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C5855e HANDBOOK OF AMERICAN CONSTITUTIONAL LAW BY HENRY CAMPBELL gLACK, M.A. AOTHOR OF BLACK'S LAW DICTIONARY AND OF TREATISES ON JUDGMENTS, TAX TITLES, INTOXICATING LIQUORS, BANKRUPTCY, MORTGAGES, CONSTITUTIONAL PROHIBITIONS. INTERPRETATIOK OF LAWS, ETC. THIRD EDITION ST. PAUL, MINN. WEST PUBLISHING COMPANY 1910 COPTBIGHT, 1895 BY WEST PUBLISHING COMPANX Copyright, 1807 BY WEST PUBLISHING COMPANY COPYBIGHT, 1910 BY WEST PUBLISHING COMPANY PREFACE TO THE THIRD EDITION. The period of twelve years which has elapsed since the publication of the, second edition of this book has witnessed extremely important de- velopments in American constitutional law. This has resulted not so much from the evolution of new principles as from the necessity of applying old and well-established rules to new forms of legislatioii. The social and economic history of a people is reflected in its laws; and it must be evident to; the .jrip?t c;asual observer of contemporary events that the increasing 'compi^piiite^ of our social and industrial life, the development of new forms df busInesS-and of commercial organiza- tion, the multiplication of the agencies of government, and the expan- sion of national influence at home and abroad, have brought forth an abundant harvest of new statutes, some of them wise and salutary, some experimental, many partial and invidious, but all to be brought to the ultimate test of constitutional validity under the calm scrutiny of the courts. The student of constitutional law will not fail to note the marked and increasing tendency of modern times to delegate subordinate legisla- tive functions, as well as executive authority, to boards, commissions, and administrative officers. Nor can he overlook the highly significant tendency of law-making bodies to encroach more and more upon the limits of individual liberty, by constant extensions of the police power to new subjects or new boundaries, and their growing disposition to interfere with the natural evolution of business and industry and to restrict and regulate all manner of trades and occupations. The whole body of statutes against "trusts" and monopolies, though resting on foundations laid deep in the common law, is the product of recent years ; and the activity of legislatures in enacting, and of executive offi- cers in enforcing, laws of this character is a phenomenon of great interest alike to the publicist and to the constitutional lawyer. The same remark applies to the notable tendency to make new and more minute regulations for the operation, the public relations, and the taxation of railroads and other public-service corporations of every sort. Nor can we omit to note, among the legislative incidents of the last few years, the many enactments relating to capital and labor, in the direction of employers' liability acts, statutes regulating the hours of labor, and. many other cognate subjects, as well as the highly im- (V) VI PREFACE. portant recent discussions of strikes and boycotts and the subject of organized labor as a "trust." Moreover, njany novel and interesting questions have grown out of the acquisition by the United States of insular possessions beyond the seas ; and the boundaries of federal and state authority in respect to many of the subjects above mentioned have been the theme of earnest and even partisan controversy. The author has been profoundly interested in these matters, and has endeaADred, in this edition of his book, to give them an exhausj:ive and critical consideration, citing all the best available authorities. He has also subjected the entire work to a thorough revision and added to it a very great number of the more recent decisions, supplementary to those already included, bearing upon its various topics and principles. That the book may prove equally interesting to the students and prac- titioners of the law, and that it may now enter upon a new and more widely extended career of usefulness, is his earnest hope, in which he is encouraged by the very gratifying measure of favor and applause with which this and his other contributions to the literature of the law have been received by the profession. H. C. B. Washington, D. C, April 1, 1910. NOTICE BY THE PUBLISHERS. Mention should here be made of a new form of service now, for the first time, introduced in the Hornbook Series (by the publishers), i. e., the "Key-Number Annotations." Throughout this volume, in connec- tion with each cited case references are given to the title and section number under which the several legal propositions are placed in the Decennial Digest and its continuations (the "Key-Number Series"). As a uniform system of classification and section numbering is now followed throughout the National Reporter System and the American Digest System, these "Key-Number" references make it practicable for the reader to find other decisions on the same point, almost mechan- . ically, not only in the Century and Decennial Digests, but in the cur- rent issues of the American Digest and in the bound volume and adr vance sheet indexes of the Reporter System. Thus, every proposition of law in this volume to which a case has been cited is directly related to the whole line of pertinent authorities, past and future, and, by means of the "Key Numbers," may be kept constantly up to date with- out the labor of topical search. PREFACE TO THE FIRST EDITION. This book is intended primarily for the use of students at law and instructors in the law schools and universities. It contains a con- densed review of all the leading principles and settled doctrines of American constitutional law, whether arising under the federal con- stitution or those of the individual states. These principles and doc- trines are stated in the form of a series of brief rules, or proposi- tions, numbered consecutively throughout the book, and are explained, amplified, and illustrated in the subsidiary text^ and supported by the citation of pertinent authorities. The necessary limitation of space, as well as the purpose and plan of the work, have precluded any at- tempt at e:^haustive discussion or minute elaboration of the great top- ics of constitutional law. But the book is believed to be comprehensive of the general subject and sufficiently detailed to equip the student with an accurate general knowledge of the whole field. And since the solution of new questions must be sought, not alone in the applica- tion of precedents, but also in the settled rules and the accepted can- ons of interpretation, and since the mind is often best prepared for the investigation of a specific problem by a rapid synoptical review of the results already worked out by the courts in that department to which it belongs, it is hoped that general practitioners may find the book to possess a special value for themselves. It would have been undesira- ble, even if it were possible, to discuss in these pages all the thousands of reported cases which bear upon the subject of constitutional law. Such an accumulation of authorities would have cumbered the work to the point of destroying its utility. But a very considerable number of the more important and valuable decisions have been suitably referred to, and more, perhaps, than any student would have time or occasion to read. But it was thought that both student and practitioner would appreciate the advantage of being directed to the principal authorities, especially as they may have occasion to study certain special topics with more detail and particularity^ than the handbook itself could un- dertake. The subject of constitutional law is not free from disputed and un- settled questions. In respect to these, the author has invariably stated (vli) Viii PREFACE what he conceives to be the sound rule or the best principle for their interpretation. If his disposition of such topics should at times ap- pear summary, or even dogmatic, it must be ascribed to the necessity for cortdensation, not to any failure to appreciate the possible argu- ments on both sides of the question. H. C. B. Washington, D. C, January, 1895. TABLE OF CONTENTS. CHAPTER I. DEFINITIONS AND GENERAL PRINCIPLES. Section . Page 1. Constitutional Law Defined 1 2-3. Constitution Defined 1-4 4. Meaning of "Constitutional" and "Unconstitutional" 4-5 5. Written and Unwritten Constitutions 5-7 6. Constitutions Not the Source of Rights .' 7-9 7. Bills of Rights 9-10 8. Right of Revolution 10-11 9. Political and Personal Responsibility 11-14 CHAPTER n. THE UNITED STATES AND THE STATES. 10-11. Nature of the American Union 15-22 12. Sovereignty and Rights of the States 22-30 13. Sovereignty of the People 30 14. Form of Government in the United States 31-32 15. The Union Indestructible 32-33 16. Nature of the Federal Constitution 33-34 17. The Constitution as a Grant of Powers 35-36 18. The Constitution as the Supreme Law 36-37 CHAPTER m. ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS. 19. Government, of the Colonies 38-39 20. The Continental Congress and the Articles of Confedera- tion 40-43 21. Establishment of the Federal ■Constitution 43-45 22-24. Amendment of the Federal Constitution 45-48 25-27« Establishment of State Constitutions 48-49 28-29. Amendment of State Constitutions 49-54 Bl.Const.L.(3dEd.) (ix) TABLE OF CONTENTS. CHAPTEE IV. CONSTRUCTION AND INTERPRETATION OP CONSTITUTIONS. Section ... Page 30. Office and Duty of the Judiciary 55 31. Adjudging: Unconstitutionality 5(5-00 32. The Court 60-62 33. Full Bench 62-«3 34. Nature of the Litigation 63 35. Parties Interested 63-65 36. Necessity of Decision 65-66 37. Construction 66-67 38. Executive Construction 67 39. Presumption of Legality C8 40. Eefereuce to Journals of Legislature 69 41. Motives of Legislature .■ CO 42. Policy of liegislation 70-71 43. Natural Justice 72-73 44. Partial Unconstitutionality 73-74 45. Preamble • • 74 46. Effect of Decision 75 47. Construction of Constitutions — Method 75-76 48-49. Intent to be Sought T6-81 CHAPTER V. THE THREE DEPARTMENTS OP GOVERNMENT. 50. Classification of Governmental Powers 82 51. Separation of Governmental Powers 83-85 52-53. The Separation not Absolute 85 54. Limitations on the Three Departments of Government '85-96 55. Administrative Boards, Officers, and Commissions 96-99 56. Political Questions 100-102 57. Advisory Opinions by the Courts 103-104 CHAPTER VI. THE PEDERAL EXECUTIVE. 58. The President.......^.... 105- 59. The Vice-President ,.., 103 OO76I. Election of President and Vice-President 105-lOS B2. Qualifications of President 108 63. Vacancy in Office of President 108-10& 64. Compensation of President 109-110 65. Oath of Office of President 110' TABLE OF CONTENTS. XI Section Page 66. Independence of the Executive .- 111-1]2 67-68. Veto Power of President 112-114 69. Military Powers of President 114-117 70-73. The Cabinet ; 117-121 74. Pardoning Power 121-122 75-76. The Treaty-Making Power 122-126 77-78. Appointments to Office 127-131 79. Presidential Messages Ici2 80. Convening and Adjourning Congress 132-133 81. Diplomatic Relations 133-134 82. Execution of the Laws 134-136 83-85. Impeachment 136-139 CHAPTER Vn. FEDERAL JURISDICTION. 86-88. Courts of the United States 140-345 89. Judicial Power of the United States 146-100 90. United States as a Party 166-168 91. States as Parties : 168-174 92-93. Jurisdiction of Supreme Court. 175-179 94-97. Powers and Procedure of Federal Courts , 180-192 98. Removal of Causes 193-103 CHAPTER Vm. THE POWERS OF CONGRESS. 99. Constitution of Congress 190-198 100-101. Organization and Gov'crnment of Congress 198-202 102. Powers of Congress Delegated.' 202-203 103-104. Exclusive and Concurrent Powers 203-205 105. Enumerated Powers of Congress 205-284 106. Implied Powers. 284-286 107. Limitations on Powers of Congress 287-290 CHAPTER IX. INT'ERSTATE LAW AS DETERMINED BX THE CONSTITUTION. 108-110. General Principles 291 111. Privileges of Citizens 292-296 112. Public Acts and Judicial Proceedings 296-300 113-116. Interstate Extradition 300-308 xu TABLE OF CONTENTS. CHAPTER X. THE ESTABLISHMENT OF REPUBLICAN GOVERNMENT. Section Pas« 117-119. .Republican Government Guarantied 309-313 120. .Reconstruction **1^ CHAPTER XI. EXECUTIVE POWER IN THE STATES. 121-123. State Executive Officers 314-318 124-125. Independence of Executive 318-319 126. Powers of Governor 320-329 127. 128. 129. 130-131. 132-134. 135. CHAPTER Xn. JUDICIAL POWERS IN THE STATES. System of Courts 330-332 Constitutional Courts 332-334 Statutory Courts 334-335 Judges 336 Jurisdiction 337-339 Process and Procedure S39-340 CHAPTER XTTT. LEGISLATIVE POWER IN THE STATES. 13G. Organization and Government of Legislature 341-351 137. Legislative Power of States in General. 351-352 138-140. Limitations Imposed by the Federal Constitution 353-361 141. Implied Limitations in State Constitutions 382-369 142. Private, Special, and Local Legislation ^ . 369-373 143-144. Delegation of Legislative Powers 373-378 145-146. Enactment of Laws 378-382 147-149. Title and Subject-Matter of Statutes 382-386 CHAPTER XIV. THE POLICE POWER. 150.. Definition and General Considerations 387-389 151. . Police Power Inalienable ' 389 152. Scope of the Power 389-390 TABLE OF CONTENTS. XllI Section Page 153. Location of the Police Power 391 154. Police Power Vested In Congress 391-304 155. Police Power of the States 394-434 156. Limitations of the Police Power 434-440 CHAPTER XV. THE POWER OF TAXATION. 157-158. General Considerations 441-444 159. Independence of Federal and State Governments 444-451 16D. Limitations Imposed by Federal Constitution 451-452 lCl-162. Limitations Imposed by State Constitutions 452-454 163-lBa. Purposes of Taxation 454r-459+- 165^166. Equality and Uniformity in Taxation 459-464 167-169. Double Taxation 464-466 170. Taxation and Eepresentation 466-467 171. Taxation Under the Police Power 467 CHAPTER XVI. THE RIGHT OF EMINENT DOMAIN. 172. Definition and. Nature of the Power 468-470 173. Constitutional Provisions 470-471 174. By Whom the Power is Exercised 471-473 175. Legislative Authority Necessary 474 176. Strict Construction of Statutes 475-476 177-179. The Purpose must be Public 476-481 ISO. What Property may be Taken 482-487 181. Appropriation to. New Uses 487-489 182. The Taking 489-492 183. Consequential Injuries 493-495 184. Compensation 495-503 CHAPTER XVn. MUNICIPAL CORPORATIONS. 185. Local Self-Goverument 504-506 186-187. Nature of Municipal Corporations '. 506-507 188. Power to Create Municipal Corporations 507-510 189. Legislative Control of Municipal Corporations 510-512 190. Debts and Revenue 512-513 191-192. OflBcers of Municipalities 513-514 193. Powers of- Municipal Corporations 514-516 194-196. By-Laws of Municipal Corporatiohs 517-521 XlV TABLE OF CONTENTS. CHAPTER XVm. CIVIL RIGHTS AND THEIR PROTECTION BY THE CONSTITUTIONS. Section Page 197-198. Rights in General '. 522-525 199. Of Liberty 525-527 200-202. Religious Liberty.' 527-535 203-205. Personal Liberty 535-540 20C. Abolition of' Slavery • 540-542 207. Right to Bear Arms 543 208. The Pursuit of Happiness 544 209. . Equal Protection of the Laws 544^558 210-212. . Right to Choose Occupation 558-566 21S. Freedom of Contract 566-567 214. Marriage and Divorce 567-568 215. Sumptuary Laws 568 216. Education 568-5-70 217. . Due Process of Law 570-579 218-221. In Revenue and Tax Proceedings 580-585 222. In Eminent Domain Proceedings 585-587 223. In Judicial Action 587-595 224. In Administrative Proceedings. 595-596 225. Protection of Vested Rights '. 596-606 220-227. Searches and Seizures 606-616 228. Quartering of Soldiers 616 229. Right to Obtain Justice Freely 617-618 230-233. Trial by Jury 618-630 CHAPTER XIX. POLITICAL AND PUBLIC RIGHTS. 234-239. Citizenship ; 631-G38 240. Double Citizenship in the United States 038-640 241. Privileges of Citizens of the United States 040-643 242-244. The Right of Suffrage 044-650 245. Freedom of Speech and of the Press 650-654 246. Criticisms of Government 054-658 247. Censorship of the Press 0.58-659 248-252. Privileged Communications 059-668 253. The Right of Assembly and Petition 0G8-672 254. Disfranchisement ', 072-675 CHAPTER XX. CONSTITUTIONAL GUARANTIES JN CRIMINAL CASES. 255-236. Provisions In the Constitutions 676-679 257. Presentment or Indictment 679-682 TABLE OF CONTENTS. XV Section Pago 258-259. Trial by Jury 083-680 260. Privilege agaiust Self-Criminating Evidence 686-090 261. Confronting with Witnesses 090-692 262. Compelling Attendance of Witnesses 092-093 263. Bight to be Present at Trial 693-694 264. Assistance of Counsel 694-696 265. Right to be Heard 096-697 266. Speedy and Public Trial 097-698 267-269. Twice in Jeopardy 699-704 270. Bail '. 704-706 271. Cruel and Unusual Punishments 706-708 272. Bills of Attainder 708-709 273. Ex Post Facto Laws 709-715 274. Suspension of Habeas Corpus 715-716 275-277. Definition of Treason 716-718 278. Corruption of Blood and Forfeiture 718-719 CHAFTEB XXI. LAWS IMPAIRING THE OBLIGATION OF CONTRACTS. 279. Constitutional Provisions 720-721 280. The Law Impairing the Contract 721-722 281. The Obligation 722-723 282. The Impairment of the Contract '723-725 283-285. What Contracts are Protected, 725-736 286. Limitations on Power of Legislature to Contract 736-738 287-291. Charters as Contracts 738-744 292-293. Exemption from Taxation 744^-745 294. Laws Affecting Remedies on Contracts 746-751 CHAPTER XXII. RETROACTIVE LAWS, 295. Validity of Retroactive Statutes 752-753 296. Retroactive Effect Avoided by Construction 754 297. Curative Statutes 754-756 298. Statutes Curing Administrative Attion 757-759 299. Curing Defective Judicial Proceedings 759-760 THE CONSTITUTION UNITED STATES OF AMERICA. We the Peoplb of the TTnited States, In Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common de- fence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordam and establish this Constitution for the United States of America. ARTICLE I. Section 1. All legislative Powers herein granted shall be vested In a Congress of the United States, which shall consist of a Senate and House of Representatives. Section 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Elect- ors In each State shall have the Qualifications requisite for Electors of the most numerous Branch 6f the State Legislature. No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State In which he shall be chosen. Representatives and direct Taxes shall be apportioned among the several States which may be Included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, In such Manner as they shall by Law direct. The Number of Representatives 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, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New Yorls six. New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Vir- ginia ten, North Carolina five. South Carolina five, and Georgia three. When vacancies happen In the Representation from any State, the Execu- tive Authority thereof shall issue Writs of Election to fill such Vacancies. Bl.Oonst.L.(3d Ed.)— b (xrli) Xviii CONSTITUTION OF THE UNITED STATES. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. Section 3. The Senate of the United States shall be composed of two Sen- ators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. 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 fomth 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 Iiegislature of any State, the Executive thereof may make temporary Appointments, until tixe next Meeting of the Legislature, which shall then fill such Vacancies. No Person shall be a Senator who shall not have attained to the Age of 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. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a President pro tem- pore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. The Senate shall have the sole Power to try 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. Judgment In Cases of Impeachment shall not extend further than to re- moval from Office, and disqualification to hold and enjoy atiy Office of honor, Trust or Profit under the United States: but the Party convicted shall never- theless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Section 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. Section 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Mem- bers for disorderly Behaviour, and, with the Concm-rence of two thirds, expel a Member. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment re- quire Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the desire of one fifth of those Freseut, be entered on the Journal, CONSTITUTION OF THE UNITED STATES. XIX Neither House, during the Session of Congress, shall, without the Consent 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. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all 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. No Senator or Representative shall, during the Time for which he was elect- ed, be appointed to any civil Office under the Authority of the United States, which shall have 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 his Continuance in Office. Section 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senatte may propose or concur with Amendments as on other Bills. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who sTiall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be 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. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Ad- journment) shall be presented to the President of the United States; and be- fore the Same shall take Effect, shall be approved by him, or being disap- proved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to tbe Rules and Limitations prescribed in the Case of a Bill. Section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with, the Indian Tribes ; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; XX CONSTITUTION OF THE UNITED STATES. To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writ- ings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and OfCences against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline pre- scribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such Dis- trict (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;— And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Consti- tution in the Government of the United States, or in any Department or Of- ficer thereof. Section 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be Imposed on such Importation, not exceeding ten dollars for each Person. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct. Tax shall be laid, unless In Proportion to the Census or Enumeration hei'ein before directed to be taken. No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. No Money shall be drawn from the Treasury, but in Consequence of Ap- propriations made by Law; and a regular Statement and Account of the Re- ceipts and Expenditures of all public Money shall be published from time to time. CONSTITUTION OF THE UNITED STATES. ^^' No Title of Nobility shall be granted by the United States: And no Person holding any OiHce of Profit or Trust under them shall, without the Consent of the Congress, accept of any in-esent, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. Section 10. No State shall enter into any Treaty, Alliance, or Confedera- tion; grant Letters of Marque and Eeprisal; 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 Obligation of Contracts, or grant any Title of Nobility. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for ex- ecuting its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Conti-oul of the Congress. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage In War, unless actually invaded, or in' such imminent Danger as will not admit of delay. ARTICLE IL Section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows Each State shall appoint, In such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and 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. The electors shall meet in their respective States, and vote by ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Cer- tificates, and the Votes shall then be coimted. The Person having the great- est Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall Immediately chuse by Ballot one of them for Presi- ident; and if no Person have a Majority, then from the five highest on the List tie said House shall in lilte Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from «ach State having one Vote; A quorum for this Purpose shall consist of a Alember 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 Electors shall be the Vice President. But if there should remaia two or more who XXii CONSTITUTION OF THE UNITED- STATES. have equal Votes, the Senate shall chuse from them by Ballot the Vice Presi- dent. 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. 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 Kesident within the United States. In Case of the Removal of the President from Office, or of his Death, Resig- nation, or Inability to discharge the Powers and 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 such Officer shall act accordingly, until the Disability be re- moved, or a President shall be elected. The President shall, at stated Times, receive for his Services, a Compen- sation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:— "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. 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- Opinion, in writing, of the principal Officer in each of the executive De- partments, upon any Subject relating to the Duties of their respective Of- fices, and he shall have Power to grant Reprieves and Pardons for OfCence» against the United States, except in Oases of Impeachment. * He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he- shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the su- preme Court, and all other Officers of the United States, whose Appoint- ments are not herein otherwise provided for, and which shall be estab- lished by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happens during the Recess of the Senate, by granting Commissions which shall ex- pire 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 Measures- as he shall judge necessary and expedient; he may, on extraordinary Occa- sions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors- and other public Ministers; he shall take Care that the Laws be faithfulljr executed, and shall Commission aU the Officers of the United States. CONSTITUTION OF THE UNITED STATES. XXllI Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. 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 inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be dimin- ished during their Continuance in Office. Section 2. The judicial Power shall extend to all Cases, In Law and Eq- uity, 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 pai-ty;— to Controversies between ^wo or more States;— between a State and Citizens of another State;— between Citizens of differ- ent States, — between Citizens of the same State claiming Lands under drants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all , Cases affecting Ambassadors, other public Ministers and Consuls, and those In which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the su- preme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and imder such Regulations as the Congress shall malie. 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. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or bn Confession In open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture ex- cept during the Life of the Person attainted. ARTICLE IV. Section 1\ Full Faith and Credit shall be given la each State to the public Acts, Records, and judicial Proceedings of every other State. And the Con- gress may by general Laws prescribe the Manner in which such Acts, Rec- ords and Proceedings shall be proved, and the Effect thereof. Section 2. The Citizens of each State shaU be entitled to all Privileges and Immunities of Citizens in the several States. 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 XXiV CONSTITUTION OF THE UNITED STATES. the executive Authority of the State from which he fled, he delivered up, to be removed to the State having Jurisdiction of the Crime. No Person held to Service or I^abour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Kegulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. Section 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States con- cerned as well as of the Congress. The Congress shall have Power to dispose of and make all needful Rules and Kegulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against In- vasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. ARTICLE V. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall he valid to all Intents and I^urposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that Qo State, without its Consent, shall be deprived of its equal Suffrage in the Senate. ARTICLE VI. All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, \mder 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 Con- stitution or Laws of any State to the Contrary notwithstanding. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Af- firmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Otfice or public Trust under the United States. CONSTITUTION OF THE UNITED STATES. X^T 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. Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth. In Witness whereof We have hereunto subscribed our Names. [Signed by GEORGE WASHINGTON, as President and Deputy from Vir- ginia, and by delegates from all the original states except Rhode Island.] ABTICLES IN ADDITION TO AND AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA, PROPOSED BY CONGRESS AND RATI- FIED BY THE LEGISLATURES OF THE SEVERAL STATES, PURSUANT TO THE FIFTH ARTICLE OF THE CONSTITUTION. 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 gi-ievances. 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 affirmation, and particularly describing the place to be searched, and the persons or things to be seized. XXVI CONSTITUTION OF THE UNITED STATES. 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 limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor be de- prived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. ARTICLE VL In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the ac- cusation; to be confronted with the witnesses against him; to have com- pulsory process for obtaining Witnesses in his favor, and to have the Assist- ance of Counsel for his defence. ARTICLE VII. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. ARTICLE VIIL Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. ARTICLE IX. The enumeration ■ in the Constitution, of certain rights, shall not be con- strued to deny or disparage others retained by the people. ARTICLE X The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. CONSTITUTION OF THE TJNITI;D STATES. XXVll ARTICLE XI. Tlie Judicial power of the United States shall not be construed to extend to any suit at law or ei.iuity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. ARTICLE XII. The Electors shall meet in their respective states, and vote by ballot for President and Vice President, one of whom, at least, shall not be an in- habitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice President, and of the number of votes for each, which lists they shall sign and certify, and trans- mit 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 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 for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such ma- jority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for th's 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. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice President shall act as president, as in the case of the death or other constitutional disability of the President. The person having the greatest nurnber of votes as Vice President, shall be the Vice President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally Ineligible to the office of Presi- dent shall be eligible to that of Vice President of the United States. ARTICLE XIII. Section 1. Neither slavery nor involuntary servitude, except as a punish- ment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation. XXViii CONSTITDTION OF THE UNITED STATES. ARTICLE XIV. Section 1. All persons born or naturalized in the United States, and sub- ject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State sh.all 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. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being .twenty-one years of age, and citizens of the United States, or in any way abridged, except for par- ticipation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3. No person shall be a Senator or Representative in Congress, or elector of President or Vice President, or hold any office, civil or military, under the United States, or under any State, vflno, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in Insurrection or rebellion against the same, or given aid or com- fort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts Incurred for payment of pensions and bounties for services in suppressing Insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legis- lation, the provisions of this article. ARTICLE XV. Section l.'^The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. ' The Congress shall have power to enforce this article by appro- priate legislation. , t HANDBOOK OF AMERICAN CONSTITUTIONAL LAW THIRD EDITION CHAPTER I. DEFINITIONS AND GENERAL PRINCIPLES. 1. Constitutional Law Defined. 2-3. Constitution Defined. 4. Meaning of "Constitutional" and "Unconstitutional." 5. Written and Unwritten Constitutions. 6. c;onstitutions Not the Source of Rights. 7. Bills of Rights. 8. Right of Revolution. 9. Political and Personal Responsibility. CONSTITUTIONAI. LAW DEFINED. 1. Constitutional lair is that department of the science of la,xr -which treats of the nature of constitutions, their estahlishment, con- struction, - and interpretation, and of the validity of legal enactments as tested by the criterion of conformity to the funda- mental law. CONSTITUTION DEFINED. 2. The constitution of a state is the fundamental la-w of the state, containing the principles upon vrhich the government is founded, and regulating the division of the sovereign powers, directing to w^hat persons each of those powers ig to be con- fided and the manner in which it is to be exeroised.i 1 1 Bouv. Inst. 9. And see Frantz v. Autry, 18 Okl. 561, 91 Pae. 193, See "Constitutional Law," Dec. Dig. {Key No.) § 26; Cent. Dig. §, 50. Bi,.Oonst.L.(3d.Ed.)— 1 2 DEFINITIONS AND GENERAL PRINCIPLES. (Ch. 1 3. In American laxr, the constitution is the organic and fundamental act adopted hy the people of the ITnion or of a particular state as the supreme and paramount laiv and the basis and regulat- ing principle of the government. In public law, a constitution is "the organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic prin- ciples to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers." '' Two fundamental ideas are commonly implied in the term "consti- tution." The one is the regulation of the form of government; the other is the securing of the liberties of the people. But the former only is essential to the existence of a constitution, though the latter has been the principal object of all constitutions established within the last century. Despotism is not inconsistent with a constitution. If, in any given country, it is settled law that the form of government shall be a monarchy, an oligarchy, or a democracy, as the case may b6, and that the succession to the exercise of supreme executive power shall be determined in a regular manner, that is enough to make up the constitution of that country. The constitution of Russia estab- lishes the supreme and arbitrary power of the Czar and determines the order of succession to the throne. That of the German Empire prescribes the rule that the King of Prussia shall be Emperor of Ger- many, and regulates the representation of the component kingdoms and states in the federal legislature. That of the United States es- tablishes a republican form of government and apportions the powers of sovereignty between the Union and the states. But since the formation of the constitution of the United States, and the spread of liberal ideas throughout the civilized world, attendant upon the far- reaching influences of the French Revolution, an era of written consti- tutions has prevailed. These charters of government adopted or promulgated not only in North and South America but also in most of the countries of Europe, as well as Hawaii and Japan, have been largely concerned with guarantying the rights of the governed. If a king has granted a constitution, its prime object has been to admit the people to a share in the government and to secure their liberties against the exercise of despotic authority. If the people of a * Black, Law Diet. "Constitution," §§ 2-3) CONSTITUTION DEFINED, 3 state have adopted a democratic constitution, none the less have they deemed it important to specify the rights and immunities which they considered sacred and fundamental, and to make sure provision against their invasion by the men in power. Consequently, when we now speak of "constitutional government" or a "constitutional monarchy," it is this latter idea — the security of popular rights and liberties — which is principally dwelt upon. In American constitutional law, the word "constitution" is used in a very specific sense. It does not include any theories, traditions, or general understandings as to the government or any of its details, which have not been specifically adopted as a part of the written fun- damental law. It means the particular written instrument which em- bodies the whole of the organic law of the state or nation, and which is of supreme authority and force.* Synonyms. In a certain sense, constitutions may be said to be laws. That is, they are rules of civil conduct prescribed by the supreme power in a state, and are as much within the definition of "laws," in the widest signification of that term, as are the acts of a legislature. Thus, the constitution of the United States is declared to be the "supreme law of the land," no less than the acts of congress passed in pursuance of it. So, also, the same instrument forbids the several states to pass any law impairing the obligation of contracts, and declares that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; and it is held that these clauses do not relate solely to the acts of a state legis- lature, but that a state constitution or an amendment thereto is as much a "law," within their purview, as any statute. But in practice a distinction is made between those organic or fundamental laws which are called "constitutions" and such ordinary laws as are de- nominated "statutes." Both answer to the description of laws, but constitutions are seldom called "laws," and never called "statutes." 8 "A constitution is, according to the American idea, the organiza^tion of the government, distributing its powers among bodies of magistracy, and declar- ing their rights, and the liberties reserved and retained by the people." French v. State, 52 Miss. 759. "The Constitution of an American state is the supreme, organized, and written will of the people acting in convention, and assigning to the different departments of the government their respective powers." Taylor v. Governor, 1 Ark. 21. See "Constitutional Law" Dec. Dig. (Key No.) § 26; Cent. Dig. § 30. 4 DEFINITIONS AND GENERAL PKINCIPLES. (Ch. 1 A constitution differs from a statute or act of a legislature in three important particulars : (1) It is enacted by the whole people who are to be governed by it, instead of being enacted by their representatives sitting in a congress or legislature. (2) A constitution can be abrogated, repealed, or modified only by the power which created it, namely, the people; whereas a statute may be repealed or changed by the legislature. (3) The provisions of a constitution refer to the fundamental prin- ciples of government, or the establishment and guaranty of liberties, instead of being designed merely to regulate the conduct of individuals among themselves. But the tendency towards amplification, in mod- ern constitutions, derogates from the precision of this last distinction. MEANING OF "CONSXITTJTIONAI," AND "UNCONSTITUTIONAI-." 4. "Constitutional" means conforming to the constitution. A statute or ordinance Trbicli is inconsistent \ritli the constitution, or in conflict urith any of its provisions, is said to be "unconsti- tutional." The term "constitutional" means consistent with the constitution; authorized by the constitution ; not conflicting with any provision of the constitution or fundamental law of the state. It also means de- pendent upon a constitution, or secured or regulated by a constitution ; as a "constitutional monarchy," "constitutional rights." Hence, in American parlance, a constitutional law is one which is consonant to and agrees with the constitution; one which is not in violation of any provision of the constitution of the United States or of the par- ticular state. An unconstitutional law is one which is in violation of the constitution of the country or of the state. In those states where the same body which exercises the ordinary lawmaking power is also invested with the whole sovereignty of the nation, as is the case in Great Britain, an unconstitutional enactment is not necessarily void. There are rnany rules, precedents, and statutes, deemed a part of the British constitution, which are justly esteemed as valuable safeguards of liberty. But there is no one of them which parliament might not lawfully repeal. The Habeas Corpus Act, for example, might at any day be abrogated by act of parliament. Such a measure would be regarded as unconstitutional, because it would be in derogation of cer- tain principles which are universally deemed a part of the constitution as it now stands. But it would not lack the sanction of legality. It § 6) WRITTEN AND UNWRITTEN CONSTITUTIONS. 5 would occupy precisely the position of an amendment to a written con- stitution, and would be no less the law of the land than had been the law which it destroyed. But in a country governed by a written con- stitution, which is of supreme authority over the lawmaking power, and to which all ordinary legislation must bend, an unconstitutional law is void and of no effect, and in fact is no law at all. Yet, so long as it stands on the statute book unrepealed, it will have the presumptive force of law, unless the proper courts have pronounced its invalidity. Until that time, any person may disregard it at his own peril, but offi- cers are bound to give it force and effect. After it has been duly ad- judged unconstitutional, the presumption is that no further attempt will be made to enforce it. But the protection of the individual rests on the probability that the courts will abide by their first decision in regard to the law. ■WRITTEN AND XJNWTRITTEN CONSTITUTIONS. 5. Constitutions are classified as iirritten and un^vritten. All tbe American constitutions, national and state, belong to tbe class of -written constitutions. Among the various constitutional governments of the world, it is customary to make a distinction between those which possess a "writ- ten" constitution and those which are governed by an "unwritten" con- stitution. The distinction,, however, is not very exact. It is difficult to conceive of a constitution which should be wholly unwritten. Practical- ly, this term means no more than that a portion of what is considered to belong to the constitution of the country has never been cast in the form of a statute or charter, but rests in precedent or tradition. The so-called unwritten constitution of Great Britain consists, in large meaTsure, of acts of parliament, royal grants and charters, declarations of rights, and decisions of the courts. It also comprises certain max- ims, principles, or theories of government which, though not enact- ed with the force of law, have always been acquiesced in by the people and acted upon by the rulers, and thus, possessing historic continuity, may be said to enter into the fundamental conception of the nature and system of the government. The differences between written and unwritten constitutions, as these terms are generally employed, are chiefly as follows : First. A written constitution sums up in one instrument the whole of what is considered to belong to the constitution of the state; whereas, in the case of an unwritten 6 DEFINITIONS AND GENERAL PKINCIPLES. (Ch. 1 constitution, its various parts are to be sought in diverse connec- tions, and are partly statutory and partly customary. Second. A written constitution is either granted by the ruler or ordained by the people at one and the same time; while an unwritten constitution is gradually developed, and is contributed to not only by the executive and legislative branches of government, but also by the courts, and by the recognition, by rulers and people, of usages and theories gradually acquiring the force of law. Third. A written constitution is a crea- tion or product, while an unwritten constitution is a growth. The one may be influenced, in its essentials, by history, but is newly made and set forth. The other is not only defined by history, but, in a measure, is history. Fourth. A written constitution, in its letter, if not in its spirit, is incapable of further growth or expansion. It is fixed and final. An unwritten constitution, on the other hand, will expand and develop, of itself, to meet new exigencies or changing conditions of public opinion or political theory. Fifth. A written constitution, at least in a free country, is a supreme and paramount law, which all must obey, and to which all statutes, all institutions, and all govern- mental activities must bend, and which cannot be abrogated except by the people who created it. An unwritten constitution may be alter- ed or abolished, at any time or in any of its details, by the lawmaking power. Contents of Written Constitutions. As to the contents of a written constitution, the lines of definition are not very clear. It is by no means easy to say, as a matter of ab- stract theory, what such an instrument must contain in order to be a complete constitution, or what kinds of provisions are essential to it, and what foreign or superfluous. So far as regards a constitution for one of the United States, if it established a representative govern- ment, republican in form, provided for the three necessary depart- ments of government, fixed rules for the election and organization of the legislative department and the executive offices, defined and guarantied political rights, and secured the liberty of the individual in those particulars which are generally esteemed fundamental, it would probably be sufficient. On the other hand, there is practically no limit to the subjects or provisions which may be incorporated in the constitution. It might, for example, be made to include a code of civil or criminal procedure. The question in every case is how much the framers of the particular constitution are willing to leave to the legislative discretion, and what matters they desire to put § 6) CONSTITUTIONS NOT THE SOURCE OF RIGHTS. 7 beyond the reach of the legislature, in respect to their change or aboli- tion. Whatever is enacted in the form of law by a legislature may be repealed by the same or a succeeding legislature. But what is in- corporated in a constitution can be repealed only by the people. And the people, sitting in a constitutional convention, may put into their constitution any law, whether or not it has relation to the organization of the state, the limitation of governmental powers, or the freedom of the citizen, which they deem so important as to make it desirable that it should not be easily or hastily repealed. Of late years there is a very noticeable tendency towards longer and more elaborate consti- tutions, and towards the incorporation into them of many matters which properly have no relation to the idea of a fundamental organic act, but are intended as limitations upon legislative power. This dis- position probably arises from a growing distrust of the wisdom and public spirit of the state legislatures, and also from a desire of the p6ople to make their constitutions the means of bringing about re- forms which a majority of them consider desirable, and are unwilling to trust to the slower and less certain action of the legislature, CONSTITUTIONS NOT THE SOURCE OF BIGHTS. 6. The constitutions of the American states are grants of po-nrer ta those charged -with the government, bnt not grants of freedom to the people. They define and guaranty private rights, bnt do not create them. The state constitutions in this country grant and limit the powers of the several departments of government, but, generally speaking, they are not to be considered as the origin of liberty or rights. In a later chapter, when we come to consider the nature of liberty and of natural, civil, and political rights, it will be shown that some personal rights are taken up into the sphere of law and obtain effective recog- nition only by the constitution, and that certain political rights are directly created by that instrument. But with more particular refer- ence to the rights called "natural," it must now be remarked that they exist before constitutions and independently of them. Constitutions enumerate such rights and provide against their deprivation or in- fringement, but do not create them. It is supposed that all power, all rights, and all authority are vested in the people before they form or adopt a constitution. By such an instrument, they create a govern- ment, and define and limit the powers which its agencies are to exer- 8 , DEFINITIONS AND GENERAL PKINCIPLES. (Ch. 1 cise, and they also specify the rights which the constitution is to se- cure and the government respect. But they do not thereby invest the citizens of the commonweahh with any natural rights which they did not before possess. This is shown by the provision found in the con- stitutions of many of the states that the enumeration, in the bill of rights, of particular rights or privileges shall not be construed to im- pair or derogate from others retained by the people. Sources of American Constitutional Law. The system of government established by the constitution of the United States has no exact historical precedent. It was, in a sense, a creation and an experiment. But the framers of the constitution, though without a model for the whole structure, were guided, in respect to many details, by the experience and wisdom of other countries. To a very considerable degree, their action was determined by theories and ideas inherited from the mother country; and our constitution owes many of its provisions to that of Great Britain, as the latter then stood. Thus, the idea of a representative government, instead of a direct democracy, the principle of majority rule, the necessity of separating the three departments of government, the bicameral system in legislation, the doctrine of local self-government, and the balancing of centrifugal and centripetal forces — all these principles, and more, were incorporated into our constitution as a matter of course and be- cause they were essential parts of the Anglo-American idea of govern- ment. Some further ideas were borrowed by the framers of the consti- tution from the constitutions then existing in several of the states, and some, it is probable, from ancient history. Many provisions of the con- stitution, as is well known, were no more than compromises, necessary to be made in order to secure a sufficient adherence to make its ratifica- tion by the states probable. Almost without exception,* the great guar- * The prohibition against "laws impairing ttie obligation of contracts" does not appear to have been derived from any known source. Its origin is cer- tainly not to be found in ttie common law or any British statute. It was de- vised by the framers of the constitution as a means of securing the inviola- bility of private contracts against legislative interference, and was considered necessary in view of certain circumstances in the financial and political his- tory of the times. Black, Const. Prohib. §§ 2, 3. As to religious freedom and the liberty of the press, these important rights cannot be said to have attained in England, at the time of the formation of our constitution, such a degree of security as they have since won. But the need of making secure provision for them was undoubtedly suggested to the founders of our government by the struggles which were even then going on in the mother country ; and they § 7) BILLS OF BIGHTS. & anties which secure the natural, civH, and political rights of the citizen, and protect him against tyranny or oppression, were derived from the great charters and legislative enactments of Great Britain^ which had become a fixed part of her constitution, or from the common law, which the Americans claimed as their natural heritage and shield.* Among these rights we may mention that of "due process of law," of trial by jury, of the benefit of the writ of habeas corpus, of security against unreasonable searches and seizures, and many of the rights secured to persons on trial for criminal offenses. The several states, in framing their constitutions, have been guided and influenced by the same theories and doctrines, and by the prevalence of the same polit- ical ideas among the people, and also in later times, and to a very con- siderable degree, by the constitution of the United States. BILLS OF RIGHTS. 7. A liill of rigbts la a formal declaration, in a constitution, of tlie fundamental natural, civil, and political rights of the people irhich are to be secured and protected by the government. A bill of rights is in the nature of a classified list of the rights and privileges of individuals, whether personal, civil, or political, which the constitution is designed to protect against governmental oppres- established, at once and for the whole United States, such a fullness of free- dom, in these particulars, as the English people have as yet scarcely worked out for themselves. See Sadlier v. New York, 40 Misc. Rep. 78, 81 N. Y. Supp. 308, stating that the restraints of Magna Charta in favor of individual rights were upon the Crown only; they never were and are not upon Parliament. See "Nuisance," Dec. Dig. (Key No.) § 6; Gent. Dig. §§ 35-^7. 6 "The universal principle (and the practice has conformed to it) has been that the common law is our birthright and inheritance, and that our ances- tors brought hither with them upon their emigration all of it which was ap- plicable to their situation. The whole structure of our present jurisprudence stands upon the original foundations of the common law." 1 Story, Const. § 157. In the Declaration of Rights put forth by the Continental Congress In 1774 was the following clause: "The respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law." The English common law, in so far as it is applicable in this country, and where it has not been abrogated or changed by constitutional or statutory enactments, is in force in the several American states. Black, In- terp. Laws, 231 ; Marburg v. Cole, 49 Md. 402, 33 Am. Rep. 266 ; Hollman v. Bennett, 44 Miss. 322 ; Van Ness v. Pacard, 2 Pet'. 137, 7 L. Ed. 374. See "Common Law," Dec. Dig. (Key No.) § 11; Cent. Dig. § fl. 10 DEFINITIONS AND GENERAL PRINCIPLES. (Ch. 1 sion, containing also the formal assurance or guaranty of these rights. It is a charter of liberties for the individual, and a limita- tion upon the power of the state.' Such declarations are found in all the state constitutions. And the lack of a bill of rights was one of the objections to the federal constitution most strongly urged when it was before the people for their ratification. Very soon after the adoption of the constitution, this defect was remedied by the adoption of a series of amendments, of which the first eight may be said to con- stitute the federal bill of rights. These guaranties, however, as will more fully appear in another connection, were intended to operate only as a limitation upon the federal power, and not to impose any restrictions on the action of the several states. The idea, as well as the name, of a bill of rights, was undoubtedly suggested by certam great charters of liberty well known in English constitutional history, and particularly the "Bill of Rights" passed in the first year of the reign of William and Mary, A. D. 1689. BIGHT OF REVOLtlTIOW. 8. The right of revolution is the inherent right of a people to cast ont their rulers, change their polity, or effect radical reforms in their system of government or institutions, by force or a general uprising, when the legal and constitutional methods of mahing such changes have proved inadeq.uate, or are so ob- structed as to be unavailable. This right is a fundamental, natural right of the whole people, not existing in virtue of the constitution, but in spite of it. It belongs to the people as a necessary inference from the freedom and independ- ence of the nation. But revolution is entirely outside the pale of law. "Inter arma silent leges." Circumstances alone can justify a resort to the extreme measure of a revolution. In general, this right may be said to exist when tyranny or a corrupt and vicious government is in- trenched in power, so that it cannot be dislodged by legal means; or when the system of government has become intolerable for other caus- es, and the evils to be expected from a revolutionary rising are not so great as those which must be endured under the existing order of things; when the attempt is reasonably certain to succeed; and when the new order proposed to be introduced will be more satisfactory 7 See Robertson v. Baldwin, 165 U. S. 275, 17 Sup. Ct. 326, 41 L. Ed. 715 ; Ruffin V. Com., 21 Grat. (Va.) 790; Atchison St. Ry. Co. v. Missouri Pac. Ry. Co., 31 Kan. 660, 3 Pac. 2S4. See "Constitutional Law," Dec. Dig. (Key No.) % 82; Cent, Dig. § U9. § 9) POLITICAL AND PERSONAL RESPONSIBILITT. 11 to the people in general than that which is to be displaced. "Revolu- tion is either a forcible breach of the established constitution or a vio- lation of its principles. Thus, as a rule, revolutions are not matters of right, although they are mighty natural phenomena, which alter public law. Where the powers which are passionately stirred in the people are unchained, and produce a revolutionary eruption, the reg- ular operation of constitutional law is disturbed. In the presence of revolution, law is impotent. It is, indeed, a great task of practical politics to bring back revolutionary movements as soon as possible in- to the regular channels of constitutional reform. There can be no right of revolution, unless exceptionally; it can only be justified by that necessity which compels a nation to save its existence or to secure its growth where the ways of reform are closed. The constitution is only the external organization of the people, and if, by means of it, the state itself is in danger of perishing, or if vital interests of the public weal are threatened, necessity knows no law." * FOIilTICAI. AND PERSONAL BESFONSIBILIT7. 9. Generally speaking, the responsibility for political action is politi- cal only. That is, officers of the government, in either of its branches, are not liable at the snit of private parties for the consequences of acts done by them in the conrse of their public functions and in matters involving the exercise of judgment or discretion. In order to the due administration of government, it is necessary, that the officers who are charged with the various duties of making, interpreting, and administering the laws should enjoy a due measure of immunity from being called to account for their public acts at the instance of private parties. Misgovernment is to be remedied at the ballot box, not by suits at law. If the legislature attempts to violate or defy the constitution, it will be held in check by the judicial depart- ment. But for unwise or oppressive laws, not conflicting with the constitution or private rights, there is no redress save by the election of a new legislature. Courts cannot set aside a statute regularly pass- 8 Bluntschli, Theory of the State, 477. "AH power is inherent in the people, and all free governments are founded on that authority, and instituted for their peace, safety, and happiness. For the advancement of these ends they have at all times an unalterable and indefeasible right to alter, reform, or abolish the government In such manner as they may think proper. These principles in this country are well-recognized political truths, independent of any written constitution or laws." Ridley v. Sherbrook, 3 Cold. (Tenn.) 569. See "United States," Deo. Dig. (Key No.) § 1; Cent. Dig. § 1. 12 DEFINITIONS AND GBNBEAL PRINCIPLES. (Ch. 1 ed, on the ground that it was procured by bribery, fraud, or corrup- tion. And if individuals suffer detriment by reason of the laws en- acted, they have no right of action against the members of the legis- lative body. "It certainly cannot be argued," says the court in Mis- sissippi, "that the motives of the members of a legislative assembly, in voting for a particular law, can be inquired into, and its supporters be made personally liable, upon an allegation that they acted malicious- ly towards the person aggrieved by the passage of the law." ° And so, also, whenever the officers of a municipal corporation are vested with legislative powers, they hold and exercise them for the public good, and are clothed with all the immunities of government, and are exempt from all liability for their mistaken use, although they may be held responsible if shown to have acted corruptly.^** The judiciary are invested with a like privilege. Judges of inferior courts may be compelled, by appropriate process, to perform the du- ties laid upon them. But no judge can be held liable, at the suit of a private person, for any action taken or omitted by him, or decision rendered, in the exercise of his office of judge and of his judicial dis- cretion, even though he acted with malice or corruptly, provided he kept within the bounds of his jurisdiction, which, in the case of su- perior courts, will be presumed.^^ For gross abuses of power or mal- versation in office, on the part of the judiciary, the remedy is by im- peachment. A similar immunity protects the high officers of the executive de- partment. They may be controlled in the performance of merely min- isterial duties, involving the ascertained rights of individuals, by the process of the courts. But actions do not lie against them for dam- ages sustained by private persons in consequence of their political or public acts.^^ "Where the heads of departments are the political or 9 Jones V. Loving, 55 Miss. 109, 30 Am. Rep. 508. See "Municipal Corpora- tions," Dec. Dig. {Key No.) § 170; Cent. Dig. § 394. 10 Borough of Freeport v. Marks, 59 Pa.- 253; Jones v. Loving, 55 Miss. 109, 30 Am. Eep. 508; Amperse v. Winslow, 75 Mich. 234, 42 N. W. 823 r Walker v. Hallock, 32 Ind. 239. See "Municipal Corporations," Dec. Dig. (Key- No.) I nO; Cent. Dig. §§ 380-395. 11 Fray v. Blackburn, 3 Best & S. 576; Calder v. Halket, 3 Moore, P. C. 28 r Barnardiston v. Soame, 6 How. St. Tr. 1063 ; Hamond v. Howell, 2 Mod. 218 ; Houlden v. Smith, 14 Q. B. 841 ; Scott v. Stansfield, L. R. 3 Exch. 220 ; Kemp V. Neville, 10 O. B. (N. S.) 523 ; Bradley v. Fisher, 13 Wall. 335, 20 L. Ed. 646 ; Shoemaker v. Nesbit, 2 Rawle (Pa.) 201 ; Allec v. Reece (C. C.) 39 Fed. 341. See "Judges," Deo. Dig. (Key No.) § 36; Cent. Dig. §§ 165, 167, 178, 179. 12 Mississippi Y. Johnson, 4 Wall. 475, 18 L. Ed. 437; Marbury v. Madison^ § 9) POLITICAL AND PEE80KAL KESPONSIBILITT, 13 confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the per- formance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his coun- try for a remedy." ^* To illustrate, the right of removal from office is an executive power, for the exercise of which, generally, there can be no responsibility save such as is political. Thus, when the incum- bent of an office is dismissed, he cannot maintain an action for dam- ages against the officer or officers who exercised the right to remove him, unless he can show that malice and a desire to injure him were the impelling motives of their action.^* On similar principles, public agents, military or civil, of foreign governments (even revolutionary governments) cannot be held responsible, in any court within the Unit- ed States, for acts done within their own states, in the exercise of the sovereignty thereof, or pursuant to the directions of their govern- ments.^'' In matters of contract the rule is that a public officer who does not interpose his own credit is not liable on a contract executed by him on behalf of the state, even in cases where he might have been liable had he represented a private party; and where it is sought to charge him with a personal responsibility, the facts and circumstances mnst be such as to show clearly that both parties acted upon the as- sumption that a personal liability was intended.^' In the case of high 1 Cranch, 137, 2 L. Ed. 60 ; Macbeath v. Haldimand, 1 Term R. 172 ; Gidley V. Lord Palmerston, 3 Brod. & B. 275; Grant y. Secretary of State, 2 C. P. Div. 445; O'Reilly De Camara v. Brooke (D. 0.) 142 Fed. 858; Roberts v. United States, 13 App. D. C. 38; State v. Buchanan (Tenn. Cb. App.) 52 S. W. 480. See "United States," Dec. Dig. (Key No.) § 47; Cent. Dig. § SS; "Of- ficers," Dec. Dig. (Key No.) §§ llJf-118; Cent. Dig. §§ 187-196. 13 Marbury v. Madison, 1 Cranch, 137, 166, 2 L. Ed. 60. See "Mandamus," Dec. Dig. (Key No.) § 71; Cent. Dig. § 1S3. 14 Burton v. Fulton, 49 Pa. 151. See O'Reilly De Camara v. Brooke, 209 U. S. 45, 28 Sup. Ct. 439, 52 L. Ed. 676, as to immunity of military governor of Cuba under American occupation from liability in damages for abolishing a hereditary office with its emoluments. See "Schools and School Districts," Dec. Dig. (Key No.) § U2; Cent. Dig. § SOS. IB Underbill v. Hernandez, 13 C. C. A. 51, 65 Fed. 577, 38 L. R. A. 405. See "Ambassadors and Consuls," Dec. Dig. (Key No.) § 3; Cent. Dig. §§ 6-11; "International Law," Dec. Dig. (Key No.) § 4; Cent. Dig. § Jf. 18 New York & 0. S. S. Co. v. Harbison (C. C.) 16 Fed. 688 ; Parks v. Ross, 14 DEFINITIONS AND GENERAL PRINCIPLES. (Ch. 1 executive ofificers, as in the case of the judges, great misbehavior is ground for impeachment and removal from office. With regai-d to inferior officers, the rule is that they are not respon- sible at the suit of private parties for acts done by them in obedience to lawful commands, or in the bona fide and honest exercise of a dis- cretion with which the law invests them, but they must not use their official authority to inflict wanton or malicious injury upon others, nor neglect the duties which the law requires them to perform for the benefit of those who have a right to demand their services. ^^ Where a ministerial officer, for example, acts, in accordance with the direc- tions of a writ, due and regular in form, and issuing from a court of competent jurisdiction, and does not exceed its mandates, the law pro- tects him against personal liability for the consequences of his acts, although they work injury to private rights. ^^ But not so if he uses his official position or the process of the courts to oppress or injure persons from private motives or for private gain. A postmaster who receives a letter with directions to send it by registered mail, and does not register it, whereby the letter is lost, is liable in damages to the sender.^' And so, in general, is any officer whose services the public have a right to demand, and who unjustifiably neglects or refuses toper- form the duties laid upon him by law. A federal officer who, in the per- formance of what he conceives to be his official duties, transcends his authority and invades private rights, is answerable to the federal gov- ernment and to individuals injured by his acts ; but when those acts were done in good faith and without malice, he is not liable to a crim- inal prosecution in the courts of the state. ^° 11 How. 362, 13 L. Ed. 730 ; Hodgson v. Dexter, 1 Cranch, 345, 2 L. Ed. 130. See "Oijloers," Dec. Dig. (Key No.) § IH; Cent. Dig. § 19J. 17 O'Reilly De Camara v. Brooke (D. C.) 135 Fed. 384; Crawford v. :^id- man (C. C.) 129 Fed. 992; Bright v. Murphy, 105 La. 795, 30 South. 145; Salem Jlills Co. v. Lord, 42 Or. 82, 70 Pac. 832; Blue Jacket Consol. Copper Co. V. Scherr, 50 W. Va. 533, 40 S. E. 514 ; Llenemann v. Costa, 140 111. App. 167. See "Officers," Deo. Dig. (Key No.) §§ lU-118; Cent. Dig. §§ 187-196. 18 Sample v. Broadwell, 87 111. 617; Watson v. Watson, 9 Conn. 140, 23 Am. Dee. 324; Wilmarth r. Burt, 7 Mete. (Mass.) 257. See "Sheriffs and Constables," Dec. Dig. (Key No.) § 98; Cent. Dig. §§ 1J,3-157; "Officers," Dec. Dig. (Key No.) § lU; Cent. Dig. § 189. 19 Fitzgerald v. Burrill, 106 Mass. 446. See "Post Office," Dec. Dig. (Key No.) § 9; Cent. Dig. § 16. 20 In re Lewis (D. C.) 83 Fed. 159; In re Fair (C. C.) 100 Fed. 149; In re Waite (D. C.) 81 Fed; 359 ; State v. Waite, 101 Iowa, 377, 70 N. W. 596. See "United States," Dec. Dig. (Key No.) §§ 46-52; Cent. Dig. §§ 33-37. §§ 10-11) THE UNITED STATES AND THE STATES. 15 CHAPTER n. THE UNITED STATES AND THE STATES. 10-11. Nature of the American Union. 12. Sovereignty and Rights of the States. 13. Sovereignty of the People. 14. Form of Government in the United States. 15. The Union Indestructible. 16. Nature of the Federal Constitution. 17. The Constitution as a Grant of Powers. 18. The Constitution as the Supreme Law. NATURE OF THE AMERICAN TTNION. 10. Tlie TTnited States of America is a nation, possessiiig the cbarac- ter and attributes of sovereignty and independence. 11. FoIiticaUy speaking, the tTnited States is a nnion of separate conunonivealths, called "states." Geographically it Includes: (a) The states. (b) The territories. (c) The District of Columbia. (d) Territorial possessions beyond the seas, under the dominion and sovereignty of the United States, but not yet incorporated as a part thereof. Definition of "Nation." A nation is a people, or aggregation of men, existing in the form of an organized jural society, inhabiting a distinct portion of the earth, speaking the same language, using the same customs, possessing his- toric continuity, and distinguished from other Hke groups by their racial origin and characteristics, and generally, but not necessarily, living under the same government and sovereignty. Besides the ele- ment of autonomy or self-government, that is, the independence of the community as a whole from the interference of any foreign power in its affairs or any subjection to such power, it is further necessary to the constitution of a nation that it should be an organized jural society, that is, both governing its members by regular laws, and defining and protecting their rights, and respecting the rights and duties which at- tach to it as a constituent member of the family of nations. The word "nation" is to be distinguished from the related terms "people," "state," and "government." The people constitute the na- 16 THE UNITED STATES AND THE STATES. (Ch, 2 tion. But when we speak of the people, we use the term to designate those who live within the territory of the nation and who belong to it by such residence and by race and community of customs and charac- teristics, without implying the idea of government. The word "nation" adds to this conception the idea that the "people" are organized into a jural society and occupy a position among the independent powers of the earth. But the term "nation" is more nearly synonymous with "the people" than is the word "state." The last term denotes a single homo- geneous political society, or body politic, organized and administered under one government and one system of law. It is not so much used to characterize the inhabitants of the country, as to convey the idea of the government as a unit. A nation may be politically divided into several states, as was formerly the case in Italy. And conversely, one state may comprise several nations or parts of nations, as is the case in the Austro-Hungarian Empire. But such conditions are anomalous. Normally, the nation and the state are the same. The word "govern- ment" is properly used to denote either the act of administering the political affairs of a state, or the system of polity therein prevailing, or the aggregate of persons who, for the time being, are intrusted with the administration of the executive, legislative, and judicial business of the state. The United States a Nation. From the foregoing it will easily be seen that the United States, con- sidered as a unit, possesses all the characteristics and attributes, and is entitled to the designation, of a nation. It is composed of one people, united by language, customs, laws, and institutions, as well as by birth on the soil or adoption into the family of native citizens. It has the character of an organized jural society, governed, in all things con- cerning the whole people, by one system of law and one constitution. It occupies a distinct portion of the earth's surface. It acknowledges no political superior. It has also an inherent and absolute power of legislation; for a moment's reflection will show that the present ap- portionment of legislative power between the United States and the states rests solely on the will of the people, who constitute the nation. Definition of "Sovereignty." The term "sovereignty" denotes the possession of sovereign power or supreme political authority, including paramount control of the con- stitution and frame of government and its administration. It is the self-sufficient source of political power, from which all specific political powers are derived. It describes the international independence of a §§ 10-11) NATURE OF THE AMERICAIT UNION. 17 state, combined with the right and power of regulating its internal af- fairs without foreign dictation.^ "In the intercourse of nations, cer- tain states have a position of entire independence of others, and can perform all those acts which it is possible for any state to perform in this particular sphere. These same states have also entire power of self-government, that is, of independence of all other states so far as their own territory and citizens not living abroad are concerned. No foreign power or law can have control except by convention. This power of independent action in external and internal relations consti- tutes complete sovereignty." " Two Aspects of Sovereignty. It will be perceived that sovereignty has two sides or aspects, the external and the internal. On the external side, it means that the state spoken of is not subject to the control, dictation, or government of any other power. It necessarily implies the right and power to receive recognition as an independent power from other powers, and to make treaties with them on equal terms, make war or peace with them, send diplomatic agents to them, acquire territory by conquest or occupation, and otherwise to manifest its freedom and autonomy. As the individ- ual, in a free country, is the equal of all his fellow citizens in civil and political rights, though perhaps not in ability, influence, or power, so the sovereign state is the equal of all other states in the family of na- tions, in respect to its rights, though not in its prestige, territory, or power.' All independent states are bound by the rules of international law. But this law is established by their concurrent consent, and as it operates upon all alike, it is no derogation from the sovereignty of any. On the internal side, sovereignty implies the power of the state to make and alter its system of government, and to regulate its private affairs, as well as the rights and relations of its citizens, without any dictation, interference, or control on the part of any person or body or state outside the particular political community. Every statute is a manifestation of sovereignty. But where the country is governed under a written constitution, intended to endure against all change except by solemn expression of the will of the people, the ultimate test of sover- eignty must be found in the- right and power to alter the constitution of government at will. If this power is possessed by the people of the particular state, or by any determinate persons or body within the 1 Black, Law Diet. "Sovereignty." 2 1 Wools. Pol. Science, p. 204. a The Antelope, 10 Wheat. 66, 122, 6 L. Ed. 268. See "States," Dec. Dig. (Key No.) § 1; Cent. Dig. § 1. Bl.Const.L.(Sd.Ed.) — 2 18 THE UNITED STATES AND THE STATES. (Ch. 2 state, free from all interference by any exterior power and frpm the binding force of the constitution or laws of any exterior power, then the state is entitled, in this respect, to be called a sovereign state, and that power or body within the state which possesses this power to change the constitution is. the sovereign therein. Sovereignty of the United States. The United States possesses the character of a sovereign nation. The constitution confides to the general government plenary control over all foreign relations. The power to make treaties, send ambassa- dors and consuls, declare war and make peace, to regulate foreign com- merce, to establish a uniform rule of naturalization, to define and pun- ish offenses against the law of nations, to maintain an army and a navy, and generally to act as a nation in the intercourse of nations, is confided to the national authority alone. Moreover, the United States, as a political community, possesses absolute and uncontrolled power of legislation as concerns its internal affairs.* That it could not be inter- fered with in the exercise of this power by any foreign power or by any one of the component states, is self-evident. Nor is it any objection to this proposition that the constitution, as it stands at present, has limit- ed the sphere of operations of the national government. For the same power which established the constitution, namely, the people of the United States, could change it at will. It is no derogation from the powers of sovereignty that the body in which resides the ultimate sov- ereign power has chosen to restrict the legislative power which it grants to its representatives. At present, certain matters are not in- trusted to the regulation of congress, but are left to the action of the several states. But there can be no question that all such matters, if it should seem good to the people, might be withdrawn from the sphere of state activity, and placed under the paramount control of the Union. An inherent supreme power of legislation resides in the people who possess the sovereignty of the United States. The States. In American constitutional law the word "state" is generally em- ployed to denote one of the component commonwealths of the Ameri- can Union. These states, as will presently appear, are not sovereign. * The government of the United States within the scope of Its powers op- erates on every foot of territory within its jurisdiction, and it legislates for the whole nation and is not embarrassed by state lines. Snead v. Central of , Georgia B. Co. (C. C.) 151 Fed. 608. See "Vnited States," Dec. Dig. (Key No.) §§ 1, 22; Cent. Dig. §§ 1, U. §§ 10-11) NATURE OF THE AMERICAN UNION. 19 Neither are they nations, in any proper sense of the term. They are political communities, occupying separate territories, and possessing powers of self-government in respect to almost all matters of local in- terest and concern. Each, moreover, has its own constitution and laws and its own government, and enjoys a limited and qualified in- dependence. The Territories. The position of the territories, in our system of government, is some- what analogous to that of colonial dependencies, though it finds no exact parallel in past or contemporary history. The territories are not states of the Union. They do not possess full powers even of local self- government. They are subject to the exclusive jurisdiction and legis- lation of congress, although they are practically intrusted with a con- siderable measure of authority in respect to the government of their purely local affairs. Their officers are appointed by the President, and the acts of their legislative assemblies are liable to be overruled or an- nulled by the federal legislature. It may be said that they are held in ' tutelage by the general government ; that their territorial condition is transitory and that their system of government is temporary and pro- visional only. For it is always understood that the people of a territory are destined to create and maintain a state government as soon as, in the judgment of congress, they shall be prepared therefor, and be ad- mitted to the Union on an equality with the older states. "The terri- tories are but political subdivisions of the outlying dominion of the United States. Their relation to the general government is much the same as that which counties bear to the respective states, and congress may legislate for them as a state does for its municipal organizations. The organic law of a territory takes the place of a constitution as the fundamental law of the local government. It is obligatory on and binds the territorial authorities; but congress is supreme, and for the purposes of this department of its governmental authority, has all the powers of the people of the United States, except such as have been ex- pressly or by implication reserved in the prohibitions of the consti- tution." " The District of Columbia. The position of the District of Columbia is even more peculiar than that of the territories. In fact, it constitutes the most smgular anomaly s First Nat. Bank v. Yankton County, 101 U. S. 129, 25 L. Ed. 1046. See "Territories;' Dec. Dig. (Key No.) §§ 7, 8, 11, IS, 11; Cent. Dig. §§ i, 5, 8, 9, 12. 20 THE UNITED STATES AND THE STATES. (Ch. 2 in our political systems. The District is that portion of territory ceded to the United States for a site for the national capital. It is subject to the exclusive jurisdiction of congress. It is neither a state nor a terri- tory.* Its people have no direct participation in the government, even in respect to the administration of municipal affairs. Its executive de- partment consists of a board of three commissioners who are appointed by the President of the United States with the advice and consent of the senate. Its judges are appointed in like manner. Its local legisla- ture is congress. Its permanent residents are citizens of the United States, if they fulfill the conditions of citizenship laid down in the four- teenth amendment, but they are not citizens of any state. Insular Possessions. In regard to the status of the Philippine Islands, Porto Rico, Ha- waii (before its organization as a territory) and the Panama Canal Zone, the following principles appear to have been settled by the de- cisions hitherto rendered: It is the undoubted right of the United States, in the character of a sovereign nation, to acquire new territory either by conquest, purchase, or cession. Upon the acquisition of such territory, it ceases to be a "foreign country" within the meaning of the tariff laws, and it becomes a part of the United States for all, purposes of international law and foreign relations. But it does not follow that it becomes a part of the United. States for domestic or governmental purposes. It is "territory appurtenant to the United States" and sub- ject to its dominion and sovereignty, but does not become an integral part of the Union until incorporated into it by act of congress. The constitution does not follow the flag in the sense that, upon the mere cession or annexation of such new territory, all the constitutional guaranties of civil and political rights become operative in it, nor in such sense as to subject congress to all the restrictive provisions of the constitution in legislating for it, nor so as to make its irfhabitants citi- zens of the United States., Thus, until Congress shall order a change, the laws regulating personal and property rights, the domestic rela- tions, and the procedure of the courts, remain as they were under the former government of such territory, and criminal proceedings by • Hooe V. Jamleson, 166 U. S. 395, 17 Sup. Ct. 596, 41 L. Ed. 1049 ; Metro- politan R. Co. V. District of Columbia, 132 U. S. 1, 10 Sup. Ct. 19, 33 L. Ed. 231. Under its present form of government, the District of Columbia Is a municipal corporation. McBride v. Ross, 13 App. D. C. 576; Metropolitan R. Co. V. District of Columbia, 132 U. S. 1, 10 Sup. Ct. 19, 33 L. Ed. 231. See "District of Columbia," Dec. Dig. (Key No.) §§ 2-6; Cent. Dig. §§ S-5. §§ 10-11) NATURE OF THE AMERICAN UNION. 21 grand and petit juries are not substituted for the existing forms of criminal procedure. And on the other hand, congress may enact tax or tariff laws applicable to such territory without regard to the con- stitutional provision that duties and excises "shall be uniform through- out the United States." It rests in the wisdom and discretion of con- gress to organize such new possessions under the ordinary form of territorial governments, and thus bring them into the Union, or to re- tain them under such form of government as it shall see fit to provide; and in the latter case it may delegate its legislative authority over them to the executive department or to such persons as the President may appoint or to such other agencies as it may choose.' Restricted Meaning of the Term "State." When the word "state" is to be taken in its more restricted sense, as designating one of the component states of the Union, there is often some difficulty in determining its exact limits. This ambiguity arises chiefly in connection with the peculiar position of the territories and the District of Columbia. It may be stated, as a general rule, that the term "state" may include the territories and the District when used geographically, but not when used politically. And while these communities are not technically "states" of the Union, as the term is 7 De Lima v. Bidwell, 182 U. S. 1, 21 Sup. Ct. 743, 45 L. Ed. 1041 ; Dowries V. Bidwell, 182 U. S. 244, 21 Sup. Ct. 770, 45 L. Ed. 1088; Hawaii v. Man- klchi, 190 U. S. 197, 23 Sup. Ct. 787, 47 L. Bd. 1016 ; Dorr v. United States, 195 U. S. 138, 24 Sup. Ct. 808, 49 L. Ed. 128; Kepner v. United States, 195 U. S. 100, 24 Sup. Ct. 797, 49 L. Ed. 114 ; Bosque v. TTnited States, 209 U. S. 91, 28 .Sup. Ct. 501, 52 L. Ed. 698; Rasmussen v. United States, 197 U. S. 516, 25 Sup. Ct. 514, 49 L. Ed. 862; The Diamond Rings, l&S U. S. 176, 22 Sup. Ct. 59, 46 L. Ed. 138 ; Wilson v. Siaw, 2b4 U. S. 24, 27 Sup. Ct. 233, 51 L. Ed. 351 ; Carlno v. Insular Government of the Philippine Islands, 212 U. S. 449, 29 Sup. Ct. 334, 53 L. Ed. 594;: In re Chavez, 80 C. 0. A. 451, 149 Fed. 73 ; Grossman v. United States (0. C.) 105 Fed. 608 ; Goetze v. United States (C. C.) 103 Fed. 72; United States v. Helnszen, 206 U. S. 370, 27 Sup. Ct. 742, 51 Ij. Ed. 1098; Wilson v. Shaw, 25 App. D. C. 510; Basso v. United States, 40 Ct. CI. 202. Compare Ex parte Ortiz (C. C.) 100 Fed. 955. See Richmond v. People of Porto Rico, 51 Misc. Rep. 202, 99 N. Y. Supp. 743, hold- ing that Porto Rico, by virtue of the act of congress providing a civil gov- ernment for It, possesses suflSclent of the qualities of sovereignty to exempt it from liability to process or the jurisdiction of the courts of New York. For act of congress establishing a government for the Philippines, see Act July 1, 1902, 32 Stat. 691. For act providing a civil government for Porto Rico, see Act April 12, 1900, 31 Stat. 77, c. 191. See "Territories," Deo. Dig, (Key No.) ^14, 7-11, 18-23, 32s Cent. Dig. §§ 2, 4-8, 14-20; "Customs Duties," Deo. Dig. {Key No.) § 13. 22 THE UNITED STATES AND THE STATES. (Ch. 2 used in the constitution, yet they may be held to come under that designation, as used in treaties and acts of congress, if plainly within their spirit and meaning.' SOVEREIGNTY AND RIGHTS OF THE STATES. 12. The several states bave not .the attribute of soTereignty, except in a limited and qualified sense. They are local self-governing communities, independent as respects each other, independent in a limited and qualified sense as respects the Union, but not ranking as nations or sovereign poirers for the purposes of in- ternational laiv. State Sovereignty. The several states composing the American Union never enjoyed complete sovereignty as regards the external side, and do not now pos- sess it. This is shown by the fact that they were always subject to some common superior in respect to their relations with foreign powers. First it was the king and parliament of England, then the revolutionary congress, then the confederation, and now the IJnited States. For as all authority over foreign relations and affairs is confided to the nation- al government, it follows as a necessary consequence that all such au- thority is denied to the separate states. None of them can deal direct- ly vwth a foreign nation. , "The only government of this country which other nations recognize or treat with is the government of the Union, and the only American flag known throughout the world is the flag of the United States." * On the external side, therefore, we may entirely dismiss the notion of any state sovereignty. An apparent exception may be found in the case of Rhode Island and North Carolina, which re- mained out of the Union for a short time after the national government was organized, and thus acquired complete independence, and also in 8 De Geofroy v. Riggs, 133 U. S. 258, 10 Sup. Ct. 295, 33 Tj. Ed. 642 ; Tal- bot V. Board of Com'rs of Silver Bow County, 139 U. S. 438, 11 Sup. Ct. 594, 35 I/. Ed. 599; The Ullock (D. C.) 19 Fed. 207. In the Internal revenue acts of congress it is provided that the word "state" shall include the territories and the District of Columbia whenever such construction is necessary to carry out their provisions. Rev. St. U. S. § 3140 (U. S. Comp. St. 1901, p. 2040). See "District of ColumMa," Dec Dig. (Key No.) § 2; Cent. Dig. | 2; "States," Dec. Dig. (Key No.) §§ 1, 4, 5; Cent. Dig. §§ 1, 2; "Territories," Dec. Dig. (Key No.) §§ 1-18; Cent. Dig. §§ 1-15. » Fong Tue Ting v. U. S., 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 905 ; 1 Story, Const. § 210. See "States," Dec. Dig. (Key No.) §§ 1-7; Cent. Dig. §§ 1-3; "United States," Dec. Dig.\Key No.) §§ 1-5; Cent. Dig. §§ 1-^. § 12) SOVEREIGNTY AND EIGHTS OF THE STATES. 23 the case of Texas, which was a sovereign and independent repubhc at the time of its admission. But the two former states never sought or obtained recognition from any foreign government, nor exercised any act of external sovereignty. And the latter state, on coming into the Union, surrendered all such powers and rights as were incompatible with its new rank and position as one of the states. None of these states, therefore, now possesses any sovereignty except such as may be enjoyed by all the states alike. But the question of state sovereignty is not determined alone with ref- erence to external relations. It also depends in a measure upon the relation of the states to each other and to the Union, and on their in- ternal powers of legislation. As respects each other, the several states of the Union enjoy a qualified sovereignty. It is not an absolute sover- eignty, even here, because they cannot make treaties with each other (unless with the consent of congress), and there are numerous particu- lars in which the relation of the states is regulated by the federal con- stitution. In all such matters as the effect of judicial proceedings, the extradition of criminals, and the privileges of citizens, the several states are not at liberty to deal with each other as independent communities. Again, as regards the relation of the several states to the Union, it may be said that each state enjoys a qualified and relative sovereignty. The practical description of the manner of this apportionment of sover- eign power which has been agreed on by statesmen and courts is that each state retains plenary authority over those matters which have not been confided to the general government by the constitution nor prohib- ited to the states, and that the Union possesses plenary authority over those subjects which the constitution intrusts to its regulation. Finally, in respect to the regulation of their own system of govern- ment and internal affairs, the states possess no more than a limited or qualified sovereignty. The ultimate test of sovereignty, in this respect, as we have already said, is the power to alter the constitution at will. But this the states cannot do. For there are numerous provisions of the federal constitution which impose limitations upon the power of the states, as well in the making or changing of constitutions as in the enactment of laws. For example, no state, in adopting or amending a constitution, could establish anything but a republican form of govern- ment, or abridge the privileges of citizens of the United States, or im- pair the obligation of contracts. State Rights. The rights of the several states of the Union, possessed and to be enjoyed by them as such, are political and governmental in their nature. 24 THE UNITED STATES AND THE STATES. (Ch. 2 They consist in such a degree of autonomy and such powers of free action and of regulation of their own affairs as may not be inconsistent with the nature of the relation of the Union to each of the states, nor with the exercise of those powers which are confided, by the constitu- tion, to the federal government.^" They embrace all those powers which were possessed by the several states at the time of the adoption of that constitution, with the exception of such as are therein delegated to the central authority, or thereby prohibited to the states. But it is evident that, within the limits of this definition, there is room for great difference of opinion in details. And in fact, ever since the foundation of the Union, two schools of statesmen have been found, divided in their views on the nature and boundaries of state rights. According to one school, the federal constitution is to be subjected to a strict construc- tion in respect to the powers granted to the national government and a liberal interpretation for the preservation of the autonomy of the states. According to the other school, the rule of interpretation is to be revers- ed. Those holding the one opinion contend that the government of the Union should be held strictly to the exercise of the powers expressly granted to it, and that its province and jurisdiction should not be en- larged by implication. According to the other party, the true theory of our government and institutions is in favor of such a construction of the constitution as will give the federal government the largest measure of power which is compatible with the continued and useful existence of the states. By them the nation is regarded as the only sovereign pow- er, and they contend that it should be accorded all such rights and powers as may be convenient to enable it to discharge its functions as such and to maintain its place among the nations of the earth. The ex- treme advocates of the one view have maintained that it was within the rightful power of a state to nullify (that is, refuse submission to, and resist by any adequate force) any act of the general government which, in the judgment of that state, was contrary to the constitution or be- yond the) boundaries of the legitimate power of the Union. These 10 Southern Gum Co. v. Laylin, 66 Ohio St. 578, 64 N. E. 564 ; People v. Tool, 35 Colo. 225, 86 Pac. 224, 6 L. R. A. (N. S.) 822, 117 Am. 'St. Rep. 198 ; State V. Hanson, 16 N. D. 347, 113 N. W. 371 ; Hoxie v. New York, N. H. & H. R. Co., 82 Conn. 352, 73 Atl. 754. Regarding the fourteenth amendment to the federal constitution as a limitation upon state jwwer and sovereignty, see Georgia R. & Banking Co. v. Wright, 125 Ga. 589, 54 S. E. 52, and same case, 207 U. S. 127, 28 Sup. Ct. 47, 52 L. Ed. 134. See '•States," Dec. Dig. (Key No.) §§ 1, 4, 5; Cent. Dig. §§ 1, 2j "United States," Dec. Dig. (Key No.} (§ 1, 5; Cent. Dig. §§ 1, 4. § 12) SOVBEEIGNTT AND RIGHTS OF THE STATES. 25 theorists also contended that a state possessed the power and the right to withdraw from the Union and set up a new government, either alone or with other states which might follow its example, whenever, in its judgment, its own interests required such a dissolution of the tie which bound it to the other states. On the other hand, statesmen of the other party have gone so far as to regard the several states as mere ema- nations from the Union, and as standing in the same relation to it which is occupied by the municipal corporations of a state towards the state. Between these two extremes lies the truth. Although the two theories of construction, strict and liberal, still subsist, it is now q'uite generally agreed that both the several states and the Union are supreme, each within its own appropriate sphere ; that the rights of the individual state and of the Union are equally necessary to be preserved and must be accommodated to each other ; that the authorities of the Union are to judge of the extent of the powers granted to it; that the rightful au- tonomy of each state is beyond the reach of federal interference ; and that the Union is perpetual and indissoluble. Prerogatives of State. The sovereignty of a state of the American Union, though qualified and limited as above explained, invests it with certain prerogatives and immunities which are highly important. It was a maxim of the English law that "nullum tempus occurrit regi" ; and on the same principle the doctrine of laches does not apply to a state in proceedings for the asser- tion of its rights. ^^ Nor can a state be estopped by any neglect, mis- conduct, or unauthorized act of its officers or agents. ^^ Neither is it bound by the statute of limitations unless expressly so provided by law.^^ Nor can a state or the national government be held responsible in any way for the tortious or wrongful acts of its public officers.^* 11 Georgia v. Tennessee Copper Co., 206 U. S. 230, 27 Sup. Ct. 618, 51 L. Ed. 1038; United States v. Devereux, 90 Fed. 182, 32 0. 0. A. 564; State V. City of Columbia (Tenn. Ch. App.) 52 S. W. 511; State v. Sponaugle, 45 W. Va. 415, 32 S. E. 283, 43 L. R. A. 727. See "States," Deo. Dig. (Key No.) § 201; Cent. Dig. § 193. 12 United States v. La Chappelle (C. C.) 81 Fed. 152 ; Carolina Nat. Bank V. State, 60 S. C. 465, 38 S. E. €29, 85 Am. St. Rep. 865; State v. Chilton, 49 W. Va. 453, 39 S. B. 612 ; Long v. McDowell, 107 Ky. 14, 52 S. W. 812, 21 Ky. Law Rep. 605. See "Estoppel," Dec. Dig. (Key Vo.) § 62; Cent. Dig. §§ 151-153. iswasteney v. Schott, 58 Ohio St. 410, 51 N. E. 34; State v. Halter, 149 Ind. 292, 47 N. E. 665 ; Louisville & N. R. Co. v. Smith, 125 Ky. 336, 31 Ky. 1* See note 14 on following page. 26 . THE UNITED STATES AND THE STATES. (Ch. 2 Same — Suits by and against State. The eleventh amendment to the federal constitution prohibits the maintenance of an action against a state by any private person. This operates only as a restriction on the judicial power of the United States. But aside from this, it is settled that a state cannot be sued in one of its own courts or in a court of another state, whether by one of its own citizens or by an ahen, without its own express consent ;^^ and if it grants such consent, it may limit and restrict the right of suit by such terms and conditions as it may see fit to impose ;^° and the consent of the state that it may be sued is not a contract, and can be withdrawn or modified at any time in the discretion of the state, even after suit has been commenced. ^^ Further, when a suit nominally against a state offi- cer really affects the rights, interests, or property of the state, as dis- tinguished from the rights of private parties, it is in effect a suit against the state and cannot be maintained unless the state has consented to be Law Rep. 1, 101 S. W. 317 ; Com. v. Haly, 106 Ky. 716, 51 S. W. 430, 21 Ky. Law Rep. 666. See "Limitation of Actions," Dec. Dig. (Key No.) § 11; Cent. Dig. §§ S5-S9. 1* Washington Loan & Trust Co. v. United States, 39 Ct. CI. 152; Elmore V. Fields, 153 Ala. 345, 45 South. 66, 127 Am. St. Rep. 31 ; Claussen v. City ofLuverne, 103 Minn. 491, 115 N. W. 643, 15 L. R. A. (N. S.) 698; Moody V. State's Prison, 128 N. C. 12, 38 S. E. 131, 53 L. R. A. 855 ; BiUmgs v. State, 27 Wash. 288,. 67 Pac. 583. .See "States," Dec. Dig. (Key Wo.) § US; Cent. Dig. § 111; "United States," Dec. Dig. (Key No.) § 78; Cent. Dig. § 62. 15 Alabama Industrial School v. Addler, 144 Ala. 555, 42 South. 116, 113 Am. St Rep. 58 ; Davis v. State, 121 Cal. 210, 53 Pac. 555 ; Peeples v. Byrd, 98 Ga. 688, 25 S. E. 677 ; Hollister v. State, 9 Idaho, 8, 71 Pac. 541 ; People V. Sanitary Dist. of Chicago, 210 111. 171, 71 IST. E. 334; Asbell v. State, 60 Kan. 51, 55 Pac. 338 ; Wright v. State Board of Liquidation, 49 La. Ann. 1213, 22 South. 361 ; Carter v. State, 49 La. Ann. 1487, 22 South. 400 ; Mc- Arthur Bros. Co. v. Com., 197 Mass. 187, 83 N. E. 334 ; Hodgdon v. City of Haverhill, 193 Mass. 406, 79 N. E. 830; State v. Mortensen, 69 Neb. 376, 95 N. W. 831; Seltz v. Messerschmitt, 188 N. Y. 587, 81 N. E. 1175; Litchfield V. Pond, 186 N. T. 66, 78 N. E. 719 ; Nussbaum v. State, 119 App. Div. 755. 104 N. T. Supp. 527 ; General Oil Co. v. Grain, 117 Tenn. 82, 95 S. W. 824, 121 Am. St. Rep. 967; Blue Jacket Consol. Copper Co. v. Scherr, 50 W. Va. 533, 40 S. E. 514 ; City of Terre Haute v. Farmers' Loan & Trust Co., 99 Fed. 838, 40 C. C. A. 117. See "States," Dec. Dig. (Key No.) § 191; Cent. Dig. §§ 179-184- 16 Smith v. Reeves, 178 U. S. 436, 20 Sup. Ct. 919, 44 L. Ed. 1140; Flagg V. Bradford, 181 Mass. 315, 63 N. E. 898. See "States," Deo. Dig. (Key No.) § 191; Cent. Dig. §§ n9-m. IT State V. State Dispensary Commission, 79 S. C. 316, 60 S. E. 928. Sea "States," Dec. Dig. (Key No.) § 191; Cent. Dig. % 183. § 12) SOVERBIGNTT AND KIGHT8 OF THE STATES. 27 sued.^* Neither costs nor interest may be awarded against the state in a suit to which it is a party in the absence of express statutory au- thority.^' But on the other hand the courts both of the state and of the United States are open to a state as a plaintiff, both in its sover- eign capacity and by virtue of its corporate rights.^" And when the state enters a court as a litigant and invokes its judgment for any pur- pose, it is as much bound by the judgment, favorable or adverse, as any private suitor would be,^^ though no judgment against the state could be enforced by seizure and sale of its property,'"' and it is generally held that the institution of an action by the state as plaintiff does not justify the interposition of a set-off or counterclaim, or the rendition of judgment thereon, if an action against the state could not have been brought on it.^* Business and Contractual Relations of State. When a state engages in business or makes contracts, it lays aside its sovereign character pro tanto, and is generally bound by the same 18 Gunter v. Atlantic Coast Line R. Co., 200 U. S. 273, 26 S. ,Ct. 252, 50 L. Ed. 477; German Alliance Ins. Co. v. Van Cleave, 191 111. 410, 61 N. E. 94 ; Wilson v. Louisiana Purcliase Exposition Commission, 133 Iowa, 586, 110 N. W. 1045, 119 Am. St. Rep. 646 ; Illinois Life Ins. Co. v. Prewitt, 123 Ky. 36, 93 S. W. 633, 29 Ky. Law Rep. 447; Seitz v. Messerschmitt, 188 N. Y. 587, 81 N. E. 1175; Sanders v. Saxton, 182 N. Y. 477, 75 N. E. 529, 1 L. R. A. (N. S.) 727, 108 Am. St. Rep. 826; Salem Mills Co. v. Lord, 42 Or. 82, 69 Pac. 1033; North British & Mercantile Ins. Co. v. Craig, 106 Tenn. 621, 02 S. W. 155. See "States," Dec. Dig. (Kev No.) § 191; Cent. Dig. § 181. i9Sandberg v. State, 113 Wis. 578, 89 N. W. 504; Com. v. Lyon, 24 ICy. Law Rep. 1747, 72 S. W. 323; State v. Buckman, 95 Minn. 272, 104 N. W. 289 ; State v. Williams, 101 Md. 529, 61 Atl. 297, 1 L. R. A. (N. S.) 2.34, 109 Am. St. Rep. 579 ; Haley v. Sheridan, 190 N. Y. 331, 83 N. E. 296 ; .State v. Buchanan (Tenn. Ch. App.) 62 S. W. 287 ; State v. Bradford Sav. Bank, 71 Vt. 234, 44 Atl. 349. See "States," Dec. Dig, (Key No.) § 215; Cent. Dig. § 203. 2 Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 8 Sup. Ct. 1370, 32 L. Ed. 239 ; State v. Ohio Oil Co., 150 Ind. 21, 49 N. B. 809, 47 L. R. A. 627 ; People V. Tool, 35 Colo. 225, 86 Pac. 224, 6 L. R. A. (X. S.) 822, 117 Am. St. Rep. 198. See "States," Dec. Dig. (Key No.) § 190; Cent. Dig. § ITS. 21 State V. Kennedy, 60 Neb. 300, 83 N. W. 87; State v. Cloudt (Tex. Civ. App.) 84 S. W. 415 ; State v. Heirs of Zanco, 18 Tex. Civ. App. 127, 44 S. W. 527. See "States," Dec. Dig. (Key No.) § 212; Cent. Dig. § 201. 22 Carter v. State, 42 La. Ann. 927, 8 South. 836, 21 Am. St. Rep. 404. See "States," Dec. Dig. (Key No.) § 212; Cent. Dig. § 201. 28 People V. Roberts, 157 N. Y. 676, 51 N. E. 1093 ; Alabama Girls' Indus- trial School V. Reynolds, 143 Ala. 579, 42 South. 114. But compare State v. Kilburn, 81 Conn. 9, 69 Atl. 1028; Commonwealth v. Barker, 126 Ky. 200, 31 28 THE UNITED STATES AND THE STATES. (Ch. 2 rules and principles of law which govern private individuals in similar relations,^* though by force of statutes the states, as well as the United States, generally have preference over other creditors in the distribution of insolvent estates,^" and another exception is that the laws prohibit- ing usury are not applicable to the state in respect to mortgage loans of state money."* Thus, when either the United States or a state enters into a contract of lease, either in the character of lessor or of lessee, it is bound by the local law of landlord and tenant, as any pri- vate person would be."' A state is also bound by the acts of its au- thorized officers and agents when they act within the scope of their authority, though not when they exceed it."* State. Boundaries. The boundaries between the thirteen original states were supposed to be established at the time of the formation of the Union, but as a mat- ter of fact there then existed controversies between eleven, states as to their boundaries, which have since been determined by the supreme Ky. Law Rep. 648, 103 S. W. 303. See "States," Dec. Dig. (Key No.) § 199,- Cent. Dig. § 189. 2* Harley v. United States, 39 Ct. CI. 105 ; Mountain Copper Co. v. United States, 142 Fed. 625, 73 C. C. A. 621 ; Union Trust Co. v. State, 154 Cai. 716, 99 Pae. 183. Compare In re Western Implement Co. (D. C.) 166 Fed. 576, hold- ing that a state, in the manufacture of commodities in its penitentiary and selling the same to the general public under an express statute authorizing such sale, is engaged in the performance of a governmental function and not merely in a private commercial enterprise. As to constitutional provisions for- bidding the state to engage in works of internal improvement, see Village of Bloomer v. Town of Bloomer, 128 Wis. 297, 107 N. W. 974. See "States," Dec. Dig. (Key No.) §§ 85-111; Cent. Dig. §§ 86-110. 2B United States v. Heaton, 128 Fed. 414, 63 C. C. A. 156 ; State v. Williams, 101 Md. 529, 61 Atl. 297, 1 L. R. A. (N. S.) 254, 109 Am. St. Rep. 579. See Rev. St. U. S. §§ 3466-3468 (U. S. Comp. St. 1901, p. 2314). And see United States Fidelity & Guaranty Co. v. Rainey (Tenn.) 113 S. W. 397. See "States," Dec. Dig. (Key No.) § 110; Cent. Dig. § 108; "United States," Dec. Dig. (Key No.} § 76; Cent. Dig. § 59. 2 6 State V. FItzpatrick, 5 Idaho, 499, 51 Pac. 112. See "States," Dec. Dig. (Key No.) § m- 2 7 Clifford V. United States, 34 Ct. CI. 223; Boston Molasses Co. v. Com., 193 Mass. 387, 79 N. E. 827 ; Hall v. State, 79 Miss. 38, 29 South. 994. See "States," Dec. Dig. (Key No.) § 87. 2 8 Luse V. Rankin, 57 Neb. 632, 78 N. W. 258; Camp & West v. McLin, 44 Fla. 510, 32 South. 927 ; Spencer v. State, 110 App. Div. 585, 97 N. Y. Supp. 154. Only the legislature, and not the state treasurer, has power to accept a bequest to the state in trust. State v. Blake, 69 Conn. 64, 36 Atl. 1019. See' "States," Dec. Dig. (Key No.) §§ 85, lOS, IIZ; Cent, Dig. §§ 99, 100, 111. I 12) 80VKKEIGNTT AND RIGHTS OF THE STATES. 29 ■court of the United States, which has original jurisdiction in such cas- es.^* The boundaries of a new state are described in the act of con- gress for its admission into the Union. But adjacent states may also fix and settle their boundaries by compact or agreement, ratified by the legislatures of both, provided congress assents to such agreement or approves and ratifies it.^" A state boundary line formed by a navi- gable river changes with a gradual change of the bank by accretion or reliction, but is not affected by an avulsion.'^ A state may also lose its sovereignty and jurisdiction over a portion of its territory by prescrip- tion and long continued acquiescence in the assertion of a particular boundary line.'^ National and State Flags and Emblems. Several states have enacted laws prohibiting the use or display of the flag of the United States or the flag or seal of the state for commer- cial or advertising purposes, and in some cases making it a misdemean- or to deface or mutilate the national or state flag or to cast contempt upon it by words or acts. These laws have been assailed on many dif- ferent constitutional grounds, but their validity has generally been sus- tained.^^ And it is held that the power to prohibit the use of the nation- 2» See Rhode Island v. Massachusetts, 12 Pet. 657, 8 L. Ed. 816; New Jer- sey V. New York, 5 Pet. 284, 8 L. Ed. 127 ; Missouri v. Iowa, 7 How. 660, 12 L. Ed. 861 ; Florida v. Georgia, 17 How. 478, 15 L. Ed. 181 ; Alabama v. Geor- gia, 23 How. 505, 16 L. Ed. 556 ; Virginia v. West Virginia, 11 Wall. 39, 20 L. Ed. 67; Missouri v. Kentucky, 11 Wall. 395, 20 L. Ed. 116; Indiana v. Ken- tucky, 136 U. S. 479, 10 Sup. Ct. 1051, 34 L. Ed. 329 ; Nebraska v. Iowa, 143 V. S. 359, 12 Sup. Ot. 396, 36 L. Ed. 186. See "States," Dec. Dig. (Key No.) § IS; Cent. Dig. § i2; "Courts," Dec. Dig. (Key No.) § 379; Cent. Dig. § 9S7. so Virginia v. Tennessee, 148 U. S. 503, 13 Sup. Ct. 728, 37 L. Ed. 537; Poole T. Fleeger, 11 Pet. 185, 9 L. Ed. 680; Missouri v. Iowa, 165 U. S. 118, 17 Sup. Ct. 290, 41 L. Eid. 655; Central R. of New Jersey v. Jersey City, 70 N. J. Law, 81, 56 Atl. 239 ; In re New Castle Circle Boundary Case, 6 Pa. Dist. R. 184 ; Washington v. Oregon, 211 U. S. 127, 29 Sup. Ct. 47, 53 L. Ed. 118. See "States," Dec. Dig. (Key No.) § 13; Cent. Dig.'^ 12. 81 De Loney v. State (Ark.) 115 S. W. 138; Fowler v. Wood, 73 Kan. 511, 85 Pac. 763, 6 L. R. A. (N. S.) 162, 117 Am. St. Rep. 534; Ooulthard v. Mc- intosh (Iowa) 122 N. W. 233. See "States," Dec. Dig. (Key No.) § 12; Cent. Dig. § S. 82 Louisiana v. Mississippi, 202 U. S. 1, 26 Sup. Ct. 408, 50 L. Ed. 913 ; Moore & McFerrin v. McGuire (C. C.) 142 Fed. 787; Town of Searsburg v. Wood- ford, 76 Vt. 370, 57 Atl. 961. See "States," Dec. Dig. (Key No.) § 12. 83 Halter v. Nebraska, 205 U. S. 34, 27 Sup. Ct. 419, 51 L. Ed. 696 ; Com. V. E. I. Sherman Mfg. Co., 189 Mass. 76, 75 N. E. 71 ; Halter v. State, 74 Neb. 30 THE UNITED STATES AND THE STATES. (Ch. 2 al flag for improper purposes does not belong exclusively to congress, but may be exercised by the several states.^* SOVEREIGNTY OF THE FEOPIiE. 13. In America, sovereignty resides in the people. Bnt the people here meant are the qualified electors, or a majority of them, and they can exercise their sovereign power only in the modes pointed out by their constitutions. The word "people" may have various significations according to the connection in which it is used. When we speak of the rights of the people, or of the government of the people by law, or of the people as a non-political aggregate, we mean all the inhabitants of the state or nation, without distinction as to sex, age, or otherwise. But when reference is made to the people as the repository of sovereignty, or as the source of governmental power, or to popular government, we are in fact speaking of that selected and limited class of citizens to whom> the constitution accords the elective franchise and the right of partici- pation in the offices of government.^' The people, in this narrow sense, are the "collegiate sovereign" of the state and the nation. But the sovereign can exercise his sovereign powers only in the mode pointed out by the organic law which he has himself ordained. This will be shown more fully in a subsequent chapter, in connection with the ques- tion of the power of the people to revise and amend their constitutions. 757, 105 N. W. 298, 7 L. R. A. (N. S.) 1079, 121 Am. St. Rep. 754. Contra, Ruhstrat v. People, 185 111. 133, 57 N. B. 41, 49 L. R. A. 181, 76 Am. St. Rep. 30. In New York, it is held that so much of the statute as prohibits the de- facement or mutilation of the flag or the casting of contempt upon it, is valid as a proper exercise of the state's police power, but that to forbid its use for advertising purposes is an unconstitutional restraint on the personal liberty of the Citizen. People v. Van De Carr, 178 N. Y. 425, 70 N. B. 965, 66 L. R. A. 189, 102 Am. St. Rep. 516. See "States," Deo. Dig. (Key No.) §§ 4 23,- "Oonstitutional Law," Deo. Dig. (Key No.) §§ 81, 208. 3* Halter v. State, 74 Neb. 757, 105 N. W. 298, 7 L. R. A. (N. S.) 1079, 121 Am. St. Rep. 754. See "States," Deo. Dig. {Key No.) § 4. 3 5 In re Incurring State Debts, 19 R. I. 610, 37 Atl. 14. And see Solon v. State,- 54 Tex. Or. R. 261, 114 S. W. 349. See "Elections," Dec. Dig. (Key Nd.y §§ 1-19; Cent. Dig. §§ I-I4. § 14) FOKM OF GOVERNMENT IN THE UNITED STATES. 31 FOBM OF GOVERNMENT IN THE UNITED STATES. 14. The goTeTiimeii.t of tlie TTnited States is a federal government.. Tlie United States is a republic, and so also is each of the states, the form of government being Representative. Federal Government. The American Union is commonly described as a federal govern- ment. And political writers and jurists usually speak of the federal constitution, the federal courts and jurisdiction, federal powers, the federal executive, etc. The use of this term is not made imperative by anything in the constitution. The nature of the government is not described therein. Nor can its employment settle anything as to the nature or powers of the government. But the term expresses the com- mon understanding as to the kind of government prevailing in our coun- try. And it is a correct designation, technically, if taken in its true sense. There is, in political science, a substantial difference between a confederation and a federal government. The former term denotes a league or permatient alliance between several states, each of which is fully sovereign and independent, and each of which retains its full dignity, organization, and sovereignty, though yielding to the central authority a controlling power for a few limited purposes, such as ex- ternal and diplomatic relations. In this case, the component states are the units, with respect to the confederation, and the central govern- ment acts upon them, not upon the individual citizen. In a federal government, on the other hand, the allied states form a union, not in- deed to such an extent as to destroy their separate organization or de- prive them of quasi sovereignty with respect to the administration of their local concerns, but so that the central power is erected into a true state or nation, possessing sovereignty both external and internal, while the administration of national affairs is directed, and its effects felt, not by the separate states deliberating as units, but by the people of all,, in their collective capacity, as citizens of the nation. The distinction is expressed, by the German writers, by the use of the two words "Staatenbund" and "Bundesstaat," the former denoting a league or con- federation of states, and the latter a federal government, or a state formed by means of a league or confederation. It is to the latter class that the American Union belongs." »• 1 Wools. Pol. Science, pp. 166-170. 32 THE UNITED STATES AND THE STATES. (Ch. 3 A Representative Republic. The United States is a federal republic. So also each of the states is a republic, and the constitution guaranties to each the continuance of republican government. The exact meaning of this phrase will be more fully considered in another place. At present it is sufificierit to say that a republic, as distinguished from a despotism, a monarchy, an aristocracy, or an oligarchy, is a government wherein the political pow- er is confided to and exercised by the people. It is a government "of the people, by the people, and for the people." It implies a practically unrestricted sufifrage, and the frequent interposition of the people, by means of the sufifrage, in the conduct of public affairs. The system of government in the United States and in the several states is distin- guished from a pure democracy in this respect, that the will of the people is made manifest through representatives chosen by them to ad- minister their affairs and make their laws, and who are intrusted with defined and limited powers in that regard, whereas the idea of a de- mocracy, non-representative in character, implies that the laws are made by the entire people acting in a mass-meeting or at least by uni- versal and direct yote. THE UNION INDESTRUCTIBLE. 15. The United States is an indissolnble union of indestrnctible states. No state has the right to secede from it. The Union could be terminated only by the agreement of the people or by revolution. There is, in this Union, no such thing as a right of secession, no right in any state to leave the Union and set up an independent govern- ment. The Union is permanent, and cannot be dissolved or disintegrat- ed by the action of any state or states. This was settled forever by the political events of the last half century, by the concurrence of the people, and by the courts, the final interpreters of the constitution. In the important case of Texas v. White '' we read as follows : "By the articles of confederation, the Union was declared to be perpetual. And when these articles were found to be inadequate to the exigencies of the country, the constitution was ordained 'to form a more perfect Union.' 87 7 Wall. 700, 19 L. Ed. 227. And see White v. Cannon, 6 "Wall. 44S, 18 U Ed. 923. See "States," Dec. Dig. (Key No.) § 17; Cent. Dig. §§ 17-21; "Unit- ei States," Deo. Dig. (Key No.) § i; Cent, Dig. § 1. § 16) NATURE OF THE FEDERAL CONSTITUTION. 33 It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual union made more perfect is not ?" Thus, when a state has once become a member of the Union, "there is no place for reconsideration or revocation, ex- cept through revolution, or through consent of the states." "But the perpetuity and indissolubility of the Union by no means implies a loss of distinct and individual existence, or of the right of self-govern- ment, by the states. Without the states in union there could be no such political body as the United States. Not only, therefore, can there be no loss of separate and independent autonomy to the states, through their union under the constitution, but it may not unreasonably be said that the preservation of the states and the maintenance of their governments are as much within the design and care of the constitution as the preser- vation of the Union and the maintenance of the national government. The constitution, in all its provisions, looks to an indestructible Union composed of indestructible states. When, therefore, Texas became one , of the United States, she entered into an indissoluble relation. All the obligations of perpetual union and all the guaranties of republican gov- ernment in the Union attached at once to the state. The act which consummated her admission into the Union was something more than a compact ; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other states was as complete, as perpetual, and as indissoluble as the union be- tween the original states. Considered, therefore, as transactions under the constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolute- ly null." NATURE OF THE FEDERAL CONSTITUTION. 16. Tbe constitution of the United States is not a compact, league, or treaty between the several states of the Union, bnt an or- ganic, fundamental laixr, ordained and adopted by the people of the United States, establishing a national federal govern- ment. Not a Compact or League. The system of government existing under the articles of confedera- tion was not a federal government, but a confederacy, in the sense of these terms as already explained. The articles constituted a league or treaty between the several states. They purported to have been BL.C!oisrsT.L.(3D.B3D.)— 3 34 THE UNITED STATES AND THE STATES. (Ch. 2 adopted by delegates from the individual states, and to establish a "firm league of friendship" between those states. They were supersed- ed by the constitution of the United States. This new government created a federal republic. It was not established by the states. It is not a league, treaty, convention, or compact between those states. It does not depend, either for its existence or its continuance, upon the consent of the states. The organic act, the constitution, was framed by delegates representing the several states in convention. But it was submitted to the consideration and acceptance of the people. The states did not act upon it. It was ratified and adopted by the people of the United States, who, acting for purposes of convenience within their respective states, appointed delegates for the sole purpose of deciding upon its adoption. Upon the ratification of the constitution, not mere- ly the states, but also the people, became parties to the fundamental act. This is also shown by the language of the preamble, which declares that "We, the People of the United States, in order to form a more perfect Union, * * * (Jq ordain and establish this constitution for the United States of America." This doctrine is sanctioned by the de- cisions of the supreme court, the final interpreter of the constitution, from the very beginning of the government, by the course of the exec- utive and legislative departments of the government in acting upon it and practically accepting it, and by the general consensus of opinion among the people, as shown by the events of our national history.^* An Organic Fundamental Law. The United States being a sovereign and independent nation, the constitution is its organic and fundamental law. By this is meant that the constitution is the supreme act of legislation, ordained by the people themselves, by which the sovereignty, nationality, and organic unity of the nation is declared, the foundations of its government laid and established, and the organs for the execution of its sovereign will creat- ed. It is moreover a basic or fundamental law, which is supreme and unvarying, and to which all other laws, ordinances, and constitutions, by whomsoever adopted, must be referred as the criterion to determine their validity. 3 8 1 story Const. §§ 306-372; Chisholm v. Georgia, 2 Dall. 419, 1 L. Ed. 440; Martin v. Hunter, 1 Wheat. 304, 4 L. Ed. 97; Cohen v. Virginia, 6 Wheat. 264, 5 L. Ed. 257 ; McCulloch r. Maryland, 4 Wheat. 316, 4 L. Ed. 579 ; Gib- bons V. Ogden, 9 Wheat. 1, 6 L. Ed. 23; Rhode Island v. Massachusetts, 12 Pet. 657, 9 L. Ed. 1233 ; Lane County v. Oregon, 7 Wall. 71, 19 L. Ed. 101 ; Texas V. White, 7 Wall, 700, 19 L. Ed. 227; U. S. v. Cruikshank, 92 U. S. § 17) THE CONSTITUTION AS A GEANT OF POWEKS. 35 THE CONSTITTITION AS A GRANT OF POWERS. 17. The federal oonstitntion contains a grant of powers to tbe gov- ernment whicli it creates, bnt is not eshaustive of the ponrers ^xrhich the people who maintain it might confer upon that government. The constitution contains a grant of certain enumerated powers to the federal government or to one or other of its departments. All other powers of government are reserved to the several states or to the people. Historically the United States, under its present govern- ment, is to be considered the successor of the confederation. And therefore the grant of powers to the United States by the constitution may be considered as an enlargement of, or addition to, the powers wielded by the central government under the articles of confederation. But it must not be forgotten that when the constitution was adopted there came into existence a nation (as distinguished from a league of states) which possessed absolute and unlimited inherent powers. The constitution should hence be considered as defining the powers and prerogatives which the sovereign people of the United States have deemed fit to confide to their federal government. The limits or scope of these powers might be either enlarged or restricted by further amendments to the constitution. But in the meantime, a certain meas- ure of power has been intrusted to the national government, and the re- mainder is reserved, to be exercised by the several states, or to remain in abeyance until the people shall see fit to delegate it to one or the other government. But from this principle there follows an important difference, in regard to the test of validity, between federal action and state action. This will be more fully considered when we come to speak of the nature and boundaries of legislative power. At present, it is sufficient to remark that if the validity of federal action is ques- tioned, the authority for it must be shown in the constitution. But if the question is as to the validity of state action, it is not the justification but the prohibition of it which must be pointed out.'" That is, state 542, 23 L. Ed. 588. See "Constitutional Law," Dec. Dig. (Key No.) § 21; Cent, Dig. § 31. 3 9 Brown v. Epps, 91 Va. 726, 21 S. E, 119, 27 L. R. A. 676, Eckerson v. City of Des Moines, 137 Iowa, 452, 115 N. W. 177 ; Straw v. Harris (Or.) 103 Pac. 777. See "Constitutional Law," Dec. Dig. (Key No.) §§ 26, 27, 48; Cent. Dig. §§ 30, 81, 46; "States," Dec. Dig. (Key No.) § 4; Cent. Dig. § 2; "Vnitei States," Dec Dig. (Key No.) § i; Cent. Dig. § 1. 36 THE UNITED STATES AND THE STATES. (Ch. 2 action is presumed to be well warranted until the objector has been able to point out the specific provision of either the federal constitution or the state constitution with which it is incompatible. THE CONSTITUTION AS THE SUPREME I.A'W. 18. The constitntion of the United States is the supreme laur of the land, and is equally binding upon the federal government and the states and all their officers and people. Any and all enact- ments which may be found to be in conflict with the consti- tution are null and void. The constitution itself declares that it shall be the supreme law of the land. This supremacy of the constitution means, first, that it must endure and be respected as the paramount law, at all times and under all circumstances, and in every one of its provisions, until it is amended in the mode which itself points out or is destroyed by revolution. iSec- ondly, it means that all persons are bound to respect the constitution as the supreme law. It is not merely a limitation upon legislative power, but is equally binding upon all the departments and officers of govern- ment, both state and national. Thirdly, it means that no act of legisla- tion which is contrary to its provisions is to be regarded or respected as law. A treaty which is in violation of the constitution would be null and void. So also would any act of congress which should be in excess of the legislative power granted to that body by the constitu- tion, or in disregard of any of its prohibitions. If the people of a state amend their constitution or adopt a new constitution, it must conform to the federal constitution. If it does not, it is of no effect. And every act of the legislature of every state must equally obey the mandates of the supreme law, at the risk of being declared a nullity.^" But this provision does not operate to make every clause of the federal consti- tution a part of the constitution of each state. It relates only to mat- ters wherein the general government assumes to control the states, ei- ther by the exercise of exclusive jurisdiction or by direct prohibition of certain kinds of legislative action by the states.*^ Moreover, acts *o Central of Georgia R. Co. v. Railroad Commission of Alabama (C. C.) 161 Fed. 925 ; Montgomery v. State, 55 Fla. 97, 45 South. 879 ; Snyder v. Baird Independent School Dist. (Tex.) Ill S. W. 723; C5om. v. International Har- vester Co. (Ky.) 115 S. W. 703. See "Constitutional Law," Deo. Dig. (Key No.) §§ 26, 27, 35-40; Cent. Dig. §§ 30, SI, SW2-38. *i In re Rafferty, 1 Wash. St 382, 25 Pac. 465. Subject to these limita- § 18) THE CONSTITUTION AS THE SUPREME LAW. 37 of congress passed in pursuance of the constitution are also the "su- preme law of the land." Hence any act of congress which is valid and constitutional is supreme as against any law of a state which conflicts with it. When a state statute and a federal statute operate upon the same subject-matter, and prescribe different rules concerning it, and the federal statute is one within the competency of congress to enact, the state statute must give way ; it is in effect no law, but an abortive at- tempt to exercise a power not possessed by the state legislature.*^ tlons, the mandates of the state constitution are the supreme law to the legis- lative, executive, and judicial departments of the state government. State v. Skeggs, 154 Ala. 249, 46 South. 268. See "Constitutional Law," Deo. Dig. (Key No.) §§ 26, g7, 37-40; Gent. Dig. §§ SO, 31, 36-38; "States," Dec. Dig. (Key No.) § Jt; Cent. Dig. § 2. 4 2 Gulf, G. & S. F. R. Co. V. Hefley, 158 U. S. 98, 15 Sup. Gt. 802, 39 L. Ed. 910 ; Columbia Wire Co. v. Freeman Wire Co. (C. C.) 71 Fed. 302 ; Tandy v. Elmore-Cooper Live Stock Commission Co., 113 Mo. App. 409, 87 S. W. 614; State V. Hanson, 16 N. D. 347, 113 N. W. 371 ; State v. Adams Express Co. (Ind.) 85 N. E. 966, 19 L. R. A. (N. S.) 93. See "States^" Dec. Dig. (Key No.) § 4; Cent. Dig. § 2; "Constitutional Law," Dec. Dig. (Key No.) § 38; Cent. Dig. § 36. 38 ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS. (Ch. 3 CHAPTER m. ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS. 19. Government of the Colonies. 20. The Continental Congress and the Articles of Confederation. 21. Establishment of the Federal Constitution. 22-24. Amendment of the Federal Constitution. 25-27. Establishment of State Constitutions. 28-29. Amendment of State Constitutions. GOVERNMENT OF THE COLONIES. 19. Previous to tbe War of Independence, the thirteen political com- mnnities which after^rards became the original states o£ the American Union irere colonies of Great Britain. Three forms of government obtained in the colonies: (a) Provincial. (b) Proprietary. (c) Charter. The first form of government was that which! prevailed in the prov- inces of New Hampshire, New York, New Jersey, Virginia, North Car- oHna, South Carolina, and Georgia. Under this system, a governor was appointed by royal commission, to act as the king's representative. He was invested with general executive power, a veto on local legisla- tion, and the power to establish courts and appoint judges. He was assisted by a council, also nominated by the king, which acted as the upper house of the local, legislature. The lower house consisted of a general assembly of representatives of the freeholders of the province. In the proprietary governments the direct executive power had been granted out by the crown to individuals, who held them in the nature of feudatory principalities, with all the inferior royalties and subordi- nate powers of legislation which formerly belonged to the owners of counties palatine, but still subject to the sovereignty of the parent coun- try. The proprietaries appointed the governors, and legislative assem- blies were convened under their authority. This form of government existed, at the time of the revolution, in Maryland, Pennsylvania, and Delaware. In three of the colonies, Massachusetts, Rhode Island, and Connect!- § 19) GOVERNMENT OF THE COLONIES. 39 which secured to them a larger measure of liberty, and indeed invested them with general powers of local self-government, subject only to the suzerainty of Great Britain and to certain particular restrictions which will be presently noticed. In the first-mentioned colony, indeed, the governor was appointed by the king ; but in the two others the govern- or, council, and assembly were annually chosen by the freemen, and all other ofScers were appointed by their authority. In all the colonies the people claimed the right to enjoy all the liber- ties, privileges, and immunities of British subjects, including those safeguards against royal or governmental oppression which had been gradually evolved in the course of English history, and the benefit of the common law, in so far as the same was applicable to their needs and their situation. They also claimed that, for all purposes of domes- tic and internal regulation, their own legislatures possessed entire and exclusive authority. In all matters of this sort, it was strenuously denied that parliament possessed the power to legislate directly for the colo- nies. England's financial straits having forced her to attempt the levy and collection of taxes in the colonies, by act of parliament without the concurrence of the local legislatures, the power to tax the people without representation on their part was stoutly resisted and denied, and this was one of the causes which led to the revolt of the colonies. On the other hand, it was always provided that the laws passed by the colonial legislatures should not be repugnant to, but, as near as might be, agreeable to, the laws and statutes of England, and this sometimes gave occasion to the royal government to set aside or destroy acts of the local legislatures. Again, there could be no full measure of self- government when the legislative functions of the popular assemblies were participated in by a governor and council not chosen by the suf- frages of the people. Moreover, the king and parliament never aban- doned the claim that they had authority to bind the colonies by legisla- tion in all cases whatsoever. Appeals lay to the king in council from the decisions of the highest courts of judicature in the colonies; and English statesmen contended that the royal prerogative was exercis- able in his colonial dependencies in many more particulars than the colonists were willing to concede.^ 1 See 1 Story, Const. §§ 159-197. 40 ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS. (Ch. 3 THE CONTINENTAL CONGRESS AND THE ARTICLES OF CONFED- ERATION. 20. Tbe first positive step totrards tlie Union was the formation of the Continental Congress, a revolutionary body, nrhich inaugu- rated the ivar, declared the independence of the colonies, and drafted certain articles of confederation. TJpon the ratifica- tion of these articles by the states, the tTnited States of Amer- ica came into being. The Continental Congress. The first national legislative assembly in the United States was the Continental Congress, which met in 1774, in pursuance of a recom- mendation made by Massachusetts and adopted by the other colonies. In this congress all the colonies were represented except Georgia. The delegates were in some cases chosen by the legislative assemblies in the states ; in others, by the people directly. The powers of this congress were undefined. The recommendation which led to it contemplated nothing more than a deliberation upon the state of public affairs. But by the acquiescence of the states and their people, it proceeded to take measures and pass resolutions which concerned the general welfare and had regard to the inauguration and prosecution of the war for independence. The first Continental Congress was succeeded in the following year, according to its own proposal, by another body chosen and organized in the same manner, in which all the states were repre- sented. This body provided for the raising and equipping of an army, intrusted the command in chief to General Washington, and framed, adopted, and promulgated the Declaration of Independence. The Con- tinental Congress was not authorized by any pre-existing law or or- dinance. Its acts and determinations were entirely outside the pale of ordinary law. It was not intended to be permanent, nor was it designed to be a national or confederate government. It was merely raised up, as an extraordinary institution, to meet the special exigencies of the situation of the colonies. It was regarded rather as an advisory body, wielding the war powers of the whole people, than as a government.^ The Articles of Confederation. When it became apparent that a war had been entered on which must result either in the destruction of American liberties or in the intro- duction to the world of a new nation, it was evident to all those inter- 2 On the Continental Congress, see 1 Story, Const. §§ 198-217; Pom. Const. Law, §§ 45-56; Rawle, Const, pp. 19-26; 1 Von Hoist, Const. Hist. pp. 1-5. § 20) AETICLES OF CONFEDEEATION. 41 ested in the conduct of public affairs that the revolutionary congress was at once too weak and too indefinite a bond between the states. It was necessary to devise a scheme of association which would insure vigor and faithful co-operation in the conduct of hostilities and would also more clearly apportion the powers of government between the states and the congress. The congress, to this end, prepared a series of "Articles of Confederation and Perpetual Union," and submitted them to the states for their approval and ratification in 1777. Before the close of the following year the articles had been ratified by all the states except Delaware and Maryland. Of these, the former gave in its adherence in 1779, and the latter in 1781. The articles of confederation provided that the style of the confed- eracy should be "The United States of America" ; that "each state re- tains its sovereignty, freedom, and independence, and every power, ju- risdiction, and right which is not by this confederation expressly dele- gated to the United States in congress assembled ;" that "the said states hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to or attacks made upon them or any of them on account of religion, sovereignty, trade, or any other pretense what- ever." The articles also provided for interstate rights of citizenship, the extradition of criminals, and the according of full faith and credit to the records and judicial proceedings of each state in all the others. They provided for an annual congress of delegates to be appointed in the several states, but reserving to each state the power to recall its delegates or any of them, at any time during the year, and to send others in their stead. Each state was required to "maintain" its own delegates. Each state was given one vote in "determining questions in the United States." Provision was made for freedom of speech and debate, and for the protection of members of the congress from arrest. The prohibitions laid upon the individual states were as follows : They could not send or receive embassies or make treaties, without the con- sent of congress, nor grant titles of nobility. They could not make treaties with each other, without the same consent. They could not lay imposts or duties which might interfere with treaties made by the United States. They could not, in time of peace, maintain armies or navies, except to such extent as congress should judge to be necessary for their defense. They could not engage in war, without the consent of congress, except in case of actual invasion or a threatened Indian depredation, nor commission ships of war, nor grant letters of marque 42 ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS. (Ch. 3 or reprisal, unless aftet the United States had declared war, and then only against the other belligerent and under congressional regulation, "unless such state be infested by pirates." "All charges of war and all other expenses that shall be incurred for the common defense or gen- eral welfare, and allowed by the United States in congress assemble;^, shall be defrayed out of a common treasury, which shall be supplied _by the several states, in proportion to the value of all land within each state granted to or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in congress assembled shall from time to time direct and appoint. The taxes for paying that proportion shall be laid and levied by the authority and direction of the legisla- tures of the several states within the time agreed upon by the United States in congress assembled." The powers confided to "the United States in congress assembled" were principally as follows: To de- termine on peace and war; send and receive ambassadors; enter into treaties and alliances; establish rules for prizes and captures on land ; to grant letters of marque and reprisal ; establish courts for the trial of piracies and felonies committed on the high seas ; to act as the last resort on appeal in all disputes and differences between the states on questions of boundary, jurisdiction, or other cause; to regulate the alloy and value of coin struck by their own authority or that of the re- spective states ; to fix the standard of weights and measures ; to reg- lilalte trade and manage affairs with the Indians ; to establish and reg- ulate post-offices from one state to another ; to appoint superior officers of the army and navy, and make rules for the government and regu- lation of the land and naval forces, and direct their operations ; to ap- point a committee, to sit in the recess of congress, to be denominated a "committee of the states," and consisting of one delegate from each state; to appropriate and apply money for defraying the public ex- penses; to borrow money and emit bills on the credit of the United States ; and to raise and maintain an army and navy. But in regard to nearly all these powers (and certainly all the most important of them), it was provided that they should never be exercised by the con- gress "unless nine states assent to the same." Defects of the Articles of Confederation. The articles of confederation were designed to bind the states to- gether in a "firm league," but they proved to be no better than a rope of sand. Washington spoke of the confederation as "a shadow without the substance" and described congress as a "nugatory body." The § 21) ESTABLISHMENT OF THE FEDERAL CON8TITUTIOX. 43 Union, as thus constituted, was dependent on the states. There was a central government, but it was not intrusted with the means of its own preservation. It had no executive; it had no courts; it had no power to raise suppHes. "Congress had hardly more than an ad- visory power at the best. It had no power to prevent or punish of- fenses against its own laws, or even to perform effectively the duties enjoined upon it by the articles of confederation. It alone could de- clare war, but it had no power to compel the enlistment, arming, or sup- port of an army. It alone could fix the needed amount of revenue, but the taxes could only be collected by the states at their own pleasure. It alone could make treaties with foreign nations, but it had no power to prevent individual states from violating them. Even commerce, for- eign and domestic, was to be regulated entirely by the states, and it was not long before state selfishness began to show itself in the regulation of duties on imports. In everything the states were to be sovereign, and their creature, the federal government, was to have only strength enough to bind the states into nominal unity, and only life enough to as- sure it of its own practical impotence." ° Congress had the power to coin money, but had no bullion. It could emit bills of credit, but had no funds to redeem them. Even the expenses of its own rnembers were to be defrayed by the states which sent them and which could recall them. In effect, all the powers granted to the general government by this constitution, if they were not self -executing, were entirely at the mercy of the individual states. It therefore became necessary to "form a more perfect Union" by establishing a constitution which should provide the central authority with adequate powers and adequate means for securing their enforcement.* ESTABLISHMENT OF THE FEDERAL CONSTITUTION. 21. The constitntion of the United States xvas framed hy a constitn- tional conTention called for the purpose of revising the arti- cles of confederation. Being submitted to the people, it was duly ratified by them, acting within their respective states, and became the fundamental law of the nation. The constitutional convention met in 1787, in pursuance of a reso- lution of congress, whereby it was recommended that a convention of 8 Johns. Am. Pol. 7. * On the articles of confederation, see 1 Story, CJpnst- §§ ,213-271^ Pom. Const Law, §§ 57-75; Rawle, Const, pp. 26-28; Federalist, Nos. 15-22. 44 ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS. (Ch. 3 delegates, who should be appointed by the several states, be held at Philadelphia, for the sole and express purpose of revising the articles of confederation, and reporting to congress and the several legislatures such alterations and provisions therein a:s should, when agreed to in congress and confirmed by the states, render the federal constitution adequate to the exigencies of government and the preservation of the Union. The convention was composed of delegates from all the states except Rhode Island. The resolution from which they derived their authority contemplated nothing more than a revision of the articles of confederation. But the convention was not long in determining that the whole scheme of government therein contained was so defective that it was beyond hope that the evils and inconveniences complained of by the people could be remedied by any process of patching or mend- ing the old constitution. In their judgment, what was needed was an- entirely new frame of government. And this they proceeded to con- struct. ° Technically, they exceeded their authority, and hence, in a strict sense, their proceedings may be said to have been extra-legal, or even revolutionary. But they did not assume to impose the result of their labors upon the nation as a binding organic law, but offered it as a constitution to be discussed and to be ratified and confirmed before it should become operative. As a group of citizens, they had the un- questionable right to suggest a new constitution of government. And' this was what in effect was done. The convention did not "report al- terations and provisions" to be made in the articles of confederation., The authority granted to them was never exercised. But in lieu there- of, they submitted to congress and the people a new frame of govern- ment, which was eventually accepted and confirmed. The draft of the constitution was laid before congress and by them submitted to the sev- eral states. It contained a provision that as soon as it should have been- ratified by nine of the states, it should become binding on those states. There ensued long, exhaustive, and acrimonious debates on the question' of its adoption. But in the course of a year eleven of the states had' ratified the constitution, and in September, 1788, congress made pro- vision for the first election of federal officers and the inauguration of the national government under the new constitution. On the 30th of B The framers of the constitution had before them three purposes: The con- struction of a new national government ; the establishment of a dual systemi of government with the distribution of iwwers between the general or national government and the local or state governments ; and the placing of certain immutable restrictions upon the powers of government to secure the Individ- §§ 22-24) AMENDMENT OF THE FEDERAL CONSTITUTION. 45 April, 1789, the first President of the United States took the oath of office, and the present government began the exercise of its functions as marked out in the constitution. The states of North CaroHna and Rhode Island were not in the Union from the beginning. The former ratified the constitution in 1789, and the latter in 1790,* AMENDMENT OF THE FEDERAL CONSTITUTION. 22. Amendments to the federal constitution may he proposed in two methods: (a) By congress. (b) By a convention called by congress for that purpose. 23. Amendments proposed in either method must be ratified by three- fourths of the states; and this may be done in either of tivo ■ways, according as one or the other mode may be proposed by congress, viz.: (a) By the legislatures of the states, acting as the representatives of the people. (b) By conventions held in each state for the purpose. 24. Fifteen amendments to the federal constitution have thus far been adopted. The fifth article of the constitution provides that "the congress, when- ever two-thirds of both houses shall deem it necessary, shall propose amendments to this constitution, or, on the application of the legisla- tures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all in- tents and purposes, as part of this constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the congress." Thus far, fifteen amendments have been made to the federal constitution. In every case the amendment has been proposed by congress and ratified by the states. No convention for revising the constitution, or proposing amendments to it, has ever been called. It should be noted that the article which contains the pro- vision for amendments also enacts that no state, without its consent, ual rights of the citizen. They attempted no restrictive legislation, but left the people of the United States free to make their own laws. South Carolina v. United States, 39 Ct. CI. 257, afdrmed in 199 U. S. 437, 26 Sup. Ct. 110, 50 li. Ed. 261. See "Constitutional Law," Dec. Dig. (Key No.) §§ 1-S, 10; Cent. Dig. §§ 1-1. « See 1 Story. Const. §§ 272-279. 46 ESTABLISHMENT AND AMENDMENT OP CONSTITUTIONS. (Ch. 3 shall be deprived of its equal suffrage in the senate. This is the one irrepealable clause of the constitution. And it is the provision- which, more than all others, secures to each state its rightful independence and autonomy. The First Ten Amendments. The ratification of the constitution of the United States was procured from the states with great difficulty. Objections were proffered to almost every one of its provisions. This arose partly from local pride and jealousies, and partly from a strong distrust of the central govern- ment about to be erected. The several states, in yielding their assent, proposed and strongly urged the addition of such amendments as would guaranty, on the one hand, the protection of personal rights and liber- ties against federal oppression, and on the other hand, the retention by the states of such powers as were not specifically granted to the general government. It is said that no less than 201 of such amendments were suggested in the different state conventions. So urgent was the call for a more explicit settlement of these questions that congress, at its first session, prepared and submitted to the states a series of twelve amend- ments to the constitution. Ten of these were ratified by eleven of the states during the next two years, that is, before the close of 1791. And these now constitute the first ten amendments. Nine of them are in- tended as a bill of rights. They guaranty to individuals protection (as against federal action only) in respect to those rights and immunities which were considered to be inadequately provided for in the constitu- tion itself.' The tenth establishes the principle that the government of the United States is one of delegated and limited powers, and that those powers which are not confided to it by the constitution, nor prohibited thereby to the states, are reserved to the states respectively or to the people.* The Eleventh Amendment. This amendment was adopted in consequence of the decision of the supreme court in Chisholm v. Georgia, 2 Dall. 419, 1 1,. Ed. 440, that 7 The object of the first eight amendments to the federal constitution was to incorporate Into it certain principles of natural justice which had become per- manently fixed in the jurisprudence of the mother country, and therefore the construction given to those principles by the English courts is cogent evidence of what they were designed to secure, and of the limitations which should be put upon them. Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. mi, 40 L. Ed. 819. S'ee "Constitutional Law," Deo. Dig. (Key No.) §§ 11-21; Cent. Dig. §§ 9-17. 8 1 Story, Const. § 303 ; 2 Story, Const. §§ 185T-1909. §§ 22-24) AMENDMENT OF THE FEDERAL CONSTITUTION. 47 a state of the Union was liable to be sued, like a private person, by a citizen of another state or of a foreign country. "That decision creat- ed such a shock of surprise throughout the country that, at the first meeting of congress thereafter, the eleventh amendment to the consti- tution was almost unanimously proposed, and was in due course adopt- ed by the legislatures of the states. This amendment, expressing the will of the ultimate sovereignty of the whole country, superior to all legislatures and all courts, actually reversed the decision of the su- preme court. It did not in terms prohibit suits by individuals against the states, but declared that the constitution should not be construed to import any power to authorize the bringing of such suits." * The Twelfth Amendment. This amendment, which introduces a change in the manner of elect- ing the President and Vice-President, was adopted in consequence of the difficulties which attended the election of 1801. In that year, when the electoral votes were counted, it was found that Jefferson and Burr had each received 73, and consequently, as the constitution then stood, the election was cast upon the house of representatives, although it was notoriously the intention of the electors that Jefferson should be Presi- dent and Burr Vice-President. Hence congress, in 1803, proposed the twelfth amendment, in lieu of the original third paragraph of the first section of the second article of the constitution, and it was duly ratified by the states. The amendment remedies the defect in the original pro- vision of the constitution by providing for the casting of separate bal- lots for the two offices. The Last Three Amendments. The thirteenth, fourteenth, and fifteenth amendments were ratified by the requisite majority of the states in 1865, 1868, and 1870, re- spectively. They were rendered necessary by the events of the civil war, and the desire to prevent the possibility of any similar conflict in the future. They were designed to insure the utter and final aboli- tion of slavery throughout the United States and all its dominions, and to secure to the newly emancipated race the same privileges of citizen- ship, and of personal and political rights, which were previously en- joyed by all others under the constitution. The legal effect of these amendments and of their specific provisions will be discussed in another place. ■ 8 Per Bradley, J., in Hans v. Louisiana, 134 U. S. 1, 10 Sup. Ct. 504, 33 L. Ed. 842. See "States," Dec. Dig. (Key No.) §§ 190, 191, 193 j Cent. Dig. §§ ns-m, 186. 48 ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS. (Ch. 3 President's Approval of Amendments. It has been made a question whether a proposed amendment is such an act of legislation as must be submitted to the President, before it goes, to the state legislatures, for his approval, and whether he has the right to veto it. Executive and legislative precedent has settled this question in the negative, and considerations drawn from the wording of the constitution lead to the same result.^" Nor is the question of great practical importance, because the concurrence of two-thirds of both houses of congress is required to the proposing of amendments, and the same majority would be sufficient to overrule the President's veto, should one be interposed. ESTABIes Moines, 137 Iowa, 452, il5 N. W. 177; People v. Calder, 153 Mich. 724, 117 N. W. 314, 126 Am. St. Rep. 550; Flint & F. Plank Road Co. v. Woodhull, 25 Mich. 99, 12 Am. Rep. 233 ; St. Louis & S. F. R. Co. V. Hadley (C. O.) 168 Fed. 317. See "Constitutional Law," Dee. Dig. (Key No.) § 70; Cent. Dig. § 131. § 42) ADJUDGING UNCONSTITUTIONALITr, 71 diciary. Consequently, if a given statute does not violate any provision of the constitution, and is within the general scope of legislative pow- er, the courts cannot adjudge it void merely because it appears to them to be impolitic, unjust, improper,', absurd, or unreasonable. To do so would not be an exercise of the judicial functions, but an usurpation of legislative powers. '° Neither can a statute be declared invalid on the ground of its being contrary to "public policy" ; because the public policy of a state can be found in, and is predicated upon, the constitu- tion and laws of the state and not elsewhere, and a statute constitu- tionally enacted gives expression to what the courts must consider the public policy of the state without regard to prior judicial utterances.*" 3 9 Halter v. Nebraska, 205 U. S. 34, 27 Sup. Ct. 419, 51 L. Ed. 696; Angle V. Chicago, St. P., M. & O. R. Co., 151 U. S. 1, 14 Sup. Ct. 240, 38 L. Ed. 55 ; State V. Skeggs, 154 Ala. 249, 46 South. 268 ; Spier v. Baker, 120 Oal. 370, 52 Pac. 659, 41 L. R. A. 196; Weigand v. District of Columbia, 22 App. D. C. 559 ; Lansburgh v. District of Columbia, 11 App. D. C. 512 ; Landberg v. City of Chicago, 237 111. 112, 86 N. E. 638, 21 L. R. A. (N. S.) 830, 127 Am. St. Rep. 319 ; People v. McBride, 234 111. 146, 84 N. E. 865, 123 Am. St. Rep. 82 ; Pitts- burgh, C, C. & St. L. R. Co. V. Hartford, 170 Ind. 674, 85 N. E. 362, 20 L. R. A. (N. S.) 461 ; Merchants' Union Barb Wire Co. v. Brown, 64 Iowa, 275, 20 N. W. 434 ; State v. Boldea, 107 La. 116, 31 South. 393, 90 Am. St. Rep. 280 ; In re Opinion of Justices, 103 Me. 506, 69 Atl. 627; Graham v. Roberts, 200 Mass. 152, 85 N. E. 1009 ; Reithmiller v. People, 44 Mich. 280, 6 N. W. 607 ; Sears v. Cottrell, 5 Mich. 251 ; Bobo v. Board of Levee Com'rs, 92 Miss. 792, 46 South. 819 ; State v. Henry, 87 Miss. 125, 40 South. 152, 5 L. R. A. (N. S.) 340 ; Evers t. Hudson, 36 Mont. 135, 92 Pac. 462 ; State v. Roberts, 74 N. H. 476, 69 Atl. 722, 16 L. R. A. (N. S.) 1115 ; People v. Common Council of City of Rochester, 50 N. Y. 525 ; People v. Draper, 15 N. T. 532 ; State v. JAnder- son (N. D.) 118 N. W. 22 ; Commonwealth v. Martin, 35 Pa. Super. Ct. 241 ; Kimball v. Grantsville City, 19 Utah, 368, 57 Pac. 1, 45 L. R. A. 628 ; Point Roberts Fishing Co. v. George & Barker Co., 28 Wash. 200, 68 Pac. 438 ; Jullen V. Model Building, Loan & Investment Co., 116 Wis. 79, 92 N. W. 561, 61 L. R. A. 668 ; State v. Northern Pac. R. Co. (Wash.) 102 Pac. 876. See "Comti- tutional Law," Dec. Dig. (Key No.) § 70; Cent. Dig. §§ 129-lSS. io United States v. Trans-Missouri Freight Ass'n, 166 U. S. 290, 17 Sup. Ct. 540, 41 L. Ed. 1007; Langmuir v. Landes, 113 111. App. 134; Kenneweg v. Allegany County Com'rs, 102 Md. 119, 62 Atl. 249 ; De Ferranti v. Lyndmark, 30 App. D. C. 417. See "Constitutional Law," Dec. Dig. (Key No.) § 70; Cent. Dig. § 131. 72 CONSTBUCTION AND INTEEPEETATION OF CONSTITUTIONS. (Ch. 4 SAME— NATURAL JUSTICE. 43. A statute cannot be declared invalid because it is opposed to tbe principles of natural jusieice or the supposed spirit of the con- stitution. It has sometimes been held that if a statute, in the judgment of the court, was contrary to fhe principles of natural justice, or the general spirit of the constitution, or the maxims of republican government, or the principles of right and liberty supposed to lie at the base of all institutions in a free country, it was the duty of the court to pronounce it invalid.*^ But the prevailing opinion at the present day is that there is no such power in the courts. The legislature of a state possesses the power to pass any and every law, on any and every subject, which does not amount to an encroachment upon the province of either of the other departments and is not in conflict with the express terms of either the federal or state constitution. Consequently, one who objects to the validity of an act of the legislature must be able to point out the specific prohibition, requirement, or guaranty which it violates. If this cannot be done, the act is valid. Natural justice, the principles of republican government, and the equal rights of men are supposed to be adequately guarantied, in this country, by the express provisions of the constitutions. If they are not, the constitutions are at fault ; but that is no limitation upon the legislative power.*^ And the spirit of 41 Ciltizens' Sav. & Loan Ass'n v. Topeka, 20 Wall. 655, 22 L. Ed. 455. And see Hain v. McClaws, 1 Bay (S. C.) 93, 98 ; People v. Board of Salem, 20 Mich. 452, 4 Am. Rep: 400. In Welch v. Wadsworth, 30 Conn. 149, 79 Am. Deo. 239, It was said: "The power of the legislature is not unlimited. They cannot entirely disregard the fundamental principles of the social compact. Those principles underlie all legislation, irrespective of constitutional restraints, and if the act in question is a clear violation of them, it is our duty to hold it abortive and void." See "Constitutional Law," Dec. Dig. (Key No.) §§ 39, 40; Cent. Dig. §§ 37, 38. 42 Kane v. Erie R, Co., 133 Fed. 681, 67 C. C. A. 653, 68 L. E. A. 788 ; Nation- al Council, Junior Order American Mechanics v. State Council, Junior Order United American Mechanics, 104 Va. 197, 51 S. E. 166 (affirmed 203 U. S. 151, 27 Sup. Ct. 46, 51 L. Ed. 132) ; Kerr v. Perry School Tp., 162 Ind. 310, 70 N. E. 246 ; Burrows v. Delta Transp. Co., 106 Mich. 582, 64 N. W. 501, 29 L. R. A. 468 ; Viemeister v. White, 179 N. Y. 235, 72 N. E. 97, 70 L. R. A. 796, 103 Am. St. Rep. 859 ; Sharpless v. Mayor of Philadelphia, 21 Pa. 147, 59 Am. Dec. 759 ; Block v. Schwartz, 27 Utah, 387, 76 Pac. 22, 65 L. R. A. 308, 101 Am. St. Rep. 971 ; State v. Peel Splint Coal Co., 36 W. Va. 802, 15 S. E. 1000, § 44) ADJUDGING UNCONSTITUTIONALITY. 73 the constitution cannot be appealed to except as it is manifested in the letter.* 3 SAME— FARTIAI. UNCONSTITUTIONAIilTT. 44. Where part of a atatnte is nnoonstitntional, but the remainder is valid, the parts will he separated, if passible, and that which is constitutional will be sustained. It frequently happens that some parts, features, or provisions of a statute are invalid, by reason of repugnancy to the constitution, while the remainder of the act is not open to the same objection. In such cases it is the duty of the court not to pronounce the whole statute un- constitutional, if that can be avoided, but, rejecting the invalid portions, to give effect and operation to the valid portions. The rule is that if the invalid portions can be separated from the rest, and if, after their excision, there remains a complete, intelligible, and valid statute, ca- pable of being executed, and conforming to the general purpose and intent of the legislature, as shown in the act, it will not be adjudged un- constitutional in toto, but sustained to that extent.** "The constitution- al and the unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand, though the last fall." *° But "when the parts of a statute are so mutually connected and dependent, as conditions, considerations, or compensations for each other, as to warrant a belief that the legis- lature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue independently, if some parts are unconstitutional and void, all the provisions which are 17 L. R. A. 385; Slack v. Jacob, 8 W. Va. 612. See "Constitutional ioto," Dec. Dig. (Key No.) § 39; Cent. Dig. § 37. * 3 Reeves v. Corning (C. C.) 51 Fed. 774; Forsythe v. City of Hammond (C. C.) 68 Fed. 774 ; People v. Draper, 15 N. Y. 532 ; Bertholf v. O'Reilly, 74 N. Y. 509, 30 Am. Rep. 323 ; State v. Wheeler, 25 Conn. 290 ; Praigg v. West- ern Paving & Supply Co., 143 Ind. 358, 42 N. E. 750 ; People v. Richmond, 16 Colo. 274, 26 Pac. 929 ; Sawyer v. Dooley, 21 Nev. 390, 32 Pac. 437. See "Con- stitutional Late," Dec. Dig. (Key No.) § 4O; Cent. Dig. § 38. n Presser v. Illinois, 116 U. S. 252, 6 Sup. Ct. 580, 29 L. Ed. 615 ; Mobile & O. R. Co. V. State, 29 Ala. 573 ; State v. Exnicios, 33 La. Ann. 253 ; People V. Kenney, 96 N. Y. 294. See "Statutes," Deo. Dig. (Key No.) § 64; Cent. Dig. §§ 58-66, 193. 45 Com. V. Hitchings, 5 Gray (Mass.) 482. See "Statutes," Dec. Dig. (Keif No.) § 64; Cent. Dig. §§ 58-66, 195. 74 CONSTRUCTION AND INTERPRETATION OB' CONSTITUTIONS. (Ch. 4 thus dependent, conditional, or connected must fall with them." *' But if the purpose of the statute "is to accomplish a single object only, and some of its provisions are void, the whole must fall, -unless sufficient remains to effect the object without the aid of the invalid portion." *'' And if the unconstitutional clause cannot be rejected without causing the statute to enact what the legislature never intended, the whole statute must be adjudged invalid.** SAME— PREAMBLE. 45. A statute urill not be declared' unconstitutional on account of a statement of the reasons for enacting it, or anything else, found in the preamble, when the objection does not appear in the body of the act.^s The preamble to a statute is an introductory clause which sets forth the reasons which have led to the enactment, by reciting the state of affairs intended to be changed, the evils designed to be remedied, the advantages sought to be procured or promoted by the new law, or the doubts as to the prior state of the law which it is meant to remove. It is thus an exposition of the motives of the legislature, and in some sense a key to the meaning of the terms which they have employed to express their avowed intention. But it is not an essential part of the statute, and is by no means found universally in modern laws. Hence if the;body of the act is free from constitutional objections, it will not be adjudged invalid by reason of anything found in the preamble, *6 Warren v. Mayor, etc., 2 Gray (Mass.) 84 ; Slauson v. City of Racine, 13 Wis. 898; W. U. Tel. Co. v. State, 62 Tex. 630; Eckhart v. State, 5 W.^Va. 515. See "Statutes," Deo. Dig. (Key No.) § 64; Cent. Dig. §§ 58-66, 195. 47 People V. Cooper, 83 111. 585. See "Statutes," Deo. Dig. {Key No.) § 64; Cent. Dig. §§ 58-66, 195. ' *8 Spraigue v. Thompson, 118 U. S. 90, 6 Sup. Ct. 988, 30 L. Ed.' 115. See "Statutes," Dec. Dig. {Key No.) § 64; Cent. Dig. §§ 58-66, 195. *e Lothrop v. Stedman, 42 Conn. 583, Fed. Cas. No. 8,519 ; Sutherland v. De Leon, 1 Tex. 250, 46 Am. Dec. 100. See "Statutes," Dec. Dig. {Key No.) § 210; Cent. Dig. § 287. 47) CONSTRUCTION OF CONSTITUTIONS. 75 SAME— EFFECT OF DECISION. 46. A decision against the constitutionality of a statute, rendered by a competent court in a proper case, makes the statute entirely null and inoperative so long as the decision stands. "An unconstitutional act is not a law. It confers no rights ; it im- poses no duties; it affords no protection; it creates no office. It is, in legal contemplation, as inoperative as though it had never been pass- ed." ^^ And if the statvite is adjudged unconstitutional in part, that part which is rejected will be a nullity. But in view of the fact that courts sometimes overrule their decisions on constitutional questions, it is necessary to observe that while a statute, once adjudged invalid by the court of last resort, will continue inoperative as long as that deci- sion is maintained, yet a later decision, sustaining the validity of the statute, will give it vitality from the time of its enactment, and there- after it is to be treated as having been constitutional from the begin- ning.^^ Notwithstanding some difference "of opinion, the better au- thorities hold that a repealing clause in an unconstitutional statute (re- pealing all laws and parts of laws in conflict with it or inconsistent with it) is equally invalid with the rest of the statute, and therefore leaves the former laws untouched.'*^ CONSTRUCTION OF CONSTITUTIONS— METHOD. .47. A constitution is not to be interpreted on narrow or technical principles, but liberally and on broad general lines, in order that it may accomplish the objects of its establishment and carry out the great principles of goTcrnment. A constitution "is intended for the benefit of the people, and must receive a liberal construction. A constitution is not to receive a tech- Bo Norton v. Shelby County, 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178. See Rutten v. Paterson, 73 N. J. Law, 467, 64 Atl. 5X3. See "Constitutional Law," Dec. Dig. (Key No.) § ^9; Cent. Dig. § 47. 51 pierce v. Pierce, 46 Ind. 86 ; McOollnm v. McConaughy (Iowa) 119 N. W. 539. But an act of the legislature which was unconstitutional at the time of its enactment will not obtain validity by a subsequent change in the con- stitution, authorizing such legislation. CJomstock Mill & Min. Co. v. Allen, 21 Nev. 325, 31 Pac. 434. See "Constitutional Law," Dec. Dig. (Key No.) §§ 24 49; Cent. Dig. §J 27, 47. B2 Campau v. City of Detroit, 14 Mich. 276 ; Tims v. State, 26 Ala. 165. 8ee "Statutes," Dec. Dig. (Key No.) § 168; Cent. Dig. § 2U. 76 CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS. (Ch. 4- nical construction, like a common-law instrument or a statute. It is to be interpreted so as to carry out the great principles of government, not to defeat them." °' Constitutions, it is said in another case, "declare the organic law of a state ; they deal with larger topics and are couched in broader phrase than legislative acts or private muniments. They do not undertake to define with minute precision in the manner of the lat- ter, and hence their just interpretation is not always to be reached by the application of similar methods." °* SAME— INTENT TO BE SOUGHT. 48. It Is a cardinal rule In tbe interpretation of constltntions that the instrument must he bo construed as to give effect to the in- tention of the people, who adopted it. 49. This intention is to he sought in the constitution itself, and the apparent meaning of the words employed is to he taken as ex- pressing it, except in cases where that assumption uronld lead to absurdity, ambiguity, or contradiction. Where the meaning shown on the face of the words is definite and intelligible, the courts are not at liberty to look for another meaning, even though it would seem more probable or natural, but they must assume that the constitution means just what it says. "Whether we are considering an agreement between parties, a statute, or a constitution, with a view to its interpretation, the thing we are to seek is the thought which it expresses. To ascertain this, the first resort in all cases is to the natural signification of the words employed, in the order and gram- matical arrangement in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning, which involves no absurdity and no contradiction between different parts of the same writing, then that meaning apparent upon the face of the instrument is the one which alone we are at liberty to say was 53 Morrison v. Bachert, 112 Pa. 322, 5 Atl. 739 ; State v. Bryan, 50 Fla. 293, 39 South. 929; Cumberland Telephone & Telegraph Co. v. Hickman, 33 Ky. Law Kep. 730, 111 S. W. 311 ; Spratt v. Helena Power Transmission Co., 37 Mont. 60, 94 Pac. 631 ; State t." Millar, 21 Okl. 448, 96 Pac. 747 ; Brummjtt V. Ogden Waterworks Co., 33 Utah, 289, 93 Pac. 828 ; Nona Mills Co. v. Win- gate (Tex. Civ. App.) 113 S. W. 182. But see State v. City of New Orleans, McGloin (La.) 47. See "Constitutional Law," Dec. Dig. {Key No.) §§' 11-21; Cent. Dig. §§ 9-11. 64 Houseman v. Com., 100 Pa. 222. See "Constitutional Law," Dec, Dig. {Key No.) §§ 11-21; Cent. Dig. §§ 9-n. |§ 48-49) CONSTRUCTION OF CONSTITUTIONS. 77 intended to be conveyed. In such a case, there is no room for construc- tion. That which the words declare is the meaning of the instrument, and neither courts nor legislatures have the right to add to, or take away from, that meaning." " But if the words of the constitution, thus taken, are devoid of meaning, or lead to an absurd conclusion, or are contradictory of other parts of the constitution, then it cannot be presumed that their prima facie import expresses- the real intention. And in that case, the courts are to employ the process of construction to arrive at the real intention, by taking the words in such a sense as will give them a definite and sensible meaning, or reconcile them with the rest of the instrument. And this sense is to be determined by com- paring the particular clause with other parts of the constitution, by •considering the various meanings, vernacular or technical, which the words are capable of bearing, and by studying the facts of contempo- rary history and the purpose sought to be accomplished, and the bene- fit to be secured, or the evil to be remedied, by the provision in ques- tion."* Subsidiary Rules of Constitutional Construction.'^'' 1. The construction of a constitutional provision is to be uniform."' 2. In case of ambiguity, the whole constitution is to be examined, in order to determine the meaning of any part, and the construction is 55 Newell V. People, 7 N. Y. 9, 97 ; City of Beardstown v. City of Virginia, 76 III. 34 ; City of SpringHeld v. Edwards, 84 111. 626 ; Hills v. City of Chicago, 60 111. 86 ; People v. May, 9 Colo. 80, 10 Pac. 641 ; Jackson v. State, 87 Md. 191, 39 Atl. 504; Donaldson v. Harvey, 3 Har. & McH. (Md.) 12; Western Union Tel. Co. v. Louisiana Railroad Commission, 120 La. 758, 45 South. 598 ; Manthey v. Vincent, 145 Mich. 327, 108 N. W. 667 ; Attorney General v. State Board of Assessors, 143 Mich. 73, 106 N. W. 698 ; State v. Eldredge, 27 Utah, 477, 76 Pac. 337 ; Rasmussen v. Baker, 7 Wyo. 117, 50 Pac. 819, 30 L. R. A. 773; Keller v. State (Tex. Cr. App.) 87 S. W. 669, 1 L. R, A. (N. S.) 489; Powell V. Spackman, 7 Idaho, 692, 65 Pac. 503, 54 L. R. A. 378 ; Boca Mill Co. V. Curry, 154 Cal. 326, 97 Pac. 1117. See "Constitutional Law," Dec. Dig. ■{Key No.) § 13; Cent. Dig. §§ 9, 10. 6 6 People V. Potter, 47 N. Y. 375; Taylor v. Taylor, 10 Minn. 107 (Gil. 81); State V. Cook, 178 Mo. 189, 77 S. W. 559; Smith v. Grayson County, 18 Tex. . R. A. (N. S.) 268. See "Constitutional Laio," Dec. Dig. (Key No.) §§ 26, 80; Cent. Dig. §§ 30, US-W. 37 In re Slebert, 61 Kan. 112, 58 Pac. 971. See "Constitutional Lww," Deo. Dig. (Key No.) § 80; Cent. Dig. § U6. 3 8 Kelly V. Cowan, 49 Wash. 606, 96 Pac. 152; State v. Hageman, 123 La. 802, 49 South. 530. Judicial amendment of a statute, made by interpolating or adding words thereto which create a county would unlawfully invade the functions of the legislature, although the court may believe, from reading^ the statute, that the legislature intended to create such a county. Holmberg V. Jones, 7 Idaho, 752, 65 Pac. 563. See "Constitutional Law," Dec. Dig. (Key No.) § 70; Cent. Dig. §§ 129-132, 137. 3 9 People V. Lawrence, 36 Barb. (N. T.) 177; Tyson v. Washington County,. 78 Neb. 211, 110 N. W. 634, 12 L. R, A. (N. S.) 350 ; Kadderly v. City of Port- land, 44 Or. 118, 74 Pac. 710. See "Constitutional Law," Dec. Dig. '..Key No.} § 70; Cent. Dig. § 131. § 54) LIMITATIONS ON THREE DEPARTMENTS OF GOVERNMENT. 93 Further, the courts have no authority or control over the legislature in respect to the holding of its sessions/" or the discipline or expul- sion of a member of the legislative body; *^ neither can they lawfully enjoin the passage of a statute or ordinance.*'' Another application of the main rule teaches us that legislative pow- ers cannot be imposed upon the judicial department, nor can the judges be charged with nonjudicial duties.*^ Thus it is not competent to vest the courts with power as to including or excluding territory from the limits of cities ; ** or to require them to supervise the plan or construc- tion of street railways or telephone lines in the streets of municipali- ties ; *° or to fix rates to be charged by public service corporations ; *' or to fix the monthly salary of a court officer.*^ Same — Levy and Collection of Taxes. Within constitutional limits the power of the legislature in matters of taxation is supreme,*' and its action cannot be revised or annulled io French v. State Senate, 146 Cal. 604, 80 Pac. 1031, 69 L. R. A. 556. See "Constitutional Law," Dec. Dig. (Key No.) § 70; Cent. Dig. § 129. *i French v. State Senate, 146 Cal. 604, 80 Pac. 1031, 69 L. R. A. 556. See "Constitutional Law," Dec. Dig. (Key No.) § 70; Cent. Dig. § 129: 42 Missouri & K. I. R. Co. v. Olathe (C. C.) 156 Fed. 624. See State v. Gates, 190 Mo. 540, 89 S. W. 88J, 2 L. R. A. (N. S.) 152. See "Injunction," Dec. Dig. (Key No.) § S4; Cent. Dig. § 1.54; "Constitutional Law," Dec. Dig. (Key No.) § 70; Cent. Dig. § 129. 43 Commonwealth v. Collier, 213 Pa. 138, 62 Atl. 567. See Daily Register Printing & Publishing Co. v. City of New York (Sup.) 3 N. Y. Supp. 669 (judges may be authorized and required to designate newspapers for the publication of court calendars and legal notices). And see In re Macfarland, 30 App. D. C. 365; Scoville v. Brock, 81 Vt. 405, 70 Atl. 1014. See "Constitutional Law," Dec. Dig. (Key No.) § 61; Cent. Dig. §§ 103-107. 44 Glaspell V. Jamestown, 11 N. D. 86, 88 N. W. 1023. See "Constitutional Law," Dec. Dig. (Key No.) § 61; Cent. Dig. §§ 103-107. 4 5 Appeal of Norwalk St. R. Co., 69 Conn. 576, 37 Atl. 1080, 39 L. R. A. 794 ; New York & N. J. Tel. Co. v. Borough of Bound Brook, 66 N. J. Law, 168, 48 Atl. 1022. But see City of Zanesville y. Zanesville Tel. & Tel. Co., 64 Ohio St. 67, 59 N. E. 781, 52 L. R. A. 150, 83 Am. St. Rep. 725. See "Constitutional Law," Dec. Dig. (Key No.) § 61; Cent. Dig. §§ 103-107. 46 Colorado Fuel & Iron Co. v. Southern Pac. R. Co., 101 Fed. 779, 42 C. C. A. 12. But see In re Janvrin, 174 Mass. 514, 55 N. B. 381, 47 L. R. A. 319. See "Constitutional Law," Dec. Dig. (Key No.) § 61; Cent. Dig. §§ 103-107. 47 Stevens v. Truman, 127 Cal. 155, 59 Pac. 397. See "Constitutional Law," Dec. Dig. (Key No.) § 61; Cent. Dig. §§ 103-107. 48 Street v. City of Columbus, 75 Miss. 822, 23 South. 773. See "Taxation," Deo. Dig. (Key No.) § 25; Cent. Dig. § 59. 94 THE THREE DEPARTMENTS OF GOVERNMENT. (Gh. 5 by the judicial department.*" Nor can the courts be authorized or re- quired by statute to levy and collect taxes, as that is a legislative func- tion and not judicial."" An exception, however, exists in the case of inheritance taxes, since their collection is necessarily incident to the settlement of estates in the probate courts, and hence to charge those courts with their assessment and collection is not imposing nonjudicial duties upon them.^^ Same — As Respects the Executive. There are but few conceivable cases in which the judicial department could usurp purely executive functions or attempt the performance of purely executive acts. But the importance of the principle, in this con- nection, is discovered in the rule that the courts must arrogate no super- vision or control over the executive department in the discharge of its proper duties. The judiciary does not possess, and cannot exercise, any revisory power over executive duties."^ Thus the courts have no au- thority to require the chief executive of the state by mandamus, or for- bid him by injunction, to perform any executive act which is political in its character, or which involves the exercise of judgment or discre- tion. At the same time, it is generally (though not universally) conced- ed that if the duty sought to be- enforced is one within the scope of the governor's powers, but is merely ministerial in its nature, not political and not involving the exercise of judgment or discretion, but simply obedience to the commands of positive law, then, if the rights of pri- vate persons depend upon the performance of this duty by the execu- *o State V. Roberson, 136 N. C. 587, 48 S. E. 595. See Margolies v. Atlantic City, 67 N. J. Law, 82, 50 Atl. 367. See "Constitutional Law," Dec. Dig. (Key No.) § 70; Gent. Dig. § 129; "Taxation," Dec. Dig. (Key No.) § 25; Cent. Dig. §59. 50 Hardenburgh v. Kidd, 10 Cal. 402 ; Fleming v. Trowsdale, 85 Fed. 189, 29 C. C. A. 106 ; Muhlenburg County v. Morehead, 46 S. W. 484, 20 Ky. Law Eep. 376 ; City of Baltimore v. Bonaparte, 93 Md. 156, 48 Atl. 735 ; Mackin v. Taylor County Court, 38 W. Va. 338, 18 S. B. 632. And see Vaughn v. Harp, 49 Ark. 160, 4 S. W. 751 ; Ex parte Griffiths, 118 Ind. 83, 20 N. E. 513, 3 L. R. A. 398, 10 Am. St. Rep. 107. Compare Hubbert v. Campbellsvllle Lumber Co., 191 U. S. 70, 24 Sup. Ct. 28, 48 L. Ed. 101. See "Constitutional Law," Dec. Dig. (Key No.) § 61; Cent. Dig. § i07. 61 Union Trust Co. v. Wayne Probate Judge, 125 Mich. 487, 84 N. W. 1 101 ; Nunnemacher v. State, 129 Wis. 190, 108 N. W. 627, 9 L. R. A. (N. S.) 121. See "Constitutional Law," Dec. Dig. (Key No.) § 7.}. 62 Astrom v. Hammond, 3 McLean, 107, Fed. Cas. No. 596. See "Constitu- tional Law," Dec. Dig. (Key No.) §§ ll-U; Cent. Dig. §§ 133-137. § 54) LIMITATIONS ON THREE DEPARTMENTS OP GOVERNMENT. 95 tive, the writ of mandamus may issue to compel him."' The rule set- tled by the United States courts in this regard is that they "will not interfere by mandamus with the executive officers of the government [such as the heads of departments or bureaus] in the exercise of their ordinary official duties, even where those duties require an interpreta- tion of the law, the courts having no appellate power for that purpose. But when they refuse to act in a case at all, or when, by special statute or otherwise, a mere ministerial duty is imposed upon them, that is, a . service which they are bound to perform without further question, then, if they refuse, mandamus will be issued to compel them." ^* For similar reasons the courts should not be invested with powers nor required to perform duties which are properly executive in their nature, such as the appointment of public officers.''^ But the "Tor- is 3 Harpendlng v. Haight, 39 Cal. 189, 2 Am. Rep. 432; State v. Fletcher, 39 Mo. 388 ; People v. Bissell, 19 111. 229, 68 Am. Dec. 591 ; People v. Yates, 40 111. 126 ; State v. Chase, 5 Ohio St. 528 ; Stein v. Morrison, 9 Idaho, 426, 75 Pac. 246 ; People v. Board of State Auditors, 42 Mich. 422, 4 N. W. 2T4 ; State V. Smith, 23 Mont. 44, 57 Pac. 449; State v. .Savage, 64 Neb. 684, 90 N. W. 898 ; Slack v. Jacob, 8 W. Va. 612 ; Cooke v. Iverson (Minn.) 122 N. W. 251. See "Constitutional Law," Dec. Dig. (Key No.) § 73; Cent. Dig. §| 134, i33; "Mandamus," Dec. Dig. (Key No.) §§ 63-121; Cent. Dig. §§ 127-255. Si United States v. Black, 128 U. S. 40, 9 Sup. Ct. 12, 32 L. Ed. 354 ; Mar- bury V. Madison, 1 Cranch, 137, 2 L. Ed. 60 ; United States v. Schurz, 102 U. S. 378, 26 L. Ed. 167 ; Gaines v. Thompson, 7 Wall. 347, 19 L. Ed. 62 ; Secre- tary V. McGarrahan, 9 Wall. 298, 19 L. Ed. 579 ; Noble v. Union River Logging R. Co., 147 U. S. 165, 13 Sup. Ot. 271, 37 L. Ed. 123 ; Board of Liquidation v. McComb, 92 U. S. 531, 23 L. Ed. 623 ; U. S. v. Blaine, 139 U. S. 306, 11 Sup. Ct. 607, 35 L. Ed. 183 ; Decatur v. Paulding, 14 Pet. 497, 10 L. Ed. 559 ; La Abra Silver Min. Co. v. United States, 175 U. S. 423, 20 Sup. Ct. 168, 44 L. Ed. 223 ; Missouri Drug Co. v. Wyman (C. C.) 129 Fed. 623 ; Taylor v. Kercheval (C. C.) 82 Fed. 497. Mandamus will not lie to compel the secretary of state to pay over to a private citizen money collected by the United States from a foreign government, under arbitration or by diplomatic intervention, as in- demnity for injuries Inflicted by such foreign power or its subjects upon such citizen. There is no element of contract between the latter and the United States, nor is the fund held In trust for him In such sense that he can require its payment to him by process of law. United States v. Bayard, 4 Mackey (D. C.) 310. See "Constitutional Law," Dec. Dig. (Key No.) § 73; Cent. Dig. § 134; "Mandamus," Dec. Dig. (Key No.) §§ 63-121; Cent. Dig. §§ 127-235. 6 State V. Brill, 100 Minn. 499, 111 N. W. 294 ; Schwarz v. Dover, 68 N. J. Law, 576, 53 Atl. 214. But compare Wilkison v. Board of Children's Guard- ians, 158 Ind. 1, 62 N. E. 481 ; Ross v. Board of Chosen Freeholders of Essex County, 69 N. J. Law, 291, 55 Atl. 310. See State v. Neble (Neb.) 117 N. W. 723, 19 L. R. A. (N. S.) 578. See "Constitutional Law," Dec, Dig. (Key No.) §§ 63, 74; Cent. Dig. §§ IO8-II4, 124. 96 THE THREE DEPARTMENTS OF GOVERNMENT. (Ch. 5 rens system" of registering land titles, with provisions for proceed- ings in the courts, is not open to this objection, since the various steps to be taken involve the exercise of judicial powers rather than ad- ministrative.'** ADMINISTRATIVE BOARDS, OFFICERS, AND COMMISSIONS. 55. Though a legislative body cannot delegate its power to mahe laws, yet, having enacted statutes, it may invest executive officers or boards or commissions created for the purpose vrith authori- ty to make rules and regulations for the practical administra- tion of such statutes in matters of detail and to enforce the same, and also to determine the existence of the facts or con- ditions on which the application of the law depends. But such administrative agencies cannot make the violation of, their regulations punishable as a criminal offense. Legislative functions cannot be delegated. But since the duty of carrying the laws into effect devolves upon executive and administra- tive officers, there is no constitutional objection to clothing them with authority to make such regulations and orders as are necessary to the practical working of the law, to secure its execution according to the purpose and intention of the legislature, and to the efficient adminis- tration of their offices. °' /Again, although the vitality of a statute can- not be made to depend on either the will or discretion of the executive department, it is proper to leave to the officers charged with its ad- ministration the duty of determining the existence of the particular facts or conditions on which, by the terms of the law itself, its applica- tion or enforcement is made to depend.^* But even this measure of 58 Robinson v. Kerrigan, 151 Cal. 40, 90 Pac. 129, 121 Am. St. Rep. 90 ; People V. Crissman, 41 Colo. 450, 92 Pac. 949. See "Constitutional Law," Dec. Dig. (Key No.) § iJf; Cent. Dig. § lU- 6 7 Union Bridge Co. v. United States, 204 U. S. 364, 27 Sup. Ct. 367, 51 L. Ed. 523 ; Boske v. Comingore, 177 U. S. 459, 20 Sup. Ct. 701, 44 L. Ed. 846 ; Trustees of Village of Saratoga Springs v. Saratoga Gas, Electric Light & Power Co., 191 N. Y. 123, 83 N. E. 693, 18 L. R. A. (N. S.) 713 ; State v. Chiit- teiiden, 127 Wis. 468, 107 N. W. 500. While department regulations duly pro- mulgated have the force of law, in a limited sense, they cannot enlarge or re- strict the liability of an officer on his bond. Meads v. United States, 81 Fed. 684, 26 C. C. A. 229. See "Constitutional Law," Dec. Dig. (Key No.) § 62; Cent. Dig. §§ H-102. 6 8 Village of Little Chute v. Van Camp, 136 Wis. 526, 117 N. W. 1012; State V. Railroad Commission, 137 Wis. 80, 117 N. W. 846 ; State v. Thompson, 160 Mo. 333, 60 S."W. 1077, 54 L. R. A. 950, 83 Am. St. Rep. 468; State. v. Chitten- § 55) ADMINISTRATIVE BOARDS, OFFICERS, AND COMMISSIONS. 97 authority must be confided to governmental agencies ; it cannot be dele- gated to purely private and unofficial persons or bodies."* And al- though the legislature may secure obedience to the rules and regula- tions so made by administrative officers by declaring their violation to be a punishable offense,'" yet no such power resides in the officers who make the rules. *^ There is a marked and increasing tendency to leave more and more of what may be called the detail of legislation to such officers and commissions, the legislature settling the general policy and outline of the laws on a given subject and confiding to administrative agencies the work of erecting the machinery necessary for their practical opera- tion and their application to particular cases. Thus the legislatures have created (and the courts have sustained) commissions to regulate and control the operation of public service corporations in general,'^ and den, 127 Wis. 468, 107 N. W. 500 ; Southern Pac. C5o. v. U. S. (C. O. A.) 171 Fed. 360. Examples of the application of this rule are seen in the provisions of certain of the tariff acts, giving the President povrer to enforce or suspend the law with reference to the products of certain foreign countries, on as- certaining that reciprocal trade concessions are given or withheld, as the case may be (see Field v. Clark, 143 U. S. 649, 12 Sup. Ct. 495, 36 L. Ed. 294), and in the provision of a tariff law excluding teas of "inferior quality" from this country, but leaving the final determination of the question In respect thereto to the customs officers. Cruikshank v. Bidwell (O. C.) 86 Fed. 7, af- firmed 176 U. S. 73, 20 Sup. Ct. 280, 44 L. Ed. 377. Also in laws which re- quire licensing authorities to determine the good character of an applicant as preliminary to granting him a license. State v. Thompson, supra. See "Constitutional Law," Dec. Dig. (Key No.) §§ 59-66; Cent. Dig. §§ 89-122. 6 9 Johnstown Cemetery Ass'n v. Parker, 28 Misc. Rep. 280, 59 N. X. Supp. 821 ; State v. Holland, 37 Mont. 393, 96 Pac. 719. But see People v. District Court of Second Judicial Dist., 32 Colo. 15, 74 Pac. 896, sustaining a law which gives to the state central committee of a political party exclusive jurisdiction to determine factional disputes within the party. See "Constitutional Law," Dec. Dig. (Key No.) § 64; Cent. Dig. §§ 91, 92. sopierce v. Doolittle, 130 Iowa, 333, 106 N. W. 751, 6 L. E. A. (N. S.) 143 ; .United States v. Breen (C. C.) 40 Fed. 402; United States v. Ormsbee (D. C.) (74 Fed. 207; U. S. v. Grimaud (D. O.) 170 Fed. 205. But compare United States V. Matthews (D. C.) 146 Fed. 306. See "Constitutional Law," Deo. Dig. (Key No.) §§ 59-66; Cent. Dig. §§ 89-122. 61 Johnson v. United States, 26 App. D. O. 128. See "Constitutional Law," Dec. Dig. (Key No.) § 77. 62 Winchester & S. R. Co. v. Commonwealth, 106 Va. 264, 55 S. E. 692; State V. Wagener, 77 Minn. 483, 80 N. W. 633, 46 L. R. A. 442, 77 Am. St. Rep. 698. See "Constitutional Law," Dec. Dig. (Key No.) §§ 59-66; Cent. Dig. §§ 89-122. Bl.Const.I..(3d.Ed.)— 7 98 THE THREE DEPARTMENTS OF GOVERNMENT. (Ch. 5 railroads in particular.** Whether such a commission has power to establish transportation rates, or can be vested with authority to fix a reasonable rate for given service on finding that the carrier's rate is unreasonable, is not yet fully settled. Decisions in some of the states favor the constitutionality of such a grant of power; °* but the fed- eral courts hold otherwise. °^ So also we find statutes authorizing commissioners of gas and electricity to fix maximum rates therefor to be charged by public service corporations."' And the legislature has power to delegate to civil service commissioners the authority to enact and enforce rules governing the appointment and promotion of public officers, their tenure of office, and their removal therefrom; for as there is no title or property in a public office, the removal of the officer is not a judicial act.®^ The same principle applies to the laws, now so 6 3 St. Louis, I. M. & S. R. Co. V. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061 ; St. Louis, I. M. & S. R. Co. v. Neal, 83 Ark. 591, 98 S. W. 958 ; State V. Missouri Pac. R. Co., 76 Kan. 467, 92 Pac. 606 ; Attorney General v. Old Colony R. Co., 160 Mass. 62,. 35 N. E. 252, 22 L. R. A. 112; State v. At- lantic Coast Line R. Co. (Fla.) 47 South. 969. See "Constitutional Law," Dec. Dig. (Key No.) §§ 59-66; Cent. Dig. §§ 89-122; "Railroads," Deo. Dig. (Key 'No.) § 9; Cent. Dig. §§ 12-19. 6 4 Southern R. Co. v. Railroad Commission of Indiana, 42 Ind. App. 90, 83 N. E. 721 ; Minneapolis, St. P. & S. S. M. p. Co. v. Wisconsin Railroad Com- mission, 136 Wis. 146, 116 N. W. 905, 17 L. R. A. (N. S.) 821. See "Constitit- tional Law," Dec. Dig. (Key No.) §§ 54, 62; Cent. Dig. § 100. 6 5 McChord v. Louisville & N. R. Co., 183 U. S. 483, 22 Sup. Ct. 165, 46 L. Ed. 289; Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S.-418, 10 Sup. Ct. 462, 33 L. Ed. 970 ; Central of Georgia R. Co. v. Alabama Railroad Commission (C. C.) 161 Fed. 925. See Southern Pac. Co. v. Bartine (C. C.) 170 Fed. 725. The Interstate Commerce Commission, while it may determine judicially that an existing transportation rate charged by a carrier is unreasonable, has no authority to prescribe a rate, either maximum, minimum, or absolute, to con- trol in the future and enforce its order by proceedings in mandamus. In- terstate Commerce Commission v. Lake Shore & M. S. R. Co., 202 U. S. 613, 26 Sup. Ct. 766, 50 L. Ed. 1171; Interstate Commerce Commission v. Alabama Midland R. Co.,, 168 U. S. 144, 18 Sup. Ct. 45, 42 L. Ed. 414; Interstate Com- merce Commission v. Cincinnati, N. O. & T. P. R. Co., 167 U. S. 479, 17 Sup; Ct. 896, 42 L. Ed. 243. See "Constitutional Law," Dec. Dig. (Key No.) §§ 54, 62; Cent. Dig. § 100. 66 Trustees of Village of Saratoga Springs v. Saratoga Gas, Electric Light & Power Co., 191 N. Y. 123, 83 N. E. 693, 18 L. R. A. (N. S.) 713. See "Consti- tutional Law," Dec. Dig. (Key No.) §§ 50, 61, 62. , 6 7 People V. City of Chicago, 234 111. 416, 84 N. E. 1044; People v. Kipley, 171 111. 44, :^9.Br. B. 229, 41 L. R. A. 775; , Croly v. Board of Trustees of City of Sacramento, 119 Cal. 229, 51 Pac. 323. See People v. Cram, 164 N. Y. 166,. § 55) ADMINISTRATIVE BOARDS, OFFICERS, AND COMMISSIONS. 99> commonly in force, giving to boards or commissions control over the licensing of physicians, dentists, pharmacists, locomotive and steam en- gineers, plumbers, saloon keepers, and other persons, and authorizing them to determine the qualifications of applicants and to revoke their licenses for causes stated in the statute but which are to be investigated and determined in the particular instance by the licensing board."* So also of the authority vested in boards of health and quarantine offi- cers."' Again, the legislature may delegate its control over streets, roadlways, parks, and boulevards to local administrative boards." And many other illustrations could be cited from the reports.''^ 58 N. E. 112. Compare Christy v. Kingfisher, 13 Okl. 585, 76 Pac. 135. See "Constitutional Law," Dec. Dig. (Key No.) § 62; Gent. Dig. § 99. «8 Arwine v. California Board of Medical Examiners, 151 Cal 499, 91 Pac. 319 ; Appeal of Moynlhan, 75 Conn. 358, 53 Atl. 903 ; Spiegler v. City of Chi- cago, 216 111. 114, 74 N. E. 718 ; Spurgeon v. Rhodes, 167 Ind. 1, 78 N. E. 228 ; Smith V. State Board of Medical Examiners (Iowa) 117 N. W. 1116 ; Kennedy V. State Board of Registration, 145 Mich. 241, 108 N. W. 730 ; State v. Doerring, 194 Mo. 398, 92 S. W. 489 ; France v. State, 57 Ohio St. 1, 47 N. E. 1041 ; Com- monwealth V. Shafer, 32 Pa. Super. Ct. 497 ; State Board of Health v. Roy, 22 R. I. 538, 48 Atl. 802 ; In re Thompson, 36 Wash. 377, 78 Pac. 899 ; State v. Crombie, 107 Minn. 166, 119 N. W. 658 ; Block v. Chicago, 239 111. 251, 87 N. E. 1011. But compare Harmon v. State, 66 Ohio St 249, 64 N. E. 117, 58 L. R. A. 618. See "Constitutional Law," Dec. Dig. (Key No.) §§ 62, 63; Gent. Dig. §§ 99, 108-110. 6 9 State V. Southern Ry. Co., 141 N. C. 846, 54 S. E. 294; Kirk v. Board of Health, 83 S. C. 372, 65 S. E. 387. Compare State v. Burdge, 95 Wis. 390, 70 N. W. 347, 37 L. R. A. 157, 60 Am. St. Rep. 123. See "Constitutional Law," Dec. Dig. (Key No.) §§ 62, 63; Gent. Dig. §§ 99, 108-110. 7 Brodblne v. Revere, 182 Mass. 598, 66 N. E. 607; Wilcox v. McClellan, 47 Misc. Rep. 465, 95 N. Y. Supp. 941, affirmed in 185 N.. Y. 9, 77 N. E. 986. See "Constitutional Law," Dec. Dig. (Key No.) §§ 62, 63; Gent. Dig. §§ 99, 108-110. 71 See Dastervignes v. United States, 122 Fed. 30, 58 C. C. A. 346 (authority of secretary of the interior to make rules relating to national forest reserva- tions) ; Iowa Life Ins. Co. v. Eastern Mut. Life Ins. Co., 64 N. J. Law, 340, 45 Atl. 762 (control over insurance companies vested in secretary of state), ; Leeper V. State, 103 Tenn. 500, 53 S. W. 962, 48 L. R. A. 167 (commission to select text- books for the public schools) ; School City of Marion v. Forrest, 168 Ind. 94, 78 N. E. 187 (library boards in cities) ; Elwell v. Comstoek, 99 Minn. 261, 109 N. W. 698, 7 L. R. A. (N. S.) 621 (commission appointed to determine the effi- ciency of a voting machine authorized to be used at state elections) ; In re Hertle, 190 N. Y. 531, 83 N. E. 1126 (commissioners of accounts, charged with the duty of examining the accounts and methods of the offices of a municipal government) ; Coopersville Co-operative Creamery Co. v. Lemon, 163 Fed. 145, 89 C. C. A. 595, and Farther v. United States, 9 App. I>. C. 82 (act of congress taxing oleomargarine and authorizing the commissioner of internal revenue to 100 THE THREE DEPARTMENTS OP GOVERNMENT. (Ch. 5 POLITICAL QUESTIONS. 56. Questions which are of a political nature are not the subject of judicial cognizance; courts irill leave the determination of them to the executive and legislative departments of the gov- ernment. When such questions arise in the course of Htigation, the courts will refuse to take jurisdiction of the action, if it necessarily involves such a determination, or, if the question has been settled by the action of the political departments of the government, the judiciary will accept and follow their conclusions without question.'^ There are twO reasons for this rule. In the first place, courts ought not to usurp the functions of the political branches of the government nor intrude upon their juris- diction. And, second, in public affairs of the state or nation, such as may be made the basis of executive or legislative action, the judicial tribunals must not hamper or embarrass the other departments by decide what substances are taxable thereunder and also to determine by regu- lations how packages of oleomargarine shall be marked or stamped) ; Dunlap V. United States, 173 U. S. 65, 19 Sup. Ct. 319, 43 L. Ed. 616 (rebate of customs duties on alcohol used in the arts, to be made under regulations to be pre- scribed by the secretary of the treasury) ; Butler v. White (C. C.) 83 Fed. 578 (civil service act of congress). And see United States v. Hanson, 167 Fed. 881, 93 C. O. A. 371 ; Kansas Oity Southern R. Co. v. State (Ark.) 119 S. W. 288. It is also to be remarked that, as a general rule, the courts will not interfere with the exercise of the discretion vested by statute In adminis- trative officials, in the absence of convincing proof of bad faith or miscon- duct on their part, or unless it is clear they have exceeded the powers con- ferred on them. Holly v. City of New York, 128 App. Div. 499, 112 N. Y. Supp. 797; De Merritt v. Weldon, 154 Cal. 545, 98 Pac. 537; State Railroad Commission v. People, 44 Colo. 345, 98 Pac. 7. See "Constitutional Law," Dec. Dig. (Key No.) §§ 59-66; Cent. Dig. §§ 89-122. 7 2 Marbury v. Madison, 1 Cranch, 137, 170, 2 L. Ed. 60; Georgia v. Stanton, 6 Wall. 50, 18 L. Ed. 721 ; Parker v. State, 133 Ind. 178, 32 N. E. 836, 33 N. E. 119, 18 L. Ed. 567 ; State v. Bowman (Ark.) 116 S. W. 896 ; United States v. Holt (0. C.) 168 Fed. 141. The question as to what liability there shall be between a new county and an old one, from which it has been carved out, is political and belongs to the legislative department. Riverside County y. San Bernardino County, 134 Cal. 517, 66 Pac. 788. So is the question of what property shall be embraced within a taxing district and whether it shall be taxed for municipal purposes. Kettle v. Dallas, 35 Tex. Civ. App. 632, 80 S. W. 874. See "Constitutional Law," Dec. Dig. (Key No.) § 68j Cent, Dig. §§ 125-127. § 56) POLITICAL QUESTIONS. 101 prejudging the questions which they will have to decide, or attempting to review their decisions already made. The question which of two opposing governments, each claiming to be the rightful government of a state, is the legitimate government, is an illustration of the kind of questions which the courts will refuse to decide on the ground of their belonging to the political departments.^* So, also, it belongs exclusively to the executive and legislative depart- ments to recognize, or refuse to recognize, a new government in a foreign country, claiming to have displaced the old and to have estab- lished itself.'* And who is the sovereign, de jure or de facto, of a given district or territory, is not a judicial but a political question.'''' Again, whether or not a state of war, insurrection, or public hostility, within the limits of the country, or between this country and a foreign power, existed at a given date, and the nature and extent of the war, if any existed, is a question on which the judicial tribunals must fol- low the political departments and accept their determination as con- clusive.'" Treaties, in so far as they involve the rights of private liti- gants, may be the subject of judicial cognizance, but not with respect to their execution or their effect on public rights. Thus, no court has power to question, or in any manner look into, the powers or lights recognized by a treaty in the nation or tribe with which it was made.'^ T3 Luther v. Borden, 7 How. 1, 12 L. Ed. 581 ; Thomas v. Taylor, 42 Miss. 651, 2 Am. Rep. 625. In ascertaining the tribal and other relations of Indians, the courts will generally follow the executive and legislative departments. Farrell v. United States, 110 Fed. 942, 49 C. C. A. 183. See "Constitutional Law," Dec. Dig. (Key No.) § 68; Cent. Dig. § 123. 74 Kennett v. Chambers, 14 How. 38, 14 L. Ed. 316. See "Constitutional Law," Deo. Dig. (Key No.) § 68; Cent. Dig. § 1S5; "International Law," Deo. Dig. (Key No.) § 4; Cent. Dig. § 4. T5 Jones V. United States, 137 U. S. 202, 11 Sup. Ct. 80, 34 L. Ed. 691. Courts will treat as subject to their jurisdiction any territory claimed by the political department. Harrold v. Arrington, 64 Tex. 233. See "Constitutional Law," Dec. Dig. (Key No.) § 68; Cent. Dig. § 123. 7 6 Gray v. United States, 21 Ct. CI. 340; United States v. One Hundred and Twenty -Nine Packages, Fed. Cas. No. 15,941 ; Gelston v. Hoyt, 3 Wheat, 246, 324, 4 L. Ed. 381. It would not have been competent for the judiciary to make any declaration upon the question of the length of time during which Cuba might be rightfully occupied and controlled by the United Sitates In order to effect its pacification. Neely v. Henkel, 180 U. S. 109, 21 Sup. Ct. 302, 45 L. Ed. 448. See "War," Dec. Dig. (Key No.) § 7; Cent. Dig. § 10. 7 7 United States v. Sandoval, 167 U. S. 278, 17 Sup. Ct. 868, 42 L. Ed. 168; Ansley v. Ainsworth, 4 Ind. T. 308, 69 S. W. 884 ; Maiden v. Ingersoll, 6 Mich. 373. The courts have no power, by mandamus or otherwise, to compel the 102 THE THREE DEPARTMENTS OF GOVERNMENT. (Ch. 5 Nor are the courts authorized to inquire or decide whether the per- son who ratified a treaty on behalf of a foreign nation had the power, by its constitution and laws, to make the engagements into which he entered ; if the executive department accepts the treaty as valid, that is enough for the courts.''^ And on the same principle, it is not for the courts to decide "whether a treaty with a foreign sovereign has been violated by him ; whether the consideration of a particular stipulation in a treaty has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other; or whether the views and acts of a foreign sovereign, manifested through his representative here, have given just occasion to the political departments of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise." " So, again, the validity of the retrocession to Virginia of that part of her territory which was orig- inally ceded to the United States to form part of the District of Colum- bia, is settled by the political departments of government and cannot be inquired into by the courts.^" But, on the other hand, the ascertainment of the boundary between two states, or between a state and a territory, is not so far political in its nature that the courts may not determine it.^^ Nor is the question of the eligibility of a person elected to executive office in the state gov- ernment.'^ Neither is the question whether or not an apportionment act (dividing the state into districts for the election of members of the legislature) conforms to the requirements of the constitution.*^ secretary of state to present and urge a claim of- a citizen of tills country against a foreign government to redress a wrong committed against him In such foreign country, the duty of righting such a wrong being a political one. United States v. Hay, 20 App. D. C. 576. See "Constitutional Law," Deo. Dig. (Key No.) § 68; Gent. Dig. § 125. 7 8 Doe V. Braden, 16 How. 635, 14 L. Ed. 1090. See "Constitutional Laio," Dec. Dig. (Key No.) § 68; Cent. Dig. § 125; "Treaties," Dec. Dig. (Key No.) § S; Cent. Dig. % 3. 7 9 Taylor v. Morton, 2 Curt. 454, Fed. Cas. No. 13,799. See "Constitutional Law," Dec. Dig. {Key No.) § 68; Cent. Dig. § 125. 8 Phillips V. Payne, 92 U. S. 130, 23 L. Ed. 649. See "Puhlic Lands," Dec. Dig. (Key No.) § 2; Cent. Dig. § 2. 81 United States v. Texas, 143 U. S. 621, 12 Sup. Ct. 488, 40 L. Ed. 867 ; Ehode Island v. Massachusetts, 12 Pet. 657, 9 L. Ed. 1233. >Sfee "Constitutional Law," Dec. Dig. (Key No.) § 68; Cent. Dig. § 125. 82 State V. Gleason, 12 Fla. 190. See "Constitutional Law," Dec. Dig. (Key No.) § 68; Cent. Dig. § 125. 8 3 State V. Cunningham, 81 Wis. 440, 51 N. W. 724, 15 L. R. A. 561; Id., 83 Wis. 90, 53 N. W. 35, 17 L. R. A. 145, 35 Am. St. Rep. 27 ; People v. Thomp- § 57) ADVI80BT OPINIONS BT THE COURTS. 103 ADVISORY OPINIONS BY THE COUBTS. S7. The courts cannot be required to render their opinions upon ques- tions of la-w, except in cases actually before them. But in a few of the states, the constitutions empovrer the executive or legislative departments to demand the opinion of the supreme court on important questions relating to pending measures. For instance, the constitution of Massachusetts declares that "each branch of the legislature, as well as the governor and council, shall have authority to require the opinions of the justices of the supreme judicial court upon important questions of law and upon solemn occa- sions." ** And in five or six other states similar constitutional pro- visions are found. But unless the constitution so provides, it is not within the lawful power of the other departments of the government thus to propound questions to the courts and require answers to them. A statute authorizing either house of the legislature to do this is uncon- stitutional, for the reason that it imposes on the courts duties which are not judicial in their nature. *° The President of the United States does not possess any authority to require the opinion of the supreme court on questions propounded to it.*° "In giving such opinions (where authorized by the constitution) the justices do not act as a court, but as the constitutional advisers of the other departments of the govern- ment, and it has never been considered essential that the questions pro- posed should be such as might come before them in their judicial ca- pacity." ^^ But it is held that questions relating to the desirability or policy of proposed legislation cannot be thus propounded to the court. *^ "It is well understood, and has often been declared by this court, that an opinion formed and expressed under such circumstances cannot be . son, 155 111. 451, 40 N. B. 307 ; Ragland r. Anderson, 125 Ky. 141, 30 Ky. Law Rep. 1199, 100 S. W. 865. See "Constitutional Law," Deo. Dig. (Key No.) § 68; Cent. Dig. § 127. 84 Const. Mass. c. 3, art. 2. 8 6 In re Application of Senate, 10 Minn. 78 (611. 56). And see Wyatt v. State Board of Equalization, 74 N. H. 552, 70 Atl. 387. See "Constitutional Law," Dec. Dig. (Key Wo.) § 69; Cent. Dig. § -Z2S; "Courts," Cent. Dig. §§ m, 493. se 2 Story, Const. § 1571. 87 Opinion of the Justices, 126 Mass. 557. See "Constitutional Law," Dec. Dig. (Key No.) § 69; Cent. Dig. § 128; "Courts," Cent. Dig. §§ 492, 493. 