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

Ledox Library 




B an cva ft C o I Uu-timt . 
.Vui-dTiun-CrmlSfU'. 



TREATISE 



CONSTITUTIONAL LIMITATIONS 



WHICH REST UPON 



THE LEGISLATIVE POWER OF THE STATES 
OF THE AMERICAN UNION. 



BY 



THOMAS M. COOLEY, LL.D., 

ONE OF THE JUSTICES OF THE SUPREME COURT OF MICHIGAN, AND JAY PROFESSOR 
OF LAW IX THE UNIVERSITY OF MICHIGAN. 



THIRD EDITION, 

WITH CONSIDERABLE ADDITIONS, GIVING THE RESULTS OF THE SEQE^TS OASIiS. 



BOSTON: 
LITTLE, BROWN, AND COMPANY, 

1874. 



Che« 






Entered according to Act of Congress, in the 3-ear 1674, by 

LITTLE, BROWN, AND COMPANY, 

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




CAMBRIDGE: 
PRESS OF JOHN WILSON AND SON. 



) 



PREFACE TO THE SECOND EDITION. 



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



IV PREFACE. 

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

THOMAS M. COOLEY. 
University of Michigan, j 

Ann Aebor, July, 1871. ] 



PREFACE TO THE THIRD EDITION. 



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

THOMAS M. COOLEY. 
University of Michigan ) 

Ann Arbor, December, 1873. J 



TABLE OF CONTENTS. 



CHAPTER I. 

DEFINITIONS. 

Page 

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

"What sovereignty consists in 2 

Apportionment of sovereignty in America 2 

Definition of constitution and constitutional government 2, 3 

Of unconstitutional law 3, 4 

CHAPTER II. 

THE CONSTITUTION OP THE UNITED STATES. 

What the United States government the successor of; Colonial con- 
federacies 5 

The Continental Congress 5, 6 

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

supersession thereof by the Constitution 7, 8 

Adoption of the Constitution by North Carolina, Rhode Island, and 
the new States ; United States government one of enumerated 

powers 9 

General purpose of this government 10 

Powers conferred upon Congress 10, 11 

Executive and judicial power of the nation 11 

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

final decision of questions under, to rest with national judiciary 12 
Removal of causes from Suite courts ; decisions of State courts to 

be followed on points of State law 13 

Restrictions upon the States 15-17 

Guaranty of republican government 17 

Implied prohibitions on the States 18 

Reservation of powers to States and people ; statutes necessary to 

jurisdiction of national courts 19 



VI TABLE OF CONTENTS. 

CHAPTER III. 

THE FORMATION AND AMENDMENT OF STATE CONSTITUTIONS. 

Page 
State governments in existence when Constitution of United States 

adopted 21 

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

English and Colonial legislation 25 

Colonial charters and revolutionary constitutions 26 

Constitutions of new States 27 

Sovereignty of the people 28-30 

Proceedings in the formation and amendment of constitutions . . 30-34 
Restraints imposed thereon by Constitution of United States ... 33 
What generally to be looked for in State constitutions .... 31-36 
Rights are protected by, but do not come from them 36 

CHAPTER IV. 

CONSTRUCTION OF STATE CONSTITUTIONS. 

Interpretation and construction 38 

Who first to construe constitutions 38-43 

Final decision generally with the courts 43-46 

The doctrine of les ad judicata and stare decisis 47-54 

Construction to be uniform 54 

The intent to govern 55 

The whole instrument to be examined 57 

Effect to be given to the whole 58 

Words to be understood in their ordinary meaning 58-60 

Common law to be kept in view 60 

Words sometimes employed in different senses 62 

Operation of laws to be prospective 62 

Implied powers 63 

Consideration of the mischief to be remedied 65 

Proceedings of Constitutional Convention may be examined ... 66 

Force of contemporaneous and practical construction 67-71 

Unjust provisions not invalid 72 

Duty in case of doubt on constitutional questions 73 

Directory and mandatory provisions 74-83 

Constitutional provisions are imperative 79-83 

Danger of arbitrary rules of construction 83 



TABLE OF CONTENT8. Vll 



CHAPTER V. 

THE POWERS WHICH THE LEGISLATIVE DEPARTMENT MAY EXERCISE. 

Page 
Power of American legislatures compared to that of British Par- 
liament 85-87 

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

But not of executive or judicial power 87-90 

Definition of legislative and judicial authority 89-92 

Declaratory statutes 93-95 

Statute setting aside judgments, granting new trials, &c. ... 95 

Recitals in statutes do not bind individuals 96 

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

Statutes validating irregular judicial proceedings 107,108 

Legislative divorces 109-114 

Legislative encroachments upon executive power 114-116 

Legislative power not to be delegated ........ 116-125 

Conditional legislation 117-125 

Irrepealable laws not to be passed 125-127 

Territorial limitations upon State legislative authority .... 127 

Other limitations by express provisions 128 

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

CHAPTER VI. 

THE ENACTMENT OP LAWS. 

Importance of forms in parliamentary law 130 

The two houses of the legislature 131, 132 

Contested elections, rules of proceeding, punishing disorderly 

behavior 133 

Contempts; privileges of members 134 

Legislative committees ; journal of proceedings 135 

Corrupt contracts to influence legislation 136 

Counsel before legislature ; lobby agents 136 

The introduction and passage of bills 137 

Three readings of bills 139 

Yeas and nays 140 

Vote required for the passage of a bill 141 

Title of statutes .• 141-151 



Vlll TABLE OF CONTENTS. 

Page 

Amendatory statutes 151 

Signing of bills by presiding officers 152 

Approval of bills by the governor 153 

Other legislative powers of the governor 155 

When acts to take effect 155-158 



CHAPTER VII. 

THE CIRCUMSTANCES UNDER WHICH A LEGISLATIVE ACT MAY BE 
DECLARED UNCONSTITUTIONAL. 

Authority to declare statutes unconstitutional a delicate one . . 159 

Will not be done by bare quorum of court 161,162 

Nor unless a decision upon the point is necessary 163 

Nor on objection by a party not interested 163 

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

Nor because conflicting with fundamental principles 169 

Nor because opposed to spirit of the constitution 171 

Extent of legislative power 172 

Difference between State and national governments 173 

A statute in excess of legislative power void 174 

Statutes invalid as encroaching on executive or judicial authority . 174 

Or conflicting with the bill of rights 175, 176 

Legislative forms are limitations of power 177 

Statutes unconstitutional in part 177-181 

Constitutional objection may be waived 181 

Judicial doubts on constitutional questions 182-186 

Inquiry into legislative motives not permitted 186 

Consequences if a statute is void 188 



CHAPTER VIII. 

THE SEVERAL GRADES OF MUNICIPAL GOVERNMENT. 

The American system one of decentralization 189 

State constitutions framed in reference to it 190 

Local government may be delegated to citizens of the municipality 191 

Legislative control of municipalities 192 

Powers of public corporations 194 

Strict construction of charters 195 

Contracts ultra vires void 196 



TABLE OP CONTENTS. IX 

Page 

Corporations by prescription and implication 197 

Municipal by-laws 198-203 

Delegation of powers by municipality not admissible 204 

Irrepealable municipal legislation cannot be adopted 206 

Presumption of correct action 208 

Power to indemnify officers 209, 210 

Powers to be construed with reference to purposes of their 

creation 211 

Authority confined to corporate limits 213 

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

Negotiable paper of corporations 215, note 

Municipal military bounties 219-229, 234 

Legislative control of municipal taxation 230-235 

Legislative control of corporate property 235-240 

Towns and counties . 240 

Citizens of, held liable for corporate debts 241-247 

Not liable for neglect of official duty 247 

Different rules govern chartered corporations 247 

In what respect tbe charter a contract 248-254 

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



CHAPTER IX. 

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

Bill of Rights, importance of 256 

Addition of, by amendments to national Constitution 259 

Bills of attainder 259-264 

Ex post facto laws 264-273 

Laws impairing the obligation of contracts 273-294 

"What charters are contracts 279 

Contracting away powers of sovereignty 280-284 

Obligation of a contract, what it is 285 

Modification of remedies always admissible 287 

Appraisal laws 290 

Stay laws, when void 291, 292 

Validating imperfect contracts 293 

State insolvent laws 293, 294 

The thirteenth and fourteenth amendments 294 



TABLE OF CONTENTS. 



CHAPTER X. 

THE CONSTITUTIONAL PROTECTIONS TO PERSONAL LIBERTY. 

Page 

Villeinage in England 295 

In Scotland 298 

In America 299 

Unreasonable searches and seizures 299-308 

Every man's house his castle 299-304 

Search warrants 303-308 

Inviolability of papers and correspondence .... 30G, 307, and notes 

Quartering soldiers in private houses 308 

Criminal accusations, how made 309 

Bail to persons accused of crime 310 

Prisoner standing mute 311 

Trial to be speedy 311 

To be public 312 

Not to be inquisitorial 313 

Prisoner's statement and confessions 313-317 

Confronting prisoner with witnesses 318 

Prisoner to be present at trial 319 

Trial to be by jury 319 

Number of jurors ; right of challenge 319 

Jury to be of the vicinage 319 

Verdict to be unanimous and free 320 

Instructions of the judge, how limited 320 

Power of jury to judge of law 321-325 

Accused not to be twice put in jeopardy 325-328 

Excessive fines and cruel and unusual punishments .... 328-338 

Right to counsel 330-334 

Protection of professional confidence 334 

Duty of counsel 335 

Whether to address the jury on the law 336 

Punishment of misconduct in attorneys 337 

Writ of habeas corpus 338-348 

Legal restraints upon personal liberty 339-342 

Necessity of Habeas Corpus Act 342-345 

What courts issue the writ 345 

General purpose of writ, and practice upon 347, 348 

Right to discussion and petition 349 

Right to bear arms 350 



TABLE OP CONTENTS. xi 



CHAPTER XI. 

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

Pago 

Magna Charta, chap. 29 351 

Constitutional provisions insuring protection " by the law of the 

laud" 351, note 

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

Vested rights not to be disturbed 357 

What are vested rights 358-3(31 

Interests in expectancy are not 359 

Legislative modification of estates 3 GO 

Control of rights springing from marriage 3 GO, 361 

Legislative control of remedies 361 

Vested rights of action are protected 362 

Confiscation of rights and property 363 

Statutes of limitation 364-3.G7 

Alteration in the rules of evidence 367 

Retrospective laws 369-384 

Curing irregularities in legal proceedings 371-374, 382 

Validating imperfect contracts 374-381 

Pendency of suit does not prevent healing act 379 

What the healing statute must be confined to 381 

Statutory privilege not a vested right 383 

Consequential injuries from changes in the laws 384 

Betterment laws 386 

Unequal and partial legislation 389 

Local laws may vary in different localities 3y0 

Suspension of general laws 391 

Equality the aim of the law 393 

Strict construction of special grants 395 

Privileges and immunities of citizens 397 

Judicial proceedings void if jurisdiction wanting 397, 398 

What constitutes jurisdiction 398 

Consent cannot confer it 399 

Jurisdiction in divorce cases 400 

Necessity for process 402 

Process by publication 404 

Courts of general and special jurisdiction 406 

Effect of irregularities in judicial proceedings 408, 409 

Judicial power not to be delegated 410 

Judge not to sit in his own cause 410-413 



511 TABLE OF CONTENTS. 

CHAPTER XII. 

LIBERTY OF SPEECH AND OF THE PRESS. 

• Page' 
Protection of by the Constitution of the United States .... 414 

State constitutional provisions 414, note 

Not well protected nor defined at common law 417 

Censorship of the press ; publication of proceedings in Parliament 

not formerly suffered 418 

Censorship of the press in America 418 

Secret sessions of public bodies in United States 419 

What liberty of the press consists in 420-422 

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

Cases of privileged communications 425, 42G 

Libels on the government, whether punishable 426-430 

Sedition law 427 

Further cases of privilege ; criticism of officers or candidates for 

office 431-441 

Petitions and other publications in matters of public concern . . 434 

Statements in course of judicial proceedings 441-445 

by witnesses 441 

by complainant, &c 441, 442 

by counsel 442 

Privileges of legislators 445 

Publication of privileged communications through the press . . 448 

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

Privilege of publishers of news 451 

Publication of legislative proceedings 457 

The jury as judges of the law in libel cases 460 

Mr. Fox's Libel Act 462 

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

defendant 464 

What is not sufficient to show 465, 466, notes 



CHAPTER XIII. 

RELIGIOUS LIBERTY. 

Care taken by State constitutions to protect 467-470 

Distinguished from religious toleration 467 and note 



TABLE OF CONTENTS. xiH 

Page 

"What it precludes 469 

Does not preclude recognition of superintending Providence by 

public authorities 470 

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

fact that the prevailing religion is Christian 471 

The maxim that Christianity is part of the law of the laud . . 472-477 

Punishment of blasphemy 472 

And of other profanity 47 g 

Sunday laws, how justified 476 477 

Respect for religious scruples 477 478 

Religious belief as affecting the competency or credibility of 

witnesses 473 



CHAPTER XIV. 

THE POWER OP TAXATION. 

Unlimited nature of the power 479-485 

Exemption of national agencies from State taxation .... 480-484 
Exemption of State agencies from national taxation .... 483, 484 
Limitations on State taxation by national Constitution .... 485 

Power of States to tax subjects of commerce 486 

Discriminations in taxation between citizens of different States . 487 
Elements essential to valid taxation ; purposes must be public . . 487 

Legislature to judge of purposes 488-490 

Unlawful exactions 490-494 

Necessity of apportionment 495 

Taxation with reference to benefits in local improvements . . . 497 
Local assessments distinguished from general taxation .... 498 

Apportionment of the burden in local assessments 498-511 

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

Road taxes in labor 512 

Inequalities in taxation inevitable 513 

Legislature must select subjects of taxation 514 

Exemptions admissible 514 515 

Constitutional provisions forbidding exemptions 516 

Legislative authority requisite for every tax 517-520 

Excessive taxation 520 

The maxim de minimis lex non curat in tax proceedings .... 521 
What errors and defects render tax sales void 521, 522 



xiv TABLE OF CONTENTS. 

CHAPTER XV. 

THE EMINENT DOMAIN. 

Page 
Ordinary domain of' State distinguished from eminent domain . 523, 524 

Definition of eminent domain 524 

Not to be bargained away ; general rights vested in the States . 525 

How far possessed by the general government 525, 526 

What property subject to the right 526 

Legislative authority requisite to its exercise 527 

Strict compliance with conditions precedent necessary 528 

Statutes for exercise of, not to be extended by intendment ; pur- 
pose must be public 530 

What is a public purpose 531-536 

Whether milldams are 534 

How property to be taken 536-538 

Determining the necessity for 538 

How much may be taken 539-541 

What constitutes a taking 541-557 

Consequential injuries do not 541-544 

Appropriation of highway to plank road or railroad .... 545-557 

Whether the fee in the land can be taken 557-559 

Compensation to be made 559 

Time of making 560-564 

Tribunal for assessing 563 

Principle on which it is to be assessed 565-571 

Allowance of incidental injuries and benefits 566-571 

What the assessment covers 570 

Action where work improperly constructed 571 

CHAPTER XVI. 

THE POLICE POWER OP THE STATES. 

Definition of police power 572 

Pervading nature of 572-577 

Exercise of, in respect to charter contracts 574—581 

License or prohibition of sales of intoxicating drinks .... 581-584 
Payment of license fee to United States gives no right in oppo- 
sition to State law 584 

Harbor regulations by States 585 



TABLE OF CONTENTS. XV 

Page 
Distinction between proper police regulation and an interference 

with commerce 586 

State taxes upon commerce 586-588 

Sunday police regulations 588 

Regulation of highways by the States 588, 589 

Control of navigable waters 589 

"What are navigable 589-591 

Congressional regulations of 591 

Monopolies of, not to be granted by States 591, 592 

Power in the States to improve and bridge 592 

And to establish ferries and permit dams 593 

Regulation of speed of vessels ; destruction of buildings to pre- 
vent spread of fire 594 

Establishment of fire limits and wharf lines ; abatement of nui- 
sances, &c 595 

Other State regulations of police 595, 596 

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

CHAPTER XVII. 

THE EXPRESSION OF THE POPULAR WILL. 

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

legal forms ; elections the mode 598 

Who to participate in elections ; conditions of residence, presence 

at the polls, &c . 599 

Residence, domicile, and habitation defined 600 

Registration of voters 601 

Other regulations 602 

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

Mode of voting ; the ballot 604 

Importance of secrecy ; secrecy a personal privilege 605 

Ballot must be complete in itself 606 

Parol explanations by voter inadmissible 607 

Names on ballot should be full 608 

Abbreviations, initials, &c . 608, 609 

Erroneous additions do not affect 610 

Evidence of surrounding circumstances to explain ballot . . 611, 612 

Boxes for different votes ; errors in depositing 613 

Plurality to elect 614 

Freedom of elections, bribery, treating electors, calling out militia, 
service of process, betting on elections, contracts to influence 
them, &c 614, 615 



XVI TABLE OF CONTENTS. 

Page 
Electors not to be deprived of votes ; liability of officers for re- 
fusing votes 616 

Elector's oatb when conclusive ; conduct of election 617 

Effect of irregularities 617-621 

Effect if candidate is ineligible 620 

Canvass and return of votes ; canvassers act ministerially . . . 622 

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

may go behind 624 

"What proofs admissible 626 

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



TABLE OF CASES CITED. 



The figures given in the following table indicate the paging at the top of the page, 
and are sometimes the same on two or more consecutive pages. 



Abbott v. Lindenbower 367, 368, 382 

Abell v. Douglass 23 

Abendroth v. Greenwich 191 

Abercrombie v. Baxter 289 

Aberdeen Academy v. Aberdeen 239 

Abington v. North Bridgewater 600 

Ableman v. Booth 1, 346 

Adams v. Adams 348 

v. Beale 867 

v. Field 52 

v. Hacket 283, 383 

v. Hamel 596 

v. Palmer 113, 284 

v. People 127 

v. Rankin 423 

v. Rivers 557 

v. Somerville 503 

o. Vose 348 

v. Wiscasset Bank 240, 244, 246 

Ad Hine Steamer v. Trevor 18 

Ahl v. Glenn 223, 372 

Alabama, &c, Ins. Co. v. Boykin 378 

Alabama R. R. Co. v. Kidd 214 

Albany Street, Matter of 164, 181, 357, 

530, 538, 540, 561, 568 

Alcock v. Cook 358 

Alcorn v. Hamer 118 

Aldrich v. Cheshire R.R. Co. 542, 564, 

570 

v. Kinney 16, 404 

v. Printing Co. 436 

Aldridge v. Williams 66 

Alexander v. Alexander 422 

v. McKenzie 276 

v. Milwaukee 207,541,543 

v. Taylor 49 

v. Worthington 56, 65 

Allbyer v. State 62, 370 

AUeghanv City v. McClurkan 216 

Allen v. Aldrich 339 

v. Archer 371 



Allen v. Armstrong 367, 


368 


382" 


v. Drew 


507 


509 


v. Jay 212, 214, 


488 


494 


v. McKeen 




251 


v. Staples 




303 


v. Taunton 




212 


Allen County Commissioners v. 




Silvers 


179 


182 


Alley v. Edgcombe 




219 


Almy v. People 




486 


Alston v. Newcomer 




600 


Alter's Appeal 


379 


391 


Alton Woods, Case of 




358 


Alvord v. Collin 




521 


Amann v. Damm 




425 


Amberg v. Rogers 




367 


Amboy v. Sleeper 




200 


Ambrose v. State 




200 


American Print Works v. Lawrence 


594 


American River Water Co 


. v. 




Amsden 




590 


Ames v. Boland 




397 


v. Port Huron Log Driving 




and Booming Co. 


363, 


412 


Amey v. Alleghany City 




119 


Amis v. Smith 




13 


Amy v. Smith 




15 


Anable v. Patch 




360 


Anderson v. Dunn 




133 


v. Jackson 




50 


v. Kerns Draining Co. 


532 


v. Millikin 




394 


Andover v. Grafton 




215 


Andres v. Wells 




455 


Andrew v. Bible Society 


471, 


473 


Andrews, Ex parte 


588, 


596 


v. Insurance Co. 




198 


v. Russell 




375 


v. State 168, 


318, 


350 


Annapolis v. State 




144 


Annis v. People 




317 


Anonymous (2 Stew.) 




361 



XV111 



TABLE OF CASES CITED. 



Antisdel v. Chicago, &c, R.R. Co. 579 
Antoni v. Wright 163, 284 

Arbegust v. Louisville 500 

Arimond v. Green Bay Co. 526 

Armington v. Barnet 280, 479, 526, 537 



Armstrong v. Harshaw 


404 


v. Jackson 177, 


387 


v. State 319, 


323 


Arnold v. Arnold 


477 


v. Kelley 


392 


v. Mundy 


590 


Arrowsmith v. Burlingim 


353 


Arundel v. McCulloch 


590 


Ash v. Cummings 536, 560, 


562 


v. People 202, 286, 


596 


Ashbrook v. Commonwealth 


584 


Ashley v. Peterson 


304 


Aspiirwall v. Commissioners 


192 


Astley v. Younge 


442 


Astrom v. Hammond 


187 


Atchison v. Bartholow 


192 


Atkins v. Plimpton 


484 


v. Randolph 


232 


Atkinson v. Bemis 


198 


v. Dunlap 96, 365, 


370 


v. Marietta & Cincinnati 




R.R. Co. 


529 


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




livant 


529 


Attorney -General v. Barstow 622, 


623 


v. Brown 114, 


151, 


152, 


187 


v. Brunst 


52 


v. Cambridge 


193 


v. Detroit & 




Erin Plank 




Road Co. 56, 57 


v. Ely 606, 607, 


609, 


610, 618, 


622, 


623, 


625 


v. Exeter 


243 


v. Morris & Es- 




sex R.R. 




Co. 


545 


v. New York 


206 


v. Supervisors 




of St. Clair 


616 


v. Winnebago, 




&c., Plank 




Road Co. 


503 


Atwater v. Woodbridge 245 


280 


Atwood v. Welton 


477 


Auditor of State v. Atchison, &c, 




R.R. Co. 


89 


Augustin v. Eggleston 


619 


Auld v. Butcher 286 


366 


Aurora v. West 47 


119 


Austen v. Miller 


14 



Page 
Austin et al., In re 336 

Austin v. Murray 200, 202, 204 

Austine v. State 314 

Aycock v. Martin 291 

Ayres v. Methodist Church 471, 474 



B. 



Babcock v. Camp 47 

Bachelder v. Bachelder 401 

Backus v. Lebanon 279, 280, 410 

Bacon v. Arthur 593 

v. Callender 361, 381, 387 

v. Wavne County 334 

Bagnall v. London & N. W. R. Co. 564 

Bagg's Appeal 96, 365 

Bailey's Case 340 

Bailey v. Fiske 394 

v. Milner 14 

v. Miltenberger 526 

v. New York 239, 248,- 249, 278 

v. Philadelphia, &c, R.R. 

Co. 47, 576, 578, 593 

Baines v. Atchison 498 

Baker v. Braman 163, 180 

v. Cincinnati 499 

v. Gordon 348 

v. Johnson 558, 560 

v. Kelly 366 

v. Kerr 409 

v . Lewis 590 

v. Mattocks 23 

v. People 402 

v. Rand 47 

v. State 327, 328 

v. Windham 209 

Baldwin v. Bank of Newberry 294 

i?. Green 198 

v. Hale 293, 294 

v. New York 233 

v. North Branford 191, 219 
Ball v. Gilbert 614 

v. Winchester 246 

Ballou v. York County Commis- 
sioners 622 
Baltimore v. Baltimore, &c, R.R. 

Co. 394 

v. Cemetery Co. 514 

v. Eschbach 217 

v. Pendleton 253 

v. State 65, 68, 165, 171, 

182, 184, 186, 187, 391, 

572 

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

gruder 526 

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

bit 529 



TABLE OF CASES CITED. 



XIX 



Bancroft v. Dumas 581 

v. Lynnfield 211 

Bangs v. Snow 521 

Bank v. Supervisors 482 

Bank of Chenango v. Brown 119. 121, 

123 
Bank of Columbia v. Okely 355, 39-1 
Bank of Commerce v. New York 482 
Bank of the Dominion v. McVeigh 279 
Bank of Hamilton v. Dudley 13, 177, 

361 
Bank of Republic v. Hamilton 127 

Bank of Rome v. Village of Rome 119 
Bank of the State v. Bank of Cape 

Fear 279 

v. Cooper 392 

v. Dalton 16 

Bank of United States v. Daniel 13 

v. Halstead 68 

v. Norton 11 

Bank of Utica v. Mersereau 334 

Bank Tax Case 482 

Bankers' Case 354 

Bankhead v. Brown 530, 536, 538 

Banks, Ex parte 310 

Banks, The v. The Mayor 482 

Banning v. Taylor 352 

Baptist Church v. Wetherell 466, 467 

Barber v. Root 401, 402 

Barbour v. Barbour 361 

v. Camden 223, 379, 381 

Barclay v. Howell's Lessee 558 

Barker v. People 18, 328 

v. Pittsburgh 276 

Barnaby v. State 587 

Barnard v. Bartlett 307 

Barnes v. Atchison 498 

v. First Parish in Falmouth 69 
Barnet v. Barnet 377, 379 

Barnett v. People 328 

Barrett v. Crane 406 

Barring v. Commonwealth 595 

Barron v. Baltimore 18 

Barronet, Matter of 309, 310 

Barrow v. Page 527 

Barry, Ex parte 346, 348 

v. Lauck 602, 603, 604, 616 

v. Mercien 14, 346, 348 

Barthelemy v. People 465 

Bartholomew v. Harwinton 222, 223, 

381 
Bartlet v. Knight 404 

Bartlett v. Crozier 246 

v. Morris 57 

Barto v. Himrod 117, 120, 121, 123 
Barton ». Syracuse 208, 247, 253 

Bartruffv. Remey 370 

Bass v. Fontleroy 127 





Page 


Bates v. Delavan 


404 


v. Kimball 


46, 90, 96 


v. Releyea 


50 


Bathold v. Fox 


290 


Batman ». M ago wan 


623 


Batre v. State 


323, 325 


Battle v. Howard 


146 


Baugher v. Nelson 


266, 359 


Baughton v. Carter 


526 


Baum v. Clause 


422 


Baxter, Matter of 


263 



v. Winooski Turnpike 246 

Bayard v. Klinge 598 

Bay City v. State Treasurer 215, 219, 

232 

Bayerque v. Cohen 14 

Baylis v. Lawrence 463 

Beach v. Ranuey 423, 424 

v. Viles 13 

v. Walker 369, 372 

Beal v. Nason 364 

Beals v. Almador Co. 230 

Beard v. Beard 403, 405 

Beardsley v. Bridgeman 423 

v. Smith 241, 245, 246 

v. Tappan 425 

Beaty v. Knowler 193 

Beauchamp v. State 168 

Beauregard v. New Orleans 13 

Bedle v. Beard 197 

Beebe v. State 91, 95, 167, 168, 175, 

582 
Beecher v. Baldy 181 

Beeching's Case 344 

Beekman v. Saratoga, &c, R.R 

Co. 524, 530, 532, 537 

Beene v. State 336 

Beers v. Beers 410 

v . Botsford 245 

v. Haughton 286 

Beirne v. Brown 262, 264 

Bell ». Clapp 302, 304 

v. Morrison 13, 14, 364 

Belleville R.R. Co. v. Gregory 57, 

147 
Bellinger v. New York Central 

R.R. Co. 626, 542, 557, 570 

Bellows v. Persons 53 

Bellport, Parish of v. Tooker 466 

Benden v. Nashua 542 

Bender v. Crawford 292, 365 

Benedict v. Goit 545 

v. Vanderbilt 586 

Bennett v. Birmingham 195, 201 

v. Bull ' 168 

v. Deacon 425 

v. Fisher 370, 371 

v. New Orleans 208 



5X 



TABLE OF CASES CITED. 



Bennett v. State 

Bensley v . Mountain Lake, &c, 

Co. 
Benson v. Albany 

v. New York 



119, 171, 

166, 237, 

278, 576 



Benton v. Burgot 
Berlin v. Gorham 
Berry v. Carter 

v. Ramsilell 
Bibb County Loan Association v. 

Richards 
Bidwell v. Whittaker 
Bigelow v. Randolph 

v. W. Wisconsin R.R. Co. 
57, 185, 
Biggs, Ex parte 
Billings v. Detten 
Billmeyer v. Evans 
Bimelar v. Dawson 16, 404, 

Binghamton Bridge Case 279, 281, 
394, 395, 
Bird, Ex parte 587, 

v. Daggett 
v. Smith 

v. Wasco County 
Birdsall v. Carrick 
Bishop v. Marks 
Bishop's Case, The 
Bissell v. Briggs 

v. Jeffersonville 
v. Penrose 
Black v. Black 
v. State 
Blackford v. Peltier 
Blackwood v. Van Vleet 
Blain v. Bailey 

v. Ridgeley 
Blair v. Forehand 

v. Milwaukee, &c 
v. Ridgeley 
Blake v. Dubuque 
v. Rich 
v. St. Louis 
Blanchard v. Stearns 
Blandford School District V 
Blanding v. Burr 
Blatchley v. Moser 
Bleakley v. Bk. of Greencastle 372, 
Blin v. Campbell 

Bliss v. Commonwealth 168, 

v. Hosmer 
v. Kraus 
Block v. Jacksonville 
Blocker v. Burness 
Bloodgood v. Mohawk & Hudson 
R.R. Co. 160, 529, 530, 531, 



R.R. Co. 



247, 

Gibbs 
119, 



Page 

477 

530 

172 
239, 
580 
16 
118 
423 
366 

140 

56 

247 

568 
337 
382 
292 
406 
384, 
396 
596 
216 
590 
151 
155 
512 
349 
401 
216 
68 
402 
327 
366 
290 
151 
273 
595 
575 
262 
563 
558 
253 
616 
620 
230 
200 
375 
397 
350 
526 
191 
584 
477 

537 
560 



125 
247 

14 
379 



371 
582 

433 
23 
523 
307 
347 
379 
339 
360 



Page 
Bloodworth v. Gray 422 

Bloom v. Richards 23, 467, 471, 476, 

596 
Bloomer v. Stolley * 
Bloomington v. Bay 
Blossburg, &c, R.R. Co. v. Tioga 

R.R. Co. 
Board of Commissioners v. Bright 

v. Brearss 223 
Board of Excise v. Barrie 283, 3s3, 

581, 584 
v. Heister 584 

Board of Supervisors v. Heenan 
Boardman v. Beckwith 
Bode v. State 581, 

Bodwell v. Osgood 
Bogardus v. Trinity Church 
Boggs v. Merced, &c, Co. 
Boliannon v. Commonwealth 
Bollman & Swartout, Ex parte 
Bolton v. Johns 

v. Prentice 
Bombaugh.u. Bombaugh 
Bonaparte v. Camden & Amboy 

R.R. Co. 18, 214, 537 

Bond v. Appleton 52 

v. Kenosha 499, 521 

Bonner v. McPhail 422 

Bonsall v. Lebanon 588 

Boom v. Utica • 254 

Boon v. Bowers 50, 103 

Booneville v. Onnrod 562 

v. Trigg 151 

Booth v. Booth 372 

v. Woodbury 223, 226, 488, 558 

Borden v. Fitch 16, 401 

Bordeno v. Amperse 61 

Borough of Dunmore's Appeal 193, 

233, 279 
Bosley v. Mattingley 54 

Bossier v. Steele 146 

Boston v. Cummins 168, 267 

v. Shaw 588 

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

v. State 581 

Boston & Lowell R.R. Co. v. Sa- 
lem and Lowell R.R. Co. 281 
Boston Mill-dam v. Newman 537 
Boston & Roxbury Mill-dam Cor- 
poration v. Newman 536 
Boston Water Power Co. v. Bos- 
ton & Worcester R.R. Co. 281, 526 
Bostwick v. Perkins 397 
Bourland v. Hildreth 129, 599, 618 
Bourne v. The King 329 
Bow v. Allenstown 189, 197 
Bowdoinham v. Richmond 193, 289 
Bowen v. Byrne 484 



TABLE OF CASES CITED. 



XXI 



Bowen v. Hixon 






622 


Bowman v. Middleton 


165 


175 


358 


Boyce v. Sinclair 


371 


375 


379 


Boyd v. State 




283 


314 


Boyland v. New York 






249 


Boyle, Matter of 




129, 


157 


t*. Arledge 






14 


v. Zaeharie 






294 


Brackett v. Norcross 




361, 


389 


Braddee v. Brownfield 






168 


Bradford v. Brooks 






96 


v. Gary 






277 


v. Shine 




292, 


365 


v. Stevens 






581 


Bradley, Ex parte 






337 


v. Baxter 






117 


v. Buffalo, &c., 


R.R. 


Co. 


579, 
581 


v. Fisher 






337 


v. Heath 425 


,434, 


444, 


465 


v. McAtee 191 


, 280 


506, 


507 


v. New York & N. 


H. 




R.R. Co. 


391, 


531, 


537 


v. People 






482 


Bradshaw v. Heath 


16, 


401, 


401 


v. Omaha 


187, 


192, 


501 



v. Rogers 560 

Bradt v. Towsley 423, 424 

Bradwell v. Illinois 11 

Brady v. New York 216, 217 

v Northwestern Insurance 

Co. 591 

v. Richardson 397 

Bragg o. Meyer 14 

Brainard v. Colchester 280 

Brandon v. Gowing 331 

v. State 146 

Branham v. Lange 116, 134, 151 

Branson v. Philadelphia 578 

Braynard v. Marshall 12 

Breitenbach v. Bush 291 

Brent v. Chapman 365 

Brevoort v. Detroit 371 

Brewer v. New Gloucester 213 

Brewster v. Hough 126, 280 

v. Syracuse 144, 146, 379, 

381, 491 

Brick Presbyterian Church v. New 

York 126, 206, 283, 595 

Bridge v. Ford 406 

Bridge Company v. Hoboken Com- 
pany 279 
Bridgeport v. Housatonic R.R. 

Co. 119, 359, 379 

Bridges v. Shallcross 114 

Bridgewater v. Plymouth 384 

Brig Aurora v. United States 117 

78 



Page 

Briggs v. Hubbard 359, 365, 370 

v. Whipple 211 

Brigham v. Miller 70, 113 

Bright v. Boyd 387 

v. McCulloch 114, 495 

Brighton v. Wilkinson 192, 193 

Brimmer v. Boston 283 

Brinkmeyer v. Evansville 

Brinton v. Seevers 

Briscoe v. Bank of Kentucky 



217 

378 
9, 14, 

162 
193, 237 
361, 381 

407 



Bristol v. New Chester 

v. Supervisors, &c 
Britain v. Kinnard 
British Plate Manufacturing Co. v. 

Meredith 542 

Britton v. Ferry 68 

Broadbent v. State 394 

Broadfoot's Case 299 

Broadway Baptist Church v. Mc- 
Afee 514 
Brock v. Milligan 477 
Brockway v. Kinney 47 
Brodhead v. Milwaukee 223, 489 
Bromley v. People 127 
Bronson v. Kinzie 286, 287, 288, 289 
v. Newberry 286, 287 
v. Wallace 14 
Brook v. Montague 443 
Brooker v. Coffin 423 
Brooklyn Central R.R. Co. v. 
Brooklyn City R.R. Co. 198, 550, 

552 
Brooklyn & Newtown R.R. Co. v. 

Coney Island R.R. Co. 552 

Brooklyn Park Commissioners v. 

Armstrong 533, 558 

Brooks v. Hyde 129 

v. Mobile School Commis- 

missioners 57 

Brouse v. Cayuga, &c, R.R. Co. 512 

Brower v. O'Brien 622 

Brown v. Beatty 524, 564 

v. Buzan 181 

v. Cayuga, &c, R.R. Co. 52C), 

564 

v. Chadbourne 589, 590 

v. Commonwealth 593 

v. Duplessis 554 

v. Fifield 60 

v. Foster 406 

v. Grover 599' 

v. Hummel 279 

v. Maryland 486, 581, 586 

v. Providence, W. & B. 

R.R. Co. 570 

v. Scofield 589 

v. Smith 500 



XXII 



TABLE OF CASES CITED. 



Brown v. State 318, 319, 

v. Storm 
v. Wilcox 
v. Worcester 
Browne v. Schofield 
Browning v. Springfield 247, 

Bruffett v. Great Western R.R. Co. 
Brumagim v. Tillinghast 
Bruning v. N. O. Canal & Bank- 
ing Co. 
Bruns v. Crawford 
Brush v. Keeler 
Bryan, Ex parte 
v. Cattcll 
v. Walker 
Bryson v. Bryson 113, 

v. Campbell 
v. Philadelphia 
Buckingham v. Davis 

v. Smith 527, 

Budd v. State 

Buell v. Ball 208, 

Buffalo v. Holloway 
v. Webster 
Buffalo, &c, R.R. Co. v. Burket 
Buffalo Bayou, &c, R.R. Co. v. 

Ferris 
Buffalo & N. Y. R.R. Co. v. Brain- 

erd 
Buffalo & Niagara R.R. Co. v. 

Buffalo 
Buffington v. Day 
Buford v. Wible 

Bulkley v. New York & N. H. R. 
R. Co. 579, 580, 

Bull v. Conroe 383, 

v. Read 117, 118, 123, 

Bullock v. Curry 212, 

Bumgardner v. Circuit Court 
Bumpas v. Taggart 
Bunn v. Gorgas 
v. Ricker 
Buonaparte v. Camden & Amboy 



R.R. Co. 18, 214, 

Burch v. Newberry 
Burdeno v. Amporse 
Burdett v. Abbott 
Burgess v. Clark 

v. Pue 68, 119, 

Burgett v. Burgett 
Buriihardt v. Turner 
Burke v. Gaines 

v. Supervisors of Monroe 

Burkbolter v. McConnellsville 
Burley v. State 
Burlingame v. Burlingame 
Burlington v. Kellar 198 



399 
387 
62 
561 
589 
248 
279 
486 

530 
292 
614 
318 
276 
362 
114 
113 
208 
412 
530 
392 
501 
253 
596 
410 

560 

531 

578 
483 
423 

581 
391 
168 
215 
286 
484 
291 
615 

537 
96 
61 

133 

536 
190 
141 
360 
12 
620, 
622 
191 
318 
442 
518 



Co. 
498, 
200, 201, 



133, 



Burlington v. Putnam Ins 
Burnet v. Sacramento 
Burnett, Ex parte 
Burnham v. Boston 
v. Chelsea 
v. Morrissey 
v. Stevens 
Burns v. Clarion County 193, 

Burrel v. Associated Reform 

Church 
Burrill v. West 
Burson v. Huntington 
Burt v. Merchants Ins. Co. 

v. Williams 
Burton v. Burton 
Bush v. Seabury 
v. Shipman 
Bushell's Case 
Bushnell v. Beloit 
Bushnell's Case 
Butler v. Dunham 

v. Farnsworth 

v. Palmer 

v. Pennsylvania 

v. Porter 

v. Putney 

v. Toledo 
Butterfield v. Buffam 
Buttrick v. Lowell 
Buys v. Gillespie 
Byler v. Asher 
Byers v. Commonwealth 
Byrne v. Missouri 



96, 



277, 

119, 

119, 

286, 291, 



Page 
202 
5()7 
202 
254 
223 
134 
348 
232 

466 
49 
484 
526 
291 
422 
596 
279 
320 
219 
348 
219 
15 
381 
276 
522 
223 
370 
422 
253 
423 
601 
410 
14 



Cabell v. Cabell 

Calaveras Co. v. Brockway 

Calcote v. Stanton 

Calder v. Bull 9, 89, 

v. Kurby 
Caldwell v. Gale 

v. Justices of Burke 
Calhoun v. McLendon 
California Telegraph Co. v. 

Telegraph Co. 
Calking v. Baldwin 
Calkins v. Sumner 
Call v. Chadbourne 

v. Hagger 289, 

Callendar's Case 
Callender v. Marsh 
Callison v. Hedrick 
Calvin v. Reed 
Cambridge v. Lexington 
Camden & Amboy R. R. C 

Briggs 



113 

623 

12 

169, 264 

283 

51 

119 

94 

Alta 

281 

560, 561 

441 

119 

364, 366 

336, 462 

206, 542 

560, 561 

402 

193 

o. v. 

577, 579 



TABLE OP CASES CITED. 



XX1H 



Campau v. Detroit 179, 186 

Campbell v. Evans 364, 403 

v. Morris 15, 396, 397, 487 

v. Quinlin 52 

v. Spottiswoode 463 

v. State 328 

v. Union Bank 106, 168, 177 

Canal Co. v. Railroad Co. 106 

Canal Trustees v. Chicago 498 

Cancemi v. People 319, 399 

Cannon v. Brame 47 

v. Hemphill 146 

Canton v. Nist 198 

Cantwell v. Owens 56 

Capen v. Foster 601, 602, 616 

Caperton v. Martin 365 

Carew v. Western Union Telegraph 

Co. 200 

Carey v. Giles 106, 168, 182 

Cargill v. Power 180, 291 

Carleton v. People 187 

Carlslake v. Mapledorum 422 

Carman v. Steubenville & Indiana 

R.R. Co. 543 

Carne v. Litchfield 317 

Carpenter v. Dane Countv 334 

v. Landaff 568, 569, 570 

v. Montgomery 156, 187 

v. Oswego & Syracuse 

R.R. Co. 517 

v. Pennsylvania 266, 377 

v. People 323 

v. Snelling 484 

Carr v. Georgia R.R. Co. 562 

v. Northern Liberties 208, 254 

v. St. Louis 198 

Carroll v. Olmstead's Lessee 102 

v. St. Louis 212 

Carson v. Carson 266, 281 

v. Coleman 560 

v. McPhetridge 620 

Carter v. Dow 202, 595 

v. Harrison 616 

v. Walker 408 

v. Wright 557 

Casborus v. People 328 

Case v. Dean 366, 368, 520 

v. Reeve 49 

v. Rorabacker 133 

v. Thompson 560 

v. Wildridge 56 

Cash, Appellant 105 

Cash v. Whitworth 532 

Cass v. Dillon 119, 222, 228 

Castleberry v. Kelly 422 

Cates v. Wadlington 589 

Cathcart v. Robinson 23 

Catlin v. Smith 29 



Caulfield v. Bullock 616 

Cayuga Bridge Co. v. Magee 396 

Central Bridge Corporation v. 

Lowell 279, 526 

Central Ohio R.R. Co. v. Holler 570 
Central Park Extension, Matter of 533 
Central Plank Road Co. v. Han- 

naman 147 

Central R.R. Co. v. Hetfield 547 

v. Rockafellow 477 

Chadwick v. Moore 291 

Chagrin Falls, &c, Plank Road 

Co. v. Cane 545 

Chamberlain v. Lyell 181 

Chamberlain of London v. Comp- 

ton 200, 202 

Chambers v. Fisk 68 

v. Satterlee 507 

v. State 150 

Champaign v. Patterson 254 

Chandler v. Nash 89, 409 

Chapin v. Paper Works 396 

Chapman v. Albanv & Schenectady 

R.R. Co. 552 

v. Calder 434 

v. Morgan 397 

v. Smith 47 

Chappee v. Thomas 402 

Charles River Bridge v. Warren 

Bridge 266, 384, 394, 562 

Charleston v. Benjamin 476 

Charlestown Branch R.R. Co. v. 

Middlesex 560, 561 

Charlton v. Alleghany City 542 

v. Watton 449 

Chase v. Chase 401 

v. Cheney 467 

v. Merrimac Bank 244 

v. Miller 599 

Chase's Case 462 

Cheaney v. Hooser 118, 226, 488, 491 

Cheever v. Wilson 16 

Chenango Bridge Co. v. Bingham- 

ton Bridge Co. 279, 281, 384, 394, 

396 
Cherokee Nation v. Georgia 1, 62 

Cherokee Tobacco, The 11 

Chesapeake & Ohio Canal Co. v. 

Baltimore & Ohio R.R. Co. 526 

Chestnut v. Shane's Lessee 377 

Chetwynd v. Chetwynd 348 

Chicago v. Lamed 498, 501 

v. Robbins 14, 247 

v. Wheeler 563 

Chicago, Burlington, & Q. R.R. 

Co. v. Wilson 541 

Chicago, &c, R.R. Co. v. Adler 362 

v. Barrie 579 



XXIV 



TABLE OP CASES CITED. 



Page 
Chicago, &c, R.R. Co., v. Triplett 580 
Chidsey v. Canton 246 

Child v. Boston 253 

Child's Case 347 

Childs v. Shower 186, 387, 389 

Chiles v. Drake 147 

v. Monroe 147 

Chilvers v. People 201, 592 

Chisholm v. Georgia 5, 23 

Chrisman v. Bruce 616 

Christ Church v. Philadelphia 280, 284, 

382 
Christmas v. Russell 16 

Christy v. Commissioners 277 

Church v. Chapin 47 

Cincinnati v. Bryson 201 

v. Rice 476 

Cincinnati Gazette Co. v. Timber- 
lake 448, 449, 451 
Cincinnati, &c, R.R. Co. v. Com- 
missioners of Clinton Co. 91, 117, 

119 
Cincinnati Gas Light Co. v. State 202 
Cincinnati Health Ass'n v. Rosen- 
thal 15 
Cisco v. Roberts 586, 587 
City Council v. Benjamin 596 
City National Bank v. Mahan 14 
Clack 17. White 530 
Claflin v. Hopkinton 212, 219 
Clapp v. Cedar County 119, 216, 219 
v. Ely 96 
Clark, Matter of 15 
v. Baltimore 370 
v. Bridge Proprietors 193 
v. Buchanan 622 
v. Clark 111, 113, 284, 361, 370, 
401 
v. Crane 75 
v. Davenport 518 
v. Des Moines 193, 197, 212, 
215, 216, 217 
v. Ellis 177 
v. Holmes 406 
v. Irwin 73 
v. Janesville 119, 156, 157, 219 
v. Le Cren 200, 202 
v. Martin 286, 291 
v. McCreary 361 
v. McKenzie 622 
v. People 66, 182, 184 
v. Sammons 47 
v. Washington 205, 247, 251 
Clark's Adm'r v. Hannibal & St. 

Joseph R.R. Co. 580 

Clarke v. Rochester 119, 185 

v. Smith 13 

v. State 267, 269 



Clarke v. Van Surlay 
Clay v. Smith 
Clayton v. Hams 
Clegg v. Laffer 
Clemm v. State 
Clemens v. Conrad 
Clement v. Mattison 
Cleveland v. Rogers 
Cliffinger v. Hepbaugh 
Clifton v. Cook 



101 
294 
64 
423 
322 
484 
339 
406 
137 
618 



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

R. Co. 553 

v. Diaper 146 

v. Englebrecht 25 

Clough v. Unity 563 

Coates v. Muse 14 

Coats v. New York 127, 206, 595 

Cobbett v. Hudson 347 

Cobbett's Case 347 

Coburn v. Ellenwood 198 

Cochran v. Van Surley 88, 101, 105, 

168, 172 

Cochran's Case 339 

Cockagne v. Hodgkisson 425 

Cockrum v. State 350 

Coe v. Schultz 584, 595 

Coffin v. Coffin " 134, 447 

v. Tracy 397 

Coffman v. Bank of Kentucky 291 

v. Keightley 223 

Cohen v. Barrett 141 

v. Wright 263 

Cohens v. Virginia 11, 68 

Colburn v. Woodworth . 47 

Cole v. Bedford 228 

v. Medina 248 

v. Muscatine 206 

v. Wilson 465 . 

Coleman v. Carr 103 

Coles v. Madison County 192, 278, 

362 

Collector v. Day 483 

Collier v. Frierson 30 

Colman v. Holmes 365 

Colony v. Dublin 370 

Colt v. Eves 18, 78 

Colton v. Rossi 560 

Columbia Co. v. Davidson 187 

v. King 187, 217 

Columbus Ins. Co. v. Curtenius 592 

v. Peoria Bridge 

Co. 592 

Commercial Bank of Natchez v. 

State 279 

Commissioners, &c. V. Aspinwall 

119, 216 
v. Bowie 560 

v. Cox 216 



TABLE OF CASES CITED. 



XXV 



Page 
Commissioners, &c. v. Duckett 208, 

247, 252 
v. Gas Co. 200 
Commissioners, &c. v. Holyoke 

Water Power Co. 575 

Commissioners, &e. v. Martin 246 
v. Mighels • 241 
v. Pidge 589, 593 
v. Wallace 119 
v. Withers 589 
Commissioners of Revenue v. 

State 232 

Commonwealth ». Alderman 325 

v. Alger 523, 572, 594 
v. Anthes 323 

v. Archer 309 

v. Austin 336 

v. Aves 348 

v. Bacon 276 

v. Bakeman 327 

v. Billings 825 

v. Bird • 280, 3S3 

v. Blanding 420 

v. Blood 16 

v. Bonner 464 

v. Bowden 327 

v. Breed 536, 592 

v. Brennan 283 

v. Brickett 341 

v. Byrne 353 

v. Chapin 589 

v. Charlestown 590 
v. Clap 424, 439 

v. Clapp 176,179,581, 
582 
v. Colton 596 

v. Commissioners, 

&c. ' 361 

v. Cook 325 

v. County Commis- 
sioners 618 
v. Crotty 304 
v. Cullen 279 
v. Cummings 320 
v. Curtis 314, 315, 
316, 317, 588 
v. Dailey 319 
v. Dana 309 
v. Dewey 147 
v. Dorsey 272, 273 
v. Duane 361, 381 
v. Eastern R.R. Co. 580 
v. Emery 411 
v. Erie R.R. Co. 486 
v. Erie & North- 
east R.R. Co. 194, 
198, 545, 547 
v. Fells 327 



Commonwealth v. Fisher 476, 558 

v. Gamble 277 

v. Goddard 327 

v. Hall 273 

v. Harm an 316 

v. Hartman 173 

v. Hartnett 52 

v. Hippie 89 

v. Hitchings 177, 178 
v. Holbrook 584 

v. Howe 582 

v. Hunt 23 

v. Judges of Quar- 
ter Sessions 119 
v. Kendall 582 

v. Kimball 177, 309, 
361, 381 
v. Knapp 316, 323, 
330 
v. Kneeland 472, 473, 
475 
v. Knowlton . 23 

v. Leech 624 

v. Lisher 476 

v. Lodse 23 

v. Lottery Tickets 303 
v. Mann 276 

v. Marshall 361, 371, 
381 
v. Maxwell 168, 177 
v. McCloskey 167 

v. McCombs 187 

v. McLane 411 

v. McWilliams 117, 
119, 124 
v. Meeser 624 

v. Morey 316 

v. Morgan 317 

v. Mullen 317 

v. New Bedford 

Bridge 289 

v. Newburyport 193, 
232 
v. Nichols 455 

v. Olds 327 

v. Painter 119 

v. Patch 198, 200, 584, 
596 
v. Penn. Canal Co. 

526, 576, 577, 578 
v. Pittsburg 233 

v. Pittsburg, &c, 

R.R. Co. 394, 526 
v. Pomeroy 177 

v. Porter 323, 336 

v. Putnam 402 

v. Randall 341 

v. Reed 411 



XXVI 



. TABLE OP CASES CITED. 



Commonwealth v. Richter 542 

v. Roby 328 

v. Rock 323 

v. Roxbury 189 

v. Ryan 411 

v. Semmes 309 

v. Snelling 465 

v. Stodder 201, 588, 

596 

V. Stowell 327 

v. Taylor 314, 816 

v. Tewksbury 572, 594 

v. Towles 15 

v. Tuck 325, 327 

v. Tuckerman 316 

v. Van Tuyl 323 

v. Waite 596 

v. Webster 325 

v. Wilkinson 545 

v. Williams 366 

v. Woelper 605 

v. Wolf 476 

v. Wood 325 

v. Worcester 200, 588 

Commonwealth Bank v. Griffith 12 

Company of Free Fishers v. Gann 523 

Concord v. Boscawen 212 

Concord R.R. Co. v. Greeley 530 

Cone v. Cotton 404 

v. Hartford 588 

Confiscation Cases 362 

Conkey v. Hart 286, 288, 289, 292 

Connecticut M. L. Insurance Co. v. 

Cross 26 

Connell v. Connell 377 

Conner v. Elliott 15 

v. New York 143, 146, 276 

Connor v. Fulsom 223 

Connors v. People 317 

Conrad v. Ithaca 247 

Conservators of River Tone v. Ash 198 

Conway v. Cable 368, 369, 370, 382 

v. Taylor's Ex'r 592 

v. Waverly 521 

Conwell v. O'Brien 198 

Cook v. Gray 290 

v. Gregg 286, 364 

v. Hill 434 

v. Moffat 11, 294 

v. Vimont 49 

Cooley v. Board of Wardens 486, 586, 

587 

v. Freeholders 246 

Coolidge v. Guthrie 530 

v. Williams 396 

Cooper v. Barber 457 

v. Cooper 402 

v. Greeley 424, 457 



Cooper v. McJunkin 
v. Stone 
v. Sunderland 
v. Telfair 
v. Williams 



340 
457 

406, 407 
89, 169, 182 

527, 530 



Coosa River Steamboat Co. v. Bar- 
clay 581 
Copes v. Charleston 119 
Corbett v. Bradley 76 
Corbin v. Hill 368 
Corey's Case 310 
Corfield v. Coryell 15, 396, 487 
Coriell v. Ham 286 
Corliss v. Corliss 78 
Corning v. Greene 118, 119 
Corwin v. New York & Erie R.R. 

Co. 578, 579 

Costar v. Brush 281 

Coster v. New Jersey R.R. Co. 558 
Cotes v. Davenport 253 

Cotton v. Commissioners of Leon 119, 

168, 182 

Couch v. McKee 365 

Cougot v. New Orleans 596 

Coutant v. People 66, 68, 182 

Cover v. Baytown 219 

Covington v. Bryant 247 

v. Southgate 382, 491, 493, 

500 

Cowan v. Milbourn 472 

Coward v. Wellington 434 

Cowen v. West Troy 198 

Cowgill v. Long 381 

Cowlcs v. Harts 49 

Cox v. Bunker 423 

v. Coleridge 313 

v. Cox 402 

v. Lee 463 

Coxe v. Martin 291 

Coxhead v. Richards 425 

Coyner v. Lvnde 397 

Craft v. State Bank 23 

Craig v. Burnett 200, 201 

v. Dimmock 484 

v. Kline 591 

v. Missouri 14 

v. Rochester City & Brighton 

R.R. Co. 547, 550 

Crandall v. James 47, 410 

v. Nevada 486 

v. People 316 

v. State 15, 396 

Crane v. Mejjinnis 113, 405 

Crawford v. Delaware 207, 542, 543, 

556 

v. Wilson 30 

Creal v. Keokuk 206, 253, 542 

Crenshaw v. Slate River Co. 168, 536 



TABLE OF CASES CITED. 



XXV11 



Creote v. Chicago 
Crevey v. Carr 
Crone v. Angell 
Cronise v Cronise 
Ci'osby v. Hanover 
v. Lyon 



501 
465 
422 
113, 284 
526 
515 



Crowell v. Hopkinton 219, 223, 490, 

494 
v. Randell 12 

Crowley v. Copley 512, 588 

Crozier v. Cudney 307 

Cubbison v. McCreary 477 

Cumming v. Police Jury 499 

Cuminings v. Missouri ' 33, 260, 263, 

266 
Cunningham v. Brown 441 

Cupp v. Seneca Co. 403, 561 

Curran v. Arkansas 14 

v Schattuck _ 560, 562 

Currier v. Marietta & Cincinnati 

R.R. Co. 530 

Curry v. Walter 449 

Curtis v. Curtis 422 

v. Gibbs 404 

v. Leavitt 293, 362, 375 

v. Mussey 436 

v. State 311 

v. Whipple 175, 491, 494, 536 

v. Whitney 286, 288 

Cushman v. Smith 560 

Cusic v. Douglass 287, 361 

Cutlip v. Sheriff 147, 149 

Cutts v. Hardee 291 

Cuyler v. Rochester 397 

Cvpress Swamp Draining Co. v. 

"Hooper 488, 491 



1). 



Dade v. Medcalf 378 
Dailey v. Reynolds 423 
Daily Post Co. v. McArthur 457 
Dakin v. Hudson 406 
Dalby v. Wolf 190 
Dale v. Lyon 455 
v. The Governor 383 
v. State 323 
Dalrymple v. Mead 589 
Dana's Case . 319, 410 
Dancaster v. Hewson 442 
Dane County v. Dunning 410 
Daniel Ball, The 591 
Darcy v. Allain 393 
Dargan v. Mobile 248 
Darling v. Rogers 129 
Darrington v. State Bank of Ala- 
bama 14 



Darst v. People 201 

Dart v. Houston 280 

Dartmouth College v. Woodward 126, 
192, 214, 236, 237, 251, 276, 279, 
284, 353, 575 
Dash v. Van Kleek 62, 63, 92, 94, 266, 

361, 369 
Davenport, &c, Co. v. Davenport 198 
Davidson v. Boston & Maine R.R. 

Co. 541, 542 

Davies v. McKeeby 64, 358, 363 

v. Morgan 200 

Davis v. Bank of Fulton 142 

v. Holbrook 614 

v. Minor 365 

v. New York 206, 207 

v. Richardson 484 

v. State 114, 143, 146, 151, 177 

v. State Bank 103, 372, 377 

v. Wood 49 

v. Woolnough 147 

Davis's Lessee v. Powell 389 

Davison v. Duncan 459 

v. Johonnot 103, 391 

Dawkins v. Pawlet 442 

v. Rokeby 442 

Dawson v. Coffman 23 

v. Duncan 455 

v. Shaver 168 

v. State 269 

Day v. Buffington 484 

v. Gallup 12 

v. Green 588 

v. Jones 599 

V. Kent 618 

v. Munson 53 

v. Savadge 410 

Dean v. Borschsenius 369, 379 

v. Gleason 381. 515 

v. Sullivan R.R. Co. 558, 564 

Dearborn v. Boston, C, & M. R.R. 

Co. 214, 570 

Deaton v. Polk Co. 569 

Deblois v. Barker 588 

Debolt v. Ohio Life Ins. & Trust 

Co. 
De Camp v. Eveland 
Decatur v. Fisher 
Dechastellux v. Fairchild 



De Cordova v. Galveston 
Dedham v. Natick 
De Jarnette v. Haynes 
Dekraft v. Barney 
Delaplaine v. Cook 
Delegal v. Highley 
Delmonico v. New York 
De Mill v. Lockwood 



126 
186 
249 
46, 91, 96, 
109 
370 
339 
164 
346 
367 
448 
253 
360 



xxvm 



TABLE OP CASES CITED. 









Page 


De Moss v. Newton 






366 


Dempsey v. People 






318 


Den v. Downam 






373 


v. Dubois 






57 


v. Reid 






57 


i v. Sehenck 






57 


Denham v. Holeman 






146 


Denison v. Hyde 






404 


Denning v. Corwin 






406 


Denny v. Mattoon 




107 


, 382 


Denton v. Jackson 


198 


212 


, 210 


v. Polk 






568 


Depew v. Trustees 


3f W. & 




Canal 


26, 589 


, 592 


, 593 


Derby v. Derby 






314 


Derby Turnpike Co. 


v. Parks 




168 


Dergan v. Boston 






499 


Detmold v. Drake 






181 


Detroit v. Blackeby 






247 


v. Corey 




217 


252 


Detroit Free Press v. 


McArth 


ur 


457 


Deutzel v. Waldie 






377 


De Varaigne v. Fox 






558 


Devin v. Seott 






583 


Devon Witches, Case 


of 




341 


De Voss v. Richinoiu 






216 


Devoy v. New York 






186 


Devries v. Phillips 






317 


Dew v. Cunningham 






140 


Dewey v. Detroit 






249 


Dewolf v. Rabaud 






13 


Dexter v. Tiber 






422 


Dibdin v. Swan 






457 


Dick v. MeLaurin 






408 


Dicken's Case 






337 


Dickenson v. Fitchbu 


■g 567, 


568, 


569 


Dickinson v. Hayes 






47 


Dickey v. Hurlburt 






619 


v. Tennison 




530, 


562 


Dicks v. Hatch 






397 


Dickson v. Dickson 






113 


Dikeman v. Dikeman 






290 


Dillingham v. Snow 




197, 


521 


Dimes v. Proprietor 


5 of G 


rand 




Juncrion Canal 




411, 


412 


Dingley v. Boston 




533, 


558 


Dishon v. Smith 


603, 


618, 


623 


District Township v. Dubuque 


56 


57, 






65, 74 


Ditson v. Ditson 




402, 


404 


Dively v. Cedar Falls 




215, 


411 


Dixon v. Parmelee 






334 


Dobbins v. Commissionei's of Erie 




Co. 






482 


v. State 






327 


Dodge v. County Commissioners 


570 


v. Gridley 






151 


v. Woolsey 


11, 


126, 


280 



Doe v. Beebe 525 

v. Braden 11 

v. Douglass 26, 102, 168 

v. McQuilkin 521 

Dole v. The Governor 280 

v. Lyon 455 

Done v. People 328 

Donkle v, Kohn 478 

Donnelly v. State 318 

Dorgan v. Boston 499 

Dorian v. East Brandy wine, &c, 

R.R. Co. 569, 570 

Dorr, Ex parte 345, 346 

Dorrance Street, Matter of 588 

Dorsey, Matter of 64 

v. Dorsey 402 

v. Gilbert 103 

Doss v. Commonwealth 323 

Dothage v. Stewart 387 

Doughertv v. Commonwealth 318 

Doughty v. Hope 78, 402 

v. Somerville & Eastern 

R.R. Co. 566, 567, 569 
Douglass v . Placerville 191, 195 

v. Turnpike Co. 545 

Dover v. Portsmouth Bridge 592 

Dow v. Norris 168, 182, 185 

Uow's Case 15 

Downing v. Porter 304 

v. Wilson 423 

Doyle v. O'Doherty 442 

Drake v. Philadelphia, &c, R.R. 

Co. 579 

Drehman v. Stifle 260, 262, 263, 289 
Drennan v. People 52 

Drew v. Davis 521 

Dronberger v. Reed 561 

Druliner e. State 605 

Drummond v. Leslie 423 

Dryfuss v. Bridges 78 

Dubois v. McLean 13, 104 

Dubuque Co. v. Railroad Co. 119, 219 
Ducat v. Chicago 15 

Duchess of Kingston's Case 47 

Dudley v. Mahew 397 

Duffy v. Hobson 484 

Duke v. Rome 208 

Dulany's Lessee ». Tilghman 376, 377 
Duncan v. Thwaites 449 

Duncaster v.- Hewson 442 

Duncombe v. Daniell 437 

v. Prindle 146 

Dunden v. Snodgrass 371 

Dunham v. Chicago 515 

v. Powers 441 

v. Rochester 194, 200, 202 
Dunlap v. Glidden 441 

425 



TABLE OF CASES CITED. 



XXIX 









Page 






Page 


Dunniore's Appeal 




230 


233 


Elliott v. People 




329 


Dunn v. Sargeant 






361 


Ellis v, Jones 




287 


v. State 






318 


v. State 




391 


v. Winters 






442 


Ellyson, Ex parte 




623 


Durach's Appeal 




191, 


514 


Elmendorf v. Carmichael 




96 


Durant v. Essex Co. 






51 


v. New York 




78 


v. Kauffman 






494 


v. Taylor 




13 


v. People 






317 


Else v. Smith 




303 


Durham v. Lewiston 


96, 


168, 


392 


Elwell v. Shaw 


520, 


521 


Durkee v. Janesville 




145, 


392 


Ely v. Thompson 177 


L86 


350 


Duverge's Heirs v. Salter 






151 


Embury v. Conner 163, 181, 


530, 


540, 


Dwyer v. Goran 






47 






541 


Dyckman v. New York 






406 


Emerson v. Atwater 


50, 52 


Dyer v. Morris 






42.-; 


Emery v. Gas Co. 




499 


v. Tuscaloosa Bridge 


Co 




396 


Emery's < !ase 


134, 


313 



E. 

Eakin v. Racob 66 

Earle v. Picken 314 

Easley v. Moss 425 

Eason v. State 182 

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

v. Gattke 564 

East Hartford v. Hartford Bridge 

Co. 205, 239, 277 

Eastman v. McAlpin 141 

v. Meredith 241, 246 

East Saginaw Salt Manuf. Co. v. 

East Saginaw 280, 284, 383 

East St. Louis v. "Wehrung 205 

Easton Bank v. Commonwealth 28' I 
Eaton v. Boston, &c, R.R. Co. 526, 
538, 542, 543, 545 
v. United States 361, 381 

Echols v. Staunton 530 

Eddings v. Seabrook 541, 542 

Edgarton v. Hart 408 

Edmonds v. Banbury 601 

Edwards v. Jaggers 279 

v. James 78 

v. Pope 104, 106 

Edward's Lessee v. Darby 68 

Eels v. People 178, 179 

Eggleston v. Doolittle 467 

Egyptian Levee Co. v. Hardin 498, 512 
Eimer v. Richards 47 

Eitel v. State 129, 157 

Elam v. Badger 425 

Elder v. Barrus 589 

v. Reel 402 

Eldridge v. Smith 526, 531 

Election Law, Matter of 614 

Elijah v. State 327 

Elliot o. Ailsbury 423 

Elliott v. Fairhaven & Westville 

R.R. Co. 550 



Empire City Bank, Matter of 402, 403 
Enfield Toll Bridge Co. v. Hart- 
ford & N. II. R.R. Co. 281 
Engle v. Shurtz 362, 381 
English v. Chicot Co. 195 
v. New Haven, &c, Co. 384 
Ensworth v. Albin 129, 601 
Entinck v. Carrington 302, 303, 307 
Erie City v. Schwingle 254 
Erie Railroad Co. v. Commonwealth 280 
v. New Jersey 486 
Erie & N. E. R.R. Co. v. Casey 106 
Erlinger v. Bousan 147 
Ernst v. Kunkle 507 
Ervine's Appeal 91, 105, 106, 175, 352, 

353 
Esmon v. State 
Essex Co. ». Pacific Mills 
Essex Witches, Case of 
Este v. Strong 
Estep v. Hutchman 
Esty v. Westminster 
Etheridge v. Osborn 
Eustis v. Parker 
Evans v. Montgomery 

v. Myers 
Evansville, &c., R.R. Co 
Ewing v. Filley 
Exchange Bank v. Ilines 
Eyre v. Jacob 
Ezekiel v. Dixon 



328 

70 

314 

49 

103, 104 

228 

47 

214 

266, 286 

69 

Dick 543 

618, 624 

177, 493 

182 

56 



F. 

Facey v. Fuller 406, 408 

Fairchild v. Adams 441 

Fairfield v. Ratclifie 499 

Fairhurst v. Lewis 339 

Fairman v. Ives 439 

Falconer v. Campbell 266 

v. Robinson 151 

Fales v. Wadsworth 366, 367 



XXX 



TABLE OP CASES CITED. 



Fanning v. Gregorie 593 

Farley v. Dowe 287 

Farmers & Mechanics Bank v. 

Butchers & Drovers Bank 216 

Farmers & Mechanics Bank v. 

Smith 68, 182, 293 

Farney v. Towle 12 

Farnsworth v. Vance 291 

Farnum v. Concord 246 

Farr v. Sherman 61 

Fawcett v. Fowliss 406 

v. York & North Midland 

R.R. Co. 579 

Fehr v. Schuylkill Nav. Co. 570 

Felton's Case 313 

Fenton v. Garlick 16, 404 

Fenwick v. Gill 387 

Ferguson v. Landram 228, 389, 488 

v. Loar 530 

Ferraria v. Vasconcellos 466, 467 

Fetter, Matter of 15 

Field v. Gibbs 16 

v. People 64, 115 

Fifield v. Close 483 

Finney v. Boyd 47 

Fire Department v. Holfenstein 15 

v. Noble 15 

v. Wright 15 

Fireman's Association v. Lounsbury 145 

First Parish, &c. v. Middlesex 567, 

570 

v. Stearns 620, 621 

Fish v. Kenosha 217 

Fisher v. Haldiman 14 

v. Horricon Co. 536 

o. McGirr 177, 304, 305, 583, 

595 

Fisher's Lessee v. Cockerell 12 

Fisher's Negroes v. Dobbs 370 

Fishkill v. Fishkill & Beekman 

Plank Road Co. 145, 146 

Fiske v. Hazzard 219 

v. Eramineham Manuf. Co. 536 
Fitchburg R. R. Co. v. Grand 

Junction R.R. Co. 575,580 

Flanagan v. Philadelphia 593 

Fletcher v. Auburn & Syracuse R. 

R. Co. 560 

v. Lord Somers 50 

v. Oliver 64, 142, 146 

v. Peck 88, 169, 182, 260, 266, 

274, 560 

Flint v. Pike 448, 449 

Flint, &c, Plank Road Co. v. 

Woodhull 106, 187 

Flint River Steamboat Co. v. Fos- 
ter 167, 182 
Florentine v. Barton 101, 102 



Flournov v. Jeffersonville 409 

Floyd v. Mintsey 49 

Foley v. People 310 

v. State 146, 149 

Fonvard v. Adams 423 

Foote v. Fire Department 595 

Forbes v. Halsey 367 
Ford v. Chicago & N. W. R. R. 

Co. 538, 548 

Fordyce v. Goodman 135 
Fort Dodge v. District Township 616 
Forward v. Hampshire, &c, Canal 

Co. 526 

Foss v. Hildreth 464 

Foster v. Essex Bank 182, 293, 361, 

378 

v. Kenosha 518 

v. Neilson 11 

v. Scarff'e 603, 616 

Fowler v. Chatterton 367 

v. Danvers 222 

v. Halbert 387 

v. Pierce 153 

Fox, Ex parte 299 

v. State of Ohio 18, 200 

v. W. P. Railroad Co. 560 

Foxcroft v. Mallett 14 

Frain v. State 314 

Franklin v. State 335 

Franklin Bridge Co. v. Wood 168, 182 

Frankfort v. Winterport 137, 212 

Frary v. Frary 401 

Freeborn v. Pettibone 290 

Freedman v. Sigel 484 

Free Fishers' Co. v. Gann 523 

Free Holders, &c. v. Barber 201 

Freeland v. Hastings 175, 212, 228, 

488, 494 

Freeman v. Hardwick 614 

v. Price 423 

Freeport v. Marks 208 

Frees v. Ford 163 

Freleigh v. State 283 

Frellson v. Mahan 512 

French v. Braintree Manuf. Co. 534 

v. Camp 590 

v. Edwards 77 

v. Kirkland 510 

Freyer v. Kinnersley 425 

Friend v. Hamill 616 

Frisbie v. Fowler 423 

Frolickstein v. Mobile 477, 596 

Frost v. Belmont 136, 191, 211 

Fry v. Bennett 457 

v. Booth 78, 618 

Fuller v. Dame 136, 137 

v. Eddinga 541 

v. Groton 209 



TABLE OP CASES CITED. 



XXXI 



Fuller v. Hampton 245 

Fullerton v. Bank of United States 13 
Fulton v. Davenport 501 

v. McAffee 12 

Furman v. New York 56 

v. Niehol 284 

Furman Street, Matter of 498, 542, 

567 
Furniss v. Hudson River R.R. Co. 564 



G. 



Gabbert v. Railroad Co. 145, 146 

Gaines v. Buford 385 

v. Gaines 113 

v. Robb 119 

Gale v. Kalamazoo 585, 596 

v. Mead 78 

v. South Berwick 212 

Galen v. Clyde & Rose Plank Road 

Co. 246 

Galena & Chicago Union R.R. Co. 

v. Appleby 575, 580 

Galena & Chicago Union R.R. Co. 

v. Dill 580 

Galena & Chicago Union R.R. Co. 

v. Loomis 575, 580 

Gall v. Cincinnati 596 

Gallatin v. Bradford 200, 202 

Gantley's Lessee v. Ewing 289 

Garbett, Ex parte 337 

Garcia v. Lee 11 

Gardner v. Collins 13 

v. Newburg 526, 532, 557, 

560 

v. Ward 616 

Garland, Ex parte 260, 262, 263, 266 

Garr v. Selden 441, 444 

Garrard Co. Court v. Kentucky 

River Navigation Co. 179 

Garrett v. Beaumont 370 

v. Cordell 289 

v. Doe 370 

v . St. Louis 506 

Garrison v. New York 249 

v. Tillinghast 486 

Gascoigne v. Ambler 423 

Gaskill v. Dudley 245 

Gates v. Neal 616 

Gathercole v. Mi all 439, 457 

Gaulden v. State 337 

Geary v. Simmons 47 

Geebrick v. State 117, 123, 124 

Gelpecke v. Dubuque 14, 119, 215 

Gentile v. State 128, 593 

Gentry v. Griffith 133, 173 

George v. Gillespie 47 



Page 

Georgia, &c, R.R. Co. v. Harris 397, 

399 
Gerard v. People 327 

German, &c., Cong. v. Pressler 466 
German Reformed Church v. 

Seibert 467 

Gerrish v. Brown 589 

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

119 379 

v. Ogden 9, 58', 591 

Gibbs v. Gale 367 

Gibson, Ex parte 348 

v. Armstrong 467 

v. Choteau 366 

v. Emerson 89 

v. Hibbard 378 

v. Mason 356, 598 

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

Co. 541,558,569 

Gifford v. Railroad Co. 147 

Gilbert t\ People 442, 444 

Gildersleeve v. People 402 

Gilkeson v. Frederick Justices 190 

Gill v. Parker 582 

Gillespie v. Palmer 598, 616, 619 

v. State 146, 149 

Gilliland v. Phillips 376 

v. Sellers's AdmV 397 

Gillinwater v. Mississippi & Atlan- 
tic R.R. Co. 41, 528, 529 
Gilman v. Cutts 359 
v. Lockwood 294 
v. Philadelphia 9, 586, 587, 
591 
v. Sheboygan 280 
Gilmer v. Lime Point 525, 526, 530, 
537, 561, 562 
Ginn v. Rogers 397 
Girard v. Philadelphia 192 
Girard Will Case 472 
Girdner v. Stephens 33, 365 
Gladden v. State 318 
Gleason v. Dodd 16, 404 
v. Gleason 402 
Gloucester Ins. Co. v. Younger 14 
Glover v. Powell 545, 590 
Godard, Petitioner 198, 200, 588 
Goddard v. Jacksonville 581 
Goddin v. Crump 119, 186 
Goenan v. Schroeder 290 
Goetchens v. Mathewson 616 
Goggans v. Turnispeed 285 
Good v. Zercher 377 
Goodell v. Jackson . 50 
Goodenough, In re 348 
Goodman v. State 317 
Goodrich v. Detroit 196 
v. Winchester, &c, Co. 499 



xxxu 



TABLE OF CASES CITED. 



Goodtitle v. Kibbee 525 

v. Otway 50 

Gooselink v. Campbell 588 

Gordon v. Appeal Tax Court 126, 280 

v. Caldcleugk 12 

v. Comes 230, 232, 493 

v. Farrar 616 

v. Ingraham 91 

Gorham v. Campbell 618 

v. Springfield 119 

Gormley v. Taylor 182 

Goshen v. Richmond 384 

v. Stonington 167, 372, 375, 

379 

Goshorn v. Purcell 370, 377 

Goslin v. Cannon 426, 442 

Gosling v. Veley 200 

Goszler v. Georgetown 206, 542 

Gough v. Dorsey 89 

Gould v. Hudson River R.R. Co. 541, 

544 
v. Sterling 197, 215, 216, 379 
Gove v. Epping 219, 494 

Governor v. Porter 94 

Graham, Ex parte 61, 62, 370 

Grammar School v. Burt 279 

Granby v. Thurston 192 

Grand Rapids v. Hughes 194 

Granger v. Pulaski Co. 240, 246 

Grannahan v. Hannibal, &c, R.R. 

Co. 575, 581 

Grant v. Brooklyn 253 

v. Courter 119, 172 

v. Erie 208 

v. Leach 396 

Graves v. Blanchet 423 

v. Otis 206, 542 

Gray v. First Division, &c. 547 

v. Pentland 433 

v. State 394 

Gray's Lessee v. Askew 52 

Great Falls Manufacturing Co. v. 

Fernald 536 

Great Western R.R. Co. v. Deca- 
tur 578 
Green v. Biddle 275 
v. Chapman 457 
v. Collins 397 
v. Custard 404 
v. Holway 484 
v. Mayor, &c. 146 
v. Neat's Lessee 13, 14 
v. Portland 554 
v. Reading 542 
v. Sarmiento 16 
v. Savannah 585 
v. Slmmway 273, 599 
v. Telfair 464 



Green v. Van Buskirk 16 

v. Weller 57, 58, 59 

Greencastle, *fec, Co. v. State 53, 

151 
Greencastle Township v. Black 57, 58, 

72, 79 
Greene v. Briggs 305, 352, 410 

Greenlaw v. Greenlaw 401 

Greenough v. Greenough 90, 91, 94, 

106, 379 
Greensboro 1 v. Mullins 200 

Greenville & Columbia R.R. Co. 

v. Partlow 568, 569, 570 

Grier v. Shackleford 633 

Griggs v. Foote 206 

Griffin v. Martin 544 

v. McKenzie 365 

v. Mixon 362 

v. New York 208 

v. Ranney 484 

v. Wilcox 289, 361, 362 

Griffith's Ex'r v. Cunningham 109, 

382, 392 
Griffing v. Gibb 14 

Grim v. Weisenberg School Dis- 
trict 373, 490 
Grimes v. Coyle 426, 442 
v. Doe 375 
Grogan v. San Francisco 239, 275 
v. State 327 
Grosbeck v. Seeley 366, 368 
Grosvenor v. Chesley 286 
Grove v. Brandenburg 441 
Guard v. Rowan 370 
Guenther v. People 328 
Guild v. Rogers 286, 288 
Guile v. Brown 410 
Guilford v. Cornell 145 
v. Supervisors of Che- 
nango 211,226, 230,279, 
381, 490 
Guillotte v. New Orleans 596 
Gulick v. New 620 
v. Ward 137 
Gunn v. Barry 287 
Gut v. State 273 



H. 



Hadden v. Chorn 467 

v. The Collector 141 

Hadduck's Case 197 

Hadley v. Albany 622, 624 

Hadsell v. Hancock 209 

Hagan v. Hendry 465 

Hagerstown v. Dechert 178, 179 

Hawkins 146 



TABLE OF CASES CITED. 



XXX111 







Page 


Haight v. Grist 




484 


Haines v. Levin 




410 


Hakewell, Matter of 




348 


v. Ingram 




463 


Hale v. Kenosha 




499 


v. Lawrence 


526 


594 


v. Wilkinson 




484 


Haley v. Clark 

v. Philadelphia 
v. Taylor 

Hall v. Bunte 


94 


115 
370 
340 
144 


v. Marks 




409 


v. Thayer 


411 


412 



v. Washington County 334 

v. Williams 16, 404 

Hallock v. Franklin County 563 

v. Miller 424 

Halstead v. New York 193, 211, 212, 

216 

Ham v. McClaws 165 

v. Salem 532 

Hamilton v. Carthage 254 

v. Kneeland 23 

v . St. Louis County Court 37, 

65 

Hamilton Co. v. Mighels 241 

Hanimett v. Philadelphia 283, 493, 498, 

507 

Hammond v. Anderson 50 

v. People 348 

Hampshire v. Franklin 193, 491 

Hampton v. Coffin 563 

v. McConnell 16 

Hamrick v. Rouse 127 

Hand v. Ballon 367 

Handy v. Chatfield 289, 292 

v. State 323 

Haney v. Marshall 15 

Hannel v. Smith 53 

Hanover v. Turner 401, 402 

Hansen v. Vernon 215, 488 

Happy v. Morton 466 

v. Mosher 403 

Harbeck v. New York 186 

Harbin v. Chiles 16 

Hard v. Nearing 354, 356 

Hardenburg v. Lockwood 544 

Hardiman v. Downer 287, 288 
Harding v. Alden 402, 404, 405 

t>. Goodlet 536 

Hardwick v. Pawlet 339 

Hare v. Hare 402 

v. Mellor 433 

Harlan v. People 18 

Harmon v. Wallace 290 

Harmony v. Mitchell 594 

Harp v. Osgood 341 

Harpending v. Haight 153 



Harpending v. Reformed Church 13 
Harper v. Richardson 560, 561 

Harrington v. County Commis- 
sioners 563 
v. State 325 
Harris v. Colquit 47 
v. Dennie 12 
v. Harrington 433 
v. Harris 47 
v. Inhabitants of Marble- 
head 389 
v. Morris 339 
v. Roof 137 
v . Rutledge 378 
Harrison v. Baltimore 584 
v. Bridgeton 192, 193, 239 
v. Bush 425, 426 
v. Harrison 402, 404, 405 
v. Leach 60 
v. State 168 
Harrison Justices v. Holland 192 
Harrow v. Myers 53 
Hart v. Albany 205, 572, 594 
v. Brooklyn 249, 588 
v. Evans 610 
v. Henderson 369 
v. Holden 223 
v. Jewett 47 
v. State 273 
Harteau v. Harteau 402 
Hartford Bridge Co. v. Union 

Ferry Co. 168, 182 

Hartland v. Church 5U0 

Hartt v. Harvey 622 

Hartung v. People 270, 329, 361, 381 
Harvey v. Lackawana, &c, R.R. 

Co. 541, 542, 568 

v. Thomas 168, 357, 530 

Harwood v. Astley 438 

Hasbrouck v. Milwaukee 213, 230, 232, 

379 

v. Shipman 291 

Hastings v. Lane 62, 370 

v. Lusk 444 

Hatch v. Lane 425 

v. Vermont Central R.R. 

Co. 542, 557, 570 

Hathorn v. Lyon 361 

Hatsfield v. Gulden 137 

Haverill Bridge Proprietors v. 

County Comrs. 560 

Hawkins v. Barney's Lessee 275 

v. Jones 47 

Hawthorne v. Calef 279, 292 

Hay v. Cohoes Company 536, 543 

Harden v. Foster 521 

v. Noyes 200, 202 

Hayes v. Reese 47 



XXXIV 



TABLE .OF CASES CITED. 



Haynes v. Burlington 

v . Thomas 
Hays v. Brierly 
v. Risher 
Haywood v. Savannah 
Hazen v. Essex Company 
Head v. Providence, &c, Co. 
Heath, Ex parte 



526 
543 
464 
538 
198 
536 
216 
78,616, 618, 
621 

Hector v. State 327 

Hedges v. Madison Co. 246 

Hedley v. Franklin County 182 

Hedgeman v. Western R.R. Co. 575, 

576 

Henderson v. Griffin 13 

Henderson's Distilled Spirits 303 

Tobacco 151 

Hendrick's Case 18 

Hendrickson v. Decow 467 

v. Hendrickson 156, 187 

Henley v. Lyme Regis 247, 252 

Henry v. Chester 515 

v. Dubuque & Pacific R.R. 

Co. 558, 562, 567 

V. Henry 146 

v. Tilson 65 

Henshaw v. Foster 83, 605 

Hensley v. Force 16 

Henton v. State 307 

Hepburn v. dirts 361, 373 

Hepburn's Case 530 

Herber v. State 269 

Herrick v. Randolph 280, 479 

Hersey v. Supervisors of Milwau- 
kee 515, 521, 522 
Hershaw v. Taylor 406 
Hess v. Pegg 52, 129, 191, 192 
v. VVertz 375 
Hewitt v. Prince 334 
Hewson v. New Haven 208 
Heydenfeldt v. Towns 412 
Heyfron, Ex parte 404 
Hey ward v. Judd 286, 290 
v. New York 164, 181, 524, 
555, 558 
Hibbard v. People 304, 305, 583 
Hickerson v. Benson 615 
Hickey v. Hinsdale 78 
Hickie v. Starke 12 
Hickok v. Plattsburg 248 
Hickox v. Tallman 336, 367 
Higgins v. Chicago 563 
High's Case 599 
Hitbish v. Leatherman 228 
Hildreth v. Lowell 533, 588 
Hill, Ex parte 346 
v. Boyland 82 
v. Commissioners 146 



Hill v. Higdon 498, 506, 507, 509, 514, 

518 

v. Hill 622 

v. Kessler 287, 288 

v. Kricke 365, 366 

v. People 319, 397, 399 

v. Sunderland 96 

v. Wells 411 

Hill's Case 318 

Hillard v. Moore 289 

Hillyard v. Miller ■ 379 

Hinchman v. Paterson Horse R. 

Co. 555, 557, 593 

v. Town 399 

Hinde v. Vattier 13 

Hindman v. Piper 106 

Hine, The v. Trevor 18 

Hines v. Leavenworth 498, 507 

Hingham, &c, Turnpike Co. v. 

Norfolk Co. 163 

Hingle v. State 141, 143 

Ilinman v. Chicago, &c, R.R. Co. 579 
Hinsen v. Lott 486 

Hirn v. State 151, 283 

Hiss v. Bartlett 133 

Hitchcock v. Davis 68 

Hoag v. Hatch 422 

Hoar v. Wood 443, 444 

Hoare v. Silverlock 448 

Hobart v. Supervisors, &c. 119, 168 
Hoboken v. Phinney 517 

Hodges v. Buffalo 193, 211 

Hodgson v. Mill ward 362, 363 

v. Scarlett 443 

Hoffman v. Hoffinan 16, 401, 402 

v. Locke 409 

Hogg v. Zanesville Canal Manuf. 

Co. 26, 593 

Hoke v. Henderson 354 

Holbrook v. Finney 360 

v. Murray 16 

Holden v. James 168, 365, 391, 392 
Holder v. State 322 

Holland v. Osgood 78 

Holley v. Burgess 422 

Hul lings worth v. Shaw 422 

Hollister v. Hollister 402 

Holloway v. Sherman 286, 287, 361 
Holman's Heirs v. Bank of Nor- 
folk 101, 404, 405 
Holmes v. Holmes 284, 405 
v. Jennison 12 
Holt v. Scolefield 422 
v. State 269 
Home v. Bentinck 442 
Home of the Friendless v. Rouse 280 
Homestead Cases 288 
Hood v. Finch 562 



TABLE OF CASES CITED. 



XXXV 



Page 
Hood v. Lynn 212 

Hooker v. New Haven, &c, Co. 541, 

543, 544 
Hooper v. Bridgewater 532 

v. Emery 1£5, 488, 494 

Hoover v. Wood 163 

Hope v. Jackson 361 

Hopkins v. Beedle 422 

v. Hopkins 401 

Hopple v. Brown 195, 216, 241 

Hopps v. People 309 

Hopson, In re 346 

Horn v. Atlantic & St. Lawrence 

R.R. Co. 578, 579 

Horton v. Baptist Church 467 

Hosmer v . Loveland 434, 447 

Hotchkiss v. Oliphant 453, 455 

Hottentot Venus Case 347 

Houghton v. Page 23 

House v. Rochester 541 

Houston v. Moore 18 

Howard, Ex parte 116 

w.JVlcDianiid 192,624 

v. Shields 618 

v. Thompson 433 

v. Zeyer 387, 389 

Howell v. Bristol 503, 507 

v. Buffalo 232, 254 

v. Fry 410 

Hoxie v. Wright 16, 401 

Hoyt t\ Benner 484 

v. East Saginaw 507 

v. .Sheldon 12 

Hubbard v. Bell 590 

v. Brainerd 362, 370 

Hubbell v. Hubbell 402, 404 

Huber v. Reily 263, 266, 352, 599 

Huckle v. Money 307 

Hudson v. Geary 476, 596 

v. Thorne 201 

Hudspeth v. Davis 291 

Huff' v. Bennett 449, 455 

Hughes v. Baltimore 208 

v. Hughes 68 

Hughey's Lessee v. Horrell 382, 500 

Hull v. Hull 402, 404 

v. Marshall Co. 217 

Hulseman v. Rems 599, 624 

Humboldt Co. v. Churchill Co. 



Hume v. New York 
Humes v. Mayor, &c. 

v. Tabor 
Humphries v. Brogden 
Hunsaker v. Wright 
Hunscom v. Hunscom 
Hunt v. Bennett 
v. Lucas 



144, 
187 
249 
207 
304 
573 
126, 515 
477 
431, 437, 464 
362 



Hunt's Lessee v. McMahon 387 

Hunter, Ex parte 263 

v. Cobb 484 

Huntsville v. Phelps 202 

Huntzinger v. Brock 286 

Hurley v. Van Wagner 614 

Hurst v. Smith 348 

Huse v. Merriam 520 

Hutcheson v. Peck 339 

Hutson v. New York 247 

Hyatt v. Bates 47 

v. Roundout 248, 249 

v. Taylor 54 

Hyde v. Brush 601 

v. Melvin 615 

v. White 152 

Hydes v. Joyes 205 



I. 



Igoe v. State 146 

Illinois Central R.R. Co. v. Ar- 
nold 579 
Illinois Conference Female College 

v. Cooper 198 

Illinois & Michigan Canal v. Chi- 
cago & R. I. R.R. Co. 282 
Illinois, &c., Co. v. Peoria, &c, 

Association 592 

Imlay v. Union Branch R.R. Co. 548, 

551 
Indiana Central R.R. Co. v. Potts 82, 
143, 144, 149 
Indianapolis, &c, R.R. Co. v. 

Kercheval 283, 572, 575, 578, 579 
Indianapolis, &c, R.R. Co. v. Town- 
send 578, 579 
Ingalls v. Cole 56 
Inge v. Police Jury 532 
Inglee v. Coolidge 12 
Inglis v. Sailor's Snug Harbor 13 
Ingraham v. Regan 52 
Inhabitants of Springfield v. Con- 
necticut River R.R. Co. 526, 545, 547 
Inman v. Foster 455 
Insurance Co. v. Ritchie 381 
v. Yard 515 
Intendant of Greensboro v. Mullins 200 
Ireland v . Turnpike Co. 163, 292 
Iron R.R. Co. v. Ironton 53S 



J. 

Jack v. Thompson 402 

Jackoway v. Denton 33, 289 

Jackson, Matter of 343, 344 



XXXVI 



TABLE OF CASES CITED. 



Jackson v. Butler 289 

v. Chew 13 

v. Commonwealth 317, 318 
v. Hathaway 558 

v. Jackson 401, 405 

v. Lyon 361 

v. Munson 262 

v. Rutland & B. R.R. 

Co. 558, 579 

v. Shawl 129 

v. Vedder 49 

v. Walker 615 

v. Winn's Heirs 560 

v. Young 78 

Jacob v. Louisville 569 

Jacobs v. Cone 318 

v. Fyler 422 

v. Smallwood 291 

James v. Commonwealth 18 

v. Reynolds 354 

v. Stall 290 

Jameson v. People 197 

Jane v. Commonwealth 18 

Janson v. Stewart 423 

Jarvis v. Hatheway 442 

Jefferson Branch Bank v. Skelley 14, 

33, 126 
Jefferson City v. Courtmire 200 

Jeffersonville, &c., R.R. Co. v. 

Nichols 579 

Jeffersonville, &c, R.R. Co. v. 

Parkhurst 579 

Jeffries v. Ankeny 394, 616 

v. Williams 573 

Jenkins v. Andover 213 

v. Hill 620 

Jennings v. Paine 441, 444 

v. Stafford 406 

Jerome v. Ross 526 

Jett v. Commonwealth 18 

Joannes v. Bennett 425, 426 

John v. C. R. & F. W. R.R. Co. 119 

John & Cherry Streets, Matter of 357, 

530 
Johnson v. Atlantic, &c., R.R. Co. 526 
v. Bentley 374 

v. Bond 289 

v. Campbell 226, 381 

v. Common Council 217 

v. Commonwealth 167 

v. Higgins 147, 187, 285, 291 
v. Joliet & Chicago R.R. 

Co. 72, 128, 186 



v. Jones 

j;. Philadelphia 

v. Rich 

v. Riley 

v. Stack 



195, 201 



362 
202 
123 
15 
119 



Johnson v. Stark County 

Johnstone v. Sutton 

Joliet & Northern Indiana R.R 

Co. v. Jones 
Jolly v. Terre Haute Drawbridge 



Co 
Jones v. Boston 
v. Carter 
v. Cavins 
v. Columbus 
v. Fletcher 
v. Galena, &c 
v. Harris 
v. Hutchinson 
v. Jones 

v. Keep's Estate 
v. New Haven 
v. People 
v. Perry 
v. Richmond 
v. Robbins 
v. State 
Jordan v. Woodward 
Journeay v. Gibson 
Joy v. Thompson 
Joyner v. School District 
Judson v. Bridgeport 
v. Reardon 



K. 



26, 
506, 



R.R. Co. 



135, 



247, 



92, 104, 

191, 211, 

179, 



377, 



201, 



219 
442 

579 

592 

512 
387 
156 
146 
304 
579 
477 
154 
113 
483 
252 
582 
353 
593 
410 
602 
536 
379 
293 
520 
528 
339 



Kaine, Matter of 




347 


Kane v. Baltimore 




532 


v. Cook 




16 


v. People 




329 


Karney v. Paisley 




366 


Kavanaugh v. Brooklyn 




254 


Kayser v. Bremen 




254 


Kean v. McLaughlin 




442 


v. Stetson 




590 


Kearney, Ex -parte 




347 


v. Taylor 




371 


Keasy v. Louisville 




207 


Keen v. State 


267, 


273 


Keene v. Clarke 




12 


Keith v. Ware 




361 


Keller v. State 




146 


Kelley v. Corson 


521 


522 


v. Marshall 


212, 228 


494 


v. McCarthy 




361 


v. Partington 




424 


v. Pike 




47 


v. Sherlock 




440 


v. Tinling 




440 


Kellogg, Ex parte 


348, 408, 


409 


v. Oshkosh 




125 


v. Union Co. 




592 



TABLE OP CASES CITED. 



XXXV11 



Kelsey v. King 

Kemp, In re 

Kemper v. McClelland 520, 

Kendall v. Dodge 

v. Kingston 40, 182, 366, 
v. United States 
Kendillon v. Maltby 
Kennedy, In re 

v. Phelps 
Kennett's Petition 541, 

Kentucky v. Dennison 
Kenyon v. Stewart 
Kermott v. Ayer 
Kern v. Kitchen 
Kerr, Matter of, 
v. Kerr 
v. Union Bank 
Kershaw v. Bailey 
Kerwhacker v. Cleveland, C. & C. 

R.R. Co. 
Ketcham v. Buffalo 
Kettering v. Jacksonville 254, 

Keyser v. Stansifer . 466, 

Kibbey v. Jones 
Kibby v. Cbetwood's Adm'ra 
Kidder v. Parkhurst 
Kilburn v. Woodworth 16, 

Kilham v. Ward 
Kimball v. Alcorn 
v. Kimball 
Kimble v. White Water Valley 

Canal 
Kincaid's Appeal 127, 206, 

Kine v. Sewall 

King v. Dedham Bank 91, 

v. Hunder 

v. Root 437, 438, 453, 455, 
v. Wilson 
King, The v. Abingdon 
v. Campbell 
v. Carlile 448, 

v. Carlisle 
v. Clewes 
v. Cooper 
v. Cox 

v. Creevy 448, 

v. I)e Manneville 
v. Dunn 
v. Ellis 
V. Enoch 
v. Fisher 
v. Fletcher 
v. Foxcroft 
v. Gardner 
v. Hagan 
v. Howes 

v. Inhabitants of Hard- 
wicke 



Page 








Page 


555 


King, The v. Inhabitants 


af Hips- 




319 




well 




74 


521 




v. Inhabitants 


of St. 




361 




Gregory 




74 


367 




V. Inhabitants 


of Wo- 




19 




burn 




243 


434 




v. Kingston 




316 


287 




v. Lewis 




313 


584 




v. Locksdale 




74 


542 




v. Mayor of Stratford- 




15 




upon-Avon 


197 


286 




v. Partridge 




314 


23 




v. Richards 




316 


105 




v. Rivers 




313 


281 




v. Simpson 




314 


402 




v. Smith 




313 


47 




v. St. Olave's 




600 


434 




v. Sutton 
v. Taylor 




96 

472 


544 




v. Thomas 




316 


193 




v. Tubbs 




299 


581 




v. Waddington 


472 


475 


467 




v. Walkley 




316 


287 




v. Webb 




313 


103 




V. Withers 




619 


442 




». Woolston 


472 


474 


404 




v. Wright 




459 


616 




v. Younger 




50 


255 


Kingsbury's Case 




15 


401 


Kingsley v. Cousins 




293 




Kinney 


v. Beverley 




353 


564 


Kinsworthy v. Mitchell 




520 


595 


Kip v. Patterson 




201 


442 


Kirby v 


Shaw 173, 230, 232, 


479 


279 


Kirk v. 


Lowell 




205 


277 


v. 


State 




319 


464 


Klinch v 


. Colby 




425 


14 


Knapp i 


. Grant 




232 


457 


Kneass's 


Appeal 




105 


424 


Kneeland v. Milwaukee 


50, 53, 


73, 


472 








515 


448 


Knifer v 


. Louisville 




195 


316 


Knight v. Gibbs 




424 


316 


Knoop i 


. Piqua Bank 




280 


50 


Knowles 


v. People 


317, 


394 


458 




v. Yeates 




619 


348 


Knowlton v. Supervisors o 


f Rock 




316 


Co. 




■501, 


515 


313 


Knox v. 


Chaloner 


589, 


590 


314 


v. 


Cleveland 




365 


449 


Knox C 


a. v. Aspinwall 


119, 


216 


329 




v. Wallace 




119 


619 


Kohlheimer v. State 




327 


252 


Kraft v . 


Wickey 




405 


318 


Kramer 


v. Cleveland & P 


R.R. 




316 


Co. 




527, 


530 




Kuckler 


v. People 




272 


243 


Kuhn v. 


Board of Education 


192 



xxxvm 



TABLE OF CASES CITED. 



Kunkle v. Franklin 
Kyle v. Malin 



Page 
379 
195 



L. 



Lackland v. North Missouri R.R. 

Co. 191, 195, 544, 545 

Lacour v. New York 254 

Lacey v. Davis 367, 521 

Ladd v. Adams 288 

La?fon v. Dufoe 146 

La Favette v. Bush 206, 542 

v. Cox 193, 194, 215 

v. Fowler 206, 507 

v. Jenners 182 

v. Orphan Asylum 514 

La Favette Plank Road Co. v. New 

Albany & Salem R.R. Co. 542 

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

Geiger 68, 119 

Lake Erie, &c, R.R. Co. v. Heath 410 

Lakeman v. Burnham 523 

Lamb v. Lane 562 

v. Lynd 133 

Lambertson v. Hogan 94 

Landon v. Litchfield 280 

Lane v. Dorman 104, 182, 353 

v. Vick 14 

Langdon v. Applegate 52, 151 

Langford v. Ramsay Co. 560 

Langworthy v. Dubuque 192, 501 

Lanier v. Gallatas 96, 613, 619 

Lanning v. Carpenter 255, 616 

Lansing v. Lansing 615 

v. Smith 542, 543 

v. Stone 23 

v. Van Gorder 196 

Lanzetti, Succession of 146 

La Plaisance Bay Harbor Co. v. 

Monroe 26 

Larkin v. Saginaw Co. 208 

Lathrop v. Mills 177 

Latless v. Holmes 155 

Lauer v. State 147 

Laval v. Myers 615 

Law, Ex parte 262, 263 

Lawler v. Earle 426 

Lawrence, In re 359 

v. Great Northern R.R. 

Co. 564 

Lawrenceburg v. Wuest 200 

Lawyer v. Clifferlv 466, 467 

Lay ton v. New Orleans 193, 230, 233 
Lea v. Lea 47 

Leach v. Money 307 

League v. Egery 13 

v. Journeay 595 



Leavenworth v. Norton 195 

v. Rankin 217 

Leavenworth Co. v. Miller 119, 210 

Lebanon v. Olcott 537 

Le Bois v. Bramel 379 

Le Claire v. Davenport 596 

Lee v. Sandy Hill 247 

v. State 37, 325 

v. Tillotson 181 

Leefe, Matter of 412 

Le Fever v. Detroit 499, 514 

Leffingwell v. Warren 13, 14, 364, 365, 

366 

Leggett v. Hunter 88, 103 

Lehman v. McBride 151, 599 

Leith v. Leith 401 

Leland v. Wilkinson 92 

Lemmon v. People 15 

Lenz v. Charlton 356, 368 

Leonard v. Wiseman 57 

Le Seur v. State 272 

Leslie v. State 328 

Lester v. State 327 

Levins v. Sleator 109, 113 

Levy v. State 198, 200 

Lewis v. Chapman 425, 426 

v. Clements 448 

v. Few 436 

v. Garrett's Administrator 402 

v. Levy 448, 449 

v. Lewis 292 

v. McElvain 361, 374 

v. Walter 448 

v. Webb 96, 109, 168, 365, 391 

Lexington v. Long 567, 568 

v. McQuillan's Heirs 498, 

508 

Libby v. Burnham 521 

License Cases 1, 486, 573, 581, 582, 

584, 595 

License Tax Cases 170, 573, 584 

Life Association v. Assessors 75 

Lincoln v. Hapgood 600, 616 

v. Smith 18, 410, 581, 582 

v. Tower 16 

Lindenmuller v. People 587, 596 

Lindsay v. Commissioners 160 

Lindsey v. Coats 23 

v. Smith 423 

Linford v. Fitchroy 310 

Linney v. Malton 423 

Lin Sing v. Washburn 391, 486, 503, 

586 

Linton v. Stanton • 13 

Litchfield v. McComber 286 

v. Vernon 488 

Little v. Fitts 397 

v. Smith 52 



TABLE OF CASES CITED. 



XXXIX 



Page 
Little Miami R.R. v. Collett 568 

Littleton v. Richardson 402 

Live Stock, &c, Association v. 
Crescent City, &c, Co. 11, 294, 

573, 584 
Livingston v. New York 4 ( J8, 510 

Livingston's Lessee v. Moore 18 

Lloyd v. New York 248, 252, 253 

Lobrano v. Nelligan 103 

Locke v. Dane 266, 371 

Lockwood o. St. Louis 514 

Loeb v. Mathis 53 

Logue v. Commonwealth 307 

Londonderry v. Andover 197 

Long v. Fuller 560 

Long's Case 314 

Longworth v. Worthington 387 

Loomis v. Wadhams 409 

Lord v. Chadbourne 361 

v. Litchfield 280, 383 

Lorillard v. Monroe 246 

Lorman v. Benson 23, 589 

v. Clarke 19 

Loughbrid^e v. Harris 536 

Louisiana State Lottery v. Richoux 135 
Louisville v. Commonwealth 252 

v. Rolling Mill Co. 207 

v. University 239 

Louisville, &c, Co. v. Ballard 147 

Louisville, &c, R.R. Co. v. Burke 581 
Louisville, &c, R.R. Co. U.David- 
son 119, 616 
Louisville & Nashville R.R. Co. v. 

County Court 616 

Louisville & Nashville R.R. Co. v. 

Thompson 569 

Louisville City R.R. Co. u. Louis- 
ville 206, 208 
Love. v. Moynahan 339 
v. Shartzer 389 
Lovingston v. Wider 233, 491 
Low v. Galena & Chicago U. R.R. 

Co. 541 

Lowe v. Commonwealth 277 

Lowell v. Boston 175, 215 

v. Hadley 78, 588 

v. Oliver 222, 223 

Lowenburg v. People 329 

Lowry v. Francis 275 

Lucas v. Sawver 361 

v. Tucker 372 

Ludlow v. Jackson 361 

Ludlow's Heirs v. Johnson 56 

Lumsden v: Cross 367, 499, 507 

Lunt's Case 168 

Lusher v. Scites 186 

Luther v. Borden 30 

Lyle v. Richards 23 



Lyman v. Boston & Worcester 

R.R. Co. 579 

v. Mower 361 

Lynch v. State 323, 335, 336 

Lyon v. Jerome 205, 526, 538, 560 

v. Lyon 402 



M. 



Machir v. Moore 615 

Mackaboy v. Commonwealth 408 

Mackay v. Ford 443 

Macon v. Macon & Western R.R. 

Co. 195 

Macon & Western R.R. Co. v. 

Davis 168, 182 

Macready v. Wolcott 340 

Macy v. Indianapolis 542 

Madison & Ind. R.R. Co. v. Nor- 
wich Savings Society 216 
Madison & Ind. R.R. Co. v. 

Whiteneck 146, 168, 578 

Madox v. Graham 47 

Magee v. Commonwealth 507 

v. Supervisors 623 

Magruder, Ex parte 263 

Maguire v. Maguire 284, 402, 404, 405 
Mahala v. State 327 

Maher v. People 307, 317, 325 

Mahon v. New York Central R.R. 

Co. 547 

Mahoney v. Bank of the State 198 

Maiden v. Ingersoll 11 

Maize v. State 117, 124, 168, 178 

Malone v. Clark 409 

v. Stewart 423 

Maloy v. Marietta 41, 499, 506, 518, 

519 
Maltas v. Shields 491 

Mauley v. Manley 402, 404 

Manly v. State ' 57, 58, 66. 

Mansfield v. Mclntvre 402, 404 

Mansfield, &c, R.R. Co. v. Clark 537 
Mapes v. Weeks 455 

Marbury v. Madison - 46 

March v. Commonwealth 198 

v. Portsmouth, &c, R.R. 

Co. 526 

Marchant v. Langworthy 78 

Marietta v. Fearing 202, 277 

Marion v. Epler 499, 506 

Mark v. State 156, 187 

Marks v. Pardue University 213, 230, 

493 
Marlatt v. Silk 13 

Marlow v. Adams 389 



xl 



TABLE OP CASES CITED. 



Marsh v. Chestnut 75, 76 

v. New York & Erie R.R. 

Co. 579 

v. Putnam 294 

v. Supervisors of Fulton 

Co. 217 

Marshall v. Baltimore & Ohio R.R. 
Co. 



Grimes 

Harwood 

Kerns 



137 

185 

134 

616, 622, 625 



Marshall Co. Court v. Calloway 



Co. Court 
Martin v. Broach 

v. Brooklyn 

v. Hunter's Lessee 



v. Martin 

v. Mott 

v. Van Schaick 

v. Waddell 

v. Wade 
Martin's Appeal 
Mason, Matter of 

v. Haile 

v. Kennebeck, &c, R.R. 

Co. 564, 570 

v. Messenger 403 

v. Wait 88, 104 

Mather v. Chapman 372, 381 

v. Hood 408 

Mathews v. Beach 449 

Matter of Election Law 614 



193 
146 

248, 254 
9, 11, 12, 
18, 68, 89 
365 
41 
455 
13 
137 
105 
348 
287, 289 



Maul v. State 




267 


Maurer v. People 




318 


Maxey V. Loyal 


287 


,288 


v. Wise 




376 


Maxwell v. Newbold 




12 


May v. Holdredge 




379 


Mayberry v. Kelly 




163 


Mayer, Ex parte 




383 


Maynes v. Moore 




286 


Mayo v. Freeland 




621 


v. Wilson 




23 


Mayor v. Sheffield 




253 


Mayor, &c. v. Medbury 




588 


Mayor of Annapolis v. State 




144 


Mayor of Hull v. Horner 




197 


Mayor of London's Case 




344 


Mayor of Lyme v. Turner 


247 


252 


Major of Mobile v. Dargan 


21, 


493, 
499 


Mayor of Wetumpka v. Winter 


119 


Mayrant v. Richardson 




441 


Mays v. Cincinnati 191, 198, 


201 


518 


McAdoo v. Benbow 




57 


McAffee's Heirs v. Kennedy 




536 


McAllister v. Hoffman 




615 



McAurich v. Mississippi, &c, R.R. 
Co. 129, 

McBrayer v. Hill 
McBride v. Chicago 
McCafferty v. Guyer 64, 

McCann v. Sierra Co. 
McCardle, Ex parte 94, 187, 381, 
McCarthy v. Hoffman 
McCauley v. Brooks 
McClaughry v. Wetmore 
McCloud v. Selby 
McClure v. Owen 
McCluskey v. Cromwell 
McCollum, Ex parte 
McComb v. Akron 207, 

v. Bell 
v. Gilkey 
McConkle v. Bliss 
McCool v. Smith 

McCormick v. Rusch 292, 

McCoy v. Grandy 

v. Huffman 

v. Michew 
McCracken v. Hayward 284, 286, 

McCready v'. Sexton 
McCulloch v. Maryland 11, 18 

479, 480, 
v. State 81, 135, 140, 



McDaniel v. Correll 107, 

McDermott's Appeal 

McDonald v. Redwing 526, 

McDonough v. Millaudon 

McElvain v. Mudd 

McFadden v. Commonwealth 

McFarland v. Butler 289, 

McGatrick v. Wason 

McGear v. Woodruff 

MeGee v. Mathis 

McGehee v. Mathis 498, 

McGiffert v. McGiffert 401, 

McGinnis v. Watson 466, 

McGinity v. New York 

McGlinchy v. Barrows 

McGowen v. State 

McGuffie v. State 320, 

McKee v. McKee 190, 

v. People 

v. Wilcox 
McKeen v. Delancy's Lessee 
McKenzie v. State 
McKim v. Odorn 

v. Weller 
McKinney v. Carroll 

v. O'Connor 613, 

v. Springer 
McKune v Weller 



147 
423 
498 
263 
560 
383 
379 
289 
442 
245 
215 
56 
182 
542 
503 
103 
464 
151 
361 
389 
339 
370 
288, 
289 
368 
,63, 
482 
177, 
187 
382 
402 
594 
12 
484 
325 
362 
476 
319 
498 
512 
402 
467 
249 
304 
323 
322 
588 
328 
61 
13 
309 
192 
78 
12 
618 
365 
602 



TABLE OF CASES CITED. 



xli 



Page 
McLawrine v. Monroe 16 

McLean v. Hugarin 47 

MeLeod's Case 346 

McManus v. Carmichael 589 

McMillan v. Birch 443 

v. Lee County 193 

v. McNiell " 18, 294 

McMillen v. Boyles 119,379 

McMinn v. Whelan 522 

McMullen v. Hodge 33, 73 

McPherson v. Leonai'd 

v. State 
McReynolds v. Smallbouse 
McSpeddon v. New York 
Meacham v. Dow 

v. Fitchburg R.R. Co. 
Mead v. Beal 

v. McGraw 
v. Walker 
Meagher v. Storey County 
Mears v. Commissioners of Wil 

mington 
Mechanics, &c, Bank Appeal 
Mechanics & Farmers 1 Bank 

Smith 
Mechanics & Traders 1 

Debolt 
Mechanics & Traders' 

Thomas 
Meddock v. Williams 
Medford v. Learned 
Meeker v. Van Rensselaer 
Meighen v. Strong 
Melizet's Appeal 
Mellenr. Western R.R. Corp. 
Memphis v. Winfield 
Memphis & Charleston R.R. Co 

v. Payne 
Mendota v. Thompson 
Menges v. Westman 371, 372, 375 

Mercer v. McWilliams 560 

Merchants 1 Bank v. Cook 243 

Merrick v. Amherst 213, 230, 493 

Merrill v. Plainfield 211,212 

v. Sherburne 92, 96, 358 

Merritt v. Farris 515 

Merwin v. Ballard 62, 370 

Meshmeier v. State 117, 124, 178, 186, 

582, 583 
Methodist E. Church v. Wood 467 

Metropolitan Board of Excise v. 

Barrie 283, 383, 581, 584 

Metropolitan Board of Excise v. 

Heister 584 

Metzger, Matter of 317, 348 

Mewherter v. Price 146, 149 

Meyer v. Muscatine 215 

Miami Coal Co. v. Wigton 530 



323 
592 
212 
615 
569 
14 
53 
410 
187 

247 
286 

202 

Bank v. 

126, 280 

Bank v. 

280 
377 
369 
584, 594 
379 
113 
542 
200 

562 

254 



Michigan State Bank v. Hastings 279 
Milan, &c, Plank Road Co. v. 

Husted 280 

Milburn, Ex parte 347 

v. Cedar Rapids, &c, 

R.R. Co. 553 

Miles v. Caldwell 14 

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

545 
Miller v. Craig 595 

v. English 467 

v. Gable 466 

v. Graham 381, 382 

v. Grandy 228, 490 

v. Miller 360 



v. New York & Erie 

Co. 
v. Nichols 
v. Parish 
v. State 80, 96, 135, 



v. State (8 Gill) 

v. Troost 
Miller's Case 
Miller's Ex'r v. Miller 
Millholand v. Bryant 
Milligan, Ex parte 
Mills, Matter of 
v. Brooklyn 



R.R. 

576, 



139, 
168 



308 



247, 



, 252 
v. Charleton 147, 191, 232, 



193 



v. Duryea 
v. Gleason 
v. Jefferson 
v. St. Clair Countv 
v. Williams 192, 277, 279 
Milwaukee v. Gross 
Milwaukee Gas Light Co. v. 

Steamer Gamecock 
Milwaukee Town v. Milwaukee 

City 
Miners 1 Bank v. Iowa 

v. United States 106 
Minor v. Board of Education 
Mississippi Society v. Musgrove 
Mitchell v. Burlington 
v. Deeds 
v . Harmony 
v. Williams 
Mitchell's Case 
Mithoff v. Carrollton 
Moberly v. Preston 
Mobile v. Allaire 
v. Rouse 
v. Yuille 
Mobile & Ohio R.R. Co 



371, 
530, 



198, 



Moers v. Reading 



201, 202, 
v. State 
163, 177, 
68, 



578 
12 
423 
149, 
327 
96 
536 
460 
404 
605 
319 
337 
254 
381, 
489 
16 
521 
157 
396 
280 
584 

26 

193 
25 
279 
469 
279 
215 
373 
594 
595 
334 
532 
423 
200 
2C0 
596 
152, 
181 
119 



xlii 



TABLE OP CASES CITED. 



Mohawk Bridge Co. v. Utica & 

Schenectady R.R. Co. 396 

Mohawk & Hudson R.R. Co., 

Matter of 78 

Monell v. Dickey 405 

Money v. Leach 302 

Monongahela Navigation Co. v. 

Coons 541, 543 

Monopolies, Case of 393 

Monroe v. Collins 64, 394, 599,602, 616 

Montee v. Commonwealth 323 

Montgomery v. Kasson 275, 284 

v. Meredith 370 

v. State 323, 463 

Montpelier v. East Montpelier 192, 

193, 239, 279 

Montpelier Academy v. George 192, 

193 

Moodalay v. East India Co. 251 

Moon v. Durden 62 

Moore, Matter of 337 

v. Detroit Locomotive 

Works 397 

v. Houston 168 

v. Lisce 865 

v. Maxwell 103 

v. Meagher 424 

v. Moore 484 

v. New York 361 

v. People 18, 200 

v. Quirk 484 

15. Sanborne 589, 590 

v. Smaw 523 

v. State 310 

Moreau v. Detchamendy 14 

Morehead v. State 314 

Morev v. Brown 595 

" v. Newfane 246, 248 

Morford v. Barnes 410 

v. Unger 118, 144, 146, 155, 

382, 488, 494, 500 

Morgan v. Buffington 115 

v. Dudley 616 

v. King 23, 557, 589, 590, 591 

v. Livingston 422 

v. Plumb 47 

v. Quaekenbush 621, 624 

v. Smith 127 

v. State 318 

Morril v. Haines 618 

Morris v. Barkley 423 

v. People 168, 182 

v. State 328 

Morris Canal & Banking Co. v. 

Fisher 216 

Morris & Essex R.R. Co. v. New- 
ark 547 
Morrissey v. People 127 



Morrison v. Springer 


168, 


599 


Morse v. Goold 


286, 


287 


Morton, Matter of 




305 


v. Sharkey 


365, 


366 


v. Valentine 




288 


Mose v. State 




318 


Moseley v. State 




327 



Moses v. Pittsburg, Fort Wayne, 

& C. R.R. Co. 553 

Moses Taylor, The v. Hammons 18 
Mosier v. Hilton 147 

Mott v. Pennsylvania R.R. Co. 126, 

127, 280 
Moulton v. Raymond 489 

Mount v. Commonwealth 327 

Mount Carmel v. Wabash Co. 193 

Mount Pleasant v. Breeze 195 

Mount Washington Road Co.'s 

Petition 537, 562, 569, 570 

Mounts v. State 325, 327 

Mower v. Leicester 244, 246 

v. Watson 422, 442, 444 

Mundy v. Monroe 180, 290 

Munger v. Tonawanda R.R. Co. 558 
Municipality v. Blanc 588 

v. Cutting 596 

v. Wheeler 266 

v. White 499, 509 

Munn v. Pittsburg 253 

Munson v. Hungerford 589 

Murphey v. Menard . 146 

Murphy, Ex parte 620 

In re 56, 266 

v. Chicago 206, 542 

v. Commonwealth 319 

v. State 335 

Murray v. Commissioners of Berk- 
shire 545, 551 
v. McCarty 15 
v. Menifee 541, 544 
v. Sharp 544 
Murray's Lessee v. Hoboken Land 

Co. 352, 402 

Murtaugh v. St. Louis 208, 248 

Musselman v. Logansport 371 

Mutual Assurance Co. v. Watts 13 

Myers v. English 168 

v. Johnson County 215 

v. Manhattan Bank 26 

Mygatt v. Washburn 499 

Myrick v. Hasey 52 

v. La Crosse 521 



N. 

