KF4549.H17T2""""'""""-"'"'^ "'"fjrative cases on constitutional law 3 1924 019 915 846 Cornell University Law Library THE GIFT OF Mc^l*<^ ready been given to Congress. ThP ^udicial and executive powers , were also lodtfed elsewhere and the legislative department was forbidden to trench upon the others by an implication as clear as ' words could make it. The jurisdiction of the Assembly was still ' further confined by that part of the Constitution called thffl Pecla- ration of Rights," which, in twenty-five sections, carefully enumer- ates the reserved rights of the people, and closes by declaring that "everything in this article is excepted out of the general powers of the government, and shall remain for ever inviolate." The Gen- eral Assembly cannot, therefore, pass any law to conflict with the rightful authority of Congress, nor perform a judicial or executive function, nor violate the popular privileges reserved by the Decla- raltion of Rights, nor change the organic structure of the govern- ment, nor exercise any other power prohibited in the Constitution. If it does any of these things, the judiciary claims, and in clear cases has always exercised, the right to declare such acts void. But beyond this there lies a vast field of power, granted to the legislature by the general words of the Constitution, and not re- served, prohibited, or given away to others. Of this field the Gen- eral Assembly is entitled to the full and uncontrolled possession. Their use of it can be limited only by their own discretion. The-' reservation of some powers does not imply a restriction on the-/ exercises of others which are not reserved. On the contrary, it is a universal rule of construction, founded in the clearest reason, that general words in any instrument or statute are Strengthened by exceptions, and weakened by enumeration. To m e, it is as plain that the General Assemblv mav exercise all powers which are prop- erly legi^lativPr and which are not taken away by our own, or b:^ the federal Constitution, as it is that the people hav e all the rights which are expressly reserved. We are urged, however, to go further than this, and to hold that a law, though not prohibited, is void if it violates the spirit of our institutions, nr impairs any of those rights which it is the object of a free government to protect, and to declare it unconstitutional ir it be wrong and unjv ___,^__^__, assuming a right to change the Constitution, to supply what we might conceive to be its defects, to fill up every casus omissus, and to interpolate into it whatever in our opinion ought to have been put there by its framers. The Constitution has given us a list of the things which the legislature may not do. If we extend that list, 14 CONSTKUOTION AND INTERPRETATION OF CONSTITUTIONS we alter the instrument, we become ourselves the aggressors, and violate both the letter and spirit of the organic law as grossly as the legislature possibly could. If we can add to the reserved rights of the people, we can take them away; if we can mend, we can mar; if we can remove the landmarks which we find established, we can obliterate them ; if we can change the Constitution in any particular, there is nothing but our own will to prevent us from demolishing it entirely. The great powers given to the legislature are liable to be abused. But this is inseparable from the nature of human institutions. The wisdom of man has never conceived of a government with power sufficient to answer its legitimate ends, and at the same time in- capable of mischief. No political system can be made so perfect that its rulers will always hold it to the true course. In the very best a great deal must be trusted to the discretion of those who ad- minister it. In ours, the people have given larger powers to the legislature, and relied, for the faithful execution of them, on the , wisdom and honesty of that department, and on the direct account- ability of the members of their constituents. There is no shadow of reason for supposing that the mere abuse of power was meant to be corrected bv the judiciary. There is nothing more easy than to imagine a thousand tyran- nical things which the legislature may do, if its members forget all their duties ; disregard utterly the obligations they owe to their constituents, and recklessly determine to trample upon right and justice. But to take away the power from the legislature because they may abuse it, and give to the judges the right of controlling it, would not be advancing a single step, since the judges can be imagined to be as corrupt and as wicked as legislators. * * * What is worse still, the judges are almost entirely irresponsible, ' and heretolore thev have been altogether so, while the members ot the lep^islatureT who would do the imagmary t hi ngs referred to, " would be scourged into retirement by their mdignant masters/ '' I am thoroughly convinced that the words of the Cons titution furnish the only test to determine the validity of a statute, and that all arguments, based on general principles outside of the Consti- tution, must he addressed to the people, and not to us. * * *^ [After referring to various dicta to the contrary :J On the other side, the weight of authority is overwhelming. I am not aware that any state court has ever yet held a law to be invalid, except where it was clearly forbidden. Certainly, no case of a different character has been cited at the bar. In the many cases which af- firm the validity of state laws, this principle is uniformly recognized, either tacitly or expressly. The Supreme Court of the United States has adhered to it on every occasion when it has been ques- tioned there. In Satterlee v. Matthewson (2 Pet. 380, 7 L,. Ed. 458), an act of the Pennsylvania legislature was censured as un- CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS 15 wise and unjust; but, because it came within no express prohibition of the Constitution, it was held to be binding on the parties inter- ested; and in Fletcher v. Peck. 6 Cranch. R7. 3 T.. Ed. 162. it was de- clared that, while the leq^islature was within the Constitution, even corruption did not make its acts void. In Calder v. Bull, 3 Dall.j 386, 1 L. Ed. 648, Mr. Justice Iredell said : "If a state legislature/ shall pass a law, within the general scope of their constitutional powers, the court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural jus- tice. The ideas of natural justice are regulated by no fixed stand- ard, the ablest and the purest men have diflfered upon the subject; and all the court, in such an event, could say, would be that the legislature (possessed of an equal right of opinion) had passed an act, which, in the opinion of the judges, was contrary to abstract principles of right." * * * Judge Baldwin in Bennett v. Boggs, 1 Bald. 74, Fed. Cas. No. 1,319, [said] ; " * * * A Ye cannot declare a legislative act void because it conflicts with our opinion of policy, expediency, or ius- ticc " ^ ^ ^ There is another rule which must govern us in cases like this; namely, that we can declare an Act of Assembly void, only when it violates the Constitution clearly, palpably, plainly ; and in such manner as to leave no doubt or hesitation on our minds. This principle is asserted by judges of every grade, both in the federal and in the state courts ; and by some of them it is expressed with much solemnity of language. Fletcher v. Peck, 6 Cranch, 87, 3 L. Ed. 162; Cooper v. Telfair, 4 Ball. 14, 1 L,. Ed. 721; Moore v. Houston, 3 Serg. & R. 178; Eakin v. Raub, 12 Serg. & R. 339; Com. ex rel. O'Hara v. Smith, 4 Bin. 123. A citation of all the au- thorities which establish it would include nearly every case in which a question of constitutional law has arisen. I beli eve it has the singular advantage of not being opposed even by a dict um. "~" We are to inquire then, whether there is anything in the Consti- tution which expressly or by clear implication forbids the legisla- ture to authorize subscriptions by a city to the capital stock" of a company incorporated for the purpose of making a railroad. * * * [Here follows a discussion upholding taxation to pay such sub- scriptions as being in fact for a public purpose and not within any specific prohibition of the state Constitution. Cases to this efifect from other states are cited.] These cases are entitled to our high- est respect. In rhost of them, and especially the later ones, the subject is very ably discussed, and they are a manifest triumph of reason and law over a strong conviction in the minds of the judges that the system they sustain was impolitic, dangerous, and im- moral. * * * Injunction refused. [Woodward and ICnox, JJ., gave concurring opinions.] 16 CONSTEUCTION AND INTEEPKETATION OF CONSTITUTIONS BORGNIS V. FALK CO. (1911) 147 Wis. 327, 348-350, 133 N. ■ W. 209, 215, 216, Winslow, C. J. ( upholding a Wisconsin work- men's compensation act upon an "elective" insurance plan) : "in approaching the consideration of the present law, we must bear in mind the well-established principle that it must be sustained, unless it be clear beyond reasonable question that it violates some constitutional limitation or prohibition. That governments founded" on written Constitutions which are made difficult of amendment or change lose much in flexibility and adaptablity to changed con- ditions there can be no doubt. Indeed that may be said to be one purpose of the written Constitution. Doubtless they gain enough in stability and freedom from mere whimsical and sudden changes 'to more than make up for the loss in flexibility ; but the loss still remains, whether for good or ill. A Constitution is a very human document, and must embody with greater or less fidelity the spirit of the time of its adoption. It will be framed to meet the problems and difficulties which face the men who make it, and it will gen- erally crystallize with more or less fidelity the political, social, and economic propositions which are considered irrefutable, if not actu- ally inspired, by the philosophers and legislators of the time; but the difficulty is that, while the Cnnstitiiition is fixed or very hard i to change, the conditions and problems surrounding the people, as well as their ideals, are constantlv changing. The political or phil- osophical aphorism of one generation is doubted by the next, and entirely discarded by the third. The race moves forward con- stantly, and no Canute can stay its progress. " Constitutional commands and prohibitions, either distinctly laid down in express words or necessarily implied from general words , must be obeyed, and implicitly obeyed, so long as they remain un- amended or unrepealed. Any other course on the part of either legislator or judge constitutes violation of his oath of office; but when there is no such expres s command or orohi bitinn hitt nnly general language, or a general policy drawn from the four corners of the instrument, what shall be said about this? By what stand- ards is this general language or general policy to be interpreted and applied to present day people and conditions? When an eigh- teenth ce ntury Cn nstitution forms the charter of liberty of a twen"^., tieth centurv government, must its general provisions be construed and interpreted by an eighteenth century mind in the light of eighteenth century conditions and ideals ? Clearlv not. This were to command the race to halt in its progress, to stretch the state upon a veritable bed of Procrustes. "Where there is no express command or prohibition, but only general language or policy to be considered, the conditions prevail- ing at the time of its adoption must have their due weight; but the changed social, economic, and governmental conditions and CONSTRUCTION AND INTEBPRBTATION OF CONSTITUTIONS 17 ideal-s of the time, as well as the problems which the changes have produced, must also logically enter into the consideration, and be- come influential factors in the settlement of problems of construc- tion and interpretation. These general propositions are here laid down, not because they are considered either new or in serious controversy, but because they are believed to be peculiarly appli- cable to a case like the present, where a law which is framed to meet new economic conditions and difficulties resulting therefrom is attacked principally because it is believed to offend against con- stitutional guaranties or prohibitions couched in general terms, or supposed general policies drawn from the whole body of the in- strument." Hall Cases Const.Ii. — 2 18 THE THKBE DEPARTMENTS OF GOVERNMENT THE THREE DEPARTMENTS OF GOVERNMENT » MERRILL V. SHERBURNE. (Superior Court of New HampsMre, 1818. 1 N. H. 199, 8 Am. Dec. 52.) [Appeal from the probate court of Rockingham county, New Hampshire. This court allowed the probate of an instrument as the will of Nathaniel Ward, in which all his property was devised to Merrill. Sherburne, one of Ward's heirs, appealed from this deci- sion to the Superior Court, where this decree was reversed, and, after refusing a motion for a new trial, the court rendered final judgment for Sherburne. The legislature, on Merrill's petition, passed an act granting to him a new trial in the Superior Court. Sherburne moved to quash the proceedings thus begun by Merrill, as based on an unconstitutional exercise of judicial power by the legislature.] Woodbury, J. * * * 1. No particular definition of judicial powers is given in the Constitution; and considering the general nature of the instrument, none was to be expected. Critical state- ments of the meanings, in which all important words were em- ployed, would have swollen into volumes ; and when those words possessed a customary signification, a definition of them would 'have been useless. But "powers judicial," "judiciary powers," and "judicatories" are all phrases used in the Constitution; and though not particularly defined, are still so used to designate with clear- ness, that department of government, which it was intended should interpret and administer the laws. On general principles there- fore, 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 employments of judicial and legisla- tive tribunals. The former decide upon the legality of claims and conduct ; the latter make rules, upon which, in connection with the Constitution, those decisions should be founded. It is the province of judges to determine what is the law upon existing cases. 6 Bac. Stat. 11; Ogden v. Blackledge, 2 Cranch, 272, 2 L. Ed. 276; Dash v. Van Kleeck, 7 Johns. (N. Y.) 498, 5 Am. Dec. 291. In fine, the law is applied by the one, and made by the other.^ To 1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 50-56. For additional cases under this topic, see cases under The Federal Execu- tive, post, pp. 35-42. 2 "What constitutes the distinction between a legislative and judicial act? The former establishes a rule regulating and governing in matters or trans- actions occurring after its passage. The other determines rights or obliga- THE THREE DEPARTMENTS OF GOVERNMENT 19 do the first, therefore, to compare the claims of parties with the laws of the land before established, is in its nature a judicial act. But to do the last, to pass new rules for the regulation of new controversies, is in its nature a legislative act; and if these rules interfere with the past, or the present, and do not look wholly to the future, they violate the definition of a law, "as a rule of civil conduct" (1 Bl. Com. 44), because no rule of conduct can with consistency operate upon what occurred before the rule itself was promulgated. * * * The ^rant of a new trial belongs to the courts of law from im- niemonai usage. The power to grant a new trial is incidental to their other powers. It is a judgment in relation to a private con- ■ troversy; affects what has already happened; and results from a comparison of evidence and claims with the existing laws. It will not be denied, that the consideration and decision, by the Superior Court, of the motion for this sam e new trial was an exercise of ju- dicial power. If so a consideration and decision upon the same sub- ject by the legislature must be an exercise of power of the same de- scription ; for what is in its nature judicial to-day, must be judicial to-morrow and forever. The circumstance, also, that the legislature themselves did not proceed to make a final judgment on the merits of the controversy between these parties cannot alter the character of the act granting a new trial. To award such a trial was one ju- dicial act, and because they did not proceed to perform another, by holding that trial before themselves, the first act did not become any more or less a judicial one. We apprehend, therefore, that the character of the act under consideration must be deemed judi- cial. This position will probably be less doubted, than the position that our Constitution has not confided to the legislature the power to pass such an act. But that power, if confided, must be exercised by the legislature as a branch of the judiciary, or under some spe- cial provision, or as a mere legislative body. 2. Our next inquiry, then, is, whether they, as a branch of the judiciary, are enabled to exercise it. * * * At the formation of our present Constitution, whatever might have been the prior con- nection between the legislative and judicial departments, a great solicitude existed to keep them, thence forward, on the subject of tions of any kind, whether in regard of persons or property, concerning mat- ters or transactions which already exist and have transpired ere the judicial power is invoked to pass on them." Thornton, J., in Smith v. Strother, 68 Cal. 194, 196, 197, 8 Pac. 852, 853, 854 (1885). "The distinction between a judicial and a legislative act is well defined. The one determines what the law is, and what the rights of parties are, with reference to transactions already had ; the other provides what the law shall be in future cases arising under it. Wherever an act undertakes to deter- mine a question of right or obligation, or of property, as the foundation on which it proceeds, such act is, to that extent, a judicial one, and not the proper exercise of legislative functions." Field, J. (in dissenting opinion), in Sinking Fund Oases, 99 U. S. 727, 761, 25 L. Ed. 504 (1879). 20 THE THREE DBPAETMENTS OF GOVERNMENT private controversies, perfectly separate and independent. 1 Bl. C. Apx. A : Letter of Judges Sup. Court of United States, April, 1782. It was well known and considered, that "in the distinct and sep- arate existence of the judicial power consists one main preservative of the public liberty" (Bl. Com. 269 ) ; that, indeed, "there is no lib- erty, if the power of judgmg be not separated from the legislative and executive powers" <" , Montesquieu. B. 11, Ch. 6). In other words that "the union of these two powers is tyranny"" (7 Johns. 508) ; or, as Mr. Madison observes, may justly be "pronounced the very definition of tyranny" (Fed. No. 47) ; or, in the language of Mr. TeflFerson, "is precisely the definition of despotic government" (Notes on Vir. 195). Not a single Constitution therefore, exists in the whole Union, which does not adopt this principle of separation as a part of its basis. Fed. No. 81; 1 Bl. Apx. 126, Tuck. Ed.; 3 Niles' Reg. 2; 4 Niles' Reg. 400. We are aware, that in Connecticut, till lately, and still in New York, a part of their legislature exercise some judicial authority. 4 Niles' Reg. 443. This is probably a relic of the rude and monarchical governments of the Eastern world; in some of which no division of powers existed in theory, and very little in practice. Even in England the executive and judicial departments were once united (1 Bl. 267; 2 Hutch. His. 107); and when our ancestors emigrated hither, they from imitation, smallness of num- bers and attachment to popular forms, vested often in one depart- ment not only distinct, but sometimes universal powers (2 Wil. Wks. 50; 1 Minot, His. 27; 1 Hutch. His. 30; 2 Hutch. His. 250, 414). The practice of their assemblies to perform judicial acts (Calder and Wife v. Bull et al., 3 Dal. 386, 1 L. Ed. 648) has contributed to produce an impression, that our legislatures can also perform them. But it should be remembered, that those assemblies were restrained by no Constitutions, and that the evils of this practice (Fed. No. 44), united with the increase of political science have produced the very changes and prohibitions before mentioned. The exceptions in Connecticut and New York do not affect the argument; because those exceptions are not implied, but detailed in specific terms in their charters; and this power, also, as in the House of Lords in England, is in those states to be exercised in the form of judgments and not of laws ; and by one branch, and not by all, of the legisla- ture. 4 Niles' Reg. 444. "The entire legislature can perform no judiciary act." Fed. No. 47. * * * One great object of Constitutions here (Fed. No. 81) was to limit the powers of all the departments of government (Bill of Rights, arts. 1, 7, 8, 38) ; and our Constitution contains manv express pro- visions in relati on to them, whi ch are wholly irreconcilable wit^^ the exercise oi lurticiAl pnw^ts bv the leg-rslature. as a branch of the judiciary. That clause, which confers upon the "general court" the • THE THREE DEPARTMENTS OP GOVERNMENT 21 authority "to make laws," provides at the same time, that they must not be "repugnant or contrary to the Constitution." One prominent reason for creating the judicial, distinct from the legis- lative department, was, that the former might determine when laws were thus "repugnant," and so operate as a check upon the latter, and as a safeguard to the people against its mistakes or en- croachments. But the judiciary would in every respect cease to be a check on the legislature, if the legislature could at pleasure re- vise or alter any of the judgments of the judiciary. * * * [The law was held also to violate a constitutional prohibition against re- trospective legislation.] The long usage of our legislatures to grant new trials has also been deemed an argument in favor of the act under consideration. ' But that usage commenced under colonial institutions, where legis- ' lative powers were neither understood nor limited as under our < present constitution. Since the adoption of that, the usage has^ been resisted by sound civilians, and often declared void by courts of law. Though no opinions have been published, and though the decisions have been contradictory, yet the following ones appear by^ the records to have adjudged such acts void: Oilman v. McClary,^ Rock., Sept., 1791 ; Chickering v. Clark, Hills ; Butterfield v. Mor- gan, Ches., May, 1797 ; Jenness et al., Ex'rs, v. Seavey, Rock., Feb. 1799. Nor could it be pretended on any sound principles, that the usage to pass them, if uninterrupted for the last twenty-seven years, would amount to a iustification. provided both the letter and spirit of the written charter of our liberties forbid them. * * * Proceedings quashed. CARTER V. COMMONWEALTH. (Supreme Court of Appeals of Virginia, 1899. 96 Va. 791, 32 S. E. 780, 45 L. R. A. 310.) [Error to the Circuit Court of Lynchburg. Carter was informed, by his attorney that his presence in court was necessary at once in a case m which he was a oartv. He falsely telegraphed that he was sick and could not come, seeking to obtain a continuance of his case. When ordered to appear before the court to show cause why he should not be punished for contempt, Carter made an excuse for his conduct and asked for a jury trial. The court held his excuse msufficient and sentenced him to pay a fine of $25 and be impris- one d ior two days, without a jury trial. Other facts appear in the opinion.] " Keith, P. J. * * * [A Virginia statute of 1830-31 was amended in 1897-98 to read as follows:^] 3 Sec. 3768. Tlie courts and judges may issue attachments for contempt, and punish them summarily, only in the following cases, which are hereby 22 THE THREE DEPARTMENTS OF GOVERNMENT The Constitution now in force (article 6, § 1) provides : "There shall be a supreme court of appeals, circuit courts and county courts. The jurisdiction of these tribunals, and of the judges thereof, except so far as the same is conferred by this Constitution, snail be regulated bv law." In a subsequent portion of the instru- ment, corporation courts are also provided for the cities of the state. These courts do not derive their existence from the legisla- ture. They are called into being by the Constitution itself, the same authority which creates the legislature and the whole frame- work of state government. What was the nature and character of the tribunals thus insti- tuted? Our conception of courts, and of their powers and func- tions, comes to us through that great system of English jurispru- dence known as the "common law," which we have adopted and in- corporated into the body of our laws. That the English courts have exercised the power in question, from the remotest period does not admit of doubl . Said Chief Jus- tice Wilmot: "The power which the courts in Westminster Hall have of vindicating their own authority is coeval with their first foundation and institution ; it is a necessary incident to every court of justice, whether of record or not, to fine and imprison for a con- tempt acted in the face of the court ; and the issuing of attachments by the supreme court of justice in Westminster Hall for contempts out of court stands on the same immemorial usage which supports the whole fabric of the common law. It is as much the lex terrae, tand within the exception of Magna Charta, as the issuing of any other legal process whatsoever. I have examined very carefully to see if I could find out any vestiges of its introduction, but can find none. It is as' ancient as any other part of the common law. There is no priority or posteriority to be found about it. It cannot, there- fore, be said to invade the common law. It acts in alliance and friendly conjunction with every other provision which the wisdom of our ancestors has established for the general good of society. Truth compels me to say that the mode of proceeding by attach- ment stands upon the very same foundation as trial by jury. It is a constitutional remedy in particular cases, and the judges in those cases are as much bound to give an activity to this part of the law as to any other." 3 Camp. Lives of Ch. Just. p. 153. declared to be direct contempts, all other contempts being indirect contempts. First. Misbehavior in the presence of the court, or so near thereto as to obstruct the administration of justice. Second. Violence or threats of violence to a judge or officer of the court or to a juror, witness or party going to, attending or returning from the court, for or in respect of any act or proceeding had or to be had in such court. Third. Misbehavior of an officer of the court in his official character. Fourth. Disobedience or resistance of an officer of the court, juror or wit- ness to any lawful process, judgment, decree or order of the said court. [If requested by the defendant, provision was made for the trial by jury of indirect contempts.] THE THREE DEPARTMENTS OF GOVERNMENT 23 In ynited States v. Hudson, 7 Cranch, 32, 3 t. Ed. 259, it was held that " certain implied powers must necessarily result to our courts of justice from the nature of their institution.. But jurisdic- tion ot crimes against the state is not among those powers. To fine for contempt, imprison for contumacy, enforce the observance of order, etc., are powers which cannot be dispensed with in a court, because thev are necessarv to the pxerrise nf all others; ^ and so far our courts no doubt possess powers not immediately derived from statute." In Wells v. Com., 21 Grat. (62 Va.) 503, it was said: "The power to fine and imprison for contempt js incident to everv court Q^f record. The courts, ex necessitate, have the power of protecting the admmistration of justice, with a promptness calculated to meet the exigency of the particular case." It is unnecessary, however, to multiply authority upon this point, for we understand it to have been conceded by counsel for plaintiff in error that the power to punish contempts is inherent in all ^ courts ; but the contention is that it may be regulated bv legislative i action, and we are prepared tn c.nnce.Ap that it is proper for the leg_- ' ;slature to regulate the exercise of the power so long as it confines < itself withm limits consistent with the preservation of the authority ; ot courts to enforce such respect and obedience as is necessary to , , their vigor and etficiency ^. ''' '*' * It was contended by counsel for plaintiff in error that, inasmuch as the act of 1897-98 merely transferred the punishment of con- tempts from the court to a jury, and even made acts punishable as contempts not embraced within the act of 1830-31, that it was not obnoxious to the objection that it interfered with or diminished the power of the court to protect itself. To this view we cannot assent. I t is not a question of the degree or extent of the punishment inflicted. It may be that juries would punish a given offense with more severity than the court; but yet the jury is a tribunal separate and distinct from the court. The power to punish for contempts is inherent in the courts, and is con-^ ferred upon them by the Constitution by the very act of their crea- tion. Tt is a tr ust rnnfj ded and a duty imposed upon us by the soverei gn people, which we cannot surrender or suffer to he im- paired without being recreant to our duty. Upon the point made by counsel for plaintiff in error, that the of- fense under consideration, if not embraced within the category of direct contempts by the act of 1897-98, neither was it by that of 1830-31, we cannot do better than to quote the language of the su- preme court of Arkansas, in State v. Morrill, 16 Ark. at page 390 : "The legislature may re gulate the exercise of, but cannot ahridp^Cj the express 6f fl6(ie55arily implied powers granted to this court by the Constitution. If it could, it might encroach upon both the ju- dicial and executive departments, and draw to itself all the powers 24 THE THREE DEPARTMENTS OF GOVERNMENT of government, and thereby destroy that admirable system of checks and balances to be found in the organic framework of both the fed- eral and state institutions, and a favorite theory in the government of the American people. "As far as the act in question goes, in sanctioning the power of the courts to punish, as contempts, the 'acts' therein enumerated, it is merely declaratory of what the law was before its passage. The prohibitory feature of the act can be regarded as nothing more than the expression of a judicial opinion by the legislature that the courts may exercise and enforce all their constitutional powers, and answer all the useful purposes of their creation, without the necessity of punishing as a contempt any matter not enumerated in the act. As such, it is entitled to great respect ; but to say that it is absolutely binding upon the courts would be to concede that the courts have no constitutional and inherent power to punish any class of contempts, but that the whole subject is under the con- trol of the legislative department, because, if the general assembly may deprive the courts of power to punish one class of contempts, it may go the whole length, and devest them of power to punish any contempt." Reliance was placed by counsel for plaintiff in error upon a class of cases of which Ex parte Robinson, 19 Wall. 505, 22 L. Ed. 205, may be considered typical. In that case Robinson had in the most summary manner, without the opportunity of defense, been stricken from the roll of attorneys by the district court for the Western dis- trict of Arkansas. He applied to the supreme court for a manda- mus, which is the appropriate remedy to restore an attorney who has been disbarred, and that court held, Mr. Justice Field delivering the opinion, that : "The power to punish for contempts is inherent in all courts. Its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments; orders, and writs of the courts, and consequently to the due admin- istration of justice. The moment the courts of the United States were called into existence, and invested with jurisdiction over any subject, they became possessed of this power. But the power has been limited and defined by the act of congress of March 2, 1831," and the court declared that there could be no question as to its application to the circuit and district courts. "These courts were created by act of congress. Their powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction. The act of 1831 is, therefore, to them the law specifying the cases in which surnmary punishment for contempts may be inflicted." Turning to the Constitution of the United States, we find that it (article 3, § 1) declares that "the judicial power of the United ^tates shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and estab- THE THREE DEPARTMENTS OF GOVERNMENT 25 lish." This language is th? equivalent of that found in our Consti- tutions prior to that of 1851, hereinbefore quoted. The inferior fed- eral courts and their jurisdiction are the creatures of congress, and not of the Constitution. * * * [Here it is remarked that the federal statute of 1831 is so com- prehensive as completely to protect the courts, and that their power to punish in the enumerated cases is unlimited.] The enumeration of subjects punishable as direct contempts in the act under consideration seems to embrace almost every con- ceivable .form of that offense which can occur in the presence of, or in proximity to, the court; that is to say, under circumstances likely to arouse the passion or prejudice of the judge, and disturb that equanimity essential to calm and wise judicial action. The court may punish summarily not only all such offenses, but for dis- obedience or resistance to any lawful process, judgment, decree, or order; its officers, jurors, and witnesses may also thus be pun- ished; and only the parties to the suit are entitled to a trial by jury. Thus we see that offenses of a nature personal to the court are to be punished by the court, while those which interest suitors are punishable only by a jury. So that suitors, having obtained a judg- ment or decree, after long and expensive litigation, find the court powerless to secure to them its fruition and enjoyment, and, unless tl^^ir gntaprr.n;cj f chance to be a law-abiding citizen, discover that their success has only begotten another controversy. Ours is a law-abiding community, and good citizens will, without compulsion, respect the lawful orders of their courts ; but in every society there afe. those who obey the laws only because there is behind thtnysT force they dare not resist. Is it wise or beneficent legislation w fiich accepts the obedience of the good citizen, but is powerless to en- force the law against the recalcitrant ? Under this law, the author- ity of the courts would be reduced to a mere "power of conten- tion." * * * Reading the Constitution of the state in the light of the decisions of eminent courts which we have consulted, we feel warranted in the following conclusions : That in the courts created by the Constitution there is an inher-. ent power of self-defense and self-preservatioti ; that this power may be regulated, but cannot be destroyed, or so far diminished a^ to be rendered ineffectual by legislative "enactment ; that it isa power necessarily resident in. and to be exercisedby, the court it- self, and that the vice of an act which seeks to deprive the court of this inherent power is not cured by providing for its exercise by a, jur y ; that, while the legislature has the power to rep^ulate the jn- ,, risaic fTon ot circuit, county, and corporation courts, it cannot de- stroy, while it may confine within reasonable bounds, the authority necessary to the exercise of the jurisdiction conferred^ * * * We cannot more properly conclude this opinion than by a quota- 26 THE THREE DEPARTMENTS OF GOVERNMENT tion from a great English judge: "It is. a rule founded on the rea- son of the common law that all contempts to the process of the court, to its judges, jurors, officers, and ministers, when acting in the due discharge of their respective duties, whether such con- tempts be by direct obstruction, or consequentially, — that is to say, whether they be by act or writing, — are punishable by the court itself, and may be abated instanter as nuisances to public justice. There are those who object to attachments as being contrary, in popular constitutions, to first principles. To this it may briefly be replied that they are the first principles, being founded on that which founds government and constitutes law. They are the prin- ciples of self-defense, — the vindication, not only of the authority, but of the very power of acting in court. It is in vain that the law has the right to act, if there be a power above the law which has a right to resist. The law would then be but the right of anarchy and the power of contention." Holt, on Libel, c. 9. * * * Judgment affirmed. WESTERN UNION TELEGRAPH COMPANY v. MYATT. (Circuit Court of tbe United States, District of Kansas, 1899. 98 Fed. 335.) [Application of complainant for a temporary injunction restrain- ing the Kansas court of visitation from enforcing against com- plainant certain maximum rates prescribed by it. The facts appear in the opinion.] Hook, District Judge. The act of the legislature creating -the court of visitation and defining its jurisdiction and powers, and the act fixing the maximum rates for telegraphic service, and confer- ring jurisdiction respecting telegraph companies upon the court of visitation, are parts of the same general body of legislation affect- ing public service corporations that was enacted at the special ses- sion of the Kansas legislature of 1898. * * * The exercise by the state of the power to regulate the conduct of a business affected with a public interest, and to fix and, determine, as a rule for future observance, the rates and charges for services rendered, is wholly a legislative or administrative function. The legislature may, in the first instance, prescribe such regulations, and fix definitely the tariff of rates and charges; or it may lawfully delegate the exercise of such powers, and frequently does, in mat- ters of detail, to some administrative board or body of its own creation. The establishment of warehouse commissions, boards of railroad commissioners, and the powers usually committed to them, are familiar instances of the delegation of such powers. But by whatever name such boards or bodies may be called, or by what authority they may be established or created, or however they may proceed in the performance of their duties, they are, in respect of THE THREE DEPARTMENTS OF GOVERNMENT 27 the exercise of the powers mentioned, engaged in the exercise of legislative or administrative functions as important in their charac- ter as any that are committed to the legislative branch of the gov- ernment on the subject of property and property rights. In pre- scribing regulations or rules of action under the police power of the state for the safety and convenience of the public, or in determining a schedule of rates and charges for services to be rendered, they are in no sense performing judicial functions, nor are they in any re- spect judicial tribunals. The distinction between legislative and judicial functions is a vital one, and it is not subject to alteration or change, either by legislative act or by judicial decree, for such distinction inheres in the constitution itself, and is as much a part of it as though it were definitely defined therein. When the legisla- ture has once acted, either by itself or through some supplemental and subordinate board or body, and has prescribed a tariff of rates and charges, then whether its action is violative of some constitu- tional safeguard or limitation is a judicial question, the determina- tion of which involves the exercise of judicial functions. The ques- tion is then beyond the province of legislative jurisdiction. As applied to this case, the power of the state to fix or limit the charges of telegraph companies for the transmission and delivery of telegraphic messages is a legislative one, but whether the rates so fixed or limited are unreasonable to the extent that the enforcement of their observance would amount to a deprivation of the complain- ant of its property without due process of law and a denial of the equal protection of the laws, and therefore violative of the first sec- tion of the fourteenth amendment to the constitution, is a question for the courts. * * * Jt follows, therefore, as a corollary of this doctrine, that courts have no power to prescribe a schedule of rates and charges for persons engaged in a public or quasi public service, because that is a legislative prerogative, and that the legis- lature has no power to forestall the judgment of the courts by de- claring that a tariff or schedule prescribed by it is a finality, and thus prevent an inquiry into the reasonableness thereof by the courts in a controversy properly challenging such reasonableness. The legislative prerogative is the power to make the law, to pre- scribe the regulation or rule of action. The jurisdiction of the courts is to construe and apply the law or regulation after it is made. The two functions are essentially and vitally different. In Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. 462, 702, 33 L. Ed. 970, the legislative act authorized a rail- road and warehouse commission to compel common carriers to adopt such rates and charges as the commission "shall declare to be equal and reasonable." The supreme court of the state held that the finding of the commission was final and conclusive, and that the law neither contemplated nor allowed an issue to be made, nor an inquiry to be had, as to their equality and reasonableness in 28 THE THREE) DEPARTMENTS OF GOVERNMENT fact. The supreme court of the United States held that, if this were the correct interpretation, and the decision of the state court was conclusive upon that point, the law conflicted with the Constitu- tion of the United States, because it "deprived the company of its right to a judicial investigation under the forms and with the ma- chinery provided by the wisdom of successive ages for the inves- tigation judicially of the truth of a matter in controversy, and sub- stituted therefor, as an absolute finality, the action of a railroad commission, which in view of the powers conceded to it by the state court, could not be regarded as clothed with judicial functions, or possessing the machinery of a court of justice." This decision il- lustrates to some extent the limit of the power of the legislature in respect of such matters. It cannot place its own enactments be- yond the constitutional jurisdiction of the courts. On the other hMid, as to the province of the courts, it was said in Reagan v. Trust Co., 154 U. S. 362, 397, 14 Sup. Ct. 1047, 1054, 3& Iv. Ed. 1014, 1023: "The courts are not authorized to revise or change the body of rates imposed by a legislature or a commission. They do not determine whether one rate is preferable to another, or what, under all circumstances, would be fair and reasonable as be- tween the carriers and the shippers. They do not engage in any mere administrative work. But still there can be no doubt of. their power and duty to inquire whether a body of rates prescribed by a legislature or a commission is unjust and unreasonable, and such as to work a practical destruction to rights of property, and, if found so to be, to restrain its operation." * * * In the Express Cases, 117 U. S. 1, 29, 6 Sup. Ct. 628, 29 L. Ed. 791, 803, the court, in speaking of the action of the trial court in fixing and regulating the terms upon which the railroad company and the express company should do business, said : "In this way^ as it seems to us, the court has made an arrangement for the busi- ness intercourse of these companies, such as, in its opinion, they ought to have made for themselves. * * * The regulation of matters of this kind is legislative in its character, not judicial. To what extent it must come, if it comes at all, from congress, and to- what extent it may come from the states, are questions we do not now undertake to decide; but that it must come, when it does- come, from some source of legislative power, we do not doubt." In Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co., 110 U. S. 682, 4 Sup. Ct. 192, 28 L. Ed. 297, the court said : "A court of chancery is not, any more than is a court of law, clothed with legis- lative power. It may enforce, in its own appropriate way, the spe- cific performance of an existing legal obligation arising out of con- tract, law, or usage, but it cannot create the obligation."^ * * * In Interstate Commerce Commission v. Cincinnati, N. O. & T. P. R. Co., 167 U. S. 499, 17 Sup. Ct. 900, 42 L. Ed. 243, Mr. Justice THE THREE DEPARTMENTS OF GOVERNMENT 29 Brewer, in delivering the opinion of the court, said: "It is one thing to inquire whether the rates which have been charged and collected are reasonable, — that is a judicial act; but an entirely dif- ferent thing to prescribe rates which shall be charged in the future, — that is a legislative act." The foregoing will serve to illustrate sufficiently the line of de- markation between legislative and judicial functions as respects the subject-matter under consideration. * * * What, then, is the nature of the powers conferred upon the court of visitation? It is apparent from even a cursory examination of those parts of the act of the legislature which define the primary powers and jurisdiction of that body that they are largely of a legis- lative or administrative character, and such as do not pertain to the functions of a court. It is difficult to define the precise difiference between those that are legislative and those that are administra- tive. It is unnecessary, however, to do so in this case, for it is im- material whether the powers of that court, so called, aside from those that ^re judicial, are of the one character or of the other, or are a blending of both. A court does not (to use the language of the act) "classify freight," nor "require the construction and main- tenance of depots, switches, side tracks, stock yards, cars, and other facilities for the. public convenience," nor "regulate crossings and intersections of railroads," nor "regulate the operation of trains" over such crossings and intersections, nor "prescribe rules concern- ing the movements of trains to secure the safety of employes and the public," nor "require the use of improved appliances and meth- ods to avoid accidents and injuries to persons," nor "apportion transportation charges among connecting carriers," nor "regulate charges for part car-load and mixed car-load lots of freight, includ- ing live stock," nor prescribe what rates of transportation of freight and passengers shall be charged. The regulation of such matters is legislative in its character, not judicial. The Express Cases, supra. Of course, courts of chancery, in the exercise of their equity ju- risdiction, may, and frequently do, through the medium of re- ceivers, appointed by them, exercise some of such powers in the administration of property which is the subject-matter of litiga- tion in such courts, and especially where, in order to preserve the value of such property while it is in the possession of the court, it is necessary to continue the operation thereof, and maintain it as a going concern. But it is not in such sense that these powers were conferred upon the court of visitation. Courts also have the undoubted power to determine some of these matters, if they prop- erly lie in the road to the ultimate adjudication of other existing controversies concerning which the jurisdiction of the court has been invoked; as, by way of illustration, where, in litigation over the destruction of life or property in a railroad accident, it be- 30 THE THREE DEPARTMENTS OF GOVERNMENT comes material to ascertain whether the company used proper ap- pliances and methods to avoid such an occurrence. Nor is it to this end that the powers mentioned were conferred upon the court of visitation. The exercise of the powers granted contemplates the prescribing of rules and regulations for future guidance, and the possession of such powers by the court of visitation makes it one of the potential agencies of the legislative department of the state. To use the expression of a learned justice of the supreme court, the court of visitation, in respect of such functions, is "an active, seeking, supervising body; the eye and the activity of the state." As to such powers and duties the court of visitation is not, and cannot be, a court. Practically all of the powers then pos- sessed by the board of railroad commissioners of Kansas, which was purely an administrative body, were conferred upon the court of visitation, and as an evidence of the legislative purpose and intent the then existing laws relating to the appointment, powers, and duties of the board of railroad commissioners were, by act of the legislature, repealed a few days after the passage of the act creating the court of visitation. * * * It was argued at the bar on behalf of the defendants that the powers conferred upon the court of visitation are judicial in their character, for the reason that the law contemplates an investiga- tion and consideration on the part of the court before final action is had; and it is particularly recalled that such contention was made with reference to paragraphs 8 and 9 of section 8 of the act, which authorize the court of visitation to "prescribe rules con- cerning the movements of trains to secure the safety of employes and the public, and to require the use of improved appliances and methods- to avoid accidents and injuries to persons." Investiga- tion as a precedent to action is not exclusively an attribute of a judicial proceeding. Counsd confounds the usual legislative in- quiry which precedes the passage of laws with the judicial con- sideration of a controversy in a court of justice. It certainly would not be claimed that the hearing and consideration by com- mittees of legislative bodies of the views and opinions of men having special knowledge of matters to be afiEected by proposed legislation constitute in any sense the exercise of judicial func- tions, or that such committees are judicial tribunals. Nor does it follow that, because the exercise of the powers conferred upon the court of visitation requires the use of judgment and discretion, such powers are judicial in their nature, as that would make every executive act and legislative act requiring judgment and discre- tion a judicial act. To use the language of the supreme court of Kansas in The Auditor v. Railroad Co., 6 Kan. 509, 7 Am. Rep. 575 : "It certainly could not be so in the sense in which our Con- stitution uses the term, or it would, of necessity, obliterate the lines by which the framers of that instrument sought to keep THE THREE DEPARTMENTS OF GOVERNMENT 31 separate and distinct the three branches of our government." As was said in Re Huron, 58 Kan. 156, 48 Pac. 576, 36 L. R. A. 824, 62 Am. St. Rep. 614: "Not every one who hears testimony and exercises discretion and judgment in a matter submitted to him is necessarily a judicial officer." Counsel say : "The decision of a question which may arise be- tween different railroad companies as to how much of a certain charge each shall have is as much a judicial function as to decide how much of an estate each of the heirs shall receive." That may be true where there is such a controversy pending in a court be- tween the railroad companies themselves, but that is not the sense in which the power is conferred upon the court of visitation. The intent of the act of the legislature was, not to authorize the ad- judication of distinct controversies of that character between con- tending railroad companies, but, instead thereof, the laying down of a rule in behalf of the state and the public, and the securing of the future obedience thereto by the imposition of fine and im- prisonment. Is not that process legislation, and is not the result a regulation or a law? The fact that the legislature denominated the tribunal a court is not conclusive as to its true character, nor as to the nature of the jurisdiction and powers conferred upon it. That question is not determined by the terminology employed in the act, although the legislative purpose and intent may be evidenced thereby, but it is determined rather by the ascertainment of the essential nature of the jurisdiction and powers themselves. The Constitution of the state of Kansas authorizes the creation of courts inferior to the supreme court by act of the legislature, and, by necessary im- plication, the defining of the jurisdiction of the courts so created. Article 3, § 1. Nevertheless such jurisdiction must, in all essential particulars, be judicial in its character, and the constitutional au- thority for other courts than those specifically named in the Con- stitution must be so construed and limited. Under the Constitu- tion, the legislature may not create a court for the exercise of its own legislative functions, or for the performance of purely admin- istrative or executive duties; and though a tribunal, as consti- tuted by legislative act, may be denominated a court, may possess a seal, and be clothed with, the usual and customary vesture of a judicial tribunal, yet its real character is determined by its juris- diction and the functions it is empowered to exercise. The legis- lature may create a court of visitation, but it can only be a court in respect of matters of a judicial nature, and such as are properly incidental thereto. It is clear, however, that it was the intention of the legislature in the enactment of the law to confer certain judicial powers upon the court of visitation in respect of the same matters over which that court was authorized to exercise legis- lative and administrative functions. It was clearly the legislative 32 THE THREE DEPARTMENTS OF GOVERNMENT intent to confer upon the court of visitation not only the power to prescribe rules and regulations for the government of railroad and telegraph companies in their relations to the public and to each other, but also the power to pass judicially upon the validity of such rules and regulations, to render judgment accordingly, and full power to execute their orders and judgments. By the lan- guage of the act under consideration, the court of visitation can prescribe a tariff of rates and charges, judicially determine the reasonableness thereof, and then enforce their judicial determina- tions in as radical and complete a method as could be devised. Concisely stated, the court of visitation may make laws, sit ju- dicially upon their own acts, and then enforce their enactments which have received their judicial sanction. Can this be done? * * * Counsel also contend that there is no provision of the Constitu- tion of the state of Kansas inhibiting the commingling of legisla- tive, judicial, and executive powers, and the conferring by the legislature of the functions of one department upon the other. * * * But there is no such omission in the Constitution of Kansas. It provides as follows : Article 1, § 1 : "The executive department shall consist of a governor, lieutenant governor, secre- tary of state, auditor, treasurer, attorney general and superintend- ent of public instruction," etc. Article 2, § 1: "The legislative power of this state shall be vested in a house of representatives and senate." Article 3, ,§ 1 : "The judicial power of this state shall be vested in a supreme court, district courts, probate courts, justices of the peace, and such other courts inferior to the supreme court as may be provided by law," etc. That, in a broad sense, the powers of one of these departments shall not be conferred upon either of the others, is not only within the true spirit of these provisions, but also substantially within the letter thereof; and the addition thereto of an express prohib- itory declaration, such as is contained in the Constitutions of some of the states, that the powers of one department shall not be ex- ercised by another, would add very little to their effect, so far as concerns the question under consideration. The universal doc- trine of American liberty under written Constitutions requires the distribution of all the powers of government among three depart- ments, — legislative, judicial, and executive, — and that each, within its appropriate sphere, be supreme, co-ordinate with, and inde- pendent of, both the others. * * * There is a full accord among elementary writers and publicists who treat of the growth and development of the principles of an enlightened government and the relations between the state and the individual. Dr. Paley says : "The first maxim of a free state is that the laws be made by one set of men and administered by THE THREE DEPARTMENTS OF GOVERNMENT 33 another; in other words, that the legislative and judicial charac- ters be kept separate." Moral Philosophy, bk. 6, c. 8. Blackstone says : "In this distinct and separate existence of the judicial power in a peculiar body of men, nominated, indeed, but not removable at pleasure, by the crown, consists one main pre- servative of the public liberty, which cannot subsist long in any state unless the administration of common justice be in some de- gree separated both from the legislative and also from the execu- tive power. Were it joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law, which, though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an overbalance for the legislative." 1 Bl. Comm. "269. Baron Montesquieu writes: "When the legislative and execu- tive powers are united in the same person, or the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty of the judiciary power if it be not separated from the leg- islative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control ; for the judge would be the legislator. Were it joined to the ex- ecutive power, the judge might behave with violence and oppres- sion. There would be an end of everything were the same man, or the same body, whether of nobles or of the people, to exercise these three powers, — that of enacting" laws, that of executing the public resolutions, and of trying the causes of individuals." Spirit of Laws, bk. 11, c. 6. It is true that this is ancient doctrine, but it serves no ill pur- pose to renew familiarity therewith, especially in times when it is claimed that the complexity of commercial affairs affords sufficient cause to either undermine or openly destroy those safeguards that are deemed so essential to the permanency of a free government. In the distribution of the powers of government between the three departments the federal Constitution is as general in its pro- visions as that of the state of Kansas. There is the same absence of any positive and specific prohibition against the conferring of the powers of the one upon the other. In Kilbourn v. Thompson [103 U. S. 191, 26 L. Ed. 377] it was said: "It is believed to be one of the chief merits of the American system of written consti- tutional law that all the powers intrusted to government, whether state or national, are divided into the three grand departments, the executive, the legislative, and the judicial; that the functions appropriate to each of these branches of government shall be Hau. Casks Const.Ii. — 3 34 THE THREE DEPAETMBNTS OF GOVERNMENT vested in a separate body of public servants, and that the perfec- tion of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted, to encroach upon the powers confided to the others, but that each shall, by the law of its creation, be limited to the exercise of the powers appropriated to its own department, and no other. * * * The Constitution declares that the ju- dicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress may, from time to time, ordain and establish. If what we have said of the divi^ sion of the powers of the governirient among the three depart- ments be sound, this is equivalent to a declaration that no judicial power is vested in the congress, or either branch of. it, save in the cases specifically enumerated to which we have referred." * * * The decisions of the supreme court of Kansas upon the inter- pretation of the fundamental law of the state in regard to this question- and the application thereof to legislative enactments are to the same effect, and in such matters they are binding upon this court. * * * [Here follow quotations from In re Huron, 58 Kan. 152, 48 Pac. 576, 36 L. R. A. 824, 62 Am. St. Rep. 614, In re Sims, 54 Kan. 1, 37 Pac. 135, 25 L. R. A. 110, 45 Am. St. Rep. 261, and Auditor v. Ry. Co., 6 Kan. 500, 7 Am. Rep. 575.] Following the decisions of the highest court in the state, I am therefore con- strained to hold that the act of the legislature is violative of the provisions of the Constitution of the state of Kansas. * * * Temporary injunction granted.* i The Virginia Constitution of 1902 provided (sections 155, 156) for a Cor- poration Commission in which various powers were united. Of this it was said bv Harrison, J., in Winchester & S. Ry. Co. v. Commonwealth, 106 Va. 264, 267-270, 55 S. E. 692, 693 (1906) [approved in Prentls v. Atlantic Coast Line Co., 211 TJ. S. 210, 225, 29 Sup. Ct. 67, 53 L. Ed. 150 (1908)] : "This court has recognized the validity of the State Corporation Commis- sion as a legally constituted tribunal of the state, clothed with legislative, judicial, and executive powers. Atlantic Coast Line v. Commonwealth, 102 Va. 599, 46 S. E. 911; Norfolk, etc., Co. v. Commonwealth, 103 Va. 294, 49 S. E. 39. In the last-named case, at page 295 of 103 Va., page 41 of 49 S. E., it is said: 'The State Corporation Commission, created by constitutional au- thority, is the instrumentality through which the state exercises its govern- mental power for the regulation and control of public service corporations. For that purpose it has been clothed with legislative, judicial, and executive powers.' * * * [Here follow references to the exercise of both legislative and judicial powers by the British House of Lords ; to Calder v. Bull, 3 Ball. 386, 894, 395, 1 L, Ed. 648, denying that the federal Constitution forbade a state legislature to exercise judicial functions, as by granting new trial ; and to Satterlee v. Matthewson, 2 Pet. 380, 413, 7 L. Ed. 458.] "The doctrine that it is competent for a state to unite in one board or tribunal some of the legislative, executive, and judicial powers of the govern- ment, as well as the, further proposition, that when a state does this, it vio- lates no prohibition of the federal Constitution, and that any such question is one for the determination of the state, its action in the matter being ac- THE FEDEBAL EXECUTIVB 35 THE FEDERAL EXECUTIVE* STATE OF MISSISSIPPI v. JOHNSON. (Supreme Court of United States, 1867. 4 Wall. 475, 18 L. Ed. 437.) [Original prbceeding to enjoin the enforcement in Mississ ippi of certain federal statutes providin ^"~for the ^vernment bv mili- tary commanders under aut hority o f Congress of £ertam_of the^ Southern states lately in rebellion. President Johnson tad vetoed them as unconstitutional, and they had been passed over his veto.] Mr. Chief Justice Chase. A motion was made, some days since, in behalf of the state of Mississippi, for leave to file a bill in the name of the state, praying this court perpetually to enjoin and restrain Andrew Johnson, President of the United States, and E. O. C. Ord, general commanding in the district of Mississippi and Arkansas, from executing, or in any manner carrying out, certain acts of Congress therein named. The acts referred to are those of March 2 and March 23, 1867, commonly known as the Reconstruc- tion Acts. The Attorney General objected to the leave asked for, upon the ground that no bill which makes a President a defendant, and seeks an injunction against him to r estrain t he performance of his duties as President, should be aiiowea to be iiled in th is court. This point has been fully argued, and we will now dis- pose of it. cepted as final, is well supported by the more recent case of Dreyer v. Illinois, 187 U. S. 71, 84, 23 Sup. Ct. 28, 32 (47 L. Ed. 79) in which Mr. Justice Harlan, delivering the unanimous opinion of the court, says: ' Whether the legislative^ pa ., _ . ... . ■ , ing. tlgl'Ltllh lo anotner aepartment of government, is tor the determination of the state, and lt§ fletermination one way or tne otner cannot be an eie^ ment in Ihfe llUJLUfy Whether the due, pl'0-lits nf the ppnple of the state, it would be in the power of Congress to apply the proper remedv. Ent the rniirts must administer the law as they find it_. The remaining question is, whether the defendants, acting under military orders issued under the authority of the government, were justified in breaking and entering the plaintiff's house. In relation to the act of the legislature declaring martial law, it is not neces- sary in the case before us to inquire to what extent, nor under what circumstances, that power may be exercised by a state. Un- questionably, a military government, established as the permanent government of the state, would not be a republican government, and it would be the duty of Congress to overthrow it. But the law of Rhode Island evidently contemplated no such government. It was intended merely for the crisis, and to meet the peril in which the existing government was placed by the armed resistance to its authority. It was so understood and construed by the state authorities. And, unquestionably, a state may use its military power to put down an armed insurrection, too strong to be con- trolled by th e civil authority^ The power is essential to the exist- ence of every government, essential to the preservation of order and free institutions, and is as necessary to the states of this Union, as to any other government. The state itself must determine what degree of force the crisis demands. And if the government of 42 THE FEDEBAL EXECUTIVE Rhode Island deemed the armed opposition so formidable, and so ramified throughout the state as to require the use of its military force and the declaration of martial law, we see no ground upon which this court can question its authority. It was a state of war, and the established government resorted to the rights and usages of war to maintain itself, and to overcome the unlawful opposi- tion. _And in that state of things the officers engaged in its military service mieht lawfuUv arrest any one, who, from the inTormation before them, they had reasonable grounds to believe was engaged, in the insurrection : and might order a house tn be forcibly entered and searched, when there were reasonable grounds for supposing he might be there concealed. Without the power to do this, mar- tial law and the military array of the government would be mere parade, and rather encourage attack than repel it. No more force, however, can be used than is necessary to accomplish the object. And if the power is exercised for the purposes of oppression, or any injury wilfully done to person or property, the party by whom, or by whose order, it is committed, would undoubtedly be answer- able. * * * Much of the argument on the part of the plaintiff turned upon political rights and political questions, upon which the court has been urged to express an opinion. We decline doing so. The high power has been conferred on this court of passing judgment upon the acts of the state sovereignties, and of the legislative and execu- tive branches of the federal government, and of determining wheth- er they are beyond the limits of power marked out for them re- spectively by the Constitution of the United States. This tribunal, therefore, should be the last to overstep the boundaries which limit its own jurisdiction. And while it should always be ready to meet any question confided to it by the Constitution, it is equally its duty not to pass beyond its appropriate sphere of action, and to take care not to involve itself in discussions which properly belong to other forums. No one, we believe, has ever doubted the proposi- tion that, according to the institutions of this country, the sover- eignty in every state resides in the people of the state, and that they may alter and change their form of government at their own pleasure. But whether they have changed it or not, by abolishing an old government , and establishing a new one m its place, is a q uestion to be settlea py tne political powe r. Ana when that power has decided, the courts are bound to takenotice of its decision, and" to follow^it Judgment affirmed. FEDERAL JURISDICTION ^3 JURISDICTION OF FEDERAL COURTS » OSBORN ET AL. V. PRESIDENT, etc., OF THE BANK OF THE UNITED STATES. (Supreme Court of United States, 1824. 9 Wheat. 738, 6 L. Ed. 204.) [Appeal from the federal Circuit Court for Ohio. The Bank of the United States, chartered by Congress, brought s uit in said courts as authorized by its charter, to restrain (Jsborn and others, state officers, from collecting a state tax, upon the bank. The defend- ants appealed from a decree against them. J Mr. Chief Justice Marshai^l. * * * We will now consider the constitutionality of the clause in the act of incorporation, whic^ authorizes the bank to sue in the federal courts. * * * The third article [of the Constitution] declares, "that the judi- cial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." This clause en- ables the Judicial Department to receive jurisdiction to the full extent of the Constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capa- ble of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then be- comes a case, and the Constitution declares that the judicial power shall extend to all cases arising under the Constitution, laws, and treaties of the United States. The suit of the Bank of the United States v. Osborn an4 others is a case, and the question is. whether it arises under a law of the United States. The appellants contend that it does not, because several questions may arise in it which depend on the general I principles of the law, not on any act of Congress. If this were ( sufficient to withdraw a case from the jurisdiction of the federal courts, almost every case, although involving the construction of' a. law, would be withdrawn; and a clause in the Constitution re-^ lating to a subject of vital importance to the government, and ex- -^ pressed in the most comprehensive terms, would be construed to mean almost nothing. There is scarcelv any case every part of which depends on t he Constitution, laws , or treaties of the United .States^ * ^ ^ '~ ~~. '. '. " In those cases in which original jurisdiction is given to the Su- preme Court, the judicial power of the United States cannot be 1 For discussion of principles, see Black, Ctonst. Law (3d Ed.) §| 89, 91, 94, 95. 44 FEDERAL JURISDICTION exercised in its appellate form. In every other case the power is to be exercised in its original or appellate form, or both, as the wisdom of Congress may direct. With the exception of these cases in which original jurisdiction is given to this court, there is none to which the judicial power extends, from which the original juris- diction of the inferior courts is excluded by the Constitution. Orig- inal jurisdiction, so far as the C onstitution gives a rule, is coexten- sive with the ludiciai power ! We hnd in the Constitution no pro- hibition to its exercise, in every case in which the judicial power can be exercised. It would be a verv bold construction to say that this power could be applied in its a ppellate form only, to the most important class ot cases to which it is appiicapie. ~ The Constitution establishes the Supreme Court, and defines its jurisdiction. It enumerates cases in which its jurisdiction is orig- mal and exclusive; and then defines that which is appellate; but does not insinuate that, in any such case, the power cannot be ex- ercised in its original form by courts of original jurisdiction. It is not insinuated that the judicial power, in cases depending on the character of the cause, cannot be exercised in the first instance in the courts of the Union, but must first be exercised in the tri- bunals of the state; tribunals over which the government of the Union has no adequate control, and which may be closed to any claim asserted under a law of the United States. We perceive, then, no ground on which the proposition can be maintained, that ^ongressis incapable of giving the circuit courts original jurisdi~ tion, in any case to which the appellate jurisdiction extends . We ask, then, if it can be sufficient to exclude this jurisdiction, that the case involves questions depending on general principles? A cause may depend on several questions of fact and law. Some of these may depend on the construction of a law of the United States; others on principles unconnected with that law. If it be a sufficient foundation for jurisdiction, that the title or right set up by the party, may be defeated by one construction of the Constitu- tion or law of the United States, and sustained by the opposite con- struction, provided the facts necessary to support the action be made out, then all the other questions must be decided as inci- dental to this, which gives that jurisdiction. Those other ques- tions cannot arrest the proceedings. Under this construction, the judicial power of the Union extends efifectively and beneficially to that most important class of cases, which depend on the char- acter of the cause. On the opposite construction, the judicial power never can be extended to a whole case, as expressed by the Con- stitution, but to those parts of cases only which present the par- ticular question involving the construction of the Constitution or the law. We say, it never can be extended to the whole case, because, if the circumstance that other points are involved in it shall disable Congress from authorizing the courts of the Union FEDERAL JURISDICTION 45 to take jurisdiction of the original cause, it equally disables Con- gress from authorizing those courts to take jurisdiction of the whole cause, on an appeal, and thus will be restricted to a single question in that cause ; and words obviously intended to secure to those who claim rights under the Constitution, laws, or treaties of the United States, a trial in the federal courts, will be restricted to the insecure remedy of an appeal upon an insulated point, after , it has received that shape which may be given to it by another tri- bunal, into which he is forced against his will. We think, then, that when a question to which the judicial power of the Union is extended bv the Constitution, forms an ingredient of the original cause, it is in the power of Congress to give the circuit courts jurisdiction of that cause, although other questions of fact or of law may be involved in it. The case of the bank is, we think, a very strong case of this de- scription. The charter of incorporation not only creates it, but gives it every faculty which it possesses. The power to acquire rights of any description, to transact business of any description, to make contracts of any description, to sue on those contracts, is given and measured by its charter, and that charter is a law of the United States. This being can acquire no right, make no contract, bring no suit, which is not authorized by a law of the United States. It is not only itself the mere creature of a law, but all its actions and all its rights are dependent on the same law. Can a being, thus con- stituted, have a case which does not arise literally, as well as sub- stantially, under the law? Take the case of a contract, which is put as the strongest against the bank. When a bank sues, the first question which presents itself, and which lies at the foundation of the cause, is, has this legal entity a right to sue ? Has it a right to come, not into this court particularly, but into any court i '1 his depends on a law of the United States., The next question is, has this being a right to make tills particular contract? If this question be decided in the nega- tive, the cause is determined against the plaintiff; and this ques- tion, too, depends entirely on a law of the United States. These are important questions, and they exist in every possible case. The ' right to sue, if decided once, is decided forever; but the power^ of Congress was exercised antecedently to the first decision on that right, and, if it was constitutional then, it cannot cease to be • so because the particular question is decided. It may be revived at the will of the party, and most probably would be, renewed, were the tribunal to be changed. But the question respecting the' right to make a particular contract, or to acquire a particular property, or to sue on account of a particvilar injury, belongs to every particular case, and may be renewed in every case. The question forms an original ingredient in every cause. Whether it be in fact relied on or not, in the defence, it is still a part of the 46 FEDERAL JURISDICTION cause, and may be relied on. The right of the plaintiff to sue cannot depend on the defence which the defendant may choose to set up. His right to sue is anterior to that defence, and must depend on the state of things when the action is brought. The questions which the case involves, then, must determine its char- acter, whether those questions be made in the cause or not. * * * The clause giving the bank a right to sue in the circuit courts of the United States stands on the same principle with the acts authorizing officers of the United States who sue in their own names, to sue in the courts of the United States. The Postmaster- General, for example, cannot sue under that part of the Consti- tution which gives jurisdiction to the federal courts in consequence of the character of the party, nor is he authorized to sue by the Judiciary Act (1 Stat. 73). He comes into the courts of the Union under the authority of an act of Congress, the constitutionality of which can only be sustained by the admission that his suit is a case arising under a law of the United States. If it be said that it is such a case, because a law of the United States authorizes the contract and authorizes the suit, the same reasons exist with re- spect to a suit brought by the bank. That, too, is such a case; because that suit, too, is itself authorized, and is brought on a con- tract authorized by a law of the United States. It depends abso- lutely on that law, and cannot exist a moment without its au- thority. If it be said that a suit brought by the bank may depend in fact altogether on questions unconnected with any law of the United States, it is equally true, with respect to suits brought by the Post- master-General. The plea in bar may be payment, if the suit be brought on a bond, or non assumpsit, if it be brought on an open account, and no other question may arise than what respects the complete discharge of the demapd. Yet the constitutionality of the act authorizing the Postmaster-General to sue in the courts of the United States has never been drawn into question. It is sustained singly by an act of Congress, standing on that construction of the Constitution which asserts the right of the legislature to give orig- inal jurisdiction to the circuit courts, in cases arising under a law of the United States. The clause (1 Stat. 322), in the patent law, authorizing suits in the circuit courts, stands, we think, on the same principle. Such a suit is a case arising under a law of the United States. Yet the defendant may not, at the trial, question the validity of the patent, or make any point which requires the construction of an act of Congress. He may rest his defence exclusively on the fact that he has not violated the right of the plaintiff. That this fact be- comes the sole question made in the cause cannot oust the juris- diction of the court, or establish the position, that the case dOes not arise under a law of the United States. FEDERAL JURISDICTION 4' It is said that a clear distinction exists between the party an( the cause ; that the party may originate under a law with which thi cause has no connection; and that Congress may, with the sami propriety, give a naturalized citizen, who is the mere creature o a law, a right to sue in the courts of the United States, as giv( that right to the bank. This distinction is not denied ; and if th( act of Congress was a simple act of incorporation, and containec nothing more, it might be entitled to great consideration. Bu the act does not stop with incorporating the bank. It proceeds t( bestow upon the being it has made, all the faculties and capacitiei which that being possesses. Every act of the bank grows out o this law, and is tested by it. To use the language of the Consti tution. everv act of the bank arises out of this law. A naturalized citizen is, indeed, made a citizen under an act o Congress, but the act does not proceed to give, to regulate, or t( prescribe his capacities. He becomes a member of the society possessing all the rights of a native citizen, and standing, in thi view of the Constitution, on the footing of a native. The Consti tution does not authorize Congress to enlarge or abridge those rights. * * * There is, then, no resemblance between the ac incorporating the bank and the general naturalization law (2 Stat 153). * * * Decree affirmed. [Johnson, J., gave a dissenting opinion.] HANS V. LOUISIANA. (Supreme Court of United States, 1890. 134 U. S. 1, 10 Sup. Ct. 504, 33 L Ed. 842.) [Error to the federal Circuit Court for the Eastern District o: Louisiana. In 1874 Louisiana issued certain bonds, and by con stitutional amendment pledged the proceeds of a certain specia tax for their payment. In 1879 the new state constitution re- pudiated these obligations and forbade state officers to fulfil them. Hans, a citizen of Louisiana, sued the state in the abov( federal <;ni]rt to recover the interest due upon some of said bond; held by him, alleging that said provisions of the new constitutioi violated the federal Constitution by impairing the obligation o: these bond contracts. The state denied the court's jurisdictior and the suit was dismissed .1 Mr. Justice Bradley. * * * The question is presented whetL er a state can be sued in a circiiit~cburt of the United States b^ one of its own citizens upon a suggestion that the case is one tha" arises under the Constitution or laws of the United States ! The ground taken is that under the Constitution, as well as un der the act of Congress passed to carry it into effect, a case ii FEDERAL JURISDICTION 4 within the iurisdictinn nf the federal courts, without r pp-arrl tn the character of the parties, if it arises under the Constitution or laws of the United States, or. which is the same thing, if it necessarily, involves a question under said Constitution or laws. The lan- guage relied on is that clause of the third article of the Constitu- tion, which declares that "the judicial power of the United States shall extend to all cases in law and equity arising under this Con- stitution, the laws of the United States, and treaties made, or - which shall be made, under their authority ;" and the correspond- 'ing clause of the act conferring jurisdiction upon the circuit court, which, as found in the act of March 3, 1875, is as follows, to wit: "That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, * * * arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority." , It is said t hat thes e jurisdictional clauses make no exception arising I'rom the character ol the parties, and therefore that a state can claim no exemption from suit, if the case is really one arising under the Constitution, laws, or treaties of the United States . It is conceded that, where the jurisdiction depends alone upon the character of the parties, a controversy between a state and its own citizens is not embraced within it; but it is contended that, though jurisdiction does not exist on that ground, it nevertheless does exist if the case itself is one which necessarily involves a fed- eral question; and, with regard to ordinary parties, this is un- doubtedly true. The question now to be decided is whether it is true where one of the parties is a state, and is sued as a defendant by one of its own citizens. That a state cannot be sued by a citizen of another state, or of . a foreign state, on the mere ground that the case is one arising under the Constitution or laws of the Unit ed States, is clearlv es- ' tablished by the decisions of this court in several recent cases . ^Louisiana v. Jumel, 107 U. S. 711, 2 Sup. Ct. 128, 27 L,. Ed. 448* 'iHagood V. Southern, 117 U. S. 52, 6 Sup. Ct. 608, 29 L. Ed. 805; J In re Ayers, 123 U. S. 443, 8 Sup. Ct. 164, 31 h. Ed. 216. * * * ,. This court held that the suits were virtually against the states Y themselves, and were consequently ' violative of the eleventh amendment of the Constitution, and could not be maintained. It was not denied that they presented cases arising under the Con- stitution; but, notwithstanding that, they were held to be pro- hibited by the amendment referred to. In the present case the plaintiff in error contends that he. beinsf a citizen of Lou isiana, is not embarrassed by the obstacle of the eleventh amendment, inasmuch as that amendment only prohibits suits against a state which are brought by the citizens of another FEDERAL JURISDICTION 49 State, or by citizens or subjects of a foreig[n state . It is true the amendment does so read, and, if there were no other reason or ground for abating his suit, it might be maintainable ; and then we should have this anomalous result, that, in cases arising under the Constitution or laws of the United States, a state may be sued in the federal courts by its own citizens, though it cannot be sued for a like cause of action by the citizens of other states, or of a foreign state; and may be thus sued in the federal courts, al- though not allowing itself to be sued in its own courts. If this is the necessary consequence of the language of the Constitution and the Jaw, the result is no less startling and unexpected than was the original decision of this court, that, under the language of the Constitution and of the judiciary act of 1789, a state was liable to be sued by a citizen of another state or of a foreign coun- try. That decision was made in the case of Chisholm v. Georgia, 2 Dall. 419, 1 Iv. Ed. 440, and created such a shock of surprise throughout the country that, at the first meeting of Congress thereafter, the eleventh amendment to the Constitution was almost unanimously proposed, and was in due course adopted by the leg- islatures of the states. This amendment, expressing the will of the ultimate sovereignty of the whole country, superior to all legislatures and all courts, actually reversed the decision of the supreme court. It did not in terms prohibit suits by individuals against the states, but declared that the Constitution should not be construed to import any pow- er to authorize the bringing of such suits. The language of the amendment is that "the judicial power of the United States shall not be construed to extend to any suit, in law or equity, com- menced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." The supreme court had construed the judicial power as extending to such a suit, and its decision was thus overruled. The court it- self so understood the effect of the amendment, for after its adop- tion Attorney General Lee, in the case of Hollingsworth v. Vir- ginia (3 Dall. 378, 1 L,. Ed. 644), submitted this question to the court, "whether the amendment did or did not supersede all suits depending, as well as prevent the institution of new suits, against any one of the United States, by citizens of another state." Tilgh- man and Rawle argued in the negative, contending that the juris- diction of the court was unimpaired in relation to all suits insti- tuted previously to the adoption of the amendment. But on the succeeding day, the court delivered an unanimous opinion "that, the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a state was sued by the citizens of another state, or by citizens or subjects of any foreign state." Hall Cases Const.L.^ 50 FEDERAL JURISDICTION This view of the force and meaning of the amendment is im- portant. It shows that, on this question of the suability of the states by individuals, the highest authority of this country was in accord rather with the minority than with the majority of the court in the decision of the case of Chisholm v. Georgia ; and this fact lends additional interest to the able opinion of Mr. Justice Iredell on that occasion. * * * [He] contended that it was not the intention to create new and unheard of remedies, by sub- jecting sovereign states to actions at the suit of individuals (which he conclusively showed was never done before), but only, by proper legislation, to invest the federal courts with jurisdiction to hear and determine controversies and cases, between the parties designated, that were properly susceptible of litigation in courts. I Looking back from our present stand-point at the decision in ■ Chisholm v. Georgia, we do not greatly wonder at the effect which it had upon the country. Any such power as that of authorizing (•the federal judiciary to entertain suits by individuals against the states had been expressly disclaimed, and even resented, by the great defenders of the Constitution while it was on its trial before nthe American people. As some of their utterances are directly pertinent to the question now under consideration, we deem it proper to quofe them. * * * [Here follow quotations to this effect from Hamilton in the Federalist, No. 81, and from Madison and Marshall in the Virginia convention of ratification; 3 Ell. Deb. 533, 555.] It seems to us that these views of those great advocates and de- . fenders of the Constitution were most sensible and just, and thcY i. apply equally to the present case as to that then under discussion. ' i'he letter is appealed to now, as it was then, as a ground for sustaining a suit brought by an individual against a state. The ,1 reason against it is as strong in this case as it was in that. It is "^ an attempt to strain the Constitution and the law to a construcr tion never imagined or dreamed of. Can we suppose that, when.. the eleventh amendment was adopted, it was understood to be left open for citizens of a state to sue their own state in the federal ^ courts^ while the idea of suits bv citizens of other states, or of I. foreign states, was indignantly repelled ? Suppose that Congress, when proposing the eleventh amendment, had appended to it a proviso that nothing therein contained should prevent a state from being sued by its own citizens in cases arising under the Constitu- tion or laws of the United States, can we imagine that it would have been adopted by the states? The supposition that it would is almost a n absurdity nn its fare. — — — The truth is that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United FEDERAL JURISDICTION 51 States. Some things, undoubtedly, were made justifiable which were not known as such at the common law; such, for example, as controversies between states as to boundary lines, and other questions admitting of judicial solution. * * * Qf other con- troversies between a state and another state or its citizens, which, on the settled principles of public law, are not subjects of judicial cognizance, this court has often declined to take jurisdiction. See Wisconsin v. Insurance Co., 127 U. S. 265, 288, 289, 8 Sup. Ct. 1370, 32 L. Ed. 239, and cases there cited. The suability of a state, without its consent, was a thing un - known to the law . This has been so often laid down and acknowl- edged by courts and jurists that it is hardly necessary to be for- mally asserted. It was fully shown by an exhaustive examination of the old law by Mr. Justice Iredell in his opinion in Chisholm v. Georgia; and it has been conceded in every case since, where the question has, in any way, been presented. * * * [After referring to various authorities to this effect:] "It may be accepted as a point of departure unquestioned," said Mr. Jus- tice Miller in Cunningham v. Railroad Co., 109 U. S. 446, 451, 3 Sup. Ct. 292, 609, 27 L,. Ed. 992, " that neither a state nor the United States can be sued as defendant in any court in this coun- try without their consent, except in the limited class of cases in which a state may be made a party in the supreme court of the United States by virtue of the original jurisdiction conferred on this court by the Constitution." Undoubtedly a state may be sued by its own consent, as was the case in Curran v. Arkansas, 15 How. 304, 309, 14 L. Ed. 705, and in Clark v. Barnard, 108 U. S. 436, 447, 2 Sup. Ct. 878, 27 L. Ed. 780. The suit in the former case was prosecuted by virtue of a state law which the legislature passed in conformity to the Constitution of that state. But this court decided, in Beers v. Arkansas, 20 How. 527, 15 L. Ed. 991, that the state could repeal that law at any time; that it was not a contract within the terms of the Constitution prohibiting the passage of state laws impairing the obligation of a contract. * * * To avoid misapprehension, it may be proper to add that, al- though the obligations of a state rest for their performance upon its honor and good faith, and cannot be made the subjects of ju- dicial cognizance unless the state consents to be sued or comes itself into court, yet, where property or rights are enjoyed under a grant or contract made by a state, they cannot wantonly be in- ^ vaded. " While the state cannot be compelled by suit to perform _ its contracts^ anv attempt on its part to violate property or rif hts acquired under its contracts may be judicially resisted, and any. ' law impairing the obligation ot contracts under whicJi such pro~ erty or rights are held is void and powerless to affect their eniov- 52 FEDERAL JURISDICTION It is not necessary that we should enter upon an examination of the reason or expediency of the rule which exempts a sovereign state from prosecution in a court of justice at the suit of individ- uals. This is fully discussed by writers on public law. It is r enough for us to declare its existence. The legislative department ^of a state represents its polity and its will, and is called upon by ■ the highest demands of natural and political law to preserve jus- tice and judgment, and to hold inviolate the public obligations. Any departure from this rule, except for reasons most cogent, (of which the legislature, and not the courts, is the judge,) never fails in the end to incur the odium of the world, and to bring lasting injury upon the state itself. But to deprive the legislature of the power of judging what the honor and satety ot ttie state may re-:, quire, even at the expense of a temporary failure to discharge the, public debts, would be attended with greater evils than such fail: ure can cause. Judgment affirmed." [Harlan, J., concurred in the result, dissenting as to the dis- approval of Chisholm v. Georgia.] 2 In Kawananakoa v. Polyblank, 205 V. S. 349, 353, 354, 27 Sup. Ct. 526, 51 L. Ed. 834 (1907) the territory of Hawaii, upon whl^^ Cnngrfiss haii (?onffirr<>(l general legislative nowers i n lopai mattprs, waa hrfd nn t subject t o urivalf. suit witnout Its consent, Holmes. J., saving : "A sovereign Is exempt from suit, not because of any formal conception of obsolete theory, but on the logical and practical ground that there can be no legal right a.s against the aut bnrjtv that mak p.s the law nn wwoh tr^e right depenas. * * * As the ground is thus logical and practical, the doc- t rine is not confined to powers that jj^fi sf^verpip^ in the full sense of luridlcal tbeory^ but naturally Is extended to those that, in actual administration, ori^ inate and change at their will thf> law of rontract and property, from which , pergiShs witmn the jurisdiction derive their rights. A suit presupposes that tne aetendants are subject to the law invoked. Of course it cannot be main- tained unless they are so. But that is not the case with a territory of the United States, because the territory itself is the fountain from which rights or- dinarily flow. It Is true that Congress might intervene, just as, in the case of a state, the Constitution does, and the power that can alter the Constitution might. But the rights that exist are not created by Congress or the Constitu- tion, except to the extent of certain limitations of power. The District of Columbia is different, because there the body of private rights is created and controlled by Congress, and not by a legislature of the District. [Metropol. Ry. V. Dist. Col., 132 U. S. 1, 10 Sup. Ct. 19, 33 L. Ed. 231 (1889).]" The same has been held regarding Porto Rico. Porto Rico v. Eosaly y Castillo, 227 U. S. 270, 33 Sup. Ct. 352, 57 L. Ed. 507 (1913). ZjWo>«vS*«^C*/.v,,»Aft-*:wit principal question in this case that the state of Virginia is not ^ named as a. party defendant. Whether it is the actual party , in ui the sense of the prohibition of the Constitution, must be determined /f- by a consideration of the nature of the case as presented on the whole record. * * * It is to be observed that the only personal act on the part of the petitioners sought to be restrained by the original order of June 6, 1887, in pursuance of the prayer of the bill, is the bringing of any suit under the act of May 12, 1887, against any person who had tendered tax-receivable coupons in payment of taxes due to the state of Virginia. Any such suit must, by the statute, be brought in the name of the state and for its use. * * * [Here follow arguments tending to deny the right of coupon-holders to be free from suit for taxes, provided the tender of the coupons was pre- served as a defence, and questioning the right of complainants in the injunction suit legally to object to the bringing of such tax suits against their assignees of coupons.] 54 FEDERAL JURISDICTION The substance of the bill * * * Hnes not allege any grounds of equitable relief against the individual defendants for any per- sonal wr ong committed or threatened by them. It does not charge agamst tnem m their individual character anythin^r done or threat- ened which constitutes, in contemplation of law, a violation o f personal or property rights, or a breach of contract to which they are parties. The relief sought is against the defendants, not in their individual but in their representative capacity, as ofHcers of the state of Virginia. The acts sought to be restrained are the bringing" of suits by the state of Virginia in its own name, and for its own use. If the state had been made a defendant to this bill by name, * * * [and] if a decree could have been rendered en- joining the state from bringing suits against its taxpayers, it would have operated upon the state only through the officers who by law were required to represent it in bringing such suits, viz., the pres- ent defendants, its attorney general, and the commonwealth's at- torneys for the several counties. For a breach of such an injunc- tion, these officers would be amenable to the court as proceeding in contempt of its authority, and would be liable to punishment therefor by attachment and imprisonment. The nature of the case, as supposed, is identical with that of the case as actually presented in the bill, with the single exception that the state is not named as a defendant. How else can the state L be forbidd en by judicial process to bring actions in its name, except ( by constrammg the conduct of its officers, its attorneys, and its agents ? And if all such officers, attorneys, and agents are person- , ally subjected to the process of the court, so as to forbid their act- 'ing in its behalf, how can it be said that the state itself is not sub- jected to the jurisdiction of the court as an actual and real de- *fendant? * * * The principal authority relied upon to maintain this proposition is the judgment of this court in the case of Osborn v. Bank, 9 Wheat. 738, 6 h. Ed. 204. * * * But the act of the legislature of Ohio, declared to be unconstitutional and void in that case, had for its sole purpose the levy and collection of an annual tax of $50,000 upon each office of discount and deposit of the bank of the United States within that state, to be collected, in case of re- fusal to pay, by the auditor of state by a levy upon the money, bank-notes, or other goods and chattels, the property of the bank; to seize which it was made lawful, under the warrant of the audi- ^tor, for the person to whom it was directed to enter the bank for the purpose of finding and seizing property to satisfy the same. The wron ^ e^ comnlained of and sought to be prevented by the in- junction prayed for was this threatened seizure of the property of the bank. An actual seizure thereof, in violation of the injunction, was treated as a contempt of the court, for which the parties were UMAX jfv4Ai#rvcOZ£^ JtuJMk.. FEDERAL JURISDICTION 55 attached, and the final decree of the circuit court restored the prop- erty taken to the possession of the complainant.' * * * The very ground on which it was adjudged not to be a suit against t he state, and n6t to be one in which the state was a neces-. sary party, was that the defendants personally and individually were wrong-doers, against whom the complainants had a clear rip:ht of action for the reco very of the property taken, or its value, and that, therefore, it was a case in which no other parties were necessary. The right asserted and the relief asked were against the defendants as individuals. They sought to protect themselves against personal liability by their official character as representa- tives of the state. This they were not permitted to do, because the authority under which they professed to act was void. * * * The vital principle in all such cases is that the defendants, th,ough professing to act as officers of the state, are threatening a viola- tion of the personal or property rights of the complainant, for which they are personally and individually liable. * * * [After quoting from Poindexter v. Greenhow, 114 U. S. 270, 282, 288, 5 Sup. Ct. 903, 29 L. Ed. 185 :] This principle is illustrated and enforced by the case of U. S. v. Lee. 106 U. S. 196, 1 Sup. Ct. 240, 27 L. Ed. 171.* In that case the plaintiffs had been wrongfully dispossessed of their real estate by defendants claiming to act under the authority of the United States. That authority could exist only as it was conferred by law, and as they were unable to show any lawful authority under the United States it was held that there was nothing to prevent the judgment of the court against them as individuals, for their individual wrong and trespass. This feature will be found, on an examination, to characterize every case where persons have been made defendants for acts done or threat- ened by them as officers of the government, either of a state or of the United States, where the objection has been interposed that the state was the real defendant, and has been overruled. The action has been sustained only in those instances where the act complained of, considered apart from the official authority alleged as its justification, and as the personal act of the individual defend- 3 In this case Marshall, O. J., said (9 Wheat, at pages 842, 843 [6 L. Ed. 204]): "The objection is that, as the real party cannot be brought before the court, a suit cannot be sustained against the agents of that party; and cases have been cited to show that a court of chancery will not make a decree unless all those who are substantially interested be made parties to the suit. This is certainly true where it is in the power of the plaintiff to make them parties, but if the person who is the real principal, the person who is the true source of the mischief, by whose power and for whose advantage it is done, be him- self above the law, be exempt from all judicial process, it would be subversive of the best established principles to say that the laws could not afford the same remedies against the agent employed in doing the wrong which they would afford against him could his principal be joined in the suit. It is adi mitted that the priv Jippje "f the princina l is not communicated to the agenj pT" — 4 The leading ease, the land being actually in use, under orders of the Presi- dent, as a federal fort and cemetery. 56 FBDBEAL JURISDICTION ant, constituted a violation of right for which the plaintiff was entitled to- a remedy at law or in equity against the wrongdoer in his individual character. The present case stands upon a footing altogether dififerent. Ad- mitting all that is claimed on the part of the complainants as to the breach of its contract on the part of the state of Virginia by the acts of its general assembly referred to in the bill of complaint, there is nevertheless no foundation in law for the relief- asked. For a breach of its contract by the state, it is conceded there is no remedy by suit against the state itself . This results from the eleventh amendment to the Constitution, which secures to the state immunity from suit by individual citizens of other states or aliens. This immunity includes not only direct actions for damages for the breach of the contract brought against the state by name, but all other actions and suits against it, whether at law or in equity. A bill in equity for the specific performance of the contract against the state by name, it is admitted could not be brought. In Hagood v. Southern. 117 U. S. 52, 6 Sup. Ct. 608, 29 Sup. Ct. 805, it was decided that in such a bill, where the state was not nominally a party to the record, brought against its officers and agents, having no personal interest in the subject-matter of the suit, and defend- ing only as representing the state, where "the things required by the decree to be done and perfornied by them are the very things which,, -when done and performed, constitute a performance of the alleged contract by the state," the court was without jurisdiction, because it was a suit against a state. The converse of that proposition must be equally true, becaua a it is contained in it; that is, a bill, the object of which is bv in- junction, indirectly, to compel the specific performance of the con-^ tract, by forbidding all those acts and doings which constitute breaches of the contract, must also, necessarily, be a suit against the state! J.n such a case, though the state be not nominally a party on the record, if the defendants are its officers and agents, through whom alone it can act in doing and refusing to do the things which constitute a breach of its contract, the suit is still, in substance, though not in form, a suit against the state. * * * It may be asked what is the true ground of distinction, so far as the protection of the Constitution of the United States is in- voked, between the contract rights of the complainant in such a suit, and other rights of person and of property. In these latter cases it is said that jurisdiction may be exercised against individual defendants, notwithstanding the official character of their acts, while in cases of the former description the jurisdiction is denied. The distinction, however, is obvious. The acts alleged in the bill as threatened by the defendants, the present petitioners, are viola- tions of the assumed contract between the state of Virginia and FEDERAL JURISDICTION 57 the complainants, only as they are considered to be the acts of the state of Virginia. Thp ^pfpnHantc ac inrlivirln als, not being ; - parties to that contract, are not capab le in law of commit ting a breach of it. There is no remedy lor a breach ot a contract, actual or ap- prehended, except upon the contract itself, and between those who are by law parties to it . * * * But. where the contract is be- tween the individual and the state, no action will lie against the state, and any action founded upon it against defendants who are officers of the state, the object of which is to enforce its specific performance by compelling those things to be done by the defend- ants which, when done, would constitute a performance by the state, or to forbid the doing of those things which, if done, would be merely breaches of the contract by the state, is in substance a suit against the state itself, and equally within the prohibition of the Constitution. It cannot be doubted that the eleventh amendment to the Con- stitution operates to create an important distinction between con- tracts of a state with indiyiduals and contracts between individual, parties. In the case of contracts between individuals, the reme- dies for their enforcement or breach, in existence at the time they were entered into, are a part of the agreement itself, and constitute a substantial part of its obligation. * * * It is different with contracts between individuals and a state. In respect to these, by yirtue of the eleventh amendment to the Constitution, there being no remedy by a suit against the state, the contract is substantiatly without sanction, except that which arises out of the honor and good faith of the state itself, and these are not subject to coer- cion. * * * The very object and purp'ose of the eleventh amendment were to prevent the indignity of subjecting a state to the coercive pro- cess of judicial tribunals at the instance of private parties. It was thought to be neither becoming nor convenient that the several states of the Union, invested with that large residuum of sover- eignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons, whether citizens of other states or aliens, or that the course of their public policy and the administration of their public affairs should be subject to and controlled by the mandates of judicial tribunals, without their consent, and in favor of individual inter- ests. To secure the manifest purposes of the constitutional exemp- tion guarantied by the eleventh amendment, requires that it should be interpreted, not literally and too narrowly, but fairly, and with such breadth and largeness as effectually to accomplish the sub- stance of its purpose. In this spirit it must be held to cover, not only suits brought against a state by name, but those also against its officers, agents, and representatives, where the state, though not named as such, is, nevertheless, the only real party against which 58 FEDERAL JURISDICTION alone in fact the relief is asked, and against which the judgment or decree effectively operates. But this is nnf intended in any way to impinge upon the principle which justifies suits against individual defendants, who, under color of the authority of unconstitutional legislation by the state, are guilty of personal trespasses and wrongs, nor to forbid suits against officers in their official capacity either to arrest or direct their of- ficial action by injunction or mandamus, where such suits are aur thorized by law, and the act to be done or omitted '"" p"i'''1y minis- terial, in the performance or omission of which the plaintiff has_ a legal interest. * ^ ^ Nor need it be apprehended that t he construction of the eleventh - amendment, applied in this case, will in anywise embarrass or ob- struct the execution of the laws of ttie United States, in c as es where . officers of a state are guilty of acting in violation of them under color of its authority . The government of the United States, in the enforcement of its laws, deals with all persons within its terri- r. torial jurisdiction as individuals owing obedience to its authority. The penalties of disobedience may be visited upon them without regard to the character in which they assume to act, or the nature of the exemption they may plead in justification. Nothing can be interposed between the individual and the obligation he owes to the Constitution and laws of the United States, which can shield or defend him from their just authority, and the extent and limits of that authority the government of the United States, by means of its judicial power, interprets and applies for itself. If, there- fore, an individual, acting under the assumed authority of a state, as one of its officers, and under color of its laws, comes into conflict with the superior authority of a valid law of the United States, he is stripped of his representative character, and subjected in his person to the consequences of his individual conduct. The state, has no power to impart to him any immunity from responsibilit y to the supr eme authority of the United States. * * * Petitioners discharged.^ [FiEivD, J., gave a concurring opinion, and Harlan, J., a dissent- ing one.] 6 In Pennoyer v. McConnaughy, 140 U. S. 1, 16-18, 11 Sup. Ot. 699, 35 L. Ed. 363 (1891) an Oregon statute had Illegally revoked a contract with the state under which nlai ntiff am uired rights in certain land, and plaintifC se'-„ cured an in.junctlon against the rp sale nf said land by the state land cornmls" sioners. inclndlTig the governor . Lamar, J., said: "The dividing hue between the cases [permitting suits against state of- ficers] and the class of cases in which it has been held that the state is a party defendant, and therefore not suable, by virtue of the inhibition contained in the eleventh amendment to the Constitution, was adverted' to in Cunningham V. Railroad Co., where it was said, referring to the case of Davis v. Gray [16 Wall. 203, 21 L. Ed. 447 (1873)]: 'Nor was there in that case any affirmative relief granted by ordering the governor and land commissioner to perform any act towards perfecting the title of the company.' 109 U. S. 453, 454, 3 Sup. Ct 298, 609, 27 L. Ed. 992 (1883). Thus holding, by impUcation, at least, FEDERAL JUKISDICTION 59 KANSAS V. COLORADO. ^Supreme Court of United States, 1902. 185 U. S. 125, 22 Sup. Ct. 552, 46 L. Ed. 838.) [ Original bill of complaint by Kansas against Colorado, alleg-jng - i n suDstance a large aiversion ot the waters of the Arkansas river as it flo wed through Colorado, made by or under the authority of that state for purposes of irripatinn . which so diminished the flow of the river below in Kansas as greatly to injure the owners of riparian land, of which Kansas itself owned two small parcels used by it for a soldiers' home and a reformatory. An inju nction was prayed against any further diversion of said river in Colorado by that state, and against the P-ranting- nf any further anthnt-ity by Colorado to private persons to divert said water, except for do- mestic use. Demurrer, upon the ground, among others, that the matters alleged showed no controversy between states within the meaning of the Constitution .] Mr. Chief Justice Fuli^Er. * * * By the 1st clause of § 10 of article 1 of the Constitution it was provided that "no state shall enter into any treaty, alliance, or confederation;" and by the 3d clause that "no state shall, without the consent of the Congress, * * * keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such immi- nent danger as will not admit of delay." * * * Undoubtedly, as remarked by Mr. Justice Bradley in Hans v. Ivouisiana, 134 U. S. 1, 15, 33 L. Ed. 842, 847, 10 Sup. Ct. 504, 507, that affirmative relief would not be granted against a state officer, by order- ing Mm to do and perform acts forbidden by the law of this state, even though such law might be unconstitutional. The same distinction was pointed out in Hagood v. Southern, which was held to be, in effect, a suit against the state, and it was said: 'A broad line of demarkation separates from such cases as the present, in which the decrees require, by affirmative official ac- tion on the part of the defendants, the performance of an obligation which belongs to the state in its political capacity, those In which actions at law or suits in equity are maintained against defendants who, while claiming to act as officers of the state, violate and invade the personal and property rights of the plaintiffs, under color of authority unconstitutional and void.' 117 U. S. 52, 70, 6 Sup. Ct. 616, 29 L. Ed. 805 (1886). * * * "This suit is not nominally against the governor, secretary of state, and treasurer as such officers, but against them collectively, as the board of land commissioners. It must also be observed that the plaintiff Is not seeking any affirmative relief against the state or any of its officers. He is not asking that the state be compelled to issue patents to him for the land he claims to have purchased, nor is he seeking to compel the defendants to do and per- form any acts In connection with the subject-matter of the controversy requi- site to complete his title. All that he asks is that the defendants may be restrained and enjoined from doing certain acts which he alleges are viola- tive of his contract made with the state when he purchased his lands. He merely asks that an injunction may issue against them to restrain them from acting under a statute of the state alleged to be unconstitutional, which acts will be destructive of his rights and privileges, and vnll work irreparable dam- age and mischief to his property rights." 