8 8 In re Senate Bill 65, 12 Colo. 466, 21 Pac. 478. See "Constitutional Law," Dec. Dig. (Key No.) § 69; Cent. Dig. § 128; "Courts," Cent. Dig. §§ 492, 493. 104 THE THREE DEPARTMENTS OF GOVERNMENT. (Ch. 5 considered in any sense as binding or conclusive on the rights of parties, but is regarded as being open to reconsideration and revision; yet it necessarily presupposes that the subject to which it relates has been judicially examined and considered, and an opinion formed thereon." *° A finding of law and fact made by the Court of Claims, at the request of the head of a department, with the consent of the claimant, and transmitted to such department, but which is not obligatory on the de- partment, is not a judgment. The function of the court in such a case is ancillary and advisory only, and hence its decision is not appeal- able."" 8 9 Green v. Com., 12 Allen (Mass.) 155. See "Constitutional Law," Dec. Dig. (Key No.) § 69; Cent. Dig. § 128; "Courts," Cent. Dig. §§ 492, 49S. 90 In re Sanborn, 148 U. S. 222, 13 Sup. Ct. 577, 37 L. Ed. 429. See "Appeal and Error," Dec. Dig. (Key No.) § 85; Cent. Dig. i.550; "Courts," Cent. Dig. § mi- §§ 60-61) THE FEDEBAL EXECUTIVE. 105 CHAPTER VI. THE FEDERAL EXECUTIVE. 58. The President. 69. The Vice-President. 60-61. Election of President and Vice-President 62. Qualifications of President. 63. Vacancy in Office of President 64. Compensation of President. 65. Oath of Office of President. 66. Independence of the Executive. 67-68. Veto Power of President. 69. Military Powers of President 70-73. The Cabinet. 74. Pardoning Power. 75-76. The Treaty-Making Power. 77-78, Appointments to Office. 79. Presidential Messages. 80. Convening and Adjourning Congress. 81. Diplomatic Relations. 82. Execution of the Laws. 83-85. Impeachment. THE PRESIDENT. 58. The executive pawer of the United States is vested in a President of the TTnited States, vho holds his office during a term of f onr years. THE VICE-PRESIDENT. 59. The Vice-President of the United States is elected at the same time irith the President and holds his office for the same term. He acts as president of the senate, and succeeds to the presi- dency in case of the removal of the President from office, or of his death, resignation, or disability. ELECTION OF PRESIDENT AND VTCE-PRESIDENT. 60. The President and Vice-President are chosen hy an electoral col- lege, the members of which are appointed or elected in the several states, each state being entitled to a representation therein equal to the whole number of its senators and repre- sentatives in congress. 106 THE FEDERAL EXECUTIVE. (Ch. 6 61. If no candidate for the presidency receives a majority of the votes cast by the electoral college, the President is to be elected by the house of representatives. In » similar contingency, the Vice-President is chosen by the senate. The method of electing the President and Vice-President is prescrib- ed by the twelfth amendment to the constitution, together with such parts of the first section of the second article as have not been supersed- ed by that amendment. The presidential electors, chosen as therein directed, constitute what is commonly called the "electoral college." It will be observed that congress may determine the time of choosing the electors and the day on which they shall give their votes, which day shall be the same throughout the United States. In pursuance of this power, the day for casting the votes was at first fixed on the first Wednesday of December in every fourth year. But by the statute now in force (Act Jan. 23, 1845), the electors are to be chosen on the Tuesday next after the first Monday of November. But the manner of choosing the electors is left entirely to the individual states. The state legislatures have exclusive power to direct the manner in which the presidential electors shall be appointed. Such appointment may be made by the legislature directly, or by popular vote in districts, or by a general ticket, as the legislature may direct.^ At the present day, the last mentioned method is almost universally in vogue. The constitu- tion does not prescribe the qualifications of a presidential elector, ex- cept in a negative way. No person is eligible to this office who is a "senator or representative, or who holds an office of trust or profit un- der the United States." And by the third section of the fourteenth amendment, no person is eligible who has violated an oath previously taken to support the constitution of the United States, by engaging in insurrection or rebellion against the same, or giving aid or comfort to the enemies thereof, unless his disability has been removed by congress. A disqualification for the office of presidential elector, caused by the holding, of an office, cannot be removed by the resignation of that office after the choosing of the elector but before he comes to cast his vote for President.^ The courts of a state have jurisdiction of an in- dictment for illegal voting for presidential electors.^ 1 McPherson v. Blacker, 146 U. S. 1, 13 Sup. Ot. 3, 36 L. Ed. 869. See "United States," Dec. Dig. (Key No.) § 25; Cent. Dig. § 16. 2 In re Corliss, 11 R. I. 638, 23 Am. Rep. 538. See "United States," Dec. Dig. {Key Wo.) § 25; Cent. Dig. § 16. 3 In re Green, 134 U. S. 377, 10 Sup. Ct. 586, 33 L. Ed. 951. See "Criminal Law," Dec. Dig. {Key No.) § 95; Cent. Dig. § 174. §§ 60-61) ELECTION OF PRESIDENT AND VICE-PEESIDENT. 107 The electors are required to make lists of the votes which they cast, and sign and certify the same, and transmit them sealed to the presi- dent of the senate. It is also provided that this officer, in the presence of both houses of congress, shall open all the certificates. The consti- tution then provides that the votes shall be counted. But it is not pre- scribed by whom the counting shall be done, nor who shall declare the result. But this is now regulated by statute, the duty being cast upon the president of the senate, who was obviously intended to discharge it. But neither in the original plan nor in the twelfth amendment is any provision made for the determination of questions which may arise as to the regularity or authenticity of the returns or the right or qualifica- tion of the electors, or the manner or circumstances in which the votes should be counted. This serious defect in the constitution was made apparent in the memorable contest of 1877. The electoral commission, by which that election was determined, was created only to meet the particular emergency, and was not made applicable to future cases. But since that time, congress has provided regulations for- these mat- ters with such care and minuteness of detail that no such dispute is likely ever to recur.* Great importance was attached by the f ramers of the constitution to the interposition of the electoral college between the passions and prej- udices of the undiscriminating multitude of voters and the high office of President. But in no single instance have their designs and theories been more completely frustrated by the practical workings of the system than in this. It is well known that at present the electors have no inde- pendent choice of the candidates for whom their votes shall be cast. The candidates are nominated by national conventions of the political parties, and the electors have merely the perfunctory task of registering their votes for the candidate of the party by whom they were chosen. Only in very rare instances do the presidential electors find themselves at liberty to exercise their personal judgment or preference. In gener- al, the electoral college is a mere survival. The house of representatives is to elect the President in case no per- son has a majority of the electoral votes. In that event, the persons receiving the greatest number of votes (not exceeding three candidates) are to be voted for, the vote is by states, each state having one vote, and a majority of all the states is necessary to elect. In the same con- 4 Act Cong. Feb. 3, 1887, 24 Stat. 373 (U. S. Comp. St. 1901, p. 67) ; Act Oct. 19, 1888, 25 Stat. 613 (U. S. Comp. St. 1901, p. 72). 108 THE FEDERAL EXECUTIVE. (Ch. & tingency the senate is to choose the Vice-President, voting for the two- candidates standing highest on the list. QUALIFICATIONS OF PRESIDENT. 62. The constitution prescribes the qualifications of the President in. three particulars. To be eligible to this office he must (a) Be a natural born citizen of the United States; (b) Have attained the age of thirty-five years; (c) Have been for fourteen years a resident within the United States.. Congress would clearly have no power to add to these qualifications,, nor to dispense with any requisite laid down in the constitution. "By residence, in the constitution, is to be understood, not an absolute in- habitancy within the United States during the whole period, but such an inhabitancy as includes a permanent domicile in the United States- No one has supposed that a temporary absence abroad on public busi- ness, and especially on an embassy to a foreign nation, would interrupt the residence of a citizen so as to disqualify him for office. If the word were to be construed with such strictness, then a mere journey through any foreign adjacent territory, for health or for pleasure, or a com- morancy there for a single day, would amount to a disqualification." ^ VACANCY IN OFFICE OF PRESIDENT. 63. In case of the removal of the President from office, or of his death, resignation, or inability to discharge the poivers and duties of the office, the same devolves upon the Vice-President. If botlr these should die, or be incapacitated from discharging the du- ties of the office, as above, then, by a statutory provision, tho office devolves upon certain members of the cabinet, succeeding each other in a prescribed order. The constitution gives to congress the power by law to "provide for the case of removal, death, resignation, or inability both of the Presi- dent and Vice-President, declaring what officer shall then act as Presi- dent, and such officer shall act accordingly until the disability be re- moved or a President shall be elected." In pursuance of this power, it was at first provided that, in the case supposed, the president of the senate, or, if there were none, then the speaker of the house of rep- B 2 Story, Const. § 1479. ;§ 64) COMPENSATION OF PRESIDENT. 109 resentatives for the time being, should act as President.' But this law was repealed by an act passed in 1886 ' wherein it is provided that in default of both a President and Vice-President capable of acting, the ;heads of departments shall succeed them in the following order : The secretary of state ; the secretary of the treasury ; the secretary of war ; the attorney general ; the postmaster general ; the secretary of the navV ; the secretary of the interior. This act settles a question of considerable importance which was left open under the former law. It declares that its terms shall apply only to such among the above named officers as are eligible to the office of President under the constitution and not under impeachment at the time. If the Vice-President becomes acting President, he will hold the office until the expiration of the term for which the President was elected. And so also, it would appear, will a member of the cabinet, succeeding under the terms of the law men- tioned above, except in the case where the cause of his succession is a temporary disability of the President, in which event he is only to hold the office until the disability is removed. In view of the possibility of "the President desiring to resign his office, a case contemplated by the •constitution, it was very important that the method of effecting the res- ignation should be pointed out, and that there should be some authori- tative declaration of the proof of such resignation to be required. This desideratum was met by an early act of congress providing that the resignation shall be made by some instrument in writing, declaring the same, subscribed by the party, and delivered into the office of the secre- tary of state.* COMPENSATION OF PRESIDENT. '64. Tlie constitution, provides that the President shall, at stated times, receive for his services a compensation, vrhich shall nei- ther be increased nor diminished during the period for ivhich he shall have been elected, and he shall not within that period receive any other emolument from the United States or any of them. The object of this provision is of course to put the President be- yond either the fear or favor of congress, by depriving that body of 6 Rev. St. U. S. I§ 146-150. 1 24 Stat. 1 (U. S. Comp. St. 1901, p. 74). 8 Act March 1, 1792, c. 8, § 11 (Rev. St. U. S. § 151 [U. S. Comp. St. 1901, 3?. 75]). 110 THE FEDERAL EXECUTIVE. (Ch. 5 the power to coerce him into submission to its wishes by cutting off his stipend, or to bribe his compliance by an increase, of salary. The salary of the President was at first fixed at $25,000 per annum, and ,so con- tinued until it was increased to $50,000 by the act of March 3, 1873. As this statute was enacted on the last day of the first term of Presi- dent Grant, who entered upon his second term on the next following- day, it is regarded as having established a precedent to the effect that an increase of salary made after the re-election of a President may govern his compensation iduring the second term. A further increase in the salary of the President was made by the act of congress of March 4, 1909, which fixed it at $75,000. OATH OF OFFICE OF PRESIDENT. 65. The constitntion requires that the President, before he enters on. the execution of his office, shall take the folloiring oath or af- firmation: "I do solemnly swear (or affirm) that I will faith- fully execute the office of President of the United States, and 'trill to the best of my ability preserve, protect, and defend the constitution of the United States." This official oath is usually taken by the President-elect in front of the Capitol at Washington, in the presence of both houses of congress. It is commonly administer-ed by the chief justice of the supreme court,, but this is a matter of precedent only, and any person having authority to administer such an oath could legally perform the oflfice. As to the Vice-President, his official oath is not expressly provided for in the constitution, but it falls within the provision of the last clause of the sixth article, which requires that "all executive and judicial officers both of the United States and of the several states, shall be bound by oath or affirmation to support this constitution." And if he succeeds to the presidency, he then takes the oath of office prescribed for the President. With general reference to the oath taken by officers to support the constitution, it may be said that (except as it regards the officer's per- sonal obedience to the constitution) it is to be taken as a political oath. It means that the officer will maintain the supremacy and inviolability of the constitution against disruption by domestic intrigue or foreign aggression. § 66) INDEPENDENCE OF THE EXECUTIVE. HI INDEPENDENCi: OF THE EXECUTIVE. 66. In the exercise of his constitutional powers and functions, the President is an independent, co-ordinate branch of the govern- ment, not subject to the direction or control of either congress or the courts. The constitution makes the President of the United States the reposi- tory of all the executive power of the nation, thus constituting him a separate department of the government, not inferior to the others, but co-ordinate with them, and independent of them. His acts and deter- minations, within the sphere of his constitutional powers, cannot be controlled, questioned, or overruled by the legislative or judicial de- partments. He is invested with political discretion, and in the exercise thereof he is responsible to no other person or department of the gov- ernment. He also has such other incidental privileges and immunities as are necessary to enable him to exercise his powers and discharge his duties without interference or hindrance. "In the exercise of his political powers he is to use his own discretion, and is accountable only to his country and to his own conscience. His decision in relation to these powers is subject to no control, and his discretion, when exercis- ed, is conclusive." " The exercise by the President of his executive powers can neither be commanded nor restrained by the ordinary pro- cess of the courts. Nor can the discharge of his executive duties be thus compelled, or in any wise interfered with. Thus in the case of State of Mississippi v. Johnson,^" it was held that a writ of injunction cannot be issued to restrain the President from carrying into execution an act of congress, on the allegation that the act is unconstitutional. Nor can the writ of mandamus be issued to compel the President to perform an act which lies within his political discretion. ^^ And since the grant of executive powers to the President necessarily implies that he shall be enabled to exercise them without any obstruction or hin- drance, it follows that he cannot be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his ofiSce, and for this purpose his person must be deemed, in civil cases at least, to 9 2 Story, Const. § 1569. 10 4 Wall. 475, 18 L. Ed. 437. See, also, Georgia v. StaHton, 6 Wall. 50, 18 L. Ed. 721. See "Injunctton," Dec. Dig. (Key ]Vo.) § 85; Cent. Dig. § 156; "Con- stitutional Law," Dec. Dig. (Key No.) § 68; Cent. Dig. § 125. 11 Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60. See "Mandamus," Dec. Dig. (Key No.) § 72; Cent. Dig. §§ 133, ISi. 112 THE FEDERAL EXECUTIVE. (Ch. 6 possess an official inviolability.^" It is doubtful whether he could be •compelled to appear in court in obedience to the writ of subpcEna. Such a writ was served on President Jefferson on the trial of Aaron Burr, but he refused to obey it, and the matter was never pressed to a decision. The exemption of the President from being controlled or interfered with by the process of the courts extends also to the heads of depart- ments and other high executive officers, in so far as relates to matters in which they are invested with discretion, or political matters, though not in relation to duties which are merely ministerial, or which do not involve the exercise of any discretion, and where the rights of private parties are concerned.^' Reference has already been made to this topic in the first and fifth chapters, in connection with the rule of personal and political responsibility and the independence of the executive de- partment. VETO POWTER OF PRESIDENT. 67. The President has constitutional authority to negative any act or joint resolution of congress, by returning the same with his disapproval. €8. The veto poiver is subject to two restrictions; (a) It must be exercised ivithin ten days. (b) A veto may be overruled by the concurrent vote of two-thirds of both houses of congress. The constitution provides that every bill passed by the two houses of congress, and also every order,' resolution, and vote to which the concurrence of both houses is necessary (except on a question of ad- journment) shall, before it becomes a law, be presented to the Presi- dent. If he approves it, he shall sign it ; but if not, he shall return it, with his objections, to the house in which it originated. When a bill is thus returned with a veto message, the house receiving it shall enter the President's objections at large on its journal and proceed to recon- sider the bill. The bill may then be passed over the President's veto, by a vote of two-thirds of both houses, the vote being taken by yeas and nays and the names of those voting for and against the measure being entered on the journals. If any bill shall not be returned by the Presi- 12 2 Story, Const. § 1569. 13 Kendall v. U. S., 12 Pet. 527, 9 K Ed. 1181 ; Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60. See "Mandamus," Dec. Dig. (Key No.) §S 71, 73; Cent. Dig. §§ 133, 134. §§ 67-68) vsTO POWER or peesidbnt. 113 dent within ten days (Sundays excepted) after it shall have been pre- sented to him, it shall become a law in like manner as if he had signed it, unless congress, by their adjournment, prevent its return, in which case it shall not become a law. This power vested in the President is not executive in its nature, but essentially legislative. It makes him, in eiifect, a branch of congress, though only to a limited and qualified extent. It operates as a check on the enactment of hasty, unwise, or improper laws. The provision which requires the executive to exercise his veto power within ten days, if at all, is a very important and substantial limitation upon this power. For if it were not for this clause, it would be within the power of the President to prevent or indefinitely suspend all legislation which might be personally or politically obnoxious to him, by mere inaction, without being compelled to disclose the ground of his opposition or come be- fore congress and the country with any explanation of his views. And then, by way of a counter check, it is provided that congress shall not rob the executive of his right to exercise this power by terminating its session before the President can act. A further and very important check upon congress, in its relation to the executive in this respect, was rendered necessary by the consideration that the requirement that "every bill" should be sent to the President for his approval might easily be evaded by calling the particular measure an "order" or a "resolu- tion." Hence it was thought good to provide that all orders, resolu- tions, and votes, to which the concurrence of both houses shall be nec- essary, save on a question of adjournment, shall take the same course and be subject to the same veto power as a bill. Extensive as the veto power is, there is yet one particular in which, in the opinion of many publicists, it might profitably be extended. That is, a constitutional amendment might give to the President the authority to disapprove of any particular part or item of a bill which may appear to him to be objectionable. At present, the chief magistrate must act upon the "bill" as a whole. An appropriation bill or a revenue measure may consist of a great number of separable items, some of which, in the judgment of the executive, may be unconstitutional or inexpedient. Yet he must either approve or reject the entire act. He has no power to veto any individual item. As to the grounds on which the President may exercise this power, the constitution prescribes no limitations. He is merely required to return the bill "with his objections." It is within the scope of his pow- er, and it is probably one of the purposes for which it was given, that he should judge of the constitutionality of all proposed legislation. But Bi,.Oonst.L.(3d.B[d.)— 8 114 THE FEDERAL EXECUTIVE. (Ch. 6 he is not restricted to this ground of objection, in consideyng a bill laid before him. He may also judge of its economic or political wis- dom, its expediency, its policy, or its relation to other laws or to trea- ties. In fact, though the ground of his objection should be entirely ar- bitrary or capricious, or the result of personal feeling or prejudice, still the constitution does not forbid him to make it the basis of a veto. This would merely furnish a reason for the attempt to pass the bill without his approval. In regard to matters of practice in the signing, approval, and re- turning of bills, the rules which govern the President and congress are similar to those which prevail in the case of a state governor dealing with bills laid before him for his approval or rejection, in connection with which subject the matter will be more fully discussed. At present it is only necessary to remark that while the President is required to evidence his approval of a bill by his signature thereto, there is no pro- vision of the constitution, nor any just implication therefrom, which imposes upon him the duty of affixing a date to his signature.^* MILITARY POWERS OF PRESIDENT. 69. The constitution provides that the President shall he commander in chief of the army and navy of the United States, and of the, militia of the several states ivhen called into the actual service of the United States. It is very important, in this connection, to observe the distinction be- tween.the powers and functions of the President and those of congress, and their mutual relations. The subject is best discussed by considering it first with reference to the prevalence of a state of peace, and then in relation to a war footing. In time of peace, the President has two sets of duties to discharge with reference to the army and navy. First, h*e is the commander in chief, and as such must exercise supreme and unhindered control. Secondly, he "shall take care that the laws be faithfully executed," and in pursuance of this duty he must give due effect to the acts of congress which concern the military and naval es- tablishments. Congress has power to raise and support armies, to provide and maintain a navy, and to make rules for the government and regulation of the land and naval forces. Under these grants of au- thority it may clearly regulate the enlistment of soldiers and sailors, 14 Gardner v. Collector, 6 Wall. 499, 18 L. Ed. 890. 8ee "Statutes," Dec. Dig. (Key No.) § 31; Cent. Dig. § 33. § 69) MILITARY POWERS OF PRESIDENT. 115 prescribe the number, rank, and pay of officers, provide for and regulate arms, ships, forts, arsenals, the organization of the land and naval forces, courts-martial, military offenses and their punishment, and the like. And all these laws and regulations the President is to carry into effect, not in his character as commander in chief, but as a part of his general executive duty, and with as great or as little choice of means and methods as congress may see fit to confide to him. But again, in virtt^e of his rank as the head of the forces, he has certain powers and duties with which congress cannot interfere. For instance, he may regulate the movements of the army and the stationing of them at vari- ous posts. So also he may direct the movements of the vessels of the navy, sending them wherever in his judgment it is expedient. Neither here nor in a state of war is there any necessary conflict.^" The Presi- dent has no power to declare war. That belongs exclusively to con- gress.^* But when war has been declared, or when it is recognized as IB The constitutional power of the President to command the army and navy and that of congress to "make rules for the government and regulation of the land and naval forces" are distinct. The President cannot by military orders evade the legislative regulations, and congress cannot by rules and regulations Impair the authority of the President as commander in chief. Sveaim v. U. S., 28 Ct. 01. 173. And see Hogan v. U. S., 43 Ct. CI. 158; Cloud v. U. S., 43 Ct. CI. 69. The President may dismiss an officer from the service of the army or navy. But by Rev. St. U. S. §§ 1229, 1624 (U. S. Oomp. St. 1901, pp. 868, 1102), it is provided that no officer of the army or navy, in time of peace, shall be dismissed from the service, except upon and In pursuance of the sentence of a court martial to that effect, or in commutation thereof. The President has power, by and with the advice and consent of the senate, to displace an officer in the army or navy by the appointment of another person in his place. Mullan v. U. S., 140 U. S. 240, 11 Sup. Ct. 788, 35 L. Ed. 489. But he has no power to revoke an order dismissing an officer from the service and restoring the discharged officer to his rank. Palen v. U. S., 19 Ct. CI. 389. When the number of officers in a given rank or grade of the regular army is expressly fixed by law, it is not in the power of the President to make appoint- ments in excess of the limits thus fixed. Montgomery v. U. S., 5 Ct. CI. 93. A retired officer of the army Is an "officer of the United States," within the meaning of an act of congress prohibiting such officers from acting as agents or attorneys for the prosecution of any claim against the United States. In re Winthrop, 31 Ct. CI. 35. As to the authority of the secretary of war under an act of congress for the reorganization and increase of the army, and the power of the courts to review his actions and decisions, see United States v. Root, 22 App. D. C. 419. See "Army and Navy," Dec. Dig. (Key No.) §§ 7, 11, 12; Cent. Dig. §§ 7-9, 13, 14; "Constitutional Law," Dec. Dig. {Key No.) § 73; Gent. Dig. §§ 134-136; "United States," Dec. Dig. (Key No.) § 137; Cent.- Dig. § 132. 18 As the power to declare war is vested in congress exclusively, the Presi- 116 THE FEDERAL EXECUTIVE. (Ch. 6 actually existing, then his functions as commander in chief become of the highest importance, and his operations in that character are entire- ly beyond the control of the legislature. It is true that congress must still "raise and support" the army and "provide and maintain" the navy, and it is true that the power of furnishing or withholding the necessary means and supplies may give it an indirect influence on the conduct of the war. But the supreme command belongs to the President alone. In theory, he plans all campaigns, establishes all blockades and sieges, directs all marches, fights all battles. Articles of War and Army Regulations. The "articles of war" comprise a code of military law regulating the discipline and administration of the army and providing for the en- forcement of the rules thereby established. These articles are enacted by congress and have the force and authority of statute law, being ordained in the exercise of the constitutional power of congress to "make rulfes for the government and regulation of the land and naval forces." The "army regulations" are a body of rules having relation to the details of military law and the order and discipline of the mili- tary establishment, subordinate to the articles of war and the applicable statutes of congress, but having the force of law within their own sphere and so far as they are not inconsistent with legislative enact- ments. These regulations are not made by congress, but by the secre- tary of war for the army, and the secretary of the navy for the naval forces, subject to the approval of the President, from whom they are supposed to emanate. The authority to make them is based either on an express grant of power from congress to the executive, or on the general powers of the President as commander in chief. Calling Out the Militia. By an early act of congress (February 38, 1795) it was provided that "in case of an insurrection in any state against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such state, or of the executive (when the legislature cannot be convened) to call forth such number of the militia of any other state or states as may be applied for, as he may judge sufficient to suppress such insurrection." By this act, the power of deciding whether the exigency has arisen upon which the government of the United States is bound to interfere is given to the President. He is to act upon the application of the legislature or of the executive^ and consequently he must determine what body of men constitutes the legis- lature, and who is the governor, before he can act. If there is an arm- §§ 70-Y3) THE CABINET. 117 ed conflict, the President must of necessity decide which is the govern-- ment, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act.^'' THE CABINET. 70. The President is assisted, in the discharge of his exeoutive duties, by a cabinet or ministry consisting of the heads of the several executive departments. 71. These officers are styled collectively "the cabinet," and individual- ly are knourn as (a) The secretary of state. (b) The secretary of the treasury. (c) The secretary of the navy. (d) The secretary of -war. (e) The attorney general. (f) The postmaster general. (g) The secretary of the interior, (h) The secretary of agriculture. (i) The secretary of commerce and labor. 72. The constitution provides that the President may require the opinion in ivriting of the principal officers in each of the exec- utive departments, upon any subject relating to the duties of their respective offices. dent has no power to originate a war. But without any declaration of war, or before such declaration is made, he may recognize the actual existence of a state of war, and employ the army and navy against the enemy. The Prize Cases, 2 Black, 635, 17 L. Ed. 459. A declaration of war by congress does not imply an authority to the President to extend the limits of the United States by conquering the enemy's country. That is, he may take possession of the enemy's country, and hold it, as a means of prosecuting the war, but that does not make the conquered territory a part of the United States. It could be annexed to the United States only by the act of the legislative depart- ment. Fleming v. Page, 9 How. 603, 13 L. Ed. 276. Or by a treaty of cession. Downes v. Bidwell, 182 U. S. 244, 21 Sup. Ct. 770, 45 L. Ed. 1088 ; Goetze v. United States (C. C.) 103 Fed. 72. For a definition of "war" or a "state of war," under the Indian depredation acts, see Dobbs v. United States, 33 Ct. CI. 308. The Emancipation Proclamation of President Lincoln was decisive as to what was deemed the "seat of war" by the President, as it was a military meas- ure against private property. Blanehard v. United States, 32 Ct. CI. 444. See "War," Dec. Dig. (Key No.) §§ 1, 6, SO; Cent. Dig. §§ 1, 9, 206; ••United States," Dec. Dig. (Key No.) §§ 102, 106; Cent. Dig. § 82. i' Luther v. Borden, 7 How. 1, 12 L. Ed. 581. And see Martin v. Mott, 12 Wheat. 19, 6 L. Ed. 537. See ••Army and Navy," Deo. Dig. (Key No.) § 5% ; Cent. Dig. § 5; ••Constitutional Law," Dec. Dig. (Key No.) § 68; Cent. Dig. § 125. 118 THE FEDEEAL EXECUTIVE. • (Ch. 6 73. The heads of departments are the agents of the President, through -nrhom, in matters of administration, he speahs and acts. They are generally responsible only to the President, and cannot he controlled by congress or the courts, except in regard to specific duties laid upon them by law, or the performance of merely ministerial acts. It is a noteworthy fact that the provision authorizing the President to require the written opinions of the cabinet ofScers is the only refer- ence made in the constitution (except for that clause which gives con- gress power to vest the appointment of inferior officers in the heads of departments) to that very important branph of the executive organ- ization known as the cabinet. The constitution contemplated the forma- tion of executive departments, but left their number and character to be fixed by statute. Accordingly congress has by law established nine of these departments, erecting them in the following order: The de- partments of state, war, the treasury, and justice in 1789, the post office in 1794, the department of the navy in 1798, the department of the interior in 1849, the department of agriculture in 1889, and that (^f commerce and labor in 1903 (33 Stat. 825 [U. S. Comp. St. Supp. 1909, p. 87]). The heads of the several .departments are appointed by the President, by and with the advice and consent of the senate. The provision that the President may require the written opinion of the heads of departments on subjects relating to the duties of their offices has several times been resorted to, in exact conformity with the constitution. But the usual practice, from Jeiferson's time to the present, has been for the President to assemble the members of his cabinet, at stated times or upon extraordinary occasions, and advise and consult with them, not merely upon subjects relating to the duties of their several departments, but upon all questions of administrative policy, both domestic and foreign. But it must be observed that this is entirely discretionary with the President. It is in him alone that "the executive power" of the United States is vested, and the constitu- tion does not declare that he "shall" receive their advice or opinions. The chief executive is no more legally bound by the recommendations or opinions of his cabinet than he would be by the suggestions of any of his personal and unofficial friends. The heads of departments, each within his own sphere, are the agents of the President for matters of administration. "The President speaks and acts through the heads of the several departments in rela- / §§ 70-73) THE CABINET. 119 tion to subjects which appertain to their respective duties," ^' and in general, an order, determination, or rule emanating from the head of a department, in a matter within the scope of his authority and his duties, is in contemplation of law the act or determination of the President.^" For example, "in all our foreign relations, the President, in perform- ing executive acts imposed by treaty stipulations or otherwise, acts through the department of state and under its official seal ; and when a warrant or mandate is signed by the secretary of state, it is the act of the President through the proper executive department of the gov- ernment." ^o So, again, "the secretary of war is the regular constitu- tional organ of the President for the administration of the military es- tablishment of the nation ; and rules and orders publicly promulgated through him must be received as the acts of the executive, and as such be binding upon all within the sphere of his legal and constitutional au- thority." " The head of an executive department has authority to make regula- tions and issue orders, under the directions of the President, with ref- erence to the business or administration of his department, which shall ■have the force of law to those who are subject to them; but this is subject to the condition that such orders and regulations do not con- flict with any act of congress.''^ The cabinet officers have also, in num- 18 Wilcox T. Jackson, 13 Pet. 498, 513, 10 L. Ed. 264 ; U. S. v. Jones, 18 How. 92, 15 L. Ed. 274; Lockington v. Smith, Pet. C. C. 466, Fed. Cas. No. 8,448; Button V. V. S., 20 Ct. CI. 423 ; U. S. v. Cutter, 2 Curt. C. C. 617, Fed. Cas. No. 14,911 ; In re Neagle (C. C.) 39 Fed. 833, 5 L. R. A. 78 ; Truitt v. United States, 38 Ct. CI. 398. See "United States," Dec. Dig. (Key No.) § 31; Cent. Dig. § 19. 19 Wolsey 7. Chapman, 101 U. S. 755, 25 L. Ed. 915. See "United States," Dec. Dig. (Key No.) § 31; Cent. Dig. § 19; "Public Lands," Dec. Dig. {Key No.) § 6S; Gent. Dig. § ms. 2 Ex parte Van Hoven, 4 Dill. 411, Fed. Cas. No. 16,858. See "Extradition," Dec. Dig. (Key No.) § 10; Cent. Dig. § 11. 21 U. S. V. Eliason, 16 Pet. 291, 10 L. Ed. 968. The officers of the navy are not the agents of the secretary of the. navy, but, lilce the secretary himself, are the agents and representatives of the President, who is the commander in chief of the army and navy ; and any authority which the secretary may exercise over them he exercises solely as the representative of the President. McGowan V. Moody, 22 App. D. C. 148. See "United States," Dec. Dig. (Key No.) § 33. 22 United States v. Symonds, 120 U. S. 46, 7 Sup. Ct. 411, 30 L. Ed. 557; Ex parte Reed, 100 U. S. 13, 25 L. Ed. 538. As to the authority of a cabinet offi- cer to reverse a decision of his predecessor, or a departmental practice found- ed on such a decision, see Lavalette v. United States, 1 Ct. CI. 147 ; Payne v. Houghton, 22 App. D. C, 234. See "United States," Dec. Dig 1' (Key No.) §§ 30-33. 120 THE FEDERAL EXECUTIVE. (Ch. 6 erous instances, been invested by congress with authority to make rules and regulations for carrying into practical effect the statutes relating to their several departments.''^ And these officers are necessarily vest- ed with a large measure of authority and of discretion in regard to such matters as the making of contracts relating to the business of their departments, and in regard to questions of detail arising in the per- formance of duties imposed upon them in general terms by the acts of congress.^* But while the heads of the executive departments are under the di- rection and control of the President in respect to such duties as in- volve political action and the exercise of judgment and discretion, and cannot be controlled or coerced by con_gress or the courts, this principle must not be carried so far as to make them amenable only to the orders of the President in respect to the execution of specific duties imposed upon them by law. From the performance of such duties the President could not relieve them. Nor, if summoned in the courts to account for their failure to discharge them, could they plead that they were ac- countable only to the executive head. Such a doctrine would vest in the President a dispensing power, which is entirely without warrant in the constitution. Consequently, the courts have power to compel a 2 3 As Illustrations we may cite the authority given to the secretary of the interior to make rules for the preservation and use of the national forest re- serves (Act Cong. June 4, 1S97 [U. S. Comp. St. 1901, p. 1538]) ; similar au- thority given to the secretary of agriculture under the "pure food and drug law" (Act Cong. June 30, 1906, 84 Stat. 768 [U. S. Comp. St. Supp. 1909, p. 1187]); the power given to the secretary of the treasury, in a great number of instances, to make rules respecting the importation of commodities from abroad and the collection of customs duties ; the authority of the postmaster general to issue "fraud orders," restricting the use of the mails (Rev. St. XJ. S., § 3929 [U. S. Comp. St. 1901, p. 2686] ; United States v. Burton [D. C] 131 Fed. 552) ; and the system of regulations made by the general land office (a bureau of the department of the interior) governing the proceedings on ap- plication for and issuance of patents on the public lands. In addition a very early act of congress provided that: "The head of each department is author- ized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it." Rev. St. U. S. § 161 (U. S. Comp. St. 1901, p. 80). See "Post Office," Dec. Dig. (Key No.) § 26. 2i Wisconsin Cent. R. Co. v. United States, 164 U. S. 190, 17 Sup. Ct. 45, 41 L. Ed. 399 ; Brooks v. United States, 39 Ct. CI. 494 ; Myerle v. United States, 31 Ct. CI. 105 ; Starin v. United States, 31 Ct. CI. 65. See "United States," Deo. Dig. (Key No.) §§ 30-33, 59, 60; Cent. Dig. §§ 19-21, J,2, J,S. § 74) PARDONING POWER. 121 cabinet officer, by mandamus or otherwise, to perform a simple minis- terial act, made his duty by law, and in which a private person alone is interested.^* When action is required of the President which is ju- dicial in its character and not merely administrative, as when he re- views the sentence of a court-martial, the matter must receive his in- dividual attention. His authority cannot be delegated. He cannot act through the head of a department, but it must appear that the decision is his own judgment, and not merely a departmental order. ^' With regard to papers in the custody of an executive department which are in the nature of confidential communications between officers of government, or of such a nature that, in the judgment of the head of the department, the disclosure of facts and names given in them would be detrimental to the public service, the rule is that they are privi- leged, and the law will not enforce the production of them in evidence in a suit between private parties.^' PABDONING PO.WEB. 74, The President has power, under the constitution, to grant re- prieves and pardons for offenses against the United States, ex- cept in cases of impeachment. A pardon is "an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment which the law inflicts for a crime he has committed." "^ As the pardoning power is a general executive function, we shall, to avoid repetition, postpone a detailed discussion 2 6 Kendall v. U. S., 12 Pet. 524, 9 L. Ed. 1181. And see Marbury v. Madison,. 1 Cranch, 137, 2 L. Ed. 60 ; Decatur r. Paulding, 14 Pet. 497, 10 L. Ed. 559. See ante, p. 95. See "Mandamus," Dec. Dig. (Key No.) § tl; Cent. Dig. § 133. 2 6 Eunkle v. U. S., 122 U. S. 543, 7 Sup. Ct. 1141, 30 L. Ed. 1167. But his action, in such a matter, need not be evidenced under his own hand, but may- be shown in other ways. U. S. v. Fletcher, 148 U. S. 84, 13 Sup. Ct. 552, 37 L. Ed. 378. See "United States," Dec. Dig. (Key No.) § 26; Cent. Dig. § 17; "Army and Navy," Cent. Dig. § 97. 2 7 Anderson v. Hamilton, 8 Price, 244 ; Beatson v. Skene, 5 Hurl. & N. 838 ; 1 Greenl. Ev. §§ 250, 251 ; 15 Op. Attys. Gen. 378 ; Id. 415 ; 16 Op. Attys. Gen. 24. Nor can public documents, such as vouchers for the payment of public money, be taken from the custody of one of the departments by a writ of replevin at the suit of a private party. Brent v. Hagner, 5 Cranch, C. C. 71,. Fed. Cas. No. 1,839. See "Replevin," Dec. Dig. (Key No.) § 4; Cent. Dig. § 9. 28 U. S. V. Wilson, 7 Pet. 160, 8 L. Ed. 640. See "Pardon," Dec. Dig. (Key No.) §§ 1, 9; Cent. Dig. §§ 1, 16. 122 THE FEDERAL EXECUTIVE. (Ch. 6 of it to the chapter relating to executive power in the states. ^'' At present it is only necessary to call attention to a few points arising un- der the federal constitution. Although that instrument vests in the President the power to grant reprieves and pardons, it is held that this does not prevent congress from granting amnesty, either before legal proceedings are taken, during their pendency, or after conviction.'" The pardoning power also includes the power to remit fines, penalties, and forfeitures, and it may in the last resort be exercised for this pur- pose by the chief executive, although it is in many cases by the laws of the United-States confided to the secretary of the treasury, with respect to cases arising under the revenue laws.'^ THE TBEATT-MAKING POWER. 75. The constitution provides that the President shall have ponrer, by and -nrith the advice and consent of the senate, to make trea- ties, provided that tivo-thirds of the senators present concur. 76. All treaties which shall he made under the authority of the Unit- ed States are declared to be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notivith- standing. This power embraces the making of treaties of every sort and con- dition; for peace or war, for commerce or territory, for alliance or succors, for indemnity, for injuries or payment of debts, for the recog- nition and enforcement of principles of public law, for the regulation of immigration and the rights of aliens, for rules of navigation, for arbitrations, and in short, for all the varied purposes which the policy or interests of independent sovereigns may dictate in their intercourse with each other.^^ Aside from the limitations and prohibitions im- posed by the "constitution on the federal government, the power of treaty-making is given to that government, without restraining it to 2 9 Infra, c. 11, pp. 322-325. 80 Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 644, 40 L. Ed. 819. 8ee "Ooru- ■stitutional Law," Dec. Dig. (Key No.) § 58; Cent. Dig. § 87. ' 31 The Laura (C. C.) 8 Fed. 612; Macheca v. U. S. (C. C.) 26 Fed. 845. The President has no power to interfere with a public prosecution, except to put an ■end to it and discharge the accused ; he has no power to change the proceed- ings nor the place of trial. United States v. Corrie, Fed. Cas. No. 14,869. See ■"Pardon," Dec. Dig. (Key No.) § 4; Cent. Dig. § 5. 82 2 Story, Const. § 1508. §§ 75-76) THE TREATY-MAKING POWER. 123 particular objects, in as plenipotentiary a form as held by any sover- - eign in any other society. The only questions which can arise in con- sidering the validity of a treaty are whether it is a proper subject of treaty according to international law or the usage and practice of civil- ized nations, and whether it is prohibited by any of the limitations of the constitution.^^ But while there is no express limitation on the power of the President as to the scope or the terms of the treaties which he may make, yet his authority is subject to certain restrictions neces- sarily implied from various parts of the constitution. There is an im- plied limitation which would prevent the political department from en- tering into any stipulations calculated to change the character of the government, or to do that which could only be done by the constitu- tion-making power, or which would be inconsistent with the nature ■and structure of the government or the objects for which it was form- ed. Treaties may be made, and frequently are made, having reference to commercial intercourse. But the executive could not constitutional- ly abrogate in this manner the power of congress to "regulate foreign commerce." ^* But the internal polity of the states does not impose any limitation upon the treaty-making power. Thus, the federal gov- ernment has constitutional power to enter into treaty stipulations with foreign governments for the purpose of restricting or abolishing the property disabilities of aliens or their heirs within the several states.^" And the United States may, by treaty, release to a foreign government an indebtedness due from that government to a private American citi- zen; but this will constitute a taking of such citizen's property for public use, and it will be incumbent upon the government to compensate him therefor.'® Although a treaty, when concluded, becomes the law of the land, yet the power of treaty-making is not properly legislative but pertains to the political department. For this reason it is confided to the Presi- dent. But, lest the power should be perverted, by his unwisdom or dis- ss People V. Gerke, 5 Cal. 381. See "Treaties," Dec. Dig. (Key No.) §§ 1, 2; ■Cent. Dig. §§ 1, S. 34 Geofroy v. Rlggs, 133 U. S. 258, 10 Sup. Ct. 295, 33 L. Ed. 642. See "Trea- ties," Dec. Dig. {Key No.) §§ 1, 2; Cent. Dig. §§ 1, 2. 3 5 In re Droit d'Aubaine, 8 Op. Attys. Gen. 411; KuU v. KuU, 37 Hun (N. Y.) 476; Fulco v. Schuylkill Stone Co., 169 Fed. 98, 94 0. C. A. 498. See "Treaties," Dec. Dig. (Key No.) §§ 1, 2; Gent. Dig. §§ 1, 2; "Aliens," Deo. Dig'. {Key No.) § 13; Cent. Dig. §§ /,7-58. 36 Meade v. U. S., 2 Ct. CI. 224. See "Eminent Domain," Dec. Dig. (Key No.) §§ 2, 17; Cent. Dig. §§ 3, 90. 124 THE FEDERAL EXECUTIVE. (Ch. 6 loyalty, to the destruction of the country, a check is placed upon it by requiring the ratification of the senate. But it will be observed that the functions of the senate are only advisory, or at most extend to ac- cepting or rejecting the work of the President. He alone has the right to determine whether a treaty shall be made. The senate cannot make a treaty nor dictate its terms. It might indeed advise the making of a treaty, but the President would be in no wise bound to heed its recom- mendations. Nor is he bound to consult the senate in advance. It may suggest amendments to a completed treaty, but these must be accepted by the President to be of any force. But, again, the latter has no pow- er to make treaties except by and with the advice and consent of the senate, and with the concurrence of two-thirds of its members present. Hence a treaty which' has not been thus ratified by the senate is wholly inoperative to affect antecedent laws or rights acquired under them.*' The signature of the President is essential to the validity of a treaty;, and it does not take effect, though ratified by the senate, until he has signed it.** By the law of nations all treaties operating upon purely national' rights, as well those for the cession of territory as for other purposes, are binding upon the contracting parties, unless it is otherwise provided in them, from the day they are signed ; the ratification of them relates back to the time of signing.** But this rule does not apply when the treaty operates on individual rights. There the principle of relation does not apply to such rights which were vested before the treaty was. ratified, and in so far as it affects them it is not considered as concluded until there is an exchange of ratifications.*" If the treaty is self-ex- ecuting, it takes effect and becomes binding at once.*^ But a treaty containing provisions to be executed in the future is in the nature of a contract, and does not become a rule for the courts until legislative ac- 8 7 U. S. V. Frelinghuysen, 2 Mackey (D. C.) 299. See "Treaties," Dec. Dig.. (Key No.) § 4; Cent. Dig. § 4. 3 8 Shepard v. Insurance Co. (C. C.) 40 Fed. 341. See "Treaties," Dec. Dig. ,(Eey No.) § 9 J Cent. Dig. § 9. 39 Davis V. Police Jury of Parish of Concordia, 9 How. 280, 13 L. Ed. 138;: Garcia v. Lee, 12 Pet. 511, 9 L. Ed. 1176. See "Treaties," Deo. Dig. (Key No.), § 9; Cent. Dig. § .9. io Haver v. Yaljer, 9 Wall. 32, 19 L. Ed. 571; Bush v. U. S., 29 Ct. CI. 144; U. S. V. Grand Rapids & I. R. Co., 165 Fed. 297, 91 C. C. A. 265; Beam v. U. S., 43 Ct. CI. 61. See "Treaties," Dec. Dig. (Key No.) § 9; Cent. Dig. § 9. 41 Foster v. Nellson, 2 Pet. 253, 7 L. Ed. 415. See "Treaties," Dec. Dig. (Key/ No.) §§ i, 9, 12; Cent. Dig. §§ 1, 9, 12. |§ 75-Y6) THE TREATY-MAKING POWER. 125 tion shall be had on the subject.'"' If the treaty involves the payment of money to the foreign power (as in the case of purchase of territory), the very important question arises whether congress is bound as a mat- ter of law to make the necessary appropriations, or whether, by refus- ing to vote the amount required, that body can nullify the treaty. On this point opinion has always been divided. The position taken by the house of representatives has negatived the idea that there was any such compulsion resting upon it. On the other hand, if congress could thus block the progress of international business wherever appropria- tions were needed, the President and senate would be stripped of a main » This statute in effect de- nied to the President the power to remove public officers without the consent of the senate. And it provided that, if good cause for the re- moval of any officer should arise during a recess of the senate, the President should only have the power to suspend the officer until the next session of the senate. But this statute was repealed by an act pass- ed in 1887, which apparently amounts to a concession that the power of removal in such cases belongs to the President alone. '^ In the case of vacancies happening during the recess of the senate, the President has power to make appointments to such offices, at his own pleasure and discretion, but such appointments hold good only until the end of the next session. There is some doubt as to whether a newly created office, which never has been filled, presents a case of "vacancy" within the meaning of this provision. In prac- tice, the question has been decided both ways. But the plain infer- ences from the context seem to indicate with sufficient clearness that the constitution originally contemplated only those offices which were 5 5 2 Story, Const. §§ 1537-1544; Pom. Const. Law, §§ 647-661; Miller, Const, pp. 156-162. oe Eev. St. 'U. S. § 1767 et seq. e' 24 Stat. 500. Bl.Const.L.(3d.Ed.)— 9 130 THE FEDERAL EXECUTIVE. (Ch. 6 in existence and filled before the particular recess began.^' It has also been ruled by the courts that if a vacancy in an office occurs dur- ing the session, but remains unfilled at the end of the session, this is a case of vacancy "happening" during the recess." But the President has no power to anticipate a vacancy and make an appointment in advance to fill it.°" A commission issued by the President to fill a vacancy in an office, during a recess of the senate, continues in force until the end of the next session of congress, unless sooner determined by the Presi- dent, even although the person commissioned shall have been in the meantime nominated to the office, and his nomination rejected by the senate."^ It should further be remarked that the power of removal from office is a purely executive function and has not been intrusted to the judicial department of government,"^ also that where a statute creates an office and fixes its compensation, the appointing power can neither increase nor diminish it.°' But the power to suspend an offi- cer without compensation is incidental to the power to appoint and discharge.'* Civil Service Act and Rules and Tenure of Office Thereunder. The civil service law, enacted by congress in 1883,°° was intended to provide a body of civil officers selected solely for competence and fitness and not for political reasons,"' and to protect them against wholesale removal upon a change in the political complexion of the administration and from individual ouster from the public service for merely political considerations. This act is held to be within the B8 2 Story, Const. § 1559; McCrary, Elect. § 237. B» In re Farrow (0. C.) 4 Woods, 491, 3 Fed. 112. See "Vnited States," Dec. Dig. (Key No.) § 85; Cent. Dig. § 23. 60 McCrary, Elect. § 257. 61 In re Marshalship of Alabama (D. C.) 20 Fed. 379. See "United States," Dec. Dig. (Key No.) § 35; Cent. Dig. § 22. 62 Keim v. United States, 33 Ct. CI. 174. See "United States," Dec. Dig. {Key No.) § S6. 6 3 Miller v. United States (C. C.) 103 Fed. 413; Whiting v. United States, 35 Ct. CI. 291. See "Officers," Deo. Dig. (Key No.) § 100; Cent. Dig. § 152; "Unit- ed States," Dec. Dig. (Key No.) § 39; Cent. Dig. § 25. ei Wertz v. United States, 40 Ct. CI. 397. See "Officers," Dec. Dig. (Key No.) § 71; Cent. Dig. § 99. 6 6 Act Cong. Jan. 16, 1883, e. 27, 22 Stat. 403 (U. S. Comp. St. 1901, p. 1217). 6 6 Carr v. Gordon (0. C.) 82 Fed. 373. See "United States," Dec. Dig. (Key No.) § 35. §,§ 77^78) APPOINTMENTS TO OFFICE. 131 legitimate scope of the general powers of congress."'' It creates a civil service commission, to hold competitive exaihinations and certify lists of persons thereby shovirn to be eligible, from among whom the appointments are to be made. Authority is also given to the com- mission, to the President, and to the heads of departments under his direction, to make and promulgate rules regulating the classification of public servants, the conditions of eligibility, and the matter of pro- motions, and extending the classified service to employes of the gov- ernment not originally embraced in it.*' It now embraces practically all the clerks and subordinate officers of the government, excluding of course the army and navy and those higher officers whose close relation to the administration requires them to be in political sympathy with it.*' This statute does not deprive the appointing power of any right of removal, except on the single ground of failure to contribute money or services to a political party, nor restrict or limit the President or the heads of departments in respect to removals from office, save only in the one particular mentioned;'" but a presidential rule pro- vides that no removal shall be made without giving the accused notice and an opportunity to make defense ; this, however, is not a law, and does not give the holder of an office a vested right to it within the protection of the courts,'^ and generally the judiciary will not review or reverse the action of the executive in removing or dismissing a clerk or officer.''^ 67 Butler V. White (0. C.) 83 Fed. 578. See "Vnited States," Dec. Dig. (Key ^0.) § 35. 68 United States v. Wicljersham, 201 U. S. 390, 26 Sup. Ct. 469, 50 L. Ed. 798; Carr v. Gordon (C. C.) 82 Fed. 373; United States v. Bowyer, 25 App. D. C. 121. See "Vnited States," Dec. Dig. (Key No.) §§ 35, 36. 68 See Priddie r. Thompson (C. C.) 82 Fed. 186 ; Butler v. White (C. 0.) 83 Fed. 578. See "Vnited States," Dec. Dig. (Key No.) §§ 35, 36. 7 Carr v. Gordon (C. C.) 82 Fed. 373; United States v. Taft, 24 App. D. C. 93; Brown v. United States, 39 Ct. CI. 255. See "Vnited States," Dec. Dig. (Key No.) §§ 35, 36. 71 Page V. Moffett, 85 Fed. 38. See "Vnited States," Dec. Dig. (Key No.) §§ 35, 36. 7 2 United States v. Taft, 24 App. D. C. 95; Lellman v. United States, 37 Ct. CI. 128. See "Vnited States," Dec. Dig. (Key No.) §§ 55, 36. 1B2 THE FEDERAL EXECUTIVE. (Ch. 6 PRESIDENTIAL MESSAGES. 79. Tlie President is not only empowered, bnt he is recinired, from time to time, to give to congress information of the state of the ITnion, and recommend to their consideration such meas- nres as he shall judge necessary and expedient. Under the first two Presidents of the Republic, it was the custom for the chief executive to meet the two houses of congress in person, at the opening of each session, and address them upon the state of the Union, recommending at the same time such acts of legislation as he deemed important or necessary. But from the time of Jefferson on, it has become the invariable practice for the President to make all his communications to congress, under this clause of the constitution, in writing. An annual message is prepared by the President and delivered to congress- by his private secretary. And from time to time he sends to congress special messages relating to particular topics of national interest, often accompanied by correspondence or other documents. It is also usual for congress to request the President to communicate to it facts or papers in his possession or knowledge which bear upon any subject to which the attention of congress is addressed, either by way of contemplated legislation or of investigation. These requests are always complied with, unless in the judgment of the executive the interests of the nation require that such facts or documents, or the dealings of the executive department with the subject in hand, should for the present be kept secret. CONVENING AND ADJOURNING CONGRESS. SO. The President may, on extraordinary occasions, convene both houses of congress or either of them, and in case of disagree- ment between them, -with respect to the time of adjourn- ment, he may adjourn them to such time as he shall think proper. This power is seldom exercised to the extent of calling together both houses of congress in extra sessions. But it is usual for a newly inaugurated ■ President to call an extra session of the senate, for the purpose of confirming the nominations to his cabinet, and considering other important nominations. As to the power to adjourn congress in case of a disagreement as to the time of adjournment, it is said that this power is equally as indispensable as that to convene them. § 81) DIPLOMATIC RELATIONS. 133 For it is the only peaceable way of terminating a controversy which can lead to nothing but distraction in the public councils.'* DIPLOMATIC RELATIONS. 81. By Tlrtne of the treaty-making -poxrev combined vith the potrer to receive the diplomatic agents of foreign governments, the President has entire control over the foreign relations of the United States. The constitution provides that the President "shall receive ambas- sadors and other public ministers." This grant of authority, to- gether with the treaty-making power, invests the federal executive with entire control over the foreign relations of the United States. It is somewhat remarkable that foreign consuls should not have been mentioned in this clause. For they do not come under the designation of "public ministers," not being diplomatic agents, but mere commer- cial representatives of foreign powers, and yet they exercise very im- portant powers within their own sphere of action. But the power of the executive to receive them and recognize their credentials may fairly be inferred from other parts of the constitution. And indeed foreign consuls have never been allowed to discharge any functions of office until they have received the exequatur of the President.'* The power to receive foreign ministers necessarily implies the power in the President to refuse to receive any particular person accredited to him by a foreign government, whether the ground of his refusal *be that he is unwilling to consider the special subject with relation to which the diplomatic agent is sent, or because he prefers not to recog- nize the accrediting authority as a rightful government, ^r whether his reasons are merely personal to himself. And after a foreign minister has been received by the President, the latter has the power, for rea- sons satisfactory to himself, to request the accrediting government to recall the minister, or, in case of refusal or delay in recalling him, to dismiss him or refuse longer to hold relations with him. But the most important feature of the President's diplomatic power is the au- thority to give recognition to the party or persons claiming to be the rightful government of a foreign country, or to withhold it. The re- ception of a diplomatic representative is equivalent to a formal recog- nition by the receiving power that the party or faction sending him is "2 Story, Const. S 1563. ^*U. § 1565. 134 THE FEDERAL EXECUTIVE. (Ch. 6 at least the de facto government of that country. And in this respect the constitution appears to give the President unrestrained authority and consequently unlimited discretion. The question has indeed been raised whether congress could not, by a solemn declaration, disavow or repudiate the action of the executive in either giving or withholding recognition of a de facto government. But as no necessity for such a course has yet arisen, the question has remained one of abstract in- terest only, and has never received an authoritative answer. One prin- ciple, however, is certain and well settled. The determination of the question which of two opposing governments, each claiming to be the rightful government of the state or country, is the legitimate power, does not belong to the courts. The judicial department cannot take notice of, or recognize, any new government or sovereignty, until if has been officially recognized by the political departments of the gov- ernment.^" EXECTJTION OF THE LAWS. 82. The President is required by tlie constitution to "tabe care that the laws be faithfully executed." The President "is provided with the means of fulfilling this obliga- tion by his authority to commission all the officers of the United States, and, by and with the advice and consent of the senate, to ap- point the most important of them and to fill vacancies. He is declar- ed to be commander in chief of the army and navy of the United. States. The duties which are thus imposed upon him he is further enabled to perform by the recognition in the constitution, and by the creation by acts of congress, of executive departments, which have varied in number from four or five to seven or eight, the heads of which are familiarly called cabinet ministers. These aid him in the performance of the great duties of his office, and represent him in a thousand acts to which it can hardly be supposed his personal attention is called, and thus he is enabled to fulfill the duty of his great depart- ment, expressed in the phrase that 'he shall take care that the laws 7 5 Gelston v. Hoyt, 3 Wheat. 324, 4 L. Ed. 381; U. S. v. Palmer, 3 Wheat. 610, 631, 643, 4 L. Ed. 471 ; The Divina Pastora, 4 Wheat. 52, 4 L. Ed. 512 ; The Neustra Senora de le Caridad, 4 Wheat. 497, 4 L. Ed. 624 ; Rose v. Himely, 4 Cranch, 241, 2 L. Ed. 608 ; Luther v. Borden, 7 How. 1, 12 L. Ed. 581. Bee "Constitutional Law," Dec. Dig. (Key No.) § 68; Cent. Dig. § 125; Intemor tional Law," Dec. Dig. (Key No.) § 4; Cent. Dig. § ^. § 82) EXECUTION OF THE LAWS. 135 be faithfully executed.' "'* While congress cannot delegate to the President any legislative power, yet it may give him the power, upon ascertaining the existence of a state of facts provided for in the stat- ute, to suspend the operation of an act of congress.'' Bxecutive Proclamations. In English law, a proclamation is "a notice publicly given of any- thing whereof the king thinks fit to advertise his subjects." In Amer- ican law, it is a formal and official public notice, issued by the chief executive in his own name, intended for the notice of all persons who may be concerned, announcing some statute or treaty, or some public act or determination, or intended action, of the executive department, which otherwise might not be so widely or so quickly promulgated. The making of proclamations is not an assumption of legislative pow- ers. These documents have not the force of law, although congress may make the taking effect of an act, or of some of its provisions, de- pend upon the existence of a state of facts to be ascertained and pro- claimed by the President. Proclamations are issued on a great variety of occasions. It is usual in this maimer to announce the admission of a new state into the Union ; the ratification of a treaty with a for- eign power, when it contains provisions which may affect the dealings of private persons ; the intention of the United States to maintain a position of neutrality between contending powers, or the intention of the government to enforce the neutrality laws with strictness; the granting of an act of pardon or general amnesty ; the reciprocity fea- tures of a commercial treaty or tariff act ; and the annual appointment by the President of a day of public thanksgiving. Perhaps the most celebrated proclamation ever issued in this country was that by which President Lincoln announced the emancipation of the slaves. The same President, in 1861, issued a proclamation of blockade, announcing his intention to blockade all the ports of the states then in insurrection, and giving neutral vessels fifteen days from the commencement of ac- tual blockade to leave those ports. The authority of the President to issue proclamations is sometimes derived from acts of congress specifically empowering him to do so in relation to a particular matter, and in otlier cases appears to be derived from his duty to take care that the laws be faithfully executed. 76 In re Neagle, 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55. See "Vnited States," Dec. Dig. (Key No.) § 26; Cent. Dig. § 17. T! Marshall Field & Co. v. Clark, 143 U. S. 649, 12 Sup. Ct. 495, 36 L. Ed. 294. See "Constitutional Law," Deo. Dig. (Key No.) § 62; Cent. Dig. § 9^. 136 THE FEDERAL EXECUTIVE. (Ch. 6 In regard to the observance of neutrality laws, for instance, it may not be obligatory upon the President to warn the people of the conse- quences attending their infraction, but still it is eminently proper for him, at times when there is danger of a breach of those laws, to ad- vise all persons of the intention of the government with regard to their enforcement. The custom in the United States is that the President shall sign the proclamation and the secretary of state affix the seal of the United States and attest it. Such documents are commonly published in the newspapers, and also printed with the acts and resolutions of con- gress in the volumes published at the end of each session. But a proc- lamation, to be effective, need not be given out through the press; it may take effect when it is signed and sealed, although not actually published until some days later.'* Executive Rules and Orders. Rules and orders promulgated by the President or by the heads of departments under his authority, relating to the conduct of public business or to the civil service or other administrative matters, have not the force of law and are not statutes in any sense; and although they are effective for the internal control and government of the ex- ecutive departments, courts of equity have no jurisdiction or authority to enforce them.'* IMPEACHMENT. 83. Impeachment proceedings, resulting, upon conviction, In removal from office, may be instituted against (a) The President. (b) The Vice-President. (c) All civil officers of the United States. 84. The following offenses render the perpetrator liable to prosecu- tion and trial by impeachment: (a) Treason. (b) Bribery. (c) Other high crimes and misdemeanors. 85. Judgment in cases of impeachment shall not extend further than to removal from office and disc|nalification to hold office under the United States. 7 8 Lapeyre v. United States, 17 Wall. 191, 21 L. Ed. 606. See "War," Dec. Dig. (Key No.) § 29; Cent. Dig. § 203. "Morgan v. Nunn (G. C.) 84 Fed. 551; Taylor v. Kercheval (C. C.) 82 Fed. 497 ; Carr v. Gordon (C. C.) 82 Fed. 373. See "Vnitea States," Dec. Dig. {Kep No.) §§ S5, 36. §§ 83-85) IMPEACHMENT. 137 The federal constitution contains the following provisions relating to the subject of impeachment: The President, the Vice-President, and all civil officers of the United States may be removed from office on impeachment for, and conviction of, treason, bribery, and other high crimes and misdemeanors. The house of representatives has the sole power of impeachment, and the senate the sole power to try all im- peachments. When sitting for that purpose, they are to be on oath or affirmation. When the President is tried, the chief justice shall preside. No person shall be convicted without the concurrence of two-thirds of the senators present. Judgment in case of impeachment shall not extend further than to removal from office and disqualifica- tion to hold and enjoy any office of honor, trust, or profit under the United States ; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law. By an express provision of the constitution, the right of trial by jury does not extend to cases of impeachment. The persons liable to impeachment under the federal constitution are the President, the Vice-President, and "all civil officers of the United States." This excludes, in the first place, all private and un- official persons. In the next place, it excludes all officers of the army, navy, and marine corps, because they cannot properly be called "civil" officers, and because they are triable for offenses by courts martial and under the laws of war. It is also settled, by a legislative precedent, that a senator of the United States is not liable to impeachment. In gener- al, so far as the matter can be said to be definitely settled, it appears that the officers liable to this process are those who are commissioned by the President (as provided by section 3, art. 2, of the constitution) excepting those employed in the land and naval forces, but including all the federal judges.*" • Treason and bribery are well defined crimes. But the phrase "other high crimes and misdemeanors" is so very indefinite that practically it is not susceptible of exact definition or limitation, but the power of impeachment may be brought to bear on any offense against the con- stitution or the laws which, in the judgment of the house, is deserving of punishment by this means or is of such a character as to render 80 Private citizens are not amenable to impeacliment ; nor can articles of Impeacliment be preferred against a person after he has gone out of office. State V. Hill, 37 Neb. 80, 65 N. W. 794, 20 L. H. A. 573. -See "States," Deo. Dig (Key No.) $ 52; Cent. Dig. § 57. 138 THE FEDERAL EXECUTIVE. (Ch. 6 the party accused unfit to hold and exercise his office. It is of course primarily directed against official misconduct. Any gross malversa- tion in office, whether or not it is a punishable offense at law, may be made the ground of an impeachment. But the power of impeachment is not restricted to political crimes alone. The constitution provides that the party convicted upon impeachment shall still remain liable to trial and punishment according to law. From this it is to be infer- red that the commission of any crime which is of a grave nature, though it may have nothing to do with the person's official position, except that it shows a character or motives inconsistent with the due administration of his office, would render him liable to impeachment. It will be perceived that the power to determine what crimes are im- peachable rests very much with congress. For the house, before pre- ferring articles of impeachment, will decide whether the acts or con- duct complained of constitute a "high crime or misdemeanor." And the senate, in trying the case, will also have to consider the same ques- tion. If, in the judgment of the senate, the offense charged is not im- peachable, they will acquit; otherwise, upon sufficient proof and the concurrence of the necessary majority, they will convict. And in either case, there is no other power which can review or reverse their decision. ^^ The constitution provides that the judgment, in cases of impeach- ment, shall not extend further than to removal from office and dis- qualification from further office. Since it also provides that the offi- 81 Where, In an impeachment proceeding, the act of official delinquency con- sists in the Violation of some positive provision of the constitution or a stat- ute, which is denounced as a crime or misdemeanor, or where it is a mere neglect of duty, willfully done, with a corrupt intention, or where the negli- gence is so gross, or the disregard of duty so flagrant, as to warrant the infer- ence that It was willful and corrupt, It is a misdemeanor in office. But where such act results from a mere error of judgment or omission of duty, without the element of fraud, or where the alleged negligence is attributable to a mis- conception of duty, rather than a willful disregard thereof, it is not impeach- able, although it may be highly prejudicial to the interests of the state. State V. Hastings, 37 Neb. 96, 55 N. W. 774. See, further, as to the question what offenses are impeachable. Pom. Const. Law, §§ 717-727; 1 Story, Const. §§ 785, 796-805; Miller, Const, pp. 171, 214. With respect to the introduction of evidence and the quantum of proof required to warrant a conviction, im- peachment Is essentially a criminal prosecution; hence the guilt of the ac- cused must be established beyond a reasonable doubt. State v. Hastings, 37 Neb. 96, 55 N. W. 774. See "States," Deo. Dig. (Key No.) § 52; Cmt. Dig. § 57. §§ 83-85) IMPEACHMENT. 139 cers who are subject to this process shall be removed from office upon conviction under articles of impeachment, it follows that the party accused, if he is found guilty, must be adjudged to be removed from his office. But it rests in the discretion of the senate whether or not to add to this sentence the judgment of disqualification. The nature of this punishment is political only. Conviction upon impeachment is the single case in which the pardoning power of the President cannot be exercised. 140 FEDERAL JURISDICTION. (Ch. 7 CHAPTER Vn. FEDERAL JURISDICTION. 86-88. Courts of the United States. 89. Judicial Power of the United States. 90. United States as a Party. 91. States as Parties. 92-93. Jurisdiction of Supreme Court. 94-97. Powers and Procedure of Federal Courts. 98. Removal of Causes. COURTS OF THE UNITED STATES. 86. The constitution provides that the judicial power of the United States shall he vested in one supreme court and i»i such in- ferior courts as congress may from time to time estahlish. 87. The federal judicial system, as established by the constitution and acts of congress, compromises: (a) The supreme court of the United States. (b) The circuit courts of appeals. (c) The circuit courts. (d) The district courts, (c) The court of claims. (f) The court of customs appeals. 88. In addition, congress has established or authorized the follow- ing local or special tribunals, not a part of the federal judicial system: (a) The territorial courts. (b) The courts of the District of Columbia. (c) Consular courts. (d) Courts-martial. Power of Congress to Bstablish Courts. The supreme court, being provided for by the constitution, is. largely independent of congress. It could neither be abolished nor stripped of any part of its original jurisdiction by any act of congress. But the number of the judges of the supreme court is left to the deter- mination of congress. The number might be indefinitely increased. But since a judge of this court could not be lawfully legislated out of his office, the number of the judges could not be diminished in any other way than by providing that vacancies, as they might occur, should §§ 86-88) COUETS OF THE UNITED STATES. 141 not be filled up, until the number of judges was reduced to a prescrib- ed minimum. So the jurisdiction of the court, except in so far as it is granted by the constitution, is within the control of congress, and may be enlarged or restricted as that body may determine. But the courts of the United States inferior to the supreme court do not derive their judicial powers immediately from the constitution. They depend for their jurisdiction upon congressional legislation.^ And the discretion of congress in respect to the number, character, and territorial limits of the courts among which it will distribute the judicial power of the United States is unrestricted, except as to the supreme court. ^ However, congress could not lawfully confer any part of the federal judicial power on the courts of a state, nor on any courts not established by its own authority.' Since the judges of all the federal courts are to hold their offices during good behavior, it is not within the power of either congress or the President to remove them at pleasure. A more difficult question is as to the power to legis- late a judge out of his office by abolishing the court in which he sits. This has in fact been done by congress, and the legislative precedent, as far as it goes, is therefore in favor of the existence of such a power. The Federal Courts. The federal system of courts, as at present constituted, consists of the supreme court of the United States, a circuit court of appeals in each of the nine circuits, nine circuit courts, sixty-six district courts, the court of claims, and the court of customs appeals. No mention is here made of the territorial courts, which are not constitutional courts, nor of the courts in the District of Columbia. ■■ TJ. S. V. Hudson, 7 Cranch, 32, 3 L. Ed. 259 ; Sewing-Machine Companies' Case, 18 Wall. 553, 21 L. Ed. 914 ; United States v. Barrett (C. C.) 135 Fed. 189. See "Courts," Dec. Dig. (Key No.) § 255; Cent. Dig. § 7.94. 2 U. S. v. Union Pac. R. Co., 98 U. S. 569, 602, 25 L. Ed. 143 ; Geiger v. Ta- coma Ry. & Power Co. (C. C.) 141 Fed. 169 ; Peters v. Hanger, 136 Fed. 181, 69 C. C. A. 197; North Bloomfleld G. Min. Co. v. United States, 83 Fed. 2, 27 0. C. A. 395 ; McDowell v. Kurtz, 77 Fed. 206, 23 C. C. A. 119. See "Courts," Dec. Dig. (Key No.) § 258; Cent. Dig. § 793. 3 Martin v. Hunter, 1 Wheat. 304, 4 L. Ed. 97 ; Stearns v. U. S.', 2 Paine, 300, Fed. Cas. No. 13,341. But the power to arrest deserting seamen in the merchant service and deliver them on board their vessels is not a part of the judicial power defined by the constitution, and congress had power to confer it on justices of the peace. Robertson v. Baldwin, 165 U. S. 275, 17 Sup. Ct. 326, 41 L. Ed. 715. See "Courts," Dec. Dig. (Key No.) §§ U, 258; Cent. Dig. § 793. 142 FEDERAL JURISDICTION. (Ch. 7 Territorial Courts. The territorial courts "are not constitutional courts in which the judicial power conferred by the constitution on the general govern- ment can be deposited. They are legislative courts, created in virtue of the general right, of sovereignty which exists in the government, or in virtue of that clause which enables congress to make all needful rules and regulations respecting the territory belonging to the United States. The jurisdiction with which they are invested is not a part of that judicial power which is defined in the third article of the consti- tution, but is conferred by congress in the execution of those general powers which that body possesses over the territories of the United States." * Congress may therefore invest the courts of the territories with as much or as little jurisdiction as it may see fit, or with such measure as appears reasonable, necessary, and adapted to the local conditions prevailing. While the organic act for a territory establish- es, and to some extent limits, the jurisdiction of the territorial courts, it generally leaves to the control of the territorial legislature such mat- ters as the regulation of rules of procedure and the forms and modes of pleading.'' The effect of the admission of a territory as a state of the Union and the erection of federal courts therein is ipso facto to extinguish the territorial government and the territorial courts as courts of the general government. But provision is usually made for continuing the territorial courts as the temporary courts of the state, and for the transfer to the federal courts of such pending causes as are properly of federal cognizance.* i American Ins. Co. v. Canter, 1 Pet. 511, 7 L. Ed. 242 ; Clinton v. Engle- brecht, 13 Wall. 434, 20 L. Ed. 659 ; Forsythe v. U. S., 9 How. 571, 13 L. Ed.- 262 ; Good v. Martin, 95 U. S. 90, 24 L. Ed. 341 ; McAllister v. U. S., 141 U. S. 174, 11 Sup. Ct. 949, 35 L. Ed. 693 ; Wallace v. Adams, 143 Fed. 716, 74 C. C. A. 540. See "Courts," Dec. Dig. (Key No.) § 428; Cent. Dig. § 1133. 5 Sperling v. Calfee, 7 Mont. 514, 19 Pac. 204. See "Courts," Dec. Dig. (Key No.) §§ 429, 430, 432-438; Cent. Dig. §§ 1139-1142. eAmes v. Railroad Co., 4 Dill. 251, Fed. Cas. No. 324; United States v. Doo-nocb-keen, 2 Alaska, 624. Tlie police court of the District of Columbia is not a court of the United States, within the meaning of the federal consti- tution. United States v. Mills, 11 App. D. C. 500. As to status of the supreme court of the District of Columbia see In re MacFarland, 30 App. D. C. 365. As to the establishment of a provisional court in Porto Rico by order of the war department, and afterwards of a IJnited States district court by act of con- gress, see Basso v. United States, 40 Ct. CI. 202 ; Ribas y Hijo v. United States, 194 U. S. 315, 24 Sup. Ct. 727, 48 L. Ed. 994. See "Courts," Dec. Dig. {Key No.) § 431; Cent. Dig. §§ 1143-1149. §§ 86-88) COURTS OF THE UNITED STATES. 143 Consular Courts. Congress has provided for courts, called "consular courts," in cer- tain non-christian countries, which are presided over by the United States consul at the port where the court is held, and which are in- vested with civil and criminal jurisdiction over Americans in that place, but proceed without a jury. Their establishment is authorized by treaties made with foreign countries, granting rights of ex-terri- toriality to the United States for this purpose. The object is to with- draw citizens of the United States from the operation of the crude, barbarous, or uncertain systems of justice there prevailing. It is held that these are valid courts, and that a judgment of a consular court, passing sentence of death upon an American seaman for a murder com- mitted by him within the jurisdiction of the court, is valid, notwith- standing there was no indictment nor trial by jury, when there was a fair trial before the consul and four assessors. The constitution, it was said, was made for the United States, and not for foreign countries, and can have no operation outside the limits of the United States.' Courts-Martial. ' Under the power to "make rules for the government and regulation of the land and naval forces" congress has authority to provide for the trial and punishment of military and naval offenses in the manner practiced by all civilized nations, that is, by courts-martial. But these courts are not a part of the federal judicial system. The power to es- tablish them is not derived from, nor is it connected with, the third article of the constitution, defining the judicial power of the United States; the two powers are entirely independent.* "Not belonging to the judicial branch of the government, it follows that courts- martial must pertain to the executive department; and they are in fact simply instrumentalities of the executive power, provided by congress for the President as commander in chief, to aid him in prop- erly commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of his authorized military rep- resentatives." * The President is therefore invested with general and 7 In re Ross, 140 U. S. 453, 11 Sup. Ct. 897, 35 L. Ed. 581. See "Anibassw- dors and Consuls," Dec. Dig. (Key No.) § 6; Cent. Dig. §§ X6-20. 8 Dynes v. Hoover, 20 How. 65, 15 L. Ed. 838 ; Kurtz v. Moffltt, 115 U. S. 487, 6 Sup. Ct. 148, 29 L. Bd. 458; Wales v. Whitney, 114 U. S. 564, 5 Sup. Ct. 1050, 29 L. Bd. 277. See "Army md Navy," Dec. Dig. (Key No.) §§ 43, U; cent. Dig. §§ 89-92. » 1 Winthr. Mil. Law (2d Ed.) 53. 144 FEDERAL JURISDICTION. (Ch. 7 discretionary power to order statutory courts-martial by virtue of his capacity as commander in chief, independently of the articles of war or other legislation of congress.^" The authority of these courts is strictly limited. A court-martial has no jurisdiction to try or punish any person who is not in the mili- tary service or subject to the military law.^^ The following persons are subject to their jurisdiction: The oiBcers and men of the army and navy and marine corps, and the militia when in the actual service of the United States, retired officers of the army and navy, and cer- tain classes of civilians who are subject to military discipline only in time of war. The last category includes such persons as sutlers, teamsters, newspaper correspondents, hospital officers and attendants, guides and scouts, and telegraphers.^^ To these must be added officers and soldiers retained by law under military jurisdiction after dismissal or discharge, prisoners under confinement in military prisons under- going sentences of courts-martial,^' and drafted men or conscripts who have been lawfully ordered to attend a rendezvous and disobey the summons.^* The provision of the fifth amendment that "no person shall be held to answer for a capital or otherwise infamous crime, unless on a pre- sentment or indictment of a grand jury" does not apply to the pro- ceedings of courts-martial, because "cases arising in the land or naval forces, or in the militia when in actual service in time of war or pub- lic danger," are expressly excepted from its operation. But these courts always exhibit to the accused a charge and specifications, in the nature of an indictment. And in accordance with the fundamental principles of justice, he is afforded an opportunity to be heard in his own defense, to summon witnesses, and to be confronted with the wit- nesses against him. 10 Id. 66. As to composition of courts-martial, see Walsti v. U. S., 43 Ct. CI. 225. 11 Wolfe Tone's Case, 27 How. State Tr. 613; Grant v. Gould, 2 H. Bl. 69; Wise V. Withers, 3 Cranch, 331, 2 L. Ed. 457 ; Ex parte Van Vranken (C. C.) 47 Fed. 888 ; Antrim's Case, 5 Phila. 278, Fed. Cas. No. 495 ; Jones v. Seward, 40 Barb. (N. Y.) 563. See "Army and Navy," Dec. Dig. (Key No.) § Uj Gent. Dig. § 91. 12 1 Wlnthr. Mil. Law (2d Ed.) 112-W2. 13 In re Craig (C. C.) 70 Fed. 969. See "Army and Navy," Dec. Dig. {Key No.) § U; Oent. Dig. § 91. 14 MeCall's Case, 5 Pliila. (Pa.) 259, Fed. Cas. No. 8,669. See "Army and Nmy," Dec. Dig. (Key No.) § U; Cent. Dig. § 91. §§ 86-88) COURTS OF THK UNITED STATES. 145 Within the sphere of their jurisdiction, the judgments and sentences of courts-martial are as final and conclusive as those of civil tribunals of last resort. The sentence of a court-martial, when confirmed, "is altogether beyond the jurisdiction or inquiry of any civil tribunal whatever, unless it shall be in a case in which the court had not juris- diction over the subject-matter or charge [or the prisoner] or one in which, having jurisdiction over the subject-matter, it has failed to ob- serve the rules prescribed by the statute for its exercise."^" A per- son imprisoned under the sentence of a court-martial may have a writ of habeas corpus to inquire into the validity of the custody in which he is held; but on such a writ the civil court will have no jurisdiction to consider any question except the jurisdiction of the court-martial and the validity of its sentence.^® But if, in fact, the court-martial proceeded without any jurisdiction, all its actions will be illegal, and not only will the party aggrieved thereby be entitled to recover his liberty upon a writ of habeas corpus, but also it follows that all the parties to the illegal trial are trespassers upon his rights, and he may recover damages from them in a proper suit in a civil court by the verdict of a jury.^'' Military Commissions. These quasi- judicial tribunals are to be distinguished from courts- martial. The latter are established only for the government of the military and naval forces, and subsist in time of peace as well as in war. But the former are erected only in actual warfare, or where martial law has been declared, and as an aid to the successful prose- cution of belligerent operations or the enforcement of martial law. IB Dynes V. Hoover, 20 How. 65, 15 L. Ed. 838; In re McVey (D. C.) 23 Fed. 878 ; Vanderheyden v. Young, 11 Johns. (N. Y.) 150 ; Mills v. Martin, 19 Johns. (N. Y.) 7 ; Duffield v. Smith, 3 Serg. & R. (Pa.) 590 ; MuUan v. U. S., 212 U. S. 516, 29 Sup. Ct. 330, 53 Xj. Ed. 632. See "Army and Navy," Dec. Dig. (Key No.) § 47; Cent. Dig. §§ H, 95. 16 In re Esmond, 5 Mackey (D. C.) 64; Johnson v. Say re, 158 U. S. 109, 15 Sup. Ot. 773, 39 L. Ed. 914 ; Barrett v. Hopkins (C. C.) 7 Fed. 312 ; McGorray v. Murphy, 80 Ohio St. 413, 88 N. E. 881. See "Habeas Corpus," Deo. Dig. (Key No.) § 9S; Cent. Dig. § S3. IT Dynes v. Hoover, 20 How. 65, 15 L. Ed. 838 ; MilUgan v. Hovey, 3 Biss. 13, Fed. Cas. No. 9,605. See "Army and Navy," Deo. Dig. (Key No.) § SS; Cent. Dig. S 76V2- BL.00NST.Ii.(3D.BD.)— 10 146 FEDERAL JURISDICTION. (Ch. 7 JTIDICIAI, POWER OF THE UNITED STATES. 89. Tte constitution declares that the judicial power of the United States shall extend to: (a) All cases in law or equity arising under the constitution or laws of the United States or treaties made under their au- thority. (b) All cases affecting ambassadors, other public ministers, and consuls. (c) All cases of admiralty and maritime jurisdiction. (d) Controversies to which the United States shall be a party. (e) Controversies betw^een two or more states. (f) Controversies between a state and citizens of another state. (g) Controversies between citizens of different states. (h) Controversies between citizens of the same state claiming lands under grants of different states. (i) Controversies between a state, or the citizens thereof, and for- eign states, citizens, or subjects. General Considerations. The judicial department of the federal government is invested, by this clause, with powers which are even more extensive than those of the legislative or executive branch.^ ^ It is clothed with jurisdiction over all controversies which may involve the interpretation of the national constitution or the enforcement of national laws and treaties, thus securing, so far as it rests with the courts, the supremacy of the central government within its proper sphere. And it possesses juris- diction in all those classes of cases where the intervention of the fed- eral judiciary is necessary or appropriate to insure the peaceful and harmonious relations of the states with each other, and to maintain the rights of citizens of the several states. But further, it was feared that the courts of the states might be influenced to an undue rigor, or un- fair discrimination, against citizens of other states or foreigners coming 18 This clause of the constitution is a grant and distribution of the judicial power of the United States. State v. Nast, 209 Mo. 708, 108 S. W. 563. And that power embraces all controversies of a justiciable nature arising within the territorial limits of the nation, no matter who may be the parties thereto, except so far as there are limitations expressed in the constitution on the general grant of judicial power. Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. G55, 51 L. Ed. 956. But this part of the constitution has reference only to the United States, and not to the states. People v. Botkin, 9 Cal. App. 244, 98 Pac. 861. See "Courts," Dec. Dig. (Key No.) § 258; Cent. Dig. § 793; "Con- stitutional Law," Dec. Dig. (Key No.) § 67; Cent. Dig. § 123, § 89) JUDICIAL POWER OF THE UNITED STATES. 147 before them as plaintiffs or defendants, and for that reason cases to which such persons should be parties were, for the most part, taken within the sphere of federal cognizance, even though they might not involve the maintenance or application of federal law. As the jurisdiction and authority of the national courts was not created or granted by the states, so it cannot be revoked, annulled, re- stricted, or in any way impaired by state statutes?" What are "Cases" at Law and in Equity. It will be noticed that the judicial power of the federal courts is ex- tended to all "cases" of a particular description. Before there can be any proper exercise of judicial power, a "case" must be presented in court for its action; and a case implies parties, an assertion of rights, or a wrong to be remedied.^" And it is further declared to be the intention of the constitution to restrict the judicial power to cases in courts of record. ^^ But as the power extends to all cases "in law or equity," all modes of procedure for the assertion of rights (with the exception of proceedings in admiralty) must be arranged under one class or the other, either law or equity. Hence the terms used include criminal cases, arising under the constitution or laws, as well as civil issues. ^^ And so of an examination of witnesses concerning a claim pending before the commissioner of pensions. ^^ But proceedings for the probate of a will or the settlement of the estate of a decedent are not suits of which the federal courts have jurisdiction, either original or by removal.^* 19 Walte V. Santa Cruz, 184 U. S. 302, 22 Sup. Ct. 327, 46 L. Ed. 552; But- ler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. 1, 84 C. C. A. 167 ; Williams v. Crabb, 117 Fed. 193, 54 C. C. A. 213, 59 L. R. A. 425 ; Taylor v. Louisville & N, R. Co., 88 Fed. 350, 31 C. C. A. 537 ; St. Louis & S. F. R. Co. V. Cross (O. C.) 171 Fed. 480. See "Courts," Deo. Dig. (Key No.) § 259; Cent. Dig. §§ 795, 796. 20 Miller, Const, p. 314. The assertion and trial of a claim against the United States in the court of claims is a "case." In re MacFarland, 30 App. D. C. 365. See "Constitutional Law," Dec. Dig. (Key No.) § 67; Cent. Dig. § J2S. 21 Robertson v. Baldwin, 165 U. S. 275, 17 Sup. Ct. 326, 41 L. Ed. 715. See "Oomts," Dec. Dig. (Key No.) § 257; Cent. Dig. § 79^. 22 Tennessee v. Davis, lOO U. S. 257, 25 L. Ed. 648. See "Criminal Law," Dec. Dig. (Key No.) § 89; Cent. Dig. § J28. 23 In re Gross (C. C.) 78 Fed. 107. See "Courts," Dec. Dig. (Key No.) % 257; Cent. Dig. §§ 793, 794- 2* Wahl V. Franz, 100 Fed. 680, 40 C. C. A. 638, 49 L. R. A. 62; Clark v. Guy (C. C.) 114 Fed. 783 ; Thiel Detective Service Co. v. McClure (C. C.) 130 Fed. 148 FEDERAL JURISDICTION. (Ch. 7 Legislation of Congress. Although the federal judicial power is defined and granted by the constitution, its provision, in this respect, was not self-executing. That is, the judicial power could not come into practical operation until courts were created by congress and their jurisdiction regulated. The supreme court is a constitutional court, but it was necessary for con- gress to make provision for its organization and fix the number of judges. All the rest of the judicial power of the United States re- mained to be dealt with by congress. And in creating the courts, con- gress was under no obligation to occupy the entire field of judicial power marked out by the constitution. In fact, much of the judicial power which might be made exclusive in the federal courts still re- mains concurrent in the state courts. The first act of congress directed to the organization of the federal system of courts and the regulation of their jurisdiction was the judiciary act of 1789. One of its authors was Oliver Ellsworth, afterwards chief justice of the United States. It is regarded as a contemporaneous exposition of the nature and ex- tent of the federal judicial power. And though it has often been amended^ ° or changed in details, yet the framework of the great sys- tem which it established, and all its essential particulars, remain the same. It organized the supreme court, with a chief justice and five associate justices, which number has since been increased to eight. It provided for three judicial circuits and thirteen judicial districts, with courts in each. And it apportioned the federal judicial power* among these courts, not, however, filling up the full measure granted by the constitution. For instance, although a case involved a federal question, yet it could not, until 1875, be brought in a federal court unless there was also a diversity of citizenship between the parties. Jurisdiction of Federal Courts. As the law now stands, the federal courts have original and exclu- sive jurisdiction of cases between states or between the United States and a state; cases against ambassadors and consuls; crimes against 55. See Spencer v. Watldns, 169 Fed. 379, 94 O. C. A. 659; Underground Electrical Rys. Co. v. Owsley (O. C.) 169 Fed. 671. See "Courts," Dec. Dig. {Key No.) § 260; Cent. Dig. § 793. 2 5 The judiciary act of 1887-88 (U. S. Comp. St. 1901, p. 507) was intended to contract the jurisdiction of the federal courts, and in interpreting it all doubts must be resolyed against their jurisdiction. St. Louis, I. M. & S. R. Co. V. Davis (C. C.) 132 Fed. 629. See "Courts," Dec. Dig. (Key No.) § 256; Cent. Dig. § 792. § 89) JUDICIAL POWER OF THE UNITED STATES. 149 the United States ; ^' cases under the national bankrupt law ; cases involving patents and copyrights; suits for penalties and forfeitures under federal laws; all civil causes of admiralty and maritime juris- diction, saving to suitors in all cases the right to a common-law remedy where the common law is competent to give it; and seizures under the laws of the United States, on land or waters not within the ad- miralty and maritime jurisdiction.^' They have original jurisdiction of cases arising under the constitution or laws of the United States or treaties, and also those involving controversies between citizens of diflfeient states, provided the amount in controversy exceeds $2,000. If the sum in dispute falls below that amount, the state courts have exclusive jurisdiction,^^ but the decision of the highest state court is liable to be reviewed by the United States supreme court on error, if it is in denial of a right claimed under the constitution or an act of congress. If the amount exceeds $2,000, the federal courts have con- current jurisdiction with the state courts in both these classes of cases. But if the action is originally brought in the state court, it is liable, .under certain conditions to be mentioned hereafter, to be removed into the federal court for trial and determination. The federal judicial power being limited, the federal courts are to be regarded as courts of limited (though not inferior) jurisdiction. The consent of parties cannot confer jurisdiction on the federal courts where they do not possess it under the constitution and laws.^* Moreover their jurisdiction is territorially limited, a federal court, for example, having no authority to order the foreclosure sale of land in another state; ^° and in certain cases a defendant cannot be sued in a federal court in any other district than that whereof he is an inhabit- 2 6 Congress may constitutionally provide that the jurisdiction of prosecu- tions brought for violations of the laws of the United States shall be exclu- sive in the federal courts. People v. Fonda, 62 Mich. 401, 29 N. W. 26. See "Criminal Law," Dec. Dig. (Key No.) § 84; Cent. Dig. §§ 115-121,. 27 Rev. St. U. S. § 711 (U. S. Comp. St. 1901, p. 577). 2 8 Holt V. Indiana Mfg. Co., 176 U. S. 68, 20 Sup. Ct. 272, 44 L. Ed. 374 ; She- waiter V. Lexington (C. C.) 143 Fed. 161. But in suits brought by direction of any officer of the United States, it is sufficient to confer jurisdiction if the amount in controversy exceeds $500. Rankin v. Herod (C. C.) 140 Fed. 661. See "Courts," Dec. Dig. (Key No.) §§ 326-328; Cent. Dig. §§ 888-896. 2 9 Iowa Lillooet Gold MIn. Co. v. Bliss (C. C.) 144 Fed. 446. See "Courts," Dec. Dig. (Key No.) § 23; Cent. Dig. §§ 75-81. 30 Jones v. Byrne (C. C.) 149 Fed. 457. See "Courts," Dec. Dig. (Key No.} § 266; Cent. Dig. §§ 806-808. 150 FEDERAL JUEISDICTION. (Ch. 7 ant." But a federal court, having lawful jurisdiction of a given case and of the parties, has jurisdiction to determine the entire contro- versy and all the questions involved in the case.^^ Determination of Jurisdiction. In a suit in a federal court, the question of jurisdiction is funda- mental, and may be raised at any time, in any mode, and at every step in the proceedings, either by the court of its own motion or by the parties, and such investigation may be instituted as may be necessary to establish or defeat the court's jurisdiction.^* Equity Jurisdiction. The federal courts have general jurisdiction in equity (other juris- dictional requisites being present) in all causes cognizable in equity un- der the ancient practice of the court of chancery or made so by act of congress or a statute of the state wherein they sit,** except where a state law authorizes the equity courts to take cognizance of an action properly triable at law, in which case the federal courts, preserving strictly the distinction between law and equity, will remit the party to his legal action.* ° It was provided in the judiciary act of 1789, and is still the law, that "suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had at law." ^° But this is understood to 81 Barrow S. S. Co. v. Kane, 170 U. S. 100, 18 Sup. Ct. 526, 42 L. Ed. 964. See "Courts)" Deo. Dig. (Key No.) § 270; Cent. Dig. § 810. 8 2 Howe & Davidson Co. v. Haugan (C. C.) 140 Fed. 182; Jew Ho v. Wil- liamson (C. C.) 103 Fed. 10. See "Courts," Deo. Dig. (Key No.) § 263; Cent. Dig. §§ 799, 800. 3 3 Front V. Starr, 188 U. S. 537, 28 Sup. Ct. 398, 47 L. Ed. 584; Briggs v. Traders' Co. (C. C.) 145 Fed. 254 ; Kreider v. Cole, 149 Fed. 647, 79 C. C. A. 339 ; Central Grain & Stock Exch. v. Board of Trade, 125 Fed. 463, 60 C. C. A. 299 ; Myers v. Hettinger, 94 Fed. 370, 37 C. C. A. 369 ; Cross v. Evans, 86 Fed. 1, 29 C. C. A. 523. See "Courts," Dec. Dig. (Key No.) § 280; Cent. Dig. §§ 816-818. 84Carrau v. O'Calligan, 125 Fed. 657, 60 0. C. A. 347; People's Sav. Bank V. Layman (C. C.) 134 Fed. 635; Anthony v. Burrow (C. C.) 129 Fed. 783; Conklin v. United States Shipbuilding Co. (C. C.) 123 Fed. 913. See "Courts," Deo. Dig. (Key No.) § 262; Cent. Dig. §§ 797, 79S. 3 5 Scott V. Neely, 140 U. S. 106, 11 Sup. Ct. 712, 35 L. Ed. 358; Whitehead V. Shattuck, 138 U. S. 146, 11 Sup. Ct. 276, 34 L. Ed. 873 ; Davidson v. Calkins (C. C.) 92 Fed. 230. See "Courts," Dec. Dig. (Key No.) § 263; Cent. Dig. §§ 797, 798. 38 Rev. St. U. S. § 723 (U. S. Comp. St. 1901, p. 583). And see Brun v. Mann, 151 Fed. 145, 80 C. C. A. 513 ; Jones v. Mutual Fidelity Co. (C. C.) 123 Fed. 506. See "Courts," Dec. Dig. (Key No.) § 262; Cent. Dig. §§ 797, 79S. § 89) JUDICIAL POWER OF THE UNITKD STATES. 151 mean that such a remedy at law must have existed in 1789 or must have been subsequently given or created by act of congress." And further, the remedy at law must be equally efficient with that in equity and, must be enforceable in the same court and by an action which the complainant may bring ; it is not sufficient to deprive the federal courts of jurisdiction that there may be a legal remedy which is maintainable only in a state court or only by way of defense to an action which the defendant may bring if he chooses.*^ Ancillary and Incidental Jurisdiction. A federal court which has lawfully acquired jurisdiction of an action has jurisdiction of the entire controversy and can judge and deter- mine all matters necessary to give the parties complete relief, and hence may entertain ancillary and cross bills without regard to the citi- zenship of the parties thereto.^" And a suit in equity dependent upon a former suit, in which the court had jurisdiction, may be maintained without regard to diversity of citizenship or the existence of a federal question, when its object is to aid or enjoin the original suit, to con- strue, restrain, modify, avoid, or enforce the judgment or decree therein or to enforce liens or claims to property in the custody of the court in the original suit,*" though not to adjudicate the claims of those who were not parties to or in privity with the original suit, excepting the case of those who claim an interest in property in the court's custody.*^ 37 National Surety Co. v. State Bank, 120 Fed. 593, 56 O. C. A. 657, 61 L. E. A. 394 ; Alger v. Anderson (C. C.) 92 Fed. 696 ; Hultberg v. Anderson (C. C.) 170 Fed. 657. See "Courts," Dec. Dig. (Key No.) § 262; Cent. Dig. §§ 797, ^98. 3s United States Life Ins. Co. v. Cable, 98 Fed. 761, 39 C. C. A. 264; Poke- gama Sugar Pine Lumber Co. v. Klamath River Lumber & Imp. Co. (C. C.) 96 Fed. 34 ; Coler v. Board of Com'rs of Stanly County (C. C.) 89 Fed. 257. See "Courts," Dec. Dig. (Key No.) § S62; Cent. Dig. §§ 7.97, 798. 3» Ulman v. laeger (C. O.) 155 Fed. 1011 ; Ames Realty Co. v. Big Indian Min. Co. (C. C.) 146 Fed. 166 ; Everett v. Independent School Dist. (C. C.) 102 Fed. 529 ; Kuhn v. Morrison (C. C.) 75 Fed. 81 ; ' Hobbs Mfg. Co. v. Gooding 73 Fed. 716; Potter v. Selwyn (C. C.) 170 Fed. 223. But note that this rule is restricted to cases in which the proceedings were first begun In the state court. If the federal court first acquired jurisdiction of the proceedings, it may protect itself against being interfered with, and may, if necessary, enjoin adverse proceedings in a state court. Yick Wo v. Crowley (C. C.) 26 Fed. 207. See "Courts," Dec. Dig. (Key No.) § 508; Cent. Dig. §§ H18-US0. 164 Taylor v. Carryl, 20 How. 583, 15 L. Ed. 1028; Hagan v. Lucas, 10 Pet. 400, 9 L. Ed. 470 ; Smith v. Bauer, 9 Colo. 380, 12 Pac. 397 ; Williams v. Chap- man, 60 Iowa, 57, 14 N. W. 89 ; Alabama Gold Life Ins. Co. v. Girardy (C. C.) 9 Fed. 142 ; Walker v. Flint (C. C.) 7 Fed. 435 ; Domestic & Foreign Missionary Soc. V. Hlnman (C. C.) 13 Fed. 161 ; Beckett v. SherM Harford County (C. C.) 21 Fed. 32 ; Patterson v. Mater (C. C.) 26 Fed. 31 ; Summers v. White, 17 C. C. A. 631, 71 Fed. 106; Frank v. Leopold & Feron Co. (O. C.) 169 Fed. 922. See "Cova-ts," Dec. Dig. (Key No.) §§ 497, 498; Cent. Dig. §§ 1386-1390. 165 Thompson v. Van Vechten, 5 Duer (N. Y.) 618. See "Courts," Dec. Dig. (Key No.) §§ 497, 507; Cent. Dig. §§ 1386-1390, I4II. J 82 FEDERAL JURISDICTION. (Ch. 7 tain a bill asking to have the mortgage declared to be for the benefit of all the mortgagor's creditors.^*" And so, an estate which is in course of administration in a state probate court is in gremio legis, and a federal court cannot take charge of the administration, and determine and award the distributive shares of the heirs, at least as regards citizens of the same state."^ A receiver appointed by a court of equity is an officer of that court, and the receiver's possession of the property of the trust is the possession of the court. No private suitor may interfere with that possession, or sue the receiver, without leave of the court which appointed him. By an extension of this rule, the state and federal courts have determined that neither has any pow- er to appoint a receiver of property which is already in the possession of a receiver previously appointed by the other court,^"'* nor in any wise interfere with the possession of such receiver.^^" If a receiver appointed by a state court, acting under orders of that court, has un- lawfully taken possession of property which he is not entitled to hold, because it is not included in the trust, an application should be made to the state court to correct its order; but if it will not, an action of tres- pass on the case may be brought in the federal court, provided it has jurisdiction of the parties and subject-matter.^'" Again, the relation between the state and federal courts imposes a restriction upon the equity powers of either in setting off a judgment of the one against a judgment of the other. Hence when a federal court of equity is asked to set aside the satisfaction of a state judgment at law, or to determine equitable defenses to that judgment, as preliminary to a decree of set-off against a judgment of the federal court itself, the 160 Keys Mfg. Co. v. Kimpel (C. C.) 22 Fed. 466. See "Courts," Deo. Dig. (Key No.) § 504; Gent. Dig. §§ 1399-U03. le^Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906, 37 L. Ed. 867; Eddy V. Eddy, 168 Fed. 590, 93 C. C. A. 586. But the mere fact that an adminis- trator of a decedent's estate has been appointed by a state court having juris- diction will not prevent the federal court from entertaining jurisdiction of actions brought against him as administrator. Hook v. Payne, 14 Wall. 252, 20 L. Ed. 887. Bee "Courts," Dec. Dig. (Key No.) § 505; Cent. Dig. § HIO. 16 8 Shields v. Coleman, 157 U. .S. 168, 15 Sup. Ct. 570, 39 L. Ed. 660. See "Courts," Dec. Dig. (Key No.) §§ 500, 501; Cent. Dig. §§ lJt07-U09. 16 9 Wiswall V. Sampson, 14 How. 52, 14 L. Ed. 322; Hamilton v. Chouteau (0. C.) 6 Fed. 339 ; Andrews v. Smith (C. C.) 5 Fed. 833 ; Palmer v. Texas, 212 U. S. 118, 29 Sup. Ct. 230, 53 L. Ed. 435. See "Courts," Dec. Dig. (Key No.) §§ 500, 501; Cent. Dig. §§ U01-U09- 170 Curran v. Craig (0. C.) 22 Fed. 101. See "Courts," Dec. Dig. (Key No.) §§ 500, 501; Cent. Dig. §§ U07-U09. §§ 94-97) POWERS AND PEOCEDURE OF FEDERAL COURTS. 183 parties will be sent to a state court of competent jurisdiction to settle their controversy, and in the meantime the federal judgment will be stayed. ^^^ No Common Law of the United States. It is often said that there is no common law of the United States ; that the national government being one of limited and specified pow- ers, its entire legal system must be found in the constitution, treaties, and acts of congress ; that it can have no unwritten or customary law. This is true to a certain extent. It is indisputable that the govern- ment of the United States has no inherent comrnon-law prerogatives. It possesses only such as are conferred upon it by the constitution, and therefore has no power to interfere in the personal or social re- lations of citizens by virtue of authority deducible from the general nature of sovereignty.^" Nor is there any common law of the United States, as such, which can be appealed to as conferring jurisdiction upon its courts; they possess no other jurisdiction than that concur- rently conferred by the constitution and acts of congress.^'* Again, the general government has no power to punish any act as a crime unless it is made such by the constitution or by a statute of congress ; there can be no common-law crimes against the United States. ^^* And not only this, but the federal criminal jurisprudence is entirely desti- tute of any substratum of a common law of crimes, upon which to draw for supplying elements of the offense. For this the courts" look only to the statnte. They may resort to the common law for the defi- nition of crimes created by statute, or for the explanation of terms 171 Lauderdale County v. Foster (C. C.) 23 Fed. 516. See "Courts," Dec. Dig. (Key No.) § JM; Cent. Dig. § 1361. 172 In re Barry (C. C.) 42 Fed. 113. See "United States," Dec. Dig. {Key No.) § 5; Cent. Dig. § 4- 17 8 Pennsylvania v. Wlieeling & B. Bridge C!o., 13 How. 518, 563; In re Barry, 42 Fed. 113 ; 1 Kent, Comm. 331-341 ; 1 Whart. Cr. Law, §§ 253-256. But in those matters not subject to judicial jurisdiction, there is a complete system of executive national common law, of universal application within the limits of the United States, growing out of the exercise of their executive powers by the President and chief officers of the executive department^, and consisting of usages and customs, precedents, quasi-judicial decisions, and constructions upon the statutes, treaties, and the constitution. . 3 Lawr. Compt. Dee. xxil ; TJ. S. v. Macdaniel, 7 Pet. 1, 14, 8 L. Ed. 587. See "Courts," Dec. Dig. (Key No.) § 235; Cent. Dig. §§ 792, 804, 805. 174 U. S. V. Eaton, 144 U. S. 677, 12 Sup. Ct. 764, 36 L. Ed. 591; U. S. v. Hudson, 7 Cranch, 32, 3 L. Ed. 259. See "Criminal Lcm," Dec. Dig. (Key No.) § 9; Cent. Dig. §§ 8, 9. 184 FEDERAL JOEISDICTION. (Ch. 7 used in the constitution or acts of congress, but never for any ingre- dient of the oflfense.^'° So, also, the common-law rules relating to common carriers have no application to interstate commerce, even when the contract of carriage is made in a state where those rules prevail; for such commerce is governed solely by the laws of the United States, and the United States has never adopted the common law.^'° But "there is one clear exception to the statement that there is no national common law. The interpretation of the constitution of the United States is necessarily influenced by the fact that its pro- visions are framed in the language of the English common law, and are to be read in the light of its history. The code of constitutional and statutory construction which, therefore, is gradually formed by the judgments of this court, in the application of the constitution and the laws and treaties made in pursuance thereof, has for its basis so much of the common law as may be implied in the subject, and con- stitutes a common law resting on national authority." ^'^ What Law Administered. An act of congress provides that "the jurisdiction in civil and crim- inal matters conferred on the district and circuit courts for the pro- tection of all persons in the United States in their civil rights and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suit- able remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the state wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the constitution and 17 U. S. V. De Groat (D. C.) 30 Fed. 764. There are numerous instances of the necessity of resorting to the common law in search of definitions, In mat- ters connected with the criminal law or criminal administration, in the eon- struction of the constitution. Thus, that instrument speaks of "trial by jury," "infamous crime," "jeopardy," "due process of law," etc. Upon referring to the common law, we learn that a "jury" means a jury of 12 men drawn from the vicinage, and so with regard to the others. See "Criminal Law," Dec. Dig. (Key No.) § 11; Gent. Dig. §§ 10-12. 176 Swift V. Philadelphia & R. R. Co. (C. C.) 58 Fed. 858. 8ee "Carriers," Dec. Dig. (Key No.) § S3; Cent. Dig. § 59. 177 Smith V. Alabama, 124 U. S. 465, 8 Sup. Ct. 564, 31 -L. Ed. 508. See "Stat- utes," Dec. Dig. (Key No.) § S22; Cent. Dig. § SOI. §§ 94^97) POWERS AND PROCEDURE OF FEDERAL COURTS. 185 laws of the United States, shall be extended to and govern such courts in the trial arid disposition of the cause." "^ And it is a general rule that where the case is not governed by any federal statute or treaty/'' the federal courts will administer the law of the state wherein they sit, and will take notice of the common law of the state, and its statutes and customs, and apply them as the courts of the state would apply them to the same circumstances.^*" And though the jurisdiction of the federal courts, as fixed by the constitution and acts of congress, can neither be enlarged or abridged by the legislative action of the states, yet any right arising under, or liability imposed by, either the" common law or a statute of a state may, where the action is transitory, be asserted and enforced in any circuit court of the United States having jurisdiction of the subject- matter and the parties. ^*^ But the federal courts have a general sys- tem of equity jurisprudence which is administered uniformly through- out the United States, without any variations or exceptions resulting from local laws.^** Following State Decisions. It was provided in the original judiciary act of 1789 that "the laws of the several states, except where the constitution, treaties, or stat- utes of the United States otherwise require or provide, shall be regard- ed as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." **^ And "since the ordi- 17 8 Rer. St. U. S. § 722 (U. S. Comp. St. 1901, p. 582). 17 9 A ease arising under a federal statute, such as tlie bankruptcy law, is to- be decided independently by the federal courts. In re Plotke, 104 Fed. 964, 44 0. C. A. 282. See "Courts," Dec. Dig. (Key No.) § 361; Cent. Dig. § 95i. 180 Cheatham v. Evans, 160 Fed. 802, 87 CO. A. 576; Denver v. Porter,. 126 Fed. 288, 61 C. C. A. 168; McClain v. Provident Sav. Life Assur. Soc.,. 110 Fed. 80, 49 0. O. A. 31 ; Thompson v. McOonnell, 107 Fed. 33, 46 C. C. A. 124. See "Courts," Dec. Dig. (Key No.) § 366; Cent. Dig. §§ 954-968. 181 Dennick v. Central R. Co., 103 U. S. 11, 26 L. Ed. 4.39; Piatt v. Leeocq, 158 Fed. 723, 85 O. O. A. 621, 15 L. R. A. (N. S.) 558 ; Harrison v. Remington Paper Co., 140 Fed. 385, 72 C. C. A. 405, 3 L. R. A. (N. S.) 954 ; Malloy v. Amer- ican Hide & Leather Co. (0. C.) 148 Fed. 482 ; Anthony v. Burrow (C. O.) 129- Fed. 783; Jones v. Mutual Fidelity Co. (C. C.) 123 Fed. 506; D. S. v. Leslie (C. C.) 167 Fed. 670. See "Courts," Dec. Dig. (Key No.) § 260; Cent. Dig. § 7fl2. 182 First Nat Bank v. Ewing, 103 Fed. 168, 43 C. C. A. 150; Alger v. Ander- son (C. C.) 92 Fed. 696. See "Courts," Deo. Dig. (Key No.) § S35; Cent. Dig, §i 902-907%. 18 8 Rev. St. U. S. i 721 (U. S. Comp. St. 1901, p. 581). Note that this pro- 186 FEDERAL JURISDICTION. (Ch. 7 nary administration of law is carried on by the state courts, it neces- sarily happens that, by the course of their' decisions, certain rules are established which become rules of property and action in the state, and have all the effect of law. Such established rules are always re- garded by the federal courts, no less than by the state courts them- selves, as authoritative declarations of what the law is." ^** Thus, when the question concerns the construction or effect of any provision of the constitution of the state or of a state statute, and it has been authoritatively decided by the court of last resort in the state, the federal courts will consider themselves bound to adopt and apply the doctrine so laid down.^^° So of a decision of the state courts that a given statute is or is not repugnant to the state constitution.^*" But if the construction of the state constitution or statute, as settled by its vision only applies to "trials at common law." Where the question is one of general equity jurisprudence, the national courts, having an equity sys- tem of their own, are not bound to follow the decisions of the state courts. Neve^ v. Scott, 13 How. 268, 14 L. Ed. 140. Neither has this statute any ap- plication to the trial of criminal offenses against the United States. Unit- ed States V. Central Vermont Ey. (C. C.) 157 Fed. 291. Nor to a question of international law or comity. Evey v. Mexican Cent. Ry. Co., 81 Fed. 294, 26 €. C. A. 407, 38 t,. R. A. 887. She "Courts," Dec. Dig. (Key No.) §§ SSS-SJ,!; Vent. Dig. §§ 899-910. 184 Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. 10, 27 L. Ed. 359; Town- send V. Todd, 91 U. S. 452, 23 L. Ed. 413 ; Atlantic & G. R. Co. v. Georgia, «8 U. S. 359, 25 L. Ed. 185 ; Sims' Lessee v. Irvine, 3 Dall. 425, 1 L. Ed. 665 ; Walker v. Marks, 17 Wall. 648, 21 L. Ed. 744. See "Com-ts," Dec. Dig. (Key No.) § 367; Cent. Dig. §§ 958, 959. 185 Gatewood v. North Carolina, 203 U. S. 531, 27 Sup. Ct. 167, 51 L. Ed. 305; Wicomico County v. Bancroft, 203 U. S. 112, 27 Sup. Ct. 21, 51 L. Ed. 112; Yazoo & M. V. R. Co. v. Adams, 181 U. S. 580, 21 Sup. Ct. 729, 45 L. Ed. 1011; TuUis v. Lake Erie & W. R. Co., 175 U. S. 348, 20 Sup. Ct. 136, 44 L. Ed. 192 ; Bauserman v. Blunt, 147 U. S. 647, 13 Sup. Ct. 466, 37 L. Ed. 316; Cornell University v. Fiske, 136 U. S. 152, 10 Sup. Ct. 775, 34 L. Ed. 427 ; McElvaine v. Brush, 142 U. S. 155, 12 Sup. Ct. 156, 35 L. Ed. 971 ; South Branch Lumber Co. v. Ott, 142 U. S. 622, 12 Sup. Ct. 318, 35 L. Ed. 1136 ; Lef- flngwell V. Warren, 2 Black, 599, 17 L. Ed. 261 ; Converse v. Mears (C. C.) 162 Fed. 767 ; Hager v. American Nat. Bank, 159 Fed. 396, 86 C. C. A. 334 ; Ly- man V. Hllliard, 154 Fed. 339, 83 C. C. A. 117 ; Harrison v. Remington Paper Co., 140 Fed. 385, 72 C. C. A. 405, 3 L. R. A. (N. S.) 954 ; National Bank of Oxford V. Whitman (C. C.) 76 Fed. 697. See "Courts," Dec. Dig. (Key No.) i 366; Gent. Dig. §§ 95i-95y, 960-968. 18 6 Montana v. Rice, 204 U. S. 291, 27 Sup. Ct. 281, 51 L. Ed. 490; Ras- mussen v. Idaho, 181 U. S. 198, 21 Sup. Ct. 594, 45 L. Ed. 820; Fallbrook Irr. Dist. v. Briidley, 164 U. S. 112, 17 Sup. Ct. 56, 41 L. Ed. 369. See ''Courts," Dec. Dig. (Key No.) i 366; Cent. Dig. § 957. §§ 94-97) POWERS AND PKOCEDURE OF FEDERAL COURTS. 187 courts, conflicts with or impairs the efficacy of some provision of the constitution or a law of the United States, the federal courts will not be bound to follow it.^^' Thus if rights have vested under a construc- tion of a state statute previously placed upon it by' the state courts, the federal courts will not be bound to follow a subsequent and differ- ent decision of the state courts, when the effect would be to divest such rights or impair the obligation of contracts.^*' For reasons similar to the foregoing, the courts of the United States will follow the decisions of the state courts on questions of real-property law, especially those involving the nature or validity of titles.^^" And the same thing is true of questions of purely local law.^"" The decisions which are thus binding on the federal courts are those rendered by the highest judicial tribunal of the state, having final jurisdiction of the question involved,^"^ and rendered on the precise question at issue. ^°^ Opinions of the lower courts or of intermediate appellate courts, though entitled to respectful consideration, are not 187 Stutsman County v. Wallace, 142 U. S. 293, 12 Sup. Ct. 227, 35 L. Ed. 1018; Olcott V. Supervisors of Fond du Lac County, 16 Wall. 678, 21 L. Ed. 382; Gelpcke v. Dubuque, 1 Wall. 175, 17 L. Ed. 520; Morenei Copper Co. V. Freer (C. C.) 127 Fed. 199; Central Trust Co. v. Citizens' St. Ry. Co. of Indianapolis (C. C.) 82 Fed. 1. See "Courts," Deo. Dig. (Key ^"o.) §§ 366, 369; Cent. Dig. §§ 954-957, 960-968. 188 Anderson v. Santa Anna Tp., 116 U. S. 356, 6 Sup. Ct. 413, 29 L. Ed. 633; Fleischmann Co. v. Murray (C. C.) 161 Fed. 162; Forest Products Co. v. Russell (C. O.) 161 Fed. 1004; Board of Com'rs of Franklin County v. Gardiner Sav. Inst, 119 Fed. 36, 55 C. 0. A. 614. See "Courts," Dec. Dig. iKey -No.) §§ 36H, 369; Cent. Dig. § 951. 18 9 Abraham v. Casey, 179 U. S. 210, 21 Sup. Ct. 88, 45 L. Ed. 156; War- burton V. White, 176 U. S. 484, 20 Sup. Ct. 404, 44 L. Ed. 555; St. Louis v. Rutz, 138 U. S. 226, 11 Sup. Ct. 337 ; 34 L. Ed. 941 ; McKeen v. Delancy, 5 'Cranch, 22, 3 L. Ed. 25; Gillespie v. Pocahontas Coal Co., 163 Fed. 992, 91 C. C. A. 494 ; Paine v. Willson, 146 Fed. 488, 77 C. C. A. 44 ; Hoge v. Magnes, 85 Fed. 355, 29 C. C. A. 564. See "Courts," Deo. Dig. {Key No.) § 367; Cent. Dig. § 959. 100 Ohio V. Frank, 103 U. S. 697, 26 L. Ed. 531; Percy Summer Club v. Astle, 163 Fed. 1, 90 C. C. A. 527. See "Courts," Dec. Dig. (Key No.) § 365; •Cent. Dig. § 955. 181 Federal Lead Co. v. Swyers, 161 Fed. 687, 88 O. C. A. 547; Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 27 Colo. 1, 59 Pae. 607, 50 L. R. A. 209, ■83 Am. St. Rep. 17. See "Courts," Dec. Dig. (Key No.) §§ 365, 366; Cent. Dig. §§ 950-971. 192 Southern R. Co. v. Simpson, 131 Fed. 705, 65 C. C. A. 563. See "Courts," Dec. Dig. (Key No.) §§ 365, 366; Cent. Dig. §§ 950-971. 188 FEDERAL JURISDICTION. (Ch. 7 conclusive authorities,^ °' and no authoritative force is to be accorded to mere dicta/"* nor to an isolated single decision of the state supreme court made many years before.^'^ In case of changes of opinion in the state courts, the federal courts will follow the latest settled adju- dications,^"* but they cannot be expected to follow oscillations in the process of settlement, and will not feel bound by the decisions unless it is clear that the supreme court of the state regards the question as decided. ^°' But the federal courts sitting in any state have equal and co-ordinate jurisdiction with the state courts in determining questions of general jurisprudence and particularly of general commercial law, and are not bound in such matters to follow the state decisions. ^°' This rule ap- plies, for example, to questions of the right of a carrier to limit his common-law liability;^'* questions as to the rights and liabilities of 193 Federal Lead Co. v. Swyers, 161 Fed. 687, 88 C. C. A. 547; Anglo- American Land, etc., Co. v. Lombard, 132 Fed. 721, 68 C. C. A. 89 ; Stryker V. Board of Oom'rs of Grand County, 77 Fed. 567, 23 O. C. A. 286 ; Continental Securities Co. v. Interborough Rapid Transit Co. (C. C.) 165 Fed. 945. See "Courts," Deo. Dig. (Key No.) §§ 365, 366; Cent. Dig. §§ 950-911. 10* In re Sullivan, 148 Fed. 815, 78 C. C. A. 505; Matz v. Chicago & A. R. Co. (O. C.) 85 Fed. 180. See "Courts," Deo. Dig. (Key Wo.) §§ 365, 366; Gent, Dig. §§ 950-971. 186 Belfast Sav. Bank v. Stowe, 92 Fed. 100, 34 C. C. A. 229; Stowe v. Belfast Sav. Bank (C. C.) 92 Fed. 90. See "Courts," Dec. Dig. (Key No.) §§^ 365, 366; Cent. Dig. §§ 950-971. io« Wade v. Travis County, 174 U. S. 499, 19 Sup. Ct. 715, 43 L. Ed. 1060; Leffingwell v. Warren, 2 Black, 599, 17 L. Ed. 261. See "Courts," Deo. Dig, (Key No.) §§ 368; Cent. Dig. § 951. 197 Myrlck v. Heard (C. C.) 31 Fed. 241. See "Courts," Deo. Dig. (Kev No.) § 368; Cent. Dig. § 951. 18 8 Clark V. Bever, 139 U. S. 96, 11 Sup. Ct. 468, 35 L. Ed. 88; Thompson V. Perrine, 103 U. S. 806, 26 L. Ed. 612; Roberts v. Bolles, 101 U. S. 119, 25 L. Ed. 880; Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865; Levner Engineering Works V. Kempner (C. C.) 163 Fed. 605; Converse v. Mears (C. C.) 162 Fed. 767 ; In re Hopper-Morgan Co. (D. C.) 154 Fed. 249 ; Malloy v. American Hide Co. (C. C.) 148 Fed. 482; Phoenix Bridge Co. v. Oastleberry, 131 Fed. 175, 65 C. O. A. 481; Independent School Dist. of Sioux City, Iowa, v. Rew, 111 Fed. 1, 49 O. C. A. 198 ; Union Bank of Richmond, Va., v. Board of Com'rs. of Oxford, N. C, 90 Fed. 7 ; Willis v. Board of Com'rs of Wyandotte Coun- ty, 86 Fed. 872, 30 C. C. A. 445; Pennsylvania R. Co. v. Hummel, 167 Fed. 89, 92 C. O. A. 541. See "Cowts," Dec. Dig. (Key No.) § S~2; Cent. Dig. §§ 977-979. 199 New York Gent. B. Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627. 8e» "Cowts" Dec. Dig. {Key No.) § 372; Cent. Dig. § 977. §§ 94r-97) POWERS AND PROCEDURE OF FEDERAL COURTS. 189 parties to commercial paper; ^°'' questions arising upon the construc- tion and effect of particular contracts; ^°^ and questions concerning the relation of master and servant and the liability for injuries caused by fellow servants.^"^ So also of the question of the measure of dam- ages recoverable in an action of tort, when not governed by the stat- utes of the state.^"* Such also, and necessarily, is the rule when the question concerns the construction of the federal constitution or a treaty or an act of congress, or the determination of a federal ques- tion.'"* Practice. An act of congress provides that "the practice, pleadings, and forms and modes of procedure in civil causes, other than admiralty and equity causes, in the circuit and district courts, shall conform as near as may be to the practice, pleadings, and forms and modes of proce- dure existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding." ""^ The effect of this pro- 200 Van Vleet v. Sledge (C. C.) 45 Fed. 743. See "Courts," Dec. Dig. (Key No.) §§ 372, 376; Cent. Dig. §§ 979, 984. 201 Johnson v. Charles D. Norton Co., 159 Fed. 361, 86 C. O. A. 861; Keene Five Cent Sav. Bank v. Reld, 123 Fed. 221, 59 C. C. A. 225 ; Gilbert v. Amer- ican Surety Co., 121 Fed. 499, 57 C. C. A. 619, 61 L. E. A. 253 ; City of Ot- tumwa, Iowa, v. City Water Supply Co., 119 Fed. 315, 56 O. O. A. 219, 59 L. R. A. 604 ; Bancroft v. Hambly, 94 Fed. 975, 36 C. C. A. 595. See "Courts," Dec. Dig. (Key No.) § 372; Cent. Dig. §§ 977-979. 202 Salmons v. Norfolk & "W. R. Co. (O. C.) 162 Fed. 722; Kinnear Mfg. Co. V. Carlisle, 152 Fed. 933, 82 C. C. A. 81; Pennsylvania Co. v. Fishack, 123 Fed. 465, 59 C. C. A. 269; McPeck v. Central Vermont R. Co., 79 Fed. 590, 25 C. C. A. 110; Chandler v. St. Louis & S. F. R. Co., 127 Mo. App. 34, 106 S. W. 553. And see Snare & Triest Co. v. Friedman, 169 Fed. 1, 94 C. C. A. 369. See "Courts," Dec. Dig. (Key No.) § 372; Cent. Dig. § 977. 20 3Woldson V. Larson, 164 Fed. 548, 90 C. C. A. 422. See "Courts," Dec. Dig. (Key No.) § 372; Cent. Dig. § 977. 20 4 Louisville & N. R. Co. v. Palmes, 109 U. S. 244, 3 Sup. Ot. 193, 27 L. Ed. 922 ; Sunset Telephone & Telegraph Co. v. Pomona (C. C.) 164 Fed. 561 ; Johnson v. Crawford & Tothers (C. C.) 154 Fed. 761; Calhoun Gold Min. Co. V. Ajax Gold Min. Co., 182 U. S. 499, 21 Sup. Ct. 885, 45 L. Ed. 1200. See "Courts," Dec. Dig. (Key No.) §§ 364-370; Cent. Dig. §§ 950-971. 205 Rev. St. U. S. § 914 (U. S. Comp. St. 1901, p. 684). The statute authoriz- ing the federal circuit courts to make rules and orders regulating their prac- tice (Rev. St. U. S. § 918 [U. S. Comp. St. 1901, p. 685]) should be construed in connection with the foregoing provision. Importers' & Traders' Nat. Bank V. Lyons (C. C.) 134 Fed. 510. This statute applies not only to cases original- ly begun in a federal court but also to those removed into it from a state 190 FEDERAL JURISDICTION. (Ch. 7 vision is that the federal courts conform their practice, in all cases at common law, to that of the state in which they sit.. If the state has adopted a code of procedure, proceedings in the federal courts, in ac- tions at law, are governed by the code. If the state adheres to the common-law pleading and practice, the federal courts will do the same. But this statute does not pertain to nor affect the jurisdiction of the federal courts or the mode of obtaining jurisdiction of the person; ""^ nor will it be held applicable in respect to any matter upon which congress itself has prescribed a definite rule,^"' nor be followed when conformity to the state practice would tend to defeat justice in a par- ticular case or unwisely incumber the administration of justice in the federal courts.^"* Neither does it apply to proceedings in the ad- miralty courts,^"' nor to the trial of criminal offenses,^^" nor to appel- late jurisdiction and procedure. ^^^ And proceedings in equity are not affected by this rule. In regard to the jurisdiction in equity, the acts court. Broadmoor Land Co. v. Curr, 142 Fed. 421, 73 C. 0. A. 537. Since the federal statutes do not expressly Indicate the practice to be followed on scire facias on a forfeited recognizance or bail .bond, resort must be had to the procedure which obtained at common law. Kirk v. United States (C. C.) 131 Fed. 331. See "Courts," Dec. Dig. (Key No.) §§ 331-334; Cent. Dig. §§ 899-910. 200 Wells V. Olark (C. C.) 136 Fed. 462, affirmed Olark v. Wells, 203 U. S. 164, 27 Sup. Ct. 43, 51 L. Ed. 138. See "Courts," Dec. Dig. (Key No.) § 338; Cent. Dig. § 901. 207 Meyer v. Consolidated Ice Co. (C. C.) 163 Fed. 400; Smith v. Au Ores Tp., Mich., 150 Fed. 257, 80 O. C. A. 145, 9 L. R. A. (N. S.) 876; Allnut v. Lancaster (0. C.) 76 Fed. 131. See "Courts," Dec. Dig. (Key No.) § 3^0; Cent. Dig. § 900. 2 08 Hein v. Westinghouse Air Brake Co. (C. C.) 164 Fed. 79; City of St. Charles v. Stookey, 154 Fed. 772, 85 C. C. A. 494. See "Courts," Dec. Dig. (Key No.) § 334; Cent. Dig. § 899. 209 The Westminster (D. C.) 96 Fed. 766. See "Courts," Dec. Dig. (Key No.) § 336; Cent. Dig. § 899. 210 Jones V. United States, 162 Fed. 417, 89 C. C. A. 303; United States V. Kerr (D. C.) 159 Fed. 185 ; United States v. Kilpatrick (D. C.) 16 Fed. 765. But see United States v. Wells (D. O.) 163 Fed. 313 ; United States v. Zara- fonitis, 150 Fed. 97, 80 C. C. A. 51; United States v. Mitchell (C. C.) 136 Fed. 896. See "Courts," Deo. Dig. (Key No.) § 331; Cent. Dig. § 908. 211 I^aurel Oil & Gas Co. v. Galbreath Oil & Gas Co., 165 Fed. 162, 91 C. C. A. 196; Taylor v. Adams Express Co., 164 Fed. 616, 90 C. O. A. 526; Egan V. Chicago Great Western E. Co. (C. C.) 163 Fed. 344; Francisco v. Chicago & A. R. Co., 149 Fed. 354, 79 C. a A. 292; Detroit United Ry. v. Nichols, 165 Fed. 289, 91 C. O. A. 257. See "Courts," Dec. Dig. (Key No.) § 356; Cent. Dig. § 937. §§ 94r-97) POWERS AND PEOCEDURE OF FEDERAL COURTS. 191 of congress provide that the practice in equity in the federal courts shall be substantially the same throughout the Union. And according- ly the federal courts have a uniform and complete system of equity procedure which is administered without reference to the system pre- vailing in the particular state.=^^ This practice is founded on the chancery practice in England, but modified by the rules in equity made by the supreme court. Alterations in the equity jurisdiction of the states cannot affect the jurisdiction of the federal courts in equity.^^* And under the constitution, the distinction between actions at law and suits in equity must be preserved in the federal courts, even where the distinction has been abolished in the state where the court is sit- ting.21* Adjunct Powers. The federal courts possess all the incidental powers which are nec- essary to enable them to exercise their jurisdiction and fulfill their appropriate functions. Thus, they may appoint their inferior officers and see that they discharge their duties; they may admit and disbar attorneys ; they may preserve order in their proceedings and maintain their own authority by punishing contempts against them; they may make rules of practice; they may issue the writs of attachment, ex- 212 Hurt V. HoUIngsworth, 100 U. S. 100, 25 L. Ed. 569; United States v. Miller (C. C) 164 Fed. 444; Vitzthum v. Large (D. C.) 162 Fed. 685; Jones V. Mutual Fidelity Co. (C. C.) 123 Fed. 506; United Cigarette Mach. Co. V. Wright (O. C.) 132 Fed. 195 ; Commonwealth Title Ins. & Trust Co. v. Cum- mings (O. C.) 83 Fed. 767. See "Courts," Dec. Dig. {Key No.) § 335; Cent. Dig. §§ 90Z-90tV2- 213 Reynolds v. Crawfordsville First Nat. Bank, 112 U. S. 405, 5 Sup. Ct. 213, 28 L. Ed. 733; Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495, 28 L. Ed. 52 ; In re Broderick's Will, 21 Wall. 503, 22 L. Ed. 599 ; Hale v. Tyler (C. C.) 115 Fed. 833 ; Schoolfleld v. Rhodes, 82 Fed. 153, 27 C. C. A. 95 ; American Ass'n V. Williams, 166 Fed. 17, 93 C. C. A. 1. See "Courts," Dec. Dig. (Key No.) § 335; Cent. Dig. §| 90Z-90TV2. 214 Scott V. Neel, 140 U. S. 106, 11 Sup. Ct. 712, 35 L. Ed. 358; Bennett V. Butterworth, 11 How. 669, 13 L. Ed. 859; Beatty v. Wilson (C. C.) 161 Fed. 453; Cook v. Foley, 152 Fed. 41, 81 C. C. A. 237; Jones v. Mutual Fidelity Co. (C. C) 123 Fed. 506; Jewett Car Co. v. Klrkpatriek Const. Co. (C. C.) 107 Fed. 622 ; Gravenberg v. Laws, 100 Fed. 1, 40 C. C. A. 240 ; Berkey V. Cornell (C. C.) 90 Fed. 711. In Louisiana, where the civil law forms the basis of the jurisprudence of the state, and the distinction between law and equity never was known, the federal courts must still have distinct branches for such causes as would be cognizable at common law and such as would belong to the jurisdiction of equity. Fenn v. Holme, 21 How. 481, 16 L. Ed. 198. See "Courts," Dec. Dig. {Key No.) § 342; Cent. Dig. § 913. 192 FEDERAL JURISDICTION. (Ch. 7 ecution, injunction, and mandamus; they may keep records; and their judgments operate as a lien upon the lands of the judgment debtor."" Habeas Corpus. The power to issue the writ of habeas corpus, for the purpose of an inquiry into the causes of restraint of liberty, has been granted by statute to the various federal courts and their judges in certain classes of cases where its employment may be necessary to the dis- charge of their business, or where the deliverance of the prisoner may be necessary for the vindication of federal law or of the right of those courts to pass upon it finally. This grant of authority is sub- ject to the following limitation: "The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is com- mitted for trial before some court thereof, or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof, or is in custody in violation of the constitution or of a law or treaty of the United States, or, being a citizen or subject of a foreign state, and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed un- der the commission, or order, or sanction of any foreign state, or under color thereof, the validity and effect whereof depends upon the law of nations, or unless it is necessary to bring the prisoner into court to testify." "« 215 See Rev. St. U. S. §§ 715-727 (U. S. Comp. St. 1901, pp. 579-584). As to writ of mandamus, see Board of Liquidation of City of New Orleans v. Unit- ed States, 108 Fed. 689, 47 C. C. A. 587. The federal courts have power to issue this writ only when ancillary to a jurisdiction already acquired, and not where the writ is applied for as an original remedy. Burnham v. Fields (C. 0.) 157 Fed. 246 ; United States v. Judges of United States Court of Ap- peals, 85 Fed. 177, 29 C. C. A. 78 ; Barber Asphalt Paving Co. v. Morris, 132 Fed. 945, 66 C. C. A. 55, 67 L. E. A. 761 ; United States v. City of New Or- leans, 117 Fed. 610, 54 C. C. A. 106 ; Large v. Consolidated Nat. Banls (C. C.) 137 Fed. 168. So the circuit court of appeals has power to issue writs of certiorari only In aid of its appellate jurisdiction, and cannot issue this writ to review an order of a circuit court which is not appealable. United States V. Circuit Court, Ninth Circuit, District of Montana, 126 Fed. 169, 61 C. C. A. 315. See "Gowrta," Dec. Dig. (Key No.) § S64; Cent. Dig. § 801. 318 Rev. St. U. S. §§ 751-753 (U. S. Comp. St. 1901, p. 592). 98) EEMOVAL OF CAUSES. 193 REMOVAI. OF CAUSES. 98. In order to secure the ends for which the grant of Judicial power to the federal system of courts was made by the con- stitution, provision has been made, by statute, for the re- moval of many kinds of actions from the state courts in urhich they were begun into the federal courts, for trial and decision, subject to certain conditions and limitations. It is competent for congress to authorize the removal to the federal courts of all classes of cases to which the federal judicial power of the United States, as defined by the constitution, extends, ^ and to give them jurisdiction of the cases so removed; and it is no objection that a case authorized to be so removed is not one of which, under any act of congress, the federal courts would have had original juris- diction.^^'' Many acts of congress have been passed at different times on the subject of the removal of causes. But they were almost all repealed or superseded by the act of August 13, 1888,^^' which was designed to stand as the sole general law on the subject of removals, and must be looked to as furnishing the whole system in that regard, except in a few peculiar cases to be presently mentioned. This statute provides that any suit of a civil nature, at law or in equity, arising under the constitution or laws of the United States, or treaties, in which the amount in dispute exceeds $2,000, and which is instituted in a state court, may be removed by the defendant to the proper cir- cuit court of the United States. But if the suit, without involving a federal question, is between citizens of different states, or citizens of the same state claiming lands under grants of different states, or be- tween citizens of a state and aliens, it may be removed by the defend- ant, provided he is not a resident of the state where the suit is brought. If there is a separable controversy in any such suit, which is wholly between citizens of different states and can be fully determined as be- tween them, then the suit may be removed on the application of either one or more of the defendants actually interested in such controversy. Further, if the action is between a citizen of the state where the suit is brought and a non-resident defendant, the latter may remove the case to the federal court if he can show that, in consequence of pirej- udice or local influence, he will not be able to obtain justice in the 217 Gaines v. Fuentes, 92 TT. S. 10, 23 L. Ed. 524. See "Removal of Causes," Dec. Dig. (Key No.) § 11; Cent. Dig. §§ 29-Sl. 218 25 Stat. 433 (U. S. Comp.' St. 1901, p. 508). Bl.Const.L.(3d.Ed.)— 13 194 FEDEEAL JURISDICTION. (Ch. 7 courts of the state. It will be observed that the plaintiff cannot re- move the suit in any event. In addition to this statute there are some earlier acts still remaining in force. Thus, section 641 of the Revised Statutes (U. S. Comp. St. 1901, p. 520), provides for the more effectu- al operation of the civil rights acts of congress by authorizing the removal to the federal courts of civil and criminal cases against any person who is denied, or cannot enforce, in the state courts, any rights secured to him by those laws.^^° Another section provides for the removal of indictments against revenue ofificers for alleged crimes against the state, where it appears that a federal c(uestion or a claim to a federal right is raised in the case and must be decided therein. ^^^ Another act provides for the removal of a personal action brought in any state court by an alien against a civil officer of the United States, being a non-resident of the state where the suit is brought ;^^^ and another for the removal of causes where one party claims lands in dispute under a grant from another state than that in which the suit is brought. ^^^ It is not permissible for the states to deny the right of removal in cases where it is granted by congress, nor to put any restrictions or limitations upon it. Thus where a state statute creates a right of action for damages for personal injuries under certain circumstances, an action, founded on the statute, between citizens of different states, may be brought in a federal court, or removed thereto, notwithstanding the statute assumes to limit the remedy to suits in the courts of the 219 Under this act it was lield that a negro, prosecuted in a state court, could not remove the case merely because there was such a local prejudice against his race and color as to. deprive him of the benefit of a fair trial. Texas v. Gaines, 2 Woods, 342, Fed. Cas. No. 13,847. Rev. St. § 640 (U. S. Comp. St. 1901, p. 520), provided that suits against certain federal corpora- tions might be removed to the federal courts, upon a verified petition "stat- ing that such defendant has a defense arising under or by virtue of the con- stitution or of any treaty or law of the United States." It was held under this act, that the mere fact that the corporation was organized under a law of the United States was sufficient to secure a removal. Turton v. Union Pac. R. Co., 8 Dill. 366, Fed. Cas. No. 14,273. But this law was expressly repeal- ed by section 6 of the act of August 13, 1888 (U. S. Comp. St. 1901, p. 515). 4,'ee "Removal of Causes," Dec. Dig. {Key No.) § 19; Cent. Dig. §§ 37-53. 22 Tennessee v. Davis, 100 U. S. 257, 25 L. Ed. 648. See "Removal of Causes," Dec. Dig. {Key No.) § 22; Cent. Dig. § 50j "Criminal La/u>," Cen\ Dig. § 198. 221 Rev. St. § 644 (U. S. Comp. St. 1901, p. 523). 222 Rev. St, § 647 (U. S. Comp. St. 1901, p. 524). § 98) REMOVAL OF CAUSES. 195 state.^^^ Nor is it competent for a state, by legislative enactment con- ferring upon its own courts exclusive jurisdiction of proceedings or suits involving the settlement and distribution of decedents' estates, to exclude the jurisdiction in such matters of the federal courts, where the constitutional requirement as to citizenship of the parties is met.^''* And on the same principle, state statutes permitting foreign corpora- tions to do business within their limits only on condition that they will not remove suits against them into the federal courts, are void.^'"* 2 23 Chicago & N. W. R. Co. v. Whitton, 13 Wall. 270, 20 L. Ed. 571. See "Removal of Causes," Dec. Dig. (Key No.) § 3; Cent. Dig. § 4- 224 Clark V. Bever, 139 U. S. 96, 11 Sup. Ct. 468, 35 L. Ed. 88. See "Re- moval of Causes," Dec. Dig. {Key No.) § 3; Cent. Dig. § 4- 225 Home Ins. Co. v. Morse, 20 Wall. 445, 22 L. Ed. 365; Hartford Fire Ins. Co. V. Doyle, 6 Biss. 461, Fed. Cas. No. 6,160; Doyle v. Continental Ins. Co., 94 U. S. 535, 24 L. Ed. 148 ; Barron v. Burnside, 121 U. S. 186, 7 Sup. Ct. 931, 30 L. Ed. 915. See "Removal of Games," Dec. Dig. (Key No.) § 3; Cent. Dig. § 5. * 196 THE POWERS OF CONGRESS. (Ch. 8 CHAPTER Vm. THE POWERS OP CONGRESS. 99. Constitution of Congress. 100-101. Organization and Government of Congress. 102. Powers of Congress Delegated. 103-104. Exclusive and Concurrent Powers. 105. Enumerated Powers of Congress. 106. Implied Powers. 107. Limitations on Powers of Congress. CONSTITUTION OF CONGRESS. 99. All legislative powers granted to the TTnited States by the con- stitution are vested in a congress, which consists of two co- ordinate branches, viz.: (a) The senate. (b) The house of representatives. The senate is composed of two senators from each state, chosen by the legislature thereof, for six years, and each senator has one vote. The senate is arranged in three classes, the term of one of such classes expiring every second year; so that at every change in the house of representatives, one-third of the senate also changes. If vacancies happen by resignation or otherwise during the recess of the legislature of the state, the governor may make temporary ap- pointments until the next meeting of the legislature, which shall then fill such vacancies. No person shall be a senator who shall not have attained the age of thirty years and have been nine years a citizen of the United States, and he must, when elected, be an inhabitant of that state for which he shall be chosen.^ The Vice-President of the United States is the president of the senate, but he has no vote except in the case of a tie. , The first article of the constitution provides that the house of rep- resentatives shall be composed of members chosen every second year by the people of the several states, and that the electors in each state i It is not within the power of a state legislature to add anything to the qualifications of members of congress as prescribed by the constitution. State V. Russell, 8 Ohio N. P. 54. See "Vnitea States," Dec. Dig. (Key No.) § 11 j Cent. Dig. § 7. § 99) CONSTITUTION OF CONGRESS. 197 shall have the qualifications requisite for electors of the most nu- merous branch of the state legislature. To be eligible to the office of a representative in congress, it is necessary that the person should have attained the age of twenty-five years and have been a citizen of the United States for at least seven years, and he must, at the time of his election, be an inhabitant of the state choosing him. Represen- tatives are apportioned among the several states according to the num- ber of their inhabitants, counting the whole number of persons in each state, excluding Indians not taxed.^ But when a state chooses to deny the right of voting to any of its male inhabitants who are citizens of the United States and twenty-one years of ^ge, or abridges such right, except for participation in rebellion or other crime, then the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state. When vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies. The times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof, but congress may at any time by law make or alter such regu- lations, except as to the places of choosing senators. Congress shall assemble at least once in every year, and such meet- ing shall be on the first Monday of December, unless they shall by law appoint a different day. A majority of each house constitutes a quorum for the transaction of business; but a smaller number may adjourn from day to day, and may be authorized to compel the at- tendance of absent members, in such manner-and under such penalties as each house may provide. No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person holding any office under the United States shall be a member of either house during his continuance in office.^ By the third section 2 The constitution contains no direction to the states as to the matter of the apportionment of the state into congressional districts. Richardson v. Mc- Chesney, 128 Ky. 363, 108 S. W. 322, 32 Ky. Law Rep. 1237. See "United States," Dec. Dig. {Key No.) § 10; Cent. Dig. § 6. s An act of congress debars persons convicted of certain crimes from "hold- ing any office of honor, trust, or profit under the government of the United States." Rer. St. U. S. § 1782 (U. S. Comp. St. 1901, p. 1212). But it is held 198 THE POWERS OF CONGRESS. (Ch. 8 of the fourteenth amendment it is provided that no person shall be a senator or representative w^ho, having previously taken an oath, as a member of congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But congress may by a vote of two-thirds of each house remove such disability. ORGANIZATiaN AND GOVERNMENT OP CONGRESS. 100. The constitution invests, congress as a body, and cacli house of congress, ^rith all needful power to regulate its ourn or- ganization and government. 101. Each house of congress possesses the usual and necessary par- liamentary potvers, among which are the following: . Ed. 224. Pow- er to exclude lottery tickets from transportation in interstate commerce, see Reilley v. United States, 106 Fed. 896, 46 C. C. A. 25. See "Commerce," Dee. Dig. {Key No.) §§ 15 47 j Cent. Dig. §§ 10-35. 3 Manufacturers' Gas & Oil Co. v. Indiana Natural Gas & Oil Co., 155 Ind. 545, 58 N. E. 706; State ex rel. Corwin v. Indiana & Ohio Oil, Gas & Min- ing Co., 120 Ind. 575, 22 N. E. 778, 6 L. R. A. 579. Compare Jamieson v. In- diana Natural Gas & Oil Co., 128 Ind. 555, 28 N. E. 76, 12 h. R. A. 652. See "Commerce," Dec. Dig. {Key No.) § 15; Cent. Dig. § 34. 61 International Text-Book Co. v. Lynch, 81 Vt. 101, 69 Atl. 541; Inter- national Text-Book Co. v. Peterson, 133 Wis. 302, 113 N. W. 730. See "Com- merce," Dec. Dig. {Key No.) §§ 1, 46. 82 New York L. Ins. Co. v. Cravens, 178 U. S. 389, 20 Sup. Ct. 962, 44 L. Ed. 1116 ; Hooper v. California, 155 U. S. 648, 15 Sup. Ct. 207, 39 L. Ed. 297 ;, 218 THE POWERS OF CONGRESS. (Ch. 8 tion,^' nor the carrying of a pleasure party on a steamboat, though it may touch the shores of different states/* nor the occupation of raft- ing logs, though incidentally connected with commerce between the states."^ As to the persons engaged in commerce, the authority of congress extends to commerce conducted by corporations as well as to that conducted by individuals,*® including, of course, the great in- terstate railways and navigation lines, °^ and to the employes of per- sons and corporations engaged in foreign or interstate commerce,®' so that the regulation of the relation of master and servant, as to acts done in interstate commerce, as to the responsibility of the one for in- juries to the other, and as to limiting the 'hours of labor, is within the rightful power of congress."' As to the means and instrumentalities of commerce, the authority of congress includes the power to legislate upon the subject of private contracts made with reference to foreign or interstate commerce; '" and it is held that soliciting and procuring trade in other states by means of traveling salesmen or agents, and also the business of such agents, is an integral part of the commercial Paul V. Virginia, 8 Wall. 168, 19 L. Ed. 357 ; State v. Phipps, 50 Kan. 609, 31 Pac. 1097, 18 L. R. A. 657, 34 Am. St. Rep. 152; Insurance Co. of North America v. Com., 87 Pa. 173, 30 Am. Rep. 352; Com. v. Gregory, 121 Ky. 256, 89 S. W. 168, 28 Ky. Law Rep. 217; State v. Insurance Co. of North America, 71 Neb. 320, 106 N. W. 767. See "Commerce," Deo. Dig. {Key No.) i 45; Cent. Dig. § 33. 63 National Council, Junior Order American Mechanics v. State Council, Junior Order United American Mechanics, 104 Va. 197, 51'' S. E. 166 (affirm- ed 203 U. S. 151, 27 Sup. Ct. 46, 51' L. Ed. 132). See "Commerce," Dec. Dig. {Key No.) § ^6; Cent. Dig. §§ 100, US, 126. 04 State V. Seagraves, 111 Mo. App. 353, 85 S. W. 925. See "Commerce," Dec.- Dig. (Key No.) § 47; Cent. Dig. § 26. 65 Tittabawassee Boom Co. v. Cunning, How. N. P. (Mich.) 82. See "Comr merce," Dee. Dig. (Key No.) § 48; Cent. Dig. § 41. 06 Greek-American Sponge Co. v. Richardson Drug Co., 124 Wis. 469, 102 N. W. 888, 109 Am. St. Rep. 961 ; McNaughton Co. v. McGlrl, 20 Mont. 124, 49 Pac. 651, 38 L. R. A. 367, 63 Am. St. Rep. 610. See "Commerce," Dec. Dig. {Key No.) § 3. 6 7 United States v. Craig (C. O.) 28 Fed. 795. See "Commerce," Dec. Dig. {Key No.) §§ 11, 21, 21, 32-36; Cent. Dig. §§ 10-21, 25, 26, 31-39, 81, 82. 08 Snead v. Central of Georgia R. Co. (C. C.) 151 Fed. 608. See "Com- merce," Dec. Dig. (Key No.) § 16. 6 9 State V. Chicago, M. & St, P. R. Co., 136 Wis. 407, 117 N. W. 686, 19 L. R. A. (N. S.) 326 ; State v. Northern Pac. Ry. Co. (Wash.) 102 Pac. 876. See ^'Commerce," Dec. Dig. (Key No.) § 16. 7 Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 20 Sup. Ct. 96, 44 Ii. Ed. 136. See "Commerce," Deo. Dig. (Key No.) § 3. § 105) ENUMERATED POWERS OF CONGRESS. 219 transaction completed by the sale and delivery of the goods.'^ But the act or business of commercial advertising is not necessarily a part of commerce,'^ nor is the selling of passenger tickets.'* It is further to be observed that this grant of power to congress was not made with reference solely to the condition and course of commerce as these ex- isted at the time the constitution was formed. Its terms are broad enough to permit the authority and its exercise to keep pace with the progress and development not only of commercial intercourse but also of the means employed in that intercourse. Powers and agencies are now made available for the interchange of commodities which were little dreamed of by the fathers of the Republic. But the advance of science and the arts serves only to enlarge the field for the exercise of legislative authority, in this regard, without affecting the limits of the power itself.'* Same — When Exclusive, When Concurrent. The question whether the power of congress to regulate foreign and interstate commerce is exclusive, or whether the states have a concur- rent authority, to any extent, over the same subject, is the most dif- ficult which has arisen in the construction of this clause of the consti- tution. The general result of the authorities may be stated as follows : First, the states cannot lawfully adopt any measures tending directly to regulate, obstruct, or interfere with such commerce as is confided to the paramount control of congress, or which may be inconsistent with the legislation of congress on the same subject.'^ Second, if the Ti United States v. American Tobacco Co. (0. C.) 164 Fed. 700; Kehrer V. Stewart, 117 Ga. 969, 44 S. E. 854 (affirmed 197 U. S. 60, 25 Sup. Ct. 403, 49 L. Ed. 663); Loverin cSs Browne Co. v. Travis, 135 Wis. 322, 115 N. W. 829; Havens & Geddes Co. v. Diamond, 93 111. App. 557; Herman Bros. Co. v. Nasiacos (Colo.) 103 Pac. 301. See ''Commerce," Deo. Dig. (Key No.) § 4O; Cent. Dig. §§ 29, SO. T2 Com. V. R. I. Stierman Mfg. Co., 189 Mass. 76, 75 N. E. 71. See "Comr merce," Deo. Dig. (Key No.) § 55. 73 Com. V. Keary, 198 Pa. 500, 48 Atl. 472. See "Commerce," Deo. Dig. (Key No.) §§ 57, 58; Cent. Dig. § 78. T4 Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1, 9, 24 L. Ed. 708. See "Commerce," Dec. Dig. (Key No.) § 2S; Cent. Dig. § S2. TB Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678; Welton v. Missouri, 91 U. S. 275, 23 L. Ed. 347 ; Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128; Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23; Spratlln v. St. Louis Southwestern R. Co., 76 Ark. 82, 88 S. W. 836; State v. Chicago, M. & St. P. R. Co., 136 Wis. 407, 117 N. W. 686, 19 L. R. A. (N. S.) 326 ; New York Cent. & H. R. R. Co. v. Board of Chosen Freeholders of Hudson Coun- 220 THE POWERS OF CONGEESS. (Ch. 8- particular subject to which the power is to be directed is national in its character, or is such that it can properly be regulated only by a uniform system, in so much that varying regulations by the different states would cause inconvenience or detriment, it is not competent for the states to legislate on the subject, and if congress does not act, its silence is to be taken as an evidence of its will that the subject shall be free from all regulation or restriction." Third, local and limited matters,- not national in their character, which are most likely to be wisely provided for by such diverse rules as the authorities of the dif- ferent states may deem applicable to their own localities, may be regu- lated by the state legislatures, in the absence of any act of congress on the same subject.^'' Fourth, there are certain classes of state legisla- tion which, although they may incidentally or remotely affect foreign or interstate commerce, are not intended as regulations thereof, but have their primary relation to the domestic concerns of the particular state or of its citizens, and are properly in the nature of police regula- tions. In the absence of any act of congress covering the same ground,, such laws are valid. And it is understood that, in so far as they relate ty, 74 N. J. Law, 367, 65 Atl. 860; Gulf, O. & S. F. R. Co. v. Miami S. S. Co.,. 86 Fed. 407, 30 C. C. A. 142. See Adams Exp. Co. v. Charlottesville Woolen Mills (Va.) 63 S. E. 8 ; State v. Standard Oil Co., 218 Mo. 1, 116 S. W. 902. Articles recognized by congress as subjects of interstate commerce cannot be- held to be otherwise. State v. Peet, 80 Vt. 449, 68 Atl. 661, 14 L. R. A. (N. S.) 677. See "Commerce," Dee. Dig. (Key No.) § S; Cent. Dig. § 5. 7 6 Bowman v. Chicago & N. W. R. Co., 125 U. S. 465, 8 Sup. Ct. 689, 1062, 31 L. Ed. 700 ; County of Mobile v. Kimball, 102 U. S. 691, 26 L. Ed. 238; Rob- bins V. Shelby County Taxing Dlst., 120 U. S. 489, 7 Sup. Ct. 592, 30 L. Ed. 694 ; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 5 Sup. Ct. 826, 29 Zi, Ed. 158; Brown v. Houston, 114 U. S. 622, 5 Sup. Ot. 1091, 29 L. Ed. 257; Leisy v. Hardin, 135 V. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128 ; Globe Elevator Co. V. Andrew (C. C.) 144 Fed. 871 ; State v. Peet, 80 Vt. 449, 68 Atl. 661, 14 L. R. A. (N. S.) 677 ; Southern Exp. Co. v. Goldberg, 101 Va. 619, 44 S. E. 893, 62- L. R. A. 669 ; Richmond & A. R. Co. v. R. A. Patterson Tobacco Co., 92 Va. 670, 24 S. E. 201, 41 L. R. A. 511; Hardy v. Atchison, T. & S. F. R. Co., 32 Kan. 698, 5 Pac. 6. See "Commerce," Dee. Dig. (Key No.) §§ 1-14; Cent. Dig^ ^ 1-9, 30, 92. 7 7 United States v. Adair (D. C.) 152 Fed. 737; Oooley v. Board of Wardens, of Port of Philadelphia, 12 How. 299, 13 L. Ed. 996; Wilson v. Blackbird Creek Marsh Co., 2 Pet. 245, 7 L. Ed. 412 ; Pittsburgh, C., C. & St. L,. R. Co. V. Hunt (Ind.) 86 N. E. 328; American Exp. Co. v. State, 167 Ind. 707, 79 N.. E. 353 ; Western Union Tel. Co. v. Call Pub. Co., 58 Neb. 192, 78 N. W. 519 ;. Morris-Scarboro-Moffitt Oo. v. Southern Exp. Co., 146 N. C. 167, 59 S. E. 667,. 15 L. R. A. (N. S.) 983. See "Commerce," Deo. Dig. (Key No.) §§ l-Uj Cent^ Dig. §§ 1-9, SO, 92. ^ 105) ENUMEEATED POWERS OF CONGRESS. 221 to or affect commerce, congress, by refraining from acting on the same subject, sanctions and adopts them J* But there are certain classes of state legislation which so directly affect foreign or interstate com- merce, or so plainly impose a burden or restriction upon it, that they are void even though they may not come in conflict with any regulation of congress on the same subject.'' Same — Navigation. The power of congress to regulate commerce includes the power to regulate navigation, in so far as it is conducted between this country and foreign nations or between the several states. And this power extends both to salt and fresh waters, and is not limited by the ebb and flow of the tide.'" Even though the particular stream may lie wholly within the limits of a single state,*^ yet navigation on it is subject to the regulating power of the national government if it forms part of a chain or system of waters leading to foreign countries or other states. In fact, this power extends to all navigable waters of the United States. And "they constitute navigable waters of the United States when they form, in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries." *^ Even when a 78 Sherlock v. Ailing, 93 U. S. 99, 23 L. Ed. 819; Kelley v. Great Northern Ry./Co. (0. C.) 152 Fed. 211 ; In re Lebolt (C. C.) 77 Fed. 587 ; Pittsburgh, C, C. & St. L. R. Co. V. Hunt (Ind.) 86 N. E. 328; State v. Chicago, M. & St. P. R. Co., 136 Wis. 407, 117 N. W. 686, 19 L. R. A. (N. S.) 326. Congress, having exclusive control over commerce between the states, may subject such commerce to the laws of the states. City of Indianapolis v. Bieler, 138 Ind. 30, 36 N. E. 857. See "Commeroe," Dec. Dig. (Key No.) §§ 1-14; Cent. Dig. f§ 1-9, SO, 92. 79 Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527; Missouri, K. & T. R. Co. V. Fookes (Tex. Civ. App.) 40 S. W. 858. See "Commerce," Dec. Dig. (Key No.) §§ 4, 12, JfT ; Cent. Dig. §§ S, 5, 1, 9, 26. 8 Ryman Steamboat Line Co. v. Com., 125 Ky. 253, 101 S. W. 403, 30 Ky. Law Rep. 1276, 10 L. R. A. (N. S.) 1187; Corrigan Transit Co. v. Sanitary Dist. of Chicago, 137 Fed. 851, 70 C. C. A. 381. See "Commerce," Dec. Dig. (Key No.) §§ 3, 18; Cent. Dig. §§ 3, 12, 13. 81 But see, as to the power of the states to regulate and control the navi- gable waters within their own boundaries, St. Anthony Falls Water Power Co. V. Board of Water Com'rs, 168 U. S. 349, 18 Sup. Ct. 157, 42 L. Ed. 497 ; Morgan v. COm., 98 Va. 812, 35 S. E. 448. Sec "Cominerce," Dec. Dig. (Key No.) §§ 12, 13, n, 18; Cent. Dig. §§ 7, 9-13. 8 2 The Daniel Ball, 10 Wall. 557, 563, 19 L. Ed. 999; Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23; Veazie v. Moor, 14 How. 568, 14 L. Ed. 545. See "Commerce," Dec. Dig. (Key No.) §§ 12, IS, n, 18; Cent. Dig. §§ 7, 9-13. 222 THE POWERS OF CONGRESS. (Ch. 8 vessel is plying between ports of the same state, yet if it is navigating the high seas, it is subject, as well as the business in which it is en- gaged, to the regulating power of congress.^ ^ But a state may im- prove its own rivers and harbors, and take toll from those who use the improvements, provided the navigation of the waters is kept free and there is no interference with any system established by authority of congress.^* So also a state may authorize the erection of a dam across a navigable river which is wholly within its limits, in the ab- sence of any legislation of congress bearing on the case, but this is subject to the power of congress to declare what does or does not con- stitute an obstruction to navigation and to order the removal or altera- tion of obstructions.*^ The authority to regulate ferries has never been claimed by the general government, but has always been exercised by the states. Consequently, an act of congress declaring a particular river to be a common highway, free to all citizens of the United States, does not interfere with the right of the state to create and regulate ferries thereon and license the owners of boats engaged in such ferry service.^® But the states cannot impose license taxes upon tugs and towboats engaged in navigating the high seas and the great waterways of commerce.*^ Nor can they impose restrictions or conditions upon such vessels, except such as may relate only to the policing of their own harbors.^* S3 Lord V. Goodall, N. & P. S. S. Co., 102 U. S. 541, 26 L. Ed. 224; Pacific Coast S. S. Co. V. Board of Railroad Com'rs (C. O.) 18 Fed. 10. See "Com- merce," Dec. Dig. (Key No.) §§ 12, 13, 17, 18; Gent. Dig. §§' 7, 9-13. si Sands v. Manistee River Imp. Co., 123 U. S. 288, 8 Sup. Ct. 113, 31 L. Ed. 149; Benjamin v. Manistee River Imp. Co., 42 Mich. 628, 4 N. W. 483. See "Commeroe," Dec. Dig. {Key No.) §§ 12, 13, 11, 18; Cent. Dig. §§ 7, 9-13; "Constitutional Law," Dec. Dig. (Key No.) § 120; Cent. Dig. § 282. 8 5 Pound V. Tnrck, 95 U. S. 459, 24 L. Ed. 525; Union Bridge Co. v. Unit- ed States, 204 U. S. 364, 27 Sup. Ct. 367, 51 L. Ed. 523 ; Manigault v. Springs, 199 U. S. 473, 26 Sup. Ct. 127, 50 L. Ed. 274 ; North Bloomfield Gravel Mln. Co. V. United States, 88 Fed. 664, 32 C O. A. 84. See "Commerce," Dec. Dig. {Key No.) § 20; Cent. Dig. § U. 8 8 Fanning v. Gregoire, 16 How. 524, 14 L. Ed. 1043 ; Chiapella v. Brown, 14 La. Ann. 189. But see New York Cent. & H. R. R. Co. v. Board of Chosen Freeholders of Hudson County, 74 N. J. Law, 367, 65 Atl. 860. See "Com- merce," Dec. Dig. (Key No.) §§ 5, 25; Cent. Dig. § 20. 8 7 Moran v. New Orleans, 112 U. S. 69, 5 Sup. Ct. 38, 28 L. Ed. 653; Har- mon V. Chicago, 147 U. S. 396, 13 Sup. Ct. 306, 37 L. Ed. 216. See "Comr merce," Dec. Dig. (Key No.) § 63; Cent. Dig. % 120. 8 8 Sinnot v. Davenport, 22 How. 227, 16 L. Ed. 243. See "Commerce," Dec. Dig. (Key No.) § 57; Cent. Dig. S 78. § 105) ENUMERATED POWERS OF CONGRESS. 223 The power to regulate navigation, as a part of foreign and interstate commerce, includes the regulation of its incidents. In this connection congress has passed laws prescribing rules for navigation on the high seas, laws establishing a system of light-houses and buoys, life-saving stations, and other means of protecting and preserving those engaged in navigation, laws for the regulation of ports and harbors and the im- provement of rivers and other waterways, laws for the government of American seamen,*^ and laws relating to the liability of ship-owners and others engaged in commerce, either declaring, altering, or supple- menting the rules of' the common law or the general law-merchant. Same — Vessels. Since ships are among the principal means or instruments by which foreign and interstate commerce is carried on, it follows that they are subject to the regulation of congress. Hence all federal laws relating to the registry or nationality of American ships, or prescribing rules for their transfer, or for the recording of such transfers, or determin- ing what shall be sufficient evidence of title to them, or providing for the recording of mortgages of ships, are to be sustained as enacted un- der the commerce power."" And since the authority of congress in this respect is paramount, state laws, in so far as they may be incon- sistent with the acts passed by congress, must yield in authority.^^ Thus, for example, an act of congress providing for the recording of mortgages of ships will control the state statute of frauds."^ While 80 state statutes making it a misdemeanor for any person to entice or aid a seaman to desert his vessel while within the waters of the state are not unconstitutional, not being in conflict with any existing act of congress. Handel v. Chaplin, 111 Ga. 800, 36 S. E. 979 ; Ex parte Young, 36 Or. 247, 59 Pac. 707, 48 L. K. A. 153, 78 Am. St. Rep. 772. See "Commerce," Dec. Dig. (Key No.) §§ 17-26, 48; Cent. Dig. §§ 10-S9. 8 White's Bank v. Smith, 7 Wall. 646, 19 L. Ed. 211; Blanchard v. The Martha Washington, 1 Cliff. 463, Fed. Cas. No. 1,513; Foster v. Chamber- lain, 41 Ala. 158; Shaw v. McCandless, 86 Miss. 296. See "Commerce," Dec. Dig. (Key No.) §§ 21, 57; Cent. Dig. §§ 10-21, 37-39, 73. 01 But state statutes giving liens on ships for necessary repairs or sup- plies furnished on the credit of the vessel, enforceable by proceedings in rem in a court of admiralty, as arising under maritime contracts, do not unlaw- fully interfere with the authority of congress. Iroquois Transp. Co. v. De Laney Forge & Iron Co., 205 U. S. 354, 27 Sup. Ct. 509, 51 L. Ed. 836. The Energia (D. C.) 124 Fed. 842; The Robert Dollar (D. C.) 115 Fed. 218. See "Commerce," Dec. Dig. (Key No.) § 80. 02 Mitchell V. Steelman, 8 Oal. 363. See "Commerce," Dec. Dig. (Key No.) § 67; Cent. Dig. § 73. 224 THE POWERS OF CONGRESS. (Ch. 8 the states cannot tax ships as instruments of commerce, yet they may tax the owners of ships for their interest in the same as personal prop- erty. °* Same — Regulation of Ports and Harbors. In the class of subjects generally left to the legislation of the in- dividual states is included the regulation of ports and harbors, in re- spect to the establishment of harbor lines, the maintenance and regu- lation of wharves, state inspection laws, local pilotage rules, and all such measures as belong to the police regulation of the public ports and waterways of a state."* The harbors and other navigable waters of a state are indeed subject to the regulating power of congress, in so far as they belong to or are used for that kind of commerce which may be denominated foreign or interstate, just as much as are the high seas. But until congress chooses to enter upon the field of legislation, in respect to the subjects here mentioned, state laws on those subjects are valid and must be enforced, and when congress acts, those laws are not repealed but suspended in their operation." ° But a state stat- ute entitling port wardens to receive a certain sum or fee for every ves- sel coming into port, whether they are called on to perform any service or not, is a regulation of commerce and unconstitutional. °° Same — Embargo. The limits of the power of congress to regulate foreign commerce were very seriously considered in connection with the embargo laid upon such commerce in 1807, at the special recommendation of Jef- ferson, then President. Against the constitutionality of this measure it was urged that an embargo suspending foreign commerce for an in- definite or unlimited period cannot properly be described as a "regula- tion" of commerce, since it results in a temporary destruction of it. The power to regulate, it was said, does not include the power to an- 93 Wheeling, P. & C. Transp. Co. v. Wheeling, 99 U. S. 273, 25 L. Ed. 412; City of St. IjOuIs v. Wiggins Ferry Co., 11 Wall. 423, 20 L. Ed. 192 ; Howell V. State, 3 Gill (Md.) 14. See "Commerce," Deo. Dig. (Key No.) § 72; Cent. Dig. § 12i. 9* See Tlttabawassee Boom Co. v. Cunning, How. N. P. (Mich.) 82. See "Commerce," Dec. Dig. {Key No.) § U; Cent. Dig. § 19. 96 Henderson v. Spoflford, 59 N. Y. 131 ; The James Gray v. The John Fraser, 21 How. 184, 16 L. Ed. 106; Pacific Mail S. S. Co. v. JolifCe, 2 Wall. 450, 17 L. Ed. 805. See "Commeree," Deo. Dig. (Key No.) §§ 10, 12; Cent. Dig. §§ 8, 9. 9 8 Steamship Co. v. Portwardens, 6 Wall. 31; Hackley v. Geraghty, 34 N. J. Law, 332. See "Commerce," Dec. Dig. {.Key No.) § 76; Cent. Dig. § 57, § 105) ENUMERATED POWERS OF CONGRESS. 225 nihilate. The supreme court has never passed upon this question. But it was decided in the inferior courts that the embargo act was a valid exercise of the power of congress, because it was not aimed at the de- struction of commerce, but was intended as a means of defending, pre- serving, and protecting our foreign commerce. There can be no doubt, however, that this act went to the very extreme limit of the lawful ex- ercise of this great power of congress.*'' Same — Pilotage. The states retain the power, until congress shall act, to establish rules for the qualification and licensing of pilots and as to their serv- ices upon vessels approaching or leaving their ports and the fees to be charged therefor.'* But as the subject concerns foreign commerce, it is within the domain intrusted to the control of congress, and that body has power either to adopt a uniform system on the subject of pilots, or to adopt and sanction the systems in force in the several maritime states. And if it should make the entire subject national in its character, and prescribe uniform rules and regulations, all provi- sions of the state statutes which might be inconsistent therewith would have to give way.°* But a state pilot law which discriminates in favor of "coasters within the state" or vessels of that and the two adjoining states, conflicts with the federal statute and is void.^"" Same — Quarantine and Other Sanitary Regulations. It is within the lawful power of each state to enact sanitary laws, quarantine laws, and reasonable inspection laws, and take such action as will prevent the introduction into the state of persons, animals, or plants suffering from contagious or infectious diseases. Statutes of this character are not regarded as regulations of commerce but as police laws. But they may not substantially burden or prohibit for- eign or interstate commerce, beyond what is necessary for self-protec- tion, and must yield in all points where they are inconsistent with general quarantine or sanitary regulations prescribed by congress.^"^ 87 See 2 Story, Const. §§ 1289-1292. 88 Thompson v. Darden, 198 U. S. 310, 25 Sup. Ct. 660, 49 L. Ed. 1064; 01- sen V. Smith, 195 U. S. 332, 25 Sup. Ct. 52, 49 L. Ed. 224; St. George v. Hardie, 147 N. O. 88, 60 S. E. 920. See "Commerce," Dec. Dig. (Key No.) § 23; Cent. Dig. § 18. 99 The Panama, Deady, 27, Fed. Cas. No. 10,702; Cisco v. Roberts, 6 Bosw. (N. T.) 494. See "Commerce," Dec. Dig. (Key No.) § 23; Cent. Dig. § 18. 100 Spraigue v. Thompson, 118 U. S. 90, 6 Sup. Ot. 988, 30 L. Ed. 115. See "Commerce," Dec. Dig. (Key No.) §§ 23, 57; Cent. Dig. §§ 18, U. 101 Held v. Colorado, 187 U. S. 137, 23 Sup. Ct. 92, 47 L. Ed. 108 ; Smith Bl.Cokst.L..(3d.Ed.)— 15 226 THE POWERS OF CONGRESS., (Ch. 8 The legislative authority of congress in this respect has been mani- fested in laws sanctioning and enforcing the quarantine laws of the various maritime states, with reference to foreign commerce, and au- thorizing United States officers to aid and co-operate in their enforce- ment,^"^ and also in statutes establishing a national quarantine .system and United States quarantine stations at various ports, under the gen- eral supervision of the secretary of the treasury and the immediate control of the officers of the marine hospital service,^"' and in the provision of the immigration laws which excludes from the country "persons suffering' from a loathsome or a dangerous contagious dis- ease." ^"* As to interstate sanitary regulations, there is an act of congress, applicable in cases where it shall be made to appear to the satisfaction of the President that cholera, yellow fever, small pox, or plague exists in any state or territory, authorizing the secretary of the treasury to make and enforce regulations to prevent the spread of the disease; ^°^ also an act establishing a bureau of animal indus- try in the department of agriculture, for the study of communicable diseases among animals and the means of preventing or extirpating such diseases, and also prohibiting the exportation of diseased live stock or their transportation from one state into another; ^"^ and the V. St. Louis & S. W. R. Co., 181 U. S. 248, 21 Sup. Ct. 603, 45 L. Ed. 847; Rasmussen v. Idaho, 181 U. S. 198, 21 Sup. Ct. 594, 45 L. Ed. 820 ; Kimmish V. Ball, 129 U. S. 217, 9 Sup. Ct. 277, 32 L. Ed. 695 ; Morgan's Louisiana & T. R. & S. S. Co. V. Board of Health, 118 U. S. 455, 6 Sup. Ct. 1114, 30 L. Ed. 237 ; Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527 ; Wilson V. Black Bird Creek Marsh Co., 2 Pet. 245, 7 L. Ed. 412; Austin v. State, 101 Tenn. 563, 48 S. W. 305, 50 L. R. A. 478, 70 Am. St. Rep. 703 (affirmed 179 U. S. 343, 21 Sup. Ct. 132, 45 L. Ed. 224) ; Compagnle Frangaise de Navi- gation a, Vapeur v. State Board of Health, 51 La. Ann. 645, 25 South. 591, 56 L. R. A. 795, 72 Am. St. Rep. 458 (affirmed 186 U. S. 380, 22 Sup. Ct. 811, 46 L. Ed. 1200); Ex parte Hawley (S. D.) 115 N. W. 93, 15 L. R. A. (N. S.) 138; Patrick V. State (Wyo.) 98 Pac. 588. See "Oommeroe," Dec. Dig. {Key No.) § 52; Cent. Dig. §§ i8-53. 102 Rev. St. U. S. § 4792 (U. S. Comp. St. 1901, p. 3306); Act Cong. Apr. 29, 1878, 20 Stat. 37 (U. S. Comp. St. 1901, p. 3307) ; Act Cong. Feb. 15. 1893, 27 Stat. 449 (U. S. Comp. St. 1901, p. 3312) ; Compagnle Frangaise de Navi- gation a Vapeur v. State Board of Health, 186 U. S. 380, 22 S. Ct. 811, 46 L. Ed. 1209. See "Commerce," Dec. Dig. (Key No.) § 52; Gent. Dig. §§ i8-5S. 103 Act Cong. April 29, 1878, 20 Stat. 37 (U. S. Comp. St. 1901, p. 3307) ; Act Cong. March 5, 1888, 25 Stat. 43 (U. S. Comp. St. 1901, p. 3310) ; Act Cong. Aug. 1, 1888, 25 Stat. 355 (U. S. Comp. St. 1901, p. 3310). 104 Act Cong. March 3, 1891, 26 Stat. 1084 (U. S. Comp. St. 1901, p. 1294). 105 Act Cong. March 27, 1890 (U. S. Comp. St. 1901, p. 3311). 108 Act Cong. May 29, 1884, 23 Stat. 31 (U. S. Comp. St. 1901, p. 299) ; Act § 105) ENUMERATED POWERS OP CONGRESS, 227 "pure food and drug law" of '1906, which forbids the manufactute (in the territories and the District of Columbia) and the sale or trans- portation in interstate and foreign commerce of adulterated, misbrand- ed, poisonous, or deleterious foods, drugs, medicines, and liquors.*"^ Same — Imports. In pursuance of its power to regulate foreign commerce, congress has passed many laws with regard to the importation into this country of articles from abroad.^"" Most of these acts have been so plainly within the scope of the power in question that their constitutionality has never been called in controversy before the courts. A detailed ex- amination of these statutes is beyond our present purpose, but refer- ence in general terms may be made to the laws establishing a tariff of customs duties, those designating the ports of entry, and those creating and regulating the bonded warehouse system. After goods imported from abroad have reached the custom house, they remain in the possession of the United States until delivered to the consignee, and the United States has a lien on them for the duties. During that period they cannot be attached or levied on, or otherwise taken out of the custody of the federal officers by any state process.^"® The states cannot lay any tax upon goods imported from abroad so long as they remain in the hands of the original importer, or, having left his hands, so long as they remain in the original packages of importa- tion. When the importer has parted with them, or when the original cases have been broken up, then the goods become taxable as a part of the general mass of property in the state.*^" Cong. March 3, 1891, 26 Stat. 1089 (U. S. Comp. St. 1901, p. 3189) ; Act Cong. Feb. 2, 1903, 32 Stat. 791 (U. S. Comp. St. Supp. 1909, p. 1183). On these laws see Illinois- Cent. E. Co. v. McKendree, 203 U. S. 514, 27 Sup. Ct. 153, 51 L. Ed. 298 ; Asbell v. Kansas, 209 U. S. 251, 28 Sup. Ct. 485, 52 L. Ed. 778 ; United States V. Slater (D. C.) 123 Fed. 115 ; United States v. Beyer (D. C.) 85 Fed. 425. See "Commerce," Deo. Dig. (Key Vo.) § 35 ; Cent. Dig. §§ 23, 26, 89. 10 7 Act Cong. June 30, 1906, 34 Stat. 768 (U. S. Comp. St. Supp. 1909, p. 1187). 108 As to the validity of the act of congress prohibiting the importation of teas inferior in quality to the government standard, see Buttfield v. Stranahan, 192 U. S. 470, 24 Sup. Ct. 349, 48 L. Ed. 525 ; Buttfield v. Bidwell, 96 Fed. 328, 37 C. C. A. 506. See "Commerce," Deo. Dig. (Key No.) §§ 4, 31, 77; Cent. Dig. §§ 3, 5, 2Jt, 61-70. 109 Harris v. Dennie, 3 Pet. 292, 7 L. Ed. 683. See "Attachment," Dec. Dig. (Key No.) § 180; Cent. Dig. § 558; "Customs Duties," Deo. Dig. (Key No.) § 91; Cent. Dig. § 227. 110 Brown v. Maryland, 12 Wheat. 419, 6 U Ed. 678; Cook v. Pennsylvania, 228 THE POWEKS OF CONGRESS. (Ch. 8 Same — Immigration. The term "commerce," as used in the constitution, is not limited to an exchange of commodities, but includes as well intercourse with foreign nations. And the term "intercourse" includes the transpor- tation of passengers.^^^ Consequently it is within the power of con- gress, under this grant, to regulate immigration. It may totally pro- hibit the coming into the United States of any class, degree, or na- tionality- of immigrants, or it may prescribe conditions or restrictions upon such immigration, or impose a tax on the owners or masters of vessels bringing foreigners into the country. Examples of the exercise of this power by congress may be seen in the statute which forbids the importation of alien laborers under contract, and in that which excludes the Chinese. The only limitation upon the power of congress in this respect is that its regulations or prohibitions must not contravene the provisions of treaties between this country and foreign nations.^ ^^ This rule also involves a limitation upon the power of the states. The several states may not lay any restriction upon immigration. ^^^ It is not within the power of a state to impose taxes upon such immigration, or upon the masters or owners of ves- sels bringing foreigners into their ports for the privilege of so doing, or upon the aliens themselves. Such a tax would be an unlawful regulation of foreign commerce.^^* But a state law which requires 97 U. S. 566, 24 L. Ed. 1015; People v. Wilmerding, 62 Hun, 391, 17 N. Y. Supp. 102 ; Waring v. Mobile, 8 Wall. 110, 19 L. Ed. 342 ; Schollenberger v. Pennsylvania, 171 U. S. 1, 18 Sup. Ct. 757, 43 L. Ed. 49 ; St. Louis v. Wortman, 213 Mo. 131, 112 S. W. 520. See "Commerce," Deo. Dig. (Key No.) § 41; Cent. Dig. §§ SO, 31. 111 People V. Raymond, 34 Cal. 492; Passenger Cases, 7 How. 283, 12 L. Ed. 702. iSefe "Commerce," Dec. Dig. (Key No.) §§ 1, 4; Cent. Dig. §§ 2, 3, 5. 112 Edye v. Robertson (Head Money Oases), 112 U. S. 580, 5 Sup. Ct. 247, 28 L. Ed. 798 ; U. S. v. Craig (C. C.) 28 Fed. 795. See "Aliens," Deo. Dig. (Key No.) § 39; Cent. Dig. § 100. . lis But the business of hiring laborers and soliciting emigrants is not "com- merce," and a state law requiring an emigrant agent to obtain a license is not invalid. State v. Napier, 63 S. O. 60, 41 S. E. 13. See "Aliens," Deo. Dig. (Key No.) § 39; Cent. Dig. § 100; "Commerce," Dec. Dig. (Key No.) §§ 43, U, 7S; Cent. Dig. § 129. 11* Henderson v. Mayor of City of New York, 92 U. S. 259, 23 L. Ed. 543 ; Chy Lung v. Freeman, 92 U. S. 275, 23 L. Ed. 550 ; People v. Downer, 7 Cal. 169 ; New York v. Compagnie G6n6rale Transatlantique, 107 U. S. 59, 2 Sup. Ct. 87, 27 L. Ed. 383 ; People of State of California v. Pacific Mail S. S. Co. (C. C.) 16 Fed. 344; Passenger Cases, 7 How. 283, 12 L. Ed. 702. See "Conu- merce," Dec. Dig. (Key No.) §§ 50, 13; Cent. Dig. §§ i8, 129. § 105) ENUMERATED POWERS OP CONGRESS. 229 a report to be made of the passengers brought from abroad into one of its ports, and prescribes a fine as a penalty for failure to comply with its terms, is not regarded as a regulation of commerce, but merely as a police regulation, and is not invalid.^^° Same — Railroads. Inasmuch as the control over commerce includes the means or agen- cies by which it is carried on, it follows that the business of railroad companies, in so far as it concerns traffic between points which do not lie within the same state, is subject to the regulation of congress and exempt from that of the states.^^" But the fact that a railroad company is engaged in interstate commerce does not exempt it from control by the state in respect to all business done therein not directly connected with traffic between the states.^^'' Congress may provide that all railroads companies may carry pas- sengers, mails, and property over their roads and bridges, on their way from one state to another, and receive compensation therefor, and may connect with other roads so as to form continuous lines for the transportation of the same to their places of destination.^^* And con- gress likewise has authority to construct or authorize the construction of railroads across the states and territories of the United States, and the franchises thus conferred cannot, without its permission, be taxed by the states.^^" In the exercise of this power congress has further enacted laws (which have been sustained as valid) requiring railroad cars employed in interstate traffic to be equipped with certain safety appliances, not- 11 B New York City v. Miln, 11 Pet. 102, 9 L. Ed. 648. See "Commerce," Deo. Dig. {Key No.) § 50; Cent. Dig. § 48. 116 Interstate Commerce Commission v. Detroit, 6. H. & M. E. Co., 167 U. S. 633, 17 Sup. Ct. 986, 42 L. Ed. 306 ; Illinois Cent. R. Co. v. Illinois, 163 U. S. 142, 16 Sup. Ct. 1096, 41 L. Ed. 107 ; United States v. Geddes, 131 Fed. 452, 65 C. C. A. 320; Interstate Stockyards Co. v. Indianapolis U. R. Co. (C. C.) 99 Fed. 472. See "Commerce," Dec. Dig. (Key No.) §§ 5, 27, S2-S4, 47; Cent. Dig. §§ 3, 5, 25, 86, 81, 82. 117 McGuire v. Chicago, B. & Q. R. Co., 131 Iowa, 340, 108 N. W. 902; State V. Jacksonville Terminal Co., 41 Fla. 377, 27 South. 225 ; United States v. Chi- cago, K. & S. R. Co. (C. C.) 81 Fed. 783. See "Commerce," Dec. Dig. (Key No.) §§ 5, 27, 32-Si, 47; Cent. Dig. §§ 3, 5, 25, 26, 81, 82. 118 rhibuque & S. C. R. Co. v. Richmond, 19 Wall. 584, 22 L. Ed. 173. See "Commerce," Dec. Dig. (Key No.) §§ 3, 5; Cent. Dig. § 3. 119 California v. Central P. R. Co., 127 U. S. 1, 8 Sup. Ct 1073, 32 L. Ed. 150. See "Commerce," Dec. Dig. (Key No.) § 27; Cent. Dig. § 25. 230' THE POWERS OF CONGRESS. . (Ch. 8 ably the automatic coupler; ^^^ making a common carrier receiving property for interstate transportation liable for all loss or damage to such property whether it occurred on its own line or on a connecting line;^='^ prohibiting and punishing "rebating" or the procuring of freight transportation at less than the carrier's published schedule of rates; ^^^ regulating the hours of labor for employes of common car- riers engaged in interstate business ; ^^ and the employers' liability act of 1906, making common carriers liable to their employes for in- juries or damage sustained in consequence of the negligence of any of the officers, agents, or employes of the carrier, which in effect abolishes the "fellow servant" rule and radically modifies the common-law doc- trine of contributory negligence. This last statute, after much dis- cussion and difference of opinion among the lower federal courts,^^* was sustained by the United States supreme court in so far as it re- lated to the relations between employers and employes engaged in interstate commerce, but held void because it assumed to regulate pure- ly intrastate commerce as well.^^^ It is held that there is no such con- nection between interstate commerce and membership in a labor organ- ization as to justify congress in enacting a law to protect members of I I 120 United States v. Southern R. Oo. (D. C.) 161 Fed. 347; United States v. Atlantic Coast Line R. Co. (D. C.) 153 Fed. 918 ; United States v. Great North- ern R. Co. (D. C.) 145 Fed. 438 ; Mobile, J. & K. C. R. Co. v. Bromberg, 141 Ala. 258, 37 South. 395 ; Kansas City, M. & B. R. Co. v. Flippo, 138 Ala. 487, 35 South. 457 ; United States v. Erie R. Co. (D. O.) 166 Fed. 352. See "Com- merce," Dec. Dig. (Key No.) § S7; Cent. Dig. § 25. 121 Smeltzer v. St. Louis & S. F. R. Co. (C. C.) 158 Fed. 649. See "Com- merce,'" Dec. Dig. (Key No.) § 5; "Constitutional Law," Dec. Dig. (Key No.) %89. 122 New York Cent. & H. R. R. Co. v. United States, 212 U. S. 481, 29 Sup. Ct. 304,^ 53 L. Ed. 613 ; Armour Packing Oo. v. United States, 209 U. S. 56, 28 Sup. Ct. 428, 52 L. Ed. 681 ; United States v. Standard Oil Co. of Indiana and the fact that the patentee may be a njember of a combination which is unlawful under the statute does not give any third person the right to infringe his patent or prevent him from suing to enjoin the infringement.^" By analogy, the owner of a proprietary medicine, made under a secret formula but not patented, may sell or withhold from sale as he pleases, fixing the prices and, naming his terms and refusing to sell to those who will not comply, and so far as this is confined to his own goods and pursued by independent and individual action, it is within his rights; but when two or more combine and agree that neither will sell to any one who cuts the prices of the others, this concerted policy is a direct interference with and restraint upon the freedom of trade, and comes within the federal statute when it affects interstate com- merce.^''' Contracts which were in unreasonable restraint of trade at common law were not unlawful in the sense of being criminal or as giving rise to an action for damages to one prejudiced, but were simply void and not enforceable. But the anti-trust act of congress renders such con- tracts, as applied to interstate commerce, unlawful in an affirmative or positive sense, and punishable as a misdemeanor, and also creates a right of civil action for damages in favor of persons injured thereby, and a remedy by injunction in favor of the public against the ex- ecution of such contracts and the maintenance of such trade re- straints.^'* As to criminal prosecutions, it is held that all who aid in 176 E. Bement & Sons v. National Harrow Co., 186 U. S. 70, 22 Sup. Ct. 747, 46 L. Ed. 1058; Rubber Tire Wheel Co. v. Milwaukee Rubber Works Co., 154 Fed. 358, 83 C. O. A. 336 ; Indiana Mfg. Co. v. J. I. Case Threshing Mach. Co., 154 Fed. 365, 83 C. C. A. 343 ; John D. Park & Sons Cto. v. Hart- man, 153 Fed. 24, 82 O. C. A. 158, 12 L. R. A. (N. S.) 135. See "Monopolies," Dec. Big. (Key No.) §§ 11-20; Cent. Dig. §§' 10-U; "Patents," Dec. Dig. (Key No.) §§ 1, 216; Cent. Dig. §§ 1, U, 41, 54, 329. 17 6 General Electric Co. v. Wise (C. C.) 119 Fed. 922. See "Monopolies," Dec. Dig. (Key No.) § 21; Cent. Dig. § 15. 177 Jayne v. Loder, 149 Fed. 21, 78 C. C. A. 653, 7 L. R. A. (N. S.) 984; John D. Park & Sons Co. v. Hartman, 153 Fed. 24, 82 O. C. A. 158, 12 T.. R. A. (N. S.) 135 ; Dr. Miles Medical Co. v. Jaynes Drug Co. (C. O.) 149 Fed. 838 ; Dr. Miles Medical O). v. John D. Park & Sons Co., 164 Fed. 803, 90 C. C. A. 579. See "Monopolies," Dec. Dig. (Key No.) §§ 11-20; Cent. Dig. §§ lO-U; "Patents," Dec. Dig. (Key No.) § 216; Cent. Dig. § 329. 178 United States v. Addyston Pipe & Steel Co., 85 Fed. 271, 29 C. O. A. 141, 46 L. R. A. 122. Bee "Monopolies," Dec. Dig. (Key No.) §§ 11-20; Cent. Dig. '§§ 10-U. § 105) ENUMERATED POWERS OF CONGRESS. 243 the commission of the unlawful acts may be charged as principals, and under this rule a corporation and its officers may be joined as defendants.^''* The remedy by injunction is not available to a pri- vate person, but only to the United States, acting by a district attorney on the authority of the attorney general,^'" but in such proceedings the courts have power to dissolve the alleged illegal combination and en- join the parties from forming or continuing similar agreements.^** It is the proper practice to make all the conspirators or parties to the illegal agreement, both resident and nonresident, parties defendant to the bill.**" The law also provides for the seizure and forfeiture to the United States of goods in course of transportation pursuant to such an illegal combination or trust agreement, the proceedings to be similar to those in cases of property smuggled into the United States.*** Further, an action for damages may be brought by any person who is injured in his business or property by any violation of the statute by any persons or corporations, and he may recover treble damages.*** Such a suit may be brought by a municipal corporation which has sustained injury in its business undertakings.** ° Every member of the illegal combination, trust, or pool is liable for the dam- 179 United States v. MacAndrews & Forbes Co. (C. C.) 149 Fed. 823. See "Monopolies," Dec. Dig. {Key No.) § 31. 180 Southern Indiana Exp. Co. v. United States Exp. Co., 92 Fed. 1022, 35 C. C. A. 172; Gulf, C. & S. F. Ry. Co. v. Miami S. S. Co., 86 Fed. 407, 30 C. C A. 142; National Pireproofing Co. v. Mason Builders' Ass'n, 169 Fed. 259, 94 O. C. A. 535 ; Post v. Southern Ry. Co., 103 Tenn. 184, .52 S. W. 301, 55 L. R, A. 481. See "Monopolies," Dec. Dig. (Key Hfo.) § Z4; Gent. Dig. § J7. 181 United States v. Trans-Missouri Freight Ass'n, 166 U. S. 290, 17 Sup. Ct. 540, 41 L. Ed. 1007. See "Monopolies," Dec. Dig. (Key No.) § 24; Cent. Dig. § 17. 18J United States v. Standard Oil Co. of New Jersey (C. O.) 152 Fed. 290. See "Monopolies," Dec. Dig. (Key No.) § 24; Cent. Dig. § 17. 188 United States v. Addyston Pipe & Steel Co., 85 Fed. 271, 29 C. O. A. 141, 46 L. R. A. 122. See "Monopolies," Dec. Dig. (Key No.) § 27. 184 Wheeler-Stenzel Co. v. National Window-Glass Jobbers' Ass'n, 152 Fed. 864, 81 C. C. A. 658, 10 L. R. A. (N. S.) 972 ; Rice v. Standard Oil Co. (C. O.) 134 Fed. 464 ; People's Tobacco Co. v. American Tobacco Co., 170 Fed. 396, 95 C. C. A. 566. But the law does not authorize an action against an alleged trust corporation by one who was a party to Its organization and a stock- holder therein.. Bishop r. American Preservers Co. (C. C.) 105 Fed. 845. See "Monopolies," Dec. Dig. (Key No.) § 28; Cent. Dig. § IS. 185 Chattanooga Foundry & Pipe Works v. Atlanta, 203 U. S. 390, 27 Sup. Ot. 65, 51 L. Ed. 241 ; s. c. below. City of Atlanta v. Chattanooga Foundry & Pipe Works, 127 Fed. 23, 61 C. C. A. 387, 64 L. R. A. 721. See "Monopolies," Dec. Dig. (Key No.) § 28; Cent. Dig. § 18. 244 THE POWERS OF CONGRESS. (Ch. 8 ages accruing to the person injured.^" But fraud and illegality are never presumed, and the plaintiff must assume the burden of proving the combination, conspiracy, or illegal contract,^^^ as also the burden of pleading and proving some real and actual damage to his business or property."* This action is not within the five-years limitation of Rev. St. § lOir (U. S. Comp. St. 1901, p. 737), relating to actions for ■"penalties or forfeitures," but is governed by the statute of limitation of the state where the suit is brought.^^" Finally, when a person is sued on a contract, he may plead in defense that the contract was in violation of the statute, and thereby defeat a recovery.^'" But the law does not prevent a recovery for the breach of a collateral contract re- lating to the manufacture or sale of goods. ^°'' Same — Commercial Law. This clause of the constitution cannot be so broadly interpreted as to give congress the power to enact a general code of commercial 186 City of Atlanta v. Chattanooga Foundry & Pipe Works, 127 Fed. 23, 61 C. O. A. 387, 64 L. R. A. 721. See "Monopolies," Dec. Dig. (Key No.) §§ 21, 28; Cent. Dig. §§ 15, 18. 18 7 Loder v. Jayne (C. a) 142 Fed. 1010; United States v. Addyston Pipe & Steel Co. (C. O.) 78 Fed. 712. See "Monopolies," Deo. Dig. (Key No.) § 28; Cent. Dig. § 18. issLoder v. Jayne (C. C.) 142 Fed. 1010; Gibbs v. McNeeley (O. O.) 102 Fed. 594. Plaintiff may recover the difference between the price he has had to pay for the monopolized article and the reasonable price under natural competitive conditions. City of Atlanta v. Chattanooga Foundry & Pipe Works, 127 Fed. 23, 61 O. O. A. 387, 64 L. R. A. 721. And if he is compelled to con- duct his business at a greater cost, he may recover such additional cost. Lo- der V. Jayne (O. C.) 142 Fed. 1010. But if he is not deprived of his existing profits, trade, or commerce by the formation or action of an unlawful com- bination or monopoly, he cannot recover merely because he is prevented from embarking on a new enterprise by the threatening aspect of an already ex- isting monopoly or combination. American Banana Co. v. United Fruit Co. (O. C.) 160 Fed. 184. See "Monopolies," Dec. Dig. (Key No.) §' 28; Cent. Dig. % 18. 189 Chattanooga Foundry & Pipe Works v. Atlanta, 203 U. S. 890, 27 Sup. Ct. 65, 51 L. Ed. 241; s. c. below, City of Atlanta v. Chattanooga Foundry & Pipe Co. (O. C.) 101 Fed. 900. See "Monopolies," Deo. Dig. (Key No.) § 28. 190 E. Bement & Sons v. National Harrow Co., 186 U. S. 70, 22 Sup. Ct. 747, 46 L. Ed. 1058. See "Monopolies," Dec. Dig. (Key No.) §§ 11-20; Cent. Dig. §§ 10-U; "Contracts," Cent. Dig. § 551. 191 Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679; Hadley-Dean Plate Glass Co. v. Highland Glass Co., 143 Fed. 242, 74 O. C. A. 462. See "Monopolies," Dec. Dig. (Key No.) §§ 11-20; Cent. Dig. §§ lO-U; "Contracts," Cent. Dig. i 551. § 105) ENUMEEATED POWERS OF CONGRESS. 245 law which should be binding on the several states and their courts. Some incidents or branches of the law of merchants may come within the regulative power of the federal government under this provision, and the individual states are so far prohibited from regulating it that their acts must impose no restriction or hindrance upon foreign or interstate commerce. Also, the courts of the United States do not consider themselves bound by the decisions of the state courts on questions of general commercial law, but will be guided by their own conception of the doctrines of the mercantile law.^*" To this extent, therefore, there may be said to be a general commercial law of the United States, but its origin is not derived from the power of con- gress to regulate commerce. Same — Limitations on the Power. The power of congress to regulate foreign and interstate commerce is subject to two restrictions or limitations, prescribed in the same in- strument by which the authority is granted. In the first place, the constitution provides that no tax or duty shall be laid on articles ex- ported from any state. And secondly, it is provided that "no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to or from one state be obliged to enter, clear, or pay duties in another." ^°* State Interference with Commerce Power. The power of congress to regulate foreign and interstate commerce involves a corresponding limitation upon the power of the states. That is, it is not within the lawful power of a state to regulate such commerce, or to impose restrictions or conditions upon it, or to inter- fere with it in any manner which would be inconsistent with the para- mount control of congress or with the specific acts or the general policy of congress in regard thereto.^®* Thus a state law which imposes limitations upon the powers of a corporation, created under the laws of another state, to make contracts within the state for carrying on 182 Gates V. First Nat. Bank, 100 U. S. 239, 25 L. Ed. 580. And see West- ern Union Tel. Ck). v. Call Pub. Co., 181 U. S. 92, 21 Sup. Ot. 561, 43 L. Ed. 765. See "Courts," Dec. Dig. {Key No.) | 372; Cent. Dig. § 979. 103 Const TJ. S. art 1, § 9. See Armour Packing Co. v. United States, 209 U. S. 56, 28 Sup. Ct. 428, 52 L. Ed. 681. See "Commerce," Dec. Dig. (Kev No.) §§ 2-10, SI, 71-1/8; Cent. Dig. §§ 3-6, 8, 19, 57, 58, 71, 75. 184 Louisville & N. R. Co. v. Eubank, 184 U. S. 27, 22 Sup. Ct 277, 46 L. Ed. 416; United States v. Northern Securities Co. (O. C.) 120 Eed. 721. See "Commerce," Dec. Dig. (Key No.) i§ 1-U; Cent. Dig. iS 1-9, SO, 92. 246 THE POWERS OP CONGRESS. ~ (Ch. 8 commerce between the states, violates this clause of the constitu- tion.'^'' And so far as it may be necessary to protect the products of other countries and states from discrimination by reason of their for- eign origin, the power of the national government over commerce reaches the interior of every state in the Union.'"" Same — Taxation. A state tax which is distinctly laid on the commerce which comes under the regulation of congress is void, even though congress has refrained from legislating on the subject.'" No state therefore can impose taxes on the transportation of persons or goods by interstate railways or other lines of interstate travel, or upon the occupation or business of carrying on interstate commerce, or the ofSces or agencies of railways and other companies engaged in it, or upon the gross re- ceipts of such companies, when derived partly from the transportation 19B Cooper Mfg. Oo. v. Ferguson, 113 U. S. 727, 5 Sup. Ct. 739, 28 L. Ed. 1137; International Trust Co. v. A. Lesclien & Sons Eope Co., 41 Colo. 299, 92 Pac. 727; Hargraves Mills v. Harden, 25 Misc. Rep. 665, 56 N. Y. Supp. 937. State laws generally require foreign corporations, as a condition upon the privilege of doing business within the state, to file a copy of their ar- ticles of incorporation, designate a resident agent for the service of process, maintain a fixed office in the state, and so on. These laws are valid in so far as they affect business originating or transacted wholly within the state, but cannot operate as limitations or restrictions on transactions properly coming under the description of interstate commerce. For various illus- trations of this distinction, see Duncan v. State, 105 Ga. 457, 30 S. E. 755 ; . Fifth Av. Library Soc. v. Hastie, 155 Mich. 56, 118 N. W. 727 ; Davis & Rankin Bldg. & Mfg. Co. v. Calgle (Tenn. Ch. App.) 53 S. W. ^40; Com- monwealth V. Read Phosphate Co., 113 Ky. 32, 67 S. W. 45, 23 Ky. Law Rep. 2284; Associated Press v. Commonwealth, 22 Ky. Law Rep. 1229, 60 S. W. 295, 523 ; W. B. Mearshon & Co. v. Pottsvllle Lumber Co., 187 Pa. 12, 40 Atl. 1019. See "Commerce," Deo. Dig. (Key No.) §§ 1-U, i6; Cent. Dig. §§ 1-9, 30, 92, 100, US, 126. 196 Guy V. Baltimore, 100 U. S. 434, 25 L. Ed. 743; Lyag v. State of Mich- igan, 135 U. S. 161, 10 Sup. Ct. 725, 34 L. Ed. 150; Kehrer v. Stewart, 117 (Ja. 969, 44 S. E. 854 ; State v. Omaha & C. B. Ry. & Bridge Co., 113 Iowa, 30, 84 N. W. 983, 52 L. R. A. 315, 86 Am. St. Rep. 337; State v. Virginia- Carolina Chemical Cto., 71 S. C. 544, 51 S. E. 455. See Field v. Barber Asphalt Pav. Co., 194 U. S. 618, 24 Sup. Ct. 784, 48 L. Ed. 1142. See "Com- merce," Dec. Dig. [Key No.) §§ l-U, SI, 54; Cent. Dig. §§ 1-9, 24, SO, 11, 92, 100, 106, 108, HI, 134. i97McCulloch V. Maryland, 4 Wheat. 310, 425, 4 L. Ed. 579; Brown v. Maryland, 12 Wheat. 419, 437, 6 L. Ed. 678; Low v. Austin, 13 Wall. 29, 20 L. Ed. 517; Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 557, 7 Sup. Ct. 4, 30 L. Ed. 244; Robbins v. Shelby County Taxing Dist, 120 U. S. 489, 7 § 105) ENUMERATED POWERS OF CONGRESS. 247 of persons or property into, through, and out of the state.^*' But the fact that a railroad, a bridge, or a telegraph company is an agency or instrument of interstate commerce does not prevent the state from taxing so much of its property as is locally situated within its own limits; ^"^ and if the earnings or receipts of such a company can be classified with certainty, so as to separate that portion derived from interstate commerce from that portion which arises wholly from com- merce carried on within the limits of the state, the latter portion may lawfully be taxed.^"" And this apportionment may be made by taking as a basis the ratio between the total capital of the company and that portion of its capital which is employed within the state, dr the ratio between the total value of its property and the value of that portion used or employed within the state, or between its total mileage and its mileage within the state. ^"^ These principles apply not only to rail- Sup. Ot. 592, 30 L. Ed. 694 ; Riclimond & A. R. Co. v. R. A. Patterson Tobacco Co., 92 Va. 670, 24 S. E. 261, 41 L. R. A. 511. See "Commerce," Dec. Dig. (Key No.) §§ 10, 71-78; Cent. Dig. §§ S, 5^-70," 96, 123-136. 198 Norfolk & W. R. Co. v. Pennsylvania, 136 U. S. 114, 10 Sup. Ot. 958, 34 L. Ed. 394; McCall v. California, 136 U. S. 104, 10 Sup. Ct. 881, 34 L. Ed. 392 ; Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. 1380, 32 L. Ed. 311; Pbiladelphia & S. M. S. S. Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. Ct. 1118, 30 L. Ed. 1200 ; Fargo v. Michigan, 121 U. S. 230, 7 Sup. Ct. 857, 30 L. Ed. 888 ; State Freight Tax Oases, 15 Wall. 232, 21 L. Ed. 146 ; Piek V. Chicago & N. W. R. Co., 6 Biss. 177, Fed. Oas. No. 11,138 ; Clarke v. Phil- adelphia, W. & B. R. Co., 4 Houst. (Del.) 158; Galveston, H. & S. A. Ry. 0\ V. State (Tex. Civ. App. 1906) 93 S. W. 464. This last decision, concerning^' a tax on the gross receipts of railroads, appears to have been correct in prin- ciple, although it was reversed by the supreme court of Texas in State v. "^ Galveston, H. & S. A. Ry. Co., 100 Tex. 153, 97 S. W. 71. See "Commerce," Dec. Dig. (Key No.) §§ 71-78; Cent. Dig. §§ 5i-70, 96, 123-136. 198 Western Union Tel. Co. v. Missouri, 190 U. S. 412, 23 Sup. Ct. 730, 47 L. Ed. 1116; Pittsburgh, C, 0. & St. L. R. Co. v. Board of Public Works, 172 U. S. 32, 19 Sup. Ct. 90, 43 L. Ed. 354; Reinhart v. McDonald (O. O.) 76 Fed. 403 ; Southern Ry. Co. v. Mitchell, 139 Ala. 629, 37 South. 85 ; State V. Wiggins Ferry Co., 208 Mo. 622, 106 S.^ W. 1005. See St. Clair County v. Interstate Sand & Car Transfer Co., 192 U. S. 454, 24 Sup. Ct. 300, 48 L. Ed. 518. See "Commerce," Dec. Dig. (Key No.) §§ 71-78; Cent. Dig. §§ 54- 70, 96, 123-136. 200 Pacific Exp. Co. v. Seibert, 142 U. S. 339, 12 Sup. Ct. 250, 35 L. Ed. 1035 ; Lehigh Valley R. Co. v. Pennsylvania, 145 U. S. 192, 12 Sup. Ot. 806, 36 L. Ed. 672 ; Maine v. Grand Trunk R. Co., 142 U. S. 217, 12 Sup. Ct. 121, 35 L. Ed. 994. See "Commerce," Dec. Dig. (Key No.) §§ 71-78; Cent. Dig. §§ 54-70, 96, 123-136. 201 New York v. Roberts, 171 U. S. 658, 19 Sup. Ct. 58, 43 L. Ed. 323; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 11 Sup. Ct. 876, , 35 248 THE POWEKS OF CONGEESS. (Ch. 8 road companies, but also to the business of parlor-car or sleeping-car companies/"^ express companies,^"' and interstate telegraph com- panies.