National Bank v. Commonwealth 482 
Nations v. Johnson 402, 403 



TABLE OF CASES CITED. 



xliii 



Naylor v. Field 




151 


Neaderhouser v. State 




593 


Neal v. Green 




14 


Neass v. Mercer 




288 


Nebraska v. Campbell 




247 


Neifing v. Pontiac 




147 


Neill v. Keese 




397 


Nels v. State 




323 


Nelson v. Allen 


50, 51 


389 


v. Milford 


209 


211 


v. Kountree 




382 


v. State 




323 


Nesbitt v. Trumbo 




530 


Nesmith v. Sheldon 




14 



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

O'Daily 543, 552 

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

Maiden 578 

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

McNamara 578 

New Albany & Salem R R. Co. v. 

Tilton 572, 578, 581 

Newberry v. Trowbridge 47 

New Boston v. Dunbarton 197 

Newby v. Platte County 568, 569 

Newby's Adm'r v. Blakey 365 

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

& Indiana R.R. Co. 526 

Newcomb v. Peck 16 

v. Smith 536 

Newcum v. Kirtley 620, 623 

Newell v. Newton 404 

v. People 54, 56, 57 

v. Smith 536 

v. Wheeler 522 

New Jersey v. Wilson 126, 280 

Newland v. Marsh 90, 168, 182, 185 

New London v. Brainerd 193, 211 

Newman, Ex parte 168, 187 

New Orleans v. De Armas 12 

v. Poutz 266 

v. Southern Bank 151 

v. St. Rowe's 78 

v. Turpin 190 

New York, Matter of 498, 514 

v. Bailey 254 

v. Furze 247 

v. Hyatt 200 

v. Kerr 552 

v. Lord 594 

v. Miln 486, 587 

v. Nichols 198, 200, 202 

v. Ryan 190 

V. Second Avenue R.R. 

Co. 201, 206 

N. F. Screw Co. v. Bliven 14 

N. Y. & Harlaem R.R. Co. v. Kip 530, 

531 



N. Y. & Harlaem R.R. Co. v. New 

York 208, 545 

Nichol v. Nashville 119 

Nichols, Matter of 287 

v. Bertram 279 

v. Bridgeport 498, 528, 568, 570 

v. Guy 422 

. v. Mudgett 615 

v. Somerset, &c, R. R. 

Co. 560 

Nicholson v. N. Y. & N. Haven 

R.R. Co. 549, 568 

Nickerson v. Howard 340 

Nicolls v. Ingersol 341 

Nightingale v. Bridges 358 

Nightingale's Case 596 

Noel v. Ewing 113, 361 

Nolin v. Franklin 596 

Norman v. Herst 359, 379 

Norris v. Abingdon Academy 168, 279 

v. Beyea 361, 369 

v. Boston 177 

v. Clymer 68, 103 

v. Crocker 381 

v. Doniphan 361, 363 

v. Harris 23 

v. Newton 346 

v. Vermont Central R. R. 

Co. 526, 542 

Norristown, &c, Co. v. Burket 410 
Northern Indiana R.R. Co. v. Con- 
nelly 497, 499, 506, 507, 518 
Northern Liberties v. St. John's 

Church 499 

North Hempstead v. Hempstead 198, 

212 
North Missouri R.R. Co. v. Gott 538 
v. Lack- 
land 538 
v. Maguire 
18, 280 
Norton v. Pettibone 372 

Norwich v. County Commissioners 168, 

182 
Norwich Gas Co. v. Norwich City 

Gas Co. 393 

Norwood v. Cobb 16 

Noyes v. Butler 16 

Nugent v. State . 327 

Nunn v. State 350 



o. 

Oakland v. Carpentier 205 

Oakley v. Aspinwall 72, 412 

Oatman v. Bond 289 



xliv 



TABLE OP CASES CITED. 



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

Co. 366, 579 

O'Brien v. Commonwealth 325 

O'Conner v. Warner 94 

O'Connor v. Pittsburg 206, 542, 570 

O'Donaghue v. McGovern 434 

O'Donnell v. Bailey 280 

O'Farrell v. Colby 621 

Officer v. Young 370, 392 

Ogden v. Blackledge 92, 94 

v. Saunders 61, 68, 182, 266. 

284, 285, 286, 288, 293, 

294, 366, 367 

v. Strong 54, 57 

O'Hara v. Carpenter 223 

Ohio, &c, R.R. Co. v. Ridge 214 

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

plegate 555 

Ohio & Mississippi R.R. Co. v. Mc- 
Clelland 283, 572, 578, 580, 581 
Ohio Life Ins. & Trust Co. v. De- 
bolt 126, 280 
O'Kane v. Treat 503, 515 
O'Kelly v. Athens Manufac. Co. 362 
Oldknow v. Wainwright 619 
O'Leary v. Cook County 147 
Oliver v. Washington Mills 396, 487, 

494 
Oliver, Lee, & Co.'s Bank, Matter 

of 33, 37, 63 

Ohnstead v. Camp 536, 537 

Olmsted v. Miller 424 

Olney v. Harvey 192 

One House v. State 582 

Onslow v. Hone 438 

Opinions of Judges (18 Pick.) 29 

(52 Me.) 222 

(30 Conn.) 599 

(6 Cush.) 30 

(44 X. H.) 599 

(41N.H.)319,410 

(6 Shep.) 79, 82 

(38 Me.) 610, 620 

(3 R. I.) 94 

(4 N. H.) 101 

(45N.H.)152,599 

(37 Vt.) 599 

(16 Me.) 113 

(99 Mass.) . 153 

(7 Mass.) 602 

(49 Mo.) 40, 42 

(58 Me.) 175, 489 

(15 Mass.) 602 

Oriental Bank v. Freeze 361, 383 

Ormichund v. Barker 477 

Ormond v. Martin 389 

Orphan House v. Lawrence 49 

Ortman v. Greenman 168 



Orton v. Noonan 


377, 


388 


Osborn v. Hart 


357, 


530 


V. Jaines 




366 


v. Mobile 




486 


v. Nicholson 


285, 


289 


v. State 




319 


Osborne v. Humphrey 




280 


v. Jaines 




366 


v . United States Bank 


482 


Overstreet v. Brown 




397 


Oviatt v. Pond 




582 


Owen v. State 




350 


O wings v. Norwood's Lessee 


11 


, 12 


Owners of Ground v. Albany 




533 



Owners of the James Gray v. Own- 
ers of the John Frazer 



586 



Pacific R.R. Co. v. Chrj 


stal 


568, 


569 


Packet Co. v. Sickles 






47 


Pacquette v. Pickness 






387 


Padmore v. Lawrence 




442, 


444 


Page, Ex parte 






329 


v. Allen 






601 


v. Fazackerly 






596 


v. Fowler 






47 


v. Hardin 






363 


Paine's Case 






426 


Palairet's Appeal 






285 


Palmer v. Commissioners of 


Cuy- 




ahoga Co. 




26, 


592 


v. Concord 


424 


451, 


454 


v. Lawrence 






50 


v. Napoleon 






521 


v. Stumph 




499 


507 


Palmer Co. v. Ferrill 






569 


Parish v. Eager 






365 


Parker v. Bidwell 






341 


v. Commonwealth 117 


123, 


124 


v. Culter Mill-da 


tn Co 




593 


v. Kane 






14 


v. Phetteplace 






14 


v. Redfield 






280 


v. Sunbury & Erie R.R. 




Co. 






394 


Parkins's Case 






331 


Parkinson v. State 




57 


146 


Parks v. Boston 




567, 


568 


v. Goodwin 






78 


Parmele v. Thompson 






96 


Parmelee v. Lawrence 


362, 


372, 


375, 
376 


Parmiter v. Coupland 






463 


Parsons v. Casey 






286 


v. Goshen 






212 


v. Howe 






529 



TABLE OF CASES CITED. 



xlv 



Parsons v. Russell 
Paschal V. Perez 

v. Whitsett 
Passenger Cases 
Patten v. People 



Page 

352 
286 
361 
573, 586 
307 



Paterson City v. Society, &c. 118, 119, 

192 

Patterson v. Philbrook 301, 371, 381 

v. Wilkinson 423 

Pattison v. Jones 425 

v. Yuba 56, 119 

Paul v. Virginia 15 

Pawling v. Bird's Executors 16, 402 

v. Wilson 404 

Paxon v. Sweet 588 

Payne v. Tread well 239, 376 

v. Wright 14 

Pays on v. Pay son 401 

Pearce v. Atwood 411 

v. Olney 16 

v. Patton 865 

Pease v. Chicago 228 

v. Peck 14 

Peavey v. Robbing 616 

Peay v. Duncan 47 

Peck v. Batavia 248 

v. Freeholders of Essex 411 

v. Lockwood 202 

v. Weddell 117, 612 

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

Co. 547 

Pedrick v. Bailey 200 

Peerce v. Karskadon 262, 264 

Pekin v. Newell 253 

v. Reynolds 215 

Pemble v. Clifford 23 

Penhallow v. Doane's Administrator 6 
Peninsular R.R. Co. v. Howard 412 
Penn's Case 320 

Pennock v. Dialogue 52 

Pennsylvania R.R. Co. v. Canal 

Commissioners 394 

Pennsylvania R.R. Co. v. Com- 
monwealth 486 
Pennsylvania R.R. Co. v. Reiley 568, 

570 

v. Riblet 579, 

581 

Penrice v. Wallace 569 

Penrose v. Erie Canal Co. 286, 289 

People v. Alameda 230 

v. Allen 70, 78 

v. Asher 602 

v. Auditor-General 284 

v. Bacheller 175, 232, 239, 

491 

v. Banvard 277 

v. Barrett 327 



People v. Bates 606, 613, 618 

v. Bircham 115 

v. Blakeley 334 

v. Blodgett 54," 65, 183, 599 
v. Board of Education 391 

v. Bowen 153 

v. Brady 394 

v. Brenahm 603 

v. Briggs 144, 149, 177 

v. Brighton 528 

v. Brooklyn 232, 235, 479, 497, 
498, 504, 509, 511, 558, 560 
v. Bull 178, 276 

v. Burns 57 

v. Butler 273 

v. Campbell 81, 140 

v. Canal Appraisers 557 

v. Canty 233 

v. Cassells 348 

v. Chicago 175, 219, 232, 233, 
239 
v. Cicotte 51, 605, 606, 607, 
610, 611, 618, 619, 620, 
624, 625, 626, 627 
v. Clute 620 

v. Coleman 15, 52, 514 

v. Collins 117, 123 

V. Colman 514 

v. Commissioners (47 N. Y.) 

280 
v. Commissioners (4 Wall.) 

482 
v. Comstock 322 

v. Common Council of Chi- 
cago 233 
v. Common Council of De- 
troit 230, 233, 237, 252, 
255 
v. Cook (10 Mich.) 325, 327 
v. Cook (J4 Barb. & 8 N. 
Y.) 74, 606, 607, 609, 610, 
613, 618, 622, 623, 624 
v. Corning 322 
v. Cover 625 
v. Cowles 82, 603 
v. Croswell 323, 431, 432 
v. Daniel 89 
v. Dawell 16, 401, 402 
v. Dean • 394 
v. Denahy 149 
v. Devlin 153 
v. Dill 320 
i\ Doe 78 
v. Draper 46, 88, 170, 171, 187, 
190, 192, 572 
v. Dubois 277 
v. Fancher 82 
v. Ferguson 607, 609, 630 



xlvi 



TABLE OF CASES CITED. 



Pe 


aple v. Finnegan 




323 


People v. McCallum 


144, 151 




v. Fisher 




171 


v. McCann 


146, 147, 309 




v. Flagg 


215, 


230, 491, 494 


v. McCreery 


230 




v. Ford 




337 


v. McGowan 


325, 328 




v. Gallagher 




172, 173, 582 


v. McKay 


318 




v. Garbutt 




309, 325 


v. McMahon 


313, 316 




v. Gates 




484 


v. McManus 


606, 612, 618 




v. Gies 




65, 411 


v. McNealy 


327 




v. Gilbert 




366 


v. Medical Society of Erie 204 




v. Goodwin 


(18 Johns.) 327 


v. Mellen 


145, 147 




v. Goodwin 


(22 


Mich.) 623 


v. Mercein 


348 




v. Gordon 




616 


v. Merrill 


127 




v. Green 




560, 561 


v. Mitchell 


368, 381 




v. Hartwell 




78, 603, 619 


v. Molliter 


620 




v. Hascall 




276 


v. Morrell 


54. 88 




v. Hatch 




131, 154 


v. Morris 175, 


192, 237,251, 




v. Hawes 




233 




277 




v. Hawley 




582 


v. Murray 


181 




v. Hayden 




560 


v. Nearing 


533 




v. Hennessey 


314 


v. New York 


282, 524, 526, 




v. Herod 




201 




576, 593 




v. Higgins 


610 


618, 623, 625 


v. N. Y. Central R.R. Co. 




v. Hill 




177 


56, 58, 66, 


168, 173, 186 




v. Hilliard 




621 


v. Peace 


223 




v. Holden 




606, 625 


v. Pease 605, 


606, 610, 611, 




v. Holley 




78 


616, 621, 


626, 627, 629 




v. Hnrlbut 


37, 


175, 189, 191, 


v. Peck 


78 








230 


v. Phelps 


273 




v. Imlay 




15 


v. Phillips 


314 




v. Jackson 


& 


Michigan 


v. Pine 


323 




Plank R 


Co. 


279, 292, 576, 


v. Pinkey 


192 








577 


v. Piatt 


275 




V. Jenkins 




588, 593 


v. Porter 


314, 476, 602 




v. Jenness 




478 


v. Power 192 


230, 233, 278 




v. Jones 




621, 623 


v. Pritchard 


151 




v. Keenan 




335 


v. Purdy 


56, 79, 153 




v. Kemp 




322 


v. Raymond 


277 




v. Kent County Canvassers 613 


v. Reed 


593 




v. Kerr 


541 


550, 552, 555 


v. Robertson 


623 




v. Kilduff 




605, 621 


v. Rochester 


180 




v. Koeber 




406 


v. Roe 


588, 593 




v. Kopplekom 


601, 602 


v. Roper 


280, 383 




v. Lamb 




325 


v. Royal 


320 




v. Lambert 




314, 318 


v. Ruggles 


472, 473, 474 




v. Lambier 




396 


v. Runkel 


78 




v. Lawrence 


79 


, 82, 141, 146, 


v. Sackett 


625 






177 


186, 211, 212 


v. Salem 214, 


215, 393, 488, 




v. Loomis 




606 




493, 536 




v. Lothrop 




255 


v. Salomon 119, 


123, 125, 187, 




v. Lott 




402 




255, 616 




v. Mahaney 


133, 


134, 135, 142, 


v. Saxton 


606, 607 




144, 151, 


v. Schermerhorn 


75 








519 


v. Seaman 606 


607, 609, 623 




v. Manhattan Co 


279 


v. Seymour 


373 




v. Martin 




602 


v. Smith 


309, 310, 538 




v. Matteson 


606, 


612, 623, 624 


v. Springwells 


255, 491 




v. Maynard 


73 


197, 254, 616 


v. Starne 


82, 139 




v. Mayworm 




607 


v. State Auditors 


383 



TABLE OF CASES CITED. 



xlvii 



People v. Stevens 200 

v. Stewart 323 

r. Stout 117, 121 

v. Sullivan 226, 307 

v. Supervisor, &c. 219 

v. Supervisors, &c. 622 

v. Supervisors of Chenango 79, 
135, 382, 499 
v. Supervisors of Columbia 219, 
369 
v. Supervisors of Greene 623 
v. Supervisors of New 

York 91, 93, 94, 233 

v. Supervisors of Orange 88, 
168, 173, 185 
v. Supervisors of Saginaw 488 
v. Tallman 562 

v. Tazewell County 215 i 

v. Thayers 323 

v. Thomas 313, 317 

v. Thurber 15 

v. Tisdale 607, 609, 610 

v. Township Board of Sa- 
lem 214, 215, 393, 488, 
493, 536 
v. Toynbee 168, 173 

v. Turner 299 

v. Tyler (Mich.) 182, 327 

v. Tyler (Cal.) 317 

v. Vail 623 

v. Van Cleve 621, 623, 625 
v. Van Eps 402 

v. Van Home 309 

v. Van Slyck 621, 623 

v. Videto 323 

v. Webb 325, 328 

v. Whyler 512 

v. Williams 128 

Peoria v. Calhoun 205 

v. Kidder 498, 506 

Peoria County v. Harvey 563 

Percy, In re 337 

Perine v. Chesapeake & Delaware 

Canal Co. 394 

v. Farr 406 

Perkins v. Corbin 276 

v. Lewis 219 

v. Milford 228 

v. Mitchell 441 

v. Perkins 119, 370 

Perry's Case 266, 478 

Persons v. Jones 49 

Peru v. French 247 

Pe'sterfield v. Vickers 198 

Peters v. Iron Mountain R.R. Co. 575, 

581 
Petersburg v. Metzker 198 

Peterson v. Lothrop 49 



Pettibone v. La Crosse & Mil- 
waukee R.R. Co. 564 
Pcttigrew v. Janesville 526 
Petty v. Tooker 467 
Phaiis v. Dice 290 
Phelps v. Goldthwaite 612 
Philadelphia v. Commonwealth 402 
v. Dickson 563 
v. Dver 563 
v. Fox 192 
v. Try on 588 
Philadelphia Association, &c. v. 

Wood 503 

Philadelphia & Reading R.R. Co. 

v. Yeiser 570 

Philadelphia & Trenton R.R. Co., 

Case of 547 

Philips v. Wickham 510 

Phillips v. Albany 215 

v. Allen 205 

v. Berick 47 

v. Bridge Co. 149 

v. Bury 251 

v. Covington, &c, Co. 147 

v. People 200 

v. State 593 

v. Wiley 423 

Phcenix Ins. Co. v. Allen 335 

v. Commonwealth 15 

Piatt v. People 618 

Piquett, Appellant 94, 392 

Pierce v. Bartram 584 

v. State 323 

Pierson v. State 23 

Pike v. Megoun 68 

v. Middleton 209 

Pilkey v. Gleason 157 

Pirn v. Nicholson 82, 139, 149, 

163 
Pingrey v. Washburn 136, 576, 577 
Piper t'. Chappell 202 

Piqua Branch Bank v. Knoop 126, 

279, 280 
Piscataqua Bridge v. New Hamp- 
shire Bridge 280, 281, 384, 526 
Pittock v. CTNeil 320, 448, 463 
Pittsburg v. Grier 247, 254 
v. Scott 530 
Pixley v. Clark 573 
Planter's Bank v. Sharp 126, 279 
Platner v. Best 47 
Pleasant v. Kost 512 
v. State 323 
Pleasants v. Rohrer 365 
Pledger v. Hitchcock 423 
Plitt v. Cox 555, 558 
Plumb v. Sawyer 361,369 
Plummer t;. Plummer 68 



xlviii 



TABLE OP CASES CITED. 



Plympton ». Somerset 233, 319 

Pocopson Road 531 

Poe v. Grever 422 

Police Commissioners ?;. Louisville 572 
Police Jury v. Sbreveport 192, 193 
Polk's Lessee v. Wendal 13 

Pollard's Lessee v. Hogan 524, 525 
Pomeroy v. Chicago, &c, R.R. Co. 548 
Pond v. Negus 78 

v. People 307 

Ponder v. Graham 113 

Pope v. Macon 369, 389 

Popham v. Pickburn 459 

Porter v. Marriner 286 

v. Sawyer 615 

Porterfield v. Clark 14 

Portland Bank v. Apthorp 479 

Portwardens v. The Ward 586 

Postmaster v. Early 94 

Potter v. Hiscox 405 

Powers v. Bears 560, 561 

v. Bergen 105 

v. Dougherty Co. 119 

v. Dubois 424 

Pratt v. Brown 53, 383, 530, 536, 

537 

v. Donovan 402 

v. Jones 366 

v. People 615 

v. Teft't 361 

Pray v. Northern Liberties 514 

Prentiss o. Holbrook 47 

Presbyterian Society v. Auburn, &c. 

R.R. Co. 547, 557 

Prescott v. State 299 

v. Trustees of Illinois & 

M. Canal 135 

Preston v. Boston 397 

v. Browder 13 

Prettyman v. Supervisors, &c. 119, 219 
Price v. Hopkin 156, 366 

v. Mott 62 

v. New Jersey R.R. Co. 579 

v. State 325, 327, 328 

Prichard's Case 133 

Prigg v. Pennsylvania 179 

Pritchett v. State 327 

Pritz, Ex parte 129 

Proprietors, &c. v. Laborce 366 

v. Nashua & Low- 
ell R.R. Co. 526, 
557, 568, 569 
Protber v. Lexington 248 

Protho v. Or 82, 146 

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

Co. 543, 552 

Prout v. Berry 9-1 

Providence v. Clapp 254 



Providence Bank v. Billings 280, 394, 

479 

Pullen v. Raleigh 195 

Pumpelly v. Green Bay Co. 542 

Purdy v. People 65, 66 

Purvear v. Commonwealth 18, 584 

Pu mm v. Fl it 56 

v. Johnson 597, 600 

Q- 

Quackenbush v. Danks 286, 287, 370 
Quarrier, Ex parte 263 

Queen, The v. Badger 310 

v. Collins 426, 428 

v. Justices of Hertford- 
shire 412 
v. Justices of London 412 
v. Justices of Suffolk 412 
v. Millis 51 
v. Newman 465 
v. Pickesley 313 
Quick v. Whitewater 58 
Quimby v. Vermont Central R.R. 

Co. 558 

Quin v. State 64, 599 



R. 



RadclifFe's Executors v. Brooklyn 206, 
208, 541, 542 
Ragatz v. Dubuque 560 

Rail v. Potts 616 

Railroad Co. v. Com'rs of Clinton 

Co. 91, 117, 119 

v. Ferris 560 

v. Gregory 147 

v. McClure 33 

v. Rock 12 

v. Shurmeir 555 

v. Whiteneck 146 

Railway Gross Receipts Tax 486 

Raleigh v. Sorrell 596 

Raleigh, &c, R.R. Co. v. Davis 537 

v. Reid 280 

Ralston v. Lothian 361 

Ramsey v. People 73 

Rand v. Commonwealth 273 

Randall v. Eastern R.R. Corp. 208 

v. Kehler 410 

Randolph, Ex parte 163 

v. Good 64, 262 

Randolph County v. Ralls 409 

Ranger v. Goodrich 423, 424 

v. Great Western R. 411 

Rape v. Heaton 16, 404, 406 



TABLE OF CASES CITED. 



xlix 



Rathbun v. Wheeler 361 

Ratzky v. People 272 

Rawley v. Hooker 289 

Ray v. Gage 369 

Ray Co. v. Bentley 241 

Read's Case 341 

Reading v. Keppleman 206 

Reames v. Kerns 412 

Reardon v. St Louis 246 

Reciprocity Bank, Matter of 33 

Rector v. Smith 426, 442 

Red River Bridge Co. v. Clarksville 526 

Reddall v. Bryan 12, 525, 532 

Redfield v. Florence 614 

Red way v. Gray 422 

Reed v. Rice 18 

v. State 147 

v. Toledo 194 

v. Tyler 369 

v. Wright 353 

Reeves v. Treasurer of Wood 

County 499, 506, 510, 530, 531, 532, 

533, 589 

Regents of University v. Williams 106, 

127, 165 



Regnier v. Cabot 






423 


Rehoboth v. Hunt 






275 


Reid v. De Lorme 






434 


Reimsdyke v. Kane 






14 


Reiser v. Tell Association 




94 


Reitenbaugh v. Chester Valley 




R.R. Co. 






528 


Remsen v. People 






325 


Requa v. Rochester 






249 


Respublica v. Dennie 




420 


429 


v. Duquet 






594 


v. Gibbs 






614 


Revis v. Smith 






441 


Rex. -See King, The. 








Rexford v. Knight 


558 


560 


561 


Reynolds v. Baldwin 




192, 


193 


v. Geary 






582 


v. Shreveport 






206 


Rhines v. Clark 






410 


Rhodes v. Cincinnati 






207 


. v. Otis 






589 


Rice v. Foster 


117, 


123, 


124 


v. Parkman 




98, 


105 


v. State 




129, 


160 


v. Turnpike Co. 






569 


Rice's Case 






336 


Rich v. Flanders 182, 


366, 


370, 


381 


Richards v. Rote 




107, 


382 


Richardson v. Boston 






412 


v. Monson 






103 


v. Morgan 




499, 


512 


v. Roberts 






423 



Page 
Richardson v. Vermont Central 

R.R. Co. 541, 543 

v. Welcome 412 

Richland v. Lawrence 190, 193, 223, 

239, 279 
Richmond v. Long 247, 248 

v. Richmond, &c, R.R. 

Co. 286, 287, 394 

Richmond, &c, Co. v. Rogers 541, 542, 

567 
Richmond, &c, R.R. Co. v. Lou- 
isa, &c, R.R. Co. 394, 526 
Riddle v. Proprietors of Locks, 

_&c. 240, 243, 247 

Ridge Street, In re 542 

Riggin's ExVs v. Brown 49 

Riggs v. Denniston 423 

v. Wilton 52 

Riley v. Rochester 212 

Riley's Case 273, 348 

Ring, Matter of 348 

v. Wheeler 444 

Rison v. Farr 64, 286, 289, 362, 363 
Roanoke, &c, R.R. Co. v. Davis 214 
Robbins v. Fletcher 423 

v. State 323 

Roberts v. Caldwell 16 

v. Chicago 206, 542 

v. Ogle 588 

Robertson v. Bullions 466 

v. Rockford 119, 192, 219 
Robeson v. Brown 290 

Robie v. Sedgwick 197 

Robinson, Ex parte 345 

v. Bank of Darien 177 

v. Bidwell 123, 178 

v. Commonwealth Insur- 
ance Co. 14 
v. Howe 290, 291 
v. N. Y. & Erie R.R. 

Co. 543 

v. Richardson 307 

v. Robertson 567 

v. Skipworth 145 

v. State 146 

v. Ward's Ex'rs 16, 404 

v. West 409 

v. White 276 

Rochester v. Collins 194 

Rochester White Lead Co. v. 

Rochester 247, 253,, 254 

Rockwell v. Hubbell's Adm'rs 286, 287, 

361 

v. Xearing 364, 403 

Rogers v. Bradshaw 560 

v. Burlington 119, 215 

v. Collier 205 

v. Goodwin 69 



TABLE OF CASES CITED. 



Rogers v. Jones 






198 


v. State 






151 


Roll v. Augusta 






206 


Rome v. Oinberg 






206 


Roosevelt v. Meyer 






12 


Ropes v. Clinch 






11 


Rosier v. Hale 






361 


Ross v. Duval 






13 


v. Irving 






387 


v. Madison 






254 


v. McLung 






13 


v. Whitman 






89 


Ross's Case 




273, 


348 


Rounds v. Mumford 






206 


Roush v. Walter 






593 


Routsong v. Wolf 






377 


Rowan v. Runels 






14 


Rowe v. Addison 






526 


v. Granite Bridge 


Corpora- 




tion 






543 


v. Rowe 






347 


Royal British Bank v. Turquand 


216 


Ruloff v. People 






311 


Rumney v. Keyes 






339 


Rumsey v. People 






255 


Ruseh v. Davenport 




247 


248 


Rush v. Cavenaugh 






337 


Russell v. Burlington 






206 


v. Jeffersonville 






216 


v. Men of Devon 


198, 


243 


, 246 


v. New York 




526 


594 


v. Pyland 






615 


v. Rumsey 






278 


v. Whiting 






347 


Rust v. Gott 






615 


v. Lowe 






558 


Rutland v. Mendon 






52 


Ryalls v. Leader 






448 


Ryan v. Thomas 






12 


Ryckman v. Delavan 






424 


Ryegate v. Wardsboro 






57 


Ryerson v. Utley 145, 


149 


491 


, 494 



s. 



Sacramento v. Crocker 503 

Sadler v. Langham 69, 70, 180, 530, 

536 
Safford v. People 323 

Sadly v. Smith 302 

Salters v. Tobias 94 

Saltpetre Case 594 

Sammons v. Ilolloway 484 

San Antonio v. Jones 119 

v. Lane 216 

Sanborn v. Deertield 216 

v. Rice 233, 493, 494 



Page 

Sanders v. Hillsboro' Ins. Co. 286 

Sanderson v. Caldwell 423 

Sandford v. Nichols 303, 304 

Sands v. Kimbark 410 

Sanford v. Bennett 455 

San Francisco v. Canavan 239 

Santo v. State 117, 121, 168, 177, 178, 

581, 582 
Sater v. Burlington & M. P. Plank 

R. Co. 567 

Satterlee v. Mathewson 266, 376, 381 
v. San Francisco 141 

Saunders v. Cabaniss 96 

ik Haynes 620 

v. Mills 448, 465 

v. Rodway 339 

v. Springstein 499 

v. Wilson 387 

Savage v. Walshe 78 

Savannah v. Hartridge 194 

v. State 177 

Savannah, &c, R.R. Co. v. Sa- 
vannah 
Savings Bank v. Allen 
v. Bates 
Savings Society v. Philadelphia 
Sawyer v. Alton 
v. Corse 

v. Vermont, &c, R.R. Co 
Sayles v. Davis 
Sayre v. Wisner 
Scales v. Chattahoochee Co 
Schenley v. Alleghany City 
v. Commonwealth 



552 
375 
375 
198 
512 
247 
579 
484 
62, 370 
240 
498 
361, 369, 
373 
307 
520 



Schiner v. People 
School District v. Merrills 

v. AVood 240, 241, 243 
Schooner Paulina's Cargo v. United 

States 54 

Schooner Rachel v. United States 361, 

381 
Schurman v. Marley 23 

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

Co. 547 

Scofield v. Watkins 515 

Scott v. Clark 157 

v. Detroit Young Men's So- 
ciety's Lessee 26 
v. Jones 12 
v. Manchester 247 
v. Mather 387 
v. Smart's Ex'rs 168 
v. Willson 589 
Scoville v. Cleveland 497, 506, 507 
Sears v. Com'rs of Warren Co. 15 
v. Cottrell 88. 173, 182, 356 
v. Terry 406 



TABLE OF CASES CITED. 



li 



Page 

Sedgwick v. Stanton 137 

Sell iv v. Bardons 50 

Selin v. Snyder 407 
Selma, &c, R.R. Co., Ex parte 119 

Selman v. Wolfe 590 

Selsby v. Redlon 372 

Semayne's Case 302 

Sequestration Cases 291 

Sessions v. Crunkilton 506, 588 

Sessurus v. Botts 187 

Settle v. Van Enrea 58 

Seven Bishops' Case, The 3-19 

Sexton v. Todd 423 

Seymour v. Turnpike Co. 214 

Shackford v. Newington 223, 490 

Shackleford v. Coffey 536 

Shafer v. Mumma 200 

Shannon v. Frost 466, 467 

Sharp v. Contra Costa Co. 200 

v. New York 146, 147 

v. Spier 498 

Sharp's Ex'rs v. Donovan 491 

Sharpless v. Mavor, &c. 119, 226, 479, 

489 

Shattuck v. Allen . 463 

Shaw v. Charlestown 563 

v. Crawford 589 

v. Dennis 491, 513 

v. Macon 127 

v. Moore 477 

v. Norfolk R.R. Corp. 379 

v. Thompson 339 

Shawnee County v. Carter 75 

Shearlock v. Beardsworth 424 

Sheckel v. Jackson 454 

Shehan's Heirs v. Barnet's Heirs 103 

Shelby v. Guy 13 

Sheldon v. Wright 406, 408 

Shepardson v. Milwaukee, &c, 

R.R. Co. 186, 560, 561, 562 

Shepherd v. People 272 

Sherburne v. Yuba Co. 246, 248 

Sherman v. Story 135 

Sherwood v. Fleming 379 

Shiplev v. Todhunter 426 

Shipp o. Miller 13 

Shipper v. Pennsylvania R.R. Co. 15 

Shore v. State 310 

Shorter, Matter of 263 

v. People 307 

v. Smith 281 

Shouk v . Brown 379 

Shover v. State 476, 596 

Shraden, Ex parte 584 
Shrunk v. Schuylkill Nav. Co. 541, 542 

Shumway v. Stillman 16 

Sidgreaves v. Myatt 423 

Sigourney v. Sibley 411, 412 



Sill v. Corning 


168, 


173, 


rage 

174 


Silliman v. Cummins 






377 


Sills v. Brown 






318 


Simmons v. Holster 






422 


Simond's Ex'rs v. Gratz 






476 


Simonds v. Simonds 


96, 


111, 


391 


Simpson v. Bailey 






147 


v. State 






23 


Sims v. Irving 






13 


Sinclair v. Jackson 




163, 


164 


Sinks v. Reese 






601 


Sinton v. Ashbury 




192, 


230 


Skelding v. Whitney 






47 


Skilding v. Herrick 






47 


Skinner, Ex parte 






348 



v. Hartford Bridge Co. 206, 
542 
Slack v. Railroad Co. 63, 119, 217, 

232, 488 

Slade v. Slade 47 
Slatten v. Des Moines Valley R.R. 

Co. 542, 570 

Slaughter v. Commonwealth 15 

v. People 200 

Slauson v. Racine 179 

Slave Grace, The 298 

Slayton v. Hulings 74, 78 

Sleght v. Kane 262 

Sloan v. State 192 

Smalley v. Anderson 423 

Smead o. Indianapolis, &c, R.R. 

Co. 216 

Smith, Ex parte 15 

Matter of 18 

Petition of 348 

v. Adrian 123 

v. Appleton 292 

v. Ballentyne 49 

v. Brown 298 

v. Bryan 361 

v. Cheshire 215 

t\ Cleveland 368, 382 

v. Collins 620 

v. Commonwealth 147, 149 

v. Connolley 536 

v. Eastern R.R. Co. 579 

v. Gould 298 

v. Henry Co. 215 

v. Hunter 13 

v. Janesville 120, 123 

v. Judge 89, 173 

v. Levinus 190 

v. Maryland 18 

v. McCarthy 119, 163 

v. Merchant's Ex'rs 372 

v. Morrison 156, 366 

v. Morse 195, 205 

v. Nelson 466 



lii 



TABLE OF CASES CITED. 



Smith v. Packard 
v. People 



286, 291 
65, 399 
406 
483 
14 
423 
402 
422 
425 
56 
286 
207, 542 
314 



v. Rice 

v. Short 

v. Shriver 

v. Silence 

v. Smith 

v. Stewart 

v. Thomas 

v. Thursby 

v. Van Gilder 

v. Washington 

Smith, Mary, Case of 

Smoot v. Wetumpka 247 

Smyth v. McMasters 615 

Sneider v. Heidelberger 287 

Snowhill v. Snowhill 103 

Snyder v. Andrews 464 

v. Bull 379 

v. Fulton 465 

v. Pennsylvania R.R. Co. 547 

v. Rockport 206 

Society, &c. v. Wheeler 14, 366, 370, 

389 
Society of Scriveners v. Brooking 201 
Sohier v. Massachusetts Hospital 103 
Solomon v. Cartersville 153 

Somerville v. Hawkins 425 

v. Eastern R.R. Co. ads. 

Doughty 566, 567, 568 
Sommersett's Case 297, 298 

Sorocco v. Gearv 526, 594 

Southard v. Central R.R. Co. _ 378 
South Carolina R.R. Co. v. Steiner 545, 

549 
Southport v. Ogden 198 

Southwark Bank v. Commonwealth 51, 

135 
South-western R.R. Co. v. Paulk 581 
South-western R.R. Co. v. Tele- 
graph Co. 560, 562 
Southwick v. Soutlnvick 366 
Southworth v. Palmyra & Jackson- 
burgh R.R. Co. " 141 
Soutter v. Madison 292 
Spangler v. Jacoby 135, 140 
Spanker's Case 11, 346 
Sparhawk v. Salem 208 
Sparrow v. Kingman 52 
Spaulding v. Lowell 596 
Spears v. State 314, 315 
Specht v. Commonwealth 476, 596 
Speern. Plank Road Co. 152 
v. School Directors 222, 488 
Spencer v. Dearth 47, 49 
v. McMasters 423 
v. State 56, 151, 152 
Spooner v. McConnell 26, 28, 126 



Sporrer v. Eifler 
Sprague v. Birdsall 

v. Norway 

v. Worcester 542, 

Sprecker v. Wakelee 286, 287, 288, 
Spriggins v. Houghton 
Spring v. Russell 

Springer v. Foster 14, 

Springfield v. Connecticut River 
R.R. Co. 526, 545, 

Springfield v. Le Claire 247, 

Stackhouse v. La Fayette 
Stacy v. Vermont Central R.R. 

Co. 
St. Albans v. Bush 
Stanfield v. Boyer 
Stanford v. Worn 
Staniford v. Barry 
Stanley, Ex parte 

v. Colt 

v. Stanley 

v. Webb 448, 449, 

Stanniford v. Wingate 
Starbuck v. Murray 16, 

Starin v. Genoa 
Starr v. Camden, &c, R.R. Co 



v. Pease 
State v. Adams (2 Stew.) 
v. Adams (44 Mo.) 



Ill, 



91, 94, 

263, 

323, 356, 

318, 



v. Allen 

v. Alman 

v. Almond 

v. Ambs 476, 

v. Arlin 

v. Ashley 

v. Atwood 62, 

v. Avery 

v. Auditor, &c. 361, 

v. Bailey 

v. Bank of South Carolina 



v. Barbee . 
v. Barker 
v. Barnett 
v. Barrett 
i'. Bartlett 
v. Battle 
v. Behimer 
v. Bcneke 
v. Benham 
v. Bernoudy 
v. Berry 
v. Binder 
v. Bissell 
v. Bladsdell 
v. Bond 
v. Bonny 



63, 



117, 



598, 



Page 
484 
396 
618 
543 
365 
616 
489 
294 

547 
253 
247 

528 
404 
423 
528 

96 
311 
103 
580 
451 
276 
404 
119 
547, 
557 
114 
625 
262, 
280 
463 
327 
581 
596 
267 
168 
370 
623 
370 
156 
289 
370 
275 

18 
340 
317 
327 
328 
121 
328 
263 
151 
619 
119 

55 
601 
397 



TABLE OF CASES CITED. 



liii 







Page 






Page 


State v. Bostick 




314 


State v. Dean 




499 


v. Bowers 




146 


\ v. Demorest 




223 


v. Branin 




192 


v. Denton 




319 


v. Brennan's Liqi 


ors 


309 


V. Dews 




277 


v. Brockman 




314 


v. Doherty 




355, 382 


v. Brooks 




327 


v. Dombaugb 




178 


v. Brown 




322 


v. Donehey 




582 


v. Brunetto 




318 


v. Doron 




56, 66 


v. Brunst 




277 


v. Douseman 




179 


v. Buchanan 




23 


v. Draper 




151 


v. Bunker 




197 


v. Duffy 




391 


v. Burlington, &c 


., R.R. Co. 567 


v . Dunning 




115 


v. Burnham 426, 43-J 


, 447, 465 


v. Easterbrook 




178 


v. Burns 




322 


v. Elwood 


606 


610, 612 


v. Callendine 




325, 327 


v. Ephraim 




325, 327 


v. Cameron 




317 


v. Everett 




319 


ik Cannon 




66 


v. Fagau 




187 


v. Cape Girardeau 


, &c. 


RR. 


v. Felton 




309 


Co. 




21, 182 


v. Ferguson 


193 


194, 205 


v. Carew 




291 


v. Fetter 




623 


v. Carr 




254 


«. Field 




121, 124 


v. Cavers 




612 


v. Fleming 




94 


v. Chandler 


471 


, 472, 473 


v. Foley 




588 


v. Cincinnati Gas Co. 


208, 393, 


v. Fosdick 




15 






545, 552 


v. Franklin Falls C 


0. 


366 


v. Clarke 




198 


v. Freeman 


200, 


318, 596 


v. Clerk of Passaic 


622, 625 


v. Fry 




113 


v. Click 




78 


v. Fuller 




506 


v. Coleman and Maxy 


354 


v. Garesche 




263 


v. Collector of Jersey City 515 


V. Garton 




484 


v, Commissioners 


of 


Balti- 


v. Gatzweiler 




285 


more 


78 


, 177, 390 


v. Georgia Medica 


Societ 


v. Commissioners 


of Clinton 


v. Gibbs 




623 


Co. 




119 


v. Gibson 




391 


v. Commissioners 


of 


Han- 


v. Giles 




620 


cock 




119 


v. Gleason 




90 


v. Commissioners 


of Or 


msby 


v. Goetze 




603 


Co. 




89 


v. Governor 




622 


v. Commissioners 


of Perry 179 


v. Graves 206, 


207, 


560, 561 


v. Commissioners 


of School, 


v. Green 




325 


&C, lands 




291 


v. Guild 




314, 316 


v. Connor 




327 


v. Guiterez 




173 


v. Constitution 




587 


v. Gut 




147 


v. Cooper 




328 


v. Haben 


230, 


237, 493 


v. Copeland 


117 


, 124, 177 


v. Hairston 




391, 573 


v. Corson 




272 


v. Harris 




228 


v. County Court of Boone 128 


v. Harrison 




146, 622 


v. County Judge 




623 


v. Hawthorn 




283, 289 


v. County Judge of Davis 143, 


v. Hay 




596 






144 


v. Hays 




187 


v. Cowan 




192, 200 


v. Hayward 




279 


i\ Cox 




177, 319 


v. Henry 




325 


v. Croteau 




323 


v. Hilmantel 601, 


606, 


620, 625, 


v. Crowell 




466 






626 


v. Cummings 




263 


v. Hitchcock 




128 


v. Curtis 




327 


v. Hudson County 




246 


v. Daley 




361 


v. Hufford 




315 


v. Dan forth 




329 


v. Hundley 




309 



liv 



TABLE OF CASES CITED. 



State v. Hurlbut 
v. Ingersoll 
v. Jackson 
v. Jarrett 



Page 

239 

150 

223, 482 

133 



v. Jersey City 200, 204, 205, 499, 

578, 588 

v. Johnson 



v. Jones (19 Ind.) 

v. Jones (5 Ala.) 

v. Jones (21 Md.) 

v. Judge, &e. 

v. Judge of Co. Court 

v. Jumel 

v. Justices of Middlesex 

v. Kanouse 

v. Kason 

v. Kattlemann 

v. Keith 

v. Kemp 

v. Kennon 

17. Kettle 

v. King 

v. Kinsella 

v. Kirke 

V. Kirkley 

v. Kittle 

V. Klinger 

v. Knight 

v. Krebs 

v. Kruttschnitt 

v. Lafayette Co. Court 

v. Laverack 

v. Lean 

v. Lehre 

v. Leiber 

v. Linn Co. Court 

v. Litchfield 

v. Little 

v. Lowhorne 

v. Lyles 

v. JNIace 

v. Macon County Court 

v. Main 

v. Manning 

v. Mansfield 

v. Marlow 

v. Marler 

v. Martin 

v. Mathews 

v. Mayhew 

v. Maynard 

v. Mayor, &c. 

r. .AIcAdoo 

v. McBride 

v. McCann 

v. ]\IcGinley 

v. McGinnis 

v. Medbury 



79, 623 
603, 618 
323, 325 
364 
624 
186 
350 
622 
322 
327 
328 
33, 266 
322 
66, 114 
328 
57 
149 
336 
117, 196 
328 
309 
127 
394 
167 
149 
545, 555, 557 
77, 157 
420 
596 
119 
306 
325 
316 
168 
58, 66 
61 
127, 128 
272, 381 
319 
623 
309 
328 
133, 575 
68, 70 
89 
598 
263 
32, 141 
129 
78 
320 
15, 397 



State v 
v, 
v 
v 
v, 
v 
v 

V 



Merchants 1 Ins. Co 

Messmore 

Metzger 

Miller 

Mills 

Milwaukee Gas Co 

Mobile 

Mofiitt 

Morristown 

Neal 

Ned 

Neill 



503 
277 
406 
82, 147 
514 
393 
557 
135, 590 
193 



33, 264, 273, 599 

325 

119, 191 

Nelson 325 

Newark 147, 371, 373, 378 

Newton 325 

New York 207 

Nichols ' 116 

North 514, 519 

Northern Central R.R. Co. 94 

Norvell 325, 327 

, Norwood 361, 378, 381 

Noyes 106, 123, 190, 279, 283, 

526, 576, 577 

, Ober 317 

. O'Flaherty 309 



Olin 
Oliver 
O'Niell 
Orvis 
Oskins 
Parker 
Parkinson 
Patterson 
Peace 

Pendergrass 
Peterson 
Pbalen 
Piatt 
Portage 
Powers 
Prescott 
Prince 
Pritchard 
Quarrel 
Quick 
Redman 
Reed 
Reynolds 
Rich 
Richland 
Richmond 
Robb 
Roberts 

Robinson (1 Kan.) 
Robinson (49 Me.) 
, Robinson (33 Me.) 
, Robinson (14 Minn.) 
, Rockafellow 



606 
318 
123 
603 
125 
117, 121, 123, 514 
68, 129 



205, 325 
323 
341 
319, 410 
283, 289 
135 
509 
144 
582 
327 
363 
319 
318 
328 
325 
119, 123, 320 
164 
370 
348 
616 
201, 316 
168, 182 
581 
582 
319 
309 



T^BLE OP CASES CITED. 



lv 





Page 


State v. Rollins 


23 


v.. Ross 


328 


v. Rutledge 


614 


v. Ryan 


272, 273 


v. Saline Co. Court 


187 


v. Scott 


119, 408 


v. Shattuck 


348 


v. Simonds 


190 


v. Simons 


352, 355 


v. Slack 


327 


v. Smith 


620 


v. Snow 


177, 323 


v. Spier 


325, 327 



v. Squires 128, 149, 369, 381 

v. Staley 314 

v. Stanley 114 

v. Staten" 64, 171, 262, 352, 355, 

358, 363 

». Sterling 283 

v. St. Joseph 619 

v. St. Louis Cathedral 147 

v. St. Louis Co. Court 239 

v. Stumph 618 

v. Sullivan 381 

v. Summons 309, 310 

v. Swisher 117, 121 

v. Symonds 64, 263, 599 

v. Tait 322, 328 

v. Tappan 171, 211, 228, 232, 

239, 262, 491, 493 

v. Taylor 322 

v. Thomas 317 

v. Thompson 63 

v. Tombeckbee Bank 277, 292 

v. Towle 348 

v. Treasurer 151 

v. Trustees of Union 119, 144 

v. Turner 399 

v. Union 144, 371, 373 

v. Vaigneur 316 

v. Van Home 119 

v. Walker 327 

v. Wapello Co. 215, 219 

v. Warren 379, 623 

v. Weir 117 

v. Welch 200 

v. Wheeler 177, 581, 582 

v. White 465 

v. Wilcox 117, 119, 121, 191 

v. Wilkesbarre 222 

v. Wilkinson 323 

v. Williams (5 Wis.) 64 

v. Williams (2 Rich.) 269, 273 

v. Wilson 272, 273 

v. Wiseman 327 

v. Woodruff 29 

v. Young 603 

State Bank v. Knoup 14 



Page 

State Freight Tax Case 486 

State Tax on Foreign held bonds 487 

Steamship Co. v. Jolliffe 586, 587 

Stearns v. Gittings 364, 365, 366 

Stebbins v. Jennings 198 

Steele v. Smith 16 

v. Southwick 423, 424 

Stein v. Burden 254, 526 

v. Mobile 119 

Steines v. Franklin Co. 187, 217 

Stephenson v. Osborn 287 

Stetson v. Kempton 191, 219, 521 

Stevens v. Andrews 291 

v. Middlesex Canal 537 

v. Paterson, &c, R.R. Co. 544 

Steward v. Jefferson 119 

Stewart v. Clark 589 

v. Griffith 103 

v. Howe 422 

v. Kinsella 149 

v. Laird 67, 69 

v. Mayor, &c. 410 

V. Mechanics' & Farmers' 

Bank 411 

v. New Orleans 248 

v. Supervisors, &c. 119 

Sticknoth's Estate 377, 379 

Stiles v. Nokes 448 

Stilwell v. Kellogg 410 

Stine v. Bennett 156 

Stinson v. Smith 153 

Stipp v. Brown 365 

Stittinus v. United States 323 

St. Joseph v. Anthony 498 

v. O'Donohue 498, 507 

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

County Court 64, 119 

St. Louis v. Alexander 119 

v. Allen 192, 193 

v. Benta 198, 200 

v. Cafferata 192, 198, 200, 
596 
v. Gurno 207, 208 

v. Russell 190, 191, 192, 239 
v. Tiefel 142, 145 

v. Weber 198, 200 

St. Louis, &c, R.R. Co. v. Rich- 
ardson 568 
Stockbridge v. West Stockbridge 197 
Stockbridge Iron Co. v. Hudson 

Iron Co. 410 

Stockdale v. Hansard 133, 458 

v. State 350 

Stocking v. Hunt 286, 289 

v. State 168, 182, 323 

Stockton, &c, R.R. Co. v. Stock- 
ton 119 
Stoddard v. Martin 615 



lvi 



TABLE OF CASES CITED. 



168 
215 
290 

424, 457 
303 
526 
319 
215 
286 

252, 253 

425 

28 

57 

205 

253 



Stoddart v. Smith 
Stokes v. Scott Co. 
Stone v. Bassett 

v. Cooper 

v. Dana 

v. New York 

v. State 
Stoney v. Life Insurance Co. 
Storey v. Furman 
Storrs v. LTtica 
Story v. Challands 
Stout v. Keyes 
Stowell v. Lord Zouch 
St. Paul v. Coulter 

v. Leitz 

St. Paul, &c, R.R. Co. v. Parcker 280 
Strader v. Graham 26 

Strahl, Ex parte 347 

Straueh v. Shoemaker 370 

Strauss v. Meyer 442 

v. Pontiac 202 

Sti-eet Railway v. Cumminsville 543, 

552, 556 
Streety v. Wood 434 

Sireubel v. Milwaukee, &c, R.R. 

Co. v 361 

Striker v. Kelley 78 

Stringfellow v. State 314 

Strong v. Daniel 187 

v. State 267 

Stroud v. Philadelphia 588 

Stuart v. Clark 589 

v. Kinsella 149 

v. AVarren 379 

Sturgeon v. Hitchins 147 

Sturges v. Crowninshield 18, 54, 286, 
287, 288, 293, 365 



Page 



Susquehanna Canal Co. v. Wright 543 



381 

198, 580 

146 

89 
314 
186 
424 

14 
361 
184 



Sturgis v. Spofford 
Stuyvesant v. New York 
Succession of Lanzetti 
Succession of Tanner 
Suffolk Witches, Case of 
Sullivan v. Adams 
Sumner v. Buel 
v. Hicks 
v. Miller 
Sun Mutual Ins. Co. v. New 
Sunbury & Erie R.R. Co. 

Cooper 
Sunbury & Erie R.R. Co. v. Hum 

mel 
Sundevlin v. Bradstreet 
Supervisors, &c. v. Heenan 142, 147 
Supervisors of Iroquois Co. v. 

Keady 156 

Supervisors of Schuyler Co. v. 

People 135, 139, 140, 145 

Surgett v. Lapice 68 



York 



187 

543 
425 



Susquehanna Depot v. Barry 




226 


Sutherland v. De Leon 




361 


Sutton v. Asher 




361 


v. Board 




246 


v. Tiller 




530 


Sutton Hospital, Case of 




198 


Sutton's Heirs v. Louisville 


568, 


569, 
570 


Suydam v. Broadnax 




294 


v. Moore 


575 


579 


v. Williamson 


14 


101 


Swan v. Williams 




537 


Swann v. Buck 




151 


Swift v. Fletcher 




286 


v. Tyson 


14, 23, ! 


v. Williamsburgh 


195 


217 


Swindel v. State 




327 


v. Brooks 




383 


Symonds v. Carter 




423 


Syracuse Bank v. Davis 


371, 


374 



Tabor v. Cook 
Taft v. Adams 
Talbot v. Dent 119, 

v. Hudson 182, 488, 533, 
Tallman v. Janesville 379, 

Tanner v. Albion 190, 

Tarble's Case 1, 11, 

Tarleton v. Baker 
Tarlton v. Peggs 
Tarpley v. Hamer 
Tash v. Adams 
Tate v. Stooltzfoos 
Tate's Ex'r v. Bell 
Tayloe, Matter of 
Taylor v. Chambers 

v. Church* 

v. Commonwealth 

v. French 

v. Many 560, 

v. McCracken 

v. Miles 

v. Nashville, &c., 

v. Newberne 

v. Place 

v. Porter 88, 92 



R.R. Co 

91, 96 
353, 357, 
530 



v. Stearns 

v. St. Louis 

v. Taylor 66, 598, 618, 619 

v. Thompson 
Teftw. Teft 111 

Temple v. Mead 82, 604 



410 
276 
213 
560 
382 
596 
346 
615 
154 
286 
212 
377 
168 
309 

47 
425 
114 

53 
561 

49 
369 
530 
119 
109 
524, 
531 
291 
207 
623 
223 
391 
605 



TABLE OF CASES CITED. 



lvii 



age 

Ten Eyck v. D. & R. Canal 214 

v. Keokuk 215 

Tennessee, &c, R.R. Co. v. Head 545 
Tenney v. Lenz 202 

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

McKinley 570 

Terrett v. Taylor 165, 175, 237, 274. 

278, 279 
.Terrill i>. Rankin 361 

Territory v. Pyle 276 

Terry v. Bright 423 

v. Fellows 441, 448, 449 

Texas v. White 1, 5 

Thacker v. Hawk 394 

Thames Bank v. Lovell 592 

Thames Manuf. Co. v. Lathrop 78, 

382 

Tharp v. Fleming 105 

Thatcher v. Powell 13 

The Banks v. The Mayor 482 

Thein v. Voegtlandler 536 

Thomas v. Board of Commissioners 128 

v. Croswell 423 

v. Dakin 198 

v. Hubbell 49 

v. Leland 119, 232, 381, 479, 

491, 510 

v. Owens 64 

v. Richmond 215 

v. Scott 155 

Thomasson v. State 581 

Thompson v. Alexander 370 

v. Caldwell 365 

v. Carr 262 

v. Circuit-Judge 621 

v. Commonwealth 316 

v. Grand Gulf R.R. Co. 177 

v. Lee County 119, 379 

v. Morgan 375, 379 

v. Pacific R.R. Co. 482 

v. Phillips 13 

v. Pittston 212, 228 

v. Schermerhorn 206 

v. State 402, 404 

v. Steamboat Morton 397 

Thorn v. Blanchard 433 

v. ConVrs of Miami Co. 216 

Thorne v. Cramer 117 

Thorndike v. Boston 600 

Thornington v. Smith 290 

Thornton v. McGrath 369 

v. Turner 361, 366 

Thorpe v. Rutland & Burlington 

R.R. Co. 88, 126, 214, 280, 283, 

573, 574, 578 

Thurber v. Blackbourn 16 

Thursfield v. Jones 252 

Thurston v. Little 521 



Thurston v. Thurston 102 

Tide Water Co. v. Archer 567, 568 
v. Costar 493, 494 
Tift v. Griffin 368, 406 

Tillman v. Shackleton 61 

Tims v. State 186 

Tinicum Fishing Co. v. Carter 541 

Tinsman v. Belvidere & Delaware 

R.R. Co. 214, 543 

Todd v. Hawkins 425 

v. Kerr 401, 404 

Toledo Bank v. Bond 280 

Tolen v. Tolen 401 

Tomlin v. Dubuque, &c, R.R. 

Co. 544 

Tonawanda R.R. Co. v. Munger 544, 

579 
Tong v. Marvin 61, 361 

Torrey v. Corliss 370 

v. Field 442 

v. Milbury 76, 521 

Tower v. Lamb 409 

Towle v. Forney 103 

Town of Pawlett v. Clark 237, 275, 

279 
Townsend v. Griffin 113, 405 

v. Kendall 405 

Treat v. Lord 590 

Tremain v. Cohoes Co. 543 

Trevett v. Weeden 26, 161 

Trice v. Hannibal, &c, R.R. Co. 579 
Trigally v. Memphis 191 

Trombley v. Auditor General 526 

Trott v. Warren 197 

Troup v. Haight 68 

Troy & Boston R.R. Co. v. Lee 568 
Troy & Boston R.R. Co. v. North- 
ern Turnpike Co. 542 
True v. Plumlev 422 
Truehart v Addicks 618 
Trueman v. Taylor 423 
Trustees of Cass v. Dillon 222 
Trustees of Erie Academy v. City 

of Erie 192 

Trustees of M. E. Church v. Ellis 514 
Trustees of Paris v. Cherry 119 

Trustees of Schools v. Tatman 192, 
193, 232, 239, 277 
Trustees of W. & E. Canal v. 

Spears 543 

Trustees v. McCaughey 361, 371, 374 
v. McConnell 515 

Trustees, &c. v. Auburn & Ro- 
chester R.R. Co. 214 
Trustees, &c. v. Shoemaker 119 
Tucker v. Harris 966 
v. Magee > 340 
v. Virginia City 195, 



lviii 



TABLE OF CASES CITED. 



Page 
Tuolumne Redemption Co. v. Sedg- 
wick 289 
Turbeville v. Stampe 573 
Turley v. Logan Co. 135 
Turner, Matter of 298 
Turnpike Co. v. People 52 
v. State 384 
v. Wallace 214 
Tuscaloosa Bridge Co. v. Olmsted 14'J, 

151 

Tuttle v. Strout 147 

Twambly v. Henley 49 

Twitchell v. Commonwealth 18 

Tyler v. Beacber 494, 530, 53G 

v. People 127, 168 

v. Tyler 52 

Tyson v. Scbool Directors 14, 175, 

212, 227, 228, 370, 488, 490 

Tyzee v. Commonwealtb 319 



IT. 



Uhrig v. St. Louis 


506 


Ullery v. Commonwealtb 


310 


Underhill v. Welton 


423 


Underwood v. Lilley 372, 


377, 379 


Union Bank v. Hill 


483 


v. State 


33 


Union Insurance Co. v. Hoge 


68 


United States v. Aredondo 


11 


v. Battiste 


323 


v. Benner 


318 


v. Callendar 


336, 427 


v. Conway 


289 


v. Coolidge 


19 


v. Cooper 


427 


v. De Witt 


10, 573 


v. Fisber 


54, 63 


v. Frencb 


346 


v. Gilmore 


68 


v. Hamilton 


309 


v. Haswell 


427 


v. Hoar 


366 


v. Hudson 


19, 427 


v. Jailer of Fa) 


ette 345 


v. Jones 


309 


v. Lancaster 


19 


v. Little 


318 


v. Lyon 


427 


v. Mann 


14 


v. Marigold 


IS 


v. Minnesota, 


&c, 


R.R. Co. 


560 


v. Moore 


320 


v. Morris 


323 


v. Morrison 


13 



United States v. New Bedford 

Bridge 19, 592 

v. Ortega 318 

v. Palmer 141 

v. Passmore 361, 381 
v. Perchenian 11 

v. Perez 327 

v. Ragsdale 54 

v. Railroad Bridge 525 
v. Rector 346 

v. Riley 323, 325 

v. Samperyac 361 

v. Tynen " 362, 381 

v. Wilson 19, 324 

United States Bank v. Halstead 68 
v. Norton 11 

v. Planter's 

Bank 251 

University of Nortb Carolina v. 

Foy ' ^ 275 

Updegraph v. Commonwealtb 472, 474 
Upshaw, Ex parte, 149 

Upton v. Soutb Reading Branch 

R.R. 568, 569 

Usber v. Colcbester 228 

Utley v. Campbell 422 



V. 

Van Allen ?\ Assessors 482 

Van Alstyne v. Indiana P. & C. 

R.R. Co. 49 

Van Ankin v. Westfall 422 

Van Bambach v. Bade 284, 286 

Van Bokelen v. Brooklyn City R.R. 

Co. 14 

Van Bokkelin v. Ingersoll 49 

Van Camp v. Board of Education 394 
Vanderbilt v. Adams 283, 585, 594 

434 

292 

169 

47 

423 

19, 23 

286 

422 

286 

14 

286, 288, 

289 

584 

434 

352, 354, 356 

168, 544 

75 

575, 580 



Vanderzee v. McGregor 
Van Hoffman v. Quincy 
Van Home v. Dorrance 
Van Kleek v. Egglcston 
Van Ness v. Hamilton 
Van Nest v. Pacard 
Van Rensselaer v. Ball 
v. Hole 
v. Hays 
v. Kearney 
v. Snyder 

Van Wormer v. Albany 
Van Wyck v. Aspinwall 
Van Zant v. Waddell 
Varick v. Smith 
Veazie v. China 
v. Mavo 



TABLE OP CASES CITED. 



lix 



Veazie v. Moore 592 

Veazie Bank v. Fenno 482, 484 

Veeder v. Lima 107, 216 

Verner v. Carson 47 

Vidal v. Girard's Ex'ra 472 

Vilas v. Milwaukee & M. R.R. 

Co. 564 

Vincennes ». Richards 542 
Vincennes University v. Indiana 25, 

279 

Vincent v. Nantucket 211, 212 

Violett v. Violett 385 

Vischer v. Vischer 401 

Vise v. Hamilton Co. 334 

Voglesong v. State 476, 596 

Voorhies, Matter of 15 

Vose v. Morton 399 



w. 

Wabash, &c, Co. v. Beers 275 

Wade v. Richmond 192 

v. State 318 

Wadleigh ». Gilman 594 

Wadsworth's Adinr v. Smith 590 
Wager v. Troy Union R.R. Co. 547, 

550 

Waggaman v. Byers 422 

Walcott v. Swampscott 253 

Waldo i: Portland 222 
Waldron v. Rensselaer & Saratoga 

R.R. Co. 575, 579 

Wales v. Lyon 47 

v. Stetson 279, 394 

Walker v. Caldwell 142, 151 

v. Cincinnati 119 

v. Dunham 144 

v. Peele 276 

v. State 336 

v. Taylor 12 

v. Whitehead 289 

Wall v. State 125 

v. Trumbull 406, 408 

Wallace, In re 336 

v. Muscatine 253 

v. Shelton 498, 512 

Wallv's Heirs v. Kennedy 352, 392 

Walpole v. Elli.-tt 173, 382 

Walschiager v. Liberty 219 

Walston i'. Commonwealth 272, 273 

Walter v. Bacon 371 

Waltham v. Kemper 246, 248 

Walther v. Warner 560, 562 

Walton's Lessee v. Bailey 377 

Waltz v. Waltz 402 

Wammack v. Holloway 622 

Wantlan v. White 368 



Page 

Ward v. Brainerd 361 

v. Maryland 15, 484, 486, 487 

v. Morris 487 

v. New England, &c, Co. 103 

v. State 15 

v. Warner 590 

Wardlaw v. Buzzard 365 

Ware v. Hylton 6, 11 

Warickshall's Case 316 

Waring v. Jackson 13 

Warner v. Paine 441, 444 

v. People 276 

v. Scott 47 

v. State 323 

Warren v. Charlestown 177, 179 

v. Glvnn 409 

v. Henley 508, 509, 512 

v. Lyon's City 237 

v. McCarthy 16 

v. Paul 483 

v. Sherman 58 

v. State 323 

Warren Manuf. Co. v. iEtna Ins. 

Co 15 

Wartman v. Philadelphia 596 

Washburn v. Cooke 425 

v. Franklin 362, 375 

Washington v. Murray 69, 82, 149 

v. Nashville 588 

v. Page 68 

Washington Avenue 488, 497, 498, 

507, 509 
Washington Bridge Co. v. State 576, 

578 
Washington Co. v. Berwick 222 

Washington Insurance Co. v. Price 411, 

412 
Washington University v. Rouse 280 
Wason v. Walter 418, 440, 449 

Waters v. Leech 200 

Waterville v. Kennebeck Co. 193, 230, 

232 
347, 348 
369 
102 
526 
466 
467 
466, 467 
422 



Watkins 



Ex parte 

v. Haight 

v. Holman's Lessee 

v. Walker Co. 
Watson v. Avery 

v. Farris 

v. Jones 

v. McCarthy 

v. Mercer 266, 376, 377, 381 

v. New York Central R.R. 
Co. 286 

v. Thurber 61 

Watts v. Greenlee 423 

v. State 311 

Way man v. Southard 90 

Weaver v. Cherry 212 



lx 



TABLE OF CASES CITED. 



Page 

Weaver v. Lapsley 82, 96, 149 

Webb v. Baird 334, 394 

v. Den 366, 367 

Webster v. French 78 

v. Harwinton 189, 191, 219 

v. Reid 404, 406 

Weed v. Foster 424 

Weeks v. Milwaukee 192, 381, 493, 

499, 503, 508, 512, 515, 519, 595 

Weet i'. Broekport 247 

Weightman v. Washington 208, 246, 

247, 253 

Weise v. Smith 589, 590 

Weister v. Hade 9, 173, 182. 223, 226, 

372, 381, 479 

Welborn v. Aikin 

Welch v. Stowell 

v. Sykes 

v. Wadsworth 



Welker v. Potter 
Wellington, Petitioner 
Wells v. Burbank 
v. Scott 



289 

582 

16 

293, 362, 372, 

375 

129 

163, 177, 181 

520 

409 



v. Somerset, &c, R.R. Co. 526 
v. Weston 382, 500 

Wendel v. Durbin 77 

Wendell v. Troy 254 

West v. Bancroft 555 

v. Sansom 289 

West Branch, &c, Canal Co. v. 

Mulliner 542 

Western College v. Cleveland 208 

Western Fund Saving Society v. 

Philadelphia 252 

Westervelt v. Gregg 355, 360, 361 

v. Lewis 16 

Westfall v. Preston 522 

Weston v. Charleston 18, 482 

v. Foster 558 

West River Bridge Co. v. Dix 281, 

526 
West Va. Transportation Co. v. 

Volcanic Oil Co. 528, 530, 533 

Wetherell v. Stillman 16 

Wetumpka, Mayor of v. Winter 119 

Wheat v. Ragsdale 625 

Wheaton v. Peters 19 

Wheeler v. Chicago 76 

v. Chubbuck ' 156 

v. Cincinnati 208 

v. Rochester, &c, R.R. 

Co. 558 

v. Spencer 615 

v. State 146, 319 

v. Wall 169 

v. Worcester 254 



Wheeling Bridge Case 



591, 592 



Wheelock v. Young 
Whipley v. McCune 
Whipple v. Farrar 
Wiiite v. Buchanan 
v. Carroll 

v. Commissioners of Nor- 
folk Co. 
v. Flvnn 

v. Hart 33, 285, 

v. Kendrick 
v. Kent 
v. Mayor, &c. 
v. Scott 

v. Stamford 171, 

v. Tallman 
v. White (5 Barb.) 
v. White (105 Mass.) Ill, 
v. Yazoo City 
v. Zane 
Whitebread v. The Queen 
Whitehurst v. Coleen 
Whiteley v. Adams 
Whiteman's Ex'rs v. Wilmington, 

&c, R.R. Co. 
White Mountains R.R. Co. v. 
White Mountains R.R. Co. of 
N. H. 
White River Turnpike Co. v. Ver- 
mont Central R.R. Co. 526, 
White School House v. Post 
Whitfield v. Longest 
Whiting v. Barney 
v. Earle 

v. Mt. Pleasant 144, 

v. Sheboygan R.R. Co. 
Whitley v. State 

Whitman v. Boston & Maine R.R. 
Co. 
v. Hapgood 
Whitney v. Richardson 
Whitson v. Franklin 
Whittaker v. Johnson Co. 
Whittington v. Polk 47, 

Whyte v. Nashville 
Wick v. The Samuel Strong 
Wider v. East St. Louis 
Wilbraham v. Ludlow 
Wilby v. Elston 
Wilcox v. Jackson 
v. Rodman 
v. Wilcox 
Wilder v. Case 
Wildes v. Van Voorhies 
Wiley v. Parmer 
Wilkes v. Wood 
Wilkes's Case 
Wilkins v. Miller 
AVilkinson v. Cheatham 383, 



526 
618 
361 
397 
441 

570 
368 
289 
355 
596 
200 
163 
212 
205 
530 
372 
206 
61 
329 
402 
425 



379 

537 

361 
588 
334 
339 
147 
215 
318 

570 
369 
387 
578 

47 
168 
205 

14 
233 
600 
423 

13 
276 
401 

47 
360 
487 
307 
300 
146 
384 



TABLE OF CASES CITED. 



Ixi 



Wilkinson v. Leland 92, 102, 105, 165, 

175 

Willard v. Harvey 370 

v. Killingworth 191, 202 

v. Longstreet 289 

v. People 178, 179, 180 

v. Presbury 507 

Willcox v. Kassick 16, 406 

Williams v. Augusta 595 

v. Bidleman 129 

v. Bryant 423 

v. Carleton 14:6 

v. Commonwealth 325 

17. Detroit 168, 497, 498, 507, 

510 

v. Haines 286 

v. Hill 424 

v. Johnson 370 

v. Kirkland 14 

v. Natural Bridge Plank 

Road Co. 545 

v. New York Central 

R.R. Co. 547, 557 

v. Norris 12 

v. Oliver 12 

v. Payson 146, 177 

v. People 146 

v. School District 78, 489, 

515, 532 

v. Stein 605 

v. Wickerman 530 

Williamson v. Carlton 164 

f. Suydara 101 

v. Williamson 102 

Williston v. Colkett 371 

Wilmington R.R. Co. v. Reid 280 

Wilson v. Blackbird Creek Marsh 

Co. 486, 532, 537, 

591, 593 
v. Collins 442 

v. Crockett 530 

v. Franklin 530 

v. Hardesty 375 

v. McKenna 363, 369 

v. New York 514, 515, 542 
v. Noonan 422, 465 

v. Runyan 423 

v. State 337 

Wilson's Case 344 

Winchell v. State 318 

Winchester v. Ay res 399 

Windham v. Portland 193 

Wingate v. Sluder 479 

Winona, &c, R.R. Co. v. Den- 
man 569, 570 
Winona & St. Paul R.R. Co. v. 

Waldron 568, 579 

Winsor v. The Queen 327 



Page 

Winter i\*Jones 284 

Wires v. Farr 365 

Wirth v. Wilmington 198, 216 
Wisconsin River Improvement 

Co. v. Lyons 26 

Withers v. State 337 

Withington v. Corey 387, 389 

. Witt v. State 318 

Woart v. Winnick 266, 267, 365, 370 

Wolcott v. People 486 

v. Rickey 339 

v. Wigton 57, 79 

Wolcott Woollen Manuf. Co. v. 

Upham 534 
Wolfe v. Covington & Lexington 

R.R. Co. 547 

Wood v. Brooklyn 198 

v. Fort 155 

v. Kennedy 293, 375 

v. McCann 137 

v. Randall 409 

v. Stephen 49 

v. Watkinson 16 
Woodbridge v. Detroit 498, 501, 508, 

558, 588 
Woodburn v. Kilbourne Manuf. 

Co. 26, 593 

Woodbury v. Grimes 286, 361 

v. Thompson 423, 424 

Woodcock v. Bennett 353 

WoodfalPs Case 460 

Woodfolk v. Nashville R.R. Co. 569 

Woodhull v. Wagner 294 

Woodruff i'. Fisher 510 

v. Neal 544 

v. Trapnall 14, 284 

Woodward v. Lander 434 

v. Tremere 16 

Woodworth v. Spring 405 

Woolsey v. Dodge 13 

Work v. State 319, 399 

Worth v. Butler 423 

Wray, Ex parte 310 

v. Pittsburgh 498, 507 

Wreford v. People 204 

Wright v. Carter 545 

v. Chicago 498 

v. Cradiebaugh 368, 369 

t\ De Frees 187 

v. Dunham 367 

v. Hawkins 361, 379 

v. Le Claire 47 

v. Oakley 365 

v. Paige 422 

v. State 325, 327 

v. Woodgate 4^5 

v. Wright 113 

Wroth v. Johnson 615 



lxii 



TABLE OF CASES CITED. 



Wvnehamer v. People 89, 168, 171, 172, 

354, 356, 364, 572, 582, 

583, 584 



Yale, Ex parte 


263 


Yates v. Milwaukee 


544 


v. People 


307 


v. Yates 


402 


Yeaker v. Yeaker 


11 


Yeatman v. Crandell 


498, 512 


York v. Pease 


442 


Yost v. Stout 


530 


Yost's Report 


371 


Young v. Beardsley 


369 


v. Black 


47 



Young v. Commissioners, &c. 246 

v. Harrison 560 

v. McKenzie 531 

v. State Bank 96 



Z. 



Zabriske v. Cleveland 217 

v. Railroad Co. _ 119 

Zanesville v. Auditor of Muskin- 



gum 
Zimmerman v. Union Canal Co 

Zottman v. San Francisco 
Zumhoff v. State 
Zylstra's Case 



517 
541, 
592, 593 
212 
582 
355 



CONSTITUTIONAL LIMITATIONS. 



CONSTITUTIONAL LIMITATIONS. 



CHAPTER I. 



DEFINITIONS. 



A State is a body politic, or society of men, united together for 
the purpose of promoting their mutual safety and advantage by the 
joint efforts of their combined strength. 1 The terms nation and 
State are frequently employed, not only in the law of nations, but 
in common parlance, as importing the same thing ; 2 but the term 
nation is more strictly synonymous with people, and while a single 
State may embrace different nations or peoples, a single nation will 
sometimes be so divided politically as to constitute several States. 

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

Sovereignty, as applied to States, imports the supreme, absolute, 
uncontrollable power by which any State is governed. 3 A State is 
called a sovereign State when this supreme power resides within 
itself, whether resting in a single individual, or in a number of 
individuals, or in the whole body of the people. 4 In the view of 

1 Vattel, b. 1, c. 1, § 1; Story on Const. § 207; Wheat, Int. Law, pt. 1, 
c. 2, § 2 ; Halleck, Int. Law, 63; Bouv. Law Diet. " State." " A multitude of 
people united together by a communion of interest, and by common laws, to 
which they submit with one accord." Burlamaqui, Politic Law, c. 5. 

2 Thompson, J., in Cherokee Nation v. Georgia, 5 Pet. 52; Chase, Ch. J., 
in Texas v. White, 7 Wall. 720 ; Vattel, supra. 

3 Story on Const. § 207 ; 1 Black. Com. 49; Wheat. Int. Law, pt. 1, c. 2, 
§ 5; Halleck, Int. Law, 63, 64; Austin, Province of Jurisprudence, Lee. VI.; 
Chipman on Government, 137. " The right of commanding finally in civil soci- 
ety." Burlamaqui, Politic Law, c. 5. 

4 Vattel, b. 1, c. 1, § 2 ; Story on Const. § 207 ; Halleck, Int. Law, 65. In 
other words, when it is an independent State. Chipman on Government, 137. 

1 [1] 



* 1 CONSTITUTIONAL LIMITATIONS. [CH. I. 

international law, all sovereign States are and must be 
[* 2] equal in rights, * because, from the very definition of sover- 
eign State, it is impossible that there should be, in respect 
to it, any political superior. 

The sovereignty of a State commonly extends to all the subjects 
of government within the territorial limits occupied by the asso- 
ciated people which compose it; and, except upon the high seas, 
which belong equally to all men, like the air, and no part of which 
can rightfully be appropriated by any nation, 1 the dividing line 
between sovereignties is usually a territorial line. In American 
constitutional law, however, there is a division of the powers of 
sovereignty between the national and State governments by sub- 
jects : the former being possessed of supreme, absolute, and uncon- 
trollable power over certain subjects throughout all the States and 
territories, while the States have the like complete power, within 
their respective territorial limits, over other subjects. 2 In regard 
to certain other subjects, the States possess powers of regulation 
which are not sovereign powers, inasmuch as they are liable to be 
controlled, or for the time being to become altogether dormant by 
the exercise of a superior power vested in the general government 
in respect to the same subjects. 

A Constitution is sometimes defined as the fundamental law of 
a State, containing the principles upon which the government is 
founded, regulating the division of the sovereign powers, and 
directing to what persons each of these powers is to be confided, 
and the manner in which it is to be exercised. 3 Perhaps an 
equally complete and accurate definition would be, that body of 
rules and maxims in accordance with which the powers of sover- 
eignty are habitually exercised. 

In a much qualified and very imperfect sense every State may 
be said to possess a constitution ; that is to say, some leading 

1 Vattel, b. 1, c. 23, § 281 ; Wheat. Int. Law, pt. 2, c. 4, § 10. 

2 McLean, J., in License Cases, 5 How. 588. " The powers of the general 
government and of the State, although both exist and are exercised within the 
s-arne territorial limits, are yet separate and distinct sovereignties, acting sepa- 
rately and independently of each other, within their respective spheres. And the 

■' sphere of action appropriated to the United States is as far beyond the reach of 
the judicial process issued by a State judge or a State court, as if the line of 
division was traced by landmarks and monuments visible to the eye." Taney, 
Ch. J., in Ableman v. Booth, 21 How. 516. See Tarble's Case, 13 Wall. 406. 

3 1 Bouv. Inst. 9 ; Duer, Const. Juris. 26. 

[2] 



CH. I.] DEFINITIONS. 



* 



principle has prevailed in the administration of its government, 
until it has become an understood part of its system, to 
which obedience * is expected and habitually yielded ; like [* 3] 
the hereditary principle in most monarchies, and the 
custom of choosing the chieftain by the body of the people which 
prevails among some barbarous tribes. But the term constitu- 
tional government is applied only to those whose fundamental rules 
or maxims not only locate the sovereign power in individuals or 
bodies designated or chosen in some prescribed manner, but also 
define the limits of its exercise so as to protect individual rights, 
and shield them against the assumption of arbitrary power. The 
number of these is not great, and the protection they afford to 
individual rights is far from being uniform. 1 

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

The term unconstitutional law must vary in its meaning in differ- 
ent States, according as the powers of sovereignty are or are not 
possessed by the individual or body which exercises the powers of 
ordinary legislation. Where the law-making department of a State 
is restricted in its powers by a written fundamental law, as in the 
American States, we understand by unconstitutional law one which, 
being opposed to the fundamental law, is therefore in excess of 
legislative authority, and void. Indeed, the term unconstitutional 

1 Absolute monarchs, under a pressure of necessity, or to win the favor of 
their people, sometimes grant them what is called a constitution ; but this, so 
long as the power of the monarch is recognized as supreme, can be no more than 
his promise that he will observe its provisions, and conduct the government ac- 
cordingly. The mere grant of a constitution does not make the government a 
constitutional government, until the monarch is deprived of power to set it aside 
at will. The mere grant of Magna Charta did not make the English a constitu- 
tional monarchy ; it was only after repeated violations and confirmations of that 
instrument, and when a further disregard of its provisions had become dangerous 
to the Crown, that fundamental rights could be said to have constitutional guar- 
anties, and the government to be constitutional. 

* [3] 



* 3 CONSTITUTIONAL LIMITATIONS. [CH. I. 

law, as employed in American jurisprudence, is a misnomer, and 
implies a contradiction ; that enactment which is opposed to the 
Constitution being in fact no law at all. But where, by the theory 
of the government, the exercise of complete sovereignty is vested in 
the same individual or body which enacts the ordinary laws, any 
law, being an exercise of power by the sovereign authority, must be 
obligatory, and, if it varies from or conflicts with any existing con- 
stitutional principle, must have the effect to modify or abrogate such 
principle, instead of being nullified by it. This must be so in Great 
Britain with every law not in harmony with pre-existing constitu- 
tional principles ; since, by the theory of its government, Parliament 

exercises sovereign authority, and may even change the 
[* 4] Constitution * at any time, as in many instances it has done, 

by declaring its will to that effect. 1 And when thus the 
power to control and modify the Constitution resides in the ordi- 
nary law-making power of the State, the term unconstitutional law 
can mean no more than this : a law which, being opposed to the 
settled maxims upon which the government has habitually been 
conducted, ought not to be, or to have been, adopted. 2 It follows, 
therefore, that in Great Britain constitutional questions are for the 
most part to be discussed before the people or the Parliament, since 
the declared will of the Parliament is the final law ; but in America, 
after a constitutional question has been passed upon by the legis- 
lature, there is generally a right of appeal to the courts when it is 
attempted to put the will of the legislature in force. For the will 
of the people, as declared in the Constitution, is the final law ; and 
the will of the legislature is only law when it is in harmony with, 
or at least is not opposed to, that controlling instrument which 
governs the legislative body equally with the private citizen. 3 

1 1 Black. Com. 161 ; De Tocqueville, Democracy in America, c. 6 ; Broom, 
Const. Law, 795. 

2 Mr. Austin, in his Province of Jurisprudence, Lee. VI., explains and enlarges 
upon this idea, and gives illustrations to show that in England, and indeed under 
most governments, a rule prescribed by the law-making authority may be uncon- 
stitutional, and yet legal and obligatory. 

3 See Chapter VII. post. 

[4] 



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



*CHAPTER II. [*5] 

THE CONSTITUTION OF THE UNITED STATES. 

The government of the United States is the existing represent- 
ative of the national government which has always in some form 
existed over the American States. Before the Revolution, the 
powers of government, which were exercised over all the colonies 
in common, were so exercised as pertaining either to the Crown of 
Great Britain or to the Parliament ; but the extent of those powers, 
and how far vested in the Crown and how far in the Parliament, were 
questions never definitely settled, and which constituted subjects 
of dispute between the mother country and the people of the colo- 
nies, finally resulting in hostilities. 1 That the power over peace 
and war, the general direction of commercial intercourse with other 
nations, and the general control of such subjects as fall within the 
province of international law, were vested in the home government, 
and that the colonies were not, therefore, sovereign States in the 
full and proper sense of that term, were propositions never seriously 
disputed in America, and indeed were often formally conceded ; 
and the disputes related to questions as to what were or were not 
matters of internal regulation, the control of which the colonists 
insisted should be left exclusively to themselves. 

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

1 1 Pitkin's Hist. U. S. c. 6 ; Life and Works of John Adams, Vol. I. pp. 
122, 161; Vol. II. p. 311; Works of Jefferson, Vol. IX. p. 291; 2 Marshall's 
Washington, c. 2; Declaration of Rights by Colonial Congress of 1765; Ram- 
say's Revolution in South Carolina, pp. 6-11; 5 Bancroft's U. S. c. 18; 1 
Webster's Works, 128 ; Story on Const. § 183, et seq. 

[5] 



* 5 CONSTITUTIONAL LIMITATIONS. [CH. II. 

Congress of 1775 assumed to itself those powers of external con- 
trol which before had been conceded to the Crown or to 
[* 6] the * Parliament, together with such other powers of sov- 
ereignty as it seemed essential a general government 
should exercise, and thus became the national government of the 
United Colonies. By this body, war was conducted, independence 
declared, treaties formed, and admiralty jurisdiction exercised. It 
is evident, therefore, that the States, though declared to be " sov- 
ereign and independent," were never strictly so in their individual 
character, but that they were always, in respect to the higher powers 
of sovereignty, subject to the control of a central power, and were 
never separately known as members of the family of nations. 1 

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

" The Revolution, or rather the Declaration of Independence, found the people 
already united for general purposes, and at the same time providing for their 
more domestic concerns by State conventions and other temporary arrangements. 
From the Crown of Great Britain the sovereignty of their country passed to the 
people of it ; and it was not then an uncommon opinion that the unappropriated 
lands which belonged to the Crown passed, not to the people of the colony or 
State within whose limits they were situated, but to the whole people. On what- 
ever principles this opinion rested, it did not give way to the other, and thirteen 
sovereignties were considered as emerged from the principles of the Revolution, 
combined with local convenience and considerations ; the people, nevertheless, 
continued to consider themselves, in a national point of view, as one people ; and 
they continued without interruption to manage their national concerns accord- 
ingly. Afterwards, in the hurry of the war, and in the warmth of mutual confi- 
dence, they made a confederation of the States the basis of a general government. 
Experience disappointed the expectations they had formed from it ; and then the 
people, in their collective capacity, established the present Constitution." Per 
Jay, Ch. J., in Chisholm v. Georgia, 2 Dall. 470. See this point forcibly put 
and elaborated by Mr. A. J. Dallas, in his Life and Writings, by G. M. Dallas, 
200-207. Also in Texas v. White, 7 Wall. 724. 



CH. II.] THE CONSTITUTION OF THE UNITED STATES. * 6 

The Declaration of Independence made them sovereign and 
independent States, by altogether abolishing the foreign juris- 
diction, and substituting a national government of their own 
creation. 

But while national powers were assumed by and conceded 
to * the Congress of 1775-76, that body was nevertheless [* 7] 
strictly revolutionary in its character, and, like all revolu- 
tionary bodies, its authority was undefined, and could be limited 
only, first, by instructions to individual delegates by the States 
choosing them ; second, by the will of the Congress ; and third, by 
the power to enforce that will. 1 As in the latter particular it was 
essentially feeble, the necessity for a clear specification of powers 
which should be exercised by the national government became 
speedily apparent, and led to the adoption of the Articles of Con- 
federation. But those articles did not concede the full measure of 
power essential to the efficiency of a national government at home, 
the enforcement of respect abroad, or the preservation of the public 
faith or public credit ; and the difficulties experienced induced the 
election of delegates to the Constitutional Convention held in 1787, 
by which a Constitution was formed which was put into operation 
in 1789. As much larger powers were vested by this instrument 
in the general government than had ever been exercised in this 
country, by either the Crown, the Parliament, or the Revolutionary 
Congress, and larger than those conceded to the Congress under 
the Articles of Confederation, the assent of the people of the sev- 
eral States was essential to its acceptance, and a provision 
was inserted in the Constitution that the ratification * of [* 8] 
the conventions of nine States should be sufficient for the 
establishment of the Constitution between the States so ratifying 
the same. In fact, the Constitution was ratified by conventions of 
delegates chosen by the people in eleven of the States, before the 
new government was organized under it ; and the remaining two, 
North Carolina and Rhode Island, by their refusal to accept, and ft 
by the action of the others in proceeding separately, were excluded 
altogether from that national jurisdiction which before had embraced 
them. This exclusion was not warranted by any thing contained 
in the Articles of Confederation, which purported to be articles of 

1 See remarks of Iredell, J., in Penhallow v. Doane's Adm'r, 3 Dall. 91, and 
of Blair, J., in the same case, p. 111. The true doctrine on this subject is very 
clearly explained by Chase, J., in Ware v. Hylton, 3 Dall. 231. 

m 



* 8 CONSTITUTIONAL LIMITATIONS. [CH. II. 

" perpetual union" ; and the action of the eleven States in making 
radical revision of the Constitution, and excluding their associates 
for refusal to assent, was really revolutionary in character, 1 and 
only to be defended on the same ground of necessity on which all 
revolutionary action is justified, and which in this case was the 
absolute need, fully demonstrated by experience, of a more efficient 
general government. 2 

1 Mr. Van Buren has said of it that it was " an heroic, though perhaps a 
lawless act." Political Parties, p. 50. 

2 " Two questions of a very delicate nature present themselves on this occa- 
sion : 1. On what principle the confederation, which stands in the form of a 
solemn compact among the States, can he superseded without the unanimous con- 
sent of the parties to it; 2. What relation is to subsist between the nine or more 
States ratifying the Constitution, and the remaining few who do not become 
parties to it. The first question is answered at once by recurring to the absolute 
necessity of the case ; to the great principle of self-preservation ; to the tran- 
scendent law of nature and of nature's God, which declares that the safety and 
happiness of society are the objects at which all political institutions aim, and 
to which all such institutions must be sacrificed. Perhaps, also, an answer may be 
found without searching beyond the principles of the compact itself. It has been 
heretofore noted, among the defects of the confederation, that in many of the 
States it had received no higher sanction than a mere legislative ratification. 
The principle of reciprocality seems to require that its obligation on the other 
States should be reduced to the same standard. A compact between independent 
sovereigns, founded on acts of legislative authority, can pretend to no higher 
validity than a league or treaty between the parties. It is an established doc- 
trine on the subject of treaties, that all of the articles are mutually conditions of 
each other ; that a breach of any one article is a breach of the whole treaty ; and 
that a breach committed by either of the parties absolves the others, and author- 
izes them, if they please, to pronounce the compact violated and void. Should 
it unhappily be necessary to appeal to these delicate truths for a justification for 
dispensing with the consent of particular States to a dissolution of the federal 
pact, will not the complaining parties find it a difficult task to answer the multi- 
plied and important infractions with which they may be confronted ? The time 
has been when it was incumbent on us all to veil the ideas which this paragraph 
exhibits. The scene is now changed, and with it the part which the same motives 
dictate. The second question is not less delicate, and the flattering prospect of 
its being merely hypothetical forbids an over-curious discussion of it. It is one 
of those cases which must be left to provide for itself. In general it may be 
observed, that although no political relation can subsist between the assenting 
and dissenting States, yet the moral relations will remain uncancelled. The 
claims of justice, both on one side and on the other, will be in force and must be 
fulfilled ; the rights of humanity must in all cases be duly and mutually respected ; 
whilst considerations of a common interest, and above all the remembrance of 
the endearing scenes which are past, and the anticipation of a speedy triumph 

[8] 



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

* Left at liberty now to assume complete powers of sover- [* 9] 
eignty as independent governments, these two States saw 
fit soon to resume their place in the American family, under a per- 
mission contained in the Constitution ; and new States have since 
been added from time to time, all of them, with the exception of 
one, organized by the consent of the general government and em- 
bracing territory previously under its control. The exception was 
Texas, which had previously been an independent sovereign State, 
but which, by the conjoint action of its government and that of the 
United States, was received into the Union on an equal footing 
witli the other States. 

Without therefore discussing, or even designing to allude to 
any abstract theories as to the precise position and actual power 
of the several States at the time of forming the present Constitu- 
tion, 1 it may be said of them generally that they have at all times 
been subject to some common national government, which has 
exercised control over the subjects of war and peace, and other 
matters pertaining to external sovereignty; and that when the 
only three States which ever exercised complete sovereignty 
accepted the Constitution and came into the Union, on an equal 
footing with all the other States, they thereby accepted the same 
relative position to the general government, and divested them- 
selves permanently of those national powers which the others had 
never exercised. 

The government of the United States is one of enumerated 
powers; the national Constitution being the instrument which 
specifies them, and in which authority should be found for the 
exercise of any power which the national government assumes 
to possess. 2 In this respect it differs from the constitutions of 

over the obstacles to reunion, will, it is hoped, not urge in vain moderation on 
one side, and prudence on the other." Federalist, No. 43 (by Madison). 

1 See this subject discussed in Gibbons v. Ogden, 9 Wheat. 1. 

2 " The government of the United States can claim no powers which are not 
granted to it by the Constitution ; and the powers actually granted must be such 
as are expressly given, or given by necessary implication." Per Marshall, Ch. 
J., in Martin v. Hunter's Lessee, 1 Wheat. 326. " This instrument contains an 
enumeration of the powers expressly granted by the people to their government." 
Marshall, Ch. J., in Gibbons v. Ogden, 9 Wheat. 187. See Calder v. Bull, 3 
Dall. 386; Briscoe v. Bank of Kentucky, 11 Pet. 257; Gilman v. Philadelphia, 
3 Wall. 713 ; Weister v. Hade, 52 Penn. St. 477. The tenth amendment to the 
Constitution provides that " the powers not delegated to the United States by 

[9] 



* 10 CONSTITUTIONAL LIMITATIONS. [CH. II. 

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

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

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

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

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

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

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

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

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

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

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

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

12. To provide and maintain a navy. 

the Constitution, nor prohibited by it to the States, are reserved to the States 
respectively, or to the people." No power is conferred by the Constitution upon 
Congress to establish mere police regulations within the States. United States 
v. Dewitt, 9 Wall. 41. 
[10] 



CH. II.] THE CONSTITUTION OF THE UNITED STATES. * 10 

13. To make rules for the government and regulation of the 
land and naval forces. 

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

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

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

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

Congress is also empowered by the thirteenth, fourteenth, and 
fifteenth amendments to the Constitution to enforce the same 
by appropriate legislation. The thirteenth amendment abolishes 
slavery and involuntary servitude, except as a punishment for 
crime,. throughout the United States and all places subject to 
their jurisdiction. The fourteenth amendment has several objects. 
1. It declares all persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, to be citizens of the United 
States and of the State wherein they reside ; and it forbids any m 
State to make or enforce any law which shall abridge the privi- 
leges or immunities of citizens of the United States, or to deprive 
any person of life, liberty, or property, without due process of law, 
or to deny to any person within its jurisdiction the equal protec- 
tion of the laws. 2. It provides that when the right to vote at 
any election for the choice of electors for president or vice-presi- 
dent of the United States, representatives in Congress, the ex- 
ecutive and judicial officers of a State, or the members of the 
legislature thereof, is denied to any of the male inhabitants of 

[11] 



* 11 CONSTITUTIONAL LIMITATIONS. [CH. II. 

such State, being twenty-one years of age, and citizens of the 
United States, or in any way abridged, except for participation in 
rebellion or other crime, the basis of Congressional representation 
therein shall be reduced in the proportion which the number of 
such male citizens shall bear to the whole number of male citizens 
twenty-one years of age in such State. 3. It disqualifies from 
holding federal or State offices certain persons who shall have 
engaged in insurrection or rebellion against the United States, or 
given aid or comfort to the enemies thereof. 4. It declares the 
inviolability of the public debt of the United States, and forbids 
the United States or any State assuming or paying any debt or 
obligation incurred in aid of insurrection or rebellion against the 
United States, or any claim for the loss or emancipation of any 
slave. The fifteenth amendment declares that the right of citizens 
of the United States to vote shall not be denied or abridged by the 
United States or by any State, on account of race, color, or pre- 
vious condition of servitude. 1 

The executive power is vested in a president, who is made 
commander-in-chief of the army and navy, and of the militia of 
the several States when called into the service of the United 
States ; and who has power, by and with the consent of the Senate, 
to make treaties, provided two-thirds of the Senate concur, and, 
with the same advice and consent, to appoint ambassadors and 
other public ministers and consuls, judges of the Supreme Court, 
and other officers of the United States, whose appointments are 
not otherwise provided for. 2 

The judicial power of the United States extends to all cases in 
law and equity arising under the national Constitution, the laws 
of the United States, and treaties made, or which shall be made, 
under their authority ; to all cases affecting ambassadors, other 
public ministers and consuls ; to all cases of admiralty and mar- 
itime jurisdiction ; to controversies to which the United States 
shall be a party ; to controversies between two or more States ; 
between a State and citizens of another State ; between citizens 

1 See these amendments construed in the recent cases of Live Stock Dealers 
and Butchers 1 Association v. The Crescent City Live Stock Landing and Slaugh- 
ter House Co., and Bradwell v. Illinois, decided by the Supreme Court of the 
United States in 1873, and to appear in 15 Wallace. See also Story on Const. 
4th ed. c. 46, 47, 48, and App. to Vol. II. 

2 U. S. Const, art. 2. 

[12] 



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

of different States ; between citizens of the same State claiming 

lands under grants of different States ; and between a 

* State or citizens thereof and foreign States, citizens [* 12] 

or subjects. 1 But a State is not subject to be sued in 

the courts of the United States by the citizens of another State, 

or by citizens or subjects of any foreign State. 2 

The Constitution and the laws of the United States, made in 
pursuance thereof, and all treaties made under the authority of 
the United States, are declared to be the supreme law of the 
land ; and the judges of every State are to be bound thereby, 
any thing in the Constitution or laws of any State to the contrary 
notwithstanding. 3 

It is essential to the protection of the national jurisdiction, and 
to prevent collision between State and national authority, that the 
final decision upon all questions arising in regard thereto should 
rest with the courts of the Union; 4 and as such questions must 
frequently arise first in the State courts, provision is made by the 
Judiciary Act of 1789 for removing to the Supreme Court of the 
United States the final judgment or decree in any suit, rendered in 
the highest court of law or equity of a State in which a decision 
could be had, in which was drawn in question the validity of a 
treaty, or statute of, or authority exercised tinder the United States, 
and the decision was against their validity ; or where was drawn in 
question the validity of a statute of, or an authority exercised un- 
der any State, on the ground of their being repugnant to the Con- 

1 U.S. Const, art. 3, § 2. - U. S. Const. 11th Amendment. 

8 U. S. Const, art. 6 ; Owings v. Norwood's Lessee, 5 Cranch, 348 ; McCul- 
loch v. Maryland, 4 Wheat. 316 ; Foster v. Neilson, 2 Pet. 253, 314; Cook v. 
Moffat, 5 How. 295 ; Dodge v. Woolsey, 18 How. 331. When a treaty has been 
ratified by the proper formalities, it is, by the Constitution, the supreme law of 
the land, and the courts have no power to inquire into the authority of the per- 
sons by whom it was entered into on behalf of the foreign nation : Doe v. Braden, 
16 How. 635, 657 ; or the powers or rights recognized by it in the nation with 
which it was made: Maiden v. Ingersoll, 6 Mich. 373. A State law in conflict 
with it must give way to its superior authority. Ware v. Hylton, 3 Dall. 99 ; 
Yeaker v. Yeaker, 4 Met. Ky. 33. See, further, United States v. Aredondo, 
6 Pet. 691 ; United States v. Percheman, 7 Pet. 51 ; Garcia v. Lee, 12 Pet. 511 ; 
Ropes v. Clinch, 8 Blatch. 304; The Cherokee Tobacco, 11 Wall. 616. 

4 Martin v. Hunter's Lessee, 1 Wheat. 304, 334 ; Cohens v. Virginia, 6 
'Wheat. 264; Bank of United States v. Norton, 3 Marsh. 423; Braynard v. 
Marshall, 8 Pick. 196, per Parker, Ch. J.; Spangler's Case, 11 Mich. 298; 
Tarble's Case, 13 Wall. 397. 

[13] 



* 12 CONSTITUTIONAL LIMITATIONS. [CH. II. 

stitution, treaties, or laws of the United States, and the decision 
was in favor of such their validity ; or where was drawn in ques- 
tion the construction of any clause of the Constitution, or of a 

treaty, or statute of, or commission held under the United 
[* 13] States, and the decision was against the right, * title, 

privilege, or exemption specially set up or claimed by either 
party under such clause of the said Constitution, treaty, statute, or 
commission. 1 

But to authorize the removal under that act, it must appear by 
the record, either expressly or by clear and necessary intendment, 
that some one of the enumerated questions did arise in the State 
court, and was there passed upon. It is not sufficient that it 
might have arisen or been applicable. 2 And if the decision of the 
State court is in favor of the right, title, privilege, or exemption 
so claimed, the Judiciary Act does not authorize such removal. 3 
Neither does it where the validity of the State law is drawn in 
question, and the decision of the State court is against its validity. 4 
But the same reasons which require that the final decision upon 
all questions of national jurisdiction should be left to the national 
courts will also hold the national courts bound to respect the 
decisions of the State courts upon all questions arising under the 
State constitutions and laws, where no question of national au- 

1 1 Statutes at Large, 83 ; Brightly's Digest, 259. 

8 Owings v. Norwood's Lessee, 5 Cranch, 344; Martin v. Hunter's Lessee, 
1 Wheat. 304; Inglee v. Coolidge, 2 Wheat. 363; Miller v. Nicholls, 4 Wheat. 
311 ; Williams v. Norris, 12 Wheat. 117 ; Hickie v. Starke, 1 Pet. 98 ; Harris v. 
Dennie, 3 Pet. 292 ; Fisher's Lessee v. Cockerell, 5 Pet. 256 ; New Orleans v. 
De Armas, 9 Pet. 223, 234 ; Keene v. Clarke, 10 Pet. 291 ; Crowell v. Randell, 
10 Pet. 368 ; McKinny v. Carroll, 12 Pet. 66 ; Holmes v. Jennison, 14 Pet. 510 ; 
Scott v. Jones, 5 How. 343 ; Smith v. Hunter, 7 How. 738 ; Williams v. Oliver, 
12 How. Ill ; Calcote v. Stanton, 18 How. 243; Maxwell v. Newbold, 18 How. 
511; Hoyt v. Shelden, 1 Black, 518; Farney v. Towle, 1 Black, 350; Day v. 
Gallup, 2 Wall. 97. It is not sufficient that the presiding judge of the State 
court certifies that a right claimed under the national authority was brought in 
question. Railroad Co. v. Rock, 4 Wall. 177. 

3 Gordon v. Caldcleugh, 3 Cranch, 268 ; McDonough v. Millaudon, 3 How. 
693 ; Fulton v. McAffee, 16 Pet. 149 ; Linton v. Stanton, 12 How. 423 ; Burke 
v. Gaines, 19 How. 388; Reddall v. Bryan, 24 How. 420; Roosevelt v. Meyer, 
1 Wall. 512 ; Ryan v. Thomas, 4 Wall. 603. 

4 Commonwealth Bank v. Griffith, 14 Pet. 56 ; Walker v. Taylor, 5 How. 64. 
We take no notice here of the statutes for the removal of causes from the State 
to the Federal courts for the purposes of original trial, as they are not impor- 
tant to any discussion we shall have occasion to enter upon in this work. 

[14] 



/ 



CH. II.] THE CONSTITUTION OF THE UNITED STATES. * 13 

thority is involved, and to accept those decisions as correct, and 
to follow them whenever the same questions arise in the national 
courts. 1 With the power to revise the decisions of the State 

1 In Beauregard v. New Orleans, 18 How. 502, Mr. Justice Campbell says : 
"The constitution of this court requires it to follow the laws of the several 
States as rules of decision wherever they apply. And the habit of the court 
has been to defer to the decisions of their judicial tribunals upon questions 
arising out of the common law of the State, especially when applied to the title 
of lands." In Bank of Hamilton v. Dudley's Lessee, 2 Pet. 524, it was con- 
tended that the exclusive power of State courts to construe legislative acts did 
not extend to the paramount law, so as to enable them to give efficacy to an act 
which was contrary to the State constitution; but Marshall, Ch. J., said: " We 
cannot admit this distinction. The judicial department of every government is 
the rightful expositor of its laws, and emphatically of its supreme law." Again 
in Elmendorf v. Taylor, 10 Wheat. 159, the same eminent judge says: "The 
judicial department of every government, where such department exists, is the 
appropriate organ for construing the legislative acts of that government. Thus 
no court in the universe which proposed to be governed by principle would, we 
presume, undertake to say that the courts of Great Britain or France, or of any 
other nation, had misunderstood their own statutes, and therefore erect itself into 
a tribunal which should correct such misunderstanding. We receive the construc- 
tion given by the courts of the nation as the true sense of the law, and feel our- 
selves no more at liberty to depart from that construction than to depart from 
the words of the statute. On this principle, the construction given by this court 
to the Constitution and laws of the United States is received by all as the true 
construction ; and on the same principle the construction given by the courts of 
the several States to the legislative acts of those States is received as true, 
unless they come in conflict with the Constitution, laws, or treaties of the United 
States." And in Green v. jSTeafs Lessee, 6 Pet. 298, it is said by McLean, J. : 
" The decision of the highest judicial tribunal of a State should be considered 
as final by this court, not because the State tribunal in such a case has any 
power to bind this court, but because, in the language of the court in Shelby v. 
Guy, 11 Wheat. 361, a fixed and received construction by a State, in its own 
courts, makes a part of the statute law." And see Jackson v. Chew, 12 Wheat 
162, per Thompson, J. ; also the following cases : Sims v. Irvine, 3 Dall. 425 
McKeen v. Delancy, 5 Cranch, 22 ; Polk's Lessee v. Wendal, 9 Cranch, 87 
Preston v. Browder, 1 Wheat. 115; Mutual Assurance Co. v. Watts, ib. 279 
Shipp v. Miller, 2 Wheat. 316; Thatcher v. Powell, 6 Wheat. 119; Bell v 
Morrison, 1 Pet. 351; Waring v. Jackson, ib. 570; DeWolf v. Rabaud, ib 
476 ; Fullerton v. Bank of United States, ib. 604 ; Gardner v. Collins, 2 Pet 
58 ; Beach v. Viles, 2 Pet. 675 ; Inglis v. Sailors' Snug Harbor, 3 Pet. 99 
United States v. Morrison, 4 Pet. 124; Henderson v. Griffin, 5 Pet. 151; 
Hinde v. Vattier, ib. 398 ; Ross v. McLung, 6 Pet. 283 ; Marlatt v. Silk, 11 
Pet. 1 ; Bank of United States v. Daniel, 12 Pet. 32 ; Clarke v. Smith, 13 Pet. 
195; Ross v. Duval, ib. 45; Wilcox v. Jackson, ib. 498; Harpending v. 
Reformed Church, 16 Pet. 415; Martin v. Waddell, ib. 367; Amis v. Smith, 

[15] 



* 14 CONSTITUTIONAL LIMITATIONS. [CH. II. 

[* 14] * courts in the cases already pointed out, the due observ- 
ance of this rule will prevent those collisions of judicial 

ib. 303 ; Porterfield v. Clark, 2 How. 76 ; Lane v. Vick, 3 How. 464 ; Fox- 
croft v. Mallett, 4 How. 353 ; Barry v. Mercein, 5 How. 103 ; Rowan v. Run- 
nels, ib. 134; Van Rensselaer v. Kearney, 11 How. 297; Pease v. Peck, 18 
How. 595 ; Fisher v. Ilaldeman, 20 How. 186 ; Parker v. Kane, 22 How. 1 ; 
Suydam v. Williamson, 24 How. 427 ; Sumner v. Hicks, 2 Black, 532 ; Chicago 
v. Robbins, £5. 418 ; Miles v. Caldwell, 2 Wall. 35 ; Williams v. Kirkland, 13 
Wall. 306 ; Springer v. Foster, 2 Story C. C. 383 ; Neal v. Green, 1 McLean, 
18 ; Paine v. Wright, 6 McLean, 395 ; Boyle v. Arledge, Hemp. 620 ; Grifling v. 
Gibb, McAll. 212 ; Bayerque v. Cohen, ib. 113 ; Wick v. The Samuel Strong, 
Newb. 187 ; K F. Screw Co. v. Bliven, 3 Blatch. 240 ; Bronson v. Wallace, 4 
Blatch. 465; Van Bokelen v. Brooklyn City R.R. Co., 5 Blatch. 379; United 
States v. Mann, 1 Gall. 5 ; Society, &c. v. Wheeler, 2 Gall. 105 ; Coates v. 
Muse, Brock. 539 ; Meade v. Beale, Taney, 339 ; Parker v. Phetteplace, 2 
Cliff. 70 ; King v. Wilson, 1 Dill. 555. In Green v. Neal's Lessee, 6 Pet. 291, 
an important question was presented as to the proper course to be pursued by 
the Supreme Court of the United States under somewhat embarrassing circum- 
stances. That court bad been called upon to put a construction upon a State 
statute of limitations, and had done so. Afterwards the same question had 
been before the Supreme Court of the State, and in repeated cases had been 
decided otherwise. The question now was whether the Supreme Court would 
follow its own decision, or reverse that, in order to put itself in harmony with the 
State decisions. The subject is considered at length by McLean, J., who justly 
concludes that " adherence by the federal to the exposition of the local law, 
as given by the courts of the State, will greatly tend to preserve harmony in the 
exercise of the judicial power in the State and federal tribunals. This rule is 
not only recommended by strong considerations of propriety, growing out of our 
system of jurisprudence, but it is sustained by principle and authority." The 
court accordingly reversed its rulings to make them conform to those of the State 
court. See also Suydam v. Williamson, 24 How. 427 ; Leffingwell v. Warren, 
2 Black, 599; Blossburg, &c, R.R. Co. v. Tioga R.R. Co., 5 Blatch. 3S7 ; 
Smith v. Shriver, 3 Wall. Jr. 219. It is of course immaterial that the court may 
still be of opinion that the State court has erred, or that the decisions elsewhere 
are different. Bell v. Morrison, 1 Pet. 360. But where the Supreme Court had 
held that certain contracts for the price of slaves were not made void by the 
State constitution, and afterward the State court held otherwise, the Supreme 
Court, regarding this decision wrong, declined to reverse their own ruling. 
Rowan v. Runnels, 5 How. 134. Compare this with Nesmith v. Sheldon, 7 
How. 812, in which the court followed, without examination or question, the 
State decision, that a State general banking law was in violation of the consti- 
tution of the State. The United States Circuit Court had held otherwise pre- 
vious to the State decision. Falconer v. Campbell, 2 McLean, 195. 

This doctrine does not apply to questions not at all dependent upon local 
statutes or usages ; as, for instance, to contracts and other instruments of a com- 
mercial and general nature, like bills of exchange ; Swift v. Tyson, 16 Pet. 1 ; 
and insurance contracts ; Robinson v. Commonwealth Ins. Co., 3 Sum. 220. 
[16] 



CH. II.] THE CONSTITUTION OP THE UNITED STATES. * 14 

authority which would otherwise be inevitable, and which, 
besides being unseemly, * would be dangerous to the peace, [* 15] 
harmony, and stability of the Union under our peculiar 
system. 

Besides conferring specified powers upon the national govern- 
ment, the Constitution contains also certain restrictions upon the 
action of the States, a portion of them designed to prevent en- 
croachments upon the national authority, and another portion to 
protect individual rights against possible abuse of State power. 
Of the first class are the following : No State shall enter into any 
treaty, alliance, or confederation, grant letters of marque or re- 
prisal, coin money, emit bills of credit, 1 or make any thing but gold 
and silver coin a tender in payment of debts. No State shall, 
without the consent of Congress, lay any imposts or duties upon 
imports or exports, except what may be absolutely necessary for 
executing its inspection laws ; and the net produce of all duties 
and imposts laid by any State on imports or exports shall be for 
the use of the treasury of the United States, and all such laws 
shall be subject to the revision and control of Congress. No State 
shall, without the consent of Congress, lay any duty of tonnage, 

And see Reinisdyke v. Kane, 1 Gall. 376 ; Austen v. Miller, 5 McLean, 153 ; 
Glouster Ins. Co. v. Younger, 2 Curt. C. C. 322; Bragg v. Meyer, 1 McAll. 
408. And of course cases presenting questions of conflict with the Constitution 
of the United States cannot be within it. State Bank v. Knoup, 16 How. 369 ; 
Jefferson Branch Bank v. Skelley, 1 Black, 436. And where a contract had 
been made under a settled construction of the State constitution by its highest 
court, the Supreme Court sustained it, notwithstanding the State court had 
since overruled its former decision. Gelpecke v. Dubuque, 1 Wall. 176. Of late 
it has seemed that new and doubtful grounds were being taken for disregarding 
State decisions, and in several cases nearly one half the members of the federal 
Supreme Court have deemed it necessary to protest against an abandonment of 
the sound and safe doctrine of the earlier decisions. 

1 To constitute a bill of credit within the meaning of the Constitution, it must 
be issued by a State, involve the faith of the State, and be designed to circulate 
as money on the credit of the State in the ordinary uses of business. Briscoe v. 
Bank of Kentucky, 11 Pet. 257; Woodruff v. Trapnall, 10 How. 209. The 
facts that a State owns the entire capital stock of a bank, elects the directors, 
makes its bills receivable for the public dues, and pledges its faith for their 
redemption, do not make the bills of such bank " bills of credit" in the constitu- 
tional sense. Darrington v. State Bank of Alabama, 13 How. 12. See, further, 
Craig v. Missouri, 4 Pet. 410; Byrne v. Missouri, 8 Pet. 40; Curran v. Arkan- 
sas, 15 How. 317 ; Moreau v. Detchamendy, 41 Mo. 431 ; Bailey v. Milner, 35 
Geo. 330; City National Bank v. Mahan, 21 La. Ann. 751. 

2 [17] 



* 15 CONSTITUTIONAL LIMITATIONS. [CH. II. 

keep troops or ships of war in time of peace, enter into any agree- 
ment or compact with another State or with a foreign power, or 
engage in war, unless actually invaded, or in such imminent 
danger as will not admit of delay. Of the second class are the 
following : No State shall pass any bill of attainder, ex post facto 
law, or law impairing the obligation of contracts, 1 or make or en- 
force any law which shall abridge the privileges or immunities of 
citizens of the United States ; nor shall any State deprive any per- 
son of life, liberty, or property without due process of law, nor 
deny to any person within its jurisdiction the equal protection of 
the laws, 2 nor base discriminations in suffrage on race, color, or 
previous condition of servitude. 3 

Other provisions have for their object to prevent discriminations 
by the several States against the citizens and public authority and 
proceedings of other States. Of this class are the provisions that 
the citizens of each State shall be entitled to all the privileges 
and immunities of citizens in the several States ; 4 that fugitives 

! Const, of U. S. art. 1, § 10 ; Story on Const, c. 33, 34. 

2 Const, of U. S. 14th Amendment ; Story on Const. 4th ed. c. 47. 

3 Const, of U. S. 15th Amendment; Story on Const. 4th ed. c. 48. 

4 Const, of U. S. art. 4. " What are the privileges and immunities of citi- 
zens in the several States ? We feel no hesitation in confining these expressions 
to those privileges and immunities which are in their nature fundamental ; which 
belong of right to the citizens of all free governments ; and which have, at all 
times, been enjoyed by the citizens of the several States which compose this 
Union, from the time of their becoming free, independent, and sovereign. What 
those fundamental principles are, it would perhaps be more tedious than difficult 
to enumerate. They may, however, be all comprehended under the following 
general heads : protection by the government, the enjoyment of life and lib- 
erty, with the right to acquire and possess property of every kind, and to pursue 
and obtain happiness and safety, subject nevertheless to such restraints as the 
government may justly prescribe for the general good of the whole. The right 
of a citizen of one State to pass through, or to reside in any other State, for 
purposes of trade, agriculture, professional pursuits, or otherwise ; to claim the 
benefit of- the writ of habeas corpus ; to institute and maintain actions of every 
kind in the courts of the State ; to take, hold, and dispose of property, either 
real or personal ; and an exemption from higher taxes or impositions than are 
paid by the citizens of the other State, may be mentioned as some of the particu- 
lar privileges and immunities of citizens, which are clearly embraced by the 
general description of privileges deemed to be fundamental ; to which may be 
added the elective franchise as regulated and established by the laws or constitu- 
tion of the State in which it is to be exercised. These, and many others which 
might be mentioned, are, strictly speaking, privileges and immunities, and the 
enjoyment of them by the citizens of each State in every other State wrs mani- 

[18] 



CH. II.] THE CONSTITUTION OF THE UNITED STATES. * 15 

from justice shall * be delivered up, 1 and that full faith [* 16] 

festly calculated (to use the expressions of the preamble of the corresponding 
provision in the old Articles of Confederation) ' the better to secure and perpet- 
uate mutual friendship and intercourse among the people of the different States 
of the Union."' Washington, J., in Corfield v. Coryell, 4 Wash. C. C. 880. 
The Supreme Court will not describe and define those privileges and immunities, 
in a general classification ; preferring to decide each case as it may come up. • 
Conner v. Elliott, 18 How. 591 ; Ward v. Maryland, 12 Wall. 418. For discus- 
sions upon this subject, see Murray v. McCarty, 2 Munf. 393 ; Lemmon ». Peo- 
ple, 26 Barb. 270, and 20 N. Y. 562; Campbell v. Morris, 3 Har. & M'H. 554; 
Amy v. Smith, 1 Lit. 326; Crandall v. State, 10 Conn. 340; Butler v. Farns- 
worth, 4 Wash. C. C. 101; Commonwealth v. Towles, 5 Leigh, 743; Haney 
v. Marshall, 9 Md. 194; Slaughter v. Commonwealth, 13 Grat. 767; State v. 
Medbury, 3 R. I. 138 ; People v. Imlay, 20 Barb. 68 ; People v. Coleman, 4 
Cal. 46 ; People v. Thurber, 13 111. 544 ; Phoenix Insurance Co. v. Common- 
wealth, 5 Bush, 68; Ducat v. Chicago, 48 111. 172; Fire Department v. Noble, 
3 E. D. Smith, 441; Same v. Wright, ib. 453; Same v. Holfeustein, 16 Wis. 
136; Sears v. Commissioners of Warren Co., 36 Ind. 267; Cincinnati Health 
Association v. Rosenthal, 55 111. 85 ; State v. Fosdick, 21 La. Ann. 434. The 
constitutional provision does not apply to corporations. Warren Manuf. Co. v. 
iEtna Ins. Co., 2 Paine, 501 ; Paul v. Virginia, 8 Wall. 168. A discrimination 
between local freight on railroads and that which is extra territorial is not per- 
sonal, and therefore not forbidden by this clause of the Constitution. Shippers. 
Pennsylvania R.R. Co., 47 Penn. St. 338. A State cannot impose, for the priv- 
ilege of doing business within its limits, a heavier license tax upon non-residents 
than is required of residents. Ward v. Maryland, 12 Wall. 418. 