60 FEDERAL JURISDICTION the Constitution made some things justiciable "which were not known as such at the common law — such, for example, as contro- versies between states as to boundary lines and other questions ad- mitting of judicial solution." And as the remedies resorted to by independent states for the determination of controversies raised by collision between them were withdrawn from the states by the Constitution, a wide range of matters, susceptible of adjustment, and not purely political in their nature, was made justiciable by that instrument. In Missouri v. Illinois, 180 U. S. 208, 45 L. Ed. 497, 21 Sup. Ct. 331, it was alleged that an artificial channel or drain constructed by the sanitary district for purposes of sewerage, under authority derived from the state of Illinois, created a continuing nuisance dangerous to the health of the people of the state of Missouri ; and the bill charged that the acts of defendants, if not restrained, would result in poisoning the water supply of the inhabitants of Mis- souri, and in injuriously affecting that portion of the bed of the Mississippi river lying within its territory. In disposing of a demur- rer to the bill, numerous cases involving the exercise of original jurisdiction by this court were examined; and the court, speaking through Mr. Justice Shiras, said: "The cases cited show that such jurisdiction has been exercised in cases involving boundaries and jurisdiction over lands and their inhabitants, and in cases directly affecting the property rights and interests of a state. But such cases manifestly do not cover the entire field in which such controversies may arise, and for which the Constitution has provided a remedy; and it would be objection- able and, indeed, impossible, for the court. to anticipate by defini- tion what controversies can and what cannot be brought within the original jurisdiction of this court. An inspection of the bill dis-' closes that the nature of the injury complained of is such that an adequate remedy can only be found in this court at the suit of the state of Missouri. It is true that no question of boundary is involved, nor of direct property rights belonging to the complain- ant state, but it must surely be conceded that if the health and com- fort of the inhabitants of a state are threatened, the state is the proper party to represent and defend them. If Missouri were an independent and sovereign state, all must admit that she could seek a remedy by negotiation, and, that failing, by force. Diplomatic powers and the right to make war having been surrendered to the general government, it was to be expected that upon the latter would be devolved the duty of providing a remedy, and that rem- edy, we think, is found in the constitutional provisions we are con^ sidering. The allegations of the bill plainly present such a case. The health and comfort of the large com^munities inhabiting those parts of the state situated on the Mississippi river are not alone concerned, but contagious and typhoidal diseases introduced in FEDERAL JURISDICTION 61 the river communities may spread themselves throughout the ter- ritory of the state. Moreover, substantial impairment of the health and prosperity of the towns and cities of the state situated on the Mississippi river, including its commercial metropolis, would in- juriously affect the entire state. That suits brought by individuals, each for personal injuries, threatened or received, would be wholly inadequate and disproportionate remedies, requires no argument." As will be perceived, the court there ruled that the mere fact that a state had no pecuniary mterest in the controversy would not de- feat the original jurisdiction of this court, which might be invoked by the state as parens patriae, trustee, guardian, or representative of all or a considerable iJortion of its citizens ; and that the threat- ened pollution of the waters of a river flowing between states, under the authority of one of them, thereby putting the health and comfort of the citizens of the other in jeopardy, presented a cause of action justiciable under the Constitution. In the case before us the state of Kansas files her bill as repre- senting and on behalf of her citizens, as well as in vindication of her Alleged rights as an individual owner, and seeks relief in re- spect of being deprived of the waters of the river accustomed to flow through and across the state, and the consequent destruction of the property of herself and of her citizens and injury to their health and comfort. The action complained of i^ state action, and not the action of state officers in abuse or excess of their powers. The state of Colorado contends that, as a sovereign and inde- pendent state, she is justified, if her geographical situation and material welfare demand it in her judgment, in consuming for bene- ficial purposes all the waters within her boundaries; and that, as the sources of the Arkansas river are in Colorado, she may abso- lutely and wholly deprive Kansas and her citizens of any use of or share in the waters of that river. She says that she occupies to- ward the state of Kansas the same position that foreign states occupy toward each other, although she admits that the Constitu- tion does not contemplate that controversies between members of the United States may be settled by reprisal or force of arms, and that to secure the orderly adjustment of such differences power was lodged in this court to hear and determine them. The rule of decision, however, it is contended, is the rule which controls for- eign and independent states in their relations to each other; that by the law of nations the primary and absolute right of a state is self-preservation; that the improvement of her revenues, arts, agriculture, and commerce are incontrovertible rights of sover- eignty ; that she has dominion over all things within her territory, including all bodies of water, standing or running, within her boundary lines; that the moral obligations of a state to observe the demands of comity cannot be made the subject of controversy between states; and that only those controversies are justiciable 62 FEDERAL JURISDICTION in this court which, prior to the Union, would have been just cause for reprisal by the complaining state ; and that, according to inter- national law, reprisal can only be made when a positive wrong has been inflicted or rights stricti juris withheld. But when one of our states complains of the infliction of such wrong or the deprivation of such rights by another state, how shall the existence of cause of complaint be ascertained, and be accommo- dated if well founded ? The states of this Union cannot make war upon each other. They cannot ''grant letters of marque and repris- al." They cannot make reprisal on each other by embargo. They cannot enter upon diplomatic relations, and make treaties. * * * The publicists suggest as just causes of war: defense; recovery of one's own ; and punishment of an enemy. But, as between states of this Union, who can determine what would be a just cause of war? Comity demanded that navigable rivers should be free, and therefore the freedom of the Mississippi, the Rhine, the Scheldt, the Danube, the St. Lawrence, the Amazon, and other rivers has been at different times secured by treaty; but if a state of this Union deprives another state of its rights in a navigable stream, and Congress has not regulated the subject, as no treaty can be made between them, how is the matter to be adjusted? * * * Without subjecting the bill to minute criticism, we think its averments sutli cient to presen t the question as to the power of one state of ttie Union to wnoUy deprive another of the benefit of water from a rivt^r rising in the former, and bv nature, flowing into an g through the latter : and that therefore this co urt, s peaking broadly^ has lunsdiction . * * * Sitting, as it were, as an international, as well as a domestic, tribunal, we apply federal law, state law, and international law, as the exigencies of the particular case may demand ; " and we are unwilling in this case to proceed on the 6 As to the law that may be applicable to interstate disputes, Brewer, J., said in the principal litigation at a later stage, Kansas v. Colorado, 206 U. S. 46, 97, 98, 27 Sup. Ct 655, 51 L. Ed. 956 (1907): "Nor is our jurisdiction ousted, even if, because Kansas and Colorado are states sovereign and independent in local matters, the relations between them depend in any respect upon principles of international law. International law isi no alien in this tribunal. * * * [After quoting from the principal case, above, the sentence to which this note is appended:] One cardinal rule, underlying all the relations of the states to each other, is that of equality of right. Each state stands on the same level with all the rest It can impose its own legislation on no one of the others, and is bound to yield its own views to none. Yet, whenever, as in the case of Missouri v. Illinois [180 TJ. S. 208, 21 Sup. Ct. 331, 45 L. Ed. 497], the action of one state reaches, through the agency of natural laws, Into the territory of another state, the question of the extent and the limitations of the rights of the two states becomes a matter of justiciable dispute between them, and this court is called upon to settle that dispute in such a way as will recognize the equal rights of both and at the same time establish justice between them. In other words, through these successive disputes and decisions this court Is practically building up what may not improperly be called interstate common law. This very case presents a significant illustration. * * * Surely here Is a dispute of a justiciable nature which might and ought to be tried and determined. If the FEDERAL JURISDICTION 63 mere technical admissions made by the demurrer. * * * The result is that in view of the intricate questions arising on the rec- ord, we are constrained to forbear proceeding until all the facts are before us on the evidence. Demurrer overruled, with leave to answer. [Gray, J., took no part in the decision.] q /J6,„/^/^A-tU>a l GREEN v. NEAIv'S LESSEE. ^^-^sMA^e- v^^^^ff (Supreme Court of United States, 1832. 6 Pet. 291, 8 L. Ed. 402.) [Error to the federal Circuit Court for West Tennessee. A Tennessee statute of limitations of 1797 was construed by the state, courts in 1815 not to give title by seven years of adverse posses- sion unless the occupant held under a deed con nected with a grant of the land . In Patton's l.essep v. Kastnn rwVi^at"Z7fi 1 LrEd. 139 (1816) these decisions were followed by the federal Supreme Court , and also in Powell's Lessee v. Harman, 2 Pet. 241, 7 L. Ed. 411 (1829). In Gray v. Darby's Lessee, Mart. & Y. (Tenn.) 396 (1825) the older Tennessee cases were overruled by the state Su- preme dourt, and the statute of 1797 was held not to require the occupant's deed to be connected with a grant. In a subsequent ejectment action in the federal court by Neal agamst Green, t he federal decision upon this point was followed, and this writ of error was taken. 1 Mr. Justice McLEAn. * * * Since this decision [Gray v. Darby's Lessee, cited above], the law has been considered as set - tled in Tennessee ; and there hTs been so general an acquiescence in all the courts of the state, that the point is not now raised or dis.- cussed. This construction has become a rule of property in the- state, and numerous suits involving title have been settled by it. Had this been the settled construction of these statutes when the decision was made by this court, in the case of Patton's Lessee v. Easton, there can be no doubt that that opinion would have con- formed to it. But the question is now raised, whether this court will adhere to its own decision, made under the circumstances stated, or yield to that of the judicial tribunals of Tennessee. This point has never before been directly decided by this court, on a question of general importance. The cases are numerous where the court have adopted the constructions given to the statute of a state by its supreme judicial tribunal; but it has never been de- cided that this court will overrule their own adjudication, estab- two states were absolutely independent nations it would be settled by treaty or by force. Neither of these ways being practicable, it must be settled by decision of this court." [The bill in the principal case was then dismissed on the merits, after aa exhaustive investigation and argument.] 64 FEDERAL JURISDICTION lishing an important rule of property, where it has been founded on the construction of a statute made in conformity to the deci- sions of the state at the time, so as to conform to a different con- struction adopted afterwards by the state. This is a question of grave import, and should be approached with great deliberation. It is deeply interesting in every point of view in which it may be considered. As a rule of property it is important; and equally so, as it regards the system under which the powers of this tribunal are exercised. It may be proper to examine in what light the decisions of the state courts, in giving a construction to their own statutes, have been considered by this court. * * * The Supreme Court holds in the highest respect decisions of state courts upon local laws forming rules of property^ Shipp v. Miller's Heirs, 2 Wheat. 316, 4 L. Ed. 248. In construing local statutes respecting real property, the courts of the Union are gov- erned by the decisions of the state tribunals. Thatcher v. Powell, 6 Wheat. 119, S L. Ed. 221. The court says, in the case of Elmen- dorf V. Taylor et al., 10 Wheat. 152, 6 L. Ed. 289, " that the courts of the United States , in cases depending on th e laws of a particu- lar state, will, in general, adopt the construction which the courts of the state have given to those laws." "This course is founded upon the principle, supposed to be universally recognized, that the judicial department of every government, where such department ^. exists, is the appropriate organ for construing the legislative acts of that government." ^ In Shelby v. Guy, 11 Wheat. 361, 6 L. Ed. 495, the court again de- clares, that "the statute laws of the states must furnish the rule of decision of the federal courts, as far as they comport with the Con- / stitution of the United States, in all cases arising within the respec- tive states; and a fixed and received construction of their respec- tive statute laws, in their own courts, makes a part of such statute law." The court again says, in Jackson ex dem. St. John v. Chew, 12 Wheat. 153, 6 L. Ed. 583, "that this court adopts the local law of real property, as ascertained by the decisions of the state courts, whether these decisions are grounded on the construction of the statutes of the state, or form a part of the unwritten law of the state, which has become a fixed rule of property." Quotations might be multiplied, but the above will show that this court has tiniformly adopted the decisions of the state tribunals respectively, in the construction of their statutes, [and] that this has been done as a matter of principle, in all cases where the decision of a state court has become a rule of property. In a great majority of the causes brought before the federal tri- bunals , the y are called to enforce the, laws nf the statg s. The rip-hts oi parties are aetermined under those laws, and it would be a strange perversion of principle, if the judicial exposition of those FEDERAL JURISDICTION 65 laws, by the state tribunals, should be disregarded. These exposi- tions constitute the law, and fix the rule of property. Rights are acquired under this rule, and it regulates all the transactions which come within its "Scope. It is admitted in the argument, that this court," in giving a con- struction to a local law, will be influenced by the decisions of the local tribunals ; but it is contended that when such a construction shall be given in conformity to those decisions, it must be consid- ered final. That if the state shall change the rule, it does not com- port either with the consistency or dignity of this tribunal to adopt the change. Such a course, it is insisted, would recognize in the state courts a power to revise the decisions of this court, and fix the rule of property differently from its solemn adjudications. That the federal court, when sitting within a state, is the court of that state, being so constituted by the Constitution and laws of the Union ; and as such, has an equal right with the state courts to fix the construction of the local law. On all questions arising under the Constitution and laws of the Union, this court may exercise a revising power, and its decisions are final and obligatory on all other judicial tribunals, state as well as federal. A state tribunal has a right to examine any such ques- tions and to determine them, but its decisions must conform to that of the Supreme Court, or the corrective power may be exercised. But the case is very different where a question arises under a local law. The decision of this question by 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 courtj hut heranse. in the language of the court, in the case, of Shelby et al. V. Guy, 11 Wheat. 361, 6 L. Ed. 495, " a fixed and received con-_ structiofi hv a state, in its own courts, makes a part of the statute law." The same reason which influences this court to adoot the con- struction given to the local law, in the first instance, is not less strong in tavor of following it in the second, if the state tribunalT should change the construction. A reference is here made, not to a single adjudication, but to a series of decisions which shall settle the rule. Are not the injurious effects on the interests of the citi- zens of a state as great in refusing to adopt the change of construc- tion, as in refusing to adopt the first construction? A refusal in . t he one case as well as in the other has the effect to establish, in the stated two rules ot property. Would not a change in the construction of a law of the United States, by this trib unal, be obligatory on the state courts?. The statute, as iJiyt expounded, wouia be/the law o±"the Union; and why may not the same effect be gi^en to the last exposition of a, Hall Cases CoNST.L. — 5 / , C6 FEDERAL JURISDICTION local law by the state court? The exposition forms a part of the local law, and is binding on all the people of the state, and its in- ferior judicial tribunals. It is emphatically the law of the state, which the federal court, while sitting within the -state, and this court, when a case is brought before them, are called to enforce. If the rule as settled should prove inconvenient or injurious to the public interests, the legislature of the state may modify the law or repeal it. If the rnnsitruction of the highest judicial tribunal of a stata form a part of its statute law, as much as an enactment by thfe legis- lature, how can thrc; rnnrt maWp a distincti on, between them ? There could be r ip hesitation in so modifying our decisions as to conform to any legislative alteration in a statute ; and why should ^ not the same rule apply where the judicial branch of the state gov- ^ ernment, in the exercise of its acknowledged functions, should, by 'construction, give a different effect to a statute, from what had at first been given to it. The charge of inconsistency might be made witVi mn^p fnrrp anrl prnpri^f y api^ainst the federal tribunals fora! disregard of this rule, than by conforming to it. They profess to *,be bound by the local law; and yet they reject the exposition of that law which forms a part of it. It is no answer to this objection that a different exposition was formerly given to the act which was adopted by the federal court. The inquiry is, what is the set- '■ tied law of the state at the time the decision is made. This consti- tutes the rule of property within the state, by which the rights of litigant parties must be determined. As the federal tribunals pro- fess to be governed by this rule, they can never act inconsistently by enforcing it. If they change their decision, it is because the rule on which that decision was founded has been changed. The case under consideration illustrates the propriety and neces- sity of this rule. It is now the settled law of Tennessee that an ad- verse possession of seven years, under a deed for land that has been granted, will give a valid title. But by the decision of this court 'such a possession, under such evidence of right, will not give a valid title. In addition to the above requisites, this court have de- cided that the tenant must connect his deed with a grant. It there- fore follows that the occupant whose title is protected under the statutes before a state tribunal, is unprotected by them before the federal court. The plaintiff in ejectment, after being defeated in his. action before a state court, on the above construction, to insure success has only to bring an action in the federal court. This may be easily done by a change of his residence, or a bona fide convey- ance of the land. Here is a judicial conflict arising from two rules of property ia the same state, and the consequences are not only deeply injurious to the citizens of the state, but calculated to engender the most lasting discontents. It is therefore essential to the interests of the. FEDERAL JURISDICTION 67 country, and to the harmony of the judicial action of the federal and state governments, that there should be but one rule of prop- erty, in a state. * * * Judgment reversed. [Baldwin, J., dissented.] SWIFT V. TYSON (1842) 16 Pet. 1, 16, 18, 19, 10 L. Ed. 865, Mr. Justice Story (upholding an action brought in the New York federal court by an indorsee of a bill of exchange against the ac- ceptor who had been defrauded by the drawer) : "In the present case, the plaintiff is a bona fide holder without notice for what the law deems a good and valid consideration, that is, for a pre-existing debt ; and the only real question in the cause is, whether, under the circumstances of the present case, such a pre-existing debt constitutes a valuable consideration in the sense of the general rule applicable to negotiable instruments. We say, under the circumstances of the present case, for the acceptance having been made in New York, the argument on behalf of the de- fendant is, tha t the contract is to be treated as a N ew York con^ tract, and therefore to be governed by the laws o l Ne w York, as . expounded bv its courts, as well upon general princip les, as by th e express provisions of the 34th section of the Jud iciary Act of 1789 ^, c. 20. And then it is further contended that, by the law of New York, as thus expounded by its courts, a pre-existing debt does not constitute, in the sense of the general rule, a valuable consideration applicable to negotiable instruments. * * * [After discussing the New York cases:] " But, admitting the doctrine to be fully settled in New York, it remains to be consid- ered whether it is oblisfatory upon this court, if it differs from the principles established in the general commercial law. It is observ- able that the courts of New York do not found their decisions upon this point upon any local statute or positive, fixed or ancient local usage; but they deduce the doctrine from the general principles of commercial law. It is, however, contended that the 34th section of the Judiciary Act of 1789, c. 20, furnishes a rule obligatory upon this court to follow the decisions of the state tribunals in all cases to which they apply. That section provides ' that the laws n f the several states , p-xrept where the Constitution, treaties, or statutes of the. United States shall otherwise requ ire or provide, shall be regarded as rules of decision in trials at common law in tfie courts of the United States, in cases where they apply I In order to maintain the argument, it is essential, therefore, to hold that the word 'laws,' in this section, includes within the scope of its meaning the decisions of the local tribunals. In the ordinary use of language, it will hardly be contended that the decisions of courts constitute laws. They are, at most, only evidence of what 68 FEDERAL JURISDICTION the laws are, and are not of themselves laws. They are often re- examined, reversed, and qualified by the courts themselves, when- ever they are found to be either defective, or ill-founded or other- wise incorrect. The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long-established local customs having the force of laws. 'T!n all the various cases, which have hitherto come before us for decision, this court have uniformly supposed that the true inter- pretation of the 34th section limited its application to state laws strictly local ; that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character! It never has been supposed by us that the section did apply, or was designed to apply, to questions of a more general nature, not all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general com- mercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain, upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case. And we have not now the slightest difficulty in holding that this section, upon its true intendment and construction, is strictly limited to local stat- utes and local usages of the character before stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and ; doctrines of commercial jurisprudence. Undoubtedly, the decisions , of the local tribunals upon such subjects are entitled to. and will re- ceive, the most deliberate attention and respect of this court; but they ca n not furnish positive rules, or conclusive authoritv. bv whicli our own judgments are to be bound up and governed . The law- respecting negotiable instruments may be truly declared, in the language of Cicero, adopted by Lord Mansfield in Luke v. Lyde, 2 Burr. R. 882, 887, to be in a great measure, not the law of a single country only, but of the commercial world. 'Non erit alia lex Romse, alia Athenis, alia nunc, alia posthac, sed et apud omnes gen- tes, et omni tempore, una eademque lex obtinebit' "It becomes necessary for us^ therefore, upon the present occa- ' sion. to express ou r nwn npininn 9I \ ne true result of the commer- |. cial law upon the gu estinn nnw hefnrp 1^; AnH we have no hesita- tion in saying, that a pre-existing debt does constitute a valuable FEDERAL JURISDICTION 69 consideration in the sense of the general rule already stated, as applicable to negotiable instrument^." [Catron, J., expressed no opinion upon the latter point in the case, so far as concerned instruments taken as collateral security only.] KUHN V. FAIRMONT COAL CO. (Supreme Court of United States, 1910. 215 U. S. 349, 30 Sup. Cfc 140, 54 li. Ed. 228.) [Questions certified from federal Circuit Court of Appeals for Fourth Circuit. In 1889, Kuhn, a citizen of Ohio, conveyed to one Camden all the coal under a tract of land in West Virginia owned by Kuhn, granting also the right to enter said land, to remove the coal, and to make all necessary structures, ways, and openings for this purpose. Camden's interest in said coal passed to defendant, a West Virginia corporation, in January, 1906, and the latter in tak- ing out the coal left the surface of Kuhn's land unsupported so that it fell, for which, on January 18, 1906, Kuhn sued defendant in the federal Circuit Court for West Virginia. A similar suit had been brought by one Griffin in the state courts m l^UZ, wnicn was de- cided for the defendant by the state supreme court in November. 1905. A rehearing was granted, and on March 27, 1906. final judg- ment was given against Griffin. Kuhn's suit was decided against him on demurrer by the federal court on April 16. 1907, and he appealed to the Uircuit court of Appeals. Until the decision in the Griffi n case there was no statute, decision, or local custom gov- ernmg the question in controversy in the state. The federal appel- 1 late court certified to the Supreme Court the question whether, under these circumstances, it was bound by the decision of the state courts in the Griffin case.] Mr. Justice Harlan. * * * Was not the federal court bound to determine the dispute between the parties according to its own independent judgment as to what rights were acquired by them ui^ der the contract relating to the coal. '' It the tederal court was of opinion that the coal company was under a legal obligation, while taking out the coal in question, to use such precautions and to proceed in such way as not to destroy or materially injure the sur- face land, was it bound to adjudge the contrary simply because, in a single case, to which Kuhn was not a party, and which was de- termined after the right of the present parties had accrued and become fixed under their contract, and after the injury complained of had occurred, the state court took a different view of the law? If, when the jurisdiction of the federal court was invoked, Kuhn, the citizen of Ohio, had, in its judgment, a valid cause of action against the coal company for the injury of which he complained, 70 FEDERAL JURISDICTION was that court obliged to subordinate its view of the law to that expressed by the state court? In cases too numerous to be' here cited, the general subject sug- gested by these questions has been considered by this court. * * * [Here follow quotations from Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. 10, 27 h. Ed. 359; and Bucher v. Cheshire Ry., 125 U. S. 555, 8 Sup. Ct. 974, 31 L. Ed. 795, and citations of other cases.] We take it, then that it is no longer to be questioned that the federal courts, in determining cases before them, are to be guided by the following rules :Qi^When administering state laws and de- termining rights accruing under those laws, the jurisdiction of the federal court is an independent one, not subordinate to. but co-ord ^ liate and concurrent with^ the jurisdiction of the state courts. ^) Where, before the rights of the parties accrued, certain rules relat- ing to real estate have been so established by state decisions as to become rules of property and action in the state, those rules are ac- cepted by the federal court as authoritative declaratio ns nf the law of the state. (^But where the law of the state has not been thus settled, it is not only the right, but the duty, of the federal court to exercise its own judgment , as it also always does when the case before it depend^pon the doctrines of commercial law and general jurisprudence. ^^So, when contracts and transactions are entered into and rightsnave accrued under a particular state of the local decisions, or when there has been no decision by the state court on the particular question involved, then the federal courts properly claim the right to give effect to their own judgment as to what is the law of the state applicable to the case, even where a different view has been expressed by the state court after th e rig hts of par- ties accrued. But even in such cases, for the sake of comity and to avoid confusion, the federal court should always lean to an agree- ment with the state court if the question is balanced with doubt. * * * It would seem that according to those principles, now firmly established, the duty was upon the federal court, in the present case, to exercise its mdependent judgnient as to what were the relative rights and obligations of the parties under their written ieontract. The question before it was as to the liability of the coal company for an injury arising from the failure of that corporation, while mining and taking out the coal, to furnish sufficient support to the overlying or surface land. Whether such a case involves a rule of property in any proper sense of those terms, or only a ques- tion of general law, within the province of the federal court to de- termine for itself, the fact exists that there had been no determina- tion of the question by the state court before the rights of the par- ties accrued and became fixed under their contract, or before the injury complained of. In either case, the federal court was bound FEDERAL JURISDICTION 71 under established doctrines to exercise its own independent judg- ment, with a leaning, however, as just suggested, for the sake of harmony, to an agreement with the state court, if the question of law involved was deemed to be doubtful. If, before the rights of the parties in this case were fixed by written contract, it had be- come a settled rule of law in West Virginia, as manifested by deci- sions of its highest court, that the grantee or his successors in such a deed as is here involved was under no legal obligation to guard the surface land of the grantor against injury resulting from the mining and removal of the coal purchased, a wholly different ques- tion would have been presented. There are adjudged cases involving the meaning of written con- tracts having more or less connection with land that were not re- garded as involving a rule in the law of real estate, but as only pre- senting questions of general law, touching which the federal courts have always exercised their own judgment, and in respect to which they are not bound to accept the views of the state courts. * * * [Here follow discussions of Chicago v. Robbins, 2 Black, 418, 17 L. Ed. 298 (1863) ; Lane v. Vick, 3 How. 464, 11 L. Ed. 681 (1845) ; Foxcroft v. Mallett, 4 How. 353, 11 L. Ed. 1008 (1846) ; Russell v. Southard, 12 How. 139, 13 L. Ed. 927 (1851) ; Yates v. Milwaukee, 10 Wall. 497, 19 L. Ed. 984 (1871) ; Louisville Tr. Co. v. Cincinnati, 76 Fed. 296, 22 C. C. A. 334 (1896) ; Gt. So. Hotel Co. v. Jones, 193 U. S. 532, 24 Sup. Ct. 576, 48 L. Ed. 778 (1904) ; East Cent. Co. V. Central Eureka Co., 204 U. S. 266, 27 Sup. Ct. 258, 51 L. Ed. 476 (1907) ; and Brine v. Hartford Ins. Co., 96 U. S. 627, 24 L. Ed. 858 (1878).] The question here involved as to the scope and effect of the writ- ing given by Kuhn to Camden does not depend upon any statute of West Virginia, nor upon any rule established by a course of decisions made before the rights of parties accrued. So that the words above quoted from East Central Eureka Min. Co. v. Central Eureka Min. Co. ["The construction and effect of a conveyance between private parties is a matter as to which we follow the court of the state"] must not be interpreted as applicable to a case like the one before us, nor as denying the authority and duty of the fed- eral court, when determining the effect of conveyances or written instruments between private parties, citizens of different states, to exercise its own independent judgment where no authoritative state decision had been rendered by the stjite court before the rights of the parties accrued and became fixed. Question answered in negative. ~i . Mr. Justice Hoi,mES [with whom concurred White and Mc- Kenna, JJ.], dissenting. This is a question of the title to real es- tate. It does not matter in what form of action it arises, the deci- sion must be the same in an action of tort that it would be in a 72 FEDERAL JURISDICTION writ of right. The title to real estate in general depends upon the statutes and decisions of the state within which it lies. I think it a thing to be regretted if, while in the great mass of cases the state courts finally determine who is the owner of land, how much he owns, and what he conveys by his deed, the courts of the United States, when by accident and exception the same question comes before them, do not follow what, for all ordinary purposes, is the law. I admit that plenty of language can be found in the earlier cases to support the present decision. That is not surprising, in view of the uncertainty and vac illation of the theory upon which Swift v . Tyson, 16 Fet. 1, 10 L. Kd. 8bb (1842), and the later extensions of i ts doctrine, have nroceeded. But I suppose it will be admitted on the other side that even th e independent jurisdiction of the cirr cuit courts of the United States is a jurisdiction onlv to declare the law, at least, in a case like the present, and only to declare the law of the state. It is not an authority to make it . Swift v. Tyson was justified on the ground that that was all that the state courts did. But, as has been pointed out by a recent accomplished and able writer, that fiction had to be abandoned and was abandoned when this court came to decide the municipal-bond cases, beginning with Gelpcke v. Dubuque, 1 Wall. 175, 17 L. Ed. 520 (1864). Cray, Nature & Sources of the Law, §§ 535-550. In those cases the court followed Chief Justice Taney in Ohio L. Ins. & T. Co. v. Debolt, 16 How. 416, 14 L. Ed. 997 (1853), in recognizing the fact that deci- sions of state courts of last resort make law for the state. The principle is that a change of judicial decision after a contract has been made on the faith of an earlier one the other way is a change of the law. The cases of the class to which I refer have not stood on the ground that this court agreed with the first decision, but on the ground tljat the state decision made the law for the state, and there- fore should be given only a prospective operation when contracts had been entered into under the law as earlier declared. Douglass V. Pike County, 101 U. S. 677, 25 L. Ed. 968 (1880) ; Green County v. Conness, 109 U. S. 104, 3 Sup. Ct. 69, 27 L. Ed. 872 (1883). In various instances this court has changed its decision or rendered dififerent decisions on similar facts arising in different states, in order to conform to what is recognized as the local law. Fairfield V. Gallatin County, 100 U. S. 47, 25 L. Ed. 544 (1879).. Whether Swift v. Tyson can be reconciled with Gelpcke v. Du- buque, I do not care to inquire. I assume both cases to represent settled doctrines, whether reconcilable or not. But the moment you leave those principles which it is desirable to make uniforni throughout the United States, and which the decisions of this court tend to make uniform, ob.viously it is most undesirable for the FEDERAL JURISDICTION 73 courts of the United States to appear as interjecting an occasional arbitrary exception to a rule that in every other case prevails. I never yet have heard a statement of any reason justifying the pow- er, and I find it hard to imagine one. The rule in Gelpcke v. Du- buque gives no help when the contract or grant in question has not been made on the faith of a previous declaration of law. I know of no authority in this court to say that, in g-eneral, state decisions shall make law only for the future^ Judicial decisions have had retrospective operation for near a thousand years. There were enough difficulties in the way, even in cases like Gelpcke v. Du- buque, but in them there was a suggestion or smack of constitu- tional right. Here there is nothing of that sort. It is said that we must exercise our independent judgment — but as to what? Surely, as to the law of the states. Whence does that law issue? Cer- tainly not from us. But it does issue, and has been recognized by this court as issuing, from the state courts as well as from the state legislatures. When we know what the source of the law has said that it shall be, our authority is at an end. The law of a state does not become something outside of the state court, and independent of it, by being called the common law. Whatever it is called, it is the law as declared by the state judges, and nothing else. If, as I believe, my reasoning is correct, it justifies our stopping when we come to a kind of case that, by nature and necessity, is peculiarly local, and one as to which the latest intimations, and, indeed, decisions of this court are wholly in accord with what I think to be sound law. * * * It is admitted that we are bound by a settled course of decisions, irrespective of contract, because they make the law. I see no. reason why we are less bound by a single one.'' 7 The federal Circuit Court of Appeals finally followed the West Virginia decision, Pritchard, J., saying: "It must be borne in mind that the decision of the West Virginia Court of Appeals will be held by the courts of that state to be a rule of property In that state in all suits that may be instituted be- tween citizens of said state. If this court should decide otherwise, we would have a condition in that state, which would be without a parallel in judicial procedure. Under such circumstances, we would have one rule of property by which citizens of West Virginia would be governed and an entirely dif- ferent rule of property where a suit was instituted by a nonresident of West Virginia in the federal court This would necessarily result in a great in- justice and lead to interminable confusion; and, on that account, we would be inclined to adopt the rule of the West Virginia Supreme Court of Appeals, even if, in view of the peculiar provisions of the conveyance by which the land in controversy was transferred, we did not find ourselves in accord with that tribunal." Kuhn v. Fairmont Coal Co., 179 Fed. 191, 210, 102 C. C. A. 457 (1910). 74 POWERS OF CONGKBSS POWERS OF CONGRESS I. General Principles ^ UNITED STATES v. CRUIKSHANK (1876) 92 U. S. 542, 549- 551, 23 ly. Ed. 588, Mr. Chief Justice WaiTE: "We have in our political system a government of the United States and a government of each of the several states. Each one of these governments is distinct from the others, and each has citizens of Its own who owe it allegiance, and whose rights, within its juris- diction, it must protect. The same person may be at the same time. a citizen of the United States and a citizen of a state, but his rights of citizenship under one of these governments will be different from those he has under the other. Slaughter-House Cases, 16 Wall. 74, 21 L. Ed. 394. * * * "Experience made the fact known to the people of the United States that they required a national government for national pur- poses. * * * por this reason, the people of the United States * * * ordained and established the government of the United States, and defined its powers by a Constitution, which they adopt- ed as its fundamental law, and made its rules of action. "The government thus established and defined is to some extent a government of the states in their political capacity. It is also, for certain purposes, a government of the people. Its powers are limit- ed in number, but not in degree. Within the scope of its powers, as enumerated and defined, it is supreme and above the states; but beyond, it has no existence. It was erected for special purposes and endowed with all the powers necessary for its own preservation and the accomplishment of the ends its people had in view. It can neither grant nor secure to its citizens anv right or orivileg-e nnt. ex- pressly or by implication placed under its jurisdiction . "The people of the United States resident within any state are subject to two governments, one state, and the other national; but there need be no conflict between the two. The powers which one possesses, the other does not. They are established for different purposes, and have separate jurisdictions. Together they make one whole, and furnish the people of the United States with a complete government, ample for the protection of all their rights at home and abroad. True it may sometimes ha ppen that a person is amenable to both iunsdictions for one and the same act . Thus, if a marshal of the United States is unlawfully resisted while executing the pro- 1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 102-104, ,06, lOT. GENERAL PRINCIPLES 75 cess of the courts within a state, and the resistance is accompanied by an assault on the officer, the sovereignty of the United States is violated by the resistance, and that of the state by the breach of peace, in the assault. So, too, if one passes counterfeited coin of the United States within a state, it may be an offence against the Unit- ed States and the state : the United States, because it discredits the coin ; and the state, because of the fraud upon him to whom it is passed. This does not, however, necessarily imply that the two governments possess powers in common, or bring them into con- flict with each other. It is the natural consequence of a citizenship which owes allegiance to two sovereignties, and claims protection from both. The citizen cannot complain , because he ha s voluntari ; ly submitted himself to such a form of government" He owes aT legiance to the two departments, so to speak, and within their r e- spective spheres must pay the penalties which each exacts for dis- obedience to its laws, In return, he can demand protection from each within its own jurisdiction. "The government of the United States is one of delegated powers alone, its authority i s defined and limited by the Constitution. All powers not grantea to it by that instrument are reserved to the states or the people. No rights can be acquired under the Constitu- tion or laws of the United States, except such as the government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the states." * 2 "There are within the territorial limits of each state two governments, restricted in their spheres of action, but independent of each other and su- preme within their respective spheres. Each has its separate departments ; each has its distinct laws, and each has its own tribunals for their enforce- ment Neither government can Intrude within the jurisdiction, or authorize any interference therein by its judicial officers with the action of the other. The two governments in each state stand in their respective spheres of ac- tion in the same independent relation to each other, except in one particular, that they would if their authority embraced distinct territories. That particu- lar consists la the supremacy of the authority of the United States when any conflict arises between the two governments. The Constitution and the laws passed in pursuance of it, are declared by the Constitution itself to be the su- preme law of the land, and the judges of every state are bound thereby, 'any- thing in the Constitution or laws of any state to the contrary notwithstanding.' Whenever, therefore, any conflict arises between the enactments of the two sov- ereignties, or in the enforcement of their asserted authorities, those of the na- tional government must have supremacy until the validity of the difiCerent enactments and authorities can be finally determined by the tribunals of the United States. This temporary supremacy until judicial decision by the na- tional tribunals, and the ultimate determination of the conflict by such deci- sion, are essential to the preservation of order and peace, and the avoidance of forcible collision between the two governments." — Field, J., in Tarble's Case, 13 Wall. 397, 406, 407, 20 D. Ed. 597 (1872). 76 POWERS OF CONGRESS GIBBONS V. OGDEN (1824) 9 Wheat. 1, 187-189, 6 L. Ed. 23, Mr. Chief Justice Marshall : "As preliminary to the very able discussions of the Constitution which we have heard from the bar, and as having some influence on its construction, reference has been made to the political situation of these states, anterior to its formation. It has been said that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. But, when these allied sovereigns converted their league into a government, when they converted their congress of ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature, empowered to enact laws on the most interesting subjects, the whole character in which the states appear underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was ef- fected. " This instrument contains an enumeration of powers expressly granted by the neonle to their government, it has been said that these powers ous^ht to be construed strictly. But why ought thev to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerat- ed powers, that which grants, expressly, the means for carrying all others into execution. Congress is authorized 'to make all laws which shall be necessary and proper' for the purpose. But this lim- itation on the means which may be used, is not extended to the powers which are conferred ; nor is there one sentence in the Con- stitution, which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not, therefore, think ourselves justified in adopting it. What do gentlemen mean by a strict construction ? If they contend only against that enlarged construction which would extend words beyond their natural and obvious import, we might question the ap- plication of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction, which would cripple the government, and render it unequal to the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we canno t perceive the propriety of this strict construction, nor adopt II as xhe rule by which the Constitution is to be expounded. As men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, GENERAL PRINCIPLES 77 and the peop le who ado pted it, must be understood to have employ-. M wOrdl . ill LliLJi wartiirai se nse, and to have intended what they" have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well-settled rule that the objects for which it was given, es- pecially when tnose oDiects are expressed in the instrument itseTT, should have great influence in the construction. We know of no reason for excluding this rule from the present case. The grant does not convey power which might be beneficial to the grantor, if retained by himself, or which can enure solely to the benefit of the grantee ; but is an investment of power for the general advantage, in the hands of agents selected for that purpose ; which power can never be exercised by the people themselves, but must be placed in the hands of agents, or lie dormant. We know of no rule for coiir struing the extent of such powers, other than is given by the lan-_ ^uage of the instrument which confers them, taken in connection with the purposes for which they were conferred." McCULLOCH v. MARYLAND, (Supreme Court of the United States, 1819. 4 Wheat. 316, 4 L. Ed. 579.) [Error to the Court of Appeals of Maryland. In 1816 Congress incorporated the Bank of the United States, and one of its branches was in 1817 established at Baltimore. In 1818 a Maryland statute subjected all banks in the state not chartered by the legislature to a stamp tax upon their note issues. McCulloch, cashier of the said branch bank, was held by the state courts liable to penalties for violating this act, and this writ was taken.] Mr. Chief Justice Marshall. * * * The first question madef in the cause is, has Congress power to incorporate a bank? * * * In discussing this question, the counsel for the state of Maryland have deemed it of some importance, in the construction of the Constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent states. The powers of the general government, it has been said, are dele- gated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess su- preme dominion. It would be difficult to sustain this proposition. The convention which framed the Constitution was, indeed, elected by the state legislatures. But the instrument, when if came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might "be submitted to a convention of dele- gates, chosen in each state, by the people thereof, under the recom- 78 POWERS OP CONGRESS mendation of its legislature, for their assent and ratification." This mode of proceeding was adopted ; and by the convention, by Con- gress, and by the state legislatures, the instrument was submitted to the people. They acted upon it, in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in convention. It is true, they assembled in their sev- eral states ; and where else should they have assembled? No politi- cal dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. From these conventions the Constitution derives its whole au- thority. The governm ent proceeds directly from the people; is "ordained and established" m the name of the people ; and is de- clared to be ordained, "in order to form a mere perfect union, es- tablish justice, insure domestic tranquility, and secure the bless- 'ings of liberty to themselves and to their posterity." The assent of the states, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the state governments. The Constitution, when thus adopted, was of complete obligation, and bound the state sovereignties. It has been said, that the people had already surrendered all their powers to the state sovereignties, and had nothing more to give. But, surely, the question whether they may resume and mod- ify the powers granted to government, does not remain to be set- tled in this country. Much more might the legitimacy of the gen- eral government be doubted, had it been created by the states. The powers delegated to the state sovereignties were to be exercis- ed by themselves, not by a distinct and independent sovereignty, created by themselves. To the formation of a league, such as was the Confederation, the state sovereignties were certainly compe- tent. But when, "in order to form a more perfect union," it was deemed necessary to change this alliance into an effective govern- ment, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of de- riving its powers directly from them, was felt and acknowledged by all. The government of the Union, then ("whatever mav be the ii> ^ fluence of this fact on the case), is emphatically and truly a gov- ernment of the peopl^ ,. In form and in substance it emanates from them, its powers are ^r3 Ti|pri hv thpm, a nd are to be exercised di- rectly on them, and for their benefit.. GENERAL PRINCIPLES 79 This government is acknowledged by all to be one of enumeratr ed pOwerS .^ I'he principle, that it ran pvprn'sp nnly tlip pnwprs ' granted to it, would seem too apparent to have required to be en- forced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted. But the question re- specting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist. * * * If any one proposition could command the universal assent of mankind, we might expect it would be this : t hat the government of the Union, though limited in its powers, is supreme within its'. ' sphere ol action. This would seem to result necessarily from its" nature, it is the government of all; its powers are delegated by-^ all ; it represents all, and acts for all. Though any one state may « be willing to control its operations, no state is willing to allow oth- ers to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason : the people have, in express terms, de- cided it, by saying, "this Constitution, and the laws of the United States, which shall be made in pursuance thereof," "shall be the supreme law of the land," and by requiring that the members of the state legislatures, and the officers of the executive and judicial departments of the states, shall take the oath of fidelity to it. * * * Among- the enumerated powers, we do not find that of establish- ing a bank or creating a corporation. But there is no phras e in the instrument which, like the Articles of Confederation,^ excludes incidental or implied powers ; and which requires .tnat everything: gran ted shall be expressly and rninutely described. Even the tenth amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares only that the powers "not delegated to the , United States, nor prohibited to the states, are reserved to the ^ states or to the people"; thus leaving the question, whether the particular power which may become the subject of contest, has -J been delegated to the one government, or prohibited to the other, ^ to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment, had experienced the embarrassments resulting from the insertion of this word in the Articles of Confederation, and probably omitted it to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be em- 8 Article II: "Each state retains * • ♦ every power • • » not • * * expressly delegated." 80 POWERS OF CONGRESS braced by the human mind. It would probably never be under- stood by the public. Its nature, therefore, requires, that only its, great outlines should he marked, its important obiects designated, and the minor ingredients which compose those objects be deducr • ed from the nature of the obiects themselves. That this idea was entertained by the framers of the American Constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the ninth section of the first article, introduced? It is also, in some degree, warranted by their having omitted to use any re- strictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget, that it is a constitution we are expounding. Although, among the enumerated powers of government, we do not find the word "bank," or "incorporation," we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and sup- port armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government. It can never be pretended that these vast powers draw after them others of inferior import- ance, merely because they are inferior. Such an idea can never be advanced. But it may, with great reason, be contended, that a goverment, intrusted with such ample powers, on the due execu- tion of which the happiness and prosperity of the nation so vitally_ depends, must also be intrusted with ample means for their execu- tion. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means. Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The ex- igencies of the nation may require, that the treasure raised in the ' North should be transported to the South, that raised in the East conveyed to the West, or that this order should be reversed. Is that construction of the Constitution to be preferred which would render these operations difficult, hazardous, and expensive? Can we adopt that construction (unless the words imperiously require it) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of im- peding their exercise by withholding a choice of means? If, in- deed, such be the mandate of the Constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed ; nor does it prohibit the creation of a corporation, if the existence of such a GENERAL PRINCIPLES 81 being be essential to the beneficial exercise of those powers. It is, then, the subject of fair inquiry, how far such means may be em- ployed. * * * The government which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dic^. tates ot reason, be allowed to select the means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception. The creation of a corporation, it is said, appertains to sovereign- ty. This is admitted. But to what portion of sovereignty does it appertain? Does it belong to one more than to another? In America, the powers of sovereignty are divided between the gov- ernment of the Union, and those of the states. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other. * * * ■\/^Q cannot well comprehend the process of reasoning which maintains, that a power appertaining to sovereignty cannot be connected with that vast portion of it which is granted to the general government, so far as it is calculated to subserve the legiti- mate objects of that government. The power of creating a cor- poration, though appertaining to sovereignty, is not, like the power of making war, or levying taxes, or of regulating commerce, a great substantive and independent power, which cannot be implied as incidental to other powers, or used as a means of executing them. It is never the end for which other powers are exercised,: but a means by which other objects are accomplished. No con- tributions are made to charity for the sake of an incorporation, but a corporation is created to administer the charity; no semi- nary of learning is instituted in order to be incorporated, but the corporate character is conferred to subserve the purposes of edu- cation. No city was ever built with the sole object of being in- corporated, but is incorporated as affording the best means of be- ing well governed. The power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. No sufficient reason is, therefore, perceived, why it may not pass as incidental to those powers which are expressly given, if it be a direct mode of executing them. But the Constitution of the United States has not left the right of Congress to employ the necessary means, for the execution of the powers conferred on the ' government, to general reasoning. To its enumeration of powers is added that of making "all laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this Consti- tuti on, m the government of the United States, or in any depart- ment thereot.'' Haix Cases Const.L. — 6 82 POWEKS OF CONGRESS The counsel for the- state of Maryland has urged various argu- ments, to prove that this clause, though in terms a grant of pow- er, is not so in effect ; but is really restrictive of the general right, which might otherwise be implied, of selecting means for execut- ing the enumerated powers. * * * The argument on which most reliance is placed, is drawn from the peculiar language of this clause. Congress is not empowered by it to make all laws, which may have relation to the powers conferred on the government, but such only as may be "necessary and proper" for carrying them into execution. The word "necessary" is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers, to such as are indispensable, . and without which the power would be nugatory. That it excludes the choice of means, and leaves to Congress, in each case, that only which is most direct and simple. f' Is it true, that this is the sense in which the word "necessary! ' is alw a ys used? Does it always import an absolute physical ne- cessity, so strong, that one thing, to which another mav be term- ed necessary, cannot exist without that other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is general- ly understood as employing any means calculated to produce the end, and tiot as being confined to those single means, without which the end would be entirely unattainable. Such is the char- acter of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more com- mon than to use words in a figurative sense. Almost all composi- tions contain words, which, taken in their rigorous sense, would convey a meaning different from that which is obviously intended. It is essential to just construction, that many words which im- port something excessive, should be understood in a more miti- gated sense — in that sense which common usage justifies. The word "necessar y" is nf this Hpsr ription. It has not a fixed character peculiar to itself. It admits of all decrees nf rnmparison : and is often connected with ot her words, which increase or diminish the impression the mina receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed, by these several phrases. This comment on the word is well il- lustrated, by the passage cited at the bar, from the tenth section of the first article of the Constitution. It is, we think, impossible to compare the sentence which prohibits a state from laying "im- posts, or duties on imports or exports, except what may be ab- solutely necessary for executing its inspection laws," with that GENERAL PRINCIPLES 83 which authorizes Congress "to make all laws which shall be neces- sary and proper for carrying into execution" the powers of the gen- eral government, without feeling a conviction that the convention understood itself to change materially the meaning of the word "necessary" by prefixing the word "absolutely." , This word, then, like others, is used in various senses; and, in its construction, the subject, the context, the intention of the person using them, are all to be taken into view. Let this be done in the case under consideration. The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention ol those who gave these powers, to insure, as far as human prudence could insure, their beneficial execution. This could not be done by confining the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appro- t priate, and which were conducive to the end. This provision is j made in a constitution intended to endure for ages to come, arid, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties * of a legal code. It would have been an unwise attempt to pro- vide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best m eans shall not be used, but t hose alone without whicii the power given would~ be^ nugatory, would have been to deprive the legislature of the capaci- ty to avail itself of experience, to exercise its reason, and to ac- commodate its legislation to circumstances. If we apply this principle of construction to any of the powers of the government, we shall find it so pernicious in its operation that we shall be compelled to discard it. * * * So, with respect to the whole penal code of the United States. Whence arises the power to punish in cases not prescribed by the Constitution? All admit that the government may, legitimately, punish any violation of its laws; and yet, this is not among the enumerated powers of Congress. The right to enforce the ob- servance of law, by punishing its infraction, might be denied with the more plausibility, because it is expressly given in some cases. Congress is empowered "to provide for the punishment of counter- feiting the securities and current coin of the United States," and "to define and punish piracies and felonies committed on the high seas, and offences against the law of nations." The several pow- ers of Congress may exist, in a very imperfect state to be sure, but they may exist and be carried into execution, although no punish- ment should be inflicted in cases where the right to punish is not expressly given. 84 • POWERS OF CONGRESS Take, for example, the power "to establish post-offices and post-roads." This power is executed by the single act of makings the establishment. But from this has been inferred the power and duty of carrying the mail along the post-road, from one post- office to another. And, from this implied power, has again been inferred the right to punish those who steal letters from the post- office, or rob the mail. It may be said, with some plausibility, that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post-office and post-road. This right is, indeed essential to the beneficial exercise of the power, but not indispensably necessary to its ex- istence. So, of the punishment of the crimes of stealing or falsify- ing a record or process of a court of the United States, or of per- jury in such court. To punish these offences is certainly condu- cive to the due administration of justice. But courts may exist, and may decide the causes brought before them, though such crimes escape punishment. The baneful influence of this narrow construction on all the operations of the government, and the absolute impracticability of maintaining it without rendering the government incompetent to its great objects, might be illustrated by numerous examples drawn from the Constitution, and from our laws. The good sense of the public has pronounced, without hesitation, that the power of pun- ishment appertains to sovereignty, and may be exercised when- ever the sovereign has a right to act, as incidental to his constitu- tional powers. It is a means for carrying into execution all sov- ereign powers, and may be used, although not indispensably nec- essary. It is a right incidental to the power, and conducive to its beneficial exercise. If this limited construction of the word "necessary" must be abandoned in order to punish, whence is derived the rule which would reinstate it, when the government would carry its powers into execution by means not vindictive in their nature? If the word "necessary" means "needful," "requisite," "essential," "con- ducive to," in order to let in the power of punishment for the in- fraction of law, why is it not equally comprehensive when requir- ed to authorize the use of means which facilitate the execution of the powers of government without the infliction of punishment? In ascertaining the sense in which the word "necessary" is used in this clause of the Constitution, we may derive some aid from that with which it is associated. Congress shall have power "to make all laws which shall be necessary and proper to carry into execution" the powers of the government. If the word "neces- sary" was used in that strict and rigorous sense for which the counsel for the state of Maryland contend, it would be an extra- ordmary departure from the usual course of the human mind, as exhibited in composition, to add a word, the only possible effect GENERAL PRINCIPLES 85 of which is to qualify that strict and rigorous meaning; to present to the mind the idea of some choice of means of legislation not straitened and compressed within the narrow limits for which gentlemen contend. But the argument which most conclusively demonstrates the error of the construction contended for by the counsel for the state ' of Maryland, is founded on the intention of the convention, as-* manifested in the whole clause: * * * 1. The clause is placed. ■ among the powers of Congr ess, not among the limitations on those , powers. ^. IIS terms purport to enlarge, not to diminish the pow- ers vested m the government. It purports to be an additional power, not a restriction on those already granted. No reason has ^ been or can be assigned, for thus concealing an intention to nar- ', row the discretion of the national legislature, under words which i purport to enlarge it. * * * The result of the most careful and attentive consideration be- - stowed upon this clause is, that if it does not enlarg-e. it cannot be t construed to restrain the powers of Congress, or to impair the right < of the legislature to exercise its best judgment in the selection of . measures, to carry into execution the constitutional powers of the government . If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respect- ing the right to legislate on that vast mass of incidental powers which must be involved in the Constitution, if that instrument be not a splendid bauble. We admit, as all must admit, that the powers of the govern- ment are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must al- low to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execu- tion, which will enable that body to perform the high duties as- signed to it, in the manner most beneficial to the people. Let the end be legitimate, let it be wit hin the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit ot the Constitution, are constitutional. That a corporation must be considered as a means not less usual, not of higher dignity, not more requiring a particular specification than other means, has been sufficiently proved. * * * jf ^ cor- poration may be employed indiscriminately with other means to carry into execution the powers of the government, no particular reason can be assigned for excluding the use of a bank, if required for its fiscal operations. To use one, must be within the discre- tion of Congress, if it be an appropriate mode of executing the powers of government. That it is a convenient, a useful, and essential instrument in the prosecution of its fiscal operations, is not now a subject of controversy. * * * But were its necessity 86 POWERS OF CONGRESS less apparent, none can deny its being an appropriate measure; and if it is, the degree of its necessity, as has been very justly ob- served, is to be discussed in another place. * * * After this declaration, it can scarcely be necessary to say, that the existence of state banks can have no possible influence on the question. No trace is to be found in the Constitution of an in- tention to create a dependence of the government of the Union on those of the states, for the execution of the great powers assigned to it. * * * The choice of means implies a right to choose a_ national bank in preference to state banks, and Congress alone can make the electionT After the most deliberate consideration, it is the unanimous and decided opinion of this court, that the act to incorporate the Bank of the United States is a law made in pursuance of the Constitu- tion, and is a part of the supreme law of the land . * * * [The law of Maryland was then held void. This part of the case is printed post, p. 274.], Judgment reversed. LEGAL TENDER CASES (1871) 12 Wall. 457, 532-544, 20 L. Ed. 287, Mr. Justice Strong (upholding the issue of federal legal tender paper money during the Civil War) : " The powers conferred upon Congress must be regarded as related to each other, and all means for a common end. Each is but part of a system, a constituent of one whole. No single power is the ultimate end for which the Constitution was adopted. It may, in a very proper sense, be treated as a means for the accom- plishment of a subordinate object, but that object is itself a means designed for an ulterior purpose. Thus the power to levy and col- lect taxes, to coin money and regulate its value, to raise and sup- port armies or to provide for and maintain a navy, are instruments for the paramount object, which was to establish a government, sovereign within its sphere, with capability of self-preservation, thereby forming a union more perfect than that which existed under the old Confederacy. " The same may be asserted also of all the non-enumerated pow- ers mcluded m the authority expressly given 'to make all laws which shall be necessary and proper for carrying into execution the specified powers vested in Congress, and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof.' It is impossible to know what those non-enumerated powers are, and what is their nature an? extent, without considering the purposes they were intended to. " subserve. Those purposes, it must be noted, reach beyond the mere execution of all powers definitely intrusted to Congress and GENERAL PRINCIPLES 87 mentioned in detail. They embrace the execution of all other pow- ers ^vested by the Constitution in the government of the United States, or in any department or officer thereof. It certainly was intended to confer upon the government the power ol selt-preser- vation. * * * That would appear, then, to be a most unrea- sonable construction of the Constitution which denies to the gov- ernment created by it, the right to employ freely every meanSj not prohibited, necessary fqr its preservation, and for the fulfill _ ment of its acknowledged duties. Such a right, we hold, was given ' by the last clause of the eighth section of its first article. The means or instrumentalities referred to in that clause, and authoriz- ed, are not enumerated or defined. In the nature of things enu- meration and specification were impossible. But they were left to the discretion of Congress, subject only to the restrictions that they be not prohibited, and be necessary and proper for carrying into execution the enumerated powers given to Congress, and all other powers vested in the government of the United States, or in any department or officer thereof. " And here it is to be observed it is not indispensable to the exist- ence of any power claimed for the federal government that it can be lound specified in the words of the Constitution, or clearly^ and directly traceable to some one of the specified powers. Its! existence may be deduced tairlv from more than one of the sub- stantive powers expressly defined, or from them all combined. It is allowable to group together any number of them and infer from., them all that the power claimed has been conferred^ Such a treat- ment of the Constitution is recognized by its own provisions. This is well illustrated in its language respecting the writ of habeas corpus. The power to suspend the privilege of that writ is not expressly given, nor can it be deduced from any one of the particu- i larized grants of power. Yet it is provided that the privileges of . the writ shall not be suspended except in certain defined contin- gencies. This is no express grant of power. It is a restriction. But it shows irresistibly that somewhere in the Constitution power to suspend the privilege of the writ was granted, either by some one or more of the specifications of power, or by them all combin- ed. And, that important powers were understood by the people who adopted the Constitution to^have been created by it, powers not enumerated, and not included incidentally in any one of those enumerated, is shown by the amendments. The first ten of these were suggested in the conventions of the states, and proposed at the first session of the first Congress, before any complaint was made of a disposition to assume doubtful powers. The preamble to the resolution submitting them for adoption recited that the 'conventions of a number of the states had, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconsitruction or abuse of its powers, that further declaratory 88 POWERS OF CONGRESS and restrictive clauses should be added.' This was the origin of the amendments, and they are significant. They tend plainly to show that, in the judgment of those who adopted the Constitu- tion, there were powers created by it, neither expressly specified nor deducible from any one specified power, or ancillary to it alone, but which grew out of the aggregate of powers conferred upon the government, or out of the sovereignty instituted. Most of these amendments are denials of power which had not been expressly granted, and which cannot be said to have been neces- sary and proper for carrying into execution any other powers. Such, for example, is the prohibition of any laws respecting the establishment of religion, prohibiting the free exercise thereof, or abridging the freedom of speech or of the press. "And it is of importance to observe that Congress has often exercised, without question, powers that are not expressly given nor ancillary to anv single enumerated power. Powers thus ex- ercised are what are called by Judge Story, in his Commentaries on the Constitution, resulting powers , arising from the aggregate powers of the government. He mstances the right to sue and ■' make contracts. Many others might be given. The oath required ^by law from officers of the government is one. So is building a capitol or a presidential mansion, and so also is the penal code. * * * Another illustration of this may be found in connection with the provisions respecting a census. The Constitution orders an enumeration of free persons in the different states every ten years. The direction extends no further. Yet Congress has re- peatedly directed an enumeration not only of free persons in the states, but of free persons in the territories, and not only an enu- meration of persons but the collection of statistics respecting age, sex, and production. Who questions the power to do this? "Indeed, the whole history of the government and of congres- sional legislation has exhibited the use of a very wide discretion, even in times of peace and in the absence of any trying emergen- cy,, in the selection of the necessary and proper means to carry into effect the great objects for which the government was framed, and this discretion has generally been unquestioned, or, if ques- tioned, sanctioned by this court. This is true not only when an attempt has been made to execute a single power specifically given, but equally true when the means adopted have been appropriate to the execution, not of a single authority, but of all the powers creat- ,ed by the Constitution. Under the power to establish post-offices and post-roads Congress has provided for carrying the mails, pun- ishing theft of letters and mail robberies, and even for transporting the mails to foreign countries. Under the power to regulate com- merce, provision has been made by law for the improvement of har- bors, the establishment of observatories, the erection of light- houses, break-waters, and buoys, the registry, enrolment, and con- GENERAL PRINCIPLES 89 struction of ships, and a code has been enacted for the government of seamen. Under the same power and other powers over the revenue and the currency of the county, for the convenience of the treasury and internal commerce, a corporation known as the Unit- ed States Bank was early created. To its capital the government subscribed one-fifth of its stock. But the corporation was a pri- vate one, doing business for its own profit. * * * "In Fisher v. Blight, 2 Cranch, 358, 2 L. Ed. 304, * * * a law giving priority to debts due to the United States was ruled to be constitutional for the reason that it appeared to Congress to be an eligible means to enable the government to pay the debts of the Union. * * * " Before we can hold the Legal Tender Acts unconstitutional,^ we must be convmced thev were not appropriate means, or means conducive to the execution of anv or all of the powers of Congress, or of the government, not appropriate in any plain degree (for we are not judges of the degree of appropriateness), or we must hold that they were prohibited. This brin gs ns tn tVip ingn irv whether thev were, when enacted, appropriate instrumentalities for carry- ' ing into ettect, or executing any ot the known powers of Congress, ' or of any department of the government- Plainly, to this inquiry, ' a consideration of the time when they were enacted, and of the cir- < cumstances in which the government then stood, is important. It - is not to be denied that acts may be adapted to the exercise of , lawful power, and appropriate to it, in seasons of exigency, which ' would be inappropriate at other times. "We do not propose to dilate at length upon the circumstances in which the country was placed, when Congress attempted to' make treasury notes a legal tender. They are of too recent occur- * rence to justify enlarged description. Suffice it to say that a civil war was then raging which seriously threatened the overthrow of the government and the destruction of the Constitution itself. It demanded the equipment and support of large armies and navies, and the employment of money to an extent beyond the capacity of all ordinary sources of supply. Meanwhile the public treasury was nearly empty, and the credit of the government, if not stretched to its utmost tension, had become nearly exhausted. * * * It was at such a time and in such circumstances that Congress was called upon to devise means for maintaining the army and navy, for securing the large supplies of money needed, and, indeed, for the preservation of the government created by the Constitution. It was at such a time and in such an emerg^ency , that the Legal Tender Acts were passed. Now, if it were certain that nothing el se would have supplied the absolute necessities oF the treasury, that nothing else would have enabled the govern- ^ ment to maintain its armies and navy, that nothing else would " have saved the government and the Constitution from destruction. iL 90 POWERS OF CONGRESS while the Legal Tender Acts would, could any one be bold enough to assert that Congress transgressed its powers? * * * "But if it be conceded that some other means might have been chosen for the accomplishment of these legitimate and necessary- ends, the concession does not weaken the argument. It is urged now, after the lapse of nine years, and when the emergency has passed, that treasury notes without the legal tender clause might have been issued, and that the necessities of the government might thus have been supplied. Hence it is inferred there was no neces- sity for giving to the notes issued the capability of paying private I debts. At best this is mere conjecture. But admitting it to be true, what does it prove? Nothing mnfp tban tViat Conq-ress had the choice of means for a legitimate end, each appropriate, and, adapted to that end, though, perhaps, in different degrees! What then ? Can this court say that it ought to have adopted one rather than the other? * * * , , " The rules of construction heretofore adopted, do not demand that the relationship between the means and the end shall be direct and immediate. * * * The case of Veazie Bank v. Fenno, 8 Wall. 533, 19 L,. Ed. 482, presents a suggestive illustration. There a tax of ten per cent, on state bank notes in circulation was held constitutional, not merely because it was a means of raising revenue, but as an instrument to put out of existence such a cir- culation in competition with notes issued by the government. There, this court, speaking through the Chief Justice, avowed that it is the constitutional right of Congress to provide a currency for the whole country; that this might be done by coin, or United States notes, or notes of national banks; and that it cannot be questioned Congress may constitutionally secure the benefit of such a currency to the people by appropriate legislation. It was said there can be no question of the power of this government to emit bills of credit; to make them receivable in payment of debts to itself; to fit them for use by those who see fit to use them in all the transactions of commerce; to make them a currency uni- form in value and description, and convenient and useful for cir- culation. Here the substantive power to tax was allowed to be employed for improving the currency. It is not easy to see why. 11 state bank notes ca n be taxed out of existence for the purposes of indirectly making united States notes more convenient and u^efiil for commercial purposes, the same end may notbe secured directlv by making them a lep^al tender. " * [BradIvE;y, J., gave a poncurring opinion, and Chase, C. J., and Clifford and Field, JJ., gav£ dissenting opinions. Nelson, J., also dissented.] 4 The principal case overruled Hepburn v. Griswold, 8 Wall. 603, 19 L. Ed. 513 (1870), which had held the Legal Tender Acts invalid as to debts con- tracted prior to their passage, upon reasoning which equally invalidated them GENERAL PKIN0IPLE3 91 KANSAS V. COLORADO (1907) 206 U. S. 46, 89-92, 27 Sup. Ct. 655, 51 L. Ed. 956, Mr. Justice Brewer ( dismissing- a petition of intervention filed by the United States in a suit between Kansas and Colorado to determine their respective ri^ht§ to the use of the Arkansas river for irrigation purposes . saiH petition heinfy based upon an alleged superior right of the national government to con- trol the whole system of reclaimi nf f arjH lanHs tn a state, whether! owned by the United States or not) : 1 "That involves the f juestinn whether the reclamation of arid lands is one of the powers granted tn the g^eneral government. As here- tofore Stated, the constant declaration of this court from the begin- ning is that this government is one of enumerated powers. * * * Turning to the enumeration of the powers granted to Congress by the eighth section of the first article of the Constitution, it is enough to say that no one o f ttipm, V seouentlv. the revenue derived from them, bv excluding from the market the particular kind described. 'This consequence is too remote and too uncertain to warrant us in saying that the prohibition is an appropriate and plainlv adapted means for carrying into execution the power of laying and col- lecting taxes. There is, indeed, no reason for saying that it was regarded by Congress as such a means, except that it is found in an act imposing internal duties. Standing by itself, it is plainly a regulation of police; and that it was so considered, if not by the Congress which enacted it, certainly by the succeeding Con- gress, may be inferred from the circumstance, that while all spe- cial taxes on illuminating oils were repealed by the Act of July 20th, 1868, which subjected distillers and refiners to the tax on sales as manufacturers, this prohibition was left unrepealed. As a police regulation, relating exclusively to the internal trade of the states, it can only have effect where the legislative authority of Congress excludes, territorially, all state legislation, as for example, in the District of Columbia. Within^ state limits, it can ha ve no consti- tutional operation." MONONGAHELA NAVIGATION COMPANY v. UNITED STATES (1893) 148 U. S. 312, 324, 335-337, 341, 343, 13 Sup. Ct. 622, 37 L. Ed. 463, Mr. Justice Brewer ( holding invalid a federal statute authorizing condemnation proceedings to acquire a lock and dam constructed by the Monongahela Company under a f ran- chise from Pennsylvania to collect tolls for the use there of, the statute expressly forbidding the payment of anything for said fran- chise) : '"I^he question presented is not whether the United States has the power to condemn and appropriate this property of the Monon- gahela Company, for that is conceded, but how much it must pay as compensation therefor . Obviously this question, as all others which run along the line of the extent of the protection the indi- vidual has under the Constitution against the demands of the gov- ernment, is of importance, for in any society the fullness and suf- ficiency of the securities which surround the individual in the use 6ENHEAL PRINCIPLES 95 and enjoyment &f his property constitute one of the most certain tests of the character and value of the government. The first 10 amendments to the Constitution, adopted as they were soon after the adoption of the Constitution, are in the nature of a bill of rights, and were adopted in order to quiet the apprehension of many that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be inalienable rights. * * * " Upon what does the right of Congress to interfere in the matter rest? Simply upon the power to regulate commerce. This is one^ of the great powers of the national government, one whose exist- ence and far-reaching extent have been affirmed again and again ' by this court. * * * " But, like the other powers granted to Congress by the Consti- tution, the power to regulate commerce is subject to all the limi- tations imposed by such instrnmpnt, and _am ong them is that of the htth amendment, we have heretofore quoted. Congress has su- preme control over the regulation of commerce, but if, in exercis- ing that supreme control, it deems it necessary to take private prop- erty, then it must proceed subject to the limitations imposed by this fifth amendment, and can take only on payment of just com- pensation. The power to regulate commerce is not given in any broader terms than that to establish post offices and post roads; but, if Congress wishes to take private property upon which to build a post office, it must either agree upon the price with the owner, or in condemnation pay just compensation therefor. And if that property be improved under authority of a charter granted by the state, with a franchise to take tolls for the use of the im- provement, in order to determine the just compensation such fran- chise must be taken into account. * * * If a man's house must be taken, that must be paid for; and, if the property is held and improved under a franchise from the state, with power to take tolls, that franchise must be paid for, because it is a substantial element in the value of the property taken. So. coming to the, case before us. whil e the power of Congress to take this nronerty js unquestionable, yet the power to take is subject to the consti- . tutidnal limitation of just compensation. It should be noticed that here there is unquestionably a taking of the property, and not a mere destruction, * * * and * * * that, after taking this property, the government will have the right to exact the same tolls the navigation company has been receiving. It would seem sjrange that if. bv asserting its right to take the property, the gov- ernment could strip it largely of its value, destroying all that value which comes ^rom the receipt of tolls, and having taken the prop- erty at this reduced valuation, immediately possess and enjoy all the profits from the collection ol tne same tolls.. * * * 96 POWBES OF CONGRESS " The theory of the government seems to be that the right of the navigation company to have its property in tl^e river, and the franchises given by the state to take tolls for the use thereof, are conditional only, and that whenever the government, in the exer- cise of its supreme power, assumes control of the river, it destroys both the right of the company to have its property there and the franchise to take tolls. But this is a misconception. The franchise is a vested rif^ht. The state has power to grant it. It may retake it, as it may take other private property, for public uses, upon the payment of just compensation. A like, though a superior, power exists in the national government. It may take it for public pur- poses, and take it even against the will of the state ; but it can no more take the franchise which the state has given than it can any private property belonging to an individual. * * * "It is also suggested that the government does not take this franchise: that it does not need anv anthnrifv frnm thp statp fnr the exaction of tolls, if it desires to exact them; that it only ap- propriates the tangible property, and then either makes the use of it free to all, or exacts such tolls as it sees fit, or transfers the property to a new corporation of its own creation, with such a franchise to take tolls as it chooses to give. But this franchise goes with the property : and the navigation company, which owned it, is deprived of it. itie government takes it away from the com- pany, whatever use it may make of it; and the question of just compensation is not determined by the value to the government which takes, but the value to the individual from whom the prop- erty is taken; and when by the taking of the tangible property the owner is actually deprived of the franchise to collect tolls, just compensation requires payment, not merely of the value of the tangible property itself, but also of that of the franchise of which he is deprived." II. Various Enumerated Powers • McCRAY V. UNITED STATES. (Supreme Court of the United States, 1904. 195 U. S. 27, 24 Sup. Ct. 769 49 L. Ed. 78, 1 Ann. Cas. 561.) [Error to the United States District Court for the Southern Dis- trict of Ohio. A federal statute (Act May 9, 1902, c. 784, 32 Stat. 193 [U. S. Comp. St. Supp. 1911, p. 1339] amending Act Aug. 2, 1886, c. 840, 24 Stat. 209 [U, S. Comp. St. '1901, p. 2228n imposed a tax of 10 cents a p ound unon all nlenmargaripp ar tificially color- • For discussion of principles, see Black, Const Law (3d Ed.) § 105. VARIOUS ENUMERATED POWERS 97 ed to resemble butter. The United States sued McCray for statu- tory penalties for his failure to pay this tax on certain oleomar- garine, and he alleged that said coloration was nnt unheal thful. that said tax wa s so high as t o make it impossible to sell such oleomargarine in competition with butter, that there was no de- mand for uncolored oleomargarine, and that the result of said tax would be to destroy the oleomargarine industry^ The govern- ment's demurrer to this answer was sustained and judgment ren- g dered thereon.] "* Mr. Justice White. * * * The summary which follows em- bodies the propositions contained in the assignments of error, and the substance of the elaborate argument by which those assign- ments are deemed to be sustained. Not denying the general power of Congress to impose excise taxes, and conceding that the acts in question, oti their face, purport to levy taxes of that character, the propositions are these : (a) That the power of internal taxation which the Constitution confers on Congress is given to that body for the purpose of rais- ing revenue, and that the tax on artificially colored oleomargarine is void because it is of such an onerous character as to make it manifest that the purpose of Congress in levying it was not to raise revenue, but to suppress the manufacture of the taxed article. (b) The power to regulate the manufacture and sale of oleo- margarine being solely reserved to the several states, it follows that the acts in question, enacted by Congress for the purpose of suppressing the manufacture and sale of oleomargarine, when artificially colored, are void, because usurping the reserved power of the states, and therefore exerting an authority not delegated to Congress by the Constitution. (c) Whilst it is true — so the argument proceeds — that Congress, in exerting the taxing power conferred upon it, may use all means appropriate to the exercise of such power, a tax which is fixed at such a high rate as to suppress the production of the article taxed is not a legitimate means to the lawful end, and is therefore be- yond the scope of the taxing powen * * * (f) * * * As the burdens which the acts impose are so onerous and so unjust as to be confiscatory , the acts are void, be- cause they amount to a violation of those fundamental rights which it is the duty of every free government to protect. * * * s^Q * * * come, first, to ascertain how far, if at all, the motives or purposes of Cony ress are open to ji idirial inquiry in considering the power of that body to enact the laws in question. Having determined the question of our right to consider motive or purpose, we shall then approach the propositions relied on by the light of the correct rule on the subject of purpose or mo- tive. * * * ^ Hall Cases Oonst.L. — 7 98 POWERS OP CONGRESS No instan(^e is afforded fr nm tlip fniinHatinn of the g overnment where an act which was within a power conferred, was declared to be repugnant to the Constitution, because it appeared to the ju- dicial rnind that the particular exertion oi constitutional power was either unwise or uniu^ * * * It is, however, argued, if a lawful power may be exerted for an unlawful purpose, and thus, by abusing the power, it may be made to accomplish a result not intended by the Constitution, all limita- tions of power must disappear, and the grave function lodged in the judiciary, to confine all the departments within the authority conferred by the Constitution, will be of no avail. This, when re- duced to its last analysis, comes to this : that, because a particu- lar department of the government may exert its lawful powers with the object or motive of reaching an end not justified, there- fore it becomes the duty of the judiciarv to restrain the exercise of a lawful power wherever it seems to the judicial mind that such lawful power has been abused.. But this reduces itself to the contention that, under our constitutional system, the abuse by one, department of the government of its lawful powers is to be cor- rected by the abuse of its powers bv another departpit^pj- . 1 l^he proposition, it sustained, would destroy all distinction be- tween the powers of the respective departments of the govern- ment. * * * jt is^ of course, true, as suggested, that if there be no authority in the judiciary to restrain a lawful exercise of power by another department of the government, where a wrong motive or purpose has impelled to the exertion of the power, that abuses of a power conferred may be temporarily effectual. The remedy for this, however, lies, not in the abuse by the judicial au- thority of its functions, but in the people, upon whom, after all^ under our inst itut ions, reliance must be placed for the correction of abuses committea in the exercise of a l^;vyful power. * * * The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful pur- pose or motive has caused the power to be exerted. As we have previously said: from the beginning no case can be found an- nouncing such a doctrine, and, on the contrary, the doctrine of a number of cases is inconsistent with its .existence. * * * In Veazie Bank v. Fenno, 8 Wall. 533, 19 L. Ed. 482, where a tax levied by Congress on the cirr nl^ti'ng n^^if g ni state banks was assailed on the giQli nd that the tax was intended to destroy the circulat ion o f such notes, and was, besides, the exercise of a power to tax a subject not conferred upon Congress, it was said, as to the first contention (p. 548, L,. Ed. p. 487) : "It is insisted, how- ever, that the tax in the case before us is excessive, and so exces- sive as to indicate a purpose on the part of Congress to destroy the franchise of the bank, and is, therefore, beyond the constitu- VARIOUS ENUMERATED POWERS 99 tional power of Congress. The first answer to this is that the ju- dicial cannot prescribe to the legislative department of the gov- ernment limitations upon the exercise of its acknowledged pow- ers. The power to tax may be exercised oppressively upon per- sons, but the responsibility of the legislature is not to the courts, but to the people by whom its members are elected. So, if a par- ticular tax bears heavily upon a corporation, or a class of corpora- tions, it cannot, for that reason only, be pronounced contrary to the Constitution." * * * In Treat v. White, 181 U. S. 264, 45 L. Ed. 853, 21 Sup. Ct. 611, referring to a stamp duty levied by Congress, it was observed "" (p. 268, L. Ed. p. 855, Sup. Ct p. 613) : "The power of Congress in this direction is unlimited. It does not come within the prov- ince of this court to consider why agreements to sell shall be sub- ject to the stamp duty, and agreements to buy not. It is enough that Congress, in this legislation, has imposed a stamp duty upon the one, and not upon the other." In Patton v. Brady, 184 U. S. 608, 46 L. Ed. 713, 22 Sup. Ct. 493, considering another stamp duty levied by Congress, it was again said (p. 623, L,. Ed. p. 720, Sup. Ct. p. 499) : "That it is no part of the function of a court to inquire into the reasonableness of the excise, either as respects the amount, or the property upon which it is imposed." It being thus demonstrated t hat the motive or purpose of Con- gress in af]npti ng tVip arfg 117 question mav not be inquired into, we are brought to consider the contentions relied upon to show that the acts assailed were beyond the power o f Congress, putting entirely out of view all considerations based Upon purpose or mor tive. 1. Undoubtedly, in determining whether a particular act is with- in a granted power, its scope and effect is to be considered. Ap- plying this rule to the acts assailed, it is self-evident that on their face they levy an excise tax. That being their necessary scope and operation, it follows that the acts are within the grant of power. The argument to the contrary rests on the proposition that, although the tax be within the power, as enforcing it will destroy or restrict the manufacture of artificially colored oleomar- i garine, therefore the power to levy the tax did not obtain. This, however, is but to say that the question of power depends, not upon the authority conferred by the Constitution, but upon what rtiay be the consequence arising from the exercise of the lawful " authority . 1= f * The proposition now relied upon was urged in Knowlton v. Moore, 178 U. S. 41, 44 L. Ed. 969, 20 Sup. Ct. 747, and was overruled. * * * 2. The proposition that where a tax is imposed which is within the grant of powers, and which does not conflict with any express constitutional limitation, the courts may hold the tax to be void • 100 POWERS OF CONGRESS nr because I't is dppTnpd that the tax is too hie^ h, is absolutely dis- posed of by the opinions in the cases hitherto cited. * * * 4. Lastly we come to consider the argument that, even though as a general rule a tax of the nature of the one in question would be within the power of Congress, in this case the tax should be held not to be within such power, because of its effect. This is . based on the contention that, as the tax is so large as to destroy 'the business of manufacturing oleomargarine artificially colored to look like butter, it thus deprives the manufacturers of that ar- ticle of their freedom to engage in a lawful pursuit, and hence, ir- ••respective of the distribution of powers made by the Constitution, the taxing laws are void, because they violate those fundamental , rights which it is the duty of every free government to safeguard, and which, therefore, should be held to be embraced by implied, though none the less potential, guaranties, or, in any event, to be within the protection of the due process clause of the fifth amend- ment. Let us concede, for the sake of argument only, the premise of fact upon which the proposition is based. Moreover, concede, for the sake of argument only, that even although a particular exer- tion of power by Congress was not restrained by any express limitation of the Constitution, if, by the perverted exercise of such power, so great an abuse was manifested as to destroy funda- mental' rights which no free government could consistently vio- late, that it would be the duty of the judiciary to hold such acts to be void upon the assumption that the Constitution, by necessary implication, forbade them. Such concession, however, is not controlling in this case. This follows when the nature of oleomargarine, artificially colored to look like butter, is recalled. As we have said, it has been conclu- sively settled by this court that the tendency of that article to de- ceive the public into buying it for butter is such that the states may, in the exertion of their police powers, without violating the due process clause of the fourteenth amendment, absolutely pro- hibit the manufacture of the article.. It hence results, that even although it be true that the effect of the tax in question is to re- press the manufacture of artificially colored oleomargarine, it can- not be said that such repression destroys rie ; -hts which no , free government could destroy, and, therefore, no ground exists to sus- tain the proposition that the judiciary may invoke an implied prohibition, upon the theory that to do so is essential to save such rights from destruction. And the same considerations dispose of the contention based upon the due process clause of the fifth amendment. That provision, as we have previously said, does no_t withdraw or expressly limit the grant of power to tax, conferred upon Congress by the Constitution. From this it follows, as we Ifave also previously declared, that the judiciary is without author- usWr VARIOUS ENUMERATED POWERS \ lOl ity to avoid an act of Congress exerting the taxing power, even^in a case where, to the judicial mind, it seems that Congress had, in putting such power in motion, abused its lawful authority by levy- ing a tax which was unwise or oppressive, or the result of the enforcement of which might be to indirectly afifect subjects not within the powers delegated to Congress. * * * Judgment affirmed. [Fui^LEE, C. J., and Brown and Peckham, JJ., dissented.] FLINT V. STONE TRACY CO. (1911) 220 U. S. 107, 147-152, 31 Sup. Ct. 342, 55 L. Ed. 389, Ann. Cas. 1912B, 1312, Mr. Justice Day ( upholding a federal excise tax, equivalent to 1 per cent, of its net income above $5.000. levied upon the doing of business in the United States by any corporation or joint stock companvl : "We proceed to consider whether * * * the statute is con- stitutional. "It is contended that it is. not; certainly so far as the tax is measured by the income of bonds nontaxable under federal stat- utes, and municipal and state bonds beyond the federal power of I taxation^ And so of real and personal estates, because as to such estates the tax is direct , and required to be apportioned according to population among the states. It is insisted that such must be the holding- unless this court is prepared to reverse the income < tax cases decided under the act of 1894 . [28 Stat, at L. 509, chap. J 349.] Pollock V. Farmers' Loan & T. Co., 157 U. S. 429, 39 L. Ed. 759, 15 Sup. Ct. 673, s. c. 158 U. S. 601, 39 L. Ed. 1108, 15 Sup. Ct. 912. "The applicable provisions of the Constitution of the United States in this connection are found in article 1, § 8, clause 1, and in article 1, § 2, clause 3; and article 1, § 9, clause 4. They are re- spectively : " ' The Congress shall have power to lay and collect taxes, du- ties, imposts, and excises, to pav the debts and provide for the common defense and general welfare of the United States; but ' all duties, imposts, and excises shall be uniform throughout the United States. ' " ' K.epresentatives and direct taxes shall be apportioned amons ; ^ the several states which may be included within this Union, ac- cording to their respective numbers./ " ' No capitation or other direct tax shall be laid, unless in pro- p ortion to the census or enumeration hereinbefore directed to be taken . "It was under the latter requirement as to apportionment of di- rect taxes according to population that this court in the Pollock 4( 102 POWERS OF CONGRESS Case held the statute of 1894 to be unconstitutional. ' Upon the rehearing of the case Mr. Chief Justice Fuller, who spoke for the court, sumrnarizing the effect of the decision, said : 'We have con- sidered the act only in respect of the tax on income derived from real estate, and from invested personal property, and have not commented on so much of it as bears on gains or profits from business, privileges, or employments, in view of the instances in which taxation on business, privileges, or employments has as- sumed the guise of an excise tax and been sustained as such.' 158 4, U. S. 635. "And as to excise taxes, the chief justice said: ' We do not •■ mean to say thaj: an act laying by apportionment a direct tax on. all real estate and personal property, or the income thereof, might not also lay excise taxes on business, privileges, employments, and_ vocations? ^ (Page 637.) "The Pollock Case was before this court in Knowlton v. Moore, k. 178 U. S. 41, 44 Iv. Ed. 969, 20 Sup. Ct. 747. In that case this court sustained an excise tay upon the transmission of property by inheritance. ' It was contended there, as here, that the case was ruled by the Pollock Case, and of that case this court, speak- ing by the present chief justice, said : " "The issue presented in the Pollock Case was whether an in- come tax was direct within the meaning of the Constitution. The contentions which the case involved were thus presented. On the one hand, it was argued that only capitation taxes and taxes on land as such were direct, within the meaning of the Constitution, considered as a matter of first impression, and that previous ad- judications had construed the Constitution as having that import. On the other hand, it was asserted that, in principle, direct taxes, in the constitutional sense, emhraced not only taxes on land and capitation taxes, but all burdens laid on real or personal property "^ because of its ownership, which were equivalent to a direct tax on ^ such property, and it was affirmed that the prev ious adjudications "^ of this court had settled nothing to the contrary ._ ******** " 'Undoubtedly, in the course of the opinion in the Pollock Case, it was said that if a tax was direct within the constitutional sense, the mere erroneous qualification of it as an excise or duty would not take it out of the constitutional requirement as to apportion- ment. But this language related to the subject-matter under con- sideration, and was but a statement that a tax which was in itself direct, because imposed upon protiertv solely by reason of its owner shij). could not be changed by affixing to it the qualification of excise or duty. Here we are asked to decide that a tax is a direct tax on property which has at all times been considered as the antithesis of such a tax; that is, that it has ever been treated VARIOUS BNUMBEATBD POWERS 103 as a duty or excise, because of the particular occasion which gives rise to its levy. ******** " 'Considering that the constitutional rule of apportionment had its origin in the purpose to prevent taxes on persons solely be- cause of their general ownership of property from being levied by any other rule than that of apportionment, two things were de- cided by the court: First, that no sound distinction existed be- , tween a tax levied on a person solely because of his gener al own- ership of real property, and the same tax im p osed solel y because, of his general ownership of personal property. Secondly , that the tax on the income derived from such property, real or personal- was the legal equivalent of a direct tax on the property from which said income was derived, and hence must be apportioned. These conclusions, however, lend no support to the contention that it was decided that duties, imposts, and excises, which are not the essential equiyalent of a tax on property generally, real or personal, solely because of its ownership, must be converted into direct taxes, because it is conceived that it would be demon- strated by a close analysis that they could not be shifted from the person upon whom they first fall.' "The same view was taken of the Pollock Case in the subse- quent case of Spi"eckels Sugar Ref. Co. v. McClain [192 U. S. 397, 24 Sup. Ct. 376, 48 L. Ed. 496.] "The act now under consideration does not impose direct taxa- tion upon property solely because of its ownership, but the tax is within the class which Congress is authorized to lay and collect under article 1, ,§ 8, clause 1 of the Constitution, and described generally as taxes, duties, imposts, and excises, upon which the limitation is that they shall be uniform throughout the United States. " Within the category of indirect taxation, as we shall have fur- ther occasion to show, is embraced a tax upon business done in a corporate capacity^ which is the subject-matter of the tax imposed in the act under consideration. The Pollock Case construed the tax there levied as direct, because it was imposed upon property simply because of its ownership. In the present case the tax is ' not payable unless there be a carrying on or doing of business in ' the designated capacity, and this is made the occasion for the tax, ^ measured by the standard prescribed. The difference between c the acts is not merely nominal, but rests upon substantial differ- > ences between the mere ownership of property and the actual doing of business in a certain way . "It is unnecessary to enter upon an extended consideration of the technical meaning of the term 'excise.' It has been the sub- ject-matter of considerable discussion, — the terms duties, imposts, and excises are generally treated as embracing the indirect forms 104 POWERS OF CONGRESS of taxation contemplated by the Constitution. As Mr. Chief Jus- tice Fuller said in the Pollock Case, supra : 'Although there have been from time to time intimations that there might be some tax which was not a direct tax nor included under the words "duties, imposts, and excises," such a tax for more than one hundred years of national existence has as yet remained undiscovered, notwith- standing the stress of particular circumstances has invited thor- ough investigation into sources of revenue.' [157 U. S. 557.] "And in the same connection the chief justice, delivering the opinion of the court in Thomas v. United States, 192 U. S. 363, 48 L. Ed. 481, 24 Sup. Ct. 305, in speaking of the words 'duties,' 'imposts,' and 'excises,' said : 'We think that they were used com- prehensively, to cover customs and excise duties imposed on importation, consumption, manufacture, and sale of certain com- modities, privileges, particular business transactions, vocations, occupations, and the like.' "Duties and imposts are terms commonly applied to levies made by governments on the importation or exportation of commodi- ties. Excises are 'taxes laid upon the manufacture, sale, or con- sumption of commodities within the country, upon licenses to pursue certain occupations, and upon corporate privileges.' Cool- ey. Const. Lim. (7th Ed.) 680. " The tax under consideration, as we have construed the statute, may be described as an excise upon the particular privilep-e of doing business in a corporate caoacitv. i. e.. with the advantages which arise from corporate or quasi corporate organization: or, when applied to insurance companies, for doing the business of such companies. As was said in the Thomas Case. 192 U. S. ^^^ supra, the requirement to pay such taxes involves the exercise of ju privileges, and the element of absolute and unavoidable demand r. is lacking. If business is not done in the manner described in the statute, no tax is payable. If we are correct in holding that this is an excise tax, there is nothing in the Constitution requiring such taxes to be apportioned according to population. Pacific Ins. Co. v. Soule, 7 Wall. 433, 19 L. Ed. 95 ; Springer v. United States, 102 U. S. 586, 26 L. Ed. 253; Spreckels Sugar Ref. Co. v. McClain, 192 U. S. 397, 48 L. Ed. 496, 24 Sup. Ct. 376." VARIOUS ENUMERATED POWERS 105 In re RAPIER. (Supreme Court of the United States, 1892. 143 V. S. 110, 12 Sup. Ot. 374, 36 L. Ed. 93.) F Petitions for hahea.s corpus for discharge from arrest under indictments charg 'in g' the mailing of a newspaper and a letter in violation of the federal Anti-Lotterv Act CAct Cong. Sept. 1^. 1890, c. 908, 26 Stat. 465 [U. S. Comp. St. 1901, p. 2659]), which forbade the mailing, carriage, or delivery by niail of any_niatter. concerning lotteries. 1 Mr. Chief Justice Fuller. * * * The question for deter- mination relates to the constitutionality of section 3894 of the Revised Statutes as amended by [26 Stat. 465, c. 908]. In Ex parte Jackson. 96 U. S. 727, 24 L,. Ed. 877, it was held that the power vested in Congress to establish post-oiifices and post-roads embraced the regulation of the entire postal system of the coun- try, and that under it Congress may designate what may be car - ried in the mail and what excluded ; that in excluding various ar- ticles trom the mails t he object of Congress is not to interfere witk the freedom of the press or with any other rights of the people, but to refuse the facilities for the distribution of matter deemed ijijunous by Congress to the public morals ; and that the trans - portation in any other way of matters excluded from the mails would not be forbidden! Unless we are prepared to overrule that decision, it is decisive of the question before us. It is argued that in Jackson's Case it was not urged that Con- gress had no power to exclude lottery matter from the mails; but it is conceded that the point of want of power was passed upon in the opinion. This was necessarily so, for the real question was the existence of the power, and not the defective exercise of it. And it is a mistake to suppose that the conclusion there expressed was arrived at without deliberate consideration. It is insisted that , the express powers of Congress are limited in their exercise to the objects for which they were intrusted, and that, in order to justify Congress in exercising any incidental or implied powers to carry into effect its express authority, it must appear that there' is some relation between the means employed and the legitimate ■ end. This is true : but, while the legitimate end of the exercise of • the power in question is to furnish mail facilities for the people . of the United States, it is also true that mail facilities are not re- quired to be furnished tor every purpose. The states, before the Union was formed, could establish post- offices and post-roads, and in doing so could bring into play the police power in the protection of their citizens from the use of the means so provided for purposes supposed to exert a demoralizing influence upon the people. When the power to establish post- 106 POWERS OP CONGRESS offices and post-roads was surrendered to the Congress, it was as a complete power; and the grant carried with it the right to ex- ercise all the powers which made that power effective. It is not necessary that Congress should have the power to deal with crime or immorality within the states in order to maintain that it pos_^ sesses the power to forbid the use of the mails in aid of the perpe- tration of crime or immorality. The argument that there is a distinction between mala prohibita and mala in se^ and that Congress might forbid the use of the mails in promotion of such acts as are universally regarded as mala in se, including all such crimes as murder, arson, burglary, etc., and the offense of circulating obscene books and papers, but cannot do so in respect of other matters which it might regard as criminal or immoral, but which it has no power itself to prohibit, involves a concession which is fatal to the contention of petition- ers, since it would be for Congress to determine what are within and what without the rule; but we think, there is no room for such a distinction here, and that it must be left to Congress, in the exercise of a sound discretion, to determine in what manner it the common belief of the ^ people, are adapted to prevent the spread of contagious diseases. In a free country, where the government is by the people, through their chosen representatives, practical legislation admits of no other standard of action, for what the people believe is for the common welfare must be accepted as tending to promote t he common wel- fare, whether it does in fact or not. Any other basis would conflict I with the spirit of the Constitution, and would sanction measures J opposed to a republican form of government. While we do not decide, and cannot decide, that vaccination is a preventive of small- pox, we take judicial notice of the fact that this is the common be^ lief of the p eople of the state, and, with this fact as a foundation]^ wehoiQ tnat the statute in question is a health law, enacted in a SCOPE AND LIMITS OP POWER 223 reasonable and proper exercise of the police power. " 179 N. Y. '2ib, 'y^ti.a. yy, :/U l. k. a. 796, 103 Am. St. Rep. 859, 1 Ann. Cas. 334. * * * The legislature assumed that some children, by reason of their condition at the time, might not be fit subjects of vaccination; and it is suggested — and we will not say without reason — that such is the case with some adults. But the defendant did not offer to prove that, by reason of his then condition, he was in fact not a fit subject of vaccination at the time he was informed of the require- ment of the regulation adopted by the board of health. * * * Until otherwise informed by the highest court of Massachusetts, we are not inclined to hold that the statute establishes the absolute rule that an adult must be vaccinated if it be apparent or can be shown with reasonable certainty that he is not at the time a fit subject of vaccination, or that vaccination, by reason of his then condition, would seriously impair his health, or probably cause his death. No such case is here presented. It is the cause of an adult who, for aught that appears, was himself in perfect health and a fit subject of vaccination, and yet, while remaining in the community, refused to obey the statute and the regulation adopted in execu- tion of its provisions for the protection of the public health and the public safety confessedly endangered by the presence of a danger- ous disease. * * * Judgment affirmed. [Brewer and Peckham, JJ., dissent.] /J^,,^ ^ ^^ MUGLER v. KANSAS. (Supreme Court of United States, 1887. 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205.) [Writs of error from Supreme Court of Kansas and an appeal from the United States Circuit Court for Kansas. Mugler was convicted of violating a Kansas statute enacted to carry into ef- fect an amendment of the state Constitution forbidding the manu- facture or sale of intoxicating liquor except for medical, mechani- cal, and scientific purposes. His offences consisted of selling beer manufactured before the stat ute went into effect, and of manur facturing beer m a brewerv Dunt several vears before the adoption of the amendment. Both convictions were upheld by the state Supreme Court. The third case was a proceeding against one Ziebold and his partner to have their brewery closed as a com- mon nuisance under the statute, and to have them enjoined from using the premises for the disposal of liquor. . The case was re- moved to the federal Circuit Court, where the state's suit was dis- missed. All cases were then brought here.] Mr. Justice Harlan. * * * That legislation bv a state prn- 224 THE POLICE POWER hibiting tVip mannf^ri-nre within her limits of intoxicating liquors, ho be there sold or bartered for general use as a beverage, does not necessarily infringe any right, privilege, or immunity seGurea by the Constitution of the United States, is made clear bv the decisions of this court, rendered before and since the adoption of the fourteenth amendment ; to some of w^hich, in view of questions to be presently considered, it will be well to refer. * * * [Here follow quotations from the License Cases, 5 How. 504, 12 L. Ed. 256, Bartemeyer v. Iowa, 18 Wall. 129, 21 L. Ed. 929, Boston Beer Co. V. Massachusetts, 97 U. S. 33, 24 E. Ed. 989, and Foster v. Kansas ex rel. Johnston, 112 U. S. 206, 5 Sup. Ct. 8, 97, 28 L. Ed. 696.] It is, however, contended, that, although the state may prohibit the manufacture of intoxicating liquors for sale or barter within her limits, for general use as a beverage, " no convention or legis- lature has the right, under our form of government, to prohibit any citizen from manufacturing for his own use, or for export, or storage, any article of food or drink not endangering or affecting ; the rights of others." The argument made in support of the -first ' branch of this proposition, briefly stated, is, that in the implied compact between the state and the citizen certain rights are reserv- ed by the latter, which are guaranteed by the constitutional provi- sion protecting persons against being deprived of life, liberty, or property, without due process of law, and with which the state cannot interfere ; that among those rights is that of manufacturing for one's use either food or drink; and that while, according to the doctrines of the Commune, the state may control the tastes, appetites, habits, dress, food, and drink, of the people, our system of government, based upon the individuality and intelligence of the citizen, does not claim to control him, except as to his conduct to others, leaving him the sole judge as to all that only affects him- self. ' It will be observed that the proposition, and the argument made in support of it, equally concede that the right to manufacture drink for one's personal use is 'subject to the condition that such manufacture does not endanger or affect the rights of others. If such manufacture does prejudicially affect the rights and interest.