^"* Goods produced in one state and intended for exportation to another are liable to taxation as a part of the general mass of prop- erty of the state of their origin until actually started in course of trans- portation to the state of their destination or delivered to a carrier for that purpose.""^ And conversely, goods sent from one state to another cease to be in transit, and can be subjected to taxation, as soon as they reach their place of destination and are there offered for sale, provided they are taxed as other goods are and are not subjected to any extra burden or discrimination by reason of their foreign origin.""' For in general, a tax laid by a state law in such a manner as to discriminate unfavorably against goods which are the product or manufacture of another state is an unlawful regulation of commerce.^"^ But a state li. Ed. 613 ; Delaware Railroad Tax, 18 Wall. 206, 21 L. Ed. 888 ; St. Louis, I. M. & S. R. Co. V. Davis (C. C.) 132 Fed. 629; People v. Glynn, 125 App. Div. 328, 109 N. Y. Supp. 868. See "Commerce," Dec. Dig. (Key No.) §§ 7i- 78; Cent. Dig. §§ 54-70, 96, 12S-1S6. 202 Pullman's Palace Oar Co. v. Pennsylvania, 141 U. S. 18, 11 Sup. Ct. 878, 35 L. Ed. 613; Pickard v. Pullman Southern Car Co., 117 U. S. 34, 6 Sup. Ct 635, 29 L. Ed. 785. See "Commerce;' Dec. Dig. (Key No.) §§ 71-78; Cent. Dig. §§ 5^-70, 96, 123-136. aosweir v. Norman, 166 U. S. 171, 17 Sup. Ct. 527, 41 L. Ed. 960; Pacific Exp. Co. V. Seibert, 142 U. S. 339, 12 Sup. Ct. 250, 35 L. Ed. 1035 ; Hardee v. Brown (Fla.) 47 South. 834 ; City of Leavenworth v. Bwing, 80 Kan. 58, 101 Pac. 664. See "Commerce," Dec. Dig. (Key No.) §§ 71-78; Cent. Dig. §§ 5^-70, 96, 123-136. 2 04 Atlantic & P. Tel. Co. v. Philadelphia, 190 U. S. 160, 23 Sup. Ot. 817, 47 L. Ed. 995. See "Commerce," Dec. Dig. (Key No.) §§ 71-78; Cent. Dig. §§ 5^-70, 96, 123-136. 205 Diamond Match Co. v. Ontonagon, 188 U. S. 82, 23 Sup. Ot. 266, 47 L. Ed. 394 ; Coe v. Errol, 116 D. S. 517, 6 Sup. Ct. 475, 29 L. Ed. 715 ; Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. 1091, 29 L. Ed. 257. See Kelley r. Rhoads, 188 U. S. 1, 23 Sup. Ct. 259, 47 L. Ed. 359. See "Commerce," Deo. Dig. (Key No.) §§ 7jr-7S; Cent. Dig. §§ 54-70, 96, 123-136. ^j 206 Kehrer v. Stewart, 117 Ga. 969, 44 S. E. 854 (affirmed 197 U. S. 60, 25 Sup. Ct. 403, 49 L. Ed. 663) ; Chrystal v. Macon, 108 Ga. 27, 33 S. E. 810 ; Pittsburg & S. Coal Oo. v. Bates, 40 La. Ann. 226, 3 South. 642, 8 Am. St. Rep. 497. See "Commerce," Dec. Dig. (Key No.) §§ 71-78; Cent. Dig. §§ 54- 70, 96, 123-136. 20T I. M. Darnell & Son Co. v. Memphis, 208 U. S. 113, 28 Sup. Ot. 247, 52 L. Ed. 413; Woodruff v. Parham, 8 Wall. 123, 19 L. Ed. 382; Hinson v. Lott, 8 Wall. 148, 19 L. Ed. 387; Webber v. Virginia, 103 U. S. 334, 26 L. Ed. 565; Welton v. Missouri, 91 U. S. 275, 23 L. Ed. 347; Tierman v. Rinker, § 105) BNUMBEATBD POWERS OF CONGRESS. 24& tax on legacies or successions payable to aliens is not repugnant to the constitution, as such legacies are not "exports" and the tax has no relation to commerce.'"'^ Same — License Fees and Privilege Taxes. A state license tax on traveling salesmen or the agents of foreign manufacturers or dealers, which operates to the disadvantage of the latter, or tends to discriminate against the introduction and sale of the products of another state, is invalid.^"" At the same time, the state has the right to "tax trades, professions, and occupations, and where a resident citizen engages in general business subject to a particular tax, the fact that the business done chances to consist, for the time being, wholly or partially in negotiating sales between resident and non-resident merchants, of goods situated in another state, does not necessarily involve the taxation of interstate commerce." ^^° The line of distinction appears to be as follows: Where a resident agent of a foreign producer or dealer is employed to solicit orders from samples, for goods which he undertakes to deliver, but which are not in the state at the time, but are to be shipped into it from another state, the or- ders being transmitted to and filled by his principal, and the goods sent either direct to the customer or sent to the agent for distribution to customers in lots as received without breaking bulk, the business of the agent is interstate commerce and not taxable by the" state. ^^,^ 102 U. S. 123, 26 L. Ed. 103. See "Commerce," Dec. Dig. (Key No.) §§ 7J-78,- Cent. Dig. §§ 54-70, 96, 123-136. 20S Mager v. Grlma, 8 How. 490, 12 L. Ed. 1168. See "Commerce," Dee, Dig. (Key No.) §§ 71-78; Cent. Dig. §§ 54-70, 96, 123-136. 209 Walling V. Michigan, 116 U. S. 446, 6 Sup. Ct. 454, 29 L. Ed. 691; Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 649 ; Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. 1, 32 L. Ed. 368; Corson v. Maryland, 120 U. S. 502, 7 Sup. Ot. 655, 30 L. Ed. 699; Hurford v. State, 91 Tenn. 669, 20 S. W. 201; Commonwealth v. Myer, 92 Va. 809, 23 S. E. 915, 31 L. B. A. 379; Ames v. People, 25 Colo. 508, 55 Pac. 725; City of Buffalo v. Reavey, 37 App. Div. 228, 55 N. Y. Supp. 792; Glover v. State, 126 Ga. 594, 55 S. E. 592 ; Osborne v. State, 33 Fla. 162, 14 South. 588, 25 L. E. A. 120, 39 Am. St. Rep. 99; Menke v. State, 70 Neb. 669, 97 N. W. 1020; City of New Castle v. Cutler, 15 Pa. Super. Ct 612. See "Commerce," Dec. Dig. (Key No.} §f 63-70; Cent. Dig. §§ 100, 103-122. 210 Ficklen v. Shelby County Taxing Dlst, 145 U. S. 1, 12 Sup. Ot. 810, 36 li. Ed. 601. And see Kolb v. Boonton, 64 N. J. Law, 163, 44 Atl. 873 ; Texas Co. V. Stephens, 100 Tex. 628, 103 S. W. 481 ; State v. Bayer, 34 Utah, 257, 97 Pac. 129, 19 L. R. A. (N. S.) 297. See "Commerce," Dec. Dig. (Key No.) §! 63-78; Cent. Dig. 8S 5^-70, 96, 100, 103-136. aiiRearick v. Pennsylvania, 203 U. S. 507, 27 Sup. Ot 159, 51 L. Ed. 295; 250 THE POWERS OF CONGRESS. (Ch. 8 But where the agent receives consignments of goods from his princi- pal, not packed or marlsed for individual customers but intended for him to keep in stock or to store in a warehouse, and he fills orders from such stock of goods, the goods become a part of the general mass of property in the state before deUvery to customers and are therefore taxable by the state without liability to objection on the ground of an interference with interstate commerce.^^'' Same — Police Power. The power of the national government to regulate foreign and in- terstate commerce and the power of the individual states to enact regu- lations for their internal police are co-ordinate powers. Both are nec- essary and must be preserved entire, but neither canbe so exercised as materially to affect or encroach upon the other. State laws, not pri- marily aimed at commerce, but intended as legitimate exertions of the authority of the state to provide for the public safety, health, and morals are not invalid because they may remotely or incidentally im- pose restrictions on interstate commerce.^ ^* Such are state statutes Caldwell v. North Carolina, 187 U. S. 622, 23 Sup. Ct. 229, 47 L. Ed. 336; Stockard v. Morgan, 185 U. S. 27, 22 Sup. Ot. 576, 46 L. Ed. 785; In re Tlnsman (C. C.) 95 Fed. 648 ; Arnold v. Yanders, 56 Ohio St' 417, 47 N. E. 50, 60 Am. St. Rep. 753 ; City of Laurens v. Elmore, 55 S. O. 477, 33 S. E. 560, 45 L. B. A. 249 ; Pegues v. Ray, 50 La. Ann. 574, 23 South. 904 ; Kins- ley V. Dyerly, 79 Kan. 1, 98 Pac. 228, 19 L. R. A. (N. S.) 405 ; In re Pringle, 67 Kan. 364, 72 Pac. 864 ; State v. Glasby, 50 Wash. 598, 97 Pac. 734, 21 L. R. A. (N. S.) 797; State v. Bayer, 34 Utah, 257, 97 Pac. 129, 19 L. R. A. obsoii, 4 Fish. Ps^t. Cas. 232, Fed. Cas. No. 7,519 ; Evans v. Jordan, 1 Brock. 248, Fed. Cas. No. 4,564. See "Patents," Dec. Dig. (Key No.) |§ IS; Gent. Dig. ^It 1-3, U, U, 54. 288 May V. Buchanan County (C. C.) 29 Fed. 469. See "Courts," Dec. Dig. (Key No.) §§ 359, 375; Cent. Dig. §§ 9S9, 983; "Patents," Dec. Dig. {Key No.) §§ 220-S25; Cent. Dig. §§ 350-356. 289 Webber v. Virginia, 103 U. S. 344, 26 L. Ed. 565i See "Commerce," Dec. Dig. (Key No.) §§ 64, 66; Cent. Dig. §§ 106, HI. 200 Patterson v. Kentucky, 97 U. S. 501, 24 L. Ed. 1115; In re Brosnahan (C. C.) 18 Fed. 62 ; People v. Russell, 49 Mich. 617, 14 N. W. 568, 43 Am. Rep. 478. See "Patents," Dec. Dig. (Key No.) §§ 220-225; Cent. Dig. §§ 350-856. 291 James v. Campbell, 104 U. S. 356, 26 L. Ed. 786. See "United States," Dec. Dig. (Key No.) § 97; Cent. Dig. § 76; "Patents," Cent. Dig. § 266. 268 THE POWERS OB'' CONGRESS. (Ch. 8= ited to the use of trade marks in foreign and interstate commerce."* But congress has power to extend the benefit of the copyright law to. the author, inventor, designer, or proprietor of a photograph, so far as it is a representation of original intellectual conceptions."" Bstablishment of Courts. The power of congress to establish tribunals inferior to the supreme- court has already been fully considered in connection with the subject of federal jurisdiction. Reference should here be made to the chap- teij dealing with that topic. Definition and Punishment of Piracies. The propriety, and even necessity, of confiding to congress alone the power to define and punish piracies and felonies committed on the high seas is to be deduced from the fact that the general government (and not the individual states) is the power which has control of our foreign relations, and to which other nations must look for co-operation in enforcing the rules of international law, as well as for the redress- of injuries committed against that law. "Piracy is an assault upon vessels navigated on the high seas, committed animo furandi, wheth- er the robbery or forcible depredation be effected or not, and whether or not it be accompanied by murder or personal injury. If a ship- belonging to an independent nation, and not a professed buccaneer,, practices such conduct on the high seas, she is liable to the pains and penalties of piracy." ^°* Pirates may lawfully be captured on the ocean by the public or private ships of any nation, and this in time of peace as well as during a war ; for they are the common enemies of all mankind, and, as such, are liable to the extreme rights of war."°° But it should be noted that piracy according to the law of nations may mean one thing, and piracy according to the municipal law of a par- ticular country another thing. Any nation may declare that certain acts shall be piracies (as against her laws) which would not be so by international law. This power to enlarge the scope of this crime has been given by the constitution to congress, and congress has exercised 292 Trade-Mark Cases, 100 tS. S. 82, 25 L. Ed. 550 ; 21 Stat. 502 (U. S. Comp. St. 1901, p. 3401). See "Commerce," Dec. Dig. {Key No.) § 42; Cent. Dig. § 28. 29S Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 4 Sup. Ct. 279,. 28 L. Ed. 349. See "Copyrights," Dec. Dig. {Key No.) § 9; Cent. Dig. § 7. 284 1 phillim. Int. Law, 379. "Piracy is robbery or a forcible depredation on the high seas, committed without lawful authority, and done animo furandi,. ■and in the spirit and intention of universal hostility." 1 Kent, Comm. 183. 29 5 The Marlanna Flora, 11 Wheat. 1, 6 L. Ed. 405. See "Piracy," Dec. Dig.. {Key No.) § Ij Cent. Dig. § 1. ;§ 105) ENUMERATED POWERS OF CONGRESS. 269 the power. It has not only made piracy according to the law of na- tions a crime against the United States, but has also included in the crime of piracy several things which would not be included by in- ternational law. The acts of congress declare, in the first place, that "every person who, on the high seas, commits the crime of piracy as ■defined by the law of nations, and is afterwards brought into or found within the United States, shall suffer death." Then follows a more particular description of numerous acts which are to be deemed piracy, such as robbery on the high seas, or on shore by the crew of a piratical vessel, murder on the high seas, any act of hostility against the United States or against any citizen thereof under color of a commission from a foreign prince or state, and the slave trade.^°^ The slave trade is not piracy by the law of nations.^"^ But as congress has the power not merely to punish piracy, but also to define it, it is entirely competent for congress to enact that the traffic in slaves shall be deemed piracy and punished accordingly, as many other nations have done. But the federal courts have no jurisdiction of a murder committed by one for- •eigner on another foreigner, both being on board a foreign vessel.^"' The term "high seas," as here used, means tide waters, below low water mark, which are without the territorial limits of the country, ex- cluding those portions of the sea which lie infra fauces terrae, such as tidal rivers, bays, basins, harbors, roadsteads, and the like.^°° This clause of the constitution also gives congress power to define and punish offenses against the law of nations. Illustrations of the ■exercise of this power are to be found in the "neutrality laws," which forbid the fitting out and equipping of armed vessels, or the enlisting of troops, for either of two belligerent powers with which the United States is at peace; and again, in the laws which prohibit the organ- izing within the country of • armed expeditions against friendly na- tions.^"" War Powers — Power to Declare War. The constitution confers upon congress the power to "declare war." This is the formal method of inaugurating hostilities against a for- 296 Eev. St. U. S. §§ 5368-5382 (U. S. Comp. St. 1901, pp. 3642-3647). 29 7 The Le Louis, 2 Dod. 210; The Antelope, 10 Wheat. 66, 6 L. Ed. 268. See "Slaves," Dec. Dig. {Key No.) § 2; Cent. Dig. § 5. 288 U. S. V. Furlong, 5 Wheat. 184, 5 L. Ed. 64. See "Criminal Law" Deo. Dig. {Key No.) § 97; Cent. Dig. § 183. 2 99 U. S. V. Grush, 5 Mason, 290, Fed. Cas. No. 15,268; U. S. v. Boss, 1 Gall. 624, Fed. Cas. No. 16,196. See "Criminal Law," Dec. Dig. {Key No.) § 97; Cent. Dig. § 184. »oo Pom. Const. I/aw, § 423. 270 THE POWERS OF CONGRESS. (Ch. 8 eign nation. But a war may be commenced, prosecuted, and termi- nated without any actual declaration of war by either of the bellig- erents.^"^ And therefore congress also has the authority, instead of formally declaring war, to recognize the existence of actual hostilities and declare that a war in fact exists. The power to declare war nec- essarily includes the authority to prosecute the war, and make it ef- fective, by all and any means, and in every manner, known to and ex- ercised by any independent nation under the rules and laws of war as the same are ascertained by the principles of international law. 'For instance, the property of aliens found in the United States, at the com- mencement of hostilities with a foreign power, may be condemned as enemies' property and confiscated ; but not without a legislative act au- thorizing its confiscation, and an act of congress declaring war is not such an act.^'"' Contracts entered into during the late war between parties, the one residing within the military lines of the United States- and the other within the Confederate lines of military occupation, are absolutely void, and no action could be maintained to enforce them.^°* Same — Army and Navy. The constitution provides that congress shall have power to "raise and support armies, but no appropriation of money to that use shall be for a longer term than two years," and also to "provide and main- tain a navy." This clause of the constitution was bitterly opposed in the states before the adoption of the instrument. This opposition sprang from the jealousies of the states and from the extreme ap- prehension lest the grant of such a power might be the means of putting the whole country under a military domination or the rule of a standing army, and so imperiling or destroying the rights and securities of private persons. The influence of these fears is seen in the peculiar way in which the war powers were limited and dis- tributed in the constitution as it stands. The President is the com- 301 The Eliza Ann, 1 Dod. 244. A state of actual war may exist without any formal declaration of it by either party ; and this is true of hoth a civil and a foreign war. Prize Cases, 2 Black, 635, 17 L. Ed. 459. No formal dec- laration of war by congress, nor proclamation hy the President, is necessary to define and characterize an Indian war. It Is sufficient that hostilities exist and military operations are carried on. Marks v. U. S., 28 Ct. CI. 147. See- "War," Dec. Dig. (Key No.) §§ 1-9; Cent. Dig. §§ J-25. 302 Brown v. U. S., 8 Cranch, 110, 3 L. Ed. 504. See "War," Dec. Dig. (Key- No.), §§ 12, IS; Cent. Dig. §§ 42-56. 303 Noblom V. Milbome, 21 La. Ann. 641. See "War," Dec. Dig. (Key No.y § lOj Cent. Dig. §§ 26-56. § 105) ENUMERATED POWERS OF CONGRESS. 271 mander in chief. But congress is to raise and support the armies and appropriate what may be necessary for their maintenance. There can therefore be no danger that the executive might maintain a standing army of greater numbers or for a longer time than should seem to the people's representatives in congress to be consistent with the safety and good government of the country. But not even congress is wholly trusted in this respect. For no such appropriations shall be for a longer term than two years. It is therefore always in the power of the people themselves, at every change in the house of representatives, to dictate the policy of the government in regard to the army and its maintenance. Congress is invested with power to "raise" armies. The means or methods of so doing are not prescribed, and therefore the natural in- ference is that the federal authorities may resort to any and all means of raising troops which the exigencies of the particular occasion may seem to require, or to such general plans as shall seem to them to be sufficient and effective. Congress may undoubtedly provide for the voluntary enlistment of men into the regular army of the United States, prescribing their term of service and all other matters relating to the duties and engagement of the enlisted man.^"* If it shall seem neces- sary or proper, the same body may offer inducements, such as bounties or pensions, to enter the military service. In time of war, especially if it is of serious magnitude, the method of replenishing the ranks of the army by voluntary enlistments will generally be found insuffi- cient. In that event, congress, under the general power to raise armies, unlimited as we have said in respect to the means, may resort to conscription or a draft. This was done during the late civil war, and though the validity of the draft laws was sometimes questioned, it was never authoritatively denied.'"^ The power to raise armies also includes the right to detetmine the number of men who shall compose the army, and the method of their apportionment to the different arms of the service, and their organization into divisions, brigades, regi- ments, and companies. No limitation is found in the constitution as to 304 In re Grimley, 137 U. S. 147, 11 Sup. Ct. 54, 34 L. Ed. 636. See "Armv and Navy," Dec. Dig. {Key No.) §§ 1, 18; Cent. Dig. §§ 1, -iO-U- 30 5 The practice of impressing seafaring men for service in tlie English navy was recognized as permissible at common law, and was valid and legal pro- vided the persons impressed were proper objects of the law, and those em- ployed in the service were armed with a proper warrant. Rex v. Broadfoot, 18 How. St. Tr. 1323 ; Ex parte Fox, 5 Durn. & E. 276. No such practice is permissible in this country. See "Army and Navy," Dec. Dig. (Key No.) § 20/ Cent. Dig. §§ 51-61. 272 THE POWERS OF CONGRESS. (Ch. 8 either the number of the forces or the age or quaUfication of the men. This is left entirely to the wisdom and discretion of congress. The power to "support" the army is equally general in its terms. It authorizes the appropriation and expenditure of money by congress, not only for the pay, transportation, rations, and clothing of the troops,, but also for the purchase or manufacture of arms and ammunition, for the maintenance of a medical corps, for the construction and mainte- nance of forts, arsenals, barracks, and fortifications of all kinds, and for the establishment and maintenance of schools for the instruction and training of ofBcers or of those who are destined to become officers. It has also been thought to justify the construction of military roads, or the creation or purchase of facilities for the rapid mobilization and transportation of troops in case of need. Under this power also con- gress has created' and maintains the department of war, and that of the navy, with all their numerous retinue of officers and clerks, and their varied and important duties and functions. Same — Government of the Forces. The power of congress to "make rules for the government and regu- lation of the land and naval forces" gives it the authority to ordain and establish what is called military law, that is, a system of general orders and regulations for the organization, discipline, and government of the army and navy. This includes the power to define offenses against the military law and against the good order and government of the forces, and to provide for the trial of such offenses by courts- martiai; and to prescribe the punishments to be inflicted. Proceed- ings in such courts are not required to be commenced by indictment; for the fifth amendment excepts from its provisions "cases arising in the land and naval forces or in the militia when in actual service." Same — The Militia. Congress has power to "provide for calling forth the militia to ex- ecute the laws of the Union, suppress insurrections, and repel inva- sions." It may also "provide for organizing, arming, and disciplin- ing the militia, and for governing such part of them as may be em- ployed in the service of the United States, reserving to the States re- spectively the appointment of the officers and the authority of training the militia according to the discipline prescribed by congress." It will be perceived that there are no militia of the United States here pro- vided for, and that the militia of the states are left very much to the government and control of their respective states. Congress may in- deed call forth the militia, but only for specified purposes and under § 105) ENUMERATED POWERS OF CONGRESS. 273 certain conditions. They may be enrolled in the service of the United States, and so become subject to the general military law, but only for the purposes mentioned, and even then the appointment of the of- ficers is left to the states. Congress may provide for the organization and discipline of the militia. But if congress does not provide a gen- eral system for this purpose, it remains competent for the individual states to take such action in regard to the organization and governance of their militia as they shall deem best. And even when congress has prescribed a discipline, the authority of training the militia in accord- ance therewith remains in the states. The power over the militia thus reserved to the states is so complete that a state may, unless restrained by its own constitution, enact laws to prevent any body of men what- ever, other than the regular militia of the state and the military forces of the United States, from associating themselves together as a mili- tary company or organization, or drilling or parading with arms within the state, unless with the governor's consent.'"® But when the militia force is actually employed in the service of the United States, it is subject to the control of congress in all particulars the same as the regular army. Thus the officers, though appointed by the states, are subject, in this case, not only to the orders of the President as com- mander in chief, but also to those of any officer outranking their own who may, under the authority of the President, be placed over them. Congress may provide for calling forth the militia. And this is held to give congress the power to confer the power of calling them forth, under certain circumstances, on the President, as was done by the act of 1795, which is still in force.'" The militia cannot be called forth to do service out of the limits of the United States. For the laws of the Union can be executed only on its own soil, and there can be no in- vasion or insurrection beyond those limits. But it is now agreed that S06 Presser v. Illinois, 116 U. S. 252, 6 Sup. Ct. 580, 29 L. Ed. 615. See "Mili- tia," Dec. Dig. (Key No.) §§ 1, 2; Cent. Dig. §§ 1, 2. 307 Martin v. Mott, 12 Wheat. 19, 6 L. Ed. 53T ; In re Griner, 16 Wis. 423. These doctrines were not always admitted by the states. Thus, in 8 Mass. 548, we find an opinion of the supreme court of that state to the effect that the commanders in chief of the militia of the several states have the right to determine whether any of the exigencies contemplated by the federal con- stitution exist, so as to require them to place the militia or any part of them in the service of the United States at the request of the President, to be commanded by him pursuant to the acts of congress ; and that, when such exi- gency exists, the militia so employed cannot be commanded by any other offi- cers than their own, save only the President. See "Army and Navy," Dec. Dig. {Key No.) § 20; Cent. Dig. § 52. BL.00NST.Ii.(3D.ED.)— 18 27^ THE POWEES OF CONGRESS. (Ch. 8 there is nothing to prevent the militia, when duly called forth on a proper occasion, from being sent outside of their own states in the service of the general government. A state may lawfully provide that persons belonging to the militia and called forth under the authority of the United States, who neglect or refuse to obey the call, shall be tried by a state court-martial and punished according to state laws."^ Same — Letters of Marque. A letter of marque is a commission given to a private ship by a government to make reprisals on the ships of another government. The power to grant letters of marque is incidental and implied in the power to declare war. But it is also sometimes resorted to, not as a measure of hostility, but rather as a peace measure, and is intended to prevent the necessity of other or more extreme acts of hostility. It was therefore properly specified as one of the enumerated powers of congress, instead of being left to be inferred from the more general grant of authority to declare war. In 1857, at the close of the Crimean war, the congress of plenipotentiaries from the powers which had been engaged in the conflict issued what was called the "Declaration of Par- is," prescribing certain rules as to the conduct of war and the protec- tion of neutrals and their property. The first article of this declara- tion is : "Privateering is and remains abolished." To this declaration most of the great European powers have subscribed, accepting its terms as a part of the international law by which they are to be gov- erned. But the United States has never given its adherence. And it is a serious question whether it would be within the power of congress, or of the President and senate by treaty, to accede to this declaration. For that would amount to a deliberate surrender of a portion of the power confided to congress by the constitution. Whether it could be placed forever in abeyance, so that no future congress could exercise the right to commission privateers, without an amendment to the con- stitution, is at least very doubtful. Government of Ceded Districts. Soon after the formation of the federal government, the cession of territory, to constitute the seat of government, contemplated by this clause of the constitution, was made by the states of Maryland and" Virginia. The tract thus acquired by the national government was at first called the "Territory of Columbia," but afterwards received the 308 Houston v. Moore, 5 Wheat. 1,' 5 L. Ed, 19. See "Arnvu and Navy," Deo. Dig. (Key No.) § US Cent. Dig. § 91. § 105) ENUMERATED POWERS OF CONGRESS. 275 name which it now "bears, "The District of Columbia." The portion granted by Virginia was afterwards retroceded to that state by the United States, so that the District, as at present constituted, lies wholly within the exterior boundaries of the original state of Maryland. For some time the District was under a territorial form of government, but this was afterwards abolished, and it is now only a municipal corpora- tion.^"* "The local laws of the two states making the cession, exist- ing at that time, were held to remain in force in so far as they affected rights of property, and until they were changed by congress.'^" But congress has now covered almost the entire field of civil and criminal legislation, by statutes enacted expressly for the District, and but small traces of the original laws of Maryland now remain in force. Since the constitution invests congress with the exclusive power of legislation for this District, evidently intending that it should act as the local legislature of the District, it has been very seriously questioned whether it was within its lawful power to delegate this authority by the creation of a territorial government, or whether it could ever again lawfully erect a law-making body for the District, at least to the ex- tent of granting to it general legislative authority.^^^ It will be per- ceived that, in respect to the District. of Columbia, congress is invested with a double measure of power. The District is a part of the United States, and consequently all acts of congress which it has the power to ordain, as legislating for the United States, have force, so far as they are applicable, in the District. But the power of exclusive legis- lation over this territory also invests the national legislature with all the authority to make local rules and regulations which is possessed by the legislature of a state in respect to its own citizens. It must not be supposed, however, that in dealing with the District, congress is restricted in the same manner as the legislature of a state. For ex- ample, the power of "exclusive legislation" includes the power to tax. But it is not to be supposed that congress, in laying taxes in the Dis- trict of Columbia, is territorially restricted as is the legislature of a state. That is, to justify such taxation, it is not required to be for dis- 809 Metropolitan R. Co. v. District of Columbia, 132 U. S. 1, 10 Sup. Ct. 19, 33 L. Ed. 231. See "District of CoUimUa," Dec. Dig. (Key Wo.) § 2; Cent. Dig. § 3. 310 Thaw V. Ritchie, 136 U. S. 519, 10 Sup. Ot. 1037, 34 L. Ed. 531. See "Dis- trict of ColumUa," Dec. Dig. (Key No.) §§ 1, 5j Cent. Dig. §§ 1, 5; "Guardian wnd Ward," Dec. Dig. (Key No.) § 81; Cent. Dig. § 335. 311 Roach v. Van Riswick, McArthur & Mackey (D. C.) 171. See "District of Columbia," Dec. Dig. (Key No.) § S; Cent. Dig. § 3, 276 THE POWBES OF CONGRESS. (Ch. 8 trict purposes only, but may be for any or all of the purposes for which congress may lawfully exercise the power of taxation. In other words, the general power of congress to lay and collect taxes extends to all places over which the government of the United States extends, and to the District of Columbia and all the territories, as well as to the organized states, and consequently direct taxes may be appor- tioned among the territories and the District, as well as among the several states.'" And as the United States possesses not only polit- ical, but also municipal, authority over the District, it has the right to condemn lands lying within the District for a public park.'^' After the cession of territory by a state to the United States, the municipal laws of the state governing property and property rights continue in force in the ceded territory, except so far as they may conflict with the laws and regulations of the United States applicable thereto ; but the criminal laws of the state cease to be of force within the ceded district. "After a state has parted with its political juris- diction over a given tract of land, it cannot be said that acts done thereon are against the peace and dignity of the state, or are viola- tions of its laws ; and the state certainly cannot claim jurisdiction crim- inally by reason of acts done at places beyond, or not within, its ter- ritorial jurisdiction, unless by treaty or statute it may have retained ju- risdiction over its own citizens, and even then the jurisdiction is only over the person as a citizen." '^* But this provision of the constitu- tion does not apply to land ceded by a state, but not purchased by the United States. The state, in such case, while granting exclusive juris- diction, may reserve the right to tax private property within the dis- trict ceded."" S12 Loughborough v. Blake, 5 Wheat. 317, 5 L. Ed. 98. See, also, Cohen v. Virginia, 6 Wheat. 264, 424, 5 L. Ed. 257; 2 Story, Const. § 1226. See "Dis- trict of Columbia," Dec. Dig. (Key No.) §§ 3, 4, S3; Gent. Dig. §§ 3, k, 20. 313 Shoemaker v. U. S., 147 U. S. 282, 13 Sup. Ct. 361, 37 L. Ed. 170. See "District of ColumMa," Dec. Dig. (Key No.) § i; Cent. Dig. § i; "Eminent Do- main," Dec. Dig. (Key No.) § .5; Cent. Dig. § SI. 314 In re Ladd (G. 0.) 74 Fed. 31. And see United States v. San Francisco Bridge Co. (D. C.) 88 Fed. 891 ; McCarthy v. R. G. Packard Co., 182 N. Y. 555, 75 N. E. 1130 ; Madden v. Arnold, 162 N. Y. 638, 57 N. E. 1116 ; State v. Mack, 23 Nev. 359, 47 Pac. 763, 62 Am. St. Eep. 811. See "Criminal Law," Dec. Dig. (Key No.) § 97; Cent. Dig. § 189; "United States," Dec. Dig. (Key No.) § 3; Cent. Dig. § 3. 316 Where the United States acquires lands within the limits of a state by purchase, with the consent of the legislature, for the erection of forts, dock- yards, arsenals, etc., the constitution confers upon the general government § 105) ENUMERATED POWERS OP CONGRESS. 277 As to the limitations upon the power of congress in legislating for the District of Columbia and other ceded places, they must be sought alone in the constitution; there are no others. And these limitations, so far as concerns private and political rights, are found in the first eight and the last three amendments to the constitution. The provi- sions guarantying trial by jury, for instance, are applicable to the District and cannot be violated by congress. ^^° Acquisition of Territory. The power of congress to acquire new territory, either by conquest, purchase, or annexation, was much debated at the time of the ac- quisition of Louisiana from France, in 1803, and in a less degree in connection with the purchase of Florida and of Alaska. It has now come to be recognized and established, rather by precedent and the general acquiescence of the people, than by any strict constitutional justification. In fact, the power cannot be derived from any narrow or exclusive jurisdiction of the tract so acquired. But -when it acquires such lands in any other way than by purchase with the legislative consent, the ex- clusive jurisdiction of the United States is confined to the land and buildings used for the public purposes of the general government. A state may, for such purposes, cede to the United States exclusive jurisdiction over a tract of land within its limits in a manner not provided for in the constitution, and it may prescribe conditions to the cession, if they are not inconsistent with the effec- tive use of the property for the purposes intended. And if a state thus ced- ing to the Uinted States exclusive jurisdiction over a tract within its limits, reserves to itself the right to tax private property therein, the acceptance of the grant, without dissent by the United States, will imply its consent to the reservation. Ft. I/eavenworth R. Oo. v. Lowe, 114 U. S. 525, 5 Sup. Ct 995, 29 L. Ed. 264 ; Chicago, R. I. & P. Ry. Co. v. McGlinn, 114 U. S. 542, 5 Sup. Ct. 1005, 29 li. Ed. 2Y0 ; Benson v. U. S., 146 U. S. 325, 13 Sup. Ct. 60, 36 L. Ed. 991 ; Palmer v. Barrett, 162 U. S. 399, 16 Sup. Ct. 837, 40 L. Ed. 1015 ; In re Kelly (C. C.) 71 Fed. 545 ; United States v. Holt (C. C.) 168 Fed. 141 ; Pundt v. Pendleton (D. C.) 167 Fed. 997; Western Union Tel. Oo. v. Chiles, 214 U. S. 274, 29 Sup. Ct. 613. 53 L. Ed. 994. See "United States," Dec. Dig. (Key No.) § 3; Cent. Dig. § 3. 318 Callan v. Wilson, 127 U. S. 540, 8 Sup. Ot. 1301, 32 L. Ed. 223. While the fourteenth amendment does not purport to extend to authority exercised by the United States, congress, in legislating for the District of Columbia, may not deny to its residents the equal protection of the laws; but all of the constitutional guaranties of life, liberty, and property are equally for the benefit of citizens of the United States residing permanently or temporarily in the District as for those residing in the several states. Lappin v. District of Columbia, 22 App. D. C. 68. See "Jury," Dec. Dig. (Key No.) § 11; Cent. Dig. i 21. 278 THE POWERS OF CONGRESS. (Ch. 8 technical interpretation of the constitution. But it is necessary to rec- ognize the fact that there is in this country a national sovereignty. That being conceded, it easily follows that the right to acquire terri- tory is incidental to this sovereignty. It is, in effect, a resulting pow- er, growing necessarily out of the aggregate of powers delegated to the national government by the constitution. And if a more positive jus- tification is needed, it may be said that whereas congress has power to make war, it has also the power to acquire territory by conquest ; and that since the President and senate possess the power to make treaties with foreign nations, this may be understood as including the right to deal, by treaty, with all the subjects which come within the scope of the negotiations of independent sovereignties.^^' Disposition of Public Lands. Over all the public lands of the United States congress exercises not merely jurisdiction, but also the rights of a proprietor. And un- der the grant of power to dispose of the territory of the United States, congress may dispose of the public lands as it may see fit. An elab- orate system for the survey and sale of the public lands has been de- vised, and an important bureau of the Department of the Interior is charged with the administration of the laws relating thereto. Congress has passed numerous acts for the disposition of the public domain to actual settlers and purchasers. And it has also, at different times, made extensive grants to railroads or other works of internal improvement on a large scale, as also to educational institutions, and in some cases to the various states. All such acts are unquestionably within the au- thority of congress, as it possesses the jus disponendi of these lands. ^^* Government of the Territories. The general and plenary control of congress over the territories arises not merely from the grant of power in the constitution to make SIT De Lima v. Bidwell, 182 U. S. 1, 21 Sup. Ct. 743, 45 L. Ed. 1041; Dorr V. United States, 195 U. S. 138, 24 Sup. Ct. 808, 49 L. Ed. 128; Goetze v. United States (C. O.) 103 Fed. 72; Jones v. United States, 187 U. S. 202, 11 Sup. Ot. 80, 34 L. Ed. 691 ; American Ins. Co. v. Canter, 1 Pet. 511, 542, 7 L. Ed. 242. See "Territories," Dec. Dig. {Key No.) §§ 4, 5; Cent. Dig. §§ 2, 3. 318 U. S. V. Gratiot, 14 Pet. 526, 10 L. Ed. 573; Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331. Tlie treaty-making power of the United States lias authority to dispose of the public domain (as by treaty with an Indian tribe) without the consent or ratification of congress. Utah Min. & Manuf'g Co. V. Dickert & Myers Sulphur Co., 6 Utah, 183, 21 Pac. 1002, 5 L. E. A. 259. See "Public Lands," Deo. Dig. (Key No.) § 7; Cent. Dig. § 7; "Indians," Dec. Dig. (Key No.) §§ S, 11; Cent. Dig. §§ 5-7, 26. § 105) ENUMERATED POWERS OF CONGRESS. 279 needful rules and regulations respecting them, but also from the right of the national government to acquire territory, flowing from its power to declare war and make treaties. And this plenary control extends to the acts of territorial legislatures.^^* Subject to the limitations ex- pressly or by implication imposed by the constitution,^^" congress has full and complete authority over a territory, and may directly legislate for the government thereof. It may declare a valid enactment of the territorial legislature void, or a void enactment valid, although it re- served in the organic act no such power.'^^ It may therefore be re- garded as definitely settled that the power of congress over the terri- tories will enable it either to make its own rules and regulations for their government, or to erect territorial forms of government, and in- vest them with such measure of legislative power as it may deem best. And this power is exclusive, and exempt from all interference or con- trol by the states.^^^ An act of congress provides that "the legislative power of every territory shall extend to all rightful subjects of legis- lation not inconsistent with the constitution and laws of the United States. But no law shall be passed interfering with the primary dis- posal of the soil; no tax shall be imposed upon the property of the United States ; nor shall the lands or other property of nonresidents be taxed higher than the lands or other property of residents." ^^* "A rightful subject of legislation," it is said, "is a subject which, from the nature of things, the course of experience, the practice and genius of S19 Late Corporation of Church of Jesus Christ v. U. S., 136 U. S. 1, 10 Sup. Ct. 792, 34 li. Ed. 481 ; U. S. v. Kagama, 118 U. S. 375, 6 Sup. Ct. 1109, 30 L. Ed. 228; American Ins. Co. v. 356 Bales of Cotton, 1 Pet 511, 7 L. Ed. 242. As to the right and authority of congress to construct the Panama Canal, see Wilson v. Shaw, 25 App. D. C. 510. See "Territories," Deo. Dig. (Key Wo.) § 11; Cent. Dig. § 8. 320 Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956. See "Terntories," Dec. Dig. (Key No.) § 11; Cent. Dig. § 8. 321 First Nat. Bank v. Yankton County, 101 U. S. 129, 25 L. Ed. 1046. "Ac- tion by congress in annulling territorial statutes is rare, and usually only takes place in cases where they are not void of themselves, but simply im- proper or inexpedient without being illegal per se. The usual way of declar- ing a territorial statute, which is inconsistent with the higher law of con- gress, inoperative, is through the courts, just as in the states similar enact- ments would be adjudged to be unconstitutional." In re Attorney General, 2 N. M. 49. See "Territories," Deo. Dig. {Key No.) § SO; Cent. Dig. § 18. 322 Snow V. U. S., 18 Wall. 317, 21 L. Ed. 784; Nelson v. United States (C. O.) 30 Fed. 112 ; The Panama, Deady, 27, Fed. Oas. No. 10,702. See "Ter- ritories," Deo. Dig. (Key No.) §§ 11, 18; Cent. Dig. §§ 8, U, 15. 828 Rer. St. U. S. § 1851. 280 THE POWERS OP CONGRESS. (Ch. 8 our government, properly belongs to the legislature to regulate and control, rather than to the judicial or executive departments of the government." =2* This grant of power to the territorial legislatures is sufficient to authorize them to levy and collect taxes, subject to the limitations above mentioned, to provide for the exercise of the power of eminent domain,'" ^^ p^gg j^^^g restricting and regulating the sale of articles deemed injurious to the health or morals of the communi- ty 326 Q^ ^ Jq^.^! option law,"" and to grant charters of incorpora- tion.'^' The organic act of a territory is equivalent to a constitution ; it can- not be modified or controlled by the legislature of the territory.'^* And an act of the territorial legislature in violation of the organic act is null and void, unless congress affirmatively approves it. Then it would become part of the constitution of the territory, provided it was not in conflict with the federal constitution.''" But "the terri- tories being mere dependencies of the United States, exercising dele- gated powers, and their governments being temporary agencies em- ployed by congress to aid in their government during the term of their pupilage, the capacity of their legislatures is regarded more rigorously by the courts, and their enactments construed less liberally^ than the laws made by a sovereign, and they will be held void with less hesita- tion when they are clearly unreasonable, oppressive, and unjust." '" The executive power of each territory is vested in a governor, who is appointed by the president, and holds his office for four years, unless sooner removed by the appointing power."^ 324 The Panama, Deady, 27, Fed. Cas. No. 10,702. See "Constitutional Law," Dec. Dig. (Key No.) § 50 j Cent. Dig. §§ 48, 49. 32 5 0ury V. Goodwin, 3 Ariz. 255, 26 Pac. 376. See "Taxation," Dec. Dig. (Key No.) § 19; Cent. Dig. §§ 48-50. 826 Territory v. Guyott, 9 Mont. 46, 22 Pac. 134. See "Indians," Dec. Dig. (Key No.) § 34; Cent. Dig. § 60. 327 Territory v. O'Connor, 5 Dak. 397, 41 N. W. 746, 3 U K. A. 355. See "Territories," Dec. Dig. (Key No.) § 20; Cent. Dig. § 11; "Intoxicating Liq- uors," Cent. Dig. § 6. 32 8 Rogers V. Burlington, 3 Wall. 654, 18 L. Ed. 79. See "Corporations," Dec. Dig. (Key No.) § //; Cent. Dig. § 11; "Territories," Cent. Dig. § 17. 329 Hill V. Territory, 2 Wash. T. 147, 7 Pac. 63. See "Territories," Deo. Dig. (Key No.) § 20; Cent. Dig. § n. 330 Godbe v. City of Salt Lake, 1 Utah, 68. See "Territories," Dec. Dig. (Key No.) § 20; Cent. Dig. § 17. S31 People V. Daniels, 6 Utah, 288, 22 Pac. 159, 5 L. R. A. 444. See "Ter- ritories," Dec. Dig. (Key No.) § 20; Cent. Dig. § 17. »8!« Eev. St. U. S. i 1841. § 105) ENUMERATED POWERS OF CONGRESS. 281 According to the law of nations, rights of property are protected, . even in the case of a conquered country, and are held sacred and in- violable when it is ceded by treaty, with or without any stipulation to that effect ; and the laws, whether written or evidenced by the usages and customs of the conquered or ceded country, continue in force un- til altered by the new sovereign.^^^ The government of the United States retains constitutional power to punish, through its courts, a crime committed against it in one of the territories, although such- territory is admitted as a state pending the prosecution and before conviction. ^^* Same — The Northwest Territory. This was the name given to the great stretch of territory ceded to the United States by Great Britain at the close of the revolutionary war. Out of it were afterwards formed the five states of Ohio, In- diana, Illinois, Wisconsin, and Michigan. In 1787, before the adoption of the constitution of the United States, the congress of the confedera- tion framed an "Ordinance for the Government of the Northwest Territory," which is chiefly interesting to the student of constitutional law on account of the liberal provisions which it made for the secur- ity of civil, religious, and political liberty, and for the fact that it pro- hibited slavery and involuntary servitude, except as a punishment for crime, within the territory. This ordinance was not abrogated by the adoption of the federal constitution, but remained in force as the municipal law of the territory in so far as it was not inconsistent with the constitution.*^" Admission of Nezv States. The establishment of a state constitution by the people of a ter- ritory, which is to be admitted into the sisterhood of states, is reg- ularly accomplished in the following manner: First of all, it is for congress to decide whether the proposed new state shall be admitted. The people of a territory have no right, under any circumstances, to demand admission into the Union, in any such sense that the authoriza- tion of congress can be dispensed with. The power to admit new 883 Strother v. Lucas, 12 Pet. 410, 9 L. Ed. 1137. See "Territories," Dec. Dig. (Key No.) § 9; Cent. Dig. § 6; "War," Dec. Dig. (Key No.) §§ 12, 21, 22j Cent. Dig. §§ i2, 1,3, 105-108. 884 U. S. V. Baum (C. C.) 74 Fed. 43. See "Courts;' Dec. Dig. (Key No.} § m; Cent. Dig. §i 1145, 1146. 330 Spooner v. McConnell, 1 McLean, 337, Fed. Cas. No. 13,245. See "Ter- ritories," Dec. Dig. (Key No.) § 1; Cent. Dig. f 1. 282 THE POWERS OF C0NGEES8. (Ch. 8 states is vested in congress exclusively. And the people of a territory cannot force their way into the Union by framing and adopting a con- stitution, electing state officers, and assuming to act as a state. Not- withstanding such action, if they had not the authorization of congress, they would remain a territory and still subject as such to the super- vision of the national government. Congress, in its political capacity and as the general guardian of the nation, must then consider wheth- er it is expedient that the territory be admitted as a state. But when it is decided to admit the new state, a statute is passed for that purpose, called an enabling act. It describes the boundaries of the new state, provides that the people may appoint a constitutional convention, pre- scribing the qualifications of the members thereof and the manner of their election, as well as the qualifications of those who are to be given the right to vote for them, provides that the convention so chosen shall proceed to frame a constitution, which shall provide for a government republican in form and not be repugnant to any provision of the na- tional constitution, and which shall be adopted by the people, and then shall be submitted to congress for its approval, and enacts that upon such approval, the territory shall become and be a state of the Union. The enabling act may, and usually does, contain many other provisions, •either as to the principles or contents of the new constitution, or as to matters between the new state and the Union which are deemed best settled upon the admission of the state. But the foregoing elements are those which alone are essential to it.'''° When the constitution thus framed is laid before congress, it is for that body to consider whether it has been properly adopted, and whether it is in conformity to the 33 6 It Is entirely competent for congress, In giving its consent to the ad- mission of a new state, to impose conditions which shall be binding and ir- revocable. This may be done by requiring certain clauses to be inserted in the constitution of the new state, or by requiring its legislature to give a formal assent to the stipulations made by congress. These conditions could not be abrogated or evaded by the new state, as, by the adoption of a new or amended constitution, at least in so far as they formed a compact with the general government or were in accordance with the terms of the federal con- stitution. Brittle v. People, 2 Neb. 198. The following may be mentioned as examples of conditions thus imposed: A requirement that the new state shall renounce all jurisdiction and right of taxation over the lands of the United States within its borders ; that it shall cede certain territory to another state, or that a disputed boundary shall be settled in a particular way ; that slavery shall not be permitted; that no invidious laws shall ever be passed against certain classes or races of people. iSee "Constitutional Law," Deo. Dig. {Key No.) § 1; Cent. Dig. § 1. § 105) ENUMERATED POWERS OF CONGRESS. 283 national constitution, and whether it contains those guaranties of pri- vate, social, and political rights which are secured to the citizens of the United States. If these facts are found in its favor, it is approved and thereupon comes into operation and effect as the constitution of the new state. It will be noticed that while the constitution provides that new states may be admitted into the Union, it does not prescribe any rules as to the mode or manner of their admission. Consequently, this whole matter being within the control of congress, that body has the power not only to provide a method of establishing a new state, but also of •condoning any omission or irregularity in the manner in which its authorization or its directions are carried out. If the people of a ter- ritory, without waiting for an enabling act, should meet in convention and frame and adopt a constitution, and present it to congress, and claim admission as a state, it is true, as already stated, that congress would not be compelled to accept their petition. But congress could do so, and no question as to the legality of the admission of the state could thereafter be raised. So, if the provisions of an enabling act should be disregarded or irregularly carried out, it would unquestion- ably be within the power of congress to waive the irregularity. Again, it is proper for congress, in considering a constitution framed in any of these modes, to accept it conditionally, if it shall find sufficient rea- son for such a course. It is not to be supposed that the authority of congress, in this mat- ter, was limited to that domain which belonged to the United States at the adoption of the constitution, or that territory newly acquired may not be erected into a state or states if it shall seem good to congress, or that it is necessary first to give a territorial form of government. Texas, for example, was not a part of the original United States. It was an independent republic at the time of its annexation. But it is not to be doubted that its admission into the Union was in all respects conform- able to the constitution. The constitution also provides that no new state shall be formed or erected within the jurisdiction of any other state without the consent 'of the legislature of the state concerned.*'^ The case of West Virginia 837 After the admission of Louisiana Into the Union, congress could not take away any portion of that state in admitting Mississippi to the Union, and give it to the latter state. Louisiana v. Mississippi, 202 U. S. 1, 26 Sup. (Jt. 408, 50 L. Ed. 913. ,^60 "States," Dec. Dig. (Key No.) § 15; Cent. Dig. •S 15. 284 THE POWERS OF CONGRESS, (Ch. 8 constitutes an apparent violation of this rule. For it was formed out of the territory theretofore belonging to Virginia. But the doctrine on which this action was justified by the government was as follows : At that time the state of Virginia was in armed rebellion against the United States. Its government was insurrectionary. Its legislature, so far as concerned public acts, was unlawful. But the people occupy- ing a part of its territory remained loyal to the United States. These people, with the consent of congress, might and did maintain a govern- ment loyal to the United States and in full constitutional relations with the general government. It was in the power of congress to recognize this loyal government as the rightful government of the state of Vir- ginia. And such government could therefore give its consent to the erection of a new state, formed out of part of the territory of Virginia. The legislature of the new state, when established, could agree, by the consent of congress, with the government of the old state as to the terms and conditions of the partition. This doctrine has been accepted by the courts.^^' IMPLIED POWERS. 106. The constitution, after enumerating certain powers vested in congress, provides that congress shall have power to "make * all lavrs ivhich 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 Unit- ed States or in any department or officer thereof." This clause is the foundation of the doctrine of implied powers. To recite all the various occasions on which congress has availed itself of this grant of incidental powers would amount to making a transcript of the federal statutes. But a few illustrations may profit- ably be introduced, in order to exhibit the practical working of the power. Almost the entire criminal jurisprudence of the United States is derived from this power. For the punishment of offenses against the revenue, against the postal service, perjury, embezzlement, mal- feasance in office, and many other felonies or misdemeanors, is neces- sary to secure the due and effectual operation of the laws made by con- gress in the exercise of its enumerated powers. The money powers of the federal legislature are held to give it the right to issue bonds and establish a system of national banks. Its power to regulate commerce 338 Virginia v. West Virginia, 11 Wall. 39, 20 L. Ed. 67. iSee "States," Dec. Dig. (Key No.) §§ 6, 13; Cent. Dig. i§ 3, 12. § 106) IMPLIED POWERS. 285. invests it with authority to improve rivers and harbors, to maintain a coast survey, life-saving stations, and a naval observatory, to regu- late the liabilities of ocean carriers and the charges of railroads, and to protect commerce against unlawful restraints and monopolies and illegal combinations and trusts. Its power to lay and collect taxes furnishes the authority for the establishment and maintenance of the whole elaborate system for the collection of the customs duties and in- ternal revenue. Its authority to establish post-ofifices and post-roads includes the power to secure the passage of the mails from all obstruc- tions or interruptions, to punish offenses against the postal laws, and to exclude lottery advertisements and indecent matter from the mails, and to grant to telegraph companies a right of way over the public domain. Wherever congress advances to fill the sphere of legislative jurisdiction confided to it by the great grants of the c9nstitution, there advances with it the right and power to choose the means by which its laws shall be made effectual and which are appropriate to the ends it is designed to accomplish. ''° But it has been contended that the choice of means or instrumental- ities is not unrestricted. They must be "necessary" for carrying into execution the enumerated powers. The important word here, how- ever, is relative, not absolute. The necessity required is not an impera- tive necessity. The constitution does not mean that the power to be exercised must be the only power which could by any possibility be resorted to for carrying the design of congress into execution. There may, for instance, be two or more methods of accomplishing a given result. If the result must be accomplished, any one of these methods may properly be said to be necessary, although neither is absolutely necessary, since if one should fail the other would remain open and the result still be accomplished. The more liberal interpretation to be given to the word in this connection is shown by the use of the phrase "absolutely necessary" in that clause of the constitution which forbids the states to lay duties on imports or exports. This shows that the 339 As an additional illustration of this doctrine, we may mention the act of congress prohibiting federal officers from giving, soliciting, or receiving contributions for political purposes. This statute is not unconstitutional. "The evident purpose of congress in all this class of enactments has been to promote efficiency and Integrity in the discharge of official duties, and to maintain proper discipline in the public service. Clearly, such a pm-pose is within the just scope of legislative power." Ex parte Curtis, 106 TJ. S. 371, 1 Sup. Ot. 381, 27 h. Ed. 232. See, also. Opinion of the Justices, 138 Mass. 601. See "United States," Dec. Dig. {Key No.) § 52; Cent Dig. § 57. 286 THE POWERS OF CONGRESS. (Ch. 8 authors of the constitution were aware of the relative nature of the word "necessary," and did not intend to give it the most restrictive meaning in this part of the instrument. Moreover, it is here coupled with the word "proper." If the necessity intended were an absolute necessity, the addition of the word "proper" would be merely non- sensical. For imperativeness excludes all questions of propriety. But if we take the first word in a less restricted sense, the other may well be understood as requiring that the means chosen shall be actually ap- propriate to the ends in view. The result is that congress, is invested with authority to avail itself of such means or agencies for carrying into effect its enumerated powers as shall be requisite, essential, or conducive to the accomplishment of that result and bona fide appro- priate thereto. And of the existence of this kind of necessity, or of the conduciveness of the means to the end, congress is to judge in the first instance. Its decision is not conclusive. The courts may also determine the question when it is properly presented to them. But they will not set aside an act of congress as unconstitutional, on this ground, unless it is clearly apparent that the statute can by no means be needful or appropriate to the execution of any of the specified pow- ers of the federal legislature. These principles are fully sustained by the decisions of the supreme court."*" It was on this ground that the constitutionality of the act incor- porating the bank of the United States was principally sustained. And the reasoning applies equally to other corporations. It is true that we cannot find in the constitution an express grant of power to con- gress to grant charters of incorporation. But if a bank, a railroad, a telegraph company, or any other kind of a corporation is a means or agency needed by congress in the exercise of its admitted powers, or conducive to their due execution, and plainly adapted to the accom- plishment of that end, then congress has power, under this clause of the constitution, to incorporate it."*^ 840 McCulloch V. Maryland, 4 Wheat. 316, 4 L. Ed. 579 ; Martin v. Hunter, 1 Wheat. 304, 4 L. Ed. 97 ; Gibbons v. Ogden, 9 Wheat. 1, 6 T^. Ed. 23 ; Hep- burn V. Griswold, 8 Wall. 603, 19 L. Ed. 513 ; Legal Tender Cases, 12 Wall. 457, 20 L. Ed. 287; Juilliard v. Greenman, 110 U. S. 421, 4, Sup. Ct. 122, 28 L. Ed. 204; U. S. v. Coombs, 12 Pet. 72, 9 L. Ed. 1004. And see Karem v. United States, 121 Fed. 250, 57 C. C. A. 486. 61 L. R. A. 437. See "Constitu- tional Law," Dec. Dig. {Key No.) §§ 38, J,7, /a8; Cent. Dig. §§ 36, Jf$-46. 84iMcCulloeh V. Maryland, 4 Wheat. 316, 4 L. Ed. 579; Osborn v. Bank of U. S., 9 Wheat. 738, 6 L. Ed. 204; Farmers' & Mechanics' Nat Bank v. Dearing.'oi U. S. 29, 23 L. Ed. 196; 2 Story, Const. §§ 1259-1271. See "Cor- porations," Deo. Dig. (Key No.) § 4j Cent. Dig. § 11. § 107) LIMITATIONS ON POWERS OF CONGRESS. 287 IMITATIONS ON POWERS OF CONGRESS. 107. The limitations upon the legislative power of congress, under the constitution, may be divided into four classes;— (a) Implied limitations, (h) General limitations. (c) Specific limitations upon general powers. (d) Specific limitations upon specific poTrers. Implied Limitations. Besides the restriction upon the legislative power of the United States growing out of the fact that it is a government of enumerated powers, which has been already adverted to, there are certain limita- tions upon legislative power in general, arising from the nature of government and the partition of powers among the several depart- ments of the government, which are applicable to congress, as to any legislative body. These limitations are not expressed in the constitu- tion, but they are none the less effective and binding. We have chosen to describe them as "implied limitations." It is clear, in the first place, that congress cannot pass any law alter- ing the form or frame of the government, curtailing t';e autonomy of the United States, or subjecting the government to the influence or ascendency of any foreign power. Nor can it make exterritorial laws; that is, laws designed to oper- ate beyond the boundaries or the jurisdiction of the United States; Nor could it renounce or surrender any of the powers granted to it by the constitution, whether to the other branches of the government, the states, or private parties. Nor could it legally encroach upon the province of either the ex- ecutive or the judicial department of the government or usurp the functions of either. Nor can it delegate the powers confided to it, or authorize their ex- ercise by any other body or any person.^*^ 34 2 On the general subject of the delegation of legislative power by con- gress, and particularly to administrative boards and officers, see Butte City Water Co. v. Baker, 196 U. S. 119, 25 Sup. Ct. 211, 49 L. Ed. 409 ; Buttfield V. Stranahan, 192 U. S. 470, 24 Sup. Ct. 349, 48 L. Ed. 525; Hanover Nat. Bank v. Moyses, 186 U. S. 181, 22 Sup. Ct. 857, 46 L. Ed. 1113 ; Rice v. Ames, 180 U. S. 371, 21 Sup. Ot 406, 45 L. Ed. 577; Dunlap v. United States, 173 U. S. 65, 19 Sup. Ct. 319, 43 L. Ed. 616 ; In re Kollock, 165 U. S. 526, 17 Sup. Ct. 444, 41 L. Ed. 813; Dastervignes v. United States, 122 Fed. 30, 58 C. C. A. 346 ; Butler v. "White (C. C.) 83 Fed. 578 ; United States v. Blasingame 288 THE POWKES OF CONGRESS. (Ch. 8 General Limitations. The general limitations upon the power of the federal government are found in the ninth and tenth amendments to the constitution. In regard to the first of these, it has been said that it "was manifestly introduced to prevent any perverse or ingenious misapplication of the well-known maxim that an affirmation in particular cases implies a negation in all others, and, e converso, that a negation in particular cases implies an affirmation in all others. The maxim, rightly under- stood, is perfectly sound and safe; but it has often been strangely forced from its natural meaning into the support of the most dangerous political heresies." '*' The tenth amendment was adopted in conse- quence of the jealousies felt by the states with regard to the power of the central government, and was designed to make it more clear and certain that the government of the United States was one of delegated and enumerated powers. The force and applicability of this amend- ment are chiefly apparent when it is considered in connection with the grant to congress of power to "make all laws which shall be necessary and proper for carrying into execution" its enumerated powers. It should therefore be studied in relation to the doctrine of implied and incidental powers. Specific Limitations upon General Powers. The specific limitations upon the general powers of congress are mainly found in the first eight amendments to the constitution and in the last three. These constitute what may be called the federal bill of rights. They are intended to secure those personal, social, and political rights which are generally esteemed characteristic of a free country, against all abridgment or invidious legislation on the part of the national government. These are best considered in connection with the study of those rights, and will be found treated in the chap- ters on civil and political rights and the constitutional guaranties in criminal cases. But there are certain limitations of federal power, found in other parts of the constitution, which must be briefly noticed here, as belonging to this class. Thus, "the migration or importation (D. O.) 116 Fed. 654 ; United States v. Romard (C. O.) 89 Fed. 156 ; United States V. Ormsbee (D. 0.) 74 Fed. 207; United States v. Breen (C. C.) 40 Fed. 402; Czarra v. Board of Medical Sup'rs, 24 App. D. O. 251; Prather v. United States, 9 App. D. C. 82; Moore v. Allen, 7 J. J. Marsh. (Ky.) 651; State V. Chittenden, 127 Wis. 468, 107 N. W. 500; Schaezleln v. Cabannlss, 135 Cal. 466, 67 Pac. 755, 56 L. R. A. 733, 87 Am. St. Rep. 122. See "Constitu- tional Law," Dec. Dig. (Key No.) §§ 59-66; Cent. Dig. §i 89-122. s*3 2 Story, Const. § 1905. § 107) LIMITATIONS ON POWERS OF CONGEESS. 289 of such persons as any of the states now existing shall think proper to admit shall not be prohibited by the congress prior to the year 1808." This obscure phrase was designed to secure the continuance of the African slave-trade until the year designated. Its insertion was neces- sary to secure the adoption of the constitution, and was one of the principal compromises of that instrument. As soon as the stipulated twenty years had elapsed, congress absolutely prohibited the further importation of slaves, and also made the slave-trade piracy apd pun- ishable with death. Again, "no money shall be drawn from the treas- ury but in consequence of appropriations made by law; and a regu- lar statement and account of the receipts and expenditures of all pub- lic money shall be published from time to time." "No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them shall, with- out the consent of congress, accept^ of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state." The clause which prohibits the granting of titles of nobility has but little significance at the present day. But it was once thought import- ant, as a means of preserving the simplicity of republican institutions and policy, and was also deemed a valuable safeguard against the possible ascendency of powerful and ambitious families.'** The same prohibition is also laid upon the states. Specific Limitations upon Specific Powers. These limitations have already been discussed in connection with the powers to which they relate, and it is only necessary here to enu- merate them, for the purpose of giving a complete conspectus of the powers and restrictions of the national legislature. Congress may alter the regulations made by the several states as to the time, place, and manner of holding elections for senators and rep- resentatives, except as to the places of ciioosing senators. Congress has power to lay and collect taxes; But all duties, imposts, and excises shall be uniform throughout the United States, and no capi- tation or other direct tax shall be laid unless in proportion to the census 84* Congress has provided that in case an alien applying for naturalization has borne any hereditary title, or been of any of the orders of nobility, of the kingdom or state from which he comes, he must make an express re- nunciation of such title or order before being admitted to citizenship, which renunciation shall be recorded '^ev. St. U. S. § 2165 (U. S. Comp. St 1901, p. 1329). Bl.Oonst.L.(3d.Ed.)— 19 290 THE POWERS OF CONGEESS. (Ch. & or enumeration, and no tax or duty shall be laid on articles exported from any state. Congress has power to regulate foreign and interstate commerce. But no preference shall be given by any regulation of commerc"?* or revenue to the ports of one state over those of another. It has the power to enact laws concerning naturalization and bank- ruptcy. But these must be uniform throughout the United States. It has power to grant patents and copyrights. But these must be .for limited times only. It may constitute courts. But these must be Inferior to the supreme court. In other words, congress can never strip the supreme court of its functions and prerogatives by creating another court with appellate jurisdiction over it. It has power to raise and support armies. But no appropriation of money to that use shall be for a longer term than two years. It may provide for organizing,' arming, and disciplining the militia, and for governing such part of them as may be employed in the serv- ice of the United States. But there is reserved to the states the ap- pointment of the officers and the authority of training the militia ac- cording to the discipline prescribed by congress. Congress has power to declare the punishment of treason. But no ■ attainder of treason shall work corruption of blood, or forfeiture ex- cept dur'ing the life of the person attainted. New states may be admitted by congress into the Union. But no new state shall be formed or erected within the jurisdiction of any other state, nor any state be formed by the junction of two or more states or parts of states, without the consent of the legislatures of the states concerned ag well as of congress. §§ 108-110) INTERSTATE LAW UNDER THE CONSTITUTION. 291 CHAPTER IX. INTERSTATE LAW AS DETERMINED BY THE CONSTITUTION. 108-110. General Principles. 111. Privileges of Citizens. 112. Public Acts and Judicial Proceedings. 113-116. Interstate Extradition. GENEBAI, PRINCIPLES. 108. In all relations not regulated by the federal constitution, the several states of the TJnion occupy the position of inde- pendent poivers in close alliance and friendship. 109. As bet'nreen the several states, and their people, the principles of private international la'tv apply urith even greater force than as betiveen the subjects of foreign nations. 110. In matters independent of the constitution, the principle of interstate comity must yield to the interests or the policy of the particular state. If it were not for the provisions of the constitution of the United States, no state would be legally bound to give effect to the laws or institutions of another state within its own borders or in their applica- tion to its own citizens, or to recognize the judgments or decrees of the courts of another state as technically binding on its own courts, or to accord to the citizens of another state, when resident within its lim- its or there engaged in business, any greater rights or privileges than it might see fit to grant to citizens or subjects of foreign nations under like circumstances. In all the most fundamental particulars, this pow- er to discriminate against each other is taken away from the states by the constitutional provisions which we are to consider in the following pages. But in all other matters, the several states, being foreign to each other, will apply the rules of private international law to questions concerning the property, rights, contracts, or actions of a citizen of one state projected over into another state. These rules, while recognized and enforced by the courts in the absence of any countervailing statute, yet rest on no firmer foundation than the principle of interstate com- ity, and must give way whenever they are found to be in conflict with the laws or policy of a state in the interests of its own people.^ 1 Sliaw v. Brown, 35 Miss. 246 ; Donovan v. Pitcher, 53 Ala. 411, 25 Am. Rep. 634. The pov^er of determining whetlier and how far, or with what modi- 292 INTERSTATE LAW UNDER THE CONSTITUTION. (ph. 9 PRIVILEGES OF CITIZENS. 111. By a provision of the federal constitution, the citizens of each state are entitled to all the privileges and immunities of citizens in the several states. What Privileges Intended. The supreme court of the United States has declared that it will not undertake to describe and define the rights and privileges of cit- izens under this clause in any general classification, preferring to de- cide each case which arises under this provision as it may come up.^ It is evident, however, that the rights and privileges here intended are only such as belong to citizenship. And a more definite idea of the meaning of the clause may be obtained from a consideration of the pur- pose with which it was inserted in the constitution. This purpose waS* to prevent the states from making invidious discriminations against non-residents, and to promote the unification of the American people, by breaking down state lines, in respect to the enjoyment of social and business privileges and the favor and protection of the laws.' Accord- ingly we may say that the privileges and immunities secured by this clause of the constitution include protection by the government; the enjoyment of life and liberty, with the right to acquire, possess, and dispose of property of every kind ; * the right of a citizen of one state to pass freely into, through, and out of another state, with his property, fication, or upon what conditions, the laws of one state or any rights dependent upon them shall be recognized in another is a legislative one ; the comity In- volved Is the comity of the states, and not of the courts ; and the judiciary must be guided in deciding the question by the principle and policy adopted by the legislature. Thompson v. Waters, 25 Mich. 214, 12 Am. Rep. 243. 2 Conner v. Elliott, 18 How. 591. See "Constitutional Law," Dec. Dig. (Key No.) § 207; Cent. Dig. § 625. s Corfield v. Coryell, 4 Wash. C. C. 371, Fed. Cas. No. 3,230 ; McCready v. Commonwealth, 27 Grat. (Va.) 985 ; Ward v. Maryland, 12 Wall. 418, 430, 20 L. Ed. 449 ; Crandall v. Nevada, 6 Wall. S5, 18 L. Ed. 745 ; Commonwealth v. Shaleen, 30 Pa. Super. Ct. 1. See "Commerce," Cent. Dig. § 1Z9; "Constitu- tional Law," Dec. Dig. (Key No.) § 207; Cent. Dig. §§ 625, 632, 633, 637. * Roby V. Smith, 131 Ind. 342, 30 N. B. 1093, 15 L. R. A. 792, 31 Am. St. Rep. 439 (a statute is invalid which forbids the appointment of non-residents as trustees in deeds or mortgages). But a state may restrict to its own citizens the right to act as executors (In re Mulford, 217 111. 242, 75 N. E. 345, 1 L. R, A. [N. &.] 341, 108 Am. St Rep. 249) or as assignees for the benefit of credit- ors (Duryea v. Muse, 117 Wis. 399, 94 N. W. 365). See "Gomtitutional Law," Dec. Dig. (Key No.) g 201; Cent. Dig. §§ 625, 635. § 111) PEIVILEGE8 OF CITIZENS. 293 subject only to reasonable and proper quarantine and inspection laws; " and to transact business in any other state free from any restrictions or burdens which are not imposed on its own citizens ; * and to engage in and practice his lawful trade or profession therein, except in so far as this right may be restricted by proper police regulations ; ' and to claim the benefit and protection of its law, as a safeguard against in- justice, and to have free access to its courts for the enforcement of his own just claims and demands.' A state law which gives priority to citizens of the state, as against non-residents, in the distribution of the assets of an insolvent foreign corporation, is for this reason in- B Reid V. Colorado, 187 U. S. 137, 23 Sup. Ct. 92, 47 L. Ed. 108 ; Hannibal & St. J. R. Co. V. Husen, 95 U. S. 465, 24 L. Ed. 527 ; Train v. Boston Disinfect- ing Co., 144 Mass. 523, 11 N. E. 929, 59 Am. Rep. 113 ; Adams & Bryson v. Lytle (C. C.) 154 Fed. 876. See "Commerce," Cent. Dig. §§ 49, 89; "Constitu- tional Law," Dec. Dig. (Key No.) § 20T; Cent. Dig. §§ 633, 638; "Health," Cent. Dig. § 26. s Barnes v. People, 168 111. 425, 48 N. B. 91 ; State v. Board of Insurance Com'rs, 37 Fla. 564, 20 South. 772, 33 L. R. A. 288. See "Constitutional Law," Dec. Dig. (Key No.) § 207; Cent. Dig. § 625. 7 A state statute restricting the grant of retail liquor licenses to citizens of the state is not an unlawful discrimination against non-residents, but is a proper police regulation. De Grazier v. Stephens (Tex.) 105 S. W. 992, 16 L. R. A. (N. S.) 1033 ; Austin v. State, 10 Mo. 591 ; Kohn v. Melcher (C. C.) 29 Fed. 433 ; Welsh v. State, 126 Ind. 71, 25 N. E. 883, 9 K R. A. 792. The same applies to a law regulating the practice of medicine and requiring non-resident applicants for a license to be examined by a state board (State v. Currens, 111 Wis. 431, 87 N. W. 561, 56 L. R. A. 252) or prohibiting non-resident physi- cians from practicing in the state except when called in consultation (France v. State, 57 Ohio St. 1, 47 N. E. 1041). So also of a law requiring coal miners to have had two years' experience "in the mines of this commonwealth." Com- monwealth v. Shaleen, 215 Pa. 595, 64 Atl. 797. See "Constitutional Law," Dec. Dig. (Key No.) § 207; Cent. Dig. §§ 629, 631, 632. 8 Stevens v. Brown, 20 W. Va. 450 ; Eingartner v. Illinois Steel Co., 94 Wis. 70, 68 N. W. 664, 34 L. R. A. 503, 59 Am. St. Rep. 859 ; In re Flukes, 157 Mo. 125, 57 S. W. 545, 51 L. R. A. 176, 80 Am. St. Rep. 619 ; Deatrlck's Adm'r v. State Life Ins. Co., 107 Va. 602, 59 S. B. 489; Drew v. Cass, 129 App. Div. 453, 113 N. Y. Supp. 1042. But the right to use the process of foreign at- tachment may be restricted to citizens of the state. Kincaid v. Francis, Cooke (Tenn.) 49. And so of a right of action for damages vested by stat- ute in the widow and heirs of a person whose death was caused 'by negli- gence or wrongful act. Chambers v. Baltimore & O. R. Co., 207 U. S. 142, 28 Sup. Ct. 34, 52 L. Ed. 143. And a non-resident plaintiff may be required to fur- nish security for costs. Holt v. Tennallytown & R. R. Co., 81 Md. 219, 31 Atl. 809 ; Cummings v. Wlngo, 31 S. 0. 427, 10 S. E. 107. See "Constitutional Law," Dec. Dig. (Key No.) § 207; Cent. Dig. §§ 646, 6i1. 294 INTERSTATE LAW UNDER THE CONSTITUTION. (Oh. 9 valid,^ and so is one which authorizes a personal judgment against a non-resident on constructive service of process/" though it is other- wise if the judgment affects only property attached within the state.'-^ What Privileges not Included. This clause of the constitution does not confer upon the citizens of each state the right of voting, of being elected, or of holding office in the other states. These are political privileges which each state may justly reserve for its own citizens. But it would not be competent for the state to deny to non-residents the right to acquire citizenship among its own people, upon abandoning their former domicile, as a prelim- inary to exercising the right of suffrage." Nor does this constitu- tional provision entitle the citizens of the various states to share in the common property of citizens of a particular state, as, for example, the right of hunting wild game or fishing or taking oysters or clams from the waters of the state; and it is not infringed by a state law restricting such rights of hunting and fishing to the citizens of the state.^' W,ho are Citizens. Since the constitution provides that the citizens of "each state" shall be entitled to these privileges and immunities, it may well be ques- tioned whether citizens resident in the territories and the District of Columbia may claim the benefit of this clause. The same reason which excludes them from the right to sue citizens of the states in the fed- 9 Sully V. American Nat. Bank, 178 U. S. 289, 20 Sup. Ot. 935, 44 L. Ed. 1072; Blake v. McClung, 172 U. S. 239, 19 Sup. Ct. 165, 43 L. Ed. 432 ; Maynard v. Granite State Provident Ass'n, 92 Fed. 435, 34 C. C. A. 438. See "Constitu- tional Law," Dec. Dig. {Key No.) § 207; Cent. Dig. §§ 625-6^8. 10 Moredock v. Kirby (C. C.) 118 Fed. 180. See "Constitutional Law," Dec. Dig. {Key No.) § 207; Cent. Dig. § 6i6. 11 Reid V. Mickles (Tex. Civ. App.) 29 S. "W. 563. See "Constitutional Law," Dec. Dig. {Key No.) § 207; Cent. Dig. § 929. 12 Murray v. McCarty, 2 Munf. (Va.) 393; Campbell v. Morris, 3 Har. & McH. (Md.) 535, 554. See "Constitutional Law," Dec. Dig. {Key No.) § 207; Cent. Dig. §§' 6i2, 645. 13 McCready v. Virginia, 94 U. S. 391, 24 L. Ed. 248; State v. Tower, 84 Me. 444, 24 Atl. 898 ; In re Eberle (C. C.) 98 Fed. 295 ; Commonwealth v. Hilton, 174 Mass. 29, 54 N. B. 362, 45 L. R. A. 475 ; State v. Corson, 67 N. J. Law, 178, 50 Atl. 780; Brooks v. Tripp, 135 N. C. 159, 47 S. E. 401. And see Geer v. Connecticut, 161 U. S. 519, 16 Sup. Ot 600, 40 L. Ed. 793; Magner v. People, 97 III. 320. See "Commerce," Cent. Dig. § 102; "Constitutional Law," Deo. Dig. (Key No.) § 207; Cent. Dig. § 637; "Game," Cent. Dig. § 2. § 111) PEIVILEGES OF CITIZKN8. 295 eral courts would seem to be operative here.^* It is settled that cor- porations are not citizens, within the meaning of this provision; it is intended to apply to natural persons only. Hence a state may law- fully either grant or refuse to foreign corporations the privilege of do- ing business within its limits, and if it accords the privilege, it may im- pose terms and conditions on its exercise.^" Discriminating Taxes. A state statute imposing a license tax upon peddlers, salesmen, or traveling merchants, must not make any discrimination against citizens of other states, either by placing a heavier burden of taxation upon them than is borne by the citizens of that state, or by giving to its own citizens privileges which are not accorded to non-residents in the same line of business. If it does, it is obnoxious to the clause under consideration.^" And so of an inheritance tax law which discriminates against non-resident beneficiaries.^' And any tax law of a state which 1* In re Johnson's Estate, 139 Cal. 532, 73 Pac. 424, 96 Am. St. Rep. 161. Bee "Constitutional Law," Dec. Dig. (Key No.) § 207; Cent. Dig. § 626. IS Paul V. Virginia, 8 Wall. 168, 19 L. Ed. 357; Ducat v. Chicago, 10 Wall. 410, 19 L, Ed. 972; Liverpool & L. Life & F. Ins. Co. v. Massachusetts, 10 Wall. 566, 19 L. Ed. 1029 ; Warren Mfg. Co. v. Etna Ins. Co., 2 Paine, 501, Fed. Cas. No. 17,206 ; Pembina Consol. Silver Min. & Mill. Co. v. Pennsylvania, 125 U. S. 181, 8 Sup. Ct. 737, 31 L. Ed. 650; Horn Silver Min. Oo. v. New York, 143 U. S. 305, 12 Sup. Ct. 403, 36 L. Ed. 164 ; Slaughter v. Commonvcealth, 13 Grat (Va.) 767 ; People v. Imlay, 20 Barb. (N. Y.) 68 ; Western Union Tel. Co. V. Mayer, 28 Ohio St. 521 ; Fire Department v. Helfenstein, 16 Wis. 136 ; Nor- folk & W. R. Co. V. Pennsylvania, 136 U. S. 114, 10 Sup. Ct. 958, 34 L. Ed. 394 ; Blake v. McClung, 172 U. S. 239, 19 Sup. Ct. 165, 43 L. Ed. 432 ; In re Speed's Estate, 216 111. 23, 74 N. E. 809, 108 Am. St. Rep. 189 ; Attorney Gen- eral V. Electric Storage Battery. Co., 188 Mass. 239, 74 N. E. 467 ; Orient Ins. Co. V. Daggs, 172 U. S. 557, 19 Sup. Ct. 281, 43 L. Ed. 552 ; Western Union Tel. Co. V. State, 82 Ark. 309, 101 S. W. 748; Commonwealth v. Gregory, 121 Ky. 256, 28 Ky. Law Rep. 217, 89 S. W. 168 ; Roeder v. Robertson, 202 Mo. 522, 100 S. W. 1086 ; People v. Granite State Provident Ass'n, 41 App. Div. 257, 58 N. Y. Supp. 510. See "Constitutional Law," Dec. Dig. (Key No.) § 207; Cent. Dig. §§ 6S5, 6i1. 18 Ward V. Maryland, 12 Wall. 418, 20 L. Ed. 449; Cullman v. Arndt, 125 Ala. 581, 28 South. 70; In re Jarvls, 66 Kan. 329, 71 Pac. 576; Rodgers v. Adsit, 115 Mich. 441, 73 N. W. 381 ; Bacon v. Locke, 42 Wash. 215, 83 Pac. 721 ; McGuire v. Parker, 32 La. Ann. 832 ; Daniel v. Trustees Richmond, 78 Ky. 542 ; State v. Lancaster, 63 N. H. 267 ; Rash v. Holloway, 82 Ky. 674. See In re Rudolph (O. C.) 6 Sawy. 295, 2 Fed. 65. See "Constitutional Law," Dec. Dig. (Key No.) § 207; Cent. Dig. §§ 632, 642. 17 In re Mahoney's Estate, 133 Cal. 180, 65 Pac. 389, 85 Am. St. Rep. 155. See "Constitutional Law," Deo. Dig. (Key No.) § 207; Cent. Dig. §§ 625-648. 296 INTERSTATE LAW UNDEE THE CONSTITUTION. (Oil. 9 necessarily discriminates against the introduction and sale of the manu- factures or products of another state or states, and in favor of the manufactures or products of its own citizens and against those of other states, is unconstitutional, for the same reason.^* FTJBI.IC ACTS AND JTJDICIAI. PROCEEDINGS. 112. Tlie constitution also provides that "full faitb and credit shall be given in each state to the public acts, records, and judi- cial proceedings of every other state. And the congress may by general lairs prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." Public Acts. This constitutional requirement implies that the public acts (that is, statutes) of every state shall be given the same effect by the courts of another state that they have by law and usage at home. This of course does not give them any ex-territorial effect, but applies only to the de- termination of cases which they are alleged to govern. But the courts of one state cannot take judicial notice of the laws of another state; they must be proved as facts.^' Judgments and Decrees. If it were not for this provision of the constitution, and the acts of congress passed in pursuance of it, the judgments and decrees of each state would be regarded as foreign judgments in the courts of every other state, and their effect would have to be determined by the prin- ciples of international law or by such other considerations as are in- fluential in fixing the status of judicial records brought from foreign countries.^" A similar provision was found in the articles of confed- eration, and it was construed as prohibiting a re-examination on the merits of a decree rendered in a sister state.^^ IS Walling v. Michigan, 116 XJ. S. 446, 6 Sup. Ct. 454, 29 L. Ed. 691 ; "Webber v. Virginia, 103 tJ. S. 344, 26 L. Ed. 565 ; Vines v. State, 67 Ala. 73. See "Gonv- meroe," Gent. Dig. § IS^; "Constitutional Law," Dec. Dig. (Key No.) § 207; Cent. Dig. § eSO. 19 Chicago & A. R. Oo. v. Wiggins Ferry Ck)., 119 U. S. 615, 7 Sup. Ct. 398, 30 L. Ed. 519. See "Evidence," Dec. Dig. (Key No.) § 35; Cent. Dig. § 51. 2 Buckner v. Finley, 2 Pet. 586, 7 L. Ed. 528 ; Warren Mfg. Co. v. Etna Ins. Co., 2 Paine, 501, Fed. Cas. No. 17,206. See "Judgment," Dec. Dig. (Key No.) §§ 813-816; Gent. Dig. §§ lUS, UU, 1501. 21 Jenkins v. Putnam, 1 Bay (S. C.) 8, 1 Am. Dec. 594. See "Judgment," Dec. Dig. (Key No.) §§ 814-816; Cent. Dig. §§ UU, U88. § 112) PUBLIC ACTS AND JUDICIAL PK0CEEDIN08. 297 In pursuance of the power given to congress to prescribe the man- ner of authenticating the records and judicial proceedings of other states, and the effect thereof, that body early passed an act which was expressed as follows: "The records and judicial proceedings of the courts of any state shall be proved and admitted in any other court within the United States, by the attestation of the clerk and the seal of the court annexed, if there be a seal, together with a certificate of the judge, or presiding magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial proceed- ings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from whence the said records are or shall be taken." A subsequent statute extended the provisions of this act to "the territories of the United States, and the countries sub- ject to the jurisdiction of the United States."-^" This statute, it is held, does not prevent a state from making such further rules, in re- gard to the authentication of foreign judgments, as it may deem best, provided only that they are not inconsistent with the act of congress. Neither does the statute render it inadmissible to prove such a judg- ment in a manner which would be sufficient at common law.^^ It is now finally and firmly settled that a judgment rendered by a court of competent authority, having jurisdiction of the parties and the subject matter, in one state, is conclusive on the merits in the courts of every other state, when made the basis of an action, and in such action the merits cannot be inquired into.^* Under this clause of the constitution, therefore, the judgment of a court in a sister state is to be accorded the same faith and credit which it receives at home. It is of a higher grade than a foreign judgment, for its effect is regulated by the constitution. But yet it is not the same as a domestic judgment, for it is not executory by itself. But the judgment, if valid at home, is to be considered valid everywhere within the United States, and if 22 Act May 26, 1790 (1 Stat. 122 ; Rev. St. U. S. § 905 [U. S. Comp. St. 1901, p. 677]) ; Act March 27, 1804 (2 Stat. 298). .23 Gaines v. Relf, 12 How. 472, 13 L. Ed. 1071 ; White v. Burnley, 20 How. 235, 15 L. Ed. 886. See "Evictence," Dec. Dig. (Key No.) § 348; Cent. Dig. §§ 1369-1383; "Judgment," Cent. Dig. § lUl. 2* Mills V. Duryee, 7 Cranch, 481, 3 L. Ed. 411; Hampton v. McConnel, 3 Wheat. 234, 4 L. Ed. 378; McElmoyle v. Cohen, 13 Pet. 312, 10 L. Ed. 177; Christmas r. Russell, 5 Wall. 290, 18 L. Ed. 475; Mutual Life Ins. Co. v. Harris, 97 U. S. 331, 24 L. Ed. 959. Bee "Judgment;' Dec. Dig. (Key No.) § 822; Cent. Dig. § 1500. 298 INTEESTATE LAW irNDER THE CONSTITUTION. (Ch. 9 binding on the parties at home, it is conclusive in all other courts in the Union.^^ But the judgment, as already stated, is not executory in a. foreign state ; that is, it does not per se authorize the issue of final process or the exercise of auxiliary jurisdiction, but only when merged in a new judgment recovered in the foreign state.^^ Again, judgments of one state, when sought to be enforced in the courts of another, do not enjoy the right of privilege, priority, or lien which they have in the state where they are pronounced, but only that which the lex fori gives to them by its own laws in their character of foreign judg- ments.^'' And while the judgment is conclusive on the merits, yet it is open to the party who desires to assail it to show that it is not in effect a valid and subsisting judgment, such as is entitled to the benefit of the constitutional provision. Thus, he may show that the judgment has been set aside by the court which rendered it, or reversed by an appellate court. Further, he may show anything which goes in dis- charge of the judgment, as that it has been paid, or released, or com- promised. Also he may show that the judgment, as a cause of action, is barred by the statute of limitations of the state where the judgment is sought to be enforced, if that statute is so framed as to include judg- ments.^* So also, the party may deny that the court which rendered the judgment had jurisdiction of his person or of the subject matter of the suit, and thereupon it becomes the duty of the court where the record is offered to inquire into the allegation, and if it is found that there was such a lack of jurisdiction, then the judgment must not be enforced against him.^' But the judgment is not impeachable in 25 Armstrong v. Carson, 2 Dall. 302, Fed. Cas. No. 543 ; Nations v. Johnson, 24 How. 195, 16 L. Ed. 628 ; Field v. Glbbs, 1 Pet. C. C. 155, Fed. Cas. No. 4,766 ; Bryant v. Hunter, 3 Wash. 0. C. 48, Fed. Cas. No. 2,068. See "Judg- ment," Dec. Dig. (Key No.) § 822; Cent. Dig: § U89. 26 Claflln V. McDermott (0. C.) 12 Fed. 375 ; Walser v. Sellgman (C. C.) 13 Fed. 415. See "Judgment," Deo. Dig. (Key No.) § 823; Cent. Dig. § 1501. 2T McElmoyle v. Cohen, 13 Pet. 312, 10 L. Ed. 177; Story, Confl. Laws, § 609. See "Judgment," Dec. Dig. (Key No.) § 823; Cent. Dig. § 149I. 2 8 McElmoyle v. Cohen, 13 Pet. 312, 10 L. Ed. 177; Napier v. Gidiere, 1 Speer, Eq. (S. C.) 215, 40 Am.' Dec. 613 ; Reld v. Boyd, 13 Tex. 241, 65 Am. Dec. 61 ; Jacquette v. Hugunon, 2 McLean, 129, Fed. Cas. No. 7,169. See "Judg- ment," Deo. Dig. (Key No.) § 93^; Gent. Dig. § lt65; "Limitation of Actions," Dec. Dig. (Key No.) § 2; Cent. Dig. § 4. 2i)D'Arcy v. Ketchum, 11 How. 165, 13 L. Ed. 648; Bischoff v. Wethered, 9 Wall. 812, 19 L. Ed. 829 ; Thompson v. Whitman, 18 Wall. 457, 21 L. Ed. 897 ; Galpln V. Page, 18 Wall. 350, 21 L. Ed. 959 ; Cheever v. WUson, 9 Wall. 108, 19 L. Ed. 604; Amott v, Webb, 1 Dill. 362, Fed. Cas. No. 562; Harris v. § 112) P0BUC ACTS AND JUDICIAL PROCEEDINGS. 299 the courts of another state on the ground of any mere error or irreg- ularity, or upon any allegations that it was unjust or ill-founded. And it seems also (though the point is not entirely free from doubt) that fraud in the obtaining of the judgment is not a good defense, for the party who desires to avoid it on the ground of fraud has his opportuni- ty in the court which rendered the judgment, and it is there he must avail himself of it.^" The question of the validity and effect of judgments from another state has most frequently arisen in cases where such judgments were given against non-residents. Without attempting to discuss all the various and interesting questions which are involved in this subject, it may be said, briefly, to be the accepted doctrine that the judicial process of a state has no ex-territorial force or efficacy; that such process cannot be sent into another state and there served on a party with the effect of legally obliging him to appear ; that in such case the service amounts to no more than a constructive service ; that the same consequences and no others attach to the service of process by pub- lished advertisement; that in neither of these modes can the courts of the state acquire such jurisdiction over the person of the defend- ant as will authorize them to pronounce a personal judgment against him; that a personal judgment rendered in an action where the only service of process on the defendant was constructive, is not to be re- ■ garded as valid or« binding in the courts, of any other state. But since each state has the right and power to legislate concerning the prop- erty which is within its limits, and to provide for its submission to pay the debts of its owner, it is held that where an action is begun against a non-resident by the attachment of property within the jurisdiction of the court, this will confer jurisdiction, not against the defendant personally, but against the property attached, to the extent of author- izing the court to render a judgment which may be enforced against that property. And such a judgment, to that extent, is to be regarded as valid and binding everywhere else.^^ While the statute of limita- tions of the state of the forum may be pleaded in defense, yet it would Hardeman, 14 How. S34, 14 L. Ed. 444. See "Judgment," Deo. Dig. (Key No.) § 818; Cent. Dig. §§ U58-U81. 3 Hanley v. Donoghue, 116 U. S. 1, 6 Sup. Ct. 242, 29 L. Ed. 535; Ander- son V. Anderson, 8 Ohio, 108; 2 Black, Judgm. §§ 916-921. See "Judgment," Dec. Dig. (Key No.) §§ 819, 820; Cent. Dig. §§ U82-U81, 1160. 31 See Pennoyer v. Neff, 95 U. S. T25, 24 L. Ed. 565 ; Cooper v. Reynolds, 10 Wall. 308, 19 L. Ed. 931; D'Arcy v. Ketchum, 11 How. 165, 13 L. Ed. 648; Williams v. Armroyd, 7 Crancb, 423, 3 L. Ed. 392; Boswell v. Otis, 9 How. 300 INTERSTATE LAW UNDER THE CONSTITUTION. (Ch. S* not be competent for a state to so frame its law of limitations, with respect to judgments from other states, as to effectually nullify them, by cutting off all remedy whatever. It is always within the constitu- tional rights of parties to have a reasonable opportunity to enforce- their demands.'^ j^ judgment rendered by a justice of the peace in another state, although the court be not one of record, is a judicial proceeding within the meaning of the constitution, and full faith and credit is to be accorded to it.^^ The federal tribunals are not regarded as foreign to each other or to those of the several states. Hence the judgment of a United States court, when sued on in a state court or in another United States court, is entitled to full faith and credit, and so are the judgments of the state courts when offered in the federal tri- bunals.^* And the same rule applies to the effect of the judgments of the courts in the territories and the District of Columbia.^" INTERSTATE EXTRADITION. 113. It is provided by the federal constitntion that "a person charg- ed in any state irlth treason, felony, or other crime, irho shall flee from justice and be fonnd in another state, shall, on demand of the executive authority of the state from ivhich he fled, be delivered up, to be removed to the state- having jurisdiction of the crime." 114. To -warrant the rendition of an alleged criminal under this- provision, it is requisite— (a) That he should be charged -nrith the commission of a crime made punishable by the la-ws of the state demanding his surrender. 336, 13 L. Ed. 164; Chase v. Chase, 6 Gray (Mass.) 157. See "Judffment,"^ Dec. Dig. {Key No.) § 82^; Cent. Dig. §§ IW, 1450. 3 2 Christmas v. Russell, 5 Wall. 290, 18 L. Ed. 475. See "Judgment," Dec. Dig. {Key No.) § 93i; Cent. Dig. § 1765; "Limitation of Actions," Dec. Dig. (Key No.) § S; Cent. Dig. § 4. 3 3 Stockwell V. Coleman, 10 Ohio St. 33; Carpenter v. Pier, 30 Vt. 81, 73' Am. Dec. 288; Glass v. Black-well, 48 Ark. 50, 2 S. W. 257.' See "Judgment," Dec. Dig. {Key No.) § 826; Cent. Dig. § 1^52. 31 Crescent City Live-Stock Co. v. Butchers' Union Slaughterhouse Co., 120- U. S. 141, 7 Sup. Ct. 472, 30 L. Ed. 614 ; U- S. v. Dewey, 6 Biss. 501, Fed. Cas. No. 14,956 ; Amory v. Amory, 3 Biss. 266, Fed. Cas. No. 334. See "Judgment" Dec. Dig. {Key No.) §§ 828, 829; Cent. Dig. §§ 1504-151J,. 3 5 Johnson v. Dobbins, 5 Wkly. Notes Cas. (Pa.) 537; 2 Black, Judgm. § 938^ See "Judgment," Dec. Dig. {Key No.) § 829; Cent. Dig. § 1515. .§§ 113-116) INTERSTATE EXTRADITION. 301 0>) That lie should lie a fugitive from the Justice of that state. NST.D.^D.BD.)— 20 306 INTERSTATE LAW UNDER THE CONSTITUTION. (Ch. 9 and moral sense. If he will not perform it, the courts have no power to compel him by mandamus, nor is there any other way in which he can be constrained."* The courts have power, on habeas corpus, to review the decisions of the executive authority in extradition proceedings. A person ar- rested under a warrant of extradition from one state of the Union to another is "in custody under or by color of the authority of the United States," and hence the federal courts have jurisdiction to in- quire by habeas corpus into and determine the legality of the same."* But their jurisdiction in this respect is not exclusive; it is concur- rent with that of the state courts. Generally speaking, the courts will not overrule the decisions of the governor, in extradition cases, unless they are clearly satisfied that an error has been committed."^ Thus, on habeas corpus, the sufficiency of the indictment as a matter of tech- nical pleading will not be inquired into." Nor, in reviewing the ac- tion of the executive in these proceedings, will the courts inquire into the motives and purpose of the proceeding (as, whether it is really to punish a crime or only to collect a debt), nor interfere with any matter connected therewith which lies within the discretion of the governor."^ B4 Kentucky v. Dennlson, 24 How. 66, 16 L. Ed. 717. The duty of examining extradition papers, passing on their validity, and Issuing his warrant, de- volTcs on the governor personally and cannot be delegated. In re Tod, 12 S. D. 386, 81 N. W. 637, 47 L. R. A. 566, 76 Am. St. Hep. 616. In the District of Columbia, the chief justice of the supreme court is charged with the same duties in extradition proceedings as are Imposed on the governors of the several states. Hayes v. Palmer, 21 App. D. C. 450. A person demanded in interstate extradition proceedings has no right to a hearing before the govern- or on the question whether he has been substantially charged with a crime and whether he is a fugitive from justice. Munsey v. Olough, 196 U. S. 364, 25 Sup. Ct. 282, 49 L. Ed. 515. See "Extradition," Dec. Dig. (Key No.) §§ 26, S5;.Cent. Dig. § 28. 5 B In re Doo Woon (D. O.) 18 Fed. 808; In re Roberts (D. 0.) 24 Fed. 132. See "Habeas Corpus," Dec. Dig. {Key No.) § 103; Cent. Dig. §§ 90, 91. 6 6 Robb V. Connolly, 111 U. S. 624, 4 Sup.'ct. 544, 28 L. Ed. 542; Ex parte Reggel, 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. Ed. 250 ; Ex parte Brown (D. C.) 28 Fed. 653; Hibler v. State, 43 Tex. 197; In re Robb, 64 Cal. 431, 1 Pac. 881 ; Ex parte State, 73 Ala. 503. See "Extradition," Dec. Dig. (Key No.) § 39; Cent. Dig. § 45; "Habeas Corpus," Deo. Dig. (Key No.) S 103; Cent. Dig. i§ 90, 91. 57 Pearce v. Texas, 155 U. S. 811, 15 Sup. a. 116, 39 L. Ed. 164. See "Habeas Corpus," Dec. Dig. (Key No.) f 103; Cent. Dig. §§ 90, 91. 68 In re Sultan, 115 N. O. 57, 20 S. E. 375, 28 L. R. A. 294, 44 Am. St. R«p. 433. See "Habeas Corpus," Dec. Dig. (Key No.) § lOSj Cent. Dig. §§ 90, 91. §§ 113-116) INTERSTATE EXTKADITION. 307 It is generally provided by the extradition treaties made by this country with foreign nations that a surrendered criminal can be tried only for the specific offense for which he was extradited. And if he is tried and acquitted on that charge, or if he is not tried for that offense at all, he has then the right to be set at liberty, and must be allowed a reasonable time to return to the country from which he was taken, be- fore being proceeded against on any other accusation. °* And it has sometimes been thought that the same principle should apply to extra- dition as between the several states of the Union. But it is now settled that, in the case of extradition from one state to another, the prisoner has no right, or claim to be afforded an opportunity of re- turning to the state to which he first fled before being tried for an- other and distinct offense from that designated in the requisition pa- pers. In other words, when the state regains possession of the fugi- tive, it may proceed at once to try him for any and all charges which it may have against him.*" A fugitive from justice charged with crime will not be released on habeas corpus because he was induced by a stratagem or trick to come within territory where he could properly be arrested, provided the stratagem used was not itself an infraction of law."^ And even if a person is kidnapped and forcibly brought back to the state where his crime was committed, without any extradition or other regular proceedings, this will give him a right to proceed against his abductor, but it is no reason why he should not be tried by the courts of that sou. S. V. Rauscher, 119 U. S. 407, 7 Sup. Ct. 234, 30 L. Ed. 425. See "Em- tradition," Dec. Dig. (Key No.) § 19; Cent. Dig. § 23. 60 Lascelles v. Georgia, 148 U. S. 537, 13 Sup. Ct. 687, 37 L. Ed. 549 ; Peo- ple V. Cross, 64 Hun, 348, 19 N. Y. Supp. 271; Id., 135 N. Y. 536, 32 N. B. 246, 31 Am. St. Kep. 850; State v. Stewart, 60 Wis. 587, 19 N. W. 429, 50 Am. Rep. 388 ; Carr v. State, 104 Ala. 4, 16 South. 150 ; Petry v. Leidigh, 47 Neb. 126, 66 N. W. 308; State v. Kealy, 89 Iowa, 94, 56 N. W. 283; State v. McNaspy, 58 Kan. 691, 50 Pac. 895, 38 L. R. A. 756; In re Walker, 61 Neb. 803, 86 N. W. 510 ; State v. Dunn, 66 Kan. 483, 71 Pac. 811 ; Taylor v. Com- monwealth, 96 S. W. 440, 29 Ky. Law Rep. 714 ; Rutledge v. Krauss, 73 N. J. Law, 397, 63 Atl. 988. But see State v. Boynton (Wis.) 121 N. W. 887. See "Extrad/ition," Dec. Dig. (Key No.) § 41; Cent. Dig. § 52. 61 Ex parte Brown (D. C.) 28 Fed. 653; Ex parte Baker, 43 Tex. Cr. R. 281, 65 S. W. 91, 96 Am. St. Rep. 871 ; Ex parte Moyer, 12 Idaho, 250, 85 Pac. 897, 12 L. R. A. (N. S.) 227, 118 Am. St. Rep. 214. See "Extradition," Deo. Dig. (Key No.) § 4S; Cent. Dig. § 34, 308 INTERSTATE LAW UNDER THE CONSTITUTION. (Ch. 9 state for his offense against its laws.'^ Nor, in such a case, is there any mode in which the state from which he was abducted, or the prisoner himself, can demand and secure his restoration to that state, under the constitution and laws of the Union.** •2 Ker V. Illinois, 119 V. S. 436, 7 Sup. Ot. 225, 30 L. Ed. 425 ; Cook v. Hart, 146 U. S. 183, 13 Sup. Ot. 40, 36 L. Ed. 934 ; In re Mation (D. C.) 34 Fed. 525. See "Extradition," Deo. Dig. (Key No.) § 42j Cent. Dig. § 54. 63 Mahon v. Justice, 127 U. S. 700, 8 Sup. Ot. 1204, 32 L. Ed. 283. See "Ex- tradition," Dec. Dig. (Key No.) § 42; Cent. Dig. § 5i. §§ 117-119) THE ESTABLISHMENT OF REPUBLICAN GOVERNMENT. 309 CHAPTER X. THE ESTABLISHMENT OF REPUBLICAN GOVERNMENT. 117-119. Republican Government Guarantied. 120. Reconstruction. REPUBLICAN GOVERNMENT GUARANTIED. 117. The federal constitutlan provides that "the United States shall guarantee to every state in this Union a republican form of government." 118. A republican government is one in which the poivers of sover- eignty are vested in the people and are exercised by the people, either directly, or through representatives chosen by the people, to ivhom those powers are specially delegated. 119. This clause of the federal constitution implies— (a) A power in the federal authorities to preserve, though not to create, republican governments in the several states. (b) A limitation upon the power of the people of each state in forming or amending their state constitutions. Meaning of the Term. No particular government is designated as "republican," neither is the exact form to be guarantied in any manner especially described. Here, as in other parts of the constitution, we are compelled to resort elsewhere to ascertain what was intended. The guaranty necessarily implies a duty on the part of the states themselves to provide such a government. All the states had governments when the constitution was adopted. In all, the people participated to some extent, through representatives elected in the manner specially provided. These gov- ernments the constitution did not change. They were accepted pre- cisely as they were, and it is therefore to be presumed that they were such as it was the duty of the states to provide. Thus we have unmis- takable evidence of what was "republican" in form within the meaning of the term as employed in the constitution.^ A republican form of government, as distinguished from an autocracy, monarchy, oligarchy, aristocracy, or other form of government, is one which is based on the political equality of men. It is a government "of the people, for the 1 Minor T. Happersett, 21 Wall. 176, 22 L. Ed. 627. 310 THE ESTABLISHMENT OF REPDBLICAN GOVERNMENT. (Ch. 10 people, and by the people." Its laws are made either by the whole people in a body (in which case the form of government is properly called a "democracy") or by representatives chosen for that purpose by the people. Its executive power is lodged in the hands of a chief magistrate, elected by the people, directly or indirectly. It excludes the idea of an hereditary ruler or class of rulers. But the idea of a republic by no means involves the principle of universal suffrage. It is not inconsistent with a republican government that the right to vote should be restricted to adults, males, property owners, or those possess- ing the elements of education. It is only necessary that the suffrage should be generally extended to those deemed competent to exercise it, or at least that it should not be so restricted as to exclude all but a favored class from participation in political rights and privileges. "By the constitution a republican form of government is guarantied to every state in the Union, and the distinguishing feature of that form is the right of the people to choose their own officers for govern- mental administration, and pass their own laws in virtue of the legis- lative power reposed in representative bodies, whose legitimate acts may be said to be those of the people themselves." ' "In a republic all the citizens, as such, are equal, and no one can rightfully exercise authority over another but by virtue of power constitutionally given by the whole community, which authority, when exercised, is in effect the act of the community. Sovereignty resides in the people in their political capacity." ^ Importance of the Guaranty. "Without a guaranty, the assistance to be derived from the na- tional government in repelling domestic dangers which might threaten the existence of the state constitutions, could not be demanded as a right from the national government. Usurpation might raise its stand- ard and trample upon the liberties of the people, while the national 2 In re Duncan, 139 U. S. 449, 11 Sup. Ot. 573, 35 L. Ed. 219 ; Eckerson v. Des Moines, 137 Iowa, 452, 115 N. W. 177. The Initiative and referendum pro- visions in some of the state constitutions are not in conflict vrith this provision of the constitution, as in effect they simply reserve to the people a larger share of legislative power. Kadderly v. Portland, 44 Or. 118, 74 Pac. 710 ; Ex parte Wagner, 1 Okl. Or. 148, 95 Pac. 435. See "Constitutional Law" Dec. Dig. (Key No.) § 82j Cent. Dig. § 149; "Elections," Deo. Dig. (Key No.) § 120; "States," Dec. Dig. (Key No.) § 4; Oent. Dig. § 4. 3 Penhallow v. Doane, 3 Dall. 93, 1 L. Ed. 507. See "States," Dec. Dig. (Key No.) § 4; Cent. Dig, § 2; "United States," Dec Dig. (Key No.) § S; Cent. Dig. §§ 117-119) KEPUBLICAN GOVERNMENT GUARANTIED. 311 government could legally do nothing more than behold the encroach- ments with indignation and regret. A successful faction might erect a tyranny on the ruins of order and law, while no succor could be con- stitutionally afiforded by the Union to the friends and supporters of the government." * Extent of Federal Power. The power and. duty of the United States to guaranty a republican form of government extends not only to the protection of the par- ticular state whose government is threatened, for any cause, with change, but also to the protection of all the other states in the Union. Such is the relation between the several members of the American Union that each has the strongest interest in the maintenance in all the others of republican government. The prosperity, and in some sense the safety, of each and of the whole depends upon the continu- ance in each of those forms and institutions which have come to be accepted as the American exposition of the system of republican gov- ernment. Hence there might possibly be cases in which it would be the right and duty of the federal government to interfere, even al- though the particular state, or all its people, had no disposition to invoke the protection of the guaranty. In effect, the guaranty does not only contain a promise to each state that it shall continue to en- joy a republican form of government as long as the Union endures, but also it imports a command to each state to maintain and preserve that form of government, under penalty of the intervention of the fed- eral Union for the benefit of all its members. But "the authority extends no further than to a guaranty of a republican form of govern- ment, which supposes a pre-existing government of the form which is to be guarantied. As long, therefore, as the existing republican forms are continued by the states, they are guarantied by the federal constitution. Whenever the states may choose to substitute other re- publican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is that they shall not exchange republican for anti-republican constitu- tions, a restriction which, it is presumed, will hardly be considered as a grievance." " *2 Story, Const. § 1814. 5 The Federalist, No. 21. The provision relates to the government of the state at large, and not to the systems of local government provided by the several states for their municipalities. Bckerson v. Des Moines, 137 Iowa, 452, 115 N. W. 1T7. See "States," Deo. Dig. (Key No.) § 4; Cent. Dig. § 2; "United States," Dec. Dig. (Key No.) § 5; Cent. Dig. § 4. 312 THE ESTABLISHMENT OF REPUBLICAN GOVERNMENT. (Ch. 10 "Under this article of the constitution, it rests with congress to decide what government is the estaMished one in a state.' For as the United States guaranty to each state a republican government, congress must necessarily decide what government is established in the state before it can determine whether it is republican or not. And when the senators and representatives of a state are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recog- nized by the proper constitutional authority. And its decision is bind- ing on every other department of the government, and could not be questioned in a judicial tribunal." ' But this power vested in congress does not give it the right to regu- late the elective franchise in the several states, or prescribe the qualifi- cations of voters. It is true that a state might so limit the right of suffrage as practically to restrict all participation in the government to a favored class, and the eifect of such a restriction would amount to the establishment of an oligarchy or aristocracy, which would cer- tainly be incompatible with a republican form of government. And in this extreme case, it might be the duty of congress to interfere. But while congress has the power to determine (and necessarily must determine in any given case) whether the government actually existing in a state is republican or not, it is not authorized to declare that uni- versal suffrage is implied in the idea of a republican government or that such and such restrictions of the right of suffrage are inconsistent with such a form of government.' A Limitation on State Power. When a new state is to be admitted into the Union it is the right and duty of congress, under this clause, to see to it that the form and constitution of government proposed to be adopted is republican. And the determination of congress to that effect, manifested by its admis- sion of the new state, is final and conclusive. So, also, when the people of an existing state undertake to revise or amend the constitution of the state, their power in that regard is, as we have already seen, lim- ited by the clause in question. It would not be lawful for them to make such changes in their constitution as would amount to abolishing « Frantz v. Autry, 18 Okl. 561, 91 Pac. 193. See "Constitutional Law," Deo. Dig. (Key No.) § 62; "States," Dec. Dig. (Key No.) § 4; Cent. Dig. § 2. 7 Luther v. Borden, 7 How. 1, 12 L. Ed. 581. See "States," Deo. Dig. (Key No.) § 4; Cent. Dig. § 2. 8 Fomeroy, Const. Law, § 210. § 120) RECONSTRUCTION. 313 the republican form of government previously existing and setting up in its place an unrepublican form or system. The District of Columbia. Since the District of Columbia is not a "state," it appears that the' United States is under no obligation to guaranty to the District or to its inhabitants a republican form of government. And in fact, the government of the District is not at all in the form of a republic, since its residents have no voice in the selection of those who make their laws, and no power to choose those who shall administer the laws. RECONSTRUCTION. 120. In the esercise of the ■po-wer given by this clause of the consti- tntion, congress, at the close of the late civil tvar, made pro- vision for the reorganization and restoration of legitimate governments, xepnhlican in form, in the states irhich had passed ordinances of secession. The constitutional authority of congress to pass the "reconstruction acts," for the restoration of legitimate governments in the states which had joined in the late rebellion, was derived from this clause.* 9 Texas v. White, 7 Wall. TOO, 19 L. Ed. 227 ; Foster v. Daniels, 39 Ga. 39 ; In re Hughes, 61 N. C. 57. See "States," Dec. Dig. (Key No.) § 4; Cent. Dig. I 2. 314 EXECUTIVE POWER IN THE STATES. (Ch. 11 CHAPTER XI. EXECUTIVE POWER IN THE STATES. 121-123. State Executive Officers. 124-125. Independence of Executive. 126. Powers of Governor. STATE EXECUTIVE OFFICEBS. 121. Tie executive power in each of the states and territories is lodged in a chief magistrate, who is called the "governor." 122. In most of the states, there is a second executive officer, called the "lieutenant governor," urho is to succeed the governor in his office in case of the death, resignation, removal, or disability of the latter. 123. The subordinate officers of a state government, after the gov- ernor and lieutenant governor, are ordinarily as follows: (a) The secretary of state. (b) The state treasurer. (c) The state comptroller. (d) The state auditor. (e) The attorney general. (f) The superintendent of public instruction. The Governor. In each of the states the chief officer of the executive department is called the "governor." In all, he is elected directly by the people.^ His term of office varies, in the different states, from one to four years, and the qualifications necessary to the holding of this office, as well as its salary, are generally prescribed by the constitution.^ He is the official head of the state, and, generally speaking, is its represent- 1 But contested elections for the office of governor are generally to be tried and detertQined by the legislature. In re Senate Resolution, 33 Colo. 307, 79 Pac. 1009. See "States," Dec. Dig. (Key No.) § 41; Cent. Dig. § ^7. 2 See Attorney General v. Common Council of City of Detroit, 112 Mich. 145, 70 N. W. 450, 37 L. R. A. 211 ; State v. Tingey, 24 Utah, 225, 67 Pac. 33. The private secretary to the governor, empowered to assist him in the labors of his office, according to an act of the legislature, is not authorized to discharge the duties of the governor Jn his absence. Hager v. Sidebottom (Ky.) 113 S. W. 870. See "States," Dec. Dig. (Key No.) §§ 41, 50; Cent. Dig. § 47. §§ 121-123) STATE EXECUTIVE OFFICERS. 315 ative in its relations with the other states and with the Union. In each of the organized territories of the United States the executive power is vested in a governor, appointed by the President by and with the advice and consent of the senate, who holds his office for the term of four years unless sooner removed by the appointing power.* The Lieutenant Governor. This officer, in all the states where the office exists, is elected by the people. Where a vacancy in his office exists, it is in some states to be filled by appointment made by the governor,* but in others the president of the senate succeeds to the office." The functions of the lieutenant governor are very limited. In most of the states he acts as president of the senate and has a casting vote. He succeeds to the •office of governor' upon the death, impeachment, resignation, or dis- ability of the incumbent of that office, and becomes the permanent act- ing governor of the state for the remainder of the term, or until the •disability of the governor is removed, and is entitled to draw the salary •of governor.^ But this does not generally create a vacancy in the office of lieutenant governor; the incumbent is vested with the au- thority and performs the duties of governor, but remains officially lieutenant governor.'^ In states where this office does not exist, the president of the senate is generally designated as the person to succeed to a vacancy in the office of governor.* The Secretary of State. This officer is provided for by the constitutions of all the states. He is generally the custodian of the great seal of the state and of its public records and papers of every kind, as also of the laws or acts 8 Rev. St. U. S. § 1841. i State V. Nash, 66 Ohio St. 612, 64 N. B. 558 ; People v. Budd, 114 Cal. 168, 45 Pac. 1060, 34 L. K. A. 46. See "States," Deo. Dig. (Key No.) §§ 42, 51; 'Cent. Dig. §§ ^S, 56. 5 State V. Stearns, 72 Minn. 200, 75 N. W. 210. See "States," Dec. Dig. (Key No.) §§ 42, 51; Cent. Dig. §§ 48, 56. e State V. La Grave, 23 Nev. 216, 45 Pac. 243, 35 L. E. A. 233. See "States," Dec. Dig. (Key No.) §§ 42, 51; Cent. Dig. §§ 48, 56. ' 7 State V. Sadler, 23 Nev. 356, 47 Pac. 450 ; State v. McBride, 29 Wash. 335, 70 Pac. 25. Otherwise in Colorado, where the president pro tempore of the senate performs the duties of lieutenant governor when the latter succeeds to the office of governor. People v. Cornforth, 34 Colo. 107, 81 Pac. 871. See "States," Dec. Dig. (Key No.) §§ 42, 51; Cent. Dig. §§ 48, 56. 8 Clifford V. Heller, 63 N. J. Law, 105, 42 Atl. 155, 57 L. R. A. 312. See ■"States," Deo. Dig. (Key No.) § 41; Cent. Dig. § 47. 316 EXECUTIVE POWER IN THE STATES. (Ch. 11 of the legislature, which he is required to certify and publish, and al- so, in some states, the decisions of the supreme courts and other public documents.* He is generally required to countersign the com- missions of state officers issued by the governor and to keep a record of the same. He has important duties to perform with reference to the chartering of corporations or their formation under the general corporation law of the state, such as recording and filing their ar- ticles of incorporation, which includes a preliminary determination of their sufficiency and conformity to the state law, and issuing char- ters or certificates of incorporation and certified copies thereof, and keeping official lists of the corporations formed under the law of the state, and carrying out the provisions of the law with reference to the admission of foreign corporations to the state.^" In a few states, this officer succeeds the governor in case of the latter's death or disability ; and this is also the law in the territories.^^ The State Treasurer. This officer is charged with the receipt, custody, and disbursement of the money of the state. He and his sureties are held to a very strict measure of responsibility with reference to the safe keeping and proper disbursement of the public funds ; ^^ and he is generally forbidden by law to make any profit out of the management or investment of such money, even such innocent profits as interest on state funds paid 9 It is part of the official duty of the secretary of state to prepare the copies of the laws and journals for the printer. Anderson v. Lewis, 6 Idaho, 51, 52 Pac. 163. The passage of a statute in conformity to the constitution must be proved either by the printed journals of the legislature, or by the certificate of the secretary of state, who is the official custodian of the laws. Happel v. Brethauer, 70 111. 166, 22 Am. Rep. 70. The secretary of state cannot sell the books of. the state on credit, and -if he does he is accountable for their pro- ceeds as if sold for cash. State v. Chilton, 49 W. Va. 453, 39 S. E. 612. Fur- ther as to the duties of the secretary of state, see State v. Dunbar (Or.) 98 Pac. 878, 20 L. R. A. (N. S.) 1015 ; Grant v. Lansdon, 15 Idaho, 842, 97 Pac. 960. See "States," Dec. Dig. (Key No.) §§ 73, 75, 76; Cent. Dig. §§ 74, 76, 77. 10 The secretary of state has no power to take an original certificate of in- corporation filed in his office into another state for use in a prosecution pend- ing there against the officers of the corporation for perjury in swearing to such certificate. Delaware Surety Co. v. Layton (Del. Ch.) 50 Atl. 378. See "States," Dec. Dig. (Key No.) § 68. "State V. Grant, 12 Wyo. 1, 73 Pac. 470; Rev. St U. S. § 1843. See "States," Dec. Dig. {Key No.) §§ 4I, 51, 60; Cent. Dig. §§ 47, 56, 63. 12 State V. Bobleter, 83 Minn. 479, 86 N. W. 461 ; Stuart v. Nance, 28 Colo. 194, 63 Pac. 323. See "States," Dec. Dig. (Key No.) §§ 75, 80; Cent. Dig. §| 76, 80, 81. §§ 121-123) STATE EXECUTIVE OFFICERS. 317 by a bank in which they are deposited being for the use of the state, though it is doubtful whether such lawful gains could be recovered from the treasurer, at the suit of the state, in the absence of a law so providing.^* Subordinate State Officers. Although there is no absolute uniformity in the state constitutions as to the officers composing the remainder of the executive depart- ment, those enumerated above are the ones most commonly provided for. In most of the states, all these officers are to be chosen by the people at a general election.^* But in some, certain of the executive officers are appointed by the governor, and, in a few states, some of them are chosen by the legislature. Where the constitution provides that the executive department of the state shall consist of certain enumerated officers, its purpose is to provide for such executive offi- cers as were deemed absolutely indispensable at the time the constitu- tion was adopted, leaving it to the legislature to create new offices when they became necessary, and to abolish the same. But the legis- lature has no authority to abolish any of those enumerated in the con- stitution.^" These state officers, it should be observed, occupy a posi- tion very different from that of the heads of the executive depart- ments of the United States. They do not form a cabinet or minis- try to the governor. They are not generally chosen by him, nor are they under his direction or control. Their duties and powers are specifically marked out in the constitution, and they are not responsible for their official acts to either the governor or the legislature, but only to the people or the courts.^^ Eligibility and Tenure of Office. In some states it is provided by the constitution (in imitation of the provision in the sixth section of the first article of the constitution of the United States) that no member of the legislature shall be eligible IS State V. Walsen, 17 Colo. 170, 28 Pac. 1119, 15 L. R. A. 456. See "States," Dec. Dig. (Key No.) §§ 75, 76, 80; Cent. Dig. §§ 76, 77, 80, 81. 1* See State r. Thoman, 10 Kan. 191 ; Cunningham v. Sprinkle, 124 N. C. 638, 33 S. E. 138. See "States," Dec. Dig. (Key No.) § 46; Cent. Dig. § 51. 15 Parks V. Commissioners of Soldiers' & Sailors' Home, 22 Colo. 86, 43 Pac. 542. See "States," Dec. Dig. (Key No.) § U; Cent. Dig. § 49. i« But in several states there Is an "executive council," forming an advisory ■cabinet to the governor and charged with certain specific duties, and in some states certain of the oflBcers enumerated above, such as the secretary of state, the state auditor, etc., are ex of&cio members of this council. As to povs^ers and duties of the attorney general of a state, see State v. Ehrlick, 65 W. Va. 318 EXECUTIVE POWER IN THE STATES. (Ch. 11 by appointment or election, during the term for which he was elected^ to any civil office in the state which shall have been created or the emol- uments thereof increased during such term. It is held that this ineligi- bility continues during the entire term for which the member was elected, and he cannot render himself eligible by resigning his member- ship in the legislature." As to the provision occasionally found in the state constitutions, that any state officer who shall accept a free railroad pass shall forfeit his office, it is held that one cannot be de- prived of his office on this ground until he has been adjudged guilty by a court of competent jurisdiction in an appropriate proceeding for that purpose.^* INDEPENDENCE OF EXECUTIVE. 124. The governor is invested with those powers, and charged with. those duties, which, under the American system, are regards ed as executive in their nature, as distinguished from legis- lative and judicial po'wers and duties. 125. In the exercise of his constitutional powers, and in the dis- charge of his constitutional duties, he is independent of the other departments of government and free from any in- terference or obstruction on their part. The constitutional principle which requires that the executive de- partment of government shall be separate from the legislative and judicial departments, and that the head of the one department shall be free and independent in the exercise of his constitutional powers from all control or interference of the others, has been fully consid- ered in the chapter relating to the three departments of government, to which the reader is here referred. In regard to the manner of exercising those powers which the con- stitution specifically confides to the governor, it seems that the legisla- ture, while it cannot, under pretense of regulation, deprive the execu- tive of any branch of his constitutional power, or unduly hinder him in the exercise of it, may yet make rules for his governance in many cases where his authority over the subject is not exclusive of that 700, 64 S. E. 935. As to those of the state auditor, see Dally v. State, 171 Ind. 646, 87 N. B. 4. 17 In re Members of Legislature, 49 Fla. 269, 39 South. 63. See "States," Dec. Dig. (Key No.) § 47; Cent. Dig. § 52. 18 Sweeney v. Coulter, 109 Ky. 295, 22 Ky. Law Rep. 885, 58 S. W. 784. See "States," Dec. Dig. (Key No.) § 52; Cent. Dig. § 57. §§ 124r-125) INDEPENDENCE OF EXECUTIVE. 319 of the legislature, or where the constitution has not furnished the ex- clusive rule for the exercise of the power. While the governor may be called to account, like any other citizen, for the consequences of his private and personal acts, whether the liability therefor is civil or criminal, yet he is not answerable in the courts for any acts performed by him in his official capacity which are political in their character or involve the exercise of his judgment and discretion as governor." For example, it being made the governor's duty to issue a certificate of election to each person elected a represent- ative in congress, the courts have no jurisdiction to enjoin the govern- or from issuing a certificate to an applicant for it, or to compel him to deliver a certificate to another person; for the official acts of the executive can neither be restrained nor coerced by the courts.^" Nei- ther can he be compelled by the courts to appear and testify in relation to matters pertaining to the exercise of his executive functions; nor can he be constrained by attachment to disclose, in aid of an investiga- tion before a grand jury, secrets of the business of the executive de- partment which he does not consider it expedient to reveal."^ IB See pp. 12, m, supra. And see In re Guden, 171 N. Y. 529, 64 N. E. 451 ; Moyer v. Peabody, 212 V. S. 78, 29 Sup. Ct. 235, 53 L. Ed. 410. In Eng- lish law, an ordinary action cannot be maintained against the king. But the subject may proceed by petition of right, which he may now by stat- ute bring in any of the superior courts in which an .action might have been . brought if It had been a question between private parties. This method of procedure is Illustrated In the Bankers' Case, 14 How. St. Tr. 1. The governor of an English colony. is not exempt from being sued for his debts or torts, but If judgment Is given against him, his person Is not liable to be taken in execution while he Is on service. Hill v. Bigge, 3 Moore, P. C. 465. See "States," Dec. Dig. (Key No.) § il; Cent. Dig. § 47. 20 Bates v. Taylor, 87 Tenn. 319, 11 S. W. 266, 3 L. R. A. 316. See "Maiv- damns," Dec. Dig. (Key No.) § 64; Cent. Dig. § 1Z9; "Injunction," Dec. Dig. (Key No.) § 75; Cent. Dig. §§ US, lU, 150; "Constitutional Law," Deo. Dig. (Key No.) §§ 7i-74; Cent. Dig. §§ lSS-131. 21 Hartranft's Appeal, 85 Pa. 433, 27 Am. Rep. 667 ; Thompson v. German Valley R. Co., 22 N. J. Eq. 111. The governor should not be required, by a subpoena duces tecum, to produce in court papers which have been filed with him In his executive capacity, and which are in the nature of petitions or accusations against public officers and demands for their removal. Gray v. Pentland, 2 Serg. & B. (Pa.) 23. See "Constitutional Law," Deo. Dig. (Key No.) g 72; Cent. Dig. § 133. 320 EXECUTIVE POWER IN THE STATES. (Ch. 11 POWERS OF GOVERNOR. 126. Tlie powers and duties of a state governor are ordinarily as follours: (a) He is to take care that the laws of the state are faithfully executed.22 (h) He is to inform the legislature of the condition of the state, and to recommend such measures of legislation as he deems necessary or important, (o) He may require information from the different oficers of the executive department upon subjects relating to the duties of their respective offices. (d) He has the power of appointing certain of the officers of the state, and of removing officers for cause. (e) He is co mman der in chief of the militia of the state. (f) He has the power to grant pardons for offenses against the state, and reprieves. (g) He has the power to convene the legislature in special ses- sion, and to adjourn them in certain cases. (h) He has the power to veto hills passed by the legislature. Appointments to Office. Although, as a rule, the governor has the power of appointing cer- tain of the officers of the state, there is no uniformity, in the different states, as to the officers who come within the appointing power of the executive.^^ In some states, he has a very considerable power in this respect. In others, nearly all the important officers of the state are to be elected, leaving only inferior and subordinate offices to be filled by the governor. For example, in some few states, the judges are to be appointed by the governor, or by the governor and council. But, as a rule, the system of an elective judiciary prevails throughout 22 See Henry v. State, 87 Miss. 1, 39 South. 856 ; In re Opinion of Justices, 74 N. H. 606, 68 Atl. 873 ; Rood v. "Wallace, 109 Iowa, 5, 79 N. W. 449. By virtue of this provision, he is empowered to institute a suit for and in the name of the state. State v. Huston, 21 Okl. 782, 97 Pac. 982. See "States," Deo. Dig. (Key No.) §§ 41, S02; Cent. Dig. §§ ^7, 19Jf. 2 3 See, in general, Attorney General v. Bolger, 128 Mich. 355, 87 N. W. 366; In re Railroad Commissioner, 28 R. I. 602, 67 Atl. 802 ; Cox v. State, 72 Ark. 94, 78 S. W. 756, 105 Am. St. Rep. 17 ; Dust v. Oakman, 126 Mich. 717, 86 N. W. 151, 86 Am. St. Rep. 574; State v. Bristol, 122 N. C. 245, 30 S. E. 1; Monash v. Rhodes, 11 Colo. App. 404, 53 Pac. 236 ; State v. Griffen, 69 Minn. 311, 72 N. W. 117; People v. Nye, 9 Cal. App. 148, 98 Pac. 241; Daniels v. State, 15 Idaho, 640, 98 Pac. 853. See "States," Dec. Dig. (Key No.) §§ 46, 51; Cent. Dig. §§ 51, 56. § 126) POWERS OP GOVERNOR. 321 the country. In some states, appointments made by the governor are to be confirmed by the senate or council; and, although the power of appointment is constitutionally vested in the governor, the legislature may provide that his nominations to office shall be confirmed by the senate.** The courts will not pass on the question whether the gov- ernor, in removing a public officer whom he had the power to remove, acted improperly and without cause.^° But where the constitution gives him power to remove an officer only "for cause," his proceedings, in removing such officer, may be reviewed by the courts on certiorari, since the governor's action is judieipl in its nature; but, out of respect for the chief executive, this writ should not issue against him if there is any other remedy."* Commanding Militia. The governor is commander in chief of the militia of the state, and his authority in this respect is interrupted only when the state troops are called into the actual service of the United States, in which case, by a provision of the federal constitution, the President becomes commander in chief. As commanding the militia, the governor has the power to recruit or fill up the active militia of the state to the maxi- mum limit fixed by statute, and also to disband or muster out, at any time, any company thereof.*^ The governor being invested with au- thority to call out the militia to suppress insurrections, his determina- tion that an insurrection exists and that the intervention of the militia is necessary to quell it is not subject to review by the courts.^* 2* State T. Boucher, 3 N. D. 389, 56 N. W. 142, 21 L. R. A. 539. And see Harrington v. Pardee, 1 Cal. App. 278, 82 Pac. 83 ; Dust v. Oakman, 126 Mleh. 717, 86 N. W. 151, 86 Am. St. Rep. 574. See "States," Dec. Dig. (Key No.) § 46; Cent. Dig. § 51; "Constitutional Law," Deo. Dig. (Key No.) § 58; Cent. Dig. § 88. 2 5 State V. Rost, 47 La. Ann. 53, 16 South. 776. As to the governor's power of removal from office in general, see State v. Peterson, 50 Minn. 239, 52 N. W. 655; State v. Cheetham, 19 Wash. 330, 53 Pac. 349; Benson v. People, 10 Colo. App. 175, 50 Pac. 212. See "Constitutional Law," Dec. Dig. (Key No.) S 73; Cent. Dig. § 1S7; "States," Dec. Dig. (Key No.) § 52; Cent. Dig. § 57. 28 In re Nichols, 6 Abb. N. C. (N. Y.) 474. And see Yoe v. Hoffman, 61 Kan. 265, 59 Pac. 351. See "Certiorari," Dec. Dig. (Key No.) § 25; Cent. Dig. § 38; "States," Dec Dig. (Key No.) § 52; Cent. Dig. § 57. 2 7 Lewis V. Lewelling, 53 Kan. 201, 36 Pac. 351, 23 L. R. A. 510. See "Mili- tia," Deo. Dig. (Key No.) § S; Cent. Dig. § 5. 28 In re Meyer, 35 Colo. 159, 85 Pac. 190, 12 L. R. A. (N. S.) 979, 117 Am. St. Rep. 189. See "Constitutional Law," Dec. Dig. (Key No.) § 73; Cent. Dig. §i 1S4-1S6. Bl.Oon8T.L.(3d.Ed.)— 21 322 EXECUTIVE POWER IN THE STATES. (Ch. 11 Pardons and Reprieves. In many of the states, the power to grant pardons and reprieves is not confided to the governor alone, but is to be exercised by a court of pardons, or board of pardons, of whom the governor must be one> The pardoning power was a branch of the royal prerogative in Eng- land, and has always been regarded, both in that country and in this, as an executive function. Nevertheless, parliament has always claim- ed, and sometimes exercised, the right to pass acts of general amnesty, and this example has occasionally been followed in America. The true doctrine seems to be that the right to accord a pardon for a spe- cific offense to a designated individual is purely an executive power, while it remains competent for the legislative authority to proclaim an act of general amnesty or oblivion for all past offenses of a given class, or growing out of a given event or series of acts, without un- dertaking to designate the individuals who may profit by it.^° "The distinction between pardon, amnesty, and reprieve seems to be that pardon permanently discharges the individual designated from all or some specified penal consequences of his crime, but does not af- fect the legal character of the offense committed ; while amnesty oblit- erates the offense, declares that government will not consider the thing done punishable, and hence operates in favor of all persons involved in it, whether intended and specified or not; and reprieve only tem- porarily suspends execution of punishment, leaving the legal character of the act unchanged and the individual subject to its consequences in time to come." '" ' 29 See State v. Blalock, 61 N. C. 242; State v. Nichols, 26 Ark. 74, 7 Am. Rep. 600. See "Constitutional Law," Dec. Dig. (Key No.) § 58; Cent, Dig. § 87; "Pardon," Deo. Dig. {Key No.) § 4; Cent. Dig. §§ ^-6%. 30 Abb. Law Diet "Pardon." And see State v. Fincli (Or.) 103 Pac. 505. " 'Pardon' and 'amnesty' are not precisely the same. A pardon is granted to one who is certainly guilty, sometimes before, but usually after, convic- tion ; and the court takes no notice of it unless pleaded or in some way claim- ed by the person pardoned ; and it Is usually granted by the crown or by the- executive. But amnesty is to those who may be guilty, and is usually grant- ed by parliament or the legislature, and to whole classes, before trial. Am- nesty Is the abolition or oblivion of the offense; pardon is its forgiveness." State V. Blalock, 61 N. C. 242. Except in so far as permitted by the con- stitution, the governor cannot grant a reprieve or fix the day for the execu- tion of a sentence, as that is a judicial power. Clifford v. Heller, 63 N. J. Law, 105, 42 Atl. 155, 57 L. R. A. 312. See "Pardon," Dec. Dig. (Key No.) B l-Jf, 11; Gent. Dig. §§ J-e%, 2^-26; "Constitutional Law," Dec. Dig. (Key No.} § 79; Cent. Dig. § U2. § 126) POWERS OF QOVERNOB. 323 Pardons are of two sorts, — absolute and conditional. It was a rule of the common law that the king, in granting a pardon, might annex to it any ' condition, precedent or subsequent, on the perform- ance of which the validity of the pardon would be made to depend.^ ^ In our state constitutions this is generally provided for by granting to the executive the power to grant pardons "upon such terms as he shall think proper," or in words of similar import. Even without this specification, it would undoubtedly be competent for the governor, possessing general power to accord pardons, to annex conditions to the grant of a pardon, the only restriction being that the condition must neither be illegal, immoral, nor impossible to be performed. Thus, it is permissible for the governor to grant a pardon upon condi- tion that the convict will leave the state and never return to it,^^ or that the convict shall totally abstain from the use of intoxicating liquors for five years. '.^ Nonperformance of the condition annuls the pardon. That is, in the case of a condition precedent, if the con- vict does not perform it, the pardon never takes effect; and in the case of a condition subsequent, if it is not performed, the pardon be- comes void, and the original sentence remains in full force and may be carried into effect.'* Whether the condition has been kept or broken is a question of fact. And in some states it is held that a convict cannot, on the mere order of the governor, be arrested and remanded to suffer his original punishment because of an alleged nonperform- ance of the condition; but he is entitled to a hearing before a court, and an opportunity to show that he has performed the condition of his pardon, or that he has a legal excuse for not having done so.'° But the general rule is that it rests with the governor alone to de- termine the fact of a breach of the condition, and to order the rearrest of the convict.'" 3i'4 Bl. Comm. 401. 3 2 state v. Wolfer, 53 Minn. 135, 54 N- W. 1065, 19 t,. R. A. 783, 39 Am. St. Rep. 582 ; State v. Barnes, 32 S. C. 14, 10 S. E. 611, 6 L. R. A. 743, 17 Am. St. Rep. 832. See "Pardon," Dec. Dig. (Key No.) § 14; Cent. Dig. §§ 28-31. 83 People V. Burns, 77 Hun, 92, 28 N. T. Supp. 300. See "Pardon," Dec. Dig. (Key No.) § U; Cent. Dig. § 28. 3 4 ria veil's Case, 8 Watts & S. (Pa.) 197. And see Etx parte Kelly (Cal.) 99 Pac. 368, 20 L. R. A. (N. S.) 337. See "Pardon," Dec. Dig. (Key. No.) § U; Cent. Dig. §§ S9-31. 3 5 State v. Wolfer, 53 Minn. 135, 54 N. W. 1065, 19 L. R. A. 783, 39 Am. St. Rep. 582 ; People v. Moore, 62 Mich. 496, 29 N. W. 80. See "Pardon," Deo. Dig. (Key No.) § U; Cent. Dig. § 31. SB Woodward v. Murdock, 124 Ind. 439, 24 N. E. 1047; Ex parte Marks, 64 324 EXECUTIVE POWER IN THE STATES. (Ch. 11 A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may be rejected by the person to whom it is tendered, and, if it is rejected, there is no power in the courts to force it on him." A pardon, to be available in subsequent judicial proceedings, must be pleaded. But a general act of pardon and amnesty promulgated by a public proclamation of the President of the United States has the force of law, and will be judicially noticed by the courts; it need not be specially pleaded by one seeking to take advantage of it.^* A pardon once delivered by the executive authority, and accepted by the grantee, cannot be re- voked by the authority which granted it.'° Where the effect of a conviction for felony is to disqualify the con- vict as a witness, a full and unconditional pardon for such a crime completely restores his competency as a witness, although it may be stated in the pardon that it was given for that very purpose.*" A pardon granted by the President restores the convict to the rights and privileges of a citizen of the United States; but it does not, without the assent of -the state, where the sovereign power had excluded him from political rights, restore him to the exercise of those rights.*^ The pardon will relieve the grantee from all further liability under his original sentence, and also will bar any civil proceedings for any penalties or forfeitures incurred by the same specific acts on which the criminal prosecution was based. *^ But it will not entitle him to a restitution of the fine or costs paid, nor to indemnity for any part of the penalty which he may have paid or suffered. A pardon is not re- Oal. 29, 28 Pac. 109, 49 Am. Rep. 684 ; Ex parte Kennedy, 135 Mass. 48. See "Pardon," Dec. Dig. (Key No.) § U; Cent. Dig. §§ SO, 31. S7 U. S. V. Wilson, 7 Pet. 150, 161, 8 L. Ed. 640; People v. Frost, 117 N. Y. Supp. 524, 133 App. Div. 179. See "Pardon," Dec. Dig. (Key No.) % 8j Cent. Dig. § 15. 8 8 Jenkins v. CoUard, 145 U. S. 546, 12 Sup. Ct. 868, 36 L. Ed. 812. See "Pardon," Dec. Dig. (Key No.) § 15; Cent. Dig. § 32. soRosson v. State, 23 Tex. App. 287, 4 S. W. 897; Knapp v. Thomas, 39 OMo St. 377, 48 Am. Rep. 462. See "Pardon," Deo. Dig. (Key No.) § 10; Cent. Dig. § 23. 40 Boyd V. U. S., 142 U. S. 450, 12 Sup. Ot. 292, 35 L. Ed. 1077; Hoffman V. Coster, 2 Whart. (Pa.) 453. See "Pardon," Dec. Dig. (Key No.) § 9; Cent. Dig. §§ 16-S2. 41 Ridley v. Sherbrook, 3 Cold. (Tenn.) 569. See "Elections," Dec 'Dig. (Key No.) i 94; Cent. Dig. S 91. 48 U. S. V. McKee, 4 Dill. 128, Fed. Cas. No. 15,688. See "Pardon," Deo. Dig. (Key No.) i U; Cent. Dig. § e2. § 126) POWERS OF QOVERNOB. 325 trospective.*' And, further, the remission, by pardon, of a fine or forfeiture cannot divest an interest in either which, by law, has vested in private persons. So far as the public is interested in a fine or pen- alty, the executive remission has the effect to restore it, but, so far as a citizen has a vested right in it, it is beyond the power of the ex- ecutive.** The recital of a specific distinct offense in a pardon limits, its operation to that offense, and such pardon does not embrace any other offense for which separate penalties and punishments are pre- scribed.*" A contract with an attorney at law that the latter shall endeavor to obtain a pardon, and that, if he is successful, a stipulated sum shall be paid for his services, is not in itself illegal.*® But a pardon pro- cured by fraud upon the pardoning power, whether by suppression of the truth, misstatement, suggestion of falsehood, or any other im- position, is absolutely void.*' A pardon granted by one who is de facto the governor of the state is valid, notwithstanding that he has not a perfect title or evidence of title to the office.*' Convening and Adjourning Legislature. Whether or not an occasion exists which demands a special session of the legislature is a matter resting entirely in the judgment of the executive.*" In some of the states it is specially provided in the con- stitution that, when the legislature is called together in special session by the governor, they shall not consider or act upon any subject save that for which they were assembled, or which may have been pre- sented to them by a special message from the governor. Such a pro- vision, it is held, requires that the subject for legislation shall be *3 Cook V. Board of Chosen Freeholders of Middlesex County, 26 N. J. Law, 326. See "Pardon," Dec. Dig. (Key No.) § l4j Cent. Dig. §§ 20-22. *4ln re Flournoy, 1 Ga. 606; 4 Bl. Comm. 399. See "Pardon," Dec. Dig. {Key No.) § U; Cent. Dig. § 20. 4 6 Ex parte Weimer, 8 Blss. 321, Fed. Cas. No. 17-,362. See "Pardon," Dec. Dig. (Key No.) § U; Gent. Dig. § 16. *6 Moyer v. Cantleny, 41 Minn. 242, 42 N. W. 1060. See "Contracts," Dec. Dig. (Key No.) § 129; Cent. Dig. § 629. 4T Rosson V. state, 23 Tex. App. 287, 4 S. W. 89T; 4 Bl. Comm. 400. See "Pardon," Dec. Dig. (Key No.) § 8; Cent. Dig. § U. 48 Ex parte Norris, 8 S. C. 408. See "Pwrdon," Deo. Dig. (Key No.) § 4; Cent. Dig. i 4- 40 In re Veto Power, 9 Colo. 642, 21 Pac. 477; Farrelly v. Cole, 60 Kan. 356, 56 Pac. -492, 44 L. R. A. 464 ; State v. Fair, 35 Wash. 127, 76 Pac. 731, 102 Am. St. Rep. 897. See "Conatittitional Law," Deo. Dig. (Key No.) § 73; Cent. Dig. §§ 134-136. 326 EXECUTIVE POWER IN THE STATES. (Ch. 11 presented to the legislature by the governor in writing/" The business to be transacted at the special session is to be specially named in the executive proclamation or message, but is not to be particularly de- scribed in all its details. The legislature cannot go beyond the limits of the business specially named ; but within such limits it may act freely, in whole or in part, or not at all, as it may deem expedient." And, where there is no such constitutional restriction, the power of the legislature, when so specially convened, is not limited to consid- ering the special subjects which prompted the call, but they may act on any subject, as at a regular session." When the constitution gives the governor power to adjourn the legislature in case of a disagree- ment between the two houses, it is for him alone to decide whether cause exists for the exercise of his power in this regard, and the courts cannot review his decision. °' Executive Approval or Rejection of Bills. '■ The state constitutions provide that every bill which shall have passed the two houses of the legislature shall be submitted to the governor. If he approves it, he shall sign it; if not, he shall return it, with his objections, to the house in which it originated. Under this provision, the bill must be laid before the governor, or the per- son who for the time being is acting as governor, personally, for his revision; it is not enough that it may be left at his ofEce.°* Even when a bill, on its passage through the legislature, receives a larger majority of votes than would be sufficient to pass it over the govern- or's veto, it must be submitted to him for his consideration. He is a part of the lawmaking power of the state, and no act can become a law until he has had the opportunity of considering it. If it seems useless to send to the governor a bill which has already been voted for by more members than would suffice to override his veto, it should be remembered that he gives his reasons for the veto, and those rea- 60 Manor Casino v. State (Tex. Civ. App.) 34 S. W. 769. See "Statutes," Deo. Dig. (Key No.) § 5; Cent. Dig. § i. Bi In re Governor's Proclamation, 19 Oolo. 333, 35 Pac. 530; In re Likins, 223 Pa. 456, 72 Atl. 858. See "Statutes," Dee. Dig. (Key No.) § 5; Cent. Dig. % i- 52 Morford v. Unger, 8 Iowa, 82. See "Statutes," Dec. Dig. (Key No.) § 5; Cent. Dig. § If. 03 In re Legislative Adjournment, 18 R. I. 824, 27 Atl. 324, 22 L. E. A. 716. See "States," Dec. Dig. (Key No.) i S3; Cent. Dig. § Jfi. 64 Opinion of Justices, 99 Mass. 636. See "Statutes," Dec. Dig. (Key No.) f 27; Cent. Dig. § 29. § 126) POWERS OF GOVERNOR. 327 sons may be sufficient to change the vote in one or the other house when the bill is again considered by them.^° A bill which has been sent to the governor may be amended by the legislature within the ten days allowed him for its consideration, but before he has taken action upon it/^ But in some states it is held that, when the bill is in the hands of the governor, it is so far beyond the control of the legislature that neither house alone can recall the bill, and it is doubt- ful whether this could be done by the joint action of both houses." In Colorado, however, it is said that there is no constitutional objec- tion to the legislature's requesting, by joint or concurrent resolution, the return of a bill in the hands of the governor. He need not com- ply with such a request, but there is nothing to prevent him from re- turning the bill as requested, for reconsideration and amendment by the legislature."* The governor usually has ten days within which to determine upon his approval or veto of a bill. In computing this time, either the day on which the bill was received by him or the day of its return is to be excluded; but one is to be included. And, virhere the last of the ten days falls on Sunday, he may return the bill on the following day."* In Vermont, it has been held that when the governor once intentionally and understandingly signs a bill it becomes a law, and it is not divested of that character though he afterwards erases his signature, intending to affix it in another place, but fails to do so.^° But in Illinois the doctrine is that, during the time allowed him, the governor may sign the bill, and then erase his signature, at pleasure. "Until it has passed from his control by the constitutional and cus- tomary modes of legislation, he may reconsider and retract any ap- proval previously made." "^ Notwithstanding some difference of opin- 5 5 state v. Crounse, 36 Neb. 835, 55 N. W. 246, 20 L. R. A. 265. See "Stat- utes," Dec. Dig. (Key No.) § 26; Cent. Dig. § 28. 66 McKenzie v. Baker, 88 Tex. 669, 32 S. W. 1038. See "Statutes," Dee. Dig. (Key No.) § 16; Cent. Dig. § 15. 57 People V. Devlin, 33 N. Y. 269, 88 Am. Dec. 377. See "Statutes," Deo. Dig. (Key No.) § 28; Cent. Dig. §' 30. 6 8 In re Recalling Bills, 9 Colo. 630, 21 Pac. 474. See "Statutes," Deo. Dig. {Key No.) § 28; Cent. Dig. § 30. 6 In re Computation of Time, 9 Colo. 632, 21 Pac. 475. See "Statutes,' Dec. Dig. (Key No.) § 29; Cent. Dig. § 31. 6 National Land & L. Co. v. Mead, 60 Vt. 257, 14 Atl. 689. See "Statutes," Dec. Dig. (Key No.) § 31; Cent. Dig. § S3. 61 People V. Hatch, 19 Ul. 283. See "Statutes," Dec. Dig. (Key No.) § 31; Cent. Dig. § 33. 328 EXECUTIVE POWBK IN THE STATES. (Ch. 11 ion, it may be regarded as the now prevalent doctrine that the power of the governor to approve and sign a bill presented to him within ten days previous to the adjournment of the legislature does not cease with the adjournment, but he may sign the bill after the adjournment, and it thereupon becomes a law."^ Unless the constitution so provides, it is not incumbent upon the governor to return to either house of the legislature any bill or act after it has received his approval and sig- nature; if he reports to either house his approval of the bill, it is a matter of courtesy only.'^ Subsequent approval of an act by the gov- ernor does not dispense with requisites which must exist in order to confer authority on the legislature to pass the act.°* If the governor does not approve the bill, he is to return it, with his objections, to the house in which it originated. This return is usually and properly made by an executive messenger. If the governor, hav- ing announced his intention of vetoing a bill, delivers it to the member who introduced it, on his representation that it was recalled by the house for reconsideration, and the member hands it to private inter- ested parties, it does not become a law under the constitutional pro- vision that if the governor shall not return a bill within ten days it shall be a law in like manner as if he had signed it.°° If the constitu- tion gives the governor power merely to return the bill «with his ob- jections (that is, to veto the bill as a bill), he must treat it as a whole. He cannot disapprove of one item in an appropriation bill and approve all the rest. If he attempts to do this, the bill will be considered as approved as a whole, and every part of it will become law.** When the veto power is given to the governor, it is checked by a provision that bills vetoed by him may be passed over his veto by a prescribed 8 2 People V. Bowen, 21 N. Y. 517; Solomon v. Commissioners, 41 Ga. 157; State V. Board of Sup'rs of Coahoma County, 64 Miss. 358, 1 South. 501. Compare Hardee v. Gibbs, 50 Miss. 802; Fowler v. Peirce, 2 Cal. 165. See •'Statutes," Dec. Dig. (Key No.) § SO; Cent. Dig. § S2. 8 3 State V. Whlsner, 35 Kan. 271, 10 Pac. 852. See "Statutes," Deo. Dig. (Key No.) § 31; Cent. Dig. § 3S. «* Manor Casino v. State (Tex. Civ. App.) 34 S. W. 769. See "Statutes," Dec. Dig. (Key No.) § 52; Cent. Dig. § 50. 8 6 McKenzie v. Moore, 92 Ky. 216, 17 S. W. 483, 14 L. R. A. 251. See "Stat- utes," Dec. Dig. (Key No.) §§ 28, 29, 31,; Cent. Dig. §§ 30, SI, 37. 6 8 Porter v. Hughes, 4 Ariz. 1, 32 Pac. 165. But In Texas, and perhaps, some other states, the constitution provides that the governor may ob'ject to one or more Items of an appropriation bill and approve the rest. See Pickle V. McOU, 86 Tex. 212, 24 S. W. 265 ; May v. Topping, 65 W. Va. 656, 64 S. E. 848. See "Statutes," Deo. Dig. (Key No.) § S3; Cent. Dig. § 36. § 126) POWERS OF GOVERNOB. 329 majority of the members of both houses. It is held that a bill after being so passed over the veto, need not be again signed by the pre- siding officers of the two houses ; such passage makes it ipso facto a law.'^ Bxecutive Construction of Laws. The executive is bound to give effect to the laws which regulate his duties, and in so doing he must necessarily put a construction upon them.'* But a mere ministerial officer cannot be allowed to decide upon the validity of a law, and thus exempt himself from re- sponsibility for disobedience to the command of a peremptory man- damus, his disobedience to the law being the cause of his inability to obey the command of the court.'® State Governors under the Federal Constitution. The constitutional functions of the governor of a state are regu- lated to some extent by the constitution of the United States, and chiefly in relation to matters concerning the intercourse of the states with each other, and to the representation of the state in congress. Thus, by the fourth article of the constitution, a person charged in any state ' with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on demand of the execu- tive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. Again, the United States is bound to protect each state against domestic vio- lence, when application for federal aid is made by the legislature. But when the legislature cannot be convened, the executive of the state may call for such assistance. All executive officers of the several states are required to be bound by oath or affirmation to support the constitution of the United States. When vacancies happen in the representation of any state in congress, the executive authority thereof shall issue writs of election to fill such vacancies. And if vacancies happen in the senate, by resignation or otherwise, during the recess of the legislature of the state, the executive thereof may make tem- porary appointments until the next meeting of the legislature, which shall then fill such vacancies. 87 City of EvansvlUe v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93. See "Statutes,'" Bee. Dig. (Key No.) § 37; Cent. Dig. § 39. 88 u. S. V. Lytle, 5 McLean, 9, Fed. Cas. No. 15,652 ; State v. Hallock, 16 Nev. 373. See "Consiitwtional Law," Dec. Dig. (Key No.) § 78; Gent. Dig. 6 8 People V. Salomon, 54 111. 39. Bee "Mandamus," Dec. Dig. (Key No.) § .186; Cent. Dig. § 4^4. 330 JUDICIAL POWERS IN THE STATES, (Ch. 13 CHAPTER Xn. JUDICIAL POWERS IN THE STATES. 127. System of Courts. 128. Constitutional Courts. 129. Statutory Courts. 130-131. Judges. 132-134. Jurisdiction. 135. Process and Procedure. SYSTEM OF COURTS. 127. The judicial po-nrer of each state is vested in a system, of courts, comprising, generally, three classes — (a) A court of last resort, possessing supreme appellate juris- diction. (b) A number of courts of equal and co-ordinate authority, eacb ivitbin its territorial limits, possessing general original ju- risdiction, civil and criminal. (c) Inferior courts, held by justices of the peace or police magis- trates, possessing jurisdiction of minor civil causes and pet- ty criminal offenses. The system of courts, in respect to its details, varies very greatly in the different states, but in its main features there is a marked similarity of plan. The general design is to establish one court of last resort, which shall have final appellate jurisdiction over all the rest, and a series of inferior courts, territorially distributed through- out the state, possessing general original jurisdiction, civil and crimi- nal, together with certain courts of greatly restricted powers, and usually proceeding without a jury, which are intended for the trial and determination of minor causes. The court of last resort is some- times called the "supreme'' court, sometimes the "court of appeals," sometimes the "court of errors and appeals," and there are some other variations of these names. This court, as a rule, is vested with very narrow original jurisdiction, but with the ultimate appellate jurisdic- tion, both in civil and criminal causes. It also has power to issue various prerogative writs, or other extraordinary remedies, such as the writs of habeas corpus, certiorari, mandamus, injunction, quo warranto, and writs of error. § 127) SYSTEM OF COURTS. 331 Intermediate courts, between the court of last resort and the courts of general original jurisdiction, have been created in several states, in recent times, to relieve the courts of final appeal from a portion of the burden of their constantly increasing labors. These covirts are generally invested with appellate jurisdiction only, and that ju- risdiction is limited to cases not involving more than a certain amount in money, or not involving capital punishment, or not involving ques- tions relating to the constitutionality of statutes, or it may be other- wise restricted, the statutory provisions in this respect not being uni- form. Of this character are the "appellate courts" or "courts of ap- peal" in Illinois, Missouri, California, Colorado, Kansas, Georgia, and some other states, the "appellate division of the supreme court" in New York, and the "superior court" of Pennsylvania. High original jurisdiction is vested in a series of courts, which are called "superior courts," "circuit courts," "district courts," "gen- eral terms of the supreme court," or "courts of common pleas." These courts possess general original jurisdiction of all suits, actions, and judicial proceedings. In some states, they are also vested with ju- risdiction in equity ; in others, there is a separate system of chancery courts. Criminal jurisdiction is vested also in these courts, though in some states they are designated by other names when sitting on the criminal side, such as courts of "oyer and terminer," courts of "quarter sessions," or courts of "general jail delivery." Courts of this class also possess appellate jurisdiction, in some states, from the inferior courts, such as justices of the peace, probate courts, or mu- nicipal courts. Another series of courts is vested with the jurisdiction of the pro- bate of wills, the granting of letters testamentary, and the settlement of the estates of decedents, and generally of the appointment of guardians for minors and the settlement of their accounts. These courts are variously called "probate courts," "surrogates' courts," "orphans' courts," or "courts of ordinary." Justices of the peace are found in all the states, and they are privi- leged to hold courts for the determination of civil cases of minor im- portance, their jurisdiction being usually limited to cases in which the 'amount involved does not exceed a certain small sum, or where the title to real estate does not come into controversy. They are also conservators of the peace, and possess the powers of committing magistrates, and also, in some states, final jurisdiction over minor offenses and breaches of the peace. In many of the states, there are established courts in the larger 332 JUDICIAL POWERS IN THE STATES. (Ch. 12 cities, called "municipal courts," which are invested with a minor civil jurisdiction similar to that of justices of the peace, usually limited to a small sum, and sometimes concurrent, up to that limit, with the ju- risdiction of the circuit or district courts. They usually possess juris- diction in criminal cases, extending to the final trial of minor offenses, such as violations of municipal ordinances or breaches of the peace, which are not triable by jury, and jurisdiction in graver cases to make a preliminary investigation and hold the offender to bail. In some states, they also have appellate jurisdiction over the justices of the peace. , The "police courts" found in some of the states are very similar to the municipal courts just mentioned, except that, as a general rule, they have no civil jurisdiction, being confined to the trial of petty criminal offenses and the preliminary inquiry into felonies and high misdemeanors. The foregoing general view makes no mention of various courts which are peculiar to one or a few of the states. The state judiciary systems, as already observed, are marked by' great diversities in the details. And the limits of the present work do not admit of a review of the powers of such courts as the "corporation courts," "hustings courts," "mayor's courts," "parish courts," "prerogative courts," "re- corders' courts," and others, existing only in a few of the states.^ CONSTITUTIONAI. COURTS. 128. Such courts as are provided for in the constitution of the state can neither be abolished nor changed by the legislature. And \rhatever jurisdiction is intrusted to them by the con- stitution is beyond the reach of the legislature; it can neither be added to, diniinished, nor modified. But the manner of its exercise may be regulated by statute. The judicial department being an independent and co-ordinate branch of the state government, the constitutions do not leave the judicial power to be prescribed and regulated at the discretion of the legislature, but declare, with a greater or less degree of minuteness, in what courts it shall be vested, and place their powers and functions, with more or less precision, beyond the reach of the legislative will. When the constitution of the state provides that the judicial power 1 For more detailed Information tlie reader may consult Stim. Am. St. Law, |§ 550-559. § 128) CONSTITUTIONAL C0UET8. 333 •of the state shall be vested in certain enumerated courts, they are there- by constituted an independent branch of the government, and placed without the limits of legislative interference or control. The legisla- ture cannot lawfully abolish, either directly or indirectly, any consti- tutional court. The judiciary system, as defined in the constitution, •can be changed only by a revision or amendment of the constitution. And when the organic law creates a court and prescribes its jurisdic- tion, its provisions are generally self-executing; that is, as the court does not owe its existence to the legislature, so also there is no neces- sity for the legislature to recognize it or invest it with jurisdiction in order to enable it to proceed to the exercise of its constitutional du- ties and powers.^ Nor can the jurisdiction of the court, as fixed by the constitution, be abridged by the legislative body. For instance, if the jurisdiction of the court is co-extensive with the state, it cannot be territorially restricted by statute.^ So also, it is not competent for the legislature to abolish or abridge the appellate jurisdiction given to any court by the constitution, either directly or by making the judg- ment of an inferior court final and conclusive.* But it is no infringe- ment of the constitutional powers of an appellate court to regulate or point out the mode in which its power shall be exercised, as, when by appeal and when by writ of error. ° And so the establishment, repeal, or alteration of the statute of limitations as to the time of appealing to the supreme court is within the lawful power of the legislature.' And a statute allowing intermediate appeals to inferior courts is not unconstitutional, provided the right of an ultimate appeal to the court ■of last resort, as contemplated by the constitution, is not taken away.'' 2 State T. Gleason, 12 Fla. 190 ; Keady v. Owers, 30 Colo. 1, 69 Pac. 509. But see Cook v. Daugherty, 99 Va. 590, 39 S. E. 223. See "Constituiional Law," Dec. Dig. (Key No.) § 29; Cent. Dig. § 32. 8 Oommonwealth v. Allegheny County Com'rs, 37 Pa. 237. See "Courts," Dec. Dig. (Key No.) § 1; Cent. Dig. § 100. * Anderson v. Berry, 15 N. J. Eq. 232 ; Ex parte Anthony, 5 Ark. 358 ; iLake Erie & W. B. Co. v. Watkins, 157 Ind. 600, 62 N. E. 443 ; State v. Wil- son, 30 Kan. 661, 2 Pac. 828; Brown v. Kalamazoo Circuit Judge, 75 Mich. 274, 42 N. W. 827, 5 L. B. A. 226, 13 Am. St. Eep. 438. See "Constitutional Law," Dec Dig. (Key No.) §§ 56, 111; Cent. Dig. §§ 62, 267. 8 Haight V. Gay, 8 Cal. 297, 68 Am. Dec. 323. See "Constitutional Law," Dec. Dig. (Key No.) § 55; Cent. Dig. § 60. • Page V. Matthews' Adm'r, 40 Ala. 547. See "Appeal and Error," Dec. Dig. i,Key No.) § S38; Cent. Dig. § 1882. T Yalabusha County r. Carbry, 3 Smedes & M. (Miss.) 529. See "Appeal ■ana Error," Dec. Dig. (Key No.) § 2; Cent. Dig. § S. 334 JUDICIAL POWERS IN THE STATES. (Ch. 1^ And if the legislature cannot abridge or restrict the jurisdiction con- ferred on any court by the constitution, so neither can it enlarge such jurisdiction, or grant any species of jurisdiction, where such enlarge- ment or new grant would violate either the letter of the constitution or its plain design with reference to the particular court. For instance,, where the intention of the fundamental law is that the supreme court shall possess and exercise an appellate jurisdiction, and all original jurisdiction is denied to it, or denied except in a few specified cases,, and vested in other courts equally created by the constitution, in such case it is not within the power of the legislature to confer original jurisdiction upon that court.^ And in general, where the jurisdiction of any particular court is limited by the fundamental law, it would be unconstitutional for the legislature to attempt to increase the bound- aries of its jurisdiction. Thus if, under the constitution, justices of the peace have jurisdiction only of actions on contract, it is incom- petent for the legislature to give them jurisdiction of actions for the invasion of the privileges of licensed ferries.' On the same principle, the legislature cannot confer appellate jurisdiction on courts which are restricted by the constitution to the exercise of original jurisdic- tion only.^" Neither can the legislature confer upon one court the functions and powers which the constitution has conferred upon an- other. '^^ STATUTORY COURTS. 129. If tlie constitution empo-nrers the legislature to establish in- ferior courts, it may create, abolish, or modify such courts at its own discretion, and adjust and control the limits of their jurisdiction, subject only to such limitations as may be found in the fundamental lavr. The function of creating courts and investing them with jurisdic- tion is, generally speaking, constitutional rather than legislative. It 8 State V. Bank of East Tennessee, 5 Sneed (Tenn.) 573 ; Ward v. Thomas, 2 Cold. (Tenn.) 565; State v. Jones, 22 Ark. 331. See "Courts," Deo. Dig. (Key No.) §§ 1, Si6; Cent. Dig. §§ 92, 7^6. 9 Gibson v. Emerson, 7 Ark. 172. See "Courts," Dec. Dig. {Key No.) § i; Gent. Dig. § 92; "Justices of the Peace," Dec. Dig. (Key No.) § 32; Cent. Dig. § 72. 10 Deck's Estate v. Gherke, 6 Oal. 666. See "Courts," Dec. Dig. (Key No.y § 1; Cent. Dig. § 92. 11 Zander v. Ooe, 5 Cal. 230. See "Courts," Dec, Dig. (Key No.) § I; Cent^ Dig. §§ 91-106. § 129) STATDTORT COURTS. 335 is not within the general bounds of legislative power to erect tribu- nals of law. But the people, in adopting a constitution, may, and frequently do, leave it to the legislature to provide for the organiza- tion and jurisdiction of the inferior courts. But where the constitu- tion declares that the judicial power shall be vested in certain courts which it names "and in such other courts as the legislature may from time to time establish," these words must be taken as pointing only to a partition of judicial powers. They will not authorize the legislature to abolish any of the constitutional courts, or to divest them of their entire jurisdiction, or, in creating new courts, to invest them with jurisdiction exclusive of that of the constitutional courts, but the leg- islature may vest a portion of this jurisdiction or a concurrent juris- diction, in courts from time to time established.^^ And such a grant of power to the legislature is broad enough to authorize the bestowal of judicial powers and functions, for special purposes, upon boards or bodies whose ordinary duties are not properly judicial. Thus, in In- diana, it is held that the legislature may erect the board of county commissioners into a court which shall have authority to adjudicate upon claims against the county.^' And a general distribution, in the constitution, of the judicial power, not referring to courts-martial, would not be held to prohibit, by implication, the creation of such courts or the grant to them of power to punish by fine.^* A discre- tionary power bestowed by statute on a court may be taken away, in any particular case, by a special act of the legislature, as well as gen- erally by a general act.^° 12 Commonwealth v. Green, 58 Pa. 226; Montross v. State, 61 Miss. 429; State V. La Crosse County Court Judge, 11 Wis. 51. See "Courts," Dec. Dig. (Key No.) § i; Cent. Dig. §§ 1-9, 91-106; "Constitutional Law," Dec. Dig. (Key No.) § 56; Cent. Dig. §§ 63-6.5. 13 State V. Board of Com'rs of Wasliington County, 101 Ind. 69. But, on the other hand, the legislature does not possess the power to create courts for the exercise of legislative or administrative functions, and tribunals creat- ed under such power are courts only in respect to matters of a judicial nature and such as are properly incident thereto. Western Union Tel. Co. v. Myatt (C. C.) 98 Fed. 335. See "Courts," Dec. Dig. (Key No.) § 1; Cent. Dig. §§ j_9_ Ql-106; "Constitutional Law," Dec. Dig, (Key No.) § 56; Cent. Dig. §§ 6-3-65. 14 People v. Danlell, 50 N. Y. 274; Alden v. Fitts, 25 Me. 488. See "Mili- tia," Dec. Dig. (Key No.) § SI; Cent. Dig. §§ 61, 64- 15 People V. Judge of Twelfth Dlst, 17 Cal. 547. See "Statutes," Dec. Dig. (Key No.) § 98; Cent. Dig. § 110. 336 JUDICIAL POWERS IN THE STATES. (Ch. 12 JUDGES. 130. The ooustitutions make provision for the seonrity and inde- pendence of the judges in the exercise of their Judicial functions. 131. While a constitutional court cannot he abolished by the legis- lature, u, judge of a statutory court may be legislated out of office by the abolition of the court. In some few of the states, the judges of the courts are appointed hy the governor; but in a majority, they are elected by the qualified voters. But the constitutions, in fixing their term of office, and in prescribing their compensation and declaring that it shall not be in- creased or diminished during their continuance in office, secure their necessary independence, so far as concerns the interference or con- trol of the legislative body. It is a general rule of constitutional law, applicable to the judges of the courts as well as to other official persons, that when the con- stitution itself has created an office and fixed its term, and has .also declared the grounds and mode for the removal of an incumbent of the office before the expiration of his term, the legislature has no power to remove or suspend the officer for any other reason or in any other mode.^* As to whether a judge can be legislated out of his office by the abolition of the court to which he belongs, there has been some difference of opinion. But the weight of authority seems to teach that if the legislature has the power to abolish the court, it cannot be restrained from so doing by the consideration that a judge would thereby be deprived of his office in a mode not directly contem- plated by the constitution. And where the judge has been elected by the legislature itself, the legislature may curtail the territory of his jurisdiction down to the constitutional minimum, although it thereby diminishes his compensation.^^ 18 Lowe V. Commonwealth, 3 Mete. (Ky.) 237; State v. Emerson, 39 Mo. 80. See "Officers," Dec. Big. (Key No.) §§ 66, 10; Cent. Dig. §§ 96, 98j "Judges," Dec. Dig. (Key No.) § 11; Cent. Dig. §§ 43-i5. 17 Foster V. Jones, 79 Va. 642, 52 Am. Rep. 637. See "Judges," Dec. Dig. (Key No.) § 28; Cent. Dig. § 75. §§ 132-134) JURISDICTION. 337 JTJKISDICTION. 132. The judicial power of a state extends to all cases and contro- versies properly susceptible of judicial determination, ex- cept in so far as such cases or controversies have been vrith- drawn from the cognizance of the state courts by the federal constitution or acts of congress. 133. The jurisdiction of the state courts, in so far as it is fixed by their constitutions, is not subject to the regulation or con- trol of the legislature. 134. It is not competent for the legislature to impose upon judicial officers duties -nrhich are not judicial in their nature. The judicial power of a state differs from that of the United States in this: that while the latter is limited to such subjects, and such controversies between such persons, as the constitution and acts of congress specifically enumerate, the former is general, and extends to all cases and judicial controversies, of every sort and description, and between all classes of persons, except only in so far as it is limited by the provisions of the federal constitution and the acts of congress relating to the jurisdiction of the national courts. The judiciary system created by the federal constitution is entirely disconnected from and independent of the judiciary of the several states. Although the courts of the two systems exist side by side in the same territory, they are as independent as if they had been re- spectively established by two foreign nations. Each is entitled to the uninterrupted exercise of its own powers and functions. Neither may rightfully encroach upon the province of the other. Neither can define, limit, or interfere with the constitutional jurisdiction of the other. Congress has no power to confer jurisdiction or judicial powers, under the constitution, upon the courts of a state. Neither has a state legislature any power to bestow jurisdiction, powers, or func- tions upon the federal courts, or to impose duties upon them under local law, or to annul their judgments or determine their jurisdic- tion.^^ It has been made a question (but not yet decided) whether a state can grant jurisdiction to the courts of another state, or grant to another state the right to authorize her courts to act on certain matters within the first state, or to constitute a court in the first state 18 Ferris v. Coover, 11 Cal. 175; Ex parte Knowles, 5 Cal. 300; Greely V. Tovrasend, 25 Oal. 604; TJ. S. v. Peters, 5 Cranch, 115, 3 I* Ed. 53. See "Courts," Dec. Dig. (Key Vo.) % 1; Cent. Dig. S§ i-9, 91-106. Bl.Oonst.L.(Sd.Eid.)— 22 338 JUDICIAL POWERS IN THE STATES. (Ch. 12 to act upon the rights and property of the citizens of the other state therein.^' Whatever provisions may be found in the state constitution as to the jurisdiction of the courts, or as to the classes of subjects over which they shall have jurisdiction, the legislature is of course bound and limited by such provisions.^" Thus, if, under the constitution, a given court has no jurisdiction of civil proceedings which are not suits, complaints, or pleas, the legislature cannot confer upon it ju- risdiction of contested election proceedings.''^ Furthermore, there is a very important limitation upon the- power of the legislature in dealing with the courts, in this, that it is not competent to impose upon the judges, as such, any duties which are not strictly judicial in their nature. Such was the decision in regard to an early act of congress which required the judges of the circuit courts to examine and certify claims to pensions, their report to be subject to the super- vision of congress or of an executive officer. This statute was re- sisted by the courts, and several of them filed opinions in which they refused to obey its behests, on the ground that it was an attempt to impose upon them duties not belonging to the judicial office, and also to make their judgments subject to the revision of congress or the executive department. ^^ But the same objections do not apply to an act of congress requiring the judges of the circuit courts to appoint supervisors of elections, since this comes within the authority given to congress by the constitution to vest the appointment of inferior officers in the courts of law.^' But if no similar power of appoint- ment is found in the constitution of a state, it is not competent for the legislature to empower the courts to appoint election officers.^* But since it is proper that the courts should have a voice in the selection of their own officers, it is proper to provide that in case of an unde- 19 See Eaton & H. R. Co. v. Hunt, 20 Ind. 457. See "Courts," Deo. Dig. (Key No.) § 1; Cent. Dig. §§ 1-9, 91-106. 2 In re Application of Cleveland, 51 N. J. Law, 311, 17 Atl. 772. See "Con- stitutional Law," Deo. Dig. (Key No.) § 56; Cent. Dig. § 6^. 21 Gibson v. Templeton, 62 Tex. 555. See "Elections," Dec. Dig. (Key No.) § 275; Cent. Dig. § 251. 22Hayburn's Case, 2 Dall. 409, 1 L. Ed. 436; U. S. v. Todd, '13 How. 52, 14 L. Ed. 47, note ; U. S. v. Ferreira, 13 How. 40, 14 L. Ed. 42. See "Con- stitutional Law," Dec. Dig. (Key No.) § 74; Cent. Dig. § 12i. 2 3 In re Supervisors of Election, 2 Flip. 228, Fed. Cas. No. 13,628. See "Constitutional Law," Dec Dig. (Key No.) § 73; Cent. Dig. § 1S7. 2 4 In re Supervisors of Election, 114 Mass. 247, 19 Am. Rep. 341. See "Constitutional Law," Deo. Dig. (Key No.) § 73; Cent. Dig. § iS7. § 135) PROCESS AND PBOCEDURB. 339 cided election for the office of clerk of the court, the court itself shall decide.^' In pursuance of the same general principle it has been held that while the courts are bound to decide the cases duly submitted to them, they are not bound to give written opinions, and the legislature has no power to compel them to do so.^° And some of the appellate courts have refused to obey statutes requiring them to prepare the syllabi to their reported decisions. As a corollary to this general prop- osition it also follows that the judicial powers must be confined to the courts proper, and that it is not competent for the legislature to confer powers which are essentially judicial upon persons or officers who are not recognized by the constitution or statutes as courts or- judges. Thus, a statute giving to masters in chancery authority to grant writs of habeas corpus would be unconstitutional for this reason.^' And the same is true of a law authorizing clerks of courts to fix the amount of bail.^* But a statute providing for the appointment of referees is not unconstitutional on the ground of creating a diversion of judicial, power from its legitimate channels, for referees are sub- ordinate officers of the courts."' PROCESS AND PROCEDURE. 135. Subject to the limitation that the lawful potrers of the courts must not be infringed and that the vested rights of indi- viduals must not be interfered ivith, the process, practice, forms, remedies, and procedure in the courts are subject to the regulation of the legislature at its ourn discretion. The constitution is seldom violated by any statute which has re- lation merely to the form or method of conducting judicial business. Some restrictions, however, may be found in the constitutions of some of the states, and it is scarcely necessary to observe that they must be strictly heeded by the legislative body. Thus, the legislature 25 Lewis V. State, 12 Mo. 128. See "Constitutional Lmo," Dec. Dig. (Key Wo.) ^ 73; Cent. Dig. § 137. 28 Houston V. Williams, 13 Cal. 24, 73 Am. Dec. 565. See "Constitutional Law," Dec. Dig. (Key No.) § 52; Cent. Dig. § 52. 2 7 Shoultz V. McPlieeters, 79 Ind. 373. See "Constitutional Law," Dec. Dig. (Key No.) § 80; Cent. Dig. § ip,. 2 8 Gregory v. State, 94 Ind. 384, 48 Am. Rep. 162. See "Constitutional Law," Dec. Dig. (Key No.) § 80; Cent. Dig. § U6. 2 9 Oarson v. Smitli, 5 Minn. 78 (Gil. 58), 77 Am. Dec. 539. See "Constitvr ticmal Law," Deo, Dig. (Key No.) § 56; Cent. Dig. § 65. 340 JUDICIAL POWEItS IN THE STATES. (Ch. 13 cannot prescribe a form of process at variance with that prescribed by the state constitution; as, for instance, if the constitution directs that every summons shall run in the name of the people, a summons in the form specified by a statute, but not in the name of the people, is defective.'" So the legislature has the power reasonably to regnlate; but not to abolish, either directly or indirectly, the use of the writ of certiorari. 2^ The legislature can constitutionally authorize an ex- ecution issued by a city or county court to run throughout the state. ^^ And it may authorize judges of the superior courts to hold special terms at their discretign,^' or authorize the courts to review their own decrees in equity after the expiratioii of the term at which the decree was made.'* But a case which has been submitted for decision to a court of record is not subject to any control by the legislature.'" And decisions have been rendered against the validity of laws abridging the right of chancery courts to pass upon questions of fact without the intervention of a jury,'^ restricting the privilege of the writ of habeas corpus,'^ and abrogating rules previously adopted by the supreme court in regard to the admission of attorneys to its bar.'' 30 Manville v. Battle Mountain Smelting Co., 17 Fed. 126. See "Constitu- tional Law," Deo. Dig. (Key No.) § 55; Cent. Dig. § 60; "Process," Dec. Dig. (Key No,) § 28; Cent. Dig. § 22. 31 State V. Mayor, etc., of Jersey City, 42 N. J. Law, 118. See "Certiorari," Dec. Dig. (Key No.) § 2; Cent. Dig. § 2; "Constitutional Law," Dec. Dig. (Key No.) § 55; Cent. Dig. § 58. 3 2 Hickman v. O'Neal, 10 Cal. 292. See "Constitutional Law," Dec. Dig. (Key No.) § 253; Cent. Dig. § 732; "Courts," Cent. Dig. §§ 99, 439. SB Grinad v. State, 34 Ga. 270. See "Courts," Dec. Dig. (Key No.) § 64; Cent. Dig. § 221. 34 Longworth v. Sturges, 4 Ohio St. 690. See "Courts," Dec. Dig. (Key No.) §§ 1, 2iO; Cent. Dig. §§ 92, 712. 3 5 Lanier v. Gallatas, 13 La. Ann. 175. See "Constitutional Law," Dec. Dig. (Key No.) § 57; Cent. Dig. § 66. 86 Detroit Nat. Bank v. Blodgett, 115 Mich. 160, 73 N. W. 120. See "Con- stitutional Law," Dec. Dig. (Key No.) §' 55. 37 In re Boyett, 136 N. C. 415, 48 S. E. 789, 67 L. B. A. 972, 103 Am. St. Rep. 944. See "Constitutional Law," Dec. Dig. (Key No.) § 52. 8 8 In re Day, 181 111. 73, 54 N. E..646, 50 L. R. A. 519. See "Constitutional Law," Dec. Dig. (Key No.) % 52; Cent. Dig. § SS. § 136) LEGISLATIVE POWER IN THE STATES. 341 CHAPTER Xm. LEGISLATIVE POWER IN THE STATES. 136. Organization and Government of Legislature. 137. Legislative Power of States in General. 138-140. Limitations Imposed by tbe Federal Constitution. 141. Implied Limitations in State Constitutions. 142. Private, Special, and Local Legislation. 143-144. Delegation of Legislative Powers. 145-146. Enactment of Laws. 147-149. Title and Subject-Matter of Statutes. ORGANIZATION AND GOVERNMENT OF I,EGISI.ATTJRE. 136. By constitntional provisioiis in the several states, or by com- mon purliamentary lavr, the state legislature has the po'nrei>-' (a) To make rules for its oivn government and for the regulation of its legislative proceedings. (b) To choose its own officers in each house, (c) To exercise an exclusive right of determination upon the elec- tion and qualification of its own members. (d) To control and discipline its members, for disorderly or con- temptuous behavior, even to the extent of expelling them. (e) To appoint committees and define their powers, and authorize them to send for persons and papers in the course of their investigations. (f ) To punish persons who may be guilty of contempts against it or breaches of its privileges. (g) To secure the uninterrupted service of all its members on the public business, by the exemption of each member from ar- rest on civil process while engaged in parliamentary duties or -while going to or returning from the seat of government, (h) To keep, in each house, a journal of its proceedings, the pub- lication and amendment of which are -within its power and discretion. Apportionment of Members. The apportionment of senators and representatives among the sev- eral counties or districts of the state may be prescribed by the con- stitution, but is more generally left to the discretion of the legislature, and it may be changed as the growth of population or the public con- venience may require, except where the constitution provides for peri- odical apportionments, in which case the legislature has no authority 342 LEGISLATIVE POWBE IN THE STATES. (Ch. 13 to act save at the designated times.^ This is a political function, and the courts have no power either to make an apportionment or to re- view one made by the legislature, except in so far as constitutional directions or restrictions may be involved.^ Terms of Office. The term of office of senators and representatives is fixed by the constitution, but if that instrument does not expressly provide when they shall begin, the legislature has power to fix the commencement of the terms by statute.^ Compensation of Members. Where the constitution forbids an increase of the salary of mem- bers of the legislature, to take eifect during the term of office of the legislature voting it, that body may lawfully vote an increase of the compensation of its members to take effect at the next ensuing term, and this will not disqualify the legislators voting for it from re-elec- tion to the next house.* Sessiofis. The constitutions generally provide that sessions of the legislature shall be held at a certain place, usually the state capital, and at desig- nated times, except that the governor may direct the legislature to con- vene at some other place in certain emergencies," and that he may call a special session of the legislature when in his judgment it is necessary or desirable ; but in the latter case the legislature is generally restricted to the transaction of such business as is specified in the gov- ernor's proclamation or message.' In many states it is provided that the doors of the legislature shall be open or that its sessions shall be public. 1 People V. Hutchinson, 172 111. 486, 50 N. E. 599, 40 L. B. A. 770. See "States," Dec. Dig. {Key No.) § 27; Cent. Dig. §§ 28-33. 2 Richardson v. McChesney, 108 S. W. 322, 32 Ky. Law Rep. 1237, 15 L. B. A. (N. S.) 801; State v. Schnitger, 16 Wyo. 479, 95 Pac. 698; Wheeler V. Herbert, 152 Oal. 224, 92 Pac. 358; Williams v. Secretary of State, 14o Mich. 447, 108 N. W. 749. See Prouty v. Stover, 11 Kan. 235. See "Constitu- tional Law," Deo. Dig. {Key No.) §§ 68, 70; Gent. Dig. §§ 127, 132, 137. 3 Farrelly v. Cole, 60 Kan. 356, 56 Pac. 492, 44 L. R. A. 464. See "States," Deo. Dig. (Key No.) § 28; Gent. Dig. § 36. 4 State V. Scott, 105 Minn. 513, 117 N. W. 1044. See "States," Deo. Dig. {Key No.) § 63; Cent. Dig. § 65. B See Taylor v. Beckham, 108 Ky. 278, 56 S. W. 177, 49 L. R. A. 258, 94 Am. St. Rep. 357. See "States," Dec. Dig. {Key No.) § 32; Cent. Dig. § 40. 6 People V. District Court of Arapahoe County, 23 Colo. 150, 46 Pac. 681 ; § 136) OEGANIZATION AND GOVERNMENT OF LEGISLATURE. 343 Rules of Procedure. Either by constitutional provision or by common parliamentary law each house of a state legislature has power to make its own rules of procedure and to change them from time to time at its own pleasure and discretion; and whether the house, in its legislative action, has observed or disregarded its own rules is not a question for the courts to consider.' This power of the legislature necessarily includes the power to grant members leave of absence, to excuse them from voting, when proper, and to recognize what are called, in parliamentary lan- guage, "pairs." ^ The state constitution sometimes fixes the number of members of either house who shall constitute a quorum for the transaction of business. If it does not, the number may be fixed by a rule of the house. In the absence of either a constitutional provision or a rule, the general rule is that a majority of the members of the house will constitute a quorum.* OMcers. As a general rule, each house of the legislature has the power to choose its own officers, although, in some states, the power of the sen- ate or upper house to choose its presiding officer is taken away by the constitutional assignment of that position to the lieutenant governor. Besides the presiding officer, each house of a state legislature generally elects a clerk, sergeant at arms, and doorkeeper. Committees. Legislative committees play an important if not an essential part in the modern conduct of legislative business; and while of course no law-making body could surrender or delegate its powers to its own committees, these are exceedingly useful in framing rules, investigating the various subjects of proposed legislation, drafting bills, and recom- mending the enactment of laws. Indeed in several states the consti- Presldio County v. City Nat. Bank, 20 Tex. Civ. App. 511, 44 S. W. 1009; Manor Casino v. State (Tex. Civ. App.) 34 S. W. 709; In re Governor's Proc- lamation, 19 Colo. 333, 35 Pae. 530; Morford v. Unger, 8 Iowa. 82; In re Likins, 223 Pa. 456, 72 Atl. 858. See "Statutes," Deo. Dig. (Key No.) § 5; Cent. Dig. § 4- 7 French v. State Senate, 146 Cal. 604, 80 Pac. 1031, 60 L. R. A. 550; Smith V. Jennings, 67 S. C. 324, 45 S. E. 821 ; United States v. Ballin, 144 U. S. 1, 12 Sup. Ct. 507, 36 L. Ed. 321; Conek v. Skeen (Va.) 63 S. E. 11. See "States," Dec. Dig. (Key No.) § 35. 8 Wise V. Bigger, 79 Va. 269. See "State's," Dec. Dig. (Key No.) § 3S. » State V. Ellington, 117 N. O. 158, 23 S. E. 250, 30 L. R. A. 532, 53 Am. St. Rep. 580. See "States," Dec. Dig. (Key No.) § 33; Cent, Dig. § 41. 344 LEGISLATIVE POWER IN THE STATES. (Ch. 13 tutions provide that no bill shall be passed until it has been referred to a committee and reported therefrom. The power to appoint such committees and define their duties and authorize them to summon wit- nesses before them is derived expressly or by necessary implication from the constitutions.^" Whether a committee may be authorized to sit and transact its business during the vacation of the legislature de- pends on local constitutional rules.^^ Election and Qualification of Members. The power to determine whether a person claiming to be a member of the state legislature was duly elected and is qualified to take his seat belongs exclusively to that house of the legislature of which he pro- fesses to be a member ; and its decision of the question cannot be chal- lenged or inquired into by the executive or the judicial department.^" Thus, until the house has declared that a vacancy exists by reason of a member becoming disqualified, the courts cannot so declare and order an election to fill the vacncy.^^ But this does not prevent a court, on application by one claiming to be elected to the legislature for a man- damus to compel the canvassing board to issue to him a certificate of election, from determining whether or not he is eligible to the office.^* The qualifications of members are fixed by the constitution, and its 10 See State v. Guilbert, 75 Ohio St. 1, 78 N. E. 931; State v. Blake, 69 Conn. 64, 36 Atl. 1019 ; Tyler v. State (Ala.) 48 South. 672 ; State v. Frear, 138 Wis. 173, 119 N. W. 894. See "States," Dec. Dig. (Key No.) § S4j Cent. Dig. § 42; "Statutes," Dec. Dig. (Key No.)\^ IS; Cent. Dig. § 10. 11 See Tipton v. Parker, 71 Ark. 193, 74 S. W. 298; Ex parte Caldwell (C. C.) 138 Fed. 487. See "States," Deo. Dig. (Key No.) § S4; Cent. Dig. § 42. 12 Coffin V. Coffin, 4 Mass. 1, 3 Am. Dec. 189; Opinion of the Justices, 56 N. H. 570; Mills v. Newell, 30 Colo. 377, 70 Pac. 405; Sherrlll v. O'Brien, 188 N. y. 185, 81 N. E. 124, 117 Am. St, Rep. 841 ; Corbett v. Naylor, 25 R. I. 520, 57 Atl. 303 ; Attorney General v. Board of Canvassers of Seventh Sen atorial Dist, 155 Mich. 44, 118 N. W. 684 ; People v. Mahaney, 13 Mich. 481 Ellison V. Barnes, 23 Utah, 183, 63 Pac. 899 ; State v. Schnitger, 16 "Wyo. 479, 95 Pac. 698. Bee "Constitutional Law," Dec. Dig. (Key No.) § 68; Cent, Dig. § 12T; "States," Dec. Dig. (Key No.) § 30; Cent. Dig. § 39. 18 Covington v. BufEett, 90 Md. 569, 45 Atl. 204, 47 L. B. A. 622. See "Con- stitutional Law," Dec. Dig. (Key No.) § 68; Cent. Dig. § J27; "States," Deo. Dig. (Key No.) | SO; Cent. Dig. § 39. 14 People v. State Board of Canvassers, 129 N. T. 360, 29 N. E. 345, 14 L. R. A. 646; State v. Scott, 105 Minn. 513, 117 N. W. 1044. See Attorney General v. Board of Canvassers of Seventh Senatorial Dist., 155 Mich. 44, 118 N. W. 584. See "Constitutional Law," Dec. Dig. (Key No.) § 68; Cent. Dig. f 127; "States," Dec Dig. (Key No.) § SO; Cent. Dig. § 39; "Manda- mus," Cent. Dig. § 383. § 136) ORGANIZATION AND GOVERNMENT OF LEGISLATURE. 345 provisions in that respect are generally imperative/" though it has been held that a constitutional requirement that each member shall take an oath to support the constitution is merely directory, at least to the extent that the omission to take the oath does not affect the validity of statutes regularly enacted.^® It is to be observed that the legislature cannot add any new or different qualification for membership, or im- pose any restrictions upon eligibility, beyond those prescribed by the constitution.^^ Expulsion of Members. The power of expelling members for adequate cause is generally granted in the constitution, but it would necessarily exist even with- out constitutional sanction, as it is a power which is indispensable for the proper discharge of those functions for which the legislature is created. The reasons for the expulsion, and the question whether ^the member was duly heard before sentence was passed upon him, cannot be inquired into by the courts in any collateral proceeding.^* Punishment of Contempts. In most of the states, the constitution gives power to each house of the legislature to punish its own members for disorderly conduct ; and in many, by constitutional grant of authority, either house may punish any person not a member for disorderly or contemptuous conduct, though such punishment must not extend beyond the final adjournment of the session. But no American legislative body may claim such plenary power to punish for contempt as is possessed by the higher courts of justice. It seems clear that any person who violates the priv- ilege of a member from arrest is in contempt of the house, and may be punished therefor by common parliamentary law. Again, any person guilty of violent, tumultuous, or disorderly behavior in the presence of the house is certainly, liable to punishment. But, beyond this point, the power of legislative bodies to punish for contempts is not very clearly settled. The question of the extent of this power chiefly arises IB State v. Scott, 105 Minn. 513, 117 N. W. 1044. See "States," Dec. Dig. {Key No.) §§ 2S, SO; Cent. Dig. §§ 35, 39. 16 Hill V. Boyland, 40 Miss. 618. See "Constitutional Law," Dec. Dig. (Key No.) § 35; Cent. Dig. § 34%; "States," Cent. Dig. § 35. 17 People V. Board of Election Com'rs of City of Ctiicago, 221 111. 9, 77 N. B. 321. See "Constitutional Law," Deo. Dig. (Key No.) § 50; Cent. Dig. I§ 48, 49. 18 Hiss V. Bartlett, 3 Gray (Mass.) 468, 63 Am. Dee. 768. And see French v. State 'Senate, 146 Cal. 604, 80 Pac. 1031, 69 L. R- A. 556. See "Constitutional Law," Dec. Dig. (Key No.) § 70; Cent. Dig. §§ 129, 137. 346 LEGISLATIVE POWEE IN THE STATES. (Ch. 13 when it is sought to compel a witness to appear before a house of the legislature, or a committee of the same, and answer questions.^' In the case of congress, this power depends upon the nature of the in- quiry conducted by the committee. If the inquiry relates to the organ- ization or government of the house, the election or qualification of its members, the observance of its lawful rules, the privilege of its mem- bers, or to impeachment proceedings, it is within the jurisdiction of the house, and the witness may be punished if contumacious. But the courts are unwilling to extend the power beyond these limits.^" In regard to the state legislatures, the power to punish for contempt apparently extends to all cases of witnesses before the house or a committee where the subject of investigation is properly legislative; that is, where it relates to the organization or government of the house, the election or privileges of its members, or some subject of in- tended or contemplated legislative action. Thus, a committee trying a contested election of a member of the house may summon witnesses, and i"f they refuse to appear, or to answer proper questions, they are in contempt of the house and may be punished.''^ In a recent case it was held that a resolution of the United States senate appointing a committee to investigate newspaper charges of bribery and corruption of senators in connection with certain items of a tariff bill then pend- ing, and to ascertain whether any senator had been or was engaged in speculating in stocks likely to be affected by such items, embraced a matter properly and constitutionally within the cognizance and juris- diction of the senate; and a witness before such committee, refusing to answer proper and pertinent questions, was rightly punished for his contumacy.^^ In another case it was ruled that an inquiry who, if 19 See In re Davis, 58 Kan. 368, 49 Pac. 160; Ex parte Parker, 74 S. C. 466, 55 S. E. 122, 114 Am. St. Rep. 1011 ; Lowe v. Summers, 69 Mo. App. 637. See "States," Dec. Dig. (Key No.) § 40; Cent. Dig. § 46. 20 See Kilbourn v. Thompson, 103 U. S. 168, 26 L. Ed. 377. Congress has enacted a law (Rev. St. U. S. § 102 [U. S. Comp. St. 1901, p. 55]) that any person who, being summoned to appear as a witness before either house or a committee of either house, to give testimony or produce papers upon any matter under inquiry by the house, shall willfully make default, or who, having appeared, refuses to answer any pertinent question, shall be guilty of a misdemeanor, and punished by fine and Imprisonment. The constitutional- ity of this act has been sustained. Chapman v. U. S., 5 App. D. O. 122. See "United States," Dec. Dig. (Key No.) § 21; Cent. Dig. § 13. 21 In re Gunn, 50 Kan. 155, 32 Pac. 471, 19 L. R. A. 519. See "States," Dec. Dig. (Key No.) § 40; Cent. Dig. § i6. 22 Chapman v. U. S., 5 App. D. O. 122. And see Ex parte McCarthy, 29 § 136) ORGANIZATION AND GOVERNMENT OP LEGISLATURE. 347 any one, had violated a rule of the senate which requires that all treaties laid before them shall be kept secret until the senate shall take off the injunction of secrecy, is a matter withip the jurisdiction of the senate; and a witness summoned before the senate on such an inquiry, who re- fuses to respond to proper questions put to him, may be punished for contempt.^^ But an investigation instituted by a house of the legis- lature for the mere purpose of discovering certain facts, or for polit- ical purposes, not connected with any intended legislation or other mat- ters upon which the house could act, is not a legislative proceeding, and a witness cannot be compelled to appear and answer questions.^* And it should be remembered that it is always the privilege of the -citizen to be excused from responding to any questions the answers to which might tend to criminate .him or furnish a link in a chain of crim- inal evidence against him. And what the courts cannot compel him to do, in this respect, cannot be required of him by a legislative body or one of its committees.^ ^ It has also been held that congress can- not compel the production of private books and papers of citizens for its inspection, except in the course of judicial proceedings or in suits instituted for that purpose, and then only upon averments that its rights in some way depend upon the evidence therein contained. Con- sequently a committee of congress, or a commission appointed by it, •cannot compel a private person thus to exhibit his books and papers for their examination, nor punish him for contumacy or contempt if he refuses to obey their command in that behalf.^® A person who has been punished by imprisonment for a contempt of a house of the legislature cannot maintain an action in damages against the members who voted to punish him, or the sergeant at arms who obeyed the com- mand of the house, as for an unlawful and malicious arrest and im- prisonment.^' €al. 395 ; Bx parte Lawrence, 116 Cal. 298, 48 Pae. 124. See "States," Dec. Dig. (Key No.) § 40; Cent. Dig. § 46; "United States," Dec. Dig. (Key No.) I 21; Cent. Dig. § 13. 2 3 Ex parte Nugent, 1 Am. Law J. (N. S.) 107, Fed. Cas. No. 10,375. See ^'United States," Dec. Dig. (Key No.) § 21; Cent. Dig. § 13. 2i People y. Keeler, 99 N. Y. 463, 2 N. E. 635, 52 Am. Rep. 49. See "States," Dec. Dig. (Key No.) § ^0; Cent. Dig. § 46. 25 In re Emery, 107 Mass. 172, 9 Am. Rep. 22. See "Witnesses," Dec. Dig. ■(Key No.) § 293; Cent. Dig. § 1011. 2 8 In re Pacific Railway Commission, 32 Fed. 241. See "United States," Dec. Dig. (Key No.) § 23; Cent. Dig. § 15. 2 7 Oanfield v. Gresham, 82 Tex. 10, 17 S. W. 390. See "States," Dec. Dig. •{Key No.) § ^0; Gent. Dig. §§ 43, ^6. 348 LEGISLATIVE POWEK IN THE STATES. (Ch. 13 Privilege of Members from Arrest. The constitutions of most, if not all, of the states provide that mem- bers of the legislature shall be privileged from arrest, except for trea- son, felony, or breach of the peace, while in, attendance upon a ses- sion of the legislature ; and in some states this privilege also embraces the time which may be reasonably required by them for going to and returning from the place of meeting of the legislature. In some states, though not all, the members are also exempt from service of any civil process. This is the case, for example, by constitutional provision, in Kansas, and it is there held that service of original process upon a member during the session is entirely void, and gives the court no jurisdiction over the person of such member.''^ But, if the constitu- tional privilege extends only to arrest on a charge of crime, this will not prevent the service of a summons or other process in a civil ac- tion, not involving the arrest and detention of the person of the legis- lator.^' It would, however, prevent his being taken upon a capias, or the service of any writ the disobedience to which would be punishable by attachment of the person. Journals. In nearly all the states the constitutions provide that each house of the legislature shall keep a journal of its proceedings, and publish the same, excepting such parts as may require secrecy. The journal is a daily record of the proceedings of the house. It is kept by the secretary or clerk, and in it are entered the appointment and action of committees, the introduction of bills, motions, the votes and resolu- tions of the house, and such other matters as the house may direct to be spread upon the journal, in the order of their occurrence. It is held in some states that it is not permissible to go behind an enrolled statute, in seeking to show that it was not duly passed. But in other states (probably a majority) it is considered that, if an allegation is put forward that the act in question was not passed by the legislature 2 8 Cook V. Senior, 3 Kan. App. 278, 45 Pac. 126. So also In West Vir- ginia. Pittinger v. Marshall, 50 W. Va. 229, 40 S. E. 342. See "States," Dec. Dig. {Key No.) § 28; Cent. Dig. §§ 3iS7; "Arrest," Cent. Dig. §§ 23, 142; "Process," Cent. Dig. §§ UO-U^, Hi, U5, 153, 15i. 2 Rhodes V. Walsh, 55 Minn. 542, 57 N. W. 212, 23 h. R. A. 632; Gentry V. Griffith, 27 Tex. 461. But compare Miner v. Markham (C. C.) 28 Fed. 387. See "States," Deo. Dig. (Key No.) I 88; Cent. Dig. §§ Si-St; "Arrest," Cent, Dig. §§ 23, 142; "Process," Cent. Dig. §§ 140-142, 144, US, 153, 154. § 136) OKGANIZATION AND GOVERNMENT OF LEGISLATURE. 