dtisenship, 631.
double citisenship in the United States, 633L
privileges of citizens of United State% 640i
right of suffrage, 644.
freedom of speech and of the press, 660.
right of assembly and petition, 668w
disfranchisement, 672.
POLL TAXES,
unconstitutional in some states, 453.
POLYGAMY,
right of government to prohibit, 396, 538.
POOLS,
illegality of, 236.
see, also, Monopoliea
PORTO RICO,
political status and government of, 20.
POSTAL SYSTEM,
authority and control of congress over, 263.
POWERS OF CONGRESS,
in relation to organisation and government, IflflL
are delegated, 202.
when exclusive, when concurrent, 208.
enumerated and discussed, 205.
implied, 281
limitations on, 287.
PBACTICBl
in the federal courts, 188i
in the state courts, 339.
In criminal cases, 676 et se^
[Tli« flgiirM rcf er to p«SM*l
PBBAMBm
Of statute, wh«n inyalldates It, 74.
of constitntloii, aa an aid In its construction. 79.
PREROGATIVES,
of state, 26.
immunity of state from suit, 26.
business and contractual relations of states, 27.
PRESENTMENT,
or indictment, constitutional right to, 67Bl
PRESIDENT OF THE UNITED 8TATB8»
office, powers, and duties of, 106-180.
executire power Tested in, 106.
election of, 103.
qualifications, 108.
vacancy In oflice of, 106L
compensation of, 109.
oath of office of; 110.
independence of, 111«
▼eto power of, 112.
military powers of, 114.
cabinet, 117.
pardoning power of, 121.
treaty-making power of, 122.
appointments to office by, 127.
messages to congress, 182.
power of, to convene and adjourn congress, 182L
control of, over diplomatic relations* 18&
power to execute the laws, 184.
proclamations by, 186u
impeachment of, 186.
PRESS,
freedom of, see Liberty of Speech and PressL
PRESS LAWS»
In Europe, 657.
PRESUMPTION,
in favor of constitutionality of statute^ 68L
PRICES,
regulation of, under pc^ice power, 412.
PRISONER,
constitutional rights of, see Criminal Proeecuttona.
PRIVATE PROPERTY,
appropriation of, to public use, see Eminent DomalAi
PRIVILEGED COMMUNICATIONS,
what are, 669.
statements In public petitions* 671.
PRIVILEGES,
of citizens of United SUtea, Wk
exclusive, grants of; 780.
8M INDEX.
[Hm tgarm refer te pec«s>]
PftlZB OABmS,
Jurisdiction of federal courts in, lei.
PROBATE PR0CBEDIN08,
not oofnixable in federal courts, 147.
PB0GLAMATI0N8,
by tlie President of the United SUtes, 139w
PB0FESSI0N8,
regulation of, under police laws, 406.
indiTidual right of choice as to, 558.
Tested right to practice, 600.
PBOPBRTY,
appropriation of, to public use, see Eminent Domain,
regulation of, must be by due process of law, 677.
power of municipal corporations to acquire and hold, 51S.
contraband, seizure and destruction of, 578,
PB08BOUTION8,
see Oriminal Prosecutions.
PROTEOTION,
of the laws, to be equal to all men, 644.
PUBLIO CX>MFORT,
police regulations for securing, 408.
PUBLIO OORPORATIONS,
see Municipal Oorporations.
PUBLIO DOMAIN,
not taxable by states, 448.
PUBLIO HEALTH,
police regulations in aid of, 899.
PUBLIO LANDS,
disposition of, by congress, 278.
not taxable by states, 448.
appropriation of, under power of eminent domain, 482.
PUBLIO MINISTERS,
to be appointed by President, 127.
foreign, to be received by President, 138.
may be dismissed by President, 138.
cases affecting, federal jurisdiction of, 156.
PUBLIO MORALS,
police regulations for preservation of, 397.
PUBLIO PEAOB,
laws and ordinances for preservation of, 408L
PUBLIO PURPOSES,
taxation must be for, 464-^468.
to justify exercise of eminent domain, 476L
PUBLIO SAFETY,
police regulations In aid o^ 891
[na tgaim ratar to pmmJ
PDBLIO BCHCKIL8,
reading the Blbla lo the, S29.
prlTllegM of, open to all, 56S.
rlgbt to aoinlra edncatlon In, 660i
PUBLIC-8E1RV1CB CXIRPORATIONB,
regulation and control of, br admlnlatratlTO eommlHl<»i^ 0f.
l«Sla1atlTe control of rates and charKea of, US.
exerclN of right of emlnant domain bj, 472, 478-480.
POBLIC TRIAL,
coDatttntional right to, eOT.
PUBLIC USE,
apprcqirUtlon of privata propertr to, lee Bminant DomaiB.
PUNISHMENTS,
cruel or nnnsoal, forbidden, 706.
PURE roOD AND DRUG LAW,
enai^tment and twma of, 227,
PURPOSES or TAXATION.
most b« pabnc, 454.
PURSUIT or HAPPINESS.
right to, guarantied, H4.
Q
QUALIFICATIONS,
of presidential dectora, lOB.
of Presldant, 106.
of memben of congreea, 106, 197.
of memben of itate leglalature, 844.
religions test as qualification for office, 088t
of Jarrmen, 620.
of voters, determined by the states, 646.
fixed bj state constitution, annot be abrogated, Mfli
QUARANTINE,
power of cODgreae to establish and regulate, 220, 8&L
as police rc^latliHi established b; congress, S9i,
bj the ststea, S99.
QUARTERING SOLDIERS,
constitutional proTlslons relating to, SlOk
RACE),
as alTactinc rlgbt of naturalisation, 2S9.
Buffrage not to be withheld on account of, 647.
RAILROADS.
engaged In Interstate commwce, regulation ot, by ooogr^
regnlation of, nnder police power, 40S.
delegstlon ot power of eminent domain to, 47S>
lagulation of rates and dtargea, US.
868 INDBZ.
[Th« tfurm r«f er to imcm.]
BAAL PROPERTY,
of United States, not taxable by states, 446.
aH>ropriation of, for public nse^ see Eminent Domain.
REBATING,
by railroads, federal statute against, 230.
REXX)NSTRUCTION ACTS,
adoption of new constitutions under, 48.
constitutionality of, 818.
REDEMPTION LAWS,
as affecting obligation of contracts, 760.
REGULATION OF OOBCMEROE,
see Gonunerce.
RELIGIOUS LIBERTY,
constitutional proylisions securing, 627.
Cairistlanity as part of the law of the land, 62&
encouragement of religion, 629.
public recognition of religion, 629.
Bible in the schools, 629.
Sunday laws, 680.
blasphemy a crime, 581.
establishment of religion forbidden, '682.
taxation In aid of religion, 682.
exemption of church property from taxation, 632,
legal status of religious sodetlee, 683.
religion no excuse for crime, 688.
respect for conscientious scruples, 684.
competency of witnesses as affected by religion, 684.
religious test as qualification for office^ 686.