^ of the community, it follows, from the very premises stated, that society has the power To protect itself, by legislation, against the , i niunous consequences of that business. As was said in Munn v. Illinois, 94 U. S. 113, 124, 24 L. Ed. 77, while power does not exist with the whole people to control rights that are purely and exclu- sively private, government may require "each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another." _But by whom, or by what authoritv. it is to be determined whether the manufacture of particular articles of drink, either fof SCOPE AND LIMITS OF POWER 225 general use or for the personal use of the maker, will injuriously affect the public? Power to determine such questions, so as to bind all, must exist somewhere; else society will be at the mercy of the few, who, regarding only their own appetites or passions, may be willing to imperil the peace and security of the many, pro- vided only they are permitted to do as they please. Under our sys- tem that power is lodged with the legislative branch of the govern- ment. It belongs to that department to exert what are known as the police powers of the state, and to determine, primarily what measures are appropriate or needful for the protection of the pub- lic morals, the public health, or the public safety. It does not at all follow that every statute enacted ostensibly for the promotion of these ends, is to be accepted as a legitimate ex- ertion of the police powers of the state. There are, of necessity, limits beyond which legislation cannot rightfully go. * * * If^ therefore, a statute purporting to have been enacted to protect the public health, t he public morals, or the public safety, has no real or substantial relation lo ttiose objects, or is a palpable invasion of rights secured by the tundamental law, it is the dutv of the courts to so adjudge, and therebv give effect to the Constitution, Keeping in view these principles, as governing the relations of ^ the judicial and legislative departments of government with each^ other, it is difficult to perceive any ground for the iudiciarv to de- clare that the prnhihition by Kansas of the manufacture or sale, within her limits, of intoxicating liquors for general use there as a beverage, is not fairly adapted to the end of protecting the coni- munity against the evils which confessedly result from the exces- sive use of ardent spirits ^ There is no justification for holding that the state, under the guise merely of police regulations, is here aim- ing to deprive the citizen of his constitutional rights ; for we cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety, may be en- dangered by the general use of intoxicating drinks ; nor the fact, established by statistics accessible to every one, that the idleness, disorder, pauperism, and crime existing in the country are, in some degree at least, traceable to this evil. If, therefore, a state deems the absolute prohib iti on of the manufacture and sale, within hei^ limits, ot intoxicating uquors for other than medical, scientific, and manufacturing purposes, to be necessary to the peace and security of society, the courts cannot, without usurping legislative func; tions, override the will of the people as thus expressed by their chosen representatives . They have nothing to do with the mere policy of legislation. Indeed, it is a fundamental principle in our. institutions, indispen- sable to the preservation of public liberty, that one of the separate departments of government shall not usurp powers committed by Hall Cases Consi.L. — 15 226 THE POLICE POWER the Constitution to another department. And so, if, in the judg- ment of the legislature, the manufacture of intoxicating liquors for the maker's own use, as a beverage, would tend to cripple, if it did not defeat, the effort to guard the community against the evils, attending the excessive use of such liquors, it is not for the courts, ■ .upon their views as to what is best and safest for the community, to disregard the legislative determination of that question. So far from such a regulation having no relation to the general end sought- to be accomplished, the entire scheme of prohibition, as embodied in the Constitution and laws of Kansas, might fai l, i f the right oi p-ar.h citizen to manufacture intoxicating liquors for his own use as' a, beverage were recognized. Such a right does not inhere in citi- zenship. Nor can it be said that government interferes with or im- pairs any one's constitutional rights of liberty or of property, when it determines that the manufacture and sale of intoxicating drinks, for general or individual use, as a beverage, are, or may become, hurtful to society, and constitute, therefore, a business in which no one may lawfully engage. Those rights are best secured, in our government, by the observance, upon the part of all, of such regulations as are established by competent authority to promote the common good. No one may rightfully do that which the law- making power, upon reasonable grounds, declares to be prejudicial to the general welfare. * * * It is contended that, as the primary and principal use of beer is as a beverage; as their respective breweries were erected when it was lawful to engage in the manufacture of beer for every purpose ; as such establishments will become of no value as property, or, at least, will be materially diminished in value, if not employed in the manufacture of beer for every purpose ; the prohibition upon their being so employed is. in effect^ a. takinpf of propertv for public use without compensation, and depriving the citizen of his property;^ without due process of law^ In other words, although the state, in the exercise of her police powers, may lawfully prohibit the manu- facture and sale, within her limits, of intoxicating liquors to be used as a beverage, legislation having that object in view cannot be enforced against those who, at the time, happen to own property, the chief value of which consists in its fitness for such manufactur- ing purposes, unless compensation is first made for the diminution in the value of their property, resulting from such prohibitory en- actments. This interpretation of the fourteenth amendment is inadmissible. It cannot be supposed that the states intended, by adopting that amendment, to impose restraints upon the exercise of their powers for the protection of the safety, health, or morals of the communi- ty. * * * [Here follow statements of or quotations from Butchers' Union Co. v. Crescent. City Co., Ill U. S. 746, 4 Sup. Ct 652, 28 L,. Ed. 585 ; Stone v. Mississippi, post, p. 461, and New Or- SCOPE AND LIMITS OF POWER 227 leans Gas Co. v. Louisiana Light Co., post, p. 464, — all to the effect that the state cannot, even by contract, restrict its power to pro- tect the public health, morals, or safety.] The principle, that no person shall be deprived of life, liberty, or property, without due process of law, was embodied, in sub- stance, in the Constitutions of nearly all, if not all, of the states at the time of the adoption of the fourteenth amendment; ^nd it has never been regarded as incompatib le with t he principle, equal- ly vital, because essential to the peace and safety of society, that all property in this country is held under the implied obligation that the owner's use of it shall^ot be injurious to the communit ; ^ . Beer Co. v. Massachusetts; PTU. S. 25, 32, 24 L. Ed. 989; Com- monwealth v. Alger, 7 Cush. (Mass.) 53. * * * As already stated, the present case m ust be gove rne d by princi- ples that do not involve the power of eminent domain, in the exer- ^ cise of which property may not be taken for public use withouj : ; compensation . A prohibition simply upon the use of property for . purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, c annot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the state that its use by any one, for certain forbidden purposes, is prejudicial to the public interests. Nor can legislation of that character come, within the fourteenth amendment, in any case, unless it is apparent that its real object is not to protect the community, or to promote the general well-being, but, under the guise of police regulation, to deprive the owner of his liberty and property, without due process of law. The power which the states have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not — and, consistently with the existence and safety of organized society, cannot be — burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nui- sance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away trom an inno^ cent owner.. It is true, that, when the defendants in these cases purchased or erected their breweries, the laws of the state did not forbid the manufacture of intoxicating liquors. But the state did not there- 228 THE POLICE POWER by give any assurance, or come under an obligation/ that its legis- lation upon that subject would remain unchanged. Indeed, as was said in Stone v. Mississippi, above cited, the supervision of the pub- lic health and the public morals is a governmental power, "con- tinuing in its nature," and "to be dealt with as the special exigen- cies of the moment may require;" and that, "for this purpose, the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself." So in Beer Co. V. Massachusetts, 97 U. S. 32, 24 L. Ed. 989: "I f the public safety or the public morals require the discontinuance Of any manufacture or traffic, the hand of the legislature cannot be stayed from provid- ing for its discontinuance by any incidental inconvenience which mdividuals or corporations may suffer." ^ * * Judgments of Kansas Supreme Court affirmed. Decree of Circuit Court reversed. '(V- „ . „, „_-i._j c '^ ' ' (T^lfi ^ POWELL V. PENNSYLVANIA. (Supreme Court of United States, 1887. 127 U. S. 678, 8 Sup. Ct. 992, 1257, 32 L. Ed. 253.) [Error to the Supreme Court of Pennsylvania. A Pennsylvania statute forbade the manufacture, sale, or the keeping with intent to sell, of any oleaginous article designed to take the place of butter or cheese produced from pure, unadulterated milk or cream. Powell was convicted in a county quarter sessions court of violat- ing this statute by selling and keeping for sale packages of oleo- margarine plainly labeled and sold as such, which had been law- fully made in the state prior to the passage of the statute. The trial court refused to allow Powell to prove that the articles sold by him were wholesome articles of food, cleanly manufactured, and only differed from dairy butter in composition, in that they con- tained a slightly smaller percentage of butterine, a substance giv- ing flavor to butter, but adding nothing to its wholesomeness. The conviction was affirmed by the state Supreme Court.] Mr. Justice Harlan. * * * This case in its important as- pects is governed by the principles announced in Mugler v. Kan- sas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205. * * * The question, therefore, is whether the prohibition of the manufacture out of oleaginous substances, or out of any compound thereof other than that produced from unadulterated milk or cream from un- adulterated milk, of an article designed to take the place of but- ter or cheese produced from pure unadulterated milk or cream from unadulterated milk, or the prohibition upon the manufacture oi any imitation or adulterated butter or cheese, or upon the sell- ing or offering for sale, or having in possession with intent to sell, SCOPE AND LIMITS OF POWER 229 the same, as an article of food, is a lawful exercise by the state of the power to protect, by police regulations, .the public health. ^ The main proposition advanced by the defendant is that his en- joyment upon terms of equality with all others in similar circum- stances of the privilege of pursuing an ordinary calling or trade, and of acquiring, holding, and selling property, is an essential part of his rights of liberty and property, as guaranteed by the four- teenth amendment. The court assents to this general proposition as embodying a sound principle of constitutional law. But it cannot adjudge that the defendant's rights of liberty and property, as thus defined, have been infringed by the statute of Pennsylvania, without holding that, although it may have been enacted in good faith for the objects expressed in its title, namely, to protect the public health and to prevent the adulteration of dairy products and fraud in the sale thereof, it has, in fact, no real or substantial re- lation to those objects! Mugler v. Kansas, 123 U. S. 623, 661, 8 Sup. Ct. 273, 31 Iv. Ed. 205. The court is unable to affirm that this, l egislation has no real or substantial relation to such objects . It will be observed that the offer in the court below was to show by proof that the particular articles the defendant sold, and those in his possession for sale, in violation of the statute, were, in fact, wholesome or nutritious articles of food. It is entirely con- sistent with that offer that many, indeed, that most kinds of oleo- margarine butter in the market contain ingredients that are or may become injurious to health. The court cannot say, from anything of which it may take judicial cognizance, that such is not the fact. Under the circumstances disclosed in the record, and in obedience to settled rules of constitutional construction, it must be assumed that such is the fact. "Every possible presumption," Chief Justice Waite said, speaking for the court in Sinking Fund Cases, 99 U. S. 700, 718, 25 L. Ed. 496, "is in favor of the validity of a stat- ute, and this continues until the contrary is shown beyond a ration- al doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule." See, also, Fletcher v. Peck, 6 Cranch, 87, 128, 3 L. Ed. 162 ; Dartmouth College v. Woodward, 4 Wheat. 518, 625, 4 L,. Ed. 629; Livingston v. Darlington, 101 U. S. 407, 25 L. Ed. 1015. Whether the manufacture of oleomargarine, or imitation butter, of the kind described in the statute, is, or may be, conducted in' such a way, or with such skill and secrecy, as to baffle ordinary inspection, or whether it involves such danger to the public health as to require, for the protection of the people, the entire suppres-- sion of the business, rather than its regulation in such manner as to permit the manufacture and sale of articles of that class that do not contain noxious ingredients, are questions of fact and of public policy which belong to the legislative department to deter- 230 THE POLICE POWER mine. And as it does not appear upon the face of the statute, or froni any facts of which the court must take judicial cognizance, that it infringes rights secured by the fundamental law, the legis- lative determination of those questions is conclusive upon the courts. It is not a part of their functions to conduct investigations of facts entering into questions of public policy merely, and to sustain or frustrate the legislative will, embodied in statutes, as they may happen to approve or disapprove its determination of such questions. The power which the legislature has to promote the general welfare is very great, and the discretion which that department of the government has, in the employment of means to that end, is very large. While both its power and its discretion must be so exercised as not to impair the fundamental rights of life, liberty, and property; and while, according to the principles upon which our institutions rest, "the very idea that one man may be compelled to hold his life, or the means of living, or any ma- terial right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself;" yet, "in many cases of mere administration, the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judg- jnent, exercised either in the pressure of public opinion or by means of the suffrage." Yick Wo v. Hopkins, 118 U. S. 370, 6 Sup. Ct. 1064, 30 Iv. Ed. 220. The case before us belongs to the latter class. The Legislature of Pennsylvania, upon the fullest investigation, as we must con- clusively presume, and upon reasonable grounds ^, as must be as- sumed from the record, has determined that th e prohibition of the sale, or offering for sale, or havmg in possession to sell, for pur- poses of food, of any article manufactured out of oleaginous sub- stances or compounds other than those produced from unadult^ ^ ated milk or cream from unadulterated milk, to tak e the plarp ( ^j butter produced from unadulterated milk o r cream fro m unadulter- ated milk, will promote the public heal th, and prevent frauds in t he sale of such articles. If all that can be said of this legislation IS that it is unwise, or unnecessarily oppressive to those manu- facturing or selling wholesome oleomargarine, as an article of food, their appeal must he tn tVip Icp-i slature. or to the ballot-box,_ not to the judiciary. The latter cannot interfere without usurping powers committed to another department of government. It is argued, in behalf of the defendant, that if the statute in question is sustained as a valid exercise of legislative power, then nothing stands in the way of the destruction by the legislative department of the constitutional guarantees of liberty and proper- ty. But the possibility of the abuse of legislative power does n ot disprove its existence . 1 nat possibility exists even in reference to powers that are conceded to exist. Besides, the judiciary de- SCOPE AND LIMITS OF POWER 231 partment is bound not to give effect to statutory enactments that are plainly forbidden by the Constitution. This duty, the court has said, is always one of extreme delicacy; for, apart from the necessity of avoiding conflicts between co-ordinate branches of the government, whether state or national, it is often difficult to determine whether such enactments are within the powers grant- ed to or possessed by the legislature. Nevertheless, if the incom- patibility of the Constitution and the statute is clear or palpable, the courts must give effect to the former. And such would be the duty of the court if the state legislature, under the pretence of guarding the public health, the public morals, or the public safety, should invade the rights of life, liberty, or property, or other rights, secured by the supreme law of the land. * * * Judgment afHrmed. [Mr. Justice Field gave a dissenting opinion.] DENT V. WEST VIRGINIA. (Supreme Court of United States, 1889. 129 U. S. 114, 9 Sup. Ct. 231, 32 L. Ed. 623.) [Error to the Supreme Court of West Virginia. A statute of . 1882 made it a misdemeanor to practice medicine in the state un- less the practitioner obtained a certificate from the state bo ard oj health that he was a graduate of a reputable medical col lege, or^ upon examination by this board was found qualified to practice medicine, or had practiced medicine continuouslv in the sta te for" ten years prior to March 8. 1881. Dent had practiced in the state contmuously from 1876, and did not comply with any of the above alternative qualifications. His conviction in' the circuit court for a violation of the statute in 1882 was affirmed by the state Supreme Court. He alleged that the statute violated the fourteenth amend- ment, in depriving him without due process of law of a vested right to practice his profession.] Mr. Justice Field. * * * It is undoubtedly the right of every citizen of the United States to follow any lawful callin g. business, or profession he may choose, subject only to such re- strictions as are imposed upon all persons oi like age, sex, and condition. This right may in many respects be considered as a distinguishing feature of our republican institutions. Here all vocations are open to everyone on like conditions. All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or, as it is sometimes termed, the "estate," acquired in them — that is, the right to continue their prosecution — is often of great value to the possessors, and cannot be arbitrarily taken from them, any more than their real or personal property can be thus 232 THE POLICE POWER taken. But there is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed by the state for the protection of society. The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as in its judgment will secure or tend to secure them against the consequences of ignorance and incapacity, as well as of deception and fr^.ud. As one means to this end it has been the practice of different states, from time immemorial, to exact in many pursuits a certain de- gree of skill and learning upon which the community may confi- dently rely; their possession being generally ascertained upon an examination of parties by competent persons, or inferred from a certificate to them in the form of a diploma or license from an institution established for instruction on the subjects, scientific and otherwise, with which such pursuits have to deal. The nature and extent of the qualifications required must depend primarily upon the judgment of the state as to their necessity. If they are appropriate to the calling or profession, and attainable by reason- able study or application, no objection to their validity can be raised because of their stringency or difficulty. It is only when they have no relation to such calling or profession, or are unat- tainable by such reasonable study and application, that they can operate to deprive one of his right to pursue a lawful vocation. -bew professions require more careful preparation by one who seeks to enter it than that of medicine. It has to deal with all ! those subtle and mysterious influences upon which health and life depend, and requires not only a knowledge of the properties of vegetable and mineral substances, but of the human body in all its complicated parts, and their relation to each other, as well as their vt. influence upon the mind. The physician must be able to detect readily the presence of disease, and prescribe appropriate remedies for its removal. Every one may have occasion to consult him, but comparatively few can judge of the qualifications of learning and skill which he possesses. Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the requisite qualifica- tions. Due consideration, therefore, for the protection of society rnay well induce, the sta te to exclude from practice those who have not such a license, or who are found upon examination not to he fully qualified. The same reasons which control in imposing con- dition's, upon compliance with which the physician is allowed to practice in the first instance, may call for further conditions as new modes of treating disease are discovered, or a more thorough acquaintance is obtained of the remedial properties of vegetable and mineral substances, or a more accurate knowledge is acquired of the human system and of the agencies by which it is aflfected. It would not be deemed a matter for serious discussion that a SCOPE AND LIMITS OF POWER 233 knowledge of the new acquisitions of the profession, as it from time to time advances in its attainments for the relief of the sick and suffering, should be required for continuance in its practice, but for the earnestness with which the plaintiff in error insists that by being compelled to obtain the certificate required, and prevented from continuing in his practice without it, he is de- prived of his right and estate in his profession without due pro- cess of law. We perceive nothing in the statute which indicates an intention of the legislature to deprive one of any of his rights. No one has a right to practice medicine without having the neces- sary qualifications of learning and skill ; and the statute only re- quires that whoever assumes, by offering to the community his services as a physician, that he possesses such learning and skill, shall present evidence of it by a certificate or license from a body designated by the state as competent to judge of his qualifica- tions. * * * There is nothing of an arbitra r y character in the provisions qf the statute in question, it applies to all physicians, except thosg who may be called for a special case from another state. It im- ' poses no conditions which cannot be readily met: and it is made , enforceable in the mode usual in kindred matters , — that is, by regular proceedings adapted to the case. It authorizes an exam- ination of the applicant by the board of health as to his qualifica- tions when he has no evidence of them in the diploma of a repu- table medical college in the school of medicine to which he be- longs, or has not practiced in the state a designated period before March, 1881. If, in the proceedings under the statute, there should be any unfair or unjust action on the part of the board in refusing him a certificate, we doubt not that a remedy would be found in the courts of the state. But no such imputation can be made, for the plaintiff in error did not submit himself to the examination of the board after it had decided that the diploma he presented was in- sufficient. * * * Judgment affirmed." B "We cannot close Our eyes to the fact that legislation of this kind is on the increase. Like begets Uke, and every legislative session brings forth some new act in the interest of some new trade or occupation. The doctor, the lawyer, the druggist, the dentist, the barber, the horseshoer, and the plumber have already received favorable consideration at the hands of our Legislature, and the end is not yet, for the nurse and the undertaker are knocking at the door. It yyill not do to say that any occupation which may remotely afFpct. the public health Ip snhiect to this kind of legislation and control Our health, our comfort, and our well-being are materially affected by all of our sur- roundings — by the houses we live in, the clothes we wear, and the food we eat. The safety of the traveling public depends in no small degree on the skill and capacity of the section crews that build and repair our railroads, yet are we on this account to add the architect, the carpenter, the tailor, the shoemaker, those who produce and prepare our food, and all the rest to the ever-growing list? T^ so. it will be but a short time before a man cannot: en- gage in honest toil to earn his daily bread witnout nrst purchasing a license or permit from some board or commission. The public health is entitled to 234 THE POLICE POWER CITY ot CHICAGO v. NETCHER. {Supreme Court of Illinois, 1899. 183 111. 104, 55 N. E. 707, 48 L. H. A. 261, 75 Am. St. Rep. 93.) [Appeal from a judgment of the Cook county criminal court holding invalid certain city regulations of department stores. Chi- ^ cago ordinances fr>i-f property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. In- deed, the great office of statutes is to remedy defects in the com- mon law as they are developed, and to adapt it to the changes of time and circumstances. To limit the rate of charge for services rendered in a public employment, or for the use of property in which the public has an interest, is only changing a regulation which existed betor^ .. It establishes no new principle in the law, but only gives a new effect to an old one. We know that this is a power which may be abused; but that is no argument against its existence. For p rote ction against abuses by legislatures the p eople mus t resort to the polls, not to ' the courts. * * * Judgment affirmed. [FiBLD, J., gave a dissenting opinion, in which Strong, -J., con- curred.] SAN DIEGO LAND & TOWN CO. v. NATIONAL CITY (1899) 174 U. S. 739, 754-758, 19 Sup. Ct. 804, 43 L. Ed. 1154, Mr. Justice HarIvAN ( upholdin fy ^ mnniripal sr hpHiilp nf water rates) : " What elements are involved '" ^^^ prpnpri^l inquiry as to the reasonableness of rates established bv law for the use of property W the public? This questioji received much consideration in Smyth V. Ames [169 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819]. That case, it is true, related to rates established by a statute of Nebraska for railroad companies doing business in that state. But the principles involved in such a case are applicable to the present case. It was there contended that a railroad company was entitled to exact such charges for transportation as would enable it at all times, not only to pay operating expenses, but to meet the interest regularly accruing upon all its outstanding obligations, and justify SCOPE AND LIMITS OP POWER 243 a dividend upon all its stock; and that to prohibit it from main- taining rates or charges for transportation adequate to all those ends would be a deprivation of property without due process of law, and a denial of the equal protection of the laws. After ob- serving that this broad proposition involved a misconception of the relations between the public and a railroad corporation, that such a corporation was created for public purposes, and performed a function of the state, and that its right to exercise the power of eminent domain, and to charge tolls, was given primarily for the benefit of the public, this court said : 'It cannot, therefore, be ad- mitted that a railroad corporation maintaining a highway under the authority of the state may fix its rates with a view solely to its own interests, and ignore the rights of the public. But the rights of the public would be ignored if rates for the transporta- tion of persons or property on a railroad are exacted without ref- erence to the fair value of the property used for the public, or the fair value of the services rendered, but in order simply that the corporation may meet operating expenses, pay the interest on its obligations, and declare a dividend to stockholders. If a rail- road corporation has bonded its property for an amount that ex- ceeds its fair value, or if its capitalization is largifely fictitious, it may not impose upon the public the burden of such increased rates as may be required for the purpose of realizing profits upon such excessive valuation or fictitious capitalization; and the apparent value of the property and franchises used by the corporation, as represented by its stocks, bonds, and obligations, is not alone to be considered when determining the rates that may be reasonably charged.' 169 U. S. 544, 18 Sup. Ct. 433, 42 L. Ed. 819. In the same case it was also said that 'the basis of all calculation as to the reasonableness of rates to be charged by a corporation maintain- ing a highway under legislative sanction must be the fair value of the property used by it for the convenience of the public. And, in order to ascertain that value, the original cost of construction, the amount expended in permanent improvements, the amount and market value of its bonds and stock, the present as compared with the original cost of construction, the probable earning capacity of the property under particular rates prescribed by statute, and the sum required to meet operating expenses, are all matters for con- sideration, and are to be given such weight as may be just and right in each case. We do not say that there may not be other matters to be regarded in estimating the value of the property. What the company is entitled to ask is a fair return upon the value of that which it employs for the public convenience. On the other hand, what the public is entitled to demand is that no more be ex- acted from it for the use of a public highway than the services rendered by it are reasonably worth.' 169 U. S. 546, 18 Sup. Ct. 434, 42 L. Ed. 819. 244 THE POLICE POWER "This court had previously held in Road Co. v. Sandford, 164 U. S. 578, 596, 598, 17 Sup. Ct. 198, 41 h. Ed. 560, which case involved the reasonableness of rates established by legislative enactment for a turnpike company, that a corporation performing public serv- ices was not entitled, as of right, and without reference to the in- terests of the public, to realize a given per cent, upon its capital stock; that stockholders were not the only persons whose rights or interests were to be considered ; and that the rights of the pub- lic were not to be ignored. The court in that case further said: 'Each case must depend upon its special facts; and when a court, without assuming itself to prescribe rates, is required to determine "whether the rates prescribed by the legislature for a corporation controlling a public highway are, as an entirety, so unjust as to destroy the value of its property for all the purposes for which it was acquired, its duty is to take into consideration the interests both of the public and of the owner of the property, together with all other circumstances that are fairly to be considered in deter- mining whether the legislature has, under the guise of regulating rates, exceeded its constitutional authority, and practically de- prived the owner of property without due process of law. * * * The utmost that any corporation operating a public highway can rightfully demand at the hands of the legislature, when exerting its general powers, is that it receives what, under all the circum- stances, is such compensation for the use of its property as will be just, both to it and to the public' "These principles are recognized in recent decisions of the su- preme court of California. San Diego Water Co. v. City of San Diego (1897) 118 Cal. 556, 50 Pae. 633, 38 L. R. A. 460, 62 Am. St. Rep. 261 ; Redlands L. & C. Domestic Water Co. v. City of Red- lands (1898) 121 Cal. 365, 53 Pac. 843, 844. "The contention of the appellant in the present case is that in ascertaining what are just rates the court should take into con- sideration the cost of its plant; the cost per annum of operating the plant, including interest paid on money borrowed, and rea- sonably necessary to be used in constructing the same ; the annual depreciation of the plant from natural causes resulting from its use ; and a fair profit to the company over and above such charges for its services in supplying the water to consumers, either by way of interest on the money it has expended for the public use, or up- on some other fair and equitable basis. Undoubtedly all these matters ought to be taken.ixito consideration^ and such weight be given them, when rates are being fixed, as, under all the circum- stances, will be just to the company and to the public. The basis of calculation suggested by the appellant is, however, defective in not requiring the real value of the property and the fair value in themselves of the services rendered to be taken into consideration. What the company is entitled to demand, in order that it may have SCOPE AND LIMITS OF POWER 245 just compensation, is a fair return upon the reasonable value of the property at the time it is being used for the public. The property- may have cost more than it ought to have cost, and its outstand- ing bonds for money borrowed and which went into the plant may be in excess of the real value of the property. So that it cannot be said that the amount of such bonds should in every case control the question of rates, although it may be an element in the inquiry as to what is, all the circumstances considered, just, both to the company and to the public." y LOCHNER V. NEW YORK. (Supreme Court of United States, 1905. 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 93T, 3 Ann. Cas. 1133.) [Error to the county court of Oneida county. New York. A New York statute forbade any employe in a bakery or confection- ery establishment to be permitted to work over 60 hours in any one week, or an average of over 10 hours a day for the number of days such employes should work. Lochner was convicted in said county court of violating this statute in the city of Utica, and the conviction was affirmed on appeal by the Appellate Division and by the Court of Appeals of the state, which remanded the case to the original court for further proceedings.] Mr. Justice Peckham. * * * The statute necessarily inter- feres with the ri^ht nf contract between the employer and em - ploves. concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the in- dividual protected by the fourteenth amendment of the federal Constitution. Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832. Under that provision no state can deprive any person of life, liberty, or property without due process of law. The_ right to purchase or to sell labor is part of the liberty pro- tected by this amendment, unless there are circumstances which exclude the right. There are, however, certain powers, existing, in the sovereignty of each state in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated, and without, at present, any attempt at a more specific lim- itation, relate to the safety, health, morals, and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the state in the exercise of those powers, and with such conditions the fourteenth amendment was not designed to interfere. Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; Re Kemmler, 136 U. S. 436, 10 Sup. Ct. 930, 34 L. Ed. 519; Crowley v. Christen- 246 THE POLICE POWER sen, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. Ed. 620; Re Converse, 137 U. S. 624, 11 Sup. Ct. 191, 34 L. Ed. 796. The state, therefore, has power to prevent the individual from making certain kinds of contracts, and in regard to them the feder- al Constitution offers no protection. If the contract be one which the state, in the legitimate exercise of its police power, has the right to prohibit, it is not prevented from prohibiting it by the fourteenth amendment. Contracts in violation of a statute, either of the federal or state government, or a contract to let one's prop- erty for immoral purposes, or to do any other unlawful act, could obtain no protection from the federal Constitution, as coming un- der the liberty of person or of free contract. Therefore, when the state, by its legislature, in the assumed exercise of its police pow- ers, has passed an act which seriously limits the right to labor or the right of contract m regard to their means of livelihood between persons who are sui juris (both employer and employe"), it be- comes of great importance to determine which shall prevail. — the right of the individual to labor for such time as he may choose, or the right of the state to prevent the individual from laboring, or from entering into any contract to labor, beyond a certain time prescribed by the state. This court has recognized the existence and upheld the exercise of the police powers of the states in many cases which might fairly be considered as border ones, and it has, in the course of its deter- mination of questions regarding the asserted invalidity of such statutes, on the ground of their violation of the rights secured by the federal Constitution, been guided by rules of a very liberal na- ture, the application of which has resulted, in numerous instances, in upholding the validity of state statutes thus assailed. Among the later cases where the state law has been upheld by this court is that of Holden v. Hardy. 169 U. S. 366, 42 L. Ed. 780, 18 Sup. Ct. 383. A provision in the act of the legislature of Utah was there under consideration, the act limiting the employment of workmen in all underground mines or workings, to eight hours per day, '^ex- cept in cases of emergencv. where life or property i.s in imminent danger." It also limited the hours of labor in smelting and other institutions for the reduction or refining of ores or metals to eight hours per day, except in like cases of emergency. The act was held to be a valid exercise of the police powers of the state. A review of many of the cases on the subject, decided by this and other courts, is given in the opinion. It was held that the kind of em- ployment, mining, smelting, etc., and the character of the employes in such kinds of labor, were such as to make it reasonable and, proper for the state to interfere toprevent the employes from be- ing constrained by the rules laid down bv the proprietors in^ e- gard to labor. The following citation from the observations of the supreme court of Utah in that case was made by the judge writing SCOPE AND LIMITS OF POWER 247 the opinion of this court, and approved: "The law in question is confined to the protection of that class of people engaged in labor in underground mines, and in smelters and other works wherein ores are reduced and refined. This law applies only to the classes subjected by their employment to the peculiar conditions and ef- fects attending underground mining and work in smelters, and other works for the reduction and refining of ores. Therefore it is not necessary to discuss or decide whether the legislature can fix the hours of labor in other employments." It will be observed that, even with regard to that class of labor, the Utah statute nrovided fnr cases of emergency wherein the provisions of the statute would not apply. The statute now before this court has no emergency clause in it, and, if the statute is valid, there are no circumstances and no emergencies under which the slightest violation of the provisions of the act would be innocent. There is nothing in Holden v. Hardy which covers the case now before us. Nor does Atkin v. Kansas. 191 U. S. 207. 24 Sup. Ct. 124, 48 L,. Ed. 148, touch the case at bar. The Atkin Case was de- cided upon the right of the state to control its municipal cor- porations, and to prescribe the conditions upon which it will per- mit work of a public character to be done for a municipality. Knoxville Iron Co. v. Harbison, 183 U. S. 13, 22 Sup. Ct. 1, 46 L. Ed. 55, is equally far from an authority for this legislation. The employes in that case were held to be at a disadvantage with the employer in matters of wages, they being miners and coal workers, and the act simply provided for the cashing of coal orders when presented by the miner to the employer. * * * [Jacobson v. Massachusetts, ante, p. 218, and Petit v. Minnesota, 177 U. S. 164, 20 Sup. Ct. 666, 44 I.. Ed. 716, are here stated.] It must, of course, be conceded that there is a limit to the valid exercise of the police power by the state. There is no dispute con- cerning this general proposition. Otherwise the fourteenth amend- ment would have no efficacy and the legislatures of the states would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health, or the safety of the people; such legislation would be valid, no matter how absolutely without foundation the claim might be. The claim of the police power would be a mere pretext, — become another and delusive name for the supreme sovereignty of the state to be exercised free from constitutional restraint. This is not con- tended for. In every case that comes before this court, therefore, where legislation of this character is concerned, and where the protection of the federal Constitution is sought, the question neces- sarily arises: Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unneces- sary, and arbitrary interference with the right of the individual to his personal liberty, or to enter into those contracts in relation to 248 THE POLICE POWER labor which may seem to him appropriate or necesarv for the sup- port of himself and his family? Of course the liberty of contract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor. This is not a question of substituting the judgment of the court for that of the legislature. If the act be within the power of the state it is valid, although the judgment of the court might be total- ly opposed to the enactment of such a law. But the question would still remain : Is it within the police power of the state? and that question must be answered bv the court . The question whether this act is yalid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselyes without the protecting arm of the state, inter- fering with their independence of judgment and of action. They are in no sense wards of the state. Viewed in the light of a purely labor law, with no reference whatever to the question of health, we think that a law like the one before us involves neither the safe- ty, the morals, nor the welfare, of the public, and that the interest of the public is not in the slightest degree affected by such an act. The law must be upheld, if at all, as a law pertaining to the health of the individual engaged in the occupation of a baker. It does not affect any other portion of the public than those who are en- gaged in that occupation. Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week. The limitation of the hours of labor does not come within the police power on that ground. It is a question of which of two powers or rights shall prevail, — 'the power of the state to legislate or the right of the individual to liberty of person and freedom of contract. The mere assertion that the subject relates, though but in a remote degree, to the public health, does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an in- dividual to be free in his person and in his power to contract in re- lation to his own labor. * * * We think the limit of the police power has been reached and passed in this case. There is, in our judgment, no reasonable foun- dation for holding this to be necessary or ap p ropriate as a health law to safeguard the public health, or the health of the individuals who are following the trade of a baker. If this statute be valid, and if, therefore, a proper case is made out in which to deny the SCOPE AND LIMITS OF POWER 249 right of an individual, sui juris, as employer or employe, to make contracts for the labor of the latter under the protection of the provisions of the federal Constitution, there would seem to be no length to which legislation of this nature might not go. The case differs widely, as we have already stated, from the expressions of this court in regard to laws of this nature, as stated in Holden v. Hardy, 16 9 U. S. 366, 18 Sup. Ct. 383, 42 h. Ed. 780, and Jacobson V. Mass£^usetts, 197 U. S. U, 25 Sup. Ct. 358, 49 L. Ed. 643, 3 Ann, Cas. 765. We think that there can be no fair doubt that the trade of a ' baker, in and of itself, is not an unhealthy one to that degree which '^ would authorize the legislature to interfere with the right to labor. ^ and with the right of free contract on the part of the individual, either as employer or employe. In looking through statistics re- garding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some other trades, and is also vastly more healthy than still others. To the common under- standing the trade of a baker has never been regarded as an un- healthy one. Very likely physicians would not recommend the ex- ercise of that or of any other trade as a remedy for ill health. Some occupations are more healthy than others, but we think there are none which might not come under the power of the legislature to supervise and control the hours of working therein, if the mere fact that the occupation is not absolutely and perfectly healthy is to confer that right upon the legislative department of the govern- ment. It might be safely affirmed that almost all occupations more or less affect the health. There must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty. It is unfortunately true that labor, even in any depaVtment, may possibly carry with it the seeds of unhealthiness. But are we all, on that account, at the mercy of legislative majorities? A printer, a tinsmith, a lock- smith, a carpenter, a cabinetmaker, a dry goods clerk, a bank's, a lawyer's, or a physician's 'clerk, or a clerk in almost any kind of business, would all come under the power of the legislature, on this assumption. No trade, no occupation, no mode of earning one's living, could escape this all-pervading power, and the acts of the legislature in limiting the hours of labor in all employments would be valid, although such limitation might seriously cripple the ability of the laborer to support himself and his family. In our large cities there are many buildings into which the sun penetrates for but a short time in each day, and these buildings are occupied by people carrying on the business of bankers, brokers, lawyers, real estate, and many other kinds of business, aided by many clerks, messengers, and other employes. Upon the assump- tion of the validity of this act under review, it is not possible to say that an act, prohibiting lawyers' or bank clerks, or others. 250 THE POLICE POWER from contracting to labor for their employers more than eight hours a day would be invalid. It might be said that it is unhealthy to work more than that number of hours in an apartment lighted by artificial light during the working hours of the day; that the occupation of the bank clerk, the lawyer's clerk, the real-estate clerk, or the broker's clerk, in such offices is therefore unhealthy, and the legislature, in its paternal wisdom, must, therefore, have the right to legislate on the subject of, and to limit, the hours for such labor ; and, if it exercises that power, and its validity be question- ed, it is sufficient to say, it has reference to the public health; it has reference to the health of the employes condemned to labor day after day in buildings where the sun never shines; it is a health law, and therefore it is valid, and cannot be questioned by the courts. It is also urged, pursuing the same line of argument, that it is to the interest of the state that its population should be strong and robust, and therefore any legislation which may be said to tend to make people healthy must be valid as health laws, etiacted under the police power. If this be a valid argument and a justification for this kind of legislation, it follows that the protection of the federal Constitution from undue interference with liberty of person and freedom of contract is visionary, wherever the law is sought to be justified as a valid exercise of the police power. Scarcely any law but might find shelter under such assumptions, and conduct, properly so called, as well as contract; would come under the restric- tive sway of the legislature. Not onlv the hours of emploves. but the hours of emplovers. could be regulated, and doctors, lawvers. scientists, all professional men, as well as athletes and artisans, could be forbidden to fatigue their brains and bodies by prolonged hours of exercise, lest the fighting strength of the state be impaireJT " We mention these extreme cases because the contention is extreme. We do not believe in the soundness of the views which uphold this law. On the contrary, we think that such a law as this, al- though passed in the assumed exercise of the police power, and as relating to the public health, or the health of the employes named, is not within that power, and is invalid. The act is not, within any fair meaning of the term, a health law, but is an illegal interference with the rights of individuals, both emplnvers and emploves. to make contracts regarding labor upon such terms as they may think' best, or which they may agree upon with the other parties to such contracts. Statutes of the nature of that under review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual, and they are not saved from condemnation by the claim that they are passed in the exercise of the police power and upon the subject of the health of the individual whose rights are interfered with, unless there be some fair ground, reasonable in SCOPE AND LIMITS OF POWER 251 and of itself, to say that there is material danger to the public health, or to the health of the employes, if the hours of labor are not curtailed. * * * It was further urged on the argument that restricting the hours of labor in the case of bakers was valid because it tended to cleanliness on the part of the workers, as a man was more apt to be cleanly when not overworked, and if cleanly then his "output" was also more likely to be so. * * * The connection, if any exist, is too shadowy and thin to build any argument for the inter- ference of the legislature. If the man works ten hours a day it is all right, but if ten and a half or eleven his health is in danger and his bread may be unhealthful, and, therefore, he shall not be per- mitted to do it. This, we think, is unreasonable and entirely arbi- trary. * * * j^ seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employes (all being men, sui juris), in a private business, not dangerous in any degree to morals, or in any real and substantial degree to the health of the employes. Under such circumstances the freedom of master and employe to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the federal Con- stitution. * * * Judgment reversed. Mr. Justice Harlan [with whom concurred White and Day, JJ.] dissenting: * * * I find it impossible, in view of common experience, to say that there is here no real or substantial relation between the means employed by the state and the end sought to be accomplished by its legislation. * * * We judicially know that the question of the number of hours during which a workman should continuously labor has been, for a long period, and is yet, a subject of serious consideration among civilized peoples, and by those having special knowledge of the laws of health. Suppose the statute prohibited labor in bakery and confectionery establishments in excess of ei p ^hteen hmirs e.arh day. No one, I take it, could dispute the power of the state to en- act such a statute. But the statute before us does not embrace ex- treme or exceptional cases. It may be said to occupy a middle ground in respect of the hours of labor. What is the true ground for the state to take between legitimate protection, by legislation, of the public health and liberty of contract is not a question easily solved, nor one in respect of which there is or can be absolute cer- tainty. There are very few, if any, questions in political economy about which entire certainty may be predicated. * * * I do not stop to consider whether any particular view of this economic question presents the sounder theory. What the precise facts are it may be difficult to say. It is enough for the determina- tion of this case, and it is enough for this court to know, that the 252 THE POLICE POWER . question is one about which there is room for debate and for an honest difference of opinion. There are many reasons of a weigh - ty, substantial character, based upon the experience of mankinds in support of the theory that, all things considered, more than ten " hours steady work each day, from week to week, in a bakery or confectionery establishment, mav endanger the health and shorten the, lives nf the workmen , thereby diminishing their physical and mental capacity to serye the state and to provide for those depend- ent upon them. If such reasons exist that ou^ht to he the end of this case, for the state is not amenable to the judiciary, in respect of its legisla- tive enactments, unless such enactments are plainly, palpably, be- yond all question, incnnaistent with the Constitution of the United States. * * * Mr. Justice Holmes dissenting : I regret sincerely that I am un- able to agree with the judgment in this case, and that I think it my duty to express my dissent. This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or dis- agreement has nothing to do with the right of a majority to em- body their opinions in law. It is settled by various decisions of this court that state Constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious, or if you like as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the postoffice, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. Tjip fnnrtppnth amenH ment does not enact Mr. Herbert Spencer's Social Statics. The other day we sustained the Massachusetts vac- cination law. Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765. United States and state stat- utes and decisions cutting down the liberty to contract by way of combination are familiar to this court. Northern Securities Co. v. United States, 193 U. S. 197, 24 Sup. Ct. 436, 48 L. Ed. 679. Two years ago we upheld the prohibition of sales of stock on margins, or for 'future delivery, in the Constitution of California. Otis v, Parker, 187 U. S. 606, 23 Sup. Ct. 168, 47 L. Ed. 323. The decision sustaining an eight-hour law for miners is still recent. Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 h. Ed. 780. Some of these SCOPE AND LIMITS OF POWER 253 laws embody convictions or prejudices which judges are likely to share. Some may not. But a Constitution is not intended to em- body a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing yiews, and the acci- dent of our finding certain opinions natural and familiar, or noyel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Con- stitution of the United States. General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any ar- ticulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word "liberty. " in the fourteenth amendment, is perverted when it is held to pre- vent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as thev have been nnderstnoH hv the traditions of our people and our law. It does not need research to show that no such sweeping condemna- tion can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable woiild uphold it as a first instalment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss. McLEAN v. ARKANSAS. (Supreme Court of United States, 1909. 211 U. S. 539, 29 Sup. Ct 206, 53 L. Ed. 315.) [Error to the Supreme Court of Arkansas. A statute criminally forbade the operator of any coal mine employing at least ten men underground, whose miners were paid at quantity rates, from using screens or other devices to reduce the amount of wages that would be due on the basis of the weight of coal actually mined and accepted bv the operator. A state Circuit Court convicted Mc- Lean, an agent of such a coal company, for violating this statute, and the state Supreme Court affirmed this.] Mr. Justice Day. *■ * * That the Constitution of the United States, in the fourteenth amendment thereof, protects the right to make contracts for the sale of labor, and the right to carry on trade or business, against hostile state legislation, has been affirmed in decisions of this court, and we have no disposition to question those cases in which the right has been upheld and maintained against such legislation. Allgeyer v. Louisiana, 165 U. S. 578, 17 254 THE POLICE POWER Sup. Ct. 427, 41 L. Ed. 832; Adair v. United States, 208 U. S. 161, 28 Sup. Ct. 277, 52 L,. Ed. 436, 13 Ann. Cas. 764. But, in many cases in this court, the right of freedom of contract has been held not to be unlimited in its nature, and when the right to contract or carry on business conflicts with laws declaring the public policy of the state, enacted for the protection of the public health, safety, or welfare, the same may be valid, notwithstanding they have the effect to curtail or limit the freedom of contract. * * * In Knoxville Iron Co. v. Harbison, 183 U. S. 13, 22 Sup. Ct. 1, 46 L. Ed. 55, it was hel d that an art nf the lep-jslatiire. of Te nnessee, requirinp;' the rf Hpmptinn in racVi nf st ore nrHers or other evidences of indebtedness issued bv employers in pavment of wages due to emplovp s , dirl nnt rnnflirt with any provisions of the Constitution of tTiP TTnitPf^ St ates, protectinfr the right of contract. In Frisbie V. United States, 157 U. S. 160, 15 Sup. Ct. 586, 39 L. Ed. 657, the act of Congress prohibiting attorneys from contracting for a larger fee than $10 for prosecutmg pension claims was held to be a valid exercise of police power . * * * In Patterson v. The Eudora, 190 U. S. 169, 23 Sup. Ct. 821, 47 L. Ed. 1002, this court held that an act of Congress ^ naking it a misdemeanor for a shipmaster to pay a sailor any part of his wages in advance was valid. * * * The legislature, being familiar with local conditions, is. primari- Iv. the judge of the necessity of such enactments. The mere fact that a court may differ with the legislature in its views of public policy, or that judges may hold views inconsistent with the pro- priety of the legislation in question, affords no ground for judicial interference, unless the act in question is unmistakablv and pal- pably in excess~of legislative power . * ^ * This law does not prevent the operator from screening the coal before it is sent to market ; it does not prevent a contract for mining coal by the day, week, or month; it does not prevent the operator from rejecting coal improperly or negligently mined, and shown to be unduly mingled with dirt or refuse. The objection upon the ground of interference with the right of contract rests upon the inhibition of contracts which prevent the miner employed at quantity rates from contracting for wages upon the basis of screened coal in- stead of the weight of the coal as originally produced in the mine. If there existed a condition of affairs concerning which the legis- lature of the state, exercising its conceded right to enact laws for the protection of the health, safety, or welfare of the people, might pass the law, it must be sustained ; if such action was arbitrary interference with the right to contract or carry on business, and haying no just relation to the protection of the public within the scope of legislative power, the act must fail. * * * [Here are mentioned Ramsey v. People, 142 111. 380, 32 N. E. 364, 17 L. R. A. 853, and In re House Bill No. 203, 21 Colo. 27, 39 Pac. 431, hold- ing such legislation invalid, and 'State v. Peel Splint Coal Co., 36 SCOPE AND LIMITS OF POWER 255 W. Va. 802, 15 S. E. 1000, 17 L. R. A. 385, maintaining it by a divided court.] Conditions which may have led to such legislation were the sub- ject of very full investigation by the industrial commission author- ized by Congress by the act of Tune 18. 1898. * * * A number of the witnesses expressed opinions, based upon their experience in the mining industry, t hat disputes concernin p ^ the introduction and use of screens had led to frequent and sometimes heated con- troversies between the operators and the miners. This condition was testified to have been the result, not only of the introduction of screens as a basis of paying the miners for screened coal only, but, after the screens had been introduced, differences had arisen because of the disarrangement of the parts of the screen, resulting in weakening it, or in increasing the size of the meshes through which the coal passed, thereby preventing a correct measurement of the coal as the basis of paying the miner's wages. We are unable to say, in the light of the conditions shown in the public inquiry referred to, and in the necessity for such laws, evinced in the enactments of the legislatures of various states, that this law had no reasonable relation to the protection of a large class of lab orer s in the receipt of their just dues and in the promotion of the harmonious relations of capital and labor en- gaged in a great industry in the state. Laws tending to prevent fraud and to require honest weights and measures in the transaction of business have frequently been sustained in the courts, although, in compelling certain modes of dealing, they interfere with the freedom of contract. Many cases are collected in Mr. Freund's book on "Police Power" (section 274), wherein that author refers to laws which have been sustain- ed, regulating the size of loaves of bread when sold in the market ; requiring the sale of coal in quantities of 500 pounds or more, by weight; that milk shall be sold in wine measure, and kindred en- actments. Upon this branch of the case it is argued for the validity of this law that its tendency is to require the miner to be honestly paid for the coal actually mined and sold. It is insisted that the miner is deprived of a portion of his just due when paid upon the basis of screened coal, because, while the price may be higher, and theoretically he may. be compensated for all the coal mined in the price paid him for screened coal, that practically, owing to the manner of the operation of the screen itself, and its different op- eration when differently adjusted, or when out of order, the miner is deprived of payment for the coal which he has actually mined. It is not denied that the coal which passes through the screen is sold in the market. It is not for us to say whether these are actual conditions. It is suScient to say that it was a situation brought to the attention of the legislature, concerning which it was entitled 256 THE POLICE POWER to judge and act for itself in the exercise of its lawful power to pass remedial leg^islation. * * * , Judgment affirmed. [Brewer and Peckham, JJ., dissented.] ,, : „.. C^^t^ ^-/^;, ADAIR V. UNITED STATES. (Supreme Court of United States, 1908. 208 V. S. 161, 28 Sup. Ct. 277, 52 L. Ed. 436, 13 Ann. Cas. 764.) [Error to the federal District Court for the Eastern District of Kentucky. An act of Congress (Act June 1, 1898, c. 370) provided for the arbitration of disputes between interstate railroad carriers and their employes, and by section 10 made it a misdemeanor for such carriers or their ag-ents to "threaten any employe with loss of employment." or "iinj"'=^b" [^"1 "^'''''''•iminat e against any employe because of his membership in [anyl labor corporation, association, or org-ani7:atinn." Adair was indicted for violating this section, in that, as agent for an interstate railroad, he discharged one Coppage because of his membership in a labor union . The trial court over- ruled a demurrer to the indictment, and this writ of error was taken.] Mr. Justice Harlan. * * * The first inquiry is whether the part of the tenth section of the act of 1898 upon which the first count of the indictment was based is repugnant to the fifth amend- ment of the Constitution, declaring that no person shall be de- prived of liberty or property without due process of law. In our opinion that section, in the particular mentioned, is an invasion of the personal liber ty, as well as nf the right nt prripprt y. guaranteed" by that amendment. Such liberty and right embrace the right to make contracts for the purchase of the labor of others, and equally the r ight to make contracts for the sale of one's own labor; each right, however, being subject to the fundamental condition that no contract, what ever its subject-matter, can be sustained which the law, upon reasonable g rounds, forbids as inconsistent with the public interests, or as hurtful to the public order, or as detrimental to the common p-ood. * * * It was the right of the defendant to prescribe the terms up on which th e servic es of Coppage would be accepted, and it was the right of Coppage to hem me or not, as he chose, an employe of the railroad company upon the terms offered to him. Mr. Cooley, in his treatise on Torts, p. 278, well says: "It is a part of every man's civil rights that he be left at liberty to refuse business rela- tions with any person whomsoever, whether the refusal rests up- on reason, or is the result of whim, caprice, prejudice, or malice. With his reasons neither the public nor third persons have any SCOPE AND LIMITS OF POWER 257 legal concern. It is also his right to have business relations with anyone with whom he can make contracts, and, if he is wrongfully deprived of this right by others, he is entitled to redress." * * * [Lochner v. New York, ante, p. 245, is here discussed.] While, as already suggested, the right of liberty and property guaranteed by the Constitution against deprivation without due process of law is subject to such reasonabk restraints as the com- mon good or the general welfare may require, it is not within the functions of government — at least, in the absence of contract be- tween the parties — to compel any person^ in the course of his busi- ness and agamst his will, to accept or retain the personal services of another, or to compel any person, against his will, to perform personal services for another. The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the condi- tions upon which he will accept such labor from the! person offer- ing to sell it. So the right of the employe to quit the service of the employer, for whatever reason, is the same as the right of the employer, for whatever reason, to dispense with the services of such employe. It was the legal right of the defendant. Adair. — however unwise such a course mi^ht have been, — to discharge ( Joppage because of his being a member of a labor organization, as it was the legal right of Coppage. if he saw fit to do so. — however unwise such a course nn his part might have been, — to quit the service in which he was eng a ged, because the defendant emploved some persons who were not members of a labor organization. In all such particulars the employer and the employe have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land. These views find support in adjudged cases, some of which are cited in the margin. [Citations omitted.] Of course, if the parties by contract fixed the period of service, and prescribed the condi- tions upon which the contract may be terminated, such contract would control the rights of the parties as between themselves, and for any violation of those provisions the party wronged would have his appropriate civil action. And it may be — ^but upon that point we express no opinion — that, in the case of a labor contract between an employer engaged in interstate commerce and his employe, Congress could make it a crime for either party, without sufficient or just excuse or notice, to disregard the terms of such contract or to refuse to perform it. In the absence, however, of a valid contract between the parties controlling their conduct to- wards each other and tixing a period of service, it cannot be. we repeat, that an employer is under any legal obligation, against his will, to retain an employe m his personal service any more than Hall Cases Const.L. — ^17 258 THE POLICE POWER an employe can be compelled, against his will, to remain in the personal service of another . * * * Judgment reversed. I Mr. Justice McKenna, dissenting. * * * The provisions of the act are explicit and present a well r.n-ordinated plan for the set- tlement of disputes between carriers and their emplnyes, bv bring- ing the disputes to arbitration and accommodation, and thereby prevent strikes and the public disorder and derangement of busi- ness that may be consequent upon them. * * * We are told that labor associations are to be commended. May not, then, Congress recognize their existence? Yes, and recognize their power as conditions to be counted with in framing its legis- lation. Of what use would it be to attempt to bring bodies of men to agreement and compromise of controversies if you put out of view the influences which move them or the fellowship which binds them, — ^maybe controls and impels them, whether rightfully or wrongfully, to make the cause of one the cause of all? And this practical wisdom Congress observed, — observed, I may say, not in speculation or uncertain prevision of evils, but in experience of evils, — an experience which approached to the dimensions of a national calamity. Tj ;]e farts of history should not be overlooked nor the course of legislation. The act involved in the present case was preceded by one enacted in 1888 of similar purport. 25 Stat, at Large, 501, c. 1063. That act did not recognize labor associa- tions, or distinguish between the members of such associations and the other employes of carriers. It failed in its purpose, whether from defect in its provisions or other cause we may only conjec- ture. At any rate, it did not avert the strike at Chicago in 1894. Investigation followed, and, as a result of it, the act of 1898 was finally passed. Presumably its provisions and remedy were ad- dressed to the mischief which the act of 1888 failed to reach or avert. It was the judgment of Congress that the scheme of arbitration mis^ht be helped by engaging in it the labor associations. Those associations unified bodies of employes in every department of the carriers, and this unity could be an obstacle or an aid to arbitra- tion. It was attempted to be made an aid; but how could it be made an aid if, pending the efforts of "mediation and conciliation" of the dispute, as provided in section 2 of the act, other provisions of the act may be arbitrarily disregarded, which are of concern to the members in the dispute? How can it be an aid, how can con- troversies which may seriously interrupt or threaten to interrupt the business of carriers (I paraphrase the words of" the statute) be averted or composed if the carrier can bring on the conflict or pre- vent its amicable settlement by the exercise of mere whim and. Jrice? I say mere whim or caprice, for this is the liberty which SCOPE AND LIMITS OF POWBIl 259 is attempted to be vindicated as the constitutional right of the car- riers. And it may be exercised in mere whim and caprice. If ability, the qualities of efficient and faithful workmanship, can be found outside of labor associations, surely they may be found in- side of them. Liberty is an attractive theme, but the liberty which is exercised in sheer antipathy does not plead stronglv for recogni- tion. * * * It also seems to me to be an oversight of the proportions of things to contend that, in order to encourage a policy of arbitra- tion between carriers and their employes which may prevent a dis- ^ astrous interruption of commerce, the derangement of business, and even greater evils to the public welfare. C)pngress cannot re- strain the discharge of an employe, and vet can, to enforce a. pnlicv of unrestrained competition between railroads, prohibit reasonable agreements between them as to the rates at which merchandise shall be carried. And mark the contrast of what is prohibited. In the one case the restraint, it may be, of a whim, — certainly of noth- ing that affects the ability of an employe to perform his duties; nothing, therefore, which is of any material interest to the car- rier, — in the other case, a restraint of a carefully-considered policy which had as its motive great material interests and benefits to the railroads, and, in the opinion of many, to the public. May such action be restricted, must it give way to the public welfare, while the other, moved, it may be, by prejudice and antagonism, is intrenched impregnably in the fifth amendment of the Constitu- tion against regulation in the public interest? I would not be misunderstood. I grant that there are rights which can have no material measure. There are rights which, when exercised in a private business, may not be disturbed or lim- ited. With them we are not concerned. We are dealing with rights exercised in a quasi public business, and therefore subject to control in the interest of the public. Mr. Justice Holmes, dissenting. * * * The ground on which this particular law is held bad is not so much that it dedls with matters remote from commerce among the states, as that it inter- feres with the paramount individual rights secured by the fifth amendment. The section is, in substance, a very limited inter- ference with freedom of contract, no more. It does not require the carriers to employ anyone. It does not forbid, them to refuse . to emjploy anyone, for any reason they deem good, even where the notion nf a choice of persons is. a fiction and wholesale employ- ment is necessary upon general prmciples that it might be proper to control. The section simply prohibits the more powerful party , to exact certain undertakings, or to threaten dismissal or unjustly discriminate on certain grounds against those already employed. I hardly can suppose that the grounds on which a contract law- 260 THE POLICE POWER fully may be made to end are less open to regulation than other terms. So I turn to the general question whether the employment can be regulated at all. I confess that I think that the right to make contracts at will that has been derived from the word "liberty" in the amendments has been stretched to its extreme by the decisions ; but they agree that sometimes the right may be restrai'ned. Where there is. or generally is believed to be, an important grnnnH nf piihlic policy for restraint, the Constitution does not forbid it. whether this court agrees or disagrees with the policy pursued. It cannot be doubted that to prevent strikes, and, so far as possible, to foster its scheme of arbitration, might be deemed by Congress an im- portant point of policy, and I think it impossible to say that Con- gress might not reasonably think that the provision in question would help a good deal to carry its policy along. But suppose the only effect really were to tend to bring about "the complete union- izing of such railroad laborers as Congress can deal with, I think that object alone would justify the act. I quite agree that the question what and how much good labor unions do, is one on which intelligent people may differ; I think that laboring men sometimes attribute to them advantages, as many attribute to combinations of capital disadvantages, that really are due to eco- nomic conditions of a far wider and deeper kind; but I could not pronounce it unwarranted if Congress should decide that tn foster a strong union was for the best interest, not only of the men, but of the railroads and the country at large. [Moody, J., did not sit.| ~~ NOBLE STATE BANK v. HASKELi;. (Supreme Court of United States, 1911. 219 U. S. 104, 31 Sup. Ct. 186, 55 L. Ed. 112, 32 L. R. A. [N. S.] 1062, Ann. Cas. 1912A, 487.) [Error to the Supreme Court of Oklahoma. A state statute created a banking board directed to lew an assessnlent upon every state bank's average daily deposits in order to create a depositors' guaranty fund. When the cash of any insolvent bank in liquidation should b ^ ingiiffirreni- tn pay all depositors, the deficit was to be made up from this guaranty fund and from further assessments, if necessary, reserving a lien upon the asset s of the failing bank to secure money thus taken from the tund. . Jr'laintiit bank soupht to enjoin the banking board from collecting such assessments from it, and its petition was dismissed in the state courts.] Mr. Justice Holmes. * * * We must be cautious about pressing ^hf? hrnaH wnrds of the fourteenth amendment to a drilYf logical extreme. Many laws which it would be vain to ask the court to overthrow could be shown, easily enough, to transgress SCOPE AND LIMITS OP POWER 261 a scholastic interpretation of one or another of the great guaranties in the Bill of Rights. They more or less limit the liberty of the individual, or they diminish property to a certain extent. We have few scientifically certain criteria of legislation, and as it often is difficult to mark the line where what is called the police power of the states is limited by the Constitution of the United States, judges should be slow to read into the latter a nolumus mutare as against the lawmaking power. The substance oi tlie plaintiff's argument is that the assessment takes private property for private use without compensation. And while we should assume that the plaintifiE would retain a rever- sionary interest in its contribution to the fund, so as to be entitled to a return of what remained of it if the purpose were given up (see Danby Bank v. State Treasui-er, 39 Vt. 92, 98), still there is no denying that by this law a portion of its property might be taken without return to pay debts of a tailing- rival in business. Never- theless, notwithstanding the logical form of the objection, there are more powerful considerations on the other side. In the first place, it is established by a series of cases that an ulterior public advantage may justify a comparatively insignficant taking of pri- vate propertv for what, in its immediate purpose, is a private use. Clark V. Nash, 198 U. S. 361, 25 Sup. Ct. 676, 49 L. Ed. 1085, 4 Ann. Cas. 1171; Strickley v. Highland Boy Gold Min. Co., 200 U. S. 527, 531, 26 Sup. Ct. 301, SO L. Ed. 581, 583, 4 Ann. Cas. 1174; Of- field V. New York, N. H. & H. R. Co., 203 U. S. 372, 27 Sup. Ct. 72, 51 L. Ed. 231; Bacon v. Walker, 204 U. S. 311, 315, 27 Sup. Ct. 289, 51 L Ed. 499, 501. And in the next, it would seem that there may be other cases beside the everyday one of taxation, in which the share of each party in the benefit of a scheme of mutual pro- tection is sufficient compensation for the correlative burden that it is compelled to assume. See Ohio Oil Co. v. Indiana, 177 U. S. 190, 20 Sup. Ct. 576, 44 L. Ed. 729 ; Deserant v. Cerillos Coal R. Co.; 178 U. S. 409, 20 Sup. Ct. 967, 44 L. Ed. 1127, 20 Mor. Min. Rep. 576. At least, if we have a case within the reasonable exercise of the police power as above explained, no more need be said. It may be said in a general way that the police power extends to all the great public needs. Camfield v. United States, 167 U. S. 518, 17 Sup. Ct. 864, 42 L. Ed. 260. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality, or strong and preponderant opinion to be greatly and irnmediatelv necessary to the public welfare. Among matters of that sort prob- ably few would do ubt that both usage an d preponderant opinion give their sanction to eniorcing the primary conditions of success?- ful commerce. One of those conditions at the present time is the possibility of payment by checks drawn against bank deposits, to such an extent do checks replace currency in daily business. If, then, the legislature of the state thinks that the public welfare re- 262 IHB POLICE POWER quires the measure under consideration, analogy and principle are in favor of the power to enact it._ Even "the primary object of the required assessment is not a private benefit, as it was in the cases above cited of a ditch for irrigation or a railway to a mine, but it is to make the currency of checks secure, and by the same stroke to make safe the almost compulsory resort of depositors to banks as the only available means for keeping money on hand. The priority of claim given to depositors is incidental to the same ob- ject, and is justified in the same way. The power to restrict liber- ty by fixing a minimum of capital required of those who would engage in banking is not denied. The power to restrict invest- ments to securities regarded as relatively safe seems equally plain. It has been held, we do not doubt rightly, that inspections may be required and the cost thrown on the bank. See Charlotte, C. & A. R. Co. V. Gibbes, 142 U. S. 386, 12 Sup. Ct. 255, 35 L. Ed. 1051. The power to compel, beforehand, co-operation, and thus, it is believed, to make a failure unlikely and a general panic almost impossible, must be recognized, if government is to do its proper work, unless we can say that the means have no reasonable rela^ tion to the end, Oundlinp- v. Chicap-o. 177 TT. S. 183. IRR. 20 Sup". Ct. 633, 44 L. Ed. 725. So far is that from being the case that the 1 device is a familiar one. It was adopted by some states the better ypart of a century ago, and seems never to have been questioned until now. Danby Bank v. State Treasurer, 39 Vt. 92; People v. Walker, 17 N. Y. 502. Recent cases going not less far are Lemieux v. Young, 211 U. S. 489, 496, 29 Sup. Ct. 174, 53 L. Ed. 295, 300; Kidd, D. & P. Co. v. Musselman Grocer Co., 217 U. S. 461, 30 Sup. Ct. 606, 54 L. Ed. 839. It is asked whether the state could require all corporations or all grocers to help to guarantee each other's solvency, and where we are going to draw the line. But the last is a futile question, and ; we will answer the others when they arise. With regard to the police power, as elsewhere in the law, lines are pricked out by the gradual approach and contact of decisions on the opposing sides. , Hudson County Water Co. v. McCarter, 209 U. S. 349, 355, 28 Sup. .Ct. 529, 52 L. Ed. 828, 831, 14 Ann. Cas. 560. It will serve as a datum on this side, that, in our opinion, the statute before us is well withm the state's constitutional power, while the use of the public credit on a large scale to help individuals in business has been held to be beyond the line. Citizens' L. Asso. v. Topeka, 20 Wall. 655, 22 L. Ed. 455 ; Lowell v. Boston, 111 Mass. 454, IS Am. Rep. 39. The question that we have decided is not much helped by pro- pounding the further one, whether the right to engage in banking is or can be made a franchise. But as the latter question has some bearing on the former, and as it will have to be considered in the following cases, if not here, we will dispose of it now. It i,s not SCOPE AND LIMITS OF POWER 263 answered by citing authorities for the existence of the right at common law. There are many things that a man might do at com- mon law that the states may forbid. He might embezzle until a statute cut down his liberty. We cannot say that the public in- terests to which we have adverted, and others, are not sufficient to warrant the state in taking the whole business of banking un- der its control. On the contrary, we are of opinion that it may go on from regulation to prohibition except upon such conditions as it 'may prescribe. In short, when the Oklahoma legislature declares by iinplication that free bankinfj- is a public danger, and that incor- poration, mspection, and the above-described co-operation are nec- essary safeguards, this court certainly cannot say that it is wrong [citing cases]. Decree affirmed. HEAD V. AMOSKEAG MFG. CO. (Supreme Court of United States, 1885. 113 U. S. 9, 5 Sup. Ct. 441, 28 L. Ed. 889.) [Error to the Supreme Court of New Hampshire. A general statute authorized the erection of mills and dams upon nonnaviga- ble streams upon payment ot damages to the owners of lands flow- ed by the dams. The Amoskeag Company filed a petition for the ascertainment of the damages suffered by Head from flowage from their dam, and Head alleged the invalidity of the statute under the fourteenth amendment. His objections were overruled and judg- ment was entered entitling the company to flow his land on pay- ment of the amount of damage found.] Mr. Justice Gray. * * * [After referring to numerous mill acts in 29 states:] In most of those states, their validity has been assumed, without dispute ; and they were never adjudged to be in- valid anywhere until since 1870, and then in 3 states only, and for incompatibility with their respective Constitutions. Loughbridge v. Harris (1871) 42 Ga. 500; Tyler v. Beacher (1871) 44 Vt. 648, 8 Am. Rep. 398; Ryerson v. Brown (1877) 35 Mich. 333, 24 Am. Rep. 564. The earlier cases in Tennessee, Alabama and New York, containing dicta to the same effect, were decided upon other grounds. Harding v. Goodlett, 3 Yerg. (Tenn.) 41, 24 Am. Dec. 546; Memphis Railroad v. Memphis, 4 Cold. (Tenn.) 406; Moore v. Wright, 34 Ala. 311, 333; Bottoms v. Brewer, 54 Ala. 288; Hay V. Cohoes Co., 3 Barb. (N. Y.) 42, 47, and 2 N. Y. 159, 51 Am. Dec. 279. * * * The question whether the erection and maintenance of mills for manufacturing purposes under a general mill act, of which any owner of land upon a stream not navigable may avail himself at will, can be upheld as a taking, by delegation of the right of emi- 264 THE POLICE POWER nent domain, of private property for public use, in the constitu- tional sense, is so important and far reaching, that it does not be- come this court to express an opinion upon it. when not required for the determination of the rights of the parties before it - We prefer to rest the decision of this case upon the ground that such a statute, considered as regulating the manner in which the rights of proprietors of lands adjacent to a stream may be asserted and enjoyed, with a due regard to the interests of all, and to the pub- lic good, is within the constitutional power of the legislature. When property, in which several persons have a common inter- est, cannot be fully and beneficially enjoyed in its existing condi- tion, the law often provides a way in which they may compel one another to submit to measures necessary to secure its beneficial enjoyment, making equitable compensation to any whose control of or interest in the property is thereby modified. In the familiar case of land held by several tenants in common, or even by joint tenants with right, of survivorship, any ope^of them may compel a partition, upon which the court,,,^-'the land cannot be equally divided, will order owelty to Jje-iTaid. or in many states, under statutes the constitutionaHty^fwhich has never been denied, will, if the estate is such that it cannot be divided, either set it off to one and order him to compensate the others in money, or else order the whole estate to be sold. King v. Reed, 11 Gray (Mass.) 490; Bentley v. Long Dock Co., 14 N. J. Eq. 480; s. c. on appeal, nom. Manners v. Bentley, 15 N. J. Eq. SOI; Mead v. Mit- chell, 17 N. Y. 210, 72 Am. Dec. 455 ; Richardson v. Monson, 23 Conn. 94. Water rights held in common, incapable of partition at law, may be the subject of partition in equity, either by apportion- ing the time and extent of use, or by a sale of the right and a divi- sion of the proceeds. Smith v. Smith, 10 Paige (N. Y.) 470; De Witt V. Harvey, 4 Gray (Mass.) 486; McGillivray v. Evans, 27 Cal. 92. At the common law, as Lord Coke tells us: "If two tenants in common, or joint tenants, be of an house or mill, and it fall in de- cay, and the one is willing to repair the same, and the other will not, he that is willing shall have a writ de reparatione facienda; and the writ saith, ad reparationem et sustentationem ejusdem domus teneantur ; whereby it appeareth that owners are in that case bound pro bono publico to maintain houses and mills which are for habitation and use of men." Co. Lit. 200b ; 4 Kent Com. 370. In the same spirit, the statutes of Massachusetts, for a hundred and seventy-five years, have provided that any tenant in common of a mill in need of repair may notify a general meeting of all the owners for consultation, and that, if any one refuses to attend, or to agree with the majority, or to pay his share, the majority may cause the repairs to be made, and recover his share of the expenses out of the mill or its profits or earnings. Mass. Prov. Stat." 1709, SCOPE AND LIMITS OF POWER 265 ch. 3, 1 Prov. Laws (State ed.) 641, and Anc. Chart. 388; Stat. 1795, ch. 74, §§ 5-7; Rev. Stat. 1836, ch. 116, §§ 44-58; Gen. Stat. 1860, ch. 149, §§ 53-64; Pub. Stat. 1882, ch. 190, §§ 59-70. And the stat- utes of New Hampshire, for more than eighty years, have made provision for compelling the repair of mills in such cases. Roberts V. Peavey, 7 Foster (27 N. H.) 477, 493. The statutes which h ave long existed in many states authorizing the majority ot the owners m severalty of adjacent meadow or swamp lands to have commissioners appointed to drain and imr prove the whole tract, by cutting ditches or otherwise, and to as- sess and lew the amount of the expense upon all the proprietors in proportion to the benefits received, have been often upheld, in- dependently of any effect upon the public health, as reasonable reg- ulations for the general advantage of those who are treated for this purpose as owners of a common property. Coomes v. Burt, 22 Pick. (Mass.) 422; Wright v. Boston, 9 Cush. (Mass.) 233, 241; Sherman v. Tobey, 3 Allen (Mass.) 7; Lowell v. Boston, 111 Mass. 454, 469, 15 Am. Rep. 39; French v. Kirkland, 1 Paige (N. Y.) 117; People v. Brooklyn, 4 N. Y. 419, 438, 55 Am. Dec. 266; Coster v. Tide Water Co., 18 N. J. Eq. 54, 68, 518, 531; O'Reiley V. Kankakee Valley Drainage Co., 32 Ind. 169. By the maritime law, based, as Lord Tenterden observed, on the consideration that the actual employment of ships is "a mat- ter, not merely of private advantage to the owners, but of public benefit to the state," and recognized in the decisions, and the rules of this court, courts of admiralty, when the part-owners of a ship cannot agree upon her employment, authorize the majority to send her to sea, on giving security to the dissenting minority, to bring back and restore the ship, or, if she be lost, to pay them the value of their shares; and in such case the minority can neither recover part of the profits of the voyage nor compensation for the use of the ship. Abbott on Shipping, pt. 1, ch. 3, §§ 2, 3; The Steamboat Orleans, 11 Pet. 175, 183, 9 L. Ed. 677; Rule 20 in Ad- miralty, 3 How. vii. ; The Marengo, 1 Low. 52, Fed. Cas. No. 9,065. If the part-owners are equally divided in opinion upon the man- ner of employing the ship, then, according to the general maritime law, recognized and applied by Mr. Justice Washington, the ship may be ordered to be sold and the proceeds distributed among them. The Seneca, 18 Am. Jur. 485; s. c. 3 Wall. Jr. 395, Fed, Cas. No. 12,670. See, also, Story on Partnership, § 439 ; The Nelly Schneider, 3 P. D. 152. But no ne of the cases, thus put by way of illustration, so stronglv call for the interposition of the law as the case before us^ The right to the use of running water is publici juris, and common to all the proprietors of the bed and banks of the stream from its source to its outlet. Each has a right to the reasonable use of the water as it flows past his land, not interfering with a like reason- 266 THE POLICE POWER able use by those above or below him. One reasonable use of the water is the use of the power, inherent in the fall of the stream and the force of the current, to drive mills. That power cannot be used without damming up the water, and thereby causing it to flow back. If the water thus dammed up by one riparian proprietor spread over the lands of others, they could at common law bring successive actions against him for the injury so done them, or even have the dam abated. Before the mill acts, therefore, it was often impossible for a riparian proprietor to use the water power at all, without the consent pf those above him. The purpose of these statutes is to enable an y riparian propr ietor to erect a mill and use the water power ot the stream, provided he does not interfere wit^ an earlier exercise bv another of a like right or with anv rieht of the public ; and to substitute, for the common-law remedies of re- peated actions tor damages and prostration of the dam, a new form of remedy, by which anv one whose land is flowed can have assess- ed, once for all, either in a gross sum or by way of annual damages^ adequate compensation for the injury. This view of the principle upon which general mill acts rest has been fully and clearly expounded in the judgments delivered by Chief Justice Shaw in the Supreme Judicial Court of Massachu- setts. In delivering the opinion of the court in a case decided in 1832, he said: "The statute of 1796 is but a revision of a former law, and the origin of these regulations is to be found in the pro- vincial statute of 1714. They are somewhat at variance with that absolute right of dominion and enjoyment which every proprietor is supposed by law to have in his own soil; and in ascertaining their extent it will be useful to inquire into the principle upon which they are founded. We think they will be found to rest for their justification, partly up nn the interest w hich the community at large has in the use and employment of mills, and partly upon the na- ture of the property, which is often sn situated that it r.nuld not be beneficiallv used without the aid of this power. A stream of wa- ter often runs through the lands of several proprietors. One may have a sufficient mill-site on his own land, with' ample space on his own land for a mill-pond or reservoir, but yet, from the opera- tion of the well-known physical law that fluids will seek and find a level, he cannot use his own property without flowing the water back more or less on the lands of some other proprietor. We 'think the power given by statute was intended to apply to' such cases, and that the legislature meant to provide that, as the public inter- est in such case coincides with that of the mill-owner, and as the mill- o wner and the owner of lands to be flowed cannot both enjoy their tull rights, without some mterference, the latter shall yield to the tormer, so far that the former may keep up his mill and head of water, notwithstanding the damage done to the latter, upon payment of an equitable compensation for the real damage Sus- SCOPE AND LIMITS OF POWBB 267 tained, to be ascertained in the mode provided by the statute." "From this view ot the object and purpose of the statute, we think it quite manifest that it was designed to provide for the most use- ful and beneficial occupation and enjoyment of natural streams and watercourses, where the absolute right of each proprietor to use his own land and water privileges, at his own pleasure, cannot be fully enjoyed, and one must of necessity, in some degree, yield to the other." Fiske v. Framingham Manufacturing Co., 12 Pick. (Mass.) 68, 70-72. * * * Upon principle and authority, therefore, independently of any weight due to the opinions of the courts of New Hampshire and other states, maintaining the validity of general mill acts as taking private property for public use, in the strict constitutional meaning of that phrase, the statute under which the Amoskeag Manufactur- ing Company has flowed the land in question is clearly valid as a just and reasonable exercise of the power o f the legislature, hav- ing regard to the public good, in a more ge neral sense , as well as to the rights of the riparian proprietors, to regulate the use of the water power of running streams, which without s ome such regula: tion could not be beneficially used. The statute does not authorize new mills to be erected to the detriment of existing mills and mill privileges. And by providing for an assessment of full compensa- tion to the owners of lands flowed, it avoids the difficulty which arose in the case of Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L. Ed. 557. * * * Judgment affirmed. COMMONWEALTH v. STRAUSS. (Supreme Judicial Court of Massachusetts, 1906. 191 Mass. 545, 78 N. B. 136, 11 L. R. A. [N. S.] 968, 6 Ann. Cas. 842.) [Exceptions to indictment. A Massachusetts statute criminally forbade any person doing business in the state to make it a condi- tion of the sale of goods that the purchaser should not deal in the goods of anv other person: with certain exceptions regarding ex- clusive agents and selling territory . Strauss, agent for the Con- tinental Tobacco Company, sold plug tobacco on condition that ii the purchaser dealt in the goods of no other tobacco manufacr turer a rebate of six per cent, would be returned. The prices ask- ed for tobacco made the receipt of this rebate practically necessary m order to secure a profit to the retailer . Defendant, being con- victed under this statute, alleged exceptions.] KnowIvTon, C. J. * * * The rights relied upon under the fourteenth amendment to the Constitution of the United States, and under the Declaration of Rights in the Constitution of Massa- chusetts, are substantially the same, namely the right of every per- 268 THE POLICE POWER son to his life, liberty and property, including freedom to use his faculties in all lawful ways, "to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned." See Allgeyer V. Louisiana, 165 U. S. 578, 589, 17 Sup. Ct. 427, 431 (41 L. Ed. 832). * * * There is no doubt that the statute before us puts a limitation upon the general right to make contracts.. The contention of the commonwealth is that this limitation is valid as an exercise of the police power^ The nature of the police power and its extent, as applied to conceivable cases, cannot easily be stated with exact- ness. It includes the right to legislate in the interest of the public health, the public safety and the public morals. If the power is to be held within the limits of the field thus defined, the words should be interpreted broadly and liberally. If we are to include in the definition, as many judges have done, the right to legislate for the public welfare, this term should be defined with some strict- ness, so as not to include everything that might be enacted on grounds of mere expediency. In the every late case of Lochner v. . New York, 198 U. S. 45, 53, 25 Sup. Ct. 539, 541, 49 L. Ed. 937, 'J Ann. Cas. 1133, the majority of the court said, "Those powers,, broadly stated, and without at present any attempt at a more specif- ic limitation, relate to the safety, health, morals and general wel- fare of the public." In the opinion in Louisville & Nashville Rail- road V. Kentucky, 161 U. S. 677, 701, 16 Sup. Ct. 714, 723 (40 L. Ed. 849) we find this language: "The general rule holds good, that whatever is contrary to public policy or inimical to the public in- terests is subject to the police power of the state, and within legis- lative control, and in the exertion of such power the Legislature is vested with a large discretion, which if exercised for the protection of the public, is beyond the reach of judicial inquiry." It becomes necessary to look somewhat critically at the statute before us, to discover its effect upon the rights of contracting par- ties, and the purpose of the Legislature in enacting it. In the sale of goods to be resold it forbids one kind of contract which might be made in competition with other sellers of similar goods. It leaves open every other kind of contract. We mav infer that the Legisla- ture was providing for cases in which this particular kind of con- - tract would be unfair competition as against weaker dealers, and . would be injurious to the public as tending to crush ordinary com- ^ petitors, and thus create a monopoly, from which the community a& ■^ consumers would ultimatelv suffer. . If, at the time of the enact- ment of this statute, there were dangers of this kind confronting the people ot the commonwealth, and if this prohibition is a rea- sonable way ot avertmg such dangers, we rind justification for the SCOPE AND LIMITS OF POWER 269 legislation, unless it involves a serious injury to those who are re- strained by it. It permits every kind of contract of sale but one. It does not prohibit the appointment of agents, or sole agents, for the sale of property. It allows contracts for the exclusive sale of goods, wares or merchandise. The contracts that it forbids are only those which, in ordinary competition among equals, .no one ,- would have any interest or desire to make . As a rule, it is only a person or corporation that is intrenched in a position of power that can afford to say to a retailer or jobber, "I will not let you have my \ goods unless you will agree to sell none furnished by others."' One who controls the sources of supply of goods, which are in such ^ demand that a dealer cannot afford to be without them, can safely i say to a purchaser "You must give me all your trade if you want to sell any of my goods." In that way he may be able to obtain a complete monopoly of the trade in goods such as "he supplies. The evidence in this case illustrates some of the tendencies of the times. The defendant's employer, the Continental Tobacco Com- pany, is incorporated with a capital stock of $75,000,000. At the time of the sales for which the defendant is indicted it had ab- sorbed more than 12 establishments used for the manufacture and sale of plug tobaccos, and owned by as many proprietors. Before its incorporation there was free and open competition in the plug tobacco market in Massachusetts. It so consolidated and restrict- ed the trade that, in January, 1904, it produced about 95 per cent, of the plug tobacco, and about 80 per cent, of the cut plug tobacco ' in Massachusetts. Conditions were about the same in all parts of ' the state. There were about 210 jobbers in Massachusetts, and , practically all stopped buying of independent manufacturers when this corporation made this new proposition, presented by the de- fendant in making the sales complained of. It had acquired such strength in its own field that, by the use of such means as the statute forbade, it could expect easily to obtain a practical monop- oly of the plug tobacco trade in Massachusetts. This evidence furnishes an illustration of what we fairly may assume was being done, or might be expected to be done, in the manufacture and sale of other products, even of some of the necessaries of life. Tobacco is not one of the necessaries of life, but its use is so common that to many persons it seems. almost as necessary as food. The poor much more than the rich would be likely to be afifected by the monopoly of the market for plug tobacco, and a rise in the price which might be expected to follow it. This statute was not enacted for protection in the purchase of any one kind of property. Its object doubtless was to prevent the use of this particular method of crushing competitors in any kind of trade in which the public might be interested. Especially was it important to prevent monopoly in the sale of the necessaries of 270 . THE POLICE POWER life. In view of this, we deem it not unreasonable that the statute was made to apply to sales of all kinds of goods. Legislation should be adapted to existing conditions. A few Years ago there was no occasion for such an enactment. But late- ly we see great aggregations of capital formed to obtain command, if possible, of the field of production or distribution into which they enter. Even now, in the transaction of business among equals where there is free competition, the statute is unnecessary, for there is no inducement to do that which it forbids. Its practical effect is to prevent great corporations from making a certain kind of contracts intended to drive ordinary competitors out of busi- ness. The question is whether, at the time of the passage of this stat- ute, there were conditions actually existing or reasonably anticipat- ed which called for such legislative intervention in the interest of the general public. We are of opinion that there were, and that, in a broad and liberal sense of the words, this statute was enacted in the interest of the public health ajid the public safety, if not of the public morals . Certainly the purpose of the Legislature was to, promote the general welfare of the public. We cannot say that this legislative action was not a legitimate exercise of the police power. Its invasion of the g;eneral right to make contracts is sO' slight, and in a field so remote from ordinarv mercantile transac- tions, that there is little ground of objection on that score. The abuse at which the statute is aimed, while not practiced by many persons, is real and widely pervasive. * * * Exceptions overruled. YICK WO v. HOPKINS. (Supreme Court of United States, 1886. 118 TJ. S. 356, 6 Sup. Ct. 1064, 30 L- Ed. 220.) [Error to the Supreme Court of California. An ordinance of San Francisco forbade anv person to carry on a laundry within the city without the consent of the board of supervisors, except in. buildings of brick or stone. Yick Wo, a native of China, who had conducted a laundry in a certain wooden building in that city for 22 years, and who had there complied with all existing regulations for f^p r'"'"'"'"tli7r i of fire and the protection of health, was refused such consent by said board, upon his application ; and he was later co'nvicteH and im prisoned by order of the local poHce court for con- ducting his laundry without such consent. The state Supreme Court denied his petition for a writ of habeas corpus. One Wo> Lee, in a similar situation, was denied a writ of habeas corpus by the United States Circuit Court, in California. Yick Wo took a. SCOPE AND LIMITS OF POWER 271 writ of error, and Wo Lee an appeal. Other facts appear in the opinion.] Mr. Justice Matthews. * * ♦ These ordinanc es * * * seem intended to confer, and actually do confer, not a discretion to ^ be exercised upon a consideration of the circumstances of eacH "^ case, but a naked and arbitrary power to give or with hold consent , *■ not only as to places, but as to persons. So that, if an applicant for such consent, being in every way a competent and qualified person, and having complied with every reasonable condition demanded by any public interest, should, failing to obtain the requisite consent of the supervisors to the prosecution of his business, apply for re- dress by the judicial process of mandamus, to require the super- visors to consider and act upon his case, it would be a sufficient answer for them to say that the law had conferred upon them au- thority to withhold their assent, without reason and without re- sponsibility. The power given to them is not confided to their discretion in the legal sense of that term, but is granted to their mere will. It is purely arbitrary, and acknowledges neither guid- ance nor restraint! * * * The ordinance * * * does not prescribe a rule and condi- tions for the regulation of the use of property for laundry pur- poses, to which all similarly situated may conform. It allows with- out restriction the use for such purposes of buildings of brick or stone J but, as to wooden buildings, constituting nearly all those in previous use, it divides the owners or occupiers into two classes, not having respect to their personal character and qualifications for the business, nor the situation and nature and adaptation of the buildings themselves, but merely by an arbitrary line, on one side of which are those who are permitted to pursue their industry by the mere will and consent of the supervisors, and on the other those from whom th^t consent is withheld, at their mere will and pleasure. And both classes are alike only in this, that they are tenants at will, under the supervisors, of their means of living. The ordinance, therefore, also differs from the not unusual case, where discretion is lodged by law in public ofiEcers or bodies to grant or withhold licenses to keep taverns, or places for the sale of spirituous liquors, and the like, when one of the conditions is that the applicant shall be a fit person for the exercise of the privi- lege, because in such cases the fact of fitness is submitted to the judgment of the officer, and calls for the exercise of a discretion of a judicial nature. * * * The fourteenth amendment to the Constitution is not confined to the protection of citizens. It says: "Nor shall any state deprive^ any person of life, liberty, or property without due process of law; > nor deny to any person within its jurisdiction the equal protection of the laws." These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to 272 THE POLICE POWER > any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. * * * It is contended on the part of the petitioners, that the ordinances for violations of which they are severally sentenced to imprison- ment, are void on their face, as being within the prohibitions of the fourteenth amendment ; and, in the alternative, if not so, that they are void by reason of their administration, operating unequally, so as to punish in the present petitioners what is permitted to others as lawful, without any distinction of circumstances — an unjust and illegal discrimination, it is claimed, which, though not made ex- pressly by the ordinances, is made possible by them. When we consider the nature and the theory' of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrain- ed to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law ; but in our system, while sovereign powers are dele- gated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true, that there must always be lodged somewhere, and in some person or body, the authority of final decision ; and in many cases of there administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in secur- ing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts ; Bill of Rights, the government of the commonwealth "may be a government of laws and not of men." For, the very idea that one man may be compelled to hold his life, or the means of living, or. any material right essential to the eniovment of life, at the mere will of another, seems to be intolerable in any country where free- dom prevails, as bemg the essence of slavery itself. * * * This conclusion, and the reasoning on which it is based, are de- ductions from the face of the ordinance, as to its necessary tenden- cy and ultimate actual operation. In the present cases we are not obliged to reason from the probable to the actual, and pass upon the validity of the ordinances complained of, as tried merely by the opportunities which their terms afford, of unequal and unjust discrimination in their administration. For the cases present the ordinances in actual operation, and the facts shown establish an SCOPE AND LIMITS OF POWER 27S administration directed so exclusively against a particular class of persons as to warrant and require the conclusion, that, whatever may have been the intent of the ordinances as adopted, thev are applied by the public authorities charged with their administration, and thus representing the state itself, with a mind so unequal and oppressive as to amount to a practical denial hy the, state of that equal protection of the laws which is secured to the petitioners, as to all other persons, bv the broad and benign provisions of the fourteenth amendment to the Constitution of the United States. Though the law itself be fair on its face and impartial in appear- ance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstanc- es, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. This principle of interpre- tation has been sanctioned by this court in Henderson v. Mayor of New York, 92 U. S. 259, 23 L. Ed. 543, Chy Lung v. Freeman, 92 U. S. 275, 23 L. Ed. 550, In re Virginia, 100 U. S. 339, 25 L. Ed. 676, Neal V. Delaware, 103 U. S. 370, 26 L. Ed. 567, and Soon Hing v. Crowley, 113 U. S. 703, 5 Sup. Ct. 730, 28 L. Ed. 1145. The present cases, as shown by the facts disclosed in the record, are within this class. It appears that both petitioners have com- plied with every requisite, deemed by the law or by the public officers charged with its administration, necessary for the protec- tion of neighboring property from fire, or as a precaution against injury to the public health. No reason whatever, except the will of the supervisors, is assigned why they should not be permitted to carry on, in the accustomed manner, their harmless and useful occupation, on which they depend for a livelihood. And while this consent of the supervisors is withheld from them and fr om two hundre d others who have also petitioned, all of whom happen to be Chinese subjects, eighty others, not Chinese subjects, are per- mitted to carrv on the same business under similar conditions. The fact of this discrimination is admitted . No reason for it is shown, and the conclusion cannot be resisted, that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which in the eye of the law is not jiistified. The dis- crimination is, therefore, illegal, and the public administration which enforces it is a denial of the equal protection of the laws, and a vi olation of the tourteent h amendment of the ConstitutiOnf The imprisonment of the ptLiLloners is, therelore, illegal, and they must be discharged. Judgment reversed. Haix Cases Const.L. — ^18 274 \ ^ POWER OF TAXATION ^n'V' POWER OP TAXATION iJr-' I. Independence of Federal and State Governments * McCULLOCH V. MARYLAND. (Supreme Court of United States, 1819. 