349 in the form and manner required by the constitution, recourse may be had to the journals of the legislature to determine the question.'" The legislature may at the same or a subsequent session correct its journals, by amendments which show the true facts as they actually occurred, when it is satisfied that by neglect or design the truth has been omitted or suppressed.^ ^ Bribery of Legislators and Lobbying. The attempt to bribe a member of the legislature is made a criminal offense, either by the constitution or a statute, in all the states, as is also the taking of a bribe by such member." Moreover, the law sets its face severely against lobbying. In two states this is made a felony by the constitution. '' And in all, the courts refuse to lend their aid in the enforcement of contracts for lobby services, declaring all such agreements to be immoral and void. "A contract for lobby services, for personal [or political] influence, for mere importunity to members of the legislature or other official body, for bribery or corruption, or for seducing or influencing them, for any other arguments or persua- sions or inducements than such as bear directly and legitimately upon the merits of the pending application, is illegal and against public policy and void." '* . In a case before the supreme court of the United so state V. Hocker, 36 Fla. 358, 18 South. 767; State of Illinois v. Illinois Cent. R. Co. (a C.) 33 Fed. 730; Opinion of Justices, 52 N. H. 622; State V. Francis, 26 Kan. 724; Chicot County v. Davies, 40 Ark. 200; Glidewell V. Martin, 51 Ark. 559, 11 S. W. 882 ; Wise v. Bigger, 79 Va. 269 ; Hunt v. State, 22 Tex. App. 396, 3 S. W. 233; Attorney General v. Rice, 64 Mich. 385, 31 N. W. 203 ; Marshall Field v. Clark, 143 U. S. 649, 12 Sup. Ct. 495, 36 L. Ed. 294; United States v. BaJlin, 144 U. S. 1, 12 Sup. Ct. 507, 36 L. Ed. 321 ; State v. Smith, 44 Ohio St. 348, 7 N. B. 447, 12 N. E. 829 ; State v. Erickson (Mont.) 102 Pae. 336; State v. Bowman (Ark.) 118 S. W. 711. See "States," Dec. Dig. (Key No.) § 37; Cent. Dig. § U; "Statutes," Dec. Dig. {Key No.) §§ 18, 285; Cent. Dig. §§ 17, 27, S84, 385. 81 Turley v. Logan Co., 17 111. 151. See State v. Martin (Ala.) 48 South. 846. See "States," Dec. Dig. (Key No.) § 37; Cent. Dig. § U- 8 2 See French v. State Senate, 146 Cal. 604, 80 Pac. 1031, 69 L. R. A. 556. See "Bribery," Dec. Dig. (Key No.) % 1; Cent. Dig. § 3. 33 Const. Cal. art. 4, § 35 ; Const. Ga. art. 1, §§ 2, 5. The constitution of California, as above, defines "lobbying" as "the seeking to influence the vote of a member of the legislature by bribery, promise of reward, intimidation, or other dishonest means." 84 McKee v. Cheney, 52 How. Prac. (N. Y.) 144. See, also, Sweeney v. Mc- Leod, 15 Or. 330, 15 Pac. 275; Coquillard's Adm'r v. Bearss, 21 Ind. 479, 83 Am. Dec. 362; 2 Pars. Cont. (8th Ed.) 878; Bish. Cont. § 499. See "Con- tracts," Dec. Dig. (Key No.) § 126; Cent. Dig. §§ 5S7-5S9. 350 LEGISLATIVE POWER IN THE STATES. (Ch. 13 States it was said, after referring to a number of decisions : "The sum of these cases is : First, that all contracts for a contingent compensa- tion for obtaining legislation, or to use personal or any secret or sinister influence on legislators, are void by the policy of the law. Second, secrecy as to the character under which the agent or solicitor acts tends to deception and is immoral and fraudulent ; and where the agent contracts to use secret influences, or voluntarily, .without contract with his principal, uses such means, he cannot have the assistance of a court to recover compensation." ^° It is even held that a contract stipulating a compensation for services to be rendered in procuring an act to be passed by the legislature for the benefit of the party promising to pay is contra bonos mores, and cannot be enforced, even though no im- proper means are alleged or shown to have been resorted to by the agent in obtaining the passage of the act.'" And a contract by which one agrees to "use his utmost influence and exertions" to procure the passage of a bill is void as against public policy ; for it tends directly to secret, corrupt, and improper tampering with legislative action.'^ On the same principle, an agreement by which one contracts to withdraw or withhold his opposition to a pending legislative measure, for a consideration in money or other thing of value, is, void.'* But it does not follow that a person interested in pending legisla- tion may not employ agents or attorneys to represent, in a proper manner and at a proper time and place, his reasons for desiring or opposing the passage of the bill. Such contracts are frequently made, and are valid at law, and perfectly consistent with the nicest sense of honor.'" "It is allowable," says the court in New York, "to employ counsel to appear before a legislative committee, or before the legis- lature itself, to advocate or oppose a measure in which the individual has an interest." *° "We entertain no doubt that an agreement, ex- 3 5 Marshall v. Baltimore & O. R. Co., 16 How. 314, 14 L. Ed. 953. See "Contracts," Dec. Dig. (Key No.) ? 126; Cent. Dig. §§ 587-589. 3 6 Gil V. Williams & Davis, 12 La. Ann. 219, 68 Am. Dec. 767. See "Con- tracts," Dec. Dig. (Key Tio.) § 126; Cent. Dig. §§ 587-589. 37 Mills v. Mills, 40 N. Y. 543, 100 Am. Dec. 535. See "Contracts," Dec. Dig. (Key No.) § 126; Cent. Dig. §§ 587-589. 8 8 Smith v. Applegate, 23 N. J. Law, 352. But compare Edwards v. Rail- Way Co., 1 Mylne & O. 650. See "Contracts," Dec. Dig. (Key No.) §§ 108, 126; Cent. Dig. §§ 5IOV2, 590. 8 6 Winpenny v. French, 18 Ohio St. 469; Pennebaker v. Williams (Ky.) 120 S. W. 321. See "Contracts," Dec. Dig. (Key No.) §§ 126, 131; Cent. Dig. §§ 592 607 40 Lyon v. Mitchell, 36 N. Y. 235, 93 Am. Dec. 502; Sedgwick v. Stanton, 14 N. y. 289. See "Contracts," Dec. Dig. (Key No.) § 126; Cent. Dig. § 592. § 137) LEGISLATIVE POWER OF STATES IN GENERAL. 351 press or implied, for purely professional services, is valid. Within this category are included drafting the petition to set forth the claim, attending to the taking of testimony, collecting facts, preparing argu- ments, and submitting them orally or in writing to a committee or other proper authority, and other services of like character. All these things are intended to reach only the reason of those sought to be influenced. They rest on the same principle of ethics as professional services ren- dered in a court of justice and are no more exceptionable." *^ LEGISLATIVE FO'WEB OF STATES IN GENEBAIi. 137. The rightful poirer of the legislature of a state extends to ev- ery snhject of legislation, unless, in the particular instance, its exercise is forhidden, expressly or hy necessary implica- tion, by the constitution of the United States, a treaty, an act of congress, or the constitution of the state. Under the system of government in the United States, the people of each of the states possess the inherent power to make any and all laws for their own governance. But a portion of this plenary legis- lative power has been surrendered by each of the states to the United States. The remainder is confided by the people of the state, by their constitution, to their representatives constituting the state legislature. At the same time, and by the same instrument, they impose certain restrictions and limitations upon the legislative power thus delegated. But state constitutions are not to be construed as grants of power (ex- cept in the most general sense), but rather as limitations upon the power of the state legislature. From these principles it follows that the legislature of a state may lawfully enact any law, of any char- acter, on any subject, unless it is prohibited, in the particular instance, either expressly or by necessary implication, by the provisions of some law which it is bound to regard as supreme. These laws of supreme authority, in which alone are to be sought the limitations of legis- lative power in the states, are the constitution of the United States, treaties and acts of congress made under its authority, and the con- stitution of the particular state. No act of a state legislature can be 41 Trist V. Child, 21 Wall. 441, 22 L. Ed. 623. And see Tates v. Robertson, 80 Va. 475 ; Denison v. Crawford County, 48 Iowa, 211 ; CoqulUard's Adm'r V. Bearss, 21 Ind. 479, 83 Am. Dec. 362. See "Contracts," Dec. Dig. {Key No.) § 126; Cent. Dig. § 592. 352 LEGISLATIVE POWER IN THE STATES. (Ch, 13 pronounced ultra vires, unless it can be shown to be in contravention of the express terms or necessary implications of one or other of these instruments.*' 42 MePherson v. Blacker, 146 U. S. 25, 13 Sup. Ct. 3, 36 K Edl 869; Gloz- za V. Tlernan, 148 U. S. 661, 13 Sup. Ct. 721, 37 L. Ed. 599 ; Piatt v. LeCocq (C. C.) 150 Fed. 391; Ensley Development Oo. v. Powell, 147 Ala. 300, 40 South. 137; Sheppard v. Dowling, 127 Ala. 1, 28 South. 791, 85 Am. St. Rep. 68; City Street Improvement Co. v. University of California, 153 Cal. 776, 96 Pac. 801, 18' L. R. A. (N. S.) 451 ; People v. Nye, 9 Oal. App. 148, 98 Pac. 241 ; Harder's Fireproof Storage & Van Co. v. Chicago, 235 111. 58, 85 N. E. 245 ; Hovey v. State, 119 Ind. 395, 21 N. E. 21 ; Eckerson v. Des Moines, 137 Iowa, 452, 115 N. W. 177 ; McSurely v. McGrew (Iowa) 118 N. W. 415 ; McGuire v. Chicago, B. & Q. R. Co., 131 Iowa, 340, 108 N. W. 902 ; Booth v. Commonwealth (Ky.) 113 S. W. 61 ; Bullitt v. Sturgeon, 127 Ky. 332, 105 S. W. 468, 32 Ky. Law Rep. 215, 14 L. R. A. (N. S.) 268 ; Evers v. Hudson, 36 Mont. 135, 92 Pac. 462; Sears v. Oottrell, 5 Mieji. 251; State v. Sheppard, 192 Mo. 497, 91 S. W. 477; State v. Gates, 190 Mo. 540, 89 S. W. 881, 2 L. R. A. (N. S.) 152 ; Albright v. Fisher, 164 Mo. 56, 64 S. W. 106 ; Wallace V. Reno, 27 Nev. 71, 73 Pac. 528, 63 L. R. A. 337, 103 Am. St Rep. 747; Rhodes v. Sperry & Hutchinson Co., 193 N. Y. 223, 85 N. E. 1097, 127 Am. St. Rep. 945 ; People v. Young, 18 App. Div. 162, 45 N. T. Supp. 772 ; People V. Draper, 15 N. Y. 532; People v. Flagg, 46 N. T. 401; Walker v. Cincin- nati, 21 Ohio St. 14, 8 Am. Rep. 24 ; Page v. Allen, 58 Pa. 338, 98 Am. Dec. 272 ; Commonwealth v. Mellet, 27 Pa. Super. Ct. 41 ; Solon v. State, 54 Tex. Cr. R. 261, 114 S. W. 349 ; Kimball v. Grantsvllle City, 19 Utah, 368, 57 Pac. 1, 45 L. R. A. 628 ; Thorpe v. Rutland & B. R. Co., 27 Vt. 140, 62 Am. Dec. 625 ; Whitlock v. Hawkins, 105 Va. 242, 53 S. E. 401 ; Oonek v. Skeen (Va.) 63 S. E. 11; Minneapolis, St. P. & S. S. M. R. Co. v. Wisconsin Railroad Commission, 136 Wis. 146, 116 N. W. 905, 17 L. R. A. (N. S.) 821. But constitutional prohibitions need not always be express. They are equally effective when they arise by implication. To create an implied pro- hibition there must be some express affirmative provision. The mere silence of the constitution creates no prohibition, and, to sustain an implied prohibi- tion, the express provision must. apply to the exact subject-matter, and the prohibition will not be extended further than necessary to give full force to the provision. Prouty v. Stover, 11 Kan. 235. Biit a constitutional provi- sion directing a particular thing to be done is a limitation on the legislative power to the extent that the legislature cannot lawfully take any action which would prevent the doing of the thing directed. Collins v. Henderson, 11 Bush (Ky.) 74. See "Constitutional Law," Dec. Dig. {Key No.) §§ 26, 27; Cent. Dig. §§ SO, SI; "Statutes," Cent. Dig. § S. §§ 138-140) LIMITATIONS IMPOSED BT FEDERAL CONSTITUTION. 353 LIMITATIONS IMPOSED BY THE FEDERAL. CONSTITUTION. 138. The constitution of the TTnited States imposes limitations or prohibitions of t\ro kinds upon the legislative power of the several states, viz; (a) Implied. (b) Explicit. 139. The implied limitations npon state legislative power are di- visible into two classes: (a) Those which grow out of the grant to congress of exclusive pow^er to legislate on certain subjects. (b) Those -which are implied from the grant or guaranty of cer- tain rights or privileges to the citizens of the United States, the citizens of the states, or the states as states. 140. The explicit limitations imposed by the federal constitution npon the legislative power of the states are as follows: No state shall — (a) Enter into any treaty, alliance, or confederation, nor, without the consent of congress, enter into any agreement or com- pact Trith another state or -with a foreign power. (b) Grant letters of marq.ue and reprisal. (c) Emit bills of credit. (d) Coin money, or make anything but gold or silver coin a ten- der in payment of debts. (e) Pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. (f ) Grant any title of nobility. (g) Lay any imposts or duties on imports or exports, except ivhat may be absolutely necessary for executing its inspection laws, unless with the consent of congress. (h) Lay any duty of tonnage, except with the consent of congress. (i) Keep troops or ships of war in time of peace. ( j ) Engage in -war, unless actually invaded or in such imminent danger as -will not admit of delay. (k) Establish or alloiv slavery or involuntai^ servitude, except as a punishment for crime whereof the party shall have been duly convicted. ( 1 ) Make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. (m) Deprive any person of life, liberty, or property without due process of law. (n) Deny to any person within its jurisdiction the equal protec- tion of the laws. (o) Assume or pay any debt or obligation incurred in aid of insur- rection or rebellion against the United States, or any claim for the loss or emancipation of any slave. Bl.Oonst.L.(3d.Bd.)— 23 354 LEGISLATIVE POWER IN THE STATES. (Ch. 13 (p) Deny or abridge the right of citizens of the TJnited States to vote, on account of race, color, or previous condition of servitude. Implied L,imitations. The implied limitations of the first class grow out of the fact that certain powers of lawmaking are granted to congress by the federal constitution, and some of these are exclusive. In such cases, the con- stitution implies that the several states shall not take any legislative action upon the subject-matter of such exclusive power of congress. These prohibitions have been discussed in connection with the powers of congress. An example of an exclusive power vested in congress is that which gives it the sole right to legislate for the government of the District of Columbia and the territories. In the second class of implied prohibitions belong those which for- bid the states to deprive the federal courts of any part of the jurisdic- tion conferred upon them by the constitution, or of the means of ex- ercising that jurisdiction, and those which secure to the citizens of each state the privileges and immunities of citizens in the several states, and which provide for full faith and credit to be given to the public acts, records, and judicial proceedings of each state, and for the extra- dition of fugitives from justice, and also the guaranty to each state of a republican form of government. In each of these cases, the grant of rights or the guaranty carries with it an implied prohibition of any state legislation which would have the effect to deny it or derogate from its effectiveness. Explicit Limitations. Of the explicit limitations upon state legislative power enumerated above, some are of such importance, and involve so many principles and questions, that they require separate chapters for their full treat- ment. Others will be most appropriately discussed in connection with the guaranties of private and political rights, and can only be studied in connection with similar prohibitions laid upon the power of congress. The remaining limitations upon state power, found in the federal con- stitution and mentioned above, will now be considered in order. But first, the reader must be again reminded that the various clauses of the federal constitution which impose restrictions, limitations, or prohibitions upon the exercise of legislative power were designed, generally, to guard the rights of the people against oppression on the part of that government which the constitution created, not against their own states. They are therefore to be considered as applicable §§ 138-140) LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 355 only to the federal government, except in those cases where the states are expHcitly mentioned. And this is particularly to be observed in re- gard to the first eight amendments.*^ Treaties and Compacts. The constitution gives to the general government the plenary and exclusive control over all our foreign relations and all our dealings as a nation among nations. Moreover, treaties made by the United States are the supreme law of the land, and it follows that the individual states are not only prevented from forming alliances or arranging treaty rights with foreign countries, but also that it is not within their lawful power to disregard or obstruct those which are made by the national government.** The use of the several words "treaty," "agree- ment," and "compact" shows "that it was the intention of the framers of the constitution to use the broadest and most comprehensive terms, and that they anxiously desired to cut off all connection or communica- tion between a state and a foreign power"; and, in order to execute this evident intention, the word "agreement" must receive its most ex- tended signification, and be so applied as to prohibit every agreement, written or verbal, formal or informal, positive or implied by the mutual understanding of the parties. *° Thus, an act of the legislature of a state authorizing the surrender of fugitives from justice claimed by a 'foreign power as offenders against its laws, though not strictly a treaty, involves relations with such foreign power, and is to that extent an invasion of the paramount control over our foreign intercourse com- mitted to congress by the constitution, and for that reason is void.** But the states, with the consent of congress, may make compacts with *3 See O'Neil v. Vermont, 144 U. S. 323, 12 Sup. Ot. 693, 36 L. Ed. 450 ; State v. Paul, 5 E. I. 185; Murphy v. People, 2 Cow. (N. Y.) 815; Pervear V. Massachusetts, 5 Wall. 475, 18 L. Ed. 608. See "Constitutional Law," Dec. Dig. (Key No.) §§ 26, 27; Cent. Dig. §§ 30, 31. 4* Fellows V. Denniston, 23 N. Y. 420; In re Metzger, 1 Edm. Sel. Cas. (N. Y.) 399, Fed. Cas. No. 9,511. See "Treaties," Dec. Dig. (Key No.) § J; Cent. Dig. § 1. 45 Holmes v. Jennison, 14 Pet. 540, 614, 10 L. Ed. 579. See "Treaties," Dec. Dig. (Key No.) § J; Cant. Dig. § J; "Extradition," Cent. Dig. § 4- 4 6 U. S. V. Rauscher, 119 U. S. 407, 7 Sup. Ct. 234, 30 L. Ed. 425; People V. Curtis, 50 N. Y. 321, 10 Am. Rep. 483. But in the absence of a treaty on the subject, a state is not prevented, by this clause of the constitution, from passing a statute declaring an alien capable of inheriting or taking property and -holding the same within its borders. Blythe v. Hinckley, 180 U. S. 333, 21 Sup. Ct. 390, 45 L. Ed. 557. See "States," Dec. Dig. (Key No.) § 7; "Ex- tradition," Deo. Dig. (Key No.) §§ 3, i; Cent. Dig. §§ 3-5. 356 LEGISLATIVE POWER IN THE STATES. (Ch. 13 each other. Such agreements have been made since the formation of the constitution, and, indeed, even before its adoption. For instance, in 1785, Maryland and Virginia entered into a compact or treaty regu- lating the right of fishing in the Potomac river, which constitutes the boundary between them. This compact is still in force, not being abro- gated by the constitution, and has recently been before the courts for interpretation.*^ It is open to some question whether the assent of congress is required to every possible kind of contract which two states might make with each other. It has been held that, with the consent of congress, the states may settle their disputed boundaries by compact or treaty.*^ But the opinion has lately been advanced that the con- sent of congress is not necessary to agreements between the states relating to matters in -which the United States could have no possible interest or concern, which do not trench upon the national authority or the subjects committed to its exclusive control, nor involve the au- tonomy of any state or the nature or extent of its political power or influence. Thus, it is said, the mere selection of parties to settle a boundary line between two states, and a legislative adoption of their report by one of the states, does not amount to a "compact" or "agree- ment" between states, which they are forbidden by the constitution to make without the consent of congress, until the one state has adopt- ed the report in consequence of its adoption by the other, nor even then, unless the boundary established leads to the increase or decrease of the political power or influence of the states affected.*" The con- sent of congress to an agreement between states need not necessarily be manifested by an express assent to every proposition contained in the agreement, but the assent may be inferred from the legislation of congress on the subject.^" Letters of Marque. The subject of letters of marque has been somewhat considered in connection with the war powers of congress.'^ It remains to add that 47 See Ex parte Marsh (O. C.) 57 Fed. 719. See "Fish," Dec. Dig. (Key No.) § 3; Cent. Dig. § 6. 48 Poole v. Fleeger, 11 Pet. 185, 9 L. Ed. 680. See "States," Deo Dig. (Key No.) §§ 6, n; Cent. Dig. §§ 3, 7. 49 Virginia v. Tennessee, 148 U. S. 503, 13 Sup. Ot. 728, 37 L. Ed. 537. And see Eastern Kentucky Coal Lands Corp. v. Commonwealth, 106 S. W. 260, 32 Ky. ipaw Rep. 129. See "States," Dec. Dig. (Key No.) § 12; Cent. Dig. § 7. 60 Virginia v. West Virginia, 11 Wall. 39, 20 L. Ed. 67 ; Virginia v. Tennes- see, 148 U. S. 503, 13 Sup. Ct. 728, 37 L. Ed. 537. -See "States," Deo. Dig. (Key No.) § IZ; Cent. Dig. § 7. ei See ante, p. 274. §§ 138-140) LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 35T the removal of this power from the field of state legislation, and the in- trusting it exclusively to the general government, is a part of that gen- eral policy which dictated the principle that the powers of peace and war, with all their concomitants, should not be left to the discretion and the varying interests or prejudices of the individual states, but should be lodged alone in the central government. If it were not for this prohibition, it would be in the power of any state, at any time, to involve the whole nation in a war. Bills of Credit. The history of paper currency during the revolution, with its in- evitable and serious depreciation, and the public discredit which ensued, furnished the reason for the introduction into the constitution of a prohibition against the issue of bills of credit by the states.' Not every species of evidence of debt put forth by a state comes within the de- scription of bills of credit. The term does not include bonds issued by a state, or warrants for the payment of services out of a specific fund. "To constitute a bill of credit within the constitution, it must be issued by a state, on the faith of the state, and designed to circulate as money- It must be a paper which circulates on the credit of the state, and so- received and used in the ordinary business of life." ""^ A bill drawn on a state, the payment of which is to be made out of a fund pledged therefor, is not a bill of credit, within the meaning of this clause.'*^ And bills issued by a banking corporation which has a paid-up capital and may be sued upon its debts, are not to be deemed bills of credit, even though the state owns the entire stock of the bank, and the legis- lature elects the directors, and the faith of the state is pledged for the redemption of the bills, and they are made receivable for all public dues.^* This prohibition of the constitution, though it declares only that "no state" shall issue such bills, applies with equal force to the 52 Briscoe v. Bank of Kentucky, 11 Pet. 257, 9 L. Ed. 709 ; Craig v. Mis- souri, 4 Pet. 410, 7 L. Ed. 903 ; Woodruff v. Trapnall, 10 How. 190, 13 L. Ed. 383 ; Central Bank of Georgia v. Little, 11 Ga. 346. And see Houston & T. C. R. Co. V. Texas, 177 U. S. 66, 20 Sup. Ct. 545, 44 L. Ed. 673 ; Polndexter v. Greenhow, 114 U. S. 283, 5 Sup. Ot. 910, 29 L. Ed. 185 ; AVesley v. Eells (C. O 90 Fed. 151 ; Robinson v. Lee (C. C.) 122 Fed. 1012 ; State v. Comptroller Gen- eral, 4 S. C. 185. See "States," Deo. Dig. (Key No.) § 145; Cent. Dig. § Ul. 5 3 Gowen v. Shute, 4 Baxt. (Tenn.) 57. See "States," Deo. Dig. (Key No.y § 145; Cent. Dig. § 141- 54 Darrington v. Bank of Alabama, 13 How. 12, 14 L. Ed. 30; Briscoe v. Bank of Kentucky, 11 Pet. 257, 9 L. Ed. 709 ; Curran v. Arkansas, 15 How. 304, 14 L. Ed. 705. See "Banks ami BanMng," Dec. Dig. (Key No.) §§ 198, 211; Cent. Dig. §§ 150, 151, 8OOV2. 358 LEGISLATIVE POWER IN THE STATES. (Ch. 13 case where two or more states confederate together and on their joint faith and credit issue bills of the forbidden character." Coining Money — Legal Tender. Under the articles of confederation, the several states possessed the power to coin money, as well as the United States. This appears from the language of the ninth article, where it is provided that "the United States in congress assembled shall have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority or by that of the respective states." But under the constitution, this power is removed from the states, not only by the grant of the power to coin money to congress, but also by the pro- hibition of it to the states. While the states may neither emit bills of credit nor make anything but gold and silver coin a tender in pay- ment of debts, yet neither of these restrictions will prevent them from granting charters of incorporation to banking companies and authoriz- ing them to issue their bills, intended to circulate as money, provided that such bills are issued upon the credit of the banks alone and not upon the faith of the states, and that it is not attempted to give them the character of legal tender notes. ^® Duties on Imports and Exports. , The prohibition against state taxation of imports and exports is one of those provisions of the constitution which are designed more ef- fectually to commit to the national government the entire control of foreign and interstate commerce. It was apparently deemed neces- sary to concede to the states a very limited power of taxation in this regard, for the purpose of allowing them to make and execute inspec- tion laws. But so jealously was this concession restricted that all temptation to the states to encroach upon the limits set for them was taken away by the provision that the "net proceeds" of all duties so laid "shall be for the use of the treasury of the United States." In- spection laws are such as authorize and direct the inspection and ex- amination of various kinds of merchandise intended for sale, or for ■exportation, especially food, with a view to ascertaining its fitness for use and excluding unwholesome or unmarketable goods from sale or exportation.^' The word "imports" as here used is construed as hav- B6 Bailey v. Milner, 35 Ga. 330, Fed. Cas. No. 740. See "Bankruptcy," Deo. Dig. {Key No.) § 3U; Cent. Dig. § m- 5 6 Miller, Const. 583. 5 7 Turner v. Maryland, lOT U. S. 38, 2 Sup. Ct. 44, 27 L. Ed. 370; Voight V. Wright, 141 U. S. 62, 11 Sup. Ct' 855, 35 L. Ed. 638 ; Foster v. Master & g§ 138-140) LIMITATIONS IMPOSKD BT PEDEKAL CONSTITUTION. 359 ing reference only to goods imported from foreign countries, and it is not applicable to such as are merely transported from one state into another.'^ But the authority of the states to tax property brought into them from other states is restrained by another clause of the constitu- tion, namely, that which grants to congress the power to regulate com- merce. As to articles imported from foreign countries, it is held that they do not lose their character as imports, so as to become subject to state taxation as a part of the general mass of property in the state, until they have either passed from the control of the importer or have been broken up by him from the original cases, packages, or bales in which they were imported. Before this is done, any state tax upon them is void, whether it is imposed upon them distinctively as imports or as constituting a part of the importer's property.^' In regard to the taxation of exports, the chief difficulty has been in the determina- tion of the point of time at which goods cease to be a part of the general mass of property in the state and assume the distinctive char- acter of exports. The result of the authorities may be stated in the following general rule : Goods produced in a state are not entitled to exemption from its tax laws merely because it is the intention of the owner that they shall be exported to another state or to a foreign coun- try, or even because they have been partially prepared for that pur- pose by being deposited at a place of shipment. But in this case they must be taxed as other property in the state, of the same kind, is taxed. Wardens of Port of New Orleans, 94 U. S. 246, 24 L. Ed. 122 ; Patapsoo Guano Co. v. Board of Agriculture, 171 U. S. 345, 18 Sup. Ct. 862, 43 L. Ed. 191. See ^'Commerce," Dec. Dig. (Key No.) §§ 49-51, 77; Cent. Dig. §§ 48-53, 61-70. ssWoodrufe v. Parham, 8 Wall. 123, 19 L. Ed. 382; Almy v. California, 24 How. 169, 16 L. Ed. 644 ; Hinson v. Lott, 8 Wall. 148, 19 L. Ed. 387 ; Ameri- can Steel & Wire Co. v. Speed, 192 V. S. 500, 24 Sup. Ct. 365, 48 L. Ed. 538 ; People V. Walling, 53 Mich. 264, 18 N. W. 807. See "Commerce," Deo. Dig. (Key No.) § 77; Cent. Dig. §§ 61-70. 5 9 Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678; Low v. Austin, 13 Wall. -29, 20 L. Ed. 517 ; Waring v. Mobile, 8 Wall. 110, 19 L. Ed. 342 ; New Mexico Y. Denver & R. G. R. Co., 203 U. S. 38, 27 Sup. Ct. 1, 51 L. Ed. 78 ; Appeal of Doane, 197 111. 376, 64 N. E. 377 ; Appeal of Pitkin & Brooks, 193 111. 268, 61 N. E. 1048 ; Siegfried v. Raymond, 190 111. 424, 60 N. E. 868 ; State v. Board of Assessors, 46 La. Ann. 145, 15 South. 10, 49 Am. St. Rep. 318 ; Gerdan v. Davis, 67 N. J, Law, 88, 50 Atl. 586. Credits or bills receivable are taxable as capital invested within the state, although they are the proceeds of sales -of imported goods in the original packages, as this Is not a tax on imports. People V. Wells, 107 App. Div. 15, 95 N. Y. Supp. 100, affirmed in 184 N. Y. ■275, 77 N. E. 19, and 208 U. S. 14, 28 Sup. Ct. 193, 52 L. Ed. 370. See "Com- merce," Dec. Dig. (Key No.) §§ 12, 77; Cent. Dig. § 61. 360 LEGISLATIVE POWER IN THE STATES. (Ch. 13 and it is not admissible to discriminate in taxation between articles intended for consumption within the state and those sold or intended to be taken into another. And the distinctive character of "exports" does not attach to the goods until they have been shipped, or entered with a common carrier for transportation to another state or foreign country, or have been started upon such transportation in a contin- uous route or journey.*" Duties of Tonnage. The object of this prohibition was to prevent the states from bur- dening or interfering with foreign and interstate commerce by the indirect method of taxation. The imposition of a tonnage duty is taxation, but it also amounts to a regulation of commerce. The ton- nage of a vessel is a measure of its size and carrying capacity; it is the measure of the ship's internal cubical capacity, estimated in tons of one hundred cubic feet each, measured in a particular manner. The supreme federal court has decided that "a duty of tonnage, within the meaning of the constitution, is a charge upon a vessel, according to its tonnage, as an instrument of commerce, for entering or leaving a port, or navigating the public waters of the country; and the pro- hibition was designed to prevent the states from imposing hindrances of this kind to commerce carried on by vessels.*^ The prohibition, therfore, amounts to this, that the states must not lay duties upon vessels, according to their tonnage, by way of exaction for the priv- ilege of being employed as instruments of commerce or for such priv- ileges as are indispensable to that employment. "" But this does not preclude the states from taxing vessels as property, or rather, from 60 Ctoe V. Errol, 116 U. S. 517, 6 Sup. Ct. 475, 29 L. Ed. 715 ; Turpin v. Bur- gess, 117 U. S. 504, 6 Sup. Ct. 835, 29 L. Ed. 988; Jackson Min. Co. v. Auditor General, 32 Mich. 488. And see Arm6ur Packing Co. v. United States, 153 Fed. 1, 82 O. C. A. 135, 14 L. R. A. (N. S.) 400; Commonwealth v. Selllnger, 98 S. W. 1040, 30 Ky. Law Rep. 451. In Almy v. California, 24 How. 169, 16 L. Ed. 644, a stamp duty imposed by the legislature of California upon bills of lading for gold or silver transported from that state to any port or place out of the state was held to be a tax on exports and void. See "Commerce," Dec. Dig. (Key No.) «§ 31, 77; Cent. Dig. §§ 24, 61-70. ■ 61 Huse V. Glover, 119 U. S. 543, 7 Sup. Ct. 313, 30 L. Ed. 487. See "Com^ meroe," Dec. Dig. (Key No.) § 78; Cent. Dig. §§ 54-60. 62 State Tonnage Tax Cases, 12 Wall. 204, 20 L. Ed. 370; Inman S. S. Co. V. Tinker, 94 U. S. 238, 24 L. Ed. 118 ; Southern S. S. Co. v. Portwardens, 6 Wall. 31, 18 L. Ed. 749 ; Peete v. Morgan, 19 Wall. 581, 22 L. Ed. 201 ; Wheel- ing, P. & O. Transp. Co. v. Wheeling, 99 U. S. 273, 25 L. Ed. 412. See "Com- merce," Dec. Dig. (Key No.) § 78; Cent. Dig. §§ 5Jt-60. §§ 138-140) LIMITATIONS IMPOSED BY FEDEKAL CONSTITUTION. 361 taxing the owners of vessels, in respect to their property therein, when the vessels are subject to the taxing power or have their home situs within its limits ; this is not an interference with commerce, but a law- ful exercise of the general power of taxation."* And a statute which requires the payment of wharfage dues from vessels making fast to the wharves and discharging cargo thereat, is not obnoxious to the con- stitutional prohibition, even though such wharfage dues are graduated according to the tonnage of the vessel. The reason is that wharfage dues are not taxes or duties, nor do they amount to a regulation of commerce.'* Furthermore, it has been decided that where a state statute requires every vessel passing a quarantine station to pay a certain fee for examination as to her sanitary condition, this is to be regarded as a part of the quarantine system and a compensation for services rendered to the vessel, and not as a tax, within the meaning of the constitutional limitation in respect to tonnage duties.*" Keeping Troops — Engaging in War. "No state shall, without the consent of congress, keep troops or ships of war in time of peace, or engage in war, unless actually in- vaded, or in such imminent danger as will not admit of delay." These clauses of the constitution must be regarded as correlative to those which grant to congress the power to declare war and to maintain armies and navies. The general purpose of the whole is to invest the entire power of making war, and of maintaining a military equip- ment, in the national government, and to put it beyond the power of the states to enter upon hostilities with each other or with foreign nations. But it must be observed that the "troops" here intended .are such as constitute a stipendiary or standing army. The prohibi- tion was not aimed at, nor does it affect, the militia of a state."* 6 3 Peete v. Morgan, 19. Wall. 581, 22 L. Ed. 201. See "Commerce," Dec. Dig. (Key No.) §§ 71-74; Cent. Dig. §§ 123-136. ei Keokuk Northern Line Packet Co. v. Keokuk, 95 U. S. 80, 24 L. Ed. 377 ; Parkersburg & O. River Transp. Co. v. City of Parkersburg, 107 U. S. 691, 2 Sup. Ct. 732, 27 L. Ed. 584; Cannon v. New Orleans, 20 Wall. 577, 22 L. Ed. 417 ; Cincinnati, P. B. S. & P. Packet Co. v. Catlettsliurg, 105, U. S. 559, 26 L. Ed. 1, 169 ; St. Louis v. Wiggins Ferry Co., 11 Wall. 423, 20 L. Ed. 192 ; Vicksburg v. Tobin, 100 U. S. 480, 25 L. Ed. 690 ; City of St. Louis v. Eagle Packet Co., 214 Mo. 638, 114 S. W. 21. See "Commerce," Dec. Dig. (Key No.) §§ 57, 78; Cent. Dig. §§ 58, 75. 6 B Morgan's Louisiana & T. R. & S. S. Co. v. lK)uisiana Board of Health, 118 U. S. 455, 6 Sup. Ct. 1114, 30 L. Ed. 237. See "Commerpe," Dec. Dig. (Key No.) § 51; Cent. Dig. § 49. 6 6 The governor of a state, In employing the militia to suppress an insur- 362 LEGISLATIVE POWER IN THE STATES. (Ch. 13 IMPLIED LIMITATIONS IN STATE CONSTITUTIONS. 141. Beside the express limitations upon the legislative power im- posed by the constitution of a state, there are certain limi- tations implied from the distribution of the functions of government, the nature of legislative power, and the bound- aries of state authority. (a) The legislature must not usurp the powers, or encroach upon the province, of the executive or judicial department. (b) The legislature cannot give exterritorial validity to its en- actments. (c) The legislature cannot alienate or surrender the governmental powers, popular rights, or public property which it holds in trust for the people. (d) Public money cannot be expended, by appropriations from the treasury, for other than public purposes. (e) Irrepealable laws cannot be passed, unless it be in the form of a contract founded upon a consideration. Usurpation of Powers. The rule that the legislature of a state may not lawfully usurp the powers or prerogatives of the other departments of the government, nor assume to invade the peculiar province of either, results from the general principle of the apportionment of the powers of sover- eignty between the three great branches of the government. This principle, in its practical applications, was fully considered in an earlier chapter, to which the reader is now referred. Territorial Restriction. The laws of a state can have no exterritorial validity. That is, a state has power to legislate only concerning such subjects as are with- in its physical limits or the confines of its jurisdiction, and concern- ing such persons as, by citizenship or inhabitancy, are within the sphere of its operations. Its laws cannot affect subjects of property which are beyond its limits, except in so far as its own people may have dealings with them. Nor can its laws affect citizens or inhab- itants of other states or countries, except in so far as, by making a sojourn within the state, they make. themselves amenable to its regu- lations, or invoke the aid and protection of its laws by dealing with property subject to its local jurisdiction or seeking the remedies af- forded by its courts. This, then, constitutes an implied limitation upon the powers of a state legislature, but not because it is specifically pro- hibited by the constitution, but because what is beyond the power of :§ 141) IMPLIED LIMITATIONS IN STATE CONSTITUTIONS. 363 the people of a state, as a whole, cannot be within the power of their representatives who are intrusted with the making of their laws. And, as a rule of interpretation, every statute is presumed to be intended to be confined in its operation to the persons, property, rights, or con- tracts which are within the territorial jurisdiction of the legislature which enacted it. The presumption is always against any intention to attempt giving to the act an exterritorial operation and effect."^ On this principle, it is held that the taxing power of a state is lim- ited to persons and property within and subject to its jurisdiction. For instance, no state could impose taxes upon land lying within the confines of another state,^^ nor upon intangible personal property owned by nonresidents.'' For the same reason, the civil damage laws — giving a right of action against liquor sellers to innocent parties who sustain injury by the intoxication of persons supplied with liquor by the defendants — have no exterritorial operation or effect.'" And the same rule is applied in the case of the statutes, now quite common in the United States, which give a right of action for damages to the surviving family, or the personal representatives, of a person who has been killed by the wrongful act, omission, or default of another.''^ rectlon, acts In a civil capacity merely as the chief magistrate of the state ; hence the arrest of an Insurrectionist by the military forces and their refusal to surrender him to the civil authorities for trial prior to the suppression of the Insurrection is not a violation of the constitutional provision that the military shall always be in strict subjection to the civil power. In re Moyer, 35 Colo. 159, 85 Pac. 190, 12 L. R. A. (N. S.) 979, 117 Am. St. Rep. 189. See "Constitutional Law," Dec. Dip. (Key No.) § 82. 6 7 Bond v. Jay, 7 Cranch, 350, 3 L. Ed. 367; Noble v. The St. Anthony, 12 Mo. 261 ; Ex parte Blain, 12 Ch. Div. 522 ; Jefferys v. Boosey, 4 H. L. Cas. 815 ; Hendrickson v. Fries, 45 N. J. Law, 555 ; The Ohio v. Stunt, 10 Ohio St. 582. See "Limitation of Actions," Dec. Dig. (Key No.) § S7; Cent. Dig. § //57; "Maritime Liens," Dec. Dig. (Key No.) § 19; Gent. Dig. § 25; "Judgment," Dec. Dig. (Key No.) § U; Cent. Dig. § 61; "Shipping," Deo. Dig. (Key No.) § SS; Cent. Dig. § 336. 6 8 Appeal of Drayton, 61 Pa. 172; Winniplseogee Lake Cotton & Woolen Mfg. Co. V. Gilford, 64 N. H. 337, 10 Atl. 849. See "Taxation," Dec. Dig. (Key No.) § 20; Cent. Dig. §§ 51-5^. 6 Case of State Tax on Foreign-Held Bonds, 15 Wall. 317, 21 L. Ed. 179. See "Taxation," Dec. Dig. (Key No.) § 20; Cent. Dig. § 51. ■"> Goodwin v. Young, 34 Hun (N. Y.) 252. See "Courts," Dec. Dig. (Key No.) % 6; Cent. Dig. 122. 71 Beach v. Bay State Steamboat Co., 30 Barb. (N. Y.) 433; Whitford v. Panama R. Co., 23 N. Y. 465. See "Death," Dec. Dig. (Key No.) § 8; Cent. Dig. § 12. *^64 LEGISLATIVE POWER IN THE STATES. (Ch. IS The rights and jurisdiction of the several states over the sea ad- jacent to their coasts are those of an independent nation, except as qualified by any right of control granted to the United States by the constitution. And where, by the constitution and laws of a state, her boundaries and those of her counties are three miles from the shore,, her statutes giving an action for death by negligence are operative within such boundaries, where death occurs by negligence in the navi- gation or towage of vessels.'^ Legislature as a Trustee. Another implied limitation upon the power of a state legislature may be found in the fact that it holds certain governmental powers,, and certain kinds of public property, in trust for the people. That the great powers of taxation and police are thus held under a trust which forbids their surrender by the legislature or their irrevocable aliena- tion to private persons, will fully appear from other parts of this work. And the application of a similar doctrine to property belonging to the people as a whole was made in the celebrated "Chicago Lake Front Case." '* Herein it was stated that the title which a state holds to lands under tide waters bordering on the sea or under the navigable waters of the Great Lakes, lying within her limits, is different in char- acter from the title of the state to lands intended for sale, or from that of the United States to the public lands which are open to pre-emption and sale. It is a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them,, and have liberty of fishing therein, free from obstruction or inter- ference by private parties. And it is not within the legislative power of. the state to abdicate this trust by a grant whereby it surrenders its property and general control over the lands of an entire harbor, bay, sea, or lake though it may grant parcels thereof for the founda.- tion of wharves, piers, docks, and other structures in aid of commerce, or parcels which, being occupied, do not substantially impair the pub- lic interest in the waters remaining. 7 2 Manchester v. Massachusetts, 139 U. S. 264, 11 Sup. Ct. 559, 35 L. Ed. 159 ; Humboldt Lumber Manufacturers' Ass'n v. Chrlstopherson, 19 C. C. A. 481, 73 Fed. 239, 46 L. K. A. 264. And see Bigelow v. Nickerson, 17 C C. A. 1, 70 Fed. 113, 30 L. R. A. 336. See "States," Dec. Dig. (Key No.) § 12; Cent. Dig. §§ 9, 10. ' 7 3 Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018. And see Corrlgan v. Brown (0. C.) 169 Fed. 477. But compare Sun- bury & E. R. Co. V. Cooper, 33 Pa. 278. See "Navigalle Waters," Dec. Dig, (Key No.) §1 36, SI; Gent. Dig. i§ m, 203. :§ 141) IMPLIED LIMITATIONS IN STATE CONSTITUTIONS. 365 Appropriations, and Expenditure of the Public Money. The control, administration, and disposition of the property and funds of the state, and the appropriation thereof to the payment of ■debts, are powers appertaining exclusively to the legislative depart- ment, and cannot be delegated to or exercised by the judicial or ex- ecutive departments.^* In most of the states, the constitutions pro- vide that no money shall be dravi^n from the treasury except under appropriations duly made by law. An appropriation, as applicable to the general fund in the treasury, is an authority from the legislature, given at the proper time and in legal form to the proper officers, to apply sums of money out of that which may be in the treasury, in a given year, to specified objects or demands against the state.''' No matter how just or equitable a claim against the state may be, no duty •devolves upon the fiscal officers to pay the same, until an appropria- tion is made by law for that purpose.''* In a few of the states, it is ■constitutionally provided that appropriations shall not be made for a longer term than two years. But, in the absence of such a specific restriction, the control of the legislature over this subject is plenary, ■and there is nothing to invalidate continuing appropriations; that is, 7 4 Carter v. State, 42 I^a. Ann. 927, 8 South. 836, 21 Am. St. Rep. 404; Carr T. State, 127 Ind. 204, 26 N. B. 778, 11 L. R. A. 370, 22 Am." St. Rep. 624. See ^'Constitutional Law," Dec. Dig. {Key No.) §§ 5.9-66; Cent. Dig. §§ 89-122. 7 5 Ristine v. State, 20 Ind. 328 ; Providence Washington Ins. Co. v. Weston, ■63 Neb. 764, 89 N. W. 253. An appropriation "made by law" is an appropria- tion made either by direction of the constitution itself or by the legislature in the manner prescribed by the constitution. Weston v. Herdman, 64 Neb. 24, 89 N. W. 384. Hence a joint resolution, adopted by both houses of the legis- lature, but without an enacting clause, is not sufficient as an appropriation. In re Advisory Opinion, 43 Fla. 305, 31 South. 348. The constitutions of some states (as California) provide that "no bill making an appropriation for money, except the general appropriation bill, shall contain more than one item of ap- propriatiou, and that for one single and certain purpose." Hence a statute making an appropriation for the payment of five distinct claims of different persons is void. Sullivan v. Gage, 145 Cal. 759, 79 Pac. 537. All preferred appropriations for a given fiscal year, whether continuing or made at the legis- lative session for that year, are of the same relative rank. Stuart v. Nance, 28 Colo. 194, 63 Pac. 323. See "States," Dec. Dig. (Key No.) §§ 129-133; Cent. Dig. §§ 127-131. 7 6 Collier & Cleveland Lithographing Co. v. Henderson, 18 Colo. 259, 32 Pac. 417; Hager v. Sidebottom (Ky.) 113 S. W. 870; Park v. Candler, 113 Ga. 647, 39 S. E. 89 ; State v. Moore, 50 Neb. 88, 69 N. W. 373, 61 Am. St. Rep. 538; Kingsbury v. Anderson, 5 Idaho, 771, 51 Pac. 744; State v. Oapdevielle (La.) 49 South. 1006. See "States," Dec. Dig. (Key No.) § ISO: Cent. Dia. i 128. 366 LEGISLATIVE POWEK IN THE STATES. (Ch. 15 those the payment of which is to be continued beyond tht next session of the legislature." And it is within the power of the legislature to appropriate the public revenues in anticipation of their receipt; it is not necessary to the validity of an appropriation that the funds to meet it should be in the treasury at the time.'* But where, as is. sometimes the case, the legislature is forbidden to make appropria- tions in excess of the revenue of the state, this requirement is man- datory, and it is the duty of public officers connected with the adminis- tration of the state finances to treat as void every appropriation in excess of the constitutional limits.'* Same — Purposes of Appropriation — Bounties and Gifts to Private Persons. It is a general principle of law that the money raised by taxation may not be appropriated and paid out of the public treasury for other than public purposes. Whether money appropriated by the legislature was- intended for a public or a private purpose must be determined from' the statute itself, and from such considerations as the court can ju- dicially notice; and it is not competent to take proof and determine the question as a matter of fact.*" But it is not always easy to de- termine the nature of the object of an appropriation, as public or pri- vate. For instance, it is unquestionably within the power of the legislature to maintain public charities, and provide for the care of the indigent, destitute, and insane, either in institutions exclusively under state control or those maintained by corporations for purely charitable purposes." So also money may be appropriated for the 7 7 In re Continuing Appropriations, 18 Colo. 192, 32 Pae. 272. See Moore Y. Alexander, 85 Ark. 171, 107 S. W. 395; State v. Frazee, 105 La. 250, 29 South. 478; Flecten v. Lamberton, 69 Minn. 187, 72 N. W. 65; State v. Moore, 50 Neb. 88, 69 N. W. 873, 61 Am. St. Rep. 538 ; State v. Brian, 84 Neb. 30, 120 N. W. 916. See "States," Dec. Dig. (Key No.) § 131; Cent. Dig. § 129. 7 8 stein V. Morrison, 9 Idaho, 426, 75 Pac. 246. See "States," Dec. Dig. (Key Wo.) §§ 131, 132; Cent. Dig. §§ 129, 130. 7 9 Henderson v. People, 17 Colo. 587, 31 Pac. 334. See "States," Dec. Dig. (Key No.) §§ 131, 132; Cent. Diff. §§ 129, 130. 80 Waterloo "Woolen Mfg. Co. v. Shanahan, 128 N. Y. 345, 28 N. E. 358, 14 L. R. A. 481 ; Oxnard Beet Sugar Co. v. State, 73 Neb. 57, 1C5 N. W. 716 ; Fox V. Mohawli & H. R. Humane Soc, 165 N. Y. 517, 59 N. E. 353, 51 L. R. A. 681, 80 Am. St. Rep. 767. See "States," Deo. Dig. (Key No.) §§ lU, 119, 129- 13S. 81 Board of Directors of Woman's Relief Corps Home Ass'n of California; V. Nye, 8 Cal. App. 527, 97 Pac. 208 ; Hager v. Kentucky Children's Home Soc, 119 Ky. 235, 83 S. W. 606, 26 Ky. Law Rep. 1133, 67 L. R. A. 815. See "States^ Dec. Dig. (Key No.) § lU; Cent. Dig. § US. § 141) IMPLIED LIMITATIONS IN STATE CONSTITUTIONS. 367 state and county system of schools/^ and to aid colleges and universi- ties.^* Again, it is not unlawful to expend the public money in the construction of necessary public buildings and the construction and maintenance of public roads and other such works/* unless the state is forbidden by the constitution from engaging in works of internal improvement."* Appropriations have sometimes been made for the rehef of sufferers from general and wide-spread public calamities, such as disastrous fires, floods, or cyclones, or a general failure of the crops ; but they have generally been held unconstitutional.^* On the other hand, the grant of pensions or rewards for military service, and even for conspicuous services rendered in civil life, has always been sustained; *' though a gift of money to a private individual, to reimburse him for financial loss or personal injuries, for which the state is not responsible, either on general principles of law or by rea- son of any statute, is a gratuity and not sustainable.*' Bounties of- fered for the encouragement or improvement of agriculture, or the development of natural resources in the direction of particular agri- cultural products, or in aid of manufacturing or commercial enter- 82 Pfeiffer v. Board of Education of Detroit, 118 Mich. 560, 77 N. W. 250, 42 L. R. A. 536. Sec "Schools and, ScJiool Distncts," Dec. Dig. (Key. No.) § 165. 8 3 People V. Brooklyn Cooperage Co., 187 N. Y. 142, 79 N. E. 866. See "States," Dec. Dig. {Key No.) § 119. 8 4 Bonsai v. Xellott, 100 Md. 481, 60 Atl. 593, 69 L. K. A. 914; Benedict v. City of New Orleans, 115 La. 645, 39 South. 792 ; Elting v. Hickman, 172 Mo. 287, 72 S. W. 700. See "States," Deo. Dig. {Key No.) §§ lU, 119, 123. 8 5 Burke v. Snively, 208 111. 328, 70 N. E. 327; State v. Kelly, 71 Kan. 811, 81 Pac. 450, 70 L. R. A. 450 ; State v. Froehlich, 115 Wis. 32, 91 N. W. 115, 58 L. R. A. 757, 95 Am. St. Rep. 894. See "States," Dec. Dig. {Key No.) §§ 114, 119, 1S3. 8 Lowell V. City of Boston, 111 Mass. 454, 15 Am. Rep. 39; State v. Osaw- kee Tp., 14 Kan. 418, 19 Am. Rep. 99 ; Patty v. Colgan, 97 Cal. 251, 31 Pac. 1133, 18 L. R. A. 744. But see State v. Davidson, 114 Wis. 563, 90 N. W. 1067, 58 L. R. A. 739 ; State v. Nelson County, 1 N. D. 88, 45 N. W. 33, 8 L. R. A. 283, 26 Am. St. Rep. 609. See "States," Dec. Dig. {Key No.) §§ 114, 119; Cent. Dig. §§ lis, 118. 87 Ahl V. Gleim, 52 Pa. 432 ; Speer v. School Directors, etc., of Borough of Blalrsville, 50 Pa. 150; Booth v. Town of Woodbury, 32 Conn. 118; Opinion of Justices, 175 Mass. 599, 57 N. E. 675, 49 L. R. A. 564 ; Opinion of Justices, 190 Mass. 611, 77 N. E. 82a See "States," Dec. Dig. {Key No.) §§ II4, 119; Cent. Dig. §§ US, 118; "Bounties," Dec. Dig. {Key. No.) § 1; Gent. Dig. §§ 1S5. 88 Bristol V. Johnson, 34 Mich. 123 ; Bourn v. Hart, 93 Cal. 321, 28 Pac. 951, 15 L. R. A. 431, 27 Am. St. Rep. 203 ; Ex parte Smythe (Tex. Cr. App.) 120 S. W. 200. See "States," Dec. Dig. (Key No.) § 119; Cent. Dig. § 118. 368 LEGISLATIVE POWER IN THE STATES. (Ch. 13 prises, have almost always been held invalid ; '" though it is otherwise as to bounties given for the destruction of wolves, coyotes, and other dangerous or destructive wild animals." Industrial and commercial ex- positions and fairs, whether confined to the limits of the state or interstate or international in their scope, are held to be public pur- poses, such as to justify the appropriation of state funds in their aid or for exhibiting the resources and products of the state. °^ And ■an appropriation to pay a claim against the state is not invalid because the claim is not of such a nature as to be enforceable at law, but the legislature may recognize and pay a claim founded on justice and ■equity or resting on a merely moral obligation.^^ Irrepealable Laws. Every legislative body, unless restricted by the constitution, may modify or abolish the acts of its predecessors. And there is no way ssOxnard Beet Sugar Co. v. State, 73 Neb. 57, 105 N. W. 716; Michigan Corn Imp. Ass'n v. Auditor General, 150 Micli. 69, 113 N. W. 582 ; Deering & Co. V. Peterson, 75 Minn. 118, 77 N. W. 568; Deal v. Mississippi County, 107 aio. 464, 18 S. W. 24, 14 L. R. A. 622; Parkersburg v. Brown, 108 U. S. 487, 1 Sup. Ct. 442, 27 L. Ed. 238 ; Citizens' Saving & Loan Ass'n v. Topeka, 20 Wall. 655, 22 L. Ed. 455 ; Commercial Nat. Bank v. lola, 2 Dill. 353, Fed. Cas. No. 3,061; English v. People, 96 111. 566; Blssell v. City of Kankakee, ^4 111. 249, 21 Am. Rep. 554; Welsmer v. Village of Douglas, 64 N. Y. 91, .21 Am. Rep. 586 ; Allen v. Inhabitants of Jay, 60 Me. 124, 11 Am. Rep. 185 ; Brewer Brick Co. v. Inhabitants of Brewer, 62 Me. 62, 16 Am. Rep. 395. But compare United States v. Realty Co., 163 TJ. S. 427, 16 Sup. Ct. 1120, 41 L. Ed. 215. See "States," Dec. Dig. (Key No.) §§ lU, 119; Cent. Dig. §§ 113, 118. 90 Dimmit County v. Frazier (Tex. Civ. App.) 27 S. W. 829 ; In re Bounties, 18 Colo. 273, 32 Pac. 423 ; Bickerdike v. State, 144 Cal. 681, 78 Pac. 270. See "Bounties," Dec. Dig. (Key No.) § S; Gent. Dig. § 42. 91 Daggett V. Colgan, 92 Cal. 53, 28 Pac. 51, 14 L. R. A. 474, 27 Am. St. Rep. '95 ; Norman v. Kentucky Board of Managers of World's Columbian Exposi- tion, 93 Ky. 537, 20 S. W. 901, 18 L. R. A. 556 ; City of MinneapQlls v. Jan- ney, 86 Minn. Ill, 90 N. W. 312 ; Kentiicky Live Stock Breeders' Ass'n v. Hag- er, 120 Ky. 125, 85 S. W. 738, 27 Ky. Law Rep. 518. In Russ v. Common- wealth, 210 Pa. 544, 60 Atl. 169, 1 L. R. A. (N. S.) 409, 105 Am. St. Rep. 825, It was held that there was nothing in the constitution of Pennsylvania to prohibit the legislature from attending a patriotic celebration in another state in a body or to prevent the payment of their expenses for meals out of the public funds. See "States," Dec. Dig. (Key No.) §§ m, 119; Cent. Dig. §§ lis, 118. »2McSurely v. McGrew (Iowa) 118 N. W. 415; State v. Froehllch, 118 Wis. 129, 94 N. W. 50, 61 L. R. A. 345, 99 Am. St. Rep. 985; Civic Federa- tion V. Salt Lake County, 22 Utah, 6, 61 Pac. 222; Lycoming County v. Union ■County, 15 Pa. 166, 53 Am. Dec. 575 ; New Orleans v. Clark, 95 U. S. 654, 24 1. Ed. 521. See "States," Deo. Dig. (Key No.) § 119 j Cent. Dig. § 118. § 142) PRIVATE!, SPECIAL, AND LOCAL LEGISLATION. 369 in which a legislative act can be made irrepealable, except it assume the form and substance of a contract."' Nor can one legislature be bound by the acts of another as to the mode in which it shall exercise its constitutional powers.** PRIVATE, SFECIAI., AND LOCAL LEGISLATIOX. 142. In most of the states, the enactment of private, local, or spe- cial lanrs is forbidden by the constitution. In some of the states, this restriction extends only to cases in which general laws could be made applicable. In others, many sub- jects are enumerated on which private or special legislation is for- bidden. In several of the states, the prohibition is directed against the enactment of private or local statutes regulating the internal affairs of towns and counties. Many state constitutions also provide that charters of incorporation shall be granted only in accordance with general laws, and not by special acts of the legislature. In some of the states, a still different form is found, which provides that all laws of a general nature shall be uniform in their operation throughout the state. All these provisions are mandatory, and any laws which are found to be in violation of them will be declared unconstitutional by the courts. The object of provisions of this sort is twofold. On the one hand, they are designed to deter the legislature from usurping judicial func- tions and invading the peculiar province of the courts. And on the other hand, they are intended to prevent the enactment of laws char- acterized by favoritism, partiality, or invidious discriminations against persons or localities. A constitutional prohibition is needed to with- draw such power from the legislature. Where there is no constitu- tional restriction against the passage of private or local laws, they are within the legislative competency and the courts cannot hold them unconstitutional."" A private statute is one which operates only upon particular persons or private concerns.** And a law is "local" which, 93 Bloomer v. Stolley, 5 McLean, 158, Fed. Cas. No. 1,559. See "Statutes," Dec. Dig. (Key No.) § U9; Cent. Dig. § 218. 94 Brightman v. Kirner, 22 Wis. 54. See "Statutes," Dec. Dig. (Key No.) § U9; Cent. Dig. § 218. 9 5 Beyman v. Black, 47 Tex. 558. See "Statutes," Dec. Dig. (Key No.) S 66; Cent. Dig. § 67. 96 1 Bl. Oomm. 86 ; Gubner v. McClellan, 130 App. Dlv. 716, 115 N. T. Supp. 755. See "Statutes," Dec Dig. (Key No.) § 77; Cent. Dig. § 79. Bl.Const.L.(3d.Ed.)— 24 370 ' LEGISLATIVE POWER IN THE STATES. (Ch. 13 instead of relating to and binding all persons, corporations, or institu- tions to which it may be applicable, within the whole territorial juris- diction of the law-making power, is limited in its operation to certain districts of such territory or to certain individual persons or corpora- tions." The fact that a statute is limited as to the time of its dura- tion does not make it a local or special law, but such an act is termed a temporary one. A local or special statute is one limited in the ob- jects to which it applies ; , a temporary statute is limited merely in its duration. Necessarily a local or special law may be perpetual, while a general law may be temporary."^ A good illustration of laws of this objectionable character is found in a statute passed in In- diana in 1879, "legalizing the practice of circuit courts in entering judgments on the first day of the term." It was held to be unconsti- tutional, as being both local and special in its provisions. It was special because it did not apply to all judgments which might have been or might be taken on the first day of the term. And it was local because it did not in terms legalize the judgments of all the circuit courts of the state which had been theretofore taken on the first day of the term, but only of such of those courts as had "adopted rules of practice making the summons in civil causes returnable on the first day of the term." »* The prohibition against local and special laws is not to be evaded by merely calling the statute a general law. This device has many times been frustrated by the courts. A law which purports by its terms to be made for the whole state^ but which then proceeds by exceptions, reservations, or provisos, to withdraw from its operation all but one or a few persons, or a special class of persons, or all but one or a few cities or counties, is in reality a private or local law, and will be so declared by the judicial department.^"" Thus, an 87 Kerrigan v. Force, 68 N. Y. 381. See State v. Pitts (Ala.) 49 South. 441. See "Statutes," Dec. Dig. (Key Vo.) § 77; Cent. Dig. § 79. 3 8 People V. Wright, 70 111. 388. See "Statutes," Dec. Dig. (Key No.) § 77; tent. Dig. § 79. 9» Mitchell V. McCorkle, 69 Ind. 184. See "Statutes," Dec. Dig. (Key No.) § lOJ,; Cent. Dig. § 116. 100 State V. Herrmann, 75 Mo. 340; State v. Mayor, etc., of Jersey City, 45 N. J. Law, 297 ; Belleville & I. R. Co. v. Gregory, 15 111. 20, 58 Am. Dec. 5^9 ; Coutieri v. Mayor, etc., of City of New Brunswick, 44 N. J. Law, 58 ; Woodard V. Brien, 14 Lea (Tenn.) 520; City of Topeka v. Gillett, 82 Kan. 431, 4 Pac. 800 ; State v. City of Lawrence, 79 Kan. 234, 100 Pac. 485. Bee "Statutes," Deo. Dig. {Key No.) §§ 66-104; Cent. Dig. §§ 67-116. § 142) PEIVATE, SPECIAL, AND LOCAL LEGISLATION. 371 act which by its terms can have application to but one county within the state, although purporting to be a general law, applicable to all counties having a certain population, is special legislation/*"^ But a law in relation to cities and villages is not necessarily a local or special law because there may be certain cities and villages, organized under special charters, to which it does not apply.^"^ But an act relating to the fees of the sheriff of a single county is clearly a local act.^"' In Pennsylvania, it is held that the classification of the cities of the state according to their population (with reference to their form of govern- ment and their corporate powers) is a proper and constitutional method, and is not open to objection on the charge of being special legislation.^"* But it is also there ruled that an act excluding per- petually from its operation all counties containing more than 150,000 or less than 10,000 inhabitants is a local law; for the perpetual ex- clusion of certain counties from the operation of a law is not a classi- fication of the counties.^"' In New York, where the constitution prohibits the passage of local or private bills for "laying out or open- ing roads, highways, or alleys," it is considered that this is not ap- plicable to streets in cities.^"' In those states where the constitution prohibits local or special laws only in cases where a general law could be made applicable, there has been some difference of opinion as to what department of the government is to determine whether or not a general law could have been made applicable to the case in point. The better opinion seems to be that while the legislature must determine this question in the first instance, yet their decision is not final or conclusive, but the courts must also consider and decide upon the applicability of a general law, when the act passed is regularly presented to them for review, and 101 Devlne v. Board of Com'rs of Cook County, 84 111. 590. See "Statutes," Dec. Big. (Key No.) § 77; Cent. Dig. § 81. lozpotwin V. Johnson, 108 111. 70; People v. Newburgh & S. P. R. Co., 86 N. T. 1. See "Statutes," Deo. Dig. (Key No.) § 77; Cent. Dig. § 79. 108 Gaskin v. Meek, 42 N. Y. 186. See "Statutes," Dec. Dig. (Key No.) §§ 77, 102; Cent. Dig. §§ 79, lU. 104 Wheeler v. City of Philadelphia, 77 Pa. 338; Commonwealth v. Patton, 88 Pa. 258. And see City of Louisville v. Com. (Ky.) 121 S. W. 411. See "Statutes," Dec. Dig. (Key No.) §§ 77, 92; Cent. Dig. §§ 79, 101. 10 5 Morrison v. Bachert, 112 Pa. 322, 5 Atl. 739. See "Statutes," Dec. Dig. (Key No.) § 77; Cent. Dig. § 81. 108 In re Lexington Ave., 29 Hun (N, Y.) 303. iSee "Statutes," Dec. Dig. (Key No.) § 97; Cent. Dig. § 109. 372 LEGISLATIVE POWER IN THE STATES. (Ch. 13 must decide upon its constitutionality according to their opinion of the facts."^ In some of the states, as above mentioned, the constitution contains a provision against the enactment of private or special laws "'regulat- ing the internal affairs of towns and counties." It is held that this applies equally to cities.^"' It is violated by a law which, while general in form, seirves but to give a salary to a single- officer of a single county,^"* as also by a statute conferring upon all cities having a pop- ulation of not less than 25,000 the power of issuing bonds to fund their floating debt.^^" In those states where the legislature is prohibited from creating corporations by special act, or from conferring corpo- rate powers by special law, this provision is understood as applying only to private corporations and not to municipal bodies.^ ^^ It does not prohibit the legislature from passing a special act changing the name of an existing corporation and giving it the power to purchase the property and franchises of another existing corporation. ^^^ But an act granting rights to a single corporation in reference to specific property in a certain location is void under this prohibition.^^' The other form of prohibition tnentioned in the text (that requir- ing that all laws of a general nature shall be uniform in their opera- tion) is quite different in its meaning and effects. It does not entirely !»' State V. Mayor, etc., of Newark, 40 N. J. Law, 71; People v. Allen, 42 N. X. 378. Compare Board of Com'rs for Filling Certain Slough Ponds in City of St; Louis v. Shields, 62 Mo. 247. And see Guthrie Nat. Bank v. Guth- rie, 173 U. S. 528, 19 S,up. Ct. 513, 43 L. Ed. 796 ; Board of Com'rs Kearney County, Kan., v. Vandriss, 115 Fed. 866, 53 C. O. A. 192 ; Mt. Vernon v. Evans & Howard Fire Brick Co., 204 111. 32, 68 N. E. 208 ; Wheeler v. Herbert, 152 Cal. 224, 92 Pac. 353 ; Buist v. City Council of Charleston, 77 S. O. 260, 57 S. E. 862 ; City of Oak Cliff r. State, 97 Tex. 383, 79 S. W. 1. See "Constitu- tional Law," Dec. Dig. (Key No.) § 70; Oont. Dig. § ISO. 108 State V. Parsons, 40 N. J. Law, 1. See "Statutes," Dec. Dig. {Key No.) § 94; Cent. Dig. § 103. 100 Glbbs V. Morgan, 39 N. J. Eq. 126. See "Statutes," Dec. Dig. {Key No.) § 102; Cent. Dig. § Hi. 110 State v. City of Trenton, 42 N. J. Law, 486. See "Statutes," Dec. Dig. (Key No.) § 77; Cent. Dig. § 81. 111 State V. Mayor, etc., of Newark, 40 N. J. Law, 71. But see Straw v. Harris (Or.) 103 Pac. 777. See "Statutes," Deo. Dig. (Key No.) §§ 80, 90; Cent. Dig. §§ 89, 99. 112 Wallace v. Loomis, 97 U. S. 146, 24 L. Ed. 895. See "Statutes," Dec. Dig. (Key No.) § 80; Cent. Dig. § 87. 118 In re Union Ferry Co. of Brooklyn, 32 Hun (N. X.) 82. See "Statutes," Deo. Dig. {Key No.) i 79j Cent. Dig. § 8J,, §§ 143-144) DELEGATION OP LEGISLATIVE POWEKS. 373 forbid the enactment of local or special laws. A statute is understood to be general and uniform in its operation when it operates equally upon all persons who are brought within the relations and circum- stances provided for;^^* or when it applies equally to all persons within the territorial limits described in it, although not applying to all parts of the state.^^' A revenue law, for example, is constitutional, so far as concerns this provision, if it affects, as nearly as possible, all persons and property alike ; a revenue law which should be absolutely equal in its operation is an impossibility.^^' So an act fixing the rate of interest which may be charged by pawnbrokers is not in violation of this provision. ^^^ The constitutions of many of the states contain provisions to 'the effect that there shall be no grant of special privileges, immunities, or emoluments to any citizen or class of citizens, unless in consideration of public services rendered. This, however, it is considered, has no reference to the private relations of the citizens, nor to the action of the legislature in passing laws regulating the domestic policy and busi- ness affairs of the people or any portion of them.^^* DELEGATION OF I.EGISI.ATIVE POWERS. 143. Iiegislatlve potrers granted to the legislature by the const! tu- tion cannot he delegated by It to any other body or person. 144. This principle does not apply to— (a) The grant to nvunlcipal corporations of legislative powers for local purposes. (b) Xiocal option laws. (c) General laws which are to take effect upon a future contin- gency, other than ratification by popular vote. 11* McAunlch v. Mississippi & M. R. Co., 20 Iowa, 338. See "Statutes," Dec. Dig. (Key No.) § 71; Cent. Dig. § 71. 110 Cordova v. State, 6 Tex. App. 207. See "Statutes," Dec. Dig. (Key No.) § 68; Cent. Dig. § 70. 118 People V. Coleman, 4 Cal. 46, 60 Am. Dec. 581. See "Statutes," Deo. Dig. (Key No.) § 72; Cent. Dig. § 72. 117 Jackson v. Shawl, 29 Cal. 267. See "Constitutional Law," Dec Dig. (Key No.) I 205; Cent. Dig. § 615; "Pawnbrokers," Cent. Dig. § 6; "Usury," Cent. Dig. § U9. lis Williams v. Cammack, 27 Miss. 209, 61 Am. Dec. 508. And see Smith's Adm'r v. Smith, 1 How. (Miss.) 102. See "Constitutional Law," Dec, Dig. (Key No.) IS 204-208; Cent. Dig. §§ 391-677. 374 LEGISLATIVE POWER IN THE STATES. (Ch. 13 Delegation of Legislative Powers Forbidden. It is a general principle of constitutional law that the power con- ferred upon the legislature by the constitution to make laws cannot be delegated by that body to any other person or authority, in any such manner as to preclude the resumption of the power, or of its exercise, whenever the public interest requires it. The legislators are the agents or trustees of the people, and they have no right or power to place the trust irrevocably in other hands than their own.^^^ On the same principle, the legislature cannot confer upon a private corporation power to enact by-laws contravening, repealing, or in any wise changing the statutory or common law of the state.^^" But this rule does not forbid the legislature to grant a franchise or right dependent on a condition of obtaining consent from another body. For instance, it may create a corporation with power to lay a street railroad, subject to the condition of obtaining the consent of the city to the use of the street. '■^^ Municipal Corporations. Municipal corporations are regarded as subordinate agencies of government, created with a view to the more judicious and effective administration of local governmental affairs. The legislature has power to erect such corporations, and to invest them with such powers and prerogatives as are necessary to enable them to make rules for the government of their own affairs, particularly in mat- ters of taxation and police, provided that their by-laws and ordi- 110 Clark v. Mayor, etc., of Washington, 12 Wheat. 40, 54, 6 L. Ed. 544; City of Philadelphia v. Fox, 64 Pa. 169; Ex parte Cox, 63 Cal. 21; Brown V. Fleischner, 4 Or. 132; Rice v. Foster, 4 Har. (Del.) 479; Cincinnati, W. & Z. R. Co. V. Clinton County Com'rs, 1 Ohio St. 77 ; State v. Young, 29 Minn. 474, 9 N. W. 737; Burcher v. People, 41 Colo. 495, 93 Pac. 14, 124 Am. St. Rep. 143 ; State v. Budge, 14 N. D. 532, 105 N. W. 724 ; Ruggles v. Collier, 43 Mo. 353 ; People v. Hanrahan, 75 Mich. 611, 42 N. W. 1124, 4 L. R. A. 751 ; State V. Great Northern R. Co., 100 Minn. 445, 111 N. W. 289, 10 L. R. A. (N. S.) 250; Thalheimer v. Board of Sup'rs of Maricopa County (Ariz.) 94 Pac. 1129; Brookings County v. Murphy (S. D.) 121 N. W. 793; Wyeth v. Board of Health of Olty of Cambridge, 200 Mass. 474, 86 N. E. 925, 128 Am. St. Rep. 439. See "Constitutional Law," Dec. Dig. (Key No.) §§ 59-66; Gent. Dig. §§ 120 Seneca County Bank v. Lamb, 26 Barb. (N. X.) 595. See "Constitutional Law," Dec. Dig. (Key No.) § 64; Cent. Dig. § 92. 121 City of Philadelphia v. Lombard & S. St. Pass. Ry. Co., 4 Brewst. (Pa.) 14 ; People ex rel. Blanding v. Burr, 13 Cal. 343. See "Constitutional Law," Dec. Dig. (Key No.) §§ 63, 66; Cent. Dig. §§ 109, 115. §§ 143-144) DELEGATION OF LEGISLATIVE POWERS. 375 nances shall not be inconsistent with the general laws of the state. This is not to be regarded as an unlawful delegation of legislative power. For the legislature retains control over such corporations, to the extent that it may, in its discretion, resume or recall the powers granted out, unless in so far as these powers are secured to the mu- nicipalities by the constitution.^ ^^ For similar reasons, statutes creat- ing municipal corporations or providing a form of government for them, imposing liabilities upon them or authorizing them to incur obligations, consolidating municipalities or changing the boundary line between them, changing the location of county seats or authorizing the annexation of territory, may be referred to the people of the dis- tricts immediately affected, to decide by their votes whether they will accept the proposed legislation; but the legislature must enact a complete and valid law according to the prescribed usages, and it must derive its whole vigor and vitality from the legislature, and no additional efficacy from the popular vote.^^^ So the enactment of a law comprising general and uniform regulations for cities and totvns 122 People V. Pinckney, 32 N. Y. 377; State v. Noyes, 30 N. H. 279; Perry V. City of Rockdale, 62 Tex. 451 ; Little Rock v. North Little Rock, 72 Ark. 195, 79 S. W. 785 ; Spiegler v. Chicago, 216 111. 114, 74 N. E. 718 ; Chicago Union Traction Co. v. Chicago, 199 111. 484, 65 N. E. 451, 59 L. R. A. 631 ; City of Baton Rouge v. Butler, 118 La. 73, 42 South. 650; Welch v. Swasey, 193 Mass. 364, 79 N. E. 745; Andreas v. Beaumont (Tex. Civ. App.) 113 S. W. 614 ; People v. Ahearn, 193 N. T. 441, 86 N. E. 474 ; Commonwealth v. Kings- bury, 199 Mass. 542, 85 N. E. 848, 127 Am. St. Rep. 513 ; McSurely v. McGrew (Iowa) 118 N. W. 415 ; Spokane v. Camp, 50 Wash. 554, 97 Pac. 770, 126 Am. St. Rep. 913 ; State v. Mathls, 149 N. C. 546, 63 S. E. 99 ; Moore v. City of Georgetown, 105 S. W. 905, 32 Ky. Law Rep. 315; Woodrough v. Douglas County, 71 Neb. 354, 98 N. W. 1092; Agua Pura Co. of Las Vegas v. Mayor, etc., of City of Las Vegas, 10 N. M. 6, 60 Pac. 208, 50 L. R. A. 224 ; Sluder v. St. Louis Transit Co., 189 Mo. 107, 88 S. W. 648, 5 L. R. A. (N. S.) 186 ; Town of Ocean Springs v. Green, 77 Miss. 472, 27 South. 743 ; Board of Metropoli- tan Police V. Board of Auditors of Wayne County, 68 Mich. 576, 36 N. W. 743 ; Lake Charles v. Roy, 115 La. 939, 40 South. 362. But see Horton v. City Council and City Treasurer of Newport, 27 R. I. 283, 61 Atl. 759; Vallelly V. Board of Park Com'rs of Park Dist. of City of Grand Forks, 16 N. D. 25, 111 N. W. 615 ; Mitchell v. State, 134 Ala. 392, 32 South. 687. See "GonstUu- timal Law," Deo. Dig. (Key. No.) § 83; Cent. Dig. §§ lOS-Wf 123 Lammert v. Lidwell, 62 Mo. 188, 21 Am. Rep. 411 ; Clarke v. Rogers, 81 Ky. 43 ; Stone v. 'City of Charlestown, 114 Mass. 214 ; Attorney General V. Township Board of Springwells, 143 Mich. 523, 107 N. W. 87; People v. Town of Ontario, 148 Cal. 625, 84 Pac. 205 ; Wheeler v. Herbert, 152 Cal. 224, 92 Pac. 353 ; Eekerson v. City of Des Moines, 137 Iowa, 452, 115 N. W. 177 ; State V. Holland, 37 Mont. 393, 96 Pac. 719 ; Stanton v. Board of Sup'rs of Essex County, 191 N. Y. 428, 84 N. E, 380 ; Graham v. Roberts, 200 Mass. 152, 376 LEGISLATIVE POWER IN THE STATES. (Ch. 13 throughout the state, and leaving to a popular vote in each munici- pality the question whether it shall become subject to such law, is not an unconstitutional delegation of legislative power.^" Local Option Laws. "A local option" law is a law framed for the purpose of prohibiting, or severely restricting, the sale of intoxicating liquors, and contain- ing a provision that the several counties, townships, or other divi- sions of the state, may hold elections to determine by popular vote whether they desire the law to be in force in their limits, and with a further provision that in each case where such election results in favor of the adoption of the. law, it shall take effect in the district so voting, but that each district rejecting it shall continue to be governed, in this respect, by the existing laws. In some few cases such laws have been ruled unconstitutional, on the ground that they delegated the power of the legislature. But the very great preponderance of authority is to the effect that such a statute, if it is a complete enact- ment in itself, requiring nothing further to give it validity, and de- pending upon the popular vote for nothing but a determination of the territorial limits of its operation, is a valid exercise of the legislative power.^'"' The same rule has been applied to the exercise of local option in relation to some other subjects, such as the organization of irrigation districts,^^" and school districts subject to certain special conditions of taxation.^^' 85 N. E. 1009 ; Orrick v. Ft. Worth (Tex. Civ. App.) 114 S. W. 677. See "Corir- stitutional Law," Dec. Dig. {Key No.) §§ 65, 66; Cent. Dig. §§ 115-122. 124 Guild V. City of Chicago, 82 111. 472; Armstrong v. Tray lor, 87 Tex. 598, 30 S. W. 440; Hamilton v. Carroll, 82 Md. 326, 33 Atl. 648; Bradshaw V. I/ankford, 73 Md. 428, 21 Atl. 66, 11 L. R. A. 582, 25 Am. St. Kep. 602. See "Constitutional Law," Dee. Dig. (Key No.) §§ 65, 66; Cent. Dig. §§ 115-122. 126 Weil V. Calhoun (C. C.) 25 Fed. 865; State v. Court of Common Pleas of Morris County, 36 N. J. Law, 72, 13 Am. Rep. 422 ; State v. Pond, 93 Mo. 606, 6 S. W. 469; Locke's Appeal, 72 Pa. 491, 13 Am. Rep. 716; Common- wealth V. Dean, 110 Mass. 357; Village of Gloversville v. Howell, 70 N. Y. 287 ; Anderson v. Commonwealth, 13 Bush (Ky.) 485 ; Gordon v. State, 46 Ohio St. 607, 23 N. B. 63, 6 L. R. A. 749 ; In re O'Brien, 29 Mont. 530, 75 Pac. 196 ; In re McGonnell's License, 209 Pa. 327, 58 Atl. 615; State v. Barber, 19 S. D. 1, 101 N. W. 1078 ; State v. Kline, 50 Or. 426, 93 Pac. 237 ; People v. Mc- Bride, 234 111. 146, 84 N. E. 865, 123 Am. St. Rep. 82. See "Constitutional Law," Deo. Dig. (Key No.) | 65; Cent. Dig. § 116; "Intoxicating Liquors," Cent. Dig. i 16. 126 Fallbrook Irr. Dist. v. Bradley, 164 tJ. S. 112, 17 Sup. Ct. 56, 41 L. Ed. 369. See "Constitutional Law," Dec. Dig. (Key No.) § 65; Cent. Dig. § 116. Ill Coleman v. Board of Education of Emanuel County, 131 Ga. 643, 63 §§ 143-144) DELEGATION OF LEGISLATIVE POWERS. 377 Conditional Legislation. There is no provision in the American systems for a referendum on general subjects of legislative action, unless it may be in very rare and exceptional instances. The legislature is elected and authorized to make the lav^fs. For that purpose the legislative power of the people is confided 'to them. That power cannot regularly be resumed and exercised by the people themselves. Neither can it be referred back to the people by the legislature in any particular instance. Delega- tion of legislative power to the people at large, from whom it was derived, is just as much against the spirit of the constitution as a delegation of it to one citizen. Nor can the legislature be allowed to shirk the responsibility of deciding upon the laws which should be made.^"' For these reasons it is held that the law-making body has no power, in enacting a general law, applicable to all the people of the state, to make its taking effect conditional upon the casting of a popular vote in its favor. For instance, the legislature, in enacting a law granting the right of suffrage to women, has no constitutional power to provide that the act shall take effect throughout the state on its acceptance by a majority vote of the electors.*^' But a general law may be made to depend upon some contingency (other than rati- fication by popular vote) as to when it shall take effect in a particular locality,^''" or made dependent upon a future contingency as to whether it shall take effect at all,^'^ even though that contingency be some ac- tion on the part of the legislature of another state ; as, in the case of S. E. 41. See "Constitutional Law," Dec. Dig. (Key No.) |§ 65, 66; Cent. Dig. §§ 115-122. 128 Ex parte Wall, 48 Cal. 279, 17 Am. Rep. 425; Schwartz v. People, 46 Colo. 239, 104 Pac. 92. iSfee "Constitutional Law," Dec. Dig. (Key No.) § 66; Cent. Dig. §§ 115-122. 129 Opinion of Justices, 160 Mass. 586, 36 N. E. 488, 23 L. R. A. 113. But see People v. McBride, 234 111. 146,, 84 N. E. 865, 123 Am. St. Rep. 82; Rouse V. Thompson, 228 111. 522, 81 N. E. 1109. As to the validity of the primary election laws recently enacted In several of the states, see State v. Felton, 77 Ohio St. 554, 84 N. E. 85 ; Morrow v. Wipf (S. D.) 115 N. W. 1121 ; State v. Blalsdell (N. D.) 118 N. W. 141. See "Constitutional Law," Dec. Dig. (Key No.) §§ 65, 66; Cent. Dig. ?§ 115-122. 130 People V. Hoffman, 116 111. 587, 5 N. E. 596, 8 N. E. 788, 56 Am. Rep. 798. Bee "Statutes," Dec. Dig. {Key No.) § 77; Cent. Dig. § 80; "Constitur tional Law," Dec. Dig. (Key No.) § 70; Cent. Dig. § 131. 181 Schulherr v. Bordeaux, 64 Miss. 59, 8 South. 201; Ward v. State, 154 Ala. 227, 45 South. 655 ; Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Commission of Wisconsin (Wis.) 116 N. W. 905, 17 L. R. A. (N. S.) 821 ; Mer- chants' Exchange of St. Louis v. Knott, 212 Mo. 616, 111 S. W. 565 ; State v. 378 LEGISLATIVE POWER IN THE STATES. (Ch. 13 a "reciprocity" clause relating to the conditions on which foreign cor- porations shall be admitted to do business in the state."^ ENACTMENT OF LAWS. 145. State constitutions commonly include provisions regulating the enactment of laws by the legislature, as follows: (a) No law can be passed except by bill. (b) Bills for raising revenue must originate in the loiver house. (c) Every bill, before it becomes a law, must be read a certain number of times in each house. laws requiring such companies to build and maintain highway crossings laid out over their track," or to build and maintain a bridge where the track crosses a turnpike road ; '^ laws providing that, where two railroad tracks cross each other at grade, a watchman shall be maintained at the joint expense of the companies, and that all trains shall come to a full stop and wait for signal before crossing at the junction ; " laws requiring locomo- tives to carry a bell of a certain weight and a steam whistle, and to ring the bell or blow the whistle five hundred yards before road cross- ings, and making the failure to give such signals negligence per se; " laws providing that, at all railroad crossings, the railroads crossing there shall erect and maintain suitable depots and waiting rooms to accommodate passengers ; *" laws requiring that, in the formation of mixed trains, the baggage and freight cars shall be placed in front of the passenger coaches ; ^^ laws forbidding railroad companies to heat their cars with stoves or furnaces kept inside the cars or sus- pended therefrom;*^ laws requiring them to provide spark-arresters for locomotives, to keep headlights of a certain reflective power on engines, and to keep on hand certain means of escape in case of col- lisions or fires; laws requiring them annually to publish their tariff of rates for the transportation of passengers and freight ; *^ laws 7 5 Cincinnati, H. & D. R. Co. v. Sullivan, 32 Oliio St. 152. See "Railroads," Deo. Dig. (Key No.) § 753; Cent. Dig. § S3S. 76 Portland & R. R. Co. v. Inhabitants of Deering, 78 Me. 61, 2 Atl. 670, 57 Am. Rep. 784. See "Constitutional Law" Dec. Dig. (Key No.) § 125; Cent. Dig. § i02. " People V. Boston & A. R. Co., 70 N. T. 569. See "Railroads," Dec. Dig. (Key No.) § 9^; Cent. Dig. § 266V2. 7 8 Lake Shore & M. S. Ry. Co. v. Cincinnati, S. & C. Ry. C«., 30 Ohio St. 604 ; Detroit, Ft. W. & B. I. R. Co. v. Osborn. 189 U. S. 383, 23 Sup. Ct. 540, 47 L. Ed. 860. See "Railroads," Dec. Dig. (Key Ko.) § 89; Cent. Dig. § 23Jt. 79 Kamlnitsky v. Northeastern R. Co., 25 S. C. 53. See "Railroads," Dec. Dig. (Key No.) § 2U; Cent. Dig. § 755. 8 State of Missouri v. Kansas City, Ft. S. & G. R. Co. (C. C.) 32 Fed. 722; State V. Wabash, St. L. & P. Ry. Co., 83 Mo. 144. See "Railroads," Dec. Dig. (Key No.) § 58; Gent. Dig. § 130. 81 Arkansas M. Ry. Co. v. Canman, 52 Ark. 517, 13 S. W. 280. See "Rail- roads," Dec. Dig. (Key No.) § 227; Cent. Dig. § 7^1. 8 2 People V. New York, N. H. & H. R. Co. (Sup.) 5 N. Y. Supp. 945; New York, N. H. & H. R. 'Co. v. New York, 165 U. S. 628, 17 Sup. Ct. 418, 41 L. Ed. 853. See "Railroads," Dec. Dig. (Key No.) §§ 229, 25i; Cent. Dig. §§ 7Jf3, 765. 8 3 Chicago & N. W. R. Oo. v. Fuller, 17 Wall. 560, 21 L. Ed. 710. See "Commerce," Dec. Dig. (Key No.) § 58; Cervt. Dig. § 77. § 155) POLICE POWER OF THE STATES. 407 requiring that all railroad ticket offices shall be opened for the sale of tickets at least an hour before the departure of each train ;'* laws providing that all passenger trains shall stop at least five minutes at each station, unless it should plainly appear that the vested rights of the company were unduly prejudiced by such a regulation.^^ The same principles apply to laws requiring street railway companies to equip their cars with air or electric brakes/" and with automatic fenders/^ and with screens for the protection of the motorman; ^* as also to laws compelling railroads crossing each other to put in con- necting switches and transfer cars ; ** laws obliging them to maintain such connections with the trains of other roads as are necessary to accommodate the traveling public ; '" and to admit railroad companies to terminal facilities in cities. °^ But a law giving the occupant of a lower sleeping-car berth control at his option of the upper berth, in case it is not occupied, is unconstitutional.'^ And so is a statute re- quiring railroad companies to sell mileage books. °' As to injuries re- sulting from the operation of railroads, it is competent to make them 84 Brady v. State, 15 Lea (Tenn.) 628. See "Carriers" Dec. Dig. (Key No.) § 21; Cent. Dig. § 53. 8 5 Galveston, H. & S. A. R. Co. v. Le Gierse, 51 Tex. 189. And see Louisi- ana & A. R. Co. V. State, 85 Ark. 12, 106 S. W. 960. See "Railroads," Deo. Dig. (Key No.) §§ 12, 227. 86 People V. Detroit United Ry., 134 Mich. 682, 97 N. W. 36, 63 L. R. A. 746, 104 Am. St. Rep. 626. See "Street Railroads," Dec. Dig. (Key No.) §' 73; Cent. Dig. § 153. 87 City of Ellihart v. Murray, 165 Ind. 304, 75 N. E. 593, 1 L. R. A. (N. S.) 940, 112 Am. St. Rep. 228. See "Constitutional Law," Dec. Dig. (.Key No.) § 241; Gent. Dig. §§ 700, 701. 88 State V. WKitalser, 160 Mo. 59, 60 S. W. 1068. See "Constitutional Law," Dec. Dig. (Key No.) §§ 208, 296, 297; Cent. Dig. §§ 654, 832-835. 8 9 Jacobson v. Wisconsin, M. & P. R. Co., 71 Minn. 519, 74 N. W. 893, 40 L. R. A. 389, 70 Am. St. R«p. 358; Wisconsin, M. & P. R. Co. v. Jacobson, 179 U. S. 287, 21 Sup. Ct. 155, 45 L. Ed. 194. See "Constitutional Law," Dec. Dig. (Key No.) §f 297; Cent. Dig. §§ 832-831 80 Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, 206 U. S. 1, 27 Sup. Ct. 585, 51 L. Ed. 933. See "Constitutional Law," Dec. Dig. (Key No.) §§ 241, 297; Cent. Dig. §§ 700, 70i, 832-834- 91 State V. Jacksonville Terminal Co., 41 Pla. 377, 27 South. 225. See "Con- stitutional Law," Dec. Dig. (Key No.) § 297; Cent. Dig. §§ 832-834- 92 state V. Redmon, 134 Wis. 89, 114 N. W. 137, 14 L. R. A..(N. S.) 229, 126 Am. St. Rep. 1003. See "Constitutional Law," Dec. Dig. (Key No.) §§ 81, 297. 93 Commonwealth v. Atlantic Coast Line R. Co., 106 Va. 61, 55 S. E. 572, 7 L. R. A. (N. S.) 1086, 117 Am. St. Rep. 983. See "Constitutional Law," Deo. Dig. (Key No.) § 297. 408 THE POLICE POWEB, (Ch. 14 liable for damages for stock killed in consequence of their neglect to fence their road or provide cattle guards/^ and also liable for prop- erty destroyed by fire communicated by their locomotives;'^ and to make common carriers liable for loss or damages to goods in course of transportation, whether occurring on their own lines or on connect- ing lines/" and liable for injuries to passengers, irrespective of the company's negligence or fault, unless the injury was caused by the passenger's own criminal negligence or disregard of a lawful rule of the company brought to his actual notice.'^ The reason why railroad companies may be subjected to such severe regulation under the police power is that their business is a public one, and very materially con- cerns the safety as well as the comfort and convenience of the public at large."* Regulation of Trades and Professions. In the exercise of the police power, the state may limit the right of employment. Trades and kinds of business which are essentially nox- ious may be altogether prohibited by the legislature, if it shall deem such action conducive to the public welfare. No person can have a 94 Minneapolis & St L. R. Co. v. Becksvith, 129 U. S. 26, 9 Sup. a. 207, 32 L. Ed. 585; Missouri Pac. R. Oo. v. Humes, 115 U. S. 512, 6 Sup. Ct. 110, 29 L. Ed. 463 ; Birmingham Mineral R. Co. v. Parsons, 100 Ala. 662, 13 South. 602, 27 L. R. A. 263, 46 Am. St; Rep. 92; Terre Haute & L. R. Co. v. Sal- mon, 161 Ind. 131, 67 N. E. 918 ; Yazoo & M. V. R. Co. v. Harrington, 85 Miss. 366, 37 South. 1016. See "Railroads," Dec. Dig. (Key Wo.) § 103; Cent. Dig. §§ 763, 763; "Constitutional Law," Dec. Dig. (Key No.) §§ 2fl7, 302; Cent. Dig. M 83i, 854- 95 St. Louis & S. F. R. Oo. V. Mathews, 165 U. S. 1, 17 Sup. Ct. 243, 41 L. Ed. 611 ; Grissell v. Housatonlc R. Co., 54 Conn. 447, 9 Atl. 137, 1 Am. St. Rep. 138; Lumbermen's Mut. Ins. Co. v. Kansas City, Ft. S. & M. R. Co., 149 Mo. 165, 50 S. W. 281 ; Brown v. Carolina Midland Ry., 67 S. C. 481, 46 S. E. 283, 100 Am. St. Rep. 756. See "Railroads," Dec. Dig. (Key No.) § 468; Cent. Dig. § 1664. 96 Smeltzer v. St. Louis & S. F. R. Co. (0. C.) 158 Fed. 649. See "Constitu- tional Law," Deo. Dig. (Key No.) §§ 89, 297; Cent. Dig. §§ 832-834. 97 Chicago, R. I. & P. R. Co. v. Eaton, 183 U. S. 589, 22 Sup. Ct. 228, 46 L Ed. 341; Clark v. Russell, 97 Fed. 900, 38 C. C. A. 541. But see Zeigler v' South & N. A. R. Co., 58 Ala. 594; Ohio & M. Ry. Oo. v. Lackey, 78 111. 55, 20 Am Rep 259- State v. Divine, 98 N. 0. 778, 4 S. E. 477. See "Constitu- tional Law," Dec. Dig. (Key No.) §§ 297, 301; Cent. Dig. §§ 832-834, 848-850, 857. 98 New York & N. E. R. Co. v. Bristol, 151 U. S. 556, 14 Sup. Ct. 437, 38 U Ed. 269; Goddard v. Chicago & N. W. R. Co., 202 111. 362, 66 N. B. 1066. See "Constitutional Law," Dec. Dig. (Key No.) §§ 88, 24I; Cent. Dig. I 700. § 155) POLICE POWER OF THE STATES. 409 right to engage in the business of gambling, prostitution, or any other avocation which is contra bonos mores. So also, the legislature may lawfully forbid the prosecution of any business which, though not in- herently vicious or immoral, is regarded as contrary to public policy, or amounts to a depredation upon the lawful rights of others." An illustration of this would be the business which is popularly known as "ticket scalping." ^"'^ In the next place, there are certain occupations and professions in which the safety of the public, in regard to life, health, or property, is closely and vitally dependent upon the posses- sion, by those who practice them, of a competent degree of skill, knowl- edge or technical training. And it is within the police power of the state to restrict the right to engage in such professions or occupations to those persons who can show, in some prescribed manner, a satis- factory qualification for their pursuit.^"^ This principle applies to the professions of physicians and surgeons,^"^ attorneys at law,*"* «» Gatewood v. North Carolina, 203 U. S. 531, 27 Sup. Ct. 167, 51 L. Ed. 305. S^e "Constitutional Law," Dec. Dig. (Key No.) § 2^0 ; Cent. Dig. §| 688-699. 100 City of Chicago v. Openheim, 229 111. 313, 82 N. E. 294; Burdick v. People, 149 111. 600, 36 N. E. 948, 24 L. E, A. 152, 41 Am. St. Rep. 329 ; Fry V. State, 63 Ind. 552, 30 Am. Rep. 238 ; State v. Manford, 97 Minn. 173, 106 N. W. 907 ; State v. Oorbett, 57 Minn. 345, 59 N. W. 317, 24 L. R. A. 498 ; State V. Thompson, 47 Or. 492, 84 Pac. 476, 4 L. R. A. (N. S.) 480 ; Common- wealth V. Keary, 198 Pa. 500, 48 Atl. 472 ; Samuelson v. State, 116 Tenn. 470, 95 S. W. 1012, 115 Am. St. Rep. 805 ; Ex parte Hughes, 50 Tex. Cr. R. 614, 100 S. W. 160 ; Jannin v. State, 42 Tex. Cr. R. 631, 51 S. W. 1126, 96 Am. St. Rep. 821 ; In re O'Neill, 41 Wash. 174, 83 Pac. 104, 3 L. R. A. (N. S.) 558. But in California and New York statutes prohibiting this business are held unconstitutional. Ex parte Quarg, 149 Cal. 79, 84 Pac. 706, 5 L. R. A. (N. S.) 183, 117 Am. St. Rep. 115 ; People v. Caldwell, 168 N. T. 671, 61 N. E. 1132 ; People V. Warden of City Prison, 157 N. T. 116, 51 N. E. 1006, 43 L. R. A. 264, 68 Am. St. Rep. 763.. See "Constitutional Law," Dec. Dig. (Key No.) §? 87, S39, 278; Cent. Dig. § 828. 101 Ex parte Whitley, 144 Cal. 167, 77 Pac. 879. See "Constitutional Law," Deo. Dig. (Key No.) § 208; Cent. Dig. § 651. 102 Dent V. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231, 32 L. Ed. 623; People V. Phippin, 70 Mich. 6, 37 N. W. 888; Hewitt v. Charier, 16 Pick. (Mass.) 353; Ex parte Spinney, 10 Nev. 323; Austin v. State, 10 Mo. 591; State V. Forcier, 65 N. H. 42, 17 Atl. 577 ; Wilkins v. State, 113 Ind. 514, 16 N. E. 192 ; People v. Gordon, 194 111. 560, 62 N. E. 858, 88 Am. St. Rep. 165 ; 108 In re Bradwell, 55 111. 535; Bradwell v. Illinois, 16 Wall. 130, 21 L. Ed. 442 ; In re O'Brien's Petition, 79 Conn. 46, 63 Atl. 777. See In re Percy, 36 N. Y. 651. See "Constitutional Law," Dec. Dig. (Key No.) § 275; Cent. Dig. i 8iS; "Attorney mi Client," Dec. Dig. (Key No.) 11; Cent. Dig. § 8. 410 THE POLICE POWER. (Ch. 14 druggists and pharmacists,"* dentists,"" plumbers,"" pilots and mas- ters of ships,^"^ barbers,^"' locomotive engineers,^"' and railroad em- ployes in general, so far as regards testing them for color blindness and defective vision.^" But there is no justification of this kind for a law requiring the examination and licensing of persons engaged in the trade of horseshoeing.^^^ In the next place, measures may be taken for the protection of persons unfitted for the more toilsome kinds -of labor, as women and children, and for keeping them out of trades •or occupations detrimental to their health or strength or injurious to State V. Wilcox, 64 Kan. 789, 68 Pac. 634 ; Allopathic State Board of Medical Examiners v. Fowler, 50 La. Ann. 1358, 24 South. 809; Commonwealth v. Finn, 11 Pa. Super. Ct. 620 ; Parks v. State, 159 Ind. 211, 64 N. E. 862, 59 li. R. A. 190. But a statute regulating the practice of medicine which should ■discriminate in favor of or against one school of medicine would not be valid. White V. Carroll, 42 N. Y. 161, 1 Am. Rep. 503. But see State v. Marble, 72 Ohio St. 21, 73 N. E. 1063, 70 L. R. A. 833, 106 Am. St. Rep. 570, as to dis- crimination against "Christian Scientists." See "Constitutional Lato" Deo. Dig. (Key No.) §§ 208, 296; Cent. Dig. §§ 651, 830; "Physicians and Sur- geons," Deo. Dig. (Key No.) §§ 1, 2; Cent. Dig. §§ 1, 2. 104 Noel V. People, 187 111. 587, 58 N. E. 616, 52 L. R. A. 287, 79 Am. St. Rep. 238; State v. Kumpfert, 115 La. 950, 40 South. 365; State v. Heine- mann, 80 Wis. 253, 49 N. W. 818, 27 Am. St. Rep. 34. See "Constitutional Law," Dec. Dig. (Key No.) §§ 287, 296; Cent. Dig. §§ 8S0, 831. 105 Gothard v. People, 32 Colo. 11, 74 Pac. 890; State v. Chapman, 70 N. J. Law, 339, 57 Atl. 1133. See "Constitutional Laio," Dec. Dig. (Key No.) § 208; Cent. Dig. § 651. 106 Singer v. Maryland, 72 Md. 464, 19 Atl. 1044, 8 L. R. A. 551; Douglas V. People, 225 111. 536, 80 N. E. 341, 8 L. R. A. (N. S.) 1116, 116 Am. St. Rep. 162. But see State v. Gardner, 58 Ohio St. 599, 51 N. E. 130, 41 L. R. A. 689, 65 Am. St. Rep. 785. See "Constitutional Law," Dec. Dig. (Key No.) § 296; Cent. Dig. § 830. 107 Patterson v. Board of Oom'rs of Pilots for Port of Galveston, 24 Tex. Civ. App. 33, 57 S. W. 1002. See "Constitutional Law," Deo. Dig. (Key No.) 88. 108 State V. Walker, 48 Wash. 8, 92 Pac. 775; State v. Armeno (R. I.) 72 Atl. 216. Compare Templar v. State Board of Examiners of Barbers, 131 Mich. 254, 90 N. W. 1058, 100 Am. St. Rep. 610. See "Constitutional Law," Dec. Dig. (Key No.) §§ 81, 83, 88, 208, 230, 275. 109 Smith V. Alabama, 124 U. S. 465, 8 Sup. Ct 564, 31 L. Ed. 508. See ^'Commerce," Dec. Dig. (Key No.) § 58; Cent. Dig. § 85. 110 Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 9 Sup. Ct. 28, 32 L. Ed. 352. See "Commerce," Deo. Dig. (Key No.) § 58; Cent. Dig. § 85. 111 Bessette v. People, 193 111. 334, 62 N. E. 215, 56 L. R. A. 558; People v. Seattle, 96 App. Dlv. 383, 89 N. T. Supp. 193 ; In re Aubry, 36 Wash. 308, 78 Pac. 900, 104 Am. St. Rep. 952. See "Constitutional Law," Deo. Dig. (Key No.) %r2^5, 287. § 155) POLICE POWER OF THE STATES. 411 their morals.*^* Further the proper scope of police regulations ex- tends to those kinds of business which are devoted to a public or quasi public use, or which offer peculiar opportunities for deceit, fraud, or oppression. In this class we may include the business of laundries in cities,^^' that of hawkers and peddlers, pawnbrokers, and junk deal- ers,^^* and some others. ^^^ But in general the ordinary and common trades, callings, and forms of business, which are innocuous in them- selves and have been followed in all communities from time imme- morial, are not subject to interference or restraint under the pre- tence of police regulations, and must be free to all alike on the same terms. ^^* Subject to this qualification, the conduct of a business, as well as the right to engage in it, may be regulated by law. Thus, the hour for closing saloons and restaurants may be fixed by law, and the 112 Blair v. Kilpatriclc, 40 Ind. 312 ; In re Maguire, 57 Cal. 604, 40 Am. Eep. 125; Ex parte Hayes, 98 Cal. 555, 33 Pac. 337, 20 L. R. A. 701; People v. Ewer, 141 N. Y. 129, 36 N. E. 4, 25 L. R. A. 794, 38 Am. St. Rep. 788. See "Constitutional Laio," Deo. Dig. (Key No.) § 23-J; Cent. Dig. § 725. 113 Barbler y. Connolly, 113 U. S. 27, 5 Sup. Ct 357, 28 L. E(3. 923; Ex parte White, 67 Cal. 102, 7 Pac. 186. See "Municipal Corporations," Dec. Dig. (Key No.) § 611; Cent. Dig. § 1347; "Constitutional Law," Dec. Dig. (Key No.) §§ SI, 238; Cent. Dig. §§ US, 696. 114 Servonitz v. State, 133 Wis. 231, 113 N. W. 277, 126 Am. St. Rep. 955; State y. Cohen, 73 N. H. 543, 63 Atl. 928 ; Phillips v. State, 77 Ohio, 214, 82 N. E. 1064; Commonwealth v. Mintz, 19 Pa. Super. Ct. 283. See "Hawkers and Peddlers," Dec. Dig. (Key No.) § i; Cent. Dig. § 1; "Licenses," Dec. Dig. (Key No.) § 5; Cent. Dig. §§ //, 19. 115 See, as to nurserymen, Ex parte Hawley (S. D.) 115 N. W. 93, 15 L. R. A. (N. S.) 138 ; homestead associations, American Homestead Co. v. Karsten- diek, 111 La. 884, 35 South. 964 ; real-estate brokers, City of St. Louis y. Mc- Cann, 157 Mo. 301, 57 S. W. 1016 ; employment agencies, People y. Warden of City Prison, 183 N. Y. 223, 76 N. E. 11, 2 L. R. A. (N. S.) 859 ; emigrant agents, Williams v. Fears, 179 U. S. 270, 21 Sup. Ct. 128, 45 L. Ed. 186 ; keepers of sailors' boarding houses. White v. Holman, 44 Or. 180, 74 Pac. 933; foreign corporations, Roeder y. Robertson, 202 Mo. 522, 100 S. W. 1086. See "Consti- tutional Law," Dec. Dig. (Key No.) §§ 87, 207, 211, 230, 240, 278, 296; "Mo- nopolies," Dec. Dig. (Key No.) § 4. lis Butchers' Union S. H. & L. S. L. Co. y. Crescent City Live Stock Land- ing & S. H. Co., Ill U. S. 746, 4 Sup. Ct. 652, 28 L. Ed. 585 ; People v. Ringe, 125 App. Diy. 592, 110 N. Y. Supp. 74 ; Emerson y. Town of McNeil, 84 Ark. 552, 106 S. W. 479, 15 L. R. A. (N. S.) 715; Young y. Commonwealth, 101 Va. 853, 45 S. E. 327 ; State v. Walker, 48 Wash. 8, 92 Pac. 775 ; Wyeth y. Board of Health of City of Cambridge, 200 Mass. 474, 86 N. E. 916, 128 Am. St. Rep. 439. See "Constitutional Law," Dec. Dig. {Key No.) §§ 81, 208, 238; Cent. Dig. U US, 649-677, 688-699, 706-708. 412 THE POLICE POWER. . (Ch. 14- sale of intoxicating liquors in refreshment saloons may be prohib- ited;"^ but an ordinance requiring groceries and dry goods stores to close at a designated hour of the evening is void,"' and the courts have been unanimous in condemning as unconstitutional the statutes enacted in many states forbidding merchants to issue "trading stamps" or coupons as a means of advertising or stimulating trade.^^' Regulation of Charges and Prices. It was once customary, in England and on the continent, for laws or royal proclamations to be issued regulating the rates of charges to be made for various kinds of services, the wages of labor, and alsO' the price of various commodities. But the modern idea of freedom in business requires that such matters shall be left almost wholly tO' private arrangement. Government interference, in fixing wages or prices, is regarded as an unlawful invasion of personal liberty, ex- cept in so far as it may be justified by public exigencies. There are still, however, some cases in which private arrangements may be con- trolled by public law, under the police power. The authorities have the power to fix or regulate prices and charges when the business in question is one "affected with a public interest." It is not easy to say what this phrase exactly means. Bflt the authorities appear to use it as descriptive of a business which is indispensable to the comfort or convenience of the whole community, or which directly affects so large a proportion of the people that the public prosperity and wel- fare may be considered to depend, in some measure, upon its being conducted upon fair and just principles and without unreasonable exactions. ^^^ But even in respect to occupations of this class, the 1" state V. Freeman, 38 N. H. 426; State v. Clark, 28 N. H. 176, 61 Am. Dec. 611. See "Constitutional Law," Dec. Dig. (Key l^lo.) § 81; Cent. Dig. §i67. lis State V. Ray, 131 N. C. 814, 42 S. E. 960, 60 L. R. A. 634, 92 Am. St. Rep. 795 ; Coaticook v. Lothrop, Rap. Jud. Que. 22 C. S. 225. See "Municipal Cor- porations," Dec. Dig. (Key No.) § 615; Cent. Dig. § 1353. 119 Ex parte Hutchinson (C. C.) 137 Fed. 950; Ex parte Drexel, 147 Cal. 763, 82 Pac. 429, 2 L. R. A. (N. S.) 588 ; State v. Ramseyer, 73 N. H. 31, 58 Atl. 958 ; People v. Zimmerman, 102 App. Div. 103, 92 N. Y. Supp. 497 ; People V. Dycker, 72 App. Div. 308, 76 N. Y. Supp. Ill ; State v. Dalton, 22 R. I. 77, 46 Atl. 234, 48 L. E. A. 775, 84 Am. St. Rep. 818 ; State v. Dodge, 76 Vt 197, 56 Atl. 983 1 Young v. Commonwealth, 101 Va. 853, 45 S. E. 327 ; Leonard v. Basslndale, 46 Wash. 301, 89 Pac. 879. See "Constitutional Law," Dec. Dig. (Key No.) §§ 81, 89, 258, 287, 2.95. 120 Munn V. Illinois, 94 U. S. 113, 126, 24 L. Ed. 77. And see People v. Steele, 231 111. 340, 83 N, B. 236, 14 L. R. A. (N. S.) 361, 121 Am. St Rep. 321, i 155) POLICE POWER OF THE STATES. 413 power of the state is limited by the rule that a power to limit or regu- late is not a power to destroy, and the legislature may not compel such persons to lend their services without reward, nor can it appropriate their property for public use except upon compensation made ; neither ■can it, in the exercise of this power, establish regulations obviously and grossly unjust or discriminating.^''^ The class of persons whose business is affected with a public inter- ■est clearly includes common carriers. Thus, in consequence of the public nature of the services performed by railroad companies, the state has power to regulate the charges they may make for their services and accommodations, at least in so far as to require that they shall not be unreasonable in amount.^^^ The same rule applies to •companies furnishing gas and electricity to municipal corporations and their inhabitants,^^* and to public-service water and irrigation com- holding that a business is affected with a public interest where the one .en- gaged in it is acting under a franchise, or has a virtual monopoly in it, or where, from the nature of the business, the one carrying it on is necessarily ■entrusted with the property or money of his customers, or where the business tas been conducted in such manner that the public have adapted their business •to the methods used ; but the mere fact that licenses are required does not make the business a public employment. See "Oonstitutional Law," Dec. Dig. (Key No.) §§ 81, 88, 89, 2^2; Cent. Dig. § 691. 121 Munn V. Illinois, 94 U. S. 113, 24 L. Ed. 77; Wabash, St. L. & P. R. Co. T. Illinois, 118 U. S. 557, 7 Sup. Ct. 4, 30 L. Ed. 244 ; Western Union Tel. Co. V. Myatt (C. C.) 98 Fed. 335 ; Central of Georgia R. Co. v. Railroad Commis- sion of Alabama (C. C.) 161 Fed. 925. See "Constitutional Law," Dec. Dig. (Key No.) §§ 2^1, S98; Cent. Dig. §§ 7W, 8.47. 122 Smyth V. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819 ; Chicago, B. & Q. R. Co. V. Iowa, 94 U. S. 155, 24 L. Ed. 94 ; Dow v. Beidelman, 125 U. S. 680, 8 Sup. Ct. 1028, 31 L. Ed. 841. An act prohibiting and punishing "rebat- ing" is valid and constitutional. United States, v. Vacuum Oil Co. (D. C.) 158 Fed. 536; United States v. Standard Oil Co. (D. C.) 155 Fed. 305. So is a •statute requiring street railway companies to carry school children at half rates. Commonwealth v. Interstate Consol. St. R. Co., 187 Mass. 436, 73 N. E. 530, 11 L. R. A. (N. S.) 973. But not one requiring them to transport police- -men free of charge. Wilson v. United Traction Co., 72 App. Div. 233, 76 N. T. Supp. 203. Nor one requiring them to sell mileage books at reduced rates. Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 19 Sup. Ct. 565, 43 L. Ed. .858 ; Beardsley v. New York, L. E. & W. R. Co., 162 N. Y. 230, 56 N. E. 488 ; State V. Great Northern R. Co. (N. D.) 116 N. W. 89. See "Constitutional Law," Dec. Dig. (Key No.) §§ Ul, 242, 29S; Cent. Dig. §§ 691, 701, 847; "Car- riers," Dec. Dig. (Key No.) §§ 12, 26-28; Cent. Dig. §§ 7-20, 67-82. 123 Richman v. Consolidated Gas Co., 114 App. Div. 216, 100 N. T. Supp. 81 (affirmed 186 N. T. 209, 78 N. Ev 671) ; Trustees of Village of Saratoga Springs •V. Saratoga Gas, Electric Light, Heat & Power Co., 122 App. Div. 203, 107 N. 414 THE POLICE POWER. (Ch. 14 panics/^* and to telegraph companies/" turnpike road companies,"* proprietors of grain elevators which are declared by law to be public warehouses/^^ public mills, whether for the sawing of lumber or the grinding of grain/^s and fire insurance companies.^^" But the ordi- nary and common avocations are not within this category ; and even in respect to those which are distinctly affected with a public interest, the state has no authority to fix their rates or charges so unreasonably low as practically to destroy the value of their property; for this is- confiscation, not regulation.^^° Rates or charges so fixed are unrea- sonable if they are below the cost of service, or if they do not permit the company affected to earn a reasonable income on its capital or to earn such compensation as, under all the circumstances, is just alike to it and to the public.^ ^^ The reasonableness, from this point of Y. Supp. 341. See "Constitutional Law," Dec. Dig. (Key No.) §§ 135, 242, 298; Cent. Dig. §§ 380-38T, 691, 847. 12* Tampa Waterworks Co. v. Tampa, 199 U. S. 241, 26 Sup. Ct. 23, 50 L. Ed. 170 ; Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, 91 N. W. 1081 ; San Joaquin & King's River Canal Irrigation Co. v. Stanislaus County (C. C.) 90 Fed. 516. See "Constitutional Law," Dec. Dig. (Key No.) §§ 135, 242, 298; Cent. Dig. §§ 380-387, 691, 847. 125 Western Union Tel. Co. v. Myatt (C. C.) 98 Fed. 335. See "Constitutional Law," Dec. Dig. (Key No.) §§ 135, 242, 298; Cent. Dig. §§ 380-387, 691, 847. 120 Covington & h. Turnpike Road Co. v. Sandford, 164 U. S. 578, 17 Sup. Ct 198, 41 L. Ed. 560. See "Constitutional Law," Dec. Dig. (Key No.) §§ 135,- 242, 298; Cent. Dig. §§ 380-387, 691, 847. 127 Munn V. Illinois, 94 U. S. 113, 24 L. Ed. 77; Budd v. New York, 143 U.- S. 517, 12 Sup. Ot. 468, 36 L. Ed. 247. See "Constitution^ Law," Dec. Dig. (Keg No.) §§ 242, 298; Cent. Dig. §§ 691, 847. 128 state V. Edwards, 86 Me. 102, 29 Atl. 947, 25 L. R. A. 504, 41 Am. St. Rep. 528. See "Constitutional Law," Dec. Dig. (Key No.) § ,298; Cent. Dig.^ 1847. 129 Commonwealth v. Vrooman, 164 Pa. 306, 30 Atl. 217, 25 L. R. A. 250, 44 Am. St. Rep. 603. See "Constitutional Law," Dec. Dig. (Key No.) §§ 206,. 240, 287; Cent. Dig. §§ 634, 692, 831. ISO St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, 15 Sup. Ct. 484, 39 L. Ed.^ 567 ; Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819 ; Brooklyn Union Gas Co. v. City of New York, 50 Misc. Rep. 450, 100 N. Y. Supp. 570 ;. Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, 91 N. W. 1081. See "Constitutional Law," Dec. Dig. (Key No.) §§ 135, 242, 298; Cent. Dig. §§ 380- 387, 691, 84y. 131 Stanislaus County v. San Joaquin & K. River Canal & Irrigation Co., 192' U. S. 201, 24 Sup. Ot. 241, 48 L. Ed. 406 ; Minneapolis & St. L. R. Co. v. Minne- sota, 186 U. S. 257, 22 Sup. Ct. 900, 46 L. Ed. 1151 ; Wallace v. Arkansas Cent. R. Co., 118 Fed. 422, 55 O. O. A. 192 ; Western Union Tel. Co. v. Myatt (C. C.) 98 Fed. 335 ; Ball v. Rutland R. Co. (C, 0.) 93 Fed. 513 ; Milwaukee Electric- § 155) POLICE POWER OF THE STATES. 415 view, of rates or charges fixed by law is a proper subject of judicial inquiry, and if it is found that they are unreasonable, the courts have authority to declare the law invalid, as depriving the persons or com- panies affected of their property without due process of law.^^^ Regulation of Labor. In regard to the extent to which state interference may rightfully go in the regulation of labor and industrial employment, the rule de- ducible from the best authorities must be stated to be this : Any and all laws may be passed which may be necessary to protect the physical safety, health, or morals of the classes employed in these pursuits, or of the general public as affected by them, but beyond this the au- thority of the state is generally limited by the right of private contract. To illustrate, a law prohibiting the employment of women and young children in certain occupations and providing, as to others, that they shall not be required or allowed to work more than a certain number of hours per day or per week, is valid and constitutional.'-^* As to Ry. & Light Co. v. City of Milwaukee (C. C.) 87 Fed. 577. If a railroad com- pany has bonded its property for an amount that exceeds its fair value, or If its capitalization is largely fictitious, it may not impose upon the public the burden of increased rates, necessary to realize profits on such fictitious capi- talization ; but the basis of all calculations as to the reasonableness of rates must be the fair value of the property used by the company for the conven- ience of the public. In ascertaining this value, the original cost of construc- tion, the amount expended In permanent Improvements, the amount and mar- ket value of its bonds and stock, the present as compared with the original cost of construction (or what is called the "replacement value" of the plant), the probable earning capacity of the property under particular rates pre- scribed by statute, and the sum required to meet operating expenses, are all matters for consideration, and are to be given such weight as may be just and right in each case. Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819. See "Constitutional Law," Dec. Dig. (Key No.) §§ 125, 242, 298; Cent. Dig. §§ 380-S81, 691, 8^7. 132 St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, 15 Sup. Ct. 484, 39 L. Ed. 567 ; Stanislaus County v. San Joaquin & K. River Canal & Irrigation Co., 192 U. S. 201, 24 Sup. Ot. 241, 48 L. Ed. 406 ; Southern Pac. Co. v. Board of Rail- road Com'rs (C. C.) 78 Fed. 236 ; City of Madison v. Madison Gas & Electric Co., 129 Wis. 249, 108 N. W. 65, 8 L. R. A. (N. S.) 529. See "Constitutional Law," Dec. Dig. (Key No.) §§ 135, 242, 298; Cent. Dig. §§ 380-387, 691, 847. 133 Muller v. State of Oregon, 208 U. S. 412, 28 Sup. Ct. 324, 52 L. Ed. 551 ; In re Considine (C. C.) 83 Fed. 157 ; Ex parte Spencer, 149 Cal. 396, 86 Pac. 896, 117 Am. St. Rep. 137 ; Commonwealth v. Reinecke Coal MIn. Co., 117 Ky. 885, 79 S. W. 287 ; Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383 ; Wen- ham V. State, 65 Neb. 394, 91 N. W. 421, 58 L. R. A. 825 ; Bryant v. Sklllman Hardware '00. (N. J. Sup.) 69 Ati. 23 ; Starnes v. Albion Mfg. Co., 147 N. C, 416 THE POLICE POWER. (Ch. 14 these persons, the welfare of society is so intimately connected with regulations of this kind that there can be no question of their propri- ety. But as to the power of the legislature to fix the number of hours which shall constitute a day's labor, in other cases, there are serious doubts. Where the statute applies to employes on railways, such as train conductors and locomotive engineers, it is easily seen that the safety of travelers may depend on their not being overworked."* On somewhat different principles, but for substantial reasons, the courts have sustained the validity of statutes limiting the hours of labor in mines, ore mills, and smelters to eight hours a day; "° and they have generally, though with more hesitation and with a good deal of dis- sent, sanctioned laws making a similar restriction as to the hours of labor for workmen employed by the government of the United States and by state and municipal governments and contractors.^^" But in other cases, it is very doubtful whether such laws do not unwarrant- ably interfere with the right of private contract.^^' As to the safety and protection of laborers, laws designed for that 556, 61 S. E. 525, 17 L. R, A. (N. S.) 602 ; State v. Baker, 50 Or. 381, 92 Pac. 1076, 13 L. R. A. (N. S.) 1040, 126 Am. St. Rep. 751 ; State v. Shorey, 48 Or. 396, 86 Pac. 881 ; Commonwealth v. Beatty, 15 Pa. Super. Ct. 5 ; State v. Bu- chanan, 29 Wash. 602, 70 Pac. 52, 59 L. R. A. 342, 92 Am. St. Rep. 930. Con- tra, People V. Williams, 189 N. Y. 131, 81 N. B. 778; 12 D. R. A. (N. S.) 1130, 121 Am. St. Rep. 854. See "Constitutional Law," Deo. Dig. (Key No.) §§ 88, 89, 275, 276; Cent. Dig. §§ 137, m, 163, 8^3-846. 1S4 In re Ten-Hour Law for St. Ry. Corporations, 24 B. I. 603, 54 Atl. 602, 61 L. B. A. 612. See "Constitutional Daw," Dec. Dig. (Key No.) §§ 89, 206, 238, 275; Cent. Dig. §§ 137, 628, 688-699, 8JfS-8J,6. 136 Cantwell v. Missouri, 199 U. S. 602, 26 Sup. Ct. 749, 50 L. Ed. 329 ; Hol- deu V. 'Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780 ; Ex parte Boyce, 27 Nev. 299, 75 Pac. 1, 65 L. R. A. 47 ; Ex parte Kair, 28 Nev. 127, 80 Pac. 463, 113 Am. St. Rep. 817; State v. Livingston Concrete, Bldg. & Mfg. Co., 34 Mont. 570, 87 Pac. 980. Contra, In re Morgan, 26 Colo. 415, 58 Pac. 1071, 47 L. R. A. 52, 77 Am. St. Rep. 269. See "Constitutional Law," Dec. Dig. (Key No.) §§ 89, 206, 238, 273; Cent. Dig. §§ 137, 628, 688-699, 8Jf3-8J,6. 136 United States v. Martin, 94 U. S. 400, 24 L. Ed. 128; Atkln v. Kansas, 191 U. S. 207, 24 Sup. Ct. 124, 48 L. Ed. 148; In re Btoad, 36 Wash. 449, 78 Pac. 10O4, 70 L. B. A. 1011 ; People v. Metz, 193 N. Y. 148, 85 N. E. 1070. But compare People v. Orange County Road Const. Co., 175 N. y. 84, 67 N. E. 129, 65 L. R. A. 33 ; People v. Zimmerman, 58 Misc. Rep. 264, 109 N. T. Supp. 396 ; Cleveland v. Clements Bros. Const. Co., 67 Ohio St. 197, 65 N. E. 885, 59 L. R. A. 775, 93 Am. St. Rep. 670 ; City of Seattle v. Smyth, 22 Wash. 327, 60 Pac. 1120, 79 Am. St. Rep. 939. See "Constitutional Law," Dec. Dig. (Key No.) §§ 89, 238, 275; Cent. Dig. §§ 157, 688-699, 843-8^6. 187 Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937; In re § 155) POLICE POWER OF THE STATES. 417 purpose have almost invariably been sustained. This is true of stat- utes prescribing the means and manner of ventilation, of lighting, and of timbering to be employed in mines, and the precautions to be taken against injury from explosions.^** And so of laws providing for prompt medical and surgical care to injured miners,^'® and laws re- quiring dangerous machinery to be covered or otherwise made safe, requiring emery wheels to be provided with blowers to carry off the dust, and the like.^*" And in this connection we may mention the employer's liability acts recently adopted in many of the states, which abolish the "fellow servant rule" and make employers liable for in- juries sustained in their service by their employes even though caused by the fault or negligence of a co-employe, and which provide that no contract restricting such statutory liability shall be legal or binding. These statutes have been sustained with practical unanimity.^*^ Eight-Hour Bill, 21 Colo. 29, 39 Pac. 328. See "Constitutional Law," Dec. Dig. (Key No.) §§ 89, Z06, 238, 275; Cent. Dig. i§ 157, 638, 688-699, 843-846. 13 8 Common wealth v. Bonnell, 8 Phila. (Pa.) 584; Chandler Coal Co. v. Sams, lYO Ind. 623, 85 N. E. 341 ; State v. Murlin, 137 Mo. 297, 38 S. W. 923 ; Davis Coal Co. v. Polland, 158 Ind. 607, 62 N. E. 492, 92 Am. St Rep. 319 ; In re Williams, 79 Kan. 212, 98 Pac. 777. See "Constitutional Law," Dec. Dig. {Key No.) §§ 89, 20$, 240; Cent. Dig. §§ 157, 654, 688-699. 130 Read V. Clearfield County, 12 Pa. Super. Ct. 419. See "Constitutional Law," Dec. Dig. (Key No.) § 205. "opeople V. Smith, 108 Mich. 527, 66 N. W. 382, 32 L. R. A. 853, 62 Am. St. Rep. 715. See "Constitutional Law," Dec. Dig. (Key No.) § 208; Cent. Dig. § 654. 141 Minnesota Iron Co. v. Kline, 199 U. S. 593, 26 Sup. Ct. 159. 50 L. Ed. 322; St. Louis Merchants Bridge Terminal R. Co. v. Callahan, 194 U. S. 628, 24 Sup. Ct. 857, 48 L. Ed. 1157 ; Tullis v. Lake Erie & W. R. Co., 175 U. S. »48, 20 Sup. Ot. 136, 44 L. Ed. 192; United States v. Adair (D. C.) 152 Fed. 737 ; Snead v. Central of Georgia R. Co. (C. C.) 151 Fed. 608 ; Kane v. Erie R. Co., 133 Fed. 681, 67 C. C. A. 653, 68 L. R. A. 788 ; Rio Grande Sampling Co. V. Catlin, 40 Colo. 450, 94 Pac. 323 ; Vindicator Consol. Gold Min. Co. v. Firstbrook, 36 Colo. 498, 86 Pac. 313 ; Atlantic Coast Line R. Co. v. Beazley, 54 Fla. 311, 45 South. 761 ; Pittsburgh, C, O. & St. L. R. Co. v. Lighthelser, 168 Ind. 438, 78 N. E. 1083 ; Indianapolis Union Ry. Co. r. Houlihan, 157 Ind. 494, 60 N. E. 943, 54 L. R. A. 787 ; Pittsburgh, C, C. & St. L. R. Co. r. Hosea, 152 Ind. 412, 53 N. B. 419 ; McGuire v. Chicago, B. & Q. R. Co., 131 Iowa, 340, 108 N. W. 902 ; Mumford v. Chicago, R. I. & P. R. Co., 128 Iowa, 685, 104 N. W. 1135 ; Mobile, J. & K. C. R. Co. v. Hicks, 91 Miss. 273, 46 South. 360, 124 Am. St. Rep. 679 ; Bradford Const. Co. v. Heflin, 88 Miss. 314, 42 South. 174 ; Powell V. Sherwood, 162 Mo. 605, 63 S. W. 485 ; Hancock v. Norfolk & W. Ry. Co., 124 N. C 222, 32 S. E. 679; Galveston, H. & S. A. B. Co. v. Gibson (Tex. CIT. App.) 54 S. W. 779 ; Indianapolis Traction & Terminal Co. v. Kinney, 171 Bi-.CoNST.Ii.(3D.ED.)— 27 4:18 THE POLICE POWER. (Ch. 14: As to the wages of labor, it is not competent for the state to pre- scribe a fixed or minimum rate of payment,^*^ though it may prohibit the garnishment of wages or the assignment of wages to become due."' A statute requiring all corporations, or certain classes of cor- porations, to pay their employes at stated intervals, as once a week or once a fortnight, is unconstitutional.^''* And so is a law which forbids the deduction from wages of any drawback for work spoil- ed,^*' although it seems that an employer discharging a workman be- fore pay-day may be forbidden to deduct anything from the wages due on account of payment being made before the contract time.^*° A law forbidding corporations to pay the wages of their employes in store orders or in scrip or in checks redeemable in goods or merr chandise, is also invalid as an interference with the right of contract.^*^ Ind. 612, 85 N. E. 954. See "Constitutional Law," Dec. Dig. (Key No.) § 2Jf5; Cent. Dig. § 702. 142 People V. Coler, 166'N. Y. 1, 59 N. E. 716, 52 L. B. A. 814, 42 Am. St. Rep. 605; Street v. Varney Electrical Supply Co., 160 Ind. 338, 66 N. E. 895, 61 L. R. A. 154, 98 Am. St. Rep. 325. See "Constitutional Law," Dec. Dig. (Key No.) §§ 89, 208; Cent. Dig. §§ 151. 655. 143 International Text-Book Co. v. Welssinger, 160 Ind. 349, 65 N. E. 521, 65 L. R. A. 599, 98 Am. St. Rep. 334. Compare In re Flukes, 157 Mo. 125, 57 S. W. 545, 51 L. R. A. 176, SO Am. St. Rep. 619. See "Constitutional Law," Dec Dig. (Key No.) §§ 249, 27,5; Cent. Dig. § 710. 144 Bracevllle Coal Co. v. People, 147 111. 66, 35 N. B. 62, 22 L. R. A. 340, 37 Am. St. Rep. 206 ; Skinner v. Garnett Gold Min. Co. (C. C.) 96 Fed. 735 ; Jolinson V. Goodyear Min. Co., 127 Cal. 4, 59 Pac. 304, 47 L. R. A. 338, 78 Am. St. Rep. 17 ; Toledo, St. L. & W. R. Co. v. Lgng, 169 Ind. 316, 82 N. E. 757, 124 Am. St. Rep. 226 ; Republic Iron & Steel Co. y. State, 160 Ind. 379, 66 N. E. 1005, 62 L. R. A. 136. But compare State v. Brown & Sliarpe Mfg. Co., 18 R. I. 16, 25 Atl. 246, 17 L. R. A. 856; Seeleyville Coal & Mining Co. v. Mc- Glosson, 166 Ind. 561, 77 N. E. 1044, 117 Am. St. Rep. 396 ; Lawrence v. Rut- land R. Co., 80 Vt. 370, 67 Atl. 1091, 15 L. R. A. (N. S.) 350 ; New York Cent. & H. R. B. Co. V. Williams, 64 Misc. Rep. 15, 118 N. Y. Supp: 785. See "Con- stitutional Laio," Dec. Dig. (Key No.) §§ 238, 27d; Cent. Dig. § 690. 145 Commonwealth v. Perry, 155 Mass. 117, 28 N. E. 1126, 14 L. R. A. 325, 31 Am. St. Rep. 533. See "Constitutional Law," Dec. Dig. (Key No.) § 87/ Cent. Dig. § 169. 146 St Louis, I. M. & S. R. Co. v. Paul, 173 U. S. 404, 19 Sup. Ct 419, 43 L. Ed. 746. See "Constitution. R. A. 534, 99 Am. St. Rep. 783 ; Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co. (C. C.) 54 Fed. 730, 737, 19 L. R. A. 387, Taft, J. See "Constitutional Law," Dec. Dig. (Key No.) § 88; Cent. Dig. §§ W,, 165; "Conspiracy," Dec. Dig. (Key No.) § S; Cent. Dig. § 10. 168 Rex V. Journeymen Tailors of ■Cambridge, 8 Mod. -10; State v. Donald- son, 32 N. J. Law, 151, 90 Am. Dec. 649; Crump's Case, 84 Va. 927, 6 S. E. i22 THE POLICE POWER. (Ch. 14 charged employes, or to combine together to prevent such employes from obtaining work, and statutes forbidding them to do so are not unconstitutional. ^^° Regulation of Use and Improvement of Property. The police power of the state over private property and the use and enjoyment of it is based on the principle that no one may so use his own as to injure others, and that all owners may be restricted or controlled so far as may be necessary for the protection of the public safety, health and comfort.^^" Thus, the use of property for carry- ing on noxious, offensive, or dangerous trades may be prohibited or G20, 10 Am. St. Rep. 895 ; State v. Stewart, 59 Vt. 273, 9 Atl. 559, 59 Am. Rep. 710; Casey v. Cincinnati Typographical Union No. 3 (C. C.) 45 Fed. 135, 12- L. R. A. 193 ; Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co. (C. C.) 54 Fed. 730, 19 L. R. A. 387 ; Walker v. Cronin, 107 Mass. 555 ; State v. Glldden, 55 Conn. 46, 8 Atl. 890, 3 Am. St. Rep. 23; Carew v. Rutherford, 106 Mass. 1, 8 Am. Rep. 287; Moores & Co. v. Bricklayers' Union, 23 Wkly. Law Bui. (Ohio) 48 ; People v. Wilzig, 4 N. T. Cr. R. 403 ; People v. Kostka, Id. 429 ; Coeur D'Alene Consolidated & Mining Co. v. Miners' Union of Wardner (C. C.) 51 Fed. 260, 19 L. R. A. 382 ; Sherry v. Perkins, 147 Mass. 212, 17 N. E. 307, 9 Am. St. Rep. 689 ; Commonwealth v. Hunt, 4 Mete. (Mass.) 131 ; Old Domin- ion S. S. Co. V. MeKenna (C. O.) 30 Fed. 48; Commonwealth v. Curren, 3 Pittsb. (Pa.) 143 ; In re Higgins (C. C.) 27 Fed. 444 ; Roge.rs v. Evarts (Sup.) 17 N. T. Supp. 264; United States v. Kane (C. C.) 23 Fed. 748; Blindell v. Hagan (C. C.) 54 Fed. 40 ; Jordahl v. Hayda, 1 Cal. App. 696, 82 Pac. 1079 ; Mathews v. People, 202 111. 389, 67 N. B. 28, G3 L. R. A. 73, 95 Am. St. Rep. 241 ; Iron Molders' Union v. AUis-Chalmers Co., 166 Fed. 45, 91 C. 0. A. 631, 20 L. R. A. (N. S.) 315 ; Jones v. Maher, 62 Misc. Rep. 388, 116 N. Y. Supp. 180. But see Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133, 67 S. W. 391, 56 L. R. A. 951, 90 Am. St. Rep. 440. See "ConstitwtionaZ Law," Deo. Dig. (Key No.) §§ 88, 89; Cent. Dig. §§ i57, 16i, 165; "Oonsviracy," Deo. Dig. (Key No.) §§ S, 30; Cent. Dig. §§ 7-11, 53-5T ; "Injunction," Dec. Dig. (Key No.) § 101; Cent. Dig. §§ Ilk, 115; "Master and Servant," Dec. Dig. (Key No.) §§ 15, 29, 336-3^5; Cent. Dig. §§ 28, 29, 1281-1289. 159 State V. Justus, 85 Minn. 279, 88 N. W. 759, 89 Am. St. Rep. 550; Joyce V. Great Northern R. Co., 100 Minn. 225, 110 N. W. 975, 8 L. R. A. (N. S.) 756. See "Constitutional Law," Deo. Dig. (Key No.) §§ 208, 211,; Cent. Dig. §§ 651, 65i, 726; "Conspiracy," Dec. Dig. (Key No.) § S; Cent. Dig. §§ 1-11; "Torts," Dec. Dig. (Key No.) § 10; Cent. Dig. § 10. 160 Plumas County v. Wheeler, 149 Oal. 758, 87 Pac. 909; City of Belleville V. St. Clair County Turnpike Co., 234 111. 428, 84 N. E. 1049, 17 L. R, A. (N. S.) 1071 ; People v. Steele, 231 111. 340, 83 N. E. 238, 14 L. R. A. (N. S.) 361, 121 Am. St. Rep. 821 ; Horan v. Byrnes, 72 N. H. 93, 54 Atl. 945, 62 L. B. A. 602, 101 Am. St. Rep. 670 ; State v. Whitlock, 149 N. C. 542, 03 S. E. 123 128 Am. St. Rep. 670. See "Constitutional Law," Dec. Dig. (Key No.) § 81; Cent. Dig. § U8. § 165) POLICE POWER OF THE STATES. 423 regulated; the management and disposition of property belonging to infants, lunatics, and persons under other disabilities may be the sub- ject of legislative action ; ^^^ laws may be enacted for the better and more economical management of the lands of adjoining owners where such property can be better improved by some joint operation, such as laws regulating the drainage or reclamation of such lands, or the con- struction of ditches and sewers, partition fences, and party walls ; ^'^ milling companies may be authorized to overflow the lands of upper riparian proprietors, by the construction of their dams and other works, on paying proper compensation;^'^ and the owners of city property may be required to remove the ice and snow from the side- walks in front of their houses.^'* To the same category belong the building regulations in many of our cities and states. These often go into great minuteness of detail, and furnish an illustration of the close- ness with which public authorities may scrutinize private operations in the interest of the public safety and health. Such laws may regu- late the height of buildings or prescribe a maximum height, either absolutely or in proportion to the width of the street; and they may also regulate all such matters as the thickness and strength of the walls, drainage and sewer connections, character of the plumbing, proper disposition of appliances for heating and lighting, elevators, skylights, fire-escapes, the number and character of exits in theatres 181 Brevoort v. Grace, 53 N. X. 245; Rice v. Parkman, 16 Mass. 326. See "Constitutional Law," Dec. Dig. (Key No.) §§ 51 93; Cent. Dig. §§ 57, 190. 162 Wurts V. Hoagland, 114 U. S. 606, 5 Sup. Ct. 1086, 29 L. Ed. 229 ; Coster V. Tide- Water Co., 18 N. J. Eq. 54; Turner v. Nye, 154 Mass. 579, 28 N. E. 1048, 14 L. R. A. 487. But compare Wilkins v. Jewett, 139 Mass. 29, 29 N. E. 214. See "Constitutional Law," Dec. Dig. (Key No.) §§ 294, 299 ; Cent. Dig. §§ 8X1, 852. 163 Head v. Amoskeag Mfg. Co., 113 U. S. 9, 5 Sup. Ot. 441, 28 L. Ed. 889. See "Constitutional Law." Dec. Dig. (Key No.) § 280; Cent. Dig. § 883. 164 In re Goddard, 16 Pick. (Mass.) 504, 28 Am. Dec. 259 ; State v. McCrillis, 28 R. I. 165, 66 Atl. 301, 9 L. R. A. (N. S.) 635 ; State v. McMahon, 76 Conn. 97, 55 Atl. 591 ; City of Helena v. Kent, 32 Mont. 279, 80 Pac. 258 ; Village of Carthage v. Frederick, 122 N. Y. 268, 25 N. E. 480, 10 U R. A. 178, 19 Am. St. Rep. 490 ; Moran v. New York, 98 App. Div. 301, 90 N. Y. Supp. 596 ; City of New York v. Brown, 27 Misc. Rep. 218, 57 N. Y. Supp. 742. But such laws have been held void in City of Chicago v. McDonald, 111 111. App. 436 ; Me- Gulre V. District of Columbia, 24 App. D. 0. 22 ; Holtzman v. United States, 14 App. D. C. 454 ; Gridley v. City of Bloomington, 88 111. 554, 30 Am. Riep. 566 ; City of Chicago v. O'Brien, 111 111. 532, 53 Am. Rep. 640 ; State v. Jackman, 69 N. H. 318, 41 Atl. 347, 42 L. R. A. 438. See "Municipal Corporations," Dec. Dig. (Key No.) § 677; Cent. Dig. § 1456. .424 ' THE POLICE POWBE. (Ch. 14 and public halls, signs on shops, piazzas and balconies, and other matters ; and their constitutional validity has almost always been sus- tained.i^^ But such regulations are not valid when, aside from any relation to the public safety, they have only an artistic or aesthetic purpose, as, to make all buildings in a given locality conform to the same general plan or architectural design or to prevent the erection of unsightly or unsymmetrical structures.^" On the same principle, a municipality may, under the police power, regulate the height of bill- boards and advertising signs, prohibit the erection of such as would be insecure, and take measures against the exhibition on any bill- boards of immoral or indecent pictures or advertisements, and pro- tect the community from any actual nuisance resulting from the use of them;^^' but it cannot forbid citizens to erect bill-boards or signs 16 6 People V. lyOench, 111 N. Y. 359, 18 N. E. 862; Johnson v. Shelter Island Grove & Camp-Meeting Ass'n, 122 N. T. 336, 25 N. E. 4S4 ; Fire Dept. of New York v. Atlas S. S. Co., 106 N. Y. 566, 13 N. B. 329 ; McRickard v. Flint, 114 N. Y. 222, 21 N. E. 153 ; Welch v. Swasey, 193 Mass. 364, 79 N. E. 745, 118 Am. St. Rep. 523; Cochran v. Preston, 108 Md. 220, 70 Atl. 113; Town of Montclalr v. Amend (N. J. Sup.) 68 Atl. 1067 ; Fellows v. Charleston, 62 W. Va. 665, 59 S. E. 623, 13 L. R. A. (N. S.) 737, 125 Am. St. Rep. 990 ; City of Marlon r. Robertson, 84 111. App. 113 ; Commonwealth v. La Bar, 5 Lack. Leg. N. (Pa.) 229 ; Halpine v. Barr, 21 D. C. 331. But compare Tilford v. Bel- knap, 126 Ky. 244, 103 S. W.. 289, 31 Ky. Law Rep. 662, 11 L. R. A. (N. S.) 708 ; Malone v. Williams, 118 Tenn. 390, 103 S. W. 798, 121 Am. St. Rep. 1002. In so far as building regulations apply to theatres, hotels, apartment houses, stores, and other places of public resort, their just relation to the public safe- ty is very apparent. But when applied to the construction, interior arrange- ment, and repair of strictly private residences, their validity is open to very serious question. "The public" can have very little concern with the arrange- ments which a citizen chooses to make for his own home, and ofBcial interfer- ence in such matters is repugnant to the spirit and the principles of freedom, and is capable of degenerating into an odious form of petty tyranny. See Harvey v. City of Elklns, 65 W. Va. 305, 64 S. El 247 ; Lantry v. Mede, 194 N. Y. 544, 87 N. E. 1121. See "Constitutional Law," Dec Dig. {Key No.) § 212; Cent. Dig. §§ 68^, 105; "Mimicipal Corporations," Deo. Dig. (Key No.) §§ 595, 601, SOS; Cent. Dig. §§ 1321, 1322, 1333, ISSJf. 166 Welch V. Swasey, 193 Mass. 364, 79 N. E. 745, 118 Am. St. Rep. 523 ; Com- monwealth V. Boston Advertising Co., 188 Mass. 348, 74 N. B. 601, 69 L. R. A. 817, 108 Am. St. Rep. 494 ; Bostock v. Sams, 95 Md. 400, 52 Atl. 665, 59 L. R. A. 282, 93 Am. St. Rep. 394. See "Constitutional Laio," Dee. Dig. (Key iNo.) §§ 81, 212; Cent. Dig. §§ H8, 684, 105; "Municipal Corporations," Dec. Dig. (Key No.) § 601; Cent. Dig. § 1333. 16 7 In re Wllshire (C. C.) 103 Fed. 620; Passaic v. Paterson Bill-Posting, Advertising & Sign Painting Co., 71 N. J. Law, 75, 58 Atl. 343 ; City of Roches- ter T. West, 31 App. Div. 635, 53 N. Y. Supp. 1101, s. c, 164 N. Y. 510, 58 N. § 155) POLICE POWEK OF THE STATES. 42& on their own premises merely because they may be ugly or unpleas- ing.^*^ Laws Against Fraud and Oppression. The protection of the whole community, or of classes of individu- als, against fraud, overreaching, and oppression, is a legitimate de- partment of the police power. Historically this is shown by the old market laws, against engrossing and forestalling, and the criminal laws against fraud and conspiracy which have always existed; and the- oretically it is justified by the consideration that one of the func- tions of the state is to protect all citizens in the equal enjoyment of their rights.^^" And it is to this head that we must refer the laws for the protection of infants, married women, lunatics, and seamen, in their business dealings. But no such power is applicable to the con- tracts and employment of laboring men, merely as such, as has been already shown. Usury laws proceed upon the theory that the lender and the borrower of money do not occupy the same relations of equal- ity that parties do in contracting with each other in respect to other matters, and that the borrower's necessities deprive him of freedom in contracting and place him at the mercy of the lender.^''" On the same general principle are to be considered the statutes regulating- dealings in patent rights, those providing for the inspection of goods intended for sale or export,^''^ those for the inspection and regula- tion of weights and measures, ^'^ those regulating the weight of bread,^'^ ordinances requiring hay and coal to be weighed on public E. 673, 53 L. R. A. 548, 79 Am. St. Rep. 659. But compare People v. Murphy, 129 App. Div. 260, 113 N. Y. Supp. 855. See "Municipal Corporations," Dec. Dig. (Key No.) §§ 598, 60Z. 168 Bryan v. Chester, 212 Pa. 259, 61 Atl. 894, 108 Am. St. Rep. 870; City of Chicago v. Gunning System, 214 111. 628, 73 N. E; 1035, 70 L. R. A. 230; People V. Murphy, 195 N. Y. 126, 88 N. E. 17, 21 L. R. A. (N. S.) 735. See "Mu- nibipal Corporations," Dec. Dig. (Key No.) §§ 600-602, 605. 169 Bazemore v. State, 121 Ga. 619, 49 S. E. 701 ; State v. Missouri Guaran- tee Sav. & Bldg. Ass'n, 167 Mo. 489, 67 S. W. 215, 90 Am. St. Rep. 426. See- Constitutional Law," Deo. Dig. (Key No.) §§ 81, 296; Cent. Dig. §§ 1^8, 825-846. i7 0Frorer v. People, 141 111. 171, 31 N. E. 395, 16 L. R. A. 492. See "Consti- tutional Laio," Dec. Dig. (Key No.) § 296; Cent. Dig. § 845. 171 Turner v. Maryland, 107 U. S. 38, 2 Sup. Ct. 44, 27 L. Ed. 370. See "Commerce," Dec. Dig. (Key No.) §§ 50, 52; Cent. Dig. §§ 51, 52. 172 Eitchle T. Boynton, 114 Mass. 431. See "Weights and Measures," Dec. Dig. (Key No.) § 9; Cent. Dig. § 11. 178 City of Mobile v. Yuille, 3 Ala. 137, 36 Am. Dec. 441, But see Buffalo- 426 THE POLICE POWER. (Ch. 14 scales or by public weighers,"* laws regulating the business of money brokers," = fixing the standard of purity for "Sterling silver," and prohibiting the sale of imitations under that name,"» and securing to manufacturers of sparkling or aerated waters the exclusive use of their stamped bottles.^" On this ground also the courts of some of the states have sustained the "bulk sales laws," which provide that the sale of a stock of merchandise in bulk shall be void as against creditors of the vendor unless they have a certain number of days' notice thereof.^^* Same — Monopolies, Trusts, and Restraint of Trade. Trusts, monopolies, corners, engrossing of the market, and all other combinations in restraint of trade or intended to stifle competition or raise prices are unlawful at common law and contrary to public in- terest and public policy, and laws intended to prevent, prohibit, or punish them are within the proper scope of the police power.^'^ .Hav- V. Collins Baking Co., 24 Misc. Rep. 745, 53 N. Y. Supp. 988. See "Constitu- tional Law," Dec. Dig. (Key No.) § 70; Cent. Dig. § ISl. 174 Stokes V. City of New York, 14 Wend. (N. T.) 87; Yates v. City of Mil- waukee, 12 Wis. 673. See "Weights and, Measures," Deo. Dig. (Key No.) % 1; "municipal Corporations," Cent. Dig. § 1360. 17 5 In re Home Discount. Co. (D. C.) 147 Fed. 538. See "Constitutional Law," Dec. Dig. (Key No.) § S08. 176 People V. Webster, 17 Misc. Rep. 410, 40 N. Y. Supp. 1135. See "Con- stitutional Law," Dee. Dig. (Key No.) § 296. 177 People V. Cannon, 139 N. Y. 32, 34 N. B. 759, 36 Am. St. Rep. 668. See "Constitutional Law," Dec. Dig. (Key No.) § 296; Cent. Dig. § 826. 17 8 Young V. Lemieux, 79 Conn. 434, 65 Atl. 436, 20 L. R. A. (N. S.) 160; Walp V. Mooar, 76 Conn. 515, 57 Atl. 277; Jaques & Tinsley Co. v. Carstar- phen Warehouse Co., 131 6a. 1, 62 S. E. 82; Musselman Grocer Co. v. Kidd, Dater & Price Co., 151 Mich. 478, 115 N. W. 409 ; Spurr v. Travis, 145 Mich. 721, 108 N. W. 1090, 116 Am. St. Rep. 330 ; McDaniels v. J. J. Connelly Shoe Co., 30 Wash. 549, 71 Pac. 37, 60 L. R. A. 947, 94 Am. St. Rep. 889. Contra, Off & Co. v. Morehead, 235 111. 40, 85 N. E. 264, 20 L R. A. (N. S.) 167, 126 Am. St. Rep. 184 ; Wright v. Hart, 182 N., Y. 330, 75 N. E. 404, 2 L. R. A. (N. S.) S38 ; Block v. Schwartz, 27 Utah, 387, 76 Pac. 22, 65 L. R. A. 308, 101 Am. St. Rep. 971. See "Constitutional Law," Deo. Dig. (Key No.) §§ S9, 2^0, 251, 276, 278, 296; "Fraudulent Conveyances," Dec. Dig. (Key No.) § //7. 17 9 People V. Aachen & Munich Fire Ins. Co. of Germany, 126 111. App. 636; State V. Smiley, 65 Kan. 240, 69 Pac. 199, 67 L. R. A. 903 ; Texas & P. R. Co. v. Southern Pac. Ry. Co., 41 La. Ann. 970, 6 South. 888, 17 Am. St. Rep. 445 ; Kellogg V. Sowerby, 190 N. Y. 370, S3 N. E. 47 ; National Harrow Co. v. E. Bement & Sons, 21 App. Div. 290, 47 N. Y. Supp. 462 ; Morris Run Coal Co. V. Barclay Coal Co., 68 Pa. 173, 8 Am. Rep. 159 ; Bailey v. Master Plumbers, 103 Tenn. .99, 52 S. W. 853, 46 L. R. A. 561 ; Jones v. Carter, 45 Tex. Civ. App. § 155) POLICE POWER OF THE STATES. 427 ing already considered the act of congress aimed at conspiracies and combinations in restraint of interstate and foreign commerce,^*" we have now to speak of the "anti-trust" laws which have been enacted in many of the states, and under which, in recent years, an active campaign has been conducted against virtual or attempted monopolies. The constitutional validity of these laws has almost invariably been sustained,^ *^ except in so far as they have attempted to make ex- ceptions in favor of trades unions,^ '^ and of agriculturists and pro- ducers of live stock.^^' But the scope of these state laws is limited. In the first place, they cannot legitimately affect any contracts or com- binations which pertain to, or assume the character of, interstate com- merce, as this would invade the exclusive jurisdiction of congress; ^'* and herein of course lies their inherent weakness. In the next place, 450, 101 S. W. 514. See State v. Eastern Coal Co. (R. I.) 70 Atl. 1, where it •was ruled that the cominon-law crime of engrossing the market is still a part of the common law of Rhode Island, though dormant, and should be applied, when it becomes necessary to enforce it, with due regard to the circumstances and conditions existing at the time of enforcement. See "Monopolies," Dec. Dig. (Key No.) §§ 1-20; Cent. Dig. §§ I-I4. 180 Supra, p. 236. 181 Smiley v. Kansas, 196 U. S. 447, 25 Sup. Ot. 289, 49 L. Ed. 546; North- ern Securities Co. v. United States, 193 U. S. 197, 24 Sup. Ct. 436, 48 L. Ed. 679 ; Jack v. Kansas, 199 U. S. 372, 26 Sup. Ot. 73, 50 L. Ed. 234 ; Sanford v. People, 121 111. App. 619 ; In re Opinion of the Justices, 193 Mass. 605, 81 N. E. 142 ; Commonwealth v. Strauss, 191 Mass. 545, 78 N. E. 136, 11 L. R. A. (N. S.) 968 ; State v. Firemen's Fund Ins. Co., 152 Mo. 1, 52 S. W. 595, 45 L. R. A. 363 ; State v. Gage, 72 Ohio St. 210, 73 N. E. 1078 ; State v. Buckeye Pipe Line Co., 61 Ohio St. 520, 56 N. E. 464 ; State v. Virginia-Carolina Chem- ical Co., 71 S. C. 544, 51 S. E. 455 ; State v. Schlitz Brewing Co., 104 Teun. 715, 59 S. W. 1033, 78 Am. St. Rep. 941 ; State v. Witherspoon, 115 Tenn. 138, 90 S. W. 852 ; Waters-Pierce Oil Co. v. State, 19 Tex. Civ. App. 1, 44 S. W. 939 ; State v. Shippers' Compress & Warehouse Co., 95 Tex. 603, 69 S. W. 58 ; National Cotton Oil Co. v. State (Tex. Civ. App.) 72 S. W. 615 ; State v. Mis- souri, K. & T. R. Co! of Texas, 99 Tex. 516, 91 S. W. 214, 5 L. R. A. (N. S.) 783. See '•Monopolies," Dee. Dig. (Key No.) §§ '9-20; Cent. Dig. §§ 8-U; "Con- stitutional Law," Dec. Dig. (Key No.) §§ 70, 74, 89, 106, 165, 206, 208, 2S8, 240, S03, 305, 306. 182 Supra, p. 420. 183 Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679 ; Brown v. Jacobs Pharmacy Co., 115 Ga. 429, 41 S. E. 553, 57 L. R. A. 547, 90 Am. St. Rep. 126 ; State v. Cudahy Packing Co., 33 Mont. 179, 82 Pac. 833, 114 Am. St. Rep. 804 ; State v. Waters-Pierce Oil Co. (Tex. Civ. App.) 67 S. W. 1057. See "Constitutional Law," Dec. Dig. (Key No.) §§ 308, BS8, 240 ; Cent. Dig. §§ 649-677,- 688-699. i8'4 Hadley-Dean Plate Glass Co. v. Highland Glass Co., 143 Fed. 242, 74 C. 4:28 THE POLICE POWER. (Ch. 14 such statutes do not apply to a covenant by the vendor of a business and its good will, that he will not compete in business with his vendee within a restricted region or for a limited time."' Nor do they apply to an agreement by which the manufacturer or producer of a com- modity grants to another the exclusive right to sell the same within a prescribed territory," » nor to a sale, lease, or other contract which is merely incidental or collateral to a monopoly or unlawful combina- tion."^ A monopoly consists in the ownership or control of so large a part of the market supply or output of a given commodity as to stifle com- petition, restrict the freedom of commerce, and give the monopolist control over prices; "* and a "pool" or "trust" is a corribination hav- ing the intention and power, or the tendency, to create a monop- oly, control production, interfere with trade, or fix and regulate prices ;^^° and the courts will not allow a monopoly or trust to es- C. A. 462. See '•Commerce," Dec. Dig. {Key No.) § BO; Cent. Dig. §§ 91-95; "Monopolies," Dec. Dig. (Key No.) § 17. 185 Brett V. Ebel, 29 App. Div. 256, 51 N. T. Supp. 573; Espenson v. Koepke,. 93 Minn. 278, 101 N. W. 168; Wittenberg v. Mollyneaux, 60 Neb. 583, 83 N. W. 842 ; Booth & Co. v. Seibold, 37 Misc. Rep. 101, 74 N. T. Supp. 776 ; Crump v. Ligon, 37 Tex. Civ. App. 172, 84 S. W. 250 ; Buckhout v. Wltwer, 157 Mich. 406, 122 N. W. 184. But compare Comer v. Burton-Lingo Co., 24 Tex. Civ. App. 251, 58 S. W. 969. See "Monopolies," Dec. Dig. (Key No.) § 12; Cent. Dig. 186 Houck v. Wright, 77 Miss. 476, 27 South. 616; Gates v. Hooper, 90 Tex. 563, 39 S. W. 1079; Vandeweghe v. American Brewing Co. (Tex. Civ. App.) 61 S. W. 526 ; Wood Mowing & Reaping Co. v. Greenwood Hardware Co., 75 S. C. 378, 55 S. E. 973, 9 L. R. A. (N. S.) 501. But see State v. Adams Lumber Co., 81 Neb. 392, 116 N. W. 302. See "Monopolies," Dec. Dig. (Key No.) § 17/ Cent. Dig. § 13. 187 Brooklyn Distilling Co. v. Standard Distilling & Distributing Co., 120- App. Div. 237, 105 N. Y. Supp. 264; Chicago Wall .Paper Mills v. General Paper Co., 147 Fed. 491, 78 C. C. A. 607. See "Monopolies," Dec. Dig. (Key No.) § 23. 188 State V. Eastern Coal Co. (R. I.) 70 Atl. 1; Over v. Byram Foundry Co., 37 Ind. App. 452, 77 N. E. 302, 117 Am. St. Rep. 327 ; State v. Standard Oil Co., 218 Mo. 1, 116 S. W. 902 ; State v. Duluth Board of Trade, 107 Minn. 506, 121 . N. W. 395; National Flreproofing Co. v. Mason Builders' Ass'n, 169 Fed. 259, 94 C. C. A. 535. See "Monopolies," Dec Dig. (Key No.) §§ 1, 8; Cent. Dig. § i. 189 Chicago, W. & V. Coal Co. v. People, 114 111. App. 75, affirmed in 214 111. 421, 73 N. E. 770. And see Yazoo & M. V. R. Co. v. Searles, 85 Miss. 520, 37 South. 939, 68 L. B. A. 715; Barataria Canning Co. v. Joulian, 80 Miss. 555, 31 South. 961. See "Monopolies," Dec. Dig. (Key No.) §§ 1, 8; Cent. Dig. § 166) POLICE POWEK OF THE STATES. 429 cape the animadversion of the laws because cloaked under any spe- cious device or trick.^"" But to come within the laws under consid- eration, it is essential that the combination or contract should relate to some article in which there is competition, and hence they do not apply to a commodity the price of which is fixed by law.^"^ But on the other hand it is not necessary that the article or product affected should be one of the necessities of life.^°^ It may be insurance (with reference to the rate of premiums)^"^ or an article protected by pat- ents or copyrights,^"* or even an article of such a character that it is deemed noxious or dangerous and the sale of which is discouraged and restricted by the laws, such as intoxicating liquors. ^°° But news is not property, at least until printed, and the business of gathering and selling news is not within the anti-trust laws.^°° In the next place it is not only a commodity which may be monopolized, or become the subject of a pool or trust, but also a business, trade, or occupa- 180 American Strawboard Co. v. Peoria Strawboard Co., 65 111. App. 502 (case of a device, under the form of a lease, whereby a manufacturing cor- poration was to receive, under the name of rent, a bonus for permitting its plant to remain idle) ; Greer v. Payne, 4 Kan. App. 153, 46 Pac. 190 (where the articles of an association declared that its object was to promulgate and en- force among its members correct and high moral principles in the transac- tion of business, but its real object was to prevent competition and maintain prices). See "Monopolies," Dec. Dig. {Key No.) §§ 12, 11; Cent. Dig. §§ 10, 13. 181 State V. Shippers' Compress & Warehouse Co., 95 Tex. 603, 69 S. W. 58. jSee "Monopolies," Dec. Dig. (Key No.) §§ 8, 12. 192 Cummings v. Union Blue Stone Co., 15 App. Div. 602, 44 N. Y. Supp. 787; People v. Duke, 19 Misc. Rep. 292, 44 N. Y. Supp. 336; Knight & Jillison Co. v. muer (Ind.) 87 N. E. 823. See "Monopolies," Dec. Dig. (Key No.) §§ 10, 12, 17; Cent. Dig. §§ 9, 10, 13. 10 3 Beechley v. Mulville, 102 Iowa, 602, 70 N. W. 107, 63 Am. St. Eep. 479; American Fire Ins. Co. v. State, 75 Miss. 24, 22 South. 99 ; State v. Firemen's Fund Ins. Co., 152 Mo. 1, 52 S. W. 595, 45 L. R. A. 363. But see ^tna Ins. Co. v. Commonwealth, 106 Ky. 8G4, 51 iS. W. 624, 45 L. R. A. 355. See "Mo- nopolies," Dec. Dig. (Key No.) § 18; Cent. Dig. § H. 194 National Harrow Co. v. B. Bement & Sons, 21 App. Div. 290, 47 N. Y. Supp. 462. iSee Straus v. American Publishers' Ass'n, 193 N. Y. 496, 86 N. E. 525. See "Monopolies," Deo. Dig. (Key No.) §§ 12, 17; Cent. Dig. §§ 10, 13. 19 5 Commonwealth v. Bavarian Brewing Co., 112 Ky. 925, 66 S. W. 1016, 23 Ky. Law Rep. 2334 ; Leonard v. Abner-Drury Brewing Co., 25 App. D. C. 161 ; Norton v. W. H. Thomas & Sons, 99 Tex. 578, 91 S. W. 780. See "Mo- nopolies," Dec. Dig. (Key No.) § 17; Cent. Dig. §■ IS. 196 .State v. Associated Press, 159 Mb. 410, 60 S. W. 91, 51 L. R. A. 151, 81 Am. St. Rep. 368. But see Inter-Ocean Pub. Co. v. Associated Press, 184 111. 438, 56 N. E. 822, 48 L. R. A. 568, 75 Am. St. Rep. 184. See "Monopolies," Dec. Dig. (Key No.) § 12. 430 THE POLICE POWER. (Ch. 14 tion.i'^ Hence a trade union, in so far as it attempts to monopolize the labor market for its own members, may be a "trust" or unlawful association;"* and the same is true of an association of instru- mental musicians the object of which is to monopolize the business and exclude non-union musicians from employment.^"" But if the laws are so framed as to prohibit monopolies of "merchandise" or "commodities," they do not include personal service nor apply to combinations to fix the price of labor, either skilled or unskilled, and hence db not make it unlawful for the physicians of a city to com- bine to fix charges for their professional services.""" And running a theater is not "commerce" within the meaning of these laws.^"^ But in general, to bring a combination within the operation of the laws it is not necessary that it should have effected an entire or complete monopoly,"''^ or that it should have been formed with a malevolent purpose or with a cynical disregard of the interests of the general public, the motive being immaterial;^"' nor is it ma- 197 See Harriman v. Menzies, 115 Cal. 16, 46 Pac. 730, 35 L. R. A. 318, 56 Am. St. Rep. 81 (as to an attempt to monopolize the business of stevedoring) ; Roanoke Cemetery Co. v. Goodwin, 101 Va. 605, 44 S. B. 769 (as to the rules of a cemetery association which gave to its superintendent a practical mo- nopoly of the opening of graves In the cemetery) ; Downing v. Lewis, 56 Neb. 386, 76 N. W. 900 (holding that a laundry is not a "manufacturing establish- ment," within the meaning of the anti-trust law) ; In re Jackson, 57 Misc. Rep. 1, 107 N. Y. Supp. 799 (holding that the New York anti-trust law does not apply to telegraph companies). See "Monopolies," Dec. Dig. (Key No.) §§ 12, 24; Cent. Dig. § 10. 198 Brennan v. United Hatters of North America, Local No. 17, 73 N. J. Law, 729, 65 Atl. 165, 9 L. R. A. (N. S.) 254, 118 Am. St. Rep. 727 ; Loewe v. Lawlor, 208 U. S. 274, 28 'Sup. Ct. 301, 52 L. Ed. 488. See "Monopolies," Dec. Dig. (Key No.) §5 12, U, 21 j Cent. Dip. §§ 10, 11, 15. 19 9 O'Brien v. Musical Mut. Protective & Benevolent Union Local No. 14, National League of Musicians, 64 N. J. Eq. 525, 54 Atl. 150; Froelich v. Musicians' Mut. Ben. Ass'n, 93 Mo. App. 383. See "Monopolies," Dee. Dig. {Key No.) § 21. aooRoWf V. Kasemeler (Iowa) 118 N. W. 276; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 114 S. W. 997, 128 Am. St. Rep. 492. See "Monopolies," Dec. Dig. {Key No.) § 12; Cent. Dig. § 10. 2 01 People V. Klaw, 55 Misc. Rep. 72, 106 N. Y. Supp. 341. See "Monop- olies," Dec. Dig. {Key No.) § 12; Cent. Dig. § 10. 202 Chicago, W. & V. Coal Co. v. People, 214 111. 421, 73 N. E. 770; Sanford V. People, 121 111. App. 619; State v. Armour Packing Co., 173 Mo. 336, 73 S. W. 645, 61 L. R. A. 464, 96 Am. St. Rep. 515 ; Cleland v. Anderson, 66 Neb. 252, 92 N. W. 306, 5 L. R. A. (N. S.) 136. See "Monopolies," Dec. Dig. {Key No.) §§ 8, 17; Cent. Dig. § 13. 203 state V. Eastern Coal Co. (R. I.) 70 Atl. 1; San Antonio Gas Co. v. § 155) POLICE POWER OF THE STATES. 431 terial that the price of the article affected may not have been advanced, or that it may even have been reduced, where an intention to restrain trade and create a monopoly is clearly established.^"* As to the various methods of organizing a trust or monopoly, it may be remarked that any combination among producers or dealers in a given article to fix a. scale of prices (either by the association as a whole or through a central committee) and to maintain the same by forbidding the members of the association to sell except through the trust, or by coercing the retail trade by refusing to sell to outsiders or to any who cut- prices, is unlawful and a violation of the anti-trust statutes. ^"^ As to combinations among corporations, it is not unlaw- ful for one company to buy the whole or any part of the stock of a rival or competing company, or to buy its plant and business, when the transaction is honestly intended to do away with a competition ruinous to both, and not to create a monopoly.^"® So also there is nothing illegal in the consolidation of two rival corporations, when the object is to put an end to destructive litigation and the result does not materially affect the general market for their particular corn- State, 22 Tex. Civ. App. 118, 54 S. W. 289. See "Monopolies," Dec. Dig. (Key Ko.) §§ 1, 8, 17; Cent. Dig. §§ 1, 19. 204 United States v. Swift (C. C.) 122 Fed. 529; Chicago, W. & V. Coal Co. V. People, 214 111. 421, 73 N. E. 770; San Antouio Gas Co. v. State, 22 Tex. Civ. App. 118, 54 S. W. 280. See "Monopolies," Deo. Dig. (Key No.) § 17; Cent. Dig. § 19. 2 05 National Harrow Co. v. Heneli, 83 Fed. 36, 27 C. C. A. 349, 39 L. R. A. 299 ; Brown v. Jacobs' Pharmacy Co., 113 6a. 429, 41 S. E. 553, 57 L. R. A. 547, 90 Am. St. Rep. 126 ; State v. Wilson, 73 Kan. 334, 84 Pac. 737, 117 Am. St. Rep. 479; Klingel's Pharmacy v. Sharp & Dohme, 104 Md. 218, 64 Atl. 1029, 7 L. R. A. (N. S.) 976, 118 Am. St. Rep. 399 ; Commopwealth v. Strauss, 191 Mass. 545, 78 N. E. 136, 11 L. R. A. (N. S.) 968 ; Hunt v. Riverside Co-op- erative Club, 140 Mich. 538, 104 N. W. 40, 112 Am. St. Rep. 420; Albers Com- mission Co. V. Spencer, 205 Mo. 105, 103 S. W. 523, 11 L. R. A. (N. S.) 1003 ; Straus V. American Publishers' Ass'n, 85 App. Div. 446, 83 N. Y. Supp. 271 ; Park & Sons Co. v. National Wholesale Druggists' Ass'n (Sup.) 50 N. Y. Supp. 1064; Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666. See "Monopolies," Dec. Dig. {Key No.) §§ 12, 17; Cent. Dig. §§ 10, 13. 206 Trust Co. of Georgia v. State, 109 Ga. 736, 35 S. E. 323, 48 L. R. A. 520; State v. Continental Tobacco Co., 177 Mo. 1, 75 S. W. 737 ; Trenton Potteries Co. V. Oliphaut, 58 N. J. Law, 507, 43 Atl. 723, 46 L. R. A. 255, 78 Am. St. Rep. 612 ; Rafferty v. Buffalo City Gas Co., 37 App. Div. 618, 56 N. Y. Supp. 288; Fraacis v. Taylor, 31 Misc. Rep. 187, 63 N. Y. Supp. 28. See "Monop- olies," Dec. Dig. {Key No.) § 20. 432 THE POLICE POWER. (Ch. 14 modity.^"'' But a merger of corporations, either by actual consolida- tion or by one acquiring a controlling interest in the other, is illegal, when they operate under public franchises or when the result is an entire monopoly of their particular business in a given territory, as in the case of a consolidation of parallel railroads or of all the gas or water companies of a city or all the companies dealing in ice or coal in the municipality."* And on a broader scale, these laws clearly apply to the usual device for the formation of a corporate trust, where all or most of the manufacturers of an important commodity enter into an arrangement for the transfer of their several plants to a new corporation which is to take over and carry on their business, and which usually issues a part of its stock as part of the consideration for the purchase of the plants, and takes into its directorate or management the principal oflficers of the constituent companies, and puts the vendors under an agreement not to compete. '"'° For some time, corporations seeking to form a monopoly or trust without ren- dering themselves amenable to these laws resorted to the device of a "holding company," that is, a corporation which acquires and holds all the stock of the several constituent companies, issuing its own stock in exchange. Theoretically such a company does no business, and theoretically it does not destroy the constituent companies but maintains and continues them in active operation, and on the face of the transaction there is nothing to prevent the most active compe- tition among them. But actually of course the holding company is the real manager of the entire consolidated business and regulates the output and price; and when this results in an entire or partial monopoly, the courts are now disposed to hold it unlawful and a vio- lation of the statutes.^" 207 Meredith v. New Jersey Zinc & Iron Co., 55 N. J. Eq. 211, 37 Atl. 539. See "Monopolies," Dec. Dig. (Key No.) §§ 13, 20. 208 Dunbar v. American Telephone & Telegraph Co., 224 111. 9, 79 N. B. 423, 115 Am. St. Rep. 182 ; People v. Nussbaum, 32 Misc. Rep. 1, 66 N. Y. Sitpp. 129; San Antonio Gas Co. v. State, 22 Tex. Civ. App. 118, 54 S. W. 289; Scott V. Farmers' & Merchants' Nat. Bank, 97 Tex. 31, 75 S. W. 7, 104 Am. St. Rep. 835 ; Gulf, O. & S. F. Ry. Co. v. State, 72 Tex. 404, 10 S. W. 81, 1 L. R. A. 849, 13 Am. St. Rep. 815. But see Manchester & L. R. R. v. Concord R. R., 66 N. H. 100, 20 Atl. 383, 9 L. R. A. 689, 49 Am. St. Rep. 582. See "Mo- nopolies," Deo. Dig. (Key No.) §§ 16, 20. 209 Trenton Potteries Co. v. Oliphant, 56 N. J. Eq. 680, 39 Atl. 923; Hard- ing V. American Glucose Co., 182 111. 551, 55 N. E. 577, 64 L. R. A. 738, 74 Am. St. Rep. 189. See "Monopolies," Dec. Dig. (Key No.) §§ 16, 17, 20; Cent. Dig. §§ 12, IS. 210 Burrows v. Interborough Metropolitan Co. (0. C.) 156 Fed. 389; South- § 155) POLICE POWER OF THE STATES. 433 Regulation of Roads and Streets. A municipal corporation has authority, under the police power, to regulate the construction, repair, and use of the public streets and roads.^" And hence ordlinances may be passed to prescribe the rate of speed of automobiles, bicycles, and other vehicles, and with refer- ence to lights, signals, display of numbers, etc., so ,far as may be necessary to secure the safety and comfort of passengers on the streets and highways. °^^ So also a city or town may make provision for sprinkling and sweeping the streets at the cost of property owners on such streets .-^"^^ and prohibit the running at large of cattle."* The right of a city to take the land of a riparian proprietor to enlarge a roadway which has been encroached on by the waters of the river is an exercise of the police power vested in the city by the state, and not of the power of eminent domain; and hence an ordinance direct- em Electric rgecurities Co. v. State, 91 Miss. 195, 44 South. 785, 124 Am. St. Rep. 638. See "Monopolies," Dec. Dig. (Key No.) §§ 16, 20; Cent. Dig. § 12. 211 The power of a municipal corporation to order sidewalks of a particu- lar kind to be laid, and to assess against the abutting property owners an amount necessary to pay for the same, and to pay for keeping the same in repair and proper condition for the use of the public, is generally upheld up- on the ground that It is a proper exercise of the police power. The same prin- ciple applies to grading, curbing, or paving streets and laying sewers, at the cost, or partly at the cost, of abutting lot owners, the point, in all these cases, being that the charge upon such owners is not a tax but a local assessment for special benefits, and that they cannot complain that they are deprived of their property without due process of law or without compensation. But it is very doubtful whether these enactments are referable to the police pow- er, properly and strictly so called. If such statutes are not unconstitutional as an exercise of the power of taxation, in a modified form, it Is enough, and the police power need not be invoked for their justification. 212 Christy v. Elliott, 216 111. 31, 74 N. E. 1035, 1 L. R. A. (N. S.) 215, 108 Am. St. Rep. 196 ; City of Des Moines v. Keller, 116 Iowa, 648, 88 N. W. 827, 57 L. R. A. (N. S.) 243, 93 Am. St. Rep. 268; People v. Schneider, 139 Mich. 673, 103 N. W. 172. 69 L. R. A. 345 ; State v. Aldrich, 70 N. H. 391, 47 Atl. 602, 85 Am. St. Rep. 631 ; State v. Smith (R. 1.) 69 Atl. 1061. See "Municipal Corporations;' Dec. Dig. (Key No.) § 703; Cent. Dig. §§ 1509-1513. '213 Reinken v. Fuehring, 130 Ind. 382, 30 N. E. 414, 15 L. R. A. 624, 30 Am. St. Rep. 247. See "Municipal Corporations," Dec. Dig. (Key No.) §§ 673, 674; Cent. Dig. §§ H54, 1455. 214 Ross V. Desha Levee Board, 83 Ark. 176, 103 S. W. 380, 21 L. E. A. (N. S.) 699, 119 Am. St. Rep. 131; Paducah v. Ragsdale, 122 Ky. 425, 92 S. W. 13, 28 Ky. Law Rep. 1057. See "Mtmicipal Corporations," Deo. Dig. (Key No.) i 60i; Cent. Dig. §§ 1SS5-1337. Bl.Oonst.L.(3d.Ed.)— 28 434 THE POLICE POWER. (Ch. 14 ing the appropriation of land for such a purpose, without compensation to the riparian proprietor, is not unconstitutional.''" Game Laws. The preservation of game and fish has always been treated as within the proper domain of the police power and laws limiting the season within which birds or wild animals may be killed or exposed for sale, and prescribing the time and manner in which fish may be caught, have been repeatedly upheld by the courts.^s And the prohibition may be extended so as to include fish which have been artificially propagated or maintained."" 217 LIMITATIONS OF THE POLICE FOWEB. 156. It is necessary to the validity of police regulations that they should not— (a) Violate any provision of the federal or state constitution. (b) Interfere with the exclusive jurisdiction of congress, (c) Unlaivfnlly discriminate against individuals or classes. (d) Be unreasonable. (e) Invade private rights of liberty or property unnecessarily. (f) They must actually relate to some one or more of the objects for the preservation of ivhich this povrer may be exercised, and be proper and adapted to that purpose. Limitations under Federal and State Constitutions. In the nice adjustment of rights and powers between the states and the Union, questions frequently arise which require a determin- ation of the relative scope of the police power of the state and the au- thority vested in congress. In such cases, the integrity of each must be preserved, without enroachment upon the other. The jurisdiction secured to the federal government by the constitution sets a limit to the poHce power of the states. "The subjects upon which the state 215 Ruch V. City of New Orleans, 43 La. Ann. 275, 9 South. 473. See "Emi- nent Domain," Dec. Dig. (Key S'o.) § 2 ; Cent. Dig. § 5. 216 Lawton v. Steele, 152 U. S. 133. 14 Sup. Ct. 499, 38 L. Ed. 385 ; Ex parte Kenneke, 136 Cal. 527, 69 Pac. 261, 89 Am. St. Rep. 177 ; Smith v. State, 155 Ind. 611, 58 N. B. 1044, 51 L. R. A. 404 ; Ex parte Fritz, 86 Miss. 210, 38 South. 722, 109 Am. St. Rep. 700; State v. Nergaard, 124 Wis. 414, 102 N. W. 899. But see State v. Mallory, 73 Avk. 236, 83 S. W. 955, 67 L. R. A. 773. See "Fish," Dec. Dig. (Key 'So) §§ 8, 9, 12; Cent. Dig. §§ 16-18; "Game," Dec. Dig. (Key 2fo.) §§ 31/2. i; Gemi. Dig. §§ 2, 3. 217 Commonwealth v. Gilbert, 160 Mass. 157, 35 N. E. 454, 22 L. R. A. 439. See "Fish," Dec. Dig. (Key So.) § H; Cent. Dig. § 25. § 156) LIMITATIONS OF THE POLICE POWEK. 435 may act are almost infinite ; yet in its regulations in respect to all of them there is this necessary limitation, that the state does not thereby encroach upon the free exercise of the power vested in congress by the constitution." ^^* Yet a state has the same unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, where that jurisdiction is not surrendered or restrained by the federal constitution, and "all those powers which relate to merely mu- nicipal legislation, or what may perhaps more properly be called in- ternal police, are not thus surrendered or restrained, and consequently in relation to these, the authority of a state is complete, unqualified, and exclusive." ^^^ It is often and broadly stated that the police power must be exer- cised in subordination to all the limitations and prohibitions contained in both the federal and state constitutions, and that a police regula- tion which violates any provision of either is void.^^" But this dec- laration throws very little light on the constitutional limitations of the police power. For the same thing is true of every act of a state 218 Western Union Tel. Co. v. Pendleton, 122 U. S. 347, 7 Sup. Ct. 1128, 30 L. Ed. 1187 ; Minnesota v. Barber, 136 U. S. 313, 10 Sup. Ct. 862, 34 L. Ed. 455 ; Brimmer v. Rebman, 138 U. S. 78, 11 Sup. Ct. 213, 34 L. Ed. 862. Though the police power of a state must yield to an act of congress, it yields only when and to the extent that its enforcement would interfere with the act of congress, or with the free exercise of rights conferred or the discharge of du- ties enjoined by it. State v. First Nat. Bank, 2 S. D. 568, 51 N. W. 587. A. license granted by the United States, under the internal revenue laws, to carry on any species of business (as, that of a liquor dealer) in a particular state named, although it has been granted in consideration of a fee paid, does not give the licensee power to carry on the business in violation of the state laws forbidding such business to be conducted within its limits ; nor does it relieve the holder from the necessity of taking out any license required by the laws of the state, if that is the system therein prevailing. License Tax Cases, 5 Wall. 462, 18 L. Ed. 497; McGuire v. Massachusetts, 3 Wall. 387, 18 L. Ed. 226. See "Constitutional Law," Dec. Dig. (Key Iffo.) §§ 81, 207; Gent. Dig. §§ 148, 629, 630. 219 Mayor, etc., of City of New York v. Milri, 11 Pet. 102, 139, 9 L. Ed. 648; Solon V. 'State, 54 Tex. Cr. App. 261, 114 S. W. 349. See "Constitutional Law," Dec. Dig. (Key No.) § 81; Cent. Dig. § U8. 220 Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 19 Sup. Ct. 565. 43 L. Ed. 858 ; In re Wilshire (C. C.) 103 Fed. 620 ; City of Belleville v. St. Clair County Turnpike Co., 234 111. 429, 84 N. E. 1049, 17 L. R. A. (N. S.) 1071; People V. Murphy, 129 App. Div. 260, 113 N. Y. Supp. 855 ; State v. Chittenden, 127 Wis. 468, 107 N. W. 500; State v. Froehlich, 115 Wis. 32, 91 N. W. 115, 58 L. R. A. 757, 95 Am. St. Rep. 894. See "Constitutional Law," Deo. Dig. {Key No.) § 81; Cent. Dig. § I48. 4:36 THE POLICE POWER. (Ch. 14 legislature, and the tendency of such statements is merely to make the police power co-extensive with legislative power in general. Fur- ther, how far the constitutional guaranties may avail for the protec- tion of individual liberty and property rights, in the face of legisla- tures determined to bring about the reign of righteousness by force of statute, and of courts too often supine to their wishes,"" may be seen from the following considerations: Both national and state consti- tutions rigorously prohibit the enactment of laws "impairing the obligation of contracts." But it is said that the police power is in- alienable and that no legislature can hamper the power of its succes- sors to make such laws as they deem proper in matters of police ; and hence if the alleged contract involves a relinquishment or surrender of that power to individuals or corporations, it is one which the legis- lature had no power to make, and therefore, being void, may be abro- gated at any time.""" Again, private property may not be taken for public use without just compensation. But as we have shown on a preceding page, this is very frequently done, under the pretence of police regulation, and the injured individual is supposed to be "com- pensated" by his participation in the general or common benefit.""^ Again, no state may make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; but on this stringent constitutional prohibition the courts have engrafted an 2 21 Lest this language should seem extravagant, the author begs to call at- tention to the language of Mr. Justice Brewer in his dissenting opinion in the case of Chicago, B. & Q. R. Co. v. Illinois Drainage Com'rs, 200 U. S. 599, 26 S. Ct. 341, 50 L. Ed. 596, where he says : "It is said that this is done un- der the police power of the state, and that that can be exercised without any provision for compensation. It seems to me that the police power has become the refuge of every grievous wrong upon private property. Whenever any un- just burden Is cast upon the owner of private property -which cannot be sup- ported under the power of eminent domain or that of taxation, it is referred to the police power. But no exercise of the police power can disregard the constitutional guaranties in respect to the taking of private property, due pro- cess, and equal protection, nor should it override the demands of natural justice." See "Constitutional Law," Dec. Dig. (Key No.) § 81; Gent. Dig. § U8. 22 2 Boston Beer Co. v. Massachusetts, 97 TJ. S. 25, 24 L. Ed. 989; Stone v. Mississippi, 101 U. S. 814, 25 L. Ed. 1079 ; Boyd v. Alabama, 94 U. S. 645, 24 L. Ed. 302 ; Butchers' Union Slaughterhouse & L. S. L. Co. v. Crescent City Live Stock Landing & S. H. Co., Ill U. S. 746, 4 Sup. Ct. 652, 28 L. Ed. 585 ; Kresser v. Lyman (C. O.) 74 Fed. 765. See "Constitutional Law," Dec. Dig. (Key No.) J§ 81, 111; Cent. Dig. §§ US, Z86. 22 8 Supra, p. 388. § 156) LIMITATIONS OF THE POLICE POWER. 437 exception as to laws calculated to promote the health, comfort, and welfare of society.*''* The fourteenth amendment contains imperative and far-reaching limitations on the legislative power of the states. But it is held that the exercise by a state of its police power is not controlled or in any way affected by these provisions.**" In particu- lar, the provision as to due process of law has no application to the police power; or, in other words, though a statute may deprive the citizen of his liberty or property, it is held that this is not done "with- out due process of law" if only the statute has some substantial rela- tion to the public welfare.**' So also as to the requirement of the "equal protection of the laws." This, it is said, is not denied to per- sons whose business or property is interfered with by a police regula- tion, provided only that there is no grossly unfair discrimination against them.**^ Unreasonable Laws and Unjust Discriminations. Nevertheless, in order to put a curb on the unlimited exercise of the police power and secure to individuals the benefit of the various constitutional guaranties, the courts have worked out the rule that the legislature must not, under the guise of police regulations, arbi- trarily invade private property or personal rights, the test being found in the answer to the question whether the regulations made have some real and substantial relation to the public safety, health or welfare, and whether that is the end sought.**' If not, the alleged police 22 4 Halter v. State, 74 Neb. 757, 105 N. W. 298, 7 L. R. A. (N. S.) 1079, 121 Am. St. Rep. 754 ; affirmed in 205 U. S. 34, 27 Sup. Ct. 419, 51 L. Ed. 696. See "Constitutional Law," Dec. Dig. {Key No.) §§ 81, 206; Gent. Dig. §§ U8, 625^ 648. 22 5 Shreveport v. Schulsinger, 113 La. 9, 36 South. 870; Knight & Jillison Co. V. Miller (Ind.) 87 N. E. 823. See "Constitutional Law," Dec. Dig. (Key No.) § 81; Cent. Dig. § 148. 22 6 Powell V. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 32 L. Ed. 2.53; Munn V. Illinois, 94 U. S. 113, 24 L. Ed. 77 ; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205 ; Meffert v. Packer, 195 U. S. 625, 25 Sup. Ct. 790, 49 L. Ed. 350 ; Grainger v. Douglas Patls Jockey Club, 148 Fed. 513, 78 C. C. A. 199 ; In re Newell, 2 Cal. App. 767, 84 Pac. 226. See "Constitutional Law," Dec. Dig. (Key No.) §§ 81, 209, 253; Cent. Dig. §§ U8, 678, 132-135. 2 2T Otis V. Parker, 187 U. S. 606, 23 Sup. Ct. 168, 47 L. Ed. 323; Booth v. People, 186 111. 43, 57 N. E. 798, 50 L. R. A. 762, 78 Am. St. Rep. 229 (affirmed 184 U. S. 425, 22 Sup. Ct. 425, 46 L. Ed. 623) ; State v. Livingston Concrete Bldg. & Mfg. Co., 34 Mont. 570, 87 Pac. 980. See "Constitutional Law," Deo. Dig. (Key No.) §§ 209, 239; Cent. Dig. §§ 678, 694. 22 8 In re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; California Reduction Co, V. Sanitary Reduction Works, 126 Fed. 29, 61 0. C. A. 91 (affirmed 199 U. S. 4:38 THE POLICE POWER. (Ch. 14 regulation is unreasonable and may be held void."" So also, police laws must not make unjust or unnecessary discriminations between individuals or classes, or, as more commonly expressed, there must be no "arbitrary" discrimination; and a classification of individuals, of trades, or of kinds of property, is held to be arbitrary, if there is no substantial ground for a distinction between them, or if the pretended ground of distinction has no substantial relation to the public welfare, although the statute, as a whole and aside from any such discrimina- tions, might be a valid police law.^^" Again, police regulations are made for the "public" safety, health, or welfare; and to justify an exercise of this power, it must appear that the interests of the public generally, as distinguished from those of a few individuals or of a particular class, require such interference.^^^ But police regulations 306, 26 Sup. Ct. 100, 50 L. Ed. 204) ; Her v. Ross, 64 Neb. 710, 90 N. W. 869, 57 L. R. A. 895, 97 Am. St. Rep. 676 ; People v. Murphy, 129 App. Div. 260, 113 N. Y. Supp. 835. 8oe "Constitutional Law," Dec. Dig. (Key No.) § 81; Cent. Dig. §. US. 22 B Toledo, W. & W. Ry. Co. v. City of Jacksonville, 67 111. 37, 16 Am. Rep. 611 ; Seaboard Air Line R. Co. v. Railroad Commission of Alabama (C. C.) 155 Fed. 792. See "Constitutional Law," Deo. Dig. (Key No.) § 81; Cent. Dig. 230 yiek Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220; Petit V. Minnesota, 177 U. S. 164, 20 Sup. Ct. 666, 44 L. Ed. 716 ; Ex parte Drayton (D. C.) 153 Fed. 986 ; Ex parte Hollman, 79 S. C. 9, 60 S. E. 19, 21 L. R. A. (N. S.) 242 ; Walsh v. City of Denver, 11 Colo. App. 523, 53 Pac. 458 ; In re Lee Sing (C. C.) 43 Fed. 359 ; State v. Bering, 84 Wis. 585, 54 N. W. 1104, 19 L. R. A. 858, 36 Am. St. Rep. 948; Mayor, etc., of City of Baltimore v. Ra- decke, 49 Md. 217, 33 Am. Rep. 239 ; In re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636 ; Harmon v. State, 66 Ohio St. 249, 64 N. E. 117, .58 L. R. A. 618 ; Lappin V. District of Columbia, 22 App. D. C. 68. The police power of the state is to be used impartially and without unjust discrimination, and while, as between liquor-selling and other callings less harmful to the public, the former may be discriminated against, there is no warrant for unjust discrimination as between individuals engaged in the same business. State v. New Orleans, 113 La. 371, 36 South. 999, 67 L. R. A. 70. But see Brady v. Mattern, 125 Iowa, 158, 100 N. W. 358, 106 Am. St. Rep. 291, where it is said that the legis- lature may discriminate between classes in regulating a business where the discrimination is based on a reasonable distinction involving the public wel- fare. See "Constitutional Law," Dec. Dig. {Key No.) §§" 81, 204-250; Cent. Dig. §§ US, 591-713. 2 31 state V. Redmon, 134 Wis. 89, 114 N. W. 137, 14 L. R. A. (N. S.) 229, 126 Am. St. Rep. 1003 ; Bonnett v. Vallier, 133 Wis. 193, 116 N. W. 885, 17 L. R. A. (N. S.) 486, 128 Am. St. Rep. 1061 ; Com. v. Campbell (Ky.) 117 S. W. 383. See "Constitutional Law," Dec. Dig. (Key No.) § 81; Cent. Dig. § US, § 156) LIMITATIONS OF THE POLICE POWER. 439 will not be declared void because the courts deem them contrary to natural justice and equity.^^^ Province of the Courts. It is for the legislature to determine what regulations are proper or necessary to be enacted in the exercise of the police power, and the courts have nothing to do with the wisdom, policy, or expediency of the laws passed under this power.'^^^ But it is the province and duty of the courts to determine what are the proper subjects for the exer- cise of this power, and what constitutional limitations or restrictions must be applied to its exercise, and whether the statute in question is a reasonable exercise of the power ; and as to the latter point, the courts may and should inquire whether it has a real and substantial relation to the public safety, health, or welfare, and operates or tends in some real degree to promote or secure these objects; and as to this the legislative decision is not conclusive, but is subject to judicial review, and the courts are not precluded from such an inquiry by the fact that the legislature has expressed its judgment or declared its intention in the statute.2^* 232 state V. Richcreek, 167 Ind. 217, 77 N. E. 1085, 5 L. R. A. (N. S.) 874, 119 Am. St. Rep. 491. See "Constitutional Law," Dec. Dig. (Key No.) § 81; Cent. Dig. % 148. 233 City of New York v. M. Wineburgh Advertising Co., 122 App. Div. 748, 107 N. Y. Supp. 47S ; State v. Drayton, 82 Neb. 254, 117 N. W. 7G8 ; State v. Williams, 146 N. C. 618, 61 S. E. 61, 17 L. R. A. (N. S.) 299 ; Bonnett v. Yal- lier, 136 Wis. 193, 116 N. W. 885, 17 L. R. A. (N. S.) 486, 128 Am. St. Rep. 1061; California Reduction Co. v. Sanitary Reduction Works, 126 Fed. 29, <)1 C. C. A. 91 ; Bigelow v. Old Dominion Copper Mining & Smelting Co. (N. J. Cb.) 71 Atl. 153. The case last cited holds that the public policy of a state is the creature not of the courts but of the legislature, and that the courts have nothing to do with forming it and can only recognize it like any other matter of public law. See "Constitutional Law," Dec. Dig. (Key No.) §§ 70, 81; •Cent. Dig. §§ 129-132, 131, US. 234 Mugler V. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; In re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; Hume v. Laurel Hill Cemetery (C. C.) 142 Fed. 552; City of Belleville v. St. Clair County Turnpike Co., 234 111. 428, 84 N. E. 1049, 17 L. R. A. (N. S.) 1071 ; People v. Steele, 231 111. 340, 83 N. E. 236, 14 L. R. A. (N. S.) 361, 121 Am. St. Rep. 321 ; Laurel Hill Cemetery T. City and County of San Francisco, 152 Cal. 464, 93 Pac. 70 ; Odd Fellows' Cemetery Ass'n v. City and County of San Francisco, 140 Cal. 226, 73 Pac. 987 ; Halter v. State, 74 Neb. 757, 105 N. W. 298, 7 L. R. A. (N. S.) 1079, 121 Am. St. Rep. 754 ; Litchfield v. Pond, 186 N. Y. 66, 78 N. E. 719 ; People v. Warden of City Prison, 157 N. Y. 116, 51 N. E. 1006, 43 L. R. A. 264, 68 Am. St. Rep. 763 ; City of New York v. M. Wineburgh Advertising Co., 122 App. 440 THE POLICE POWEK. (Ch. 14 Div. 748, 107 N. X. Supp. 478 ; State v. Roberts, 74 N. H. 476, 69 AO. 722, 16 L. R. A. (N. S.) 1115 ; Bonnett v. Vallier, 136 Wis. 193, 116 N. "W. 885, 17 D. R. A. (N. S.) 486, 128 Am. St. Rep. 1061 ; State v. Redmon, 134 Wis. 89, 114 N. W. 137, 14 L. R. A. (N. S.) 229, 126 Am. St. Rep. 1003 ; State v. Williams, 146 N. C. 618, 61 S. E. 61, 17 L. R. A. (N. S.) 299; People v. Murphy, 129 App. Dlv. 260, 113 N. Y. Supp. 855. See "ConsUtutioMil Law," Dec. Dig. (Key So.) H 70, 81; Cent. Dig. §§ X29-132, ISl, US. 167-158) THE POWER OF TAXATION. 441 CHAPTER XV. THE POWER OF TAXATION. 157-158. General Considerations. 159. Independence of Federal and State Governments. 160. Limitations Imposed by Federal Constitution. 161-162. Limitations Imposed by State Constitutions. 163-164. Purposes of Taxation. 165-166. Equality and Uniformity in Taxation. 167-169. Double Taxation. 170. ' Taxation and Representation. 171. Taxation Under the Police Power, GENERAL CONSIDERATIONS. 157. Tbe poireT of taxation is an essential and inherent attribute of' sovereignty and belongs as a matter of right to every independ- ent state or government, and it is as extensive as the range of subjects over which the poiver of that government extends.^ 158. Taxes are ratable burdens or charges imposed by the legislative ■poxrex npon persons or property to raise money for pnblic pur- poses. Nature of Taxes. Taxes are a ratable portion of the property of the individual citi- zens, or of the produce of their labor and property, taken by the state or nation, in the exercise of its sovereign rights, for the support of government, for the administration of the laws, and as a means of continuing in operation the various legitimate functions of the state, and levied regularly, uniformly, and equally upon such persons or property in pursuance of lawful enactments.^ It is a mistake to say 1 Inbabltants of Camden v. Camden Village Corp., 77 Me. 530, 1 Atl. 689 ; New Jersey R. & Transp. Co. v. Collectors of East, Fifth, and Ninth Wards^ Newark, 26 N. J. Law, 519 ; Porter v. Rockford, R. I. & St. L. R. Co., 76 111." 561, 573 ; People v. Pitt, 169 N. T. 521, 62 N. E. 662, 58 L. R. A. 372 ; State V. Thorne, 112 Wis. 81, 87 N. W. 797, 55 L. R. A. 956 ; Clark v. Rochester, la How. Prac. (N. Y.) 204 ; Bank of Pennsylvania v. Commonwealth, 19 Pa. 144 ; Debolt V. Ohio Life Ins. & Trust Co., 1 Ohio St. 563 ; Northern Pac. R. Co. v. Carland, 5 Mont. 146, 3 Pac. 134. See "Taxation," 'Dec. Dig. (Key No.) §§ 1- 36; Cent. Dig. §§ 1-63. 2 Graham v. St. Joseph Tp., 67 Mich. 652, 35 N. W. 808; City of New Lon- 442 THE POWER OP TAXATION. (Ch. 15 that a tax is a payment made to the government in consideration of the advantages which it offers, or as an equivalent for the security it affords, or a pledge to secure the enjoyment of the remainder of one's property. For the advantages of organized society are not a matter of bargain and sale, and protection in the enjoyment of his rights is a duty owed by the state to every citizen, whether he can or does pay taxes or not, and this duty would be just as much obligatory on the state if it needed no taxes. ^ But it is not consonant with the constitutional idea of a tax that it should be exacted from individuals in an arbitrary or discriminat- ing manner. The idea of taxation implies equality of burdens, and a regular distribution of the expenses of government among those persons, or those classes of property, which are rightly subject to the burden of them. The requirement of apportionment is absolutely es- sential in any exercise of the power to tax. There can be no such thing as valid taxation when the burden is laid without rule, either in re- spect to the subjects of it or to the extent to which each must contrib- ute.* Again, the term "tax" is properly applied only to those exac- tions which are levied for distinctly governmental purposes. For this reason, water rates, though payable to a municipal corporation as the owner of the water system, are not taxes. ^ And on similar principles it is held that taxes are not "debts" in the ordinary sense of that word, as they do not involve any element of contractual obligation, and the claim of the government for its taxes is paramount to all other de- mands." don V. Miller, GO Conn. 112, 22 Atl. 499 ; Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23 ; Hanson v. Vernon, 27 Iowa, 28, 1 Am. Rep. 273. See "Taxation," Dec. Dig. (Key No.) § 1; Cent. Dig. § 1. 3 Black, Tax Titles (2d Ed.) § 2. i Black, Tax Titles (2d Ed.) § 84 ; Henry v. Town of Chester, 15 Vt. 460 ; Tide-Water Co. v. Coster, 18 N. J. Eq. 518, 90 Am. Dec. 634; Stuart v. Palmer, 74 N. T. 183, 30 Am. Rep. 289; City of Lexington v. McQuillan's Heirs, 9 Dana (Ky.) 513, 35 Am. Dec. 159. A state may make the ownership of property subject to taxation relate to any day or period of the year which it may think proper. Shotwell v. Moore, 129 U. S. 590, 9 Sup. Ct. 362, 32 L. Ed. 827. See "Taxation," Dec. Dig. {Key No.) §§ 39-^5; Cent. Dig. §§ 68-103. 6 Silkman v. Board of Water Com'rs, 71 Hun, 37, 24 N. Y. Supp. 806 ; St. Louis Brewing Ass'n v. St. Louis, 140 Mo. 419, 37 S. W. 525 ; Jones v. Board of Water Com'rs of Detroit, 34 Mich. 273. See "Water and Water Courses," Dec. Dig. (Key No.) § 203; Cent. Dig. §§ 290-299. 6 Jack V. Weiennett, 115 111. 105, 3 N. E. 445, 56 Am. Rep. 129 ; State v. Chicago & N. W. R. Co., 128 Wis. 449, 108 N. W^. 594; Jones v. Gibson, 82 ;§§ 157-158) GENERAL CONSIDERATIONS. 443 Power of Taxation in General. The power of taxation, as above stated, is an essential attribute of sovereignty. It is in theory absolutely unlimited in extent, but prac- tically it is hedged about with certain positive constitutional limita- tions, within which its exercise must be confined, in order to answer the requirement of legality^ It is likewise inalienable, though spe- cific exemptions from taxation may be granted in proper cases and upon sufficient considerations.^ Nor can this power be delegated, except to the extent to which it is necessary to enable municipal cor- porations to raise money by taxation for their own proper purposes." And neither lapse of time, failure of demand, nor the laches of public officers or agents can affect the right of the state to assess and collect taxes. ^° Same — Distinguished from Eminent Domain. The exaction of money from individuals under the power of taxa- tion, and the appropriation of private property for pubHc use by vir- tue of the power of eminent domain, should not be confused. In pay- ing taxes, the citizen contributes his just and ascertained share to the expenses of the government under which he lives. But when his prop- erty is taken under the power of eminent domain, he is compelled to .surrender to the public something above and beyond his due pro- portion for the public benefit. The matter is special. The particular estate is taken because the government has special need lor it. It is !Cf i Ky. 561 ; Geren v. Gruber, 26 La. Ann. 694 ; North Missouri R. Co. v. Ma- . R. A. 170 ; In re Macky's Estate (Colo.) 102 Pac. 1075. See "Taxation," Deo. Dig. (Key No.) § S59; Cent. Dig. § 1674- 7 8 Webb V. Balrd, 6 Ind. 13. See "Taxation," Dec. Dig. (Key No.) § 40; Cent. Dig. § 68. 7» On the distinction between taxes properly so called and local assess- ments, see Roosevelt Hospital v. New York, 84 N. T. 108; King v. Portland, 2 Or. 146; Palmer v. Stumph, 29 Ind. 329; Hale v. Kenosha, 29 Wis. 599; Ridenour v. Saffin, 1 Handy (Ohio) 464. See "Municipal OorporatiwbS," Dec. Dig. (Key No.) §§ 405-U8; Cent. Dig. §§ 1000-1070. 80 Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921, 31 L. Ed. 763. See ^'Municipal Corporations," Dec. Dig. (Key No.) § i07; Cent. Dig. § 1003. 81 Taylor v. Palmer, 31 Cal. 240. See "Municipal Corporations," Dec Dig. {Key No.) § 467; Cent. Dig. §§ 1110, 1111. 462 THE POWER OF TAXATION. (Ch. 15 making discriminations in the rate of tax imposed upon the several classes, if it be done in pursuance of a fair and reasonable system.*^ Such a distinction may be made, for instance, between debts owing- from individuals and those due from corporations ; *' between real and personal property ; ^* between domestic and foreign corpora- tions ;^° between railroad companies and other kinds of corporate organizations; ^* between different trades, occupations, or pursuits; " or between the different counties of the state on the basis of their pop- ulation.** But the ground of classification, whatever it may be, must rest on some sound reason of public policy or some substantial differ- ence of situation or character, and not be merely arbitrary, invidious, or unreasonable; *° and further, the burden of taxation must be equal and uniform as to all persons or property within the limits of the same class.*" 82 City of New Orleans v. Kaufman, 29 La. Ann. 283, 29 Am. Rep. 328 r State V. Lathrop, 30 La. Ann. 398; State v. Kruttschnitt, 4 Nev. 178; Beals v. State (Wis.) 121 N. W. 347. See "Taxation," Dec. Dig. (Key No.) § 42; Cent. Dig. § 95. 83 Commonwealth v. Lehigh Val. R. Co., 129 Pa. 429, 18 Atl. 406. See "Tax-, ation," Dec. Dig. (Key No.) § 42; Cent. Dig. § H. 84 McLendon v. Lagrange, 107 Ga. 356, 33 S. E. 405 ; Missouri, K. & T. R. Co. V. Board of Com'rs of Miami County, 67 Kan. 434, 73 Pac. 103. But see Oilman v. Sheboygan, 2 Black, 510, 17 L. Ed. 305. See "Taxation," Dec. Dig. (Key No.) §§ 40, 42; Cent. Dig. §§ 72, 90-95. 8 5 Bacon v. Board of State Tax Com'rs, 126 Mich. 22, 85 N. W. 307, 60 L. R. A. 321, 86 Am. St Rep. 524. See "Taxation," Dec. Dig. (Key No.) § 42; Cent. Dig. §§ 92, 93. 86 State Board of Assessors v. Central R. Co., 48 N. J. Law, 146, 4 Atl. 578. See "Taxation," Dec. Dig. (Key No.) § .^2; Cent. Dig. §§ .90-95. 87 Rosenbloom v. State, 64 Neb. 342, 89 N. W. 1053, 57 L. R. A. 922. See Juniata Limestone Co. v. Fagley, 187 Pa. 193, 40 Atl. 977, 42 L. R. A. 442, 67 Am. St. Rep. 579. See "Taxation," Dec. Dig. (Key No.) §§ 40, 42; Cent. Dig. §§ 68-95. 88 Commonwealth v. Mann, 168 Pa. 290, 31 Atl. 1003. See "Taxation," Deo. Dig. (Key No.) § 42; Gent. Dig. § 95. 89 Singer Mfg. Co. v. Wright (C. C.) 33 Fed. 121 ; People v. Henderson, 12 Colo. 369, 21 Pac. 144 ; Rosenbloom v. State, 64 Neb. 342, 89 N. W. 1053, 57 L. R. A. 922 ; Central R. Co. v. State Board of Assessors, 48 N. J. Law, 1, 2 Atl. 789, 57 Am. Rep. 516; Nashville, C. & St. L. R. Co. v. Taylor (C. C.) 86 Fed. 168. See "Taxation," Dec. Dig. (Key No.) § 42; Cent. Dig. §§ 90-95. 9 Elting v. Hickm'an, 172 Mo. 237, 72 S. W. 700; Pilie v. State, 5 Ark. 204;. George Schuster & Co. v. Louisville, 124 Ky. 189, 28 Ky. Law Rep. 588, 89 S. W. 689; Attorney General v. Winnebago Lake & F. R. Plank Road Co., 11 wis. 35! See "Taxation," Dec. Dig. (Key No.) §§ 40, 42; Cent. Dig. §§ 68-95. §§ 165-166) EQUAMTT AND UNIFORMITY IN TAXATION. 463 Assessment and Bqualization. The requirement of equality and uniformity applies primarily to the law under which taxes are imposed, not to the administration of it.'^ But if assessors or boards of equalization intentionally and sys- tematically adopt and follow rules which tend to defeat the constitu- tional requirement, and are in fact calculated to bring about inequali- ties and a want of uniformity, this may render the entire assessment illegal and justify the interference of the courts.'^ Bxemptions. The rule of equality and uniformity may be said generally to de- mand that all persons who are liable, or all property which is liable, to taxation should be called upon to bear a share of the public bur- dens. Yet the exemption of persons or property from taxation will not invariably or necessarily violate this rule. Especially is this the case where the exemptions were made by reason of a public benefit or other adequate consideration moving to the state from the parties ex- empted. And the general principle is not to be taken so strictly as to deny the validity of the exemptions usually made for special reasons of public policy, such, for example, as the mechanic's tools, household furniture to a limited extent, the property of the very poor, and the property of religious, educational, and charitable associations.'' Commutation of Taxes. Commutation of taxes is not in general either unconstitutional or productive of inequality or a want of uniformity. For example, where a tax is levied in labor or anything else than money, and the privilege is extended to the tax payer of commuting the tax by the payment of an equivalent in money, such a provision is valid and legal, provided the privilege is offered to all who are called upon to pay the tax, with- 91 Spencer v. People, 68 111. 510 ; Dundee Mortgage & T. I. Co. v. School Dist. No. 1 (C. C.) 21 Fed. 151. See "Taxation," Dec. Dig. (Key A'o.) §§ 37-45; Cent. Dig. §§ 68-103. 82 Marsh v. Board of Sup'rs of Clark County, 42 Wis. 502 ; McTwiggan v. Hunter, 18 R. I. 776, 30 Atl. 962 ; State v. Osborn, 60 Neb. 415, 83 N. W. 357 ; Andrews v. King County, 1 Wash. St. 46, 23 Pac. 409, 22 Am. St. Rep. 136 ; Lively V. Missouri, K. & T. Ry. Co. of Texas (Tex.) 120 S. W. 852. See "Taxa- tion," Dec. Dig. (Key No.) §§ 37-45; Cent. Dig. §§ 68-103. 93 W. C. Peacock & Co. v. Pratt, 121 Fed. 772, 58 C. C. A. 48 ; High v. Shoe- maker, 22 Oal. 363 ; People v. Aliller, 84 App. Dir. 168, 82 N. Y. Supp. 621 ; City of New Orleans v. Davidson, 30 La. Ann. 554. But see Town of Jackson- ville V. McConnel, 12 111. 138; Ex parte Jones, 38 Tex. Cr. R. 482, 43 S. W. 513. See "Tfixation," Dec. Dig. (Key No.) §§ 191-251; Cent. Dig. §§ 301-U5. 464 THE POWER OF TAXATION. (Ch. 15 out partiality or exception." So it is within the power of the legis- lature to enact that a railroad company shall have immunity from state and county taxation upon a quarterly payment of a certain amount in commutation, the right being reserved on the part of the state to annul the agreement at any time." Province and Duty of the Courts. The courts have no power, on the application of an individual, to ■declare a tax illegal and void, merely because it is made to appear that some other method of levying the contribution, or apportioning the individual shares of the public burden, would probably or certainly have secured a more exact justice and equality. But still, when the particular case is on its face so palpably oppressive and unequal as to furnish conclusive evidence that equality was not sought for but avoided, and that confiscation, instead of lawful taxation, was de- signed, then it is the right and duty of the judiciary to declare that the legislative body has overstepped the limits of its legal discretion."' DOUBI.E TAXATION. 167. Double taxation is forbidden by the constitutions of some states, and in others is held a violation of the rule of equality and uniformity. 168. To a certain extent it is a necessary result of any comprehensive scheme of taxation; and there is no unlaurful duplication of taxes in assessing the same property in different jurisdictions, or in the hands of different persons to ifhom it represents dis- tinct values. 169. But the presumption is always against the intent to impose double taxation, and a lair will not be so construed as to pro- duce this result unless required by its plain and express terms. »* Cooper V. Ash, 76 111. 11; Hunsaker v. Wright, 30 111. 146; Daughdrill v. Alabama Life Ins. & Trust Co., 31 Ala. 91 ; Gardner v. State, 21 N. J. Law, 557. See "Taxation," Dec. Dig. (Key No.) § 194; Cent. Dig. § 310; "Consti- tutional Law," Dec. Dig'. (Key No.) § 205; Cent. Dig. § 608. 9 5 Neary v. Philadelphia, W. & B. R. Co., 7 Houst. (Del.) 419, 9 Atl. 405. See "Taxation," Deo. Dig. (Key No.) § 191; Cent. Dig. § 307. 93 Appeal of Hopkins, 77 Conn. 644, 60 Atl. 657 ; State v. District Court of Hennepin County, 33 Minn. 235, 22 N. W. 625 ; Commonwealth v. People's Five Cents Savings Bank, 5 Allen (Mass.) 436 ; Dundee Mort, T. I. C5o. v. School Dist. No. 1, Multnomah County (C. C.) 19 Fed. 359 ; Slack v. MaysvlUe & L. R. Co., 13 B. Hon. (Ky.) 1. See "Taxation," Deo, Dig. (Key No.) §§ 37-45; Cent. Dig. §§ 64-103. §§ 167-169) DOUBLB TAXATION. 465 The constitutions of some of the states contain express prohibitions against double taxation ; V in others, such a prohibition is considered to follow as a corollary from the requirement of equality and uniform- ity; "' but in some duplicate taxation is not unconstitutional, and the question of its imposition is held to be one of expediency for the con- sideration of the legislature, and not one of power for the considera- tion of the courts."' Universally, however, it is considered unjust, unfair, and unreasonably burdensome, and the courts will avoid it by construction when possible ; that is, it will never be presumed that the legislature intended to impose double taxes, but on the contrary, a statute will not be held to produce that result unless it is so required by its plain, express, and unmistakable terms.^"" Nevertheless it is not practically possible to avoid double taxation entirely. Any com- prehensive system of taxation, and particularly where taxes are laid upon both tangible and intangible personal property, will result in some duplications of the burden ; and this is not a fatal objection to a revenue law.^"^ And further, where the same property represents distinct values belonging to different persons, the fact that each is taxed on the value which the property represents in his hands does not constitute double taxation. ^°^ Thus, a tax may be laid on mortgages, 7 City and County of San Francisco v. Mackey (0. C.) 22 Fed. 602. See "Taxation," Dec. Dig. (Key No.) § 47; Cent. Dig. § 104. 98 Ellis V. Frazier, 38 Or. 462, 63 Pac. 642, 53 L. R. A. 454. See "Taxation," Dec. Dig. (Key No.) § 47; Cent. Dig. §§ 104-114- 99 People V. Roberts, 157 N. Y. 677, 51 N. E. 1093 ; Toll Bridge Co. v. Os- born, 35 Conn. 7 ; New Jersey R. & Ti-ansp. Co. v. Collectors of East, Fifth, and Ninth Wards of City of Newark, 25 N. J. Law, 315 ; Pacific Nat. Bank of Tacoma v. Pierce County, 20 Wash. 675, 56 Pac. 936. See "Taxation," Deo. Dig. (Key No.) § 4t ; Gent. Dig. §§ 104-114- 100 Salem Iron Factory Co. v. Danvers, 10 Mass. 514 ; Boston Water Power Co. v. Boston, 9 Mete. (Mass.) 199 ; Nashua Savings Bank v. Nashua, 46 N. H. 389 ; Wright v. Louisville & N. R. Co., 117 Fed. 1007, 54 C. C. A. 672 ; First Nat. Bank v. Douglas County, 124 Wis. 15, 102 N. W. 315; Bell v. Watson, 3 Lea (Tenn.) 328; Commonwealth v. Fall Brook Coal Co., 156 Pa. 488, 26 Atl. 1071; Gelding v. Collector of Borough of Chambersburg, 37 N. J. Law, 258 ; Rockingham Ten Cent Sav. Bank v. Portsmouth, 52 N. H. 17 ; Osborn V. New York & N. H. R. Co., 40 Conn. 491; Board of Revenue of Montgom- ery County V. Montgomery Gaslight Co., 64 Ala. 269 ; Com. v. Walsh's Trustee (Ky.) 117 S. W. 398. See "Taxation," Dec. Dig. (Key No.) §§ 47, 58; Cent. Dig. §§ 104-114, 135. 101 Augusta Bank v. Augusta, 36 Me. 255, 259. See "Taxation," Deo. Dig. (Key No.) § ^7; Cent. Dig. §§ 104-114- 102 United States Electric Power & Light Co. v. State, 79 Md. 63, 28 Atl. 768. See "Taxation," Dee. Dig. (Key No.) § 47; Cent. Dig. § 104. BL.CoNST.L.(3D.Ep.)— 30 466 THE POWER OF TAXATION. (Ch. 15 or debts secured by mortgage, although at the same time the real es- tate covered by the mortgage may be taxed tp the owner of the equity of redemption at its full value.^"^ To tax the capital stock of a cor- poration and also the property in which that capital is invested would be double taxation and contrary to the rule which forbidls it.^°* But the capital stock of a corporation, considered as an asset of the com- pany, is a different thing from the aggregate of the shares of stock, in the hands of the stockholders and considered as their individual property, and both may be taxed."° So also there is no constitutional objection to imposing a license tax on the privilege of conducting a given business and also an ad valorem tax on the property employed in that business.'^"^ And it is not double taxation where the same article or property is taxed in two states, where each has a right to tax it on account of its situs or the domicile of the owner.^"' And a tax may be levied on income derived from property, although the corpus of the property has also been taxed.^"' TAXATION AND BEFBESENTATION. 170. It is at, fundamental maxim of republican government that taxa- tion and representation should go together. But this means that the local legislature should make the local la'nrs, includ- ing tax lanrs. It does not mean that a, tax latr is invalid un- less every person Tvho is liable to pay a, part of the tax had a vote in the election of the legislative body which imposed it. 103 People V. Whartenby, 38 Cal. 461; Lamar v. Palmer, 18 Fla. 147; Ap- peal Tax Court of Baltimore City v. Kice, 50 Md. 302; People v. Board of Sup'rs, 71 Mich. 16, 38 N. W. 639 ; Stumpf v. Storz (Mich.) 120 N. W. 618. See "Taxation," Dec. Dig. (Key No.) § 47; Cent. Dig. § 107. 104 Frederick County Com'rs v. Farmers' & Mechanics' Nat. Bank, 48 Md. 117 ; Lewiston Water & Power Co. v. Asotin County, 24 Wasli. 371, 64 Pac. 544. And see City and County of San Francisco v. Mackey (C. C.) 22 Fed. 602 ; Cheshire County Tel. Co. v. State, 63 N. H. 167. See "Taxation," Dec. Dig. (Key No.) § 47; Cent. Dig. § 109. 105 state V. Bank of Commerce, 95 Tejm. 221, 31 S. W. 993; City of Mem- phis V. Ensley, 6 Baxt. (Tenn.) 553, 32 Am. Rep. 532. See "Taxation," Dec. Dig. (Key No.) § 47; Cent. Dig. § 110. 106 Morgan v. Commonwealth, 98 Va. 812, 35 S. E. 448; State v. Jones, 9 Idaho, 093, 75 Pac. 819; City of New Orleans v. People's Ins. Co., 27 La. Ann. 519. See "Taxation," Dec. Dig. (Key No.) § 47; Cent. Dig. § 108. 107 Griggsry Const. Co. v. Freeman, 108 La. 435, 32 South. 399, 58 L. R. A. 349 ; State v. Fidelity & Deposit Co., 35 Tex. Civ. App. 214, 80 S. W. 544. See "Taxation," Dec. Dig. (Key No.) § 47; Cent. Dig. §§ 105, 106. 108 City of Memphis v. Ensley, 6 Baxt. (Tenn.) 553, 32 Am. Rep. 532. See "Taxation," Dec. Dig. (Key No.) § 47; Cent. Dig. § 113. § 171) ta:5.ation under the police eowek. 467 That taxation without representation is vicious in principle and contrary to the fundamental principles of a free and representative government, being liable to despotic abuse, is the unanimous declara- tion of our courts as well as of publicists."" But while tax laws are to be so construed, if possible, as not to impose taxes without the consent of the people taxed or of their immediate representatives,^^* still this maxim of government does not prevent the imposition of taxes upon the property of persons who have not the right to vote, such as infants, married women, aliens, and the inhabitants of the District of Columbia.^^^ TAXATION UNDER THE FOIilCE FOWEB. 171< Beside the general po^^er of taxation, the state has power to im- pose burdens, in the nature of taxes, upon special occupations or special hinds of property, with a view rather to regulation than to revenue, under the po-wer of police. License fees, occupation taxes, inspection fees, and other like ex- actions, which are not imposed for the purpose of raising revenue, but for the proper regulation of matters deemed essential to the public safety, health, or welfare, are not "taxes" in the ordinary and proper sense of that term, and are not governed by the constitutional rules and maxims applicable to taxation, but by those which define and limit the exercise of the police power/^^ 109 Harward v. St. Clair & M. Levee & Drainage Co.. 51 111. 130; Gage v. Graham, 57 111. 144 ; Keasy v. Brlcber, 60 Pa. 9 ; Cooley, Taxation, p. 58. See "Taxation;' Dec. Dig. {Key No.) S§ 4, 30; Cent. Dig. §§ J,, 60. 110 Keasy v. Brieker, GO Pa. 9. See "Bounties," Dec. Dig. {Key 7fo.) § 1; Cent. Dig. § S. 111 Smith V. Macon, 20 Ark. 17; Wheeler v. Wall, 6 Allen (Mass.) 558; Loughborough v. Blake, 5 Wheat. 317. 5 L. Ed. 98. See "Taxation," Dec. Dig. (Key No.) §§ 59, 219; Cent. Dig. §§ 138, 363; "District of Columbia," Cent. . Dig. § 3. ii2Youngblood v. Sexton, 32 Mich. 406, 20 Am. Rep. 654; Willis v. Stand- ard Oil Co., 50 Minn. 290, 52 N. W. 652 ; Louisiana State Board of Health v. Standard Oil Co., 107 La. 713, 31 South. 1015; State v. Bixman, 162 Mo. 1, 62 S. W. 828 ; Pace v. Burgess, 92 U. S. 372, 23 L. Ed. 657 ; O'Maley v. Bor- ough of Freeport, 96 Pa. 24, 42 Am. Rep. 527; In re Danville Rolling Mill Co. (D. C.) 121 Fed. 432 ; Tenney v. Lenz, 16 Wis. 566 ; City of Burlington v. Bumgardner, 42 Iowa, 673. See "Taxation," Dec. Dig. (Key No.) § 40; Cent. Dig. §§ 69, 70; "Licenses," Dec. Dig. (Key No.) § i; Cent. Dig. § J; "In- spection," Dec. Dig. (Key No.) §§ 2, 6; Cent. Dig. §§ 2, IZ. 468 THE EIGHT OF EMINENT DOMAIN. (Ch, 16 CHAPTER XVI. THE RIGHT OF EMINENT DOMAIN. 172. Definition and Nature of the Power. 173. Constitutional Provisions. 174. By Whom the Power is Exercised. 175. Legislative Authority Necessary. 176. Strict Construction of Statutes. 177-179. The Purpose must be Public. 180. What Property may be Taken. 181. Appropriation to New Uses. 182. The Taking. 183. Consequential Injuries. 184. Compensation. DEFINITION AND NATURE OF THE POWER. 3.72. The right of eminent domain is the right of the nation or the state, or of those to whom the ponrer has been laivfully dele- gated, to condemn private property to public use, and to ap- propriate the ownership and possession of such property for such use, upon paying to the o^mer a due compensation, to be ascertained according to law. There has been a certain ambiguity in the use of the term "eminent domain" in consequence of a confusion between the power and juris- diction which the state exercises over the public property, such as the public or navigable waters of the state and tide lands or sea shore,^ and public parks or reservations, and the right and power . of the state to assume the ownership of that which before was private prop- erty. But it is not an accurate use of language to apply the term "eminent domain" to such property as is owned directly by the govern- ment and which has not yet passed into any private ownership. 3uch property is more correctly described as the "national domain" or the "public domain," as the case may be, and the power of the nation or of the state over it is best designated as "territorial sovereignty." The 1 Webber v. State Harbor Oom'rs, 18 Wall. 57, 21 L. Ed. 798 ; PoUard v. Hagan, 3 How. 212, 11 L. Ed. 565 ; Ormerod v. New York, W. S. & B. R. Co. (C. C.) 13 Fed. 370. See "Eminent Domain," Dec. Dig. (Key No.) §§ 1, 4; Cent. Dig. §§ 1, 2, 14. § 172) DEFINITION AND NATURE OF THE POWER. 46& word "eminent," in this connection, implies a power or title which is paramount to some other power or title. It implies that the land is held in private ownership, but that there exists in the state a higher claim, namely, the right to divest that ownership and vest the title in the state, when the public exigencies demand it, and upon making just compensation. The true idea of the power of eminent domain is that it is a right in the government, acting in the interest of the whole public, to force the owner of property to sell the same to the public, from whom his title originally came, and subject to whose needs it is always held.^ It also follows that this power is an inherent and necessary power of sovereignty, and is not created by the consti- tutions. In fact, the constitutions merely recognize its existence and then proceed to guard the citizen against its arbitrary or unjust exer- cise, by providing that it may not be wielded except for the benefit of the public and that compensation shall not be withheld.^ The power of eminent domain, being an inherent attribute of sov- ereignty and a necessary power of the state, the preservation of which, unimpaired and unfettered, is essential to the growth and welfare of the community, is inalienable. That is to say, no legislature can have power, by any grant or contract, to surrender or bargain away the power of eminent domain so as to bind the state, in thie future, to re- frain from its exercise when a proper and necessary occasion shall arise.* That this power is to be distinguished from the power of taxation has been explained in the chapter dealing with the latter power. In paying taxes, the citizen contributes his just and ascertained share to the expenses of the government under which he lives. But when his 2 Consumers' Gas Trust Co. v. Harless, 131 Ind. 446, 29 N. E. 1062, 15 L. K. A. 505 ; In re Board of Water Supply of City of New York, 58 Misc. Rep. 581, 109 N. Y. Supp. 1036 ; Woodmere Cemetery v. Roulo, 104 Mich. 595, 62 N. W. 1010. Sec "Eminent Domain," Dec. Dig. (Key No.) % 1; Cent. Dig. § 1. 3 Cincinnati, I. & W. R. Co. v. Connersville, 170 Ind. 316, 83 N. E. 503 ; Con- sumers' Gas Trust Co. v. Harless, 131 Ind. 446, 29 N. E. 1062, 15 L. R. A. 505 ; Central Branch Union Pac. R. Co. v. Atchison, T. & S. F. R. Co., 28 Kan. 453 ; Samlsh River Boom Co. v. Union Boom Co., 32 Wash. 586, 73 Pac. 670 ; Pot- latch Lumber Co. v. Peterson, 12 Idaho, 769, 88 Pac. 426, 118 Am. St. Rep.. 233. See "Eminent Domain," Dec. Dig. (Key No.) § 1; Cent. Dig. § 1. i Village of Hyde Park v. Oakwoods Cemetery Ass'n, 119 111. 141, 7 N. E. 627 ; Commonwealth v. Broad St. Rapid Transit St. R. Co., 219 Pa. 11, 67 Atl. 958 ; Hollister v. State, 9 Idaho, 8, 71 Pac. 541. See "Eminent Domain," Dec. Dig. (Key No.) § i; Cent. Dig. § 18; "Constitutional Law," Deo. Dig. (Key/ No.) § 50; Cent. Dig. §§ 48, 49. 470 THE EIGHT OF EMINENT DOMAIN. (Ch. 16 property is taken under the power of eminent domain, he is compelled to surrender to the public something over and above his due propor- tion, for the public benefit, and for which he receives a direct pecuni- ary compensation.^ This power is also to be distinguished from the power to regulate the use of private property, to the end that such use shall not be detrimental to the public safety, health, or morals. Regu- lation of this kind and for this purpose is justified as an exercise of the police power, but it does not amount to an expropriation of the property or a divesting of the title, and hence does not require com- pensation in money. ° CONSTITUTIONAI. PROVISIONS. 173. In the fifth amendment to the federal constitution it is declared that private property shall not he taken for puhlic use -without just compensation. And the constitutions of all the states contain similar guaranties. The provisions of the fifth amendment were intended only as a limitation upon the powers of the general government, and do not affect the several states.^ But all the states have been careful to in- corporate in their constitutions such provisions as would suffice to extend a similar protection to private property against the exertion of their own sovereign powers.^ In some of the states, the guaranty is in the same words as are employed in the federal constitution. In Board of Com'rs of Jackson County v. State, 147 Ind. 476, 46 N. E. 908 ; Kimball v. Grantsville City, 19 Utah, 368, .57 Pac. 1, 45 L. R. A. 628 ; Roberts v. Smith, 115 Mich. 5, 72 N. W. 1091. See "Eminent Domain," Dec. Dig. (Key No.) § 2; Cent. Dig. §§ 9-lS. e Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979 ; People v. Illinois Cent. R. Co., 235 111. 374, 85 N. E. 606, 18 L. R. A. (N. S.) 915 ; State v. Robb, 100 Me. 180, 60 Atl. 874 ; State v. Main, 69 Conn. 123, 37 Atl. 80, 36 L. R. A. 623, 61 Am. St. Rep. 80 ; Sprague v. Dorr, 185 Mass. 10, 69 N. E. 344 ; Stone v. Pritts, 169 Ind. 361, 82 N. E. 792, 15 L. R. A. (N. S.) 1147 ; Atlantic, S. R. & G. R. Co. v. State, 42 Fla. 358, 29 South. 319, 89 Am. St. Rep. 233 ; Houston & T. O. R. Co. v. Dallas, 98 Tex. 396, 84 S. W. 648, 70 L. R. A. 850 ; Noble State Bank v. Haskell (Okl.) 97 Pac. 590. See "Eminent Domain," Deo. Dig. (Key No.) § 2; Cent. Dig. §§ 4-8. 7 Kimball v. Grantsville City, 19 Utah, 368, 57 Pac. 1, 45 L. R. A. 628. See "Eminent Domain," Dec. Dig. (Key No.) §§ 2, S; Cent. Dig. § 13. 8 Southern Illinois & M. Bridge Co. v. Stone, 174 Mo. 1, 73 S. W. 453, 63 L. R. A. 301. See "Eminent Domain," Dec. Dig. (Key No.) § 10; Cent. Dig. %% 35-1,8. § 174) BT WHOM THE POWER IS EXERCISED. 