RELIGIOUS SOGIETIBS,
taxation in aid of, 682.
legal status of, 638.
REDMEDIES,
no vested rights in, 002.
laws affecting, do not Tiolate obligation of contracts, 74flL
REMOVAL FROM OFFICE,
power of, in the President, 129.
*'tenure of office" act, 130.
on impeachment, 138.
by state goyemor, 821.
REMOVAL OF CAUSES,
from state courts to federal courts, 193-196.
statutes authorizing, 193.
parties, 194.
nature of suits removable, 194.
states cannot abridge right of, 194.
REPRESENTATION,
and taxation, are correlative, 400.
REPRESENTATIVE GOVERNMENT,
established In the United States and the states, 82.
[Tlu Bgartf ntn to p«c*>-]
KBPRIEVB8,
power of iioTOTDor to gnuit, 82!!.
Olatliigiils&ed from pardon, S22.
KBPUBLIGAN OOVERNMENT.
MtBbllehed In the United States, "SL
fuarantied to each state, SOB.
taxation and repreae&tatlon a nuizim of, 46&
REQUISITION,
tor inrrender of fogltlTe crlnUnal, BtXL
RB6IONATION,
of Prealdent of United States. lOa
BBSPONSIBILITT,
political and penonal, 11-14
B08TRAINT OP TRADE,
e«nblnaU(His effecting, under federal law, 2S6i
nndsr state statutes, 426.
strikes and bofcotts as, 420.
mnnldpal ordinances Electing, an Told, 619.
RBTROACrriVB LAWS,
Talldltr of, TS2.
retroactire effect avoided bj construction, 751
euratlTe statutes, T&4.
coring admlnlstratlTe action, 7B7.
caring defectlre Judicial proceedings, 7SB.
conBtmcthm of conatitntloni should not ba, T&
BEVEirUB,
of mnnldpal corporatlona, leglslatlTe control orer, BU
RBVENUB LAWS,
of United States and state police laws, 486n.
of states, see Taxation.
due process of law In enforcement at, Mi.
BiaHTS,
not created by the eoaatttntlonB, T.
bills of, defined, B.
right of rerolutlon, 10.
of the states, S3.
nature and classUcatltw ot, 022.
natural, 62S.
cItU, see QtU Rights.
poUUcal, see PoUtlcal Rights.
Tested, protection of, 090.
equal protection of the laws, 044.
right of aBs«nbl7 and petition, 6fl&
oC ptrsMis accused of crimen vn.
860 INDBX.
tTh« flcuTM r«f er to pacis.!
ROADSk
ncolation of, under police power, 483.
aULBS OF PROCESDUBB,
each hooee <rf congress may establish, 201.
power of state leglslatare to adopt, 343.
s
SAFETY,
public, police regulations in aid of, 394.
SANITARY LAWS,
▼aliditj of, as police regulations, 899.
search warrants in aid of, 816.
SCHOOLS,
see Public Schools.
SBARGU WARRANTS,
see Seardies and Seizures.
SBARCHBS AND SEIZURES,
unreasonable, prohibited by the constitutioiis, Ml
security of the dwelling, 897.
when an entry may be forced, 808.
right to search the person, 809.
compulsory production of papers, 809.
iuTiolability of the mails, 811.
general warrants, 811.
search warrants, 812.
requisites of, 812.
for what purposes used, 812.
in aid of police regulations, 814.
in aid of sanitary regulations, 8101
time of execution of, 816.
military orders, 818.
SECESSION,
no right of, in the United Sta:tes, 82.
SECRETARIES,
of federal ezecutiTe departments, see Cabinet
SECRETARY OF STATE,
of United States, 117.
of state, functions and duties, 81&
SEDITIOUS LIBELS,
EogUsh law of, 864.
SEIZURES,
of person or property, see Searches and Seisureib
SELF-CRIMINATION,
privilege against, 888.
SELF-GOVERNMENT,
local, the right of; 604.
J
INDEX.
tTh« llsurM refer to 9Af«i»]
SBNATB or THB UNITED 8TATBS,
election of Vice President by, 107.
participation in making of treaties, 122, 124.
confirmation of appointments by, 127.
trial of impeacbments by, 188.
composition of, 190.
election of members, 196, 197.
powers of, 196.
determining contested elections, 199.
privilege of members against arrest, 200.
power to punish for contempts, 201.
SBRYITUDB,
involuntary, prohibited, 540.
SB8SIONS,
of congress, extra, power of President to call, 182,
regular, 197.
of state legislature, special, called by governor, 82&
place and time of, 842.
SHERMAN ANTI-TRUST ACT,
provisions and applications of, 236w
SHIPS,
power of congress to regulate, 228.
of war, states may not keep, 861«
SLANDER,
see Libel.
SLAVERY,
slave trade made piracy by act of congress* 200.
abolition of, 54a
SMOKE LAWS,
validity of, 404.
SNOW,
ordinances requiring removal of, flrom sidewalks l^ dtlMii%
SOLDIERS,
quartering of, in private houses, 610.
SOVEREIGNTY,
defined, 10.
external and internal, 17.
of the United States, 1&
of the states, 22.
of the people, 80.
of the state, over seacoast, 801
SPECIAL LEGISLATION,
when invalid, 809.
SPEECH,
freedom of, see Liberty of Speech and Press.
SPEEDY TRIAL,
constitutional right to, 097.
MS INDBX.
STARS DECISIS,
doctrine of, as applied to oonatraction of coDStitatloiia, 8L
STATB RIGHTS,
doctrine of, 28.
no right of aeceeaion, 82.
STATB TRBASURBR,
powers and duties of, 316^
STATBS,
meaning of, in American constitutional law, 1&
restricted meaning of, 21.
sovereignty of, 22.
rights of, 23.
prerogatives of, 26.
business and contractual relations of, 27.
boundaries of; how fixed, 28.
of the Union, are republics, 81.
have no right to secede, 82.
federal constitution not a compact between, 83.
establishment of constitutions of, 48.
reconstruction, 4&
amendment of constitutions of, 4^-54.
as parties to actions, 168.
as defendants, 168.
suitB between states, 178.
as plaintifTs, 174.
powers of, when concurrent with those of congress, 200^
interference with commerce by, 245.
admission of new, 281.
interstate law under the constitution, 291.
guaranty of republican government to, 800.
executive power in, 314.
Judicial power in, 330.
legislative power in, 341.
police power of, 387.
powers of taxation possessed by, 441.
aM>roprlation of property of, under power of eminent domain, 481.
may not abridge privileges of citizens of United States, 640.
8TATUTB OF LIMITATIONS,
does not bar collection of taxes, 448.
vested rights accrued under, 603.
repeal of, as affecting contracts, 748.