4 Wheat 316, 4 L. Ed. 5T9.) [The facts and first part of the opinion appear ante, p. 77. The remainder, dealing with the power of Maryland to tax the local United States branch bank, follows:] Mr. Chief Justice MaeshaIvL. * * * That the power of tax- ation is one of vital importance ; that it is retained by the states : that it is not abri dged by the grant of a similar power to the gov- ernment oj the Union ; that it is to be concurrently exercised by the two governments: are truths which have never been denied. But, such is the paramount character of the Constitution, that its capacity to withdraw any subject from the action of even this pow- 1- er, is admitted. The states are expressly forbidden to lay any .duties on imports or exports, except what may be absolutely neces- sary for executing their inspection laws. If the obligation of this prohibition must be conceded — if it may restrain a state from the exercise of its taxing power on imports and exports; the same paramount character would seem to restrain, as it certainly mav restrain, a state from such other exercise of this power, as is in its nature incompatible with, a nd repugnant to, the constitutional laws of the Union. A law, absolutely repugnant to another, as entirely repeals that other as if express terms of repeal were used. On this ground the counsel for the bank place its claim to be ex- empted from the power of a state to tax its operations. There is no express provision for the case, but the claim has been sustained on a principle which so entirely pervades the Constitution, is so intermixed with the materials which compose it, so interwoven with its web, so blended with its texture, as to be incapable of be- ing separated from it, without rending it into shreds. This great principle is, that the Constitution and the laws made - in piirgiianf-p thpr eof are supreme: that they control the Constitu- tion and laws of the respective states, and cannot be controlled by them. From this, which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which, and on their application tothis case, the cause has been supposed to depend. These are,nsj) That a power to create im- plies a power to preserve. /2d) That a power to destroy, if wielded 3 For discussion of principles, see Black, Const. Law (3d Ed.) § 159. INDEPENDENCE OF FEDERAL AND STATE GOVERNMENTS 275 by a different hand, is hostile toand incompatible with, these powers to create and to preserve. Q^ That where this repugnancy- exists, that authority which is supreme must control, not yield to that over which it is supreme. * * * The power of Congress to create, and of course to continue, the. / bank, was the subject of the precedintr part of this opinion; and is no longer to be considered as questionabre. [ ~ That the power of taxing it by the states may be exercised so as to destroy it, is too obvious to be denied. But taxation is said to be an absolute power, which acknowledges no other limits than those expressly prescribed in the Constitution, and like sovereign power of every other description, is trusted to the discretion of those who use it. But the very terms of this argument admit that the sovereignty of the state, in the article of taxation itself, is sub^ ordinate to, and may be controlled bv. the Constitution of the Unit- ed States. How far it has been controlled by that instrument must be a question of construction. In making this construction, no principle not declared, can be admissible, which would defeat the legitimate operations of a supreme government. It is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordi- nate governments, as to exempt its own operations from their own influence. This effect need not be stated in terms. It is so in- volved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain. We must, therefore, keep it in view while construing the Constitution. The argument on the part of the state of Maryland, is, not that the states may directly resist a law of Congress, but that they may exercise their acknowledged powers upon it, and that the Con- stitution leaves them this right in the confidence that they will not abuse it. Before we proceed to examine this argument, and to subject it to the test of the Constitution, we must be permitted to bestow a few considerations on the nature and extent of this original right ] of taxation, which is acknowledged to remain with the states. It ^ is admitted that the power of taxing the people and their property is essential to the very existence of government, and may be legiti-"^ mately exercised on the objects to which it is applicable, to the ' utmost extent tb which the government may choose to carry it. * The only security against the abuse of this power, is found in the structure of the government itself. In imposing a tax the legisla- ture acts upon its constituents. This is in general a sufiScient se- curity against erroneous and oppressive taxation. The people of a state, therefore, give to their government a right of taxing themselves and their property, and as the exigen- cies of government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the 276 POWER OF TAXATION legislator, and on the influence of the constituents over their repre- sentativCj to guard them against its abuse. But the means em- ployed by the government of the Union have no such security, nor is the right of a state to tax them sustained by the same theory. Those means are not given by the people of a particular state, not given by the constituents of the legislature, which claim the right to tax them, but by the people of all the states. They are given by all, for the benefit of all — and upon theory, should be subjected to that government only which belongs to all. It may be objected to this definition, that the power of taxation is not confined to the people and property of a state. It may be exercised upon every object brought within its jurisdiction. This is true. But to what source do we trace this right? It is obvious, that it is an incident of sovereignty, and is -co-extensive with that to which it is an incident. All subjects over which the sovereign power of a state extends, are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self- evident. The sovereignty of a state extends , to everything which exists by its own authority, or is introduced by its permission ; but does it extend to those means which are employed by Cong;ress to carry into execution powers conferred on that body bv the people of the United States? We think it demonstrable that it does not. Those powers are not given by the people of a single state. They are given by the people of the United States, to a government whose laws, made in pursuance of the Constitution, are declared to be supreme. Consequently, the people of a single state cannot confer a sovereignty which will extend over them. If we measure the power of taxation residing in a state, by the extent of sovereignty which the people of a single state possess. and can confer on its government, we have an intelligible standard, applicable to every case to which the power may be applied. We have a principle which leaves the power of taxing the people and 'property of a state unimpaired; which leaves to a state the com- mand of all its resources, and which places beyond its reach, all those powers which are conferred by the people of the United States on the government of the Union, and all those means which are given for the purpose of carrying those powers into execution. We have a principle which is safe for the states, and safe for the Union. We are relieved, as we ought to be, from clashing sover- eignty; from interfering powers; from a repugnancy between a right in one government to pull down what there is an acknowl- edged right in another to build up ; from the incompatibility of a right in one government to destroy what there is a right in another to preserve. We are not driven to the perplexing inquiry, so unfit for the judicial department, what degree of taxation is the legiti- INDEPENDENCE OF FEDERAL AND STATE GOVERNMENTS 277 mate Jise, and what degree may amount to the abuse of the power. The attempt to use it on the means employed by the government of the Linlon, m pursuance oi the Constitution, is itself an abuse! because it is the usurpation of a power, which the people of a single state cannot give.. We find, then, on just theory, a total failure of this original right to tax the means employed by the government of the Union, for the execution of its powers. The right never existed, and the ques- tion whether it has been surrendered, cannot arise. But, waiving this theory for the present, let us resume the inquiry, whether this power can be exercised by the respective states, consistently with a , fair construction of the Constitution ? That the power to tax involves the power to destrov; that the power to destroy may defeat and render useless the power to create ; that there is a plain repugnance, in conferring on one gov- ernment a power to control the constitutional measures of another. ■ which other, with respect to those very measures, is declared to , be supreme over that which exerts the control, are propositions not to be denied . But all inconsistencies are to be reconciled by the magic of the word "confidence." Taxation, it is said, does not- necessarily and unavoidably destroy. To carry it to the excess of destruction would be an abuse, to presume which, would banish that confidence which is essential to all government. But is this a case of confidence? Would the people of any one state trust those of another with a power to control the most in- significant operations of their state government? We know they would not. Why, then, should we suppose that the people of any one state should be willing to trust those of another with a pow- er to control the operations of a government to which they have confided their most important and most valuable interests? In the legislature of the Union alone, are all represented. The legis- lature of the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidence that it will not be abused. T'^'^' then, is not a case of confidence, and we must consider it as it really is. If we apply the principle for which the state of Maryland con- tends, to the Constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the states. The American people have declared their Constitution, and the laws made in pursuance thereof, to be supreme; but this principle would transfer the su- premacy, in fact, to the states. If the sta tes mav tax one instrument, employed by the govern- ment in t ne execution of its powers, they mav tax any and every otiier instrument . They may tax the mail; they may tax the mint ; they may tax patent rights ; they may tax the papers of the 278 POWER OF TAXATION custom-house; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the states. Gentlemen say, they do not claim the right to extend state taxa- tion to these objects. They limit their pretensions to property. But on what principle is this distinction made?. Those who make it have furnished no reason for it, and the principle for which they contend denies it. Thev r.ontenH that the power of taxation has no other limi t than is found in the 10th section of the 1 st article of the Constitution ; that, with respect to everythmg else, the pow- er of the states is supreme, and admits of no control. If this be true, the distinction betwen property and other subjects to which the power of taxation is applicable, is merely arbitrary, and can ^never be sustained. This is not all. -If the controlling power of the states be established : if their supremacy as to taxation be ac- knowledged ; what is to restrain their exercising this control in any shape thev may please to give it? Thei r so vereignty is not confine? to taxation. That is not the only mode in which it might be dis- played. The question is, in truth, a question of supremacy; and if the right of the states to tax the means employed by the gen^ eral government be conceded, the declaration that the Constitu- tion, and the laws made in pursuance thereof, shall be the supreme law of the land, is empty and unmeaning declamation. * * * [After referring to the arguments of the "Federalist" :] It has also been insisted, that, as the power of taxation in the general and state governments is acknowledged to be concurrent, every argument which would sustain the right of the general government to tax banks chartered by the states, will equally sustain the right of the states to tax banks chartered by the general government. But the two cases are not on the same reason. The people of all the states have created the general government, and have conferred upon it the general power of taxation. The people of all the states, and the states themselves, are represented in Congress, and, by their representatives, exercise this power. When they tax the chartered institutions of the states, they tax their constituents; and these taxes must be uniform. But when a state taxes the operations of the government of the United States, it acts upon institutions created, not by their own constituents, but by people over whom they claim no control. It acts upon the measures of a government created by others as well as themselves, for the bene- fit of others in common with themselves. The difference is that which always exists, and always must exist, between the action of the whole on a part, and the action of a part on the whole — ^be- tween the laws of a government declared to be supreme, and those ot a government which, when in opposition to those laws, is not INDEPENDENCE OF FEDERAL AND STATE GOVERNMENTS 279 supreme. But if the full application of this argument could be admitted, it might bring into question the right of Congress to tax the state banks, and could not prove the right of the states to tax the Bank of the United States. The court has bestowed on this subject its most deliberate con- sideration. The result is a conviction that the states have no pow- er, by ta xation or otherw ise, tn retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the gen- eral government. This is, we think, the unavoidable consequence ot that supremacy which the Constitution has declared. We are unanimously of opinion, that the law passed by the legislature of Maryland, imposing a tax on the Bank of the United States, is un- constitutional and void. This opinion does not deprive the states of any resources which they originally possessed. It does not extend to a tax paid by the real propertv of the bank, in common with the other real property within the state, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the state . But this is a tax on the operations of the bank, and is, consequently, a tax on the operation of an instrument employed by the government . of the Union to carry its powers into execution. Such a tax must \ be unconstitutional. Judgment reversed. THE COLLECTOR v. DAY. (Supreme Court of United States, 1871. 11 Wall. 113, 20 L. Ed. 122.) [Error to the federal Circuit Court for Massachusetts. Federal statutes of 1864—67 levied a 5 per cent, tax upon all incomes of resi- dents of the United States over $1,000. Day, a Massachusetts pro- bate judge, was assessed upon his judicial salary, and, paving the tax under protest, sued to recover it back from the collector . From a judgment for Day this writ was taken.] Mr. Justice Nelson. The case presents the question whether or not it is competent for Congress, under the Constitution of the United States, to impose a tax upon the salary of a judicial officer of a State? In Dobbins v. Commissioners of Erie County, 16 Pet. 435, 10 L.j Ed. 1022, it was decided that it was not competent for the legisla- ture of a state to levy a tax upon the salary or emoluments of an officer of the United {States ! The decision was placed mainly upon the ground that the officer was a means or instrumentality em- ' ployed for carrying into effect some of the legitimate powers of the government, which could not be interfered with by taxation or oth- 280 POWER OF TAXATION erwise by the states, and that the salary or compensation for the service of the officer was - inseparably connected with the office; that if the officer, as such, was exempt, the salary assigned for his support or maintenance while holding the office was also, for like reasons, equally exempt.. * * * We shall now proceed to show that, upon the same construction of that instrument, and for like reasons, that goyernment is prohibited from taxing the salary of the judicial officer of a state. * * * The general goyernment, arjd the states, although both exist within the same territorial limits, are separate and distinct soyer- eignties, acting separately and independently of each other, within their respective spheres. The former in its appropriate sphere is • supreme; but. the states within the limits of their powers not granted, or. in the language of the tenth amendment, "reserved^" are as independent of the genefal government as that government within its sphere is independent of the states . * * * Upon looking into the Constitution, it will be found that but a few of the articles in that instrument could be carried into practical effect without the existence of the states. Two of the great departments of the government, the executive and legislative, depend upon the exercise of the powers, or upon the people of the states. The Constitution guarantees to the states a republican form of goyernment, and protects each against in- vasion or domestic violence. Such being the separate and inde- pendent condition of the states in our complex system, as recog- nized by the Constitution, and the existence of which is so indis- pensable, that, without them, the general government itself would disappear from the family of nations, it would seem to follow, as a reasonable, if not a necessary consequence, that the means and in- strumentalities employed for carrying on the operations of their governments, for preserving^ their existence, and fulfilling the high and responsible duties assigned to them in the Constitution, should be left free and unimpaired, should not be liable to be crippled, much less deteated, by the taxing power of another government, which power acknowledges no limits but the will of the legislative body imposing the tax. And, more especially, those means and instrumentalities which are the creation of their sovereign and re- served rights, one of which is the establishment of the judicial de- partment, and the appointment of officers to administer their laws. Without this power, and the exercise of it. we risk nothing in say - ing that no o ne of the states under the form of government guar- anteed b y thp i : onstitution could lon^r preserve its existence. A despotic government might. We have said that one of the re- served powers was that to establish a judicial department; it would have been more accurate, and in accordance with the exist- ing state of things at the time, to have said the power to maintain a judicial department. All of the thirteen states were in the pos- INDEPENDENCE OF FEDERAL AND STATE GOVERNMENTS 281 session of this power, and had exercised it at the adoption ot the Constitution ; and it is not pretended that any grant of it to the 1 general government is found in that instrument. It is, therefore,. ' one of the sovereign powers vested in the states by their constitu- J tions, which remained unaltered and unimpaired, arid in respect to i which the state is as independent of the general government as j that government is independent of the states. The supremacy of the general government, therefore, so much relied on in the argument of the counsel for the plaintifif in error, in respect to the question before us, cannot be maintained. The two governments are upon an equality, and the question is whether the power "to lay and collect taxes" enables the general govern- ment to tax the salary of a judicial officer of the state, which offi- cer is a means or instrumentality employed to carry into execution one of its most important functions, the administration of the laws, and which concerns the exercise of a right reserved to the states? We do not say the mere circumstance of the establishment of the judicial department, and the appointment of officers to administer the laws, being among the reserved powers of the state, disables the general government from levying the tax, as that depends upon the express power "to lay and collect taxes," but it shows that it is an original inherent power never parted with, and, in respect to which, the supremacy of that government does not exist, and is of no importarice in determining the question; and further, that being an original and reserved power, and the judicial officers ap- pointed under it being a means or instrumentality employed to carry it into effect, the right and necessity of its unimpaired exer- cise, and the exemption of the officer from taxation by the general government stand upon as solid a ground, and are maintained by principles and reasons as cogent, as those which led to the exemp- tion of the federal officer in Dobbins v. Commissioners of Erie from taxation by the state ; for, in this respect, that is, in respect to the reserved powers, the state is as sovereign and independent as the general government. And if the means and instrumentalities em- ployed by that government to carry into operation the powers granted to it are, necessarily, and, for the sake of self-preservation, , exempt from taxation by the states, why are not those of the states depending upon their reserved powers, for like reasons, equally ex- empt from federal taxation? Their unimpaired existence in the one case is as essential as in the other. It is admitted that there is no express provision in the Constitution that prohibits the general • government from taxing the means and instrumentalities of the states, nor is there any prohibiting the states from taxing the means and instrumentalities of that government. In both cases the exemption rests upon necessary implication, and is upheld by the great law of self-preservation ; as any government, whose means, employed in conducting its operations, if subject to the control of 282 POWER OF TAXATION another and distinct government, can exist only at the mercy of that government. Of what avail are these means if another power may tax them at discretion? * * ' Judgment affirmed. [Bradley, J., gave a dissenting opinion.] CALIFORNIA v. CENTRAL PACIFIC RAILROAD COM- PANY (1888) 127 U. S. 1, 40, 41, 8 Sup. Ct. 1073, 1080, 32 L. Ed. 150, Mr. Justice Bradley ( holding invalid a tax levied by California upon franchises to construct and operate a railroad conferred oy act of Congress upon a California corporation) : "Assuming, then, that the Central Pacific Railroad Company has received the important franchises referred to by grant of the Unit- ed States, the question arises whether they are legitimate subjects of taxation by the state. They were granted to the company for national purposes, and to subserve national ends. It seems very clear that the state of California can neither take them away, nor destroy nor abridge, them, nor cripple them by onerous burdens. Can it tax them? It may undoubtedly tax outside visible property of the company, situated with the state. That is a different thing. But may it tax franchises which are the grant of the United States? In our judgment, it cannot. What is a franchise? Under the' English law, Blackstone defines it as 'a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject.' 2 Comm. 37. Generalized, and divested of the special form which it assumes under a monarchical government based on feudal tradi- ''Hions, a franchise is a right, privilege, or power of public concern^ which nug-ht not tn he exercised bv private individuals at their mere will and pleasure, but should be reserved for public control and ad-_ ministration, either bv the government directly, or by public agents, acting under such conditions and rep^ulations as the government may impose in the public interest, and for the public security . Such rights and powers must exist under every form of society. They are always educed by the laws and customs of the community. Un- der our system, their existence and disposal are under the control of the legislative department of the government, and they cannot be assumed or exercised without legislative authority. No private per- son can establish a public highway or a public ferry or railroad, or charge tolls for the use of the same, without authority from the legislature, direct or derived. These are franchises. No private person can take another's property, even for a public use, without such authority ; which is the same as to say that the right of emi- nent domain can only be exercised by virtue of a legislative grant. This is a franchise. No persons can make themselves a body cor- porate and politic without legislative authority. Corporate capacity is a franchise. The list might be continued indefinitely. INDEPENDENCE OF FEDERAL AND STATE GOVERNMENTS 283 "In view of this description of the nature of a franchise, how can it be possible that a franchise. granted by Congress can be subject to taxation by a state without the consent of Congress? Taxation is a burden, and may be laid so heavily as to destroy the thing taxed, or render it valueless. As Chief Justice Marshall said in McCulloch V. Maryland, 4 Wheat. 316, 4 L. Ed. 579, 'The power to tax involves the power to destroy.' Recollecting the funda- mental principle that the Constitution, laws, and treaties of the United States are the supreme law of the land, it seems to us almost absurd to contend that a power given to a person or corporation by the United States may be subjected to taxation by a stat e. The power conferred emanates from and is a portion of the power of the government that confers it. To tax it is not only derogatory to the dignity, but subversive of the powers, of the government, and repugnant to its paramount sovereignty." RAILROAD COMPANY v. PENISTON. (Supreme Court of United States, 1873. 18 Wall. 5, 21 L. Ed. 787.) [Appeal from federal Circuit Court for Nebraska. In 1862 Con- gress incorporated the Union Pacific Railroad Companv to build a railroad between the Missouri river and the Pacific coast, which, as constructed, crossed Nebraska from east to west. Nebraska be- came a state in 1867, and in 1869 taxed all of the propertv of the said railroad within the state. The company resisted that portion of the tax imposed m Lincoln county, and its bill for an injunc- tion was denied in the above court. Other facts appear in the opin- ion.] Mr. Justice Strong. * * * Before the adoption of the Con- stitution of the United States, each of the states possessed un- limited power to tax, either directly or indirectly, all persons and property within [its] jurisdiction. * * * The Constitution con- tains no express re striction of this power other than a prohibition .. to lav'anv dutv ot tonnage, or anv impost or duty on imports or : exports, except what may be absolutely necessary for executing the ' vtat^'s inspprtinn laws. * * * ^ There are, we admit, certain subjects of taxation which are with- drawn from the power of the states, not by any direct or express provision of the federal Constitution, but by what may be regarded as its necessary implications. They grow out of our complex sys- tem of government, and out of the fact that the authority of the national government is legitimately exercised within the states. While it is true that government cannot exercise its power of taxa- tion so as to destroy the state governments, or embarrass their law- ful action, it is equally true that the states may not levy taxes the direct effect of which shall be to hinder the exercise of any powers 284 POWER OF TAXATION yyhich belong to the national government. The Constitution con- templates that none of those powers may 5e restrained by state legislation. But it is often a difficult question whether a tax im- posed by a state does in fact invade the domain of the general gov- ernment, or interfere with its operations to such an extent, or in such a manner as to render it unwarranted. It cannot be that a " state tax which remotely affects the efficient exercise of a federal power is for that reason alone inhibited by the Constitution. To t hold that would be to deny to the states all power to tax persons or L- property. Every tax levied by a state withdraws from the reach of federal taxation a portion of the property from which it is taken, and to that extent diminishes the subject upon which federal taxes may be laid. The states are, and thev must ever be, coexistent with the national government. Neither may destroy the other. Hence [_ the federal Constitution must receive a practical construction,, Its ^imitations and its implied prohibitions must not be extended so far as to destroy the necessary powers of the states, or prevent their efficient exercised ' These observations are directly applicable to the case before us. It is insisted on behalf of the plaintiffs that the tax of which they complain has been laid upon an agent of the general government constituted and organized as an instrument to carry into effect the powers vested in that government by the Constitution, and it is claimed that such an agency is not. subject to state taxation. That the Union Pacific Railroad Company was created to subserve, in part at least, the lawful purposes of the national government ; that it was authorized to construct and maintain a railroad and tele- graph line along the prescribed route, and that grants were made to it, and privileges conferred upon it, upon condition that it should at all times transmit despatches over its telegraph line, and trans- port mails, troops, and munitions of war, supplies and public stores,. ' upon the railroad for the government, whenever required to do so. by any department thereof, and that the government should at all times have the preference in the use of the same for all the purposes, aforesaid, must be conceded. Such are the plain provisions of its. charter. * * * The charter also contains other provisions looking to a supervi- sion and control of the road and telegraph line, with the avowed purpose of securing to the government the use and benefit thereof for postal and military purposes. It is unnecessary to mention these in detail. They all look to a purpose of Congress to secure an agency competent and under obligation to perform certain offices for the general government. Notwithstanding this, the railroad and the telegraph line are neither in whole nor in part the property of the government. The ownership is in the complainants, a pri- vate corporation, though existing for the performance of public duties. The government owns none of its stock, and though it may INDEPENDENCE OF FEDERAL AND STATE GOVERNMENTS 285 appoint two of the directors, the right thus to appoint is plainly re- served for the sole purpose of enabling the enforcement of the en- gagements which the company assumed, the engagements to which we have already alluded. Admitting, then, fully, as we do, that the company is an agent of the general government, designed to be employed, and actually em- ployed, in the legitimate service of the government, both military and postal, does it necessarily follow that its property is exempt from state taxation? In Thomson v. Union Pacific Railway Company. 9 Wall. 579. 19 L. Ed. 792 , after much consideration, we held that the property of that company was not exempt from state taxation, though their rail- road was part of a system of roads constructed under the direction and authority of the United States, and largely for the uses and pur- poses of the general government. * * * A state tax upon the property of the company, its roadbed, rolling-stock, and personalty in general, was ruled by this court not to be in conflict with the fed- eral Constitution. It may, therefore, be considered as settled that no constitutional implications prohibit a state tax upon the property of an agent of the government merely because it is the property ^ such an agent. A contrary doctrine would greatly embarrass the ' states in the collection of their necessary revenue without any cor- ' responding advantage to the United States. A very large proper- ' tion of the property within the states is employed in execution of i the powers of the government. It belongs to governmental agents, and it is not only used, but it is necessary for their agencies. Unit- ed States mails, troops, and munitions of war are carried upon almost every railroad. Telegraph lines are employed in the national service. So are steamboats, horses, stage-coaches, foundries, ship- yards, and multitudes of manufacturing establishments. They are the property of natural persons, or of corporations, who are instru- ments or agents of the general government, and they are the hands by which the objects of the government are attained. Were they exempt from liability to contribute to the revenue of the states It is manifest the state governments would be paralyzed. While it Is of the utmost importance that all the powers vested by the Con- stitution of the United States in the general government should be preserved in full efficiency, and while recent events have called for the most unembarrassed exei^cise of many of those powers, it has never been decided that state taxation of such property is impliedly prohibited. It is, however, insisted that the case qf Thomson v. Union Pacific Railroad Company differs from the case we have now in hand in the fact that it was incorporated by the territorial Legislature and the Legislature of the state of Kansas, while these complainants were incorporated by Congress. We do not perceive that this presents any reason for the application of a rule different from that which 286 , POWER OF TAXATION was applied in the former case. * * * The United States have no more ownership of the road authorized by Congress than they had in the road authorized by Kansas. If the taxation of either is ^ unlawful, it is because the states cannot obstruct the exercise of national powers. As was said in Weston v. Charleston, 2 Pet. 467, 7 L,. Ed. 481, they cannot, by taxation or otherwise, "retard, im- pede, burden, or in any manner control the operation of the consti- tutional laws enacted by Congress to carry into execution the pow- ers vested in the general government." The implied inhibition, if any exists, is against such obstruction, and that must be the same whfether the corporation whose property is taxed was created bv Congress or bv a state Leeislature. Nothing, we think, in the past decisions of this court is inconsist- ent with the opinions we now hold. * * * i^ [McCuUoch v. Maryland, ante, p, 274] the tax held unconstitutional was laid upon the notes of the bank. The institution was prohibited from issuing notes at all except upon stamped paper furnished by the state, and to be paid for on delivery, the stamp upon each note being propor- tioned to its denomination. The tax, therefore, was not upon any property of the bank, but upon one of its operations, in fact, upon its right to exist as created. It was a direct impediment in the way of a governmental operation performed through the bank as an agent. It was a very different thing, both in its nature and effect, - from a tax on the property of the bank. No wonder, then, that it was held illegal. But even in that case the court carefuUv limited L the effect of the decision, it does not extend, said the ChiefTustice. to a tax paid bv the real property of the bank, in common with the other real property in the state, nor to a tax imposed on the interest which the citizens of Maryland may hold in the i nstitution, in com- " mon with the other property ot tne same description throughout the state. * * * "I n Osborn V. Bank [9 Wheat. 738, 6 L. Ed. 204] t he tax held un- constitutional was a tax upon the existence of the bank — upon its right to transact business within the state of Ohio, * * * \)^^ at the same time i t was d f^l^rpH hy thp m urt that the local property of the bank might be taxed, and, as in McCuUoch v. Maryland, a difference was pointed out between a tax upon its property and one upon its action. * * * This distinction, so clearly drawn in the earlier decisions, between a tax on the prnpertv nf a gnvpr nmental agent, and a tax upon the action of such agent, or upon his right to be. has ever since been recognized. All state taxation which does not impair the agent's efificiency in the discharge of his duties to the government has been sustained when challenged, and a tax upon his property generallv has not been regarded as beyond the power of a state to impose. * * * It IS, therefore, manifest that exemption of federal agencies from state taxation is dependent, not upon the nature of the agents, or INDEPENDENCE OF FEDERAL AND STATE GOVERNMENTS 287 J upon the mode of their constitution, or upon the fact that they are' agents, but upon the effect of the tax : that is. unnn the question whether the tax does in truth deprive'them of power to serve the government as thev were intended to serve it, or does hinder the efficient exercise of their power. A tax upon their property has no such necessary effect. It leaves them free to discharge the duties they have undertaken to perform. A tax upon their operations is a direct obstruction to the exercise of federal powers. In this case the tax is laid upon the property of the railroad com- pany precisely as was the tax complained of in Thomson v. Union Pacific. It is not imposed upon the franchises or the right of the company to exist and perform the functions for which it was brought into being. Nor is it laid upon any act which the company has been authorized to do. It is not the transmission of despatches, nor the transportation of United States mails, or troops, or muni- tions of war, that is taxed, but it is exclusively the real and personal property of the agent, taxed in common with all other property in the state of a similar character. It is impossible to maintain that this is an interference with the exercise of any power belonging to the general government, ahd if it is not, it is prohibited by no con- stitutional implication. . * * * Decree affirmed. [SwAYNE, J., gave a concurring opinion. Bradley, J., gave a dis- senting opinion, in which Field, J., concurred. Hunt, J., also dis- sented.] FLINT V. STONE TRACY CO. (1911) 220 U. S. 107, 152, 153, 155-158, 171, 172, 31 Sup. Ct. 342, 349, 55 L. Ed. 389, Ann. Cas. 1912B, 1312, Mr. Justice Day (" upholding a federal excise tax, equivalent to 1 per cent, of its net income above $5.000, levied upon the doing of business in the United States bv any corporation or lomt stock company) : "It is next contended that the attempted taxation is void be- cause it le vies a tax upon the exclusive right of a state to grant corporate franchises, because it taxes franchises which are the creation of the state in its sovereign right and authority. This proposition is rested upon the implied limitation upon the powers of national and state governments to take action which encroaches upon or cripples the exercise of the exclusive power of sovereignty in the other. It has been held in a number of cases that the state cannot tax franchises created by the United States or the agencies or corporations which are created for the purpose of carrying out governmental functions of the United States. McCulloch v. Mary- land, 4 Wheat. 316, 4 L. Ed. 579; Osborn v. Bank of United States, 9 Wheat. 738, 6 L. Ed. 204; Union P. R. Co. v. Peniston, 288 POWER OF TAXATION 18 Wall. 5, 21 L. Ed. 787; California v. Central P. R. Co., 127 U. S. 1, 32 L. Ed. 150, 2 Inters. Com. Rep. 153, 8 Sup. Ct. 1073. " An examination of these cases will show that in each case wheFe the tax was held invalid, the decision rested upon the propo- sition that the corporation was created to carry into effect powers conferred upon the federal government in its sovereign capacity^ and the attempted taxation was an interferenc e w^fh ^'hf effprttial exercise of such powers. "In Osborn v. Bank of United States, supra, a leading case upon the subject, whilst it was held that the Bank of the United States was not a private corporation, but a public one, created for nation- al purposes, and therefore beyond the taxing power of the state. Chief Justice Marshall, in delivering the opinion of the court, con- ceded that if the corporation had been originated for the manage- ment of an individual concern, with private trade and profit for its great end and principal object, it might be taxed by the state. * * * [Here follows a quotation from this case, 9 Wheat, at 859, 860.] "While the tax in this case, as we have construed the statute, is imposed upon the exercise of the privilege of doing business in a corporate capacity, as such business is done under authority of state franchises, it becomes necessary to consider in this connec- tion the right of the federal government to tax the activities of private corporations which arise from the exercise of franchises ^_ granted bv the state in creating and conferring powers upon such corporations. We think it is the result of the cases heretofore de- ^ cided in this court, that such business activities, though exercised because of state-created franchises, are not beyond the taxing power of the United States. * * * [Citing Mich. C. Ry. v. Slack, 100 U. S. 595, 25 L. Ed. 647; U. S. v. Erie Ry., 106 U. S. 327, 1 Sup. Ct. 223, 27 L. Ed. 151 ; Spreckels Ref. Co. v. McClain, 192 U. S. 397, 24 Sup. Ct. 376, 48 L. Ed. 496.] The question was raised and decided in the case of Veazie Bank v. Fenno. 8 Wall. Le.533, 19 L. Ed. 482. In that well-known case a tax upon the notes of a state bank issued^ for circulation was sustained. Mr. Chief Justice Chase, in the course of the opinion, said : " 'Is it, then, a tax on a franchise granted by a state, which Congress, upon any principle exempting the reserved powers of the states from impairment by taxation, must be held to have, no authority to lay and collect? " 'We do not say that there may not be such a tax. It may be admitted that the reserved rights of the states, such as the right to pass laws, to give effect to laws through executive action, to administer justice through the courts, and to employ all necessary agencies for legitimate purposes of state government, are not proper subjects of the taxing power of Congress. But it cannot be admitted that franchises granted by a state are necessarily exempt . -»- INDEPENDENCE OF FEDERAL AND STATE GOVERNMENTS 289 from taxation ; for franchises are property, often very valuable and productive property ; and when not conferred for the purpose of giving effect to some reserved power of a state, seem to be as properly objects of taxation as any other property. " 'But in the case before us the object of taxation is not the fran- chise of the bank, but property created, or contracts made and is- sued under the franchise, or power to issue bank bills. A railroad company, in the exercise of its corporate franchises, issues freight receipts, bills of lading, and passenger tickets; and it cannot be doubted that the organization of railroads is quite as important to the state as the organization of banks. But it will hardly be ques- tioned that these contracts of the company are objects of taxation within the powers of Congress, and not exempted by any relation to the state which granted the charter of the railroad. And it seems difficult to distinguish the taxation of notes issued for cir- culation from the taxation of these railroad contracts. Both de- scriptions of contracts are means of profit to the corporations which issue them ; and both, as we think, may properly be made contributory to the public revenue.' (Pp. 547, 548.) "It is true that the decision in the Veazie Bank Case was also placed, in a measure, upon the authority of the United States to control the circulating medium of the country, but the force of the reasoning which we have quoted has not been denied or de- parted from . * * * [Here follow references to Thomas v. U. S., 192 U. S. 363, 24 Sup. Ct. 305, 48 h. Ed. 481, and Nicol v. Ames, 173 U. S. 509, 19 Sup. Ct. 522, 43 L. Ed. 786.] "When the Constitution was framed, the" right to lay excise taxes was broadly conferred upon the Congress. At that time very few corporations existed. If the mere fact of state incorpora- tion, extending now to nearly all branches of trade and industry . could withdraw the legitimate objects of federal taxation from the exercise of the power conferred, the result would be to exclude the national government from many objects upon which indirect taxes could be constitutionally imposed._ Let it be supposed that a group of individuals, as partners, were carrying on a business upon which Congress concluded to lay an excise tax. If it be true that the forming of a state corporation would defeat this purpose, by taking the necessary steps required by the state law to create a corporation and carrying on the business under rights granted by a state statute, the federal tax would become invalid and that source of national revenue be destroyed, except as to the business, in the hands of individuals or partnerships. It cannot be supposed that it was intended that it should be within the power of individ- uals acting under state authority to thus impair and limit the ex- ertion of authority which may be essential to national existence. "In this connection South Carolina v. United States, 199 U. S. Haix Cases Oonst.L. — 19 290 POWER OP TAXATION ^437, 461, 50 L. Ed. 261, 26 Sup. Ct. 110, 4 Ann. Cas. 737, is im- portant. In that case it was held that the agents of the state gov- ernment, carrying on the business ot selling liquor under state authority, were liable to pay the internal revenue tax imposed by the federal government. In the opinion previous cases in this . court were reviewed, and the rule to be deduced therefrom stated to be that the exemption of state agencies and instrumentalities '• from national taxation was limited to those of a strictly govern- mental character, and did not extend to those used by the state in • carrying on business of a private character., "The cases unite in exempting from federal taxation the means and instrumentalities employed in carrying on the governmental operations of the state. The exercise of such rights as the estab- lishment of a judiciary, the employment of officers to administer and execute the laws, and similar governmental functions, cannot be taxed by the federal government. The Collector v. Day, 11 Wall. 113, 20 L. Ed. 122; United States v. Baltimore & O. R. Co., 17 Wall. 322, 21 h. Ed. 597; Ambrosini v. United States, 187 U. S. 1, 47 E. Ed. 49, 23 Sup. Ct. 1, 12 Am. Crim. Rep. 699. "But this limitation has never been extended to the exclusion of the activities of a merely private business from the federal taxing power, although the power to exercise them is derived from an act of incorporation by one of the states. We therefore reach the conclusion that the mere fact that the hnsinesg taxed is done i;i pursuance of authority granted bv a state in the creation of pri- vate corporations does not exempt it from the exercise of federal authority to lew excise taxes upon such privileges. * * * "We come to the question. Is a so-called public-service corpo- ration, such as the Coney Island and Brooklyn Railroad Compahy, in case No. 409, and the Interborough Rapid Transit Company, No. 442, exempted from the operation of this statute? In the case of South Carolina v. United States, 199 U. S. 437; 50 L. Ed. 261, 26 Sup. Ct. 110, 4 Ann. Cas. 737, this court held that when a state, acting within its lawful authority, undertook to carry on the liquor business, it did not withdraw the agencies of the state, carrying on the traffic, from the operation of the internal revenue laws of the United States. If a state may not thus withdraw from the o pera- tion of a federal taxing law a subject-matter of such taxation, if Is ditticult to see how the incorporation of companies whose serv; ice, though of a public nature, is. nevertheless, with a view to private profit, can have the effect of denying the federal right to reach such properties and activities for the purposes of revenue. "it IS no part of the essential governmental functions of a state ^ to provide means of transportation, supply artificial light, water, and the like. These objects are often accomplished through the - medium of private corporations, and though the public may derive ^a benefit from such operations, the companies carrying on such JURISDICTION AND PUBLIC PURPOSE 291 enterprises are nevertheless private companies, whose business is prosecuted for private emolument and advantage. For the pur- pose of taxation they stand upon the same footing as other pri- vate corporations upon which special franchises have been con- ferred. " Thejt rne Histinrtinn ic l ^etween the attempted taxation of thos^ operations of the states essential to the execution of its g-overn- mental functions, and which the state can only do itself, and those activities which are of a private character . The former, the United States may not interfere with by taxing the agencies of the state in carrying out its purposes ; the latter, although regulated by the state, and exercising delegated authority, such as the right of emi- nent domain, are not removed from the field of legitimate federal taxation. Applying this principle, we are of opinion that the so- called public-service corporations represented in the cases at bar- are not exempt from the tax in question." II. Jurisdiction and Public Purpose ' UNION REFRIGERATOR TRANSIT CO. v. KENTUCKY. (Supreme Court of United States, 1905. 199 TJ. S. 194, 26 Sup. Ct 36, 50 L. Ed. 150, 4 Ann. Cas. 493.) [Error to the Court of Appeals of Kentucky. The defendant company, a Kentucky corporation, was sued b v that state for the ad valorem property taxes assessed for certain vears upon 2,000 freight cars owned by it and rented to shippers, who took pos- session of them from time to time at Milwaukee. Wis., and used them to carrv freight in various parts of the United States, Can- ada, and Mexico . According to a system of averages based upon gross earnings, only from 30 to 70 of such cars were employed yearly in Kentucky . The state Court of Appeals directed a judg- ment against the company for taxes upon all of its cars.] Mr. Justice Brown. In this case the question is directly pre- sented whether a corporation organized under the laws of Ken- tucky is subject to taxation upon its tangible personal property permanently located in other states, and employed there in the prosecution of its business. Such taxation is charged to be a vio- lation ol the due process of law clause of the fourteenth amend- ment. Section 4020 of the Kentucky Statutes, under which this assess- ment was made, provides that "all real and person al estate within 2 For discussion of principles, see Black, Const. Law {3d Ed.) §§ 160, 161, 163, 164. 292 POWER OF TAXATION this state, and all personal estate of persons residing in this state, and of all corporations organized under the laws of this state, whether the property be in or out of this state,, * * * shall be subject to taxation." * * * The power of taxation, indispensable to the existence of every civilized government, is exercised upon the assumption of an equivalent rendered to the taxpayer in the protection of his per- son and property, in adding to the value of such property, or in the creation and maintenance of public conveniences in which he shares, — such, for instance, as roads, bridges, sidewalks, pave- ments, and schools for the education of his children. If the tax- ing power be in no pos ition t o render these services, or otherwise to benefit the person or property taxed, and such property be wholly within the taxmg power of another state, to which it may be said to owe an allegiance, and to which it looks for protection, the taxation of such property within the domici l of the owner partakes rather of the nature of an extortion tha n a t ax, and has, been repeatedly held by this court to be beyond the power of the lepi'islature. and a taking of property without due process of law . Northern C. R. Co. v. Jackson, 7 Wall. 262, 19 L. Ed. 88; State Tax on Foreign-Held Bonds, 15 Wall. 300, 21 L. Ed. 179 ; Tappan V. Merchants' Nat. Bank, 19 Wall. 490-499, 22 L. Ed. 189-193; Delaware, L,. & W. R. Co. v. Pennsylvania, 198 U. S. 341, 358, 49 L. Ed. 1077, 1083, 25 Sup. Ct. 669. 'in Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. Ed. 979, 17 Sup. Ct. 581, it was held, after full consideration, that the taking of private property with- out com pensation was a d enial of due process within the fourr teenth amenameriE see also JJavidson v. JSlew Orleans, 96 U. S. 97, 102, 24 t. Ed. 616, 618; Missouri P. R. Co. v. Nebraska, 164 U. S. 403, 417, 41 L. Ed. 489, 495, 17 Sup. Ct. 130; Mt. Hope Ceme- tery v. Boston, 158 Mass. 509, 519, 35 Am. St. Rep. 515, 33 N. E. 695. Most modern legislation upon this subject has been directed (1) to the requirement that every citizen shall disclose the amount of his property subject to taxation, and shall contribute in propor- tion to such amount; and (2) to the avoidance of double taxation. As said by Adam Smith in his Wealth of Nations, book V, chap. 2, pt. 2, p. 371 : "The subjects of every state ought to contribute to- wards the support of the government as nearly as possible in pro- portion to their respective abilities; that is, in proportion to the revenue which they respectively enjoy under the protection of the state. The expense of government to the individuals of a great nation is like the expense of management to the joint tenants of a great estate, who are all obliged to contribute in proportion to their respective interests in the estate. In the observation or neglect of this maxim consists what is called the equality or in- equality of taxation." JURISDICTION AND PUBLIC PURPOSE 293 But notwithstanding the rule of uniformity lying at the basis. of every just system of taxation, there are doubtless many individ- ual cases where the weie^ht of a tax falls unequally upon the own- ers of the property taxed . This is almost unavoidable under every ^ system of direct taxation. But the tax is not rendered illegal by ' such discrimination. Thus, every citizen is bound to pay his pro- ' portion of a school tax, though he have no children; of a police tax, though he have no buildings or personal property to be guard- ed; or of a road tax, though he never use the road. In other words, a genera l tax cannot be dissected to show that, as to cer- tain constituent parts, the taxpayer receives no benefit . Even in case of special assessments imposed for the improvement of prop- erty within certain limits, the fact that it is extremely doubtful whether a particular lot can receive any benefit from the improve- ment does not invalidate the tax with respect to such lot. Kelly V. Pittsburgh, 104 U. S. 78, 26 L. Ed. 658; Amesbury Nail Fac- tORy Co. V. Weed, 17 Mass. 53; Thomas v. Gay, 169 U. S. 264, 42 L. Ed. 740, 18 Sup. Ct. 340; Louisville & N. R. Co. v. Barber Asphalt Paving Co., 197 U. S. 430, 49 h. Ed. 819, 25 Sup. Ct. 466. Subject to these individual exceptions, the rule is that in classify- ing property for taxation, some benefit to the property taxed is a controlling consideration, and a plain abuse of this power will sometimes justify a judicial interference. Norwood v. Baker, 172 U. S. 269, 43 L. Ed. 443, 19 Sup. Ct. 187. It is often said protec- tion and payment of taxes are correlative obligations. It is also essential to the validity of a tax that the property shall be within the territorial jurisdiction of the taxing power. Not , only is the operation of state laws limited to persons and property ' within the boundaries of the state, but property which is wholly and exclusively within the jurisdiction of another state receives none of the protection for which the tax is supposed to be the com- pensation. This rule receives its most familiar illustration in the cases of land, which, to be taxable, must be within the limits of the state. Indeed, we know of no case where a legislature has as- sumed to i mpose a tax upon land within the jurisdiction of another state; much less where such action has been defended by any court. It is said by this court in the State Tax on B^oreign-Held Bonds Case, 15 Wall. 300-319, 21 L. Ed. 179-187, that no adjudica- tion should be necessary to establish sn obvious a proposition as that property lying beyond the jurisdiction of a state is not a subi iect upon which her taxing power can be legitimately exercised . The argument agamst the taxability of land within the jurisdic- tion of another state applies with pgiial rng-pnry f p tan^rihlp ppr- sonal property bevond the jurisdiction. It is not only beyond the sovereignty of the taxing state, but does not and cannot receive protection under its laws. True, a resident owner may receive an income from such property, but the same may be said of real es- 294 POWER OF TAXATION tate within a foreign jurisdiction. Whatever be the rights of the state with respect to the taxation of such income, it is clearly be- yond its power to tax the land from which the income is derived. As we said in Louisville & J. Ferry Co. v. Kentucky, 188 U. S. 385- 396, 47 L. Ed. 513-518, 23 Sup. Ct. 463: "While the mode, form, and extent of taxation are, speaking generally, limited only by the wisdom of the legislature, that power is limited by a principle in- hering in the very nature of constitutional government. — namely, that the taxation imposed must have relat ion to a subiect within the jurisdiction of the taxing government ." See also McCuUoch V. Maryland, 4 Wheat. 316-429, 4 L. Ed. 579-607; Hays v. Pacific Mail S. S. Co., 17 How. 596-599, 15 L. Ed. 254, 255 ; St. Louis v. Wiggins Ferry Co., 11 Wall. 423, 429, 431, 20 L. Ed. 192, 194, 195 ; Morgan v. Parham, 16 Wall. 471^76, 21 L. Ed. 303, 304. Suspecting this, there is an obvious -distinction between tangible and intangible property, in the fact that the latter is held secretly ; ..that there is no method by which its existence or ownership can be ascertained in the state of its situs except, perhaps, in the case of mortgages or shares of stock. So if the owner be discovered, there is no way by which he can be reached by process in a state X)ther than that of his domicil, or the collection of the tax other- wise enforced. In this class of cases the tendency of modern au- thorities is to apply the maxim "mobilia sequuntur personam." and to hold that the property mav be taxed at the domicil of the owner as the real situs of the debt, and also, more particularly in the case of mortgages, in the state where the property is retained. Such have been the repeated rulings of this court. Tappan v. Mer- ■ chants' Nat. Bank, 19 Wall. 490, 22 L. Ed. 189; Kirtland v. Hotch- kiss, 100 U. S. 491, 25 L. Ed. 558 ; Bonaparte v. Appeal Tax Court, 104 U. S. 592, 26 L. Ed. 845; Sturges v. Carter, 114 U. S. 511, 29 L. Ed. 240, 5 Sup. Ct. 1014; Kidd v. Alabama, 188 U. S. 730, 47 L. Ed. 669, 23 Sup. Ct. 401 ; Blackstone v. Miller, 188 U. S. 189, 47 L. Ed. 439, 23 Sup. Ct. 277. If this occasionally results in double taxation, it much oftener happens that this class of property escapes altogether. In the case of intangible property, the law does not look for absolute equality, but to the much more practical consideration of collect- ing the tax upon such property, either in the state of the domicil or the situs. Of course, we do not enter into a consideration of the question, so much discussed by political economists, of the double taxation involved in taxing the property from' which these securi- ties arise, and also the burdens upon such property, such as mort- gages, shares of stock, and the like, — the securities themselves. The arguments in favor of the taxation of intangible property at the domicil of the owner have no application- to tangible property? ■» The fact that such property is visible, easily found, and difficult to conceal, and the tax readily collectible, is so cogent an argument' JURISDICTION AND PUBLIC PURPOSE 295 for its taxation at its situs, that of late there is a general consensus of opinion that it is taxable in the state where it is permanently located and employed, and where it receives its entire protection, irrespectiye of the domicil of the owner. We haye, ourselves, held in a number of cases that such property, permanently located in a state other than that of its owner, is taxable there. Brown v. Houston, 114 U. S. 622, 29 L. Ed. 257, 5 Sup. Ct. 1091; Coe v. Errol, 116 U. S. 517, 29 L. Ed. 715, 6 Sup. Ct. 475; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 35 L. Ed. 613, 3 Interest. Com. R. 595, 11 Sup. Ct. 876. * * * [Here follows the citation of other federal cases and a discus- sion of various state decisions.] But there are two recent cases in this court which we think completely cover the question under consideration, and require the reversal of the judgment of the state court. The first of these is that of the Louisville & J. Ferry Co. v. Kentucky, 188 U. S. 385, 47 L,. Ed. 513, 23 Sup. Ct. 463. That was an action to recover certain taxes imposed upon the corporate franchise of the defendant com- pany, which was organized to establish and maintain a ferry be- tween Kentucky and Indiana. The defendant was also licensed by the state of Indiana. We held that the fact that such franchise had been granted bv the commonwealth of Kentucky did not bring withm the jurisdiction of Kentucky, for the purpose of taxation, the franchise granted to the same company by Indiana, and which we held to be an incorporeal hereditament, derived from and hav- i ng its legal situs m that state. It was adjudged that such taxa- tion amounted to a deprivation of property without due process of law, in violation of the fourteenth amendment; as much so as if the state taxed the land owned by that company ; and that the ofificers of the state had exceeded their power in taxing the whole franchise without making a deduction for that obtained from In- diana, the two being distinct, "although the enjoyment of both are essential to a complete ferry right for the transportation of persons and property across the river both ways." The other and more recent case is that of the Delaware, L. & W. R. Co. V. Pennsylvania, 198 U. S. 341, 49 L. Ed. 1077, 25 Sup. Ct. 669. That was an assessment upon the capital stock of the railroad company, wherein it was contended that the assessor should have deducted from the value of such stock certain coal mined in Pennsylvania and owned by it, but stored in New York, there awaiting sale, and beyond the jurisdiction of the common- wealth at the time appraisement was made. This coal was taxable, and in fact was taxed, in the state where it rested for the purposes of sale at the time when the appraisement in question was made. Both this court and the supreme court of Pennsylvania had held that a tax on the corporate stock is a tax on the assets of the cor- poration issuing such stock. The two courts agreed in the gen- 296 POWER OF TAXATION eral proposition that tangible property permanently outside of the state, and having no situs within the state, could not be taxed- But they dififered upon the question whether the coal involved was permanently outside of the state. In delivering the opinion it was said: "However temporary the stay of the coal might be in the particular foreign states where it was resting at the time of the appraisement, it was definitely and forever beyond the jurisdic- tion of Pennsylvania. And it was within the jurisdiction of the foreign states for purposes of taxation, and, in truth, it was there taxed. We regard this tax as, in substance and in fact, though not m form, a tax specifically levied upon the property of the corpora- tion, and part of that property is outside and beyond the jurisdic- tion of the state which thus assumes to tax it." The decision in that case was really broader than the exigencies of the case under consideration require, as the tax was not upon the personal prop- erty itself, but upon the capital stock of a Pennsylvania corpora- tion, a part of which stock was represented by the coal, the value of which was held should have been deducted. The adoption of a general rule that tangible personal property in other states mav he taxed at the domicil of the owner involves possibilities of an extremelv serious character. Not only would it authorize the taxation of furniture and other property kept at country houses in other states or even in foreign countries, of stocks of goods and merchandise kept at branch establishments, when already taxed at the state of their situs, but of that enor- mous mass of personal property belonging to railways and other corporations, which might be taxed in the state where they are incorporated, though their charter contemplated the construction and operation of roads wholly outside the state, and sometimes across the continent; and when, in no other particular, they are subject to its laws and entitled to its protection. The propriety of such incorporations, where no business is done within the state, is open to grave doubt; but it is possible that legislation alone can furnish a remedy. * * * It is unnecessary to say that this case does not involve the ques- tion of the taxation of intangible personal propertv. or of inherit- ance or succession taxes, or of questions arising between different municipalities or taxing districts within the .same state, which are controlled by different considerations. * * * Judgment reversed. [Whits, J., concurred in the result.] Mr. Justice Holmes. It seems to me that the result reached by the court probably is a desirable one, but I hardly understand how it can be deduced from the fourteenth amendment; and as the Chief Justice feels the same difficulty, I think it proper to say that my doubt has not been removed. JURISDICTION AND PUBLIC PURPOSE 297 LOAN ASSOCIATION v. TOPEKA. (Supreme Court of United States, 1875. 20 Wall. 655, 22 L. Ed. 455.) [Error to the federal Circuit Court for Kansas. The city of To- peka, Kansas, under statutory authority, issued $100.000 of bonds as a donation to the King Bridge Company to aid itin establishing a manufactory of iron hridg-es in that city. The plaintiff associa- tion of Cleyeland, Ohio, sued Topeka in the federal Circuit Court for Kansas for the interest on some of these bonds owned by plain- tiff. The city demurred and received judgment, and a writ of error was taken. Other facts appear in the opinion.] Mr. Justice Miller. * * * [After declining to pass upon one of the grounds urged for invalidating the bonds under the Kansas constitution:] We find ample reason to sustain the demurrer on the second ground on which it is argued by counsel and sustained by the Circuit Court. That proposition is that the act authnrizes the towns and other municipalities to which it applies, by issuing bonds or loaning their credit, to take the property of the citizen under the guise of taxation to pay these bonds, and use it in aid of the enterprises of others which are not of a public character, thus perverting the right of taxation, which can only be exercised for a public use, to the aid of individual interest and personal pur- poses of profit and gam. The proposition as thus broadly stated is not new, nor is the question which it raises difficult of solution. I f^these municipal corporations, which are in fact subdivisions of the state, and which for many reasons are vested with quasi legislative powers, have a fund or other property out of which they can pay the debts which they contract, without resort to taxation, it may be within the >ower "f thp 1p p ;-is1atTire of the state to authorize them to use it m aid of projects strictly private or personal, but which would in a secondary manner contribute to the public good; or where there is property or money vested in a corporation of the kind for a particular use, as public worship or charity, the legislature may pass laws authorizing them to make contracts in reference to this property, and incur debts payable from that source. But such instances are few and exceptional, and the proposition is a very broad one, that debts cont yi't'tpd hy municip al corporq- tin ^s must be paid, if paid at all, out of taxes which they may law-r " fully lew, and that all contracts creating debts to be paid in future,, rmt limited t.n payment from some other source, imply an obhga- tinn tp pav hv taxation. It follows that in this class of cases the right to contract must be lit"'ted by the right to tax, and if in the given case no tax can lawfully be levied to pay the debt, the contract itself is void for want of authority to make it. * * * We proceed to the inquiry whether such a power exists in the 298 POWER OF TAXATION legislature of the state of Kansas. * * * The theory of our government, state and national, is opposed to the deposit of un- limited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defin- ed powers. • There are limitations on such power which grow out of thq essential nature of all free governments; implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A and B, who were husband and wife to each other, should be so no longer, but that A should thereafter be the husband of C, and B the wife of D ; or which should enact that the homestead now owned by A should no longer be his, but should henceforth be the property of B. Whiting v. Fond du Lac, 25 Wis. 188, 3 Am. Rep. 30; Cooley on Constitutional Limitations, 129, 175, 487 ; Dillon on Municipal Corporations, § 587. Of all the powers conferred upon government that of taxation is most liable to abuse. Given a purpose or object for which tax- ation may be lawfully used, and the extent of its exercise is in its very nature unlimited. It is true that express limitation on -the j^ amount of tax to be levied or the things to be taxed may be im- posed by constitution or statute, but in most instances for which taxes are levied, as the support of government, the prosecution of war, the national defence, any limitation is unsafe. The entire resources of the people should in some instances be at the disposal of the government. The power to tax is, therefore, the strongest, the most pervading of all the powers of government, reaching directly or indirectly to all classes of the people. It was said by Chief Justice Marshall, in the case of McCulloch v. vState of Maryland, 4 Wheat. 431, 4 L. Ed. 579, that the power to tax is the power to destrov . A striking . instance of the truth of the proposition is seen in the fact that the existing tax of ten per cent, imposed by the United States on the circulation of all other banks than the national banks, drove out of existence every state bank of circulation within a year or two after its passage. This power can as readily be employed against ■ one class of individuals and in favor of another, so as to ruin the one class and give unlimited wealth and prosperity to the other, if there is no implied limitation of the uses for which the power may be exercised. To lay with one hand the power of the government on the prop- _erty of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery hecausp it is done under the forms of law and is railed taxation. Thi.s is not legislation. It is a decree under legislative forms. JURISDICTION AND PUBLIC PUKPOSB 299 Nor is it taxation. A "tax," says Webster's Dictionary, "is a rate or sum of money assessed on the person or property of a citizen by government for the use of the nation or state." "Taxes are burdens or charges imposed by the legislature upon persons or property to raise money for public purposes." Cooley on Consti- tutional Limitations, 479. Coulter, J., in Northern Liberties v. St. John's Church, 13 Pa. 104 (see also Pray v. Northern Liberties, 31 Pa. 69; Matter of Mayor of New York, ll Johns. [N. Y.] 77; Camden v. Allen, 26 N. J. Law, 398 ; Sharpless v. Mayor of Phila- delphia, 21 Pa. 147, 59 Am. Dec. 759; Hanson v. Vernon, 27 Iowa, 47, 1 Am. Rep. 215 ; Whiting v. Fond du Lac, 25 Wis. 188, 3 Am. Rep. 30), says, very forcibly, "I think the common mind has every- where taken in the understanding that taxes are a public imposi- tion, levied by authority of the government for the purpose of carrying on the government in all its machinery and operations — that they are imposed for a public purpose." We have established, we think, beyond cavil that there can be no lawful tax which is not laid for a public purpose. It may not be easy to draw the line in all cases so as to decide what is a public purpose in this sense and what is not. It is undoubtedly the duty of the legislature which imposes or authorizes municipalities to impose a tax to see that it is not to be used for purposes of private interest instead of a public use, and the courts can only be justified in interposing when a violation of this principle is clear and the reason for interference cogent. And in deciding whether, in the given case, the object for which the taxes are assessed falls upon the one side or the other of this line, they must be governed mainly by the course and usage of the eov- ernment, the objects for which taxes have been customarily and by long r.nur.se nf legislation levied, what objects or purposes have- been considered necessary to the support and for the proper use of the government, whether state or municipal. Whatever law- fully pertains to this, and is sanctioned by time and the acquies- cence of the people, may well be held to belong to the public use, and proper for the maintenance of good government, though this may not be the only criterion of rightful taxation. But in the case before us, in which the towns are authorized to contribute aid by way of taxation to any class of manufacturers, there is no difficulty in holding that this is not such a public pur- pose as we have been considering. If it be said that a benefit] results to the local public of a town by establishing manufacturers, the same may be said of any other business or pursuit which em- . ploys capital or labor. The merchant, the mechanic, the innkeeper, the banker, the builder, the steamboat owner are equally promoters of the public good, and equally deserving the aid of the citizens by forced contributions. No line can be drawn in favor of the manufacturer which would not open the coffers of the public treas- 300 POWER OF TAXATION ury to the importunities of two-thirds of the business men of the city or town . * * * Judgment affirmed. [CuFFORD, J., gave a dissenting opinion.] FALLBROOK IRRIGATION DISTRICT v. BRADLEY. (Supreme Court of United States, 1896. 164 U. S. 112, 17 Sup. Ct 56, 41 U Ed. 369.) [Appeal from the federal Circuit Court for the Southern District of California. The statutes of California (further stated in the opin- ion below) provided for the organization of irrigation districts, the irrigation works in which were to be provided for by taxation upon all the real property in the district according to its value. Such a district was formed, including within it the land of Mrs. Bradley, a subject of Great Britain resident in California. She refused to pay the tax assessed against the land under this statute, and filed a bill in the above-mentioned court to enjoin the giving of a deed for said land when sold for non-payment of said tax. The injunction issued and the Irrigation District appealed. Other facts appear in the opinion.] Mr. Justice Peckkam. * * * Coming to a review of these various objections, we think the first, that the water is not for a public use, is not well founded. The question what constitutes a public use has been before the courts of many of the states, and their decisions have not been harmonious ; the inclination of some of these courts being towards a narrower and more limited defini- tion of such use than those of others. There is no specific prohibition in the federal Constitution which acts upon the states in regard to their taking private property for any but a public use.. The fifth amendment, which provides, among other things, that such property shall not be taken for public use without just compensation, applies only to the federal government, as has many times been decided. Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. 22, 31 L. Ed. 80 ; Thorington v. Montgomery, 147 U. S. 490, 13 Sup. Ct. 394, 37 L,. Ed. 252. In the fourteenth amendment the provision regarding the taking of private property is omitted, and the prohibition against the state is confined to its depriving any person of life, liberty, or property without due process of law. It is claimed, however, that the citizen is deprived of his property without due process of law if it be taken by or under state authority ' for any other than a public use, either under the guise of taxation or by the assumption of the right of eminent domain. In that way the question whether private property has been taken for any other i«.than a public use becomes material in this court, even where the JURISDICTION AND PUBLIC PURPOSE 301 taking is under the authority of the state, instead of the federal, government. Is this assessment for the nonpayment of which the land of the plaintiff was to be sold, levied for a public purpose? The question has, in substance, been answered in the affirmative by the people of California, and by the legislative and judicial branches of the state government. * * * [Here follow the quotation of various constitutional and statutory provisions, and the citation of] Irriga- tion Dist. V. Williams, 76 Cal. 360, 18 Pac. 379 ; Irrigation Dist. v. ' De Lappe, 79 Cal. 351, 21 Pac. 825; In re Madera Irrigation Dist., 92 Cal. 296, 28 Pac. 272, 675, 14 L. R. A. 755, 27 Am. St. Rep. 106. * * * It is obvtous. however, that what is a public use frequentlv and larg^ely depends upon the facts and circumstances surrounding the particular subiect-matter in regard to which the character of the use is questioned.. To provide for the irrigation of lands in states where there is no' color of necessity therefor, within any fair meaning of the term, and simply for the purpose of gratifying the taste of the owner, or his desire to enter upon the cultivation of an entirely new kind of crop, not necessary for the purpose of rendering the ordinary culti- vation of the land reasonably remunerative, might be regarded by courts as an improper exercise of legislative will, and the use might not be held to be public in any constitutional sense, no mat- ter how many owners were interested in the scheme. On the other hand, in a state li ke California, which confessedly embraces millions of acres ot and lands, an act of the legislature providing for their irrigation might well be regarded as an act devoting the water to a public use, and therefore as a valid exercise of the legislative power. The people of California and the members of her legislature must, in the nature of things, be more familiar with the facts and circum- stances which surround the subject, and with the necessities and the occasion for the irrigation of the lands, than can any one be who is a stranger to her soil. This knowledge and familiarity must have their due weight with the state courts which are to pa'ss upon the question of public use in the light of the facts which surround the subject in their own state. For these reasons, while not regarding the matter as concluded by these various declarations and acts and decisions of the people and legislature and courts of California, we yet, in the consideration of the subject, accord to and treat them with very great respect, and we regard the decisions as embodying the deliberate judgment and matured thought of the courts of that state on this question. Viewing the subject for ourselves, and in the light of these con- siderations, we have very little difficulty in coming to the same conclusion reached by the courts of California. The use must be regarded as a public use, or else it would seem 302 POWER OP TAXATION to follow that no general scheme of irrigation can be formed or car- ried into effect. In general, the water to be used must be carried for some distance, and over or through private property, which cannot be taken in invitum if the use to which it is to be ^ut be not public ; and, if there be no power to take property by condem- nation, it may be impossible to acquire it at all. The use for which private property is to be taken must be a public one, whether the taking be by the exercise of the right of eminent domain or by that of taxation. Cole v. La Grange, 113 U. S. 1, 5 Sup. Ct. 416, 28 L. Ed. 896. A private company or corporation, without the power to acquire the land in invitum. would be of no real benefit; and, at any rate, the_CGSt«f^he undertaking would be so greatly enhanced byJi-he^lEnowiedge that the land must be acquired by purchase that it would be practically impossible to build the works or obtain the water. Individual enterprise would be equally ineffectual. No one owner would find it possible to construct and maintain water- works and canals any better than private corporations or com- panies, and, unless they had the power of eminent domain, they could accomplish nothing. If that power could be conferred upon them, it could only be upon the ground that the property they took was to be taken for a public purpose. While the consideration that the work of irrigation must be abandoned if ttie use of the water may not be held to be or con- stitute a public use is not to be regarded as conclusive in favor pf such use, vet that fact is in this case a most important considera- tion. Millions of acres of land otherwise cultivable must be left in their present arid and worthless condition, and an effectual ob- stacle will therefore remain in the way of the advance of a large portion of the state in material wealth and prosperity. To irrigate, and thus to bring into possible cultivation, these large masses of nthpr^isp worthless lands, would seem to be a public purpose, and a matter of public interest, not confined to the landowners, or even to any one section of the state. The fact that the use of the water is limited to the landowner is not, therefore, a fatal objection to this legislation. It is not essential that the entire community, or even any considerable portion thereof, should directly eniov or partici- pate in an improvement in order to constitute a public use . All landowners in the district have the right to a proportionate share of the water, and no one landowner is favored above his fellow in his right to the use of the water. It is not necessary, in order that the use should be public, that every resident in the district should have the right to the use of the water. The water is not used for general, domestic, or for drinking purposes, and it is plain from the scheme of the act that the water is intended for the use of those who will have occasion to use it on their lands. Never- theless, if it should so happen that at any particular time the land- owner should have more water than he wanted to use on his land,. JURISDICTION AND PUBLIC PURPOSE 303 he has the right to sell or assign the surplus or the whole of the water, as he may choose. The method of the distribution of the water for irrigation pur- poses provided for in section 11 of the act is criticised as amount- ing to a distribution to individuals, and not to lands, and on that account it is claimed that the use for irrigation may not be achiev- ed, and therefore the only purpose which could render the tise a public one may not exist. This claim we consider not well found- ed in the language and true construction of the act. It is plain that some method for apportioning the use of the water to the various lands to be benefited must be employed, and what better plan than to say that it shall be apportioned ratably to each land- owner upon the basis which the last assessment of such owner for district purposes within the district bears to the whole sum as- sessed upon the district? Such an apportionment, when followed by the right to assign the whole or any portion of the waters apportioned to the landowner, operates with as near an approach to justice and equality as can be hoped for in such matters, and does not alter the use from a public to a private one. This right of assignment may be availed of also by the owner of any lands which, in his judgment, would not be benefited by irrigation, al- though the board of supervisors may have otherwise decided. We think it clearly appears that all who, by reason of their ownership of or connection with any portion of the lands, would have occa- sion to use the water, would, in truth, have the opportunity to use it upon the same terms as all others similarly situated. In this way the use, so far as this point is concerned, is public, because all per- sons have the right to use the water under the same circumstances. This is sufificient. The case does not essentially dififer from that of Hagar v. Rec- lamation Dist., Ill U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569, where this court held that the power of the legislature of California to prescribe a system for reclaiming swamp lands was not incon- sistent with any provision of the federal constitution. The power does not rest simply upon the ground that the reclamation must be necessary for the public health. That, indeed, is one ground for interposition by the state, but not the only one. Statutes authoriz- ing drainage of swamp lands have frequently been upheld inde- pendently of any effect upon the public health, as reasonable regu- lations for the general advantage of those who are treated for this purpose as owners of a common property. Head v. Manufactur- ing Co., 113 U. S. 9, 22, 5 Sup. Ct. 441, 446, 28 L. Ed. 889; Wurts V. Hoagland, 114 U. S. 606, 611, 5 Sup. Ct. 1086, 1089, 29 L. Ed. 229; Cooley, Tax'n (2d Ed.) p. 617. If it be essential or material for the prosperity of the communitv. and if the improvement be one in which all the landowners have to a certain extent a com- rfion mterest, and the improvement cannot be accomplished with^ 304 POWER OF TAXATION out, the, rnnriirrprrp nf all or nearly all of such owners bv reason of the peculiar natural condition of the tract sought to be reclaim- ed, then such reclamation may be made, and the, land rendered useful to all, and at their joint expense. In such case the absolute right of each individual owner of land mt^st yield to a certain extent,, or be modified by corresponding rights on the part of other owners for what is declared upon the whole to be for the public benefit. Irrigation is not so different from the reclamation of swamps as to require the application of other and different principles to the case. The fact that, in draining swamp lands, it is a necessity to drain the lands of all owners which are similarly situated, goes only to the extent of the peculiarity of situation and the kind of ■ land. Some of the swamp lands may not be nearly so wet and worthless as some others, and yet all may be so situated as to be benefited by the reclamation ; and whether it is so situated or not must be a question of fact. The same reasoning applies to land which is, to some extent, arid, instead of wet. Indeed, the general principle that arid lands may be provided with water, and the cost thereof provided for by a general tax, or by an assessment for local improvement upon the lands benefited, seems to be admitted by counsel for the appellees. This, necessarily, assumes the proposi- tion that water used for irrigation purposes upon lands which are actually arid is used for a public purpose, and the tax to pay for it is collected for a public use, and the assessment upon lands benefited is also levied for a public purpose. Taking all the facts into consideration, as already touched upon, we have no doubt that the irrigation of really arid lands is a public purpose, and the wa- ter thus used is put to a public use. ^4)) The second objection urged by the appellees herein is that the ope rations of this act need not be, and are not limited to arid, unproductive lands, but include within its possibilities all lands, no matter how fertile or productive, so long as they are suscep- tible, "in their natural state," of one mode of irrigation from a common source, etc. The words "in their natural state" are in- terpolated in the text of the statute by the counsel for the appel- lees, on the assumption that the supreme court of California has thus construed the act in the Tregea Case, 88 Cal. 334, 26 Pac. 241. The objection had been made in that case that it was unlaw- ful to include the city of Modesto in an irrigation district. The court, per Chief Justice Beatty, said that the legislature undoubt- edly intended that cities and towns should in proper cases be in- cluded in irrigation districts, and that the act as thus construed did not violate the state Constitution. The learned chief justice also said: "The idea of a city or town is, of course, associated with the existence of streets to a greater or less extent, lined with shops and JDEISDICTION AND PUBLIC PURPOSH 305 stores, as well as of dwelling houses ; but it is also a notorious fact that in many of the towns and cities of California there are gardens and orchards, inside the corporate boundEfries, requiring irriga- tion. It is equally notorious that in many districts lying outside of the corporate limits of any city or town, there are not only roads and highways, but dwelling houses, outhouses, warehouses, and shops. With respect to these things, which determine the use- fulness of irrigation, there is only a difiference of degree between town and country. * * * We construe the act to mean that the board may include in the boundaries of the district all lands which in their natural state would be benefited by irrigation, and are susceptible of irrigation by one system, regardless of the facj: that buildings or other structures may haye been erected here and there upon small lots, which are thereby rendered unfit for cultiya- tion. at the same time that their value for other purposes may have been greatly enhanced. " * * * As an evidence of what can be done under the act, it is alleged in the complaint in this suit that the plaintiff is the owner of 40 acres of land in the district, and that it is worth $5,000, and that it is subject to beneficial use without the necessity of water for, irrigation, and that it has been used beneficially for the past sev- eral years for purposes other than cultivation with irrigation. These allegations are admitted by the answer of the defendants, who nevertheless assert that, if a sufficient supply of water is ob- tained for the irrigation of the plaintiff's land, the same can be beneficially used for many purposes other than that for which it can be used without the water for irrigating the same. What is the limit of the power of the legislature in regard to providmg for irrigation? Is it bounded by the- absolutely worth- less condition of the land without the artificial irrigation? Is it confined to land which cannot otherwise be made to yield the smallest particle of a return for the labor bestowed upon it? If not absolutely worthless and incapable of growing any valuable thing without the water, how valuable may the land be, and to what beneficial use and to what extent may it be put, before it reaches the point at which the legislature has no power to provide for its improvement by that means? The general power of the legislature over the subject of providing for the irrigation of cer- tain kinds of lands must be admitted and assumed. The further questions of limitation, as above propounded, are somewhat legis- lative in their nature, although subject to the scrutiny and judg- ment of the courts, to the extent that it must appear that the use intended is a "public use," as that expression has been defined rela- tively to this kind of legislation. The legislature by this act has not itself named any irrigation district, and, of course, has not decided as to the nature and quality Hall Cases Const.L. — 20 306 POWEE OF TAXATION of any specific lands which have been included in any such district. It has given a general statement as to what conditions must exist in order to permit the inclusion of any land within a district. The ^ land which can properlv be so included is. as we think, sufficientlv limited in its character by the provisions of the act. It must be susceptible of one mode of irrigation, from a common source. anH* by the same system of works, and it must be of such a character that it will be benefited by irrigation by the system tn be adopted. This, as we think, means that the amount of benefit must be sub- stantial, and not limited to the creation of an opportunity to there- after use the land for a new kind of crop, while not substantially benefiting it for the cultivation of the old kind, which it had pro- duced in reasonable quantities, and with ordinary certainty and success, without the aid of artificial irrigation. The question whether anv particular land would be thus benefited is necessarily one of fact. * * * jf j^nd whic h can, to a certa in extent, be beneficially used without artificial irrigation, may vet be so much improved by it that it will be thereby, and for its original use, substantially benefited, and, in addition to the former use, though not in exclusion of it. if it can then be pt:| t t*^ ntVipr anfl more, re- munerative uses, we think it erroneous to say that the furnishing of artificial irrigation to that kind Of land cannot be, in a legal sense, a public improvement, or the use of the water a public use. * * * Judgment reversed. [Fuller, C. J., and Field, J., dissented.] OPINION OF TH^ JUSTICES. (Supreme Judicial Court of Massachusetts, 1912. 211 Mass. 624, 98 N. E. 611, 42 L. R. A. [N. S.] 221.) [Answer to questions of the Massachusetts House of Repre- sentatives, set forth in the opinion below.] Opinion (of all the Justices). The questions relate to the con- stitutionality of a bill entitled "An act to extend and define the duties of the Homestead Commission." The general scheme em- bodied in the proposed bill is that the commonwealth shall pur- chase land, and develop, build upon, rent, manage, sell and re-pur- chase the same. The Homestead Commission is clothed with the fullest power to go into the business of buying, renting and selling real estate. As expressed in the bill, its purpose is to provide homes "for mechanics, laborers, or other wage-earners." or as sug- gested by the amendment set forth in the second question, to im- prove "the public health by providing homes in the more thinly populated areas of the state for those who might otherwise live in fhe most congested areas of the state." In a constitutional sense JURISDICTION AND PUBLIC PURPOSE 307 the difference between these two statements of purpose is not material in view of the actual provisions of the bill. The substance of it is that the commonwealth is to go into the business of furnish- ing homes for people who have money enough to pay rent and ultimately to become purchasers. It is not ^i plan f nr panppr tp- ' lief. The question is whether this is a public use. I To this fundamental test must be brought all governmental ac- - tivity in every system based upon reaspn rather than force. The dominating design of a statute requiring the use of public funds must be the promotion of public interests and not the furtherance of the advantage of individuals. However beneficial in a general or popular sense it mav be that private interests should prosper and thus incidentallv serve the public, the expenditure of public money to this end is not justified. Government aid to manufactur- ing enterprises, the development of water powers and other nat- ural resources by private persons or corporations with public funds, either through loans or by the more indirect method of ex- emption from taxation or taking of stock, have been universally condemned by courts throughout the country, although often at- tempted by legislation. The leading case is Lowell v. Boston, 111^ Mass. 454, 15 Am. Rep. 39, where a statute was considered au-^ thorizing the city of Boston to issue bonds for the raising of mon- ey to be lent to owners of real estate whose buildings had been de- stroyed in the devastation wrought by the Boston fire of 1872. This statement of the law by Mr. Justice Wells, at page 461 of 111 Mass., 15 Am. Rep. 39, hardly can be surpassed for accuracy and clearness: " The promotion of the interests of individuals, either in respect of property or business, although it may result incidentally in the advancement of the public welfare, is, in its essential character, a private and not a public object . However certain and great the ' resulting good to the general public, it does not, by reason of its comparative importance, cease to be incidental. The incidental advantage to the public or to the state, which results from the pro- motion of private interests, and the prosperity of private enter- prises or business, does not justify their aid by the use of public money raised by taxation, or for which taxation may become necessary. It is the essential character of the direct object of the expenditure which must determine its validity, as justifying a tax, and not the magnitude 6f the interests to be affected, nor the de- gree to which the general advantage of the community and thus the public welfare may be ultimately benefited by their promo- tion." This principle has been applied to a great variety of cases. It was amplified with a full citation of authorities in Opinion of the Justices, 204 Mass. 607, 91 N. E. 405, 27 L. R. A. (N. S.) 483. The question, in its last analysis is one of taxation. Can the 308 POWER OF TAXATION commonwealth raise money by taxation for the purposes set forth, in the act? * * * - [After referring to a provision permitting the use by the Home- stead Commission of the savings bank deposits of unknown own- ers, untouched for 30 years, which a prior statute had required to be paid to the state to be kept for the owners :] [This] would be treating the money in substance as escheated. Even if it were escheated it then would be money in the treasury freed from any trust. Such money, however, is public money and can be appro- priated only to public uses. It can no more be diverted for pri- vate benefit than can money raised bv taxation. Simmons v. Han- over, 23 Pick. 188; Allen v. Marion, 11 Allen, 108. Taxation is somewhat historical in its nature and can be most intelligently approached by comparison of those subjects which have been held to be a public use and those which have been held not to be a public use. It is not now open to question that the establishment and maintenance of water and sewerage systems and electric light and gas plants are public uses. They relate to. commodities which are or have become universally necessary, and they cannot be procured by each individual or family acting sep- arately, but require co-operation. As a practical matter provision for these necessities is monopolistic in character, and having due regard to the reasonable convenience of the public, there can be no competition respecting them. The permanently exclusive use of portions of the public ways is essential to the effective furnishing of these necessities. Highways are public in their nature, and their construction and repair are legitimate public expenses. Hence they cannot be appropriated to any use which is private. These necessities cannot be provided without the exercise of pow- ers conferred only by the Legislature, and commonly require the exercise of eminent domain. Although water and artificial light are in a certain sense beneficial to individuals, their public func- tions are so overshadowing as to stamp them as proper subjects for state or municipal ownership. Opinion of the Justices, 150 Mass. 592, 24 N. E. 1084, 8 L. R. A. 487. On the other hand it was said in Opinions of the Justices, in 1893, 155 Mass. 598, 30 N. E. 1142, 15 L. R. A. 809, and again in 1903, 182 Mass. 605, 66 N. E. 25, that it was beyond the power of the Legislature to authorize cities and towns to engage in the busi- ness of furnishing coal or fuel to the public. The economic aspects of conducting business of this character through public instrumen- talities are not for our consideration. Such a system is not pos- sible under our Constitution. The grounds upon which these opin- ions were founded are that such enterprises are conducted by in- dividuals. They are univers ally recog nized as legitimate and prop- ^ fields for private and personal adventure, ^ JNo legislative au- thority is required to engage in them, and no powers derived from JURISDICTION AND PUBLIC PURPOSE 309 that source are needed for their prosecution. It is a natural right subject only to regulation by the police power. A person lawfully engaged in such business cannot be driven out by taxation to sup- port his rival even though that rival be an arm of government. The questions of the present order are closely analogous to those raised by the order of the honorable House considered in Opinion of the Justices, 204 Mass. 607, 91 N. E. 405, 27 L. R. A. (N. S.) 483. It was said there in substance that it was not within the power of the Legislature to authorize the taking of land out- side the limits of streets for the purpose of being leased or sold under such restrictions as would insure proper development of industrial and commercial facilities. Such purpose was said to be primarily for the aggrandizement of individuals and only in- cidentally for the promotion of the public weal. We are unable to distinguish the purchase, development, rental and sale of land in the manner provided by the present bill from the principles an- nounced in these decisions and opinions and many others collected and somewhat reviewed in 204 Mass. 607, 91 N. E. 405, 27 L. R. A. (N. S.) 483. Buying and selling land always has been freely exercised by all individuals who desired, under the Constitution. Proprietorship of his own home has been one of the chief elements of strength in the citizen, and widely diffused land ownership has conferred stability upon the state. It is matter of common knowledge that thousands of inhabitants of the commonwealth who are "mechan-_ ics, laborers or other wage-ea rners" have become, t hrough in^ " dustrv. temperance and frugality, owners ot the homes in which. , they dwell. These proprietors, however humble may be their houses, cannot be taxed for the purpose of enabling the state to aid others in acquiring a home whose temperament, environment ' or habits have heretofore prevented them from attaining a like position. Although eminent domain differs from taxation in the occasion and manner of its exercise, it rests for its justification upon the same basic principle of public necessity. If this be held to be a public purpose, it would be lawful to authorize the commis- sion to exercise the power of eminent domain. This would mean that the home of one wage-earner might be taken by the power of the commonwealth for the purpose of handing it over to an- other wage-earner. Neither the power of taxation nor of eminent domain goes to this extent. If the purpose is a public one, the property of every inhabitant, however improved or used, must yield to the superior right. But if the end to be gained is not pub- lic, no one can be compelled to contribute under either form of governmental power. Ownership of a bit of land is one of the deep seated desires of mankind. The property resting on such proprietorship is among the dearest rights in the minds of many people secured by the 310 POWER OF TAXATION Constitution. If the power exists in the Legislature to take a tract of land away from one owner for the purpose of enabling an- other to get the same tract, the whole subject of such ownership becomes a matter of legislative determination and not of constitu- tional right. Experiments in other lands, where the people have established either no bounds or fragile ones to the absolutism of governmental powers by a written constitution, afford no guide in the determina- tion of what our Constitution permits. It may he urged that the measure is aimed at mitigating the evils of overcrowded tenements and unhealthv slums. These evils are a proper subject for the exercise of the police power . Through ^the eriactment of building ordinances, regulations and inspection as to housing and provision for light and air lies a broad field for the suppression of mischiefs of this kin-d. Questions answered in the negative. III. Classification for Taxation * PEOPLE ex rel. HATCH v. REARDON. (Court of Appeals of New York, 1906. 184 N. Y. 431, 77 N. E. 970, 8 L. E. A. [N. S.] 314, 112 Am. St. Eep. 628, 6 Ann. Cas. 515.) [Appeal from the Appellate Division of the Supreme Court of New York for the First Department. A New York statute of 1905 imposed a stamp tax, of two cents on each $100 of face value or fraction thereof, on all sales or transfers of shares of stock in associations or corporations. Non-payment of the tax was made a misdemeanor. One Hatch sold 100 shares of the Southern Rail- way Company of Virginia, at the market value of $30.75 a share, and 100 shares of the Chicago, Milwaukee & St. Paul Railroad Company of Wisconsin, at the market value of $172 a share. The face value of each of these shares was $100. Hatch was arrested for non-payment of the tax on these sales, and a writ of habeas corpus was issued for his release. The writ was dismissed by the Supreme Court and this was affirmed by the Appellate Division. Other facts appear in the opinion.] Vann, J. * * * Second. The classification made by selecting one kind of property and taxing the transfer of that only, is as- sailed as so arbitrary, discriminating', and unreasonable as to de- prive certam persons of their property without due process of law and to withhold from them the equal protection of the laws. All s For discussion of principles, see Black, Const. Law (3d Ed.) §§ 165, 166. CLASSIFICATION FOR TAXATION ^11 taxation is arbitrary, for it compels the citizen to give up a part of his property ; it is generally discriminating, for otherwise every- thing would be taxed, which has never yet been done, and there would be no exemption on account of education, charity, or re- ligion, and frequently it is unreasonable, but that does not make it unconstitutional, even if the result is double taxation. People v. Home Ins. Co., 92 N. Y. 328, 347. The right to tax is not granted by the Constitution hii^ nf necessity underlies it. because govern- ment could not exist or perform its functions without it. While It may be regulated and limited by the fundamental law, it exists "independently of it as a necessary attribute of sovereignty." People V. Adirondack Ry. Co., 160 N. Y. 225, 236, 54 N. E. 689, , 692. "The power of taxation being legislative, all the incidents are within the control of the Legislature. The purposes for which a tax shall be levied ; the extent of taxation ; the apportionment of the tax; upon what property or class of persons the tax shall operate ; whether the tax shall be general or limited to a particular locality, and in the latter case, the fixing of a district of assess- ment; the method of collection, and whether a tax shall be a charge upon both person and property, or only on the land — are matters within the discretion of the Legislature and in respect to which its determination is final." Genet v. City of Brooklyn, 99 N. Y. 296, 306, 1 N. E. 777, 783. "A tax may be imposed only on certain callings and trades, for when the state exerts its power to tax it is not bound to tax all pursuits or all property that may be legitimately taxed for governmental purposes. It would be an intolerable burden if the state could not tax any property or call- ing unless at the same time it taxed all property or all callings." Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 562, 22 Sup. Ct. 431, 440, 46 L. Ed. 679; Armour Packing Co. v. Lacey, 200 U. S. 226, 235, 26 Sup. Ct. 232, 234, 50 L. Ed. 451. "We cannot say that treating stocks of corporations as a class subject to special restrictions was unjust discrimination or denial of the full protec- tion of the laws." Otis v. Parker, 187 U. S. 606, 610, 23 Sup. Ct. 168, 170, 47 L. Ed. 323. "The Legislature must decide when and how and for what public purposes a tax shall be levied and must select the subjects of taxation." 1 Cooley on Taxation (3d Ed.) 255. There is no express restriction upon this power in our state Con- stitution and no implied restriction, except bv the primarv guar- anties relating to life, liberty, propertv and du e proces s of law. The same is true of the federal Constitution except as to certain subjects of national interest under the control of Congress, such as imports, patent rights and agencies used to carry the powers of Congress into execution. Subject to these restraints, the Legis- lature has supreme control of the power to tax, and its action, even if arbitrary, discriminating and unreasonable, is binding upon all 312 POWER OP TAXATION persons and property within the boundaries of the state. The state retained all the power of legislation that it did not part with in adopting the federal Constitution or consenting to the amend- ment thereof, and subject to that exception, it is as supreme as the British Parliament, which is restrained only by the custom of the realm and the conservatism of the people. Taxes upon the right of succession to property by will and intestate law, on special franchises and upon the sale of intoxicating liquors, are recent instances of the exercise of this power by the state through the selection of special subjects of taxation, involving the exemp- tion of all others, each of which was attacked as in violation of both Constitutions, but all were sustained by the courts. The tariff and internal revenue laws show that the same power of selection has been exercised by Congress, and the federal courts have uniformly upheld it. Indeed, the prototype of the statute be- fore us was an act of Congress passed in 1898, known as the War Revenue Act (Act June 13, 1898, c. 448, 30 Stat. 448 [U. S. Comp. St. 1901, p. 2286]), imposing a stamp tax on sales, transfers and deliveries of stock certificates, which was sustained without dis- sent by the Circuit and Supreme Courts of the United States. United States v. Thomas (C. C.) 115 Fed. 207; Thomas v. United States, 192 U. S. 363, 24 Sup. Ct. 305, 48 L. Ed. 481. A like tax on sales of merchandise, although expressly limited to those made at "any exchange or board of trade," leaving all other sales un- touched, was also sustained, and the declaration made that "a sale at an exchange does form a proper basis for a classification which excludes all sales made elsewhere from taxation." Nicol v. Ames, 173 U. S. 509, 521, 19 Sup. Ct. 522, 527, 43 L. Ed. 786. The lyCgislature has power to classify as it sees fit by imposing a heavy burden on one class of property and no burden at all upon others, the remedy for injudicious action bemg in the hands of the people, not of the courts. Arbitrary selection and discrimination characterize the history of legislation, both state and national, with reference to taxation, yet, when all persons and property in the, same class are treated alike, it has uniformly been sustained both by the state and federal courts. The tax on tobacco, on oleomar- garine and the like is not less arbitrary or discriminating than the tax in question. While a tax upon a particular house, or horse, or the houses or horses of a particular man, or on the sale thereof, would obviously invade a constitutional right, still a tax upon all houses, leaving barns and business buildings untaxed, or upon all horses or the sale thereof, leaving sheep and cows untaxed, how- ever unwise, would be within the power of the Legislature. This is true of a tax on all houses with "more than one chimney," or "with more than one hearthstone," or on all race horses. The power of taxation necessarily involves the right of selection, which is without limitation, provided all persons in the same situation^ CLASSIFICATION FOE TAXATION 313 are treated ali ke and the tax imposed equally upon all property of the class io wnicn it belongs. Matter of McPherson, 104 N. Y. 306, 318, 10 N. E. 685, 58 Am. Rep. 502 ; Matter of Gould's Estate, 156 N. Y. 423, 427, 51 N. E. 287. The equal protection of the laws " only requires the same means and methods to be applied impar- tially to all the constituents of each class, so that the laws shaH operate equally and uniformly upon all persons in similar circum- stances. " Kentucky R. R. Cases, 115 U. S. 321, 337, 6 Sup. Ct. 57, 63, 29 ly. Ed. 414. Or, in other words, all persons must "be treated alike under like circumstances and conditions, both in the priyilege conferred and the liabilities imposed." Magoun v. Il- linois Trust & Savings Bank, 170 U. S. 283, 293, 18 Sup. Ct. 594, 598, 42 L. Ed. 1037 ; Hayes y. Missouri, 120 U. S. 68, 7 Sup. Ct. 350, 30 L. Ed. 578; Barbier y. Connolly, 113 U. S. 27, 32, 5 Sup. Ct. 357, 28 L. Ed. 923. "Let it reach all of a class, either of per- sons or things, it matters not whether those included in it be one or many, or whether they reside in any particular locality or are scattered all oyer the state." 1 Cooley on Taxation (3d Ed.) 260. The tax in question is not imposed upon property, but on the transfer of a certain class of property, extensively bought and sold throughout the state. It does not discriminate between different ' kinds of stocks, taxing the sale of some and leaving others untaxed , but treats all in the class alike." The class includes all sales of certificates issued by any domestic or foreign association, com- pany, or corporation. It is a large and comprehensive class, as is .shown by the revenue produced, which amounts to five or six mil- lions per annum. The sales affected are made chiefly for specula- tion which may have influenced the Legislature in making the selection. The statute ope rates equally and uniformly upon all transfers of the class named when made by any person within the state. All perso ns who sell stocks are treated alike and all parts, of the state are treated alike. It applies with equal force to all sales, whether in the city or country, in exchanges, offices or on the street, by farmers, mechanics, brokers, and others. The classifica- tion violates neither Constitution. Third. It is claimed that the statute is invalid because it fixes the amount of the tax regardless of the value of the certificates sold or of the sum for which they are sold. The tax in question is an excise tax which need not depend upon any principle of valua-. tion or on any notice to the taxpayer. ^ * * When a sale is made the tax follows, and the Legislature had the right to measure it in any way that it saw fit. A tax of two cents on every check, regardless of the amount for which it was drawn, and of five cents, on a written contract, whether it covered a transaction involving hundreds or thousands, may be referred to as examples of what has been done without serious question in the imposition of excise taxes. A poll tax does not depend upon the income or earning 314 POWER OP TAXATION capacity of the persons subject to it. A tax on carriages, guns, and watciies does not rest on the value of the subjects taxed. They are counted, not appraised. Hylton v. United States, 3 Dall. (U. S.) 171, 1 L. Ed. 556; Bell's Gap R. R. Co. v. Pennsylvania, 134 U. S. 232, 237, 10 Sup. Ct. 533, 33 L. Ed. 892. The same is true of an excise tax on legal process-, domestic animals, avocations, and the like of which there have been many instances during the his- tory of the nation and the different states. Such powers of taxa- tion, as was said in a late case, "have admittedly belonged to state and nation from the foundation of the government." Knowlton v. Moore, 178 U. S. 41, 60, 20 Sup. Ct. 747, 755, 44 U Ed. 969. * * * Convenience in doing business, the slight cost of collection and the necessity of preventing evasion are important considerations in laying an excise tax and the rule of counting rather than valuing; is almost universally adopted, so that the citizen may know at once the amount of the tax and pay it by affixing the stamps re- quired, which are permanent evidence of the sum paid. The stat- ute itself in all such cases, as well as in the case under considera- tion, apportions the tax and the power of apportionment is part of the power of taxation. As was said by this court many years ago: "The power of taxing and the power of apportioning taxa- tion are identical and inseparable. Taxes cannot be laid without apportionment, and the power of apportionment is, therefore, un- limited, unless it be restrained as a part of the power of taxation. There is not, and since the original organization of the state gov- ernment, there Ijas not been any such constitutional limitation or restraint." People ex rel. Griffin v. Mayor, etc., of Brooklyn, 4 N. Y. 419, 427, 55 Am. Dec. 266. The highest federal court sus- tained without hesitation an assessment upon the nominal or face value of bonds instead of upon their actual value, and also declared that absence of notice to the owners of the bonds was not a talking of the bondholder's property without due process of law. Bell's Gap R. R. Co. v. Pennsylvania, 134 U. S. 232, 10 Sup. Ct. 533, 33 L. Ed. 892; Jennings v. Coal Ridge Improvement & Coal Co., 147 U. 'S. 147, 13 Sup. Ct. 282, 37 L. Ed. 116. In the Thomas Case, precisely as in the case before us, the tax was measured by "each hundred dollars of face value or fraction thereof." As our Legislature has all the power of legislation with reference to taxa- tion that the state has, of necessity it has as much power to classi- fy and measure as belongs to Congress. Hence, this point, as well as the last preceding, was involved and decided in the Thomas Case even if no expression of consideration appears in the opin- ions. United States v. Thomas (C. C.) 115 Fed. 207; Thomas v. United States, 192 U. S. 363, 24 Sup. Ct. 305, 48 I,. Ed. 481. We think that the apportionment, even when so unequal in result as it was in the two sales described in the affidavit of the complain- CLASSIFICATION FOE TAXATION 315 ant, is within the exclusive control of the Legislature, with no power in the courts to interfere. * * * Order afifirmed.* VILLAGE OF NORWOOD v. BAKER. (Supreme Court of United States, 1898. 172 U. S. 269, 19 Sup. Ct. 187, 43 '^'" L. Ed. 443.) [Appeal from the United States Circuit Court for Southern Dis- trict of Ohio. Ohio cities and villages were empowered by statute to open streets, and to assess such part of the cost thereof as they pleased bv the front foot upon property bounding and abutting thereon . A street 300 feet long and 50 feet wide was opened bv the village of Norwood through a large tract of land owned by- Ellen Baker, who, bein^ the sole owner of all abutting property, was required under this statute to pay the whole cost thereof, in- cluding the expenses of condemnation proceedings. Baker ob- tamed an injunction in the above-named Circuit Court against the enforcement of this assessment, as depriving her of due process of law under the fourteenth amendment, and this appeal was taken.] Mr. Justice Harlan. * * * Undoubtedly, abutting owners may be subjected to special assessments to meet the expenses of opening public highways in front of their property; such assess- ments, according to well-established principles, resting upon the ^ ground that special burdens may be imposed for special or peculiar^ 4 "While the Legislature has wide latitude in dassiflcation. its power in that re^rd is not without limitation, for the classification must have some basis, reasonable or unreasonable, other than mere accident, whim, or ca- price. There must be some support of taste, policy, difference of situaQon or 4. the like; some reason for it, even if it is a poor one. While the state can tax some occupations and omit others, can it tax only such members of a calling as have blue eyes or black hair? We have said that it could tax " horses and leave sheep untaxed, but it does not follow that it could tax white • horses and omit all others, or tax the sale of certificates printed on white paper, and not those on yellow or brown. While one class may. be made of horses and another of sheep, or even a class made of race horses, owing to the use made of them, without a shock to common sense, a classification lim- ited to white horses would be so arbitrary as to amount to tyranny, because there would be no semblance of reason for it. A reason might be advanced, although specious and unsound, for taxing Holstein bulls and no others, but could even a sophist argue in favor of taxing Holstein steers and no others, «6ince they are incapable of reproduction? A classification of dealers in ciga- rettes into those selling at wholesale without the state and those selling at retail within the state was sustained on the ground that the two occupations are distinct (Cook v. Marshall County, 196 U. S. 261, 274, 25 Sup. Ct. 233, 49 L. Ed. 471), but could dealers ,in any commodity be classified according to age, size, or complexion? A classification of sales into those made in an exchange and those made elsewhere was sustained in another case, but could exchanges be so classified as to tax only such sales as are made in those carried on in brick buildings? Nicol v. Ames, 173 U. S. 509, 19 Sup. Ot. 522, 43 L. Ed. 786." — People ex rel. Farrington v. Mensching, 187 N. Y. 8, 18, 79 N. E. 884, 10 L. R. A. (N. S.) 625, 10 Ann. Cas. 101 (1907), by Vann, J. 316 POWER OF TAXATION benefits accruing from public improvements. Mobile Co. v. Kim- ball, 102 U. S. 691, 703, 704, 26 L. Ed. 238; Railroad Co. v. De- catur, 147 U. S. 190, 202, 13 Sup. Ct. 293, 37 L. Ed. 132; Bauman V. Ross, 167 U. S. 548, 589, 17 Sup. Ct. 966, 42 L. Ed. 270, and au- thorities there cited. And, according to the weight of judicial authority, the l eg^islature has a larp ; -e discretion in defining the territory tn he deemed specially benefited by a public improve- • ment, and which may be subjected to special assessment to meet the cost nf such itnprnvement. In Williams v. Eggleston, 170 U. , S. 304, 311, 18 Sup. Ct. 619, 42 L. Ed. 1047, where the only question, . as this court stated, was as to the power of the legislature to cast . the burden of a public improyement upon certain towns, which had been judicially determined to be towns benefited by such im- proyement, it was said: "Neither can it be doubted that, if the state constitution does not prohibit, the legislature, speaking gen- erally, may create a new taxing district, determine what territory shall belong to such district, and what property shall be considered as benefited by a proposed improvement." But the power of the legislature in these matters is not unlim- ited. There is a point beyond which the legislative department, even when exerting the power of taxation, may not go, consistently with the citizen's right of property. As already indicated, the principle underlying special assessments to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and, therefore, the owners do not, in fact, pay anything in excess of what they receive by reason of such im- provement. But the guaranties for the protection of private prop- erty would be seriously impaired, if it were established as a rule of constitutional law that the imposition by the legislature upon particular private property of the entire cost of a public improve- • ment, irrespective of any peculiar benefits accruing to the owner from such improvement, could not be questioned by him in the courts of the country. It is one thing for the legislature to pre- scribe it as a general rule that property abutting on a street opened by the public shall be deemed to have been specially benefited by such improvement, and therefore, should specially contribute to the cost incurred by the public. It is quite a different thing to lay it down as an absolute rule that such property, whether it is in fact benefited or not by the opening of the street, may be assessed by the front foot for a fixed sum, representing the whole cost of the improvement, and without any right in the property owner tO' show, when an assessment of that kind is made, or is about to be made, that the sum so fixed is in excess of the benefits received. In our judgment, the exaction from the owner of private pro p- erty ot the cost of a public imprnvement in substantial excess of the special benefits accruing to him is, to the extent of such excess. a takmg, under the guise of taxation, of private property for public CLASSIFICATION FOR TAXATION 317 use without compensatioo . We say "substantial excess," because exact equality of taxation is not always attainable; and for that reason the excess of cost over special benefits, unless it be of a material character, ought not to be regarded by a court of equity, when its aid is invoked to restrain the enforcement of a special assessment. * * * It will not escape observation that if the entire cost incurred by a municipal corporation in condemning land for the purpose of opening or extending a street can be assessed back upon the abut- ting property, without inquiry in any form as to the special ben- efits received by the owner, the result will be more injurious to the owner than if he had been required, in the first instance, to open the street at his own cost, without compensation in respect of the land taken for the street; for, by opening the street at his own cost, he might save at least the expense attending formal proceed- ings of condemnation. It cannot be that any such result is con- sistent with the principles upon which rests the power to make special assessments upon property in order to meet the expense of public improvements in the vicinity of such property. The views we have expressed are supported by other adjudged cases, as well as by reason, and by the principles which must be recognized as essential for the protection of private property against the arbitrary action of government. The importance of the question before us renders it appropriate to refer to some of those cases. In Agens v. Mayor, etc., of Newark, 37 N. J. Law, 416, 420-423, 18 Am. Rep. 729, the question arose as to the validity of an assess- ment of the expenses incurred in repairing the roadbed of a portion of one- of the streets of the city of Newark. The assessment was made in conformity to a statute that undertook to fix, at the mere will of the legislature, the ratio of expense to be put upon the owners of property along the line of the improvement. Chief Jus- tice Beasley, speaking for the court of errors and appeals, said : "The doctrine that it is competent for the legislature to direct the expense of opening, paving, or improving a public street, or at least some part of such expense, to be put as a special burthen on the property in the neighborhood of such improvement, cannot, at this day, be drawn in question. There is nothing in the consti- tution of this state that requires that all property in the state, or in any particular subdivision of the state, must be embraced in the operation of every law levying a tax. That the effect of such laws may not extend beyond certain prescribed limits is perfectly indisputable. It is upon this principle that taxes raised in coun- ties, townships, and cities are vindicated. But, while it is thus clear that the burthen of a particular tax may be placed exclusive- ly on any political district to whose benefit such tax is to inure, it seems to me it is equally clear that, when such burthen is sought 318 POWER OF TAXATION to be imposed on particular lands, not in themselves constituting a political subdivision of the state, we at once approach the line which is the boundary between acts of taxation and acts of confis- cation. I think it impossible to assert, with the least show of rea- son, that the legislative right to select the subject of taxation is not a limited right. For it would seem much more in accordance with correct theory to maintain that the power of selection of the property to be taxed cannot be contracted to narrower bounds than the political district within which it is to operate, than that such power is entirely illimitable. If such prerogative has no trammel or circumscription, then it follows that the entire burthen of one of these public improvements can be placed, by the force of the legislative will, on the property of a few enumerated citizens, or even on that of a single citizen. In a government in which the legislative power is not omnipotent, and in which it is a fundamen- tal axiom that private property cannot be taken without just com- pensation, the existence of an unlimited right in the lawmaking power to concentrate the burthen of tax upon specified property does not exist. If a statute should direct a certain street in a city to be paved, and the expense of such paving to be assessed on the houses standmg at the four corners of such street, this would not^ be an act of taxation, and it is presumed that no one would assert It to be such. If this cannot be maintained, then it follows that it is conceded that the legislative power in question is not completely arbitrary . It has its limit^ and the nnlv inquiry is where that limit js to be placed." After referring to a former decision of the same court, in which it was said that special assessments could be sustained upon the theory that the party assessed was locally and peculiarly benefited above the ordinary benefit which as one of the community he re- ceived in all public improvements, the opinion proceeds^ "It fol- lows, then, that these local assessments are justifiable on the ground above, — that the locality is especially to be benefited by the outlay of the money to be raised. Unless this is the case, no reason can be assigned why the tax is not general. An assessmerit laid on property -along a city street for an improvement made in another street, in a distant part of the same city, would be univerT sally condemned, both oh moral and legal grounds. And yet there is no difference between such an extortion and the requisition upon a landowner to pay for a public improvement over and above the exceptive benefit received by him. It is true that the power of taxing is one of the high and indispensable prerogatives of the gov- ernment, and it can be only in cases free from all doubt that its exercise can be declared by the courts to be illegal. But such a case, if it can ever arise, is certainly presented when a property is specified, out of which a public improvement is to be paid for CLASSIFICATION FOB TAXATION 319 in excess of the value specially imparted to it by such improve- ment. As to such excess, I cannot distinguish an act exacting its payment from the exercise of the power of eminent domain. In case of taxation the citizen pays his quota of the common burthen. When his land is sequestered for the public use, he contributes more than such quota, and this is the distinction between the effect of the exercise of the taxing power and that of eminent domain. When, then, the overplus beyond benefits from these local im- provements is laid upon a few landowners, such citizens, with re- spect to such overplus, are required to defray more than their share of the public outlay, and the coercive act is not within the proper scope of the power to tax." * * * The present case is not one in which (as in most of the cases brought to enjoin the collection of taxes or the. enforcement of special assessments) it can be plainly or clearly seen, from the showing made by the pleadings, that a particular amount, if no more, is due from the plaintiff, and which amount should be paid or tendered before equity would interfere. It is rather a case in which the entire assessment is illegal. In such a case it was not necessary to tender, as a condition of relief being granted to the plaintiff, any sum, as representing what she supposed, or might guess, or was willing to concede, was the excess of cost over any benefits accruing to the property. She was entitled, without mak- ing such a tender, to ask a court of equity to enjoin the enforce- ment of a rule of assessment that infringed upon her constitutional rights. * * * [Parsons v. Dist. of Columbia, 170 U. S. 45, 18 Sup. Ct. 521, 42 L. Ed. 943, and Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921, 31 L,. Ed. 763, are here discussed and held not inconsistent with this opinion.] We have considered the question presented for our determina- tion with reference only to the provisions of the national Constitu- tion. But we are also of opinion that, under any view of that question different from the one taken in this opinion, the require- ment ot the Constitution of Ohio that compensation be made for private property taken for public use, and that such compensatiori must be assessed "without deduction for benefits to anv property of the owner," would be of little practical value, if, upon the open- ing ot a public street through private property, the abutting prop- erty of the owner, whose land was taken for the street, can, under legislative authority, be assessed, not only for such amount as will be equal to the benefits received, but for such additional amount as will meet the excess of expense over benefits. The judgment of the circuit court must be affirmed, upon the ground that the assessment against the plaintiff's abutting prop- erty was under a rule which excluded any inquiry as to special benefits, and the necessary operation of which was, to the extent of the excess of the cost of opening the street in question over any 320 POWER OP TAXATION special benefits accruing to the abutting property therefrom, to take private property for public use without compensation. It is so ordered. Mr. Justice BrEwEe, dissenting. * * * The suggestion that such an assessment be declared void, because the rule of assess- ment is erroneous, implies that it is prima facie erroneous to cast upon property abutting upon an improvement the cost thereof; that a legislative act casting upon such abutting property the full cost of an improvement is prima facie void; that, being prima facie void, the owner of any property so abutting on the improve- ment may obtain a decree of a court of equity canceling in toto the assessment, without denying that his property is benefited by the improvement, or paying, or offering to pay, or expressing a will- ingness to pay, any sum which may be a legitimate charge upon *the property for the value of the benefit to it by such improvement. In this case no tender was made of any sum, no offer to pay the amount properly chargeable for benefits, there was no allegation or testimony that the legislative judgment as to the area benefited, or the amount of the benefit, was incorrect, or that other prop- erty was also benefited; and the opinion goes to the extent of holding that the legislative determination is not only not conclu- sive, but also is not even prima facie sufficient, and that in all cases there must be a judicial inquiry as to the area in fact ben- efited. We have often held the contrary, and, I think, should ad- here to those oft-repeated rulings. [Gray and Shiras, J J., also dissented.] KELLY V. PITTSBURGH. (Supreme Court of United States, 1881. 