471 Others, it is somewhat more comprehensive, declaring that no man's property shall be taken, damaged, or destroyed for public use without just compensation being made. In many of the states, the compensa- tion for property so taken must be determined by a jury, and in the same and some other states, the compensation must be paidl to the pri- vate owner before the taking. In addition, the provisions of the fourteenth amendment to the federal constitution, requiring "due process pi law" and the "equal protection of the laws," are applicable to condemnation proceedings under the power in question.* BY .W^HOM THE FO'WEB IS EXERCISED. 174. The poiver of eminent domain, being an attribute of sovereignty, belongs primarily to every government as sucli. It is vest- ed in— (a) The government of the United States, so far as may be necessary for the proper performance of its duties and functions. (b) The government of each of the states. (c) Municipal corporations, vrhen delegated to them by the legisla- ture for their appropriate purposes. (d) Private corporations urhich discharge a public duty or are de- signed to promote the public convenience, under a similar dele- gation. The United States. Within its own sphere, and with reference to its own constitutional duties and functions, the government of the United States is sovereign, and therefore must possess the power of eminent domain, as well as all other sovereign powers. Whenever it may be necessary to appro- priate private property for the carrying on of any of the proper un- dertakings or offices of the general government, that government may exercise its power of eminent domain, as well within the limits of a state as in the districts subject to its exclusive jurisdiction, and the consent or co-operation of the state is not required.^" For instance, 9 Backus V. Fort St. Union Depot Ck)., 169 U. S. 557, 18 Sup. Ct 445, 42 L. Ed. 853 ; Ruling v. Kaw Valley E. & Imp. Co., 130 U. S. 559, 9 Sup. Ct. 603, 32 L. Ed. 1045 ; Baker v. Norwood (C. C.) 74 Fed. 997 ; Scott v. Toledo (C. C.) 36 Fed. 385, 1 L. R. A. 688. See "Constitutional Law," Dec. Dig. (Key No.) |§ 227, 228, 280, 281; Cent. Dig. §§ 817-890. 10 Kohl V. United States, 91 U. S. 367, 23 L. Ed. 449; Darlington v. United States, 82 Pa. 382, 22 Am. Rep. 766; People v. Humphrey, 23 Mich. 471, 9 Am. Rep. 94 ; Town of Nahant v. United States, 136 Fed. 273, 70 C. O. A. 641, 472 THE EIGHT OF EMINENT DOMAIN. (Ch. 16 the federal authorities may proceed directly, by their own officers and courts, and without the intervention of the state, to condemn and appropriate private property, anywhere situated, for post-offices, court- houses, forts, arsenals, light-houses, or military roads. Municipal Corporations. It is entirely proper, and in accordance with the principles of the constitution, that municipal corporations should be authorized to ex- ercise the power of eminent domain for the benefit of their own re- stricted "public," and in furtherance of the objects for which a share of government is committed to them. In the exercise of this power, just as in the case of taxation, a use may be local and yet public. That is, it may be public, in a proper sense, although it does not directly concern the entire population of the state, if it does concern the en- tire population of a district or division of the state. Hence cities, towns, counties, school districts, and other municipal corporations may be authorized to appropriate private property for such uses as streets, parks, public buildings, school houses, water works and the like. But this power is not inherent in municipalities, and cannot be exercised by them without statutory authority,^^ and in particular, express legis- lative authority is necessary for the condemnation by a municipal cor- poration of property beyond its corporate limits. ^^ Private Corporations. Moreover, the right to exercise this power may be delegated by the legislature to private corporations which, although their business is pursued for purposes of gain, yet stand in such a relation to the public that, they may be considered as promoting the public convenience, or discharging a public office or duty, or .carrying on works which are of general public utility. Such are railroad companies, bridge and turnpike corporations, gas companies, water companies, electric light and power companies, irrigation companies, and many others of the kind now generally spoken of as "public service corporations." ^' 69 L. R. A. 723; Alexander v. United States, 39 Ct. CI. 383. See "Eminent Domain," Dec. Dig. (Key No.} § 5; Cent. Dig. §§ 19-23. 11 Louisville & N. R. Co. v. Louisville (Ky.) 114 S. W. 743; Stdwe v. Town of Newborn, 127 Ga. 421, 56 S. E. 516 ; City of Jackson v. Williams, 92 Miss. 301, 46 South. 551 ; Shoe v. Nether Providence Tp., 3 Pa. Super. Ct. 137. See "Eminent Domain," Dec. Dig. (Key No.) § 9; Cent. Dig. §§ 27-3.^. 12 Puyallup V. Lacey, 43 Wash. 110, 86 Pac. 215. See "Eminent Domain," Dec. Dig. (Key Vo.) § 9; Cent. Dig. §§ 21-Si. 13 Lake Koen Navigation, Reservoir & Irrigation Co. v. Klein, 63 Kan. 484, 65 Pac. 684 ; Southern Illinois & M. Bridge Co. v. Stone, 174 Mo. 1, 73 S. W. § 174) BY WHOM THE POWER IS EXERCISED. 473 The right of a company to exercise the power of eminent domain may pass by a sale and conveyance of its property and franchises to a new corporation ; ^* but a lessee of a public service corporation has no right, merely as such lessee, to exercise the power of eminent do- main possessed by the lessor.^'' Foreign Corporations. In the absence of constitutional inhibition, it is competent for a legis- lature to authorize a foreign corporation to exercise the power of eminent domain for public uses- within the state ; but no such power can be claimed by a foreign corporation on the mere ground of inter- state comity, or by virtue of the rights which it possesses under its charter, or on any other basis than that of express legislative grant or consent.^ ^ Private Persons. In some rare and exceptional cases natural persons, as individuals, are permitted to exercise the power of eminent domain, but only when the property taken is intended to be devoted to a public service or a general public benefit, as might be the case if the condemnation were effected by a public service corporation, and never for their private benefit or adlvantage.^^ 453, 63 L. R. A. 301; In re East Canada Creek Electric Light & Power Co., 49 Misc. Rep. 565, 99 N. Y. Supp. 109 ; Petition of Johnstown, I. & W. Turn- pike Co., 5 Pa. Super. Ct. 65 ; Jacobs v. Clearview Water Supply Co., 220 Pa. 388, 69 Atl. 870, 21 L. R. A. (N. S.) 410 ; Alfred Phosphate Co. v. Duck River Phosphate Co. (Tenn.) 113 S. W. 410; Wisconsin River Imp. Co. v. Pier, 137 Wis. 325, 118 N. W. 857, 21 L. R. A. (N. S.) 538. See Louisiana Navigation & Fisheries Co. v. Doullut, 114 La. 906, 38 South. 613. See "Eminent Do- main," Dec. Dig. (Key No.) § 10; Cent. Dig. §§ 35-48. 14 BrinkerhofC v. Newark & H. Traction Co., 66 N. J. Law, 478, 49 Atl. 812. See "Eminent Domain," Dec. Dig. (Key No.) § 10; Cent. Dig. §§ 37, 38. 15 Western Union Tel. Co. v. Pennsylvania R. Co., 195 U. S. 594, 25 Sup. Ct. 150, 49 L. Ed. 332. See "Eminent Domain," Dec. Dig. (Key No.) § 10; Cent. Dig. § 38. 18 Columbus Waterworks Co. v. Long, 121 Ala. 245, 25 South. 702 ; Chestatee Pyrites Cx>. v. Cavenders Creek Gold Min. Co., 119 Ga. 354, 46 S. E. 422, 100 Am. St. Rep. 174 ; Illinois State Trust Co. v. St. Louis, I. M. & S. R. Co., 208 111. 419, 70 N. E. 357; Southern Illinois & M. Bridge Co. v. Stone, 174 Mo. 1, 73 S. W. 453, 63 L. R. A. 301 ; Helena Power Transmission Co. v. Spratt, 35 Mont. 108, 88 Pac. 773, 8 L. R. A. (N. S.) 567. Central Union Tel. Co. v. Co- 17 Beveridge v. Lewis, 137 Cal. 619, 70 Pac. 1083, 59 L. R. A. 581, 92 Am. St. Rep. 188 ; Ortiz v. Hansen, 35 Colo. 100, 83 Pac. 964. iSee "Eminent Domain," Dec. Dig. (Key No.) § llj Cent. Dig. §§ 49, SO. 474 THE EIGHT OF EMINENT DOMAIN. (Ch. 16 LEGISLATIVE AUTHORITY NECESSARY. 175. The power of eminent domain can be exercised only in pursuance of legislative authority, and on the occasions and in the modes designated by the legislature. The power of eminent domain is indeed inherent in the sovereignty, but it remains formless and inactive until it is called into operation and directed to its object by the legislative power of the state. It is for the legislature to prescribe the occasions for its exercise, as also the conditions upon which the power may be resorted to, and the methods and instrumentalities by which its application to the property of individuals shall be compassed. It is also for the state, by its legis- lative body, to determine when the exigency arises which will justify calling this power into exercise. And it may likewise determine the specific objects to which it shall be directed." That is, the legisla- ture may decide what parcels of land, or other property, shall be taken for a given public use, and the owner has no constitutional right to demand a hearing and an opportunity to contest the necessity of the particular appropriation which afifects his interests. In practice, how- ever, the determination of this question is usually referred to commis- sioners, before whom all the parties in interest have a right to appear and be heard, or to a jury.^' liimbiis Grove, 28 Ohio Cir. Ct. E. 131 ; Burnett v. Postal Telegraph Cable Co., 79 S. C. 462, 60 S. E. 1116 ; Evansville & H. Traction Co. v. Henderson Bridge Co. (C. C.) 134 Fed. 973, Id., 141 Fed. 51, 72 O. C. A. 539. See "Eminent Do- main," Deo. Dig. (Key No.) § 10; Cent. Dig. §§ 36, SS. 18 Shasta Power Co. v. Walker (C. C.) 149 Fed. 568; Mercer County v. Wolff, 237 111. 74, 86 N. E. 708 ; Gillette v. Aurora Rys. Co., 228 111. 261, 81 N. E. 1005 ; Hayford v. Bangor, 102 Me. 340, 66 Atl. 731, 11 L. R. A. (N. S.) 94(T; Zircle v. Southern R. Co., 102 Va. 17, 45 S. E. 802, 102 Am. St. Rep. 805 ; Painter v. St. Clair, 98 Va. 85, 34 S. E. 989. See "Eminent Domain," Dec. Dig. (Key No.) § 1; Cent. Dig. §§ 1, 2. 19 The question of the necessity of the appropriation (whether or not par- ticular property shall be taken), aside from the question of the amount of com- pensation to be made, is not one which must be determined by a jury, or in the forms of judicial proceedings, unless the constitution of the state specifi- cally so provides. No constitutional right of trial by jury can be here claimed, unless explicitly given. "The appropriation of the property is an act of public administration, and the form and manner of its performance are such as the legislature in its discretion may prescribe." People v. Smith, 21 N. Y. 595. See U. S. V. Harris, 1 Sumn. 21, Fed. Cas. No. 15,315. But If the constitution provides that the question of appropriation shall be submitted to a jury, the § 176) STRICT CONSTKUCTION OF STATUTES. 475 STRICT CONSTRUCTIOIf OF STATUTES. 176. Statutes authorizing the exercise of this power will he strictly construed, and those charged with the execution of the poiirer •mil he held to a strict compliance with all the conditions and requirements of the statute. Since the exercise of the power of eminent domain is in derogation of common right, and is a high exertion of the paramount rights of the sovereign, it must be hedged about with all needful precautions for the protection and security of the citizen. And for this reason it is held that statutes authorizing the appropriation of private property for public use must be strictly construed.^" An intention to authorize such taking will never be presumed, nor deduced from anything but clear and unambiguous terms. Especially is this the case with regard to the delegation of this power to private corporations. Such a cor- poration will never be presumed to be invested with the power. If it claims the right to condemn property for its uses, it must show a grant of such power."^ Nor will a grant of the power be enlarged by mere implication. Thus, if the charter of a corporation gives it the right to appropriate private property for certain enumerated purposes, it will possess no authority to take land for any other purposes, and no such extension of its powers can be deduced by mere inference from the requirement is mandatory. Arnold v. Decatur, 29 Mich. 77. See "Jury," Dee. Dig. {Key No.) § W; Cent. Dig. § 111. 2 Harvey v. Aurora & G. R. Co., 174 111. 295, 51 N. E. 163; Gillette v. Aurora Rys. Co., 228 111. 261, 81 N. B. 1005 ; Goddard v. Chicago & N. W. R. Co., 104 111. App. 526 ; Painter v. St. Clair, 98 Va. 85, 34 S. E. 989 ; Norfolk & W. R. Co. V. Lynchburg Cotton Mills Co., 106 Va. 376, 56 S. E. 146 ; Chesa- peake & O. R. Co. V. Walker, 100 Va. 69, 40 S. E. 633 ; Edgerton v. Huff, 26 Ind. 35 ; People v. Gloversville, 128 App. Div. 44, 112 N. Y. Supp. 387 ; John- son City Southern R. Co. v. South & W. R. Co., 148 N. C. 59, 61 S. E. 683 ; Central Union Tel. Co. v. Columbus Grove, 28 Ohio Cir. Ct. R. 131 ; Puyallup V. Lacey, 43 Wash. 110, 86 Pac. 215. See "Eminent Domain," Dec. Dig. (Key No.) § 8; Cent. Dig. §§ 25, SO, 31 J,S, 44- 21 Phillips V. Dunkirk, W. & P. R. Co., 78 Pa. 177; Allen v. Jones, 47 Ind. 438 ; Southern Illinois & M. Bridge Co. v. Stone, 174 Mo. 1, 73 S. W. 453, 63 L. R. A. 301 ; Claremont R. & Lighting Co. v. Putney, 73 N. H. 431, 62 Atl. 727 ; Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429, 107 N. W. 405, 5 L. R. A. (N. S.) 638; JIull v. Indianapolis & C. Traction Co., 169 Ind. 214, 81 N. E. 657. ^See "Eminent Domain," Dec. Dig. (Key No.) § 8; Cent. Dig. § U' 476 THE RIGHT OF EMINENT DOMAIN, (Ch. 1& terms of the grant. ''^ Furthermore, the laws authorizing the exercise of this power must be exactly complied with, in respect to all the forms, conditions, and provisions made for the benefit and protection of the individual, before his property can lawfully be taken.^^ THE PURPOSE MUST BE PUBLIC. 177. The purpose for which the po-nrer of eminent domain is to be ex- ercised must he public, and not merely for the benefit of a^ private person. 178. The question irhether or not the purpose is a, public one is a. judicial question, upon which the determination of the legis- lature is not conclusive. 179. The purpose may be local (that is, confined to » municipal sub- division of the state), provided it is public with reference ta the people inhabiting the district to be affected. The Purpose to be Public. The power of eminent domain, like that of taxation, cannot be exercised by the state for the benefit of one or more particular in- dividuals. There is no power in any state government to take the property of one man and give it to another, or to. compel one man to sell his property to another, or to authorize one person to appro- priate the property of another, even though compensation be made ; ^* 2 2 Currier v. Marietta & C. R. Co., 11 Ohio St. 228. And see South & N. A. R. Co. V. Higliland Ave. & B. R. Co., 119 Ala. 105, 24 Soutli. 114 ; Water- bury V. Piatt Bros. & Co., 75 Conn. 387, 53 Atl. 958, 60 L. R. A. 211, ,96 Am. St. Rep. 229; Minnesota Canal & Power Co. v. Pratt, 101 Minn. 197, 112 N. W. 395, 11 L. R. A. (N. S.) 105. See "Eminent Domain," Deo. Dig. (Key No.) § 10; Cent. Dig. §§ 35-i8. 23 Manda v. Orange, 75 N. J. Law, 251, 66 Atl. 917. See "Eminent Domain," Deo. Dig. (Key No.) § 167; Cent. Dig. §§ ^52, ^53. 24 Clark V. Nash, 198 U. S. 361, 25 Sup. Ct. 676, 49 L. Ed. 1085 ; Gaylord v. Chicago Sanitary Dlst., 204 111. 576, 68 N. E. 522, 63 L. R. A. 582, 98 Am. St. Rep. 235 ; Brown v. Gerald, 100 Me. 351, 61 Atl. 785, 70 L. R. A. 472, 109 Am. St. Rep. 526 ; Rockingham County Light & Power Co. v. Hobhs, 72 N. H. 531,. 58 Atl. 46 ; United States v. Baltimore & O. R. Co., 27 App. D. C. 105 ; Pere Marquette R. Co. v. United States Gypsum Co., 154 Mich. 290, 117 N. W. 733 ; People V. Board of R. Com'rs, 192 N. Y. 573, 85 N. E. 1114 ; Grande Ronde Electrical Co. v. Drake, 46 Or. 243, 78 Pac. 1031 ; Fallsburg Power & Mfg. Co. V. Alexander, 101 Va. 98, 43 S. B. 194, 61 L. R. A. 129, 99 Am. St. Rep. 855 ; Hench v. Pritt, 62 W. Va. 270, 57 S. E. 808, 125 Am. St. Rep. 966. See "Emi- nent Domain," Dec. Dig. (Key No.) §§ i2-J5; Cent. Dig. §§ 7, 51-5i. :§§ 177-179) THE PURPOSE MUST BE PUBLIC. 477 and there is no rightful exercise of the power of eminent domain where the appropriation is made substantially for the benefit or ac- commodation of a single individual, though there may be an incidental or prospective advantage to the community.''^ On the other hand, the purpose will be considered public if it actually concerns or promotes the welfare or convenience of the whole people, notwithstanding one or more individuals may be peculiarly and directly benefited.^* But where the power. is committed to corporations organized primarily for .their own profit, through the medium of an undertaking which is in- tended or adapted to minister to the wants or the convenience of the general public (as in the case of public service corporations generally), the benefits of it must not be confined to a select few, but the general public must have a right to resort to the property acquired by con- -demnation, or to demand the service of the company, not as a mere favor, or by the permission or consent of the company, but as a right, and the property must be impressed with such a public use as will bring and keep it within the regulation and control of the legislature,''^ But the "public," in this sense, need not include the entire population ■of the state or community ; the requirement of a public use being satis- fied if the right to resort to the property or employ the service of the company is common, that is, equally available to all those, without discrimination, who desire to enjoy its advantages and will pay the reasonable and proper charges. ^^ 2 5 Stratford v. Greenboro, 124 N. C. 127, 32 S. E. 394; Pere Marquette R. ■Co. V. United States Gypsum Co., 154 Mich. 290, 117 N. W. 733. See "Eminent Domain,'" Dec. Dig. (Key No.) § H; Cent. Dig. § 54. 2s Ryan V. Louisville & N. Terminal Co., 102 Tenn. Ill, 50 S. W. 744, 45 L. R. A. 303 ; Wisconsin River Imp. Co. v. Pier, 137 Wis. 325, 118 N. W. 857, 21 L. R. A. (N. S.) 538. See "Eminent Domain," Ded. Dig. (Key No.) § 13; Cent. Dig. §§ 51-53. 27 Fallsburg Power & Mfg. Co. v. Alexander, 101 Va. 98, 43 S. E. 194, 61 Xi. R. A. 129, 99 Am. St. Rep. 855; Minnesota Canal & Power Co. v. Kooclii- chlng Co., 97 Minn. 429, 107 N. W. 405, 5 L. R. A. (N. S.) 638; Gaylord v. Chicago Sanitary Dlst., of Chicago, 204 111. 576, 68 N. E. 522, 63 L. R. A. 582, •98 Am. St. Rep. 295 ; Shasta Power Co. v. Walker (0, C.) 149 Fed. 568 ; Chesa- peake Stone Co. v. Moreland, 126 Ky. 656, 104 S. W. 762, 31 Ky. Law Rep. 1075, 16 L. R. A. (N. S.) 479 ; Alfred Phosphate Co. v. Duck River Phosphate ■Co. (Tenn.) 113 S. W. 410. See "Eminent Domain," Dec. Dig. (Key No.) §§ 13, U; Cent. Dig. §§ 51-5^. 2 8 Wisconsin River Imp. Co. v. Pier, 137 Wis. 325, 118 N. W. 857, 21 L. R. A. (N. S.) 538 ; Madera Ry. Co. v. Raymond Granite Co., 3 Cal. App. 668, 87 Pac. 27. See "Eminent Domain," Deo. Dig. (Key No.) §§ 13, 14; Cent. Dig. §§ ^l-Si. 4:78 THE RIGHT OF EMINENT DOMAIN. (Ch, 16 A Judicial Question. The mere fact that the legislature, in a statute, declares that a given use is a public use, and authorizes the taking of private property for it, does not necessarily make the use public, nor render lawful the ap- propriation of private property for it. It is well settled that, if in fact the use is public, the decision of the legislature that the public needs require the taking of private property to promote the use is final and conclusive. But the question, whether or not a given use is a public use, is a judicial question, and this must be determined by the courts, on the application of the person or persons to be affected.^" Illustrations of Public Purposes. Railroad companies, carrying on the general business of common carriers of passengers and freight, unquestionably serve a public use in such sense as to justify the delegation to them of the right of emi- nent domain for their necessary purposes."" But a branch or spur track or siding, constructed for the sole purpose of carrying the product of a single mine or factory, does not serve a public purpose."^ This 2 9 "Walker v. Shasta Power Co., 160 Fed. 856, 87 C. C. A. 600, 19 L. R. A. (N. S.) 725 ; Tanner v. Treasury Tunnel, Mining & Reduction Co., 35 Colo. 593, 83 Pac. 464, 4 L. R. A. (N. S.) 106; Pittsburgh, Ft. W. & C. R. Co. v. Sani- tary Dist. of Chicago, 218 111. 286, 75 K E. 892, 2 L. R. A. (N. S.) 226 ; I/ake Koen Navigation, Reservoir & Irrigation Co. v. Klein, 63 Kan. 484, 65 Pac. 684 ; Louisville & N. R. Co. v. Louisville (Ky.) 114 S. W. 743 ; Brown v. Ger- ald, 100 Me. 351. 61 Atl. 785, 70 L. R. A. 472, 109 Am. St. Rep. 526 ; TTlmer v. Lime Rock R. Co., 98 Me. 579, 57 Atl. 1001, 66 L. R. A. .887 ; Vinegar Bend Lumber Co. v. Oak Grove & G. R. Co., 89 Miss. 84, 43 South. 292 ; Southern Illinois & M. Bridge Co. v. Stone, 174 Mo. 1, 73 S. W. 453, 63 L. R. A. 301 ; Aldridge v. Spears, 101 Mo. 400, 14 S. W. 118 ; In re Tuthill, 36 App. Div. 492, 55 N. Y. Supp. 657 ; Apex Transp. Co. v. Garbade, 32 Or. 582. 52 Pac. 573, 62 L. R. A. 513 ; Jacobs v. Clearview Water Supply Co., 220 Pa. 388, 69 Atl. 870, 21 L. R. A. (N. S.) 410 ; Alexandria &. P. Ry. Co. v. Alexandria & W. R. Co., 75 Va. 780, 40 Am. Rep. 743 ; Hench v. Pritt, 62 W. Va. 270, 57 S. B. 808, 125 Am. St. Rep. 966. See "Eminent Domain," Dec. Dig. {Key No.) §§ 66, 67; Cent. Dig. §§ 165-161. 3 Walther v. Warner, 25 Mo. 277; Riley v. Cliarleston Union Station Co., 71 S. C. 457, 51 S. E. 485, 110 Am. St. Rep. 579. See "Eminent Domain," Dec. Dig. (Key No.) § W; Cent. Dig. §§ 59-67. 31 Alfred Phosphate Co. v. Duck River Phosphate Co. (Tenn.) 113 S. W. 410; Ulmer v. Lime Rock R. Co., 98 Me. 579, 57 Atl. 1001, 66 L. R. A. 387 ; People v. Pittsburgh R. Co., 53 Cal. 694; ShoU v. German Coal Co., 118 111. 427, 10 N. E. 199, 59 Am. Rep. 379. See "Eminent Domain," Dec. Dig. (Key No.) § 20; Cent. Dig. §§ 59-67. §§ 177-179) THE PURPOSE MUST BE PUBLIC. 479 power may also be exercised for the benefit of turnpike roads,^^ pub- lic bridges," ferries/* and telegraph lines." A municipal corporation may condemn property for necessary public buildings and grounds, such as municipal offices and jails," hospitals for the treatment of contagious diseases,^^ and public parks and squares advantageous to the public for recreation, health, or business;" and lands may be taken for a cemetery, when the general public has or may purchase the right to bury the dead therein." So, also, property is taken for a public use under a rightful exercise of the power of eminent domain, when needed for the laying out or altering of public highways, roads, and streets,*" though it may not be condemned for the purpose of constructing a private road or way across the lands of third persons.*^ 3 2 Petition of Johnstown, I. & W. Turnpike Co., 5 Pa. Super. Ct 65. See "Eminent Domain" Dec. Dig. (Key 'No.) § 19; Cent. Dig. §§ 56-58. 33 Southern Illinois & M. Bridge Co. v. Stone, 174 Mo. 1, 73 S. W. 4.13, 63 L. R. A. 301. See "Eminent Domain," Dec. Dig. (Key No.) § 22; Cent. Dig. §J 671/2, 68. 3 4 Pool V. Simmons, 134 Cal. 621, 66 Pac. 872. See "Eminent Domain" Dec. Dig. (Key No.) § 22; Cent. Dig. § 68. 3 5 Western Union Tel. Co. v. Pennsylvania R. Co., 123 Fed. 33, 59 C. C. A. 113 ; Mobile & O. R. Co. v. Postal Tel. Cable Co., 120 Ala. 21, 24 S'OUth. 408 ; Pierce v. Drew, 136 Mass. 75, 49 Am. Rep. 7. >See "Eminent Domain," Deo. Dig. (Key No.) § S6; Cent. Dig. § 81. 36 Mercer County v. Wolff, 237 111. 74, 86 N. E. 708; Board of Sup'rs of Norfolk County v. Cox, 98 Va. 270, 36 S. E. 380. See "Eminent Domain," Deo. Dig. (Key No.) § 18; Cent. Dig. § 55. 37 Manning v. Bruce, 186 Mass. 282, 71 N. E. 537. See "Eminent Domain," Dec. Dig. (Key No.) § 18; Cent. Dig. § 55. 3 8 People V. Adirondack Ry. Co., 160 N. Y. 225, 54 N. E. 689; St. Louis- County Court v. Griswold, 58 Mo. 175; Shoemaker v. United States, 147 U. S. 282, 13 Sup. Ct. 361, 37 L. Ed. 170 ; In re Com'rs of Central Park, 50 N. Y. 493 ; Brunn v. Kansas City, 216 Mo. 108, 115 S. W. 446. But the construction' of a pleasure park by a street railway company, at its terminus in the suburbs,, is not a public purpose. Great Falls Power Co. v. Great Falls O. D. R. Co.,. 104 Va. 416, 52 S. E. 172. See "Eminent Domain," Dec. Dig. (Key No.) § 4I; Cent. Dig. § 86. s s Evergreen Cemetery Ass'n of New Haven v. Beecher, 53 Conn. 551, 5 Atl. 353. See "Eminent Domain," Dec. Dig. (Key No.) § 42; Cent. Dig. § 89. io Stratford v. City of Greensboro, 124 N. C. 127, 32 S. E. 394; Mendocino. County V. Peters, 2 Cal. App. 24, 82 Pac. 1122. See "Eminent Domain," Dec. Dig. (Key No.) § 19; Cent. Dig. §§ 56-58. 41 Sadler v. Langham, 34 Ala. 311 ; New England Trout & Salmon Club v. Mather, 68 Vt. 338, 35 Atl. 323,. 33 L. R. A. 569. See Robinson v. Swope, 12' Bush (Ky.) 21; Sherman v. Buick, 32 Cal. 242, 91 Am. Dec. 577. See "Emi- nent Domain," Dec. Dig. (Key No.) § 19; Cent. Dig. § 57. 480 THE EIGHT OF EMINENT DOMAIN. (Ch. 16 Similar principles apply to the taking of private property for general or public ditches and drainage systems and sewers,*^ and for wharves, docks, piers, and levees.*^ So again, irrigation is a public use, and the appropriation of watercourses, to the detriment of riparian owners, for supplying agricultural neighborhoods with water for this purpose is fully justified.** So also is the business of supplying cities and towns with water for general municipal use and for domestic consump- tion,*" and furnishing light to a municipality, whether it be electricity ,or natural or artificial gas ; ** and so also, according to some of the authorities, corporations engaged in manufacturing, generating, sell- ing, and distributing power, whether water power or electrical, serve a public purpose and may exercise the right of eminent domain.*^ Again, *2 Bradbury v. Vandalla Levee & Drainage Dist, 236 111. 36, 86 N. E. 163, 19 L. R. A. (N. S.) 991 ; Sisson v. Board of Sup'rs of Buena Vista County, 128 Iowa, 442, 104 N. "W. 454, 70 L. E. A. 440'; Lewis County v. Gordon, 20 Wash. 80, 54 Pac. .779 ; City of Valparaiso v. Hagen, 153 Ind. 337, 54 N. E. 1062, 48 L. R. A. 707, 74 Am. St. Rep. 305 ; State v. New, 130 N. 0. 731, 41 S. E. 1033 ; Village of Twin Falls v. Stubbs, 15 Idaho, 68, 96 Pac. 195 ; Smith v. Gould, 61 Wis. 31, 20 N. W. 369 ; Patterson v. Baumer, 43 Iowa, 477 ; Zimmerman V. Canfleld, 42 Ohio St. 463. See "Eminent Domain," Dec. Dig. {Key No.) §§ S9-32; Cent. Dig. §§ 5, 76-78. 43 Dyer V. Baltimore (C. C.) 140 Fed. 880; Missouri, K. & T. Ry. Co. v. Cambern, 66 Kan. 365, 71 Pac. 809. See "Eminent Domain," Dec. Dig. (Key No.) §§ 25, 30; Cent. Dig. §§ 5, 7i, 77. 4* Lux V. Haggin, 69 Cal. 255, 10 Pac' 674; Borden v. Trespalacios Rice & Irrigation Co., 204 U. S. 667, 27 Sup. Ct. 785, 51 L. Ed. 671 ; Nash v. Clark, 27 Utah, 158, 75 Pac. 371, 1 L. R. A. (N. S.) 208, 101 Am. St. Rep. 953 ; Lake Koen Navigation, Reservoir & Irrigation Co. v. Klein, 63 Kan. 484, 65 Pac. 684 ; Prescott Irrigation Co. v. Flathers, 20 Wash. 454, 55 Pac. 635 ; Albuquerque Land & Irrigation Co. v. Gutierrez, 10 N. M. 177, 61 Pac. 357. See "Eminent Domain," Dec. Dig. {Key No.) § 29; Cent. Dig. § 76. 4 5 City of Rome v. Whitestown Waterworks Co., 187 N. Y. 542, 80 N. E. 1106 ; Jacobs V. aearview Water Supply Co., 220 Pa. 388, 69 Atl. 870, 21 L. R. A. (N. S.) 410 ; Minnesota Canal & Power Co. v. Pratt, 101 Minn. 197, 112 N. W. 395, 11 L. R. A. (N. S.) 105. But see Bordentown Banking Co. v. Sparhawk, 214 Pa. 334, 63 Atl. 752. See "Eminent Domain," Dec. Dig. {Key No.) § 28; ■Cent. Dig. § 75. 48 In re East Canada Creek Electric Light & Power Co., 49 Misc. Rep. 565, 99 N. Y. Supp. 109 ; In re Niagara, L. & O. Power Co., Ill App. Div. 686, 97 N. Y. Supp. 853 ; Charleston Natural Gas Co. v. Lowe, 52 W. Va. 662, 44 S. E. 410; City of Rushville v. Rushvllle Natural Gas Co., 132 Ind. 575, 28 N. E. 853, 15 L. R. A. 321 ; Walker v. Shasta Power Co., 160 Fed. 856, 87 O. C. A. 660, 19 L. R. A. (N. S.) 725. See "Eminent Domain," Deo. Dig. {Key No.) §§ 34, 65; Cent. Dig. § 80. ' 4 T Rockingham County Light & Power Co. v. Hobbs, 72 N. H. 531, 58 Atl. 46, 66 L. K. A. 581 ; Minnesota Canal & Power Co. v. Koochiching Co., 97 §§ 177-179) THE PURPOSE MUST BE PUBLIC. 481 the question whether a given purpose is public or private may depend on the natural resources of the state, the nature and needs of its chief industries, and the stage of their development, the general rule being that any use is public which tends to enlarge or develop the natural resources and promote the productive power of the whole state or any considerable section or region.*' In this view, the establishment of mills, whether for sawing lumber, grinding grain, or manufactures, may be considered a public purpose.*" So also, where lumbering is an extensive industry, the use of the waterways for this purpose or of lands for chutes, flumes, booms, dams, and the like, may be taken under the power of eminent domain.'" And the same is true of the mining industry in many of the western states."^ Miun. 429, 107 N. W. 405, 5 L. R. A. (N. S.) 638 (right of eminent domain may be exercised by companies supplying electrical iwwer, but contra as to water power) ; Denver Power & Irrigation Co. v. Denver & R. G. R. Co., 30 Colo. 204, 69 Pac. 568, 60 L. R. A. 383; Minnesota Canal & Power Co. v. Pratt, 101 Minn. 197, 112 N. W. 395, 11 L. R. A. (N. S.) 105 ; Wisconsin River Imp. Co. V. Pier, 137 Wis. 325, 118 N. W. 857, 21 L. R. A. (N. S.) 538 ; McMillan v. Noyes (N. H.) 72 Atl. 759. Contra, Brown v. Gerald, 100 Me. 351, 61 Atl. 785, 70 L. R. A. 472, 109 Am. St. Rep. 526 ; State v. White River Power Oo., 39 Wash. 648, 82 Pac. 150, 2 L. R. A. (N. S.) 842; Yadkin River Power Co. v. Whitney Co., 150 N. C. 31, 63 S. E. 188. See "Eminent Domain," Dec. Dig. (Key No.) §§ 28, S5, S7; Cent. Dig. §§ 75, 80, 82. *s Clark v. Nash, 198 U. S. 361, 25 Sup. Ct. 676, 49 L. Ed. 1085; Jacobs v. Clearview Water Supply Co., 220 Pa. 388, 69 Atl. 870, 21 L. R. A. (N. S.) 410. See "Eminent Domain," Dec. Dig. (Key No.) §§ 13, H; Cent. Dig. §§ 51-54. *» Lowell V. City of Boston, 111 Mass. 454, 464, 15 Am. Rep. 39. But see Gaylord v. Sanitary Dist. of Chicago, 204 111. 576, 68 N. E. 522, 63 L. R. A. 582, 98 Am. St. Rep. 235. See "Eminent Domain," Dec. Dig. (Key No.) § 37; Cent. Dig. § 82. 50 MafCett V. Qulne (O. C.) 93 Fed. 347; In re Burns, 155 N. Y. 23, 49 N. E. 246 ; Potlatch Lumber Co. v. Peterson, 12 Idaho, 769, 88 Pac. 426, 118 Am. St. Rep. 233 ; Lancaster v. Kennebec Log Driving Co., 62 Me. 272. See "Eminent Domain," Dec. Dig. (Key No.) §§ 27,, 26; Cent. Dig. §§ 70, 72. . 61 Strickley v. Highland Boy Gold Min. Co., 200 U. S. 527, 26 Sup. Ot. 301, 50 L. Ed. 581 ; Miocene Ditch Co. v. Jacobsen, 146 Fed. 680, 77 C. C. A. 106 ; Byrnes v. Douglass, 83 Fed. 45, 27 C. C. A. 399 ; Hand Gold Min. Co. v. Par- ker, 59 Ga. 419 ; Overman Silver Min. Oo. v. Corcoran, 15 Nev. 147. But see Sutter County v. Nicols, 152 Cal. 688, 93 Pac. 872, 15 L. R. A. (N. S.) 616. See "Eminent Domain," Dec. Dig. (Key No.) § S3; Cent. Dig. § 79. Bl. Const.L. (3d. Ed.)— 31 482 THE RIGHT OF EMINENT DOMAIN, (Ch. 16 WHAT PROPERTY MAY BE TAKEN. « ISO. The property Drhicb may. be taken for public nse nnder tbe potirer of eminent domain includes everything which is the subject of private ownership, recognized by the law, and in the en- joyment of w^hich the possessor is entitled to the protection of the law. It includes — (a) Real estate of private onmers, whether held in fee or by an estate less than the fee. (b) Real property belonging to the state or to tbe United States (subject to certain restrictions). (c) Franchises and other incorporeal rights of property. (d) Easements in realty and the right of possession and enjoyment of the same. (e) Watercourses and streams. (f) Materials needed in the construction of public improvements. Estates and Interests Less than a Fee. In order to constitute "property," in the legal sense of the term, it is not necessary that the person claiming compensation should be the owner in fee simple of the land taken. The owner of an estate for life or years, whether it be vested or contingent, and whether in possession, or reversion or remainder, the owner of a rent or easement affected by the appropriation of the land, a purchaser under an execu- tory contract, and probably even a mortgagee or a judgment creditor, would also be entitled to compensation in proportion to his interest.^'' Property of State and United States. It would appear, at first sight, that there could be no authority in a state to appropriate, under the power of eminent domain, property belonging to the United States, and conversely, that the federal gov- ernment could) not authorize the taking of property belonging to a state. But it is held that, unless the property in question has been already devoted to some public use under the authority of, or in con- nection with, the government of the United States, the state within whose borders the government land lies may authorize its condemna- tion under this power, for a public purpose, such as the construction B2 Dingley v. City of Boston, 100 Mass. 544 ; Harback v. City of Boston, 10 Cusli. (Mass.)' 295; Clear Creek Water Co. v. Gladeville Imp. Co., 107 Va. 278, 58 S. E. 586 ; Hepburn v. Jersey City, 67 N. J. Law, 686, 52 Atl. 1132 ; Mur- phy V. Beard, 138 Ind. 560, 38 N. E. 33 ; Durgin v Minot, 203 Mass. 26, 89 N. E. 144. See "Eminent Domain," Dec. Dig. (Key No.) §§ 81-87, 151-151; Cent, big. §§ 215-232, 403-421. § 180) WHAT PKOFKRTY MAY BE TAKEN. 483 of a railroad/^ And in virtue of the control of the national govern- ment over navigable waters, as well as its power of eminent domain, it may authorize the construction of a bridge or other structure over such waters, and although a particular state may be the owner of the bed under such waters, on which the proposed structure is to rest, the federal government is not obliged to obtain the consent or authority of the state, or to make it any compensation."* Franchises, Contracts, and Personalty. In a number of the states the constitutions provide th^t the right of eminent domain shall never be so construed as to prevent the legis- lature from taking the property or franchises of incorporated com- panies and subjecting them to public use the same as that of indi- viduals. But even without such a provision in the organic law, fran- chises would be subject to this power in common with all other prop- erty within the state. Franchises are property, and there is nothing in their nature to exempt them from the liability to appropriation which attaches to all other property. They may therefore, if the public need requires it, be taken for public use on just compensation made.'^^ A familiar example of the taking of a franchise under the power of eminent domain is where a toll bridge, erected and main- tained by a private corporation, is condemned and converted! into a free county or state bridge. So also the exercise of this power may, in proper circumstances, be extended to the taking of intangible per- 5 3 United States y. Chicago, 7 How. 185, 12 L. Ed. 660; United States v. Bailroad Bridge Co., 6 McLean, 517, Fed. Cas. No. 16,114. The taking of pub- lic property under the power of eminent domain is not countenanced unless under clearly expressed or implied authority. State v. Boone County, 78 Xeb. 271, 110 N. W. 629. Land of which the state is the owner is not to be taken by a corporation chartered by the state. People v. Sanitary Dist. of Chicago, 210 111. 171, 71 N. E. 334. But a lot owned by a city may be condemned and taken for an alley. State v. District Court of Ramsey County, 77 Minn. 248, 79 N. W. 971. See "Eminent Domain," Dec. Dig. (Key No.) § 46; Cent. Dig. §§ 91-d3. B4 Stockton V. Baltimore & N. Y. R. Co., 1 Interst. Com. R. 411. See "Emi- nent Domain," Deo. Dig. (Key No.) §§ SI, 22, 46; Cent. Dig. §§ 67V2, 91-9S. 5 Central Bridge Corp. v. Abbott, 4 Gray (Mass.) 474; Richmond, F. & P. R. Co. V. Louisa K. Co., 13 How. 71, 14 L. Ed. 55 ; Enfield Toll Bridge Co. v. Hartford & N. H. R. Co., 17 Conn. 40, 42 Am. Dec. 716 ; West River Bridge Co. V. Dix, 6 How. 507, 12 L. Ed. 535 ; Commonwealth v. Pennsylvania Canal Co., 66 Pa. 41, 5 Am. Rep. 329 ; State v. SuflSeld & T. Bridge Co., 81 Conn. 56, 70 Atl. 55. See "Eminent Domain," Dec. Dig. (Key No.) §§ 45, 48; Cent. Dig. §§ 102, 103. 484 THE EIGHT OF EMINENT DOMAIN, (Ch. 16 sonal property of various sorts,"' including contracts/^ and even shares of stock in another corporation."* Basements — Possession and Enjoyment. It is not always necessary, in condemnation proceedings, that the corpus of an estate or the title in fee should be taken ; for the power of appropriation extends as well to the taking of an easement, such as a right of way or a profit a prendre.'" Moreover, every man is en- titled by law to the undisturbed and exclusive enjoyment of his estate and to keep out all trespassers. And this right is part of his "prop- erty" in his estate. Consequently, if this exclusive enjoyment of property is taken away, there is a taking of the property, though the title is allowed to remain in the original owner. Moreover, there are certain easements appurtenant to real estate which are necessary to its beneficial enjoyment, and which cannot be impaired without the payment of just compensation to the owner of the estate. Such are the easements of access, light, and air. The construction of a public improvement (such as an elevated steam railroad in the streets of a city) may destroy or materially interfere with these easements, al- though the land itself and the buildings thereon are not taken posses- sion of or injured except in respect to their beneficial use. These ease- ments are "property," and may be thus taken under the power of eminent domain, but only upon the payment of just compensation.^" Streams. Watercourses and streams of running water, which are not navi- gable, may be appropriated under the power of eminent domain, for 5 6 Dunlap v. Toledo, A. A. & G. I. Ky. Co., 50 Mich. 470, 15 N. W. 555. As to professional services of an attorney at law, see Board of Com'rs of Clay County V. McGregor, 171 Ind. 634, 87 N. E. 1. See "Eminent Domain," Dec. Dig. (Key No.) § ^8; Cent. Dig. § 103. or Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 17 Sup. Ct. 718, 41 L. Ed. 1165. See "Eminent Domain," Deo. Dig. (Key No.) § 45. 08 New York, N. H. & H. R. Co. v. Offield, 77 Conn. 417, 59 Atl. 510. See "Eminent Domain," Deo. Dig. (Key No.) § 45; Cent. Dig. § 106. 09 Pacific Postal Telegraph Cable Co. v. Oregon & C. R. Co. (C. C.) 163 Fed. 967 ; Albright v. Sussex County Lake & Park Commission, 68 N. J. Law, 523, 53 Atl. 612 ; McBwan v. Pennsylvania, N. J. & N. Y. R. Co., 72 N. J. Law, 419, 60 Atl. 1130 ; Ray v. New York Bay Extension R. Co., 34 App. Div. 3, 53 N. Y. Supp. 1052; Deavitt v. Washington County, 75 Vt. 156, 53 Atl. 563. See "Eminent Domain," Dec. Dig. (Key No.) § 50; Cent. Dig. § 104. «oLahr v. Metropolitan E. Ry. Co., 104 N. Y. 268, 10 N. B. 528; Drucker v. Manhattan Ry. Co., 106 N. Y. 157, 12 N. E. 568, 60 Am. Rep. 437 ; Gillender § 180) WHAT PROPERTY MAT BE TAKEN. 485 such public purposes as the supplying of water to cities and towns, and the development of irrigation works intended for the benefit of an ex- tensive district or neighborhood. In such cases, compensation must be made to those riparian proprietors who have, at common law, a right to have the stream continue to flow in its accustomed channel, and whose own private use of the water is abridged or interfered with by the taking of the stream for public use.*^ Materials. Such materials as may be needed in the construction of public im- provements come within the class of subjects over which the power of eminent domain may be exercised. Thus, timber, gravel, earth, or stone to be used in making or mending highways, and trees, earth, and gravel used in building a railway, may be appropriated under due legislative authority. And in general, authority may be given to any person or corporation engaged in works of public improvement to enter upon adjoining lands and take therefrom such materials as are needed for the work of construction. °^ Property Already Devoted to Public Use. Property which has already been taken under the power of eminent domain and appropriated to a public use cannot be taken by a second corporation and appropriated to a different public use, unless by stat- utory authority clearly expressed,"^ or implied from the fact that V. City of New York, 127 App. Div. 612, 111 N. Y. Supp. 1051. See "Eminent Domain," Dec. Dig. (Key IS'o.) § 50; Cent. Dig. § lOi. 61 St. Helena Water Co. v. Forbes, 02 Cal. 182, 45 Am. Rep. 659; Smith v. Gould, 59 Wis. 631, 18 N. W. 457 ; Lux v. Haggin, 69 Cal. 255, 10 Pac. 674 ; Erie & J. R. Co. v. Brown, 57 Misc. Rep. 164, 107 N. Y. Supp. 983 ; Albright v. Sussex County Lake and Park Commission, 68 N. J. Law, 523, 53 Atl. 612: Bigelow T. Draper, 6 N. D. 152, 69 N. W. 570 ; State v. Superior Court of Ste- vens County, 46 Wash. 500, 90 Pac. 650. See "Eminent Domain," Dec. Dig. (Key No.) § 45; Cent. Dig. §§ 95, 96. 6 2Wheelock v. Young, 4 Wend. (N. Y.) 647; Posey Tp. of Franklin County V. Senour, 42 Ind. App. 580, 86 N. E. 440 ; Parsons v. Howe, 41 Me. 218 ; Chi- cago, M. & St P. Ry. Oo. V. Mason (S. D.) 122 N. W. 601. See "Eminent Do- main," Dec. Dig. (Key No.) § 51; Cent. Dig. § 105. 03 Elkins Electric R, Co. v. Western Maryland R. Co. (C. C.) 163 Fed. 724 ; Evansville & H. Traction Co. v. Henderson Bridge Co. (C. C.) 134 Fed. 973; Starr Burying Ground Ass'n v. North Lane Cemetery Ass'n, 77 Conn. 83, 58 Atl. 467 ; Gillette v. Aurora Rys. Co., 228 111. 261, 81 N. E. 1005 ; City of Sey- mour V. Jeffersonville, M. & I. R. Co., 126 Ind. 466, 26 N. E. 188 ; Louisville & N. R. Co. V. Louisville (Ky.) 114 S. W. 743 ; In re Philadelphia, M. & S. St. Ry. Co., 203 Pa. 354, 53 Atl. 101 ; Mays v. Seaboard Air Line Ry., 75 S. C. 455, 56 S. E. 30. See Toledo & I. Traction Co. v. Toledo & C. I. R. Co., 171 Ind. 213, 486 THE RIGHT OF EMINENT DOMAIN, (Ch. 16 the second appropriation is absolutely necessary to accomplish the pur- pose for which the claimant corporation was created."* But this rule does not apply where the second use claimed or intended is of such a character that it will not supersede, impair, or unreasonably inter- fere with the continuance of the first use, but both may be enjoyed .concurrently,"' as, for instance, where a telegraph company seeks to condemn a right of way for its line over or along the right of way of a railroad company."" Nor does the rule apply where the property sought to be taken is not in actual use by the original appropriator nor necessary to the proper or convenient exercise, present or prospective, of its franchises or corporate powers."^ Extent of Appropriation. The general rule is that no more property shall be taken under the power of eminent domain, either in respect to quantity or interest, than is needed for the particular purpose. As the power is founded on necessity, so the measure of the public right, in any given case, must be determined by the actual requirements of the public use to which the property is to be put."^ But this does not mean that the property 86 N. E. 54. See "Eminent Domain," Deo. Dig-. (Key 'So.) § 47; Cent. Dig. §§ 8 4 Western Union Tel. Co. v. Pennsylvania E. Co., 123 Fed. 33, 59 C. 0. A. 113 ; Alexandria & F. Ry. Co. v. Alexandria & W. R. Co., 75 Va. 780, 40 Am. Rep. 743. See "Eminent Domain," Doc. Dig. (Key No.) § 47; Cent. Dig. §§ 101-120. 6 5 Birmingham & A. A. R. Co. v. Louisville & N. R. Co., 152 Ala. 422, 44 South. 679; Baltimore & O. S. W. Ry. Co. v. Board of Com'rs of Jackson County, 156 Ind. 260, 58 N. E. 837 ; Louisville & N. R. Co. v. Louisville (Ky.) 114 S. W. 743 ; Northwestern Tel. Exch. Co. v. Chicago, M. & St. P. Ry. Co., 76 Minn. 334, 79 N. W. 315 ; State v. Superior Court for Clarke County, 45 Wash. 316, 88 Pac. 332. See "Eminent Domain," Dec'. Dig. (Key No.) § 47; Cent. Dig. I§ 101-no. 6 6 Pacific Postal Telegraph Cable Co. v. Oregon & C. R. Co. (C. C.) 163 Fed. 967. See "Eminent Domain," Deo. Dig. (Key No.) § 7/7; Cent. Dig. §§ 101, IIJ,, 116. 67 Youghiogheny Bridge Co. v. Pittsburgh & C. R. Co., 201 Pa. 457, 51 Atl. 115 ; 'Wheeling Bridge Co. v. Wheeling & B. Bridge Co., 34 W. Va. 155, 11 S. E. 10D9 ; Scranton Gas & Water Co. v. Delaware, L. & W. R. Co., 225 Pa. 152. 73 Atl. 1C07. iSee "Eminent Domain," Deo. Dig. (Key No.) § 47; Cent. Dig. §§ in, 118. 68 Highland Boy Gold Min. Co. v. Strickley, 116 Fed. 852, 54 C. C. A. 186 ; Piedmont Cotton Mills v. Georgia Ry. & Electric Co., 131 Ga. 129, 62 S. B. 52 ; City of Detroit v. Daly, 68 Mich. 503, 37 N. W. 11 ; Leslie v. City of St. Louis, 47 Mo. 474; Erie R. Co. v. Steward, 170 N. Y. 172, 63 N. E. 118; State v. § 181) APPROPRIATION TO NEW OSES. 487 to be taken must be absolutely necessary or indispensable to the in- tended purpose, but reasonably necessary; the "necessity" spoken of is not an absolute physical necessity, but one created by expediency or reasonable convenience; ^^ and it is said that a corporation having power to condemn land for its uses should be permitted to judge for itself what quantity of land is necessary, subject to the authority of the courts to restrain abuse of the power.'" APPROPRIATION TO NEW USES. 181. When property xrhich. has already heen appropriated to public nse under the pcwer of eminent domain is subsequently ap- propriated, under the same poiver, to a neir and different use, then the original owner, provided an estate less than the fee xras first taken or a. portion of his land less than the -whole, -will be entitled to a new assessment and payment of com- pensation. The reason for this rule is that when a part only of a tract of land is condemned, the amount of compensation to be awarded is deter- mined, in some measure, according to the question whether the re- maining land will be benefited or injured by the use to which the part taken is to be devoted. Now the first use may be of positive advantage to the rest of the property, while the new use may be seriously det- rimental to it. At any rate, if there is any important difference in the two uses, this will of itself introduce new elements which should be taken into consideration in arriving at a just estimate of the dam- ages to be paid. The owner is therefore constitutionally entitled to a fresh appraisement of the injuries which he sustains, in view of the new conditions and their effect upon his estate. In cases where the whole tract was affected by the first condemnation, but it extended only to the taking of an estate less than a fee, the same principle applies, but for a different reason. It is now important to inquire whether the Superior Court, Spokane County, 47 Wash. 310, 91 Pac. 968; Samish River Boom Co. V. Union Boom Co., 32 Wash. 586, 73 Pac. 670. See "Eminent Do- main," Dec. Dig. (Key No.) § 58; Cent. Dig. §§ W-IGO. 6 9 Piedmont Cotton Mills v. Georgia Ry. & Electric Co., 131 Ga. 129, 62 S. E. 52 ; Sayre v. Orange (N. J. Sup.) 67 Atl. 933 ; Aurora & G. Ry. Co. v. Har- vey, 178 111. 477, 53 N. E. 331 ; In re Curran, 38 App. Div. 82, 55 N. Y. Supp. 1018. See "Eminent Domain," Dec. Dig. (Key No.) § 58; Cent. Dig. §§ U7-160. TO United States v. Baltimore & O. R. Co., 27 App. D. C. 105. See "Emi- nent Domain," Dec. Dig. (Key No.) §§ '58, 68; Cent. Dig. §§ W-160, 168-170. 488 THE EIGHT OF EMINENT DOMAIN. (Ch. 16 * owner's right of reverter, in case of the discontinuance of the pubHc use, will be affected by the new appropriation." Questions of this sort chiefly arise in connection with the construc- tion of improvements in the public streets and highways. At first, the courts were disposed to make the right of an abutting property owner to recover damages upon the appropriation of the street to a new or different use depend upon the question whether the fee of the soil under the street was vested in him or in the municipality. But the later tendency is to disregard this distinction. The now generally prevalent doctrine is that the abutting owner, whether or not he owns the fee of the street, has certain peculiar rights and privileges therein which will entitle him to compensation if the street is diverted from its original use or is cumbered with new works which materially inter- fere with, or diminish the value of, those rights.'^ Notwithstanding some difference of opinion, it is now apparently settled that the appropriation of a public highway for the purposes of a plank road or turnpike is not a devotion of it to such a new use as will require a new assessment and payment of damages to abutting owners. And conversely, turning a turnpike road into a free and common public highway is not appropriating, any new easement so as to entitle the. owners of the fee to fresh compensation.''' And the same is true of the laying of gas pipes in a county highway.''* Nor is any additional servitude imposed by the appropriation of a public highway for the use of a line of electric telegraph, by the erection of poles and wires above the surface of the ground; and a statute au- thorizing such appropriation is not unconstitutional because it makes no provision for compensation to the owners of the fee in the high- way.'"' Also it is held that a street railway, where the motive power employed is horses or electric motors, constructed under legislative authority on the surface of a street, is not an unlawful interference 71 State V. Superior Court of King County, 46 Wash. 516, 90 Pae. 663. See "Eminent Domain," Deo. Dig. (Key No.) §§ 20, J,5, Jft, Ji9. 7 2 White V. Northwestern North Carolina R. Co., 113 N. C. 610, 18 S. B. 330, 22 L. R, A. 627, 37 Am. St Rep. 639. See "Eminent Domain," Deo. Dig. (Key No.) §§ 117-120; Cent. Dig. §§ 303-319. 7 3 State V. Maine, 27 Conn. 641, 71 Am. Dec. 89. See "Eminent Domain," Dec. Dig. (Key No.) § 119; "Turnpilces and Toll Roads," Cent. Dig. §§ 20, 85. 7 4 Bloomfield & R. Natural Gaslight Co. v. Calkins, 62 N. Y. 386. See "Emi- nent Domain," Dec. Dig. (Key No.) § 119; Cent. Dig. § SIS. 7 6 Pierce v. Drew, 136 Mass. 75, 49 Am. Rep. 7. See "Eminent Domain," Dec. Dig. (Key No.) § 119; Cent. Dig. § 312. § 182) THE TAKING. 489 with the rights of the abutting owner, but is a street use consistent with such rights, so that it will not entitle him to a new assessment and payment of damages.'* But if a highway is appropriated to the use of a steam railroad, or a street in a city to the use of such a road (and more especially an elevated road), it is held that this is not a legitimate use for street purposes, but the conditions are so essentially different from those attending the first appropriation, which merely gave a public right of passage, as to entitle the abutting owners to compensation to the extent to which their property is injured or de- preciated by the new use of the street.' ' When a railroad has been constructed in a street, and an abutting property owner has recovered damages therefor, this will not prevent him from claiming further damages when another railroad seeks to buildl another track in the same street.'* THE TAKING. 182. In order to constitute a "taking" of property under the poirer of eminent domain, it is not necessary that the property should be destroyed, or that the owner should be entirely deprived or disseised of the estate. It is sufficient to entitle him to claim compensation if the ivork or improvement for xrhich this poiv- er is exercised deprives him of the ordinary, necessary, and beneficial use of the property, or if its value, for such uses and purposes, is directly and necessarily diminished by th& work in question. 79 76 Mahady v. Bush wick R. Co., 91 N. T. 148, 43 Am. Rep. 661 ; Hiss v. Bal- timore & H. Pass. Ry. Co., 52 Md. 242, 36 Am. Rep. 371 ; Attorney General v. Metropolitan R. Co., 125 Mass. 515, 28 Am. Rep. 264 ; People v. Ft. Wayne & E. Ry. Co., 92 Mich. 522, 52 N. W. 1010, 16 L. R. A. 752. And see Cleveland, C, C. & St. L. R. Co. V. Feight, 41 Ind. App. 416, 84 N. E. 15. See "Eminent Domain," Dec. Dig. (Key No.) § 119; Cent. Dig. §§ 305-307. 7 7 Story V. El. R. Co., 90 N. Y. 122, 43 Am. Rep. 146; White v. Northwest- ern North Carolina R. Co., 113 N. C. 610, 18 S. E. 330, 22 L. R. A. 627, 37 Am. St. Rep. 639 ; Stewart v. Ohio River R. Co., 38 W. Va. 438, 18 S. B. 604 ; Crawford v. Village of Delaware, 7 Ohio St. 459; Lawrence R. Co. v. Wil- liams, 35 Ohio St. 168 ; Lentell v. Boston & W. St. Ry. Co., 202 Mass. 115, 88 .N. E. 765. See "Eminent Domain," Dec. Dig. (Key No.) § 119; Cent. Dig. §§ 310, 311. 7 8 Southern Pac. R. Co. v. Reed, 41 Cal. 256. See "Eminent Domain," Dec. Dig. (Key No.) § 120; Cent. Dig. § 319. 7 8 People V. Murphy, 129 App. Div. 260, 113 N. X. Supp. 855; Hooker v. New Haven & N. Co., 14 Conn. 146, 36 Am. Dec. 477; Martin v. Fillmore Coun- ty, 44 Neb. 719, 62 N. W. 863 ; Griffln v. Shreveport & A. R. Co., 41 La. Ann. 490 THE RIGHT OF EMINENT DOMAIN. CCh. 16 If the rates or charges to be made by a railroad or a public-service corporation, and which may be regulated by law, are reduced by a statute or ordinance to a figure so low as to compel the company to carry on its business at a loss or without fair profit, then its property is "taken" for public use without just compensation. «» Or to take an example of a more directly physical invasion of property, if the con- struction of a railroad along or across a stream, or any work under- taken for the improvement of navigation, has the effect of causing the waters to' flood the lands of an adjacent owner and destroy or impair their value, it is a "taking" of his property, and the legislature cannot authorize the infliction of such an injury without making provision for compensation.*^ So, also, the diversion of a stream, when the effect 808, 6 South. 624 ; Stockdale v. Rio Grande Western R. Co., 28 Utah, 201, T7 Pac. 849 ; Peabody v. United States, 43 Ct. CI. 5. A law which empowers cities to forbid the use for any business purposes of property fronting on avenues or boulevards deprives the owners of such property of their right to the en- joyment thereof, and is Invalid as a "taking" of their property without com- pensation. City of St. Louis v. Dorr, 145 Mo. 466, 41 S. W. 1094, 42 L. R. A. 686, 68 Am. St. Rep. 575. So a statute or ordinance forbidding the erection of signs or bill-boards on private property in a rfty, without regard to whether they are dangerous, is invalid as appropriating private property to public use without compensation. Bill Posting Sign Co. v. Atlantic City, 71 N. J. Law, 72, 58 Atl. 342; Commonwealth v. Boston Advertising Co., 188 Mass. 348, 74 N. E. 601, 69 L. R. A. 817, 108 Am. St. Rep, 494 ; Varney & Green v. Williams (Cal.) 100 Pac. 867, 21 L. R. A. (N. S.) 741. But see Lincoln v. 'Commonwealth, 164 Mass. 368, 41 N. E. 489, where It Is said that if the legislature authorizes something to be done in the neighborhood of a person's land, which diminishes Its value, but which would not be actionable at common law If done by a neigh- boring owner, and If the statute provides no compensation, the owner of the land cannot claim any under the constitution, because what is done does not amount to a taking ; and even if the thing authorized would be actionable at common law, and a nuisance but for the statute, still it Is not necessarily a taking. See "Eminent Domain," Dec. Dig. (Key No.) §§ 2, 96, 1S5-13S; Cent. Dig. §§ S-n, W, 363-310. 8 Matthews v. Board of Corp. Com'rs of North Carolina (C. C.) 106 Fed. 7; Spring Valley Waterworks v. San Francisco (C. C.) 124 Fed. 574; WlUcox v. Consolidated Gas Co., 212 U. S. 19, 29 Sup. Ct. 192, 53 L. Ed. 382. See "Eminent Domain," Dec. Dig. {Key No.) §§ 2, 69; Cent. Dig. §§ 3-12, 111-n9. 81 Eaton V. Boston, C. & M. R. R., 51 N. H. 504, 12 Am. Rep. 147. See, also, Smith v. Gould, 61 Wis. 31, 20 N. W. 369 ; Pumpelly v. Green Bay & M. Canal Co., 13 Wall. 166, 20 L. Ed. 557 ; Woodruff v. North Bloomfield Gravel Mining Co. (C. C.) 18 Fed. 753 ; Williams v. United States (C. C.) 104 Fed. 50. see "Eminent Domain," Dec. Dig. (Key No.) §§ 95, 98 j Cent. Dig. §§ 239, 255; "Waters and Water Courses," Cent. Dig. § 218. § 182) THE TAKING. 491 is to injure the property of a private owner, by destroying his water power or depriving him of his riparian rights, is a taking of his prop- erty under the power of eminent domain.'^ So again, it is held that the construction of a pubhc improvement (such as an elevated rail- road in a city) which has the effect to charge the air with smoke, gases, cinders, etc., and thus to interfere with the easement, belonging to each abutting landowner, to the passage of pure air, or which im- pairs his easement of light, either by reason of the structure itself or by the passage of trains upon it, or which diminishes the value of the property by impairing its capacity for quiet enjoyment, by reason of the noise, vibration, and confusion caused by the ordinary use of it, so directly and seriously affects the value of adjoining property as to entitle the owner to claim damages, although there has been no physical taking of his property. ^^ And again, a necessary part of the beneficial use of private property consists in the free right of access to a street, highway, or navigable stream on which it may abut. And where the effect and consequence of improvements or public works constructed by a municipal or private corporation are to deprive a property owner of the means of access to his premises, — as, where a railroad laid in the street shuts off the means of ingress and egress, or where public works constructed along the edge of a navigable river or lake prevent riparian proprietors from having free access to the water, — there is such an invasion of the owner's property rights (though no portion of his land may be actually taken) that compensa- tion must be made to him.** The right of the owner of a city lot 8 2 Harding v'. Stamford Water Co., 41 Conn. 87; Pettigrew r. Village of Evansville, 25 Wis. 223, 3 Am. Rep. 50 ; Bryant v. Pittsfield, 199 Mass. 530, 85 N. B. 739 ; Hartman v. Tresise,, 36 Colo. 146, 84 Pac. 685, 4 L. R. A. (N. S.) 873. And this rule applies as well to navigable as to private streams. Even where the object of the diversion is to create a new and better channel, yet, if the result is to deprive the riparian owner of the benefit of the use of the stream, it is a taking for which compensation must be made to him. People V. Canal Appraisers, 13 Wend. (N. Y.) 355. See "Eminent Domain," Dec. Dig. (Key No.) § 69; Cent. Dig. § ni. 83 Lahr V. Metropolitan E. Ry. Co., 104 N. Y. 268, 10 N. E. 528; Drucker v. Manhattan Ry. Co., 106 N. Y. 157, 12 N. E. 568, 60 Am. Rep. 437 ; New York El. R. Co. V. Fifth Nat. Bank, 135 U. S. 432, 10 Sup. Ct. 743, 34 L. Ed. 231 ; Adams v. Chicago, B. & N. R. Co., 39 Minn. 286, 39 N. W. 629, 1 L. R. A. 493, 12 Am. St. Rep. 644; Jeffersonville, M. & I. B. Co. v. Esterle, 13 Bush (Ky.) 667. See "Eminent Domain," Dec. Dig. (Key No.) §§ 104, 105; Cent. Dig. §§ 27S-2S9. 84 Rumsey v. New York & N. E. R. Co., 133 N. Y. 79, 30 N. E. 654, 15 L. R. ^. 618, 28 Am. St. Rep. 60O; City of Pekin v. Brereton, 67 111. 477, 16 Am. Rep. 492 THE EIGHT OF EMINENT DOMAIN. (Ch. 16 abutting upon a street to use the street is as much property, it is said, as the lot itself, and the legislature has as little power to take away the one as the other; hence it cannot authorize the vacation of the street without providing compensation for such owners.* ° When the state has granted a right or franchise for business purposes (such as the right to maintain a toll bridge, a ferry, and the like) and the grant was by its express terms exclusive, the subsequent grant of a fran- chise of the same kind, the use of which will compete with the first and diminish its profitableness, amounts to a taking of the former franchise, within the meaning of the constitution.^' It is also held in some states (though not in all) that if a railroad is constructed in close proximity to a man's house, and there is consequently a real, imminent, and constant danger of its being set on fire by the passing locomotives, and thereby its value, either for purposes of residence, business, or sale, is greatly diminished, such injurious effect upon the value of the property will found a claim for compensation.'^ And where one railroad company is authorized by statute to run its cars over the tracks of another, this is a taking for which compensation must be made.*' 629 ; Elgney y. City of Chicago, 102 111. 64 ; Chicago & W. I. R. Co. v. Ayres, 106 III. 511 ; Johnston v. Old Colony R. Co., 18 R. I. 642, 29 Atl. 594, 49 Am. St. Rep. 800 ; Philadelphia & R. R. Co. v. Patent (Pa.) 5 Atl. 747 ; Delaplaine V. Chicago & N. W. R. Co., 42 Wis. 214, 24 Am. Rep. 386 ; Chapman v. Osh- liosh & M. R. R. Co., 33 Wis. 629. See "Eminent Domain," Dec. Dig. (Key No.) §§ 99, 106; Cent. Dig. §§ 282-290. ssHaynes v. Thomas, 7 Ind. 38; Pearsall v. Board of Sup'rs of Eaton County, 74 Mich. 558, 42 X. W. 77, 4 L. R. A. 193. But compare Levee Dist. No. 9 V. Farmer, 101 Cal. 178, 85 Pae. 569, 23 L. R, A. 388. See "Eminent Do- main," Dec. Dig. (Key No.) § 100; Cent. Dig. § 267. 8 6 Proprietors of PIscataqua Bridge v. New Hampshire Bridge, 7 N. H. 35; Central Bridge Corp. v. City of Lowell, 4 Gray (Mass.) 474. And see Louis- ville & N. R. Co. V. Interstate R. Co., 108 Va. 502. 62 S. B. 369. See "Eminent Domain," Dec. Dig. {Key No.) §§ Ji8, 86, 108; Cent. Dig. §§ 103, 231, 292, 293. 8 7 See Swinney v. Ft. Wayne, M. & C. R. Co., 59 Ind. 205; St. Louis, Ft. S. & W. R. Co. V. McAulifC, 43 Kan. 185, 23 Pac. 102 ; Ft. Worth & R. G. Ry. Co. V. Downie, 82 Tex. 383, 17 S. W. 620 ; Pierce v. Worcester & N. R. Co., 105 Mass. 199 ; Wilmington & R. E. Co. v. StaufCer, 60 Pa. 374, 100 Am. Dec. 574 ; Lafayette, M. & B. R. Co. v. Murdo'ck, 68 Ind. 137. See "Eminent Domain," Dec. Dig. (Key No.) § 111; Cent. Dig. §§ 29i, 298. 68 Metropolitan R. Co. v. Quincy R. Co., 12 Allen (Mass.) 262 ; Sixth Ave. R. Co. V. Kerr, 45 Barb. (N. X.) 138. iSee "Eminent Domain," Dec, Dig. {Key No.). § it; Cent. Dig. § 111. § 183) CONSEQUENTIAL INJURIES. 493 CONSEQtTENTIAI. INJURIES. 183. Unless a different rule is prescribed by constitution or statute in the particular state, the owner of property is not entitled to claim, damages in respect of any merely incidental, indirect, or consequential injuries which his property may sustain by reason of a public work or construction, where the same is justified by a lawful exercise of the powers of goTemment, and there is no actual appropriation of any property or right to which he has a legal claim. If the injury to property is merely incidental or indirect, or affects the property only as it affects all other property similarly situated, there can be no just claim to compensation, and, if property is actually appropriated under the power of eminent domain, the computation of damages must not include merely consequential or indirect in- juries.*® Thus, for instance, the privilege of maintaining a toll bridge, previously granted by statute, may be seriously impaired by a subse- quent grant to another of a franchise to maintain another bridge near the first. Or the value of a dam may be destroyed by the construction of a canal, or that of a turnpike by the construction of a railroad. But in these cases, if the first grant was not in terms exclusive, so that there is no question of a contract which must not be impaired, the det- riment which the first work will sustain in consequence of the construc- tion of the second does not amount to such a taking of it as v^^ill re- quire compensation to be made; it is merely the loss which any one may expect to suffer from successful competition. '^ It is also a general principle that a municipal corporation making an improvement solely for the benefit of the public, under ample au- thority granted by the legislature, and performing the work in a cir- cumspect and careful manner, and with no lack of care and reasonable skill, is not answerable for consequential damages produced thereby 8 9 Stewart v. Village of Rutland, 58 Vt. 12, 4 Atl. 420; Bedford v. United States, 36 Ct. CI. 474 (affirmed 192 U. S. 217, 24 Sup. Ot. 238, 48 L. Ed. 414) ; Frazer v. Chicago, 186 III. 480, 57 N. E. 1055, 51 L. R. A. 306, 78 Am. St. Rep. 296 ; Bigham v. Port Arthur Channel & Dock Co., 100 Tex. 192, 97 S. W. 686, 13 Ia R. a. (N. S.) 656. See "Eminent Domain," Dec. Dig. (Key No.) § 93; Cent. big. §§ S'SI-SSS. 90 White River Turnpike Co. v. Vermont Cent. R. Co., 21 Vt. 590; Enfleld Toll-Bridge Co.*' v. Hartford & N. H. R. Co., 17 Conn. 454, 44 Am. Dec. 556 ; Dyer v. Tuskaloosa Bridge Co., 2 Port. (Ala.) 296, 27 Am. Dec. 655. 8ee "Emi- nent Domain," Deo. Dig. (.Key No.) § 108; Cent. Dig. i 293. 494 THE EIGHT OF EMINENT DOMAIN, (Ch. 16 to property in the vicinity of such improvement, no part of which is taken or used therefor, although the same act, if done without legis- lative sanction, would be actionable.*^ It is a question whether the same rule is applicable in the case of a private corporation, making such an improvement primarily for its own advantage and benefit. In some of the states it is held that such a corporation is liable for all damages which would not be too speculative or remote to be recovered in an action against a natural person.'^ But in New York the doctrine prevails that, equally in the case of a private corporation as in that of a municipal corporation, an act done under the authority of law, if done in a proper manner, will not subject the party doing it to an ac- tion for the consequences, whatever they may be, if the law does not provide for compensation for injuries of that character."^ To take another illustration, the value of private property may be seriously affected by a change of the grade of a city street on which the prop- erty abuts. But this is not a "taking" of the property, and the owner will not be entitled to claim compensation, unless, as is sometimes the case, the statute should make provision for it.°* But in many of the states it has been felt that the doctrine of con- sequential injuries left the owner of property without redress in many instances where he had been substantially damnified for the public good, and where-, on just principles, compensation ought to be pro- vided for him. In these states, therefore, the constitutional provisions on the subject have been made broader than the type which we have 01 Alexander v. City of Milwaukee, 16 Wis. 247 ; Mayor, etc., of Cumberlfind V. Willison, 50 Md. 138, 33 Am. Rep. 304 ; Northern Transp. Co. v. Chicago, 99 U. S. 635, 25 L. Ed. 336. See "Eminent Domain," Dec. Dig. {Key No.) § 112; Cent. Dig. § 299. 9 2 Alexander v. City of Milwaukee, 16 Wis. 247 ; Tinsman v. Belvidere Dela- ware R. Co., 26 N. J. Law, 148, 69 Am. Bee. 565. See "Eminent Domain," Dec Dig. (Key No.) §§ 91, 93, 112; Cent. Dig. §§ 23J,, 236, 299. 9 3Radcliffs Ex'rs v. Mayor, etc., of Brooklyn, 4 N. T. 195, 53 Am. Dec. 357 ; Bellinger v. New York Cent. R. Co., 23 N. Y. 42 ; Selden v. Delaware & H. Canal Co., 29 N. T. 634. And see Benner v. Atlantic Dredging Co., 134 N. Y. 156, 31 N. E. 328, 17 L. R. A. 220, 30 Am. St. Rep. 649. See "Eminent Domain," Dec. Dig. {Key No.) § 23; Cent. Dig. § 69. 9 4 See Mayor, etc., of Cumberland v. Willison, 50 Md. 138, 33 Am. Rep. 304;. In re Furman St., 17 Wend. (N. Y.) 649 ; Johnson v. Parkersburg, 16 W. Va. 402, 27 Am. Rep. 779; Warner v. State, 132 App. Div. 611, 117 N. Y. Supp. 108. Compare Crawford v. Village of Delaware, 7 Ohio St. 459; Sievers v. Root, 10 Cal. App. 337, 101 Pac. 925. See. "Eminent Domain," Dec. Dig. {Key, No.) §§ 2, 101; Cent. Dig. §§ 3-12,269, 210. § 184) COMPENSATION. 495 thus far considered. They are so expressed as to entitle the owner of property to just compensation in all cases where his property is "taken or damaged" for the public use. Where a constitution contains this wider formula, it is held that a recovery may be had in all cases where private property has sustained a substantial injury from the making and use of an improvement which is public in its nature, whether the damage be direct, as when caused by trespass or physical invasion of the property, or consequential, as in a diminution of its market value."' COMPENSATION. 184. The constitutional provisions for the protection of private prop- erty, \rheu the po-wer of eminent domain is to be exercised, re- quire that just compensation shall be paid to the owner. This requirement includes — (a) The assessment of the amount of the damages — (1) By a fair and impartial tribunal, not necessarily a jury. (2) In a manner conforming to the directions of the con- stitution or statute. (3) At the fair and just value of the property tahen, or the fair and just measure of its depreciation in consequence of the urork or improvement in question, allo^ving for direct benefits to other property of the same owner ac- cruing therefrom, when u, part only of a tract is taken, and also for corresponding injuries. (b) The prepayment of the damages, at least where the appropria- tion is made by a private corporation. (c) The payment of the damages in money. The Tribunal for the Assessment of Damages. The legislature, in exercising the power of eminent domain, cannot in the law itself fix the amount of compensation to be paid to the prop- erty owner. Such compensation, in case of disagreement between the parties, must be ascertained and awarded by a fair and impartial tri- bunal.'* "While the legislature is the judge of the necessity or ex- 5 City of Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 U Ed. 638. And see City of Chicago v. Pulcyn, 129 111. App. 179. The reader will find an instructive case as to the difference between a constitutional provision author- izing compensation for property "taken" for public use, and one authorizing compensation for property "taken or damaged," in Rigney v. City of Chicago, 102 111. 64. See "Eminent Domain," Dec. Dig. {Key No.) § 69; Cent. Dig. §§ m, in. 9 6 Pennsylvania R. Co. in Maryland v. Baltimore & 0. R. Co., GO Md. 263. But, where private property has been taken or damaged by the state, it is 496 THE EIGHT OP EMINENT DOMAIN. (Ch. 16 pediency of the exercise of the power of eminent domain, it is not the judge of the amount or justness of the compensation to be made when the power is exercised." And therefore, "when the constitution pre- scribes no particular mode in which the compensation shall be ascer- tained, it would seem to follow that, as to the question of the amount of compensation, the owner of land taken for pubHc use has a right to require that an impartial tribunal be provided for its determination, and that the government is bound in such cases to provide such tribu- nal, before which both parties may meet and discuss their claims on equal terms." "'' But proceedings for an asesssment of damages upon an exercise of the power of eminent domain are not controversies of that nature which is contemplated by the constitutional provisions se- curing the right of trial by jury in civil issues. Consequently the owner of property thus taken has no constitutional right to demand that his compensation shall be assessed by a jury, unless there is a specific provision to that effect in the state constitution.'* The customary method is to provide for the appointment of a certain number of ap- praisers or commissioners (sometimes called "viewers") who are to determine the matter at issue according to their own judgment and the evidence which shall be adduced before them in relation to the value of the property or the extent of the injuries to it. These viewers, having duties to perform which are analogous to those of a jury, must be free from all legal disqualifications or disabilities and from all in- terest in the matter at issue, all relationship to the party, and all posi- tive bias. They must strictly comply with the statute in regard to tak- ing the oath and all other matters of substance. Method of Assessing Damages. In regard to the method and course of proceedings, on the assess- ment of damages, it may be remarked, as a general rule, that all such competent for the legislature to agree with the owner as to the amount of the damage, if that can be done, and make an appropriation for its payment. In re Constitutionality of Substitute for Senate Bill No. 83, 21 Colo. 69, 39 Pac. 1088. See "Eminent Domain," Dec. Dig. (Key No.) §§ 207, 209; Gent. Dig. §§ 545SJf8. B^ Langford V. Ramsey County Com'rs, 16 Minn. 375 (Gil. 333). Bee "Emi- nent Domain," Dec. Dig. (Key No.) § 207; Cent. Dig. § 545. 9 8 Pennsylvania R. Co. v. First German Lutheran Congregation of Pitts- burgh, 53 Pa. 445; Livingston v. Mayor, etc., of New York, 8 Wend. (N. Y.) 85, 22 Am. Dec. 622 ; Butler v. City of Worcester, 112 Mass. 541 ; Backus v. Lebanon, 11 N. H. 19, 35 Am. Dec. 466. See "Eminent Domam," Dec. Dig. (.Key No.) § 209; Cent. Dig. § 5i8. § 184) COMPENSATION. 497 provisions of the constitution or the statute as are intended for the protection and advantage of the individual are to be strictly followed. He is to have every opportunity of contesting the proceedings, step by step, and of asserting and making good his claims to adequate com- pensation. For instance, the owner is entitled to due notice of the time and place at which the assessors will proceed to make their valuation, and he must be afforded an opportunity to be present, and if he at- tends he has a right to be heard and to present proper and pertinent evidence. If his rights, in any of these particulars, are abridged or denied, the proceedings will not be valid.** The award also should be in due form and executed and filed according as the law directs. Measure of Compensation. The rules for ascertaining the amount of compensation to be paid to the owner of property taken under the power of eminent domain are subject to some variations, depending on the circumstances of the particular case. But the general principles are always the same. And these may be arranged in three classes, according as the appro- priation is of the whole of the tract or other property, or of only a portion thereof, or consists in injury and damage to the property with- out a physical taking of it. In the first place, if the state or corporation takes the whole of a tract of land, or the franchise and plant of a corporation, or any other entire piece of property, the owner is entitled to receive the entire market value of the property. The market 'value is not the mere amount which thei property has cost the owner; it may be much greater. Neither does it mean the amount which the property would bring at a forced sale, but what it would bring in the hands of a prudent seller at liberty to fix the time and the conditions of the sale.^"* If the property taken consists in the franchise and plant of a corpora- tion, the market value is not to be ascertained by the par value of the stock or the cost of the improvements, but it is measured by the actual selling value of the entire capital stock. If the property has been im- proved and prepared for the carrying on of a particular business, and has a special value for the purposes of that business only, so that the business in fact increases the value of the property, this fact should be 99 Powers' Appeal, 29 Mich. 504; Hood v. Finch, 8 Wis. 381. See "Emi- nent Domain," Dec. Dig. (Key No.) § 167; Cent. Dig. § 452. 100 Everett v. Union Pac. R. Co., 59 Iowa, 243, 13 N. W. 109; Doughty v. Somerville & E. R. Co., 22 N. J. Law, 495. See "Eminent DomaAn," Deo.' Dig. (Key No.) § 131; Cent. Dig. § 353. Bl.Const.L.(3d.Bd.)— 32 498 THE EIGHT OP EMINENT DOMAIN. (Ch. 16 considered in computing the damages, though it should not alone gov- ern."^ And conversely, the fact that the property has not in fact been appropriated to any beneficial use will not necessarily prove that it has no value. "The inquiry must be, what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time appHed, but with reference to the uses to which it is .plainly adapted, that is to say, what is it worth from its availability for valuable uses?" ^"^ But on the other hand, the owner is not en- titled to claim compensation for any damage which is merely remote, conjectural, or speculative.^o^ Nor is he entitled to be compensated for any value, in excess of the market value, which the property may have in his eyes alone, arising from sentiment, association, or personal predilection. Such matters are not susceptible of pecuniary estimation, and do not properly enter into the computation. There is some un- certainty, on the authorities, as to the time at which the value to be put on the property is to become fixed. It may be either at the time of the commencement of the proceedings, or at the time of entry upon the property, or at the time of the view and appraisement. But at any rate, the value to be paid is that which the property bears at or before the completion of the condemnation proceedings, not that enhanced value which might afterwards attach to it in consequence of the uses to which it is to be put by the appropriator. In the second place, if the appropriation extends only to a part of an entire tract belonging to the same owner, the amount of compensa- tion is not to be measured solely by the market vajue of that which is taken. Here it will also be necessary to take into account the effect of the public work or improvement on the remaining portion of the estate. This effect may be either beneficial or injurious. In the first event, the increase of value accruing to the remainder of the estate 101 King V. Minneapolis Union Ry. Co., 32 Minn. 224, 20 N. W. 135 ; Chicago & B. R. Co. V. Jacobs, 110 111. 414 ; Little Rock & Ft. S. R. Co. v. McGehee, 41 Ark. 202. But where land is taken, future profits from the business carried on there, and which is stopped or Interfered with by the appropriation, are too conjectural, speculative, and uncertain to form any basis for determining the market value of the property. Jacksonville & S. E. Ry. Co. v. "Walsh, 106 111. 253 ; Chicago & E. R. Co. v. Dresel, 110 111. 80. See "Eminent Domain," Deo. Dig. (Key Vo.) § ISlf, Cent. Dip. § S56. 102 Mississippi & R. River Boom Co. v. Patterson, 98 U. S. 403, 25 L. Eid. 206; In re Simmons, 195 N. T. 573, 88 N. E. 1132. See "Em-inent Domain," Dec. Dig. (Key No.) § 13i; Cent. Dig. § S56. 103 Fremont, E. & M. V. R. Co. v. Whalen, 11 Neb. 585, 10 N. "W. 491. See "Eminent Domain," Dec. Dig. (Key No.) §§ 9S, 1S6; Cent. Dig. §§ 237-23S, 36S. g 184) COMPENSATION. 499 . is to be deducted from the amount to be awarded. In the second case, the compensation must be large enough to cover the depreciation of the balance of the tract.^"* For example, where a railroad company condemns and appropriates a right of way across a farm or other tract of land, the true measure of compensation to the owner is the differ^ ence between what the whole property would have sold for, unaffected by the railroad, and what it would sell for as affected by it, if it would sell for less. The damages must be for an actual diminution of the market value of the land.^"" In such a case the design of the law is to compensate the owner fully for all the injury he may sustain by reason of the appropriation of his land for railroad purposes, and which shall grow out of or be occasioned by the location and use of the road.^"* Consequently, it is proper for the jury or appraisers to take into consideration, in assessing the damages to be awarded in such a case, the danger and inconvenience of crossing the road from one part of the land to another,^"^ the danger to the owner's cattle of being killed on the railroad, the additional inconvenience and expense en- tailed upon the owner in the cultivation and management of his re- maining land, thus cut in two by the road,^"* the expense of fencing along the road where it passes through fields,^"" and the danger from fire to the buildings, fences, timber, and crops on the remaining 104 First Church In Boston v. City of Boston, 14 Gray (Mass.) 214 ; Edmands V. City of Boston, 108 Mass. 535; Baltimore & O. R. Co. v. Pittsburg, W. & K. R. Co., It W. Va. 812 ; Driver v. Western Union R. Co., 32 Wis. 569, 14 Am, Kep. 726 ; Welch v. Milwaukee & St. P. Ry. Co., 27 Wis. 108 ; Parks v. Wis- consin Cent. R. Co., 33 Wis. 413; Robbing v. Milwaukee & H. R. Co., 6 Wis. 636 ; Bigelow v. West Wisconsin Ry. Co., 27 Wis. 478 ; White v. Charlotte & S. C. R. Co., 6 Rich. Law (S. C.) 47 ; Tyler v. Hudson, 147 Mass. 609, 18 N. E. 582. See "Eminent Domain," Dec. Dig. (Key No.) §§ 113, 1S9-142, 1U-U6; Cent. Dig. §§ 236, 2J,3, 311-389. 105 Page V. Chicago, M. & St. P. Ry. Co., 70 111. 321. See "Emitient Domain," Deo. Dig. (Key No.) § 136; Cent. Dig. § S6i. loe St. Louis & S. E. Ry. Co. v. Teters, 68 111. 144. See "Eminent Domain," Dec. Dig. [Key No.) §§ 9^-113, 135-U2; Cent. Dig. §§ 236-300, S6S-Sn. 107 Doughty V. Somerville & E. R. Co., 22 N. J. Law, 495; St. Louis & S. E. Ry. Co. v. Teters, 68 111. 144 ; Keithsburg & E. R. Co. v. Henry, 79 111. 200. See "Eminent Domain," Dec. Dig. (Key No.) § 109; Cent. Dig. §§ 294, 295. ' 108 Tucker v. Massachusetts Cent. R. Co., 118 Mass. 546; McReynolds v. Burlington & 0. R. Ry. Co., 106 111. 152 ; Doughty v. Somerville & E. R. Co., 22 N. J. Law, 495. See "Eminent Domain," Deo. Dig. {Key No.) §§ 102, llff; Cent. Dig. §§ 271, 212, 294, 296, 291. 109 Greenville & C. B- Co. v. Partlow, 5 Rich. Law (S. C.) 428; Robbing v. Milwaukee & H. R. Co., 6 Wis. 636; Reg. v. Committee Men for South Hoi- 500 THE EIGHT OF EMINENT DOMAIN. (Ch. 16 land ^^* But, on the other hand, in all cases of appropriation of part of a tract of land, mere speculative, remote, or contingent damages to the remaining parts are not to be taken into account or allowed for in the computation of damages."^ Thus, the appraisers cannot take into consideration any anticipated loss to the plaintiff of profits in his busi- ness, by reason of the appropriation of a part of his land.^'^ In some few of the states, the constitutions provide that benefits ac- cruing to the owner's remaining land cannot be set off against the diamages to be awarded him.^^' But, unless such a provision is found in the constitution, the rule is that in estimating the damages which a party sustains by the taking of a part of his tract of land for a public improvement, the local benefit accruing therefrom to the remainder may be considered and deducted from the damages occasioned by such taking ; and where such benefit equals or exceeds the value of the land taken and the amount of the "injury to the remainder, the owner sustains no legal damage and none can be allowed him/^* But "the benefits to be considered and allowed by the jury, where only a part of an entire tract is taken, are not such as are common to lands gen- erally in the vicinity, but such as result directly and peculiarly to the particular tract in question; as, for instance, where property is made more available and valuable by opening a street through it, or when land is drained or otherwise directly improved." ^^° For example, land Drainage, 8 Adol. & E. 429. See "Eminent Domain," Dec. Dig. (Key Tfo.) § 103; Cent. Dig. §§ 274-277. * 110 Swinney v. Ft Wayne, M. & C. R. Co., 59 Ind. 205 ; Lafayette, M. & B. R. Co. V. Murdock, 68 Ind. 137 ; St. Louis, Ft. S. & W. R. Co. v. McAuliff, 43 Kan. 185, 23 Pac. 102. See "Emment Domain," Dec. Dig. (Key No.) § XU; Cent. Dig. §§ 294, 298. ■ 111 Ellsworth, M. N. & S. E. Ry. Co. v. Maxwell, 39 Kan. 651, 18 Pac. 819. See "Eminent Domain," Dec. Dig. (Key No.) § 93; Cent. Dig. §§ 237-238. 112 Pittsburgh &, W. R. Co. v. Patterson, 107 Pa. 461; Schuylkill Nav. Co. V. Freedley, 6 Whart. (Pa.) 109 ; In re Mt. "Washington Road Co., 35 N. H. 134. See "Eminent Domain," Dog. Dig. (Key No.) § lOT; Cent. Dig. §§ 291, 293. 113 See Woodfolk v. Nashville & C. R. Co., 2 Swan (Tenn.) 422. See "Emi- nent Domain," Dec. Dig. (Key No.) §§ IJjJf-UG; Cent. Dig. §§ 378-393. 11* Nichols V. City of Bridgeport, 23 Conn. 189, 60 Am. Dec. 636; Trinity College V. City of Hartford, 32 Conn. 452 ; Jackson County v. Waldo, 85 Mo. 637; Piatt v. Pennsylvania Co., 43 Ohio St. 228, 1 N. E. 420; Whitman v. Boston & M. R. Co., 3 Allen (Mass.) 133. See "Eminent Domain," Dec. Dig. (Key No.) §§ lU-US; Cent. Dig. §§ 378-393. 110 Whitely v. Mississippi Water Power & Boom Co., 38 Minn. 523, 38 N. W. 753. See "Eminent Domain," Dec. Dig, (Key No.) §§ lU-146; Cent. Dig. §§ 378-353. § 184) COMPENSATION. 501 where the claim for damages grows out of the alteration of a highway, benefits caused by such alteration may be set off against the damages ; but this benefit must be some direct, special and peculiar benefit ac- cruing to the plaintiff's land, and not the general benefit accruing to all the adjacent estates by reason of having a wider street. If the alteration, by cutting off some of the plaintiff's land, leaves him a smaller estate with a longer street frontage, which is of more value in the market, this is a benefit which should be counted. But unless he receives some benefit not received in common by all the other es- tates on that street between the two nearest cross streets, it is not to be deducted.^ ^^ Furthermore, the benefits, like the damages, cannot be considered if they are merely remote, speculative, or conjectural. For example, in an action for damages to land in Wisconsin, result- ing from the construction of a railroad, the fact that the road is a trunk line to Chicago is not such a benefit to the plaintiff as will be considered in abatement of the damages suffered by him.^^' And the damage done to one piece of land, through which a railroad is run, cannot be compensated by benefits accruing to another and separate piece of land, through which it does not run, though belonging to the same person.^^* In the third place, if the taking does not consist in the actual appro- priation of any specific property, but in injury to it, or diminution of its value, in consequence of the work or improvement for which the power of eminent domain is exercised, the assessment of compensation will become a measuring of damages. And the owner will be entitled to fair compensation for all such direct injuries to the property as accrue from the work in question and affect him personally in his ownership, use, or enjoyment of the property, and which are not common to the whole community.^^* Ewdence. As the proceeding before the viewers is more in the nature of an ar- bitration than of a jury trial, considerable latitude is allowed in re- us Far well V. City of Cambridge, 11 Gray (Mass.) 413; Dickenson v. In- habitants of Fitchburg, 13 Gray (Mass.) 546. And see Mississippi Ry. Co. v. McDonald, 12 Heisk. (Tenn.) 54. See "Eminent Domain," Dec. Dig. (Key No.) § U6; Cent. Dig. §§ 390-393. 117 Laflin v. Chicago, W. & N. R. Co. (C. C.) 33 Fed. 415. See "Eminent Do- main," Dec. Dig. (Key No.) § 146; Cent. Dig. § 392. 118 Todd V. Kankakee & I. R. R. Co., 78 III. 530. See "Eminent DomMn," Dec. Dig. (Key No.) § 145; Cent. Dig. § 388. 119 Keithsburg & E. R. Co. v. Henry, 79 111. 290. See "Eminent Domadn," Dec. Dig. (Key No.) § 111; Cent. Dig. § S94. 502 THE KIGHT OF EMINENT DOMAIN. (Ch. 16 gard to the introduction of evidence. The object being to ascertain the actual market value of the property taken (or the actual extent to which it has been injured by the public work or improvement, as the case may be), almost anything which has a legitimate tendency to show such value should be admitted. And the appraisers will also be justi- fied in acting on their personal knowledge and opinion of the value of the property, though this should not influence them to the exclu- sion of legal and proper evidence. Prepayment of Damages. In a number of the states we find constitutional provisions to the effect that the compensation to be awarded to the owner of property which is appropriated for public use must be paid before the taking of the property. When this is not the case, the question, whether the law is invalid for postponing the payment of the compensation until after the owner is deprived of his property, will depend upon whether it is the state or a municipal corporation which takes the property or a private corporation. If the power of eminent domain is exercised for the benefit of the state or one 'of its municipalities, it is not essen- tial that payment should first be provided, for it is supposed that the public faith is a sufficient pledge and guaranty for the payment of what is awarded. But in this case, the law must provide a means of making his claim effective against the state or the municipality, which shall be adequate and certain, and which may be initiated by the prop- erty owner himself at his own discretion.^^" But if the property is to be taken by a private corporation, the same reasons do not exist. On the contrary, it may well happen that the ability of the corporation to pay the damages which shall be assessed may be doubtful. Although there is no fixed and absolute rule on the subject, the better authori- ties agree that in such cases the statute should require the amount to be paid, or be held ready for payment, before the land passes into the exclusive control of the corporation.^ ^^ But the owner of land taken by a private corporation under the power of eminent domain may, if he is sui juris, waive the right to exact prepayment of damages, by 120 Zimmerman v. Canfield, 42 Ohio St. 463; Wheeler v. Essex Public Road Board, 39 N. J. Law, 291 ; Haverhill Bridge Proprietors v. County Com'rs of Essex, 103 Mass. 120, 4 Am. Kep. 518. See "Eminent BonvaAn," Dec. Dig. (Key J'o.) §§ 73-78; Cent. Dig. §§ 188-m- 121 Wheeler v. Essex Public Road Board, 39 N. J. Daw, 291 ; Portneuf Irri- gating Co. V. Budge (Idaho) 100 Pac. 1046 ; Lovett v. West Virsdlnla Cent. Gas. Co. 65 W. Va. 739, 65 S. E. 196. See "Eminent Domain," Deo. Dig. (Key No.) §'73; Cent. Dig. § 188. § 184) COMPENSATION. 503 consenting, either expressly or by clear implication, to extend a credit to the company condemning, and allowing the damages to remain as a debt; but such waiver. is not to be inferred without a clear indica- tion, by words or acts, that the owner will not insist on his constitu- tional right. ^''^ Payment to be Made in Money. Since the appropriation of private property under this power is in the nature of a forced sale, it follows that the compensation to the owner must be made in money, or at least be pecunialry in character. The state, for instance, would have no power to compel the owner to accept other public lands in exchange for his lands thus taken. Nor could a railroad company, on appropriating lands, require the owner to accept a grant of other lands, licenses, or rights of way belonging to it.^^' But if the appropriation is made by a municipal corporation it seems that it may lawfully provide that the damages awarded shall be paid in interest-bearing bonds, either constituting a part of its ex- isting debt, or issued specially for the purpose of meeting the new expense. 122 New Orleans & S. R. Co. v. Jones, 68 Ala. 48; Fuller v. Plymouth County Com'rs, 15 Pick. (JIass.) 81 ; Marble v. Whitney, 28 N. Y. 297. See "Eminent Domain," Dec. Dig. (Key No.) §§ 74, 79, 80; Cent. Dig.. §§ 197, 205-214- 123 See Chicago, S. F. & C. Ry. Co. v. McGren^, 104 Mo. 282, 15 S. W. 931; Vanhome v. Dorrance, 2 Dall. 304, 315, 1 L. Ed. 391. See "Eminent Domain," Dec. Dig. (Key No.) § 163; Cent. Dig. §§ 437, 438. 504 MUNICIPAL CORPORATIONS. (Ch. 17 CHAPTER XVII. MUNICIPAL CORPORATIONS. 185. Local Self-Government. ' 186-187. Nature of Municipal Corporations. 188. Power to Create Municipal Corporations. 189. Legislative Control of Municipal Corporations. 190. Debts and Revenue. 191-192. Officers of Municipalities. 193. Powers of Municipal Corporations. 194-196. By-Laws of Municipal Corporations. XOCAL SELF-GOVERNMENT. 185. The principle of local self-goTernment requires that local gov- erniueutal affairs shall be decided upon and regulated by local authorities, and that the people of the municipal subdivisions of the state shall have the right to determine upon their ovrn, municipal concerns, without being controlled by the general public or the state at large. The principle of local self-government is regarded as fundamental in American political institutions. It is not, however, an American invention, but is traditional in England, and is justly regarded as one of the most valuable safeguards against tyranny and oppression. "We learn from Blackstone and the elementary writers that the civil divi- sions of England, its counties, hundreds, tithings, or towns, date as far back as the times of the great Alfred. In all the changes of policy, of dynasty, of peace and internal war, and even of conquest, which that country has undergone since his day, these organizations have never been abated or abandoned. They are substantially at this time what they were before the Norman invasion. Wherever the Anglo- Saxon race have gone, wherever they have carried their language and laws, these communities, each with a local administration of its own selection, have gone with them. It is here they have acquired the habits of subordination, and obedience to the laws, of patient en- durance, resolute purpose, and the knowledge of civil government which distinguish them from every other people. Here have been the seats of modern civilization, the nurseries of public spirit, and' the centers of constitutional liberty. They are the opposites of those sys- § 186) LOCAL SELF-GOVERNMENT. 505 terns which collect all power at a common center, to be wielded by a common will, and to effect a given purpose ; which absorb all political authority, exercise all its functions, distribute all its patronage, repress the public activity, stifle the public voice, and crush out the public liberty."^ And in another case we read: "This right of self-govern- ment lies at the foundation of our institutions, and cannot be disturbed or interfered with, even in respect to the smallest of the divisions into which the state is divided for governmental purposes, without weaken- ing the entire foundation ; and hence it is a right not only to be care- fully guarded by every department of the government, but every in- fraction or evasion of it to be promptly met and condemned, especially by the courts, when such acts become the subject of judicial investi- gation." ^ This important principle finds its most pure and perfect expression in the town meeting of New England, which is a legal assembly of the qualified voters of a town, held at stated intervals or on call, for the purpose of electing town officers, and of discussing and de- ciding on questions relating to the public business, property, and expenses of the town. Although such pure democracy does not pre- vail throughout our country, yet it is in pursuance of the same gen- eral principle that municipal corporations are established in all the states, and invested with rights and powers of government subor- dinate to the general authority of the state, but exclusive within their sphere. And it is in reality but an extension of this principle that the government of the United States should be intrusted with only such powers and rights as concern the welfare of the whole coun- try, while the individual states are left to the uncontrolled regulation of their internal affairs. The principle of local government being thus firmly implanted in our political system, it rests with the legisla- 1 People V. Draper, 15 N. Y. 532, 561. See "Municipal Corporations," Dec, Dig. (Key 2Vo.) §§ 4, 6^-79; Gent. Dig. §§ 4, 156-183. 2 People V. Albertson, 55 N. Y. 50, 57. And see State v. Williams, 68 Conn. 131, 35 Atl. 24, 48 L. R. A. 465 ; Van Cleve v. Passaic Valley Sewerage Com'rs. 71 N. J. Law, 183, 58 Atl. 571 ; State v. Moores, 55 Neb. 480, 76 N. W. 175, 41 L. R. A. 624. Compare Adams v. Kuykendall, 83 Miss. 571, 35 South. 830. Courts will not interfere in the administration of the internal domestic afCairs of municipal corporations, unless there is a manifest disregard or abuse of power or discretion. Southern Ry. Co. v. Com'rs of Board of Mecklenburg County, 148 N. C. 220, 61 S. B. 690 ; Barhite v. Home Tel. Co. of Rochester, 50 App. Div. 25, 63 N. Y. Supp. 659. See "Municipal Corporations," Deo. Dig, {Key No.) §§ 64-79; Cent. Dig. §§ 156-183. 506 MUNICIPAL CORPORATIONS. (Ch. 17 tive authority of each state to apply and adjust it to the varying needs of its own people.' That authority must determine what municipal corporations shall be created and what shall be their powers and the limit of their jurisdiction, according to its view of the requirements of the different sections and districts of the state, and their capacity and need of local government. In some of the states, the right of local government is guarded by constitutional provisions forbidding the legislature to make any pri- vate or special laws "regulating the internal affairs of towns and counties." In others, it is considered as one of the rights inherent in the people at the time of the adoption of the constitution, and reserved to the people by that instrument except as modified by the grant of authority to the legislature. NATURE OF MUNICIPAI, CORPORATIONS. 186. Municipal corporations are administrative agencies established for the local government of toivns, cities, counties, or other particular districts. 187. The special poirers conferred on them are not vested rights as against the state, nor are they in the nature of contracts, but, being wholly political, they exist only during the will of the legislature. Such powers may at any time be changed, modi- fied, repealed, or destroyed by the legislature, saving only the vested rights of individuals. A municipal corporation is a public corporation created by the gov- ernment for political purposes, and having subordinate and local pow- ers of legislation; it is an incorporation of persons, inhabitants of a particular place or connected with a particular district, enabling them to conduct its local civil government.* The more usual kinds of mu- nicipal or quasi municipal corporations in this country are cities, towns, townships, boroughs, villages, parishes, counties, school districts, poor districts, and road districts. The charter of a municipal corporation is not a contract, within the meaning of that clause of the federal constitution which forbids the 3 Eckerson v. City of Des Moines, 137 Iowa, 452, 115 N. W. 177. See "Con- sUiutional Law," Dec. Dig. (Key No.) § 6Sj Cent. Dig. §§ 108-lli; "States," Dec. Dig. {Key No.) § 4; Cent. Dig. § 2. * City of Pliiladelphla v. Fox, 64 Pa. 169, 180 ; Penick v. Foster, 129 Ga. 217, 58 S. E. 773, 12 L. R. A. (N. S.) 1159. See "Municipal Corporations," Dec. Dig. (Key No.) §§ 64-79; Cent. Dig. §§ 156-183. § 188) POWER TO CREATE MUNICIPAL CORPORATIONS, 507 passage of laws impairing the obligation of contracts. Hence it fol- lows that such charters may be altered, amended, or repealed by the ■ legislature at its own discretion, without any violation of that clause, provided only that private vested rights are not infringed by the action which it may take in regard to the charter." And municipal corpora- tions, being creatures of legislation, have no constitutional guaranty of trial by jury, and such trial may be denied to them.' They are liable to have their public powers, rights, and duties modified or abol- ished at any time by the legislature. They are allowed to hold privi- leges or property only for public purposes. Hence, generally, the doings between them and the legislature are in the nature of legisla- tion rather than compact.'' And one legislature cannot impose restric- tions on the powers of a municipal corporation which a future legis- lature cannot modify or abrogate, except where a vested right or the obligation of a contract might be thereby divested or impaired.' POWER TO CKEATE MIJNICIPAI. COBPOBATIONS. 188. The TfovreT to distribute the administrative f mictions of govern- ment, and from time to time to change their distribution, be- longs exclusively to the legislature, and this includes the power— (a) To incorporate cities and other municipal corporations.s (b) To establish, modify, or change their territorial boundaries. (c) To classify the cities of the state according to population or some other reasonable principle of division. 5 Brown v. Hummel, 6 Pa. 86, 92,. 4T Am. Dee. 431 ; City of Philadelphia v. Fox, 64 Pa. 169 ; Inhabitants of Xarmouth v. Inhabitants of North Yarmouth,- 34 Me. 411, 56 Am. Dec. 666 ; Berlin v. Gorham, 34 N. H. 266 ; President, etc., ■of City of Paterson v. Society for Establishing Useful Manufactures, 24 N. J. Law, 385 ; Town of Marietta v. Fearing, 4 Ohio, 427 ; Horton v. City Council -and City Treasurer of Newport, 27 R. I. 283, 61 Atl. 759. See "Constitutional Law," Bee. Dig. (Key No.) § 127; Cent. Dig. §§ SSS-Sii. 6 Borough of Dunmore's Appeal, 52 Pa. 374. See "Jury," Dec. Dig. (Key No.) •§ 9; Cent. Dig. § 17. ^ Town of East Hartford v. Hartford Bridge Co., 10 How. 511, 534, 13 L. Ed. 518. See "Constitutional haw," Dec, Dig. (Key No.) § 127; Cent. Dig. §§ ■323S.il. 8 State V. Pilsbury, 31 La. Ann. 1. See "Constitutional Law," Dec. Dig. iKey No.) § 127; Cent. Dig. §§ SSS-SJil. 9 State V. Cedaraski, 80 Conn. 478, 69 Atl. 19 ; Turner v. Althaus, 6 Neb. .54 ; Hope v. Deaderick, 8 Humph. (Tenn.) 1, 47 Am. Dec. 597. See "Municipal Corporations," Dec. Dig. (Key No.) § 3; Cent. Dig. § 2; "Constitutional Law," 'Cent. Dig. §§ 325-3U- 508 MUNICIPAL COKPORATIONS. (Ch. 17 Creation of Municipalities. The creation of municipal corporations is generally accomplished either by a special grant of a charter, or (where this is forbidden by the state constitution, as is now generally the case) by the enactment of a general law under which such corporations may be organized whenever the particular district possesses the requisite population and complies with the other conditions of the act/" When the constitu- tion empowers the legislature to establish but one system of town and county government, to be as nearly uniform as practicable, absolute uniformity is not required." Boundaries. As it is for the legislature to determine whether municipal corpora- tions shall be established, and how the subordinate functions of gov- ernment shall be apportioned to them, so also it is within its power, unless restrained by the constitution, to decide what shall be the terri- torial boundaries of a city, county, or other such corporation, and after having established the boundaries it may, in its discretion, modify or change them, subject only to the proviso that private vested rights must not be injured by the alterations. Thus, the legislature may annex or authorize the annexation of territory contiguous to the the limits of an incorporated town or city, without the consent of the persons residing either in the corporation or the annexed territory.^* But if the legislature should prescribe that such territory should not be annexed to the municipality unless a majority of the persons living therein should assent thereto, this would not be an unlawful delegation of legislative power, but a concession to the parties to be affected of the privilege of accepting "or rejecting a charter.^' Statutes fixing 10 Unless controlled by constitutional limitations, the legislature has abso- lute authority to decide when a given locality has a sufficient number of In- habitants to entitle it to be incorporated as a city. Mattox v. State, 115 Ga. 212, 41 S. E. 709. See "Municipal Corporations," Dec. Dig. {Key No.) § S; Cent. Dig. § 3. 11 Cathcart v. Comstock, 56 Wis. 590, 14 N. W. 833. See "Statutes," Dec. Dig. (Key No.) §§ 91, 9i; Cent. Dig. §§ 100, 103. 12 Graham v. City of Greenville, 67 Tex. 62, 2 g. W. 742; Stilz v. City of Indianapolis, 55 Ind. 515 ; Martin v. Dix, 52 Miss. 53, 24 Am. Rep. 661 ; Allen- town V. Wagner, 27 Pa. Super. Ct. 485; Town of Cicero v. City of Chicago, 182 111. 301, 55 N. E. 351 ; Hunter v. City of Pittsburgh, 207 U. S. 161, 28 Sup. Ct. 40, 52 L. Ed. 151. See "Municipal Corporations," Dec. Dig. (Key No.) §| 26-37; Cent. Dig. §§ 63-111; "Constitutional Law," Cent. Dig. §§ 334, 335. 18 Graham v. City of Greenville, 67 Tex. 62, 2 S. W. 742. See "Mtmicipal Corporations," Dec. Dig. (Key No.) §§ 33, 34; Cent. Dig. §§ 87, 100. § 188) POWER TO CREATE MUNICIPAL CORPORATIONS. 509 the boundaries of counties, and dividing such counties into towns, and providing for town organizations, are held to be properly within the sphere of the powers of the legislature, even though not expressly specified in the constitution.^* And an act of the legislature fixing the county seat is not unconstitutional because it was passed without any consultation with the people of the county and without giving them an opportunity to petition the legislature; nor because two places were named in the act, and the choice between them left to the popular vote.^° Classification. It is now a common practice to divide the cities of a state into sev- eral classes, according to their population, giving to those of each class a certain range of powers or privileges, or a form of govern- ment, different from those accorded to the other classes, the object being to adapt the municipal government and powers to the varying conditions and needs of the different populations. Laws making such a classification are not open to the objection that they are local or special. "A law applying to a certain class of cities, fixed by previous legislation, into which other municipal corporations may enter, and from which they may pass into other classes, by increase of popula- tion, is not special but general, since the grade of any particular city is not designated by the act, but depends upon its growth in popula- tion, as it may, by such growth, pass from one grade or class into another."^' And it is no constitutional objection to such a law that there may be, at the time, only one city in the state which possesses a sufficient population to bring it into one of the designated classes,^' unless it is evident that the legislature merely sought in this manner to evade the constitutional prohibition against special laws. It is pos- sible that there may be other bases for classification beside the relative 1* Chicago & N. W. Ry. Co. v. Langlade Co., 56 Wis. 614, 14 N. W. 844. See ■"Statutes," Deo. Dig. (Key No.) § 91; Cent. Dig. § 100. 15 Ex parte Hill, 40 Ala. 121. See "Counties," Dec. Dig. (Key No.) § S5j 'Cent. Dig. § 38; "Constitutional Law," Cent. Dig. § 119. IS State V. Hawkins, 44 Ohio St. 98, 108, 5 N. E. 228; Land, Log & Lumber •Co. V. Brown, 73 Wis. 294, 40 N. W. 482, 3 L. R. A. 472 ; People v. Henshaw, 76 Cal. 436, 18 Pac. 413 ; State v. Hunter, 38 Kan. 578, 17 Pac. 177 ; Paul v. •Gloucester County, 50 N. J. Law, 585, 15 Atl. 272, 1 L. R. A. 86. See "Stat- utes," Dec. Dig. (Key No.) §§ 91-93; Cent. Dig. §§ 101, lOS. IT State V. Miller, 100 Mo. 439, 13 S. W. 677 ; State v. Graham, 16 Neb. 74, 19 N. W. 470 ; State v. Hudson, 44 Ohio St. 137, 5 N. K 225. See "Statutes," Dec. Dig. (Key No.) §§ 77, 9S; Cent. "Dig. §§ 81, lOZ. 510 MUNICIPAL CORPOEATIONS. (Ch. 1;7 population, but whatever system is adopted, it must be such as to show clearly the need of differences in powers or governments. "The true principle of classification," says the court in New Jersey, "requires something more than a mere designation by such characteristics as will serve to /classify, for the characteristics which will thus serve as a basis of classification must be of such a nature as to mark the object so designated as peculiarly requiring exclusive legislation. There must be a substantial distinction, having a reference to the subject-matter of the proposed legislation, between the objects or places embraced in such legislation and the objects or places excluded. The marks of distinction on which the classification is founded must be such, in the nature of things, as will, in some reasonable degree, at least, account for or justify the restriction of the legislation." ^^ rEGISLATIVE CONTBOI. OF MUNICIFAI. COBFOBATIONS. 189. In respect to all those matters in which the people of the state generally have an interest or concern, the legislature may re- quire and compel the municipalities to discharge duties, per- form Dvorhs, and if necessary contract debts. But in regard to matters of purely local concern, xirhich are not of im- portance to the state at large, and nrhich are generally best regulated by the local authorities, the rule of local self-gov- ernment requires that the municipality should be controlled only by the preferences and determinations of its oirn citizens. The double function of municipal corporations requires them to assume a share in the performance of state duties, as the legislature shall apportion the same, and also to regulate matters which concern only the particular community. In respect to the first class of duties, the legislature has the control, and it may grant, modify, or abrogate municipal powers as its wisdom shall dictate. It may also, within the same field, coerce a municipal corporation into the discharge of its proper functions, by laws requiring it to make contracts, issue bonds, or undertake public works. Thus, a city or county may be compelled to maintain local courts or a local police system, to lay out and keep in repair public highways, build bridges, and erect suitable public buildings. But in regard to its own local needs or advantages, the municipality alone is to judge of the desirability of making contracts, 18 state V. Hammer, 42 N. J. Law, 435. iSee "Statutes," Dec. Dig. {Key No.) §§ 95, 121; Cent. Dig. §§ 106, 113. § 189) LEGISLATIVE GONTKOL OF MUNICIPAL CORPORATIONS. 511 undertaking works, or incurring debts, and in these matters it cannot he compelled against its will to adopt the wishes of the state legisla- ture. Thus, in regard to the maintenance of municipal parks, the ques- tion of a municipal system of gas or waterworks, and other such pri- vate and local affairs, it 'is not in the lawful power of the legislature to force the municipality into engagements or debts.^ " While municipal corporations are subordinate agencies of govern- ment, and, as such, subject to the regulation and control of the legis- lative authority of the state, yet they are also, in some particulars, assimilated to private corporations in respect to their rights and pow- ers. "Over all its civil, political, or governmental powers," says Dil- lon, "the authority of the legislature is, in the nature of things, su- preme and without limitation, unless the limitation is found in the constitution of the particular state. But, in its proprietary or private character, the theory is that the powers are supposed not to be con- ferred primarily or chiefly from considerations connected with the government of the state at large, but for the private advantage of the compact community which is incorporated as a distinct legal personality or corporate individual ; and as to such powers, and property acquired thereunder, and contracts madie with reference thereto, the corpora- tion is to be regarded quoad hoc as a private corporation, or at least not public in the sense that the power of the legislature over it or the rights represented by it is omnipotent." ^^ And the power of the legislature to control the municipal corpora- is In regard to these general propositions, see Kimball v. County of Mobile, 3 Woods, 555, Fed. Cas. No. 7,774; People v. Draper, 15 N. T. 532; Mayor, etc., of Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572 ; People v. Common Council of Detroit, 28 Mich. 228, 15 Am. Rep. 202 ; Western Sav. Fund Soc. v. City of Philadelphia, 31 Pa. 175, 72 Am. Dec. 730 ; People v. Mayor of Detroit, 29 Mich. 343 ; City of Hartford v.. Maslen, 76 Conn. 599, 57 Atl. 740 ; People V. Coler, 166 N. Y. 1, 59 N. E. 716, 52 L. R. A. 814, 82 Am. St. Rep. 605 ; Horton V. City Council and City Treasurer of Newport, 27 R. I. 283, 61 Atl. 759, 1 L. R. A. (N. S.) 512. See "Counties," Dec. Dig. (Key No.) § 24; Cent. Dig. § 24. 20 1 Dill. Mun. Corp. § 66. The state may make a contract with, or grant to, a municipal corporation, which it cannot subsequently impair or resume. "A grant may be made to a public corporation for purposes of private advan- tage, and, although the public may also derive a common benefit therefrom, yet the corporation stands on the same footing, as respects such grant, as would any body of persons upon whom like privileges were conferred." Rich- land County V. Lawrence County, 12 111. 1 ; Spaulding v. Town of Andover, 54 N. H. 38. See "Constitutional Ltm," Dec. Dig. (Key No.) § 127; Cent. Dig. § 333. 312 MUNICIPAL CORPORATIONS. (Ch. 17 tions is also limited by the necessity of preserving the rights of third persons which may in some cases intervene. Thus, the right to inter- fere with the powers and government of a city cannot be so exer- cised as to deprive bona fide creditors of the municipality of their remedies against it. The power of taxation, for example, cannot be so abridged that persons who had previously become creditors of the city, relying on its power to levy taxes to pay its debts, shall be dle- prived of all effectual means of collecting their claims.''^ DEBTS AND REVENUE. 190. Tlie legislature has power to recinire and compel a municipal corporation to pay its just debts, even when they are not en- forceable fay the ordinary processes of law, and to this end it may require the municipality to raise money by taxation. It matters not that the particular claim is not such as the courts would enforce without further legislative authority. If a moral obli- gation exists, the legislature may give it legal sanction. A law re- quiring a municipal corporation to pay a demand against it which is without legal obligation, but which is equitable and just in itself, being founded upon a valuable consideration received by the corporation, is not open to constitutional objection, as being retroactive, or other- wise.^^ Thus, the legislature may authorize a municipality to issue bonds for a debt contracted, without legislative authority, for the im- provement of its streets.^' But the legislature cannot compel a mu- 21 Von Hoffman v. City of Quincy, 4 Wall. 535, 18 L. Ed. 403 ; Louisiana V. St. Martin's Parish, 111 U. S. 716, 4 Sup. Ct. 648, 28 L. Ed. 574 ; State v. Common Council of City of Madison, 15 Wis. 30 ; Goodale v. Fennell, 27 Ohio St. 426, 22 Am. Rep. 321. See "Constitutional Law," Dec. Dig. (Key No.) § IST; Gent. Dig. § 354. 2 2 Lycoming County v. Union County, 15 Pa. 166, 53 Am. Dec. 575; New- Orleans V. Clark, 95 TJ. S. 654, 24 L. Ed. 521 ; New York Life Ins. Co. v. Board of Com'rs of Cuyahoga County, Ohio, 106 Fed. 123, 45 C. C. A. 233 ; Morris & E. R. Co. y. Newark (N. J.) 70 Atl. 194 ; Merchants' Nat. Bank of St. Paul V. City of East Grand Forks, 94 Minn. 246, 102 N. W. 703. A statute author- izing the recovery of damages against cities for the acts of mobs is not un- constitutional, lola V. Bimbaum, 71 Kan. 600, 81 Pac. 198. It is competent for the legislature of a state to require a county to pay a just debt after the lapse of such time as would bar it by limitation. Caldwell County v. Harbert, 68 Tex. 321, 4 S. W. 607. See '-'Constitutional Law," Deo. Dig. {Key No.) §§ 190, 19S; Cent. Dig. §§ 5SS, 531. 23 Mutual Ben. Life Ins. Co. v. City of Elizabeth, 42 N. J. Law, 235. See "Constitutional Law," Dec Dig. {Key No.) § 193 j Cent. Dig. § 539. §§ 191-192) OFFICERS OF MUNICIPALITIES. 513 nicipal corporation to pay a claim which it is under no obligation, le- gal or moral, to pay; nor can it require a court to render judgment on proof of the amount thereof.^* The revenues of a county are not the property of the county in the sense in which those of a private person or corporation are regarded. The whole state has an interest in the revenue of a county, and for the public good the legislature must have the power to direct its ap- plication.^' But a municipal corporation has no power to spend money raised by taxation for any other than purely public purposes.^* OFFICEBS OF MUNICIFAlrlTIES. 191. OfBcers having to do ivith municipal corporations are of ixro sorts: (a) Those whose functions concern the 'whole state or its people generally, although territorially restricted. (1i) Those w^hose powers and duties relate exclusively to matters of purely local concern. 192. Officers of the former class may be appointed or regulated by the state authorities; but the principle of local self-govern- ment requires that the choice of officers of the latter class should be left exclusively to the people of the particular com- munity. The police system of a city is a part of the state government, though its duties are locally restricted, and it is therefore under the control of the legislature, which may vest the appointment and government of the police force in officers or boards not chosen by the citizens of the municipality."^ On the other hand, it is generally considered that the fire department is an institution of purely local concern, and the power to appoint and control its members should therefore be left to 2* Hoagland v. City of Sacramento. 52 Cal. 142^ Supervisors of Sadsbury Tp. V. Dennis, 96 Pa. 400. See "Constitutional Law," Dec. Dig. (Key No.) § 252; Cent. Dig. § m. 2 People V. Power, 25 111. 169; City of Chicago v. Cook County, 106 111. App. 47. Bee "Constitutional Law," Dec. Dig. (Key No.) § 127; Gent. Dig. S§ S25, SSS. 2« Wheelock v. City of Lowell, 196 Mass. 220, 81 N. E. 977, 124 Am. St. Rep. 543. See "Municipal Corporations," Dec. Dig. (Key No.) §§ 861, 890; Cent. Dig. §§ 1819-1823, 1812. 2T Horton v. City Council and City Treasurer of Newport, 27 R. I. 283, 61 Atl. 759, 1 L. R. A. (N. S.) 512 ; aty of Americus v. Perry, 114 Ga. 871, 40 S. E. 1004, 57 L. R. A. 230 ; People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103. See "Municipal Corporations," Dec. Dig. (Key No.) § 67; (7e»*. Dig. § 162. Bl.Const.Li.(3d.Eo.)— 38 514 MUNICIPAL CORPORATIONS. (Ch. 17 the municipal authorities.^* But the most recent decisions sanction the course taken by some legislatures in withdrawing from the citizens or officers of municipalities the power of appointment or election, and vesting in the governor of the state the authority to appoint the prin- cipal municipal officers,^" even the mayor or other chief executive offi- cer,^" as well as boards of public works, police andl fire commissioners, and the like.'^ POWERS OF MUNICIFAI. CORPORATIONS. 193. The powers vested in a mnnicipal corporation are restricted to the follonring three classes: (a) Those expressly granted to it in its charter, or in constitutional or statutory provisions applicable to it. (b) Those granted by necessary or fair implication from the terms of the same instruntents. (c) Those ivhich are necessary to enable it to exercise its granted powers and effect the objects of its incorporation.32 Implied Powers. Besides the powers enumerated in the charter, there are certain im- plied powers which belong to municipal corporations merely in virtue of their status as public corporations. These are such as are neces- sary to enable the corporation to exercise its enumerated powers and * 28 state V. Fox, 158 Ind. 126, 63 N. E. 19, 56 L. B. A. 893 ; State v. Denny, lis Ind. 449, 21 N. E. 274, 4 L. R. A. 65 ; City of Evansville v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93. See "Munioipal Corporations," Deo. Dig. {Key A'o.) § 66; Gent. Dig. § 159. 2 9 Brown v. Galveston, 97 Tex. 1, 75 S. W. 488. See "Municipal Oorporor tions," Dec. Dig. {Key No.) § lU; Cent. Dig. §§ 290-297. 30 Commonwealtli v. Moir, 199 Pa. 534, 49 Atl. 351, 53 L. R. A. 837, 85 Am. St. Rep. 801. See "Municipal Corporations," Dec. Dig. {Key No.) § 124; Cent. Dig. §§ 290-297. 31 State V. Nolan, 71 Neb. 136, 98 N. W. 657. But compare State v. Denny, 118 Ind. 382, 21 N. E. 252, 4 L. R. A. 79 ; State v. Moores, 55 Neb. 480, 76 N. W. 175, 41 L. R. A. 624. See "Municipal Corporations," Dec. Dig. {Key No.) § 66; Cent. Dig. § 159. 3 2 Ottawa V. Carey, 108 U. S. 110, 2 Sup. Ct. 361, 27 L. Ed. 669; Los An- geles City Water Co. v. City of Los Angeles (C. C.) 88 Fed. 720 ; Spaulding v. City of Lowell, 23 Pick. (Mass.) 71 ; City of Joplin v. Leckie, 78 Mo. App. 8 ; Ogden City v. Bear Lake & River Waterworks & Irrigation Co., 16 Utah, 440, 52 Pac. 697, 41 L. E. A. 305; City of Delphi v. Hamling (Ind.) 89 N. E. 308; 1 Dill. Mun. Corp. § 89. See "Municipal Corporations," Dec. Dig. {Key No.) §§ 52-63; Cent. Dig. §§ Ul-155, 1318, 1S19. § 193) rOWEES OF MUNICIPAL CORPORATIONS. 515 to carry out the objects of its incorporation, and they are considered as inherent in the corporation because it must be presumed that they were within the contemplation of the incorporating power, which would not have granted a charter without the means to carry on a corporate existence. For example, a city incorporated by the legis- lature has the capacity to sue and be sued in its corporate name, as one of its ordinary and essential powers; andl it is not necessary in pleading for such a corporation to aver its legal capacity to sue.^* So, also, the power to remove a corporate officer from his office is one of the common-law incidents of all corporations, including municipal corporations.^* Power to Acquire and Hold Property. By the common law a municipal corporation has power to acquire and hold all such real and personal property as may be necessary to the due and proper exercise of its governmental functions and to the execution of any duty or. obligation with which it is specially charged ; and this authority is also commonly accorded or recognized in municipal charters or the general laws regulating such bodies. But a municipality has no power to acquire land! merely as an investment, or for a speculative future profit, or for the revenue to be derived from the rents. ^^ Nor can it acquire and hold real property for mu- nicipal purposes beyond its own territorial limits, unless such power has been given by statute,^' or unless indispensably necessary to its municipal purposes, which cannot be said of a rock quarry outside the limits of a city, though it might be convenient for the pity to own it, having in view the paving and macadamizing of the streets.^'' And since a municipal corporation has no power to incumber its property S3 City of Janesville v. Milwaukee & M. R. Co., 7 Wis. 484. See "Municipal Corporations," Dec. Dig. (Key No.) § 10S4; Cent. Dig. § 2203. 3* Richards v. Clarksburg, 30 W. Va. 491, 4 S. E. 774. See "Municipal Cor- porations," Dec. Dig.' (Key No.) § 155; Cent. Dig. §§ S^S, SU- 3 5 Hay ward v. Board of Trustees of Town of Red CHflE, 20 Colo. 33, 36 Pac. 795 ; City of Champaign v. Harmon, 98 111. 491 ; Bates v. Bassett, 60 Vt. 530, 15 Atl. 200, 1 L. R. A. 166 ; Opinion of the Justices, 155 Mass. 598, 30 N. E. 1142, 15 L. R. A. 809 ; Opinion of Justices, 58 Me. 590 ; Hunnicutt v. City of Atlanta, 104 Ga. 1, 30 S. E. 500. See "MunAcipal Corporations," Dec. Dig. (Key No.) §§ 221-223; Cent. Dig. §§ 609-622. 3 6 Becker v. City of La Crosse, 99 Wis. 414, 75 N. W. 84, 40 L. R, A. 829, 67 Am. St. Rep. 874 ; Langley v. City Council of Augusta, 118 Ga. 590, 45 S. B. 486, 98 Am. St. Rep. 133 ; Riley v. City of Rochester, 9 N. Y. '64.' See "Muni- cipal Corporations," Dec. Dig. (Key No.) § 221; Cent. Dig. § 613. 37 iXincan v. City of Lynchburg (Va.) 34 S. E. 964, 48 L. B. A. 331. See 516 MUNICIPAL CORPORATIONS. (Ch. IT* by mortgage, in the absence of express legislative authority, it fol- lows that it cannot purchase and hold property which is subject to a mortgage.'* Generally, cities and towns are capable of taking and holding property under a devise or bequest or deed of gift, and of holdling the same as a trustee, for purposes of a public nature germane to the objects of the corporation, or purposes beneficial to their inhabitants, such as educational and charitable foundations,''* but not for religious purposes.*" Business and Commercial Bnterprises. A city has no power to engage in the purchase and sale of com- modities as a business or conduct a manufacturing plant. Thus, what- ever the motive, it may not engage in buying coal and selling the same to the citizens, thereby entering into competition with local dealers.*^ And though systems of waterworks owned and operated by municipal ■corporations are a recognized feature of modern life, the charter power of a city to erect and maintain such a system does not give it authority to engage in a general plumbing business.*^ Abrogation or Modification of Powers. As municipal corporations are the creatures of the legislature, their powers and privileges may be changed, modified, or taken away at any time by general law, except in so far as they may be safeguarded by the constitution.*' ■ "Muwioipal Corporations," Dec. Dig. (Key No.) §§ 221, 223; Cent. Dig. §§ eiX, 616-622. 3 8 Fidelity Trust & Guaranty Co. v. Fowler Water Co. (C. O.) 113 Fed. 560. See "Municipal Corporations," Dec. Dig. (Key No.) § 221. 38 Handley v. Palmer (C. C.) 91 Fed. 948; City of Philadelphia v. Fox, 64 Pa. 169 ; In re Crane's Will, 159 N. Y. 557, 54 N. E. 1089 ; State v. Toledo, 23 Ohio Cir. Ct. R. 327; In re Robinson's Elstate, 63 Cal. 620. A city may accept real estate conveyed to it as a gift for a free public library, with the condition that the city shall raise the sum necessary to erect buildings on It. Keuffel V. Hoboken, 71 N. J. Law, 518, 59 Atl. 20. See "Municipal Corpora^ tions," Dec. Dig. {Key No.) § 223; Cent. Dig. §§ 616-622. *o City of Maysville v. Wood, 102 Ky. 263, 43 S. W. 403, 19 Ky. Law Rep. 1292, 39 L. R. A. 93, 80 Am. St. Rep. 355. See "Municipal Corporations," Dec. Dig. (Key No.) | 223. 41 Baker v. City of Grand Rapids, 142 Mich. 687, 106 N. W. 208. See "Mu- nicipal Corporations," Dec. Dig. (Key No.) § 223; Cent. Dig. § 622. *2 Keen v. Mayor & Council of City of Waycross, 101 Ga. 588, 29 S. B. 42. See "Municipal Corporations," Dec. Dig. (Key No.) § 223. 43 In re Allison, 172 N. Y. 421, 65 N. E. 263 ; People v. MeBrlde, 234 111. 146, 84 N. E. 865, 123 Am. St. Rep. 82. See "Municipal Corporations," Dec. Dig. (Key No.) § 6i; Cent. Dig. §§ 156, 157. §§ 194-196) BY-LAWS OF MUNICIPAL COHPOBATION8. 51T BY-I.AWS OF MUNICIFAI. CORPORATIONS. 194. Mnnloipal oorporations are invested frith, subordinate poiveTS of government, including the poiver to enact hy-laivs or ordi- nances -which, ivithin their sphere, shall have the force of laiv.. 195. Municipal by-lawp or ordinances, to be valid, must be— (a) Consistent -with all laws of a higher nature. (b) Authorized by the charter or a statute. (c) Reasonable. (d) Impartial. (e) Certain. 196. The legislative power vested in a municipality cannot be dele- gated, but must be exercised by the municipality through its appointed agencies. Power to Enact By-Laws. Since municipal corporations are agencies of government, operating within a limited sphere, and since the regulations which they may es- tablish will generally come into the closest relation with the conduct of the citizens, it is eminently proper that they should be invested' with adequate powers to make ordinances in matters of police. AlE those matters which concern the public safety, comfort, health, or morals, are best regulated, in their more minute details, by the people- of each community for themselves. And the general policy of our institutions is to intrust a large measure of discretion, in these par- ticulars, to the several municipalities. Thus, in the absence of specific constitutional restrictions, it is competent for the legislature of a state, by a general incorporation law or by a particular charter, to empower a municipality to make ordinances, operative within its- limits, for the regulation or licensing of the traffic in intoxicating liq- uors, although the subject may already be provided for by the general! laws of the state. And a municipal charter or its by-laws may thus- either expressly or by necessary implication, supersede the general laws on the subject, within the limits of the corporation.** Conformity with Higher Laws. The power of a municipal corporation to enact by-laws or ordi- nances is subject to the limitation that they must not conflict with " Davis V. State, 2 Tex. App. 425; Commonwealth v. Fredericks, 119 Mass. 199 ; State v. Harper, 42 La. Ann. 312, 7 South. 446. See "Municipal Oorpora- tions," Dec. Dig. (Key No.) § 592; Cent. Dig. § ISll; "Constitutional Law,"' Cent. Dig. §§ 110, 687; "Intoxicating Liquors," Cent. Dig. §§ 10, 240. S18 MUNICIPAL CORPORATIONS. (Ch. 17 any provision of the constitution of the United States, any treaty, any act of congress, any provision of the constitution of the state, or any provision of the general statutes of the state. All these are laws of a superior nature, to which the inferior must conform. A municipal by-law repugnant to any of them is ultra vires and can have no effi- cacy.*^ Moreover, as we have seen, the powers of a municipality are limited to those granted in its charter or in statutory provisions ap- plicable to it. It will, of course, follow that a by-law not authorized to be passed by either the plain terms or necessary implications of such charter or statute is invalid.*' Reasonableness. The validity of municipal ordinances may also depend upon their reasonableness. But here it is necessary to distinguish between such ■as are enacted under a specific grant of power and such as are passed under a general or implied grant. "Where the legislature in terms confers upon a municipal corporation the power to pass ordi- nances of a specified and defined character, if the power thus delegated be not in conflict with the constitution, an ordinance passed in pursu- ance thereof cannot be impeached as invalid because it would have been regarded as unreasonable if it had been passed under the inci- dental powers of the corporation, or under a grant of power general in its nature. In other words, what the legislature distinctly says may be done cannot be set aside by the courts because they may deem it unreasonable or against sound policy. But where the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then the ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be pronounced in- valid." *' To illustrate, an ordinance prohibiting the opening of streets for the purpose of laying gas mains, between the 1st of December and the 1st of March, is a reasonable regulation; but an ordinance pro- 45 City of Burlington v. Kellar, 18 Iowa, 59 ; Pesterfield v. Vlckers, 3 Cold. avis (C. C.) 132 Fed. 629. But see Railroad and Tele- phone Cos. V. Board of Equalizers of Tennessee (C. C.) 85 Fed. 302. See "Gon- stitutional Law," Dec. Dig. (Key No.) § 229; Cent. Dig. § 685; "Taxation," Dec. Dig. (Key No.) § 40; Cent. Dig. §§ 79, 80. 8 Western Union Tel. Co. v. Indiana, 165 U. S. 304, 17 Sup. Ct. 345, 41 L. Ed. 725. But see King v. Hatfield (C. C.) 130 Fed. 564. See "Constitutional Law," Dec. Dig. (Key No.\ § S29; Gent. Dig. § 685; "Taxation," Deo. Dig. (Key No.) § 40; Gent. Dig. §§ 84, 87. 554 CIVIL BIGHTS AND THEIR PROTECTION. (Ch. 18 and oppressive discriminations.'' The same principles apply to special assessments levied to defray the cost of public improvements,"* and to laws taxing inheritances or the devolution of estates.'* The latter will not be held invalid, as in violation of this constitutional require- ment, because they make a distinction between successions or devises to lineal descendants and such as pass to collateral heirs or strangers to the blood,^"" nor because the tax is graduated in proportion to the amount of the inheritance,^"^ nor because estates below a certain value are exempted from the operation of the law.^°^ Competency of Witnesses. It has been held that a state statute providing that no Indian, Mon- golian, or Chinese shall be permitted to give evidence in the courts of the state in favor of or against a white man is not in violation of the federal constitution, even since the thirteenth andl fourteenth amendments. To declare who shall be competent to testify in the state courts was always considered, prior to those amendments, a sub- ject within the legitimate sphere of the state legislatures, and the re- strictions which they impose upon the states relate to substantial per- 97 Raymond v. Chicago Union Traction Co., 207 U. S. 20, 28 Sup. Ot. 7, 52 L,. Ed. 78 ; Nashville, C. & St. L. Ry. Co. v. Taylor (O. C.) 86 Fed. 168. See "Corir stitutional Law," Dec. Dig. (Key No.) § 229; Cent. Dig. § 685; "Taxation," Dec. Dig. (Key No.) § 40; Cept. Dig. §§ 68-103. 9 8 Cleveland, C, C. & St. L. R. Co. v. Porter. 210 U. S. 177, 28 Sup. Ct. 647, 52 L. Ed. 1012 ; Lombard v. West Chicago Park, 181 U. S. 33, 21 Sup. Ct. 507, 45 L. Ed. 731 ; Ross v. Kendall, 183 Mo. 838, 81 S. W. 1107 ; Corrigan v. Kan- sas City, 211 Mo. 608, 111 S. W. 115 ; In re Water Front in City of New York, 190 N. T. 350, 83 N. E. 299, 16 L. R. A. (N. S.) 335. See "Constitutional Law," Dec. Dig. (Key No.) § 233; Cent. Dig. § 689; "Municipal Corporations," Dec. Dig. (Key No.) § 407; Cent. Dig. § 104. »9Blackstone.v. Miller, 188 TJ. S. 189, 23 Sup. Ct. 277, 47 L. Ed. 439; Orr V. Oilman, 183 U. S. 278, 22 Sup. Ct. 213, 46 L. Ed. 196 ; Humphreys v. State, 70 Ohio St. 67, 70 N. E. 957, 65 L. R. A. 776, 101 Am. St. Rep. 888. See "Con- stitutional Law," Dec. Dig. (Key No.) § 229. 100 Campbell v. California, 200 U. S. 87, 26 Sup. Ct. 182, 50 L. Ed. 382; Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 18 Sup. Ct. 594, 42 L. Ed. 1037 ; Billings v. Illinois, 188 U. S. 97, 23 Sup. Ct. 272, 47 L. Ed. 400. See Constitutional Law," Dec. Dig. (Key No.) § 229. 101 Nunnemacher v. State, 129 Wis. 190, 108 N. W. 627, 9 L. R. A. (N. S.) 121. See "Constitutional Law," Dec. Dig. (Key No.) § 229. 102 Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 18 Sup. Ct 594, 42 L. Ed. 1037. But see Black v. State, 113 Wis. 205, 89 N. W. 522, 90 Am. St. Rep. 853. See "Constitutional Law," Dec. Dig. (Key No.) % 229, § 209) EQUAL PROTECTION OF THE LAW. 555 sonal rights of liberty and property, and do not extend to mere rules of evidence.^*^ Right to Labor. < But a state statute providing that no corporation organized under its laws shall directly or indirectly, in any capacity, employ any Chinese or Mongolian laborer, is unconstitutional. For the right to labor is clearly included within the scope of those rights which the amend- ment is designed to secure.^"* Discriminations against Colored Citizens. It is to be carefully borne in mind that it is not identity of rights and privileges which this amendment guaranties, but equality. Hence, for example, while it would not be competent for the legislature of a state, in establishing and prescribing regulations for the public schools, to exclude negro children from the beneiit of the public school system on account of their color only,^*"" yet the state may establish separate public schools for colored children, and require them to at- tend those schools or none, provided the accommodations, advantages, and opportunities, and the relative appropriation of the public funds for their support, are in all respects equal to those provided for white children.^"* 10 3 People V. Brady, 40 Cal. 198, 6 Am. Eep. 604. And see Li Sing v. Unit- ed States, 180 U. S. 486, 21 Sup. Ct. 449, 45 L. Ed. 634. See "Constitutional Law," Dec. Dig. (Key No.) § 223; Cent. Dig. § 720. 10* In re Parrott, 6 Sawy. 349, 1 Fed. 481. See "Constitutional Loajo" Dec. Dig. (Key No.) § 2S8; Cent. Dig. § 689. lOB Davenport v. Cloverport (D. C.) 72 Fed. 689. See "Constitutional Law," Dec. Dig. (Key No.) § 220; Cent. Dig. § 723. 108 Claybrook v. City of Owensboro (D. C.) 16 Fed. 297; McMillan v. S'^hool Committee of DIst. No. 4, 107 N. C. 609, 12 S. E. 330, 10 L. R. A. 823 ; Knox V. Board of Education, 45 Kan. 152, 25 Pac. 616, 11 L. R. A. 830; Dallas v. Fosdick,-40 How. Prac. (N. Y.) 249; State v. Gray, 93 Ind. 303; Maddox v. Neal, 45 Ark. 121, 55 Am. Rep. 540 ; Lehew v. Brummell, 103 Mo. 546, 15 S. W. 765, 11 L. R. A. 828, 23 Am. St. Rep. 895 ; Chrisman v. City of Brookhaven, 70 Miss. 477, 12 South. 458 ; Cumming v. County Board of Education, 175 U. S. 528, 20 Sup, Ct. 197, 44 L. Ed. 262; State v. Maryland Institute :#or the Promotion of Mechanic Arts, 87 Md. 643, 41 Atl. 126 ; Cory v. Carter, 48 Ind. 327, 17 Am. Rep. 738 ; Reynolds v. Board of Education of City of Topeka, 66 Kan. 672, 72 Pac. 274 ; Berea College v. Commonwealth, 123 Ky. 209, 94 S. W. 623, 29 Ky. Law Rep. 284, 124 Am. St. Rep. 344 ; Lowery v. Board of Graded School Trustees In Town of Kernersville, 140 N. C. 33, 52 S. E. 267 ; Martin V. Board of Education, 42 W. Va. 514, 26 S. E. 348. See "Constitutional Law," Dec. Dig. (Key No.) § 220; Cent. Dig. § 723. 556 CIVIL EIGHTS AND THEIR PEOTECTION. (Ch.18; Any state statute which denies to colored citizens the right or priv- ilege of participating in the administration of the laws by serving on. grand or petit juries, because of their race or color, is a discriminatioa against them which is forbidden by the fourteenth amendment."' And it is equally a violation of the constitution where a discrimina- tion of this kind is brought about, not by the law itself, but by the act of the officers charged with the duty of selecting, summoning, and impaneling juries, when they purposely exclude negroes from jury service, who would be available and competent for that purpose,"' or by the rulings of the courts."' But a mixed jury in any particular case is not essential to the equal protection of the laws. It is a right to which any colored man is entitled that, in the selection of jurors to- pass upon his life, liberty, or property, there shall be no exclusion of his race and no discrimination against them because of their color. But that is a different thing from a right to have a jury composed in part of colored men.^^" It is lawful for a railroad company, or other common carrier, tO' provide separate carriages or other separate accommodations for dif- ferent classes of patrons, where the distinction is founded on some reasonable ground and there is no invidious discrimination against any, and there are equally desirable accommodations for all who pay at the same rate. Thus a distinction may be made, in railroad cars 107 Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 6G4; Ex parte Vir- ginia, 100 U. S. 339, 25 L. Ed. 676 ; Williams v. Mississippi, 170 U. S. 213, la Sup. Ct. 583, 42 L. Ed. 1012; Miller v. Commonwealth, 127 Ky. 387, 105 S. W. 899, 32 Ky. Law Rep. 249. See "Constitutional Law," Dec. Dig. (Key Ifo.y § 221; Cent. Dig. § 724- 108 Carter v. Texas, 177 U. S. 442, 20 Sup. Ct. 687, 44 L. Ed. 839; Martin V. Texas, 200 U. S. 316, 26 Sup. Ct. 338, 50 L. Ed. 497 ; Tarrance v. State, 4a Fla. 446, 30 South. 685 raffirmed Tarran ce t. Florida. 1SS TT. S. 519,. 23 Sup. Ct. 402, 47 L. Ed. 572) ; Montgomery v. State, 55 Fla. 97, 45 South. 879 ; Far- row V. State, 91 Miss. 509, 45 South. 619 ; Smith v. State, 42 Tex. Cr. R. 220, 58 S. W. 97. See "Constitutional Law," Dec. Dig. (Kty No.) § S21; Cent. Dig. %72l 109 Rogers V. Alabama, 192 U. S. 226, 24 Sup. Ct. 257, 48 L. Ed. 417. See "Constitutional Law," Dec. Dig. (Key No.) § 221; Cent. Dig. § 72^. 110 Virginia v. Rives, 100 U. S. 313, 25 L. Ed. 667;, Neal v. Delaware, 103 U. S. 370, 26 I>. Ed. 567 ; Eastllng v. State, 69 Ark. 189, 62 S. W; 584 ; Mont- gomery V. State, 55 Fla. 97, 45 South. 879 ; State v. Brownfield, 60 S. C. 509,. 39 S. E. 2t Bullock v. State, 65 N. J. Law, 557, 47 Atl. 62, 86 Am. St. Rep. 668 ; Fugett v. State, 45 Tex. Cr. R. 313, 77 S. W. 461. See "Constitutionat Law," Dec. Dig. (Key No.) § 221; Cent. Dig. §§ 724. § 209) EQUAL PROTECTION OP THE LAW. 557 •and waiting rooms, between men and women or between negroes and white people.^^^ A statute declaring the intermarriage of a negro and a white person illegal, or a nullity, or a felony, is not inconsistent with, or repugnant ito, the provisions of the fourteenth amendment. Such a law cannot be said to deny to any person the equal protection of the laws.^^^ And the same is true of an act providing a greater punishment for adultery between a white person and a negro than for adultery between those ■of the same race. This is not a discrimination against any particular race, but simply provides a penalty for an offense which could only ■exist when the parties were of different races.^^* Foreign Corporations. This provision does not prohibit a state from imposing an annual license tax, or other conditions, upon the admission of foreign cor- porations to do business within its limits. The reason is that the ^'person" to whom the equal protection of the laws is guarantied must be "within the jurisdiction" of the state. A corporation is a person and may fulfill this requisite. But a foreign corporation, seeking to do business within the state, is not "within the jurisdiction" until it has complied with the conditions imposed by the state as a pre-requisite to the right of such corporations to enter its field. Until this is done, therefore, the corporation cannot claim the benefit of the equal pro- tection of the state's laws.^^* But a foreign corporation once lawfully 111 Plessy v. Ferguson, 163 tJ. S. 537, 16 Sup. Ct. 1138, 41 L. Ed. 256; Ilouck V. Southern Pac. R. Co. (C. O.) 38 Fed. 226 ; The Sue (D. C.) 22 Fed. 843 ; Logwood V. Memphis & C. R. Co. (C. C.) 23 Fed. 318; Murphy v. Western & A. R. R. (C. C.) 23 Fed. 637 ; Chicago & N. W. Ry. Co. v. Williams, 55 111. 185, 8 Am. Rep. 641; Britton v. Atlantic & C. A. L. Ry. Co., 88 N. C. 536, 43 Am. Rep. 749 ; Patterson v. Taylor, 51 Fla. 275. 40 South. 493 ; Ohio Valley Ry.'s Receiver v. Lander, 104 Ky. 431, 47 S. W. 344, 20 Ky. Law Rep. 913 ; Chesa- peake & O. Ry. Co. V. Commonwealth, 21 Ky. Law Rep. 228, 51 S. W. 160; Morrison v. State, 116 Tenn. 534, 95 S. W. 494. But see State v. Patterson, 50 Fla. 127, 39 South. 398. See "Constitutional Law," Dec. Dig. (Key No.) § 218; Cent. Dig. § 715. 112 State V. Bell, 7 Baxt. (Tenn.) 9, 32 Am. Rep. 549; Francois v. State, 9 Tex. App. 144 ; Dodson v. State, 61 Ark. 57, 31 S. W. 977 ; State v. Hairston, 63 N. C. 451. See "Constitutional La/w," Dec. Dig. (Key No.) §§ 206, 215; Cent. Dig. §§ 6^5, 716. 113 Pace V. Alabama, 106 U. S. 583, 1 Sup. Ct. 637, 27 L. Ed. 207. See '•Con- stitutional Law," Dec. Dig. (Key No.) § Z2S; Cent. Dig. § 722. 114 Pembina Consol. Silver Mln. & Mill. Co. v. Pennsylvania, 125 U. S. 181, 8 Sup. Ct. 737, 31 L. Ed. 650 ; Fire Ass'n of Philadelphia v. New York, 119 U. 558 CIVIL RIGHTS AND THEIR PROTECTION. (Ch. IS within the state cannot be subjected to unreasonable discriminations.. Hence a statute which provicks for the forfeiture of a foreign cor- poration's right to do business in the state, or for a cancellation of its license, if it shall bring a suit in a federal court, or remove to such court a suit brought against it, denies it the equal protection of the laws and is invalid.^^" RIGHT TO CHOOSE OCCUPATION. 210. The rigbt of every man to choose his own occupation, profession^ or employment, thongh not expressly guarantied hy the consti- tutions, is included in the right to liberty and the pursuit of happiness. 211. But,^for the welfare of society, the conduct of certain Kinds of business, or the qualifications of those who shall be allowed to pursue them, may be regulated by the state in the exercise of' the police power. 212. In many of the states, the constitutions forbid the grant of mo- nopolies or exclusive privileges. "Among these inalienable rights, as proclaimed in that great docu- ment [the Declaration of Independence], is the right of men to pur- sue their happiness, by which is meant the right to pursue any law- ful business or vocation in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give them their highest enjoyment. The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all commu- nities from time immemorial, must therefore be free in this country tO' all alike upon the same conditions. The right to pursue them, without let or hindrance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens S. HO, 7 Sup. Ct. 108, 30 L. Ed. 342; Norfolk & W. R. Co. v. Pennsylvania,. 136 U. S. 114, 10 Sup. Ct. 958, 34 L. Ed. 394 ; Blake v. McClung, 172 U. S. 239, 19 Sup. Ct. 165, 43 L. Ed. 432; Merchants' Nat. Bank of Lafayette, Ind., v^ Ford, 124 Ky. 403, 99 S. W. 260, 30 Ky. Law Rep, 558 ; Attorney General v. A. Booth & Co., 143 Mich. 89, 106 N. W. 868 ; Roeder v. Robertson, 202 Mo. 522,. 100 S. W. 1086. See "Gonstitutional Law," Dec. Dig. {Key No.) §§ 206, 210,. 230; Gent. Dig. §§ 621, 680, 687. 115 Chicago, R. I. & P. R. Co. v. Swanger (C. C.) 157 Fed. 783; Seaboard Air Line R. Co. v. Railroad Commission of Alabama (C. C.) 155 Fed. 792. See "Constitutional Law," Deo. Dig. (Key No.) §§ 210, 230; Cent. Dig. §§ 680^ 681. §§ 210-212) RIGHT TO CHOOSE OCCUPATION. 55i> of the United States, and an essential element of that freedom which they claim as their birthright." ^^' To secure this right, it is neces- sary that there should be no distinction or discrimination, in the laws of the state, as to the persons who may pursue given callings, except such as may be founded on and justified by the power of police. The rights of all citizens in this matter are equal. No discrimination, for instance, could lawfully be made between citizens founded solely on race or color. But the state, as above remarked, may limit the right of employment so far as may be necessary in the exercise of the police power. This principle has been fully explained in the chapter specially devoted to that power of the government, and the reader is referred thereto for more specific details. A part of the right to choose one's occupation is the right to be free from unlawful interference or control in the conduct of it. But here, as before, we find the state invested with a certain regulative power which is to be exercised for the benefit of the whole community. This also has been explained in the chapter just referred to. More- over, in respect to some few occupations, either immemorial custom or the necessities of society have given to the state the right to regulate them in respect to other matters than the right to engage in them and the fixing of charges. This is true, for example, of common carriers and of innkeepers.^^^ 110 Butchers' Union Slaughterhouse & L. S. L. Co. v. Crescent City Live Stock Landing & S. H. Co., Ill U. S. 746, 4 Soip. Ct. 652, 28 L. Ed. 585, opin- ion of Field, J. And see Leep v. St. Louis, I. M. & S. Ry. Co., 58 Ark. 407, 25 S. W. 75, 23 L. R. A. 264, 41 Am. St. Rep. 109 ; Landberg v. City of Chicago, 237 111. 112, 86 N. E. 638, 21 L. R. A. (N. S.) 830, 127 Am. St. Rep. 319 ; People- V. Steele, 231 111. 340, 83 N. E. 236, 14 L. R. A. (N. S.) 361, 121 Am. St. Rep. 321 ; City of New Orleans v. Murat, 119 La. 1093, 44 South. 898 ; Brennan V. United Hatters of North America, Local No. 17, 73 N. J. Law, 729, 65 Atl., 165, 9 L. B. A. (N. S.) 254, 118 Am. St. Rep. 727 ; People v. Rosenberg, 59 Misc. Rep. 342, 112 N. T. Supp. 316; Wyeth v. Board of Health of City of Cam- bridge, 200 Mass. 474, 86 N. E. 925, 128 Am. St. Rep. 439. For the application of these principles to corporations, particularly foreign corporations, see Orient Ins. Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. 281, 43 L. Ed. 552. See "Constitutional Law," Dec. Dig. (Key No.) §§ 87, -88, 128, 129; Cent. Dig. §§■ 16i, 165, 169, 372, 410. 117 Chicago, B. & Q. R. Co. v. Iowa, 94 U. S. 155, 24 L. Ed. 94; Decuir v. Benson, 27 La. Ann. 1 ; Schouler, Bailm. § 318 ; Hale, Bailm. & Carr. 274-277. See "Constitutional Law," Dec. Dig. (Key No.) §§ 129, 208; Cent. Dig. §§ aS4, 560 CIVIL EIGHTS AND THEIR PROTECTION. (Ch. 18 Monopolies. Although some of the British sovereigns claimed the right to grant monopolies and special privileges, and derived a large part of their revenue, from the sale of such concessions, grossly infringing the lib- erties of the subject and demoralizing various branches of commerce thereby, the courts always maintained that such grants were illegal by the common law, and finally this branch of the royal prerogative was very materially curtailed by an act of parliament.^^^ The grant of •exclusive privileges with respect to any business or occupation to one man or set of men is necessarily in conflict with the constitutional right ■of all others to choose their own pursuits, and is, in this country, very generally prohibited. In a well-known case before the supreme court -of the United States, three of the judges expressed the opinion that a grant by a state legislature of a monopoly in any of the ordinary and common trades or callings would be void under the federal constitu- tion ; for it would violate the provisions of the fourteenth amendment by abridging the privileges and immunities of citizens of the United States, and depriving them of a portion of their liberty (the right to pursue their happiness in the prosecution of a lawful calling) without due process of law, and denying to them the equal protection of the laws/^° But this has never been the opinion of a majority of the 118 "During the reign of Elizabeth, It was the policy of the crown to raise as little revenue as possible by direct taxation, and as much as possible by the sale of monopolies. In the forty-fourth year of her reign [1601] the burdens "borne by the nation through this method of indirect taxation had become so intolerable that they produced an outbreak in parliament." McKeever v. TJ. S., 14 Ct. CI. 418. Thereupon the queen made some concessions and allayed the popular complaints. But in the next year (1602) the Case of Monopolies (Darcy v. Allein, 11 Coke, 84b) came up. In this case the plaintiff claimed under letters patent from the crown granting to him the sole and exclusive Tight to make, import, and sell playing cards for a period of twelve years. It was unanimously resolved by the court that the said grant to the plaintiff of the sole making of cards within the realm was utterly void, 'because it was a monopoly and against the common law. And not long afterwards an act of parliament (St. 21 Jac. I., c. 3, § 1) declared all monopolies to be contrary to the laws of the realm, and to be utterly void and of no effect, saving patents for inventions, and except as to patents concerning printing and the manu- facture of saltpetre, gunpowder, cannon, and shot. This statute, it will be ob- served, in its main feature, was only declaratory of the common law. See "Monopolies," Deo. Dig. (Key No.) §§ 1, 2; Cent. Dig. §§ 1, 2; "Oonstitutional Law," Dec. Dig. {Key No.) §§ 89, 205; Cent. Dig. §§ 591-6U. 118 Butchers' Union Slaughterhouse & L. S. L. Co. v. Crescent City Live «tock Landing & S. H. Co., Ill U. S. 746, 763, 4 Sup. Ct. 652, 28 L. Ed. 585. §§ 210-212) EIGHT TO CHOOSE OCCUPATION. 561 court.*^" However this may be, in most of the several states we find restrictions upon the grant or creation of monopolies. In some, the prohibition is leveled against "monopolies and perpetuities" by name, which are declared to be "odious" and forever forbidden. In some the legislature is prohibited from granting to any citizen or class of citizens any "special privileges or immunities which shall not, upon the same terms, belong to all citizens." In others, the constitution con- tains a declaration that "no man or set of men are entitled to exclusive or separate public emoluments or privileges from the community but in considleration of public services." ^"^ But yet there are reasons of public policy which will justify the grant of monopolies (unless specifically prohibited by the constitu- tion) in many cases. Certain kinds of enterprise can be undertaken only by those who are able to command large capital. Certain others can be effectively managed only when the privileges are exclusive. Others again are of little value to the originator unless he may possess a monopoly. If in these cases the business is of such a nature that the community has an interest in its existence, and if the interests of the public can be best subserved by placing the business exclusively in the hands of an individual or corporation, these considerations will justify the closing of that business to all others. ^^^ Thus, for instance. And see Live Stock Dealers' & Butchers' Ass'n v. Crescent City Live Stock Landing & Slaughterhouse Co., 1 Abb. (U. S.) 388, Fed. Cas. No. 8,408. See •'Constitutional Law," Dec. Dig. (Key No.) §§ 128, 129, 205, 206, 2^0; Cent. Dig. §§ 372, 595, 625, 651, 688. 120 See Slaughterhouse Cases, 16 Wall. 36, 21 L. Ed. 394. See "Constitu- tional Law," Dec. Dig. (Key No.) §§ 83, 205, 207, 215, 240, 278; Cent. Dig. §§ 151, 595, 625, 629, 697, 71J,, 802. 121 See Stim. Am. St. Law, §§ 17, 404. Though the constitution prohibits trusts and pools, the legislature may legalize combinations formed, not for the purpose of creating a monopoly, but for obtaining fair and remunerative prices for commodities. Owen County Burley Tobacco Soc. v. Brumback, 128 Ky. 137, 107 S. W. 710, 32 Ky. Law Rep. 916. See "Constitutional Law," Dec. Dig. (Key No.) §§ 205, 206, 2^0; Cent. Dig. §§ 591-6^8, 688-699. 122 See Gordon v. Winchester Building & Accumulating Fund Ass'n, 12 Bush (Ky.) 110, 23 Am. Rep. 713. And see East India Co. v. Sandys, 10 How. St. Tr. 371. In this case (called the "Great Case of Monopolies," and decided In 1683) was sustained the validity of the royal grant to the East India Com- pany of the sole privilege of trading to the East Indies. One of the judges (Wlthlns) said: "A monopoly is no Immoral act, but only against the politic part of our law, which If it happen to be of advantage to the public, as this trade is, then It ceases also to be against the prohibiting part of the law, and so not within the law of monopolies." See, also, Dreyfus v. Boone (Ark.) 114 Bl.Const.L.(3d.Ed.) -30 562 CIVIL RIGHTS AND THEIK PROTECTION. (Ch, 18 a legislative grant of an exclusive right to supply electric light or illuminating gas to a municipality, for lighting the streets and for the use of the inhabitants in general, upon condition of the performance of the service by the grantee, is not a monopoly of the sort against which the constitutional prohibitions are directed.^^^ On the same principle an exclusive privilege to a city to erect and nlaintain a sys- tem of waterworks is not a monopoly; and granting the same exclu- sive privilege for a term of years to a private corporation does not make it one.^=* Again, under proper legislative authority, a city may grant to a street-railroad company the exclusive right to lay and oper- ate its tracks in the streets of the city for a term of years.^^° And S. W. 718. A statute confining the business of buying and selling railroad tickets to the authorized agents of carriers, does not create an unlawful mo- nopoly. People V. Warden of City Prison, 26 App. Dir. 228, 50 N. Y. Supp. 56 ; Jannin v. State, 42 Tex. Or. E. 631, 51 S. W. 1126, 96 Am. St. Rep. 821. See "Constitutional Law," Dec. Dig. (Key No.) § 203; Cent. Dig. §§ 591-62^. 123 New Orleans Gaslight Co. v. Louisiana Light & Heat Producing & Mfg. Co., 115 U. S. 650, 6 Sup. Ot. 252, 29 L. Ed. 516. And see, also. State v. Mil- waukee Gaslight Co., 29 Wis. 460, 9 Am. Rep. 598 ; Crescent City Gaslight Co. V. New Orleans Gaslight Co., 27 La. Ann. 138 ; Louisville Gas Co. v. Citizens' Gaslight Co., 115 U. S. 683, 6 Sup. Ct. 265, 29 L. Ed. 510 ; Saginaw Gaslight Co. V. City of Saginaw (C. C.) 28 Fed. 529 ; Joplin v. Southwest Missouri Light Co., 191 U. S. 150, 24 Sup. Ct. 43, 48 L. Ed. 127 ; Dayenport Gas & Electric Co. V. Davenport, 124 Iowa, 22, 98 N. W. 892 ; Baily v. City of Philadelphia, 184 Pa. 594, 39 Atl. 494, 39 L. R, A. 837, 63 Am. St. Rep. 812 ; Raid v. Trowbridge, 78 Miss. 542, 29 South. 167; Denver v. Hubbard, 17 Colo. App. 346, 68 Pac. 993. Compare State v. Portland Natural Gas Co., 153 Ind. 483, 53 N. B. 1089, 53 L. R. A. 413, 74 Am. St. Rep. 314. See "Constitutional Law," Dec. Dig. (Key No.) § 205j Cent. Dig. § 601; "Monopolies," Dec. Dig. {Key No.) § 6; Cent. Dig. § 5. 124 Bienyille Water Supply Co. v. Mobile, 186 U. S. 212, 22 Sup. Ct. 820, 46 L. Ed. 1132 ; New Orleans Waterworks Co. v. Rivers, 115 U. S. 674, 6 Sup. Ct. 278, 29 L. Ed. 525 ; Bartholomew v. City of Austin, Tex., 85 Fed. 359, 29 C. C. A. 568 ; City of Memphis v. Memphis Water Co.,' 5 Heisk. (Tenn.) 495 ; Atlantic City Waterworks Co. v. Atlantic City, 39 N. J. Eq. 367; Ludington Water-supply Co. v. City of Ludington, 119 Mich. 480, 78 N. W. 558. Compare Thrift V. Town Com'rs of Town of Elizabeth City, 122 N. C. 31, 30 S. E. 349, 44 L. R. A. 427 ; Hartford Fire Ins. Co. v. Houston (Tex. Civ. App.) 110 S. W. 973. See "Constitutional Law," Dec. Dig. (Key No.) § 205; Gent. Dig. § 601; "Monopolies," Dec. Dig. (Key No.) § 6; Cent. Dig. § 5. 125 Des Moines St. R. Co. v. Des Moines B. G. St. Ry. Co., 73 Iowa, 513, 33 N. W. 610; Indianapolis Cable St. R. Co. v. Citizens' St. R. Co., 127 Ind. 369, 24 N. E. 1054, 8 L. R. A. 539. But compare Jones v. Carter, 45 Tex. Civ. App. 450, 101 S. W. 514. See "Street Railroads," Dec. Dig. (Key No.) §§ 29, SO; Cent. Dig. §§ i6, 47. §§ 210-212) BIGHT TO CHOOSE OCCUPATION. 563 the grant of an exclusive right to build and maintain a toll bridge, or a ferry, or a turnpike road is not one of the monopolies reprobated and forbidden by the law.^^' The same is also true of an act giving to a butchering company the exclusive right for a term of years to slaughter cattle for a populous city.^^' And so, a law providing for the granting of permits, to persons of good moral character, who are citizens of the state or county, to sell intoxicating liquors, is not in conflict with the constitutional provisions under consideration.^^" And for somewhat similar reasons it is held that the act of municipal authorities in granting to one person the exclusive right to collect and dispose of garbage in the city, does not create an unlawful mo- nopoly.^^" It has always been considered, from the earliest times, that the granting of patents for inventions and copyrights on books was a case of a lawful and permissible monopoly; and the constitutional provisions do not restrict the proper state or municipal authorities in selecting the text books to be used in the public schools and awarding to one person or corporation the exclusive privilege of supplying them for a term of years.^^" But in all cases it is to be observed that unless 128 St. Joseph Plank Road Co. v. Kline, 106 La. 325, 30 South. 854; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 9 L. Ed. 773. See "Constitutional Law," Dec. Dig. {Key No.) § 205; Cent. Dig. §§ 595, 606; "Ferries," Dec. Dig. (Key No.) § 16; Cent. Dig. §§ SS-ZiO; "Turnpikes and Toll Roads," Dec. Dig. (Key No.) § 9; Cent. Dig. §§ 5, lB-18. 12' Butchers' Union Slaughterhouse & L. S. L. Co. v. Crescent City Live Stock Landing & S. H. Co., Ill U. S. 746, 4 Sup. Ct. 652, 28 L. Ed. 585; Slaughterhouse Cases, 16 Wall. 36, 21 L. Ed. 394. See "Constitutional Law," Deo. Dig. (Key No.) §§ 205, 240; Cent. Dig. §§ 595, 697. 128 Plumb V. Christie, 103 Ga. 686, 30 S. E. 759, 42 L. R. A. 181 ; In re Ruth, 32 Iowa, 250; Thomasson v. State, 15 Ind. 449; Guy v. Board of Com'rs of Cumberland County, 122 N. C. 471, 29 S. E. 771 ; Gorrell v. Mayor, etc., of Newport, 1 Tenn. Ch. App. 120. See "Constitutional Law," Dec. Dig. (Key No.) § 205; Cent. Dig. § 617. 129 state V. Robb, 100 Me. 180, 60 Atl. 874; State v. Orr, 68 Conn. 101, 35 Atl. 770, 34 L. R. A. 279 ; City of Grand Rapids v. De Vries, 123 Mich. 570, 82 N. W. 269. But giving to one individual the sole right to collect ashes aild other such harmless substances in a city is an invasion of the personal rights of the citizens, and in restraint of trade, and unnecessarily creates a monop- oly. Her V. Ross, 64 Neb. 710, 90 N. W. 869, 57 L. R. A. 895, 97 Am. St. Rep. 676. See "Monopolies," Dec. Dig. (Key No.) §§ 4, 6; Cent. Dig. §§ 3, 5. isoLeeper v. State, 103 Tenn. 500, 53 S. W. 962, 48 L. R. A. 167; Johnson Pub. Co. v. Mills, 79 Miss. 543, 31 South. 101 ; Rand, McNally & Co. v. Har- tranft, 29 Wash. 591, 70 Pac. 77. See "Constitutional Lato," Dec. Dig. (Key No.) §§ 128, 205; Cmt. Dig. §§ 372-379, 621; "Monopolies," Dec. Dig. (Key No.) §3. S64 CIVIL RIGHTS AND THEIR PROTECTION. (Ch. 18 a grant or contract is expressly made exclusive it will not be so con- strued except by unavoidable implication arising from the terms used.^'^ The power to grant monopolies does not appertain to a municipal corporation unless upon express grant. "A municipal corporation can grant, if at all, exclusive privileges for the protection of business which, without prohibitory legislation, would be free to all men, only under express legislative grant of power. Monopolies being preju- dicial to the public welfare, the courts will not infer grants thereof, refusing to presume the' existence of legislative intention in conflict with public policy." ^'^ Special Privileges or Immunities. In some states the constitutions declare that no men are entitled to exclusive or separate emoluments or privileges but in consideration of public services ; ^^* in others, that the legislature must not grant to any citizen or class of citizens privileges or immunities which shall not equally belong to all citizens on the same terms. This declaration ap- plies only to such things as are of common right, and the requirement of the constitution is satisfied where there is no manifest intent to discriminate in favor of a particular class of citizens to the exclusion 131 Brummltt v. Ogden Waterworks Co., 33 Utah, 289, 93 Pae. 828; Capitol City Light & Fuel Co. v. City of Tallahassee, 42 Pla. 462, 28 South. 810; ■Charles River Bridge v. Warren Bridge, 11 Pet. 420, 9 L. Ed. 773. See "Mo- nopolies," Dec. Dig. (Key No.) § i; Cent. Dig. § J; "Constitutional Law," Dec. Dig. (Key No.) § 128; Cent. Dig. §§ 372-379. 132 Logan V. Pyne, 43 Iowa, 524, 22 Am. Rep. 261. And see Davenport v. Kleinschmidt, 6 Mont. 502, 13 Pac. 249; City of Hudson v. Thorne, 7 Paige (N. Y.) 261 ; State v. Cincinnati Gaslight & Coke Co., 18 Ohio St. 262 ; Sagi- naw Gaslight Co. V. City of Saginaw (C. C.) 28 Fed. 529 ; Mintum v. Larue, 23 How. 435, 16 L. Ed. 574 ; Citizens' Gas & Mining Co. v. Town of Elwood, 114 Ind. 332, 16 N. E. 624; Carroll v. Campbell, 108 Mo. 550, 17 S. W. 884; City of Danville v. Noone, 103 111. App. 290 ; Territory v. De Wolfe, 13 Okl. 454, 74 Pac. 98. See "Municipal Corporations," Dec. Dig. (Key No.) § 686; Cent. Dig. §§ U8S-US5; "Monopolies," Dec. Dig. {Key No.) §§ 1, 2; Cent. Dig. §§ I 2. 138 For example Va. Bill of Rights 1869, art. 1, § 6. This was intended to guard against the evils endured under a government of hereditary magis- trates and rulers, and has no reference to the private relations of the citizens, or to the action of the legislature in passing laws regulating the domestic policy and business affairs of the people. Smoot v. People's Perpetual Loan & Building Ass'n, 95 Va. 686, 29 S. B. 746, 41 L. R. A. 589. See "Constitutional LoAJO," Dec. Dig. (Key No.) §§ m-W ; Cent. Dig. §§ 591-648. §§ 210-212) BIGHT TO CHOOSE OCCUPATION, 565 of others similarly circumstanced.^'* Corporations may be within the benefit or the prohibition of such constitutional provisions, if ex- pressly named, but not otherwise, and these declarations are not under- stood as including municipalities.^'^ The sale of intoxicating liquors is not a privilege exercisable as of common right, and hence there is no constitutional objection, on this ground, to restrictive licensing laws.^'° Nor do these constitutional provisions forbid the enactment of laws giving liens to mechanics and materialmen,^" or laws designat- ing certain medical societies from whose members boards of medical examiners are to be selected,^'* or laws giving a preference, in re- spect to public employment, to honorably discharged soldiers and sailors.^'* But on the other hand, the legislature cannot grant to any person or class of persons an exclusive right of fishing in the public waters of the state; ^*"' or an exclusive right to collect waste paper and other refuse from the streets of a city.^*^ And it is held that 184 Indianapolis Cable St R. Co. v. Citizens' St. E. Co., 127 Ind. 369, 24 N. B. 1054, 8 li. R. A. 539 ; State v. Riehcreek, 167 Ind. 217, 77 N. E. 1085, 5 L. R. A. (!n. S.) 874, 119 Am. St. Rep. 491. The legislature has no power to ex- empt any particular person or corporation from the operation of the general laws of the state, or to impose special conditions or limitations on rights of action against a particular person or corporation. Milton v. Bangor E. & Electric Co., 103 Me. 218, 68 Atl. 826, 15 L. R. A. (N. S.) 208, 125 Am. St. Rep. 293. iS'ee "Constitutional Law," Dec. Dig. {Key No.) §§ 205-207; Cent. Dig. §§ 591-648. 13 6 Chicago, R, I. & P. R. Co. v. State, 86 Ark. 412, 111 S. W. 456; State v. Caffery, 49 La. Ann. 1152, 22 South. 756; Anglo-Californian Bank v. Field, 146 Cal. 644, 80 Pac. 1080. See "Constitutional Laic," Dec. Dig. (Key No.) §§ 205-207; Cent. Dig. §§ 591-648. ^ 138 Hall v. Dunn (Or.) 97 Pac. 811. See "Constitutional Law," Dec. Dig. {Key No.) §§ 205-207; Cent. Dig. §§ 617, 631. 13 r Smalley v. Gearing, 121 Mich. 190, 79 N. W. 1114. See "Constitutional Law," Dec. Dig. (Key No.) §§ 2^4, 300; Cent. Dig. §§ 710, 740. 13 8 In re Campbell's Registration, 197 Pa. 581, 47 Atl. 860. See "Constitu- tional Law," Dec. Dig. (Key No.) § 205. 139 Shaw v. City Council of Marshalltown, 131 Iowa, 128, 104 N. W. 1121, 10 L. R. A. (N. S.) 825 ; State v. Addison, 76 Kan. 699, 92 Pac. 581 ; Goodrich V. Mitchell, 68 Kan. 765, 75 Pac. 1034, 64 L. R. A. 945, 104 Am. St. Rep. 429. But see State v. Garbroski, 111 Iowa, 496, 82 N. W. 959, 56 L. R. A. 570, 82 Am. St Rep. 524. See "Constitutional Law," Dec. Dig. (Key No.) § 205. 14 Sllngerland v. International Contracting Co., 43 App. Div. 215, 60 N. T. Supp. 12; Hume v. Rogue River Packing Co., 51 Or. 237, 92 Pac. 1065. See "Constitutional Law," Dec. Dig. (Key No.) § 205. 1" People V. Clean St. Co., 225 111. 470, 80 N. E. 298, 9 L. R. A. (N. S.) 455, 116 Am. St Rep. 156. See "Constitutional Law," Deo. Dig. (Key No.) § 205. 566 CIVIL EIGHTS AND THEIR PROTECTION. (Ch. 18 these constitutional provisions are violated by a primary election law which does not embrace all the political parties,^*' and by an act creating a juvenile court which arbitrarily classifies all citizens into those over and those under sixteen years of age."» FREEDOM or CONTRACT. 213. Tie right of free contract is one of the natural rights of personal liberty and is also a property right, and is fully protected by the federal and state constitutions.!^^ This right, important and valuable as it is, is nevertheless restricted by several constitutional provisions, as, for instance, that which gives to congress control over foreign and interstate commerce, and under which it may prohibit private contracts which operate in restraint of such commerce.^*^ State legislatures have also the power to define and establish the public policy of the state, and may forbid or denounce contracts contrary thereto, as is seen in the case of laws prohibiting stock gambling or dealing in options,^^® in the usury laws,^*' and those which .forbid the loaning of money to pay another person's poll tax to enable him to vote.'^** Further, a very important limitation 142 Britton v. Board of Election Com'rs, 129 Cal. 33T, 61 Pae. 1115, 51 L. B. A. 115. See "Constitutional Law,". Deo. Dig. {Key No.) § 205. 143 Mansfield's Case, 22 Pa. Super. Ct. 224. See "Constitutional Law," Deo. Dig. (Key No.) § 205. 1*4 Charles J. Off & Co. v. Morehead, 235 111. 40, 85 N. E. 264, 20 L. R. A. (N. S.) 167, 126 Am. St. Rep. 184 ; People v. Steele, 231 111. 340, 83 N. B. 236, 14 L. R. A. (N. S.) 361, 121 Am. St. Rep. 321 ; State v. Associated Press, 159 Mo. 410, 60 S. W. 91, 51 L. R. A. 151, 81 Am. St. Rep. 368 ; Potts v. Riddle (Ga. App.) 63 S. E. 253 ; Stewart v. Gardner, 30 Ohio Cir. Ct. R. 218. See "Con- stitutional Law," Dec. Dig. (Key No.) §§ 87, S9, 296; Gent. Dig. § 151. 145 Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 20 Sup. Ct. 96, 44 L. Ed. 136; United States v. Northern Securities Co. (C. C.) 120 Fed. 721. See "Commerce," Dec. Dig. (Key No.) § 3; Cent. Dig. 1 3. 146 Booth V. Illinois, 184 U. S. 425, 22 Sup. Ct. 425, 46 L. Ed. 623 ; Otis v. Parlser, 187 U. S. 606, 23 Sup. Ct. 168, 47 L. Ed. 323. See "Constitutional Law," Dec. Dig. (Key No.) § 89; Cent. Dig. § 157. 147 People V. Ronner, 48 Misc. Rep. 436, 95 N. Y. Supp. 518; Id., 110 App. Div. 816, 97 N. Y. Supp. 550; Id., 185 N. Y. 285, 77 N. E. 1061; Adler & Sons Clothing Co. v. Corl, 155 Mo. 149, 55 S. W. 1017. See "Constitutional Law," Dec. Dig. (Key No.) § 89; Cent. Dig. § 15t. 148 Solon V. State, 54 Tex. Cr. App. 261, 114 S. W. 349. See "Constitutional Law," Dec. Dig. (Key No.) §§ 81, 82, 89, 258. § 214) MAKRIAGE AND DIVOKCE. 567 upon the right of contract is found in the police power of the state, under which laws may be enacted for the protection of the public safety, health, and morals, regardless of their effect on private con- tracts.^" And although it is the duty of the courts, in recognition of this right, to enforce private contracts as the parties have made them, they have always refused (and particularly the courts of equity) to give effect to unconscionable barga:ins."" MARRIAGE AND DIVORCE. 214, The right to enter into the relation of marriage is a natural right. But in the interests of society, it may be regulated, and to a proper extent limited, hy laxr. For the same reason, the dissolution of the marriage relation, during the life of the par- ties, can take place only in accordance urith general public laivs. Marriage is not a mere contract, but it creates a status. It is for the interest of the state that marriages should take place and be fruit- ful, but not that they should be had between unfit persons or those who would be likely to inflict upon the community a helpless, feeble, or demoralized progeny. For this reason, it is competent for the state to prohibit the intermarriage of persons standing in a near degree of consanguinity, persons who have not attained a sufficient age, and those who are mentally afflicted or diseased.^"^ Moreover, while it would probably not be competent for the state to require any particu- lar religious form or ceremony to be observed in the formation of the marriage relation, it is undoubtedly proper to establish such rules (as to the obtaining of a license, the registration of marriages, and the like,) as will tend to guard against improvidence in assuming the re- sponsibilities of that estate, and against fraud, and also to secure pub- licity, certainty, and official evidence. And since marriage is not a mere civil contract, it follows that it cannot be dissolved at the will of the i49.Craig V. United States Health & Accident Ins. Co., 80 S. O. 151, 61 S. E. 423, 18 L. R. A. (N. S.) 106, 128 Am. St. Rep. 877. And see generally, supra, chapter XIV, on the "Police Power." See "Constitutional Laio" Dec. Dig. (Key No.) § 89. \ 150 Bond V. Sandford, 134 Mo. App. 477, 114 S. W. 570. See "Constitutional Law," Dec. Dig. (Key No.) § 89. iBi As to the validity of laws prohibiting the marriage of epileptics, see Gould V. Gould, 78 Conn. 242, 61 Atl. 604, 2 L. R. A. (N. S.) 531. See "Con- stitutional Law," Dec. Dig. (Key No.) § 86; Cent. Dig. § 155. 568 CIVIL EIGHTS AND THBIE PROTECTION. (Ch. 18 parties. The interest which the state has in this status, and in its pres- ervation, gives it the right to prescribe general and uniform laws enu- merating the causes for which divorces may be granted and regulating the procedure thereon. SUMPTUARY LAWS. 215. Sumptuary laws, in general, are not only utterly foreign to the spirit of our institutions, but they are inconsistent irith the guaranties of personal liberty and the right of property. Iiaws partaking of the nature of sumptuary laws, however, may be passed in the lawful exercise of the police power of the state. Sumptuary laws are laws made for the purpose of restraining luxury or extravagance, particularly against inordinate expenditures in the matter of apparel, food, furniture, etc. They are odious in character, and contrary to the principle of liberty which assures to each the right to so use and dispose of his own property as shall seem best to him, provided he does not infringe upon the rights of others. Very few instances of an attempt to make or enforce such laws are recorded in our judicial annals. But the police power of the state authorizes it to enact laws which shall restrain the citizen from making such use of his property or his liberty as may be injurious to the public safety, health, or morals. For instance, the restrictions upon the manufacture and sale of intoxicants, if they are to be regarded as in any sense sumptuary laws, are nevertheless valid as madte in the exercise of this power. EDUCATION. 216. In most of the American states, the right to acquire education is recognized by the constitutions as a civil right, which it is the dnty of the state to preserve and protect. This rgcognition of the right of education is effected by provisions in the constitutions declaring that, as the general diffusion of knowl- edge and intelUgence is essential to the preservation of the rights and liberties of the people, it shall be the duty of the legislature to en- courage the promotion of learning, or by similar provisions.^" Al- iBS But in New Xork it is said that the right to be educated in the common schools is not a constitutional right,, but one derived entirely from legislation, and as such it is subject to such limitations as the legislature may from time to time see fit to make. Dallas t. Fosdick, 40 How. Ptac. (N. Y.) 249. See § 216) EDUCATION. 569 most without exception, the state constitutions require the legislature to provide a system of free schools, and in many of the states a school fund is provided by the constitution to be used for that purpose. In eighteen of the states, the constitution provides for a state univer- gjjy_iB3 gyt, as 3. Tulc, thcsc instruments also provide that no public money shall ever be appropriated for the support of any sectarian or denominational school. In some cases the constitution authorizes the legislature to make laws for the compulsory attendance of children at the public schools. But this would clearly be within the competence of a state legislature, even without direct authorization, at least in so far as to enforce attendance at such schools upon all children whose education was not otherwise provided for.^°* Since the public schools are established by the public and for the benefit of the public, the sys- tem must be equal and impartial and provide the same accommodations and opportunities for all who may be entitled to take the benefit of them, without any distinction or discrimination, except such as may be founded on age or degree of advancement.^ °° A part of the public school system, in this country, consists in the division of the state into separate "school districts," which are in- vested, to a considerable extent, with powers of local self-government, and are regarded as quasi municipal corporations. Money for the support of the schools is raised by general taxation in the several dis- tricts, or throughout the state. To such taxation all property owners are liable, whether or not they have children to be educated at the public expense. The benefit of the public schools is for the state, and not for the individual, and no one can say that he is not benefited thereby, although one may be benefited more directly than another. Sometimes also the state will lend its aid to educational institutions which are not directly under its control, by exempting their property from taxation. In view of the importance to the state of a general "Constitutional La/u>," Dec. Dig. (Key No.) § 220; Cent. Dig. § 723; "Schools and School Districts," Gent. Dig. § 322. 108 Stim. Am. St. Law, p. 11. 104 See State v. Jackson, 71 N. H. 552, 53 Atl. 1021, 60 L. R. A. 739. See '•Constitutional Law," Dec. Dig. (Key No.) § 83. 100 As to the right to exclude from the public schools children who have not been vaccinated, see Viemeister v. White, 179 N. Y. 235, 72 N. E. 97, 70 L, B. A. 796, 103 Am. St. Rep. 859. See "Constitv,tional Law," Dec. Dig. (Key No.) § 85; "Schools ana School Districts," Dec. Dig. (Key No.) § 158; Cent. Dig. S 329. 570 CIVIL EIGHTS AND THEIR PROTECTION. (Ch, 18 diffusion of education, it cannot be said that such exemptions from taxation are an unlawful partiality shown to individuals. DTIE PROCESS OF LAW. 217. By the provisions of the federal constitntion, both the United States and the several states are prohibited from depriving any person of his life, liberty, or property without dne process of lavr. Constitutional Guaranties. The forty-sixth article of Magna Charta declares that "no freeman shall be taken, or imprisoned, or disseised, or outlawed, or banished, or anyways destroyed, nor will we [the king] pass upon him or com- mit him to prison, unless by the legal judgment of his peers, or by the law of the land." This has always been regarded as one of the great safeguards of liberty, and it has been incorporated, as a matter of course, in every American constitution. The language of the clause, as found in these instruments, is not always the same. It is more usual to employ the phrase "due process of law" than that which appears in Magna Charta. But it is well settled, by repeated deci- sions of the courts, that the two terms, "due process of law" and "the law of the land," are of exactly equivalent import.^^' The provision in the fifth amendment to the federal constitution does not apply to the several states or their legislatures, but is a re- striction only on the power of congress, forbidding that body to en- croach upon the liberty or property rights of individuals, save by due process of law, in the exercise of any of its enumerated powers, as for example the power to regulate interstate commerce.^"' But the 156 2 Co. Inst. 50; Millett v. People, 117 111. 294, 7 N. E. 631, 57 Am. Rep. 869 ; Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616 ; Charles J. Off & Co. v. Morehead, 235 111. 40, m N. E. 264, 20 L. R. A. (N. S.) 167, 126 Am. St.. Rep. 184; City of Belleville v. St. Clair County Turnpike Co., 234 111. 428, 84 N. E. 1049, 17 L. R. A. (N. S.) 1071 ; Cleveland, C, C. & St. L. R. Co. v. Backus, 138 Ind. 513, 33 N. E. 421, 18 U R. A. 729. See "Constitutional Law," Dec. Dig. {Key No.) §§ 251-3W; Gent. Dig. §§ 726-9.^9. isr Hunter v. City of Pittsburgh, 207 U. S. 161, 28 Sup. Ct. 40, 52 L,. Ed. 151 ; United States v. Delaware & H. Co., 164 Fed. 215 ; People v. Botkin, 9 Cal. App. 244, 98 Pae. 861 ; Barton v. Kimmerley, 165 Ind. 609, 76 N. E. 250, 112 Am. St. Rep. 252; North Missouri R. Co. v. Maguire, 20 Wall. 46, 22 L. Ed. 287; City of St. Louis v. Richeson, 76 Mo. 470; Pratt Institute v. New York, 99 App. Div. 525, 91 N. Y. Supp. 136. 8cc "Constitutional Law," Dec. § 217) DUE PROCESS OP LAW. 571 corresponding clause in the fourteenth amendment is specifically di- rected to "any state." Similar provisions are also found in many state constitutions, but their effect is in no way different, the words "due process of law" being held to mean exactly the same in whatever con- stitution they may be found.^^* These guaranties are effective not only as against legislative action on the part of a state, but also as applied to the action of its courts, its municipalities, its public officers, and even private persons when they assume to act under color or sanction of a statute.^ ^' But they impose no restraint on the exercise of the police power of the state for the protection of the public safety, health, and morals.^"" Meaning of the Term; Method of Interpretation. In view of the rule that words and phrases, used in constitiitions, which had acquired a settled meaning at common law, are to be un- derstood in their ancient and fixed signification, it is important to in- quire what was the meaning of the phrase "law of the land" in the old English law. At the same time, while the historical interpretation of these words is of value, it is not to be relied on exclusively. Re- gard must be had to the principles of liberty which it was intended to perpetuate. It is true, as stated in Murray's Lessee v. Hoboken Land & Imp. Co.,^*^ that any process, not otherwise forbidden, must be taken to be due process of law if it can show the sanction of settled usage both in E^ngland and this country. But this does not mean that Dig. (Key No.) §§ 119, 251, 254, 297; Cent. Dig. §§ 28S, 727; "Commerce," Dec. Dig. (Key No.) §§ 5, 58; Cent. Dig. §§ 3, 5. 158 In re Fox's Estate, 154 Mich. 5, 117 N. W. 558; McGarvey v. Swan, 17 Wyo. 120, 96 Pac. 697. See "Constitutional Latv," Dec. Dig. (Key No.) §§ 209, 251; Cent. Dig. §§ 678, 726. 159 Owensboro Waterworks Co. v. Owensboro, 200 U. S. 38, 26 Sup. Ct. 249, ■50 L. Ed. 361 ; Central of Georgia R. Co. v. Railroad Commission of Alabama a general notice to all tax payers, given by publication, ad- vising them of the completion of the assessment roll and of the time and place of meeting of the board of equalization or review, and that they may appear and present their objections, is sufficient; ^^^ and 210 Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921, 31 L. Ed. 763 ; United States v. Heinszen, 206 U. S. 370, 27 Sup. Ct. 742, 51 L. Ed. 1098. A reassessment of grossly undervalued property, so as to make It bear the same burden it would have borne if the true assessment had been made in the first instance, does not violate the constitutional requirement of due process of law. Weyerhaueser v. Minnesota, 176 U. S. 550, 20 Sup. Ct. 485, 44 L. Ed. 583. See "Constitutional Law," Dec. Big. (Key No.) § 28i; Cent. Dig. §§ 893-896. 217 Missouri, K. & T. R. Co. of Texas v. Shannon, 100 Tex. 379, 100 S. "W. 138, 10 L. R. A. (N. S.) 681 ; State v. Several Parcels of I^nd, 83 Neb. 13, 119 N. W. 21. See "Constitutional Laio," Dec. Dig. (Key No.) § 284; Cent. Dig. §§ 893-896. 218 Central of Georgia Ry. Co. v. Wright, 207 U. S. 127, 28 Sup. Ct. 47, 52 L. Ed. 134 ; Barber Asphalt Pav. Ck). v. Ridge, 169 Mo. 376, 68 S. W. 1043 ; Godfrey v. Bennington Water Co., 75 Vt. 350, 55 Atl. 654 ; Heth v. Radford, 96 Va. 272, 31 S. E. 8. See "Constitutional Law," Dec. Dig. (Key No.) § 2S^/; Cent. Dig. §§ 893-896. 210 Kentucky Railroad Tax Cases, 115 U. S. 321, 6 Sup. Ct 57, 29 L. Ed. 414 ; State v. Several Parcels of Land, 83 Neb. 13, 119 N. W. 21 ; Kinston v. Loftin, 149 N. C. 255, 62 S. B. 1069. See "Constitutional Law," Dec. Dig. (Key No.) §§ 229, 283; Cent. Dig. §§ 685, 892. 2 20 Notice to corporation as representing Its stockholders, see Corry v. Baltimore, 96 Md. 310, 53 Atl. 942, 103 Am. St. Rep. 364. Sec "Constitutional Laiv," Dec. Dig. (Key No.) § 28i; Cent. Dig. §§ 893-896. 221 Jackson Lumber Co. v. McCrimmon (C. C.) 164 Fed. 759; Chase v. §§ 218-221) DUE PROCESS OF LAW IN EEVENOE CASES. 583 even this may be dispensed with where the amount of the tax is fixed by law and not subject to change or reduction, as in the case of Hcense fees,"^^ or where the proceeding is for the equaUzation of valuations between the different municipal divisions of the taxing district, the board not acting on the individual tax payers.^^' But where a no- tice is required and given, it must afford the tax payer a reasonable time in which to prepare and present his objections; if the time al- lowed is so short as practically to cut off his right of appeal, the pro- ceedings will not constitute due process of law.^^* As to the hearing and contest, there must be something more than a mere opportunity to submit written objections or remonstrances to the board of re- view.^^^ But it is not necessary that the hearing should precede the formal order fixing the amount of the assessment; it is enough if a hearing is given after that step has been taken, or if an opportunity to contest it is accorded in subsequent proceedings for the collection of the tax or in a suit to enjoin its collection.^ ^' Enforcement and Collection of Taxes. Where the statute sets forth the time and circumstances under which lands shall be sold for the delinquent taxes, property owners are bound to acquaint themselves with its provisions, and personal notice to them is not a prerequisite to the validity of the sale.^^^ In the case of non- resident owners, notice may be given by publication in a newspaper,^^* Trout, 146 Cal. 350, 80 Pae. 81 ; Baltimore & O. & C. R. Co. v. Sawvel, 138 Ind. 696, 37 N. E. 1013; Gullfoyle's Ex'r v. Maysville (Ky.) 112 S. W. 666. See "Constitutional Lmo," Dec. Dig. (Key No.) § 28J^; Cent. Dig. §§ 893-896. 222 Hodge V. Muscatine County, 196 U. S. 276, 25 Sup. Ct 237, 49 L. Ed. 477 ; Gundling v. Chicago, 177 U. S. 183, 20 Sup. Ct. 633, 44 L. Ed. 725. See "Constitutional Law," Dee. Dig. (Key No.) § 287; Cent. Dig. §§ 831. 905. 223 Foster V. Rowe, 128 Wis. 326, 107 N. W. 635. See "Constitutional Laic," Dec. Dig. (Key No.) § ?M; Cent. Dig. §§ 893-896. 224 Ballard v. Hunter, 204 U. S. 241, 27 Sup. Ct. 261, 51 L. Ed. 461 ; Bell- Ingham Bay & B. C. R. Co. v. New Whatcom, 172 U. S. 314, 19 Sup. Ct. 205, 43 L. Ed. 460. See "Constitutional Law," Dec. Dig. (Key No.) §§ 284, ^S5j Cent. Dig. §§ 893-896, 899. 225 Londoner v. City and County of Denver, 210 U. S. 373, 28 Sup. Ct. 708, 52 L. Ed. 1103. See "Constitutional Law," Dec. Dig. (Key No.) § 284; Cent. Dig. §§ 893-896. 226 Oskamp v. Lewis (C. C.) 103 Fed. 906; State v. Springer, 134 Mo. 212, 35 S. W. 589; Hacker v. Howe, 72 Neb. 385, 101 N. W. 255. See "Constitu- tional Law," Dec. Dig. (Key No.) § 284; Cent. Dig. §§ 893-896. 227 City of Beatrice v. Wright 72 Neb. 689, 101 N. W. 1039. See "Constitu- tional Law," Dec. Dig. (Key No.) § 285; Cent. Dig. §§ 897-903. 22 8 Ballard v. Hunter, 204 U. S. 241, 27 Sup. Ct. 261, 51 L. Ed. 461 (af- 584 CIVIL EIGHTS AND THEIR PROTECTION. (Ch. 18 and in the case of unknown owners, the lien of taxes may be fore- closed by a proceeding in rem without joining them as parties."' But to sell the property of one person for the payment of another's taxes is not due process of law.^^" Special Assessments for Local Improvements. To authorize the construction of local improvements and to assess the cost thereof, wholly or in part, upon the owners of the property specially benefited, is not taking property without due process of law,''" provided the assessment, in each case, is not substantially in excess of the benefit to accrue to the particular property.^'^ The cost of such an improvement as street paving, laying sidewalks, or the construction of a trunk sewer, may be apportioned among the owners of abutting lots in proportion to their frontage on the street."^* But no such assessment can be made a personal charge upon the owner of the property if a non-resident of the state.''^* The owners of prop- firming 74 Ark. 174, 85 S. W. 232) ; Young v. Jackson (Tex. Civ. App.) 110 S. W. 74. See "Constitutional Law," Deo. Dig. (Key No.) §§ 284, ^85; Cent. Dig. §§ 89S-90S. 22 8 Leigh V. Green, 64 Neb. 533, 90 N. W. 255, 101 Am. St. Eep. 592 (af- firmed, 193 U. S. 79, 24 Sup. Ot. 890, 48 L. Ed. 623) ; King v. Mullins, 171 U. S. 404, 18 Sup. Ct. 925, 43 L. Ed. 214. See "Constitutional Law," Dec. Dig. (Key No.) § 285; Cent. Dig. §§ 891-903. 230 Knoxville Traction Co. v. McMillan, 111 Tenn. 521, 77 S. W. 665, 65 L. R. A. 296. See "Constitutional Law," Deo. Dig. (Key No.) § 2S7; Cent. Dig. §§ 831, 905. 231 Walston V. Nevin, 128 U. S. 578; 9 Sup. Ct. 192, 32 U Ed. 544; Webster V. Fargo, 181 U. S. 394, 21 Sup. Ct. 623, 45 L. B"d. 912 ; Harton v. Town of Avondale, 147 Ala. 458, 41 South. 934 ; Goodricli v. Detroit, 123 Mich. 559, 82 N. W. 255. See "Constitutional Law," Dec. Dig. (Key No.) §§ 288-290; Cent. Dig. i§ 870 875. 2S2Voight V. Detroit, 184 V. S. 115, 22 Sup. Ct. 337, 46 L. Ed. 459; White V. Tacoma (C. C.) 109 Fed. 32 ; Hutcheson v. Storrie, 92 Tex. 685, 51 S. W. 848, 45 L. R, A. 289, 71 Am. St. Rep. 884 ; Barfield v. Louisville, 23 Ky. Law Rep. 1102, 64 S. W. 959. See "Constitutional Law," Deo. Dig. (Key No.) § 290; Cent. Dig. §§ 811-815. 233Tonawanda v. Lyon, 181 U. S. 389, 21 Sup. Ct. 609, 45 L. Ed. 908; Schaef er v. Werling, 188 U. S. 516, 23 Sup. Ct. 449, 47 L. Ed. 570 ; .Taylor v. Crawfordsville, 155 Ind. 403, 58 N. E. 490; Cass Farm Co. v. Detroit, 124 Mich. 433, 83 N. W. 108 ; Franklin v. Hancock, 204 Pa. 110, 53 Atl. 644. But compare Adams v. Shelbyville, 154 Ind. 467, 57 N. E. 114, 49 It. R. A. 797, 77 Am. St. Rep. 484 ; City of Chicago v. Wells, 236 111. 129, 86 N. E. 197, 127 Am. St. Rep. 282 ; Zehnder v. Barber Asphalt Pav. Co. (C. C.) 106 Fed. 103. See "Constitutional Laic," Dec. Dig. (Key No.) § 290; Cent. Dig. §§ 811-815. 234 Dewey v. Des Moines, 173 U. S. 193, 19 Sup. Ct. 379, 43 L. Ed. 665. See •'Constitutional Law," Dec. Dig. (Key No.) § 290; Cent. Dig. §§ 811-815. § 222) DUB PROCESS OF LAW IN EMINENT DOMAIN. 585 erty affected are not constitutionally entitled to notice of the pro- posal or intention to make the improvement in question, or of the fact that it has been ordered; ='=' but at some stage of the proceeding each owner must be accorded notice and an opportunity to contest the justice, validity, or amount of his assessment before it becomes a fixed charge on his property, before some court or board authorized to relieve him in case the assessment is shown to be invalid or incor- ^gj,j. 236 This notice, however, may be such a constructive notice as is appropriate to the nature of the case, and may be a general notice given by publication in a newspaper.^" DUE PROCESS OF I.AW IN EMINENT DOMAIN PROCEEDINGS. ZZ2. In proceedings for the condemnation of private property for pull- lie nse, the constitutional provision for dne process of lavr re- q.nire8 that the ovraei of the property shall have his damages assessed in sonie fair and adequate proceeding, of irhich he shall have notice and in which he shall have an opportunity ta he heard, and that he shall receive just compensation. The requirement of due process of law applies no less to proceed- ings under the power of eminent domain than to any others; but if one's property is taken under condemnation proceedings regularly 235 Goodrich v. Detroit, 184 U. S. 432, 22 Sup. Ct. 397, 46 L. Ed. 627; Seliint- gen V. La Crosse, 117 Wis. 15S, 94 N. W. 84 ; Corrigan v. Kansas City, 211 Mo. 608, 111 S. W. 115; City of Perry v. Davis & Younger, 18 Okl. 427, 90 Pac. 865. See "Constitutional Law," Dec. Dig. (Key No.) § 290; Cent. Dig. §§ 871-875. 236Hibben v. Smith; 191 U. S. 310, 24 Sup. Ct. 88, 48 L. Ed. 195; Road Imp. Dist No. 1 v. Glcver, 86 Ark. 231, 110 S. W. 1031 ; McChesney v. Chicago, 227 111. 450, 81 N. E. 435 ; Job v. Alton, 189 111. 256, 59 N. E. 622, 82 Am. St. Rep. 448; Dyer v. Woods, 166 Ind. 44, 76 N. E. 624; In re Johnson. Drainage Dist., 141 Iowa, 380, 118 N. W. 380; Corcoran v. Board of Alder- men of City of Cambridge, 199 Mass. 5, 85 N. E. 155, 18 L. R. A. (N. S.) 187 ; In re City of New York, 95 App. Div. 552, 89 N. Y. Supp. 6 ; St. Benedict'^ Abbey v. Marion County, 50 Or. 411, 93 Pae. 231 ; Adams v. Roanoke, 102 Va. 53, 45 S. E. 881. See Naylor v. Harrisonville, 207 Mo. 341, 105 S. W. 1074. See "Constitutional Law," Dec. Dig. (Key No.) § 290; Cent. Dig. §§ 871-875. 28 7 Gage V. Chicago, 225 111. 218, 80 N. E. 127; Kansas City v. Duncan, 135 Mo. 571, 37 S. W. 513 ; Hoertz v. JefCerson Southern Pond Draining Co., 119 Ky. 824, 84 S. W. 1141, 27 Ky. Law Rep. 278. See "Constitutional Law," Dec Dig. (Key No.) § 290; Cent. Dig. §§ 871-875. 586 CIVIL EIGHTS AND THEIR PROTECTION. . (Ch. 18 conducted and upon the payment of just compensation, he is not de- prived of it without due process of law.^'^ g^j. provision must be made for the assessment of damages in some adequate proceeding in the nature of a judicial inquiry.^ss but not necessarily before a jury,^" of which due and proper notice shall be given to the owners whose property is to be condemned, =" and in which they shall have a full and fair opportunity to be heard on the question of the compensation to be awarded to them or to oppose and contest the findings on this point made by the appraisers or jury of inquest ;"2 and finally, just compensation must be awarded, for if none is given, or if inadequate damages are allowed, there is a want of due process of law.^*' But it is not unconstitutional to permit the actual taking possession of the property, pending the condemnation proceedings, if adequate pro- 238 Offield V. New York, N. H. & H. R. Co., 203 U. S. 372, 27 Sup. Ot 72, 51 L. Ed. 231 ; New York, N. H. & H. R. Co. v. Offield, 77 Conn, 417, 59 Atl. 510 ; City of Belleville v. St. Clair County Turnpike Co., 234 111. 428, 84 N. E. 1049, 17 L. R. A. (N. S.) 1071 ; In re Tuthill, 36' App. Div. 492, 55 N. Y. Supp. 657 ; Gilmer v. Hunnicutt, 57 S. C. 166, 35 S. E. 521. See "Constitu- tional Law," Dec. Dip. (Key No.) §§ 280, 281; Cent. Dig. §§ 877-890. 23 9 Painter v. St. Clair, 98 Va. 85, 34 S. B. 989. See "Constitutional Laic," Dec. Dig. (Key No.) § 280;. Cent. Dig. §§ 877-890. 2*0 Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 17 Sup. Ct. 718, 41 L. Ed. 11G5 ; In re Bradley, 108 Iowa, 476, 79 N. W. 280. See "Consti- tutional Law," Dec. Dig. (Key No.) § 280; Gent. Dig. §§ 877-890. 2iX But this notice may be constructive or by publication in the case of non-resident owners. Huling v. Kaw Valley R. & Improvement Co., 130 U. S. 559, 9 Sup. Ct. 603, 32 L. Ed. 1045. See "Eminent Domain," Dec. Dig. (Key No.) § 181; Cent. Dig. § ^92. 2*2 Dodd V. Hart, 8 Del. Ch. 448, 68 Atl. 307; Savannah, F. & W. R. Co. V. Postal Tel. Cable Co., 112 Ga. 941, 38 S. B. 353 ; In re City of New York, 34 Misc. Rep. 719, 70 N. Y. Supp. 227; Tucker v. Paris (Tex. Civ. App.) 99 S. AV. 1127; Sterritt v. Young, 14 Wyo. 146, 82 Pac. 946, 4 L. R. A. (N. S.) 169, 119 Am. St. Rep. 994. See Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 228, 17 Sup. Ct. 581, 41 L. Bd. 979. See "Constitutional Laiv," Deo. Dig. (Key No.) §§ 280, 281; Cent. Dig. §§ 877-890. 243 Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 Tj. Ed. 979; Newburyport Water Co. v. Newburyport (C. C.) 103 Fed. 584. For a city to condemn land for a street through the property of a single owner, and then assess back upon his abutting property the entire damages awarded, Is taking his property without due process of law. Village of Nor- wood V. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443 (affirming Baker v. Village of Norwood [0. C] 74 Fed. 997) ; Scott v. Toledo (C. C.) 36 Fed. 385, 1 L. R. A. 688. See "Constitutional Laiv," Dec. Dig. (Key No.) §§ 280, 281; Cent. Dig. §§ 877-890. § 223) DUB PROCESS OF LAW IN JUDICIAL ACTION. 587 vision is made for the payment of just compensation when the amount shall be ascertained.^** DUE PROCESS OF LAW IN JUDICIAI. ACTION. 223. Due process of laiv in judicial action implies a regular proceed- ing before a competent court, possessing jurisdiction, uritb an opportunity to the party to appear and be heard in his own de- fense or in rebuttal of the claim made against his property. As applied to judicial proceedings, the requirement of due process of law involves the action of a competent and impartial tribunal pos- sessing jurisdiction and clothed with authority to hear and determine the questions at issue,^*'' and following a regular and orderly course of legal procedure according to the rules established for the enforce- ment and vindication of private rights,^*' and of which the party to be affected shall have such actual or constructive notice as is appropriate to the case and necessary to confer jurisdiction, and in which he 2*4 Backus V. Port St. Union Depot Co., 169 U. S. 557, 18 Sup. Ct 445, 42 L. Ed. 853. See "Constitutional Law," Dec. Dig. (Key No.) §§ 280, 281; Cent. Dig. §§ 877-890. 24 5 CTiarles v. Marion (C. C.) 98 Fed. 166; Gates v. State (Tex. O. App.) 121 S. W. 370. To compel a litigant to submit his controversy to a tribunal of which his adversary is a member does not afford due process of law. Commis- sioners of Union Drainage Dist. No. 1 v. Smith, 233 111. 417, 84 N. E. 376, 16 L. K. A. (N. S.) 292. See "Constitutional Law," Dec. Dig. (Key No.) § 251; Cent. Dig. §§ 726. 727. 2 46 In re McPhee's Estate, 154 Cal. 385, 97 Pac. 878; In re Knig (0. C.) 79 Fed. 308 ; Williams' Adm'r v. Newman, 93 Va. 719, 26 S. E. 19. The con- stitution does not require that the proceedings should be by any particular mode, if they constitute a regular course of procedure in which notice is given of the claim asserted and an opportunity afforded to defend against it. Si- mon V. Craft, 182 U. S. 427, 21 Sup. Ct. 836, 45 L. Ed. 1165 ; Smith v. State Board of Medical Examipers (Iowa) 117 N. W. 1116. This constitutional pro- vision does not secure to an accused person the right to be represented by counsel (People v. Chicago, 127 III. App. 118), nor secure him against being compelled to testify against himself (Twining v. New Jersey, 211 U. S. 78, 29 Sup. Ct. 14, 53 L. Ed. 97) ; nor does it forbid the reception of unsworn tes- timony (People V. Sexton, 187 N. Y. 495, 80 N. E. 396, 116 Am. St. Rep. 621). But on the other hand, to make certain facts conclusive proof of title or of adverse possession is not in accordance with what the constitution requires. Marmet-Halm Coal Co. v. Cincinnati, L. & A. Electric St. Ky., 28 Ohio Cir. Ct. R. 618. See "Constitutional Law," Dec. Dig. (Key No.) §§ 256-272, 304-317; Cent. Dig. §§ 746-761, 925-949. 588 CIVIL RIGHTS AND THEIE PROTECTION. (Ch. 18 shall have a full and fair opportunity to plead and to support his rights, claims, or defenses, as the case may be.^" Trial by Jury. Trial by jury is not essential to constitute due process of law. Reg- ular and orderly proceedings, founded on notice to the party affected and affording him a full opportunity to be heard in his own behalf, may fulfill the constitutional requirement, though conducted without a jury, as, for example, in the case of suits in equity and in admiralty and proceedings in quo warranto and for the punishment of con- tempts, as well as new forms of action of statutory origin.^** Right of Appeal. It is not a necessary element of due process of law that the party affected should have a review of his case by an appellate tribunal. Even in criminal cases, and even in those involving capital punishment, an appeal may be denied without violating the constitutional require- ment.^" Remedies and Defenses. One who is denied access to the courts for the enforcement of his rights, the redress of injuries, or for his defense against claims made 247 Morley v. Lake Shore & M. S. R. Co., 146 U. S. 1G2, 33 Sup. Ct. 54, 36 L. Ed. 925; Jenks v. Stump, 41 Colo. 281, 93 Pac. 17, 124 Am. St. Rep. 137; State v. District Court of St. Louis County, 90 Minn. 457, 97 N. W 132 ; In re Rosser, 101 Fed. 562, 41 C. C. A. 497 ; MeConnell v. Bell (Tenn.) 1J4 S. W. 203; Louisville School Board v. King, 127 Ky. 824, 32 Ky. Law Rep. 687, 107 S. W. 247, 15 L. R. A. (N. S.) 379; Persing v. Reno Stock Brokerage Co. (Nev.) 96 Pac. 1054; Wright v. Cradlebaugh, 3 Nev. 341. See "Constitutional Law," Deo. Dig. (Key 'No.) %% 256-272, 304-317; Cent. Dig. §§ 7^6-761, 925-H9. 24 8 Marvin v. Trout, 199 U. S. 212, 26 Sup. Ct. 31, 50 L. Ed. 157; Tinsley V. Anderson, 171 U. S. 101, 18 Sup. Ct. 805, 43 L. Ed. 91; Wilson v. North Carolina, 169 U. S. 586, 18 Sup. Ct. 435, 42 L. Ed. 865 ; Lent v. Tillson, 140 U. S. 316, 11 Sup. Ot. 825, 35 L. Ed. 419 ; Davidson v. New Orleans, 96 tJ. S. 97, 24 L. Ed. 616 ; Kirkland v. State, 72 Ark. 171, 78 S. W. 770, 65 L. R. A. 76, 105 Am. St. Rep. 25 ; Hood v. Tharp, 228 111. 244, 81 N. E. 861 ; Brown's Case, 173 Mass. 498, 53 N. E. 998; Smith v. Speed, 11 Okl. 95, 66 Pac. 511, 55 L. R. A. 402 ; Gunn v. Union R. Co., 27 R. I. 320, 62 Atl. 118, 2 L. R. A. (N. S.) 362. See "Constitutional Laie," Dec. Dig. (Key No.) §§ 267, 313; Cent. Dig. i§ 754, 933. 24 Andrews v. Swartz, 156 U. S. 272, 15 Sup. Ct. 389, 39 L. Ed. 422; Saylor v. Duel, 236 111. 429, 86 N. E. 119, 19 L. R. A. (N. S.) 377; McCue v. Com* monwealth, 103 Va. 870, 49 S. E. 623 ; Ward v. State, 171 Ind. 565, 86 N. E. 994. See "Constitutional Laic," Dec. Dig. (Key No.) §§ 271, 316; Cent. Dig. §§ 760, 938. § 223) DUE PROCESS OF LAW IN JUDICIAL, ACTION. 589 Upon him, is deprived of his property without due process of law; and hence a statute which destroys existing rights of action or exist- ing defenses or forbids the maintenance of actions, is unconstitution- al,^*^" in so far as it affects substantial rights, as distinguished from those founded on mere technicalities or on arbitrary rules of law,^" and rights of action distinctly created by statute or always recognized as existing at common law,^^^ unless the statute at the same time gives a new and substantially equivalent action; ^^^ and where no adequate remedy at law is provided, one cannot be deprived by statute of his right to resort to a court of chancery for the exercise of its usual pre- ventive remedies.^ °* It is of course within the constitutional power of the legislature to enact statutes of limitation, and they may be made retroactive ; but when this is done, a time must be fixed within which suits may be brought on existing causes of action which otherwise would be barred by the statute, and if the time so fixed is so short that it amounts to a practical denial of an opportunity to sue, the stat- ute will be held unconstitutional as depriving parties of their property without due process of law.^°° On the other hand, the right to plead 2 50 In re Flukes, 157 Mo. 125, 57 S. W. 545, 51 L. R. A. 176, 80 Am. St. Rep. €19; Swing v. Brister, 87 Miss. 516, 40 Soutli. 146. See MacMullen v. Mid- dletown, 187 N. Y. 37, 79 N. E. 863, 11 L. R. A. (N. S.) 391. See "Constitutional Law," Dec. Dig. (Key No.) § 307; Cent. Dig. § 925. 2B1 Piummer v. Northern Pac. R. Co. (C. C.) 152 Fed. 206; Williams v. Gal- veston, 41 Tex. Civ. App. 63, 90 S. W. 505 ; Steele County v. Erskine, 98 Fed. 215, 39 C. C. A. 173. Bee "Constitutional Law," Dec. Dig. (Key No.) § 307; ■Cent. Dig. § 925. 2 52 Abbott V. National Bank of Commerce, 175 U. S. 409, 20 Sup. Ct. 153, 44 L. Ed. 217, holding that a person is not deprived of his reputation (even if that constitutes property) without due process of law by denying his right to an action for defamatory words in a pleading. See "Constitutional Law," Dec. Dig. (Key No.) § 307; Cent. Dig. § 925. 2 53 Scott V. District Court of Fifth Judicial Dist. for Barnes County, 15 N. D. 259, 107 N. W. 61. See "Constitutional Law," Dec. Dig. (Key No.) § .307; Cent. Dig. § 925. 2 B4 Central of Georgia Ry. Co. v. Railroad Commission of Alabama (C. C.) 161 Fed. 925. See "Constitutional Law," Dec. Dig. (Key No.) §§ 305-S08-; ■Cent. Dig. §§ 925-927. 2 55 ijamb V. Powder River Live Stock Co., 132 Fed. 434, 65 C C. A. 570, ■67 L. R. A. 558; Thoeni v. Dubuque, 115 Iowa, 482, 88 N. W. 967; Terry v. Helsen, 115 La. 1070, 40 South. 461 ; Osborne v. Undstrom, 9 N. D. 1, 81 N. W. 72, 46 L. R. A. 715, 81 Am. St. Rep. 516 ; Williams v. Village of Port Ches- ter, 72 App. Div. 505, 76 N. Y. Supp. 631. See "Constitutional Law," Dec. Dig. {Key No.) § 308; Cent. Dig. § 925. 590 CIVIL RIGHTS AND THEIR PROTECTION. (Ch. 18 the statute of limitations as a defense to an obligation is not "prop- erty," and the removal of the bar by statute is not contrary to the constitutional requirement.^"* Jurisdiction. The validity of judicial action, as tested by this requirement of the constitution, is primarily dependent upon jurisdiction; and jurisdic- tion of the person is acquired by the service upon him of a notice or summons advising him of the proceeding against him and tendering him his day in court.^°^ This process must be served upon each of the parties concerned,"' or upon a duly authorized agent or represen- tative,"» though a corporation may be brought into court without making its individual members parties to the suit."" Further, the party to be charged must have the privilege of challenging the juris- diction of the court by showing the want of service upon him or the invaHdity of the process.""^ The law may provide for a substituted 2 68 People V. Board of Education and Trustees of School Dlst. No. 1 of Hav- erstraw, 126 App. DIv. 414, 110 N. T. Supp. 769. See "Constitutional Laio," Dec. Dig. (Key 'No.) § 308; Cent. Dig. § 925. 2 5' Rouse, Hazard & Co. v. Donovan, 104 Mich. 234, 62 N. W. 359, 27 L. R. A. 577, 53 Am. St. Rep. 457. See "Constitutional Law," Dec. Dig. (Key No.) | 309; Cent. Dig. § 929. 268 There are exceptions to this rule under the "joint debtor acts" of some of the states, where suit is brought on a joint contract or against a partner- ship. See Brooks v. Mclntyre, 4 Mich. 316. And see generally, 1 Black, Judgm. §§ 233-237. See "Constitutional Law," Dec. Dig. (Key No.) § 309; Cent. Dig. §§ 929, 930. 2 59 There is no constitutional objection to requiring foreign corporations: doing business within the state to appoint a resident agent upon whom pro- cess may be served. Groel v. United Electric Co. of New Jersey, 69 N. J. Eq. 397, 60 Atl. 822; Olender v. Crystalline Mln. Co., 149 Cal. 482, 86 Pac. 1082. But a statute authorizing service of process on a domestic private- corporation by leaving a copy of such process with the register of deeds, is^ unconstitutional. Pinney v. Providence Loan & Investment Co., 106 Wis. 396, 82 N. W. 308, 50 L. R. A. 577, 80 Am. St. Rep. 41. See "Constitutional Law," Deo. Dig. (Key No.) § 309; Cent. Dig. §§ 92.9, 930. 26 New Orleans Debenture Redemption Co. v. Louisiana, 180 U. S. 320, 21 Sup. Ot. 378, 45 L. Ed. 550. See "Constitutional Law," Dec. Dig. (Key No.) §■ 309; Cent. Dig. §§ 929, 930. 281 See 1 Black, Judgm. §§ 223, 224. See KaufCman v. "Wootters, 138 U. S. 285, 11 Sup. Ct. 298, 34 L. Ed. 962, as to statute forbidding appearance for the mere purpose of challenging the jurisdiction without surrender to the jurisdiction. And see Warren v. Wilner, 61 Kan. 719, 60 Pac. 745, as to mak- ing sheriff's return of service conclusive evidence thereof. See "Constitutional Law," Dec. Dig. (Key No.) § S09; Cent. Dig. §§ 929, 930. § 223) DUB PROCESS OP LAW IN JUDICIAL ACTION. 591 service or publication of notice where actual service of process is im- practicable; and such constructive service, if authorized by statute, will be regarded as. due process of law,^"^ except in actions against non-residents, where it is sought to obtain a personal judgment against them, for here .there must be personal service of process within the state.^"^ Not only notice of the suit is required by this provision of the constitution, but also notice of the claim or defense to be set up and the issue to be tried.^"* And although there need not ordinarily be actual notification of the successive steps in an action, such as pro- ceedings to advance the cause on the trial docket,^*" yet the juris- diction of the court over the parties and the cause must be continu- ous, and if once lost must be acquired de novo; and hence where a party is dismissed from the cause, and a judgment by default is entered against him at a subsequent term, without new notice to him, he is deprived of his property without due process of law.^"" Proceedings in Personam and in Rem. These two classes of proceedings are distinguished as follows: A proceeding in personam is one whereby it is sought to obtain an ad- judication against an individual fixing upon him a personal respon- sibility, liability, or duty; a proceeding in rem is one which seeks to determine the liability of a particular estate or article of property to the satisfaction of a specific claim made against it, or to determine a question of status. In actions in personam, jurisdiction of the per- son must be obtained by the service of process upon him within the territorial jurisdiction; otherwise no personal judgment can be ren- 28 2 Roberts v. Jacob, 154 Cal. 307, 97 Pac. 671; Clearwater Mercantile Co. V. Roberts, Johnson Rand Shoe Co., 51 Fla. 176, 40 South. 436, 4 L. R. A. (N. S.) 117, 120 Am. St. Rep. 153 ; State v. Guilbert, 56 Ohio St. 575, 47 N. E. 551, 38 L. R. A. 519, 60 Am. St. Rep. 756 ; Baltimore & O. R. Oo. v. Pittsburg, W. & K. R. Co., 17 "W. Va. 812. See "Constitutional Law," Dec. Dig. (Key No.) § 309; Cent. Dig. §§ 929, 930. 263 pennoyer v. Neff, 95 U. S. 7l4, 24 L. Ed. 565 ; Old Wayne Mut. Life Ass'n V. McDonough, 204 U. S. 8, 27 Sup. Ct. 236, 51 L. Ed. 345 ; Elmendorf V. Elmendorf, 58 N. J. Eq. 113, 44 Atl. 164 ; Aikmann v. Sanderson & Porter, 122 La. 265, 47 South. 600. See "Constitutional Law," Dec. Dig. (Key No.) § 309; Cent. Dig. §§ 929, 930. 264 Castle V. Persons, 117 Fed, 835, 54 C. C. A. i33. See "Constitutional Law," Dec. Dig. (Key No.) § 309; Cent. Dig. §§ 929, 930. 