STATUTES,
and constitutions distinguished, 8.
constitutional and unconstitutional, 4, 5.
power of courts to determine constitutionality of, 06b
presumed to be constitutional, 68.
unconstitutional In part, 73.
of another states credit accorded to, 296b
local and special forbidden, 369.
enactment of, 878.
cannot be enjoined by courts, 88.
im>BX.
{TiM txurM ratar tB pasa^J
STATUTE S — CbntlDned ,
tlUe and nibject-matter of, 882.
■ntborlzlDg exercise of power of emloent domitn, 474.
Impairing obllgntloii of contracts, B«e Obllgatloit (rf Cootracts.
when involve contracta, 726.
retroactive, 752.
STOCK QAMBLINO.
Bupprewion of, under police power, 896.
STREAMS.
aK>roprlatlon of, under power of eminent domain, 4S4.
shubetts,
r^nlatlon of, under police power, 433.
police control of parades and proceailona on, 896^ 408.
right of clUieaa to uae, 408.
prohlhltlng loud nolsea on. 401.
automobllea and blcrcles on, 483.
a[q>roprtation of private propertr for, 478.
to Preeldeut. 112.
to governor of state, 819.
SnOCESSION TAXES.
MA IMDBZ.
CTb* llsnrM r«f er to PMw.]
8UPRBMB COURT OF THB UNITED STATB£^-Contiiiiied,
Juriadlction of, 175.
origliua, 176.
appellate^ 170.
reviewing judgments of state appellate courts, 177.
TAXATION.
exercise of power of, by courts, ^. '
power of congress to lay taxes, 206i.
limitations on the power, 206.
purposes of federal taxation, 200.
direct and Indirect taxes, 209.
requirement of uniformity, 209.
by state, must not Interfere with commerce, 240.
nor discriminate against dtlsens of other states, 28G.
states may not tax Imports or exports, 8G8.
nor lay duties of tonnage, 360.
power of. In general, 441.
taxes defined, 441.
origin and nature of power, 441.
must not be arbitrary, 442.
distinguished ftom eminent domain, 443w
extent of legislative discretion, 444.
limitations Imposed by necessary Independence of federal and state gov-
ernments, 444.
state cannot tax agencies or institutions of United States, 445.
nor property of United States, 446.
nor federal bonds or notes, 447.
United States cannot tax state agencies or property, 450.
limitations Imposed by federal constitution, 451«
by state constitutions, 452.
purposes of taxation, 454.
must be public, 454.
what are public purposes, 454-458.
equality and uniformity In taxation, 459.
double taxation, 464.
taxation and representation, 466.
taxation under the police power, 407.
in aid of religion, validity ot, 582.
must not violate requirement of equal protection of laws, 558.
due process of law in, 580.
exemption from, when a contract, 744.
TBLBGRAPH8,
interstate^ authority of congress over, 284.
exercise of power of eminent domain for, 479.
TBLBPHONB,
transmission of messages by, as interstate commerce, 285.
TBRRITORIBS,
position of, in the Union, 19.
courts of, 142.
[Th« flffurM refer to pages.]
TERRITORIES-<>>ntlnned,
goyenunent of, by congress, 278^
Northwest Territory, ordinance for government of, 2SL
TICKET SCALPING,
▼alidlty of laws forbidding, 409.
TITLB OF STATUTE^
must be coextensive with subject-matter, 382.
TITLES OF NOBILITY.
not to be granted by United States, 289.
nor by states, 353.
TOLLS AND CHARGES,
regulation of, under police power, 412.
TONNAGE DUTIES,
states may not impose, 360.
TOWNS,
see Municipal Corporations.
TRADE,
combinations In restraint of, und6r federal law, 280L
under state statutes, 426.
boycotts and strikes, 420.
TRADE-MARKS,
authority of congress to legislate concerning, 236^ 287.
TRADES,
regulation of, under police power, 406.
liberty of choice as to, 558.
TRADES UNIONS,
rights, status, and responsibilities of, 419, 430.
TRADING STAMPS,
vaHdity of laws against use of, 412.
TRANSPORTATION,
of persons and property, see Commerce.
TREASON,
definition and punishment of, 716.
constructive, 717.
what constitutes, 717.
against a state, 718.
TREASURER OF STATE,
powers and duties of, 316.
TREASURY NOTES,
power of congress to make a legal tender, 218.
not taxable by states, 447.
TREATIES,
power of President and senate to make, 122.
are the supreme law of the land, 125.
take effect when, 124.
cases arising under, federal jurisdiction of, 165.
states may not make, 355.
state taxation contrary to, is unlawful, 452.
Bl. Con8T.L.(8d. Ed.)— 55
866 INDEX.
[The flfores refer to paces.]
TRIAL BY JUET.
see Jury TrlaL
TRIALS,
criminal, constitational guaranties In, see Criminal Prosecutions,
to be by jury, 682.
right of defendant to be present at, 6d3.
to be speedy and public, 607.
TROOPS,
stipendiary, states may not maintain, 861.
TRUSTS AND MONOPOLIES,
federal laws against, 236l
unlawful at common law, 426.
validity of laws against, 427.
TWELFTH AMENDMENT,
adoption of, 47.
TWICE IN JEOPARDY,
prisoner not to be placed, 689.
u
UNCONSTITUTIONALITY,
meaning of, 4, 6.
power of courts to determine, 06.
not presumed, 68w
partial, may not vitiate entire statute, 78.
UNIFORMITY,
as a requisite of taxation, 459.
UNION LABOR,
rights and resp(Mi8lbilltles of, 419, 43a
UNITED STATES,
national character of, 15. *
sovereignty of, 18.
is a federal republic, 81.
is Indissoluble, 32.
constitution of, 33-<37.
not a compact or league, 88.
an organic, fundamental law, 84.
a grant of powers, 35.
the supreme law of the land, 86.
origin of, 40.
under the Continental Congress, 40.
uhder the Articles of Confederation, 40.
formation and ratification of constitution of, 48.
amendment of constitution of, 45.
President of, powers and duties, 105-189.
courts of, see Courts,
cannot be sued except by consent, 166.
has no common law, 183.
guaranties to each state a republican government, 809.
police power vested in, 391.
INDBX.
rrha HgiirM raf*r to iwsw.]
UNITED STATES— Continued,
property of, not taxable b7 statco, 446.
may exerdae rlgbt of railnent domain, 471.
property of, takea under power of eminent domsln, 483
dtlsenahlp In the, 681.
dtlsens of, tbeir prtvlIegM and Ittmnnitles, UO:
UNITED STATES BONDS,
not taxable by StatM, 447.
UNITED STATES C0UET8,
•ee Courta.
UNUSUAL PUNISHMENTS,
not to be Inflicted, 706.
wbat are, T07.