104 V. S. 78, 26 L. Ed. 658.) [Error to the Supreme Court of Pennsylvania.' By authority of the legislature, the township of Collins in Alleghany countv was annexed to the city of Pittsburgh. Kelly owned 80 acres of land therein, which was assessed at a very high rate for the municipal taxes of the city, An injunction against the collection of such taxes was denied him in the lower courts, and the denial affirmed by the state Supreme Court. Other facts appear in the opinion.] Mr. Justice MiIvLEr. * * * The main argument for the plaintiff in error — the only one to which we can Usten — is that the proceeding in regard to the taxes assessed on his land deprives him of his property without due process of law. It is not asserted that in the methods by which the value of his land was ascertained for the purpose of this taxation there was any departure from the usual modes of assessment, nor that the man- ner of apportioning and collecting the tax was unusual or material- CLASSIFICATION FOR TAXATION 321 ly different from that in force in all communities where land is subject to taxation. In these respects there is no charge that the method pursued is not due process of law. Taxes have not, as a general rule, in this country since its independence, nor in England before that time, been collected by regular judicial proceedings. The necessities of government, the nature of the duty to be per- formed, and the customary usages of the people, have established a different procedure, which in regard to that matter, is, and al- ways has been, due process of law. The tax in question was as- sessed, and the proper officers were proceeding to collect it in this way. The distinct ground on which this provision of the Constitution of the United States is invoked is. that as the land in question is, and always has been, used as farm land, for agricultural use onfyT subjecting it to taxation for ordinary citv purposes deprives the plamtiff in error of his property without due process of law . It is alleged, and probably with truth, that the estimate of the value of the land for taxation is very greatly in excess of its true value. Whether this be true or not we cannot here inquire. We have so often decided that we cannot review and correct the errors and mistakes of the state tribunals on that subject, that it is only neces- sary to refer to those decisions without a restatement of the argu- ment on which they rest. State Railroad Tax Cases, 92 U. S. 575, 23 h. Ed. 663 ; Kennard v. Louisiana, 92 U. S. 480, 23 L. Ed. 478 ; Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616 ; Kirtland v. Hotchkiss, 100 U. S. 491, 25 L. Ed. 558 ; Missouri v. Lewis, 101 U. S. 22, 25 L. Ed. 989; National Bank v. Kimball, 103 U. S. 732, 26 L. Ed. 469. But, passing from the question of the administration of the law of Pennsylvania by her authorities, the argument is, that in the matter already mentioned the law itself is in conflict with the Con- stitution. It is not denied that the legislature could rightfully en- large the boundary of the city of Pittsburgh so as to include the land.. If this power were denied, we are unable to see how such denial could be sustained. What portion of a state shall be with- in the limits of a city and be governed by its authorities and its laws has always been considered to be a proper subject of legisla- tion. How thickly or how sparsely the territory within a city must be settled is one of the matters within legislative discretion. Whether territory shall be governed for local purposes by a coun- ty, a city, or a township organization, is one of the most usual and ordinary subjects of state legislation. It is urged, hnwpvpr , with much force, that land of this char - acter, which its owner has not laid off into town lots, but insists on using for agricultural purposes, and through which no streets are run or used, cannot be, even by the legislature, subjected to the Hall Cases Const.L. — ^21 323 POWER OP TAXATION taxes of a city. — the w ater tax, the gas tax, the street tax, and oth- ers of similar character, 'i'tie reason tor this is said to be that such taxes are for the benefit of those in a city who own property within the limits of such improvements, and who use or might use them if they choose, while he reaps no such benefit. Cases are cited from the higher courts of Kentucky and Iowa where this principle is asserted, and where those courts have held that farm lands in a city are not subject to the ordinary city taxes. It is no part of our duty to inquire into the grounds on which those courts have so decided. They are questions which arise between the citi- zens of those states and their own city authorities, and afford no rule for construing the Constitution of the United States. We are also referred to the case of L,oan Association v. Topeka, 20 Wall. 655, 22 L,. Ed. 455, which asserts the doctrine that taxation, though sanctioned by state statutes, if it be [not] for a public use, is an unauthorized taking of private property. We are unable to see that the taxes levied on this property were not for a public use. Taxes for schools, for the support of the poor, for protection agamst fire, and for water-works, are the specific taxes found in the list complained of. We think it will not be denied by any one that these are public purposes in which the whole community have an interest, and for which, by common consent, property owners everywhere in this country are taxed. There are items styled city tax and city buildings, which, in the absence of any explanation, we must suppose to be for the good government of the city, and for the construction of such buildings as are necessary for munici- pal purposes. Surely these are all public purposes; and the mon- ey so to be raised is for public use. No item of the tax assessed against the plaintiff in error is pointedout as intended for any oth- er than a public use. It may be true that he does not receive the same amount of bene- fit from some or any of these taxes as do citizens living in the heart ot the city.. It probably is true, from the evidence found in this record, that his tax bears a very unjust relation to the benefits received as compared with its amount. But who can adjust with precise accuracy the amount which each individual in an organized civil community shall contribute to sustain it, or can insure in this respect absolute equality of burdens, and fairness in their distribu- tion among those who must bear them? We cannot say judicially that Kelly received no benefit from the city organization. These streets, if they do not penetrate his farm, lead to it. The water- works will probably reach him some day, and may be near enough to him now to serve him on some occasion. The schools may re- ceive his children, and in this regard he can be in no worse condi- tion than those living in the city who have no children, and yet who pay for the support of the schools. Every man in a county, a town, a city, or a state is deeply interested in the education of the CLASSIFICATION FOB TAXATION 323 children of the community, because his peace and quiet, his happi- ness and prosperity, are largely dependent upon the intelligence and moral training which it is the object of public schools to sup- ply to the children of his neighbors and associates, if he has none himself. The officers whose duty it is to punish and prevent crime are paid out of the taxes. Has he no interest in maintaining them, because he lives further from the court-house and police-station than some others? Clearly, \however, these are matters of detail within the discre- tion, and therefore the power, of the law-making body within whose jurisdiction the parties live. This court cannot say in such cases, however great the hardship or unequal the burden, that the tax collected for such purposes is taking the property of the tax- payer without due process of law. * * * Judgment affirmed. 321 BIGHT OF EMINBNI DOMAIN RIGHT OF EMINENT DOMAIN I. In General ^ FAIRCHILD V. ST. PAUI.. (Supreme Court of Minnesota, 1891. 46 Minn. 540, 49 N. W. 325.) [Appeal by plaintiffs from a judgment of the Ramsey County District Court. The facts appear in the opinion.] Mitchell, J. This was an action to recover damages for certain alleged acts of trespass in removing stone from the premises of the plaintiffs. The defendant justified the acts on the ground that it had acquired a title to the land for the purposes of a public street. The case was tried upon the theory that its decision depended on the question whether or not the city of St. Paul had acquired a title in fee, and by stipulation it was agreed that the court should deter- mine two questions, viz. : First, had the defendant the power and right to condemn the fee of land for street purposes? and, if so, second, had the defendant duly condemned, for such purposes, the fee of the land in question? 1. The main contention of the plaintiff s'. upon the argument was, to use their own language, "that the public exigencies do not de-- mand the taking and condemnation of the absolute fee-simple title to land for the purpose of highways and streets; that the public wants are supplied by the enjoyment of an easement; and that any act of the legislature which assumes and attempts to authorize a municipality to take and condemn the absolute fee-simple title to land for such purposes is unconstitutional and void." More briefly stated, the proposition is that the legislature cannot authorize the taking of any greater estate in land for public use than is neces- sary; that an estate in fee is not necessary for the purposes of a street; therefore the legislature cannot authorize the taking of such an estate for such purposes. While we have given the ques- tion the careful examination due to the elaborate brief and very earnest argument of the learned counsel, yet it has never seemed to us that there was anything in his contention. In this case it must be conceded that the legislature, if it had the power to do so, has given the city of St. Paul authority to condemn an estate in fee for street purposes; the language of the charter being : "In all cases the land taken and condemned in the manner aforesaid (for streets) shall be vested absolutelv in the citv nf St. Paul in fee-simple." Mun. Code 1884, § 153 (Sp. Ivaws 1874, p. 1 For discussion of principles, see Black, Const. Law (Sd Ed.) §§ 172-175, 180. IN GENERAL 325 59, § 17). There is nothing better settled than that, the power of eminent domain being an incident of sovereignty, the time, man- ner, and occasion of its exercise are wholly in the control and dis- cretion of the legislature, except as restrained by the Constitution. It rests in the wisdom of the legislature to determine when and in what manner the public necessities require its exercise; and with the reasonableness of the exercise of that discretion the courts will not interfere. Wilkin v. First Div., etc., R. Co., 16 Minn. 271 (Gil. 244) ; Weir v. St. Paul, S. & T. F. R. Co., 18 Minn. 155 (Gil. 139). As the legislature is the sole judge of the public necessity which requires or renders expedient the exercise of the power of eminent domain, so it is the exclusive judge of the amount of land, and of the estate' in land, which the public end to be subserved requires shall be taken. The only limitation — at least, the only one applica- ble to a case like the present — which the Constitution imposes up- on the exercise of the right of eminent domain by the legislature is that private property shall not be taken for public use without just compensation therefor first paid or secured. Of course, there is the further limitation, necessarily implied, that the use shall be a public one ; upon which question the determination of the legisla- ture is not conclusive upon the courts. But, when the use is pub- lic, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. Consequently, if in the legislative judgment it is expedient to do so, it has the pow- er expressly to authorize a municipal corporation compulsorily to acquire the absolute fee-simple to lands of private persons con- demned for street or any other public purpose. The authorities are so numerous and uniform to this effect that an extended citation of them is unnecessary. See, however. Dill. Mun. Corp. § 589; Cool- ey. Const. Lim. 688; Lewis, Em. Dom. 277; Elliott, Roads & S. 172; Mills, Em. Dom. §§ 50, 51; Boom Co. v. Patterson, 98 U. S. 403, 406, 25 L. Ed. 206; Sweet v. Buffalo, etc., Ry. Co., 79 N. Y. 293, 299. It is often laid down as the law that the taking of property must always be limited to the necessity of the case, and, consequently, no more can be appropriated in any instance than is needed for the particular use for which the appropriation is made. But it will be found that this is almost invariably said, not in discussing the ex- tent of the power of the legislature, but with reference to the construction of statutes granting authority to exercise the right of eminent domain, and where the authority to take a certain quan- tity of land or a particular estate therein depended, not upon an express grant of power to do so, but upon the existence of an al- leged necessity, from which the disputed power is to be implied. This distinction is clearly brought out by Justice Cornell in Mil- waukee & St. Paul Ry. Co. v. City of Faribault, 23 Minn. 167. Up- on the principle that statutes conferring compulsory powers to take 326 RIGHT OF EMINENT DOMAIN private property are to be strictly construed, it follows that, when the estate or interest to be taken is not defined by the legislature, only such an estate or interest can be taken as is necessary to ac- complish the purpose in view, and, when an easenjent is sufficient, no greater estate can be taken.- It is on this principle that where the legislature has authorized the taking of land for the purposes of streets, without defining the estate that may be taken, or ex- pressly authorizing the taking of the fee, it is held that only an easement can be taken. This is construed, under such statutes, to be the extent of the grant of authority; but no well-considered case can be found which holds that the legislature might not au- thorize the taking of the fee, if it deemed it expedient. * * * Judgment affirmed. LONG ISLAND WATER SUPPLY CO. v. BROOKLYN. (Supreme Court of United States, 1897. 166 U. S. 685, 17 Sup. Ct. 718, 41 L. Ed. 1165.) [Error to Supreme Court of New York. The Long Island Wa- ter Supply Company resisted the taking of its property, franchises, and contracts by eminent domain by the city of Brooklyn, for the reasons stated in the opinion below. The Court of Appeals upheld the judgment of the lower courts in favor of the condemnation, and the state Supreme Court entered final judgment against the com- pany, from which this writ of error was taken.] .Mr. Justice BrewER. * * * The contention of plaintiff in error is that the proceedings had under the statute which resulted in the judgment of condemnation violate section 10, art. 1, of the Constitution of the United States, which forbids any state to pass a law impairing the obligation of contracts, and were not "due process of law," as required by the fourteenth amendment. With reference to the first part of this contention, it is said that in 1881 the town of New Lots made a contract with the water- supply company by which for each and every year during the term of 25 years it covenanted to pay to the company so much per hydrant for hydrants furnished and supplied by it; that the act of annexation continued the burden of this obligation upon the ter- ritory within the limits of the town, although thereafter the town, as a separate municipality, ceased to exist, and the territory be- came simply a ward of the city of Brooklyn; that the condemna- tion proceedings destroyed this contract, and released the terri- tory from any obligation to pay the stipulated hydrant rental ; that a state or municipality cannot do indirectly what it cannot do di- rectly; that, as the municipality could not, by any direct act, re- lease itself from any of the obligations of its contract, it could not accomplish the same result by proceedings in condemnation. IN GENEEAL * 327 We cannot yield our assent to this contention. All private prop- erty is held subject to the demands of a public use. The constitu- tional guaranty of just compensation is not a limitation of the power to take, but only a condition of its exercise. Whenever pub- lic uses require, the government may appropriate any private prop- erty on the payment of just compensation. That the supply of wa- ter to a city is a public purpose cannot be doubted, and hence the condemnation of a water-supply system must be recognized as within the unquestioned limits of the power of eminent domain. It matters not to whom the water-supply system belongs, individ- ual or corporation, or what franchises are connected with it; all may be taken for public uses upon payment of just compensation. It is not disputed by counsel that, were there no contract between the company and the town, the waterworks might be taken by condemnation. And so the contention is, practically, that the ex- istence of the contract withdraws the property, during the life of the contract, from the scope of the power of eminent domain, be- cause taking the tangible property will prevent the company from supplying water, and therefore operate to relieve the town from the payment of hydrant rentals. In other words, the prohibition against a law impairing the obligation of contracts stays the power of eminent domain in respect to property which otherwise could be taken. by it. Such a decision would be far-reaching in its efifects. There is probably no water company in the land which has not some sub- sisting contract with a municipality which it supplies, and within which its works are located; and a ruling that all those properties are beyond the reach of the power of eminent domain during the existence of those contracts is one which, to say the least, would require careful consideration before receiving judicial sanction. The fact that this particular contract is for the payment of money for hydrant rental is not vital. Every contract is equally within the protecting reach of the prohibitory clause of the Constitution. The charter of a corporation is a, contract, and its obligations can- not be impaired. So it would seem to follow, if plaintiff in error's contention is sound, that the franchises of a corporation could not be taken by condemnation, because thereby the contract created by the charter is impaired. The privileges granted to the corporation • are taken away, and the obligation of the corporation to perform is also destroyed. * * * The true view is that the condemnation proceedings do not im- pair the contract, do not break its obligations, but appropriate it, as they do the tangible property of the company, to public uses. * * * The case of West River Bridge Co. v. Dix, 6 How. 507, 12 L. Ed. 535, is in point. * * * [This involved the condemna- tion of a toll bridge with an exclusive franchise and its conversion into a free bridge by the state of Vermont. The bridge company 328 RIGHT OF EMINENT DOMAIN took a writ of error to the federal Supreme Court, alleging the ob- ligation of its franchise contract was impaired.] This contention was overruled, and in the course of the opinion it was observed : "No state, it is declared, shall pass a law impairing the obliga- tion of contracts; yet, with this concession constantly yielded, it cannot be justly disputed that in every political sovereign com- munity there inheres necessarily the right and the duty of guard- ing its own existence, and of protecting and promoting the inter- ests and welfare of the community at large. This power and this duty are to be exerted not only in the highest acts of sovereignty, and in the external relations of governments; they reach and com- prehend likewise the interior polity and relations of social life, which should be regulated with reference to the advantage of the . whole society. This power, denominated the 'eminent domain of the state,' is, as its name imports, paramount to all private rights vested under the government, and these last are, by necessary im- plication, held in subordination to this power, and must yield in every instance to its proper exercise. * * * Now, it is unde- niable that the investment of property in the citizen by the govern- ment, whether made for a pecuniary consideration or founded on conditions of civil or political duty, is a contract between the state, or the government acting as its agent, and the grantee; and both the parties thereto are. bound in good faith to fulfill it. But into all contracts, whe|;her made between states and individuals or be- tween individuals only, there enter conditions which arise, not out of the literal terms of the contract itself. They are superinduced by the pre-existing and higher authority of the laws of nature, or nations, or of the community to which the parties belong. They are always presumed, and must be presumed, to be known and rec- ognized by all, are binding upon all, and need never, therefore, be carried into express stipulation, for this could add nothing to their force. Every contract is made in subordination to them, and must yield to their control, as conditions inherent and paramount, wher- ever a necessity for their execution shall occur. Such a condition is the right of eminent domain. This right does not operate to im- pair the contract affected by it, but recognizes its obligation in the fullest extent, claiming only the fulfillment of an essential and in- separable condition. * * * A distinction has been attempted, in argument, between the power of a government to appropriate for public uses property which is corporeal, or may be said to be in being, and the like power in the government to resume or extin- guish a franchise. The distinction thus attempted we regard as a refinement which has no foundation in reason, and one that, in truth, avoids the true legal or constitutional question in these causes ; namely, that of the right in private persons, in the use or enjoyment of their private property, to control, and actually to prohibit, the power and duty of the government to advance and PUBLIC PUEPOSB 329 protect the general good. We are aware of nothing peculiar to a franchise which can class it higher, or render it more sacred, than other property. A franchise is property, and nothing more. It is incorporeal property, and is so defined by Justice Blackstone,,when treating, in his second volume (chapter 3, p. 20), of the Rights of Things." See, also, Richmond, F. & P. R. Co. v. Louisa R. Co., 13 How. 71, 83, 14 L. Ed. 55 ; Boston & L. R. Corp. v. Salem & L,. R. Co., 2 Gray (Mass.) 1, 35, 36. * * * Judgment alifirmed. II. Public Purpose* TALBOT V. HUDSON. (Supreme Judicial Court of Massachusetts, 1860. 16 Gray, 417.) [Hearing, upon a bill and answer, of a motion to dissolve a tem- porary injunction issued ex parte by a single judge upon the filing of the bill. The pleadings disclosed that the plaintiflfs owned valu- able mill, dam, and water rights upon the Concord river, and had erected and were operating by the water power thereof large and valuable mills, and had acquired a legal right to flood certain tracts of territory by the backwater from their dams ; that a statute had authorized commissioners to reduce the height of said dams 33 inches, with a view to draining extensive meadows along the Con- cord and Sudbury rivers now overflowed by said backwater, which would destroy or render almost valueless said water power, dams, and mills, though compensation was to be made therefor; and that defendants, as such commissioners, were proposing to act under this statute. Defendants also demurred to the bill, which alleged the unconstitutionality of the statute. Other facts appear in the opinion.] BiGELOW, C. J. * * * It is quite obvious that the first step in this inquiry is to ascertain, if we can, under what head or branch of legislative power or authority the act in question falls. The in- tention of the legislature in this respect must be gathered mainly from the terms of the statute. There is no express declaration of the objects contemplated by it, but they are left to implication. Looking to the general structure of the act and the nature of its provisions, we cannot doubt that it was intended as an exercise of the right of eminent domain. It is similar to other legislative acts which authorize the taking of private property for a public use. It 2 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 177-179. 330 RIGHT OF EMINENT DOMAIN expressly authorizes the taking and removal of the dam by a board of public officers appointed for this specific purpose ; it provides the same remedy in behalf of persons injured by such taking and re- moval as is given in case of damages occasioned by the laying out of highways ; it affords to the party, aggrieved by the award of the commissioners a trial by jury, and confers on this court the power to hear and determine all questions of law arising in the proceed- ings, and to set aside the verdict of the jury for sufficient cause. These provisions are inconsistent with the idea that the act was framed for the purpose of exercising the general police or superin- tending power over private property, which is vested in the leg- islature, or in order to prohibit a use of it which was deemed in- jurious to or inconsistent with the rights and interests of the public. If such were the object of the statute, there would be no necessity for the appointment of commissioners to take down and remove the dam, or for the provisions making compensation to those injured in their property thereby. Such enactments would be unusual in a statute intended only for a prohibition and re- straint upon the appropriation or use of private property by its owners; but are the necessary and ordinary provisions when the legislature intend to exercise the right to take it for a supposed public use. Thacher v. Dartmouth Bridge, 18 Pick. 501 ; Common- wealth V. Tewksbury, 11 Mete. 55. Such being the manifest design of the legislature in passing, the act in question, we are brought directly to a consideration of the objections urged by the plaintiffs against its validity. The first and principal one is that it violates the tenth article of the Dec- laration of Rights, because it authorizes the taking and appropria- tion of private prpoerty to a use which is not of a public nature. In considering this objection, we are met in the outset with the suggestion, that it is the exclusive province of the legislature to determine whether the purpose or object for which property is taken is a public use, and that it is not within the province of the judicial department of the government to revise or control the will or judgment of the legislature upon the subject, when expressed in the form of a legal enactment. But this position seems to us to be obviously untenable. The provision in the Constitution, that no part of the property of an individual can be taken from him or applied to public uses without his consent or that of the legisla- ture, and that when it is appropriated to public uses he shall receive a reasonable compensation therefor, necessarily implies that it can be taken only for such a use, and is equivalent to a declaration that it cannot be taken and appropriated to a purpose in its nature pri- vate, or for the benefit of a few individuals. In this view, it is a direct and positive limitation upon the exercise of legislative pow- er, and any act which goes beyond this limitation must be uncon- stitutional and void. No one can doubt that if the legislature PUBLIC PURPOSE 331 should by statute take the property of A and transfer it to B, it would transcend its constitutional power. In all cases, therefore, where this power is exercised, it necessarily involves an inquiry into the rightful authority of the legislature under the organic law. * * * But it is to be borne in mind, that in determining the question whether a statute is within the legitimate sphere of legislative ac- tion, it is the duty of courts to make all reasonable presumptions in favor of its validity. * * * Jn many cases, there can be no difficulty in determining whether an appropriation of property is for a public or private use. If land is taken for a fort, a canal, or a highway, it would clearly fall within the first class ; if it is trans- ferred from one person to another or to several persons solely for their peculiar benefit and advantage, it would as clearly come with- in the second class. But there are intermediate cases where public and private interests are blended together, in which it becomes more difficult to decide within which of the two classes they may be properly said to fall. There is no fixed rule or standard by which such cases can be tried and determined. Each must neces- sarily depend upon its own peculiar circumstances. In the pres- ent case there can be no doubt that every owner of meadow land bordering on these rivers will be directly benefited to a greater or less extent by the reduction of the height of the plaintiffs' dam. The act is therefore in a certain sense for a private use, and enures directly to the individual advantage of such owners. But this is by no means a decisive test of its validity. Many enterprises of the highest public utility are productive of great and immediate benefits to individuals. A railroad or canal may largely enhance the value of private property situated at or near its termini; but it is not for that reason any less a public work, for the construc- tion of which private property may well be taken. We are there- fore to look further into the probable operation and efifect of the statute in question, in order to ascertain whether some public in- terest or benefit may not be likely to accrue from the execution of the power conferred by it upon the defendants. If any such can be found, then we are bound to, suppose that the act was passed in order to efifect it. We are not to judge of the wisdom or expe- diency of exercising the power to accomplish the object. The leg- islature are the sole and exclusive judges whether the exigency exists which calls on them to exercise their authority to take pri- vate property. If a use in its nature public can be subserved by the appropriation of a portion of the plaintiffs' dam in the manner provided by this act, it was clearly within the constitutional au- thority of the legislature to take it, and in the absence of any declared purpose, we must assume that it was taken for such legit- imate and authorized use. 332 EIGHT OP EMINENT DOMAIN The geographical features of the Concord and Sudbury rivers are properly within the judicial cognizance of the court. They are stated in detail in the opinion of the court in Sudbury Meadows v. Middlesex Canal, 23 Pick. 45. From that case and an inspection of the map, it appears that these two rivers, forming parts of the same stream, pass for a distance exceeding twenty miles through a tract of country, forming their banks or borders, consisting chiefly of meadows comprising many hundreds of acres; that throughout this extent the waters are very sluggish, having only a slight fall, until they reach the plaintiffs' dam. It might well be supposed that the necessary effect of an obstruction in a stream of this nature would be to cause the waters to flow back in the bed of the rivers, to fill up their courses or channels, to overflow their sides, and to inundate to a great extent the adjacent land, which is naturally low and level, and thus to render it unfit for agricultural purposes and deprive it of its capacity to produce any profitable or useful vegetation. The improvement of so large a territory, situated in several different towns and owned by a great number of persons, by draining off the water and thereby render- ing the land suitable for tillage, which could not otherwise be use- fully improved at all, would seem, to come fairly within the scope of legislative action, and not to be so devoid of all public utility and advantage as to make it the duty of this court to pronounce a statute, which might well be designed to effect such a purpose, in- valid and unconstitutional. The act would stand on a different ground, if it appeared that only a very few individuals or a small adjacent territory were to be benefited by the taking of private property. But such is not the case here. The advantages which may result from the removal of the obstruction caused by the plaintiffs' dam are not local in their nature, nor intended to be confined to a single neighborhopd. They are designed to embrace a large section of land lying in one of the most populous and highly cultivated counties in the state, and by increasing the productive capacity of the soil to confer a benefit, not only on the owners of the meadows, but on all those who will receive the incidental ad- vantage arising from the development of the agricultural resources of so extensive a territory. It has never been deemed essential that the entire community or any considerable portion of it should directly enjoy or partici- pate in an improvement or enterprise, in order to constitute a public use, within the true meaning of these words as used in the Constitution. Such an interpretation would greatly narrow and cripple the authority of the legislature, so as to deprive it of the power of exerting a material and beneficial iiifluence on the wel- fare and prosperity of the state. In a broad and comprehensive view, such as has been heretofore taken of the construction of this clause of the Declaration of Rights, everything which tends to PUBLIC PURPOSE 333 enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhab- itants of a section of the state, or which leads to the growth of towns and creation of new sources for the employment of private capital and labor, indirectly contributes to the general welfare and to the prosperity of the whole community. It is on this principle, that many of the statutes of this common- wealth by which private property has been heretofore taken and appropriated to a supposed public use are founded. Such legisla- tion has the sanction of precedents, coeval with the origin and adoption of the Constitution, and the principle has been so often recognized and approved as legitimate and constitutional that it has become incorporated into our jurisprudence. One of the earli- est and most familiar instances of the exercise of such power under the Constitution is to be found in St. 1795, c. 74, for the support and regulation of mills. By this statute the owner of a mill had power, for the purpose of raising a head of water to operate his mill, to overflow the land of proprietors above and thereby to take a permanent easement in the soil of another, to the entire de- struction of its beneficial use by him, on paying a suitable compen- sation therefor. Under the right thus conferred, the more direct benefit was to the owner of the mill only ; private property was in effect taken and transferred from one individual for the benefit of another; and the only public use, which was thereby subserved, was the indirect benefit received by the community by the erection of mills for the convenience of the neighborhood, and the general advantage which accrued to trade and agriculture by increasing the facilities for traffic and the consumption of the products of the soil. Such was the purpose of this statute, as appears from the pre- ambles to the provincial Acts of 8 and 13 Anne, from which the statute of 1795 was substantially copied. It is thereby declared that the building of mills has been "serviceable for the public good and benefit of the town or considerable neighborhood." Anc. Chart. 388, 404. In like manner, and for similar purposes, acts of incorporation have been granted to individuals with authority to create large mill powers for manufacturing establishments, by taking private prop- erty, even to the extent of destroying other mills and water priv- ileges on the same stream. Boston & Roxbury Mill Dam v. New- man, 12 Pick. 467, 23 Am. Dec. 622 ; Hazen v. Essex Co., 12 Cush. 478; Commonwealth v, Essex Co., 13 Gray, 249. The main and direct object of these acts is to confer a benefit on private stock- holders who are willing to embark their skill and capital in the outlay necessary to carry forward enterprises which indirectly tend to the prosperity and welfare of the community. And it is be- cause they thus lead incidentally to the promotion of "one of the great public industrial pursuits of the commonwealth," that they 334 RIGHT OF EMINENT DOMAIN have been heretofore sanctioned by this court, as well as by the legislature, as being a legitimate exercise of the right of eminent domain justifying the taking and appropriation of private prop- erty. Hazen v. Essex Co., 12 Cush. 475. It is certainly difficult to see any good reason for making a dis- crimination in this respect between different branches of industry. If it is lawful and constitutional to advance the manufacturing or mechanical interests of a section of the state by allowing individ- uals acting primarily for their own profit to take private property, there would seem to be little, if any, room for doubt as to the authority of the legislature, acting as the representatives of the whole people, to make a similar appropriation by their own imme- diate agents in order to promote the agricultural interests of a large territory. Indeed it would seem to be most reasonable, and consistent with the principle upon which legislation of this char- acter has been exercised and judicially sanctioned in this common- wealth, to hold that the legislature might provide that land which has been taken for a public use and subjected to a servitude or easement by which its value has been impaired and it has been rendered less productive, should be relieved from the burden, if the purpose for which it was so appropriated has ceased to be of public utility, and its restoration to its original condition, dis- charged of the incumbrance, will tend to promote the interest of the community by contributing to the means of increasing the general wealth and prosperity. If the right of a mill owner to raise a dam and flow the land of adjacent proprietors has ceased to be of any public advantage, and tends to retard prosperity and to impoverish the neighborhood, and the withdrawal of the water from the land by taking down the dam and rendering the land available for agricultural purposes would be so conducive to the interests of the community as to render it a work of public utility, there is no good reason why the legislature may not constitution- ally exercise the power to take down the dam on making suitable compensation to the owner. It would only be to apply to the millowner for the benefit of agriculture the same rule which had been previously applied to the landowner for the promotion of manufacturing and mechanical pursuits. Nor are we without precedent for acts of legislation by which private property has been taken for the purpose of improving land and rendering it fertile and productive. The St. of 1795, c. 62, for the improvement of meadows, swamps, and low lands, recognizes the right of taking private property for the purpose of redeeming lands from the effects of stagnant water and of being overflowed by obstructions in brooks and rivers. * * * por the injury thus occasioned to private property, a remedy is provided by the statute. But it is clearly an appropriation of private property pri- marily for the benefit of the owners of the meadows or low land.i PUBLIC PURPOSH 335 which are intended to be improved, and where the public use or benefit which justifies such appropriation consists in the indirect advantage to the community, derived from the increase of the pro- ductive capacity of the soil and the promotion of the agricultural interests of the owners of the land. It was suggested at the argument, that there was an essential difference between the provisions of statutes for the improvement of meadows and low lands and that under consideration, because by the former it was provided that the damages should be paid by the parties benefited, whereas by the latter they are to be paid out of the public treasury. But we cannot see the force or bearing of this suggestion. The mode of compensating the party whose property is taken cannot affect the validity of the appropriation, so far as it depends on the question, whether it was taken for a public use. If the use is not in its nature public, the appropriation is invalid and unconstitutional, and the mode by which compen- sation to the owners of land taken is to be made is wholly imma- terial. It is only when property is taken for a purpose for which it may be constitutionally appropriated, that it becomes necessary to determine whether provision is made for compensation, suita- ble and adequate to furnish a remedy to the party injured. * * * Injunction dissolved. CLARK v. NASH. (Supreme Court of United States, 1905. 198 U. S. 361, 25 Sup. Ct. 676, 49 L. Ed. 1085, 4 Ann. Cas. 1171.) [Error to the Utah Supreme Court. Nash brought a statutory condemnation proceeding to obtain a right to convey water by an enlarged ditch across Clark's land from Ft. Canyon creek to irri- gate Nash's land. Nash's land was arid without irrigation, and he owned the right to use enough water from said creek to irrigate his land ; but owing to the conformation of the country this water could be brought upon his land only over Clark's land, and only by enlarging a ditch already owned and used by Clark and located on Clark's land. The Utah Supreme Court upheld a judgment of con- demnation of the right claimed, upon payment of $40 damages and the assumption by Nash of an obligation to bear his propor- tionate share of the expense of maintaining said ditch in the fu- ture.] Mr. Justice Peckham. The plaintiffs in error contend that the proposed use of the enlarged ditch across their land for the pur- pose of conveying water to the land of the defendant in error alone is not a public use, and that, therefore, the defendant in error has no constitutional or other right to condemn the land, or any por- tion of it, belonging to the plaintiffs in error, for that purpose. 336 RIGHT OF EMINENT DOMAIN They argue that, although the use of water in the state of Utah for the purposes of mining or irrigation or manufacturing may be a public use where the right to use it is common to the public, yet that no individual has the right to condemn land for the pur- pose of conveying water in ditches across his neighbor's land, for the purpose of irrigating his own land alone, even where there is, as in this case, a state statute permitting it. In some states, probably in most of them, the proposition con- tended for by the plaintiffs in error would be sound. But whether a statute of a state permitting condemnation by an undividual for the purpose of obtaining water for his land or for mining should be held to be a condemnation for a public use, and, therefore, a valid enactment, may depend upon a number of considerations re- lating to the situation of the state and its possibilities for land cul- tivation, or the successful prosecution of its mining or other in- dustries. Where the use is asserted to be public, and the right to the individual to condemn land for the purpose of exercising such use is founded upon or is the result of some peculiar condition of the soil or climate, or other peculiarity of the state, where the right of condemnation is asserted under a state statute, we are always, where it can fairly be done, strongly inclined to hold with the state courts, when they uphold a state statute providing for such con- demnation. The validity of such statutes may sometimes depend upon many different facts, the existence of which would make a public use, even by an individual, where, in the absence of such facts, the use would clearly be private. Those facts must be gen- eral, notorious, and acknowledged in this state, and the state courts may be assumed to be exceptionally familiar with them. They are not the subject of judicial investigation as to their exist- ence, but the local courts know and appreciate them. They under- stand the situation which led to the demand for the enactment of the statute, and they also appreciate the results upon the growth and prosperity of the state which, in all probability, would flow from a denial of its validity. These are matters which might prop- erly be held to have a material bearing upon the question whether the individual use proposed might not in fact be a public one. It is not alone the fact that the land is arid and that it will bear crops if irrigated, or that the water is necessary for the purpose of working a mine, that is material; other facts might exist which are also material, — such as the particular manner in which the irrigation is carried on or proposed, or how the mining is to be done in a particular place where water is needed for that purpose. The general situation and amount of the arid land or of the mines themselves might also be material, and what proportion of the water each owner should be entitled to ; also the extent of the pop- ulation living in the surrounding country, and whether each owner of land or mines could be, in fact, furnis.hed with the necessary PUBLIC PURPOSE 337 water in any other way than by the condemnation in his own be- half, and not by a company, for his use and that of others. These, and many other facts not necessary to be set forth in de- tail, but which can easily be imagined, might reasonably be re- garded as material upon the question of public use, and whether the use by an individual could be so regarded. With all of these the local courts must be presumed to be more or less familiar. This court has stated that what is a public use may frequently and largely depend upon the facts surrounding the subject, and we have said that the people of a state, as also its courts, must, in the nature of things, be more familiar with such facts, and with the necessity and occasion for the irrigation of the lands, than can any one be who is a stranger to the soil of the state, .and that such knowledge and familiarity must have their due weight with the state courts. Fallbrook Irrig. District v. Bradley, 164 U. S. 112, 159, 41 L. Ed. 369, 388, 17 Sup. Ct. 56. It is true that in the Fall- brook Case the question was whether the use of the water was a public use when a corporation sought to take land by condemna- tion under a state statute, for the purpose of making reservoirs and digging ditches to supply landowners with the water the com- pany proposed to obtain and save for such purpose. This court held that such use was public. The case did not directly involve the right of a single individual to condemn land under a statute providing for that condemnation. We are, however, as we have said, disposed to agree with the Utah court with regard to the validity of the state statute which provides, under the circumstances stated in the act, for the con- demnation of the land of one individual for the purpose of allowing another individual to obtain water from a stream in which he has an interest, to irrigate his land, which otherwise would remain absolutely valueless. But we do not desire to be understood by this decision as ap- proving of the broad proposition that private property may be taken in all cases where the taking may promote the public interest and tend to develop the natural resources of the state. We simply say that in this particular case, and upon the facts stated in the findings of the court, and having reference to the conditions al- ready stated, we are of opinion that the use is a public one, al- though the taking of the right of way is for the purpose simply of thereby obtaining the water for an individual, where it is abso- lutely necessary to enable him to make any use whatever of his land, and which will be valuable and fertile only if water can be obtained. Other landowners adjoining the defendant in error, if any there are, might share in the use of the water by themselves taking the same proceedings to obtain it, and we do not think it necessary, in order to hold the use to be a public one, that all Hall Cases Const.L. — ^22 338 EIGHT OF EMINENT DOMAIN should join in the same proceeding, or that a company should be formed to obtain the water which the individual landowner might then obtain his portion of from the company by paying the agreed price, or the price fixed by law. The rights of a riparian owner in and to the use of the water flowing by his land are not the same in the arid and mountainous states of the West that they are in the states of the East. These rights have been altered by many of the Western states by their constitutions and laws, because of the totally different circum- stances in which their inhabitants are placed, from those that exist in the states of the East, and such alterations have been made for the very purpose of thereby contributing to the growth and pros- perity of those states, arising from mining and the cultivation of an otherwise valueless soil, by means of irrigation. This court must recognize the difference of climate and soil, which render necessary these different laws in the states so situated. We are of opinion, having reference to the above peculiarities which exist in the state of Utah, that the statute permitting the defendant in error, upon the facts appearing in this record, to en- large the ditch, and obtain water for his own land, was within th* legislative power of the state. Judgment affirmed. [HarIvAn and BeEwEr, JJ., dissented.] III. Taking and Injuring Property * EATON V. BOSTON, C. & M. R.' R. (Supreme Court of New Hampshire, 1872. 51 N. H. 504, 12 Am. Rep. 147.) [Exceptions to rulings of court in an action on the case brought by Eaton against the Boston, Concord & Montreal Railroad. De- fendant, incorporated by legislative authority, built its railroad across plaintiff's farm and beyond, paying plaintiff for all damage due to the construction and maintenance of the road on the part of his land taken therefor. Beyond plaintiff's farm was a narrow ridge of land, about 25 feet high and 20 rods wide, that protected the farm and adjacent meadows from the overflow of Baker's river. Defendant made a deep cut through this ridge for its road, and the river water flowed through this in floods and freshets upon plain- tiff's farm, carrying sand and gravel upon it. For this damage plaintiff sued. The lower court ruled that defendant was liable, s For discussion of principles, see Black, Const. Law (3d Ed.) §§ 182, 183. TAKING AND INJURING PROPERTY 339 even though its road was carefully constructed in the usual man- ner, and these exceptions were taken.] Smith, J. It is virtually conceded that, if the cut through the ridge had been made by a private land-owner, who had acquired no rights from the plaintiff or from the legislature, he would be liable for the damages sought to be recovered in this action. It seems to be assumed that the freshets were such as, looking at the history of the stream in this respect, might be "reasonably expect- ed occasionally to occur." The defendants removed the natural barrier which theretofore had completely protected the plaintiff's meadow from the effect of these freshets ; and, for the damages caused to the plaintiff in consequence of such removal, the defend- ants are confessedly liable, unless their case can be distinguished from that of the private land-owner above supposed. Such a dis- tinction is attempted upon two grounds, — first, that the plaintiff has already been compensated for this damage, it being alleged that the defendants have, by negotiation, or by compulsory pro- ceedings, purchased of the plaintiff the right to inflict it; second, that the defendants are acting under legislative authority, by virtue of which they are entitled to inflict this damage on the plaintiff without any liability to compensate him therefor. * * * The defendants' first position is, that the plaintiff has already received compensation for this damage. This position the court have now overruled. The defendants' next position is, that the plaintiff is not legally entitled to receive any compensation, but is bound to submit to the infliction of this damage without any right of redress. The argument is not put in the precise words we have just used, but that is what we understand them to mean. The de- fendants say that the legislative charter authorized them to build the road, if they did it in a prudent and careful manner ; that they constructed the road at the cut with due care and prudence; and that they cannot be made liable as tort-feasors for doing what the legislature authorized them to do. This involves two propositions: first, that the legislature have attempted to authorize the defend- ants to inflict this injury upon the plaintiff without making com- pensation; and second, that the legislature have power to confer such authority. There are decisions which tend to show that the charter should not be construed as evincing any legislative inten- tion to authorize this injury, or to shield the defendants from lia- bility in a common-law action. Tinsman v. Belvidere Delaware R. R. Co., 2 Butcher (R J.) 148, 69 Am. Dec. 565 ; Sinnickson v. Johnson, 2 Harr. (N. J.) 129, 34 Am. Dec. 184; Hooker v. New Haven & Northampton Co., 14 Conn. 146, 36 Am. Dec. 477; Fletcher v. Auburn & Syracuse R. R. Co., 25 Wend. 462 ; Brown V. Cayuga & Susquehanna R. R. Co., 12 N. Y. (2 Kernan) 486, 491. See, also, Eastman v. Company, 44 N. H. 143, 160, 82 Am. Dec. 201; Hooksett v. Company, 44 N. H. 105, 110; Company 340 RIGHT OF EMINENT DOMAIN V. Goodale, 46 N. H. 53, 57 ; Barrows, J., in Lee v. Pembroke Iron Co., 57 Me. 481, 488, 2 Am. Rep. 59. But we propose to waive inquiry on this point, and to consider only the correctness of the second proposition, or, in other words, the question of legislative power. * * * The vital issue then is, whether the injuries complained of amount to a taking of the plaintiff's property, within the constitu- tional meaning of those terms. It might seem that to state such a question is to answer it; but an examination of the authorities reveals a decided conflict of opinion. The constitutional prohibi- tion (which exists in most, or all, of the states) has received, in some quarters, a construction which renders it of comparatively little worth, being interpreted much as if it read : "No person shall be divested of the formal title to property without compensation, but he may without compensation be deprived of all that makes the title valuable." To constitute a "taking of property," it seems to have sometimes been held necessary that there should be "an exclusive appropriation," "a total assumption of possession," "a complete ouster," an absolute or total conversion of the entire property, "a taking of the property altogether." These views seem to us to be founded on a misconception of the meaning of the term "property," as used in the various state Constitutions. In a strict legal sense, land is not "property," but the subject of property. The term "property," although in common parlance fre- quently applied to a tract of land or a chattel, in its legal signifi- cation "means only the rights of the owner in relation to it." "It denotes a right * * * over a determinate thing." "Property is the right of any person to possess, use, enjoy, and dispose of a thing." Selden, J., in Wynehamer V. People, 13 N. Y. 378, 433 ; 1 Blackstone, Com. 138; 2 Austin on Jurisprudence (3d Ed.) 817, 818. If property in land consists in certain essential rights, and a physical interference with the land substantially subverts one of those rights, such interference "takes," pro tanto, the owner^s "property." The right of indefinite user (or of using indefinitely) is an essential quality or attribute of absolute property, without which absolute property can have no legal existence. "Use is the real side of property." This right of user necessarily includes the right and power of excluding others from using the land. See 2 Austin on Jurisprudence (3d Ed.) 836; Wells, J., in Walker v. O. C. W. R. R., 103 Mass. 10, 14, 4 Am. Rep. 509. From the very nature of these rights of user and of exclusion, it is evident that they cannot be materially abridged without, ipso facto, taking the owner's "property." If the right of indefinite user is an essential element of absolute property or complete ownership, whatever physical interference annuls this right takes "property," although the owner may still have left to him valuable rights (in the article.) of a more limited and circumscribed nature. He has not the same TAKING AND INJURING PEOPEETY 341 property that he formerly had. Then, he had an unlimited right; now, he has only a limited right. His absolute ownership has been reduced to a qualified ownership. Restricting A's unlimited right of using one hundred acres of land to a limited right of using the same land, may work a far greater injury to A than to take from him the title in fee-simple to one acre, leaving him the unrestricted right of using the remaining ninety-nine acres. Nobody doubts that the latter transaction would constitute a "taking of property." Why not the former? If, on the other hand, the land itself be regarded as "property," the practical result is the same. The purpose of this constitutional prohibition cannot be ignored in its interpretation. The framers of the Constitution intended to protect rights which are worth protecting; not mere empty titles, or barren insignia of owner- ship, which are of no substantial value. If the land, "in its cor- poreal substance and entity," is "property," still, all that makes this property of any value is the aggregation of rights or qualities which the law annexes as incidents to the ownership of it. The constitutional prohibition must have been intended to protect all the essential elements of ownership which make "property" valu- able. Among these elements is, fundamentally, the right of user, including, of course, the corresponding right of excluding others from the use. See Comstock, J., in Wynehamer v. People, 13 N. Y. 378, 396. A physical interference with the land, which sub- stantially abridges this right, takes the owner's "property" to just so great an extent as he is thereby deprived of this right. "To de- prive one of the use of his land is depriving him of his land ;" for, as Lord Coke said: "What is the land but the profits thereof?" Sutherland, J., in People v. Kerr, 37 Barb. 357, 399 ; Co. Litt. 4b. The private injury is thereby as completely effected as if the land itself were "physically taken away." The principle must be the same whether the owner is wholly de- prived of the use of his land, or only partially deprived of it; al- though the amount or value of the property taken in the two in- stances may widely differ. If the railroad corporation take a strip four rods wide out of a farm to build their track upon, they can- not escape paying for the strip by the plea that they have not taken the whole farm. So a partial, but substantial, restriction of the right of user may not annihilate all the owner's rights of prop- erty in the land, but it is none the less true that a part of his prop- erty is taken. Taking a part "is as much forbidden by the Consti- tution as taking the whole. The difference is only one of degree; the quantum of interest may vary, but the principle is the same." See 6 Am. Law Review, 197-198; Lawrence, J., in Nevins v. City of Peoria, 41 111. 502, 511, 89 Am. Dec. 392. The explicit language used in one clause of our Constitution indicates the spirit of the whole instrument. "No part of a man's property shall be taken. 342 RIGHT OF EMINENT DOMAIN * * * " Constitution of N. H., Bill of Rights, article 12. The opposite construction would practically nullify the Constitution. If the public can take part of a man's property without compensa- tion, they can, by successive takings of the dififerent parts, soon acquire the whole. Or, if it is held that the complete divestiture of the last scintilla of interest is a taking of the whole for which compensation must be made, it will be easy to leave the owner an interest in the land of infinitesimal value. The injury complained of in this case is not a mere personal inconvenience or annoyance to the occupant. Two marked char- acteristics distinguish this injury from that described in many other cases. First, it is a physical injury to the land itself, a phys- ical interference with the rights of property, an actual disturbance of the plaintiff's possession. Second, it would clearly be action- able if done by a private person without legislative authority. The damage is "consequential," in the sense of not following immedi- ately in point of time upon the act of cutting through the ridge, but it is what Sir William Erie calls "consequential damage to the actionable degree." See Brand v. H. & C. R. Co., Law Re- ports, 2 Queen's Bench, 223, 249. These occasional inundations may produce the same effect in preventing the plaintiff from mak- ing a beneficial use of the land as would be caused by a manual asportation of the constituent materials of the soil. Covering the land with water, or with stones, is a serious interruption of the plaintiff's right to use it in the ordinary manner. If it be said that the plaintiff still has his land, it may be answered, that the face of the land does not remain unchanged, and that the injury may result in taking away part of the soil ("and, if this may be done, the plaintiff's dwelling-house may soon follow") ; and that, even if the soil remains, the plaintiff may, by these occasional submerg- ings, be deprived of the profits which would otherwise grow out of his tenure. "His dominion over it, his power of choice as to the uses to which he will devote it, are materially limited." Brink- erhoff, J., in Reeves v. Treasurer of Wood County, 8 Ohio St. 333, 346. The nature of the injury done to the plaintiff may also be seen by adverting to the nature of the right claimed by the defendants. The primary purpose of the defendants in cutting through the ridge was to construct their road at a lower level than would oth- erwise have been practicable. But, although the cut was not made "for the purpose of conducting the water in a given course" on to the plaintiff's land, it has that result ; and the defendants persist in allowing this excavation to remain, notwithstanding the injury thereby visibly caused to the plaintiff. Rather than raise the grade of their track, they insist upon keeping open a canal to con- duct the flood-waters of the river directly on to the plaintiff's land. If it be said that the water came naturally from the southerly end TAKING AND INJURING PROPERTY 343 of the cut on to the plaintiff's land, the answer is, that the water did not come naturally to the southerly end of the cut. It came there by reason of the defendants' having made that cut. In con- sequence of the cut, water collected at the southerly boundary of the ridge, north of the plaintiff's farm, which would not have been there if the ridge had remained in its normal and unbroken con- dition. They have "so dealt with the soil" of the ridge, that, if a flood came, instead of being held in check by the ridge, and ulti- mately getting away by the proper river channel without harm to the plaintiff, it flowed through where the ridge once was on to the plaintiff's land. "Could the defendants say they were not liable because they did not cause the rain to fall," which resulted in the freshet ; or because the water "came there by the attraction of gravitation?" See Bramwell, Baron, in Smith v. Fletcher, Law Reports, 7 Exchq. 305, 310. If the ridge still remained in its nat- ural condition, could the defendants pump up the flood-water into a spout on the top of the ridge, and thence, by means of the spout, pour it directly on to the plaintiff's land? If not, how can they maintain a canal through which the water by the force of gravita- tion will inevitably find its way to the plaintiff's land ? See Ames, J., in Shipley v. Fifty Associates, 106 Mass. 194, 199, 200, 8 Am. Rep. 318; Chapman, C. J., in Salisbury v. Herchenroder, 106 Mass. 458, 460, 8 Am. Rep. 354. To turn a stream of water on to the plaintiff's premises is as marked an infringement of his proprietary rights as it would be for the defendants to go upon the premises in person and "dig a ditch, or deposit upon them a mound of earth." See Lawrence, J., in Nevins v. City of Peoria, 41 111. 502, 510, 89 Am. Dec. 392; Dixon, C. J., in Pettigrew v. Village of Evansville, 25 Wis. 223, 231, 236, 3 Am. Rep. 50. The defendants may, perhaps, regret that they cannot maintain their track at its present level without thereby occasionally pouring flood-water on to the land of the plaintiff. Indeed, the passage of this water through the cut may cause some injury to the defendants' road bed. But the advantages of maintaining the track at the present grade outweigh, in the defendants' estimation, the risk of injury by water to themselves and to the plaintiff. In asserting the right to maintain the present condition of things as to the cut, the defendants necessarily assert the right to produce all the results which naturally follow from the ex- istence of the cut. In effect, they thus assert a right to discharge water on to the plaintiff's land. Such a right is an easement. A right of "occasional flooding" is just as much an easement as a right of "permanent submerging;" it belongs to the class of easements which "are by their nature intermittent — that is, usable or used only at times." See Goddard's Law of Ease- ments, 125. If the defendants had erected a dam on their own 344 RIGHT OF EMINENT DOMAIN land across the river below the plaintiff's meadow, and by means of flash-boards thereon had occasionally caused the water to flow back and overflow the plaintifif's meadow so long and under such circumstances as to give them a prescriptive right to con- tinue such flowage, the right thus acquired would unquestion- ably be an "easement." The right acquired in that case does not differ in its nature from the right now claimed. In the former instance, the defendants flow the plaintiff's land by erecting an un- natural barrier below his premises. In the present instance, they flow his land by removing a natural barrier on the land above his premises. In both instances, they flow his land by making "a non- natural use" of their own land. In both instances, they do an act upon their own land, the effect of which is to restrict or burden the plaintiff's ownership of his land (see Leconfield v. Lonsdale, Law Reports, 5 Com. Pleas, 657, 696) ; and the weight of that bur- den is not necessarily dependent upon the source of the water, whether from below or above. See Bell, J., in Tillotson v. Smith, 32 N. H. 90, 95, 96, 64 Am. Dec. 355. In both instances they turn water upon the plaintiff's land "which does not flow naturally in that place." If the right acquired in the former instance is an easement, equally so must be the right claimed in the latter. If, then, the claim set up by the defendants in this case is well found- ed, an easement is already vested in them. An easement is prop- erty, and is within the protection of the constitutional prohibition now under consideration. If the defendants have acquired this easement, it cannot be taken from them, even for the public use, without compensation. But the right acquired by the defendants is subtracted from the plaintiff's ownership of the land. What- ever interest the defendants have acquired in this respect the plain- tiff has lost. If what they have gained is property, then wjiat he has lost is property. If the easement, when once acquired, cannot be taken from the defendants without compensation, can the de- fendants take it from the plaintiff in the first instance without compensation? See Brinkerhoff, J., ubi supra; Selden, J., in Wil- liams V. N. Y. Central R. R., 16 N. Y. 97, 109, 69 Am. Dec. 651. An easement is all that the railroad corporation acquire when they locate and construct their track directly over a man's land. The fee remains in the original owner. Blake v. Rich, 34 N. H. 282. Yet nobody doubts that such location and construction is a "tak- ing of property," for which compensation must be made. See Redfield, J., in Hatch v. Vt. Central R. R., 25 Vt. 49, 66. What difference does it make in principle whether the plaintiff's land is encumbered with stones, or with iron .rails? whether the defend- ants run a locomotive over it, or flood it with the waters of Ba- ker's river? See Wilcox, J., in March v. P. & C. R. R., 19 N. H. 372, 380; Walworth, Chan., in Canal Com'rs & Canal Apprais- ers V. People, 5 Wend. 423, 452. * * * TAKING AND INJURING PROPERTY 345 We think that here has been a taking of the plaintiff's property ; that, as the statutes under which the defendants acted make no provision for the plaintiff's compensation, they afford no justifica- tion; that the defendants are liable in this action as wrong-doers; and that the ruling of the court was correct. These conclusions, which are supported by authorities to which reference will soon be made, seem to us so clear, that, if there were no adverse au- thorities, it would be unnecessary to prolong the discussion of this case. But, as there are respectable authorities which are in direct conflict with these conclusions, it has been thought desirable to examine some arguments which have, at various times, been ad- vanced in support of the opposite view. In some instances, as soon as it has been made to appear that there is a legislative enactment purporting to authorize the doing of the act complained of, the complaint has been at once . sum- marily disposed of by the curt statement "that an act authorized by law cannot be a tort." This is begging the question. It as- sumes the constitutionality of the statute. If the enactment is op- posed to the Constitution, it is "in fact no law at all." * * * The error in question * * * arises from following English au- thorities, without adverting to the immense difference between the practically omnipotent powers of the British Parliament and the comparatively limited powers of oiir state legislatures, acting under the restrictions of written constitutions. Parliament is the supreme power of the realm. It is at once a legislature and a constitutional convention. * * * It is said that a land-owner is not entitled to compensation where the damage is merely "consequential." The use of this term "con- sequential damage" "prolongs the dispute," and "introduces an equivocation which is fatal to any hope of a clear settlement." It means both damage which is so remote as not to be actionable, and damage which is actionable. Sometimes it is used to denote damage which, though actionable, does not follow immediately, in point of time, upon the doing of the act complained of ; what Erie, C. J., aptly terms "consequential damage to the actionable de- gree." Brand v. H. & C. R. Co., Law Reports, 2 Queen's Bench, 223, 249. It is thus used to signify damage which is recoverable at common law in an action of case, as contradistinguished from an action of trespass. On the other hand, it is used to denote a damage which is so remote a consequence of an act that the law affords no remedy to recover it. * * * When, then, it is said that a land-owner is not entitled to compensation for "consequen- tial damage," it is impossible either to afifirm or deny the correct- ness of the statement until we know in what sense the phrase "consequential damage" is used. If it is to be taken to mean dam- age which would not have been actionable at common law if done -346 EIGHT OF EMINENT DOMAIN by a private individual, tlie proposition is correct. The constitu- tional restriction was designed "not to give new rights, but to pro- tect those already existing." Pierce on Am. R. R. Law, 173 ; and see Rickett v. Directors, &c., of Metropolitan Railway Co., Law Reports, 2 House of Lords, 175, 188, 189, 196. But this does not concern the present case, where it is virtually conceded that the injury would have been actionable if done by a private individual not acting under statutory authority. If, upon the other hand, the phrase is used to describe damage, which, though not following immediately in point of time upon the doing of the act complained of, is nevertheless actionable, there seems no good reason for es- tablishing an arbitrary rule that such damage can in no event amount to a "taking of property." The severity of the injury ultimately resulting from an act is not always in inverse proportion to the lapse of time between the doing of the act and the production of the result. Heavy damages are recovered in case as well as in trespass. The question whether the injury constitutes a "taking of property" must depend on its effect upon proprietary rights, not on the length of time necessary to produce that effect. If a man's entire farm is permanently sub- merged, is the damage to him any less because the submerging was only the "consequential" result of another's act? It has been said "that a nuisance by flooding a man's land was originally con- sidered so far a species of ouster, that he might have had a remedy for it by assize of novel disseisin;" but if it be conceded that at present the only common law remedy is by an action on the case, that does not change the aspect of the constitutional question. The form of action in which the remedy must be sought cannot be decisive of the question whether the injury falls within the consti- tutional prohibition. "We are not to suppose that the framers of the Constitution meant to entangle their meaning in the mazes" of the refined technical distinctions by which the common-law system of forms of action is "perplexed and encumbered." Such a test would be inapplicable in a large proportion of the states, where the distinction between trespass and case has been annihi- lated by the abolition of the old forms of action. * * * [After a lengthy review of the authorities :] By the foregoing review of authorities, it appears that the number of actual deci- sions in irreconcilable conflict with the present opinion is much smaller than has sometimes been supposed, and that, in a large proportion of the cases cited, the application of the principles here maintained would not have necessitated the rendition of a different judgment from that which the courts actually rendered in those cases. * * * Case discharged. TAKING AND INJURING PROPEETY 347 SAWYER V. DAVIS. (Supreme Judicial Court of Massachusetts, 1884. 136 Mass. 239, 49 Am. Eep. 27.) [Case reserved. The plaintiff manufacturers had been enjoined by the present defendants from ringing their mill bell before 6:30 a. m. as a nuisance. See Davis v. Sawyer, 133 Mass. 289, 43 Am. Rep. 519. Acting under subsequent legislative authority the se- lectmen of Plymouth granted to plaintiffs a license to ring their bell at 5 a. m. as they had done before the injunction. Plaintiffs then filed a bill of review to have the former injunction dissolved or modified in accordance with said license. On demurrer to the bill, Colburn, J., reserved the case for the full court.] C. Allen, J. Nothing is better established than the power of the Legislature to make what are called police regulations, declaring in what manner property shall be used and enjoyed, and business carried on, with a view to the good oi-der and benefit of the com- munity, even although they may to some extent interfere with the full enjoyment of private property, and although no compensation is given to a person so inconvenienced. Bancroft v. Cambridge, 126 Mass. 438, 441. In most instances, the illustrations of the. proper exercise of this power are found in rules and regulations restraining the use of property by the owner, in such a manner as would cause disturbance and injury to others. But the priv- ilege of continuing in the passive enjoyment of one's own property, in the same manner as formerly, is subject to a like limitation; and with the increase of population in a neighborhood, and the advance and development of business, the quiet and seclusion and customary enjoyment of homes are necessarily interfered with, un- til it becomes a question how the right which each person has of prosecuting his lawful business in a reasonable and proper man- ner shall be made consistent with the other right which each per- son has to be free from unreasonable disturbance in the enjoyment of his property. Merriiield v. Worcester, 110 Mass. 216, 219, 14 Am. Rep. 592. In this conflict of rights, police regulations by the Legislature find a proper office in determining how far and under what circumstances the individual must yield with a view to the general good. For example, if, in a neighborhood thickly occupied by dwelling-houses, any one, for his own entertainment or the gratification of a whim, were to cause bells to be rung and steam- whistles to be blown to the extent that is usual with the bells and steam-whistles of locomotive engines near railroad stations in large cities, there can be no doubt that it would be an infringement of the rights of the residents, for which they could find ample remedy and vindication in the courts. But if the Legislature, with a view to the safety of life, provides that bells shall be rung and 348 BIGHT OF EMINENT DOMAIN whistles sounded, under those circumstances, persons living near by must necessarily submit tq some annoyance from this source, which otherwise they would have a right to be relieved from. It is ordinarily a proper subject for legislative discretion to de- termine by general rules the extent to which those who are en- gaged in customary and lawful and necessary occupations shall be required or allowed to give signals or warnings by bells or whistles, or otherwise, with a view either to the public safety, as in the case of railroads, or to the necessary or convenient operation and management of their own works ; and ordinarily such determi- nation is binding upon the courts, as well as upon citizens gen- erally. And when the Legislature directs or allows that to be done which would otherwise be a nuisance, it will be valid, upon the ground that the lyCgislature is ordinarily the proper judge of what the public good requires, unless carried to such an extent that it can fairly be said to be an unwholesome and unreasonable law. Bancroft v. Cambridge, 126 Mass. 441. It is accordingly held in many cases, and is now a well-established rule of law, at least in this commonwealth, that the incidental injury which re- sults to the owner of property situated near a railroad, caused by the necessary noise, vibration, dust, and smoke from the passing trains, which would clearly amount to an actionable nuisance if the operation of the railroad were not authorized by the Legisla- ture, must, if the running of the trains is so authorized, be borne by the individual, without compensation or remedy in any form. The legislative sanction makes the business lawful, and defines what must be accepted as a reasonable use of property and ex- ercise of rights on the part of the railroad company, subject always to the qualification that the business must be carried on without negligence or unnecessary disturbance of the rights of others. And the same rule extends to other causes "of annoyance which are regulated and sanctioned by law. [Citing cases.] * * * The recent case of Baltimore & Potomac Railroad v. Fifth Bap- tist Church, 108 U. S. 317, 2 Sup. Ct. 719, 27 L. Ed. 739, is strongly relied on by the defendants as an authority in their favor. There are, however, two material and decisive grounds of distinction be- tween that case and this. There the railroad company had only a general legislative authority to construct works necessary and ex- pedient for the proper completion and maintenance of its railroad, under which authority it assumed to build an engine-house and machine-shop by an existing church, and it was held that it was never intended to grant a license to select that particular place for such works, to the nuisance of the church. Moreover, in that case, the disturbance was so great as not only to render the church uncomfortable, but almost unendurable as a place of worship, and it virtually deprived the owners of the use and enjoyment of their TAKING AND INJURING PROPERTY 349 property. We do not understand that it was intended to lay down, as a general rule applicable to all cases of comparatively slight though real annoyance, naturally and necessarily resulting in a greater or less degree to all owners of property in the neighbor- hood from a use of property or a method of carrying on a lawful business which clearly falls within the terms and spirit of a legis- lative sanction, that such sanction will not afifect the claim of such an owner to relief ; but rather that the court expressly waived the expression of an opinion upon the point. In this commonwealth, as well as in several of the United States and in England, the cases already cited show that the question is settled by authority, and we remain satisfied with the reasons upon which the doctrine was here established. Courts are compelled to recognize the distinction between such serious disturbances as existed in the case referred to, and comparatively slight ones, which differ in degree only, and no,t in kind, from those suffered by others in the same vicinity. Slight infractions of the natural rights of the individual may be sanctioned by the Legislature under the proper exercise of the police power, with a view to the gen- eral good. Grave ones will fall within the constitutional limitation that the Legislature is only authorized to pass reasonable laws. The line of distinction cannot be so laid down as to furnish a rule for the settlement of all cases in advance. The difficulty of mark- ing the boundaries of this legislative power, or of prescribing lim- its to its exercise, was declared in Commonwealth v. Alger, 7 Cush. 53, 85, and is universally recognized. Courts, however, must de- termine the rights of parties in particular cases as they arise; always recognizing that the ownership of property does not of it- self imply the right to use or enjoy it in every possible manner, without regard to corresponding rights of others as to the use and enjoyment of their property; and also that the rules of the com- mon law, which have from time to time been established, declar- ing or limiting such rights of use and enjoyment, may themselves be changed as occasion may require. Munn v. Illinois, 94 U. S- 113, 134, 24 L. Ed. 77. In the case before us, looking at it for the present without re- gard to the decree of this court in the former case between these parties, we find nothing in the facts set forth which show that the statute relied on as authorizing the plaintiffs to ring their bell (St. 1883, c. 84) should be declared unconstitutional. It is vir- tually a license to manufacturers, and others employing workmen, to carry on their business in a method deemed by the Legislature to be convenient, if not necessary, for the purpose of giving notice, by ringing bells, and using whistles and gongs, in such manner and at such times as may be designated in writing by municipal officers. * * * 350 RIGHT OF EMINENT DOMAIN [The court then decided that defendants had no vested right to a continuance of the injunction after the law had been changed by the Legislature.] Demurrer overruled. SAUER V. CITY OF NEW YORK (Supreme Court of United States, 1907. 206 U. S. 536, 27 Sup.-Ct. 686, 51 L. Ed. 1176.) [Error to the New York Supreme Court, upon a judgment for defendant, affirmed by the Appellate Division and the Court of Appeals, and then remitted to the Supreme Court of the state for final judgment. The plaintiff owned land and buildings upon 155th street in New York City, one end of which street was closed by a steep bluff 70 feet high. To connect this street with the streets at the top of the bluff, the city constructed a viaduct above the surface of ISSth street, running with a gradual ascent to the top of the bluff, and devoted solely to ordinary street traffic by teams, vehicles, and pedestrians. Opposite plaintiff's land the viaduct was 50 feet high, 63 feet wide, and came within 10 feet of his building. The viaduct and its supporting columns materially impaired the light, air, and access plaintiff's land enjoyed from the street. Other facts appear in the opinion.] Mr. Justice Moody. * * * The plaintiff, in his complaint, alleged that this structure was unlawful, because the law under which it. was constructed did not provide for compensation for the injury to his private property in the easements of access, light, and air, appurtenant to his estate. The court of appeals denied the plaintiff the relief which he sought, upon the ground that, un- der the law of New York, he had no easements of access, light, or air, as against any improvement of the street for the purpose of adapting it to public travel. In other words, the court in effect decided that the property alleged to have been injured did not exist. The reasons upon which the decision of that court proceed- ed will appear by quotations from the opinion of the court, deliv- ered by Judge Haight. Judge Haight said: "The fee of the street having been acquired according to the provisions of the statute, we must assume that full compensation was made to the owners of the lands through which the streets and avenues were laid out, and that thereafter the owners of lands abutting thereon hold their titles subject to all of the legitimate and proper uses to which the streets and public highways may be devoted. As such owners they are subject to the right of the pub- lic to grade and improve the streets, and they are presumed to have been compensated for any future improvement or change in the surface or grade rendered necessary for the convenience of TAKING AND INJURING PEOPEETT 351 public travel, especially in cities where the growth of population increases the use of the highways. The rule may be different as to peculiar and extraordinary changes made for some ulterior pur- poses other than the improvement of the street, as, for instance, where the natural surface has been changed by artificial means, such as the construction of a railroad embankment, or a bridge over a railroad, making elevated approaches necessary. But as to changes from the natural contour of the surface, rendered neces- sary in order to adapt the street to the free and easy passage of the public, they may be lawfully made without additional com- pensation to abutting owners, and for that purpose bridges may be constructed over streams and viaducts over ravines, with approach- es thereto from intersecting streets." * * * The plaintiff now contends that the judgment afterwards ren- dered by the supreme court of New York, in conformity with the opinion of the court of appeals, denied rights secured to him by the federal Constitution. This contention presents the only ques- tion for our determination, and the correctness of the principles of local land law applied by the state courts is not open to inquiry here, unless it has some bearing upon that question. But it may not be inappropriate to say that the decision of the court of appeals seems to be in full accord with the decisions of all other courts in which the same question has arisen. The state courts have uni- formly held that the erection over a street of an elevated viaduct, intended for general public travel, and not devoted to the exclusive use of a private transportation corporation, is a legitimate street improvement, equivalent to a change of grade; and that, as in the case of a change of grade, an owner of land abutting on the street is not entitled to damages for the impairment of access to his land and the lessening of the circulation of light and air over it. Selden V. Jacksonville, 28 Fla. 558, 14 L,. R. A. 370, 29 Am. St. Rep. 278, 10 South. 457; Willis v. Winona City, 59 Minn. 27, 26 L. R. A. 142, 60 N. W. 814; Colclough v. Milwaukee, 92 Wis. 182, 65 N. W. 1039 ; Walish v. Milwaukee, 95 Wis. 16, 69 N. W. 818 ; Home Bldg. & Conveyance Co. v. Roanoke, 91 Va. 52, 27 L. R. A. 551, 20 S. E. 895 (cited with apparent approval by this court in Meyer V. Richmond, 172 U. S. 82-95, 43 L. Ed. 374-379, 19 Sup. Ct. 106) ; Willets Mfg. Co. V. Mercer County, 62 N. J. Law, 95, 40 Atl. 782 ; Brand v. Multnomah County, 38 Or. 79, 50 L. R. A. 389, 84 Am. St. Rep. 772, 60 Pac. 290, 62 Pac. 209; Mead v. Portland, 45 Or. 1, 76 Pac. 347 (affirmed by this court in 200 U. S. 148, 50 L. Ed. 413, 26 Sup. Ct. 171) ; Sears v. Crocker, 184 Mass. 588, 100 Am. St. Rep. 577, 69 N. E. 327; (semble) De Lucca v. North Little Rock (C. C.) 142 Fed. 597. The case of Willis v. Winona is singularly like the case at bar in its essential facts. There, as here, a viaduct was constructed. 352 EIGHT OF EMINENT DOMAIN connecting by a gradual ascent the level of -a public street with the level of a public bridge across the Mississippi. An owner of land abutting on the street over which the viaduct was elevated was denied compensation for his injuries, Mr. Justice Mitchell saying : "The bridge is just as much a public highway as is Main street, with which it connects ; and, whether we consider the approach as a part of the former or of the latter, it is merely a part of the high- way. The city having, as it was authorized to do, established a new highway across the Mississippi river, it was necessary to con- nect it, for purposes of travel, with Main and the other streets of the city. This it has done, in the only way it could have been done, by what, in effect, amounts merely to raising the grade of the center of Main street in front of plaintiff's lot. It can make no difference in principle whether this was done by filling up the street solidly, or, as in this case, by supporting the way on stone or iron columns. Neither is it important if the city raise the grade of only a part of the street, leaving the remainder at a lower grade. "The doctrine of the courts everywhere, both in England and in this country (unless Ohio and Kentucky are exceptions), is that so long as there is no application of the street to purposes other than those of a highway, any. establishment or change of grade made lawfully, and not negligently performed, does not impose an additional servitude upon the street, and hence is not within the constitutional inhibition against taking private property without compensation, and is not the basis for an action for damages, un- less there be an express statute to that effect. That this is the rule, and that the facts of this case fall within it, is too well estab- lished by the decisions of this court to require the citation of au- thorities from other jurisdictions. * * * "The New York elevated railway cases cited by plaintiff are not authority in his favor, for they recognize and affirm the very doc- trine that we have laid down (Story v. New York Elev. R. Co., 90 N. Y. 122, 43 Am. Rep. 146), but hold that the construction and maintenance on the street of an elevated railroad operated by steam, and which was not open to the public for purposes of travel and traffic, was a perversion of the street from street uses, and imposed upon it an additional servitude, which entitled abutting owners to damages." * * * Has the plaintiff been deprived of his property without due process of law? The viaduct did not invade the plaintiff's land. It was entirely outside that land. But it is said that appurtenant to the land there were easements of access, light, and air, and that the construction and operation of the viaduct impaired these ease- ments to such an extent as to constitute a taking of them. The TAKING AND INJURING PEOPEKTT 353 Only question which need here be decided is whether the plaintiff had, as appurtenant to his land, easements of the kind described ; in other words, whether the property which the plaintiff alleged was taken existed at all. The court below has decided that the plaintiff had no such easements; in other words, that there was no property taken. It is clear that, under the law of New York, an owner of land abutting on the street has easements of access, light, and air as against the erection of an elevated roadway by or for a private corporation for its own exclusive purposes, but that he has no such easements as against the public use of the streets, or any structures which may be erected upon the street to subserve and promote that public use. The same law which declares the easements defines, qualifies, and limits them. Surely such questions must be for the final determination of the state court. It has authority to declare that the abutting landowner has no easement of any kind over the abutting street; it may deter- mine that he has a limited easement ; or it may determine that he has an absolute and unqualified easement. The right of an owner of land abutting on public highways has been a fruitful source of litigation in the courts of all the states, and the decisions have been conflicting, and often in the same state irreconcilable in principle. The courts have modified or overruled their own decisions, and each state has in the end fixed and limited, by legislation or ju- dicial decision, the rights of abutting owners in accordance with its own view of the law and public policy. As has already been pointed out, this court has neither- the right nor the duty to rec- oncile these conflicting decisions nor to reduce the law of the various states to a uniform rule which it shall announce and im- pose. Upon the ground, then, that under the law of New York, as determined by its highest court, the plaintiff never owned the easements which he claimed, and that therefore there was no prop- erty taken, we hold that no violation of the fourteenth amendment is shown. The remaining question in the case is whether the judgment un(- der review impaired the obligation of a contract. It appears from the cases to be cited that the courts of New York have expressed the rights of owners of land abutting upon public streets to and over those streets in terms of contract rather than in terms of title. In the city of New York the city owns the fee of the public streets (whether laid out under the civil law of the Dutch regime, or as the result of conveyances between the city and the owners of land, or by condemnation proceedings under the statutory law of the state) upon a trust that they shall forever be kept open as pub- lic streets, which is regarded as a covenant running with the abut- ting land. Accepting, for the purposes of this discussion, the Hall Cases Const.I;. — 23 354 EIGHT OF EMINENT DOMAIN view that the plaintiff's rights have their origin in a contract, then it must be that the terms of the trust and the extent of the re- sulting covenant are for the courts of New York finally to decide and limit, providing that in doing so they deny no federal right of the owner. The plaintiff asserts that the case of Story v. New York Elev. R. Co., 90 N. Y. 122, 43 Am. Rep. 146, decided in 1882, four years before he acquired title to the property, interpreted the contract between the city of New York and the owners of land abutting upon its streets as assuring the owner easements of access, light, and air, which could not lawfully be impaired by the erection on the street of an elevated structure designed for pub- lic travel ; that he is entitled to the benefit of his contract as thus interpreted, and that the judgment of the court denying him its benefits impaired its obligation. If the facts upon which this claim is based are accurately stated, then the case comes within the au- thority of Muhlker v. New York.& H. R. Co., 197 U. S. 544, 49 L. Ed. 872, 25 Sup. Ct. 522, which holds that, when the court of appeals has once interpreted the contract existing between the landowner and the city, that interpretation becomes a part of the contract, upon which one acquiring land may rely, and that any subsequent change of it to his injury impairs the obligation of the contract. * * * The plaintiff in the Story Case held the title to land injuriously affected by the construction of an elevated railroad, as a successor to a grantee from the city. In the deed of the city the land was bounded on the street and contained a covenant that it should "forever thereafter continue and be for the free and common pas- sage of, and as public streets and ways for, the inhabitants of the said city, and all others passing and returning through or by the same, in like manner as the other streets of the " same city now are, or lawfully ought to be." It was held that by virtue of this covenant, which ran with the land, the plaintiff was entitled to easements in the street of access, and of free and uninterrupted passage of light and air; that the easements were property within the meaning of the Constitution of the state, and could not law- fully be taken from their owner without compensation, and that the erection of the elevated structure was a taking. The decision rested upon the view that the erection of an elevated structure for railroad purposes was not a legitimate street use. "There is no change," said Judge Danforth (page 156), "in the street surface intended ; but the elevation of a structure useless for general street purposes, and as foreign thereto as the house in Vesey street (Corning v. Lowerre, 6 Johns. Ch. 439) or the freight depot (Bar- ney V. Keokuk, 94 U. S. 324, 24 L. Ed. 224)." "The question here presented," said Judge Tracy (p. 174, Am. Rep. p. 156), "is not whether the legislature has the power to regu- TAKING AND INJURING PROPBRTX 355 late and control the public uses of the public streets of the city, but whether it has the power to grant to a railroad corporation au- thority to take possession of such streets and appropriate them to uses inconsistent with and destructive of their continued use as open public streets of the city." [Here follow quotations to the same effect from Lahr v. Elev. R. Co., 104 N. Y. 268, 10 N. E. 528, and Kane v. Elev. R. Co., 125 N. Y. 164, 26 N. E. 278, 11 L. R. A. 640, holding that even apart from express covenant. New York City owned the fee of all streets upon a statutory trust that they should be kept open as public streets.] * * * It would be difficult for words to show more clearly than those quoted from the opinions that such a case as that now before us was not within the scope of the decisions or of the reasons upon which they were founded. The difference between a structure erected for the exclusive use of a railroad and one erected for the general use of the public was sharply defined. It was only the for- mer which the court had in view. That the structure was elevated, and for that reason affected access, light, and air, was an im- portant element in the decisions, but it was not the only essential element. The structures in these cases were held to violate the landowners' rights, not only because they were elevated and there- by obstructed access, light, and air, but also because they were de- signed for the exclusive and permanent use of private corporations. The limitation of the scope of the decision to such structures, erected for such purposes, appears not only in the decisions them- selves, but quite clearly from subsequent decisions of the court of appeals. In the case of Fobes v. Rome, W. & O. R. Co., 121 N. Y. 505, 8 L. R. A. 453, 24 N. E. 919, Judge Peckham, now Mr. Justice Peckham, made the following statement of the effect of the Story Case. Certain portions of it are italicized here for the pur- pose of emphasizing the point now under consideration: "It was not intended in the Story Case to overrule or change the law in regard to steam surface railroads. The case embodied the application of what was regarded as well-established principles of law to a new combination of facts, such facts amounting, as was determined, to an absolute and permanent obstruction in a portion of the public street, and in a total and exclusive use of such portion by the defendant, and such permanent obstruction and total and ex- clusive use, it was further held, amounted to a taking of some por- tion of the plaintiff's easement in the street for the purpose of fur- nishing light, air, and access to his adjoining lot. This absolute and permanent obstruction of the street, and this total and exclusive use of a portion thereof by the defendant were accomplished by the erec- tion of a structure for the elevated railroad of defendant; which structure is fully described in the case as reported. "The structure, by the mere fact of its existence in the street, per- 356 BIGHT OP EMINENT DOMAIN manently and at every moment of the day took away from the plain- tiff some portion of the light and air which otherwise would have reached him, and, in a degree very appreciable, interfered with and took away from him his facility of access to his lot ; such interference not being intermittent and caused by the temporary use of the street by the passage of the vehicles of the defendant while it was operating its road through the street, but caused by the iron posts and by the superstructure imposed thereon, and existing for every moment of the day and night. Such a permanent, total, exclusive, and absolute ap- propriation of a portion of the street as this structure amounted to was held to be illegal and wholly beyond any legitimate or lawful use of a public street. The taking of the property of the plaintiff in that case was held to follow upon the permanent and exclusive nature of the appropriation by the defendant of the public street, or of some portion thereof." The distinction between the erection of an elevated structure for the exclusive use of a private corporation and the same structure for the use of public travel is clearly illustrated in the contrast in the decisions of Reining v. New York, L. & W. R. Co., 128 N. Y. 157, 14 L. R. A. 133, 28 N. E. 640, and Talbot v. New York & H. R. Co., 151 N. Y. 155, 45 N. E. 382. In the first case it was held that the abutting landowner had the right to compensation for the construction of a viaduct in the street for the practically exclusive occupation of a railroad. In the second case it was held that the abutting owner had no right of compensation for the erec- tion of a public bridge with inclined approaches and a guard wall, to carry travel over a railroad, although the structure impaired the access to his land. * * * The trust upon which streets are held is that they shall be de- voted to the uses of public travel. When they, or a substantial part of them, are turned over to the exclusive use of a single per- son or corporation, we see no reason why a state court may not hold that it is a perversion of their legitimate uses, a violation of the trust, and the imposition of a new servitude. But the same court may consistently hold that with the acquisition of the fee, and in accordance with the trust, the city obtained the right to use the surface, the soil below, and the space above the surface, in any manner which is plainly designed to promote the ease, facility, and safety of all those who may desire to travel upon the streets ; and that the rights attached to the adjoining land, or held by contract by its owner, are subordinate to such uses, whether they were fore- seen or not when the street was laid out. In earlier and simpler times the surface of the streets was enough to accommodate all travel. But under the more complex conditions of modern urban life, with its high and populous buildings, and its rapid interurban transportation, the requirements of public travel are largely in- TAKING AND INJURING PROPERTY 357 creased. Sometimes the increased demands may be met by sub- ways and sometimes by viaducts. The construction of either sole- ly for public travel may well be held by a state court to be a rea- sonable adaptation of the streets to the uses for which they were primarily designed. What we might hold on these questions where we had full jurisdiction of the subject, it is not necessary here even to consider. In basing its judgment on the broad, plain, and approved distinc- tion between the abandonment of the street to private uses and its further devotion to public uses, the court below overruled none of its decisions, but, on the contrary, acted upon the principles which they clearly declared. The plaintiff, therefore, has not shown that in his case the state court has changed, to his injury, the inter- pretation of his contract with the city, which it had previously made, and upon which he had the right to rely. * * * Judgment afifirmed. [McKenna, J., gave a dissenting opinion, in which Day, J., con- curred.] RIGNEY V. CHICAGO. (Supreme Court of Illinois, 1882. 102 lU. 64.) [Appeal from a decision of the Appellate Court of the First Dis- trict, affirming a decision of the circuit court of Cook county. Plaintiff owned residential premises on Kinzie street in Chicago, 220 feet east of Halsted street. Defendant city in 1874 construct- ed a viaduct for general street purposes along Halsted street and across Kinzie street, which cut off traffic between these two streets at their intersection, except by a flight of stairs. Halsted street was one of the main thoroughfares of Chicago, and this obstruc- tion reduced the value of plaintiff's property from $5,000 to about $1,700. The defendant owned the streets in fee. Plaintiff sued, under the state Constitution of 1870, for the damage thus caused. The trial court directed a verdict for the defendant, and the Appel- late Court affirmed this. The constitutional provision in question appears in the opinion.] < Mr. Justice Mulkey. * * * Previous to, and at the time of the adoption of the present Constitution, it was the settled doc- trine of this court that any actual physical injury to private prop- erty, by reason of the erection, construction, or operation of a pub- lic improvement in or along a public street or highway, whereby its appropriate use or enjoyment was materially interrupted, or its value substantially impaired, was regarded as a taking of pri- vate property, within the meaning of the Constitution, to the ex- tent of the damages thereby occasioned, and actions for such in- juries were uniformly sustained. 358 EIGHT OF EMINENT DOMAIN This construction, making an actual physical invasion of the property affected the test in every case, excluded from the benefits of the Constitution many cases of great hardship, for, as in the present case, it often happened that while there was no actual physical injury to the property, yet the approaches to it were so cut off and destroyed as to leave it almost valueless. Under this condition of affairs the framers of the present Constitution, doubt- less with a view of giving greater security to private rights by affording relief in such cases of hardship where it had before been denied, declared therein that "private property shall not be taken or damaged for public use without just compensation." The addi- tion of the words "or damaged" can hardly be regarded as acci- dental, or as having been used without any definite purpose. On the contrary, we regard them as significant, and expressive of a deliberate purpose to change the organic law of the state. * * * It is conceded that some little confusion exists with respect to the use of the expression, "physical injury," in connection with the term property; but it is believed this arises mainly from the ambiguous character of the latter term, and doubtless all the ap- parent [ly] conflicting expressions to be found in the opinions of this court upon this subject may be harmonized, upon the theory that the term property, in that connection, is used in different senses. Property, in its appropriate sense, means that dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or subjects, and generally to the exclusion of all others, and doubtless this is substantially the sense in which it is used in the Constitution; yet the term is often used to indicate the res or subject of the property, rather than the prop- erty itself, and it is evidently used in this sense in some of the cases in connection with the expression physical injury, while at other times it is probably used in its more appropriate sense, as 'above mentioned. The meaning, therefore, of the expression "physical injury," when used in connection with the term "prop- erty," would in any case necessarily depend upon whether the term property was used in the one sense or the other. To illus- trate: If the lot and buildings of appellant are to be regarded as property, and not merely the subject of property, as strictly speak- ing' they are, then there has clearly been no physical injury to it; but if by property is meant the right of user, enjoyment and dis- position of the lot and buildings, then it is evident there has been a direct physical interference with appellant's property, and when considered from this aspect, it may appropriately be said the in- jury to the property is direct and physical. * * * Under the Constitution of 1848 it was essential to a right of re- covery, as we have already seen, that there should be a direct physical injury to the corpus or subject of the property, such as TAKING AND INJURING PROPERTY 859 overflowing it, casting sparks or cinders upon it, and the like ; but under the present Constitution it is sufficient if there is a direct physical obstruction or injury to the right of user or enjoyment, by which the owner sustains some special pecuniary damage in ex- cess of that sustained by the public generally, which, by the com- mon law, would, in the absence of any constitutional or statutory provisions, give a right of action. * * * The question then recurs, What additional class of cases did the framers of the new Constitution intend to provide for which are not embraced in the old ? While it is clear that the present Consti- tution was intended to afford redress in a certain class of cases for which there was no remedy under the old Constitution, yet we think it equally clear that it was not intended to reach every pos- sible injury that might be occasioned by a public improvement. There are certain injuries which are necessarily incident to the ownership of property in towns or cities which directly impair the value of private property, for which the law does not, and never has aflforded any relief. For instance, the building of a jail, police station, or the like, will generally cause a direct depreciation in the value of neighboring property, yet that is clearly a case of dam- num absque injuria. So as to an obstruction in a public street, — if it does not practically affect the use or enjoyment of neighboring property, and thereby impair its value, no action will lie. In all cases, to warrant a recovery it must appear there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally. In the absence of any statutory or constitutional provisions on the subject, the common law afforded redress in all such cases, and we have no doubt it was the intention of the framers of the pres- ent Constitution to require' compensation to be made in all cases where, but for some legislative enactment, an action would lie by the common law. The English courts, in construing certain statutes providing compensation for injuries occasioned by public improvements, in which the language is substantially the same as that in our present Constitution, after a most thorough consideration of the question, lay down substantially the same rule here announced. Chamber- land V. West End of London Railway Co., 2 Best & Smith, 605; Beckitt V. Midland Railway Co., h. R. 1 C. P. 241, on appeal 3 C. P. 82; McCarthy v. Metropolitan Board of Works, L. R. 7 C. P. 508. These statutes required compensation to be made where property was "injuriously affected," which the English courts construe as synonymous with the word "damaged." Hall v. Mayor 360 BIGHT OF EMINENT DOMAIN of Bristol, L. R. 2 C. P. 322; East and West India Docks Co. y. Gattke, 3 McN. & G. 155. The rule we have adopted was unanimously sustained by the House of Lords in the McCarthy Case, supra, and is believed to be in consonance with reason, justice, and sound legal principles, and while it has not heretofore been formulated in express terms, as now stated, yet the principles upon which the rule rests are fully recognized in the previous decisions of this court. * * * Judgment reversed. [DickBy, C. J., gave a concurring opinion. ScoTT, Craig, and SheI/Don, JJ., dissented.] CONSTITUTIONAL PROTECTION OF CIVIL BIGHTS 361 CONSTITUTIONAEplRiOTECTION OF CIVIL RIGHTS. '0^ i - I. Liberty 1 .tr^^ ALLGEYER v. LOUISIANA. (Supreme Court of United States, 1897. 165 U. S. 578, 17 Sup. Ot. 427, 41 L. Ed. 832.) [Error to the Supreme Court of Louisiana. A Louisiana statute forbade, under penalty of a fine of $1,000 for each offence, any per- son, firm, or corporation from doing any act in that state to effect,, for himself or for another, insurance on property in the state, in , any marine insurance company which had not complied with the laws of the state., E. Allgeyer & Co. made a contract in New York, with a New York insurance company not doing business in Louisiana, for an open policy of marine insurance for $200,000 upon future shipments of cotton. By the terms of the policy All- geyer was to notify the company from time to time of shipments applicable to the policy, and the sending of such notices was a condition precedent to the attaching of the risk. A separate policy was issued in New York for each risk, the premium to be there paid in cash by Allgeyer. Allgeyer & Co. sent a notice of a ship- ment, under this contract, and remitted the premium from New Orleans to New York. The state court held them liable to the statutory penalty therefor, and this writ of error was taken.] Mr. Justice Peckham. * * * In this case the only act which it is claimed was a violation of the statute in question consisted in sending the letter th ro ugh the mail notifying the company of the property to be covered by the policy already delivered . We have, then, a contract which it is conceded was made outside and beyond the limits of the jurisdiction of the state of Louisiana, being made and to be performed within the state of New York, where the pre- miums were to be paid, and losses, if any, adjusted. The letter of notification did not constitute a contract made or entered into within the state of Louisiana , it was but the performance of an act rendered necessary by tRe provisions of the contract already made between the parties outside of the state. It was a mere no- tification that the contract already in existence would attach to that particular property. In any event, the contract was made in ^ New York, outside; of the jurisdiction of Louisiana, even though ^ the policy was not to attach to the particular property until th^ notification was sent. 1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 199, 206. 