26 5 Bonney v. McQelland, 235 111. 259, 85 N. E. 242. See "Constitutional Law," Dec. Dig. (Key No.) § 3U; Cent. Dig. § 934. 266Liddell r. Landau, 87 Ark. 438, 112 S. W. 1085. See "Constitutional Law," Dec. Dig. (Key No.) § 309; Cent. Dig. §i 929, 930. 592 CIVIL RIGHTS AND THEIR PROTECTION. (Ch. 18 dered against him which will answer the requirement of due process of law. In proceedings in rem, jurisdiction is obtained by the seizure or attachment of the property, or (in cases of status) by the jurisdic- tion of the person whose status is to be passed upon. Examples of proceedings in rem are libels in admiralty or prize cases, forfeitures under the revenue laws, actions begun by the attachment of property of non-residents, and inquisitions of lunacy and actions in divorce. In all these cases, the constitutional requirement is fully satisfied if there is such jurisdiction as may be obtained by the corporal subjec- tion of the property in question to the control of the court, or, in divorce and lunacy cases, jurisdiction of the person whose status is in question. No personal notice need be served on the owner of the property or on the defendant in divorce, if he is beyond the ter- ritorial jurisdiction of the court; but it is sufficient if a reasonable constructive notice is given to him, as by the publication of an ad- vertisement.^*' And the same principles apply to proceedings for the probate of a will or the administration of a decedent's estate,^ ^^ and, according to some of the decisions, to statutory proceedings for the distribution of the estate of a person absent and unheard of for a certain term of years and therefore presumed to be dead.^''* Summary Proceedings. Summary proceedings against sheriffs, constables, sureties on bail and appeal bonds, collectors of the public revenue, and the like, are not inconsistent with the constitutional guaranty of due process of law. Thus, the auditing of the accounts of a collector of the customs, 26 7 Happy V. Mosher, 48 N. Y. 313; Gray v. Kimball, 42 Me. 299; Pennoyer V. Neff, 95 U. S. 714, 24 L. Ed. 565 ; State v. Chittenden, 127 Wis. 468, 107 N. W. 500 ; Bx parte Scudamore, 55 Fla. 211, 46 South. 279 ; Roller v. Holly, 176 U. S. 398, 20 Sup. Ct. 410, 44 L. Ed. 520. See "Oonstitutional Law," Deo. Dig. (Key No.) § 309; Gent. Dig. §§ 929, 930. 26 8 Goodrich v. Ferris (C. C.) 145 Fed. 844; Tracy v. Muir, 151 Cal. 368, 90 Pac. 832, 121 Am. St. Kep. 117; McCanghey v. Lyall, 152 Cal. 615, 93 Pac. 681 ; In re Davis' Estate, 151 Cal. 318, 86 Pac. 183, 121 Am. St. Eep. 105. See "Oonstituiimal Law," Dec. Dig. (Key No.) §§ U9, 309; Cent. Dig. §§ 110, 9S9, 930. 2 69 Cunnlus v. Reading School Dist., 198 U. S. 458, 25 Sup. Ct. 721, 49 L. Ed. 1125 ; Nelson v. Blinn, 197 Mass. 279, 83 N. E. 889, 15 L. R. A. (N. S.) 651 125 Am, St Rep. 364. But compare Savings Bank of Baltimore v. Weeks, 103 Md. 601, 64 Atl. 295, 6 L. B. A. (N. S.) 690; Clapp v. Houg, 12 N. D. 600, 98 N. W. 710, 65 L. R. A. 757, 102 Am. St. Rep. 589 ; Carr v. Brown, 20 R. I. 215, 38 Atl. 9, 38 L. R. A. 294, 78 Am. St. Rep. 855. See "Constitutional Law;- Dec! Dig. (Key No'.) §§ 306, 309; Cent. Dig. §i 928-930. § 223) DDE PROCESS OF LAW IN JUDICIAL ACTION. 593 and ascertainment of the balance due from him at the treasury de- partment, the issue of a distress warrant therefor, and a levy on his property under the warrant, do not conflict with this provision of the constitution.''^'' And the same rule applies to such proceedings as the appointment of a receiver in bankruptcy,'"^ the suspension of a public officer pending his indictment for misfeasance ,in office,^''' a proceed- ing to hold a party liable to the payment of a judgment by rule to show cause,^^' and proceedings preliminary to a prosecution under the anti-trust laws."* So also, the law giving landlords the right to seize property under a distress warrant for rent is not unconstitutional as depriving the tenant of his property without due process of law, though it denies him a trial by jury.^'° But in general summary pro- ceedings affecting substantial personal or property rights are not much favored, and there is a disposition to restrict them to cases where they are sanctioned by immemorial usage or the long established practice of the courts.^ ^® Punishment of Contempts of Court. A person who is imprisoned or fined for a contempt of court is not deprived of his liberty or property without due process of law, if the proceedings were regular, although he was not tried by a jury, and although the authority which inflicts the punishment is the same to which the wrong was done. 270 Murray v. Hoboken Land & Imp. Co., 18 How. 272, 15 L. Bd. 372; United States V. Dillin, 168 Fed. 813, 94 O. O. A. 337. See "Constitutional Law," Dec. Dig. (Key No.) § 306; Cent. Dig. § 948. 2T1 In re Francis (D. O.) 136 Fed. 912. See "Constitutional La/w" Dec. Dig. (Key No.) § S12; Cent. Dig. § 928. 2T2 Sumpter v. State, 81 Ark. 60, 98 S. W. 719. See "Constitutional Law," Dec. Dig. (Key No.) § 277; Cent. Dig. § H9. 2 73 Louisville & N. R. Co. v. Schmidt, 177 U. S. 230, 20 Sup. Ct. 620, 44 L. Ed. 747. See "Constitutional Law," Dec. Dig. (Key No.) § S06. 274 Jack V. Kansas, 199 U. S. 372, 26 Sup. Ot. 73, 50 L. Ed. 234. See "Con- stitutional Law," Dec. Dig. (Key No.) § 306. 27 6Garnett v. Jennings, 44 S. W. 382, 19 Ky. Law Rep. 1712; Anderson v. Henry, 45 W. Va. 319, 31 S. E. 998. See "Constitutional Law," Deo. Dig. (Key No.) § 306. 27 6 See In re Roberts, 4 Kan. App. 292, 45 Pac. 942; Board of Com'rs of Petite Anse Drainage Dist. v. Iberia & V. R. Co., 117 La. 940, 42 South. 433 ; In re Robinson's Estate, 59 Misc. Rep. 323, 112 N. T. Supp. 280; Mill v. Brown, 31 Utah, 473, 88 Pac. 609, 120 Am. St Rep. 935. See "Constitutional Law," Dec. Dig. (Key No.) § 306. BL.CON ST.L. (3d. Ed.)— 38 594 CIVIL RIGHTS AND THEIR PROTECTION. (Ch. 18 Contempts of court are usually classified as direct and constructive. Direct contempts are those committed in the presence of the court, sitting judicially, or so near as to interfere with the orderly course of procedure. Indirect or constructive contempts are such as are not committed in the presence of the court, but which tend by their opera- tion to interrupt, obstruct, embarrass, or prevent the due and orderly administration of justice. Direct contempts, committed in the presence of the court, are pun- ishable summarily ; that is, in such a case, the court may, upon its own knowledge of the facts, without further proof, without issue or trial, and without hearing any explanation of the motives of the offender, immediately proceed to determine whether the facts justify punish- ment, and to inflict such punishment therefor as the law allows."^^ But when the contempt is constructive or indirect only, the proper course is to issue an attachment against the respondent to bring him into court, or a rule upon him to show cause why an attachment should not issue. The facts are then brought out by affidavits, or he may be examined on interrogatories. He has a right to be heard, and to present evidence in his defense. But he cannot claim a trial by jury ; the court itself determines the question of contempt and punish- ment.^'' Erroneous Judgments. The tnere fact that a judgment rendered against a person, when the court had jurisdiction, is irregular (without being void) or is er- 277 Ex parte Terry, 128 U. S. 289, 9 Sup. Ct. 77, 32 L. Ed. 405; Watt v. Ligertwood, L. R. 2 H. L. Sc. 363 ; Middlebrook v. State, 43 Conn. 257, 21 Am. Rep. 650 ; Wyatt v. People, 17 Colo. 252, 28 Pac. 961 ; Hammond Packing Co. V. State, 81 Ark. 519, 100 S. W. 407, 126 Am. St. Rep. 1047 ; Commonwealth v. Gibbons, 9 Pa. Super. Ct. 527. See People v. Leubiseher, 23 Misc. Rep. 495, 51 N. Y. Supp. 735. See "Constitutional Law" Dec. Dig. (Key No.) § 273; Gent. Dig. § 739. 27 8 state V. Matthews, 37 N. H. 450; State v. Doty, 32 N. J. Law, 403, 90 Am. Dec. 671 ; In re Judson, 3 Blatchf. 148, Fed. Cas. No. 7,563 ; United States V. Dodge, 2 Gall. 313, Fed. Cas. No. 14,975; Ex parte Strieker (C. C.) 109 Fed. 145 ; State v. Shepherd, 177 Mo. 205, 76 S. W. 79, 99 Am. St. Rep. 624 ; Smith V. Speed, 11 Okl. 95, 66 Pac. 511, 55 L. R. A. 402 ; Flannery v. People, 225 111. 62, 80 N. E. 60; In re Lance, 55 Misc. Rep. 13, 106 N. Y. Supp. 211; In re Consolidated Rendering Co., 80 Vt. 55, 66 Atl. 700 ; Hoheuadel v. Steele, 237 111. 229, 86 N. B. 717 ; Hoyey v. Elliott, 167 U. S. 409, 17 Sup. Ct. 841, 42 L. Ed. 215. See "Constitutional Law," Dec. Dig. (Key No.) §§ 367, 273, 31S; Cent. Dig.,%1 739, 134, 9S3; "Jury," Dec. Dig. (Key No.) §§ 13, SI; Cent. Dig. §§ 63, 139. § 224) DUE PROCESS OF LAW IN ADMINISTRATION. 595 roneous in point of law, will not justify him in asserting that due process of law has been denied to him. When the legislature of a state enacts laws for the government of its courts while exercising their respective jurisdictions, which, if followed, will furnish parties the necessary constitutional protection of life, liberty, and property, it has performed its constitutional duty. And if one of its courts, acting within its jurisdiction, makes an erroneous decision in this respect, the state cannot be deemed guilty of violating the consti- tutional provision.^" DUE PROCESS OF LAVT IN ADMINISTRATIVE PRO- CEEDINGS. 224. The constitntional reqiiiremeiit of due process of laiv estends to administratiTe and executive proceedings as tirell as to judicial action, and forbids public officers to deprive persons of their liberty or property by arbitrary or nnlaivful action, or trithout an opportunity for a hearing and defense either before such of- ficers themselves or on appeal to the courts. The constitutional provision under consideration extends to every officer, board, or commission to which the legislature has delegated functions involving the exercise of judgment and discretion of a judicial nature, affecting individuals and property rights, and gen- erally to the action of any person who, by virtue of his public posi- tion under a state government and as acting for and representing the state, is clothed with power to deprive another of his liberty of prop- g^^yzso ^g applied to the chief executive officers of the federal and 279 Howard v. Kentucky, 200 TJ. S. 164, 26 Sup. Ct. 189, 50 L. Ed. 421; Backus V. Fort St. Union Depot Oo,, 169 U. S. 557, 18 Sup. Ct. 445, 42 L. Ed. 853 ; In re Converse, 137 U. S. 624, 11 Sup. Ct. 191, 34 L. Ed. 796 ; Caldwell V. Texas, 137 U. S. 691, 11 Sup. Ct. 224, 34 L. Ed. 816 ; Arrowsmith v. Harmon- ing, 118 U. S. 194, 6 Sup. Ct. 1023, 30 L. Ed. 243 ; Bonner v. Gorman, 213 U. S. 86, 29 Sup. Ct. 483, 53 L. Ed. 709. See "Constitutional Law," Dec. Dig. (Key No.) §§ 256-272, S0Jf-S17; Cent. Dig. §§ 7.1,6-761, 923-949. 280 Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979 ; Eaymond v. Chicago Union Traction Co., 207 U. S. 20, 28 Sup. Ot. 7, 52 L. Ed. 78; Ex parte Virginia, 100 U. S. 339, 25 L. Ed. 676; Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289 ; In re Curran, 38 N. T. App. Div. 82, 55 N. Y. Supp. 1018. Since the prohibition of the fourteenth amendment is addressed to "any state," It may, as above stated, include any public officer who for the time being represents the state, but it has no application to in- 596 CIVIL EIGHTS AND THKIE PROTECTION, (Ch. 18 State governments, municipal officers, lieads of bureaus or depart- ments, revenue and tax commissioners or boards, boards of health, and the like, the constitution forbids them to deprive any citizen of his property or rights in any arbitrary, unjust, or confiscatory man- ner,25i or in any proceeding to which he is not a party, although, if he has proper notice, the constitutional requirement is satisfied by giving him a full and fair opportunity to be heard in his own behalf and in defense of his rights or property, either in the proceeding be- fore the board or ofiicer,^^^ or else on an appeal to the courts, to which he shall be entitled as of right and without onerous restrictions or conditions.'''* PBOTECTION OF VESTED BIGHTS. 225. Vested rights are to be secured and protected by the law, and a statute which divests or destroys such rights, unless it be by due process of law, is unconstitutional and void. dividuals. Klernan v. Multnomah County (O. C.) 95 Fed. 849. If, however, It may be considered as applying to the actions of private bodies or associa- tions, the same general requirement of notice and an opportunity to be heard would decide the legality of the proceeding. Thus, it is held that due pro- ceedings, based upon proper by-laws of a benevolent society, in disciplining Its members, constitute due process of law, although they may result in the expulsion of the member and the forfeiture of property rights. Moore v. Na- tional CJouncIl of the Knights & Ladies of Security, 65 Kan. 452, 70 Pac. 352. See "Constitutional Law," Deo. Dig. (Key No.) § 318; Gent. Dig. § 949. 281 Missouri, K. & T. R. Co. v. Interstate Commerce Commission (C. C.) 164 Fed. 645; Chicago, B. & Q. R. Co. v. State, 60 Neb. 399, 69 N. W. 955. See Welmer v. Zevely, 138 Fed. 1006, 70 C. C. A. 688. See Garfield v. U. S., 32 Aiyp. D. C. 153, as to proceedings before secretary of the Interior to disbar an attorney. Bee "Constitutional Law," Deo. Dig. (Key No.) §§ 318, 319; Cent. Dig. §§ leit, 9J,9. 28 2 United States v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. 644, 49 L. Ed. 1040; Frank Waterhouse & Co. v. United States, 159 Fed. 876, 87 C. C. A. 56 ; Hop- kins V. Fachant, 130 Fed. 839, 65 C. C. A. 1 ; United States v. Sing Tuck, 194 U. S. 161, 24 Sup. Ct. 621, 48 L. Ed. 917 ; Smith v. State Board of Medical Examiners (Iowa) 117 N. W. 1116; In re Fenton, 58 Misc. Rep. 303, 109 N. Y. Supp. 321 ; Lowrey v. Central Falls, 23 R. I. 354, 50 Atl. 639 ; Caldwell v. Wilson, 121 N. C. 425, 28 S. E. 554 ; Attorney General v. Jochim, 99 Mich. 358, 58 N. W. 611, 23 L. R. A. 699, 41 Am. St. Rep. 606. See "Constitutional Law," Dec. Dig. (Key No.) § 318; Cent. Dig. § 949. 283 Public Clearing House v. Coyne, 194 U. S. 497, 24 Sup. Ct. 789, 48 L. Ed. 1092 ; State Board of Health v. Roy, 22 R. I. 538, 48 Atl. 802. See "Con- stitutional Law," Dec. Dig. (Key No.) § 318; Cent. Dig. § 949. § 225) PROTECTION OP VESTED RIGHTS. 597 Deftnition of Vested Jiights. Vested rights are rights which have so completely and definitively accrued to or settled in a person that they are not subject to be de- feated or canceled by the act of any other private person, and which it is right and equitable that the government should recognize and protect, as being lawful in themselves and settled according to the then current rules of law, and of which the individual could not be deprived arbitrarily without injustice, or of which he could not justly be deprived otherwise than by the established methods of procedure and for the public welfare.^** Vested rights are not generally pro- vided for in the constitutions specifically and by name. But they are protected against unjust laws divesting them by those constitu- tional clauses which require due process of law when one is to be deprived of his property, those which regulate the exercise of the power of eminent domain, and others of similar character.^ ^° But there can be no such thing as a vested right in a public law, which is not in the nature of a grant, and the legislature may repeal all laws which are not in the nature of contracts or private grants. But the repeal of a law will not be permitted in any case to affect or impair rights which have been acquired under it.^^' Estates and Interests in Real Property. The nature and tenure of estates is to a considerable degree sub- ject to the control of the legislature, and may be changed as the pub- 2 84 Black, Law D-ict. s. v. And see Pennie v. Reis, 132 U. S. 464, 10 Sup. Ct. 149, 33 L. Ed. 426 ; Haney v. Gartln (T^x, Oiv. App.) 113 S. W. 166. The term "vested rights" Is properly restricted to those things in which prop- erty may be said to exist. For example, no one can have a vested right to have another sent to an insane asylum. Grinky v. Wayne Probate Judge, 137 Mich. 49, 100 N. W. 171. Again, it is properly confined to rights of a private or Individual nature. Thus, no citizen has any vested right in or to the revenues of a county or to their application or, expenditure in a particular way or for a particular purpose. McSurely v. McGrew (Iowa) 118 N. W. 415. See "Constitutional Law," Dec. Dig. (Key No.) §§ 92-112; Cent. Dig. §§ 174- 270. 28 B Moore v. State, 43 N. J. Law, 203, 243, 39 Am. Rep. 558; Denny v. Mattoon, 2 Allen (Mass.) 361, 79 Am. Dec. 784 ; Fayerweather v. Dickinson, 2 Allen (Mass.) 385 ; Peerce v. Kitzmiller, 19 W. Va. 564 ; Bender v. Crawford, 33 Tex. 745, 7 Am. Rep. 270. See "Constitutional Law," Dec. Dig. (Key No.) §§ 218-281; Cent. Dig. §§ 763-82^, 877-890. 2 86 Dobbins v. First Nat. Bank of Peoria, 112 111. 553; Markel v. Phillips, 5 Ind. 510 ; Webster v. Auditor General, 121 Mich. 668, 80 N. W. 705. For example, a municipal ordinance requiring all buildings of certain classes. 598 CIVIL EIGHTS AND THEIE PROTECTION. (Ch. 18 lie policy or interests may require, provided only that vested interests in property be not made less beneficial by such changes. Thus there is no constitutional objection to a statute making joint heirs tenants in common, even as to estates already vested at the time of its enact- ment.^" And so of a statute validating existing mortgages,"^ and one forbidding the cutting ofE of estates in remainder by deed of feoff- ment with livery of seisin."*' And a naked legal title to land is not a vested interest such as will be protected from retrospective legis- lation intended to divest it.^'" But an attempt to tax the right of suc- cession in the case of remainders already vested is unconstitutional as diminishing the value of vested estates.^"^ And! so is a statute declaring that the owners of lands bordering on a non-navigable lake shall be owners in common of the bed of the lake, because their vested titles are to the center of the bed in severalty.""" Again, laws re- lating to judicial sales or tax sales made before their enactment, are unconstitutional for this reason if they either extend the time allowed for redemption or add new conditions to the right of redemption more burdensome than those existing when the sale was made.""' Rules of Descent. It is an ancient maxim of the law that no man is heir to the living. So long, therefore, as a man retains the power to dispose of his prop- whether erected before or after the passage of the ordinance, to be equipped with a particular kind of fire escape, is not unconstitutional or in violation of vested rights as applied to the owner of a building previously erected, though he had complied with the fire escape ordinance In force at the time he built. Seattle v. HincMey, 40 Wash. 468, 82 Pac. 747, 2 L. R. A. (N. S.) 398. See "Constitutional Law,". Doc. Dig. (Key 'No.) § 93; Cent. Dig. § It 5. 28 7 Stevenson v. OofEerin, 20 N. H. 150; Miller v. Dennett, 6 N. H. 109; Annable v. Patch, 3 Pick. (Mass.) 360. See "Constitutional Law," Dec. Dig. (Key No.) § 93; Cent. Dig. § 182. 288 McFaddin v. Evans-Suider-Buel Co., 185 U. S. 505, 22 Sup. Ct. 758, 46 L. Ed. 1012. See "Constitutional Law," Dec. Dig. (Key No.) § 93; Cent. Dig. § 185. 2 89 People's Loan & Exchange Bank v. Garlington, 54 S. C. 413, 32 S. E. 513, 71 Am. St. Rep. 800. See "Constitutional Law," Deo. Dig. (Key 7fo.) § 93; Cent. Dig. § 18t. 230 Diamond State Iron Co. v.^ Husbands, 8 Del. Ch. 205, 68 Atl. 240. See "Constitutional Law," Dec. Dig. (Key No.) § 93. 291 In re Pell's Estate, 171 N. Y. 48, 63 N. E. 789, 57 L. R. A. 540, 89 Am. St. Rep. 791. See "Constitutional Law," Dec. Dig. (Key No.) § S3. 292 Shell V. Matteson, 81 Minn. 38, 83 N. W. 491. See "Constitutional Law," Deo. Dig. (Key No.) § 93. 2 93 Welsh V. Cross, 146 Cal. 621, 81 Pac. 229, 106 Am. St. Rep. 63; Teralta § 225) PROTECTION OF V^ESTED KIGflTS. 599 erty as he chooses, the expectation which any other person may have of succeeding to his estate, should he die intestate, is not a vested right, but a mere anticipation. Hence it is in the power of the legis- lature to change the rules of descent, in respect to all estates which have not already passed to heirs or devisees.^"* Conversely, the right of the citizen to dispose of his property by will is not a constitutional right which the legislature cannot destroy or abridge. The right to acquire property implies the right to dispose of it ; but these are rights belonging to the living. As a disposition by will does not take effect until the death of the testator, it cannot be said that a law restricting or limiting the proportion of his property which he may bequeath away from his natural heirs, or avoiding bequests to superstitious uses, or the like, impairs any of his vested rights of property.^ ^^ Dower and Curtesy. A wife's right of dower does not become vested by the marriage, but remains an interest in expectancy until the death of the husband. Until that time, therefore, it is not protected) by the constitution, but may be abolished by statute. And the same is true of a husband's inchoate right of curtesy, after the marriage but before the birth of issue. These expectant rights are not property or vested interests in such sense as to secure them against legislative interference. ^'° Betterment Laws. These are statutes which allow to a person who has held land ad- versely in good faith the value of the improvements which he has Land & Water Co. v. Shaffer, 116 Cal. 518, 48 Pac. 613, 58 Am. St. Rep. 194. But see Starks r. Sawyer (Pla.) 47 South. 513. See "Constitutional Lww," Dec. Dig. (Key No.) § 98; Cent. Dig. § SOS. 294 Henson v. Moore, 104 111. 403; Wyatt v. Smith, 25 W. Va. 813; Hughes V. Murdock, 45 La. Ann. 935, 13 South. 182; Waugh v. Riley, 68 Ind. 482; In re Newlove's Estate, 142 Cal. 377, 75 Pac. 1083. See "Constitutional Law," Dec. Dig. (Key No.) § H; Cent. Dig. §§ 186-189. 29BPatton V. Patton, 39 Ohio St. 590; In re Avery's Will, 45 aiisc. Rep. 529, 92 N. Y. Supp. 974 ; O'Brien v. Ash, 169 Mo. 283, 69 S. W. 8. See "Con- stitutional Law," Dec. Dig. (Key No.) § 9^; Gent. Dig. §§ 186-189. 296 Thurber v. Townsend, 22 N. Y. 517; In re Curtis' Will, 61 Hun, 372, 16 N. Y. Supp. 180; McNeer v. McNeer, 142 111. 388, 32 N. E. 681, 19 L. R. A. 256 ; Denny v. McOabe, 35 Ohio St. 576 ; Chapman v. Chapman, 48 Kan. 636, 29 Pac. 1071 ; Brown v. Olark, 44 Mich. 309, 6 N. W. 679 ; Bottorff v. Lewis, 121 Iowa, 27, 95 N. W. 262 ; Rose v. Rose, 104 Ky. 48, 46 S. W. 524, 41 L. R. A. 353, 84 Am. St. Rep. 430 ; Bartlett v. Ball, 142 Mo. 28, 43 S. W. 783 ; Gris- wold V. McGee, 102 Minn. 114, 112 N. W. 1020. See "Constitutional Law," Deo. Dig. (Key No.) § OS; Cent. Dig. § 201. 600 CIVIL RIGHTS AND THEIE PEOTECTION. (Ch, 18 put upon it, and grant him a lien therefor, when his supposed title is overthrown by the real owner. They are not unconstitutional as divesting rights or lacking the essentials of due process of law, since they merely enforce an equitable right.^"' Public Offices. The incumbent of a public office created by statute has no such vested interest or private property in it as to put it beyond the control of the legislature. Such offices are not held by grant or contract, but are sub- ject to abolition and to such modifications and changes as the legisla- ture may deem it necessary or advisable to enact, unless restrained by the constitution.^** Right to Pursue Particular Occupations. While it may be true in a general sense that any person has a vested right to continue in the exercise of any lawful andl innocent trade or pursuit in which he has engaged, this is not true of such occupations as are harmful in themselves or which are so far affected with a public interest as to require regulation under the police power. As to such avocations the legislature may, without violating vested rights, prescribe new qualifications or restrictions, though the effect may be to put individuals out of business or deprive them of the benefit of licenses already granted, as in the case of persons engaged in the liquor traffic or in the practice of medicine or dentistry,'"' or impair the value of property devoted to a particular use, as in the case of breweries, markets, and slaughter houses. '°'' A more difficult question 297 Ross V. Irving, 14 111. 171. See "Constitutional Law," Deo. Dig. (Key No.) § 97; Cent. Dig. § 202. 2 08 Butler v. Pennsylvania, 10 How. 402, 13 L. Ed. 472; Ex parte Lambert, 52 Ala. 79 ; Commonwealth V. Weir, 165 Pa. 284, 30 AO. 835 ; Dallis v. Grif- fin, 117 6a. 408, 43 S. E. 758 ; Tucker v. State, 163 Ind. 403, 71 N. E. 140 ; Lahart v. Thompson (Iowa) 118 N. "W. 398 ; State v. Evans, 166 Mo. 347, 66 S. W. 355; Mial v. Ellington, 134 N. O. 131, 46 S. E. 961, 65 L/. K. A. 697 ; State V. I>ahl (Wis.) 122 N. W. 748. . But compare Gattis v. Griffin, 125 N. O. 332, 34 S. E. 429 ; Wood v. Bellamy, 120 N. C. 212, 27 S. B. 113. See "Constitutional Law," Dee. Dig. {Key No.) § 102; Cent. Dig. § 225. 2 99 Guy V. Board of Ctom'rs of Cumberland County, 122 N. C. 471, 29 S. E. 771 ; State v. City Council of City of Cheyenne, 7 Wyo. 417, 52 Pac. 975, 40 L. R. A. 71 ; State v. Mcintosh, 205 Mo. 616, 103 S. W. 1071 ; Davidson v. Sadler, 23 Tex. Civ. App. 600, 57 S. W. 54. See "Constitutional Law," Dec. Dig. (Key No.) §§ 88, 101; Cent. Dig. §§ m, 165, 209-211. 800 Boston Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989 ; City ot Portland v. Meyer, 32 Or. 368, 52 Pac. 21, 67 Am. St. Rep. 53S; City of New Orleans r. Faber, 105 La. 208, 29 South. 507, 53 L. R. A. 165, 83 Am. St Rep. § 225) PKOTECTIOK OF VESTED EIGHTS. 601 arises in the case of a statute requiring licenses, registration, submis- sion to examination, or additional qualifications for public teachers, attorneys at law, physicians and surgeons, as applied to those who are lawfully engaged! in their respective professions at the time of its enactment and who had previously obtained the necessary licenses, shown the requisite qualifications, or otherwise fully complied with the law as then existing. But' it is generally held that persons so situated have no vested right to continue in their occupations free from further regulation by the legislature.^"^ Franchises and Privileges. These may be the subject of vested rights, no less than corporeal property.^"^ But the fact that a public service corporation has fully complied with all the statutory requirements applicable to it, at the time of its organization or of its entering the state for the transaction of business therein, or at the time of constructing its works, does not give it a vested right to carry on its business subject only to the laws then existing nor an immunity from future legislative control or from the enactment of such subsequent regulations as the legislature may deem to be necessary for the public welfare in the exercise of the police power. ^"^ If the right of taking fish from the public waters of the state is a franchise or privilege of citizens, it is not a vested 232. See "Constitutional Law," Dec. Dig. (Key No.) §§ 81, 278, S96; Cent. Dig. §§ lis, 778, 8J,1. 301 In re Day, 181 111. 73, 54 N. E. 646, 50 L. R. A. 519; State v. Davis, 194 Mo. 485, 92 S. W. 484, 4 L. E. A. (N. S.) 1023 ; State v. Horvoka, 100 Minn. 249, 110 N. W. 870, 8 L. R. A. (N. S.) 1272 ; Commonwealth v. Densten, 30 Pa. Super. Ct. 631 ; State v. Board of Dental Examiners, 26 Ohio Clr. Ct R. 369 ; In re Stebbins, 41 App. Div. 269, 58 N. Y. Supp. 468. Contra, In re Applica- tions for Admission to Practice, 14 S. D. 429, 85 N. W. 992. See "Constitu- tional Law," Dec. Dig. (Key No.) §§ 93, 101; Cent. Dig. §§ 176-224- 302 Lewis V. Pennsylvania R. Co., 220 Pa. 317, 69 Atl. 821, 18 L. R. A. (N. S.) 279 ; Northwestern Tel. Exch. Co. v. Anderson, 12 N. D. 585, 98 N. W. 706, 65 L. R. A. 771, 102 Am. St. Rep. 580 ; Walbridge v. Board of Com'rs of Rus- sell County, 74 Kan. 341, 86 Pac. 473 ; Louisville & T. Turnpike Road Oo. v. Boss, 44 S. W. 981, 19 Ky. Law Rep. 1954. See "Constitutional Law," Deo. Dig. (Key No.) § 101; Cent. Dig. §§ 200-211. 3 03 Adams Express Co. v. State, 161 Ind. 328, 67 K. E. 1033; Erb v. Mo- rasch, 8 Kan. App. 61, 54 Pac. 323 ; Snouffer v. Cedar Rapids & M. aty Ry. Co., 118 Iowa, 287, 92 N. W. 79; Weed v. Common Council of City of Bing- hamton, 26 Misc. Rep. 208, 56 N. Y. Supp. 105. See "Constitutional Law," Dec. Dig. (Key No.) § 101; Cent. Dig. §§ 209-211. 602 CIVIL EIGHTS AND THEIR PROTECTION. (Cll. 18 right in such sense that the legislature cannot restrict it or forbid wasteful or destructive methods of fishing.'"* Rights of Action and Defenses. A cause of action, accruing at common law or by a contract, which is fixed and settled in a particular person, and continues in force, is a vested' right within the protection of the constitutions. It is prop- erty, and it cannot lawfully be divested by legislative interference, or by taking away the legal means of making it effective, or by so ham- pering it with conditions or restrictions as to render it practically worthless.""" But this principle does not apply to a right of action of purely statutory origin, not afforded by the common law, such as the right to recover money paid on a gambling contract.'"" A vested right to an existing defense is also under the protection of the law, save only as to those based on mere informalities or irregularities or on technicalities not affecting the substantial rights of the parties.'"^ Remedies and Procedure. No one can be said to have a vested! right in any particular remedy for the enforcement of his rights or the redress of injuries done him. Remedies and remedial rights and process are always subject to the control of the legislature. It would not be competent to deny all remedy. But subject to this limitation, the state may substitute one remedy for another, or change modes of procedure, or alter the sys- tem of courts, as public policy may seem to require. A man with a fixed right of action may be said to have a vested right to a remedy, but not to that particular form of remedy which was available when 304 Evans v. United States, 31 App. D. O. 544. See "Constitutional Law," Dec. Dig. (Key No.) § 101. 305 Cornell v. Hichens, 11 Wis. 353; Dunlap v. Toledo, A. A. & G. T. R. Co., 50 Mich. 470, 15 N. "W. 555 ; Relyea v. Tomahawk Pulp & Paper Co., 102 Wis. 301, 78 M. W. 412, 72 Am. St. Rep. 878; McCann v. City of New York, 52 App. Div. S58, 65 N. Y. Supp. 308. See "Constitutional Law," Deo. Dig. (Key No.) § 105; ' Cent. Dig. §§ 228-23-5. 306yeomans v. Heath, 185 Mass. 189, 70 N. E. 1114; Wilson v. Head, 1S4 Mass. 515, 69 N. B. 317. See "Constitutional Law," Dec. Dig. (Key No.) §§ 105, 106; Cent. Dig. §§ 228-2-i.5, 252-259. 307 Tifft V. City of Buffalo, 82 N. Y. 204; Merchants' Nat. Bank of St. Paul V. City of East Grand Forks, 94 Minn. 246, 102 N. W. 703 ; Fatnsworth Loan & Realty Co. v. Commonwealth Title Ins. & Trust Co., 84 Minn. 62, 86 N. W. 877 ; Baltimore & O. S. W. R. Co. v. Reed, 158 Ind. 25, 62 N. E. 488, 56 L. R. A. 468, 92 Am. St. Rep. 293. See "Constitutional Law," Dec. Dig. (Key No.) § 105;' Cent. Dig. §§ 228-235. § 225) PROTECTION OF VESTED RIGHTS. 603 his cause of action accrued.'"* But the right to a particular remedy may become fixed by the agreement of the parties, or by the attaching of a lien under it, in such a way as to be beyond the control of the legislature. For example, a right to foreclose, pursuant to the statute in force at the time of the execution of a mortgage, under the power of sale contained in it, cannot be taken away by subsequent legisla- tion.'"* Such may also be the case with regard to a statutory lien.'^" Unless guarantied by the constitution, no one can be said to have a vested right to take an appeal or prosecute a writ of error or to have a new trial.'^^ And the converse of the main rule is equally true. That is, if there is a right or cause of action in existence, for which the law has provided no remedy or an inadequate remedy, the party against whom the right or cause of action avails has no vested right to have the law continue as it is, and he cannot complain if a subse- quent statute provides a new, additional, or more effective remedy.'^^ Statutes of Limitation. Vested rights may be lost by the negligence or indifference of the owner. All the states have enacted statutes of limitation, by which it is provided that actions for the enforcement of rights or the redress 3 08 Campbell v. Iron-Silver Min. Co., 83 Fed. 643, 27 0. C. A. 646; People T. Richmond, 16 Colo. 274, 26 Pac. 929 ; Shelley v. Wescott, 23 App. D. 0. 135 ; Boise Irrigation & Land Co. v. Stewart, 10 Idaho, 2S, 77 Pac. 25 ; Chicago & W. I. R. Co. V. Guthrie, 192 111. 579, 61 N. E. 658 ; Richardson v. Akin, 87 111. 138 ; Leavenworth Goal Co. v. Barber, 47 Kan. 29, 27 Pac. 114 ; Cusic v. Doug- las, 3 Kan. 123, 87 Am. Dec. 458 ; Rollins v. Love, 97 N. C. 210, 2 S. E. 166 ; Shickell v. Berryville Land & Improvement Co., 99 Va. 88, 37 S. E. 813. See ■"Constitutional Law," Dec. big. (Key No.) § 106; Cent. Dig. §§ 238-259. 309 O'Brien v. Krenz, 36 Minn. 136, 30 N. W. 458. See "Constitutional Law," Dec. Dig. (Key No.) § 106; Cent. Dig. §§ 238-259. 310 See Waters v. Dixie Lumber & Manufacturing Co., 106 Ga. 592, 32 S. E. ^6, 71 Am. St. Rep. 281 ; Bailey v. Mason, 4 Minn. 546 (Gil. 430) ; Garneau T. Port Blakely Mill Co., 8 Wash. 467, 36 Pac. 463; Murphy v. Beard, 138 Ind. 560, 38 N. E. 33. See "Constitutional Law," Dec. Dig. (Key No.) § 106; ■Cent. Dig. §§ 2S8-t59. 311 People V. Board of Com'rs of Cook County, 176 111. 576, 52 N. E. 334; Lake Erie & W. Ry. Co. v. Watkins, 157 Ind. 600, 62 N. E. 443; Zellars v. National Surety Co., 210 Mo. 86, 108 S. W. 548 ; City of St. Louis v. Marchel, :99 Mo. 475, 12 S. W. 1050 ; Johnson v. Smith, 78 Vt. 145, 62 Atl. 9, 2 L. R. A. (N. S.) 1000. See "Constitutional Law," Dec. Dig. (Key No.) § 111; Cent. Dig. §§ 267-269. 812 League v. Texas, 184 U. S. 156, 22 Sup. Ct. 475, 46 L. Ed. 478; Campbell T. Holt, 115 V. B. 620, 6 Sup. Ct. 209, 29 L. Ed. 483 ; Converse v. Ayer, 197 .Mass. 443, 84 N. E. 98 ; Hope v. Johnson, 2 Yerg. (Tenn.) 123 ; Town of Dan- 604 CIVIL RIGHTS AND THEIR PROTECTION. (Ch. 18 of injuries must be instituted within a certain time or else be forever barred. Any statute of limitations must afford an opportunity to bring- an action within a reasonable time. Rights cannot be cut off arbi- trarily."^ But if this condition is satisfied, the negligent or slothful suitor, when confronted with the bar of the statute of limitations, cannot complain that he is unjustly deprived of his vested rights.^^* On the contrary, the right to plead the statute as a defense becomes a vested right which cannot be interfered with or destroyed by re- viving the cause of action,^ ^° at least in cases where the title to prop- erty has vested under the statute,"' though it is held that where the demand is for a personal debt or on a contract, or in any class of ac- tions where the statute merely gives a defense without vesting prop- erty, there is no vested right to such mere defense, and the repeal or enlargement of the statute would not be unconstitutional as applied to a cause of action of this character, though it was already barred.^^^ Rules of Evidence. In criminal prosecutions, as we shall presently see, the accused has a right to be tried by the rules of evidence in force at the time of the commission of the alleged offense, or, at least, to be exempt from the retroactive operation of any statute which would change the rules of evidence to his disadvantage, as by making less or different evidence sufficient to convict him. But, in civil issues; the rules of evidence are ville V. Pace, 25 Grat. (Va.) 1, 18 Am. Rep. 663. See "Constitutional Law," Deo. Dig. (Key No.) § i06; Cent. Dig. §§ 212, 238-259. 313 Chapman v. Douglas County, 107 U. S. 348, 2 Sup. Ct. 62, 27 L. Ed. 378; Moody V. Hoskins, 64 Miss. 468, 1 South. 622. See "Constitutional Law," Dec. Dig. (Key No.) i lOT ; Cent. Dig. §§ 21i6-251. 3i4Guiterman v. Wishon, 21 Mont. 4.58, 54 Pac. 566; Rodebaugh v. Phila- delphia Traction Co., 190 Pa. 358, 42 Atl. 953. See "Constitutional Law," Dec Dig. (Key No.) § lOT; Cent., Dig. U 2Jf6-251. 315 Edelstein v. Carlile, 33 Colo. 54, 78 Pac. 680; Lawrence v. City of Louis- ville, 96 Ky. 595i 29 S. W. 450, 27 L. R. A. 560, 49 Am. St. Rep. 309 ; Ireland V. Mackintosh, 22 Utah, 296, 61 Pac. 901 ; Eingartner v. Illinois Steel Co., 103 Wis. 373, 79 N. W. 433, 74 Am. St. Rep. 871. See "Constitutional Law," Dec. Dig. (Key No.) i lOT; Cent. Dig. §§ 2Jf6-251. 316 Power V. Telford, 60 Miss. 195 ; McEldowney v. Wyatt, 44 W. Va. 711, 30 S. E. 239, 45 L. R. A. 609. See Scales v. Doe ex dem. Otts, 127 Ala. 582, 29 South. 63. See "Constitutional Law," Deo. Dig. (Key No.) § lOT; Cent. Dig. §§ 246-251. 817 Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. 209, 29 L. Ed. 483; McEl- downey V. Wyatt, 44 W. Va. 711,^30 S. E. 239, 45 L. R. A. 609. See "Consti- tutional Law," Dec. Dig. (Key No.) § 101 i Cent. Dig. §§ 2i6-251. § 225) PBOTECTIOM OP VESTED BIQHTS. 605 not grants of a right from the state to the private suitor, nor are they property in which any person can have a vested right. They are a part of the substantive law of the state, and the legislature has the power to make such rules, or to modify or repeal those already exist- ing, and make them applicable to pending controversies, subject only to such specific restrictions as may be found in the constitution.''^^ But still it is possible to frame rules of evidence which would indi- rectly cut off vested rights, by making it impossible for the owner to secure their recognition or enforcement by the courts; and this, of course, would be constitutionally inadmissible. Such would be the case with a statute making tax deeds conclusive evidence of good title in the tax purchaser.'^* Judgments. It cannot be said that the mere rendition of a judgment gives the successful party a vested 'right to insist that it shall not be subject to review or re-examination otherwise than in, accordance with the law in force .at the time.'^" Yet a judgment, final or not appealed from, is a vested right of property in such sense that the legislature cannot destroy or diminish its value or deprive the owner of the fruits of Penalties and Forfeitures. Though all the conditions may be satisfied which entitle a person to recover a statutory penalty (such as exemplary damages, three-fold SIS Southern Ry. Co. v. Tift, 148 Fed. 1021, 79 C. C. A. 536; Mallery v. Frye, 21 App. D. O. 105 ; Campbell v. Skinner Mfg. Co., 53 Fla. 632, 43 South. 874 ; Wheelock v. Myers, 64 Kan. 47, 67- Pac. 632 ; State v. Kline, 50 Or. 426, 93 Pac. 237 ; State v. Weston, 3 Ohio Dec. 15 ; Haney v. Gartin (Tex. Civ. App.) 113 S. W. 166; Ariola v. Newman (Tex. Civ. App.) 113 S. W. 157; McKin- stry V. Collins, 76 Vt. 221, 56 Atl. 985 ; In re McNaughton's Will, 138 Wis. 179, 118 N. W. 997 ; Sandberg v. State, 113 Wis. 578, 89 N. W. 504 ; Downs v. Blount, 170 Fed. 15, 95 C. C. A. 289. See "Constitutional Law," Dec. Dig. (Key No.) § X09; Cent. Dig. §§ 260-263. 819 Kelly V. Herrall (C. C.) 20 Fed. 364; Ensign v. Barse, 107 N. Y. 329, 14 N. E. 400; McOready v. Sexton, 29 Iowa, 356, 4 Am. Rep. 214; Wilson v. Wood, 10 Okl. 279, 61 Pac. 1045. See "Constitutional Law," Deo. Dig. (Key No.) § 109; Cent. Dig. §§ 260-263. 320 Stephens v. Cherokee Nation, 174 U. S. 445, 19 Sup. Ct. 722, 43 h. Ed. 1041. See "Constitutional Law," Dec. Dig. (Key No.) §§ 110, 111; Cent. Dig. «§ 264-269. 321 Village of New Holland v. Holland, 99 111. App. 251; Chiles v. School Dist of Buckner, 103 Mo. App. 340, 77 S. W. 82; Merchants' Bank of Dan- vUle V. Ballou, 98 Va. 112, 32 S. E. 481, 44 L. R. A. 306, 81 Am, St. Rep. 715. 606 CIVIL RIGHTS AND THEIR PROTECTION. (Ch. 18 interest on an usurious contract, or the informer's share in a qui tarn action) he has no vested right in the penahy until it is enforced, or at least until the recovery of a final judgment for it; before that, his rights may be destroyed by a repealing statute.'" SEARCHES AND SEIZURES. 226. The fourth amendment to the federal constitntion provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath ot affirmation, and particu- larly describing the place to be searched and the persons or things to be seized." And in all the states a similar guaranty has been made a part of the organic law. 227. These constitutional provisions protect the citizen against — (a) All unauthorized intrusion into his dwelling house by o£Bcers or others claiming to act under the authority of the law, (b) The search of his person or clothing, except irhen he is lawfully under arrest or charged with crime. (c) The compulsory production of his boohs and papers to be used as evidence against him. (d) The unlicensed examination of the contents of letters or sealed packages intrusted by him to the government for transmission through the mails. (e) The search of his house for specific property alleged to be there- in, in aid of the enforcement of the criminal laws or police reg- ulations, except it be under the authority of a search warrant lawfully issued, and complying with all constitutional and statutory requirements. Constitutional Provisions. The fourth amendment to the constitution of the United States does not extend to the state governments nor apply to proceedings in the state courts, but is a restriction only on the legislature and judiciary kee Tucker v. State, 163 Ind. 403, 71 N. E. 140. See "Constitutional Law." Dec. Dig. (Key Vo.) §§ 110, 111; Cent. Dig. §§ S6.',-269.. 322 Confiscation Cases, 7 Wall. 454, 19 L Ed. 196 ; United States v. Tynen, 11 Wall. 88, 20 L. Ed. 153 ; President, etc., of Oriental Bank v. Freeze, 18 Me. 109, 36 Am. Dec. 701 ; Anderson v. Byrnes, 122 Oal. 272, 54 Pac. 821 ; Atwood V. Buckingham, 78 Conn. 423, 62 Atl. 616 ; Pierce v. Kimball, 9 Me. 54, 23 Am. Dec. 537 ; Fire Department of West Troy v. Ogden, 59 How. Prac. (N. Y.) 21 ; Davidson v. Witthaus, 106 App. Div. 182, 94 N. Y. Supp. 428; Parmelee v. Lawrence, 44 111. 405 ; Bank of St. Mary's v. State, 12 Ga. 475. See "Consti- tutional Law," Dec. Dig. (Key No.) § 104; Cent. Dig. §§ 177, 233. §§ 226-227) SEARCHES AND SEIZURES. 607 of the Union.' ^* So far as it extends, however, its benefits are not confined to the citizens of the United States, but may be invoked in behalf of a resident alien.'^* But similar guaranties have been incor- porated in the constitutions of all the states. They are to be under- stood as a limitation upon the power of the state and its officers to make searches and seizures for its own benefit, but have no reference to the unauthorized acts of individuals.*'^" Security of the Dwelling. It was the boast of the English common law that "every man's house is his castle." In the familiar words of Chatham, "the poorest man may, in his cottage, bid defiance to all the forces of the crown. It majr^be frail ; its iroof may shake ;. the wind may blow through it ; the storni may enterik the rain may enter; but the king of England may not enter ; all his fiprce dares not cross the threshold of the ruined tenement." Nor was this conception of the sanctity of the private dwelling known only to the ancient law of our parent country. In the imperial law of Rome it was expressed in the noble maxim, "Do- mus sua cuique est tutissimum refugium," and in the correlative rule, "Nemo de domo sua extrahi potest." Such, therefore, is the jealous care with which the law protects the privacy of the home, that the owner may close his doors against all unlicensed entry and defend the possession and occupancy of his house against the intruder by the em- ployment of whatever force may be needed to secure his privacy, even, in extreme cases, to the taking of life itself. A man assaulted in his own dwelling is not obliged to "flee to the wall," but he may defend his home, which is his castle of refuge, to any and all extremities.^^* It will therefore be seen that the right of security in the dwelling, 323 People V. Adams, 176 N. Y. 351, 68 N. E. 636, 63 L. R. A. 406, 98 Am. St. Rep. 675 ; Hammond Packing Co. v. State, 81 Ark. 519, 100 S. W. 407, 126 Am. St. Rep. 1047 ; Reed v. Rice, 2 J. J. Marsh. (Ky.) 45, 19 Am. Dec. 122. See "Searches and Seizures," Dec. Dig. (Key No.) § 7; Cent. Dig. § 5. 324 United States v. Wong Quong Wong (D. C.) 94 Fed. 832. See "Searches and Seizures," Dec. Dig. (Key No.) § 7; Cent. Dig. § 5. 32 5 Bacon v. United States, 97 Fed. 35, 38 C. 0. A. 37; Imboden v. People, 40 Colo. 142, 90 Pac. 608. See "Searches and Seizures," Dec. Dig. (Key No.) § 7; Cent. Dig. § 5. 326Estep V. Commonwealth, 86 Ky. 39, 4 S.W. 820, 9 Am. St. Rep. 260-, State V. Peacock, 40 Ohio St. 333 ; People v. Dann, 53 Mich. 490, 19 N. W. 159, 51 Am. Rep. 151. See "Assault and Battery," Dec. Dig. (Key No.) §§ 15, 69; Cent. Dig. §§ 13-15, 99-101; "Bomicide;' Dec. Dig. (Key No.) §§ 1S3, 124; Cent. Dig. §§ 182-188. 608 CIVIL BIGHTS AND THEIR PROTECTION. (Ch. 18 justly esteemed one of the most important of civil rights, was not created by and did not depend upon the constitution, but existed long before, and was merely guarantied and secured by that instrument."' And although the constitutional provisions relate only to the privilege of the domicile against unreasonable searches and seizures, yet, if there be any other way in which the lawful rights of the dwelling may be invaded, it is adequately forbidden and punished by the common law. When an Entry may be Forced. The privacy of the dhvelling it not to stand in the way of the due execution of the laws, nor is a man's house a sanctuary for those who are amenable to the criminal justice of the state. An entry into a private house may be forced by the officers of the law for the purpose of capturing a felon, or in order to arrest a person, known to be in hiding there, for treason, felony, or breach of the peace. Again, the house may be entered, and the owner evicted, when he is no longer entitled to hold the possession of the property, that right having passed to another by law ; when it becomes necessary to destroy the building in order to prevent the spread of a conflagration; '^' and when it is necessary to examine into the sanitary conditions of the house, or to remove or quarantine a person lying sick therein of a dangerous contagious disease.'^' But with these exceptions, the only manner 327 u. S. V. Crosby, 1 Hughes, 448, Fed. Cas. No. 14,893. No amount of In- criminating evidence will justify the search of a residence for stolen goods, without a warrant. McQurg v. Brenton, 123 Iowa, 368, 98 N. W. 881, 65 L. R. A. 519, 101 Am. St. Rep. 323. The house occupied by a social club, for club purposes, stands on much the same footing as the private residence of an in- dividual. Police officers have no right to enter such a club house, except with a warrant authorizing them to do so, or unless in immediate pursuit of a flee- ing criminal or on a call of danger from some one within. Devlin v. McAdoo, 49 Misc. Rep. 57, 96 N. Y. Supp. 425. See "Searches and Seisures," Dec. Dig. (Key No.) § 7; Cent. Dig. § 5. 32 s A house in a town may be pulled down and removed, to arrest the spread of a fire, where it is inevitable that the house will take fire and be consumed If It is permitted to stand, and it is inevitable that, if it takes fire and is consumed, it will spread the fire to other houses. Beach v. Trudgain, 2 Grat (Va.) 219; Surocco v. Geary, 3 Cal. 69, 58 Am. Dec. 385; Stone v. City of New York, 25 Wend. (N. Y.) 157. See "Constitutional Law," Dec. Dig. (Key No.) § S20; Cent. Dig. § 77i; "Eminent Domain," Deo. Dig. (Key No.) § 2; Gent. Dig. § 7. 329 When a person sick with a dangerous contagious disease is quarantined in his own house, the health officers may enforce stringent regulations for the §§ 226-22Y) SEARCHES AND 8EIZUBE8. 609 in which officers can force their way into a dwelling house against the will of the proprietor, is by the sanction and command of a search warrant, the requisites of which we shall presently consider. With regard to the service of mere civil process, the rule is that the officer may not break or force open the outer door ; but if he has lawfully gained an entry into the tenement, without force, he may then break open an inner door if he must do so in order to execute his writ.*'" Right to Search the Person. Police officers may search the person of one lawfully under arrest or seized while resisting a lawful arrest or while engaged in the com- mission of a crime or endeavoring to escape, for the purpose of dis- covering the instruments used in the commission of the crime or ar- ticles which may be used in evidence to prove the charge on which he is arrested.'*^ But they have no right to arrest and search a person, without a warrant, on mere suspicion that he is violating the law, as, for example, by carrying a deadly weapon concealed on his person.*'* Compulsory Production of Papers. It will be observed that the constitutional provisions against un- reasonable searches and seizures apply not merely to a man's house, but also to his person and his papers. The force and effect of this part of the provision was fully considered in a case before the supreme court of the United States, in regard to a clause of the customs revenue law which authorized a federal court, in revenue cases, on motion of the government's attorney, to require the defendant to produce in court his private books, invoices, and papers, and directed that, if he prevention of the spread of the disease, but, unless fully authorized by stat- ute, they cannot talje entire possession of the house and virtually turn it into a hospital. Spring v. Inhabitants of Hyde Paris, 137 Mass. 554, 50 Am. Rep. 334 ; Brown v. Murdock, 140 Mass. 314, 3 N. E. 208. See "Health," Dec. Dig. (Key No.) § S4; Cent. Dig. § 27. 830 Semayne's Case, 5 Oolie, 91. And see Weimer v. Bunbury, 30 Mich. 201. See "Searches and Seizures," Dec. Dig. (Key No.) § 7; Cent. Dig. § 5. BsiChastang v. State, 83 Ala. 29, 3 South. 304; Smith v. Jerome, 47 Misc. Rep. 22, 93 N. Y. Supp. 202 ; State v. Edwards, 51 W. Va. 220, 41 S. E. 429, 59 li. R. A. 465. See "Arrest," Dec. Dig. (Key No.) § 71; Cent. Dig. § II4. 832 Pickett V. State, 99 Ga. 12, 25 S. E. 608, 59 Am. St. Rep. 226; Hughes V. State, 2 Ga. App. 29, 58 S. E. 390 ; Hughes v. Commonwealth, 19 Ky. Law Rep. 497, 41 S. W. 294. Compare Keady v. People, 32 Colo. 57, 74 Pac. 892, 66 h. R. A. 353. See "Searches and Seizures," Dec. Dig. (Key No.) § 7; Cent. Dig. § 5. BL.CoNST.Ii.(3D.BD.)— 39 610 CIVIL RIGHTS AND THEIR PROTECTION. (Ch. 18 refused to do so, the allegations of the government might be taken as confessed. It was held that it does not require an actual entry upon premises and a physical search for and seizure of papers to constitute an unreasonable search and seizure within the meaning of the fourth amendment. A compulsory production of a party's private books and papers, to be used against himself or his property in a criminal or penal proceeding or for a forfeiture, is within the spirit and meaning of that amendment. And it is equivalent to such compulsory produc- tion to make the non-production of the papers a confession of the al- legations which-it is pretended they would prove.''' At the same time, this amendment was not intended to interfere with the power of the courts to compel the production of documentary evidence in proper cases, and especially in mere civil suits and proceedings. Hence the ordinary and' proper use of the writ of subpoena duces tecum (or a bill of discovery in equity) requiring the production of books and papers is not contrary to the fourth amendment, where there is no design to convict a person of a breach of the criminal or penal laws on the evidence of his own records."* Neither is there any violation of this constitutional provision by a statute giving to tax officers the right to examine books and papers of taxpayers for the purpose of properly listing and assessing their taxable property.'" 333 Boyd V. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 D. Ed. 746. And see United States v. Wong Quong Wong (D. C.) 94 Fed. 832 ; In re Moser, 138 Mich. 302, 101 N. W. 588. To compel the wife of a bankrupt, under examina- tion as a -witness in the bankruptcy proceedings, to disclose confidential com- munications made to her by her husband in regard to his property, would be contrary to the fourth amendment. In re Jefferson (D. C.) 96 Fed. 826. See "Searches and Seizures," Dec. Dig. (Key No.) § 7; Cent. Dig. § 5. 33* Consolidated Rendering Co. v. Vermont, 207 U. S. 541, 28 Sup. Ct. 178, 52 L. Ed. 327 (affirming In re Consolidated Rendering Co., 80 Vt. 55, 66 Atl. 790) ; Hale v. Henliel, 201 U. S. 43, 26 Sup. Ct 370, 50 L. Ed. 652 ; Santa F6 Pac. R. Co. V. Davidson (C. C.) 149 Fed. 608 ; Anti-Kalsomine Co. v. Kent Cir- cuit Judge, 120 Mich. 250, 79 N. W. 186 ; State v. District Court of Second Judicial Dist., 27 Mont. 441, 71 Pac. 602, 94 Am. St. Rep. 831. But a subpoena duces tecum may be an "unreasonable" search, as where it requires the offi- cers of a corporation to produce all its correspondence, documents, and papers from the time of its organization down to the date of the writ, and this for the purpose of discovering evidence to convict it of a violation of the anti- trust laws. In re Hale (C. C.) 139 Fed. 496. See "Searches and Seizures," Dec. Dig. (Key No.) § 7; Cent. Dig. § 5; "Witnesses," Dec. Dig. (Key No.) § 16; Cent. Dig. §§ 19-21. 33 5 Co-operative Building & Loan Ass'n v. State, 156 Ind. 463, 60 N. E. 146. And see Washington Nat. Bank v. Daily, 166 Ind. 631, 77 N. E. 53; In re §§ 226-227) SEARCHES AND SEIZURES. 611 Inviolability of the Mails. The same principle which protects a man's private papers in his own house from unreasonable search and seizure should also secure their inviolability when he confides them to the custody of the government for the purpose of transmission through the mails. "Letters and sealed packages in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describ- ing the thing to be seized, as is required when papers are subjected to search in one's own household. No law of congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the fourth amend- ment of the constitution." ^^^ General Warrants. The proximate cause for the introduction of this provision into the federal bill of rights was the apprehension that there might be an abuse of official power similar to that which had disgraced the reign of more than one English sovereign, under the system of inquisitorial proceedings called the issue of "general warrants.'' These warrants were used principally in the case of political offenses, and directed the arrest of the authors, printers, and publishers of obscene and seditious libels, and the seizure of their papers. They were issued by the secre- taries of state, and authorized the officers to search all suspected places and seize all suspected persons. But their illegality consisted in the fact that no individual was specially named or described, or that no specific description of the place to be searched was given. The execution of Conrades, 112 Mo. App. 21, 85 S. W. 150. See "Searches and Seizures," Dec. Dig. (Key No.) § 7; Cent. Dig. § 5. 336 Ex parte Jackson, 96 U. S. 727, 733, 24 L. Ed. 877. And see U. S. v. Eddy, 1 Biss. 227, Fed. Cas. No. 15,024 ; Hoover v. McChesney (C. C.) 81 Fed. 472 ; United States v. Wong Quong Wong (D. C.) 94 Fed. 832. See "Searches and Seizures," Dec. Dig. (Key No.J § 7; Cent. Dig. § 5; "Post Office," Dec. Dig, (Key No.J § 47; Cent. Dig. § 65. 612 CIVIL RIGHTS AND THEIR PROTECTION. (Ch. 18 the warrant was therefore left very much to the caprice of the officer. These warrants were plainly contrary to the spirit of the common law, and in violation of private rights. And they were liable to be wielded as instruments of tyranny in the hands of corrupt officials. Yet they continued in use until 1763, at which time the court of king's bench declared that they were illegal, and allowed the recovery of damages by those whose rights had been invaded under such warrants.*" Search Warrants. The constitutions do not forbid the issue of search warrants. They only prohibit "unreasonable" searches. Generally speaking, the con- stitutional requirements as to the issue of such warrants are only three in number: First, no warrant shall issue but upon probable cause, and this "probable cause" must be madle out by a sufficient showing to the court or magistrate applied to for the warrant that such a case exists as is contemplated by the law as proper for the use of this writ; *^^ second, the application must be supported by an oath or af- firmation; third, the warrant must particularly describe the place to be searched and the persons or things to be seized. But there are cer- tain other requisites derivable from clear implications from the consti- tution or from the general principles of law. Thus, the constitutions, while regulating the issuance of such warrants, do not grant the power to issue them. Consequently, no court or judge has inherent power to grant such a writ, but it must be authorized by statute. Again, the general rules of law require that such process should be executed by an officer of the law. And, further, since this process is not final pro- cess, but is only used as a means to some further end, it will not au- thorize the officer executing the writ to make any final disposition of the property which may be seized under it. Any articles so taken must be brought before the court or magistrate, to be proceeded against and disposed of according to law. Even stolen goods cannot be re- 837 Wilkes V. Wood, 19 How. St. Tr. 1153, Broom, Const. Law, 544; Leach V. Money, 19 How. St. Tr. 1001, Broom, Const. Law, 522 ; Entlck v. Carring- ton, 19 How. St. Tr. 1030; Broom, Const. Law, 555; 2 Story, Const. § 1902; Pom. Const. Law, § 241. See "Searches and Seizures," Dec. Dig. (Key No.) § 7; Cent. Dig. § 5. 338 A statute which, permits the issuance of a search warrant on an affi- davit that the complainant "believes" the defendant has the former's property unlawfully in his possession is unconstitutional, as it permits a search with- out an affidavit that a crime has actually been committed. Lippman v. People, 175 111. 101, 51 N. E. 872. See "Searches and Seizures," Dec. Dig. (Key No.) §§ 3, 7; Cent. Dig. §§ 2, 5. §§ 226-227) BEABCHES AND SEIZURES. 613 stored to their owner immediately upon their recovery by a search warrant; and, if the property taken is claimed to have been kept or concealed in violation of law, it cannot be forfeited or destroyed until the facts shall have been duly ascertained according to law, and the owner accorded an opportunity to defend.*'" As a general rule, search warrants are to be employed only as an aid in the enforcement of the criminal laws. They may be issued for the recovery of goods alleged to have been stolen,'*" for the dis- covery of merchandise smuggled into the country and concealed to avoid the payment of duties,'*^ for intoxicating liquors kept or in- tended for sale in violation of law,'*^ for instruments and apparatus used in gambling,'*' for the seizure of lottery tickets or materials for drawing a lottery,'** and for forged warrants, writs, certificates, or other such legal documents.'*" But a statute authorizing the issue of warrants, by judges of insolvency, on the complaint of an assignee, to search for property of the debtor, is unconstitutional and void.'** Nor is this warrant ever allowed to be used solely as the means of obtaining evidence against a person accused of crime. It is true that in some few cases, as in the search for stolen goods, the discovery of the article in question may furnish an item of evidence against the possessor of it. But in all such cases, either the complainant or the public has some interest in the property or in its destruction, and the finding of evidence is not the immediate reason for issuing the war- rant. But it was settled by the common law, in the cases of the "gen- eral warrants," and has always been the understanding of the Ameri- 330 As to the requisites of search warrants, see Blsh. Cr. Proc. §§ 240-246; Stim. Am. St. Law, § 71. 3 40 Stone V. Dana, 5 Mete. (Mass.) 98. See "Searches and Seizures," Deo. Dig. (Key No.) § 3; Cent. Dig. § 2. 341 Rev. St. U. S. § 3066 (U. S. Comp. St. 1901, p. 2008). 342 Fisher v. McGlrr, 1 Gray (Mass.) 1, 61 Am. Dec. 381. See "Searches and Seizures," Dec. Dig. (Key No.) §§ 3, 7; Gent. Dig. §§ 2, S; "Intoxicating Liq- uors," Dec. Dig. (Key No.) §§ 20, 2U-Z57; Cent. Dig. §§ 26, S64-S96. 34 3 Hastings v. Haug, 85 Mich. 87, 48 N. W. 294; Commonwealth v. Gaming Implements, 119 Mass. 332. See "Gaming," Dec. Dig. (Key No.) § 60; Cent. Dig. % m. 344 Commonwealth v. Dana, 2 Mete. (Mass.) 329; People v. Noelke, 29 Hun. (N. Y.) 461. See "Lotteries," Dec. Dig. (Key No.) § 18; Cent. Dig. § 19. 346 Langdon v. People, 133 111. 382, 24 N. E. 874. See "Searches a/nd Sei- eures," Dec. Dig. (Key No.) § 7; Cent. Dig. § 5; 34 6 Robinson v. Richardson, 13 Gray (Mass.) 454. See "Insolvency" Dec, Dig. (Key No.) §§ 38-43; Cent. Dig. §§ 47-S5. 014 CIVIL RIGHTS AND THEIR PROTECTION. (Ch. 18 can people, that this process could not be employed as a means of gaining access to a man's house or his letters and papers for the mere and sole purpose of securing evidence to be used against him in a criminal or penal proceeding. Such methods would also be inconsist- ent with the great principle of constitutional law in criminal cases that no man shall be compelled to furnish evidence against himself. Both of these provisions relate to the personal security of the citizen. And when the compelling a man to be a witness against himself is the very object of a search and seizure of his private papers, it is an "un- reasonable" search and seizure within the meaning of the constitutional prohibition.'*^ Search Warrants in Aid of Police Regulations. It is within the power of a state legislature, in the exercise of its powers of police, to declare the possession of certain articles of prop- erty (such as intoxicating liquors, explosives, obscene publications, or gambling devices) either absolutely or in particular places and under particular circumstances, to be unlawful, because they would be injurious, dangerous, or noxious, and it may authorize the issue of search warrants and the seizure and confiscation or destruction of such artiqles, so it be by due process of law.'*^ But a law au- thorizing the search for and seizure of liquor, which does not require any notice of the nature and cause of the accusation to be given to the accused, nor provide any means by which he is to be informed when, or before whom, or where the search warrant is returnable, or for a trial of the question of the violation of the law, is in conflict with the constitutional guaranty and therefore void.^*' And of course the same principle, in regard to the requirement of notice and a ju- dicial investigation, applies equally to all other cases in which search 347 Boyd V. TJ. S., 116 U. S. 616, 6 Snp. Ct. 524, 29 L. Ed. 746. See "Searches and Seizures," Deo. Dig. (Key No.) § 7; Cent. Dig. § 5. S48 Fisher v. McGirr, 1 Gray (Mass.) 1, 61 Am. Dec. 381 ; State v. Brennan's Liquor, 25 Conn. 278; Allen v. Staples, 6 Gray (Mass.) 491; Gray v. Kim- ball, 42 Me. 299; Santo v. State, 2 Iowa, 165, 63 Am. Dec. 487; State v. O'Neil, 58 Vt. 140, 2 Atl. 586, 56 Am. Kep. 557 ; Jones v. Root, 6 Gray (Mass.) 435. See "Searches and Seizures," Dec. Dig. (Key No.) § 7; Cent. Dig. § 5; "Constitutional Law," Dec. Dig. (Key No.) § 278; Cent. Dig. § 778. 348 Hibbard v. People, 4 Mich. 125 ; Fisher v. McGirr, 1 Gray (Mass.) 1, 61 Am. Dec. 381 ; Greene v. James, 2 Curt. 187, Fed. Gas. No. 5,766 ; State v. Snow, 3 K. I. 64. See "Searches and Seizures," Dec. Dig. (Key No.) § 7; Cent. Dig. § 5; "Intoxicating Liquors," Dec. Dig. (Key No.) §§ 20, 2U-25T; Cent. Dig. %% 26, 36k-S9G. §§ 226-227) SEARCHES AND SEIZURES. 615 warrants Inay be authorized in pursuance of the power of police. Thus, a statute making it illegal to maintain nets within half a mile of the mouth of certain rivers, and providing for the confiscation of such nets, in so far as it relates to such confiscation, is unconstitutional, if it deprives the owner of his property without notice or service of process.^ °" Search Warrants in Aid of Sanitary Regulations. There are some cases in which the privacy of the dwelling must be subordinated to the enforcement of necessary police regulations for the preservation of the public health, particularly in populous cities. Thus, it may be necessary to search private houses for the purpose of inspecting their sanitary condition, or to ascertain the existence of a nuisance detrimental to health, or to discover persons who are affected with a dangerous disease such as threatens an epi- demic. Such inspections are usually conducted under the orders of the health officers, and are so seldom resisted that the question of their legality does not appear to have come before the courts. But if an entry into a private house could not be obtained, for such purposes, without the employment of force, it is probable that the case would justify the issue of a search warrant.^^^ %' Time of Execution of Warrant. At common law, a search warrant was always directed to be ex- ecuted by day, and it was doubtful whether it could be lawfully ex- ecuted in the night time, even if no time was limited in the direc- tion.^ °^ But search warrants issued in aid of the enforcement of the police or sanitary regulations of the state are not common law warrants, but rest entirely on statute. Consequently, it is not neces- sary to their validity that they, should limit the service to the day time.^"' 350 state v. Owen, 3 Ohio N. P. 181. See "Constitutional Law" Deo. Dig. (Key No.) § 278; Gent. Dig. § 823. 8 61 Tied. Lim. 464. 3 52 2 Hale, P. 0. 150. In a statute forbidding the search of a dwelling house in the "nighttime," this term means the space of time during which the sun is below the horizon, except the space which precedes its rising and follows its setting during which, by its light, the countenance of a man may be dis- cerned. Petit V. Colmery, 4 Pennewill (Del.) 266, 55 Atl. 344. This was the common-law definition of the "crepusculum" or twilight, as it was applied in the law of burglary. See "Searches and Seizures," Dec. Dig. (Key No.) § 3. 8 63 Commonwealth v. Hinds, 145 Mass. 182, 13 N. E. 397; State v. Bren- 616 CIVIL BIGHTS AND THEIB PROTECTION. (Ch. 18 Military Orders. The constitutional provision against unreasonable searches and sei- zures cannot be understood to prohibit a search or seizure madte in attempting to execute a military order authorized by the constitution and a lav/ of congress, where the jury have found that the seizure was proper and reasonable.'^* QUARTERING OF SOLDIERS. 228. The third amendment to the federal constitution provides that "no soldier shall, in time of peace, be quartered in any house, ivithout the consent of the owner, nor in time of war, hut in a manner to he prescribed by law." And similar provisions are found in the constitutions of many of the states. This provision was probably suggested by a clause of the Petition of Rights presented to Charles I., wherein it was stated that "great companies of soldiers and mariners have been dispersed into diverse counties of the realm, and the inhabitants against their wills have been compelled to receive them into their houses and there to suffer them to sojourn, against the laws and customs of this realrh, and to the great grievance and vexation of the people." Also, one of the grievances set forth in the Declaration of Independence was the "quartering of large bodies of armed troops among us." There has never been any necessity for the courts to extend to individuals the protection guarantied by this provision, and the clause is of historical interest only. It is an additional guaranty of the security and privacy of a man's dwelling house. "Its plain object," says Story, "is to secure the perfect enjoyment of that great right of the common law, that a man's house shall be his own castle, privileged against all civil and military intrusion." '°'' Dan's Liquors, 25 Conn. 278. See "Intoxicating Liquors," Dec. Dig. (Key No.) i 2i9; Cent. Dig. |§ S7S, 383. 354 Allen V. Colby, 47 N. H. 544. See "Searches and Seizures," Dec. Dig, Key No.) § 7; Cent. Dig. § 5. S6 6 2 Story, Const. § 1000. § 229) EIGHT TO OBTAIN JUSTICE FREELY. 617 BIGHT TO OBTAIN JUSTICE FBEEI■ Van Valkenburg v. Brown, 43 Cal. 43, 13 Am. Rep. 136. See "Citizens;' Dec. Dig. (Keu No.) § 3; Cent. Dig. § 1. 3 Bums V. State, 48 Ala. 195, 17 Am. Rep. 34. See "Civil Rights," Dec. Dig. (Key No.) § Ij Cent. Dig. § 1. i Minor v. Happersett, 21 Wall. 162, 22 L. Ed. 627. And see United States V. Wong Kim Arls, 169 U. S. 649, 18 Sup. Gt. 456, 42 L. Ed. 890. See "Citi- eens," Deo. Dig. (Key No.) | S; Cent. Dig. § i. §§ 234r-239) CITIZENSHIP. 633 Definition of Citizenship. Citizenship is the status or character of being a citizen. And a citizen of a given state or country is one who owes it allegiance and is entitled to its protection. = The two correlative ideas of allegiance and protection form the basis of the legal and political conception of citizenship. The citizen is subject to the jurisdiction of his country and to its laws. He owes it loyalty, his services at need, and his money to defray its expenses. In return he is entitled to claim its protection against domestic violence and foreign oppression. The possession of civic rights is not the test of citizenship. There are many who are -legally incapable of voting for public officers or of filling the offices themselves, who are none the less citizens. Neither is mere inhabi- tancy of a country a test of citizenship. For resident aliens owe a lo- cal and temporary allegiance to the state wherein they live and are amenable to its ordinary laws. But where the two characteristics of allegiance and protection are found in their completeness and together, there citizenship exists. Native Born Citizens. The fourteenth amendment divides the citizens of the United States into two classes. First, those who are born in the United States and subject to the jurisdiction thereof.* Second, those who are naturalized in the United States and subject to the jurisdiction thereof. In order 5 Allegiance is the obedience due to the sovereign; and persons born in the allegiance of the king are his natural subjects and no aliens. The allegiance is not limited to any spot, and is due to the king in his natural capacity, rather than his political capacity. Calvin's Case, 2 How. St. Tr. 559. As the constitution nowhere defines the meaning of the words "citizen of the United States," except by the declaration on that subject in the fourteenth amend- ment, resort must be had to the common law, the principles of which were familiar to the framers-of the constitution. United States v. Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct. 456, 42 L. Ed. 890. The character or attribute of having "citizens" can belong only to a sovereign state or nation ; legally there is no such thing as being a citizen of a county or any other municipality; De- vanney v. Hanson, 60 W. Va. 3, 53 S. E. 603. The mode and manner of ascer- taining the fact of citizenship is for congress to determine, and it may vest the power to determine such fact exclusively in executive officers. United States V. Lee Huen (D. O.) 118 Fed. 442. See "Citizens," Dec. Dig. (Key No.) g 2; Cent. Dig. § 1. « An act of congress passed in 1866 provides that "all persons bom in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States," Eev, St. U. S. § 1992 (U. S. Oomp. St. 1901, p. 1268). 634 POLITICAL AND PUBLIC EIGHTS. (Ch. 19 to belong to the first class two things must concur. The person must have been born within the United States and subject to the jurisdic- tion thereof. This jurisdiction "must at the time be both actual and exclusive. The words mentioned except from citizenship children born in the United' States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence, by a fiction of public law, is regarded as a part of their own country. This extra-territoriality of their residence secures to their children born here all the rights and privileges which would inure to them had they been born in the country of their parents. Persons born on a public vessel of a foreign country, whilst within the waters of the United States and consequently within their territorial jurisdic- tion, are also excepted. They are considered as born within the coun- try to which the vessel belongs. In the sense of public law, they are not born within the jurisdiction of the United States." '' So if a stranger or traveler passing through the country, or temporarily re- siding here, but who has not himself been naturalized and who claims to owe no allegiance to our government, has a child born here, who goes out of the country with his father, such child is not a citizen of the United States, because he was not subject to its jurisdiction.' But the children, born within the United States, of permanently resident aliens, who are not diplomatic agents or otherwise within the excepted classes, are citizens.' And this is true even where the parents belong to a race of persons (such as the Chinese) who cannot acquire citizen- ship for themselves by naturalization.^" Children of American par- T In re Look Tin Sing (C. C.) 21 Fed. 905. See "Citizens," Dec. Dig. (Key No.) § 3; Cent. Dig. § 2. 8 Miller, Const. 279. » United States v. Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct. 456, 42 L. Ed. 890; In re Wong Kim Ark (D. C.) 71 Fed. 382; In re Giovanna (D. C.) 93 Fed. 659; United States v. Rhodes, 1 Abb. U. S. 28, Fed. Cas. No. 16,151; Stadtler v. School Dist. No. 40, 71 Minn. 311, 73 N. W. 956 ; Ehrlich v. Weber, 114 Tenn. 711, 88 S. W. 188. A child born within the United States and sub- ject to the jurisdiction thereof does not lose his citizenship by the fact that his father afterwards renounces his allegiance and becomes a subject of a foreign power. Lamoreaux v. Attorney General, 89 Mich. 146, 50 N. W. 812. See "Citizens," Dec. Dig. (Key No.) § S; Cent. Dig. § 3. 10 United States v. Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct. 456, 42 L. Ed. 890 ; Sing Tuck v. United States, 128 Fed. 592, 63 C. C. A. 199; Lee Sing Far V. United States, 94 Fed. 834, 35 G. C. A. 327 ; In re Wong Kim Ark (D. 0.) 71 Fed. 382 ; In re Look Tin Sing (O. C.) 21 Fed. 903. See "Citigens," Dec. Dig. (Key No.) § 5; Cent. Dig. § 2. §§ 234r-239) CITIZENSHIP. 635 ents born abroad are also considered as within the privilege of citizen- ship, if the residence of their parents abroad was only temporary. An act of congress, passed before the fourteenth amendment, but prob- ably not repealed by it, provides that persons born out of the limits and jurisdiction of the United States, whose fathers are, at the time of such birth, citizens of the United States, shall be deemed and con- sidered citizens of the United States; provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States.^^ This statute is in affirmance of the common law. "By the common law, when a subject is traveling or sojourning abroad, either on the public business or on a lawful oc- casion of his own, with the express or implied license and sanction of the sovereign, and with the intention of returning, as he con- tinues under the protection of the sovereign power, so he retains the privileges and continues under the obligatioris of his allegiance, and his children, though born in a foreign country, are not born under foreign allegiance, and are an exception to the rule which makes the place of birth the test of citizenship." ^^ Women and Children. We have said that citizenship does not necessarily include the right of voting. This is apparent from the language of the fourteenth amendment, which does not declare that "all adult males" are citizens, but that "all persons" born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. It follows from this that females and minors are equally citizens of the United States, if they fulfill the conditions as to birth or naturali- zation, as are those invested with the suffrage.^' 11 Rev. St. U. S. § 1993 (U. S. Comp. St. 1901, p. 1268). But one who was ■born In Canada, of parents of African blood born in Virginia and held there as slaves until they emigrated to Canada, does not, by removing to the United States, become a citizen. The ease of such a person is not covered either by ihe fourteenth amendment or by the act of congress mentioned. Hedgman v. Board of Registration, 26 Mich. 51, 12 Am. Rep. 297. See ''Citizens," Deo. Dig. (Key No.) §§ 2, 9; Cent. Dig. §§ 9, U. 12 Ludlam v. Ludlam, 31 Barb. (N. Y.) 486. And see United States v. Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct. 456, 42 L. Ed. 890 ; State v. Jackson, 79 Tt. 504, 65 Atl. 657, 8 L. R. A. (N. S.) 1245. See "Citizens," Dec. Dig. (Key 1^0.) § 9; Cent. Dig. § 9. 13 Minor v. Happersett, 21 Wall. 162, 22 L. Ed. 627. See "Citizens," Dec. Dig. (Key No.) § 2; Cent. Dig. § Z. 636 POLITICAL AND PUBLIC EIGHTS. (Ch. 19 Corporations. Although a private corporation is regarded as a "person" for many legal purposes, yet as it can neither be born nor naturalized, it cannot be considered as a citizen of the United States, under the provisions of the amendment.'^* Indians. In regard to the Indians, it has been said: "Neither are the orig- inal inhabitants of the country citizens so long as they preserve their tribal relations and recognize the headship of their chiefs, notwith- standing that, as against the action of our own people, they are un- der the protection of the laws, and may be said to owe a qualified allegiance to the government. When living within territory over which the laws, either state or territorial, are extended, they are pro- tected by and at the same time held amenable to those laws in all their intercourse with the body politic and with the individuals com- posing it. But they are also, as a quasi foreign people, regarded as being under the direction and tutelage of the general government, and subjected to peculiar regulations as dependent communities. They are 'subject to the jurisdiction' of the United States only in a much qualified sense, and it would obviously be inconsistent with the semi- independent character of such a tribe, and with the obedience they are expected to render to their tribal head, that they should be vested with the complete rights, or, on the other hand, subjected to the full responsibilities, of American citizens." ^^ And it is held that an In- dian, born in the United States and a member of a tribe, cannot, by merely separating himself from his tribe and taking up his residence among white citizens, become a citizen and claim the right to vote. iiPaul v. Virginia, 8 Wall. 168, 19 L. Ed. 357; Insurance Co. v. New Or- leans, 1 Woods, 85, Fed. Cas. No. 7,052 ; Western Turf Ass'n v. Greenberg, 204 U. S. 359, 27 Sup. Ct. 384, 51 Lu Ed. 520 ; Board of Education v. Illinois, 203 U. S. 553, 27 Sup. Ct. 171, 51 L. Ed. 314 ; Orient Ins. Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. 281, 43 L. Ed. 552 ; .S]tna Ins. Co. v. Brlgham, 120 Ga. 925, 48 S. E. 348 ; Pittsburgh, C, C. & St. L. Ey. O*. v. Lighthelser, 168 Ind. 438, 78 N. E. 1033 ; Fire Department of City of New York v. Stanton, 28 App. Div. 334, 51 N. Y. Supp. 242 ; Debnam v. Southern Bell Telephone & Telegraph Co., 126 N. C. 831, 36 S. B. 269, 65 L. R. A- 915 ; Cook v. Rowland, 74 Vt. 393, 52 Atl. 973, 59 L. R. A. 338, 93 Am. St. Rep. 912; Hawley v. Kurd, 72 Vt. 122, 47 Atl. 401, 52 L. R. A. 195, 82 Am. St. Rep. 922 ; Cowardin v. Universal Life Ins. Co., 32 Grat (Va.) 445. See "CitKem," Deo. Dig. (Key No.) § 2; Cent. Dig. § 16. i» 2 Story, Const § 1933. §§ 234-239) CITIZENSHIP. 637 Said the court: "Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien though dependent power), although in a geographical sense 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 government, or the children, born within the United States, of ambassadors or other public ministers of foreign nations. Such Indians, then, not being citizens by birth, can only become citi- zens in the second way mentioned in the fourteenth amendment, by being 'naturalized in the United States,' by or under some treaty or statute." " Naturalisation. This is the act or process by which an alien, renouncing his allegi- ance to his former sovereign, is accepted as a citizen and invested with all the rights and privileges attaching to that status, the same as if he were a natural born subject of the government. The power to establish a uniform rule of naturalization is vested in congress by the constitution, and this power is exclusive of any like power in the states. This subject has been fully discussed in connection with the powers of congress. It remains to be here stated, as bearing specially on the question of citizenship, that the citizenship of a head of a family determines that of his wife and minor children; hence if a woman who is an alien marries a citizen of the United States, she at once takes his status and becomes an American citizen, without being otherwise naturalized ; ^^ and the infant children of an alien father, though born abroad, if dwelling within the United States at the time of his naturalization, become American citizens by virtue of such nat- uralization, though this is not true of a child who has then attained 16 Elk V. Wilkins, 112 U. S. 94, 5 Sup. Ot. 41, 28 L. Ed. 643; Jackson v. United States, 34 Ot. CI. 441. A citizen of tlie United States who becomes a member of an Indian tribe by adoption does not lose bis citizenship. French V. French (Tenn. Ch. App.) 52 S. W. 517. See "Citizens," Dec. Dig. (Key No.) I 2; Cent. Dig. § 15. n Hopkins v. Fachant, 130 Fed. 839, 65 C. 0. A. 1; U. S. v. Williams (D. C.) 173 Fed. 626 ; Dorsey v. Brigham, 177 III. 250, 52 N. B. 303, 42 L. E. A. 809, 69 Am. St. Kep. 228 ; People v. Newell, 1 How. Prac. (N. S. [N. Y.]) 8 ; Rev. St. U. S. § 1994 (U. S. CJomp. St. 1901, p. 1268). See "Citizens," Dec. Dig. (Key No.) i 7; Cent. Dig. § 6. 638 POLITICAL AND PUBLIC EIGHTS. (Ch. 19 his majority.^' The proceedings in a court of record under the nat- uralization laws are judicial and result in a judgment which is entitled to the same evidential force as other judgments, and which can be impeached only on like grounds.^' Bxpatriation. This is a correlative to naturalization, or rather, it is a prerequisite to it. The right of expatriation is the right of a man to change his country and allegiance at will. It is the right, on removing from one land to another, to sever his political connection with the former, and be exempt from personal or political duties toward it, and to acquire the rights and standing of a citizen in the latter. An act of congress declares that "expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness;" and "any declaration, instruction, opinion, order, or decision of any officer of the United States, which denies, restricts, impairs, or questions the right of expatriation, is inconsistent with the fundamental principles of the republic." " And the decisions of the courts are in accordance with this declaration.^^ DOUBLE CITIZENSHIP IN THE UNITED STATES. 240. We have, in our political system, a government of the United States and a government of each of the several states. Each of these governments is distinct from the others, and each has citizens of its oivn, who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citi- zen of a state. But his rights of citizenship under one of these governments vrill be different from those w^hich belong to him under the other. 18 United States v. Williams (O. C.) 132 Fed. 894; Dorsey v. Brigham, 177 111. 250, 52 N. E. 303, 42 L. E, A. 809, 69 Am. St. Rep. 228. See "Citizens," Dec. Dig. (Key No.) § 9; Cent. Dip. § 10. laPintsch Compressing Co. v. Bergin (C. 0.) 84 Fed. 140; People v. Qui- jada, 154 Oal. 243, 97 Pac. 689. See "Aliens," Dec. Dig. (Key So.) § 70; Cent. Dig. § 155; "Citizens," Dec. Dig. (Key No.) § 10; Cent. Dig. § n. 20 Rev. St. U. S. § 1999 (U. S. Oomp. St. 1901, p. 1269). 21 In re Look Tin Sing (C. C.) 21 Fed. 905 ; Jennes v. Landes (C. C.) 84 Fed. 73 ; State v. Jackson, 79 Vt. 504, 65 Atl. 657, 8 L. R. A. (N. S.) 1245. Wliere a woman -who is a citizen of the United States marries an alien, she does not lose her citizenship so long as she continues to reside in the United States; but If she removes with him to Ws own country, her political status follows his. Wallenburg v. Missouri Pac. Ry. Co. (0. C.) 159 Fed. 217; Moore v. § 240) DOUBLE CITIZENSHIP IN THE UNITED STATES. 639 "The distinction between citizenship of the United States and citi- zenship of a state is clearly recognized and established [by the four- teenth amendment] . Not only may a man be a citizen of the United States without being a citizen of a state, but an important element is necessary to convert the former into the latter. He must reside within a state to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union. It is quite clear, then, that there is a citizenship of the United States and a citizenship of a state, which are distinct from each other and which depend upon different characteristics or cir- cumstances in the individual." ^^ A person, therefore, may be .a citizen of the United States without being a citizen of any particular state. And this is the condition of citizens permanently resident in the District of Columbia and in the territories.^^ Since the power of naturalization is exclusively vested in congress, the states cannot con- vert aliens into citizens of the United States. Whether the state can clothe an alien with the privileges of its own citizenship, in ad- vance of his naturalization by federal law, is uncertain.^* But there is nothing to prevent the state from giving him the right of suffrage, the righfto inherit and transmit property, and all other rights gener- ally deemed to be appurtenant to citizenship, except the right to be subject to the federal jurisdiction and to claim the benefit of federal law as a citizen of the United States. On the other hand, the United States can naturalize a foreigner, but cannot make him a citizen of any particular state. That depends upon his own choice. He be- comes a citizen of that state in which he shall reside. But the state cannot withhold the privileges of its citizenship from any person born or naturalized in the United States and subject to the jurisdic- Ruckgaber, 114 Fed. 1020, 52 C. C. A. 587. See "Citizens," Dec. Dig. (Key No.) § 13; Cent. Dig. §§ 20-22. 2 2 United States v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588; Slaughter- house Cases, 16 Wall. 36, 21 L. Ed. 394 ; Gardlna v. Board of Registrars (Ala.) 48 South. 788 ; Cory v. Carter, 48 Ind. 327, 17 Am. Rep. 738. See "Citizens," Dec. Dig. (Key No.) § 11; Cent. Dig. § 18. 2 3 Prentiss v. Brennan, 2 Blatchf. 162, Fed. Cas. No. 11,385; Piequet v. Swan, 5 Mason, 35, Fed. Cas. No. 11,134. See "Citizens," Dec. Dig. (Key No.} § 11; Cent. Dig. § 18. 24 In McDonel v. State, 90 Ind. 320, it is held that one may be a citizen of a state and yet not a citizen of the United States. But on the other hand, nothing which a state can do will Invest a foreigner with the rights and privi- leges of a citizen. of the United States. Mayer v. United States, 38 Ct. CI. 553. See "Citizens," Dec. Dig. (Key No.) § 11; Cent. Dig. § 18. 640 POLITICAL AND PUBLIC EIGHTS. (Ch. 19 tion thereof who shall choose to dwell within its domain. The most that the state can require is a bona fide intention to become one of its residents. And perhaps it is within the competence of the state to fix a term of residence within its limits before the rights of citizen- ship shall attach. PRIVILEGES OF CITIZENS OF THE UNITED STATES. 241. The fourteenth amendment also declares that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. In this connection, it is important to observe that the privileges and immunities here protected are those of citizens of the United States (not of citizens of a state) and that they are such only as be- long to those citizens in virtue of their citizenship.^" Another part of the constitution guaranties to the citizens of each state the privileges and immunities of citizens in the several states. But the fourteenth amendment is not supplementary to that clause and has no relation to it. It deals with a different matter, 'viz., the rights of citizens of the United States as such. It would perhaps be too narrow a con- struction to say that these rights must all be political in their char- acter, or related to the status of citizenship. But it is clear that they must have some relation to the legitimate operations of the general government, to the purposes for which it was created, or to the powers which are committed to it.^' The right of marriage, the right of the descent of property, the right to the control of children, the right to sue for property and to have it protected, and, in general, the pro- tection of life, liberty, and the pursuit of happiness,^' are all founded 2B Waaieigli V. Newhall (C. C.) 136 Fed. 941 ; State v. Bates, 14 Utah, 293, 47 Pac. 78, 43 L. R. A. 33; State v. Holden, 14 Utah, 71, 46 Pac. 756, 37 L. E. A. 103. See "Constitutional Law," Deo. Dig. (Key No.) § 206; Cent. Dig. § 625. 28 Kirtland v. Hotehklss, 100 U. S. 491, 25 L. Ed. 558 ; Meehan v. Board of Excise Com'rs of Jersey Olty, 73 N. J. Law, 382, 64 Atl. 689. The adoption of the fourteenth amendment did not have the effect of making all the provi- sions contained in the fitst ten amendments operative in the state courts. Maxwell v. Dow, 176 U. S. 581, 20 Sup. Ot. 448, 494, 44 L. Ed. 597. Bee "Cotir stitutional Law," Deo. Dig. (Key No.) § 206; Cent. Dig. §§ 625-648. 27 Owen County Burley Tobacco Soc. v. Bramback, 128 Ky. 137, 107 S. W. 710, 32 Ky. Law Rep. 916 ; People v. Van Pelt, 130 Mich. 621, 90 N. W. 424. It is not a privilege of citizens of the United States to play baseball on Sun- § 241) tBIVlLEGES OF CITIZENS Or THE UNITED STATES. 641 in the relation between the state and its citizens, and are not rights which belong to the citizens of the United States as such. But the rights which they do possess in that character are also numerous and important. For example, in a case in which a state tax on interstate travel was held void, it was said to be the right of a citizen of the United States "to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it. to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are con- ducted, to the subtreasuries, land offices, and courts of justice in the several states.^* So it was said in another case: "Another privilege of a citizen of the United States is to demand the care and protection of the federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. The right to peaceably assemble and petition for a redress of griev- ances, the privilege of the writ of habeas corpus, are rights of the citizen guarantied by the federal constitution. The right to use the navigable waters of the United States however they may penetrate the territory of the several states, and all rights secured to our citi- zens by treaties with foreign nations, are dependent upon citizenship of the United States and not citizenship of a state. One of these privileges is conferred by the very article under consideration. It is, that a citizen of the United States can, of his own volition, become a citizen of any state, by a bona fide residence therein." ^* Without attempting a complete enumeration, we may add several to the cata- logue of rights herein given. Thus, it is undoubtedly a right of a citizen of the United States as such to share with others in the benefit of the postal system, to have access to the courts of the United States without let or hindrance by the states, to inspect the records of those courts, to take advantage of the laws opening the public lands to settlement or purchase, to take out patents or copyrights, to buy, sell, or devise United States securities, to take the benefit of national bankrupt laws, and all this without any abridgment, hindrance, or day, if the state chooses to forbid it. State v. Hogriever, 152 Ind. 652, 53 N. E. 921, 45 L. R. A. 504. See "Constitutional Law," Dec. Dig. (Key No.) § S08; Cent. Dig. §§ 6S5-6i8., 2 8 Crandall v. Nevada, 6 Wall. 35, 18 L. Ed. 745. See "Constitutional Law," Deo. Dig. (Key No.) §§ 83, Z06; Cent. Dig. §§ 150, 625-648. 2» Slaughterhouse Cases, 16 Wall. 36,, 21 L. Ed. 394. See "Constitutional Law," Deo. Dig. (Key No.) § S06; Cent. Dig. §§ 6S5-648. Bl.Const.L.(3d.Ed.)— 41 642 ^ POLITICAL AND PUBLIC RIGHTS. (Ch. 19 taxation by the states.^" But this part of the constitution does not abridge the rightof the states to regulate the pursuit of given avoca- tions, the holding of public office, or industrial combinations. These are not privileges of citizens of the United States, but rights or priv- ileges proceeding from, or governed by, the laws of the several states. Hence there is no constitutional objection on this ground to statutes of the several states which restrict or regulate the right to practise as an attorney at law,^^ or as a physician or surgeon,^^ or to engage in the manufacture or sale of intoxicating liquors,^^ or in other 30 Ttie exercise by a citizen of the United States of tlie right to make a homestead entry upon unoccupied public lands, conferred by act of congress, is the exercise of a right secured by the constitution and laws of the United States. U. S. v. Waddell, 112 U. S. 76, 5 Sup. Ct. 36, 28 L. Ed. 673. In the case of Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429, the fact is brought out that there are rights of citizens of the Union, as such, not specif- ically created by any clause of the CQnstitution, but derivable from the su- premacy of the federal government within its own sphere. Gray, J., observed: "Every right created by, arising under, or dependent upon the constitution of the United States may be protected and enforced by congress by such means and in such manner as congress, in the exercise of the correlative duty of pro- tection, or of the legislative powers conferred upon it by the constitution, may in Its discretion deem most eligible and best adapted to attain the object. * , * * In the case at bar, the right in question does not depend upon any of the amendments to the constitution, but arises out of the creation and es- tablishment, by the constitution itself, of a national government, paramount and supreme within its sphere of action. Any government which has power to indict, try, and punish for crime, and to arrest the accused and hold them in safekeeping until trial, must have the power and the duty to protect against unlawful interferences its prisoners so held, as well as its executive and judi- cial officers charged with keeping and trying them." See "Constitutional Law," Dec. Dig. (Key No.) § 206; Cent. Dig. §§ 6.?J-6-}S. 31 Bradwell v. Illinois, 16 Wall. 130, 21 L. Ed. 442. See "Constitutional Law." Dec. Dig. (Key No.) § 206; Gent. Dig. § G29. 32 Parks V. State, 150 Ind. 211, 61 X. E. 862, 39 L. R. A. 190; State Board of Health v. Roy, 22 R. I. 538, 48 Atl. 802; Prance v. State, 57 Ohio St. 1, 47 N. E. 1041. See "Constitutional Laic," Dec. Dig. (Key No.) § 206; Cent. Dig. § 629. 3 3 Durein v. State of Kansas, 208 U. S. 613, 28 Sup. Ct. 567, 52 L. Ed. 645 ; Bartemeyer v. Iowa, 18 Wall. 129, 21 L. Ed. 920; Jacobs Pharmacy Co. v. City of Atlanta (C. C.) 89 Fed. 244 ; Jordan v. Evansville, 163 Ind. 512, 72 N. E. 544, 67 L. R. A. 613 ; Meehan v. Board of Excise Com'rs of Jersey City, 73 N. J. Law, 382, 64 Atl. 689 ; Hoboken v. Goodman, 68 N. J. Law, 217, 51 Atl. 1092 ; State v. Richardson, 48 Or. 309, 85 Pac. 225, 8 L. R. A. (N. S.) 362 ; Danville v. Hatcher, 101 Va. 523, 44 S. E. 723. See "Constitutional Law," Dec. Dig. (Key No.) § S06; Cent. Dig. § 631. § 241) PRIVILEGES OF CITIZENS OF THE UNITED STATES. 643 forms of business or trades which are so far affected with a public interest as to be legitimate subjects for regulation under the police power ; '* nor to statutes which restrict the right to hold office by the establishment of a civil service,^ ^ or which give the preference in such matters to veterans of the Civil War; '° or which restrain or prevent the formation of trusts and monopolies,'^ or which limit to residents of the state the privilege of acting as an executor, administrator, or assignee for the benefit of creditors.'* And although, by other pro- visions of the constitution, the states are prevented from discriminat- ing unjustly against non-residents, this particular clause of the four- teenth amendment does not confer upon non-residents (being citizens of the United States) any other or greater privileges or immunities than those enjoyed by citizens of the state.'" Nor has it any relation to proceedings in the state courts, whether civil or criminal, so that such matters as the right to trial by jury and the privilege against self-crimination are left to be regulated by the several states.*" 8* St. George v. Hardie, 147 N. C. 88, 60 S. E. 920 (licensing of pilots) ; Commonwealth v. Keary, 14 Pa. Super. Ct 583 (ticket scalping). But com- pare State v. Smith, 42 Wash. 237, 84 Pac. 851, 5 L. R. A. (N. S.) 674, 14 Am. St. Rep. 114, as to law for licensing of plumbers. See "Constitutional Law," Dec. Dig. (Key No.) § 206; Cent. Dig. §§ 629, 632. 35 People V. Loefiier, 175 111. 585, 51 N. E. 785. See "Constitutional Law," Dec. Dig. (Key No.) § 206; Cent. Dig. § 625. 38 Shaw y. City Council of Marshalltown, 131 Iowa, 128, 104 N. W. 1121, 10 L. R. A. (N. S.) 825 ; In re Wortman (Sup.) 2 N. Y. Supp. 324. See "Consti- tutional Law," Dec. Dig. (Key No.) § 206; Cent. Dig. § 6a6. 3 7 Attorney General v. A. Booth & Co., 143 Mich. 89, 106 N. W. 868. See United States v. Moore (0. C.) 129 Fed. 630, as to labor organizations. See "Constitutional Law," Dec. Dig. (Key No.) § 206; Cent. Dig. § 625. 3 8 In re McWhirter's Estate, 235 111. 607, 85 N. E. 918; Duryea v. Muse, 117 Wis. 399, 94 N. W. 365. See "Constitutional Law," Dec. Dig. (Key No.) § 206; Cent. Dig. § 635. 3 9 Brown v. Birmingham, 140 Ala. 590, 37 South. 173; Ballard v. Hunter, 204 U. S. 241, 27 Sup. Ct. 261, 51 h. Ed. 461. But a statute requiring an annual license fee for canvassing and selling by sample certain articles pro- duced out of the state, not Injurious to health or morals, while no fee is re- quired in the case of other articles, is repugnant to this clause of the con- stitution. State V. Bayer, 34 Utah, 257, 97 Pac. 129, 19 L. R. A. (N. S.) 297. As to restriction or regulation of foreign corporations, see Board of Educa- tion V. Illinois, 203 U. S. 553, 27 Sup. Ct. 171, 51 L. Ed. 314; Loverin & Browne Co. v. Travis, 135 Wis. 322, 115 N. W. 829. See "Constitutional Law," Dec. Dig. (Key No.) § 206; Cent. Dig. § 625. 40 Twining v. State of New Jersey, 211 U. S. 78, 29 Sup. Ct. 14, 53 L. Ed. 97; Maxwell v. Dow, 176 U. S. 581, 20 Sup. Ct. 448, 44 L. Ed. 597; People v. 644 POLITICAL AND PUBLIC EIGHTS. (Ch. 19 THI! BIGHT OF SUFFRAGE. 242. The right of suffrage is a political right, and is regulated by each govenuuent in. accordance irith its own Tiews of policy and expediency. 243. In this country the right to vote is not conferred or guarantied by the federal constitution, but is left to be fixed and regulated by the several states, subject, however, to the limitations con- tained in the fourteenth and fifteenth amendments, 244. Where the constitution of the state defines the qualifications of those who shall be vested with the elective franchise, such qualifications cannot be altered by the legislature. But this ' does not deprive the legislature of the power to regulate the exercise of the right or the manner of conducting elections. "Suffrage" means a vote, the act of voting, or the right or privilege of casting a vote at public elections. The term is not usually applied to the prerogative of voting at elections held by corporations or other private associations, but is restricted to such elections as are held un- der authority of government, general or local. The right of suffrage is also popularly called "the elective franchise." It has sometimes been contended that the right to take part in the administration of government or in the choice of those who are to make and execute the laws, by means of the ballot, is a natural right, standing in the same category with the rights of life, liberty, and property. It is perhaps true that those who are affected by the opera- tions of government, and who are capable of exercising an independ- ent and intelligent will in the choice of means or agents for carrying on its functions, should be admitted, without distinction as to sex, age, or race, to the privilege of expressing that will at the polls, and that this universality of suffrage is implied in the theory of a repre- sentative government. But it remains not less true that the right of suffrage is not a natural right, but a political right ; not a personal right, but a civil right. It does not owe its existence to the mere fact of the personality of the individual, but to the constitution of civil government. Nor is it even a necessary attribute of citizenship. It is conferred, limited, or withheld at the pleasure of the people Botkln, 9 Cal. App. 244, 98 Pac. 861 ; Walker v. Sauvinet, 92 U. S. 90, 23 L. Ed. 678 ; Iowa Cent. R. Go. v. Iowa, 160 U. S. 389, 16 Sup. Ct. 344, 40 L. Ed. 467. See "Constitutional Law," Deo. Dig. (Key No.) § 206; Cent. Dig. §§ 646-648. §§ 242-244) THE EIGHT OF SUFFRAGE. 645 acting in their sovereign capacity. Each state may define it in its own constitution or empower its legislature to do so. And the right of suffrage once granted may be taken away by the exercise of sover- eign power, or forfeited for crime, under the laws of the state; and if taken away by the same power which granted it, by the alteration of the constitution, no vested right is violated.*^ Federal Constitution does not Confer Right of Suffrage. As a general rule, and except in some few details, the constitution of the United States does not regulate the right of suffrage, even as regards the choice of its own officers. The matter is left to the states. They grant or withhold the right of voting and determine the quali- fications of those who shall possess it. In the case of Minor v. Hap- persett,*^ the supreme court of the United States declared that they were "unanimously of the opinion that the constitution of the United States does not confer the right of suffrage upon any one." But in a later decision the court explained that it did not intend thereby to say that when the class or the person entitled to vote at federal elec- tions was ascertained by state laws, his right to vote for a member of congress was not fundamentally based upon the constitution, which created the office of member of congress, and declared that it should be elective, and pointed to the means of ascertaining who should be the electors. In the earlier case, the court was merely combating- the argument that the right of suffrage was conferred by the constitution upon all citizens, and therefore upon women as well as men.*^ Qualifications Determined by the States. The federal constitution, in providing that "the house of representa- tives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch 41 Ridley v. Sherbrook, 3 Cold. (Tenn.) 569 ; Anderson v. Baker, 23 MiJ. 531 ; People v. Barber, 48 Hun, 198 ; Boyd v. Mills, 53 Kan. 594, 37 Pac. 16, 25 L. B. A. 486, 42 Am. St. Rep. 306 ; Russell v. State, 171 Ind. 623, 87 N. E. 13; State v. Goldthait (Ind.) 87 N. E. 133. See "Elections," Dec. Dig. (Key No.) §§ 1-18; Cent. Dig. §§ 1-13. 4 2 21 Wall. 162, 22 L. Ed. 627. And see U. S. v. Anthony, 11 Blatchf. 200, Fed. Cas. No. 14,459; Van Valkenburg v. Bi'own, 43 Cal. 43, 13 Am. Rep. 136. See "Elections," Dec. Dig. (Key No.) § 11; Cent. Dig. § 8. 43 Ex parte Yarbrough, 110 U. S. 651, 4 Sup. Ct. 152, 28 L. Ed. 274. And see Gfougar v. Timberlake, 148 Ind. 38, 46 N. B. 339, 37 L. R. A. 644, 62 Am. St Rep. 487. See "Elections," Dec. Dig. (Key No.) § 11; Cent. Dig. § 8. 646 POLITICAL AND PUBLIC RIGHTS. (Ch. 19 of the state legislature," simply adopts, with reference to congressional elections, the qualifications which each state may prescribe for its own electors. The state, if it admits given persons to vote for the members of its own lower house, cannot exclude the same persons from voting for members of congress. But, subject only to the limi- tations of the fourteenth and fifteenth amendments, to be hereafter noticed, it rests entirely in the discretion of the state to prescribe the qualifications of such persons. The result is that there is a singu- lar and anomalous lack of uniformity in the qualifications of those persons who elect the federal house of representatives, and, indirectly, the senate and the President. In several of the states, unnaturalized foreigners, after they have resided a certain time within the state, are given the right to vote. In some states, the privilege of the bal- lot is extended to women. In some, there is a property qualification. In others, there is an educational qualification. But the constitution has not given to the national government the power to establish a uniform rule as to the qualifications of its own electors. Congress may indeed make regulations as to the time, place, or manner of holding elections for senators or representatives, or alter those di- rected to be made by the states. (Const, art. 1, § 4.) But this does not touch the qualifications of the voters. One more clause of the federal constitution requires notice in this connection. It is the second section of the fourteenth amendment, which provides that when the right to vote is denied by any state to any of its male inhabitants who are twenty-one years of age and citi- zens of the United States, or in any way abridged, except for par- ticipation in rebellion or other crime, then the basis of representation therein shall be reduced in the proportion which the. number of such male citizens shall bear to the whole number of male citizens twenty- one years of age in such state. The purpose of this clause was of course to induce the states to extend the elective franchise to the colored race. But this was made obligatory by the fifteenth amend- ment. Still, the language of the clause under consideration is gen- eral. And it is possible to conceive of cases where, without any ref- erence to race or color, the states might so restrict the right of suf- frage as to render themselves liable to have their representation re- duced. The right to fix the qualifications of its electors being thus vested in the state, subject to the few limitations above considered, it may proceed to determine what persons shall be excluded from this privi- §§ 242-244) THE EIGHT OF SUFFRAGE. 647 lege, according to its own views of justice and policy. For the most part, aliens and non-residents are excluded. But, as already observed, the state may, if it chooses, confer the right to vote upon resident un- naturalized foreigners. And since suffrage is not a necessary attri- bute of federal citizenship, it would be competent for the state to withhold the elective franchise from naturalized persons until they have resided a certain time within its limits.** Naturalization makes a man a citizen both of the United States and of the state where he resides. But many other persons who are citizens have not the right to vote. "Each state has the undoubted right to prescribe the quali- fications of its own voters. And it is equally clear that the act of nat- uralization does not confer on the individual naturalized the right to exercise the elective franchise. While other civil rights are conferred by it, that of voting at elections for officers of the state is not one, unless the party possess the other requisite qualifications, defined by the state law, where citizenship is one of the necessary requisites to its exercise." *° In most of the states, women are not invested with this privilege, and in all, minors are excluded. Persons mentally incapable of exercising a choice are generally excluded. And it is entirely competent for the state to make the ability to read and write a condition for registration for election purposes.*^ In many states, also, it is_ provided that conviction of an infamous crime shall deprive the offender of the right of suffrage. But inspectors of elections have no right to exclude the vote of an individual on the ground that the person offering it is a criminal, where there is no evidence produced before them of the conviction of such person for such crime and his consequent forfeiture of the rights of citizenship.*^ Fifteenth Amendment. The fifteenth amendment to the constitution of the United States provides that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on ac- ii Pope V. Williams, 98 Md. 59, 56 Atl. 543, 66 L. E. A. 398, 1C3 Am. St. Rep. 379 (affirmed, 193 U. S. 621, 24 Sup. Ct. 573, 48 L. Ed. 817) ; State v. Weber, 96 Minn. 422, 105 N. W. 490, 113 Am. St. Rep. 630. See "Elections," Dec. Dig. (Key No.) §§ 1, 18, 19, 95; Cent. Dig. §§ 1, 13, 11 95, 96. 4 5 Spraggins-v. Houghton, 3 111. 377. See "Elections," Dec. Dig. (Key No.) § 18; Cent. Dig. § IS. 4 8 stone V. Smith, 159 Mass. 413, 34 N. E. 521. See "Elections," Dec. Dig. (Key No.) §§ i-iS; Cent. Dig. §§ 1-lS. 47 Gotcheus y. Matheson, 58 Barb. (N. X.) 152. See "Elections," Deo. Dig. (Key No.) §§ 89, 90; Cent. Dig. §§ 86, S7, 648 POLITICAL AND PUBLIC RIGHTS. (Ch. 19 count of race, color, or previous condition of servitude." Of this provision it has been said: "The fifteenth amendment does not confer the right of suffrage upon any one. It prevents the states or the United States, however, from giving preference in this particu- lar to one citizen of the United States over another on account of race, color, or previous condition of servitude. Before its adoption, this could be done. It .was as much within the power of a state to exclude citizens of the United States from voting on account of race, etc., as.it was on account of age, property, or education. Now it is not. If citizens of one race, having certain qualifications, are permitted by law to vote, those of another, having the same quali- fications, must be. Previous to this amendment there was no consti- tutional guaranty against this discrimination; now there is. It fol- lows that the amendment has invested the citizens of the United States with a new constitutional right which is within the protecting power of congress. This right is exemption from discrimination in the exer- cise of the elective franchise on account of race, color, or previous condition of servitude." ** But it will be observed that it remains within the power of the state to prescribe such qualifications for the suffrage as it may please, provided that they apply equally to per- sons of all races and colors.^" Thus the amendment does not give to negroes the right to vote independently of such restrictions and regu- lations (for example, as to age and residence) as are imposed by the state constitution on white citizens. °° But the amendment, being a part of the supreme law of the land, had the effect to annul those provisions of the constitutions of several of the states which restricted the exercise of the right of suffrage to white persons."^ Qualifications Fixed by State Constitution. Where the constitution of a state (as is usually the case) fixes the qualifications of those who are to enjoy the right of suffrage, it is 48 u. S. v. Reese, 92 U. S. 214, 23 L. Ed. 563 ; U. S. v. Harris, 106 U. S. 629, 637, 1 Sup. Ct. 601, 27 L. Ed. 290 ; U. S. v. Crosby, 1 Hughes, 448, Fed. Cas. No. 14,893. See Willis v. Kalmbach, 109 Va. 475, 64 S. B. 342, 21 L. R. A. (N. S.) 1009. See "Election/!," Deo. Dig. (Key No.) §§ 60, 61; Cent. Dig. %% 56, 57. *8 Narr, Suffrage & Elections, 1 ; Morse, Citizenship, § 143. soAnthony v. Halderman, 7 Kan. 50. See "Elections," Dec. Dig. (Key No.) § XI; Cent. Dig. § S. 51 Wood V. Fitzgerald, 3 Or. 568. See "Constitutional Law,'* Dec. Dig. (Key No.) § 24; Cent. Dig. § 2^; "Elections," Dec. Dig. (Key No.) § 11; Cent. Dig. §S. §§ 242-244) THE EIGHT OF SUFFRAGE. 649 the intention that the standards so set up shall remain unalterable until the popular will changes to such an extent as to involve an alteration of the organic law. In this case, it is not within the consti- tutional power of the state legislature to alter, modify, or dispense with the qualifications determined by the constitution. It is not lawful to enact statutes which would either exclude persons admitted by the constitution, or admit persons whom the constitution would shut out. No new or different qualifications can be prescribed, nor can any of those named by the constitution be abrogated."" Regulation of Elections. When the constitution of a state prescribes certain qualifications for voters, this contemplates and intends that the legislature shall provide some mode of ascertaining and determining the existence of those qualifications. Consequently a law requiring the registration of voters is not invalid, unless it puts such unreasonable restrictions upon the right of suffrage as operate actually to exclude from its exercise persons or classes of persons entitled thereto."* So also the legislature may make rules relating to the method of voting, the giv- ing of notice of elections, the creation and functions of election offi- cers, the sufficiency of ballots, the powers and duties of canvassing boards, and to punish fraud, violence, intimidation, bribery, and sim- ilar offenses."* The statutes enacting what is commonly called the "Australian ballot law" or system of secret voting, have been gener- ally sustained as constitutional in all their leading particulars."" And when the constitution provides that only ballots delivered to voters within the polling place by the proper official shall be counted, this em- powers the legislature to provide that no ballot shall be counted unless B2 Chase v. Miller, 41 Pa. 403; McCafferty v. Guyer, 59 Pa. 109; State v. Adams, 2 Stew. (Ala.) 231, 239; State v. Tuttle, 53 Wis. 45, 9 N. W. 791; Bourland v. Hildreth, 26 Cal. 1«1. See Coggeshall v. City of Des Moines, 138 Iowa, 730, 117 N. W. 309, 128 Am. St. Rep. 221. See "Elections;' Dec. Dig. (Key No.) § 60; Cent. Dig. § 56. S3 Mills V. Green (C. C.) 67 Fed. 818; Mayor, etc., of City of Madison v. Wade, 88 Ga. 699, 16 S. E. 21 ; People v. Hoffman, 116 111. 587, 5 N. E. 596, 56 Am. Rep. 793 ; Gardina v. Board of Registrars (Ala.) 48 South. 788. See "Elections," Dec. Dig. (Key No.) §§ 19, 95, 96; Cent. Dig. §§ U, 95-97. 64 Pearson v. Board of Sup'rs of Brunswick County, 91 Va. 322, 21 S. E. 483. See "Elections," Dec. Dig. (Key No.) § 198; Cent. Dig. § 110. B6 See De Walt v. Bartley, 146 Pa. 529, 24 Atl. 185, 15 L. R. A. 771, 28 Am. St. Rep. 814 ; Rogers v. Jacob, 88 Ky. 502, 11 S. W. 513 ; Common Coun- cil of City of Detroit v. Rush, 82 Mich. 532, 46 N. W. 951, 10 L. R. A. 171 ; C50 POLITICAL AND PUBLIC EIGHTS. (Ch. 19 indorsed "official ballot," and also with the name or initials of the judge of election." It is also held that there is no constitutional ob- jection to a law regulating the machinery of a political party in mak- ing nominations of candidates for public office." The federal constitution provides that "the times, places, and man- ner of holding elections for senators and representatives shall be pre- scribed in each state by the legislature thereof, but the congress may at any time make or alter such regulations, except as to the place of choosing senators." It is held that this section gives congress a supervising power over the subject, and it may either make new reg- ulations, or add to or modify those made by the state law; and any regulations made by it which are inconsistent with those of the state will necessarily supersede the state regulations.'^ While this provi- sion adopts the state qualification as the federal qualification for the voter, his right to vote is based upon the constitution, and not upon the state law; and congress has the constitutional power to pass laws for the free, pure, and safe exercise of this righf FREEDOM OF SPEECH AND OF THE PRESS. 245. Tlie first amendment to the constitution of the United States pTotrides that congress shall make no law ahridging the free- dom of speech or of the press; and similar guaranties of liber- ty of speech and publication have been incorporated in the con- stitiitions of the several states. Meaning of Terms. In respect to the privileges secured by this guaranty, and with re- gard to responsibility for its abuse, there is no difference between Cook V. State, 90 Tenn. 407, 16 S. W. 471, 13 L. R. A. 133 ; State v. Taylor, 220 Mo. 618, 119 S. W. 373. See "Elections," Dec. Dip. (Key No.) § 19S; Cent. Dig. § 110. 50 Slaymaker v. Phillips, 5 Wyo. 453, 42 Pac. 1049, 47 L. R. A. 812. See '•Elections," Dec. Dig. (Key No.) § 177; Cent. Dig. § 1J,9. 5T In re House Bill No. 203, 9 Colo. 631, 21 Pac. 474 ; State v. Slicliel, 121 La. 874, 46 South. 430; Kenneweg v. Allegany County Com'rs, 102 JId. 119, 02 Atl. 249; Ladd v. Holmes, 40 Or. 167, 06 Pac. 714, 91 Am. St. Rep. 457. r.ut see People v. Board of Election Com'rs of City of Chicago, 221 111. 9, 77 N. E, 321. See "Elections," Dec. Dig. (Key No.) § 21; Cent. Dig. § 15. 5 8 Ex parte Siebold, 100 U. S. 371, 25 U Ed. 717; Ex parte Clarke, 100 n. S. 399, 25 L. Ed. 715. See "Elections," Dec. Dig. (Key No.) § 24; Cent. Dig. § 16. 5 9 Ex parte Tarbrough, 110 U. S. 651, 4 Sup. Ct. 152, 28 L. Ed. 274. See "Elections," Dec. Dig. (Key No.) § //.; Cent. Dig. § 3. § 245) FKEEDOM OF SPEECH AND OF THE PRESS. 631 "speech" and "the press." It is a mistake to suppose that there is a liberty of speech and a hberty of the press which are in any way dif- ferent or distinct. The constitutional provision is designed to insure freedom for the expression of opinion; and it makes no difference whatever whether the opinion be expressed orally or in print. No Peculiar Privilege of Newspapers. It has often been claimed that the publishers of newspapers, in view of the peculiar nature of their business of gathering and dis- seminating news, should have a more liberal exemption from liability to the law of libel than persons engaged in other occupations. But this claim has never been conceded by the courts. "The publisher of a newspaper," it is said, "possesses no immunity from liability in pubhshing a libel, other or different than any other person. The law makes no distinction between the newspaper publisher and any private person who may publish an article in a newspaper or other printed form; and if either abuses the right to publish his sentiments on any subject and upon any occasion, he must defend himself upon the same legal ground." ^° No New Right Created, i It is to be noticed that the constitutional guaranty here considered does not create any new right not previously understood to belong to the people. The language of the federal constitution, in declaring that congress shall make no law "abridging" the freedom of speech and of the press, implies that such freedom already existed, and only intends that it shall not be impaired by any federal legislation. The same construction is also to be put upon the similar provisions in the state constitutions. It follows that, in determining the nature of this freedom and its limitations, we are to have recourse to the law as it existed at the time of the adoption of the constitutions, and that 60 Bronson v. Bruce, 59 Mich. 467, 26 N. W. 671, 60 Am. Rep. 307 ; Sweeney V. Baker, 13 W. Va. 158, 31 Am. Hep. 757; King v. Root, 4 AYend. (N. Y.) 113, 21 Am. Dec. 102 ; Riley v. Lee, SS Ky. 603, 11 S. W. 713, 21 Am. St. Rep. 358. TJie constitutional liberty of the press, when applied to newspapers, consists of the right to publish freely whatever one pleases, and to be pro- tec-ted against any responsibility therefor, except so far as the publication is blasphemous, obscene, seditious, or scandalous. It is the right to speak the truth, but does not include the right to scandalize courts or to libel pri- vate citizens or public officers. State v. Shepherd, 177 Mo. 205, 76 S. W. 79, 99 Am. St. Rep. 624; Levert v. Daily States Pub. Co., 123 La. 594, 49 South. 206. See "Constitutional Laic," Dec. Dig. (Key No.) § 90; Cent. Dig. § 172; Words and Phrases, vol. 5, pp. 4131-41S3. 652 POLITICAL AND PUBLIC EIGHTS. (Ch. 1& contemporary history may be consulted in order to ascertain the meaning of the language employed. ' Meaning of the Guaranty. "It is plain," says Story, "that the language of this amendment im- ports no more than that every man shall hav^ a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always that he does not injure any other person in his rights, person, property, or reputation, and so always that he does not thereby disturb the public peace, or attempt to subvert the government." "^ According to the supreme court of Ohio, "the lib- erty of the press, properly understood, is not inconsistent with the protection due to private character. It has been well defined as consisting in the right to publish, with impunity, the truth, with good motives and for justifiable ends, whether it respects government, magistracy, or individuals." °^ As respects criticisms upon public officials or the government of the state or country, however, it is now thoroughly understood that freedom of the press includes not only exemption from previous censorship, but also immunity from punish- ment or sequestration after the publication, provided that the com- ments made keep within the limits of truth and decency, and are not treasonable. The importance of this guaranty as a protection against tyrannous oppression, and as a mainstay of popular government, can- not be exaggerated. Says the same learned commentator: "A little attention to the history of other countries in other ages will teach us the vast importance of this right. It is notorious that even to this day in some foreign countries it is a crime to speak on any subject, religious, philosophical, or political, what is contrary to the received opinions of the government or the institutions of the country, how- ever laudable may be the design or however virtuous may be the motive. Even to animadvert upon the conduct of public men, of rulers, or representatives, in terms of the strictest truth and courtesy, 81 2 Story, Const. § 1880. A city ordinance providing tliat no person shall make any public address in any of the public grounds of the city, except in accordance with a permit from the mayor, is a proper police regulation and not unconstitutional. Davis v. Massachusetts, 167 U. S. 43, 17 Sup. Ct. 731, 42 L. Ed. 71. See "Constitutional Law," Dec. Dig. (Key No.) § 90; Cent, Dig. § nS; "Municipal Corporations," Dec. Dig. (Key No.) § 721; Cent. Dig, §§ 15Jf2-15U- 82 Cincinnati Gazette Go. v. Tlmberlake, 10 Ohio St. 54S, 78 Am. Dec. 285. See "Constitutional Law," Dec. Dig. (Key No.) § 90; Cent. Dig. § i72; "Lihet and Slander," Dec. Dig. (Key No.) § ^2; Cent. Dig. § 127. § 245) FREEDOM OP SPEECH AND OF THE PRESS. 653 has been and is deemed a scandal upon the supposed sanctity of their stations and characters, subjecting the party to grievous punishment. In some countries no works can be printed at all, whether of science or literature or philosophy, without the previous approbation of the government." *' Limitation by Law of Libel and Police Regulations. Freedom of speech and of the press does not mean unrestrained license. It cannot for a moment be supposed that this guaranty gives to every man the right to speak or print whatever he may choose, no matter how false, malicious, or injurious, without any responsibility for the damage he may cause. The guaranty does not do away with the law of liability for defamation of character. On the contrary, that law is not only consistent with liberty of speech and of the press, but is also one of the safeguards of those who may use, but do not abuse, this liberty. By the common law, and by statute law in the states, one who publishes libelous attacks upon another, with malicious intent to do him injury, is amenable to the criminal law; and there is also a liability in damages to the party injured."* Exceptions to this rule are found in the case of what are called "privileged com- munications." These will be noticed later. The liberty of the press is also limited, but not abridged, by laws passed in the exercise of the police power, for the protection of the moral health of the community."" At common law, blasphemous pub- 83 2 Story, Ck)nst. § 1881. Under this constitutional provision, the legisla- ture has no irower to pass an act "to prohibit the active participation in poli- tics of certain officers of the state government." Louthan v. Commonv^ealth, 79 Va. 196, 52 Am. Rep. 626. See "Constitutional Law," Dec. Dig. (Key No.) § 90; Cent. Dig. f 173. 84 The legislature has no power to authorize the publisher of a newspaper or any other citizen to injure his neighbor's reputation without compensation. Neafie v. Hoboken Printing & Publishing Co., 75 N. J. Law, 564, 68 Atl. 146. The right to publish a man's picture, without his consent, as part of an ad- vertisement, cannot be claimed as an exercise of the liberty of the press. Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S. E. 68, 69 L. E. A. 101, 106 Am. St. Eep. 104. As to the use of the press for boycotting, black- listing, forcing payment of bad debts, and similar purposes, see State v. Mc- Cabe, 135 Mo. 450, 37 S. W. 123, 34 L. E. A. 127, 58 Am. St. Rep. 589 ; Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133, 67 S. W. 391, 56 L. E. A. 951, 90 Am. St. Eep. 440. See "Constitutional Law," Deo. Dig. (Key No.) § 90; Cent. Dig. § 172. 66 See State v. Pioneer Press Co., 100 Minn. 173, 110 N. W. 867, 9 L. R. A. in 1764, and of the printers and pubHshers of the "Letters of Junius," a few years later. Beside the main question involved in cases of this kind, as to the natural right of free thought and speech, great popular resentment was incurred by the officers and judges of the crown for the manner in which such trials were conducted. Not only were they prosecuted with the utmost rigor, and followed by the most cruel punishments, but by means of ex officio informations filed by the attorney general the prisoner was deprived of his right to the intervention of a grand jury, and by the rulings of Lord Mansfield (that the jury were to pass upon the question .of pub- lication alone, leaving the criminality of the alleged libel to be decided by the court) the defendant was practically debarred from the hope of an acquittal by the firmness and courage of his peers. Moreover, general warrants were issued, authorizing officers to search private houses and papers for the evidences of guilt under these laws. But the strength of public opinion was not without its effect. Fox's Libel Act reversed the rule laid down by Lord Mansfield, and made the jury judges of the law in libel cases. General warrants were declared illegal. And although the attorney general's information still supplied the place of an indictment, there ensued a brief period when prose- cutions of this sort were more rarely brought, and, when pressed, more frequently resulted in acquittal, as juries gathered more cour- age. But during the period of the French Revolution, the fears of the government being much excited by the spread of democratic opin- ions and the circulation of Jacobin literature and tractates favorable to the right of -revolution, the law against seditious libels was again put into active and unrelenting operation both in England and Scot- land. Until the closing years of the century, persecution of the press was rife, and although it is true that many pestilent and ir- responsible agitators were justly punished for abuses of the liberty of speech, yet it is equally true that there were numerous examples of tyrannical sentences imposed upon the leaders of public opinion. During the next generation, prosecutions for libels upon the govern- 70 Wilkes' Case, 19 How. St. Tr. 1075. § 246) FREEDOM OP SPEECH AND OF THE PRESS. 657 ment were of less frequent occurrence ; but they continued to be used as an occasional weapon in the hands of the ministry in power until about 1830, by which time, it is said, the temper of the people was such that they would no longer bear with complacency a harsh execu- tion of the libel laws. "Since that time, the utmost latitude of criti- cism and invective has been permitted to the press in discussing public men and measures. The law has rarely been appealed to, even for the exposure of malignity and falsehood. Prosecutions for libel, like the censorship, have fallen out of our constitutional system. When the press errs, it is by the press itself that its errors are left to be corrected." '^ Press Lazus of Continental Europe. In most of the countries on the continent of Europe, the press is subjected, more or less fully, to the supervision of the government, ■ and its freedom of expression is restricted by severe laws. In Russia, there existed until recently an official censorship, and no books or papers were allowed to be printed, or sold upon their importation from abroad, until they had been approved by the imperial censors. In Germany and Italy, while there is no previous censorship, news- papers, and even private writers, are required to observe the utmost circumspection in their comments upon public affairs. Criticisms of the rulers, in either their public or private capacity, may be construed as "lese majeste," and punished by fine or imprisonment. Animad- versions upon the conduct of the government, or upon its policy, plans, or management of the national affairs, if displeasing to those in power, may be followed by the sequestration of the offending jour- nal and fines imposed upon its publishers. Criticism of Government in America. In our own country, the freedom of the press, in its relations to the government, is absolute. There are no laws to restrain the widest and fullest discussion of the affairs of the public and the most ardent and impassioned criticism of governmental policy and acts. Even opinions hostile to our system of government and our institutions are allowed perfectly free expression. Even the anarchist is not punished for his incendiary utterances, nor subjected to any restraint until he commits a breach of the peace. But publications relating to con- spiracies to subvert the government, or tending to incite the people 712 May, Const. Hist. p. 213. The reader will find an excellent histarieal discussion of this subject in the volume referred to, on pages 102-213. Bl.Const.L.(3d.Ed.)— 42 658 POLITICAL AND PUBLIC EIGHTS. (Ch. 19 to treason or rebellion, would not be within the reason which protects the freedom of the press.' ^ The only known example in America of an attempt to restrain seditious publications was the Sedition Law of 1798.' This act of congress provided for the punishment of all unlawful combinations and conspiracies to oppose the measures of the government, or to impede the operation of the laws, or to intim- idate and prevent any officer of the United States from. undertaking or executing his duty. It also provided for a public presentation and punishment, by fine and imprisonment, of all persons who should write, print, utter, or publish any false, ' scandalous, and malicious writing or writings against the government of the United States, or either house of congress, or the President, with an intent to defame them or bring them into contempt or disrepute, or to excite against them the hatred of the good people of the United States, or to excite the people to oppose any law or act of the President in pursuance- of law or his constitutional powers, or to resist or oppose or defeat any law, or to aid, encourage, or abet any hostile designs of any for- eign nation against the United States. But this act was one of the principal causes of the downfall of the party which enacted it, was always regarded as foreign to the spirit of our institutions, and was consigned to oblivion, after a brief career, without regret. SAME— CENSOKSHIF OF THE PRESS. 247. The constitutional guaranty of freedom of speech and of the press forhids any censorship of the press, or any requirement of official approval or license as a condition precedent to pub- lication. In England, a decree of the court of star chamber limited the num- ber of printers and of presses, and prohibited new publications un- less previously approved by proper licensers. After the fall of this jurisdiction, the parliament assumed the same power during the pe- riod of the Commonwealth, and after the restoration of Charles II. a statute on the same subject was passed founded principally upon ?2 See People v. Most, 171 N. Y. 423, 64 N. B. 175, 58 L. R. A. 509, holding that the publisher of an article instigating revolution and murder, and sug- gesting the persons to be assassinated through the positions they occupy, and denouncing those who spare the ministers of public justice as guilty of a crime, is not protected by the constitutional guaranty of freedom of the press. Se& "Constitutional Law," Dec. Dig. (Key No.) § 90; Cent. Dig. § 172. §§ 248-252) FREEDOM OF SPEECH AND OF THE PRESS. 659 the star chamber decree. This act was continued for some years after the Revolution of 1688. Many attempts were made by the gov- ernment to keep it in force, but it was strongly resisted by parlia- ment, and it expired in 1694, and has never since been revived. "To this very hour," says Story, "the liberty of the press in England stands upon this negative foundation. The power to restrain it is dormant, not dead. It has never constituted an article of any of her numerous bills of rights; and that of the Revolution of 1688, after securing other civil and political privileges, left this without notice, as unworthy of care or fit for restraint." '=■ As an example of a spe- cies of restraint of the press which still exists in England, though perhaps somewhat in the nature of a police regulation, we may men- tion an act of parliament passed in 1843, which provides that all new plays must be submitted to the lord chamberlain for his exam- ination and approval; and when he shall be of the opinion that it is fitting for the preservation of good manners, decorum, or of the pub- lic peace so to do, he may forbid the acting or representation of any such play or part thereof anywhere in Great Britain or in such the- aters as he may specify, and either absolutely or for such time as he shall see fit.''* In the United States, no censorship of the press has ever been attempted, or would for a moment be tolerated. It is clearly and indubitably prohibited by the constitutional provisions under consideration.'"' SAME— FBIVIIiEGED COMMUNICATIONS. 248. In tbe lavr of libel and slander, "privilege" means the exemption of the person uttering or publishing the matter complained of from responsibility, civil or crii|iinal, although the -words may have caused damage and may be in fact false. Privilege is of tiro kinds: (a) Absolute. (b) Conditional. T3 2 Story, Const. § 1882. T4 stat. 6 & 7 Vict. c. 68. 75 An ordinance imposing a license tax upon tlie business of publishing a newspaper does not abridge the freedom of the press. City of Norfolk v. Norfolk Landmark Pub. Co., 95 Va. 564, 28 S. E. 959. It may be remarked that in some American cities the police department exercises a censorship over bill-boards and advertising displays, at least so far as to prevent the ex- hibition of obscene or Immorally suggestive illustrations. See "Constitu- tional Law," Dec. Dig. (Key No.) § 90; Cent. Diff. § 112. 660 POLITICAL AND PUBLIC RIGHTS. (Ch. 19 249. ATisoInte privilege exempts from all responsibility without any consideration of motive or design. 250. Conditional privilege protects the person in case his statement, though unfounded in fact, ivas made for proper ends and from justifiable motives. 251. Absolute privilege attaches to statements made, in the line of their duty, by — (a) Members of the legislative bodies. (b) The principal officers of the executive branch of the government. (c) Participants in judicial proceedings. 252. Conditionally privileged communications include the following: (a) Published reports of judicial proceedings. (b) Criticisms of public officers. (c) Criticisms of candidates for public office. (d) Criticisms of courts and judges. (e) Criticisms of literary compositions. A bsolu te Privilege — Legislators. One of the highest kinds of privilege known to the law is that of the members of legislative bodies, in respect to utterances or publica- tions made by them in the discharge of their public duties. The fed- eral constitution provides that senators and representatives "for any speech or debate in either house shall not be questioned in any other place." Article 1, §■ 6. And similar provisions are found in the con- stitutions of most, if not all, of the states. This privilege ought not to be construed strictly, but liberally. It should not be confined to delivering an opinion, uttering a speech, or haranguing in debate, but extended to the giving of a vote, to the making of a written report, and to every other act resulting from the nature and in the execution of the office, whether upon the floor of the house or in committees, and also in the official publications of the proceedings of the legisla- tive body. Same — Public Officers. While inferior public officers are amenable to the laws if they at- tempt to make their office a cover for malicious and unfounded at- tacks upon private character, yet it is not to be supposed that the chief executive magistrates of the Union and the states could be held accountable in the courts for anything said or published by them in their official capacity and in the line of their official duty, however injuriously their utterances may reflect upon the reputation of private persons. And the same exemption belongs to judges and judicial officers of all kinds when acting within the limits of their jurisdiction. §§ 248-252) FREEDOM OF SPEECH AND OF THE PKE8S. 661 Same — Participants in Judicial Proceedings. All statements legitimately made in the course of judicial proceed- ings are privileged. This privilege extends alike to parties, counsel, witnesses, jurors, and judges; and it does not in any respect depend upon the bona fides of the person. The occasion on which such a communication is made is absolutely privileged, and the only ques- tions are whether the occasion existed, and whether the matter com- plained of was pertinent to the occasion.'^ For instance, statements made in affidavits, or orally, as a basis for an inquiry into an alleged crime, or for the purpose of setting in motion the machinery of the criminal law, are within this privilege. "Every one having reasonable and probable grounds for believing that a crime has been committed has the right to communicate his belief to the magistrate having ju- risdiction of the offense." And consequently statements which are false in fact, and would be otherwise actionable, are privileged if made in an affidavit or other paper addressed to a magistrate, for the purpose of causing a warrant of arrest or a search warrant to issue, or to a grand jury for the purpose of procuring an indictment.'^ For, said the judges in an early case, if such statements would main- tain an action, "no other would come to a justice to make complaint and to inform him of any felony." '^ If, therefore, such a communi- cation is "apparently pertinent, it is absolutely exempt from the legal imputation of slander; and the party injured is turned round to a different remedy, an action for malicious prosecution, wherein he is bound to prove in the first instance, not merely that the communica- tion was made in bad faith, but that it was not countenanced by prob- able cause." '° The same principle applies to documents properly and pertinently filed in a judicial proceeding after its inauguration. No action will lie for defamatory statements made or sworn in the 76 Gardemal v. McWlUiams, 43 La. Ann. 454, 9 South. 106, 26 Am. St. Rep. 195. See "Lilel and Slander," Dec. Dig. (Key No.) § 38; Cent. Dig. §§ 11^-123. 7TTownsh. Sland. & IJ. | 220; Vogel v. Gruaz, 110 U. S. 311, 4 Sup. Ct. 12, 28 L. Ed. 158 ; Lister v. Ferryman, L. B. 4 H. L. 521 ; Randall v. Hamilton, 45 La. Ann. 1184, 14 South. 73, 22 L. R. A. 649; Games v. Whittaker, 123 Mass. 342; Ball v. Rawles, 93 Cal. 222, 28 Pac. 937, 27 Am.. St. Rep. 174; Warden v. Whalen, 8 Pa. Co. Ct. R. 660. See "Liiel and Slander," Dec. Dig. (Key No.) § 58; Cent. Dig. § 118. 7 8 Ram V. Lamley, Hut. 113. See "Lihel and Slander," Dec. Dig. (Key No.) § 38; Cent. Dig. § 118. 7 8 Howard v. Thompson, 21 Wend. (N. T.) 319, 325, 34 Am. Dec. 238. See "Lihel and Slmder," Dec. Dig. (Key No.) § 39; Cent. Dig. § 124. 662 POLITICAL AND PUBLIC EIGHTS. (Cll. 19 • course of a cause before a court of competent jurisdiction. All docu- ments necessary to the conduct of the cause, such as pleadings, affi- davits, and instructions to counsel, are privileged.*" But still this privilege cannot be abused. If it appears that a statement made in an affidavit in a judicial proceeding was defamatory, wholly gratui- tous and irrelevant, known to be false, and published with malice and without cause or justification, it will support an action.*^ The judge presiding at a trial is of course entirely exempt from responsibility for what he may say in regard to the case, the parties, or the evidence; and the same is true of the jurors in their discus- sion of the case and their deliberations while making up the verdict. Neither will any action of slander lie against a witness for evidence given by him in a judicial proceeding, pertinent and material to the cause, and in response to questions put to him by court or counsel, even though such evidence was false and maliciously designed to in- jure another.*^ But if the witness takes advantage of his position to gratify his personal spite, and goes out of his way to cast injurious reflections upon the character or conduct of another, speaking falsely and maliciously with regard to a matter that has no relation or ref- erence to the subject of investigation, he is not protected from the consequences of his tortious act.*' "A witness in the box," says Od- gers, "is absolutely privileged in answering all the questions asked him by counsel on either side; and even if he volunteers an observa- tion, still if it has reference to the matter in issue, or fairly arises out of any question asked him by counsel, such observation will also be privileged. But a remark made by a witness in the box, wholly irrelevant to the matter of inquiry, uncalled for by any question of counsel, and introduced by the witness maliciously for his own pur- soOdgers, Sland. & L. 187; Henderson v. Broomhead, 4 Hurl. & N. 569. See "Liiel and Slander," Dec. Dig. (Key Tflo.) % 38; Cent. Dig. §§ 119, 120. SI Sherwood v. Powell, 61 Minn. 479, 63 N. W. 1103, 29 L. R. A. 153, 52 Am. St. Rep. 614. See "Liiel and Slander," Dec. Dig. (Key No.) § 38; Cent. Dig. §§ 119, 120. 82 Seaman v. Nethercllft, 2 C. P. Div. 53 ; Allen v. Crof oot, 2 Wend. (:;j. Y.) 515, 20 Am. D^c. 647; Calkins v. Sumner, 13 Wis. 193, 80 Am. Dec. 738; Crecelius v. Bierman, 59 Mo. App. 513 ; Baldwin v. Hutcbison, 8 Ind. App. 454, 35 N. E. 711 ; McLaughlin v. Charles, 60 Hun, 239, 14 N. Y. Supp. 608 ; Etchison v. Pergerson, 88 Ga. 620, 15 S. E. 680. See "Lihel and Slander," Dec. Dig. (Key No.) § 38; Cent. Dig. § 121. 8 3 Hunckel v. VoneifE, 69 Md. 179, 14 Atl. 500, 9 Am. St. Eep. 413, per Rob- inson, J., dissenting. See "Lilel and Slander," Dec. Dig. (Key No.) § 38; Cent. Dig. § 121. §§ 248-252) FEEEDOM OF SPEECH AND OF THE PRESS. 663 poses, would not be privileged." ** Another and very important case of absolute privilege is that of a lawyer addressing the court or jury on his client's case. He is not to be held accountable for his com- ments upon the evidence, the witnesses, or the opposing party, nor can they be made the basis of an action against him. Thus, though an attorney, on the trial of his client on a criminal charge, in com- menting upon the testimony of a witness who has given evidence tend- ing to sustain the charge, may, during his argument, accuse such witness of perjury, in regard to matters to which he has testified perti- nent to the inquiry in hand, he is not liable to an action of slander.*^ Conditional Privilege — Reports of Judicial Proceedings. It is always permissible to pubhsh the proceedings of the courts, if it is done impartially and truthfully, and without intent to reflect injuriously upon the character of any party concerned. "The publi-' cation, without malice, of an accurate report of what has been said or done in a judicial proceeding in a court of justice, is a privileged publication, although what was said or done would, but for the priv- ilege, be libelous against an individual and actionable at his suit; and this is true although what is published purports to be, and is, a report not of the whole judicial proceeding, but only of a separate part of it, if the report of that part is an accurate report thereof and published without malice." *° "The publication of a fair and true report of any judicial proceeding without malice is privileged. This was substantially the rule at common law, and was founded on the principle that the advantage to the community from publicity of pro- ceedings in courts of justice was deemed so great that the occasional inconvenience resulting from it to individuals should yield to the public good. The publication of such proceedings is treated as made without reference to the individuals concerned, and solely for the information and benefit of society, until the contrary appears; and therefore the presumption of malice does not arise and such publica- tion is privileged." *' But the privilege extends only to an actual Si Odgers, Sland. & L. 191. 8 5 Jennings v. Paine, 4 Wis. 358. See "Lihel and Slander," Dec. Dig. (Key No.) § 38; Cent. Dig. §§ 117, 122. 88 Maedougall v. Knight, 25 Q. B. Diy. 1. See "Libel and Slander," Dee. Dig. (Key 'No.) § Jf2; Cent. Dig. § 121. 8 7 Salisbury v. Union & Advertiser Co., 45 Hun (N. Y.) 120. And see Johns V. Press Pub. Co. (Super. N. Y.) 19 N. Y. Supp. 3 ; Hawkins v. Globe Printing Co., 10 Mo. App. 174. See "Libel and Slander," Dec. Dig. (Key No.) § 42; Cent. Dig. § 127. 664 POLITICAL AND PUBLIC EIGHTS. (Ch. 19 record of the proceedings. Comments upon the case or upon the evidence, remarks upon the character or history of the parties con- cerned, descriptive headings, observations and innuendos are not privileged ; if unfair, false, or defamatory, they are libelous, and may be punished as such.«* Neither does the privilege extend to the re- porting of such proceedings as are merely preliminary or ex parte. "If the publisher of a newspaper,'' says the supreme court of Ohio, "may, in virtue of his vocation, without responsibility, publish the details of every criminal charge made before a police officer, how- ever groundless, and whether emanating from the mistake or the malice of a third person, then must private character be indeed im- perfectly protected. Such publications not only inflict an injury of the same kind with any other species of defamation, but their ten- dency is also to interfere with the fair and impartial administration of justice, by poisoning the public mind and creating a prejudice against a party whom the law still presumes to be innocent." *' The pro- ceedings before a grand jury are not proceedings before a judicial body, in the sense that the publication of such proceedings is privi- leged."" But one is not punishable for publishing a report of a legislative committee, although it reflects upon the character of an individual."^ Same — Criticism of Public Officers. In the class of conditionally privileged communications are included criticisms upon the official character or conduct of a public officer. Such criticisms are not actionable if made with an honest design to enlighten the public and for their interest and benefit, but they are punishable if made with a malicious design to injure or degrade the individual. "The official act of a public functionary," says the court in New York, "may be freely criticised, and entire freedom of ex- pression used in argument, sarcasm, and ridicule upon the act itself, and then the occasion will excuse everything but actual malice and evil purpose in the critic." But "the occasion will not of itself ex- es Thompson V. Powning, 15 Nev. 195; In re Egan (S. D.) 123 N. W. 478. See "Ubel and Slander," Deo. Dig. (Key No.) § 42; Cent. Dig. § m. 8 9 Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 548, 78 Am. Dec. 285. See "Lilel and Slander," Dec. Dig. (Key JVo.j § 43; Cent. Dig. § 121. 80 McCabe v. Cauldwell, 18 Abb. Prac. (N. X.) 377. See "iifteJ and Slander," Dec. Dig. (Key No.) § 42; Cent. Dig. § 121. SI Rex V. Wright, 8 Term R. 293. See "Liiel and Slander," Dec. Dig. (Key No.) § 43; Cent. Dig. § 128, §§ ^48-252) FREEDOM OP SPEECH AND OF THE PRESS. 665 cuse an aspersive attack upon the character or motives of the officer ;, and to be excused, the critic must show the truth of what he has uttered of that kind." °^ A publication, therefore, which would be a libel on a private person may not be a libel on a person acting in a public capacity; but any imputation of unjust or corrupt motives is equally libelous in either case."^ Thus, it is a libel to charge a mem- ber of the legislature with acting corruptly in his official capacity, or with being induced by some pecuniary or valuable consideration to act in a particular manner upon matters coming before him as a legisla- tor.'* So, a charge that a financial statement of a county by the county auditor was false, and that an officer who would swear to one lie would swear to another, is a libel."" Further, in applying the rule of fair and reasonable comment upon the public conduct of an officer, the courts will not be illiberal in measuring the degree of warmth and vigor which the writer may infuse into his language. But when such criticism turns into gibes, taunts, or sneers, or personal insult or de- rision, directed against his physical peculiarities, his idiosyncrasies of manner, or his name, calculated to bring him into ridicule and con- tempt, the limits of privilege are overstepped and the article becomes a libel. °® And again, false and defamatory words in regard to a pub- lic officer, spoken or published of him as an individual, are not privi- leged on the ground that they related to a matter of public interest, and were spoken or published in good faith."'' Same — Criticism of Candidates for Office. A similar rule obtains in regard to criticisms upon the character, history, or fitness of a candidate for public office, elective or ap- pointive. "The fitness and qualification of a candidate for an elective office may be a subject for the freest scrutiny and investigation, either 8 2 Hamilton v. Eno, 81 N. X. 116. See "Libel and Slander," Deo. Dig. (Kev ■No.) § 48; Cent. Dig. §§ llfS, U6. 93 Parmlter v. C!oupland, 6 Mees. & W. 105. See "Libel and Slander," Dec. Dig. (Key No.) § 4S; Cent. Dig. §§ U5, U6. 9 4 Wilson v. Noonan, 23 Wis. 105; State v. Schmltt, 49 N. J. Law, 579, 9 Atl. 774. See "Libel and Slander," Dec. Dig. (Key No.) §§ 10, US; Cent. Dig. §§ 92, m- 9 6prosser v. Callis, 117 Ind. 105, 19 N. E. 735. See "Libel and Slander," Dec. Dig. (Key No.) § 10; Cent. Dig. § 93. 9 6 Buckstaff V. Viall, 84 Wis. 129, 54 N. W. 111. See "Libel and Slander," Dec. Dig. (Key No.) § 48; Cent. Dig. § U5. 9T Post Pub. C!o. V. Moloney, .50 Obio St. 71, 33 N. E. 921. See "Libel anO- Slander," Dec. Dig. (Key No.) § 4S; Cent. Dig. § US. 666 POLITICAL AND PUBLIC EIGHTS. (Ch. 19 by the proprietor of a newspaper or by a voter or other person having an interest in the matter, and much latitude must be allowed in the publication, for the information of voters, of charges affecting the fitness of a candidate for the place he seeks, so long as it is done honestly and without malice. Nor will such publication be actionable without proof of express malice, although it may be harsh, unjust, and unnecessarily severe, for these are matters of opinion of which the party making the publication has a right to judge for himself. In the case of such a publication, the occasion rebuts the inference of malice which the law would otherwise raise from its falsity, and no right of action exists, even though the character of the party has suffered, unless he is able to show the existence of actual malice. But when the publication attacks the private character of a candidate by falsely imputing to him a crime, it is not privileged by the occasion, either absolutely or qualifiedly, but is actionable per se, the law im- plying malice; and it is no justification that the publication was made with an honest belief in its truth, in good faith, and for the purpose of influencing voters. Such publications can only be justified by proof of their truth." °' The mental qualifications of a candidate for public office, no less than his character and his fitness in other re- spects, are open to fair discussion, and it is not libelous to argue that he has not sufficient education or intelligence to discharge the duties of the office in a proper manner, provided the writer's arguments are fair and based on fact. But it is not permissible falsely to charge him with having spoken or written words which, if actually uttered by him, would show him to be utterly illiterate and stupid.'^ Same — Criticism of Courts and Judges. It is the right of the citizen to comment upon the decisions and actions of the courts of justice, and to discuss their correctness, the fitness or unfitness of the judges for their stations, and the fidelity with which they perform their duties ; but he has no right to attempt by defamatory publications, to degrade the tribunal, destroy public 9 8 Upton v. Hume, 24 Or. 420, 33 Pac. 810, 21 L. R. A. 493, 41 Am. St. Rep. 863. And see Wheaton v. Beecher, 60 Mich. 307, 33 N. W. 503; Hallam v. Post Pub. Co. (C. C.) 55 Fed. 456; Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S. E. 68, 69 L. R. A. 101, 106 Am. St. Rep. 104 ; State v. Jun- Idn, 85 Neb. 1, 122 N. W. 4T3. See "Libel and Slander," Dec. Dig. (Key No.) % JiS; Cent. Dig. § U6. 09 Belknap v. Ball, 83 Mich. 583, 47 N. W. 674, 11 L. R. A. 72, 21 Am. St. Rep. 622. See "Libel and Slander," Dec. Dig. (Key No.) § .}S; Cent. Dig. § i.)0. §§ 248-252) FBEEDOM OF SPEECH AND OP THE PKESS. 667 confidence in it, and dispose the community to disregard its orders and decrees. Such publications are an abuse of the liberty of the press, and are punishable."" Thus, to say of a judge that he will allow his political predilections to influence his judicial action in favor of his fellow partisans, is libelous, and not privileged.^"^ So, also, an article charging a judge with maintaining a secret part- nership in the business of the law with his son, the latter being a member of the bar in active practice, with the inference that the judge receives fees from parties to cases coming before him in his court, amounts to a charge of misconduct in office, and is libelous if not true.^°^ And, again, an article imputing to a judge engaged in the trial of a cause such conduct in respect to the case upon trial as, if true, would render him an unfit person to preside at the trial, is libelous and a contempt of court."^ Same — Criticism of Literary Compositions. Criticisms of books and other literature offered to the public are privileged provided they are honest and fair, made in good faith, and not used as a cloak to cover an injurious personal attack upon the writer. It is not libelous to ridicule a literary composition, or the author of it, in so far as he has embodied himself in his work; and if he is not followed into domestic life for the purpose of personal slander, he cannot maintain an action for any damage he may suffer in consequence of thus being rendered ridiculous.^"* To say of a published pamphlet, dealing with a public question, that it is "the effusion of a crank," is not necessarily libelous. To make it so, it must be shown that the word "crank" carries a defamatory meaning, and that the plaintiff has been specially damaged.^"" 100 state V. Morrill, 16 Ark. 384; Burdett v. Ck)m., 103 Va. 838, 48 S. E. 878, 68 L. R. A. 251, 106 Am. St. Rep. 916 ; State v. Rosewater, 60 N'eb. 43S, 83 N. W. 353 ; State v. Tugwell, 19 Wash. 238, 52 Pac. 1056, 43 L. R. A. 717. See "Constitutional Law," Dec. Dig. (Key No.) § 90; Cent. Dig. § 172. 101 In re Moore, 63 N. C. 307. See "Contempt," Dec. Dig. (Key No.) § S; Cent. Dig. § XJf. 102 Royce V. Maloney, 58 Vt. 437, 5 Atl. 395. See "Lidel and. Slander," Deo. Dig. (Key No.) § 7; Cent. Dig. § 35. 103 Myers v. State, 46 Ohio St. 473, 22 N. E. 43, 15 Am. St. Rep. 638. See ^•Contempt," Dec. Dig. (Key No.) § 9j Cent. Dig. § 15. 104 Carr v. Hood, 1 Camp. 354, note. See "Lihel and Slander," Dec. Dig. (Key No.) § 48; Cent. Dig. § J//7. 105 Walker v. Tribune Co. (C. C.) 29 Fed. 827. -See "Lihel and Slander," Dec. Dig. (Key No.) § 9; Cent. Dig. § 88. 668 POLITICAL AND PUBLIC EIGHTS. (Ch. 19 Jury as Judges of the Lazv. In the constitutions of many of the states, it is provided that, in prosecutions for libel, the jury shall be judges of the law. This pro- vision is in furtherance of the right of free speech, or was intended to be so. For it is historically due to the early disposition of the Eng- lish courts (before alluded to, and particularly with reference to Lord Mansfield) to limit the province of the jury to the single fact of pub- lication, reserving to the court the right, to determine whether or not the publication in question was libelous. Such a constitutional pro- vision makes the latter question, no less than the former, a subject for the sole decision of the jury. THE RIGHT OF ASSEMBLY AND PETITION. 253. Tlie first amendment to the federal constitution provides that "congress shall make no lair abridging the right of the peo- ple peaceably to assemble and to petition the government for a redress of grievances." This clause was probably suggested by the fifth declaration of the English Bill of Rights, passed in the first year of William and Mary, after the revolution of 1688, wherein the right of the subject to peti- tion the king is set forth. But the right secured is so essential to a free government that it would probably be regarded as inherent in the nature of our republican systems, even if it were not expressly placed under the protection of the constitution. The prohibition, however, is here laid only upon congress. It is intended as a pro- tection against federal action alone. But the right of the people peaceably to assemble for the purpose of petitioning congress for a redress of grievances, or for anything else connected with the powers or duties of the national government, is an attribute of national citi- zenship, and as such under the protection of and guarantied by the United States. The very idea of a government republican in form implies that right, and an invasion of it presents a case within the sovereignty of the United States.^°° 106 u. S. V. Crulksbank, 92 U. S. 542, 23 I* Ed. 588. See Widmayer t. United States, 42 Ct. CI. 519, holding that the right of the citizen to petition congress for a redress of grievances Imposes upon congress the duty of Inves- tigation, either through committees or the court of claims. iSee "Constitu- tional Law," Dec. Dig. (Key No.) § 91; Cent. Dig. § Its. § 253) THE BIGHT OF ASSEMBLY AND PETITION. 669 It will be noticed that two separate, though related, rights are here secured. It is not that the right to assemble for the purpose of framing or presenting petitions is guarantied. But the people have the right to assemble for lawful purposes, though no petition is in- cluded within the scope of those purposes. But since assemblages for commercial, social, religious, or commemorative purposes are sufficiently cared for in other provisions of the various constitutions, the importance of the clause under consideration will principally be apparent in connection with political meetings.^" And here the right of assembly will include not only the meetings and conventions famil- iar in our political methods, but also the assemblage of those who have no standing as voters, when held with a view to secure political recognition or urge the repeal of oppressive laws. But the right of assembly and petition is not absolutely unrestricted. It must be exercised "peaceably." By this is meant that assemblies must be for lawful purposes and must not be tumultuous or riotous in their character, and that petitions must not be of a seditious na- ture, nor accompanied by any parade of force or show of intimidation or threats.^*" If these conditions are violated, the participants be- come amenable to the criminal laws, and cannot complain that their lawful rights are abridged. This principle may be illustrated by certain facts from English constitutional history which preceded the adoption of our own constitution. It is a maxim of the law of Eng- land that the subject has a right to prefer petitions for the redress of grievances. This right was fully and triumphantly vindicated upon the trial and acquittal of the seven bishops, in the fourth year of James II., and the result of that trial has always been regarded as one of the most notable victories of the law against attempts at ty- 107 gee Brltton v. Board of Election Com'rs, 129 Cal. 337, 61 Pac. 1115, 51 I/. R. A. 115, holding that the "primary election" law of California, providing an exclusive scheme, controlling political parties in holding their conventions for the nomination of candidates to public ofHce, but denying the benefits of the act to all political parties which did not cast at the next preceding election at least three per cent, of the total vote, is in conflict with the con- stitutional provision for freedom of assembly, since it not only discriminates between political parties and the members thereof, but works the disfran- chisement of voters, or compels them, if they vote at all, to vote for represen- tatives of a political party other than that to which they belong. And see State V. Junkin, 85 Neb. 1, 122 N. W. 473. See "Constitutional Law," Dec. Dig. (Key No.) § 91; Cent. Dig. § ItS. 10 8 See Com. v. Abrahams, 156 Mass. 57, 30 N. B. 79. See "Constitutional Law," Dec. Dig. (Key No.) § 91; Cent. Dig. § 173. 670 POLITICAL AND PUBLIC EIGHTS. (Ch. 19 rannical oppression of the people.^"* Yet at that very time there was on the statute book an act against "tumultuous petitioning," wherein it was provided that not more than twenty names should be signed to any petition to the king or either house of parliament for any alteration of matters established by law in church or state, unless the contents thereof were previously approved, in the country, by three justices or the majority of the grand jury at the assizes or quarter sessions, and in London, by the lord mayor, aldermen, and common council, and that no petition should be delivered by a company of more than ten persons."" Afterwards came the Bill of Rights, wherein it was declared "that it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal." But the statute referred to was not repealed by this declaration, and it is still in force in England, though probably entirely a dead letter. The distinction which it introduced, between lawful and peaceable petitioning and such proceedings as are riotous or tumultuous, has become a recognized part of the English law, though the specific pro- visions of the statute are no longer regarded. This was made ap- parent upon the trial of Lord George Gordon for high treason, in 1781. The followers of this nobleman, in immense numbers, pre- senting the petition of the Protestant Association, had besieged par- liament in its very house with threats, violence, and rioting. On this trial. Lord Mansfield charged the grand jury that "to petition for the passing or repeal of any act is the undoubted- inherent birthright of every British subject, but under the name and color of petitioning to assume command, and to dictate to the legislature, is the annihila- tion of all order and government. Fatal experience had shown the mischief of tumultuous petitioning, in the course of that contest, in the reign of Charles I., which ended in the overthrow of the monarchy, and the destruction of the constitution; and one of the first laws after the restoratioipi of legal government was a statute passed in the 13th year of Charles II., enacting that no petition to the king or either house of parliament for alteration of matters established by law in church or state, shall be signed by more than twenty names or de- livered by more than ten persons. In opposition to this law, the peti- tion in question was signed and delivered by many thousands, and in defiance of principles more ancient and more important than any 109 Case of The Seven Bishops, 12 How. St. Tr. 183; Broom, Const. Law, 406. 110 Stat. 13 Car. II. St. 1, c. 5. § 253) THE EIGHT OF ASSEMBLY AND PETITION. 671 regulations upon the 'subject of petitioning. The desire of that pe- tition was to be effected by the terror of the multitude that accom- panied it through the streets, classed, arranged, and distinguished as directed by the advertisements." ^^^ The meaning of this clause in the first amendment to the federal constitution was brought into prominent light, and its effect earnestly debated, in 1836 and 1837, when the house of representatives adopted a resolution that all petitions relating in any manner to the subject of slavery or the question of its abolition should be laid on the table, without being either printed or referred, and that no further action whatever should be had upon them. But no important rule or prin- ciple was established, and the resolution itself, with the debates which accompanied it, are now of historical interest only.^^^ The right of petition would be of but little value if the persons ex- ercising it were afterwards liable to be punished for their use of the privilege. "I take it to be undeniable," says a learned judge, "that the right of petition, as that expression is used in the constitution of the state, means the right of every being, natural and artificial, to ap- ply to any department of government, including the legislature, for the redress of grievances or the bestowal of right, and is a further guaranty of the enjoyment of such redress or right when obtained, free from all forfeiture or penalty for having sought or obtained it." ^^' And it is a well-settled principle of law that petitions and memorials are privileged (so that the authors or signers of them are exempt from all liabihty, under the law of libel, for the statements made in them) if they are made in good faith and for a proper pur- pose, by a party having an interest in the matter to a party having an interest or a power to act.^^* Thus, for example, a letter or pe- tition addressed to the President, the governor of a state, or any public officer having the power to act in the matter, complaining of misconduct in an inferior officer, or containing accusations against him, and demanding his removal from office, is not a libel if it was written as a bona fide complaint, to obtain redress for a grievance 111 Proceedings against Lord George Gordon, 21 How. St. Tr. 487. 112 See 2 Von Hoist, Const. Hist. U. S. pp. 245-2G2. 113 Citizens' Bank of Louisiana v. Board of Assessors for the Parish of Orleans (C. C.) 54 Fed. 73. See "Constitutional Law," Dec. Dig. (Key No.) § 91; Cent. Dig. § 113. 114 Harrison v. Bush, 5 El. & Bl. 344; Wright v. Lothrop, 149 Mass. 385, 21 N. E. 963 ; Odgers, Sland. & L. 220. See "Libel an4 Slander," Dec. Dig. (Key No.) § 37; Cent. Dig. § 116. 672 POLITICAL AND PUBLIC EIGHTS. (Ch. 19 which the party really believed he had suffered. Such petitions are so far of the nature of judicial proceedings that the accuser is not held to prove the truth of them, nor is he responsible for the injury they may do to the person accused, unless they were founded in malice and made wantonly and without probable cause. '■^° A communica- tion intended to be made to the proper authority, respecting matters affecting the honesty of a public employe, is privileged, if made in good faith and without any personal malicious motive, although in fact it is addressed and delivered to the wrong person."' DISFRANCHISEMENT. 254. In the TTnited States, disfTanchisement exists only as a pnnisli- ment for crime or as a consequence of conviction thereof. It may inclnde— (a) Iioss of the right of snffrage. (b) Disqualification to be a iritness in judicial proceedings. (c) Disqualification to hold public office. Meaning of Disfranchisement. Disfranchisement is defined as the act of depriving a person of franchises formerly held by him. In public law, it is applied es- pecially to the taking away from an individual of his political rights and privileges, or of his rights as a free citizen. In a still narrower sense, it means the disqualification of an individual to exercise the elective franchise. In old English law, a person who was outlawed, excommunicated, or convicted of an infamous crime, was said to "lose his law" (legem amittere), which included the loss of his civil rights or the benefit and protection of the law, and in a more restricted sense, the depriva- tion of the right to give his evidence as a witness in a court of law. On the other hand, a man who stood "rectus in curia," that is, pos- sessed of all his civil rights, and not outlawed, excommunicated, or infamous, was called "legalis homo," or a "good and lawful man." Something similar to this was found in the Roman law, where the lesser or medium loss of status (capitis diminutio media) occurred 115 Woodward v. Dander, 6 Car. & P. 548; Gray v. Pentland, 2 Serg. & R. (Pa.) 23 ; Kent v. Bongartz, 15 R. I. 72, 22 Atl. 1023, 2 Am. St. Rep. 870. See "Libel OMd Slander," Deo. Dig. (Key No.) § 39; Cent. Dig. §§ ig^-igff. lie Scarll v. Dixon, 4 Fost. & F. 250. See "lAhel and Slander," Dec. Dig. (Key No.) § U; Cent. Dig. § 136. § 254) DISFRANCHISEMENT. 673 when a man lost his rights of citizenship, and his family rights, but without losing his liberty. In the United States, the deprivation of civil rights can be inflicted by the government only as a punishment for crime, or it may be de- creed to follow as a consequence of the infamy supposed to charac- terize one convicted of crime. Citizenship, as such, can never be forfeited save by the voluntary renunciation of the party. That is to say, there is no constitutional way in which the United States or a state could reduce a person, enjoying the character of a citizen, to the standing of an alien. But several of the privileges attached to the status of citizenship may be stripped off, by way of punishment • for an offense duly proven in the courts. This power, however, can- not be exercised in any arbitrary manner, nor by laws framed against particular individuals or classes of citizens. An act inflicting such disqualifications, if aimed at a particular person or class, and having relation to past acts only, would amount to a bill of attainder or an ex post facto law, or partake of the character of both.^^' Discriminations as to Offices. Although the power to discriminate against individuals or classes, in the distribution of civic rights or the infliction of civil disqualifi- cations, is denied to the states by provisions found both in their own constitutions and in the last three amendments to the constitution of the United States, yet, in prescribing the qualifications for office, or distributing the patronage of the state, it is not incompetent for the legislature to make reasonable and proper discriminations. No one, for instance, could successfully question the validity of the civil serv- ice laws which make the passing of an examination a prerequisite to the right to be appointed to office. So, also, it is held that statutes providing that honorably discharged soldiers and sailors of the late civil war shall be preferred for appointments to positions in the civil service of the state and of its cities, over other persons of equal stand- ing, are not unconstitutional.^^* And in New York it has been ad- judged that a law declaring that not more than two of the three per- sons constituting the civil service commission thereby established shall iiT Cummlngs v. Missouri, 4 Wall. 277, 18 L. Ed. 356; Ex parte Garland, 4 Wall. 333, 18 L. Ed. 366. See "Constitutional Law," Dec. Dig. (Key No.) § 199; Cent. Dig. §§ 551-569. 118 In re Wortman (Sup.) 2 N. Y. Supp. 324; Sullivan t. Gilroy, 55 Hun. 285, 8 N. Y. Supp. 401. See "Offloers," Dec. Dig. (Key No.) § 10; Cent. Dig. § 12; "Municipal Corporations," Dec. Dig. (Key No.) § 124; Cent. Dig. i 291. Bi..Const.L.(3d.Ed.) — 13 674 POLITICAL AND PUBLIC EIGHTS. (Ch. 19 be adherents of the same political party, is not in conflict with the constitutional provision that "no member of this state shall be dis- franchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers." ^^° Right of Suffrage. In most of the states, as already remarked, many persons who are entitled to be denominated citizens are not allowed the privilege of the ballot. Such are women, minors, insane persons, the illiterate, and ■ in some states the proletarian classes. But the denial of the right of suffrage to these persons cannot properly be called a disfranchise- ment of them, because that term is correctly applied only to the* deprivation of a privilege heretofore enjoyed. But disfranchisement, in the sense of a taking away of the elective franchise from persons who formerly possessed it, exists in most of the states as a punish- ment for crime. Several of the state constitutions contalin provisions denying the right of voting at public elections to those who shall be convicted of an "infamous crime," or of "high, crimes," or of "fel- ony." And in some of the constitutions, various crimes are specified, a conviction of which shall work the deprivation of this right, such as treason, bribery, duelling, betting on elections, perjury, embezzle- ment of public money, larceny, and forgery.^ ^" Disqualification to be a Witness. By the English common law, a person who was convicted of an infamous crime was thereby rendered incompetent as a witness, on the theory that a person who would commit so heinous a crime must necessarily be so depraved as to be unworthy of credit. These crimes were treason, felony, and the crimen falsi. But at present, the dis- qualification of infamy has been done away with by statute in Eng- land and in most of the United States, and the rule has been substi- tuted that a conviction for crime may be adduced in evidence to af- fect the credibility of the witness.^^^ 110 Rogers v. Common Council of City of Buffalo, 123 N. Y. 173, 25 N. E. 274, 9 L. R. A. 579. But compare City of EvansvlUe v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93. See "Constitutional Law," Dec. Dig. (Key Ifo.) § 277; Cent. Dig. § 766. 120 Stim. Am. St. Law, pp. 62, 63. See Baum v. State, 157 Ind. 282, 61 N. E. 672, 55 L. R. A. 250. See "Elections," Dec. Dig. (Key No.) §§ 18, 90; Cent. Dig. §§ 13, 87. 121 1 Whart. Ev. § 397. § 254) DISFKANCHISKMENT. 675 Ineligibility to Office. If a convict is considered unworthy to exercise the elective fran- chise, much more should he be deemed unfit to hold office in the gov- ernment. Accordingly, we find that the constitutions of many of the states declare that no person who has been convicted of certain crimes shall be eligible to hold public office.^*^ These provisions vary greatly in respect to the specific crimes which are to be attended with this consequence. But those most frequently enumerated are treason, bribery, duelling, malfeasance in office, public defalcation or embez- zlement of the public funds, perjury, offenses against the election laws, and murder. In a number of the states, the disqualification at- taches to the conviction of any infamous crime. This consequence of a conviction is strictly and properly a punishment. It cannot be inflicted except by due process of law. Thus, a constitutional provi- sion making a defaulter or embezzler of the public money ineligible to any office of trust or profit presupposes that the default shall be ascertained and fixed by judicial or other legal authority; until this is done, the acts of a person holding the office will be valid and bind- ing, and his sureties will be liable for them.^^^ But a person who has committed an act disqualifying him for office may be removed from his office by a proceeding by quo warranto, or by information in the nature of a quo warranto, although he has not been convicted of the offense in any criminal prosecution against him.^^* 122^711116 the legislature cannot establish arbitrary exclusions from -office, nor any general regulations requiring qualifications which the state constitu- tion has not required, yet a law declaring that no person guilty of certain enumerated criminal offenses shall be eligible to any office of profit, trust, or emolument under the state government, is valid. Barker v. People, 3 Cow. (N. Y.) 6S6, 15 Am. Dee. 322. See "Officers," Dec. Dig. (Key No.) § 19; Cent. Dig. § 23. 12S Cawley v. People, 95 111. 249. See "Officers," Dec. Dig. (Key No.) § 131; Cent. Dig. § 2^9. 12* Royall V. Thomas, 28 Grat. (Va.) 130, 26 Am. Rep. 335; Com. v. Walter, 83 Pa. 105, 24 Am. Rep. 154; Brady v. Howe, 50 Miss. 607. See "Quo War- ranto," Dec. Dig. (Key No.) § U; Cent. Dig. § 16. 676 CONSTITUTIONAL GUARANTIES IN CEIMINAL CASES. (Ch. 30 CHAPTER XX. CONSTITUTIONAL GUARANTIES IN CRIMINAL OASES. 255-256. Provisions in the Constitutions. 257. Presentment or Indictment. 258-259. Trial by Jury. 260. Privilege against Self-Criminating Evidence. 261. Confronting with Witnesses. 262. Compelling Attendance of Witnesses. 263. Right to be Present at Trial. 264. Assistance of Counsel. 265. Right to be Heard. 266. Speedy and Public Trial. 267-269. Twice in Jeopardy. 270. Bail. 271. Cruel and Unusual Punishments. 272. Bills of Attainder. 273. Ex Post Facto Laws. 274. Suspension of Habeas Corpus 275-277. Definition of Treason. 278. Corruption of Blood and Forfeiture. PROVISIONS IN THE CONSTITUTIONS. 255. ITndeT the American systems, every person charged \rith crime and brought to trial therefor is secured, by constitutional guaranties, in the enjoyment of certain rights Trhich are gen- erally deemed essential to the due administration of justice under a free government. Some of these rights are secured by the constitution of the United States, others by the con- stitutions of the individual states, and others by both con- currently. 256. The most important of these rights are as follows: (a) The right to a presentment or indictment by a grand jury. (b) The right to be tried by a petit jury. (c) The exemption of the prisoner from being compelled to testify against himself. 09 Shular v. State, 105 Ind. 289, 4 N. E. 870, 55 Am. Rep. 211. Compare State V. Bertin, 24 La. Ann. 46. See "Criminal Laiv," Dec. Dig. (Key No.} § 636; Cent. Dig. § UU- 692 CONSTITUTIONAL GUARANTIES IN CRIMINAL CASES, (Ch. 20 ment, or when enough has been proved to cast upon him the burden of showing that he has not been instrumental in concealing them or keeping them away, and he, having full opportunity therefor, fails to show this, then he is in no condition to assert that his constitutional right has been violated if the court allows competent evidence of the testimony which they gave on a previous trial between the govern- ment and him on the same issue; such evidence is admissible.'" COMFELIiING ATTENDANCE OF WITNESSES. 262. The constitntional rigbt of the defendant in a criminal prose- cution to have compulsory process for securing the attendance of witnesses in his behalf grours out of the right of such de- fendant to rebnt the charge brought against him, by the testi- mony of iritnesses, and includes the right to examine such ivitnesses and to compel them to answer admissible questions under oath. The right of a person accused of crime to adduce testimony in his own behalf was not a common law right, at least in cases of treason or felony, nor, comparatively speaking, was it of very early origin in English law. The privilege of having witnesses speak to exculpatory facts was grudgingly accorded, but they were not put under oath, and their statements were consequently not regarded as evidence which the jury must take into account. It was not until the first year of the reign of Anne that the same privilege in this respect was granted to the prisoner as to the crown. But the recognition of this right was regarded as one of the most important of the reforms in the law of criminal procedure, and the right itself was justly con- sidered by the framers of our constitutions as one of the most valu- able guaranties of liberty.*^ A statute which permits the prosecuting attorney to admit that an absent witness would testify to the facts as set forth in the affidavit on motion by the defendant for a continuance, if he were personally present, and thereby compel the defendant to go to trial without the benefit of his testimony, is unconstitutional.'^ But this right does «o Reynolds v. U. S., 98 U. S. 145, 25 L. Ed. 244. See "Criminal Law," Dec. Dig. (Key No.) § 662; Cent. Dig. § loU- ei See 4 Bl. Oomm. 360, 441. «2 State V. Berkley, 92 Mo. 41, 4 S. W. 24. But the refusal of the court to continue a criminal case on account of the absence of a material witness § 263) EIGHT TO BE PRESENT AT TKIAL. 693 not give the accused a claim against the state for payment of the fees of the witnesses summoned in his defense.®^ But a rule of court prohibiting the issue of more than five subpoenas for witnesses with- out an order of court, obtainable on application showing the material- ity of the witnesses, violates defendant's constitutional right to have compulsory process for obtaining witnesses.^* And a statute pro- viding that whoever steals property in another state or country, and brings it into the state enacting the statute, may be punished for lar- ceny, violates this provision of the constitution, since process of a court of that state cannot reach witnesses where the property was taken.*^ ^ RIGHT TO BE PRESENT AT TRIAL. 263. The riglit of a person charged -with crime to he present at his trial is claimable in, all cases of felony where his life or liherty is put in jeopardy, and it includes the right to be personally present in court at each and every material step irhich affects the substantive question of his guilt or innocence. The right of the defendant in a criminal prosecution to be present at his trial, though not usually specifically granted by the constitu- tions, follows necessarily from his right to be heard and to be con- fronted with the witnesses against him, and from the prohibition against depriving him of his life, liberty, or property without due process of law. The prisoner must be present at each stage of the trial, from the impanelling of the jury to the sentence. But matters of routine or motions not affecting the merits may be determined in his absence, unless it is shown that he was prejudiced thereby.** He may also residing in another state is not a denial of due process of law. Minder v. Georgia, 183 U. S. 559, 22 Sup. Ct. 224, 46 L. Ed. 328. See "Criminal Law," Dec. Dig. (Key No.) § 600; Cent. Dig. § 1S4S; "Constitutional Law," Dec. Dig. (Key No.) § 257; Cent. Dig. §§ 746, 7^7. 6 3 state V. Waters, 39 Me. 54. And see Jenkins v. State, 31 Fla. 190, 12 South. 680. See "Costs," Deo. Dig. (Key No.) § SIO; Cent. Dig. § im. 84Aikin v. State, 58 Ark. 544, 25 S. W. 840. See "Witnesses," Dec. Dig. (Key No.) § 2; Gent. Dig. §§ M- 6 6 Territory v. Hefley, 4 Ariz. 74, 33 Pac. 618. See "Criminal Law," Dec. Dig. (Key No.) § 84; Cent. Dig. § 111. eeweirman v. United States, 36 Ot. CI. 236; Roberts v. State, 111 Ind, 340, 12 N. E. 500; Bond v. Com., 83 Va. 581, 3 S. E. 149; State v. Greer, 22 W. Va. 800. It is also a part of the prisoner's right that the judge shall be 694 CONSTITUTIONAL GUARANTIES IN CEIMINAL CASES. (Ch. 20 forfeit his right to be present by his own misconduct. If he is so boisterous, unruly, or disorderly that it becomes necessary to remove him from the court-room in order to allow the trial to proceed, this may be done, without infringing upon his constitutional rights, ex- cept, perhaps, in capital cases." A charge of a mere misdemeanor, or breach of a police ordinance, may lawfully be tried in the absence of the accused, if he was legally arrested."* While the prisoner must be present in the trial court when sentence is passed upon him, yet it is not essential that he should be present in an appellate court when the latter affirms the judgment of the trial court, without passing any new judgment. He has no consti- tutional right in that regard, and the sentence, thus affirmed, is not invalid because of his absence.*" ASSISTANCE OF COUNSEL. 264. Tlie constitution of the United States, and tlie constitutions of many of the states, provide that the accused shall have the assistance of counsel for his defense. Although it was permitted by the common law that an accused person should have the benefit of the advice and assistance of counsel, it was not until a comparatively recent period in English law that counsel for the prisoner were allowed to address the jury in his behalf. Under our constitutional provisions, the right to have the assistance of counsel includes the right of the prisoner to have a pri- vate interview and consultation with his counsel before the trial, or even before indictment found, if he is under arrest, in order to take present and preside during the entire trial. If the judge is absent from the court room for any considerable time, even when counsel are arguing to the jury, and the defendant Is convicted of a felony, he may claim that he is deprived of his liberty without due process of law. People v. Tupper, 122 Cal. 424, 55 Pac. 125, 68 Am. St. Rep. 44. See "Criminal Law," Dec. Dig. (Key No.). §§ 6Si, 636; Cent. Dig. §§ H61-H82; "Constitutional Law," Dec. Dig. (Key No.) § 268; Cent. Dig. §§ i56, 757. 8 7 u. S. V. Davis, 6 Blatchf. 464, Fed. Cas. No. 14,923. See "Criminal Law," Dec. Dig. (Key No.) § 636; Cent. Dig. §§ U65-U82. 8 8 City of Bloomington v. Helland, 67 111. 278. And see Wells v. State, 147 Ala. 140, 41 South. 630. See "Criminal Law," Dec. Dig. (Key No.) § 636; Cent. Dig. § U61. 6 9 Schwab V. Berggren, 143 U. S. 442, 12 Snp. Ct. 525, 36 L. Ed. 218. See "Criminal Law," Deo. Dig. (Key No.) § U32; Cent. Dig. § § 264) ASSISTANCE OF COUNSEL. 695 his advice and instruct him as to the defense to be madeJ" And the fact that one accused of crime is himself a lawyer does not de- prive him of the right to be represented by counsel, and he must be given an opportunity to procure professional assistance in his de- fense. ''^ But the guaranty that a person accused of crime shall be entitled to the assistance of counsel does not include a guaranty that such counsel shall be furnished at the expense of the public." An important part of the right secured by this provision of the con- stitutions is that it secures to the prisoner's counsel freedom and independence in his management of the case and in his examination of witnesses and his comments and arguments. Subject to such re- strictions as are necessary to secure the dignity of the court, and to the ordinary rules of propriety, he may say and do all that he deems necessary for the defense of his client, and for what he may utter in the course of the trial he is not to be held to account elsewhere, unless, indeed, he wantonly departs from the evidence and point in issue, and maliciously and slanderously abuses the private character of some person concerned.''^ And that counsel may be free to at- tend to the business of his client without hindrance or interruption, he will be exempt from the service of process upon him while he is actually in attendance upon the court in the interests of the client.^* Furthermore, in order that the accused may be safe in confiding freely in his counsel, it is a rule that communications passing be- tween them, made with a view to the expected or pending trial, are "privileged," and counsel will neither be forced nor allowed to divulge such communications without the consent of the client. "To entitle TO People V. Eiseley, 13 Abb. N. C. (N. T.) 186. See "Criminal Law," Dec. Dig. (Key No.) § 6Jtl; Cent. Dig. § im. 71 People V. Napthaly, 105 Cal. 641, 39 Pae. 29. If the prisoner is unable or unwilling to employ counsel, the. court may assign counsel for his defense from among the members of the bar present at the trial. Dells v. Stale, 99 Ga. 667, 26 S. E. 752; Simmons v. State, 116 Ga. 583, 42 S. E. 779. See "Criminal Law," Dec. Dig. (Key No.) § 641; Cent. Dig. §§ U96-1506. 72 Houk v. Board of Com'rs of Montgomery County, 14 Ind. App. 662, 41 N. E. 1068. See "Criminal Law," Dec. Dig. (Key No.) § 6^1; Cent. Dig. § U96. 73 Munster v. Lamb, 11 Q. B. Div. 588. And see Gray v. Pentland, 2 Serg. & R. (Pa.) 23. See "Criminal Law," Dec. Dig. (Key No.) § 701; Gent. Dig. §§ U96-1506. 7 4 Central Trust Co. v. Milwaukee St Ry. Co. (C. C.) 74 Fed. 442. See "Wit- nesses," Dec. Dig. (Key No.) § S; Cent. Dig. § 8; "Attorney and Client," Dec. Dig. § 16; "Process," Cent. Dig. § HI. 696 CONSTITUTIONAL GUARANTIES IN CRIMINAL CASES. (Ch. 30 a communication to be privileged, it is not essential that it should be made with any special injunction of secrecy, or that the client should understand the extent of the privilege. But if it be made with a view to professional employment, and in reference to such employment in legal proceedings pending or contemplated, or in any other legitimate professional services, wherein professional aid or advice is sought respecting the rights, duties, or liabilities of the cli- ent, it will fall within the privilege, and cannot be disclosed by counsel. This, however, is a rule of law for the protection of the client which he is at liberty to waive." '^ But an attorney may be required to produce documents placed in his hands by his client when the client is charged with a criminal offense in respect to such documents, as, where he has forged an instrument and placed it in the hands of his attorney when his crime was detected. '^^ "And the privilege does not extend to parties seeking for information or advice as to the best mode of infringing the law; communications of an intended ofifense must be disclosed." " RIGHT TO BE HEARD. 265. A person on trial for a criminal offense bas a constitutional right to be heard in his own defense in person and by counsel; but the exercise of this right may be restrained ivithin rea- sonable limits. "The court has no discretionary power over the right itself, for it cannot be denied. And hence it has no right to prevent the accused from being heard by counsel, even if the evidence against him be clear, unimpeached, and conclusive- in the opinion of the court. But the exercise of the right is subject to judicial control to the extent that is necessary to prevent the abuse of it." Hence the court may, in its discretion, limit the time allowed to the accused or his counsel for argument, provided the prisoner is not thereby deprived of a fair trial and a full hearing.'* Where a witness was fully cross-examined T6 McLellan v. Longfellow, 32 Me. 494, 54 Am. Dec. 599. And see Sargent V. Inhabitants of Hampden, 38 Me. 581; State v. Dawson, 90 Mo. 149, 1 S. W. 827. See "Witnesses," Dec. Dig. (Key No.) §§ 205, Z19; Cent. Dig. §i 763, 181, 182. 7 6 Reg. V. Brown, 9 Cox Cr. Cas. 281. See "Criminal Law," Dec. Dig. (Key No.) § 641; Cent. Dig. §§ U96-1S06. " Weeks, Attys. at Daw (2d Ed.) | 170. TSDille V. State, 34 Ohio St. 617, 32 Am. Eep. 395; Hart v. State, 14 Neb. § 266) SPEEDY AND PUBLIC TKIAL. 697 by the prisoner's counsel, and then permission was asked for the de- fendant to examine the witness himself, but was refused, it was ad- judged that the court did not thereby infringe or deny the prisoner's constitutional right of defense by himself, his counsel, or both.''* Un- less changed by statute in the particular jurisdiction, the general rule is that in all criminal trials the prosecution has the right to open the case and to make the closing argument to the jury, since the state must assume the general burden of proving the guilt of the accused.^* A person charged with crime has a right to plead, free from restraint and fear of violence; and where the accused is forced, through ter- ror of mob violence, to enter a plea of guilty, he has a right to re- lief from the judgment entered on such plea.*^ It is also a rule that counsel for the prosecution, in his argument to the jury, must keep within the limits of the evidence. If his remarks include statements or suggestions, calculated to prejudice the jury against the prisoner and to induce a verdict against him, which are not warranted by anything contained in the evidence in the case, such misconduct, un- less promptly and adequately neutralized by the court, may be ground for giving the defendant, upon conviction, a new trial.** SPEEDY AND FUBUC TRIAL. 266. Another protection to those charged with crime is fonnd in the constitutional guaranty that they shall have the benefit of a speedy and public trial. Speedy Trial. By a speedy trial is meant a trial conducted according to fixed rules, regulations, and proceedings of law, free from vexatious, ca- pricious, and oppressive delays manufactured by the ministers of jus- 572, 16 N. W. 903; State v. Boasso, 38 La. Ann. 202. See "Criminal Law," Dec. Dig. (Key No.) § 711; Cent. Dig. § 1657. 7 9 Roberts v. State, 14 Ga. 18. See "Witnesses," Dec. Dig. (Key No.) § 266; Cent. Dig. § 910. 80 Loeffner v. State, 10 Ohio St. 598; State v. Schnelle, 24 W. Va. 767; U. S. V. Bates, 2 Cranch, C. C. 403, Fed. Cas. No. 14,543. See "Criminal Law," Deo. Dig. (Key No.) § 645; Cent. Dig. §§ 1507-1509; "Homicide," Cent. Dig. § 554. SI Sanders v. State, 83 Ind. 318, 44 Am. Rep. 29. See "Criminal Law." Dec. Dig. (Key No.) § 273; Cent. Dig. § 6S2. 82 See Epps v. State, 102 Ind. 539, 1 N. E. 491. See "Criminal Law," Deo. Dig. (Key No.) § 730; Cent. Dig. § 1693. 698 CONSTITUTIONAL GUARANTIES IN CEIMINAL CASES. (Ch. SO tice.'' "The speedy trial to which a person charged with crime is en- titled under the constitution is a trial at such a time, after the finding of the indictment, regard being had to the terms of court, as shall afford the prosecution a reasonable opportunity, by the fair and hon- est exercise of reasonable diligence, to prepare for a trial; and if the trial is delayed or postponed beyond such period, when there is a term of court at which the trial might be had, by reason of the neglect or laches of the prosecution in preparing for trial, such delay is a denial to the defendant of his right to a speedy trial," and he is entitled to be discharged from imprisonment on habeas corpus.'* But if the defendant demands a jury trial after the panel of jurors has been discharged, it is no violation of this right for the court to continue the cause on its own motion until such time as a jury can be lawfully impanelled.*" Public Trial. The guaranty of a "public" trial is intended to secure to the ac- cused the help and countenance of his friends and counsel and of those who could assist him in his defense. This right does not abridge the power of the trial court, in certain emergencies, as when it be- comes necessary to clear the court-room in the interests of the public morals, or to expel a boisterous and unruly audience, to protect an embarrassed or intimidated witness, or to exclude, for other good rea- sons, all but a reasonable and respectable number of the public, al- lowing those only to remain who are in attendance on the court or are its officers and members of its bar and those who can be of help or service to the prisoner.*" 8 3 Stewart v. State, 13 Ark. 720; Nixon v. State, 2 Smedes & M. (Miss.) 497, 507, 41 Am. Dec. 601; Ex parte Stanley, 4 Nev. 113, 116; Beavers v. Haubert, 198 U. S. 77, 25 Sup. Ct. 573, 49 I>. Ed. 950 ; Sample v. State, 138 Ala. 259, 36 South. 367; People v. Moran, 144 Cal. 48, 77 Pac. 777; Marzen V. People, 190 111. 81, 60 N. B. 102. See "Criminal Law," Dec. Dig. (Key No.) § 513; Cent. Dig. § 1292. 8* U. S. V. Fox, 3 Mont. 512, 517. See "Criminal Law," Dec. Dig. (Key No.) § 573; Cent. Dig. § 1S92. 8 5 City of Oreston v. Nye, 74 Iowa, 369, 37 N. W. 777. See "Criminal Law," Dec. Dig. (Key No.) § 573; Cent. Dig. § 1292. 8 6 People V. Swafford, 65 Cal. 223, 3 Pac. 809; People v. Murray, 89 Mich. 276, 50 N. W. 995, 14 L. R. A. 809, 28 Am. St. Rep. 294 ; Benedict v. People, 23 Colo. 126, 46 Pac. 637 ; Jackson v. Com., 100 Ky. 239, 38 S. W. 422, 18 Ky. Law Rep. 795, 66 Am. St. Rep. 336; People v. Yeager, 113 Mich. 228, 71 N. W. 491; People v. Hall, 51.App. Div. 57, 64 N. Y. Supp. 433; Kugadt v. State, 38 Tex. Or. R. 681, 44 S. W. 989. Trial judges should not permit the |§ 267-269) TWICE in jeopakdt. 699 TWICE IXT JEOFABDV. 267. By the constitution of the United States, as well as the consti- tutions ot most of the several states, it is provided that no man shall, for the same offense, he twice put in jeopardy. 268. Jeopardy means danger of punishment. 269. A man is considered to have been put in jeopardy when a valid and sufficient indictment or information has been legally found against him and duly presented to a court of competent juris- diction over both the person and the offense, and thereupon he has been arraigned and has pleaded, and a law^ful jury has been impanelled and S'worn and charged to try the case and render a verdict. This privilege, like many othervaluable guaranties in criminal cases, IS not the creature of the constitutions, but has its roots deeply im- tedded in the universal principles of reason and justice, and derives its substance from the ancient and uninterrupted rules and practices ■of the common law.^' It is true that at common' law the right was restricted to the highest grades of crimes, and the retention, in many ■of the constitutions, of the ancient phrase "jeopardy of life or limb" would seem to indicate that, in this respect, the common law was to l3e adopted and followed. But numerous states, in incorporating the provision in their constitutions, have omitted the limiting words. And in all, it is believed, the process of judicial construction, proceeding on the rule that a remedial provision and one making in favor of lib- erty is to be liberally interpreted, has extended the right so as to make it apply to all indictable offenses, including misdemeanors. This provi- sion, it is said, extends the common law maxim, nemo debet bis puniri pro uno delicto, which was limited to felonies, to all grades of of- fenses. And it is but the application to criminal jurisprudence of a more general maxim, namely, that no one shall be twice vexed for one and the same cause. The object of incorporating it in the funda- mental law was to render it, as respects criminal causes, inviolable "by any department of the government.^* prosecuting attorney or any one else to hold private conferences with them in respect to any issue arising on the trial of a criminal cause. Peaden v. State, 46 Fla. 124, 35 South. 204. See "Criminal Law," Dec. Dig. (Key No.) § 635; Cent. Dig. § H52. 87 4 Bl. Comm. 335. 8 8 state V. Behimer, 20 Ohio St. 572. See Berkowitz v. United States, 93 JPed. 452, 35 O. 0. A. 379, holding that the provision in the fifth amendment 700 CONSTITUTIONAL GUARANTIES IN CKIMINAL CASES. (Ch. 20 Blements. In order to constitute legal jeopardy, all the elements enumerated in the text above must concur. And in the first place, there must be a valid indictment. If the indictment is so defective in form or sub- stance that a conviction founded upon it would be at once set aside for that cause alone, there is no legal jeopardy. Thus, it must be found by a legally constituted grand jury.^* And it must charge an offense recognized and denounced by the law under which the trial is to be had, and must set forth the charge formally and sufKciently. It must not only state all the facts which constitute the offense in- tended to be charged, but must state them with such certainty and precision that the defendant may judge whether they constitute an in- dictable offense or not, and may demur or plead accordingly, and may be able to plead his conviction or acquittal in bar of another prosecu- tion for the same offense.^" In the next place, the proceeding must be had before a court of competent jurisdiction. That is, the court must have jurisdiction of the person, by his being legally before it, and it must have jurisdiction of the offense. And in order to comply with the latter requisite, the crime charged must be one which is defined and made punishable by the law under which the court acts, and which the same law has committed to the jurisdiction of the particular court, or to courts of the grade or character of the particular court, and further, the of- fense must have been committed within the territorial limits to which the jurisdiction of the court extends. Thus, an acquittal by a jury in a court of the United States of a defendant who is there indicted for an offense of which that court has no jurisdiction, is no bar to an indictment against him for the same offense in a state court having jurisdiction.'^ And again, the court must be a competent and law- applies to misdemeanors as well as to treason and felonies. See "Criminal Law," Dec. Dig. (Key No.) § 163; Cent. Dig. § 288. soFinley v. State, 61 Ala. 201; Sims v. State, 146 Ala. 109, 41 South. 413; People V. Ammerman, 118 Cal. 23, 50 Pac. 15 ; State v. Manning, 168 Mo. 418, 68 S. W. 341. See "Criminal Law," Dec. Dig. (Key No.) § 170; Cent. Dig. §§ 312-^21. to State V. Taylor, 34 La. Ann. 978; Davidson v. State, 99 Ind. 366; Fink v. Milwaukee, 17 Wis. 26. See "Criminal Law," Dec. Dig. (Key No.) § 170.' Cent. Dig. §S 312-321. 81 Brown v. State, 120 Ala. 378, 25 South. 203 ; State v. Jamison, 104 Iowa, 343, 73 N. W. 831 ; Com. v. Peters, 12 Mete. (Mass.) 387 ; State v. Cross, 44 W. Va. 315, 29 S. E. 527. The fact that one has been once arrested and ex- §§ 267-269) TWICE in jeopardt. 701 ful court. For if it is organized and acting under an unconstitutional statute, it is no court, and its judgments are nullities, and no legal jeopardy can arise from a trial before it.*^ In the next place, jeopardy does not arise until there has been an arraignment and plea. If there is no arraignment, or a waiver of it, the trial is a nullity, and jeopardy does not attach."' And until the defendant has entered his plea, or it has been entered for him upon his refusal to plead, he cannot be put in jeopardy."* Finally, the jury must be sworn and impanelled and charged with the prisoner's deliverance. (The last phrase means that they are charged to try the case and render a true verdict upon the law and evidence.) At this point, according to the general consensus of judi- cial opinion, jeopardy attaches," ° and whatever procieedings may thereafter be had in the case, the prisoner cannot be again tried for the same offense. It seems to be conceded, however, that if the jury are discharged without a verdict on account of some imperative ne- cessity, such as the sickness of the judge, or the sickness, insanity, or misconduct of a juror, a second trial may lawfully be had. And some very respectable authorities hold that if the jury are discharged be- cause they cannot agree upon a verdict or if judgment upon the ver- dict has been arrested, or even if there is a failure to obtain a verdict for any cause, there is no legal jeopardy. The discussion of this amined before a magistrate and discharged Is not a bar to a second arrest and examination on the same charge. Ex parte Fenton, 77 Cal. 183, 19 Pac. 267. See "Criminal Law," Dec. Dig. (Key No.) § 167; Cent. Dig. §§ 304-Sll. 8 2 Rector V. State, 6 Ark. 187; McGinnis v. State, 9 Humph. (Tenn.) 43, 49 Am. Dec. 697. A former trial for a crime, wherein the proceedings were void because of the disqualification of the judge, will not support a plea of former jeopardy. Ex parte Graham, 43 Tex. Cr. R. 463, 66 S. W. 840, 96 Am. St. Rep. 884. See "Criminal Latv," Dec. Dig. (Key No.) §§ 166, 187; Cent. Dig. §§ 309, 368. osNewsom v. State, 2 Ga. 60; Davis v. State, 38 Wis. 487; Douglass v. State, 3 Wis. 820. See "Criminal Law," Dec. Dig. (Key No.) §' 171; Cent. Dig. §§ S22-3U- 9* Douglass V. State, 3 Wis. 820. See "Criminal Law," Dec. Dig. (Key No.) f 171; Cent. Dig. §§ 322-324, 612. 9 5 State V. Snyder, 98 Mo. 555, 12 S. W. 369; Ex parte Tice, 32 Or. 179, 49 Pac. 1038 ; State v. Parish, 43 Wis. 395. A nolle prosequi entered before the commencement of the trial is no bar to a subsequent prosecution. State V. Ingram, 16 Kan. 14; Bacon v. Towne, 4 Cush. (Mass.) 217; State v. Munroe, 26 R. I. 38, 57 Atl. 1057. See "Criminal Law," Dec. Dig. (Key No.) §§ 172, 178; Cent. Dig. §§ 301-303, 326; 327. 702 CONSTITUTIONAL GUAKANTIBS IN CRIMINAL CASES. (Ch. 20 question does not fall within the scope of this work, but some of the instructive cases are referred to in the margin."" The second prosecution must be for the same offense. The offenses charged in the two indictments must be the same both in law and fact. The test for determining their identity is said to be the question whether or not the facts set forth in the second indictment, if proved to be true, would have warranted a conviction under the first indict- ment, or whether or not the facts charged in the second constitute one and the same transaction with that alleged in the first.®' Where an indictment contains several counts, and the prisoner is acquitted on some counts and convicted on others, he cannot be again tried on those counts on which he was acquitted, though, if the conviction is set aside, he may be tried a second time on those counts on which he was at first convicted. °' And where a greater offense includes a lesser one, if the defendant is indicted for the lesser offense and put in jeopardy under such indictment, this v/ill prevent his being afterwards indicted and tried for the major crime."" Thus, where defendant 8 6 People V. Hunckeler, 48 Cal. 331; People v. Cage, 48 Cal. 323, 17 Am. Rep. 436 ; Mixon v. State, 55 Ala. 129, 28 Am. Kep. 605 ; U. S. v. Haskell, 4 Wasli. C. G. 402, Fed. Cas. No. 15,321; Com. v. McCormlck, 130 Mass. 61, 39 Am. Rep. 423 ; Powell v. State, 17 Tex. App. 345 ; Barrett v. State, 35 Ala. 406 ; Benedict v. State, 44 Ohio St. 679, 11 N. E. 125 ; State v. Shaffer, 23 Or. 555, 32 Pac. 545 ; Woodward v. State, 42 Tex. Cr. R. 188, 58 S. W. 135 ; Dreyer v. People, 188 111. 40, 58 N. E. 620, 58 L. B. A. 869 ; Ex parte Glenn (C. C.) Ill Fed. 257 ; Allen v. State, 52 Fla. i, 41 South. 593, 120 Am. St. Rep. 188 ; Vela v. State, 49 Tex. Cr. R. 588, 95 S. W. 529. See "Criminal Law," Dec. Dig. (Key No.) §§ 181-185, 189; Cent. Dig. §§ 330-3U, 372-374. »' McCoy V. State, 46 Ark. 141 ; Roberts v. State, 14 Ga. 8, 58 Am. Dec. 528 ; Nordlinger v. United States, 24 App. D. C. 406, 70 L. R. A. 227 ; O'Don- nell V. People, 110 111. App. 250 ; State v. Switzer, 65 S. C. 187, 43 S. E. 513 ; Wallace v. State, 41 Fla. 547, 26 South. 713 ; Miller v. State, 33 Ind. App. 509, 71 N. B. 248 ; State v. Day, 5 Pennewill (Del.) 101, 58 Atl. 946. A statute providing that a person who has been before convicted of crime shall suffer a severer punishment for a subsequent offense than for a first offense is not invalid, as subjecting him to be twice put in jeopardy for the same offense. Moore v. Missouri, 159 U. S. 673, 16 Sup. Ot. 179, 40 L. Ed. 301. See "Criminal Law," Deo. Dig. (Key 'No.) § 196; Cent. Dig. § S8Jt. 9 8 People v. Dowling, 84 N. T. 478; Johnson v. State, 29 Ark. 31, 21 Am. Rep. 154. Compare Jarvls v. State, 19 Ohio St. 585. See "Criminal Law," Deo. Dig. (Key No.) § 186; Cent. Dig. § 321. 8 8 Roberts v. State, 14 Ga. 8, 58 Am. Dec. 528; Floyd v. State, 80 Ark. 94, 96 S. W. 125 ; People v. McDaniels, 137 Cal. 192, 69 Pac. 1006, 59 L. R. A. 578, 92 Am. St. Rep. 81. See "Criminal Law," Dec. Dig. (Key No.) § 199; Cent. Dig. §§ 366, 386, 381, 389, S9i. §§ 267-269) TWICE in jeopardy. 