UNWRITTEN CONSTITUTIONS,
natore and diaracterlatlca of, Q, &
USURY LAWS,
Talldlty «f> aa pcdlca rafolatlona, 42(L
V
VACCINATION,
compulsort, Talldl^ of laws prorldlng fOr, SM:
VESSELS,
engaged In commerce, rapilatloii of, t^ congreaa^ 33B.
tTb* llKUTM r*l*r to pacw.]
VILEAGBS.
see Munlcdpal CorporatloDi.
VOTING,
see Snffrase, Right ot.
w
WAGES.
of labor, police regnlatloiu u to rate and parment, 418>
comblnatlooa to raise, wben lawful, 41S, 430.
WAIVER,
of ]iu7 trial In dvll cases, 629.
In criminal cases, 8S2.
of rights In criminal cases, S78.
WAR.
President baa no power to declare, US,
congress maj declare, 2S8.
WAR POWERS,
of President, 114.
of congress, 269-274.
WARRAMTS,
arrests without, 036.
general, 611.
to search bouses, see Searches and SelaareB,
WATER COMPANIBS,
exercise of power of emlnoit domain by, 480.
WATER RATES,
are not "taxes," 442.
WATEROOURSES,
appropriation of, under power of eminent domain, 48C
WEIQUTS AND MEASI7RES,
standard of. may be died by congress, 261.
bureau of standards, 261.
inspection and teetlng of, as police regulation, 420.
WITNESSES,
competency of, as affected by religious views, Ci3^
dlaquallflcatlon of Indians and Chinese, 654.
disqualification for infatny, 674.
statements of, under examination, are prlytl^ed, 66L
prisoner's right to be confronted with. 690.
to compd attendance ot, 682.
WORDS.
used Id constitution, to be taken In popular seoae, 70.
taken from other constitutions, how construed, 80,
WRITTEN CONSTITUTIONS.
diatinguiebed from unwritten, S, S.
contents of, 6.
construction and interpretation of, 75-81.
(EI?e J^ornbook Series
Comprises elementary treatises on all the principal sub-
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This shows why these books are found so serviceable as
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♦The Hornbook Series now Includes treatises on Agency, Admi-
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Pleading, Evidence, Executors and Administrators, Federal Juris-
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Uniform price, $3.75 a volume, delivered.
Bound in American Law Buckram.
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ces.'^ea
23arrotP5 on Hegligence*
1899. 634 pages. $3.75 delivered.
By MORTON BARROWS, A. B., LL. B.
TABLE OF CONTENTS.
Chap.
1. Definition and Essential Elements.
2. Contributory Negligence.
3. Liability of Master to Servant.
4. Liability of Master to Third Persons.
5. Common Carriers of Passengers.
6. Carriers of Goods.
7. Occupation and Use of Land and Water.
8. Dangerous Instrumentalities.
9. Negligence of Attorneys, Physicians, and Public Ot&cers.
10. Death by Wrongful Act
11. Negligence of Municipal Corporations.
06559-1
Black on Construction anb
3nterprctatton of Catps*
1911. 624 pages. $3.75 delivered.
By H. CAMPBELL BLACK,
Author of Black's Law Dictionary, and Treatises on Constitution-
al Law, Judgments, etc.
Second Eklition.
TABLE OF CONTENTS.
Chap.
1. Nature and Office of Interpretation.
2. Construction of Constitutions.
3. General Principles of Statutory Construction.
4. Presumptions in Aid of Construction, and Consideration of Ef-
fects and Consequences of Act.
5. Literal and Grammatical Construction, Meaning of Language^
and Interpretation of Words and Phrases.
6. Intrinsic Aids in Statutory Construction.
7. Extrinsic Aids in Statutory Construction.
8. Construction of Statute as a Whole and with Reference to Ex-
isting Laws.
9. Interpretation with Beference to Common Law.
10. Retrospective Interpretation.
11. Construction of Provisos, Exceptions, and Saving Clauses.
12. Strict and Liberal Construction.
13. Mandatory and Directory Statutes and Provisions.
14. Amendatory and Amended Acts.
15. Construction of Codes and Revised Statutes.
16. Adopted and Re-enacted Statutes.
17. Declaratory Statutes.
18. The Rule of Stare Decisis as Applied to Statutory Construc-
tion.
With Key-Number Annotatioaa
C6559b-2
Black's Constttuttonal £atp.
1910. 868 pages. $3.75 deUvered.
By H. CAMPBELL BLACK,
Author of BIack*8 Law Dictionary, Treatises on Judgments,
Tax Titles, Bankruptcy, etc.
Third Edition.
TABLE OF CONTENTS.
Cbap.
1. Definitions and General Principlea
2. The United States and the States.
3. Establishment and Amendment of Constitutions.
4. Construction and Interpretation of ConstitutiOBS.
5. The Three Departments of Government
6. The Federal Executive.
7. Federal Jurisdiction.
8. The Powers of Congress.
9. Interstate T^w as Determined by the Constitution.
10. The Establishment of Republican Government
11. Executive Power In the States.
12. Judicial Powers in the States.
13. Legislative Power in the States.
14. The Police Power.
15. The Power of Taxation.
16. The Right of Eminent Domain.
17. Municipal Corporations.
18. Civil Rights, and Their Protection by the Constitution.
19. Political and Public Rights.
20. Constitutional Guaranties In Criminal Cases.
21. Laws Impairing the Obligation of Contracts.
22. Retroactive Laws.
With Key-Number Annotations
C6559b-3
Black on CC^e iavo of
3ubtctal Precebents
»
ottbe
Sctence of Case iavo
1912. 766 pages. $3.75 delivered
By H. CAMPBELL BLACK
TABLE OF CONTENTS
Chap.
1. Nature and Authority of Judicial Precedents.
2. Dicta.
3. Doctrine of Stare Decisis.
4. Constitutional and Statutory Construction.
5. Rules of Property.
6. Tbe Law of the Case.
7. Authority of Precedents as Between Various Courts of the
Same State.
8. Authority of Precedents as Between the Various Courts of the
United States.
9. Decisions of Federal Courts as Authorities in State Courts.
10. Decisions of Courts of Other States.
11. Decisions of Courts of Foreign Countries.
12. Federal Courts Following Decisions of State Courts; in
General.
13. Same; Matters of Local Law and Rules of Property.
14. Same; Validity and Construction of State Constitutions and
Statutes.
15. Same; Federal Questions.
16. Same; Commercial Law and General Jurisprudence.
17. Same; Equity and Admiralty.
18. Same; Procedure and Evidence.
19. Effect of Reversal or Overruling of Previous Decision.
C6559-3%
C^tlbs on Surctysljip anb
(Buaranty*
1007. 572 pages. |3.75 delivered.
By FRANK HALL CHILDS,
of the Chicago Bar.
TABLE OF CONTENTS.
Chap.
1. Definitions, Parties, Distinctions, and CSasslflcations.
2. Formation of the Contract.
3. The Statute of Frauds.
4. Construction of the Contract
5. Rights and Liabilities as Between the Creditor and the Sure-
ty.