362 CONSTITUTIONAL PROTECTION OF CIVIL BIGHTS It is natural that the state court should have remarked that there is in this "statute an apparent interference with the liberty of de- fendants in restricting their rights to place insurance on property of their own whenever and in what company they desired." Such interference is not o nly apparent, but it is real, and we do not fhink that it is justihed for the purpose of upholding what the state says is its policy with regard to foreign irtsurance companies which had not complied with the laws of the state for doing busi- ness within its limits. In this case the company did no business within the state, and the contracts were not therein made. The supreme court of Louisiana says that the act of writing within that state the letter of notification was an act therein done to effect an insurance on property then in the state, in a marine insurance company which had not complied with its laws, and such act was therefore prohibited by the statute. As so construed, we think the statute is a violation of the fourteenth amendment of the federal Constitution, in that it deprives the defendants of their liberty without due process of law. The statute which forbids such act does not become due process of law, because it is inconsistent with the provisions of the Constitution of the Union. The "lib- erty" mentioned in that amendment means, not only the right of the citizen to be free from the mere physical restraint of his per- son, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways ; to live and work where he will: to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above men- tioned. It was said by Mr. Justice Bradley, in Butchers' Union Slaugh- terhouse Co. V. Crescent City Live-Stock Landing Co., Ill U. S. 746, at page 762, 4 Sup. Ct. 652, at page 657, 28 L. Ed. 585, in the course of his concurring opinion in that case, that "the right to follow any of the common occupations of life is an inalienable right. It was formulated as such under the phrase 'pursuit of happiness' in the Declaration of Independence, which commenced with the fundamental proposition that 'all men are created equal; that they are endowed by their Creator with certain inalienable rights ; that among these are life, liberty, and the pursuit of hap- piness.' This right is a large ingredient in the civil liberty of the citizen." Again, on page 764 of 111 U. S., and on page 658 of 4 Sup. Ct. (28 L. Ed. 585), the learned justice said: "I hold that the liberty of pursuit — the right to follow any of the ordinary callings of life — is one of the privileges of a citizen of the United States." And again, on page 765 of 111 U. S. and on page 658 of 4 Sup. LIBERTY 363 Ct. (28 h. Ed. 585) : "But if it does not abridge the privileges and immunities of a citizen of the United States to proliibit him from pursuing his chosen calling, and giving to others the exclu- sive right of pursuing it, it certainly does deprive him (to a certain extent) of his liberty ; for it takes from him the freedom of adopt- ing and following the pursuit which he prefers, which, as already intimated, is a material part of the liberty of the citizen." It is true that these remarks were made in regard to questions of mo- nopoly, but they well describe the rights which are covered by the word "liberty," as contained in the fourteenth amendment. Again, in Powell v. Pennsylvania, 127 U. S. 678, 684, 8 Sup. Ct. 992, 995, 1257, 32 L. Ed. 253, Mr. Justice Harlan, in stating the opinion of the court, said: "The main proposition advanced by the defendant is that his enjoyment upon terms of equality with all others in similar circumstances of the privilege of pursuing an ordinary calling or trade, and of acquiring, holding, and selling property, is an essential part of his rights of liberty and property, as guaranteed by the fourteenth amendment. The court assents to this general proposition as embodying a sound principle of con- stitutional law." It was there held, however, that the legislation under consideration in that case did not violate any of the con- stitutional rights of the plaintiff in error. The foregoing extracts have been made for the purpose of show- ing what general definitions have been given in regard to the meanmg of the word "liberty" as used in the amendment, but we_ do not intend to hold that in no such case can the state exercise Its police power. When and how far such power may be legiti- mately exercised with regard to these subjects must be left for determination to each case as it arises. * * * In the privilege of pursuing an ordinary calling or trade, and of acquiring, holding, and selling property, must be embraced the right to make all proper contracts in relation thereto ; and al- though it may be conceded that this right to contract in relation to persons or property or to do business within the jurisdiction of the state may be regulated, and sometimes prohibited, when the '^ contracts or business conflict with the policy of the state as con-/}t gprvipf, * * * o r pay for such property, without ; )ust cause, shall be prima faclq- evidence oi tne intent to injure his employer or landlord or defraud him." LIBBBTT 365 read into the statute itself, that the accused, for the purpose of rebutting the statutory presumption, shall not be allowed to testify "as to his uncommunicated motives, purpose, or intention." Bail- ey V. State, 161 Ala. 77, 78, 49 South. 886. * * * We at once dismiss from consideration the fact that the plaintiff in error is a black man. * * * Thg statute, on its face, makes t no racial discrimination, and the record fails to show its existence in fact. * * * Prima facie evidence is sufficient evidence to outweigh the pre- sumption of innocence, and, if not met by opposing evidence, to support a verdict of guilty. "It is such as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose." Kelly v. Jackson, 6 Pet. 632, 8 L,. Ed. 526. * * * It is not sufficient to declare that the statute does not make it the duty of the jury to convict, where there is no other evidence but the breach of the contract and the failure to pay the debt. The point is that, in such a case, the statute authorizes the jury to con- vict. It is not enough to say that the jury may not accept that evidence as alone sufficient; for the jury may accept it, and they have the express warrant of the statute to accept it as a basis for their verdic|. And it is in this light that the validity of the statute must be determined. * * * While, in considering the natural operation and effect of the statute, as amended, we are not limited to the particular facts of the case at the bar, they present an illuminating illustration. We may briefly restate them. Bailey made a contract to work for a year at $12 a month. He received $15, and he was to work this out, being entitled monthly only to $10.75 of his wages. No one was present when he made the contract but himself and the mana- ger of the employing company. There is not a particle of evidence of any circumstance indicating that he made the contract or re- ceived the money with any intent to miure or defraud his em- ployer. On the contrary, he actually worked for upwards of a month. His motive in leaving does not appear, the only showing being that it was without legal excuse and that he did not repay the money received. For this he is sentenced to a fine of $30 and to imprisonment at hard labor, in default of the payment of the, fine and costs, for 136 days! Was not the case the same in effect as i f the stattite had made it a criminal act to leave the service without just cause and without liquidating the debt ? To say that he has been found guilty of an intent to in jure or" defraud hi s employer, an d not merely for breaking his contract and not paving his debt. IS a distinction without a: difference to Bailey. Consider the situation of the accused under this statutory pre- sumption. If, at the outset, nothing took place but the making of 366 CONSTITUTIONAL PROTECTION OF CIVIL EIGHTS the contract and the receipt of the money, he could show nothing else. If there was no legal justification for his leaving his employ- ment, he could show none. If he had not paid the debt, there was nothing to be said as to that. The law of the state did not permit him to testify that he did not intend to injure or defraud. Unless he were fortunate enough to be able to command evidence of cir- cumstances affirmatively showing good faith, he was helpless. He stood, stripped by the statute of the presumption of innocence, and exposed to conviction for fraud upon evidence only of breach of contract and failure to pay. * * * [After referring to Toney v. State, 141 Ala. 120, 37 South. 332, 67 L. R. A. 286, 109 Am. St. Rep. 23, 3 Ann. Cas. 319:] We can^ not escape the conclusion that, although the statute in terms is to punish fraud, still its natural and inevitable effect is to expose to conviction for crime thos e w ho simply fail or refuse to perform contracts for personal service m liquidation of a debt: and judg- ing its purpose by its effect, that it seeks in this way to provide the means of compulsion through which performance of such service may be secured. The question is whether such a statute is con- stitutional. This court has frequently recognized the general power of every legislature to prescribe the evidence which shall be received, and the effect of that evidence, in the courts of its own government. Fong Yue Ting v. United States, 149 U. S. 698, 749, 13 Sup. Ct. 1016, 37 L. Ed. 905, 925. In the exercise of this power numerous statutes have been enacted providing that proof of one fact shall be prima facie evidence of the main fact in issue; and where the inference is not purely arbitrary, and there is a rational relation between the two facts, and the accused is not deprived of a proper opportunity to submit all the facts bearing upon the issue, it has been held that such statutes do not violate the requirements of due process of law. * * * In this class of cases where the entire subject-matter of the leg- islation is otherwise within state control, the question has been whether the prescribed rule of evidence interferes with the guar- anteed equality before the law, or violates those fundamental rights and immutable principles of justice which are embraced within the conception of due process of law. But where the conduct or fact, the existence of which is made the basis of the statutory pre- sumption, itself falls within the scope of a provision of the federal Constitution, a further question arises. It is apparent that a con- stitutional prohibition cannot be transgressed indirectly by the cre- ation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from constitutional restrictions . And the state may not in this way interfere with matters withdrawn from its LIBERTY 367 authority by the federal Constitution, or subject an accused to conviction for conduct which it is powerless to prescribe. In the present case it is urged that the statute as amended, through the operation of the presumption for which it provides, violates the thirteenth amendment of the Constitution of the Unit- ed States and the act of Congress passed for its enforcement. The thirteenth amendment provides: "Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place sub- ject to their jurisdiction. "Section 2. Congress shall have power to enforce this article by appropriate legislation." Pursuant to the authority thus conferred, Congress passed the act of March 2, 1867 [14 Stat. 546, c. 187), the provisions of which are now found in sections 1990 and 5526 of the Revised Statutes (U. S. Comp. Stat. 1901, pp. 1266, 3715), as follows: * * * * The act of March 2, 1867 (Rev. Stat. §§ 1990 and 5526, supra), was a valid exercise of this express authority. Clyatt v. United States, 197 U. S. 207, 25 Sup. Ct. 429, 49 I^. Ed. 726. * * * The fact that the debtor contracted to perform the labor which is sought to be compelled does not withdraw the attempted en- forcement from the condemnation of the statute. The full intent of the constitutional provision could be defeated with obvious fa- cility if, through the guise of contracts under which advances had been made, debtors could be held to compulsory service . It is the compulsion of the service that the statute inhibits, for when that occurs, the condition of servitude is created, which would be not less involuntary because of the original agreement to work out the indebtedness. The contract exposes the debtor to liability for the loss due to the breach, but not to enforced labor. This has been so clearly stated by this court in the Case of Clyatt, supra, that discussion is unnecessary. The court there said: "The con- stitutionality and scope of sections 1990 and 5526 present the first questions for our consideration. They prohibit peonage. What * "Sec. 1990. The holding of any person to service or labor under the sys- tem known as peonage is abolistied and torever proMblted In the territory o? New Mexico, or in any other territory or state of the United States ; and all acts, laws, resolutions, orders, regulations, or usages of the territory of New Mexico, or of any other territory or state, which have heretofore established, maintained, or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directlvor indirectly, the volun- tary or involuntary service or labor of any persons as peons, in liauldat lnTi nf a_n y fiebt or obligation, or otherwise, are declared null and void ." """Sec. 5526. Every person who holds, arrest^, returns, or cause's to be held, arrested, or returned, or in any manner aids in the arrest or return, of any person to a condition of peonage, shall be punished by, a fine of not less than one thousand nor more than five thousand dollars, or by imprisonment not less than one year nor more than five years, or by both." 368 CONSTITUTIONAL PROTECTION OF CIVIL EIGHTS is peonage? It may be defined as a status or condition of com- pulsory service, based upon the indebtedness of the peon to the master . The basal fact is indebtedness. * * * Peonage is sometimes classified as voluntary or involuntary, but this implies simply a difference in the mode of origin, but none in the character of the servitude. The one exists where the debtor voluntarily contracts to enter the service of his creditor. The other is forced. ' upon the debtor bv some provision of law. But peonage, however '* created, is compulsory service, involuntary servitude. The peon ' can release himself therefrom, it is true, by the payment of the debt, but otherwise the service is enforced. A clear distinction exists between peonage and the voluntary performance of labor or rendermg of services in payment nf a debt. In the latter case the debtor, though contracting to pay his indebtedness by labor ■" or service, and subject like any other contractor to an action for damages for breach of that contract, can elect at any time to break It, and no law or force compels performance or a continuance of t he service. We need not stop to consider any possible limits or . exceptional cases, such as the service of a sailor (Robertson v. E*Baldwin, 165 U. S. 275, 17 Sup. Ct. 326, 41 L. Ed. 715), or the obligations of a child to its parents, or of an apprentice to his • • master, or the power of the legislature to make unlawful and pun- ish criminally an abandonment by an employee of his post of labor in any extreme cases. That which is contemplated by the statute is compulsory service to secure the payment of a debt." 197 U. S. 215, 216, 25 Sup. Ct. 430, 49 L. Ed. 726. The act of Congress, nullifying all state laws by which it should be attempted to enforce the "service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise," necessarily embraces all legislation which seeks to compel the service or labor by making it a crime to refuse or fail to perform it. Such laws would furnish the readiest means of compulsion. The thirteenth amendment prohibits involuntary servitude except as ■ punishment for crime. But the exception, allowing full latitude for the enforcement of penal laws, does not destroy the prohibition. It does not permit slayery or involuntary serv i tude to be estab- lished or maintained through the operation ot the crimmal law by making it a crime to refuse to submit to the one or to render the service which would constitute the other. The state may impose involuntary servitude as a punishment for crime, but it may not compel one man to labor for another in payment of a debt, by pun- ishing him as a criminal if he does not perform the service or pay the debt. If the statute in this case had authorized the employing company to seize the debtor, and hold him to the service until he paid the $15, or had furnished the equivalent in labor, its invalidity would LIBERTY 369 not be questioned. It would be equally clear that the state could not authorize its constabulary to prevent the servant from escap- ing, and to force him to work out his debt. But the state could not avail itself of the sanction of the criminal law to supply the com- pulsion any more than it could use or authorize the use of physical force. "In contemplation of the law, the compulsion to such serv- ice by the fear of punishment under a criminal statute is more powerful than any guard which the employer could station." Ex parte Hollman, 79 S. C. 22, 60 S. E. 24, 21 L. R. A. (N. S.) 249, 14 Ann. Cas. 1109. What the state may not do directly it mav not do indirectly. ( If it cannot punish the servant as a criminal for the mere failure or refusal to serve without paving his debt, it is not permitted to accomplish the same result by creating a statutory presumption which, upon proof of no other fact, exposes him to conviction and punishment. * * * There is no more important concern than to safeguard the freedom of labor upon which alone can enduring prosperity be based. * * * The act of Congress deprives of effect all legislative measures of any state through which, directly or indircetly, the prohibited thing, to wit, compulsory service to secure the payment of a debt, may be established or maintained; and we conclude that section 4730, as amended, of the Code of Alabama, in so far as it makes the refusal or failure to perform the act or service, without refunding the money or paying for the property received, prima facie evidence of the commission of the crime which the section defines, is in conflict with the thirteenth amendment, and the legislation authorized by that amendment, and is therefor invalid. * * * Judgment reversed. [Holmes, J., gave a dissenting opinion, in which Lurton, J., concurred, on the ground that the thirteenth amendment did not forbid a state to make breach of contract a crime with the usual penal consequences. "Compulsory work for no private master in a jail is not peonage" (219 U. S. 247, 31 Sup. Ct. 153, 55 h. Ed. 191).] Hall Oases Const.L. — 24 370 CONSTITUTIONAL PROTECTION Olf CIVIL RIGHTS II. Equal Protection of the Laws ' Ex parte VIRGINIA. (Supreme Court of United States, 1880. 100 TJ. S. 339, 25 L. Ed. 676.) [Petition for a writ of habeas corpus. One Coles, a county court j udge of Virginia, was indicted in the federal District Court of that state and arrested, charged with violating the statute quoted m the opinion below, in that he excluded colored persons from the jury lists made out by him, on account of their race, color, and previous condition of servitude. The state statute under which he acted made no discrimmation against the colored race, but re- quired him to prepare a jury list of inhabitants of the county that in his opinion were "well qualified to serve as jurors," "of sound judgment and free from legal exception." He and the state of Virginia both sought his discharge by habeas corpus.] Mr. Justice Strong. * * * [After holding the petition to be within the appellate jurisdiction of the court:] The indictment -and bench-warrant, in virtue of which the peti- tioner Coles has been arrested and is held in custody, have their justification, — if any they have, — in the Act of Congress of March 1, 1875, sect. 4. 18 Stat., part 3, 336. That section enacts that " no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any state, on ac- count of race, color, or previous condition of servitude ; and any_ officer or other person charged with anv duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than $5.- 000." The defendant has been indicted for the misdemeanor de- scribed in this act, and it is not denied that he is now properly held in custody to answer the indictment, if the Act of Congress was warranted by the Constitution. The whole merits of the case are involved in the question, whether the act was thus warranted. [The provisions of the Constitution that relate to this subject are found in the thirteenth and fourteenth amendments.] * * * One great purpose of these amendments was to raise the colored race from that condition of inferiority and servitude in which most of them had previously stood, into perfect equality of civil rights with all other persons within the jurisdiction of the states. They were intended to take away all possibility of oppression by » For discussion of principles, see Black, Const. Law (3d Ed.) § 209. EQUAL PROTECTION OF THE LAWS 371 law because of race or color . They were intended to be, what they ^ really are, limitations of the power of the states and enlargements of the power of Congress. . They are to some extent declaratory of rights, and though in form prohibitions, they imply immunities, ' such as may be protected by congressional legislation. * * * This protection and this guarantee, as the fifth section of the amendment expressly ordains, may be enforced by Congress by means of appropriate legislation. All of the amendments derive much of their force from this latter provision. It is not said the judicial power of the general govern- ment shall extend to enforcing the prohibitions and to pr otecting, the rights and immunities guaranteed. It is not said that branch of the government shall be authorized to declare void any action of a state in violation of the prohibitions. It is the power of Con- gress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislatio n. Some legislation is contemplated to make the amendments fully effective. Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submis- sion to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal pro- tection of the laws against state denial or invasion, if not prohibit- ed, is brought within the domain of congressional power. * * * We have said the prohibitions of the fourteenth amendment are addressed to the states. They are, "No state shall make or en- force a law which shall abridge the privileges or immunities of citizens of the United States, * * * nor deny to any person within its jurisdiction the equal protection of the laws." They have reference to actions of the political body denominated a state, by whatever instruments or in whatever modes that action may be taken. A state acts by its legislative, its executive, or its judi- cial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the state, or of the officers or agents by whom its powers are exerted, shall deny to any person yyithin its jurisdiction the equal protection of the laws.. Whoever, by virtue of public position under a state govern- ment, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the state, and is clothed with the state's power, his act is that of the state . This must be so, or the constitutional prohibition has no meanmg. Then the state has clothed one of its agents with power to annul or to evade it. * * * [Ken- tucky V. Dennison, 24 How. 66, 16 L. Ed. 717, is here distinguished, on the ground that the fourteenth amendment, § 5, expressly au- thorizes congressional enforcement.] 372 CONSTITUTIONAL PROTECTION OF CIVIL EIGHTS We do not perceive how holding an office under a state, and claiming to act for the state, can relieve the holder from obligation to obey the Constitution of the United States, or take awav the power of Cona^ress to punish his disobedience. It was insisted during the argument on behalf of the petitioner that Congress cannot punish a state judge for his official acts; and it was assumed that Judge Coles, in selecting the jury as he did, was performing a judicial act. This assumption cannot be admitted. Whether the act done by him was judicial or not is to be determined by its character, and not by the character of the 'agent. Whether he was a county judge or not is of no importance. The duty of selecting jurors might as well have been committed to a private person as to one holding the office of a judge. It often is given to county commissioners, or supervisors, or asses- sors. In former times, the selection was made by the sheriff. In such cases, it surely is not a judicial act, in any such sense as is contended for here. It is merely a ministerial act, as much so as the act of a sheriff holding an execution, in determining upon what piece of property he will make a levy, or the act of a roadmaster in selecting laborers to work upon the roads. That the jurors are selected for a court makes no difference. So are court-criers, tip- staves, sheriffs, &c. Is their election or their appointment a ju- dicial act? But if the selection of jurors could be considered inany case a judicial act, can the act charged against the petitioner be consid- ered such when he acted outside of his authority and in direct vio- lation of the spirit of the state statute? That statute gave him no authority, when selecting jurors, from whom a panel might be drawn for a circuit court, to exclude all colored men merely be- cause they were colored. Such an exclusion was not left within the limits of his discretion. It is idle, therefore, to say that the Act of Congress is unconstitutional because it inflicts penalties upon state judges for their judicial action. It does no such thing. * * * Petition denied. [Field, J., gave a dissenting opinion, in which Clifford, J., concurred, upon the ground, among others, that the act of select- ing state jurors was an act of judicial discretion and not subject to federal control.] EQUAL PROTECTION OF THE LAWS 373 CIVIL RIGHTS CASES. (Supreme Court of United States, 1883. 109 U. S. 3, 3 Sup. Ot. 18, 27 t. Ed. 835.) [Writs of error to federal Circuit Courts and certificates of di- vision of opinion among the judges below in a number of cases in- volving the constitutionality of the act of Congress known as the Civil Rights Act. Various colored persons had been denied by the proprietors of hotels, theaters, and railway companies the full en- joyment of the accommodations thereof, for reasons other than those excepted by said statute, and those proprietors had been. indicted or sued tor the penalty prescribed by the act. The act provided (see note below).*] Mr. Justice Bradley. * * * Are these sections constitution- al? The first section, which is the principal one, cannot be fairly understood without attending to the last clause, which qualifies the preceding part. The essence of the law is, not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances arid theaters; but that such enjoyment shall not be subject to any conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude. In other words, it is the purpose of the law to declare that, in the enjoyment of the accommodations and privileges of inns, public conveyances, theaters, and other places of public amusement, no distinction shall be made between citizens of dif- ferent race or color, or between those who have, and those who have not, been slaves. Its effect is to declare that in all inns, public conveyances, and places of amusement, colored citizens, whether formerly slaves or not, and citizens of other races, shall have the same accommodations and privileges in all inns, public conveyances, and places of amusement, as are enjoyed by white citizens: and vice versa. The second section makes it a penal offense in any person to deny to any citizen of any race or color, regardless of previous servitude, any of the accommodations or privileges mentioned in the first section. Has congress constitutional power to make such a law ? Of « "Section 1. That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, ad- vantages, facilities, and privileges of inns, public conveyances on land or wa- ter, theaters, and other places of public amusement ; subject only to the con- ditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of ^ny previous condition of servitude. "Sec. 2. That any person who shall violate the foregoing section by denv- ing to any citizen, except for reasons by law applicable to citizens of every race arid color, and rega,rdless ot any previous condition of servitude, the full enjoyment of any of the" aforesaid accommodations, etc., shall for each offence fort'elt the sum of S500 to the person agyieved and be guilty of a misde^. meanor. these remedies being enforceable in the alternative. 374 CONSTITUTIONAL PROTECTION OF CIVIL RIGHTa course, no one will contend that the power to pass it was contained in the Constitution before the adoption of the last three amend- ments. The power is sought, first, in the fourteenth amendment, and the views and arguments of distinguished senators, advanced while the law was under consideration, claiming authority to pass it by virtue of that amendment, are the principal arguments ad- duced in favor of the power. We have carefully considered those arguments, as was due to the eminent ability of those who put them forward, and have felt, in all its force, the weight of au- thority which always invests a law that congress deems itself com- petent to pass. But the responsibility of an independent judg- ment is now thrown upon this court; and we are bound to exer- cise it according to the best lights we have. The first section of the fourteenth amendment, — which is the one relied on, — after declaring who shall be citizens of the United States, and of the several states, is prohibitory in its character, and prohibitory upon the states. It declares that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." It is state action of a particular charac; ter that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all state legislation, and state action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws. It not only does this, but, in order that the national will, thus declared, may not be a mere brutum fulmen . the last section of the amend- ment invests congress with power to enforce it by appropriate leg- islation. To enforce what? To enforce the prohibition. To adopt ^.appropriate legislation for correcting the efifects of such prohibited r state law and state acts, and thus to render them effectually null, ' void, and innocuous. This is the legislative power conferred upon congress, and this is' the whole of it. It does not invest congress with power to legislate upon su bjects which are within the domain of stat e legisl ation; but to provide modes ol relief against state legislation, or state action, of the kind referred to. It does not authorize congress to create a code of municipal law for the reg- ulation of private rights; but to provide modes of redress against the operation of state laws, and the action of state officers, execu- tive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the fourteenth amendment; but they EQUAL PEOTECTION OF THE LAWS 375 are secured by way of prohibition against state laws and state pro- ceedings affecting those rights and privileges, and by power given to congress to legislate for the purpose of carrying such prohibi- tion into effect; and such legislation must necessarily be predi- cated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect. A quite full discussion of this aspect of the amendment may be found in U. S. V. Cruikshank, 92 U. S. 542, 23 L. Ed. 588, Virginia v. Rives, 100 U. S. 313, 25 L. Ed. 667, and Ex parte Virginia, 100 U. S. 339, 25 L. Ed. 676. An apt illustration of this distinction may be found in some of; the provisions of the original Constitution. Take the subject of contracts, for example. The Constitution prohibited the states from passing any law impairing the obligation of contracts . This did not give to congress power to provide laws for the general enforcement of contracts : nor power to invest the courts of the United States with jurisdiction over contracts, so as to enable par- ties to sue upon them in those courts. It did, however, give the power to provide remedies by which the impairment of contracts by state legislation might be counteracted and corrected : and this power was exercised. The remedy which congress actually provided was that contained in the twenty-fifth section of the judi- ciary act of 1789 [1 Stat. 85], giving to the Supreme Court of the United States jurisdiction by writ of error to review the final de- cisions of state courts whenever they should sustain the validity of a state statute or authority, alleged to be repugnant to the Con- stitution or laws of the United States. By this means, if a state law was passed impairing the obligation of a contract, and the state tribunals sustained the validity of the law, the mischief could be corrected in this court. The legislation of congress, and the proceedings provided for under it, were corrective in their charac- ter. No attempt was made to draw into the United States courts the litigation of contracts generally, and no such attempt would have been sustained. We do not say that the remedy provided was, the only one that might have been provided in that case. Probably congress had power to pass a law giving to the courts of the United States direct jurisdiction over contracts alleged to be impaired by a state law; and, under the broad provisions of the act of March 3, 1875 [18 Stat. 470, c. 137], giving to the circuit courts jurisdiction of all cases arising under the Constitution and laws of the United States, it is possible that such jurisdiction now exists. But under that or any other law, it must appear, as well by allegation as proof at the trial, that the Constitution had been violated by the action of the state legislature. Some obnoxious state law passed, or that might be passed, is necessary to be as^ sumed in order to lay the foundation of any federal remedy in the 376 CONSTITUTIONAL PKOTECTION OF CI¥IL RIGHTS case, and for the very sufficient reason that the constitutional pro- hibition is against state laws impairing the obligation of contracts. And SO in the present case, until some state law has been passed, or some state action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected hv the fourteenth amendment, no legislation of the United States undey said amendment, nor any proceeding under such legislation, can be called into activity, for the prohibitions of the amendment are against state laws and acts done under state authority.. Of course, legislation may and should be provided in advance to meet the exigency when it arises, but it should be adapted to the mischief and wrong which the amendment was intended to provide against ; and that is, state laws or state action of some kind adverse to the rights of the citizen secured by the amendment. Such legislation cannot properly cover the whole domain of rights appertaining to life, liberty, and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. P It would bp tn makf rnn^ress take the place of the state legisla,- tures and to supersede them, it is absurd to affirm that, because " the rights of life, liberty, and property (which include all civil rights that men have) are by the amendment sought to be pro- tected against invasion on the part of the state without due process wof law, congress may, therefore, provide due process of law for 1 their vindication in every case; and that, because the denial by a state to any persons of the equal protection of the laws is pro- hibited by the amendment, therefore congress may establish laws for their equal protection. In fine, the legislation which congress, t. is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation.: that is. such, as may be nec.es.sary and proper for counteracting such laws as the states may adopt or enforce, and which by the amendment they are prohibited from making or enforcing, or such acts and proceed- ings as the states may commit or take, and which by the amend- ment they are prohibited from committing or taking. It is not necessary for us to state, if we could, what legislation would be proper for congress to adopt. It is sufficient for us to examine whether the law in question is of that character. An inspection of the law shows that it makes no reference what- ever to any supposed or apprehended violation of the fourteenth amendment on the part of the states. It is not predicated on ^iny such view. It proceeds ex directo to declare that certain acts com- mitted by individuals shall be deemed offenses, and shall be prose- cuted and punished by proceedings in the courts of the United States. It does not profess to be corrective of any constitutional wrong committed by the states: it does not make its operation EQUAL PROTECTION OP THE LAWS 37T to depend upon any such wrong committed. It applies equally to cases ansmg m states which have the justest laws respecting the personal rights of citizens, and whose authorities are ever ready to enforce such laws as to those which arise in states that may have violated the prohibition of the amendment. In other words, it steps into the domain of local jurisprudence, and lavs down rules for the conduct of individuals in society towards each other, and imposes sanctions for the enforcement of those rules, without re- ferring in any manner to any supposed action of the state or its., authorities. If this legislation is appropriate for enforcing the prohibitions of the amendment, it is difficult to see where it is to stop. Why may not congress, with equal show of authority, enact a code of laws for the enforcement and vindication of all rights of life, lib- erty, and property? If it is supposable that the states may deprive persons of life, liberty, and property without due process of law. ( and the amendment itself does suppose this.) why should not con- ' gress proceed at once to prescribe due process of law for the pro- ^ tection of every one of these fundamental rights, in every possi- ble case, as well as ic pr escribe equal privileges in inns, public conveyances, and theaters. The truth is that the implication of a. power to legislate in this manner is based upon the assumption that if the states are forbidden to legislate or act m a particular way on a particular, subject, and power is conferred upon congress to enforce the prohibition, this gives congress power to legislate generally upon that subject, and not merely power to provide modes of redress against such state legislation or action . The as- sumption IS certainly unsound. I t is repugnant to' the tenth amendment of the Constitution, which declares that powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to. the people. We have not overlooked the fact that the fourth section of the act now under consideration has been held by this court to be con- stitutional. That section declares "that no citizen, possessing all other qualifications which are or may be prescribed by law, shall be disqualified for service as grand or petit juror in any court of the United States, or of any state, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid, shall, on conviction thereof, be deemed guilty of a mis- demeanor, and be fined not more than five thousand dollars." In Ex parte Virginia, 100 U. S. 339, 25 L. Ed. 676, it was held that an indictment against a state officer under this section for ex- cluding persons of color from the jury list is sustainable. But 378 CONSTITUTIONAL PROTECTION OF CIVIL BIGHTS a moment's attention to its terms will show that the section is entirely corrective in its character. Disqualifications for service i on juries are onlv created bv the law, and the first part of the sec- tion is aimed at certain disqualifying laws, namely, those which make mere race or color a disqualification; and the second clause is directed against those who, assuming to use the authority of the state government, carry into effect such a rule of disqualification. I In the Virginia case, the state, through its officer, enforced a rule of disqualification which the law was intended to abrogate and ■ counteract. Whether the statute-book of the state actually laid down any such rule of disqualification or not, the state, through Its officer, enforced such a rule ; and it is against such state action, ^ through its offi,cers and agents, that the last clause of the section is directed . This aspect of the law was deemed sufficient to divest it of any unconstitutional character, and makes it differ widely from the first and second sections of the same act which we are now considering. * * * [After distinguishing the so-called "Civil Rights Bill" of 1866 and 1868 (14 Stat. 27; 16 Stat. 140), which made guilty of a mis- demeanor any person who, under color of any law, statute, ordi- nance, regulation or custom, subjected any inhabitant of a state or territory to the deprivation of any of certain enumerated im- portant civil rights:] The civil rights bill here referred to is anal- ogous in its character to what a law would have been under the original Constitution, declaring that the validity of contracts should not be impaired, and that if any person bound by a con- tract should refuse to comply with it under color or pretense that it had been rendered void or invalid by a state law, he should be liable to an action upon it in the courts of the United States, with the addition of a penalty for setting up such an unjust and uncon- stitutional defense. In this connection it is proper to state that civil rights, such as are guaranteed by the Constitution against state aggression, can- not be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or ex- ecutive proceedings. The wrongful act of an individual, unsup- ported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured '" party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the state, b.or not done under state authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the state for redress. An individual cannot deprive a man of his right _ to vote, to hold property, to buy and sell, to sue in the courts, or to be a witness or a juror; he may, by force or fraud, interfere with the enjoyment of the right in a particular case; he may com- EQUAL PROTECTION OP THE LAWS 379 mit an assault against the person, or commit murder, or use ruf- fian violence at the polls, or slander the good name of a fellow- citizen ; but unless protected in these wrongful acts by some shield of state law or state authority, he cannot destroy or injure tne right ; he will only render himself amenable to satisfaction or~ punishment; and amenable therefor to the laws of the state_ where thewrongful acts are committed. Hence, in all those cases where the Constitution seeks to protect the rights of the citizens against discriminatiye and unjust laws of the state by prohibiting , such laws, it is not indiyidual offenses, but abrogation and denial of rights, which it denounces, and for which it clothes the congress with power to provide a remedy. This abrogation and denial of rights, for which the states alone were or could be responsible, was the great seminal and fundamental wrong which was intended to be remedied. And the remedy to be provided must necessarily be predicated upon that wrong. It must assume that in the cases _ provided for, the evil or wrong actually committed rests upon some_ state law or state authority for its excuse and perpetration. Of course, these remarks do not apply to those cases in which congress is clothed with direct and plenary powers of legislation over the whole subject, accompanied with an express or implied denial of such power to the states, as in the regulation of com- merce with foreign nations, among the several states, and with the Indian tribes, the coining of money, the establishment of post- offices and post-roads, the declaring of war, etc. In these cases congress has power to pass laws for regulating the subjects speci- fied, in every detail, and the conduct and transactions of individ- uals in respect thereof. But where a subject is not submitted to the gen eral legislative power of congress, but is only submitted thereto for the purpose of rendering effective some prohibition against particular state legislation or state action in reference to that subject, the power given is limited by its object, and any leg- islation by congress in the matter must necessarily be corrective in its character, adapted to counteract and redress the operation of such prohibited state laws or proceedings of state officers . If the principles of interpretation which we have laid down are correct, as we deem them to be, — and they are in accord with the principles laid down in the cases before referred to, as well as in the recent case of U. S. v. Harris [106 U. S. 629, 1 Sup. Ct. 601, 27 ly. Hd. 290], — it is clear that the law in question cannot be sus- tained by any grant of legislative power made to congress by the fourteenth amendment . That amendment prohibits the states from denying to any person the equal protection of the laws, and declares that cohgress shall have power to enforce, by appropriate legislation, the provisions of the amendment. The law in question, without any reference to adverse state legislation on the subject. 380 CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS declares that all persons shall be entitled to equal accommodations and privileges of inns, public conveyances, and places of pubhc amusement, and imposes a penalty upon any individual who shall ^ deny to any citizen such equal accommodations and privileges. This is not corrective legislation; it is primary and direct; it takes immediate and absolute possession of the subject of the right of admission to inns, public conveyances, and places of amusement. . It supersedes and displaces state legislation on the same subject, or only a llows it pprmi'ggi Vp fnrce. It ignores such legislation, and assumes that the matter is one that belongs to the domain of na- tional regulation. Whether it would not have been a more effective protection of the rights of citizens to have clothed congress with plenary power over the whole subject, is not now the question. What we have to decide is. whether such plenary power has been conferred upon congress by the fourteenth amendment, and, in our judgment, it has not . * ^ ^ [Portions of the opinion be- low this point, dealing with the thirteenth amendment, are omit- ted.] We must not forget that the province and scope of the thir- teenth and fourteenth amendments are different: the former sim- ply abolished slavery : the latter prohibited the states from abridg- ing the privileges or immunities of citizens of the United States, from depriving them of life, liberty, or property without due pro- cess of law, and from denying to any the equal protection of the laws. The amendments are different, and the powers of congress under them are different. What congress has power to do under one, it may not have power to do under the other. Under the thirteenth amendment, it has only to do with slavery and its inci- dents. Under the fourteenth amendment, it has power to counter- act and render nugatory all state laws and proceedings which have the effect to abridge any of the privileges or immunities of citi- zens of the United States; or to deprive them of life, liberty, or property without due process of law, or to deny to any of them ' the equal protection of the laws. Under the thirteenth amendment the legislation, so far as necessary or proper to eradicate all forms ' and incidents of slaverv and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether ' sanctioned by state legislation or not; under the fourteenth, as ). we have already shown, it must necessarily be, and can only be. corrective in its character, addressed to counteract and afford re- lief against state regulations or proceedings ! ^ * * Innkeepers and public carriers, by the laws of all the states, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith apply for them. If the laws themselves make any un just discrimination, amenable to the prohibitions of the TT'. — Tt: 1 - : ■ : - • •— '— — — ■ EQUAL PROTECTION OF THE LAWS 881 fourteenth amendment, congress has full power to afford a rem- edy under that amendment and in accordance with it. When a man has emerged from slavery, and by the aid of benef-^ icent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his eleva- tion when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a. man, are to be protected in the ordinary modes by which other men's rights are protectecT ^ ^ ^ On the whole, we are of opinion that no countenance of author- ity for the passage of the law in question can be found in either the thirteenth or fourteenth amendment of the Constitution; and no other ground of authority for its passage being suggested, it must necessarily be declared void, at least so far as its operation in the several states is concerned. Judgment accordingly. [Harlan, J., gave a dissenting opinion.] BARBIER v. CONNOLLY (1885) 113 U. S. 27, 30-32, 5 Sup. Ct. 357, 28 L. Ed. 923, Mr. Justice Field (" upholding an ordinance of San Francisco, the contested part of'which appears in the quo- tation below) : "That fourth section, so far as it is, involved in the case before the police judge, was simply a prohibition tn carry nn the washing and ironing of clothes in public laundries and wash-houses, within certain prescribed limits of the city and county, from ten o'clock at night until six o'clock on the morning of the following day. The prohibition against labor on Sunday is not involved. The pro- vision is purely a police regulation within the competency of any municipality possessed of the ordinary powers belonging to such bodies. And it would be an extraordinary usurpation of the au- thority of a municipality, if a federal tribunal should undertake to ■ supervise such regulations. It may be a necessary measure of pre- caution in a city composed largely of wooden buildings like San Francisco, that occupations in which fires are constantly required, should cease after certain hours at night until the following morn- ing ; and of the necessity of such regulations the municipal bodies are the exclusive judges ; at least any correction of their action in such matters can come only from state legislation or state tribu- nals. The same municipal authority which directs the cessation of labor must necessarily prescribe the limits within which it shall be enforced, as it does the limits in a city within which wooden buildings cannot be constructed. There is no invidious discrimina- , tion against any one within the "prescribed limits by such regu- lat ioni , . There is none in the regulation under consideration. The 382 CONSTITUTIONAL PEOTECTION OF CIVIL RIGHTS specification of the limits within which the business cannot be car- ried on without the certificates of the health officer and board of_ fire wardens is merely a de s ignation of the portion of the city in which the precautionary measures against fire and to secure proper drainage must be taken for the public health and safety. It is not (ilegislation discriminating against any one. All persons engaged in the same business within it are treated alike; are subject to the same restrictions and are entitled to the same privileges under similar conditions. "The fourteenth amendment, in declaring that no state "shall deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,' undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security- should be given to all under like circumstances in the enjoyment of their personal and civil rights ; that all persons should be equal- ly entitled to pursue their happiness and acquire and enjoy prop- erty; that they should have like access to the courts of the coun- try for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts ; that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits by others under like circumstances ; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition, and that in the adminis- tration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like of- fences. But neither the amendment — broad and comprehensive as it is — nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power, to pre- scribe regulations to promote the health, peace, morals, education. and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity . From the very necessities of society, legis- lation of a special character, having these objects in view, must often be had in certain districts, such as for draining marshes and irrigating arid plains. Special burdens are often necessary for general benefits — for supplying water, preventing fires, lighting districts, cleaning streets, opening parks, and many other objects. Regulations for these purposes may press with more or less weight upon one than upon another, but they are designed, not to impose unequal or unnecessary restrictions upon any one, but to pro- mote, with as little individual inconvenience as possible, the gen- eral good. Though in many respects, necessarily special in their character, t hey do not furnish just ground of complaint if they operate alike upon all persons and property under the same cir7 EQUAL PROTECTION OF THE LAWS 383 cumstanc es and conditions. Class legislation, discriminating agiainst some and favorinfy others, is prohib ited, but legislation which in carrying out a public purpose, is limited in its applica^ tion, if within the sphere of its operation it affects alike all perso ns similarly situated, is not within the amendment?' GULF, C. & S. F. RY. CO. v. ELLIS. (Supreme Court of United States, 1897. 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666.) [Error to the Supreme Court of Texas. A Texas statute provid- ed that when any person, having a valid claim not exceeding $50 against a railway corporation for personal service or labor, or for damages or overcharges on freight, or for injuries to stock by trams, should present such claim to the company under oath, and such claim should remain unpaid more than 30 days thereafter, the claimant mi^ht sue : and if he finally obtained judgment for the full amount of said claim he should be entitled in addition to an attor- nev fee of not over $10. _ Ellis, after complying with this statute, obtained judgment against the defendant company for $50 for a colt killed by it, and for a $10 attorney fee. The judgment for the attorney fee was appealed by defendant through two intermediate appellate courts to the state Supreme Court and was there af- firmed.] Mr. Justice BrEwer. The single question in this case is the con7 stitutionalitv of the act allowing attorney fees. The contention is that it operates to deprive the railroad companies of property with- out due process of law, and denies to them the equal protection of ' the law, in that it singles them out of all citizens and corporations, t and requires them to pay in certain cases attorney fees to the par- ■ ties successfully suing them, while it gives to them no like or cor- responding benefit. Only against railroad companies is such exac- tion made, and only in certain cases. * * * While good faith and a knowledge of existing conditions on the part of a legislature is to be presumed, yet to carry that presump- tion to the extent of always holding that there must be some un- disclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminating legislation is to make the protecting clauses of the fourteenth amendment a mere rope of sand, in no manner restraining state action. * * * But it is said that it is not within the scope of the fourteenth / amendment to withhold from states the power of classification, and ^ that, if the law deals alike with all of a certain class, it is not ob- 7 noxious to the charge of a denial of equal protection. While, as a * general proposition, this is undeniably true, * * * yet it is . 384 CONSTITUTIONAL PROTECTION OF CIVIL EIGHTS equally true t hat such classification cannot be made arbitrarily. The state may not say that all white men shall be subjected to the payment of the attorney's fees of parties successfully suing them, and all black men not. It may not say that all men beyond a cer- "tain age shall be alone thus subjected, or all men possessed of a certain wealth. These nri^ distinr tmng whiVIn ijo not furnish any^ L grooer basis for the attempted classification. That must always rest upon some difference which bears a reasonable and iust rela- tion to the act in respect to which the classification is proposed, and can never be made arbitrarily, and without anv such basis. As well said by Black, J., in State v. Loomis. 115 Mo. 307, 314, 22 S. W. 350, 351, 21 Iv. R. A. 789, in which a statute making it a mis- demeanor for any corporation engaged in manufacturing or mining to issue in payment of the wages of its employes any order, check, etc., payable otherwise than in lawful money of the United States, unless negotiable and redeemable at its face value in cash or in goods and supplies at the option of the holder at the store or other place of business of the corporation, was held class legislation and void : "Classification for legislative purposes must have some rea- sonable basis upon which to stand. It must be evident that differ- ences which would serve for a classification for some purposes fur- nish no reason whatever for a classification for legislative purposes. The differences which will support class legislation must be such as, in the nature of things, furnish a reasonable basis for separate laws and regulations. Thus the legislature may fix the age at which persons shall be deemed competent to contract for them- selves, but no one will claim that competency to contract can be made to depend upon statute or color of the hair. Such a classi- fication for such a purpose would be arbitrary, and a piece of legis- lative despotism, and therefore not the law of the land." * * * In Bell's Gap R. Co. v. Pennsylvania. 134 U. S. 232, 10 Sup. Ct. 533, 33 L,. Ed. 892, the question was presented as to the power of the state to classify for purposes of taxation, and while it was con- ceded that a large discretion in these respects was vested in the various legislatures, the fact of a limit to such discretion was rec- ognized, the court, by Mr. Justice Bradley, saying, on page 237, 134 U. S., and page 535, 10 Sup. Ct. (33 L. Ed. 892) : "All such regu- lations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the state legislature or the people of the state in framing their con- stitution. But clear and hostile discriminations against particular persons and classes, especially such as are of an unusual character, unknown to the practice of our governments, might be obnoxious to the constitutional prohibition." f' It is. of course, proper that every debtor should pay his debts, and there might be no impropriety in giving to every successful suitor attorney's fees. Such a provision would bear a reasonable EQUAL PROTECTION OF THE LAWS 385 relation to the delinquency of the debtor, and would certainly cre- ate no inequality of right or protection. But bef ore a distinction can be made between debto'rs. and one be punished for a failure to pay his debts, while another is permitted to become in like manner delinquent without any punishment, there must be some difference i n the obligation to pay, some reason why the duty o f payment is more imperative in the one instance than in the other. If it be said that this penalty is cast only upon corporations, that to them special privileges are granted, and therefore upon them special burdens may be imposed, it is a sufficient answer to sav that the penalty is not imposed upon all corporations. The bur- den does not go with the privilege. Only railroads of all corpora- tions are selected to bear this penalty. The rule of equality is ignored. It may be said that certain corporations are chartered for charita- ble, educational, or religious purposes, and abundant reason for not visiting them with a penalty for the nonpayment of debts is found in the fact that their chartered privileges are not given for pecun- iary profit. But the penalty is not imposed upon all business corr gorations, all chartered for the purpose of private gain. The bank- ing corporations, the manufacturing corporations, and others like them, are exempt. Further, the penalty is imposed, not upon all corporations charged with the quasi public duty of transportation, but only upon those charged with a particular form of that duty. So the classification is not based on any idea of special privileges by way of incorporation, nor of special privileges given thereby for purposes of private gain, nor even of such privileges granted for the discharge of one general class of public duties. But, if the classification is not based upon the idea of special privileges, can it be sustained upon the basis of the business in which the corporations to be punished are engaged? That such corporations may be classified for some purposes is unquestioned. The business in which they are engaged is of a peculiarly danger- ous nature, and the legislature, in the exercise of its police powers, may justly require many things to be done by them in order to se- cure life and property. Fencing of railroad tracks, use of safety couplers, and a multitude of other things easily suggest themselves. And any classification for the imposition ,of such special duties — duties arising out of the peculiar business in which they are en- gaged — is a just classification, and not one within the prohibition of the fourteenth amendment. Thus it is frequently required that they fence their tracks, and as a penalty for a failure to fence double damages in case of loss are inflicted. Railway Co. v. Humes, 115 U. S. 512, 6 Sup. Ct. 110, 29 L. Ed. 463. But this and all kindred cases proceed upon the theory of a special duty resting upon railroad corporations by reason of the business in which they Hali, Cases Const.L. — ^25 386 CONSTITUTIONAL PROTECTION OP CIVIL RIGHTS are engaged, — a duty not resting upon others ; a duty which can be enforced by the legislature in any proper manner ; and whether it enforces it by penalties in the way of fines coming to the state, or by double damages to a party injured, is immaterial. It is all done in the exercise of the police power of the state, and with a view to enforce just and reasonable police regulations. While this action is for stock killed, the recovery of attornevs' fees cannot be sustained upon the theory JAist su^g"ested. There is no fence law in Texas . The legislature of the state has not deem- ed it necessary for the protection of life or property to require rail- roads to fence their tracks, and, as no duty is imposed, there can be no penalty for nonperformance . Indeed, the statute does not proceed upon any such theory; it is broader in its scope. Its ob- ject is to compel the payment of the several classes of debts named, and was so regarded by the supreme court of the state. But a mere statute to compel the payment of indebtedness does not come within the scope of police regulations. The hazardous ^ business of railroading carries with it no special necessity for the prompt payment of debts. That is a duty restmg upon all debtors, and while, in certain cases, there may be a peculiar obligation which may be enforced by penalties, yet nothing of that kind springs from the mere work of railroad transportation. Statutes have been sustained giving special protection to the claims of laborers and mechanics, but no such idea underlies this legislation. It does not aim to protect the laborer or the mechanic alone, for its benefits are conferred upon every individual in the state, rich or poor, high or low, who has a claim of the character described. It is not a statute for the protection of particular classes of individ- uals supposed to need protection, but for the punishment of certain corporations on account of their delinquency. Neither can it be sustained as a proper means of enforcing the payment of small debts, and preventing any unnecessary litigation i n respect to them , because it does not impose the penalty in all cases where the amount in controversy is within the limit named in the statute. Indeed, the statute arbitrarily singles out one class of debtors, and punishes it for a failure to perform certain duties. — duties which are equally obligatory upon all debtors : ' a punish- ment not visited by reason of the failure to comply with any prop- er police regulations, or for the protection of the laboring classes. of to prevent litigation about trifling matters, or in consequence of any special corporate privileges bestowed by the state . Unless the legislature may arbitrarily select one corporation or one class of corporations, one individual or one class of individuals, and visit a penalty upon them which is not imposed upon others guilty of like delinquency, this statute canno^ be sustained. * * * Judgment reversed. EQUAL PROTECTION OF THE LAWS 387 Mr. Justice Gray [with whom concurred Fuller, C. J., and White, J.], dissenting: * * * The legislature of a state must be presumed to have acted from lawful motives, unless the contrary appears upon the face of the statute. If, for instance, the legislature of Texas was satisfied, from observation and experience, that railroad corpora- tions within the state were accustomed, bevond other corporations or persons, to unconscionably resist the payment of such petty claims, with the object of exhausting the patience and the means of the claimants, by prolonged litigation, and perhaps repeated ap - peals, railroad corporations alone might well be required, when ultimately defeated in a suit upon such a claim, to pay a moderate attorney's tee, as a just, though often inadegng te, contribution to the expenses to which they had put the plaintiff in establishing a rlghtlul demand . Whether such a state of things as above sup- posed did in fact exist, and whether, for that or other reasons, sound policy required the allowance of such a fee to either party, or to the plaintiiJ only, were questions to be determined by the leg- islature, when dealing with the subject of costs, except in so far as it saw fit to commit the matter to the decision of the courts. * * * LINDSLEY v. NATURAL CARBONIC GAS CO. (Supreme Court of United States, 1911. 220 U. S. 61, 31 Sup. Ct 337, 55 I>. Ed. 369.) [Appeal from United States Circuit Court for the Southern Dis- trict of New York. A New York statute, as interpreted by the local courts, forbade tKe wasteful or unreasonable pumping from wells bored into the rock of a certain class of mineral waters hav- ing an excess of carbonic acid gas, for the purpose of extracting or vending such gas as a commodity separate from the water in which it occurred, provided that said mineral water was drawn from a source of supply common to other surface owners and that such pumping was injurious to such other owners? Plaintiff com- pany was engaged at Saratoga Springs, N. Y., in the occupation thus forbidden, and sought an injunction in the Circuit Court against the enforcement of the statute. Upon demurrer plaintiff's bill was dismissed, and plaintiff appealed.] Mr. Justice Van Devanter. * * * Because the statute is di - rected against pumping from wells bored or drilled into the rock- but not against pumping from wells not penetrating the rock , and because it is directed against pumping for the purpose of collect- ing the gas and vending it apart from the waters, but not against pumping for other purposes, the contention is made that it is ar- bitrary in its classification, and consequently denies the equal pro- tection of the laws to those whom it affects. 388 CONSTITUTIONAL PROTECTION OF CIVIL EIGHTS The rules by which this contention must be tested, as is shown by repeated decisions of this court, are these : (T) The equal-pro- tection clause of the fn^irtppnth arqf'T^H ment does not take from the state the power to classify in the adoption of police laws, but ad- mits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. (^ A classification having some reasonable basis does not offend ag^ainst that clause merely because it is not made with mathematical nicety , or because in practice it results in some inequality. (3j When the classification in such a law is called in question, i f any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must he assiim^.d . ft) One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. Bachtel v. Wilson, 204 U. S. 36, 41, 27 Sup. Ct. 243, 51 L. Ed. 357, 359; Louisville & N. R. Co. v. Melton, 218 U. S. 36, 30 Sup. Ct. 676, 54 L. Ed. 921 ; Ozan Lumber Co. v. Un- ion County Nat. Bank, 207 U. S. 251, 256, 28 Sup. Ct. 89, 52 L. Ed. 195, 197; Munn v. Illinois, 94 U. S. 113, 132, 24 L. Ed. 77, 86; Henderson Bridge Co. v. Henderson, 173 U. S. 592,. 615, 19 Sup. Ct. 553, 43 Iv. Ed. 823, 831. Unfortunately, the allegations of the bill shed but little light up- on the classification in question. They do not indicate that pump- ing from wells not penetrating the rock appreciably affects the common supply therein, or is calculated to result in injury to the rights of others, and neither do they indicate that such pumping as is done for purposes other than collecting and vending the gas apart from the waters is excessive or wasteful, or otherwise op- erates to impair the rights of others. In other words, for aught that appears in the bill, the classification may rest upon some sub- stantial difference between pumping from wells penetrating the rock and pumping from those not penetrating it, and between pumping for the purpose of collecting and vending the gas apart from the waters and pumping for other purposes, and t his differ- ence may afford a reasonable basis for the classifica tion. In thus criticising the bill, we do not mean that its allegations are alone to be considered, for due regard also must be had for what is within the range of common knowledge and what is other- wise plainly subject to judicial notice. Brown v. Piper, 91 U. S. 27, 43, 23 L. Ed. 200, 202; Brown v. Spilman, 155 U. S. 665, 670, 15 Sup. Ct. 245, 39 L. Ed. 304, 305 ; New Mexico ex rel. McLean v. Denver & R. G. R. Co., 203 U. S. 38, 51, 27 Sup. Ct. 1, 51 L. Ed. 78, 86; Illinois ex rel. McNichols v. Pease, 207 U. S. 100, 111, 28 Sup. Ct. 58, 52 L. Ed. 121, 126. But we rest our criticism upon the , fact that the bill is silent in respect of some matters which, al- though essential to the success of the present contention, are EQUAL PEOTECTION OF THE LAWS 389 neither within the range of common knowledge nor otherwise plainly subject to judicial notice. So, applying the rule that one who assails the classification in such a law must carry the burden of showing that it is arbitrary, we properly might dismiss the contention without saying more. But it may be well to mention other considerations which make for the same result. From statements made in the briefs of counsel and in oral argu- ment, we infer that wells not penetrating the rock reach such wa; ters only as escape naturally therefrom through breaks or fissures : and if this be so, it well may be doubted that pumping from such wells has anything like the same effect — if, indeed^ it has any^ upon the common supply or upon the rights of others, as does pumping from wells which take the waters from within the rock, where they exist under great hydrostatic pressure . As respects the discrimination made between pumping for the purpose of collecting and yending the gas apart from the waters, and pumping for other purposes, this is to be said : The greater demand for the gas alone, and the value which attaches to it in consequence of this demand, furnish a greater incentiye for exer- cising the common right excessively and wastefully when the pumping is for the purpose prescribed than when it is for other purposes; and this suggestion becomes stronger when it is re- flected th at the proportion of gas in the commin gl ed fluids as they exist in the rock is so small that to obtain a given quantity of gas involves the taking of an enor mou sly greater quantity of water7 and to satisfy appreciably the demand for the gas alone involves. a_ great waste of the water from which it is collected . Thus, it well may be that in actual practice the pumping is not excessive or wasteful save when it is done for the purpose prescribed. These considerations point with more or less persuasive force to a substantial difference, in point of harmful results, between pumping from wells penetrating the rock, and pumping from those not penetrating it. and between pumping for the purpose of col- lecting and yending the gas apart from the waters, and pumping for other purposes. If there be such a difference, it justifies the classification, for plainly a police law may be confined to the occa- sion for its existence. As is said in Carroll v. Greenwich Ins. Co., 199 U. S. 401, 411, 26 Sup. Ct. 66, 50 L. Ed. 246, 250: "If an evil is specially experienced in a particular branch of business, the Con- stitution embodies no prohibition of laws confined to the evil, or doctrinaire requirement that they should be couched in all-em- bracing terms." * * * Decree affirmed. 390 CONSTITUTIONAL PROTECTION OF CIVIL EIGHTS STRAUDER v. WEST VIRGINIA. (Supreme Court of United States, 1880. 100 U. S. 303, 25 L. Ed. 664.) [Writ of errof to the Supreme Court of West Virginia. Strauder was indicted for murder in West Virp^inia. was tried, convicted and sentenced; the judgment being affirmed by the state Supreme Court. At the time the laws of the state confined the right to serve upon grand and petit juries to white male citizens of the state over twenty-one years old . Strauder was a negro, and appropriate exceptions to his trial by such juries were made on his behalf and overruled.] Mr. Justice Strong. * * * jn this court, several errors have been assigned, and the controlling questions underlying them all are, first, whether, by the Constitution and laws of the United States, every citizen of the United States has a right to a trial of an indictment against him by a jury selected and impanelled with- out discrimination against his race or color, because of race or color. * * * It is to be observed that the first of these questions is not wheth- er a colored man, when an indictment has been preferred against him, has a right to a grand nr a petit jury composed in whole or in part of persons of his own race or color, but it is whether, in the composition or selection of jurors by whom he is to be indicted or tried, all persons of his race or color may be excluded by law, sole- ly because of their race or color, so that by no possibility can any colored man sit upon the jury . '^ ' * [After quoting section 1 of the fourteenth amendment :] This is one of a series of constitutional provisions having a common pur- pose, namely, securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy. The true spirit and meaning of the amendments, as we said in the Slaughter-House Cases, 16 Wall. 36, 21 L. Ed. 394, cannot be understood without keeping in view the history of the times when they were adopted, and the gen- eral objects they plainly sought to accomplish. At the time when they were incorporated into the Constitution, it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when sudden- ly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that state laws might be enacted or- en- forced to perpetuate the distinctions that had before existed. Dis- criminations against them had. been habitual. It was well known that in some states laws making such discriminations then existed, and others might well be expected. The colored race, as a race, ' was abject and ignorant, and in that condition was unfitted to com- mand the respect of those who had superior intelligence. Their EQUAL PROTECTION OF THE LAWS 391 training had left them mere children, and as such they needed the protection which a wise government extends to those who are un- able to protect themselves. They especially needed protection against unfriendly action in the states where they were resident. It was in view of these considerations the fourteenth amendment was framed and adopted. It was designed to assure to the colored. r a^e the enjoyment of all the civil rights that under the law are enjoyed by white persons, and tr> g-ive to that race the protection of ttie general government, in that enjoyment, whenever it should be denied by the states^ It not only gave citizenship and the privi- leges of citizenship to persons of color, but it denied to any state the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions by appropriate legislation. * * * If this is the spirit and meaning of the amendment, whether it means more or not, it is to be construed liberally, to carry out the purposes of its framers. It ordains that no state shall make or en- force any laws which shall abridge the privileges or immunities of citizens of the United States (evidently referring to the newly made citizens, who, being citizens of the United States, are declared to be also citizens of the state in which they reside). It ordains that no state shall deprive any person of life, liberty, or property, with- out due process of law, or deny to any person within its jurisdic- tion the equal protection of the laws. What is this but declaring that the law in the states shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the states, and, in regard to the colored race, for whose protection the amendment was primarily designed, that ng discrimination shall be made against them by law because of their color ? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race, — the right to exemption from unfriendly legislation against them distinctively as colored, — exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race. That the West Virginia statute respecting jurie.s — the statute that controlled the selection of the grand and petit jury in the case of the plaintiff in error — is such a discrimination ought not to be ' doubted . Nor would it be if the persons excluded by it were white men. If in those states where the colored people constitute a ma- . jority of the entire population a law should be enacted excluding^ all white men from jury service, thus denying to them the privi- lege of participating equally with the blacks in the administration of justice, we apprehend no one would be heard to claim that it would not be a denial to white men of the equal protection of the 392 CONSTITUTIONAL PROTECTION OP CIVIL RIGHTS laws. Nor if a law should be passed excluding all naturalized Celtic Irishmen, would there be any doubt of its inconsistency with the spirit of the amendment. The very fact that colored people are singled out and expressly denied by a statute all right to par- ticipate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others. The right to a trial by jury is guaranteed to every citizen of .West Virginia by the Constitution of that state, and the constitu- tion of juries is a very essential part of the protection such a mode of trial is intended to secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine ; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds. Blackstone, in his Commentaries, says, "The right of trial by jury, or the country, is a trial by the peers of every Englishman, and is the grand bulwark of his liberties, and is secured to him by the Great Charter." It is also guarded by statutory enactments intended to make impossible what Mr. Ben- tham called "packing juries." It is well known that prejudices oft- en exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that pro- tection which others enjoy. Prejudice in a local community is held to be a reason for a change of venue. The framers of the constitu- tional amendment must have known full well the existence of such prejudice and its likelihood to continue against the manumitted slaves and their race, and that knowledge was doubtless a motive that led to the amendment. By their manumission and citizenship the colored race became entitled to the equal protection of the laws of the states in which they resided; and the apprehension that through prejudice they might be denied that equal protection, that is, that there might be discrimination against them, was the inducement to bestow upon the national government the power to enforce the provision that no state shall deny to them the equal protection of the laws. Without the apprehended existence of prejudice that portion of the amendment would have been unneces- sary, and it might have been left to the states to extend equality of protection. * * * We do not say that within the limits from which it is not exclud- ed by the amendment, a state may not prescribe the qualifications of its jurors, and in so doing make discnmmations. it may con- fine the selection to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications. EQUAL PROTECTION OP THE LAWS We do not believe the fourt.eentli amenrln7ent was ever intended to i grohibitthis. Looking at its history, it is clear it had no such pur- pose! Its aim was against discrimin ation becaus e of race or color. As we have said more than once, its design was to protect an emancipated race, and to strike down all possible legal discrimina- tions against those who belong to it. To quote further from 16 Wall., supra: "In giving construction to any of these articles [amendments], it is necessary to keep the main purpose steadily in view." "It is so clearly a provision for that race and that emer- gency, that a strong case would be necessary for its application to any other." We are not now called upon to affirm or deny that it had other purposes. The fourteenth amendment makes no attempt to enumerate the rights it designed to protect. It speaks in general terms, and those are as comprehensive as possible. Its language is prohibi- tory ; but ever y prnbi hitinn implies the existence of rights and immunities, prominent amone which is an immunitv from inequal- ity of legal protection, either for life, libertv. or pro per ty. Any state action that denies this immunitv to a c olored man is in con- flict with the Constitution. * * * Judgment reversed. [Field, J., dissented, and Clifi^ord, J., concurred with him.] PLESSY v. FERGUSON. (Supreme Court of United States, 1896. 163 U. S. 537, 16 Sup. Ct. 1138, 41 L. Ed. 256.) [Error to the Supreme Court of Louisiana. A Louisiana statute required railway companies to provide equal, but separate, accom- modations for white and colored passengers, and made it a misde- meanor for any passenger to insist upon going into a c oac h reserved for persons of the other race. Plessy, a person of one-eighth Afri- can blood, was prosecuted for a violation of this statute before Ferguson, judge of the criminal court in the parish of Orleans. Plessy petitioned the state Supreme Court for writs of prohibition and certiorari to enjoin said judge from punishing hirn under said statute. From a denial of this petition this writ of error was taken.] Mr. Justice Brown. * * * fhe object of the [fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, i n the nature of things, it could not have been intended to abolish distinctions based upon color, or ' to enforce social, as distinguished from political, equality, or a com- ' mingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places . where they are liable to be brought into contact, do not necessarily . 394 CONSTITUTIONAL PROTECTION OF CIVIL EIGHTS imply the inferiority of either race to the other, and have been gen^_ erally, if not universally, recognized as yyithin the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of s eparate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced. One of the earliest of these cases is that of Roberts v. City of Boston, 5 Cush. (Mass.) 198, in which the supreme judicial court of Massachusetts held that the general school committee of Bos- ton had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance upon the other schools. **=)•• Similar laws have been enacted by Congress under its general pow- er of legislation over the District of Columbia (sections 281-283, 310, 319, Rev. St. D. C), as well as by the legislatures of many of the states, and have been generally, if not uniformly, sustained by the courts. State v. McCann, 21 Ohio St. 210 ; Lehew v. Brum- mell, 103 Mo. 546, 15 S. W. 765, 11 L. R. A. 828, 23 Am. St. Rep. 895; Ward v. Flood, 48 Cal. 36; Bertonneau v. Directors of City Schools, 3 Woods, 177, Fed. Cas. No. 1,361 ; People v. Gallagher, 93 N. Y. 438, 45 Am. Rep. 232 ; Cory v. Carter, 48 Ind. 337, 17 Am. Rep. 738; Dawson v. Lee,. 83 Ky. 49. Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of c.nn fgrt anH yet have been universally recognized as within the police power of the state. State v. Gibson, 36 Ind. 389, 10 Am. Rep. 42. " * * * In this connection, it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate ac- commodations for' the two races will also authorize them to re- quire separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain national- ities, or to enact laws requiring colored people to walk upon one side of the street, and white people upon the other, or requiring white men's houses to be painted white, and colored men's black, or their vehicles or business signs to be of different colors, upon the theory that one side of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The j-epi v tn all this is that every exercise of the police power mu-st be reasonable, and extend only to such laws as are en- acted in good faith for the promotion of the public good, and not tor the annoyance or oppression of a particular class. * * * So far, then, as a conflict with the fourteenth amendment is con- cerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this EQUAL PROTECTION OF THE LAWS 395 there must necessarily b e a large discretion on the part of the leg- ' islature . In determining the question of reasonableness, it is at liberty t o act with reference to the established usages, customs . and traditions of the people, and with a view to the promotion of . their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in pub- lic conveyances is unreasonable, or more obnoxious to the four- teenth amendment than the acts of congress requiring separate schools for colored children in the District of Columbia, the con- stitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures. We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamp s th^ rrrlnrerl rare with a badge of inferiority . If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. * * * The argument also assumes that social preju- dices may be overcome by legislation, and that equal rights can- not be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the re- sult of natural afifinities, a mutual appreciation of each other's mer- its, and a voluntary consent of individuals. * * * Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane. * * * Judgment affirmed. [Harlan, J., gave a dissenting opinion. BrEWER, J., did not sit.] MULLER v. OREGON. (Supreme Court of United States, 1908. 208 U. S. 412, 28 Sup. Ct. 324, 52 L. Ed. 551, 13 Ann. Cas. 957.) [Error to the Supreme Court of Oregon. An Oregon statute (Laws 1903, p. 148) forbade the employment of any female in any mecha nical establishment, factory, or laundry in the state for more than" ten hours during an y one day, Muller was convicted and fined for violating this statute in the conduct of his laundry . This judgment of the circuit court of Multnomah county was affirmed by the state Supreme Court.] 396 CONSTITUTIONAL PROTECTION OF CIVIL EIGHTS Mr. Justice BrewEr. * * * T^e single question is the con- stitutionality of the statute under which the defendant was con- victed, so far as it affects the work of a female in a laundry. * * It is the law of Oregon that women, whether married or single, have equal contractual and personal rights with men. * * * It thus appears that, putting to one side the elective franchise, in the matter of personal and, contractua l right s tliey stand on the same plane as the other sex! 'Their rights~iri~these respects can no more be infringed than the equal rights of their brothers. We held in Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539, 49 L,. Ed. 937, 3 Ann. Cas. 1133, that a law providing that no laborer shall be required or permitted to work in a bakery more than sixty hours in a week or ten hours in a day was not as to men a legit- imate exercise of the police power of the state, but an unreason- able, unnecessary, and arbitrary interference with the right and liberty of the individual to contract in relation to his labor, and as such was in conflict with, and void under, the federal Constitution. That decision is invoked by plaintiff in error as decisive of the question before us. But this assumes that the difference between the sexes does not justify a different rule respecting a restriction of the hours of labor. In patent cases counsel are apt to open the argument with a dis- cussion of the state of the art. It may not be amiss, in the pres- ent case, before examining the constitutional question, to notice the course of legislation, as well as expressions of opinion from other than judicial sources. In the brief filed by Mr. Louis D. Brandeis for the defendant in error is a very copious collection ol all these matters, an epitome of which is found in th e margin.^ While there have been but few decisions bearing directly upon the question, the following sustain the constitutionality of such legislation: Com. v. Hamilton Mfg. Co., 120 Mass. 383; Wenham V. State, 65 Neb. 394, 400, 406, 91 N. W. 421, 58 L. R. A. 825 ; State v. Buchanan, 29 Wash. 602, 70 Pac. 52, 59 L. R. A. 342, 92 Am. St. Rep. 930; Com. v. Beatty, 15 Pa. Super. Ct. 5, 17. Against them is the case of Ritchie v. People, 155 111. 98, 40 N. E. 454, 29 L. R. A. 79, 46 Am. St. Rep. 315. The legislation and opinions referred to in the margin may not be, technicadly speaking, authorities, and in them is little or no dis- cussion of the constitutional question presented to us for deter- mination, yet they are significant of a widespread belief that wo- man's physical structure, and the functions she performs in con- sequence thereof, justify special legislation restricting or qualify- ing the conditions under which she should be permitted to toil. ^' 7 Here are collected references to all Ameiican and European legislation restricting the hours of labor of women, and a summary of extracts from over 90 official reports to the efCect that long hours of labor are dangerous to women. EQUAL PROTECTION OF THE LAWS 397 Constitutional questions, it is true, are not settled by even a con- sensus of present public opinion, for it is the peculiar value of a, written constitution that it places m unchanging form l imitations^ upon legislative action, and thus gives a permanence a n"d~stabiirtv " to popular government which oth erwise would be lacking . At the same time, when a question of fact is debated and debatable, and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact, a widespread and long- continued belief concerning it is worthy of consideration. We take judicial cognizance of all matters of general knowledge . * * * That woman's physical structure and the performance of ma- tertial functions place her at a disadvantage in the struggle for subsistence is obvious. This is es pecially true when the burdens of motherhood are upon fier i ICven when they are not, by abun- ^ dant testimony of the medical fraternity continuance for a long ■ time on her feet at work, repeating this from day to day, tends to • injurious effects upon the body, and, as healthv mothers are es- sential in vigo rous offspring, the physical well-being of woman becomes an obiect ofpublic interest an d care in order t o preserve the strength and vigor of the race- Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the out- set by superior physical strength, and this control in various forms, with diminishing intensity, has continued to the present. As [a] minor, though not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be pre- , served. Education was long denied her, and while now the doors of the schoolroom are opened and her opportunities for acquiring knowledge are great, yet even with that and the consequent in- crease of capacity for business affairs it is still true that in the struggle for subsistence she is not an equal competitor with her brother. Though limitations upon personal and contractual rights - may be removed by legislation, there is that in her disposition . and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right. Doubtless there are individual exceptions, and there are many respects in which she has an advantage over him ; but looking at it from the viewpoint of the effort to maintain an independent position in life, she is not upon an equality. Diff erentiated bv these matters from the o ther s ex, she is prop- j erly placed in a class bv herself, and legislatio n de signed for he r ^ prot ection may be sustained, even when like legislation is not nec -'^^ essary for men, and coul d not be sustained. It is impossible to'^ close one's eyes to the fact that she still looks to her brother and ' depends upon him. Even though all restrictions on political, per- sonal, and contractual rights were taken away, and she stood, so < 398 CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection ; that her physical struc- ture and a proper discharge of her maternal functions — ^having in yiew not merely her own health, but the well-being of the race — j ustify legislation to protect her from the greed as well as the pas- sion of man . The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time sh- ^hall labor, are not imposed solely for her bene- fit, but also largely for the benefit of all. Many words cannot make this plainer. The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long continued labor, particularly when done standing, the influence of v ip^ orous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle lor subsistence. This difference justifies a difference in legislation, and upholds that which is designed to compensate for some of the burdens which rest upon her. * * * For these reasons, and without questioning in any respect the decision in Lochner v. New York, we are of the opinion that it cannot be adjudged that the act in question is in conflict with the federal Constitution, so far as it respects the work of a female in a laundry, and the judgment of the Supreme Court of Oregon is affirmed. III. Due Process of Law • HURTADO V. CALIFORNIA. (Supreme Court of United States, 1884. 110 U. S. 516, 4 Sup. Ot. Ill, 292, 28 L. Ed. 232.) [Error to the Supreme Court of California. The California Con- stitution of 1879 provided t hat offences theretofore prosecuted by indictment should be prosecuted by information after examination and commitment bv a magistrate, or by indictment, as might be prescribed by law. Hurtado was found guilty of murder by a jury, after an information had been filed against him, and wai. sentenced to deat^T ^ His objections to the proceeding by informa- tion were overruled by the CaHfornia Supreme Court, and this writ of error was taken.] 8 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 217-225. DUE PKOCESS OF LAW SQQ Mr. Justice MatThews. * * * It is claimed on behalf of the prisoner that the conviction and sentence are void, on the ground that they are repugnant to that clause of the fourteenth article of amendment of the Constitution of the United States, which is in these words: "Nor shall any state deprive any person of life, lib- erty, or property without due process of law." The proposition of law we are asked to affirm is that an indict - ment or presentment by a grand iurv. as known to the common law of England, is essential to that "due process of law," when applied to prosecutions for felonies, which is secured and guar- anteed by this provision of the Constitution of the United States, and which accordingly it is forbidden to the states respectively to dispense with in the administration of criminal law. * * * It is maintained on behalf of the plaintiff in error that the phrase "due process of law" is equivalent to "law of the land," as found in the 29th chapter of Magna Charta ; that by immemorial usage it has acquired a fixed, definite, and technical meaning ; that it refers to and includes, not only the general principles of public liberty and private right, which lie at the foundation of all free govern- ment, but the verv institutions which, venerable bv time and cus- tom, have been tried by experience and found fit and necessary for the preservation of those principles^ and which, having been the birthright and inheritance of every English subject, crossed the Atlantic with the colonists and were transplanted and estab- lished in the fundamental laws of the state; that, having been originally introduced into the Constitution of the United States as a limitation upon the powers of the government, brought into be- ing by that instrument, it has now been added as an additional security to the individual against oppression by the states them- selves; that one of these institutions is that of the grand iurv . an indictment or presentment by which against the accused in cases of alleged felonies is an essential part of due process of law, in order that he may not be harassed or destroyed by prosecutions founded only upon private malice or popular fury. i This view is certainly supported by the authority of the great , name of Chief Justice Shaw and of the court in which he pre- sided, which, in Jones v. Robbins, 8 Gray (Mass.) 329, decided that the 12th article of the Bill of Rights of Massachusetts, a transcript of Magna Charta in this respect, made an indictment or present- ment of a grand jury essential to the validity of a conviction in cases of prosecutions for felonies. * * * Mr. Reeve , in 2 History of Eng. Law, 43, translates the phrase, nisi per legale judicium parium suorum vel per legem terrse, "But by the judgment of his peers, or by some other legal process or proceeding adapted by the law to the nature of the case." Chancellor Kent . 2 Com. 13, adopts this mode of construing the phrase. Quoting the language of Magna Charta, and referring to 400 CONSTITUTIONAL PROTECTION OF CIVIL EIGHTS Lord Coke's comment upon it, he says : "The better and larger definition of due process of law is that it means law in its regular course of administration through courts of justice." This accords with what is said in Westervelt v. Gregg, 12 N. Y. 202, 212, 62 Am. Dec. 160, by Denio, J. : "The provision was designed to protect the citizen against all mere acts of power, whether flowing from the legislative or executive branches of the government." The principal and true meaning of the phrase has never been more tersely or accurately stated than by Mr. Justice Johnson, in Bank of Columbia v. Okely, 4 Wheat. 235-244, 4 L. Ed. 559 : "As to the words from Magna Charta, incorporated into the Constitu- tion of Maryland, after volumes spoken and written with a view to their exposition, t he good sense of mankind has at last settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unre- strained by the established principles of private right and dis- tributive justice." And the conclusion rightly deduced is, as stated by Mr. Cooley, Constitutional Limitations, 356 : " The principles, then, upon which the process is based, are to determine whether it is 'due process' or not, and not any considerations of mere form. Administrative and remedial process may be changed from time to time, but only , with due regard to the landmarks established for the protection of 'the citizen." It is urged upon us, however, in argument, that the clairn made in behalf of the plaintiff in error is supported by the decision of this court in Den ex dem. Murray v. Hoboken Land & Improve- ment Company, 18 How. 272, 15 L. Ed. 372. There, Mr. Justice Curtis, delivering the opinion of the court, after showing (page 276) that due process of law must mean something more than the actual existing law of the land, for otherwise it would be no re- straint upon legislative power, proceeds as follows: "To what principle, then, are we to resort to ascertain whether this process, enacted by Congress, is due process? To this the answer must be twofold. We must examine the Constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so. we must look to those settled usages and modes of pro- ceeding existing in the common and statute law of England before ■ the emigration of our ancestors, and which are shown not to have , been unsuited to their civil and political condition by having beeg acted on by them after the settlement of this country." ' This, it is argued, furnishes an indispensable test of what consti- tutes "due process of law"; that any proceeding otherwise au- thorized by law, which is not thus sanctioned by usage, or which supersedes and displaces one that is, cannot be regarded as due process of law. DUE PROCESS OF LAW 4:01 But this inference is unwarranted. The real syllabus of the passage quoted is, that a process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show , the sanction of settled usage both in England and in this country; but it by no means follows that nothing else can be due process of law. The point in the case cited arose in reference to a summary proceeding, questioned on that account, as not due process of law. The answer was: however exceptional it may be, as tested by definitions and principles of ordinary procedure, nevertheless, this, in substance, has been immemorially the actual law of the land, and, therefore, is due process of law. But to hold that such a ' characteristic is essential to due process of law, would be to deny . every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our juris- prudence the unchangeableness attributed to the laws of the Medes and Persians. This would be all the more singular and surprising, in this quick and active age, when we consider that, owing to the progressive development of legal ideas and institutions in England, the words of Magna Charta stood for very different things at the time of the separation of the American colonies from what they represented ^ originallY- For at first the words nisi per legale judicium parium had no reference to a jury; they applied only to the pares regni, who were the constitutional judges in the court of exchequer and coram rege. Bac. Abr. "Juries," (7th Ed. Lond.) note; 2 Reeve, Hist. Eng. Law, 41. And as to the grand jury itself, we learn of , its constitution and functions from the assize of Clarendon, (A. D. > 1164,) and that of Northampton, (A. D. 1176,) Stubbs, Chart. 143-150. * * * "The system thus established," says Mr. Justice Stephens, (1 Hist. Crim. Law Eng. 252,) "is simple. The body of the country are the accusers. Their accusation is practically equiv- alent to a conviction, subject to the chance of a favorable termina- tion of the ordeal by water. If the ordeal fails, the accused person loses his foot and his hand. If it succeeds, he is, nevertheless, to be banished. Accusation, therefore, was equivalent to banishment, at least." When we add to this that the primitive grand jury - heard no witnesses in support of the truth of the charges to be preferred, but presented upon their own knowledge, or indicted upon common fame and general suspicion, we shall be ready to acknowledge that it is better not to go too far back into antiquity for the best securities for our "ancient liberties." It is more con- sonant to the true philosophy of our historical legal institutions to say that the spirit of personal liberty and individual right, which they embodied, was preserved and developed by a progressive growth and wise adaptation "to new circumstances and situations of the forms and processes found fit to give, from time to time, Hall Casbs CoNar.L. — 2Q 402 CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS new expression and greater effect to modern ideas of self-govern- ment. * * * The Constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of English law and history; but it was made for an undefined and expanding future, and for a people gathered, and to be gathered, from many nations and of many tongues; and while we take just pride in the principles and institutions of the common law , we are not to forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not un- known. Due process of law, in spite of the absolutism of con- tinental governments, is not alien to that Code which survived the Roman empire as the foundation of modern civilization in Europe, and which has given us that fundamental maxim of distributive justice, suum cuique tribuere. There is nothing in Magna Charta, r ightlv construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every agej and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experi- ences of our own situation and system will mould and shape it into new and not less useful forms. The concessions of Magna Charta were wrung from the king as guarantees against the oppressions and usurpations of his preroga- tive. It did not enter into the minds of the barons to provide security against their own body or in favor of the Commons by limiting the power of Parliament ; so that bills of attainder, ex post facto laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation which occur so frequently in English history, were never regarded as inconsistent with the law of the land; for notwithstanding what was attributed to Lord Coke in Bonham's Case, 8 Rep. 115, 118a, the omnipotence of Parliament over the common law was absolute, even against common right and reason. The actual and practical security for English liberty against legis- lative tyranny was the power of a free public opinion represented by the Commons. In this country written constitutions were deemed essential to protect the rights and liberties of the people against the encroach- ments of power delegated to their governments, and the provisions of Magna Charta were incorporated into bills of rights. They were limitations upon all the powers of government, legislative as well as executive and judicial. It necessarilv happened, therefore, that as these broad and gen- eral maxims of liberty and justice held in our system a differ ent place and performed a different function from their position and ^ office in English constitutional history and law, they would re - DUE PROCESS OF LAW 403 ceive and justify a corresponding and more c.oTnnrp.1ip. iT^i'"^p I'ntpr- pretation. Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation ; but, in that application, as it would be incongruous to measure and restrict them by the ancient cus- tomary English law, they must be held tn guarantee, not particular forms of procedure, but the very substance of individual rights to. lite, liberty, and property. Res-traints that could be fastened upon exec utiv e authority with precision and detail, might prove obstructive and injurious when imposed on the just and necessary discretion of legislative power ; and, while in every instance, laws that violated express and spe- cific injunctions and prohibitions might, without embarrassment, be judicially declared to be void, yet any general principle or maxim founded on the essential nature of law, as a just and rea- sonable expression of the public will, and of government as in- stituted by popular consent and for the general good, can only be ' applied to cases coming clearly within the scope of its spirit and purpose, and not to legislative provisions merely establishing forms and modes of attainment. Such regulations, to adopt a sentence of Burke's, "may alter the mode and application, but have no power over the substance of original justice." Tract on Popery Laws, 6 Burke's Works, (Ed. Little & Brown) 323. Such is the often repeated doctrine of this court. In Munn v. Illinois, 94 U. S. 113-134, 24 L. Ed. 77, the Chief Justice, deliver- ing the opinion of the court, said: " A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no, more sacred than any other. Rights of property which have been created by the com- mon law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will or even at^ the whim of the legislature, unless prevented by constitutional^ limitations. Indeed, the great office of statutes is to remedy de- fects in the common law as they are developed, and to adapt it to ' the changes of time and circumstances." And in Walker v. Sau- vinet, 92 U. S. 90, 23 L. Ed. 678, the court said: "A trial by jury in suits at common law pending in state courts is not, therefore, a privilege or immunity of national citizenship which the states are forbidden by the fourteenth amendment to abridge. A_state cannot depriv e a person of his property without due process of law ; but this does not necessarily imply that all trials in the state courts affecting the property of persons must be by jury. This requirement of the Constitution is met if the trial is had according: to the settled course of judicial proceedings. Due process of law, is process according to the law of the land. This process in the. states is regulated by the law of th« state." ♦ ♦ * 404 CONSTITUTIONAL PROTECTION OF CIVIL EIGHTS We are to construe this phrase in the fourteenth amendment by the usus loquendi of the Constitution itself. The same words are contained in the fifth amendment. That article makes specific and express oi'oViteion for perpetuating the institution of the grand jur y, so far as relates to prosecutions for the more aggravated Crimea under the laws of the United States. It declares that "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger ; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ; nor shall he be compelled in any criminal case to be a witness against himself." It then immediately adds: "nor be deprived of life, liberty, or property without due process of law." According to a recognized canon of interpretation, especial- ly applicable to formal and solemn instruments of constitutional law, we are forbidden to assume, without clear reason to the con- t,trary, that any part of this most important amendment is super- fluous. The natural and obvious inference is that, in the sense oj ' the constitution. ' due process of law" was not meant or intended^ to include, ex vi termini, the institution and procediire of a grand j ury in any case . The conclusion is equally irresistible, that when the same phrase was employed in the fourteenth amendment to re- strain the action of the states, it was used in the same sense and with no greater extent ; and that if in the adoption of that amend- ment it had been part of its purpose to perpetuate the institution of the grand jury in all the states, it would have embodied, as did the fifth amendment, express declarations to that effect. Due process of law in the latter refers to that law of the land whicfi ( jerives its authority from the legislative powers conferred lipnti Congress by the Constitution of the United States, exercised within, the limits therein prescribed, and interpreted according to the prin^^ c iples ot the common law . In the fourteenth amendment, by parity of reason, it refers to t hat law of the land .in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental prin - ciples ot liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which rer sides in the right of the people to make their own laws, and alte^ them at their pleasure. "The fourteenth amendment," as was said by Mr. Justice Bradley in Missouri v. Lewis, 101 U. S. 22-31, 25 L. Ed. 989, "does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two states separat- ed only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each state prescribes its own modes of judicial proceeding." DDE PROCESS OF LAW 405 But it is not to be supposed that these legislative powers are absolute and despotic, and that the amendment prescribing due process of law is too vague and indefinite to operate as a practical , restraint. It is not every act, legislative in form, that is law. Law js sornething more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case, but, in the language of Mr. Webster, in his familiar definition, 'the general law, a law which hears before it condemns, which proceeds upon inquirv, and renders judgment only after trial." so "that every citizen shall hold his life, libertv. property, and irri r munities under the protection of the general rules which govern society, " and thus excluding, as not due process of law.' acts of attainder, bills of pains and penalties, acts of confiscation, acts re- versing judgments, and acts directly transferring one man's estate to another, legislative judgments and decrees, and other similar special, partial, and arbitrary exertions of power under the forms of legislation. Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an imperson- al multitude. And the limitations imposed by our constitutional law upon the action of the governments, both state and national, are essential to the preservation of public and private rights, not- withstanding the representative character of our political institu- tions. The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of num- bers, as against the violence of public agents transcending the lim- its of lawful authority, even when acting in the name and wield- ing the force of the government. * * * It follows that any legal proceeding enforced by public author- ity^ whether sanctioned by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the gen- eral public good, which regards and preserves these principleg o| liberty and justice, must be held to be due process of law. * * * Tried by these principles, we are unable to say that the substitu- tion for a presentment or indictment by a grand jury of the pro- ceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-exami- nation of the witnesses produced for the prosecution, is not due process of law. It is, as we have seen, an ancient proceeding at common law, which might include every case of an ofifence of less grade than a felony, except misprisio n of treason; and in every circumstance of its administratiorf, as authorized by the statute of California, it carefully considers and guards the substantial inter- est of the prisoner. It is merelA a preliminary proceeding, and can result in no final judgment, except as the consequence of a reg- 406 CONSTITUTIONAL PBOTECTION OF CIVIL BIGHTS ular judicial trial, conducted precisely as in cases of indict- ments. * * * Judgment affirmed. [Harlan, J., gave a dissenting opinion.] HAGAR V. RECLAMATION DIST. NO. 108. (Supreme Court of United States, 1884. Ill U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569.) [Appeal from the federal Circuit Court for California. A Califor- nia statute provided for the creation by county boards of super - visors of reclamation districts out of overflowed lands so situated as to be susceptible of one mode of reclamation. After the neces- sary expenses of reclamation had been estimated commissioners ^ appointed by the supervisors were to assess upon each acre re- claimed or benerited an amount proportionate to the whole expense and to the benefits of the reclamation. Hagar's land was included in such a district and he refused to pay his assessment. Suits were brought against him to enforce liens on his land for the assessment. These suits were removed to the federal Circuit Court, which held the liens valid and ordered the land sold to satisfy them.] Mr. Justice Field. * * ■* 'The objections urged to the valid- ity of the assessment on federal grounds are substantially these: that the law under which the assessment was made and levied con- flicts with the clause of the fourteenth amendment of the Consti- tution declaring that no state shall deprive any person of life, liberty, or property without due process of law. * * * It is_ sufficient to observe here that by "due process" is meant one, which, f nllnwinp- the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in the ordi- nary mode prescribed by the law: it must be adapted to the end to be attained; and wherever it is necessary for the protection of. the parties, it must eive them an opportunity to be heard respect- ing the lustice of the judgment sought The clause in question means, therefore, that there can be no proceeding against life, liberty, or property which may result in the deprivation of either, without the observance of those general rules established in our system of jurisprudence for the security of private rights. Hurta- do V. California, 110 U. S. 516, 536, 4 Sup. Ct. Ill, 292, 28 L. Ed. 232. The a ppellant contends that this fundamental principle was vio-_ l ated in tlie assessment of his property, inasmuch as it was made without notice to him, or without his being afforded any oppor- tunity to be heard respecting it; the law authorizing it containing^ DUB PROCESS OF LAW 407 no provision for such notice or hearing . His contention is that notice and opportunity to be heard are essential to render any proceeding due process of law which may lead to the deprivation of life, liberty, or property. Undoubtedly where life and liberty are involved, due process requires that there be a regular course of judicial proceedings, which imply that the party to be afifected shall have notice and an opportunity to be heard ; so, also, where title or possession of property is involved. But where the taking ^ of property is in the enforcement of a tax, the proceeding is neces- J sarily less formal, and whether notice to him is at all necessary , / may depend upon the character of the tax, and the manner in which its amount is determinable^ The necessity of revenue for ' the support of the government does not admit of the delay at- tendant upon proceedings in a court of justice, and they are not| required for the enforcement of taxes or assessments. As stated - by Mr. Justice Bradley, in his concurring opinion in Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616 : " In judging what is 'due ^ process of law' respect must be had to the cause and object of the taking, whether under the taxine power, the power of eminent ^ domain, or the power of assessment for local improvements, or ■' some of these; and, if found to be suitable or admissible in the special case, it will be adjudged to be 'due process of law,' but if found to be arbitrary, oppressive, and unjust, it may be declared to be not 'due process of law.' " The p ower of taxation possessed bv the state mav be exercised, upon any subject within its jurisdiction, and to anv extent not prohibited by the Constitution of the United States? As said by this court: It may touch property in every shape, in its natural condition, in its manufactured form, and in its various transmuta- tions. And the amount of the taxation may be determined by the value of the property, or its use, or its capacity, or its productive- ness. It may touch business in the almost infinite forms in which it is conducted, in professions, in commerce, in manufactures, and in transportation. Unless restrained by provisions of the federal Constitution, the power of the state, as to the mode, form, and extent of taxation, is unlimited where the subjects to which it applies are within her jurisdiction." State Tax on Foreign-Held Bonds, 15 Wall. 300, 319, 21 L. Ed. 179. ' Of the different kinds of taxes which the state may impose, f there is a vast number of which, from their nature, no notice can ' be given to the tax-payer, nor would notice be of anv possible ad- vantage to him, such as poll-taxes, license taxes, , (not dependent ' upon the extent of his business,) and, generally, specific taxes on_ ^ things or persons or occupations. In such cases the legislature in aiuthorizmg the tax fixes its amount, and that is the end of the ' matter. If the tax be not paid the property of the delinquent may ' be sold, and he be thus deprived of his property. Yet there can be "I la 408 CONSTITUTIONAL PROTECTION OF CIVIL EIGHTS ► no question that the proceeding is due process of law, as there is no inquiry into the weight of evidence, or other element of a ju- dicial nature, and nothing could be changed by hearing the tax- payer. No right of his is therefore invaded. Thus, if the tax on animals be a fixed sum per head, or on articles a fixed sum per yard or bushel or gallon, there is nothing the owner can do which can affect the amount to be collected from him. So, if a person wishes a license to do business of a particular kind, or at a par- ticular place, such as keeping a hotel or a restaurant, or selling liquors or cigars or clothes, he has only to pay the amount re- quired by the law and go into the business. There is no need in such cases for notice or hearing. So, also, if taxes are imposed in the shape of licenses for privileges, such as those on foreign corporations for doing business in the state, or on domestic corpo- rations for franchises, if the parties desire the privilege they have only to pay the amount required. In such cases there is no neces- sitv for notice or hearing . The amount of the tax would not be changed by it. But where a tax is levied on property not specific- ally, but according to its value, to be ascertained by assessors ap- t^ pointed for that purpose, upon such evidence as they mav obtain^ a different principle comes in. The officers in estimating the value act judicially, and in most of the states provision is made for the correction of errors committed by them, through boards of revi- sion or equalization, sitting at designated periods provided by law, to hear complaints respecting the justice of the assessments. The law, in prescribing the time when such complaints will be hear d, gives all the notice required, and the proceeding by which the valuation is determined, though it may be followed, if the tax be not paid, by a sale of the delinquent's property, is due process of law. / In some states, instead of a board of revision or equalization, the assessment may be revised by proceedings in the courts and be there corrected if erroneous, or set aside if invalid; or objections to the validity or amount of the assessment may be taken when the attempt is made to enforce it . In such cases all the opportuni- ty is given to the tax-payer to be heard respecting the assessment which can be deemed essential to render the proceedings due pro- cess of law. In Davidson v. New Orleans, this court decided this ' precise point. * * * The court, speaking by Mr. Justice Miller, 'said that it would lay down the following proposition as applicable to the case: "That whenever by the laws of a state, or by state authority, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be for the whole state or of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property as is appro- DUB PROCESS OF LAW 409 priate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections." 