703 was charged with robbery, committed by taking money from a dwell- ing house, a former acquittal on an indictment for the larceny of the same money is a bar to the prosecution for robbery, because the crime of robbery, as charged, could not have been committed with- out the commission of larceny, as an included, but inferior, offense.^"" In the case of a single criminal act producing several different re- sults, each of which, standing alone and dissociated from the others, would be an indictable offense, the general rule is that each result cannot be considered a distinct crime, but that all are the conse- quences of one criminal act; and hence a conviction or acquittal of the crime, founded upon one of such results, will bar a prosecution for the same crime, founded upon another of such results.^"^ If a verdict against the prisoner is set aside on his motion, or on an ap- peal or writ of error taken by him, or is arrested for fatal errors in the indictment, the protection of former jeopardy does not attach.^"^ Practical Effect. The practical effect of the provision against second jeopardy is not only to save a person from being twice tried for the same offense in distinct proceedings, but also to deny to the prosecution, in crim- inal cases, the right to take an appeal or to move for a new trial, un- less, in the particular state, the constitutional rule has been relaxed 100 state v. Mlkesell, 70 Iowa, 176, 30 N. W. 474. See "Criminal Law," Dec. Dig. (Key No.) §. 202; Cent. Dig. § 396. 101 Hurst V. State, 86 Ala. 604, 6 South. 120, 11 Am. St. Rep. 79. But con- trast People V. Majors, 65 Cal. 138, 3 Pac. 597, 52 Am. Rep. 295, where It was held that the murder of two'persons by the same act constituted two offenses, for each of which a separate prosecution would lie, and a conviction or acquit- tal in one ease would not bar a prosecution in the other. And note that the same act may constitute distinct offenses, one against the United States and the other against a state, or one against the state and the other against a city ; and in this case, prosecution for the one offense is no bar to proceedings for the other. Black v. State, 144 Ala. 92, 40 South. 611 ; State v. Norman, 16 Utah, 457, 52 Pac. 986 ; State v. Muir, 86 Mo. App. 642. But see Com. v. Fuller, 8 Mete. (Mass.) 313, 41 Am. Dec. 509. An acquittal by a military court-martial is no bar to a prosecution for the same act by the proper civil authorities. In re Fair (C. C.) 100 Fed. 149. And it is not putting one twice In jeopardy to punish him for an Indictable statutory offense, though it also constitutes a contempt of court and may be punished as such. In re Chapman, 166 U. S. 661, 17 Sup. Ct. 677, 41 L. Ed. 1154. See "Criminal Law," Dec. Dig. (Key No.) § 200; Cent. Dig. §§ 386^409. 102 Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29; Smith v. State, 41 N. J. Law, 598. See "Criminal Law," Dec Dig. (Key No.) §§ 188-193; Cent. Dig. §§ S72-S79. 704 CONSTITUTIONAL GUARANTIES IN CRIMINAL CASUS. (Ch. 30 SO far as to allow this. And except in cases where the prisoner him- self appeals and a new trial is thereupon ordered, there is no redress for errors or mistakes made in the course of the trial which tell in favor of the defendant, nor any opportunity to correct them. The propriety of allowing to the state the same right of appeal, in these cases, which already exists in favor of the defendant, has been of late years much discussed. Where a court has imposed a sentence of fine and imprisonment, in a case where the statute authorized only a sentence of fine or imprisonment, and the fine has been paid, the court cannot, even during the same term, modify the judgment by imposing imprisonment instead of the former punishment; for this would amount to punishing the defendant twice for the same offense.^"* BAIL. 270. By tlie eighth amendment to the federal constitution, and by similar provisions in the constitutions o£ many of the states, it is provided that excessive bail shall not be required. The constitutions of most of the states provide that all persons shall, before conviction, be admitted to bail, upon giving sufficient sureties, except for capital offenses, where proof of their guilt is evident or the presumption great; and the constitutions of nearly all provide that excessive bail shall not be required. The object of tail is to enable persons charged with criminal offenses to regain their liberty, and at the same time to secure their attendance when they are wanted for trial. To require bail in such a great amount that it would be impossible for the prisoner to obtain it, and thereby to keep him in captivity for perhaps a long time, before his guilt was estab- lished, would be a gross abuse of justice and a grievous oppres- sion.^"* It was to prevent this that the constitutional provision above quoted was adopted. But it will be observed that the provision does not require that all persons, in all circumstances, shall be admitted to bail; but only that if they are allowed to go at large upon bail, the bail required shall not be excessive. There are obviously cases in which bail must be refused, if justice is to be done. And, as we have stated, the right to bail is generally withheld in capital cases 103 Ex parte Lange, 18 Wall. 163, 21 h. Ed. 872. See "Criminal Law," Deo. Dig. (Key No.) § 187; Cent. Dig. §| 362-371, S531. 104 u. S. V. Brawner (D. C.) 7 Fed. 86. See "Criminal Law," Deo. Dig. (Key No.) §§ 50-5Sj Cent. Dig. §§ 209-2^2. § 270) BAIL, 705 where "the proof is evident or the presumption is great." In regard to the meaning of these words, it is said that the proof is evident if the evidence adduced on the application for bail would sustain a ver- dict convicting the prisoner of a capital offense ; but, if the evidence is of less efficacy, bail should be allowed him. In other words, bail is not a matter of right if the evidence is clear and strong, leading a well- guarded and dispassionate judgment to the conclusion that the of- fense has been committed, that the prisoner is the guilty agent, and that if the law be administered he will be capitally convicted.^"' The amount of bail to be required is left to the discretion of the court or magistrate. But if the amount required is excessive, or if an offer of reasonable bail is refused, there is such violation of the prisoner's constittitronal rights as may be inquired into on a writ of habeas cor- pus or certiorari. But the granting or refusing of bail is a matter generally within the sound discretion of the court or magistrate be- low; and the appellate court will not control that discretion unless it has been flagrantly abused.^"* And the action of a judge or magis- trate in accepting or refusing bail is judicial in its nature, and not merely ministerial, and no action will lie against him for refusing to take bail in a case of misdemeanor, even though the sureties tendered are found to have been sufficient, unless actual malice on his part can be shown.^"^ In fixing the amount of bail, though no definite rules can be laid down for all cases, there are certain considerations which should al- ways influence the action of the court. Thus, it is proper to take into account the gravity of the offense charged and the severity of the punishment attached to it, as affecting the likelihood of the pris- oner's fleeing from justice, notwithstanding his being under bail. Again, if there is no reasonable doubt of the guilt of the defendant charged with the commission of a felony, whether capital or not, he ought not to be admitted to bail.^"^ And, finally, whether bail is excessive or not will depend largely upon the pecuniary condition of 10 5 Ex parte Foster, 5 Tex. App. 625, 32 Am. Eep. 577. See "Criminal Law," Dec. Dig. (Key No.) § 43j Cent. Dig. §§ 153-16Jt. loe Lester v. State, 33 Ga. 192. Bee "Bail," Dec. Dig. (Key No.) § J,9; Cent. Dig. § SO4. 107 Linford v. Fitzroy, 18 Law J. Mag. Cas. 108; Evans v. Foster, 1 N. H. 374. See "Judges," Deo. Dig. (Key No.) § 36; Cent. Dig. §§ 165-168. 108 Ex parte Tayloe, 5 Cow. (N. Y.) 39. See "Bail," Dec. Dig. (Key No.) § 42; Cent. Dig. § U8. Bl.Const.L.(3d.Ed.) — 45 706 CONSTITUTIONAL GUARANTIES IN CRIMINAL CASES. (Ch. 30 the accused. A sum which would be trivial to a wealthy man might be oppressive to a poor one.^°* CRUEI. AND UNUSUAl. PUNISHMENTS. 271. The constitutional prohibition against the infliction of crnel and unusual punishments is to he understood as forbidding any crnel or degrading punishment not known to the common law, and probably also any degrading punishments which, in the particular state, had become obsolete when its constitution w^as adopted, and also all punishments which are so dispro- portioned to the offense as to shoch the moral sense of the community.! 10 This prohibition, in the eighth amendment to the federal consti- tution, applies only to the United States and its courts. But most of the states, if not all, have incorporated a similar inhibition in their organic law.^^^ It was intended to exclude all such barbarous pun- ishments as torture, disembowelling, burning, branding, mutilation, the pillory, and the ducking-stool. But it does not apply to the ordi- nary methods of punishment, such as death by hanging, pecuniary fines, imprisonment, disfranchisement, or forfeiture of civil rights.^ 12 109 Ex parte Hutchings, 11 Tex. App. 28; Ex parte Banks, 28 Ala. 89; U. S. V. Lawrence, 4 Cranch, C. O. 518, Fed. Cas. No. 15,577. The officer fixing the amount of bail must necessarily decide in the first Instance what will or will not be excessive bail in each particular case, and the question as to the amount of bail is therefore one for .ludicial decision. Gregory v. State, 94 Ind. 384, 48 Am. Rep. 162. See "Bail," Dec. Dig. (Key No.) § 52; Cent. Dig. I 209. 110 In re Bayard, 25 Hun (N. Y.) 546; McJIahon v. State, 70 Neb. 722, 97 N. W. 1035. See "Criminal Law," Dec. Dig. (Key No.) § 1213; Cent. Dig. §§ 3304-3309. 111 Pervear v. Massachusetts, 5 Wall. 475, 38 L. Ed. 608. See "Criminal Law," Dec. Dig. (Key No.) § 1213; Cent. Dig. § SSOJi. 112 Fine and imprisonment are not cruel or unusual punishments. Ligan v. State, 3 Heisk. (Tenn.) 159. Hard labor In the penitentiary, In addition to the imprisonment, is not a cruel or unusual punishment. Wilson v. State, 28 Ind. 393. A law providing that the keeper of a gambling house "shall be deemed infamous after conviction, and be forever thereafter disqualified from exer- cising the right of suffrage and from holding any office," does not inflict a cruel punishment, within the meaning of the constitution. Harper v. Com., 93 Ky. 290, 19 S. W. 737, 14 Ky. Law Rep. 163. This constitutional provision is not violated by a law requiring the imposition of a heavier punishment on a second or third conviction. McDonald v. Massachusetts, 180 TJ. S. 311, 21 § 271) CRUEL AND UNUSUAL PUNISHMENTS. 707 But the common and usual forms of punishment, not in themselves objectionable under this provision, may be inflicted upon a defendant to such an excessive extent as to become "cruel" punishments. For example, a sentence of imprisonment for five years, and a recog- nizance in the sum of $500 to keep the peace for five years after the expiration of the sentence, upon a conviction for an assault and bat- tery, has been held invalid because excessive.^^* As to the inflic- tion of stripes, the case is not very clear. But it has been held in several cases that whipping is not a cruel or unusual punishment.^^* A law providing that execution of the sentence of death shall be by "causing to pass through the body of the convict a current of elec- tricity of sufficient intensity to cause death," is not obnoxious to this constitutional prohibition. The punishment, death, remains the same ; and the only change is in the manner of its infliction, and this man- ner, though certainly at present "unusual," is not "cruel" within the meaning of the constitution.^^" And in a case where a territorial law enacted that every person guilty of murder should suffer death, but did not prescribe the mode of executing the sentence, and the pris- oner was sentenced to be -shot, it was held that this was not a cruel or unusual punishment. ^^* And the same decision was made in re- gard to a statute which required that a prisoner sentenced to death should be kept in solitary confinement between the time of his sen- tence and the execution.^^' But where cutting off the prisoner's hair is a part of the punishment prescribed for particular oiifenses, and this sentence is imposed upon a Chinaman, it may be a cruel punish- ment as to him, on account of the peculiar social and religious beliefs Sup. Ct. 389, 45 L. Ed. 542. See "Criminal Law," Dec. Dig. (Key t!o.) § 1213; Cent. Dig. §§ 3304-3309. 113 State V. Driver, 78 N. C. 423. But compare People v. Smith, 94 Mich. 644, 54 N. W. 487. See "Criminal Law," Dec. Dig. (Key No.) § 1213; Cent. Dig. §§ 3304-3309. 114 Com. V. Wyatt, 6 Rand. (Va.) 694; Foote v. State, 59 Md. 264. See "Criminal Law," Dec. Dig. (Key No.) § 1213; Cent. Dig. §§ 3304-3309. iiB People V. Kemmler, 119 N. Y. 580, 24 N. E. 9; In re Kemmler, 136 U. S. 436, 10 Sup. Ct. 930, 34 L. Ed. 519; In re Storti, 178 Mass. 549. 60 N. E. 210, 52 h. R. A. 520. See "Criminal Law," Dec. Dig. (Key No.) § 1213; Cent. Dig. §§ 3304-3309. 116 Wilkerson v. Utah, 99 U. S. 130, 25 L. Ed. 345. See "Criminal Law," Dec. Dig. (Key No.) §§ 1213, 1219; Cent. Dig. §§ 3304-3309, 3329, 3332. 117 McElvalne v. Brush, 142 U. S. 155, 12 Sup. Ct. 156, 35 L. Ed. 971. But see Rogers v. Peck, 199 U. S. 425, 26 Sup. Ot. 87, 50 L. Ed. 256. See "Crim- inal Law," Dec. Dig. (Key No.) § 1213; Cent. Dig. §§ 3304-3309. 708 CONSTITUTIONAL GUARANTIES IN CRIMINAL CASES. (Ch. 20 of the people of that race.^^' But a sentence, imposed upon a pris- oner for a violation of a city ordinance, requiring him, on default of payment of his fine, to be put to labor on the public streets or other public works of the city, is not in conflict with the constitution."' In an interesting case in Missouri, the prisoner was convicted of ob- taining $3 under false pretenses, and was sentenced to imprisonment for two years, which was the minimum penalty set by the statute for that offense. But the statute omitted to prescribe any maximum penalty. And it was argued that, under this law, the prisoner might have been sentenced to imprisonment for life, and that such a pun- ishment would have been cruel and unusual. But the court refused to interfere with the sentence on this ground.^^" BILLS OF ATTAINDEB. 272. By the provisions of tlie federal constitution, bills of attainder are forbidden to be passed either by congress or by the sev- eral states. In its strict signification, the word "attainder" means an extinc- tion of civil and political rights ; and its two incidents, forfeiture and corruption of the blood, followed as a necessary consequence, at common law, upon a conviction of a capital crime. A bill of attainder is a legislative decree, directed against a designated person, pro- nouncing him guilty of an alleged crime (usually treason) and passing sentence of death and attainder upon him.^^^ In some cases, where this method of procedure was in use, the sentence pronounced was less severe than the death penalty, and in that case the judgment was denominated a "bill of pains and penalties." But the phrase "bill of attainder" has come to be used in a generic sense, including also a lis Ho Ah Kow V. Nunan, 5 Sawy. 552, Fed. Cas. No. 6,546. See "Criminal Law," Dec. Dig. (Key No.) § 1213; Cent. Dig. §§ 3304-3309; "Municipal Cor- porations," Dec. Dig. (Key No.) § 625; Cent. Dig. § 1379. 119 Ex parte Bedell, 20 Mo. App. 125. See "Criminal Late," Dec. Dig. (Key No.) § 1213; Cent. Dig. §§ SSOJt-3309; "Intoxicating Liquors," Dec. Dig. (Key No.) § 21,2; Cent. Dig. § 361. 120 state V. Williams, 77 Mo. 310. See "Criminal Law," Dec. Dig. (Key No.) § 1213; Cent. Dig. §§ 330^-3309. 121 Cummings v. Missouri, 4 Wall. 277, 18 L. Ed. 356. A resolution of a state senate resulting in the expulsion of a member is not a bill of attainder. French v. Senate of California, 146 Oal. 604, 80 Pac. 1031, 69 L. R. A. 556. See "Constitutional Law," Dec. Dig. (Key No.) §§ 82, 197; Cent. Dig. § 550. § 273) EX POST FACTO LAWS. 709 bill of pains and penalties, and it is in this comprehensive significa- tion that it is used in the federal constitution.^ ^^ L,egislative enact- ments of this character were not at all uncommon in the early days of this country, before the adoption of the constitution. In several cases, during the Revolution, the states enacted statutes which were directed against particular persons by name, and which adjudged them guilty of aiding and adhering to the enemies of the state, and proceeded to a confiscation of such property of theirs as might be found within the Hmits of the state.^" But the prohibition received its most attentive consideration in a group of cases which arose out of a certain act of congress and certain acts of the state legislatures, passed at the close of the civil war, which imposed a test oath of past loyalty to the national government as a condition precedent to the right to enjoy certain civil and political privileges. These stat- utes were held to be ex post facto laws and unconstitutional. And they were also adjudged to be bills of attainder, on the following ground: Since it was certain that there were individuals who would be unable to take the oath prescribed, the legislative action in ques- tion was tantamount to a declaration that those persons were guilty of the crimes alleged, and to a sentence, passed upon them without trial, imposing heavy penalties for their past conduct.^''* EX POST FACTO I.AWS. 273. The enactment of ex post facto lairs is prohibited both to con- gress and to the legislatures of the several states. The term is a technical one, and applies only to penal and criminal pro- ceedings. An ex post facto laiv is one — (a) .Which makes an action done before the passing of the lair, and nrhich ■was innocent when done, criminal, and punishes such action, or (b) Which aggravates a crime, or makes it greater than it nras when committed, or (c) Which changes the punishment and inflicts a greater punish- ment than the law annexed to the crime when it -was com- mitted, or 122 Fletcher v. Peek, 6 Cranch, 138, 3 L. Ed. 162; Cummings v. Missouri, 4 Wall. 277, 18 L. Ed. 356. See "Constitutional Law," Dec. Dig. (Key No.) § 197; Cent. Dig. § 550. 123 See Thompson v. Carr, 5 N. H. oxu. 124 Cummings v. Missouri, 4 Wall. 277, 18 L. Ed. 356; Ex parte Garland, 4 Wall. 333, 18 L. Ed. 366 ; Pierce v. Carskadon, 16 Wall. 234, 21 L. Ed. 276. See "Constitutional Law," Dec. Dig. (Key No.) § 199; Cent. Dig. § 565. 710 CONSTITUTIONAL GUARANTIES IN CRIMINAL CASES. (Ch. 20 (d) Which alters the legal rules o£ evidence, and receives less or dif- ferent testimony than the law required at the time of the com- mission of the offense, in order to convict the offender.126 An ex post facto law is necessarily, as the words imply, a retro- active law. If any law is intended to operate only upon future ac- tions or future trials, it cannot be called ex post facto.^^° And again, the term is restricted to penal and criminal proceedings which affect life or liberty or may impose punishments or forfeitures. It has no applicability to purely civil proceedings which affect private rights only, although such proceedings, for their retroactive effect, may be unlawful.^^^ The constitutional provision, it should be observed, ap- i2 5,Oalder v. Bull, 3 Dall. 390, 1 L. Ed. 648; Goode v. State, 50 Fla. 45, 39 South. 461; City of Louisville v. Roberts, 105 S. W. 431, 32 Ky. Law Rep. 182 ; State v. Michel, 121 La. 374, 46 South. 430 ; State v. Fourchy, 106 La. 743, 31 South. 325; Barton v. State (Miss.) 47 South. 321; People v. John- son, 44 Misc. Rep. 550, 90 N. Y. Supp. 134 ; People v. Zito, 237 111. 434, 86 N. E. 1041. To render a statute unconstitutional as being ex post facto, it is not necessary to show that it must be detrimental to all persons charged with of- fenses; it is enough if it materially alters their- condition in a manner which may be detrimental to some. In re Murphy (C. C.) 87 Fed. 549. But any law which distinctly mollifies the rigor of the law cannot be regarded as ex post facto. State v. Richardson, 47 S. O. 166, 25 S. E. 220, 35 L. R. A. 238. See "Vomtitutional Law," Dec. Dig. (Key No.) §§ 197-20S; Gent. Dig. §§ 550-590. i2ftKrIng V. Missouri, 107 U. S. 221, 2 Sup. Ct. 443, 27 L. Ed. 506. A gen- eral law for the punishment of offenses which endeavors, by retroactive opera- tion, to reach acts before committed, and also provides a like punishment for the same acts in future, is void in so far as it is retroactive, but valid as to future cases within the legislative control. Jaehne v. New Tork, 128 U. S. 189, 9 Sup. Ct. 70, 32 L. Ed. 398. See "Constitutional Law," Dec. Dig. (Key No.) § 197; Cent. Dig. § 550. 127 Baltimore & S. R. Co. v. Nesblt, 10 How. 395, 13 L. Ed. 469; Locke v. New Orleans, 4 Wall. 172, 18 L. Ed. 334 ; Southwick v. Southwick, 49 N. Y. 510 ; Rich v. Flanders, 39 N. H. 304 ; De Pas v. Bidwell (C. O.) 124 Fed. 615 ; Randel v. Shoemaker, 1 Har. (Del.) 565 ; Pittsburgh, C, C. & St. L. By. Co. V. Lighthelser, 168 Ind. 438, 78 N. E. 1033; Leahart v. Deedmeyer, 158 Ala. 295, 48 South. 371. Laws providing for the commitment and detention of the insane are not penal in any sense of the word, and hence cannot come under the description of ex post faoto laws. State v. Snell, 49 Wash. 177, 94 Pac. 926. And a statute providing for the revocation in a "civil action" and under rules applicable to civil proceedings, of a physician's license for fraud in its procurement occurring prior to the enactment of the law, is not an ex post facto law. State v. Schaeffer, 129 Wis. 459, 109 N. W. 522. But a city ordi- nance providing for the assessment and taxation of omitted property. In so far as it provides a penalty, is void as an ex post facto law. Muir's Adm'r v. City of Bardstown, 120 Ky. 739, 87 S. W. 1096. And a person, cannot be con- § 273) EX POST FACTO LAWS. 711 plies not only to the statutes of a state, but also to the ordinances of its municipal corporations.^^* As a general rule, statutes which are confined in their operation to the regulation of courts, their jurisdiction, and criminal procedure, or which merely change the mode of trial of offenses, without affect- ing the nature of the offense, the evidence required, or the punish- ment, are not ex post facto, even as retroactively applied, unless they plainly alter the situation of the accused to his disadvantage. ^^^ For instance, a statute giving to justices of the peace jurisdiction to try persons for offenses previously triable only in the county courts, though applicable to prior offenses, being remedial only, is not an ex post facto law.^'" The same is true of a law which confers ap- pellate jurisdiction of a cause upon a division of the supreme court less in numbers and different in personnel from the court as organ- ized when the crime was committed.^*^ And a law which changes the qualifications of grand and petit jurors, requiring that they shall be qualified electors and able to read and write, is applicable to the trial of a prosecution for an offense committed before its passage,^'- though it is otherwise as to a statute which dispenses with a jury altogether, or which provides that it may be composed of, or its ver- dict rendered by, a less number than twelve men.^^^ vlcted under a law making a principal liable for the act of his agent, for an act done before the law went into operation. State v. Bond, 49 N. C. 9. See "Constitutional Law," Dec. Dig. (Key No.) § 199; Cent. Dig. §§ 551-569, 576- 583. 128 People V. Fire Department of City of Detroit, 31 Mich. 458. See "Con- stitutional Law," Dec. Dig. (Key No.) §§ 198-203; Cent. Dig. §§ 576-590; "Beneficial Associations," Cent. Dig. § 24- 129 City Council of Anderson v. O'Donnell, 29 S. C. 355, 7 S. E. 523, 1 h. R. A. 632, 13 Am. St. Rep. 728 ; State v. Carter, 33 La. Ann. 1214 ; People v. Mortimer, 46 Gal. 114; Ex parte Boyd, 50 Tex. Cr. R. 309, 96 S. W. 1079; Mallett V. North Carolina, 181 U. S. 589, 21 Sup. Ct. 730, 45 L. Ed. 1015; State V. Pell, 140 Iowa, 655, 119 N. W. 154. See "Constitutional Law," Dec. Dig. (Key No.) §§ 198-203; Cent. Dig. §§ 576-590. 130 state V. Welch, 65 Vt. 50, 25 Atl. 900. And see Com. v. Phillips, 11 Pick, (Mass.) 28; State v. Sullivan, 14 Rich. Law (S. C.) 281. And see Thompson V. Missouri, 171 U. S. 380, 18 Sup. Ct. 922, 43 L. Ed. 204. See "Constitutional Law," Dec. Dig. (Key No.) § 199; Cent. Dig. § 578. 181 Duncan v. Missouri, 152 U. S. 377, 14 Sup. Ct. 570, 38 L. Ed. 485. See "Constitutional Law," Dec. Dig. (Key No.) § 199; Cent. Dig. § 578. 182 Gibson v. Mississippi, 162 U. S. 565, 16 Sup. Ct. 904, 40 L. Ed. 1075. See "Constitutional Law," Dec. Dig. (Key No.) § 199; Cent. Dig. § 582. 188 Thompson v. Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061 ; State T. Baker, 50 La. Ann. 1247, 24 South. 240, 69 Am. St. Eep. 472 ; State v. Ar- 712 CONSTITUTIONAL GUARANTIES IN CRIMINAL CASES. (Ch. 30 Nor i& there any valid objection, on this ground, to a provision in a state constitution that offenses previously required to be prose- cuted by indictment may be prosecuted by information or by indict- ment, as shall be prescribed by law, or one which enacts that no grand jury shall be drawn or summoned in any county unless the superior judge thereof shall so order. These provisions, as applied to offenses committed prior to their adoption, cannot be said to be ex post facto.^'* And a law authorizing the conviction of a de- fendant "of any offense the conimission of which is necessarily in- cluded in that charged" is not ex post facto, as applied to a case where the offense was committed and the indictment found before the law went into effect, although such conviction was not authorized by the law in force at the time the crime, was done.^'° A statute reducing the number of peremptory challenges to jurors allowed to defendants in criminal prosecutions is not ex post facto as to the trial of a crime committed before the act was passed.^^" And a statute which pro- vides that, "in all questions affecting the credibility of a witness, his general moral character may be given in evidence," although it in- troduces a new rule of evidence, cannot be said to alter the situation of the accused to his disadvantage, and therefore is not an ex post facto law.^'^ But a law requiring the defendant in prosecutions un- der the revenue laws to produce his books and papers in evidence, and making his refusal to do so equivalent to a confession of the facts the government expects to prove by them, is ex post facto as applied to past acts and transactions.^^* doin, 51 La. Ann. 169, 24 South. 802, 72 Am. St. Rep. 454. But compare State V. Caldwell, 50 La. Ann. 666, 23 South. 869, 41 L. R. A. 718, 69 Am. &t. Rep. 465. See "Constitutional Law," Dec. Dig. (Key THo.) § 199; Cent. Dig. % 582. 13 4 State v. Kyle, 166 Mo. 287, 65. S. W. 763, 56 L. R. A. 115; State v. Parks, 165 Mo. 496, 65 S. W. 1132; Lybarger v. State, 2 Wash. St. 552, 27 Pac. 449, 1029. See "Constitutional Law," Deo. Dig. (Key No.) § 199; Cent. Dig. § 579. 13 5 state V. Johnson, 81 Mo. 60; Com. v. Kelley, 184 Mass. 320, 68 N. E. 346. But see People v. Cox, 67 App. Div. 344, 73 N. Y. Supp. 774. See "Con- stitutional Law," Dec. Dig. (Key No.) § 200; Cent. Dig. § 57^. 13 6 South V. State, 86 Ala. 617, 6 South. 52; State v. Duestrow, 137 Mo. 44, 38 S. W. 554. See "Constitutional Law," Dec. Dig. (Key No.) § 139; Cent. Dig. § 582. 137 Robinson v. State, 84 Ind. 452. But see State v. Dowden, 137 Iowa, 573, 115 N. W. 211. See "Constitittional Law," Dec. Dig. (Key No.) § 199; Cent. Dig. § 581. 13 8 tJ. S. V. Hughes, 8 Ben. 29, Fed. Cas. No. 15,416. See "Constitutional Law," Dec. Dig. (Key No.) § 199; Cent. Dig. § 581. § 273) EX POST FACTO LAWS. 713 If the legislature repeals the statute of limitations with respect to criminal prosecutions, or extends the time previously limited for such prosecutions, the new rule cannot constitutionally apply to any offense previously committed and as to which the period prescribed by the law in force at the time of its commission has already run. This would be, in such application, an ex post facto law; because an act condoned by the expiration of the statute of limitations is no longer a punishable offense.^'* A law which aggravates the punishment for an act already com- mitted is ex post facto; but one which changes the punishment in such a manner that the new penalty is equal to or less than that pre- scribed when the act was done, but not greater, is not thus objec- tionable. Any change in the law which remits a separable portion of the former penalty, or substitutes a punishment which is clearly less severe, or otherwise reduces or mitigates the consequences of a con- viction, or which introduces a change in those matters which are referable only to prison discipline or penal administration, may validly have a retrospective operation.^*" A statute which, without affect- ing the crime or its punishment, prescribes the hour, the place, and the manner in which death sentences shall be carried out, and the number of persons who may be present, is not ex, post facto as to past oflenses.^*^ Since the penalty of death is almost universally regarded as the extreme limit of punishment, it is generally con- ceded that a law which substitutes any other degree or kind of pun- ishment, even in relation to past offenses, is not ex post facto.**^ But even the death penalty can be added to. Thus, a statute was en- acted providing that a person sentenced to death should be kept in solitary confinement until the time of execution, and also that he 139 Com. V. Duffy, 96 Pa. 506, 42 Am. Rep. 554. Compare State v. Moore, 42 N. J. Law, 208. See "Constitutional Law," Dec. Dig. (Key No.) § 199/ Vent. Dig. §' 516. 140 Hartung v. People, 22 N. Y. 95, 105; Hair v. State, 16 Neb. 601, 21 N. W. 464 ; People v. Hayes, 140 N. T. 484, 35 N. E. 951, 23 L. R. A. 830, 37 Am. St. Rep. 572. Bee "Constitutional Law," Deo. Dig. (Key No.) § 203; Cent. Dig. § 585. 141 Holden v. Minnesota, 137 U. S. 483, 11 Sup. Ct. 143, 34 L. Ed. 734; Peo- ple V. Nolan, 115 N. Y. 660, 21 N. E. 1060. See "Constitutional Law," Deo. Dig. (Key No.) § 203; Gent. Dig. § 5S8. 14 2 Com. V. Gardner, 11 Gray (Mass.) 438; Com. v. Wyman, 12 Cush. (Mass.) 237 ; State v. Williams, 2 Rich. Law (S. C.) 418, 45 Am. Dec. 741 ; McGuire v. State, 76 Miss. 504, 25 South. 495. See "Constitutional Law," Dec. Dig. (Key No.) § 203; Cent. Dig. § 585. 714 CONSTITUTIONAL GUARANTIES IN CRIMINAL CASES. (Ch. 20 should not be apprised of the time when the execution was to take place. This law was adjudged ex post facto and unconstitutional as applied to a murderer whose crime was committed before the pas- sage of the act."' But a statute is not unconstitutional which, in providing for the punishment of future offenses, authorizes the of- fender's conduct in the past to be taken into account, and the pun- ishment to be graduated accordingly; that is, imposing a more se- vere sentence upon a second conviction for the same kind of offense."* But where the law, in force at the time of the commission of the oifense, imposed upon the jury the duty of fixing the penalty, within certain limits, by their verdict, this confers upon the prisoner a val- uable right which cannot constitutionally be taken away by retro- active legislation.^*" And a law providing that cumulative terms of imprisonment, adjudged at the same term of court, shall be so tacked that each subsequent term shall begin at the expiration of the pre- ceding one, cannot be applied to ofifenses committed before the stat- ute, because, being more onerous than the pre-existing law, such ap- plication would make it ex post facto."° 1*3 Ex parte Medley, 134 U. S. 160, 10 Sup. 384, 33 h. Ed. 835. A law add- ing to the penalty of death Imprisonment at hard labor until the governor shall fix the day for the execution (which may he a year from the sentence) is ex post facto as applied to past offenses. In re Petty, 22 Kan. 477. See Rooney v. North Dakota, 196 U. S. 319, 25 Sup. Ct. 264, 49 L. Ed. 494; In re Storti, 180 Mass. 57, 61 N. E. 759. See "Constitutional Law," Dec. Dig. (Key No.) § 203; Cent. Dig. § 588. 11* In re Ross, 2 Pick. (Mass.) 165; People v. Butler, 3 Cow. (N. T.) 347; Com. V. Graves, 155 Mass. 163, 29 N. E. 579, 16 L. R. A. 256 ; State v. Woods, 68 Me. 409; McDonald v. Massachusetts, ISO U. S. 311, 21 Sup. Ct. 389, 45 L. Ed. 542 ; State v. Dowden, 137 Iowa, 573, 115 N. W. 211 ; State of Iowa V. Jones (D. C.) 128 Fed. 626. A law providing for the punishment of "habitual criminals" Is not ex post facto. State v. Le Pitre, 54 Wash. 166, 103 Pac. 27. See "Constitutional Law," Deo. Dig. (Key No.) § 203; Cent. Dig. §§ 584-590. 145 Marion v. State, 16 Neb. 349, 20 N. W. 289. But where the statute, at the time the crime was committed, provided that juries should be judges of the law, and this is repealed before the trial, there is no constitutional wrong in applying the new rule to the case at bar. Marion v. State, 20 Neb. 233, 29 N. W. 911, 57 Am. Rep. 825. See "Constitutional Law," Dec. Dig. (Key No.) § 199; Cent. Dig. § 58Z. "6 Hannahan v. State, 7 Tex. App. 664. On the validity of the "indeter- minate sentence" laws, as viewed in the light of this constitutional provision, see In re Murphy (C. O.) 87 Fed. 549 ; Davis v. State, 152 Ind. 34, 51 N. B. 928, 71 Am. St. Rep. 322 ; State v. Tyree, 70 Kan. 203, 78 Pac. 525 ; Murphy V. Com., 172 Mass. 264, 52 N. E. 505, 43 L. R. A. 154, 70 Am. St. Rep. 266; § 274) SUSPENSION OF HABEAS C0KPU8. 715 A statute establishing a test oath of past loyalty to the govern- ment, and making the taking of it a condition precedent to the right to hold public office, serve as a juror, practice as an attorney, or act as a professor, teacher, or clergyman, is unconstitutional and void, as partaking of the nature both of bills of attainder and ex post facto laws. The reason is that such acts impose a punishment with- out trial ; they make that a crime which was not so before ; and they change the rules of evidence by shifting the burden of proof upon the person accused.^*'' If an extradition treaty is given a retro- active effect, so as to allow of the extradition of a criminal who had taken refuge in this country before the treaty, he cannot object to it on the ground of its being ex post facto.^** SUSPENSION OF HABEAS CORPUS. S74. By tbe constitution of the United States, as well as by tlie con- stitntions of nearly all the states, it is provided that the priv- ilege of the -writ of habeas corpus shall not be suspended, un- less ivhen, in cases of rebellion or invasion, the public safety may require it. The writ here referred to is the writ of "habeas corpus ad subjici- endum," which is directed to any person detaining another, and com- manding him to produce the body of the prisoner (or person detained) with the day and cause of his caption and detention, to do, submit to, and receive whatsoever the judge or court awarding the writ shall consider in that behalf.^*^ This writ, says Story, "is justly esteemed the great bulwark of personal liberty, since it is the appropriate rem- edy to ascertain whether any person is rightfully in confinement or not, and the cause of his confinement, and if no sufficient ground of detention appears, the party is entitled to his immediate discharge." ^^'' "In England, the benefit of it was often eluded prior to the reign of People V. Dane, 81 Mich. 36, 45 N. W. 655; In re Lambrecht, 137 Mich. 450, 100 N. W. 606; People v. Johnson, 44 Misc. Kep. 550, 90 N. T. Supp. 134; s. c, 114 App. Div. 876, 100 N. Y. Supp. 256. See "Constitutional Laic," Dec. Dig. (Key No.) § 203; Cent. Dig. §§ 584-590. 147 Cummings v. Missouri, 4 Wall. 277, 18 L. Ed. 356; Ex parte Garland, 4 Wall. 333, 18 L. Ed. 366 ; Pierce v. Carskadon, 16 Wall. 234, 21 L. Ed. 276. See "Constitutional Law," Dec. Dig. (Key No.) § 190; Cent. Dig. § 565. 1*8 In re De Giacomo, 12 Blatchf. 391, Fed. Cas. No. 3,747. See "Consti- tutional Law," Dec. Dig. (Key No.) § 199; Cent. Dig. § 568. 148 3 Bl. Comm. 131. *6 2 Story, Const. § 1339. 716 CONSTITUTIONAL GUARANTIES IN CRIMINAL CASES, (Ch. 20 Charles the Second, and especially during the reign of Charles the First. These pitiful evasions gave rise to the famous Habeas Corpus Act of 31 Car, II. c. 2, which has been frequently considered as^ another Magna Charta in that kingdom, and has reduced the general method of proceedings on these writs to the true standard of law and liberty. That statute has been, in substance, incorporated into- the jurisprudence of every state in the Union, and the right to it has- been secured in most, if not all, of the state constitutions by a pro- vision similar to that existing in the constitution of the United States." "^ The privilege of the writ is not usually suspended except when mar- tial law has been declared in a particular place or district. The ef- fect of its suspension is to make it possible for military commanders- or other officers to cause the arrest and detention of obnoxious or suspected persons, without any regular process of law, and to deprive- those persons of the right to an immediate hearing and to be dis- charged if the cause of their arrest is found to be unwarranted by law. It seems to be now settled (though not without disputes which are- of considerable historical interest) that the power to suspend the writ, under the federal constitution, in the case of rebellion or invasion, is confided to congress alone; that it is the right and duty of that body to judge when the exigency has arisen to justify this step; and that it does not belong to the executive branch of the government either to so judge or to take the responsibility of suspending the writ^ unless under an authorization from congress. DEFINITION OF TREASON. 275. Convictions and punishments for constructive treason are pre-^ vented by the definition of treason found in the federal con- stitution, 276, According to that definition, treason against the TTnited States consists only in levying war against them, or in adhering to- their enemies, giving them aid and comfort, 1B12 Story, Const. § 1341. While It Is competent for the legislature of a state to regulate and reasonably restrict the privilege of the writ of habeas corpus, it cannot wholly deprive the supreme court, in the exercise of Its original jurisdiction, of its constitutional right to issue the writ. Carruth v. Taylor, 8 N. D. 166, 77 N. W. 617. See "Habeas Corpus," Dec. Dig. (Key No.)' §§ 2, Us Cent. Dig. §§ 2, S3. ^§ 275-277) DEFINITION OF TREASON, 717 .277. There may also lie treason against a particular state, defined and punished as a, crime by its laws; and the 8am.e acts do not necessarily constitute treason against the United States also. That clause of the federal constitution which defines the crime of treason, and prescribes the proof required to sustain a conviction, was intended as an additional safeguard against tyranny and injus- tice. It is in the following words: "Treason against the United States shall consist only in levying war against them, or in adhering ±o their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." Similar provisions have been adopted in the constitutions of many of the states. "By the ancient common law, it was left very much to discretion to determine what acts were and were not treason; and the judges •of those times, holding office at the pleasure of the crown, became but too often instruments in its hands of foul injustice. At the in- stance of tyrannical princes, they had abundant opportunities to create •constructive treasons; that is, by forced and arbitrary constructions, to raise offenses into the guilt and punishment of treason which were •not suspected to be such. The grievance of these constructive trea- sons was so enormous, and so often weighed down the innocent and the patriotic, that it was found necessary, as early as the reign of Edward III., for parliament to interfere and arrest it, by declaring and defining all the different branches of treason. This statute has ever since remained the pole-star of English jurisprudence on this ■subject. * * * It was under the influence of these admonitions, furnished by history and human experience, that the convention •deemed it necessary to interpose an impassable barrier against ar- bitrary constructions, either by the courts or by congress, upon the crime of treason." ^°^ To constitute this specific crime, "war must be actually levied against the United States. However flagitious may be the crime Of ■conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war and actually to levy war are distinct offenses. The first must be brought into open action by an assemblage of men for a purpose treasonable in itself, •or the fact of levying war cannot have been committed. The actual .enlistment of men to serve against the government does not amount 152 2 Story, Const. § 1799. 718 CONSTITUTIONAL GUARANTIES IN CRIMINAL CASES. (Ch. 20 to levying war. It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his. country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors." "* There may also be treason against a particular state, defined and punished as a crime by its laws. And treason against a state is not necessarily at the same time treason against the United States. Trea- son may be committed against a state by opposing its laws and forci- bly attempting to overturn or usurp the government. And conversely,, treason against the United States is not an offense against the laws of a particular state. It is a crime which is exclusively diretted against the national government and exclusively cognizable in ills courts.^"* COBBUFTION OF BIiOOD AND rOBFEITUBE. 278. The constitution of the United States provides that "no attain- der of treason shall xrorlt corruption of blood, or forfeiture escept during the life of the person attainted." And the con- stitutions of nearly all the states provide generally that no conviction shall work corruption of blood or forfeiture of es- tates, though in a few, it seems, there may still be a forfei- ture during the life of the person convicted. Soon after the adoption of the federal constitution, congress passed an act declaring that no conviction or judgment, for any capital or other offense, should work corruption of blood or any forfeiture of estate.^°^ But in 1861, at the beginning of the civil war, new stat- utes for the punishment of treason were enacted, and these provided for the confiscation of the property of persons in rebellion against the government. But a question having been made, as to whether 163 Ex parte Bollman, 4 Crainch, 75, 126, 2 L. Ed. 554. See, also, U. S. v.. Hoxie, 1 Paine, 265, Fed. Cas. No. 15,407 ; U. S. v. Hanway, 2 Wall. Jr. 139, Fed. Cas. No. 15,299 ; U. S. v. Insurgents, 2 Dall. 335, Fed. Cas. No. 15,443 ; U. S. V. Mitchell, 2 Dall. 348, Fed. Cas. No. 15,788. See "Treason," Deo. Dig. (Key No.) §§ 1-7; Gent. Dig. §§ J-7. 104 People V. Lynch, 11 Johns. (N. T.) 549; Eespublica v. Carlisle, 1 Dall. 35, 1 L. Ed. 26. See "Treason," Dec. Dig. (Key No.) § 4; Gent. Dig. § 4. lOB Rev. St. U. S. § 5326 (Act April 30, 1790 [U. S. Comp. St. 1901, p. 3622]). § 278) COKEUPTION OF BLOOD AND FOKFEITURB. 719 the fee in the realty of such persons might not be confiscated, it was expressly provided in the confiscation acts that no punishment or pro- ceedings should be construed to work a forfeiture of the real estate of the offender, longer than for the term of his natural life."' In English law, corruption of blood was the consequence of at- tainder. It meant that the attainted person could neither inherit lands or other hereditaments from his ancestor, nor retain those he already had, nor transmit them to any heir by descent, because his blood was considered in law to be corrupted. This was abolished by St. 33 & 34 Vict. c. 23, and is unknown in America. In England, if a person is outlawed for treason, his lands are for- feited to the crown. If he is outlawed for felony, he forfeits to the crown all his goods and chattels, real and personal, and also the profits of his freeholds during his life, and after his death, the crown is entitled to his freeholds for a year and a day, with the right of com- mitting waste. Formerly, a conviction for any kind of felony caused a forfeiture of goods and chattels, both real and personal, but this has been abolished by the St. 33 & 34 Vict. c. 23. This statute pro- vides that no conviction, judgment, or sentence for treason or felony- shall work corruption of blood or forfeiture. But it leaves the old law of outlawry for treason and felony, with its consequences, un- touched.^"^ 1B6 See 2 Story, Ctonst. § 1300, note; Bigelow v. Forrest, 9 Wall. 339, 19 TJ. Ed. 696 ; Day v. Micou, 18 Wall. 156, 21 L. Ed. 860 ; Wallach v. Van Kiswlck, 92 U. S. 202, 23 L. Ed. 473; New York Fire Department v. Kip, 10 Wend. (N. X.) 266. See "War," Dec. Dig. (Key No.) § 29; Cent. Dig. §§ 186-205. 10 7 See 4 Stepli. Oomm. (10th Ed.) 477; Williams, Real Prop. 126. 720 LAWS IMPAIRING THE OBLIGATION OF CONTKACTS. (Ch, 21 CHAPTER XXI. LAWS IMPAIRING THE OBLIGATION OF OONTRAOTS. 279. Constitutional Provisions. 280. The 'Law Impairing the Contract. 281. The Obligation. 282. The Impairment of the Contract. 283-285. What Contracts are Protected. 286. Limitations on Power of Legislature to Contract 287-291. Charters as Contracts. 292-293. Exemption from Taxation. 294. Laws AfCectlng Remedies on Contracts. CONSTITUTIONAL PROVISIONS. 279. The federal constitution provides that no state shall pass any lair impairing the obligation of contracts. And the consti- tutions of many of the states impose the same restraint upon their legislatures. The causes for the introduction of this clause into the constitution of the United States are to be found in the financial condition of the country at the close of the revolutionary war, and the disposition of the states, at that time, with reference to the enforcement of public and private obligations. It was much to be apprehended that they would repudiate their debts, unless restrained by some such provi- sion of the paramount law. There was also a strong desire to issue paper money and make it circulate, even when that involved the dis- charge of previous contracts in an almost worthless currency. Fur- ther, the various states were much inclined to make such liberal pro- vision for the relief and encouragement of the debtor class as would result in great injury and detriment to the class of creditors, and to the serious impairment of public and private credit. The means adopted to check these tendencies was the prohibition upon state action which we are about to consider. That it has been beneficent in its effects cannot be doubted. But it has given rise to an amount of litigation, and has involved the courts in a succession of adjudications, which are not equalled by those growing out of any other clause of the con- stitution, unless it may be that which gives to congress the power to regulate commerce. This prohibition, it will be noticed, is directed § 2S0) THE LAW IMPAIRING THE CONTRACT. 721 only against the states, and there is no other clause in the consti- tution laying a like inhibition upon congress. It follows, therefore, that if congress should pass a law, falling within the scope of its jurisdiction, and not obnoxious to any other prohibition of the con- stitution, the courts would be obliged to sustain it, notwithstanding its effect might be to impair the obligation of existing public or pri- vate contracts. The injustice of such an act would not be sufficient ground for adjudging it unconstitutional. And in fact, such con- sequences have attended several of the acts of congress, such as the legal tender law and the various statutes of bankruptcy, but their constitutionality has not been questioned on that ground.'^ But it has been held that the legislature of a territory has no more power to pass a law impairing the obligation of contracts than is possessed by the legislature of a state.^ THi: LAW IMPAIRING THE CONTRACT. 280. The prohibition against impairing the obligation of contracts ap- plies not only to the ordinary statutes of the state, and the or- dinances of its mnnicipalities, but also to any clause in its con- stitution, or any amendment thereto, which produces the for- bidden effect. A provision in a state constitution, or an amendment thereto, is a "law" within the meaning of this clause. The federal constitution is the supreme law of the land, and its prohibitions upon state action ap- ply just as much to the people of the state, when making or amend- ing their constitution, as to their representatives sitting in the legisla- ture to make ordinary laws. Hence if a constitutional provision or amendment impairs the obligation of contracts, it is void.^ But the 1 Hepburn v. Griswold, 8 Wall. 637, 19 L. Ed. 513 ; Gunn v. Barry, 15 Wall. 610, 21 L. Ed. 212; Mitchell v. Clark, 110 U. S. 633, 4 Sup. Ct. 170, 312, 28 li. Ed. 279; Evans v. Eaton, Pet. 0. C. 322, 337, Fed. Cas. No. 4,559; Hopkins v. Jones, 22 Ind. 310; McFaddin v. Evans-Snider-Buel Co., 185 U. S. 505, 22 Snp. Ct. T58, 46 L. Ed. 1012 ; De Ferranti v. Lyndmark, 30 App. D. O. 417 ; Ansley v. Ainsworth, 4 Ind. T. 308, 69 S. W. 884. See "Bankruptcy," Cent. Dig. §§ 1, 656; "Constitutional Law," Dec. Dig. (Key No.) § 113; Cent. Dig. § 272. 2 Morton v. Sharkey, McCahon (Kan.) 535 ; Ruggles v. Washington County, 3 Mo. 496. See "Constitutional Law," Dec. Dig. (Key No.) § 113; Cent. Dig. i 271. 3 New Orleans Gaslight Co. v. Louisiana IJight & Heat Producing & Mfg. Co., 115 U. S. 650, 6 Sup. Ot. 252, 29 L. Ed. 516 ; Delmas v. Merchants' Mut Bi-.Const.Ij.(3d.Ed.) — 46 722 LAWS IMPAIRING THE OBLIGATION OF CONTRACTS. (Ch. 21 prohibition is directed against the legislative action of the state (whether by the legislature or by a constitutional convention) and not against the determinations of its judicial department. The obligation of the con- tract must have been impaired by some law, that iSj some constitutional provision or statute ; but a decision of a court is not a "law," and a change of judicial decisions is not obnoxious to this constitutional prohibition, though it may invalidate contracts previously sustained.* But a municipal ordinance or resolution of a city council is a law of the state, within the meaning of this clause." And the prohibition against "passing" any law impairing the obligation of contracts equally forbids a state to enforce as a law any enactment of that character,, from whatever source originating. Hence an enactment of the "Con- federate States,'' enforced as a law of one of the states composing that confederation, sequestrating a debt owing by one of its citizens to a. citizen of a loyal state as an alien enemy, was void for this reason." THE OBLIGATION. 281. Tlie obligation of a contract is that dnty of performing the con- tract, according to its terms and intent, vhich the lav rec- ognizes and enforces. Ins. Co., 14 Wall. 661, 20 L. Ed. 757 ; Dodge v. Woolsey, 18 How. 331, 15 L. Ed. 401; Gunn v. Barry, 15 Wall. 610, 21 L. Ed. 212; City of Los Angeles V. Los Angeles City Water Co., 177 U. S. 558, 20 Sup. Ct. 736, 44 L. Ed. 886 ; Jacoway v. Denton, 25 Ark. 625. See "Constitutional Law," Dec. Dig. (Key' No.) § 115; Cent. Dig. § 27.5. 4 National Mut. Bldg. & Life Ass'n v. Brahan, 193 U. S. 635, 24 Sup. Ct. 532, 48 L. Ed. 823 ; New Orleans Waterworks Co. v. Louisiana Sugar Refin- ing Co., 125 U. S. 18, 7 Sup. Ct. 741, 31 L. Ed. 607; Mississippi & M. R. Co. V. McClure, 10 Wall. 511, 19 L. Bd. 997; Swanson v. Ottumwa,, 131 Iowa, 540, 106 N. W. 9, 5 L. R. A. (N. S.) 860 ; King v. Phoenix Ins. Co., 195 Mo. 290, 92 S. W. 892, 113 Am. St. Rep. 078 ; Shepherd's Point Land Co. V. Atlantic Hotel, 134 N. C. 397, 46 S. E. 748; Storrie v. Cortes, 90 Tex. 283, 38 S. W. 154, 35 L. R. A. 666. But compare Union Bank v. Board of Com'rs- (C. O.) 90 Fed. 7 ; Mason y. A. E. Nelson Cotton Co., 148 N. C. 492, 62 S. E. 625. 18 L. R. A. (N. S.) 1221, 128 Am. St. Rep. 635 ; Thomas v. State, 76 Ohio- St. 341, 81 N. B. 437, 10 L. R. A. (N. S.) 1112, 118 Am. St. Rep. 884. See "Con- stitutional Law," Dec. Dig. (Key No.) § 116; Cent. Dig. § 278. 6 Des Moines City R. Co. v. Des Moines (C. C.) 151 Fed. 854 ; Iron Moun- tain R. Co. V. Memphis, 96 Fed. 113, 37 C. C. A. 410 ; Neill v. Gates, 152 Mo. 585, 54 S. W. 460. See "Constitutional Law," Dec. Dig. (Key No.) § 115; Cent. Dig. § 275. 8 Williams v. BrufEy, 96 U. S. 176, 24 L. Ed. 716. See "Constitutional Law,'" Cent. Dig. § 27i- § 282) THE IMPAIRMENT OF THE CONTRACT. 723 For judicial purposes, and in the constitutional sense, the "obligation" of a contract is that duty of performing it which the law recognizes and enforces.'' "The obligation of a contract, in the constitutional sense, is the means provided by law by which it can be enforced, and by which the parties can be obliged to perform it. Whatever legislation lessens the efficacy of these means impairs the obligation. If it tends to postpone or retard the enforcement of the contract, the obligation of the latter is to that extent weakened." * THE IMPAIRMENT OF THE CONTRACT. 282. A law impairs the obligation of contracts and is void if it— (a) Freclndes a recovery for 'breach of the contract. (b) Excuses one of the parties from performing it. (c) Renders the contract invalid. (d) Puts new terms into the contract. (e) Enlarges or abridges the intention of the parties. (f ) Postpones or accelerates the time for performance of the con- tract. (g) Interposes such obstacles to its enforcement as practically to annul it. Any statute is unconstitutional, as impairing the obligation of con- tracts, which introduces a change into the express terms of the con- tract, or its legal construction, or its validity, or its discharge, or (within certain limits to be presently noticed) the remedy for its en- forcement. The extent of the change is not material ; any impairment of the contract is unlawful. "This is not a question of degree or manner or cause, but of encroaching in any respect on its obligation, dispensing with any part of its force." * Hence there is an impairment of the contract if either party to it is absolved by law from performance of it,^° or is permitted to discharge 7 Black, Const. Prohib. § 139 ; Story, Confl. Laws, § 266 ; Johnson v. Dun- can's Syndics, 3 Mart. (O. S., I>a.) 530, 6 Am. Dec. 675; Auld v. Butcher, 2 Kan. 135. See "Constitutional Law," Dec. Dig. (Key No.) § 120; Cent. Dig. §§ 379, 285. 8 Louisiana v. New Orleans, 102 U. S. 203, 26 L. Ed. 132. See "Constitu- tional Law," Dec. Dig. (Key No.) § 115; Cent. Dig. § 2U. 9 Planters' Bank v. Sharp, 6 How. 301, 327, 12 L. Ed. 447. See "Constitu- tional Law," Dec. Dig. (Key No.) §§ 115, 156; Cent. Dig. §§ 2U, 429. 10 State v. Krahmer, 105 Minn. 422, 117 N. W. 780, 21 L. R. A. (N. S.) 157. But contra as to a statute making it a felony for officers of a building aud loan association to receive dues owing to it after knowledge that it is insol- 724 LAWS IMPAIRING THE OBLIGATION OF CONTRACTS. (Ch. 31 it on payment of a less sum than was stipulated for," though a pro- vision of law merely for the solvability of the contract in a different currency than that agreed upon does not necessarily produce this result.^^ So a statute forbidding the renewal or extension of a con- tract (such as a mortgage) except on more onerous terms or with addi- tional formalities, is invalid as applied to existing contracts,^' and so is one destroying or displacing the lien of existing mortgages or judg- ments.^* Again, although the remedy for its enforcement is not strict- ly speaking any part of the contract, yet a statute which cuts off all remedy or which deprives one party of an important and valuable ex- isting remedy does in effect impair its obligation.^' On this ground it is held that a statute repealing a former law, which made stock- holders in a corporation personally liable for its debts, is, as respects creditors of the corporation holding claims against it at the time of the repeal, a law impairing the obligation of contracts.^* But a statute changing the rate of interest which a judgment shall bear after its entry does not come within this prohibition, for, as will be shown later, a judgment is not a contract, and if the original claim arose out of contract it was merged in the judgment.^' Nor can it be said that vent. State v. Missouri Guarantee Sav. & Bldg. Ass'n, 167 Mo. 489, 67 S. W. 215, 90 Am. St. Rep. 426. See "Constitutional Law," Dec. Dig. (Key No.) §§ 115, 139, 154, 155; Cent. Dig. § 274- ' 11 Boswell V. Security Mut Life Ins. Co., 193 N. T. 465, 86 N. B. 532, 19 L. R. A. (N. S.) 1O03 ; Court of Honor v. Hutehens (Ind. App.) 82 N. E. 89. See "Constitutional Law," Dec. Dig. (Key No.) §§ 115, 154, 15S; Cent. Dig. §§ 27^, 429. 12 Serralles v. Esbrl, 200 TJ. S. 103, 26 Sup. Ot. 176, 50 L. Ed. 391. See "Constitutional Law," Dec. Dig. (Key No.) § 154; Cent. Dig. §§ 454, 497. 13 Wilson V. Pickering, 28 Mont. 435, 72 Pac. 821. See "Constitutional Law," Dec. Dig. (Key No.) § 155; Cent. Dig. § 420. 14 Crowther v. Fidelity Ins., Trust & Safe-Deposit Co., 83 Fed. 41, 29 C. C. A. 1 ; Merchants' Bank v. Ballou, 98 Va. 112, 32 S. E. 481, 44 . Bd. 828 ; Manigault v. Springs, 199 U. S. 473, 26 Sup. Ct. 127, 50 L. Ed. 274; Chicago, B. & Q. R. Co. v. Nebraska, 170 U. S. 57, 18 Sup. Ct. 513, 42 li. Ed. 948; Americaja Kapid Tel. 0>. v. Hess, 58 Hun, 610, 12 N. T. Supp. 536; City of Seattle t. Hurst, 50 Wash. 424, 97 Pac. 454, 18 h. R. A. (N. S.) 169 ; Laurel Fork & S. H. R. Oo. v. West Virginia Transp. Co., 25 W. Va. 324. See '•Constitutional Law," Dec. Dig. (Key No.) §§ in, 118, 1S4, 135, 154; Cent. Dig. §§ 28S, 287, SU, 380-381, 392, 393. 7 3 Northern Pac. R. Co. v. Minnesota, 208 U. S. 583, 28 Sup. Ct 341, 52 L. Ed. 330 ; Wisconsin, M. & P. R. Co. v. Jaeobson, 179 U. S. 287, 21 Sup. Ct. 115, 45 L. Ed. 194 ; Chicago, B. & Q. R. Co. v. Nebraska, 170 U. S. 57, 18 Sup. Ct. 513, •S2 L. Ed. 948 ; St. Louis & S. F. R. Co. v. Mathews, 165 U. S. 1, 17 Sup. Ct. 243, 41 L. Ed. 611 ; Grissell v. Housatonic R. Co., 54 Conn. 447, 9 Atl. 137, 1 Am. St Rep. 138 ; People v. Illinois Cent. R. Co., 235 111. 374, 85 N. E. 606, 18 L. R. A. (N. S.) 915 ; Louisville & N. R. Co. v. Central Stockyards Co., 30 Ky. Law Rep. 18, 97 S. W. 778; Alabama & V. R, Co. v. King (Miss.) 47 South. 857; Illinois Cent R. Oo. v. Copiah County, 81 Miss. 685, 33 South. 502; Pal- myra Tp. V. Pennsylvania R. Co., 63 N. J. Eq. 799, 52 Atl. 1132 ; Baltimore & O. R. Co. V. Kreager, 61 Ohio St 312, 56 N. E. 203 ; Town of Clarendon v. Rut- land R. Co., 75 Vt 6, 52 Atl. 1057 ; State v. Thompson, 47 Or. 492, 84 Pac. 476, 4 L. R. A. (N. S.) 480 ; Missouri, K. & T. R. Co. of Texas v. McDuffey (Tex. Civ. App.) 109 S. W. 1104. See "Constitutional Law," Deo. Dig. (Key No.) § 133; Cent. Dig. §§ 376, 392. 74 See Stone v. Mississippi, 101 U. S. 814, 25 L. Ed. 1079; Boston Beer Co. V. Massachusetts, 97 U. S. 25, 24 L. Ed. 989 ; New Orleans Gaslight Co. v. Louisiana Light & Heat Producing & Mfg. Co., 115 I). S. 650, 6 Sup. Ct 252, Bl.Const.L.(3d.Ed.)— 47 738 LAWS IMPAIRING THE OBLIGATION OF CONTRACTS. (Ch. 21 though, as will presently be shown, an exemption from taxation may- take the form of an irrevocable contract, yet with this exception there is no contract between the state and its citizens as to what taxes shall be imposed, or when, or on what property, and no contracts between individuals can be allowed to interfere with the legislative power and discretion as to the imposition of these public burdens.'"' CHARTERS AS CONTRACTS. 287. The charter of a private corporation is a contract bet^veen the legislature granting it and the corporation; and it cannot be repealed, altered, or materially modified by the legislature -without the consent of the corporation. 288. Corporate charters, considered as contracts exempt from legis- lative control, are construed strictly against the corporators. 289. The charter of a corporation may be repealed, altered or amend- ed by the legislature if power to do so has been reserved in the charter itself or in a constitution or statute subject to which the charter was taken. 2S0. The franchises of a corporation may be resumed by the state in the exercise of the power of eminent domain; and their use and exercise may be regulated under the police power. 291. The charter of a municipal corporation is not a contract. The doctrine that the charter of a private corporation is to be con- sidered as a contract between the state and the corporation was first established in the celebrated case of Dartmouth College v. Woodward,''* 49 L. Ed. 831; Reynolds v. Geary, 26 Conn. 179; West River Bridge Co. v. Dix, 6 How. 5OT, 12 L. Ed. 535 ; City of Terre Haute v. EvansvUle & T. H. R. Co., 149 Ind. 174, 46 N. E. 77, 37 L. R. A. 189. See "Constitutional Law," Dec. Dig. (Key No.) § 118; Cent. Dig. §§ 287, S93. 7 5 Henderson Bridge Co. v. Henderson, 173 U. S. 592, 19 Sup. Ct. 553, 43 L. Ed. 823 ; Rochester R. Co. v. Rochester, 205 U. S. 236, 27 Sup. Ct. 469, 51 L. Ed. 784 ; Lutterloh v. FayettevUle, 149 N. C. 65, 62 S. E. 758 ; Hunter v. Pittsburgh, 207 U. S. 161, 28 Sup. Ct. 40, 52 L. Ed. 151 ; Olyphant Borough V. Egreskl, 29 Pa. Super. Ct. 116 ; Chanler v. Kelsey, 205 U. S. 466, 27 Sup. Ct. 550, 51 L. Ed. 882. But see In re Pell's Estate, 171 N. T. 48, 63 N. E. 789, 57 L. R. A. 540, 89 Am. St. Rep. 791. See "Constitutional Law," Dec. Dig. (Key No.) §§ 1S7, 138; Cent. Dig. §§ SOS, S5i, 408- 76 4 Wheat. 518, 4 L. Ed. 629. And see Planters' Bank v. Sharp, 6 How. 301, 12 L. Ed. 447 ; Blnghamton Bridge Case, 3 Wall. 51, 18 L. Ed. 137 ; Far- rington v. Tennessee, 95 U. S. 679, 24 L. Ed. 558 ; State v. Chicago & N. W. B, Co., 128 Wis. 449, 108 N. W. 594. See, also, Burke v. Rector, Church War- §§ 287-291) CHARTERS AS CONTRACTS. 739 wherein it appeared that the legislature of New Hampshire had under- taken to make certain radical changes in the government of the college, contrary to its charter and without its consent. It was decided that the charter was a contract, that it was based upon a supposed consid- eration of public services or public benefits, that it protected the cor- poration in the enjoyment of all its charter rights, privileges, and franchises against legislative interference, and that the act of the leg- islature of New Hampshire was void as impairing the obligation of this contract. It was soon seen that this doctrine was applicable to business and manufacturing companies, and in fact to every species of private corporations holding their charters under legislative grant or general law. The protection afforded them by the doctrine of this case is usually assigned as the cause of the enormous influence and power of corporations in modern business and industrial life, and many efforts have been made to escape from its sway. The Dartmouth Col- lege Case has often been assailed with the severest criticism. And in- deed it is probable that the decision, though it was right enough on the particular facts, set up a general rule which is indefensible in law. Yet it has never been directly overruled, and it still stands as the leading authority on this branch of the subject. But the courts have been careful to restrict the doctrine to the narrowest possible bounds, and the legislatures of the states have generally seen the wisdom of retaining control over the franchises or powers of new corporations. So far as regards exemption from legislative control, charters of incorporation are to be construed strictly against the corporators." A charter will not be held to grant a monopoly, for instance, unless the plain language requires that interpretation. Where a corporation, by its charter, is given the right to "take" property for the construction of its works, upon making just compensation, this does not constitute a dens, & Vestrymen of Trinity Church, 63 Misc. Rep. 43, 117 N. Y. Supp. 255, as to Impairing charter granted by the British crown in 1697. Though no power is reserved to amend a charter, the state may lawfully do so where the corporation accepts the amendment. Phlnney v. Trustees of Sheppard & Enoch Pratt Hospital, 88 Md. 633, 42 Atl. 58. This constitutional provision does not prevent the revocation of the charter of a social club as a punishment for violating the liquor laws. Cosmopolitan Club v. Virginia, 208 U. S. 378, 28 Sup. Ct. 394, 52 L. Ed. 536. See "Constitutional Law," Dec. Dig. (Key No.) §§ 123, 129; Cent. Dig. §§ 362-413. 7 7 Perrine v. Chesapeake & D. Canal Co., 9 How. 172, 13 L. Ed. 92 ; Georgia R. & Banking Co. v. Smith, 128 U. S. 174, 9 Sup. Ct. 47, 32 L. Ed. 377. See "Corporations," Deo. Dig. (Key No.) § 372; Cent. Dig. § 1520. 740 LAWS IMPAIRING THE OBLIGATION OF CONTRACTS. (Ch. 21 contract with the state such as to prevent the legislature from after- wards enacting that the company shall be liable for indirect or conse- quential injuries to the property of private persons caused by its con- structions or operations.'' It should also be noticed that a statutory provision, merely authorizing the formation of a corporation in the future, cannot become a contract, in any such sense as to be protected by the federal constitution, until it has become vested as a right by an actual organization under it, and then it takes effect as of that date, and subject to such laws as may then be in force.'" Moreover, rights or privileges granted to corporations by statute, after their incorpora- tion, do not constitute any part of the contract embodied in the char- ter, and consequently they may be revoked or modified by the legisla- ture at will, unless the statute itself amounts to a charter.^" And where two corporations are consolidated, under a state statute which has the effect of dissolving both of them and creating a new corporation, the charter of the new company may be subject to alteration or amend- ment by the legislature, although those of the old companies were not so liable. ^^ Reservation of Poiver to Alter or Amend. In granting a charter of incorporation, the state may reserve the right to repeal, alter, or amend it. And when this is done, the repeal or amendment of the charter is no impairment of the contract which it embodies, but it is rather the enforcement of one of its terms. This power may be reserved in the particular charter itself ; but it is equally effective if the state constitution or a statute, in force when the char- ter is granted, reserves to the legislature the right to revoke or modify it. In the latter case, the reservation becomes a part of the contract. ^^ 7 8 Pennsylvania R. Co. v. Miller, 132 U. S. 75, 10 Sup. Ct. 34, 33 L. Ed. 267. See "Constitutional Law," Dec. Dig. (Key 'No.) §§ 12.'}, 129; Cent. Dig. §§ 395, J,09. 7 9 New York v. Cook, 148 U. S. 397, 13 Sup. Ct. 645, 37 L. Ed. 498. An act of the legislature continuing the charter privileges and rights of a corpora- tion beyond the time fixed by the original act of incorporation, does not have the effect of creating a new charter, but merely extends the life of the one already in existence. Franklin County Court v. Deposit Bank of Frankfort, 87 Ky. 370, 9 S. W. 212, 10 Ky. Law Eep. 506. See "Constitutional Law," Dec. Dig. (Key No.) § 129; Cent. Dig. § 301. 80 South Carolina v. Gaillard, 101 U. S. 433, 25 ly. Ed. 937. See "Constitu- tional Law," Deo. Dig. (Key No.) § 121; Cent. Dig. § 310. 81 Shields v. Ohio, 95 U. S. 319, 24 L. Ed. 357. See "Constitutional Law," Deo. Dig. (Key No.) §§ 125, 129; Cent. Dig. § 369. 8 2 Chesapeake & O. R. Oo. v. Miller, 114 U. S. 176, 5 Sup. Ct 813, 29 L. Ed. §§ 287-291) CHARTERS AS CONTRACTS. 741 But the exercise of this power must be reasonable, and must have re- lation to the original nature and scope of the charter. It cannot be employed as a means of forcing the corporation into enterprises not contemplated by the charter, nor to take away the property of the corporation or destroy its value, nor to impose unjust burdens upon it, nor to deprive it of rights not granted by the charter, nor, generally, to withdraw from it the protection and benefit of any constitutional guaranties.'^ Neither can the lawful rights of the stockholders as between themselves be thus altered," though the regulation of such in- ternal affairs of the corporation as the election of directors or trus- tees is not beyond the scope of proper legislative interference in these cases.'" Reserved Right of Bfninent Domain and Police Power. Rights, privileges, or franchises granted to a corporation- by its charter may be resumed by the state, when the exigencies of the pub- lic require it, under the power of eminent domain, upon the payment of due compensation.** And notwithstanding the protection afforded to charter rights andl privileges by the doctrine under consideration, a corporation, like any individual, is subject to regulation, by legislative authority, to the end'; that the use of its franchises or property may not endanger the public-" 121 ; Stone v. Wisconsin, 94 U. S. 181, 24 L. Ed. 102 ; Suydam v. Moore, S Barb. (N. Y.) 358 ; Hinckley y. Schwarzschild & Sulzberger Oo., 107 App. Dlv. 470, 95 N. Y. Supp. 357 ; City of Oovington v. Kentucky, 173 U. S. 231, 19 Sup. Ct. 383, 43 L. Ed. 679. See "Constitutional Law," Dec. Dig. (Key No.) § 126; Cent. Dig. § 361. 8 3 City of Vicksburg v. Vieksburg Waterworks Co., 202 U. S. 453, 26 Sup^, Ct. 660, 50 L. Ed. 1102 ; Stearns v. Minnesota, 179 U. S. 223, 21 Sup. Ct. 73;. 45 K Ed. 162; Duluth & I. R. R. Co. v. St. Xouis County, 179 U. S. 302, 21 Sup. Ct. 124, 45 L. Ed. 201 ; New York & N. E. R. Oo. v. Bristol, 151 U. S, 556, 14 Sup. Ct. 437, 38 L. Ed. 269 ; McKee v. Chautauqua Assembly, 130 Fed'.. 536, 65 C. C. A. 8 ; Southern Pac. Co. v. Board of Railroad Com'rs (C. C.) 7& Fed. 236 ; City of Detroit v. Detroit & H. P. Road Co., 43 Mich. 140, 5 N. W. 275 ; Lewis v. Northern Pac. R. Co., 36 Mont. 207, 92 Pac. 469. See "Constitii- tional Law," Dec. Dig. (Key No.) §§ 125, 126, 129; Cent. Dig. §§ 362-ilS. 84 In re Newark Library Ass'n, 64 N. J. Law, 217, 43 Atl. 435 ; Garey v. St. Joe Mining Co., 32 Utah, 497, 91 Pac. 369, 12 L. R. A. (N. S.) 554. See "Con- stitutional Law," Deo. Dig. (Key No.) §§ 125, 126; Cent. Dig. §§ 325, 362-413. 8 5 'Looker v. Maynard, 179 U. S. 46, 21 Sup. Ct. 21, 45 L. Ed. 79; McKee V. Chautauqua Assembly, 130 Fed. 536, 65 0. C. A. 8. See "Constitutional Laiv," Dec. Dig. (Key No.) § 126; Cent. Dig. §§ 325, 36^-369. 8 6 West River Bridge Co. v. Dix, 6 How. 507, 12 L. Ed. 535. See "Constitu- tional Law," Dec. Dig. (Key No.) § 118; Cent. Dig. §§ 287, S93. 742 LAWS IMPAIRING. THE OBLIGATION OP CONTEACTS. (Ch. 21 health, safety, or comfort, or be made the means of oppression or fraud. That is, it is subject to regulation under the police power." Regulation of Tolls and Charges. Where the state or a municipal corporation, by a charter or a general law or ordinance, has granted to a railroad company, or a gas or water company or other public-service corporation, the right to fix its own rates of toll or charges, or to maintain certain fixed rates, this consti- tutes a contract, which cannot lawfully be impaired by any subsequent attempt on the part of the public authorities to regulate or reduce the rates.*' Even where no such specific contract has been entered into, it is implied in the company's charter that it shall be allowed to con- 87 Boston Beer Oo. v. Massachusetts, 97 U. S. 25, 21 L. Ed. 989; Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77; New Orleans Gaslight Oo. v. Louisiana Light & Heat Producing & Mfg. Oo., 115 U. S. 650, e Sup. Ct. 252, 29 L. Ed. 516 ; Stone v. Farmers' Loan & Trust Oo., 116 U. S. 307, 6 Sup. Ct. 334, 29 L. Ed. 639 ; People v. Illinois Oent. R. Oo., 235 111. 374, 85 N. E. 606, 18 L. R. A. (N. S.) 915 ; McOarter v. Hudson County Water Co., 70 N. J. Eq. 525, 61 Atl. 710. See /'Constitutional Laic," Dec. Dig. (Key No.) § UT; Cent. Dig. §§ 286, S92. 8 8 City of Cleveland v. Oeveland City Ry. Co., 194 U. S. 517, 24 Sup. Ct. 756, 48 L. Ed. 1102 ; City of Detroit v. Detroit Citizens' St. R. Co., 184 U. S. 368, 22 Sup. Ct. 410, 46 L. Ed. 592 ; City of Los Angeles v. Los Angeles City Water Co., 177 U. S. 558, 20 Sup. Ct. 736, 44 L. Ed. 8S6 ; Omaha Water Co. v. Omaha, 147 Fed. 1, 77 0. C. A. 267, 12 L. R. A. (N. S.) 736 ; Ball v. Rutland R. Oo. (C. C.) 93 Fed. 513 ; City of Indianapolis v. Central Trust Co.. 83 Fed. 529, 27 C. C. A. 580 ; City of Rushville v. Rushville Natural Gas Co., 164 Ind. 162, 73 N. E. 87 ; Shreveport Traction Cx). v. Shreveport, 122 La. 1, 47 South. 40 ; Opin- ion of Justices, 190 Mass. 605, 77 N. E. 1C3S ; Pingree v. Michigan Cent R. Co., 118 Mich. 314, 76 N. W. 635, 53 L. R. A. 274 ; Gulf & S. I. R. Co. v. Adams, 90 Miss. 559, 45 South. 91. But compare Laurel Fork & S. H. R. Co. v. West Virginia Transp. Co., 25 W. Va. 324, where It is said that the right to regulate the charges of railroad companies for transportation is one of the powers of the state, inherent In every sovereignty, to be exercised by the legislature from time to time at its pleasure ; and hence one legislature cannot, by a charter granted to a railroad company, though for a valuable consideration, confer on such company a right to charge rates for transportation which shall be be- yond the control of subsequent legislatures. And see Dillon v. Erie R. Co.. 19 Misc. Rep. 116, 43 N. Y. Supp. 320, holding that the grant to a railroad company to fix its charges is subject to the common-law rule that such charges must be reasonable, and the legislature has the power to declare what is a reasonable charge. And see also City of Knoxville v. Knoxville Water Co., 107 Tenn. 647, 64 S. W. 1075, 61 L. R. A. 888 (affirmed, Knoxville Water Co. v. Knoxville, 189 U. S. 434, 23 Sup. Ct. 531, 47 L. Ed. 887), where it is pointed out that a city, in the absence of express legislative authorization, cannot bind itself by a contract with a water company to fix irrevocably the charges to be §§ 287-291) CHARTERS AS CONTRACTS. 743 duct its business at a fair profit; and hence a law or ordinance re- ducing its charges to an unreasonably low figure is unconstitutional.'* Regulation of Foreign Corporations. Where a state offers to foreign corporations the privilege of doing business within its limits on certain conditions, as to taxation or other- wise, and on complying with certain requisites, a foreign corporation which accepts the conditions and complies with the requirements of the law acquires a contract right to engage in and continue its busi- ness within the state, of which it cannot be arbitrarily deprived,"" though it appears that this will not prevent the state from imposing additional burdens or conditions on the right to continue the business."^ Charters of Municipal Corporations. The charter of a municipal corporation is not a contract within the meaning of this clause of the constitution. It is a grant or delegation of governmental powers, for public purposes, to a subordinate agency of government. All rights, powers, privileges, and franchises granted to such corporations are held subject to legislative modification or re- call. And therefore a statute revoking or changing the public powers or rights of a municipality, altering its boundaries, or modifying its government, does not impair the obligation of any contract. °^ And on made by the latter. See "Constitutional Laiv," Dec. Dig. (Key ISfo.) § 1S5; Cent. Dig. §§ S80-S81. 8 9 People's Gaslight & CJoke Co. v. Chicago (C. C.) 114 Fed. 384 (affirmed 194 U. S. 1, 24 Sup. Ot. 520, 48 L. Ed. 851) ; Beardsley v. New York, L. B. & W. E. Co., 162 N. Y. 230, 56 N. E. 488; Riehman v. Consolidated Gas Co., 114 App. Div. 216, 100 N. Y. Supp. 81. /See "Constitutional Law," Deo. Dig. (Key No.) § 135; Cent. Dig. §§ 380-387. 6 American Smelting Co. v. Colorado, 204 U. S. 103, 27 Sup. Ct. 198, 51 L. Ed. 393 ; Chicago, R. I. & P. R. Co. v. Swanger (C. C.) 157 Fed. 783 ; Chicago, R. I. & P. R. Co. V. Ludwig (O. C.) 156 Fed. 152 ; Seaboard Air Line R. Co. v. Railroad Commission of Alabama (C. C.) 155 Fed. 792. See "Constitutional Law," Deo. Dig. (Key No.) § ISO; Cent. Dig. § 301. 91 British American Mortg. Co.. v. Jones, 77 S. O. 443, 58 S. E. 417; Con- necticut Mut. Life Ins. Co. v. Spratley, 172 U. S. 002, 19 Sup. Ct. 308, 43 L. Ed. 569 ; Sandel v. Atlanta Life Ins. Co., 53 S. C. 241, 31 S. E. 230 ; Blue Jacket Consol. Copper Co. v. Scherr, 50 W. Va. 533, 40 S. E. 514 ; Ivy v. Western Union Tel. Co. (O. C.) 165 Fed. 371. See "Constitutional Law," Dec. Dig. (Key No.) §§ 1Z9, 130; Cent. Dig. § 301. 92 Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. Ed. 629 ; Crook v. People, 106 111. 237 ; Demarest v. City of New York, 74 N. Y. 161 ; City of Philadelphia v. Fox, 64 Pa. 169 ; Town of Marietta v. Fearing, 4 Ohio, 427 ; Watson Seminary v. Pike County Court, 149 Mo. 57, 50 S. W. 880, 45 L. R. A. 675; Mannie v. Hatfield (S. D.) 118 N. W. 817; State r. Irvine, 14 Wyo. 318, 744 LAWS IMPAIRING THE OBLIGATION OP CONTKACTS. (Ch. 21 the same principle, legislative grants to municipal corporations, which do not pertain to the functions of government, but to the convenience or business advantages of the community, are not protected from subse- quent revocation by this constitutional provision, as they would be if granted to private persons or corporations. The charters of some of our most ancient cities were granted by the crown of Great Britain before the separation of the colonies. But this circumstance gives them no peculiar sanctity. They are as much under the control of the legislature of the state as are municipal charters granted by that legis- lature itself.®* EXEMPTION FBOM TAXATION. 292. A legislative grant of exemption from taxation xriU constitnte a contract vith the grantee which cannot be impaired by sub- sequent legislative action. 293. But such a contract of exemption— (a) Must be made out by clear and unambiguous terms, and cannot be presumed; and (b) Must be founded on a consideration moving to the public. It is well settled that the legislature oi a state may agree, by an explicit grant founded upon a consideration, to exempt specified prop- erty from taxation, either for a limited period or indefinitely, or that taxation of the property in question shall be had only on a certain basis, and not otherwise, or shall not exceed a certain rate; and this, will constitute a contract with the grantee which succeeding legisla- tures may not impair by imposing taxes contrary to the grant.'* 84 Pac. 90 (affiTmed 206 U. S. 278, 27 Sup. Ct. 613, 51 L. Ed. 1003) ; City of Covington v. Kentucky, 173 U. S. 231, 19 Sup. Ct. 383, 43 L. Ed. 679. See "Constitutional Law," Dec. Dig. (Key No.) § 127; Cent. Dig. §§ 325-3U- 8 3 Demarest v. City of New York, 74 N. Y. 161. See "Constitutional Law," Dec. Dig. (Key No.) § ni; Cent. Dig. §§ 325-dU- 94 New Jersey v. Wilson, 7 Cranch, 164, 3 L. Ed. 303 ; Pacific R. Co. v. Maguire, 20 Wall. 36, 22 L. Ed. 282 ; Northwestern University v. Illinois, 99' U. S. 309, 25 L. Ed. 387; New Jersey v. Yard, 95 XJ. S. 104, 24 D. Ed. 352; Gordon v. Appeal Tax Court, 3 How. 133, 11 L. Ed. 529 ; Farrington v. Ten- nessee, 95 U. S. 679, 24 'L. Bd. 558 ; Piqua BTaneh of State Bank v. Knoop,. 16 How. 369, 14 Ia Ed. 977 ; Wilmington & W. R. Oo. v. Reid, 13 Wall. 264, 20 L. Ed. 568 ;- City of New Orleans v. Houston, 119 U. S. 205, 7 Sup. Ct. 198, 30 L. Ed. 411 ; Tazoo & M. V. R. Co. v. Thomas, 132 U. S. 174, 10 Sup. Ct. 68,. 33 L. Ed. 302 ; Powers v. Detroit, 6. H. & M. R. Co., 201 U. S. 543, 26 Sup. Ct- 556, 50 L. Ed. 860 ; Henderson Bridge Oo. v. Henderson, 173 U. S. 5^, 19 Sup.. §§ 292-293) EXEMPTION FBOM TAXATION. 745 But a contract to exempt property from taxation will never be pre- sumed. On the contrary, the presumption is always strongly against the intention of the legislature to surrender this important power, or to restrict or limit it in any way. All doubts will be resolved against the exemption claimed. Nothing but the .clearest and plainest terms, manifesting such an intention, will be sufficient to establish a contract relieving property from its due share of the public burdens."" And furthermore, a grant of this special privilege must be founded upon a consideration, such as the imposition of some further burden or public duty upon the recipient of the grant, or the payment of a bonus or commutation to the state, or the surrender of some right or fran- chise previously held. If there is no such consideration, the grant of exemption is a mere act of grace or favor and is revocable at will."^ And if it appears that the exemption was made without any consider- ation moving to the public, as is usually the case with the exemption of the property of religious societies and charitable institutions, then there is nothing to prevent its repeal at any time, for there is no contract tO' stand in the way.°^ Ot. 553, 43 L. Ed. 823 ; State v. Alabama Bible Soc, 134 Ala. 632, 32 South. 1011 ; Gulf & S. I. R. C!o. v. Adams, 90 Miss. 559, 45 South. 91 ; State v. Board of Trustees of Westminster College, 175 Mo. 52, 74 S. W. 990 ; Lake Drum- ' mond Canal & Water Co. v. Com., 103 Va. 337, 49 S. E. 506, 68 L. K. A. 92. But legislative jwwer to alter or amend corporate charters, whether reserved In the state constitution or in a general law, includes the right to repeal a provision in such a charter exempting the property of the (Corporation from taxation. People v. Gass, 190 N. Y. 323, 83 N. E. 64, 123 Am. St. Rep. 549 r People v. Raymond, 126 App. Div. 720, 111 N. X. Supp. 177. And although particular property may be exempt from taxation, yet there is no constitu- tional objection on this ground to a transfer or succession tax, as this is not a tax on the property, but a charge on a privilege exercised or enjoyed under the laws of the state. Orr v. Gilman, 183 U. S. 278, 22 Sup. Ct. 213, 46 L. Ed. 196. See "Constitutional Law," Dec. Dig. (Key No.) § 138; Cent. Dig. §§ 308,^ 408. 95 Gilman v. City of Sheboygan, 2 Black, 510, 17 L. Ed. 305 ; Providence Bank v. Billings, 4 Pet. 514, 7 L. Ed. 939 ; Delaware Railroad Tax, 18 Wall. 206, 21 L. Ed. 888 ; City of St. Louis v. United Rys. Co., 210 U. S. 266, 28 Sup. Ct. 630, 52 L. Ed. 1054. See "Constitutional Laio,'" Dec. Dig. (Key No.) § 138; Cent. Dig. §§ 303, 408; "Taxation," Dec. Dig. (Key No.) §§ 203, 204; Cent. Dig. § 322. 9 6 Christ Church v. Philadelphia County, 24 How. 300, 16 L. Ed. 602; Home of the Friendless v. Rouse, 8 Wall. 430, 19 L. Ed. 495 ; Tucker v. Ferguson, 22 Wall. 527, 22 L. Ed. 805. See "Constitutional Law," Dec. Dig. (Key No.) § 138; Cent. Dig. §§ 303, 408. »r East Saginaw Salt Mfg. Oo. v. East Saginaw, 13 Wall. 373, 20 L. Ed. 611 ; r46 LAWS IMPAIRING THE OBLIGATION OF CONTRACTS. (Ch. 21 I.AWS AFFECTING REMEDIES ON CONTRACTS. 294. There is a distinction between the obligation of a contract and the remedy for its enforcement. Whatever pertains merely to the remedy may be changed or modified, at the discretion of the legislature, without impairing the obligation of the contract, provided the remedy be not wholly taken away nor so hampered or reduced in effectiveness as to render the con- tract practically incapable of enforcement.^s The remedy cannot be wholly abolished or denied to the parties. For to withdraw all legal means of enforcing a contract, or obtaining satisfaction for a breach of its terms, is to withdraw that sanction of the law which constitutes a part of the obligation of the contract. The state is bound to provide a remedy for such cases. But it is not of the obligation of the contract that the remedy shall remain the same as it was when the contract was made.'' In particular, a contract can- not be said to be impaired by a change in the law which makes the remedy for its enforcement more efficient or more easy of applica- Home Ins. Co. v. Augusta, 93 U. S. 116, 23 L. Ed. 825 ; In re City of New York, 11 Jolms. (N. Y.) 77 ; Broadway Baptist Church v. McAtee, 8 Bush, 508, 8 Am. Rep. 480; Manistee & N. E. R. Co. v. Commissioner of Railroads, 118 Mich. 349, 76 N. W. 633 ; Hanover Tp. v. Camp Meeting Ass'n (N. J. Sup.) 68 Atl. 753. See "Constitutional Law." Deo. Dig. (Key No.) § 1S8; Cent. Dig. §§ SOS, 408. 9 8 McFaddin v. Evans-Snlder-Buel Co., 185 U. S. 505, 22 Sup. Ct. 758, 46 L. Ed. 1012 ; Knickerbocker Trust Co. v. Cremen (C. C.) 140 Fed. 973 ; Harrison V. Remington Paper Co., 140 Fed. 385, 72 C. C. A. 405, 3 L. R. A. (N. S.) 954; City of Cleveland v. United States, 166 Fed. 677, 93 C. C. A. 274; Kendall v. Fader, 99 111. App. 104; State v. Helms, 136 Ind. 122, 35 N. E. 893; Good- bub V. Estate of Hornung, 127 Ind. 181, 26 N. E. 770 ; Webb r. Moore, 25 Ind. 4; Weller v. Wheelock, 118 Mich. G98, 118 N. W. 609; Muirhead v. Sands, 111 Mich. 487, 69 N. W. 826; Brown v. Kalamazoo Circuit Judge, 75 Mich. 274, 42 N. W. 827, 5 L. R. A. 226, 13 Am. St. Rep. 438 ; State v. Krahmer, 105 Minn. 422, 117 N. W. 780, 21 L. R. A. (N. S.) 157; State v. Hager, 91 Mo. 452, 3 S. W. 844 ; Blakemore v. Cooper, 15 N. D. 5, 106 N. W. 566, 4 L. R. A. (N. S.) 1074, 125 Am. St. Rep. 574 ; Kirkman v. Bird, 22 Utah, 100, 61 Pae. 338, 58 L. R. A. 669, 83 Am. St. Rep. 774 ; Flagg v. Locke, 74 Vt. 320, 52 Atl. 424 ; Second Ward Sav. Bank v. Schranck, 97 Wis. 250, 73 N. W. 31, 39 L. R. A. 569. See "Constitutional Law," Dec. Dig. (Key No.) §§ 1S9, 166-185; Cent. Dig. §§ JtlJt-525. »o Gantly v. Ewing, 3 How. 707, 11 L. Ed. 794 ; Antoni v. Greenhow, 107 U. S. 769, 2 Sup. Ct. 91, 27 U Ed. 468 ; Baltzer y. North Carolina, 161 U. S. 240, 16 Sup. Ct. 500, 40 L. Ed. 684. See "Constitutional Law," Dec. Dig. (Key No.) §§ 166-185; Cent. Dig. §§ m-5^5. § 294) LAWS AFFECTING REMEDIES ON CONTRACTS. 747 tion."" And as a general rule modifications in the statutory law of evidence pertain to the remedy merely, not to the substance of the contract, and are not objectionable on this ground.^"! But if the parties to a contract include in it, in express terms, the remedy to be sought upon its breach, or the means to be used for securing its performance, subsequent legislation changing the remedial process they have agreed upon is, as to them, inoperative. "^ Statutory Hens are generally regarded as merely a part of the remedy, and may be created or displaced without impairing the obligation of any con- tract."3 But a statute taking away the right to use the process of garnishment, except in cases where the creditor will swear that the debt was for food or house rent, cannot be applied to debts contracted before its passage and where exemptions were waived.^"* But the repeal of a usury law, operating retrospectively upon contracts pre- viously made, and which, at the time, would have been voidable for usury, cannot be said to impair their obligation.^''^ 100 Bernheimer v. Converse, 206 U. S. 516, 27 Sup. Ct. 755, 51 L. Ed. 1163 ; Henley v. Myers, 76 Kan. 723, 93 Pac. 168, 17 L. R. A. (N. S.) 779 ; Bryson v. McCreary, 102 Ind. 1, 1 N. E. 55 ; Converse v. Mtna. Nat. Bank, 79 Conn. 163, 64 Atl. S41 ; Red River Valley Nat. Bank v. Craig, 181 U. S. 548, 21 gup. Ct. 703, 45 L. Ed. 994. See "Constitutional Law," Dec. Dig. (Key No.) § 169; Cent. Dig. §§ JiH-525. 101 Wilson V. Iseminger, 185 U. S. 55, 22 Sup. Ct. 573, 46 L. Ed. 804; Hun- ziker v. Supreme Lodge K. P., 117 Ky. 418, 78 S. W. 201, 25 Ky. Law Rep. 1510 ; O'Bryan v. Allen, 108 Mo. 227, 18 S. W. 892, 32 Am. St. Rep. 595 ; Har- ris V. Harsch, 29 Or. 562, 46 Pac. 141. But legislation wliich effects unreason- able changes in the rules of evidence for the enforcement of existing contracts may impair their obligation. Davis v. Supreme Lodge, Knights of Honor, 165 N. Y. 159, 58 N. E. 891. See "Constitutional Law," Dec. Dig. (Key No.) § 175; Gent. Dig. §§ 519, 520. 102 International Building & Loan Ass'n v. Hardy, 86 Tex. 610, 26 S. W. 497, 24 L. B. A. 284, 40 Am. St. Rep. 870; Weist v. Wuller, 210 Pa. 143, 59 Atl. 820. See "Constitutional Law," Dec. Dig. (Key No.) § 169; Cent. Dig. §§ JfTJf- 523. 103 Wilson V. Simon, 91 Md. 1, 45 Atl. 1022, 80 Am. St. Rep. 427; Phelan v. Terry, 101 Minn. 454, 112 N. W. 872. But see Davidson v. Richardson, 50 Or. 323, 91 Pac. 1080, 17 L. R. A. (N. S.) 319, 126 Am. St. Rep. 738. See "Constitu- tional Law," Dec. Dig. (Key No.) § 161; Cent. Dig. §§ //?-}. 495. 104 Adams v. Creen, 100 Ala. 218, 14 South. 54. See "Constitutional Law," Dec. Dig. (Key No.) § 180; Cent. Dig. §§ 498-500. 10 5 Ewell T. Daggs, 108 U. S. 143, 2 Sup. Ct. 408, 27 L. Ed. 682; Petterson V. Berry, 125 Fed. 902, 60 C. C. A. 610; Barcllft v. Fields, 145 Ala. 264, 41 South. 84. See "Constitutional Law," Dec. Dig. (Key No.) § 159; Cent. Dig. %U5. 748 LAWS IMPAIRING THE OBLIGATION OP CONTRACTS. (Ch. 31 Bankruptcy or insolvency laws may be passed by the states, au- thorizing the discharge of debtors from their obligations and liabilities on just and reasonable terms. But these laws are subject to three im- portant limitations. First, there must be no national bankrupt law in existence at the time, for such a law suspends all state laws on the same subject while it continues in force. Second, state laws of this kind cannot apply to citizens of other states having claims against the debtor, for the state has no jurisdiction over them. Third, such laws cannot apply to contracts entered into before their enactment, for that would impair their obligation.^"* The legislature may enact new or different statutes of limitation, prescribing the period within which actions on contracts must be brought, and may make them applicable to existing contracts, pro- vided the remedy of the creditor is not thereby taken away or unrea- sonably restricted. That is to say, a statute of limitations cutting off all remedy on a particular contract, by prescribing a period which, as to that contract, had already expired, would be unconstitutional. But if it leaves a reasonable time to the creditor to begin his proceedings, he cannot complain, although the time is less than it would have been if the former statute had remained in force. ^"^ And conversely a debt^ or cannot be said to have any vested or contractual right in the benefit of a statute of limitations until it has fully and completely run against the claim, and hence, before that time, it may be enlarged or extended without impairing his rights.^"* 106 Ogden v. Saunders, 12 Wbeat. 213, G L. Ed. 606 ; Baldwin v. Hale, 1 Wall. 223, 17 L. Ed. 531 ; Union Bank of St. Paul v. Rugg, 78 Minn. 256, 80 N. W. 1121. As to the national bankruptcy law, see In re Rhoads (D. C.) 98 Fed. 399. See "Constitutional Law," Deo. Dig. (Key No.) § 163; Cent. Dig. §§ 1 or Bell V. Morrison, 1 Pet. 351, 7 L. Ed. 174; Sturges v. Crowninshleld, 4 Wheat. 122, 4 L. Ed. 529; Mitchell v. Clark, 110 U. S. 633, 4 Sup. Ct. 170, 312, 28 L. Ed. 279 ; Vance v. Vance, 108 U. S. 514, 2 Sup. Ct. 854, 27 L. Ed. 808 ; Lamb v. Powder River Live Stock Co., 132 Fed. 434, 63 C. C. A. 570, 6T L. R. A. 558 ; Wooster v. Bateman, 126 Iowa, 552, 102 N. W. 521 ; Cranor v. School Dist. No. 2, 151 Mo. 119, 52 S. W. 232 ; Osborn v. Jaines, 17 Wis. 573. But compare Close v. Potter, 153 N. T. 145, 49 N. E. 686. And see Bettman V. Cowley, 19 Wash. 207, 53 Pac. 53, 40 L. R. A. 815. fi'ee "Constitutional Law," Dec. Dig. (Key No.) §§ nO, 111; Cent. Dig. §§ 503-510. losDoehla v. Phillips, 151 Cal. 488, 91 Pac. 330; Tennessee Goal, Iron & R. Co. V. McDowell, 100 Tenn. 565, 47 S. W. 153 ; Cole v. Van Ostrand, 131 Wis. 454, 110 N. W. 884. See "Constitutional Law," Dec. Dig. (Key No.) §§. no, 171; Cent. Dig. §§ 503-510. I 294) LAWS AFFECTING EEMEDIES ON CONTRACTS. 749 A law granting exemptions from execution where none before ex- isted, or increasing the exemption already granted, may apply to the enforcement of contracts made before its enactment if the increase of the exemption is not unreasonable. But if it is so great as to make the creditor's remedy of no value, or seriously to impair his prospect of making a collection, then it interferes with the obligation of such contracts, and, as to them, is invalid.^"' For instance, a statute pro- viding that the proceeds of life-insurance policies shall not be liable for the debts of the decedent would be void as to debts already con- tracted."" The "betterment acts," allowing to defendants in ejectment the present value of improvements made by them upon the land in good faith, deducting the amount reasonably due for use and occupation, do not impair the obligation of contracts.^^^ But a statute which undertakes to make a lien for seed grain superior to the lien of a mortgage executed before the statute was enacted is repugnant to this clause of the constitution, and therefore void.^^^ A statute providing that property shall not be sold on execution or foreclosure of a mortgage, unless it will bring one-half or two-thirds of the value put upon it by appraisers, is invalid in respect to con- tracts made before its passage which could have been enforced, by the law at the time they were made, by a judgment and the seizure and sale of property to satisfy it. For such a law though professing 109 Edwards v. Kearzey, 96 U. S. 595, 24 L. Ed. 793; Foster v. Byrne, 76 Iowa. 295, 35 N. W. 513 ; Willard v. Sturm, 96 Iowa, 555, 65 N. W. 847 ; Duna V. Stevens, 62 Minn. 380, 64 N. W. 924 ; Patton v. City of Aslieville, 109 N. C. 685, 14 S. E. 92 ; Penrose v. Erie Canal Co., 56 Pa. 46, 93 Am. Dec. 778 ; Ricliardson v. Kaufman, 143 Ala. 243, 39 South. 368; Blouin v. Ledet, 109 La. 709, 33 South. 741 ; Berry v. Ewing, 91 Mo. 395, 3 S. W. 877 ; Myers v. Moran, 113 App. Div. 427, 99 N. Y. Supp. 269 ; Folsom v. Asper, 25 Utah, 299, 71 Pac. 315. See "Constitutional Law," Dec. Dig. (Key No.) § 180; Cent. Dig. i§ 498-500. 110 Rice V. Smith, 72 Miss. 42, 16 South. 417; In re Heilbron's Estate, 14 Wash. 536, 45 Pac. 153, 35 L. R. A. 602 ; Skinner v. Holt, 9 B. D. 427, 69 N. W. 595, 62 Am. St. Rep. 878. See "Constitutional Law," Deo. Dig. (Key No.) § 180; Cent. Dig. §§ 498-500. 111 Gris wold v. Bragg (C. C.) 48 Fed. 519; Oahill v. Benson, 19 Tex. Civ. App. 30, 46 S. W. 888. See "Constitutional Law," pec. Dig. (Key No.) § 160; Cent. Dig. % US. 112 Yeatman v. Foster County, 2 N. D. 421, 51 N. W. 721, 33 Am. St. Rep. 797. See "Constitutional Law," Dec. Dig. (Key No.) § 161; Cent. Dig. §§ 494, 495. 750 LAWS IMPAIRING THE OBLIGATION OF CONTEACTS. (Ch. 21 to act only on the remedy, really withdraws from the creditor the effec- tive means of enforcing it upon the basis of which he may be sup- posed to have made the contract."' A statute giving the right to redeem from mortgage foreclosure sales, or from sales on execution or other judicial process, where no such right before existed, or where such right was expressly waived, or extending the time allowed therefor, cannot constitutionally apply to existing mortgage contracts dr to sales made before its passage.^" But a statute which reduces th^ rate of interest which redemptioners from mortgage foreclosure sales are required to pay to 8 per cent, is not a violation of the obligation of a contract as to a mortgagee whose mortgage was executed at a time when redemptioners were required to pay 10 per cent, interest. The reason is that such a statute does not diminish the duty of the mortgagor to pay what he agreed to pay, nor shorten the period of payment, nor affect any remedy which the mort- gagee had, by existing law, for the enforcement of his contract.^^° The legislature cannot constitutionally deprive municipal corpora- tions of the power of taxation, in such a manner or to such an extent as to leave them without the means of raising money for the payment of existing debts, which were contracted at a time when they pos- sessed the power to levy taxes and on the faith of the continuance of such power. To do so would be to impair the obligation of the con- tracts out of which the debts arose, by abolishing the means of their enforcement.^^' Thus, when municipal bonds are taken by the holders lis McCracken v. Hay ward, 2 How. 608, 11 L. Ed. 397; Gantly v. Ewing, 3 How. 707, 11 L. Ed. 794 ; Swinburne v. Mills, 17 Wash. 611, 50 Pac. 489, 61 Am. St. Rep. 932. And see Thompson y. Cobh, 95 Tex. 140, 65 S. W. 1090, 93- Am. St. Rep. 820; Bradley v. Lighteap, 195 U. S. 1, 24 Sup. Ot. 748, 49 L. Ed. 65. See "Constitutional Law," Deo. Dig. (Key No.) §§ 169, 110, 181, 18Z; Cent. Dig. §§ m-525. 114 Barnltz v. Beverly, 163 U. S. 118, 16 Sup. Ct. 1042, 41 L. Ed. 93; State V. Bradshaw, 39 Fla. 137, 22 South. 296 ; Hull v. State, 29 Fla. 79, 11 South. 97, 16 L. R. A. 308, 30 Am. St. Rep. 95 ; Watkins v. Glenn, 55 Kan. 417, 40- Pac. 316; Paris v. Nordburg, 6 Kan. App. 260, 51 Pac. 799; State v. Sears, 29 Or. 580, 46 Pac. 785, 54 Am. St. Rep. 808 ; State v. Fylpaa, 3 S. D. 586, 54 N. W. 599. See "Constitutional Law," Deo. Dig. (Key l>lo.} §§ 139, 183; Cent. Dig. §§ 315, 501. lis Ck)nnecticut Mut. Life Ins. Oo. v. Cushman, 108 U. S. 51, 2 Sup. Ct- 236,. 27 L. Ed. 648 ; Robertson v. Van Cleave, 129 Ind. 217, 26 N. E. 899, 15 L. R. A. 68 ; Hooker v. Burr, 194 U. S. 415, 24 Sup. Ct. 706, 48 L. Ed. 1046. See- "Constitutional Law," Dec. Dig. (Key No.) §§ 155, 183; Cent. Dig. §§ 4^, 501. 118 Von Hoffman v. City of Quincy, 4 Wall. 535, 18 L. Ed. 403 ; In re Cop- § 294) LAWS AFFECTING REMEDIES ON CONTRACTS. 751 on the faith of a promise to levy an annual tax to pay the interest on them, this constitutes a part of the contract; and the municipality cannot lawfully be deprived of the power to levy such taxes.^^^ enhaver (C. C.) 54 Fed. 660 ; MeCless v. Meekins, 117 N. C. 34, 23 S. a 99. See "Constitutional Law;' Dec. Dig. (Key No.) §§ 127, 137; Cent. Dig. §§ 337, SSi. 117 Louisiana v. Pilsbury, 105 U. S. 278, 26 L. Ed. 1090; Port of Mobile v. Watson, 116 U. S. 289, 6 Sup. Ct. 398, 29 L. M. 620. See "Cmistitutional Law," Deo. Dig. (Key No.) §§ 127, 137; Cent. Dig. §§ 337, S54- 752 BETROACTIVE LAWS. (Ch. 22 CHAPTER XXTT. RETBOACTIVB LAWS. 295. Validity of Retroactive Statutes. 296. Retroactive Effect Avoided by Construction. 297. Curative Statutes. 298. Statutes Curing Administrative Action. 299. Curing Defective Judicial Proceedings. VALIDITY OF RETBOACTIVE STATUTES. 295. Retroactive latrs are not unconstitutional, unless they are in tlie nature of ex post facto laws or bills of attainder, or unless they impair the obligation of contracts, or divest vested rights, or unless they are specifically forbidden by the constitution of the particular state. A retroactive (or retrospective) law is one which looks backward or contemplates the past; one which is made to affect acts or transac- tions occurring before it came into effect, or rights already accrued, and which imparts to them characteristics, or ascribes to them effects, which were not inherent in their nature in the contemplation of the law as it stood at the time of their occurrence.'^ Bills of attainder and ex post facto laws are both included in this class. A bill of attainder or an ex post facto law is always retroactive ; but not all retroactive laws are bills of attainder or ex post facto laws. The latter terms, as we have already seen, relate only to the imposition of pains or pen- alties or the conduct of criminal trials. Again, all laws which impair the obligations of contracts are retroactive. For if they related only to future contracts, they could not be said to have this effect, because 1 Society for Propagation of the Gospel v. Wheeler, 2 Gall. 105, 139, Fed. Cas. No. 13,156. A constitutional prohibition against the enactment of laves retrospective in their operation refers to such as relate to civil rights and proceedings in civil cases. Gladney v. Sydnor, 172 Mo. 318, 72 S. W. 554, 69 L. R. A. 880, 95 Am. 'St. Rep. 517. A statute cannot be said to be retrospec- tive, though it acts upon past transactions or an existing state of facts, if It gives to persons concerned an opportunity to comply with its directions before its penalties attach. Hickman v. Preferred Tontine Mercantile Co., 184 Mo. 160, 82 S. W. 1075. See "Constitutional Law," Dec. Dig. (Key No.) §§ 186-S08; Cent. Dig. §§ 526-590. § 295) VALIDITY OF RETROACTIVE STATUTES. 753 contracts are made with reference to existing laws. Laws which have the effect of divesting vested rights are also of this character; for the phrase "vested right" implies something settled or accrued in the past, on which the new statute is to operate." There are also nu- merous classes of retroactive laws which are constitutionally objection- able for the reason that they exceed the powers of the legislature or invade the province of one of the other departments of the govern- ment. But unless the law in question belongs to one of the classes mentioned above, or is open to some one of the objections described, the mere fact that it is retroactive in its operation will not suffice to justify the courts in declaring it unconstitutional, unless all laws of that character are prohibited by the constitution of the state.' No such prohibition is found in the federal constitution. If a state statute does not impair the obligation of contracts or partake of the nature of a bill of attainder or an ex post facto law, its retrospective character does not make it inconsistent with the national constitution.* But in the constitutions of some few of the states, we find a specific prohi- bition against retroactive legislation, eo nomine.* : Balles v. Daly, 146 Ala. 628, 40 South. 420 ; Martin v. Oskaloosa (Iowa) 99 N. W. 557 ; Porter v. Glenn, 87 111. App. 106 ; Gladney v. Sydnor, 172 Mo. 318, 72 S. W. 554, 60 L. R. A. 880, 95 Am. St. Rep. 517 ; Butte & B. Oonsol. Min. Co. V. Montana Ore Purchasing Co., 25 Mont 41, 63 Pac. 825 ; Merchants' Bank v. Ballon, 98 Va. 112, 32 S. E. 481, 44 L. R. A. 306, 81 Am. St. Rep. 715. See "Constitutional Law," Dec. Dig. (Key No.) §§ 92-119, 186-203; Gent. Dig. §§ 11^-290, 526-590. 3 Cahen v. Brewster, 203 U. S. 543, 27 Sup. Ct. 174, 51 L. Ed. 310 ; Orient Ins. Co. V. Daggs, 172 U. S. 557, 19 Sup. Ct. 281, 43 L. Ed. 552 ; Plummer v. Northern Pac. Ry. Co. (O. C.) 152 Fed. 206 ; Atwood v. Buckingham, 78 Conn. 423, 62 Atl. 616; Kiskaddon v. Dodds, 21 Pa. Super. Ct. 351; Whitlock v. Hawkins, 105 Va. 242, 53 S. E. 401; State v. Whittlesey, 17 Wash. 447, 50 Pac. 119. See "Constitutional Law," Deo. Dig. (Key No.) §§ 186-203; Cent. Dig. §§ 526-590; "Statutes," Cent. Dig. §§ 3i2-377. * Satterlee v. Matthewson, 2 Pet. 380, 7 I* Ed. 458 ; Drehman v. Stifle, 8 Wall. 595, 19 L. Ed. 508. See "Constitutional Late," Dec. Dig. (Key No.) § 186; Cent. Dig. § 526. 5 See New York L. Ins. Co. v. Board of Com'rs of Cuyahoga County, 106 Fed. 123, 45 O. C. A. 233 ; State v. Galveston, H. & S. A. R. Co., 100 Tex. 153, 97 S. W. 71. See "Constitutional Law," Dec. Dig. (Key No.) §§ 186-203; Cent. Dig. §§ 526-590. BL.CoNST.Ii.(3D.ED.)— 48 754 BBTROACTITE LAWS. (Ch. 22 RETROACTIVE EFFECT AVOIDED BY CONSTRUCTION. 296. A statute will be construed to operate in fnturo only (that is, it will not be given a retroactive effect by construction), unless the legislature has so explicitly expressed its intention to make the act retrospective that there is no place for a reasonable doubt on the subject.^ The reason for this rule is the general tendency to regard retro- active laws as dangerous to liberty and private rights, on account of their liability to unsettle vested rights or disturb the legal effect of prior transactions. "Retrospective laws being in their nature odious, it ought never to be presumed the legislature intended to pass them, wher^ the words will admit of any other meaning." ^ And where the law is clearly and explicitly retrospective, it will still be subjected, in this respect, to a rigid interpretation, so that its retrospective features may not be further extended than is absolutely required by the lan- guage of the act.* CURATIVE STATUTES. 297. The legislature may retrospectively validate transactions be- tween private persons, irhich would other-wise fail to have the eftect -which the parties intended to give them, either in conse- quence of a -want of capacity, or of a failure to observe formal- ities -which the law imposed and -which it might dispense xirith. It is first to be noticed that the object of curative and confirmatory acts is to give effect to the intention of the parties, to enable them to carry into effect some transaction which they have designed and at- tempted, but which fails of its expected legal consequences only by reason of some statutory disability or some irregularity in their action. Hence it would not be competent, by an act 6f this kind, to make the transaction carry a legal effect which the parties did not contemplate, e. g., to turn an attempted mortgage into a deed absolute. 8 Aufemordt v. Easin, 102 U. S. 620, 26 h. Ed. 262. See "Statutes;' Deo. Dig. (Key Wo.) § S63; Cent. Dig. § SU- ^ Underwood v. Lilly, 10 Serg. & R. (Pa.) 97, 101. See "Constitutional Law," Dec. Dig. (Key No.) § 195; Cent. Dig. § 5J,2. s Thames Mfg. Co. v. Lathrop, 7 Oonn. 550. See "Constitiitional Law," Dec. Dig. (Key No.) § 193; Cent. Dig. § 538. § 297) CURATIVE STATUTES. 755 In the next place, statutes of this kind are intended to do justice, and they cannot be objected to by the party whose invahd contract or conveyance they vaHdate. Such a party cannot claim that he has a vested right to insist upon the ineffectualness of the contract or conveyance. On the contrary, the law recognizes an equity in the other party to the transaction, and it is to this that the curative act gives effect.^ But retrospective curative statutes cannot be allowed to operate to the detriment of the intervening rights of third persons. Thus if, after the execution of an invalid contract or conveyance, the person who made it deals with a third person, in good faith, in respect to the same subject matter, the rights thus acquired by such third person cannot be cut out by the validation of the prior contract or conveyance.^" The invalidity of the transaction may arise from the want of au- thority or capacity in the person who attempted to transfer rights to another. And this may be of two kinds, natural or legal. If it is of the former sort, the legislature cannot supply the lack of capacity; if of the latter description, it may be remedied. For example, if one undertakes to transfer property which he does not own, or, by such a transfer, to eiifect a fraud upon the rights of third persons, his want of capacity to make a title is not such as the legislature may dispense with retroactively. And for a like reason, it could not give effect to a deed rnade by a lunatic. But on the other hand, legal disabilities, whether existing at common law or by statute, such as the disability of a married woman, a minor or a spendthrift, could be removed at any time by an act of the legislature, and therefore their invalidating effect may be taken away, in particular cases, by a curative statute, when it is necessary to do justice and carry into effect the intention of the parties. When the invalidity of the transaction arises from ir- regularity in the action of the parties, or failure to observe technical requirements, it may be cured, provided the formalities neglected were B Thus a statute conferring upon a bank power to hold real estate to which it has received a conveyance, executed in good faith by the vendor, Is valid, though enacted without the vendor's procurement or consent. Thweatt v. Bank of Hopkinsville, 81 Ky. 1. See "OonstittUional Law," Dec. Dig. (Key No.) §§ 92-112, 186-203; Cent. Dig. §§ 174-270, 526-590. 10 McDowell V. Rockwood, 182 Mass. 150, 65 N. B. 65; Merchants' Bank v. Ballou, 98 Va. 112, 32 S. E. 481, 44 L. R. A. 306, 81 Am. St. Rep. 715 ; Thomp- son v. Morgan, 6 Minn. 292 (Gil. 199). See "Constitutional Law," Dec. Dig. (Key No.) §§ 192-^196; Cent. Dig. §§ 543-549. 756 EETKOACTIVB LAWS. (Ch. 33 such as the law estabHshed and might dispense with, and the defects were not jurisdictional.^^ To illustrate the foregoing principles, we may cite the rule that, "when a deed or other conveyance is invalid by reason of the failure of the parties thereto to conform to some formality imposed by the ■statute, the legislature, which imposed the formality, may by a sub- sequent act cure the defect, and give the deed such, effect as the parties thereto intended that it should have at the time of its execution." ^^ Thus, a curative act validating deeds which were ineffectual to con- vey title only because the acknowledgment was informal, taken before a wrong officer, or otherwise defective, is good and vaHd.^' But when a deed of a corporation is executed by the president and secretary under their private seals, and there is nothing to show that they were author- ized by the directors to make the deed, this is not such an irregularity or defect as can be cured by a subsequent statute.^* The legislature may authorize a county or other municipal corporation to subscribe to the stock of a railroad company and to issue bonds to pay such sub- scription ; and if, by reason of mistake, carelessness, or other cause, the conditions precedent to the exercise of such power by the municipality have not been complied with, the legislature can cure all irregularities by subsequent legislation, and make such contracts as valid and bind- ing as if all the conditions precedent had been strictly complied with.^'* 11 Single V. Marathon County Sup'rs, 38 Wis. 363. As to statute validating defective marriage contract, see Lufkin v. Lufkin, 182 Mass. 476, 65 N. E. 840. See "Constitutional Law," Deo. Dig. (Key No.) §§ 192-196; Gent. Dig. %% 536-549. 12 Pelt V. Payne, 60 Ark. 637, 30 S. W. 426. But it is not competent for the legislature to pass an act declaring a deed, which was a valid conveyance when made, fraudulent and void unless recorded previous to the recording of a subsequent deed obtained by a bona fide purchaser or mortgagee. Varick's Ex'rs V. Briggs, 22 Wend. (N. T.) 543. See "Constitutional Law," Dec. Dig. (Key No.) §§ 192-196; Cent. Dig. §§ 536-549. 13 Smith V. Gale, 144 U. S. 509, 12 Sup. Ct. 674, 36 L. Ed. 521; Bryan v. Bryan, 62 Ark. 79, 34 S. W. 260 ; Shrawder v. Snyder, 142 Pa. 1, 21 Atl. 796 ; Carson v. Thompson, 10 Wash. 295, 38 Pac. 1116 ; Barrett v. Barrett, 120 N. C. 127, 26 S. E. 691, 36 L. R. A. 226. See "Constitutional Law," Deo. Dig. (Key Ho.) §§ 192-196; Cent. Dig. §§ 536-51,9; "Aclcnowledgment," Dec. Dig. (Key No.) § 47; Cent. Dig. §§ 235-240. 14 McCroskey v. Ladd (Oal.) 28 Pac. 216. See "Deeds," Dec. Dig. (Key No.) § 52; Cent. Dig. § 98. 16 Thompson v. Lee County, 3 Wall. 327, 18 L. Ed. 177 ; Granniss v. Chero- kee Tp. (C. C.) 47 Fed. 427 ; Ball v. Presidio County (Tex. Civ. App.) 27 S. W. 298) STATUTES CURING ADMINISTRATIVE ACTION. 75T STATUTES CUBING ADMINISTRATIVE ACTION. 298. Defeoti-ve legal proceedings, inTolving administrative or executive action, may be validated by retrospective statute in all cases ^vhere the legislature ivould have poixrer to declare that the same acts, or the same manner of doing them, should in the fu- ture be valid and effectual, but not where the defects are juris- dictional. If the invalidating defect concerns the rights of parties to such an extent thatthe transaction, thus defective, cannot be said to answer the requirement of due process of law, it is obvious that the legislature cannot give it validity by subsequent statute. But if the defect con- sists merely in the omission or neglect of some formality (that is, something which the positive law has required, but which is not in- herently necessary to the validity of the transaction), or in an imper- fect or irregular manner of complying with the requirement of some such formality, then the legislative authority is ample to cure the de- fective proceeding by a retroactive statute.^* Tax Proceedings. It is within the constitutional power of the legislature, under proper limitations, to pass general or special acts curing or validating irregular and defective proceedings in the assessment and collection of taxes. But this power is bounded by the general rule above stated. Proceed- ings in the assessment and collection of taxes which the legislature might have dispensed with, or made immaterial, in the statute under which the proceedings are taken, may be dispensed with or made im- material by a statute passed after the proceedings have been taken and acting retrospectively, and thus defects in those proceedings, or the omission altogether of proceedings which might have been origin- ally dispensed with, may be cured.^'^ But if the defect is jurisdictional, 702 ; Bell v. Farmville & P. R. Co., 91 Va. 99, 20 S. B. 94^2. See "Constitu- tional Law," Dec. Dig. (Key No.) §§ 192-196; Cent. Dig. §§ 536-549. laWhitlock v. Hawkins, 105 Va. 242, 53, S. B. 401; City of Redlands v. Brook, 151 Cal. 474, 91 Pac. 150; Cranor v. Volusia County Com'rs, 54 Fla. 526, 45 South. 455; Hodge v. Trustees of School Dist. No. 9 of Clarendon County, 80 S. C. 518, 61 S. E. 1009; McSurely v. McGrew (Iowa) 118 N. W. 415. See "Constitutional Law," Deo. Dig. (Key f^o.) §§ 192-196; Cent. Diff. §§ 536-5J,9. 17 People V. Turner, 145 N. T. 451, 40 N. B. 400; People v. Wisconsin Cent. B. Co., 219 HI. 94, 76 N. E. 80 ; Haynes v. State, 44 Tex. Civ. App, 492, 99 S. 758 RETROACTIVE LAWS. (Ch. 33 that is to say, if it goes to the root of the authority to act, if it in- volves the omission of a step which the legislature could not have dispensed with, or if it consists in an irregularity which the legislature had no power to declare immaterial, then it is beyond the reach of a curative statute." For instance, if the tax itself was void, because levied for an unlawful purpose, or for any other reason, this is a de- fect which cannot be cured retrospectively.^' So where power was conferred by the legislature to make an assessment, which actually was made, it is competent for the legislature by a retroactive law to cure any irregularity or defect in the form in which the power was exercised. But the total lack of any assessment of the taxes cannot be cured, for this would be a jurisdictional defect. Nor can curative laws be em- ployed to legalize an assessment which is so fatally defective as to be entirely void, whether for want of jurisdiction or want of authority to make it.^° It must also be remembered that notice to the tax payer and an opportunity for him to be heard in opposition to the assess- ment, or to its amount, is a jurisdictional requisite. No retrospective statute can waive such notice or cure the want of it, because the legis- lature could not have dispensed with it in advance.^ ^ It is competent to provide for the assessment and taxation of property omitted from, W. 405. Where the law requires tax assessors, before entering upon their duties, to take and. subscribe an oath, and the assessors take, but do not sub- scribe, the required oath, it is competent for the legislature, by a subsequent curative statute, to validate the assessment made by them. Smith v. Hard, 59 Vt. 13, 8 Atl. 317. So, where a tax levy is invalid because the assessors omitted to include property which should have been included, the legislature may validate it. Van Deventer v. Long Island City, 57 Hun, 590, 10 N. T. Supp. 801. See "Gcmstitutional Law," Dec. Dig. (Key No.) §§ 192-196; Cent. Dig. §§ 5S6-5i9. 18 Exchange Bank Tax Cases (C. C.) 21 Fed. 99; Porster v. Forster, 129 Mass. 559; Carlisle v. Goode, 71 Miss. 453, 15 South. 119; Northern Pac. R. Co. v. Galvin (C. C.) 85 Fed. 811. See "Constitutional Law," Dec. Dig. (Key No.) §§ 192-196; Gent. Dig. §§ 536-549. 10 Conway v. Cable, 37 III. 82, 87 Am! Dec. 240; Hart v. Henderson, 17 Mich. 218. See "Constitutional Law," Dec. Dig. (Key No.) §§ 192-196; Cent. Dig. §§ S36-549, 906. 2 0Reis V. Graff, 51 Cal. 86; Hart v. Henderson, 17 Mich. 218; People v. Lynch, 51 Cal. 15, 21 Am. Rep. 677. See Mayor, etc., of Baltimore v. Ulman, 79 Md. 469, 30 Atl. 43; Louisville & N. R. Co. v. Bullitt County, 92 Ky. 280, 17 S. W. 632. See "Constitutional Law," Dec. Dig. (Key No.) §§ 192-196; Cent. Dig. §§ 536-549; "Statutes," Cent. Dig. § 360. - 21 Breaus v. Negrotto, 43 La. Ann. 426, 9 South. 502. See "Constitutional Law," Deo. Dig. (Key No.) §§ 192-196; Cent. Dig. §§ 536-549. § 299) CUEING DKFECTIVE JUDICIAL PROCEEDINGS. 759 the regular assessment, provided it was subject to taxation under a valid law at the time it should have been assessed.'''' And so it is within the power of the legislature to recognize the existence of a moral obligation to refund excessive taxes paid by the citizen, and to give it legal effect by a retroactive statute," but not to impose differ- ent and more onerous conditions upon the right to redeem property from tax sales previously made.''* Public Sales. Sales made by public officers or under legal authority or in pur- suance of legal proceedings, such as sales on execution, or on fore- closure of a mortgage, or under a decree of partition, or by execu- tors or guardians under orders of the probate court, which are in- effectual only in consequence of some defect or irregularity which the legislature might have rendered immaterial in advance, and which does not affect the substantial rights of parties interested, may be made good by retrospective legislation.^" CURING DEFECTIVE JUBICIAIi PROCEEDINGS. 299. RetrosiiectiTe curative statutes may be employed to remedy sucb defects in judicial proceedings as amount to mere irregulari- ties, but not to supply want of jurisdiction. Where there is a want of jurisdiction, all proceedings had in the case are utterly void. If a statute should give them validity and effect, it would amount to a usurpation of judicial power by the legislature. For the rights of parties would in that case be determined, not by 2 2 Carroll v. Wright, 131 Ga. 728, 63 S. E. 260; Kentucky Union Co. v. Com., 128 Ky. 610, 33 Ky. Daw Rep. 587, 110 S. W. 398, 27 Ky. Law Rep. 1150; State v. Vogelsang, 183 Mo. 17, 81 S. W. 1087 ; Muli-'s Adm'r v. Bardstown, 120 Ky. 739, 87 S. W. 1096 ; First Nat. Bank v. Covington (O. C.) 103 Fed. 523. See "Constitutional Law," Dec. Dig. (Key No.) §§ 186-203; Cent. Dig. §§ 526-590. 2 3 People V. Board of Education & Trustees of School Dist. No. 1, 126 App. DIv. 414, 110 N. Y. Supp. 7G9. See "Constitutional Laic," Deo. Dig. (Key No.j § 190. 2 4 Johnson v. Taylor, 150 Cal. 201, 88 Pac. 903, 10 L. R. A. (N. S.) 818, 119 Am. St. Rep. 181. See "Constitutional Law," Dec. Dig. (Key No.) § 190. 2 5Ackerson v. Orchard, 7 Wash. 377, 35 Pac. 605; De Zbranlkov v. Bur- nett, 10 Tex. Civ. App. 442, 31 S. W. 71 ; Finlayson v. Peterson, 5 N. D. 587, 67 N. W. 953, 33 L. R. A. 532, 57 Am. St. Rep. 584. See "Constitutional Law," Dec. Dig. (Key No.) §§ 186-203; Cent. Dig. §§ 526-590. 760 EKTROACTIVB LAWS. (Ch. 23 the judgment of the court, but by the statute alone.=" But in the case of merely irregular or defective proceedings, it is otherwise. For here the fault lies in some particular which the legislature might have rendered immaterial or dispensed with in advance. Thus, in cases where the jurisdiction has attached, and there has been a formal de- fect in the proceedings, where the equity of the party is complete, and all that is wanted is legal form, it is within the recognized power of the legislature to correct such defect and to provide a remedy for the legal right." 28 For instance, where judicial proceedings are void because of an entire want of notice to a party whose rights are affected thereby, a subsequent statute assuming to validate such proceedings is not valid. Board of Com'rs of Wells County v. Fahlor, 132 Ind. 426, 31 N. E. 1112. And see State v. Board of Education, 25! Ohio Cir. Ct. R. 224 ; Livingston v. Livingston, 173 N. Y. 877, 66 N. E. 123, 61 L. R. A. 800, 93 Am. St. Rep. 600. See "Constitu- tional haw" Dec. Dig. (Key No.) § 195; Cent. Dig. § 542. 27 Lane v. Nelson, 79 Pa. 407. And see South West Imp. Co. v. Smith's Adm'r, 85 Va. 306, 7 S. E. 365, 17 Am. St. Rep. 59; Hall v. Perry, 72 Mich. 202, 40 N. W. 324; Eastman v. McCarten, 70 N. H. 23, 45 Atl. 1081. See "Constitutional Law," Dec. Dig. (Key No.) 1 195; Cent. Dig. § 542. TABLE OF CASES CITED. [the li-IGUEES REFER TO PAGES.] Abbott T. National Bank of Commerce, 589. Abeel v. Clark, 399. A. Booth & Co. V. Davis, 238. Abraham v. Casey, 187. Ackerson v. Orchard, 759. Adair v. U. S., 231, 421. Adams v. Capital State Bank, 66. Adams v. Chicago, B. & N. R. Co., 491. Adams v. Corriston, 628. Adams v. Creen, 747. Adams v. Kuykendall, 505. Adams v. Roanoke. 585. Adams t. Shelbyville, 584. Adams Exp. Co. v. Charlottesville Wool- en Mills, 220. Adams Esp. Co. v. State, 601. Adams & Bryson v. Lytle, 293. Addyston Pipe & Steel Co. v. U. S., 218, 237, 289, 241, 566. Adkins v. Richmond, 250. Adler & Sons Clothing Co. v. Cori, 566. Advisory Opinion, In re, 365. ^tna Ins. Co. v. Brigham, 636. ^tna Ins. Co. f. Com., 429. Agua Pura Co. of Las Vegas v. Las Ve- gas, 375. Ahl V. Glein, 367. Ah Lim v. Territory, 400. Ah Lung, In re, 126. Ah Peen. Ex parte, 685. Ah Sin V. Wittman, 547. Ah Yup, In re, 259. Aikin v. State, 693. Aikmann v. Sanderson & Porter, 591. Aitken v. Wells River, 396. Alabama v. Georgia, 29. Alabama Girls' Industrial School v. Reynolds, 27, 80. Alabama Gold Life Ins. Co. v. Girardv, 181. Alabama Industrial School v. Addler, 26. Alabama & V. R. Co. v. King, 787. Albani, The, 159. Albany City Nat. Bank v. Maher, 580. Albers Commission Co. v. Spencer, 431. Albert v. Gibson, 67. Albright v. Fisher, 352. Albright v. Sussex County Lake & Park Commission, 484, 485. Albuquerque Laud & Irr. Co. v. Gutier- rez, 480. Alden v. Fitts, 335. Aldridge v. Spears, 478. Alexander v. Milwaukee, 494. Alexander v. U. S., 472. Alexandria & P. R. Co. v. Alexandria & W. R. Co., 478, 486. Alford V. Hicks, 80. Alfred Phosphate Co. y. Duck River Phosphate Co., 473, 477, 478. Alger V. Anderson, 151, 185. AUec V. Reece, 12. Allegheny -County Home's Case', 383i 385. Allen V. Arguimbau, 178. Allen V. Colby, 616. Allen V. Crofoot, 662. Allen V. Jay, 868, 458. Allen V. Jones, 475. Allen V. Staples, 614. Allen V. State, 702. AUentowu v. Wagner, 508. Allgeyer v. Louisiana, 523, 525. Allison, In re, 516. Allman v. Mobile, 386. Allnut V. Lancaster, 190. Allopathic State Board of Medical Ex- aminers V. Fowler, 410. Almy V. California, 210, 859, 360. Alvarez y Sanches v. U. S., 166. American Ass'n v. Williams, 191. American Banana Co. v. United Fruit Co., 239, 241, 244. American De Forest Wireless Tel. Co. V. Superior Court of City & County of San Ifrancisco, 573. American Exp. Co. v. State, 220. American Kre Ins. Co. v. State. 429. American Homestead Co. v. Karsten- diek, 411. American Ins. Co. v. Canter, 142, 278. American Ins. Co. v. 356 Bales of Cot- ton. 279. American Print Works v. Lawrence, 396. „ American Rapid Tel. Co. v. Hess, 397, 737. American S. B. Co. v. Chace, 161. American School of Magnetic Healing v. McAnnulty, 266. American Smelting Co. v, Colorado, 743. Bl.Const.L.(3d.Ed.) (761) 762 CASES CITED. [The figures refer to pages.] American Smelting & Refining Co. t. People, 460. American Steel & Wire Co. v. Speed, 250, 359. ' American Strawboar(} Co. v. Peoria Strawboard Co., 429. Ames V. Kansas, 155. Ames T. People, 249. Ames v. Railroad Co., 142. Ames Realty Co. v. Big Indian Min. Co., 151. Amory v. Amory, 300. Amoskeag Nat. Bank v. Ottawa, 380. Amperse y. Winslow, 12. Anderson v. Anderson, 299. Anderson v. Baker, 645. Anderson v. Berry, 333. Anderson v. Byrnes, 606. Anderson v. Com., 376. Anderson t. Dunn, 202. Anderson v. Hamilton, 121. Anderson v. Henry, 593. Anderson v. Indianapolis Drop Forging Co., 90. Anderson v. Lewis, 316. Anderson v. Messenger, 571. Anderson v. Ritterbusch, 879. Anderson v. Rountree, 200. Anderson v. Santa Anna Tp., 187. Anderson v. Wellington, 404. Andreas v. Beaumont, 375. Andrew v. New York Bible & Common Prayer Book Soc, 529. Andrews v. Auditor, 446. Andrews v. King County, 463. Andrews v. Smith, 182. Andrews v. Swartz, .588. Andrews v. Wall, 160. Andrus v. Fidelity Mut. Life Ins. Ass'n, 551 Angle V. Chicago, St. P. M. & O. R. Co., 71. Anglo-American Land, etc., Co. t. Lom- bard, 188. Anglo-Californian Bank v. Field, 565. Annable v. Patch, 598. Ansley v. Ainsworth, 101, 721. Antelope, The, 17, 269. Anthony, Ex parte, 333. Anthony v. Burrow, 150, 153, 185. Anthony v. Halderman, 648. Anti-Kalsomine Co. v. Kent Circuit Judge, 610. Antoni v. Greenhow, 171, 730, 746. Antrim's Case, 144. Apex Transp. 'Co. v. Garbade, 478, 545. Appeal Tax Court of Baltimore City v. Patterson, 447. Appeal Tax Court of Baltimore City v. Rice, 466. Appleyard v. Massachusetts, 304. Application for Admission to Practice, In re, 601. Application of Senate, In re, 103. A. R. Barnes & Co. v. Berry, 419. Arey v. Lindsey, 78. Arie v. State, 81. Ariola t. Newman, 605. Arkansas, L. & G. R. Co. v. Kenne- dy, 08. Arkansas M. R. Co. v. Canman, 406. Armour Packing Co. v. U. S., 230, 245, 360. Armstrong v. Athens County, 178. Armstrong t. Carson, 298. Armstrong v. Traylor, 376. Arnold v. Aldeu, 726. Arnold v. Arnold's Estate, 534. Arnold v. Decatur, 475. Arnold v. Yanders,. 250. Arnott V. Webb, 298. Arrowsmith v. Harmoning, 595. Arwine v. California Board of Medical Examiners, 99. Asbell V. State, 26. Asbell V. State of Kansas, 227, 253. Asher v. Texas, 249. Associated Press v. Com., 246. Astrom v. Hammond, 94. Atchison St. R. Co. v. Missouri Pac. It Co. 10. Atherton Mach. Co. v. Atwood-Morrisou Co,, 153. Atkin V. Kansas, 416: Atlantic City v. France, 405. Atlantic City Waterworks Co. v. Atlan- tic City, 562, 578. Atlantic Coast Line R. Co. v. Beazley, 417. Atlantic Coast Line R. Co. r. Com., 250. Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, 407, 545. Atlantic Coast Line R. Co. v. Wharton, 251. Atlantic, S. R. & G. R. Co. v. State, 470. Atlantic & G. R. Co. v. Georgia, 62, 186. Atlantic & P. Tel. Co. v. Philadelphia, 248. Attorney General, In re, 279. Attorney General v. A. Booth & Co., 558, 643. Attorney General v. Board of Canvas- sers of Seventh Senatorial Dist., 344. Attorney General v. Bolger, 320. Attorney General v. Common Council of City of Detroit, 314. Attorney General v. Bau Claire, 458. Attorney General v. Electric Storage Battery Co., 295. Attorney General v. Jochim, 572, 575, 596. Attorney General v. Metropolitan R. Co., 489. Attorney General t. Old Colony R. Co., 98. Attorney General v. Rice, 349. Attorney General v. State Board of As- sessors, 68, 77. Attorney General y. Township Board of Springwells, 375. Attorney General v. Western Union Tel. Co., 235. Attorney General v. Winnebago Lake & F. R. Plank Road Co., 462. CASES CITED. [The figures refer to pages.] 763 Attorney General of Massachusetts v. Western Union Tel. Co., 450. Atwood V. Buckingham, 606, 753. Atwood V. Welton, 534. Aubry, In re, 410. AufEmordt v. Easin, 754. Augusta Bank v. Augusta, 457, 465. Augusta Brokerage Co. v. Central of Georgia R. Co., 232. Auld V, Butcher, 723. Aurora & G. E. Co. v. Harvey, 487. Austin V. State, 226, 293, 409. Austin T. Tennessee, 217, 252. Auten V. United States Nat. Bank, 154. Avery's Will, In re, 599. Ayers, In re, 171. B Backus V. Fort St. Union Depot Co., 471, 546, 587, 595. Backus V. Lebanon, 496. Bacon v. Board of State Tax Com'rs, 462. Bacon v. Locke, 295. Bacon v. Texas, 178. Bacon v. Towne, 701. Bacon v. U. S., 607. Bacon v. Walker, 389, 390, 552. Badenoch v. Chicago, 550. Bailes v. Daly, 753. Bailey v. Dozier, 165. Bailey v. Mason, 603. Bailey v. Master Plumbers, 426. Bailey 'V. Milner, 358. Bailey v. State, 542. Baily v. Philadelphia, 562. Bain, Ex parte, 680. Baird v. New York, 630. Baiz, In re, 156. Baker, Ex parte, 307. Baker v. Grand Rapids, 516. Baker v. Lexington, 732. Baker v. Norwood, 471, 586. Baker v. State, 540. Baldwin v. Hale, 260, 748. Baldwin v. Hutchison, 662. Ball v. Presidio County, 756. Ball V. Bawles, 661. Ball V. Rutland E. Co., 414, 742. Ball V. U. S., 682. Ballard v. Hunter, 63, 583, 643. Baltimore & O. E. Co. v. Kreager, 737. Baltimore & O. E. Co. v. Pittsburg, W. & K. E. Co„ 499, 591. Baltimore & O. S. W. E. Co. v. Board of Com'rs of Jackson County, 486. Baltimore & O. S. W. E. Co. v. Eeed, 602. Baltimore & O. & C. E. Co. v. Sawvel, 583. Baltimore & S. E. Co. v. Nesbit, 710. Baltzer v. North Carolina, 746. Bancroft v. Cambridge, 388. Bancroft v. Hambly, 189. Bank v. Supervisors, 212. Bankers' Case, 319. Bank of California v. San Francisco, 452. Bank" of Columbia v. Okely, 573, 627. Bank of Kentucky v. Com., 447. Bank of Kentucky v. Wister, 172. Bank of Pennsylvania v. Com., 441. Bank of St. Mary's v. State, 606. Bank of United States v. Deveaux, 164. Bank of United States v. Planters' Bank, 172. Banks, Ex parte, 706. Banks, In re, 654. Banks v. State, 90. Banks, The, v. The Mayor, 212. Bank Tax Case, 212, 447. Baptist Church in Hartford v. Wither- ell, 533. Barataria Canning Co. v. Joulian, 428. Barber Asphalt Pav. Co. v. Morris, 192. Barber Asphalt Pav. Co. v. Eidge, 572, 582. Barbier v. Connolly, 411. Barclay v. Barclay, 540. Barelift v. Fields, 747. Barfield v. Louisville, 584. Barhite v. Home Tel. Co. of Bochester, 505. Barker v. People, 675. Barker v. Pittsburg, 734. Barnardiston v. Soame, 12. Barnes v. People, 293. Barney v. Baltimore, 164. Barnhard Bros. & Spindler v. Morrison, 217. Barnitz v. Beverly, 750. Barrett v. Barrett, 756. Barrett v. Hopkins, 145. Barrett v. Millikan, 576. Barrett v. State, 702. Barrington v. Missouri, 177. Barron v. Burnside, 195. Barrow S. S. Co. y. Kane, 150. Barry, In re, 183. Barry v. Mercein, 177. Bartemeyer v. Iowa, 642. Bartholomew v. Austin, 562. Bartlett v. Ball, 599. Bartlett v. State, 89. Bartlett v. Wilson, 581. Barton v. Kimmerley, 570. Barton v. State, 710. Barton Nat. Bank v. Atkins, 724. Basso V. U. S., 21, 142. Bates V. Bassett, 515. Bates V. Taylor, 319. Bates' Case, 85. Baum V. State, 674. Bauserman v. Blunt, 186. Bayard, In re, 706. Bayard v. Singleton. 58. Baylies v. Curry, 549. Baylis v. Travelers' Ins. Co., 628. Bazemore v. State, 425. Beach v. Bay State Steamboat Co., 363. Beach v. Trudgain, 608. Beals V. State, 462. Beam v. U. S., 124. 764 CASES CITED. [The figures refer to pages.] Beardsley v. New York, L. E. & W. R. Co., 413, 743. Beatson v. Skene, 121. Beatty v. Wilson, 191. Beaupre v. Noyes, 178. Beavers v. Haubert, 698. Becker t. La Crosse, 515. Becker v. Washington, 520. Beckett v. Sheriff Harford County, 181. Beekstead v. Montana Union R. Co., 578. Bedell, Ek parte, 708. Bedford v. U. S., 493. Bedford Quarries Co. v. Bough, 550. Beebe v. Russell, 179. Beechley t. Mulville, 429. Belfast, The, 160. Belfast Sav. Bank v. Stowe, 188. Belgenland, The, 159. Belknap v. Ball, 666. Bell V. Parmville & P. R. Co., 757. Bell V. Morrison, 748. Bell T. Watson, 465. BeDeville & I. R. Co. v. Gregory, 370. Bellinger v. New York Cent. R. Co., 494. Bellingham Bay & B. C. R. Co. v. New Whatcom, 583. Bellows V. Bellows, 626. Bell's Gap R. Co. v. Pennsylvania, 553. Bender v. Crawford, 597. Benedict v. New Orleans, 367. Benedict v. People, 698. Benedict v. State, T02. Benjamin v. Manistee River Imp. Co., 222. Benner v. Atlantic Dredging Co., 494. Bennett v. Butterworth, 191. Bennett Water Co. v. Millvale, 578. Benson v. People, 321. Benson v. U. S., 277. Berea College v. Com., 555. Bergen, In re, 252. Berkey v. Cornell, 191. Berkowitz v. U. S., 699. Berlin v. Gorham. 507. Bernheim v. Waring, 628. Bernheimer v. Converse, 747. Bertholf v. O'Reilly, 73, 403. Bertram v. Commonwealth, 64. Berry v. De Maris, 579. Berry v. Bwing, 749. Berry Coal & Coke Co. v. Chicago, P. & St. L. R. Co., 231. Bessette v. People, 410, 549. Betancourt v. Mutual Reserve Fund Life Ass'u, 174. Bethune v. Hughes, 519. Bettman v. Cowley, 748. Beveridge v. Lewis, 473. Beymau v. Black, 369. Bickerdike v. State, 368. Bienvenu, Succession of, 65. Bienville Water Supply Co. v. Mobile, 562. Bigelow V. Calumet & Hecla Min. Co., 238, 239, 241. Bigelow V. Draper, 485. Bigelow T. Forrest, 719. Bigelow V. Nickerson, 3G4. Bigelow V. Old Dominion Copper Min- ing & Smelting Co., 439. Bigelow V. West Wisconsin R. Co., 499. Bigler v. Waller, 213. Billings V. Illinois, 554. Billings V. State, 26. Bill Posting Sign Co. v. Atlantic City, 490. Bingham v. Cabot, 165. Bingham v. Port Arthur Channel & Dock Co., 493. Binghamton Bridge Case, 731, 738. Birmingham Mineral R. Co. v. Parsons, Birmingham & A. A. R. Co. v. Louis- ville & N. R. Co., 486. Birmingham & A. R. Co., Ex parte, 54. Bischoff V. Wethered, 298. Bishofe V. State, 732. Bishop T. American Preserves Co., 243. Bissell V. Davison, 399. Bissell V. Kankakee, 368. Blackham v. Gresham, 265. Black Hawk Co. v. Springer, 625. Blackrock Copper Min. & Mill. Co. v. Tiugey, 60, 78. Black V. State, 554, 703. Blackstone v. Miller, 5.54, 725, Blackwell v. State, 688. Blain, Ex parte, 363. Blair v. Chicago, 163. Blair v. Cuming County, 458. Blair v. Kilpatrick, 411. Blake v. McClung, 294, 295, 558, 576. Blakemore v. Cooper, 746. Blanchard v. Barre, 66. Blanchard v. The Martha Washington, 223. Blanchard v. U. S., 117. Blazier v. Miller, 579. Blindell v. Hagan, 422. Bloch, In re, 304. Block V. Chicago, 99. Block V. Schwartz, 72, 426, 573. Bloomer v. Stolley, 369. Bloomfield & R. Natural Gaslight Co. v. Calkins, 488. Bloom V. Koch, 574. Blouin V. Ledet, 749. Blue Bird Min. Co. v. Largey, 155. Blue Jacket Consol. Copper Co. v. Scherr, 14, 26, 551, 743. Blumenthal v. Craig, 165. Blum V. Thomas, 165. Blythe v. Hinckley, 355. Board of Com'rs for Filling Certain Slough Ponds in City of St. Louis v. Shields, 372. Board of Com'rs of Barber County v. Smith, 383. Board of Com'rs of Clay County v. Mc- Gregor, 484. Board of Com'rs of Franklin County v. Gardiner Sav. Inst., 187. Board of Com'rs of Grand County v. King, 444. CASES CITED. [The figures refer to pages.] 765 Board of Oom'rs of JacUson County v. State, 470. Board of Com'rs of Kearney County, Kan., V. Vandriss, 372. Board of Com'rs of Mille Lacs County V. Morrison, 623, 625. Board of Com'rs of Petite Anse Drain- age Dist. V. Iberia & V. R. Co., 593. Board of Com'rs of Pitkin Countv v. Aspen Mining & Smelting Co., 384. Board of Com'rs of Wells County v. Fahlor, 760. Board of Oouncilmen of City of Baton Rouge V. Cremonini, 520. Board of Directors of Woman's Relief Corps Home Ass'n of California v. Nye, 366. Board of Education v. Bakewell, 87. Board of Education of Cincinnati v. Mi- nor, 530. Board of Education of the Kentucky Annual Conference of the Methodist Episcopal Church v. Illinois, 636, 643. Board of Education of Union Free School Dist. No. 6 of Town of Cort- landt V. Board of Education of Union Free School Dist. No. 7 of Town of Cortlandt, 727. Board of Liquidation v. McComb, 95, 171. Board of Liquidation of City of New Or- leans V. U. S., 192. Board of Metropolitan Police v. Board of Auditors of Wayne County, 375. Board of Railroad Com'rs v. Market St. R. Co., 80. Board of Revenue of Montgomery Coun- ty V. Montgomery Gaslight Co., 465. Board of Sup'rs of Livingston County V. Welder. 456. Board of Sup'rs of Norfolk County v. Cox, 479. Board of Sup'rs of Ramsey County v. Heenan, 379. Board of Trade of City of Chicago v. Christie Grain & Stock Co., 239. Board of Water Supply of City of New York, In re, 469. Bobbs-Merrill Co. v. Straus, 240, 241. Bobo V. Board of Levee Com'rs, 71. Boca Mill Co. v. Curry, 77. 80. Bogart V. The John Jay, 161. Boise Irrigation & Land Co. v. Stewart, 603. Boiling V. Lersner, 155. Bollman, Ex parte, 718. Bolln V. Nebraska, 680. Bond V. Com., 693. Bond V. Jay, 363. Bond V. Sanford. 567. Bonham's Case, 57. Bon Homme County v. Berndt, 68. Bonner v. Gorman, 595. Bonner v. Phillips, 446. Bonnett v. Vallier, 56, 64, 438, 439, 440, 546, 617. Bonney r. McClelland, 591. Bonsai v. Yellott, 367. Boone v. People, 687. Booth v. Com., 352. Booth V. Illinois, 566. Booth V. People, 398, 437. Booth V. Woodbury, 367, 444, 456. Booth & Co. V. Seibold, 428. Bordentown Banking Co. v. Sparhawk, 480. Borden v. Trespalacios Rice & Irr. Co., 480. Borger v. State, 405. Borough of Dunmore's Appeal, 507. Borough of Freeport v. Marlis, 12. Boske V. Comingore, 96. Bosque v. U. S., 21, 259. Bostock V. Sams, 424. Boston Beer Co. v. Massachusetts, 388, 389, 402, 436, 577, 600, 737, 742. Boston Molasses Co. v. Com., 28. Boston Water Power Co. v. Boston, 465. Boswell V. Otis, 299. Boswell V. Security Mut. Life Ins. Co., 724. Botiller v. Domiuguez, 126. BottorfE V. Lewis, 599. Bott V. Wurts, 51, 52. Bounties, In re, 368. Bounties to Veterans, In re, 455. Bourland v. Hildreth, 649. Bourn v. Hart, 367. Bowers v. Indianapolis, 405. Bowman v. Chicago & N. W. R. Co., 220, 403. Bowman v. Harris, 152. Bowman v. Middleton, 58. Boyce, Ex parte, 389, 416. Boyce, In re, 68. Boyd, Ex parte, 711. Boyd V. Alabama, 436, 733. Boyd v. Mills, 645. Boyd v. Nebraska, 259. Boyd V. U. S., 324, 610, 614, 687. Boyett, In re, 340, 538. Boyle V. State, 678. Braceville Coal Co. v. People, 418. Bradbury v. Vandalia Levee & Drain- age Dist., 480. Bradford Const. Co. v. Heflin, 417, 550. Bradley, In re, 586. Bradley v. Fisher, 12. Bradley v. Lightcap, 750. Bradley v. State, 90. Bradshaw v. Lankford, 376. Bradwell, In re, 409. Bradwell v. Illinois, 409, 642. Brady v. C-arteret Realty Co.. 90. Brady v. Howe, 675. Brady v. Mattern. 60, 438, 550. Brady v. State, 407. Bragg v. People, 733. Branch, In re, 86. Bray v. State, 65. Breaux v. Negrotto, 758. Brennan v. United Hatters of North America, Local No. 17, 430, 559. Brenner. In re. 60. 766 CASES CITED. [The figures refer to pages.] Brent T. Hagner, 121. Brett V. Ebel, 428. Brevoort v. Grace, 423. Brewer Brick Co. v. Brewer, 368, 458. Brewers' Ass'n v. Attorney General, 20S. Brickhouse v. Brooks, 153. Briggs V. Traders' Co., 150. Brightman v. Kimer, 369. Bright V. Murpliy, 14. Brimmer v. Kebman, 435. BrinkerhofE v. Newark & H. Traction Co., 473. Briscoe v. Bank of Kentucky, 202, 357. Brisenden v. Cliambcrlain, 165. Bristol V. Johnson, 367. British American Mortg. Co. v. Jones, 743. Brittle v. People, 282. Britton v. Atlantic & C. A. K. Co., 557. Britton v. Board of Election Com'rs, 566, 669. Broad, In re, 416. Broadmoor Land Co. v. Curr, 190. Broadway Baptist Church V. McAtee, 746. Brobine v. Revere, 99. Broderick's Will, In re, 191. Bronk v. Barckley, 78. Bronk v. State, 540. Bronson v. Bruce, 651. Bronson v. Rodes, 213. Brooke v. State, 403. Brookings County v. Murphy, 374. Brooklyn Distilling Co. v. Standard Dis- tilling & Distributing Co., 428. Brooklyn Union Gas Co. v. New York, 414. Brooks T. Mclntyre, 590. Brooks V. State, 65. Brooks V. Tripp, 294. Brooks V. U. S., 120. Brosnahan, In re, 267. Brown, Ex parte, 306, 307. Brown v. Birmingham, 643. Brown v. Board of Levee Com'rs, 572. Brown v. Carolina Midland Ry., 408. Brown v. Clark, 599. Brown v. Epps, 35, 686. Brown v. Fleischner, 374. Brown v. Galveston, 67, 514. Brown v. Gerald, 476, 478, 481. Brown v. Houston, 220, 248. Brown v. Hummel, 507. Brown v. Jacobs Pharmacy Co., 427, 431. Brown v. Kalamazoo Circuit Judge, 333 746 Brow'n v. Maryland, 203, 208, 219, 227, 246, 251, 359. Brown v. Morgan, 151. Brown v. Murdock, 609. Brown v. Purdy, 399. Brown v. Smart, 260. Brown v. State, 700. Brown v. U. S., 131, 270. Brown v. Walker, 46, 122, 688, 689. Brown's Case, 303, 588. Brown Shoe Co. v. Hunt, 576. Bruce v. Manchester & K. R. Co., 181. Brummitt y. Ogden Waterworks Co., 70, 564. Brun V. Mann, 150, 152. Brunn v. Kansas City, 479. Bryan r. Bryan, 756. Bryan v. Cattell, 734. Bryan v. Chester, 425. Bryant v. Hunter, 298. Bryant v. Pittsfield, 491. Bryant v. Skillman Hardware Co., 415. Bryson v. McCreary, 747. Buck V. Beach, 581. Buckhout V. Witwer, 428. Buckner v. Finley, 296. BuckstafE v. Viall, 665. Budd V. New York, 414. Buell, In re, 303. Buffalo V. Collins Banking Co., 425. Buford V. Speed, 573. Buist V. City Council of Charleston, 372. Bullitt V. Sturgeon, 92, 332. Bullock V. State, 556. Bumpus V. French, 538. Bunkie Brick Works v. Police Jury of Avoyelles, 581. Burbach v. Milwaukee Electric Ey. & Light Co., 540. Burcher v. People, 374. Burdett v. Com., 667. Burdick v. People, 409. Burgess v. Seligman, 186. Burke, Ex parte, 530. Burke v. Monroe County, 385. Burke v. Rector, etc., of Trinity Church, 738 Burke v. Snively, 367. Burlington Tp. v. Beasley, 458. Bumetta v. Marceline Coal Co., 66. Buruette, In re, 67. Burnett v. Postal Tel. Cable Co., 474. Burnham v. Fields, 192. Burns, In re, 481, Burns v. State, 632. Burns v. Superior Court, 90. Burnside, Ex parte, 64. Burritt v. Commissioners of State Con- tracts, 379. Burrow-Giles Lithographic Co. v. Sar- ony, 268. Burrows v. Delta Transp. Co., 72. Burrows v. Interborougb Metropolitan Co., 238, 432. Burrows v. Vanderbergh, 724. Burton v. Fulton, 13. Burton v. U. S., 198. Bush V. U. S., 124. Bushell's Case, 685. Busse v. Barr, 65. Butchers' Union Slaughterhouse & L. S. L. Co. V. Crescent City Live Stock Landing & S. H. Co., 411, 436, 559, 560, 563. Butler v. Horwitz, 213. Butler v. Pennsylvania, 600, 734. Butler T. State, 87, 679. Butler V. White, 100, 131, 287. Butler V. Worcester, 496, 625. Butler Bros. Shoe Co. v. United States Rubber Co., 147. Butte City Water Co. v. Baker, 287. Butte & B. Consol. Min. Co. v. Mon- tana Ore Purchasing Co., 753. Buttfield V. Bidwell, 227. Buttfield V. Stranahan, 227, 287. Button V. U. S., 119. Byers v. Com., 685. Byers v. McAuley, 182. Byrne's Adm'rs v. Stewart's Adm'rs, Byrnes v. Douglass, 481. Cache County v. Jensen, 581. Cahen v. Brewster, 758. Cahill V. Benson, 749. OahiU v. Chicago, M. & St. P. R. Co., 622. Cain, Ex parte, 396. Calder v. Bull, 84, 202, 710. Calder v. Halket, 12. Calder v. Kurby, 732. Caldwell, Ex parte, 344, 530. Caldwell v. North Carolina, 250. Caldwell v. Texas, 595. Caldwell v. Wilson, 596. Caldwell County v. Harbert, 512. Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 187, 189. California v. Central Pac. R. Co., 229, 449. California Nat. Bank v. Thomas, 178. California Reduction Co. v. Sanitary Reduction Works, 400, 437, 439. Calkins v. Sumner, 662. Callanan v. Hurley, 90. Callan v. Wilson, 277, 629, 686. Calvin's Case, 633. Camden Interstate R. Co. v. Catletts- burg, 170, 729. Cameron v. Kyte, 91. Camille, In re, 259. Campagnie Francaise de Navigation v. State Board of Health, 399. Campau v. Detroit, 75. Campbell v. California, 554. Campbell v. Oenterville, 447. Campbell v. Golden Cycle Min. Co., 151. Campbell v. Holt, 603, 604. Campbell v. Iron-Silver Min. Co., 603. Campbell v. Morris, 294. Campbell v. Skinner Mfg. Co., 605. Campbell's Registration, In re, 86, 565, Camp & West v. McLin, 28. Canfield v. Gresham, 347. Cannon v. New Orleans, 361. Oantini v. Tillman, 403. Cantwell v. Missouri, 68, 70, 416. Capital City Dairy Co. v. Ohio, 401. Capitol City Light & Fuel Co. v. Talla- hassee, 564. Oapito v. Topping, 78. CASES CITED. [The figures refer to pages.] 767 Cardwell v. American River Bridge Co., 234. Carew v. Rutherford, 422. Carino v. Insular Government of Philip- pine Islands, 21. Oarleton v. Rugg, 578. Carlisle v. Goode, 758. Carmichael v. Adams, 626. Carolina, The, 159. Carolina Grocery Co. v. Burnet, 78. Carolina Nat. Bank v. State, 25. Carpenter v. Pier, 300. Carp V. Queen Ins. Co., 162. Oarr v. Brown, 592. Carr v. Gordon, 130, 131, 136. Carr v. Hood, 667. Carr v. State, 307, 365, 727. Carrau v. O'Calligan, 150. Carrithers v. Shelbyville, 547. Carroll v. Campbell, 564. Carroll v. Greenwich Ins. Co., 551. Carroll v. Wright, 759. Carruth v. Taylor, 716. Carson v. Carson, 736. Carson v. Smith, 339: Carson v. Thompson, 756. Carstairs v. Cochran, 446. Carter v. Colby, 398. Carter v. Commonwealth, 90. Carter v. State, 26, 27, 365. Carter v. Texas, 556. Carton v. Secretary of State, 51. Casey v. Cincinnati Typographical Un- ion No. 3, 420, 422. Casinello, 'ES parte, 400. Cass County v. Sarpy County, 67. Cass Farm Co. v. Detroit, 584. Cassidy v. Sullivan, 625. Castle V. Persons, 591. Castro V. De Uriarte, 126. Oathcart v. Comstock, 508. Catlin V. Hull, 452. Cavendish, In re, 84. Cawley v. People, 675. Cedar Rapids Water Co. v. Cedar Rap- ids, 414. Central Bank of Georgia v. Little, 357. Central Branch Union Pac. B. Co. v. Atchison, T. & S. F. B. Co., 469^. Central Branch Union Pac. R. Co. v. Smith, 65. Central Bridge Corp. v. Abbott, 483. Central Bridge Corp. v. Lovcell, 492. Central Grain & Stock E^ch. v. Board of Trade, 150. Central of Georgia R. Co. v. Alabama R. Commission, 88, 98. Central of Georgia R. Co. v. Macon, 576. Central of Georgia R. Co. v. Railroad Commission of Alabama, 36, 413, 545, 546, 571, 589. Central of Georgia R. Co. v. Wright, 153, 582. Central Ohio Salt Co. v. Guthrie, 431. Central Pac. R. Co. v. California, 450. Central B. Co. v. State Boai-d of As- sessors, 462, ■768 CASES CITED. [The figures refer to pages.] Central R. of New Jersey v. Jersey City, 29. Central Trust Co. v. Citizens' St. R. Co. of Indianapolis, 187. Central Trust Co. V.Milwaukee St. R. Co., 695. Central Union Tel. Co. v. Columbus Grove, 473, 475. Chadwick v. Kelly, 64. Chae Chan Ping v. B. S., 393. ChafEee's Appeal, 444. Chambers v. Baltimore & O. R. Co., 293. Chambers v. Gilbert, 579. Champion v. Ames, 232. Chandler v. St. Louis & S. F. R. Co., 189. Chandler Coal Co. v. Sams, 417. Chanler v. Kelsey, 738. Chapman, In re, 199, 703. Chapman v. Barney, 164. Chapman v. Chapman, 599. Chapman v. Douglas County, 604. Chapman v. Oshkosh & M. K. Co., 492, Chapman v. Phoenix Nat. Bank, 575. Chapman v. U. S., 346. Charge to Grand Jury, In re, 217. Charles v. Marion, 587. Charles E. Wiswall, The, v. Scott, 237. Charles J. Off & Co. v. Morehead, 550, 566, 570. Charles River Bridge v. Warren Bridge, 563. 564, 731. Charleston Natural Gas Co. v. Lowe, 480. Charlotte, C. & A. R. Co. v. Gibbes, 553. Ohase v. Chase, 30O. Chase v. Miller, 649. Chase v. Trout, 582. Chastang v. State, 609, 687. Chattanooga Foundry & Pipe Works v. Atlanta, 243, 244. Chavez, In re, 21. Cheatham v. Evans, 185. Cheever v. Wilson, 298. Cherokee Tobacco, The, 125. Chesapeake Stone Co. v. Moreland, 68, 477. Chesapeake & O. Fuel Co. v. U. S., 238, 240, 241. Chesapeake & O. R. Co. v. Com., 557. Chesapeake & O. R. Co. v. Miller, 740. Chesapeake & O. R. Co. v. Walker, 475. Chesebrough v. San B'rancisco, 67. Cheshire County Tel. Co. v. State, 466. Ohestatee Pyrites Co. v. Cavenders Creek Gold Min. Co., 473. Chiapella v. Brown, 222. Chicago, B. & Q. R. Co. v. Chicago, 470, 586, 595. Chicago, B. & Q. R. Co. v. Illinois, 389, 390. , Chicago, B. & Q. R. Co. v. Illinois Drainage Com'rs, 436. Oliicago, B. & Q. R. Co. v. Iowa, 413, Chicago, B. & Q. R. Co. v. Nebraska, 737. Chicago, B. & Q. R. Co. v. State, 596. Chicago City R. Co. v. Chicago, 578. Chicago, M. & St. P. R. Co. v. Mason, 485. Chicago, M. & St. P. R. Co. v. Minneso- ta, 98. Chicago, R. I. & P. B. Co. v. Eaton, 408. Chicago, R, I. & P. R. Co. v. Ludwig, 743. Chicago, R. I. & P. R. Co. v. McGlinn, 277. Chicago, R. I. & P. R. Co. v. State, 547, 551, 565, 573. Chicago, R. I. & P. R. Oo. v. Swanger, 558, 743. Chicago, S. F. & C. R. Co. v. McGrew, 503. Chicago, St. P., M. & O. R. Co. v. Doug- las County, 389'. Chicago Union Traction Co. v. Chicago, 375. Chicago Union Traction Co. v. State Board of Equalization, 553. Chicago Wall Paper Mills v. General Paper Co., 428. Chicago, W. & V. Coal Co. v. People, 420, 428, 430, 431. Chicago & A. R. Co. v. Carlinville, 251. Chicago & A. R. Co. v. Wigging Ferry Co 296 Chicago & E. R. Co. v. Dresel, 49a Chicago & E. R. Co. v. Jacobs, 498. Chicago & G. T. R. Co. v. Wellman, 63. Chicago & N. W. R. Co. v. Puller, 406. Chicago & N. W. R. Co. v. Langlade Co., 309. Chicago & N. W. R. Co. v. Whitton, 164, 195. Chicago & N. W. R. Co. v. Williams, 557. Chicago & W. I. R. Oo. v. Ayres, 492. Chicago & W. I. R. Co. v. Guthrie, 603. Chicot County v. Davies, 349, 380. Chieves v. U. S., 214. Childs V. Merrill, 688. Ohiles V. School Dist. of Buckner, 605. Chin Yan, Ex parte, 518. Chisholm v. Georgia, 34, 46, 168. Chrisman v. Brookhaven, 555. Christ Church v. Philadelphia County, 745. Christianson v. Pioneer Furniture Co., 618. Christmas v. Russell, 297, 300. Christy v. Elliott, 433. Christy v. Kingfisher, 99. Chrystal v. Macon, 248. Church of Holy Trinity v. U. S., 393. Chy Lung v. Freeman, 228. Cigar Makers' International Union v. Goldberg, 575. Cincinnati Gazette Co. v. Timberlake, 652, 664. Cincinnati, H. & D. R. Oo. v. Sullivan, 406. Cipciunati, I. & W. R. Oo. v. Conuers- ville, 388, 469, CASES CITED. [The figures refer to pages.] 769 Cincinnati, N. O. & T. P. R. Oo. v. Com., 5S1. Cincinnati, P. B. S. & P. Pacliet Co. v. Bay, 238. Cincinnati, P. B. S. & P. Packet Co. v. Catlettsburg, 361. Cincinnati, W. & Z. R. Co. v. Clinton County Com'rs, 374. Cisco V. Roberts, 225. Cissel V. McDonald, 164. Citizens' Bank of Louisiana v. Board of Assessors for Parish of Orleans, 671. Citizens' Gas & Mining Co. v. Elwood, 564. Citizens' Sav. Bank v. Owensboro, 454. Citizens' Sav. & Loan Ass'n v. Topeka, 72, 368, 458. City Council of Abbeville v. Leopard, 396. City Council of Anderson v. O'Donnell, 711. City Council of City & County of Den- ver V. Board of Com'rs of Adams County, 80. City of Americus v. Perry, 513. City of Atchison v. Bartholow, 60. City of Athens v. Long, 460. City of Atlanta v. Chattanooga Foun- dry & Pipe Works, 243, 244. City of Aurora v. Schoeberlein, 88. City of Austin v. Oahill, 730. City of Baltimore v. Bonaparte. 94. City of Baltimore v. Hussey, 453. City of Baltimore v. Radecke, 438. City of Baltimore v. State, 69, 80, 87, 511. City of Baltimore v. Ulman, 758. City of Baton Rouge v. Butler, 375. City of Beardstovyn v. Virginia, 77. City of Beatrice v. Wright, 59, 583. City of Belleville v. St. Clair County Turnpike Co., 422, 435, 439. 570, 586. City of Bloomingtou v. Heilaud, 679, 694. City of Bloomington v. Wahl, 519. City of Brooklyn v. Nassau Electric R. Co., 405. City of Buffalo v. Linsman, 404. City of Buffalo v. Reavey, 249. City of Burlington v. Bumgardner, 467. City of Burlington v. Kellar, 518. City of Cambridge v. Boston, 89. City of Carbondale v. Wade, 732. City of Centralia v. Smith, 404. City of Champaign v. Harmon, 515. City of Chicago v. Cook County, 513. City of Chicago v. Gunning System, 425. Oity of Chicago v. Knobel, 574. City of Chicago v. McDonald, 423. City of Chicago v. Netcher, 400. City of Chicago v. O'Brien, 423. Oity of Chicago v. Openheim, 409. City of Chicago v. Pulcyn, 495. City of Chicago v. Reeves, 50. City of Chicago v. Rumpff, 519. City of Chicago v. Taylor, 495. City of Chicago v. Wells, 572, 577, 584. Bl.Const.L.(3d.Ed.) — 49 City of Cleveland v. Cleveland City, 742. City of aeveland v. U. S., 746. City of Corinth v. Crittenden, 398. City of Covington v. Covington Gas- light Co., 443. City of Covington v. Kentucky, 741, 744. City of Creston v. Nye, 698. Oity of Cumberland v. Willison, 494. City of Danville v. Noone, 564. City of Delphi v. Hamling, 514. Oity of Denver v. Bach, 552. Oity of Des Moines v. Keller, 433. City of Detroit v. Daly, 486. City of Detroit v. Detroit, Citizens' St. R. Co., 742. City of Detroit v. Detroit & H. P. Road Co., 731, 741. City of Detroit v. Rush, 649. City of East Portland v. Multnomah County, 459. City of Elkhart v. Murray, 407. City of Emporia v. Volmer, 686. City of Evansville v. State, 87, 329, 514, 674. Oity of Ft. Madison v. Ft. Madison Water Co., 730. City of Geneva v. Geneva Tel. Co., 397. City of Glasgow v. Bazan, 403. City of Grand Rapids v. De Vries, 563. City of Hartford v. Maslen, 511. City of Helena v. Kent, 423. City of Hudson v. Thome, 564. Oity of Indianapolis v. Bieler, 221. City of Indianapolis v. Central Trust Co., 742. Oity of Indianapolis v. Consumers' Gas Trust Co., 728. City of Jackson v. Williams, 472. City of Janesville v. Milwaukee & M. R. Co., 515. City of Joplin v. Leckie, 514. City of Knoxville v. Knoxville Water Co., 742. Oity of Laurens v. Anderson, 552. City of Laurens v. Elmore. 250. City of Leavenworth v. Ewing, 248. City of Lexington v. McQuillan's Heirs, 442. City of Lexington v. Thompson, 60. Oity of London v. Wood, 57. City of Los Angeles v. I>os Angeles City Water Co., 722, 728i, 742. City of Louisville v. Com., 371. Oity of Louisville v. Roberts, 710. City of Madison v. Madison Gas & Electric Co., 415. City of Madison v. Wade, 649. City of Marion v. Robertson, 424. City of Maysville v. Wood, 516. City of Memphis v. Bnsley, 466. Oity of Memphis v. Memphis Water Co., 562. City of Minneapolis v. Janney, 368, 456, 457. City of Mobile v. Phillips, 252. Oity of Mobile v. Yuille, 425. 770 CASES CITED. [The figures refer to pages.] City of Nashville v. Bank of Tennessee, 450. City of Nashville v. Lrlnck, 530. City of New Castle v. Cutler, 249. City of New London v. Miller, 441. City of New Orleans v. Davidson, 463. City of New Orleans v. Faber, 600. City of New Orleans v. Houston, 744. City of New Orleans v. Kaufman, 462. City of New Orleans v. Murat, 559. City of New Orleans v. New Orleans Waterworks, 735. City of New Orleans v. People's Ins. Co., 466. City of Newton v. Lewis, 728. City of New York, In re, 585, 586, 746. City of New York v. Brown, 423. City of New York v. Miln, 435. City of New York v. M. Wineburgh Ad- vertising Co., 439. City of New York v., New York City R. Co., 80. City of Norfolk v. Norfolk Landmark Pub. Co., 659. City of Oak Cliff v. State, 372. City of Ottumwa v. City Water Supply Co., 189. City of Paterson v. Society for Estab- lishing Useful Manufactures, 507. City of Pekin v. Brereton, 491. City of Perry v. Davis & Younger, 585. City of Philadelphia v. Fox, 374, 506, 507, 516, 743. City of Philadelphia v. Lombard & S. St. Pass. R. Co., 374. City of Philadelphia v. Wards, 404. City of Pittsburg v. First Nat. Bank, 447. City of Portland v. Bangor, 538. City of Portland v. Meyer, 600. City of Redlands v. Brook, 757. City of Rochester v. West, 424. City of Rome v. Whitestown Water- works Co., 480. City of Rushville v. Rushville Natural Gas Co., 480, 742. City of St. Charles v. Stookey, 190. City of St. Louis v. De Lassus, 397. City of St. Louis v. Dorr, 490. City of St. Louis v. Eagle Packet Co., 361. City of St. Louis v. Fischer, 404. City of St. Louis v. Gloner, 404, 538. City of St. Louis v. Karr, 537. City of St. Louis v. McCaun, 411. City of St. Louis v. Marchel, 603. City of St. Louis v. Richeson, 570. City of St. Louis v. Schoenbusch, 398. City of St. Louis v. Shields, 64. City of St. Louis v. United Rys. Co., 745. . . „ City of St. Louis v. Wiggins Ferry Co., 224. City of St. Louis v. Wortman, 252. City of St. Paul v. Haughbro, 405. City of St. Paul v. Schleh, 520. City of Salem v. Maynes, 396. City of San Antonio v. Gould, 386. City of Seattle v. Hurst, 737. City of Seattle v. Smyth, 416. City of Seymour v. JeflEersonville, M. & I. R. Co., 485. City of Sherman v. Langham, 736. City of Shreveport v. Levy, 519, 531. City of Springfield v. Edwards, 77. City of Springfield v. Smith, 729. City of Talladega v. Fitzpatrick, 398, 403. City of Terre Haute v. Evansville & T. H. K. Co., 80, 738. City of Terre Haute v. Farmers' Loan & Trust Co., 26. City of Toledo, The, 157. City of Topeka v. Gillett, 370. City of Utica v. Churchill, 448. City of Valparaiso v. Hagen, 480. City of Vicksburg v. Vicksburg Water- works Co., 741. City of Watertown v. Rodenbaugh, 552. City of Westport v. MulhoUand, 729. City of Zanesville v. Zanesville Tel. & Tel. Co., 93. City R. Co. V. Citizens' St. R. Co., 728, 731. City Street Imp. Co. v. University of California, 352. City & County of San Francisco v Mackey, 465, 466. City & County of San Francisco v. Western Union Tel. Co., 445, 448. Civic Federation v. Salt Lake County, 368. Civil Rights Cases, 548. Claflin V. McDermott, 298. Clapp V. Hong, 592. Claremont R. & Lighting Co. v. Putney, 475. Clarence Tp. v. Dickinson, 59. Clare v. State, 67. Clark V. Barnard, 170. Clark V. Bever, 188, 195. Clark V. Guy, 147. Clark V. Kansas City, 549. Clark V. Mitchell, 572. Clark V. Nash, 476, 481. Clark V. Rochester, 441, 444. Clark V. Russell, 408. Clark V. State, 539. Clark V. Tltusville, 552. Clark V. Washington, 374. Clark V. Wells, 190. Clarke, Ex parte, 650. ,Clarke v. Philadelphia, W. & B. R. Co., 247. Clarke v. Rogers, 375. Clarksburg Electric Light Co. v. Clarks- burg, 728, 731, 735. Claussen v. Luverne, 26. Claybrook v. Owensboro, 555. Clear Creek Water Co. v. Gladeville Imp. Co., 482. Clearwater Mercantile Co. v. Roberts, Johnson Rand Shoe Co., 591. Cleland v. Anderson, 421, 430. CASES CITED. [The figures refer to pages.] 771 Clemens v. Belford, 266. Clement v. Babbach, 579. Cleveland, In re, 338. Cleveland v. Clements Bros. Const. Co.. 416. Cleveland, C, C. & St. L. R. Co. v. Back- us, 546, 570. Cleveland, C, C. & St. L. R. Co. v. Feight, 489. Cleveland, C, C. & St. L. E. Co. v. Por- ter, 554. Cleveland, etc., R. Co. v. Illinois, 231. Clifford V. Heller, 315, 322. Clifford V. U. S., 28. Clinton Bridge, In re, 126. Clinton v. Englebrecht, 142. Close V. Potter, 748. Cloud V. U. S., 115. Clyde V. Railroad Co., 172. Coal Co. V. Blatchford, 165. Coal-Float v. Jeffersonville, 518. Coaticook v. Lothrop, 412. Cocheco Mfg. Co. v. Strafford, 625. Cochran v. Preston, 424. Coe V. Errol, 248, 360. Coeur D'Alene Consol. & Min. Co. v. Miners' Union of Wardner, 420, 422. Coffeyville Vitrified Brick & Tile Co. v. Perry, 421. Coffin V. Coffin, 344, 625. Coggeshall v. Des Moines, 649. Cohen v. Virginia, 34, 173, 276. Cohn V. Townsend, 547. Cole V. La Grange, 454, 458. Cole V. Van Ostrand, 748. Coleman v. Board of Education of Emanuel County, 376. Coler V. Board of Com'rs of Stanly Coun- ty, 151. Collection of Poll Tax, In re, 681. Collector v. Day, 451. Collet v. Collet, 257. Collier & Cleveland Lithographing Co. V. Henderson, 365. Collin County Nat. Bank v. Hughes, 152. Collins V. Henderson, 80, 352. Collins V. State, 683. Collins V. U. S., 128. Colon V. Lisk, 579. Colorado Fuel & Iron Co. v. Southern Pac. R. Co., 93. Colson V. Lewis, 166. Columbia Ave. Savings Fund, Safe De- posit, Title & Trust Co. v. Dawson, 578, 732. Columbia Val. R. Co. v. Portland & S. R. Co., 153. Columbia Wire Co. v. Freeman Wire Co., 37. Columbus Southern R. Co. v. Wright, 553. Columbus Waterworks Co. v. Long, 473. Comer v. Bankhead, 541. Comer v. Burton-Lingo Co., 428. Comer v. Folsom, 459. Commerce, The, 159. Commercial Electric Light & P. Co, v. Tacoma, 728. Commercial Nat. Bank v. lola, 368. Com'rs, etc., of Northern Liberties v. Northern Liberties Gas Co., 519. Com'rs of Central Park, In re, 479. Com'rs of Leavenworth County v. Hig- ginbotham, 382. Com'rs of Sinking Fund v. George, 86. Com'rs of Union Drainage Dist. No. 1 V. Smith, 587. Common Council of Detroit v. Board of Assessors, 69. Com. V. Abrahams, 669. Com. V. Alger, 388. Com. V. Allegheny County Com'rs, 33^3. Com. V. Atlantic Coast Line R. Co., 61, 407. Com. V. Ralph, 80. Com. V. Barker, 27. Com. V. Barner, 678. Com. V. Bavarian Brewing Co., 429. Com. V. Beatty, 416. Com. V. Bonnell, 417. Com. V. Boston Advertising Co., 424, 490. Com. r. Broad St. Rapid Transit St. R. Co., 469. Com. V. Brown, 419, 453. Com. V. Campbell, 438. Com. V. Carter, 402. CCm. V. Caton, 58. Com. V. Certain Intoxicating Liquors, 403. Com. V. Clark, 81, 550, 552. Com. V. Cleary, 691. Com. V. Collier, 93. Com. V. Curren, 422. Com. V. Dana, 513. Com. V. Davidson. 684. Com. V. Davis, 682. Com. V. Dean, 376. Com. V. Densten. 601. Com. V. Duffy, 713. Com. V. Emmers, 400. Com. V. Essex Co., 87. Com. V. Fall Brook Coal Co., 465. Com. V. Finn, 410. Com. V. Fredericks, 517. Com. V. Fuller, 703. Com. V. Gaming Implements, 613. Com. V. Gardner, 713. Com. V. Gibbons, 594. Com. V. Gilbert, 434. Com. V. Graves, 714. Com. V. Green, 335. Com. V. Gregory. 218, 295. ; Com. V. Griest, 52. i Com. V. Haly. 26. Com. V. Hamilton Mfg. Co., 415. Com. V. Hare, 303. Com. V. Herr, 529. Com. V. Hilton, 294. Com. V. Hinds, 615. Com. V. Hitchings, 73. Com. V. Hunt, 422. Com. V. International Harvester Co., ^6. Com. V. Interstate Consol. St. R. Co., 413. Com. V. Keary, 219, 409, 643, 725. 772 CASES CITED. [The figures refer to pages.] Com. V. Kelley, 712. Com. V. Kiugsbury, 375. Com. T. Kneeland, 61, 581. Com. V. La Bar, 424. Com. V. Lancaster Sav. Bank, 208. Com. V. Lehigh Val. R. Co., 448, 462. Com. V. Lyon, 27. Com. T. McCormick, 702. Com. T. Mann, 462. Com. V. Martin, 71. Com. V. Mellet, 352. Com. V. Mintz, 411. Com. V. Moir, 514, 734. Com. T. Morrison, 447. Com. T. Murphy, 543. Com. V. ilyer, 249. Com. T. Norton, 420. Com. T. Patch, 400. Com. V. Patton, 371. Com. V. Pennsylvania Canal Co., 483. Com. V. People's Five Cent. Sav. Bank, 459, 464. Com. V. Perry, 418. Com. V. Peters, 700. Com. V. Phillips, 711. Com. V. Read Phosphate Co., 246. Com. V. Reineeke Coal Min. Co., 415. Com. V. Remmel, 403. Com. V. R. I. Sherman Mfg. Co., 29, 219. Com. V. Bellinger, 360. Com. V. Shafer, 90. Com. V. Shaleen. 292, 293. Com. V. Smith, 58. Com. V. Strauss, 427, 431. Ck)m. V. Vrooman, 414. Com. V. Waite, 402. Ck)m. V. Walsh's Trustee, 405. Com. V. Walter, 675. Com. V. Weir, 600, 734. Com. V. Westinghouse Electric & Mfg. Co., 448. ■Com. V. Wyatt, 707. , Com. V. Wyman, 713. Com. V. Zorambo, 691. Com. of Pennsylvania, In re, 537. Commonwealth Title Ins. & 'Trust Co. V. Cummings, 191. Compagnie Fraucaise de Navigation a Vapeur v. State Board of Health, 226, 3&9. Computation of Time, In re, 327. Comstock Mill. & Min. Co. v. Allen, 75. Conek v. Skeen, 343, 352. Confiscation Cases, 606, 727. Conklin v. United States Shipbuilding Co., 150, 152. Conley v. Woonsocket Inst., 618. Connecticut Mut. Life Ins. Co. v. Cush- man, '750. Connecticut Mut. Life Ins. Co. v. Sprat- ley, 743. Conner v. Elliott. 292. Conner v. New York, 734. Connolly v. Union Sewer Pipe Co., 244 427, 552. Conrades, In re, 611. Considine, lu re, 415. Consolidated Gas Co. v. Mayer, 546. Consolidated Gas Co. v. New York, 546. Consolidated Rendering Co., In re, 594, 610. Consolidated Rendering Co. v. Vermont, 84, 546, 610, 687. Constitutional Convention, In re, 49. Constitutionality of Substitute for Sen- ate Bill No. 83, In re, 496. Consumers' Gas Trust Co. v. Harless, 469. Continental Fire Ins. Co. v. Whitaker & Dillard, 551. Continental Securities Co. v. Interbor- ough Rapid Transit Co., 188. Continental Wall Paper Co. v. Lewis Voight & Sons Co., 238, 241. Continuing Appropriations, In re, 366. Contzen v. U. S., 259. Converse, In re, 595. Converse v. .aStna Nat. Bank, 724, 747. Converse v. Ayer, 603. Converse v. Mears, 186, 188. Conway v. Cable, 758. Conyers v. Commissioners of Roads & Revenues, 78. Cook v. Board of Chosen Freeholders of Middlesex County, 325. Cook V. Daugherty, 333. Cook V. Foley, 191. Cook V. Hart. 308. Cook V. Howland, 636. Cook V. Pennsylvania, 227. Cook V. Senior, 348. Cook V. State, 650. Cook County v. Healy, 80. Cooke V. Iverson, 95. Cooley V. Board of Wardens of Port of Philadelphia. 220. Coonradt v. Myers, 618. Cooper V. Ash, 464. Cooper V. Reynolds. 299. Cooper V. Telfair, 59. Cooper V. Utah Light & R. Co., 80. Co-operative Building & Loan Ass'n v. State, 610. Cooper Mfg. Co. v. Ferguson, 246. Coopersville Co-operative Creamery Co. V. Lemon, 99. Copenhaver, In re, 750. Copp V. Henniker, 623. Coquillard's Adm'r v. Bearss, 349, 351. Corbett v. Naylor, 344. Corbin v. Houlehan, 545. Corcoran v. Cambridge, 585. Cordova v. State, 373. Corfleld v. Coryell. 292. Corliss, In re, 106. Cornell v. Hichens, 602. Cornell University v. Fiske, 186. Corning v. Troy Iron & Nail Factory, 622. Corrigan v. Brown, 364. Oorrigan v. Kansas City, 554, 585. Corrigan Transit Co. v. Sanitary Dist. of Chicago, 221. Corry y. Baltimore, 582. CASES CITED. [The figures refer to pages.] 773, Corson v. Maryland, 249, Cory T. Carter, 555, 639. Cosier v. McMillan, 449. Cosmopolitan Club v. Virginia, 576, 739. Coster V. Tide-Water Co., 423. jCostigan t. Bond, 78. Cotting V. Kansas City Stock-Yards Co., 172. Coulthard t. Mcintosh, 29. Counselman v. Hitchcock, 689. County of Mobile v. Kimball, 220. County of Wayne v. Detroit, 79. County Seat of La Fayette County, In re, 89. Court of Honor v. Hutchens, 724. Coutieri v. New Brunswick, 370. Covington v. Buffett, 344. Covington & L. Turnpike Road Co. v. ■Sanford, 414. Cowardin v. Universal Life Ins. Co., 636. Cox, Ex parte, 374. Cox, In re, 685. Cox V. State, 320. Craig, In re, 144. Craig V. Flanagin, 618. Craig V. Missouri, 357. Craig V. United States Health & Acci- dent Ins. Co., 567. Crandall v. Nevada, 292, 449, 641. Crane, In re, 176. Crane's Will, In re, 516. Crauor v. School Dist. No. 2, 748. Cranor v. Volusia County Com'rs, 757. Cranson v. Smith, 204. Cranston v. Augusta, 396. Cravens v. Carter-Crume Co., 240, 241. Crawford v. Delaware, 489, 494. Crawford v. Eidman, 14. Crecelius v. Bierman, 662. Crescent City Gaslight Co. v. New Or- leans Gaslight Co.. 562. Crescent City Live-Stock Co. v. Butch- ers' Union Slaughterhouse Co., 300. Croly V. Board of Trustees of City of Sacramento, 98. Cronin v. Adams, 547. Crouise v. Cronise, 80, 736. Crook V. People, 743. Cross V. EJvans, 150. Crossman v. Lurman. 250. Grossman v. U. S., 21. Crosswell's Petition, In re, 538. Grouse, Ex parte, 626. Crowell V. Kandell, 178. Crowley v. Christensen, 402. Crowley v. Ellsworth, 396. Crowther v. Fidelity Ins., Trust & Safe- Deposit Co., 724. Crozer v. People, 459. Gi-uikshank v. Bidwell, 97. Crump V. Ligon, 428. Crump's Case, 421. Crutcher v. Kentucky, 249. C. Scheerer & Co. v. Deming, 64. Cullman v. Arndt, 295. Cumberland Telephone & Telegraph Co. v. Hickman, 76. Gumming v. County Board of Educa- tion, 555. Cummings v. Chicago, 153. Cummings v. Missouri, 673, 708, 709, 715. Cummings v. Union Blue Stone Co., 429. Cummings v. Wingo, 293. Cunningham v. Macon & B. R. Co., 171. Cunningham v. Sprinkle, 86, 317. Cunnius v. Reading School Dist., 592. Curran, In re, 487, 595. Curran v. Arkansas, 357. Curran v. Craig, 182. Currier v. Marietta & C. R. Co., 476. Curry v. Curry, 622. Curtis, Ex parte, 285. Curtis' Will, In re, 599. Cusic V. Douglas, 603. Czarra v. Board of Medical Sup'rs, 288. Czarra v. Board of Sup'rs of Dist. of Columbia, 732. Dapgett V. Colgan, 368. Daily Register Printing & Pub. Co. v. New York, 93. Daily v. State, 318. Dakota County v. Chicago, St. P., M. & O. R. Co.. 453. Dallas V. Fosdick, 555, 568. Dallemagne v. Moisan, 678. Dallis V. Griffln, 600. Dana, In re. 629. Danforth v. McCook County, 443. Daniel Ball, The, 221. Daniel v. Trustees Richmond, 295^ Daniels v. Homer, 579. Daniels v. State, 320. Danolds v. State, 727. Danville v. Hatcher, 642. Danville Rolling Mill Co., In re, 467. Darcy v. Allein, 560. Darcy v. Allen, 84. D'Arcy v. Ketchum, 298, 299. Darling v. Berry, 261. Darlington v. U. S., 471. Darrington v. Bank of Alabama, 172, 357. Darst V. People, 578. Dartmouth College v. Woodward, 738, 743. Dash V. Van Kleeck, 89. Dassler, In re, 542. Dastervignes v. U. S., 99, 287. Daughdrill v. Alabama Life Ins. & Trust Co., 464. Davenport, In re, 252. Davenport v. Cloverport, 555. Davenport v. Kleinschmidt, 564. Davenport Gas & Electric Ck). v. Daven- port, 562. Davidson v. Calkins, 150. Davidson v. Jennings, 618, 774 CASES CITED. [The figures refer to pages.] Davidson v. New Orleans, 570, 588. Davidson v. Richardson, 736, 747. Davidson v. Sadler, 600. Davidson v. State, 700. Davidson v. Witthaus, 606. Davis, In re, 346. Davis V. A. Bootli' & Co., 238. Davis V. Beason, 533. Davis V. Burgess, 537. Davis V. Burke, 680. Davis V. Gray, 171. Davis V. Massachusetts, 652. Davis V. Packard, 156. Davis V. Police Jury of Parish of Con- cordia, 124. Davis V. Southern E. Co., 232. Davis V. State, 26, 517, 088, 701, 714. Davis V. Supreme Lodge, Knights of Honor, 747. Davis Coal Co. v. Polland, 417. Davis' Estate, In re, 592. Davis & Rankin BIdg. & Mfg. Co. v. Caigle, 246. Day, In re, 340, 601. Day V. Micou, 719. Day V. Savadge, 57. Day Land & Cattle Co. v. State, 379. Deal V. Mississippi County, 368. Deatrick's Adm'r v. State Life Ins. Co., 293. Deavitt v. Washington County, 484. De Baca v. U. S., 259. Debbs, In re, 240. Debnam v. Southern Bell Telephone & Telegraph Co., 636. Debolt V. Ohio Life Ins. & Trust Co., 441. Debs, In re, 236, 240, 685. Decatur v. Paulding, 95, 121. De Chastellux v. Fairchild, 88. Decie v. Brown, 403. Deck's Estate v. Gherke, 334. Decuir v. Benson. 559. Deering v. York & C. R. Co., 66. Deering & Co. v. Peterson, 368. De Ferranti v. Lyudmark, 71, 721. De Geofroy v. Riggs, 22. De Giacomo, In re, 715. De Grazier v. Stephens, 293. Deininger, In re, 252. Delaplaine v. Chicago & N. W. R. Co., 492. Delaware, L. & W. R. Co. v. Frank, 240, 241. Delaware Railroad Tax, 248, 745. Delaware Surety Co. v. Layton, 316. Del Castillo v. McConnico. 59. De Lima v. Bidwell, 21, 259, 278. Delk V. State, 695. Delmas v. Merchants' Mut. Ins. Co., 721. De Loney v. State, 29. De Lovio v. Bolt, 160. Demarest v. New York, 743, 744. De Merritt v. Weldon, 70, 100. Denike v. Rourke, 452. Denison v. Crawford County, 351. Dennick T. Central R. Co., 185. Dennis v. Moses, 577. Denny, In re, 51. Denny v. McCabe, 599. Denny v. Mattoon, 597. Dent V. West Virginia, 409. Denver v. Hubbard, 562. Denver v. Porter, 185. Denver Power & Irrigation Co. v. Den- ver & R. G. R. Co., 481. De Pas V. Bidwell, 710. Deposit Bank of Owensboro v. Daveiss County, 454. Dequindre v. Willialns, 89. Des Moines City R. Co. v. Des Moines, 722. Des Moines St. R. Co. v. Des Moines B. G. St. R. Co., 562. Detroit City Ry. v. Mills, 67. Detroit, Ft. W. & B. I. R Co. v. Os- bom, 406. Detroit Nat. Bank v. Blodgett, 340. Detroit United Ry. v. Nichols, 190. Devanney v. Hanson, 633. Devine v. Board of Com'rs of Cook Coun- ty, 371. Devlin v. McAdoo, 608. DevoU V. Brownell, 687. De Walt V. Bartley, 649. Dewey v. Des Moines, 584. De Witt V. San Francisco, 383. Dexter v. Boston, 59. Dexter v. Raine, 455. De Zbranikov v. Burnett, 759. Diamond Match Co. v. Ojitonagon, 248. Diamond Rings, The, 21. Diamond State Iron Co. v. Husbands, 598. Dickenson v. Fitchburg, 501. Dickson, Ex parte, 304. Diepenbrock v. Superior Court of Sac- ramento County, 550. Dig, Ex parte, 539. Diggs v. Woleott, 181. Dille V. State, 696. Dillingham v. Hook, 726. Dillon V. Erie R. Co., 742. Dillon V. State, 682. Dimmit County v. Frazier, 368. Dingley v. Boston. 458, 482. Divina Pastora, The, 134. Dixon V. Porter, 446. Dixon County v. Halstead, 447. Doane, Appeal of, 359. Dobbins v. Brie County, 449. Dobbins v. First Nat. Bank of Peoria, 597. Dobbs V. U. S., 117. Dr. Miles Medical Co. v. Jaynes Drug Co., 242. Dr. Miles Medical Co. v. John D. Park & Sons Co., 242. Dodd V. Hart, 586. Dodge V. Mission Tp., Shawnee County, Kan., 454, 456. Dodge V. Woolsey, 164, ,722. Dodson V. State, 557. Doe V. Braden, 102. CASES CITED. [The figures reter to pages.] 775 Doe V. Hearick, 446. Doebler v. Com., 683. Doehla v. Phillips, 748. Domestic & Foreign Missionary Soc. v. Hinman, 181. Donaldson v. Harvey, 77. Donnellan, Ex parte, 552. Donnelly. State, 548. Donnersberger v. Prendergast, 383, 385. Donovan v. Pitcher, 291. Dooley v. Smith, 213. Doo Woon, In re, 306. Dorr V. U. S., 21, 259, 278. Dorsey v. Brigham, 637, 638. Dortic v. Lockwood, 629. Doss v. Board of Com'rs of Mermentau Levee Dist., 66. Doty V. Strong, 200. Doughty v. Somerville & E. R. Co., 497, 499. Douglas V. Kentucky, 735. Douglas V. People, 410. Douglas County v. Moores, 576. Douglas Park Jockey Club v. Grainger, 545. Douglass V. Harrisville, 460. Douglass V. State, 701. Dow V. Beidelman, 413. Dowdell, In re, 538. Dowling V. State, 620, 684. Downes v. Bidwell, 21, 117, 259. Downing v. Lewis, 430. Downs v. Blount, 605. Downs V. Swann, 535. Doyle V. Continental Ins. Co., 195. Dozier v. Wilson, 261. Draco, The, 161. Drady v. Polk County District Court, 90. Drayton, Appeal of, 363. Drayton, Ex parte, 438, 542. Dred Scott v. Sanford, 632. Drehman v. Stifle, 753. Drew V. Cass, 293. Drexel, Ex parte, 412. Dreyer v. Illinois, 678. Dreyer v. People, 702. Dreyfus v. Boone, 388, 561. Drinkall v. Spiegel, 304. Driver v. Western Union R. Co., 499. Droit d'Aubaine, In re, 123. Drucker v. Manhattan R. Co., 484, 491. Dubuque & S. C. R. Co. v. Richmond, 229, 233. Ducat v. Chicago, 295. Duffield V. Smith, 145. DufEeld V. Williamsport School Dist, 399. Duluth & I. R. Co. T. St. Louis County, 741. Dunbar v. American Telephone & Tele- graph Co., 432 Duncan, In re, 310. Duncan v. Lynchburg, 515, Duncan v. Missouri, 711. Duncan v. State, 246. Dundee Mort. Trust Inv. Co. v. School Dist. No. 1, Multnomah County, 464. Dundee Mort. & Trust Inv. Co. v. School Dist. No. 1, 463. Dunlap V. State, 733. Dunlap V. Toledo, A. A. & G. I. R. Co., 484, 602. Dunlap V. U. S., 100, 287. Dunne v. People, 397, 403. Dunn V. Stevens, 749. Dupree, Ex parte, 403. Durein v. Kansas, 642. Durfee v. Harper, 50. Durgin v. Minot, 482. Duryea v. Muse, 292, 643. Dust y. Oakman, 320, 321. Dyer v. Baltimore, 480. Dyer v. Tuskaloosa Bridge Co., 493. Dy«r V. Woods, 585. Dynes v. Hoover, 143, 145. Eakiu V. Raub, 59. Eames v. Whittaker, 661. East Canada Creek Electric Light & Power Co., In re, 473, 480. Eastern Band of Cherokees v. U. S., 126. Eastern Kentucky Coal Lands Corp. v. Com., 35U. Eastern Wisconsin R. & Light Co. v. Hackett, 518. East India Co. v. Sandys, 561. Eastling v. State, 556. Eastman v. McOarten, 760. East Saginaw Salt Mfg. Co. v. East Saginaw, 745. Eaton V. Boston, C. & M. R. Co., 490. Eaton & H. R. Co. v. Hunt, 338. E. Bement & Sons v. National Harrow Co., 242, 244. Eberle, In re, 294, Eckerson v. Des Moines, 35, 68, 70, 83, 310, 311, 352, 375, 506. Eckhart v. State, 74. Eckrich v. St. Louis Transit Co., 618. Economic Power & Const. Co. v. Buf- falo, 69. Eddy V. Eddy, 182. Edelstein v. Carlile, 604. Edgerton v. Huff, 475. Edler v. Edwards, 69. Bdmands v. Boston, 499. Edson v. Crangle, 579. Edwards v. Elliott, 619. Edwards v. Kearzey, 749. Edwards v. Railroad Co., 350. Edye V. Robertson, 208. Edye v. Robertson (head Money Cases), 228 Egan, In re, 664. Egan V. Chicago Great Western R. Co., 190. Egyptian Levee Co. v. Hardin, 458. Ehrlich v. Weber, 634. 776 CASES CITED. [The figures refer to pages.] Eight-Hour Bill, In re, 417. Eiugartner v. Illinois Steel Co., 293, 604. Einstein v. Raritan Woolen Mills, 726. Elfand v. Southern R. Oo., 550. Eliza Ann, The, 270. Elkins V. Chicago, 152. Elkins Electric R. Co. v. Western Maryland R. Co., 485. Elk V. Wilkins, 637. Ellard, In re, 59. Ellis V. Frazier, 465. Ellis V. Inman, Poulsen & Co., 237, 240, 241. Ellison V. Barnes, 344. Ellsworth, M'. N. & S. E. R. Co. v. Max- well, 500. Elmendorf v. Elmendorf, 591. Elmore v. Fields, 26. Elting V. Hickman, 367, 462. Elwell V. Comstock, 99. Emerson v. McNeil, 411. Emery, In re, 347, 687. Energia, The, 223. Enfield Toll Bridge Co. v. Hartford & N. H. R. Co., 483, 493, 731. English V. Oliver, 456. English V. People, 368. English V. State, 543, 680. ' ' Ensign v. Barse, 90, 605. Ensley Development Co. v. Powell, 352. Entick V. Carrington, 612. Epping V. Columbus, 78, 79, 80. Epps V. State, 697. Erb V. Morasch, 251, 405, 601. Erdman v. Mitchell, 419, 421. Erickson v. Des Sloines, 352. Erie R. Co. v. Steward, 486. Erie & J. R. Co. v. Brown, 485. Escanaba & L. M. Transp. Co. v. Chi- cago, 233. Esmond, In re, 145, 681. Espenson v. Koepke, 428. Estep V. Com., 607. Btchison V. Pergerson, 662. Evans v. Durango Land Co., 153. Evans v. Eaton, 260, 721. Evans v. Foster, 705. Evans v. Jordan, 267. Evans v. U. S., 602. Evansville & H. Traction Co. v. Hen- derson Bridge Co., 474, 485. Everett v. Independent School Dist., 151. Everett v. Union Pac. R. Co., 497. Evergreen Cemetery Ass'n of New Ha- ven V. Beecher, 479. Evers v. Hudson, 71, 352. Evey V. Mexican Cent. R. Co., 186. Ewell V. Daggs, 747. Ewing V. Pilley, 626. Exchange Bank Tax Cases, 758. Extradition Case, 303. Fair, In re, 14, 703. Fairbank v. U. S., 80. Fallbrook Irr. Dist. v. Bradley, 186, 376, o81. Fallsburg Power & Mfg. Co. v. Alex- ander, 476, 477. Fanning v. Gregoire, 222. Fargo V. Michigan, 247. Farmers' Loan & Trust Co. v. Chicago, P. & S. R. Co., 70. Farmers' Loan & Trust Co. v. Meridian Waterworks Co., 728. Farmers' Loan & Trust Co. v. Northern Pac. R. Co., 255. Farmers' Nat. Bank v. Jones, 171. Farmers' & Mechanics' Nat. Bank v. Dearing, 286. Farmers' & Merchants' Ins. Co. v. Dob- ney, 550. Farnham v. Sherry, 446. Farnsworth v. Lime Rock R. Co., 78. Farnsworth Loan & Realty Co. v. Com- monwealth Title Ins. & Trust Co., 602. Parrell v. U. S., 101. Parrelly v. Cole, 325, 342. Farrelly v. Woodfolk, 179. Farrington v. Tennessee, 738, 744. Farrow, In re, 130. Farrow v. State, 556. Farwell v. Cambridge, 501. Farwell v. Rockland, 734. Fayerweather v. Dickinson, 597. Federalist, The, 311. Federal, Lead Co. v. Swyers, 187, 188. Feizel v. Trustees of First German Soc. of M. E. Church, 533. Fellows V. Charleston, 424. Fellows V. Deuniston, 355. Fell V. State, 403, 732. Pelty V. Uhler, 455. Penn v. Holme, 191. Penton, Ex parte, 701. Fenton, In re. 596. Fenwick v. Gill, 70. Ferguson v. Gies, 549. Ferguson v. Landram, 65. Ferris v. Ooover, 202, 337. Pesler v. Brayton, 54. Fetter, In re, 302. Ficklen v. Shelby County Taxing Dist.^ 249. Fidelity Trust & Guaranty Co. v. Fowler Water Co., 516. Field V. Barber Asphalt Pav. Co., 239,. 241, 246. Field V. Clark, 97. Field V. Des Moines, 396. Field V. Gibbs, 298. Field V. People, 79. Fielder v. Missouri, K. & T. R. Co., 232. Fifeshire, The, 160. Fife V. State, 543. Fifth Ave. Library Soc. v. Hastie, 246. Fight V. State, 679. Fink V. Milwaukee, 700. Finlayson v. Peterson, 759. Finley v. Philadelphia, 449. Finley v. State, 700. CASES CITED. [The figures refer to pages.] 77T Fire Ass'n of Philadelphia v. New York, 557. Fire Department v. Helfenstein, 295. Fire Department of City of New York, V. Atlas S. S. Co., 424. Fire Department of City of New York V. Stanton, 636. Fire Department of West Troy v. Og- den, 606. Fire Extinguisher Mfg. Co. v. Graham, 266. First Church in Boston v. Boston, 499. First Nat. Bank v. Commonwealth, 448. First Nat. Bank v. Covington, 759. First Nat. Bank v. Douglas County, 405. First Nat. Bank v. Ewing, 185. First Nat. Bank v. Farwell, 448. First Nat. Bank v. Kentucky, 449. First Nat. Bank v. Yankton County, 19. 279. Fischer v. Neil, 154. Fischer v. St. Louis, 400, 404. Fisher v. McGirr, 403, 579, 613, 614. Fiske Y. People, 421. Fisk V. Police Jury, 735. Fite V. State, 87. l<'itts V. Atlanta, 403. Fitts V. McGhee, 169, 172. Fitzgerald v. Burrill, 14. Flagg V. Bradford, 26. Flagg V. Locke, 746. Flannery v. People, 594. Flavell's Case, 323. Flecten v. Lamberton, 366. Fleischmann Co. v. Murray, 187. Fleming v. Page, 117. Fleming v. Trowsdale, 94. Fleshman v. McWhorter, 617. Fletcher v. Peck, 70, 709, 730. Flinn v. State, 404. Flint River Steamboat Oo. v. Foster, 69, 628, 630. Flint & F. Plank Road Co. v. WoodhuU, 70, 85, 88. Florida v. Georgia, 29. Floumoy, In re, 325. Floyd V. State, 702. Flukes, In re, 293, 418, 545, 589. Folsom V. Asper, 749. Fong Yue Ting v. U. S., 22, 125, 393. Foote, Ex parte, 398, 405. Foote V. State, 707. Foppiauo V. Speed, 252. Ford V. State, 90, 398. Forest Products Co. v. Russell, 187. Forgay v. Conrad, 179. Forster v. Forster, 89, 758. Forsythe v. Hammond, 73. Forsythe v. XJ. S., 142. Ft. Leavenworth R. Co. v. Lowe, 277. Ft. Worth & R. G. R. Co. v. Downie, 492. Foster, Ex parte, 705. Foster v. Byrne, 749. Foster v. Daniels, 313. Foster v. Jones, 336. Foster v. Kansas, 403. Foster v. Master & Wardens of Port of New Orleans, 3581. Foster v. Morse, 630. Foster v. Neilson, 124, 125. Foster v. Chamberlain, 223. Foster v. Rowe, 444, 583. Foster-Milburn Co. v. Ohinn, 523. Fowler v. Lindsey, 173. Fowler v. Peirce, 328. Fowler v. Wood, 29. Fox, Ex parte, 271. Fox V. Mohawk & H. R. Humane Soc, 366, 574. Fox V. State, 252. Fox's Estate, In re, 5J1. France v. State, 99, 293, 642. Francis, In re, 593. Francis v. Taylor, 431. Francisco v. Chicago & A. R. Co., 190. Francois v. State, 557. Frank, Ex parte, 520. Frank v. Leopold & Feron Co., 181. Frank A. Menne Factory v. Harback,. 217. Franklin County Court v. Deposit Bank of Frankfort, 727, 740. Franklin v. Hancock, 584. Frank Waterhouse & Co. v. U. S., 596. Frantz v. Autry, 1, 52, 54, 312. Eraser v. McConway & Torley Co., 547. Fray v. Blackburn, 12. Frazee, In re, 403. Frazer v. Chicago, 493. Frederick County Com'rs v. Farmers' & Merchants' Nat. Bank, 466. Fred Macey Oo. v. Macey, 164. Freedmau v. Sigel, 451. Freeland v. Williams, 736. Freeman v. American Surety Co., 164. Fremont County v. Moore, 449. Fremont, E. & M. V. B. Co. v. Pening- ton County, 69. Fremont, E. & M. V. R. Co. v. Whalen, 498. French v. Davidson, 399. French v. French, 637. French v. State, 3. French v. State Senate, 93, 343, 345, 349, 708. Friend v. Levy, 89. Fritz, Ex parte, 434. Froelich v. Musicians' Mut. Ben. Ass'n, 430. Frorer v. People, 418, 425. Frost V. People, 579. Pry V. State, 409. Fugett V. State, 556. Fulco V. Schuylkill Stone Co., 123. Fuller V. Plymouth County Com'rs, 503. Funkhouser v. Spahr, 78, 80. Fvirman St., In re, 494. Gabbert -v. Chicago, B. I. & P. B. Co., 50, 52. Gabel v. Houston, 529. 778 CASES CITED. [The figures reler to pages.] Gage V. Chicago, 586. Gage V. Graham, 467. Gaines v. Fuentes, 193. Gaines v. Relf, 297. Gaines, v. Thompson, 95. Gale, Ex parte, (iS. Galpin v. Page, 298. Galveston, H. & S. A. R. Co. v. Gibson, 417. Galveston, H. & S. A. R. Co. v. Le Gierse 407. Galveston, H. & S. A. R. Co. v. State, 247. Gamble v. Rural Independent School Dist, 729. Gantly v. Ewing, 746, 750. Garbade v. State of Bremen, 57, Garcia t. Lee, 124. Gardemal v. McWilliams, 661. Gardina v. Board of Registrai-s of Jef- ferson County, 257, 639, 649. Gardner v. Collector, 114. Gardner v. Sharp, 163. Gardner v. State, 464. Garey v. St. Joe Min. Co., 741. Garfield v. U. S., 596. Garland, Ex parte, 673, 709, 715. Garland Novelty Co. v. State, 579. Garneau v. Poit Blakely Mill Co., 603. Garnett v. Jennings, 593. Garrigus v. State, 625. Garrison v. Hollins, 630. Garrison v. New York, 736. Garvin v. Daussman, 573. Garza v. State, 691. Gaskin v. Meek, 371. Gassies v. Ballon, 163. (Gaston V. Babcock, 625, 629. Gatch V. Des -Moines, 581. Gates V. Bucki, 181. Gates V. Hooper, 428. Gatewood v. North Carolina, 186, 398, 409. Gatti's V. Griffin. 600. Gaylord v. Sanitary Dist. of Chicago, 476, 477, 481. Gee Hop, In re, 260. Geer v. Connecticut, 294. Geiger v. Tacoma R. & Power Co., 141. Gelpcke v. Dubuque, 187. Gelsthorpe v. Purnell, 461. Gelston v. Hoyt, 101, 134, 179. Gemmer v. State, 524. General Electric Co. v. Wise, 242. General Oil Co. v. Grain, 26. Genesee Cbief, The, v. Fitzhugh, 158. Gentry v. Griffith, 348. Geofroy v. Riggs, 123. George v. Chicago, R. I. & P. R. Co., 578. , George Schuster & Co. v. Louisville, 460, 462. Georgia v. Stanton, 100, 111. Georgia v. Tennessee Copper Co., 25, 174. Georgia R. & Banking Co. v. Smith, 739. Georgia R. & Banking Co. v. Wright, 24, 553. Gerdan v. Davis, 359. Geren v. Gruber, 443. German Alliance Ins. Co. v. Van Cleave, 27. Germania Ins. Co. v. Wisconsin, 155. Getz V. Brubaker, 89. Gibbons v. Ogden, 34, 203, 216, 219, 221, 286, 399, 442. Gibbs v. McNeeley, 237, 240, 244. Gibbs V. Morgan, 372. Gibson, In re, 53, 78. Gibson v. Emerson, 334. Gibson v. Mississippi, 711. Gibson v. Templeton, 338. Gidley v. Lord Palmerston, 13. Gilbert v. American Surety Co., 189. Gildersleeve v. People, 627. Gilkeson v. Frederick Justices, 443, 461. Gillender v. New York, 484. Gillespie v. People, 421. Gillespie v. Pocahontas Coal Co., 187. Gillette v. Aurora Rys. Co., 474, 475, 485. Oilman v. Lockwood, 260. Gilman v. Philadelphia, 202, 234. Gilman v. Sheboygan, 457,, 462, 745. Gilmer v. Hunnicutt, 586. ; Gil V. Williams & Davis, 350. Giovanna, In re, 634. Giozza V. Tierman, 352. Gladney v. Sydnor, 752, 753. Glaser, In re, 176. Glaspell V. Jamestown, 93. Glass V. Blackwell, 300. Glenn, Ex parte, 702. Glidewell v. Martin, 349. Globe Elevator Co. v. Andrew, 220. Gloucester Ferry Co. v. Pennsylvania, 220. Glover v. State, 249. Glucose Refining Co. v. Chicago, 405. Godbe V. Salt Lake City, 280. Goddard, In re, 423. Goddard v. Chicago & N. W. R. Co., 408, 475. Goddard v. Lincoln, 617i Godden v. Hales, 85. Godfrey T. Bennington Water Co., 582. Goetze v. U. S., 21, 117, 259, 278. Golden v. Prince, 257. Goldfield Oonsol. Mines Co. v. Goldfield Miners' Union No. 220, 421. Golding V. Collector of Borough of Chambersburg, 465. Good V. Martin, 142. Goodale v. Fennell, 512. Goodall V. Tuttle, 261. Goodbub V. Hornung's Estate, 746. Goodcharles v. Wigeman, 418. Goode V. State, 710. Goodin, Ex parte, 733. Goodrich v. Detroit, 584, 585. Goodrich v. Fen-is, 592. Goodrich v. Mitchell, 565. Goodrich's Estate, In re, 68. Goodwin v. Young, 363. Goodyear v. Providence Rubber Co., 626. CASES CITED. [The figures refer to pages.] 779 Gordon, In re, 176. Gordon v. Appeal Tax Court, 744. Gordon v. Kerr, 125. Gordon v. State, 376. Gordon t. Wiachester Building & Ac- cumulating Fund Ass'n, 561. Goree v. State, 531. Gorman v. Sinking Fund Com'rs, SO. Gorrell v. Newport, 563. Gospel V. New Haven, 162. Gotcheus v. Matheson, 647. Gothard v. People, 410. Gougar v. Timberlake, 645. Gould V. Gould, 567. Governor of Georgia v. Madrazo, 174. Governor's Proclamation, In re, 326, 343. Gow V. Bingham, 391, 395, 535, Gowen v. Shute, 357. Grace, Ex parte, 6S5. Graff V. Ackerman, 446. Graham, Ex parte, 701. Graham v. Folsom, 727. Graham v. Greenville, 508. Graham v. B6berts, 71, 375. Graham v. St. Joseph Tp., 441. Grainger v. Douglas Park Jockey Club, 59, 68, 70, 437, 550. Grande Konde Electrical Co. v. Drake, 476. Grand Rapids & I. E. Co. v. Osborn, 65. Granniss v. Cherokee Tp., 756. Grant v. Gould, 144. Grant v. Grant, 736. Grant v. Dansdon, 316. Grant v. Phoenix Mut. Life Ins. Co., 179. Grant v. Secretary of State, 13. Gravenberg v. Laws, 191. Gray v. Building Ti'ades Council, 574. Gray v. Kimball, 579, 592, 614. Gray v. Pentland, 319, 672, 095. Gray v. U. S., 101. Grayson v. Virginia, 174. Greason v. Keteltas, 630. Great Falls Power Co. v. Great Falls O. D. R. Co., 479. Great Northern E. Co. v. Kalispell Lum- ber Co., 255. Great Southern Fire Proof Hotel Co. v. Jones, 164, 576. Greek-American Sponge Co. v. Richard- son Drug Co., 218. Greely v. Townsend, 337. Green, In re, 106. Green v. Biddle, 726. Green v. Com., 104. Green v. Savannah, 400. Green v. State Board of Canvassers, 51. Green v. State, 691. Green v. Van Busklrk, 179. Greencastle Tp. v. Black, 79. Greene v. James, 614. Greene v. State, 64. Greenough v. Greenough, 89. Greenville & O. R. Co. v. Partlow, 499. Greer v. Payne, 429. Gregory v. State, 339, 706. Grenada County Sup'rs v. Brogden, 67. Grether v. Wright, 448. Grey v. U. S., 265. Gribben, In re, 404. Gridley v. Blpomington, 423. Griebel v. State, 54. Griffln v. Coleman, 537. Griffin v. Mixon, 576. Griffin v. Rhoton, 80. Griffln v. Shreveport & A. R. Co., 480, GriiEn's Ex'r v. Cunningham, 56. Griffiths, Iflx parte, 94. Griggs V. State, 60. Griggsry Const. Co. v. Freeman, 466. Grimley, In re, 271. Grinad v. State, 340. Grinage v. Times-Democrat Pub. Co., 60, 67. Griner, In re, 273. Griner v. Thomas, 575. Grinky v. Wayne Probate Judge, 597. Grissell v. Housatonic R. Co., 408, 737. Griswold v. Bragg, 749. Griswold v. McGee, 599. Groel V. United Electric Co. of New Jersey, 590. Gross, In re, 147. Gross V. Rice, 537. Grover, Succession of, 617. Gubner v. McClellau, 369. Guckenheimer v. Sellers, 252. Guden, In re, 319. Guild V. Chicago, 376. Guilfoyle's Ex'r v. Maysville, 583. Guiterman v. Wishou, 604. Gulf, C. & S. F. R. Co. V. Fort Grain Co., 231. Gulf, C. & S. F. R. Co. V. Hefley, 37. Gulf, C. & S. F. R. Co. V. Miami S. S. Co 220 243 Gulf,' C. & S. P. R. Co. V. State, 432. Gulf & S. I. R. Co. V. Adams, 581, 742, 745. Gundliug v. Chicago, 152, 400, 583. Gunn, In . re, 346.' Gunn V. Barry, 721, 722. Gunn V. State, 530. Gunn V. Union R. Co., 546, 588. Gunter v. Atlantic Coast Line R. Co., 27, 151, 170. Gustavel v. State, 63. Guthrie Nat. Bank v. Guthrie, 372. Guy V. Baltimore, 246. Guy V. Board of Com'rs of Cumber- land County, 563, 600. H Habana, The, 177. Hacker v. Howe, 583. Hackley v. Geraghty, 224. Hadley-Dean Plate Glass Co. v. High- land Glass Co., 244, 427. Hagan v. Lucas, 181. Hagany v. Cohnen, 625. Hagar, Ex parte, 160. Hagar v. Reclamation Dist. No. 108, 580. 780 CASES CITED. [The figures refer to pages.] Hager v. American Nat. Bank, 186. Hager v. Kentucky Children's Home Soc, 366, 457. Hager v. Sidebottom, 314, 365. Hager v. Walker, 444. Hagood V. Southern, 171. Haight V. Gay, 333. Haight & Freese Co. v. Weiss, 164. Haile v. State, 543. Haines v. Levin, 629. Hair v. State, 713. Hale, In re, 610. Hale V. Everett, 529. Hale V. Henkel, 610. Hale V. Kenosha, 461. Hale V. State, 90. Hale V. Tyler, 191. Haley v. Clark, 87. Haley v. Sheridan, 27. Hall V. De Cuir, 231. Hall V. Dowling, 446. Hall V. Dunn, 565. Hall y. Perry, 760. Hall V. State, 28. Hallam v. Post Pub. Co., 666. Hallawell, Ex parte, 383. Hallinger v. Davis, 686. Halpiue v. Barr, 424. Halter v. Nebraska, 29. 71, 390. Halter v. State, 29, 30, 437, 439. Hamaguchi, Ex parte, 573. Ham V. McClaws, 72. Hamilton v. Carroll, 376. Hamilton v. Chouteau, 182. Hamilton v. Eno, 665. Hamilton v. Vicksburg, S. & P. R. Co., 234. Hamilton Gaslight & Coke Co. v. Ham- ilton, 732. Hamilton Nat. Bank v. American Loan & Trust Co., 79. Hamond v. Howell, 12. Hammond v. State, 678. Hammond v. Whittredge, 178. Hammond Beef & Provision Co. v. Best, 547. Hammond Packing Co. v. State, 594. 607. Hampton v. McConuel, 297. Hancock v. Norfolk & W. R. Co., 417. Hancock v. Singer Mfg. Co., 208. Hancock v. Yaden, 418. Handel v. Chaplin, 223. Hand Gold Min. Co. v. Parker, 481. Handley v. Palmer, 516. Handley's Estate, In re, 88, 89. Haney v. Gartin, 597, 605. Hanley v. Donoghue, 299. Hanley v. Kansas City Southern R. Co., 232. Haunahan v. State, 714. Hannibal & St. J. R. Co. v. Husen, 221, 226, 293, 400. Hannibal & St. J. R. Co. v. State Board of Equalization, 452. Hanover Nat. Bank v. Moyses, 287. Hanover Tp, v. Camp Meeting Ass'n^ 746. Hansford^. Barbour, 65. Hans V. Louisiana, 47, 160. Hanson v. Vernon, 442. Happel V. Brethauer, 316. Happy V. Mosher, 592. Harback v. Boston, 482. Hardee v. Brown, 248. Hardee v. Gibbs, 328. Hardenburgh v. Kidd, 94. Harder's Fireproof Storage & Van Co. v. Chicago, 352. Harding v. American Glucose Co., 432. Harding v. Stamford Water Co., 491. Hardy v. Atchison, T. & S. F. R. Co., 220. Hargraves Mills v. Harden, 246. Harley v. U. S., 28. Hrfrmison v. Ballot Com'rs, 56. Harmon v. Chicago, 222, 405. Harmon v. State, 99, 438. Harpendiug v. Haight, 95. Harper v. Commissioners of Elberton, 623, 625. Harper v. Com., 706. Harrigan v. Gilchrist, 618. Harriman v. Interstate Commerce Com- mission, 254. Harriman v. Menzies, 430. Harrington v. Atlantic & Pac. Tel. Co., 153. Harrington v. Pardee, 321. Harris v. Dennie, 227. Harris v. Hardeman, 298. Harris v. Harsch, 747. Harrison, Ex parte, 654. Harrison v. Baltimore, 399. Harrison v. Bush, 671. Harrison v. Morton, 178. Harrison v. Remington Paper Co., 185, 186, 746. Harrison v. Thomas, 67. Harrold v. Arrington, 101. Hart, Ex parte, 305. Hart V. Henderson, 758. Hart V. State, 60, 696. Hartford Bridge Co. v. Union Ferry Co., 69. Hartford Fire Ins. Co. v. Doyle, 195. Hartford Fire Ins. Co. v. Houston, 562. Hartford Fire Ins. Co. v. Perkins, 64. Hartman v. Greenhow, 452. Hartman v. Tresise, 491. Harton v. Avondale, 584. Hartranft's Appeal, 319. Hartung v. People, 713. Hartzell v. Com., 684. Harvey v. Aurora &, G. R. Co., 475. Harvey v. Elkins, 424. Harward v. St. Clair & M. Levee & Drainage Co., 467. Hastings County v. Pouton, 209. Hastings v. Haug, 613. Hathom v. Natural Carbonic Gas Co., 69. Hauck, In re, 384. I Hauenstein v. Lynham, 155. CASES CITED. [The figures refer to pagea.] 781 Havens & Geddes Co. v. Diamond, 219. Haverhill Bridge Proprietors v. Essex County Com'rs, 502. Haver v. Yaker, 124. Hawaii v. Mankichi, 21, 259. Hawkins v. Globe Printing Co., 663. Hawkins v. Roberts, 70, 575. Hawley, Ex parte, 226, 411, 547, Hawley v. Hurd, 636. Hawthorne v. Calef, 724. Hayburn's Case, 338. Hayden, Ex parte, 401. Hayes, E?x parte, 411. Hayes v. Anpleton, 519. Hayes v. Missouri, 549. Hayes v. Palmer, 306. Hayford v. Bangor. 474. Haymoud v. Haymond, 534. Haynes, In re, 385. Haynes v. State, 757. Haynes v. Thomas, 492. Hays V. Hays, 50. Hayward v. Board of Trustees of Red Cliff, 515. Head v. Amoskeag Mfg. Co., 423. Head Money Oases. 155. 208, 210, 393. Hedgman v. Board of Registration, 635. Heilbron's Estate, In re, 749. Hein v. Westinghouse Air Brake Co., 190. Helena Power Transmission Co. v. Spratt, 473. Hempsted v. Wiscoiisin Marine & Fire Ins. Co. Bank, 260. Hench v. Pritt, 476, 478. Henderson v. Broomhead, 662. Henderson v. New York. 228. Henderson v. People, 366. Henderson v. Spofford, 224. Henderson Bridge Co. v. Henderson, 581, 738, 744. Henderson's Distilled Spirits, 575. Hendrickson v. Eries, 363. Hendricks v. State. 66. Henley v. Myers. 747. Hennen, In re, 128. Hennington v. Georgia, 251. Henry v. Cherry, 523, 535, 573. Henry v. Chester. 442. Henry v. State, 320. Heuson v. Moore. 599. Hepburn v. EUzey, 163. Hepburn v. Griswold, 213. 286, 721. Hepburn v. Jersey City, 482. Herman Bros. Co. v. Nasiacos, 219. Herring v. Pugh, 575. Herring v. State, 65. Hertle, In re, 92, 99. Heth V. Radford, 582. Hewitt V. Charier. 409. Hewitt V. State, 65. Hlbbard v. People, 614. Hibben v. Smith, 585. Hibernia Savings & Loan Soc. v. San Francisco, 447. Hibler v. State, 302, 306. Hickman v. O'Neal, 340. Hickman v. Preferred Tontine Mercan- tile Co., 752. Hickory Marble, etc., Co. v. Southern R. Co., 217. Hicks V. Cleveland, 730. Higgins, In re, 422. High V. Shoemaker, 463. Highland Boy Gold Min. Co. v. Strlck- ley, 486. Hill, Ex parte, 509. Hill V. Bigge, 319. Hill V. Boyland, 345. Hill V. Territory, 280. Hill V. Tarver, 65. Hills V. Chicago, 77. Hinckley v. Schwarzschild & Sulzberger Co., 741. Hine, The, v. Trevor, 161. Hinson v. Lott, 248, 359. Hiss V. Baltimore & H. Pass. R. Co., 489. Hiss V. Bartlett, 345. Hitter v. German Roman Catholic St. Aloysius Soc, 533. Hoagland v. Sacramento, 513. Ho Ah Kow V. Nunan, 708. Hobbs, Ex parte, 305. Hobbs Mfg. Co. V. Gooding, 151. Hoboken v. Goodman, 547, 642. Hoch V. People, 686. Hodgdon v. Haverhill, 26. Hodgson V. Dexter, 14. Hodge V. Muscatine County, 583. Hodge V. Trustees of School Dist. No. 9 of Clarendon County, 757. Hodges V. Buffalo, 459. Hodgson V. Vermont, 680. Hoertz v. Jefferson Southern Pond Draining Co., 585. Hoffman v. Coster, 324. Hogau V. IT. S., 115. Hoge V. Magnes, 187. Hohenadel v. Steele, 594. Hoke V. Henderson, 572. Holden v. Hardy, 416, 573. Holden v. Minnesota, 'TIS. Holland v. Challen, 191. Holley V. Mix, 537. Hollingsworth v. Virginia. 48. Hollister v. State, 26, 469. Hollman, Ex parte, 419, 438, 550. HoUman v. Bennett, 9. Holly V. New York, 100. Holmberg v. Jones, 92. Holmes v. Holmes, 726. Holmes v. Jennison, 302, 355. Holt V. Indiana Mfg. Co., 149, 153, 448. Holt V. Somerville, 553. Holt V. Tennallytown & B. R. Co., 293. Holtzman v. U. S.. 423. Holyoke & South Hadley Falls Ice Co. V. Ambden, 253. Home Discount Co., In re, 426. Home Ins. Co. v. Augusta, 733, 746. Home Ins. Co. v. Morse, 195. Home of the Friendless v. Rouse, 745. Home Sav. Bank v. Morris, 64. 782 CASES CITED. [The figures refer to pages.] Hong Ten Chang, In re, 259. Hood V. Finch, 497. Hood V. Tharp, 588. Hooe V. Jamieson, 20, 164. Hook T. Payne, 182. Hooker v. Burr, 750. Hooker v. New Haven & N. Co., 489. Hooper v. California, 217. Hoover v. McChesney, 266, 611. Hope V. Deaderick, 507. Hope V. Johnson, 603. Hopkins, Appeal of, 464. Hopkins v. Faehant. 596, 637. Hopkins v. Jones, 721. Hopkins v. Ladd, 630. Hopkins v. U. S., 238. Hopper-Morgan Co., In re, 188. Hopson V. Murphy, 66. Horan v. Byrnes, 422. Hord V. State, 727. Home V. Green, 447. Horn Silver Min. Co. v. New York, 295. Horton v. City Council & City Treasurer of Newport, 375, 507, 511, 513. Horwich v. Walker-Gordon Laboratory Co., 552. Houck V. Southern Pac. R. Co., 557. Houck V. Wright, 428. Houk V. Board of Com'rs of Montgom- ery County, 095. Houlden v. Smith, 12. House Bill No. 203, In re, 650. Houseman v. Com., 76, 79. House of Reform v. Lexington, 68. Houseworth v. Stevens, 65. Houston V. Moore, 203, 274. Houston V. Williams, 339. Houston & T. O. R. Co. v. Dallas, 470. Houston & T. C. R. Co. v. Mayes, 233. Houston & T. C. R. Co. v. Texas, 357, 729. Hovelman v. Kansas City Horse R. Co., 728. Hovey v. Elliott, 594. Hovey v. State, 82, 352. Howard v. Fleming, 546. Howard v. Illinois Cent. R. Co., 215, 230. Howard v. Kentucky, 595. Howard v. Thompson, 661. Howard v. U. S., 153. Howard Sav. Inst. v. Newark, 447. Howell V. Miller, 172. Howell V. State, 224, 446. Howe & Davidson Co. v. Haugan, 150. HoxJe v. New York, N. H. & H. R. Co., 24. Hoyt V. People, 691. Hubbert v. Campbellsville Lumber Co., 94. Huber v. Martin, 576. Hudson V. Caryl, 626. Hudson County Water Co. v. McCarter, 577, 737. Huger V. South Carolina, 174. Hughes, Ex parte, 409. Hughes, In re, 49, 313. Hughes V. Com., 609. Hughes V. Murdock, 599. Hughes V. Pflanz, 304. Hughes V. State, 609. Huliug V. Kaw Val. R. & Imp. Co., 471, 586. Hull V. Miller, 380. Hull V. State, 750. Hultberg v. Anderson, 151. Humbird v. Avery, 65. Humboldt Lumber Mfrs. Ass'n v. Chris- topherson, 364. Hume V. Laurel Hill Cemetery, 439. Hume V. Rogue River Packing Co., 565. Humphreys v. State, 554. Hunckel v. VoneifE, 662. Hunnicutt v. Atlanta, 515. Hunsaker v. Wright, 464. Hunt V. Hunt, 736. Hunt V. Riverside Co-operative Club, 431. Hunt V. Searcy, 538. Hunt V. State, 349. Hunter v. Pittsburgh, 508, 570, 738. Huntington v. Central Pac. R. Co., 450. Huntington v. New York, 153. Huntress, The, 79. Hunziker v. Supreme Lodge K. P., 747. Hurford v. State, 249. Huron, In re, 90. Hurst v. State, 703. Hurtado v. California, 572, 6S0. Hurt V. Hollings worth, 191. Huse V. Glover, 360. Hutcheson v. Storrie, 584. Hutchings, Ex parte, 706. Hutchinson, Ex parte, 412^ Hyatt V. Myers, 626. Hylton V. U. S., 209. I Her T. Ross, 438, 563. Illinois Cent. E. Co. v. Copiah County, 737. Illinois Cent. R. Co. v. Illinois, 63, 229, 204, 364. Illinois Cent. R. Co. v. McKendree, 227. Illinois Cent. R. Co. v. Mississippi Rail- road Commission, 172. Illinois Life Ins. Co. v. Prewitt, 27. Illinois State Trust Co. v. St. Louis, I> M. & S. R. Co., 473. Illinois Wateh-Case Co. v. Elgin Nat.. Watch Co., 158. Imboden v. People, 607. I. M. Darnell & Son Co. v. Memphis, 248. Importers' & Traders' Nat. Bank v. Ly- ons, 189. Incurring State Debts, In re, 30. Independent School Dist. of Sioux City, Iowa V. Rew, 188. Indiana v. Kentucky, 29. Indiana v. Pullman Palace Car Co.,. 453. Indiana Mfg. Co. v. J. I. Case Thresh- ing Mach. Co., 242» CASES CITED. [The figures refer to pages.] 783 Indianapolis Cable St. R. Co. v. Citi- zens' St. R. Co., 562, 5ti5. Indianapolis Traction & Terminal Co. v. Kinney, 417. Indianapolis Union R. Co. v. Houlihani 417. Inez Min. Co. v. Kinney, 155. Inhabitants of Camden t. Camden Vil- lage Corp., 441. Inhabitants of Cheshire vj Berkshire County Com'rs, 459. Inhabitants of Yarmouth v. North Yar- mouth, 507. Inkster v. Carver, 67. Inman S. S. Co. v. Tinker, 360. Insurance Co. v. New Orleans, C36. Insurance Co. of North America v. Com., 218. International Bldg. & Loan Ass'n v. Hardy, 747. International Mercantile Marine Co. v. Stranahan, 61. International Postal Supply Co. v. Bruce, 166. International Text-Book Co. v. Lynch, 217. International Text-Book Co. v. Peter- son, 217. International Text-Book Co. v. Weis- singer, 418. International Trust Co. v. A. Leschen & Sons Rope Co., 246. Inter-Ocean Pub. Co. v. Associated Press, 429. Interstate Commerce Commission v. Ala- bama Midland R. Co., 98, 216, 255, 256. Interstate Commerce Commission v. Baird, 254. Interstate Commerce Commission v. Cin- cinnati, N. O. & T. P. R. Co., 98, 255. Interstate Commerce Commission T. Clyde S. S. Co., 256. Interstate Commerce Commission v. De- troit, G. H. & M. R. Co., 229. Interstate Commerce Commission v. Harriman, 203. Interstate Commerce Commission v. Lake Shore & M. S. R. Co., 98, 255. Interstate Commerce Commission v. Louisville & N. R. Co., 256. Interstate Commerce Commission v. Northeastern R. Co., 255. Interstate Commerce Commission v. Reichmann, 232. Interstate Commerce Commission v. Western New York & P. R. Co., 255. Interstate Stockyards Co. v. Indianapo- lis U. R. Co., 229. Inwood V. State, 685. lola V. Birnbaum, 512. Iowa Cent. Bldg. & Loan Ass'n v. Klock, 63. Iowa Cent. R. Co. v. Iowa, 644. Iowa Life Ins. Co. v. Eastern Mut. Life Ins. Co., 99. Iowa Lillooet Gold Min. Co. v. Bliss, 149. Ireland t. Mackintosh, 604. Iron Molders' Union v. AlHs-Chalmers Co., 422. Iron Mountain R. Co. v. Memphis, 722. Iroquois Transp. Co. v. De Laney Forge & Iron Co., 63, 223. Irvine, Ex parte, 689. Ivey V. State, 67. Ivinson v. Hance, 446. Ivy T. Western Union Tel. Co., 743. I Jack V. Kansas, 427, 593, Jack V. Weiennett, 442. Jackson, Ex parte, 265, 611. Jackson, In re, 430. Jackson v. Ashton, 165. Jackson v. Com., 698. Jackson v. Shawl, 373. Jackson v. State, 77. Jackson v. U. S., 637. . Jackson County v. Waldo, 500. Jackson Lumber Co. v. McCrimmon, 582. Jackson Min. Co. v. Auditor General, 360. Jacksonville & S. E. R. Co. v. Walsh, 498. Jacobs, In re, 437, 438, 439, 525, 577. Jacobs V. Clearview Water Supply Co., 473, 478, 480, 481. Jacobs Pharmacy Co. v. Atlanta, 642. Jacobson v. Massachusetts, 60, 535. Jacobson v. Wisconsin, M. & P. R. Co., 407. Jacoway v. Denton, 722, 724. Jacquette v. Hugunon, 2i98. Jaehne v. New York, 710. James, In re, 181. James v. Campbell, 267. James v. Rowland, 89. James Gray, The, v. The John Eraser, 224. Jamieson v. Indiana Natural Gas & Oil Co., 217. Jannin v. State, 409, 562. Janvrin, In re, 93. Jaques & Tinsley Co. v. Carstarphen Warehouse Co., 426. Jarvis, In re, 295. Jarvis v. State, 702. Jayne v. Loder, 242. J. B. Mullen & Co. v. Mosley, 579. Jefferson, In re, 610. Jeffersonville, M. & I. R. Oo. v. Esterle, 491. Jefferys v. Boosey, 363. Jenkins v. Collard, 324. Jenkins v. Ewin, 80. Jenkins v. Putnam, 296. Jenkins v. State, 6G3. Jenks V. Brewster, 151. Jenks V. Stump, 588. Jennes v. Landes,' 638. Jennings v. Big Sandy & C. R. Co., 231. Jennings v. Paine, 663. 784 CASES CITED. Jensen, In re, 456. Jetton V. University of the South, 152. Jewell V. Weed, 70. Jewett Car Co. y. Kirkpatrick Const. Co., 191. Jew Ho V. Williamson, 150, 545. Job V. Alton, 585. John D. Park & Sons Co. v. Hartman, 242. John Fraser, The, 224. John Jay, The, 161. Johns T. Press Pub. Co., 6G3. Johnson v. Bradley-Watkins Tie Co., 453. Johnson v. Charles D. Norton Co., 189. Johnson v. Crawford & Yothers, 189. Johnson v. Dobbins, 300. Johnson v. Duncan's Syndics, 723. Johnson v. Goodyear Min. Co., 418, 547. Johnson v. Great Falls, 67. Johnson v. Harrison, 384, 385. Johnson v. Parkersburg, 494. Johnson v. Sayre, 145. Johnson v. Shelter Island Grove & Camp-Meeting Ass'n, 424. Johnson v. Simouton, 402. Johnson v. Smith, 603. Johnson v. State, 702. Johnson v. Taylor, 759. Johnson v. Union Pac. R. Co., 253. Johnson v. U. S., 97. Johnson 'City Soutliern R. Co. v. South & W. R. Co., 475. Johnson County Sav. Bank v. Walker, 90. Johnson Drainage Dist., In re, 585. Johnson Pub. Co. v. Mills, 563. Johnson's Instate, In re, 64, 295. Johnston v. Old Colony R. Co., 492. Johnstown Cemetery Ass'n v. Parker, 97. Johnstown, I. & W. Turnpike Co., Pe- tition of, 473, 479. Jolly V. Terre Haute Drawbridge Co., 234. Jones, Ex parte, 463. Jones V. Board of Water Com'rs of De- troit, 442. Jones V. Byrne, 149. Jones V. Carter, 426, 562. Jones V. Gibson, 442. Jones V. Loving, 12. Jones V. Maher, 422. Jones V. Mutual Fidelity Co., 150, 185, 191. Jones V. Robbins, 686. Jones V. Root, 614. Jones V. Seward, 144. Jones V. U. S., 101, 190, 278. Joplin V. Southwest Missouri Light Co., 562. Jordahl v. Hayda, 422. Jordan v. Dobson, 267. Jordan v. Evansville, 642. Jordan v. State, 418. Joseph v. Bidwell, 548. Joyce V. Great Northern R. Co., 422. Judefind v. State, 530. [The figures refer to pages.] Judson, In re, 594. Juilliard v. Greenman, 213, 286. Julien V. Model Building, Loan & Inv. Co., 71. Juniata Limestone Co. v. Fagley, 462, K Kadderly v. Portland, 50, 52, 92, 310, 617. Kair, Ex parte, 416. Kaminitsky v. Northeastern R. Co., 406. Kamper v. Hawkins, 54. Kanaka Man, In re, 259. Kane v. Brie R. Co., 72, 417, 550. Kansas v. Colorado, 146, 173, 176, 279. Kansas v. U. S., 166. Kansas City v. Duncan, 585. Kansas City v. Union Pac. R. Co., 64. Kansas City, Ft, S. & M. R. Co. v. Thornton, 54. Kansas City, M. & B. R. Co. v. Flippo, 230. ■^ Kansas City Southern R. Co. v. State, 100, 253. Kansas Endowment Ass'n v. Kansas, 155. Kansas Pac. R. Co. v. Prescott, 447. Karasek v. Peier, 577. Karem v. U. S., 286. Karrahoo v. Adams, 102. Kauffman v. Wootters, 590. Kaufman v. Alexander, 383. Kaukauna Water Power Co. v. Green Bay & M. Canal Co., 178. K. V. Dyke Board of Niedervieland, 57. Keady v. Owers, 333. Keady v. People, 609. Keasy v. Bricker, 467. , Keating v. People, 691. Keen v. Waycross, 516. Keene v. Mould, 260. Keene Five Cent. Sav. Bank v. Reid, 189. Kehrer \. Stewart, 219, 246, 248. Keihl V. South Bend, 152. Keim v. U. S., 130. Keith V. Guedry, 730. Keith V. Woombell, 687. Keithsburg & B. R. Co. v. Henry, 499, 501. Kellam, In re, 537. Keller, In re, 304. Keller v. Corpus Christi, 396. Keller v. State, 77, 79. Kelley v. Great Northern R. Co., 215, 217, 221, 230, 551. Kelley v. Rhoads, 248. Kellogg V. Sowerby, 426. Kelly, Ex parte, 323. Kelly, In re, 277. Kelly V. Cowan, 92. Kelly V. Herrall, 90, 605. Kelly V. Pittsburgh, 580. Kelsey v. Kendall. 89. Kemmler, In re, 707. Kemp V. Monett, 518. CASES CITBD. [The figures reler to pages.] .785 Kemp V. Neville, 12. Kendall v. Fader, 746. Kendall v. U. S., 112, 121, Kenefick v. St. Louis, 67. Kennedy, Ex parte, 324. Kennedy v. Dr. David Kennedy Corp., 266. Kennedy v. Hudspeth, 734. Kennedy v. State Board of Registration, Kenneke, Ex parte, 434. Kennesaw Mills Co. v. Walker, 626. Kennett v. Chambers, 101. Kenneweg v. Allegany County Com'rs, 71, 650. Kenny v. Hudspeth, 80. Kent V. Bongartz, 672. Kentucky v. Dennison, 174, 303, 306. Kentucky v. Powers, 179. Kentucky Life Stock Breeders' Ass'n v. Hager, 368. Kentucky Railroad Tax Cases, 553, 582. Kentucky Union Co. v. Com., 759. Keokuk Northern Line Packet Co. v. Keokuk, 361. Kepner v. U. S., 21. Ker V. Illinois, 308. Kerrigan v. Force, 68, 370. Kerr v. Perry School Tp., 72. Kettle V. Dallas, 100. KeufEel v. Hoboken, 516. Keys Mfg. Co. v. Kimpel, 182. Kibbie Tel. Co. v. Landphere, 397. Kidd V. New Hampshire Traction Co., 547. Kidd V. Pearson, 403. Kiernan v. Multnomah County, 596. Kilboum v. Thompson, 202, 346. Kilgore v. Magee, 69. Kimball v. Grantsville City, 71, 352, 444, 470. Kimball v. Mobile County, 511. Kimmish v. Ball, 226. Kincaid v. Francis, 293. King, In re, 530. King V. Hatfield, 553. King V. Hopkins, 629. King V. Minneapolis Union R. Co., 498. King V. MtiUins, 584. King V. Phoenix Ins. Co., 722. King V. Portland, 461. King V. President, etc., of Dedham Bank, 87. King V. Boot, 651. King V. State, 681. King V. Young Tang, 58. Kingman v. Petitioners, 455. Kingsbury v. Anderson, 365. Kingsbury v. Nye, 52. Kinnear Mfg. Co. v. Carlisle, 189. Kinney v. Beverley, 576. Kinney v. Conant, 166. Kinsley v. Dyerly, 250. Kinston v. Loftin, 582. Kirby v. Harker, 399. Kirk V. Board of Health, 99, 399, 538. Kirk T. U. S., 166, 190. Bl.Oonst.L.(3d.Bd.)— 50 Kirkland t. State, 588. Kirkman v. Bird, 746. Kirtland v. Hotchkiss, 452, 640. Kiskaddon v. Dodds, 753. Kittinger v. Buffalo Traction Co., 70. Kleinschmidt v. Dunphy, 621. Klingel's Pharmacy v. Sharp & Dohme, 431. Knapp V. Thomas, 324. Knickerbocker Trust Co. v. Cremen, 746. Knight, In re, 259. Knight V. Shelton, 51, 80. Knight & Jillison Co. v. Miller, 429, 437. Knisely v. Cotterel, 526. Knowles, Ex parte, 337. Knowles v. U. S., 265, 654. Knox V. Board of Education, 555. Knox V. Lee, 213. Knox V. State, 537. Knoxville Iron Co. v. Harbison, 419. Knoxville Traction Co. v. McMillan, 584. Knoxville Water Co. v. Knoxville, 731, 742. Koehler v. Hill, 49. Kohl V. U. S., 471. Kohn V. Melcher, 293. Kolb V. Boonton, 249. KoUock, In re, 287. Kopel, In re, 303. Koser, Ex parte, 530. Koshkonong v. Burton, 89. Kraus v. Lehman, 68. Kreider v. Cole, 150. Kresser v. Lyman, 436. Krieger v. State of Bremen, 58. Kring v. Missouri, 710. Krueger v. Colville, 575. Krug, In re, 587. Kuback, Ex parte, 519. Kuchler v. Greene, 165. Kugadt V. State, 698. Kohn V. Morrison, 151. KuU V. KuU, 123. Kunzler v. Kohaus, 260. Kurtz V. Moffitt, 143. La Abra Silver Min. Co. v. U. S., 95, 153. Lace V. People, 80. Ladd, In re, 276. Ladd V. Holmes, 650. Lafayette, M. & B. R. Co. v. Murdock. 492, 500. Laflin v. Chicago, W. & N. R. Co., 501. Lahart v. Thompson, 600. Lahr v. Metropolitan E. R. Co., 484, 491- Lake Charles v. Roy, 375. Lake Drummond Canal & Water Co. v. Com., 745. Lake Erie, W. & St. L. R. Co. y. Heath, 624. 