6. Rights and Liabilities of the Surety and of the Principal as to
each other.
7. Rights and Liabilities of Co-Sureties as to each other.
8. Parties to Negotiable Instruments Occupying the Relation of
Sureties.
9. Official Bonds.
10. Judicial Bonds.
11. Bail Bonds and Recognizances.
CG559-4
Clark on Contracts*
1904. 683 pages. $3.75 delivered.
By WM. L. CLARK, Jr.
Second Edition: By FRANCIS B. TIFFANY.
TABLE OF CONTENTS.
Chap.
1. Contract in General.
2. Offer and Acceptance.
8. Classification of Contracts.
4. Reqnirement of Writing.
6. Consideration.
6. Capacity of Parties.
7. Reality of Consent
8. Legality of Object
9. Operation of Contract
10. Interpretation of Contract
11. Discharge of Contract
12. Agency.
13. Quasi Contract
C0559-5
Clark on (Corporations.
1907. 721 pages. $3.75 delivered.
By WM. L. CLARK, Jr.,
Author of ''Criminal Law/* "Criminal Procedure," and "Contracts."
Second Edition: By FRANCIS B. TIFFANY.
TABLE OF CONTENTS.
Cbap.
1. Of the Nature of a Corporation.
2. Creation and Citizenship of Corporations.
3. Effect of Irregular Incorporation.
4. Relation between Corporation and Its Promoters.
5. Powers and Liabilities of Corporations.
6. Powers and Liabilities of Corporations.
7. Powers and Liabilities of Corporatlona
8. The Corporation and the State.
9. Dissolution of Corporations.
10. Membership in Corporations.
11. Membership In Corporations.
12. Membership In Corporations.
13. Management of Corporations — Officers and Agents.
14. Rights and Remedies of Creditors.
15. Foreign Corporations.
Appendix.
C6559-6
Clark's Criminal taw.
1902. 517 pages. $3.75 delivered.
By WM. L. CLARK, Jr.,
Author of a '^Handbook of the Law of Contracts.*'
Second Edition: By FRANCIS B. TIFFANY.
TABLE OF CONTENTS.
Chap.
1. Definition of Crime.
2. Criminal Law.
8. Classification of Crimes.
4. The Mental Element In Crime.
5. Persons Capable of Committing Crime.
6. Parties Concerned.
7. The Overt Act
8. Offenses against the Person.
0. Offenses against the Person.
10. Offenses against the Habitation.
11. Offenses against Property.
12. Offenses against the Public Health, Morals, etc.
13. Offenses against Public Justice and Authority.
14. Offenses against the Public Peace.
15. Offenses against the Government
16. Offenses against the Law of Nations.
17. Jurisdiction.
18. Former Jeopardy.
C6550-7
1
I
(Clark's Criminal Procebure.
1895. 665 pages. $3.75 delivered.
By WM. L. CLARK, Jr.,
Author of a ''Handbook of Criminal Law,'* and a ''Handbook of
Ontracts."
TABLE OF CONTENTS.
Chap.
1. Jurisdiction.
2. Apprehension of Persons and Property.
3. Preliminary Examination, Bailp and Commitment
4. Mode of Accusation.
5. Pleading — The Accusation.
6. Pleading — The Accusation.
7. Pleading — The Accusation.
8. Pleading — The Accusation.
9. Pleading — The Accusation.
10. Pleading and Proof.
11. Motion to Quash.
12. Trial and Verdict
13. Proceedings after Verdict
14. Evidence.
15. Habeas Corpus.
CG559-8
Cooleg's JTIunidpal
Corporations^
1914. 709 pages. 13.75 deliyered.
By ROGER W. COOLEY, LL. M., Professor of Law,
University of North Dakota,
Author of ''Briefs on the Law of Insnrance,'* etc., etc.
TABLK OF OONTENT8.
Chap.
1. Corporations — ^Public and Prlyate.
2. Creation of Municipal Corporations.
3. LeglslatiTe Control.
4. Alteration and Dissolution.
5. The Charter.
6. Proceedings and Ordinances.
7. Officers, Agents, and Employ^.
8. Contracts.
9. Improvements.
10. Police Powers and Regulations.
11. Streets, Sewers, Parks, and Public Buildings.
12. Torts.
13. Debts, Funds, Expenses, and Administration.
14. Taxation.
15. Actions.
16. Quasi Corporations — Counties.
17. Same — Same.
18. Quasi Corporations Other Than Counties.
06669-8%
Costigan on JTIining taw.
lOOa 765 pages. $3.75 delivered.
By GEORGE P. COSTIGAN, Jr.
Dean of the College of Law of the University of Nebraska.
TABLE OF CONTENTS.
Chap.
1. The Origin and History of American Mining Law.
2. The Mining Law Status of the States, Territories, and Posses-
sions of the United States.
3. The Land Department and the Public Surveys.
4. The Relation Between Mineral Lands and the Public Land
Grants.
5. The Relation Between Mineral Lands and Homestead, Timber
and Desert Entries.
6. The Relation Between Mineral Lands and the Various Public
Land Reservations.
7. The Relation Between Mineral Lands and Townsites.
8. Definitions of Practical Mining Terms.
9. Definitions of Mining Law Terms.
10. The Discovery of Lode and Placer Claims.
11. Who May and Who May not Locate Mining Claims.
12. The Location of Lode Claims.
13. The Location of Mill Sites.
14. The Location of Tunnel Sites and of Blind Lodes Cut by Tun-
nels.
15. The Location of Placers and of Lodes within Placers.
16. The Annual Labor or Improvements Requirements.
17. The Abandonment, Forfeiture, and Relocation of Lode and
Placer Mining Claims.
18. Uncontested Application to Patent Mining Claims.
19. Adverse Proceedings and Protests Against Patent Applications.
20. Patents.
21. Subsurface Rights.
22. Coal Land and Timber and Stone Land Entries and Patents.
23. Oil and Gas Leases.
24. Other Mining Contracts and Leases.
25. Mining Partnerships and Tenancies in Common.
26. Conveyances and Liens.
27. Mining Remedies.
28. Water Rights and Drainage.
Appendices.
C6559-9Vj
1
•
\
Crosipell on Executors anb
dbmtntstrators.
1897. 606 pages. $3.75 delivered.
By SIMON GREENLEAF CROSWELL,
Author of *'Electriclty/' "Patent Cases," etc.
TABLE OF CONTENTS.
Chap.
Part 1.— DEFINITIONS AND DIVISION OP SUBJECTT.
1. Definitions and Division of subject.
Part 2.— APPOINTMENT AND QUALIFICATIONS.