1 For decisions under this clause, see Ex parte Joseph Smith, 8 McLean, 133 ; 
Dow's Case, 18 Penn. St. 39 ; State v. Hufford, 28 Iowa, 391 ; Kingsbury's Case, 
106 Mass. 223; Matter of Clark, 9 Wend. 221 ; Johnson v. Riley, 13 Geo. 97 ; 
Matter of Fetter, 3 Zab. 311. The three cases last cited decide that the alleged 
offence need not be an offence at the common law ; it is sufficient that it be a 
crime against the State from which the accused has fled. But it must have been 
actually committed within the State reclaiming the alleged offender, and he must 
have been an actual fugitive therefrom. Ex parte Smith, supra. The whole 
subject was considered in Commonwealth of Kentucky v. Dennison, 24 How. 66. 
One Lago was indicted in Kentucky for enticing and assisting a slave to escape 
from his master, and a requisition was made upon the governor of Ohio for his 
surrender to the Kentucky authorities as a fugitive from justice. The governor 
of Ohio refused to surrender him, on the ground that the act with which he was 
charged was not an offence known to the laws of Ohio, and not an act affecting 
the public safety, or regarded as malum in se by the general judgment and con- 
science of civilized nations. Application was then made to the Supreme Court of 
the United States for a mandamus to compel the governor of Ohio to perform 
this duty. The application was denied, on the ground that, although the gov- 
ernor erred in his refusal, no power was delegated to the general government, 
either through the judicial or any other department, to employ any coercive 
means to compel him. See Matter of Voorhies, 32 N. J. 141. 

[19] 



* 16 CONSTITUTIONAL LIMITATIONS. [CH. II. 

[* 17] and credit shall be given in * each State to the public acts, 
records, and judicial proceedings of every other State. 1 
The last provisions that we shall here notice are that the United 
States shall guarantee to every State a republican form of govern- 
ment, 2 and that no State shall grant any title of nobility. 3 The 
purpose of these is to protect a Union founded on republi- 
[* 18] can principles, and composed entirely of * republican mem- 
bers against aristocratic and monarchial innovations. 4 

1 Const, of U. S. art. 4. This clause of the Constitution has been the sub- 
ject of a good deal of discussion in the courts. It is well settled that if the record 
of a judgment shows that it was rendered without service of process or appear- 
ance of the defendant, or if that fact can be shown without contradicting the reci- 
tals of the record, it will be treated as void in any other State, notwithstanding 
this constitutional provision. Benton v. Burgot, 10 S. & R. 242 ; Thurber v. 
Blackbourne, 1 N. H. 242 ; Hall v. Williams, 6 Pick. 232 ; Aldrich v. Kinney, 
4 Conn. 380; Bradshaw v. Heath, 13 Wend. 407; Robinson v. Ward's Execu- 
tors, 8 Johns. 86 ; Fenton v. Garlick, ib. 194 ; Kilbourn v. Woodworth, 5 Johns. 
37 ; Pawling v. Bird's Executors, 13 Johns. 192 ; Starbuck v. Murray, 5 Wend. 
161 ; Noyes v. Butler, 6 Barb. 613; Woodward v. Tremere, 6 Pick. 354 ; Lin- 
coln v. Tower, 2 McLean, 473; Westervelt v. Lewis, ib. 511 ; Bimelar v. Daw- 
son, 4 Scam. 536; Gleason v. Dodd, 4 Met. 333; Warren v. M'Carthy, 25 111. 
95 ; Rape v. Heaton, 9 Wis. 328 ; Wood v. Watkinson, 17 Conn. 500; Norwood 
v. Cobb, 24 Texas, 551 ; McLaurine v. Monroe, 30 Mo. 462 ; Commonwealth v. 
Blood, 97 Mass. 538. But whether it would be competent to show, in opposi- 
tion to the recitals of the record, that a judgment of another State was rendered 
without jurisdiction having been obtained of the person of the defendant, is not 
settled by the authorities. Many cases hold not. Field v. Gibbs, 1 Pet. C. C. 
156; Green v. Sarmiento, ib. 76; Lincoln v. Tower, 2 McLean, 473; Wester- 
velt v. Lewis, ib. 511 ; Roberts v. Caldwell, 5 Dana, 512 ; Hensley v. Force, 7 
Eng. 756; Pearce v. Olney, 20 Conn. 544; Hoxie v. Wright, 2 Vt. 2G3 ; New- 
comb v. Peck, 17 Vt. 302 ; Willcox v. Kassick, 2 Mich. 165 ; Bimelar v. Dawson, 
4 Scam. 536 ; Welch v. Sykes, 3 Gil. 197 ; Harbin v. Chiles, 20 Mo. 314 ; 
Wetherell v. Stillman, 65 Penn. St. 105. Other cases admit such evidence. 
Starbuck v. Murray, 5 Wend. 148 ; Holbrook v. Murray, ib. 161 ; Shumway v. 
Stillman, 6 Wend. 447 ; Borden v. Fitch, 15 Johns. 121 ; Hall v. Williams, 6 
Pick. 232.; Aldrich v. Kinney, 4 Conn. 380 ; Bradshaw v. Heath, 13 Wend. 407 ; 
Hoffman v. Hoffman, 46 N. Y. 30; Gleason v. Dodd, 4 Met. 333; Kane v. 
Cook, 8 Cal. 449; Norwood v. Cobb, 24 Texas, 551. The same defences may 
be made to a judgment when sued in another State which could have been made 
to it in the State where rendered. Hampton v. McConnel, 3 Wheat. 234; Mills 
v. Duryea, 7 Cranch, 484 ; Steele v. Smith, 7 W. & S. 447 ; Bank of the State 
v. Dalton, 9 How. 528. But no others : Green v. Van Buskirk, 7 Wall. 139 ; 
Christmas v. Russell, 5 Wall. 290 ; Cheever v. Wilson, 9 Wall. 108 ; People v. 
Dawell, 25 Mich. 247. 

2 Const, of U. S. art. 4, § 4. 3 Const, of U. S. art. 1, § 10. 

4 Federalist, Nos. 43 and 44. It does not fall within our province to discuss 
[20] 



CH. II.] THE CONSTITUTION OF THE UNITED STATES. * 18 

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

Where powers are conferred upon the general government, the 
exercise of the same powers by the States is impliedly prohibited, 
wherever the intent of the grant to the national government would 
be defeated by such exercise. On this ground it is held that the 
States cannot tax the agencies or loans of the general government ; 
since the power to tax, if possessed by the States in regard to these 
objects, might be so exercised as altogether to destroy such agen- 
cies and impair or even destroy the national credit. 1 And where by 
the national Constitution jurisdiction is given to the national courts 
with a view to the more efficient and harmonious working of the 
system organized under it, it is competent for Congress in its wis- 
dom to make that jurisdiction exclusive of the State courts. 2 On 
some other subjects State laws may be valid until the power of 
Congress is exercised, when they become superseded, either wholly, 
or so far as they are found inconsistent. The States may legislate 
on the subject of bankruptcy if there be no law of Congress which 
will conflict. 3 State laws for organizing and disciplining the mili- 
tia are valid except as they may conflict with national legislation ; 4 
and the States may constitutionally provide for punishing the coun- 
terfeiting of coin 5 and the passing of counterfeit money, 6 since 

these provisions. They have been much discussed in Congress within a few 
years, but in a party, rather than a judicial spirit. See Story on Const. 4th ed. 
c. 41 and notes. 

1 McCulloch v. Maryland, 4 Wheat. 316, 427 ; Weston v. Charleston, 2 Pet. 
449. See cases collected, post, p. 482. 

2 Martin v. Hunter's Lessee, 1 Wheat. 334 ; The Moses Taylor v. Hammons, 
4 Wall. 411 ; The Ad Hine v. Trevor, ib. 555. And see note to these cases in 
the Western Jurist, Vol. I. p. 241. 

3 Sturgis v. Crowninshield, 4 Wheat. 122 ; McMillan v. McNeill, ib. 209. 
And see post, pp. 293-94. 

4 Houston v. Moore, 5 Wheat. 1, 51. 

6 Harlan v. People, 1 Doug. Mich. 207. 

6 Fox v. Ohio, 5 How. 410 ; United States v. Marigold, 9 How. 560. And 
see Hendrick's Case, 5 Leigh, 707 ; Jett v. Commonwealth, 18 Grat. 933 ; Moore 
v. People, 14 How. 13. 

[21] 



* 18 CONSTITUTIONAL LIMITATIONS. [CH. II. 

these acts are offences against the State, notwithstanding they may 

be offences against the nation also. 
[* 19] * The tenth amendment to the Constitution provides that 

the powers not delegated to the United States by the Con- 
stitution, nor prohibited by it to the States, are reserved to the 
States respectively, or to the people. And it is to be observed of 
this instrument, that being framed for the establishment of a na- 
tional government, it is a settled rule of construction that the limi- 
tations it imposes upon the powers of government are in all cases 
to be understood as limitations upon the government of the Union 
only, except where the States are expressly mentioned. 1 

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

1 Barron v. Baltimore, 7 Pet. 243 ; Livingston's Lessee v. Moore, 7 Pet. 551 ; 
Fox v. Ohio, 5 How. 432 ; Smith v. Maryland, 18 How. 71 ; Buonaparte v. Cam- 
den & Amboy R.R. Co., Baldvv. 220 ; James v. Commonwealth, 12 S. & R. 221 ; 
Barker v. People, 3 Cow. G86 ; Colt v. Eves, 12 Conn. 243 ; Jane v. Common- 
wealth, 3 Met. (Ky.) 18; Lincoln v. Smith, 27 Vt. 336; Matter of Smith, 10 
Wend. 449 ; State v. Barnett, 3 Kansas, 250 ; Reed v. Rice, 2 J. J. Marsh. 45 ; 
North. Mo. R.R. Co. v. Maguire, 49 Mo. 490 ; Purvear v. Commonwealth, 5 
Wall. 475; Twitchell v. Commonwealth, 7 Wall. 321. For instance, though the 
right of trial by jury is preserved by the Constitution of the United States, the 
States may, nevertheless, if they choose, provide for the trial of all offences 
against the States, as well as the trial of civil cases in the State courts, without 
the intervention of a jury. 
[22] 



CH. II.] THE CONSTITUTION OP THE UNITED STATES. * 19 

the nation are defined and their punishment prescribed by acts of 
Congress. 1 

1 Demurrer to an indictment for a libel upon the President and Congress. By 
the court: "The only question which this case presents is, whether the circuit 
courts can exercise a common-law jurisdiction in criminal cases. . . . The gen- 
eral acquiescence of legal men shows the prevalence of opinion in favor of the 
negative of the proposition. The course of reasoning which leads to this con- 
clusion is simple, obvious, and admits of but little illustration. The powers of 
the general government are made up of concessions from the several States ; 
whatever is not expressly given to the former, the latter expressly reserve. The 
judicial power of the United States is a constitutional part of these concessions : 
that power is to be exercised by courts organized for the purpose, and brought 
into existence by an effort of the legislative power of the Union. Of all the 
courts which the United States may, under their general powers, constitute, one 
only, the Supreme Court, possesses jurisdiction derived immediately from the 
Constitution, and of which the legislative power cannot deprive it. All other 
courts, created by the general government, possess no jurisdiction but what is 
given them by the power that created them, and can be vested with none but 
what the power ceded to the general government will authorize them to confer. 
It is not necessary to inquire whether the general government, in any and what 
extent, possesses the power of conferring on its courts a jurisdiction in cases 
similar to the present ; it is enough that such jurisdiction has not been conferred 
by any legislative act, if it does not result to those courts as a consequence of 
their creation." United States v. Hudson, 7 Cranch, 32. See United States v. 
Coolidge, 1 Wheat. 415. " It is clear there can be no common law of the United 
States. The federal government is composed of twenty-four sovereign and 
independent States, each of which may have its local usages, customs, and com- 
mon law. There is no principle which pervades the Union, and has the authority 
of law, that is not embodied in the Constitution or laws of the Union. The com- 
mon law could be made a part of our federal system only by legislative adop- 
tion." Per McLean, J., in Wheaton v. Peters, 8 Pet. 658. See also Kendall 
v. United States, 12 Pet. 524; Lorman v. Clarke, 2 McLean, 568; U. S. v. Lan- 
caster, ib. 433 ; U. S. v. New Bedford Bridge, 1 Wood. & M. 435 ; U. S. v. Wil- 
son, 3 Blatch. 435. As to the adoption of the common law by the States, see 
Van Nest v. Pacard, 2 Pet. 144, per Story, J. ; post, p. 23, and cases cited in 
notes. 

[23] 



* 21 CONSTITUTIONAL LIMITATIONS. [CH. III. 



[*21] * CHAPTER III. 

THE FORMATION AND AMENDMENT OF STATE CONSTITUTIONS. 

The Constitution of the United States assumes the existence 
of thirteen distinct State governments, over whose people its au- 
thority was to be extended if ratified by conventions chosen for 
the purpose. Each of these States was then exercising the powers 
of government under some form of written constitution, and that 
instrument would remain unaffected by the adoption of the national 
Constitution, except in those particulars in which the two would 
come in conflict ; and as to those, the latter would modify and 
control the former. 1 But besides this fundamental law, every State 
had also a body of laws, prescribing the rights, duties, and obli- 
gations of persons within its jurisdiction, and establishing those 
minute rules for the various relations of life which cannot be prop- 
erly incorporated in a constitution, but must be left to the regula- 
tion of the ordinary law-making power. 

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

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

1 State v. Cape Girardeau, &c. R.R. Co., 48 Mo. 468 ; Mayor, &c. of Mobile 
v. Dargan, 45 Ala. 310. 
[24] 



CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. * 21 

habits became modified, and as civilization advanced, and new in- 
ventions introduced new wants and conveniences,, and new modes 
of business. Springing from the very nature of the people them- 
selves, and developed in their own experience, it was obviously the 
body of laws best adapted to their needs, and as they took with 
them their nature, so also they would take with them these laws 
whenever they should transfer their domicile from one country to 
another. 

* To eulogize the common law is no part of our pres- [* 22] 
ent purpose. Many of its features were exceedingly harsh 
and repulsive, and gave unmistakable proofs that they had their 
origin in times of profound ignorance, superstition, and barbarism. 
The feudal system, which was essentially a system of violence, dis- 
order, and rapine, 1 gave birth to many of the maxims of the com- 
mon law ; and some of these, long after that system has passed 
away, may still be traced in our law, especially in the rules which 
govern the acquisition, control, and enjoyment of real estate. The 
criminal code was also marked by cruel and absurd features, some 
of which have clung to it with wonderful tenacity, even after the 
most stupid could perceive their inconsistency with justice and 
civilization. But, on the whole, the system was the best foundation 
on which to erect an enduring structure of civil liberty which the 
world has ever known. It was the peculiar excellence of the com- 
mon law of England that it recognized the worth, and sought es- 
pecially to protect the rights and privileges of the individual man. 
Its maxims were those of a sturdy and independent race, accus- 
tomed in an unusual degree to freedom of thought and action, and 
to a share in the administration of public affairs ; and arbitrary 
power and uncontrolled authority were not recognized in its prin- 
ciples. Awe surrounded, and majesty clothed the king, but the 
humblest subject might shut the door of his cottage against him, 
and defend from intrusion that privacy which was as sacred as the 
kingly prerogatives. 2 The system was the opposite of servile ; its 

1 " A feudal kingdom was a confederacy of a numerous body, who lived in a 
state of war against each other, and of rapine towards all mankind, in which the 
king, according to his ability and vigor, was either a cipher or a tyrant, and a 
great portion of the people were reduced to personal slavery." Mackintosh, 
History of England, c. 3. 

2 See post, p. 299. 

[25> 



* 22 CONSTITUTIONAL LIMITATIONS. [CH. III. 

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

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

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

king and subject alike might understand and observe 
them. Such was the purpose of the first gre"at statute, promul- 
gated at a time when the legislative power was exercised by the 
king alone, and which is still known as the Magna Charta of King 
John. 1 Such also was the purpose of the several confirmations of 
that charter, as well as of the Petition of Right, 2 and the Bill of 
Rights, 3 each of which became necessary by reason of usurpations. 
But further statutes also became needful because old customs and 
modes of business were unsuited to new conditions of things, when 
property had become more valuable, wealth greater, commerce more 
extended, and when all these changes had brought with them new 
desires and necessities, and also new dangers against which society 
as well as the individual subject needed protection. For this reason 
the Statute of Wills, 4 and the Statute of Frauds and Perjuries 5 be- 
came important; and the Habeas Corpus Act 6 was also found 
necessary, not so much to change the law, 7 as to secure existing 
principles of the common law against being habitually set aside 
and violated by those in power. 

1 It is justly observed by Sidney that " Magna Charta was not made to restrain 
the absolute authority, for no such thing was in being or pretended (the folly of 
such visions seeming to have been reserved to complete the misfortunes and 
ignominy of our age), but it was to assert the native and original liberties of our 
nation by the confession of the king then being, that neither he nor his successors 
should any way encroach upon them." Sidney on Government, c. 3, sec. 27. 

2 1 Charles I. c. 1. 

3 1 William & Mary, Sess. 2, c. 2. 

4 32 Henry VIII. c. 7, and 34 and 35 Henry VIH. c. 5. 

5 29 Charles II. c. 3. 

6 31 Charles II. c. 2. 

7 " I dare not advise to cast the laws into a new mould. The work which I 

[26] 



CH. III.] FORMATION AND AMENDMENT OP CONSTITUTIONS. * 23 

From the first the colonists in America claimed the benefit and 
protection of the common law. In some particulars, however, the 
common law as then existing in England was not suited to their 
condition and circumstances in the new country, and those partic- 
ulars they omitted as it was put in practice by them. 1 They 
also claimed the benefit of * such statutes as from time to [* 24] 
time had been enacted in modification of this body of 
rules. 2 And when the difficulties with the home government sprung 

propound tendeth to the priming and grafting of the law, and not the plowing 
up and planting it again, for such a remove I should hold for a perilous innova- 
tion." Bacon's Works, Vol. II. p. 231, Phil. Ed. 1852. 

1 " The common law of England is not to be taken, in all respects, to be that 
of America. Our ancestors brought with them its general principles, and 
claimed it as their birthright; but they brought with them and adopted only that 
portion which was applicable to their condition." Story, J., in Van Nest v. 
Packard, 2 Pet. 144. " The settlers of colonies in America did not carry with 
them the laws of the land as being bound by them wherever they should settle. 
They left the realm to avoid the inconveniences and hardships they were under, 
where some of these laws were in force; particularly ecclesiastical laws, those 
for payment of tithes and others. Had it been understood that they were to 
carry these laws with them, they had better have stayed at home among their 
friends, unexposed to the risks and toils of a new settlement. They carried with 
them a right to such parts of laws of the land as they should judge advantageous 
or useful to them ; a right to be free from those they thought hurtful, and a right 
to make such others as they should think necessary, not infringing the general 
rights of Englishmen ; and such new laws they were to form as agreeable as 
might be to the laws of England." Franklin, Works by Sparks, Vol. IV. p. 271. 
See, also, Chisholm v. Georgia, 2 Dall. 435 ; Commonwealth v. Knowlton, 2 
Mass. 534; Commonwealth v. Hunt, 4 Met. 122; Mayo v. Wilson, 1 N. Hr 58 ; 
Houghton v. Page, 2 N. H. 44 ; State v. Rollins, 8 K H. 550 ; State v. Buchanan, 
5 H. & J. 356 ; Lindsey v. Coats, 1 Ohio, 245 ; Bloom v. Richards, 2 Ohio, n. s. 390 ; 
Lyle v. Richards, 9 S. & R. 330 ; Craft v. State Bank, 7 Ind. 219 ; Dawson v. 
Coffman, 28 Ind. 220 ; Bogardus v. Trinity Church, 4 San.df. Ch. 757 ; Morgan 
v. King, 30 Barb. 9 ; Lansing v. Stone, 37 Barb. 15 ; Simpson v. State, 5 Yerg. 
356 ; Stout v. Keyes, 2 Doug. Mich. 184 ; Lorman v. Benson, 8 Mich. 18 ; Pier- 
son v. State, 12 Cal. 149 ; Norris v. Harris, 15 Cal. 226 ; Hamilton v. Kneeland, 
1 Nev. 40. The courts of one State will presume the common law of a sister 
State to be the same as their own in the absence of evidence to the contrary. 
Abell v. Douglass, 4 Denio, 305 ; Kermott v. Ayer, 11 Mich. 181 ; Schurman v. 
Marley, 29 Ind. 458. 

2 The acts of Parliament passed after the settlement of a colony were not in 
force therein, unless made so by express words, or by adoption. Commonwealth 
v. Lodge, 2 Grat. 579 ; Pemble v. Clifford, 2 McCord, 31. See Swift v. Tousey, 
5 Ind. 196 ; Baker v. Mattocks, Quincy, 72 ; Cathcart v. Robinson, 5 Pet. 280. 
Those amendatory of the common law, if suited to the condition of things in 

[27] 



* 24 CONSTITUTIONAL LIMITATIONS. [CH. III. 

up, it was a source of immense moral power to the colonists that 
they were able to show that the rights they claimed were conferred 
by the common law, and that the king and Parliament were seeking 
to deprive them of the common birthright of Englishmen. Did 
Parliament attempt to levy taxes in America, the people demanded 
the benefit of that maxim with which for many generations every 
intelligent subject had been familiar, that those must vote the tax 
who are to pay it. 1 Did Parliament order offenders against the laws 
in America to be sent to England for trial, every American was 
roused to indignation, and protested against the trampling under 
foot of that time-honored principle that trials for crime must be by 
a jury of the vicinage. Contending thus behind the bulwarks of 
the common law, Englishmen would appreciate and sympathize 
with their position, and Americans would feel doubly strong in a 
cause that was right not only, but the justice of which must be 
confirmed by an appeal to the consciousness of their enemies them- 
selves. 

The evidence of the common law consisted in part of the declar- 
atory statutes we have mentioned, 2 in part of the commentaries of 
such men learned in the law as had been accepted as authority, 
but mainly in the decisions of the courts applying the 
j-* 25] * law to actual controversies. While .colonization con- 
America, were generally adopted by tacit consent. For the differing views taken 
by English and American statesmen upon the general questions here discussed, 
see the observations by Governor Pownall, and the comments of Franklin 
thereon, 4 Works of Franklin, by Sparks, 271. 

1 " The blessing of Judah and Issachar will never meet; that the same people 
or nation should be both the lion's whelp and the ass between burdens ; neither 
will it be that a people overlaid with taxes should ever become valiant and mar- 
tial. It is true that taxes levied by consent of the State do abate men's courage 
less, as it hath been seen notably in the exercise of the Low Countries, and in 
some degree in the subsidies of England, for you must note that we speak now 
of the heart and not of the purse ; so that although the same tribute or tax laid 
by consent or by imposing be all one to the purse* yet it works diversely upon 
the courage. So that you may conclude that no people overcharged with tribute 
is fit for empire." Lord Bacon on the True Greatness of Kingdoms. 

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

[28] 



CH. III.] FORMATION AND AMENDMENT OP CONSTITUTIONS. * 25 

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

The colonies also had legislatures of their own, by which laws 
had been passed which were in force at the time of the separation, 
and which remained unaffected thereby. When, therefore, they 
emerged from the colonial condition into that of independence, the 
laws which governed them consisted, first, of the common law of 
England, so far as they had tacitly adopted it as suited to their 
condition ; second, of the statutes of England, or of Great Britain, 
amendatory of the common law, which they had in like manner 
adopted ; and third, of the colonial statutes. 1 The first and second 
constituted the American common law, and by this in great part 
are rights adjudged and wrongs redressed in the American States 
to this day. 2 

* Every colony had also its charter, emanating from the [* 26] 

1 The like condition of things is found to exist in the new States formed and 
admitted to the Union since the Constitution was adopted. Congress creates 
territorial governments of different grades, but generally with plenary legislative 
power either in the governor and judges, a territorial council, or a territorial 
legislature chosen by the people, and the authority of this body extends to all 
rightful subjects of legislation, subject, however, to the disapproval of Congress. 
Vincennes University v. Indiana, 14 How. 273 ; Miners' Bank v. Iowa, 12 
How. 1. The legislation, of course, must not be in conflict with the law of 
Congress conferring the power to legislate, but a variance from it may be sup- 
posed approved by that body, if suffered to remain without disapproval for a 
series of years after being duly reported to it. Clinton v. Englebrect, 13 Wall. 
446. 

2 A few of the States, to get rid of confusion in the law, deemed it desirable 
to repeal the acts of Parliament, and to re-enact such portions of them as were 
regarded important here. See the Michigan repealing statue, copied from that 
of Virginia, in Code of 1820, p. 459. In some of the new States there were 
also other laws in force than those to which we have above alluded. Although it 

[29] 



* 26 CONSTITUTIONAL LIMITATIONS. [CH. III. 

Crown, and constituting its colonial constitution. All but two 
of these were swept away by the whirlwind of revolution, and 

Las been said in La Plaisance Bay Harbor Co. v. The City of Monroe, Wal. 
Ch. 155, and Depew i>. Trustees of Wabash & Erie Canal, 5 Ind. 8, that the 
ordinance of 1787 was superseded in each of the States formed out of the 
North-West Territory by the adoption of a State constitution, and admission to 
the Union, yet the weight of judicial authority is probably the other way. In 
Hogg v. The Zanesville Canal Manufacturing Co., 5 Ohio, 410, it was held that 
the provision of the ordinance that the navigable waters of the territory, and the 
carrying-places between should be common highways and for ever free, was per- 
manent in its obligation, and could not be altered without the consent both of the 
people of the State, and of the United States, given through their representatives. 
" It is an article of compact; and until we assume the principle that the sover- 
eign power of a State is not bound by compact, this clause must be considered 
obligatory." Justices McLean and Leavitt, in Spooner v. McConnell, 1 Mc- 
Lean, 337, examine this subject at considerable length, and both arrive at the 
same conclusion with the Ohio court. The view taken of the ordinance in that 
case was, that such parts of it as were designed temporarily to regulate the gov- 
ernment of the territory were abolished by the change from a territorial to a 
State government, while the other parts, which were designed to be permanent, 
are unalterable except by common consent. Some of these, however, being 
guaranteed by the federal Constitution, afterwards adopted, may be regarded 
as practically annulled, while any others which are opposed to the constitution of 
any State formed out of the territory must also be considered as annulled by 
common consent; the people of the State assenting in forming their constitution, 
and Congress in admitting the State into the Union under it. The article in 
regard to navigable waters is therefore still in force. The same was also said in 
regard to the article prohibiting slavery, though that also may now be regarded 
as practically annulled by the amendment to the federal Constitution covering 
the same ground. The like opinion was subsequently expressed in Palmer v. 
Commissioners of Cuyahoga Co., 3 McLean, 226, and in Jolly v. Terre Haute 
Drawbridge Co., 6 McLean, 23?. See also Strader v. Graham, 10 How. 82 ; 
Doe v. Douglass, 8 Blackf. 12 ; Connecticut Mutual Life Ins. Co. v. Cross, 18 
Wis. 109 ; Milwaukee Gaslight Co. v. Schooner Gamecock, 23 Wis. 141 ; Wis- 
consin River Improvement Co. v. Lyons, 30 Wis. 61. Compare Woodburn v. 
Kilbourn Manuf. Co., 1 Abb. U. S. 158. In the cases in the first and third Mc- 
Lean, however, the opinion was expressed that the States might lawfully improve 
the navigable waters and the carrying-places between, and charge tolls upon the 
use of the improvement to obtain reimbursement of their expenditures. 

In some of the States formed out of the territory acquired by the United States 
from foreign powers, traces will be found of the laws existing before the change 
of government. Louisiana has a code peculiar to itself, based upon the civil law. 
Much of Mexican law, and especially as regards lands and land titles, is retained 
in the systems of Texas and California. In Michigan, when the acts of Parlia- 
ment were repealed, it was also deemed important to repeal all laws derived from 

[30] 



CH. III.] FORMATION AND AMENDMENT OP CONSTITUTIONS. * 26 

others substituted which had been framed by the people themselves, 
through the agency of conventions which they had chosen. The 
exceptions were the States of Connecticut and Rhode Island, each 
of which had continued its government as a State under the colo- 
nial charter, finding it sufficient and satisfactory for the time being, 
and accepting it as the constitution for the State. 1 

New States have since, from time * to time, formed con- [* 27] 
stitutions either regularly in pursuance of enabling acts 
passed by Congress, or irregularly by the spontaneous action of 
the people, or under the direction of the legislative or executive 
authority of the Territory to which the State succeeded. Where 
irregularities existed, they must be regarded as having been cured 
by the subsequent admission of the State into the Union by Con- 
gress ; and there were not wanting in the case of some States 
plausible reasons for insisting that such admission * had [* 28] 
become a matter of right, and that the necessity for an 
enabling act by Congress was dispensed with by the previous stip- 
ulations of the national government in acquiring the Territory from 
which such States were formed. 2 Some of these constitutions 
pointed out the mode for their own modification ; others were 
silent on that subject ; but it has been assumed that in such cases 

France, through the connection with the Canadian provinces, including the 
Continue de Paris, or ancient French common law. In the mining States and 
Territories a peculiar species of common law, relating to mining rights and titles, 
has sprung up, having its origin among the miners, but recognized and enforced 
by the courts. 

1 It is worthy of note, that the first case in which a legislative enactment was 
declared unconstitutional and void, on the ground of incompatibility with the 
constitution of the State, was decided under one of these royal charters. The 
case was that of Trevett v. Weeden, decided by the Superior Court of Rhode */ 
Island in 1786. See Arnold's History of Rhode Island, Vol. II. c. 24. The 
case is further referred to, post, p. 160, n. 

2 This was the claim made on behalf of Michigan ; it being insisted that the 
citizens, under the provisions of the ordinance of 1787, whenever the Territory 
acquired the requisite population, had an absolute right to form a constitution 
and be admitted to the Union under it. See Scott v. Detroit Young Men's 
Society's Lessee, 1 Doug. Mich. 119, and the contrary opinion in Myers v. Man- 
hattan Bank, 20 Ohio, 283. The debates in the Senate of the United States on 
the admission of Michigan to the Union go fully into this question. See Benton's 
Abridgment of Congressional Debates, Vol. XIII. pp. 69-72. And as to the 
right of the people of a Territory to originate measures looking to an application 
for admission to the Union, see Opinions of Attorneys-General, Vol. II. p. 726. 

[31] 



V 
* 28 CONSTITUTIONAL LIMITATIONS. [CH. III. 

the power to originate proceedings for that purpose rested with 
the legislature of the State, as the department most nearly repre- 
senting its general sovereignty ; and this is doubtless the correct 
view to take of this subject. 1 

The theory of our political system is that the ultimate sover- 
eignty is in the people, from whom springs all legitimate author- 
ity. 2 The people of the Union created a national constitution, and 
conferred upon it powers of sovereignty over certain subjects, and 
the people of each State created a State government, to exercise 
the remaining powers of sovereignty so far as they were disposed 
to allow them to be exercised at all. By the constitution which 
they establish, they not only tie up the hands of their official 
agencies, but their own hands as well, and neither the officers of 
the State, nor the whole people as an aggregate body, are at liberty 
to take action in opposition to this fundamental law. But in 
every State, although all persons are under the protection of the 
government, and obliged to conform their action to its laws, there 
are always some who are altogether excluded from participation 
in the government, and are compelled to submit to be ruled by 
an authority in the creation of which they have no choice. The 
political maxim, that government rests upon the consent of the 
governed, appears, therefore, to be practically subject to many 
exceptions ; and when we say the sovereignty of the State is 
vested in the people, the question very naturally presents itself, 
What are we to understand by The People as used in this con- 
nection ? 
[* 29] * What should be the correct rule upon this subject, it 
does not fall within our province to consider. Upon this 
men will theorize ; but the practical question lies back of the for- 
mation of the Constitution, and is addressed to the people them- 
selves. As a practical fact, the sovereignty is vested in those 
persons who are permitted by the constitution of the State to 
exercise the elective franchise. These persons may have been 
designated by description in the enabling act of Congress permit- 
ting the formation of the constitution, if any such there were, or 
the convention which framed the constitution may have determined 

1 See Jameson on Constitutional Conventions, c. 8. 

2 McLean, J., in Spooner v. McConnell, 1 McLean, 347; Potter's Dwarris 
on Stat. c. 1. 

[32] 



CH. III.] FORMATION AND AMENDMENT OP CONSTITUTIONS. * 29 

the qualifications of electors without external dictation. In either 
case, however, it was essential to subsequent good order and satis- 
faction with the government, that those classes in general should 
be admitted to a voice in its administration, whose exclusion 
on the ground of want of capacity or of moral fitness could not 
reasonably and to the general satisfaction be defended. 

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

The theory in these cases we take to be that classes are ex- 
cluded because they lack either the intelligence, the virtue, or the 
liberty of action essential to the proper exercise of the elective 
franchise. But the rule by which the presence or absence of these 
qualifications is to be determined, it is not easy to establish on 
grounds the reason and propriety of which shall be accepted by 
all. It must be one that is definite and easy of application, and 
it must be made permanent, or an accidental majority may at any 
time change it, so as to usurp all power to themselves. But to be 
definite and easy of application, it must also be arbitrary. The 
infant of tender years is wanting in competency, but he is daily 
acquiring it, and a period is fixed at which he shall conclusively 
be' presumed to possess what is requisite. The alien may know 
nothing of our political system and laws, and he is 
excluded until * he has been domiciled in the country [* 30] 
for a period judged to be sufficiently long to make him 
familiar with its institutions ; races are sometimes excluded 
arbitrarily ; and there have been times when in some of the 
States the possession of a certain amount of property, or the 
capacity to read, were regarded as essential to satisfactory proof 
of sufficient freedom of action and intelligence. 1 

1 State v. Woodruff, 2 Day, 504 ; Catlin v. Smith, 2 S. & R. 267 ; Opinions of 

3 [33] 



* 30 CONSTITUTIONAL LIMITATIONS. [CH. III. 

Whatever the rule that is once established, it must remain fixed 
until those who by means of it have the power of the State put 
into their hands see fit to invite others to participate with them in 
its exercise. Any attempt of the excluded classes to assert their 
right to a share in the government, otherwise than by operating 
upon the public opinion of those who possess the right of suffrage, 
would be regarded as an attempt at revolution, to be put down 
by the strong arm of the government of the State, assisted, if need 
be, by the military power of the Union. 1 

In regard to the formation and amendment of State constitu- 
tions, the following appear to be settled principles of American 
constitutional law : — 

I. The people of the several Territories may form for them- 
selves State constitutions whenever enabling acts for that purpose 
are passed by Congress, but only in the manner allowed by such 
enabling acts, and through the action of such persons as the en- 
abling acts shall clothe with the elective franchise to that end. 
If the people of a Territory shall, of their own motion, without 
such enabling act, meet in convention, frame and adopt a consti- 
tution, and demand admission to the Union under it, such action 
does not entitle them, as matter of right, to be recognized as 
a State ; but the power that can admit can also refuse, and the 
territorial status must be continued until Congress shall be satis- 
fied to suffer the Territory to become a State. There are always 
in these cases questions of policy as well as of constitutional law 
to be determined by the Congress before admission becomes a 
matter of right, — whether the constitution formed is republi- 
can ; whether the proper State boundaries have been fixed upon ; 
whether the population is sufficient ; whether the proper qualifi- 
cations for the exercise of the elective franchise have been agreed 
to ; whether any inveterate evil exist in the Territory which is 

Judges, 18 Pick. 575. For some local elections it is quite common still to require 
property qualification or the payment of taxes in the voter ; but statutes of this 
description are generally construed liberally. See Crawford v. Wilson, 4 Barb. 
504. Many special statutes, referring to the people of a municipality the ques- 
tion of voting aid to internal improvements, have confined the right of voting on 
the question to tax-payers. 

1 The case of Rhode Island and the " Dorr Rebellion," so popularly known, 
will be fresh in the minds of all. For a discussion of some of the legal aspects 
of the case, see Luther v. Borden, 7 How. 1. 

[34] 



CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. * 30 

now subject to control, but which might be perpetuated under a 
State government, — these and the like questions, in which the 
whole country is interested, cannot be finally solved by the people 
of the Territory for themselves, but the final decision must rest 
with Congress, and the judgment must be favorable before admis- 
sion can be claimed or expected. 

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

III. But- the will of the people to this end can only be expressed 
in the legitimate modes by which such a body politic can act, and 
which must either be prescribed by the constitution whose revision 
or amendment is sought, or by an act of the legislative department 
of the State, which alone would be authorized to speak for the 
people upon this subject, and to point out a mode for the expres- 
sion of their will in the absence of any provision for amendment 
or revision contained in the constitution itself. 1 

1 Opinions of the Judges, 6 Cush. 573 ; Collier v. Frierson, 24 Ala. 100. The 
first constitution of New York contained no provision for its own amendment, 
and Mr. Hammond, in his Political History of New York, Vol. I. c. 26, gives a 
very interesting account of the controversy before the legislature and in the coun- 
cil of revision as to the power of the legislature to call a convention for revision, 
and as to the mode of submitting its work to the people. In Collier v. Frierson, 
24 Ala. 108, it appeared that the legislature had proposed eight different amend- 
ments to be submitted to the people at the same time ; the people had approved 
them, and all the requisite proceedings to make them a part of the constitution 
had been had, except that in the subsequent legislature the resolution for their 
ratification had by mistake omitted to recite one of them. On the question 
whether this one had been adopted, we quote from the opinion of the court : 
" The constitution can be amended in but two ways; either by the people who 
originally framed it, or in the mode prescribed by the instrument itself. If the 
last mode is pm-sued, the amendments must be proposed by two-thirds of each 
house of the General Assembly : they must be published in print, at least three 
months before the next general election for representatives ; it must appear from 
the returns made to the Secretary of State that a majority of those voting for 

[35] 



* 32 CONSTITUTIONAL LIMITATIONS. [CH. III. 

[* 32] * IV. In accordance with universal practice, and from 
the very necessity of the case, amendments to an ex- 
isting constitution, or entire revisions of it, must be prepared 
and matured by some body of representatives chosen for the pur- 
pose. It is obviously impossible for the whole people to meet, 
prepare, and discuss the proposed alterations, and there seems 
to be'no feasible mode by which an expression of their will can 
be obtained, except by asking it upon the single point of assent 
or disapproval. But no body of representatives, unless specially 
clothed with power for that purpose by the people when choosing 
them, can rightfully take definitive action upon amendments or 
revisions ; they must submit the result of their deliberations to 
the people — who alone are competent to exercise the powers of 
sovereignty in, framing the fundamental law — for ratification or 
rejection. The constitutional convention is the representative of 
sovereignty only in a very qualified sense, and for the specific 
purpose, and with the restricted authority to put in proper form 
the questions of amendment upon which the people are to 
[* 33] pass ; but the changes in the * fundamental law of the 
State must be enacted by the people themselves. 1 

representatives have voted in favor of the proposed amendments, and they must 
be ratified by two-thirds of each house of the next General Assembly after such 
election, voting by yeas and nays, the proposed amendments having been read at 
each session three times on three several days in each house. We entertain no 
doubt that to change the constitution in any other mode than by a convention, 
every requisition which is demanded by the instrument itself must be observed, 
and the omission of any one is fatal to the amendment. We scarcely deem any 
argument necessary to enforce this proposition. The constitution is the supreme 
and paramount law. The mode by which amendments are to be made under it 
is clearly defined. It has been said that certain acts are to be done, certain 
requisitions are to be observed, before a change can be effected. But to what 
purpose are those acts required or those requisitions enjoined, if the legislature or 
any department of the government can dispense with them ? To do so would be 
to violate the instrument which they are sworn to support, and every principle of 
public law and sound constitutional policy requires the courts to pronounce against 
any amendment which is not shown to have been made in accordance with the 
rules prescribed by the fundamental law." See also State v. McBride, 4 Mo. 
303. 

1 See upon this subject Jameson on the Constitutional Convention, §§ 415-418, 
and 479-520. This work is so complete and satisfactory in its treatment of the 
general subject, as to leave little to be said by one who shall afterwards attempt 
to cover the same ground. The Supreme Court of Missouri have expressed the 
opinion tliat it was competent for a convention to put a new constitution in force 

[36] 



CH. III.] FORMATION AND AMENDMENT OP CONSTITUTIONS. * 33 

Y. The power of the people to amend or revise their constitu- 
tions is limited by the Constitution of the United States in the 
following particulars : — 

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

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

YI. Subject to the foregoing principles and limitations, each 
State must judge for itself what provisions shall be inserted in its 
constitution ; how the powers of government shall be apportioned 
in order to their proper exercise ; what protection shall be thrown 
around the person or property of the citizen ; and to what extent 
private rights shall be required to yield to the general 
good. 3 * And the courts of the State, still more the [* 34] 
courts of the Union, would be precluded from inquiring 

without submitting it to the people. State v. Neal, 42 Mo. 119. But this was 
obiter. 

1 Const, of U. S. art. 4, § 4 ; Federalist, No. 43. 

3 Cummings v. Missouri, 4 Wall. 277; Jefferson Branch Bank v. Skelly, 1 
Black, 436; State v. Keith, 63 N. C. 140; Jackoway v. Denton, 25 Ark. 525; 
Union Bank v. State, 9 Yerg. 490 ; Girdner v. Stephens, 1 Heis. 280 ; Railroad 
Co. v. McClure, 10 Wall. 511; White v. Hart, 13 Wall. 649. 

3 Matter of the Reciprocity Bank, 22 N. Y. 9; McMullen v. Hodge, 5 Texas, 
34; Matter of Oliver Lee & Co.'s Bank, 21 N. Y. 9. In the case last cited, 
Denio, J., says : " The [constitutional] convention was not obliged, like the legis- 
lative bodies, to look carefully to the preservation of vested rights. It was com- 
petent to deal, subject to ratification by the people, and to the Constitution of 
the federal government, with all private and social rights, and with all the exist- ' 

[37] 



* 34 CONSTITUTIONAL LIMITATIONS. [CH. III. 

into the justice of their action, or questioning its validity, because 
of any supposed conflict with fundamental rules of right or of 
government, unless they should be able to show collision at some 
point between the instrument thus formed and that paramount 
law which constitutes, in regard to the subjects it covers, the 
fundamental rule of action throughout the whole United States. 1 

How far the constitution of a State shall descend into the par- 
ticulars of government is a question of policy addressed to the 
convention which forms it. Certain things are to be looked for 
in all these instruments ; though even as to these there is great 
variety, not only of substance, but also in the minuteness of their 
provisions to meet particular cases. 

I. We are to expect a general framework of government to be 
designed, under which the sovereignty of the people is to be exer- 
cised by representatives chosen for the purpose, in such manner 

ing laws and institutions of the State. If the convention had so willed, and the 
people had concurred, all former charters and grants might have been annihilated. 
When, therefore, we are seeking for the true construction of a constitutional pro- 
vision, we are constantly to bear in mind that its authors were not executing a 
delegated authority, limited by other constitutional restraints, but are to look 
upon them as the founders of a State, intent only upon establishing such princi- 
ples as seemed best calculated to produce good government and promote the pub- 
lic happiness, at the expense of any and all existing institutions which mio-ht 
stand in their way." 

1 All the State constitutions now contain within themselves provisions for their 
amendment. Some require the question of calling a convention to revise the 
constitution to be submitted to the people at stated periods ; others leave it to the 
legislature to call a convention or to submit to the people the question of calling 
one; while the major part allow the legislature to mature specific amendments to 
be submitted to the people separately, and these become a part of the constitu- 
tion if adopted by the requisite vote. 

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

[38] 



CH. III.] FORMATION AND AMENDMENT OP CONSTITUTIONS. * 34 

as the instrument provides, and with such reservations as it 
makes. 

II. Generally the qualifications for the right of suffrage will 
be declared, as well as the conditions under which it shall be 
exercised. 

III. Separate departments will be created for the exercise of 
legislative, executive, and judicial power, and care taken to keep 
the three as separate and distinct as possible, except so far as 
each is made a check upon the other to keep it within proper 
bounds, or to prevent hasty and improvident action. The 
executive * is a check upon the legislature in the veto [* 35] 
power, which most States allow ; the legislature is a check 

upon both the other departments through its power to prescribe 
rules for the exercise of their authority, and through its power 
to impeach their officers ; and the judiciary is a check upon the 
legislature by means of its authority to annul unconstitutional 
laws. 

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

V. We shall also expect a declaration of rights for the pro- 
tection of individuals and minorities. This declaration usually 
contains the following classes of provisions : — 

1. Those declaratory of the general principles of republican 
government; such as, that all freemen, when they form asocial 
compact, are equal, and no man, or set of men, is entitled to ex- 
clusive, separate public emoluments or privileges from the com- 
munity, but in consideration of public services ; that absolute, 
arbitrary power over the lives, liberty, and property of freemen 
exists nowhere in a republic, not even in the largest majority ; 
that all power is inherent in the people, and all free governments 
are founded on their authority, and instituted for their peace, 
safety, happiness, security, and the protection of property ; that 
for the advancement of these ends they have at all times an in- 
alienable and indefeasible right to alter, reform, or abolish their 
government in such manner as they may think proper; that all 
elections shall be free and equal ; that no power of suspending 
the laws shall be exercised except by the legislature or its author- 

[39] 



* 35 CONSTITUTIONAL LIMITATIONS. [CH. III. 

ity; that standing armies are not to be maintained in time of 
peace ; that representation shall be in proportion to population ; 
that the people shall have the right freely to assemble to consult 
of the common good, to instruct their representatives, and petition 
for redress of grievances ; and the like. 

2. Those declaratory of the fundamental rights of the citizen : 
as that all men are by nature free and independent, and have cer- 
tain inalienable rights, among which are those of enjoying and 
defending life and liberty, acquiring, possessing, and protecting 
property, and pursuing and obtaining safety and happiness ; that 

the right to property is before and higher than any consti- 
[* 36] tutional * sanction ; that the free exercise and enjoyment 

of religious profession and worship, without discrimination 
or preference, shall for ever be allowed ; that every man may freely 
speak, write, and publish his sentiments on all subjects, being re- 
sponsible for the abuse of that right ; that every man may bear 
arms for the defence of himself and of the State ; that the right 
of the people to be secure in their persons, houses, papers, and 
effects against unreasonable searches and seizures, shall not .be 
violated, nor shall soldiers be quartered upon citizens in time of 
peace ; and the like. 

3. Those declaratory of the principles which ensure to the citizen 
an impartial trial, and protect him in his life, liberty, and property 
against the arbitrary action of those in authority : as that no bill 
of attainder or ex post facto law shall be passed ; that the right to 
trial by jury shall be preserved ; that excessive bail shall not be 
required, nor excessive punishments inflicted ; that no person shall 
be subject to be twice put in jeopardy for the same offence, nor 
be compelled in any criminal case to be a witness against himself, 
nor be deprived of life, liberty, or property without due process of 
law ; that private property shall not be taken for public use without 
compensation ; and the like. 

Other clauses are sometimes added declaratory of the principles 
of morality and virtue ; and it is also sometimes expressly de- 
clared — what indeed is implied without the declaration — that 
every thing in the declaration of rights contained is excepted out 
of the general powers of government, and all laws contrary thereto 
shall be void. 

Many other things are commonly found in these charters of 
[40] 



OH. III.] FORMATION AND AMENDMENT OP CONSTITUTIONS. * 36 

government ; 1 but since, while they continue in force, they are to 
remain absolute and unchangeable rules of action and decision, it 
is obvious that they should not be made to embrace within their 
iron grasp those subjects in regard to which the policy or interest 
of the State or of its people may vary from time to time, and 
which are therefore more properly left to the control of the legis- 
lature, which can more easily and speedily make the required 
changes. 

In considering State constitutions we must not commit the mis- 
take of supposing that, because individual rights are guarded and 
protected by them, they must also be. considered as owing their 
origin to them. These instruments measure the powers of the 
rulers, but they do not measure the rights of the governed. 
* " What is a constitution, and what are its objects ? It is [* 87] 
easier to tell what it is not than what it is. It is not the 
beginning of a community, nor the origin of private rights ; it 
is not the fountain of law, nor the incipient state of government; 
it is not the cause, but consequence, of personal and political free- 
dom ; it grants no rights to the people, but is the creature of their 
power, the instrument of their convenience. Designed for their 
protection in the enjoyment of the rights and powers which they 
possessed before the constitution was made, it is but the framework 
of the political government, and necessarily based upon the pre- 
existing condition of laws, rights, habits, and modes of thought. 
There is nothing primitive in it : it is all derived from a known 
source. It presupposes an organized society, law, order, property, 
personal freedom, a love of political liberty, and enough of culti- 
vated intelligence to know how to guard it against the encroach- 
ments of tyranny. A written constitution is in every instance a 
limitation upon the powers of government in the hands of agents ; 
for there never was a written republican constitution which del- 
egated to functionaries all the latent powers which lie dormant 

1 " This, then, is the office of a written constitution : to delegate to various 
public functionaries such of the powers of government as the people' do not 
intend to exercise for themselves ; to classify these powers, according to their 
nature, and to commit them to separate agents ; to provide for the choice of these 
agents by the people ; to ascertain, limit, and define the extent of the authority 
thus delegated ; and to reserve to the people their sovereignty over all things not 
expressly committed to their representatives." E. P. Hurlbut in Human Rights 
and their Political Guaranties. 

[41] 



* 37 CONSTITUTIONAL LIMITATIONS. [CH. Ill 

in every nation, and are boundless in extent, and incapable of 
definition." 1 

1 Hamilton v. St. Louis County Court, 15 Mo. 13, per Bates, arguendo. • And 
see Matter of Oliver Lee & Co.'s Bank, 21 N. Y. 9; Lee v. State, 26 Ark. 265-6. 
" Written constitutions sanctify and confirm great principles, but the latter are 
prior in existence to the former." 2 Webster's Works, 392. See, also, 1 Bl. 
Com. 124 ; 2 Story, Life and Letters, 278 ; Sidney on Government, c. 3, sec. 27 
and 33. " If this charter of State government which we call a Constitution were 
all there was of constitutional command ; if the usages, the customs, the maxims, 
that have sprung from the habits of life, modes of thought, methods of trying 
facts by the neighborhood, and mutual responsibility in neighborhood interests ; 
the precepts that have come to us .from the revolutions which overturned tyran- 
nies ; the sentiments of manly independence and self control which impelled our 
ancestors to summon the local community to redress local evils, instead of relying 
upon king or legislature at a distance to do so, — if a recognition of all these 
were to be stricken from the body of our constitutional law, a lifeless skeleton 
might remain, but the living spirit, that which gives it force and attraction, which 
makes it valuable, and draws to it the affections of the people ; that which dis- 
tinguishes it from the numberless constitutions, so called, which in Europe have 
been set up and thrown down within the last hundred years, many of which, in 
their expressions, seemed equally fair and to possess equal promise with ours, 
and have only been wanting in the support and vitality which these alone can 
give, — this living and breathing spirit which supplies the interpretation of the 
words of the written charter would be utterly lost and gone." People v. 
Hurlbut, 24 Mich. 107. 

[42] 



'H. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 



^CHAPTER IV. [*38] 

OP THE CONSTRUCTION OF STATE CONSTITUTIONS. 

The deficiencies of human language are such that if written 
instruments were always carefully drawn, and by persons skilled 
in the use of words, we should not be surprised to find their mean- 
ing often drawn in question, or at least to meet with difficulties 
in their practical application. But these difficulties are greatly 
increased when draughtsmen are careless or incompetent; and they 
multiply rapidly when the instruments are to be applied, not only 
to the subjects directly within the contemplation of those who 
framed them, but also to a great variety of new circumstances 
which could not have been anticipated, but which must nevertheless 
be governed by the general rules which the instruments establish. 
Moreover, the different points of view from which different interests 
regard these instruments incline them to different views of the 
instruments themselves. All these circumstances tend to render 
the subjects of interpretation and construction prominent in the 
practical administration of the law, and often suggest questions of 
no little difficulty. 

Interpretation differs from construction in that the former " is 
the act of finding out the true sense of any form of words ; that is, 
the sense which their author intended to convey ; and of enabling 
others to derive from them the same idea which the author in- 
tended to convey. Construction, on the other hand, is the drawing 
of conclusions respecting subjects that lie beyond the direct ex- 
pressions of the text, from elements known from and given in the 
text ; conclusions which are in the spirit, though not in the letter 
of the text. Interpretation only takes place if the text conveys 
some meaning or other. But construction is resorted to when, in 
comparing two different writings of the same individual, or two 
different enactments by the same legislative body, there is found 
contradiction where there was evidently no intention of such con- 
tradiction one of another, or where it happens that part of a writ 

[43] 



* 38 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

ing or declaration contradicts the rest. When this is the case, 
and the nature of the document or declaration, or whatever else it 
may be, is such as not to allow us to consider the whole as being 
invalidated by a partial or other contradiction, then resort must be 
had to construction ; so, too, if found to act in cases which have 
not been foreseen by the framers of those rules, by which we are 
nevertheless obliged, for some binding reason, faithfully to regulate 
as well as we can our action respecting the unforeseen case." 1 In 
common use, however, the word construction is generally employed 
in the law in a sense embracing all that is properly covered by 
both when used in a sense strictly and technically correct ; and 

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

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

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

1 Lieber, Legal and Political Hermeneutics. See Smith on Stat, and Const. 
Construction, 600. Bouvier defines the two terms succinctly as follows : " Inter- 
pretation, the discovery and representation of the true meaning of any signs used 
to convey ideas." " Construction, in practice, determining the meaning and 
application as to the case in question of the provisions of a constitution, statute, 
will, or other instrument, or of an oral agreement." Law Die. 

[44] 



i^ff. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. * 39 

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

Let us suppose that the constitution requires of the 
legislature, * that, in establishing municipal corporations, [* 40] 
it shall restrict their powers of taxation ; and a city charter 
is proposed which confines the right of taxation to the raising of 
money for certain specified purposes, but in regard to those pur- 
poses leaves it unlimited ; or which allows to the municipality 
unlimited choice of purposes, but restricts the rate ; or which 
permits persons to be taxed indefinitely, but limits the taxation of 
property : in either of these cases the question at once arises, 
whether the limitation in the charter is such a restriction as the 
constitution intends. Let us suppose, again, that a board of su- 
pervisors is, by the constitution, authorized to borrow money upon 
the credit of the county for any county purpose, and they are 
asked to issue bonds in order to purchase stock in some railway 
company which proposes to construct a road across the county ; 
the proposition is met with the query, Is this a county purpose, 
and can the issue of bonds be regarded as a borrowing of money, 
within the meaning of the people as expressed in the constitu- 
tion ? And once again : let us suppose that the governor is em- 
powered to convene the legislature on extraordinary occasions, 
and he is requested to do so in order to provide for a class of 
private claims whose holders are urgent; can this with any pro- 
priety be deemed an extraordinary occasion ? 

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

[45] 



* 40 CONSTITUTIONAL LIMITATIONS. [CH. IV", 

the legislature may abstain from enacting it. 1 But those pro- 
visions are not often to be met with, and judicial decisions, espe- 
cially upon delicate and difficult questions of constitutional law, 
can seldom be entirely satisfactory when made, as they commonly 
will be under such calls, without the benefit of argument at the 

bar, and of that light upon the points involved which might 
[* 41] * be afforded by counsel learned in the law, and interested 

in giving them a thorough investigation. 
It follows, therefore, that every department of the government 
and every official of every department may at any time, when a 
duty is to be performed, be required to pass upon a question of 
constitutional construction. 2 Sometimes the case will be such 
that the decision when made must, from the nature of things, be 
conclusive and subject to no appeal or review, however erroneous 
it may be in the opinion of other departments or other officers ; 
but in other cases the same question may be required to be passed 
upon again before the duty is completely performed. The first of 
these classes is where, by the constitution, a particular question 
is plainly addressed to the discretion or judgment of some one 
department or officer, so that the interference of any other de- 
partment or officer, with a view to the substitution of its own 
discretion or judgment in the place of that to which the "consti- 
tution has confided the decision, would be impertinent and intru- 
sive. Under every constitution cases of this description are to 
be met with ; and though it will sometimes be found difficult to 

1 By the constitutions of Maine, New Hampshire, and Massachusetts, the 
judges of the Supreme Court are required, when called upon by the governor, 
council, or either house of the legislature, to give their opinions " upon impor- 
tant questions of law, and upon solemn occasions." In Missouri, they are to 
give their opinions "upon important questions of constitutional law, and upon 
solemn occasions; " and the Supreme Court has held that while the governor 
determines for himself whether the occasion is such as to authorize him to call on 
the judges for their opinion, they must decide for themselves whether the occa- 
sion is such as to warrant the governor in making the call. Opinions of Judges, 
49 Mo. 216. 

2 "It is argued that the legislature cannot give a construction to the constitu- 
tion relative to private rights secured by it. It is true that the legislature, in 
consequence of their construction of the constitution, cannot make laws repug- 
nant to it. But every department of government, invested with certain consti- 
tutional powers, must, in the first instance, but not exclusively, be the judge of 
its powers, or it could not act." Parsons, Ch. J., in Kendall v. Inhabitants of 
Kingston, 5 Mass. 533. 

[46] 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. * 41 

classify them, there can be no doubt, when the case is properly 
determined to be one of this character, that the rule must prevail 
which makes the decision final. 

We will suppose, again, that the constitution empowers the 
executive to convene the legislature on extraordinary occasions, 
and does not in terms authorize the intervention of any one else 
in determining what is and what is not such an occasion in the 
constitutional sense ; it is obvious that the question is addressed 
exclusively to the executive judgment, and neither the legislature 
nor the judicial department can intervene to compel action if he 
decide against it, or to enjoin action if, in his opinion, the proper 
occasion has arisen. 1 And again, if, by the constitution, 
* laws are to take effect at a specified time after their [* 42] 
passage, unless the legislature, for urgent reasons, shall 
otherwise order, we must perceive at once that the legislature 
alone is competent to pass upon the urgency of the alleged 
reasons. 2 And to take a judicial instance : If a court is required 
to give an accused person a trial at the first term after indictment, 

1 In exercising bis power to call out the militia in certain exigencies, the Pres- 
ident is the exclusive and final judge when the exigency has arisen. Martin v. 
Mott, 12 Wheat. 29. 

2 In Gillinwater v . Mississippi & Atlantic Railroad Co., 13 111. 1, it was urged 
that a certain restriction imposed upon railroad corporations by the general rail- 
road law was a violation of the provision of the constitution which enjoins it upon 
the legislature " to encourage internal improvements by passing liberal general 
laws of incorporation for that purpose." The court say of this provision : " This 
is a constitutional command to the legislature, as obligatory on it as any other of 
the provisions of that instrument ; but it is one which cannot be enforced by the 
courts of justice. It addresses itself to the legislature alone, and it is not for us 
to say whether it has obeyed the behest in its true spirit. Whether the provisions 
of this law are liberal, and tend to encourage internal improvements, is matter of 
opinion, about which men may differ; and as we have no authority to revise legis- 
lative action on the subject, it would not become us to express our views in rela- 
tion to it. The law makes no provision for the construction of canals and turn- 
pike roads, and yet they are as much internal improvements as railroads, and we 
might as well be asked to extend what we might consider the liberal provisions of 
this law to them, because they are embraced in the constitutional provision, as to 
ask us to disregard such provisions of it as we might regard as illiberal. The 
argument proceeds upon the idea that we should consider that as done which ought 
to be done ; but that principle has no application here. Like laws upon other 
subjects within legislative jurisdiction, it is for the courts to say what the law is, 
not what it should be." It is clear that courts cannot interfere with matters of 
legislative discretion. Maloy v. Marietta, 11 Ohio, N. s. 639. 

[47] 



* 42 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

unless good cause be shown for continuance, it is obvious that the 
question of good cause is one for the court alone to pass upon, 
and that its judgment when exercised is, and must be from the 
nature of the case, final. And when in any of these and similar 
cases the decision is once made, other departments or other 
officers, whatever may have been their own opinions, must assume 
the decision to be correct, and are not at liberty to raise any 
question concerning it, unless some duty is devolved upon them 
which presents the same question anew. 

But there are cases where the question of construction is equally 
addressed to two or more departments of the government, and it 
then becomes important to know whether the decision by one is 
binding upon the others, or whether each is to act upon its 
own judgment. Let us suppose once more that the governor, 
being empowered by the constitution to convene the 
[* 43] * legislature upon extraordinary occasions, has regarded 
a particular event as being such an occasion, and has 
issued his proclamation calling them together with a view to the 
enactment of some particular legislation which the event seems 
to call for, and which he specifies in his proclamation. Now the 
legislature are to enact laws upon their own view of necessity 
and expediency ; and they will refuse to pass the desired statute 
if they regard it as unwise or unimportant. But in so doing they 
indirectly review the governor's decision, as in refusing to pass 
the law they also decide that the specific event was not one calling 
for action on their part. In such a case it is clear that, while the 
decision of the governor is final so far as to require the legislature 
to meet, it is not final in any sense that would bind the legislative 
department to accept and act upon it when they are called to enter 
upon the performance of their duty in the making of laws. 1 

So also there are cases where, after the two houses of the legis- 
lature have passed upon the question, their decision is in a certain 
sense subject to review by the governor. If a bill is introduced 
the constitutionality of which is disputed, the passage of the bill 
by the two houses must be regarded as the expression of their 
judgment that, if approved, it will be a valid law. But if the 
constitution confers upon the governor a veto power, the same 
question of constitutional authority will be brought by the bill 
before him, since it is manifestly his duty to withhold approval • 

1 See Opinions of Judges, 49 Mo. 216. 
[48] 



CH. IV.] CONSTRUCTION OP STATE CONSTITUTIONS. * 43 

from any bill which, in his opinion, the legislature ought not for 
any reason to pass. And what reason so valid as that the con- 
stitution confers upon them no authority to that end ? In all 
these and the like cases, each department must act upon its own 
judgment, and cannot be required to do that which it regards as 
a violation of the constitution, on the ground solely that another 
department which, in the course of the discharge of its own duty, 
was called upon first to act, has reached the conclusion that it will 
not be violated by the proposed action. 

But setting aside now those cases to which we have referred, 
where from the nature of things, and perhaps from explicit terms 
of the constitution, the judgment of the department or officer 
acting must be final, we shall find the general rule to be, that 
whenever an act is done which may become the subject of a 
proceeding in court, any question of constitutional authority 
that might have been raised when the act was done will 
be * open for consideration in such proceeding, and that as [* 44] 
the courts must finally settle the controversy, so also will 
they finally determine the question of constitutional law. 

For the constitution of the State is higher in authority than any 
law, direction, or decree made by any body or any officer assuming 
to act under it, since such body or officer must exercise a dele- 
gated authority, and one that must necessarily be subservient to 
the instrument by which the delegation is made. In any case of 
conflict the fundamental law must govern, and the act in conflict 
with it must be treated as of no legal validity. But no mode has 
yet been devised by which these questions of conflict are to be 
discussed and settled as abstract questions, and their determination 
is necessary or practicable only when public or private rights 
would be affected thereby. They then become the subject of legal 
controversy, and legal controversies must be settled by the courts. 
The courts have thus devolved upon them the duty to pass upon 
the constitutional validity, sometimes of legislative, and sometimes 
of executive acts. And as judicial tribunals have authority, not 
only to judge, but also to enforce their judgments, the result of 
a decision against the constitutionality of a legislative or executive 
act will be to render it invalid through the enforcement of the 
paramount law in the controversy which has raised the question. 1 

1 " When laws conflict in actual cases, they [the courts] must decide 'which is 
the superior law, and which must yield ; and as we have seen that, according to 

4 [49] 



* 45 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

[* 45] * The same conclusion is reached by stating in consecu- 
tive order a few familiar maxims of the law. The adminis- 
tration of public justice is referred to the courts. To perform this 
duty, the first requisite is to ascertain the facts, and the next to 
determine the law that is applicable. The constitution is the funda- 
mental "law of the State, in opposition to which any other law, or 
any direction or decree, must be inoperative and void. If, therefore, 
such other law, direction, or decree seems to be applicable to the 
facts, but on comparison with the fundamental law it is found to be 
in conflict, the court, in declaring what the law of the case is, must 
necessarily determine its invalidity, and thereby in effect annul 
it. 1 The right and the power of the courts to do this are so plain, 

our principles, every officer remains answerable for what he officially does, a cit- 
izen, believing that the law he enforces is incompatible with the superior law, the 
constitution simply sues the officer before the proper court as having unlawfully 
aggrieved him in the particular case. The court, bound to do justice to every 
one, is bound also to decide this case as a simple case of conflicting laws. The 
court does not decide directly upon the doings of the legislature. It simply 
decides for the case in hand, whether there actually are conflicting laws, and if 
so which is the higher law that demands obedience, when both may not be obeyed 
at the same time. As, however, this decision becomes the leading decision for 
all future cases of the same import, until, indeed, proper and legitimate authority 
should reverse it, the question of constitutionality is virtually decided, and it is 
decided in a natural, easy, legitimate, and safe manner, according to the prin- 
ciple of the supremacy of the law, and the dependence of justice. It is one of 
the most interesting and important evolutions of the government of law, and one 
of the greatest protections of the citizen. It may well be called a very jewel of 
Anglican liberty, and one of the best fruits of our political civilization." Lieber, 
Civil Liberty and Self-Government. 

" Whenever a law which the judge holds to be unconstitutional is argued in a 
tribunal of the United States, he may refuse to admit it as a rule ; this power is 
the only one which is peculiar to the American magistrate, but it gives rise to 
immense political influence. Few laws can escape the searching analysis ; for 
there are few which are not prejudicial to some private intei'est or other, and 
none which may not be brought before, a court of justice by the choice of par- 
ties, or bythe necessity of the case. But from the time that a judge has refused 
to apply any given law in a case, that law loses a portion of its moral sanction. 
The persons to whose interest it is prejudicial learn that means exist for evading 
its authority ; and similar suits are multiplied until it becomes powerless. One 
of two alternatives must then be resorted to, — the people must alter the con- 
stitution, or the legislature must repeal the law." De Tocqueville, Democracy 
in America, c. 6. 

1 " It is idle to say that the authority of each branch of the government is 
defined and limited by the constitution, if there be not an independent power 
able and willing to enforce the limitations. Experience proves that the consti- 

[50] 



CH. IV.] CONSTRUCTION OP STATE CONSTITUTIONS. * 46 

* and the duty is so generally — we may almost say uni- [* 46] 
versally — conceded, that we should not be justified in 
wearying the patience of the reader in quoting from the very 
numerous authorities upon the subject. 1 

tution is thoughtlessly but habitually violated ; and the sacrifice of individual 
rights is too remotely connected with the objects and contests of the masses to 
attract their attention. From its very position it is apparent that the conserva- 
tive power is lodged in the judiciary, which, in the exercise of its undoubted 
rights, is bound to meet any emergency ; else causes would be decided, not only 
by the legislature, but sometimes without hearing or evidence." Per Gibson, 
Ch. J., in De Chastellux v. Fairchild, 15 Penn. St. 18. 

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

" Without the limitations and restraints usually found in written constitutions, 
the government could have no elements of permanence and durability ; and the 
distribution of its powers and the vesting their exercise in separate departments 
would be an idle ceremony." Brown, J., in People v. Draper, 15 N. Y. 558. 

1 1 Kent, 500-507 ; Marbury v. Madison, 1 Cranch, 137 ; Webster on the 
Independence of the Judiciary, Works, Vol. III. p. 29. In this speech Mr. 
Webster has forcibly set forth the necessity of leaving with the courts the power 
to enforce constitutional restrictions. " It cannot be denied," says he, " that 
one great object of written constitutions is, to keep the departments of govern- 
ment as distinct as possible ; and for this purpose to impose restraints designed 
to have that effect. And it is equally true that there is no department on which 
it is more necessary to impose restraints than upon the legislature. The ten- 
dency of things is almost always to augment the power of that department in its 
relation to the judiciary. The judiciary is composed of few persons, and those 
not such as mix habitually. in the pursuits and objects which most engage public 
men. They are not, or never should be, political men. They have often un- 
pleasant duties to perform, and their conduct is often liable to be canvassed and 
censured where their reasons for it are not known or cannot be understood. 
The legislature holds the public purse. It fixes the compensation of all other 
departments ; it applies as well as raises all revenue. It is a numerous body, 
and necessarily carries along with it a great force of public opinion. Its mem- 
bers are public men, in constant contact with one another and with their constit- 

[51] 



47 CONSTITUTIONAL LIMITATIONS. [CH. IV. 



[* 47] * Conclusiveness of Judicial Decisions. 

•But a question which has arisen and been passed upon in one 
case may arise again in another, or it may present itself under 
different circumstances for the decision of some other department 
or officer of the government. It therefore becomes of the highest 
importance to know whether a principle once authoritatively de- 
clared is to be regarded as conclusively settled for the guidance, 
not only of the court declaring it, but of all courts and all depart- 
ments of the government ; or whether, on the other hand, the 
decision settles the particular controversy only, so that a different 
decision may be possible ; or, considering the diversity of human 
judgments, even probable, whenever in any new controversy other 
tribunals may be required to examine and decide upon the same 
question. 

In some cases and for some purposes the conclusiveness of a 
judicial determination is, beyond question, final and absolute. A 
decision once made in a particular controversy, by the highest 
court empowered to pass upon it, is conclusive upon the parties to 
the litigatiQii and their privies, and they are not allowed afterwards 
to revive the controversy in a new proceeding for the purpose of 
raising the same or any other questions. The matter in dispute 
has become res judicata ; a thing definitely settled by judicial 

uents. It would seem to be plain enough that, without constitutional provisions 
which should be fixed and certain, such a department, in case of excitement, 
would be able to encroach on the judiciary." "The constitution being the 
supreme law, it follows, of course, that every act of the legislature contrary to 
that law must be void. But who shall decide this question ? Shall the legisla- 
ture itself decide it? If so, then the constitution ceases to be a legal, and be- 
comes only a moral restraint upon the legislature. If they, and they only, are to 
judge whether their acts be conformable to the constitution, then the constitution 
is admonitory or advisory only, not legally binding; because if the construction 
of it rests wholly with them, their discretion, in particular cases, may be in 
favor of very erroneous and dangerous constructions. Hence the courts of law, 
necessarily, when the case arises, must decide on the validity of particular acts." 
"Without this check, no certain limitation could exist on the exercise of legisla- 
tive power." See also, as to the dangers of legislative encroachments, De Toc- 
queville, Democracy in America, c. 6 ; Story on Const. 4th ed. § 532 and note. 
The legislature, though possessing a larger share of power, no more represents 
the sovereignty of the people than either of the other departments ; it derives its 
authority from the same high source. Bailey v. Philadelphia, &c, Railroad Co., 4 
Harr. 402 ; Whittington v. Polk, 1 H. & J. 244. 

[52] 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. * 47 

decision ; and the judgment of the court imports absolute verity. 
Whatever the question involved, — whether the interpretation of a 
private contract, the legality of an individual act, or the validity of 
a legislative enactment, — the rule of finality is the same. The 
controversy has been adjudged, and once finally passed upon is 
never to be renewed. 1 It must frequently happen, therefore, that 
a question of constitutional law will be decided in a private litiga- 
tion, and the parties to the controversy, and all others subsequently 
acquiring rights under them, in the subject-matter of the suit, will 
thereby become absolutely and for ever precluded from renewing 
the question in respect to the matter then involved. The rule of 
conclusiveness to this extent is one of the most inflexible 
principles * of the law ; insomuch that even if it were sub- [* 48] 
sequently held by the courts that the decision in the par- 
ticular case was erroneous, such holding would not authorize the 
reopening of the old controversy in order that the final conclusion 
might be applied thereto. 2 

1 Duchess of Kingston's Case, 2 Smith's Lead. Cas. 424; Etheridge v. Osborn, 
12 Wend. 399; Hayes v. Reese, 34 Barb. 151 ; Hyatt v. Bates, 35 Barb. 308; 
Harris v. Harris, 36 Barb. 88 ; Young v. Black, 7 Cranch, 567 ; Chapman v. 
Smith, 16 How. 114 ; Wales v. Lyon, 2 Mich. 276 ; Prentiss v. Holbrook, 2 Mich. 
372; Van Kleek v. Eggleston, 7 Mich. 511; Newberry v. Trowbridge, 13 Mich. 
278; Crandall v. James, 6 R. I. 144; Babcock v. Camp, 12 Ohio, N. s. 11; 
Warner v. Scott, 39 Penn. St. 274; Kerr v. Union Bank, 18 Md. 396 ; Eimer v. 
Richards, 25 111. 289 ; Wright v. Leclaire, 3 Iowa, 241 ; Whittaker v. Johnson 
County, 12 Iowa, 595; Peay v. Duncan, 20 Ark. 85; Madox v. Graham, 2 Met. 
(Ky.) 56; George v. Gillespie, 1 Greene (Iowa), 421; Clark v. Sammons, 12 
Iowa, 368; Taylor v. Chambers, 1 Iowa, 124; Skelding v. Whitney, 3 Wend. 
154; Hawkins v. Jones, 19 Ohio, n. s. 22; Slade v. Slade, 58 Me. 157; Geary 
v. Simmons, 39 Cal. 224 ; Cannon v. Brame, 45 Ala. 262 ; Dwyer v. Goran, 29 
Iowa, 126 ; Verner v. Carson, 66 Penn. St. 440 ; Aurora City v. West, 7 Wall. 82 ; 
Harris v. Colquit, 44 Geo. 663 ; Finney v. Boyd, 26 Wis. 366 ; Ram on Legal 
Judgment, c. 14. A judgment, however, is conclusive as an estoppel as to those 
facts without the existence and proof of which it could not have been rendered ; 
and if it might have been given on any one of several grounds, it is conclusive 
between the parties as to neither of them. Lea v. Lea, 97 Mass. 493. And see 
Dickinson v. Hayes, 31 Conn. 417 ; Church v. Chapin, 35 Vt. 223 ; Packet Co. 
v. Sickles, 5 Wall. 580; Spencer v. Dearth, 43 Vt. 98. 

2 McLean v. Hugarin, 13 Johns. 184 ; Morgan v. Plumb, 9 Wend. 287 ; 
Wilder v. Case, 16 Wend. 583; Baker v. Rand, 13 Barb. 152; Kelley v. Pike, 
5 Cush. 484; Hart v. Jewett, 11 Iowa, 276; Colburn v. Woodworth, 31 Barb. 
381; Newberry v. Trowbridge, 13 Mich. 278; Skildin v. Herrick, 3 Wend. 154; 
Brockway v. Kinney, 2 Johns. 210; Platner v. Best, 11 Johns. 530; Phillips v. 
Berick, 16 Johns. 136 ; Page v. Fowler, 37 Cal. 100. 

[53] 



* 48 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

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

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

parties had an opportunity of being heard. 
[* 49] * We have already seen that the force of a judgment 
does not depend upon the reasons given therefor, or upon 
the circumstance that any were or were not given. If there were, 
they may have covered portions of the controversy only, or they 
may have had such reference to facts peculiar to that case, that in 
any other controversy, though somewhat similar in its facts, and 
apparently resembling it in its legal bearings, grave doubts might 
arise whether it ought to fall within the same general principle. 
If one judgment were absolutely to conclude the parties to any 
similar controversy, we ought at least to be able to look into the 
judicial mind, in order that we might ascertain of a surety that all 
[54] 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. * 49 

those facts which should influence the questions of law were sub- 
stantially the same in each, and we ought also to be able to see 
that the firs.t litigation was conducted in entire good faith, and that 
every consideration was presented to the court which could prop- 
erly have weight in the construction and application of the law.' 
All these things, however, are manifestly impossible ; and the law 
therefore wisely excludes judgments from being used to the preju- 
dice of strangers to the controversy, and restricts their conclusive- 
ness to the parties thereto and their privies. 1 Even parties and 
privies are bound only so far as regards the subject-matter then 
involved, and would be at liberty to raise the same questions anew 
in a distinct controversy affecting some distinct subject-matter. 2 

All judgments, however, are supposed to apply the existing law 
to the facts of the case ; and the reasons which are sufficient to 
influence the court to a particular conclusion in one case ought to 
be sufficient to bring it or any other court to the same conclusion 
in all other like cases where no modification of the law has inter- 
vened. There would thus be uniform rules for the administra- 
tion of justice, and the same measure that is meted out 
* to one would be received by all others. And even if the [* 50] 
same or any other court, in a subsequent case, should be 
in doubt concerning the correctness of the decision which has been 
made, there are consequences of a very grave character to be con- 
templated and weighed before the experiment of disregarding it 
should be ventured upon. That state of things, when judicial de- 
cisions conflict, so that a citizen is always at a loss in regard to 
his rights and his duties, is a very serious evil ; and the alterna- 
tive of accepting adjudged cases as precedents in future controver- 
sies resting upon analogous facts, and brought within the same 
reasons, is obviously preferable. Precedents, therefore, become 

1 Burrill v. West, 2 N. H. 190; Davis v. Wood, 1 Wheat. 6; Jackson v. 
Vedder, 3 Johns. 8 ; Case v. Reeve, 14 Johns. 79 ; Alexander v. Taylor, 4 Denio, 
302 ; Van Bokkelin v. Ingersoll, 5 Wend. 315 ; Smith v. Ballantyne, 10 Paige, 
101 ; Orphan House v. Lawrence, 11 Paige, 80 ; Thomas v. Hubbell, 15 N. Y. 
405 ; Wood v. Stephen, 1 Serg. & R. 175 ; Peterson v. Lothrop, 34 Penn. St. 
223; Twambly v. Henley, 4 Mass. 441 ; Este v. Strong, 2 Ohio, 401 ; Cowles v. 
Harts, 3 Conn. 516 ; Floyd v. Mintsey, 5 Rich. 361 ; Riggins's Ex'rs v. Brown, 
12 Geo. 271 ; Persons v. Jones, ib. 371. 

2 Van Alstinet-. Railroad Co., 34 Barb. 28; Taylor v. McCracken, 2 Blackf. 
260 ; Cook v. Vimont, 6 T. B. Monr. 284. See, for a discussion of this doctrine 
and limitations upon it, Spencer v. Dearth, 43 Vt. 98. 

[55] 



* 50 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

important, and counsel are allowed and expected to call the atten- 
tion of the court to them, not as concluding controversies, but as 
guides to the judicial mind. Chancellor Kent says : % " A solemn 
decision upon a point of law arising in any given case becomes an 
authority in a like case, because it is the highest evidence which 
we can have of the law applicable to the subject, and the judges 
are bound to follow that decision so long as it stands unreversed, 
unless it can be shown that the law was misunderstood or misap- 
plied in that particular case. If a decision has been made upon 
solemn argument and mature deliberation, the presumption is in 
favor of its correctness, and the community have a right to regard 
it as a just declaration or exposition of the law, and to regulate 
their actions and contracts by it. It would therefore be extremely 
inconvenient to the public if precedents were not duly regarded, 
and implicitly followed. It is by the notoriety and stability of 
such rules that professional men can give safe advice to those who 
consult them, and people in general can venture to buy and trust, 
and to deal with each other. If judicial decisions were to be 
lightly disregarded, we, should disturb and unsettle the great 
landmarks of property. When a rule has once been deliberately 
adopted and declared, it ought not to be disturbed unless by a 
court of appeal or review, and never by the same court, except for 
very urgent reasons, and upon a clear manifestation of error ; and 
if the practice were otherwise, it would be leaving us in a perplex- 
ing uncertainty as to the law." x 

1 1 Kent, 475. And see Cro. Jac. 527; Goodtitle v. Otway, 7 T. R. 416; 
Selby v. Bardons, 8 B. & Ad. 17 ; Fletcher v. Lord Somers, 3 Bing. 588 ; Ander- 
son v. Jackson, 16 Johns. 402 ; Goodell v. Jackson, 20 Johns. 722 ; Bates v. 
Releyea, 23 Wend. 340 ; Emerson v. Atwater, 7 Mich. 12 ; Nelson v. Allen, 1 
Yerg. 376 ; Palmer v. Lawrence, 5 N. Y. 389 ; Kneeland v. Milwaukee, 15 Wis. 
458 ; Boon v. Bowers, 30 Miss. 246 ; Rex v. Cox, 2 Burr. 787; King v. Younger, 
5 T. R. 450 ; Hammond v. Anderson, 4 B. & P. 69 ; Broom's Maxims, 109. Dr. 
Lieber thinks the doctrine of the precedent especially valuable in a free country. 
"Liberty and steady progression require the principle of the precedent in all 
spheres. It is one of the roots with which the tree of liberty fastens in the soil 
of real life, and through which it receives the sap of fresh existence. It is the 
weapon by which interference is warded off. The principle of the precedent is 
eminently philosophical. The English Constitution would not have developed 
itself without it. What is called the English Constitution consists of the funda- 
mentals of the British polity, laid down in custom, precedent, decisions,^and stat- 
utes ; and the common law in it is a far greater portion than the statute law. 
The English Constitution is chiefly a common-law constitution ; and this reflex 

[56] 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. * 51 

* The doctrine of stare decisis, however, is only applica- [* 51] 
ble, in its full force, within the territorial jurisdiction of 
the courts making * the decisions, since there alone can [* 52] 
such decisions be regarded as having established any 
rules. Rulings made under a similar legal system elsewhere may 
be cited and respected for their reasons, but are not necessarily to 
be accepted as guides, except in so far as those reasons commend 
themselves to the judicial mind. 1 Great Britain and the thirteen 
original States had each substantially the same system of common 

of a continuous society in a continuous law is more truly philosophical than the 
theoretic and systematic, but lifeless constitutions of recent France." Civ. Lib. 
and Self-Gov. See also his chapter on precedents in the Hermeneutics. In 
Nelson v. Allen. 1 Yerg. 376, where the constitutionality of the " Betterment 
Law" came under consideration, the court (White, J.) say: " Whatever might 
be my own opinion upon this question, not to assent to its settlement now, after 
two solemn decisions of this court, the last made upwards of fourteen years ago, 
and not only no opposing decision, but no attempt even by any case, during all 
this time, to call the point again in controversy, forming a complete acquiescence, 
would be, at the least, inconsistent, perhaps mischievous, and uncalled for by a 
correct discharge of official duty. Much respect has always been paid to the 
contemporaneous construction of statutes, and a forbidding caution hath always 
accompanied any approach towards unsettling it, dictated no doubt by easily 
foreseen consequences attending a sudden change of a rule of property, neces- 
sarily introductory at least of confusion, increased litigation, and the disturbance 
of the peace of society. The most able judges and the greatest names on the 
bench have held this view of the subject, and occasionally expressed themselves 
to that effect, either tacitly or openly, intimating that if they had held a part in 
the first construction they would have been of a different opinion ; but the con- 
struction having been made, they give their assent thereto. Thus Lord Ellen- 
borough, in 2 East, '602, remarks : ' I think it is better to abide by that deter- 
mination, than to introduce uncertainty into this branch of the law, it being often 
more important to have the rule settled, than to determine what it shall be. I 
am not, however, convinced by the reasoning in this case, and if the point were 
new I should think otherwise.' Lord Mansfield, in 1 Burr. 419, says : ' Where 
solemn determinations acquiesced under had settled precise cases, and a rule of 
property, they ought, for the sake of certainty, to be observed, as if they had 
originally formed a part of the text of the statute.' And Sir James Mansfield, 
in 4 B. & P. 69, says : ' I do not know how to distinguish this from the case 
before decided in the court. It is of greater consequence that the law should be 
as uniform as possible, than that the equitable claim of an individual should 
be attended to.'" And see People v. Cicotte, 16 Mich. 283. 

A judgment rendered by a court is authority notwithstanding it was one given 
under the law of necessity, in consequence of an equal division of the court. 
Regina v. Millis, 13 M. & W. 261 ; Durant v. Essex Co., 7 Wall. 107. 

J Caldwell v. Gale, 11 Mich. 77. 

[57] 



* 52 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

law originally, and a decision now by one of the higher courts of 
Great Britain as to what the common law is upon any point is cer- 
tainly entitled to great respect in any of the States, though not 
necessarily to be accepted as binding authority any more than the 
decisions in any one of the other States upon the same point. It 
gives us the opinions of able judges as to what the law is, but its 
force as an authoritative declaration must be confined to the coun- 
try for which the court sits and judges. But an English decision 
before the Revolution is in the direct line of authority ; and where 
a particular statute or clause of the constitution has been adopted 
in one State from the statutes or constitution of another, after a 
judicial construction had been put upon it in such last-mentioned 
State, it is but just to regard the construction to have been 
adopted, as well as the words, and all the mischiefs of disregard- 
ing precedents would follow as legitimately here as in any other 

case. 1 

It will of course sometimes happen that a court will find a 
former decision so unfounded in law, so unreasonable in its deduc- 
tions, or so mischievous in its consequences, as to feel compelled 
to disregard it. Before doing so, however, it will be well to con- 
sider whether the point involved is such as to have become a rule 
of property, so that titles have been acquired in reliance upon it, 
and vested rights will be disturbed by any change ; for in such a 

case it may be better that the correction of the error be 
[* 53] left to the legislature, which can control its action so * as 

to make it prospective only, and thus prevent unjust con- 
sequences. 2 

1 Commonwealth v. Hartnett, 3 Gray, 450 ; Bond v. Appleton, 8 Mass. 472 ; 
Rutland v. Mendon, 1 Pick. 154 ; Campbell v. Quinlin, 3 Scam. 288 ; Little v. 
Smith, 4 Scam. 402; Riggs v. Wilton, 13 111. 15; Ingraham v. Regan, 23 Miss. 
213; Tyler v. Tyler, 19 111. 151; Pennock v. Dialogue, 2 Pet. 18; Adams v. 
Field, 21 Vt. 266; Turnpike Co. v. People, 9 Barb. 167; Drennan v. People, 
10 Mich. 169; Myrick v. Hasey,'27 Me. 9; People v. Coleman, 4 Cal. 46; 
Attorney-General v. Brunst, 3 Wis. 787 ; Langdon v. Applegate, 5 Ind. 327 ; 
Hess v. Pegg, 7 Nev. 23. But it does not necessarily follow that the prior 
decision construing the law must be inflexibly followed, since the circumstances 
in the State adopting it may be so different as to require a different construction. 
Little v. Smith, 4 Scam. 402; Lessee of Gray v. Askew, 3 Ohio, 479. 

2 " After an erroneous decision touching rights of property has been followed 
thirty or forty years, and even a much less time, the courts cannot retrace their 
steps without committing a new error nearly as great as the one at the first." 
Bronson, J., in Sparrow v. Kingman, 1 N. Y. 260. See also Emerson v. Atwater, 

[58] 



CH. IV.] CONSTRUCTION OP STATE CONSTITUTIONS. * 53 

Whenever the case is such that judicial decisions which have 
been made are to be accepted as law, and followed by the courts 
in future cases, it is equally to be expected that they will be fol- 
lowed by other departments of the government also. Indeed in 
the great majority of cases the officers of other departments have 
no option ; for the courts possess the power to enforce their con- 
struction of the law as well as to declare it ; and a failure to 
accept and follow it in one case would only create necessity for 
new litigation with similar result. Nevertheless, there are excep- 
tions to this rule which embrace all those cases where new action 
is asked of another department, which that department is at lib- 
erty to grant or refuse for any reasons which it may regard as 
sufficient. We cannot conceive that, because the courts have 
declared an expiring corporation to have been constitutionally 
created, the legislature would be bound to renew its charter, or 
the executive to sign an act for that purpose, if doubtful of the 
constitutional authority, even though no other adverse reasons ex- 
isted. 1 In the enactment of laws the legislature must act upon 

7 Mich. 12 ; Loeb v. Mathis, 37 Ind. 306. " It is true that when a principle of 
law, doubtful in its characteror uncertain in the subject-matter ofits application, has 
been settled by a series of judicial decisions, and acquiesced in for a considerable 
time, and important rights and interests have become established under such 
decisions, courts will hesitate long before they will attempt to overturn the result 
so long established. But when it is apparently indifferent which of two or more 
rules is adopted, the one which shall have been adopted by judicial sanction will 
be adhered to, though it may not, at the moment, appear to be the preferable rule. 
But when a question involving important public or private rights, extending 
through all coming time, has been passed upon on a single occasion, and which 
decision can in no just sense be said to have been acquiesced in, it is not only 
the right, but the duty of the court, when properly called upon, to re-examine 
the questions involved, and again subject them to judicial scrutiny. We are 
by no means unmindful of the salutary tendency of the rule stare decisis, but at 
the same time we cannot be unmindful of the lessons furnished by our own 
consciousness, as well as by judicial history, of the liability to error and the 
advantages of review." Per Smith, J., Pratt v. Brown, 3 Wis. 6U9. And see 
Kneeland v. Milwaukee, 15 Wis. 458 ; Taylor v. French, 19 Vt. 49 ; Bellows v. 
Parsons, 13 N. H. '256 ; Hannel v. Smith, 15 Ohio, 134 ; Day v. Munson, 14 
Ohio, n. s. 488 ; Green Castle, &c, Co. v. State, 28 Ind. 382 ; Harrow v. Myers, 
29 Ind. 469 ; Mead v. McGraw, 19 Ohio, n. s. 62 ; Ram on Legal Judgment, 
c. 14, §3. 

1 In the celebrated case of the application of the Bank of the United States 
for a new charter, President Jackson felt himself at liberty to act upon his own 
view of constitutional power, in opposition to that previously declared by the 

[59] 



* 53 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

its own reasons ; mixed motives of power, justice, and policy influ- 
ence its action ; and it is always justifiable and laudable to lean 
against a violation of the constitution. Indeed cases must some- 
times occur when a court should refrain from declaring a 
[* 54] statute * unconstitutional, because not clearly satisfied 
that it is so, when if the judges were to act as legislators 
upon the question of its enactment, they ought with the same 
views to withhold their assent, from grave doubts upon that sub- 
ject. The duty is different in the two cases, and presumptions 
may control in one which do not exist in the other. But those 
cases where new legislation is sought stand by themselves, and are 
not precedents for those which involve only considerations concern- 
ing the constitutional validity of existing enactments. The general 
acceptance of judicial decisions as authoritative, by each and all, 
can alone prevent confusion, doubt, and uncertainty, and any other 
course is incompatible with a true government of law. 

Construction to be Uniform. 

A cardinal rule in dealing with written instruments is that 
they are to receive an unvarying interpretation, and that their 
practical construction is to be uniform. A constitution is not to 
be made to mean one thing at one time, and another at some sub- 
sequent time when the circumstances may have so changed as 
perhaps to make a different rule in the case seem desirable. A 
principal share of the benefit expected from written constitutions 
would be lost if the rules they established were so flexible as to 
bend to circumstances or be modified by public opinion. It is 
with special reference to the varying moods of public opinion, and 
with a view to putting the fundamentals of government beyond 
their control, that these instruments are framed ; and there can 
be no such steady and imperceptible change in their rules as in- 
heres in the principles of the common law. Those beneficent 
maxims of the common law which guard person and property 
have grown and expanded until they mean vastly more to us than 
they did to our ancestors, 'and are more minute, particular, and 
pervading in their protections ; and we may confidently look for- 

Supreme Court, and President Lincoln expressed similar views regarding the 
conclusiveness of the Died Scott decision upon executive and legislative action. 
See Story on Const, 4th ed. § 375, note. 

[60] 



CH. IV.] CONSTRUCTION OP STATE CONSTITUTIONS. * 54 

ward in the future to still further modifications in the direction of 
improvement. Public sentiment and action effect such changes, 
and the courts recognize them ; but a court or legislature which 
should allow a change in public sentiment to influence it in giving 
construction to a written constitution not warranted by the inten- 
tion of its founders, would be justly chargeable with reckless 
disregard of official oath and public duty ; and if its course 
could become a precedent, these instruments would be of 
* little avail. The violence of public passion is quite as [* 55] 
likely to be in the direction of oppression as in any other ; 
and the necessity for bills of rights in our fundamental laws lies 
mainly in the danger that the legislature will be influenced by 
temporary excitements and passions among the people to adopt 
oppressive enactments. What a court is to do, therefore, is to de- 
clare the law as written, leaving it to the people themselves to make 
such changes as new circumstances may require. 1 The meaning 
of the constitution is fixed when it is adopted, and it is not differ- 
ent at any subsequent time when a court has occasion to pass 
upon it. 2 

TJie Intent to govern. 

The object of construction, as applied to a written constitution, 
is to give effect to the intent of the people in adopting it. In the 
case of all written laws, it is the intent of the lawgiver that is to 
be enforced. But this intent is to be found in the instrument 
itself. It is to be presumed that language has been employed with 
sufficient precision to convey it, and unless examination demon- 
strates that the presumption does not hold good in the particular 
case, nothing will remain except to enforce it. " Where a law is 
plain and unambiguous, whether it be expressed in general or 
limited terms, the legislature should be intended to mean what 
they have plainly expressed, and consequently no room is left for 
construction." 3 Possible or even probable meanings, when one 

1 People v. Morrell, 21 Wend. 584 ; Newell v. People, 7 N. Y. 109 ; Hyatt 
v. Taylor, 42 N. Y. 259. 

8 Campbell, J., in People v. Blodgett, 13 Mich. 138. 

3 United States v. Fisher, 2 Cranch, 399 ; Bosley v. Mattingley, 14 B. Monr. 
89 ; Sturgis v. Crowninshield, 4 Wheat. 202 ; Schooner Paulina's Cargo v. United 
States, 7 Cranch, 60 ; Ogden v. Strong, 2 Paine, C. C. . 84 ; United States v. 
Ragsdale, 1 Hemp. 497 ; Southwark Bank v. Commonwealth, 26 Penn. St. 446 ; 

[61] 



* 56 CONSTITUTIONAL LIMITATIONS. . [CH. IV. 

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

Ingalls v. Cole, 47 Me. 530 ; McCluskey v. Cromwell, 11 N. Y. 593 ; Furman v. 
New York, 5 Sandf. 16 ; Newell v. People, 7 N. Y. 83 ; People v. N. Y. Central 
R.R. Co., 24 N. Y. 492 ; Bidwell v. Whittaker, 1 Mich. 479 ; Alexander v. 
Worthington, 5 Md. 471; Cantwell v. Owens, 14 Md. 215; Case v. Wildridge, 
4 Ind. 51 ; Spencer v. State, 5 Ind. 49 ; Putnam v. Flint, 10 Pick. 504 ; Heirs 
of Ludlow v. Johnson, 3 Ohio, 553 ; District Township v. Dubuque, 7 Iowa, 
262 ; Pattison v. Yuba, 13 Cal. 175 ; Ezekiel v. Dixon, 3 Kelly, 146 ; In re 
Murphy, 3 Zab. 180; Attorney-General v. Detroit & Erin P. R. Co., Wal. Ch. 
394; Smith v. Thursby, 28 Md. 244; State v. Bladsdel, 4 Nev. 241; State v. 
Doron, 5 Nev. 399. The remarks of Mr. Justice Bronson in People v. Purdy, 
2 Hill, 35, are very forcible in showing the impolicy and danger of looking 
beyond the instrument itself to ascertain its meaning, when the terms employed 
are positive and free from all ambiguity. "It is said that the Constitution does 
not extend to public corporations, and therefore a majority vote was sufficient. 
I do not so read the Constitution. The language of the clause is : ' The assent 
of two-thirds of the members elected to each branch of the legislature shall be 
requisite to every bill creating, continuing, altering, or renewing any body politic 
or corporate.' These words are as broad in their signification as any which 
could have been selected for the occasion from our vocabulary, and there is not 
a syllable in the whole instrument tending in the slightest degree to limit or 
qualify the universality of the language. If the clause can be so construed that 
it shall not extend alike to all corporations, whether public or private, it may 
then, I think, be set down as an established fact that the English language is too 
poor for the framing of fundamental laws which shall limit the powers of the 
legislative branch of the government. No one has, I believe, pretended that 
the Constitution, looking at that alone, can be restricted to any particular class 
or description of corporations. But it is said that we may look beyond the 
instrument for the purpose of ascertaining the mischief against which the clause 
was directed, and thus restrict its operation. But who shall tell us what that 
mischief was ? Although most men in public life are old enough to remember 
the time when the Constitution was framed and adopted, they are not agreed 
concerning the particular evils against which this clause was directed. Some 
suppose the clause was intended to guard against legislative corruption, and 
others that it was aimed at monopolies. Some are of opinion that it only extends 
to private without touching public corporations, while others suppose that it only 
restricts the power of the legislature when creating a single corporation, and not 
when they are made by the hundred. In this way a solemn instrument — for so 
I think the Constitution should be considered — is made to mean one thing by 
one man and something else by another, until, in the end, it is in danger of being 
rendered a mere dead letter ; and that, too, where the language is so plain and 
explicit that it is impossible to mean more than one thing, unless we first lose 
sight of the instrument itself, and allow ourselves to roam at large in the bound- 
less fields of speculation. For one, I dare not venture upon such a course. 
Written constitutions of government will soon come to be regarded as of little 

[62] 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. * 57 

* " Whether we are considering an agreement between [* 57] 
parties, a statute, or a constitution, with a view to its in- 
terpretation, the thing which we are to seek is the thought which it 
expresses. To ascertain this, the first resort in all cases is to the 
natural signification of the words employed, in the order of gram- 
matical arrangement in which the framers of the instrument have 
placed them. If thus regarded the words embody a definite mean- 
ing, which involves no absurdity and no contradiction between 
different parts of the same writing, then that meaning, apparent 
on the face of the instrument, is the one which alone we are at 
liberty to say was intended to be conveyed. In such a case there 
is no room for construction. That which the words declare is the 
meaning of the instrument, and neither courts nor legislatures 
have a right to add to or take away from that meaning." 1 

value if their injunctions may be thus lightly overlooked ; and the experiment of 
setting a boundary to power will prove a failure. We are not at liberty to pre- 
sume that the framers of the Constitution, or the people who adopted it, did not 
understand the force of language." See also same case, 4 Hill, 381, and State 
v. King, 44 Mo. 285. Another court has said: "This power of construc- 
tion in courts is a mighty one, and, unrestrained by settled rules, would tend to 
throw a painful uncertainty over the effect that might be given to the most plainly 
worded statutes, and render courts, in reality, the legislative power of the State. 
Instances are not wanting to confirm this. Judge-made law has overrode the 
legislative department. It was the boast of Chief Justice Pemberton, one of the 
judges of the despot Charles II., and not the worst even of those times, that he 
had entirely outdone the Parliament in making law. We think that system of 
jurisprudence best and safest which controls most by fixed rules, and leaves least 
to the discretion of the judge ; a doctrine constituting one of the points of su- 
pei'iority in the common law over that system which has been administered in 
France, where authorities had no force, and the law of each case was what the 
judge of the case saw fit to make it. We admit that the exercise of an unlimited 
discretion may, in a particular instance, be attended with a salutary result ; still 
history informs us that it has often been the case that the arbitrary discretion of 
a judge was the law of a tyrant, and warns us that it may be so again." Spencer 
v. State, 5 Ind. 76. "Judge-made law," as here employed, is that made by 
judicial decisions which construe away the meaning of statutes, or find meanings 
in them the legislature never held. The phrase is sometimes used as meaning, 
simply, the law that becomes established by precedent. The uses and necessity 
of judicial legislation are considered at length by Mr. Austin, in his Province of 
Jurisprudence. 

1 Newell v. People, 7 N. Y. 97. And see Den v. Reid, 10 Pet. 524 ; Green- 
castle Township v. Black, 5 Ind. 569 ; Bartlett v. Morris, 9 Port. 266 ; Leonard 
v. Wiseman, 31 Md. 204, per BartoL, Ch. J. ; McAdoo v. Benbow, 63 N. C. 
464; Broom's Maxims (5th Am. ed.), 551, marg. 

[63] 



57 CONSTITUTIONAL LIMITATIONS. [CH. IV. 



The whole Instrument to be examined. 

Nor is it lightly to be inferred that any portion of a written law 
is so ambiguous as to require extrinsic aid in its construction. 
Every such instrument is adopted as a whole, and a clause which, 
standing by itself, might seem of doubtful import, may yet be 
made plain by comparison with other clauses or portions of the 
same law. It is therefore a rule of construction, that the whole 
is to be examined with a vieiv to arriving at the true intention of 
each part ; and this Sir Edward Coke regards the most natural 
and genuine method of expounding a statute. 1 " If any section 
[of a law] be intricate, obscure, or doubtful, the proper mode of 
discovering its true meaning is by comparing it with the other 
sections, and finding out the sense of one clause by the words or 
obvious intent of another." 2 And in making this comparison it 
is not to be supposed that any words have been employed without 

occasion, or without intent that they should have effect as 
[* 58] part of * the law. The rule applicable here is, that effect 

is to be given, if possible, to the whole instrument, and 
to every section and clause. If different portions seem to conflict, 
the courts must harmonize them, if practicable, and lean in favor 
of a construction which will render every word operative, rather 
than one which may make some idle and nugatory. 3 

This rule is especially applicable to written constitutions, in 
which the people will be presumed to have expressed themselves 
in careful and measured terms, corresponding with the immense 
importance of the powers delegated, leaving as little as possible 
to implication. 4 It is scarcely conceivable that a case can arise 
where a court would be justifiable in declaring any portion of a 
written constitution nugatory because of ambiguity. One part 

1 Co. Lit. 381, a. 

2 Stowell v. Lord Zouch, Plowd. 365 ; Broom's Maxims, 521. 

3 Attorney-General v. Detroit and Erin Plank Road Co., 2 Mich. 138; People 
v. Burns, 5 Mich. 114; District Township v. Dubuque, 7 Iowa, 262; Manly v. 
State, 7 Md. 135; Parkinson v. State, 14 Md. 184; Belleville Railroad Co. v. 
Gregory, 15 111. 20; Ogden v. Strong, 2 Paine, C. C. 584; Ryegate v. Wards- 
boro, 30 Vt. 746 ; Brooks v. Mobile School Commissioners, 31 Ala. 227 ; Den 
v. Dubois, 1 Harrison, 285 ; Den v. Schenck, 3 Halst. 34 ; Bigelow v. W. Wis- 
consin R.R., 27 Wis. 478. 

4 Wolcott v. Wigton, 7 Ind. 49 ; People v. Purdy, 2 Hill, 36, per Bronson, 
J. ; Greencastle Township v. Black, 5 Ind. 570; Green v. Weller, 32 Miss. 650. 

[64] 



/ 



CH. IV.] CONSTRUCTION OP STATE CONSTITUTIONS. * 58 

may qualify another so as to restrict its operation, or apply it 
otherwise than the natural construction would require if it stood 
by itself; but one part is not to be allowed to defeat another, 
if by any reasonable construction the two can be made to stand 
together. 1 

In interpreting clauses we must presume that words have been 
employed in their natural and ordinary meaning. Says Marshall, 
Ch. J. : "The framers of the Constitution, and the people who 
adopted it, must be understood to have employed words in their 
natural sense, and to have understood what they meant." 2 This 
is but saying that no forced or unnatural construction is to be put 
upon their language ; and it seems so obvious a truism 
that one * expects to see it universally accepted without [* 59] 
question ; but the attempt is so often made by interested 
subtlety and ingenious refinement to induce the courts to force 
from these instruments a meaning which their framers never held, 
that it frequently becomes necessary to re-declare this fundamen- 
tal maxim. 3 Narrow and technical reasoning is misplaced when 

1 It is a general rule, in the construction of writings, that, a general intent 
appearing, it shall control the particular intent ; but this rule must sometimes 
give way, and effect must be given to a particular intent plainly expressed in one 
part of a constitution, though apparently opposed to a general intent deduced 
from other parts. Warren v. Sherman, 5 Texas, 441. In Quick v. Whitewater 
Township, 7 Ind. 570, it was said that if two provisions of a written constitution 
are irreconcilably repugnant, that which is last in order of time and in local posi- 
tion is to be preferred. 

2 Gibbons v. Ogden, 9 Wheat. 18S. See Settle v. Van Enrea, 49 N. Y. 281. 

3 State v. Mace, 5 Md. 337 ; Manly v. State, 7 Md. 135 ; Green v. Weller, 
32 Miss. 650 ; Greencastle Township v. Black, 5 Ind. 570 ; People v. N. Y. Cen- 
tral Railroad Co., 34 Barb. 137, and 24 N. Y. 488; Story on Const. § 453. 
" The true sense in which words are used in a statute is to be ascertained gen- 
erally by taking them in their ordinary and popular signification, or, if they be 
terms of art, in their technical signification. But it is also a cardinal rule of 
exposition, that the intention is to be deduced from the whole and every part of 
the statute, taken and compared together, from the words of the context, and 
such a construction adopted as will best effectuate the intention of the lawgiver. 
One part is referred to in order to help the construction of another, and the 
intent of the legislature is not to be collected from any particular expression, 
but from a general view of the whole act. Dwarris, 658, 698, 702, 703. And 
when it appears that the framers have used a word in a particular sense gener- 
ally in the act, it will be presumed that it was intended to be used in the same 
sense throughout the act, unless an intention to give it a different signification 
plainly appears in the particular part of the act alleged to be an exception to . 

5 [ 65 ] 



* 59 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

it is brought to bear upon an instrument framed by the people 
themselves, for themselves, and designed as a chart upon which 
every man, learned and unlearned, may be able to trace the lead- 
ing principles of government. 

But it must not be forgotten, in construing our constitutions, 
that in many particulars they are but the legitimate successors of 
the great charters of English liberty, whose provisions declaratory 
of the rights of the subject have acquired a well-understood mean- 
ing, which the people must be supposed to have had in view in 
adopting them. We cannot understand these provisions unless 

we understand their history ; and when we find them 
[* 60] expressed in * technical words, and words of art, we must 

suppose these words to be employed in their technical 
sense. When the constitution speaks of an ex post facto law, it 
means a law technically known by that designation ; the meaning 
of the phrase having become defined in the history of constitu- 
tional law, and being so familiar to the people that it is not neces- 
sary to employ language of a more popular character to designate 
it. The technical sense in these cases is the sense popularly un- 
derstood, because that is the sense fixed upon the words in legal 
and constitutional history where they have been employed for the 
protection of popular rights. 1 

the general meaning indicated. Ibid. 704, ef seq. When words are used to which 
the legislature bas given a plain and definite import in the act, it would be dan- 
gerous to put upon them a construction which would amount to holding that the 
legislature did not mean what it has expressed. It follows from these principles 
that the statute itself furnishes the best means of its own exposition ; and if the 
sense in which words were intended to be used can be clearly ascertained from 
all its parts and provisions, the intention thus indicated shall prevail, without 
resorting to other means of aiding in the construction. And these familiar rules 
of construction apply with at least as much force to the construction of written 
constitutions as to statutes ; the former being presumed to be framed with much 
greater care and consideration than the latter." Green v. Weller, 32 Miss. 678. 
1 It is quite possible, however, in applying constitutional maxims, to overlook 
entirely the reason upon which they rest, and " considering merely the letter, go 
but skin deep into the meaning." On the great debate on the motion for with- 
drawing the confidence of Parliament from the ministers, after the surrender of 
Cornwallis, — a debate which called out the best abilities of Fox and Pitt as well 
as of the ministry, and necessarily led to the discussion of the primary principle 
in free government, that taxation and representation, shall go together, — Sir 
James Mariott rose, and with great gravity proceeded to say, that if taxation 
and representation were to go hand in hand, then Britain had an undoubted 
right to tax America, because she was represented in the British Parliament. 

[66] 



/ 

CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. * 60 



The Common Law to he kept in View. 

In the same connection it may be remarked that the constitu- 
tions are to be construed in the light of the common law, and of 
the fact that its rules are still left in force. By this we do not 
mean that the common law is to control the constitution, or that 
the latter is to be warped and perverted in its meaning in order 
that no inroads, or as few as possible, may be made in the system 
of common-law rules, but only that for its definitions we are- to 
draw from that great fountain, and that, in judging what 
it means, we * are to keep in mind that it is not the begin- [* 61] 
ning of law for the State, but that it assumes the existence 
of a well-understood system, which is still to remain in force and 
be administered, but under such limitations and restrictions as 
that instrument imposes. It is a maxim with the courts that 
statutes in derogation of the common law shall be construed 
strictly; 1 a maxim which we fear is sometimes perverted to the 
overthrow of the legislative intent ; but the same maxim could 
seldom be properly applied to constitutions. When these instru- 
ments assume to make any change in the common law, the change 
designed is generally a radical one ; but as they do not go minutely 
into particulars, like the statutes, it will sometimes be easy to 
defeat a provision, if courts are at liberty to say that they will 
presume against any intention to alter the common law further 
than is expressly declared. A reasonable construction is what 
such an instrument demands and should receive ; and the real 

She was represented by the members for the county of Kent, of Avhich the thir- 
teen provinces were a part and parcel ; for in their charters they were to hold of 
the manor of Greenwich in Kent, of which manor they were by charter to be 
parcel! The opinion, it is said, " raised a very loud laugh, 1 ' but Sir James con- 
tinued to support it, and concluded by declaring that he would give the motion 
a hearty negative. Thus would he have settled a great principle of constitu- 
tional right, for which a seven years 1 bloody war had been waged, by putting it 
in the form of a meaningless legal fiction. Hansard's Debates, Vol: XXII. 
i p. 1184. Lord Mahon, following Lord Campbell, refers the origin of this won- 
derful argument to Mr. Hardinge, a Welsh judge, and nephew of Lord Camden. 
7 Mahon's Hist. 139. He was said to have been a good lawyer, but must have 
read the history of his country to little purpose. 

1 Broom's Maxims, 33 ; Sedg. on Stat. & Const. Law, 313. See Harrison o. 
Leach, 4 W. Va. 383. 

[67] 



\ 

* 61 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

question is, what the people meant, and not how meaningless their 

words can be made by the application of arbitrary rules. 1 
[* 62] * As a general thing, it is to be supposed that the same 
word is used in the same sense wherever it occurs in a 
constitution. Here again, however, great caution must be ob- 
served in applying an arbitrary rule ; for, as Mr. Justice Story 
has well observed, " It does not follow, either logically or gram- 
matically, that because a word is found in one connection in the 
Constitution with a definite sense, therefore the same sense is to 
be adopted in every other connection in which it occurs. This 
would be to suppose that the framers weighed only the force of 
single words, as philologists or critics, and not whole clauses and 
objects, as statesmen and practical reasoners. And yet nothing 
has been more common than to subject the Constitution to this 
narrow and mischievous criticism. 2 Men of ingenious and subtle 
minds, who seek for symmetry and harmony in language, having 

1 Under a clause of the Constitution of Michigan which provided that " the 
real and personal estate of every female acquired before marriage, and all prop- 
erty to which she may afterwards become entitled, by gift, grant, inheritance, or 
devise, shall be and remain tbe estate and property of such female, and shall not 
be liable for the debts, obligations, or engagements of her husband, and may be 
devised or bequeathed by her as if she were unmarried," it was held that a mar- 
ried woman could not sell her personal property without the consent of her 
husband, inasmuch as the power to do so was not expressly conferred, and the 
clause, being in derogation of the common law, was not to be extended by con- 
struction. Brown v. Fifield, 4 Mich. 322. The danger of applying arbitrary 
rules in the construction of constitutional principles might well, as it seems to us, 
be illustrated by this case. For while on the one hand it might be contended 
that, as a provision in derogation of the common law, the one quoted should 
receive a strict construction, on the other hand it might be insisted with perhaps 
equal reason that, as a remedial provision, in furtherance of natural right and 
justice, it should be liberally construed, to effect the beneficial purpose had in 
view. Thus arbitrary rules, of directly opposite tendency and force, would be 
contending for the mastery in the same case. The subsequent decisions under 
the same provision do not appear to have followed this lead. See White v. Zane, 
10 Mich. 3;j:; ; McKee v. Wilcox, 11 Mich. 358 ; Farr v. Sherman, 11 Mich. 33 ; 
Watson v. Thurber, 11 Mich. 457 ; Burdeno v. Amperse, 14 Mich. 91 ; Tong v. 
Marvin, 15 Mich. GO; Tillman v. Shackleton, 15 Mich. 447. The common law 
is certainly to be kept in view in the interpretation of such a clause, since other- 
wise we do not ascertain the evil designed to be remedied, and perhaps arc not 
able to fully understand and explain the terms employed ; but it is to be looked 
at with a view to the real intent, rather than for the purpose of arbitrarily 
restraining it. 

2 See remarks of Johnson, J., in Ogden v. Saunders, 12 Wheat. 290. 

[68] 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. * 62 

found in the Constitution a word used in some sense, which falls 
in with their favorite theory of interpreting it, have made that the 
standard by which to measure its use in every other part of the 
instrument. They have thus stretched it, as it were, on the bed 
of Procrustes, lopping off its meaning when it seemed too large 
for their purposes, and extending it when it seemed too short. 
They have thus distorted it to the most unnatural shapes, and 
crippled where they have sought only to adjust its proportions 
according to their own opinions." x And he gives many instances 
where, in the national Constitution, it is very manifest the same 
word is employed in different meanings. So that, while the rule 
may be sound as one of presumption merely, its force is but slight, 
and it must readily give way to a different intent appearing in the 
instrument. 

Operation to be Prospective. 

We shall venture also to express the opinion that a constitution 
should operate prospectively only, unless the words employed show 
a clear intention that it should have a retrospective effect. This 
is the rule in regard to statutes, and it is " one of such obvious 
convenience and justice, that it must always be adhered to in the 
construction of statutes, unless there is something on the face of 
the enactment putting it beyond doubt that the legislature meant 
it to operate retrospectively." 2 Retrospective legislation, 
except * when designed to cure formal defects, or other- [* 63] 
wise operate remedially, is commonly objectionable in 
principle, and apt to result in injustice ; and it is a sound rule of 
construction which refuses lightly to imply an intent to enact it. 
And we are aware of no reasons applicable to ordinary legislation 
which do not, upon this point, apply equally well to constitutions. 3 

1 Story on Const. § 454. And see Cherokee Nation v. Georgia, 5 Pet. 19. 

2 Moon v. Durden, 2 Exeh. 22. See Dash v. Van Kleek, 7 Johns. 477 ; 
Sayre v. Wisner, 8 Wend. 661 ; State v. Atwood, 11 Wis. 422 ; Hastings v. 
Lane, 3 Shep. 134 ; Brown v. Wilcox, 14 S. & M. 127 ; Price v. Mott, 52 Penn. 
St. 315; Ex parte Graham, 13 Rich. 277; Merwin v. Ballard, G6 N. C. 398; 
Broom's Maxims, 28. 

3 Iu Allbyer v. State, 10 Ohio, n. s. 588, a question arose under the provision 
of the constitution that " all laws of a general nature shall have a uniform opera- 
tion throughout the State." Another clause provided that all laws then in force, 
not inconsistent with the constitution, should continue in force until amended or 
repealed. Allbyer was convicted and sentenced to imprisonment under a crimes 

[69] 



63 CONSTITUTIONAL LIMITATIONS. [CH. IV. 



Implications. 

The implications from the provisions of a constitution are some- 
times exceedingly important, and have large influence upon its 
construction. In regard to the Constitution of the United States 
the rule has been laid down, that where a general power is con- 
ferred. or duty enjoined, every particular power necessary for the 
exercise of the one, or the performance of the other, is also con- 
ferred. 1 The same rule has been applied to the State constitution, 
with an important modification, by the Supreme Court of Illinois. 
"That other powers than those expressly granted may be, and 

often are, conferred by implication, is too well settled to 
[* 64] be * doubted. Under every constitution implication must 

be resorted to, in order to carry out the general grants of 
power. A constitution cannot from its very nature enter into a 
minute specification of all the minor powers naturally and obvi- 
ously included in and flowing from the great and ■ important ones 
which are expressly granted. It is therefore established as a gen- 
eral rule, that when a constitution gives a general power, or enjoins 
a duty, it also gives, by implication, every particular power neces- 
sary for the exercise of the one or the enjoyment of the other. 
The implication under this rule, however, must be a necessary, 

act previously in force, applicable to Hamilton County only, and the question 
was, whether that act was not inconsistent with the provision above quoted, and 
therefore repealed by it. The court held that the provision quoted evidently had 
regard to future and not to past legislation, and therefore was not repealed. A 
similar decision was made in State v. Barbee, 3 Ind. 258. See also State v. 
Thompson, 2 Kansas, 432; Slack v. Maysville, &c, R.R. Co., 13 B. Monr. 1; 
State v. Macon County Court, 41 Mo. 453. In Matter of Oliver Lee & Co.'s 
Bank, 21 N. Y. 12, Denio, J., says : " The rule laid down in Dash v. Van Kleek, 
7 Johns. 477, and other cases of that class, by which the courts are admonished 
to avoid, if possible, such an interpretation as would give a statute a retrospec- 
tive operation, has but a limited application, if any, to the construction of a con- 
stitution. When, therefore, we read in the provision under consideration, that 
the stockholders of every banking corporation shall be subject to a certain lia- 
bility, we are to attribute to the language its natural meaning, without inquiring 
whether private interests may not be prejudiced by such a sweeping mandate." 
The remark was obiter, as it was found that enough appeared in the constitution 
to show clearly that it was intended to apply to existing, as well as to subse- 
quently created banking institutions. 

1 Story on Const. § 430. See also United States v. Fisher, 2 Cranch, 358 ; 
McCulloch v. Maryland, 4 Wheat. 428. 

[70] 



CH. IV.] CONSTRUCTION OP STATE CONSTITUTIONS. * 64 

not a conjectural or argumentative one. And it is further modified 
by another rule, that where the means for the exercise of a granted 
power are given, no other or different means can be implied, as 
being more effective or convenient." : The rule applies to the 
exercise of power by all departments arid all officers, and will be 
touched upon incidentally hereafter. 