96 U. S. 97, 24 L. Ed. 616. This decision covers the cases at bar. The assessment under consideration could, by the law of California, be enforced only bv legal . proceedings, and in them any defense going either to its. validity or amount could be pleaded,. In ordinary taxation assess- ments, if not altered by a board of revision or of equalization, stand good, and the tax levied may be collected by a sale of the delinquent's property; but assessments in California, for the pur- pose of reclaiming overflowed and swamp lands, can be enforced ' only by suits, and, of course, to their validity it is essential that ' notice be given to the tax-payer, and opportunity be afforded hitn to be heard respecting the assessment. In them he may set forth. by way of defense, all his grievances. Reclamation Dist. No. 108 ' v. Eva,ns, 61 Cal. 104. If property taken upon an assessment, ' which can only be enforced in this way, be not taken by due pro- ' cess of law, then, as said by Mr. Justice Miller in the New Orleans Case, these words, as used in the Constitution, can have no definite meaning. * * * Decrees affirmed. TWINING V. NEW JERSEY. (Supreme Court of United States, 1908. 211 U. S. 78, 29 Sup. Ct. 14, 53 L. Ed. 97.) [Error to the Court of Errors and Appeals of New Jersey. Twining and another were convicted in the Monmouth court of quarter sessions of a high misdemeanor in deceiving a state bank examiner, and were sentenced to six and four years of imprison- ment respectively. In accordance with the law of the state, the y jury were instructed that thev might draw an unfavorable infer- I ence against the defendants' failure to testify in denial of evidence I, tending to incriminate hmT The convictions being affirmed by the state appellate courts, this writ was taken on the ground that compulsory self-incrimination had been enforced against the de- ■ fendants 'y\ vrnlatinn nf Hu e process of law.] Mr. Justice Moody. * * * The exemption from testimonial compulsion, that is, from disclosure as a witness of evidence against oneself, forced by any form of legal process, is universal in Ameri- can law, though there may be differences as to its exact scope and limits. At the time of the formation of the Union the prin-^ ciple that no person could be compelled to be a witness against _ himself had become embodied in the common law and distin- ^ guished it from all other systems of jurisprudence. It was gener- j 410 CONSTITUTIONAL PROTECTION OF CIVIL BIGHTS ally regarded then, as now, as a privilege of great value, a protec- tion to the innocent, though a shelter to the guilty, and a safe- guard against heedless, unfounded, or tyrannical prosecutions. * * * The privilege was not included in the federal Constitu- tion as originally adopted, but was placed in one of the ten amend- ments which were recommended to the states by the first Con- gress, and by them adopted. Since then all the states of the Union have, from time to time, with varying form, but uniform meaning, included the privilege in their Constitutions, except the states of New Jersey and Iowa, and in those states it is held to be part of the existing law. * * * [After referring to the historical in- terpretation of "due process of law" set forth in Murray v. Hobo- ken Land Co., referred to in Hurtado v. California, ante, p. 400:] The question under consideration may first be tested by the application of these settled doctrines of this court. If the state- ment of Mr. Justice Curtis, as elucidated in Hurtado v. California, is to be taken literally, that alone might almost be decisive. For nothi ng i s more certain, in point of historical fact, than that the practice of compulsorv self-incrimination in the courts and else- where existed for four hundred years after the granting of Magna. Charta, contmued throughout the reign of Charles I (though then beginning to be seriouslv auestinnedl. prained at least some foot- hold among the early colonists of this country, and was not en- tirely omitted at trials in England until the eighteenth century. Wigmore, Ev. § 2250 (see for the colonies, note 108) ; Hallam's Constitutional History of England, chapter 8, Widdleton's Amer- ican Ed. vol. 2, p. 37 (describing the criminal jurisdiction of the court of star chamber) ; Bentham's Rationale of Judicial Evidence, book 9, chap. 3, § 4. * * * [Here follow references to particular English and colonial practices in this regard.] But, without repudiating or questioning the test proposed by Mr. Justice Curtis for the court, or rejecting the inference drawn from English law, we prefer to rest our decision on broader grounds, and inquire whether the exemption from self-incrimina- tion is of such a nature that it must be included in the conception of due process. Is it a fundamental principle of liberty and justice which inheres in the very idea of free government and is the in^ alienable right of a citizen of such a government ? * ^ * In the decision of this question we have the authority to take into account only those fundamental rights which are expressed in that provision; not the rights fundamental in citizenship, state or national, for they are secured otherwise; but the rights funda- mental in due process, and therefore an essential part of it. We. have to consider whether the right is so fundamental in due pro- cess that a refusal of the right is a denial of due process . Une aid to the solution of the question is to inquire how the DUB PROCESS OF LAW 4:11 right was rated during the time when the meaning of due process was in a formative Btatgj and before it was incorporated, in Ameri- can constitutional law. Did those who then were formulating and insisting upon the rights of the people entertain the view that the right was so fundamental that there could be no due process with- out it? It has already appeared that, prior to the formation of the American Constitutions, in which the exemption from compul-' sory self-incrimination was specifically secured, separately, inde- pendently, and side by side with the requirement of due process, the doctrine was formed, as other doctrines of the law of evidence have been formed, by the course of decision in the courts, cover- ing a long period of time. Searching further, we find nothing to show that it was then thought to be other than a just and useful principle of laiy . None of the great instruments in which we are accustomed to look for the declaration of the fundamental rights made reference to it The privilege was not dreamed of for hun- dreds of years after Magna Chart a (1215), and could not have been implied in the "law of the land" there secured. The Petition of Right. ( 1629). though it insists upon the right secured by Magna Charta to be condemned only by the law of the land, and sets forth, by way of grievance, divers violations of it, is silent upon the practice of compulsory self-incrimination, though it was then a matter of common occurrence in all the courts of the realm. The Bill of Rights of the first year of the reign of William and Mary (1689) is likewise silent, though the practice of questioning the prisoner at his trial had not then ceased. The negative argument which arises out of the omission of all reference to any exemption from compulsory self-incrimination in these three great declarations of English liberty (though it is not supposed to amount to a demonstration) is supported by the posi- tive argument that the Eng;-lish courts and Parliaments, as we have seen, have dealt with the exemption as they would have dealt with any other rule of evidence, apparently without a thought that the question was attected by the law of the land of Magna ChartaT or the due process of law which is its equivalent . *. * * [Here follow references to the amendments to the original Constitution proposed by the states ratifying it.] Thus it appears that four only of the thirteen original states insisted upon incorporating the privilege in the Constitution, and thev separately and simultaneously with the requirement of due process of law, and that three states proposing amendments were silent upnn this subject . It is worthy of note that two of these four states did not incorporate the privilege in their own Constitu- tions, where it would have had a much wider field of usefulness, until many years after. New York in 1821 and Rhode Island in 1842 (its first Constitution). This survey does not tend to show 412 CONSTITUTIONAL PROTECTION OF CIVIL EIGHTS that it was then in this country the universal or even general belief that the privilege ranked among the fundamental and inalienable rights of mankind; and what is more important here, it affirma- . l ively shows that the privilege was not conceived to be inherent in due process of law, but, on the other hand, a right separate, in- dependent, and outside of due process, Congress, in submitting the amendments to the several states, treated the two rights as exclusive of each other. Such also has been the view of the states in framing their own Constitutions, for in every case, except in New Jersey and Iowa, where the due process clause or its equiva- lent is included, it has been thought necessary to include separately the privilege clause. Nor have we been referred to any decision of a state court, save one (State v. Height, 117 Iowa, 650, 91 N. W. 935, 59 L. R. A. 437, 94 Am. St. Rep. 323), where the exemp- tion has been held to be required by due process of law. _ The in- ference is irresistible that it has been the opinion of constitution makers that the privilege, if fundamental in any sense, is not funda- mental in due process of law, nor an essential part of it;. We be- lieve that this opinion is proved to have been correct by every his- torical test by which the meaning of the phrase can be tried. The decisions of this court, though they are silent on the precise question before us, ought to be searched to discover if they present any analogies which are helpful in its decision. The essential elements of due process of law, already established by them, are singularly few, though of wide application and deep significance. We are not here concerned with the effect of due process in re- straining substantive laws, as, for example, that which forbids the taking of private property for public use without compensation. We need notice now only those cases which deal with the princi- "^ples which must be observed in the trial of criminal and civil • causes.(J X)ue process requires that the court which assumes to de- termine the rig j -hts of parties shall have jurisdiction (Pennoyer v. Neff, 95 U. S. 714, 72>Z, 24 L. Ed. 565, 572; Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108, 38 L. Ed. 896; Old Wayne Mut. Life Asso. V. McDpnough, 204 U. S. 8, 27 Sup. Ct. 236, 51 E. Ed. 345), I and that there shall be notice and opportunity for hearing given the parties (Hovey v. Elliott, 167 U. S. 409, 'l7 Sup. Ct. 841, 42 E! Ed. ^iT; Roller v. Holly, 176 U. S. 398, 20 Sup. Ct. 410, .44 E. Ed. 520; and see Londoner v. Denver, 210 U. S. 373, 28 Sup. Ct. 708, 52 L. Ed. 1103). Subject to these two fundamental conditions, which seem to be universally prescribed in all systems of law es- tablished by civilized countries, this court has, up to this time, sus- tained all state laws, statutory or judicially declared, regulating procedure, evidence, and methods of trial, and held them to be consistent with due process of law. * * * The cases proceed upon the theory that, given a court of justice DUE PROCESS OF LAW 4:13 which has jurisdiction, and acts, not artjitrarily, but in conformity, with a general law, upon evidence, and after inquiry made with notice to the parties aflfected and opportunity to be heard, then all the, requirements of due process, so far as it relates to procedure in court and methods of trial and character and efifect of evidence, are complied with. * * * [Here follow quotations from vari- ous cases to this effect.] In Missouri v. Lewis (Bowman v. Lewis) 101 U. S. 22, 25 L. Ed. 989, Mr. Justice Bradley, speaking for the whole court, said i n effect, that the fourteenth amendment would not prevent a state from adopting or continuing the civil law instead of the common law. This dictum has been approved and made an essential part of the reasoning of the decision in Holden v. Hardy, 169 U. S. 387, 389, 18 Sup. Ct. 383, 42 L. Ed. 789, 790, and Maxwell v. Dow, 176 U. S. 598, 20 Sup. Ct. 448, 494, 44 L. Ed. 597. The statement ex- cludes the possibility that the privilege is essential to due process, for it hardly need be said that the interrogation of the accused at his trial is the practice in the civil law. Even if the historical meaning of due process of law and the decisions of this court , did not exclude the privilege from it, it would be going far to rate it as an immutable principle of justice which is the inalienable possession of every citizen of a free gov- ernment. Salutary as the principle may seem to the great mar ioritv. it cannot be ranked with the right to hearing before coib - demnation, the immunity from arbitrary power not acting by gen^ eral laws, and the inviolab ility o f private property. The wisdom of the exemption has never been universally assented to since the days of Bentham. many doubt it to-day, and it is best defended not as an unchangeable principle of universal justice, but as a law f roved by experience to be expedient . See Wigmore, Ev. § 2251. t has no place in the jurisprudence of civilized and free countries outside the domain of the common law, and it is nowhere observed among our own people in the search for truth outside the adminis- tration of the law. It should, must, and will be rigidly observed where it is secured by specific constitutional safeguard s, but there is nothing in it which gives it a sanctity above and before Coutl stitutions themselves . * * * Judgment affirmed. [HabIvAN, J., gave a dissenting opinion,] 4:14 ..^^ONS*riTUTIONAL PEOTECTION OF CIVIL RIGHTS UNITED STATES v. JU TOY. (Supreme Court of United States, 1905. 198 U. S. 253, 25 Sup. Ct. 644, 49 li, Ed. 1040.) Mr. Justice Holmes. This case comes here on a certificate from the circuit court of appeals presenting certain questions of law. It appears that the appellee, being detained by the master of the steamship Doric for return to China, presented a petition for ha- beas corpus to the district court, alleging that he was a native- born citizen of the United States, returning after a temporary departure, and was denied permission to land by the collector of the port of San Francisco. It also appears from the petition that he took an appeal from the denial, and that the decision was af- firmed by the Secretary of Commerce and L,abor. No further grounds are stated. The writ issued, and the United States made return, and answered, showing all the proceedings before the De- partment, which are not denied to have been in regular form, and setting forth all of the evidence and the orders made. The answer also denied the allegations of the petition. Motions to dismiss the writ were made on the grounds that the decision of the Secretary was conclusive, and that no abuse of authority was shown. These were denied, and the district court decided, seemingly on new evidence, subject to exceptions, that Ju Toy was a native-born citizen of the United States. An appeal was taken to the cir- cuit court of appeals, alleging errors the nature of which has been indicated. Thereupon the latter court certified the following ques- lltions: * * * "Third. In a habeas corpus proceeding in a district court of the United States, instituted * * * [upon the grounds of this case], should the court treat the finding and action of such exec- utive officers upon the question of citizenship and other questions of fact as having been made by a tribunal authorized to. decide the same, and as final and conclusive unless it be made affirmativelY to appear that such officers, in the case submitted to them, abused the discretion vested in them, or. in some other wav. in hearing and determining the same, committed prejudicial error ? " * * * The broad question is presented whether or not the decision of the Secretary of Commerce and Labor is conclusive . It was held in United States v. Sing Tuck, 194 U. S. 161, 167, 920, 24 Sup. Ct. 621, 48 L,. Ed. 917, that the act of August 18, 1894 (28 Stat. 372, 390, c. 301, § 1 [U. S. Comp. St. 1901, p. 1303]), purported to make it so, but whether the statute could have that effect con- stitutionally was left untouched, except by a reference to cases where an opinion already had been expressed. To quote the latest first, in Japanese Immigrant Case (Yamataya v. Fisher) 189 U. S. 86, 97, 724, 23 Sup. Ct. 611, 613, 47 L. Ed. 721, it was said: "That DDE PROCESS OF LAW 415 Congress may exclude aliens of a particular race from the United States, prescribe the terms and conditions upon which certain classes of aliens may come to this country, establish regulations for sending out of the country such aliens as come here in violation of law, and commit the enforcement of such provisions, conditions, and regulations exclusively to executive officers, without judicial intervention, are principles firmly established by the decisions of this court." See, also. United States ex rel. Turner v. Williams, 194 U. S. 279, 290, 291, 24 Sup. Ct. 719, 48 L. Ed. 979, 983, 984; Chin Bak Kan v. United States, 186 U. S. 193, 200, 22 Sup. Ct. 891, 46 I.. Ed. 1121, 1125. In Fok Young Yo v. United States, 185 U. S. 296, 304, 305, 22 Sup. Ct. 686, 46 L. Ed. 917, 921, it was held that the decision of the collector of customs on the right of transit across the territory of the United States was conclusive, and, still more to the point, in Lem Moon Sing v. United States, 158 U. S. 538, 15 Sup. Ct. 967, 39 L. Ed. 1082, where the petitioner for ha- beas corpus alleg-ed facts which, if true, gave him a right to enter and remain in the countrv. it was held that the decision of the collector was final as to whether or not he belonged to the privi- leged class. It is true that it may be argued that these cases are not directly conclusive of the point now under decision. It may be said that the parties concerned were aliens, and that although they alleged absolute rights, and facts which it was contended went to the ju- risdiction of the officer making the decision, still their rights were only treaty or statutory rights, and therefore were subject to the implied qualification imposed by the later statute, which made the decision of the collector with regard to them final. The mean- ing of the cases, and the language which we have quoted, is not satisfied by so narrow an interpretation, but we do not delay upon them. They can be read. It is established, as we have said, that the act purports to make the decision of the Depar tment fi nal, whatever the ground on which the right to enter the country is claimed, — as well when it is citizenship as when it is domicil, and the belonging to a class ex- cepted from the exclusion acts_. United States v. Sing Tuck, 194 U. S. 161, 167, 24 Sup. Ct. 621, 48 L. Ed. 917, 920; Lem Moon Sing V. United States, 158 U. S. 538, 546, 547, 39 L,. Ed. 1082, 15 Sup. Ct. Rep. 967. It also is established by the former case and others which it cites that the relevant portion of the act of August 18, 1894 (28 Stat. 372, c. 301), is not void as a whole. The statute has been upheld and enforced. But the relevant portion being a single section, accomplishing all its results by the same general words, must be valid as to all that it embraces, or altogether void. An exception of a class constitutionally exempted cannot be read into those general words merely for the purpose of saving what 416 CONSTITUTIONAL PROTECTION OF CIVIL BIGHTS remains. That has been decided over and over again * * * [citing U. S. V. Reese, 92 U. S. 214, and other cases]. It necessa- rily follows that when such words are sustained, they are sus- tained to their full extent. In view of the cases which we have cited it seems no longer open to discuss the question propounded as a new one. Therefore we do not analyze the nature of the right of a person presenting him- self at the frontier for admission. In re Ross (Ross v. Mclntyre) 140 U. S. 453, 464, 11 Sup. Ct. 897, 35 L. Ed. 581, 586. But it is not improper to add a few words. The petitioner, although physically within our boundaries, is to be regarded as if he had been stopped at the limit of our jurisdiction, and kept there while his right to enter was under debate. If, for the purpose of argument, we as- sume that the fifth amendment applies to him, and that to deny entrance to a citizen is to deprive him of liberty, we nevertheless are of opinion that with regard to him due process of law does not require judicial trial. That is the result of the cases which we have cited, and the almost necessary result of the power of Con- gress to pass exclusion laws. That the decision may be intrusted to an executive ofificer, and that his decision is due process of lavy . was affirmed and explained in Nishimura Ekiu v. United States, 142 U. S. 651, 660, 12 Sup. Ct. 336, 35 L. Ed. 1146, 1149, and in Fong Yue Ting v. United States, 149 U. S. 698, 713, 13 Sup. Ct. 1016, 37 L. Ed. 905, 913, before the authorities to which we already have re- ferred. It is unnecessary to repeat the often-quoted remarks' of Mr. Justice Curtis, speaking for the whole court in Den ex dem. Murray V. Hoboken Land & Improv. Co., 18 How. 272, 280, 15 L. Ed. 372, 376, to show that the requirement of a judicial trial does not prevail in everv case. L,em Moon Sing v. United States, 158 U. S. 538, 546, 547, 15 Sup. Ct. 967, 39 L. Ed. 1082, 1085 ; Japanese Immi- grant Case (Yamataya v. Fisher) 189 U; S. 86, 100, 23 Sup. Ct. 611, 47 L. Ed. 721, 725; Public Clearing House v. Coyne, 194 U. S. 497, 508, 509, 24 Sup. Ct. 789, 48 L. Ed. 1092, 1098. We are of opinion that * * * the third question should be answered, "Yes." * * * So certified. [Brewer, J., gave a dissenting opinion, in which Peckham, J;, concurred. Day, J., also dissented.] DENT v. WEST VIRGINIA. (Supreme Court of United States, 1889. 129 U. S. 114, 9 Sup. Ct. 231, 32 L. Ed. 623.) See ante, p. 231, for a report of this case. POLITICAL AND PUBLIC EIGHTS 417 POLITICAL AND PUBLIC RIGHTS* UNITED STATES v. WONG KIM ARK. (Supreme Court of United States, 1898. 169 U. S. 649, 18 Sup. Ct 456, 42 L. Ed. 890.) [Appeal from the United States District Court for the Northern District of California. The col lector of t he port of San F ranc isco de- nied admission to the country to Wong Kim Ark, a Chinese person who was admitted to have been born in California and to be then returning from a temporary visit to China. He was ordered to be discharged upon a writ of habeas corpus, and the United States appealed.] Mr. Justice Gray. * * * The question presented by the rec- ord is whether a child born in the United States, of parents of Chinese descent, who at the time oi his birth are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the iirst clause ol the fourteenth amendment of the Constitution: "All " persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside ." I. In construing any act of legislation, whether a statute enacted by the legislature, or a Constitution established by the people as the su- preme law of the land, regard is to be had, not only to all parts of the ■act itself, and of any former act of the same lawmaking power, of which the act in question is an amendment, but a lso to the condition and to the history of the law as previously existingTand in the light of which the new act must be read and interpreted. The Constitution of the United States, as originally adopted, uses the words "citizen of the United States" and "natural-born citizen of the United States." By the original Constitution, every representative in Congress is required to have been "seven years a citizen of the Unit- ed States," and every senator to have been "nine years a citizen of the United States" ; and "no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Consti- tution, shall be eligible to the office of president." The fourteenth article of amendment, besides declaring that "all persons born or nat- uralized in "the United States, and subject to the jurisdiction thereof, 1 For discussion of principles, see Blact, Const. Law (3d Ed.) H 234, 244. ttat.t. Cases Consi.Ii. — 27 418 POLITICAL AND PUBLIC RIGHTS are citizens of the United States and of the state wherein they reside," also declares that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any state deprive any person of life, liberty, or property, without due process of law ; nor deny to any person within its juris- diction the equal protection of the laws." And the fifteenth article of 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 5tate, on account of race, color, or previous condition of servitude." The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that "all persons born or naturalized in the United States , and subject to the jurisdiction thereof, are citizens of the United States." In this, as in other respects, it r nust be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162, 22 L. ^d. 627; Ex parte Wilson, 114 U. S. 417, 422, 5 Sup. Ct. 935, 29 L. Ed. 89; Boyd v. U. S., 116 U. S. 616, 624, 625, 6 Sup. Ct. 524, 29 L. Ed. 746; Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564, 31 L. Ed. 508. The language of the Constitution, as has been well said, could not be understood without reference to the common law. 1 Kent, Comm. 336 ; Bradley, J., in Moore v. U. S., 91 U. S. 270, 274, 23 L. Ed. 346. * * * II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance — also called "ligeal- ty," "obedience," "faith," or "power" — of the king. The principle em- braced all persons born within the king's allegiance, and subject to his protection. Such allegiance and protection were mutual, — as expressed in the maxim, "Protectio trahit subjectionem, et subjectio protec- tionem," — and were not restricted to natural-born subjects and nat- uralized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king's dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king. This fundamental principle, with these qualifications or explana- tions of it, was clearly, though quaintly, stated in the leading case known as Calvin's Case, or the Case of the Postnati, decided in 1608, " after a hearing in the Exchequer Chamber before the Lord Chancellor and all the judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin's Case, 7 Coke, 1, 4b-6a, 18a, 18b; Ellesmere, on Postnati, 62-64; s. c. 2 How. St. Tr. 559, 607, 613-617, 639, 640, 659, 679. POLITICAL AND PUBLIC RIGHTS 419 The English authorities ever since are to the like effect. Co. Litt. 8a, 128b ; Lord Hale, in Harg. Law Tracts, 210, and in 1 Hale, P. C. 61, 62; 1 Bl. Comm. 366, 369, 370, 374; 4 Bl. Comm. 74, 92; Lord Kenyon, in Doe v. Jones, 4 Term R. 300, 308; Cockb. Nat. 7; Dicey, Confl. Laws, pp. 173-177, 741. * * * It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the do- minion s pos sessed by the crown of England, were within the al- legiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign : and there- f ore every child born in England ' of alien parents was a natural- born subject, unless the child of an ambassador or other diolo- matic agent of a foreign state, or of an alien enemy in hostile oc- cupation of the place where the child was "born. III. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independ- ence, and in the United States afterwards, and continued to pre- vail under the Constitution as originally established. * * * In Inglis V. Sailors' Snug Harbor (1830) 3 Pet. 99, 7 L. Ed. 617, * * * Mr. Justice Story [said] : "Two things usually concur, to create citizenship : First, birth locally within the dominions of the sovereign ; and, secondly, birth within the protection and obe- dience, or, in other words, within the ligeance, of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and conse- quently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon pe- culiar reasons, and which, indeed, illustrate and confirm the gen- eral doctrine. Thus, a person who is born on the ocean is a sub- ject of the prince to whom his parents then owe allegiance; for he IS still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sover- eigns. So the children of an ambassador are held to be subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince." 3 Pet. 155, 7 L. Ed. 617. "The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens." 3 Pet. 156, 7 L. Ed. 617. " Nothing is bette r settled at the common law than the doctrine that the chil- dren, even of aliens, born in a country, while the parents are res- ident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth." 3 Pet. 164, 7 L. Ed. 617. * * * 2 The authorities quoted and cited by the court use the words "British do- minions" instead of "England." ■i20 POLITICAL AND PUBLIC EIGHTS IV. It was contended by one of the learned counsel for the Unit- ed States that the rule of the Roman law, by which the citizenship of the child followed that of the parent, was the true rule of inter- national law as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth -within the realm, originally founded on feudal considerations. But at the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, "citizens, true and native-born citizens, are those who are born within the extent of the dominion of France," and "mere birth within the realm gives the rights of a native-born citizen, in- dependently of the origin of the father or mother, and of their dom- icile" ; and children born in a foreign country, of a French father who had not established his domicile there, nor given up the in- tention of returning, were also deemed Frenchmen, as Laurent says, by "a favor, a sort of fiction," and Calvo, "by a sort of fiction of exterritoriality, considered as born in France, and therefore in- vested with French nationality." * * * The Code Napoleon of 1807 changed the law of France, and adopted, instead of the rule of country of birth, jus soli, the rule of descent or blood, jus sanguinis, as the leading principle. * * * The later modifications of the rule in Europe rest upon the Con- stitutions, laws, or ordinances of the various countries, and have no important bearing upon the interpretation and effect of the Constitution of the United States. The English naturalization act of 33 Vict. (1870) c. 14, and the commissioners' report of 1869, out of which it grew, both bear date since the adoption of the four- teenth amendment of the Constitution; and, as observed by Mr. Dicey, that act has not affected the principle by which any person who, whatever the nationality of his parents, is born within the British dominions, acquires British nationality at birth, and is a natural-born British subject. Dicey, Confl. Laws, 741. At the time of the passage of that act, although the tendency on the con- tinent of Europe was to make parentage, rather than birthplace, the criterion of nationality, and citizenship was denied to the na- tive-born children of foreign parents in Germany, Switzerland, Sweden, and Norway, yet it appears still to have been conferred upon such children in Holland, Denmark, and Portugal, and, when claimed under certain specified conditions, in France, Belgium, Spain, Italy, Greece, and Russia. Cockb. Nat. 14—21. There is, therefore, l ittle ground for the theory that at the tim e of th e adoption ot the lourteentn amendment of the Constitution of the United States there was any settled and definite rule of in-" ternational law generally recognized bv civilized nations, incon- sistent with the ancient rule of citizenship by birth within the do- minion. POLITICAL AND PUBLIC RIGHTS 421 Nor can it be doubted that it is the inherent right of every inde- pendent nation to determine for itself, and according to its own Constitution and laws, what classes of persons shall be entitled to its citizenship. Both in England and in the United States, indeed, statutes have been passed at various times enacting that certain issue born abroad of English subjects, or of American citizens, respectively, should inherit, to some extent at least, the rights of their parents. But those statutes applied only to cases coming within their pur- port, and they have never been considered, in either country, as af- fecting the citizenship of persons born within its dominion. * * * It was enacted by the statute of February 10, 1855, c. 71, that "persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: provided, however, that the rights of citizen- ship shall not descend to persons whose fathers never resided in the United States." 10 Stat. 604; Rev. St. § 1993 (U. S. Comp. St. 1901, p. 1268). It thus clearly appears that, during the half century intervening between 1802 and 1855, there was no legislation whatever for the citizenship of children born abroad, during that period, of Amer- ican parents who had not become citizens of the United States be- fore the act of 1802 ; and that the act of 1855, l ike every other act of congress upon the subject, has, by express proviso, restricted the right of citizenship, thereby conferred upon foreign-born chil- dren of American citizens, to those children themselves, unless they became residents of the United States . Here is nothing to countenance the theory that a general rule of citizenship by blood or descent has displaced in this country the fundamental rule of citizenship hv birth within its sovereignty. * * * Y_ * * * The f^j-st section of the fourteenth amendment of the Constitution begins with the words, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are cit- izens of the United States and of the state wherein they reside." As appears upon the face of the amendment, as well as from the history of the times, this v yas not intended to impose any new re- strictions upon citizenship, or to prevent any persons from becom- ing citizens by the fact of birth within the United States^ who would thereby have become citizens according to the law existing before its adoption! It is declaratory in form, and enabling and extending in effect. Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford (1857) 19 How. 393, 15 L,. Ed. 691 ; and to put it beyond doubt that all blacks, as well as 422 POLITICAL AND PUBLIC EIGHTS whites, born or naturalized within the jurisdiction of the United States, are citizens of the United States. Slaughter House Cases (1873) 16 Wall. 36, 73, 21 L. Ed. 394; Strauder v. West Virginia (1879) 100 U. S. 303, 306, 25 L. Ed. 664; Ex parte Virginia (1879) 100 U. S. 339, 345, 25 L. Ed. 676; Neal v. Delaware (1880) 103 U. S. 370, 386, 26 E. Ed. 567; Elk v. Wilkins (1884) 112 U. S. 94, 101, 5 Sup. Ct. 41, 28 L. Ed. 643. But the opening words, "All persons born," are general, not to say universal, restricted only by place and jurisdiction, and not by color or race, as was clearly recog- nized in all the opinions delivered in the Slaughter House Cases, above cited. * * * Mr. Justice Miller, indeed, while discussing the causes which led ^ to the adoption of the fourteenth amendment, made this remark : "The phrase 'subject to its jurisdiction' was intended to exclude from its operation children of mmisters, consuls, and citizens or subjects of foreign states, born within the United States. 16 Wall. 73, 21 L. Ed. 394. This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any refer- ence to authorities ; and that it was not formulated with the same ., care and exactness as if the case before the court had called for an exact definition of the phrase is apparent from its classing foreign ministers and consuls together; whereas it was then well settled law, as has since been recognized in a judgment of this court in which Mr. Justice Miller concurred, that consuls, as such, and un- less expressly invested with a diplomatic character in addition to their ordinary powers, are not considered as intrusted with au- thority to represent their sovereign in his intercourse with foreign states, or to vindicate his prerogatives, or entitled by the law of nations to the privileges and immunities of ambassadors or public ministers, but are subject to the jurisdiction, civil and criminal, of the courts of the country in which they reside. 1 Kent, Comm. 44 ; Story, Confl. Laws, § 48; Wheat. Int. Law (8th Ed.) § 249; The Anne (1818) 3 Wheat. 435, 445, 446, 4 L. Ed. 428; Gittings v. Crawford (1838) Taney, 1, 10, Fed. Cas. No. 5,465; In re Baiz (1890) 135 U. S. 403, 424, 10 Sup. Ct. 854, 34 L. Ed. 222. * * * The only adjudication that has been made by this court upon the meaning of the clause "and subject to the jurisdiction thereof," in the leading provision of the fourteenth amendment, is Elk v. Wil- kins, 112 U. S.94, 5 Sup. Ct. 41. 28 L. Ed. 643, i n which it was de- cided that an Indian born a member of one of the Indian tribes within the United States, which still existed and was recognized as an Indian tribe by the United States, who had voluntarily sep- arated himself from his tribe, and taken up his residence among the white citizens of a state, but who did not appear to have been naturalized or taxed or in any way recognized or treated as a cit- izen, either by the United States or by the state, was not a citizen POLITICAL AND PUBLIC RIGHTS 423 of the United States, as a person born in the United States, "and subject to the jurisdiction thereof," within the meaning of the clause in question. That decision was placed upon the grounds that the meaning of those words was "not merely subject m some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and imrnediate allegiance "! that by the Constitution, as originally established, "Indians not taxed" were excluded from the persons according to whose numbers representatives in congress and direct taxes were apportioned among the several states, and congress was empow- ered to regulate commerce, not only "with foreign nations," and among the several states, but "with the Indian tribes"; that the Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states, but were alien nations, distinct political communities, the members of which owed immediate allegiance to their several tribes, and were not part of the people of the United States ; that the alien and dependent con- dition of the members of one of those tribes could not be put off at their own will, without the action or assent of the United States ; and that they were never deemed citizens, except when natural- ized, collectively or individually, under explicit provisions of a treaty, or of an act of Congress ; and, therefore, that "Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more 'born in the United States, and subject to the jurisdiction thereof,' within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that govern- ment, or the children born within the United States of ambassa- dors or other public ministers of foreign nations." And it was observed that the language used, in defining citizenship, in the first section of the civil rights act of 1866, by the very Congress which framed the fourteenth amendment, was "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed." 112 U. S. 99-103, 5 Sup. Ct. 44-46, 28 L. Ed. 643. * * * The decision in Elk v. Wilkin^ con eerSeS only members of the Indian tribes within the United "States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African, or Mongolian descent, not in the diplomatic service of a foreign country. The real object of the fourteenth amendment of the Constitu- tion, in qualifying the words "all persons born in the United 424 POLITICAL AND PUBLIC EIGHTS States" by the addition "a nd subject to the jurisdiction thereof, " would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases.@ children hnrn nf alien en- emies in hostile occupation, ana^ hildren of diplomatic representa- tives of a foreign state , — both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been rec- ognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin's Case, 7 Coke, 1, 18b ; Cockb. Nat. 7; Dicey, Confl. Laws, 177; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155, 7 L. Ed. 617; 2 Kent, Comm. 39, 42. The principles upon which each of those exceptions rests were long ago distinctly stated by this court. * * * [Here follows a quotation from United States v. Rice, 4 Wheat. 246, 4 L. Ed. 562 (1819), to the effect that the military occupation of a part of Maine by the British during the War of 1812 temporarily sus- pended the sovereignty of the United States there.] In the great case of The Exchange (1812) 7 Cranch, 116, 3 L. Ed. 287, the grounds upon which foreign ministers are, and other aliens are not, exempt from the jurisdiction of this country, were set forth by Chief Justice Marshall in a clear and powerful train of reasoning, of which it will be sufficient, for our present purpose, to give little more than the outlines. The opinion did not touch upon the anomalous case of the Indian tribes, the true relation of which to the United States was not directly brought before this court until some years afterwards, in Cherokee Nation v. Georgia (1831) 5 Pet. 1, 8 L,. Ed. 25 ; nor upon the case of a suspension of the sovereignty of the United States over part of their territory by reason of a hostile occupation, such as was also afterwards pre- sented in U. S. v. Rice, above cited. But in all other respects it covered the whole question of what persons within the territory of the United States are subject to the jurisdiction thereof. The Chief Justice first laid down the general principle: "The jurisdiction of the nation within its own territory is necessarily ex- clusive and absolute. It is susceptible of no limitation not im- posed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an irivestment of that sov- ereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other le- gitimate source. This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the un- POLITICAL AND PUBLIC EIGHTS 425 certainties of construction ; but, if understood, not less obligatory." 7 Cranch, 136, 3 L. Ed. 287. He then stated, and supported by argument and illustration, the propositions that "this full and absolute territorial jurisdiction, be- ing alike the attribute of every sovereign, and being incapable of conferring extraterritorial power," has "given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation," the first of which is the exemption from arrest or detention of the person of a foreign sovereign entering its territory with its license, because "a foreign sovereign is not understood as intending to subject himself to a jurisdiction incompatible with his dignity and the dignity of his nation" ; "a second case, standing on the same principles with the first, is the immunity which all civilized nations allow to for- eign ministers"; "a third case, in which a sovereign is understood to cede a portion of his territorial jurisdiction, is where he allows the troops of a foreign prince to pass through his dominions" ; and, in conclusion, that "a public armed ship, in the service of a foreign sovereign, with whom the government of the United States is at peace, and having entered an American port open for her reception, on the terms on which ships of war are generally permitted to en- ter the ports of a friendly power, must be considered as having come into the American territory, under an implied promise that while necessarily within it, arid demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country." 7 Cranch, 137-139, 147, 3 L. Ed. 287. * * * The reasons for not allowing to other aliens exemption "from the jurisdiction of the country in which they are found" were stated as follows : "When private individuals of one nation spread them- selves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when mer- chant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local alle- giance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries are not employed by him, nor are they engaged in national pursuits. Consequently, there are powerful motives for not exempting per- sons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter, can never be construed to grant such exemption." 7 Cranch, 144, 3 L. Ed. 287. * * * 426 POLITICAL AND PUBLIC EIGHTS These considerations confirm the view, already expressed in this opinion, that the opening sentence of the fourteenth amendment is throughout affirmative and declaratory, intended to allay doubts and to settle controversies which had arisen, and not to impose any new restrictions upon citizenship. * * * This sentence of the fourteenth amendment is declaratory of ex- isting rights, and affirmative of existing law, as to each of the qualifications therein expressed, — "born in the United States," "naturalized in the United States," and "subject to the jurisdiction thereof"; in short, as to everything relating to the acquisition of citizenship by facts occurring within the limits of the United States. But it has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regu- lated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish a uniform rule of naturalization. The effect of the enactments conferring citizenship on foreign- born children of American parents has been defined, and the funda- mental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been af- firmed, in well-considered opinions of the executive departments of the government, since the adoption of the fourteenth amendment of the Constitution. * * * [Here follow quotations from these opinions, which hold] that s uch statutes cannot, consistently with our own established rule ot citizenship by birth in this country/ operate extraterritorially so far as to relieve any person born ancjl residing in a foreign country, and subject to its government, from, his allegiance to that country . * * * The foregomg considerations and authorities irresistibly lead us to these conclusions: The fourteenth amendment affirms the an- cient and fundamental rule of citizenship by birth within the terri- tory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the excep- tions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The amendment, in clear words and in mani- fest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, dom- iciled within the United States. Every citizen or subject of an- other country, while domiciled here, is within the allegiance and_ the protection, and consequently subject to the jurisdiction, of the U nited States. His allegiance to the United States is direct an3 iminediate, and, although but local and temporary, continuing only POLITICAL AND PUBLIC RIGHTS 427 SO long as h^. re main within our territory, is yet, in the words of lyord Coke in Calvin's Case, 7 Rep. 6a, strong enough to make a natural subject, for, if he hath issue here, that issue is a natural- born subject" ; and his child, as said by Mr. Binney in his essay before quoted, "if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same prin- ciple." It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides, seeing that, as said by Mr. Webster, when secretary of state, in his report to the president on Thrasher's Case in 1851, and since repeated by this court : "Independently of a residence with inten- tion to continue such residence; independently of any domicilia- tion ; independently of the taking of any oath of allegiance, or of renouncing any former allegiance, — it is well known that by the public law an alien, or a stranger born, for so long a time as he con- tinues within the dominions of a foreign government, owes obedi- ence to the laws of that government, and may be punished for trea- son or other crimes as a native-born subject might be, unless his case is varied by some treaty stipulations." Executive Documents H. R. No. 10, Ist Sess. 32d Cong. p. 4; 6 Webster's Works, 526; Carlisle v. United States, 16 Wall. 147, 155, 21 L. Ed. 426; Cal- vin's Case, 7 Rep. 6a; Ellesmere, Postnati, 63; 1 Hale, P. C. 62; 4 Bl. Comm. 74, 92. * * * VI. * * * It is true that Chinese persons born in China cannot be naturalized, like other aliens, by proceedings under the naturaliza- tion laws. But this is for want of any statute or treaty authorizing or permitting such naturalization, as will appear by tracing the his- tory of the statutes, treaties, and decisions upon that subject, al- ways bearing in mind that statutes enacted by Congress, as well as treaties made by the president and senate, must yield to the para-, mount and supreme law of the Constitution. The power, granted to Congress by the Constitution, "to estab- ^ Hsh an uniform rule of naturalization," was long ago adjudged by j this court to be vested exclusively in congress. Chirac v. Chirac ^ (1817) 2 Wheat. 259, 4 L. Ed. 234. For many years after the estab- ] lishment of the original Constitution, and until two years after the adoption of the fourteenth amendment, congress never authorized the naturalization of any one but "free white persons." * * * ■ By the act of July 14, 1870, c. 254, § 7, for the first time, the natu- ' ralization laws were "extended to aliens of African nativity and to persons of African descent." 16 Stat. 256. This extension, as embodied in the Revised Statutes, took the form of providing that those laws should "apply to aliens [being free white persons, and to aliens] of African nativity and to persons of African descent" ; and it was amended by the act of Feb. 18, 1875, c. 80, by inserting the words above printed in brackets. Rev. St. (2d Ed.) § 2169, 428 POLITICAL AND PUBLIC RIGHTS 18 Stat. 318 (U. S. Comp. St. 1901, p. 1333). Those statutes were held, by the Circuit Court of the United States in California, not to enlbrace Chinese aliens. In re Ah Yup (1878) 5 Sawy. 155, Fed. Cas. No. 104. And by the act of May 6, 1882, c. 126, § 14, it was expressly enacted that, "hereafter no state court or court of the United States shall admit Chinese to citizenship." 22 Stat. 61 (U. S. Comp. St. 1901, p. 1333). In Fong Yue Ting v. U. S. (1893), above cited, this court said: "Chinese persons not born in this country have never been rec- ognized as citizens of the United States, nor authorized to become such under the naturalization law.s." 149 U. S. 716, 13 Sup. Ct. 1023, 37 L. Ed. 905. * * * The power of naturalization, vested in congress by the Consti- tution, is a power to confer citizenship, not a power to take it "^way. * * * Congress having no power to abridge the rights conferred by the Constitution upon those who have become natu- ralized citizens by virtue of acts of Congress, a fortiori no act or omission of congress, as to providing for the naturalization of parents or children of a particular race, can affect citizenship ac- c[uired as a birthright, by virtue of the Constitution itself, without any aid of legislation . The fourteenth amendment, while it leaves the power, where it was before, in congress, to regulate naturaliza- tion, has conferred no authority upon congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship. * * * VII. Upon the fact s agreed in this case, th e Amer ican citizen- ship which Wong Kim Aric acquired by hirth withm the United States has not been lost or taken away by anything happening since his birth . No doubt he might himself, after coming of age, renounce this citizenship, and become a citizen of the country of his parents, or of any other country; for by our law, as solemnly ■declared by congress, "the right of expatriation is a natural and inherent right of all people," and "any declaration, instruction, opinion, order or direction of any officer of the United States, which denies, restricts, impairs or questions the right of expatria- tion, is declared inconsistent with the fundamental principles of the republic." Rev. St. § 1999, re-enacting Act July 27, 1868, c. 249, § 1, 15 Stat. 223, 224 (U. S. Comp. St. 1901, p. 1269). Whether any act of himself, or of his parents, during his minority, could have the same effect, is at least doubtful. But it would be out of place to pursue that inquiry. * * * Order affirmed. [FuLLBR, C. J., gave a dissenting opinion, in which Harlan, J., concurred.] POLITICAL AND PUBLIC RIGHTS 429 MAXWELL V. DOW. (Supreme Court of United States, 1900. 176 U. S. 581, 20 Sup. Ct. 448, 494, 44 L. Ed. 597.) [Error to the Supreme Court of Utah. Upon an information filed against Maxwell, cha rging- him witVi r obbery, he was tried in Utah by a jury of eight iurors, was found guilty, and sent to prison . He applied for a writ of habeas corpus upon the ground, among others, tha t this procedure, though authorized by the Utah Con- stitution, abridged his privilefres and immunities as a citizen of the " United States, in yiolation of t he fourteenth amendment of the fed- eral Constitution. The Utah Supreme Court denied his petition, and this writ of error was taken.] Mr. Justice Peckham. * * * What are the privileges and immunities of a citizen of the United States which no state can abridge? Do they include the right to be exempt from trial, fori an infamous crime, in' a state court and under state authority ex-/ cept upon presentment by a grand jury? And do they also include! the right in all criminal prosecutions in a state court to be tried byl a jury composed of twelve jurors? That a jury composed, as at common law, o f twelve jurors was i ntended by the sixth amendment to the federal Constitution, there can 'be no doubt . Thompson v. Utah. 170 U. S. 343. 349. 18 Sup." Ct. 620, 42 L. Ed. 1061. And as the right of trial by jury in cer- tain suits at common law is preserved by the seventh amendment, such a trial i mplies that there shall be an unanimous verdict of twelve j iirnrsTn ^11 federal courts where a jury trial is held. Amer- ican Pub. Co. y. Fisher, 166 U. S. 464, 17 Sup. Ct. 618, 41 L. Ed. 1079; Springville v. Thomas, 166 U. S. 707, 17 Sup. Ct. 717, 41 L. Ed. 1172. It would seem to be quite plain that the provision in the Utah Constitution for a jury of eight jurors in all state criminal trials, for other than capital offenses, violates the sixth amendment, pro- vided that amendment is now to be construed as applicable to crim- inal prosecutions of citizens of the United States in state courts. ' It is conceded that there are certain privileges or immunities pos- sessed by a citizen of the United States, because of his citizenship, and that they cannot be abridged by any action of the states. In order to limit the powers which it was feared might be claimed or exercised by the federal government, under the provisions of the Constitution as it was when adopted, the first ten amendments to that instrument were proposed to the legislatures of the several states by the first Congress on the 25th of September, 1789. They were intended as restraints and limitations upon the powers of the general government, and were not intended to and did not have any effect upon the powers of the respective states. This has been many times decided. * * * 430 POLITICAL AND PUBLIC EIGHTS It is claimed, however, that since the adaption of the fourteenth amendment the effect of the former amendments has been thereby changed and greatly enlarged. It is now urged in substance that all the provisions contained in the first ten amendments, so far as they secure and recognize the fundamental rights of the individual, as agamst the exercise of federal power, are by virtue of this amendment to be regarded as privileges or immunities of a citizen of the United States, and therefore the states cannot provide for any procedure in state courts which could not be followed in a federal court bec angp nf tVip limitations contained in those amend- ments. This was also the contention made upon the argument in the Spies Case, 123 U. S. 131, 151, 8 Sup. Ct. 22, 31 L. Ed. 80; but in the opinion of the court therein, which was delivered by Mr. Chief Justice Waite, the question was not decided because it was held that the case did not require its decision. In the Slaughter-House Cases, 16 Wall. Z6, 21 h. Ed. 394, the subject of the privileges or immunities of citizens of the United States, as distinguished from those of a particular state, was treat- ed by Mr. Justice Miller in delivering the opinion of the court. He stated that the argument in favor of the plaintiffs, claiming that the ordinance of the city of New Orleans was invalid, rested wholly on the assumption that the citizenship is the same and the privi- leges and immunities guaranteed by the Fourteenth Amendment are the same as to citizens of the United States and citizens of the several states. This he showed to be not well founded ; that there was a citizenship of the United States and a citizenship of the states, which were distinct from each other, depending upon differ" ent cTiaracteristics and circumstances in the individual ; that it was, onlv privilefres an^ immiinitipg nf tVip ritiy^n of the United States that were placed by the amendment under the protect ion of thg. federal Constitution , and that the privileges and immunities of a citizen of a state, whatever they might be, were not intended to have any additional protection by the paragraph in question, but they must rest for their security and protection where they have heretofore rested. He then proceeded to inquire as to the meaning of the words "privileges and immunities" as used in the amendment, and said that the first occurrence of the phrase in our constitutional history is found to be in the fourth article of the old Confederation, in which it was declared "that the better to secure and perpetuate mutual friendship and intercourse among the peoplp of the differ- ent states in this union the free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several states ; and the people of each state shall have free ingress and egress to and from any other state, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties. POLITICAL AND PUBLIC RIGHTS 431 impositions, and restrictions as the inhabitants thereof respective- ly." A provision corresponding to this he found in the Constitu- tion of the United States in section 2 of the fourth article, wherein it is provided that "the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states." What those privileges were is not defined in the Constitution, but the justice said there could be but little question that the purpose of both those provisions was the same, and that the privileges and immunities intended were the same in each. He then referred to the case of Corfield v. Coryell, decided by Mr. Justice Washington in the circuit cOurt for the district of Pennsylvania, in 1823 (4 Wash. C. C. 371, Fed. Cas. No. 3,230), where the question of the meaning of this clause in the Constitution was raised. Answering the question, what were the privileges and immunities of citizens of the several states, Mr. Justice Washington said in that case : " 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 : tree, inaependent, and sovereign. What these fundamental prin ciples are It would perhaps be more tedious than difficult to enu merate. They may, however, be all comprehended under the fol lowing general heads: Protection by the government, the enjoy ment of life and liberty with the right to acquire and possess prop erty of every kind, and to pursue and obtain happiness and safety,, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole." Having shown that prior to the fourteenth amendment the leg- islation under review would have been regarded as relating to the privileges or immunities of citizens of the state, with which the United States had no concern, Jiistice Miller continued : "It would be the vainest show of learning to attempt to prove by citations of authority, that up to the adoption of the recent amend- ments no claim or pretense was set up that those rights depended on the federal government for their existence or protection, beyond the very few express limitations which the federal Constitution im- posed upon the states — such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But with the exception of these and a few other restrictions the entire domain of the privileges and im- munities of citizens of the states, as above defined, lay within the- constitutional and legislative power of the states, and without that of the federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no state should make Of enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protec- 432 POLITICAL AND PUBLIC RIGHTS tion of all the civil rights, which we have mentioned, from the, states to the federal government? And where it is declared that Congress shall have the power to enforce that article, was it in- tended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the states ? "All this and more must follow, if the proposition of the plain- tiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by state legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the states, in their most ordinary and usual functions, as in its judgment it may think proper on all such sub- jects. And, still further, such a construction, followed by the re- versal of the judgments of the supreme court of Louisiana in these cases, would constitute this court a perpetual censor upon all legis- lation of the states, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights as they existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the struc- ture and spirit of our institutions ; when the effect is to fetter and degrade the state governments by subjecting them to the control of Congress in the exercise of powers heretofore universally con- ceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the state and federal governments to each other and of both these governments to the people, — the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt. We are convinced that no such r e sults were intended by the Congress which proposed thes~ amenaments, nor b y the legisl atures of the states which ratified them. " ' * If the rights granted by the Louisiana legislature did not in- fringe upon the privileges or immunities of citizens of the United States, the question arose as to what such privileges were, and in enumerating some of them, without assuming to state them all, it was said that a citizen of the United States, as sucn;'had the right to come to the seat of government to assert claims or transact busi- nesspto seek the protection of the government or to share its offi- ces y)he had the right of free access to its seaports^its various of- fices throughout the countrypand to the courts of justice in the several statea7 to demand the care and protection of the general government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government V^the right, POLITICAL AND PUBLIC EIGHTS ^3 with others, to peaceably assemble and petition for a redress of grievances *8the right to the writ of habeas corpusf'and to use the navigable waters of the United States, however they may penetrate the territory of the several states f^-also^U rights secured to our citizens by treaties with foreign nations^^the right to become citi- zens of any state in the Union by a bona fide residence therein, with the same rights as other citizens of that state ;*'^and the rights secured to him by the thirteenth and fifteenth amendments to the Constitution. A right, such as is claimed here, was not mentioned, and we may suppose it was regarded as pertaining to the state, and not covered by the amendment. * * * We have made this extended reference to the case because of its great importance, the thoroughness of the treatment of the subject, and the great ability displayed by the author of the opinion. Al- though his suggestion that only discrimination by a state against the negroes as a class or on account of their race was covered by the amendment as to the equal protection of the laws has not been affirmed by the later cases, yet it was but the expression of his belief as to what would be the decision of the court when a case came before it involving that point. The opinion upon the matters actually involved and maintained by the judgment in the case has never been doubted or overruled by any judgment of this court. It remains one of the leading cases upon the subject of that por- tion of the fourteenth amendment of which it treats. The definition of the words "privileges and immunities," as given by Mr.- Justice Washington, was adopted in substance in Paul v. Virginia, 8 Wall. 168, 180, 19 L. Ed. 360, and in Ward v. Maryland, 12 Wall. 418, 430, 20 L. Ed. 453. These rights, it is said in the Slaughter-House Cases, have always been held to be the class of rights which the state governments were created to establish and secure. * * * It was said in Minor v. Happersett, 21 Wall. 162, 22 L. Ed. 627, that th e amendment did not add to the privileges and immunities of a citizen; it simpl y filfnisVipH an aHrUHnna ] g-naranty for th^ protection of such as he already had. And in Re Kemmler, 136 U. £5. 436, 44y, lU Bup. Ct. 930, 934, 34 L. Ed. 519, 524, it was stated by the present Chief Justice that: "The fourteenth amendment did not radically change the whole theory of the relations of the state and federal governments to each other, and of both govern- ments to the people. The same person may be at the same time a citizen of the United States and a citizen of a state. Protection to life, liberty, and property rests primarily with the states, and the amendment furnishes an additional guaranty againsf any encroach- ment by the states upon those fundamental rights which belong to citizenship, and which the state governments were created to se- cure. The privileges and immunities of citizens of the United Hall Cases Const.L. — ^28 434 POLITICAL AND PUBLIC RIGHTS States, as distinguished |rom the privileges and immunities of citizens of the states, are indeed protected by it; but those are privileges and immunities arising o^t of the nature and essential character of the national government, and granted or secured by the Constitution of the United States. United States v. Cruik- shank, 92 U. S. 542, 23 L. Ed. 588; Slaughter-House Cases, 16 Wall. 36, 21 h. Ed. 394." * * * In Walker v. Sauvinet, 92 U. S. 90, 23 L. Ed. 678, it was held that a trial by jury in suits at common law in the state courts was not a privilege or immunity belonging to a person as a citizen of the [ United States, and protected, therefore, by the fourteenth amend^ ment. * * * ' This case shows that the fourteenth amendment in forbidding a state to abridge the privileges or immunities of citizens of the United States does not include among them the right of trial by ' jury in a civil case, in a state court, although the right to such a trial in the federal counts is specially secured to all persons in the cases mentioned in the seventh amendment. Is any one of the rip-j itg gccu rpH tn the individual by the fifth nr by the sixth am pndmpn t. any more a privilege or immunity of a. citizen of the United States than are those secured bv the seventh? In none are they privileges or immunities granted and belonging to the individual as a citizen of the United States, but they are secured to all persons as against the federal government, entirely irrespective of such citizenship. As the individual does not enjoy them as a privilege of citizenship of the United States, therefore, when the fourteenth amendment prohibits the abridgement by the states of those privileges or immunities which he enjoys as such citizen, it is not correct or reasonable to say that it covers and extends to certain rights which he does not enjoy by reason of his citizenship, but simply because those rights exist in favor of all individuals as against federal governmental powers. The nature or_ character of the right of trial by jury is the same m a criminal prosecution as in a civil action, and in neither case does it spring from nor is it founded upon the citizenship of the individual as a citizen of the United States, and if not, then it cannot be said that, in either case it is a privilege or immunity w hich alone belo ngs to^ mm as such citizen . * ^ ' Those are not distinctly privileges or immunities of such citizenship, where everyone has the same as against the federal government, whether citizen or not. * * * In Re Kemmler, 136 U. S. 436, 448, 10 Sup. Ct. 930, 34 L. Ed. 519, 524, it was stated that it was not contended and could not be that the eighth amendment to the federal Constitution was intended to apply to the states. * * * j^ Presser v. Illinois, 116 U. S. 252, 6 Sup. Ct. 580, 29 L. Ed. 615, it was held that the second amende ment to the Constitution, in regard to the right of the people to bear arms, is a limitation only on the power of Congress and the POLITICAL AND PUBLIC RIGHTS 435 national government, and not of the states. * * * In O'Neil v. Vermont, 144 U. S. 323, 332, 12 Sup. Ct. 693, 36 L. Ed. 450, 456, it was stated that as a general question it has always been ruled that the eighth amendment to the Constitution of the United States does not apply to the states. In Thorington v. Montgomery, 147 U. S. 490, 13 Sup. Ct. 394, 37 L. Ed. 252, it was said that the fifth amendment to the Constitution operates exclusively in restraint of federal power, and has no application to the states. We have cited these casps fnr the, purpose of showing that the privileges and immunities of citizens of the United States do not necessarily include all the rights protected by the fi rs t eight amend- ments to the federal Constitution against the powers of the federal government. They were decided subsequently to the adoption of the fourteenth amendment, and if the particular clause of that amendment, now under consideration, had the effect claimed for it in this case, it is not too much to say that it would have been asserted and the principles applied in some of them. * * * Judgment affirmed. [Harlan, J., gave a dissenting opinion.] POPE V. WILLIAMS (1904) 193 U. S. 621, 632-634, 24 Sup. Ct. 573, 48 L. Ed. 817, Mr. Justice Peckham (affirming a decision of the Court of Appeals of Maryland) : " The simple matter to be herein determined is whether, with_ reference to the exercise of the privilege of voting in Maryland, tEe" legislature of that state had the legal right to provide that a per- son coming into the state to reside should make the declaration of intent a year before he should have the right to be registered as a voter of the state. "The yivilege to vote in aftv state is not given- h y the federal Constitution, or by any of its amendments.. It is not a privilege s pringing from citizenship of the United States . Minor v. Happer- sett, 21 W all. 16Z, 22 L,. Ed. b'//. It may not be refused on account of race, color, or previous condition of servitude, but i t does not follow from mere citizenship of the United States . In other words, tTie privilege to vote in a state is within the jurisdiction of the state itself, to be exercised as the state may direct, and upon such ' terms as to it may seem proper, provided, of course, no discrimina- tion is made between individuals, in violation of the federal Con- stitution. The state might provide that persons of foreign birth could vote without being naturalized, and, as stated by Mr. Chief Justice Waite in Minor v. Happersett, 21 Wall. 162, 22 L. Ed. 627, such persons were allowed to vote in several of the states upon having declared their intentions to become citizens of the United States. Some states permit women to vote; others refuse them 436 POLITICAL AND PUBLIC EIGHTS that privilege. A state, so far as the federal Constitution Is con- cerned, might pro vide by its own Constitution and laws' that none but native-born citizens should be permitted to vote, as the fed- eral Constitution does not confer the right of suffrage upon any- one, and the conditions under which that right is to be exercised are matters for the states :;i1nnp. to prescribe, subject to the condi- tions of the federal Constitution, already stated; although it may be observed that the right to vote for a member of congress is not derived exclusively from the state law. See Const. U. S. art. 1, § 2; Wiley v. Sinkler, 179 U. S. 58, 21 Sup. Ct. 17, 45 L. Ed. 84. But the elector must be one entitled to vote under the state stat- ute. Id., Id. See, also, Swafford v. Templeton, 185 U. S. 487, 491, 22 Sup. Ct. 783, 46 L. Ed. 1005, 1007. In this case no question arises as to the right to vote for electors of President and Vice President, and no decision is made thereon. The question whether the conditions prescribed by the state might be regarded by others as reasonable or unreasonable is not a federal one. We do not wish to be understood, however, as intimating that the condition in this statute is unreasonable or in any way improper. "We are unable to see any violation of the federal Constitution in the provision of the state statute for the declaration of the in- tent of a person coming into the state before he can claim the right to be registered as a voter. The statute, so far as it provides conditions precedent to the exercise of the elective franchise with- in the state, by persons coming therein to reside (and that is as far as it is necessary to consider it in this case), is neither an un- lawful discrimination against any one in the situation of the plaintiff in error nor does it deny to him the equal protection of the laws, nor is it repugnant to any fundamental or inalienable rights of citizens of the United States, nor a violation of any im- plied guaranties of the federal Constitution. The right of a state to legislate upon th«; anhjpft nf thp (»|prtnr e franchise as to it mav seem good, subject to the conditions alreadv stated, being, as we believe, unassailable, we think it plain that the statute in question violates no right protected by the federal Constitution. ""The reasons which may have impelled the state legislature to enact the statute in question were matters entirely for its consid- eration, and this court has no concern with them. "It is unnecessary in this case to assert that under no conceiv- able state of facts could a state statute in regard to voting be re- garded as an infringement upon or a discrimination against, the •individual rights of a citizen of the United States removing into the state, and excluded from voting therein by state legislation. The question might arise if an exclusion from the privilege of vot- ing were founded upon the particular state from which the person came, excluding from that privilege, for instance, a citizen of the POLITICAL AND PUBLIC KIGHT8 437 United States coming from Georgia and allowing it to a citizen of the United States coming from New York or any other state. In such case an argument might be urged that, under the four- teenth amendment of the federal Constitution, the citizen from Georgia was, by the state statute, deprived of the equal pi;otection of the laws. Other extreme cases might be suggested. We nei- ther assert nor deny that, in the case supposed, the claim would be well founded that a federal right of a citizen of the United States was violated by such legislation, for the question does not arise herein. * * * " Judgment afifirmed. 438 EX POST FACTO LAWS EX POST FACTO LAWS* THOMPSON V. MISSOURI. (Supreme Court of United States, 1898. 171 U. S. 380, 18 Sup. Ct 922, 43 L. Ed. 204.) [Error to Supreme Court of Missouri. Thompson was indicted for murder in 1894, the evidence against him being wholly circum- stantial. One issue of fact concerned the authorship of a prescrip- tion for strychnine and of a letter addressed to a church organist. Thompson denied that he had written either, and at the first trial certain letters -written by him to his wife were admitted in evi- dence for comparison with the writing in the other documents. Thompson was convicted, but a new trial was ordered on appeal; the Missouri Supreme Court holding that the letters to his wife were erroneously admitted in evidence . Subsequently, in 1895, the legislature passed an act permitting such a comparison to be made. At the second trial in 1896 the letters were again used in evidence- Thompson was again convicted, and the conviction aifirmed on appeal. 1 Mr. Justice Haei,an. * * * The contention of the accused is that, as the letters to his wife were "not, at the time of the commis- sion of the alleged ofifense, admissible in evidence for the purpose of comparing them with other writings charged to be in his hand- writing, the subsequent statute of Missouri changing this rule of evidence was ex post facto when applied to his case. it IS not to be denied that the position of the accused finds ap- parent support in the general language used in some opinions. Mr. Justice Chase, in his classification of ex post facto laws in Calder v. Bull, 3 Dall. 386, 390, 1 L. Ed. 648, includes "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 ofifense in order to convict the ofifender." In Kring v. Missouri, 107 U. S. 221, 228, 232, 235, 2 Sup. Ct. 443, 27 E. Ed. 506, the question arose as to the validity of a stat- ute of Missouri under which the accused was found guilty of the crime of murder in the first degree, and sentenced to be hanged. That case was tried several times, and was three times in the su- preme court of the state. At the trial immediately preceding the last one Kring was allowed to plead guilty of murder in the sec- ond degree. The plea was accepted, and he was sentenced to im- 1 For discussion of principles, see Black, Const. Law (3d Ed.) § 273. EX POST FACTO LAWS 439 p.risonment in the penitentiary for the term of 25 years. Having understood that upon this plea he was to be sentenced to impris- onment for only 10 years, he prosecuted an appeal, which resulted in a reversal of the judgment. At the last trial the court set aside the plea of guilty of murder in the second degree, — the accused having refused to withdraw it, — and, against his objection, ordered a plea of not guilty to be entered in his behalf. Under the latter plea he was tried, convicted, and sentenced to be hanged. By the law of Missouri at the time of the commission of Kring' s ofifense, his conviction and sentence under the plea of guilty of murder in the second degree was an absolute acquittal of the charge of mur- der m tne nrst a egree. But, that law having been changed before tTie hnal trial "occurred^ Kring contended that the last statute, if applied to his case, would be within the prohibition of ex post facto laws. And that view was sustained by this court, four of its members dissenting. * * * Considering the suggestion that the Missouri statute under which Kring was convicted only regulated procedure, Mr. Justice Miller, speaking for this court, said: "Can any substantia l right which the law gave the defendant at the time to which his guilt relates be take n away fro m him by ex post facto legislation, because, in^ the use ol a modern phrase, it is called a law of procedure? We think it cannot." In conclusion it was said: "Tested by these criteria, the provision of the Constitution of Missouri which de- nies to plaintiff in error the benefit which the previous law gave him of acquittal of the. charge of murder in the first degree, on conviction of murder in the second degree, is, as to his case, an ex post facto law within the meaning of the Constitution of the United States." * * * The right to such protection was deemed a substantial one, — indeed, it constituted a complete defense against the charge of murder in the first degree, — that could not be taken from the ac- cused by subsequent legislation. This is clear from the statement in Kring's Case that the question before the court was whether the statute of Missouri deprived "the defendant of any right of de- fense which the law gave him when the act was committed, so that, as to that ofifense, it is ex post facto." This general subject was considered in Hopt v. Utah, 110 U. S. 574, 588, 589, 4 Sup. Ct. 202, 28 L. Ed. 262. Hopt was indicted, tried, and convicted of murder in the territory of Utah, the punish- ment therefor being death. At the time of the commission of the ofifense it was the law of Utah that no person convicted of a felony 2 The law was changed before the first plea of guilty of murder in the sec- ond degree was made. See Kring v. Missouri, 107 U. S. 236-239, 2 Sup. Ct. 443, 27 L. Ed. 506. Even under the original law the defendant had no right to make this plea, except with the consent of the prosecution. Id. 440 EX POST FACTO LAWS could be a witness in a criminal case. After the date of the alj I leged offense, and prior to the trial of the case^ an act was passed I removin g- the dfsgnalifiral-inn as w itnesses of persons who had / been convicted of felonies; and the point was made that the stat- ' ute, in its application to Hopt's Case, was ex post facto. This court said: "The provision of the Constitution which pro- hibits the states from passing ex post facto laws was examined in Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. 443, 27 L,. Ed. 506. * * * That decision proceeded upon the ground that the state Constitution deprived the accused of a substantial right which the law gave him when the offense was committed, and therefore, in its application to that offense and its consequences, altered the situation of the party to his disadvantage. By the law as estab- lished when the offense was committed, Kring could not have been punished with death after his conviction of murder in the second degree, whereas by the abrogation of that law by the constitutional provision subsequently adopted he could thereafter be tried and convicted of murder in the first degree, and subjected to the pun- ishment of death. Thus the judgment of conviction of murder in the second degree was deprived of all force as evidence to estab- lish his absolute immunity thereafter from punishment for murder in the first degree. This was held to be the deprivation of a sub- stantial right which the accused had at the time the alleged offense was committed. But there are no such features in the case before us. Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage, for they do not attach criminality to any act pre- viously done, and which was innocent when done, nor aggravate any crime theretofore committed, nor provide a greater punish- ment therefor than was prescribed at the time of its commission, nor do they alter the degree or lessen the amount or measure of the proof which was made necessary to conviction when the crime was committed." The court added: "The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute. Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offense was committed, might, in respect of that offense, be ob- noxious to the constitutional inhibition upon ex post facto laws. But alterations which do not increase the punishment, nor change . the ingredients of the offense, or the ultimate facts necessary to. e stablish guilt, but, leaving untouched the nature of the crime, ancj the amount or degree of proof essential to conviction, only remove. BX POST FACTO LAWS 441 existing restrictions upon the competency of certain classes of per- sons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested ri^ht. and which the state, upon grounds ot public policy, may rcg -ulate at pleasure. Such regula- " tions of the mode in which the facts constituting guilt may be placed before the jury can be made applicable to prosecutions or trials thereafter had, without reference to the date of the commis- sion of the oflfense charged." * * * Applying the principles announced in former cases, without at- taching undue weight to general expressions in them that go be- yond the questions necessary to be determined, we adjudge that the statute of Missouri relating to the comparison of writings is not ex post facto when applied to prosecutions for crimes com- mitted prior to its passage. If persons excluded upon grounds of public policy at the time of the commission of an ofifense, from tes- tifying as witnesses for or against the accused, may, in virtue of a statute, become competent to testify, we cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed. The Missouri statute, when applied to this case, did not enlarge the punishment to which the accused was liable when his crime was committed, nor make any act in- volved in his oriiense criminal that was not criminal at the time he committed the murder of which he was found guilty . It did not change the quality or degree of his offense. Nor can the new rule introduced oy it oe characterized as unreasonable ; certainly not so unreasonable as materially to affect the substantial rights of one put on trial for crime. The statute did not require "less proof , in amount or degree, " than was require d at the time ot the commission ot the crime charged upon him. It left unimpaired the right of the jury to de- termine the sutticiency or effect of the evidence declared to be admissible, and did not disturb the fundamental rule that the state, as a condition of its right to take the life of an accused, must over- come the presumption of his innocence, and establish his guilt be- yond a reasonable doubt. Whether he wrote the prescription for strychnine, or the threatening letter to the church organist, was left for the jury; and the duty of the jury, in that particular, was the same after as before the passage of the statute. The statute did nothing more than remove an obstacle arising out of a rule of evidence that withdrew from the consideration of the jury tes- timony which, in the opinion of the legislature, tended to elucidate the ultimate, essential fact to be established, namely, the guilt of 442 EX POST FACTO LAWS the accused. Nor did it give the prosecution any right that was denied to the accused. It placed the state and the accused upon an equality, for the rule established by it gave to each side the right' to have disputed writings compared with writings proved to the satisfaction of the judge to be genuine. Each side was entitled to go to the jury upon the question of the genuineness of the writing upon which the prosecution relied to establish the guilt of the accused. It is well known that the adjudged cases have not been in harmony touching the rule relating to the comparison of hand- writings, and the object of the legislature, as we may assume, was to give the jury all the light that could be thrown upon an issue of that character. We cannot ad judge t hat the accused had any vested right in th e rnlp of evidenre which o btained prior to the" passage of the Missouri statute, nor that the rule established by that statute entrenched upon any of the essential rights belonginql to one put on trial for a public offense . Of course, we are not to be understood as holding that there may not be such a statutory alteration of the fundamental rules in criminal trials as might bring the statute in conflict with the ex post facto clause of the Constitution. If, for instance, the statute had taken from the jury the right to determine the sufficiency or efifect of the evidence which it made admissible, a different ques- tion would have been presented. We mean nnw nnly tn adjudge that the statute is to be regarded as one merely regulating pro- cedure, and may be applied to crimes committed prior to its passage without impairing the substantial guaranties of life and liberty that are secured to an accused by the supreme law of the land. Judgment afiErmed HAWKER V. NEW YORK. (Supreme Court of United States, 1898. 170 V. S. 189, 18 Sup. Ct. 573, 42 L. Ed. 1002.) [Error to the Court of Sessions of New York City. The de- fendant had been convicted of the c r ime of abortion in New~Vork' in 1878 and sentenced to ten vearslmprisonment. A New York statute of 1893. amended in 1895, made it a misdemeanor for anv^ person to practice medic ine after conviction of a felony. The de- fendant was convicted under this statute and the conviction af- firmed by the highest state court; final judgment being entered in the said Court of Sessions.] Mr. Justice BrBwer. The single question presented is as to the consti tutionality of this s tatute when applied to one who had beeq convicted ot a felony prior to its enactment . * * * EX POST FACTO LAWS 443 On the one hand, it is said that defendant was tried, convicted, and sentenced for a criminal offense. He suffered the punishment pronounced. T he legislature has no power to thereafter add to that punishment. The right to practice medirine is a valuable property right. To deprive a man of it is in the nature of punish- ment, andy after the defptidant Vias nncp fully atoned for his of- fense, a statute imposing this additional penalty is one simplv iur creasing^ the punishment for the offense, and is ex post facto. On the other, it is insisted that, within the acknowledged reach of the police power, a state may prescribe the qualifications of one engaged in any business so directly affecting the lives and health of the people as the practice of medicine. It may require both qualifications of learning and of good character, and, if it deems that one who has violated the criminal laws of the state is not possessed of sufficient good character, it can deny to such a one the right to practice medicine; and, further, it may make the record of a conviction conclusive evidence of the fact of the vio- lation of the criminal law, and of the absence of the requisite good character. In support of this latter argument, counsel for the state, besides referring to the legislation of many states prescrib- ing in a general way good character as one of the qualifications of a physician, has made a collection of special provisions as to the effect of a conviction of felony. In the footnote * will be found his collection. We are of opinion that this argument is the more applicable, . and must control the answer to this question. No precise limits ' have been placed upon the police power of a state, and yet it is clear that legislation which simpl y defines tVip qu alifications of one who attempts to practice medicine is a proper exercise of that power^ Care for the public health is something confessedly be-, longing to the domain of that power. The physician is one whose ! relations to life and health are of the most intimate character. It is fitting, not merely that he should possess a knowledge of diseas- ' es and their remedies, but also that he should be one who may safely be trusted to apply those remedies. Character is as im^ portant a qualification as knowledge, and if the legislature may properly require a definite course of instruction, or a certain ex- amination as to learning, it may with equal propriety prescribe what evidence of good c haracter shall be furnished . These prop- ositions have been otten athrmed. In Dent v. West Virginia, 129 U. S. 114, 122, 9 Sup. Ct. 231, 233, 32 L. Ed. 623, it was said in respect to the qualifications of a physician: "The power of the s This collection of statutes (Hawker v. New York, 170 U. S. 191-193, 18 Sup. Ot 574, 575, 42 L. Ed. 1004, 1005) shows that six or seven American states, Great Britain, and a number of s»lf-goremlnx British colonies give a similar effect to a conviction of felony. 444 EX POST FACTO LAWS State to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance and incapacity as well as of deception and fraud." * * * [Here fol- low quotations from various state decisions holding that a good moral character may be required as a condition of the right to practice medicine.] But if a state may require good character as a condition of the I practice of medicine, it may rightfully determine what shall be the evidences of that character. We do not mean to say that it has an arbitrary power in the matter, or that it can make a conclusive test of that which has no relation to character, but it may take whatever, according to the experience of mankind , reasonably tends to prove the fact and make it a test. County Seat of Linn Co., 15 Kan. 5CX)-528. Whatever is ordinarily connected with bad character, or indicative of it, may be prescribed by the legislature as conclusive evidence thereof. It is not the province of the courts to say that other tests would be more satisfactory, or that the naming of other qualifications would be more conducive to the desired result. These are questions for the legislature to deter- mine. "The nature and extent of the qualifications required must depend primarily upon the judgment of the state as to their neces- sity." Dent v. West Virginia, 129 U. S. 122, 9 Sup. Ct. 233, 32 L. Ed. 623. It is not open to doubt that the commission of crime — ^the viola- tjon of tne penai laws of a siaie — has some relation to the ques-" . • tion of character" it is not, as a rule, the good people who com- / mit crime. W hen the legislature declares that whoever has violat- "* ed the criminal laws of the state shall be deemed lacking in good moral character, it is not laying down an arbitrary or fanciful rule, one having no relation to the subject-matter, but is only appealing to a well-recognized fact of human experience ; and, if it may make a violation of 'criminal law a test of bad character, what more con- clusive evidence of the fact of such violation can there be than a conviction duly had in one of the courts of the state? The con- viction is. as between t jip statp anH tVip defendant, an adjudication of the fact. So, if the legislature enacts that one who has been convicted of crime shall no longer engage in the practice of med- icine, it is simply applying the doctrine of res judicata, and invok- ing the conclusive adjudication of the fact that the man has vio- lated the criminal law, and is presumptively, therefore, a man of such bad character as to render it unsafe to trust the lives and health of citizens to his care. That the form in which this legislation is cast suggests the idea of the imposition of an additional punishment for past ofifenses is EX POST FACTO LAWS 445 not conclusive. We must look at the substance, and not the form ; and the statute should be regarded as though it in terms declared that one who had violated the criminal laws of the state should be deemed of such bad character as to be unfit to practice med- icine, and that the record of a trial and conviction should be con- clusive evidence of such violation. All that is embraced in these propositions is condensed into the single clause of the statute, and it means that, and nothing more. The state is not seeking to further punish a criminal, but only to protect its citizens from physicians of bad character. The vital matter is not the conviction, hut the violation of law. The former is merely the prescribed evidence of the latter. Suppose the statute had contained only a clause de- claring that no one should be permitted to act as a physician who had violated the criminal laws of the state, leaving the question of violation to be determined according to the ordinary rules of evidence; would it not seem strange to hold that that which con- clusively established the fact effectually relieved from the conse- quences of such violation ? It is no answer to say that this test of character is nnt in all cases absnliitel v certain, and that so metimes it works harshly. Joubtless, one who has violated the criminal law may thereafter i reform, and become in fact possessed of a good moral character. But the legislature has power in cases of this kind to make a rule ' of universal application, and no inquiry is permissible back of the^ rule to ascertain whether the fact of which the rule is made the i absolute test does or does not exist. Illustrations of this are abundant. At common law, one convicted of crime was incompe- tent as a witness ; and this rule was in no manner affected by the lapse of time since the commission of the offense, and could not be set aside by proof of a complete reformation. So, in many states a convict is debarred the privileges of an elector, and an act so debarring was held applicable to one convicted before its pas- sage. Washington v. State, 75 Ala. 582, 51 Am. Rep. 479. In Foster v. Commissioners, 102 Cal. 483, 492, 37 Pac. 763, 41 Am. St. Rep. 194, the question was as to the validity of an ordinance revoking a license to sell liquor on the ground of misconduct prior , to the issue of the license, and the ordinance was sustained. In, ■commenting upon the terms of the ordinance the court said: ^'Though not an ex post facto law, it is retrospective in so far as it determines from the past conduct of the party his fitness for the proposed business. Felons are also excluded from obtaining such a license, not as an additional punishment, but because the convic- tion of a felony is evidence of the unfitness of such persons as a class ; nor can we perceive why such evidence should be more con- clusive of unfitness were the act done after the passage of the ordi- nance than if done before." 446 EX POST FACTO LAWS In a certain sense such a rule is arbitrary, but it is within the power of a legislature to perscribe a rule of general application based upon a state of things which is ordinarily evidence of the ultimate fact sought to be established. "It was obviously the province of the state legislature to provide the nature and extent of the legal presumption to be deduced from a given state of facts, and the creation by law of such presumptions is, after all, but an illustration of the power to classify." Jones v. Brim, 165 U. S. 180, 183, 17 Sup. Ct. 282, 41 L. Ed. 677. * * * Judgment affirmed. [Hari,an, J., gave a dissenting opinion, in which concurred PEck- HAM and McKbnna, JJ.] LAWS IMPAIRING THE OBLIGATIONS OF CONTEACTS 447 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS NEW ORLEANS WATERWORKS CO. v. LOUISIANA SU- GAR REFINING CO. (Supreme Court of United States, 1888. 125 U. S. 18, 8 Sup. Ct. 741, 31 L. Ed. 607.) [Error to the Supreme Court of Louisiana, which had affirmed a judgment of the civil district court of New Orleans in favor of the Louisiana Sugar Company, denying an injunctio ii_ against lay- ing water pipes asked by the plaintiff. The facts appear in the opinion.] Mr. Justice Gray. The plaintiff, in its original petition, relied on a charter from the legislature of Louisiana, which granted to it the exclusive privilege of supplying the citv of New Orleans and its inhabitants with water from the Mississippi river, but provided that the city council should not be thereby prevented .from gran t- ing to any person "contiguous to the river" the privilege of laying_ pipes to the river for his own use. The only matter complained of by the plaintiff, as impairing the obligation of the contract contained in its charter, was an ordinance o f the city council, granting to the Louisiana Sugar Refining Company permis sion to Fay pipes from the river to its factory, which, the p laintiff con- tended, was not contiguous to the river . The Louisiana Sugar Re- fining Company, in its answer, alleged that its factory was contigu- ous to the river; that it had the right as a riparian proprietor to draw water from the river for its own use; that its pipes were being laid for its own use only; that the plaintiff had no exclu- sive privilege that would impair such use of the water by the de- fendant company; and that the rights and privileges claimed by the plaintiff would constitute a monopoly, and be therefore null and void. The evif j^nr" ghr^wpH f|^ at the pipes of the defendant com- pa ny were being laid exclusively for the use of its factory, and that n o private ownership intervened between it and the river, but only a public street, and a broad quay or levee, owned by the city and open to the public, except that some large sugar sheds, occu- pi ed by lessees of the city^ stood upon it. and that the tracks of a^ailroad were laid across it.. * * * The only grounds on which the plaintiff in error attacks the judgment of the state court are that the court erred in its construc- tion of the contract between the state and the plaintiff, contained 1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 279-294. 448 .LAWS IMPAIRING THE OBLIGATIONS OF OONTEACTS in the plaintiff's charter; and in not adjudging that the ordinance of the city counsel, granting to the defendant company permission to lay pipes from its factory to the river, was void, because it impaired the obligation of that contract. * * * This being a writ of error to the highest court of a state, a fed- eral question must have been decided by that court against the plaintiff in error; else this court has no jurisdiction to review the judgment. * * * In order to come within the provision of the Constitution of the United States which declares that no state shall pass any law im- pairing the obligation of contracts, not only must the obligation of a contrac t have been impaired, but it must have been impaired by a law ot the state. The prohibition is aimed at the legislative power of the state^ and not at the decisions o± its courts, or the acts of ad- ministrative or executive boards or officers, or the doings of corpo- rations or individuals. This court, therefore, has no jurisdiction to_ review a judgment of the highest court of a. state, on the ground that the obligation of a contract has been impaired, unless some l egislative act of the state has been upheld by the judgment sought to be reviewed. The general rule, as applied to this class of cases, has been clearly stated in two opinions of this court, delivered by Mr. Justice Miller: "I t must be the Constitution or some law of_ the state whi ch impairs tHe obligation of the contract, or which is otherwise in conhict with the Constitution of the United States; and the decision of the state court must sustain the law or Consti-r tution ot the state, in the matter' in which the conflict is supposed^ to exist; or the case for this court dnes not arise." Railroad Co. v. Rock, 4 Wall. 177, 181, 18 L,. Ed. 381. "We are not authorized by the judiciary act to review the judgments of the state courts, be- cause their judgments refuse to give effect to valid contracts, or be- cause those judgments, in their effect, impair the obligation of con- tracts. If we did, every case decided in a state court could be brought here, where the party setting up a contract alleged that the court had taken a different view of its obligation to that which he held." Knox v. Bank, 12 Wall. 379, 383, 20 L. Ed. 287. As later decisions have shown, it is not strictly and literally true that a law of a state, in order to come within the constitutional prohibition, must be either in the form of a statute enacted by the legislature in the ordinary course of legislation, or in the form of a Constitution established by the people of the state as their fundamental law. In Williams v. Bruffy, 96 U. S. 176, 183, 24 h. Ed, 716, it, was said by Mr. Justice Field, delivering judgment: "Any pnqrtmpnt, frntn whatever sourcc originating, to which a state giv es thp fnrce nf law, is a statute of the State, within the meaning of the clause cited relating to the jurisdiction of this/ court." (Rev. St. S 709 :') and it was therefore held that a. statute nf LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 449 the so-called Confederate States, if enforced by one of the states as its law, was within the prohibition of the Constitution. So a i by-law or ordinance of a municipal corpor ation may be such an ^ exercise of legislative powe r delega ted by the le gislature to the corporation as a political subdivis i on of th e state, having all the force of law within the limits of the municipality, that it may properly be considered as a law, w ithin the m eaning of this article ' oj the Constitution of the United Stated For instance, the power c of determining what persons and property shall be taxed belongs^ exclusively to the legislative branch of the government, and, whether exercised by the legislature itself, or delegated by it to a municipal corporation, is strictly a legislative power. U. S. v. ^ New Orleans, 98 U. S. 381, 392, 25 L. Ed. 225 ; Meriwether v. Gar- , rett, 102 U. S. 472, 26 L. Ed. 197. * * * But t he ordinance now in question involved no exer cise of legis- lative power. The legislature, in the charter granted to the plain- tiff, provided that nothing therein should "be so construed as to prevent the city council from granting to any person or persons, contiguous to the river, the privilege of laying pipes to the river, exclusively for his or their own use." The legislature itself thus ' defined the class of persons to whom, and the object for which, the ^ permission might be granted. All that was left to the city cpuncij, , was the duty of determining what persons came within the defini^ tion, and how and where they might be p ermitted to lay pipes, for - the purpose of securing their several right s to dr aw water from the - river, without unreasonably interfering with the convenient use by the public of the lands and highways of the city. The rule was es- tablished by the legislature, and its execution only committed to the municipal authorities. The power conferred upon the city ^ council was not legislative, but administrative^ and might equally well have been vested by law in the mayor alone, or in any other''*' officer of the city. Railroad Co. v. EUerman, 105 U. S. 166, 172, j, 26 L. Ed. 1015 ; Day v. Green, 4 Cush. (Mass.) 433, 438. The per- mission granted by the city counci l to the defendan t company.. though put in th e form of an ordinance, was in effect but a license, and not a by-law of the city, still less a law of the state. If that license was within the authority vested in the city council by the law of Louisiana, it was valid; if it transcended that au- thority, it was illegal and void. But the question whether it was lawful or unlawful depended wholly on the law of the state, and not at all on any provision of the Constitution or laws of the United States. * * * [After discussing various cases :] These cases are quite in har- mony with the line of cases, beginning before these were decided, in which, on a writ of error upon a judgment of the highest court Hall Cases Oonst.L. — 29 450 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS of a state, giving effect to a statute of the state, drawn in ques- tion as affecting the obhgation of a previous contract, this court, exercising its paramount authority of determining whether the statute upheld by the state court did impair the obhgation of the previous contract, is not concluded by the opinion of the state court as to the validity or the construction of that contract, even if con- tained in a statute of the state, but determines for itself what that contract was. Leading cases of that class are Bridge Propr's V. Hoboken Co., 1 Wall. 116, 17 L. Ed. 571, in which the state court affirmed the validity of a statute authorizing a railway via- duct to be built across a river, which was drawn in question as impairing the obligation of a contract, previously made by the state with the proprietors'of a bridge, that no other bridge should be built across the river; and cases in which the state court af- firmed the validity of a statute, imposing taxes upon a corporation, and drawn in question as impairing the obligation of a contract in a previous statute exempting it from such taxation. Bank v. Knoop, 16 How. 369, 14 L. Ed. 977; Trust Co. v. Debolt, Id. 416, 14 L. Ed. 997; Bank v. Debolt, 18 How. 380, 15 L. Ed. 458; Bank V. Skelly, 1 Black, 436, 17 L. Ed. 173 ; New Jersey v. Yard, 95 U. S. 104, 24 L. Ed. 352 ; Railroad v. Gaines, 97 U. S. 697, 709, 24 L. Ed. 1091; University v. People, 99 U. S. 309, 25 L. Ed. 387; Railroad v. Palmes, 109 U. S. 244, 3 Sup. Ct. 193, 27 L. Ed. 922; Gas-Light Co. v. Shelby Co., 109 U. S. 398, 3 Sup. Ct. 205 ; Rail- road Co. V. Dennis, 116 U. S. 665, 6 Sup. Ct. 625, 29 L. Ed. 770. In each of those cases, the state court upheld a right claimed under the later statute, and could not have made the decision that it did without upholding that right; and thus gave effect to the law of the state drawn in question as impairing the obligation of a con- tract. The distinction between the two classes of cases, — those in which the state court has, and those in which it has not, given effect to the statute drawn in question as impairing the obligation of a contract, — as affecting the consideration by this court, on writ of error, of the true construction and effect of the previous contract, is clearly brought out in Railroad v. Railroad, 14 Wall. 23, 20 L. Ed. 850. That was a writ of error to the supreme judi- cial court of Maine, in which a foreclosure, under a statute of 1857, of a railroad mortgage made in 1852, was contested upon the ground that it impaired the obligation of the contract, and the parties agreed that the opinion of that court should be considered as part of the record. Mr. Justice Miller, in delivering judgment, after stating that it did appear that the question whether the stat- ute of 1857 impaired the obligation of the mortgage contract "was discussed in the opinion of the court, and that the court was of the opinion that the statute did not impair the obligation of the contract," said: "If this were all of the case, we should undoubt- LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 451 edly be bound in this court to inquire whether the act of 1857 did, as construed by that court, impair the obligation of the contract. Bridge Propr's v. Hoboken Co., 1 Wall. 116, 17 L. Ed. 571. But a fiill examination of the opinion of the court shows that its judg- ment was based upon the ground that the foreclosure was valid, without reference to the statute of 1857, because the method pur- sued was in strict conformity to the mode of foreclosure author- ized, when the contract was made by the laws then in existence. Now, if the state court was right in their view of the law as it stood when the contract was made, it is obvious that the mere fact that a new law was made does not impair the obligation of the contract. And it is also clear that we cannot inquire whether the supreme judicial court of Maine was right in that opinion. Here is, therefore, a clear case of a sufficient ground on which the va- lidity of the decree of the state court could rest, even if it had been in error as to the effect of the act of 1857 in impairing the obliga- tion of the contract. And when there is such distinct and sufficient ground for the support of the judgment of the state court, we cannot take jurisdiction, because we could not reverse the case, though the federal question was decided erroneously in the court below against the plaintiff in error. Rector v. Ashley, 6 Wall. 142, 18 L. Ed. 733 ; Klinger v. Missouri, 13 Wall. 257, 20 L,. Ed. 635 ; Steines v. Franklin County, 14 Wall. 15, 20 L. Ed. 846. The writ of error must therefore be dismissed for want of jurisdiction." Id. 25, 26. The result of the authorities, applying to cases of contracts the settled rules that in order to give this court jurisdiction of a writ of error to a state court, a federal question must have been, ex- pressly or in effect, decided by that court, and, therefore, that when the record shows that a federal question and another ques- tion were presented to that court and its decision turned on the I other question only, this court has no jurisdiction, may be summed up as follows : When the state court decides against a right claimr ed under a contract, and there was no law subsequent to the con- tract, this court clearly has no jurisdiction. When the existence and the construction of a contract are undisputed, and the state court upholds a subsequent law, on the ground that it did not impair the obligation of the admitted contract, it is equally clear that this court has jurisdiction . When the state court holds that there was a contract conferring certain rights, and that a subse- quent law did not impair those rights, this court has jurisdiction to consider the true construction of the supposed contract; and, if it is of opinion that it did not confer the rights affirmed by the state court, and therefore its obligation was not impaired by the subsequent law, may on that ground affirm the judgment. So, when the state court upholds the subsequent law, on the ground 452 LAWS IMPAIRING THE OBLIGATIONS OF 0ONTRACT8 that the contract did not confer the right claimed, this court may- inquire whether the supposed contract did give the right, because, if it did, the subsequent law cannot be upheld. But when the state court gives no effect to the subsequent law, but decides, on grounds independent of that law, that the right claimed was not conferred by the contract, the case stands just as if the subsequent •law had not been passed, and this court has no jurisdiction. In the present case, the supreme court of Louisiana did not, and the plaintiff in error does not pretend that it did, give any effect to the provision of the Constitution of 1879 abolishing monopolies. Its judgment was based wholly upon the general law of the state, and upon the construction and effect of the charter from the legis- lature to the plaintiff company, and of the license from the city council to the defendant company, and in, no degree upon the Con- stitution or any law of the state subsequent to the plaintiff's charter. * * * Case dismissed for want of jurisdiction. OGDEN v. SAUNDERS. (Supreme Court of United States, 1827. 12 Wheat. 213, 6 L. Ed. 606.) [Error to the United States District Court for Louisiana. Og- den, then _a citizen of New York, accepted in that state certain bills of exchange drawn upon him in 1806 in Kentu cky, of which Saunders became the owner. Ogden later became a citizen of Louisiana, and was there sued in assumpsit by Saunders upon the bills, in the above-named court. One of Qgden's pleas was a dis- charge in bankruptcy in New York, under an act passed there in 1801 On a special verdict finding those facts, the plaintiff re- ceived judgment, and Odgen took this writ of error. Saunders was a citizen of Kentucky. Several somewhat similar cases were argued at the same time.] Mr. Justice Washington. * * * What is it. then, which constitutes the obligation of a contract ? The answer is given by the Chief Justice, in the case of Sturges v. Crowninshield,^ to which I readily assent now, as I did then ; it is the law which binds the parties to perform their agreement . The law, then, which has this binding obligation, must govern and control the contract in every shape in which it is intended to bear upon it, whether it affect its validity, construction, or discharge. But the question, which law is referred to in the above definir tion. still remains to be solved. It c annot, for a moment, be con - 2 4 Wheat. 117, 4 L. Ed. 529 (1819), holding invalid all discharges of debtors by insolvency or bankruptcy laws passed subsequently to the making of the contracts affected thereby. LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 453 ceded that the mere moral law is intended, since the ohlig ; -ation which that imposes is altogether of the imperfect kind which the parties to it are free to obey or not, as they please. It cannot be supposed that it was with this law the grave authors of this instru- ment were dealing. The universal law of all civilized nations, which declares that men shall perform that to which they have agreed, has been sup- posed by the counsel who have argued this cause for the defend- ant in error, to be the law which is alluded to; and I have no objection to acknowledging its obligation, -whilst I must deny that ' it is that which exclusively governs the contract. It is upon this law that the obligation which nations acknowledge to perform their compacts with each other is founded, and I, therefore, feel no objection to answer the question asked by the same counsel — What law it is which constitutes the obligation of the compact^ between Virginia and Kentucky — by admitting, that it is thiaJ" common law of nations which requires them to perform it. I ad- mit further that it is this law which creates the obligation of a contract made upon a desert spot, where no municipal law exists, ' and (which was another case put by the same counsel) which con-y tract, by the tacit assent of all nations, their tribunals are au-, thorized to enforce. But can it be seriously insisted that this, any more than the moral law upon which it is founded, was exclusively in the con- templation of those who framed this Constitution? What is the language of this universal law? It is simply that all men are bound to perform their contracts. The injunction is as absolute as the contracts to which it applies. It admits of no qualification and no restraint, either as to its validity, construction, or discharge, further than ijiay be necessary to develop the intention of the par- ties to the contract. And if it be true that this is exclusively the law, to which the Constitution refers us, it is very apparent that the sphere of state legislation upon subjects connected with the con- tracts of individuals, would be abridged beyond what it can for a moment be believed the sovereign states of this Union would have consented to; for it will be found, upon examination, that ■ there are few laws which concern the general police of a state, or . the government ot its citizens, in their intercourse with each other or with strangers, which may not in some way or other affect the con tracts which they have entered into, or may thereafter form. 1:' or what are laws ot evidence, or which concern remedies — frauds and perjuries — laws of registration, and those which af- fect landlord and tenant, sales at auction, acts of limitation, and those which limit the fees of professional men, and the charges of^^ tavern-keepers, and a multitude of others which crowd the codes of every state, but laws which may affect the validity, construe- ' 454 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS tion, or duration, or discharge' of contracts ? Whilst I admit, then, that this common law of nations, which has been mentioned, may form in part the obligation of a contract, I must unhesitat- ingly insist that this law is to be taken in strict subordination to the municipal laws of the land where the contract is made, or is to be executed. The former can be satisfied by nothing short of performance ; the latter may affect and control the validity, con- struction, evidence, remedy, performance, and discharge of the cqntract. The former is the common law of all civilized nations, and of each of them; the latter is the peculiar law of each, and is paramount to the former whenever they come in collision with each other. It is, then, the municipal law of the state, whether that be writ^^ ten or unwritten, which is emphatically the law of the contract made within the state, and must govern it throughout, wherever Its performance is sought to be enforce d. It forms, in my humble opinion, a part of the contract, and • travels with it wherever the parties to it may be found. It is so regarded by all the civilized nations of the world, and is enforced by the .tribunals of those nations according to its own forms, unless the parties to it have otherwise agreed, as where the contract is to be executed in, or refers to the laws of, some other country than that in which it is formed, or where it is of an immoral char- acter, or contravenes the policy of the nation to whose tribunals the appeal is made; in which latter cases, the remedy which the comity of nations affords for enforcing the obligation of contracts wherever formed, is denied. Free from these objections, this law, which accompanies the contract as forming a part of it, is regarded and enforced everywhere, whether it affect the validity, construc- tion, or discharge of the contract. It is upon this principle of universal law, that the discharge of the contract, or of one of the parties to it, by the bankrupt laws of the country where it was made, operates as a discharge everywhere. I f^ then, it be true that the law of the country where the con- tract is made or to be executed, forms a part of that contract and of its o blig ation, it would seem to be somewhat of a solecism to sav-that it does, at the same time, impair that obligation. But it is contended that if the municipal law of the state where the contract is so made form a part of it, so does that clause of the Constitution which prohibits the states from passing laws to impair the obligation of contracts ; and, consequently, that the law is rendered inoperative by force of its controlling associate. All this I admit, provided it be first proved that the law so incorpo- rated with and forming a part of the contract, does, in effect, im- pair its obligation ; and before this can be proved, it must be af- firmed and satisfactorily made out, that if, by the terms of the LAWS IMPAIRING THE OBLIGATIONS OF OONTEACTS 455 contract, it is agreed that, on the happening of a certain event, as, upon the future insolvency of one of the parties, and his sur- render of all his property for the benefit of his creditors, the con- tract shall be considered as performed and at an end, this stipula- tion would impair the obligation of the contract. If this proposi- tion can be successfully affirmed, I can only say, that the sound- ness of it is beyond the reach of my mind to understand. Again, it is insisted that if the law of the contract forms a part of it. the law itself cannot be repealed without impairing the ob - ligation of the contract. This proposition I must be permitted to a deny, it may be repealed at any time, at the will of the legislature, ^ and then it ceases to form any part of those contracts which may - afterwards be entered into. The repeal is no more void than a , new law w""^^ hp wViiVh npprates upon contracts to affect their validitv. construction, or duration. Both are valid ("if the view which I take of this case be correct), as they may affect contracts ^ afterwards formed : but neither are so, if they bear upon existing t contracts : and, in the former case, in which the repeal contains no enactment, the Constitution would forbid the application of the repealing law to past contracts, and to those only . To illustrate this argument, let us take four laws, which, either by new enactments, or by the repeal of former laws, may affect contracts as to their validity, construction, evidence, or remedy. Laws against usury are of the first description. A law which con- verts a penalty, stipulated for by the parties, as the only atone- ment for a breach of the contract, into a mere agreement for a just compensation, to be measured by the legal rate of interest, is of the second. The statute of frauds, and the statute of limi- tations, may be cited as examples of the last two. The validity of these laws can never be questioned by those who accompany me in the view which I take of the question under con- sideration, unless they operate, by their express provisions, upon contracts previously entered into; and even then they are void only so far as they do so operate; because, in that case, and in that case only, do they impair the obligation of those contracts, j But if they equally impair the obligation of contracts subsequently^ made, which they must do, if this be the operation of a bankrupt law upon such contracts, it would seem to follow that all such laws, whether in the form of new enactments, or of repe alin^y laws^ producing the same legal consequences, are made void by the Con- stitution; and yet the counsel for the defendants in error have, not ventured to maintain so alarming a proposition . "< If it be conceded that those laws are not repugnant to the Consti- ■ tution, so far as they apply to subsequent contracts, I am yet to be .. instructed how to distinguish between those laws, and the one now under consideration. How has this been attempted by the learned 456 LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS counsel who have argued this cause upon the ground of such a distinction ? They have insisted that the effect of the law first supposed, is to annihilate the contract in its birth, or rather to prevent it from having a legal existence, and consequently, that there is no obliga- tion to be impaired. But this is clearly not so, since it may legiti- mately avoid all contracts afterwards entered into, which, reserve to the lender a higher rate of interest than this law permits. The validity of the second law is admitted, and yet this can only be in its application to subsequent contracts ; for it has not, and I think it cannot, for a moment, be maintained, that a law which, in express terms, varies the construction of an existing con- tract, or which, repealing a former law, is made to produce the same effect, does not impair the obligation of that contract. The statute of frauds, and the statute of limitations, which have been put as examples of the third and fourth classes of laws, are also admitted to be valid, because they merely concern the modes of proceeding in the trial of causes. The former, supplying a rule of evidence, and the latter, forming a part of the remedy given by the legislature to enforce the obligation, and likewise providing a rule of evidence. All this I admit. But how does it happen that these laws, like those which affect the validity and construction of contracts, are valid as to subsequent, and yet void as to prior and subsisting con- tracts? For we are informed by the learned judge who delivered the opinion of this court, in the case of Sturges v. Crowninshield, 4 Wheat. 