2. Appointment in Court.
3. Place and Time of Appointment and Requisites Therefor.
4. Who may Claim Appointment as Executor.
6. Who may Claim the Right to Administer.
6. Disqualifications for the OflSce of Executor or Administrator.
7. Acceptance or Renunciation.
8. Proceedings for Appointment of Executors and Administra-
tors.
9. Special Kinds of Administrations.
10. Foreign and Interstate Administration.
11. Joint Executors and Administrators.
12. Administration Bonds.
Part 3.— POWERS AND DUTIES.
13. Inventory — Appraisement — Notice of Appointment.
14. Assets of the Estate.
15. Management of the Estate.
16. Sales and Conveyances of Personal or Real Assets.
17. Payment of Debts and Allowances — Insolvent Estates.
18. Payment of Legacies.
19. Distribution of Intestate Estates.
20. Administration Accounts.
Port 4.— TERMINATION OF OFFICE.
21. Revocation of Letters — Removal — ^Resignation.
Part 5.— REMEDIES.
22. Actions by Executors and Administrators.
23. Actions against Executors and Administrators.
24. Statute of Limitations— Set-off.
25. Evidence and Costs.
C6559-9
(£aton on i£qutty^
1901. 734 pages. $3.75 delivered.
By JAMES W. EATON,
Editor 3d Edition Collier on Bankruptcy, Ck)-Editor American
Bankruptcy Reports, E^aton and Greene's Negotiable
Instruments Law, etc.
TABLE OF CONTENTS.
Origin and History.
General Principles Governing the Exercise of E3quity Jurisdiction.
Maxims.
Penalties and Forfeitures.
Priorities and Notice.
Bona Fide Purchasers Without Notice.
Equitable Estoppel.
Election.
Satisfaction and Performance.
Conversion and Reconversion.
Accident.
Mistake.
Fraud.
Equitable Property.
Implied Trusts.
Powers, Duties, and Liabilities of Trustees.
Mortgages.
Equitable Liens.
Assignments.
Remedies Seeking Pecuniary Relief.
Specific Performance.
Injunction.
Partition, Dower, and Establishment of Boundaries.
Reformation, Cancellation, and Cloud on Title.
Ancillary Remedies.
OG550-10
(Barbner on Wills.
1903. 726 pages. $3.75 delivered.
By GEORGE E. GARDNER,
Professor in the Boston University Law School.
TABLE OF C0NTCNT8.
Chap.
1. History of Will*— Introduction.
2. Form of Wills.
8. Nnncupativet Holographic, Conditional Wills.
4. Agreements to Make Wills, and Wills Resulting from Agree>
ment.
5. Who may be a Testator.
6. Restraint upon Power of Testamentary Disposition — Who may
be Beneficiaries — What may be Disposed of by Will.
7. Mistake, Fraud, and Undue Influence.
8. Execution of Wills.
9. Revocation and Republication of Wills.
10. Conflict of Laws.
11. Probate of Wills.
12. Actions for the Construction of Wills.
13. Construction of Wills — Controlling Principles.
14. Construction — Description of Subject-Matter.
15. Construction — Description of Beneficiary.
16. Construction^Nature and Duration of Interests.
17. Construction — Vested and Contingent Interests — Remainders
— ^Executory Devises.
18. Construction — Conditions.
19. Construction — Testamentary Trusts and Powers.
20. Legacies — General — Specific — Demonstrative — Cumulative
— Lapsed and Void — Abatement — Ademption — Advance-
ments.
21. Legacies Charged upon Land or Other Property.
22. Payment of the Testator's Debts.
23. Election.
24. Rights of Beneficiaries Not Previously Discussed.
C6559-12
i}aU on Damages
1912. ^.75 delivered
By WM. B. HALE
Author of "Bailments and Carriers"
Second Edition: By ROGER W. COOLEY
1
TABLE OF CONTENTS
Chap.
1. Definitions and General Principles.
2. Nominal Damages.
3. Compensatory Damages.
4. Bonds, Liquidated Damages and Alternative Contracts.
5. Interest.
6. Value.
7. Exemplary Damages.
8. Pleading and Practice.
9. Breach of Contracts for Sale of Goods.
10. Damages in Actions against Carrier.
11. Damages in Actions against Telegraph Companies.
12. Damages for Death by Wrongful Act.
13. Wrongs Affecting Real Property.
14. Breach of Marriage Promise.
With Key-Number
C6559b-lt)
^ale on (Eorts.
1886. 6S6 pages. $3.76 delivered.
By WM. B. HALE.
Author of ''Bailments and Carriers," etc.
TABLE OF CONTENT8.
Ohap.
1. General Nature of Torts.
2. Variations in Normal Right to Sne.
8. Liability for Torts Committed by or with Others.
4. Discharge and Limitation of Liability for Torts.
5. Remedies for Torts — Damages.
8. Wrongs Affecting Freedom and Safety of Person.
7. Injuries in Family Relations.
8. Wrongs Affecting R^utation.
a Malicions Wrongs.
10. Wrongs to Possession and Property.
11. Noisance.
12. N^ligence.
1& Master and Serrant
oms^n
^opktns on Kcal Propertg.
1886. 689 pa«es. $3.75 delivered.
By EARL P. HOPKINS, A. B. LL. M.
TABLE OF C0NTENT8.
Chap.
1. What is Real Property.
2. Tenure and Seisin.
3. Estates as to Quantity— Fee Simple
4. Estates as to Quantity — Estates Tail.
6. Estates as te Quantity — Oonyentional Life Estates.
6. Estates as to Quantity — Legal Life Estates.
7. Estates as to Quantity — Less than Freehold.
8. Estates as to Quality on Condition— on Limitation.
9. Estates as to Quality — Mortgages.
10. Equitable Estates.
11. Estates as to Time of Enjoyment — B^ture Estates.
12. Estates as to Number of Owners — Joint Estates.
13. Incorporeal Hereditaments.
14. Legal Capacity to Hold and Conyey Realty.
15. Restraints on Alienation.
16. Title.
CC559-18
^ug^es on Ctbmiralty.
1901. 004 pages. $3.75 deliyered.
By ROBERT M. HUGHES, M. A.
TABLE OF CONTKNT8.
The Origin and History of the Admiralty, and Its Extent In the
United States.
Admiralty Jurisdiction as Goremed by the Snbject-Matter.
(General Arerage and Marine Insurance.
Bottomry and Respondentia ; and Liens for Supplies, Repairs, and
Other Necessaries.
Steyedores* Ontracts, Canal Tolls, and Towage Contracts.
Salvage.
Contracts of Affreightment and Charter Parties.
Water Carriage as Affected by the Barter Act of Fefbruary 13, 1808.
Admiralty Jurisdiction in Matters of Tort.
The Right of Action in Admiralty for Injuries Resulting Fatally.
Torts to the Property, and Herein of Collision.
The Steering and Sailing Rules.
Rules as to Narrow Channels, Special Circumstances, and General
Precautions.
Damages in Collision Cases.