Akin to this is the rule that " where a power is granted in gen- 
eral terms, the power is to be construed as coextensive with the 
terms, unless some clear restriction upon it is deducible [ex- 
pressly or by implication] from the context." 2 This rule has 
been so frequently applied in restraining the legislature from 
encroaching upon the grant of power to the judiciary, that we 
shall content ourselves in this place with a reference to the cases 
collected upon this subject and given in another chapter. 

Another rule of construction is, that when the constitution 
defines the circumstances under which a right may be exercised 
or a penalty imposed, the specification is an implied prohibition 
against legislative interference, to add to the condition, or to ex- 
tend the penalty to other cases. On this ground it has been held 
by the Supreme Court of Maryland, that where the constitution 
defined the qualifications of an officer, it was not in the power of 
the legislature to change or superadd to them, unless the power to 
do so was expressly or by necessary implication conferred by the 
constitution itself. 3 

* The Light which the Purpose to be accomplished may [* 65] 
afford in Construction. 

The considerations thus far suggested are such as have no regard 
to extrinsic circumstances, but are those by the aid of which we 
seek to arrive at the meaning of the constitution from an exami- 

1 Field v. People, 2 Scam. 83. See Fletcher v. Oliver, 25 Ark. 298. 

2 Story on Const. §§ 424-426. 

3 Thomas v. Owens, 4 Md. 189. To the same effect see Matter of Dorsey, 
7 Port. 293. So the legislature cannot add to the constitutional qualifications of 
votei's. Rison v. Farr, 24 Ark. 161 ; St. Joseph, &c, R.R. Co. v. Buchanan 
County Court, 39 Mo. 485; State v. Williams, 5 Wis. 308; Monroe v. Collins, 
17 Ohio, n. s. 665; State v. Symonds, 57 Me. .148; State v. Staten, 6 Cold. 
243 ; Davies v. McKeeby, 5 Nev. 369 ; McCafferty v. Guyer, 59 Penn. St. 109 ; 
Quin v. State, 35 Md. 485 ; Clayton v. Harris, 7 Nev. 64 ; Randolph v. Good, 
3 W. Va. 551. 

[71] 



* 65 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

nation of the words employed. It is possible, however, that after 
we shall have made use of all the lights which the instrument itself 
affords, there may still be doubts to clear up and ambiguities to 
explain. Then, and only then, are we warranted in seeking else- 
where for aid. We are not to import difficulties into a constitu- 
tion, by a consideration of extrinsic facts, when none appear upon 
its face. If, however, a difficulty really exists, which an examina- 
tion of every part of the instrument does not enable us to remove, 
there are certain extrinsic aids which may be resorted to, and 
which are more or less satisfactory in the light they afford. 
Among these aids is a contemplation of the object to be accom- 
plished or the mischief designed to be remedied or guarded against 
by the clause in which the ambiguity is met with. 1 " When we 
once know the reason which alone determined the will of the law- 
makers, we ought to interpret and apply the words used in a 
manner suitable and consonant to that reason, and as will be best 
calculated to effectuate the intent. Great caution should always 
be observed in the application of this rule to particular given cases ; 
that is, we ought always to be certain that we do know, and have 
actually ascertained, the true and only reason which induced the 
act. It is never allowable to indulge in vague and uncertain con- 
jecture, or in supposed reasons and views of the framers of an act, 
where there are none known with any degree of certainty." 2 The 
prior state of the law will sometimes furnish the clue to the real 
meaning of the ambiguous provision, 3 and it is especially impor- 
tant to look into it if the constitution is the successor to another, 
and in the particular in question essential changes have apparently 
been made. 4 

[* Q6~] * Proceedings of the Constitutional Convention. 

When the inquiry is directed to ascertaining the mischief de- 
signed to be remedied, or the purpose sought to be accomplished 

1 Alexander v. Worthington, 5 Md. 471 ; District Township v. Dubuque, 7 
Iowa, 262. See Smith v. People, 47 N. Y. 330. 

2 Smith on Stat, and Const. Construction, 634. See also remarks of Bronson, 
J., in Purdy v. People, 2 Hill, 35-37. • 

3 Baltimore v. State, 15 Md. 376 ; Henry v. Tilson, 19 Vt. 447 ; Hamilton v. 
St. Louis County Court, 15 Mo. 30; People v. Gies, 25 Mich. 83; Story on 
Const. § 428. 

4 People v. Blodgett, 13 Mich. 147. 

[72] 



CH. IV.] CONSTRUCTION OP STATE CONSTITUTIONS. * 66 

by a particular provision, it may be proper to examine the pro- 
ceedings of the convention which framed the instrument. 1 Where 
the proceedings clearly point out the purpose of the provision, the 
aid will be valuable and satisfactory ; but where the question is 
one of abstract meaning, it will be difficult to derive from this 
source much reliable assistance in interpretation. Every member 
of such a convention acts upon such motives and reasons as 
influence him personally, and the motions and debates do not 
necessarily indicate the purpose of a majority of a convention in 
adopting a particular clause. It is quite possible for a clause to 
appear so clear and unambiguous to the members of a convention 
as to require neither discussion nor illustration ; and the few 
remarks made concerning it in the convention might have a plain 
tendency to lead directly away from the meaning in the minds of 
the majority. It is equally possible for a part of the members to 
accept a clause in one sense and a part in another. And even if 
we were certain we had attained to the meaning of the convention, 
it is by no means to be allowed a controlling force, especially if that 
meaning appears not to be the one which the words would most 
naturally and obviously convey. 2 For as the constitution does 
not derive its force from the convention which framed, but from 
the people who ratified it, the intent to be arrived at is that of the 
people, and it is not to be supposed that they have looked for any 
dark or abstruse meaning in the words employed, but rather that 
they have accepted them in the sense most obvious to the common 
understanding, and ratified the instrument in the belief that that 
was the sense designed to be conveyed. 3 These proceedings there- 
fore are less conclusive of the proper construction of the instru- 
ment than are legislative proceedings of the proper construction 
of a statute ; since in the latter case it is the intent of the 
* legislature we seek, while in the former we are endeav- [* 67] 
oring to arrive at the intent of the people through the dis- 
cussions and deliberations of their representatives. The history 

1 Per Walworth, Chancellor, Coutant v. People, 11 Wend. 518, and Clark v. 
People, 26 Wend. 602 ; per Bronson, J., Purdy v. People, 2 Hill, 37; People 
v. N. Y. Central Railroad Co., 21 1ST. Y. 496. See State v. Kennon, 7 Ohio, 
n. s. 563. 

2 Taylor v. Taylor, 10 Minn. 126. And see Eakin v. Racob, 12 S. & R. 352 ; 
Aldrklge v. Williams, 3 How. 1 ; State v. Doron, 5 Nev. 399. 

3 State v. Mace, 5 Md. 318 ; Manly v. State, 7 Md. 117. 

[73] 



* 67 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

of the calling of the convention, the causes which led to it, and the 
discussions and issues before the people at the time of the election 
of the delegates, will sometimes be quite as instructive and satis- 
factory as any thing to be gathered from the proceedings of the 
convention. 

Contemporaneous and Practical Construction. 

An important question which now suggests itself is this : How 
far the contemporaneous construction, or the subsequent practical 
construction of any particular provision of the constitution, is to 
have weight with the courts when the time arrives at which a 
judicial decision becomes necessary. Contemporaneous construc- 
tion may consist simply in the understanding with which the 
people received it at the time, or in the acts done in putting it in 
operation, and which necessarily assume that it is to be construed 
in a particular way. In the first case it can have very little force, 
because the evidences of the public understanding, when nothing 
has been done under the provision in question, must always 
necessarily be vague and indecisive. But where there has been a 
practical construction, which has been acquiesced in for a consid- 
erable period, considerations in favor of adhering to this construc- 
tion sometimes present themselves to the courts with a plausibility 
and force which it is not easy to resist. Indeed, where a particular 
construction has been generally accepted as correct, and especially 
when this lias occurred contemporaneously with the adoption of 
the constitution, and by those who had opportunity to understand 
the intention of the instrument, it is not to be denied that a strong 
presumption exists that the construction rightly interprets the 
intention. Especially where this has been given by officers in 
the discharge of their duty, and rights have accrued in reliance 
upon it, which would be divested by a decision that the construc- 
tion was erroneous, the argument ah inconvenienti is sometimes 
allowed to have very great weight. 

The Supreme Court of the United States has had frequent 

occasion to consider this question. In Stewart v. Laird, 1 decided 

in 1803, that court sustained the authority of its members to sit 

as circuit judges on the ground of a practical construction, 

[* 68] * commencing with the organization of the government. 

1 Cranch, 299. 
[74] 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. * 68 

In Martin v. Hunter's Lessee, 1 Justice Story, after holding 
that the appellate power of the United States extends to cases 
pending in the State courts, and that the 25th section of the 
Judiciary Act, which authorized its exercise, was supported by 
the letter and spirit of the Constitution, proceeds to say : " Strong 
as this conclusion stands upon the general language of the Con- 
stitution, it may still derive support from other sources. It is an 
historical fact, that this exposition of the Constitution, extending 
its appellate power to State courts, was, previous to its adoption, 
uniformly and publicly avowed by its friends, and admitted by its 
enemies, as the basis of their respective reasonings both in and 
out of the State conventions. It is an historical fact, that at the 
time when the Judiciary Act was submitted to the deliberations of 
the First Congress, composed, as it was, not only of men of great 
learning and ability, but of men who had acted a principal part in 
framing, supporting, or opposing that Constitution, the same ex- 
position was explicitly declared and admitted by the friends and 
by the opponents of that system. It is an historical fact, that the 
Supreme Court of the United States have from time to time sus- 
tained this appellate jurisdiction in a great variety of cases, brought 
from the tribunals of many of the most important States in the 
Union, and that no State tribunal has ever breathed a judicial 
doubt on the subject, or declined to obey the mandate of the 
Supreme Court until the present occasion. This weight of con- 
temporaneous exposition by all parties, this acquiescence by en- 
lightened State courts, and these judicial decisions by the Supreme 
Court through so long a period, do, as we think, place the doctrine 
upon a foundation of authority which cannot be shaken without 
delivering over the subject to perpetual and irremediable doubts." 
The same doctrine was subsequently supported by Chief Justice 
Marshall in a case involving the same point, and in which he says 
that " great weight has always been attached, and very rightly 
attached, to contemporaneous exposition." 2 

In Bank of United States v. Halstead 3 the question was made, 
whether the laws of the United States authorizing the courts 
of the Union so to alter the form of process of execution used 
in the Supreme Courts of the States in September, 1789, as to 

1 1 Wheat. 351. See Story on Const. § 405-408. 

2 Cohens v. Virginia, 6 Wheat. 418. 

3 10 Wheat. 63. 

[75] 



* 68 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

[*" 69] subject to * execution lands and other property not thus 
subject by the State laws in force at that time, were con- 
stitutional ; and Mr. Justice Thompson, in language similar to that 
of Chief Justice Marshall in the preceding case, says : " If any 
doubt existed whether the act of 1792 vests such power in the 
courts, or with respect to its constitutionality, the practical con- 
struction given to it ought to have great weight in determining 
both questions." And Mr. Justice Johnson assigns a reason for 
this in a subsequent case : " Every candid mind will admit that 
this is a very different thing from contending that the frequent 
repetition of wrong will create a right. It proceeds upon the pre- 
sumption that the contemporaries of the Constitution have claims 
to our deference on the question of right, because they had the 
best opportunities of informing themselves of the understanding 
of the framers of the Constitution, and of the sense put upon it by 
the people when it was adopted by them." l 

Great deference has been paid in all cases to the action of the 
executive department, where its officers have been called upon, 
under the responsibilities of their official oaths, to inaugurate a 
new system, and where it is to be presumed, they have carefully 
and conscientiously weighed all considerations, and endeavored 
to keep within the letter and the spirit of the Constitution. If 
the question involved is really one of doubt, the force of their 
judgment, especially in view of the injurious consequences that 
may result from disregarding it, is fairly entitled to turn the scale 
in the judicial mind. 2 

Where, however, no ambiguity or doubt appears in the law, we 
think the same rule obtains here as in other cases, that the court 
should confine its attention to the law, and not allow extrinsic 

1 Ogden v. Saunders, 12 Wheat. 290. See Pike v. Megoun, 44 Mo. 499; 
State v. Parkinson, 5 Nev. 15. 

2 Union Insurance Co. v. Hoge, 21 How. 66 ; Edward's Lessee v. Darby, 12 
Wheat. 210 ; Hughes v. Hughes, 4 T. B. Monr. 42 ; Chambers v. Fisk, 22 Texas, 
504; Britton v. Ferry, 14 Mich. 66 ; Plummer v. Plumraer, 37 Miss. 185 ; Bur- 
gess v. Pue, 2 Gill, 11 ; State v. Mayhew, ib. 487 ; Coutant v. People, 11 Wend. 
511 ; Baltimore v. State, 15 Md. 876 ; Farmers and Mechanics Bank v. Smith, 
3 S. & R. 63 ; N orris v. Clymer, 2 Penn. St. 277 ; Moers v. City of Reading, 
21 Penn. St. 188; Washington v. Page, 4'Cal. 388; Surgett v. Lapice, 8 How. 
68 ; Bissell v. Penrose, ib. 336 ; Troup v. Haight, Hopk. 267 ; United States v. 
Gilmore, 8 WalL.SSO ; Hedgecock v. Davis, 64 N. C. 652; Lafayette, &c. R.R. 
Co. v. Geiger, 34 Ind. 203. 

[76] 



CH. IV.] CONSTRUCTION OP STATE CONSTITUTIONS. * 69 

circumstances to introduce a difficulty where the language is plain. 
To allow force to a practical construction in such a case would be 
to suffer manifest perversions to defeat the evident pur- 
pose of the * law-makers. " Contemporary construction [* 70] 
. . . can never abrogate the text ; it can never fritter 
away its obvious sense ; it can never narrow down its true limita- 
tions ; it can never enlarge its natural boundaries." 1 While we 
conceive this to be the true and only safe rule, we shall be obliged 
to confess that some of the cases appear, on first reading, not to 
have observed these limitations. In the case first cited of Stewart 
v. Laird, 2 the practical construction was regarded as conclusive. 
To the objection that the judges of the Supreme Court had no 
right to sit as circuit judges, the court say : " It is sufficient to 
observe that practice and acquiescence under it for a period of 
several years, commencing with the organization of the judicial 
system, affords an irresistible answer, and has indeed fixed the 
construction. It is a contemporary interpretation of the most 
forcible nature. This practical exposition is too strong and obsti- 
nate to be shaken or controlled. Of course the question is at rest, 
and ought not now to be disturbed." This is certainly very strong 
language ; but that of a very similar character was used by the 
Supreme Court of Massachusetts in one case where large and val- 
uable estates depended upon a particular construction of a statute, 
and very great mischief would follow from changing it. The court 
said that, " although if it were now res Integra, it might be very 
difficult to maintain such a construction, yet at this day the argu- 
ment db inconvenienti applies with great weight. We cannot shake 
a principle which in practice has so long and so extensively pre- 
vailed. If the practice originated in error, yet the error is now so 
common that it must have the force of law. The legal ground on 
which this provision is now supported is, that long and continued 
usage furnishes a contemporaneous construction which must pre- 
vail over the mere technical import of the words." 3 Language 
nearly as strong was also used by the Supreme Court of Maryland, 
where the point involved was the possession of a certain power by 

1 Story on Const. § 407. And see Evans v. Myers, 25 Penn. St. 116; 
Sadler v. Langham, 34 Ala. 311 ; Barnes v. First Parish in Falmouth, 6 Mass. 
417. 

2 1 Cranch, 299. 

3 Rogers v. Goodwin, 2 Mass. 478. 

[77] 



* 70 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

the legislature, which it had constantly exercised for nearly seventy 
years. 1 

It is believed, however, that in each of these cases an examina- 
tion of the Constitution left in the minds of the judges 
[* 71] sufficient * doubt upon the question of its violation to 
warrant their looking elsewhere for aids in interpretation, 
and that the cases are not in conflict with the general rule as 
above laid down. Acquiescence for no length of time can legalize 
a clear usurpation of power, where the people have plainly ex- 
pressed their will in the constitution, and appointed judicial tri- 
bunals to enforce it. A power is frequently yielded to merely 
because it is claimed, and it may be exercised for a long period, 
in violation of the constitutional prohibition, without the mischief 
which the Constitution was designed to guard against appearing, 
or without any one being sufficiently interested in the subject to 
raise the question ; but these circumstances cannot be allowed to 
sanction a clear infraction of the Constitution.- 2 We think we 
allow to contemporary and practical construction its full legitimate 
force when we suffer it, where it is clear and uniform, to solve in 
its own favor the doubts which arise on reading the instrument to 
be construed. 3 

1 State v. Mayhew, 2 Gill, 487. In Essex Co. v. Pacific Mills, 14 Allen, 389, 
the Supreme Court of Massachusetts expressed the opinion that the constitu- 
tionality of the acts of Congress making treasury notes a legal tender, ought not 
to be treated by a State court as open to discussion after the notes had practi- 
cally constituted the currency of the country for five years. At a still later day, 
however, the Supreme Court of the United States held these acts void, though 
they afterwards receded from this position. 

2 See further, on this subject, the case of Sadler v. Langham, 34 Ala. 311, 
334 ; People v. Allen, 42 N. Y. 384. 

3 There are cases which clearly go further than any we have quoted, and 
which sustain legislative action which they hold to be usurpation, on the sole 
ground of long acquiescence. Thus in Brigham v. Miller, 17 Ohio, 446, the 
question was, Has the legislature power to grant divorces ? The court say : 
" Our legislature have assumed and exercised this power for a period of more 
than forty years, although a clear and palpable assumption of power, and an 
encroachment upon the judicial department, in violation of the Constitution. To 
deny this long-exercised power, and declare all the consequences resulting from 
it void, is pregnant with fearful consequences. If it affected only the rights of 
property, we should not hesitate ; but second marriages have been contracted 
and children born, and it would bastardize all these, although born under the 
sanction of an apparent wedlock, authorized by an act of the legislature before 
they were born, and in consequence of which the relation was formed which gave 

[78] 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. * 72 



* Unjust Provisions. [* 72] 

We have elsewhere expressed the opinion that a statute cannot 
be declared void because opposed to a supposed general 
intent or * spirit which it is thought pervades or lies con- [* 73] 
cealed in the Constitution, but wholly unexpressed, or be- 

them birth. On account of these children, and for them only, we hesitate. 
And in view of this, we are constrained to content ourselves with simply declar- 
ing that the exercise of the power of granting divorces, on the part of the legis- 
lature, is unwarranted and unconstitutional, an encroachment upon the duties of 
the judiciary, and a striking down of the dearest rights of individuals, without 
authority of law. We trust we have said enough to vindicate the Constitution, 
and feel confident that no department of state has any disposition to violate it, 
and that the evil will cease." So in Johnson v. Joliet and Chicago Railroad Co., 
23 111. 207, the question was whether railroad corporations could be created by 
special law, without a special declaration by way of preamble that the object to 
be accomplished could not be attained by general law. The court say : " It is 
now too late to make this objection, since by the action of the General Assembly 
under this clause, special acts have been so long the order of the day and the 
ruling passion with every legislature which has convened under the Constitution, 
until their acts of this description fill a huge and misshapen volume, and impor- 
tant and valuable rights are claimed under them. The clause has been wholly 
disregarded, and it would now produce far-spread ruin to declare such acts un- 
constitutional and void. It is now safer and more just to all parties, to declare 
that it must be understood, that in the opinion of the General Assembly, at the 
time of passing the special act, its object could not be attained under the general 
law, and this without any recital by way of preamble, as in the act to incorpo- 
rate the Central Railroad Company. That preamble was placed there by the 
writer of this opinion, and a strict compliance with this clause of the Constitu- 
tion would have rendered it necessary in every subsequent act. But the legisla- 
ture, in their wisdom, have thought differently, and have acted differently, until 
now our special legislation and its mischiefs are beyond recovery or remedy." 
These cases certainly presented very strong motives for declaring the law to be 
what it was not ; but it would have been interesting and useful if either of these 
learned courts had enumerated the evils that must be placed in the opposite scale 
when the question is whether a constitutional rule shall be disregarded; not the 
least of which is, the encouragement of a disposition on the part of legislative 
bodies to set aside constitutional restrictions, in the belief that, if the unconsti- 
tutional law can once be put in force, and large interests enlisted under it, the 
courts will not venture to declare it void, but will submit to the usurpation, no 
matter how gross and daring. We agree with the Supreme Court of Indiana, 
that in construing constitutions, courts have nothing to do with the argument ab 
inconvenienti, and should not " bend the Constitution to suit the law of the hour." 
Greencastle Township v. Black, 5 Ind. 565 ; and with Bronson, Ch. J., in what 
he says in Oakley v. Aspinwall, 3 N. Y. 568: " It is highly probable that incon- 
veniences will result from following the Constitution as it is written. But that 

[79] 



* 73 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

cause, in the opinion of the court, it violates fundamental rights 
or principles, if it was passed in the exercise of a power which the 
Constitution confers. Still less will the injustice of a constitu- 
tional provision authorize the courts to disregard it, or indirectly 
to annul it by construing it away. It is quite possible that the 
people may, under the influence of temporary prejudice, or mis- 
taken view of public policy, incorporate provisions in their charter 
of government, infringing upon the right of the individual man, or 
upon principles which ought to be regarded as sacred and funda- 
mental in republican government ; and quite possible also that 
obnoxious classes may be unjustly disfranchised. The remedy for 
such injustice must rest with the people themselves, through an 
amendment of" their work when better counsels prevail. Such pro- 
visions, when free from doubt, must receive the same construction 
as any other. We do not say, however, that if a clause should be 
found in a constitution which should appear at first blush to de- 
consideration can have no force with me. It is not for us, but for those who 
made the instrument, to supply its defects. If the legislature or the courts may 
take that office upon themselves, or if, under color of construction, or upon any 
other specious ground, they may depart from that which is plainly declared, the 
people may well despair of ever being able to set any boundary to the powers of 
the government. Written constitutions will be more than useless. Believing as 
I do that the success of free institutions depends upon a rigid adherence to the 
fundamental law, I have never yielded to considerations of expediency in ex- 
pounding it. There is always some plausible reason for latitudinarian construc- 
tions which are resorted to for the purpose of acquiring power ; some evil to be 
avoided or some good to be attained by pushing the powers of the government 
beyond their legitimate boundary. It is by yielding to such influences that con- 
stitutions are gradually undermined and finally overthrown. My rule has ever 
been to follow the fundamental law as it is written, regardless of consequences. 
If the law does not work well, the people can amend it ; and inconveniences can 
be borne long enough to await that process. But if the legislature or the courts 
undertake to cure defects by forced and unnatural constructions, they inflict a 
wound upon the Constitution which nothing can heal. One step taken by the 
legislature or the judiciary, in enlarging the powers of the government, opens 
the door for another which will be sure to follow ; and so the process goes on 
until all respect for the fundamental law is lost, and the powers of the govern- 
ment are just what those in authority please to call them." Whether there may 
not be circumstances under which the State can be held justly estopped from 
alleging the invalidity of its own action in apportioning the political divisions of the 
State, and imposing burdens on citizens, where such action has been acquiesced 
in for a considerable period, and rights have been acquired through bearing the 
burdens under it, see Ramsey v. People, 19 N. Y. 41 ; People v. Maynard, 15 
Mich. 470; Kneeland v. Milwaukee, 15 Wis. 454. 

[80] 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. * 73 

mand a construction leading to monstrous and absurd conse- 
quences, it might not be the duty of the court to question and 
cross-question such clause closely, with a view to discover in it, if 
possible, some other meaning more consistent with the general 
purposes and aims of these instruments. When such a case arises, 
it will be time to consider it. 1 

Duty in Case of Doubt. 

But when all the legitimate lights for ascertaining the mean- 
ing of the Constitution have been made use of, it may still happen 
that the construction remains a matter of doubt. In such a case 
it seems clear that every one called upon to act where, in 
his * opinion, the proposed action would be of doubtful [* 74] 
constitutionality, is bound upon the doubt alone to abstain 
from acting. Whoever derives power from the Constitution to 
perform any public function is disloyal to that instrument, and 
grossly derelict in duty, if he does that which he is not reasonably 
satisfied the Constitution permits. Whether the power be legisla- 
tive, executive, or judicial, there is manifest disregard of constitu- 
tional and moral obligation by one who, having taken an oath to 
observe that instrument, takes part in an action which he cannot 
say he believes to be no violation of its provisions. A doubt of the 
constitutionality of any proposed legislative enactment should in 
any case be reason sufficient for refusing to adopt it ; and, if legis- 
lators do not act upon this principle, the reasons upon which are 
based the judicial decisions sustaining legislation in very many 
cases will cease to be of force. 

Directory and Mandatory Provisions. 

The important question sometimes presents itself, whether we 
are authorized in any case, when the meaning of a clause of the 
Constitution is arrived at, to give it such practical construction as 
will leave it optional with the department or officer to which it 
is addressed to obey it or not as he shall see fit. In respect to 
statutes it has long been settled that particular provisions may be 
regarded as directory merely ; by which is meant that they are to 
be considered as giving directions which ought to be followed, but 

1 McMullen v. Hodge, 5 Texas, 34. See Clarke v. Irwin, 5 Nev. 111. 

6 [81] 



* 74 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

not as so limiting the power in respect to which the directions 
are given that it cannot be effectually exercised without observing 
them. The force of many of the decisions on this subject will be 
readily assented to by all ; while others are sometimes thought to 
go to the extent of nullifying the intent of the legislature in essen- 
tial particulars. It is not our purpose to examine the several cases 
critically, or to attempt — what we deem impossible — to reconcile 
them all ; but we shall content ourselves with quoting from a few, 
with a view, if practicable, to ascertaining some line of principle 
upon which they can be classified. 

There are cases where, whether a statute was to be regarded as 
merely directory or not, was made to depend upon the employing 
or failing to employ negative words which imported that the act 
should be done in a particular manner or time, and not 
[* 75] * otherwise. 1 The use of such words is often very con- 
clusive of an intent to impose a limitation ; but their 
absence is by no means equally conclusive that the statute was 
not designed to be mandatory. 2 Lord Mansfield would have the 
question whether mandatory or not depend upon whether that 
which was directed to be done was or was not of the essence of the 
thing required. 3 The Supreme Court of New York, in an opinion 
afterwards approved by the Court of Appeals, laid down the rule 
as one settled by authority, that " statutes directing the mode of 
proceeding by public officers are directory, and are not regarded as 
essential to the validity of the proceedings themselves, unless it be 
so declared in the statute." 4 This rule strikes us as very general, 
and as likely to include within its scope, in many cases, things 
which are of the very essence of the proceeding. The questions 
in that case were questions of irregularity under election laws, not 
in any way hindering the complete expression of the will of the 
electors ; and the court was doubtless right in holding that the 
election was not to be avoided for a failure in the officers appointed 
for its conduct to comply in all respects with the directions of 
the statute there in question. The same court in another case 
say : " Statutory requisitions are deemed directory only when they 

1 Slayton v. Hulings, 7 Ind. 144 ; King v. Inhabitants of St. Gregory, 2 Ad. 
& El. 99 ; King v. Inhabitants of Hipswell, 8 B. & C. 466. 

2 District Township v. Dubuque, 7 Iowa, 284. 

3 Rex v. Locksdale, 1 Burr. 447. 

4 People v. Cook, 14 Barb. 290 ; s. c. 8 N. Y. 6 . 

[82] 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. * 75 

relate to some immaterial matter, where a compliance is a matter 
of convenience rather than of substance." 1 The Supreme Court 
of Michigan, in a case involving the validity of proceedings on the 
sale of lands for taxes, laid down the rule that " what the law 
requires to be done for the protection of the tax-payer is mandatory, 
and cannot be regarded as directory merely." 2 A similar rule was 
recognized in a recent case in Illinois. Commissioners had been 
appointed to ascertain and assess the damage and recompense due 
to the owners of land which might be taken, on the real estate of 
the persons benefited by a certain local improvement, in proportion 
as nearly as might be to the benefits resulting to each. By the 
statute, when the assessment was completed, the com- 
missioners were to sign and return the same to the * city [* 76] 
council within forty days of their appointment. This 
provision was not complied with, but return was made afterwards, 
and the question was raised as to its validity when thus made. In 
the opinion of the court, this question was to be decided by 
ascertaining whether any advantage would be lost, or right 
destroyed, or benefit sacrificed, either to the public or to any 
individual, by holding the provision directory. After remarking 
that they had held an assessment under the general revenue law, 
returned after the time appointed by law, as void, because the 
person assessed would lose the benefit of an appeal from the 
assessment, 3 they say of the statute before the court : " There are 
no negative words used declaring that the functions of the com- 
missioners shall cease after the expiration of the forty days, or 
that they shall not make their return after that time ; nor have 
we been able to discover the least right, benefit, or advantage which 
the property owner could derive from having the return made 
within that time, and not after. No time is limited and made 
dependent on that time, within which the owner of the property 
may apply to have the assessment reviewed or corrected. The 

1 People v. Schermerhorn, 19 Barb. 558. If a statute imposes a duty and 
gives the means of performing that duty, it must be held to be mandatory. 
Veazie v. China, 50 Me. 518. 

2 Clark v. Crane, 5 Mich. 154. See also Shawnee County v. Carter, 2 Kan- 
sas, 115. In Life Association v. Board of Assessors, 49 Mo. 512, it is held that 
a constitutional provision that "all property subject to taxation ought to be 
taxed in proportion to its value " is a prohibition against its being taxed in any 
other mode, and the word ought is mandatory. 

3 Marsh v. Chestnut, 14 111. 223. 

[83] 



* 76 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

next section requires the clerk to give ten days' notice that the 
assessment has been returned, specifying the day when objections 
may be made to the assessment before the common council by 
parties interested, which hearing may be adjourned from day to 
day ; and the common council is empowered in its discretion 
to confirm or annul the assessment altogether, or to refer it back to 
the same commissioners, or to others to be by them appointed. As 
the property owner has the same time and opportunity to prepare 
himself to object to the assessment and have it corrected, whether 
the return be made before or after the expiration of the forty days, 
the case differs from that of Chestnut v. Marsh, 1 at the very point 
on which that case turned. Nor is there any other portion of the 
chapter which we have discovered, bringing it within the principle 
of that case, which is the well-recognized rule in all the books." 2 
The rule is nowhere more clearly stated than by Chief Justice 
Shaiv, in Torrey v. Milbury, 3 which was also a tax case. 
[* 77] " In * considering the various statutes regulating the as- 
sessment of taxes, and the measures preliminary thereto, 
it is not always easy to distinguish which are conditions precedent 
to the legality and validity of the tax, and which are directory 
merely, and do not constitute conditions. One rule is very plain 
and well settled, that all those measures that are intended for the 
security of the citizen, for insuring equality of taxation, and to 
enable every one to know with reasonable certainty for what polls 
and for what real estate he is taxed, and for what all those who are 

| ' 14 111. 223. 

2 Wheeler v. Chicago, 24 111. 108. 

3 21 Pick. 67. We commend in the same connection the views of Lewis, Ch. 
J., in Corbett v. Bradley, 7 Nev. 108 : " When any requirement of a statute is 
held to be directory, and therefore not material to be followed, it is upon the 
assumption that the legislature itself so considered it, and did not make the right 
conferred dependent upon a compliance with the form prescribed for securing it. It 
is upon this principle that the courts often hold the time designated in a statute, 
where a thing is to be done, to be directory. No court certainly has the right to 
hold any requirement of a law unnecessary to be complied with, unless it be mani- 
fest the legislature did not intend to impose the consequence which would naturally 
follow from a non-compliance, or which would result from holding the requirement 
mandatory or indispensable. If it be clear that no penalty was intended to be 
imposed for a non-compliance, then, as a matter of course, it is but carrying out 
the will of the legislature to. declare the statute in that respect to be simply 
directory. But, if there be any thing to indicate the contrary, a full compliance 
with it must be enforced." 

[84] 



CH. IV.] CONSTRUCTION OP STATE CONSTITUTIONS. * 77 

liable with him are taxed, are conditions precedent ; and if they 
are not observed, he is not legally taxed ; and he may resist it in 
any of the modes authorized by law for contesting the validity of 
the tax. But many regulations are made by statutes designed for 
the information of assessors and officers, and intended to promote 
method, system, and uniformity in the modes of proceeding, a com- 
pliance or non-compliance with which does in no respect affect the 
rights of tax-paying citizens. These may be considered directory. 
Officers may be liable to legal animadversion, perhaps to punish- 
ment, for not observing them ; but yet their observance is not a 
condition precedent to the validity of the tax." 

We shall quote further only from a single other case upon this 
point. The Supreme Court of Wisconsin, in considering the va- 
lidity of a statute not published within the time required by law, 
" understand the doctrine concerning directory statutes to be this : 
that where there is no substantial reason why the thing to be done 
might not as well be done after the time prescribed as before, no 
presumption that by allowing it to be so done it may work an 
injury or wrong, nothing in the act itself, or in other acts relating 
to the same subject-matter, indicating that the legislature did not 
intend that it should rather be done after the time prescribed than 
not to be done at all, there the courts assume that the intent was, 
that if not done within the time prescribed it might be done after- 
wards. But when any of these reasons intervene, then the limit 
is established." 1 

These cases perhaps sufficiently indicate the rules, so far as any 
of general application can be declared, which are to be made use of 
in determining whether the provisions of a statute are mandatory 
or directory. Those directions which are not of the essence of the 
thing to be done, but which are given with a view merely 
* to the proper, orderly, and prompt conduct of the busi- [* 78] 
ness, and by a failure to obey which the rights of those 
interested will not be prejudiced, are not commonly to be regarded 
as mandatory ; and if the act is performed, but not in the time or 
in the precise mode indicated, it may still be sufficient, if that 

1 State v. Lean, 9 Wis. 292. See further, for the views of this court on the 
subject here discussed, Wendel v. Durbin, 26 Wis. 390. The general doctrine 
of the cases above quoted is approved and followed in French v. Edwards, 13 
Wall. 506. 

[85] 



* 78 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

which is done accomplishes the substantial purpose of the statute. 1 
But this rule presupposes that no negative words are employed in 
the statute which expressly or by necessary implication forbid the 
doing of the act at any other time or in any other manner than as 
directed. Even -as thus laid down and restricted, the doctrine is 
one to be applied with much circumspection ; for it is not to be 
denied that the courts have sometimes, in their anxiety to sustain 
the proceedings of careless or incompetent officers, gone very far 
in substituting a judicial view of what was essential for that 
declared by the legislature. 2 

But the courts tread upon very dangerous ground when they 
venture to apply the rules which distinguish directory and manda- 
tory statutes to the provisions of a constitution. Constitutions do 
not usually undertake to prescribe mere rules of proceeding, ex- 
cept when such rules are looked upon as essential to the thing to 
be done ; and they must then be regarded in the light of limita- 
tions upon the power to be exercised. It is the province of an 
instrument of this solemn and permanent character to establish 
those fundamental maxims, and fix those unvarying rules, 
[* 79] by which all * departments of the government must at all 
times shape their conduct ; and if it descends to prescribing 

1 The following, in addition to those cited, are some of the cases in this coun- 
try in which statutes have been declared directory only : Pond v. Negus, 3 Mass. 
230 ; Williams v. School District, 21 Pick. 75 ; City of Lowell v. Hadley, 8 Met. 
180 ; Holland v. Osgood, 8 Vt. 280 ; Corliss v. Corliss, ib. 390 ; People v. Allen, 
6 Wend. 486 ; Marchant v. Langworthy, 6 Hill, 646 ; Ex parte Heath, 3 Hill, 
43; People v. Holley, 12 Wend. 481 ; Jackson v. Young, 5 Cow. 269; Striker 
v. Kelley, 7 Hill, 9; People v. Peck, 11 Wend. 604; Matter of Mohawk and 
Hudson Railroad Co., 19 Wend. 143 ; People v. Runkel, 9 Johns. 147 ; Gale v. 
Mead, 2 Denio, 160 ; Doughty v. Hope, 3 Denio, 252 ; Elmendorf v. Mayor, &c, 
of New York, 25 Wend. 696; Thames Manufacturing Co. v. Lathrop, 7 Conn. 
550; Colt v. Eves, 12 Conn. 243; People v. Doe, 1 Mich. 451 ; Parks v. Good- 
win, 1 Dou°\ (Mich.) 56 , Hickey v. Hinsdale, 8 Mich. 267 ; People v. Hartwell, 
12 Mich. 508; State v. McGinley, 4 Ind. 7; Slayton v. Hillings, 7 Ind. 144; 
New Orleans v. St. Rowes, 9 La. An. 573; Edwards v. James, 13 Texas, 52; 
State v. Click, 2 Ala. 26; Savage v. Walshe, 26 Ala. 620; Webster v. French, 
12 111. 302; McKim v. Weller, 11 Cal. 47; State v. Co. Commissioners of Bal- 
timore, 29 Md. 516 ; Fry v. Booth, 19 Ohio, n. s. 25. The list might easily be 
largely increased. 

2 See upon this subject the remarks of Mr. Sedgwick in his work on Statutory 
and Constitutional Law, p. 375, and those of Hubbard, J., in Briggs v. Georgia, 
15 Vt 72. Also see Dryfuss v. Budges, 45 Miss. 247. 

[86] 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. * 79 

mere rules of order in unessential matters, it is lowering the proper 
dignity of such an instrument, and usurping the proper province of 
ordinary legislation. We are not therefore to expect to find in a 
constitution provisions which the people, in adopting it, have not 
regarded as of high importance, and worthy to- be embraced in 
an instrument which, for a time at least, is to control alike the 
government and the governed, and to form a standard by which is 
to be measured the power which can be exercised as well by the 
delegate as by the sovereign people themselves. If directions are 
given respecting the times or modes of proceeding in which a 
power should be exercised, there is at least a strong presumption 
that the people designed it should be exercised in that time and 
mode only ; and we impute to the people a want of due appreciation 
of the purpose and proper province of such an instrument, when 
we infer that such directions are given to any other end. Especially 
when, as has been already said, it is but fair to presume that the 
people in their constitution have expressed themselves in careful 
and measured terms, corresponding with the immense importance 
of the powers delegated, and with a view to leave as little as 
possible to implication. 1 

There are some cases, however, where the doctrine of directory 
statutes has been applied to constitutional provisions ; but they are 
at variance with the weight of authority upon the precise points 
considered, and we do not think, therefore, we should be warranted 
in saying that the judicial decisions as they now stand sanction 
the application. In delivering the opinion of the New York Court 
of Appeals in one case, Mr. Justice Willard had occasion to con- 
sider the constitutional provision, that on the final passage of a 
bill the question shall be taken by ayes and noes, which shall be 
duly entered upon the journals; and he expressed the opinion that 
it was only directory to the legislature. 2 The remark was obiter 
dictum, as the court had already decided that the provision had 
been fully complied with ; and those familiar with the reasons 
which have induced the insertion of this clause in our 
* constitutions will not readily concede that its sole design [* 80] 
was to establish a mere rule of order for legislative pro- 

1 Wolcott o. Wigton, 7 Ind. 49; per Bronson, J., in People v. Purdy, 2 Hill, 
36; Greencastle Township v. Black, 5 Ind. 566; Opinions of Judges, 6 Shep. 
458. See People v. Lawrence, 36 Barb. 177 ; State v. Johnson, 26 Ark. 281. 

2 People v. Supervisors of Chenango, 8 N. Y. 328. 

[87] 



* 80 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

ceedings, which might be followed or not at discretion. Mr. Chief 
Justice Thurman, of Ohio, in a case not calling for a discussion of 
the subject, has considered a statute whose validity was assailed 
on the ground that it was not passed in the mode prescribed by the 
constitution. " By the term mode" he says, " I do not mean to 
include the authority in which the law-making power resides, or the 
number of votes a bill must receive to become a law. That the 
power to make laws is vested in the Assembly alone, and that no 
act has any force that was not passed by the number of votes 
required by the constitution, are nearly, or quite, self-evident 
propositions. These essentials relate to the authority by which, 
rather than the mode in which, laws are to be made. Now 
to secure the careful exercise of this power, and for other good 
reasons, the constitution prescribes or recognizes certain things to 
be done in the enactment of laws, which things form a course 
or mode of legislative procedure. Thus we find, inter alia, the 
provision that every bill shall be fully and distinctly read on three 
different days, unless, in case of urgency, three-fourths of the house 
in which it shall be pending shall dispense with this rule. This is 
an important provision without doubt, but, nevertheless, there is 
much reason for saying that it is merely directory in its character, 
and that its observance by the Assembly is secured by their sense 
of duty and official oaths, and not by any supervisory power of the 
courts. Any other construction, we incline to think, would lead 
to very absurd and alarming consequences. If it is in the power 
of every court (and if one has the power, every one has it) to 
inquire whether a bill that passed the Assembly was ' fully ' and 
' distinctly ' read three times in each house, and to hold it in- 
valid if, upon any reading, a word was accidentally omitted, or 
the reading was indistinct, it would obviously be impossible to 
know what is the statute law of the State. Now the requisition that 
bills shall be fully and distinctly read is just as imperative as that 
requiring them to be read three times ; and as both relate to the 
mode of procedure merely, it would be difficult to find any suf- 
ficient reason why a violation of one of them would be less fatal 
to an act than a violation of the other." 1 

A requirement that a law shall be read distinctly, whether 

[* 81] * mandatory or directory, is, from the very nature of the 

case, addressed to the judgment of the legislative body, 

1 Miller v. State, 3 Ohio, n. s. 483. 
[88] 



CH. IV.] CONSTRUQTION OF STATE CONSTITUTIONS. * 81 

whose decision as to what reading is sufficiently distinct to be a 
compliance cannot be subject to review. But in the absence of 
authority to the contrary, we should not have supposed that the 
requirement of three successive readings on different days stood 
upon the same footing. 1 To this extent a definite and certain rule 
is capable of being, and has been, laid down, which can be literally 
obeyed ; and the legislative body cannot suppose or adjudge it to 
have been done if the fact is otherwise. The requirement has an 
important purpose, in making legislators proceed in their action 
with caution and deliberation ; and there cannot often be difficulty 
in ascertaining from the legislative records themselves if the con- 
stitution has been violated in this particular. There is, therefore, 
no inherent difficulty in the question being reached and passed 
upon by the courts in the ordinary mode, if it is decided that the 
constitution intends legislation shall be reached through the three 
readings, and not otherwise. 

The opinion above quoted was recognized as law by the Supreme 
Court of Ohio in a case soon after decided. In that case the court 
proceed to say : " The . . . provision . . . that no bill shall con- 
tain more than one subject, which shall be clearly expressed in its 
title, is also made a permanent rule in the introduction and passage 
of bills through the houses. The subject of the bill is required to 
be clearly expressed in the title for the purpose of advising mem- 
bers of its subject, when voting in cases in which the reading has 
been dispensed with by a two-thirds vote. The provision that a 
bill shall contain but one subject was to prevent combinations 
by which various and distinct matters of legislation should gain a 
support which they could not if presented separately. As a rule 
of proceeding in the General Assembly, it is manifestly an impor- 
tant one. But if it was intended to effect any practical object for 
the benefit of the people in the examination, construction, or oper- 
ation of acts passed and published, we are unable to perceive it. 
The title of an act may indicate to the reader its subject, and 
under the rule each act would contain one subject. To suppose 
that for such a purpose the Constitutional Convention adopted the 
rule under consideration, would impute to them a most minute 
provision for a very imperfect heading of the chapters of 
laws and their subdivision. This * provision . being in- [* 82] 

1 See People v. Campbell, 3 Gilm. 466 ; McCulloch v. State, 11 Ind. 432. 

[89] 



* 82 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

tended to operate upon bills in their progress through the Gen- 
eral Assembly, it must be held to be directory only. It relates to 
bills, and not to acts. It would be most mischievous in practice 
to make the validity of every law depend upon the judgment of 
every judicial tribunal of the State, as to whether an act or a bill 
contained more than one subject, or whether this one subject was 
clearly expressed in the title of the act or bill. Such a question 
would be decided according to the mental precision and mental dis- 
cipline of each justice of the peace and judge. No practical benefit 
could arise from such inquiries. We are therefore of opinion that 
in general the only safeguard against the violation of these rules 
of the houses is their regard for, and their oath to support, the 
constitution of the State. We say, in general, the only safeguard ; 
for whether a manifestly gross and fraudulent violation of these 
rules might authorize the court to pronounce a law unconstitu- 
tional, it is unnecessary to determine. It is to be presumed no 
such case will ever occur." 1 

If the prevailing doctrine of the courts were in accord with this 
decision, it might become important to consider whether the object 
of the clause in question, as here disclosed, was not of such a 
character as to make the provision mandatory even in a statute. 
But we shall not enter upon that subject here, as elsewhere we 
shall have occasion to refer to decisions made by the highest 
judicial tribunals in nearly all of the States, recognizing similar 
provisions as mandatory, and to be enforced by the courts. And 
we concur fully in what was said by Mr. Justice Emmot, in 
speaking of this very provision, that "it will be found upon full 
consideration to be difficult to treat any constitutional provision as 
merely directory and not imperative." 2 And with what is said by 
Mr. Justice Lumpkin, as to the duty of the courts: " It has been 
suggested that the prohibition in the seventeenth section of the first 
article of the constitution, ' Nor shall any law or ordinance pass 
containing any matter different from what is expressed in the title 

1 Pirn v. Nicholson, 6 Ohio, N. s. 179. See also the case of Washington v. 
Murray, 4 Cal. 388, for similar views. In Hill v. Boyland, 40 Miss. 618, a pro- 
vision requiring of all officers an oath to support the constitution, was held not 
to invalidate the acts of officials who had neglected to take such an oath. And 
in McPherson v. Leonard, 29 Md. 377, the provision that the style of all laws 
shall be, "Be it enacted by the General Assembly of Maryland," was held 
directory. 

2 People v. Lawrence, 36 Barb. 186. 

[90] 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. * 82 

thereof,' is directory only to the legislative and executive or law- 
making departments of the government. But we do not so 
understand it. On the contrary, we consider it as much a 
* matter of judicial cognizance as any other provision in [* 83] 
that instrument. If the courts would refuse to execute a 
law suspending the writ of habeas corpus when the public safety 
did not require it, a law violatory of the freedom of the press, or 
trial by jury, neither would they enforce a statute which contained 
matter different from what was expressed in the title thereof." x 

We have thus indicated some of the rules which we think are 
to be observed in the construction of constitutions. It will be 
perceived that we have not thought it important to quote and to 
dwell upon those arbitrary rules to which so much attention is 
sometimes given, and which savor rather of the closet than of 
practical life. Our observation would lead us to the conclusion 
that they are more often resorted to as aids in ingenious attempts 
to make the constitution seem to say what it does not, than with 
a view to make that instrument express its real intent. All exter- 
nal aids, and especially all arbitrary rules, applied to instruments 
of this popular character, are of very uncertain value ; and we do 
not regard it as out of place to repeat here what we have had 
occasion already to say in the course of this chapter, that they 
are to be made use of with hesitation, and only with much 
circumspection. 2 

1 Protho v. Orr, 12 Geo. 36. See also Opinions of Judges, 6 Shep. 458; 
Indiana Central Railroad Co. v. Potts, 7 Ind. 683 ; People v. Starne, 35 111. 121 ; 
State v. Miller, 45 Mo. 495 ; Weaver v. 'Lapsley, 43 Ala. 224. 

2 See People v. Cowles, 13 N. Y. 360, per Johnson, J. ; Temple v. Mead, 4 
Vt. 540, per Williams, J.; People v. Fancher, 50 N. Y. 291. "In construing so 
important an instrument as a constitution, especially those parts which affect the 
vital principle of republican government, the elective franchise, or the manner of 
exercising it, we are not, on the one hand, to indulge ingenious speculations which 
mav lead us wide from the true sense and spirit of the instrument, nor, on the 
other, to apply to it such narrow and constrained views as may exclude the real 
object and intent of those who framed it. We are to suppose that the authors of 
such an instrument had a thorough knowledge of the force and extent of the 
words they employ ; that they had a beneficial end and purpose in view ; and 
that, more especially in any apparent restriction upon the mode of exercising the 
right of suffrage, there was some existing or anticipated evil which it was their 
purpose to avoid. If an enlarged sense of any particular form of expression 
should be necessary to accomplish so great an object as a convenient exercise of 
the fundamental privilege or right, — that of election, — such sense must be at- 

[91] 



* 83 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

tributed. We are to suppose that those who were delegated to the great business 
of distributing the powers which emanated from the sovereignty of the people, 
and to the establishment of the rules for the perpetual security of the rights of 
person and property, had the wisdom to adapt their language to future as well as 
existing emergencies, so that words competent to the then existing state of the 
community, and at the same time capable of being expanded to embrace more 
extensive relations, should not be restrained to their more obvious and immediate 
sense, if, consistently with the general object of the authors and the true prin- 
ciples of the compact, they can be extended to other relations and circumstances 
which an improved state of society may produce. Qui hceret in litera hceret in 
cortice is a familiar maxim of the law. The letter killeth, but the spirit maketh 
alive, is the more forcible expression of Scripture." Parker, Ch. J., in Henshaw 
v. Foster, 9 Pick. 316. 

[92] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 85 



^CHAPTER V. [* 85] 

OF THE POWERS WHICH THE LEGISLATIVE DEPARTMENT MAY EXERCISE. 

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

" The power and jurisdiction of Parliament, says Sir Edward 
Coke, 1 is so transcendent and absolute, that it cannot be con- 
fined, either for persons or causes, within any bounds. And of 
this high court it may truly be said : ' Si antiquitatem spectes, 
est vetustissima ; si dignitatem est honoratissima ; si jurisdic- 
tionem, est capacissima.' It hath sovereign and uncontrolled 

1 4 Inst. 86. 

[93] 



* 85 CONSTITUTIONAL LIMITATIONS. [CH. V. 

authority in the making, confirming, enlarging, restraining, abro- 
gating, repealing, reviving, and expounding of laws, concerning 

matters of all possible denominations, ecclesiastical or 
[* 86 ] temporal, * civil, military, maritime, or criminal ; this 

being the place where that absolute despotic power, which 
must in all governments reside somewhere, is intrusted by the 
constitution of these kingdoms. All mischiefs and grievances, 
operations and remedies, that transcend the ordinary course of 
the laws, are within the reach of this extraordinary tribunal. It 
can regulate or new-model the succession to the Crown, as was 
done in the reign of Henry VIII. and William III. It can alter 
the established religion of the land ; as was done in a variety of 
instances, in the reign of King Henry VIII. and his three children. 
It can change and create afresh even the constitution of the king- 
dom and of Parliaments themselves, as was done by the Act of 
Union, and the several statutes for triennial and septennial elec- 
tions. It can, in short, do every thing that is not naturally impos- 
sible ; and therefore some have not scrupled to call its power, by a 
figure rather too bold, the omnipotence of Parliament. True it is, 
that what the Parliament doth, no authority upon earth can undo ; 
so that it is a matter most essential to the liberties of this king- 
dom that such members be delegated to this important trust as 
are most eminent for their probity, their fortitude, and their 
knowledge ; for it was a known apothegm of the great Lord 
Treasurer Burleigh, ' that England could never be ruined but by 
a Parliament ; ' and as Sir Matthew Hale observes : ' This being 
the highest and greatest court, over which none other can have 
jurisdiction in the kingdom, if by any means a misgovernment 
should fall upon it, the subjects of this kingdom are left without 
all manner of remedy.' " 1 

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

1 1 Bl. Com. 160. 
[94] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 86 

State legislatures resemble the Parliament in the powers they 
exercise, and how far we may extend the comparison without 
losing sight of the fundamental ideas and principles of the Amer- 
ican system. 

* The first and most notable difference is that to which [* 87 ] 
we have already alluded, and which springs from the dif- 
ferent theory on which the British Constitution rests. While 
Parliament is recognized as rightfully exercising the sovereign 
authority of the country, it is evident that the resemblance between 
it and American legislatures in regard to their ultimate powers 
cannot be carried very far. The American legislatures only exer- 
cise a, certain portion of the sovereign power. The sovereignty is 
in the people ; and the legislatures which they have created are 
only to discharge a trust of which they have been made a depos- 
itory, but which has been placed in their hands with well-defined 
restrictions. 

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

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

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

2. But the apportionment to this department of legislative 
power does not sanction the exercise' of executive or judicial func- 

[95] 



* 87 CONSTITUTIONAL LIMITATIONS. [CH. V. 

tions, except in those cases, warranted by parliamentary usage, 
where they are incidental, necessary, or proper to the exercise of 
legislative authority, or where the constitution itself, in specified 
cases, may expressly permit it. Executive power is so intimately 
connected with legislative, that it is not easy to draw a line of 

separation ; but the grant of the judicial power to the 
[* 88 ] department * created for the purpose of exercising it must 

be regarded as an exclusive grant, covering the whole 
power, subject only to the limitations which the constitutions 
impose, and to the incidental exceptions before referred to. 
While, therefore, the American legislatures may exercise the 
legislative powers which the Parliament of Great Britain wields, 
except as restrictions are imposed, they are at the same time ex- 
cluded from other functions which may be, and sometimes habit- 
ually are, exercised by the Parliament. 

"The people in framing the constitution," says Denio, Ch. J., 
" committed to the legislature the whole law-making power of 
the State, which they did not expressly or impliedly withhold. 
Plenary power in the legislature, for all purposes of civil govern- 
ment, is the rule. A prohibition to exercise a particular power is 
an exception. In inquiring, therefore, whether a given statute is 
constitutional, it is for those who question its validity to show that 
it is forbidden. I do not mean that the power must be expressly 
inhibited, for there are but few positive restraints upon the legis- 
lative power contained in the instrument. The first article lays 
down the ancient limitations which have always been considered 
essential in a constitutional government, whether monarchical or 
popular ; and there are scattered through the instrument a few 
other provisions in restraint of legislative authority. But the 
affirmative prescriptions and the general arrangements of the 
constitution are far more fruitful of restraints upon the legisla- 
ture. Every positive direction contains an implication against 
every thing contrary to it, or which would frustrate or disappoint 
the purpose of that provision. The frame of the government, the 
grant of legislative power itself, the organization of the executive 
authority, the erection of the principal courts of justice, create 
implied limitations upon the law-making authority as strong as 
though a negative was expressed in each instance ; but indepen- 
dently of these restraints, express or implied, every subject within 
[96] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 88 

the scope of civil government is liable to be dealt with by the legis- 
lature." i 

" It has never been questioned, so far as I know," says Redfield, 
Ch. J., " that the American legislatures have the same unlimited 
power in regard to legislation which resides in the British Parlia- 
ment, except where they are restrained by written consti- 
tutions. * That must be conceded, I think, to be a fun- [* 89] 
damental principle in the political organization of the 
American States. We cannot well comprehend how, upon prin- 
ciple, it should be otherwise. The people must, of course, possess 
all legislative power originally. They have committed this in the 
most general and unlimited manner to the several State legis- 
latures, saving only such restrictions as are imposed by the Con- 
stitution of the United States, or of the particular State in 
question." 2 

" I entertain no doubt," says Comstock, J., " that aside from 
the special limitations of the constitution, the legislature cannot 
exercise powers which are in their nature essentially judicial or 
executive. These are, by the constitution, distributed to other 
departments of the government. It is only the ' legislative power' 
which is vested in the senate and assembly. But where the con- 
stitution is silent, and there is no clear usurpation of the powers 
distributed to other departments, I think there would be great 
difficulty and great danger in attempting to define the limits of 
this power. Chief Justice Marshall said : ' How far the power of 
giving the law may involve every other power, in cases where the 
constitution is silent, never has been, and perhaps never can be, 
definitely stated.' 3 That very eminent judge felt the difficulty; 
but the danger was less apparent then than it is now, when theo- 
ries, alleged to be founded in natural reason or inalienable rights, 
but subversive of the just and necessary powers of government, 
attract the belief of considerable classes of men, and when too 
much reverence for government and law is certainly among the 

1 People v. Draper, 15 N. Y. 543. 

2 Thorpe v. Rutland & Burlington Railroad Co., 27 Vt. 142. See also Leg- 
gett v. Hunter, 19 N. Y. 445 ; Cochran v. Van Surlay, 20 Wend. 365 ; People 
v. Morrell, 21 Wend. 563 ; Sears v. Cottrell, 5 Mich. 251 ; Mason v. Wait, 4 
Scam. 134; People v. Supervisors of Orange, 27 Barb. 593; Taylor v. Porter, 
4 Hill, 144, per Bronson, J. 

3 Fletcher v. Peck, 6 Cranch, 136. 

7 E 97 ] 



* 89 CONSTITUTIONAL LIMITATIONS. [CH. V. 

least of the perils to which our institutions are exposed. I am 
reluctant to enter upon this field of inquiry, satisfied, as I am, 
that no rule can be laid down in terms which may not contain the 
germ of great mischief to society, by giving to private opinion and 
speculation a license to oppose themselves to the just and legiti- 
mate powers of government." 1 

Numerous other opinions might be cited to the same 
[* 90] effect with * those from which we have here quoted ; but 
as we shall have occasion to refer to them elsewhere, in 
considering the circumstances under which a statute may be 
declared unconstitutional, we shall refrain from further references 
in this place. Nor shall we enter upon a discussion of the ques- 
tion suggested by Chief Justice Marshall as above quoted ; 2 since, 
however interesting it may be as an abstract question, it is made 
practically unimportant by the careful separation of duties between 
the several departments of the government which has been made 
by each of the State constitutions. Had no such separation been 
made, the disposal of executive and judicial duties must have 
devolved upon the department vested with the general authority 
to make laws ; 3 but assuming them to be apportioned already, we 
are only at liberty to liken the power of the State legislature to 
that of the Parliament, when it confines its action to an exercise 
of legislative functions ; and such authority as is in its nature 

1 Wynehamer v. People, 13 N. Y. 391. 

2 The power to distribute the judicial power, except so far as that has been 
done by the constitution, rests with the legislature, Commonwealth v. Hippie, 69 
Perm. St. 9 ; but when the constitution has conferred it upon certain specified 
courts, this must be understood to embrace the whole judicial power, and the 
legislature cannot vest any portion of it elsewhere. State v. Maynard, 14 111. 
420 ; Gibson v. Emerson, 2 Eng. 173 ; Chandler v. Nash, 5 Mich. 409 ; Succes- 
sion of Tanner, 22 La. Ann. 91 ; Gough v. Dorsey, 27 Wis. 130. But a general 
provision in the constitution for the distribution of the judicial. .power, not refer- 
ring to courts-martial, would not be held to forbid such courts by implication. 
People v. Daniel, 50 N. Y. 274. Nor would it be held to embrace administra- 
tive functions of a quasi judicial nature, such as the assessment of property for 
taxation. State v. Commissioners of Ormsby County, 7 Nev. 392, and cases cited. 
See Auditor of State v. Atchison,. &c, 11. R. Co., 6 Kan. 500; s. c. 7 Am. 
Rep. 575. 

3 Calder v. Bull, 2 Root, 350, and 3 Dall. 38G ; Ross v. Whitman, G Cal. 3G1 ; 
Smith v. Judge, 17 Cal. 547 ; per Patterson, J., in Cooper v. Telfair, 4 Dall. 19 ; 
Martin v. Hunter's Lessee, 1 Wheat. 304. 

[98] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 90 

either executive or judicial is beyond its constitutional powers, 
with the few exceptions to which we have already referred. 

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

The legislative power is the authority, under the constitution, to 
make laws, and to alter and repeal them. Laws, in the sense in 
which the word is here employed, are rules of civil conduct, or 
statutes, which the legislative will has prescribed. " The laws of 
a State," observes Mr. Justice Story, " are more usually under- 
stood to mean the rules and enactments promulgated by the legis- 
lative authority thereof, or long-established local customs 
having * the force of laws." * " The difference between [* 91] 
the departments undoubtedly is, that the legislature 
makes, the executive executes, and the judiciary construes, the 
law." 2 And it is said that that which distinguishes a judicial 
from a legislative act is, that the one is a determination of what 
the existing law is in relation to some existing thing already done 
or happened, while the other is a predetermination of what the law 
shall be for the regulation of all future cases falling under its pro- 
visions. 3 And in another case it is said : " The legislative power 
extends only to the making of laws, and in its exercise it is limited 
and restrained by the paramount authority of the federal and 
State constitutions. It cannot directly reach the property or 
vested rights of the citizen by providing for their forfeiture or 
transfer to another, without trial and judgment in the courts : for 
to do so would be the exercise of a power which belongs to another 
branch of the government, and is forbidden to the legislative." 4 
" That is not legislation which adjudicates in a particular case, 
prescribes the rule contrary to the general law, and orders it to be 

1 Swift v. Tyson, 16 Pet. 18. 

2 Per Marshall, Ch. J., in Way man v. Southard, 10 Wheat. 46 ; per Gibson, 
Ch. J., in Greenough v. Greenough, 11 Penn. St. 494. See State v. Gleason, 
12 Fla. 190. 

3 Bates v. Kimball, 2 Chip. 77. 

4 Newland v. Marsh, 19 111. 382. 

[99] 



* 91 CONSTITUTIONAL LIMITATIONS. [CH. V. 

enforced. Such power assimilates itself more closely to despotic 
rule than any other attribute of government." 1 

On the other hand, to adjudicate, upon, and protect, the rights 
and interests of individual citizens, and to that end to construe 
and apply the laws, is the peculiar province of the judicial depart- 
ment. 2 " No particular definition of judicial power," says Wood- 
bury, J., "is given in the constitution [of New Hampshire], and, 
considering the general nature of the instrument, none was to be 
expected. Critical statements of the meanings in which all im- 
portant words were employed would have swollen into volumes ; 
and when those words possessed a customary signification, a defi- 
nition of them would have been useless. But ' powers 
[* 92] judicial,' * 'judiciary powers,' and 'judicatures' are all 
phrases used in the constitution ; and though not particu- 
larly defined, are still so used to designate with clearness that 
department of government which it was intended should inter- 
pret and administer the laws. On general principles, therefore, 
those inquiries, deliberations, orders, and decrees, which are 
peculiar to such a department, must in their nature be judicial 
acts. Nor can they be both judicial and legislative ; because a 
marked difference exists between the employment of judicial and 
legislative tribunals. The former decide upon the legality of 
claims and conduct, and the latter make rules upon which, in con- 
nection with the constitution, those decisions should be founded. 
It is the province of judges to determine what is the law upon 
existing cases. In fine, the law is applied by the one, and made 
by the other. To do the first, therefore, — to compare the claims 
of parties with the law of the land before established, — is in its 
nature a judicial act. But to do the last — to pass new rules for 
the regulation of new controversies — is in its nature a legislative 

1 Ervine's Appeal, 16 Penn. St. 266. See also Greenough v. Greenough, 11 
Penn. St. 494; Decbastellux v. Fairchild, 15 Penn. St. 18; Trustees, &c, v. 
Bailey, 10 Fla. 238. 

2 Cincinnati, &c., Railroad Co. v. Commissioners of Clinton Co., 1 Ohio, 
N. s. 81. See also King v. Dedham Bank, 15 Mass. 454; Gordon v. Ingraham, 
1 Grant's Cases, 152 ; People v. Supervisors of New York, 16 N. Y. 432 ; Beebe 
v. State, 6 Ind. 515; Greenough v. Greenough, 11 Penn. St. 494; Taylor v. 
Place, 4 R. I. 324. In State v. Adams, 44 Mo. 570, a legislative act which 
declared certain college officers to have vacated their offices by failure to take an 
oath prescribed by a previous act, and which proceeded to ap'point successors, 
was held void as an exercise of judicial power. 

[100] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 92 

act; and if these rules interfere with the past, or the present, and 
do not look wholly to the future, they violate the definition of a 
law as ' a rule of civil conduct ; ' * because no rule of conduct can 
with consistency operate upon what occurred before the rule itself 
was promulgated. 

" It is the province of judicial power, also, to decide private 
disputes between or concerning persons ; but of legislative power 
to regulate public concerns, and to make laws for the benefit and 
welfare of the State. Nor does the passage of private statutes 
conflict with these principles ; because such statutes, when lawful, 
are enacted on petition, or by the consent of all concerned; or 
else they forbear to interfere with past transactions and vested 
rights." 2 

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

* Declaratory Statutes. [* 93] 

Legislation is either introductory of new rules, of it is declar- 
atory of existing rules. " A declaratory statute is one which 
is passed in order to put an end to a doubt as to what is the com- 
mon law, or the meaning of another statute, and which declares 
what it is and ever has been." 3 Such a statute, therefore, is always 
in a certain sense retrospective ; because it assumes to determine 
what the law" was before it was passed ; and as a declaratory statute 
is important only in those cases where doubts have already arisen, 
the statute, when passed, may be found to declare the law to be 
different from what it has already been adjudged to be by the 
courts. Thus Mr. Fox's Libel Act declared that, by the law of 
England, juries were judges of the law in prosecutions for libel ; it 

1 1 Bl. Coram. 44. 

2 Merrill v. Sherburne, 1 N. H. 204. See Jones v. Perry, 10 Yerg. 69 ; Tay- 
lor v. Porter, 4 Hill, 144 ; Ogden v. Blackledge, 2 Cranch, 272 ; Dash v. Van 
Kleek, 7 Johns. 498 ; Wilkinson v. Leland, 2 Pet. 657 ; Leland v. Wilkinson, 
10 Pet. 297. 

3 Bouv. Law Diet. " Statute." 

[101] 



* 93 CONSTITUTIONAL LIMITATIONS. [CH. V. 

did not purport to introduce a new rule, but to declare a rule 
already and always in force. Yet previous to the passage of this 
act the courts had repeatedly held that the jury in these cases 
were only to pass upon the fact of publication and the truth of 
the innuendoes ; and whether the publication was libellous or not 
was a question of law which addressed itself exclusively to the 
court. It would appear, therefore, that the legislature declared 
the law to be what the courts had declared it was not. So in the 
State of New York, after the courts had held that insurance com- 
panies were taxable to a certain extent under an existing statute, 
the legislature passed another act, declaring that such companies 
were only taxable at a certain other rate ; and it was thereby 
declared that such was the intention and true construction of the 
original statute. 1 In these cases it will be perceived that the courts, 
in the due exercise of their authority as interpreters of the laws, 
have declared what the rule established by the common law or by 
statute is, and that the legislature has then interposed, put its own 
construction upon the existing law, and in effect declared the 
judicial interpretation to be unfounded and unwarrantable. The 
courts in these cases have clearly kept within the proper limits of 
their jurisdiction, and if they have erred, the error lias been one 
of judgment only, and has not extended to usurpation of power. 
Was the legislature also within the limits of its authority when it 

passed the declaratory statute ? 
[* 94] * The decision of this question must depend upon the 
practical application which is sought to be made of the 
declaratory statute, and whether it is designed to have practically 
a retrospective operation, or only to establish a construction of the 
doubtful law for the determination of cases that may arise in the 
future. It is always competent to change an existing law by a 
declaratory statute ; and where it is only to operate upon future 
cases, it is no objection to its validity that it assumes the law to 
have been in the past what it is now declared that it shall be in the 
future. But the legislative action cannot be made to retroact upon 
past controversies, and to reverse decisions which the courts, in 
the exercise of their undoubted authority, have made ; for this 
would not only be the exercise of judicial power, but it would be 
its exercise in the most objectionable and offensive form, since 

1 People v. Supervisors of New York, 16 N. Y. 424. 

[102] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 94 

the legislature would in effect sit as a court of review to which 
parties might appeal when dissatisfied with the rulings of the 
courts. 1 

As the legislature cannot set aside the construction of the law 
already applied by the courts to actual cases, neither can it compel 

1 In several different eases the courts of Pennsylvania had decided that a 
testator's mark to his name, at the foot of a testamentary paper, but without 
proof that the name was written by his express direction, was not the signature 
required by the statute, and the legislature, to use the language of Chief Justice 
Gibson, " declared, in order to overrule it, that every last will and testament 
heretofore made, or hereafter to be made, except such as may have been fully 
adjudicated prior to the passage of this act, to which the testator's name is sub- 
scribed by his direction, or to which the testator has made his mark or cross, 
shall be deemed and taken to be valid. How this mandate to the courts to estab- 
lish a particular interpretation of a particular statute, can be taken for any thing 
else than an exercise of judicial power in settling a question of interpretation, I 
know not. The judiciary had certainly recognized a legislative interpretation of 
a statute before it had itself acted, and consequently before a purchaser had been 
misled by its judgment ; but he might have paid for a title on the unmistakable 
meaning of plain words ; and for the legislature subsequently to distort or per- 
vert it, and to enact that white meant black, or that black meant white, would 
in the same degree be an exercise of arbitrary and unconstitutional power." 
Greenough v. Greenough, 11 Penn. St. 491. The act in this case was held void 
so far as its operation was retrospective, but valid as to future cases. And see 
Reiser v. Tell Association, 39 Penn. St. 137. The constitution of Georgia 
entitled the head of a family to enter a homestead, and the courts decided that a 
single person, having no others dependent upon him, could not be regarded the 
head of a family, though keeping house with servants. Afterwards, the legislature 
passed an act, declaring that any single person living habitually as housekeeper 
to himself should be regarded as the head of a family. Held void as an exercise 
of judicial power. Calhoun v. McLendon, 42 Geo. 405. The fact that the 
courts had previously given a construction to the law may show more clearly 
a purpose in the legislature to exercise judicial authority, but it would not be 
essential to that end. As is well said in Haley v. Philadelphia, 68 Penn. St. 45 : 
"It would be monstrous to maintain that when the words and intention of an act 
were so plain that no court had ever been appealed to for the purpose of declar- 
ing their meaning, it was therefore in the power of the legislature, by a retro- 
spective law, to put a construction upon them contrary to the obvious letter and 
spirit. Reiser v. William Tell Fund Association, 39 Penn. St. 137, is an author- 
ity in point against such a doctrine. An expository act of assembly is destitute. 
of retroactive force, because it is an act of judicial power, and is in contraven- 
tion of the ninth section of the ninth article of the constitution, which declares 
that no man can be deprived of his property unless ' by the judgment of his peers 
or the law of the land.' " See 8 Am. Rep. 155, 156. And on the force and 
effect of declaratory laws in general, see Salters v. Tobias, 3 Paige, 388 ; Post- 
master-General v. Early, 12 Wheat. 148. 

[103] 



* 94 CONSTITUTIONAL LIMITATIONS. [CH. V. 

the courts for the future to adopt a particular construction of a law 
which the legislature permits to remain in force. " To declare 
what the law is, or has been, is a judicial power ; to declare what 
the law shall be, is legislative. One of the fundamental principles 

of all our governments is, that the legislative power 
[* 95 ] * shall be separate from the judicial." 1 If the legislature 

would prescribe a different rule for the future from that 
which the courts enforce, it must be done by statute, and cannot be 
done by a mandate to the courts, which leaves the law unchanged, 
but seeks to compel the courts to construe and apply it, not ac- 
cording to the judicial, but according to the legislative judgment. 2 
But in any case the substance of the legislative action should 
be regarded rather than the form; and if it appears to be the 
intention to establish by declaratory statute a rule of conduct for 
the future, the courts should accept and act upon it, without too 
nicely inquiring whether the mode by which the new rule is estab- 
lished is or is not the best, most decorous and suitable that could 
have been adopted. 

If the legislature cannot thus indirectly control the action of the 
courts, by requiring of them a construction of the law according 
to its own views, it is very plaiu it cannot do so directly, by set- 
ting aside their judgments, compelling them to grant new trials, 
ordering the discharge of offenders, 3 or directing what particu- 
lar steps shall be taken in the progress of a judicial inquiry. 4 

1 Dash v. Van Kleek, 7 Johns. 498, per Thompson, J. ; Ogden v. Blackledge, 
2 Craneh, 272; Lambertson v. Hogan, 2 Penn. St. 25. 

2 Governor v. Porter, 5 Humph. 165; People v. Supervisors, &c, 16 N. Y. 
424; Reiser v. Tell Association, 39 Penn. St. 137 ; O'Conner v. Warner, 4 W. 
& S. 227 ; Lambertson v. Hogan, 2 Penn. St. 25. 

3 In State v. Fleming, 7 Humph. 152, a legislative resolve that " no fine, for- 
feiture, or imprisonment, should be imposed or recovered under the act of 1837 
[then in force], and that all causes pending in any of the courts for such offence 
should be dismissed," was held void as an invasion of judicial authority. The 
legislature cannot declare a forfeiture of a right to act as curators of a college. 
State v. Adams, 44 Mo. 570. But to take away by statute a statutory right of 
appeal is not an exercise of judicial authority. Ex parte McCardle, 7 Wall. 
506. And it has been held that a statute allowing an appeal in a particular case' 
was valid. Prout v. Berry, 2 Gill, 147; State v. Northern Central R. R. Co., 
18 Md. 193. But see cases cited in next note. 

* Opinions of Judges on the Dorr Case, 3 R. I. 299. In the case of Picquet, 
Appellant, 5 Pick. 64, the Judge of Probate had ordered letters of administration 
to issue to an applicant therefor, on his giving bond in the penal sum of $50,000, 
[104] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 96 

* And as a court must act as an organized body of judges, [* 96 ] 
and, where differences of opinion arise, they can only 
decide by majorities, it has been held that it would not be in the 
power of the legislature to provide that, in certain contingencies, 
the opinion of the minority of a court, vested, with power by the 
constitution, should prevail, so that the decision of the court 
in such cases should be rendered against the judgment of its 
members. 1 

■with sureties within the Commonwealth, for the faithful performance of his duties. 
He was unable to give the bond, and applied to the legislature for relief. There- 
upon a resolve was passed "empowering" the Judge of Probate to grant the 
letters of administration, provided the petitioner should give bond with his 
brother, a resident of Paris, France, as surety, and " that such bond should be 
in lieu of any and all bond or bonds by any law or statute in this Commonwealth 
now in force required," &c. The Judge of Probate refused to grant the letters 
on the terms specified in this resolve, and the Supreme Court, while holding that 
it was not compulsory upon him, also declared their opinion that, if it were so, 
it would be inoperative and void. In Bradford v. Brooks, 2 Aik. 284, it was de- 
cided that the legislature had no power to revive a commission for proving claims 
against an estate after it had once expired. See also Bagg's Appeal, 43 Penn. 
St. 512. In Hill v. Sunderland, 3 Vt. 507 ; and Burch v. Newberry, 10 N. Y. 
374, it was held that the legislature had no power to grant to parties a right to 
appeal after it was gone under the general law. Besides the authorities referred 
to, to show that the legislature cannot grant a new trial, see Lewis v. Webb, 
3 Greenl. 326; Durham v. Lewiston, 4 Greenl. 140; Bates v. Kimball, 2 Chip. 
77 ; Staniford v. Barry, 1 Aik. 314 ; Merrill v. Sherburne, 1 N. H. 199 ; Dechas- 
tellux v. Fairchild, 15 Penn. St. 18; Taylor v. Place, 4 R. I. 324; Young v. 
State Bank, 4 Ind. 301; Lanier v. Gallatas, 13 La. An. 175; Miller v. State, 8 
Gill, 145 ; Beebe v. State, 6 Ind. 515 ; Atkinson v. Dunlap, 50 Me. Ill ; Weaver 
v. Lapsley, 43 Ala. 224 ; Saunders v. Cabaniss, ib. 173. In Burt v. Williams, 
24 Ark. 91, it was held that the granting of continuances of pending cases was 
the exercise of judicial authority, and a legislative act assuming to do this was 
void. And where, by the general law, the courts have no authority to grant a 
divorce for a given cause, the legislature cannot confer the authority in a particular 
case. Simmonds v. Simmonds, 103 Mass. 572; s. c. 4 Am. Rep. 576. And 
see post, 110, note. 

1 In Clapp v. Ely, 3 Dutch. 622, it was held that a statute which provided that 
no judgment of the Supreme Court should be reversed by the Court of Errors 
and Appeals, unless a majority of those members of the court who were com- 
petent to sit on the hearing and decision should concur in the reversal, was 
unconstitutional. Its effect would be, if the court were not full, to make the 
opinion of the minority in favor of affirmance control that of the majority in 
favor of reversal, unless the latter were a majority of the whole court. Such a 
provision in the constitution might be proper and unexceptionable ; but if the 
constitution has created a Court of Appeals, without any restriction of this char- 

[105] 



* 96 CONSTITUTIONAL LIMITATIONS. [CH. V. 

Nor is it in the power of the legislature to bind individuals by a 
recital of facts in a statute, to be used as evidence against the 
parties interested. A recital of facts in the preamble of a statute 
may perhaps be evidence, where it relates to matters of a public 
nature, as that riots or disorders exist in a certain part of the 
country ; 1 but where the facts concern the rights of individuals, 
the legislature cannot adjudicate upon them. As private statutes 
are generally obtained on the application of some party interested, 
and are put in form to suit his wishes, perhaps their exclusion 
from being made evidence against any other party would result 
from other general principles ; but it is clear that the recital could 
have no force, except as a judicial finding of facts ; and that such 

finding is not within the legislative province. 2 
[* 97] * We come now to a class of cases in regard to which 
there has been serious contrariety of opinion ; springing 
from the fact, perhaps, that the purpose sought to be accomplished 
by the statutes is generally effected by judicial proceedings, so that 
if the statutes are not a direct invasion of judicial authority, they 
at least cover ground which the courts usually occupy under gen- 
eral laws which confer the jurisdiction upon them. We refer to 

Statutes conferring Power upon Guardians and other Trustees to 

sell Lands. 

Whenever it becomes necessary or proper to sell the estate of 
a decedent for the payment of debts, or of a lunatic or other 
incompetent person for the same purpose, or for future support, 
or of a minor to provide the means for his education and nurture, 
or for the more profitable investment of the proceeds, or of ten- 
ants in common to effectuate a partition between them, it will 
probably be found in every State that some court is vested with 
jurisdiction to make the necessary order, if the facts seem to 
render it important after a hearing of the parties in interest. 
The case is eminently one for judicial investigation. There are 
facts to be inquired into, in regard to which it is always possible 
that disputes may arise ; the party in interest is often incompetent 
to act on his own behalf, and his interest is carefully to be in- 

acter, the ruling of this case is that the legislature cannot impose it. The court 
was nearly equally divided, standing seven to six. 

1 Rex v. Sutton, 4 M. & S. 532. 

2 Elmendorf v. Carmichael, 3 Litt. 478 ; Parmelee v. Thompson, 7 Hill, 80. 

[106] 



CH. Y.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 97 

quired into and guarded ; and as the proceeding will usually be 
ex p arte, there is more than the ordinary opportunity for fraud 
upon the party interested, as well as upon the authority which 
grants permission. It is highly and peculiarly proper, therefore, 
that by general laws judicial inquiry should be provided for 
these cases, and that these laws should provide for notice to all 
proper parties, and an opportunity for the presentation of any 
facts which might bear upon the propriety of granting the appli- 
cations. 

But it will sometimes be found that the general laws provided 
for these cases are not applicable to some which arise ; or if appli- 
cable, that they do not always accomplish fully all that seems 
desirable ; and in these cases, and perhaps also in some others 
without similar excuse, it has not been unusual for legislative 
authority to intervene, and by special statute to grant the power 
which, under the general law, is granted by the courts. 
The * power to pass such statutes has often been disputed, [* 98 ] 
and it may be well to see upon what basis of authority as 
well as of reason it rests. 

If in fact judicial inquiry is essential in these cases, it would 
seem clear that such statutes must be ineffectual and void. But 
if judicial inquiry is not essential, and the legislature may confer 
the power of sale in such a case upon an ex parte presentation of 
evidence, or upon the representations of the parties without any 
proof whatever, then we must consider the general laws to be 
passed, not because the cases fall within the province of judicial 
action, but because the courts can more conveniently consider, 
and properly, safely, and inexpensively pass upon such cases, than 
the legislative body, where the power primarily rests. 1 

The rule upon this subject, as we deduce it from the authorities, 
seems to be this : If the party standing in position of trustee 
applies for permission to make the sale, for a purpose apparently 
for the interest of the cestui que trust, and there are no adverse 

1 There are constitutional provisions in Kentucky, Virginia, Missouri, Oregon, 
Nevada, Indiana, Maryland, New Jersey, Arkansas, Florida, Illinois, "Wiscon- 
sin, Texas, West Virginia, and Michigan, forbidding special laws licensing the 
sale of the lands of minors and other persons under legal disability. Perhaps 
the general provision in some other constitutions, forbidding special laws in cases 
■where a general law could be made applicable, might also be held to exclude such 
special authorization. 

[107] 



* 98 CONSTITUTIONAL LIMITATIONS. [CH. V. 

interests to be considered and adjudicated, the case is not one 
which requires judicial action, but it is optional with the legisla- 
ture to grant the relief by statute, or to refer the case to the 
courts for consideration, according as the one course or the other, 
on considerations of policy, may seem desirable. 

In the case of Rice v. Parkman, 1 it appeared that, certain minors 
having become entitled to real estate by descent from their mother, 
the legislature passed a special statute empowering their father 
as guardian for them, and, after giving bond to the judge of 
probate, to sell and convey the lands, and put the proceeds at 
interest on good security for the benefit of the minor owners. 
A sale was made accordingly ; but the children, after coming of 
age, brought suit against the party claiming under the sale, insist- 
ing that the special statute was void. There was in force at the 
time this special statute was passed a general statute, under which 
license might have been granted by the courts ; but it was held 

that this general law did not deprive the legislature of that 
[* 99 ] full * and complete control over such cases which it would 

have possessed had no such statute existed. " If," say 
the court, " the power by which the resolve authorizing the sale in 
this case was passed were of a judicial nature, it would be very 
clear that it could not have been exercised by the legislature with- 
out violating an express provision of the constitution. But it 
does not seem to us to be of this description of power ; for it was 
not a case of controversy between party and party, nor is there 
any decree or judgment affecting the title to property. The 
only object of the authority granted by the legislature was to trans- 
mute real into personal estate, for purposes beneficial to all who 
were interested therein. This is a power frequently exercised by 
the legislature of this State, since the adoption of the constitution, 
and by the legislature of the province and of the colony, while 
under the sovereignty of Great Britain, analogous to the power 
exercised by the British Parliament on similar subjects, time out 
of mind. Indeed, it seems absolutely necessary for the interest of 
those who, by the general rules of law, are incapacitated from dis- 
posing of their property, that a power should exist somewhere of 
converting lands into money. For otherwise many minors might 
suffer, although having property ; it not being in a condition to yield 

1 16 Mass. 326. 
[108] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 99 

an income. This power must rest in the legislature, in this Com- 
monwealth; that body being alone competent to act as the general 
guardian and protector of those who are disabled to act for them- 
selves. 

" It was undoubtedly wise to delegate this authority to other 
bodies, whose sessions are regular and constant, and whose struct- 
ure may enable them more easily to understand the merits of the 
particular application brought before them. But it does not fol- 
low that, because the power has been delegated by the legislature 
to courts of law, it is judicial in its character. For aught we see, 
the same authority might have been given to the selectmen of 
each town, or to the clerks or registers of the counties, it being 
a mere ministerial act, certainly requiring discretion, and some- 
times knowledge of law, for its due exercise, but still partaking 
in no degree of the characteristics of judicial power. It is doubt- 
less included in the general authority granted by the people to 
the legislature by the constitution. For full power and authority 
is given from time to time to make, ordain, and establish all 
manner of wholesome and reasonable orders, laws, stat- 
utes, and ordinances, directions, and restrictions (so as [*100] 
the same be not repugnant or contrary to the constitu- 
tion), as they shall judge to be for the good and welfare of the 
Commonwealth, and of the subjects thereof. No one imagines 
that, under this general authority, the legislature could deprive a 
citizen of his estate, or impair any valuable contract in which he 
might be interested. But there seems to be no reason to doubt 
that, upon his application, or the application of those who properly 
represent him if disabled from acting himself, a beneficial change 
of his estate, or a sale of it for purposes necessary and convenient 
for the lawful owner, is a just and proper subject for the exercise 
of that authority. It is, in fact, protecting him in his property, 
which the legislature is bound to do, and enabling him to derive 
subsistence, comfort, and education from property which might 
otherwise be wholly useless during that period of life when it might 
be most beneficially employed. 

" If this be not true, then the general laws, under which so 
many estates of minors, persons non compos mentis, and others, 
have been sold and converted into money, are unauthorized by 
the constitution, and void. For the courts derive their authority 
from the legislature, and, it not being of a judicial nature, if the 

[109] 



* 100 CONSTITUTIONAL LIMITATIONS. [CH. V. 

legislature had it not, they could not communicate it to any 
other body. Thus, if there were no power to relieve those from 
actual distress who had unproductive property, and were disabled 
from conveying it themselves, it would seem that one of the 
most essential objects of government — that of providing for the 
welfare of the citizens — would be lost. But the argument which 
has most weight on the part of the defendants is, that the legisla- 
ture has exercised its power over this subject in the only consti- 
tutional way, by establishing a general provision ; and that, having 
done this, their authority has ceased, they having no right to 
interfere in particular cases. And if the question were one of 
expediency only, we should perhaps be convinced by the argu- 
ment, that it would be better for all such applications to be made 
to the courts empowered to sustain them. But as a question 
of right, we think the argument fails. The constituent, when he 
has delegated an authority without an interest, may do the act 
himself which he has authorized another to do ; and especially 
when that constituent is the legislature, and is not prohibited 
by the constitution from exercising the authority. Indeed, 
[*101] the* whole authority might be revoked, and the legisla- 
ture resume the burden of the business to itself, if in its 
wisdom it should determine that the common welfare required 
it. It is not legislation which must be by general acts and rules, 
but the use of a parental or tutorial power, for purposes of kind- 
ness, without interfering with or prejudice to the rights of any but. 
those who apply for specific relief. The title of strangers is not 
in any degree affected by such an interposition." 

A similar statute was sustained by the Court for the Correction 
of Errors in New York. " It is clearly," says the Chancellor, 
" within the powers of the legislature, as parens patrice, to prescribe 
such rules and regulations as it may deem proper for the superin- 
tendence, disposition, and management of the property and effects 
of infants, lunatics, and other persons who are incapable of managing 
their own affairs. But even that power cannot constitutionally be 
so far extended as to transfer the beneficial use of the property to 
another person, except in those cases where it can legally be 
presumed the owner of the property would himself have given the 
use of his property to the other, if he had been in a situation to 
act for himself, as in the case of a provision out of the estate of an 
[110] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 101 

infant or lunatic for the support of an indigent parent or other 
near relative." x 

1 Cochran v. Van Surlay, 20 Wend. 373. See the same case in the Supreme 
Court, sub nom. Clarke v. Van Surlay, 15 Wend. 436. See also Suydam v. 
Williamson, 24 How. 427 ; Williamson v. Suydam, 6 Wall. 723 ; Heirs of Hol- 
man v. Bank of Norfolk, 12 Ala. 3G9 ; Flo e tine v. Barton, 2 Wall. 210. In 
Opinions of the Judges, 4 N. H. 572, the validity of such a special statute, under 
the constitution of New Hampshire, was denied. The judges say: "The objec- 
tion to the exercise of such a power by the legislature is, that it is in its nature 
both legislative and judicial. It is the province of the legislature to prescribe the 
rule of law, but to apply it to particular cases is the business of the courts of law. 
And the thirty-eighth article in the Bill of Rights declares that ' in the government 
of the State the three essential powers thereof, to wit, the legislative, executive, and 
judicial, ought to be kept as separate from, and independent of, each other as the 
nature of a free government will admit, or as consistent with that chain of con- 
nection that binds the whole fabric of the constitution in one indissoluble bond of 
union and amity. 1 The exercise of such a power by the legislature can never be 
necesssary. By the existing laws, judges of probate have very extensive juris- 
diction to license the sale of real estate of minors by their guardians. If the 
jurisdiction of the judges of probate be not sufficiently extensive to reach all 
proper cases, it may be a good reason why that jurisdiction should be extended, 
but can hardly be deemed a sufficient reason for the particular interposition of the 
legislature in an individual case. If there be a defect in the laws, they should be 
amended. Under our institutions all men are viewed as equal, entitled to enjoy 
equal privileges, and to be governed by equal laws. If it be fit and proper that 
license should be given to one guardian, under particular circumstances, to sell 
the estate of his ward, it is fit and proper that all other guardians should, under 
similar circumstances, have the same license. This is the very genius and spirit 
of our institutions. And we are of opinion that an act of the legislature to 
authorize the sale of the land of a particular minor by his guardian cannot be 
easily reconciled with the spirit of the article in the Bill of Rights which we have 
just cited. It is true that the grant of such a license by the legislature to the 
guardian is intended as a privilege and a benefit to the ward. But by the law of 
the land no minor is capable of assenting to a sale of his real estate in such a 
manner as to bind himself. And no guardian is permitted by the same law to 
determine when the estate of his ward ought and when it ought not to be sold. 
In the contemplation of the law, the one has not sufficient discretion to judge of 
the propriety and expediency of a sale of his estate, and the other is not to be 
intrusted with the power of judging. Such being the general law of the land, it 
is presumable that the legislature would be unwilling to rest the justification of an 
act authorizing the sale of a minor's estate upon any assent which the guardian 
or the minor could give in the proceeding. The question then is, as it seems to 
us, Can a ward be deprived of his inheritance without his consent by an act of 
the legislature which is intended to apply to no other individual ? The fifteenth 
article of the Bill of Rights declares that no subject shall be deprived of his prop- 
erty but by the judgment of his peers or the law of the land. Can an act of the 
legislature, intended to authorize one man to sell the land of another without his 

[111] 



* 102 CONSTITUTIONAL LIMITATIONS. [CH. V. 

[* 102] * The same ruling has been made in analogous cases. 

In Ohio, a special act of the legislature authorizing com- 
missioners to make sale of lands held in fee tail, by devisees under 
a will, in order to cut off the entailment and effect a partition 
between them, — the statute being applied for by the mother of 
the devisees and the executor of the will, and on behalf of the 
devisees, — was held not obnoxious to constitutional objection, and 
as sustainable on immemorial legislative usage, and on the same 
ground which would support general laws for the same purpose. 1 
In a case in the Supreme Court of the United States, where an 
executrix who had proved a will in New Hampshire made sale of 
lands 'without authority in Rhode Island, for the purpose of 

satisfying debts against the estate, a subsequent act of the 
[* 103] Rhode Island legislature, * confirming the sale, was held 

not an encroachment upon the judicial power. The land, 
it was said, descended to the heirs subject to a lien for the pay- 
ment of debts, and there is nothing in the nature of the act of 
authorizing a sale to satisfy the lien, which requires that it should 
be performed by a judicial tribunal, or that it should be performed 
by a delegate rather than by the legislature itself. It is remedial 
in its nature, to give effect to existing rights. 2 The case showed 
the actual existence of debts, and indeed a judicial license for the 
sale of lands to satisfy them had been granted in New Hampshire 
before the sale was made. The decision was afterwards followed 
in a carefully considered case in the same court. 3 In each of these 
cases it is assumed that the legislature does not by the special 
statute determine the existence or amount of the debts, and dis- 
putes concerning them would be determinable in the usual modes. 
Many other decisions have been made to the same effect. 4 

consent, be ' the law of the land ' in a free country ? If the question proposed 
to us can be resolved into these questions, as it appears to us it may, we feel en- 
tirely confident that the representatives of the people of this State will agree 
with us in the opinion we feel ourselves bound to express on the question sub- 
mitted to us, that the legislature cannot authorize a guardian of minors, by a 
special act or resolve, to make a valid conveyance of the real estate of his 
wards." 

1 Carroll v. Lessee of Olmsted, 16 Ohio, 251. 

2 Wilkinson v. Leland, 2 Pet. 660. 

3 Watkins v. Holman's Lessee, 16 Pet. 25-60. See also Florentine v. Barton, 
2 Wall. 210; Doe v. Douglass, 8 Blackf. 10. 

4 Thurston v. Thurston, 6 R. I. 296, 302 ; Williamson v. Williamson, 3 S. 

[112] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 103 

This species of legislation may perhaps be properly called pre- 
rogative remedial legislation. It hears and determines no rights ; 
it deprives no one of his property. It simply authorizes one's 
real estate to be turned into personal, on the application of the 
person representing his interest, and under such circumstances 
that the consent of the owner, if capable of giving it, would be 
presumed. It is in the nature of the grant of a privilege to one 
person, which at the same time affects injuriously the rights of no 
other. 1 

But a different case is presented when the legislature assumes 
to authorize a person who does not occupy a fiduciary rela- 
tion to * the owner, to make sale of real estate, to satisfy [* 104] 
demands which he asserts, but which are not judicially 
determined, or for any other purpose not connected with the con- 
venience or necessity of the owner himself. An act of the legis- 
lature of Illinois undertook to empower a party who had applied 
for it to make sale of the lands pertaining to the estate of a 
deceased person, in order to raise a certain specified sum of money 
which the legislature assumed to be due to him and another per- 
son, for moneys by them advanced and liabilities incurred on 
behalf of the estate, and to apply the same to the extinguishment of 
their claims. Now it is evident that this act was in the nature of 
a judicial decree, passed on the application of parties adverse in 
interest to the estate, and in effect adjudging a certain amount to 
be due them, and ordering lands to be sold for its satisfaction. As 

& M. 715; McComb v. Gilkey, 29 Miss. 146; Boon v. Bowers, 30 Miss. 246; 
Stewart v. Griffith, 33 Mo. 13 ; Estep v. Hutchman, 14 S. & R. 435 ; Snowhill 
v. Snowhill, 2 Green, Ch. 20; Dorsey v. Gilbert, 11 G. & J. 87 ; Norris v. Cly- 
mer, 2 Penn. St. 277 ; Coleman v. Can\ Walker, 258 ; Davison v. Johonnot, 7 
Met. 388 ; Towle v. Forney, 14 N. Y. 423 ; Leggett v. Hunter, 19 N. Y. 445 ; 
Kibby v. ChetwoodV Adm'rs, 4 T. B. Monr. 94; Shehan's Heirs v. Barnett's 
Heirs, 6 T. B. Monr. 594; Davis v. State Bank, 7 Ind. 316; Richardson v. 
Monson, 22 Conn. 98; Ward v. New England, &c. Co., 1 Cliff. 565; Sohier v. 
Massachusetts, &c. Hospital, 3 Cush. 483 ; Lobrano v. Nelligan, 9 Wall. 295. 
In Moore v. Maxwell, 18 Ark. 469, a special statute authorizing the administrator 
of one who held the mere naked legal title to convey to the owner of the equitable 
title was held valid. In Stanley v. Colt. 5 Wall. 119, an act permitting the sale 
of real estate which had been devised to charitable uses was sustained — no diver- 
sion of the gift being made. 

1 It would be equally competent for the legislature to authorize a person under 
legal disability — e. g. an infant — to convey his estate, as to authorize it to be 
conveyed by guardian. McComb v. Gilkey, 29 Miss. 146. 

8 [US] 



* 104 CONSTITUTIONAL LIMITATIONS. [CH. T. 

was well said by the Supreme Court of Illinois, in adjudging the 
act void : " If this is not the exercise of a power of inquiry into, 
and a determination of facts, between debtor and creditor, and 
that, too, ex parte and summary in its character, we are at a loss 
to understand the meaning of terms ; nay, that it is adjudging and 
directing the application of one person's property to another, on a 
claim of indebtedness, without notice to, or hearing of, the parties 
whose estate is divested by the act. That the exercise of such 
power is in its nature clearly judicial, we think too apparent to 
need argument to illustrate its truth. It is so self-evident from 

the facts disclosed that it proves itself." 1 
[* 105] * A case in harmony with the one last referred to was 

decided by the Supreme Court of Michigan. Under the 
act of Congress " for the relief of citizens of towns upon the lands 

1 Lane v. Dorman, 3 Scam. 242. In Dubois v. McLean, 4 McLean, 486, Judge 
Pope assumes that the case of Lane v. Dorman decides a special act, authorizing 
an executor to sell lands of the testator to pay debts against his estate, would 
be unconstitutional. We do not so understand that decision. On the contrary, 
another case in the same volume, Edwards v. Pope, p. 465, fully sustains the 
cases before decided, distinguishing them from Lane v. Dorman. But that indeed 
is also done in the principal case, where the court, after referring to similar cases 
in Kentucky, say: "These cases are clearly distinguished from the case at bar. 
The acts were for the benefit of all the creditors of the estates, without distinc- 
tion ; and in one case, in addition, for the purpose of perfecting titles contracted 
to be made by the intestate. The claims of the creditors of the intestate were to 
be established by judicial or other satisfactory legal proceedings, and, in truth 
in the case last cited, the commissioners were nothing more than special com- 
missioners. The legislative department, in passing these acts, investigated 
nothing, nor did an act which could be deemed a judic al inquiry. It neither 
examined proof, nor determined the nature or extent of claims ; it merely au- 
thorized the application of the real estate to the payment of debts generally, 
discriminating in favor of no one creditor, and giving no one a preference over 
another. Not so in the case before us ; the amount is investigated and ascer- 
tained, and the sale is directed for the benefit of two persons exclusively. The 
proceeds are to be applied to the payment of such claims and none other, for 
liabilities said to be incurred but not liquidated or satisfied; and those, too, 
created after the death of the intestate." See also Mason v. Wait, 4 Scam. 127— 
134. The case of Estep v. Dutchman, 14 S. & R. 435, would seem to be 
more open to question on this point than any of the others before cited. It was 
the case of a special statute, author zing the guardian of infant heirs to con- 
vey their lands in satisfaction of a contract made by their ancestor; and 
which was sustained. Compare this with Jones v. Perry, 10 Yerg. 59, where 
an act authorizing a guardian to sell lands to pay the ancestor's debts was held 
void. 

[114] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 105 

of the United States, under certain circumstances," approved May 
23, 1844, and which provided that the trust under said act should 
be conducted under such rules and regulations as may be prescribed 
by the legislative authority of the State," &c, the legislature passed 
an act authorizing the trustee to give deeds to a person named 
therein, and those claiming under him ; thus undertaking to dis- 
pose of the whole trust to the person thus named and his grantees, 
and authorizing no one else to be considered or to receive any relief. 
This was very plainly an attempted adjudication upon the rights 
of the parties concerned ; it did not establish regulations for the 
administration of the trust, but it adjudged the trust property to 
certain claimants exclusively, in disregard of any rights which 
might exist in others; and it was therefore declared to be 
void. 1 And it has also been held that, whether a * cor- [* 106] 
poration has been guilty of abuse of authority under its 

i Cash, Appellant, 6 Mich. 193. The case of Powers v. Bergen, 6 N. Y. 358, 
is perhaps to be referred to another principle than that of encroachment upon 
judicial authority. That was a case where the legislature, by special act, had 
undertaken to authorize the sale of property, not for the purpose of satis lying 
liens upon it, or of meeting or in any way providing for the necessities or 
wants of the owners, but solely, after paying expenses, for the investment of 
the proceeds. It appears from that case that the executors under the will of the 
former owner held the lands in trust for a daughter of the testator during her 
natural life, with a vested remainder in fee in her two children. The special act 
assumed to empower them to sell and convey the complete fee, and apply the 
proceeds, first, to the payment of their commissions, costs, and expenses ; second, 
to the discharge of assessments, liens, charges, and incumbrances on the land, 
of which, however, none were shown to exist ; and, third, to invest the proceeds 
and pay over the income, after deducting taxes and charges, to the daughter 
during her life, and after her decease to convey, assign, or pay over the same to the 
persons who would be entitled under the will. The court regarded this as an un- 
authorized interference with private property upon no necessity, and altogether 
void, as depriving the owners of their property contrary to the "law of the land." 
At the same time the authority of those cases, where it has been held that the 
legislature, acting as the guardian and protector of those who are disabled to act 
for themselves by reason of infancy, lunacy, or other like cause, may constitution- 
ally pass either general or private laws, under which an effectual disposition of 
their property might be made, was not questioned. The court cite, with appar- 
ent approval, the cases, among others, of Rice v. Parkman, 16 Mass. 326 ; Coch- 
ran v. Van Surlay, 20 Wend. 365 ; and Wilkinson v. Leland, 2 Pet. 657. The 
case of Ervine's Appeal, 16 Penn. St. 256, was similar, in the principles involved, 
to Powers v. Bergen, and was decided in the same way. See also Kneass's Ap- 
peal, 31 Penn. St. 87, and compare with Kerr v. Kitchen, 17 Penn. St. 438; 
Martin's Appeal, 23 Penn. St. 437 ; Tharp v. Fleming, 1 Houston, 592. 

[115] 



* 106 CONSTITUTIONAL LIMITATIONS. [CH. V. 

charter, so as justly to subject it to forfeiture, 1 and whether a 
widow is entitled to dower in a specified parcel of land, 2 are judicial 
questions which cannot be decided by the legislature. In these 
cases there are necessarily adverse parties ; the questions that 
would arise are essentially judicial, and over which the courts pos- 
sess jurisdiction at the common law ; and it is presumable that 
legislative acts of this character must have been adopted carelessly, 
and without a due consideration of the proper boundaries which 
mark the separation of legislative from judicial duties. 3 

1 State v. Noyes, 47 Me. 189 ; Campbell v. Union Bank, 6 How. (Miss.) 661 ; 
Canal Co. v. Railroad Co., 4 G. & J. 122 ; Regents of University v. Williams, 9 
G. & J. 365. In Miners Bank of Dubuque v. United States, 1 Morris, 482, a 
clause in a charter authorizing the legislature to repeal it for any abuse or mis- 
user of corporate privileges was held to refer the question of abuse to the legis- 
lative judgment. In Erie & North East R. R. Co. v. Casey, 26 Penn. St. 287, 
on the other hand, it was held that the legislature could not conclude the 
corporation by its repealing act, but that the question of abuse of corporate 
authority would be one of fact to be passed upon, if denied, by a jury, so that 
the act would be valid or void as the jury should find. The authority of both 
these cases was denied in Flint & Fentonville P. R. Co. v. Woodhull, 25 Mich. 
99, in which it was held that the reservation of a power to repeal a charter for 
violation of its provisions necessarily presented a judicial question, and the repeal 
must be preceded by a proper judicial finding. In Carey v. Gilts, 9 Geo. 523> 
the appointment by the legislature of a receiver for an insolvent bank was sus- 
tained ; and in Hindtnan v. Piper, 50 Mo. 292, a legislative appointment of a 
trustee was also sustained in a peculiar case. 

2 Edwards v. Pope, 3 Scam. 465. 

3 The unjust and dangerous character of legislation of this description are 
well stated by the Supreme Court of Pennsylvania: " When, in the exercise of 
proper legislative powers, general laws are enacted which bear, or may bear, on 
the whole community, if they are unjust and against the spirit of the constitu- 
tion, the whole community will be interested to procure their repeal by a voice 
potential. And that is the great security for just and fair legislation. But 
when individuals are selected from the mass, and laws are enacted affecting 
their property, without summons or notice, at the instigation of an interested 
party, who is to stand up for them, thus isolated from the mass, in injury and in- 
justice, or where are they to seek relief from such acts of despotic power? They 
have no refuge but in the courts, the only secure place for determining conflict- 
ing rights by due course of law. But if the judiciary give way, and, in the lan- 
guage of the Chief Justice in Greenough v. Greenough, in 11 Penn. St. 494, 
' confesses itself too weak to stand against the antagonism of the legislature and 
the bar, 1 one independent co-ordinate branch of the government will become the 
subservient handmaid of the other, and a quiet, insidious revolution will be 
effected in the administration of the government, whilst its form on paper re- 
mains the same." Ervine's Appeal, 16 Penn. St. 268. 

[116] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 107 

* We' have elsewhere referred to a number of cases where [* 107] 
statutes have been held unobjectionable which validated 
legal proceedings, notwithstanding irregularities apparent in them. 1 
These statutes may as properly be made applicable to judicial as 
to ministerial proceedings ; and although, when they refer to such 
proceedings, they may at first seem like an interference with 
judicial authority, yet if they are only in aid of judicial proceed- 
ings, and tend to their support by precluding parties from taking 
advantage of errors which do not affect their substantial rights, 
they cannot be obnoxious to the charge of usurping judicial power. 
The legislature does, or may, prescribe the rules under which the 
judicial power is exercised by the courts ; and in doing so, it may 
dispense with any of those formalities which are not essential to 
the jurisdiction of the court ; and whatever it may dispense with 
by statute anterior to the proceedings, we believe it may also dis- 
pense with by statute after the proceedings have been taken, if the 
court has failed to observe any of those formalities. But it would 
not be competent for the legislature to authorize a court to pro- 
ceed and adjudicate upon the rights of parties, without giving 
them an opportunity to be heard before it ; and, for the same rea- 
son, it would be incompetent for it, by retrospective legislation, to 
make valid proceedings which had been had in the courts, but 
which were void for want of jurisdiction over the parties. Such a 
legislative enactment would be doubly objectionable : first, as an 
exercise of judicial power, since, the proceedings in court being 
void, it would be the statute alone which would constitute an 
adjudication upon the rights of the parties; and, second, because, 
in all judicial proceedings, notice to parties and an opportunity 
to defend are essential, — both, of which they would be deprived 
of in such a case. 2 And for like reasons a statute validating 

1 See post, pp. 371-381. 

2 In McDaniel v. Correll, 19 111. 226, it appeared that a statute had been passed 
to make valid certain legal proceedings by which an alleged will was adjudged 
void, and which were had against non-resident defendants, over whom the courts 
had obtained no jurisdiction. The court say : " If it was competent for the legis- 
lature to make a void proceeding valid, then it has been done in this case. 
Upon this question we cannot for a moment doubt or hesitate. They can no 
more impart a binding efficacy to a void proceeding, than they can take one man's 
property from him and give it to another. Indeed, to do the one is to accomplish 
the other. By the decree in this case the will in question was declared void, 
and, consequently, if effect be given to the decree, the legacies -given to those 

[117] 



* 107 CONSTITUTIONAL LIMITATIONS. [CH. V. 

[* 108] proceedings * had before an intruder into a judicial office, 
before whom no one is authorized or required to appear, 
and who could have jurisdiction neither of the parties nor of the 
subject-matter, would also be void. 1 

absent defendants by the will are taken from them and given to others, according 
to our statute of descents. Until the passage of the act in question, they were 
not bound by the verdict of the jury in this case, and it could not form the basis 
of a valid decree. Had the decree been rendered before the passage of the act, 
it would have been as competent to make that valid as it was to validate the ante- 
cedent proceedings upon which alone the decree could rest. The want of juris- 
diction over the defendants was as fatal to the one as it could be to the other. If 
we assume the act to be valid, then the legacies which before belonged to the 
legatees have now ceased to be theirs, and this result has been brought about 
by the legislative act alone. The effect of the act upon them is precisely the 
same as if it had declared in direct terms that the legacies bequeathed by this will 
to these defendants should not go to them, but should descend to the heirs-at-law 
of the testator, according to our law of descents. This it will not be pretended 
that they could do directly, and they had no more authority to do it indirectly, 
by making proceedings binding upon them which were void in law." See, to the 
same effect, Richards v. Rote, 68 Penn. St. 248. 

1 In Denny v. Mattoon, 2 Allen, 361, a judge in insolvency had made certain 
orders in a case pending in another jurisdiction, and which the courts subse- 
quently declared to be void. The legislature then passed an act declaring that 
they " are hereby confirmed, and the same shall be taken and deemed good and 
valid in law, to all intents and purposes whatsoever." On the question of the 
validity of this act the court say : " The precise question is, whether it can be 
held to operate so as to confer a jurisdiction over parties and proceedings which 
it has been judicially determined does not exist, and give validity to acts and proc- 
esses which have been adjudged void. The statement of this question seems to 
us to suggest the obvious and decisive objection to any construction of the statute 
which would lead to such a conclusion. It would be a direct exercise by the 
legislature of a power in its nature clearly judicial, from the use of which it is 
expressly prohibited by the thirtieth article of the Declaration of Rights. The 
line which marks and separates judicial from legislative duties and functions is 
often indistinct and uncertain, and it is sometimes difficult to decide within which 
of the two classes a particular subject falls. All statutes of a declaratory nature, 
which are designed to interpret or give a meaning to previous enactments, or to 
confirm the rights of parties either under their own contracts or growing out of 
the proceedings of courts or public bodies, which lack legal validity, involve in 
a certain sense the exercise of a judicial power. They operate upon subjects 
which might properly come within the cognizance of the courts and form the 
basis of judicial consideration and judgment. But they may, nevertheless, be 
supported as being within the legitimate sphere of legislative action, on the ground 
that they do not declare or determine, but only confirm rights ; that they give 
effect to the acts of parties according to their intent; that they furnish new and 
more efficacious remedies, or create a more beneficial interest or tenure, or, by 

[118] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 109 



* Legislative Divorces. [* 109] 

There is another class of cases in which it would seem that 
action ought to be referred exclusively to the judicial tribunals, 
but in respect to which the prevailing doctrine seems to be, that 

supplying defects and curing informalities in the proceedings of courts, or of 
public officers acting within the scope of their authority, they give effect to acts to 
which there was the express or implied assent of the parties interested. Statutes 
which are intended to accomplish such purposes do not necessarily invade the 
province, or directly interfere with the action of judicial tribunals. But if we adopt 
the broadest and most comprehensive view of the power of the legislature, we 
must place some limit beyond which the authority of the legislature cannot go 
without trenching on the clear and well-defined boundaries of judicial power." 
"Although it may be difficult, if not impossible, to lay down any general rule 
which may serve to determine, in all cases, wh°ther the limits of constitutional 
restraint are overstepped by the exercise by one branch of the government of 
powers exclusively delegated to another, it certainly is practicable to apply to 
each case as it arises some test by which to ascertain whether this fundamental 
principle is violated. If, for example, the practical operation of a statute is to 
determine adversary suits pending between party and party, by substituting in 
place of the well-settled rules of law the arbitrary will of the legislature, and 
thereby controlling the action of the tribunal before which the suits are pending, 
no one can doubt that it would be an unauthorized act of legislation, because it 
directly infringes on the peculiar and appropriate functions of the judiciary. It 
is the exclusive province of the courts of justice to apply established' principles 
to cases within their jurisdiction, and to enforce their jurisdiction by rendering 
judgments and executing them by suitable process. The legislature have no 
power to interfere with this jurisdiction in such manner as to change the decision 
of cases pending before courts, or to impair or set aside their judgments, or to 
take cases out of the settled course of judicial proceeding. It is on this principle 
that it has been held, that the legislature have no power to grant a new trial or 
direct a rehearing of a cause which has been once judicially settled. The right 
to a review, or to try anew facts which have been determined by a verdict or 
decree, depends on fixed and well-settled principles, which it is the duty of the 
court to apply in the exercise of a sound judgment and discretion. These can- 
not be regulated or governed by legislative action. Taylor v. Place, 4 R. I. 324, 
337 ; Lewis v. Webb, 3 Me. 326 ; Dechastellux v. Fairchild, 15 Penn. St. 18. 
A fortiori, an act of the legislature cannot set aside or amend final judgments 
or decrees." The court further consider the general subject at length, and ad- 
judge the particular enactment under consideration void, both as an exercise of 
judicial authority, and also because, in declaring valid the void proceedings in 
insolvency against the debtor, under which assignees had been appointed, it took 
away from the debtor his property, " not by due process of law or the law of the 
land, but by an arbitrary exercise of legislative will." See, further, Griffin's 
Executor v. Cunningham, 20 Grat. 109. 

[119] 



* 109 CONSTITUTIONAL LIMITATIONS. [CH. V. 

[* 110] the legislature * has complete control unless specially 
restrained by the State constitution. The granting of 
divorces from the bonds of matrimony was not confided to the 
courts in England, and from the earliest days the Colonial and 
State legislatures in this country have assumed to possess the same 
power over the subject which was possessed by the Parliament, and 
from time to time they have passed special laws declaring a disso- 
lution of the bonds of matrimony in special cases. Now it is clear 
that " the question of divorce involves investigations which are 
properly of a judicial nature, and the jurisdiction over divorces 
ought to be confined exclusively to the judicial tribunals, under 
the limitations to be prescribed bylaw;" 1 and so strong is the 
general conviction of this fact, that the people in framing their 
constitutions, in a majority of the States, have positively forbidden 
any such special laws. 2 

1 2 Kent, 106. See Levins v. Sleator, 2 Greene (Iowa), 607. 

2 The following are constitutional provisions: — Alabama: Divorces from the 
bonds of matrimony shall not be granted but in the cases by law provided for, 
and by suit in chancery ; but decrees in chancery for divorce shall be final, un- 
less appealed from in the manner prescribed by law, within three months from the 
date of the enrolment thereof. Arkansas : The General Assembly shall not 
have power to pass any bill of divorce, but may prescribe by law the manner in 
■which such cases may be investigated in the courts of justice, and divorces granted. 
California: No divorce shall be granted by the legislature. The provision is 
the same or similar in Iowa, Indiana, Maryland, Michigan, Minnesota, Nevada, 
Nebraska, Oregon, New Jersey, Texas, and Wisconsin. Florida: Divorces from 
the bonds of matrimony shall not be allowed but by the judgment of a court, as 
shall be prescribed by law. Georgia : The Superior Court shall have exclusive 
jurisdiction in all cases of divorce, both total and partial. Illinois : The Gen- 
eral Assembly shall not pass . . . special laws . . . for granting divorces. Kan- 
sas : And power to grant divorces is vested in the District Courts subject to 
regulations bylaw. Kentucky: The General Assembly shall have no power to 
grant divorces, . . . but by general laws shall confer such powers on the courts 
of justice. Louisiana : The legislature may enact general laws regulating the . . . 
granting of divorce ; but no special laws shall be enacted relating to particular 
or individual cases. Massachusetts : All causes of marriage, divorce, and alimony 
. . . shall be heard and determined by the Governor and Council, until the legis- 
lature shall by law make other provision. Mississippi: Divorces from the bonds 
of matrimony shall not be granted but in cases provided for by law, and by 
suit in chancery. New Hampshire : All causes of marriage, divorce, and alimony 
. . . shall be heard and tried by the Superior Court, until the legislature shall 
by law make other provision. Neva York : . . . nor shall any divorce be granted 
otherwise than by due judicial proceedings. North Carolina: The General 
Assembly shall have power to pass general laws regulating divorce and alimony, 

[120] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 111 

* Of the judicial decisions on the subject of legislative [* 111] 
power over divorces there seem to be three classes of cases. 
The doctrine of the first class seems to be this : The granting of a 
divorce may be either a legislative or a judicial act, according as 
the legislature shall refer its consideration to the courts, or reserve 
it to itself. The legislature has the same full control over the sta- 
tus of husband and wife which it possesses over the other domestic 
relations, and may permit or prohibit it according to its own views 
of what is for the interest of the parties or the good of the public. 
In dissolving the relation, it proceeds upon such reasons as to it 
seem sufficient ; and if inquiry is made into the facts of the past, 
it is no more than is needful when any change of the law is con- 
templated, with a view to the establishment of more salutary rules 
for the future. The inquiry, therefore, is not judicial in its nature, 
and it is not essential that there be any particular finding of mis- 
conduct or unfitness in the parties. As in other cases of legisla- 

but shall not have power to grant a divorce or secure alimony in any particular 
case. Ohio : The General Assembly shall grant no divorce, nor exercise any 
judicial power, not herein expressly conferred. Pennsylvania: The legislature 
shall not have power to enact laws annulling the contract of marriage in any case 
where by law the courts of this Commonwealth are, or hereafter may be, empow- 
ered to decree a divorce. Tennessee: The legislature shall have no power to 
grant divorces, but may authorize the courts of justice to grant them for such 
causes as may be specified by law ; but such laws shall be general and uniform 
in their operation throughout the State. Virginia: The legislature shall confer 
on the courts the power to grant divorces, . . . but shall not, by special legis- 
lation, grant relief in such cases. West Virginia : The Circuit Courts shall have 
power under such general regulations as may be prescribed by law, to grant 
divorces, . . . but relief shall not be granted by special legislation in such 
cases. Missouri : The legislature shall not pass special laws divorcing any 
named parties. Under the Constitution of Michigan it was held that, as the 
legislature was prohibited from granting divorces, they could pass no special act 
authorizing the courts to divorce for a cause which was not a legal cause for 
divorce under the general laws. Teft v. Teft, 3 Mich. 67. See also Clark v. 
Clark, 10 N. H. 387; Simonds v. Simonds, 103 Mass. 572; s. c. 4 Am. Hep. 
576. The case of White v. White, 105 Mass. 325, was peculiar. A woman pro- 
cured a divorce from her husband, and by the law then in force he was prohibited 
from marrying again except upon leave procured from the court. He did marry 
again, however, and the legislature passed a special act to affirm this marriage. 
In pursuance of a requirement of the constitution, jurisdiction of all cases of 
marriage and divorce had previously been vested by law in the courts. Held, 
that this took from the legislature all power to act upon the subject in special 
cases, and the attempt to validate the marriage was consequently ineffectual. 