122, 4 L,. Ed. 529, that, "if, in a state where six years may be pleaded in bar to an action of assumpsit, a law should pass declaring that contracts already in existence, not barred by the statute, should be construed within it, there could be little doubt of its unconstitutionality." It is thus most apparent that, whichever way we turn, whether to laws affectmg the validitv. construction, or discharges of con- tra cts, or the evidence or remedy to be employed in enforcing them. 'w e are met by this overruling and admitted distinction, between, feose which operate retrospectively, and those which operate prospectively. In all of them the law is pronounced to be void in the first class of cases, and not so in the second. Let us stop, then, to make a more critical examination of the act of limitations, which although it concerns the remedy, or, if it must be conceded, the evidence, is yet void or otherwise, as it is. made to apply retroactively, or prospectively, and see if it can, upon any intelligible principle, be distinguished from a bankrupt law, when applied in the same manner. What is the effect of the former? The answer is, to discharge the debtor and all his future acquisitions from his contract; because he is permitted to plead LAWS IMPAIKING THE OBLIGATIONS OF CONTRACTS 457 it in bar of any remedy which can be instituted against him, and consequently in bar or destruction of the obligation which his con- tract imposed upon him. What is the effect of a discharge under a bankrupt law? I can answer this question in no other terms than those which are given to the former question. If there be a difference, it is one which, in the eye of justice, at least, is more favorable to the validity of the latter than of the former; for in the one, the debtor surrenders everything which he possesses to- wards the discharge of his obligation, and in the other, he surren- ders nothing, and sullenly shelters himself behind a legal objec- tion with which the law has provided him, for the purpose of pro- tecting his person, and his present as well as his future acquisi- tions, against the performance of his contract. * * * [Here follows mention of further similarities in the legal effects of the two laws, in that the bar of each may be waived by the debtor's ■ subsequent promise, without a new consideration, and that each must be pleaded by the debtor to bar the creditor's remedy upon the original obligation.] [Johnson, Thompson, and Trimble, JJ., gave concurring opin- j ions ; and Marshall, C. J., gave a dissenting opinion ^ for himself and DuvALL and Story, JJ., in the course of which he said: "If j one law enters into all subsequent contracts, so does every other law which relates to the subject. A legislative act, then, declaring that all contracts should be subject to legislative control and should be discharged as the legislature might prescribe, wo uld be" come a component part of every contract and be one of its condi- tions." 12 Wheat. 339, 6 L. Ed. 606. The remainder oFtHe case upon another point is omitted.] FLETCHER v. PECK. (Supreme Court of United States, 1810. 6 Cranch, 87, 3 L. Ed. 162.) [Error to the United States Circuit Court for Massachusetts. Fletcher brought an action of covenant in that court against Peck, and, upon the facts and pleadings stated in the opinion below, the court gave judgment for Peck upon the third count, overruling a demurrer to Peck's plea thereto.] Mr. Chief Justice Marshall. * ♦ * This suit was instituted on several rnvenants rnntained in a deed ma d e by John Peck, the defendant in error, conveving to Robert Fletcher, the plaintiff in error, certain lands which were part of a large purchase made by Tames Gunn and others, in the year 1795, from the state of Georgia, 3 This is Chief Justice Marshall's only dissenting opinion upon a constitu- tional question. In the 34 years he was upon the bench he wrote 519 out of the 1,106 opinions delivered in the court. He dissented altogether but 8 times. Carson, Sup. Ct. of U. S., 206, note. 458 LAWS IMPAIRING THE OBLIGATIONS OF OONl^EACTS the contract for which was made in the fnr m nf a hill passe d by the legislature ot that state. * * * The fourth covenant in the deed is, that the title to the premises has been in no way constitutionally or legally impaired by virtue of any subsequent act of any subsequent legislature of the state of Georgia. The third count recites th e undue means practised on certain members of the legislature, as stated in the second count, and then alleges that, m consequence of these practices and of other causes, a subsequent legislature passed an act annulling and rescinding the law under which the conveyance to the original grantees was made , declaring that conveyance void, and asserting the title of the state to the lands it contained. The count proceeds to recite at large this rescinding act, and concludes with averring- that, by rea- son of this act, the title of the said Peck in the premises was con- stitutionally and legally impaired, and rendered null and void. After protestmg as before that no such "promises were made as stated in this count, the defendant again pleads that himself and the first purchaser under the original grantees, and all intermediate holders of the p rop erty, were purchasers without notice. To this plea there is a demurrer and joinder. * * * In this case the legislature may have had ample proof that the original grant was obtained by practices which can never be too much reprobated, and which would have justified its abrogation so far as respected those to whom crime was imputable. But the grant, when issued, conveyed an estate in fee-simple to the grantee, clothed with all the solemnities which law can bestow. This es- tate was transferable; and those who purchased parts of it were not stained by that guilt which infected the original transaction. Their case is not distinguishable from the ordinary case of pur- chasers of a legal estate without knowledge of any secret fraud which might have led to the emanation of the original grant. Ac- ■ cording to the well-known course of equity, their rights could not be affected by such fraud. Their situation was the same, their ti- tle was the same, with that of every other member of the com- munity who holds land by regular conveyances from the original patentee. Is the power of the legislature competent to the annihilation of such title, and to a resumption of the property thus held? The principle asserted is, that one legislature is competent to repeal any act which a former legislature was competent to pass; and that one legislature cannot abridge the powers of a succeeding leg- islature. The correctn ess nf this principle, so far as respects general leg- islation, can never be controverted. . But if an act be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power. Conveyances have been LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 459 made, those conveyances have vested legal estates, and, if those estates may be seized by the sovereis;-n authority, still, that they r^no-i'rially -irccto,^ is a fact, and cannot cease to be a fact. When, then, a law is in its nature a contract, when absolute rights have vested under that contract, a^ repeal of the law cannot divest those rights ; and the act of annulling them, if legitimate, is rendered so " by a power applicable to the case of every individual in the com- ^ munity . * * * / The Constitution of the United States declares that no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. Does the case now under consideration come within this prohibitory section of the Constitution ? Ill considering this very interesting question, we immediately J ask ourselves what is a contract? Is a grant a contract? A con- ( tract is a compact between two or more parties, and is either ex- ecutory or executed. An executory contract is one in which a par- ty binds himself to do, or not to do, a particular thing; such was the law under which the conveyance was made by the governor. A, contract executed is one in which the object of contract is per- formed ; and this, says Blackstone, differs in nothing from a grant. The contract between Georg-ia and the purchasers was executed by the grant. A contract executed, as well as one which is executory, contains obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right . A party is, there- fore, always estopped by his own grant. Since, then, in fact, a grant is a contract executed, the obligation of which still continues, and since the Constitution uses the gen- !■ eral term contract, without distinguishing between those which , are executory and those which are executed, it must be construed ( to comprehend the latter as well as the former. A law annulling^ conveyances between individuals, and declaring that the grantors should stand seised of their former estates, notwithstanding those grants, would be as repugnant to the Constitution as a law dis- 1, charging the vendors of property from the obligation of executing^ their contracts -by conveyances. I^t would be strange if a contract to convey was secured by the Constitution, while an absolute con- , veyance remained unprotected. If, under a fair construction of the Constitution, grants are com- prehended under the term contracts, is a grant from the state ex- cluded from the operation of the provision? Is the clause to be considered as inhibiting the state from impairing the obligation of '• contracts between two individuals, but as excluding from that in-t- hibition contracts made with itself? j The words themselves contain no such distinctiorr. They are^ general, and are applicable to contracts of every description. If contracts made with the state are to be exempted from their op- 460 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS eration, the exception must arise from the character of the con- tracting party, not from the words which are employed. Whatever respect might have been felt for the state sovereignties, it is riot to be disguised that the framers of the Constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment ; and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sud- den and strong passions to which men are exposed. The restric- tions on the legislative power of the states are obviously founded in this sentiment; and the Constitution of the -United States con- tains what may be deemed a bill of rights for the people of each state. No state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. A bill of attainder may affect the life of an individual, or may confiscate his property, or 'may do both. In this form the power of the legislature over the lives and fortunes of individuals is expressly restrained. What motive, then, for implying, in words which import a general pro- hibition to impair the obligation of contracts, an exception in favor of the right to impair the obligation of those contracts into which the state may enter? The state legislatures can pass no ex post facto law. An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. Such a law may inflict penalties on the person, or may inflict pecuniary penal- ties which swell the public treasury. The legislature is then pro- hibited from passing a law by which a man's estate, or any part of it, shall be seized for a crime which was not declared, by some previous law, to render him liable to that punishment. Why, then, should violenc e be done to the natural meaning of words tor the , purpose of leavmg to the legislature the power of .seizing, for pub- lic use, ttie estate of an individual in the form of a law annulling the title by which he holds that estate? The court can perceive no , suiifici'ent grounds tor making that distinction. This rescinding act would have the effect of an ex post facto law. It forfeits the estate of Fletcher for a crime not committed by himself, but by those from whom he purchased. This cannot be effected in the form of an ex post facto law, or bill of attainder; why, then, is it allowable in the form of a law annulling the original grant? The argument in favor of presuming an intention to except a case, not excepted by the words of the Constitution, is susceptible of some illustration from a principle originally engrafted in that instrument, though no longer a part of it. The Constitution, as passed, gave the courts of the United States jurisdiction in suits brought against individual states. A state, then, which violated its own contract, was suable in the courts of the United States for LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 461 that violation. Would it have been a defence in such a suit to say- that the state had passed a law absolving itself from the contract? It is scarcely to be conceived that such a defence could be set up. And yet, if a state is neither restrained by the general principles of our political institutions, nor by the words of the Constitution, from impairing the obligation of its own contracts, such a defence would be a valid one. This feature is no longer found in the Con- stitution; but it aids in the construction of those clauses with which it was originally associated. It is, then, the unanimous opinion of the court, that, in this case, the estate having passed into the hands of a purchaser for a valu- able consideration, without notice, the state of Georgia was re- strained, either by general principles which are common to our free institutions, or by the particular provisions of the Constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally impaired and rendered null and void. * * * Judgment affirmed. Mr. Justice Johnson [dissenting on two points]. * * * Whether the words, "acts impairing the obligation of contracts," can be construed to have the same force as must have been given to the words "obligation and effect of contracts," is the difficulty in my mind. There can be no solid objection to adopting the technical defini- tion of the word "contract," given by Blackstone. The etymology, the classical signification, and the civil-law idea of the word, will all support it. But the difficulty arisfes on the word "obligation," which certainly imports an existing moral or physical necessity. Now a grant or conveyance by no means necessarily implies the continuance of an obligation beyond the moment of executing it. It is most generally but the consummation of a contract, is functus officio the moment it is executed, and continues afterwards to be nothing more than the evidence that a certain act was done. * * STONE V. MISSISSIPPI. (Supreme Court of United States, 1879. 101 U. S. 814, 25 L. Ed. 1079.) [Error to the Mississippi Supreme Court. In 1867 the state leg - islature chartered a corporation empowered for 25 years to conduct a lottery in consideration of the pavment to the state of $5.000. an a_nnual Rutn nf Si , 000 , and Vo per cent, of the proceeds of its sale of t ickets. In 1868 and 1870 a new Consti t ution and a statute for; "Eade all lotteries in the state. A quo warranto proceeding against the managers of the company for violating these later acts was sustained by the state Supreme Court, and this writ of error was taken.] 462 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS Mr. Chief Justice WaiTE. * * * jf ^jje legislature that grant- ed this charter had the power to bind the people of, the state and all succeeding legislatures to allow the corporation to continue its cor- porate business during the whole term of its authorized existence, there is no doubt about the sufficiency of the language employed to effect that object, although there was an evident purpose to conceal the vice of the transaction by the phrases that were used. Whether the alleged contract exists, therefore, or not, depends on the author- ity of the legislature to bind the state and the people of the state in that way. * * * The question is therefore directly presented, whether, in view of these facts, the legislature of a state can, by the charter of a lot- tery company, defeat the will of the people, authoritatively express- ed, in relation to the further continuance of such business in their midst. ' We think it cannot. No legislature can bargain away the public health or the public morals. The people themselves can- not do it. much less their servants. The supervision of both these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their pres- ervation, and cannot divest itself of the power to provide for them. For this purpose the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power it- self. Beer Company v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989. In Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. Ed. 629, it was argued that the contract clause of the Con- stitution, if given the effect contended for in respect to corporate franchises, "would be an unprofitable and vexatious interference with the internal concerns of a state, would unnecessarily and un- wisely embarrass its legislation, and render immutable those civil institutions which are established for the purpose of internal gov- ernment, and which, to subserve those purposes, ought to vary with varying circumstances" (p. 628) ; but Mr. Chief Justice Mar- shall, when he announced the opinion of the court, was careful to say (p. 629), "that the framers of the Constitution did not intend to restrain states in the regulation of their civil institutions, adopt- ed for internal government, and that the instrument they have given us is not to be so construed." The present case, we think, comes within this limitation. We have held, not however with- out strong opposition at times, that this clause protected a corpo- ration in its charter exemptions from taxation. While taxation is m general necessary for the support of government, it is not part of the government itself. Government was not organized for the purposes of taxation, but taxation may be necessary for the pur- poses of government. As such, taxation becomes an incident to the exercise of the legitimate functions of government, but nothing more. No government dependent on taxation for support can bar- LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 463 gain away its whole power of taxation, for that would be substan- tially abdication. All that has been determined thus far is, that for a consideration it may, in the exercise of a reasonable discretion, and for the public good, surrender a part of its powers in this particular. But the power of governing is a trust committed by the people, to the government, no part of which can be granted away . The people, in their sovereign capacity, have established their agencies for the preservation of the public health and the public morals, and the protection of public and private rights. These several agencies can govern according to their discretion, if within the scope of their general authority, while in power; but they cannot give away nor sell the discretion of those that are to come after them, in respect to matters the government of which, from the very nature of things, must "vary with varying circumstances." They may create corporations, and give them, so to speak, a limited citizenship ; but as citizens, limited in their privileges, or otherwise, these creatures of the government creation are subject to such rules and regula- tions as may from time to time be ordained and established for the preservation of health and morality. The contracts which the Constitiitinn protects are those that re- late to property rights, not governmental. It is not always easy to tell on which side of the line which separates governmental from property rights a particular case is tO be put ; but in respect to lot- teries there can be no difficulty. They are not, in the legal accepta- tion of the term, mala in se, but, as we have just seen, may prop- erly be made mala prohibita. They are a species of gambling, and wrong in their influences. They disturb the checks and balances of a well-ordered community. Society built on such a foundation would almost of necessity bring forth a population of speculators and gamblers, living on the expectation of what, "by the casting of lots, or by lot, chance, or otherwise," might be "awarded" to them from the accumulations of others. Certainly the right to suppress them is governmental, to be exercised at all times by those in pow- er, at their discretion. Any one, therefore, who accepts a lottery i charter does so with theTmplied understanding that the people, in l their sovereign capacity, and through their properly constituted agencies, may resume it at any time when the public good shall re- quire, whether it be paid for or not.^ All that one can get by such a charter is a suspension of certain governmental rights in his favor, subject to withdrawal at will He has in legal effect nothing more than a license to enjoy the privilege on the terms named for the specified time, unless it be sooner abrogated by the sovereign pow- er of the state. It is a permit, good as against existing laws, but subject to future legislative and constitutional control or with- drawal. Judgment affirmed. 464 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS NEW ORLEANS GAS CO. v. LOUISIANA LIGHT CO. Hampshire, the most material of which was passed on the 27th of June, 1816, and is entitled " An act to amend the charter and en- ^ lars^e and irhprove the corporation of Dartmouth College." Among other alterations in the charter, this act increases the number of trustees to twenty-one , gives the appointment of the additional members to the executive of the state, and creates a board of over - seers., with power to mspect and control the most important a cjl of the trustees. This board consists of twenty-five persons! The President of the Senate, the Speaker of the House of Representa- tives of New Hampshire, and the Governor and Lieutenant-Gov- ernor of Vermont, for the time being, are to be members ex of- ficio. The board is to be completed by the Governor and Council of New Hampshire, who are also empowered to fill all vacancies \yhich may occur. The acts of the 18th and 26th of December are supplemental to that of the 27th of June, and are principally in- tended to carry that act into effect. The majority of the trustees of the college ha ve refused to ac- cept this amended charter, and have brought this suit for the cor- porate property, which is in possession of a person holding by vir- tue of the acts which have been stated. It can require no argument to prove that the circumstances of this case constitute a contract. An application is made to the i crown for a charter to mcorporate a religious and literary institu- tion. In the application it is stated that large contributions have been made for the object, which will be conferred on the corpora- tion as soon as it shall be created. The charter is granted, and on its faith the property is conveyed. Surely in this transactioii every ingredient of a complete and legitimate contract is to be foflnd. The points for consideration are, 1. Is this contract protected by the Constitution of the United States? 2. Is it impaired by the _ acts under which the defendant holds? < 1. On the first point it has been argued that the word "contract," , in its broadest sense, would comprehend the political relations be- tween the government and its citizens, would exteijd to offices held within a state for state purposes, and to many of those laws concerning civil institutions, which must change with circum- stances, and be modified by ordinary legislation; which deeply concern the public, and which, to preserve good government, the public judgment must control. That even marriage is a contract, and. its obligations are affected by the laws respecting divorces. That the clause in the Constitution, if construed in its greatest lat- itude, would prohibit these laws. Taken in its broad, unlimited sense, the clause would be an unprofitable and vexatious interfer- ^ ence with the internal concerns of a state, would unnecessarily , 470 LAWS IMPAIRING THE OBLIGATIONS OF CONTEACTS and unwisely embarrass its legislation, and render immutable those civil institutions which are established for purposes of internal government, and which, to subserve those purposes, ought to vary with varying circumstances. That as the framers of the Constitu- tion could never have intended to insert in that instrument a provision so unnecessary, so mischievous, and so repugnant to its general spirit, the term "contract" must be understood in a more limited sense. That it must be understood as intended to guard against a power of at least doubtful utility, the abuse of which had been extensively felt, and to restrain the legislature in future from violating the right to property. That anterior to the formation of the Constitution, a course of legislation had prevailed in many, if not in all, of the states, which weakened the confidence of man in man, and embarrassed all transactions between individuals, by dispens- ^ing with a faithful performance of engagements. To correct this mischief, by restraining the power which produced it, the state leg- islatures were forbidden "to pass any law impairing the obligation of contracts," that is, of contracts respecting property, under which some individual could claim a right to something beneficial to him- self; and tha t since the clause in the Constitution must in con- struction receive some limitation, it may be confined, and ouehtto be confined, to cases of this description; to cases within the mis- chief it was intended to remedy. The general correctness of these observations cannot be con- troverted. That the framers of the Constitution did not intend to restrain the states in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given us is not to be so construed, may be admitted. The provision of the Constitution never has been understood to embrace other contracts than those which respect property or some object of value, and confer rights which may be asserted in a court of jus- tice. It has never been understood to restrict the general right of the legislature to legislate on the subject of divorces. Those acts enable some tribunal, not to impair a marriage contract, but to liberate one of the parties because it has been broken by the other. When any state legislature shall pass an act annulling all marriage contracts, or allowing either party to annul it without the consent of the other, it will be time enough to inquire whether such an act be constitutional. The parties in this case differ less on general principles, less on the true construction of the Constitution in the abstract, than on I the application of those principles to his case, and on the true _ construction of the charter of 1769. This is the point on which the cause essentially depends. If the act of incorporation be a grant of political power, if it create a civil institution to be employed in the administration of the government, or if the funds of the col- LAWS IMPAIEING THE OBLIGATIONS OF CONTRACTS 471 lege be public property, or if the state of New Hampshire, as a government, be alone interested in its transactions, the subject is one in which the legislature of the state may act according to its own judgment, unrestrained by any limitation of its power im- posed by the Constitution of the United States. But if this be a private eleemosynary institution, endowed with a capacity to take property for objects unconnected with govern- ment, whose funds are bestowed by individuals on the faith of the charter; if the donors have stipulated for the future disposi- tion and management of those funds in the manner prescribed by themselves ; there may be more difficulty in the case, although neither the persons who have made these stipulations, nor those for whose benefit they were made, should be parties to the cause. . Those who are no longer interested in the property may yet re- tain such an interest in the preservation of their own arrange- ments as to have a right to insist that those arrangements shall be held sacred. Or, if they have themselves disappeared, it be- comes a subject of serious and anxious inquiry whether those whom they have legally empowered to represent them forever may not assert all the rights which they possessed while in being ; whether, if they be without personal representatives who may feel injured by a violation of the compact, the trustees be not so com- pletely their representatives in the eye of the law as to stand in their place, not only as respects the government of the college, but also as respects the maintenance of the college charter. It becomes then the duty of the court most seriously to examine this charter, and to ascertain its true character. * * * [Here is recited the success of Rev. Eleazer Wheelock in establishing a charity school for the religious instruction of Indians, his so- licitation of money and land to establish a college in New Hamp- i shire to extend the undertaking and to promote learning among/ the English, and his appointment of trustees of the property con- ^ tributed.] Dr. Wheelock then applied to the crown for an act of incorporation, and represented the expediency of appointing those whom he had, by his last will, named as trustees in America to be members of the proposed corporation. "In consideration of the premises," "for the education and instruction of the youth of the Ir^dian tribes," &c., "and also of English youth and any others," the charter was granted, and the Trustees of Dartmouth College were by that name created a body corporate, with power, for the use of the said college, to acquire real and personal property, and to pay the president, tutors, and other officers of the college such salaries as they shall allow. * * * [Here are mentioned the charter powers of the trustees to appoint a president and members of the instructing body of the college, to fill vacancies in their own body, and to make regulations for the government of the col- 472 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS lege, not repugnant to law and not excluding persons for their religious sentiments or professions.] This charter was accepted, and the property, both real and personal, which had been con- tributed for the benefit of the college, was conveyed to and vested in the corporate body. From this brief review of the most essential parts of the charter, it is apparent that the funds nf the college consisted entirely of. private donations. * * * Dartmouth College is really endowed by private individuals, who have bestowed their funds for the propagation of the Christian religion among the Indians, and for the promotion of piety and learning generally. From these funds the salaries of the tutors are drawn, and these salaries lessen the expense of education to the students. It is then an eleemosynary (1 Bl. Com. 471) and, as far as respects its funds, a private corr poration. Do its objects stamp on it a different character? Are the trus- tees and professors public officers, invested with any portion of political power, partaking in any degree in the administration of civil government, and performing duties which flow from the sov- ereign authority? That education is an object of national concern and a proper subject of legislation, all admit. That there may be an institution founded by government and placed entirely under its immediate control, the officers of which would be public officers, amenable exclusively to government, none will deny. But is Dartmouth College such an institution? Is education altogether in the hands of government? Does every teacher of youth become a public officer, and do donations for the purpose of education necessarily become public property, so far that the will of the legislature, not the will of the donor, becomes the law of the donation? These questions are of serious moment to society, and deserve to be well con- sidered. * * * Whence, then, can be derived the idea that Dartmouth College has become a public institution, and its trustees public officers, exercising powers conferred by the public for public objects? Not from the source whence its funds were drawn, for its foundation is purely private and eleemosynary; not from the application of those funds, for money may be given for education, and the per- sons receiving it do not, by being employed in the education of youth, become members of the civil government. Is it from the act of incorporation? L,et this subject be considered. A corporation is an artificial being, invisible, intangible, and ex- isting only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. These are such as are supposed best calculated to LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 473 effect the object for which it was created. Among the most im- portant are immortality, and, if the expression may be allowed, individuality ; properties, by which a perpetual succession of many persons are considered as the same, and may act as a single indi- vidual. They enable a corporation to manage its own affairs, and to hold property without the perplexing intricacies, the hazardous and endless necessity, of perpetual conveyances for the purpose of transmitting it from hand to hand. It is chiefly for the pur- pose of clothing bodies of men in succession with these qualities and capacities that corporations were invented and are in use. By these means, a perpetual succession of individuals are capable of acting for the promotion of the -particular object, like one im- mortal being. But this being does not share in the civil govern- ment of the country, unless that be the purpose for which it was created. Its immortality no more confers on it political power or a political character than immortality would confer such power or character on a natural person. It is no more a state instrument than a natural person exercising the same powers would be. If, then, a natural person, employed by individuals in the education of youth, or for the government of a seminary in which youth is educated, would not become a public officer, or be considered as, a member of the civil government, how is it that this artificial being, created by law for the purpose of being employed by the same individuals for the same purposes, should become a part of the civil government of the country? Is it because its existence,, its capacities, its powers, are given by law? Because the govern- ment has given it the power to take and to hold property, in a particular form and for particular purposes, has the government a consequent right substantially to change that form, or to vary the purposes to which the property is to be applied? This prin- ciple has never been asserted or recognized, and is supported by no authority. Can it derive aid from reason? The objects for which a corporation is created are universally such as the government wishes to promote. They are deemed beneficial to the country; and this benefit constitutes the consid- eration, and, in most cases, the sole consideration of the grant. In most eleemosynary institutions, the object would be difficult, perhaps unattainable, without the aid of a charter of incorporation. Charitable or public-spirited individuals, desirous of making per- manent appropriations for charitable or other useful purposes, find it impossible to effect their design securely and certainly with- out an incorporating act. They apply to the government, state their beneficent object, and offer to advance the money necessary for its accomplishment, provided the government will confer on the instrument which is to execute their designs the capacity to execute them. The proposition is considered and approved. The 474 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS benefit to the public is considered as an ample compensation for the faculty it confers, and the corporation is created. If the ad- vantages to the public constitute a full compensation for the fac- ulty it gives, there can be no reason for exacting a further compen- sation, by claiming a right to exercise over this artificial being a power which changes its nature, and touches the fund for the se- curity and application of which it was created. There can be no reason for implying in a charter, given for a valuable considera- tion, a power which is not only not expressed, but is in direct con- tradiction to its express stipulations. From the fact, then, that a charter^ of incorpo ration has been granted, nothing can be inferred which c hanges the character of the institution, or transfers to the government any new po wer over it. The character of civil institutions does not grow out of their incorporation, but out of the manner in which they are formed, and the objects for which they are created. The right to change thern is not founded on their being incorporated, but on thpir b eing;- the instruments of government, created for its purposes. The same institutions, created for the same objects, though not incorporated, would be public institutions, and, of course, be controllable By the legislature. The incorporating act neither gives nor prevents this control. Neither, in reason, can the incorporatin g ac t change the character of a private eleemosynary institution. We are next led to the inquiry, for whose benefit the property given to Dartmouth College was secured? The counsel for the defendant have insisted that the beneficial interest is in the people of New Hampshire. * * * The particular interests of New Hampshire never entered into the mind of the donors, never coif- stituted a motive for their donation. The propagation of the Chris- tian religion among the savages, and the dissemination of useful knowledge among the youth of the country, were the avowed and the sole objects of their contributions. In these New Hampshire would participate; but nothing particular or exclusive was in- tended for her. * * * The clause which constitutes the in- corporation, and expresses the objects for which it was made, de- clares those objects to be the instruction of the Indians, "and also of English youth and any others." So that the objects of the con- tributors and the incorporating act were the same, — the promo- tion of Christianity and of education generally, not the interests of New Hampshire particularly. * * * Yet a question remains to be considered of more real difficulty, on which more doubt has been entertained than on all that have been discussed. The founders of the college, at least those whose contributions were in money, have parted with the property be- stowed upon it, and their representatives have no interest in that property. The donors of land are equally without interest so long LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS '475 as the corporation shall exist. Could they be found, they are unaffected by any alteration in its constitution, and probably re- gardless of its form or even of its existence. The students are fluctuating, and no individual among our youth has a vested in- terest in the institution which can be asserted in a court of justice. Neither the founders of the college, nor the youth for whose ben- efit it was founded, complain of the alteration made in its charter, or think themselves injured by it. The trustees alone complain, and the trustees have no beneficial interest to be protected. Can this be such a contract as the Constitution intended to withdraw from the power of state legislation? Contracts, the parties to which have a vested beneficial interest, and those only, it has been said, are the objects about which the Constitution is solicitous, and to which its protection is extended. The court has bestowed on this argument the most deliberate consideration, and the result will be stated. Dr. Wheelock, acting for himself and for those who, at his solicitation, had made con- tributions to his school, applied for this charter, as the instru- ment which should enable him and them to perpetuate their benefi- cent intention. It was granted. An artificial, immortal being was created by the crown, capable of receiving and distributing forever, according to the will of the donors, the donations which should . be made to it. On this being, the contributions which had been collected were immediately bestowed. These gifts were made, not indeed to make a profit for the donors or their posterity, but for something, in their opinion, of inestimable value; for some- thing which they deemed a full equivalent for the money with which it was purchased. The consideration for which they stip- ulated, is the perpetual application of the fund to its object, in the mode prescribed by themselves. Their descendants may take no interest in the preservation of this consideration. But in this re- spect their descendants are not their representatives. They are represented by the corporation. The corporation is the assignee of their rig hts, stands in their place, and distributes their bounty, as thev wo uld themselves have distributed it had they been im- mortal, tio with respect to the students who are to derive learn- ing from this source. The corporation is a trustee for them also. Their potential rights, which, taken distributively, are impercepti- ble, amount collectively to a most important interest. These are, in the aggregate, to be exercised, asserted, and protected by the corporation. * * * This is plainly a contract to which the donors, the trustees, and the crown ( to whose rignts and obligations JNew Hampshire suc- ceeds) were the original parties. It is a contract made on a val- uable consideration. It is a contract lor tne secuntv and dis- position of property. It is a contract on the faith of which real 476 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS and personal estate has been conveyed to the corporation. It is then a contract within the letter of the Constitution, and within its spirit also, unless the fact that the property is invested by the donors in trustees for the promotion of religion and education, for the benefit of persons who are perpetually changing, though the objects remain the same, shall create a particular exception, tak- ing this case out of the prohibition contained in the Constitution. It is more than possible that the preservation of rights of this description was not particularlv in the view of the framers of the Constitution when the clause under consideration was introduced i nto that instrument. It is probable that interferences of more frequent recurrence, to which the temptation was stronger and of which the mischief was more extensive, constituted the great mo- tive for imposing this restriction on the state legislatures. But ■ although a particular and a rare case may not in itself be of suf- 9 ficient magnitude to induce a rule, yet it must be governed by the rule, when established, unless some plain and strong reason for excluding it can be given. It is not enough to say that this par- ticular case was not in the mind of the convention when the article was framed, nor of the American people when it was adopted. It is necessary to go farther, and to say that, had this particular case been suggested, the language would have been so varied as to exclude it, or it would have been made a special exception. The case, being within the words of the rule, must be within its op- eration likewise, unless there be something in the literal construc- tion so obviously absurd, or mischievous', or repugnant to the general spirit of the instrument as to justify those who expound the Constitution in making it an exception. On what safe and intelligible ground can this exception stand? There is no expression in the Constitution, no sentiment delivered by its contemporaneous expounders, which would justify us in making it. In the absence of all authority of this kind, is there, in the nature and reason of the case itself, that which would sus- tain a construction of the Constitution not warranted by its words ? Are contracts of this description of a character to excite so little interest that we must exclude them from the provisions of the Constitution, as being unworthy of the attention of those who framed the instrument? Or does public policy so imperiously demand their remaining exposed to legislative alteration as to compel us, or rather permit us to say, that these words, which were introduced to give stability to contracts, and which in their plain import comprehend this contract, must yet be so construed as to exclude it? * * * All feel that these objects^ are not deemed unimportant in the United States. The interest which this case has excited proves that they are not. The framers of the Constitution did not deem. LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS 477 them unworthy of its care and protection. They have, though in a different mode, manifested their respect for science by reserv- ing to the government of the Union the power "to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." They have so far withdrawn science and the useful arts from the action of the state governments. Why, then, should they be supposed so regardless of contracts made for the advancement of literature as to intend to exclude them from provisions made for the security of ordinary contracts between man and man ? No reason for making this supposition is perceived. If the insignificance of the object does not require that we should exclude contracts respecting it from the protection of the Consti- tution ; neither, as we conceive, is the policy of leaving them subject to legislative alteration so apparent as to require a forced conV struction of that instrument in order to effect it. These eleemosy- nary institutions do not fill the place which would otherwise be occupied by government, but that which would otherwise remain vacant. They are complete acquisitions to literature. They are ■donations to education; donations which any government must be disposed rather to encourage than to discountenance. It re- quires no very critical examination of the human mind to enable us to determine that one great inducement to these gifts is the conviction felt by the giver that the disposition he makes of them is immutable. It is probable that no man ever was, and that no man ever will be, the founder of a college, believing at the time that an act of incorporation constitutes no security for the institution; believing that it is immediately to be deemed a public institution, whose funds are to be governed and applied, not by the will of the donor, but by the will of the legislature. All such gifts are made in the pleasing, perhaps delusive, hope that the charity will flow forever in the channel which the givers have marked out for it. If every man finds in his own bosom strong evidence of the universality of this sentiment, there can be but little reason to imagine that the framers of our Constitution were strangers to it; and that, feeling the necessity and policy of giving permanence and security to contracts, of withdrawing them from the influence of legislative bodies, whose fluctuating policy and repeated inter- ferences produced the most perplexing and injurious embarrass- ments, they still deemed it necessary to leave these contracts sub- ject to those interferences. The motives for such an exception must be very powerful to justify the construction which makes £j_ * * * The opinion of th e court, after mature deliberation is, that this is aTonti'act, tlie uljlTgation of which cannot be impaired withoqt 478 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS Yjplati'ng tVip frin stitution of the United States . This opinion appears to us to be equally supported by reason and by the former decisions of this court. 2. We next proceed to the inquiry whether its obligation has been impaired by those acts of the Legislature of New Hamp- shire to which the special verdict refers. * * * On the effect of this law two opinions cannot be entertained. Between acting directly and acting through the agency of trustees and overseers no essential difference is perceived. The whole ^" power of governing the college is transferred from trustees ap- pointed according to the will of the founder, expressed in the char- ^•ter, to the executive of New Hampshire. The management and application of the funds of this eleemosynary institution, which are placed by the donors in the hands of trustees named in the charter, and empowered to perpetuate themselves, are placed by this act under the control of the government of the state. The will of the state is substituted for the will of the donors in every, essential operation of the college. This is not an immaterial change. The founders ot the college contracted, not merely for the per- petual application of the funds which they gave to the objects for which those funds were given, they contracted also to secure that, application by the constitution of the corporation. They con- tracted for a system which should, as far as human foresight can provide, retain forever the government of the literary institution they had formed, in the hands of persons approved by themselves. This system is totally changed. The charter of 1769 exists no longer. It is reorganized, and reorganized in such a manner as to convert a literary institution, moulded according to the will of its founders and placed under the control of private literary men, into a machine entirely subservient to the will of government. This may be for the advantage of this college in particular, and mayj be for the advantage of literature in gener a l : hut it is not ac- cord mg to tti e will of the donors , and is subversive of that conr tract on the faith ol wn icn tneir property was given. * * * Judgment reversed. ~~ " ' [Washington and Story, JJ., gave concurring opinions. Liv- ingston, J., concurred in all the opinions, Johnson, J., concurred m Chief Justice Marshall's opinion, and Duvall, J., dissented.] LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 479 CHARLES RIVER BRIDGE v. WARREN BRIDGE. (Supreme Court of United States, 1837. 11 Pet. 420, 9 L. Ed. 773.) [Error to the Massachusetts Supreme Court. In 1785 Massa- chusetts by statute incorporated a company, "The Proprietors of the Charles River Bridge," empowered to erect a bridge between Boston and Charleston in the place where there was then a ferry, and to take certain tolls for the use thereof. The charter was lim- ited to 40 years and until its expiration the company was to pay i200, annually to Harvard College, which had owned the ferry superseded by the bridge. The bridge was opened in 1786, and in 1792 the company charter was extended to 70 'years. In 1828 Massachusetts incorporated the Warren Bridge Company to erect another bridge over the Charles river a few rods from the first bridge. The new bridge was to be a free bridge at the end of. 6 years, or sooner if the tolls paid its cost before then . The orig- inal bridge company asked an injunction in the state courts against the erection and use of the Warren bridge, which was denied by an equal division of the state Supreme Court. This writ of error was then taken. Before its argume nt the Warren hridg-p had be- Mr. Chief Justice Taney. * * * [After, discussing the orig- inal ferry franchise and other matters unconnected with the con- tract clause of the Constitution :] This brings us to the act of the legislature of Massachusetts, of 1785, by which the plaintiffs were incorporated by the name of "The Proprietors of the Charles River Bridge"; and it is here, and in the law of 1792, prolonging their charter, that we must look for the extent and nature of the fran- chise conferred upon the plaintifiEs. Much has been said in the argument of the principles of construc- tion by which this law is to be expounded, and what undertak- ings, on the part of the state, may be implied. The court think there can be no serious difficulty on that head. It is the grant of certain franchises by the public to a private corporation, and in a matter where the public interest is concerned. The rule of con- struction in such cases is well settled, both in England and by the decisions of our own tribunals. In 2 Barn. & Adol. 793, in the case of the Proprietors of the Stourbridge Canal ag'ainst Wheely and others, the court say: "The canal having been made under an act of Parliament, the rights of the plaintiffs are derived en- tirely from that act. This, like m,any other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute; and the rule of construction, in all such cases, is now fully established to be this: that any ambiguity in the te rm^ nf the t-nnfrar t must operate against the adventurers, and in favor of the public, and the plaintiffs can claim 480 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS nothine^ that is not clearly given them by the act. " And the doc- trine thus laid down is abundantly sustained by the authorities referred to in this decision. The case itself was as strong a one as could well be imagined for giving to the canal company, by implication, a right to the tolls .they demanded. Their canal had been used by the defendants, to a very considerable extent, in transporting large quantities of coal. The rights of all persons to navigate the canal were expressly secured by the act of parlia- ment; so that the company could not prevent them from using it, and the toll demanded was admitted to be reasonable. Yet, as they only used one of the levels of the canal, and did not pass through the locks; and the statute, in giving the right to exact toll, had given it for articles which passed "through any one or more of the locks," and had said nothing as to toll for navigating one of the levels ; the court held that the right to demand toll, in the latter case, could not be implied, and that the company were not entitled to recover it. This was a fair case for an equitable construction of the act of incorporation, and for an implied grant ; if such a rule of construction could ever be permitted in a law of that description. For the canal had been made at the expense of the company; the defendants had availed themselves of the fruits of their labors, and used the canal freely and extensively for their own profit. Still the right to exact toll could not be implied, be- cause such a privilege was not found in the charter. Borrowing, as we have done, our system of jurisprudence from the English law; and having adopted, in every other case, civil and criminal, its rules for the construction of statutes; is there anything in our local situation, or in the nature of our political institutions, which should lead us to depart from the principle where corporations are concerned ? Are we to apply to acts of in- corporation a rule of construction differing from that of the Eng- lish law, and, by implication, make the terms of a charter in one of the states, more unfavorable to the public, than upon an act of parliament, framed in the same words, would be sanctioned in an English court? Can any good reason be assigned for excepting this particular class of cases from the operation of the general principle, and for introducing a new and adverse rule of construc- tion in favor of corporations, while we adopt and adhere to the rules of construction known to the English common law, in every other case, without exception? We think not; an d it would pre- sent a singular spectacle, if, while the courts in England are re- straming, within the strictest limits, the spirit of monopoly, and exclusive privileges in nature of monopolies, and confining corpo- rations to the privileges plainly given to them in their charter, the courts of this country should be found enlarging these privileges by implication ; and construing a statute more unfavorgibly to the . public, and to the rights of the community, than would be done LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS 481 i n a like case in an English court of justice . * * * [Here fol- lows a brief discussion ot several cases, the chief of which, Prov- idence Bank v. Billings, 4 Pet. 514, 7 L. Ed. 939 (1830), decided that a charter incorporating a bank with the usual powers carried with it no exemption from state taxation upon the banking busi- ness.] The case now before the- court is, in principle, precisely the same. It is a charter from a state. The act of incorporation is silent in relation to the contested power. The argument in favor of the Proprietors of the Charles River Bridge is the same, almost in words, with that used by the Providence Bank; that is, that the power claimed by the state, if it exists, may be so used as to de- stroy the value of the franchise they have granted to the corpora- tion. The argument must receive the same answer; and the fact that the power has been already exercised so as to destroy the value of the franchise, cannot in any degree affect the principle. The existence of the power does not, and cannot, depend upon the circumstance of its having been exercised or not. It may, perhaps, be said, that in the case of the Providence Bank, this court were speaking of the taxing power; which is of vital importance to the very existence of every government. But the object and end of all government is to promote the happiness and prosperity of the community by which it is established ; and it can never be assumed, that the government intended to diminish its power of accomplishing the end for which it was created. And in a country like ours, free, active, and enterprising, continually advancing in numbers and wealth, new channels of communica- tion are daily found necessary, both for travel and trade; and are essential to the comfort, convenience, and prosperity of the people. A state ought never to be presumed to surrender this power, be- cause, like the taxing power, the whole community have an inter- est in preserving it undiminished. And when a corporation al- leges, that a state has surrendered, for seventy years, its power of improvement and public accommodation, in a great and im- portant line of travel, along which a vast number of its citizens must daily pass, the community have a right to insist, in the lan- guage of this court above quoted, "that its abandonment ought not to be presumed in a case in which the deliberate purpose of the state to abandon it does not appear." The continued existence of a government would be of no great value, if by implications and presumptions it was disarmed of the powers necessary to accomplish the ends of its creation; and the functions it was de- signed to perform, transferred to the hands of privileged corpora- tions. The rule of construction announced by the court was not confined to the taxing power ; nor is it so limited in the opinion de- livered. On the contrary, it was distinctly placed on the ground Hall Cases Const.L. — 31 482 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS that the interests of the community were concerned in preserving, undiminished, the power then in question; and whenever any power of the state is said to be surrendered or diminished, whether it be the taxing power or any other affecting the public interest, the same principle applies, and the rule of construction must be the same. No one will question that the interests of the great body of the people of the state would, in this instance, be affected by the surrender of this great line of travel to a single corporation, with the right to exact toll, and exclude competition for seventy years. While the rights of private property are sacredly guarded, we must not forget that the community also have rights, and that the happiness and well-being of every citizen depends on their faithful preservation. Adopting the rule of construction above stated as the settled one, we proceed to apply it to the charter of 1785 to the Propri- etors of the Charles River Bridge. * * * The relative position of the Warren Bridge has already been described. It does not in- terrupt the passage over the Charles River Bridge, nor make the way to it or from it less convenient. None of the faculties or fran- chises granted to that corporation have been revoked by the legis- lature; and its right to take the tolls granted by the charter re- mains unaltered. In short, all the franchises and rights of prop- erty enumerated in the charter, and there mentioned to have been granted to it remain unimpaired. But its income is destroyed by the Warren Bridge; which, being free, draws off the passengers and property which would have gone over it, and renders their franchise of no value. This is the gist of the complaint. For it is not pretended that the erection of the Warren Bridge would have done them any injury, or in any degree affected their right of property, if it had not diminished the amount of their tolls. In order then to entitle themselves to relief, it is necessary to show that the legislature contracted not to do the act of which they complain; and that they impaired or, in other words, violated that contract by the erection of the Warren Bridge. The inquiry then is, does the charter contain such a contract on the part of the state? Is there any such stipulation to be found in that instrument? It must be admitted on all hands, that there is none, — no words that even relate to another bridge, or to the diminution of their tolls, or to the line of travel. If a contract on that subject can be gathered from the charter, it must be by im- plication, and cannot be found in the words used. Can such an agreement be implied? The rule of construction before stated is an answer to the question. In charters of this description, no rights are taken from the public, or given to the corporation, be- yond those which the words of the charter, by their natural and proper construction, purport to convey. There are no words LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 483 which import such a contract as the plaintiffs in error contend for, and none can be implied ; and the same answer must be given to them that was given by this court to the Providence Bank. The whole community are interested in this inquiry, and they have a right to require that the power of promoting their comfort and convenience, and of advancing the public prosperity, by providing safe, convenient, and cheap ways for the transportation of produce and the purposes of travel, shall not be construed to have been sur- rendered or diminished by the state, unless it shall appear by plain words that it was intended to be done. * * * And what would be the fruits of this doctrine of implied con- tracts on the part of the states, and of property in a line of travel by a corporation, if it should now be sanctioned by this court ? To what results would it lead us? If it is to be found in the charter to this bridge, the same process of reasoning must discover it, in the various acts which have been passed, within the last forty years, for turnpike companies. And what is to be the extent of the privileges of exclusion on the different sides of the road ? The counsel who have so ably argued this case have not attempted to define it by any certain boundaries. How far must the new im- provement be distant from the old one? How near may you approach without invading its rights in the privileged line ? If this court should establish the principles now contended for, what is to become of the numerous railroads established on the same line of travel with turnpike companies; and which have rendered the franchises of the turnpike corporations of no value? Let it once be understood that such charters carry with them these implied contracts, and give this unknown and undefined property in a line of travelling, and you will soon find the old turnpike corporations awakening from their sleep and calling upon this court to put down the improvements which have taken their place. The mil- lions of property which have been invested in railroads and canals upon lines of travel which had been before occupied by turnpike corporations will be put in jeopardy. We shall be thrown back to the improvements of the last century, and obliged to stand still until the claims of the old turnpike corporations shall be satisfied, and they shall consent to permit these states to avail themselves of the lights of modern science, and to partake of the benefit of those improvements which are now adding to the wealth and pros- perity, and the convenience and comfort, of every other part of the civilized world. Nor is this all. This court will find itself com- pelled to fix, by some arbitrary rule, the width of this new kind of property in a line of travel ; for if such a right of property exists, . we have no lights to guide us in marking out its extent, unless, indeed, we resort to the old feudal grants, and to the exclusive rights of ferries, by prescription, between towns, and are prepared 484 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS to decide that when a turnpike road from one town to another had been made, no railroad or canal, between these two points, could afterwards be established. This court are not prepared to sanc- tion principles which must lead to such results. * * * Judgment afifirmed. [McLean, J., concurred in the result. Story, J., g-ave an elabor- ate dissenting opinion, in which Thompson, J., concurred.] PIQUA BRANCH OF STATE BANK OF OHIO v. KNOOP. (Supreme Court of United States, 1853. 16 How. 369, 14 L. Ed. 977.) [Error to Ohio Supreme Court. An Ohio statute of 1845 au- thorized the incorporation o f banks subject to the provisions of the act. It provided that each company a cce pting the act and ^. comnlvinp^ therewith sh ould pay 6 per cent, ot its semi-annual profits to the state, in lieu ot an taxes to which the company or itS: stockholders would otherwise be subject. The Piqua Bank was organized under this act in 1847, as a branch of the State Bank of Ohio. In 1 851 a state statute purported to subjec t t he capital stock, surplus, and contingent fund ot banks in the state to the samp tayatinp as other personal property ! The state's suit against the Piqua Branch for taxes under the act of 1851 was sustained by the state courts, and this writ of error was taken.] Mr. Justice McLEan. * * * The idea that a state, by ex- empting from taxation certain property, parts with a portion of its sovereignty, is of modern growth; and so is the argument that if a state may part with this in one instance it may in every other, so as to divest itself of the sovereign power of taxation. Such an argument would be as strong and as conclusive against the ex- ercise of the taxing power. For if the legislature may levy a tax upon property, they may absorb the entire property of the tax- payer. The same may be said of every power where there is an exercise of judgment. * * *. The assumpti on that a state, in exempting certain property from taxation, relinquishes a part ofits sovereign power, is unfoundecj] i'he taxing power may select its objects of taxation; and this is generally regulated by the amount necessary to answer the pur- poses of the state. Now the exemption of property from taxation is a quest ion nf pnlicv and not of power. A sound currency should be a desirable object to every government; and this in our country is secured generally through the instrumentality of a well-regu- lated system of banking. To establish such institutions as shall meet the public wants and secure the public confidence, induce- ments must be held out to capitalists to invest their funds. They must know the rate of interest to be charged by the bank, the time LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 485 the charter shall run, the liabilities of the company, the rate of taxation, and other privileges necessary to a successful banking operation. These privileges are profifered by the state, accepted by the stockholders, and in consideration funds are invested in the bank. Here is a contract by the state and the bank, a contract founded . upon considerations of policy required by the general interests of the community, a contract protected by the laws of England and America, and by all civilized states where the common or the civil law is established. * * * There is no cons titutional objection to the exercise of the powec to make a bmdmg contract by a state, It necessarily exists in its 'sovereignty, and it has been so held by all the courts in this coun- try. A denial of this is a denial of state sovereignty. It takes from the state a jpower essential to the discharge of its functions as sovereign. If it do not possess this attribute, it could not com- municate it to others. There is no power possessed by it more es- sential than this. Through the instrumentality of contracts, the machinery of the government is carried on. Money is borrowed, and obligations given for payment. Contracts are made with in- dividuals, who give bonds to the state. So in the granting of charters. If there be any force in the argument, it applies to con- tracts made with individuals, the same as with corporations. But it is said the state cannot barter away any part of its soverei^ntv . No one ever contended that it could. A state, in granting privileges to a bank, with a view of afiford- ing a sound currency, or of advancing any policy connected with the public interest, exercises its sovereignty, and for a public pur- pose, of which it is the exclusive judge. Under such circumstanc- es, a contract made for a specific tax, as in the case before us, is binding. This tax continues, although all other banks should be exempted from taxation. Having the power to make the contract^ and rights becoming vested under it, it can no more be disregarded nor set aside by a subsequent legislature, than a grant for landT This act, so far from parting with any portion of the sovereignty, is an exercise of it. Can any one deny this power to the legis- lature? Has it not a right to select the objects of- taxation and determine the amount? To deny either of these, is to take away state sovereignty. It must be admitted that the state has the sovereign power to do this, and it would have the sovereign power to impair or annul a contract so made, had not the Constitution of the United States inhibited -the exercise of such a power. The vague and undefined and indefinable notion, that every exemption from taxation or a specific tax, which withdraws certain objects from the general tax law, affects the sovereignty of the state, is indefensible. 486 LAWS IMPAIRING THE OBLIGATIONS OP CONTRACTS Xhere has been rarely, if ever, it is believed, a tax law passec^ by any state m the Union, which did tlot contain some exemptions ' from general taxation. The act of Ohio of the 25th of March, 1851, in the fifty-eighth section, declared that "the provisions of that act "shall not extend to any joint-stock company which now is, or may hereafter be organized, whose charter or act of incorporation shall have guaranteed to such company an exemption from taxation, or has prescribed any other as the exclusive mode of taxing the same." Here is a recognition of the principle now repudiated, jn the same act, there are eighteen exemptions from taxation . The federal government enters into an arrangement with a for- eign state for reciprocal duties on imported merchandise, from the one country to the other. Does this afifect the sovereign power of either state? The sovereign power in each was exercised in making the compact, and this was done for the mutual advantage of both countries. Whether this be done by treaty, or by law, is immaterial. The compact is made, and it is binding on both coun- tries. The argumen t is, and must be, that a soverei gn state may make a binding contract witn one oi its citizens, and, m the exercise 6T its sovereignty. repudiate"i t. The Constitution of the Union, when first adopted, made states subject to the federal judicial power. Could a state, while this power continued, being sued for a debt contracted in its sovereign capacity, have repudiated it in the same capacity? In this respect the Constitution was very properly changed, as no state should be subject to the judicial power gen- erally. Much stress was laid on the argument, and in the decisions of the Supreme Court, on the fact that the banks paid no bonus for their charters, and that no contract can be binding which is not mutual. This is a matter which can have no influence in deciding the legal question. The state did not require a bonus, but other requisitions are found in the charter, which the legislature deemed sufficient, and this is not questionable by any other authority. The obligation is as strong pn the state, from the privileges grant- ed and Accepted, as if a bonus had been oaid. =^ =»= * Judgment reversed. [Taney, C. J., gave a concurring opinion. CaTron, Daniel, and Campbell, JJ., gave dissenting opinions.]* * The grounds of this dissent are indicated by the following extract from a similar dissenting opinion of Miller, J., sixteen years later, In "Washington University v. Rouse, 8 Wall. 439, 443, 444, 19 L. Ed. 498 (1869): "We do not believe that any legislative body, sitting under a state Constitution of the ' usual t;haracter, has a right to sell, to give, or to bargain away forever the tax- ing power "of the state. This Is a power which, in modern political socie- ties, is absolutely necessary to the continued existence of every such society. While under such forms of government, the ancient chiefs or heads of the government might carry it on by revenues owned by them personally, and LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS 487 VON HOFFMAN v. QUINCY. (Supreme Court of United States, 1866. 4 WaU. 535, 18 L. Ed. 403.) [Error to the United States Circuit Court for the Southern Dis- trict of Illinois. The citv of Ouincy. 111., issued bonds in aid of railroads, under statutes authorizing the levy of a special tax upon property therein suthcient to pay the annual interest on such bonds and to be devoted to this purpose only. A subsequent statute re- duced, the city's taxing powers for debts "and general expenses to ^ per cent., which would leave nothing for these bonds after pavr ing current expenses. Von Hoffman petitioned in the above-named court for a mandamus to compel the city and its officers to levy ^ taxes under the ongmat acts and pay a judgment for interest on said bonds, which he had recovered against the city. Upon judg- ment for the city upon his petition, Von Hoffman took this writ of error.] Mr. Justice SwaynE. * * * It is * * * settled that the laws which subsist at the time and place of the making of a con- tract, and where it is to be perforrjied, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This principle embraces alike those which affect its valid- ity, construction, discharge, and enforcement. Illustrations of this proposition are found, in the obligation of the debtor to pay inter- by the exaction of personal service from their subjects, no civilized govern- ment has ever existed that did not depend upon taxation in some form for the continuance of that existence. To hold, then, that any one of the annual leg- islatures can, by contract, deprive the state forever of the power of taxation, is to Sold that they can destroy the government which they are appointed to serve, and that their action in that regard is strictly lawful. It cannot be maintained, that this power to bargain away, for an unlimited time, the right of taxation, if it exist at all, is limited, in reference to the subjects of tax- ation. In all the discussion of this question, in this court and elsewhere, no such limitation has been claimed. If the legislature can exempt in perpetu- ity, one piece of land, it can exempt all land. If it can exempt all land, it can exempt all other property. It can, as well, exempt persons as corpora- tions. And no hindrance can be seen, in the principle adopted by the court, to rich corporations, as railroads and express companies, or rich men, mak- ing contracts with the legislatures, as they best may, and with such appli- ances as it is known they do use, for perpetual exemption from all the bur- dens of supporting the government. The result of such a principle, under the growing tendency to special and partial legislation, would be, to exempt the rich from taxation, and cast all the burden of the support of government, and the payment of its debts, on those who are too poor or too honest to purchase such immunity. With as full respect for the authority of former decisions, as belongs, from teaching and habit, to judges trained in the com- mon-law system of jurisprudence, we think that there may be questions touch- ing the powers of legislative bodies, which can never be finally closed by the decisions of a court, and that the one we have here considered is of this char- acter. We are strengthened, in this view of the subject, by the fact that a series of dissents, from this doctrine, by some of our predecessors, shows that it has never received the full assent of this court ; and referring to those dissents for more elaborate defence of our views, we content ourselves with thus renewing the protest against a doctrine which we think must finally be abandoned." 488 LAWS IMPAIEING THE OBLIGATIONS OF CONTEACXS est after the maturity of the debt, where the contract is silent ; in the liability of the drawer of a protested bill to pay exchange and damages, and in the right of the drawer and indorser to require proof of demand and notice. These are as much incidents and con- ditions of the contract as if they rested upon the basis of a distinct agreement. Green v. Biddle, 8 Wheat. 92, 5 L. Ed. 547; Bronson V. Kinzie, 1 How. 319, 11 L. Ed. 143; McCracken v. Hay ward, 2 How. 612, 11 L. Ed. 397; People v. Bond, 10 Cal. 570; Ogden v. Saunders, 12 Wheat. 231, 6 L. Ed. 606. In Green v. Biddle, the subject of laws which aflfect the remedy was elaborately discussed. The controversy grew out of a compact between the states of Virginia and Kentucky. It was made in con- templation of the separation of the territory of the latter from the former, and its erection into a state, and is contained in an act of the legislature of Virginia, passed in 1789, whereby it was provided "that all private rights and interests within" the district of Ken- tucky "derived from the laws of Virginia prior to such separation shall remain valid and secure under the laws of the proposed state, and shall be determined by the laws now existing in this state." By two acts of the legislature of Kentucky, passed respectively in 1797 and 1812, several new provisions relating to the consequences of a recovery in the action of ejectment — all eminently beneficial to the defendant, and onerous to the plaintiff — were adopted into the laws of that state. So far as they affected the lands covered by the compact, this court declared them void. It was said : "It is no answer that the acts of Kentucky now in question are regulations of the remedy, and not of the right to the lands. If these acts so change the nature and extent of existing remedies as materially to impair the rights and interests of the owner, they are just as much a violation of the compact as if they overturned his rights and in- terests." In Bronson v. Kinzie . 1 How. 311, 11 L. Ed. 143, the subject was again fully considered. A mortgage was executed in Illinois con- taining a power of sale. Subsequently, an act of the legislature was passed which required mortgaged premises to be sold for not less than two-thirds of their appraised value, and allowed the mort- gagor a year after the sale to redeem. It was held that the statute, by thus changing the pre-existing remedies, impaired the obligation of the contract, and was therefore void. In McCracken v. Hay ward, 2 How. 608, 11 L. Ed. 397. the same principle, upon facts somewhat varied, was again sustained and ap- plied. A statutory provision that personal property should not be sold under execution for less than two-thirds of its appraised value was adjudged, so far as it affected prior contracts, to be void, for the same reason. * * * A statute of frauds embracing a pre-existing parol contract not before required to be in writing would affect its validity. A statute LAWS XMPAIKINQ THE OBLIGATIONS OF CONTRACTS 489 declaring that the word "ton" should thereafter be held, in prior as well as subsequent contracts, to mean half or double the weight be- fore prescribed, would afifect its construction. A statute providing that a previous contract of indebtment may be extinguished by a process of bankruptcy would involve its discharge, and a statute forbidding the sale of any of the debtor's property, under a judg- ment upon such a contract, would relate to the remedy. It cannot be doubted, either upon principle or authority, that each of such laws passed by a state would impair the obligation of the contract, and the last-mentioned not less than the first. Noth- ing can be more material to the obligation than the means of en- forcement. Without the remedy the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall witlT in the class of those moral and social duties which depend for their fulfilment wholly upon the will of the individual . The ideas of validity and remedy are inseparable, and both are parts of the ob-- ligation, which is guaranteed by the Constitution against invasion. The obligation of a contract "is the law which binds the parties to perform their agreement." Sturges v. Crowninshield, 4 Wheat. 157, 4 L. Ed. 529. The prohibition has no reference to the degree of impairment. The largest and least are alike forbidden. In , Green v. Biddle, 8 Wheat. 84, 5 L,. Ed. 547, it was said: " The ob - jection to a law on the ground of its impairing the obligation of a, contract can never depend upon the extent of the change which the. law etiects in it! Any deviation from its terms by postponing or accelerating the period of performance which it prescribes, impos- ing conditions not expressed in the contract, or dispensing with those which are, however minute or apparently immaterial in their effect upon the contract of the parties, impairs its obligation. Up- on this principle it is that if a creditor agree with his debtor to postpone the day of payment, or in any other way to change the terms of the contract, without the consent of the surety, the lat- ter is discharged, although the change was for his advantage." "One of the tests that a contract has been impaired is that its value has, by legislation, been diminished. It is not, by the Con- stitution, to be impaired at all. This is not a question of degree or cause, but of encroaching, in any respect, on its obligation — di s- pensmg with any part of its force." Planters' Bank v. Sharp et al., . 6 How. 327, 12 h. Ed. 447. This has reference to legislation which affects the contract di- rectly, and not incidentally or only by consequence. The right to imprison for debt is not a part of the contract. It is regarded as penal rather than remedial. The states may abolish it whenever they think proper. Beers v. Haughton, 9 Pet. 359, 9 L. Ed. 145 ; Ogden v. Saunders, 12 Wheat. 230, 6 L. Ed. 606 ; Mason v. Haile, 12 Wheat. 373, 6 L. Ed. 660 ; Sturges v. Crowninshield, 4 Wheat. 200, 4 L. Ed. 529. They may also exempt from sale, under '490 LAWS IMPAIRING THE OBLIGATIONS OF CONTRACTS execution, the necessary implements of agriculture, the tools of a mechanic, and articles of necessity in household, furniture. It is said : "Regulations of this description have always been consider- , ed in every civilized community as properly belonging to the rem- ' edy, to be exercised by every sovereignty according to its own views of policy and humanity." It is competent for the states to change the form of the remedy , or to modify it otherwise, as thev may see fit, prnvided no snhstan- tial right secured by the contract is thereby impaired . No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Ev- ery case must be determined upon its own circumstances. When- ever the result last mentioned is produced, the act is within the prohibition of the Constitution, and to that extent void. Bronson ,v. Kinzie, 1 How. 311, 11 L. Ed. 143; McCracken v. Hay ward, 2 '•How. 608, 11 L. Ed. 397. If these doctrines were res integrae the consistency and soundness of the reasoning which maintains a distinction between the con- tract and the remedy — or, to speak more accurately, between the remedy and the other parts of the contract — might perhaps well be doubted. 1 Kent's Commentaries, 456; Sedgwick on Stat, and Cons. Law, 652; Mr. Justice Washington's dissenting opinion in Mason v. Haile, 12 Wheat. 379, 6 L. Ed. 660. But they rest in this court upon a foundation of authority too firm to be shaken; and they are supported by such an array of judicial names that it is hard for the mind not to feel constrained to believe they are cor- rect. The doctrine upon the subject established by the latest ad- judications of this court render the distinction one rather of -form than substance. When the bonds in question were issued, there were laws in force which authorized and required the collection of taxes suffi- cient in amount to meet the interest, as it accrued from time to ■ time, upon the entire debt. But for the act of the 14th of Feb- ruary, 1863, there would be no difficulty in enforcing them. The amount permitted to be collected by that act will be insufficient; and It IS not certam tnat anytni ng will be yielded appl ica ble to that objec t. To the e xtent oi tne aehciency the oblig ation of the con- y t ract will be impai rea, a nd it there be nothing applicable, it may be ^ regarded as annuiieo . A right without a remedy is as if it were • not. I'or every beneficial purpose it may be said not to exist. it is well settled that a state may disable itself by contract from exercising its taxing power in particular cases. New Jersey v. Wil- son, 7 Cranch, 166, 3 L. Ed. 303 ; Dodge v. Woolsey, 18 How. 331, 15 L. Ed. 401 ; Piqua Branch v. Knoop, 16 How. 369, 14 L. Ed. 977. It is equally clear that where a state has authorized a municipal corporation to contract and to exercise the power of local taxation LAWS IMPAIRINO THE OBLIGATIONS OF CONTRACTS 491 to the extent necessary to meet its engagements, the power thus p-iven rannnt he withdrawn until the contract is satisfied . The state and the corporation, in such cases, are equally bound. The power given becomes a trust which the donor cannot annul, and which the donee is bound to execute ; and neither the state nor the corpora- tion can any more impair the obligation of the contract in this way than in any other. People v. Bond, 10 Cal. 570 ; Dominic v. Sayre, 5 N. Y. Super. Ct. 555. The laws requiring taxes to the requisite amount to be collected, in force when the bonds were issued, are still in force for all the purposes of this case. The act of 1863 is, so far as it aftects these bonds, a nullity. It is tEe duty of the city to impose and collecF ^ the taxes in all respects as if that act had not been passed . A difr ferent result would leave nothing of the contract but an abstract - right, of no practical value, and render the protection of the Con- stitution a shadow and a delusion. * * * Judgment reversed. 492 EETEOACTIVB LAWS RETROACTIVE LAWS ^ INHABITANTS OF GOSHEN v. INHABITANTS OP STON- INGTON. (Supreme Court of Errors of Connecticut, 1822. 4 Conn. 209, 10 Am. Dec. 121.) [Motion for new trial. Joseph Cooke was legally settled in the town of Stonington, and in 1807 was marri e d to Betsey Cooke by. an ordained but itinerant minister of the Methodist church . The statute law then in force gave no validity to such marriages unless the minister were settled instead of itinerant. In 1820 a statute purported to render valid to all intents and purposes marriages performed by ordained ministers qualified t he reto by the forms and usages of any religious society. If const itu tional, this stat- ute validated Cooke's marriage, From 1818 to 1820 the town of Goshen had supported Betsey Cooke and five children of herself and Joseph, as paupers, and in 1821 sued to recover the expense thereof from Stonington, which was legally chargeable therewith if said marriage was valid. A verdict was found for the plaintiflfs under a direction of the court upholding the curative statute of 1820, and defendants moved for a new trial.] HosMER, C. J. * * * First, it was said that the retrospec- tive operation of the law may and ought to be obviated by con- struing it to intend the validation of marriages merely, without imparting to it any retrospection as to the rights of others. It must be admitted that by construction, if it can be avoided, no statute should have a retrospect, anterior to the time of its com- mencement. Helmore v. Shuter et al., 2 Show. 17; Dash v. Van Kleeck, 7 Johns. (N. Y.) 477, 485; 5 Am. Dec. 291. This principle is founded on the supposition, that laws are intended to be pros- , pective only. But when a statute, either by explicit provision or necessary implication, is retroactive, there is no room for construc- tion ; and if the law ought not to be effectuated, it must be on a "different principle. The act of May, 1820, is, in its expression, inconvertibly clear and definite. It does not pause, after impart- ing validity to marriages, but confirms them "to all intents and purposes." By this phraseology, they are declared to be valid ab initio. * * * Secondly, it has been insisted, that the law in question is' un- constitutional. There is no pretence that it is opposed to the Con- stitution of the tJnited States ; that is, that the confirmatory act is a_ 1 Tor discussion of principles, see Black, Const. Law (3d Ed.) §§ 295-299. EETEOACTIVE LAWS 493 law ex post fartn. nr one, which impairs the obligation of contracts . By the second article of the Constitution of Connecticut, it is affirmed that "the powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit — those which are legislative, to one; those which are executive, to another; and those which are judicial, to another." The law of May, 1820, has been considered as the ex- ercise of a judiciary power, and for this reason, in contravention of the Constitution ; but the supposition is wholly destitute of sup- port, as the act in question does not afifect to give a construction to the former law, but most manifestly purports to impart validity . to certain proceedings which were erroneously supposed to be legal and which the statute did not authorize. The power ex- ercised, in its nature, is exclusively legislative, and not opposed to the recited articles of the Constitution. Lastly, the defendants have insisted, (and on this objection the principal stress has been laid), that the law of May, 1820, being retrospective and in violation of vested rights, it is the duty of the court to pronounce it void. The retrospection of the act is indisputable, and equally so is its purpose to change the legal rights of the litigating parties. Whether in doing this there has been injustice, will be an enquiry in a subsequent part of my opinion. It is universally admitted and unsusceptible of dispute that there may be retrospective laws impairing vested rights which are unjust, neither according with sound legislation nor the funda- mental principles "of the social compact." If, for example, the legislature should enact a law, without any assignable reason, taking from A. his estate, and giving it to B., the injustice would be flagrant, and the act would produce a sensation of universal insecurity. On the other hand, laws of a retroactive nature affecting the rights of individuals, not adverse to equitable principle and highly ' promotive of the general good, have often been passed, and as often - approved. In the case before us, the defendants have expressly conceded that the law in question is valid, so far as respects the ' persons de facto married and their issue. 'But, in that event, would it not have a retrospective operation on vested rights? The man and woman were unmarried, notwithstanding the formal ceremony which passed between them, and free, in point of law, to live in celibacy, or contract matrimony with any person, at pleasure. It is a strong exercise of power, to compel two persons to marry, without their consent; and a palpable perversion of strict legal right. At the same time, the retrospective law, thus far directly operating on vested rights, is admitted to be unquestionably valid,, because it is manifestly just. 494 BETBOACTIVE LAWS I very much question whether there is an existing government in which laws of a retroactive nature and effect, impairing vested rights but promotive of justice and the general good, have not been passed. In England, such laws frequently have been enacted ; and the act of 26 Geo. II, cap. 32, giving validity to former mar- riages celebrated in any parish church or public chapel, is precisely ■of this description. Doug. 661, note. In the neighboring state of Massachusets ther6 have been many such laws (Foster et al. v. Essex Bank, 16 Mass. from 257 to 261, 8 Am. Dec. 135) ; and the interposition of our own legislature, in similar cases, is familiar to gentlemen of the profession. The judgments of courts, when by accident a term has fallen through, have been established; the do- ings of a committee and conservator, not strictly legal, have been confirmed; and other laws have been passed, all affecting vested rights ; but, being inconfrovertibly just, no disapprobation has ever been expressed. * * * I cannot harmonize with those who deny the power of the legis- lature to make laws in any case, which, with entire justice, operate on antecedent legal rights. A retrospective law may be just and reasonable ; and the right of the legislature to enact one of this d^ scription Jl am not speculatist enough to questioiT ^ * * The act of May, 1820, was intended to quiet controversy and promote the public tranquility. Many marriages had been celebrated, as was believed, according to the prescriptions of the statute. On a close investigation of the subject, under the prompting scrutiny of interest, it was made to appear that there had been an honest misconstruction of the law ; that many unions, which were consid- ered as matrimonial, were really meretricious ; and that the settle- ment of children, in great numbers, was not in the towns of which their fathers were inhabitants, but in different places. To furnish a remedy coextensive with the mischief the legislature have passed an act, confirming the matrimonial engagements supposed to have been formed and giving to them validity as if the existing law had precisely been observed. The act intrinsically imports that the legislature considered the law of May, 1820, to be conformable to justice, and within the sphere of their authority.fi lt was no viola- tion nf t he Constitution g fet was not a novelty ; such exercise qf power having been freq uent, and the subject of universal acquies- ,cence; and no injustice can arise from having given legal efficacy "to voluntary engagements, and from accompanying them with the consequences, which they always impart.^ ^ * New trial deniea.^ [Petbrs, J., thought the act unconstitutional, but concurred in the result on other grounds.] 2 In Mech. Sav. Bank v. Allen, 28 Conn. 97, 102 (1859), In upholding a stat- ute validating certain prior loans where usury had been innocently commit- ted, McCurdy, J., said: "This subject was thoroughly investigated in the EETKOACTIVE LAWS 495 UNITED STATES v. HEINSZEN (1907) 206 U. S. 370, 382, 386, 387, 27 Sup. Ct. 742, 51 L. Ed. 1098, 11 Ann. Cas. 688, Mr. Jus- tice^ White ( upholding^ a federal statute of 1906. ratifying the coir lection of tariff duties illeg-a llv imposed upon imports into the Phil^ ippine Islands between 1899 and 1902, and passed while this suit was pending to recover them as paid under protest ) : ~" "That where an agent, without precedent authority, has exer- cised, in the name of a principal, a power which the principal had the capacity to bestow, the principal may ratify and affirm the un- authorized act, and thus retroactively give it validity when rights oj third persons have not intervened, is so elementary'asTo~nee3 but statement. That the power of ratification as to matters with- in their am-hnrity may hP exercised bv Conp^ress. state govern- ments, or municipal corporations, is also elementary, * * * lilere are discussed Hamilton v. Dillin, 21 Wall. 73, 22 L,. Ed. 528, and Mattingly v. Dist. Columbia, 97 U. S. 687, 24 L,. Ed. 1098.] "It is urged that the ratifying statute cannot be given effect without violating the fifth amendment to the Constitution, since to give efficacy to the act would deprive the claimants of their property without due process of law, or would appropriate the sanie for public use without just compensation. This rests upon these two contentions : It is said that the money paid to discharge the illegally exacted duties after payment, as before, 'justly and equitably belonged' to the claimants, and that the title thereto con- tinued in them as a vested right of property. It is consequently in- sisted that the right to recover the money could not be taken away without violating the fifth amendment, as stated. But here, again, the argument disregards the fact t hat when the dutie s were illegal- ly exacted in the name oi the Un ited tjtates Congress possesse d the power to have authorized tkeir imposition in the mode in which they were enforced, and hence, from the very moment of collection, a right in Congress to ratify the transaction, if it saw fit to do so]^ was engendered . In other words, as a necessary result of the power to ratify, it followed that the right to recover the duties in question was subject to the exercise by Congress of its undoubted power to ratify. * * * case of Goshen v. Stonlngton, 4 Conn. 209, 10 Am. Dec. 121, and the questions now raised were elaborately discussed and were supposed to be settled. The retroactive law objected to in that case was far more extensive in its effects than the statute of 1856. It made husbands and wives of persons who, ex- cept for its provisions, were single. It made children legitimate who were otherwise bastards. It altered settlements, and conferred new rights, and imposed new duties and restrictions upon towns and individuals. It changed lines of descent and deranged rules of property. The principle adopted was, in substance, that when a statute is expressly retroactive, and the object and effect of it is to correct an innocent mistake, remedy a mischief, execute the intention of parties, and promote justice, then, both as a matter of right and of public policy affecting the peace and welfare of the community, th^ law should be sustained." 496 EETROACTIVE LAWS "But if it be conceded that the claim to a return of the moneys paid in discharge of the exacted duties was, in a sense, a vested right, it in principle, as we have already observed, would be but the character of right referred to by Kent in his Commentaries, where, in treating of the validity of statutes retroactively operating on cer- tain classes of rights, it is said (vol. 2, pp. 415, 416) : 'The legal , rights affected in those cases by the statutes were deemed to have been vested subject to the equity existing against them, and which the statutes recognized and enforced. Goshen v. Stonington, 4 Conn. 209, 10 Am. Dec. 121 ; Wilkinson v. Leland, 2 Pet. 627, 7 I.. Ed. 542; Langdon v. Strong, 2 Vt. 234; Watson v. Mercer, 8 Pet. 88, 8 L. Ed. 876; 3 Story, Const. 267.' "Nor does the mere fact that, at the time the ratifying statute -was enacted, this action was pending for the recovery of the sums paid, cause the statute to be repugnant to the Constitution. The mere commencement of the suit did not change the nature of the right. Hence again, if it be conceded that the capacity to prosecute the pending suit to judgment was, in a sense, a vested right, cer- tainly also the power of the United States to ratify was, to say the least, a right of as high a character. * * * "Considering how far the bringing of actions would operate to deprive government of the power to enact curative statutes which, if the actions had not been brought, would have been unquestion- ably valid, Cooley, in his Constitutional Limitations, says (7th Ed. p. 543) : * * * ' The bringing of suit vests in a party no righ t to a particular decision, and his case must be determined on the la-t^ as It sta nds, not when the suit was brought, but when the judg- m ent IS rendered ?^ [ErEwbe and Peckham, JJ., dissented. Moody, J., did not sit. Harlan, J., concurred solely on the ground that the ratifying act should be construed as withdrawing the consent of the United States to be sued in the Court of Claims for said duties paid under protest, leaving the personal liability of the collector to be deter- mined.] APPENDIX [CONSTITUTION OF THE UNITED STATES OF AMERICA]* We the People of the United States, In Order to form a more perfect Union, establisli Justice, Insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. ARTICLE. I. Section. 1. All legislative Powers herein granted shall be vested in a Con- gress of the United States, which shall consist of a Senate and House of Rep- resentatives. Section. 2. [1.] The House of Representatives shall be' composed of Mem- bers chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. [2.] No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of the State in which he shall be chosen. [3.] Representatives and direct Taxes shall be apportioned among the sev- eral States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Num- ber of free Persons, Including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.2 The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Maimer as they shall by Law direct. The Number of Repre- 1 This copy ol the Constitution (through Amendment XV) is reprinted from American History Leaflet No. 8, published by Parker P. Simmons, New York City. It was prepare J by Professors Albert B. Hart and Edward Channing, of Harvard University; and is stated to be the result of a careful pomparison with the original manuscripts of the Constitution and Amendments on February 10, 11, 1893, and to be Intended to be absolutely exact in word, spelling, capitalization, and punctuation. It is here used by permission of the edi- tors and publisher. One error in spelling and one in paragraphing have been corrected by a comparison with the fac-simile text of the Constitution published, in Carson's History of the Celebration of the 100th Anniversary of the Constitution, and the signatures of the signers have also been corrected by this text. Three of the editors' original notes are re- tained, marked "Ed." The other notes are by the editor of this Casebook. The words and figures inclosed in brackets do not appear in the original manuscripts and are inserted for convenience of reference, most of them being thus used In Leaflet No. 8. The text of Amendments XVI and XVII has been taken from the official certifications of adoption is- sued by Secretaries of State Knox and Bryan on February 25, 1913, and on May 31, 1913. 2 Superseded by Amend. XIV, [§ 2}.— Ed. Hall Oases Const.L.— 32 (497) 498 APPENDIX — U. S. CONSTITUTION sentatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative ; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massa- chusetts eight, Khode-Island and Providence Plantations one, Connecticut five. New- York six, New Jersey four, Pennsylvania eight, Delaware one, Mary- land six, Virginia ten. North Carolina five, South Carolina five, and Georgia three. [4.] When vacancies happen In the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacan- cies. [5.] The House of Representatives shall chuse their Speaker and other Offi- cers ; and shall have the sole Power of Impeachment. Section. 3. [1.] The Senate of the Pnited States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years ; and each Senator shall have one Vote.s [2.] Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Execu- tive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. [3.] No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. [4.] The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. [5.] The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. [6.] The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. [7.] Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Pun- ishment, according to Law. Section. 4. [1.] The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legis- lature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. [2.] The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. Section. 5. [1.] Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall consti- tute a Quorum to do Business ; but a smaller Number may adjourn from day to day, and may be authorized to compel the attendance of absent Members, in such Manner, and under such Penalties as each House may provide. 3 Superseded by Amend. XVII. APPENDIX — U. 8. CONSTITUTION 499 [2.] Eacb House may determine the Rules of Its Proceedings, punish its Members for Disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. [3.] Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Teas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. [4.] Neither House, during the Session of Congress, shall, without the Con- sent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. Section. 6. [1.] The Senators and Representatives shall receive a Compensa- tion for their Services, to be ascertained by Law, and paid out of the Treas- ury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate In either House, they shall not be questioned in any other Place. [2.] No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a member of either House during Ms Continuance in Office. Section. 7. [1.] All Bills for raising Revenue shall originate in the House of Representatives ; but the Senate may propose or concur with Amendments as on other Bills. [2.] Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Lfaw, be presented to the President of the United States ; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to recon- sider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, It shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the same shall be a Law, In like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. [3.] Every Order, Resolution, or Vote to which the Concurrence of the Sen- ate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States ; and before the same shall take Effect, shall be approved by him, or being disap- proved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. Section. 8. The Congress shall have Power [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 ; 500 APPENDIX — U. S. CONSTITUTION [3.] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; [4.] To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies 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 OflSces and post Roads; [8.] To promote the Progress of Science and useful Arts, hy securing for limited Times to Authors and Inventors the exclusive Right to their respec- tive Writings and Discoveries ; [9.] To constitute Tribunals inferior to the supreme Court ; [10.] To define and punish Piracies and Felonies committed on the high Seas, and Offences against the law of Nations ; [11.] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water ; [12.] To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years ; [13.] To provide and maintain a Navy; , [14.] To make Rules for the Government and Regulation of the land and naval Forces; [15.] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions ; [16.] To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Oflicers, and the Authority of training the Militia according to the discipline prescribed by Congress ; [17.] To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings ; — And [18.] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or OflBcer thereof. Section. 9. [1.] The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. [2.] The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may re- quire it. [3.] No Bill of Attainder or ex post facto Law shall be passed. [4.] No Capitation, or other direct. Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. [5.] No Tax or Duty shall be laid on Articles exported from any State. [6.] No Preference shall be given by any Regulation of Commerce or Rev- enue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obligee! to enter, clear or pay Duties in another. [7.] No Money shall be drawn from the Treasury, but in Consequence of APPENDIX — U. S. CONSTITUTION 501 Appropriations made by Law ; and a regular Statement and Account of the Itecelpts and Expenditures of all public Money shall be published from time to time. [8.] No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. Section. 10. [1.] No State shall enter into any Treaty, Alliance, or Confed- eration ; grant Letters of Marque and Reprisal ; coin Money ; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts ; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligations of Contracts or grant any Title of Nobility. [2.] No State shall, without the Consent of the Congress, lay any Imposts or Duties on 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 Bxiwrts, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress. [3.] No State shall, without the Consent of Congress, lay any Duty of Ton- nage, 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. ARTICLE. II. Section. 1. [1.] The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with. the Vice President, chosen for the same Term, be elected, as follows [2.] Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress : but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. [3.] The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Major- ity of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President ; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote ; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Elec- tors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice Presi- dent.* 4 Superseded by Amend. XU.—E4. 502 APPENDIX — U. 8. CONSTITUTION [4.] The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. [5.] No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. [6.] In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation, or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and ^uch Officer shall act accordingly, until the Disability be removed, or a President shall be elected. [7.] The President shall, at stated Times, receive for his Services, a Com- pensation, which shall neither be encreased nor diminished during the Period for which he shall have been 'elected, and he shall not receive vyithin that Period any other Emolument from the United States, or any of them. [8.] Before he enter on the Execution of his Office, he shall take the fol- lowing Oath or Affirmation: — "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Section. 2. [1.] The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the Several States, when called into the actual Service of the United States ; he may require the Opin- ion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. [2.] He shall have Power, by and with the Advice and Consent of the Sen- ate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Sen- ate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be estab- lished by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. [3.] The President shall have Power to fill up all Vacancies that may hap- pen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. Section. 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Meas- ures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagree- ment between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper ; he shall receive Ambas- sadors and other public Ministers ; he shall take Care that the Laws be faith- fully executed, and shall Commission all the Officers of the United States. Section. 4. The President. Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Convic- tion of, Treason, Bribery, or other high Crimes and Misdemeanors. APPENDIX — U. S. CONSTITUTION 503 ARTICLE. III. Section. 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and in- ferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. Section. 2. [1.] The judicial Power shall extent to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction ; — to Controversies to which the United States shall be a Party ; — to Controversies between two or more States ; — between a State and Citizens of another State; 5 — between Citizens of differ- ent States, — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. [2.] In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have orig- inal Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Excep- tions, and under such Regulations as the Congress shall make. [3.] The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury ; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Section. 3. [1.] Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testi- mony of two Witnesses to the same overt Act, or on Confession in open Court. [2.] The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. ARTICLE. IV. Section. 1. Full Faith and Credit shall be given In each State to the pub- lic Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Section. 2. [1.] The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. [2.] A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. [3.] No Person held to Service "or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regula- tion therein, be discharged from such Service or Labour, but shall be de- livered up on Claim of the Party to whom such Service or Labour may be due. Section. 3. [1.] New States may be admitted by the Congress into this Un- ion ; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. s See Amend. XI. 504 APPENDIX — U. S. CONSTITUTION [2.] The Congress shall have Power to dispose of and make aU needful Rules and Regulations respecting the Territory or other Property belonging to the United States ; and nothing in ):his Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. Section. 4. The United States shall guarantee to every State in this Un- ion a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence, ARTICLE, y. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Con- gress; Provided that no Amendment which may be made prior to the Tear One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses In the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. ARTICLE. VI. [1.] All Debts contracted and Engagements entered into, before the Adop- tion of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. [2.] This Constitution, and the Laws of the United States whieh shall be made in Pursuance thereof; and aU Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land ; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [3.] The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial OflBcers, both of the United States and of the several States, shall be bound by Oath or Afiirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Oflace or public Trust under the United States. ARTICLE. VII. The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.8 done In Convention by the Unanimous Consent of the [Note of the draughtsman States present the Seventeenth Day of September in the as to interlineations in the Year of our Lord one thousand seven hundred and text of the manuscript.] Eighty seven and of the Independence of the United Attest States of America the Twelfth In Witness whereof William Jackson We have hereunto subscribed our names. Secretary. Go WASHINGTON— , Presidt and deputy from Virginia. [Here follow the names of 38 deputies representing all of the 13 states ex- cept Rhode Islafid.] 6 The states ratified the Constitution In the following order: Delaware December 7,1787 South Carolina MaY 23,1788 Pennsylvania December 12, 1787 New Hampshire June 21, 1788 New Jersey December 18,1787 Virginia June 26,1788 Georgia January 2,1788 New York July 26,1788 Connecticut January 9, 1788 North Carolina November 21, 1789 Massachusetts February 6, 1788 Rhode Island May 29, 1790 Maryland April 26, 1788 By an act of September 13, 1788, the Congress of the Confederation appointed the first Wednesday in January next for the appointment of presidential electors in the states that APPENDIX — U. 8. CONSTITUTION 505 AETICI/ES in addition to and Amendment of tlie Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Artide of the original Constitu- tlon.T [ARTICLE I.]' Congress shall make no law respecting an establishment of religion, or pro- hibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [ARTICLE II.] A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. [ARTICLE III.] No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. [ARTICLE IV.] The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or af- firmation, and particularly describing the place to be searched, and the per- sons or things to be seized. [ARTICLE v.] No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or Umb ; nor shall be com- pelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [ARTICLE VI.] In all criminal prosecutions the accused shaU enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the ac- cusation ; to be confronted with the witnesses against him ; to have compul- sory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. had by then ratified the Constitution; the first Wednesday In February for the electors to assemble and vote for president; and the first Wednesday In March for commencing pro- ceedings under the Constitution. On the latter date, March 4, 1789, the Constitution became legally operative, Owlngs v. Speed, 5 Wheat. 420, IS L. Ed. 124 (1820); though In fact the House of Representatives did not assemble, for want of a quorum, until April 1, and the Senate not until April 6; and President Washington was not inaugurated until April 3D. T This heading i4>pears only In the joint resolution submitting the first ten amendments [1 Stat. 97].— B