786 CASES CITED. [The figures refer to pages.] Lake Erie & W. R. Co. v. Watkins, 333, 603, 617. Lake Koen Navigation, Reservoir & Irr. Co. V. Klein, 472, 478, 480. Lake Shore & M. S. K. Co. v. Cincin- nati, S. & C. R. Co., 406. Lake Shore & M. S. R. Co. v. Ohio, 234, 890. Lake Shore & M. S. R. Co. v. Smith, 413, 435. Lamar v. Palmer, 466. Lamar v. Prosser, 65, 540, 678. Lamar v. State, .540. Lamb v. Lane, ©20. Lamb v. Powder River Live Stock Co., 589, 748. Lambert, In re, 538. Lambert, Ex parte, 600, 734. Lambertson' V. Hogan, 89. Lambrecht, In re, 715. Lammert v. Lidwell, 375. Lamoreaux v. Attorney General, 634. Lancaster v. Kennebec Log Driving Co., 481. Lance, In re, 594. Lancer v. Anchor Line, 230. Landberg v. Chicago, 559. Land, Log & Lumber Co. v. Brovpn, 509. Land V. State, 540. Lane County v. Oregon, 34. Lane v. Nelson, 760. La'neabier v. Fairbury, P. & W. R. Co., 530. Langberg v. Chicago, 71. Langdon v. People, 613. Lange, Ex parte, 704. Langenberg v. Decker, 83. Langford, In re, 403. Langford v. Ramsey County Com'rs, 496. Langley v. Augusta, 515. Langmuir v. Landes, 71. Lanier v. Gallatas, 340. La Ninfa, The, 126. Lanning v. Osborne, 152. Lansburgh v. District of Columbia, 71. Lantry v. Mede, 424. Lanyon v. Garden City Sand Co., 238. Lanz V. Randall, 258. Lapeyre v. U. S., 136. Lappin v. District of Columbia, 277, 438, 550. Large v. Consolidated Nat. Bank, 192. Lascelles v. Georgia, 307. Late Corporation of Church of Jesus Christ V. U. S., 279. Lauderdale County v. Foster, 183. Laura, The, 87, 122. Laurel Fork & S. H. R. Co. v. West Virginia Transp. Co., 737, 742. Laurel Hill Cemetery v. City and Coun- ty of San Francisco, 439. Laurel Oil & Gas Co. v. Galbreath Oil & Gas Co., 190. Lavalette v. U. S., 119. Lavrrance v. Bonn, 629. Lawrence, Ex parte, 347. Lawrence y. Louisville, 604. Lawrence v. Norton, 154. Lawrence v. Rutland R, Co., 418. Lawrence R. Co. v. Williams, 489. Lawton v. Steele, 390, 434. Leach v. Missouri Tie & Timber Co., 418. Leach v. Money, 612. League v. State, 679. League v. Texas, 603. Leahart v. Deedmeyer, 710. Leahy v. Dunlap, 630. Leavenworth Coal €o. v. Barber, 603. Leavenworth County Com'rs v. Miller, 82. Leavitt v. Morris, 538. Lebolt, In re, 2^1. Le Donne, In re, 538. Lee v. New Jersey, 180. Lee V. Tillotson, 628. Leedy v. Bourbon, 208. Leep V. St. Louis, I. M. & S. R. Co., 559. Leeper v. State, 99. 563. Leeper v. Texas, 573. Lee Sing, In re, 438. Lee Sing Par v. U. S., 634. Lees V. U. S., 687. Leffingwell v. Warren, 186, 188. Legal Tender Cases, 286. Legislative Adjournment, In re, 326. Lehew v. Brummell, 555. Lehigh Valley R. Co. v. Pennsylvania, 247. Lehman v. State, 125. Leigh V. Green, 584. Leighton v. U. S., 126. Leisy v. Hardin, 204, 219, 220, 251. Lellman v. U. S., 131. Le Louis, The, 269. Leloup V. Port of Mobile, 247. Lennon, In re, 153. Leutell V. Boston & W. St. R. Co., 489. Lent V. Tillson, 61, 588. Leonard v. Abner-Drury Brewing Co., 429. Leonard v. Bassindale, 412. Leslie v. St. Louis, 486. Lester v. State, 705. Levee Dist. No. 9 v. Farmer, 492. Levert v. Daily States Pub. Co., 651. Levin v. U. S., 80. Levner Engineering Works v. Kemp- . ner, 188. Levj;, Succession of, 443. Lewis, In re, 14. Lewis V, Brandenburg, 549. Lewis V. Garrett's Adm'rs, 627. Lewis V. Lewelling, 321. Lewis V. Northern Pac. R. Co., 551, 741. Lewis V. Pennsylvania R. Co., 601. Lewis V. State, 339. Lewis County v. Gordon, 480. Lewis Pub. Co. v. Wyman, 168. Lewiston Water & Power Co. v. Asotiu County, 466. Lexington Ave., In re, 371. License Cases, 250, 252. License Tax Cases, 435. CASES CITED. [The figures refer to pages.] Liddell T. Landau, 591. Lienemann v. Costa, 14. Ligan v. State, 706. Likins, In re, 60, 326, 343. Lima Gas C!o. v. Lima, 728. Lincoln y. Com., 490. Lincoln v. Haiigan, 381. Lincoln v. Smith, 403. Lincoln Bldg. & Sav. Ass'n v. Graham, 787 Lincoln County v. Luning, 170. Lindsay v. United States Sav. & Loan Ass'n, 89. Lindsley v. Natural Carbonic Gas Co., 61, 69, 472. Liuford v. Fitzroy, 705. Lippman v. People, 612. Li Sing V. U. S., 555. Lister r. Ferryman, 661. Litchfield v. Pond, 26, 439. Little River Tp. Reno County v. Board of Com'rs of Reno County, 729. Little Rock v. North Little Rock. 375. Little Rock & Ft. S. R. Co. v. McGehee, 498. Littleton v. Burgess, 733. Lively v. Missouri, K. & T. R. Co. of Texas, 463. Liverpool & L. Life & Fire Ins. Co. v. Massachusetts, 295. Live Stock Dealers' & Butchers' Ass'n v. Crescent City Live Stock Landing & S. Co., 561. Livingston v. Livingston, 760. Livingston v. New York, 496, 619, 625. Lochner v. New York, 416. Locke V. New Orleans, 710. Locker v. American Tobacco Co., 420. Locke's Appeal, 376. Lockington v. Smith, 119. Loder v. Jayne, 240, 241, 244. LoeflEner v. State, 697. Loewe v. Lawlor, 237, 240, 241, 420, 430. Logan V. Postal Tel. & Cable Co., 890. Logan V. Pyne, 564. Logan V. U. S., 642. Logan & Bryan v. Postal Telegraph & Cable Co., 68, 250, 678, 735. Logwood V. Memphis & C. R. Co., 557. Lohmeyer v. St. Louis Cordage Co., 60. Lohse Patent Door Co. v. Fuelle, 430, 571. Lombard v. West Chicago Park, 554. Lommen v. Minneapolis Gaslight Co., 618, 621. Londoner v. Denver, 583. Loney, In re, 199. Long V. McDowell, 25. Long V. The Tampico, 159. Long Island Water Supply Co. v. Brook- lyn, 484, 586. Longworth v. Sturges, 340. Looker v. Mayuard, 741. Look Tin Sing, In re, 260, 684, 638. Lord George Gordon, 671. Lord V. Goodall, 222. Los Angeles City Water Co. v. Los An- geles, 514. Los Angeles County v. Spencer, 579. Lothrop V. Stedman, 66, 74, 88. Lottawanna, The, 160. Loughborough v. Blake, 276, 467. Louisiana v. Garfield, 166. Louisiana v. Jumel, 171. Louisiana v. Mississippi, 29, 283. Louisiana v. New Orleans, 723, 736. Louisiana v. Pilsbury, 750. Louisiana v. St. Martin's Parish, 512, 736. Louisiana v. Texas, 174. Louisiana Navigation & Fisheries Co. v. Doullut, 473. Louisiana State Board of Health v. Standard Oil Co., 467. Louisiana & A. R. Co. v. State, 407. Louisville v. Cumberland Tel. Co., 155. Louisville, C. & 0. R. Co. v. • Letsou, 164. Louisville Gas Co. v. Citizens' Gaslight Co., 562. Louisville, N. A. & C. R. Co. v. Louis- ville Trust Co., 164. Louisville School Board v. King, 576, 588. Louisville Trust Co. v. Cincinnati, 181. Louisville & N. R. Co. v. Alexander, 65. Louisville & N. R. Co. v. Bullitt County, 758. Louisville & N. R. Co. v. Central Stock- yards Co., 737. Louisville & N. R. Co. v. Eubank, 245. Louisville & N. R. Co. v. Interstate R. Co., 492. Louisville & N. R. Co. v. Kentucky, 233. Louisville & N. R. Co. v. Louisville, 472, 478, 485, 486. Louisville & N. R. Co. v. Palmes, 189. Louisville & N. R. Co. v. Schmidt, 593. Louisville & N. R. Co. v. Smith, 25. Louisville & T. Turnpike Road Co. v. Boss, 601. Louthan v. Com., 653. Love V. Jersey City, 734. Love V. Judge of Recorder's Court of Detroit, 403. Loverin & Brown© Co. v. Travis, 219, 643. Lovett V. West Virginia Cent. Gas Co., 502. Loving, Ex parte, 68. Low V. Austin, 246, 859. Lowe V. Com., 336. Lowe V. Summers, 346. Lowell V. Boston, 367, 454, 481. Lowery v. Board of Graded School Trustees, 67, 555. Lowrey v. Central Falls, 596. Loy V. Alston, 151. Ludington Water-Supply Co. v. Luding- ton, 562. Ludlam v. Ludlam, 635. Lufkin V. Lufkin, 66, 756. 788 CASES CITED. [The figures refer to pagea.l Lumbermen's Mut. Ins. Co. v. Kansas City, 408. Lung Wing Wun, Ex, parte, 64. Luse V. Rankin, 28. Luther v. Borden, 101, 117, 134, 312. Lutterloh v. Fayetteville, 738. Lutz T. Matthews, 385. Lux V. Haggin, 480, 485. Lybarger v. State, 712. Lycoming County v. Union County, 214, 368, 512. Lyman v. Hilllard, 186. Lynch v. U. S., 168. Lyng V. State of Michigan, 246. Lynn v. Polk, 65, 70. Lyon V. Mitchell, 350. M McAfee v. Covington, 736. McAllister v. U. S., 142. McArthur Bros. Co. v. Com., 26. McAunich v. Mississippi & M. E. Co., 373. Macbeath v. Haldimand, 13. McBee v. Brady, 50, 51. McBride v. Boss, 20. McCabe v. Cauldwell, 664. McCabe t. Emerson, 88. McCafferty v. Guyer, 649. McCain v. Des Moines, 155. McCall V. California, 247. McCall's Ose, 144. McCanu v. Com., 401. McCann v. New York, 602. McCardle, In re, 177. McCarter v. Hudson County Water Co., 742. McCarter v. Lexington, 70. McCarthy, Ex parte, 346. McCarthy v. K. G. Packard Co., 276. 'McCarver, Ex parte, 397. McCaughey v. Lyall, 592. McCauley v. State, 684. McChesney v. Chicago, 585. McChord v. Louisville & N. R. Co., 98. McClain v. Provident Sav. Life Assur. Soc, 186. McClain v. Williams, 617. McOleary v. Babcock, 67. McClelland v. McKane, 164. McCless V. Meekins, 750. MeClurg v. Brenton, 608. McCoUum V. McConaughy, 75. McConaughy v. Secretary of State, 52. McConkey v. U. S., 265. McConnell v. Bell, 588. McConnell v. McKlUip, 579. McCorkle v. State, 679. McCown, Ex parte, 90. McCoy V. State, 702. McCracken v. Hayward, 750. McCray v. U. S., 581. McCready v. Com., 292. McOready v. Sexton, 90, 605. McCready v. Virginia, 294. McCroskey v. Ladd, 756. McCue V. Com., 688. McCuUoch V. Maryland, 34, 202, 203, , 204, 211, 246, 286, 443, 445. McCullough V. Brown, 403. McCutchen v. Atlantic Coast Line R. Co., 550, 551. McDaniels v. J. J. Connelly Shoe Co., McDonald v. Massachusetts, 552, 706, 714. McDonald v. Red Wing, 396. McDonel v. State, 639. Macdougall v. Knight, 663. McDowell V. Kurtz, 141. McDowell V. Lindsay, 62. McDowell V. Rockwood, 755. McEldowney v. Wyatt, 604. McElmoyle v. Cohen, 297, 298. McEIrath v. U. S., 624. McElvaine v. Brush, 186, 707. McEwan v. Pennsylvania, N. J. & N. Y. R. Oo., 484. McPaddm v. Evans-Snider-Buel Co., 598, 721, 736, 746. Macfarland, In re, 93, 142, 147. McGahey v. Virginia, 730. McGarvey v. Swan, 571. McGill V. Osborne, 65. McGinnis v. State, 701. McGonnell's License, In re, 376. McGoon V. Scales, 446. McGorray v. Murphy, 145. McGowan v. Moody, 119. McGregor v. Cone, 252. McGuire v. Chicago, B. & O. R. Co., 68, 229, 352, 417, 547. McGuire v. District of Columbia, 423. McGuire v. Massachusetts, 179, 435. McGuire v. Parker, 295. McGuire v. State, 713. Macheca v. U. S., 122. Melntyre v. State, 80. Mackay's Estate, In re, 461. McKee v. Chautauqua Assembly, 741. McKee v. Cheney, 349. McKeen v. Delancy, 187. McKeever v. U. S., 560. McKenzie v. Baker, 327. McKenzie v. Moore, 328. Mackin v. Taylor County Court, 94, 444. Mackin v. U. S., 681. Mackinaw, The, 160. McKinney v. Salem, 732. McKinstry v. Collins, 605. McKuight, Ex parte, 301. McKnight v. U. S., 168. McLaughlin v. Charles, 662. McLaughlin v. Charleston County Com'rs, 88. McLean v. State, 419. McLellan v. Longfellow, 696. McLendou v. Lagrange, 462. McMahon, In re, 581. McMahon v. State, 706. McManning v. Parrar, 89. McManus, Ex parte, 551. McMillan t. Noyes, 481. CASES CITED. [The figures refer to pages.] 789 McMillan v. School Committee of Dist. No. 4, 555. McMillen v. Anderson, 580. MacMuUen v. Middletown, 589. McNaughton Co. v. McGirl, 218. McNaughton's Will, In re, 605. McNeer v. McNeer, 599. McNeill v. Southern R. Co., 172. McNichol V. United States Mercantile Reporting Agency, 89. McNiel, Ex parte, 160. McPeck V. Central Vermont R. Co., 189. McPhee's Estate, In re, 587. McPhee & McGinty Co. t. Union Pac. R. Co., 80. McPherson v. Blacker, 106, 352. McReynolds v. Burlington & O. R. R. Co., 499. McRickard v. Flint, 424. McSurley v. McGrew, 352, 368, 375, 597, 734, 757. McTwiggau v. Hunter, 463. McVey, In re, 145. McWhirter's Estate, In re, 643. Madden v. Arnold, 276. Maddox v. Graham, 81. Maddox v. Neal, 555. Madera R. Co. v. Raymond Granite Co., 477. Madrazzo, Ex parte, 169. MafEett v. Quine, 481. Mager v. Grima, 249. Magner v. People, 294. Magoun v. Illinois Trust & Savings Bank, 550, 554. Maguire, In re, 411. Maguire v. Maguire, 736. Mahady v. Bushwick R. Co., 489. Mahon, In re, 308. Mahon v. Justice, 308. Mahoney's Estate, In re, 295. Maiden v. IngersoU, 101., Maine v. Grand Trunk R. Co., 247. Maine v. U. S., 214. Mallery v. Frye, 605. Mallett V. North Carolina, 711. Malloy V. American Hide & Leather Co., 185, 188. Malone v. Williams, 424. Manaca, In re, 53. Manchester v. Massachusetts, 364. Manchester & L. R. R. v. Concord B. R., 432. Manda v. Orange, 476. Manigault v. Springs, 222, 737. Manistee & N. B. R. Co. v. Commission- eB of Railroad, 746. Manly v. State, 78. Mannie v. Hatfield, 7sJ! Manning v. Bruce, 479. Manor Casino v. State, 326, 328, 343. Mansfield's Case, 566. Manthey v. Vincent, 77. Manufacturers' Gas & Oil Co. v. In- diana Natural Gas & Oil Co., 217. Manville v. Battle Mountain Smelting Co., 340. Marble v. Whitney, 503. Marburg v. Cole, 9. Marbury v. Madison, 12, 13, 59, 95, 100, 111, 112, 121, 128, 176. Margolies v. Atlantic Citj^ 94. Marianna Flora, The, 268. Marion v. Forrest, 443. Marion v. State, 714. Marion County v. Clark, 622, Markel v. Phillips, 597. Marks, Ex parte, 323. Marks v. U. S., 270. Marmet-Halm Coal Co. v. Cincinnati, L. & A. Electric St. Ry., 5S7. Marriott v. Brune, 208. Marsh, Ex parte, 350. Marsh v. Board of Sup'rs of Clark County, 463. Marshall y. Baltimore & O. R. Co., 350, 735. Marshall v. Kraak, 574. Marshall Engine Co. v. New Marshall Engine Co., 153. Marshall Field & Co. v. Clark, 135, 349, 382. Marshall & Bruce Co. v. Nashville, 421. Marshalship of Alabama, In re, 130. Marten v. Halbrook, 153. Martha Washington, The, 223. Martin v. Board of Education, 555. Martin v. Dix, 508. Martin v. Fillmore County, 489. Martin v. Hunter, 34, 141, 178, 202, 286. Martin v. Mott, 117, 273. Martin v. Oskaloosa, 753. Martin v. Pittsburg & L. B. R. Co., 551. Martin v. South Salem Land Co., 88. Martin v. Texas, 556. Marvin v. Trout, 568. Marx & Haas Jeans Clothing Co. v. Watson, 422, 653. Marzen v. People, 698. Mason v. A. B. Nelson Cotton Co., 722. Mason & Foard Co. v. Main Jellico Mountain Coal Co., 541. Massachusetts, In re, 176. Massachusetts v. Rhode Island, 174. Massey v. Womble, 734. Massie v. Cessna, 574. Mathews v. Hedlund, 574. Mathews v. People, 419, 422, 574. Mathieson v. Craven, 163. Matthews v. Board of Corp. Com'rs of North Carolina, 490. Mattox V. State, 508. Mattox V. U. S., 691. Matz V. Chicago & A. R. Co., 188. Man V. Stoner, 617. Maxwell, In re, 6' . Maxwell v. Dow, . <), 640, 643, 680, 683. Maxwell v. Federal Gold & Copper Co., 155, 164. May V. Buchanan County, 267. May V. Topping, 328. Mayer v. U. S^, 639. Maynard v. Granite State Provident Ass'n, 294. Maynard v. Hill, 736. Mayor v. Cooper, IS"* 790 CASES CITED. [The figures refer to pages.] Mays V. Seaboard Air Line Ry., 485. Meacham v. Dow, 735. Mead v. Acton, 455. Mead v. Walker, 628. Meade v. U. S., 123. Meadows v. Gulf, C. & S. F.' R. Co., 571. Meads v. U. S., 96. Mechanics' & Traders' Bank v. Debolt, 443. Medley, Bx parte, 714. Meehan v. Board of Excise Com'rs of Jersey City, 640, 642. Mefliert v. Packer, 437. Melcher v. Boston, 449. Members of Legislature, In re, 318. Mendocino County v. Peters, 479. Menke v. State, 249. Menominie, The, 162. Mercantile Trust Co. v. Columbus, 152. Mercantile Trust & Deposit Co. v. Col- lins Park & B. R. Co., 728. Mercer County v. Wolff, 474, 479. Merchants' Bank of Danville v. Ballon, 605, 724, 753, 755. Merchants' Exchange v. Nott, S3. Merchants' Exchange of St. Louis v. Knott, 377. Merchants' Nat. Bank v. TJ. S., 208, 450. Merchants' Nat. Bank of Lafayette, Ind. V. Ford, 558. Merchants' Nat. Bank of St. Paul v. East Grand Forks, 512, 602. Merchants' Union Barb Wire Co. v. Brown, 71. Meredith v. New Jersey Zinc & Iron Co., 432. Merrick v. Giddings, MacArthur & M., 200. Merz V. Missouri Pac. R. Co., 405. Messenger v. State, 385. Metropolitan Board of Excise v. Bar- rie, 732. Metropolitan R. Co. v. District of Co- lumbia, 20, 275. Metropolitan R. Co. v. Quincy R. Co., 492. Metzger, In re, 125, 355. Meul V. People, 87. Meyer v. Consolidated Ice Co., 190. Meyers, Ex parte, 396. Mial V. Ellington, 600, 734. Michie v. ^few York, N. H. & H. R. Co., 61. Michigan Cent. R. Co. v. Powers, 553, 581. Michigan Corn Imp. Ass'n v. Auditor General, 368. Michigan Railroad Tax Cases, 553. Michigan Tel. Co. v. Charlotte, 729. Middlebrook v. State, 5i94. Middletown Sav. Bank v. Bacharach, 626. Milecke, Ex parte, 539. Miles V. State, 383. Mill V. Brown, 593. Millard v. Roberts, 198, 214. Millard v. Taylor, 266. Miller t. Birmingham, 545. Miller v. Bnrch, 578. Miller v. Com., 556. Miller v. Craig, 457. Miller v. Dennett, 598. Miller v. Des Moines, 421. Miller v. East Side Canal & Irr. Co., 163. Miller v. McQuerry, 619. Miller v. New York, 233. Miller v. State, 87, 88, 702, Miller V. Texas, 677. Miller v. U. S., 130, 575. Millett y. People, 570. Milligau V. Hovey, 145. Mills v. Duryee, 297. Mills V. Green, 649. Mills T. Martin, 145. Mills T. Mills, 350. Mills V. Newell, 344. Milton V. Bangor R. & Electric Co., 565. Milwaukee Electric R. & Light Co. v. Milwaukee, 414. Milwaukee & M. R. Co. v. Soutter, 179. Minder v. Georgia, 693. Miner v. Markham, 200, 348. Mines t. Scrlbner, 240, 241. Minneapolis v. Reum, 162, 258. Minneapolis Brewing Co. v. McGilli- vray, 59, 172, 252. Minneapolis, St. P. & S. S. M. R. Co. V. Wisconsin R. Com., 98, 352, 377. Minneapolis & St. L. R. Co. v. Beck- with, 408, 577. Minneapolis & St. L. R. Co. v. Minne- sota, 414. Minnesota v. Barber, 435. Minnesota v. Duluth & I. R. R. Co., 730. Minnesota v. Hitchcock, 168, 175. Minnesota v. Northern Securities Co., 239. Minnesota Canal & Power Co. v. Koo- chiching Co., 475, 477, 480. Minnesota Canal & Power Co. v. Pratt, 476, 480, 481. Minnesota Iron Co. v. Kline, 417. Minook, In re, 259. Minor v. Happersett, 309, 632, 635, 645. Minturn v. Larue, 564. Miocene Ditch Co. v. Jacobsen, 481. Mires v. St. Louis & S. F. R. Co., 232. Mississippi v. Johnson, 12. Mississippi Railroad Commission v. Il- linois Cent. R. Co., 172, 251. Mississippi R. Co. v. McDonald, 501. Mississippi & M. R. Co. v. McClure, 722. Mississippi & R. River Boom Co. v. Pat- terson, 498. Missouri v. Andriano, 179. Missouri v. Bowles Mill. Co., 170. Missouri v. Illinois, 174. Missouri v. Iowa, 29. Missouri v. Kentucky, 29, Missouri v. Lewis, 549, CASES CITED. [The figures refer to pages.] 791 Missouri Drug Co. v. Wyman, 95, 266. Missouri, K. & T. R. Co. v. Board of Com'rs of Miami County, 462. Missouri, K. & T. R. Co. v. Cambern, 480. Missouri, K. & T. R. Co. v. Fookes, 221. Missouri, K. & T. R. Co. v. Interstate Commerce Commission, 255, 596. Missouri, K. & T. R. Co. v. Shannon. 83 Missouri, K. & T. R. Co. v. Simonson, 90. Missouri, K. & T. R. Co. of Texas v. McDuffey, 737. Missouri, K. & T. E. Co. of Texas v. Shannon, 582. Missouri, K. & T. R. Co. of Texas v. Smith, 551. Missouri Pac. R. Co. t. Fiuley, 400. Missouri Pac. R. Co. v. Humes, 408. Missouri Pac. R. Co. v. Kennett, 253. Missouri Pac. R. Co. v. Mackev, 550. Missouri & K. I. R. Co. v. Olathe, 93. Mitchell V. Clark, 721, 748. Mitchell V. Lemon, 537. Mitchell V. McCorkle. 370. Mitchell V. State, 375. Mitchell V. Steelraan, 223. Mixon V. State, 702. Mobile Dry Docks Co. v. Mobile, 68. Mobile, J. & K. C. R. Co. v. Bromberg, 230. Mobile, J. & K. O. R. Co. v. Hicks, 417. Mobile & O. R. Co. v. Postal Tel. Cable Co., 479. Mobile & O. R. Co. v. State, 73, 405. Moddy V. Hoskins, 604. Monaghan v. Lewis, 454. Monarch Tobacco Works v. American Tobacco Co., 238. Monash v. Rhodes, 320. Monongahela- River Consol. Coal & Fuel Co. V. Jutte, 239. Monroe County Sav. Bank v. Rochester, 447. Montalet v. Murray, 162. Montana v. Rice, 186. Montgomery v. State, 36, 56, 556. Montgomery v. U. S., 115. Montgomery Mut. Bldg. & Loan Ass'n V. Robinson, 383. Montross v. State, 335. Moody V. State's Prison, 26. Moore, In re, 667. Moore v. Alexander, 366. Moore v. Allen, 288. Moore v. Georgetown, 375. Moore T. Indianapolis, 388, 732. Moore v. Missouri, 702. Moore v. Mullen, 540. Moore v. National Council of Knights & Ladies of Security, 596. Moore v. New Orleans, 64. Moore v. Ruckgaber, 638. Moore v. State, 597, 683. Moore v. Strickling, 575. Moore v. West Jersey Traction Co., 70. Moore & McFerrin v. McGuire, 29. Moores & Co. v. Bricklayers' Union, 422. Moran v. New Orleans, 222. Moran v. New York, 423. Moredock v. Kirby, 294. Morenci Copper Co. v. Freer, 187. Morford v. Unger, 326, 343. Morgan, Ex parte, 303. Morgan, In re, 416. Morgan v. Com., 221, 466. Morgan v. Nolte, 395. Morgan v. Nunn, 136. Morgan's Louisiana & T. R. & S. S. Co. "v. Louisiana Board of Health, 226, 361. Morley v. Lake Shore & M. S. R. Co., 588, 736. Mormon Church v. U. S., 533. Morrill v. American Reserve Bond Co., 171. Morris' Estate, In re, 461. Morris v. Powell, 60. Morris Run Coal Co. v. Barclay Coal Co., 426. Morris-Scarboro-Moffitt Co. v. Southern Exp. Co., 220. Morris & E. R. Co. v. Newark, 512. Morrison v. Bachert, 76, 371. Morrison v. Dwyer, 305. Morrison v. Morey, 389, 390. Morrison v. State, 557. INIorrow v. Wipf, 377. Morse v. Hovey, 260. JTorse V. Omaha, 66. Morton v. Sharkey, 721. Jlorton V. Skinner, 303. Moser, In re, 610. Moses V. U. S., 405. Mountain Copper Co. v. U. S., 28. Mt. Vernon v. Evans & Howard Fire Brick Co., 372. Mt. Washington Road Co., In re, 500. Moyer, Ex parte. 307. Moyer, In re, 321, 363. Mover v. Cantieny, 325. Moyer v. Peabody, 153, 319, 571. Moynihan, Appeal of, 99. Stueller v. Nugent, 540. Mugler V. Kansas, 388, 402, 437, 439, 577. Muhlenburg County v. Morehead, 94. Muirhead v. Sands, 746. Muir's Adm'r v. Bardstown, 710, 759. Mulford, In re, 292. Mull V. Indianapolis & C. Traction Co., 475. Mullan V. State, 379. Mullan V. U. S., 115, 145. Mullen V. Mosley, 395. Mullen V. Western Union Beef Co., 179. Muller V. Dows, 164. Muller V. Oregon, 415. „ „ „ ^ Mumford v. Chicago, R, I. & P. R. Co., '417. Mumford v. U. S., 214. Munn V. Illinois, 412, 413, 414, 437, 742. Munn V. People, 577. ' Munn V. Pittsburgh, 627. Munsey v. Clough, 306. Munster v. Lamb, 695. 792 Murdock v. Memphis, 178. Murphy, In re, 710, 714. Murphy v. Beard, 482, 603. Murphy v. Com., 714. Murphy v. People, 355, 677. Murphy v. Eamsey, 533. Murphy v. State, 682. CASES CITED. [The figures refer to pages.] ^ations v. Johnson, 298. Naugatuck R. Go. v. Waterbury Button Co,, 627. Naylor t. Harrisonville, 585. Neafie v. Hoboken Printing & Pub. Co., 653. 'VNeagle, In re, 119, 135, 392. Murphy v. Western & A. R. R., 557. Neal v. Delaware, 556. Murray v. Charleston, 152, 452, 729. "" "' " - ■ ■ Murray v. Hoboken Laud & Imp. Co., 593. Murray v. McCarty, 294. Murray's Lessee v. Hoboken Land & Imp. Co., 571. Muse V. Arlington Hotel Co., 155. Muskogee Nat. Tel. Co. v. Hall, 235, 256. Musselman Grocer Co. v. Kidd, Dater & Price Co., 426. Mutual Ben. Life Ins. Co. v. Elizabeth, 512. Mutual Life Ins. Co. v. Boyle, 171. Mutual Life Ins. Co. v. Harris, 297. Mutual Life & Casualty Ins. Co. v. Haight, 447. Mutual Reserve Fund Life Ass'n v. City Council of Augusta, 460. Myerle v. U. S., 120. Myers v. Hettinger, 150, 154. Myers v. Moran, 749. Myers t. State, 667. Myrick v. Heard, 188. N 166. Naganab v. Hitchcock. Nance v. Howard, 453! Napier v. Gidiere, 298. Narragansett Indians, In re, 256. Nash V. Clark, 480. Nashua Say. Bank v. Nashua, 465. Nashville, 0. & St. L. B. Co. v. Alaba- ma, 410. Nashville, C. & St. L. R. Co. v. Taylor, 462, 545, 554. National Bank of Augusta v. Augusta Cotton & Compress Co., 725. National Bank of Cleveland v. lola, 458. National Bank of Oxford v. Whitman, 186. National Cotton Oil Co. v. State, 427. National Council, Junior Order Ameri- can Mechanics v. State Council, Junior Order United American Mechanics, 72, 218. National Bzch. Bank of Boston v. White, 622. National Fireproofing Co. v. Mason Builders' Ass'n, 243, 428. National Harrow Co. v. B. Bement & Sons, 426, 429. National Harrow Co. v. Hench, 431. National Land & L. Co. v. Mead, 327. National Mut. Bldg. & Life Ass'n v. Brahan, 722. National S. S. Co. v. Tugman, 164. National Surety Co. v. State Bank, 151. Neary v. Philadelphia, W. & B. R. Co., 464. Nebraska v. Iowa, 29. Needham v. State, 550. Neely v. Henkel, 101, 678. Neill, Ex parte, 654. Neill V. Gates, 722. Neiswanger's Lessee v. Gwynne, 446. Nelson v. Blinn, 592. Nelson v. U. S., 279. Nessle v. Hum, 530. Nettleton, Appeal of, 581. NeuendorfE v. Duryea, 530. Neustra Senora de le Caridad, The, 134. Neves v. Scott, 186. Newark Library Ass'n, In re, 741. Newark & S. O. H. C. B. Co. v. Hunt, 400. Newburyport Water Co. v. Newbury- port, 586. New Castle Circle Boundary Case, In re, 29. Newell, In re, 437. Newell v. People, 77. New England Mut. Marine Ins. Co. v. Dunham, 160, 627. New England Trout & Salmon Club v. Mather, 479. New Hampshire v. Louisiana, 173. New Jersey v. New York, 29, 174. New Jersey v. Wilson, 744. New Jersey v. Yard, 744. New Jersey R. & Transp. Co. v. Col- lectors of East, Fifth & Ninth Wards of Newark, 441, 465. Newland v. Marsh, 67. Newlove's Estate, In re, 599. Newman, Ex parte, 70. New Mexico v. Denver & R. G. R. Co., 253 359 New brleans v. Clark, 214 368, 512. New Orleans v. Fargot, 404. New Orleans v. Fisher, 152. New Orleans v. Gaines, 165. New Orleans v. Winter, 164. New Orleans Debenture Redemption Co. V. Louisiana, 590. New Orleans Gaslight Co. v. Louisiana Light & Heat Producing & Mfg. Co., 390, 562, 721, 737, 742. New Orleans, M. & T. R. Co. v. Mis- sissippi, 153. New Orleans Waterworks Co. v. Lou- isiana Sugar Refining Co., 722. New Orleans Waterworks Co. v. Rivers, 562. New Orleans & S. R. Co. v. Jones, 503. Newsom v. State, 701. New York v. Com'rs of Taxes & Assess- ments, 447. CASES CITBD. [The figures refer to pages.] 79S New York v. Compagnie G6n6rale Trans- atlantique, 228. New York v. Cook, 740. New York v. Hesterberg, 252. New York v. Koberts, 247. New York v. State Board of Tax Com'rs, 581. New York Cent. R. Co. v. Lockwood, 188 • New 'York Cent. & H. R. R. Co. v. Board of Chosen Freeholders of Hud- son County, 219, 222. New York Cent. & H. R. R. Co. v. In- terstate Commerce Commission, 255. New York Cent. & H. R. R. Co. v. U. S 230 New York Cent. & H. R. R. Co. v. Williams, 418. New York City v. Miln, 229. New York Electric R. Co. v. Fifth Nat. Bank, 491. New York Fire Department v. Kip, 719. New York, L. E. & W. B. Co. v. Com- missioners, 455. New York Life Ins. Co. v. Board of Com'rs of Cuyahoga County, Ohio, 512, 753. New York Life Ins. Co. v. Cravens, 217. New York L. Ins. Co. v. Hardison, 64. New York, N. H. & H. B. Co. v. New York, 251, 406. New York, N. H. & H. R. Co. v. Of- field, 484, 586. New York & C. S. S. Co. v. Harbison, 13. New York & N. E. R. Co. v. Bristol, 408, 551, 741. New York & N. J. Tel. Co. v. Borough of Bound Brook, 93. Niagara Fire Ins. Co. v. Cornell, 61, 91, 420. Niagara, L. & O. Power Co., In re, 480. Nichols, In re, 321. Nichols V. Bridgeport, 500. Nichols V. Nichols, 163. Nishimura Ekiu v. U. S., 393. Nixon V. State, 698. Noble V. Amoretti, 449. Noble V. Bragaw, 68. Noble V. Mitchell, 179. Noble V. The St. Anthony, 363. Noble V. Union River Logging R. Co., 95. Nobie State Bank v. Haskell, 470. Nobles V. Georgia, 678. Noblom V. Mil borne, 270. Noel V. People, 410. Nolan V. Franklin, 398. Nona Mills Co. v. Wingate, 76. Nordlinger v. U. S., 702. Norfolk Trust Co. v. Marye, 154. Norfolk & P. Traction Co. v. Elling- ton's Adm'r, 80. Norfolk & W. B. Co. v. Cheatwood's Adm'x, 81. Norfolk & W. B. Co. v. Com., 251. Norfolk & W. R. Co. v. Lynchburg Cot- ton 'Mills Co., 475. Norfolk & W. R. Co. v. Pennsylvania, 247, 295, 558. Norman v. Boaz, 64. Norman v. Heist, 572. Norman v. Kentucky Board of Manag- ers of World's Columbian Exposition, 368. Norris, Appeal of, 626. Norris, Ex parte. 325. Norris v. Boston, 208. Norris v. Clymer, 59. Norris v. Doniphan, 575. Norris v. Waco, 459. Norristown, H. & St. L. Turnpike Co. V. Burket, 629. North American Cold Storage Co. v. Chicago, 401, 579. North Bloomfield Gravel Min. Co. v. U. S.. 141, 222. North British & Mercantile Ins. Co. v. Craig, 27. North Carolina R. Co. v. Alamance County Com'rs, 443. ^ Northern v. Barnes, 88. Northern Pac. R. Co. v. Garland, 441, 758. Northern Pac. R. Co. v. Galvin, 758. Northern Pac. R. Co. v. Minnesota, 737. Northern Pac. B. Co. v. Pacific Coast Lumber Mfr's Ass'n, 153. Northern Pac. R. Co. v. St. Paul, etc., R. Co., 167. Northern Pac. B. Co. v. Soderberg, 153. Northern Securities Co. v. U. S., 237, 239, 241, 427. Northern Transp. Co. v. Chicago, 949. North German Lloyd S. S. Co. v. Hed- den, 125. North Missouri R. Co. v. Magudre, 443, 570. Northrop v. Waterbury, 577. Northrup, Ex parte, 397, 552. North Springs Water Co. v. Tacoma, 731. Northwestern Fertilizing Co. v. Hyde Park, 388. Northwestern Tel. Exch. Co. v. Ander- son, 601. Northwestern Tel. Exch. Co. v. Chicago, M. & St. P. R. Co., 486. Northwestern Tel. Exch. Co. v. Min- neapolis, 728. Northwestern University v. Illinois, 744. Norton v. Shelby County, 75. Norton v. W. H. Thomas & Sons, 429. Norval v. Rice, 683. Norwalk St. R. Co., Appeal of, 93. Norwich Gas & Electric Co. v. Norwich, 61. Nugent, Ex .parte, 347. Nunnemacher v. State, 94, 554. Nussbaum v. State, 26. Nutwell v. Com'rs Anne Arundel Coun- ty, 382. N. W. Halsey & Co. v. Belle Plaine, 80. 794 CASES CITED. [The figures refer to pages.] Oakley v. Aspiuwall, 79. Gates V. First Nat. Bank, 245. Gates V. State, 587. G'Brien, In re, 376. O'Brien v. Ash, 599. G'Brien v. Krenz, 603. O'Brien v. Musical M^it. Protective & Benevolent Union Local No. 14, Na- tional League of Musicians, 430. O'Brien's Petition, In re, 409. O'Bryan v. Allen, 747. Ochiltree v. Iowa K. Contracting Co., 724. Odd Fellows' Cemetery Ass'n v. San Francisco, 70, 439. O'Donnell v. People, 702. Offield V. New York, N. H. & H. R. Co., 586. Off & Co. V. Morehead, 426. Ogden V. Saunders, 260, 748. Ogden V. Walker, 447. Ogden City v. Bear Lake & River Wa- terworks & Irr. Co., 514. Ogilvie V. Knox Ins. Co., 179. Ogletree v. Dozier, 87. Ohio V. Dollison, 549, 551. Ohio V. Frank, 187. Ohio, The v. Stunt, 363. Ohio Val. Ry.'s Receiver v. Lander, 557. Ohio & M. R. Co. V. Lackey, 408. Olcott V. Supervisors of Fond du Lac County, 187. Old Dominion S. S. Co. v. McKeuna, 422. Old Wayne Mut Life Ass'n v. McDon- ough, 591. Olender v. Crystalline Min. Co., 590. Oliver v. Washington Mills, 208. Olsen v. Smith, 225. Olyphant Borough v. Egreski, 738. Omaha Water Co. v. Omaha, 728, 742. O'Maley v. Borough of Freeport, 467. Omichund v. Barker, 534. O'Neill, In re, 409. O'Neil V. Vermont, 355, 677. Opinion of Justices, In re, 53, 71, 103, 199, 259, 285, 30o, 320, 326, 344, 349, 367, 377, 427, 447, 515, 621, 742. Opinion of Supreme Court, In re, 51. Order of R. R. Telegraphers v. Louis- ville & N. B. Co., 231. Oregon v. Hitclicock, 166. O'Reilly De Camara v. Brooke, 13, 14. Orient Ins. Co. v. Daggs, 295, 559, 636, 753. Orleans, The v. Phoebus, 157. Ormerod v. New Tork, W. S. & B. R. Co., 468. Orr v. Oilman, 554, 745. Orrick v. Ft. Worth, 376. Ortiz, Ex parte, 21. Ortiz V. Hansen, 473. Osborn v. Bank of United States 154, 171, 204, 211, 286. Osborn v. CJjarlevoix Circuit Judge, 579. Osbom v. Jaines, 748. Osborn v. New York & N. H. R. Co., 465. Osborne v. Adams County, 458. Osborne v. Lindstrom, 589. Osborne v. State, 249. Osburn v. Staley, 380. Oskamp v. Lewis, 583. Otis V. Parker, 389, 437, 566. Ottawa v. Carey, 514. Ottawa County Com'rs v. Nelson, 460. Gary v. Goodwin, 28(1. Over V. By ram Foundry Co., 428. Gverman Silver Min. Co. v. Corcoran, 481. Owen County Burley Tobacco Soc. v. Brumback, 550, 561, 640. Owen v. Owen, 622. Owens, In re, 260. Owens V. Ohio Cent. R. Co., 181. Owensboro Waterworks Co. v. Gwens- boro, 571. Gxnard Beet Sugar Co. v. State, 366, 368. Pabst Brewing Co. v. Crenshaw, 252, 253. Pace V. Alabama, 557. Pace V. Burgess, 210, 467. Pacific Coast S. S. Co. v. Board of Rail- road Com'rs, 222. Pacific Electric R. Co. v. Los Angeles, 154. Pacific Exp. Co. V. Seibert, 247, 248. Pacific Ins. Co. v. Soule, 208, 209. Pacific Mail S. S. Co. v. Joliffe, 224. Pacific Nat. Bank of Tacoma v. Pierce County, 465. Pacific Postal Tel. Cable Co. v. Oregon & C. R. Co., 484, 486. Pacific Ry. Commission, In re, 347. Pacific R. R. V. Governor of Missouri, 382. Pacific R. Co. V. Maguire, 744. Paducah v. Ragsdale, 433. Page v. Allen, 352. Page v. Chicago, M. & St. P. R. Co., 499. Page V. Matthews' A'dm'r, 333. Page V. Moffett, 131. Paine v. Willson, 187. Painter v. St. Clair, 474, 475, 586. Palen v. U. S., 115. Palfrey v. Boston, 447. Palmer v. Barrett, 277. Palmer v. Lawrence, 61. Palmer v. State, 684. Palmer v. Stumph, 461. Palmer v. Texas, liSe. Palmore v. State, 621, 683. Palmyra Tp. v. Pennsylvania R. Co., 737. Panama, The, 226, 279, 280. Parham v. Justices of Inferior Court of Decatur County, 395. Paris V. Nordburg, 750. CASES CITED. [The figures refer to pages.] 795 Park V. Candler, 67, 365. Park T. Detroit Free Press Co., 524. Park & Sons Co. v. National Whole- sale Druggists' Ass'n, 431. Parker, Ex parte, 346. Parker v. Otis, 398. Parker v. State, 70, 78, 100. Parkersburg v. Brown, 36S, 458. Parkersburg & O. River Transp. Co. v. Parkersburg, 361. Parks V. Oommissioners of Soldiers' & Sailors' Home, 317. Parks T. Ross, 13. Parks V. State, 410, 642. Parks V. West, 79. Parks v. Wisconsin Cent. R. Co., 499. Parmelee v. Lawrence, 606. Parmiter v. Coupland, 665. Parrott, In re, 419, 547, 555. Parsons v. Bedford, 67, 619. Parsons v. Howe, 485. Parsons v. People, 460. Parsons v. Robinson, 179. Parther v. U. S., 99. Passaic Bridges, The, 216. Passaic v. Paterson Bill-Posting, Adver- tising & Sign Painting Co., 424. Passenger Oases, 228, 257. Patapsco Guano Co. v. Board of Agricul- ture, 359. Patrick v. State, 226. Patterson v. Baumer, 480. Patterson v. Kentucky, 267, 396. Patterson v. Mater, 181. Patterson v. Missouri Pac. R. Co., 232. Patterson v. Taylor, 557. Patterson v. Temple, 460. Patton v. Asheville, 749. Patten V. Brady, 154. Patton V. Commercial Bank, 447. Patton V. Patton, 509. Patty V. Colgan, 367. Paul V. Detroit, 621. Paul V. Gloucester County, 509. Paul V. Virginia, 218, 295, 636. Pavesich v. New Eiigland Life Ins. Oo., 523, 535, 653, 666. Payne v. Houghton, 119. Peabody v. U. S., 490. Peaden v. State, 699. Pearce v. Stephens, 525. Pearce v. Texas, 306. Pearsall v. Board of Sup'rs of Eaton County, 492. Pearson v. Board of Sup'rs of Bruns- wick County, 649. Pearson v. Wimbish, 681. Peeples v. Byrd, 26. Peerce v. Kitzmiller, 53, 88, 597. Peete v. Morgan, 360, 361. Pegues V. Ray, 250. Pell's BiState, In re, 598, 738. Pelt v. Payne, 756. Pembina Consol. Silver Min. & Mill. Co. V. Pennsylvania, 295, 557. Penhallow v. Doane, 310. Penick v. Foster, 506. Pennebaker t. Williams, 350. Pennell v. U. S./ 167. Pennie v. Reis, 597. Pennoyer v. McConnaughy, 171. Pennoyer v. NefE, 299, 591, 592. Penn Refining Oo. v. Western New York & P. R. Co., 255, 256. Penn's Case, 685. Pennsylvania v. Wheeling & B. Bridge Co., 183, 233, 234. Pennsylvania Co. v. Fishack, 189. Pennsylvania R. Co. v. First German Luthem Congregation of Pittsburgh, 496, 625. Pennsylvania R. Co. v. Hughes, 179. Pennsylvania R. Co. v. Hummel, 188. Pennsylvania R. Co. v. Miller, 740. Pennsylvania R. Oo. v. Philadelphia County, 83. Pennsylvania R. Oo. in Maryland v. Baltimore & O: R. Co.. 495. Pennsylvania Sugar Refining Co. v. American Sugar Refining Co., 237, 238, 241. Pennsylvania Tel. Co., In re, 235. Penrose v. Brie Canal Oo., 749. Pensacola Tel. Co. v. Western Union Tel. Co., 219, 234. Peonage Cases, 419, 539. People V. Aachen & Munich Fire Ins. Co. of Germany, 426. People V. Adams, 607. People V. Adirondack R. Co., 479. People V. Ahearn, 375. People V. Albany & S. R. Co., 625. People V. Albertson, 505. People V. Allen, 372. People V. Ammerman, 700. People V. Baker, 61, 538. People V. Barber, 645. People V. Beattie, 410. People V. Biesecker, 401. People V. Bingham, 303. People V. Bissell, 95. People V. Board of Assessors, 448. People V. Board of Com'rs of Cook County, 603. People V. Board of Education & Trus- tees of School Dist. No. 1, 590, 759. People V. Board of Election Com'rs of City of Chicago, 345, 650. People V. Board of R. Com'rs, 476. People V. Board of Salem, 72. People V. Board of State Auditors, 95. People V. Board of Sup'rs, 466. People V. Board of Sup'rs of City & County of New York, 89. People V. Board of Sup'rs of Essex County, 572. People V. Board of Sup'rs of Saginaw County, 458. People V. Boston & A. R. Co., 406. People V. Botkin, 146, 570, 643. People V. Bowen, 328. People V. Brady, 555. People V. Briggs, 385. People V. Brooklyn, 444. People V. Brooklyn Cooperage Co., 367. People V. Brooklyn, F. & C. S. B. Oo., 64. 796 CASES CITED. [The figures refer to pages.] People V. Budd, 315. People v. BufEalo Fish Co., 252. People V. Burns, 323. People v. Butler, 714. People V. Butler St. Foundry & Iron Co., 420, 550. People V. Cage, 702. People v. Calder, 70. People V. Caldwell, 409. People V. Canal Appraisers, 491. People V. Cannon, 426. People T. Case, 547. People V. Chicago, 98, 587. People T. Cicottee, 626. People V. Clean St. Co., 565. People V. Coleman, 373. People T. Coler, 418, 511, 734. People V. Commissioners of Taxes & Assessments, 447, 450. People V. Common Council of City of Rochester, 71. People V. Common Council of Detroit, 511. People V. Comptroller of City of Brook- lyn, 54. People V. Cook, 87. People v. Cooper, 74. People V. Cornforth, 315. People V. Cox, 712. People V. Cram, 98. People V. Orissman, 96. People v. Cross, 307. People V. Curry, 50. People V. Curtis, 355. People T. Dane, 715. People V. Daniell, 335. People T. Daniels, 280. People V. Dann, 607. People V. Department of Health of New- York, 575. People V. Detroit, 511. People V. Detroit United By., 407. People V. Devlin, 327. People V. District Court of Arapahoe County, 342. People V. District Court of Second Judi- cial Dist, 97. People V. Doesburg, 625. People V. D'Onech, 424. People V. Dowdigan, 691. People V. Dowling, 702. People V. Downer, 228. People T. Draper, 71, 73, 352, 505, 511. People T. Duke, 429. People T. Dycker, 412. People V. Ellison, 729. People V. 'Ewer, 411. People T. Fancher, 79. People V. Fire Department of City of Detroit, 711. People V. Fish, 691. People V. Flagg, 352. People V. Flannelly, 680. People V. Flynn, 732. People T. Fonda, 149. People T. Ft. Wayne & B. R. Co., 489. People V. Freeman, 86. People T. French, 733. People V. Frost, 324. People V. Gardner, 70, 687. People V. Grass, 745. People T. Gerke, 123. People V. Gloversville, 475. People T. Glynn, 248. People V. Gordon, 409. People T. Grand Trunk W. R. Co., 518, 520. People V. Granite State Provident Ass'n, 295. People V. Greene, 691. People V. Hagan, 305. People V. Hall, 698. People V. Hanrahau, 374, 549. People V. Hatch, 327. People V. Havnor, 530. People V. Hayes, 713. People V. Henderson, 462. People V. Henshaw, 509. People V. Hoffman, 377, 649. People V. Humphrey, 471. People V. Hunckeler, 702, People V. Hurlbut, 513. People V. Hutchinson, 342. People V. Hyatt, 305. People V. Illinois Cent. R. Co., 470, 577, 737, 742. People V. Inilay, 295. People V. Jackson & M. Plank-Road Co., 390. People V. Johnson, 710, 715. People V. Judge of Twelfth Dist., 335. People V. Justices of Court of Special Session, 620, 685. People V. Keeler, 347. People V. Kemmler, 707. People V. Kennedy, 620. People V. Kenney, 73. People V. King, 548. People V. Kipley, 89, 98. People V. Klaw, 430. People V. Knight, 449. People y. Kostka, 422. People V. Lawrence, 78, 92, 382. People v. Leubischer, 594. People V. Ixieffler, 643. People V. Loomis, 51. People V. Lynch, 718, 758. People T. McBride, 64, 68, 71, 376, 377, 516. People V. McCoy, 688. People V. McDauiels, 702. People V. McDonald, 63. People V. McElroy, 379. People V. Madden, 87. People V. Mahauey, 344, People V. Majors, 703. People T. Marcus, 421. People V. Marx, 401. People V. May, 77, 79, 80. People V. Mead, 688. People V. Metz, 78, 416, 545i.v People V. MiUer, 463. People V. Mills, 52. People V. MoUins, 691. People T. MoUoy, 452. People T. Moore, 323. CASES CITED. [The figures refer to pages.] 797 People T. Moran, 698. People V. Morrison, 446. People V. Mortimer, 711. People V. Most, ^8. People V. Murphy, 425, 435, 438, 440, 48&. People V. Murray, 698. People V. Napthaly, 695. People V. NefE, 448. People V. Newburgh & S. P. R. Co., 371. People V. Newell, 637. People V. New York, N. H. & H. R. Co., 406. People V. Niagara Fruit Co., 251. People V. Noelke, 613. People V. Nolan, 713. People V. Norton, 52. People V. Nussbaum, 432. People V. Nye, 69, 78, 80, 320, 352. People V. Onahan, 68. People V. O'Neil, 683. People V. Ontario, 375. People V. Orange County Road Const. Co., 416. People V. Parks, 458. People V. Perkins, 679. People V. Phillips, 623. People T. Phippm, 409. People V. Pierson, 534. People V. Pinckney, 375. People V. Pitt, 441. People V. Pittsburgh R. Co., 478. People V. Potter, 77. People V. Powell, 684. People V. Power, 513. People V. Quijada, 638. People V. Raymond, 228, 745. People V. Reardon, 563, 581. People V. Richmond, 73, 603. People V. Ringe, 411. People V. Riseley, 605. People V. Roberts, 27, 465. People V. Ronner, 63, 553, 566. People V. Rose, 68, 90. People V. Rosenberg, 559. People V. Ruggles, 529, 531. People V. Russell, 267. People V. St. Saviour's Sanitarium, 538. People V. Salomon, 329. People V. Sanitary Dist. of Chicago, 26, 483. People V. Schneider, 433. People V. Sewer, Water & St. Commis- sion of Saratoga Springs, 574. People v. Sexton, 587. People V. Shearer, 446. People V. Sligh, 691. People V. Smith, 250, 417, 474, 707. People V. Society for Prevention of Cru- elty to Children, 537. People V. Sours, 51. People V. Starne, 380. People V. State Board of Canvassers, 344. People T. Steele, 388, 412, 422, 439, 559, 566. People r. Stephens, 727. People V. Sturges, 575. People V. SwafEord, 698. People V. Thompson, 102. People V. Tice, 678. People V. Tool, 24, 27. People V. Township Board of Salem, 457. People V. Tupper, 694. People V. Turner, 539, 757. People V. U. S., 446. People V. Van De Carr, 30. People V. Van Pelt, 640. People V. Walling, 359. People V. Warden of City Prison, 409, 411, 439, 562. People V. Webster, 426. People V. Wells, 66, 359. People V. Wendel, 538. People V. Whartenvy, 466. People V. White, 263. People V. Williams, 416. People V. Wilmerding, 228. People V. Wilzig, 422. People V. Wisconsin Cent. R. Co., 757. People V. Woodbury, 525. People V. Wright, 370. People V. Yates, 95. People V. Yeager, 698. People V. Young, 352. People V. Zimmerman, 412, 416. People V. Zito, 710. People ex rel. Blanding v. Burr, 374. People of California v. Pacific Mail S. S. Co., 228. People's Gaslight & Coke Co. v. Chi- cago, 743. People's Loan & Exchange Bank v. Garlington, 598. People's Nat. Bank v. Marye, 581. People's Sav. Bank v. Layman, 150. People's Tobacco Co. v. American To- bacco Co., 243. Perce v. Hallett, 617. Percy, In re, 409. Percy Summer Club v. Astle, 163, 187. Pere Marquette R. Co. v. United States Gypsum Co., 476, 477. Perkins v. Heert, 420. Perlberg v. Smith, 236. Permoli v. Municipality No. 1 of New Orleans, 528. Perrine v. Chesapeake & D. Canal Co., 739. Perry v. Pernet, 540. Perry v. Rockdale, 375. Persing v. Reno Stock Brokerage Co., 588. Pervear v. Massachusetts, 355, 677, 706. Pesterfield v. Vickers, 518. Peters v. Hanger, 141. Petersburg v. Petersburg Aqueduct Co , 389. Petersilie v. McLachlin, 90. Peterson v. State, 251, 540. Petit V. Colmery, 615. Petit V. Minnesota, 397, 438. Petry v. Leidigh, 307. Petterson v. Berry, 747. 798 CASES CITED. [The figures refer to pages.] Petterson v. Board of Cbm'rs of Pilots for Port of Galveston, 410. Pettigrew t. Elvausville, 491. Petty, In re, 714. Peyroux v. Howard, 161. Pfeiffer v. Board of Education of De- troit, 367, 530. Phelan v. Terry, 576, 747. Philadelphia v. Brabender, 405. Philadelphia, M. & S. St. E. Co., In re, 485. Philadelphia & R. R. Co. v. Patent, 492. Philadelphia & R. R. Co. v. Ervin, 518. Philadelphia & S. M. S. S. Co. v. Penn- sylvania, 247. Phillips V. Dunkirk, W. & P. R. Co., 475. Phillips V. lola Portland Cement Co., 238 Phillips V. Mobile, 252. Phillips V. Payne, 102. Phillips V. State, 411. Phinney v. Trustees of Sheppard & Enoch Pratt Hospital, 739. Phipps V. Wisconsin Cent. R. Co., 547. Phoenix Bridge Co. v. Castleberry, 188. Phoenix Ins. Co. of New York v. Welch, 378 Piatt' V. People, 735. Pickard v. Pullman Southern Car Co., 248. Pickett v. State, 609. Pickle V. McCall, 328. Picquet v. Swan, 639. Piedmont Cotton Mills v. Georgia Ry. & Electric Co., 486, 487. Piek v. Chicago & N. W. R. Co., 172, 247. Pierce v. Carskadon, 709, 715. Pierce v. Doolittle, 97. Pierce v. Drew, 479, 488. Pierce v. Kimball, 606. Pierce v. Pierce, 75. Pierce v. Somerset Ry., 65. Pierce v. Worcester & N. R. Co., 492. Pike V. State, 462. Pingree v. Michigan Cent. R. Co., 742. Pinkerton v. Verberg, 537. Pinney v. Providence Loan & Invest- ment Co., 590. Pintsch Compressing Co. v. Bergin, 638. Piqua Branch of State Bank v. Knoop, 444, 744. Pitkin & Brooks, Appeal of, 359. Pittinger v. Marshall, 348. Pittsburgh, C, O. St. L. R. Co. v. Board of Public Works, 247. Pittsburgh, C, C. & St. L. R. Co. v. Hartford, 71. Pittsburgh, C, C. & St. L. R. Co. v. Hosea, 417. Pittsburgh. O., C & St. L. R. Co. v. Hunt, 220, 221. Httsburgh, , C, C. & St. D. R. Co. v. Lightheiser, 417, 636, 710. Pittsburgh, C., C. & St. L. R. Co. v. State, 250. Pittsburgh, Pt. W. & C. R. Co. v. Sani- tary Dist. of Chicago, 478. Pittsburg & S. Coal Co. v. Bates, 248. Pittsburgh & W. R. Co. v. Patterson, 500. Planters' Bank v. Sharp, 723, 738. Piatt V. Beach, 128. Piatt V. Lecocq, 185, 352. Piatt V. Pennsylvania Co., 500. Platte Land Co. v. Hubbard, 65. Plessy V. Ferguson, 557. Pliable Shoe Co. v. Bryant, 153. Plimpton V. Somerset, 624, 629. Plotke, In re, 185. Plumas County v. Wheeler, 422. Plumb V. Christie, 563. Plummer v. Northern Pac. R. Co., 230, 589, 753. Plymouth, The, 158. Poindexter v. Greenhow, 170, 171, 357. Point Roberts Fishing Co. v. George & Barker Co., 71. Pokegama Sugar Pine Lumber Co. v. Klamath River Lumber & Improve- ment Co., 151. Pollard V. Hagan, 468. Pollock V. Farmers' Loan & T. Co., 209, 451. Ponder V. Graham, 87. Pool V. Simmons, 479. Poole V. Fleeger, 29, 356. Pooler V. U. S., 167. Pope V. Macon, 618. Pope V. Williams, 647, Porter v. Glenn, 753. Porter v. Hughes, 328. Porter v. Ritch, 538. Porter v. Rockford, R. I. & St. L. R. Co., 441. Porter v. Sabin, 152. Porter v. Vinzant, 398. Portland v. Cook, 732. Portland & R. R. Co. v. Deerin^, 408. Portueuf Irrigating Co. v. Budge, 502. Port of Mobile v. Watson, 750. Posey Tp. of Franklin County v. Se- nour, 485. Post V. Southern R. Co., 243. Postal Tel. Cable Co. v. State, 234. Post Pub. Co. V. Moloney, 665. Potlach Lumber Co. v. Peterson, 469, 481. Potter V. Selwyn, 181. Potts V. Riddle, 542, 566. Potts V. Smith Mfg. Co., 203. Potwin V. Johnson, 371. Pound V. Turck, 222. Powell, In re, 733. Powell V. Pennsylvania, 401, 437. Powell V. Sherwood, 417. Powell V. Spackman, 77. Powell V. State, 702. Power V. Telford, 604. Powers V. Detroit, G. H. & M. R. Co., 744. Powers V. McKenzie, 384. Powers' Appeal, 497. CASES CITED. [The figures refer to pages.] 799 Praigg V. Western Paving & Supply Co., 73. Prather v. U. S., 288. Pratt V. Breckinridge, 86. Pratt V. Jacksonville, 460. Pratt Institute v. New York, 570. Prentis v. Atlantic Coast Line R. Co., 1 1 ^. Prentiss v. Brennan, 639. Presby v. Klickitat County, 578. Prescott V. Illinois Canal, 69. Prescott Irr. Co. v. Flathers, 480. Presser v. Illinois, 73, 273, 543. President, etc., of Bank of Vincennes v. State, 681. President, etc.. of City of Paterson v. Society for Establishing Useful Manu- factures, 507. President, etc., of Oriental Bank v. Freeze, 606. Presidio County v. City Nat. Bank, 343. Press Pub. Co. v. Monroe, 266. Preston, In re, 419. Preston v. Finley, 654. Price v. State, 691. Priddie v. Thompson, 131. Prigg V. Pennsylvania, 303. Prince v. Crocker, 457. Prine v. Com., 679. Pringle, In re, 250. Prize Cases, 117, 270. Proclamations, Case of, 85. Proprietors of Piscatagua Bridge v. New Hampshire Bridge, 492. Prosser v. Callis, 665. Prout V. Starr, 150, 172. Prouty V. Stover, 342, 352. Providence Bank v. Billings, 74S. Providence Washington Ins. Co. v. Wes- ton, 365. Provident Sav. Life Assur. Soc. v. Ford, 154. Provrett V. Nance County, 65. Public Clearing House v. Coyne, 596. PuUen V. Wake County Com'rs, 443. Pullman's Palace Car Co. v. Pennsyl- vania, 247, 248. Pumpelly v. Green Bay & M. Canal Co., 490. Pundt V. Pendleton, 277. Purnell v. Page, 449. Putnam v. Morgan, 266. Puyallup V. Lacey, 472, 475. Q Quarg, Ex parte, 409. Queen, The, 624. Queen of Portugal v. Glyn, 167. Queenan v. Territory, 683. Quick Bear V. Leupp, 214. Quinlan v. Houston & T. 0. R. Co., 54. Quivey v. Lavyrence, 446. Race Horse, In re, 125. RadclifE's Ex'rs v. Brooklyn, 494. Rafferty, In re, 36. Rafferty v. Buffalo City Gas Co., 431. Ragland v. Anderson, 103. Rahrer, In re, 252. Railroad Commissioner, In re, 320. Railroad & Tel. Cos. v. Board of Equal- izers of Tennessee, 553. Railroad Tax Cases, 581. Raleigh Iron Works v. Southern R. Co., 231. Ralph V. State, 690. Ram V. Lamley, 661. Ramsey v. People, 419. Randall v. Hamilton, 661. Randel v. Shoemaker, 710. Rand, McNally & Co. v. Hartrauft, 563. Rankin v. Herod, 149. Rapier, In re, 265, 393. Rash V. HoUoway, 295. Rasmussen v. Baker, T7. Rasmussen v. Idaho, 186, 226. Rasmussen v. U. S., 21. RatcliflEe v. Anderson, 88. Ratterman v. Western Union Tel. Co., 235. Rawlins v. Georgia, 684. Rawson v. Brown, 685. Ray V. New York Bay Extension R. Co., 484. Raymond v. Chicago Union Traction Co., 545, 554, 581, 595. Raymond v. Danbury & N. R. Co., 630. Read v. Clearfield County. 417. Reading of Bills, In re, 379. Reagan v. Farmers' Loan & Trust Co., 172. Reariek v. Pennsylvania, 249. Recalling Bills, In re, 327. Rector v. State, 701. Red River Val. Nat. Bank v. Craig, 64, 747. Reece v. Knott, 621. Reed, Ex parte. 119. Reed v. Rice, 607. Reeves v. Corning, 73. Reg. V. Bradlaugh, 531. Reg. V. Brown, 696. Reg. V. Committee Men for South Hol- land Drainage, 499. Reg. V. Druitt, 420. Reg. V. Ramsay, 532. Reggel, Ex parte, 306. Reid V. Boyd, 298. Reid V. Colorado, 225, 293. Reid V. Mickles, 294. Reid V. Trowbridge, 562. Reid & Beam v. Southern B. Co., 233. Reilley v. U. S. 217. . Reinhart v. McDonald, 247. Reinken v. Fuehring, 433. Reiser v. William Tell Saving Fund Ass'n, 89. Reis V. Graff, 758. Reithmiller v. People, 71. Relyea v. Tomahawk Pulp & Paper Co., 602. Respublica v. Carlisle, 718. Republic Iron & Steel Co. v. State, 418. 800 CASES CITED. [The figures refer to pages.] Rex y. Broadfoot, 271. Rex v. Journeymen Tailors of Cam- bridge, 421. Rex V. Tayler, 529. Rex V. Wright, 664. Reynolds v. Board of Elducation of City of Topeka, 555. Reynolds t. Crawfordsville First Nat. Bank, 191. Reynolds v. Geary, 738. Reynolds v. TJ. S., 398, 533, 692. Rhines t. Clark, 62a Rhoads, In re, 748. Rhodes t. Sperry & Hutchinson Co., 352. Rhodes v. Walsh, 200, 348. Rhode Island y. Massachusetts, 29, 34, 102, 174. Rhode Island Hospital Trust Co. y. Armington, 447. Ribas y Hijo v. U. S., 142, 166, 177. Rice V. Ames, 287. Rice y. Foster, 374. Rice y. Palmer, 51. Rice y. Parkmau, 423. Rice y. Smith, 749. Rice y. Standard Oil Co., 243. Rich V. Chicago, 88. Rich y. Flanders, 710. Richards y. Clarksburg, 515. Richardson y. Akin, 603. Richardson v. Kaufman, 749. Richardson v. McChesney, 197, 342. Richland County v. Lawrence County, 511. Richman y. Consolidated Gas Co., 413, 743. Richmond y. Caruthers, 400. Richmond y. People of Porto Rico, 21. Richmond, F. & P. R. Co. v. Louisa R. Co., 483, 731. Richmond & A. R. Co. y. R. A. Patter- son Tobacco Co., 220, 247. Ridley y. Sherbrook, 11, 324, 524, 645. Ridenour y. Saffln. 461. Riggins y. U. S., 548. Rigney y. Chicago, 492, 495. Riley y. Lee, 651. Riley y. Rochester, 515. Rilley y. Charleston Union Station Co., 478. Rio Grande Sampling Co. v. Catlin, 417. Risley v. Utiea, 545, 571. Ristine y. State, 365. Ritchie y. Boynton, 425. Riverside County y. San Bernardino County, 100. Riverside Mills y. Atlantic Coast Lme R. Co., 217. Roach v. Van Riswick, McArthur & Mackey, 275. Road Imp. Dist. No. 1, y. Glover, 65, 67, 585. Roanoke Cemetery Co. v. Goodwin, 430. Bobb, In re, 306. Robb y. Connolly, 306. , „ „ „ Robbins y. Milwaukee & H. R. Co., 499. Robbins v. Shelby County Taxing Dist., 220. 246, 250. Robbins y. State, 691. Robert Dollar, The, 223. Roberts, Ex parte, 395. Roberts, In re, 304, 306, 593. Roberts v. Bolles, 188. Roberts v. Evanston, 60. Roberts v. Hackney, 90. Roberts y. Jacob, 59l. Roberts v. Reilly, 304. Roberts y. Smith, 470. Roberts y. State, 88, 693, 697, 702. Roberts y. U. S., 13. Robertson v. Baldwin, 10, 141, 147, 542. Robertson v. Carson, 163. Robertson v. Van Cleave, 750. Robinson v. Hamilton, 401. Robinson v. Kerrigan, 96. Robinson v. Lee, 357. Robinson v. Richardson, 613. Robinson v. State, 712. Robinson y. Suburban Brick Co., 237. Robinson v. Swope, 479. Robinson's Estate, In re, 516, 593. Robson v. Doyle, 67. Roby y. Smith, 292. Rochester R. Co. v. Rochester, 738. Rockingham County Light & Power Co. V. Hobbs, 476, 480. Rockingham Ten Cent Sav. Bank v. Portsmouth, 465. Rodenbaugh v. Philadelphia Traction Co., 604. Rodgers v. Adsit, 295. Roeder y. Robertson, 295, 411, 558. Rogers v. Alabama, 556. Rogers y. Buffalo, 674. Rogers v. Burlington, 280. Rogers v. Evarts, 420, 422. Rogers y. Jacob, 67, 649. Rogers v. Peck, 707. Kohlf V. Kasemeier, 421, 430. Roller V. Holly, 592. ' Rollins V. Love, 603. Rood v. Wallace, 320. Kooney v. North Dakota, 714. Roosevelt v. Godard, 67. Roosevelt Hospital v. New York, 461. Kopes V. Clinch, 125. Rose V. Himley, 13i. Rose V. Rose, 599. Rose V. State, 60. Rosenbloom v. State, 68, 462. Ross, In re, 143, 714. Ross V. Board of Chosen Freeholders of Essex County, 95. Ross V. Desha Levee Board, 433. Ross v. Irving, 600, 623. Ross V. Kendall, 554. Ross y. Lipscomb, 65, 66. Ross y. Whitman, 84. Rosser, In re, 588. \ Rosson V. State, 324, 323. Rothermel v. Meyerle, 549. Roundtree, Ex parte, 80. Rountree y. Adam^ Express Co., 164. CASES CITED. {The figures refer to pages.] 801 Rouse y. Thompson, 377. Rouse, Hazard & Co. v. Donovan, 590. Rowell T. Fuller's Estate, 623. Royall V. Thomas, 675. Royce v. Maloney, 667. Rubber Tire Wheel Co. v. Milwaukee Rubber "Works Co., 242. Ruch V. New Orleans, 434. Rudolph, In re, 295. Ruffin V. Commonwealth, 10. Ruggles V. Collier, 374. Ruggles T. Washington County, 721. Ruhstrat v. People, 30. Rumsey v. New York & N. E. R. Co., 491. Runkle v. U. S., 121. Russ V. com., 368. Russell T. New York, 396. Russell V. State, 645. Russie V. Brazzell, 49. Rutgers v. Waddington, 58. Ruth, In re, 563. Rutledge v. Krauss, 307. Rutteu V. Paterson, 75. Ryan v. Louisville & N. Terminal Co., 477. Ryman Steamboat Line Co. v. Com., 221. Sadler v. Langham, 479. Sadlier v. New York, 9. Saginaw Gaslight Co. v. Saginaw, 562, 564. Sah Quah, In re, 542. St. Anthony Falls Water Power Co. v. Board of Water Com'rs, 221. St. Benedict's Abbey v. Marion County, 585. St. Clair County v. Interstate Sand & Car Transfer Co., 247. St. George v. Hardie, 64, 225, 643. St. Helena Water Co. v. Forbes, 485. St. Joseph Plank Road Co. v. Kline, 563. St. Louis V. Rutz, 187. St. Louis V. Wiggins Ferry Co., 361. St. Louis V. Wortman, 228. St. Louis Brewing Ass'n v. St. Louis, 442. St. Louis County Court v. Griswold, 479. St. Louis, Ft. S. & W. R. Co. v. Mc- Auliffi, 492, 500. St. Louis, I. M. & S. R. Co. v. Davis, 148, 154, 248, 553. St. Louis, I. M. & S. R. Co. v. Hamp- ton, 232. St. Louis, I. M. & S. R. Co. v. Neal, 98. St. Louis, I. M. & S. R. Co. v. Paul, 418. St. Louis, I. M. & S. R. Co. v. State, 251, 550. St. Louis, I. 'M. & S. R. Co. v. Taylor, 98. St Louis Merchants Bridge Terminal R. Co. V. Callahan, 417. Bl.Const.L.(3d.Ed.)— 51 St. Louis & S. B. R. Co. v. Teters, 499. St. Louis & S. F. R. Co. v. Cross, 147. St. Louis & S. F. R. Co. v. Gill, 414, 415. St. Louis & S. F. R. Co. v. Hadley, 70. St. Louis & S. F. R. Co. v. Mathews, 408, 737. St. Louis & S. F. R. Co. v. State, 231, 232. St. Mary's Franco-American Petroleum Co. V. West Virginia, 551. St. Tammany Waterworks Co. v. New Orleans Waterworks, 732. Salem Iron Factory Co. v. Danvers, 465. Salem Mills Co. v. Lord, 14, 27. Salisbury v. Union & Advertiser Co., 663. Salmons v. Norfolk & W. R. Co., 189. Samish River Boom Co. v. Union Boom Co., 469, 487. Sample v. Broadwell, 14. Sample v. State, 698. Samuelson v. State, 409. San Antonio Gas Co. v. State, 430, 431, 432. San Benito County v. Southern Pac. R. Co.. 450. Sanborn, In re, 104. Sanborn v. Rice County Com'rs, 452, 456. Sandberg v. State, 27, 605. Sandel v. Atlanta Life Ins. Co., 743. Sanders v. Saxton, 27. Sanders v. State, 697, 703. Sands v. Manistee River Imp. Co., 222. Sanford v. Gregg, 172. Sanford v. People, 427, 430. San Francisco Pioneer Woolen Factory v. Brickwedel, 520. Sanipoli v. Pleasant Val. Coal Co., 80. San Joaquin & King's River Canal Irr. Co. V. Stanislaus County, 414. San Mateo County v. Southern Pac. R. Co., 581. Santa Clara County v. Southern Pac. R. Co., 540, 547, 581. Santa F6 Pac. R. Co. v. Davidson, 610. Santo V. State, 614. Saranac Land & Timber Co. v. Roberts, 166, 171. Sargent v. Hampden, 696. Sarony v. Burrow-Giles Lithographic Co., 61. Satterlee v. Matthewson, 84, 753 Saunders v. Board of Liquidation, 50. Savage v. Scovell, 401. Savannah, F. & W. R. Co. v. Postal Tei. Cable Co., 586. Savannah v. Hoist, 153. Savings Bank of Baltimore v. Weeks, 592. Sawrie v. Tennessee, 2512. Sawyer v. Blakely, 63. Sawyer v. Dooley, 73, 84. Sawyer v. Parish of Concordia, 154. Saylor v. Duel, 588. Sayre v. Orange, 487. 802 CASES CITED. [The figures refer to pages.] Scales V. Doe ex dem. Otts, 604. Scarll V. Dixon, 672. Schade v. Luppert, 618. Schaefer v. Werling, 584. Schaezlein v. Cabanniss, 288. Schintgen v. La Crosse, 585. Schmidt v. Indianapolis, 250. Schneck v. Jeffersonville, 89. Scholey v. Rew, 209. Sehollenberger v. Pennsylvania, 228, 252. Scholle V. State, 86. School City of Marion v. Forrest, 99. Schoolcraft's Adm'r v. Louisville & N. R. Co., 64. Schoolfield v. Rhodes, 191. Schoonmaker v. Gilmore, 162. Schradin v. New York Cent. & H. R. R. Co., 551. Schulherr v. Bordeaux, 377. Schuyler v. Pelissier, 181. Schuylkill Nav. Co. v. Preedley, 500. Schwab v. Berggren, 694. Schwarting, Ex parte, 538. Schwartz v. People, 377. Schwarz v. Dover, 95. Scott V. District Court of Fifth Judicial Dist., 589. . Scott V. Donald, 172. 252. Scott V. Farmers' & Merchants' Nat. Bank, 432. Scott V. Jones, 164. Scott V. Neely, 150, 191. Scott V. Sanford, 258. Scott V. Smart's Ex'rs, 60. Scott V. Stansfield, 12. Scott V. The Young America, 158. Scott V. Toledo, 471, 586. Scoville V. Brock, 93. Scranton, Appeal of, 733. Scranton Gas & Water Co. v. Dela- ware, L. & W. R. Co., 486. Scudamore, Ex parte, 592. Seaboard Air Line R. Co. v. Railroad Commission of Alabama, 438, 558, 577, 743. Seale v. State, 251. Seaman v. Netherclift, 662. Sears v. Cottrell, 68, 71, 352. Seattle v. Hinckley, 897, 598. Second Ward Sav. Bank v. Schranck, 746. Secor V. gingleton, 172. Secretary v. McGarrahan, 95. Sedgwick v. Stanton, 850. Seeley v. Stevens, 68. Seeleyville Coal & Min. Co. v. McGlos^ son, 418. Seitz V. Messerschmitt, 26-, 27. Selden v. Delaware & H. Canal Co., 494. Selectmen of Clinton v. Worcester Con- sol. St. R. Co., 65. Sellers v. Hayefi, 550. Semayne's Case, 609. Senate Bill, In re, 103. Senate File, In re, 52. Senate Resolution, In re, 314. Seneca County Bank v. Lamb, 374. Sere v. Pitot, 163. Serralles v. Esbri, 724. Serra v. Mortiga, 682. Servonitz v. State, 411. Seven Bishops, Case of, 670. Sewell V. State, 52. Sewing-Machine Compa'nies' Case, 141. Shaffer v. U. S., 687. Shallow V. Salem, 89. Shapleigh v. San Angelo, 729. Sharp, In re, 539. Sharpless v. Philadelphia, 72, 456. Shasta Power Co. v. Walker, 474, 477. Shaw v. Brown, 291. Shaw V. City Council of Marshalltown, 505, 643. Shaw V. McCandless, 223. Shaw v. Quincy Min. Co., 164. Sheffield, In re, 448. Shelby Ice & Fuel Co. v. Southern R. Co., 232. Shelley v. Westeott, 603. Shell V. Matteson, 598. Shelton v. Tiffin, 163. Shepard v. Barron, 65. Shepard v. Ins. Co., 124. Shepard v. Wood, 444. Shepherd's Point Land Co. v. Atlantic Hotel, 722. Sheppard v. Dowling, 352, 549. Sheppard v. Steele, 627. Sherlock v. Ailing, 221, 250. Sherlock v. Winnetka, 459. Sherman v. Buick, 479. Sherman v. People, 681. Sherrill v. O'Brien, 344. Sherry v. Perkins, 422. Sherwood v. Powell, 662. Shewalter v. Lexington, 149. Shickell v. Berryville Land & Imp. Co., 603. Shields v. Coleman, 182. Shields v. Ohio, 740. Shinn v. Cunningham, 728. Ship-Money, Case of, 85. Shitz v. Berks County, 457. Shively v. Bowlby, 278. Shoe V. Nether Providence Tp., 472. Shoemaker v. Nesbit, 12. Shoemaker v. U. S., 276, 479. ShoU V. German Coal Co., 478. Shore & Bro. v. Baltimore & O. R. Co., 258. Shortall v. Puget Sound Bridge & Dred- ging Co., 419. Shoshone Min. Co. v. Rutter, 153. Shotwell V, 'Moore, 442, 448. Shoultz V. McPheeters, 839. Shover v. State, 528. Shrader, Ex parte, 405. Shrawder v. Snyder, 756. Shreveport v. Schulsinger, 437. Shreveport Traction Co. v. Shreveport, 3S9, 728, 742. Shular v. State, 691. Sibila V. Bahney, 403. Siebert, In re, 92. CASES CITED. [The figures refer to pages.] 803 Slebold, Ex parte, 392, 650. Siegfried v. Raymond, 359. Sievers v. Boot, 494. Sillcman v. Board of Water Com'rs, 442. Sill V. ODrning, 83. Silliman v. Hudson River Bridge Co., Silverberg Bros. v. Douglass, 530. Silver v. Holt, 153. Simmons, In re, 498. Simmons v. State, 695. Simon v. Craft, 538, 587. Sims' Lessee v. Irvine, 186. Sims V. State, 700. Singer v. Maryland, 410. Singer Mfg. Co. v. McCollock, 89. Singer Mfg. Co. v. Wright, 462. Single V. Marathon County Sup'rs, 756. Sing Tuck v. U. S., 634. Sinking Fund Com'rs v. George, 379. Sinnot v. Davenport, 222. Sissou V. Board of Sup'rs of Buena Vis- ta County, 480. Sixth Ave. R. Co. v. Kerr, 492. Sizemore v. State, 263. Skinner v. Garnett Gold Min. Co., 418. Skinner v. Holt, 749. Skinner v. Wilhelm, 886. Slack V. Jacob, 67, 73, 95. Slack V. Maysville & L. R. Co., 464. Slaughter v. Com., 295. :4.Slaughter-House Cases, 405, 542, 561, 563, 639, 641. Slauson v. Racine, 74. Slaymaker v. Phillips, 650. Slingerland v. International Contracting Co., 565. Sluder v. St. Louis Transit Co., 375. Smalley v. Gearing, 565. Smeltzer v. St. Louis & S. F. R. Co., 230, 408. Smiley v. Kansas, 427. Smith, Ex parte, 538. Smith, In re, 70, 399. Smith V. Alabama, 184, 410. Smith V. Alphin, 401. Smith V. Applegate, 350. Smith V. Au Gres Tp. Mich., 190. Smith V. Bauer, 181. Smith V. Gale, 756. Smith V. Gould, 480, 485, 490. Smith V. Grayson County, 77. Smith V. Hard, 758. Smith V. Hollis, 446. Smith V. Indianapolis St. R. Co., 67, 68. Smith V. Jackson, 250. Smith V. Jennings, 343. Smith V. Jerojne, 609. Smith V. Lowe, 250. Smith V. Macon, 467. Smith V. New York, 734. Smith V. Raekliffe, 165. Smith V. Reeves, 26, 170, 171. Smith V. St. Louis & S. W. R. Co., 68, 225 Smith V. St. Paul, M. & M. R. Co., 80. Smith V. Shoi-t, 451. Smith V. Speed, 90, 588, 594. Smith V. State, 434, 556, 703. Smith V. State Board of Medical. Ex- aminers, 99, 574, 587, 596. Smith V. Strother, 82. Smith's Adm'r v. Smith, 373. Smoot V. People's Perpetual Loan & Bldg. Ass'n, 564. Smoot V. U. S., 214. Smyth V. Ames, 172, 413, 414, 415, 547, 573. Smythe, Ex parte, 367. Snare & Triest Co. v. Friedman, 189. Snead v. Central of Georgia R. Co., 18, 62, 217, 218, 230, 417. SnoufEer v. Cedar Rapids & M. City R. Co., 601. Snow V. U. S., 279. Snyder v. Baird Independent School Dist., 36. Socialist Party v. Uhl, 199. Society for Propagation of Gospel v. New Haven, 162. Society for Propagation of Gospel v. Wheeler, 7'52. Solomon v. Commissioners, 328. Solon V. State, 30, 352, 392, 435, 566. Sommersett's Case, 540. Soon Hing v. Crowley, 530. South V. State, 712. South Branch Lumber Co. v. Ott, 186. South Carolina v. Gaillard, 740. South Carolina v. Georgia, 233. South Carolina. V. U. S., 45, 388, 450. South Dakota v. North Carolina, 169, 174. Southern Electric Securities Co. v. State, 432. Southern Exp. Co. v. Goldberg, 220. Southern Gum Co. v. Laylin, 24. Southern Illinois & M. Bridge Co. v. Stone, 470, 472, 473, 475, 478, 479. Southern Indiana Exp. Co. v. United States Exp. Co., 243. Southern Pac. Co. v. Bartine, 98. Southern Pac. Co. v. Board of Railroad Com'rs, 415, 741. Southern Pac. Co. v. Interstate Com- merce Commission, 255. Southern Pac. Co. v. U. S., 97. Southern Pac. R. Co. v. Reed, 489. Southern R. Co. v. Com'rs of Board of Mecklenburg County, 505. Southern R. Co. v. Grizzle, 251. Southern R. Co. v. Kay, 453. Southern R> Co. v. King, 251. Southern R. Co. v. McNeill, 62. Southern R. Co. v. Mitchell, 247. Southern R. Co. v. North Carolina R. Co., 172. Southern R. Co. v. Railroad Commission of Indiana, 98, 551. Southern R. Co. v. St. Clair County, 453. Southern R. Co. v. St. Ijouis Hay & Grain Co., 256. Southern R. Co. y. Schlittler, 65. 804 CASES CITED. [The figures reter to pages.] Southern E. Co. v. Simpson, 187. Southern R. Co. v. Tift, 255, 256, 605. Southern S. S. Oo. v. Portwardens, 360. South Morgantown v. Morgantown, 69. South Na.shviUe St. R. Co. v. Morrow, 209. South West Imp. Co. v. Smith's Adm'r, 760. Southwick V. Southwiclv, 710. South &. N. A. R. Co. V. Highland Ave. & B. R. Co., 476. Spain V. St. Louis & S. P. R. Co., 68, 230. Spangler v. .Tacoby, 3S1. Sparf V. U. S., 684. Spaulding v. Andover, 511. Spaulding T. Lowell, 514. Speed's Estate, In re, 295. Speer v. School Directors, etc., of Bor- ough of Blairsville, 367. Spencer, Bx parte, 415. Spencer v. Merchant, 461, 582. Spencer v. People, 463. Spencer v. State, 28. Spencer v. Watkins, 148. Sperling r. Oalfee, 142. Spiegler v. Chicago, 99, 375. Spier V. Baker, 71. Spinney, Ex parte, 409. Spokane t. Camp, 375. Spooner v. McConnell, 281. Spraggins v. Houghton, 647. Sprague v. Dorr, 470. Spraigue v. Thompson, 74, 225. Spratlin v. St. Louis Southwestern R. Co., 219. Spratt V. Helena Power Transmission Co., 76. Springer v. U. S., 209. Spring V. Inhabitants of Hyde Park, eoo. Spring Val. Waterworks v. San Francis- co, 490. Sproule V. Fredericks, 54. Spurgeon v. Rhodes, 99. Spurr T. Travis, 426. Stadtler v. School Dist. No. 40, 634. Standard Oil Co. v. Com., 67, 396. Stanford v. Coram, 724. Stanislaus County v. San Joaquin & K. River Canal & Irr. Co., 414, 415. Stanley, Ex parte, 698. Stanley v. Schwalby, 166. Stanton v. Board of Sup'rs of Essex County, 86, 375. Starin v. New York, 155. Starin v. U. S., 120. Starks v. Sawyer, 599. Starnes v. Albion Mfg. Co., 415, 547. Starr Burying Ground Ass'n v. North Lane Cemetery Ass'n, 485. State, Ex parte, 305, 306. State V. Adams, 649. State V. Adams Exp. Co., 37, 233. State V. Adams Lumber Co., 428. State V. Addison, 565. ■ State V. Ah Ohuey, 688. State Y. Aiken, 403. State V. Alabama Bible Soc, 745. State V. Aldrich, 433. State V. Allen, 580. State V. Aloe, 546. State V. Anderson, 71. State V. Andrae, 83. State V. Anson, 69. State V. Ardoin, 711. State V. Armeno, 410. State V. Armour Packing Co., 430. State V. Associated Press, 429, 566. State v. Atchison, T. & S. F. R. Co., 232. State V. Atlantic Coast Line R. Co., 98. State V. Baker, 416, 711. State V. Baldwin, 691. State V. Bank of Commerce, 466. State V. Bank of Bast Tennessee, 334. State V. Barber, 376. State V. Barnes, 323. State V. Barrington, 686. State V. Bates, 640, 683. State V. Bayer, 249, 250, 552, 643. State V. Beach, .678. State T. Becker, 64. State V. Behimer, 699. State V. Bell, 20^ 557. State V. Berkley, 692> State V. Berlin, 691. State V. Billings, 538. State V. Bixman, 403, 467. State V. Blaisdell, 199, 377. State V. Blake, 28, 344. State V. Blalock, 322. State V. Board of Assessors, 359. State T. Board of Oom'rs of Washing- ton County, 335. State V. Board of Dental Examiners, 601. State V. State V. State V. Board of Education, 760. Board of Ins. Com'rs, 293. Board of Sup'rs of Coahoma County, 328. State V. Board of Trustees of Westmin- ster College, 745. State V. Boasso, 697. State V. Bobleter, 316. State V. Bolden, 71. State V. Bond. 711. State V. Boone County, 483. State V. Boucher, 321. State V. Bowman, 100, 349, 381. State V. Boynton, 307. State V. Bradford Sav. Bank, 27. State V. Bradshaw, 750. State V. Braxton County Court, 64. State V. Brennan's Liquor, 579, 614, 615i State V. Brian, 366. State V. Brill, 95. State V. Bristol, 320. State V. Brown, 263, 380. State V. Brownfield, 556. State V. Brown & Sharpe Mfg. Co., 418. State T. Bryan, 60, 76, 78, 80. State V. Buchanan, 13, 27, 416, 443. State V. Buckeye Pipe Lme Co., 427. State V. Buckley, 381, 690. CASES CITED. [The figures refer to pages.] 805 State V. Buckman, 27. State V. Budge, 374. State V. Burdge, 99. State V. Blirrow, 78. State V. Butler, 725. State V. Cafeery, 565. State V. Cain, 65. State T. Calnan, 520. State V. Caldwell, 712. Stat© V. Campbell, 402. State T. Cantwell. 733. State V. Capdevlelle, 365. State V. Carr, 88. State v. Carter, 711. State V. Cedaraski, 507, 518, 520. State V. Chandler, 529. State V. Chapman, 410. State r. Chase, 95. State T. Cheetham, 321. State V. Chicago, M. & St. P. R. Co., 218, 219, 221, 230, 251. State V. Chicago & N. W. R. Co., 442, 738 State' V. Chilton, 25, 316. State V. Chittenden, 83, 96, 288, 389, 435, 592. State T. Cincinnati Gaslight & Coke Co., 564. State V. City Council of Cheyenne, 600 State V. Clancy, 90. State V. Clark, 412. State V. Clinton, 734. State V. Cloudt, 27. State V. Cohen, 411. State V. Columbia, 25. State V. Common Council of Madison, 512. State T. Comptroller, 357. State V. Comstock, 682. State T. Continental Tobacco Co., 431. State V. Cook, 77, 540. State T. Corbett, 409. State V. Corron, 732. State T. Corson, 294. State V. Court of Common Pleas of Morris County, 376. State V. Cox, 53, 78. State V. Crombie, 99. State V. Cross, 700. State V. Crounse, 327. - State V. Crumbaugh, 575. State V. Cudahy Packing Co., 427. State V. Cunningham, 102, 379. State V. Curler, 66. State V. Currens, 64, 293. State V. Dahl, 600. State T. Dalton, 412. State V. Davidson, 367. State 7. Davis, 601, 687. State V. Dawson, 696. State V. Day, 702. State V. Denny, 514. State V. Dering, 438. State V. Derry, 574, 579. State V. Dickinson, 691. State V. Direkx, 78. State V. District Board of School Dist. No. 8 of Edgerton, 53.0, State V. District Court of Hennepin County, 464. State V. District Court of Ramsey County, 483. State V. District Court of St. Louis County, 588. State V. District Court of Second Judi- cial Dist., 610. State V. Divine, 408. State V. Dodge, 412. State V. Doerring, 99. State V. Donaldson, 421. State V. Doty, 594, 625. State V. Dowden, 712, 714. State V. Dowdy, 90. State V. Drayton, 439. State V. Driver, 707. State V. Duestrow, 712. State V. Duluth Board of Trade, 428. State V. Dunbar, 316. State V. Duncan, 63. State V. Dunn, 307. State V. Easterlin, 540. State V. Eastern Coal Co., 427, 428, 430. State V. Ebert, 681. State V. Edwards, 414, 609. State V. Ehrlick, 317. State V. Eldredge, 77. State V. Ellington, 343. State V. Emerson, 336. State V. Erickson, 349. State V. Evans, 600. State V. Exuiclos, 73. State V. Fagan. 70. State V. Fair, 325. State V. Favre, 54. State V. Felton, 377. State V. Ferris, 461. State V. Fidelity & Deposit Co., 454, 466. State v. Finch, 322. State V. Firemen's Fund Ins. Co., 427, 429. State V. First Nat. Bank, 435. State V. Fitzpatrick, 28. State V. Fletcher, 95. State V. Flint. 88. State V. Forcier. 409. State V. Fort, 68. State V. Fountain, 67, 80. State Y. Fourchy, 710. State V. Fox, 514. State V. Francis, 349. State V. Frazee, 366. State V. Frazier, 54. State V. Frear, 199, 344. State V. Freeman, 404, 412. State V. Froehlich, 367, 368, 435. State V. Froelich, 455. State V. Pry, 736. State V. Fylpaa, 750. State V. Gage, 427. State V. Galusha, 80, 81. State V. Galveston, H. & S. A. R. Co., 247, 553. 753. State V. Garbroski, 565. State V. Gardner, 410. State V. Garton, 450. 806 CASES CITED. [The figures refer to State State V. Gates, 93. 352. State V. Glasby, 250. State V. Gleasou, 10'2, 333, C2G. State V. Glenn, 685. State T. Glidden, 422. State T. Goldthait, 645. State V. Goodwill, 418. State V. Graham. 509, 688. State V. Grant, 316. State V. Gray, 555. State V. Great Northern R. Co., 374, 413, 578. State T. Greer, 693. State V. Griffen, 320. State V. Grossman, 530. State V. Guglielmo, 680. State V. Guilbert, 208, 344, 501. State T. Hackett, 384. State V. Hageman, 92. State T. Hager, 746. State V. Hairstou. 557. State V. Hall, 302, 304, 305. State T. Hallock, 329. State V. Halter, 25. State V. Hammer, 510. State V. Hammond Packing Co., 216. State V. Hanson, 24, 37. State V. Harbourne, 251. State V. Harden, 78. 80, 83. State V. Hardie, 681. State V. Harman. 691. State V. Harper, 517. State T. Hastings, 138. State V. Haun, 418. State V. Hawkins, 509. State V. Hefferman, 60. State V. Heidenhain, 403. State V. Height, 688. State V. Heinemann, 410. State V. Heirs of Zanco, 21 State V. Helms, 746. State V. Henderson, 461. State V. Henry, 71. State V. Hermann, 734. State V. Herried, 50, 51. State V. Herrmann, 370. State v. Hill, 137. State V. Hocker, 349. State v. Hogan, 552. State V. Hogrieyer, 397, 641. iState V. Holden, 640. State V. Holland,^ 97, 375, 550. State T. Horvoka, 601. State V. Hostetter, 78. State V. Hudson, 509. State V. Hughes, 679. State V. Hunter, 509. State V. Huston, 320. State V. Hyde, 85, 86. State T. Indiana & O. Oil, Gas & Mm. Co., 217, 250. State V. Ingram, 701. State V. Inman, 686. , State V. Ins. Co. of North America, 218. State V. Irvine, 743. State V. Jackman, 423. State V. Jackson, 569, 635, 638. 407. State State State State State State State State State State State State State State State State State State State State State State State State State 335. State State State State State State State State State State Mfg, State State State State State State State State State State State State State State State State State State State State State State State State State State tion State pages.] V. Jacksonville Terminal Co., 229, Jacobs, 688. Jamison, 700. Jersey City, 340, 370. Johnson, 84, 687, 688, 712. Jones, 334, 466, 680, 688. Judge of Section A, 530. Judkin, 669. Junkin, 666, 669. Ju Nun, 680. Justus, 422, 552. Kealy, 307. Kelly, 367. Kennedy, 27. Kiescwetter, 382. Kilburn, 27. King, 66. Kline, 376, 605. Kohnke, 54. Kolsem, 70. Krahmer, 723. 740. Kreutzberg, 421. Kruttschnitt, 462. Kumpfert, 410. Kyle, 78, 712. La Crosse County Court Judge, V. La Grave, 315. , V. Lancaster, 295. V. Lathrop, 462. V. Lawrence, 370. V. Laylin, 51. V. Lee, 61. V. Le Pitre, 714. V. Lewis, 626. V. Lindsay, 70. V. Livingston Concrete, Bldg. & , Co., 416, 437. V. Loomis, 418. V. Ludington, 403. V. Lupton, 625. V. McBride, 315. V. McCabe, 653. V. McClear, 620. V. McCoomer, 68. V. McCrillis, 423, 553. V. McGinnis, 398. V. McGough, 79. V. Mcintosh, 600. V. Mack, 276. V. McKee. 654. V. McMahon, 423. V. McMillan, 56. V. McNaspy, 307. V. Main, 470. V. Maine, 488, 679. V. Malheur County Court, 06. V. Mallory, 434. V. Manford, 409. V. Manning, 700. V. Mannion, 690. V. Marble, 410, 534. V. Martin, 349, 381. V. Maryland Institute for Promo- of Mechanic Arts, 555. V. Mathis, 65, 375. CASES CITED. [The figures reler to pages.] 807 State V. Matthews, 594. State V. Michel, 60, 68, 650, 710. State V. Mikesell, 703. State V. Millar, 76. State V. Miller, 509, 688. State V. AJilwaukee Gaslight Co., 502. State V. Missouri Guarantee Sav. & Bldg. Ass'n, 425, T24. State V. Missouri, K. & T. R. Co. of Texas, 427, 735. State V. Missoiri Pac. E. Co., ,93, 551. Sl;ate v. Mitchell, 690. State v. Moore, 365, 366, 713. State V. Moores, 60, 505; 511. State V. Morgan City, 52. State V. Morrill, 667. State V. Mortensen, 20. State V. Muir, 703. State V. Munroe, 701. State V. Murlin, 417. State V. Murphy, 389. State V. Murray, 542. State V. Napier, 228. State V. Nash, 315. State T. Nast, 146. State V. Neble, 95. State T. Nelson County, 367. State V. Nergaard, 434. State y. Nesbit, 397. State v. New, 480. State V. Newark, 372, 450. State V. Newman, 681. State V. New Orleans, 54, 70, 438. State V. New York, N. H. & H. R. Co., 88. State V. Nichols, 322. State T. Noble, 83. State V. Nolan, 60, 514. State v. Norman, 80, 703. State V. Northern Cent. R. Co., 454. State V. Northern Pac. R. Co., 71, 218. State T. Noyes, 375. State V. Ohio Oil Co., 27. State V. Omaha & O. B. Ry. & Bridge Co., 246. State V. O'Neil, 614. State V. O'Neill, 579. State V. Orr, 563. State V. Osawkee Tp., 367. State V. Osborn, 463. State V. Owen, 615. State V. Page, 87. State V. Parish, 701. State V. Parks, 712. State V. Parler, 80. State V. Parmenter, 78. State V. Parsons, 372. State V. Patterson, 557. State V. Paul, 355, 677. State V. Peacock, 607. State V. Peel Splint Coal Co., 67, 69, 70, 72. State V. Peet, 215, 217, 220. State V. Pell, 711. State V. Peterson, 321. State V. Phipps, 218. State V. Pilsbury, 507. State V. Pioneer Press Co., 653. State V. State V. State -vs 65. State V. State V. State T. State V. State V. State V. State V, State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State T. State V. State V. State V. State V. State V. State v. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State Y. State V. State V. house State V. State V. State V. State V. State V. State V. State V. State V. State V. ^tate V. State V. State T. State V. State V. 550. State T. State V. State V. 26. State V. State V. State V. State V. State V. Pitts, 370, 381. Pond, 376. Portland General Electric Co., Portland Natural Gas Co., 562. Powell, 51, 530. Railroad Commission, 86, 9<). Ramseyer, 412. Rankin, 250. Ray, 412. Redmon, 389, 407, 43S, 440. Richardson, 642, 710. Richcreek, 439, 565. Robb, 470, 563. Roberson, 94. Roberts, 71, 400, 440. Robins, 552. Robinson, 382. Rosewater, 667. Rost, 321. Russell, 196. Sadler, 315. St. Paul, M. & M. R. Co., 389. Savage, 95. Schaefeer, 710. Scheve, 530. Schlemmer, 402. Schlenker, 571. Schlitz Brewing Co., 427. Schmitt, 665. Schnelle, 682, 697. Schnitger, 342, 344. Scott, 342, 344, 345. Seagraves, 218. Sears, 750. Secretary of State, 52. Several Parcels of Land, 582. Shaffer, 702. Sheldon, 80. Shepherd, 90, 594, 051. Sheppard, 352. Sherod, 402. Shippers' Compress & Ware- Co., 427, 429. Shorey, 416, 539. Skeggs, 37, 68, 71, 78. Smiley, 64, 426. Smith, 95, 349, 433, 643. Snell, 538, 710. Snow, 64, 614. Snyder, 701. Sopher, 530. Southern R. Co., 99, 251. Speller, 543. Sponaugle, 25, 581. Springer, 583. Standard Oil Co.. 68. 220, 428. Standard Oil Co. of Kentucky, Stark County, 59. State Board of Canvassers, 66. State Dispensary Commission, Stearns, 315. Steele, 531. Stephenson, 87. Stewart, 303, 307, 422. Storey, 377. 808 CASES CITED. [The figures reler to pages.] State V. Stripling, 251. State T. Suffield & T. Bridge Co., 483. State V. Sullivan, 711. State v. Superior Court for Clarke County, 486i State T. Superior Court of King Coun- ty, 4«8. State V. Superior Court of Skamania County, 239. State V. Superior Court of Stevens Coun- ty, 485. State V. Superior Court, Spokane Coun- ty, 486. State V. Switzer, 702. State V. Taylor, 66, 81, 650, 700. State V. Terre Haute & I. R. Co., 70. State V. Tetu, 401. State V. Thoman, 317. State V. Thomas, 90. State V. Thbmpson, 68, 96, 97, 400, 684, 737. State V. Thome, 441. State V. Tingey, 80, 314. State V. Toledo, 516. State V. Tower, 294, 405. State V. Towery, 617. State V. Travelers' Ins. Co., 460, 547. State V. Trenton, 372. State v. Tucker, 460. State V. Tugwell, 667. State V. Tuttle, 649. State V. Tyrce, 714. State V. Underwood, 537. State V. Vail, 625. State V. Van Duyn, 381. State V. Vann, 540. State V. Van Wye, 654. State V. Virginia-Carolina Chemical Co., 246, 427. State V. Vogelsang, 759. State V. Wabash, St. L. & P. E. Co., 406. State V. Wagener, 97. State V. Waite, 14. State V. Walker, 410, 411 State V. Walsen, 317. State V. Washburn, 86. State V. Waters, 693. State V. Waters-Pierce Oil Co., 427. State V. Webber, 69. State V. Weber, 647. State V. Weiss, 530. State V. Welch, 711. State V. Wells, 92. State V. AVeston, 605. State V. Wheeler, 73, 553. State V. Whisner, 328. State V. Whitaker, 407. State V. White Eiver Power Co., 481. State V. Whitlock, 422. State V. Whittlesey, 753. State V. Wiggins Ferry Co., 247. State V. Wilcox, 410. State V. Wilforth, 543. State V. Williams, 27, 28, 439, 440, 505, 70S 713 State' V. Wilson, 333, 419, 431. State V. Winnett, 51. State V. Witherspoon, 427. State V. Wolfer, 323. State V. Woods, 714. State V. Workman, 543. State V. Worth, 460. State V. Yopp, 39a State V. Young, 374. State Board of Assessors v. Central R. Co., 462. State Board of Health v. Roy, 99, 596, 642. State Freight Tax Cases, 247. State of Illinois v. Illinois Cent. E. Co., 152, 349. State of Iowa v. Jones, 714. State of Mississippi v. Johnson, 111. State of Missouri v. Kansas City, Ft. S. & G. R. Co., 406. State Prison of North Carolina v. Day, 575. State Railroad Com. v. People, 100. State Tax on Foreign-Held Bonds, In re, 363, 453, 729. State Tonnage Tax Cases, 360. State Treasurer v. Wright, 450. State Trust Co. v. National Land Imp. & Mfg. Co., 181. State Water Supply Commission v. Cur- tis, 67. Steamship Co. v. Portwardens, 224. Stearns v. Minnesota, 741. Stearns v. U. S., 141. Stebbins, In re, 601. Steckert v. East Saginaw, 381. Steed V. Harvey, 547. Steele County v. Erskine, 89, 589. Steele v. State, 686. Stegenga, In re, 538. Steger v. Traveling Men's Bldg. & Loan Ass'n, 89, 725. Stein v. Bienville Water Supply Co., 732. Stein V. Morrison, 95, 366. Stephens v. Cherokee Nation, 605. Sternbach, In re, 208. Sterritt v. Young, 586. Stevens v. Brown, 293. Stevens v. Truman, 93. Stevenson v. Oofferin, 598. Stevenson v. Colgan, 70. Stevenson v. Hanyon, 530. Stewart v. Board of Sup'rs of Polk County, 69. Stewart v. Gardner, 566. Stewart v. Ohio River R. Co., 489. Stewart v. Rutland, 493. Stewart v. State, 698. Stickney v. Interstate Commerce Com- mission, 256. Stillwell V. Jackson, 68. Stillwell V. Kellogg, 626. Stilz V. Indianapolis, 508. Stimson Mill Co. v. Nolan, 576. Stockard v. Morgan, 250. Stockdale v. Rio Grande Western R, Co., 490. Stockton v. Baltimore & N. Y. R. Co.; 483. CASES CITED. 809 [The figures refer to pages.] Stockton & v. R. Co. v. Common Coun- cil of Stockton, 456, 457. Stockwell V. Coleman, 300. Stoddart v. Smith, 62. Stokes V. New York. 426. Stokes V. State, 688. Stolz V. Thompson, 402. Stone V. Oharlestown, 375. Stone V. Dana, 613. Stone T. Farmers' Loan & Trust Co., 742. Stone V. Fritts, 92, 470. Stone V. Mississippi, 387, 389, 436, 733, 737. Stone V. New York, 396, 608. Stone T. Paducah, 541. Stone V. Smith, 647. Stone V. Wisconsin, 741. Storrie v. Cortes, 722. Storti, In re, 707, 714. Story V. Electric R. Co., 489. Stowe V. Belfast Sav. Bank, 188. Stowe V. Newborn, 472. Strange v. Oconto Land Co., 64. Stratford v. Greensboro, 477, 479. Strauder v. West Virginia, 544, 556. Straus V. American Publishers' Ass'n, 429, 431. Straw V. Harris, 35, 372. Street v. Columbus, 93. Street v. Varney Electrical Supply Co., 418. Strieker, Ex parte, 594. Strickley v. Highland Boy Gold Min. Co., 481. Strother y. Lucas, 281. Stryker v. Board of Com'rs of Grand County, 188. Stuart V. Laird, 67. Stuart V. Nance, 316, 365. Stuart T. Palmer, 442, 573, 595. Stubbs V. People, 253. Stumpf V. Storz, 466. Sturges V. Crowninshield, 260, 748. Sturgis V. Spofford, 205. Stutsman County v. Wallace, 187. Sue, The, 557. Sugden v. Partridge, 68. Sullivan, In re, 188. Sullivan v. Gage, 365. Sullivan v. Gilroy, 673. Sullivan v. Texas, 730. Sully v. American Nat. Bank, 294. Sultan, In re, 306. Summers v. White, 181. Sumpter v. State, 593. Sumter County v. National Bank of Gainesville, 448. Sunbury & E. R. Co. v. Cooper, 364. Sunset Telephone & Telegraph Co. v. Pomona, 189. Supervisors of Election, In re, 338. Supervisors of Sadsbury Tp. v. Dennis, 513. Supreme Lodge K. P. v. England, 154. Surocco V. Geary, 396, 608. Sutherland v. De Leon, 74. Sutherland-Innes Co. v. Evart, 454. Sutter County v. Nicols, 481. Suydam v. Moore, 741. SwafEord v. Templeton, 153. Swaim v. U. S., 115. Swain v. SchiefEeliu 401. Swann v. Swann, 530. Swanson v. Ottumwa, 722. Swart V. Kimball, 621. Sweeney v. Baker, 651. Sweeney v. Coulter, 86, 318. Sweeney v. McLeod, 349. Sweeney v. Webb, 403. Swift V. Philadelphia & R. R. Co., 184. Swift V. Tyson, 188. Swift & Co. V. Newport News, 78, 79. Swift & Co. V. U. S., 217, 241. Swinburne v. Mills, 750. Swing V. Brister, 589. Swinuey v. Ft. Wayne, M. & C. R. Co., 492, 500. Swope V. Jordan, 725. Talbot V. Board of Com'rs of Silver Bow County, 22. Tampa Waterworks Co. v. Tampa, 414. Tandy v. Elmore-Cooper Live Stock Com. Co., 37. Tanner v. Treasury Tunnel, Min. & Re- duction Co., 478. Tappan v. Merchants' Nat. Bank, 448. Tarr v. Western Loan & Sav. Co., 380. Tarrance v. Florida, 556. Tarrance v. State, 556. Tayloe, Ex parte, 705. Taylor v. Adams Exp. Co., 190. Taylor v. Beckham, 83, 179, 342, 575. Taylor v. Carryl, 181. Taylor v. Chandler, 456. Taylor v. Com., 54, 307. Taylor v. Crawfordsville, 584. Taylor v. Gardiner, 621. Taylor v. Governor, 3. Taylor v. Kercheval, 95, 136. Taylor v. Louisville & N. R. Co., 147, 172. Taylor v. Morton, 102. Taylor v. Palmer, 461. Taylor v. Plymouth, 396. Taylor v. Porter, 572. Taylor v. Taylor, 77. Tazewell v. Herman, 78. Tecumseh Nat. Bank v. Saunders, 51. Templar v. State Board of Examinera of Barbers, 410. Tenement House Department v. Moe- schen, 60. Ten-Hour Law for St. Ry. Corporations, In re, 416. Tennessee v. Davis, 147, 153, 194. Tennessee v. Jackson, 305. Tennessee Coal, Iron & R. Co. v. Mc- Dowell, 748. Tenney v. Lenz, 467. Teralta Land & Water Co. v. Shaffer, 598. 810 CASES CITED. [The figures refer to pages.] Terre Haute & L. R. Co. v. Salmon, 408. Territory v. De Wolfe, 564. Territory v. Guyott, 280. Territory v. Hefley, 682, 693. Territory T. O'Connor, 280. Terry, Ex parte, 594, 685. Terry v. Heisen, 589. Texarkana & Ft. S. B. Co. v. Shivel & Stewart, 233. Texas v. Gaines, 194. Texas v. White, 32, 34, 49, 313. Texas Co. v. Stephens, 249. Texas & P. R. Co. v. Interstate Com- merce Commission, 216. Texas & P. R. Co. v. Southern Pac. R. Co., 426. Thalheimer v. Board of Sup'rs of Mari- copa County, 374. Thames Mfg. Co. v. Lathrop, 754. Thaw V. Ritchie, 275. Thayer v. Spratt, 179. Thiel Detective Service Co. v. McClure, 147. Thingvalla Line v. U. S., 126. Thoeni v. Dubuque, 589. Thomas A. Scott, The, 166. Thomas Jefferson, The. 157. Thomas v. Moultrieville, 460. Thomas v. Sorrell, 85. Thomas v. State, 722. Thomas v. Taylor, 101. Thomas v. Williamson, 68. Thomassou v. State, 563. Thompson, E)x parte, 733. Thompson, In re, 99, 541. Thompson v. Carr, 709. Thompson v. Cobb. 750. Thompson v. Com., 581. Thompson v. Darden, 225. Thompson v. German Val. R. Co., 319. Thompson v. Kidder, 80. Thompson v. Lee County, 756. Thompson v. McConnell, 185. Thompson v. Missouri, 711. Thompson v. Mitchell, 64. Thompson v. Morgan, 755. Thompson v. Perrine, 188. Thompson v. Powning, 664. Thompson v. Schenectady R. Co., 151. Thompson v. Utah, 711. Thompson v. Van Vechten, 181. Thompson v. Waters, 292. Thompson v. Whitman, 298. Thomsen v. Union Castle Mail S. S. Co., 238, 241. Thomson v. Dean, 179. Thomson v. Union Pac. R. Co., 450. Thorpe v. Rutland & B. R, Co., 352, 388 Thrift V. Com'rs of Elizabeth City, 562. Thurber v. Townsend, 599. Thurston v. Whitney, 535. Thweatt v. Bank of Hopkinsville, 755. Tice, Ex parte, 701. Tide-Water Co. v. Coster, 442, 458. Tierman v. Rinker, 248. Tiflft V. Buffalo, 602. Tift V. Southern R. Co., 255, 256. Tilford- V. Belknap, 424. Tims V. State, 75. Tiusley v. Anderson, 588. Tinsman, In re, 250. Tinsman v. Belvidere Delaware R. Co., 494. Tipton V. Parker, 344. Tittabawassee Boom Co. v. Cunning, 218, 224. Tod, In re, 304, 306. Todd V. Clapp, 89. Todd V. Kankakee & I. R. R. Co., 501. Toledo, A. A. & N. M. R. Co. v. Penn- sylvania Co., 420, 42], 422. Toledo, etc., R. Co. v. Continental Trust Co., 152. Toledo, St. L. & W. R. Co. v. Long, 418. Toledo Traction Co. v. Cameron, 165. Toledo, W. & W. R. Oo. v. Jacksonville, 438. Toledo & I. Traction Co. v. Toledo & C. I. R. Co., 485. Toll Bridge Co. v. Osborn, 465. Tomlinson v. Bainaka, 64. Tomsen v. Union Castle Mail S. S. Co., 238. Tonawanda v. Lyon, 584. Toncray v. Budge, 80, 88. Toney v. Macon, 518. Toney v. State, 419, 542. Tonnage Tax Oases, 68. Toronto Bank v. Lambe, 209. Town of Cherry Creek v. Becker, 78. Town of Cicero v. Chicago, 508. Town of Clarendon v. Rutland R. Co., 737. Town of Danville v. Pace, 603. Town of East Hartford v. Hartford Bridge Co., 507. Town of Jacksonville v. McConnel, 463. Town of Lake View v. Rose Hill Ceme- tery Co., 387. Town of Marietta v. Fearing, 507, 743. Town of Marksville v. Worthy, 398. Town of Mason v. Ohio River R. Co., 728. Town of Moutclair v. Amend, 424. Town of Nahant v. U. S., 471. Town of Ocean Springs v. Green, 375. Town of Orrick v. Akers, 396. Town of Pawlet v. Clark, 166. 'J'owu of Searsburg v. Woodford, 29. Townsend Gas & Electric Light Co. v. Hill, 67. Townsend v. Todd, 186. Tracy v. Muir, 592. Trade-Mark Cases, 2.36, 268. Trageser v. Gray, 403. Train v. Boston Disinfecting Co., 293, 399. Traiuor v. Maverick Loan & Trust Co., 581. Trebilcock v. Wilson, 213. Trenton Potteries Co. v. Oliphant, 431, 432. CASES CITED. [The figures refer to pages.] 811 Trevett v. Weeden, 58. Tribolet v. U. S., 237. Trigally v. Memphis, 623. Trinity College v. Hartford, 500. Trippet v. State, 581. Trist V. Child, 351. Trultt V. U. S., 119. Trust Co. of Georgia v. State, 431. Trustees of Freeholders & Commonalty of Brookhaveu v. Smith, 730. Trustees of Griswold College v. Daven- port, 580. Trustees of North Carolina University V. Mclver, 54. Trustees of Village of Saratoga Springs V. Saratoga Gas, Electric Light, Heat & Power Co., 85, 96, 98, 413. Tucker -v. Ferguson, 745. Turker v. Massachusetts Cent. R. Co., 490 Tucker v. Paris, 586. Tucker v. State, 600, 606. Tufrman v. Chicago, 519. TuUis V. Lake Erie & W. E. Co., 186, 417. Turley v. Logan Co., 349. Turner, In re, 548. Turner v. Althaus, 507. Turner v. American Baptist Missionary Union, 125. Turner v. Maryland, 358, 425. Turner v. Nye, 423. Turpin v. Burgess, 360. Turton v. Union Pac. R. Co., 194. Tuthill, In re, 47a 586. Twining v. New Jersey, 587, 643. Twitchell v. Pennsylvania, 677. Tyler, In re. 172. Tyler v. Hudson, 499. Tyler v. State, 344. Tyson v. Washington County, 92. u Ughbanks v. Armstrong, 553. UUoek, The, 22. Ulman v. laeger, 151. Ulmer v. Lime Rock R. Co., 56, 478. Ulsh V. Perry County, 449. Ulster Square Dealer v. Fowler, 654. Underground Electrical Rys. Co. v. Ows- ley, 148. Underground R. R. of City of New York V. New York, 729. Underbill v. Hernandez, 13. Underwood v. Lilly, 754. Union Bank v. Board of Com'rs, 722. Union Bank v. Hill, 208. Union Bank of Richmond, Va. v. Board of Com'rs of Oxford, 188. Union Bank of St. Paul v. Rugg, 748 Union Bridge Co. v. U. S., 96, 222. Union Ferry Co. of Brookliu, In re, 372. Union Pac. B. Co. v. Alexander, 172. Union Pac. R^ Co. v. Botsford, 688. Union Pac. R. Co. v. Burlington & M. R. Co., 167. Union Pac. R. Co. v. Lincoln County, 450. . Union Pac. R. Co. v. Peniston, 449, 450. Union Trust Co. v. State, 28. Union Trust Co. v. Trumbull, 385. Union Trust Co. v. Wayne Probate Judge, 94, 461. United Cigarette Mach. Co. v. Wright, 191. U. S. V. Adair, 220, -417, 545. U. S. V. Addyston Pipe & Steel Co., 237, 242, 243, 244. U. S. V. Allen, 167. U. S. V. American Naval Stores Co., 239. U. S. V. American Surety Co., 168. U. S. V. American Tobacco Co., 21D, 241. U. S. V. Ancarola, 542. U. S. V. Anthony, 645. U. S. V. Arjona, 263. U. S. V. Atlantic Coast Line R. Co., 230. U. S. V. Ballin, 201, 343, 349. U. S. V. Baltimore & O. R. Co., 451, 476, 487. U. S. V. Bariow, 265. U. S. V. Barnhart, 256, U. S. V. Barrett, 141. U. S. V. Bates, 097. U. S. V. Baum, 281. U. S. V. Bayard, 95. U. S. V. Belvin, 199. U. S. V. Bennett, 265. U. S. V. Bitty, 546. U. S. V. Black, 95. U. S. V. Blaine, 95. U. S. V. Blasiiigame, 287. U. S. V. Bowyer, 131. U. S. V. Boyer, 205, 227. U. S. V. Brawner. 704. U. S. V. Breen, 97, 288. U. S. V. Bridleman, 256. V. S. V. Bullington, 264. U. S. V. Burton, 120. U. S. V. Central Vermont Ry., 186. U. S. V. Chesapeake & O. Fuel Co., 240. U. S. V. Chicago, 167, 483. U. S. V. Chicago, K. & S. R. Co., 229. U. S. V. Circuit Court, 9th Circuit, Dist. of Montana, 192. U. S. V. Coal Dealers' Ass'n, 238, 240, 241. U. S. V. Colorado & N. W. R. Co., 231. U. S. V. Coombs, 236, 286. U. S. V. Corrie, 122. U. S. V. Craig, 218, 228, 393. U. S. V. Crosby, 608, 648. _i.U S. V. Cruikshank, 34, 543, 548, 639, U. S. V. Cutter, 119. U. S. V. Davis, 694. U. S. V. De Groat, 184. U. S. V. Delaware & H. Co., 67, 215, 232, 570. U. S. V. Detroit Timber & Lumber Co., 168. 812 CASES CITED. [The figures refer to pages.] U. S. V. Devereux, 25, 168. TJ. S. T. De Walt, 681. U. S. v. Dewey, 300. U. S. V. Dewitt, 392. U. S. V. Dillin, 593. U. S. T. Dodge, 594. U. S. V. Doo-noch-keen, 142. V. S. v. Duell, 68. U. S. V. Basson, 265. U. S. V. Eatou, 183, 394. U. S. V. Eddy, 611. TJ. S. V. Bliason, 119. U. S. v. Erie R. Co., 230, 232. U. S. V. Ferreira, 338. U. S. V. Fletcher, 121. U. S. v. Fox, 698. U. S. V. Frelinghuysen, 124. U. S. T. Furlong, 269. U. S. V. Gale, 199. U. S. T. Geddes, 229. U. S. V. Gillies, 168. U. S. V. Grand Rapids & I. R. Co., 124. U. S. V. Gratiot, 278. V. S. V. Great Northern R. Co., 230. TJ. S. V. Grimaud, 97. U. S. V. Grush, 269. TJ. S. V. Hadley, 171. TJ. S. V. Hanson, 100. U. S. y. Hanway, 718. U. S. y. Harmon, 654. TJ. S. y. Harris, 474, 648. TJ. S. V. Haskell, 702. U. S. y. Hay, 102. U. S. V. Heaton, 28. TJ. S. V. Heinszen, 21, 582. U. S. V. Holliday, 394. U. S. V. Holmes, 167. TJ. S. T. Holt. 100, 277. U. S. T. Hopkins, 237, 241, 262. U. S. V. Hoxie, 718. U. S. y. Hudson, 141, 183, 625. U. S. T. Hughes, 712. TJ. S. y. Insurgents, 718. TJ. S. T. James, 379. U. S. V. Joint Traffic Ass'n, 167, 237, 238, 239, 241. TJ. S. V. Jones, 119. U. S. V. Judges of United States Court of Appeals, 192. TJ. S. y. Ju Toy, 596. TJ. S. y. Kagama, 279. TJ. S. y. Kane, 422. TJ. S. y. Kerr, 190. TJ. S. y. liilpatrick, 190. TJ. S. V. Kochersperger, 264, 265. TJ. S. V. La Chappelle, 25. TJ. S. V. Lawrence, 706. TJ. S. T. Le Baron, 128. U. S. y. Lee, 85, 166, 171. U. S. y. Lee Huen, 393, 633. U. S. V. Leslie, 185. U. S. V. Lytle, 329. TJ. S. T. MacAndrews & Forbes Co., 238, 241, 243. U. S. y. McCrory, 166. TJ. S. y. Macdaniel, 183. U. S. y. McKee, 324. U. S. y. Marigold, 262, V. S. y. Martin, 416. TJ. S. y. Matthews, 97. U. S. y. Maurice, 128. TJ. S. y. Miller, 191. U. S. y. Mills, 142. U. S. y. Mitchell, 190, 718. U. S. y. Moore, 571, 643. TJ. S. y. Keweomer, 548. TJ. S. y. New Orleans, 192. U. S. y. Noojiu, 168. U. S. y. North Carolina, 168, 170. TJ. S. V. Northern Securities Co., 237, 239, 245, 566. TJ. S. V. One Hundred and Twenty-Nine Packages, 101. U. S. T. Ormsbee, 97, 288. U. S. T. Ortega, 156. U. S. V. Palmer, 134. U. S. V. Patterson, 239. U. S. V. Peters, 337. TJ. S. y. Philadelphia & R. R. Co., 623. U. S. y. Railroad Bridge Co., 483. U. S. T. Rathbone, 628. U. S. V. Rauscher, 307, 355. U. S. V. Realty Co., 214, 368. TJ. S. y. Reese, 648. U. S. T. Reid. 167. U. S. V. Rhodes, 548, 634. U. S. y. Romard, 288. U. S. V. Root, 115. U. S. y. Ross, 269. U. S. y. Sandoval, 101. TJ. S. y. San Francisco Bridge Co., 276. U. S. V. Sargent, 167. TJ. S. y. Schurz, 95. U. S. V. Shaw-Mux, 257. U. S. V. Sing Tuck. .596. TJ. S. y. 6.o0 Cases Tomato Catsup, 401. U. S. V. Slater, 227. U. S. V. Southern R. Co., 215, 217, 230 TJ. S. v. Standard Oil Co., 413. TJ. S. T. Standard Oil Co. of Indiana, 230. TJ. S. V. Standard Oil Co. of New Jer- sey, 241, 243. U. S. V. Swift & Co., 239, 431. TJ. S. V. Symonds, 119. U. S. V. Taft, 131. U. S. y. Texas, 102, 168, 176. U. S. y. The Queen, 624. U. S. y. Todd, 338. U. S. V. Trans-Missouri Freight Ass'n, 71, 238, 239, 241, 243. U. S. y. Tygh Val. Land Co., 167. TJ. S. y. Tynen, 606, 727. U. S. V. Union Pac. R. Co., 141. U. S. T. Vacuum Oil Co., 413. U. S. V. Villato, 257. U. S. V. Waddell, 642. TJ. S. V. Wagner, 167. TJ. S. v; Walker, 168. U. S. V. Warren, 168. U. S. V. Wells, 190. TJ. S. V. AVhite, 263. U. S. V. Wickersham, 131. U. S. V. Williams, 393, 534, 637, 638. TJ. S. V, U. S. V. 635. U. S. 611. U. S. V U. 'S Wilson, 121, 324. Wong Kim Ark, 632, 633, 634, V. Wong Quong Wong, 607, 610, Wootten, 265. .\- Workingmen's Amalgamated Council, 240. U. S. T. Zarafonitis, 190. U. S. V. Zucker, 690. United States Electric Power & Light Co. V. State, 465. United States Fidelity & Guaranty Co. V. Kamey, 28. United States Fidelity & Guaranty Co. V. U. S., 167. United States Freehold Land & Em- igration Co. V. Gallegos, 154. United States Life Ins. Co. v. Cable, 151. United States Tobacco Oo. v. American Tobacco Co., 241. Upton V. Hume, 666. Utah Min. & Mfg. Co. v. Dickert & My- ers Sulphur Co., 278. of Vallelly v. Board of Park Com'rs Park Dist. of Grand Forks, 375. Van Allen v. Assessors, 212. "Van Antwerp, In re, 452. Vanborne v. Dorrance, 503. Yan Brocklin v. Tennessee, 446. Vance v. Vance, 748. Vance v. W. A. Vandercook Co., 252. Van Cleve v. Passaic Valley Sewerage Com'rs, 505. Vanderheyden v. Young, 145. Van Deusen v. Newcomer, 538. Van Deventer v. Long Island City, 758. Vandeweghe v. American Brewing Co., 428. Van Home, In re, 545, 552. Vanhorne v. Dorrance, 56. Van Hoven, Ex parte, 119. Van Ness v. Pacard, 9. Van Valkenburg v. Brown, 632, 645. Van Vleet v. Sledge, 189. Van Vranken, Ex parte, 144. Varick's Eix'rs v. Briggs, 756. Varney v. Justice, 78. Varney & Green v. Williams, 490. Vaughn v. Harp, 94. Vaughn v. Scade, 620. Veazie Bank v. Feuno, 208, 209. Veazie v. Moor, 216, 221. Vela V. State, 702. Veto Power, In re, 325. Vicksburg v. Tobin, 361. Vicksburg Waterworks Oo. v. Vicks- burg, 578. Vicksburg & M. R. Oo. v. Putnam, 623. Victoria Lumber Co. v. Rives, 80. Victor Talking Mach. Oo. t. The Fair, 153. Vidal, In re, 177. CASES CITED. 813 [The figures refer to pages.] Vidal V. Girard, 529. Viemeister v. White, 72, 399, 569. ViUage of Bloomer v. Bloomer, 28. Village of Carthage v. Frederick, 423. Village of Fairview v. GifEee, 84. Village of Gloversville v. Howell, 376. Village of Hyde Park v. Oakwoods Cemetery Ass'n, 469. Village of Little Chute v. Van Camp, 96. Village of New Holland v. Holland, 605. Village of Norwood v. Baker, 586. ViUage of Twin Falls v. Stubbs, 480. Vincenheller v. Reagan, 734. Vindicator Consol. Gold Min. Co. v. Firstbrook, 417. Vinegar Bend Lumber Co. v. Oak Grove & G. R. Co., 478. Vines v. State, 296. Virginia, Ex parte, 556, 595. Virginia v. Rives, 556. Virginia v. Tennessee, 29, 356. Virginia v. West Virginia, 29, 176, 284, oo6. Virginia Coupon Cases, 729, 730. Vitzhum V. Large, 191. Vogel V. Gruax, 661. Voight V. Board of Excise Com'rs of Newark, 575. Voight V. Detroit, 584. Voight V. Wright, 358. Von Der Alie, In re, 539. Von Hoffman v. Quiucy, 512. Von Hoffman v. Quincy, 750. Voss V. Neineber, 165. w Wabash, St. L. & P. R. Co. v. Illinois, 246, 413. Wabash & B. Oanal Co. v. Beers, 179. Wade V. Chaffee, 537. Wade V. Travis County, 188. Wadleigh, Ex parte, 87. Wadleigh v. Newhall, 640. Wagner, Ex parte, 310. Wahl V. Franz, 147. Waite, In re, 14. •Waite V. Santa Cruz, 147. Walbridge v. Board of Com'rs of Russell County, 601. Walcott V. People, 453. Wales V. Whitney, 143. Walker, In re, 307, 538. Walker v. Cincinnati, 352, 456, 457. Walker v. Cronin, 422. Walker v. Flint, 181. Walker v. Halloek, 12. Walker v. Jameson, 389. Walker v. Marks. 186. Walker v. Sauvinet, 619, 644. Walker v. Shasta Power Co., 478, 4S0. Walker v. Tribune Co., 667. Walker v. Whitehead, 617. Wall, Ex parte, 377, 625. Wall V. Norfolk & W. R. Co., 253. Wallace v. Adams, 142. 814 CASES CITED. [The figures refer to pages.] Wallace v. Arkansas Cent. R. Co., 414. Wallace v. Board of Equalization, 80. Wallace v. Loomis, 372. Wallace v. Keno, 352. Wallace v. State, 702. Wallach v. Van Riswick, 719. Wallenburg v. Missouri Pac. R. Co., 638. Walling V. Michigan, 249, 296. Walp V. Mooar, 426. Walser v. Seligman, 298. AValsh V. Denver, 438. Walsh V. U. S., 144. Walston T. Com., 691. Walston V. Nevin, 584. Walter A. Wood Mowing & Reaping Mach. Co. V. Skinner, 178. Walter v. People, 684. Walters, In re, 399. Walterscheid v. Bowdish, 724. Walther v. Warner, 478. Warburton v. White, 187. Ward V. Congress Const. Co., 167. Ward V. Maryland, 204, 292, 295. Ward V. State, 377, 588. Ward V. Thomas, 334. AVarden v. Whalen, 661. Ward Lumber Co. v. Henderson-White Mfg. Co., 573. Ware v. Hylton, 125. Ware & Leiand Co. v. Mobile County, 250. Warfield v. Vandiver, 52. Waring v. Clarke, 157. Waring v. Mobile, 228, 359. Warner v. Searle & Hereth Co., 236. Warner v. State, 494. Warren v. Mayor, etc., 74. Warren v. Wilner, 590. Warren Mfg. Co. v. .actna Ins. Co., 295, 296. Washburn v. Pullman's Palace-Car Co., 151. Washington v. Oregon, 29. Washington Loan & Trust Co. v. U. S., 26. Washington Nat. Bank v. Daily, 610. Washington & B. Turnpike Co. v. Mary- land, 731. Wasteney v. Schott, 25. Waterbury v. Piatt Bros. & Co., 476. Water Front in City of New York, In re, 554. Waterloo Woolen Mfg. Co. v. Shanahan, 366. Waters v. Dixie Lumber & Mfg. Co., 603. Waters-Pierce Oil Co. v. State, 421, 427. Waters-Pierce Oil Co. v. Texas, 178. Watkins v. Glenn, 750. Watson V. Bonfils, 164. Watson V. Brooks, 164. Watson V. St. Louis, I. M. & S. R. Co., 230. Watson V. Watson, 14. Watson Seminary v. Pike County Court, 743. Watt V. Ligertwood, 594. AVaugh V. Riley, 599. Wayman v. Southard, 82. W. B. Mearshon & Co. v. PottSTille- Lumber Co., 246. W. C. Peacock & Co. v. Pratt, 64, 463,. 553. Weare Commission Co. v. People, 398. Weaver v. Pegely, 203. Webb V. Baird, 461. Webb V. Moore, 746. Webb V. York, 305. Webber r. State Harbor Com'rs, 468. Webber v. Virginia, 248, 267, 296. Webster v. Auditor General, 597. Webster v. Fargo, 584. Webster v. State, 549. Weed V. Binghamton, 601. Weigand v. District of Columbia, 71. Weil V. Calhoun, 376. Weill V. Kenfield, 79. 379. Weimer, Ex parte^ 325. Weimer v. Bunbury. 66, 609. Weimer v. Zevely, 596. Weir V. Norman. 248. Weir V. State. 65. Weirman v. U. S.. G93. 'i Weisberg v. Weisberg. 89. Weismer v. Douglas, 308, 4556. Weist V. WuUer, 747. Welch V. Cook, 727. Welch V. Milwaukee & St.! p. R. Co.,. 499. Welch V. Swasey, 375, 424. Welch V. Wadsworth, 72. Welch Water, Light & P. Co. v. Welch,. 730. Welhaven, The, 126. Weller v. Wheelock, 746. Wellington, In re, 64. Wellmaker v. Terrell, 68. Wells V. Bain, 49. Wells V. Clark, 190. Wells V. State, 694. Wells V. Weston, 456. Wells Fargo Exp. Co. v. State, 252. Welsh V. Cross, 598. Welsh V. State, 293. Welton V. Missouri, 219, 248. Wendover v. Tucker, 540. Wenham v. State, 415. Wertz V. U. S., 130. Wesley v. Eells, 357. • West Chicago St. R, Co. v. Illinois, 178.. Western Implement Co., In re, 28. Western Nat. Bank v. Reckless, 724, 726. Western Sav. Fund Soc. v. Philadel- phia, 511. Western Turf Ass'n v. Greenberg, 178,. 573, 636. Western Union Tel. Co. v. Alabama State Board of Assessment, 235. Western Union Tel. Co. v. Andrews,. 170, 171, 172. Western Union Tel. Co. v. Attorney General, 235. Western Union Tel. Co. v. Call Pub.. Co., 220, 245. Western Union Tel. Co. v. Chiles. 277. CASES CITED. [The figures refer to pages.] 815 Westeru Union Tel. Co. v. Huglies, 235. Western Union Tel. Co. v. Indiana. 553. Western Union Tel. Co. v. Julian, 81, Western Union Tel. Co. v. Louisiana R. Com., 77. Western Union Tel. Co. v. Massacliu- setts, 446. Western Union Tel. Co. v. Mayer, 295. Western Union Tel. Co. v. Missouri, 247. Western Union Tel. Co. v. Myatt, 82, 84, 335, 413, 414. Western Union Tel. Co. v. Pendleton, 234, 392, 435. Western Union Tel. Co. v. Pennsylvania R. Co., 473, 479, 486. Western Union Tel. Co. v. Riciimond, 44a Western Union Tel. Co. v. State, 74, 295. Western Union Tel. Co. v. Taggart, 235. Western Union Tel. Co. v. Texas, 235, 448. Western & Southern Life Ins. Co. v. €om., 378. Westminster, The, 190. Westminster Water Co. v. Westmins- ter, 735. Weston V. Charleston, 447. Weston V. City Council of Charleston, 212. Weston V. Herdman, 365. Weston V. Ryan, 50, 51. West River Bridge Co. v. Dix, 483, 731, 738, 741. Weyand v. Stover, 380. Weyerhaueser v. Minnesota, 582. Whallon v. Bancroft, 679. Wheaton v. Beecher, 666. Wheaton v. Peters, 266. Wheeler v. Essex Public Road Board, 502. Wheeler v. Herbert, 342, 372, 375. Wheeler v. Philadelphia, 371. Wheeler v. Bice, 61. Wheeler v. Wall, 467. Wheeler-Stenzel Co. v. Nat. Window- Glass Jobbers Ass'n, 238, 243. Wheeling Bridge Co. v. Wheeling & B. Bridge Co., 486. Wheeling, P. & 0. Transp. Co. v. Wheel- ing, 224, 360. Wheeling & B. Bridge Co. v. Wheeling Bridge Co., 728. Wheelock v. Lovfell, 513. Wheelock v. Myers, 605. Wheelock v. Young, 485. White, Ex parte, 411. White, In re, 304. White v. Burnley, 297. White v. Cannon, 32. White V. Carroll, 410. White V. Charlotte & S. C. R. Co., 499. White V. Crump, 736. While V. Hart, 735. White V. Holman, 411. White V. Kendrick, 61. White V. MeBride, 534. White V. Northwestern North Carolina R. Co., 488, 489. White V. Sun Pub. Co., 65. White V. Tacoma, 584. Whitehead v. Shattuck, 150. Whitehurst v. Coleen, 627. Whitely v. Mississippi Water Power & Boom Co., 500. White River Turnpike Co. v. Vermont Cent. R. Co., 493. White's Bank v. Smith, 223. Whitford v. Panama R. Co., 303. Whiting V. U. S., 130. Whitley. Ex parte* 409. Whitlock V. Hawkins, 352, 753, 757. Whitman v. Boston & M. R. Co., 500. Whitney v. Robertson, 125. Whitwell V. Continental Tobacco Co., 237, 238, 239, 241. Wicomico County v. Bancroft, 186. Widaman v. Hubbard, 151. Widmayer v. U. S., 668. Wiemer v. Louisville Water Co., 1C3. Wilcox v. Jackson, 119. Wilcox V. McClellan, 99. Wilder v. Bank, 154. Wiley V. Sinkler, 64. Wilkerson v. Utah, 707. Wilkes-Barre v. Garebed, 404. Wilkes' Case, 656. Wilkes V. Wood, 612. Wilkins v. Jewett, 423. Wilkins v. State, 409. Wilkison v. Board of Children's Guard- ians, 95. Willamette Iron Bridge Co. v. Hatch, 234. Willard v. Sturm, 749. Willcox V. Consol. Gas Co., 490. Willfong V. Omaha & St. L. R. Co., 2.31. Williams, Ex parte, 542. Williams, In re, 252, 417. Williams v. Armroyd, 299. Williams v. Augusta, 519. Williams v. Bruffy, 722. Williams v. Cammack, 373. Williams v. Chapman, 181. Williams v. Crabb, 147. Williams v. Eggleston, 64, 549. Williams v. Fears, 411. Williams v. Galveston, 589. Williams v. Mississippi, 556. Williams v. Nashville, 70. Williams v. Port Chester, 589. Williams v. Secretary of State, 342. Williams v. State, 68, 390, 550. Williams v. U. S., 490. Williams' Adm'r v. Newman, .')87. Willis v. Board of Com'rs of Wyandatte County, 188. Willis V. Kalmbach, 648. Willis V. Standard Oil Co., 467. Willner v. Silverman, 420. Wilmarth v. Burt, 14. Wilmington v. Bryan, 728. 816 CASES CITED. [The figures refer to pages.] Wilmington Star Min, Co, v. Fulton, 551. Wilmington & R. R. Co. v. Staufifer, 492. Wilmington & W. R. Co. v. Reid, 744. Wilshire, In re, 424, 435. Wilson, Ex parte, 681. Wilson V. Blackbird Creek Marsh Co., 220, 226. Wilson V. Chicago Sanitary Dist., 209. Wilson V. Edwards, 552. Wilson V. Head, 602. Wilson V. Iseminger, 747. Wilson V. Louisiana Purchase Exposi- tion Commission, 27. Wilson V. Noonan, 665. Wilson V. North Carolina, 546, 588. Wilson V. Pickering, 724, 726. Wilson V. Shaw, 21, 279. Wilson V. Simon, 747. Wilson V. Smith, 165. Wilson V. State, 679, 706. Wilson V. United Traction Co., 395, 413. Wilson V. Wood, 90, 605. Winchester & S. R Co. v. Com., 97, 551. Winuett v. Adams, 524. Winnipiseogee Lake Cotton & Woolen Mfg. Co. V. Gilford, 363, 453. Winpenny v. French, 350. Winthrop, In re, 115. Winthrop v. Lechmere, 57. Wisconsin v. Pelican Ins. Co., 27, 174. Wisconsin Cent. R. Co. v. Price Coun- ty, 446. Wisconsin Cent. R. Co. v. Taylor Co., 446. Wisconsin Cent. R. Co. v. U. S., 120. Wisconsin, M. & P. R. Co. v. Jacobson, 407, 737. Wisconsin River Imp. Co. v. Pier, 478, 477, 481. Wise V. Bigger, 343, 349. Wise V. Nixon, 155. Wise V. Withers, 144. Wiswall T. Sampson, 182. Witherspoon v. Duncan, 446. Wittenberg v. MoUyneaux, 428. Woldson V. Larson, 189. Wolfe V. McCauU, 83. Wolfe Tone's Case, 144. Wolsey V. Chapman, 119. Wong V. Astojia, 685, 686. Wong Him v. Callahan, 547. Wong Kim, In re, 634. Wong Wai v. Williamson, 547. Wood, Ex parte, 546. Wood V. Bellamy, 600. Wood V. Fitzgerald, 648. Wood V. U. S., 86. Woodard v. Brien, 370. Woodfolk V. Nashville & 0. R. Co., 500. Woodmere Cemetery v. Roulo, 469. Wood Mowing & Reaping Co. v. Green- wood Hardware Co., 428. Woodrough v. Etouglas County, 375. Woodruff V. North Bloomfield Gravel Min. Co., 490. Woodruff V. Parham, 248, 359. WoodrufE V. Trapnall, 357. Woods' Appeal, 54. Woods V. Uottrell, 579. Woodson V. State, 419. Woodward v. Lander, 672. Woodward v. Murdock, 323. Woodward v. State, 702. Wooster v. Bateman, 748. Wooster v. Crane, 153. Work V. State, 621. Wortman, In re, 643, 673. Wright V. Com., 543. Wright V. Cradlebaugh, 446, 588. Wright V. Hart, 426. Wright V. Lothrop, 671. Wright V. Louisville & N. R. Co;, 465. Wright V. State Board of Liquidation, 26. Wunderle v. Wunderle, 125. Wurts V. Hoagland, 423. W. W. Montague & Co. v. Lowry, 240, 241. Wyatt V. People, 90, 594. Wyatt V. Smith, 599. Wyatf V. State Board of Equalization, 103. Wyeth V. Board of Health of Cambridge, 374, 411, 559. Wynehamer v. People, 388. Wynkoop v. Cooch, 626. Wyoming Nat. Bank v. Brown, 724. Yadkin River Power Co. v. Whitney Co., 481. Yalabusha County v. Carbry, 333. Yarbrough, Ex parte, 645, 650. Yates V. Milwaukee, 426. Yates V. Robertson, 351. Yazoo & M. v. R. Co. v. Adams, 186. Yazoo & M. V. R. Co. v. G. W. Bent & Co., 233. Yazoo & M. V. R. Co. v. Harrington, 408. Yazoo & M. V. R. Co. v. Searles, 428. Yazoo & M. V. R. Co. v. Thomas, 744. Yeatman v. Foster County, 749. Yeomans v. Heath, 602. Yick Wo v. Crowley, 181. Yick Wo V. Hopkins, 438, 547. Yoe V. Hoffman, 321. Youghiogheny Bridge Co. v. Pittsburgh & C. R. Co., 486. Young America, The, 158. Young, Ex parte, 68, 152, 169, 172, 223, 403, 546, 575. Young V. Com., 69, 411, 412, 525. Young V. Jackson, 584. Young V. Lemieux, 426. Young V. Salt Lake City, 69. Young V. Wise, 627. Youngblood v. Sexton, 467. Younger v. Judah, 544. Yung Jon, Ex parte, 400. CASES CITED. [Th« flguru reter to pages.] 817 Zander ▼. Goe, 334. Zehnder t. Barber Asphalt Pay. Co., 5S4. Zelgler v. South & N. A. R. Co., 408. Zeisweiss v. James, 528. Bl.Coksi.L.(3d.Ed.)— €2 Zellars v. National Surety Co., 603. Zenger's Case, 655. Ziebold, In re, 572. Zimmerman v. Canfield, 480, 502. Zircle v. Sovithem K. Co., 474. Zolnowski r. Illinois Steel Co., 546. ;/>/.■-■ INDEX. [the figubes eefeb to faoes.] A ACTION, CAUSE OF, as a vested right, 602. ADJOURNMENT, of congress, may be ordered by President, when, 132. of state legislature, by governor, 325. ADMINISTRATIVE BOARDS AND OFFICERS, delegation of legislative pov/er to, 96. cannot create new criminal offenses, 96. requirement of due process of law applicable to, 595. ADMIRALTY, federal jurisdiction in, 157. territorial extent of, 157, 158. subjects of jurisdiction in, 158. in prize cases, exclusive, 161. no jury trial in, 627. ADMISSION OF STATES. power of congress in regard to, 281. ADULTERATION, of food products, federal statute against, 227, 393. state laws against, 401. ADVERTISING SIGNS, validity of laws regulating display and style of, 424. ADVISORY OPINIONS, by the courts, 103. ALIEN CONTRACT LABOR LAW, validity of, 228. ALIENS, jurisdiction of federal courts over, 162. naturalization of, 257. exclusion and deportation of, 393. entitled to equal protection of laws, 547. entitled to due process of law, 573. AMBASSADORS, to be appointed by President, 127. foreign, to be received by President, 133. may be dismissed by President, 133. cases affecting, federal jurisdiction of, 158. Bl.Const.L.(3d.Ed.) (819) 820 INDEX. [Tbe figures refer to pages.] AMENDMENT, Of federal constitution, 45. the first ten amendments, 46. eleventh amendment, 46. twelfth amendment, 47. last three amendments, 47. President's approval of, 48. of state constitution, 49-54. mode of amendment, 49. proceedings in legislature, 50. submission and election, 50. governor's approval, 51. promulgation of result, 52. province of the courts, 52. limits of power, 52. powers of constitutional convention, 53. effect of amendment, 54. of charter of corporation, when permissible, 740. AMNESTY, power of congress to grant, 122. distinguished from pardon, 322. ANCILLARY JURISDICTION, of federal courts, 151. APPELLATE JURISDICTION, of United States supreme court, 176. APPOINTMENTS TO OFFICE, to be made by President, 127. senate to confirm, 127. vacancies occurring during recess of senate, 129. inferior officers, 128. by state governor, 320. do not create contracts, 734. APPORTIONMENT, of federal representatives, 197. of members of state legislature, 341. of taxes, 442. APPRAISAL LAWS, as affecting obligation of contracts, 749. APPROPRIATION OP PROPERTY, under power of eminent domain, see Eminent Domain. APPROPRIATIONS, control of congress over, and expenditure of public funds, 213. no money to be drawn but in pursuance of, 289. control of state legislature over, 365. for bounties and charities, 366. ARBITRARY EXACTIONS, distinguished from proper taxation, 442. ARMS, right to bear, guarantied, 543. INDEX. 821 [The figures refer to pages.] AEMY, President's powers as commander In chief of, 114. articles of war and army regulations, 116. authority of congress over, 270. stipendiary, states may not maintain, 361. quartering of soldiers, 616. AB.MY REGULATIONS, origin and authority of, 116. ARREST, President not liable to, 111. members of congress privileged against, 200. members of state legislature privileged against, 348. when lawful, 536. without warrant, 536. on general warrants, 611. ARTICLES OF CONFEDERATION, adoption of, 40. provisions of, 40, 41. d^ects and failure of, 42. ASSEMBLY AND PETITION, right of, 668. secured by constitution, 668. meaning and extent of, 668-671. statements privileged, 671. ASSESSMENT OF DAMAGES, for property taken under power of eminent domain, 498. ASSESSMENT OF TAXES, requirement of due process of law applicable to, 582. ASSESSMENTS, LOCAL, requirement of equality and uniformity as to, 461. requirement of due process of law applicable to, 584. ATTAINDER, bills of, forbidden, 708. forfeiture as a consequence of, 718. ATTORNEY, regulation and licensing of, under police power, 409. privilege of, in trial and argument, 663. right of prisoner to assistance of, 694. AUTOMOBILES, regulation of use of streets by, 433. B BAIL, excessive, not to be required, 704. BANKRUPTCY, authority of congress over subject of, 260. when exclusive of state action, 260. constitutionality of national bankruptcy laws, 26a laws, when violate obligation of contracts, 748. 822 INDEX. [The figures refer to pages.] BARBERS, regulation and licensing of, under police power, 410. BEARING ARMS, right of, guarantied, 543. BETTERMENT LAWS, validity of, 599. BIBIiE, reading of, In public schools, 529. BICYCLES, regulation of use of streets by, 433. BILLBOARDS, validity of laws regulating erection of, 424, 490n. BILL OF RIGHTS, nature and oflBce of, 9. BILLS, legislative, introduction and passage of, 378. BILLS OF ATTAINDER, forbidden to be passed, 708. BILLS OP CREDIT, states may not emit, 357. BLASPHEMY, constitutionality of laws punishing, 397, 531. BOARDS, administrative, delegation of legislative power to, 96. requirement of due process of law applicable to, 595. BONDS, of United States, not taxable by states, 447. payment of damages In eminent domain proceedings In, 503. BOROUGHS, see Municipal Corporations. BORROWING MONEY, power of. In congress, 211. BOUNDARIES, of states, how fixed and determined, 28. between states, settlement of disputes as to, 173. of municipal corporations, legislative control of, 508. BOUNTIES, legislative, constitutionality of, 366. taxation for payment of, 455. BOYCOTTS, when illegal, 419. as interference with interstate commerce, 240. as combination in restraint of trade, 420. BREAD, police regulations fixing weight of, 425. BRIBERY, of legislators, a criminal offense, 849. INDEX. §23 [The figures refer to pages.] BRIDGES, interstate, control of congress over, 233. BUILDING REGULATIONS', validity of, as police regulations, 423. BUREAU OF STANDARDS, establishment and functions of, 261. BUSINESS, state engaging in, 27. municipal corporations engaging in, 516. see, also, Contracts; Labor; Occupation; Police Power; Profes- sions ; Trades. BY-LAWS, of municipal corporations, 517. c CfABINET, composition of, 117. to advise President in writing, 118. are agents of President, 118, 119. civil responsibility of, 120. mandamus to members of, 94, 121. succeed to presidency when, 109. may be authorized to appoint inferior officers, 127. authority to make rules and regulations, 119. CARRIERS, control of, under police power, 405. regulation of charges of, 413. interstate, taxation of, by states, 449. receipts from transportation of mails not taxable, 448. discriminations against passengers, when unlawful, 556. regulation of business of, 559. engaged in interstate commerce, see Commerce. CASES AT LAW AND IN EQUITY, what are, 147. CEDED DISTRICTS, Philippines, Porto Rico, and Canal Zone, 20. juri'sdiction of congress over, 274. CENSORSHIP, of the press, 658. CHINESE, exclusion and deportation of, 393. entitled to "equal protection of laws," 547. disqualification of, as witnesses, 554. prohibiting employment of, as laborers, 555. children of, born in America, are citizens, 634. CHRISTIANITY, as a part of the law of the land, 528. CHURCH AND STATE, union of, forbidden by American constitutions, 532. 824 INDEX. [The figures refer to pages.] CIGARETTES, validity of laws forbidding sale of, 400. CITIZENSHIP, as a ground of federal jurisdiction, 163. and naturalization, power of congress over, 257. interstate rights and privileges of, 292. provisions of fourteenth amendment as to, 631. purpose and effect of, 632. definition of, 633. native-born citizens, 633. women and children, 635. corporations, 636. Indians, 636. naturalization, 637. expatriation, 638. double citizenship in the United States, 638. privileges of citizens of the United States, 640. CIVIL RIGHTS, meaning of the term, 524. liberty of conscience, 527. personal liberty, 535. slavery abolished, 540. right to bear arms, 543. the pursuit of happiness, 544. equal protection of the laws, 544. civil-rights acts, 547. right to choose occupation, 558. freedom of contract, 566. marriage and divorce, 567. sumptuary laws, 568. education, 568. due process of law, 570. in revenue and tax proceedings, 580. in judicial action, 587. protection of vested rights, 596. unreasonable searches and seizures, 606. quartering of soldiers, 616. right to obtain justice freely, 617. trial by jury, 618. freedom of speech, 650. right of assembly and petition, 668. CIVIL SERVICE ACT, tenure of oflace thereunder, 130. CIRCUIT COURTS OF APPEALS, jurisdiction of, 177. CITIES, see Municipal Corporations. CLASSIFICATION, of municipal corporations, 517. of persons and property for purpose of taxation, 46L and equal protection of laws, 550. INDEX. g2& [The figures reler to pages.] CXDIN MONET, power of congress to, 212. states may not, 358. COLONIES, Porto Rico, Philippines, and Canal Zone, 20. British in America, position and government of, 38. COLORED PERSONS, equal civil rights of, see Equal Protection of Laws. citizenship of, 632. right of suffrage of, 647, 648. COMBINATIONS IN RESTRAINT OF TRADE3, federal statutes against, 236. state laws prohibiting, 426. strikes and boycotts as, 420. COMITY, see Interstate Law. COMMANDER IN CHIEF, President's powers as, 114. COMMERCE, power of congress to regulate, 214 et seq. origin of the power, 214. extent of the power, 215. what is included, 217. when exclusive, when concurrent, 219. navigation, 221. vessels, 223. regulation of ports and harbors, 224. embargo, 224. pilotage, 225. quarantine, 225. imports, 227. immigration, 228. railroads, 229. bridges, 233. telegraphs, 234. trade-marks, 236. penal legislation, 236. commercial law, 244. limitations on the power, 245. state interference with commerce power, 245. interstate commerce act, 253. commerce with Indian tribes, 256. state police power and the regulation of, 250. COMMERCIAL LAW, congress has no authority to establish a general code of, 244. COMMISSIONS, administrative, delegation of legislative power to, 96. requirement of due process of law applicable to, 595. COMMITTEES, legislative, power of, In examining witnesses, 343, 346. 826 INDEX. [The figures refer to pages.] COMMON LAW, adoption of, In America, 9, 39. interpretation of constitutions with reference to, 78. no common law of tlie United States, 183. not exclusive standard of due process of law, 571. COMMUTATION OF TAXES, constitutional validity of, 463. COMPACTS, between states, may be authorized by congress, 355. COMPENSATION, for private property taken for public use, 495. tribunal for determining, 495. method of assessing, 496. measure of, 497. evidence, 501. payment of, 502. payment to be in money, 503. CONDEMNATION PROCEEDINGS, see Eminent Domain. CONDITIONAL LEGISLATION, validity of, 377. CONFKIDERATE STATES, status of, 32. CONFEDERATION, ARTICLES OF, adoption of, 40. provisions of, 40, 41. defects and failure of, 42. CONFISCATION ACTS, validity of, 575. CONFLICT OF LAWS, see Interstate Law. CONGRESS, see, also. House of Representatives; Senate, overruling President's veto, 112. may be convened or adjourned by President, when, 132. power to establish inferior courts, 140. constitution of, 196. qualification of members of, 196, 197. election of members of, 197. meetings of, 197. organization and government of, 198. determination of contested elections, 199. privilege of members against arrest, 200. rules of procedure, 201. power to punish for contempts, 201. powers of, delegated and restricted, 202. powers of, when exclusive, when concurrent, 203. powers of, enumerated, 205. taxation, 206. money powers, 210. INDEX. 827 [The figures refer to pages.] CONGRE S S— Continued, borrowing money, 211. coining money, 212. legal tender, 213. appropriations and expenditure of public money, 213. regulation of commerce, 214. origin of the power, 214. extent of the power, 215. wiat is included, 217. when exclusive, when concurrent, 219. navigation, 221. vessels, 223. regulation of ports and harbors, 224. embargo, 224. pilotage, 225. quarantine, 225. imports, 227. Immigration, 228. railroads, 229. bridges, 233. telegraphs, 234. trade-marks, 236. penal legislation, 236. unlawful restraints, monopolies, and trusts, 236. commercial law, 244. ■ limitations on the power, 245. state interference with commerce power, 245. interstate commerce act, 253. commerce with Indian tribes, 256. naturalization, 257. bankruptcy, 260. standard of weights and measures, 261. punishment of counterfeiting, 262. postal system, 263. patents and copyrights, 266. establishment of courts, 268. definition and punishment of piracy, 268. war powers, 269. power to declare war, 269. armies, 270. government of the forces, 272. militia, 272. letters of marque, 274. government of ceded districts, 274. acquisition of territory, 277. disposition of public lands, 278. government of the territories, 278. admission of new states, 281. implied powers of, 284. limitations on powers of, 287. police power possessed by, 391. power to regulate federal elections, 650. 828 INDEX. [Tha figures refer to pages,] CX)NSCIENCE, freedom of, see Religious Liberty. CONSCIENTIOUS SCRUPLES, respect to be paid to, 534. CONSTITUTION, defined, 1. meaning of, in general public law, 2. what is essential to, 2. meaning of, in American law, 3. distinguished from statute, 3. written and un"written, 5. not the source of rights, 7. of the United States, 33-37. not a compact or league, 33. an organic, fundamental law, 34. a grant of powers, 35. the supreme law of the land, 36. establishment and amendment of, 43-48. federal, adoption of, 43. amendment of, 45. of states, establishment of, 48. reconstruction, 48. amendment o^, 40-54. judiciary as final interpreters of, 55. power to adjudge statutes unconstitutional, 56. construction and interpretation of, 75-81. of state, must not impair obligation of contracts, 721. CONSTITUTIONAL CONVENTION, powers and limitations of, 53. debates of, as an aid in interpreting constitution, 79. CONSTITUTIONAL GOVERNMENT, meaning of the term, 3. CONSTITUTIONAL LAW^, defined, 1. meaning of "unconstitutional," 4, 5. American, sources of, 8. CONSTITUTIONAL LIBERTY, secured by written constitutions, 2, 3. CONSTRUCTION, of statute, will be such as to avoid unconstitutionality, 66. of statute, by executive, respected by courts, 67. of constitutions, 75-81. intent, 76. popular sense of words, 79. uniformity, 77. eflfect to be given to whole, 77. common law, 78. not to be retrospective, 78. mandatory and directory provisions, 78. Implications, 78. INDEX. 829 [Tb* figures refer to pages.] CONSTRUOTION— Continued, grants of powers, 79. preamble and titles, 79. unjust or Inconvenient provisions, 79. contemporary and practical construction, 80. schedule, 81. words taken from other constitutions, 80. extraneous facts, 81. rule of stare decisis, 81. executive construction of laws, 329. of eminent domain statutes, to be strict, 475. of statutes, not retrospective, 754. CONSULAR COURTS, of the United States, organization and Jurisdiction of, 143. CONSULS, appointed by President, 127. foreign, recognition of, by President, 133. cases affecting, federal JurisdlcUon of, 156. CONTEMPTS, power of courts to punish for, cannot be abolished by statute, 00. power to punish for. In congress, 201. in state legislatures, 345. in the courts, 537, 593. CONTINENTAL CONGRESS, history of, 40. CONTRABAND PROPERTY, seizure and destruction of, 578. CONTRACTS, laws impairing, see Obligation of Contracts, cliarters of corporations as, 738. charter of municipal corporation, 506, 743. freedom of contract, 566. COPYRIGHTS, authority of congress to grant, 266. CORPORATIONS, citizenship of, for purposes of federal jurisdiction, 164 Interstate citizenship of, 295. federal, state taxation of, 449. delegation of power of eminent domain to, 472. franchises of, may be taken by right of eminent domain, 483. foreign, discriminations against, 557. citizenship of, 636. charters of, as contracts, 738. CORRUPTION OF BLOOD, as a consequence of crime, 718. COUNSEL, privilege of, in trial and argument, 663. right of prisoner to assistance of, 694 830 INDEX. [The figures refer to pagCB.] COUNTERFEITING, punishment of, to be fixed by congress, 262. COUNTIES, see Municipal Corporations. COURTS, as final interpreters of the constitution, 55. power of, to determine constitutionality of statutes, 56. rules for determining constitutionality, 60-75. the court, 60. full bench, 62. nature of the litigation, 63 parties interested, 63. necessity of decision, 65. construction, 66. executive construction, 67. presumption of legality, 68. reference to journals of legislature, 69. motives of legislature, 69. policy of legislation, 70. natural justice, 72. partial unconstitutionality, 73. preamble of statutes, 74. effect of decision, 75. construction and interpretation of constitution by, 75-81. powers of, not to be usurped by legislature, 87. nor by executive, 91. must not usurp legislative or executive powers, 92. cannot enjoin enactment of statute, 93. power to issue mandamus to executive oflScers, 94. will not decide political questions, 100. advisory opinions by, 103. appointment of inferior oflBcers may be vested in, 127, 128. federal, constitutional provisions for, 140. power of congress to establish, 140. enumerated, 141. territorial courts, 142. consular courts, 143. courts-martial, 143. military commissions, 145. jurisdiction of, see Jurisdiction. powers and procedure of, 180. independent of state courts, 180. what law administered by, 184. following state decisions, 185. practice, 189. adjunct powers of, 191. power to issue habeas corpus, 192. removal of causes from state courts to, 193. system of, in the states, 330. constitutional courts, 332. statutory courts, 334. judges, 336. INDEX. 831 [The figures refer to pages.] COURTS— Continued, jurisdiction, 337. process and procedure, 339. power of, to determine validity of police regulations, 439. duties of court and jury in civil cases, 621. COURTS-MARTIAL, establishment, powers, and procedure of, 143, CREDIT, BILLS OF, states may not emit, 357. CRIMES, against commerce, power of congress to punish, 236. against postal Jaws, 263. police regulations for prevention of, 395. not excused by religious views, 533. constitutional protection to persons accused of, 676. CRIMINAL PROSECUTIONS, constitutional provisions applicable to, 676. waiver of rights by defendant, 678. presentment or Indictment, 679. trial by jury, 682. privilege against self-criminating evidence, 686, confronting with witnesses, 690. compelling attendance of witnesses, 692. right to be present at trial, 693. assistance of counsel, 694. right to be heard, 696. speedy and public trial, 697. former jeopardy, 699. bail, 704. cruel and unusual punishments, 706. bills of attainder, 708. ex post facto laws, 709. suspension of habeas corpus, 715. definition of treason, 716. corruption of blood and forfeiture, 718. CRITICISMS, of government, 654. of public officials, 664. of candidates for office, 665. of courts and judges, 666. of literary compositions, 667. CRUEL PUNISHMENTS, not to be inflicted, 706. what are, 707. CRUELTY TO ANIMALS, validity of laws against, 398. CURATIVE STATUTES, validity of, 754. curing administrative action, 757. curing defective judicial proceedings, 750. •832 INDEX. [The figures reter to pages.] CURTESY, vested right to, 599. D DAMAGES, for private property taken for public use, 495. DEBTS, of municipal corporations, legislative control of, 512. taxes are not, 442. DBCLAEATORY STATUTES, validity of, 89. DEFENDANT, In criminal cases, rights of, see Criminal Prosecutions. DELEGATION, of legislative power, unlawful, 373. of power of eminent domain, 472. of legislative power by congress, 2S7. DENTISTS, regulation and licensing of, under police power, 99, 410. DEPARTMENTS, of government, mutual independence of, 82-102. heads of, when liable to mandamus, 94. constituting the cabinet, 117. succeeding to presidency, 109. may be authorized to appoint inferior officers, 127, 128. of state government, executive, 814. judicial, 330. legislative, 341. DEPORTATION OF ALIENS, federal statutes as to, 393. DIPLOMATIC RELATIONS, President's control over, 133. DIRECT TAXES, definition and nature of, 209. DIRECTORY PROVISIONS, not usually found in constitutions, 78. DISFRANCHISEMENT, meaning of, 672. as a punishment for crime, 672. discriminations as to offices, 673. loss of right of suffrage, 674. disqualification to be a witness, 674. ineligibility to office, 675. DISTRICT OF COLUMBIA, position of. In the Union, 19. neither a state nor a territory, 20. citizens of, cannot sue in federal courts, 163. control of congress over, 275. republican government does not obtain in, 313. INDEX. 833 [The figures refer to pages.] DISTURBING RELIGIOUS MEETINGS, validity of laws against, 403. DIVORCE, legislature may grant, 88n. regulation, of, by law, 567. does not impair obligation of contracts, 735. DOUBLE TAXATION, constitutional validity of, 464. DOWER, vested rights in, 599. DRUGGISTS, regulation and licensing of, under police power, 99, 410. DUE PROCESS OP LAW, constitutional guaranties of, 570. meaning of the term, 571. common law not exclusive standard of, 571. definition of, 572. what persons protected, 578. what property protected, 574. confiscation and forfeiture acts, 575. creation of liens, 576. regulation of property, 577. abatement of nuisances, 578. in revenue and tax proceedings, 580. summary processes not necessarily unconstitutional, 580. in eminent domain proceedings, 585. in judicial action, 587. jurisdiction, 590. proceedings In personam and in rem, 591. summary proceedings, 592. punishment of contempts, 593. erroneous judgments, 594. In administrative proceedings, 595. In criminal cases, see Criminal Prosecutions. DUPLICATE TAXATION, constitutional validity of, 464. DWELLING HOUSE, inviolability of, 607. when an entry may be forced, 608. unreasonable searches of, see Searches and Seizures. DYING DECLARATIONS, admissible as evidence In criminal cases, 690. E EASEMENTS, appropriation of, under power of eminent domain, 484. EDUCATION, furnishing of, is not interstate commerce, 217., right to acquire, 568. Bl.Const.L.(3d.Ed.)— 53 834 INDEX. [Tbe figures refer to pages,] EIGHT-HOUR LAW, for laborers, validity of, 416. ELECTION, oil adoption of constitutional amendment, 50. contested, may be tried by legislature, 87. of President and Vice-President, 105. of members of congress, 197. contested, how determined, 199. of members of state legislature, 344. regulation of, 649. right to participate in, see Suffrage, Right of. ELECTIVE FRANCHISE, see Suffrage, Right of. ELECTORAL COLLEGE, composition and duties of, 106, 107. ELECTORS, see Suffrage, Right of. ELECTRIC LIGHT AND POWER COMPANIES, exercise of power of eminent domain by, 480. ELECTROCUTION, not a cruel or unusual punishment, 707. ELEVENTH AMENDMENT, adoption of, 46. effect of, in abridging jurisdiction, 169. EMBARGO ACT, constitutionality of, 224. EMINENT DOMAIN, definition and nature of, 468. constitutional provisions relating td, 470. Is inalienable, 469. distinguished from taxation, 469. distinguished from police power, 470. by whom exercised, 471. United States, 471. municipal corporations, 472. private corporations, 473. legislative authority necessary to exercise of, 474. protection of private rights against, 475. the purpose must be public, 476. ipfhat property may be taken, 482. estates less than a fee, 482. property of state and United States, 482. franchises, 483. possession and enjoyment of estate, 484. streams, 484. materials, 485. extent of appropriations, 486. appropriation to new uses, 487. INDEX. 8:^5 [The figures refer to pages.] EMINENT DOMAIN— Continued, what constitutes a taliing, 489. impairment of value of property, 490. consequential and Indirect injuries, 493. compensation, 495. tribunal for determining, 495. method of assessing damages, 496. measure of compensation, 497. evidence, 501. payment of damages, 502. requirement of due process of law in, 585. not surrendered by legislative contract, 736. EMPLOYERS' LIABILITY ACT, federal, validity and terms of, 230. state, validity and terms of, 417. EMPLOYMENT, see Labor; Professions; Trades. EPILEPTICS, laws forbidding marriage of, 567. EQUAL PROTECTION OF LAWS, guarantied by fourteenth amendment, 544. meaning of the phrase, 545. what persons protected, 546. civil-rights acts, 547. local or special laws not prohibited, 549. class legislation, 550. tax laws, 553. competency of witnesses, 554. right to labor, 555. discrimination against colored citizens, 555. privilege of public schools, 555. jury service, 556. discriminations by carriers, 556. miscegenation, 557. foreign corporations, 557. EQUALITY, as a requisite of taxation, 459. EQUITY, powers and procedure of federal courts In, 150. ,' jury trial not claimable in, 626. I ESCHEAT, due process of law in proceedings for, 576. ESTABLISHMENT OF RELIGION, forbidden by American constitutions, 532. EVIDENCE, no vested rights in rules of, 604. self-criminating, prisoner cannot be compelled to give, 6S6. 836 INDEX. [The figures refer to pages.] EX POST FACTO LAWS, forbidden by the constitutions, 709. what are, 709. EXCLUSION OF ALIENS, federal statutes as to, 393. EXCLUSIVE PRIVILEGES, constitutional provisions against grant of, 561, 564. EXECUTIVE COUNCIL, in states, functions of, 317n. EXECUTIVE DEPARTMENT, responsibility of officers of, for official acts, 12-14. construction of statutes by, respected by courts, 67. separation of, from legislative and judicial, 82. nature of executive power, 82. powers of, not to be usurped by legislature, 86. nor by courts, 94. must not usurp legislative or judicial powers, 91. mandamus and injunction to, 94. of federal government, 105-139. of state, powers and functions of, 314-329. EXECUTIVE REGULATIONS, force and authority of, 136. EXEMPTION FROM TAXATION, as affected by requirement of equality and uniformity, 463. as a contract, 744. EXEMPTIONS, not generally contracts, 732. exemption from taxation, 744. EXPATRIATION, the right of, 638. EXPORTS, not to be taxed by states, 358. EXPOSITORY STATUTES, constitutionality of, 89. > EXTRA SESSION, of congress, power of President to call, 132. of state legislature, calling of, by governor, 325. EXTRADITION, interstate, 300. F FEDERAL CONSTITUTION, see, also. Constitution, nature and force of, 33-37, the supreme law of the land, 36. formation and ratification of, 43. amendment of, 45. guaranties republican government, 309. limitations imposed by, on state legislative power, 353. INDEX. 837 [The figures refer to pages.] FEDERAL CONSTITUTION— Continued, state police power, how limited by, 434. limitations on taxing power of states imposed by, 451. privileges of citizenship secured by, 640. does not confer right of suffrage, 645. FEDERAL COURTS, see Courts. FEDERAL ELECTIONS, authority of congress to regulate, 630. FEDERAL GOVERNMENT, established in the United States, 31. nature of, 31. FEDERAL JURISDICTION, see Jurisdiction. FEDERAL QUESTIONS, federal jurisdiction of, 152. FERRIES, federal or state regulation of, 222. FIFTEENTH AMENDMENT, meaning and effect of, 647. FIRECRACKERS, laws prohibiting explosion of, 404. FLAG, national or state, laws forbidding use of in advertisements, 29. FOOD, adulteration of, federal statute against, 227, 393. state laws prohibiting, 401. FOREIGN COMMERCE, see Commerce. FOREIGN CORPORATIONS, grant of right of eminent domain to, 473. discriminations against, 557. FORFEITURE, of property, must be judicially ascertained, 575. of political rights, 672. of estates, as a consequence of crime, 718. FORMER JEOPARDY, as defense to accusation of crime, 699. FOURTEENTH AMENDMENT, see Citizenship ; Due Process of Law ; Equal Protection of Laws ; Lib- erty ; Suffrage, Right of. FRANCHISE TAXES, requirement of equality and uniformity as to, 4G0. FRANCHISES, appropriation of, under power of eminent domain, 483, as vested rights, 601. disfranchisement, 672. 838 INDEX. [The figures refer to pages.] FRANCHISES— Continued, exclusive, grant of, 728, 730. of corporation, as contracts, 738,- FRAUD, police regulations designed to prevent, 425.. FRAUD ORDERS, authority of postmaster-general to issue, 120n. FREEDOM, see, also. Liberty. of conscience, 527. personal, 535. of speech and the press, 650. of contract, 566. FUGITIVES FROM JUSTICE, extradition of, 300. G GAMBLING, suppression of, under police power, 30S. GAME LAWS, validity of, as police regulations, 434. GAS COMPANIES, exercise of power of eminent domain by, 480. GENERAL WARRANTS, illegality of, 611. GOVERNMENT, form of, in the United States, 31. federal government, 31. a representative republic, 32. indestructible, 32. separation of three departments of, 82-104. cannot be sued, except by consent, 166. republican, guarantied to each state, 309. libels on, whether punishable, 654. GOVERNOR, power to veto amendment to state constitution, 51. mandamus and injunction to, 94. office and powers of, 314. independence of executive, 318. powers of state governor, 320. appointments to office, 320. commanding militia, 321. pardons and reprieves, 322. convening and adjourning legislature, 325. approval or rejection of bills, 326. executive construction of laws, 329. duties of, under federal constitution, 329. GRAND JURY, see Indictment. INDEX. 839 [The figures refer to pages.] GRANTS, of powers, construction of constitutions as to, 79. of legislative power to congress, express, 202. implied, 284. of jurisdiction, in state constitutions, 337. of power of eminent domain to corporations, 473. of monopolies and exclusive privileges, 560. protected as contracts, 730. of exemption from taxation, 744. H HABEAS CORPDS, power of federal courts to issue, 192. use of, in extradition proceedings, 306. suspension of, 715. HAPPINESS, pursuit of, right to, guarantied, 544. HARBORS, when subject to regulation of congress, 224. HAWAII, political status of, 20. HEALTH, police regulations in aid of, 399. HIGH SEAS, meaning of the term, 269. HOUSE OF REPRESENTATIVES, election of President by, 107. power of, to prefer impeachments, 136. composition of, 196. qualification of members, 197. apportionment of members, 197. election of members, 197. powers of, 198. determining contested elections to, 199. privilege of members from arrest, 200. rules of procedure, 201. power to punish for contempts, 201. HUSBAND AND WIFE, see Divorce; Dower; Marriage. r ILLEGAL CONTRACTS, have no obligation to be impaired, 735. IMMIGRATION, power of congress to regulate, 228. restriction of, as police regulation, 393. IMMORAL CONTRACTS, have no obligation to be Impaired, 735. 840 INDEX. [The figures refer to pagee.] IMMUNITIES, of citizens, secured by fourteenth amendment, 640, IMPAIRMENT, OF CONTRACTS, see Obligation of Contracts. IMPEACHMENT, of federal officers, 136. for what crimes, 137. what officers liable to, 137. judgment and sentence, 138. IMPLIED POWERS, construction of constitutions as to, 78. of congress, doctrine of, 284. of state legislature, 841. of municipal corporations, 514. IMPORTS, subject to commercial power of congress, 227. not taxable by states, 358. IMPRESSMENT, of seamen, 271, n. IMPRISONMENT, as a punishment for crime, 537. release from, on habeas corpus, 715. not a cruel or unusual punishment, 707. for debt, 539. INCEST, laws forbidding incestuous marriages, 567. INCOME TAX, as a direct tax, 209. i taxation of income from non-taxable securities, 447, 451. INDETERMINATE SENTENCE LAWS, constitutional validity of, 87. INDIANS, commerce with, regulated by congress, 256. sale of liquor to, forbidden, 394. citizenship of, 636. INDICTMENT, by grand jury, constitutional right to, 679. INFAMOUS CRIMES, prosecuted by presentment or indictment, 679. what are, 681. INFERIOR COURTS, deciding upon ponstitutionality of statute, 60. power of congress to establish, 140. power of state legislature to establish, 334. INFERIOR OFFICERS, personal liability of, for official acts, 14. federal, appointment of, 127. who are, 128. INDEX. 841 [The figures refer to pages.] INFORMATION, high crimes cannot be prosecuted by, 679. INHERITANCE TAXES, are not direct taxes, 209. equality and uniformity as to, 460. INJUNCTION, courts cannot enjoin passage of statute, 93, to executive officers, when lies, 94. cannot issue to President of United States, 111. to restrain violation of federal anti-trust act, 243. to governor of state, 319. INISTKEEPERS, to furnish equal accommodations for all, 548. state regulation of business of, 559. INQUISITORIAL TRIALS, constitutional provisions against, 686-COC. INSANE PERSONS, committQent and restraint of, 538. laws forbidding marriage of, 567. INSOLVENCY LAWS, as affecting obligation of contracts, 748. INSPECTION LAWS, of the states, 358. INSULAR POSSESSIONS, of United States, political status and government of, 20. INSURANCE, not included in "interstate commerce," 217. INTENT, to be sought for in constitutional interpretation, 76. INTERNATIONAL LAW, offenses against, defined and punished by federal laws, 269. INTERPRETATION, of constitutions, 75-81. see, also, Construction. INTERSTATE COMMERCE, see Commerce. INTEIiSTATE COMMERCE ACT, provisions of, 253. INTERSTATE COMMERCE COMMISSION, powers and functions of, 254. INTERSTATE LAW, as determined by the constitution, 291. principle of interstate comity, 291. privileges of citizens, 292. what privileges intended, 292. what privileges not included, 29i. 842 INDEX. [The figures refer to pages.] INTERSTATE LAW— Continued, who are citizens, 294. discriminating taxes, 295. public acts and judicial proceedings, 296. Interstate extradition, 300. INTOXICATING LIQUORS, traffic in, regulated under police power, 403. sale of, to Indians, forbidden, 394. INVOIiUNTARY SERVITUDE, prohibited, 540. what constitutes, 541. IRRIGATION, exercise of power of eminent domain for, 480. J JEOPARDY, meaning of, 699. prisoner not to be placed In, twice, 699. JOURNALS OF LEGISLATURE, as evidence of validity of laws, 69, 348. of congress, 199. JUDGES, not privately liable for judicial acts, 12. cannot be required to perform nonjudicial duties, 93. will not decide political questions, 100. advisory opinions by, 103. federal, appointed by President, 127. tenure of office, 141. of state courts, independence of, 336. duties of, as distinguished from those qf jury, 621. JUDGMENTS, of the courts, cannot be reversed by legislature, 88. In cases of Impeachment, 138. of a sister state, full faith and credit to, 296. erroneous, as due process of law, 594. vested rights in, 605. are not contracts, 735. JUDICIAL ACTION, no private liability for, 12. requirement of due process of law in, 587. defects in, cured retrospectively, 759. JUDICIAL POWER, nature of, 82. of the United States,. see Jurisdiction, of the states, 330-340. JUDICIARY, responsibility of, for judicial acts, 12. as interpreters of the constitution, 55. INDEX. 843 [The figures refer to pages.] JUDICIARY— Continued. I>ower of, to adjudge statutes unconstitutional, 96. separation of, from executive and legislative departments, 82. independence of, 84. nature of judicial power, 82. powers of, not to 'be usurped by legislature, 87. nor by executive, 91. state, powers and functions of, 330-340. determining validity of police regulations, 439. JUNK DEALERS, regulation of, under police power, 4H. JURISDICTION, of federal courts, 140-195. courts of the United States, 140. power of congress to establish courts, 140. federal courts enumerated, 141. territorial courts, 142. consular courts, 143. courts-martial, 143. military commissions, 145. scope of federal judicial power, 146. acts of congress regulating jurisdiction, 148. original and concurrent jurisdiction, 148. equity jurisdiction, 150. ancillary and equity jurisdiction, 151. cases involving federal questions, 152. cases arising under treaties, 155. cases affecting ambassadors, 156. , admiralty and maritime cases, 157. cases affecting aliens, 162. suits between citizens of dififerent states, 163. land grants of different states, 165. United States as a party, 166. states as defendants, 168. suits between states, 173. states as plaintiffs, 174. of United States supreme court, 175. original, 175. appellate, 176. independence of federal and state courts, 180. power of federal courts to issue habeas corpus, 192. of federal courts on removal of causes, 193. of state courts, 337. how far subject to legislative control, 338. essential to "due process of law," 590. want of, cannot be cured retrospectively, 759. JURY, as judges of the law in libel cases, 668. see, also, Jury Trial. JURY SERVICE, exclusion of negroes from, unlawful, 556. 844 INDEX. [The figures refer to pages.] JURY TRIAL, may be denied to municipal corporations, 507. in civil cases, 618. seventh amendment to federal constitution, 619. constitutional provisions as to, 619. provisions in state constitutions, 619. meaning of, 620. number and composition of jury, 620. province of court and jury, 621. in what proceedings claimable, 623L where not claimable, 624. equity cases, 626. admiralty cases. 627. summary proceedings, 627. peremptory nonsuits, 627. compulsory references, 628. restrictions on the right, 628. jury trial allov?ed on appeal, 629. waiver of the right, 629. in criminal cases, 682. waiver of, by defendant, 679. JUST COMPENSATION, for private property appropriated to public use, 493. JUSTICE, right to obtain, freely, 617. L LABOR, regulation of, under police power, 415. alien contract labor law, 228. right to, secured by constitutions, 555, 558. labor as property, 574. legal status and rights of labor unions, 410. LACHES, not imputable to a state, 25. does not bar collection of taxes, 443. LAUNDRIES, regulation of, under police power, 411. LAW OF THE LAND, see Due Process of Law. LAWS, see, also. Statutes, constitutions considered as, 3. power of courts to determine constitutionality of, 56. constitutionality of, presumed, 68. unconstitutional in part, 78. of another state, credit accorded to, 296. special and local, forbidden, 309. enactment of, 378. title and subject-matter of, 382. INDEX. 845 [The figures refer to pages.] liAWS— 'Continued, equal protectioli of, guarantied, 544. impairing contracts, see Obligation of Contracts. retroactive, 752. LEGAL TENDER, power of congress to make treasury notes a, 213. limitation of state power as to, 358. LEGISLATURE, members of, not liable for ofBcial acts, 11, 12. proceedings in, for adoption of constitutional amendment, 50 motives of, do not affect constitutionality of laws, CO. separation of powers of, from executive and judicial, 82. nature of legislative power, 82. must not usurp executive or judicial power. 86, 87, powers of, not to be usurped by executive, 01. nor by courts, 92. power of, to create courts, 384. to regulate jurisdiction, 338. to regulate practice, 339. organization and government of, 341. apportionment of members, 341. terms of office, 342. compensation of members, 342. sessions, 342. rules of procedure, 343. officers, 343. committees, 343. election and qualification of members, 344. expulsion of members, 345. punishment of contempts, 345. privilege of members from arrest, 348. journals, 348. bribery and lobbying, 349. extent of powers of, in the states, 351. powers of, limited by federal constitution, 353, treaties and compacts, 355. letters of marque, 356. bills of credit, 357. coining money, 358. legal tender, 358. duties on imports and exports, 358. duties of tonnage, 360. keeping troops, 361. implied limitations in state constitutions, 3G2. usurpation of powers, 362. territorial restriction, 362. legislature as trustee, 364. appropriations and expenditure of public money, 365. bounties and gifts, 366. irrepealable laws, 368. private; special, and local legislation forbidden, 309. 846 INDEX. [Tbe figures refer to pages.] LEGISLATURE— Continued, delegation of legislative power unlawful, 373. except to municipal corporations, 374. local option laws, 376. conditional legislation, 377. enactment of laws, 378. title and subject-matter of statutes, 382. cannot alienate police power, 389. police power possessed by, 394. authorizing exercise of power of eminent domain, 474. power of, to create municipalities, 507. control of municipal corporations by, 510. members of, privileged in respect to speeches and debates, 660, contracts made by, 730. limitations on power of, to contract, 736. LETTERS, private, inviolability of, 611. LETTERS OF MARQUE, power of congress to grant, 274. states may not grant, 356. LIABILITY, for ofBcIal action, 11. LIBEL, law of, as a limitation on freedom of speech, 653. on government, whether punishable, 654. privileged communications, 659. absolute privilege, 660. conditional privilege, 663. reports of judicial proceedings, 663. jury as judges of the law in actions for, 668. LIBERTY, defined and described, 525. natural, civil, and political, 525. limitations of, 526. of conscience, see Religious Liberty, personal, see Personal Liberty. LIBERTY OF SPEECH AND PRESS, constitutional provisions securing, 650. meaning of terms, 650. no peculiar privilege of newspapers, 651. meaning of the guaranty, 652. limitations on, 653. criticisms of government, 654, seditious libels. 654. press laws of Europe, 657. In America, 657. censorship of the press, 658. privileged communications, 659. absolute privilege, 660. legislators, 660. INDEX. 84T [The figures refer to pages.] LIBERTY OF SPEECH AND PRESS— Continued, public officers, 6G0. participants in judicial proceedings, 661. conditional privilege, 663. reports of judicial proceedings, 663. criticism of public officers, 664. criticism of candidates for office, 063. criticism of courts and judges, 666. criticism of literary compositions, 667. jury as judges of the law, 668. LICENSES, regulation of grant of, by administrative commissions, 99. are not contracts, 732. license fees as Interference with interstate commerce, 249. to marry, validity of laws requiring, 567. LIENS, statutes creating, as due process of law, 576. LIEUTENANT GOVERNOR, of state, office and duties of, 315. as presiding officer of senate, 343. LIMITATION OF ACTIONS, see Statute of Limitations. LIMITATIONS, on powers of congress, 287. on powers of state legislature, 353, 362. on the iwlice power, 434. on power of taxation, 451-454. on power of eminent domain, 474-481. on power of legislature to make contracts, 736. LIQUORS, police regulation of traffic in, 402. sale of, to Indians, forbidden, 394. LOBBYING, contracts for, illegal, 349. LOCAL ASSESSMENTS, requirement of equality and uniformity as to, 461. LOCAL LEGISLATION, when invalid, 369. LOCAL OPTION LAWS, constitutionality of, 376. LOCAL SELF-GOVERNMENT, the right of, 504. LOTTERIES, suppression of, under police power, 393, 398. M MAH-S, denying use of, for fraudulent purposes, 120 n. the postal system of the United States, 263. 548 INDEX. [The figures refer to pages.] MAILS— Continued, inviolability of private letters in the, 611. receipts from carriage of, not taxable by states, 448. MANDAMUS, to executive officers, vs^hen lies, 94. will not lie to President of United States, 111 to governor of state, 319. MANDATORY PROVISIONS, those of constitutions usually are, 78. MARITIME CASES, federal jurisdiction of, 157. vyhat subjects covered, 158. when exclusive, 161. MARQUE, LETTERS OF, power of congress to grant, 274. states may not grant, 356. MARRIAGE, laws against miscegenation, 557. natural right of, 567. may be regulated by state, 567. not a contract, 736. MARTIAL LAW, suspension of habeas corpus under, 715. MATERIALS, taking under power of eminent domain, 485. MEETINGS, of congress, time of, 197. MESSAGES, of President to congress, 132. of governor to state legislature, 320. MILITARY COMMISSIONS, establishment and powers of, 145. MILITARY POWERS, of President of United States, 114. MILITIA, President's powers as commander in chief of, 114. power of President to call out, 116. authority of congress over, 272. governor as commander of, 321. MILLS, exercise of power of eminent domain for benefit of, 481. MINING, exercise of power of eminent domain for purposes of, 481. MISCEGENATION, validity of laws against, 557. INDEX. g49 [Tho figures refer to pages.] MONEY, money powers of congress, 210. borrowing money, 211. power to coin money, 212. legal tender, 213. states may not coin, 358. public, control of legislature over, 365. damages In eminent domain proceedings must be paid in, 502, MONOPOLIES, federal laws against, 236. unlawful at common law, 426. validity of laws against, 427. right of government to grant, 560. grants of, by municipal ordinances, void, 519. MORALITY, public, police regulations in aid of, 307. MORTGAGES, are contracts not to be violated, 750. MUNICIPAL CORPORATIONS, delegation of legislative power to, 374. police power vested in, 391. power of eminent domain granted to, 472. local self-government, 504. nature of, 506. charters of, are not contracts, 50G. power to create, 507. boundaries of, 508. classification of, 509. legislative control of, 510. debts and revenue of, 512. officers of, 513. ' powers of, 514. by-laws of, 517. Implied powers of, 514. power to acquire and hold property, 515. business and commercial enterprises of, 516. taxation by, when essential to observance of contracts, 750. N NATION, defined, 15. the United States as a, 16. NATIONAL BANKS, taxation of, by states, 448. NATURAL GAS, as a subject of interstate commerce. 217. NATURAL JUSTICE, statutes contrary to, validity of, 72. constitutional provisions repugnant to, 79. Bi-.Oonst.L.(3d.Bd.)— 54 850 INDEX. IThe figures refer to pages.] NATURAL RIGHTS, meaning of the term, 523. NATURALIZATION, authority of congress over, 257. is exclusive, 2.57. how effected, 258, 637. NAVIGABLE WATERS, what are, in English and American law, 158. NAVIGATION, power of congress to regulate, 221. NAVY, President's power over, as commander in chief, 114. regulations for government of, 116. NEUTRALITY LAWS, established by congress, 269. NEW STATES, admission of, into the Union, 281. NEW TRIAL, legislature cannot grant, 88. NEW USES, appropriation of property to, 487. NEWSPAPERS, amenability of, to law of libel, 651. see, also. Liberty of Speech and Press. NOBILITY, TITLES OP, not to be granted by United States, 289. nor by states, 358. NON-RESIDENTS, taxation of property of, 453. entitled to equal protection of laws, 547. entitled to due process of law, 573. NORTHWEST TERRITORY, ordinance for government of, 281. NUrSANCES, abatement of, 578. OATH, official, to support the constitution, meaning of, 110. OATH OF OFFICE, of President and Vice-President, 110. OBLIGATION OF CONTRACTS, laws impairing, not to be passed, 720. constitutional provisions, 720. the law impairing, 721. state constitutions, 721. the obligation of the contract, 722. the Impairment of the contract, 723. INDEX. 851 [The figures refer to pages.] OBLIGATION OF CONTRACTS— Continued, what contracts are protected, 725. contracts between states, 726. statutes, 726. contracts of a state with individuals, 727. contracts of municipal corporations, 728. grants of franchises in public streets, 728. pecuniary obligations of state and municipalities, 729. grants by a state, 730. grants of exclusive privileges, 730. licenses and exemptions, 732. offices, 734. illegal and immoral contracts, 735. judgments, 735. marriage, 736. limitations on power of legislature to contract, 736. charters as contracts, 738. charters of municipal corporations, 506, 743. exemption from taxation as a contract, 744. laws affecting remedies on contracts, 746. insolvency laws, 748. limitation laws, 748. exemption laws, 749. appraisal laws, 749. redemption laws, 750. municipal taxation, 750. OCCUPATION, personal liberty as to choice of, 558. vested right to pursue, 600. OFFICERS, of government, responsibility of, for political action, 11-14. of executive department, mandamus to, 94. administrative, delegation of legislative power to, 96. appointment of, by President, 127. removal of, 129. impeachment of, 136. of congress, how chosen, 198. of state executive department, 314. of state legislature, choice of, 343. of municipal corporations, 513. due process of law in official and administrative action, 595. vested rights In public offices, 600. public, criticism of, when privileged, 664. Ineligibility as a consequence of crime, 675. offices are not contracts, 734. OFFICIAL LIABILITY, for official action, 11-14. of state governor, 319. OLEOMARGARINE, federal laws against, 394. state laws against, 401. 852 INDEX. [The flgurea refer to pages.] OPPRESSION, police regulations designed to prevent, 425. ORDINANCES, of municipal corporations, 517. enactment of, cannot be enjoined by courts, 93. P PANAMA CANAIi ZONE, political status and government of, 20. PAPERS, private, protected against search and seizure, COO, 611. PARDONS, defined, 121. power of President to grant, 121. IK)wer of governor to grant, 322. granting of. an executive function, 322. absolute and conditional, 323. delivery and acceptance essential to, 324. must be pleaded, 324. cannot be revoked, 324. eflPect of, 324. contract to procure, validity of, 325. PARTIES TO ACTIONS, ambassadors and public ministers, 156. aliens, 162. citizens of different states, 163. United States, 166. states, 168. PATENTS, authority of congress to grant, 266. dealing in, regulated by state police laws, 425. state taxation of, 448. PAWNBROKERS, regulation and licensing of, under police power, 411. PEACE, public, laws and ordinances for preservation of, 403. PENALTIES, vested rights In, 605. PENSIONS, constitutional validity of, 455. PEONAGE, agricultural labor law as establishing, 419, 542. Mexican, Chinese, and Indian, 542. I'EOPLE, distinguished from "nation," 15. who are included in the term, 30. sovereignty of, 30. ratification of federal constitution by, 43. INDEX. 853 [The figures refer to pages.] PERSONAL LIBERTY, what it consists in, 535. constltutiotial guaranties of, 536. limitations upon, 536. arrest, 536. imprisonment for crime, 537. restraint of insane persons, 538. vagabonds and paupers, 538. parental control of children, 539. sureties on bail bonds, 539. abolition of slavery, 540. requirement of due process of law, 370. arrests on general warrants, 611. PERSONAL PROPERTY, police regulation of, 422. taking under power of eminent domain, 483, 485. PETITION. right of, 668. secured by constitution, 668. meaning and extent of, 668-671. statements in, are privileged, 671. PHILIPPINES, political status and government of, -20. PHYSICIANS, regulation and licensing of, under police power, 99, 409. PILOTAGE, power of congress to regulate, 225. PIRACY, power of congress to define and punish, 268. PLUMBERS, regulation and licensing of, under police power, 99, 410. POLICE POWER, definition and nature of, 387. origin of, 388. distinguished from eminent domain, 388. is inalienable, 389. scope of, 389. location of, 391. in municipal corporations, 391. as vested in congress, 391. as vested in state legislatures, 394. objects to which it extends, 394. public safety, 394. public morals, 397. public health, 399. purity of food products, 401. Intoxicating liquors, 402. public peace, order, and comfort, 403. regulation of railways, 405. regulation of trades and professions, 408. 85i INDEX. [The figures refer to pages.] POLICE POWER— Continued, regulation of charges and prices, 412. regulation of labor, 415. unionism, strikes, and boycotts, 419. regulation of use and improvement of property, 422. laws against fraud and oppression, 425. monopolies, trusts, and strikes, 426. regulation of roads and streets, 433. game laws, 434. limitations of, 434. under federal constitution, 434. state police power and regulation of commerce, 250. unreasonable laws and unjust discriminations, 437. province of the courts, 439. taxation laid under the, 467. search warrants in aid of, 614. cannot be surrendered by legislative contract, 736. POLITICAL, QUESTIONS, will not be decided by the courts, 100. POLITICAL RIGHTS, what are, 524. citizenship, 631. double citizenship in the United States, 638. privileges of citizens of United States, 640. right of suffrage, 644. freedom of speech and of the press, 650. ■ right of assembly and petition, 668. ' disfranchisement, 672. POLL TAXES, unconstitutional in some states, 453. POLYGAMY, right of government to prohibit, 398, 533. POOLS, illegality of, 236. see, also, Monopolies. PORTO RICO, political status and government of, 20. POSTAL SYSTEM, authority and control of congress over, 263. POWERS OF CONGRESS, in relation to organization and government, 198. are delegated, 202. when exclusive, when concurrent, 203. enumerated and discussed, 205. implied, 284. limitations on, 287. PRACTICE, in the federal courts, 189. in the state courts, 339. I In criminal cases, 676 et seq. INDEX. 855 [The figures refer to pages.] PREAMBLE, of statute, when Invalidates It, 74. of constitution, as an aid in its construction, 79. PREROGATIVES, of state, 25. immunity of state from suit, 26. business and contractual relations of states, 27. PRESENTMENT, or Indictment, constitutional right to, 679. PRESIDENT OF THE UNITED STATES, office, powers, and duties of, 105-139. executive power vested in, 105. election of, 105. qualifications, 108. vacancy in office of, 108. compensation of, 109. oath of office of, 110. independence of. 111. veto power of, 112. military powers of, 114. cabinet, 117. pardoning power of, 121. treaty-making power of, 122. appointments to office by, 127. messages to congress, 132. power of, to convene and adjourn congress, 132. control of, over diplomatic relations, 133. power to execute the laws, 134. proclamations by, 135. impeachment of, 136. PRESS, freedom of, see Liberty of Speech and Press. PRESS LAWS, In Europe, 657. PRESUMPTION, in favor of constitutionality of statute, 68. PRICES, regulation of, tinder police power, 412. PRISONER, constitutional rights of, see Criminal Prosecutions. PRIVATE PROPERTY, appropriation of, to public use, see Eminent Domain. PRIVILEGED COMMUNICATIONS, what are, 659. statements in public petitions, 671. PRIVILEGES, of citizens of United States, 640. exclusive, grants of, 730. 856 INDEX. [The figures refer to pages.] PRIZE CASES, jurisdiction of federal courts in, 161. PROBATE PROCEEDINGS, not cognizable in federal courts, 147. PROCLAMATIONS, by the President of the United States, 135, PROFESSIONS, regulation of, under police laws, 408. Individual right of choice as to, 558. vested right to practice, 600. PROPERTY, appropriation of, to public use, see Eminent Domain, regulation of, must be by due process of law, 577. power of municipal corporations to acquire and hold, 515. contraband, seizure and destruction of, 578. PROSECUTIONS, see Criminal Prosecutions. PROTECTION, of the laws, to be equal to all men, 544. PUBLIC COMFORT, police regulations for securing, 403. PUBLIC CORPORATIONS, see Municipal Corporations. PUBLIC DOMAIN, not taxable by states, 446. PUBLIC HEALTH, police regulations in aid of, 399. PUBLIC LANDS, disposition of, by congress, 278. not taxable by states, 446. appropriation of, under power of eminent domain, 482. PUBLIC MINISTERS, to be appointed by President, 127. foreign, to be received by President, 133. may be dismissed by President, 133. cases affecting, federal jurisdiction of, 156. PUBLIC MORALS, police regulations for preservation of, 397. PUBLIC PEACE, laws and ordinances for preservation of, 403. PUBLIC PURPOSES, taxation must be for, 454-458. to justify exercise of eminent domain, 476. PUBLIC SAFETY, police regulations In aid of, 394. INDEX. 857 [The figures refer to pages.] PUBLIC SCHOOLS, reading the Bible in the, 529. privileges of, open to all, 555. right to acquire education in, 569. PUBLIC-SERVICE CORPORATIONS, regulation and control of, by administratire commissions, 97. legislative control of rates and charges of, 413. exercise of right of eminent domain by, 472, 478-480. PUBLIC TRIAL, constitutional right to, 697. PUBLIC USB, appropriation of private property to, see Eminent Domain. PUNISHMENTS, cruel or unusual, forbidden, 706. PURE FOOD AND DRUG LAW, enactment and terms of, 227. PURPOSES\0F TAXATION, must be public, 454. PURSUIT OjF HAPPINESS, right to, guarantied, 544. Q QUALIFICATIONS, of presidential electors, 106. of President, 108. of members of congress, 196, 197. of member* of state legislature, 344. religious test as qualification for office, 535. of jurymen, 620. of voters, determined by the states, 645. fixed by state constitution, cannot be abrogated, 649. QUARANTINE, power of congress to establish and regulate, 225, 394. as police regulation established by congress, 394. by the states, 399. QUARTERING SOLDIERS, constitutional provisions relating to, 616, RACE, as affecting right of naturalization, 259. suffrage not to be withheld on account of, 647. RAILROADS, engaged In interstate commerce, regulation of, by congress, 229. regulation of, under police power, 405. delegation of power of eminent domain to, 478. regulation of rates and charges, 413. 858 INDKX. [The figures refer to pages.] EBAL PROPERTY, of United States, not taxable by states, 446. appropriation of, for public use, see Eminent Domain. REBATING, by railroads, federal statute against, 230. RECONSTRUCTION ACTS, adoption of new constitutions under, 48. constitutionality of, 313. REDEMPTION LAWS, as affecting obligation of contracts, 750. REGULATION OF COMMERCE, see Commerce. RELIGIOUS LIBERTY, constitutional provisions securing, 527. Christianity as part of the law of tbe land, 628. encouragement of religion, 529. public recognition of religion, 529. Bible In the schools, 529. Sunday laws, 530. blasphemy a crime, 531. establishment of religion forbidden, 532. taxation In aid of religion, 532. exemption of church property from taxation, 532. legal status of religious societies, 533. religion no excuse for crime, 533. respect for conscientious scruples, 534. competency of witnesses as affected by religion, 534. religious test as qualification for oflice, 535. RELIGIOUS SOCIETIES, taxation In aid of, 532. legal status of, 533. REMEDIES, no vested rights in, 602. laws affecting,, do not violate obligation of contracts, 746. REMOVAL FROM OFFICE, power of, in the President, 129. "tenure of office" act, 130. on impeachment, 138. by state governor, 321. REMOVAL OF CAUSES, from state courts to federal courts, 193-195. statutes authorizing, 193. parties, 194. nature of suits removable, 194. states cannot abridge right of, 194. REPRESENTATION, and taxation, are correlative, 466. REPRESENTATIVE GOVERNMENT, established in the United States and the states, 32. INDEX. 859 [The figures reler to pages.] REPRIEVES, power of governor to grant, 322. distinguished from pardon, 322. REPUBLICAN GOVERNMENT, established in the United States, 31. guarantied to each state, 809. taxation and representation a maxim of, 466. REQUISITION, for surrender of fugitive criminal, 300. RESIGNATION, of President of United States, lOS. RESPONSIBILITY, political and personal, 11-14. RESTRAINT OF TRADE, combinations effecting, under federal law, 236. under state statutes, 426. strikes and boycotts as, 420. municipal ordinances effecting, are void, 519. RETROACTIVE LAWS, validity of, 752. retroactive effect avoided by construction, 754. curative statutes, 754. curing administrative action, 757. curing defective judicial proceedings, 759. RETROSPECTIVE, construction of constitutions should not be, 78. REVENUE, of municipal corporations, legislative control over, 512. REVENUE LAWS, of United States and state police laws, 435n. of states, see Taxation. due process" of law in enforcement of, 580. REVOLUTION, right of, 10. RIGHTS, not created by the constitutions, 7. bills of, defined, 9. right of revolution, 10. of the states, 23. nature and classification of, 522. natural, 523. civil, see Civil Rights. political, see Political Rights. vested, protection of, 596. equal protection of tjie laws, 544. right of assembly and petition, 068. of persons accused of crime, 676. 860 INDEX. [The figures refer to pages.] ROADS, regulation of, under police power, 433. RULES OF PROCEDURE, each house of congress may establish, 201. power of state legislature to adopt, 343. s SA£''ETY, public, police regulations in aid of, 394. SANITARY LAWS, validity of, as police regulations, 399. search warrants In aid of, 615. SCHOOLS, see Public Schools. SEARCH WARRANTS, see Searches and Seizures. SEARCHES AND SEIZURES, unreasonable, prohibited by the constitutions, 606L security of the dwelling, 607. when an entry may be forced, 608. right to search the person, 609. compulsory production of papers, 609. inviolability of the malls, 611. general warrants, 611. search warrants, 612. requisites of, 612. for what purposes used, 612. in aid of police regulations, 614. in aid of sanitary regulations, 615. time of execution of, 615. military orders, 616. SECESSION, no right of, in the United States, 32. SECRETARIES, of federal executive departments, see Cabinet. SECRETARY OF STATE, of United States, 117. «f state, functions and duties, 315. SEDITIOUS LIBELS, English law of, 654. SEIZURES, of person, or property, see Searches and Seizures. SELF-CRIMINATION, privilege against, 686. SELF-GOVERNMENT, local, the right of, 504. INDEX. 861 [The figures refer to pages.] SENATE OF THE UNITED STATES, election of Vice President by, lOT. participation in making of treaties, 122, 124. confirmation of appointments by, 127. trial of impeachments by, 136. composition of, 196. election of members, 196, 197. powers of, 198. determining contested elections, 199. privilege of members against arrest, 200. power to punish for contempts, 201. SERVITUDE, involuntary, prohibited, 540. SESSIONS, of congress, extra, power of President to call, 132. regular, 197. of state legislature, special, called by governor, 325. place and time of, 342. SHERMAN ANTI-TRUST ACT, provisions and applications of, 286. SHIPS, power of congress to regulate, 223. of war, states may not keep, 361. SLANDER, see Libel. SLAVERY, slave trade made piracy by act of congress, 2G9. abolition of, 540. SMOKE LAWS, validity of, 404. SNOW, ordinances requiring removal of, from sidewalks by citizens, 423. SOLDIERS, quartering of, in private houses, 616. SOVEREIGNTY, defined, 16. external and internal, 17. of the United States, 18. of the states, 22. of the people, 30. of the state, over seacoast, 364. SPECIAL LEGISLATION, when invalid, 369. SPEECH, freedom of, see Liberty of Speech and Press. SPEEDY TRIAL, constitutional right to, 697. 862 INDEX. [The figures refer to pages.] STARE DECISIS, doctrine of, as applied to construction of constitutions, 81. STATE RIGHTS, doctrine of, 23. no right of secesagpn, 32. STATE TREASURER, powers and duties of, 316. STATES, meaning of, in American constitutional law, 18. restricted meaning of, 21. sovereignty of, 22. rights of, 23. prerogatives of, 25. business and contractual relations of, 27. boundaries of, how fixed, 28. of the Union, are republics, 31. have no right to secede, 32. federal constitution not a compact between, 33. establishment of constitutions of, 48. reconstruction, 48. amendment of constitutions of, 49-54. as parties to actions, 168. as defendants, 168. suits between states, 173. as plaintiffs, 174. powers of, when concurrent with those of congress, 203. interference with commerce by, 245. admission of new, 281. interstate law under the constitution, 291. guaranty of republican'government to, 309. executive power in, 314. judicial power in, 330. legislative power in, 341. police power of, 387. powers of taxation possessed by, 441. appropriation of property of, under power of eminent domain, 482. may not abridge privileges of citizens of United States, 640. STATUTE OF LIMITATIONS, does not bar collection of taxes, 443. vested rights accrued under, 608. repeal of, as affecting contracts, 748. STATUTES, and constitutions distinguished, 3. constitutional and unconstitutional, 4, 5. power of courts to determine constitutionality of, 56. presumed to be constitutional, 68. unconstitutional in part, 73. of another state, credit accorded to, 296. local and special forbidden, 369. enactment of, 378. cannot be enjoined by courts, 93. INDEX. 863 [The figures refer to pages.] STATUTE S— Continued, title and subject-matter of, 382. authorizing exercise of power of eminent domain, 474. impairing obligation of contracts, see Obligation of Contracts. when involve contracts, 726. retroactive, 752. % STOCK GAMBLING, suppression of, under police power, §98. STREAMS, appropriation of, under power of eminent domain, 484. STREETS, regulation of, under police power, 433. police control of parades and processions on, 396, 403. right of citizens to use, 403. prohibiting loud noises on, 404. automobiles and bicycles on, 483. appropriation of private property for, 479. STRIKES, when illegal, 419. SUBPCBNA, to President, 112. to governor of state, 319. SUCCESSION TAXES, see Inheritance Taxes. SUFFRAGE, RIGHT OF, constitutional provisions as to, 644. suffrage defined, 644. not a natural right, 644. federal constitution does not confer, 645. qualifications determined by the states, 645. fifteenth amendment, 647. qualifications fixed by state constitution, 648. regulation of elections, 649. disfranchisement, 672. SUMMARY PROCEEDINGS, constitutionality of, 580. in revenue and tax cases, 580. in judicial action, 592. no jury trial in, 627. SUMPTUARY LAWS, nature of, 568. generally invalid, 568. SUNDAY LAWS, constitutionality of, 397, 530. SUPREME COURT OF THE UNITED STATES, created by the constitution, 140. independent of congressional control, 140, 141. 864 INDEX. [The figures refer to pages.] SUPREME COURT OF THE UNITED STATES— Continued, Jurisdiction of, 175. original, 175. appellate, 176. reviewing judgments of state appellate courts, 177. T TAXATION, exercise of power of, by courts, 93. power of congress to lay taxes, 206. ' limitations on the power, 206. purposes of federal taxation, 206. direct and indirect taxes, 209. requirement of uniformity, 209. by state, must not interfere with commerce, 246. nor discriminate against citizens of other states, 295. states may not tax imports or exports, 358. nor lay duties of tonnage, 360. power of, in general, 441. taxes defined, 441. origin and nature of power, 441. must not be arbitrary, 442. distinguished from eminent domain, 443. extent of legislative discretion, 444. limitations Imposed by necessary independence of federal and state gov- ernments, 444. state cannot tax agencies ot institutions of United States, 445. nor property of United States, 446. nor federal bonds or notes, 447. United States cannot tax state agencies or property, 450. limitations Imposed by federal constitution, 451. by state constitutions, 452. purposes of taxation, 454. must be public, 454. what are public purposes, 454^^58. equality and uniformity in taxation, 459. double taxation, 464. taxation and representation, 466. taxation under the police power, 467. in aid of religion, validity of, 532. must not violate requirement of equal protection of laws, 553. due process of law in, 580. exemption from, when a contract, 744. TELEGRAPHS, interstate, authority of congress over, 234. exercise of power of eminent domain for, 479. TELEPHONE, transmission of messages by, as interstate commerce, 235. TERRITORIES, position of, in the Union, 19. courts of, 142. INDEX. 865 [The figures refer to pages.] TERRITORIES— Continued, government of, by congress, 278. Northwest Territory, ordinance for government of, 2S1. TICKET SCALPING, validity of laws forbidding, 409. TITLE OF STATUTE, must be coextensive with subject-matter, 382. TITLES OF NOBILITY, not to be granted by United States, 289. nor by states, 353. TOLLS AND CHARGES, regulation of, under police power, 412. TONNAGE DUTIES, states may not impose, 3G0. TOWNS, see Municipal Corporations. TRADE, combinations in restraint of, under federal law, 236. under state statutes, 426. boycotts and strikes, 420. TRADE-MARKS, authority of congress to legislate concerning, 236, 267. TRADES, regulation of, under police power, 408. liberty of choice as to, 558. TRADES UNIONS, rights, status, and responsibilities of, 419, 430. TRADING STAMPS, validity of laws against use of, 412. TRANSPORTATION, of persons and property, see Commerce. TREASON, definition and punishment of, 716. constructive, 717. what constitutes, 717. against a state, 718. TREASURER OF STATE, powers and duties of, 316. TREASURY NOTES, power of congress to make a legal tender, 213. not taxable by states, 447. TREATIES, power of President and senate to make, 122. are the supreme law of the land, 125. take effect when, 124. cases arising under, federal jurisdiction of, 155. states may not make, 355. state taxation contrary to, is unlawful, 452. Bl.Const.L.(3d.Ed.)--55 866 INDEX. [The figures refer to pages.] TRIAL BY JURY, see Jury Trial. TRIALS, criminal, constitutional guaranties in, see Criminal Prosecutions, to be by jury, 682. right of defendant to be present at, 693. to be speedy and public, 697. TROOPS, stipendiary, states may not maintain, 361. TRUSTS AND MONOPOLIES, federal laws against, 236. unlawful at common law, 426. validity of laws against, 427. TWELFTH AMENDMENT, adoption of, 47. TWICE IN JEOPARDY, prisoner not to be placed, 699. u UNCOJSrSTITUTIONALITY, meaning of, 4, 5. power of courts to determine, 56. not presumed, 68. partial, may not vitiate entire statute, 73. UNIFORMITY, as a requisite of taxation, 459. UNION LABOR, rights and responsibilities of, 419, 430. UNITED STATES, ■ national character of, 15. sovereignty of, 18. is a federal republic, 31. is indissoluble, 32. constitution of, 33-37. not a compact or league, 33. an organic, fundamental law, 34. a grant of powers, 35. the supreme law of the land, 36. origin of, 40. under the Continental Congress, 40. under the Articles of Confederation, 40. formation and ratification of constitution of, 43. amendment of constitution of, 45. President of, powers and duties, 105-139. courts of, see Courts, cannot be sued except by consent, 166. has no common law, 183. guaranties to each state a republican government, 309. police power vested in, 391. INDEX. 867 [The figures refer to pages.] UNITED STATES— Continued, property of, not taxable by states, 446. may exercise right of eminent domain, 471. property of, taken under power of eminent domain, 482. citizenship in the, 631. citizens of, their privileges and immunities, 640. UNITED STATES BONDS, not taxable by states, 447. UNITED STATES COURTS, see Courts. UNUSUAL PUNISHMENTS, not to be inflicted, 706. ■what are, 707. UNWRITTEN CONSTITUTIONS, nature and characteristics of, 5, 6. USURY LAWS, validity of, as police regulations, 425. V VACCINATION, compulsory, validity of laws providing for, 399. VESSELS, engaged in commerce, regulation of, by congress, 223. of war, states may not keep, 361, VESTED RICHTS, protection of, by constitutions, 596. what are, 597. nature of estates, 507. rules of descent, 598. dower and curtesy, 599. betterment laws, 599. public offices, 600. right to pursue particular occupations, 600. franchises and privileges, 601. causes of action, 602. remedies, 602. statutes of limitation, 603. rules of evidence, 604. judgments, 605. penalties and forfeitures, 605. VETO POWER, as applied to amendment to state constitution, 51. of President of United States, 112. of state governor, 326. VICE PRESIDENT, of United States, election of, 105. succeeding to presidency, 108. oath of office, 110. impeachment of, 136. 868 INDEX. [The figures refer to pages.] VILLAGES, see Municipal Corporations. VOTING, see Suffrage, Eight of. w WAGES, of labor, police regulations as to rate and payment, 418. combinations to raise, when lawful, 419, 430. WAIVER, of jury trial in civil cases, 629? In criminal cases, 682. of rights in criminal cases, 67S. WAR, President has no power to declare, 115. congress may declare, 269. WAR POWERS, of President, 114. of congress, 269-274. WARRANTS, arrests without, 536. general, 611. to search houses, see Searches and Seizures. WATER COMPANIES, exercise of power of eminent domain by, 480. WATER RATES, are not "taxes," 442. WATERCOURSES, appropriation of, under power of eminent domain, 484. WEIGHTS AND MEASURES, standard of, may be fixed by congress, 261. bureau of standards, 261. inspection and testing of, as police regulation, 425. WITNESSES, competency of, as affected by religious views, 534. disqualification of Indians and Chinese, 554. disqualification for infamy, 674. statements of, under examination, are privileged, 661. prisoner's right to be confronted with, 690. to compel attendance of, 692. WORDS, used in constitution, to be taken in popular sense, 79. taken from other constitutions, how construed, 80. WRITTEN CONSTITUTIONS, distinguished from unwritten, 5, 6. contents of, 6. construction and interpretation of, 75-81. WEST FUBLISHIHCt CO., PBINTBBB, ST. PAUL, UIHN. (n?e ^ornbook Scries ( Comprises elementary treatises on all the principal sub- jects of the law. The books are made on the same gen- eral plan, in which certain special and original feature s are made prominent. CI?e "hornbook plan." Is to set forth the leading principles in black-letter (like this) And to give the necessary amplification, explanatiory'ap- plication, etc., under the principles, in type like this. The authorities are grouped in footnotes at the bottom of the page.* « This shows why these books are found so serviceable as practitioners' handbooks. . A lawyer may want to be re- minded of the law; in that case he wants it presented in such a way that he can pick out what he needs with the least trouble. *Tbe Hornbook Series now includes treatises on AgencI, Admi- ralty Bailments, Bills and Notes, Common-Law Pleading, ©onstitu- tioua'l Law, Contracts, Corporations, Criminal Law, Criminal Pro- cedure Damages, Elementary Law, Equity Jurisprudence, Equity Pleading, Evidence. Executors and Administrators, Federal Juris- diction and Procedure, Insurance, International Law, Interpreta- tion of Laws, Mining Law, Negligence, Partnersbip, Persons and Domestic Relations. Public Corporations, Real Prop|tty, bales. Torts (2 vols.) and Wills. Uniform price, $3.75 a volume, delivered^ Bound in American Law Buckram. ^ West Publishing Co. St. Paul, MmnJ ^„„ '.„. oj- r 225 Dearborn St. 100 Wilham St. I Chicago. New York. ^ C6559a ^arrotps on Hegltgence* 1899. 634 pages. $3.75 delivered. By MORTON BARROWS, A. B., LL. B. TABLE OF CONTENTS. Chap. 1. definition and Essential Elements. 2. Contributory Negligence. % 3. Liability of Master to Servant. 4. Liability of Master to Tbird Persons. 5. Common Carriers of Passengers. 6. Carriers of Goods. I 7. Occupation and Use of Land and Water. 8. Dan^rous Instrumentalities. 9. Negligence of Attorneys, Pliysiclans, and Public Officers. 10. Death by Wrongful Act. 11. Negligeiice of Municipal Corporations. C6559-1 "^^ Black on (Eonstructtonlinb interpretation of Catps. 1896. 509 pages. $3.75 delivered. By H. CAMPBELL BLACK, Author of Black's Law Dictionary, and Treatises on Constitution- al Law, Judgments, etc. TABLE OF CONTENTS. Chap. 1. Nature and Office of Interpretation. 2. Construction of Constitutions. 3. General Principles of Statutory Construction. 4. Statutory Construction ; Presumptions. 5. Statutory Construction; Words and Phrases. 6. Intrinsic Aids in Statutory Construction. 7. Extrinsic Aids in Statutory Construction. 8. Interpretation with Reference to Common Law. 9. Retrospective Interpretation. 10. Construction of Provisos, Exceptions, and Saiing Clauses. 11. Strict and Liberal Construction. 12. Mandatory and Directory Provisions. 13. Amendatory and Amended Acts. 14. Construction of Codes and Revised Statutes. 15. Declaratory Statutes. ^ 16. The Rule of Stare Decisis as Applied to Statutory Construc- tion. J^' 17. Interpretation of Judicial Decision^ and the Doctrine of Prec- edents. C«359-2 r Slack's Constitutional £atp. 1' 1897. 716 pages. $3.75 delivered. 4 By H. CAMPBELL BLACK, Author of Black's Law Dictionary, Treatises on Judgments, Tax Titles, etc. Second Edition. TABLE OF CONTENTS. Chap. 1. Defmitions and General Principles. 1. The United States and the States. 3. Establishment and Amendment of Constitutions. 4. Construction and Interpretation of Constitutions. 5. The Three Departments of Government. 6. The Federal Executive. 7. Federal Jurisdiction. 8. The Po^rs of Congress. 9. Interstate Daw. 10. Republican Government Guarantied. 11. Executive 'Power in the States. 12. Judicial Pfwers in the States. 13. Legislative Power in the States. 14. The PolicelPower. 15. The Powerf of Taxation. 16. The Eight of Eminent Domain. 17. Municipal cfrporations. 18. Civil Rights, and Their Protection by the Constitution. 19. Political and Public Rights. 20. Constitutional Guaranties in Criminal Cases. 21. Lavs's Impairing the Obligation of Contracts. 22. Retroactive Laws. C(;,'5.j!)-a C^ilbs on Suretysl^ip axxb Guaranty. 1907. 572 pages. $3.75 delivered. By FRANK HALL CHILDS, of the Chicago Bar. TABLE OF CONTENTS. Chap. 1. Definitions, Parties, Distinctions, and Classifications, 2. Formation of the Contract. 3. The Statute of Frauds. 4. Construction of the Contract. I 5. Eights and Liahilities as Between the Creditor and the Sure- ty. 6. Rights and Liabilities of the Surety and of the Principal as to each other. >_ 7. Rights and Liabilities of Co-Sureties as to each other. 8. Parties to Negotiable Instruments Occupying the Relation of Sureties. 9. Official Bonds. •10. Judicial Bonds. 11. Bail Bonds and Recognizances. CG5.59-4 (£Iark on (£ontracts» 1904. 693 pages. $3.75 delivered. By WM. L. CLARK, Jr. Second Edition: By FRANCIS B. TIFFANY. TABLE OF CONTENTS. Chap. -^ I 1. Contract In General. 2. Offer and Acceptance. 3. Classification of Contracts. 4. Requirement of Writing. 5. Consideration. 6. Capacity of Parties. 7. Reality of Consent. 8. Legality |)f Object. 9. Operatic^ of Contract. 10. Interpretljtlon of Contract. 11. Discharge of Contract. 12. Agency. 13. Quasi Contrac C65:)0-5 Clark on (Eorporattons. 1907. 721 pages. $3.75 delivered. By WM. L. CLARK, Jr., Author of "Criminal Law," "Criminal Procedure," and "Contracts." Second Edition: By FRANCIS B. TIFFANY. TABLE OF CONTENTS. Chap. 1. Of tile Nature of a Corporation. 2. Creation and Citizensliip of Corporations. 3. Effect of Irregular Incorporation. 4. Relation between Corporation and its Promoter?. 5. Powers and Liabilities of Corporations. C. Powers and Liabilities of Corporations. 7. Powers and Liabilities of Corporations. 8. The Corporation and the State. 9. Dissolution of Corporations. 10. Membership in Corporations. 11. Membership in Corporations. 12. Membership in Corporations. 13. Management of Corporations — Ofl5cers and Agents. 14. Rights and Remedies of Creditors. 15. Foreign Corporations. Appendix. C0.")50-0 dark's Criminal taw. 1902. 517 pages. ¥3.7.'") delivered. By WM. L. CLARK, Jr., Author of a "Handbook of the Law of Contracts." Second Edition: By FRANCIS B. TIFFANY. TABLE OF CONTENTS. Chap. 1. Definition of "Crime. 2. Criminal Law. 3. Classification of Crimes. 4. The Mental Element in Crime. 5. PersQJis Capable of Committing Crime. 6. Parties Concerned. 7. The Overt Act. 8. OfCens^ against the Person. 0. Offenses ^against the Person. 10. Oflfenses against the Habitation. 11. Offenses ^gainst Property. 12. Offenses against the Public Health, Jlorals, etc. 13. Offenses against Public Justice and Authority. 14. Offenses against the Public Peace. 15. Offenses against the Government. 16. Offenses against the Law of Nations. 17. Jurisdiction. r 18. Former Jeopardy [Tl^^^ 06550-7 (£Iatk 5 Criminal Procebure. 1895. 665 pages. $3.75 delivered. By WM. L. CLARK, Jr., Author of a "Handbook of Criminal Law," and a "Handbook of Contracts." TABLE OF CONTENTS. Chap. 1. Jurisdiction. 2. Apprehension of Persons and Property. 3. Preliminary Examination, Bail, and Commitment 4. Mode of Accusation. 5. Pleading — The Accusation. 6. Pleading — The Accusation. 7. Pleading — The Accusation. 8. Pleading — The Accusation. 9. Pleading — The Accusation. ? 10. Pleading and Proof. / 11. Motion to Quash. 12. Trial and Verdict. 13. Proceedings after Verdict. 14. Evidence. 15. Habeas Corpus. C(jr).50-8 (ErostPcU on (Executors anb dbmtnislrators. 1897. 696 pages. $3.75 delivered. By SIMON GREENLEAF CROSWELL, Author of "Electricity," "Patent Cases," etc. TABLE OF CONTENTS. Chap. Part 1.— DEFINITIONS AND DIVISION OP SUBJECT. 1. Definitions and Division of subject. Part 2.— APPOINTMENT AND QUALIFICATIONS. 2. Appointment in Court. ■3. Place and Time of Appointment and Requisites Therefor. 4. Who may Claim Appointment as Executor. 5. Who may Claim the Right to Administer. G. Disqualifications for the Office of Executor or Administrator. 7. Acceptance or Renunciation. 8. Proeeedings for Appointment of Executors and Administra- tors. 9. Special Kinds of Administrations. 10. Foreign and Interstate Administration. 11. Joint Executors and Administrators. 12. Administration Bonds. '. Part 3.— POWERS AND DUTIES. 13. Inventory — Appraisement — Notice of Appointment. 14. Assets of the Estate. 15. Managei|ieut of the Estate. 16. Sales and Conveyances of Personal or Real Assets. 17. Payment' of Debts and Allowances — Insolvent Estates. 18. Payment' of Legacies. 19. Distribution of Intestate Estates. 20. Administration Accounts. Part 4.— TERMINATION OF OFFICE. 21. Revocation of Letters— Removal — Resignation. Part 5.— REMEDIES. 22. Actions by Executors and Administrators. 23. Actions against Executors and Administrators. 24. Statute of Limitations— Set-off. 2o. Evidence and Costs, f --^ CO.j.jO-O (£aton on (Squity. 1901. 734 pages. $3.75 delivered. By JAMES W. EATON, Editor 3d Edition Collier on Bankruptcy, Co-Editor American Bankruptcy Reports, Eaton and Greene's Negotiable Instruments Law, etc. TABLE OF CONTENTS. Origin and History. General Principles Governing tbe Exercise of Equity Jurisdiction. Maxims. Penalties and Forfeitures. Priorities and Notice. Bona Fide Purchasers Without Notice. Equitable Estoppel. Election. Satisfaction and Performance. Conversion and Reconversion. Accident. Mistake. Fraud. Equitable Property. Implied Trusts. Povs^ers, Duties, and Liabilities of Trustees. ( Mortgages. Equitable Liens. ,> Assignments. f Remedies Seeking Pecuniary Relief. J Specific Performance. ff Injunction. Partition, Dower, and Establishment of Boundaries. Reformation, Cancellation, and Cloud on Title. Ancillary Remedies. i CGd.JO-10 fetter on (fqutty. 1895. 463 pages. $3.75 delivered. By NORMAN FETTER. TABLE OF CONTENTS. Chap 1. Nature and Definition of Equity. 2 Principles Defining and Limiting Jurisdiction. 3. Tlie Maxims of Equity. 4. Tlie Doctrines of Equity. 5. The Doctrines of Equity. 6. The Doctrines of Equity. 7. Grounds for Equitable Relief. 8. Property in Equity — Trusts. 9. Property in Equity — Mortgages, Liens, and Assignments. 10. Equitable Remedies. 11. Equitable Remedies. 12. Equitable Remedies. 13. Equitablememedies. 14. '1 Refornaatiom, Cancellation, and 'Quieting title. l.j. Ancillary Reiftedies. C0559-11 ©arbncr on IDills. 1903. 726 pages. $3.75 delivered. By GEORGE E. GARDNER, Professor in tlie Boston University Law Scliool. TABLE OF CONTENTS. Chap. 1. History of Wills — Introduction. 2. Form of Wills. 3. Nuncupative, Holographic, Conditional Wills. 4. Agreements to Make Wills, and Wills Resulting from Agree- ment. 5. Wlio may be a Testator. 6. Restraint upon Power of Testamentary Disposition — Who may be Beneficiaries — What may be Disposed of by Will. 7. Mistalce, Fraud, and Undue Influence. 8. Execution of Wills. 9. Revocation and Republication of Wills. 10. Conflict of Laws. IL Probate of Wills. 12. Actions for tlie Construction of Wills. 13. Construction of Wills — Controlling Primiples. 14. Construction — Description of Subject-Matter. 15. Construction— Description of Beneficiary. IG. Construction — Nature and Duration of Interests. 17. Construction — Vested and Contingent Interests — ^Remainders — Executory Devises. 18. Construction— Conditions. 19. Construction — Testamentary Trusts and Powers. 20. Legacies — General — Specific — Demonstrative — Cumulative — Lapsed and Void — Abatement — Ademption — Advance- ments. J 21. Legacies Charged upon Land or Other Pro^jferty. 22. Payment of the Testator's Debts. ^^ 23. Election. '^' 24. Rights of Beneficiaries Not Previously Discussed. C(;,".->!)-12 ®eorge on Partncrstjtp, 1897. 616 pages. $3.75 delivered. By WILLIAM GEORGE. TABLE OF CONTENTS. Chap. 1. Definition and Establishment of Relation. 2. Kinds of Partnerships and Partners. 3. Characteristic Features of Partnerships. 4. Implied Rights and Liabilities Inter Se. 5. Articles of Partnership. 6. Eights and Liabilities as to Third Persons. 7. Actions Between Partners. 8. Actions Between Partners and Third Persons. 9. Dissolution. 10. Limited Partnerships. 11. Joint-Stock Companies. C0559-13 ®Ienns 3ntcrnattonal tavo. 189o. 478 pages. $3.75 delivered. By CAPT. EDWIN F. GLENN, Acting Judge Advocate, United States Army. TABLE OF CONTENTS. INTRODUCTION. Chap. 1. Persons in International Law. 2. The Commencement of States — Fundamental Rights and Du- ties. 3. Territorial Property of a State. 4. Territorial Jurisdiction. 5. Jurisdiction on the High Seas and Unoccupied Places. 6. The Agents of a State in International Relations. 7. Intervention. 8. Nationality. 9. Treaties. 10. Amicable Settlement of Disputes. 11. International Relations in War. 12. Effects of War — As to Persons. 13. Effects of War — As to Property. 14. Postliminium. 15. Military Occupation. 16. Means of Carrying on Hostilities. 17. Enemy Character. 18. Non-Hostile Relations. 19. Termination of War. 20. Of Neutrality in General. 21. The Law of Neutrality between Belligerent and Neutral States. 22. Contraband. ( 23. Blockade. 24. Visit and Search, and Right of Angary. Appendix. C6559-14 y ^alc on Bailments anb Carriers. 1896. 675 pages. $3.75 delivered. By WM. B. HALE. TABLE OF CONTENTS. Chap. 1. In General. 2. Bailments for Sole Benefit of Bailor. 3. Bailments for Bailee's Sole Benefit. 4. Bailments for Mutual Benefit — Pledges. 5. Bailments for Mutual Benefit — Hiring. 6. Innkeepers. 7. Carriers of Goods. 8. Carriers of Passengers. 9. Actions against Carriers. C0o59-15 S}aU on X)amages. 1896. 476 pages. $3.75 delivered. By WM. B. HALE, Author of "Bailments and Carriers." TABLE OF CONTENTS. Chap. 1. Definitions and General Principles. 2. Nominal Damages. 3. Compensatory Damages. 4. Bonds, Liquidated Damages and Alternative Contracts. 5. Interest. 6. Value. 7. Exemplary Damages. 8. Pleading and Practice. 9. Breach of Contracts for Sale of Goods. 10. Damages in Actions against Carrier. 11. Damages in Actions against Telegraph Companies. 12. Damages for Death by Wrongful Act. 13. Wrongs Affecting Real Property. 14. Breach of Marriage Promise. 06559-16 V}ak on Corts* 1896. 636 pages. $3.75 delivered. By WM. B. HALE. Author of "Bailments and Carriers," etc. TABLE OF CONTENTS. Chap. 1. General Nature of Torts. 2. Variations in Normal Right to Sue. 3. Liability for Torts Committed by or with Others. 4. Discharge and Limitation of Liability for Torts. 5. Remedies for Torts — Damages. 6. Wrongs Affecting Freedom and Safety of Person. 7. Injuries in Family Relations. 8. Wrongs Affecting Reputation. 9. Malicious Wrongs. 10. Wrongs to Possession and Property. 11. Nuisance. 12. Negligence. 13. Master and Servant. C6559-17 ^opkins on Heal Property. 1896. 589 pages. $3.75 delivered. By EARL P. HOPKINS, A. B. LL. M. TABLE OF CONTENTS. Chap. 1. What is Real Property. 2. Tenure and Seisin. 3. Estates as to Quantity — Fee Simple 4. Estates as to Quantity — Estates Tail. 5. Estates as to Quantity — Conventional Life Estates. 6. Estates as to Quantity — Legal Life Estates. 7. Estates as to Quantity — Less than Freehold. 8. Estates as to Quality on Condition — on Limitation. 9. Estates as to Quality — Mortgages. 10. Equitable Estates. ] 1. Estates as to Time of Enjoyment — Future Estates. 32. Estates as to Number of Ovrners — Joint Estates. 13. Incorporeal Hereditaments. 14. Legal Capacity to Hold and Convey Realty. 15. Restraints on Alienation. 16. Title. CC559-18 ^ugf?cs on Ctbmtralty. 1901. 504 pages. $3.75 delivered. By ROBERT M. HUGHES, M. A. TABLE OF CONTENTS. The Origin and History of the Admiralty, and its Extent in the United States. Admiralty Jurisdiction as Governed by the Subject-Matter. General Average and Marine Insurance. Bottomry and Respondentia ; and Liens for Supplies, Repairs, and Other Necessaries. Stevedores' Contracts, Canal Tolls, and Towage Contracts. Salvage. Contracts of Affreightment and Charter Parties. Water Carriage as Affected by the Barter Act of Fehruary 13, 1893. Admiralty Jurisdiction in Matters of Tort. The Right of Action in Admiralty for Injuries Resulting Fatally. Torts to the Property, and Herein of Collision. The Steering and Sailing Rules. Rules as to Narrow Channels, Special Circumstances, and General Precautions. Damages in Collision Cases. \'essel Ownership Independent of the Limited Liability Act. Rights and Liabilities of Owners as Affected by the Limited Lia- bility Act. The Relative Priorities of Maritime Claims. A Summary of Pleading and Practice. APPENDIX. 1. The Mariner's Compass. 2. Statutes Regulating Navigation, Including: (1) The International Rules. (2) The Rules for Coast and Connecting Inland Waters. (3) The Dividing Lines between the High Seas and Coast Wa- ters. (4) The Lake Rules. (5) The Mississippi Valley Rules. (6) The Act of March 3, 1899, as to Obstructing Channels. 3. The Limited Liability Acts, Including: (1) The Act of March 3, 1851, as Amended. (2) The Act of June 26, 1884. 4. Section 941, Rev. St., as Amended, Regulating Bonding of Ves- sels. 5. Statutes Regulating Evidence in the Federal Courts. C. Suits in Forma Pauperis. 7. The Admiralty Rules of Practice. C655U-iy ^ugt^es on ^^bcral 3urt5btctton anb Proceburc. 1904. 634 pages. $3.75 delivered. By ROBERT M. HUGHES, of the Norfolk Bar, Author of "Hughes on Admiralty," and Lecturer at the George Washington University Law School. TABLE OF CONTENTS. Chap. 1. Introduction — What it Comprehends. ^ 2. The District Court — Its Criminal Jurisdiction and Practice. 3. Same — Continued. 4. The District Court — Criminal Jurisdiction — Miscellaneous Jurisdiction. 5. The District Court — Bankruptcy. 6-8. Same — Continued. 9. The District Court — Miscellaneous Jurisdiction. 10. The Circuit Court— Original Jurisdiction. 11-12. Same— Continued. 13. The Circuit Court — Jurisdiction by Removal. 14r-15. Same— Continued. 16. The Circuit Court— Jurisdiction by Removal — Original Juris- diction of the Supreme Court — Other Minor Courts of Orig- inal Jurisdiction. 17. Procedure in the Ordinary Federal Courts of Original Juris- diction — Courts of LiSiVf. 18. Procedure in the Ordinary Federal Courts of Original Juris- diction— 'Courts of Equity. 19. Same — Continued. 20. Appellate Jurisdiction-JThe Circuit Court of Appeals. 21. Appellate Jurisdiction— The Supreme Court. 22. Procedure on Error and Appeal. The U S Supreme Court Rules and the Rules of Practice for the Courts of Equity of the United States are given in an appendix. C6559-20 3ngersoU on Public (Eorporattons. 1904. 738 pages. $3.75 delivered. By HENRY H. INGERSOLL, LL. D., Dean of the University of Tennessee Sctiool of Law. TABLE OF CONTENTS. Part 1.— QUASI CORPORATIONS. Chap. 1. Nature, Creation, Classification. 2. Quasi Corporations — Liabilities, Elements, Counties, Property, etc. 3. Same — Continued. 4. Same — Continued. Part 2.— MUNICIPAL CORPORATIONS. 5. Municipal Corporations. 6. Their Creation — How— By What Bodies— Subject to What Re- strictions, etc. 7. Their Alteration and Dissolution. 8. The Charter. 9. Legislative Control. 10. Proceedings and Ordinances. 11. Officers, Agents, and Employes. 12. Contracts. 13. ' Improvements. 14. Police Powers and Regulations. 15. Streets, Sewers, Parks, and Public Buildings. 16. Torts. 17. Debts, Funds, Expenses, and Administration. 18. Taxation. 19. Actions. Part 3.— QUASI PUBLIC CORPORATIONS. 20. Quasi Public Corporations. 21. Railroads. 22. Electric Companies. 23. Water and Gas Companies. 24. Other Quasi Public Corporations. C6o59-21 3aggarb on Sorts* 1895. 2 vols. 1307 pages. $7.50 delivered. By EDWIN A. JAGGARD, A. M., LL. B., Professor of the Law of Torts in Minnesota University Law School. TABLE OF CONTENTS. Part 1.— IN GENERAL. Chap. 1. General Nature of Torts. 2. Variations in the Normal Right to Sue. 3. Liability for Torts Committed by or with Others. 4. Discharge and Limitation of Liability for Torts. 5. Remedies. Part 2.— SPECIFIC WRONGS. 6. Wrongs AfEecting Safety and Freedom of Persons. 7. Injuries in Family Relations. 8. Wrongs Affecting Reputation. 9. Malicious Wrongs. 10. Wrongs to Possession and Property. 11. Nuisance. 12. Negligence. 13. Master and Servant. 14. Common Carriers. C6559-22 IHcKcbey on (£vibmcc. 1907. 540 pages. $3.75 delivered. By JOHN JAY McKELVEY, A. M., LL. B., Author of "Common-Law Pleading," etc. Second Edition. TABLE OF CONTENTS. Chap 1. Introductory. 2. Judicial Notice. 3. Questions of Law and Questions of Fact. 4. Burden of Proof. 5. Presumptions. 6. Admissions. 7. Confessions. 8. Matters Excluded as Unimportant, or as Misleading, though Logically Relevant. 9. Character. 10. Opinion Evidence. 11. Hearsay. 12. Witnesses. 13. Examination of Witnesses. 14. Writings. 15. Demurrers to Evidence. 06559-23 Horton on Bills anb VCoks. 1900. 600 pages. $3.75 delivered. By PROF. CHARLES P. NORTON. Third Edition: By Francis B. Tiffany. TABLE OF CONTENTS. Chap. 1. Of Negotiability so far as it Relates to Bills and Notes. 2. Of Negotiable Bills and Notes, and their Formal and Essea- tial Requisites. 3. Acceptance of Bills of Exchange. 4. Indorsement. 5. Of the Nature of the Liabilities of the Parties. 6. Transfer. 7. Defenses as against Purchaser for Value without Notice. 8. The Purchaser for Value without Notice. 9. Of Presentment and Notice of Dishonor. 10. Checks. Appendix. 06559-24 5t?tpman on (£ommon=£atP Pleabtng. 1895. 615 pages. $3.75 delivered. By BENJAMIN J. SHIPMAN, LL. B. Second Edition. TABLE OF CONTENTS. Chap. 1. Forms of Action. 2. Forms of Action. 3. Ttie Parties to Actions. 4. The Proceedings in an Action. 5. Ttie Declaration. G. The Production of the Issue. 7. Materialty in Pleading. 8. Singleness or Unity in Pleading. 9. Certainty in Pleading. 10. Consistency and Simplicity in Pleading. 11. Directness and Brevity in Pleading. 12. Miscellaneous Rules. Appendix. C6559-25 St?tpman on (Equity Pleabtng. 1897. 644 pages. $3.75 delivered. By BENJ. J. SHIPMAN, LL. B., Author of "Shipman's Common-Law Pleading." TABLE OF CONTENTS. Chap. 1. Equity Pleading in General. 2. Parties. 3. Proceedings in an Equitable Suit. 4. Bills In Equity. 5. The Disclaimer. 6. Demurrer. 7. The Plea. 8. The Answer. 9. The Replication. C05d9-1'G Smitt? 5 (flemcntarg taw. 1896. 367 pages. $3.T5 delivered. BY WALTER DENTON SMITH, Instructor in the Law Department of tlie University of Micliigan. TABLE OF CONTENTS. Chap. Part 1.— ELEMENTARY JURISPRUDENCE. 1. Nature of Law and the Various Systems. 2. Government and its Functions. 3. Government in the United States. 4. The Unwritten Law. 5. Equity. 6. The Written Law. 7. The Authorities and their Interpretation. 8. Persons and Personal Rights. 9. Property. 10. Classification of the Law. Part 2.— THE SUBSTANTIVE LAW. 11. Constitutional and Administrative Law. 12. Criminal Law. 13. The Law of Domestic Relations. 14. Corporeal and Incorporeal Hereditaments. 15. Estates in Real Property. 16. Title to Real Property. 17. Personal Property. 18. Succession After Death. 19. Contracts. 20. Special Contracts. 21. Agency. , 22. Commercial Associations. 23. Torts. Part 3.— THE ADJECTIVE LAW. 24. Remedies. 25. Courts and their Jurisdiction. 26. Procedure. 27. Trials. CU.J59- Ciffany on Ctgcncy. 1903. 609 pages. $3.75 delivered. By FRANCIS B. TIFFANY, Author of "Death by Wrongful Act," -'Law of Sales," etc. TABLE OF CONTENTS. Chap. Part 1.— IN GENERAL. 1. Introductory — Definitions. 2. Creation of the Relation of Principal and Agent— Appointment. 3. Same (continued) — Ratification. 4. What Acts Can be Done by Agent— Illegality— Capacity of Parties — Joint Principals and Agents. 5. Delegation by Agent — Subagents. 6. Termination of the Relation. 7. Construction of Authority. Part 2.— RIGHTS AND LIABILITIES BETWEEN PRINCIPAL AND THIRD PERSON. 8. Liability of Principal to Third Person — Contract. 9. Same (continued). 10. Admissions by Agent — Notice to Agent. 11. Liability of Principal to Third Person — ^Torts and Crimes. 12. Liability of Third Person to Principal. Part 3.— RIGHTS AND LIABILITIES BETWEEN AGENT AND THIRD PERSON. 13. Liability of Agent to Third Person (including parties to con- tracts). 14. Liability of Third Person to Agent. Part 4.— RIGHTS AND LIABILITIES BETWEEN PRINCIPAL AND AGENT. 15. Duties of Agent to Principal. 16. Duties of Principal to Agent. Appendix. C6559-28 Ciffany on Persons anb Domestic 2leIations* 1909. 656 pages. $3.75 delivered. By WALTER C. TIFFANY. Second Edition : Edited by Roger W. Cooley. TABLE OF CONTENTS. Cbap. Part 1.— HUSBAND AND WIFE. .1. Marriage. 2. Persons of the Spouses as Affected by Coverture. 3. Rights in Property as affected by Coverture. 4. Contracts, Conveyances, etc., and Quasi-Contractual Obliga- tions. 5. Wife's Equitable and Statutory Separate Estate. 6. Antenuptial and Postnuptial Settlements. 7. Separation and Divorce. Part 2.— PARENT AND CHILD. 8. Legitimacy, Illegitimacy, and Adoption. 9. Duties and Liabilities of Parents. 10. Rights of Parents and of Children. Part 3.— GUARDIAN AND WARD. 11. Guardians Defined — Selection and Appointment. 12. Rights, Duties, and Liabilities of Guardians. 13. Termination of Guardianship — Enforcing Guardian's Liability. Part 4.— INFANTS, PERSONS NON COMPOTES MENTIS, AND ALIENS. 14. Infants. 15. Persons Non Compotes Mentis and Aliens. Part 5.— MASTER AJVD SERVANT. 16. Creation and Termination of Relation. C6559a-29 2^tffany on Sales. 1908. 534 pages. $3.75 delivered. By FRANCIS B. TIFFANY, A. B., LL. B. Author of "TlfCany on Death by Wrongful Act." Second Edition. TABLE OF CONTENTS. Chap. 1. Formation of the Contract. 2. Formation of the Contract — Under the Statute of Frauds. 3. Effect of the Contract in Passing the Property — Sale of Spe- cific Goods. 4. Effect of the Contract In Passing the Property — Sale of Goods not Specific. 5. Fraud, and Retention of Possession. 6. Illegality. 7. Conditions and Warranties. 8. Performance. 9. Rights of Unpaid Seller against the Goods. 10. Action for Breach of the Contract. Appendix: Sales Act — English Sale of Goods Act. O6559a-30 Vanc(^ on 3nsurance, 1896. 083 pages. $3.75 delivered. By WILLIAM REYNOLDS VANCE, Professor of Law in the George Washington University., The principal object of this treatise is to give a consistent state- ment of logically developed principles that underlie all contracts of insurance, with subsidiary chapters treating of the rules peculiar to the several different kinds of insurance. Special attention has been given to the construction of the standard fire policy. This treatment will help to bring about, we believe, the much desired clarification of this branch of the law. The chapters cover, — Historical and Introductory. Nature and Requisites of Contract. Parties. Insurable Interest. Making the CJontract. The Consideration. Consent of the Parties— Concealment Consent of the Parties — Warranties. Agents and their Powers. Waiver and Estoppel. The Standard Fire Policy. Terms of the Life Policy. Marine Insurance. Accident Insurance. Guaranty, Credit, and Liability Insurance. Appendix. J C0559-31