[121] 



* 111 CONSTITUTIONAL LIMITATIONS. [CH. V. 

tive action, the reasons or the motives of the legislature cannot be 
inquired into ; the relation which the law permitted before is now 
forbidden, and the parties are absolved from the obligations grow- 
ing out of that relation which continued so long as tlie relation 
existed, but which necessarily cease with its termination. Mar- 
riage is not a contract, but a status ; the parties cannot have vested 
rights of property in a domestic relation ; therefore the legislative 

act does not come under condemnation as depriving parties 
[* 112] of * rights contrary to the law of the land, but, as in other 

cases within the scope of the legislative authority, the leg- 
islative will must be regarded as sufficient reason for the rule 
which it promulgates. 1 

1 The leading ease on this subject is Starr v. Pease, 8 Conn. 541. On the 
question whether a divorce is necessarily a judicial act, the court say: " A fur- 
ther objection is urged against this act; viz., that by the new constitution of 1818, 
there is an entire separation of the legislative and judicial departments, and that 
the legislature can now pass no act or resolution not clearly warranted by that 
constitution ; that the constitution is a grant of power, and not a limitation of 
powers already possessed; and, in short, that there is no reserved power in the 
legislature since the adoption of this constitution. Precisely the opposite of this 
is true. From the settlement of the State there have been certain fundamental 
rules by which power has been exercised. These rules were embodied in an 
instrument called by some a constitution, by others a charter. All agree that it 
was the first constitution ever made in Connecticut, and made, too, by the people 
themselves. It gave very extensive powers to the legislature, and left too much 
(for it left every thing almost) to their will. The constitution of 1818 proposed 
to, and in fact did, limit that will. It adopted certain general principles by a 
preamble called a Declaration of Rights ; provided for the election and appoint- 
ment of certain organs of the government, such as the legislative, executive, and 
judicial departments; and imposed upon them certain restraints. It found the 
State sovereign and independent, with a legislative power capable of making all 
laws necessary for the good of the people, not forbidden by the Constitution of 
the United States, nor opposed to the sound maxims of legislation ; and it left 
them in the same condition, except so far as limitations were provided. There 
is now and has been a law in force on the subject of divorces. The law was 
passed a hundred and thirty years ago. It provides for divorces a vinculo matri- 
monii in four cases ; viz., adultery, fraudulent contract, wilful desertion, and seven 
years' absence unheard of. The law has remained in substance the same as it 
was when enacted in 1667. During all this period the legislature has interfered 
like the Parliament of Great Britain, and passed special acts of divorce a vin- 
culo matrimonii; and at almost every session since the Constitution of the United 
States went into operation, now forty-two years, and for the thirteen years of 
the existence of the Constitution of Connecticut, such acts have been, in multi- 
plied cases, passed and sanctioned by the constituted authorities of our State. 
We are not at liberty to inquire into the wisdom of our existing law upon this 

[122] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 113 

*The second class of cases to which we have alluded [* 113] 
hold that divorce is a judicial act in those cases upon 
which the general laws confer on the courts power to adjudicate ; 
and that consequently in those cases the legislature cannot pass 
special laws, but its full control over the relation of marriage will 
leave it at liberty to grant divorces in other cases, for such causes 
as shall appear to its wisdom to justify them. 1 

A third class of cases deny altogether the authority of these 
special legislative enactments, and declare the act of divorce to 
be in its nature judicial, and not properly within the province of 
the legislative power. 2 The most of these decisions, however, 
lay more or less stress upon clauses in the constitutions other 
than those which in general terms separate the legislative and 
judicial functions, and some of them would perhaps have been 
differently decided but for those other clauses. But it is safe to 
say, that the general sentiment in the legal profession is against 
the rightfulness of special legislative divorces ; and it is believed 

subject; nor into the expediency of such frequent interference of the legislature. 
"We can only inquire into the constitutionality of the act under consideration. 
The power is not prohibited either by the Constitution of the United States or 
by that of this State. In view of the appalling consequences of declaring the 
general law of the State, or the repeated acts of our legislature, unconstitutional 
and void, consequences easily perceived, but not easily expressed, — such as 
bastardizing the issue and subjecting the parties to punishment for adultery, — 
the court should come to the result only on a solemn conviction that their oaths 
of office and these constitutions imperiously demand it. Feeling myself no such 
conviction, I cannot pronounce the act void." Per Daggett, J., Hosmer, Ch. J., 
and Bissell, J., concurring. Peters, J., dissented. Upon the same subject, see 
Crane v. Meginnis, 1 G. & J. 463 ; Wright v. Wright, 2 Md. 429 ; Gaines v. 
Gaines, 9. B. Monr. 295; Cabell v. Cabell, 1 Met. (Ky.) 819 ; Dickson v. Dick- 
son, 1 Yerg. 110; Melizet's Appeal, 17 Penn. St. 449; Cronise v. Cronisc, 54 
Penn. St. 255 ; Adams v. Palmer, 51 Me. 4S0 ; Townsend v. Griffin, 4 Harr. 440 ; 
Noel v. Ewing, 9 Ind. 37 ; and the examination of the whole subject by Mr. 
Bishop, in his work on Marriage and Divorce. 

1 Levins v. Sleator, 2 Greene (Iowa), 604; Opinions of Judges, 16 Me. 479; 
Adams v. Palmer, 51 Me. 480. See also Townsend v. Griffin, 4 Harr. 440. In 
a well-reasoned case in Kentucky, it was held that a legislative divorce obtained 
on the application of one of the parties while suit for divorce was pending in a 
court of competent jurisdiction, would not affect the rights to property of the 
other, growing out of the relation. Gaines v. Gaines, 9 B. Monr. 295. 

2 Bri^ham v. Miller, 17 Ohio, 445 ; Clark ». Clark, 10 N. H. 380 ; Ponder 
v. Graham, 4 Flor. 23; State v. Fry, 4 Mo. 120; Bryson v. Campbell, 12 Mo. 
498; Bryson v. Bryson, 17 Mo. 590. See also Jones v. Jones, 12 Penn. St. 
353, 354. 

[123] 



* 113 CONSTITUTIONAL LIMITATIONS. [CH. V. 

that, if the question could originally have been considered by the 
courts, unembarrassed by any considerations of long acquiescence, 
and of the serious consequences which must result from affirming 
their unlawfulness, after so many had been granted and new 
relations formed, it is highly probable that these enactments would 
have been held to be usurpations of judicial authority, and we 
should have been spared the necessity for the special constitu- 
tional provisions which have since been introduced. Fortunately, 
these provisions render the question now discussed of little prac- 
tical importance ; at the same time that they refer the 
[* 111] decision * upon applications for divorce to those tribunals 
which must proceed upon inquiry, and cannot condemn 
without a hearing. 1 

The force of a legislative divorce must in any case be confined 
to a dissolution of the relation ; it can only be justified on the 
ground that it merely lays down a rule of conduct for the parties 
to observe towards each other for the future. It cannot inquire 
into the past, with a view to punish the parties for their offences 
against the marriage relation, except so far as the divorce itself 
can be regarded as a punishment. It cannot order the payment of 
alimony, for that would be a judgment; 2 it cannot adjudge upon 
conflicting claims to property between the parties, but it must leave 
all questions of this character to the courts. Those rights of 
property which depend upon the continued existence of the relation 
will be terminated by the dissolution, but only as in any other case 

1 If marriage is a natural right, then it would seem that any particular mar- 
riage that parties might lawfully form they must have a lawful right to continue 
in, unless by misbehavior they subject themselves to a forfeiture of the right. 
And if the legislature can annul the relation in one case, without any finding 
that a breach of the marriage contract has been committed, then it would seem 
that they might annul it in every case, and even prohibit all parties from entering 
into the same relation in the future. The recognition of a full and complete 
control of the relation in the legislature, to be exercised at its will, leads in- 
evitably to this conclusion ; so that, under the " rightful powers of legislation" 
which our constitutions confer upon the legislative department, a relation essen- 
tial to organized civil society might be abrogated entirely. Single legislative 
divorces are but single steps towards this barbarism which the application of the 
same principle to every individual case, by a general law, would necessarily bring 
upon us. See what is said by the Supreme Court of Missouri in Bryson v. Bry- 
son, 17 Mo. 593, 594. 

2 Crane v. Meginnis, 1 G. & J. 463 ; Potter's Dwarris on Statutes, 486. 

[124] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 114 

rights in the future may be incidentally affected by a change in 
the law. 1 

Legislative Encroachments upon Executive Power. 

If it is difficult to point out the precise boundary which sep- 
arates legislative from judicial duties, it is still more difficult to 
discriminate, in particular cases, between what is properly legis- 
lative and what is properly executive duty. The authority that 
makes the laws has large discretion in determining the means 
through which they shall be executed ; and the perform- 
ance of * many duties which they may provide for by law, [*115] 
they may refer either to the chief executive of the State, 
or, at their option, to any other executive or ministerial officer, or 
even to a person specially named for the duty. 2 What can be def- 
initely said on this subject is this : That such powers as are specially 
conferred by the constitution upon the governor, or upon any other 
specified officer, the legislature cannot require or authorize to be 
performed by any other officer or authority ; and from those duties 
which the constitution requires of him he cannot be excused by law. 3 

1 Starr v. Pease, 8 Conn. 545. 

2 This is affirmed in the recent case of Bridges v. Shallcross, in the Supreme 
Court of West Virginia, not yet reported. The constitution of that State pro- 
vides that the governor shall nominate, and by and with the advice and consent of 
the Senate appoint, all officers whose offices are established by the constitution, 
or shall be created by law, and whose appointment or election is not otherwise pro- 
vided for, and that no such officers shall be appointed or elected by the legislature. 
The Court decided that this did not preclude the legislature from creating a Board 
of Public Works of which the State officers should be ex officio the members. 

3 Attorney-General v. Brown, 1 Wis. 522. 4i Whatever power or duty is 
expressly given to, or imposed upon, the executive department, is altogether free 
from the interference of the other branches of the government. Especially is 
this the case where the subject is committed to the discretion of the chief executive 
officer, either by the constitution or by the laws. So long as the power is vested 
in him, it is to be by him exercised, and no other branch of the government can 
control its exercise." Under the Constitution of Ohio, which forbids the exercise 
of any appointing power by the legislature, except as therein authorized, it Mas 
held that the legislature could not, by law, constitute certain designated persons 
a State board, with power to appoint commissioners of the State House, and 
directors of the penitentiary, and to remove such directors for cause. State v. 
Kennon, 7 Ohio, N. s. 546. And see Davis v. State, 7 Md. 101 ; also, Bridges 
v. Shallcross, Sup. Court of West Va., not yet reported. As to what are public 
officers, see State v. Stanley, 66 N. C. 59 ; s. c. 8 Am. R p. 488. An appointment 
to office was said in Taylor v. Commonwealth, 3 J. J. Marsh. 404, to be intrinsi- 

[125] 



* 115 CONSTITUTIONAL LIMITATIONS. [CH. V. 

But other powers or duties the executive cannot exercise or assume 
except by legislative authority, and the power which in its discre- 
tion it confers it may also in its discretion withhold, or confide to 
other hands. 1 Whether in those cases where power is given by the 
constitution to the governor, the legislature have the same author- 
ity to make rules for the exercise of the power, that they have to 

make rules to govern the proceedings in the courts, may 
[*116] perhaps be a question. 2 It would seem * that this must 

depend generally upon the nature of the power, and upon 

cally an executive act. In a certain sense this is doubtless so, but it would not 
follow that the legislature could exercise no appointing power, or could confer 
none on others than the chief executive of the State. Where the constitution 
contains no negative words to limit the legislative authority in this regard, the 
legislature in enacting a law must decide for itself what are the suitable, con- 
venient, or necessary agencies for its execution, and the authority of the executive 
must be limited to taking care that the law is executed by such agencies. 

1 "In deciding this question [as to the authority of the governor], recurrence 
must be had to the constitution. That furnishes the only rule by which the court 
can be governed. That is the charter of the governor's authority. All the pow- 
ers delegated to him by or in accordance with that instrument, life is entitled to 
exercise, and no others. The constitution is a limitation upon the powers of the 
legislative department of the government, but it is to be regarded as a grant of 
powers to the other departments. Neither the executive nor the judiciary, 
therefore, can exercise any authority or power except such as is clearly granted 
by the constitution." Field v. People, 2 Scam. 80. 

2 Whether the legislature can constitutionally remit a fine, when the pardon- 
ing power is vested in the governor by the constitution, has been made a question ; 
and the cases of Haley v. Clarke, 26 Ala. 439, and People v. Bircham, 12 Cal. 
50, are opposed to each other upon the point. If the fine is payable to the 
State, perhaps the legislature should be considered as having the same right to 
discharge it that they would have to release any other debtor to the State from 
his obligation. In Morgan v. Buffington, 21 Mo. 549, it was held that the State 
Auditor was not obliged to accept as conclusive the certificate from the Speaker 
of the House as to the sum due a member of the House for attendance upon it, 
but that he might lawfully inquire whether the amount had been actually earned 
by attendance or not. The legislative rule, therefore, cannot go to the extent 
of compelling an executive officer to do something else than his duty, under any 
pretence of regulation. The power to pardon offenders is vested by the several 
State constitutions in the governor. It is not, however, a power which neces- 
sarily inheres in the executive. State v. Dunning, 9 Ind. 22. And several of 
the State constitutions have provided that it shall be exercised under such regu- 
lations as shall be prescribed by law. There are provisions more or less broad 
to this purport in those of Kansas, Florida, Alabama, Arkansas, Texas, Mississippi, 
Oregon, Indiana, Iowa, and Virginia. In State v. Dunning, 9 Ind. 20, an act of 
the legislature .requiring the applicant for the remission of a fine or forfeiture 

[126] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 116 

the question whether the constitution, in conferring it, has fur- 
nished a sufficient rule for its exercise. Where complete power to 
pardon is conferred upon the executive, it may he doubted if the 
legislature can impose restrictions under the name of rules or reg- 
ulations ; but where the governor is made commander-in-chief of 
the military forces of the State, it is obvious that his authority 
must be exercised under such proper rules as the legislature may 
prescribe, because the military forces are themselves under the 
control of the legislature, and military law is prescribed by that 
department. There would be this clear limitation upon the power 
of the legislature to prescribe rules for the executive department ; 
that they must not be such as, under pretence of regulation, 
divest the executive of, or preclude his exercising, any of his con- 
stitutional prerogatives or powers. Those matters which the 
constitution specifically confides to him the legislature cannot 
directly or indirectly take from his control. 

Delegating Legislative Power. 

One of the settled maxims in constitutional law is, that the 
power conferred upon the legislature to make laws cannot be 
delegated by that department to any other body or authority. 
Where the sovereign power of the State has located the authority, 
there it must remain ; and by the constitutional agency 
alone * the laws must be made until the constitution [*117] 
itself is changed. The power to whose judgment, wis- 
dom, and patriotism this high prerogative has been intrusted 
cannot relieve itself of the responsibility by choosing other agen- 

to forward to tbe governor, with his application, the opinion of certain county- 
officers as to the propriety of the remission, was sustained as an act within the 
power conferred by the constitution upon the legislature to prescribe regulations 
in these cases. And see Branham v. Lange, 16 Ind. 500. The power to reprieve 
is not included in the power to pardon. Ex parte Howard, 17 N. H. 515. It 
has been decided that to give parties who have been convicted and fined the 
benefit of the iusolvent laws is not an exercise of the pardoning power. Ex parte 
Scott, 19 Ohio, N. s. 581. And where the constitution provided that "In all 
criminal and penal cases, except those of treason and impeachment, [the 
governor] shall have power to grant pardons after conviction, and remit fines 
and forfeitures," &c, it was held that this did. not preclude the legislature from 
passing an act of pardon and amnesty for parties liable to prosecution, but not 
yet convicted. State v. Nichols, 26 Ark. 7-4 ; s. c. 7 Am. Rep. 600. 

[127] 



* 117 CONSTITUTIONAL LIMITATIONS. [CH. V. 

cies upon which the power shall be devolved, nor can it substitute 
the judgment, wisdom, and patriotism of any other body for those 
to which alone the people have seen fit to confide this sovereign 
trust. 1 

But it is not always essential that a legislative act should be a 
completed statute which must in any event take effect as law, at the 
time it leaves the hands of the legislative department. A statute 
may be conditional, and its taking effect may be made to depend 
upon some subsequent event. 2 Affirmative legislation may in some 
cases be adopted, of which the parties interested are at liberty to 
avail themselves or not at their option. A private act of incor- 
poration cannot be forced upon the corporators ; they may refuse 

the franchise if they so choose. 3 In these cases the legis- 
[* 118] lative * act is regarded as complete when it has passed 

through the constitutional formalities necessary to per- 

1 " These ai*e the bounds which the trust that is put in them by the society, and 
the law of God and nature, have set to the legislative power of every common- 
wealth, in all forms of government : — 

" First. They are to govern by promulgated established laws, not to be varied 
in particular cases, but to have one rule for rich and poor, for the favorite at 
court and the countryman at plough. 

" Secondly. These laws also ought to be designed for no other end ultimately 
but the good of the people. 

" Thirdly. They must not raise taxes on the property of the people without 
the consent of the people, given by themselves or their deputies. And this 
properly concerns only such governments where the legislative is always in being, 
or at least where the people have not reserved any part of the legislative to 
deputies, to be from time to time chosen by themselves. 

" Fourthly. The legislative neither must nor can transfer the power of making 
laws to anybody else, or place it anywhere but where the people have." Locke 
on Civil Government, § 142. 

That legislative power cannot be delegated, see Thorne v. Cramer, 15 Barb. 
112 ; Bradley v. Baxter, ib. 122 ; Barto v. Himrod, 8 N. Y. 483 ; People v. Stout, 
23 Barb. 349 ; Rice v. Foster, 4 Harr. 479 ; Santo v. State, 2 Iowa, 165 ; Gee- 
brick v. State, 5 Iowa, 491 ; State v. Beneke, 9 Iowa, 203 ; State v. Weir, 33 
Iowa, 134 ; People v. Collins, 3 Mich. 343 ; Railroad Company v. Commissioners 
of Clinton County, 1 Ohio, N. s. 77 ; Parker v. Commonwealth, 6 Penn. St. 507; 
Commonwealth v. McWilliams, 11 Penn. St. 61; Maize v. State, 4 Ind. 342; 
Meshmeier v. State, 11 Ind. 482 ; State v. Parker, 26 Vt. 362; State v. Swisher, 
17 Texas, 441 ; State v. Copeland, 3 R. I. 33 ; State v. Wilcox, 45 Mo. 458. 

2 Brig Aurora v. United States, 7 Cranch, 382 ; Bull v. Read, 13 Grat. 78 ; 
State v. Parker, 26 Vt. 357; Peck v. Weddell, 17 Ohio, N. s. 271; State o. 
Kirkley, 29 Md. 85. 

3 Angell and Ames on Corp. § 81. 

[128] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 118 

fected legislation, notwithstanding its actually going into operation 
as law may depend upon its subsequent acceptance. We have 
elsewhere spoken of municipal corporations, and of the powers of 
legislation which may be and commonly are bestowed upon them, 
and the bestowal of which is not to be considered as trenching 
upon the maxim that legislative power is not to be delegated, since 
that maxim is to be understood in the light of the immemorial 
practice of this country and of England, which has always recog- 
nized the propriety of vesting in the municipal organizations cer- 
tain powers of local regulation, in respect to which the parties 
immediately interested may fairly be supposed more competent to 
judge of their needs than any central authority. As municipal 
organizations are mere auxiliaries of the State government in the 
important business of municipal rule, the legislature may create 
them at will from its own views of propriety or necessity, and 
without consulting the parties interested ; and it also possesses the 
like power to abolish them, without stopping to inquire what may 
be the desire of the corporators on that subject. 1 

Nevertheless, as the corporators have a special and peculiar 
interest in the terms and conditions of the charter, in the powers 
conferred and liabilities imposed, as well as in the general ques- 
tion whether they shall originally be or afterwards remain incor- 
porated at all or not, and as the burdens of municipal government 
must rest upon their shoulders, and especially as by becoming 
incorporated they are held, in law, to undertake to discharge the 
duties the charter imposes, it seems eminently proper that their 
voice should be heard on the question of their incorporation, and 
that their decision should be conclusive, unless, for strong reasons 
of State policy or local necessity, it should seem important for the 
State to overrule the opinion of the local majority. The right to 
refer any legislation of this character to the people peculiarly 
interested does not seem to be questioned, and the reference is 
by no means unusual. 2 

1 City of Patterson v. Society, &c, 4 Zab. 3S5 ; Cheany v. Hooser, 9 B. Monr. 
330 ; Berlin v. Gorhani, 34 N. H. 266. The question of a levee tax may lawfully 
be referred to the voters of the district of territory over which it is proposed to 
spread the tax, regardless of municipal divisions. Alcorn v. Hamer, 38 Miss. 
652. And see, in general, Angell and Ames on Corp. § 31 and note ; also post, 
pp. 190-192. 

2 Bull v. Read, 13 Grat. 78 ; Corning v. Greene, 23 Barb. 33 ; Morford v. 

9 [ 129 ] 



* 119 CONSTITUTIONAL LIMITATIONS. [CH. V. 

[*119] *For the like reasons the question whether a county or 
township shall be divided and a new one formed, 1 or two 
townships or school districts formerly one be reunited, 2 or a county 
seat located at a particular place, or after its location removed 
elsewhere, 3 or the municipality contract particular debts, or engage 
in a particular improvement, 4 is always a question which may 
with propriety be referred to the voters of the municipality for 
decision. 

Unger, 8 Iowa, 82; City of Patterson v. Society, &c, 4 Zab. 385; Gorham 
v. Springfield, 21 Me. 58 ; Commonwealth v. Judges of Quarter Sessions, 8 Penn. 
St. 391; Commonwealth v. Painter, 10 Penn. St. 214; Call v. Chadbourne, 46 
Me. 206; State v. Scott, 17 Mo. 521 ; State v. Wilcox, 45 Mo. 458; Hobart v. 
Supervisors, &c, 17 Cal. 23; Bank of Chenango v. Brown, 26 N. Y. 467; 
Steward v. Jefferson, 3 Harr. 335; Burgess v. Pue, 2 Gill, 11 ; Lafayette, &c, 
R. R. Co. v. Geiger, 34 Ind. 185. The right to refer to the people of several 
municipalities the question of their consolidation was disputed in Smith v. 
McCarthy, 56 Penn. St. 359, but sustained by the court. 

1 State v. Reynolds, 5 Gilm. 1. See State v. McNiell, 24 Wis. 149. The 
question whether a general school law shall be accepted in a particular munici- 
pality may be referred to its voters. State v. Wilcox, 45 Mo. 458. 

2 Commonwealth v. Judges, &c, 8 Penn. St. 391; Call v. Chadbourne, 46 
Me. 206. 

3 Commonwealth v. Painter, 10 Penn. St. 214. See People v. -Salomon, 51 

111. 37. 

4 The following are cases in which municipal subscriptions to works of inter- 
nal improvement, under statutes empowering them to be made, have been sus- 
tained: Goddin v. Crump, 8 Leigh, 120; Bridgeport v. Housatonic Railroad 
Co., 15 Conn. 475; Thomas v. Leland, 24 Wend. 65; Clarke v. Rochester, 24 
Barb. 446 ; Benson v. Mayor, &c, of Albany, 21 Barb. 248 ; Corning v. Greene, 
23 Barb. 33; Grant v. Courter, 24 Barb. 232; Starin v. Genoa, 29 Barb. 442, 
and 23 N. Y. 439 ; Bank of Rome v. Village of Rome, 18 1S T . Y. 38 ; Pretty- 
man v. Supervisors, &c, 19 111. 406 ; Robertson v. Rockford, 21 111. 451 ; John- 
son v. Stack, 24 111. 75; Perkins v. Perkins, ib. 208 ; Bushnell v. Beloit, 10 Wis. 
195 ; Clark v. Janesville, ib. 136 ; Stein v. Mobile, 24 Ala. 591 ; Mayor of 
Wetumpka v. Winter, 29 Ala. 651 ; Pattison v. Yuba, 13 Cal. 175 ; Blanding 
v. Burr, ib. 343 ; Hobart v. Supervisors, &c, 17 Cal. 23 ; Dubuque County v. 
Railroad Co., 4 Greene (Iowa), 1; State v. Bissell, ib. 328; Clapp v. Cedar 
County, 5 Iowa, 15 ; Gaines v. Robb, 8 Iowa, 193 ; McMillen v. Boyles, 6 Iowa, 
304 ; Taylor v. Newberne, 2 Jones Eq. 141 ; Caldwell v. Justices of Burke, 4 
Jones Eq. 323 ; Louisville, &c, Railroad Co. v. Davidson, 1 Sneed, 637 ; Nichol 
v. Mayor of Nashville, 9 Humph. 252; Railroad Co. v. Commissioners of Clinton 
Co., 1 Ohio, N. s. 77; Trustees of Paris v. Cherry, 8 Ohio, N. 8. 564; Cass 
v. Dillon, 2 Ohio, N. s. 607; State v. Commissioners of Clinton Co., 6 Ohio, 
N. s. 280 ; State v. Van Home, 7 Ohio, n. s. 327 ; State u. Trustees of Union, 
8 Ohio, N. s. 394; Trustees, &c. v. Shoemaker, 12 Ohio, N. s. 624; State v. 

[130] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 119 

The question then arises, whether that which may be 
done in * reference to any municipal organization within [* 120] 
the State may not also be done in reference to the State 
at large ? May not any law framed for the State at large be made 
conditional on an acceptance by the people at large, declared 
through the ballot-box ? If it is not unconstitutional to delegate 
to a single locality the power to decide whether it will be governed 
by a particular charter, must it not quite as clearly be within the 
power of the legislature to refer to the people at large, from whom 
all power is derived, the decision upon any proposed statute affect- 
ing the whole State ? And can that be called a delegation of power 
which consists only in the agent or trustee referring back to the 
principal the final decision in a case where the principal is the 
party concerned, and where perhaps there are questions of- policy 
and propriety involved which no authority can decide so satis- 
factorily and so conclusively as the principal to whom they are 
referred ? 

If the decision of these questions is to depend upon the weight 
of judicial authority up to the present time, it must be held that 
there is no power to refer the adoption or rejection of a general 
law to the people of the State, any more than there is to refer it to 

Commissioners of Hancock, 12 Ohio, N. s. 596; Powers v. Dougherty Co., 23 
Geo. 65; San Antonio v. Jones, 28 Texas, 19; Commonwealth v. McWillianis, 
11 Penn. St. 61; Sharpless v. Mayor, &c, 21 Penn. St. 147; Moers U.Reading, 
ib. 18S ; Talbot v. Dent, 9 B. Monr. 526 ; Slack v. Railroad Co., 13 B. Monr. 1 ; 
City of St. Louis v. Alexander, 23 Mo. 483; City of Aurora v. West, 9 Ind. 74; 
Cotton v. Commissioners of Leon, 6 Fla. 610; Copes v. Charleston, 10 Rich. 
491 ; Commissioners of Knox County v. Aspinwall, 21 How. 539, and 24 How. 
326; Same v. Wallace, 21 How. 547; Zabriske v. Railroad Co., 2:J How. 381; 
Amey v. Mayor, &c, 24 How. 365 ; Gelpecke v. Dubuque, 1 Wal. 175 ; Thomp- 
son v. Lee County, 3 Wall. 327 ; Rogers v. Burlington, ib. 654 ; Butler v. Dun- 
ham, 27 111. 474; Gibbons v. Mobile & Great Northern Railroad Co., 36 Ala. 
410; St. Joseph, &c, Railroad Co. v. Buchanan Co. Court, 39 Mo. 485; State 
v. Linn Co. Court, 44 Mo. 504; Stewart v. Supervisors of Polk Co., 30 Iowa, 
9 ; John v. C. R. & F. W. R. R. Co., 35 Ind. 539 ; Leavenworth County v. Mil- 
ler, 7 Kan. 479; Walker v. Cincinnati, 21 Ohio, N. s. 14; Ex parte Selma, &c, 
R.R. Co., 45 Ala. 696 ; S. & V. R.R. Co. v. Stockton, 41 Cal. 149. In several 
of them the power to authorize the municipalities to decide upon such subscrip- 
tions has been contested as a delegation of legislative authority, but the courts — 
even those which hold the subscriptions void on other grounds — do not look upon 
these cases as being obnoxious to the constitutional principle referred to in the 
text. 

[ 131 ] 



* 120 CONSTITUTIONAL LIMITATIONS. [CH. V. 

any other authority. The prevailing doctrine in the courts appears 
to be, that, except in those cases where, by the constitution, the 
people have expressly reserved to themselves a power of decision, 
the function of legislation cannot be exercised by them, even to the 
extent of accepting or rejecting a law which has been framed for 
their consideration. " The exercise of this power by the people in 
other cases is not expressly and in terms prohibited by the constitu- 
tion, but it is forbidden by necessary and unavoidable implication. 
The Senate and Assembly are the only bodies of men clothed with 
the power of general legislation. They possess the entire power, 
with the exception above stated. The people reserved no part of 
it to themselves [with that exception], and can therefore exercise 
it in no other case." It is therefore held that the legislature have 
no power to submit a proposed law to the people, nor have the 
people power to bind each other by acting upon it. They volun- 
tarily surrendered that power when they adopted the constitution. 
The government of the State is democratic, but it is a represen- 
tative democracy, and in passing general laws the people act only 

through their representatives in the legislature. 1 
f* 121] *Nor, it seems, can such legislation be sustained as 

legislation of a conditional character, whose force is to 
depend upon the happening of some future event, or upon some 
future change of circumstances. " The event or change of circum- 
stances on which a law may be made to take effect must be such 
as, in the judgment of the legislature, affects the question of the 

1 Per Buggies, Ch. J., in Barto v. Himrod, 8 N. Y. 489. It is worthy of con- 
sideration, however, whether there is any thing in the reference of a statute to 
the people for acceptance or rejection which is inconsistent with the representa- 
tive system of government. To refer it to the people to frame and agree upon 
a statute for themselves would be equally impracticable and inconsistent with 
the representative system ; but to take the opinion of the people upon a bill 
already framed by representatives and submitted to them, is not only practicable, 
but is in precise accordance with the mode in which the constitution of the State 
is adopted, and with the action which is taken in many other cases. The repre- 
sentative in these cases has fulfilled precisely those functions which the people as 
a democracy could not fulfil ; and where the case has reached a stage when the 
body of the people can act without confusion, the representative has stepped 
aside to allow their opinion to be expressed. The legislature is not attempting 
in such a case to delegate its authority to a new agency, but the trustee, vested 
with a large discretionary authority, is taking the opinion of the principal upon 
the necessity, policy, or propriety of an act which is to govern the principal 
himself. See Smith v. Janesville, 26 Wis. 291. 

[132] 



CH. V.] POWERS EXERCISED "BY LEGISLATIVE DEPARTMENT. * 121 

expediency of the law ; an event on which the expediency of the 
law in the opinion of the law-makers depends. On this question 
of expediency, the legislature must exercise its own judgment 
definitively and finally. When a law is made to take effect upon 
the happening of such an event, the legislature in effect declared 
the law inexpedient if the event should not happen, but expedient 
if it should happen. They appeal to no other man or men to judge 
for them in relation to its present or future expediency. They 
exercise that power themselves, and then perform the duty which 
the constitution imposes upon them." But it was held that in the 
case of the submission of a proposed free-school law to the people, 
no such event or change of circumstances affecting the expediency 
of the law was expected to happen. The wisdom or expediency 
of the School Act, abstractly considered, did not depend on the 
vote of the people. If it was unwise or inexpedient before that 
vote was taken, it was equally so afterwards. The event on which 
the act was to take effect was nothing else than the vote of the 
people on the identical question which the constitution makes 
it the duty of the legislature itself to decide. The legislature 
has no power to make a statute dependent on such a 
* contingency, because it would be confiding to others [* 122] 
that legislative discretion which they are bound to exer- 
cise themselves, and which they cannot delegate or commit to 
any other man or men to be exercised. 1 

1 Per Ruggles, Ch. J., in Barto v. Himrod, 8 N. Y. 490. And see Santo v. 
State, 2 Iowa, 165; State v. Beneke, 9 Iowa, 203; State v. Swisher, 17 Texas, 
441 ; State v. Field, 17 Mo. 529 : Bank of Chenango v. Brown, 26 N. Y. 470; 
People v. Stout, 23 Barb. 349 ; State v. Wilcox, 45 Mo. 458. But upon this 
point there is great force in what is said by Redfield, Ch. J., in State v. Parker, 
26 Vt. 357 : " If the operation of a law may fairly be made to depend upon a 
future contingency, then, in my apprehension, it makes no essential difference 
what is the nature of the contingency, so it be an equal and fair one, a moral and 
legal one, not opposed to sound policy, and so far connected with the object and 
purpose of the statute as not to be a mere idle and arbitrary one. And to us the 
contingency, upon which the present statute was to be suspended until another 
legislature should meet and have opportunity of reconsidering it, was not only 
proper and legal, and just and moral, but highly commendable and creditable to 
the legislature who passed the statute ; for at the very threshold of inquiry into 
the expediency of such a law lies the other and more important inquiry, Are the 
people prepared for such a law ? Can it be successfully enforced ? These ques- 
tions being answered in the affirmative, he must be a bold man who would even 
vote against the law; and something more must he be who would, after it had 

[133] 



* 123 CONSTITUTIONAL LIMITATIONS. [CH. V. 

[* 123] *The same reasons which preclude the original enact- 
ment of a law from being referred to the people would 

been passed with that assurance, be willing to embarrass its operation or rejoice 
at its defeat. 

" After a full examination of the arguments by which it is attempted to be 
sustained that statutes made dependent upon such contingencies are not valid 
laws, and a good deal of study and reflection, I must declare that I am fully 
convinced — although at first, without much examination, somewhat inclined to 
the same opinion — that the opinion is the result of false analogies, and so founded 
upon a latent fallacy. It seems to me that the distinction attempted between 
the contingency of a popular vote and other future contingencies is without all 
just foundation in sound policy or sound reasoning, and tbat it has too often been 
made more from necessity than choice, — rather to escape from an overwhelming 
analogy than from any obvious difference in principle in the two classes of cases ; 
for . . . one may find any number of cases in the legislation of Congress, where 
statutes have been made dependent upon the shifting character of the revenue 
laws, or the navigation laws, or commercial rules, edicts, or restrictions of other 
countries. In some, perhaps, these laws are made by representative bodies, or, 
it may be, by the people of these States, and in others by the lords of the treas- 
ury, or the boards of trade, or by the proclamation of the sovereign ; and in all 
these cases no question can be made of the perfect legality of our acts of Congress 
being made dependent upon such contingencies. It is, in fact, the only possible 
mode of meeting them, unless Congress is kept constantly in session. The same 
is true of acts of Congress by which power is vested in the President to levy 
troops or draw money from the public treasury, upon the contingency of a decla- 
ration or an act of war committed by some foreign state, empire, kingdom, prince, 
or potentate. If these illustrations are not sufficient to show the fallacy of the 
argument, more would not avail." See also State v. Noyes, 10 Fost. 292 ; Bull 
v. Read, 13 Grat. 78 ; Johnson v. Rich, 9 Barb. 680 ; State v. Reynolds, 5 Gilm. 
1 ; Robinson v. Bidwell, 22 Cal. 349. In the recent case of Smith v. Janesville, 
26 Wis. 291, Chief Justice Dixon discusses this subject in the following lan- 
guage : " But it is said that the act is void, or at least so much of it as pertains 
to the taxation of shares in national banks, because it was submitted to a vote 
of the people, or provided that it should take effect only after approval by a 
majority of the electors voting on the subject at the next general election. This 
was no more than providing that the act should take effect on the happening of 
a certain future contingency, that contingency being a popular vote in its favor. 
No one doubts the general power of the legislature to make such regulations and 
conditions as it pleases with regard to the taking effect or operation of laws. 
They may be absolute, or conditional and contingent ; and if the latter, they 
may take effect on the happening of any event which is future and uncertain. 
Instances of this kind of legislation are not unfrequent. The law of Congress 
suspending the writ of habeas corpus during the late rebellion is one, and several 
others are referred to in the case In re Richard Oliver, 17 Wis. 681. It being 
conceded that the legislature possesses this general power, the only question here 
would seem to be, whether a vote of the people in favor of a law is to be excluded 
from the number of those future contingent events upon which it may be pro- 

[ 134 ] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 123 

render it equally incompetent to refer to their decision the ques- 
tion, whether an existing law should be repealed. If the one is 
" a plain surrender to the people of the law-making power," so 
also is the other. 1 It would seem, however, that if a legislative 
act is, by its terms, to take effect in any contingency, it is not 
unconstitutional to make the time when it shall take effect depend 
upon the event of a popular vote being for or against it, — the 
time of its going into operation being postponed to a later day in 
the latter contingency. 2 It would also seem that if the question 
of the acceptance or rejection of a municipal charter can be 
referred to the voters of the locality specially interested, it would 
be equally competent to refer to them the question whether a 
State law establishing a particular police regulation should be of 
force in such locality or not. Municipal charters refer most 
questions of local government, including police regulations, to the 
local authorities ; on the supposition that they are better able to 

vided that it shall take effect. A similar question was before this court in a late 
case (State ex rel. Attorney-General v. O'Neill, Mayor, &c, 24 Wis. 149), and 
was very elaborately discussed. We came unanimously to the conclusion in that 
case that a provision for a vote of the electors of the city of Milwaukee in favor 
of an act of the legislature, before it should take effect, was a lawful contingency, 
and that the act was valid. That was a law affecting the people of Milwaukee 
particularly, while this was one affecting the people of the whole State. There 
the law was submitted to the voters of that city, and here it was submitted to 
those of the State at large. What is the difference between the two cases ? It 
is manifest, on principle, that there cannot be any. The whole re'asoning of that 
case goes to show that this act must be valid, and so it has been held in the best- 
considered cases, as will be seen by reference to that opinion. We are con- 
strained to hold, therefore, that this act is and was in all respects valid from the 
time it took effect, in November, 1866 ; and consequently that there was no want 
of authority for the levy and collection of the taxes in question." This decision, 
though opposed to many others, appears to us entirely sound and reasonable. 

1 Geebrick v. State, 5 Iowa, 491 ; Rice v. Foster, 4 Harr. 492 ; Parker v. Com- 
monwealth, 6 Penn. St. 507. 

2 State v. Parker, 26 Yt. 357. The act under consideration in that case was, 
by its terms, to take effect on the second Tuesday of March after its passage, 
unless the people, to whose votes it was submitted, should declare against it, in 
which case it should take effect in the following December. The case was dis- 
tinguished from Barto v. Himrod, 8 N. Y. 483, and the act sustained. At the 
same time the court express their dissent from the reasoning upon which the New 
York case rests. In People v. Collins, 3 Mich. 343, the court was equally divided 
in a case similar to that in Vermont, except that in the Michigan case the law, 
which was passed and submitted to the people in 1853, was not to go into effect 
until 1870, if the vote of the people was against it. 

[135] 



* 123 CONSTITUTIONAL LIMITATIONS. [CH. V. 

decide for themselves upon the needs, as well as the sentiments, of 
their constituents, than the legislature possibly can be, and are 
therefore more competent to judge what local regulations are 
important, and also how far the local sentiment will assist in their 
enforcement. The same reasons would apply in favor of permit- 
ting the people of the locality to accept or reject for themselves a 
particular police regulation, since this is only allowing them less 
extensive powers of local government than a municipal charter 
would confer ; and the fact that the rule of law on that 
[* 124] subject might be different in different * localities, accord- 
ing as the people accepted or rejected the regulation, 
would not seem to affect the principle, when the same result is 
brought about by the different regulations which municipal cor- 
porations establish for themselves in the exercise of an undisputed 
authority. 1 It is not to be denied, however, that there is con- 
siderable authority against the right of legislative delegation in 
these cases. 

The legislature of Delaware, in 1847, passed an act to authorize 
the citizens of the several counties of the State to decide by bal- 
lot whether the license to retail intoxicating liquors should be per- 
mitted. By this act a general election was to be held ; and if a 
majority of votes in any county should be cast against license, it 

1 In New Hampshire an act was passed declaring bowling-alleys, situate within 
twenty-five rods of a dwelling-house, nuisances ; but the statute was to be in 
force only in those towns in which it should be adopted in town meeting. In 
State v. Noyes, 10' Fost. 293, this act was held to be constitutional. "Assuming," 
say the court, "that the legislature has the right to confer the power of local 
regulation upon cities and towns, that is, the power to pass ordinances and by- 
laws, in such terms and with such provisions, in the classes of cases to which the 
power extends, as they may think proper, it seems to us hardly possible seriously 
to contend that the legislature may not confer the power to adopt within such 
municipality a law drawn up and framed by themselves. If they may pass a 
law authorizing towns to make ordinances to punish the keeping of billiard-rooms, 
bowling-alleys, and other places of gambling, they may surely pass laws to punish 
the same acts, subject to be adopted by the town before they can be of force in 
it." And it seems to us difficult to answer this reasoning, if it be confined to such 
laws as fall within the proper province of local government, and which are there- 
fore usually referred to the judgment of the municipal authorities or their constit- 
uency. A similar question arose in Smith v. Village of Adrian, 1 Mich. 495, but 
was not decided. In Bank of Chenango v. Brown, 26 N. Y. 467, it was held 
competent to authorize the electors of an incorporated village to determine for 
themselves what sections of the general act for the incorporation of villages should 
apply to their village. See, further, People v. Salomon, 51 111. 37. 
[136] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 124 

should not thereafter be lawful for any person to retail intoxicat- 
ing liquors within such county ; but if the majority should be cast 
in favor of license, then licenses might be granted in the county 
so voting, in the manner and under the regulations in said act 
prescribed. The Court of Errors and Appeals of that State held 
this act void, as an attempted delegation of the trust to make laws, 
and upon the same reasons which support the cases before cited, 
where acts have been held void which referred to the people of the 
State for approval a law of general application. 1 The same de- 
cision was made near the same time by the Supreme 
* Court of Pennsylvania, 2 followed afterwards in an elabo- [* 125] 
rate opinion by the Supreme Court of Iowa. 3 

By statute in Indiana it was enacted that no person should retail 
spirituous liquors, except for sacramental, mechanical, chemical, 
medicinal, or culinary purposes, without the consent of the 
majority of the legal voters of the proper township who might 
cast their votes for license at the April election, nor without filing 
with the county auditor a bond as therein provided ; upon the filing 
of which the auditor was to issue to the person filing the same a 
license to retail spirituous liquors, which was to be good for one 
year from the day of the election. This act was held void upon 
similar reasons to those above quoted. 4 This case follows the 
decisions in Pennsylvania and Delaware, 5 and it has since been 
followed by another decision of the Supreme Court of that State, 
except that while in the first case only that portion of the statute 
which provided for submission to the people was held void, in the 
later case that unconstitutional provision was held to affect the 
whole statute with infirmity, and render the whole invalid. 6 

Irrepealable Laivs. 

Similar reasons to those which forbid the legislative department 
of the State from delegating its authority will also forbid its pass- 

1 Rice v. Foster, 4 Harr. 479. 

2 Parker v. Commonwealth, 6 Perm. St. 507. 

3 Geebrick v. State, 5 Iowa, 495. 

4 Maize v. State, 4 Ind. 342. 

5 Parker v. Commonwealth, 6 Penn. St. 507 ; Rice v. Foster, 4 Harr. 479 . 
See also State v. Field, 17 Mo. 529; Commonwealth v. McWilliams, 11 Penn. 
St. 61 ; State v. Copeland, 3 R. I. 33. 

6 Meshmeier v. State, 11 Ind. 481. 

[137] 



* 125 CONSTITUTIONAL LIMITATIONS. [CH. V. 

ing any irrepealable law. The constitution, in conferring the leg- 
islative authority, has prescribed to its exercise any limitations 
which the people saw fit to impose ; and no other power than the 
people can superadd other limitations. To say that the legislature 
may pass irrepealable laws, is to say that it may alter the very 
constitution from which it derives its authority ; since in so far as 
one legislature could bind a subsequent one by its enactments, it 
could in the same degree reduce the legislative power of its suc- 
cessors, and the process might be repeated until, one by one, the 
subjects of legislation would be excluded altogether from 
[* 126] their control, and the constitutional provision, that the * leg- 
islative power shall be vested in two houses, would be to a 
greater or less degree rendered ineffectual. 1 

" Acts of Parliament," says Blackstone, " derogatory to the 
power of subsequent Parliaments, bind not ; so the statute 11 
Henry VII. c. 1, which directs that no person for assisting a king 
de facto shall be attainted of treason by act of Parliament or 
otherwise, is held to be good only as to common prosecutions for 
high treason, but it will not restrain or clog any parliamentary 
attainder. Because the legislature, being in truth the sovereign 
*f power, is always of equal, and always of absolute authority ; it 
acknowledges no superior upon earth, which the prior legislature 
must have been if its ordinances could bind a subsequent Parlia- 
ment. And upon the same principle, Cicero, in his letters to Atti- 
cus, treats with a proper contempt those restraining clauses which 
endeavor to tie up the hands of succeeding legislatures. ' When 

1 " Unlike the decision of a court, a legislative act does not bind a subsequent 
legislature. Each body possesses the same power, and has a right to exercise 
the same discretion. Measures, though often rejected, may receive legislative 
sanction. There is no mode by which a legislative act can be made irrepealable, 
except it assume the form and substance of a contract. If in any line of 
legislation, a permanent character could be given to acts, the most injurious 
consequences would result to the country. Its policy would become fixed and 
unchangeable on great national interests, which might retard, if not destroy, the 
public prosperity. Every legislative body, unless restricted by the constitution, 
may modify or abolish the acts of its predecessors ; whether it would be wise to 
do so, is a matter for legislative discretion." Bloomer v. Stolley, 5 McLean, 
161. See this subject considered in Wall v. State, 23 Ind. 150, and State v. 
Oskins, 28 Ind. 364. In Kellogg v. Oshkosh, 14 Wis. 623, it was held that one 
legislature could not bind a future one to a particular mode of appeal. 
[138] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 127 

you repeal the law itself,' says he, ' you at the same time repeal the 
prohibitory clause which guards against such repeal.' " 1 

Although this reasoning does not in all its particulars apply to 
the American legislatures, the principle applicable in each case is 
the same. There is a modification of the principle, however, by 
an important provision of the Constitution of the United States, 
forbidding the States from passing any laws impairing the obliga- 
tion of contracts. Legislative acts are sometimes in substance 
contracts between the State and the party who is to derive some 
right under them, and they are not the less under the protection 
of the clause quoted because of having assumed this form. Char- 
ters of incorporation, except those of a municipal character, — 
and which, as we have already seen, create mere agencies 
of government, — * are held to be contracts between the [* 127] ^ 
State and the corporators, and not subject to modification 
or change by the act of the State alone, except as may be author- 
ized by the terms of the charters themselves. 2 And it now seems 
to be settled, by the decisions of the Supreme Court of the United 
States, that a State, by contract to that effect, based upon a con- 
sideration, may exempt the property of an individual or corpora- 
tion from taxation for any specified period or even permanently. 
And it is also settled, by the same decisions, that where a charter 
containing an exemption from taxes, or an agreement that the 
taxes shall be to a specified amount only, is accepted by the cor- 
porators, the exemption is presumed to be upon sufficient con- 
sideration, and consequently binding upon the State. 3 

1 1 Bl. Com. 90. 

2 Dartmouth College v. Woodward, 4 Wheat. 518 ; Planters Bank v. Sharp, 
6 How. 301. 

3 Gordon v. Appeal Tax Court, 3 How. 133 ; New Jersey v. Wilson, 7 Cranch, 
164 ; Piqua Branch Bank v. Knoop, 16 How. 369 ; Ohio Life Ins. and Trust Co. 
v. Debolt, 16 How. 416, 432 ; Dodge v. Woolsey, 18 How. 331 ; Mechanics and 
Traders Bank v. Debolt, 18 How. 381 ; Jefferson Branch Bank v. Skelly, 1 Black, 
436. See also Hunsaker v. Wright, 30 Bl. 146 ; Spooner v. McConnell, 1 McLean, 
847 ; post, 280. The right of a State legislature to grant away the right of tax- 
ation, which is one of the essential attributes of sovereignty, has been strenuously 
denied. See Debolt v. Ohio Life Ins. and Trust Co., 1 Ohio, n. s. 563 ; Mechanics 
and Traders Bank v. Debolt, ib. 591; Brewster v. Hough, 10 N. H. 143; Mott 
v. Pennsylvania Railroad Co., 30 Penn. St. 9. And see Thorpe v. Rutland and 
B. Railroad Co., 27 Vt. 146 ; post, 280 and note. In Brick Presbyterian Church 
v. Mayor, &c, of New York, 5 Cow. 538, it was held that a municipal corpora- 
tion had no power, as a party, to make a contract which should control or em- 

[139 ] 



I 



127 CONSTITUTIONAL LIMITATIONS. [CH. V. 



Territorial Limitation to State Legislative Authority. 

The legislative authority of every State must spend its 
[* 128] force * within the territorial limits of the State. The 
legislature of one State cannot make laws by which people 
outside the State must govern their actions, except as they may 
have occasion to resort to the remedies which the State provides, 
or to deal with property situated within the State. It can have no 
authority upon the high seas beyond State lines, because there is 
the point of contact with other nations, and all international ques- 
tions belong to the national government. 1 It cannot provide for the 
punishment as crimes of acts committed beyond the State boundary, 
because such acts, if offences at all, must be offences against the 
sovereignty within whose limits they have been done. 2 But if the 
consequences of an unlawful act committed outside the State have 
reached their ultimate and injurious result within it, it seems 
that the perpetrator may be punished as an offender against such 
State. 3 

barrass its discharge of legislative duties. And see post, p. 206. In Coats v. 
Mayor, &c, of New York, 7 Cow. 585, it was decided that though a municipal 
corporation grant lands for cemetery purposes, and covenant for their quiet 
enjoyment, it will not thereby be estopped afterwards to forbid the use of the 
land, by by-law, for that purpose, when such use becomes or is likely to become a 
nuisance. See also, on the same subject, Morgan v. Smith, 4 Minn. 104; 
Kincaid's Appeal, 66 Penn. St. 411 ; s. c. 5 Am. Rep. 377 ; Hamrick v. Rouse, 
17 Geo. 56, where it was held that the legislature could not bind its successors 
not to remove a county seat; Bass v. Fontleroy, 11 Texas, 698 ; Shaw v. Macon, 
21 Geo. 280; Regents of University v. Williams, 9 G. & J. 390; Mott v. Penn- 
sylvania Railroad Co., 30 Penn. St. 9. In Bank of Republic v. Hamilton, 21 HI. 
53, it was held that, in construing a statute, it will hot be intended that the 
legislature designed to abandon its right as to taxation. This subject is con- 
sidered further, post, pp. 280-284. 

1 1 Bish. Cr. Law, § 120. 

2 State v. Knight, 2 Hayw. 109 ; People v. Merrill, 2 Park. Cr. R. 590 ; 
Adams v. People, 1 N. Y. 173; Tyler v. People, 8 Mich. 320; Morrissey v. 
People, 11 Mich. 327 ; Bromley v. People, 7 Mich. 472 ; State v. Main, 16 Wis. 
398. 

3 In Tyler v. People, 8 Mich. 320, it was held constitutional to punish in 
Michigan a homicide committed by a mortal blow in Canadian waters, from which 
death resulted in the State. In Morrissey v. People, 11 Mich. 327, the court 
was divided on the question whether the State could lawfully provide for the 
punishment of persons who, having committed larceny abroad, brought the stolen 

[140] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. * 128 



Other Limitations of Legislative Authority. 

Besides the limitations of legislative authority to which we have 
referred, others exist which do not seem to call for special remark. 
Some of these are prescribed by constitutions, 1 but 
* others spring from the very nature of free government. [* 129] 
The latter must depend for their enforcement upon legis- 
lative wisdom, discretion, and conscience. The legislature is to 
make laws for the public good, and not for the benefit of individu- 
als. It has control of the public moneys, and should provide for 

property within the State. The power was sustained in People v. Williams, 
24 Mich. 156, where the larceny was in another State. And see State v. Main, 
16 Wis. 398. 

1 The restrictions upon State legislative authority are much more extensive in 
some constitutions than in others. The Constitution of Missouri has the following 
provision: "The General Assembly shall not pass special laws divorcing any 
named parties, or declaring any named person of age, or authorizing any named 
minor to sell, lease, or encumber his or her property, or providing for the sale 
of the real estate of any named minor or other person laboring under legal 
disability, by any executor, administrator, guardian, trustee, or other person, or 
establishing, locating, altering the course, or effecting the construction of roads, 
or the building or repairing of bridges, or establishing, altering, or vacating any 
street, avenue, or alley in any city or town, or extending the time for the assess- 
ment or collection of taxes, or otherwise relieving any assessor or collector of 
taxes from the due performance of his official duties, or giving effect to informal 
or invalid wills or deeds, or legalizing, except as against the State, the unauthor- 
ized or invalid acts of any officer, or granting to any individual or company the 
right to lay down railroad tracks in the streets of any city or town, or exempting 
any property of any named person or corporation from taxation. The General 
Assembly shall pass no special law for any case for which provision can be made 
by a general law, but shall pass general laws providing, so far as it may deem 
necessary, for the cases enumerated in this section, and for all other cases where 
a general law can be made applicable." Constitution of Missouri, art. 4, § 27. 
We should suppose that so stringent a provision would, in some of these cases, 
lead to the passage of general laws of doubtful utility in order to remedy the 
hardships of particular cases. As to when a general law can be made appli- 
cable, see Thomas v. Board of Commissioners, 5 Ind. 4; State v. Squires, 26 
Iowa, 340; Johnson v. Railroad Co., 23 111. 202. In State v. Hitchcock, 1 Kan- 
sas, 178, it was held that the constitutional provision, that " in all cases where a 
general law can be made applicable, no special law shall be enacted," left a dis- 
cretion with the legislature to determine the cases in which special laws should 
be passed. See to the same effect Gentile v. State, 29 Ind. 409, and Marks v. 
Trustees of Pardue University, 37 Ind. 163, overruling Thomas v. Board of 
Commissioners, supra. To the same effect is State v. County Court of Boone, 

[141] 



* 129 CONSTITUTIONAL LIMITATIONS. [CH. V. 

disbursing them only for public purposes. Taxes should only 
be levied for those purposes which properly constitute a public 
burden. But what is for the public good, and what are public 
purposes, and what does properly constitute a public burden, are 
questions which the legislature must decide upon its own judgment, 
and in respect to which it is vested with a large discretion which 
cannot be controlled by the courts, except, perhaps, where its action 
is clearly evasive, and where, under pretence of a lawful authority, 
it has assumed to exercise one that is unlawful. Where the power 
which is exercised is legislative in its character, the courts can 
enforce only those limitations which the constitution imposes, and 
not those implied restrictions which, resting in theory only, the 
people have been satisfied to leave to the judgment, patriotism, and 
sense of justice of their representatives. 1 

50 Mo. 317. Compare Hess v. Pegg, 7 Nev. 23; Darling v. Rogers, 7 Kan. 
592 ; Ex parte Pritz, 9 Iowa, 30. Where the legislature is forbidden to pass 
special or local laws regulating county or township business, a special act allow- 
ing and ordering payment of a particular claim is void, even though the claim, 
being merely an equitable one, cannot be audited by any existing board. Wil- 
liams v. Bidleman, 7 Nev. 68. See Darling v. Rogers, 7 Kan. 592. An act 
creating a criminal court for a particular county is not in coullict with the consti- 
tutional prohibition of special legislation. Eitel v. State, 33 Ind. 201. See 
Matter of Boyle, 9 Wis. 264. A constitutional provision that requires all laws 
of a general nature to have uniform operation throughout the State is complied 
with in a statute applicable to all cities of a certain class having less than one 
hundred thousand inhabitants, though in fact there be but one city in the State 
of that class. Welker v. Potter, 18 Ohio, n. s. 85. See, further, Bourland v. 
Hildreth, 26 Cal. 162 ; Brooks v. Hyde, 37 Cal. 366 ; McAurich v. Mississippi, 
&c, R.R. Co., 20 Iowa, 338; Rice v. State, 3 Kansas, 141; Jackson v. Shawl, 
29 Cal. 267 ; Gentile v. State, 29 Ind. 409 ; State v. Parkinson, 5 Nev. 15 ; 
Ensworth v. Albin, 46 Mo. 450. 

1 State v. McCann, 21 Ohio St. 211,212. 

[ 142 J 



CH. VI.] OP THE ENACTMENT OP LAWS. * 130 



* CHAPTER VI. [*130] 

OF THE ENACTMENT OF LAWS. 

When the supreme power of a country is wielded by a single 
man, or by a single body of men, few questions can arise in the 
courts concerning the manner of its exercise, and any discussion of 
rules by which it is to be governed, in the enactment of laws, can be 
of very little practical value. For whenever the sovereign power 
expresses its will that a certain rule shall be established, that 
expression must be conclusive, whether such forms have been ob- 
served in making the declaration as are customary and proper or 
not. We may query whether the will has been declared ; we may 
question and cross-question the words employed, to ascertain the 
real sense that they express ; we may doubt and hesitate as to the 
intent ; but when discovered, it must govern, and it is idle to talk 
of forms that should have surrounded the expression, but do not. 
But when the legislative power of a State is to be exercised by a 
department composed of two branches, or, as in most of the 
American States, of three branches, and these brandies have their 
several duties marked out and prescribed by the law to which they 
owe their origin, and which provides for the exercise of their 
powers in certain modes and under certain forms, there are other 
questions to arise than those of the mere intent of the law-makers, 
and sometimes forms become of the last importance. For in such 
case not only is it important that the will of the law-makers be 
clearly expressed, but it is also essential that it be expressed in 
due form of law ; since nothing becomes law simply and solely 
because men who possess the legislative power will that it shall be, 
unless they express their determination to that effect, in the mode 
pointed out by the instrument which invests them with the power, 
and under all the forms which that instrument has rendered 
essential. And if, when the constitution was adopted, there were 
known and settled rules and usages, forming a part of the law of 
the country, in reference to which the constitution has evidently 
been framed, and these rules and usages required the observance of 

[143] 



* 130 CONSTITUTIONAL LIMITATIONS. [CH. VI. 

particular forms, the constitution itself must also be understood as 
requiring them, because in assuming their existence, and 
[* 131] being * framed with reference to them, it has in effect 
adopted them as a part of itself, as much as if they were 
expressly incorporated in its provisions. Where, for an instance, 
the legislative power is to be exercised by two houses, and by 
settled and well-understood parliamentary law, these two houses 
are to hold separate sessions for their deliberations, and the deter- 
mination of the one upon a proposed law is to be submitted to the 
separate determination of the other, the constitution, in providing 
for two houses, has evidently spoken in reference to this settled 
custom, incorporating it as a rule of constitutional interpretation ; 
so that it would require no prohibitory clause to forbid the two 
houses from combining in one, and jointly enacting laws by the 
vote of a majority of all. All those rules which are of the essentials 
of law-making must be observed and followed ; and it is only the 
customary rules of order and routine, such as in every deliberative 
body are always understood to be under its control, and subject to 
constant change at its will, that the constitution can be understood 
to have left as matters of discretion, to be established, modified, or 
abolished by the bodies for whose government in non-essential 
matters they exist. 

Of the tivo Houses of the Legislature. 1 

In the enactment of laws the two houses of the legislature are 
of equal importance, dignity, and power, and the steps which result 
in laws may originate indifferently in either. This is the general 
rule ; but as one body is more numerous than the other and more 
directly represents the people, and in many of the States, is 
renewed by more frequent elections, the power to originate all money 
bills, or bills for the raising of revenue, is left exclusively, by the 
constitutions of some of the States, with this body, in accordance 

1 The wisdom of a division of the legislative department has been demon- 
strated by the leading writers on constitutional law, as well as by general expe- 
rience. See De Lolme, Const, of England, b. 2, c. 3 ; Federalist, No. 22; 1 
Kent, 208 ; Story on Const. §§ 545-570. The early experiments in Pennsylvania 
and Georgia, based on Franklin's views, for which see his Works, Vol. V. p. 165, 
were the only ones made by any of the original States with a single house. The 
first Constitution of Vermont also provided for a single legislative body. 

[144] 



CH. VI.] OF THE ENACTMENT OP LAWS. * 131 

with the custom in England which does not permit bills of this 
character to originate with the House of Lords. 1 To these 
* bills, however, the other house may propose alterations, [*132] 
and they require the assent of that house to their passage, 
the same as other bills. The time for the meeting of the legisla- 
ture will be such time as is fixed by the constitution or by statute ; 
but it may be called together by the executive in special session as 
the constitution may prescribe, and the two houses may also 
adjourn any general session to a time fixed by them for the holding 
of a special session, if an agreement to that effect can be arrived 
at ; and if not, power is conferred by a majority of the constitutions 
upon the executive to prorogue and adjourn them. And if the 
executive in any case undertake to exercise this power to prorogue 
and adjourn, on the assumption that a disagreement exists between 
the two houses which warrants his interference, and his action is 
acquiesced in by those bodies, who thereupon cease to hold their 
regular sessions, the legislature must be held in law to have 
adjourned, and no inquiry can be entered upon as to the rightful- 
ness of the governor's assumption that such a disagreement 
existed. 2 

1 There are provisions in the Constitutions of Massachusetts, Delaware, Min- 
nesota, Mississippi, New Hampshire, New Jersey, Pennsylvania, South Carolina, 
Vermont, Indiana, Oregon, Kentucky, Louisiana, Alabama, Arkansas, Georgia, 
Virginia, and Maine, requiring revenue bills to originate in the more popular 
branch of the legislature, but allowing the Senate the power of amendment usual 
in other cases. During the second session of the -forty-first Congress, the House 
of Representatives by their vote denied the right of the Senate under the Con- 
stitution to originate a bill repealing a law imposing taxes; but the Senate did 
not assent to this conclusion. In England the Lords are not allowed to amend 
money bills, and by resolutions of oth and 6th July, 1860, the Commons deny 
their right even to reject them. 

2 This question became important and was passed upon in People v. Hatch, 
33 111. 9. The Senate had passed a resolution for an adjournment of the session 
sine die on a day named, which was amended by the House by fixing a different 
day. The Senate refused to concur, and the House then passed a resolution 
expressing a desire to recede from its action in amending the resolution, and 
requesting a return of the resolution by the Senate. While matters sti>od thus, 
the governor, assuming that such a disagreement existed as empowered him to 
interfere, sent in his proclamation, declaring the legislature adjourned to a day 
named, and which was at the very end of the official term of the members. The 
message created excitement ; it does not seem to have been at once acquiesced 
in, and a protest against the governor's authority was entered upon the journal ; 
but for eleven days in one house and twelve in the other no entries were made 

io [ 145 ] 



* 133 CONSTITUTIONAL LIMITATIONS. [CH. VI. 

[* 133] * There are" certain matters which each house deter- 
mines for itself, and in respect to which its decision is 
conclusive. It chooses its own officers, except where, by consti- 
tution or statute, it is otherwise provided ; it determines its own 
rules of proceeding, it decides upon the election and qualification 
of its own members. 1 These powers it is obviously proper should 
rest with the body immediately interested, as essential to enable it 
to enter upon and proceed with its legislative functions, without 
liability to interruption and confusion. In determining questions 
concerning contested seats, the house will exercise judicial power, 
but generally in accordance with a course of practice which has 
sprung from precedents in similar cases, and no other authority is 
at liberty to interfere. 

Each house has also the power to punish members for disor- 
derly behavior, and other contempts of its authority, as well as to 
expel a member for any cause which seems to the body to render 
it unfit that he continue to occupy one of its seats. This power 
is generally enumerated in the constitution among those which 
the two houses may exercise, but it need not be specified in that 
instrument, since it would exist whether expressly conferred or 
not. It is " a necessary and incidental power, to enable the house 
to perforin its high functions, and is necessary to the safety of 

upon their journals, and it was unquestionable that practically they had acqui- 
esced in the action of the governor, and adjourned. At the expiration of the 
twelve days, a portion of the members came together again, and it was claimed 
by them that the message of the governor was without authority, and the two 
houses must be considered as having been, in point of law, in session during the 
intervening period, and that consequently any bills which had before been passed 
by them and sent to the governor for his approval, and which he had not returned 
within ten days, Sundays excepted, had become laws under the constitution. 
The Supreme Court held that, as the two houses had practically acquiesced in 
the action of the governor, the session had come to an end, and that the mem- 
bers had no power to reconvene on their own motion, as had been attempted. 
The case is a very full and valuable one on several points pertaining to legisla- 
tive proceedings and authority. 

1 In People v. Mahaney, 13 Mich. 481, it was held that the correctness of a 
decision by one of the houses, that certain persons had been chosen members, 
could not be inquired into by the courts. In that case a law was assailed as void, 
on the ground that a portion of the members who voted for it, and without whose 
votes it would not have had the requisite majority, had been given their seats in 
the House in defiance of law, and to the exclusion of others who had a majority 
of legal votes. See the same principle in State v. Jarrett, 17 Md. 309. See 
also Lamb v. Lynd, 44 Penn. St. 336. 

[146] 



CH. VI.] OF THE ENACTMENT OP LAWS. * 133 

the State. It is a power of protection. A member may be phys- 
ically, mentally, or morally wholly unfit ; he may be affected with a 
contagious disease, or insane, or noisy, violent, and disorderly, or in 
the habit of using profane, obscene, and abusive language." And, 
" independently of parliamentary customs and usages, our legisla- 
tive houses have the power to protect themselves by the punish- 
ment and expulsion of a member " ; and the courts cannot inquire 
into the justice of the decision, or even so much as examine the 
proceedings to see whether opportunity for defence was furnished 
or not. 1 

* Each house may also punish contempts of its authority [* 134] 
by other persons, without express authority from the con- 
stitution therefor ; 2 but where imprisonment is imposed as a pun- 
ishment, it must terminate with the final adjournment of the house, 
and if the prisoner be not then discharged by its order, he may be 
released on habeas corpus? 

By common parliamentary law, the members of the legislature 
are privileged from arrest on civil process during the session of 
that body, and for a reasonable time before and after to enable 
them to go to and return from the same. ' By the constitutions of 
some of the States this privilege has been enlarged, so as to 
exempt the persons of legislators from any service of civil process, 4 
and in others their estates are exempt from attachment for some 
prescribed period. 5 For any arrest contrary to the parliamentary 

1 Hiss v. Bartlett, 3 Gray, 468. And see Anderson v. Dunn. 6 Wheat. 204. 

2 Anderson v. Dunn, G Wheat. 204; Burdett v. Abbott, 14 East, 1; Stock- 
dale v. Hansard, 9 Ad. & El. 231; Burnham v. Morissey, 14 Gray, 226; State 
v. Matthews, 37 N. H. 450. 

8 Jefferson's Manual, § 18 ; Prichard's Case, 1 Lev. 165. 

4 " Senators and representatives shall, in all cases except treason, felony, or 
breach of the peace, be privileged from arrest. They shall not be subject to 
any civil process daring the session of the legislature, or for fifteen days next 
before the commencement and after the termination of each session." Const, of 
Mich. art. 4, § 7. The same exemption from civil process is found in the Con- 
stitutions of Kansas, Nebraska, Alabama, Arkansas, California, Missouri, Mis- 
sissippi, Wisconsin, Indiana, and Oregon: Exemption from arrest is not vio- 
lated by the service of citations or declarations in civil cases. Gentry v. Griffith, 
27 Texas, 461 ; Case v. Rorabacker, 15 Mich. 537. 

5 The Constitution of Rhode Island provides that "the person of every 
member of the General Assembly shall be exempt from arrest, and his 
estate from attachment, in any civil action, during the session of the General 
Assembly, and two days before the commencement and two days after the 

[147] 



* 134 CONSTITUTIONAL LIMITATIONS. [CH. VI. 

law or to these provisions, the house of which the person arrested 
is a member may give summary relief by ordering his discharge, 
and if the order is not complied with, by punishing the persons 
concerned in the arrest as for a contempt of its authority. The 
remedy of the member, however, is not confined to this mode of 
relief. His privilege is not the privilege of the house mereJy, but 
of the people, and is conferred to enable him to discharge the trust 
confided to him by his constituents ; 1 and if the house neglect to 
interfere the court from which the process issued should set it 
aside on the facts being represented, and any court or officer 
having authority to issue writs of habeas corpus may also 
[* 135] * inquire into the case, and release the party from the un- 
lawful imprisonment. 2 

Each house must also be allowed to proceed in its own way in 
the collection of such information as may seem important to a 
proper discharge of its functions, and whenever it is deemed 
desirable that witnesses should be examined, the power and 
authority to do so is very properly referred to a committee, with 
any such powers short of final legislative or judicial action as 
may seem necessary or expedient in the particular case. Such a 
committee has no authority to sit during a recess of the house 
which has appointed it, without its permission to that effect ; but 
the house is at liberty to confer such authority if it see fit. 3 A 
refusal to appear or to testify before such committee, or to pro- 
duce books or papers, would be a contempt of the house; 4 but 
the committee cannot punish for contempts ; it can only report 
the conduct of the offending party to the house for its action. 
The power of the committee will terminate with the final dissolu- 
tion of the house appointing it. 

Each house keeps a journal of its proceedings, which is a public 

termination thereof, and all process served contrary hereto shall be void." 
Art. 4, § 5. 

1 Coffin v. Coffin, 4 Mass. 27. 

2 On this subject, dishing on Law and Practice of Parliamentary Assemblies, 
§§ 546-597, will be consulted with profit. 

3 Branham v. Lange, 16 Ind. 497; Marshall v. Harwood, 7 Md. 466. See 
also parliamentary cases, 5 Grey, 374 ; 9 Grey, 350 ; 1 Chandler, 50. 

4 Burnham v. Morrissey, 14 Gray, 226. But the privilege of a witness to be 
exempt from a compulsory disclosure of his own criminal conduct is the same 
when examined by a legislative body or committee as when sworn in court. 
Emery 's Case, 107 Mass. 172. 

[-148] 



CH. VI.] OF THE ENACTMENT OF LAWS. * 135 

record, and of which the courts are at liberty to take judicial 
notice. 1 If it should appear from these journals that any act did 
not receive the requisite majority, or that in respect to it the legis- 
lature did not follow any requirement of the constitution, or that 
in any other respect the act was not constitutionally adopted, 
the courts may act upon this evidence, and adjudge the statute 
void. 2 But whenever it is acting in the apparent performance 
of legal functions, every reasonable presumption is to be made 
in favor of the action of a legislative body ; it will not be pre- 
sumed in any case, from the mere silence of the journals, that 
either house has exceeded its authority, or disregarded a 
* constitutional requirement in the passage of legislative [* 136] 
acts, unless where the constitution has expressly required 
the journals to show the action taken, as, for instance, where it 
requires the yeas and nays to be entered. 3 

The law also seeks to cast its protection around legislative ses- 
sions, and to shield them against corrupt and improper influences, 
by making void all contracts which have for their object to influ- 
ence legislation in any other manner than by such open and pub- 
lic presentation of facts and arguments and appeals to reason as 
are recognized as proper and legitimate with all public bodies. 
While counsel may be properly employed to present the reasons 
in favor of any public measure to the body authorized to pass 
upon it, or to any of its committees empowered to collect facts 

! Spangler v. Jacoby, 14 111. 297 ; Miller v. State, 3 Ohio, N. s. 475 ; People 
v. Mabaney, 13 Mich. 481 ; Soutbwark Bank v. Commonwealth, 2 Penn. St. 44(3 ; 
McCulloch v. State, 11 Ind. 430; State v. Moffit, 5 Ohio, 358; Turley v. Logan 
Co. 17 111. 151; People v. Supervisors of Chenango, 8 N. Y. 317; Jones v. 
Hutchinson, 43 111. 721; Fordyce v. Goodman, 20 Ohio, N. s. 1. 

2 See cases cited in preceding note. Also Prescott v. Trustees of 111. & Mich. 
Canal, 19 111. 324. The case of Sherman v. Story, 30 Cat. 253, appears to be 
contra. And see Louisiana State Lottery Co. v. Richoux, 23 La. An. 458 ; s. c. 
8 Am. Rep. 600. A remarkable case recently came under judgment in South 
Carolina. An act to simplify practice passed the two houses of the legislature. 
By the previous law the courts for the county of Barnwell were held at Black- 
ville, and the new act contained a provision continuing them at that place. As 
presented to and signed by the governor, however, it substituted Barnwell for 
Blackville. Held that the provision thus changed was void, — the journals show- 
ing the change, — and that the courts must still be held at Blackville. State v. 
Piatt, 2 S. C. (n. s.) 150. 

3 Miller v. State, 3 Ohio, n. s. 475 ; McCulloch v. State, 11 Ind. 424 ; Super- 
visors v. People, 25 111. 181. 

[149] 



* 136 CONSTITUTIONAL LIMITATIONS. [CH. VI. 

and hear arguments, and parties interested may lawfully contract 
to pay for this service, yet to secretly approach the members of 
such a body with a view to influence their action at a time and 
in a manner that do not allow the presentation of opposite views, 
is improper and unfair to the opposing interest ; and a contract 
to pay for this irregular and improper service would not be en- 
forced by the law. 1 

1 This whole subject was very fully considered in the case of Frost v. Inhabi- 
tants of Belmont, 6 Allen, 152, which was a bill filed to restrain the payment by 
the town of demands to the amount of nearly $9000, which the town had voted 
to pay as expenses in obtaining their act of incorporation. By the court, Chap- 
man, J.: "It is to be regretted that any persons should have attempted to 
procure an act of legislation in this Commonwealth, by such means as some of 
these items indicate. By the regular course of legislation, organs are provided 
through which any parties may fairly and openly approach the legislature, and 
be heard with proofs and arguments respecting any legislative acts which they 
may be interested in, whether public or private. These organs are the various 
committees appointed to consider and report upon the matters to be acted upon 
by the whole body. When private interests are to be affected, notice is given 
of the hearings before these committees ; and thus opportunity is given to 
adverse parties to meet face to face and obtain a fair and open hearing. And 
though these committees properly dispense with many of the rules which regu- 
late hearings before judicial tribunals, yet common fairness requires that neither 
party shall be permitted to have secret consultations, and exercise secret influ- 
ences that are kept from the knowledge of the other party. The business of 
' lobby members ' is not to go fairly and openly before the committees, and present 
statements, proofs, and arguments that the other side has an opportunity to meet 
and refute, if they are wrong, but to go secretly to the members and ply them 
with statements and arguments that the other side cannot openly meet, however 
erroneous they may be, and to bring illegitimate influences to bear upon them. 
If the ' lobby member ' is selected because of his political or personal influence, 
it aggravates the wrong. If his business is to unite various interests by means 
of projects that are called ' log rolling,' it is still worse. The practice of pro- 
curing members of the legislature to act under the influence of what they have 
eaten and drank at houses of entertainment tends to render those who yield to 
such influences wholly unfit to act in such cases. They are disqualified from 
acting fairly towards interested parties or towards the public. The tendency 
and object of these influences are to obtain by corruption what it is supposed 
cannot be obtained fairly. 

" It is a well-established principle, that all contracts which are opposed to 
public policy, and to open, upright, and fair dealing, are illegal and void. The 
principle was fully discussed in Fuller v. Dame, 18 Pick. 472. In several other 
States it has been applied to cases quite analogous to the present case. 

"In Pingrey v. Washburn, 1 Aiken, 261, it was held in Vermont that an 
agreement, on the part of a corporation, to grant to individuals certain privileges 

[150] 



CH. VI.] OP THE ENACTMENT OP LAWS. * 137 



* The Introduction and Passage of Bills. [* 137] 

Any member may introduce a bill in the house to which he 
belongs, in accordance with its rules ; and this he may do 

in consideration that they would withdraw their opposition to the passage of a 
legislative act touching the interests of the corporation, is against sound policy, 
prejudicial to just and correct legislation, and void. In Gulick v. Ward, 5 Halst. 
87, it was decided in New Jersey that a contract which contravenes an act of 
Congress, and tends to defraud the United States, is void. A. had agreed to 
give B. $100, on condition that B. would forbear to propose or offer himself 
to the Postmaster-General to carry the mail on a certain mail route, and it was 
held that the contract was against public policy and void. The general principle 
as to contracts contravening public policy was discussed in that case at much 
length. In Wood v. McCann, 6 Dana, 366, the defendant had employed the 
plaintiff to assist him in obtaining a legislative act in Kentucky legalizing his 
divorce from a former wife, and his marriage with his present wife. The court 
say : ' A lawyer may be entitled to compensation for writing a petition, or even 
for making a public argument before the legislature or a committee thereof; 
but the law should not hold him or any other person to a recompense for exer- 
cising any personal influence in any way, in any act of legislation. It is certainly 
important to just and wise legislation, and therefore to the most essential interest 
of the public, that the legislature should be perfectly free from any extraneous 
influence which may either corrupt or deceive the members, or any of them.' 

" In Clippinger v. Hepbaugh, 5 Watts & S. 315, it was decided in Pennsyl- 
vania that a contract to procure or endeavor to procure the passage of an act of 
the legislature, by using personal influence with the members, or by any sinister 
means, was void, as being inconsistent with public policy and the integrity of 
our political institutions. And an agreement for a contingent fee to be paid on 
the passage of a legislative act was held to be illegal and void, because it would 
be a strong incentive to the exercise of personal and sinister influences to effect 
the object. 

" The subject has been twice adjudicated upon in New York. In Harris v. 
Roof, 10 Barb. 489, the Supreme Court held that one could not recover for ser- 
vices performed in going to see individual members of the house, to get them to 
aid in voting for a private claim, the services not being performed before the 
house as a body, nor before its authorized committees. In Sedgwick v. Stanton, 
4 Kernan, 289, the Court of Appeals held the same doctrine, and stated its proper 
limits. Selden, J., makes the following comments on the case of Harris v. Roof: 
' Now the court did not mean by this decision to hold that one who has a claim 
against the State may not employ competent persons to aid him in properly pre- 
senting such claim to the legislature, and in supporting it with the necessary 
proofs and arguments. Mr. Justice Hand, who delivered the opinion of the court, 
very justly distinguishes between services of the nature of those rendered in that 
case, and the procuring and preparing the necessary documents in support of a 
claim, or acting as counsel before the legislature or some committee appointed 

[151] 



* 137 CONSTITUTIONAL LIMITATIONS. [CH. VI. 

[* 138] at any * time when the house is in session, unless the 
constitution, the law, or the rules of the house forbid. 
[* 139] The Constitution of Michigan * provides that no new bill 
shall be introduced into either house of the legislature 
after the first fifty days of the session shall have expired ; 1 and the 
Constitution of Maryland provides that no bill shall originate in 
either house within the last ten days of the session. 2 The purpose 
of these clauses is to prevent hasty and improvident legislation, 
and to compel, so far as any previous law can accomplish that 

by that body. Persons may, no doubt, be employed to conduct an application to 
the legislature, as well as to conduct a suit at law ; and may contract for and re- 
ceive pay for their services in preparing documents, collecting evidence, making 
statements of facts, or preparing and making oral or written arguments, provided 
all these are used or designed to be used before the legislature or some committee 
thereof as a body ; but they cannot, with propriety, be employed to exert their 
personal influence with individual members, or to labor in any form privately with 
such members out of the legislative halls. Whatever is laid before the legislature 
in writing, or spoken openly or publicly in its presence or that of a committee, if 
false in fact, may be disproved, or if wrong in argument may be refuted ; but 
that which is whispered into the private ear of individual members is frequently 
beyond the reach of correction. The point of objection in this class of cases then 
is, the personal and private nature of the services to be rendered.' 

" In Fuller v. Dame, cited above, Shaw, Ch. J., recognizes the well-established 
right to contract and pay for professional services when the promisee is to act as 
attorney and counsel, but remarks that ' the fact appearing that persons do so act 
prevents any injurious effects from such proceeding. Such counsel is considered 
as standing in the place of his principal, and his arguments and representations 
are weighed and considered accordingly.' He also admits the right of disinter- 
ested persons to volunteer advice ; as when a person is about to make a will, one 
may represent to him the propriety and expediency of making a bequest to a par- 
ticular person ; and so may one volunteer advice to another to marry another 
person ; but a promise to pay for such service is void. 

" Applying the principles stated in these cases to the bills which the town voted 
to pay, it is manifest that some of the money was expended for objects that are 
contrary to public policy, and of a most reprehensible character, and which could 
not, therefore, form a legal consideration for a contract:" 

See further a full discussion of the same subject, and reaching the same con- 
clusion, by Mr. Justice Orier, in Marshall v. Baltimore & Ohio R.R. Co., 16 How. 
314. See also Hatzfield v. Gulden, 7 Watts, 152; Frankfort v. Winterport, 54 
Me. 250. A contract to assist by money and influence to secure the election of 
a candidate to a public office in consideration of a share of its emoluments, in the 
event of election, is void as opposed to public policy, and if voluntarily rescinded 
by the parties a recovery cannot be had of the moneys advanced under it. Mar- 
tin v. Wade, 37 Cal. 168. 

1 Art, 4, § 28. 2 Art. 3, § 2G. 

[152] 



CH. VI.] OP THE ENACTMENT OF LAWS. * 139 

result, the careful examination of proposed laws, or at least the 
affording of opportunity for that purpose ; which will not always be 
done when bills may be introduced up to the very hour of adjourn- 
ment, and, with the concurrence of the proper majority, put im- 
mediately upon their passage. 1 

For the same reason it is required by the constitutions of several 
of the States, that no bill shall have the force of law until on three 
several days it be read in each house, and free discussion allowed 
thereon ; unless, in case of urgency, four-fifths or some other 
specified majority of the house shall deem it expedient to dispense 
with this rule. The journals which each house keeps of its pro- 
ceedings ought to show whether this rule is complied with or not ; 
but in case they do not, the passage in the manner provided by 
the constitution must be presumed in accordance with the gen- 
eral rule which presumes the proper discharge of official duty. 2 

1 A practice has sprung up of evading these constitutional provisions by intro- 
ducing a new bill after the time has expired when it may constitutionally be 
done, as an amendment to some pending bill, the whole of which, except the 
enacting clause, is struck out to make way for it. Thus, the member who thinks 
he may possibly have occasion for the introduction of a new bill after the consti- 
tutional period has expired, takes care to introduce sham bills in due season 
which he can use as stocks to graft upon, and which he uses irrespective of their 
character or contents. The sham bill is perhaps a bill to incorporate the city of 
Siam. One of the member's constituents applies to him for legislative permission 
to construct a dam across the Wild Cat River. Forthwith, by amendment, the 
bill entitled a bill to incorporate the city of Siam has all after the enacting clause 
stricken out, and it is made to provide, as its sole object, that John Doe may con- 
struct a dam across the Wild Cat. With this title and in this form it is passed ; 
but the house then considerately amends the title to correspond with the purpose 
of the bill, and the law is passed, and the constitution at the same time saved ! 
This dodge is so transparent, and so clearly in violation of the constitution, and 
the evidence at the same time is so fully spread upon the record, that it is a matter 
of surprise to find it so often resorted to. 

2 Supervisors of Schuyler Co. v. People, 25 111. 181; Miller v. State, 3 Ohio, 
N. s. 480. In People v. Starne, 35 111. 121, it is said the courts' should not 
enforce a legislative act unless there is record evidence, from the journals of the 
two houses, that every material requirement of the constitution has been satisfied. 
The clause in the Constitution of Ohio is: " Every bill shall be fully and dis- 
tinctly read on three different days, unless, in case of urgency, three-fourths of 
the house in which it shall be pending shall dispense with this rule " ; and in Mil- 
ler v. State, 3 Ohio, n. s. 481, and Pirn v. Nicholson, 6 Ohio, N. s. 178, this 
provision was held to be merely directory. The distinctness with which any bill 
must be read cannot possibly be defined by any law ; and it must always, from 
the necessity of the case, rest with the house to determine finally whether in this 

[153] 



* 140 CONSTITUTIONAL LIMITATIONS. [CH. VI. 

[* 140] * As to what shall constitute a reading of a bill, it seems 
to be held sufficient to read the written instrument that 
is adopted by the two houses ; and if any thing else becomes law 
in consequence of its passage, and by reason of being referred to 
in it, it is nevertheless not essential that it be read with the reading 
of the bill. 1 Thus, a statute which incorporated a military company 
by reference to its constitution and by-laws, was held valid notwith- 
standing the constitution and by-laws, which would acquire the 
force of law by its passage, were not read in the two houses as a 
part of it. 2 But there cannot be many cases, we should suppose, 
to which this ruling would be applicable. 

It is also provided in the constitutions of some of the States that, 
on the final passage of every bill the yeas and nays shall be entered 
on the journal. Such a provision is designed to serve an important 
purpose in compelling each member present to assume as well as 
to feel his due share of responsibility in legislation ; and also in 
furnishing definite and conclusive evidence whether the bill has 
been passed by the requisite majority or not. " The constitution 
prescribes this as the test by which to determine whether the 
requisite number of members vote in the affirmative. The office of 
the journal is to record the proceedings of the house, and authen- 
ticate and preserve the same. It must appear on the face of 
the journal that the bill passed by a constitutional majority. 
These directions are all clearly imperative. They are 
[* 141] * expressly enjoined by the fundamental law, and cannot 
be dispensed with by the legislature." 3 

particular the constitution has been complied with or not ; but the rule respect- 
ing three several readings on different days is specific, and capable of being 
precisely complied with, and we do not see how, even under the rules applied to 
statutes, it can be regarded as directory merely, provided it has a purpose beyond 
the mere regular and orderly transaction of business. That it has such a pur- 
pose, that it is designed to prevent hasty and improvident legislation, and is 
therefore not a mere rule of order, but one of protection to the public interests 
and to the citizens at large, is very clear ; and independent of the question whether 
definite constitutional principles can be dispensed with in any case on the ground 
of their being merely directory, we cannot see how this can be treated as any 
thing but mandatory. See People v. Campbell, 3 Gilm. 466 ; McCulloch v. State, 
11 Ind. 424. 

1 Dew v. Cunningham, 28 Ala. 466. 

2 Bibb County Loan Association v. Richards, 21 Geo. 592. 

3 Spangler v. Jacoby, 14 111. 297 ; Supervisors of Schuyler Co. v. People, 25 
111. 183. There have been cases, as we happen to know, in which several bills 

[154] 



CH. VI.] OF THE ENACTMENT OP LAWS. * 141 

For the vote required in the passage of any particular law, 
the reader is referred to the constitution of his State. A sim- 
ple majority of a quorum is sufficient, unless the constitution 
establishes some other rule ; and where, by the constitution, a two- 
thirds or three-fourths vote is made essential to the passage of any 
particular class of bills, two-thirds or three-fourths of a quorum 
will be understood, unless the terms employed clearly indicate 
that this proportion of all the members, or of all those elected, is 
intended. 1 

The Title of a Statute. 

The title of an act was formerly considered no part of it ; and 
although it might be looked to as a guide to the intent of the law- 
makers when the body of the statute appeared to be in any respect 
ambiguous or doubtful, 2 yet it could not enlarge or restrain the 
provisions of the act itself, 3 and the latter might therefore be 
good when that and the title were in conflict. The reason for this 
was that anciently titles were not prefixed at all, and when after- 
wards they came to be introduced, they were usually prepared by 
the clerk of the house in which the bill first passed, and attracted 
but little attention from the members. They indicated the clerk's 
understanding of the contents or purpose of the bills, rather than 
that of the house ; and they therefore were justly regarded as 

have been put on their passage together, the yeas and nays being once called for 
them all, though the journal is made to state falsely a separate vote on each. We 
need hardly say that this is a manifest violation of the constitution, which requires 
separate action in every case, and that when resorted to, it is usually for the pur- 
pose of avoiding another provision of the constitution which seeks to preclude 
" log-rolling" legislation, by forbidding the incorporation of distinct measures 
in one and the same statute. 

1 Southworth v. Palmyra & Jacksonburg Railroad Co., 2 Mich. 287 ; State v. 
McBride, 4 Mo. 303. By most of the constitutions either all the laws, or laws 
on some particular subjects, are required to be adopted by a majority vote or 
some other proportion of " all the members elected," or of " the whole repre- 
sentation." These and similar phrases require all the members to be taken into 
account whether present or not. Where a majority of all the members elected is 
required in the passage of a law, an ineligible person is not on that account to be 
excluded in the count. Satterlee v. San Francisco, 22 Cal. 314. 

2 United States v. Palmer, 3 Wheat. 610 ; Burgett v. Burgett, 1 Ohio, 480 ; 
Eastman v. McAlpin, 1 Kelley, 157 ; Cohen v. Barrett, 5 Call, 195. See Dwarris 
on Statutes, 502. 

3 Hadden v. The Collector, 5 Wal. 107. 

[155] 



* 141 CONSTITUTIONAL LIMITATIONS. [CH. VI. 

furnishing very little insight into the legislative intention. Titles 
to legislative acts, however, have recently, in some States, come to 
possess very great importance, by reason of constitutional pro- 
visions, which not only require that they shall correctly indicate 
the purpose of the law, but which absolutely make the title to 
control and exclude every thing from effect and operation as law 
which is incorporated in the body of the act but is not within the 
purpose indicated by the title. These provisions are given in the 
note, and it will readily be perceived that they make a very great 

change in the law. 1 
[* 142] * In considering these provisions it is important to re- 
gard, — 
1. The evils designed to be remedied. The Constitution of New 
Jersey refers to these as " the improper influences which may 
result from intermixing in one and the same act such things as 
have no proper relation to each other." In the language of the 

1 The Constitutions of Minnesota, Kansas, Maryland, Kentucky, Nebraska, 
Ohio, and Pennsylvania provide that " no law shall embrace more than one sub- 
ject, which shall be expressed in its title." Those of Michigan, New Jersey, 
Louisiana, and Texas are similar, substituting the word object for subject. The 
Constitutions of South Carolina, Alabama, Tennessee, Arkansas, and California 
contain similar provisions. The Constitution of New Jersey provides that, " to 
avoid improper influences which may result from intermixing in one and the same 
act such things as have no proper re ation to each other, every law shall embrace 
but one object, and that shall be expressed in the title." The Constitution of 
Missouri contains a similar provision, with the addition, that, "if any subject 
embraced in an act be not expressed in the title, such act shall be void only as to 
so much thereof as is not so expressed." The Constitutions of Indiana, Oregon, 
and Iowa provide that " every act shall embrace but one subject, and matters prop- 
erly connected therewith, which subject shall be expressed in the title. But if any 
subject shall be embraced in an act which shall not be expressed in the title, such 
act shall be void only as to so much thereof as shall not be expressed in the title." 
The Constitution of Nevada provides that " every law enacted by the legislature 
shall embrace but one subject, and matters properly connected therewith, which 
subject shall be briefly expressed in the title." The Constitutions of New York 
and Wisconsin provide that " no private or local bill which may be passed by the 
legislature shall embrace more than one subject, and that shall be expressed in 
the title." The Constitution of Illinois is in this regard nearly identical with that 
of Missouri. Whether the word object is to have any different construction from 
the word subject, as used in these provisions, is a question which may some, time 
require discussion ; but as it is evidently employed for precisely the same purpose, 
it would seem that it ought not to have. Compare Hingle v. State, 21 Ind. 28, 
and People v. Lawrence, 36 Barb. 192. 

[156] 



CH. VI.] OP THE ENACTMENT OF LAWS. * 142 

Supreme Court of Louisiana, speaking of the former practice : 
" The title of an act often afforded no clue to its contents. Im- 
portant general principles were found placed in acts private or 
local in their operation ; provisions concerning matters of practice 
or judicial proceedings were sometimes included in the same 
statute with matters entirely foreign to them, the result of which 
was that on many important subjects the statute law had become 
almost unintelligible, as they whose duty it has been to examine 
or act under it can well testify. To prevent any further accu- 
mulation to this chaotic mass was the object of the constitutional 
provision under consideration." 1 The Supreme Court of Michigan 
say : " The history and purpose of this constitutional pro- 
vision are too well understood to require any * elucidation [* 143] 
at our hands. The practice of bringing together into one 
bill subjects diverse in their nature and having no necessary con- 
nection with a view to combine in their favor the advocates of all, 
and thus secure the passage of several measures, no one of which 
could succeed upon its own merits, was one both corruptive of the 
legislator and dangerous to the State. It was scarcely more so, 
however, than another practice, also intended to be remedied by 
this provision, by which, through dexterous management, clauses 
were inserted in bills of which the titles gave no intimation, and 
their passage secured through legislative bodies whose members 
were not generally aware of their intention and effect. There was 
no design by this clause to embarrass legislation by making laws 
unnecessarily restrictive in their scope and operation, and thus 
multiplying their number ; but the trainers of the constitution 
meant to put an end to legislation of the vicious character referred 
to, which was little less than a fraud upon the public, and to re- 
quire that in every case the proposed measure should stand upon 
its own merits, and that the legislature should be fairly satisfied 
of its design when required to pass upon it." 2 The Court of 
Appeals of New York declare the object of this provision to be 
" that neither the members of the legislature nor the people should 
be misled by the title." 3 The Supreme Court of Iowa say : " The 

1 Walker v. Caldwell, 4 La. An. 2JS. See Fletcher v. Oliver, 25 Ark. 298. 

8 People v. Mahaney, 13 Mich. 494. And see Board of Supervisors v. Heenan, 
2 Minn. 336 ; Davis v. Bank of Fulton, 31 Geo. 69 ; St. Louis v. Tiefel, 42 Mo. 
578. 

3 Sun Mutual Insurance Co. v. Mayor, &c, of New York, 8 N. Y. 253. 

[157] 



* 143 CONSTITUTIONAL LIMITATIONS. [CH. VI. 

intent of this provision of the constitution was, to prevent the 
union, in the same act, of incongruous matters, and of objects 
having no connection, no relation. And with this it was designed 
to prevent surprise in legislation, by having matter of one nature 
embraced in a bill whose title expressed another." 1 And similar 
expressions will be found in many other reported cases. 2 It may 
therefore be assumed as settled that the purpose of these provi- 
sions was : first, to prevent hodge podge, or " log-rolling " legis- 
lation ; second, to prevent surprise or fraud upon the legislature, 
by means of provisions in bills of which the titles 
[* 144] * gave no intimation, and which might therefore be over- 
looked and carelessly and unintentionally adopted ; and, 
third, to fairly apprise the people, through such publication of 
legislative proceedings as is usually made, of the subjects of 
legislation that are being considered, in order that they may have 
opportunity of being heard thereon, by petition or otherwise, if 
they shall so desire. 

2. The particularity required in stating the object. The gen- 
eral purpose of these provisions is accomplished when a law has 
but one general object, which is fairly indicated by its title. To 
require every end and means necessary or convenient for the 
accomplishment of this general object to be provided for by a 
separate act relating to that alone, would not only be unreason- 
able, but would actually render legislation impossible. It has 
accordingly been held that the title of " an act to establish a 
police government for the city of Detroit," was not objectionable 
for its generality, and that all matters properly connected with 
the establishment and efficiency of such a government, including 
taxation for its support, and courts for the examination and trial 
of offenders, might constitutionally be included in the bill under 
this general title. Under any different ruling it was said, " the 
police government of a city could not be organized without a dis- 
tinct act for each specific duty to be devolved upon it, and these 
could not be passed until a multitude of other statutes had taken 

1 State v. County Judge of Davis Co., 2 Iowa, 282. 

* See Conner v. Mayor, &c., of New York, 5 N. Y. 293 ; Davis v. State, 7 Md. 
151. The Supreme Court of Indiana also understand the provision in the con- 
stitution of that State to be designed, among other things, to assist in the codifi- 
cation of the laws. Indiana Central Railroad Co. v. Potts, 7 Ind. 685 ; Hingle 
v. State, 24 Ind. 28. 

[158] 



CH. VI.] OP THE ENACTMENT OF LAWS. * 144 

the same duties from other officers before performing them. And 
these several statutes, fragmentary as they must necessarily be, 
would often fail of the intended object, from the inherent diffi- 
culty in expressing the legislative will when restricted to such 
narrow bounds." 1 The generality of a title is therefore no objec- 
tion to it, so long as it is not made a cover to legislation incongru- 
ous in itself, and which by no fair intendment can be considered 
as having a necessary or proper connection. 2 The legislature must 
determine for itself how broad and comprehensive shall be the 
object of a statute, and how much particularity shall be employed 
in the title in defining it. 3 One thing, however, is very 
* plain ; that the use of the words " other purposes," which [* 145] 
has heretofore been so common in the title to acts, with a 

1 People v. Mahaney, 13 Mich. 495. See also Morford v. Unger, 8 Iowa, 82, 
and Whiting v. Mount Pleasant, 11 Iowa, 482 ; Bright v. McCulloch, 27 Ind. 
223; Mayor, &c, of Annapolis v. State, 30 Md. 112; State v. Union, 33 N. J. 
354 ; Humboldt County v. Churchill Co. Commissioners, 6 Nev. 30. 

2 Indiana Central Railroad Co. v. Potts, 7 Ind. 681 ; People v. Briggs, 50 
N. Y. 553. 

3 In State v. Powers, 14 Ind. 195, an act came under consideration, the title 
to which was, "An act to amend the first section of an act entitled 'An act 
concerning 1 censes to vend foreign merchandise, to exhibit any caravan, mena- 
gerie, circus, rope and wire dancing puppet-shows, and legerdemain,' approved 
June 15, 1852, and for the encouragement of agi'iculture, and concerning the 
licensing of stock and exchange brokers." It was held that the subject of the 
act was licenses, and that it was not unconstitutional as containing more than 
one subject. But it was held also that, as the licenses which it author zed and 
required were specified in the title, the act could embrace no others, and conse- 
quently a provision in the act requiring concerts to be licensed was void. In 
State v. County Judge of Davis County, 2 Iowa, 280, the act in question was 
entitled " An act in relation to certain State roads therein named." It contained 
sixty-six sections, in which it established some forty-six roads, vacated some, and 
provided for the re-location of others. The court sustained the act. "The 
object of an act may be broader or narrower, more or less extensive; and the 
broader it is, the more particulars will it embrace. . . . There is undoubtedly 
great objection to uniting so many particulars in one act, but so long as they are 
of the same nature, and come legitimately under one general determination or 
object, we cannot say that the act is unconstitutional. 1 ' P. 284. Upon this sub- 
ject see Indiana Central Railroad Co. v. Potts, 7 Ind. 684, where it is considered 
at length. Also Brewster v. Syracuse, 19 N. Y. 116; Hall v. Bunte, 20 Ind. 
304 ; People v. McCalluin, 1 Neb. 182. An act entitled " An act fixing the time 
and mode of electing State printer, defining his duties, fixing compensation, and 
repealing all laws coming in conflict with this act," was sustained in Walker v. 
Dunham, 17 Ind. 483. 

[159] 



* 145 CONSTITUTIONAL LIMITATIONS. [CH. VI. 

view to cover any and every tiling, whether connected with the 
main purpose indicated by the title or not, can no longer be of any 
avail ! ere these provisions exist. As was said by the Supreme 
Court of New York in a case where these words had been made 
use of in the title to a local bill : " The words ' for other purposes ' 
must be laid out of consideration. They express nothing, and 
amount to nothing as a compliance with this constitutional require- 
ment. Nothing which the act could not embrace without them can 
be brought in by their aid." 1 

3. What is embraced by the title. The repeal of a statute on a 
given subject, it is held, is properly connected with the subject- 
matter of a new statute on the same subject ; and therefore a 
repealing section in the new statute is valid, notwithstanding 

the title is silent on that subject. 2 So an act to incorpo- 
[* 146J rate a railroad * company, it has been held, may authorize 

counties to subscribe to its stock, or otherwise aid the 
construction of the road. 3 So an act to incorporate the Firemen's 
Benevolent Association may lawfully include under this title pro- 
visions for levying a tax upon the income of foreign insurance 
companies, at the place of its location, for the benefit of the corpo- 
ration. 4 So an act to provide a homestead for widows and children 
was held valid, though what it provided for was the pecuniary means 

1 Town of Fishkill v. Fisbkill and Beekman Plank Road Co., 22 Barb. 642. 
See, to the same effect, Ryerson v. Utley, 1G Mich. 269; St. Louis v. Tiefel, 42 
Mo. 578. An act entitled " An act to repeal certain acts therein named," is 
void. People v. Mellen, 32 111. 181. An act, having for its sole object to legal- 
ize certain proceedings of the Common Council of Janesville, but entitled merely 
" An act to legalize and authorize the assessment of street improvements and 
assessments," was held not to express the subject, because failing to specify the 
locality. Durkee v. Janesville, 26 Wis. 697. 

2 Gabbert v. Railroad Co., 11 Ind. 365. The constitution under which this 
decision was made required the law to contain but one subject, and mailers 
properly connected therewith; but the same decision was made under the New 
York Constitution, which omits the words here italicized; and it may well be 
doubted whether the legal effect of the provision is varied by the addition of 
those words. See Guilford v. Cornell, 18 Barb. 640. 

3 Supervisors, &c. v. People, 25 111. 181. So a provision for the costs on 
appeal from a justice, is properly connected with the subject of an act entitled 
of "the election and qualification of justices of the peace, and defining their 
jurisdiction, powers, and duties in civil cases." Robinson v. Skipworth, 23 Ind. 

811. 

4 Firemen's Association v. Lounsbury, 21 111. 511. 

[160] 



CH. VI.] OF THE ENACTMENT OP LAWS. * 146 

sufficient to purchase a homestead. 1 So an act " to regulate pro- 
ceedings in the county court" was held to properly embrace a 
provision giving an appeal to the District Court, and regulating 
the proceedings therein on the appeal. 2 So an act entitled " an act 
for the more uniform doing of township business " may properly 
provide for the organization of townships. 3 So it is held that the 
changing of the boundaries of existing counties is a matter properly 
connected with the subject of forming new counties out of those 
existing. 4 So a provision for the organization and sitting of courts 
in new counties is properly connected with the subject of the 
formation of such counties, and may be included in " an act to 
authorize the formation of new counties, and to change county 
boundaries." 5 Many other cases are referred to in the note which 
will further illustrate the views of the courts upon this subject. 
There has been a general disposition to construe the constitutional 
provision liberally, rather than to embarrass legislation by a con- 
struction whose strictness is unnecessary to the accomplishment of 
the beneficial purposes for which it has been adopted. 6 

1 Succession of Lanzetti, 9 La. An. 329. 

2 Murpkey v. Menard, 11 Texas, 673. 

3 Clinton v. Draper, 14 Ind. 295. 

4 Haggard v. Hawkins, 14 Ind. 299. And see Duncombe v. Prindle, 12 
Iowa, 1. 

5 Brandon v. State, 16 Ind. 197. In this case, and also in State v. Bowers, 
14 Ind. 198, it was held that if the title to an original act is sufficient to embrace 
the matters covered by the provisions of an act amendatory thereof, it is unneces- 
sary to inquire whether the title of an amendatory act would, of itself, be sufficient. 
And see Morford v. Unger, 8 Iowa, 82. 

6 Green v. Mayor, &c, R. M. Charlt. 368; Martin v. Broach, 6 Geo. 21; 
Protho v. Orr, 12 Geo. 36 ; Wheeler v. State, 23 Geo. 9 ; Hill v. Commissioners, 
22 Geo. 203; Jones v. Columbus, 25 Geo. 610; Denham v. Holeman, 26 Geo. 
182; Cannon v. Hemphill, 7 Texas, 184; Battle v. Howard, 13 Texas, 345; 
Robinson v. State, 15 Texas, 311 ; Conner v. Mayor, &c, of New York, 2 Sandf. 
355, and 5 N. Y. 285; Fishkill v. Plank Road Co., 22 Barb. 634; Brewster v. 
Syracuse, 19 N. Y. 116; People v. McCann, 16 N. Y. 58; Williams v. People, 
24 N. Y. 405 ; People v. Lawrence, 36 Barb. 177 ; Sharp v. Mayor, &c, of New 
York, 31 Barb. 572; Davis v. State, 7 Md. 51; Keller v. State, 11 Md. 525; 
Parkinson v. State, 14 Md. 184; Bossier v. Steele, 13 La. An. 433; La;fon v. 
Dufoe, 9 La. An. 329; State v. Harrison, 11 La. An. 722; Williams v. Payson, 
14 La. An. 7 ; Fletcher v. Oliver, 25 Ark. 298 ; Mewherter v. Price, 11 Ind. 199 ; 
Gabbert v. Railroad Co., ib. 365 ; Railroad Co. v. Whiteneck, 8 Ind. 217 ; Wil- 
kins v. Miller, 9 Ind. 100; Foley v. State, ib. 363; Gillespie v. State, ib. 380; 
Henry v. Henry, 13 Ind. 250 ; Igoe v. State, 14 Ind. 239 ; Haggard v. Hawkins, 

11 [ 161 ] 



* 147 CONSTITUTIONAL LIMITATIONS. [CH. VI. 

[* 147] * 4. Tfie effect if the title embrace more than one object. 
Perhaps in those States where this constitutional provision 

ib. 299 ; Reed v. State, 12 Ind. 641 ; Sturgeon v. Hitchens, 22 Ind. 107 ; Lauer 
v. State, ib. 461; Central Plank Road Co. v. Hannaman, ib. 484; Gifford v. 
Railroad Co., 2 Stockt. 171 ; Johnson v. Higgins, 3 Met. (Ky.) 566 ; Chiles v. 
Drake, 2 Met. (Ky.) 146; Louisville, &c, Co. v. Ballard, ib. 165; Phillips 
v. Covington, &c., Co., ib. 219; Chiles v. Monroe, 4 Met. (Ky.) 72; Common- 
wealth v. Dewey, 15 Grat. 1 ; Whiting v. Mount Pleasant, 11 Iowa, 482 ; Tuttle 
v. Strout, 7 Minn. 465 ; Supervisors, &c. v. Heenan, 2 Minn. 330 ; Railroad Co. 
r. Gregory, 15 111. 20 ; People p. Mellen, 32 111. 181 ; Cutlip v. Sheriff, 3 W. Va. 
588 ; McAunich v. Mississippi, &c. R.R. Co., 20 Iowa, 338 ; State v. Gut, 13 
Minn. 341 ; People v. Allen, 42 N.Y. 404; State v. Miller, 45 Mo. 495. 

In Davis v. Woolnough, 9 Iowa, 104, an act entitled " An act for revising 
and consolidating the laws incorporating the city of Dubuque, and to establish 
a city court therein," was held to express by its title but one object, which 
was, the revising and consolidating the laws incorporating the city ; and the 
city court, not being an unusual tribunal in such a municipality, might be pro- 
vided for by the act, whether mentioned in the title or not. " An act to enable 
the supervisors of the city and county of New York to raise money by tax," 
provided for raising money to pay judgments then existing, and also any there- 
after to be recovered ; and it also contained the further provision, that whenever 
the controller of the city should have reason to believe that any judgment then 
of record or thereafter obtained had been obtained by collusion, or was founded 
in fraud, he should take the proper and necessary means to open and reverse the 
same, &c. This provision was held constitutional, as properly connected with 
the subject indicated by the title, and necessary to confine the payments of the 
tax to the objects for which the moneys were intended to be raised. Sharp v. 
Mayor, &c, of New York, 31 Barb. 572. In O'Leary v. Cook Co., 28 111. 534, 
it was held that a clause in an act incorporating a college, prohibiting the sale 
of ardent spirits within a distance of four miles, was so germane to the primary 
object of the charter as to be properly included within it. By the first section 
of "an act for the relief of the creditors of the Lockport and Niagara Falls 
Railroad Company," it was made the duty of the president of the corporation, or 
one of the directors to be appointed by the president, to advertise and sell the 
real and personal estate, including the franchise of the company, at public auction 
to the highest bidder. It was then declared that the sale should be absolute, 
and that it should vest in the purchaser or purchasers of the property, real or 
personal, of the company, all the franchise, rights, and privileges of the cor- 
poration, as fully and as absolutely as the same were then possessed by the 
company. The money arising from the sale, after paying costs, was to be applied, 
first, to the payment of a certain judgment, and then to other liens according 
to priority ; and the surplus, if any, was to be divided ratably among the other 
creditors, and then if there should be an overplus, it was to be divided ratably 
among the then stockholders. By the second section of the act, it was declared 
that the purchaser or purchasers should have the right to sell and distribute 
stock to the full amount which was authorized by the act of incorporation, and 

[ 162 ] 



CH. VI.] OF THE ENACTMENT OF LAWS. * 147 

is limited * in its operation to private and local bills, it [*148] 
might be held that an act was not void for embracing two 
or more objects which were indicated by its title, provided one of 
them only was of a private and local nature. It has been held in 
New York that a local bill was not void because embracing general 
provisions also ; 2 and if they may constitutionally be embraced in 
the act, it is presumed they may also be constitutionally embraced 
in the title. But if the title to the act actually indicates, and the 
act itself actually embraces, two distinct objects, when the consti- 
tution says it shall embrace but one, the.whole act must be treated 
as void, from the manifest impossibility in the court choosing 
between the two, and holding the act valid as to the one and void 
as to the other. 

5. The effect ivhere the act is broader than the title. But if the 
act is broader than the title, it may happen that one part of it can 
stand because indicated by the title, while as to the object not 
indicated by the title it must fail. Some of the State constitutions, 
it will be perceived, have declared that this shall be the rule ; but 
the declaration was unnecessary ; as the general rule, that so much 
of the act as is not in conflict with the constitution must be sus- 
tained, would have required the same declaration from the courts. 
If by striking from the act all that relates to the object not 
indicated by the title, that which is left is complete in itself, 
sensible, capable of being executed, and wholly independent of 
that which is rejected, it must be sustained as constitu- 
tional. * The principal questions in each case will there- [*149] 
fore be, whether the act is in truth broader than the title ; 
and if so, then whether the other objects in the act are so intimately 
connected with the one indicated by the title that the portion of the 

the several amendments thereto ; and to appoint an election, choose directors, 
and organize a corporation anew, with the same powers as the existing company. 
There was then a proviso, that nothing in the act should impair or affect the 
subscriptions for new stock, or the obligations or liabilities of the company 
which had been made or incurred in the extension of the road from Lockport to 
Rochester, &c. The whole act was held to be constitutional. Hosier v. Hilton, 
15 Barb. 657. And see Mills v. Charleton, 29 Wis. 400, — a very liberal case; 
Erlinger v. Boneau, 51 111. 94; State v. Newark, 34 1ST. J. 286; Smith v. Com- 
monwealth, 8 Bush, 108; State v. St. Louis Cathedral, 23 La. An. 720; Simpson 
v. Bailey, 3 Oreg. 515 ; Neifing v. Pontiac, 56 111. 172. 
1 People v. McCann, 16 N. Y. 58. 

[163] 



* 149 CONSTITUTIONAL LIMITATIONS. [CH. VI. 

act relating to them cannot be rejected, and leave a complete and 
sensible enactment which is capable of being executed. 1 

As the legislature may make the title to an act as restrictive as 
they please, it is obvious that they may sometimes so frame it as 
to preclude many matters being included in the act which might 
with entire propriety have been embraced in one enactment with 
the matters indicated by the title, but which must now be excluded, 
because the title has been made unnecessarily restrictive. The 
courts cannot enlarge the scope of the title ; they are vested with 
no dispensing power ; the constitution has made the title the 
conclusive index to the legislative intent as to what shall have 
operation ; it is no answer to say that the title might have been 
made more comprehensive, if in fact the legislature have not seen 
fit to make it so. Thus, " An act concerning promissory notes and 
bills of exchange " provided that all promissory notes, bills of 
exchange, or other instruments in writing, for the payment of money, 
or for the delivery of specific articles, or to convey property, or 
to perform any other stipulation therein mentioned, should be 
negotiable, and assignees of the same might sue thereon in their 
own names. It was held that this act was void, as to all the 
instruments mentioned therein except promissory notes and 
bills of exchange; 2 though it is obvious that it would have 
been easy to frame a title to the act which would have embraced 
them all, and which would have been unobjectionable. It has 
also been held that an act for the preservation of the Muskegon 
River Improvement could not lawfully provide for the levy and 
collection of tolls for the payment of the expense of constructing 
the improvement, as the operation of the act was carefully limited 
by its title to the future. 3 So also it has been held that " an act 
to limit the number of grand jurors, and to point oiyt the mode of 

1 People v. Briggs, 50 N. Y. 566. " ISTone of the provisions of a statute 
should be regarded as unconstitutional where they all relate, directly or indirectly, 
to the same subject, have a natural connection, and are not foreign to the subject 
expressed in the title."' Phillips v. Bridge Co., 2 Met. (Ky.) 222, approved, 
Smith v. Commonwealth, 8 Bush, 112. See Ex parte Upshaw, 45 Ala. 234. 

2 Mewherter v. Price, 11 Ind. 199. See also State v. Kinsella, 14 Minn. 524. 

3 Byerson v. Utley, 16 Mich. 269. See further Weaver v. Lapsley, 43 Ala. 
229 ; Tuscaloosa Bridge Co. v. Ohnstead, 41 Ala. 9 ; Stuart v. Kinsella, 14 Minn. 
524. In Cutlip v. Sheriff, 3 W. Va. 588, it was held that if an act embraces two 
objects, only one of which is specified in the title, the whole is void ; but this is 
opposed to the authorities generally. 

[164] 



CH. VI.] OF THE ENACTMENT OF LAWS. * 149 

their selection, defining their jurisdiction, and repealing all laws 
inconsistent therewith," courd not constitutionally contain pro- 
visions which should authorize a defendant in a criminal case, on 
a trial for any offence, to be found guilty of any lesser 
offence necessarily * included therein. 1 These cases must [* 150] 
suffice upon this point ; though the cases before referred 
to will furnish many similar illustrations. 

In all we have said upon this subject we have assumed the con- 
stitutional provision to be mandatory. Such has been the view of 
the courts almost without exception. In California, however, a 
different view has been taken, the court saying: " We regard this 
section of the constitution as merely directory ; and, if we were 
inclined to a different opinion, would be careful how we lent our- 
selves to a construction which must in effect obliterate almost 
every law from the statute-book, unhinge the business and destroy 
the labor of. the last three years. The first legislature that met 
under the constitution seems to have considered this section as 
directory ; and almost every act of that and the subsequent sessions 
would be obnoxious to this objection. The contemporaneous 
exposition of the first legislature, adopted or acquiesced in by 
every subsequent legislature, and tacitly assented to by the courts, 
taken in connection with the fact that rights have grown up under 
it, so that it has become a rule of property, must govern our 
decision." 2 Similar views have also been expressed in the State 
of Ohio. 3 These cases, and especially what is said by the Califor- 
nia court, bring forcibly before our minds a fact, which cannot be 
kept out of view in considering this subject, and which has a very 
important bearing upon the precise point which these decisions 
cover. The fact is this : that whatever constitutional provision can 
be looked upon as directory merely is very likely to be treated by 
the legislature as if it was devoid even of moral obligation, and to 
be therefore habitually disregarded. To say that a provision is 
directory seems, with many persons, to be equivalent to saying 
that it is not law at all. That this ought not to be so must be con- 
ceded ; that it is so we have abundant reason and good authority 

1 Foley v. State, 9 Ind. 363 ; Gillespie v. State, ib. 380. See also Indiana 
Cent. Railroad Co. v. Potts, 7 Ind. 681; State v. Squires, 26 Iowa, 340; State 
v. Lafeyette Co. Court, 41 Mo. 39; People v. Denahy, 20 Mich. 349. 

2 Washington v. Murray, 4 Cal. 388. 

3 Miller v. State, 3 Ohio, n. s. 475; Pim v. Nicholson, 6 Ohio, n. s. 177. 

[165] 



* 150 CONSTITUTIONAL LIMITATIONS. [CH. VI. 

for saying. If, therefore, a constitutional provision is to be enforced 
at all, it must be treated as mandatory. And if the legislature habit- 
ually disregard it, it seems to us that there is all the more urgent 
necessity that the courts should enforce it. And it also 
[* 151] seems to us that there are few evils which * can be inflict- 
ed by a strict adherence to the law, so great as that which 
is done by the habitual disregard, by any department of the gov- 
ernment, of a plain requirement of that instrument from which it 
derives its authority, and which ought, therefore, to be scrupulously 
observed and obeyed. Upon this subject we need only refer here 
to what we have said concerning it in another place. 1 

Amendatory Statutes. 

It has also been deemed important, in some of the States, to 
provide by their constitutions, that " no act shall ever be revised 
or amended by mere reference to its title ; but the act revised or 
section amended shall be set forth and published at full length." 2 
Upon this provision an important query arises. Does it mean 
that the act or section revised or amended shall be set forth and 
published at full length as it stood before, or does it mean only 
that it shall be set forth and published at full length as amended 
or revised ? Upon this question perhaps a consideration of the 
purpose of the provision may throw some light. " The mischief 
designed to be remedied was the enactment of amendatory stat- 
utes in terms so blind that legislators themselves were sometimes 
deceived in regard to their effects, and the public, from the diffi- 
culty in making the necessary examination and comparison, failed 
to become apprised of the changes made in the laws. An 
amendatory act which purported only to insert certain words, or to 

1 Ante, p. 74. 

2 This is the provision as it is found in the Constitutions of Indiana, Nevada, 
Oregon, Texas, and Virginia. In Kansas, Ohio, [Nebraska, Michigan, Louisiana, 
Wisconsin, Missouri, and Maryland there are provisions of similar import. In 
Tennessee the provision is: "All acts which revive, repeal, or amend former 
laws, shall recite, in their caption or otherwise, the title or substance of the law 
repealed, revived, or amended." Art. 1, § 17. 