Vessel Ownership Independent of the Limited Liability Act
Rights and Liabilities of Owners as Affected by the Limited Lla-
bUity Act
The Relative Priorities of Maritime Claims.
A Summary of Pleading and Practice.
APPENDIX.
1. The Mariner's Compass.
2. Statutes Regulating Navigation, Including:
(1) The International Rules.
(29 The Rules for Coast and Connecting Inland Waters.
(8) The Dividing Lines between the High Seas and Coast Wa*
ters.
(4) The Lake Rules.
(5) The Mississippi Valley Rules.
(6) The Act of March 8, 1800, as to Obstructing Channels.
& The Limited Liability Acts, Including:
(1). The Act of March 3, 1851, as Amended.
(2) The Act of June 26, 1884.
4. Section 941, Rev. St, as Amended, Regulating Bonding of Ves-
sels,
fi. Statutes Regulating Evidence in the Federal Courts.
6. Suits in Forma Pauperis.
7. The Admiralty Rules of Practice.
06660-19
^ug^es on ^(ib^val
3uri5bictton anb Procebure.
19ia 766 pages. 13.75 dellyered.
Second Edition*
By ROBERT M. HUGHES, of the Norfolk Bar,
Antlior of ''Hnghes on Admiralty," and Lecturer at ttie C^rge
Washington University Law SchooL
TABLE OF CONTENTS.
Chap.
1. Of the Source of Federal Jurisdiction and the Law Adminis-
tered by Federal Ck)urts.
2. The District Court— Its Criminal Jurisdiction and Practice.
3. Same — Continued.
4. Same — Miscellaneous Jurisdiction.
6. Same — Bankruptcy.
6. Same — Continued.
7. Same — Continued.
8. Same — Continued.
9. Same — Particular Classes of Jurisdiction.
10. Same — Jurisdiction to Issue Certain Extraordinary Writs.
11. Same — Original Jurisdiction Over Ordinary Controversies.
12. Same — Continued.
13. Same — Continued.
14. Same — ^Jurisdiction by RemovaL
16. Same — Continued.
16. Same — Continued.
17. Other Courts Vested with Original Jurisdiction.
18. Procedure in the Ordinary Federal Courts of Original Juris-
diction— Courts of Law.
19. Same — Courts of Equity.
20. Same — Continued.
21. Appellate Jurisdiction — ^The Circuit Court of Appeals.
22. Same— The Supreme Court.
23. Procedure on Error and Appeal.
The United States Supreme Court Rules, the Rules for Practice
for the Courts of Equity of the United States promulgated Nov.
4, 1912, the Judicial Code, and the portion of the Deficiency Ap-
propriation Bill of October 22, 1913, abolishing the Commerce
Court, are given in an Appendix.
With Key-Number Annotations
C6559a-20
3aggarb on (Eorts*
1^. 2yol8. 1307 pages. $7.60 delivered.
By EDWIN A. JAGGARD, A. M., LL. B^
ProfeSBor of the Law of Torts In Minnesota University Law BchooL
TABLK OF CONTENTS.
Part 1.— IN OBNERAU
Chap.
1. General Nature of Torts.
2. Variations in the Normal Rl^ht to Sue.
a Liability for Torts Committed by or with Others.
4. Discharge and Limitation of Liability for Torts.
5. Remedies.
Part 2.— SPEX3IPIC WRONGS.
6. Wrongs Affecting Safety and Freedom of Persons.
7. Injuries in Family Relations.
8. Wrongs Affecting Reputation.
9. Malicious Wrongs.
10. Wrongs to Possession and Property.
11. Nuisance.
12. Negligence.
13. Master and Servant
14. CoBunon Carriers.
CeW9-22
tltcKebey on (£vibcnc(^.
1907. 540 pages. $3.75 deliyered.
By JOHN JAY McKELVEY, A. M^ LL. B.,
Aathor of "Common-Law Pleading,** etc
Second Edition.
TABLE OF CONTENTS
Chap.
L Introductory.
2. Judicial Notice.
8. QnestioBs of Law and Questions of Fact
4. Burden of Proof.
5. Presumptions.
6. Admissions.
7. Confessions.
8. Matters Excluded as Unimportant, or as Misleading, though
Logically Relerant
9. Character.
10. Opinion Bridence.
11. Hearsay.
12. Witnesses.
13. Examination of Witnesses.
14. Writings.
15. Demurrers to Byidence.
08559-23
Horton on Bills anb Hotcs.
1900. 000 pages. $3.75 delivered.
By PROF. CHARLES P. NORTON.
Third Edition: By Francis B. TifiFany.
TABLE OF CONTENTS.
Chap.
1. Of Negotiability so far as it Relates to Bills and Notes.
2. Of Negotiable Bills and Notes, and their Formal and
tial Requisites.
8. Acceptance of Bills of Bzchange.
4. Indorsement
6. Of the Nature of the LiabUities of the Parties.
6. Transfer.
7. Defenses as against Purchaser for Value without Nottoe.
8. The Purchaser for Value without Notice.
9. Of Presentment and Notice of Dishonor.
10. Checlcs.
Appendix.
CMXS69-24
Slfipman on Common £aip
PIcabtng*
1896. 615 pages. |a75 deliyered.
By BENJAMIN J. SHIPMAN, LL. B.
Second Edition.
TABLK OF CONTENTS.
Chap.
1. Forms of Action.
2. Forms of Action.
3. The Parties to Actions.
4. The Proceedings in an Action.
5. The Declaration.
6. The Production of the Issue.
7. Materlalty in Pleading.
8. Singleness or Unity In Pleading.
9. Certainty In Pleading.
10. Consistency and Simplicity In Pleading.
11. Directness and Brevity in Pleading.
12. Miscellaneous Rules.
Appendix.
C6559-25
Sifipman on (Equity
Pleabtng*
1897. 6i4 pages. $3.75 delivered.
By BENJ. J. SHIPMAN» LL. B.,
Author of "Shipman*8 Common-Law Pleading."
TABLE OF CONTENTS.
Chap.
1. Equity Pleading in General.
2. Parties.
S. Proceedings in an Equitable ziJnit
4. Bills in Equity.
5. The Disclaimer.
6. Demurrer.
7. The Plea.
8. The Answer.
0. The Replication.
C655SK20
Smith's Elementary taw.
1898. 367 pages. $3.75 deliyered.
BY WALTER DENTON SMITH,
Instrnctor in the Law Department of the UnlTenity of Michigan.
Chap.
TABLE OF CONTENTS.
Part 1.— ELEMENTARY JURISPRUDENCE.
1. Nature of Law and the Various Systems.
2. Government and its Functions.
3. Government In the United States.
4. The Unwritten Law.
5. Equity.
6. The Written Law.
7. The Authorities and their Interpretation.
8. Persons and Personal Rights.
9. Property.
10. Classification of the Law.
Part 2.— THE SUBSTANTIVE LAW.