In Texas it appears to be held that the legislature may repeal a definite por- 
tion of a section without the re-enactment of the section with such portion omitted. 
Chambers v. State, 25 Texas, 307. But qncere of this. Any portion of a section 
amended which is not contained in the amendatory section as set forth and pub- 
lished is repealed. State v. Ingersoll, 17 Wis. 631. 

[166] 



CH. VI.] OF THE ENACTMENT OF LAWS. * 151 

substitute one phrase for another in an act or section which was 
only referred to, but not published, was well calculated to mis- 
lead the careless as to its effect, and was, perhaps, sometimes 
drawn in that form for the express purpose. Endless confusion 
was thus introduced into the law, and the constitution wisely pro- 
hibited such legislation." x If this is a correct view of the pur- 
pose of the provision, it does not seem to be at all important to 
its accomplishment that the old law should be republished, if the 
law as amended is given in full, with such reference to the old 
law as will show for what the new law is substituted. 
Nevertheless, * it has been decided in Louisiana that the [* 152] 
constitution requires the old law to be set forth and pub- 
lished ; 2 and the courts of Indiana, assuming the provision in their 
own constitution to be taken from that of Louisiana after the deci- 
sions referred to had been made, at one time adopted and followed 
them as precedents. 3 It is believed, however, that the general 
understanding of the provision in question is different, and that 
it is fully complied with in letter and spirit, if the act or section 
revised or amended is set forth and published as revised or amended, 
and that any thing more only tends to render the statute unneces- 
sarily cumbrous. 4 Statutes which amend others by implication, 
however, are not within this provision ; and it is not essential that 
they even refer to the acts or sections which by implication they 
amend. 5 

1 People v. Mabaney, 13 Mich. 497. 

2 Walker v. Caldwell, 4 La. An. 297 ; Heirs of Duverge v. Salter, 5 La. An. 
94. 

3 Langdon v. Applegate, 5 Ind. 327; Rogers v. State, 6 Ind. 31. These 
cases were overruled in Greencastle, &c, Co. v. State, 28 Ind. 382. 

4 See Tuscaloosa Bridge Co. v. Olmstead, 41 Ala. 9; People v. Pritehard, 21 
Mich. 236; People v. McCallun, 1 Neb. 182; State v. Draper, 47 Mo. 29; 
Booneville v. Trigg, 46 Mo. 288. Under sucb a constitutional provision where 
a statute simply repeals others, it is not necessary to set them out. Falconer v. 
Robinson, 46 Ala. 340. Compare Bird v. Wasco County, 3 Oreg. 282. 

5 People v. Mabaney, 13 Mich. 496 ; Spencer v. State, 5 Ind. 41 ; Branham v. 
Lange, 16 Ind. 497 ; Lehman v. McBride, 15 Ohio, N. s. 573. Repeals by 
implication, however, are not favored. Ibid. And see Naylor v. Field, 5 Dutch. 
287; State v. Berry, 12 Iowa, 58; Attorney-General v. Brown, 1 Wis. 525; 
Dodge v. Gridley, 10 Ohio, 177 ; Hirn v. State, 1 Ohio, N. s. 20 ; McCool v. 
Smith, 1 Black, 459 ; New Orleans v. Southern Bank, 15 La. An. 89 ; Blain v. 
Bailey, 25 Ind. 165; Swann v. Buck, 40 Miss. 268; Davis v. State, 7 Md. 151 ; 
State v. The Treasurer, 41 Mo. 16 ; Henderson's Tobacco, 11 Wal. 652. 

[167] 



* 152 CONSTITUTIONAL LIMITATIONS. [CH. VI. 

It was a parliamentary rule that a statute should not be re- 
pealed at the same session of its enactment, unless a clause per- 
mitting it was inserted in the statute itself; 1 but this rule did 
not apply to repeals by implication, 2 and it is possibly not recog- 
nized in this country at all, except where it is incorporated in the 
State constitution. 3 

Signing of Bills. 

When a bill has passed the two houses, it is engrossed for the 
signatures of the presiding officers. This is a constitutional re- 
quirement in most of the States, and therefore cannot be dis- 
pensed with ; though, in the absence of any such requirement, it 

would seem not to be essential. 4 And if, by the consti- 
[* 153] tution of * the State, the governor is a component part of 

the legislature, the bill is then presented to him for his 
approval. 

Approval of Laivs. 

The qualified veto power of the governor is regulated by the 
constitutions of those States which allow it, and little need be said 
here beyond referring to the constitutional provisions for informa- 
tion concerning them. It has been held that if the governor, by 
statute, was entitled to one day, previous to the adjournment of the 
legislature, for the examination and approval of laws, this is to be 
understood as a full day of twenty-four hours, before the hour of 
the final adjournment. 5 It has also been held that, in the approval 
of laws, the governor is a component part of the legislature, and 
that unless the constitution allows further time for the purpose, he 

1 Dwarris on Statutes, Vol. I. p. 269; Sedgw. on Stat, and Const. Law, 122 ; 
Smith on Stat, and Const. Construction, 908. 

2 Ibid. And see Spencer v. State, 5 Ind. 41. 

8 Spencer v. State, 5 Ind. 41 ; Attorney-General v. Brown, 1 Wis. 513 ; Smith 
on Stat, and Const. Construction, 908 ; Mobile & Ohio Railroad Co. v. State, 29 
Ala. 573. 

4 Speer v. Plank Road Co., 22 Penn. St. 376. 

5 Hyde v. White, 24 Texas, 137. The five days allowed in New Hampshire 
for the governor to return bills which have not received his assent, include days 
on which the legislature is not in session, if it has not 'finally adjourned. Opinions 
of Judges, 45 N. H. 607. But the day of presenting the bill to the governor 
should be excluded. Ibid. As to the power of the governor, derived from long 

[168] 



CH. VI.] OF THE ENACTMENT OP LAWS. * 153 

must exercise Ins power of approval before the two houses adjourn, 
or his act will be void. 1 But under a provision of the Constitution 
of Minnesota, that the governor may approve and sign " within 
three days of the adjournment of the legislature any act passed 
during the last three days of the session," it has been held that 
Sundays were not to be included as a part of the prescribed time ; 2 
and under the Constitution of New York, which provided that, " if 
any bill shall not be returned by the governor within ten days, 
Sundays excepted, after it shall have been presented to him, the 
same shall be a law, in like manner as if he had signed it, unless 
the legislature shall, by their adjournment, prevent its return, in 
which case it shall not be a law," it was held that the governor 
might sign a bill after the adjournment, at any time within the ten 
days. 3 The governor's approval is not complete until the 
bill has passed beyond his control * by the constitutional [* 154] 
and customary mode of legislation ; and at any time prior 
to that he may reconsider and retract any approval previously 

usage, to approve and sign bills after the adjournment of the legislature, see 
Solomon v. Cartersville, 41 Geo. 157. 

Neither house can, without the consent of the other, recall a bill after its 
transmission to the governor. People v. Devlin, 33 N. Y. 269. 

The delivery of a bill passed by the two houses to the secretary of the com- 
monwealth according to custom, is not a presentation to the governor for his 
approval, within the meaning of the constitutional clause which limits him to a 
certain number of days after the presentation of the bill to veto it. Opinions of 
the Justices, 99 Mass. 636. 

1 Fowler v. Peirce, 2 Cal. 165. The court also held in this case that, notwith- 
standing an act purported to have been approved before the actual adjournment, 
it was competent to show by parol evidence that the actual approval was not 
until the next day. In support of this ruling, People v. Purdy, 2 Hill, 31, was 
cited, where it was held that the court might go behind the statute-book and in- 
quire whether an act to which a two-thirds vote was essential had constitutionally 
passed. That, however, would not be in direct contradiction of the record, 
but it would be inquiring into a fact concerning which the statute was silent, and 
other records supplied the needed information. 

2 Stinson v. Smith, 8 Minn. 366. 

3 People v. Bowen, 30 Barb. 2-4. Where on the tenth day the governor sent 
a bill with his objections to the house with which it originated, but the messenger, 
finding the house had adjourned for the day, returned it to the governor, who 
retained it, it was held that to prevent the bill becoming a law it should have 
been left with the proper officer of the house instead of being retained by the 
governor. Harpending v. Haight, 39 Cal. 189. 

[169] 



* 154 CONSTITUTIONAL LIMITATIONS. [CH. VI. 

made. 1 His disapproval of a bill is communicated to the house in 
which it originated, with his reasons ; and it is there reconsidered, 
and may be again passed over the veto by such vote as the consti- 
tution prescribes. 2 

1 People v. Hatch, 19 111. 283. An act apportioning the representatives was 
passed by the legislature and transmitted to the governor, who signed his appro- 
val thereon by mistake, supposing at the time that he was subscribing one of 
several other bills then lying before him, and claiming his official attention ; his 
private secretary thereupon reported the bill to the legislature as approved, not 
by the special direction of the governor, nor with his knowledge or special assent, 
but merely in his usual routine of customary duty, the governor not being con- 
scious that he had placed his signature to the bill until after information was 
brought to him of its having been reported approved ; whereupon he sent a mes- 
sage to the speaker of the house to which it was reported, stating that it had 
been inadvertently signed and not approved, and on the same day completed a 
veto message of the bill which was partially written at the time of signing his 
approval, and transmitted it to the house where the bill originated, having first 
erased his signature and approval. It was held that the bill had not become a 
law. It had never passed out of the governor's possession after it was received 
by him until after he had erased his signature and approval, and the court was 
of opinion that it did not pass from his control until it had become a law by the 
lapse often days under the constitution, or by his depositing it with his approval 
in the office of the secretary of state. It had long been the practice of the gov- 
ernor to report, formerly through the secretary of state, but recently through his 
private secretary, to the house where bills originated, his approval of them ; but 
this was only a matter of formal courtesy, and not a proceeding necessary to the 
making or imparting vitality to the law. By it no act could become a law which 
without it would not be a law. Had the governor returned the bill itself to the 
house, with his message of approval, it would have passed beyond his control, 
and the approval could not have been retracted, unless the bill had been with- 
drawn by consent of the house ; and the same result would have followed his 
filing the bill with the secretary of state with his approval subscribed. 

The Constitution of Indiana provides, art. 5, § 14, that, " if any bill shall not 
be returned by the governor within three days, Sundays excepted, after it shall 
have been presented to him, it shall be a law without his signature, unless the 
general adjournment shall prevent its return ; in which case it shall be a law 
unless the governor, within five days next after the adjournment, shall file such 
bill with his objections thereto, in the office of the secretary of state," &c. Under 
this provision it was held that where the governor, on the day of the final ad- 
journment of the legislature, and after the adjournment, filed a bill received that 
day, in the office of the secretary of state, without approval or objections thereto, 
it thereby became a law, and he could not file objections afterwards. Tarlton v. 
Peggs, 18 Ind. 24. 

2 A bill which, as approved and signed, differs in important particulars from 
the one signed, is no law. Jones v. Hutchinson, 43 Ala. 721. 

If the governor sends back a bill which has been submitted to him, stating 

[170] 



CH. VI.] OF THE ENACTMENT OF LAWS. * 155 



* Other Powers of the Governor. [* 155] 

The power of the governor as a branch of the legislative depart- 
ment is almost exclusively confined to the approval of bills. As 
executive, he communicates to the two houses information con- 
cerning the condition of the State, and may recommend measures 
to their consideration, but he cannot originate or introduce bills. 
He may convene the legislature in extra session whenever extra- 
ordinary occasion seems to have arisen ; but their powers when 
convened are not confined to a consideration of the subjects to 
which their attention is called by his proclamation or his message, 
and they may legislate on any subject as at the regular sessions. 1 
An exception to this statement exists in those States where, by the 
express terms 'of the constitution, it is provided that when convened 
in extra session the legislature shall consider no subject except 
that for which they were specially called together, or which may 

that he cannot act upon it because of some supposed informality in its passage, 
this is in effect an objection to the bill, and it can only become a law by further 
action of the legislature, even though the governor may have been mistaken as 
to the supposed informality. Birdsall v. Carrick, 3 Nev. 154. 

In practice the veto power, although very great and exceedingly important in 
this country, is obsolete in Great Britain, and no king now ventures to resort to 
it. As the Ministry must at all times be in accord with the House of Commons, 
— except where the responsibility is taken of dissolving the Parliament and 
appealing to the people, — it must follow that any bill which the two houses have 
passed must be approved by the monarch. The approval has become a matter 
of course, and the governing power in Great Britain is substantially in the House 
of Commons. 1 Bl. Com. 184-5, and notes. 

1 The Constitution of Iowa, art. 4, § 11, provides that the governor " may, 
on extraordinary occasions, convene the General Assembly by proclamation, and 
shall state to both houses, when assembled, the purpose for which they have been 
convened." It was held in Morford v. Unger, 8 Iowa, 82, that the General 
Assembly, when thus convened, were not confined in their legislation to the pur- 
poses specified in the message. " When lawfully convened, whether in virtue of 
the provision in the constitution or the governor's proclamation, it is the ' General 
Assembly ' of the State, in which the full and exclusive legislative authority of 
the State is vested. Where its business at such session is not restricted by some 
constitutional provision, the General Assembly may enact any law at a special or 
extra session that it might at a regular session. Its powers, not being derived 
from the governor's proclamation, are not confined to the special purpose for 
which it may have been convened by him." 

[171] 



* 155 CONSTITUTIONAL LIMITATIONS. [CH. VI. 

have been submitted to them by special message of the gov- 
ernor. 1 

When Acts are to take Effect. 

The old rule was that statutes, unless otherwise ordered, took 
effect from the first day of the session on which they were 
[* 156] passed ; 2 * but this rule was purely arbitrary, based upon 
no good reason, and frequently working very serious in- 
justice. The present rule is that an act takes effect from the time 
when the formalities of enactment are actually complete under the 
constitution, unless it is otherwise ordered, or unless there is some 
constitutional or statutory rule on the subject which prescribes 
otherwise. By the Constitution of Mississippi, 3 " no law of a gen- 
eral nature, unless otherwise provided, shall be enforced until sixty 
days after the passage thereof." By the Constitution of Illinois, 4 
no' act of the General Assembly shall take effect until the first day 
of July next after its passage, unless in case of emergency (which 
emergency shall be expressed in the preamble or body of the act) 
the General Assembly shall, by a vote of two-thirds of all the mem- 
bers elected to each house, otherwise direct. By the Constitution 
of Michigan, 5 no public act shall take effect, or be in force, until 
the expiration of ninety days from the end of the session at which 
the same is passed, unless the legislature shall otherwise direct by 
a two-thirds vote of the members elected to each house. These 
and similar provisions are designed to secure, as far as possible, 
the public promulgation of the law before parties are bound to 
take notice of and act under it, and to obviate the injustice of a 
rule which should compel parties at their peril to know and obey a 
law of which, in the nature of things, they could not possibly have 
heard ; they give to all parties the full constitutional period in 
which to become acquainted with the terms of the statutes which 

1 Provisions to this effect will be found in the Constitutions of Illinois, Michi- 
gan, Missouri, and Nevada; perhaps in some others. 

2 1 Lev. 91 ; Latless v. Holmes, 4 T. R. 660. This is changed by 33 Geo. 
III. c. 13, by which statutes since passed take effect from the day when they 
receive the royal assent, unless otherwise ordered therein. Where an act is to 
take effect from and after its passage, it will do so, even though not promulgated 
in the official journal. Thomas v. Scott, 23 La. An. 689. And its effect covers 
the whole day of its approval. Wood v. Fort, 42 Ala. 641. 

3 Art. 7, § 6. 4 Art. 3, § 23. 6 Art. 4, § 20. 

[172] 



CH. VI.] OF THE ENACTMENT OF LAWS. * 156 

are passed, except when the legislature has otherwise directed ; and 
no one is bound to govern his conduct by the new law until that 
period has elapsed. 1 And the fact that, by the terms of the statute, 
something is to be done under it before the expiration of the consti- 
tutional period for it to take effect, will not amount to a legislative 
direction that the act shall take effect at that time, if the act itself 
is silent as to the period when it shall go into operation. 2 

* The Constitution of Indiana provides 3 that "no act [* 157] 
shall take effect until the same shall have been published 
and circulated in the several counties of this State, by authority, 
except in case of emergency ; which emergency shall be declared 
in the preamble, or in the body of the law." Unless the emer- 
gency is thus declared, it is plain that the act cannot take earlier 
effect. 4 But the courts will not inquire too nicely into the mode 
of publication. If the laws are distributed in bound volumes, in 
a manner and shape not substantially contrary to the statute on 
that subject, and by the proper authority, it will be held sufficient, 
notwithstanding a failure to comply with some of the directory 
provisions of the statute on the subject of publication. 5 

1 Price v. Hopkin, 13 Mich. 318. See, however, Smith v. Morrison, 22 Pick. 
430; Stine v. Bennett, 13 Minn. 153. Where a law has failed to take effect for 
want of publication, all parties are chargeable with notice of that fact. Clark 
v. Janesville, 10 Wis. 136. 

2 Supervisors of Iroquois Co. v. Keady, 34 111. 293. An act for the removal 
of a county seat provided for taking the vote of the electors of the county upon 
it on the 17th of March, 1863, at which time the legislature had not adjourned. 
It was not expressly declared in the act at what time it should take effect, and it 
was therefore held that it would not take effect until sixty days from the end of 
the session, and a vote of the electors taken on the 17th of March was void. 
And it was also held in this case, and in Wheeler v. Chubbuck, 16 111. 361, that 
" the direction must be made in a clear, distinct, and unequivocal provision, and 
could not be helped out by any sort of intendment or implication," and that the 
act must all take effect at once, and not by piecemeal. 

3 Art. 4, § 28. 

4 Carpenter v. Montgomery, 7 Blackf. 415; Hendrickson v. Hendrickson, 7 
Ind. 13; Mark v. State, 15 Ind. 98. The legislature must necessarily in these 
cases be judge of the existence of the emergency. Carpenter v. Montgomery, 
supra. The Constitution of Tennessee provides that " No law of a general 
nature shall take effect until forty days after its passage, unless the same, or the 
caption, shall state that the public welfare requires that it should take effect 
sooner." Art. 1, § 20. 

5 State v. Bailey, 16 Ind. 46. See further, as to this constitutional provision, 
Jones v. Gavins, 4 Ind. 305. 

[173] 



* 157 CONSTITUTIONAL LIMITATIONS. [CH. VI. 

The Constitution of Wisconsin, on the other hand, provides 1 
that " no general law shall be in force until published " ; thus 
leaving the time when it should take effect to depend, not alone 
upon the legislative direction, but upon the further fact of publi- 
cation. But what shall be the mode of publication seems to be 
left to the legislative determination. It has been held, however, 
that a general law was to be regarded as published although 
printed in the volume of private laws, instead of the volume of 
public laws as the statute of the State would require. 2 But an 
unauthorized publication — as, for example, of an act for the in- 
corporation of a city in two local papers instead of the State 

paper — is no publication in the constitutional sense. 3 
[* 158] * The Constitution of Iowa provides that " no law of the 
General Assembly, passed at a regular session, of a public 
nature, shall take effect until the fourth day of July next after the 
passage thereof. Laws passed at a special session shall take 
effect ninety days after the adjournment of the General Assembly 
by which they were passed. If the General Assembly shall deem 
any law of immediate importance, they may provide that the same 
shall take effect by publication in newspapers in the State." 4 
Under this section it is not competent for the legislature to con- 
fer upon the governor the discretionary power which the consti- 
tution gives to that body, to fix an earlier day for the law to take 
effect. 5 

1 Art. 7, § 21. 

2 Matter of Boyle, 9 Wis. 264. Under this provision it has been decided that 
a law establishing a municipal court in a city is a general law. Matter of Boyle, 
supra. See Eitel v. State, 33 Ind. 201. Also a statute jbr the removal of a 
county seat. State v. Lean, 9 Wis. 279. Also a statute incorporating a muni- 
cipality, or authorizing k to issue bonds in aid of a railroad. Clark v. Janes- 
ville, 10 Wis. 136. And see Scott v. Clark, 1 Iowa, 70. 

3 Clark v. Janesville, 10 Wis. 136. See; further, Mills v. Jefferson, 20 Wis. 
50. 

4 Art. 3, § 26. 

6 Scott v. Clark, 1 Iowa, 70 ; Pilkey v. Gleason, ib. 522. 

[174] 



CH. VII.] DECLARING STATES UNCONSTITUTIONAL. * 159 



* CHAPTER VII. [*159] 

OF THE CIRCUMSTANCES UNDER WHICH A LEGISLATIVE ENACTMENT 
MAY BE DECLARED UNCONSTITUTIONAL. 

We have now examined somewhat briefly the legislative power 
of the State, and the bounds which expressly or by implication are 
set to it, and also some of the conditions necessary to its proper 
and valid exercise. In so doing it has been made apparent that, 
under some circumstances, it may become the duty of the courts 
to declare that what the legislature has assumed to enact is void, 
either from want of constitutional power to enact it, or because the 
constitutional forms or conditions have not been observed. In the 
further examination of our subject, it will be important to consider 
what the circumstances are under which the courts will feel im- 
pelled to exercise this high prerogative, and what precautions 
should be observed before assuming to do so. 

It must be evident to any one that the power to declare a legis- 
lative enactment void is one which the judge, conscious of the 
fallibility of the human judgment, will shrink from exercising in 
any case where he can conscientiously and with due regard to duty 
and official oath decline the responsibility. The legislative and 
judicial are co-ordinate departments of the government, of equal 
dignity ; each is alike supreme in the exercise of its proper func- 
tions, and cannot directly or indirectly, while acting within the 
limits of its authority, be subjected to the control or supervision of 
the other, without an unwarrantable assumption by that other of 
power w T hich, by the constitution, is not conferred upon it. The 
constitution apportions the powers of government, but it does not 
make any one of the three departments subordinate to another, 
when exercising the trust committed to it. The courts may declare 
legislative enactments unconstitutional and void in some cases, but 
not because the judicial power is superior in degree or dignity to 
the legislative. Being required to declare what the law is in the 
cases which come before them, they must enforce the con- 
stitution as the paramount law, whenever a legislative * en- [* 160] 

[175] 



* 160 CONSTITUTIONAL LIMITATIONS. [CH. VII. 

actment comes in conflict with it. 1 But the courts sit, not to 
review or revise the legislative action, but to enforce the legisla- 
tive will ; and it is only where they find that the legislature has 
failed to keep within its constitutional limits, that they are at 
liberty to disregard its action ; and in doing so, they only do what 
every private citizen may do in respect to the mandates of the 
courts when the judges assume to act and to render judgments or 
decrees without jurisdiction. " In exercising this high authority, 
the judges claim no judicial supremacy ; they are only the adminis- 
trators of the public will. If an act of the legislature is held void, 
it is not because the judges have any control over the legislative 
power, but because the act is forbidden by the constitution, and 
because the will of the people, which is therein declared, is para- 
mount to that of their representatives expressed in any law." 2 

Nevertheless, in declaring a law unconstitutional, a court must 
necessarily cover the same ground which has already been covered 
by the legislative department in deciding upon the propriety of 
enacting the law, and they must indirectly overrule the decision of 
that co-ordinate department. The task is therefore a delicate one, 
and only to be entered upon with reluctance and hesitation. It is 
a solemn act in any case to declare that that body of men to whom 
the people have committed the sovereign function of making the 
laws for the commonwealth, have deliberately disregarded the limi- 
tations imposed upon this delegated authority, and usurped power 
which the people have been careful to withhold ; and it is almost 
equally so when the act which is adjudged to be unconstitutional 
appears to be chargeable rather to careless and improvident action, 
or error in judgment, than to intentional disregard of obligation. 
But the duty to do this in a proper case, though at one time 
doubted, and by some persons persistently denied, it is now gener- 
ally agreed that the courts cannot properly decline, and in its per- 
formance they seldom fail of proper support if they proceed with 
due caution and circumspection, and under a proper sense as well 
of their own responsibility, as of the respect due to the action and 
judgment of the law-makers. 3 

1 Rice v. State, 7 Ind. 334 ; Bloodgood v. Mohawk and Hudson Railroad Co., 
18 Wend. 53. 

2 Lindsay o. Commissioners, &c, 2 Bay, 61. 

3 There are at least two cases in American judicial history where judges have 
been impeached as criminals for refusing to enforce unconstitutional enactments. 

[ 176 ] 

, 7L • '' ^ 



CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. * 161 

* I. In view of the considerations which have been sug- [* 161] 
gested, the rule which is adopted by some courts, that they 

One of these — the case of Trevett v. Weedon, decided by the Superior Court of 
Rhode Island in 1786 — is particularly interesting as being the first case in which 
a legislative enactment was declared unconstitutional and void on the ground of 
incompatibility with the State constitution. Mr. Arnold, in his history of Rhode 
Island, vol. 2, ch. 24, gives an account of this case; and the printed brief in 
opposition to the law, and in defence of the impeached judges, is in possession 
of the present writer. The act in question was one which imposed a heavy 
penalty on any one who should refuse to receive on the same terms as specie the 
bills of a bank chartered by the State, or who should in any way discourage 
the circulation of such bills. The penalty was made collectible on summary 
conviction, without jury trial ; and the act was held void on the ground that jury 
trial was expressly given by the colonial charter, which then constituted the 
constitution of the State. Although the judges were not removed on impeach- 
ment, the legislature refused to re-elect them when their terms expired at the 
end of the year, and supplanted them by more pliant tools, by whose assistance 
the paper money was forced into circulation, and public and private debts extin- 
guished by means of it. Concerning the other case, we copy from the Western 
Law Monthly, " Sketch of Hon. Calvin Pease," vol. 5, p. 3, June, 1863 : " The 
first session of the Supreme Court [of Ohio] under the constitution was held at 
Warren, Trumbull County, on the first Tuesday of June, 1803. The State was 
divided into three circuits. . . . The third circuit of the State was composed of 
the counties of Washington, Belmont, Jefferson, Columbiania, and Trumbull. 
At this session of the legislature, Mr. Pease was appointed President Judge of 
the Third Circuit in April, 1803, and though nearly twenty-seven years old, he 
was very youthful in his appearance. He held the office until March 4, 1810, 
when he sent his resignation to Governor Huntingdon. . . . During his term of 
service upon the bench many interesting questions were presented for decision, 
and among them the constitutionality of some portion of the act of 1805, defining 
the duties of justices of the peace ; and he decided that so much of the fifth 
section as gave justices of the peace jurisdiction exceeding $20, and so much of 
the twenty-ninth section as prevented plaintiffs from recovering costs in actions 
commenced by original writs in the Court of Common Pleas, for sums between 
$20 and $50, were repugnant to the Constitution of the United States and of the 
State of Ohio, and therefore null and void. . . . The clamor and abuse to which 
this decision gave rise was not in the least mitigated or diminished by the circum- 
stance that it was concurred in by a majority of the judges of the Supreme Court, 
Messrs. Huntingdon and Tod. ... At the session of the legislature of 1807-8, 
steps were taken to impeach him and the judges of the Supreme Court who con- 
curred with him ; but the resolutions introduced into the house were not acted 
upon during the session. But the scheme was not abandoned. At an early day 
of the next session, and with almost indecent haste, a committee was appointed 
to inquire into the conduct of the offending judges, and with leave to exhibit 
articles of impeachment, or report otherwise, as the facts might justify. The 
committee without delay reported articles of impeachment against Messrs. Pease 

12 [ 177 ] 



* 162 CONSTITUTIONAL LIMITATIONS. [CH. VII. 

[* 162] will not * decide a legislative act to be unconstitutional by 
a majority of a bare quorum of the judges only, — less than 
a majority of all, — but will instead postpone the argument until 
the bench is full, seems a very prudent and proper precaution to 
be observed before entering upon questions so delicate and so im- 
portant. The benefit of the wisdom and deliberation of every 
judge ought to be had under circumstances so grave. Something 
more than private rights are involved ; the fundamental law of the 
State is in question, as well as the correctness of legislative action ; 
and considerations of courtesy, as well as the importance of the 
question involved, should lead the court to decline to act at all, 
where they cannot sustain the legislative action, until a full bench 
has been consulted, and its deliberate opinion is found to be against 
it. But this is a rule of propriety, not of constitutional obligation ; 
and though generally adopted and observed, each court will regu- 
late, in its own discretion, its practice in this particular. 1 

and Tod, but not against Huntingdon, who in the mean time had been elected 
governor of the State. . . . The articles of impeachment were preferred by the 
House of Representatives on the 23d day of December, 1808. He was sum- 
moned at once to appear before the Senate as a high court of impeachment, and 
he promptly obeyed the summons. The managers of the prosecution on the 
part of the House were Thomas Morris, afterwards Senator in Congress from 
Ohio, Joseph Sharp, James Pritchard, Samuel Marrett, and OthnielTooker. . . . 
Several days were consumed in the investigation, but the trial resulted in the 
acquittal of the respondent." Sketch of Hon. George Tod, August number of 
same volume : " At the session of the legislature of 1808-9, he was impeached 
for concurring in decisions made by Judge Pease, in the counties of Trumbull 
and Jefferson, that certain provisions of the act of the legislature, passed in 
1805, defining the duties of justices of the peace, were in conflict with the Con- 
stitution of the United States and of the State of Ohio, and therefore void. 
These decisions of the courts of Common Pleas and of the Supreme Court, it 
was insisted, were not only an assault upon the wisdom and dignity, but also 
upon the supremacy of the legislature, which passed the act in question. This 
could not be endured; and the popular fury against the judges rose to a very 
high pitch, and the senator from the county of Trumbull in the legislature at 
that time, Calvin Cone, Esq., took no pains to soothe the offended dignity of the 
members of that body, or their sympathizing constituents, but pressed a con- 
trary line of conduct. The udges must be brought to justice, he insisted 
vehemently, and be punished, so that others might be terrified by the example, 
and deterred from committing similar offences in the future. The charges against 
Mr. Tod were substantially the same as those against Mr. Pease. Mr. Tod was 
first tried, and acquitted. The managers of the impeachment, as well as the 
result, were the same in both cases." 

1 Briscoe v. Commonwealth Bank of Kentucky, 8 Pet. 118. It has been 

[178] 



CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. * 163 

* II. Neither will a court, as a general rule, pass upon a [* 163] 
constitutional question, and decide a statute to be invalid, 
unless a decision upon that very point becomes necessary to the 
determination of the cause. " While the courts cannot shun the 
discussion of constitutional questions when fairly presented, they 
will not go out of their way to find such topics. They will not seek 
to draw in such weighty matters collaterally, nor on trivial occa- 
sions. It is both more proper and more respectful to a co-ordinate 
department to discuss constitutional questions only when that is 
the very lis mota. Thus presented and determined, the decision 
carries a weight with it to which no extra-judicial disquisition is 
entitled." l In any case, therefore, where a constitutional question 
is raised, though it may be legitimately presented by the record, 
yet if the record also presents some other and clear ground upon 

intimated that inferior courts should not presume to pass upon constitutional 
questions, but ought in all cases to treat statutes as valid. Ortman v. Greenman, 
4 Mich. 291. But no tribunal can exercise judicial power, unless it is to decide 
according to its judgment ; and it is difficult to discover any principle of justice 
■which can require a magistrate to enter upon the execution of a statute when he 
believes it to be invalid, especially when he must thereby subject himself to 
prosecution, without any indemnity in the law if it proves to be invalid. Undoubt- 
edly when the highest courts in the land hesitate to declare a law unconsti- 
tutional, and allow much weight to the legislative judgment, the inferior courts 
should be still more reluctant to exercise this power, and a becoming modesty 
would at least be expected of those judicial officers who have not been trained 
to the investigation of legal and constitutional questions. But in any case a 
judge or justice, being free from doubt in his own mind, and unfettered by any 
judicial decision properly binding upon him, must follow his own sense of duty 
upon constitutional as well as upon any other questions. See Miller v. State, 
3 Ohio, n. s. 483; Pirn v. Nicholson, 6 Ohio, n. s. 180; Mayberry v. Kelly, 
1 Kansas, 116. In the case last cited it is said: " It is claimed by counsel for 
the plaintiff in error, that the point raised by the instruction is, that inferior 
courts and ministerial officers have no right to judge of the constitutionality of a 
law passed by a legislature. But is this law ? If so, a court created to interpret 
the law must disregard the constitution in forming its opinions. The constitution 
is law, — the fundamental law, — and must as much be taken into consideration 
by a justice of the peace as by any other tribunal. When two laws apparently 
conflict, it is the duty of all courts to construe them. If the conflict is irrec- 
oncilable, they must decide which is to prevail ; and the constitution is not an 
exception to this rule of construction. If a law were passed in open, flagrant 
violation of the constitution, should a justice of the peace regard the law, and 
pay no attention to the constitutional provision? If that is his duty in a plain 
case, is it less so when the construction becomes more difficult ? " 

1 Hoover v. Wood, 9 Ind. 287 ; Ireland v. Turnpike Co., 19 Ohio, n. s. 373. 

[179] 



* 163 CONSTITUTIONAL LIMITATIONS. [CH. VII. 

which the court may rest its judgment, and thereby render the 
constitutional question immaterial to the case, that course will be 
adopted, and the question of constitutional power will be left for 
consideration until a case arises which cannot be disposed of with- 
out considering it, and when consequently a decision upon such 
question will be unavoidable. 1 

III. Nor will a court listen to an objection made to the constitu- 
tionality of an act by a party whose rights it does not affect, and 
who has therefore no interest in defeating it. On this ground it 
has been held that the objection that a legislative act was 
unconstitutional, because divesting the rights of remainder-men 
against their will, could not be successfully urged by the owner of 

the particular estate, and could only be made on behalf 
[* 164] * of the remainder-men themselves. 2 And a party who has 

assented to his property being taken under a statute 
cannot afterwards object that the statute is in violation of a 
provision in the constitution designed for the protection of private 
property. 3 The statute is assumed to be valid, until some one 
complains whose rights it invades. " Prima facie, and on the face 
of the act itself, nothing will generally appear to show that the act 
is not valid ; and it is only when some person attempts to resist its 
operation, and calls in the aid of the judicial power to pronounce 
it void, as to him, his property or his rights, that the objection of 
unconstitutionality can be presented and sustained. Respect for 
the legislature, therefore, concurs with well-established principles 
of law in the conclusion that such an act is not void, but voidable 
only ; and it follows, as a necessary legal inference from this 
position, that this ground of avoidance can be taken advantage of 
by those only who have a right to question the validity of the act, 
and not by strangers. To this extent only is it necessary to go, in 
order to secure and protect the rights of all persons against the 
unwarranted exercise of legislative power, and to this extent only, 
therefore, are courts of justice called on to interpose." 4 

1 Ex parte Randolph, 2 Brock. 447; Frees v. Ford, 6 N. Y. 177, 178; 
White v. Scott, 4 Barb. 56 ; Mobile and Ohio Railroad Co. v. State, 29 Ala. 573. 

2 Sinclair v. Jackson, 8 Cow. 543. See also Smith v. McCarthy, 56 Penn. 
St. 359 ; Antoni v. Wright, 22 Grat. 857. 

3 Embury v. Conner, 3 N. Y. 511 ; Baker v. Braman, 6 Hill, 47 ; Mobile and 
Ohio Railroad Co. v. State, 29 Ala. 586. 

4 Wellington, Petitioner, 16 Pick. 96. And see Hingham, &c, Turnpike Co. 

[180] 



CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. * 16-1 

IV. Nor can a court declare a statute unconstitutional and void, 
solely on the ground of unjust and oppressive provisions, or 
because it is supposed to violate the natural, social, or political 
rights of the citizen, unless it can be shown that such injustice is 
prohibited or such rights guaranteed or protected by the constitu- 
tion. It is true there are some reported cases in which judges 
have been understood to intimate a doctrine different from what 
is here asserted ; but it will generally be found, on an examination 
of those cases, that what is said is rather by way of argument and 
illustration, to show the unreasonableness of putting upon consti- 
tutions such a construction as would permit legislation of the 
objectionable character then in question, and to induce a more 
cautious and patient examination of the statute, with a 
view to * discover in it, if possible, some more just and [* 165] 
reasonable legislative intent, than as laying down a rule 
by which courts would be at liberty to limit, according to their 
own judgment and sense of justice and propriety, the extent of 
legislative power in directions in which the constitution had im- 
posed no restraint. Mr. Justice Story, in one case, in examining 
the extent of power granted by the charter of Rhode Island, 
which authorized the General Assembly to make laws in the most 
ample manner, " so as such laws, &c, be not contrary and repug- 
nant unto, but as near as may be agreeable to, the laws of Eng- 
land, considering the nature and constitution of the place and 
people there," expresses himself thus : " What is the true extent 
of the power thus granted must be open to explanation as well by 
usage as by construction of the terms in which it is given. In 
a government professing to regard the great rights of personal 
liberty and of property, and which is required to legislate in sub- 
ordination to the general laws of England, it would not lightly 
be presumed that the great principles of Magna Charta were to be 
disregarded, or that the estates of its subjects were liable to be 
taken away without trial, without notice, and without offence. 
Even if such authority could be deemed to have been confided by 
the charter to the General Assembly of Rhode Island, as an exer- 
tt . Norfolk Co., 6 Allen, 353; De Jarnette v. Haynes, 23 Miss. 600; Sinclair v. 
Jackson, 8 Cow. 543, 579 ; Hey ward v. Mayor, &c, of New York, 8 Barb. 489 ; 
Matter of Albany St., 11 Wend. 149; Williamson v. Carlton, 51 Me. 449; State 
v. Rich, 20 Miss. 393. 

[181] 



* 165 CONSTITUTIONAL LIMITATIONS. [CH. VII. 

cise of transcendental sovereignty before the Revolution, it can 
scarcely be imagined that that great event could have left the 
people of that State subjected to its uncontrolled and arbitrary 
exercise. That government can scarcely be deemed to be free, 
where the rights of property are left solely dependent upon the 
will of a legislative body, without any restraint. The fundamental 
maxims of a free government seem to require that the rights of 
personal liberty and private property should be held sacred. At 
least no court of justice in this country would be warranted in 
assuming that the power to violate and disregard them — a power 
so repugnant to the common principles of justice and civil liberty 
— lurked under any general grant of legislative authority, or 
ought to be implied from any general expressions of the will of the 
people. The people ought not to be presumed to part with rights 
so vital to their security and well-being, without very strong and 
direct expressions of such an intention." " We know of no case in 
which a legislative act to transfer the property of A. to B., without 

his consent, has ever been held a constitutional exercise of 
[* 166] legislative power in any State in * the Union. On the 

contrary, it has been constantly resisted, as inconsistent 
with just principles, by every judicial tribunal in which it has been 
attempted to be enforced." i The question discussed by the 
learned judge in this case is perceived to have been, What is the 
scope of a grant of legislative power to be exercised in conformity 
with the laws of England ? Whatever he says is pertinent to that 
question ; and the considerations he suggests are by way of argu- 
ment to show that the power to do certain unjust and oppressive 

1 Wilkinson v. Leland, 2 Pet. 657. See also what is said by the same judge 
in Terrett v. Taylor, 9 Cranch, 43. " It is clear that statutes passed against plain 
and obvious principles of common right and common reason are absolutely null 
and void, so far as they are calculated to operate against those principles." Ham 
v. McClaws, 1 Bay, 98. But the question in that case was one of construction; 
whether the court should give to a statute a construction which would make it 
operate against common right and common reason. In Bowman v. Middleton, 1 
Bay, 282, the court held an act which divested a man of his freehold and passed 
it over to another, to be void " as against common right as well as against Magna 
Charta." In Regents of University v. Williams, 9 Gill & J. 365, it was said 
that an act was void as opposed to fundamental principles of right and justice 
inherent in the nature and spirit of the social compact. But the court had 
already decided that the act was opposed, not only to the constitution of the 
State, but to that of the United States also. See Mayor, &c, of Baltimore 
v. State, 15 Md. 376. 

[182] 



CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. * 166 

acts was not covered by the grant of legislative power. It is not 
intimated that if they were within the grant, they would be im- 
pliedly prohibited because unjust and oppressive. 

In another case arising in the Supreme Court of New York, 
one of the judges, in considering the rights of the city of New 
York to certain corporate property, has said : " The inhabitants 
of the city of New York have a vested right in the City Hall, mar- 
kets, water-works, ferries, and other public property, which cannot 
be taken from them any more than their individual dwellings or 
storehouses. Their rights, in this respect, rest not merely upon 
the constitution, but upon the great principles of eternal justice 
which lie at the foundation of all free governments." 1 The great 
principles of eternal justice which affected the particular case 
had been incorporated in the constitution ; and it therefore be- 
came unnecessary to consider what would otherwise have been 
the rule ; nor do we understand the court as intimating any 
opinion upon that subject. It was sufficient for the case, 
to find. * that the principles of right and justice had been [* 167] 
recognized and protected by the constitution, and that the 
people had not assumed to confer upon the legislature a power to 
deprive the city of rights which did not come from the constitution, 
but from principles antecedent to and recognized by it. 

So it is said by Rosmer, Ch. J., in a Connecticut case: " With 
those judges who assert the omnipotence of the legislature in all 
cases where the constitution has not interposed an explicit re- 
straint, I cannot agree. Should there exist — what I know is not 
only an incredible supposition, but a most remote improbability — 
a case of direct infraction of vested rights, too palpable to be ques- 
tioned and too unjust to admit of vindication, I could not avoid 
considering it as a violation of the social compact, and within the 
control of the judiciary. If, for example, a law were made without 
any cause to deprive a person of his property, or to subject him to 
imprisonment, who would not question its legality, and who would 
aid in carrying it into effect ? On the other hand I cannot harmo- 
nize with those who deny the power of the legislature, in any case, 
to pass laws which, with entire justice, operate on antecedent legal 
rights. A retrospective law may be just and reasonable, and the 
right of the legislature to enact one of this description I am not 

1 Benson v. Mayor, &c, of New York, 10 Barb. 244. 

[183] 



* 167 CONSTITUTIONAL LIMITATIONS. [CH. VII. 

speculatist enough to question." 1 The cases here supposed of 
unjust and tyrannical enactments would probably be held not to 
be within the power of any legislative body in the Union. One 
of them would be clearly a bill of attainder ; the other, unless it 
was in the nature of remedial legislation, and susceptible of being 
defended on that theory, would be an exercise of judicial power, 
and therefore in excess of legislative authority, because not included 
in the apportionment of power made to that department. No ques- 
tion of implied prohibition would arise in either of these cases ; 
but if the grant of power had covered them, and there had been 
no express limitation, there would, as it seems to us, be very 
great probability of unpleasant and dangerous conflict of author- 
ity if the courts were to deny validity to legislative action on 
subjects within their control, on the assumption that the legis- 
lature had disregarded justice or sound policy. The moment 
a court ventures to substitute its own judgment for that of the 
legislature, in any case where the constitution has vested the 
legislature with power over the subject, that moment it 
[* 168] enters *upon a field where it is impossible to set limits to 
its authority, and where its discretion alone will measure 
the extent of its interference. 2 

The rule of law upon this subject appears to be, that, except 
where the constitution has imposed limits upon the legislative 
power, it must be considered as practically absolute, whether it 

1 Goshen v. Stonington, 4 Conn. 225. 

2 " If the legislature should pass a law in plain and unequivocal language, 
within the general scope of their constitutional powers, I know of no authority 
in this government to pronounce such an act void, merely because, in the opinion 
of the judicial tribunals, it was contrary to the principles of natural justice ; 
for this would be vesting in the court a latitudinarian authority which might be 
abused, and would necessarily lead to collisions between the legislative and 
judicial departments, dangerous to the well-being of society, or at least not in 
harmony with the structure of our ideas of natural government." Per Rogers, J., 
in Commonwealth v. McCloskey, 2 Rawle, 374. " All the courts can do with 
odious statutes is to chasten their hardness by construction. Such is the imper- 
fection of the best human institutions, that, mould them as we may, a large dis- 
cretion must at last be rei>osed somewhere. The best and in many cases the 
only security is in the wisdom and integrity of public servants, and their identity 
with the people. Governments cannot be administered without committing powers 
in trust and confidence." Beebe v. State, G Ind. 528, per Stuart, J. And see 
Johnston v. Commonwealth, 1 Bibb, 603 ; Flint River Steamboat Co. v. Foster, 
5 Geo. 194 ; State v. Kruttschnitt, 4 Nev. 178. 

[184] 



CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. * 168 

operate according to natural justice or not in any particular case. 
The courts are not the guardians of the rights of the people of the 
State, except as those rights are secured by some constitutional 
provision which comes within the judicial cognizance. The protec- 
tion against unwise or oppressive legislation, within constitutional 
bounds, is by an appeal to the justice and patriotism of the repre- 
sentatives of the people. If this fail, the people in their sovereign 
capacity can correct the evil ; but courts cannot assume their 
rights. 1 The judiciary can only arrest the execution of a statute 
when it conflicts with the constitution. It cannot run a race of 
opinions upon points of right, reason, and expediency with the law- 
making power. 2 Any legislative act which does not encroach upon 
the powers apportioned to the other departments of the govern- 
ment, being prima facie valid, must be enforced, unless restrictions 
upon the legislative authority can be pointed out in the constitu- 
tion, and the case shown to come within them. 3 

1 Bennett v. Bull, Baldw. 74. 

2 Perkins, J., in Madison & Indianapolis Railroad Co. v. Whiteneck, 8 Ind. 
222 : Bull v. Read, 13 Grat. 98, per Lee, J. 

3 Sill v. Village of Corning, 15 N. Y. 303 ; Varick v. Smith, 5 Paige, 137 ; 
Cochran v. Van Surlay, 20 Wend. 365 ; Morris v. People, 3 Denio, 381 ; Wyne- 
hauier v. People, 13 N. Y. 430 ; People v. Supervisors of Orange, 17 N. Y. 235 ; 
People v. New York Central Railroad Co., 34 Barb. 138 ; People v. Toynbee, 2 
Park. Cr. R. 490; Dow v. Norris, 4 N. H. 16 ; Derby Turnpike Co. v. Parks, 10 
Conn. 522, 543 ; Hartford Bridge Co. v. Union Ferry Co., 29 Conn. 210 ; Holden 
v. James, 11 Mass. 396 ; Norwich v. County Commissioners, 13 Pick. 60; Daw- 
son v. Shaver, 1 Blackf. 206 ; Beauchamp v. State, 6 Blackf. 305 ; Doe v. Doug- 
lass, 8 Blackf. 10 ; Maize v. State, 4 Ind. 342 ; Stocking v. State, 7 Ind. 327 ; 
Beebe v. State, 6 Ind. 528; Newland v. Marsh, 19 111. 376, 384; Bliss v. Com- 
monwealth, 2 Litt. 90 ; State v. Ashley, 1 Ark. 513 ; Campbell v. Union Bank, 
6 How. Miss. 672 ; Tate's Ex'r v. Bell, 4 Yerg. 206 ; Andrews v. State, 3 Heis. 
165; s. c. 8 Am. Rep. 8; Whittington v. Polk, 1 Harr. & J. 236; Norris v. 
Abingdon Academy, 7 Gill. & J. 7 ; Harrison v. State, 22 Md. 491; State v. 
Lyles, 1 McCord, 238; Myers v. English, 9 Cal. 341; Ex parte Newman, ib. 
502 ; Hobart v. Supervisors, 17 Cal. 23 ; Crenshaw v. Slate River Co., 6 Rand. 
245; Lewis v. AVebb, 3 Greenl. 326; Durham v. Lewiston, 4 Greenl. 140; 
Lunt's Case, 6 Greenl. 412 ; Scott v. Smart's Ex'rs, 1 Mich. 306 ; Williams v. 
Detroit, 2 Mich. 560 ; Tyler v. People, 8 Mich. 320 ; Cotton v. Commissioners 
of Leon County, 6 Fla. 610; State v. Robinson, 1 Kansas, 27; Santo v. State, 
2 Iowa, 165; Morrison v. Springer, 15 Iowa, 304; Stoddart v. Smith, 5 Binn. 
355 ; Moore v. Houston. 3 S. & R. 169 ; Braddee v. Brownfield, 2 W. & S. 271 ; 
Harvey v. Thomas, 10 Watts, 63 ; Commonwealth v. Maxwell, 27 Penn. St. 
456 ; Carey v. Giles, 9 Geo. 253 ; Macon and Western Railroad Co. v. Davis, 
13 Geo. 68 ; Franklin Bridge Co. v. Wood, 14 Geo. 80 ; Boston v. Cummins, 16 

[185] 



* 169 CONSTITUTIONAL LIMITATIONS. [CH. VII. 

[* 169] * V. If the courts are not at liberty to declare statutes 
void because of their apparent injustice or impolicy, neither 
can they do so because they appear to the minds of the judges to 
violate fundamental principles of republican government, unless it 
shall be found that those principles are placed beyond legislative 
encroachment by the constitution. The principles of republican 
government are not a set of inflexible rules, vital and active in 
the constitution, though unexpressed, but they are subject to 
variation and modification from motives of policy and public 
necessity ; and it is only in those particulars in which experience 
has demonstrated any departure from the settled practice to work 
injustice or confusion, that we shall discover an incorporation of 
them in the constitution in such form as to make them definite 
rules of action under all circumstances. It is undoubtedly a 
maxim of republican government, as we understand it, that 
taxation and representation should be inseparable ; but where the 
legislature interferes, as in many cases it may do, to compel taxa- 
tion by a municipal corporation for local purposes, it is evident 
that this maxim is applied in the case in a much restricted 
[* 170] and very imperfect sense only, since the * representation 
of the locality taxed is but slight in the body imposing 
the tax, and the burden may be imposed, not only against the pro- 
test of the local representative, but against the general opposition 
of the municipality. The property of married women is taxable, 
notwithstanding they are not allowed a voice in choosing repre- 
sentatives. 1 The maxim is not entirely lost sight of in such cases, 
but its application in the particular case, and the determination 
how far it can properly and justly be made to yield to considerations 
of policy and expediency, must rest exclusively with the law-making 
power, in the absence of any definite constitutional provisions so 
embodying the maxim as to make it a limitation upon legislative 
authority. 2 It is also a maxim of republican government that local 

Geo. 102 ; Van Home v. Dorrance, 2 Dall. 309 ; Calder v. Bull, 3 Dall. 386 ; 
Cooper v. Telfair, 4 Dall. 18 ; Fletcher v. Peck, 6 Cranch, 128. 

1 Wheeler v. Wall, 6 Allen, 558. 

2 " There are undoubtedly fundamental principles of morality and justice which 
no legislature is at liberty to disregard, but it is equally undoubted that no 
court, except in the clearest cases, can properly impute the disregard of those 
principles to the legislature. . . . This court can know nothing of public policy 
except from the constitution and the laws, and the course of administration and 

[186] 



CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. * 170 

concerns shall be managed in the local districts, which shall choose 
their own administrative and police officers, and establish for them- 
selves police regulations ; but this maxim is subject to such excep- 
tions as the legislative power of the State shall see fit to make ; and 
when made, it must be presumed that the public interest, con- 
venience, and protection are subserved thereby. 1 The State may 
interfere to establish new regulations against the will of the local 
constituency ; and if it shall think proper in any case to assume 
to itself those powers of local police which should be executed by 
the people immediately concerned, we must suppose it has been 
done because the local administration has proved imperfect and 
inefficient, and a regard to the general well-being has demanded 
the change. In these cases the maxims which have prevailed in 
the government address themselves to the wisdom of the legis- 
lature, and to adhere to them as far as possible is doubtless to 
keep in the path of wisdom ; but they do not constitute restrictions 
so as to warrant the other departments in treating the exceptions 
which are made as unconstitutional. 2 

decision. It has no legislative powers. It cannot amend or modify any legis- 
lative acts. It cannot examine questions as expedient or inexpedient, as pol- 
itic or impolitic. Considerations of that sort must in general be addressed to 
the legislature. Questions of policy there are concluded here." Chase, Ch, J., 
in License Tax Cases, 5 Wall. 469. 

1 People v. Draper, 15 N. Y. 547. Seejoosif, p. 191, 192. 

2 In People v. Mahaney, 13 Mich. 500, where the Metropolitan Police Act of 
Detroit was claimed to be unconstitutional on various grounds, the court say : 
"Besides the specific objections made to the act as opposed to the provisions of 
the constitution, the counsel for respondent attacks it on ' general principles, 1 and 
especially because violating fundamental principles in our system, that govern- 
ments exist-by consent of the governed, and that taxation and representation go 
together. The taxation under the act, it is said, is really in the hands of a police 
board, a body in the choice of which the people of Detroit have no voice. This 
argument is one which might be pressed upon the legislative department with 
great force, if it were true in point of fact. But as the people of Detroit are 
really represented throughout, the difficulty suggested can hardly be regarded as 
fundamental. They were represented in the legislature which passed the act, 
and had the same proportionate voice there with the other municipalities in the 
State, all of which receive from that body their powers of local government, and 
such only as its wisdom shall prescribe within the constitutional limit. They were 
represented in that body when the present police board were appointed by it, 
and the governor, who is hereafter to fill vacancies, will be chosen by the State 
at large, including their city. There is nothing in the maxim that taxation and 
representation go together which requires that the body paying the tax shall 

[187] 



* 171 CONSTITUTIONAL LIMITATIONS. [CH. VII. 

[* 171] * VI. Nor are the courts at liberty to declare an act 
void, because in their opinion it is opposed to a spirit sup- 
posed to pervade the constitution, but not expressed in words. 
" When the fundamental law has not limited, either in terms or by 
necessary implication, the general powers conferred upon the legis- 
lature, we cannot declare a limitation under the notion of having 
discovered something in the spirit of the constitution which is 
not even mentioned in the instrument." * " It is difficult," says 
Mr. Senator Verplanck, " upon any general principles, to limit 
the omnipotence of the sovereign legislative power by judicial 
interposition, except so far as the express words of a written con- 
stitution give that authority. There are indeed many dicta and 
some great authorities holding that acts contrary to the first 
principles of right are void. The principle is unquestion- 
[* 172] ably * sound as the governing rule of a legislature in rela- 
tion to its own acts, or even those of a preceding legislature. 
It also affords a safe rule of construction for courts, in the inter- 
pretation of laws admitting of any doubtful construction, to pre- 
sume that the legislature could not have intended an unequal and 
unjust operation of its statutes. Such a construction ought never 
to be given to legislative language if it be susceptible of any other 
more conformable to justice ; but if the words be positive and 
without ambiguity, I can find no authority for a court to vacate or 

alone be consulted in its assessment; and if there were, we should find it violated 
at every turn in our system. The State legislature not only has a control in this 
respect over inferior municipalities, which it exercises by general laws, but it 
sometimes finds it necessary to interpose its power in special cases to prevent 
unjust or burdensome taxation, as well as to compel the performance of a clear 
duty. The constitution itself, by one of the clauses referred to. requires the 
legislature to exercise its control over the taxation of municipal corporations, by 
restricting it to what that body may regard as proper bounds. And municipal 
bodies are frequently compelled most unwillingly to levy taxes for the payment 
of claims, by the judgments or mandates of courts in which their representation 
is quite as remote as that of the people of Detroit in this police board. It can- 
not therefore be said that the maxims referred to have been entirely disregarded 
by the legislature in the passage of this act. But as counsel do not claim that, 
in so far as they have been departed from, the constitution has been violated, we 
cannot, with propriety, be asked to declare an act void on any such general 
objection." And see Wynehamer v. People, 13 N. Y. 429, per Selden, J. ; 
Benson v. Mayor, &c, of Albany, 24 Barb. 256 et seq. ; Baltimore v. State, 15 
Md. 376 ; People v. Draper, 15 N. Y. 532 ; White v. Stamford, 37 Conn. 587. 
1 People v. Fisher, 24 Wend. 220; State v. Staten, 6 Cold. 233. 
[188] 



CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. * 172 

repeal a statute on that ground alone. But it is only in express 
constitutional provisions, limiting legislative power and controlling 
the temporary will of a majority, by a permanent and paramount 
law, settled by the deliberate wisdom of the nation, that I can 
find a safe and solid ground for the authority of courts of justice 
to declare void any legislative enactment. Any assumption of 
authority beyond this would be to place in the hands of the 
judiciary powers too great and too undefined either for its own 
security or the protection of private rights. It is therefore a 
most gratifying circumstance to the friends of regulated liberty, 
that in every change in their constitutional polity which has yet 
taken place here, whilst political power has been more widely 
diffused among the people, stronger and better-defined guards 
have been given to the rights of property." And after quoting 
certain express limitations, he proceeds : " Believing that we are 
to rely upon these and similar provisions as the best safeguards 
of our rights, as well as the safest authorities for judicial direction, 
I cannot bring myself to approve of the power of courts to annul 
any law solemnly passed, either on an assumed ground of its being 
contrary to natural equity, or from a broad, loose, and vague in- 
terpretation of a constitutional provision beyond its natural and 
obvious sense.'" 1 

The accepted theory upon this subject appears to be this : In 
every sovereign State there resides an absolute and uncontrolled 
power of legislation. In Great Britain this complete power rests 
in the Parliament : in the American States it resides in the people 
themselves as an organized body politic. But the people, 
by * creating the Constitution of the United States, have [* 173] 
delegated this power as to certain subjects, and under 
certain restrictions to the Congress of the Union ; and that 
portion they cannot resume, except as it may be done through 
amendment of the national Constitution. For the exercise of the 
legislative power, subject to this limitation, they create, by their 
State constitution, a legislative department upon which they confer 
it ; and granting it in general terms, they must be understood to 
grant the whole legislative power which they possessed, except so 

1 Cochran v. Van Surlay, 20 Wend. 381-383. See also People v. Gallagher, 
4 Mich. 244 ; Benson v. Mayor, &c., of Albany, 24 Barb. 252 et seq. ; Grant v. 
Courter, ib. 232 ; Wynehamer v. People, 13 N. Y. 391, per Comsiock, J. ; ib. 
p. 453, per Selden, J. ; ib. p. 477, per Johnson, J. 

[189] 



* 173 CONSTITUTIONAL LIMITATIONS. [CH. VII. 

far as at the same time they saw fit to impose restrictions. While, 
therefore, the Parliament of Britain possesses completely the abso- 
lute and uncontrolled power of legislation, the legislative bodies of 
the American States possess the same power, except, first, as it 
may have been limited by the Constitution of the United States ; 
and, second, as it may have been limited by the constitution of 
the State. A legislative act cannot, therefore, be declared void, 
unless its conflict with one of these two instruments can be pointed 
out. 1 

It is to be borne in mind, however, that there is a broad dif- 
ference between the Constitution of the United States and the 
constitutions of the States as regards the power which may be 
exercised under them. The government of the United States is 
one of enumerated powers ; the governments of the States are 
possessed of all the general powers of legislation. When a law 
of Congress is assailed as void, we look in the national Constitu- 
tion to see if the grant of specified powers is broad enough to 
embrace it; but when a State law is attacked on the same ground, 
it is presumably valid in any case, and this presumption is a con- 
clusive one, unless in the Constitution of the United States or of 
the State we are able to discover that it is prohibited. We look 
in the Constitution of the United States for grants of legislative 
power, but in the constitution of the State to ascertain if any 
limitations have been imposed upon the complete power with 
which the legislative department of the State was vested in its 
creation. Congress can pass no laws but such as the Constitution 
authorizes either expressly or by clear implication ; while the 
State legislature has jurisdiction of all subjects on which its 
legislation is not prohibited. 2 " The law-making power of 
[* 174] the * State," it is said in one case, " recognizes no re- 
straints, and is bound by none, except such as are imposed 
by the constitution. That instrument has been aptly termed a 

1 People v. New York Central Railroad Co., 34 Barb. 138 ; Gentry v. Grif- 
fith, 27 Texas, 461. And see the eases cited, ante, p. 168, note 4. 

2 Sill v. Village of Coming, 15 N. Y. 303 ; People v. Supervisors of Orange, 
27 Barb. 593 ; People v Gallagher, 4 Mich. 244 ; Sears v. Cottrell, 5 Mich. 257 ; 
People v. New York Central Railroad Co., 24 N. Y. 497, 504; People v. 
Toynbee, 2 Park. Cr. R. 490; State v. Gutierrez, 15 La. An. 190; Walpole v. 
Elliott, 18 Ind. 258 ; Smith v. Judge, 17 Cal. 547 ; Commonwealth v. Hartman, 
17 Penn. St. 119 ; Kirby v. Shaw, 19 Penn. St. 260; Weister v. Hade, 52 Penn. 
St. 477. 

[190] 



CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. * 174 

legislative act by the people themselves in their sovereign capacity, k 
and is therefore the paramount law. Its object is not to grant 
legislative power, but to confine and restrain it. Without the 
constitutional limitations, the power to make laws would be abso-/ 
lute. These limitations are created and imposed by express words, 
or arise by necessary implication. The leading feature of the con- 
stitution is the separation and distribution of the powers of the 
government. It takes cue to separate the executive, legislative, 
and judicial powers, and to define their limits. The executive can 
do no legislative act, nor the legislature any executive act, and 
neither can exercise judicial authority." 1 

It does not follow, however, that in every case the courts, be- 
fore they can set aside a law as invalid, must be able to find in 
the constitution some specific inhibition which has been disre- 
garded, or some express command which has been disobeyed. 
Prohibitions are only important where they are in the nature of 
exceptions to a general grant of power ; and if the authority to 
do an act has not been granted by the sovereign to its represent- 
ative, it cannot be necessary to prohibit its being done. If in 
one department was vested the whole power of the government, 
it might be essential for the people, in the instrument delegating 
this complete authority, to make careful and particular exception 
of all those cases which it was intended to exclude from its cog- 
nizance ; for without such exception the government might do 
whatever the people themselves, when met in their sovereign 
capacity, would have power to do. But when only the legislative 
power is delegated to one department, and the judicial to another, 
it is not important that the one should be expressly forbidden to 
try causes, or the other to make laws. The assumption of judi- 
cial power by the legislature in such a case is unconstitutional, 
because, though not expressly forbidden, it is nevertheless 
* inconsistent with the provisions which have conferred [* 175] 
upon another department the power the legislature is 
seeking to exercise. 2 And for similar reasons a legislative act 
which should undertake to make a judge the arbiter in his own 
controversies would be void, because, though in form a provision 
for the exercise of judicial power, in substance it would be the crea- 

' Sill v. Corning, 15 N. Y. 303. 
2 Ante, p. 87-114, and cases cited. 

[ 191 ] 



* 175 CONSTITUTIONAL LIMITATIONS. [CH. VII. 

tion of an arbitrary and irresponsible authority, neither legislative, 
executive, nor judicial, and wholly unknown to constitutional 
government. 1 It could not be necessary to forbid the judiciary 
to render judgment without suffering the party to make defence ; 
because it is implied in judicial authority that there shall be a 
hearing before condemnation. 2 Taxation cannot be arbitrary, be- 
cause its very definition includes apportionment, nor can it be for 
a purpose not public, because that would be a contradiction in 
terms. 3 The right of local self-government cannot be taken away, 
because all our constitutions assume its continuance as the un- 
doubted right of the people, and as an inseparable incident to 
republican government. 4 The bills of rights in the American con- 
stitutions forbid that parties shall be deprived of property except 
by the law of the land ; but if the prohibition had been omitted, a 
legislative enactment to pass one man's property over to another 
would nevertheless be void. If the act proceeded upon the assump- 
tion that such other person was justly entitled to the estate, and 
therefore it was transferred, it would be void, because judicial in its 
nature ; and if it proceeded without reasons, it would be equally void, 
as neither legislative nor judicial, but a mere arbitrary fiat. 5 There 
is no difficulty in saying that any such act, which under pretence 
of exercising one power is usurping another, is opposed to the con- 

1 Post, 410-413, and cases cited. 

2 Post, 353-4. On this subject in general, reference is made to those very 
complete recent works, Bigelow on Estoppel and Freeman on Judgments. 

3 Post, ch. 14. And see Curtis v. Whipple, 24 Wis. 350 ; Tyson v. School 
Directors, 51 Penn. St. 9 ; Freeland v. Hastings, 10 Allen, 575 ; Opinions of 
Judges, 58 Me. 590; People v. Bacheller, N.Y. Court of Appeals, Albany 
Law Jour. vol. 8, p. 120; Lowell v. Boston, Sup. Court of Mass., not yet 
reported. 

4 People v. Mayor, &c. of Chicago, 51 111. 31 ; People v. Hurlbut, 24 
Mich. 44. 

5 Bowman v. Middleton, 1 Bay, 252 ; Wilkinson v. Leland, 2 Pet. 657 ; Ter- 
rett v. Taylor, 9 Cranch, 43; Ervine's Appeal, 16 Penn. St. 266. It is now 
considered an universal and fundamental proposition in every well-regulated 
and properly administered government, whether embodied in a constitutional 
form or not, that private property cannot be taken for a strictly private purpose 
at all, nor for public without a just compensation ; and that the obligation of 
contracts cannot be abrogated or essentially impaired. These and other vested 
rights of the citizen are held sacred and inviolable, even against the plenitude 
of power in the legislative department." Nelson, J., in People v. Morris, 13 
Wend. 328. 

[192] 



CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. * 175 

stitution and void. It is assuming a power which the people, if they 
have not granted it at all, have reserved to themselves. The max- 
ims of Magna Charta and the common law are the interpreters of 
constitutional grants of power, and those acts which by those max- 
ims the several departments of government are forbidden to do 
cannot be considered within any grant or apportionment of power 
which the people in general terms have made to those departments. 
The Parliament of Great Britain, indeed, as possessing the 
sovereignty * of the country, has the power to disregard [* 176] 
fundamental principles, and pass arbitrary and unjust en- 
actments ; but it cannot do this rightfully, and it has the power to 
do so simply because there is no written constitution from which 
its authority springs or on which it depends, and by which the 
courts can test the validity of its declared will. The rules which 
confine the discretion of Parliament within the ancient landmarks 
are rules for the construction of the powers of the American legis- 
latures ; and however proper and prudent it may be expressly to 
prohibit those things which are not understood to be within the 
proper attributes of legislative power, such prohibition can never 
be regarded as essential, when the extent of the power apportioned 
to the legislative department is found upon examination not to be 
broad enough to cover the obnoxious authority. The absence of 
such prohibition cannot, by implication, confer power. 

Nor, where fundamental rights are declared by the constitution, 
is it necessary at the same time to prohibit the legislature, in ex- 
press terms, from taking them away. The declaration is itself a 
prohibition, and is inserted in the constitution for the express 
purpose of operating as a restriction upon legislative power. 1 
Many things, indeed, which are contained in the bills of rights to 
be found in the American constitutions, are not, and from the very 
nature of the case cannot be, so certain and definite in character as 
to form rules for judicial decisions ; and they are declared rather 
as guides to the legislative judgment than as marking an absolute 
limitation of power. The nature of the declaration will generally 
enable us to determine without difficulty whether it is the one thing 
or the other. If it is declared that all men are free, and no man 
can be slave to another, a definite and certain rule of action is 
laid down, which the courts can administer ; but if it be said that 

1 Beebe v. State, 6 Ind. 518. This principle is very often acted upon when 
not expressly declared. 

13 [ 193 ] 



* 176 CONSTITUTIONAL LIMITATIONS. [CH. VII. 

" the blessings of a free government can only be maintained by a 
firm adherence to justice, moderation, temperance, frugality, and 
virtue," we should not be likely to commit the mistake of sup- 
posing that this declaration would authorize the courts to substitute 
their own view of justice for that which may have impelled the 
legislature to pass a particular law, or to inquire into the modera- 
tion, temperance, frugality, and virtue of its members, with a view 
to set aside their action, if it should appear to have been 
[* 177] influenced by the opposite qualities. It is plain that * what 
in the one case is a rule, in the other is an admonition 
addressed to the judgment and the conscience of all persons in 
authority, as well as of the people themselves. 

So the forms prescribed for legislative action are in the nature 
of limitations upon its authority. The constitutional provisions 
which establish them are equivalent to a declaration that the 
legislative power shall be exercised under these forms, and shall 
not be exercised under any other. A statute which does not 
observe them will plainly be ineffectual. 1 

Statutes unconstitutional in Part. 

It will sometimes be found that an act of the legislature is 
opposed in some of its provisions to the constitution, while others, 
standing by themselves, would be unobjectionable. So the forms 
observed in passing it may be sufficient for some of the purposes 
sought to be accomplished by it, but insufficient for others. In any 
such case the portion which conflicts with the constitution, or in 
regard to which the necessary conditions have not been observed, 
must be treated as a nullity. Whether the other parts of the 
statute must also be adjudged void because of the association must 
depend upon a consideration of the object of the law, and in what 
manner and to what extent the unconstitutional portion affects the 
remainder. A statute, it has been said, is judicially held to be 
unconstitutional, because it is not within the scope of legislative 
authority ; it may either propose to accomplish something pro- 
hibited by the constitution, or to accomplish some lawful, and even 
laudable object, by means repugnant to the Constitution of the 
United States or of the State. 2 A statute may contain some such 

1 See ante, p. 130 ei seq. 

2 Commonwealth v. Clapp. 5 Gray, 100. "A law that is unconstitutional is 

[194] 



CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. * 177 

provisions, and yet the same act, having received the sanction of 
all branches of the legislature, and being in the form of law, may 
contain other useful and salutary provisions, not obnoxious to any 
just constitutional exception. It would be inconsistent with all 
just principles of constitutional law to adjudge these enactments 
void, because they are associated in the same act, but not connected 
with or dependent on others which are unconstitutional. 1 
Where, therefore, a part of a * statute is unconstitutional, [* 178] 
that fact does not authorize the courts to declare the re- 
mainder void also, unless all the provisions are connected in 
subject-matter, depending on each other, operating together for 
the same purpose, or otherwise so connected together in meaning, 
that it cannot be presumed the legislature would have passed the 
one without the other. 2 The constitutional and 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. The point is not whether they are contained in the 
same section ; for the distribution into sections is purely artificial ; 
but whether they are essentially and inseparably connected in sub- 
so because it is either an assumption of power not legislative in its nature, or 
because it is inconsistent with some provision of the federal or State Constitu- 
tion." Woodworth, J., in Commonwealth v. Maxwell, 27 Penn. St, 456. 

1 Commonwealth v. Clapp, 5 Gray, 100. See, to the same effect, Fisher v. 
McGirr, 1 Gray, 1; Warren v. Mayor, &c, of Charlestown, 2 Gray, 84; Wel- 
lington, Petitioner, 16 Pick. 95; Commonwealth v. Hitchings, 5 Gray, 482; 
Commonwealth v. Pomeroy, 5 Gray, 486 ; State v. Copeland, 3 R. I. 33 ; State 
v. Snow, 3 R. I. 64 ; Armstrong v. Jackson, 1 Blackf. 374 ; Clark v. Ellis, 2 Blackf. 
248; McCulloch v. State, 11 Ind. 432; People v. Hill, 7 Cal. 97; Lathrop v. 
Mills, 19 Cal. 513; Thomson v. Grand Gulf Railroad Co., 3 How. Miss. 240; 
Campbell v. Union Bank, 6 How. Miss. 625 ; Mobile and Ohio Railroad Co. v. 
State, 29 Ala. 573 ; Santo v. State, 2 Iowa, 165 ; State v. Cox, 3 Eng. 436 ; 
Mayor, &c, of Savannah v. State, 4 Geo. 26 ; Exchange Bank v. Hines, 3 Ohio, 
N. s. 1 ; Robinson v. Bank of Darien, 18 Geo. 65 ; State v. Wheeler, 25 Conn. 
290; People v. Lawrence, 36 Barb. 190; Williams v. Payson, 14 La. An. 7; 
Ely v. Thompson, 3 A. K. Marsh. 70 ; Davis v. State, 7 Md. 151 ; State v. Com- 
missioners of Baltimore, 29 Md. 521 ; Bank of Hamilton v. Dudley's Lessee, 2 
Pet. 526. " To the extent of the collision and repugnancy, the law of the State 
must yield ; and to that extent, and no further, it is rendered by such repugnancy 
inoperative and void." Commonwealth v. Kimball, 24 Pick. 361, per Shaw, 
Ch. J. ; Norris v. Boston, 4 Met. 288. 

2 Commonwealth v. Hitchings, 5 Gray, 485. See People v. Briggs, 50 N.Y. 
566. 

[195] 



* 178 CONSTITUTIONAL LIMITATIONS. [CH. VII. 

stance. 1 If, when the unconstitutional portion is stricken out, 
that which remains is complete in itself, and capable of being ex- 
ecuted in accordance with the apparent legislative intent, wholly 
independent of that which was rejected, it must be sustained. The 
difficulty is in determining whether the good and bad parts of the 
statute are capable of being separated within the meaning of this 
rule. If a statute attempts to accomplish two or more objects, and 
is void as to one, it may still be in every respect complete and valid 
as to the other. But if its purpose is to accomplish a single object 
only, and some of its provisions are void, the whole must fail 
unless sufficient remains to effect the object without the aid of the 
invalid portion. 2 And if they are so mutually connected 
[* 179] with and * dependent on each other, as conditions, con- 
siderations, or compensations for each other, as to warrant 

1 Commonwealth v. Hitchings, 5 Gray, 485; Willard v. People, 4 Scam. 470; 
Eells v. People, 4 Scam. 512 ; Robinson v. Bidwell, 22 Cal. 379 ; State v. Easter- 
brook, 3 Nev. 173 ; Hagerstown v. Dechert, 32 Md. 369. 

2 Santo v. State, 2 Iowa, 165. But perhaps the doctrine of sustaining one 
part of a statute when the other is void was carried to an extreme in this case. 
A prohibitory liquor law had been passed which was not objectionable on consti- 
tutional grounds, except that the last section provided that " the question of pro- 
hibiting the sale and manufacture of intoxicating liquor " should be submitted to 
the electors of the State, and if it should appear " that a majority of the votes 
cast as aforesaid, upon said question of prohibition, shall be for the prohibitory 
liquor law, then this act shall take effect on the first day of July, 1855." The 
court held this to be an attempt by the legislature to shift the exercise of legis- 
lative power from themselves to the people, and therefore void ; but they also 
held that the remainder of the act was complete without this section, and must 
therefore be sustained on the rule above given. The reasoning of the court by 
which they are brought to this conclusion is ingenious ; but one cannot avoid 
feeling, especially after reading the dissenting opinion of Chief Justice Wright, 
that by the decision the court gave effect to an act which the legislature did not 
design should take effect unless the result of the unconstitutional submission to 
the people was in its favor. For a similar ruling, see Maize v. State, 4 Ind. 342 ; 
overruled in Meshmeier v. State, 11 Ind. 482. And see State v. Dombaugh, 
20 Ohio, N. s. 173, where it was held competent to construe a part of an act held 
to be valid by another part adjudged unconstitutional, though the court con- 
sidered it " quite probable " that if the legislature had supposed they were without 
power to adopt the void part of the act, they would have made an essen- 
tially different provision by the other. See also People v. Bull, 46 N. Y. 68, 
where part of an act was sustained which probably would not have been adopted 
by the legislature separately. It must be obvious in any case where part of an 
act is set aside as unconstitutional, that it is unsafe to indulge in the same extreme 

[196] 



CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. * 179 

the belief that the legislature intended them as a whole, and if all 
could not be carried into effect, the legislature would not pass the 
residue independently, then if some parts are unconstitutional, all 
the provisions which are thus dependent, conditional, or connected 
must fall with them. 1 

It has accordingly been held where a statute submitted to the 
voters of a county the question of the removal of their county seat, 
and one section imposed the forfeiture of certain vested rights in 
case the vote was against the removal, that this portion of the act 
being void, the whole must fall, inasmuch as the whole was sub- 
mitted to the electors collectively, and the threatened forfeiture 
would naturally affect the result of the vote. 2 

And where a statute annexed to the city of Racine certain lands 
previously in the township of Racine, but contained an express 
provision that the lands so annexed should be taxed at a different 
and less rate than other lands in the city ; the latter provision 
being held unconstitutional, it was also held that the whole statute 

presumptions in support of the remainder that are allowable in support of a com- 
plete act when some cause of invalidity is suggested to the whole of it. In the 
latter case, we know the legislature designed the whole act to have effect, and we 
should sustain it if possible ; in the former, we do not know that the legislature 
would have been willing that a part of the act should be sustained if the remainder 
were held void, and there is generally a presumption more or less strong to the 
contrary. While, therefore, in the one case the act should be sustained unless 
the invalidity is clear, in the other the whole should fall unless it is manifest the 
portion not opposed to the constitution can stand by itself, and that in the leg- 
islative intent it was not to be controlled or modified in its construction and 
effect by the part which was void. 

The Supreme Court of the Territory of Utah a few years since, in considering 
a statute which authorized the probate courts to grant divorces for specified 
causes, held it void so far as it undertook to confer jurisdiction on the probate 
courts, but good so far as it authorized divorces ; and as the jurisdiction to grant 
them could, under their conclusions, vest nowhere else, they held it might be 
administered by themselves as district judges. This was not exactly sustaining 
the half of a law by itself, but it was sustaining it by means of something sub- 
stituted in the place of the other half. 

1 Warren v. Mayor, &c., of Charlestown, 2 Gray, 99 ; State v. Commissioners 
of Perry County, 5 Ohio, N. s. 507 ; Slauson v. Racine, 13 Wis. 398 ; Allen 
County Commissioners v. Silvers, 22 Ind. 491 ; Garrard Co. Court v. Navigation 
Co., 10 Am. Law Reg. N. s. 100. 

2 State v. Commissioners of Perry County, 5 Ohio, N. s. 507. And see 
Jones v. Robbins, 8 Gray, 338. 

[197] 



* 179 CONSTITUTIONAL LIMITATIONS. [CH. VII. 

must fail, inasmuch as such provision was clearly intended as a 
compensation for the annexation. 1 

And where a statute, in order to obtain a jury of six 
[* 180] persons, * provided for the summoning of twelve jurors, 
from whom six were to be chosen and sworn, and under 
the constitution the jury must consist of twelve, it was held that 
the provision for reducing the number to six could not be rejected 
and the statute sustained, inasmuch as this would be giving to it a 
construction and effect different from that the legislature designed ; 
and would deprive the parties of the means of obtaining impartial 
jurors which the statute had intended to give. 2 

On the other hand, — to illustrate how intimately the valid and 
invalid portions of a statute may be associated, — a section of the 
criminal code of Illinois provided that " if any person shall harbor 
or secrete any negro, mulatto, or person of color, the same being 
a slave or servant, owing service or labor to any other persons, 
whether they reside in this State or in any other State, or Territory, 
or district, within the limits and under the jurisdiction of the 
United States, or shall in any wise hinder or prevent the lawful 
owner or owners of such slaves or servants from retaking them in 
a lawful manner, every person so offending shall be deemed guilty 
of a misdemeanor," tfcc, and it was held that, although the latter 
portion of the section was void within the decision in Prigg v. 
Pennsylvania, 3 yet that the first portion, being a police regulation 
for the preservation of order in the State, and important to its well- 
being, and capable of being enforced without reference to the rest, 
was not affected by the invalidity of the rest. 4 

A legislative act may be entirely valid as to some classes of 
cases, and clearly void as to others. A general law for the punish- 
ment of offences, which should endeavor to reach, by its retroactive 
operation, acts before committed, as well as to prescribe. a rule of 
conduct for the citizen in the future, would be void so far as it was 
retrospective, but such invalidity would not affect the operation of 
the law in regard to the cases which were within the legislative 
control. A law might be void as violating the obligation of exist- 

1 Slauson v. Racine, 13 Wis. 398, followed in State v Dousman, 28 Wis. 547. 

2 Campau v. Detroit, 14 Mich. 272. 

3 16 Pet. 539. 

4 Willard v. People, 4 Scam. 470; Eells v. People, ib. 512. See Hagerstown 
v. Dechert, 32 Md. 369. 

[198] 



CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. * 180 

ing contracts, but valid as to all contracts which should be entered 
into subsequent to its passage, and which therefore would have no 
legal force except such as the law itself would allow. 1 In any such 
case the unconstitutional law must operate as far as it can, 2 
and it will not be held invalid on the objection * of a party [* 181] 
whose interests are not affected by it in a manner which 
the constitution forbids. If there are any exceptions to this rule, 
they must be of cases only where it is evident, from a contempla- 
tion of the statute and of the purpose to be accomplished by it, that 
it would not have been passed at all, except as an entirety, and 
that the general purpose of the legislature will be defeated if it 
shall be held valid as to some cases and void as to others. 



Waiving a Constitutional Objection. 

There are cases where a law in its application to a particular 
case must be sustained, because the party who makes objection 
has, by prior action, precluded himself from being heard against 
it. Where a constitutional provision is designed for the protection 
solely of the property rights of the citizen, it is competent for him 
to waive the protection, and to consent to such action as would be 
invalid if taken against his will. On this ground it has been held 
that an act appropriating the private property of one person for the 
private purposes of another, on compensation made, was valid if he 
whose property was taken assented thereto ; and that he did assent 
and waive the constitutional privilege, if he received the compensa- 
tion awarded, or' brought an action to recover it. 3 So if an act 
providing for the appropriation of property for a public use shall 
authorize more to be taken than the use requires, although such act 
would be void without the owner's assent, yet with it all objection 

1 Mundy v. Monroe, 1 Mich. 68 ; Cargill v. Power, 1 Mich. 369. In People 
v. Rochester, 50 N. Y. 525, certain commissioners were appointed to take for a 
city hall either lands belonging to the city or lands of individuals. The act made 
no provision for compensation. The commissioners elected to take lands belong- 
ing to the city. Held, that the act was not wholly void for the omission to pro- 
vide compensation in case the lands of individuals had been selected. 

2 Baker v. Braman, 6 Hill, 47. The case of Sadler v. Langham, 34 Ala. 333, 
appears to be opposed to this principle, but it also appears to us to be based 
upon cases which are not applicable. 

J Baker v. Braman, 6 Hill, 47. 

[199] 



* 181 CONSTITUTIONAL LIMITATIONS. [CH. VII. 

on the ground of unconstitutionality is removed. 1 And where 
parties were authorized by statute to erect a darn across a river, 
provided they should first execute a bond to the people conditioned 
to pay such damages as each and every person might sustain in 
consequence of the erection of the dam, the damages to be assessed 
by a justice of the peace, and the dam was erected and damages as- 
sessed as provided by the statute, it was held, in an action on the 
bond to recover those damages, that the party erecting the dam and 
who had received the benefit of the statute, was precluded by his 
action from contesting its validity, and could not insist upon his 

right to a common-law trial by jury. 2 In these and the like 
[* 182] -cases the statute must be read with * an implied proviso that 

the party to be affected shall assent thereto ; and such con- 
sent removes all obstacle, and lets the statute in to operate the same 
as if it had in terms contained the condition. 3 In criminal cases, 
however, the doctrine that a constitutional privilege may be waived 
must be true to a very limited extent only. A party may consent 
to waive rights of property, but the trial and punishment for public 
offences are not within the province of individual consent or 
agreement. 

Judicial Doubts on Constitutional Questions. 

It has been said by an eminent jurist, that when courts are called 
upon to pronounce the invalidity of an act of legislation, passed 
with all the forms and ceremonies requisite to give it the force of 
law, they will approach the question with great caution, examine it 
in every possible aspect, and ponder upon it as long as deliberation 
and patient attention can throw any new light upon the subject, 
and never declare a statute void, unless the nullity and invalidity 
of the act are placed, in their judgment, beyond reasonable doubt. 4 

1 Embury v. Conner, 3 N. Y. 511. And see Heyward v. Mayor, &c, of 
New York, 8 Barb. 489 ; Mobile and Ohio Railroad Co. v. State, 29 Ala. 586 ; 
Detmold v. Drake, 46 N. Y. 318. 

2 People v. Murray, 5 Hill, 468. See Lee v. Tillotson, 24 Wend. 339. 

3 Embury v. Conner, 3 N. Y. 518. And see Matter of Albany St. , 11 Wend. 
149; Chamberlain v. Lyell, 3 Mich. 448; Beecher v. Baldy, 7 Mich. 488; 
Mobile and Ohio Railroad Co. v. State, 29 Ala. 586 ; Detmold v. Drake, 46 
N. Y. 318. 

4 Wellington, Petitioner, 16 Pick. 95, per Shaw, Ch. J. See Brown v. 
Buzan, 24 Lid. 194. If an act may be valid or not according to the circum- 

[200] 



CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. * 182 

A reasonable doubt must be solved in favor of tbe legislative action, 
and tbe act be sustained. 1 

" Tbe question wbetber a law be void for its repugnancy to tbe 
constitution is at all times a question of much delicacy, wbich 
ougbt seldom, if ever, to be decided in tbe affirmative in a doubt- 
ful case. The court wben impelled by duty to render such a 
judgment would be unworthy of its station could it be 
unmindful * of the solemn obligation wbich that station [* 183] 
imposes ; but it is not on slight implication and vague 
conjecture that tbe legislature is to be pronounced to have tran- 
scended its powers, and its acts to be considered as void. The oppo- 
sition between the constitution and the law should be such that 
the judge feels a clear and strong conviction of their incompati- 
bility with each other." 2 Mr. Justice Washington gives a reason 
for this rule, which has been repeatedly recognized in other cases 
which we have cited. After expressing the opinion that the partic- 
ular question there presented, and which regarded the constitution- 
ality of a State law, was involved in difficulty and doubt, he says : 
" But if I could rest my opinion in favor of the constitutionality of 
the law on which the question arises, on no other ground than this 
doubt so felt and acknowledged, that alone would, in my estima- 
tion, be a satisfactory vindication of it. It is but a decent respect 

stances, a court would be bound to presume that such circumstances existed as 
would render it valid. Talbot v. Hudson, 16 Gray, 417. 

1 Cooper v. Telfair, 4 Dall. 18; Dow v. Norris, 4 N. H. 16; Flint River 
Steamboat Co. v. Foster, 5 Geo. 194; Carey v. Giles, 9 Geo. 253; Macon and 
Western Railroad Co. v. Davis, 13 Geo. 68; Franklin Bridge Co. p. Wood, 14 
Geo. 80; Kendall v. Kingston, 5 Mass. 524; Foster v. Essex Bank, 16 Mass. 
245 ; Norwich v. County Commissioners of Hampshire, 13 Pick. 61 ; Hartford 
Bridge Co. v. Union Ferry Co., 29 Conn. 227 ; Rich v. Flanders, 39 N. H. 312 ; 
Eason v. State, 6 Eng. 481 ; Hedley v. Commissioners of Franklin Co., 4 Blackf. 
116 ; Stocking v. State, 7 Ind. 327 ; La Fayette v. Jenners, 10 Ind. 79 ; Ex parte 
McCollum, 1 Cow. 564; Coutant v. People, 11 Wend. 511; Clark v. People, 
26 Wend. 606; Morris v. People, 3 Denio, 381; Baltimore v. State, 15 Md. 
376; Cotton v. Commissioners of Leon Co., 6 Fla. 610; Lane v. Dorman, 3 
Scam. 238 ; Newland v. Marsh, 19 111. 381 ; Farmers and Mechanics Bank v. 
Smith, 3 S. & R. 63; Weister v. Hade, 52 Penn. St. 477; Sears v. Cottrell, 5 
Mich. 251; People v. Tyler, 8 Mich. 320; Allen County Commissioners v. Sil- 
vers, 22 Ind. 491 ; State v. Robinson, 1 Kansas, 17 ; Eyre v. Jacob, 14 Grat. 
426 ; Gormley v. Taylor, 44 Geo. 76 ; State v. Cape Girardeau, &c, R.R. Co., 48 
Mo. 468. 

2 Fletcher v. Peck, 6 Cranch, 128, per Marshall, Ch. J. 

[201 ] 



* 183 CONSTITUTIONAL LIMITATIONS. [CH. VII. 

due to the wisdom, the integrity, and the patriotism of the legisla- 
tive body by which any law is passed, to presume in favor of its 
validity, until its violation of the constitution is proved beyond all 
reasonable doubt." x 

The constitutionality of a law, then, is to be presumed, because 
the legislature, which was first required to pass upon the question, 
acting, as they must be deemed to have acted, with integrity, and 
with a just desire to keep within the restrictions laid by the con- 
stitution upon their action, have adjudged that it is so. They are 
a co-ordinate department of the government with the judiciary, 
invested with very high and responsible duties, as to some of 
which their acts are not subject to judicial scrutiny, and they 
legislate under the solemnity of an official oath, which it is not to 
be supposed they will disregard. It must, therefore, be supposed 
that their own doubts of the constitutionality of their action have 
been deliberately solved in its favor, so that the courts may with 
some confidence repose upon their conclusion as one based upon 
their best judgment. For although it is plain, upon the au- 
thorities, that the courts should sustain legislative action when 
not clearly satisfied of its invalidity, it is equally plain in reason 
that the legislature should abstain from adopting such action if 
not fully assured of their authority to do so. Respect for the 

instrument under which they exercise their power should 
[* 184] impel the * legislature in every case to solve their doubts 

in its favor, and it is only because we are to presume 
they do so, that courts are warranted in giving weight in any case 
to their decision. If it were understood that legislators refrained 
from exercising their judgment, or that, in cases of doubt, they 
allowed themselves to lean in favor of the action they desired to 
accomplish, the foundation for the cases we have cited would be 
altogether taken away. 

As to what the doubt shall be upon which the court is to act, 
we conceive that it can make no difference whether it springs from 
an endeavor to arrive at the true interpretation of the constitution, 
or from a consideration of the law after the meaning of the con- 
stitution has been judicially determined. It has sometimes been 
supposed that it was the duty of the court, first, to interpret the 
constitution, placing upon it a construction that .must remain un- 

1 Ogden v. Saunders, 12 Wheat. 270. 
[202] 



CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. * 184 

varying, and then test the law in question by it ; and that any 
other rule would lead to differing judicial decisions, if the legis- 
lature should put one interpretation upon the constitution at one 
time and a different one at another. But the decided cases do not 
sanction this rule, 1 and the difficulty suggested is rather imaginary 
than real, since it is but reasonable to expect that, where a con- 
struction has once been placed upon a constitutional provision, it 
will be followed afterwards, even though its original adoption may 
have sprung from deference to legislative action rather than from 
settled convictions in the judicial mind. 2 

The duty of the court to uphold a statute when the conflict 
between it and the constitution is not clear, and the implication 
which must always exist that no violation has been intended by 
the legislature, may require it in some cases, where the meaning 
of the constitution is not in doubt, to lean in favor of such a con- 
struction of the statute as might not at first view seem most 
obvious and natural. For as a conflict between the statute and 
the constitution is not to be implied, it would seem to follow, where 
the meaning of the constitution is clear, that the court, if possible, 
must give the statute such a construction as ivill enable it to have 
effect. This is only saying, in another form of words, that the 
court must construe the statute in accordance with the 
legislative* intent; since it is always to be presumed [* 185] 
the legislature designed the statute to take effect, and 
not to be a nullity. 

The rule upon this subject is thus stated by the Supreme Court 
of Illinois : " Whenever an act of the legislature can be so con- 
strued and applied as to avoid conflict with the constitution and 
give it the force of law, such construction will be adopted by the 
courts. Therefore, acts of the legislature, in terms retrospective, 
and which, literally interpreted, would invalidate and destroy 
vested rights, are upheld by giving them prospective operation 
only ; for, applied to, and operating upon, future acts and trans- 
actions only, they are rules of property under and subject to which 
the citizen acquires property rights, and are obnoxious to no con- 
stitutional limitation ; but as retroactive laws, they reach to and 
destroy existing rights, through force of the legislative will, witli- 

1 Sun Mutual Insurance Co. v. New York, 5 Sandf. 14 ; Clark v. People, 26 
Wend. 606 ; Baltimore v. State, 15 Md. 457. 

2 People v. Blodgett, 13 Mich. 162. 

1 * [203] 



* 185 CONSTITUTIONAL LIMITATIONS. [CH. VII. 

out a hearing or judgment of law. So will acts of the legislature, 
having elements of limitation, and capable of being so applied and 
administered, although the words are broad enough to, and do, 
literally read, strike at the right itself, be construed to limit and 
control the remedy ; for as such they are valid, but as weapons 
destructive of vested rights they are void ; and such force only 
will be given the acts as the legislature could impart to them." 1 

The Supreme Court of New Hampshire, where a similar ques- 
tion is involved, recognizing their obligation " so to construe every 
act of the legislature as to make it consistent, if it be possible, 
with the provisions of the constitution," proceed to the examina- 
tion of a statute by the same rule, " without stopping to inquire 
what construction might be warranted by the natural import of the 
language used." 2 

And Harris, J., delivering the opinion of the majority of the 
Court of Appeals of New York, says : " A legislative act is not 
to be declared void upon a mere conflict of interpretation between 
the legislative and the judicial power. Before proceeding to annul, 
by judicial sentence, what has been enacted by the law-making 
power, it should clearly appear that the act cannot be supported 
by any reasonable intendment or allowable presumption." 3 And 
the Supreme Court of New York consider this but 
[* 186] * the application of the familiar rule, that in the expo- 
sition of a statute it is the duty of the court to seek to 
ascertain and carry out the intention of the legislature in its en- 
actment, and to give full effect to such intention, and they are 
bound so to construe the statute, if practicable, as to give it force 
and validity, rather than to avoid it, or render it nugatory. 4 

The rule is not different when the question is whether any por- 
tion of a statute is void, than when the whole is assailed. The 
excess of power, if there is any, is the same in either case, and is 
not to be applied in any instance. 

And on this ground it has been held that where the repealing 
clause in an unconstitutional statute repeals all inconsistent acts, 
the repealing clause is to stand and have effect, notwithstanding 

1 Newland v. Marsh, 19 111. 384. See, also, Bigelow v. West Wisconsin R.R. 
Co., 27 Wis. 478. 

2 Dow v. Norris, 4 N. H. 17. 

3 People v. Supervisors of Orange, 17 N. Y. 241. 

4 Clarke v. Rochester, 24 Barb. 471. See Marshall v. Grimes, 41 Miss. 27. 

[ 204 ] 



CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. 



186 



the invalidity of the rest. 1 But other cases hold that such repeal- 
ing clause is to be understood as designed to repeal all conflicting 
provisions,' in order that those of the new statute can have effect; 
and that if the statute is invalid, nothing can conflict with it, and 
therefore nothing is repealed. 2 Great caution is necessary in 
some cases, or the rule which was designed to ascertain and 
effectuate the legislative intent will be pressed to the extreme of 
giving effect to part of a statute exclusively, when the legislative 
intent was that it should not stand except as a component part of 
the whole. 

Inquiry into Legislative 3Iotives. 

From what examination has been given to this subject, it ap- 
pears that whether a statute is constitutional or not is always a 
question of power ; that is, whether the legislature in the partic- 
ular case, in respect to the subject-matter of the act, the manner in 
which its object is to be accomplished, and the mode of enacting it, 
has kept within the constitutional limits and observed the constitu- 
tional conditions. In any case in which this question is answered 
in the affirmative, the courts are not at liberty to inquire into the 
proper exercise of the power. They must assume that 
legislative discretion has been properly exercised. 3 * If [* 187] 
evidence was required, it must be supposed that it was 
before the legislature when the act was passed ; 4 and if any special 
finding was required to warrant the passage of the particular act, 
it would seem that the passage of the act itself might be held 
equivalent to such finding. 5 And although it has sometimes been 

1 Meshmeier v. State, 11 Ind. 489 ; Ely v. Thompson, 3 A. K. Marsh. 70. 

2 Shepardson v. Milwaukee and Beloit Railroad Co., 6 Wis. 605 ; State v. 
Judge of County Court, 11 Wis. 50; Tims v. State, 26 Ala. 165; Sullivan v. 
Adams, 3 Gray, -176; Devoy v. Mayor, &c, of New York, 35 Barb. 261; Cam- 
pau v. Detroit, 11 Mich. 276 ; Cbilds v. Shower, 18 Iowa, 261 ; Harbeck v. New 
York, 10 Bosw. 366. 

3 People v. Lawrence, 36 Barb. 193 ; People v. New York Central Railroad 
Co., 31 Barb. 137 ; Baltimore v. State, 15 Md. 376 ; Goddin v. Crump, 8 Leigh. 
154. 

. * De Camp v. Eveland, 19 Barb. 81 ; Lusher v. Scites, 4 W. Va. 11. 
5 Johnson v. Joliet and Chicago Railroad Co., 23 111. 207. The constitution 
of Illinois provided that "corporations not possessing banking powers or priv- 
ileges may be formed under general laws, but shall not be created by special 

[205 ] 



* 187 CONSTITUTIONAL LIMITATIONS. [CH. VII. 

urged at the bar that the courts ought to inquire into the motives 
of the legislature where fraud and corruption were alleged, and 
annul their action if the allegation were established, the argu- 
ment has in no case been acceded to by the judiciary, and they 
have never allowed the inquiry to be entered upon. 1 The reasons 
are the same here as those which preclude an inquiry into the 
motives of the governor in the exercise of a discretion vested in 

acts, except for municipal purposes, and in cases where, in the judgment of the 
General Assembly, the objects of the corporation cannot be attained under 
general laws." A special charter being passed without any legislative declara- 
tion that its object could not be attained under a general law, the Supreme Court 
sustained it, but placed their decision mainly on the ground that the clause had 
been wholly disregarded, " and it would now produce far-spread ruin to declare 
such acts unconstitutional and void." It is very clearly intimated in the opinion, 
that the legislative practice, and this decision sustaining it, did violence to the 
intent of the constitution. A provision in the constitution of Indiana that "no 
act shall take effect until the same shall have been published and circulated in 
the several counties of this State, by authority, except in case of emergency," 
adds the words, " which emergency shall be declared in the preamble, or in the 
body of the law;" thus clearly making the legislative declaration necessary. 
Carpenter v. Montgomery, 7 Blackf. -415 ; Mark v. State, 15 Ind. 98 ; Hendrick- 
son v. Hendrickson, 7 Ind. 13. 

1 Sunbury and Erie Railroad Co. v. Cooper, 33 Penn. St. 278 ; Ex -parte New- 
man, 9 Cal. 502 ; Baltimore v. State, 15 Md. 376 ; Johnson v. Higgins, 3 Met. 
(Ky.) 566. " The courts cannot impute to the legislature any other but public 
motives for their acts." People v. Draper, 15 N. Y. 545, per Denio, Ch. J. 
" We are not made judges of the motives of the legislature, and the court will 
not usurp the inquisitorial office of inquiry into the bona fides of that body in 
discharging its duties." Shankland, J., in the same case, p. 555. " The powers 
of the three departments are not merely equal ; they are exclusive in respect to 
the duties assigned to each. They are absolutely independent of each other. It 
is now proposed that one of the three powers shall institute an inquiry into the 
conduct of another department, and form an issue to try by what motives the 
legislature were governed in the enactment of a law. If this may be done, we 
may also inquire by what motives the executive is induced to approve a bill or 
withhold his approval, and in case of withholding it corruptly, by our mandate 
compel its approval. To institute the proposed inquiry would be a direct attack 
upon the independence of the legislature, and a usurpation of power subversive 
of the constitution." Wright v. Defrees, 8 Ind. 302, per Gookins, J. " We are 
not at liberty to inquire into the motives of the legislature. We can only ex- 
amine into its power under the constitution." Per Chase, Ch. J., in Ex parte 
McCardle, 7 Wall. 514. And see McCulloch v. State, 11 Ind. 431 ; Bradshaw 
v. Omaha, 1 Neb. 16 ; Humboldt County v. Churchill County Comtn'rs, 6 Nev. 30 ; 
Flint, &c, Plank Road Co. v. Woodhull, 2b Mich. 103 ; State v. Fagan, 22 La. 
An. 545 ; State v. Hays, 49 Mo. 607. 

[206] 



CH. VII.] DECLARING STATUTES UNCONSTITUTIONAL. * 187 

him exclusively. He is responsible for his acts in such a case 
not to the courts, but to the people. 1 

* Consequences if a Statute is Void. [* 188] 

When a statute is adjudged to be unconstitutional, it is as if it 
had never been. Rights cannot be built up under it ; contracts 
which depend upon it for their consideration are void ; it consti- 
tutes a protection to no one who has acted under it, and no one 
can be punished for having refused obedience to it before the deci- 
sion was made. 2 And what is true of an act void in toto is true 
also as to any part of an act which is found to be unconstitutional, 
and which, consequently, is to be regarded as having never, at any 
time, been possessed of any legal force. 

1 Attorney-General v. Brown, 1 Wis. 522 ; Wright v. Defrees, 8 Incl. 302. 

2 Strong v. Daniel, 5 Ind. 348 ; Astrom v. Hammond, 3 McLean, 107 ; 
Meagher v. Storey Co., 5 Nev. 244. But one acting as an officer under an un- 
constitutional law was held in Commonwealth v. McCombs, 56 Peun. St. 436, to 
be an officer de facto. This could hardly be so, however, if the law creating 
the office was unconstitutional. There can be no officer de facto when there is 
no office. See Carleton v. People, 10 Mich. 250. In People v. Salomon, 54 111. 
46, a ministerial officer was severely censured for presuming to disregard a law 
as unconstitutional. The court found it to be valid, but if they had held the con- 
trary, the officer certainly could not have been punished for anticipating their de- 
cision in his own action. In Texas it is reported to have been recently held, in 
an opinion which we have not seen, that an act held unconstitutional must be 
deemed to have the force of law for the protection of officers acting under it up 
to the time of the decision declaring it void. Sessurus v. Botts, 34 Tex. 335. 
And in some States a disposition has been manifested to hold that contracts made 
by municipal bodies under an unconstitutional law may be enforced where they 
have found their way into the hands of bona fde purchasers before the invalidity 
was judicially declared. Steines v. Franklin County, 48 Mo. 167 ; State v. Saline 
County Court, lb. 390 ; Columbia County v. King, 13 Fla. 45 ; Same v. Davidson, 
ib. 482. 

[207 ] 



189 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 



[*189] *CHAPTER VIII. 

THE SEVERAL GRADES OP MUNICIPAL GOVERNMENT. 

In the examination of American constitutional law, we shall 
not fail to notice the care taken and the means adopted to bring 
the agencies by which power is to be exercised as near as possible 
to the subjects upon which the power is to operate. 

In contradistinction to those governments where power is con- 
centrated in one man, or one or more bodies of men, whose 
supervision and active control extend to all the objects of gov- 
ernment within the territorial limits of the State, the American 
system is one of complete decentralization, the primary and vital 
idea of which is, that local affairs shall be managed by local 
authorities, and general affairs only by the central authority. It 
was under the control of this idea that a national Constitution 
was formed, under which the States, while yielding to the national 
government complete and exclusive jurisdiction over external 
affairs, conferred upon it such powers only, in regard to matters 
of internal regulation, as seemed to be essential to national union, 
strength, and harmony, and without which the purpose in organ- 
izing the national authority might have been defeated. It is this, 
also, that impels the several States, as if by common arrangement, 
to subdivide their territory into counties, towns, road, and school 
districts, and to confer upon each the powers of local legislation, 
and also to incorporate cities, boroughs, and villages wherever a 
dense population renders different rules important from those 
which are needful for the rural districts. 

The system is one which almost seems a part of the very nature 
of the race to which we belong. A similar subdivision of the realm 
for the purposes of municipal government has existed in England 
from the earliest ages ; 1 and in America, the first settlers, as if 

1 Crabbe's History of English Law, c. 2 ; 1 Bl. Com. 114; HallanVs Middle 
Ages, c. 8, pt. 1 ; 2 Kent, 278 ; Vaughan's Revolutions in English History, b. 2, 
c. 8. 

[208] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 189 

instinctively, adopted it in their frame of government, and 
* no other has ever supplanted it, or even found advocates. [* 190] 
In most of the colonies the central power created and pro- 
vided for the organization of the towns ; 1 in one at least the towns 
preceded and created the central authority ; 2 but in all, the final 
result was substantially the same, that towns, villages, boroughs, 
cities, and counties exercised the powers of local government, and 
the Colony or State the powers of a more general nature. 3 

1 For an interesting history of the legislation in Connecticut on this subject, 
see "Webster v. Harwinton, 32 Conn. 131. In New Hampshire, see Bow v. 
Allenstown, 34 N. H. 351. The learned note to Commonwealth v. Roxbury, 9 
Gray, 503, will give similar information concerning the organization and authority 
of towns in the Massachusetts provinces. And see People v. Hurlbut, 24 
Mich. 98. Mr. Elliott well says: " The prime strength of New England and 
of the whole republic was and is in the municipal governments and in the homes." 
And he adds, that among the earliest things decided in Massachusetts was, " that 
trivial things should be ended in towns." (1635.) Elliott's New England, Vol. 
I. p. 182. 

2 Rhode Island ; see Arnold's History, c. 7. It is remarked by this author 
that, when the charter of Rhode Island was suspended to bring the Colony under 
the dominion of Andros, " the American system of toicn governments, which 
necessity had compelled Rhode Island to initiate fifty years before, became the 
means of preserving the individual liberty of the citizen when that of the State or 
Colony was crushed." lb. Vol. I. p. 487. 

3 "The townships," says De Tocqueville, " are only subordinate to the State 
in those interests which I shall term social, as they are common to all of the 
citizens. They are independent in all that concerns themselves, and among the 
inhabitants of New England I believe that not a man is to be found who would 
acknowledge that the State has any right to interfere in their local interests. The 
towns of New England buy and sell, prosecute or are indicted ; augment or 
diminish their rates, without the slightest opposition on the part of the adminis- 
trative authority of the State. They are bound, however, to comply with the 
demands of the community. If a State is in need of money, a town can neither 
give nor withhold the supplies. If a State jjrojects a road, the township cannot 
refuse to let it cross its territory ; if a police regulation is made by the State it 
must be enforced by the town. An uniform system of instruction is organized 
all over the country, and every town is bound to establish the schools which the 
law ordains. . . . Strict as this obligation is, the government of the State im- 
poses it in principle only, and in its performance the township assumes all its 
independent rights. Thus taxes are voted by the State, but they are assessed 
and collected by the township ; the existence of a school is obligatory, but the 
township builds, pays, and superintends it. In France, the State collector re- 
ceives the local imposts ; in America, the town collector receives the taxes of the 
State. Thus the French government lends its agents to the commune ; in Amer- 
ica, the township is the agent of the government. The fact alone shows the 

14 [ 209 ] 



* 190 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

The several State constitutions have been framed with this 
system in view, and the delegations of power which they make, 
and the express and implied restraints which they impose there- 
upon, can only be correctly understood and construed by keeping 
in view its present existence and anticipated continuance. There 
are few of the general rules of constitutional law that are not 
more or less affected by the fact that the powers of government 
are not concentrated in any one body of men, but are carefully 
distributed, with a view to being exercised with intelli- 
[* 191] gence,* economy, and facility, and as far as possible by 
the persons most directly and immediately interested. 

It has already been seen that the legislature cannot delegate its 
power to make laws ; but fundamental as this maxim is, it is so 
qualified by the customs of our race, and by other maxims which 
regard local government, that the right of the legislature, in the 
entire absence of authorization or prohibition, to create towns and 
other inferior municipal organizations, and to confer upon them 
the powers of local government, and especially of local taxation 
and police regulation usual with such corporations, would always 
pass unchallenged. The legislature in these cases is not regarded 
as delegating its authority, because the regulation of such local 
affairs as are commonly left to local boards and officers is not un- 
derstood to belong properly to the State ; and when it interferes, 
as sometimes it must, to restrain and control the local action, 
there should be reasons of State policy or dangers of local abuse 
to warrant the interposition. 1 

extent of the differences which exist between the two nations." Democracy in 
America, c. 5. 

1 " It seems to be generally conceded that powers of local legislation may be 
granted to cities, towns, and other municipal corporations. And it would require 
strong reasons to satisfy us that it could have been the design of the framers of 
our constitution to take from the legislature a power which has been exercised in 
Europe by governments of all classes from the earliest history, and the exercise 
of which has probably done more to promote civilization than all other causes 
combined ; which has been constantly exercised in every part of our country 
from its earliest settlement, and which has raised up among us many of our most 
valuable institutions." State v. Noyes, 10 Fost. 292, per Bell, J. See also 
Tanner v. Trustees of Albion, 5 Hill, 121 ; Dalby v. Wolf, 14 Iowa, 228; State 
v. Simonds, 3 Mo. 414; McKee v. McKee, 8 B. Monr. 433; Smith v. Levinus, 
8 N. Y. 472 ; People v. Draper, 15 N. Y. 532 ; Burgess v. Pue, 2 Gill, 11 ; New 
Orleans u.Turpin, 13 La. An. 56; Gilkeson v. The Frederick Justices, 13 Grat. 
577 ; Mayor, &c, of New York v. Ryan, 2 E. D. Smith, 368 ; St. Louis v. 

[210] 



CH. VIII.] THE GEADES OF MUNICIPAL GOVERNMENT. * 191 

The people of the municipalities, however, do not define for 
themselves their own rights, privileges, and powers, nor is there 
any common law which draws any definite line of distinction be- 
tween the powers which may be exercised by the State and those 
which must be left to the local governments. 1 The municipalities 
must look to the State for such charters of government as the 
legislature shall see fit to provide ; and they cannot prescribe for 
themselves the details, though they have a right to expect that 
those charters will be granted with a recognition of the 
general * principles with which we are familiar. The [* 192] 
charter, or the general law under which they exercise 
their powers, is their constitution, in which they must be able to 
show authority for the acts they assume to perform. They have 
no inherent jurisdiction to make laws or adopt regulations of gov- 
ernment; they are governments of enumerated powers, acting by 
a delegated authority ; so that while the State legislature may 
exercise such powers of government coming within a proper desig- 
nation of legislative power as are not expressly or impliedly pro- 
hibited, the local authorities can exercise those only which are 
expressly or impliedly conferred, and subject to such regulations 
or restrictions as are annexed to the grant. 2 

The creation of municipal corporations, and the conferring 
upon them of certain powers and subjecting them to correspond- 
ing duties, does not deprave the legislature of the State of that 
general control over their citizens which was before possessed. 
It still lias authority to amend their charters, enlarge or diminish 
their powers, extend or limit their boundaries, consolidate two or 
more into one, overrule their legislative action whenever it is 

Russell, 9 Mo. 503; Bliss v. Kraus, 16 Ohio, n. 8. 55; Trigally v. Memphis, 
6 Cold. 382 ; Durach's Appeal, 63 Penn. St. 491 ; State v. Wilcox, 45 Mo. 458 ; 
Jones v. Richmond, 18 Grat. 517 ; State v. Neill, 24 Wis. 149 ; Bradley v. 
M'Atee, 7 Bush, 667 ; s. c. 3 Am. Rep. 309 ; Burckholter v. M'Connellsville, 
20 Ohio, 308 ; People v. Hurlbut, 24 Mich. 108 ; Mills v. Charleton, 29 Wis. 
415. 

1 As to the common law affecting these corporate existences, and the effect 
of usage, see 2 Kent, 278, 279. 

2 Stetson v. Kempton, 13 Mass. 272 ; Willard v. Killingworth, 8 Conn. 254 ; 
Abendrpth v. Greenwich, 29 Conn. 363 ; Baldwin v. North Branford, 32 Conn. 
47; Webster v. Harwinton, ib. 131; Douglass v. Placerville, 18 Cal. 643; Lack- 
land v. Northern Missouri Railroad Co., 31 Mo. 180 ; Mays v. Cincinnati, 1 Ohio, 
N. s. 268 ; Frost v. Belmont, 6 Allen, 152 ; Hess v. Pegg, 7 Nev. 23. 

[211] 



* 192 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

deemed unwise, impolitic, or unjust, and even abolish them alto- 
gether in the legislative discretion. 1 The rights and franchises of 

such a corporation, being granted for the purposes of the 
[* 193] government, can never * become such vested rights as 

against the State that they cannot be taken away ; nor 
does the charter constitute a contract in the sense of the constitu- 
tional provision which prohibits the obligation of contracts being 
violated. 2 Restraints on the legislative power of control must be 

1 St. Louis v. Allen, 13 Mo. 400; Coles v. Madison Co., Breese, 115; Rich- 
land County v. Lawrence County, 12 111. 1 ; Trustees of Schools v. Tatman, 13 
111. 27 ; Robertson v. Rockford, 21 111. 1 ; People v. Power, 25 III 187 ; St. Louis 
v, Russell, 9 Mo. 503 ; State v. Cowan, 29 Mo. 330 ; McKim v. Odorn, 3 Bland, 
407 ; Granby v. Thurston, 23 Conn. 41G ; Harrison Justices v. Holland, 3 Grat. 
247 ; Brighton v. Wilkinson, 2 Allen, 27 ; Sloan v. State, 8 Blackf. 361 ; Mills 
v. Williams, 11 Ired. 558; Langworthy v. Dubuque, 16 Iowa, 271; Weeks v. 
Milwaukee, 10 Wis. 242 ; State v. Branin, 3 Zab. 484; Patterson v. Society, &c, 
4 Zab. 385; Atchison v. Bartholow, 4 Kansas, 124; City of St. Louis v. Caffe- 
rata, 24 Mo. 94 ; People v. Draper, 15 N. Y. 532 ; Aspinwall v. Commissioners, 
&c, 22 How. 364; Howard v. McDiamid, 26 Ark. 100; Philadelphia v. Fox, 
64 Penn. St. 169 ; Bradshaw v. Omaha, 1 Neb. 16 ; Kuhn v. Board of Educa- 
tion, 4 W. Va. 499; Sinton v. Ashbury, 41 Cal. 530; Hess v. Pegg, 7 Nev. 23. 
The legislature may in its discretion recall to itself and exercise so much of 
such powers as it has conferred upon municipal corporations as is not secured to 
them by the constitution. People v. Pinkney, 32 N. Y. 377. The creditors of a 
county cannot prevent the legislature reducing its limits, notwithstanding their 
security may be diminished thereby. Wade v. Richmond, 18 Grat. 583. This 
power is not defeated or effected by the circumstance that the municipal corpo- 
ration was by its charter made the trustee of a charity ; and in such case, if the 
corporation is abolished, the Court of Chancery may be empowered and directed 
by the repealing act to appoint a new trustee to take charge of the property and 
execute the trust. Montpelier v. East Montpelier, 29 Vt. 12. And see Harri- 
son v. Bridgeton, 16 Mass. 16 ; Montpelier Academy v. George, 14 La. An. 
406 ; Reynolds v. Baldwin, 1 La. An. 162 ; Police Jury v. Shreveport, 5 La. An. 
665. But neither the identity of a corporation, nor its right to take property by 
devise, is destroyed by a change in its name, or enlargement of its area, or an 
increase in the number of its corporators. Girard v. Philadelphia, 7 Wall. 1. 
Changing a borough into a city does not of itself abolish or affect the existing 
borough ordinances. Trustees of Erie Academy v. City of Erie, 31 Penn. St. 515. 
Nor will it affect the indebtedness of the corporation, which will continue to be 
its indebtedness under its new organization. Olney v. Harvey, 50 111. 453. A 
general statute, containing a clause repealing all statutes contrary to its provi- 
sions, does not repeal a clause in a municipal charter on the same subject. State 
v. Branin, 3 Zab. 484. 

2 This principle was recognized by the several judges in Dartmouth College 
». Woodward, 4 Wheat. 518. And see People v. Morris, 13 Wend. 331 ; St. 

[212] 



CH. VIII.] THE GRADES OP MUNICIPAL GOVERNMENT. * 193 

found in the constitution of the State, or they must rest alone in 
the legislative discretion. 1 If the legislative action in these cases 
operates injuriously to the municipalities or to individuals, the 
remedy is not with the courts. The courts have no power to inter- 
fere, and the people must be looked to, to right through the ballot- 
Louis v. Russell, 9 Mo. 507 ; Montpelier v. East Montpelier, 29 Vt. 12 ; Trustees 
of Schools v. Tatman, 13 111. 30; Brighton v. Wilkinson, 2 Allen, 27; Reynolds 
v. Baldwin, 1 La. An. 162; Police Jury v. Shreveport, 5 La. An. 665; Mt. Car- 
mel v. Wabash County, 50 111. 69 ; Dillon, Mun. Corp. §§ 24, 30, 37. 

1 " Where a corporation is the mere creature of legislative will, established 
for the general good and endowed by the State alone, the legislative may, at 
pleasure, modify the law by which it was created. For in that case there would 
be but one party affected, — the government itself, — and therefore not a con- 
tract within the meaning of the constitution. The trustees of such a corporation 
would be the mere mandatories of the State, having no personal interest involved, 
and could not complain of any law that might abridge or destroy their agency." 
Montpelier Academy v. George, 14 La. An. 406. In Trustees of Schools v. 
Tatman, 13 111. 30, the court say: "Public corporations are but parts of the 
machinery employed in carrying on the affairs of the State ; and they are subject 
to be changed, modified, or destroyed, as the exigencies of the public may 
demand. The State may exercise a general superintendence and control over 
them and their rights and effects, so that their properly is not diverted from the 
uses and objects for which it was given or purchased." It is a lawful exercise 
of legislative authority upon the division of counties, towns, &c, to confer a 
part of the corporate property of the old corporation upon the new, and to 
direct the old body to pay it over to the new. Harrison v. Bridgeton, 16 Mass. 
16 ; Bristol v. New Chester, 3 N. H. 524 ; Milwaukee Town v. Milwaukee City, 
12 Wis. 93 ; Marshall Co. Court v. Calloway Co. Court, 3 Bush, 93. But it 
seems that this apportionment of property can only be made at the time of the 
division. Windham v. Portland, 4 Mass. 390 ; Hampshire v. Franklin, 16 Mass. 
76. See Richland v. Lawrence, 12 111. 8; Bowdoinham v. Richmond, 6 Greenl. 
112. In the latter case, it was held that the apportionment of debts between an 
old town and one created from it was in the nature of a contract ; and it was not 
in the power of the legislature afterwards to release the new township from pay- 
ment of its share as thus determined. But the case of Layton v. New Orleans, 
12 La. An. 515, is contra. See also Borough of Dunmore's Appeal, 52 Penn. St. 
374, which in principle seems to accord with the Louisiana case. In Burns v- 
Clarion County, 62 Penn. St. 422, it was held the legislature had the power to 
open a settlement made by county creditors with the county treasurer, and to 
compel them to settle with him on principles of equity. See further Cambridge 
V. Lexington, 17 Pick. 222 ; Attorney-General v. Cambridge, 16 Gray, 247 ; 
Clark v. Cambridge, &c, Bridge Proprietors, 104 Mass. 236. The legislature 
has power to lay out a road through several towns, and apportion the expense 
between them. Waterville v. Kennebeck County, 59 Me. 80; Commonwealth 
v. Newburyport, 103 Mass. 129. 

[ 213 ] 



* 193 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

box all these wrongs. 1 This is the general rule ; and the excep- 
tions to it are not numerous, and will be indicated hereafter. 

[*194] * Powers of Public Corporations. 

The powers of these corporations are either express or implied. 
The former are those which the legislative act under which they 
exist confers in express terms ; the latter are such as are neces- 
sary in order to carry into effect those expressly granted, and 
which must, therefore, be presumed to have been within the inten- 
tion of the legislative grant. 2 Certain powers are also incidental 
to corporations, and will be possessed unless expressly or by 
implication prohibited. Of these an English writer has said : 
" A municipal corporation lias at common law few powers beyond 
those of electing, governing, and removing its members, and reg- 
ulating its franchises and property. The power of its governing 

1 " The correction of these abuses is as readily attained at the ballot-box 
as it would be by subjecting it to judicial revision. A citizen or a number of 
citizens may be subtracted from a county free from debt, having no taxation for 
county purposes, and added to an adjacent one, whose debts are heavy, and 
whose taxing powers are exercised to the utmost extent allowed by law, and this, 
too, without consulting their wishes. It is done every day. Perhaps a majority 
of the people, thus annexed to an adjacent or thrown into a new county by the 
division of an old one, may have petitioned the legislature for this change ; but 
this is no relief to the outvoted minority, or the individual who deems himself 
oppressed and vexed by the change. Must we, then, to prevent such occasional 
hardships, deny the power entirely ? 

" It must be borne in mind that these corporations, whether established over 
cilies, counties, or townships (where such incorporated subdivisions exist), are 
never intrusted and can never be intrusted with any legislative power inconsist- 
ent or conflicting with the general laws of the land, or derogatory to those rights 
either of person or property which the constitution and the general laws guarantee. 
They are strictly subordinate to the general laws, and merely created to carry 
out the purposes of those laws with more certainty and efficiency. They may 
be and sometimes are intrusted with powers which properly appertain to private 
corporations, and in such matters their power as mere municipal corporations 
ceases." City of St. Louis v. Allen, 13 Mo. 414. 

2 2 Kent, 278, note; Halstead v. Mayor, &c, of New York, 3 N. Y. 433; 
Hodges v. Buffalo, 2 Denio, 112 ; New London v. Brainerd, 22 Conn. 552 ; State 
v. Ferguson, 33 N. H. 424; McMillan v. Lee County, 3 Iowa, 311; La Fayette 
v. Cox, 5 Ind. 38; Clark v. Des Moines, 19 Iowa, 212; State v. Morristown, 
33 N. J. 63 ; Beaty v. Knowler, 4 Pet. 162 ; Mills v. Gleason, 11 Wis. 470. In 
this last case, it was held that these corporations had implied power to borrow 
money for corporate purposes. And see also Ketcham v. Buffalo, 14 N. Y. 356. 

[214] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 194 

officers can only extend to the administration of the by-laws and 
other ordinances by which the body is regulated." * But without 
being expressly empowered so to do, they may sue and be sued ; 
may have a common seal ; may purchase and hold lands 
and other * property for corporate purposes, and convey [* 195] 
the same ; may make by-laws whenever necessary to 
accomplish the design of the incorporation, and enforce the same 
by penalties ; and may enter into contracts to effectuate the cor- 
porate purposes. 2 Except as to these incidental powers, and which 
need not be, though they usually are, mentioned in the charter, the 
charter itself, or the general law under which they exist, is the 
measure of the authority to be exercised. 

And the general disposition of the courts in this country has 
been to confine municipalities within the limits that a strict con- 
struction of the grants of powers in their charters will assign to 
them; thus applying substantially the same rule that is applied to 
charters of private incorporation. 3 The reasonable presumption is 

1 Willcock on Municipal Corporations, tit. 769. 

2 Angell and Ames on Corp. §§ 111, 239; 2 Kyd on Corp. 102; State v. 
Ferguson, 33 N. H. 430. See Dillon, Mun. Corp. for an examination in the 
light of the authorities of the several powers here mentioned. 

3 Under a city charter which authorized the common council to appoint asses- 
sors for the purpose of awarding damages to those through whose property a 
street might be opened, and to assess such damages on the property benefited, 
it was decided that the council were not empowered to levy a tax to pay for the 
other expenses of opening the street. Reed v. Toledo, 18 Ohio, 161. So a 
power to enact by-laws and ordinances to abate and remove nuisances will not 
authorize the passing of an ordinance to prevent nuisances, or to impose penalties 
for the creation thereof. Rochester v. Collins, 12 Barb. 559. A power to impose 
penalties for obstructions to streets would not authorize the like penalties for 
encroachments upon streets, where, under the general laws of the State, the 
offences are recognized as different and distinct. Grand Rapids v. Hughes, 15 
Mich. 54. Authority to levy a tax on real and personal estate would not warrant 
an income tax, especially when such a tax is unusual in the State. Mayor of 
Savannah v. Hartridge, 8 Geo. 23. It will appear, therefore, that powers near 
akin to those expressly conferred are not, for that reason, to be taken by impli- 
cation. And see Commonwealth v. Erie and X. E. Railroad Co., 27 Penn. St. 
339. This rule has often been applied where authority has been asserted on 
behalf of a municipal corporation to loan its credit to corporations formed to 
construct works of internal improvement. See La Fayette v. Cox, 5 Ind. 38. 
A power to pass ordinances to prohibit the sale or giving away of intoxicating 
liquors in certain special cases is an implied exclusion of the power to prohibit 
the sale or giving away in other cases. State v. Ferguson, 33 N. H. 424. In 
Dunham v. Rochester, 5 Cow. 465, it is said: "For all the purposes of juris- 

[215] 



* 195 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

that the State has granted in clear and unmistakable terms all it 

has designed to grant at all. 
[* 196] * It must follow that, if in any case a party assumes to 
deal with a corporation on the supposition that it possesses 
powers which it does not, or to contract in any other manner than 
is permitted by the charter, he will not be allowed, notwithstand- 
ing he may have complied with the undertaking on his part, to 
maintain a suit against the corporation based upon its unauthorized 
action. Even where a party is induced to enter upon work for a 
corporation by the false representations of corporate officers, in 
regard to the existence of facts on which by law the power of the 
corporation to enter upon the work depends, these false representa- 
tions cannot have the effect to give a power which in the particular 
case was wanting, or to validate a contract otherwise void, and 
therefore can afford no ground of action against the corporation ; 
but every party contracting with it must take notice of any want 
of authority which the public records would show. 1 This is the 

i 

diction corporations are like the inferior courts, and must show the power given 
them in every case. If this be wanting, their proceedings must be holden void 
whenever they come in question, even collaterally ; for they are not judicial and 
subject to direct review on certiorari. 2 Kyd on Corp. 104-107." See also 
Milhau v. Sharp, 17 Barb. 435, 28 Barb. 228, and 27 N. Y. 611; Douglass v. 
Placerville, 18 Cal. 643 ; Mount Pleasant v. Breeze, 11 Iowa, 399 ; Hooper v. 
Emery, 14 Me. 375; Mayor, &c, of Macon v. Macon and Western R.R. Co., 
7 Geo. 224; Hopple v. Brown, 13 Ohio, n. s. 311 ; Lackland v. Northern Mis- 
souri Railroad Co., 31 Mo. 180 ; Smith v. Morse, 2 Cal. 524 ; Bennett v. Borough 
of Birmingham, 31 Penn. St. 15; Tucker v. Virginia City, 4 Nev. 20; Leaven- 
worth v. Norton, 1 Kansas, 432 ; Kyle v. Malin, 8 Ind. 34; Johnson v. Philadel- 
phia, 60 Penn. St. 451 ; Kniper v. Louisville, 7 Bush, 599 ; English v. Chicot 
County, 26 Ark. 454; Pullen v. Raleigh, 68 N. C. 451. 

1 The common council of Williamsburg had power to open, regulate, grade, 
and pave streets, but only upon petition signed by one third of the persons own- 
ing lands within the assessment limits. A party entered into a contract with the 
corporation for improving a street upon the false representations of the council 
that such a petition had been presented. Held, that the provision of the law 
being public, and all the proceedings leading to a determination by the council 
to make a particular improvement being matters of record, all persons were 
chargeable with notice of the law and such proceedings ; and that, notwithstand- 
ing the false representations, no action would lie against the city for work done 
under the contract. Swift v. Williamsburg, 24 Barb. 427. " If the plaintiff can 
recover on the state of facts he has stated in his complaint, the restrictions and 
limitations which the legislature sought to impose upon the powers of the com- 
mon council will go for nothing. And yet these provisions are matters of 

[216] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 196 

general rule, and the cases of unauthorized action which may bind 
the corporation are exceptional, and will be referred to further on. 

substance, and were designed to be of some service to the constituents of the 
common council. They were intended to protect the owners of lands and the 
tax-payers of the city, as well against the frauds and impositions of the con- 
tractors who might be employed to make local improvements, as against the 
illegal acts of the common council themselves in employing the contractors. 
But if the plaintiff can recover in this action, of what value or effect are all these 
safeguards ? If the common council desire to make a local improvement, which 
the persons to be benefited thereby, and to be assessed therefor, are unwilling 
to have made, the consent of the owners may be wholly dispensed with, accord- 
ing to the plaintiff's theory. The common council have only to represent that 
the proper petition has been presented and the proper proceedings have been 
taken, to warrant the improvement. They then enter into the contract. The 
improvement is made. Those other safeguards for an assessment of the ex- 
penses and for reviewing the proceedings may or may not be taken. But when 
the work is completed and is to be paid for, it is found that the common council 
have no authority to lay any assessment or collect a dollar from the property 
benefited by the improvement. The contractor then brings his action, and 
recovers from the city the damages he has sustained by the failure of the city to 
pay him the contract price. The ground of his action is the falsity of the repre- 
sentations made to him. But the truth or falsity of such representations might 
have been ascertained by the party with the use of the most ordinary care and 
diligence. The existence of the proper petition, and the taking of the necessary 
initiatory steps to warrant the improvement, were doubtless referred to and 
recited in the contract made with the plaintiff. And he thus became again directly 
chargeable with notice of the contents of all these papers. It is obvious that the 
restrictions and limitations imposed by the law cannot be thus evaded. The 
consent of the parties interested in such improvements cannot be dispensed with ; 
the responsibility, which the conditions precedent created by the statute impose, 
cannot be thrown off in this manner. For the effect of doing so is to shift entirely 
the burden of making these local improvements, to relieve] those on whom the 
law sought to impose the expense, and to throw it on others who are not liable 
either in law or morals." 

So where the charter of Detroit provided that no public work should be con- 
tracted for or commenced until an assessment had been levied to defray the 
expense, and that no such work should be paid or contracted to be paid for, 
except out of the proceeds of the tax thus levied, it was held, that the city cor- 
poration had no power to make itself responsible for the price of any public 
work, and that such work could only be paid for by funds actually in the hands 
of the city treasurer, provided for the specific purpose. Goodrich v. Detroit, 12 
Mich. 279. But if the city receives the fund and misappropriates it, it will be 
liable. Lansing v. Van Gorder, 24 Mich. 456. 

Parties dealing with the agents or officers of municipal corporations must, at 
their own peril, take notice of the limits of the powers both of the municipal 
corporation, and of those assuming to act on its behalf. State v. Kirkley, 29 

[217] 



197 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 



[* 197] * Corporations by Prescription and Implication. 

The origin of many of the corporate privileges asserted and 
enjoyed in England is veiled in obscurity, and it is more than 
probable that in some instances they had no better foundation than 
an uninterrupted user for a considerable period. In other cases 
the regal or baronial grant became lost in the lapse of time, and 
the evidence that it had ever existed might rest exclusively upon 
reputation, or upon the inference to be drawn from the exercise of 
corporate functions. In all these cases it seems to be the law that 
the corporate existence may be maintained on the ground of pre- 
scription ; that is to say, the exercise of corporate rights for a 
time whereof the memory of man runneth not to the contrary is 
sufficient evidence that such rights were once granted by com- 
petent authority, and are therefore now exercised by right and not 
by usurpation. 1 And this presumption concludes the crown, not- 
withstanding the maxim that the crown shall lose no rights by 
lapse of time. If the right asserted is one of which a grant might 
be predicated, a jury is bound to presume a grant from that pre- 
scription. 2 In this particular the claim to a corporate franchise 
stands on the same ground as any claim of private right which 
requires a grant for its support, and is to be sustained under 
the same circumstances of continuous assertion and enjoyment. 3 
And even the grant of a charter by the crown will not preclude 
the claim to corporate rights by prescription ; for a new charter 
does not extinguish old privileges. 4 

A corporation may also be established upon presumptive evidence 
that a charter has been granted within the time of memory. Such 
evidence is addressed to a jury, and though not conclusive upon 

Md. 85; Gould v. Sterling, 23 N. Y. 464; Clark v. Des Moines, 19 Iowa, 209; 
Veeder v. Lima, 19 Wis. 280; Dillon, Mun. Corp. § 381. 

1 Introduction to Willcock on Municipal Corporations ; The King v. Mayor, 
&c, of Stratford upon Avon, 14 East, 360 ; Robie v. Sedgwick, 35 Barb. 326. 
See Londonderry v. Andover, 28 Vt. 416. 

2 Mayor of Hull v. Horner, Cowp. 108, per Lord Mansfield. Compare 
People v. Maynard, 15 Mich. 470 ; State v. Bunker, 59 Me. 366. 

3 2 Kent, 277 ; Angell and Ames on Corp. § 70 ; 1 Kyd on Corp. 14. 

4 Hadduck's Case, T. Raym. 439 ; The King v. Mayor, &c, of Stratford upon 
Avon, 14 East, 360 ; Bow v. Allenstown, 34 N. H. 366. See Jameson v. People, 
16 111. 259. 

[218] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 197 

them, yet if it reasonably satisfies their minds, it will justify them 
in a verdict finding the corporate existence. " There is a great 
difference," says Lord Mansfield, " between length of time which 
operates as a bar to a claim, and that which is »only used by way 
of evidence. A jury is concluded by length of time which operates 
as a bar ; as where the statute of limitations is pleaded to a debt ; 
though the jury is satisfied that the debt is still due and unpaid, it 
is still a bar. So in the case of presumption. If it be time out of 
mind, a jury is bound to preclude the right from that prescription, 
if there could be a legal commencement of the right. But any 
written evidence, showing that there was a time when the prescrip- 
tion did not exist, is an answer to a claim founded on prescription. 
But length of time used merely by way of evidence may be left to 
the consideration of the jury, to be credited or not, and to draw 
their inference one way or the other according to circumstances." 1 
The same ruling has been had in several cases in the courts of 
this country, where corporate powers had been exercised, but no 
charter could be produced. In one of these cases common reputa- 
tion that a charter had once existed was allowed to be given to the 
jury ; the court remarking upon the notorious fact that two great 
fires in the capital of the colony had destroyed many of the public 
records. 2 In other cases there was evidence of various acts which 
could only lawfully and properly be done by a corporation, cover- 
ing a period of thirty, forty, or fifty years, and done with the 
knowledge of the State and without question. 3 The inference of 
corporate powers, however, is not one of law ; but is to be drawn 
as a fact by the jury. 4 

Wherever a corporation is found to exist by prescription, the 
same rule as to construction of powers, we apprehend, 
would apply as in other cases. * The presumption as to [* 198] 
the powers granted would be limited by the proof of the 

1 Mayor of Hull v. Horner, Cowp. 108, 109 ; citing, among other cases, Bedle 
v. Beard, 12 Co. 5. 

2 Dillingham v. Snow, 5 Mass. 552. And see Bow v. Allenstown, 34 N. H. 
351. 

3 Stockbridge v. West Stockbridge, 12 Mass. 400; New Boston v. Dumbarton, 
13 N. H. 409, and 15 N. H. 201; Bow v. Allenstown, 34 N. H. 351; Trott v. 
Warren, 2 Fairf. 227. 

4 New Boston v. Dunbarton, 15 N. H. 201 ; Bow v. Allenstown, 34 N. H. 351 ; 
Mayor of Hull v. Horner, 14 East, 102. 

[219] 



* 198 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

usage, and nothing could be taken by intendment which the usage 
did not warrant. 

Corporations are also said sometimes to exist by implication. 
When that power in the State which can create corporations grants 
to individuals such property, rights, or franchises, or imposes upon 
them such burdens, as can only be properly held, enjoyed, con- 
tinued, or borne, according to the terms of the grant, by a corporate 
entity, the intention to create such corporate entity is to be pre- 
sumed, and corporate capacity is held to be conferred so far as is 
necessary to effectuate the purpose of the grant or burden. On 
this subject it will be sufficient for our purpose to refer to authori- 
ties named in the note. 1 In these cases the rule of strict con- 
struction of corporate powers applies with unusual force. 

Municipal By-Laws. 

The power of municipal corporations to make by-laws is limited 
in various ways. 

1. It is controlled by the Constitution of the United States and 
of the State. The restrictions imposed by those instruments, and 
which directly limit the legislative power of the State, rest equally 
upon all the instruments of government created by the State. If 
a State cannot pass an ex post facto law, or law impairing the obli- 
gation of contracts, neither can any agency do so which acts under 
the State with delegated authority. 2 By-laws, therefore, which 
in their operation would be ex post facto, or violate contracts, are 

1 Dyer, 400, cited by Lord Kenyon, in Russell v. Men of Devon, 2 T. R. 672, 
and in 2 Kent, 276; Viner's Abr. tit. "Corporation"; Conservators of River 
Tone v. Ash, 10 B. & C. 349 ; s. c. ib. 383, citing case of Sutton Hospital, 
10 Co. 28 ; per Kent, Chancellor, in Denton v. Jackson, 2 Johns. Ch. 325 ; 
Coburn v. Ellenwood, 4 N. H. 101; Atkinson v. Bemis, 11 N. H. 46; North 
Hempstead v. Hempstead, 2 Wend. 109 ; Thomas v. Dakin, 22 Wend. 9 ; per 
Shaiv, Ch. J., in Stebbins v. Jennings, 10 Pick. 188; Mahony v. Bank of the 
State, 4 Ark. 620. 

2 Angell and Ames on Corporations, §332; Stuyvesant «. Mayor, &c, of New 
York, 7 Cow. 588; Brooklyn Central Railroad Co. v. Brooklyn City Railroad 
Co., 32 Barb. 358; Illinois Conference Female College v. Cooper, 25 111. 148. 
The last was a case where a by-law of an educational corporation was held void, 
as violating the obligation of a contract previously entered into by the corpora- 
tion in a certificate of scholarship which it had issued. See also Davenport, &c, 
Co. v. Davenport, 13 Iowa, 229 ; Saving Society v. Philadelphia, 31 Penn. St. 
175 ; Haywood v. Savannah, 12 Geo. 404. 

[220] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 198 

not within the power of municipal corporations ; and whatever the 
people by the State constitution have prohibited the State govern- 
ment from doing, it cannot do indirectly through the local govern- 
ments. 

2. Municipal by-laws must also be in harmony with the general 
laws of the State, and with the provisions of the municipal charter. 
Whenever they come in conflict with either, the by-law must give 
way. 1 The charter, however, may expressly or by necessary impli- 
cation exclude the general laws of the State on any particular 
subject, and allow the corporation to pass local laws at discretion, 
which may differ from the rule in force elsewhere. 2 But in these 
cases the control of the State is not excluded if the legislature 
afterward see fit to exercise it ; nor will conferring a power 
upon a * corporation to pass by-laws and impose penalties [* 199] 
for the regulation of any specified subject necessarily super- 
sede the State law on the same subject, but the State law and the 
by-law may both stand together if not inconsistent. 3 Indeed, 
the same act may constitute an offence against both the State and 
the municipal corporation, and may be punished under both with- 
out violation of any constitutional principle. 4 

1 Wood v. Brooklyn, 14 Barb. 428 ; Mayor, &c, of New York v. Nichols, 4 
Hill, 209 ; Petersburg v. Metzker, 21 111. 205 ; Southport v. Ogden, 23 Conn. 
128; Andrews v. Insurance Co., 37 Me. 256; Canton v. Nist, 9 Ohio, N. s. 439; 
Carr v. St. Louis, 9 Mo. 191 ; Commonwealth v. Erie and Northeast Railroad 
Co., 27 Penn. St. 339; Burlington v. Kellar, 18 Iowa, 59; Conwell v. O'Brien, 
11 Ind. 419 ; March v. Commonwealth, 12 B. Monr. 25. See Baldwin v. Green, 
10 Mo. 410 ; Cowen v. West Troy, 43 Barb. 48 ; State v. Georgia Medical 
Society, 38 Geo. 629 ; Pesterfield v. Vickers, 3 Cold. 205 ; Mays v. Cincinnati, 
1 Ohio, N. s. 268 ; Wirth v. Wilmington, 68 N. C. 24. 

2 State v. Clarke, 1 Dutch. 54. Peculiar and exceptional regulations may 
even be made applicable to particular portions of a city only, and yet not be 
invalid. Goddard, Petitioner, 16 Pick. 504 ; Commonwealth v. Patch, 97 Mass. 
222, per Hoar, J. ; St. Louis v. Weber, 44 Mo. 547. 

3 City of St. Louis v. Bentz, 11 Mo. 61 ; City of St. Louis v. Cafferata, 24 
Mo. 97 ; Rogers v. Jones, 1 Wend. 261 ; Levy v. State, 6 Ind. 281 ; Mayor, &c, 
of Mobile v. Allaire, 14 Ala. 400. 

4 Such is the clear weight of authority, though the decisions are not uniform. 
In Rogers v. Jones, 1 Wend. 261, it is said: " But it is said that the by-law of 
a town or corporation is void, if the legislature have regulated the subject by law. 
If the legislature have passed a law regulating as to certain things in a city, I 
apprehend the corporation are not thereby restricted from making further reg- 
ulations. Cases of this kind have occurred and never been questioned on that 
ground ; it is only to notice a case or two out of many. The legislature have 

[221] 



* 200 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

[* 200] * 3. Municipal by-laws must also be reasonable. When- 
ever they appear not to be so, the court must, as a matter 

imposed a penalty of one dollar for servile labor on Sunday ; the corporation of 
New York have passed a by-law imposing the penalty of five dollars for the same 
offence. As to storing gunpowder in New York, the legislature and corporation 
have each imposed the same penalty. Suits to recover the penalty have been 
sustained under the corporation law. It is believed that the ground has never 
been taken that there was a conflict with the State law. One of these cases is 
reported in 12 Johns. 122. The question was open for discussion, but not noticed." 
In Mayor, &c, of Mobile v. Allaire, 14 Ala. 400, the validity of a municipal by- 
law imposing a fine of fifty dollars, for an assault and battery committed within 
the city, was brought in question. Collier, Ch. J., says, p. 403 : " The object of 
the power conferred by the charter, and the purpose of the ordinance itself was 
not to punish for an offence against the criminal justice of the country, but to 
provide a mere police regulation, for the enforcement of good order and quiet 
within the limits of the corporation. So far as an offence has been committed 
against the public peace and morals, the corporate authorities have no power to 
inflict punishment, and we are not informed that they have attempted to arrogate 
it. It is altogether immaterial whether the State tribunal has interfered and 
exercised its powers in bringing the defendant before it to answer for the assault 
and battery ; for whether he has there been punished or acquitted is alike unim- 
portant. The offence against the corporation and the State we have seen are 
distinguishable and wholly disconnected, and the prosecution at the suit of each 
proceeds upon a different hypothesis ; the one contemplates the observance of the 
peace and good order of the city ; the other has a more enlarged object in view, 
the maintenance of the peace and dignity of the State." See also Mayor, &c, 
of Mobile v. Rouse, 8 Ala. 515 ; Intendant, &c, of Greensboro v. Mullins, 13 Ala. 
341 ; Mayor, &c, of New York v. Hyatt, 3 E. I). Smith, 156 ; People v. Stevens, 
13 Wend. 311 ; Blatchley v. Moser, 15 Wend. 215 ; Levy v. State, 6 Ind. 281 ; 
Ambrose v. State, ib. 351; Lawrenceburg v. Wuest, 16 Ind. 337; Amboy v. 
Sleeper, 31 111. 499 ; St. Louis v. Bentz, 11 Mo. 61 ; St. Louis v. Cafferata, 24 
Mo. 94; Shafer d. Mumma, 17 Md. 331. On the other hand it was held in 
State v . Cowan, 29 Mo. 330, that where a municipal corporation was authorized 
to take cognizance of and punish an act as an offence against its ordinances 
which was also an offence against the general laws of the State, and this power 
was exercised and the party punished, he could not afterwards be proceeded 
against under the State law. "The constitution," say the court, "forbids that 
a person shall be twice punished for the same offence. To hold that a party can 
be prosecuted for an act under the State laws, after he has been punished for the 
same act by the municipal corporation within whose limits the act was done, 
would be to overthrow the power of the General Assembly to create corporations 
to aid in the management of the affairs of the State. For a power in the State to 
punish, after a punishment had been inflicted by the corporate authorities, could 
only find a support in the assumption that all the proceedings on the part of the 
corporation were null and void. The circumstance that the municipal authorities 
have not exclusive jurisdiction over the acts which constitute offences within their 
[ 222 ] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 200 

of law, declare them void. 1 To render them reasonable, they 
should tend in some degree to the accomplishment of the 
objects for which the corporation * was created and its [* 201] 
powers conferred. A by-law, that persons chosen annually 
as stewards of the Society of Scriveners should furnish a dinner 
on election day to the freemen of the society, — the freemen not 
being the electors nor required to attend, and the office of steward 
being for no other purpose but that of giving the dinner, — was 

limits does not affect the question. It is enough that their jurisdiction is not 
excluded. If it exists, — although it may be concurrent, — if it is exercised, it 
is valid and binding so long as it is a constitutional principle that no man may be 
punished twice for the same offence." This case seems to be supported by State 
v. Welch, 36 Conn. 216, and the case of Slaughter v. People, cited below, goes 
still further. Those which hold that the party may be punished under both the 
State and the municipal law are within the principle of Fox v. State, 5 How. 410 ; 
Moore v. People, 14 How. 13. And see Phillips v. People, 55 111. 429. In 
Jefferson City v. Courtmire, 9 Mo. 692, it was held that authority to a municipal 
corporation to " regulate the police of the city " gave it no power to pass an 
ordinance for the punishment of indictable offences. And in Slaughter v. People, 
2 Doug. (Mich.) 334, it was held not competent to punish, under city by-laws, 
an indictable offence. 

Where an act is expressly or by implication permitted by the State law, it can- 
not be forbidden by the corporation. Thus, the statutes of New York established 
certain regulations for the putting up and marking of pressed hay. and provided 
that such hay might be sold without deduction for tare, and by the weight as 
marked, or any other standard weight that should be agreed upon. It was held 
that the city of New York had no power to prohibit under a penalty the sale of 
such hay without inspection ; this being obviously inconsistent with the statute 
which gave a right to sell if its regulations were complied with. Mayor, &c, of 
New York v. Nichols, 4 Hill, 209. 

1 2 Kyd on Corporations, 107 ; Davies v. Morgan, 1 Cromp. & J. 587 ; Cham- 
berlain of London v. Compton, 7 D. & R. 597 ; Clark v. Le Cren, 9 B. & C. 52; 
Gosling v. Veley, 12 Q. B. 347 ; Dunham v. Rochester, 5 Cow. 462 ; Mayor, &c, 
of Memphis v. Winfield, 8 Humph. 707 ; Hayden v. Noyes, 5 Conn. 391 ; Waters 
v. Leech, 3 Ark. 110 ; White v. Mayor, 2 Swan, 364 ; Ex parte Burnett, 30 Ala. 
461 ; Craig v. Burnett, 32 Ala. 728; Austin v. Murray, 16 Pick. 121; Godard, 
Petitioner, ib. 504 ; Commonwealth v. Worcester, 3 Pick. 462 ; Commissioners 
v. Gas Co., 12 Penn. St. 318; State v. Jersey City, 5 Dutch. 170; Gallatin v. 
Bradford, 1 Bibb, 209 ; Carew v. Western Union Telegraph Co., 15 Mich. 525 ; 
State v. Freeman, 38 N. H. 426 ; Pedrick v. Bailey, 12 Gray, 161 ; St. Louis v. 
Weber, 44 Mo. 550. But where the question of the reasonableness of a by-law 
depends upon evidence, and it relates to a subject within the jurisdiction of the 
corporation, the court will presume it to be reasonable until the contrary is 
shown. Commonwealth v. Patch, 97 Mass. 221. And see St. Louis v. Weber, 

[ 223] 



* 201 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

held not connected with the business of the corporation, and not 
tending to promote its objects, and therefore unreasonable and 
void. 1 And where a statute permitted a municipal corporation 
to license the sale of intoxicating drinks and to charge a license 
fee therefor, a by-law requiring the payment of a license fee of 
one thousand dollars was held void as not advancing the purpose 
of the law, but as being in its nature prohibitory. 2 And if a cor- 
poration has power to prohibit the carrying on of dangerous occu- 
pations within its limits, a by-law which should permit one person 
to carry on such an occupation and prohibit another, who had an 
equal right, from pursuing the same business ; or which should 
allow the business to be carried on in existing buildings, but pro- 
hibit the erection of others for it, would be unreasonable. 3 And 
a right to license an employment does not imply a right to charge 
a license fee therefor with a view to revenue, unless such seems 
to be the manifest purpose of the power ; but the authority of the 
corporation will be limited to such a charge for the license as will 
cover the necessary expenses of issuing it, and the additional 
labor of officers and other expenses thereby imposed. A license 
is issued under the police power ; but the exaction of a license 
fee with a view to revenue would be an exercise of the power of 
taxation ; and the charter must plainly show an intent to confer 
that power, or the municipal corporation cannot assume it. 4 

1 Society of Scriveners v. Brooking, 3 Q. B. 95. See, on this general subject, 
Dillon, Mun. Corp. § 251 to 264. 

2 Ex parte Burnett, 30 Ala. 461 ; Craig v. Burnett, 32 Ala. 728. 

3 Mayor, &c, of Hudson v. Thorne, 7 Paige, 261. A power to prevent and 
regulate the carrying on of manufactures dangerous in causing or promoting fires 
does not authorize an ordinance prohibiting the erection of wooden buildings 
within the city, or to limit the size of buildings which individuals shall be per- 
mitted to erect on their own premises. Ibid. An ordinance for the destruction 
of property as a nuisance without a judicial hearing is void. Darst v. People, 
51 111. 286. An ordinance for the arrest and imprisonment without warrant of 
a person refusing to assist in extinguishing a fire is void. Judson v. Reardon, 
16 Minn. 431. 

4 State v. Roberts, 11 Gill & J. 506; Mays v. Cincinnati, 1 Ohio, n. s. 268; 
Cincinnati v. Bryson, 15 Ohio, Q2o ; Freeholders v. Barber, 2 Halst. 64 ; Kip v. 
Paterson, 2 Dutch. 298; Bennett v. Borough of Birmingham, 31 Penn. St. 15; 
Commonwealth v. Stodder, 2 Cush. 562 ; Chilvers v. People, 11 Mich. 43; Mayor, 
&c, of Mobile v. Yuille, 3 Ala. 144; Johnson v. Philadelphia, 60 Penn. St. 451 ; 
State w.Herod, 29 Iowa, 123; Mayor, &c, of New York v. Second Avenue 
R.R. Co., 32 N. Y. 261. Nevertheless, the courts will not inquire very closely 

[ 224] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 202 

*A by-law to be reasonable should be certain. If it [* 202] 
affixes a penalty for its violation, it would seem that such 
penalty should be a fixed and certain sum, and not left to the dis- 
cretion of the officer or court which is to impose it on conviction ; 
though a by-law imposing a penalty not exceeding a certain sum 
has been held not to be void for uncertainty. 1 

So a by-law to be reasonable should be in harmony with the 
general principles of the common law. If it is in general re- 
straint of trade, — like the by-law that no person shall exercise 
the art of painter in the city of London, not being free of the com- 
pany of painters, — it will be void on this ground. 2 To take an 
illustration from a private corporation : it has been held that a 
by-law of a bank, that all payments made or received by the bank 
must be examined at the time, and mistakes corrected before the 
dealer leaves, was unreasonable and invalid, and that a recovery 
might be had against the bank for an over-payment discovered 
afterwards, notwithstanding the by-law. 3 So a by-law of a town, 

into the expense of a license with a view to adjudge it a tax, where it does not 
appear to be unreasonable in amount in view of its purpose as a regulation. Ash 
v. People, 11 Mich. 317 ; Johnson v. Philadelphia, 60 Penn. St. 451 ; Burlington 
v. Putnam Ins. Co., 31 Iowa, 102. And in some cases it has been held that 
license fees might be imposed under the police power with a view to operate as 
a restriction upon the business or thing licensed. Carter v. Dow, 16 Wis. 299; 
Tenney v. Lenz, ib. 567. But in such cases, where the right to impose such 
license fees can be fairly deduced from the charter, it would perhaps be safer and 
less liable to lead to confusion and difficulty to refer the corporate authority to 
the taxing power, rather than exclusively to the power of regulation. See Dun- 
ham v. Trustees of Rochester, 5 Cow. 462, upon the extent of the police power. 
Fees which are imposed under the inspection laws of the State are akin to license 
fees, and if exacted not for revenue, but to meet the expenses of regulation, are 
to be referred to the police power. Cincinnati Gas Light Co. v. State, 18 Ohio, 
N. s. 243. On this subject in general, see Dillon, Mun. Corp. § 291 to 308. 

1 Mayor, &c, of Huntsville v. Phelps, 27 Ala. 55, overruling Mayor, &c, of 
Mobile v. Yuille, 3 Ala. 144. And see Piper v. Chappell, 14 M. & W. 624. 

2 Clark v. Le Cren, 9 B. & C. 52 ; Chamberlain of London v. Compton, 7 D; 
& R. 597. Compare Hayden v. Noyes, 5 Conn. 391 ; Willard v. Killingworth, 
8 Conn. 247. But a by-law is not void, as in restraint of trade, which requires 
loaves of bread baked for sale to be of specified weight and properly stamped, 
or which requires bakers to be licensed. Mayor, &c, of Mobile v. Yuille, 3 
Ala. 137. 

3 Mechanics and Farmers Bank v. Smith, 19 Johns. 115; Gallatin v. Brad- 
ord, 1 Bibb, 209. Although these are cases of private corporations, they are 

cited here because the rules governing the authority to make by-laws are the 
same with both classes of corporations. 

15 [ 225 ] 



* 202 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

which, under pretence of regulating the fishery of clams and 
oysters within its limits, prohibits all persons except the inhabi- 
tants of the town from taking shell-fish in a navigable 
[* .203] river, is void as in contravention of common right. 1 *And 
for like reasons a by-law is void which abridges the rights 
and privileges conferred by the general laws of the State, unless 
express authority therefor can be pointed out in the corporate 
charter. 2 And a by-law which assumes to be a police regulation, 
but deprives a party of the use of his property without regard to 
the public good, under the pretence of the preservation of health, 
when it is manifest that such is not the object and purpose of the 
regulation, will be set aside as a clear and direct infringement of 
the right of property without any compensating advantages. 3 

1 Hayden v. Noyes, 5 Conn. 391. As it had been previously held that every 
person has a common-law right to fish in a navigable river or arm of the sea, 
until by some legal mode of appropriation this common right was extinguished, 
— Peck v. Lockwood, 5 Day, 22, — the by-law in effect deprived every citizen, 
except residents of the township, of rights which were vested, so far as from the 
nature of the case a right could be vested. See also Marietta v. Fearing, 4 
Ohio, 427. That a right to regulate does not include a right to prohibit, see 
also Ex ■parte Burnett, 30 Ala. 461 ; Austin v. Murray, 16 Pick. 121. And see 
Milhau v. Sharp, 17 Barb. 435, 28 Barb. 228, and 27 N. Y . 611. 

2 Dunham v. Trustees of Rochester, 5 Cow. 462; Mayor, &c, of New York 
v. Nichols, 4 Hill, 209. See Strauss v. Pontiac, 40 111. 301. 

3 By a by-law of the town of Charlestown all persons were prohibited, with- 
out license from the selectmen, from burying any dead body brought into town 
on any part of their own premises or elsewhere within the town. By the court, 
Wilde, J. : " A by-law to be valid must be reasonable; it must be legi, Jidei, 
rationi consona. Now if this regulation or prohibition bad been limited to the 
populous part of the town, and were made in good faith for the purpose of pre- 
serving the health of the inhabitants, which may be in some degree exposed to 
danger by the allowance of interments in the midst of a dense population, it 
would have been a very reasonable regulation. But it cannot be pretended that 
this by-law was made for the preservation of the health of the inhabitants. Its 
restraints extend many miles into the country, to the utmost limits of the town. 
Now such an unnecessary-restraint upon the right of interring the dead we think 
essentially unreasonable. If Charlestown may lawfully make such a by-law as 
this, all the towns adjoining Boston may impose similar restraints, and conse- 
quently all those who die in Boston must of necessity be interred within the 
precincts of the city. That this would be prejudicial to the health of the inhab- 
itants, especially in the hot seasons of the year, and when epidemic diseases 
prevail, seems to be a well-established opinion. Interments, therefore, in cities 
and large populous towns, ought to be discountenanced, and no obstacles should 
be permitted to the establishment of cemeteries at suitable places in the vicinity. 

[226] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 204 



* Delegation of Municipal Powers. [* 204] 

Another and very important limitation which rests upon mu- 
nicipal powers is that they shall be executed by the municipality 

The by-law in question is therefore an unreasonable restraint upon many of the 
citizens of Boston, who are desirous of burying their dead without the city, and 
for that reason void. And this by-law would seem to be void for another reason. 
A by-law for the total restraint of one's right is void ; as if a man be barred of 
the use of his land. Com. Dig. By-Law, c. 4. The land where the bodies were 
interred was the land of the Catholic Bishop of Boston, purchased by him in 
1830, and then consecrated as a Catholic burying-ground, and has ever since 
been used as such, for the interment of Catholics dying in Charlestown and 
Boston. It is true the by-law does not operate to the total restraint or depriva- 
tion of the bishop's right, but it is a total restraint of the right of the burying 
the dead in Boston, for which a part of the burying-ground was appropriated. 
The illegality of the by-law is the same, whether it may deprive one of the use 
of a part or the whole of his property ; no one can be so deprived, unless the 
public good requires it. And the law will not allow the right of private property 
to be invaded under the guise of a police regulation for the preservation of 
health, when it is manifest that such is not the object and purpose of the regula- 
tion. Xow we think this is manifest from the case stated in regard to the by-law 
in question. It is a clear and direct infringement of the right of property, 
without any compensating advantages, and not a police regulation made in good 
faith for the preservation of health. It interdicts, or in its operation necessarily 
intercepts, the sacred use to which the Catholic burying-ground was appropriated 
and consecrated, according to the forms of the Catholic religion ; and such an 
interference, we are constrained to say, is wholly unauthorized and most unreason- 
able." Austin v. Murray, 16 Pick. 125. So in Wreford v. People, 14 Mich. 41, 
the common council of Detroit, under a power granted by statute to compel the 
owners and occupants of slaughter-houses to cleanse and abate them whenever 
necessary for the health of the inhabitants, assumed to pass an ordinance alto- 
gether prohibiting the slaughtering of animals within certain limits in the city ; 
and it was held void. See further State v. Jersey City, 5 Dutch. 170. Upon 
the whole subject of municipal by-laws, see Angell and Ames on Corp. c. 10; 
Grant on Corp. 76 et seq. See also Redfield on Railways (3d ed.), Vol. I. p. 88 ; 
Dillon, Mun. Corp. c. 12. The subject of the reasonableness of by-laws was 
considered at some length in People v. Medical Society of Erie, 24 Barb. 570, 
and Same v. Same, 32 N. Y. 187. In the first case it was held that a regulation 
subjecting a member of the County Medical Society to expulsion, for charging 
less than the established fees, was unreasonable and void. In the second, it was 
decided that where a party had the prescribed qualifications for admission to the 
society r , he could not be refused admission, on the ground of his having previous 
to that time failed to observe the code of medical ethics prescribed by the society 
for its members. Municipal by-laws may impose penalties on parties guilty of a 
violation thereof, but they cannot impose forfeiture of property or rights, with- 

[227] 



* 205 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

itself, or by such agencies or officers as the statute has pointed 
out. So far as its functions are legislative, they rest in the dis- 
cretion and judgment of the municipal body intrusted with them, 
and that body cannot refer the exercise of the power to the dis- 
cretion and judgment of its subordinates or of any other author- 
ity. So strictly is this rule applied, that when a city charter 
authorized the common council of the city to make by-laws and 
ordinances ordering and directing any of the streets to be pitched, 

levelled, paved, flagged, &c, or for the altering or repair- 
[* 205] ing the * same, " within such time and in such manner as 

they may prescribe under the superintendence and direc- 
tion of the city superintendent," and the common council passed 
an ordinance directing a certain street to be pitched, levelled, and 
flagged, " in such manner as the city superintendent, under the 
direction of the committee on roads of the common council, shall 
direct and require," the ordinance was held void, because it left 
to the city superintendent and the committee of the common coun- 
cil the decision which, under the law, must be made by the council 
itself. The trust was an important and delicate one, as the ex- 
penses of the improvement were, by the statute, to be paid by the 
owners of the property in front of which it was made. It was in 
effect a power of taxation ; and taxation is the exercise of sover- 
eign authority ; and nothing short of the most positive and explicit 
language could justify the court in holding that the legislature 
intended to confer such a power, or permit it to be conferred, on a 
city officer or committee. The statute in question not only con- 
tained no such language, but, on the contrary, clearly expressed 
the intention of confining the exercise of this power to the com- 
mon council, the members of which were elected by and respon- 
sible to those whose property they were thus allowed to tax. 1 

This restriction, it will be perceived, is the same which rests 
upon the legislative power of the State, and it springs from the 

out express legislative authority. State v. Ferguson, 33 N. H. 430 ; Phillips v. 
Allen, 41 Penn. St. 481. See also Kirk v. Nowell, 1 T. R. 124 ; White v. Tall- 
man, 2 Dutch. 67; Hart v. Albany, 9 Wend. 588; Peoria v. Calhoun, 29 111. 
317 ; St. Paul v. Coulter, 12 Minn. 41. 

1 Thompson v. Schermerhorn, 6 N. Y. 92. See also Smith v. Morse, 2 Cal. 
524 ; Oakland v. Carpentier, 13 Cal. 540 ; Whyte v. Nashville, 2 Swan, 3(34 ; 
East St. Louis v. Wehrung, 50 111. 28 ; Rogers v. Collier, 43 Mo. 359 ; State v. 
Jersey City, 1 Dutch. 309 ; Hydes v. Joyes, 4 Bush, 464 ; Lyon v. Jerome, 
26 Wend. 485 ; State v. Patterson, 34 N. J. 168; Dillon, Mun. Corp. § 60. 

[228] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 205 

same reasons. The people in the one case in creating the legis- 
lative department, and the legislature in the other in conferring 
the corporate powers, have selected the depository of the power 
which they have designed should be exercised, and in confiding it 
to such depository have impliedly prohibited its being exercised 
by any other agency. A trust created for any public purpose can- 
not be assignable at the will of the trustee. 1 

* Equally incumbent upon the State legislature and these [* 206] 
municipal bodies is the restriction that they shall adopt no 
irrepealable legislation. No legislative body can so part with its 
powers by any proceeding as not to be able to continue the exer- 
cise of them. It can and should exercise them again and again, 
as often as the public interests require. 2 Such a body has no 
power, even by contract, to control and embarrass its legislative 
powers and duties. On this ground it has been held, that a grant 

1 The charter of Washington gave the corporation authority " to authorize 
the drawing of lotteries, for effecting any important improvement in the city, 
which the ordinary funds or revenue thereof will not accomplish ; provided that 
the amount raised in each year shall not exceed ten thousand dollars. And 
provided also that the object for which the money is intended to be raised shall 
be first submitted to the President of the United States, and shall be approved 
by him." Per Marshall, Ch. J., speaking of this authority: "There is great 
weight in the argument that it is a trust, and an important trust, confided to 
the corporation itself, for the purpose of effecting important improvements in the 
city, and ought, therefore, to be executed under the immediate authority and 
inspection of the corporation. It is reasonable to suppose that Congress, when 
granting a power to authorize gaming, would feel some solicitude respecting the 
fairness with which the power should be used, and would take as many precau- 
tions against its abuse as was compatible with its beneficial exercise. Accordingly, 
we find a limitation upon the amount to be raised, and on the object for which 
the lottery may be authorized. It is to be for any important improvement in the 
city, which the ordinary funds or revenue thereof wilt not accomplish ; and it is 
subjected to the judgment of the President of the United States. The power 
thus cautiously granted is deposited with the corporation itself, without an indi- 
cation that it is assignable. It is to be exercised like other corporate powers, 
by the agents of the corporation under its control. While it remains where 
Congress has placed it, the character of the corporation affords some security 
against its abuse, — some security that no other mischief will result from it 
than is inseparable from the thing itself. But if the management, control, and 
responsibility may be transferred to any adventurer who will purchase, all the 
security for fairness which is furnished by character and responsibility is lost." 
Clark v. Washington, 12 Wheat. 54. 

2 East Hartford v. Hartford Bridge Co., 10 How. 535; Dillon, Mun. Corp. 
§ 61. 

[229] 



* 206 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

of land by a municipal corporation, for the purposes of a cemetery, 
with a covenant for quiet enjoyment by the grantee, could not 
preclude the corporation, in the exercise of its police powers, from 
prohibiting any further use of the land for cemetery purposes, 
when the advance of population threatened to make such use a 
public nuisance. 1 So when " a lot is granted as a place of deposit 
for gunpowder, or other purpose innocent in itself at the time ; 
it is devoted to that purpose till, in the progress of population, 
it becomes dangerous to the property, the safety, or the lives of 
hundreds ; it cannot be that the mere form of the grant, because 
the parties choose to make it particular instead of general and 
absolute, should prevent the use to which it is limited being re- 
garded and treated as a nuisance, when it becomes so in fact. 
In this way the legislative powers essential to the comfort and 

preservation of populous communities might be frittered 
~*207] away into* perfect insignificance. To allow rights thus 

to be parcelled out and secured beyond control would fix 
a principle by which our cities and villages might be broken up. 
Nuisances might and undoubtedly would be multiplied to an in- 
tolerable extent." 2 

And on the same ground it is held, that a municipal corporation, 
having power to establish, make, grade, and improve streets, does 
not, by once establishing the grade, preclude itself from changing 
it as the public needs or interest may seem to require, notwith- 
standing the incidental injury which must result to those individ- 
uals who have erected buildings with reference to the first grade. 3 

1 Brick Presbyterian Church v. City of New York, 5 Cow. 540 ; New York 
v. Second Avenue R.R. Co., 32 N. Y. 261. Compare KincaicTs Appeal, 66 Penn. 
St. 411 ; s. C. 5 Am. Rep. 377. 

2 Coats v. Mayor, &c, of New York, 7 Cow. 605. See also Davis v. Mayor, 
&c, of New York, 14 N. Y. 506; Attorney-General v. Mayor, &c, of New 
York, 3 Duer, 119; State v. Graves, 19 M<3. 51; Gozzle v. Georgetown, 6 
Wheat. 597 ; Louisville City R.R. Co. v. Louisville, 8 Bush, 415. 

3 Calendar v. Marsh, 1 Pick. 417; Griggs v. Foote, 4 Allen, 195; RadclifiVs 
Executors v. Brooklyn, 4 N. Y. 195 ; Graves v. Otis, 2 Hill, 466 ; O'Connor v. 
Pittsburg, 18 Penn. St. 187; Reading v. Keppleman, 61 Penn. St. 233; Shinner 
v. Hartford Bridge Co., 29 Conn. 523; Snyder v. Rockport, 6 Ind. 237; La 
Fayette v. Bush, 19 Ind. 326; La Fayette v. Fowler, 34 Ind. 140; Keal v. 
Keokuk, 4 Green (Iowa), 47 ; Cole v. Muscatine, 14 Iowa, 296 ; Russell v. Bur- 
lington, 30 Iowa, 262 ; Roberts v. Chicago, 26 111. 249 ; Murphy v. Chicago, 29 
111. 279 ; Rounds v. Mumford, 2 R. I. 154; Rome ». Omberg, 28 Geo. 46 ; Roll 
v. Augusta, 34 Geo. 326; Reynolds v. Shreveport, 13 La. An. 426; White v. 

[230] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 207 

So a corporation having power under the charter to establish and 
regulate streets cannot under this authority, without explicit legis- 
lative consent, permit individuals to lay down a railway in one of 
its streets, and confer privileges exclusive in their character and 
designed to be perpetual in duration. In a case where this was 
attempted, it has been said by the court : " The corporation has 
the exclusive right to control and regulate the use of the streets 
of the city. In this respect, it is endowed with legislative sover- 
eignty. The exercise of that sovereignty has no limit, so long as 
it is within the objects and trusts for which the power is conferred. 
An ordinance regulating a street is a legislative act, entirely be- 
yond the control of the judicial power of the State. But the 
resolution in question is not such an act. Though it relates to a 
street, and very materially affects the mode in which that street is 
to be used, yet in its essential features it is a contract. Privileges 
exclusive in their nature and designed to be perpetual in their 
duration are conferred. Instead of regulating the use of the 
street, the use itself to the extent specified in the resolution is 
granted to the associates. For what has been deemed an adequate 
consideration, the corporation has assumed to surrender a portion 
of their municipal authority, and has in legal effect agreed with 
the defendants that, so far as they may have occasion to use the 
street for the purpose of constructing and operating their 
railroad, the right to regulate * and control the use of that [* 208] 
street shall not be exercised. ... It cannot be that powers 
vested in the corporation as an important public trust can thus be 
frittered away, or parcelled out to individuals or joint-stock asso- 
ciations, and secured to them beyond control." 1 

Yazoo City, 27 Miss. 857; Humes v. Mayor, &c, 1 Humph. 403; St. Louis v. 
Gumo, 12 Mo. 414 ; Taylor v. St. Louis, 14 Mo. 20 ; Keasy v. Louisville, 4 
Dana, 154; Smith v. Washington, 20 How. 135. Compare Louisville v. Rolling 
Mill Co., 3 Bush, 416. The law would seem to be otherwise declared in Ohio. 
See Rhodes v. Cincinnati, 10 Ohio, 159 ; McCombs v. Akron, 15 Ohio, 474 ; 
s. c. 18 Ohio, 229 ; Crawford v. Delaware, 7 Ohio, N. s. 459. Compare Alex- 
ander v. Milwaukee, 16 Wis. 256. 

1 Milhau v. Sharp, 17 Barb. 435; s. c. 28 Barb. 228, and 27 KY. 611. 
See also Davis v. Mayor, &c, of New York, 14 N. Y. 506 ; State v. Mayor, &c. r 
3 Duer, 119 ; State v. Graves, 19 Md. 351. The consent of the legislature in 
any such case would relieve it of all difficulty, except so far as questions might 
arise concerning the right of individuals to compensation, as to which see post, 
c. 15. In Milhau v. Sharp, stqjra, it was also held that a corporation, with author- 
ity " from time to time to regulate the rates of fare to be charged for the 

[231] 



* 208 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

So it has been held, that the city of Philadelphia exercised a 
portion of the public right of eminent domain in respect to the 
streets within its limits, subject only to the higher control of the 
State and the use of the people ; and therefore a written license 
granted by the city, though upon a valuable consideration, author- 
izing the holder to connect his property with the city railway by 
a turnout and track, was not such a contract as would prevent 
the city from abandoning or removing the railway wherever, in 
the opinion of the city authorities, such action would tend to the 
benefit of its police. 1 

Thus hedged in by the limitations which control the legislative 
power of the State, these corporations are also entitled to the same 
protection which surrounds the exercise of State legislative power. 
One of these is, that no right of action shall arise in favor of an 
individual for incidental injury suffered by him in consequence of 
their adopting or failing to adopt legislative action. 2 Another is, 
that the same presumption that they have proceeded upon sufficient 
information and with correct motives shall support their legisla- 
tive action which supports the statutes of the State, and precludes 

judicial inquiry on these points. 3 These rules, however, 
[* 209] must be confined to those cases where the corporation * is 

exercising a discretionary power, and where the reasons 
which are to determine whether it shall act or not, and if it does, 
what the action shall be, are addressed to the municipal body 

carriage of persons," could not by resolution divest itself thereof as to the 
carriages employed on a street-railway. 

1 Bryson v. Philadelphia, 47 Penn. St. 329. Compare Louisville City R.R. 
Co. v. Louisville, 8 Bush, 415. 

2 Radcliffe's Ex'rs v. Mayor, &c, of Brookyn, 4 N. Y. 195; Duke v. Mayor, 
&c, of Rome, 20 Geo. 635; Larkin v. Saginaw County, 11 Mich. 88; St. Louis 
v. Gurno, 12 Mo. 414 ; Griffin v. Mayor, &c, of New York, 9 N. Y. 456 ; Ben- 
nett v. New Orleans, 14 La. An. 120; Weightman v. Washington, 1 Black, 39; 
Western College v. Cleveland, 12 Ohio, n. s. 375; Barton v. Syracuse, 37 Barb. 
292 ; Wheeler v. Cincinnati, 19 Ohio, N. s. 19 ; s. c. 2 Am. Rep. 368 ; Hewson 
v. New Haven, 37 Conn. 475; Murtagh v. St. Louis, 44 Mo. 480; Commission- 
ers v. Duckett, 20 Md. 468; Carr v. Northern Liberties, 35 Penn. St. 324; 
Grant v. Erie, 69 Penn. St. 420; s. c. 8 Am. Rep. 272; Sparhawk v. Salem, 1 
Allen, 30; Randall v. Eastern R. Corp., 106 Mass. 276; s. c. 8 Am. Rep. 326; 
Hughes v. Baltimore, Taney, 243. 

3 Milhau v. Sharp, 15 Barb. 193 ; New York and Harlaem Railroad Co. v. 
Mayor, &c, of New York, 1 Hilton, 562; Buell v. Ball, 20 Iowa, 282; Freeport 
v. Marks, 59 Penn. St. 253. Compare State v. Cincinnati Gas Co., 18 Ohio, 
N. s. 262. 

[ 232 ] 



CH. VIII.] THE GRADES OP MUNICIPAL GOVERNMENT. * 209 

exclusively. If the corporation is in the position of trustee of 
property for other persons, it is subject to the same supervision 
and control with other trustees, and where a specific act is required 
by law to be done, exact performance may be compelled as in 
other cases. 

Among the implied powers of such an organization appears to 
be the power to defend and indemnify its officers where they have 
incurred liability in the bona fide discharge of their duty. It has 
been decided in a case where irregularities had occurred in the 
assessment of a tax, in consequence of which the tax was void, 
and the assessors had refunded to the persons taxed the moneys 
which had been collected and paid into the town, county, and 
State treasuries, that the town had authority to vote to raise a sum 
of money in order to refund to the assessors what had been so 
paid by them, and that such vote was a legal promise to pay, on 
which the assessors might maintain action against the town. " The 
general purpose of this vote," it was said, " was just and wise. 
The inhabitants, finding that three of their townsmen, who had 
been elected by themselves to an office, which they could not, with- 
out incurring a penalty, refuse to accept, had innocently and inad- 
vertently committed an error which, in strictness of law, annulled 
their proceedings, and exposed them to a loss perhaps to the whole 
extent of their property, if all the inhabitants individually should 
avail themselves of their strict legal rights, — finding also that the 
treasury of the town had been supplied by the very money which 
these unfortunate individuals were obliged to refund from their 
own estates, and that, so far as the town tax went, the very per- 
sons who had rigorously exacted it from the assessors, or who were 
about to do it, had themselves shared in due proportion the benefits 
and use of the money which had been paid into the treasury, in 
the shape of schools, highways, and various other objects which 
the necessities of a municipal institution call for, — concluded to 
reassess the tax, and to provide for its assessment in a manner 
which would have produced perfect justice to every individual of 
the corporation, and would have protected the assessors from the 
effects of their inadvertence in the assessment which was found to 
be invalid. The inhabitants of the town had a perfect right to 
make this reassessment, if they had a right to raise the money 
originally. The necessary supplies to the treasury of a town can- 
not be intercepted, because of an inequality in the mode of appor- 

[233] 



* 209 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

tioning the sum upon the individuals. Debts must be 
[* 210] incurred, duties must be performed, by every town ; * the 

safety of each individual depends upon the execution of 
the corporate duties and trusts. There is and must be an inherent 
power in every town to bring the money necessary for the purposes 
of its creation into the treasury ; and if its course is obstructed 
by the ignorance or mistakes of its agents, they may proceed to 
enforce the end and object by correcting the means ; and whether 
this be done by resorting to their original power of voting to raise 
money a second time for the same purposes, or by directing to re- 
assess the sum before raised by vote, is immaterial ; perhaps the 
latter mode is best, at least it is equally good." : 

It has also been held competent for a town to appropriate money 
to indemnify the school committee for expenses incurred in defend- 
ing an action for an alleged libel contained in a report made by 
them in good faith, and in which action judgment had been ren- 
dered in their favor. 2 And although it should appear that the 
officer had exceeded his legal right and authority, yet if he has 
acted in good faith in an attempt to perform his duty, the town has 

the right to adopt his act and to bind itself to indemnify 
[* 211] him. 3 *And perhaps the legislature may even have power 

to compel the town, in such a case, to reimburse its officers 

1 Per Parker, Ch. J., in Nelson v. Milford, 7 Pick. 23. See also Baker v. 
Windham, 13 Me. 74; Fuller v. Groton, 11 Gray, 340. 

A municipal corporation, it is said, may offer rewards for tbe detection of 
offenders within its limits, but its promise to reward an officer for that which, 
without such reward, it was his duty to do, is void. Dillon, Mun. Corp. § 91, and 
cases cited. And see note, p. 212, supra. 

8 Fuller v. Inhabitants of Groton, 11 Gray, 340. See also Hadsell v. Inhab- 
itants of Hancock, 3 Gray, 526 ; Pike v. Middleton, 12 N. H. 278. 

3 A surveyor of highways cut a drain for the purpose of raising a legal ques- 
tion as to the bounds of the highway, and the town appointed a committee to 
defend an action brought against the surveyor therefor, and voted to defray the 
expenses incurred by the committee. By the court: " It is the duty of a town 
to repair all highways within its bounds, at the expense of the inhabitants, so that 
the same may be safe and convenient for travellers ; and we think it has the 
power, as incident to this duty, to indemnify the surveyor or other agent against 
any charge or liability he may incur in the bona Jide discharge of this duty, 
although it may turn out on investigation that he mistook his legal rights and 
authority. The act by which the surveyor incurred a liability was the digging a 
ditch, as a drain for the security of the highway ; and if it was done for the pur- 
pose of raising a legal question as to the bounds of the highway, as the defend- 
ants offered to prove at the trial, the town had, nevertheless, a right to adopt 

[234] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 211 

the expenses incurred by them in the honest but mistaken dis- 
charge of what they believed to be their duty, notwithstanding the 
town, by vote, has refused to do so. 1 



Construction of Municipal Poivers. 

The powers conferred upon municipalities must be construed 
with reference to the object of their creation, namely, as agencies 
of the State in local government. 2 The State can create them for 

the act, for they were interested in the subject, being bound to keep the highway 
in repair. They had, therefore, a right to determine whether they would defend 
the surveyor or not ; and having determined the question, and appointed the 
plaintiffs a committee to carry on the defence, they cannot now be allowed to 
deny their liability, after the committee have paid the charges incurred under 
the authority of the town. The town had a right to act on the subject-matter 
which was within their jurisdiction ; and their votes are binding and create a 
legal obligation, although they were under no previous obligation to indemnify the 
surveyor. That towns have an authority to defend and indemnify their agents 
who may incur a liability by an inadvertent error, or in the performance of their 
duties imposed on them by law, is fully maintained by the case of Nelson v. 
Milford, 7 Pick. 18." Bancroft v. Lynnfield, 18 Pick. 568. And see Briggs v. 
Whipple, 6 Vt. 95. 

1 Guilford v. Supervisors of Chenango, 13 N. Y. 143. See this case com- 
mented upon by Lyon, J., in State v. Tappen, 29 Wis. 674, 680. On the page 
last mentioned it is said, " We have seen no case except in the courts of New 
York, which holds that such moral obligation gives the legislature power to com- 
pel payment." Where officers make themselves liable to penalties for refusal 
to perform duty, the corporation has no authority to indemnify them. Halstead 
v. Mayor, &c, of New York, 3 N. Y. 430; Merrill v. Plainfield, 45 N. H. 126. 
See Frost v. Belmont, 6 Allen, 152 ; People v. Lawrence, 6 Hill, 244 ; Vincent 
v. Nantucket, 12 Cush. 105. 

2 A somewhat peculiar question was involved in the case of Jones v. Rich- 
mond, 18 Grat. 517. In anticipation of the evacuation of the city of Richmond 
by the Confederate authorities, and under the apprehension that scenes of disorder 
might follow, which would be aggravated by the opportunity to obtain intoxicating 
liquors, the common council ordered the seizure and destruction of all such liquors 
within the city, and pledged the faith of the city to the payment of the value. 
The Court of Appeals of Virginia afterwards decided that the city might be held 
liable on the pledge in an action of assumpsit. Hives, J., says: "By its char- 
ter the council is specially empowered to ' pass all by-laws, rules, and regula- 
tions which they shall deem necessary for the peace, comfort, convenience, good 
order, good morals, health, or safety of said city, or of the people or property 
therein.' It is hard to conceive of larger terms for the grant of sovereign leg- 
islative powers to the specified end than those thus employed in the charter ; and 
they must be taken by necessary and unavoidable intendment to comprise the 

[235] 



* 211 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

no other purpose, and it can confer powers of government to no 
other end, without at once coming in conflict with the constitu- 
tional maxim, that legislative power cannot be delegated, or with 
other maxims designed to confine all the agencies of government to 
the exercise of their proper functions. And wherever the munici- 
pality shall attempt to exercise powers not within the proper province 
of local self-government, whether the right to do so be claimed under 
express legislative grant, or by implication from the charter, the act 
must be considered as altogether ultra vires, and therefore void. 

A reference to a few of the adjudged cases will perhaps best 
illustrate this principle. The common council of the city of 
Buffalo undertook to provide an entertainment and ball for its 
citizens and certain expected guests on the 4th of July, and for 
that purpose entered into contract with a hotel keeper to provide 
the entertainment at his house, at the expense of the city. The 
entertainment was furnished and in part paid for, and suit was 
brought to recover the balance due. The city had authority, under 
its charter, to raise and expend moneys for various specified pur- 
poses, and also " to defray the contingent and other expenses of 
the city." But providing an entertainment for its citizens is no 

part of municipal self-government, and it has never been 
[* 212] considered, * where the common law has prevailed, that 

the power to do so pertained to the government in any of 
its departments. The contract was therefore held void, as not 
within the province of the city government. 1 

powers of eminent domain within these limits of prescribed jurisdiction. There 
were two modes open to the council : first, to direct the destruction of these 
stores, leaving the question of the city's liability therefor to be afterwards liti- 
gated and determined ; or, secondly, assuming their liability, to contract for the 
values destroyed under their orders. Had they pursued the first mode, the cor- 
poration would have been liable in an action of trespass for the damages ; but they 
thought proper to adopt the latter mode, make it a matter of contract, and 
approach their citizens, not as trespassers, but with the amicable proffer of a 
formal receipt and the plighted faith of the city for the payment. In this they 
seem to me to be well justified.'" Judge Dillon doubts the soundness of this 
decision. Dillon, Mun. Corp. § 371, note. The case seems to us analogous 
in principle to that of the destruction of buildings to stop the progress of a fire. 
In each case private property is destroyed to anticipate and prevent an impend- 
ing public calamity. 

1 Hodges v. Buffalo, 2 Denio, 110. See also the case of New London v. 
Brainard, 22 Conn. 552, which follows and approves this case. The cases differ 
in this onlv, that in the first suit was brought to enforce the illegal contract, 

[236] 



CH. Till.] THE GRADES OP MUNICIPAL GOVERNMENT. 



212 



The supervisors of the city of New York refused to perform a 
duty imposed upon them by law, and were prosecuted severally 
for the penalty which the law imposed for such refusal, and judg- 
ment recovered. The board of supervisors then assumed, on 
behalf of the city and county, the payment of these judgments, 
together with the costs of defending the suits, and caused drafts 
to be drawn upon the treasurer of the city for these amounts. 
It was held, that these drafts upon the public treasury to indem- 
nify officers for disregard of duty were altogether unwarranted 
and void, and that it made no difference that the officers had 
acted conscientiously in refusing to perform their duty, and in 
the honest belief that the law imposing the duty was unconstitu- 
tional. The city had no interest in the suits against the super- 
visors, and appropriating the public funds to satisfy the judgments 
and costs was not within either the express or implied powers 
conferred upon the board. 1 It was in fact appropriating the pub- 
lic money for private purposes, and a tax levied therefor must 
consequently be invalid, on general principles controlling the right 
of taxation, which will be considered in another place. In a recent 
case in Iowa it is said : " No instance occurs to us in which it 
would be competent for [a municipal corporation] to loan its 
credit or make its accommodation paper for the benefit of citizens 
to enable them to execute private enterprises;" 2 and where it 

. - 

.jfhile in the second the city was enjoined from paying over moneys which it had 
appropriated for the purposes of the celebration. The cases of Tash v. Adams, 
^lO Cush. 252, and Hood v. Lynn, 1 Allen, 103, are to the same effect. A town, 
it has been held, cannot lawfully be assessed to pay a reward offered by a vote 
of the town for the apprehension and conviction of a person supposed to have 
committed murder therein. Gale v. South Berwick, 51 Me. 174. Nor under its 
general authority to raise money for " necessary town charges," is a town author- 
ized to raise and expend moneys to send lobbyists to the legislature. Frankfort 
v. Winterport, 54 Me. 250. Or, under like authority, to furnish a uniform for a 
volunteer military company. Clanin v. Hopkinton, 4 Gray, 502. Where a 
municipal corporation enters into a contract ultra vires, no implied contract 
arises to compensate the contractor for any thing he may have done under it, 
notwithstanding the corporation may have reaped a benefit therefrom. McSpedon 
v. New York, 7 Bosw. 601 ; Zottman v. San Francisco, 20 Cal. 96. 

1 Halstead v. Mayor, &c, of New York, 3 N. Y. 430. See a similar case in 
People v. Lawrence, 6 Hill, 244. Se§ also Carroll v. St. Louis, 12 Mo. 444 ; 
Vincent v. Nantucket, 12 Cush. 103; Parsons v. Goshen, 11 Pick. 396; Merrill 
v. Plainfield, 45 N. H. 126. 

2 Clark v. Des Moines, 19 Iowa, 224. See Tyson v. School Directors, 51 

[237] 



* 212 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

cannot loan its credit to private undertakings, it is equally 
[* 213] without * power to appropriate the moneys in its treasury, 
or by the conduct of its officers to subject itself to implied 
obligations. 1 

The powers 'conferred upon the municipal governments must 
also be construed as confined in their exercise to the territorial 
limits embraced within the municipality ; and the fact that these 
powers are conferred in general terms will not warrant their exer- 
cise except within those limits. A general power " to purchase, 
hold, and convey estate, real and personal, for the public use " of 
the corporation, will not authorize a purchase outside the corpo- 
rate limits for that purpose. 2 Without some special provision they 
cannot, as of course, possess any control or rights over lands lying 
outside ; 3 and the taxes they levy of their own authority, and the 
moneys they expend, must be for local purposes only. 4 

But the question is a very different one how far the legislature 
of the State may authorize the corporation to extend its action to 

Penn. St. 9; Freeland v. Hastings, 10 Allen, 570; Thompson v. Pittston, 59 
Me. 545; Kelly v. Marshall, 69 Penn. St. 319; Allen v. Jay, Supreme Court of 
Maine, Law Reg., Aug. 1873, with note by Judge Redfield. 

1 " In determining whether the subject-matter is within the legitimate authority 
of the town, one of the tests is to ascertain whether the expenses were incurred 
in relation to a subject specially placed by law in other hands. ... It is a 
decisive test against the validity of all grants of money by towns for objects 
liable to that objection, but it does not settle questions arising upon expenditures 
for objects not specially provided for. In such cases the question will still recur, 
whether the expenditure was within the jurisdiction of the town. It may be 
safely assumed that, if the subject of the expenditure be in furtherance of some 
duty enjoined by statute, or in exoneration of the citizens of the town from a 
liability to a common burden, a contract made in reference to it will be valid and 
binding upon the town." Allen v. Taunton, 19 Pick. 487. See Tucker v. Vir- 
ginia City, 4 Nev. 20. It is no objection to the validity of an act which author- 
izes an expenditure for a town-hall, that rooms to be rented for stores are 
contained in it. White v. Stamford, 37 Conn. 578. 

2 Riley v. Rochester, 9 N. Y. 64. 

3 Per Kent, Chancellor, Denton v. Jackson, 2 Johns. Ch. 336. And see 
Bullock v. Curry, 2 Met. (Ky.) 171; Weaver v. Cherry, 8 Ohio, N. s. 564; 
North Hempstead v. Hempstead, Hopk. 294; Concord v. Boscawen, 17 N. H. 
465. 

4 In Parsons v. Goshen, 11 Pick. 896, the action of a town appropriating 
money in aid of the construction of a county road, was held void and no protec- 
tion to the officers who had expended it. See also Concord v. Boscawen, 17 
N. H. 465. 

[ 238] 



CH. VIII.] THE GEADES OF MUNICIPAL GOVERNMENT. * 21 j 

objects outside the city limits, and to engage in enterprises of a 
public nature which may be expected to benefit the citizens of the 
municipality in common with the people of the State at large, and 
also in some special and peculiar manner, but which nevertheless 
'are not under the control of the corporation, and are so far aside 
from the ordinary purposes of local governments that assistance by 
the municipality in such enterprises would not be warranted under 
any general grant of power for municipal government. For a few 
years past the sessions of the legislative bodies of the 
several States have been prolific in * legislation which has [* 214] 
resulted in flooding the country with municipal securities 
issued in aid of works of public improvement, to be owned, con- 
trolled, and operated by private parties, or by corporations created 
for the purpose ; the works themselves being designed for the con- 
venience of the people of the State at large, but being nevertheless 
supposed to be specially beneficial to certain localities because 
running near or through them, and therefore justifying, it is sup- 
posed, the imposition of a special burden by taxation upon such 
localities to aid in their construction. 1 We have elsewhere 2 referred 
to cases in which it has been held that the legislature may consti- 
tutionally authorize cities, townships, and counties to subscribe to 
the stock of railroad companies, or to loan them their credit, and 
to tax their citizens to pay these subscriptions, or the bonds or other 
securities issued as loans, where a peculiar benefit to the munici- 
pality was anticipated from the improvement. The rulings in 
these cases, if sound, must rest upon the same right which allows 
such- municipalities to impose burdens upon their citizens to con- 
struct local streets or roads, and they can only be defended on the 
ground that " the object to be accomplished is so obviously con- 
nected with the [municipality] and its interests as to conduce 
obviously and in a special manner to their prosperity and advance- 
ment." 3 But there are authorities which dispute their soundness, 

1 In Merrick v. Inhabitants of Amherst, 12 Allen, 500, it was held competent 
for the legislature to authorize a town to raise money by taxation for a State 
agricultural college, to be located therein. The case, however, we think, stands 
on different reasons from those where aid has been voted by municipalities to 
public improvements. See it explained in Jenkins v. Andover, 103 Mass. 94. 
And see Marks v. Trustees of Pardue University, 37 Ind. 155. 

4 Ante, p. 119. 

3 Talbot U. Dent, 9 B. Monr. 526. See Hasbrouck v. Milwaukee, 13 Wis. 44. 

[239] 



* 214 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

and it cannot be denied that this species of legislation has been 
exceedingly mischievous in its results, that it has created a great 

It seems not inappropriate to remark in this place that the three authors who 
have treated so ably of municipal constitutional law (Mr. Sedgwick, Stat. & 
Const. Law, 464), of railway law (Judge Redfield), and of municipal corpora- 
tions (Judge Dillon) have all united in condemning this legislation as unsound 
and unwarranted by the principles of constitutional law. See the views of the 
two writers last named in note to the case of People v. Township Board of Salem, 
9 Am. Law Reg. 487. And Judge Dillon well remai-ks in his Treatise on Mu- 
nicipal Corporations (§ 104) that, " regarded in the light of its effects, there 
is little hesitation in affirming that this invention to aid private enterprises has 
proved itself baneful in the last degree." 

If we trace the beginning of this legislation, we shall find it originating at a 
time when there had been little occasion to consider with care the limitations to 
the functions of municipal government, because as yet those functions had been 
employed with general caution and prudence, and no disposition had been mani- 
fested to stretch their powers to make them embrace matters not usually recog- 
nized as properly and legitimately falling within them, or to make use of the 
municipal machinery to further private ends. Nor did the earliest decisions 
attract much attention, for they referred to matters somewhat local, and the spirit 
of speculation was not as yet rife. When the construction of railways and canals 
was first entered upon by an expenditure of public funds to any considerable 
extent, the States themselves took them in charge, and for a time appropriated 
large sums and incurred immense debts in enterprises, some of which were of 
high importance and others of little value, the cost and management of which 
threatened them at length with financial disaster, bankruptcy, and possible repu- 
diation. No long experience was required to demonstrate that railways and 
canals could not be profitably, prudently, or safely managed by the shifting 
administrations of State government ; and many of the States not only made pro- 
vision for disposing of their interest in works of public improvement, but, in view 
of a bitter experience of the evils already developed in undertaking to construct 
and control them, they amended their constitutions so as to prohibit the State, 
when again the fever of speculation should prevail, from engaging anew in such 
undertakings. 

All experience shows, however, that men are abundant who do not scruple to 
evade a constitutional provision which they find opposed to their desires, if they can 
possibly assign a plausible reason for doing so ; and in the case of the provisions 
before referred to, it was not long before persons began to question their phra- 
seology very closely, not that they might arrive at the actual purpose, — which 
indeed was obvious enough, — but to discover whether that purpose might not be 
defeated without a violation of the express terms. The purpose clearly was to 
remand all such undertakings to private enterprise, and to protect the citizens of 
the State from being taxed to aid them ; but while the State was forbidden to 
engage in such works, it was unfortunately not expressly declared that the sev- 
eral members of the State, in their corporate capacity, were also forbidden to do 
so. The conclusion sought and reached was that the agencies of the State were 

[240] 



CH. VIII.] THE GRADES OP MUNICIPAL GOVERNMENT. * 214 

burden of public debt for which in a large number of cases the 
anticipated benefit was never received, and that, as is likely to be 

at liberty to do what was forbidden to the State itself, and the burden of debt 
which the State might not directly impose upon its citizens, it might indirectly 
place upon their shoulders by the aid of municipal action. 

The legislation adopted under this construction some of the courts felt com- 
pelled to sustain, upon the accepted principle of constitutional law that no legis- 
lative authority is forbidden to the legislature unless forbidden in terms ; and the 
voting of municipal aid to railroads became almost a matter of course wherever a 
plausible scheme could be presented by interested parties to invite it. In some 
localities, it is true, vigorous protest was made ; but as the handling of a laro-e 
amount of public money was usually expected to make the fortune of the projectors, 
whether the enterprise proved successful or not, means either fair or unfair were 
generally found to overcome all opposition. Towns sometimes voted large sums 
to railroads on the ground of local benefit where the actual and inevitable result 
was local injury, and the projectors of one scheme succeeded in obtaining and 
negotiating the bonds of one municipality to the amount of a quarter of a million 
dollars, which are now being enforced, though the work they were to aid was never 
seriously begun. A very large percentage of all the aid voted was sacrificed in 
discounts to purchasers of bonds, expended in worthless undertakings, or otherwise 
lost to the tax payers ; and the cases might almost be said to be exceptional in which 
municipalities, when afterwards they were called upon to meet their obligations, 
could do so with a feeling of having received the expected consideration. Some 
State and territorial governors did noble work in endeavoring to stay this reckless 
legislative and municipal action, and some of the States at length rendered such 
action impossible by constitutional provisions so plain and positive that the most 
ingenious mind was unable to misunderstand or pervert them. 

When the United States entered upon a scheme of internal improvement, the 
Cumberland road was the first important project for which its revenues were 
demanded. The promises of this enterprise were of continental magnificence 
and importance, but they ended after heavy national expenditures in a road no 
more national than a thousand others which the road-masters in the several 
States have constructed with the local taxes; and it was* finally abandoned to the 
States as a common highway. When next a great national scheme was broached, 
the aid of the general government was demanded by way of subsidies to private 
corporations, who presented schemes of works of great public convenience and 
utility, which were to open up the new territories to improvement and settlement 
sooner than the business of the country would be likely to induce unaided private 
capital to do it, and which consequently appealed to the imagination rather than 
to facts to demonstrate their importance, and afforded abundant opportunity for 
scheming operators to call to their assistance the national sentiment, then 
peculiarly strong and active by reason of the attempt recently made to overthrow 
the government, in favor of projects whose national, importance in many cases 
the imagination alone could discover. The general result was the giving away of 
immense bodies of land, and in some cases the granting of pecuniary aid, with 
a recklessness'and often with an appearance of corruption that at length startled 

16 [ 241 ] 



* 214 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

the case where municipal governments take part in projects foreign 
to the purposes of their creation, it has furnished unusual facil- 

the peeple, and aroused a public spirit before which the active spirits in Congress 
who had promoted these grants, and sometimes even demanded them in the name 
of the poor settler in the wilderness who was unable to get his crops to market, 
were compelled to give way. The scandalous frauds connected with the Pacific 
Railway, which disgraced the nation in the face of the world, and the great and 
disastrous financial panic of 1873, were legitimate results of such subsidies ; but 
the pioneer in the wilderness had long before discovered that land grants were 
not always sought or taken with a view to an immediate appropriation to the 
roads for the construction of which tbey were nominally made, but that the result 
in many cases was, that large tracts were thereby kept out of market and from 
taxation which otherwise would have been purchased and occupied by settlers who 
would have lessened his taxes by contributing their share to the public burdens. 
The grants, therefore, in such cases, instead of being at once devoted to improve- 
ments for the benefit of settlers, were in fact kept in a state of nature by the 
speculators who had secured them, until the improvements of settlers in their 
vicinity could make the grantees wealthy by the increase in value such improve- 
ments gave to the land near them. In saying this the admission is freely made 
that in many cases the grants were promptly and honestly appropriated in accord- 
ance with their nominal purpose ; but the general verdict now is that the system 
was necessarily corruptive and tended to invite fraud, and that some persons of 
influence managed to accumulate great wealth by grants indirectly secured to 
themselves under the unfounded pretence of a desire to aid and encourage the 
pioneers in the wilderness. 

Some States also have recently in their corporate capacity again engaged in 
issuing bonds to subsidize private corporations, with the natural result of serious 
State scandals, State insolvency, public discontent, and in some cases it would 
seem almost inevitable repudiation. Their governments, amid the disorders of 
the times, have fallen into the hands of strangers and novices, and the hobby of 
public improvement has been ridden furiously to gratify the greed of individuals. 
It has often been well remarked that the abuse of a power furnishes no argu- 
ment against its existence ; but a system so open to abuses may well challenge 
attention to its foundations. And when those foundations are examined, it is 
denied that they have any sound support in the municipal constitutional law of 
this country. The same reasons which justify subsidies to the business of com- 
mon carriers by railway will support taxation in aid of any private business 
whatsoever. 

It is sometimes loosely said that railway companies are public corporations, 
but the law does not so regard them. It is the settled doctrine of the law that, 
like banks, mining companies, and manufacturing companies, they are mere pri- 
vate corporations, supposed to be organized for the benefit of the individual 
corporators, and subject to no other public supervision or control than any other 
private association for business purposes to which corporate powers have been 
granted. Dartmouth College v. Woodward, 4 Wheat. 668; Buonaparte v. 
Camden and Amboy R.R. Co., Baldw. 205; Eustis v. Parker, 1 N. H. 237; 

[242] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 214 

ities for fraud and public plunder, and led almost inevitably, at 
last, to discontent ; sometimes even to disorder and violence. 

Ohio, &c, R.R. Co. v. Ridge, 5 Blackf. 78; Roanoke, &c, R.R. Co. ». Davis, 
2 Dev. & Bat. 451; Dearborn v. Boston & M. R.R. Co., 4 Fost, 179; Trus- 
tees, &c, v. Auborn, &c, R.R. Co., 3 Hill, 570; Tinsman v. Belvidere, &c., 
R.R. Co., 2 Dutch. 148; Thorpe v. Rutland, &c., R.R. Co., 27 Vt. 155; Ala- 
bama R.R. Co. v. Kidd, 29 Ala. 221 ; Turnpike Co. v. Wallace, 8 Watts, 316 ; 
Seymour v. Turnpike Co., 10 Ohio, 476 ; Ten Eyck v. D. & R. Canal, 3 Harr. 
200; A. & A. on Corp., § 30-36; Redf. on Railw. c. 3, § 1 ; Pierce on Rail- 
roads, 19, 20. Taxation to subsidize them cannot therefore be justified on the 
ground of any public character they possess, any more than to subsidize banks or 
mining companies. It is truly said that it has long been the settled doctrine that 
the right of eminent domain may be employed in their behalf, and it has some- 
times been insisted with much earnestness that wherever the State may aid an 
enterpi'ise under the right of eminent domain, it may assist it by taxation also. 
But the right of taxation and the right of eminent domain are by no means coex- 
tensive, and do not rest wholly upon like reasons. The former compels the citizen 
to contribute his proportion of the public burden ; the latter compels him to part 
with nothing for which he is not to receive pecuniary compensation. The tax in 
the one case is an exaction, the appropriation in the other is only a forced sale. 
To take money for private purposes under pretence of taxation is, as has been 
often said, but robbery and plunder ; to appropriate under the right of eminent 
domain for a private corporation robs no one, because the corporation pays for 
what is taken, and in some cases, important to the welfare and prosperity of the 
community, and where a public convenience is to be provided, — as in the case of 
a grist mill, — it has long been' held competent to exercise the one power, while 
the other was conceded to be inadmissible. Few persons would attempt to justify 
a tax in aid of a mill-owner, on the ground that laws appropriating lands for his 
benefit, but at his expense, have been supported. 

The truth is, the right to tax in favor of private corporations of any descrip- 
tion must rest upon the broad ground that the power of the legislature, subject 
only to the express restrictions of the constitution, is supreme, and that, in the 
language of some of the cases, " if there be the least possibility that makinc 
the gift will be promotive in any degree of the public welfare, it becomes a 
question of policy, and not of natural justice, and the determination of the 
legislature is conclusive." (Post, p. 489.) But nothing is better settled on 
authority than that this strong language, though entirely true when it refers to 
the making provision for those things which it falls within the province of govern- 
ment to provide for its citizens, or to the payment of services performed for the 
State, or the satisfaction of legal, equitable, or moral obligations resting upon 
it, is wholly inadmissible when the purpose is to impose a burden upon one man 
for the benefit of another. Many such cases might be suggested in which there 
would not only be a "possibility," but even a strong probability, that a small 
burden imposed upon the public to set an individual up in business, or to build 
him a house, or otherwise make him comfortable, would be promotive of the 
public welfare ; but in law the purpose of any such burden is deemed private 

[243] 



* 215 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

[* 215] * Assuming that any such subscriptions or securities 
may be authorized, the first requisite to their validity 

and the incidental benefit to the public is not recognized as an admissible basis 
of taxation. 

In Allen v. Inhabitants of Jay, 60 Me., it became necessary to reaffirm a doc- 
trine, often declared by the courts, that however great was the power to tax, it was 
exceeded, and the legislature was attempting the exercise of a power not legislative 
in its character, when it undertook to impose a burden on the public for a private 
purpose. And it was also held that the raising of money by tax in order to loan 
the same to private parties to enable them to erect mills and manufactories in 
such town, was raising it for a private purpose, and therefore illegal. Appleton, 
Ch. J., most truly remarks in that case, that "all security of private rights, 
all protection of private property, is at an end, when one is compelled to raise 
money to loan at the will of others for their own use and benefit, when the power 
is given to a majority to lend or give away the property of an unwilling minority." 
And yet how plain it is that the benefit of the local public might possibly have 
been promoted by the proposed erections ! This case was decided near the same 
time with one in the United States Circuit Court of Kansas, in which Dillon, 
Circuit J., held a law authorizing the town of Iola to issue its bonds in aid of a 
manufactory proposed to be established in its midst was void, as an attempt to 
exercise the taxing power for private purposes. 

These cases are not singular : they are representative cases ; and they are 
cited only because they are among the most recent expressions of judicial opin- 
ion on the subject. With them may be placed Lowell v. Boston, also a very 
recent case not yet reported, in which the Supreme Court of Massachusetts, 
after the great fire of 1872 in Boston, denied the power of the Commonwealth 
to permit taxation in order to loan the moneys out to the persons who had suf- 
fered by the fire. These three decisions of eminent tribunals indicate a limit to 
legislative power in the matter of taxation, and hold, what has been decided very 
many times before, that it is not necessary the constitution should forbid expressly 
the taxing for private purposes, since it is implied in the very idea of taxation 
that the purpose must be public, and a taking for any other purpose is unlawful 
confiscation. 

One difference there undoubtedly is between the case of a railroad corpora- 
tion and a manufacturing corporation ; that there are precedents in favor of tax- 
ing for the one and not for the other. But what we insist is, that the precedents 
are a departure from sound principle, and that, as in every other case where 
principle is departed from, evils have resulted. A catalogue of these would 
include the squandering of the public domain ; the enrichment of schemers 
whose policy it has been, first to obtain all they can by fair promises, and then 
avoid as far and as long as possible the fulfilment of the promises ; the cor- 
ruption of legislation ; the loss of State credit ; great public debts recklessly 
contracted for moneys often recklessly expended ; public discontent because the 
enterprises fostered from the public treasury and on the pretence of public ben- 
efit are not believed to be managed in the public interest ; and, finally, great 
financial panic, collapse, and disaster. At such a cost has the strong expression 

[244] 



CH. VIII.] THE GRADES OP MUNICIPAL GOVERNMENT. * 215 

would seem, then, to be a special legislative authority to make or 
issue them ; an authority which does not reside in the general 
words in which the powers of local self-government are usually 
conferred, 1 and one also which must be carefully followed by the 

of dissent which all the while has accompanied these precedents been disregarded 
and set aside. 

Some most remarkable illustrations may be found in our legislative history of 
the devices and shifts that will be resorted to for the plunder of the public when 
the doctrine is once submitted to, that private corporations may be subsidized 
from the public treasury. In this place we content ourselves with mentioning 
one. The people of Illinois by constitutional provision have expressly forbidden 
such subsidies. Unfortunately for the State, a number of towns and counties had 
previously voted considerable sums to railroad companies, which still remain 
unpaid. Some of these constituted such burdens upon the municipalities voting 
them that the local authorities did not venture to impose the necessary taxes to 
pay the interest, much less to provide for the principal. What should be done 
under such circumstances ? The holders of the debts wanted their pay : the munic- 
ipalities wanted to get rid of their obligations. It would seem that nothing was 
to be done but for the one party to pay or the other to resort to the proper 
legal remedy. With millions at stake, however, ingenious men were not want- 
ing who could suggest some other plan, and the one suggested was, that these 
local obligations should be saddled upon the State. It seems incredible, but it 
is nevertheless true, that such influences were brought to bear as secured legisla- 
tion which, covertly and by indirection, imposed upon the State the burden. So 
gross and palpable a disregard of the constitutional principle which requires tax- 
ation to be gathered from those upon whom the burden justly rests (post, p. 493—1) 
is not often known. 

As denying the right to tax in aid of railroad corporations, reference is made 
to Stokes v. Scott County, 10 Iowa, 166 ; State v. Wapello County, 13 Iowa, 
388; Myers v. Johnson County, 14 Iowa, 47 ; Smith v. Henry County, 15 Iowa, 
386 ; Ten Eyck v. Keokuk, ib. 486 ; Clark v. Des Moines, 19 Iowa, 212 ; McClure 
v. Owen, 26 Iowa, 243 ; Hanson v. Vernon, 27 Iowa, 28 ; People v. Township 
Board of Salem, 21 Mich. 11; Bay City v. State Treasurer, 23 Mich. 499; 
Whiting v. Sheboygan R.R. Co., 25 Wis. 167 ; Phillips v. Albany, 28 Wis. 357 ; 
and to dissenting opinions in many of the cases where a majority of the Court 
sustained the right, Compare also what is said by Church, Ch. J., in People v. 
Flagg, 46 N. Y. 401. 

1 Bullock v. Curry, 2 Met. (Ky.) 171. A general power to borrow money 
or incur indebtedness to aid in the construction of" any road or bridge" must 
be understood to have reference only to the roads or bridges within the munici- 
pality. Stokes v. Scott County, 10 Iowa, 173 ; State v. Wapello County, 13 
Iowa, 388 ; La Fayette v. Cox, 5 Ind. 38. There are decisions in the Supreme 
Court of the United States which appear to be to the contrary. The city charter 
of Muscatine conferred in detail the usual powers, and then authorized the city 
" to borrow money for any object in its discretion," after a vote of the city in 
favor of the loan. In Meyer v. Muscatine, 1 Wall. 384, the court seem to have 

[ 245] 



* 215 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

municipality in all essential particulars, or the subscription or 
security will be void. And while mere irregularities of action, not 
going to the essentials of the power, would not prevent parties who 
had acted in reliance upon the securities enforcing them, yet as 
the doings of these corporations are matters of public record, and 
they have no general power to issue negotiable securities, any one 
who becomes holder of such securities, even though they be nego- 
tiable in form, will take them with constructive notice of any want 
of power in the corporation to issue them, and cannot enforce them 
when their issue was unauthorized. 1 

construed this clause as authorizing a loan for any object whatever ; though such 
phrases are understood usually to be confined in their scope to the specific objects 
before enumerated ; or at least to those embraced within the ordinary functions 
of municipal governments. See -Lafayette v. Cox, 5 Ind. 38. The case in 1 
Wallace was followed in Rogers v. Burlington, 3 Wall. 654, four justices dis- 
senting. See also Mitchell v. Burlington, 4 Wall. 270. A municipal corpora- 
tion having power to borrow money, it is held, may make its obligations 
payable wherever it shall agree. Meyer v. Muscatine, 1 Wall. 384. But some 
cases hold that such obligations can only be made payable at the corporation 
treasury, unless there is express legislative authority to make them payable 
elsewhere. People v. Tazewell County, 22 111. 147 ; Pekin v. Reynolds, 31 111. 
529. Such corporations cannot give their obligations all the qualities of nego- 
tiable paper, without express legislative permission. Dively v. Cedar Falls, 21 
Iowa, 565. See Thomas v. Richmond, 12 Wall. 349 ; Dillon, Mun. Corp. §§ 
406. 407. 

1 There is considerable confusion in the cases on this subject. If the corpo- 
ration has no authority to issue negotiable paper, or if the officers who assume 
to do so have no power under the charter for that purpose, there can be no doubt 
that the defence of want of power may be made by the corporation in any suit 
brought on the securities. Smith v. Cheshire, 13 Gray, 318 ; Gould v. Sterling, 
23 N. Y. 458 ; Andover v. Grafton, 7 N.1I. 298 ; Clark v. Des Moines, 19 Iowa, 
209. And in any case, if the holder has received the securities with notice of 
any valid defence, he takes them subject thereto. But where the corporation has 
power to issue negotiable paper in some cases, and its officers have assumed to 
do so in cases not within the charter, whether a bona fide holder would be charge- 
able with notice of the want of authority in the particular case, or, on the other 
hand, would be entitled to rely on the securities themselves as sufficient evidence 
that they were properly issued when nothing appeared on their face to apprise 
him of the contrary, is a question still open to some dispute. 

In Stoney v. American Life Insurance Co., 11 Paige, 635, it was held that a 
negotiable security of a corporation which upon its face appears to have been 
duly issued by such corporation, and in conformity with the provisions of its 
charter, is valid in the hands of a bona, fide holder thereof without notice, 
although such security was in fact issued for a purpose, and at a place not author- 
ized by the charter of the company, and in violation of the laws of the State 
where it was actually issued. In Gelpecke v. Dubuque, 1 Wall. 203, the law is 

[246] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 216 

* In some of the cases involving the validity of the sub- [* 216] 
script-ions made or bonds issued by municipal corporations 

stated as follows : " Where a corporation has power, under any circumstances, 
to issue negotiable securities, the bona fide holder has a right to presume they 
were issued under the circumstances which give the requisite authority, and they 
are no more liable to be impeached for any infirmity in the hands of such 
holder than any other commercial paper." See also Commissioners of Knox 
Co. v. Aspinwall, 21 How. 539; Russell v. Jeffersonville, 24 How. 287; Thorn 
v. Commissioners of Miami Co., 2 Black, 722; De Voss v. Richmond, 18 Grat. 
338 : San Antonio v. Lane, 32 Tex. 405. In Farmers and Mechanics Bank v. 
The Butchers and Drovers Bank, 16 N. Y. 125, it is said: "A citizen who deals 
directly with a corporation, or who takes its negotiable paper, is presumed to 
know the extent of its corporate powers. But when the paper is, upon its face, 
in all respects such as the corporation has authority to issue, and its only defect 
consists in some extrinsic fact, — such as the purpose or object for which it was 
issued, — to hold that the person taking the paper must inquire as to such extra- 
neous fact, of the existence of which he is in no way apprised, would obviously 
conflict with the whole policy of the law in regard to negotiable paper." In 
Madison and Indianapolis Railroad Co. v. The Norwich Savings Society, 24 Ind. 
461, this doctrine is approved, and a distinction made, in the earlier case of 
Smead ». Indianapolis, &c, Railroad Co., 11 Ind. 104, between paper executed 
ultra vires and that executed within the power of the corporation, but, by an 
abuse of the power in that particular instance, was repudiated. In Halstead 
v. Mayor, &c, of New York, 5 Barb. 218, action was brought upon warrants 
drawn by the corporation of New York upon its treasurer, not in the course of 
its proper and legitimate business. It was held that the corporation under its 
charter had no general power to issue negotiable paper, though, not being pro- 
hibited by law, it might do so for any debt contracted in the course of its proper 
legitimate business. We quote from the opinion of Edwards, J. : " It was con- 
tended on the argument, that the rule of the law-merchant which protects the 
bona fide holder of negotiable paper, without notice, was of universal applica- 
tion ; and that, if the defendants had a right to issue negotiable paper, it must 
ex necessitate be subject to the same rules as the negotiable paper of an individ- 
ual. This view seems plausible, but will it bear the test of examination ? In 
the first place, the defendants have no general power, either express or implied, 
to issue negotiable paper. They have only a special or conditional implied power 
for that purpose ; that it is necessary as a condition precedent to the validity of 
such paper that the debt which forms the consideration should be contracted in 
the proper legitimate business of the defendant. The act under which they 
were incorporated is declared to be a public act. Every person who takes their 
negotiable paper is bound to know the extent of their powers, and is presumed 
to receive it with a full knowledge that they have only a limited and conditional 
power to issue it. He is thus put on his inquiry, and takes it at his peril. The 
circumstances under which a bona fide holder, without notice, receives the nego- 
tiable paper of a natural person, or of a corporation having the general express 
power to issue negotiable paper, are very different. In both those instances, the 

[247] 



* 216 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

[* 217] in aid of internal * improvements, there has been occasion 
to consider clauses in the State constitutions designed to 



power to issue such paper is general and unconditional ; and hence the rules which 
have been established by commercial policy, for the purpose of giving currency 
to mercantile paper, are applicable. It results from the views which have been 
expressed, that the drafts in question, not having been issued by the defendants 
in their proper and legitimate business, are void in the hands of the plaintiff, 
although received by him without actual notice of their consideration." This 
decision was affirmed in 3 N. Y. 430. In Gould v. Town of Stirling, 23 N. Y. 
464, it was held that where a town had issued negotiable bonds, which could only 
be issued when the written assent of two-thirds of the resident persons taxed 
in the town had been obtained and filed in the county clerk's office, the bonds 
issued without such assent were invalid, and that the purchaser of them could 
not rely upon the recital in the bonds that such assent had been obtained, but 
must ascertain for himself at his peril. Say the court : " One who takes a nego- 
tiable promissory note or bill of exchange, purporting to be made by an agent, 
is bound to inquire as to the power of the agent. Where the agent is appointed 
and the power conferred, but the right to exercise the power has been made to 
depend upon the existence of facts of which the agent may be supposed to be in 
an especial manner cognizant, the bona fide holder is protected ; because he is 
presumed to have taken the paper upon the faith of the representation as to those 
facts. The mere fact of executing the note or bill amounts in itself, in such a 
case, to a representation by the agent to every person who may take the paper 
that the requisite facts exist. But the holder has no such protection in regard 
to the existence of the power itself. In that respect the subsequent bona fide 
holder is in no better situation than the payee, except in so far as the latter 
would appear of necessity to have had cognizance of facts which the other can- 
not [must?] be presumed to have known," And the case is distinguished from 
that of the Farmers and Mechanics Bank v. Butchers and Drovers Bank, 16 
N. Y. 125, where the extrinsic fact affecting the authority related to the state of 
accounts between the bank and one of its customers, which could only be known 
to the teller and other officers of the bank. See also Brady v. Mayor, &c, of 
New York, 2 Bosw. 173 ; Hopple v. Brown Township, 13 Ohio, N. s. 311 ; Veeder 
v. Lima, 19 Wis. 280. The subject is reviewed in Clark v. City of Des Moines, 
19 Iowa, 209. The action was brought upon city warrants, negotiable in form, 
and of which the plaintiff claimed to be bona fide assignee, without notice of any 
defects. The city offered to show that the warrants were issued without any 
authority from the city council, and without any vote of the council authorizing 
the same. It was held that the evidence should have been admitted, and that it 
would constitute a complete defence. See further Head v. Providence, &c, 
Co., 2 Crunch, 169; Royal British Bank v. Turquand, 6 El. & Bl. 327; Knox 
County v. Aspinwall, 21 How. 544 ; Bissell v. Jeffersonville, 24 How. 287 ; San- 
born v. Deerfield, 2 N. H. 254 ; Alleghany City v. McClurkan, 14 Penn. St. 83 ; 
Morris Canal and Banking Co. v. Fisher, 1 Stock. 667 ; Clapp v. Cedar Co., 
5 Iowa, 15; Commissioners, &c. v. Cox, 6 Ind. 403; Madison and Indianapolis 
R.R. Co. v. Norwalk Savings Society, 24 Ind. 457 ; Bird v. Daggett, 97 Mass. 

[248] 



CH. VIII.] THE GRADES OP MUNICIPAL GOVERNMENT. * 217 

limit the power of the * legislature to incur indebtedness [* 218] 
oji behalf of the State, and which clauses, it has been 
urged, were equally imperative in restraining indebtedness on 
behalf of the several political divisions of the State. The Consti- 
tution of Kentucky prohibited any act of the legislature author- 
izing any debt to be contracted on behalf of the Commonwealth, 
except for certain specified purposes, unless provision should be 
made in such act for an annual tax sufficient to pay such debt 
within thirty years ; and the act was not to have effect unless 
approved by the people. It was contended that this provision was 
not to apply to the Commonwealth as a mere ideal abstraction, 
unconnected with her citizens and her soil, but to the Common- 
wealth as composed of her people, and their territorial organiza- 
tions of towns, cities, and counties, which make up the State, and 
that it embraced in principle every legislative act which author- 
ized a debt to be contracted by any of the local organizations of 
which the Commonwealth was composed. The courts of that 
State held otherwise. " The clause in question," they say, " ap- 
plies in terms to a debt contracted on behalf of the Commonwealth 
as a distinct corporate body ; and the distinction between a debt 
on behalf of the Commonwealth, and a debt or debts on behalf of 
one county, or of any number of counties, is too broad and palpa- 

494. It is of course impossible to reconcile these authorities ; but the doctrine 
in the case of Gould v. Town of Stirling appears to us to be sound, and that, 
wherever a want of power exists, a purchaser of the securities is chargeable with 
notice of it, if the defect is disclosed by the corporate records, or, as in that 
case, by other records where the power is required to be shown. See Fish v. 
Kenosha, 26 Wis. 24. That the powers of the agents of municipal corporations 
are matters of record, and the corporation not liable for an unauthorized act, see 
further Baltimore v. Eschbach, 18 Md. 276 ; Johnson v. Common Council, 16 
Ind. 227. Those who deal with a corporation must take notice of the restrictions 
in its charter, or in the general law, regarding the making of contracts. Brady 
v. Mayor, &c, of New York, 2 Bosw. 173; s. c. 20 N. Y. 312; Swift v. Wil- 
liamsburg, 24 Barb. 427 ; Zabriskie v. Cleveland, &c, R.R. Co., 23 How. 381 ; 
Hull v. Marshall County, 12 Iowa, 142 ; Clark v. Des Moines, 19 Iowa, 199 ; 
Marsh v. Supervisors of Fulton Co., 10 Wall. 676. If they are not, no subse- 
quent ratification by the corporation can make them valid. Leavenworth v. 
Rankin, 2 Kansas, 357. The courts of Missouri and Florida have held that 
purchasers of securities issued under unconstitutional laws will be protected, 
and the securities enforced if they were purchased before the laws were declared 
invalid. Steines v. Franklin County, 48 Mo. 167 ; Columbia County v. King, 
13 Fla. 451. 

[ 249] 



* 218 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

ble to admit of the supposition that the latter class of 
[*219] * debts was intended to be embraced by terms specifically 

designating the former only." 1 The same view has been 
taken by the courts of Iowa, Wisconsin, Illinois, and Kansas, of 
the provisions in the constitutions of those States restricting the 
power of the legislature to contract debts on behalf of the State in 
aid of internal improvements ; 2 but the decisions of the first- 
named State have since been doubted, 3 and those in Illinois, it 
would seem, overruled. 4 In Michigan it has been held that they 
were inapplicable to a constitution adopted with a clear purpose to 
preclude taxation for such enterprises. 5 

1 Slack v. Railroad Co., 13 B. Monr. 16. 

2 Dubuque County v. Railroad Co., 4 Greene (Iowa), 1 ; Clapp v. Cedar 
County, 5 Iowa, 15; Clark v. Janesville, 10 Wis. 136; Bushnell v. Beloit, ib. 
195; Prettyman v. Supervisors, 19 111. 406 ; Robertson v. Rockford, 21 111. 451 ; 
Johnson v. Stark County, 24 111. 75 ; Perkins v. Lewis, ib. 208 ; Butler v. Dun- 
ham, 27 111. 474 ; Leavenworth Co. v. Miller, 7 Kansas, 479. 

3 State v. Wapello County, 13 Iowa, 388. And see People v. Supervisor, &c., 
16 Mich. 251. 

4 In People v. Mayor, &c., of Chicago, 51 111. 34, it is held expressly that 
the provision of the State constitution prohibiting the State from creating a 
debt exceeding fifty thousand dollars without the consent of the people manifested 
at a general election, would preclude the State from creating a like debt against 
a municipal corporation, except upon the like conditions. And it was pertinently 
said : " The protection of the whole implies necessarily the protection of all its 
organized parts, and the whole cannot be secure while all or any of its parts are 
exposed to danger. What is the real value of this provision of the constitution 
if the legislature, inhibited from incurring a debt beyond fifty thousand dollars 
on behalf of the State, may force a debt tenfold or one hundred-fold greater — 
for there is no limit to the power — upon all the cities of the State? We can 
perceive none." We do not see how this can be reconciled with the earlier 
Illinois cases, and it is so manifestly right, it is hoped the learned court will never 
make the attempt. 

5 The following extract from the opinion in Bay City v. State Treaurer, 23 
Mich. 504, is upon this point: "Our State had had a bitter experience of the 
evils of the government connecting itself with works of public improvement. In 
a time of inflation and imagined prosperity, the State had contracted a large debt 
for the construction of a system of railroads, and the people were oppressed with 
heavy taxation in consequence. Moreover, for a portion of this debt they had 
not received what they bargained for, and they did not recognize their legal or 
moral obligation to pay for it. The good name and fame of the State suffered in 
consequence. The result of it all was that a settled conviction fastened itself 
upon the minds of our people, that works of internal improvement should be 
private enterprises ; that it was not in the proper province of government to 
connect itself with their construction or management, and .that an imperative 

[250] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 219 

Another class of legislation, which has recently demanded the 
attention of the courts, has been little less troublesome, from the 

State policy demanded that no burdens should be imposed upon the people by 
State authority, for any such purpose. Under this conviction they incorporated 
in the constitution of 1850, under the significant title of ' Finance and Tax- 
ation,' several provisions expressly prohibiting the State from being a party to, 
or interested in, any work of internal impi'ovement, or engaged in carrying on 
any such work, except in the expenditure of grants made to it ; and also from 
subscribing to, or being interested in, the stock of any company, association, or 
corporation, or loaning its credit in aid of any person, association, or corpora- 
tion. Art. XIV. § 9, 8, and 7. 

"All these provisions were incorporated by the people on the constitution, as 
precautions against injudicious action by themselves, if in another time of infla- 
tion and excitement they should be tempted to incur the like burdensome tax- 
ation in order to accomplish public improvements in cases where they were not 
content to wait the result of private enterprise. The people meant to erect such 
effectual barriers that if the temptation should return, the means of inflicting the 
like injury upon the credit, reputation, and prosperity of the State, should not 
be within the reach of the authorities. They believed these clauses of the con- 
stitution accomplished this purpose perfectly, and none of its provisions had 
more influence in recommending that instrument to the hearty good-will of the 
people. 

" In process of time, however, a majority in the legislature were found willing, 
against the solemn warning of the executive, to resort again to the power of 
taxation in aid of internal improvement. It was discovered that though " the 
State " was expressly inhibited from giving such aid in any form, except in the 
disposition of grants made to it, the subdivisions of which the State was com- 
posed were not under the like ban. Decisions in other States were found which 
were supposed to sanction the doctrine that, under such circumstances, the State 
might do indirectly through its subdivisions what directly it was forbidden to do. 
Thus a way was opened by which the whole purpose of the constitutional pro- 
visions quoted might be defeated. The State could not aid a private corporation 
with its credit, but it might require each of its townships, cities, and villages to 
do so. The State could not load down its people with taxes for the construction 
of a public improvement, but it might compel the municipal authorities, which 
were its mere creatures, and which held their whole authority and their life at its 
will, to enforce such taxes, one by one, until the whole people were bent to the 
burden. 

"Now, whatever might be the just and proper construction of similar pro- 
visions in the constitutions of States whose history has not been the same with 
our own, the majority of this court thought when the previous case was before 
us, and they still think, that these provisions in our constitution do preclude the 
State from loaning the public credit to private corporations, and from imposing 
taxation upon its citizens or any portion thereof in aid of the construction of 
railroads. So the people supposed when the constitution was adopted. Consti- 
tutions do not change with the varying tides of public opinion and desire ; the 
will of the people therein recorded is the same inflexible law until changed by their 

[251] 



* 219 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

new, varied, and peculiar questions involved, than that in relation 
to municipal subscriptions in aid of internal improvements. As 
the power to declare war and to conduct warlike operations rests 
in the national government, and that government is vested with 
unlimited control of all the resources of the country for those 
purposes, the duty of national defence, and, consequently, the duty 
to defend all the citizens as well as all the property of all the 
municipal organizations in the several States, rests upon the na- 
tional authorities. This much is conceded, though in a qualified 
degree, also, and, subordinate to the national government, a like 
duty rests doubtless upon the State governments, which may 
employ the means and services of their citizens for the purpose. 
But it is no part of the duty of a township, city, or county, as 
such, to raise men or money for warlike operations, nor have they 
any authority, without express legislative sanction, to impose upon 
their people any burden by way of taxation for any such purpose. 1 
Nevertheless, when a war arises which taxes all the energies of the 
nation, which makes it necessary to put into the field a large pro- 
portion of all the able-bodied men of the country, and which rend- 
ers imperative a resort to all available means for filling the ranks 

of the army, recruiting the navy, and replenishing the 
[* 220] national treasury, the question * becomes a momentous 

one, whether the local organizations — those which are 
managed most immediately by the people themselves — may not 
be made important auxiliaries to the national and State govern- 
ments in accomplishing the great object in which all alike are 
interested so vitally ; and if they are capable of rendering impor- 

own deliberative action ; and it cannot be permissible to the courts that in order 
to aid evasions and circumventions, they shall subject these instruments, which in 
the main only undertake to lay down broad general principles, to a literal and 
technical construction, as if they were great public enemies standing in the way 
of progress, and the duty of every good citizen was to get around their pro- 
visions whenever practicable, and give them a damaging thrust whenever con- 
venient. They must construe them, as the people did in their adoption, if the 
means of arriving at that construction are within their power. In these cases we 
thought we could arrive at it from the public history of the times " 

1 Stetson v. Kempton, 13 Mass. 272 ; Gove v. Epping, 41 N. H. 545 ; Crowell 
v. Hopkinton, 45 N. H. 9 ; Baldwin v. North Branford, 32 Conn. 47 ; Webster v. 
Harwinton, ib. 131. See also Claflin v. Hopkinton, 4 Gray, 502 ; Cover v. Bay- 
town, 12 Minn. 124 ; Fiske v. Hazzard, 7 R. I. 438 ; Alley v. Edgecomb, 53 Me. 
446 ; People v. Supervisors of Columbia, 43 N. Y. 130 ; Walschlager v. Liberty, 
23 Wis. 362. 

[252] 



CH. VIII.] THE GRADES OP MUNICIPAL GOVERNMENT. * 220 

tant assistance, whether there is any constitutional principle which 
would be violated by making use of these organizations in a case 
where failure on the part of the central authority would precipi- 
tate general dismay and ruin. Indeed, as the general government, 
with a view to convenience, economy, and promptness of action, 
will be very likely to adopt, for any purposes of conscription, the 
existing municipal divisions of the States, and its demand for 
men to recruit its armies will assume a form seeming to impose 
on the people whose municipal organization embraces the territory 
covered by the demand, the duty of meeting it, the question we 
have stated may appear to be one rather of form than of substance, 
inasmuch as it would be difficult to assign reasons why a duty 
resting upon the citizens of a municipality may not be considered 
as resting upon the corporation itself of which they are the con- 
stituents, and if so, why it may not be assumed by the munici- 
pality itself, and then be discharged in like manner as any other 
municipal burden, if the legislature shall grant permission for that 
purpose. 

One difficulty that suggests itself in adopting any such doctrine 
is, that, by the existing law of the land, able-bodied men between 
certain specified ages are alone liable to be summoned to the per- 
formance of military duty ; and if the obligation is assumed by 
the municipal organizations of the State, and discharged by the 
payment of money or the procurement of substitutes, the taxation 
required for this purpose can be claimed, with some show of rea- 
son, to be taxation of the whole community for the particular benefit 
of that class upon whom by the statutes the obligation rests. When 
the public funds are used for the purpose, it will be insisted that 
they are appropriated to discharge the liabilities of private indi- 
viduals. Those who are already past the legal age of service, and 
who have stood their chance of being called into the field, or per- 
haps have actually rendered the required service, will be able to 
urge with considerable force that the State can no longer honorably 
and justly require them to contribute to the public defence, but 
ought to insist that those within the legal ages should perform 
their legal duty ; and if any upon whom that duty rests shall 
actually have enrolled themselves in the army with a view to dis- 
charge it, such persons may claim, with even greater rea- 
son, that every consideration of * equality and justice [* 221] 
demands that the property they leave behind them shall 
not be taxed to relieve others from a duty equally imperative. 

[253] 



* 221 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

Much may be said on both sides of this subject, but the judicial 
decisions are clear, that the people of any municipal corporation 
or political division of a State have such a general interest in 
relieving that portion of their fellow-citizens who are liable to the 
performance of military duty, as will support taxation or render 
valid indebtedness contracted for the purpose of supplying their 
places, or of filling any call of the national authorities for men, 
with volunteers who shall be willing to enter the ranks for such 
pecuniary inducements as may be offered them. The duty of 
national defence, it is held, rests upon every person under the pro- 
tection of the government who is able to contribute to it, and not 
solely upon those who are within the legal ages. The statute 
which has prescribed those ages has for its basis the presumption 
that those between the limits fixed are best able to discharge the 
burden of military service to. the public benefit, but others are 
not absolved from being summoned to the duty, if at any time 
the public exigency should seem to demand it. Exemption from 
military duty is a privilege rather than a right, and, like other 
statutory privileges, may be recalled at any time when reasons of 
public policy or necessity seem to demand the recall. 1 Moreover, 
there is no valid reason, in the nature of things, why those who 
are incapable of performing military service, by reason of age, 
physical infirmity, or other cause, should not contribute, in pro- 
portion to their ability, to the public defence by such means as are 
within their power; and it may well happen that taxation, for the 
purpose of recruiting the armies of the nation, will distribute the 
burden more equally and justly among all the citizens than any 
other mode which could be devised. Whether it will be just and 
proper to allow it in any instance must rest with the legislature 
to determine ; but it is unquestionably competent, with legislative 
permission, for towns, cities, and counties to raise money by loans 
or by taxation to pay bounty moneys to those who shall volunteer 
to fill any call made upon such towns, cities, or counties to supply 
men for the national armies. 2 

1 See post, p. 383, and cases cited in note. 

2 " The power to create a public debt, and liquidate it by taxation, is too clear 
for dispute. The question is, therefore, narrowed to a single point : Is the purpose 
in this instance a public one ? Does it concern the common welfare and interest 
of the municipality? Let us see. Civil war was raging, and Congress provided 
in the second section of the act of 24th February, 1864, that the quota of the 
troops of each ward of a city, town, township, precinct, &c, should be as nearly 

[254] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 222 

* Relief of the community from an impending or pos- [* 222] 
sible draft is not, however, the sole consideration which 
will support taxation by the municipal corporations of the State to 
raise money for the purpose of paying bounties to soldiers. Grat- 
itude to those who have entered the military service, whether as 
volunteers or drafted men, or as substitutes for others 
who were drafted or were * liable to be, is a consideration [* 223] 
which the State may well recognize, and it may compen- 

as possible in proportion to the number of men resident therein liable to render 
military service. Section three provided that all volunteers who may enlist after 
a draft shall be ordered shall be deducted from the number ordered to be drafted 
in such ward, town, &c. Volunteers are therefore by law to be accepted in 
relief of the municipality from a compulsory service to be determined by lot or 
chance. Does the relief involve the public welfare or interest? The answer 
rises spontaneously in the breast of every one in the community liable to the mil- 
itary burden. It is given, not by the voice of him alone who owes the service, 
but swells into a chorus from his whole family, relatives, and friends. Military 
service is the highest duty and burden the citizen is called to obey or to bear. It 
involves life, limb, and health, and is therefore a greater ' burden ' than the tax- 
ation of property. The loss or the injury is not confined to the individual him- 
self, but extends to all the relations he sustains. It embraces those bound to him 
in the ties of consanguinity, friendship, and interest ; to the community which 
must furnish support to his family, if he cannot, and which loses in him a member 
whose labor, industry, and property contribute to its wealth and its resources ; 
who assists to bear its burdens, and whose knowledge, skill, and public spirit con- 
tribute to the general good. Clearly the loss of that part of the population upon 
whom the greatest number depend, and who contribute most to the public wel- 
fare, by their industry, skill, and property, and good conduct, is a common loss, 
and therefore a general injury. These are alike subject to the draft. The blind 
and relentless lot respects no age, condition, or rank in life. It is, therefore, 
clearly the interest of the community that those should serve who are willing, 
whose loss wilt sever the fewest ties, and produce the least injury. 