11. Constitutional and Administrative Law.
12. Criminal Law.
13. The Law of Domestic Relations.
14. Corporeal and Incorporeal Hereditaments.
15. Estates in Real Property.
16. Title to Real Property.
17. Personal Property.
18. Succession After Death.
19. Contracts.
20. Special Contracts.
21. Agency.
22. Commercial Associations.
23. Torts.
Part 3.— THE ADJECTIVE LAW.
24. Remedies.
25. Courts and their Jurisdiction.
26. Procedure.
27. Trials.
^
CG559-27
Ctffany on Clgency*
1903. eOO pages. |3.75 dellyered.
By FRANCIS B. TIFFANY,
Author of "Death by Wrongful Act," ''Law of Sales,** etc.
Chay.
TABLE OF CONTENTS.
Part l.~IN GENERAL.
1. Introductory — ^Definitions.
2. Creation of the Relation of Principal and Agent— Appointment.
8. Same (continued) — Ratification.
4. What Acts Can be Done by Agent — Illegality — Capacity of
Parties — Joint Principals and Agents.
5. Delegation by Agent — Subagents.
6w Termination of the Relation.
7. Construction of Authority.
Part 2.— RIGHTS AND LIABILITIES BETWEEN PRINCIPAL
AND THIRD PERSON.
a Liability of Principal to Third Person— Contract
. 9. Same (continued).
10. Admissions by Agent — Notice to Agent
11. Liability of Principal to Third Person— Torts and Crimes.
12. Uability of Third Person to Principal.
Part a— RIGHTS AND LIABILITIES BETWEEN AGENT AND
THIRD PERSON.
la Liability of Agent to Third Person (hacloding parties to con-
tracts).
14. Liability of Third Person to Agent
^
Part 4.— RIGHTS AND LLkBILITIBS BETWEEN PRINCIPAL
AND AGENT.
15. Duties of Agent t* Principal.
Id. Duties of Principal to Agent
Appeadix.
C6(»d-28
Ctffany on Banks anb
Banking
1912. 610 pages. $3.75 delivered.
By FRANCIS B. TIFFANY,
Author of ''Tiffany on Sales," ''Tiffajiy on Agency," etc.
TABLB OF OONTBNTS.
Chap.
1. Introductory.
2. Deposits.
8. Checks.
4. Payment of Checks.
5. Clearing House.
6. Collections.
7. Loans and Discounts.
8. Bank Notes.
9. Banking Corporations.
10. Representation of Bank by Ofllcers.
11. Insolvency.
IZ National Banks.
13. Savings Banks.
AiH;)endiz.
With Key-Number Annotations
C6559-28%
Ctffany on Persons anb
Domestic delations.
1909. 656 pages. $3.75 delivered.
By WALTER C. TIFFANY.
Second Edition : Edited by Roger W. Cooley.
TABLE OF CONTENTS.
Gluip.
Part 1.— HUSBAND AND WIFR
1. Marriage.
2. Persons of the Spouses as Affected by Ck>vertiire.
8. Rights in Property as affected by Coverture.
4. Ck)ntracts, Conveyances, etc., and Quasi-Contractual Obllga-
^ tlons.
5. Wife's Equitable and Statutory Separate Estate.
6. Antenuptial and Postnuptial Settlements.
7. Separation and Divorce.
Part 2.— PARENT AND CHILD.
R Legitimacy, Illegitimacy, and Adoption.
9. Duties and Liabilities of Parents.
la Rights of Parents and of Children.
Part 8.— GUARDIAN AND WARD.
11. Guardians Defined — Selection and Appointment.
12. Rights, Duties, and Liabilities of Guardians.
13. Termination of Guardianship — ^Enforcing Guardian's Liability.
Part 4.— INFANTS, PSStSONS NON COMPOTES MENTIS,
AND ALIENS.
14. Infants.
15. Persons Non Con^Hrtes Mentis and Aliens.
Part 5.— MASTER AND SERVANT.
16. Creation and Termination of Relation.
CCtffang on Sales.
1906. 634 pages. 13.75 deliyered.
By FRANCIS B. TIFFANY, A. B^ LL. B.
Author of 'Tiffany on Death by Wrongful Act"
Second Edition.
TABLE OP CONTENTS.
Cbmp.
1. Fonnation of the Contract.
2. Formation of the Contract — Under the Statute of Frauds.
8. Effect of the Contract in Passing the Property — Sale of Spe*
clflc Goods.
4. Effect of the Contract in Passing the Property — Sale of Goods
not Specific.
5. Fraud, and Retention of Possession.
6. Illegality.
7. Conditions and Warranties.
8. Performance.
9. Rights of Unpaid S^ler against the Goods.
10. Action for Breach of the Contract
Appendix: Sales Act— English Sale of Goods Act
C6569a-80
Vance on ^nsntancc.
1890. 683 pages. $3.76 deliyered.
By WILLIAM REYNOLDS VANCE*
Professor of Law in the George Washington Uniyerslty..
The principal object of this treatise is to giye a consistent state-
ment of logically developed principles that underlie all contracts of
insurance, with subsidiary chapters treating of the rules peculiar
to the several different kinds of insurance. Special attention has
been given to the construction of the standard fire policy.
This treatment will help to bring about, we believe, the much
desired clarification of this branch of the law.
The chapters cover, —
Historical and Introductory.
Nature and Requisites of Contract
Parties.
Insurable Interest
Making the Contract
The Consideration.
Consent of the Parties— Concealment
Consent of the Parties — ^Warranties.
Agents and their Powers.
Waiver and Estoppel.
The Standard Fire Policy.
Terms of the Life Policy.
Marine Insurance.
Accident Insurance.
Guaranty, Credit, and Liability Insurance
Appendix.
J
C6559-81
IPtlson on
3ntemattonaI taw.
1010. 623 pages. $3.75 delivered.
By GEORGE GRAFTON WILSON.
TABLE OF CONTENTS.
Qiap.
1. Persons In International Law.
2. Existence, Independence and BXinallty.
3. Property and Domain.
4. Jurisdiction.
5. Diplomatic Relations.
6. Consular and Other Relations.
7. Treaties and Other International Agreements.
8. Amicable Means of Settlement of International Differences.
9. Non-Amicable Measures of Redress Short of War.
10. Nature and Commencement
11. Area and General Effect of Belligerent Operations.
12. Rights and Obligations During War.
13. Persons During War.
14. Property on Land.
15. Property on Water.
16. Maritime Capture.
17. Rules of War.
18. Military Occupation and GoTemment
10. Prisoners, Disabled and Shipwreclced.
20. Non-Hostile Relations between Belligerents.
21. Termination of War.
22. Nature of Neutrality.
2a Visit and Search.
24. Contraband.
25. Blockade.
26. Continuous Voyage.
27. Unneutral Service.
2a Prize.
C6559-32
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