" The bounty is not a private transaction in which the individual alone is ben- 
efited. It benefits the public by inducing and enabling those to go who feel they 
can best be spared. It is not voluntary in those who pay it. The community is 
subject to the draft, and it is paid to relieve it from a burden of war. It is not 
a mere gift or reward, but a consideration for services. It is therefore not a 
confiscation of one man's property for another's use, but it is a contribution from 
the public treasury for a general good. In short, it is simply taxation to relieve 
the municipality from the stern demands of war, and avert a public injury in the 
loss of those who contribute most to the public welfare." Speer v. School Direc- 
tors of Blairsville, 50 Penn. St. 159. See also Waldo v. Portland, 33 Conn. 
363; Bartholomew v. Harwinton, ib. 408; Fowler v. Danvers, 8 Allen, 80; 
Lowell v. Oliver, ib. 247 ; Washington County v. Berwick, 56 Penn. St. 466 ; 
Trustees of Cass v. Dillon, 16 Ohio, N. s. 38 ; State v. Wilkesbarre, 20 Ohio, N. s. 
292. Also Opinions of Justices, 52 Me. 595, in which the view is expressed 
that towns cannot, under the power to raise money for " necessary town charges," 

[ 255 ] 



* 223 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

sate the service either by the payment of bounty moneys directly 
to such persons, or by provision for the support of those dependent 
upon them while they shall be absent from their homes. Whether 
we regard such persons as public benefactors, who, having taken 
upon themselves the most severe and dangerous duty a citizen is 
ever called upon to perform, have thereby entitled themselves to 
public reward as an incentive to fidelity and courage, or as persons 
who, having engaged in the public service for a compensation inad- 
equate to the toil, privation, and danger incurred, are deserving of 
the bounty as a further recognition on the part of the community 
of the worth of their services, there seems in either case to be no 
sufficient reason to question the right of the legislature to authorize 
the municipal divisions of the State to raise moneys in any of the 

usual modes, for the purpose of paying bounties to them 
[* 224] or their families in recognition of such services. 1 * And if 

a municipal corporation shall have voted moneys for such 

purpose without legislative authority, it is competent for 
[* 225] the * legislature afterwards to legalize their action if it 

shall so choose. 2 

raise and pay commutation moneys to relieve persons drafted into the military 
service of the United States. 

1 The act under which the Pennsylvania case, cited in the preceding note, was 
decided, authorized the borough to contract a debt for the payment of three 
hundred dollars to each non-commissioned officer and private who might there- 
after volunteer and enter the service of the United States, and be credited upon 
the quota of the borough under an impending draft. The whole purpose, there- 
fore, was to relieve the community from the threatened conscription. But in the 
case of Brodhead v. Milwaukee, 19 "Wis. 652, it was held constitutional, not only 
to provide for the future by such municipal taxation, but also to raise moneys to 
pay bounties to volunteers previously enlisted, and even to those who should 
thereafter procure substitutes for themselves, and have them credited on the 
municipal quota. 

2 Booth v. Town of Woodbury, 32 Conn. 118; Bartholomew v. Harwinton, 
33 Conn. 408; Crowell v. Hopkinton, 45 N. H. 9; Shackford v. Newington, 46 
N. H. 415; Lowell v. Oliver, 8 Allen, 247; Ahl r. Gleim, 52 Penn. St. 432; 
Weister v. Hade, ib. 474 ; Coffman v. Keightley, 24 Ind. 509 ; Board of Com- 
missioners v. Brearss, 25 Ind. 110; Connor v. Fulsom, 13 Minn. 219; State v. 
Demorest, 32 N. J. 528 ; Taylor v. Thompson, 42 111. 9 ; Barbour v. Camden, 51 
Me. 608 ; Hart v. Holden, 55 Me. 572 ; Burnham v. Chelsea, 43 Vt. 69 ; Butler 
v. Pultney, ib. 481. In State v. Jackson, 33 N. J. 450, a statute authorizing a 
town to raise money by tax to relieve its inhabitants from the burden of a draft 
under a law of Congress, was held void as tending to defeat the purpose of such 
law. The decision was made by a bare majority of a bench of eleven judges. 
Compare OTIara v. Carpenter, 23 Mich. 410, in which a contract of insurance 
against a military draft was held void on grounds of public policy. 

[ 256 ] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 226 

* The cases to which we have referred in the notes [* 226] 
assume that, if the purpose is one for which the State 
might properly levy a tax upon its citizens at large, the legislature 
would also have power to apportion and impose the duty, or confer 
the power of assuming it upon the towns and other municipal or 
political divisions. And the rule laid down is one which opens a 
broad field to legislative discretion, allowing as it does the 
raising and * appropriation of moneys, whenever, in the [* 227] 
somewhat extravagant words of one of the cases, there is 
" the least possibility that it will be promotive in any degree of the 
public welfare." 1 The same rule, substantially, has been recognized 
by the Court of Appeals of New York. " The legislature is not 
confined in its appropriation of the public moneys, or of the sums 
to be raised by taxation in favor of individuals, to cases in which 
a legal demand exists against the State. It can thus recognize 
claims founded in equity and justice in the largest sense of these 
terms, or in gratitude or charity. Independently of express con- 
stitutional restrictions, it can make appropriations of money when- 
ever the public well-being requires or will be promoted by it, and 
it is the judge of what is for the public good. It can, moreover, 
under the power to levy taxes, apportion the public burdens among 
all the tax-paying citizens of the State, or among those of a partic- 
ular section or political division." 2 And where citizens have vol- 
untarily advanced moneys for the purpose of paying bounties to 
recruits who fill the quota of a municipal corporation, on an under- 
standing, based upon informal corporate action, that the moneys 
should be refunded when a law should be passed permitting it, a 
subsequent act of the legislature authorizing taxation for this pur- 
pose is valid. 3 

However broad are the terms employed in describing the legis- 
lative power over taxation in these cases, it is believed that no one 
of them has gone so far as to sanction taxation or the appro- 

1 Booth v. Woodbury, 32 Conn. 128, per Butler, J. " To make a tax law 
unconstitutional on this ground, it must be apparent at first blush that the com- 
munity taxed can have no possible interest in the purpose to -which their money 
is to be applied." Sharpless v. Mayor, &c, 21 Penn. St. 174, following Cheaney 
v. Hooser, 9 B. Monr. 345. 

2 Guilford v. Supervisors of Chenango, 13 N. Y. 149. 

3 Weister v. Hade, 52 Penn. St. 474. And see People v. Sullivan, 43 111. 
413; Johnson v. Campbell, 49 111. 316. Compare Susquehanna Depot v. Barry, 
61 Penn. St. 317. 

17 [ 257 ] 



* 227 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

priation of the public revenue in order to refund to individuals 
moneys which they may have paid to relieve themselves from an 
impending draft, or may have voluntarily contributed to any public 
purpose, from motives purely personal to themselves, without any 
reason to rely upon the credit of the State, or of any municipal 
corporation, for reimbursement, and where the circumstances are 
not such as fairly to challenge the public gratitude. Taxation in 
such a case, where no obligation, honorary or otherwise, rests upon 
the public, would be nothing else than a naked case of appropri- 
ating the property of the tax-payer for private purposes, and that 
without reference to anticipated public benefits. 1 

1 Tyson v. School Directors, &c, 51 Perm. St. 9. A meeting of persons liable 
to draft under the law of the United States was called, and an association formed, 
called the Halifax Bounty Association, which levied an assessment of thirty dol- 
lars on each person liable to military duty in the township, and solicited contri- 
butions from others. Afterwards, an act was passed by the legislature, with 
a preamble reciting that certain citizens of Halifax township, associated as the 
Halifax Bounty Association, for freeing the said township from the late drafts, 
advanced moneys, which were expended in paying bounties to volunteers to fill 
the quota of the township. The act then authorized and required the school 
directors to borrow such sums of money as would fully reimburse the said Hali- 
fax Bounty Association for moneys advanced to free said township from the 
draft, and then further authorized the school directors to levy and collect a tax 
to repay the sums borrowed. The court say: "We are bound to regard the 
statute as an authority to reimburse what was intended by the Association as 
advances made to the township with the intent or understanding to be reimbursed 
or returned to those contributing. This was the light in which the learned judge 
below regarded the terms used ; and unless this appears in support of the present 
levy by the school directors, they are acting without authority. But the learned 
judge, if I properly comprehend his meaning, did not give sufficient importance 
to these terms, and hence, I apprehend, he fell into error. He does not seem to 
have considered it essential whether the Association paid its money voluntarily 
in aid of its own members, or expressly to aid the township in saving its people 
from a draft, with the understanding that it was advanced in the character of a 
loan if the legislature chose to direct its repayment, and the school directors 
chose to act on the authority conferred. This we cannot agree to. Such an 
enactment would not be legislation at all. It would be in the nature of judicial 
action, it is true ; but wanting the justice of notice to the parties to be affected 
by the hearing, trial, and all that gives sanction and force to regular judicial 
proceedings, it would much more resemble an imperial rescript than constitutional 
legislation : first, in declaring an obligation where none was created or previously 
existed ; and next, in decreeing payment by directing the money or property of 
the people to be sequestered to make the payment. The legislature can exercise 
no such despotic functions ; and as it is not apparent in the act that they at- 
tempted to do so, we are not to presume that they did. They evidently intended 

[258] 



CH. VIII.] THE GRADES OP MUNICIPAL GOVERNMENT. * 228 

* But it has been held by the Supreme Court of Massa- [* 228] 
chusetts that towns might be authorized by the legislature 

to raise moneys by taxation for the purpose of refunding sums 
contributed by individuals to a common fund, in order to fill the 
quota of such towns under a call of the President, notwithstand- 
ing such moneys might have been contributed without promise or 
expectation of reimbursement. The court were of opinion 
that such contributions * might well be considered as ad- [* 229] 
vancements to a public object, and, being such, the leg- 
islature might properly recognize the obligation and permit the 
towns to provide for its discharge. 1 

* On a preceding page we have spoken in strong terms of [* 230] 
the complete control which is possessed by the legislative 
authority of the State over the municipal corporations. There are 
nevertheless some limits to its power in this regard, as there are in 
various other directions limits to the legislative power of the State. 
Some of these are expressly defined ; others spring from the usages, 
customs, and maxims of our people ; they are a part of its history, 
a part of the system of local self-government in view of the con- 
tinuance and perpetuity of which all our constitutions are framed, 
and of the right to which the people can never be deprived except 
through express renunciation on their part. One undoubted right 
of the people is to choose, directly or indirectly, under the forms 
and restrictions prescribed by the legislature for reasons of general 
State policy, the officers of local administration, and the board that 
is to make the local laws. This is a right which of late has some- 

the advancements to be reimbursed to be only such as were made on the faith that 
they were to be returned." See also Crowell v. Hopkinton, 45 N. H. 9 ; Miller 
v. Grandy, 13 Mich. 540; Pease v. Chicago, 21 111. 508; Ferguson v. Landraw, 
5 Bush, 230 ; Esty v. Westminster, 97 Mass. 324 ; Cole v. Bedford, ib. 326 ; 
Usher v. Colchester, 33 Conn. 567 ; Perkins v. Milford, 59 Me. 315; Thompson 
v. Pittston, ib. 545 ; Kelly v. Marshall, 69 Penn. St. 319. In Freeland v. Hast- 
ings, 10 Allen, 570, it was held that the legislature could not empower towns to 
raise money by taxation for the purpose of refunding what had been paid by 
individuals for substitutes in military service. In Cass v. Dillon, 16 Ohio, N. s. 
38, it was held that taxes to refund bounties previously and voluntarily paid 
might be authorized. See also State v. Harris, 17 Ohio, N. 8. 608. The Supreme 
Court of Wisconsin, in the well-reasoned case of State v. Tappan, 29 Wis. 664, 
deny the power of the State to compel a municipal corporation to pay bounties 
where it has not voted to do so. 

1 Freeland v. Hastings, 10 Allen, 585. And see Hilbish v. Leatherman, 64 
Penn. St. 154, and compare Tyson v. School Directors, 51 Penn. St. 9. 

[ 259] 



* 230 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

times been encroached upon under various plausible pretences, but 
almost always with the result which reasonable men should have 
anticipated from the experiment of a body at a distance attempting 
to govern a local community of whose affairs or needs they could 
know but little, except as they should derive information from 
sources likely to have interested reasons for misleading. 1 Another 
is the right of the local community to determine what pecuniary 
burdens it shall take upon its shoulders. But here from the very 
nature of the case there must be some limitations. The munici- 
palities do not exist wholly for the benefit of their corporators, but 
as a part of the machinery of State government, and they cannot 
be permitted to decline a performance of their duties or a discharge 
of their obligations as such. They cannot abolish local govern- 
ment ; they cannot refuse to provide the conveniences for its 
administration ; they cannot decline to raise the necessary taxes 
for the purpose ; they cannot repudiate pecuniary obligations that 
justly rest upon them as a local government. Over these matters 
the legislature of the State must have control, or confusion would 
inevitably be introduced into the whole system. But beyond this 
it is not often legitimate for the State to go except in moulding and 
shaping the local powers, and perhaps permitting the local authorities 
to do certain things for the benefit of their citizens which under 
the general grants of power would be inadmissible. 

On this general subject we shall venture to lay down the follow- 
ing propositions as the result of the authorities : — 

1 On this subject reference is made to what is said by Campbell, Ch. J., in 
People v. Hurlbut, 24 Mich. 87 et seq. See also p. 97. Much has been said 
concerning the necessity of legislative interference in some cases where bad men 
were coming into power through universal suffrage in cities, but the recent expe- 
rience of the country shows tbat this has oftener been said to pave the way for 
bad men to obtain office or grants of unusual powers from the legislature than 
with any purpose to effect local reforms. And the great municipal scandals and 
frauds that have prevailed, like those which were so notorious in New York City, 
have been made possible and then nursed and fostered by illegitimate interference 
at the seat of State government. Some, officers, usually of local appointment, 
are undoubtedly to be regarded as state officers whose choice may be confided to 
a state authority without any invasion of local right ; such as militia officers, 
officers of police, and those who have charge of the execution of the criminal 
laws ; but those who are to administer the corporate funds and have the control 
of the corporate property, those who make the local laws and those who execute 
them, cannot rightfully be chosen by the central authority. Dillon, Mun. Corp. 
§ 33. See People©. Com. Council of Detroit, Sup. Court of Mich. Oct. Term, 1873. 
[ 260] 



Jfl. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 230 

1. That the legislature has undoubted power to compel the 
municipal bodies to perform their functions as local governments 
under their charters, and to recognize, meet, and discharge the 
duties and obligations properly resting upon them as such, whether 
they be legal, or merely equitable or moral ; and for this purpose 
it may require them to exercise the power of taxation whenever 
and wherever it may be deemed necessary or expedient. 1 

2. That in some cases, in view of the twofold character of such 
bodies, as being on the one hand agencies of State government, 
and on the other, corporations endowed with capacities and per- 
mitted to hold property and enjoy peculiar privileges for the ben- 
efit of their corporators exclusively, the legislature may permit the 
incurring of expense, the contracting of obligations, and the levy of 
taxes which are unusual, and which would not be admissible under 
the powers usually conferred. Instances of the kind may be men- 
tioned in the offer of military bounties, and the payment of a dis- 

1 In support of this, we refer to the very strong case of Guilford v. Supervisors 
of Chenango, 18 Barb. 615; s. c. 13 N. Y. 143; where a town was compelled 
by the legislative authority of the State to reimburse its officers the expenses 
incurred by them in the honest but mistaken endeavor to discharge what they 
believed to be their duty ; also to Sinton v. Ashbury, 41 Cal. 530, in which it is 
said by Crocket, J., that: " It is established by an overwhelming weight of au- 
thority, and I believe is conceded on all sides, that the legislature has the consti- 
tutional power to direct and control the affairs and property of a municipal 
corporation for municipal purposes, provided it does not impair the obligation 
of a contract, and by appropriate legislation may so control its affairs as ulti- 
mately to compel it, out of the funds in its treasury, or by taxation to be imposed 
for that purpose, to pay a demand when properly established, which in good 
conscience it ought to pay, even though there be no legal liability to pay it : ' 
(citing Blanding v. Burr, 13 Cal. 343; Beals v. Almador Co., 35 Cal. 624; 
People v. Supervisors of San Francisco, 11 Cal. 206; Sharp v. Contra Costa 
Co., 34 Cal. 284; People u. McCreery, 34 Cal. 432 ; People v. Alameda, 26 Cal. 
641, and holding that a city might be compelled to pay the claim of persons who 
had acted as commissioners in the extension of certain of its streets) ; also to 
Borough of Dunmore's Appeal, 52 Penn. St. 374, in which the legislature as- 
sumed the right of apportioning the indebtedness of a town among the boroughs 
carved out of it; supported by Layton v. New Orleans, 12 La. An. 515; People 
v. Alameda, 26 Cal. 641 ; and Burns v. Clarion County, 62 Penn. St. 423 ; also to 
People v. Flagg, 46 N. Y. 401, in which the legislative power to direct the con- 
struction of a public road, and to compel the creation of a town debt for the pur- 
pose, was fully sustained ; to People v. Power, 25 111. 187 ; Waterville v. County 
Commissioners, 59 Me. 80 ; and to numerous other cases cited ante, p. 193, note, 
and which we will not occupy space by repeating here. 

[261] 



* 230 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

proportionate share of a State burden in consideration of peculiar 

local benefits which are to spring from it. 1 
[* 231] * 3. But it is believed the legislature has no power, against 

the will of a municipal corporation, to compel it to contract 
debts for local purposes in which the State has no concern or to 
assume obligations not within the ordinary functions of municipal 
government. Such matters are to be disposed of in view of the in- 
terests of the corporators exclusively, and they have the same right 
to determine them for themselves which the associates in private 
corporations have to determine for themselves the questions which 
arise for their corporate action. The State in such cases may re- 
move restrictions and permit action, but it cannot compel it. 2 

1 The subject of military bounties has been sufficiently referred to already. 
As to the right to permit a municipal corporation to burden itself with a local 
tax for a State object, we refer to Merrick v. Amherst, 12 Allen, 500 ; Marks v. 
Trustees of Pardue University, 37 Ind. 155 ; Hasbrouck v. Milwaukee, 13 Wis. 
37. The first was a case in which, in consideration of the local benefits ex- 
pected from the location of the State agricultural college in a certain town, the 
town was permitted to levy a large local tax in addition to its proportion of the 
State burden for the erection of the necessary buildings. The second case 
was of a similar nature. The third was the case of permission to levy a city tax 
to improve the city harbor ; a work usually done by the general government. 
There are cases which go further than these, and hold that the legislature may 
compel a municipal corporation to do what it may thus permit. Thus, in Kirby 
v. Shaw, 19 Penn. St. 258, it appeared that by an act of April 3, 1848, the com- 
missioners of Bradford County were required to add $500 annually, until 1857, 
to the usual county rates and levies of the borough of Towanda in said county, 
for the purpose of defraying the expenses of the court house and jail, then in 
process of erection in that borough. The act was held constitutional on the 
principle of assessment of benefits. In Gordon v. Cornes, 47 N. Y. 608, a law 
was sustained which " authorized and required" the village of Brockport to levy 
a tax for the erection of a State normal school building at that place. It is to 
be said of this case, however, that there was to be in the building a grammar 
school free to all the children of proper acquirements in the village ; so that the 
village was to receive a peculiar and direct benefit from it, besides those which 
would be merely incidental to the location of the normal school in the place. 
But for this circumstance it would be distinctly in conflict with State v. Haben, 
22 Wis. 660, where it was held incompetent for the legislature to appropriate 
the school moneys of a city to the purchase of a site for a State normal school ; 
and also with other cases cited in the next note. It must be conceded, however, 
that there are other cases which support it. 

2 There are undoubtedly some cases which go to the extent of holding that 
municipal corporations and organizations are so completely under the legislative 
control, that whatever the legislature may permit them to do, it may compel them 

[262] 



CH. VIII.] THE GRADES OP MUNICIPAL GOVERNMENT. * 232 

* 4. And there is much good reason for assenting also [* 232] 
to what several respectable authorities have held, that where 

to do, whether the corporators are willing or not. A leading case is Thomas v. 
Leland, 24 Wend. 67. In that case it appeared that certain citizens of Utica 
had given their bond to the people of the State of New York, conditioned for 
the payment into the canal fund of the sum of $38,615, the estimated difference 
between the cost of connecting the Chenango Canal with the Erie at Utica, 
instead of at Whitesborough, as the canal commissioners had contemplated ; 
and it was held within the constitutional powers of the legislature to require this 
sum to be assessed upon the taxable property of the city of Utica, supposed to 
be benefited by the canal connection. The court treat the case as "the ordinary 
one of local taxation to make or improve a public highway," and dismiss it with 
few words. If it could be considered as merely a case of the apportionment 
between a number of municipalities of the expense of a public highway running 
through them, it would have the support of Waterville v. County Commission- 
ers, 59 Me. 80; Commonwealth v. Newburyport, 103 Mass. 129; and also what 
is said in Bay City v. State Treasurer, 23 Mich. 503, where it is admitted that 
over the matter of the construction of such a highway, as well as the apportion- 
ment of expense, the State authority must necessarily be complete. • It has been 
considered in subsequent New York cases as a case of apportionment merely. 
See People v. Brooklyn, 4 N. Y. 437 ; Howell v. BmTalo, 37 N. Y. 271. The 
cases of Kirby v. Shaw, 19 Penn. St. 258, and Gordon v. Cornes, 47 N. Y. 608, 
referred to in the preceding note, it will be perceived, were also treated as cases 
merely of apportionment. How that can be called a case of apportionment, 
however, which singles out a particular town, and taxes it for benefits to be 
expected from a highway running across the State, without doing the same by 
any other town in the State, it is not easy to perceive. In Commissioners of 
Revenue v. The State, 45 Ala. 399, it appeared that the legislature had created 
a local board consisting of the president of the county commissioners of revenue 
of Mobile County, the mayor of Mobile, the president of the Bank of Mobile, 
the president of the Mobile Chamber of Commerce, and one citizen of Mobile 
appointed by the governor, as a board for the improvement of the river, harbor, 
and bay of Mobile, and required the commissioners of revenue of Mobile County 
to issue to them for that purpose county bonds to the amount of $1,000,000, 
and to levy a tax to pay them. Here was an appointment by the State of local 
officers to make at the expense of the locality an improvement which it has been 
customary for the general government to take in charge as one of national con- 
cern ; but the Supreme Court of the State sustained the act, going farther, as 
we think, in doing so, than has been gone in any other case. In Hasbrouck v. 
Milwaukee, 13 Wis. 37, approved and defended in an able opinion in Mills 
v. Charleton, 29 Wis. 413, the power of the legislature to compel the city of 
Milwaukee to issue bonds or levy a tax for the improvement of its harbor was 
distinctly denied, though it was conceded that permission might be given, which 
the city could lawfully act upon. Compare also Knapp v. Grant, 27 Wis. 147; 
State v. Tappan, 29 Wis. 664; Atkins v. Randolph, 31 Vt. 226. In People v. 
Bacheller, recently decided in the Supreme Court of Appeals of New York, that 

[ 263] 



* 232 CONSTITUTIONAL LIMITATIONS. [CH. VIIi T . 

a demand is asserted against a municipality, though of a nature 
that the legislature would have a right to require it to incur and 

court, through an able and lucid opinion by Grover, J., denied the validity of a 
mandatory statute compelling a town to take stock in a railroad corporation, 
and to issue its bonds in exchange therefor. The authority to permit the town 
to do this was not discussed, but, taking that as admitted, it is declared that 
municipal corporations, in the making or refusing to make arrangements of the 
nature of that attempted to be forced upon the town in question, were entitled 
to the same freedom of action precisely which individual citizens might claim. 
This opinion reviews the prior decisions in the same State, and finds nothing 
conflicting with the views expressed. In People v. Mayor, &c, of Chicago, 51 
111. 17; 8. c. 2 Am. Rep. 278, it was denied, in an opinion of great force and 
ability delivered by Chief Justice Breese, that the State could empower a board 
of park commissioners of State appointment to contract a debt for the city of 
Chicago for the purposes of a public park for that city, and without the consent 
of its citizens. The learned judge says (p. 31) : "Whilst it is conceded that 
municipal corporations, which exist only for public purposes, are subject at all 
times to the control of the legislature creating them, and have in their franchises 
no vested rights, and whose powers and privileges the creating power may alter, 
modify, or abolish at pleasure, as they are but parts of the machinery employed 
to carry on the affairs of the State, over which and their rights and effects the 
State may exercise a general superintendence and control, — Richland County v. 
Lawrence County, 12 111. 8 ; Trustees of Schools v. Talman, 13 ib. 30, — we 
are not of the opinion that that power, vast as it is, can be so used as to compel 
any one of our many cities to issue its bonds against its will to erect a park, or 
for any other improvement, to force it to create a debt of millions ; in effect, 
to compel every property-owner in the city to give his bond to pay a debt thus 
forced upon the city. It will hardly be contended that the legislature can com- 
pel a holder of property in Chicago to execute his individual bond as security 
for the payment of a debt so ordered to be contracted. A city is made up of 
individuals owning property within its limits, the lots and blocks which compose 
it, and the structures which adorn them. What would be the universal judg- 
ment, should the legislature, sua sponte, project magnificent and costly structures 
within one of our cities, — triumphal arches, splendid columns, and perpetual 
fountains, — and require in the act creating them that every owner of property 
within the city limits should give his individual obligation for his proportion of 
the cost, and impose such cost as a lien upon his property for ever. What 
would be the public judgment of such an act, and wherein would it differ from 
the act under consideration ? " And again : " Here, then, is a case where taxes 
may be assessed, not by any corporate authority of the city, but by commission- 
ers, to whom is entrusted the erection, embellishment, and control of this park, 
and this without consent of the property-owners. 

" We do not think it within the constitutional competency of the legislature to 
delegate this power to these commissioners. If the principle be admitted that 
the legislature can, uninvited, of their mere will, impose such a burden as this 
upon the city of Chicago, then one much heavier and more onerous can be 

[264] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 233 

* discharge, yet if its legal and equitable obligation is dis- [* 233] 
puted, the corporation has the right to have the dispute 
settled by the courts, and cannot be bound by a legislative allow- 
ance of the claim. 1 

imposed ; in short, no limit can be assigned to legislative power in this regard. 
If this power is possessed, then it must be conceded that the property of every 
citizen within it is held at the pleasure and will of the legislature. Can it be that 
the General Assembly of the State, just and honest as its members may be, is 
the depository of the rights of property of the citizens ? Would there be any 
sufficient security for property if such a power was conceded ? No well-regu- 
lated mind can entertain the idea that it is within the constitutional competency 
of the legislature to subject the earnings of any portion of our people to the 
hazards of any such legislation." 

This case should be read in connection with the following in the same State, 
and all in the same direction. People v. Common Council of Chicago, 51 111. 58 ; 
Lovingston v. Wider, 53 111. 302 ; People v. Canty, 55 111. 33 ; Wider v. East 
St. Louis, ib. 133. Also People v. Common Council of Detroit, Sup. Court of 
Michigan, Oct. Term, 1873. 

We are constrained to think the recent case of People v. Bacheller above 
referred to is inconsistent with the previous case of Thomas v. Leland in the 
same State, and therefore overrules it. And putting that case aside, as well as a 
few other cases which were decided on the ground of an apportionment of local 
benefits, we think the case in Alabama will stand substantially alone. Before 
that decision the Supreme Court of Illinois were able to say, in a case calling for 
a careful and thorough examination of the authorities, that counsel had " failed 
' to find a case wherein it has been held that the legislature can compel a city 
against its will to incur a debt by the issue of its bonds for a local improvement." 
People v. Mayor, &c, 51 111. 33. 

! It was held in People v. Hawes, 37 Barb. 44.0, that the legislature had no 
right to direct a municipal corporation to satisfy a claim made against it for dam- 
ages for breach of contract, out of the funds or property of such corporation. 
In citing the cases of Guilford v. Supervisors of Chenango, 13 N. Y. 143, 
and People v. Supervisors of New York, 11 Abb. 114, a distinction is drawn 
by which the cases are supposed to be reconciled with the one then under 
decision. "Those cases and many others," say the court, p. 455, "related not 
to the right or power of the legislature to compel an individual or corporation to 
pay a debt or claim, but to the power of the legislature to raise money by tax, 
and apply such money, when so raised, to the payment thereof. We could not, 
under the decisions of the courts on this point, made in these and other cases, 
now hold that the legislature had not authority to impose a tax to pay any claim, 
or to pay it out of the State treasury ; and for this purpose to impose a tax upon 
the property of the State, or upon any portion of the State. This was fully set- 
tled in People v. Mayor, &c, of Brooklyn, 4 N. Y. 419 ; but neither that case nor 
the case in 13 N. Y. 143, in any manner gave a warrant for the opinion, that the 
legislature had a right to direct a municipal corporation to pay a claim for dam- 
ages for breach of a contract, out of the funds or property of the corporation, 

[265] 



* 233 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

Having concisely stated these general views, we add 
[* 234] merely, that *those cases which hold that the State may 

raise bounty moneys by taxation, to be paid to persons in 
the military service, we think stand by themselves, and are sup- 
ported by different principles from any which can fairly be sum- 
moned to the aid of some of the other cases which we have cited. 
The burden of the public defence unquestionably rests upon the 

whole community ; and the legislature may properly pro- 
[* 235] vide for its apportionment and * discharge in such manner 

as its wisdom may prescribe. But those cases which hold 
it competent for the legislature to give its consent to a municipal 
corporation engaging in works of public improvement outside its 
territorial limits, and becoming a stockholder in a private corpora- 
tion, must be conceded on all hands to have gone to the very lim- 

without a submission of such claim to a judicial tribunal." If by this is meant 
that the legislature has power to compel a corporation to tax its citizens for the 
payment of a demand, but has not the authority to make it a charge against the 
corporation in any other mode, the distinction seems to be one of form rather 
than of substance. It is no protection to the rights or property of a municipal 
corporation to hold that the legislature cannot determine upon a claim against it, 
if at the same time the corporation may be compelled by statute to assume and 
discharge the obligation through the levy of a tax for its satisfaction. But if it is 
only meant to declare that the legislature cannot adjudicate upon disputed claims, 
there can be no good reason to find fault with the decision. It is one thing to 
determine that the nature of a claim is such as to make it proper to satisfy it by 
taxation, and another to adjudge how much is justly due upon it. The one is 
the exercise of legislative power, the other of judicial. See Sanborn v. Rice, 9 
Minn. 273 ; Commonwealth v. Pittsburgh, 34 Penn. St. 496 ; Plimpton v. Som- 
erset, 33 Vt. 283. But the power to decide upon the breach of a contract by a 
corporation, and the extent of the damages which have resulted, is less objec- 
tionable and less likely to lead to oppression, than the power to impose through 
taxation a claim upon a corporation which it never was concerned in creating, 
against which it protests, and which is unconnected with the ordinary functions 
and purposes of municipal government. In Borough of Dunmore's Appeal, 52 
Penn. St. 374, a decision was made which seems to conflict with that in People 
v. Hawes, supra; and with the subsequent case of Baldwin v. Mayor, &c, of 
New York, 42 Barb. 549. The Pennsylvania court decided that the constitu- 
tional guaranty of the right to jury trial had no application to municipal corpora- 
tions, and a commission might be created by the legislature to adjust the demands 
between them. See, also, Layton v. New Orleans, 12 La. An. 515. In People 
v. Power, 25 111. 187, it was held competent for the legislature to apportion the 
taxes collected in a county between a city therein and the remainder of the 
county, and that the county revenues " must necessarily be within the control of 
the legislature for political purposes." 

[266] 



CH. VIII.] THE GRADES OP MUNICIPAL GOVERNMENT. * 235 

its of constitutional power in this direction ; and to hold that the 
legislature may go even further, and, under its power to control 
the taxation of the political divisions and organizations of the 
State, may compel them, without the consent of their citizens, to 
raise money for such or any other unusual purposes, or to contract 
debts therefor, seems to us to be introducing new principles into 
our system of local self-government, and to be sanctioning a cen- 
tralization of power not within the contemplation of the makers of 
the American constitutions. We think where any such forced tax- 
ation is resisted by the municipal organization, it will be very diffi- 
cult to defend it as a proper exercise of legislative authority in a 
government where power is distributed on the principles which 
prevail here. 

Legislative Control of Corporate Property. 

The legislative power of the State controls and disposes of the 
property of the State. How far it may also control and dispose 
of the property of those agencies of government which it has cre- 
ated and endowed with corporate powers is a question which hap- 
pily there has been very little occasion to discuss in the courts. 
Being created as an agency of government, it is evident that the 
municipality cannot in itself have that complete and absolute con- 
trol and power of disposition of its property which is possessed by 
natural persons and private corporations in respect to their several 
possessions. For it can hold and own property only for corporate 
purposes, and its powers are liable at any time to be so modified 
by legislation as to render the property no longer available. More- 
over, the charter rights may he altogether taken away ; and in that 
case the legislature has deprived the corporation of its property 
by depriving it of corporate capacity to hold it. And in many 
ways, while the corporation holds and enjoys property, the legislat- 
ure must possess power to interfere with its control, at least inci- 
dentally ; for the mere fact that the corporation possesses property 
cannot deprive the State of its complete authority to mould 
and change * the corporate organization, and enlarge or [* 236] 
diminish its powers, which it possessed before. But whether 
the State can directly intervene and take away the corporate prop- 
erty, or convert it to other uses than those for which it was pro- 
cured, or whether, on repealing a charter of incorporation, it can 

[267] 



* 236 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

take to itself the corporate property, and dispose of it at its dis- 
cretion, are different questions from any raised by the indirect and 
incidental interference referred to. 

In the leading case, in which it was decided by the Supreme 
Court of the United States that a private charter of incorpora- 
tion, granted by a State, was a contract between the State and 
the corporators, not subject to modification or repeal, except in 
pursuance of a -right expressly reserved, but that the charter of a 
municipal corporation was not such a contract, it was at the same 
time declared, as the opinion of the judges, that the legislature 
could not deprive such municipal corporations of their vested 
rights in property. " It may be admitted," says one of the judges, 
" that corporations for mere public government, such as towns, 
cities, and counties, may in many respects be subject to legisla- 
tive control. But it will hardly be contended, that even in respect 
to such corporations the legislative power is so transcendent that 
it may, at its will, take away the private property of the corpo- 
ration, or change the uses of its private funds acquired under the 
public faith. Can the legislature confiscate to its own use the pri- 
vate funds which a municipal corporation holds under its charter, 
without any default or consent of the corporators ? If a mu- 
nicipal corporation be capable of holding devises and legacies 
to charitable uses, as many municipal corporations are, does the 
legislature, under our forms of limited government, possess the 
authority to seize upon those funds and appropriate them to other 
uses, at its own arbitrary pleasure, against the will of the donors 
and donees ? From the very nature of our government, the pub- 
lic faith is pledged the other way, and that pledge constitutes 
a valid compact ; and that compact is subject only to judicial 
inquiry, construction, and abrogation." : " The government has 
no power to revoke a grant, even of its own funds, when given to 
a private person or corporation for special uses. It cannot recall 

its own endowments, granted to any hospital or college, or 
[* 237] city or town', for the use of such corporations. * The only 

authority remaining to the government is judicial, to ascer- 
tain the validity of the grant, to enforce its proper uses, to sup- 
press frauds, and, if the uses are charitable, to secure their regular 

1 Story, J., in Dartmouth College v. Woodward, 4 Wheat. 694, 695. 

[ 268 ] 



OH. Till.] THE GRADES OF MUNICIPAL GOVERNMENT. * 237 

administration through the means of equitable tribunals, in cases 
where there would otherwise be a failure of justice." x 

" In respect to public corporations," says another judge, 
" which exist only for public purposes, such as towns, cities, &c, 
the legislature may, under proper limitations, change, modify, 
enlarge, or restrain them, securing, however, the property for the 
use of those for whom and at whose expense it was purchased." 2 
These views had been acted upon by the same court in preceding 
cases. 3 They draw a distinction between the political rights and 
privileges conferred on corporations, and which are not vested 
rights in any sense implying constitutional permanency, and 
such rights in property as the corporation acquires, and which 
in the view of these decisions are protected by the same reasons 
which shield similar rights in individuals. 4 

When the municipal divisions of the territory of the State are 
changed in their boundaries, two or more consolidated in one, 
or one subdivided, it is conceded that the legislature possesses 
the power to make such disposition of the corporate property as 
natural equity would require in view of the altered condition of 
things. The fact that a portion of the citizens, before entitled to 
the benefits springing from the use of specific property for public 
purposes, will now be deprived of that benefit, cannot affect the 
validity of the legislative act, which is supposed in some other 

1 Storij, J., in Dartmouth College v. Woodward, 4 Wheat. 698. 

2 Washington, J., Dartmouth College v. Woodward, 4 Wheat. 663. 

3 Terrett v. Taylor, 9 Cranch, 43 ; Town of Pawlet v. Clark, ib. 292. See 
also State v. Haben, 22 Wis. 660, referred to, ante, 230-31 note. In People v. 
Common Council of Detroit, Sup. Court of Michigan, Oct. Term, 1873, this sub- 
ject was largely considered, and the court denied the right of the State to compel 
a municipal corporation to contract a debt for a mere local object; for example, 
a city park. 

4 "It is an unsound and even absurd proposition that political power conferred 
by the legislature can become a vested right, as against the government, in any 
individual or body of men. It is repugnant to the genius of our institutions, 
and the spirit and meaning of the Constitution ; for by that fundamental law, all 
political rights not there denned and taken out of the exercise of legislative dis- 
cretion were intended to be left subject to its regulation. If corporations can 
set up a vested right as against the government to the exercise of this species of 
power, because it has been conferred upon them by the bounty of the legislature, 
so may any and every officer under the government do the same." Nelson, J., in 
People v. Morris, 13 Wend. 331. And see Bristol v. New Chester, 3 N. H. 532 ; 
Benson v. Mayor, &c, of New York, 10 Barb. 244. 

[269] 



* 237 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

way to compensate them for the incidental loss. 1 And in 
[* 238] many * other cases the legislature properly exercises a 
similar power of control in respect to the corporate prop- 
erty, and may direct its partition and appropriation, in order to 
accommodate most justly and effectually, in view of new circum- 
stances, the purposes for which it was acquired. 

The rule upon the subject we take to be this : when corporate 
powers are conferred, there is an implied compact between the 
State and the corporators that the property which they are 
given the capacity to acquire for corporate purposes under their 
charter shall not be taken from them and appropriated to other 
uses. 2 If the State grants property to the corporation, the grant 
is an executed contract, which cannot be revoked. The rights 
acquired, either by such grants or by any other legitimate mode 
in which such a corporation can acquire property, are vested 
rights, and cannot be taken away. Nevertheless if the corporate 
powers should be repealed, the corporate ownership would neces- 
sarily cease, and even when not repealed, a modification of those 
powers, or a change in corporate bounds, might seriously affect, if 
not altogether divest, the rights of individual corporators, so far 
as they can be said to have any rights in public property. And 
in other ways, incidentally as well as by direct intervention, the 
State may exercise authority and control over the disposition 
and use of corporate property, according to the legislative view of 
what is proper for the public interest and just to the corporators, 
subject only — as we think — to this restriction, that the purpose 
for which the property was originally acquired shall be kept in 
view, so far as the circumstances will admit, in any disposition 
that may be made of it. 3 

1 Bristol v. New Chester, 3 N. H. 533. And see ante, 232-234, notes. 

2 If land is dedicated as a public square, and accepted as such, a law devoting 
it to other uses is void, because violating the obligation of contracts. Warren 
v. Lyons City, 22 Iowa, 351. As there was no attempt in that case to appro- 
priate the land to such other uses under the right of eminent domain, the ques- 
tion of the power to do so was not considered. 

3 " That the State may make a contract with, or a grant to, a public municipal 
corporation, which it could not subsequently impair or resume, is not denied ; but 
in such a case the corporation is to be regarded as a private company. A grant 
may be made to a public corporation for purposes of private advantage ; and 
although the public may also derive a common benefit therefrom, yet the corpora- 
tion stands on the same footing, as respects such grant, as would any body of per- 

[270] 



OIH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 239 

* This restriction is not the less applicable where corpo- [* 239] 
rate powers are abolished than it is in other cases ; and 

sons upon whom like privileges were conferred. Public or municipal corporations, 
however, which exist only for public purposes, and possess no powers except such 
as are bestowed upon them for public political purposes, are subject at all times to 
the control of the legislature, which may alter, modify, or abolish them at pleas- 
ure." Trumbull, J., in Richland County v. Lawrence County, 12 111. 8. " Pub- 
lic corporations are but parts of the machinery employed in carrying on the 
affairs of the State ; and they are subject to be changed, modified, or destroyed, 
as the exigencies of the public may demand. The State may exercise a general 
superintendence and control over them and their rights and effects, so that their 
property is not diverted from the uses and objects for which it was given or pur- 
chased." Trustees of Schools v. Tatman, 13 111. 30, per Treat, Ch. J. And see 
Harrison v. Bridgeton, 16 Mass. 16 ; Montpelier v. East Montpelier, 27 Vt. 704 ; 
Same t>. Same, 29 Vt. 19 ; Benson v. Mayor, &c, of New York, 10 Barb. 223. See 
also City of Louisville v. University, 15 B. Monr. 642. In State v. St. Louis County 
Court, 31 Mo. 572, the following remarks are made by the court, in considering 
the cause shown by the county in answer to an application to compel it to meet 
a requisition for the police board of St. Louis : " As to the second cause shown' 
in the return, it is understood to mean, not that there is in fact no money in the 
treasury to pay this requisition, but that as a matter of law all the money which 
is in the treasury was collected for specific purposes from which it cannot be 
diverted. The specific purposes for which the money was collected were those 
heretofore directed by the legislature ; and this act, being a later expression of the 
will of the legislature, controls the subject, and so far as it conflicts with previous 
acts repeals them. The county is not a private corporation, but an agency of 
the State government; and though as a public corporation it holds property, such 
holding is subject to a large extent to the will of the legislature. Whilst the 
legislature cannot take away from a county its property, it has full power to 
direct the mode in which the property shall be used for the benefit of the county." 
Compare People v. Mahaney, 13 Mich. 433. In Darlington v. New York, 31 
N. Y. 161, the complete control of the legislature over the corporate property 
of cities was asserted, and it was held competent to subject the city to liability for 
property destroyed by a riot. It will be observed that the strong expression of 
legislative power is generally to be found in cases where the thing actually done 
was clearly and unquestionably competent. In Payne v. Treadwell, 16 Cal. 233, 
this language is used : " The agents of the corporation can sell or dispose of the 
property of the corporation only in the way and according to the order of the 
legislature ; and therefore the legislature may by law operating immediately upon 
the subject dispose of this property, or give effect to any previous disposition or 
attempted disposition. The property itself is a trust, and the legislature is the 
prime and controlling power, managing and directing the use, disposition, and 
direction of it." Quoted and approved in San Francisco v. Canavan, 42 Cal. 
558. These strong and general expressions should be compared with what is said 
in Grogan v. San Francisco, 18 Cal. 590, in which the right of municipal corpo- 
rations to constitutional protection in their property is asserted fully. The same 

[ 271 ] 



* 239 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

whatever might be the nature of the public property which the 
corporation had acquired, and whatever the purpose of the acqui- 
sition, the legislature, when by taking away the corporate authority 
it became vested with the control of the property, would be under 
obligation to dispose of it in such manner as to give the original 
corporators the benefit thereof, by putting it to the use designed, 
if still practicable, or to some kindred or equally beneficial use 
having reference to the altered condition of things. The obliga- 
tion is one which, from the very nature of the case, must rest for 
its enforcement in great measure upon the legislative good faith 
and sense of justice ; and it could only be in those cases where 
there had been a clear disregard of the rights of the original cor- 
porators, in the use attempted to be made of the property, that 
relief could be had through judicial action. 

No such restriction, however, can rest upon the legislature in 
regard to the rights and privileges which the State grants to 
municipal corporations in the nature of franchises, and which are 
granted only as aids or conveniences to the municipality in effect- 
ing the purposes of its incorporation. These, like the corporate 
powers, must be understood to be granted during pleasure. 1 

right is asserted in People v. Bacheller, lately decided in tbe Court of Appeals 
of New York ; People v. Mayor, &c., of Chicago, 51 111. 17 ; People v. Tappan, 
29 Wis. 664 ; People v. Hurlbut, 24 Mich. 44, and very many others. See 
Dillon, Mun. Corp. § 39 et seq., and cases referred to in notes. And see Hewison 
V. New Haven, 37 Conn. 483, as to the distinction between the public or govern- 
mental character of municipal corporations, and their private character as re- 
spects the ownership and management of their own property. 

1 East Hartford v. Hartford Bridge Co., 10 How. 535. On this subject, see 
c. 9, post. The case of Trustees of Aberdeen Academy v. Mayor, &c, of Aber- 
deen, 13 S. & M. 645, appears to be contra. By the charter of the town of 
Aberdeen in 1837, the legislature granted to it the sole power to grant licenses 
to sell vinous and spirituous liquors within the corporate limits thereof, and to 
appropriate the money arising therefrom to city purposes. In 1S48 an act was 
passed giving these moneys to the Aberdeen Female. Academy. The act was 
held void, on the ground that the original grant was of a franchise which consti- 
tuted property, and it could not be transferred to another, though it might be 
repealed. The case cites Bailey v. Mayor, &c, 3 Hill, 541, and St. Louis v. Rus- 
sell, 9 Mo. 507, which seem to have little relevancy. Also, 4 Wheat. 663, 698, 
699 ; and 2 Kent, 305, note, for the general rule protecting municipal corpora- 
tions in their vested rights to property. The case of Benson v. Mayor, &c, of 
New York, 10 Barb. 223, also holds the grant of a ferry franchise to a municipal 
corporation to be irrevocable, but the authorities generally will not sustain this 
view. See post, p. 283, and note. 

T 272 ] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 240 



* Toivns and Counties. [* 240] 

Thus far we have been considering general rules, applicable 
to all classes of municipal organizations possessed of corporate 
powers, and by which these powers may be measured, or the 
duties which they impose defined. In regard to some of these 
organizations, however, there are other and peculiar rules which 
require separate mention. Some of them are so feebly endowed 
with corporate life, and so much hampered, controlled, and directed 
in the exercise of the functions which are conferred upon them, 
that they are sometimes spoken of as nondescript in character, and 
as occupying a position somewhere between that of a corporation 
and a mere voluntary association of citizens. Counties, townships, 
school districts, and road districts do not usually possess corporate 
powers under special charters ; but they exist under general laws 
of the State, which apportion the territory of the State into polit- 
ical divisions for convenience of government, and require of the 
people residing within those divisions the performance of certain 
public duties as a part of the machinery of the State ; and, in 
order that they may be able to perform these duties, vest them 
with certain corporate powers. Whether they shall assume those 
duties or exercise those powers, the people of the political divisions 
are not allowed the privilege of choice ; the legislature assumes this 
division of the State to be essential in republican government, and 
the duties are imposed as a part of the proper and necessary burden 
which the citizens must bear in maintaining and perpetuating 
constitutional liberty. 1 Usually their functions are wholly of a 
public nature, and there is no room to imply any contract between 
them and the State, in their organization as corporate bodies, ex- 
cept that which springs from the ordinary rules of good faith, and 
which requires that the property they shall acquire, by local taxation 
or otherwise, for the purposes of their organization, shall 
not be seized by the State, and appropriated * in other [* 241] 
ways. They are, therefore, sometimes called quasi corpo- 
rations, 2 to distinguish them from the corporations in general, 

1 Granger v. Pulaski County, 26 Ark. 37 ; Scales v. Chatahoochee County, 
41 Geo. 225. 

2 Riddle v. Proprietors, &c., 7 Mass. 186, 187 ; School District v. Wood, 13 
Mass. 192 ; Adams v. Wiscasset Bank, 1 Greenl. 361 ; Denton v. Jackson, 2 

18 [ 273 ] 



* 241 CONSTITUTIONAL LIMITATIONS. [CH. VIT',. 

which possess more completely the functions of an artificial entity. 
Chief Justice Parker, of Massachusetts, in speaking of school dis- 
tricts, has said : " That they are not bodies politic and corporate, 
with the general powers of corporations, must be admitted ; and 
the reasoning advanced to show their defect of power is conclusive. 
The same may be said of towns and other municipal societies ; 
which although recognized by various statutes, and by immemo- 
rial usage, as persons or aggregate corporations, with precise duties 
which may be enforced, and privileges which may be maintained 
by suits at law, yet are deficient in many of the powers incident to 
the general character of corporations. They may be considered, 
under our institutions, as quasi corporations, with limited powers, 
co-extensive with the duties imposed upon them by statute or usage, 
but restrained from the general use of authority which belongs to 
these metaphysical persons by the common law. The same may 
be said of all the numerous corporations which have been from time 
to time created by various acts of the legislature ; all of them 
enjoying the power which is expressly bestowed upon them, and 
perhaps, in all instances where the act is silent, possessing, by 
necessary implication, the authority which is requisite to execute 
the purposes of their creation." " It will not do to apply the strict 
principles of law respecting corporations in all cases to these 
aggregate bodies which are created by statute in this Common- 
wealth. By the several statutes which have been passed respecting 
school districts, it is manifest that the legislature has supposed 
that a division of towns, for the purpose of maintaining schools, will 
promote the important object of general education ; and this valua- 
ble object of legislative care seems to require, in construing their 
acts, that a liberal view should be had to the end to be effected." 1 
Following out this view, the courts of the New England States have 
held, that when judgments are recovered against towns, parishes, 

and school districts, any of the property of private owners 
[* 242] within * the municipal division is liable to be taken for 

their discharge. The reasons for this doctrine, and the 
custom upon which it is founded, are thus stated by the Supreme 
Court of Connecticut : — 

Johns. Ch. 325; Beardsley v. Smith, 16 Conn. 367; Eastman o. Meredith, 36 
N. H. 296; Hopple v. Brown, 13 Ohio, N. s. 311; Commissioners of Hamilton 
Co. v. Mighels, 7 Ohio, n. s. 109 ; Ray County v. Bentley, 49 Mo. 236. 
1 School District v. Wood, 13 Mass. 192. 

[274] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 242 

" We know that the relation in which the members of munic- 
ipal corporations in this State have been supposed to stand, in 
respect to the corporation itself, as well as to its creditors, has 
elsewhere been considered in some respects peculiar. We have 
treated them, for some purposes, as parties to corporate proceed- 
ings, and their individuality has not been considered as merged in 
their corporate connection. Though corporators, they have been 
holden to be parties to suits by or against the corporation, and 
individually liable for its debts. Heretofore this has not been 
doubted as to the inhabitants of towns, located ecclesiastical 
societies, and school districts. 

" Prom a recurrence to a history of the law on this subject, we 
are persuaded that the principle and usage here recognized and 
followed, in regard to the liability of the inhabitants of towns and 
communities, were very early adopted by our ancestors. And 
whether they were considered as a part of the common law of 
England, or originated here, as necessary to our state of society, 
it is not very material to inquire. We think, however, that the 
principle is not of domestic origin, but to some extent was 
operative and applied in the mother country, especially in cases 
where a statute fixed a liability upon a municipality which had 
no corporate funds. The same reason and necessity for the appli- 
cation of such a principle and practice existed in both countries. 
Such corporations are of a public and political character ; they 
exercise a portion of the governing power of the State. Statutes 
impose upon them important public duties. In the performance 
of these, they must contract debts and liabilities, which can only 
be discharged by a resort to individuals, either by taxation or 
execution. Taxation, in most cases, can only be the result of the 
voluntary action of the corporation, dependent upon the contingent 
will of the majority of the corporators, and upon their tardy and 
uncertain action. It affords no security to creditors, because they 
have no power over it. Such reasons as these probably operated 
with our ancestors in adopting the more efficient and certain rem- 
edy by execution, which has been resorted to in the present case, 
and which they had seen to some extent in operation in the country 
whose laws were their inheritance. 

* " The plaintiff would apply to these municipal or [* 248] 
quasi corporations the close principles applicable to private 
corporations. But inasmuch as they are not, strictly speaking, 

[275] 



* 243 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

corporations, but only municipal bodies, without pecuniary funds, 
it will not do to apply to them literally, and in all cases, the law of 
corporations. 1 

" The individual liability of the members of quasi corporations, 
though not expressly adjudged, was very distinctly recognized in 
the case of Russell v. The Men of Devon. 2 It was alluded to as a 
known principle in the case of the Attorney-General v. The City of 
Exeter, 3 applicable as well to cities as to hundreds and parishes. 
That the rated inhabitants of an English parish are considered as 
the real parties to suits against the parish is now supposed to be 
well settled ; and so it was decided in the case of The King v. The 
Inhabitants of Woburn, 4 and The King v. The Inhabitants of Hard- 
wick. 5 And, in support of this principle, reference was made to 
the form of the proceedings ; as that they are entitled ' against the 
inhabitants,' <fec. 

" In the State of Massachusetts, from whose early institutions 
we have borrowed many valuable specimens, the individual re- 
sponsibility of the inhabitants of towns for town debts has long 
been established. Distinguished counsel in the case of the Mer- 
chants Bank v. Cook, referring to municipal bodies, say : ' For a 
century past the practical construction of the bar has been that, in 
an action by or against a corporation, a member of the corpo- 
ration is a party in the suit.' In several other cases in that State 
the same principle is repeated. In the case of Riddle v. The Pro- 
prietors of the . Locks and Canals on Merrimack River, 7 Parsons, 
Ch. J., in an allusion to this private responsibility of corporators, 
remarks : ' And the sound reason is, that having no corporate 
fund, and no legal means of obtaining one, each corporator is 
liable to satisfy any judgment obtained against the corporation.' 
So in Brewer v. Inhabitants of New Gloucester, 8 the court say : 
' As the law provides that, when judgment is recovered against the 
inhabitants of a town, execution may be levied upon the property 
of any inhabitant, each inhabitant must be considered as a party.' 
In the case before referred to of the Merchants Bank v. 
[* 24 i] Cook, * Parker, Ch. J., expresses the opinion of the court 
upon this point thus : ' Towns, parishes, precincts, &c, 

1 School District v. Wood, 13 Mass. 192. 2 2 Term Rep. 660. 

3 2 Russ. 45. 4 10 East, 395. 6 11 East, 577. 

6 4 Pick. 405. • 7 7 Mass. 187. s 14 Mass. 216. 

[276] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNBIENT. * 244 

are but a collection of individuals, with certain corporate powers 
for political and civil purposes, without any corporate fund, from 
which a judgment can be satisfied ; but each member of the com- 
munity is liable, in his person and estate, to the execution which 
may issue against the body ; each individual, therefore, may be 
well thought to be a 'party to a suit brought against them by their 
collective name. In regard to banks, turnpikes, and other corpo- 
rations, the case is different.' The counsel concerned in the case 
of Mower v. Leicester, 1 without contradiction, speak of this prac- 
tice of subjecting individuals as one of daily occurrence. The law 
on this subject was very much considered in the case of Chase v. 
The Merrimack Bank, 2 and was applied and enforced against the 
members of a territorial parish. ' The question is,' say the court, 
' whether, on an execution against a town or parish, the body or 
estate of any inhabitant may be lawfully taken to satisfy it. This 
question seems to have been settled in the affirmative by a series 
of decisions, and ought no longer to be considered as an open 
question.' The State of Maine, when separated from Massachu- 
setts, retained most of its laws and usages, as they had been 
recognized in the parent State ; and, among others, the one in 
question. In Adams v. Wiscasset Bank, 3 Mellen, Gh. J., says: 
' It is well known that all judgments against quasi corporations 
may be satisfied out of the property of any individual inhabitant.' 

" The courts of this State, from a time beyond the memory of 
any living lawyer, have sanctioned and carried out this usage, as 
one of common-law obligation ; and it has been applied, not to 
towns only, but also, by legal analogy, to territorial ecclesiastical 
societies and school districts. The forms of our process against 
these communities have always corresponded with this view of the 
law. The writs have issued against the inhabitants of towns, 
societies, and districts as parties. As early in the history of our 
jurisprudence as 1805, a statute was enacted authorizing com- 
munities, such as towns, societies, Ac, to prosecute and defend 
suits, and for this purpose to appear, either by themselves, agents, 
or attorneys. If the inhabitants were not then considered as 
parties individually, and liable to the consequences of judgments 
against such communities as parties, there would have 
been a glaring * impropriety in permitting them to appear [* 245J 

1 9 Mass. 247. 2 19 Pick. 564.' 3 1 Greenl. 361. 

[277] 



* 245 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

and defend by themselves ; but, if parties, such a right was neces- 
sary and indispensable. Of course this privilege has been and 
may be exercised. 1 

" Our statute providing for the collection of taxes enacts that 
the treasurer of the State shall direct his warrant to the collectors 
of the State tax in the several towns. If neither this nor the fur- 
ther proceedings against the collectors and the selectmen authorized 
by the statute shall enforce the collection of the tax, the law directs 
that then the treasurer shall issue .his execution against the inhab- 
itants of such town. Such an execution may be levied upon the 
estate of the inhabitants ; and this provision of the law was not 
considered as introducing a new principle, or enforcing a novel 
remedy, but as being only in conformity with the well-known usage 
in other cases. The levy of an execution under this statute pro- 
duced the case of Beers v. Botsford. 2 There the execution, which 
had been issued against the town of Newtown by the treasurer of 
the State, had been levied upon the property of the plaintiff, an 
inhabitant of that town, and he had thus been compelled to pay the 
balance of a State tax due from the town. He sued the town of 
Newtown for the recovery of the money so paid by him. The most 
distinguished professional gentlemen in the State were engaged as 
counsel in that case ; and it did not occur, either to them or to the 
court, that the plaintiff's property had been taken without right: 
on the contrary, the case proceeded throughout on the conceded 
principle of our common law, that the levy was properly made 
upon the estate of the plaintiff. And without this the plaintiff 
could not have recovered of the town, but must have resorted to 
his action against the officer for his illegal and void levy. In Ful- 
ler v. Hampton, 3 Peters, J., remarked that, if costs are recovered 
against a town, the writ of execution to collect them must have 
been issued against the property of the inhabitants of the town ; and 
this is the invariable practice. The case of Atwater?;. Woodbridge 4 
also grew out of this ancient usage. The ecclesiastical society of 
Bethany had been taxed by the town of Woodbridge for its mon- 
eys at interest, and the warrant for the collection of the tax had 
been levied upon the property of the plaintiff, and the tax had 
thus been collected of him, who was an inhabitant of the located 



1 Swift's System, 227. 2 3 Day, 159. 

5 Conn. 417. 4 6 Conn. 223. 



[278] 



CH. VIII.] THE GEADES OF MUNICIPAL GOVERNMENT. * 245 

society of Bethany. Brainerd, J., who drew up the * opin- [* 246] 
ion of the court, referring to this proceeding, said : ' This 
practice, with regard to towns, has prevailed in New England, so 
far as I have been able to investigate the subject, from an early 
period, — from its first settlement, — a practice brought by our 
forefathers from England, which had there obtained in corporations 
similar to the towns incorporated in New England.' It will here 
be seen that the principle is considered as applicable to territorial 
societies as to towns, because the object to be obtained was the 
same in both, — ' that the town or society should be brought to a 
sense of duty, and make provision for payment and indemnity ; ' 
a very good reason, and very applicable to the case we are consid- 
ering. 

" The law on this subject was more distinctly brought out and 
considered by this court in the late case of McCloud v. Selby, 1 in 
which this well-known practice, as it had been applied to towns 
and ecclesiastical societies, was extended and sanctioned as to 
school districts ; ' else it would be breaking in upon the analogies 
of the law.' ' They are communities for different purposes, but 
essentially of the same character.' And no doubt can remain, 
since the decision of this case, but that the real principle, in all of 
the cases on this subject, has been, and is, that the inhabitants of 
quasi corporations are parties individually, as well as in their cor- 
porate capacities, to all the actions in which the corporation is a 
party. And to the same effect is the language of the elementary 
writers." 2 

So far as this rule rests upon the reason that these organizations 
have no common fund, and that no other mode exists l>y which 
demands against them can be enforced, it cannot be considered 
applicable in those States where express provision is made by law 
for compulsory taxation to satisfy any judgment recovered against 
the corporate body, — the duty of levying the tax being imposed 
upon some officer, who may be compelled by mandamus to perform 

1 10 Conn. 390-395. 

2 Beardsley v. Smith, 16 Conn. 375, citing 2 Kent, 221 ; Angell and Ames on 
Corp. 374 ; 1 Swift's Dig. 72, 794 ; 5 Dane's Abr. 158. And see Dillon, Mun. 
Corp. c. 1. It was held competent in the above case to extend the same principle 
to incorporated cities ; and an act of the legislature permitting the enforcement of 
city debts in the same mode was sustained. For a more recent case in Massa- 
chusetts than these cited, see Gaskill v. Dudley, 6 Met. 551. 

[279] 



* 246 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

it. Nor has any usage, so far as we are aware, grown up in any 
of the newer States, like that which had so early an origin 
[* 247] in New England. * More just, convenient, and inexpen- 
sive modes of enforcing such demands have been estab- 
lished by statute, and the rules concerning them are conformed 
more closely to those which are established for other corporations. 
On the other hand, it is settled that these corporations are not 
liable to a private action, at the suit of a party injured by a neglect 
of its officers to perform a corporate duty, unless such action is 
given by statute. This doctrine has been frequently applied where 
suits have been brought against towns, or the highway officers of 
towns, to recover for damages sustained in consequence of defects 
in the public ways. The common law gives no such action, and it 
is therefore not sustainable at all, unless given by statute. A dis- 
tinction is made between those corporations which are created as 
exceptions, and receive special grants of power for the peculiar 
convenience and benefit of the corporators, on the one hand, and 
the incorporated inhabitants of a district, who are by statute 
invested with particular powers, without their consent, on the other. 
In the latter case, the State may impose corporate duties, and com- 
pel their performance, under penalties ; but the corporators, who 
are made such whether they will or no, cannot be considered in 
the light of persons who have voluntarily, and for a consideration, 
assumed obligations, so as to owe a duty to every person interested 
in the performance. 1 

1 Mower v. Leicester, 9 Mass. 250; Bartlett v. Crozier, 17 Johns. 439; 
Farnmn v. Concord, 2 N. H. 392; Adams v. Wiscasset Bank, 1 Greenl. 361; 
Baxter v. Winooski Turnpike, 22 Vt. 123; Beardsley v. Smith, 16 Conn. 375; 
Chidsey v. Canton, 17 Conn. 475; Young v. Commissioners, &c, 2N. & McC. 
537; Commissioners of Highways v. Martin, 4 Mich. 557; Morey v. Newfane, 
8 Barb. 645; Lorillard v. Monroe, 11 N. Y. 392; Galen v. Clyde and Rose 
Plank Road Co., 27 Barb. 543; Reardon v. St. Louis, 36 Mo. 555; Sherburne 
v. Yuba Co., 21 Cal. 113 ; State v. County of Hudson, 1 Vroom, 137; Hedges 
v. Madison Co., 1 Gilm. 567 ; Granger v. Pulaski Co., 26 Ark. 37 ; Weightman v. 
Washington, 1 Black, 39 ; Ball v. Winchester, 32 N. H. 443 ; Eastman v. Mere- 
dith, 36 N. H. 284 ; Waltham v. Kemper, 55 Rl. 346 ; Sutton v. Board, 41 Miss. 
236 ; Cooley v. Freeholders, 3 Dutch. 415. These cases follow the leading Eng- 
lish case of Russell v. Men of Devon, 2 T. R. 667. In the very carefully con- 
sidered case of Eastman v. Meredith, 36 N. H. 284, it was decided, on the 
principle above stated, that if a building erected by a town for a town-house is 
so imperfectly constructed that the flooring gives way at the annual town-meeting, 
and an inhabitant and legal voter, in attendance on the meeting, receives thereby 

[280] 



CH. VIII.] THE GRADES OP MUNICIPAL GOVERNMENT. * 247 

The reason which exempts these public bodies from liability to 
private actions, based upon neglect to perform public obligations, 
does not apply to villages, boroughs, and cities, which 
accept special * charters from the State. The grant of the [* 248] 
corporate franchise, in these cases, is usually made only at 
the request of the citizens to be incorporated, and it is justly 
assumed that it confers what to them is a valuable privilege. This 
privilege is a consideration for the duties which the charter imposes. 
Larger powers of self-government are given than are confided to 
towns or counties ; larger privileges in the acquisition and control 
of corporate property ; and special authority is conferred to make 
use of the public highways for the special and peculiar convenience 
of the citizens of the municipality in various modes not permissible 
elsewhere. The grant by the State to the municipality of a portion 
of its sovereign powers, and their acceptance for these beneficial 
purposes, is regarded as raising an implied promise, on the part of 
the corporation, to perform the corporate duties ; and this implied 
contract, made with the sovereign power, enures to the benefit of 
every individual interested in its performance. 1 In this respect 

a bodily injury, he cannot maintain an action against the town to recover dam- 
ages for this injury. The case is carefully distinguished from those where cor- 
porations have been held liable for the negligent use of their own property by 
means of which others are injured. The familiar maxim that one shall so use 
his own as not to injure that which belongs to another is of general application. 

1 Selde.a, J., in Weet v. Brockport, 16 N. Y. 161, note. See also Mayor of 
Lyme t>. Turner, Cowp. 86 ; Henley v. Lyme Regis, 5 Bing. 91 ; Same case in 
error, 3 B. & Adol. 77, and 1 Bing. N. C. 222; Mayor, &c, of New York v. 
Furze, 3 Hill, 612 ; Rochester White Lead Co. v. Rochester, 3 N. Y. 464 ; Hut- 
son v. Mayor, &c, of New York, 9 N. Y. 163; Conrad v. Ithaca, 16 N. Y. 158; 
Mills v. Brooklyn, 32 N. Y. 489 ; Barton v. Syracuse, 36 N. Y. 54 ; Lee v. Sandy 
Hill, 40 N. Y. 442; Clark v, Washington, 12 Wheat. 40; Riddle v. Proprietors 
of Locks, &c, 7 Mass. 183 ; Bigelow v. Inhabitants of Randolph, 14 Gray, 541 ; 
Mears v. Commissioners of Wilmington, 9 Ired. 73 ; Browning v. Springfield, 17 
111. 143 ; Bloomington v. Bay, 42 111. 503 ; Springfield v. LeClaire, 49 111. 476 ; 
Peru v. French, 55 111. 318 ; Pittsburg v. Grier, 22 Penn. St. 54 ; Jones v. New 
Haven, 34 Conn. 1 ; Stackhouse v . Lafayette, 26 Ind. 17 ; Brinkmeyer v. Evans- 
ville, 29 Ind. 187 ; Sawyer v. Corse, 17 Grat. 241 ; Richmond v. Long, ib. 375 ; 
Blake v. St. Louis, 40 Mo. 569; Scott v. Mayor, &c, of Manchester, 37 Eng. 
L. & Eq. 495; Smoot v. Wetumpka, 24 Ala. 112; Detroit v. Corey, 9 Mich. 
165 ; Rusch v. Davenport, 6 Iowa, 443 ; Commissioners v. Duckett, 20 Md. 
468; Covington v. Bryant, 7 Bush, 248; Weightman v. Washington, 1 Black, 
41 ; Chicago v. Robbins, 2 Black, 418 ; Nebraska v. Campbell, ib. 590. In the 
recent case of Detroit v. Blackeby, 21 Mich. 84, this whole subject is considered 

[281] 



* 248 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

these corporations are looked upon as occupying the same position 
as private corporations, which, having accepted a valuable franchise, 
on condition of the performance of certain public duties, are held 
to contract by the acceptance for the performance of these duties. 
In the case of public corpprations, however, the liability is contin- 
gent on the law affording the means of performing the duty, which, 
in some cases, by reason of restrictions upon the power of taxation, 
they might not possess. But assuming the corporation to be clothed 
with sufficient power by the charter to that end, the liability of a 
city or village, vested with control of its streets, for any neglect to 
keep them in repair, or for any improper construction, has been 
determined in many cases. 1 And a similar liability would exist in 
other cases where the same reasons would be applicable. 

at length ; and the court (one judge dissenting) deny the soundness of the prin- 
ciple stated in the text, and hold that municipal corporations existing under spe- 
cial charters are not liable to individuals for injuries caused by neglect to perform 
corporate duties, unless expressly made so by statute. This case is referred to 
and dissented from in Waltham v. Kemper, 55 111. 347. In Murtaugh v. St. 
Louis, 44 Mo. 480, Currier, J., says: "The general result of the adjudications 
seems to be this : When the officer or servant of a municipal corporation is in 
the exercise of a power conferred upon the corporation for its private benefit, 
and injury ensues from the negligence or misfeasance of such officer or servant, 
the corporation is liable, as in the case of private corporations or parties ; but 
when the acts or omissions complained of were done or omitted in the exercise 
of a corporate franchise conferred upon the corporation for the public good, and 
not for the private corporate advantage, then the corporation is not liable for 
the consequences of such acts or omissions." Citing Bailey v. New York, 
3 Hill, 531; Martin v. Brooklyn, 1 Hill, 550; Richmond v. Long's Adm'r, 17 
Grat. 375; Sherburne v. Yuba Co., 21 Cal. 113; Dargan v. Mobile, 31 Ala. 
469; Stewart v. New Orleans, 9 La. An. 461; Prother v. Lexington, 13 B. 
Monr. 559. And as to exemption from liability in the exercise or failure to 
exercise legislative authority, see mite, p. 208, and note. 

1 Weet v. Brockport. 16 N. Y. 161, note; Hickok v . Plattsburg, ib. 158; 
Morey v. Newfane, 8 Barb. 645 ; Browning v. Springfield, 17 111. 143 ; Hyatt v. 
Roudout, 44 Barb. 385; Lloyd v. Mayor, &c, of New York, 5 N. Y. 369; 
Rusch v. Davenport, 6 Iowa, 443. And see Dillon, Mun. Corp. c. 18, and the 
cases cited in the preceding note. The cases of Weet v. Brockport, and Hickok 

Plattsburg, were criticised by Mr. Justice Marvin, in the case of Peck v. 
Batavia, 32 Barb. 634, where, as well as in Cole v. Medina, 27 Barb. 218, he 
held that a village merely authorized to make and repair sidewalks, but not in 
terms absolutely and imperatively required to do so, had a discretion conferred 
upon it in respect to such walks, and was not responsible for a refusal to enact 
ordinances or by-laws in relation thereto ; nor, if it enacted such ordinances or 
by-laws, was it liable for damages arising from a neglect to enforce them. The 

[282 ] 



CH. VIII.] THE GRADES OP MUNICIPAL GOVERNMENT. * 249 

* But if the ground of the action is the omission by the [* 249] 
corporation to repair a defect, it would seem that notice of 
the defect should be brought home to the corporation, or to officers 
charged with some duty respecting the streets, or that facts should 
appear sufficient to show that, by proper vigilance, it must have 
been known. 1 

In regard to all those powers which are conferred upon the 
corporation, not for the benefit of the general public, but of the 
corporators, — as to construct works to supply a city with water, or 
gas-works, or sewers, and the like, — the corporation is held to a 
still more strict liability, and is made to respond in damages to the 
parties injured by the negligent manner in which the work is con- 
structed, or guarded, even though, under its charter, the agents for 
the construction are not chosen or controlled by the corporation, 
and even where the work is required by law be let to the lowest 
responsible bidder. 

In Bailey v. Mayor, &c, of New York, 2 an action was brought 
against the city by one who had been injured in his property by the 
careless construction of the Croton dam for the purpose of supply- 
ing the city with water. The work was constructed under the 
control of water commissioners, in whose appointment the city had 
no voice ; and upon this ground, among others, and also on the 
ground that the city officers were acting in a public capacity, and, 
like other public agents, not responsible for the misconduct 
of * those necessarily appointed by them, it was insisted [* 250] 
the city could not be held liable. Nelson, Ch. J., examin- 
ing the position that, " admitting the water commissioners to be 
the appointed agents of the defendants, still the latter are not 
liable, inasmuch as they were acting solely for the State in 

doctrine that a power thus conferred is discretionary does not seem consistent 
with the ruling in some of the other cases cited, and is criticised in Hyatt v. 
Rondout, 44 Barb, 392. Calling public meetings for political or philanthropic 
purposes is no part of the business of a municipal corporation, and it is not liable 
to one who, in lawfully passing by where the meeting is held, is injured by the 
discharge of a cannon fired by persons concerned in the meeting. Borland v. 
Mayor, &c, of New York, 1 Sandf. 27. 

1 Hart v. Brooklyn, 36 Barb. 226 ; Dewey v. City of Detroit, 15 Mich. 309 • 
Garrison v. New York, 5 Bosw. 497 ; MeGinity v. Mayor, &c, of New York 5 
Duer, 674 ; Decatur v. Fisher, 53 111. 407 ; Requa v. Rochester, 45 N. Y. 129 • 
Hume v. New York, 47 N. Y. 639. 

2 3 Hill, 531 ; 2 Denio, 433. 

[283 ] 



* 250 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

prosecuting the work in question, and therefore are not responsible 
for the conduct of those necessarily employed by them for that 
purpose," says : " We admit, if the defendants are to be regarded 
as occupying this relation, and are not chargeable with any want 
of diligence in the selection of agents, the conclusion contended 
for would seem to follow. They would then be entitled to all the 
immunities of public officers charged with a duty which, from its 
nature, could not be executed, without availing themselves of the 
services of others ; and the doctrine of respondeat superior does not 
apply to such cases. If a public officer authorize the doing of an 
act not within the scope of his authority, or if he be guilty of 
negligence in the discharge of duties to be performed by himself, 
he will be held responsible ; but not for the misconduct or 
malfeasance of such persons as he is obliged to employ. But this 
view cannot be maintained on the facts before us. The powers 
conferred by the several acts of the legislature, authorizing the 
execution of this great work, are not, strictly and legally speaking, 
conferred for the benefit of the public ; the grant is a special, 
private franchise, made as well for the private emolument and ad- 
vantage of the city as for public good. The State, in its sovereign 
character, has no interest in it. It owns no part of the work. The 
whole investment, under the law, and the revenue and profits to be 
derived therefrom, are a part of the private property of the city, as 
much so as the lands and houses belonging to it situate within its 
corporate limits. 

" The argument of the defendants' counsel confounds the powers 
in question with those belonging to the defendants in their charac- 
ter as a municipal or public body, — such as are granted exclusively 
for public purposes to counties, cities, towns, and villages, where 
the corporations have, if I may so speak, no private estate or in- 
terest in the grant. 

" As the powers in question have been conferred upon one of 
these public corporations, thus blending, in a measure, those con- 
ferred for private advantage and emolument with those already 
possessed for public purposes, there is some difficulty, I 
[* 251] * admit, in separating them in the mind, and properly dis- 
tinguishing the one class from the other, so as to distribute 
the responsibility attaching to the exercise of each. 

" But the distinction is quite clear and well settled, and the pro- 
cess of separation practicable. To this end, regard should be had, 
[ 284] 



CH. VIII.] THE GRADES OF MUNICIPAL GOVERNMENT. * 251 

not so much to the nature and character of the various powers con- 
ferred, as to the object and purpose of the legislature in conferring 
them. If granted for public purposes exclusively, they belong 
to the corporate body in its public, political, or municipal character. 
But, if the grant was for purposes of private advantage and emolu- 
ment, though the public may derive a common benefit therefrom, the 
corporation quo ad hoc is to be regarded as a private company. It 
stands on the same footing as would any individual or body of 
persons upon whom the like special franchises had been con- 
ferred. 1 

" Suppose the legislature, instead of the franchise in question, 
had conferred upon the defendants' banking powers, or a charter 
for a railroad leading into the city, in the usual manner in which 
such powers are conferred upon private companies, could it be 
doubted that they would hold them in the same character, and be 
subject to the same duties and liabilities ? It cannot be doubted but 
they would. These powers, in the eye of the law, would be entirely 
distinct and separate from those appertaining to the defendants as 
a municipal body. So far as related to the charter thus conferred, 
they would be regarded as a private company, and be subject to 
the responsibilities attaching to that class of institutions. The 
distinction is well stated by the Master of the Rolls, in Moodalay 
v. East India Co., 2 in answer to an objection made by counsel. 
There the plaintiff had taken a lease from the company, granting 
him permission to supply the inhabitants of Madras with tobacco 
for ten years. Before the expiration of that period, the company 
dispossessed him, and granted the privilege to another. The plain- 
tiff, preparatory to bringing an action against the company, 
filed a bill of discovery. One of the objections * taken by [* 252] 
the defendant was, that the removal of the plaintiff was . 
incident to their character as a sovereign power, the exercise of 
which could not be questioned in a bill or suit at law. The Master 
of the Rolls admitted that no suit would lie against a sovereign 
power for any thing done in that capacity ; but he denied that the 

1 Dartmouth College v. Woodward, 4 Wheat. 668, 672 ; Phillips v. Bury, 1 
Ld. Raym. 8 ; 2 T. R. 352, s. c. ; Allen v. McKeen, 1 Surnn. 297 ; People v. 
Morris," 13 Wend. 331-338 ; 2 Kent's Coin. 275 (4th ed.) ; United States Bank 
v. Planters Bank, 9 Wheat. 907 ; Clark v. Corp. of Washington, 12 ib. 40 ; 
Moodalay v. East India Co., 1 Brown's Ch. R. 469. 

2 1 Brown's Ch. R. 469. 

[285] 



* 252 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

defendants came within the rule. ' They have rights,' he observed, 
'as a sovereign power; they have also duties as individuals; if 
they enter into bonds in India, the sums secured may be recovered 
here. So in this case, as a private company, they have entered into 
a private contract, to which they must be liable.' It is upon the 
like distinction that municipal corporations, in their private char- 
acter as owners and occupiers of lands and houses, are regarded 
in the same light as individual owners and occupiers, and dealt 
with accordingly. As such, they are bound to repair bridges, high- 
ways, and churches ; are liable to poor rates ; and, in a word, to 
the discharge of any other duty or obligation to which an individ- 
ual owner would be subject." 1 

In Stoors v. City of Utica, 2 it was held that a city, owing to the 
public the duty of keeping its streets in a safe condition for travel, 
was liable to persons receiving injury from the neglect to keep 
proper lights and guards at night around an excavation which had 
been made for the construction of a sewer, notwithstanding it had 
contracted for all proper precautions with the persons executing 
the work. And in the City of Detroit v. Corey 3 the corporation 
was held liable in a similar case, notwithstanding the work was 
required by the charter to be let to the lowest bidder. Manning, 
J., in speaking to the point whether the contractors were to be con- 
sidered as the agents of the city, so that the maxim respondeat 
superior should apply, says : " It is to be observed that 
[* 253] the * power under which they acted, and which made that 
lawful which would otherwise have been unlawful, was not 

1 2 Inst. 703 ; Thursfield v. Jones, Sir T. Jones, 187 ; Rex v. Gardner, Cowp. 
79 ; Mayor of Lyme v. Turner, ib. 87 ; Henley v. Mayor of Lyme, 5 Bing. 91 ; 
1 Bing. N. C. 222, s. c. in House of Lords. See, also, Lloyd v. Mayor, &c., of 
New York, 5 N. Y. 369 ; Commissioners v. Duckett, 20 Md. 468. " The cor- 
poration of the city of New York possesses two kinds of powers, — one govern- 
mental and public, and, to the extent they are held and exercised, is clothed with 
sovereignty ; the other private, and, to the extent they are held and exercised, 
is a legal individual. The former are given and used for public purposes, the 
latter for private purposes. While in the exercise of the former, the corporation 
is a municipal government, and while in the exercise of the latter is a corj>orate, 
legal individual." Ibid, per Foot, J. See upon this point also, Western Fund 
Savings Society v. Philadelphia, 31 Penn. St. 175 ; Louisville v. Commonwealth, 
1 Duvall, 295 ; People v. Common Council of Detroit, 27 Mich, ante 230 and note. 

2 17 N. Y. 104. 

3 9 Mich. 165. Compare Mills v. Brooklyn, 32 N. Y. 489 ; Jones v. New 
Haven, 34 Conn. 1. 

[286] 



CH. VIII.] THE GRADES OP MUNICIPAL GOVERNMENT. * 253 

a power given to the city for governmental purposes, or a public 
municipal duty imposed on the city, as to keep its streets in repair, 
or the like, but a special legislative grant to the city for private 
purposes. The sewers of the city, like its works for supplying the 
city with water, are the private property of the city ; they belong 
to the city. The corporation and its corporators, the citizens, are 
alone interested in them ; the outside public or people of the State 
at large have no interest in them, as they have in the streets of the 
city, which are public highways. 

" The donee of such a power, whether the donee be an individ- 
ual or a corporation, takes it with the understanding — for such 
are the requirements of the law in the execution of the power — 
that it shall be so executed as not unnecessarily to interfere with 
the rights of the public, and that all needful and proper measures 
will be taken, in the execution of it, to guard against accidents to 
persons lawfully using the highway at the time. He is individ- 
ually bound for the performance of these obligations ; he cannot 
accept the power divested of them, or rid himself of their perform- 
ance by executing them through a third person as his agent. He 
may stipulate with the contractor for their performance, as was 
done by the city in the present case, but he cannot thereby relieve 
himself of his personal liability, or compel an injured party to look 
to his agent, instead of himself, for damages." And in answer 
to the objection that the contract was let to the lowest bidder, as 
the law required, it is shown that the provision of law to that 
effect was introduced for the benefit of the city, to protect it 
against frauds, and that it should not, therefore, relieve it from 
any liability. 1 

1 See, also, Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463 ; 
Grants. City of Brooklyn, 41 Barb. 381 ; City of Buffalo v. Holloway, 14 Barb. 
101, and 7 N. Y. 493 ; Lloyd v. Mayor, &c, of New York, 5 N. Y. 369 ; Del- 
nionioo v. Mayor, &c, of New York, 1 Sandf. 222; Barton v. Syracuse, 37 
Barb. 292; Storrs v. Utica, 17 N. Y. 104; Springfield v. LeClaire, 49 111. 476; 
Blake v. St. Louis, 40 Mo. 569 ; Baltimore v. Pendleton, 15 Md. 12 ; St. Paul 
v. Leitz, 3 Minn. 297. For further illustration of the rules of liability to which 
municipal corporations are subject for the negligent discharge of corporate duties, 
or the improper construction of corporate works, see Wallace v. Muscatine, 
4 Greene (Iowa), 373; Creal v. Keokuk, ib. 47; Cotes v. Davenport, 9 Iowa, 
227 ; Mayor v. Sheffield, 4 Wal. 189 ; Child v. Boston, 4 Allen, 41 ; Walcott v. 
Swainpscott, 1 Allen, 101 ; Buttrick v. Lowell, ib. 172 ; Munn v. Pittsburgh, 40 
Penn. St. 364; Pekin v. Newell, 26 111. 320; Weightman v. Washington, 1 

[287] 



* 254 CONSTITUTIONAL LIMITATIONS. [CH. VIII. 

[* 254] * We have not deemed it important, in considering the 
subject embraced within this chapter, to discuss the various 
questions which might be suggested in regard to the validity of the 
proceedings by which it is assumed in any case that a municipal 
corporation has become constituted. These questions are gener- 
ally questions between the corporators and the State, with which 
private individuals are regarded as having no concern. In pro- 
ceedings where the question whether a corporation exists or not 
arises collaterally, the courts will not permit its corporate charac- 
ter to be questioned, if it appear to be acting under color of law, 
and recognized by the State as such. Such a question should be 
raised by the State itself, by quo warranto or other direct proceeding. 1 
And the rule, we apprehend, would be no different, if the constitu- 
tion itself prescribed the manner of incorporation. Even in such 
a case, proof that the corporation was acting as such, under legis- 
lative action, would be sufficient evidence of right, except as against 
the State ; and private parties could not enter upon any question 
of regularity. And the State itself may justly be precluded, on the 
principle of estoppel, from raising such an objection, where there 
has been long acquiescence and recognition. 2 

Black, 39 ; Kavanaugh v. Brooklyn, 38 Barb. 232 ; Wendell v. Troy, 39 Barb. 
329 ; Mills v. Brooklyn, 32 N. Y. 489 ; Stein v. Burden, 21 Ala. 130 ; City of 
Providence v. Clapp, 17 How. 161 ; Champaign v. Patterson, 50 111. 62; Ross v. 
Madison, 1 Ind. 281; Mayor, &c, of New York v. Bailey, 2 Denio, 433; Roch- 
ester White Lead Co. v. Rochester, 3 N. Y. 463 ; Wheeler v. City of Worcester, 
10 Allen, 591 ; Burnham v. Boston, ib. 290 ; Boon v. City of Utica, 2 Barb. 104 ; 
Martin v. Mayor, &c, of Brooklyn, 1 Hill, 545 ; Howell v. Buffalo, 15 N. Y. 
512; Lacour v. Mayor, &c, of New York, 3 Duer, 406; Pittsburgh v. Grier, 
22 Penn. St. 54; Erie City v. Schwingle, ib. 384; and the numerous cases col- 
lected and classified in Dillon on Municipal Corporations. A municipal corpo- 
poration is not liable for neglect to devise and construct a proper system of 
drainage. Carr v. Northern Liberties, 35 Penn. St. 324. See ante, 208, and 
note. Cities are not liable for the careless conduct of officials in the discharge of 
duty. Dillon, §§ 774 to 778, and cases cited. 

1 State v. Carr, 5 N. H. 367; President, &c, of Mendota v. Thompson, 20 
111. 200; Hamilton v. President, &c, of Carthage, 24 111. 22. These were 
prosecutions by municipal corporations for recovery of penalties imposed by 
by-laws, and where the plea of mil tiel corporation was interposed and over- 
ruled. See, also, Kayser v. Bremen, 16 Mo. 88 ; Kettering v. Jacksonville, 50 
111. 39. 

2 In People v. Maynard, 15 Mich. 470, where the invalidity of an act organ- 
izing a county, passed several years before, was suggested on constitutional 
grounds, Campbell, J., says : " If this question had been raised immediately, we 

[288] 



CH. VIII.] THE GRADES OP MUNICIPAL GOVERNMENT. * 255 

are not prepared to say that it would have been altogether free from difficulty. 
But inasmuch as the arrangement there indicated had been acted upon for ten 
years before the recent legislation, and had been recognized as valid by all 
parties interested, it cannot now be disturbed. Even in private associations the 
acts of parties interested may often estop them from relying on legal objec- 
tions, which might have availed them if not waived. But in public affairs, where 
the people have organized themselves under color of law into the ordinary 
municipal bodies, and have gone on year after year raising taxes, making im- 
provements, and exercising their usual franchises, their rights are properly 
regarded as depending quite as much on the acquiescence as on the regularity 
of their origin, and no ex post facto inquiry can be permitted to undo their 
corporate existence. Whatever may be the rights of individuals before such 
general acquiescence, the corporate standing of the community can no longer be 
open to question. See Rumsey v. People, 19 N. Y. 41 ; and Lanning v. Car- 
penter, 20 N. Y. 474, where the effect of the invalidity of an original county 
organization is very well considered in its public and private bearings. There 
have been direct legislative recognitions of the new division on several occasions. 
The exercise of jurisdiction being notorious and open in all such cases, the State 
as well as county and town taxes being all levied under it, there is no principle 
which could justify any court, at this late day, in going back to inquire into the 
regularity of the law of 1857." A similar doctrine has been applied in support 
of the official character of persons who, without authority of law, have bee"n 
named for municipal offices by State authority, and whose action in such offices 
has been acquiesced in by the citizens or authorities of the municipality. See 
People v. Salomon, 54 111. 51 ; People v. Lothrop, 24 Mich. 235. Compare Kim- 
ball v. Alcorn, 45 Miss. 151. But such acquiescence could not make them local 
officers and representatives of the people for new and enlarged powers subse- 
quently attempted to be given by the legislature. People v. Common Council of 
Detroit, 27 Mich. Nor in respect to powers not purely local. People v. Spring- 
wells, 25 Mich. 153. 

19 [ 289 ] 



256 CONSTITUTIONAL LIMITATIONS. [CH. IX. 



[*256] * CHAPTER IX. 

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

As the government of the United States was one of enumerated 
powers, it was not deemed important by the framers of its Consti- 
tution that a bill of rights should be incorporated among its pro- 
visions. If, among the powers conferred, there was none which 
would authorize or empower the government to deprive the citizen 
of any of those fundamental rights which it is the object and the 
duty of government to protect and defend, and to insure which is 
the sole purpose of bills of rights, it was thought to be at least 
unimportant to insert negative clauses in that instrument, inhibit- 
ing the government from assuming any such powers, since the 
mere failure to confer them would leave all such powers beyond 
the sphere of its constitutional authority. And, as Mr. Hamilton 
argued, it might seem even dangerous to do so. " For why declare 
that things shall not be done which there is no power to do ? Why, 
for instance, should it be said that the liberty of the press shall 
not be restrained, when no power is given by which restrictions 
may be imposed ? I will not contend that such a provision would 
confer a regulating power ; but it is evident that it would furnish, 
to men disposed to usurp, a plausible pretence for claiming that 
power. They might urge, with a semblance of reason, that the 
Constitution ought not to be charged with the absurdity of pro- 
viding against the abuse of an authority which was not given, and 
that the provision against restraining the liberty of the press 
afforded a clear implication that a right to prescribe proper reg- 
ulations concerning it was intended to be vested in the national 
government. This may serve as a specimen of the numerous 
handles which would be given to the doctrine of constructive 
powers, by the indulgence of an injudicious zeal for bills of 
rights." 1 

1 Federalist, No. 84. 

[290] 



CH. IX.] FEDERAL PROTECTION TO PERSON AND PROPERTY. * 256 

It was also thought that bills of rights, however impor- 
tant * under a monarchical government, were of no [* 257] 
moment in a constitution of government framed by the 
people for themselves, and under which public affairs were to be 
managed by means of agencies selected by the popular choice, and 
subject to frequent change by popular action. " It has been sev- 
eral times truly remarked, that bills of rights are, in their origin, 
stipulations between kings and their subjects, abridgments of pre- 
rogative in favor of privilege, reservations of rights not surrendered 
to the prince. Such was Magna Charta, obtained by the barons, 
sword in hand, from King John. Such were the subsequent con- 
firmations of that charter by succeeding princes. Such was the 
Petition of Right, assented to by Charles the First, in the beginning 
of his reign. Such also was the Declaration of Right presented by 
the Lords and Commons to the Prince of Orange in 1688, and 
afterwards thrown into the form of an act of Parliament, called 
the Bill of Rights. It is evident, therefore, that, according to 
their primitive signification, they have no application to constitu- 
tions professedly founded upon the power of the people, and exe- 
cuted by their immediate representatives and servants. Here, in 
strictness, the people surrender nothing ; and, as they retain every 
thing, they have no need of particular reservations. ' We, the 
people of the United States, to secure the blessings of liberty to 
ourselves and our posterity, do ordain and establish this Constitu- 
tion for the United States of America.' This is a better recog- 
nition of popular rights than volumes of those aphorisms which 
make the principal figure in several of our State bills of rights, 
and which would sound much better in a treatise of ethics than 
in a constitution of government." 1 

Reasoning like this was specious, but it was not satisfactory to 
many of the leading statesmen' of that day, who believed that " the 
purposes of society do not require a surrender of all our rights 
to our ordinary governors ; that there are certain portions of right 
not necessary to enable them to carry on an effective government, 
and which experience has nevertheless proved they will be con- 
stantly encroaching on, if submitted to them; that there are also 
certain fences which experience has proved peculiarly efficacious 
against wrong, and rarely obstructive of right, which yet the 

1 Federalist, No. 84, bv Hamilton. 

[291] 



* 257 CONSTITUTIONAL LIMITATIONS. [CH. IX. 

governing powers have ever shown a disposition to weaken and 
remove." 1 And these governing powers will be no less 
[* 258] disposed * to be aggressive when chosen by majorities than 
when selected by the accident of birth, or at the will of 
privileged classes. Indeed if, during the long struggle for consti- 
tutional liberty in England, covering the whole of the seventeenth 
century, importance was justly attached to a distinct declaration 
and enumeration of individual rights on the part of the govern- 
ment, when it was still in the power of the governing authorities 
to infringe upon or to abrogate them at any time, and when, con- 
sequently, the declaration could possess only a moral force, a similar 
declaration would appear to be of even more value in the Consti- 
tution of the United States, where it would constitute authoritative 
law, and be subject to no modification or repeal, except by the 
people themselves whose rights it was designed to protect, nor even 
by them except in the manner by the Constitution provided. 2 

1 Jefferson's Works, Vol. III. 201. 

2 Mr. Jefferson sums up the objections to a bill of rights in the Constitution 
of the United States, and answers them as follows : " 1. That the rights in 
question are reserved by the manner in which the Federal powers are granted. 
Answer : A constitutive act may certainly be so formed as to need no declara- 
tion of rights. The act itself has the force of a declaration, as far as it goes; 
and if it goes to all material points, nothing more is wanting. In the draft of 
a constitution -which I had once a thought of proposing in Virginia, and printed 
afterwards, I endeavored to reach all the great objects of public liberty, and did 
not mean to add a declaration of rights. Probably the object was imperfectly 
executed ; but the deficiencies would have been supplied by others in the course 
of discussion. But in a constitutive act which leaves some precious articles un- 
noticed, and raises implications against others, a declaration of rights becomes 
necessary by way of supplement. This is the case of our new Federal Consti- 
tution. This instrument forms us into one State, as to certain objects, and gives 
us a legislative and executive body for those objects. It should therefore guard 
us against their abuses of power, within the field submitted to them. 2. A positive 
declaration of some essential rights could not be obtained in the requisite latitude. 
Answer : Half a loaf is better than no bread. If we cannot secure all our rights, 
let us secure what we can. 3. The limited powers of the Federal government, 
and jealousy of the subordinate governments, afford a security, which exists in 
no other instance. Answer: The first member of this seems resolvable into the 
first objection before stated. The jealousy of the subordinate governments is a 
precious reliance. But observe that those governments are only agents. They 
must have principles furnished them whereon to found their opposition. The 
declaration of rights will be the text whereby they will try all the acts of the 
Federal government. In this view it is necessary to the Federal government 
also ; as by the same text they may try the opposition of the subordinate govern- 

[292] 



CH. IX.] FEDERAL PROTECTION TO PERSON AND PROPERTY. * 259 

* The want of a bill of rights was, therefore, made the [* 259] 
ground of a decided, earnest, and formidable opposition to 

the confirmation of the national Constitution by the people ; and its 
adoption was only secured in some of the leading States in con- 
nection with the recommendation of amendments which should 
cover the ground. 1 

The clauses inserted in the original instrument, for the protection 
of person and property, had reference mainly to the action of the 
State governments, and were made limitations upon their power. 
The exceptions embraced a few cases only, in respect to which the 
experience of both English and American history had forcibly 
demonstrated the tendency of power to abuse, not when wielded by 
a prince only, but also when administered by the agencies of the 
people themselves. 

Bills of attainder were prohibited to be passed, either by the Con- 
gress 2 or by the legislatures of the several States. 3 Attainder, 
in a strict sense, means an extinction of civil and political rights 
and capacities ; and at the common law it followed, as of course, 
on conviction and sentence to death for treason ; and, in greater 
or less degree, on conviction and sentence for the different classes 
of felony. 

A bill of attainder was a legislative conviction for alleged crime, 

ments. 4. Experience proves the inefficacy of a bill of rights. True. But 
though it is not absolutely efficacious, under all circumstances, it is of great 
potency always, and rarely inefficacious. A brace the more will often keep up 
the building which would have fallen with that brace the less. There is a re- 
markable difference between the characters of the inconveniences which attend a 
declaration of rights, and those which attend the want of it. The inconveniences 
of the declaration are, that it may cramp government in its useful exertions. But 
the evil of this is short-lived, moderate, and reparable. The inconveniences of the 
want of a declaration are permanent, afflictive, and irreparable. They are in con- 
stant progression from bad to worse. The executive, in our governments, is not 
the sole, it is scarcely the principal, object of my jealousy. The tyranny of the ,- 
legislatures is the most formidable dread at present, and will be for many years. ' 
That of the executive will come in its turn; but it will be at a remote period." 
Letter to Madison, March 15, 1789, 3 Jefferson's Works, p. 4. See also same 
volume, pp. IS and 101 ; Vol. II. pp. 329, 358. 

1 For the various recommendations by Massachusetts, South Carolina, New 
Hampshire, Virginia, New York, North Carolina, and Rhode Island, see 1 Elliott's 
Debates, 322-334. 

* Constitution of United States, art. 1, § 9. 

3 Constitution of United States, art. 1, § 10. 

[ 293] 



* 259 CONSTITUTIONAL LIMITATIONS. [CH. IX. 

with judgment of death. Such convictions have not been uncom- 
mon under other governments, and the power to pass these bills has 
been exercised by the Parliament of England at some periods in 

its history, under the most oppressive and unjustifiable 
[* 260] * circumstances, greatly aggravated by an arbitrary course 

of procedure, which had few of the incidents of a judicial 
investigation into alleged crime. Of late years in England no one 
had attempted to defend it as a legitimate exercise of power ; and 
if it would be unjustifiable anywhere, there were many reasons why 
it would be specially obnoxious under a free government, and why 
consequently its prohibition, under the existing circumstances of 
our country, would be a matter of more than ordinary importance. 
Every one must concede that a legislative body, from its numbers 
and organization, and from the very intimate dependence of its 
members upon the people, which renders them liable to be pecul- 
iarly susceptible to popular clamor, is not properly constituted to 
try with coolness, caution, and impartiality a criminal charge, 
especially in those cases in which the popular feeling is strongly 
excited, — the very class of cases most likely to be prosecuted 
by this mode. And although it would be conceded that, if such 
bills were allowable, they should properly be presented only for 
offences against the general laws of the land, and be proceeded 
with on the same full opportunity for investigation and defence 
which is afforded in the courts of the common law, yet it was 
remembered that in practice they were often resorted to because an 
obnoxious person was not subject to punishment under the gen- 
eral law, 1 or because, in proceeding against him by this mode, some 
rule of the common law requiring a particular species or degree of 
evidence might be evaded, and a conviction secured on proofs that 

1 Cases of this description were most numerous during the reign of Henry VIII., 
and among the victims was Cromwell, who is said to have first advised that mon- 
arch to resort to this objectionable proceeding. Even the dead were attainted, 
as in the case of Richard III., and later, of the heroes of the Commonwealth. 
The most atrocious instance in history, however, only relieved by its weakness 
and futility, was the great act of attainder passed in 1688 by the Parliament 
of James II., assembled in Dublin, by which between two and three thousand 
persons were attainted, their property confiscated, and themselves sentenced to 
death if they failed to appear at a time named. And, to render the whole pro- 
ceeding as horrible in barbarity as possible, the list o the proscribed was care- 
fully kept secret until after the time fixed for their appearance ! Macaulay's 
History of England, c. 12. 

[294] 



CH. IX.] FEDERAL PROTECTION TO PERSON AND PROPERTY. 



260 



a jury would not be suffered to accept as overcoming the legal 
presumption of innocence. Whether the accused should neces- 
sarily be served with process ; what degree or species of evidence 
should be required ; whether the rules of law should be 
* followed, either in determining what constituted a crime, [* 261] 
or in dealing with the accused after conviction, — were all 
questions which would necessarily address themselves to the legis- 
lative discretion and sense of justice ; and the very qualities which 
are essential in a court to protect individuals on trial before them 
against popular clamor, or the hate of those in power, were pre- 
cisely those which were likely to prove weak or wanting in the 
legislative body at such a time. 1 And what could be more obnox- 
ious in a free government than the exercise of such a power by 
a popular body, controlled by a mere majority, fresh from the 
contests of exciting elections, and quite too apt, under the most 
favorable circumstances, to suspect the motives of their adversa- 
ries, and to resort to measures of doubtful propriety to secure 
party ends ? 

Legislative punishments of this severe character, however, were 
not the only ones known to parliamentary history ; but there were 
others of a milder form, which were only less obnoxious in that 
the consequences were less terrible. Those legislative convictions 
which imposed punishments less than that of death were called 
bills of pains and penalties, as distinguished from bills of attainder ; 
but the constitutional provisions we have referred to were undoubt- 
edly aimed at any and every species of legislative punishment for 
criminal or supposed criminal offences ; and the term " bill of 
attainder " is used in a generic sense, which would include bills 
of pains and penalties also. 2 

1 This was equally true, whether the attainder was at the command of the 
king, as in the case of Cardinal Pole's mother, or at the instigation of the popu- 
lace, as in the case of Wentworth, Earl of Strafford. The last infliction of capi- 
tal punishment in England, under a bill of attainder, was upon Sir John Fenwick, 
in the reign of William and Mary. It is worthy of note that in the preceding 
reign Sir John had been prominent in the attainder of the unhappy Monmouth. 
Macaulay's History of England, c. 5. 

2 Fletcher v. Peck, 6 Cranch, 138 ; Story on Constitution, § 1344; Cummings 
v. Missouri, 4 Wal. 277 ; Ex parte Garland, ib. 333; Drehman v. Stifle, 8 Wal. 
601. "I think it will be found that the following comprise those essential ele- 
ments of bills of attainder, in addition to those I have already mentioned [which 
were that thev declared certain persons attainted and their blood corrupted, so 

[295] 



* 262 CONSTITUTIONAL LIMITATIONS. [CH. IX. 

[* 262] * The thoughtful reader will not fail to discover, in the 
acts of the American States during the Revolutionary 
period, sufficient reason for this constitutional provision, even if 
the still more monitory history of the English attainders had not 
been so freshly remembered. Some of these acts provided for the 
forfeiture of the estates, within the Commonwealth, of those British 
subjects who had withdrawn from the jurisdiction because not sat- 
isfied that grievances existed sufficiently serious to justify the last 
resort of an oppressed people, or because of other reasons not 
satisfactory to the existing authorities ; and the only investigation 
provided for was an inquiry into the desertion. Others mentioned 
particular persons by name, adjudged them guilty of adhering to 
the enemies of the State, and proceeded to inflict punishment upon 
them, so far as the presence of property within the Commonwealth 
would enable the government to do so. 1 These were the resorts 
of a time of extreme peril ; and if possible to justify them in a 
period of revolution, when every thing was staked on success, and 
when the public safety would not permit too much weight to scru- 
ples concerning the private rights of those who were not aiding the 
popular cause, the power to repeat such acts under any possible 
circumstances in which the country could be placed again was felt 
to be too dangerous to be left in the legislative hands. So far as 
proceedings had been completed under those acts, before the treaty 
of 1783, by the actual transfer of property, they remained valid 

that it bad lost all beritable property], •which distinguish them from other legisla- 
tion, and which made them so obnoxious to the statesmen who organized our 
government : 1. They were convictions and sentences pronounced by the legis- 
lative department of the government, instead of the judicial. 2. The sentence 
pronounced and the punishment inflicted were determined by no previous law or 
fixed rule. 3. The investigation into the guilt of the accused, if any such were 
made, was not necessarily or generally conducted in his presence or that of his 
counsel, and no recognized rule of evidence governed the inquiry.' 1 Per Miller, 
J., in Ex parte Garland, 4 Wal. 388. 

1 See Belknap's History of New Hampshire, c. 26 ; 2 Ramsay's History of 
South Carolina, 351 ; 8 Rhode Island Colonial Records, 609 ; 2 Arnold's History 
of Rhode Island, 360, 449 ; Thompson v. Carr, 5 N. H. 510 ; Sleght v. Kane, 2 
Johns. Cas. 236 ; Story on Const. 4th ed. § 13i4 note. On the general subject 
of bills of attainder, one would do well to consult, in addition to the cases in 4 
Wallace, those of Blair v. Ridgeley, 41 Mo. 63 (where it was very elaborately 
examined by able counsel) ; State v. Staten, 6 Cold. 248 ; Randolph v. Good, 3 
W. Va. 551 ; Ex parte Law, decided by Mr. Justice Erskine, in the United States 
[296] 



CH. IX.] FEDERAL PROTECTION TO PERSON AND PROPERTY. * 262 

and effectual afterwards ; but so far as they were then incomplete, 
they were put an end to by that treaty. 1 

The conviction of the propriety of this constitutional provision 
has been so universal, that it has never been questioned, either in 
legislative bodies or elsewhere. Nevertheless, cases have recently 
arisen, growing out of the attempt to break up and destroy the 
government of the United States, in which the Supreme 
Court of * the United States has adjudged certain action [* 263] 
of Congress to be in violation of this provision and con- 
sequently void. 2 The action referred to was designed to exclude 

District Court of Georgia, May term, 18G6 ; State r. Adams, 44 Mo. 570 ; Beirne 
v. Brown, 4 W. Va. 72 ; Poerce v. Carskadon, ib. 234. 

1 Jackson v. Munson, 3 Caines, 137. 

2 On the 2d of July, 1862, Congress, by " an act to prescribe an oath of 
office, and for other purposes," enacted that " hereafter every person elected or 
appointed to any office of honor or profit under the government of the United 
States, either in the civil, military, or naval departments of the public service, 
excepting the President of the United States, shall, before entering upon the du- 
ties of such office, take and subscribe the following oath or affirmation : I, A B, 
do solemnly swear or affirm that I have never voluntarily borne arms against the 
United States since I have been a citizen thereof; that I have voluntarily given 
no aid, countenance, counsel, or encouragement to persons engaged in armed hos- 
tility thereto ; that I have neither sought nor accepted, nor attempted to exercise, 
the functions of any office whatever, under any authority or pretended authority 
in hostility to the United States ; that I have not yielded a voluntary support to 
any pretended government, authority, power, or constitution within the United 
States, hostile or inimical thereto. And I do further swear or affirm that, to the 
best of my knowledge and ability, I will support and defend the Constitution of 
the United States against all enemies, foreign and domestic ; that I will bear true 
faith and allegiance to the same ; that I take this obligation freely, without any 
mental reservation or purpose of evasion ; and that I will well and faithfully dis- 
charge the duties of the office on which I am about to enter, so help me God." 
On the 24th of January, 1865, Congress passed a supplementary act as follows : 
" No person after the date of this act shall be admitted to the bar of the Supreme 
Court of the United States, or at any time after the 4th of March next shall 
be admitted to the bar of any Circuit or District Court of the United States, or 
of the Court of Claims, as an attorney or counsellor of such court, or shall be 
allowed to appear and to be heard in any such court, by virtue of any previous 
admission, or any special power of attorney, unless he shall have first taken and 
subscribed the oath " aforesaid. False swearing, under each of the acts, was made 
perjury. See 12 Statutes at Large, 502 ; 13 ib. 424. In Ex parte Garland, 4 
Wal. 333, a majority of the court held the second of these acts void, as partaking 
of the nature of a bill of pains and penalties, and also as being an ex post facto 
law. The act was looked upon as inflicting a punishment for past conduct ; the 
exaction of the oath being the mode provided for ascertaining the parties upon 

[297 ] 



* 263 CONSTITUTIONAL LIMITATIONS. [CH. IX. 

from practice in the United States courts all persons who had 
taken up arms against the government during the recent rebellion, 
or who had voluntarily given aid and encouragement to its ene- 
mies ; and the mode adopted to effect the exclusion was to require 
of all persons, before they should be admitted to the bar or allowed 
to practise, an oath negativing any such disloyal action. This 
decision was not at first universally accepted as sound ; and the 
Supreme Courts of West Virginia and of the District of Columbia 
declined to follow it, insisting that permission to practise in the 

courts is not a right, but a privilege, and that the with- 
[* 264] holding * it for any reason of State policy or personal 

unfitness could not be regarded as the infliction of crim- 
inal punishment. 1 

The Supreme Court of the United States have also, upon the 
same reasoning, held a clause in the Constitution of Missouri, 
which, among other things, excluded all priests and clergymen 
from practising or teaching unless they should first take a similar 
oath of loyalty, to be void, overruling in so doing a decision of the 
Supreme Court of that State. 2 

•whom the act was intended to operate. See Drehman v. Stifle, 8 Wal . 597. 
The conclusion declared by the Supreme Court of the United States in Ex parte 
Garland had been previously reached by Mr. Justice Trigg, of the United States 
Circuit Court, in Matter of Baxter; by Mr. Justice Busteed, of the District 
Court of Alabama, in Matter of Shorter et al. ; and by Mr. Justice Erskine, of 
the District Court of Georgia, in Ex parte Law. An elector cannot be ex- 
cluded from the right to vote on the ground of being a deserter who has never 
been tried and convicted as such. Huber v. Reily, 53 Penn. St. 112 ; McCafferty 
v. Guyer, 59 Penn. St. 109 ; State v. Symonds, 57 Me. 148. See ante, 64, note 3. 

1 See the cases of Ex parte Magruder, American Law Register, Vol. VI. N. 8. 
p. 292; and Ex parte Hunter, ib. 410, 2 W. Va. 122; Ex parte Quarrier, 4 W. 
Va. 210. See also Cohen v. Wright, 22 Cal. 293; Ex parte Yale, 24 Cal. 241. 

2 Cummings v. Missouri, 4 Wall. 277. See also the case of State v. Adams, 
44 Mo. 570, in which it was held that a legislative act declaring that the board 
of curators of St. Charles College had forfeited their office, was of the nature 
of a bill of attainder and void. The Missouri oath of loyalty was a very strin- 
gent one, and applied to electors, State, county, city, and town officers, officers 
in any corporation, public or private, professors and teachers in educational in- 
stitutions, attorneys and counsellors, bishops, priests, deacons, ministers, elders, 
or other clergymen of any denomination. The Supreme Court of Missouri had 
held this provision valid in the following cases : State v. Garesche, 36 Mo. 256, 
case of an attorney ; State ». Cummings, 36 Mo. 263, case of a minister, reversed 
as above stated; State v. Bernoudy, 36 Mo. 279, case of the recorder of St. 
Louis ; State v. McAdoo, 36 Mo. 452, where it is held that a certificate of elec- 

[298] 



CH. IX.] FEDERAL PROTECTION TO PERSON AND PROPERTY. * 264 

The same provisions of the national Constitution which we have 
cited 1 also forbid the passage either by the States or by Congress 
of any ex post facto law. 

At an early day it was settled by authoritative decision, in oppo- 
sition to what might seem the more natural and obvious meaning 
of the term ex post facto, that in their scope and purpose these 
provisions were confined to laws respecting criminal punishments, 
and had no relation whatever to retrospective legislation of any 
other description. And it has, therefore, been repeatedly held, 
that retrospective laws, when not of a criminal nature, do not 
come in conflict with the national Constitution, unless obnoxious 
to its provisions on other grounds than their retrospective char- 
acter. 

" The prohibition in the letter," says Chase, J., in the leading 
case, 2 " is not to pass any law concerning or after the fact ; but 
the plain and obvious meaning and intention of the prohibition is 
this : that the legislatures of the several States shall not pass laws 
after a fact done by a subject or citizen, which shall have relation 
to such fact, and punish him for having done it. The pro- 
hibition, * considered in this light, is an additional bulwark [*265] 
in favor of the personal security of the subject, to protect 
his person from punishment by legislative acts having a retro- 
spective operation. I do not think it was inserted to secure the 
citizen in his private rights of either property or contracts. The 
prohibitions not to make any thing but gold and silver coin a 
tender in payment of debts, and not to pass any law impairing 
the obligation of contracts, were inserted to secure private rights ; 
but the restriction not to pass any ex post facto law was to 
secure the person of the subject from injury or punishment, in 
consequence of such law. If the prohibition against making ex 
post facto laws was intended to secure personal rights from being 
affected or injured by such law, and the prohibition is suffi- 

tion issued to one who failed to take the oath as required by the constitution was 
void. In Beirne v. Brown, 4 W. Va. 72, and Peerce v. Carskadon, ib. 234, an 
act excluding persons from the privilege of sustaining suits in the courts of the 
State, or from proceedings for a rehearing, except upon their taking an oath that 
they had never been engaged in hostile measures against the government, was 
sustained. And see State v. Neal, 42 Mo. 119. 

1 Constitution of United States, art. 1, §§ 9 and 10. 

2 Calder v. Bull, 3 Dall. 390. 

[ 299] 



* 265 CONSTITUTIONAL LIMITATIONS. [CH. IX. 

ciently extensive for that object, the other restraints I have enu- 
merated were unnecessary, and therefore improper, for both of 
them are retrospective. 

" I will state what laws I consider ex post facto laws, within 
the words and the intent of the prohibition. 1st. Every law that 
makes an action done before the passing of the law, and which 
was innocent when done, criminal, and punishes such action. 
2d. Every law that aggravates a crime, or makes it greater than 
it was when committed. 3d. Every law that changes the punish- 
ment, and inflicts a greater punishment than the law annexed to 
the crime when committed. 4th. Every law that alters the legal 
rules of evidence, and receives less or different testimony than 
the law required at the time of the commission of the offence, in 
order to convict the offender. All these and similar laws are 
manifestly unjust and oppressive. In my opinion, the true dis- 
tinction is between ex post facto laws and retrospective laws. 
Every ex post facto law must necessarily be retrospective, but 
every retrospective law is not an ex post facto law ; the former 
only are prohibited. Every law that takes away or impairs rights 
vested, agreeably to existing laws, is retrospective and is generally 
unjust, and may be oppressive ; and there is a good general rule, 
that a law should have no retrospect ; but there are cases in 
which laws may justly, and for the benefit of the community, and 
also of individuals, relate to a time antecedent to their commence- 
ment ; as statutes of oblivion or of pardon. They are certainly 
retrospective, and literally both concerning and after the facts 
committed. But I do not consider any law ex post facto, within 

the prohibition that mollifies the rigor of the criminal 
[* 266] law ; but * only those that create or aggravate the crime, 

or increase the punishment, or change the rules of evi- 
dence for the purpose of conviction. Every law that is to have an 
operation before the making thereof, as to commence at an antece- 
dent time, or to save time from the statute of limitations, or to 
excuse acts which were unlawful, and before committed, and the 
like, is retrospective. But such acts may be proper and necessary, 
as the case may be. There is a great and apparent difference 
between making an unlawful act lawful, and the making an inno- 
cent act criminal, and punishing it as a crime. The expressions 
ex post facto are technical; they had been in use long before the 
[ 300] 



CH. IX.] FEDERAL PROTECTION TO PERSON AND PROPERTY. * 266 

Revolution, and had acquired an appropriate meaning, by legis- 
lators, lawyers, and authors." x 

Assuming this construction of the constitutional provision to be 
correct, — and it has been accepted and followed as correct by the 
courts ever since, — it would seem that little need be said relative 
to the first, second, and fourth classes of ex post facto laws, as 
enumerated in the opinion quoted. It is not essential, however, in 
order to render a law invalid on these grounds, that it should 
expressly assume the action to which it relates to be criminal, or 
provide for its punishment on that ground. If it shall subject an 
individual to a pecuniary penalty for an act which, when done, 
involved no responsibility, 2 or if it deprives a party of any valuable 
right — like the right to follow a lawful calling — for acts which 
were innocent, or at least not punishable by law when committed, 3 
the law will be ex post facto in the constitutional sense, notwith- 
standing it does not in terms declare the acts to which the penalty 
is attached criminal. 4 But how far a law may change the punishment 
for a criminal offence, and make the change applicable to 
past offences, is certainly a question of great * difficulty, [* 267] 
which has been increased by the decisions made concern- 
ing it. As the constitutional provision is enacted for the protection 
and security of accused parties against arbitrary and oppressive 
legislative action, it is evident that any change in the law which 

1 See, also, Fletclier v. Peck, 6 Cranch, 87 ; Ogden v. Saunders, 12 Wheat. 
266; Satterlee v. Mathewson, 2 Pet. 380; Watson v. Mercer, 8 Pet. 110; 
Charles River Bridge v. Warren Bridge, 11 Pet. 421; Carpenter U.Pennsyl- 
vania, 17 How. 463 ; Curnmings v. Missouri, 4 Wal. 277 ; Ex parte Garland, 
ib. 333 ; Baugher v. Nelson, 9 Gill, 299 ; Woart v. Winnick, 3 N. H. 475 ; 
Locke v. Dane, 9 Mass. 863; Dash v. Van Kleek, 7 Johns, 497; Evans v. 
Montgomery, 4 W. & S. 218; Tucker v. Harris, 13 Geo. 1; Perry's Case, 3 
Grat. 632; Municipality No. 1 v. Wheeler, 10 La. An. 745; New Orleans v. 
Poutz, 14 La. An. 853. Huber v. Reily, 53 Penn. St. 115. 

2 Falconers. Campbell, 2 McLean, 212. 

3 Curnmings v. Missouri, 4 Wal. 277 ; Ex parte Garland, ib. 333. But a 
divorce is not a punishment, and it may therefore be authorized for causes hap- 
pening previous to the passage of the divorce act. Carson v. Carson, 40 Miss. 
349. 

4 The repeal of an amnesty law by a constitutional convention was held to be 
ex post facto as to the cases covered by the law in State v. Keith, 63 N. C. 140. 
An act to validate an invalid conviction would be